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diff --git a/41046-0.txt b/41046-0.txt index 17af7ec..df655d2 100644 --- a/41046-0.txt +++ b/41046-0.txt @@ -1,36 +1,4 @@ -The Project Gutenberg EBook of International Law. A Treatise. Volume I (of -2), by Lassa Francis Oppenheim - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: International Law. A Treatise. Volume I (of 2) - Peace. Second Edition - -Author: Lassa Francis Oppenheim - -Release Date: October 16, 2012 [EBook #41046] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK INTERNATIONAL LAW, A TREATISE, VOL I *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive/American -Libraries.) - - - - +*** START OF THE PROJECT GUTENBERG EBOOK 41046 *** [Transcriber's note: Original spelling variations have not been standardized. Underscores have been used to indicate _italic_ fonts.] @@ -27262,361 +27230,4 @@ Edinburgh & London End of the Project Gutenberg EBook of International Law. A Treatise. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: International Law. A Treatise. Volume I (of 2) - Peace. Second Edition - -Author: Lassa Francis Oppenheim - -Release Date: October 16, 2012 [EBook #41046] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK INTERNATIONAL LAW, A TREATISE, VOL I *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive/American -Libraries.) - - - - - -[Transcriber's note: Original spelling variations have not been -standardized. Underscores have been used to indicate _italic_ fonts.] - - -INTERNATIONAL LAW - - -A TREATISE - -BY - -L. OPPENHEIM, M.A., LL.D. - -WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE - -MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW - -HONORARY MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID - - -VOL. I. - -PEACE - -_SECOND EDITION_ - - -LONGMANS, GREEN AND CO. - -39 PATERNOSTER ROW, LONDON - -NEW YORK, BOMBAY, AND CALCUTTA - -1912 - - -All rights reserved - - - - - TO - EDWARD ARTHUR WHITTUCK - WHOSE SYMPATHY AND ENCOURAGEMENT HAVE ACCOMPANIED THE PROGRESS - OF THIS WORK FROM ITS INCEPTION TO ITS CLOSE - - - - -PREFACE - -TO THE SECOND EDITION - - -The course of events since 1905, when this work first made its -appearance, and the results of further research have necessitated not -only the thorough revision of the former text and the rewriting of some -of its parts, but also the discussion of a number of new topics. But -while the new matter which has been incorporated has added considerably -to the length of the work--the additions to the bibliography, text, and -notes amounting to nearly a quarter of the former work--this second -edition is not less convenient in size than its predecessor. By -rearranging the matter on the page, using a line extra on each, and a -greater number of words on a line, by setting the bibliography and notes -in smaller type, and by omitting the Appendix, it has been found -possible to print the text of this new edition on 626 pages, as compared -with 594 pages of the first edition. - -The system being elastic it was possible to place most of the additional -matter within the same sections and under the same headings as before. -Some of the points treated are, however, so entirely new that it was -necessary to deal with them under separate headings, and within separate -sections. The reader will easily distinguish them, since, to avoid -disturbing the arrangement of topics, these new sections have been -inserted between the old ones, and numbered as the sections preceding -them, but with the addition of the letters _a_, _b_, &c. The more -important of these new sections are the following: § 178_a_ (concerning -the Utilisation of the Flow of Rivers); §§ 287_a_ and 287_b_ -(concerning Wireless Telegraphy on the Open Sea); §§ 287_c_ and 287_d_ -(concerning Mines and Tunnels in the Subsoil of the Sea bed); § 446_a_ -(concerning the Casa Blanca incident); §§ 476_a_ and 476_b_ (concerning -the International Prize Court and the suggested International Court of -Justice); §§ 568_a_ and 568_b_ (concerning the Conventions of the Second -Hague Peace Conference, and the Declaration of London); § 576_a_ -(concerning Pseudo-Guarantees). Only towards the end of the volume has -this mode of dealing with the new topics been departed from. As the -chapter treating of Unions, the last of the volume, had to be entirely -rearranged and rewritten, and a new chapter on Commercial Treaties -inserted, the old arrangement comes to an end with § 577; and §§ 578 to -596 of this new edition present an arrangement of topics which differs -from that of the former edition. - -I venture to hope that this edition will be received as favourably as -was its predecessor. My aim, as always, has been to put the matter as -clearly as possible before the reader, and nowhere have I forgotten that -I am writing as a teacher for students. It is a matter of great -satisfaction to me that the prophetic warnings of some otherwise very -sympathetic reviewers that a comprehensive treatise on International Law -in two volumes would never be read by young students have proved -mistaken. The numerous letters which I have received from students, not -only in this country but also in America, Japan, France, and Italy, show -that I was not wrong when, in the preface to the former edition, I -described the work as an elementary book for those beginning to study -the subject. Many years of teaching have confirmed me in the conviction -that those who approach the study of International Law should at the -outset be brought face to face with its complicated problems, and should -at once acquire a thorough understanding of the wide scope of the -subject. If writers and lecturers who aim at this goal will but make -efforts to use the clearest language and an elementary method of -explanation, they will attain success in spite of the difficulty of the -problems and the wide range of topics to be considered. - -I owe thanks to many reviewers and readers who have drawn my attention -to mistakes and misprints in the first edition, and I am especially -indebted to Mr. C. J. B. Hurst, C.B., Assistant Legal Adviser to the -Foreign Office, to Mr. E. S. Roscoe, Admiralty Registrar of the High -Court, and to Messrs. F. Ritchie and G. E. P. Hertslet of the Foreign -Office who gave me valuable information on certain points while I was -preparing the manuscript for this edition. And I must likewise most -gratefully mention Miss B. M. Rutter and Mr. C. F. Pond who have -assisted me in reading the proofs and have prepared the table of cases -and the exhaustive alphabetical index. - - L. OPPENHEIM. - - WHEWELL HOUSE, - CAMBRIDGE, - _November 1, 1911_. - - - - -ABBREVIATIONS - -OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT - - -The books referred to in the bibliography and notes are, as a rule, -quoted with their full titles and the date of their publication. But -certain books and periodicals which are very often referred to -throughout this work are quoted in an abbreviated form, as follows:-- - - A.J. = The American Journal of International - Law. - Annuaire = Annuaire de l'Institut de Droit - International. - Bluntschli = Bluntschli, Das moderne Völkerrecht der - civilisirten Staaten als Rechtsbuch - dargestellt, 3rd ed. (1878). - Bonfils = Bonfils, Manuel De Droit International - Public, 5th ed. by Fauchille (1908). - Bulmerincq = Bulmerincq, Das Völkerrecht (1887). - Calvo = Calvo, Le Droit International etc., 5th - ed. 6 vols. (1896). - Despagnet = Despagnet, Cours De Droit International - Public, 4th ed. by de Boeck (1910). - Field = Field, Outlines of an International Code - (1872). - Fiore = Fiore, Nouveau Droit International - Public, deuxième édition, traduite de - l'Italien et annotée par Antoine, 3 - vols. (1885). - Fiore, Code = Fiore, Le Droit International Codifié, - nouvelle édition, traduite de - l'Italien par Antoine (1911). - Gareis = Gareis, Institutionen des Völkerrechts, - 2nd ed. (1910). - Grotius = Grotius, De Jure Belli ac Pacis (1625). - Hall = Hall, A Treatise on International Law, - 4th ed. (1895). - Halleck = Halleck, International Law, 3rd English - ed. by Sir Sherston Baker, 2 vols. - (1893). - Hartmann = Hartmann, Institutionen des praktischen - Völkerrechts in Friedenszeiten - (1874). - Heffter = Heffter, Das Europäische Völkerrecht der - Gegenwart, 8th ed. by Geffcken (1888). - Heilborn, System = Heilborn, Das System des Völkerrechts - entwickelt aus den völkerrechtlichen - Begriffen (1896). - Holland, Studies = Holland, Studies in International Law - (1898). - Holland, - Jurisprudence = Holland, The Elements of Jurisprudence, - 6th ed. (1893). - Holtzendorff = Holtzendorff, Handbuch des Völkerrechts, - 4 vols. (1885-1889). - Klüber = Klüber, Europäisches Völkerrecht, 2nd ed. - by Morstadt (1851). - Lawrence = Lawrence, The Principles of International - Law, 4th ed.(1910). - Lawrence, Essays = Lawrence, Essays on some Disputed - Questions of Modern International Law - (1884). - Liszt = Liszt, Das Völkerrecht, 6th ed. (1910). - Lorimer = Lorimer, The Institutes of International - Law, 2 vols. (1883-1884). - Maine = Maine, International Law, 2nd ed. (1894). - Manning = Manning, Commentaries on the Law of - Nations, new ed. by Sheldon Amos - (1875). - Martens = Martens, Völkerrecht, German translation - of the Russian original in 2 vols. - (1883). - Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens - Moderne De L'Europe, nouvelle éd. par - Vergé, 2 vols. (1858). - Martens, R. | - Martens, N.R. | - Martens, N.S. | - Martens, N.R.G. | - Martens, N.R.G. | - 2nd Ser. | - Martens, N.R.G. | - 3rd Ser. | = These are the abbreviated quotations of - the different parts of Martens, - Recueil De Traités (see p. 102 of - this volume), which are in common - use. - Martens, Causes - Célèbres = Martens, Causes Célèbres Du Droit Des - Gens, 5 vols., 2nd ed. (1858-1861). - Mérignhac = Mérignhac, Traité De Droit Public - International, vol. i. (1905), vol. - ii. (1907). - Moore = Moore, A Digest of International Law, 8 - vols., Washington (1906). - Nys = Nys, Le Droit International, 3 vols. - (1904-1906). - Perels = Perels, Das internationale öffentliche - Seerecht der Gegenwart, 2nd ed. - (1903). - Phillimore = Phillimore, Commentaries upon - International Law, 4 vols. 3rd ed. - (1879-1888). - Piedelièvre = Piedelièvre, Précis De Droit - International Public, 2 vols. - (1894-1895). - Pradier-Fodéré = Pradier-Fodéré, Traité De Droit - International Public, 8 vols. - (1885-1906). - Pufendorf = Pufendorf, De Jure Naturae et Gentium - (1672). - Rivier = Rivier, Principes Du Droit Des Gens, 2 - vols. (1896). - R.I. = Revue De Droit International Et De - Législation Comparée. - R.G. = Revue Général De Droit International - Public. - Taylor = Taylor, A Treatise on International - Public Law (1901). - Testa = Testa, Le Droit Public International - Maritime, traduction du Portugais - par Boutiron (1886). - Twiss = Twiss, The Law of Nations, 2 vols., 2nd - ed. (1884, 1875). - Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908). - Vattel = Vattel, Le Droit Des Gens, 4 books in 2 - vols., nouvelle éd. (Neuchâtel, - 1773). - Walker = Walker, A Manual of Public International - Law (1895). - Walker, History = Walker, A History of the Law of Nations, - vol. i. (1899). - Walker, Science = Walker, The Science of International Law - (1893). - Westlake = Westlake, International Law, 2 vols. - (1904-1907). - Westlake, Chapters = Westlake, Chapters on the Principles of - International Law (1894). - Wharton = Wharton, A Digest of the International - Law of the United States, 3 vols. - (1886). - Wheaton = Wheaton, Elements of International Law, - 8th American ed. by Dana (1866). - Z.V. = Zeitschrift für Völkerrecht und - Bundesstaatsrecht. - - - - -CASES CITED - - -Aegi, § 437, p. 496 - -Ambrose Light, the, § 273, p. 342 note 2; § 276, p. 345 note 1 - -Amelia Island, § 132, p. 186 - -Anderson, John, § 147, p. 205 note 1 - -Anna, the, § 234, p. 301 - -Aubespine, L', § 387, p. 459 - - -Bartram _v._ Robertson, § 580, p. 611 note 1 - -Bass, de, § 387, p. 459 - -Beckert, Wilhelm, § 402, p. 474 - -Belgenland, the, § 265, p. 335 note 3 - -Belle-Isle, Maréchal de, § 398, p. 471 - -Boisset, M., § 163, p. 220 - -Botiller _v._ Dominguez, § 546, p. 578 note 2 - -Brooke, Sir James, § 209, p. 282 note 2 - -Brunswick, Duke of, _v._ King of Hanover, § 353, p. 433 - - -Canning, George, and the Russian Ambassador, § 481, p. 532 - -Canning, Sir Stratford, § 375, p. 451 - -Caroline, the, § 133, p. 187; § 444, p. 501; § 446, p. 501 - -Casa Blanca, § 446_a_, p. 502; § 476, p. 521 - -Castioni, _Ex parte_, § 334, p. 415 note 4 - -Cellamare, Prince, § 388, p. 459 - -Cespedes, the, § 273, p. 343, note 1 - -Charkieh, the, § 91, p. 144 note 1; § 450, p. 507 note 1 - -Charlton, Porter, § 330, p. 408 - -Chartered Mercantile Bank of India _v._ Netherlands India Steam -Navigation Co., § 265, p. 335 note 2 - -Cherokee Tobacco, the, § 546, p. 578 note 2 - -Constitution, the, § 450, p. 507 note 1 - -Cook _v._ Sprigg, § 82, p. 129 note 4 - -Costa Rica Packet, the, § 162, p. 217 - -Cutting, § 147, p. 205 - - -Danish Fleet, the, § 131, p. 186 - -De Jager _v._ The Attorney-General for Natal, § 317, p. 394 - -De Haber _v._ Queen of Portugal, § 115, p. 169 note 2 - -Delagoa Bay, § 247, p. 313 - -Dogger Bank, § 163, p. 219 note 2 - -Dubois, § 392, p. 465 - - -Exchange, the, § 450, p. 507 note 1 - - -Fonds pieux des Californias, § 476, p. 521 - -Franconia, the, § 25, p. 29 - - -Gallatin, § 403, p. 474 note 1 - -Germany, Great Britain, and Italy _v._ Venezuela, § 476, p. 521 - -Germany, France, and Great Britain _v._ Japan, § 476, p. 521 - -Gore and Pinkney, § 458, p. 513 - -Guébriant, Madame de, § 370, p. 447 - -Gurney, § 402, p. 473 note 2 - -Gyllenburg, § 388, p. 459 - - -Haggerty, § 427, p. 489 - -Hall _v._ Campbell, § 240, p. 306 note 1 - -Hellfeld _v._ Russian Government, § 115, p. 169 note 4 - -Huascar, the, § 273, p. 342 - -Huus _v._ New York and Porto Rico Steamship Co., § 579, p. 609 note 1 - - -Indian Chief, the, § 434, p. 494 note 1 - -Ionian Ships, § 93, p. 146 note 1 - -Isabella, Queen of Spain, § 351, p. 432 - - -Jacquin, § 335, p. 416 - -Jager. _See_ De Jager - -Jassy, the, § 450, p. 507 note 1 - -Johann Friederich, the, § 265, p. 335 note 2; § 271, p. 339 note 1 - - -Kalkstein, § 390, p. 464 - -Keiley, § 375, p. 450 - -Koszta, Martin, § 313, p. 388 note 1 - - -Lebanon, the. _See_ Vaderland - -L'Aubespine. _See_ Aubespine - - -McLeod, § 133, p. 187 note 2; § 446, p. 501 - -Macartney _v._ Garbutt, § 375, p. 450 note 2; § 394, p. 467 note 1 - -Magdalena Steam Navigation Co. _v._ Martin, § 391, p. 465 note 2 - -Maori King, the, § 261, p. 331 note 1 - -Mendoza, § 387, p. 459 - -Meunier, _In re_, § 334, p. 415 note 4; § 338, p. 418 note 3 - -Monaldeschi, § 348, p. 431 note 1 - -Montagnini, § 106, p. 160 note 1; § 386, p. 458 note 1; § 411, p. 478 -note 2 - -Montezuma, the, § 273, p. 343 note 1 - -Monti, Marquis de, § 400, p. 472 - -Moray Firth, § 191, p. 263 note 3. _See also_ Mortensen _v._ Peters - -Mortensen _v._ Peters, § 22, p. 28 note 1; § 192, p. 264 note 2 - -Muscat Dhows, the, § 295, p. 372 note 2; § 476, p. 521 - -Musgrove _v._ Chun Teeong Toy, § 141, p. 200 note 1 - - -Nereide, the, § 21, p. 26 note 2 - -Nikitschenkow, § 390, p. 463 - -Nillins, § 330, p. 407 - -North Atlantic Coast Fisheries, § 191, p. 262 note 1; § 205, p. 276 -note 2; § 458, p. 513 note 1; § 476, p. 522 - -Norway _v._ Sweden, § 476, p. 522 - - -Orinoco Steamship Co., § 476, p. 522 - - -Paladini, § 330, p. 408 - -_Panther_, the, § 163, p. 219 - -Paquette Habana, the, § 21, p. 26 note 2 - -Parkinson _v._ Potter, § 394, p. 467 note 1 - -Parlement Belge, the, § 450, p. 507 note - -Platen-Hallermund, § 240, p. 306 - -Porteña, the, § 273, p. 343 note 1 - -Pouble, Cirilo, § 147, p. 205 note 1 - -Prioleau _v._ United States, § 82, p. 129 note 1; § 115, p. 169 note 3 - - -Reg. _v._ Cunningham, § 194, p. 266 note 2 - -Republic of Bolivia _v._ The Indemnity Mutual Marine Assurance Co., § -272, p. 341 note 1 - -Republic of Mexico _v._ Francisco de Arrangoiz, § 115, p. 169 note 1 - -Ripperda, Duke of, § 390, p. 461 - -Ross, Bishop, § 362, p. 443 note 1 - - -Sà, Don Pantaleon, § 404, p. 475 - -Sackville, Lord, § 383, p. 455 note 1 - -Santa Lucia, § 247, p. 313 - -Sapphire, the, § 115, p. 169 note 1 - -Savarkar, § 332, p. 410; § 476, p. 522 - -Schnaebélé, § 456, p. 511 - -Scotia, the, § 21, p. 26 note 2 - -Shenandoah, the, § 273, p. 343 - -Soulé, § 398, p. 470 - -Springer, § 390, p. 461 - -Strathclyde, the. _See_ Franconia, the - -Sully, § 396, p. 468 - -Sun Yat Sen, § 390, p. 464 - - -Taylor _v._ Best, § 391, p. 465 note 2 - -Tourville, § 330, p. 407 - - -United States _v._ Repentigny, § 240, p. 306 note 1 - -United States _v._ Prioleau, § 82, p. 129 note 1; § 115, p. 169 note 3 - -United States _v._ Smith, § 21, p. 26 note 2 - -United States _v._ Venezuela, § 476, p. 522 - -United States _v._ Wagner, § 115, p. 169 note 1 - - -Vaderland, the, § 287_b_, p. 357 - -Vavasseur _v._ Krupp, § 115, p. 169 note 2 - -Vexaincourt, § 163, p. 219 - -Virginius, the, § 133, p. 187 note 2 - - -Waddington, Carlo, § 404, p. 475 - -Washburne, § 399, p. 471 - -West Rand Central Mining Co. _v._ The King, § 21, p. 26 note 2; § 82, p. -129 note 4 - -William, King of Holland, § 350, p. 432 - -Whitney _v._ Robertson, § 546, p. 578 note 2; § 580, p. 611 note 1 - -Wrech, Baron de, § 391, p. 465 - - - - -CONTENTS - -OF - -THE FIRST VOLUME - - -INTRODUCTION - -CHAPTER I--FOUNDATION OF THE LAW OF NATIONS - - I. _The Law of Nations as Law_ - - SECT. PAGE - - 1. Conception of the Law of Nations 3 - 2. Legal Force of the Law of Nations contested 4 - 3. Characteristics of Rules of Law 6 - 4. Law-giving authority not essential for the existence of - Law 6 - 5. Definition and Three Essential Conditions of Law 8 - 6. Law not to be identified with Municipal Law 9 - 7. The "Family of Nations" a Community 9 - 8. The "Family of Nations" a Community with Rules of Conduct 11 - 9. External Power for the enforcement of Rules of - International Conduct 13 - 10. Practice recognises Law of Nations as Law 14 - - II. _Basis of the Law of Nations_ - - 11. Common Consent the Basis of Law 15 - 12. Common Consent of the Family of Nations the Basis of - International Law 16 - 13. States the Subjects of the Law of Nations 19 - 14. Equality an Inference from the Basis of International Law 20 - - III. _Sources of the Law of Nations_ - - 15. Source in Contradistinction to Cause 20 - 16. The Two Sources of International Law 21 - 17. Custom in Contradistinction to Usage 22 - 18. Treaties as Source of International Law 23 - 19. Factors influencing the Growth of International Law 24 - - IV. _Relations between International and Municipal Law_ - - 20. Essential Difference between International and Municipal - Law 25 - 21. Law of Nations never per se Municipal Law 26 - 22. Certain Rules of Municipal Law necessitated or - interdicted 27 - 23. Presumption against conflicts between International and - Municipal Law 28 - 24. Presumption of Existence of certain necessary - Municipal Rules 28 - 25. Presumption of the Existence of certain Municipal Rules in - Conformity with Rights granted by the Law of Nations 28 - - V. _Dominion of the Law of Nations_ - - 26. Range of Dominion of International Law controversial 30 - 27. Three Conditions of Membership of the Family of Nations 31 - 28. Present Range of Dominion of the Law of Nations 32 - 29. Treatment of States outside the Family of Nations 34 - - VI. _Codification of the Law of Nations_ - - 30. Movement in Favour of Codification 35 - 31. Work of the First Hague Peace Conference 37 - 32. Work of the Second Hague Peace Conference and the Naval - Conference of London 38 - 33. Value of Codification of International Law contested 40 - 34. Merits of Codification in general 40 - 35. Merits of Codification of International Law 42 - 36. How Codification could be realised 44 - -CHAPTER II--DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS - - I. _Development of the Law of Nations before Grotius_ - - 37. No Law of Nations in Antiquity 45 - 38. The Jews 46 - 39. The Greeks 49 - 40. The Romans 50 - 41. No need for a Law of Nations during the Middle Ages 53 - 42. The Fifteenth and Sixteenth Centuries 54 - - II. _Development of the Law of Nations after Grotius_ - - 43. The time of Grotius 59 - 44. The period 1648-1721 61 - 45. The period 1721-1789 64 - 46. The period 1789-1815 64 - 47. The period 1815-1856 66 - 48. The period 1856-1874 69 - 49. The period 1874-1899 71 - 50. The Twentieth Century 74 - 51. Six Lessons of the History of the Law of Nations 80 - - III. _The Science of the Law of Nations_ - - 52. Forerunners of Grotius 83 - 53. Grotius 85 - 54. Zouche 88 - 55. The Naturalists 89 - 56. The Positivists 90 - 57. The Grotians 92 - 58. Treatises of the Nineteenth and Twentieth Centuries 94 - 59. The Science of the Law of Nations in the Nineteenth and - Twentieth Centuries, as represented by Treatises 98 - 60. Collection of Treatises 102 - 61. Bibliographies 103 - 62. Periodicals 103 - - -PART I--_THE SUBJECTS OF THE LAW OF NATIONS_ - -CHAPTER I--INTERNATIONAL PERSONS - - I. _Sovereign States as International Persons_ - - 63. Real and apparent International Persons 107 - 64. Conception of the State 108 - 65. Not-full Sovereign States 109 - 66. Divisibility of Sovereignty contested 110 - 67. Meaning of Sovereignty in the Sixteenth and - Seventeenth Centuries 111 - 68. Meaning of Sovereignty in the Eighteenth Century 112 - 69. Meaning of Sovereignty in the Nineteenth Century 113 - 70. Result of the Controversy regarding Sovereignty 115 - - II. _Recognition of States as International Persons_ - - 71. Recognition a condition of Membership of the Family of - Nations 116 - 72. Mode of Recognition 117 - 73. Recognition under Conditions 118 - 74. Recognition Timely and Precipitate 119 - 75. State Recognition in contradistinction to other - Recognitions 120 - - III. _Changes in the Condition of International Persons_ - - 76. Important in contradistinction to Indifferent Changes 121 - 77. Changes not affecting States as International Persons 122 - 78. Changes affecting States as International Persons 123 - 79. Extinction of International Persons 124 - - IV. _Succession of International Persons_ - - 80. Common Doctrine regarding Succession of International - Persons 125 - 81. How far Succession actually takes place 127 - 82. Succession in consequence of Absorption 127 - 83. Succession in consequence of Dismemberment 130 - 84. Succession in case of Separation or Cession 131 - - V. _Composite International Persons_ - - 85. Real and apparent Composite International Persons 132 - 86. States in Personal Union 133 - 87. States in Real Union 134 - 88. Confederated States (Staatenbund) 135 - 89. Federal States (Bundesstaaten) 136 - - VI. _Vassal States_ - - 90. The Union between Suzerain and Vassal State 140 - 91. International position of Vassal States 141 - - VII. _States under Protectorate_ - - 92. Conception of Protectorate 144 - 93. International position of States under Protectorate 145 - 94. Protectorates outside the Family of Nations 146 - - VIII. _Neutralised States_ - - 95. Conception of Neutralised States 147 - 96. Act and Condition of Neutralisation 148 - 97. International position of Neutralised States 149 - 98. Switzerland 151 - 99. Belgium 152 - 100. Luxemburg 152 - 101. The former Congo Free State 153 - - IX. _Non-Christian States_ - - 102. No essential difference between Christian and other - States 154 - 103. International position of non-Christian States except - Turkey and Japan 155 - - X. _The Holy See_ - - 104. The former Papal States 157 - 105. The Italian Law of Guaranty 158 - 106. International position of the Holy See and the Pope 159 - 107. Violation of the Holy See and the Pope 161 - - XI. _International Persons of the Present Day_ - - 108. European States 162 - 109. American States 163 - 110. African States 164 - 111. Asiatic States 164 - -CHAPTER II--POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS - - I. _International Personality_ - - 112. The so-called Fundamental Rights 165 - 113. International Personality a Body of Qualities 166 - 114. Other Characteristics of the position of the States - within the Family of Nations 167 - - II. _Equality, Rank, and Titles_ - - 115. Legal Equality of States 168 - 116. Political Hegemony of Great Powers 170 - 117. Rank of States 171 - 118. The Alternat 173 - 119. Titles of States 173 - - III. _Dignity_ - - 120. Dignity a Quality 174 - 121. Consequences of the Dignity of States 175 - 122. Maritime Ceremonials 176 - - IV. _Independence and Territorial and Personal Supremacy_ - - 123. Independence and Territorial as well as Personal - Supremacy as Aspects of Sovereignty 177 - 124. Consequences of Independence and Territorial and Personal - Supremacy 178 - 125. Violations of Independence and Territorial and Personal - Supremacy 179 - 126. Restrictions upon Independence 180 - 127. Restrictions upon Territorial Supremacy 182 - 128. Restrictions upon Personal Supremacy 183 - - V. _Self-preservation_ - - 129. Self-preservation an excuse for violations 184 - 130. What acts of self-preservation are excused 185 - 131. Case of the Danish Fleet (1807) 186 - 132. Case of Amelia Island 186 - 133. Case of the _Caroline_ 187 - - VI. _Intervention_ - - 134. Conception and Character of Intervention 188 - 135. Intervention by Right 189 - 136. Admissibility of Intervention in default of Right 193 - 137. Intervention in the interest of Humanity 194 - 138. Intervention _de facto_ a Matter of Policy 195 - 139. The Monroe Doctrine 196 - 140. Merits of the Monroe Doctrine 198 - - VII. _Intercourse_ - - 141. Intercourse a presupposition of International - Personality 199 - 142. Consequences of Intercourse as a presupposition of - International Personality 200 - - VIII. _Jurisdiction_ - - 143. Jurisdiction important for the position of the States - within the Family of Nations 201 - 144. Restrictions upon Territorial Jurisdiction 202 - 145. Jurisdiction over Citizens abroad 202 - 146. Jurisdiction on the Open Sea 203 - 147. Criminal Jurisdiction over Foreigners in Foreign States 203 - -CHAPTER III--RESPONSIBILITY OF STATES - - I. _On State Responsibility in General_ - - 148. Nature of State Responsibility 206 - 149. Original and Vicarious State Responsibility 207 - 150. Essential Difference between Original and Vicarious - Responsibility 208 - - II. _State Responsibility for International Delinquencies_ - - 151. Conception of International Delinquencies 209 - 152. Subjects of International Delinquencies 210 - 153. State Organs able to commit International Delinquencies 211 - 154. No International Delinquency without Malice or culpable - Negligence 212 - 155. Objects of International Delinquencies 212 - 156. Legal consequences of International Delinquencies 213 - - III. _State Responsibility for Acts of State Organs_ - - 157. Responsibility varies with Organs concerned 214 - 158. Internationally injurious Acts of Heads of States 214 - 159. Internationally injurious Acts of Members of Governments 215 - 160. Internationally injurious Acts of Diplomatic Envoys 215 - 161. Internationally injurious Attitudes of Parliaments 216 - 162. Internationally injurious Acts of Judicial Functionaries 216 - 163. Internationally injurious Acts of administrative - Officials and Military and Naval Forces 218 - - IV. _State Responsibility for Acts of Private Persons_ - - 164. Vicarious in contradistinction to Original State - Responsibility for Acts of Private Persons 221 - 165. Vicarious responsibility for Acts of Private Persons - relative only 222 - 166. Municipal Law for Offences against Foreign States 222 - 167. Responsibility for Acts of Insurgents and Rioters 222 - - -PART II--_THE OBJECTS OF THE LAW OF NATIONS_ - -CHAPTER I--STATE TERRITORY - - I. _On State Territory in General_ - - 168. Conception of State Territory 229 - 169. Different kinds of Territory 230 - 170. Importance of State Territory 231 - 171. One Territory, one State 231 - - II. _The different Parts of State Territory_ - - 172. Real and Fictional Parts of Territory 235 - 173. Territorial Subsoil 235 - 174. Territorial Atmosphere 236 - 175. Inalienability of Parts of Territory 238 - - III. _Rivers_ - - 176. Rivers State Property of Riparian States 239 - 177. Navigation on National, Boundary, and not-National - Rivers 240 - 178. Navigation on International Rivers 241 - 178_a_. Utilisation of the Flow of Rivers 243 - - IV. _Lakes and Land-locked Seas_ - - 179. Lakes and Land-locked Seas State Property of Riparian - States 245 - 180. So-called International Lakes and Land-locked Seas 246 - 181. The Black Sea 247 - - V. _Canals_ - - 182. Canals State Property of Riparian States 248 - 183. The Suez Canal 249 - 184. The Panama Canal 251 - - VI. _Maritime Belt_ - - 185. State Property of Maritime Belt contested 255 - 186. Breadth of Maritime Belt 256 - 187. Fisheries, Cabotage, Police, and Maritime Ceremonials - within the Belt 257 - 188. Navigation within the Belt 258 - 189. Jurisdiction within the Belt 260 - 190. Zone for Revenue and Sanitary Laws 261 - - VII. _Gulfs and Bays_ - - 191. Territorial Gulfs and Bays 262 - 192. Non-territorial Gulfs and Bays 263 - 193. Navigation and Fishery in Territorial Gulfs and Bays 265 - - VIII. _Straits_ - - 194. What Straits are Territorial 265 - 195. Navigation, Fishery, and Jurisdiction in Straits 266 - 196. The former Sound Dues 267 - 197. The Bosphorus and Dardanelles 268 - - IX. _Boundaries of State Territory_ - - 198. Natural and Artificial Boundaries 270 - 199. Boundary Waters 270 - 200. Boundary Mountains 272 - 201. Boundary Disputes 272 - 202. Natural Boundaries _sensu politico_ 273 - - X. _State Servitudes_ - - 203. Conception of State Servitudes 273 - 204. Subjects of State Servitudes 276 - 205. Object of State Servitudes 276 - 206. Different kinds of State Servitudes 278 - 207. Validity of State Servitudes 279 - 208. Extinction of State Servitudes 280 - - XI. _Modes of acquiring State Territory_ - - 209. Who can acquire State Territory? 281 - 210. Former Doctrine concerning Acquisition of Territory 282 - 211. What Modes of Acquisition of Territory there are 283 - 212. Original and derivative Modes of Acquisition 284 - - XII. _Cession_ - - 213. Conception of Cession of State Territory 285 - 214. Subjects of Cession 285 - 215. Object of Cession 286 - 216. Form of Cession 286 - 217. Tradition of the ceded Territory 288 - 218. Veto of third Powers 289 - 219. Plebiscite and Option 289 - - XIII. _Occupation_ - - 220. Conception of Occupation 291 - 221. Object of Occupation 292 - 222. Occupation how effected 292 - 223. Inchoate Title of Discovery 294 - 224. Notification of Occupation to other Powers 294 - 225. Extent of Occupation 295 - 226. Protectorate as Precursor of Occupation 296 - 227. Spheres of influence 297 - 228. Consequences of Occupation 298 - - XIV. _Accretion_ - - 229. Conception of Accretion 299 - 230. Different kinds of Accretion 299 - 231. Artificial formations 299 - 232. Alluvions 300 - 233. Deltas 300 - 234. New-born Islands 301 - 235. Abandoned River-beds 302 - - XV. _Subjugation_ - - 236. Conception of Conquest and of Subjugation 302 - 237. Subjugation in Contradistinction to Occupation 303 - 238. Justification of Subjugation as a Mode of Acquisition 304 - 239. Subjugation of the whole or of a part of Enemy Territory 304 - 240. Consequences of Subjugation 305 - 241. Veto of third Powers 307 - - XVI. _Prescription_ - - 242. Conception of Prescription 308 - 243. Prescription how effected 309 - - XVII. _Loss of State Territory_ - - 244. Six modes of losing State Territory 311 - 245. Operation of Nature 312 - 246. Revolt 312 - 247. Dereliction 313 - -CHAPTER II--THE OPEN SEA - - I. _Rise of the Freedom of the Open Sea_ - - 248. Former Claims to Control over the Sea 315 - 249. Practical Expression of claims to Maritime Sovereignty 317 - 250. Grotius's Attack on Maritime Sovereignty 318 - 251. Gradual recognition of the Freedom of the Open Sea 319 - - II. _Conception of the Open Sea_ - - 252. Discrimination between Open Sea and Territorial Waters 321 - 253. Clear Instances of Parts of the Open Sea 322 - - III. _The Freedom of the Open Sea_ - - 254. Meaning of the Term "Freedom of the Open Sea" 323 - 255. Legal Provisions for the Open Sea 324 - 256. Freedom of the Open Sea and War 325 - 257. Navigation and ceremonials on the Open Sea 326 - 258. Claim of States to Maritime Flag 326 - 259. Rationale for the Freedom of the Open Sea 327 - - IV. _Jurisdiction on the Open Sea_ - - 260. Jurisdiction on the Open Sea mainly connected with Flag 329 - 261. Claim of Vessels to sail under a certain Flag 329 - 262. Ship Papers 331 - 263. Names of Vessels 332 - 264. Territorial Quality of Vessels on the Open Sea 332 - 265. Safety of Traffic on the Open Sea 333 - 266. Powers of Men-of-war over Merchantmen of all Nations 335 - 267. How Verification of Flag is effected 337 - 268. How Visit is effected 337 - 269. How Search is effected 338 - 270. How Arrest is effected 338 - 271. Shipwreck and Distress on the Open Sea 339 - - V. _Piracy_ - - 272. Conception of Piracy 340 - 273. Private Ships as Subjects of Piracy 341 - 274. Mutinous Crew and Passengers as Subjects of Piracy 343 - 275. Object of Piracy 344 - 276. Piracy, how effected 344 - 277. Where Piracy can be committed 345 - 278. Jurisdiction over Pirates and their Punishment 345 - 279. _Pirata non mutat dominium_ 346 - 280. Piracy according to Municipal Law 347 - - VI. _Fisheries in the Open Sea_ - - 281. Fisheries in the Open Sea free to all Nations 348 - 282. Fisheries in the North Sea 349 - 283. Bumboats in the North Sea 351 - 284. Seal Fisheries in Behring Sea 351 - 285. Fisheries around the Faröe Islands and Iceland 353 - - VII. _Telegraph Cables in the Open Sea_ - - 286. Telegraph Cables in the Open Sea admitted 353 - 287. International Protection of Submarine Telegraph Cables 354 - - VIII. _Wireless Telegraphy on the Open Sea_ - - 287_a_. Radiotelegraphy between Ships and the Shore 355 - 287_b_. Radiotelegraphy between Ships at Sea 356 - - IX. _The Subsoil beneath the Sea Bed_ - - 287_c_. Five Rules concerning the Subsoil beneath the Sea Bed 357 - 287_d_. The Proposed Channel Tunnel 359 - -CHAPTER III--INDIVIDUALS - - I. _Position of Individuals in International Law_ - - 288. Importance of Individuals to the Law of Nations 362 - 289. Individuals never Subjects of the Law of Nations 362 - 290. Individuals Objects of the Law of Nations 365 - 291. Nationality the Link between Individuals and the Law of - Nations 366 - 292. The Law of Nations and the Rights of Mankind 367 - - II. _Nationality_ - - 293. Conception of Nationality 369 - 294. Function of Nationality 370 - 295. So-called _Protégés_ and _de facto_ Subjects 371 - 296. Nationality and Emigration 373 - - III. _Modes of Acquiring and Losing Nationality_ - - 297. Five Modes of Acquisition of Nationality 374 - 298. Acquisition of Nationality by Birth 375 - 299. Acquisition of Nationality through Naturalisation 375 - 300. Acquisition of Nationality through Redintegration 376 - 301. Acquisition of Nationality through Subjugation and - Cession 377 - 302. Seven Modes of losing Nationality 377 - - IV. _Naturalisation in Especial_ - - 303. Conception and Importance of Naturalisation 379 - 304. Object of Naturalisation 380 - 305. Conditions of Naturalisation 380 - 306. Effect of Naturalisation upon previous Citizenship 381 - 307. Naturalisation in Great Britain 382 - - V. _Double and Absent Nationality_ - - 308. Possibility of Double and Absent Nationality 383 - 309. How Double Nationality occurs 384 - 310. Position of Individuals with Double Nationality 385 - 311. How Absent Nationality occurs 387 - 312. Position of Individuals destitute of Nationality 387 - 313. Redress against Difficulties arising from Double and - Absent Nationality 388 - - VI. _Reception of Aliens and Right of Asylum_ - - 314. No Obligation to admit Aliens 390 - 315. Reception of Aliens under conditions 392 - 316. So-called Right of Asylum 392 - - VII. _Position of Aliens after Reception_ - - 317. Aliens subjected to Territorial Supremacy 393 - 318. Aliens in Eastern Countries 395 - 319. Aliens under the Protection of their Home State 395 - 320. Protection to be afforded to Aliens' Persons and - Property 397 - 321. How far Aliens can be treated according to Discretion 397 - 322. Departure from the Foreign Country 398 - - VIII. _Expulsion of Aliens_ - - 323. Competence to expel Aliens 399 - 324. Just Causes of Expulsion of Aliens 400 - 325. Expulsion how effected 402 - 326. Reconduction in Contradistinction to Expulsion 402 - - IX. _Extradition_ - - 327. Extradition no legal duty 403 - 328. Extradition Treaties how arisen 404 - 329. Municipal Extradition Laws 405 - 330. Object of Extradition 407 - 331. Extraditable Crimes 408 - 332. Effectuation and Condition of Extradition 409 - - X. _Principle of Non-Extradition of Political Criminals_ - - 333. How Non-extradition of Political Criminals became the - Rule 411 - 334. Difficulty concerning the Conception of Political Crime 414 - 335. The so-called Belgian _Attentat_ Clause 416 - 336. The Russian Project of 1881 416 - 337. The Swiss Solution of the Problem in 1892 417 - 338. Rationale for the Principle of Non-extradition of - Political Criminals 418 - 339. How to avoid Misapplication of the Principle of - Non-extradition of Political Criminals 420 - 340. Reactionary Extradition Treaties 422 - - -PART III--_ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS_ - -CHAPTER I--HEADS OF STATES AND FOREIGN OFFICES - - I. _Position of Heads of States according to International Law_ - - 341. Necessity of a Head for every State 425 - 342. Recognition of Heads of States 425 - 343. Competence of Heads of States 426 - 344. Heads of States Objects of the Law of Nations 427 - 345. Honours and Privileges of Heads of States 428 - - II. _Monarchs_ - - 346. Sovereignty of Monarchs 428 - 347. Consideration due to Monarchs at home 429 - 348. Consideration due to Monarchs abroad 429 - 349. The Retinue of Monarchs abroad 431 - 350. Monarchs travelling incognito 431 - 351. Deposed and Abdicated Monarchs 432 - 352. Regents 432 - 353. Monarchs in the service or subjects of Foreign Powers 432 - - III. _Presidents of Republics_ - - 354. Presidents not Sovereigns 433 - 355. Position of Presidents in general 434 - 356. Position of Presidents abroad 434 - - IV. _Foreign Offices_ - - 357. Position of the Secretary for Foreign Affairs 435 - -CHAPTER II--DIPLOMATIC ENVOYS - - I. _The Institution of Legation_ - - 358. Development of Legations 437 - 359. Diplomacy 438 - - II. _Right of Legation_ - - 360. Conception of Right of Legation 440 - 361. What States possess the Right of Legation 441 - 362. Right of Legation by whom exercised 442 - - III. _Kinds and Classes of Diplomatic Envoys_ - - 363. Envoys Ceremonial and Political 443 - 364. Classes of Diplomatic Envoys 443 - 365. Ambassadors 444 - 366. Ministers Plenipotentiary and Envoys Extraordinary 445 - 367. Ministers Resident 445 - 368. Chargés d'Affaires 445 - 369. The Diplomatic Corps 446 - - IV. _Appointment of Diplomatic Envoys_ - - 370. Person and Qualification of the Envoy 446 - 371. Letter of Credence, Full Powers, Passports 447 - 372. Combined Legations 448 - 373. Appointment of several Envoys 448 - - V. _Reception of Diplomatic Envoys_ - - 374. Duty to receive Diplomatic Envoys 449 - 375. Refusal to receive a certain Individual 450 - 376. Mode and Solemnity of Reception 451 - 377. Reception of Envoys to Congresses and Conferences 452 - - VI. _Functions of Diplomatic Envoys_ - - 378. On Diplomatic Functions in general 453 - 379. Negotiation 453 - 380. Observation 454 - 381. Protection 454 - 382. Miscellaneous Functions 454 - 383. Envoys not to interfere in Internal Politics 455 - - VII. _Position of Diplomatic Envoys_ - - 384. Diplomatic Envoys objects of International Law 455 - 385. Privileges due to Diplomatic Envoys 456 - - VIII. _Inviolability of Diplomatic Envoys_ - - 386. Protection due to Diplomatic Envoys 457 - 387. Exemption from Criminal Jurisdiction 458 - 388. Limitation of Inviolability 459 - - IX. _Exterritoriality of Diplomatic Envoys_ - - 389. Reason and Fictional Character of Exterritoriality 460 - 390. Immunity of Domicile 461 - 391. Exemption from Criminal and Civil Jurisdiction 464 - 392. Exemption from Subpoena as witness 465 - 393. Exemption from Police 466 - 394. Exemption from Taxes and the like 467 - 395. Right of Chapel 467 - 396. Self-jurisdiction 468 - - X. _Position of Diplomatic Envoys as regards Third States_ - - 397. Possible Cases 469 - 398. Envoy travelling through Territory of third State 469 - 399. Envoy found by Belligerent on occupied Enemy Territory 471 - 400. Envoy interfering with affairs of a third State 472 - - XI. _The Retinue of Diplomatic Envoys_ - - 401. Different Classes of Members of Retinue 472 - 402. Privileges of Members of Legation 473 - 403. Privileges of Private Servants 474 - 404. Privileges of Family of Envoy 474 - 405. Privileges of Couriers of Envoy 475 - - XII. _Termination of Diplomatic Mission_ - - 406. Termination in contradistinction to Suspension 476 - 407. Accomplishment of Object of Mission 476 - 408. Expiration of Letter of Credence 477 - 409. Recall 477 - 410. Promotion to a higher Class 478 - 411. Delivery of Passports 478 - 412. Request for Passports 478 - 413. Outbreak of War 479 - 414. Constitutional Changes 479 - 415. Revolutionary Changes of Government 479 - 416. Extinction of sending or receiving State 480 - 417. Death of Envoy 480 - -CHAPTER III--CONSULS - - I. _The Institution of Consuls_ - - 418. Development of the Institution of Consuls 482 - 419. General Character of Consuls 484 - - II. _Consular Organisation_ - - 420. Different kinds of Consuls 485 - 421. Consular Districts 485 - 422. Different classes of Consuls 486 - 423. Consuls subordinate to Diplomatic Envoys 487 - - III. _Appointment of Consuls_ - - 424. Qualification of Candidates 487 - 425. No State obliged to admit Consuls 488 - 426. What kind of States can appoint Consuls 488 - 427. Mode of Appointment and of Admittance 489 - 428. Appointment of Consuls includes Recognition 489 - - IV. _Functions of Consuls_ - - 429. On Consular Functions in general 490 - 430. Fosterage of Commerce and Industry 491 - 431. Supervision of Navigation 491 - 432. Protection 492 - 433. Notarial Functions 492 - - V. _Position and Privileges of Consuls_ - - 434. Position 493 - 435. Consular Privileges 494 - - VI. _Termination of Consular Office_ - - 436. Undoubted Causes of Termination 496 - 437. Doubtful Causes of Termination 496 - 438. Change in the Headship of States no cause of Termination 496 - - VII. _Consuls in non-Christian States_ - - 439. Position of Consuls in non-Christian States 497 - 440. Consular Jurisdiction in non-Christian States 498 - 441. International Courts in Egypt 498 - 442. Exceptional Character of Consuls in non-Christian States 499 - -CHAPTER IV--MISCELLANEOUS AGENCIES - - I. _Armed Forces on Foreign Territory_ - - 443. Armed Forces State Organs 500 - 444. Occasions for Armed Forces abroad 500 - 445. Position of Armed Forces abroad 501 - 446. Case of McLeod 501 - 446_a_. The Casa Blanca incident 502 - - II. _Men-of-war in Foreign Waters_ - - 447. Men-of-war State Organs 504 - 448. Proof of Character as Men-of-war 505 - 449. Occasions for Men-of-war abroad 505 - 450. Position of Men-of-war in foreign waters 506 - 451. Position of Crew when on Land abroad 508 - - III. _Agents without Diplomatic or Consular Character_ - - 452. Agents lacking diplomatic or consular character 509 - 453. Public Political Agents 509 - 454. Secret Political Agents 510 - 455. Spies 510 - 456. Commissaries 511 - 457. Bearers of Despatches 511 - - IV. _International Commissions_ - - 458. Permanent in Contradistinction to Temporary - Commissions 512 - 459. Commissions in the interest of Navigation 513 - 460. Commissions in the interest of Sanitation 515 - 461. Commissions in the interest of Foreign Creditors 515 - 462. Permanent Commission concerning Sugar 515 - - V. _International Offices_ - - 463. Character of International Offices 515 - 464. International Telegraph Offices 516 - 465. International Post Office 516 - 466. International Office of Weights and Measures 516 - 467. International Office for the Protection of Works of - Literature and Art and of Industrial Property 516 - 467_a_. The Pan-American Union 517 - 468. Maritime Office at Zanzibar and Bureau Spécial at - Brussels 517 - 469. International Office of Customs Tariffs 517 - 470. Central Office of International Transports 517 - 471. Permanent Office of the Sugar Convention 517 - 471_a_. Agricultural Institute 518 - 471_b_. International Health Office 518 - - VI. _The International Court of Arbitration_ - - 472. Organisation of Court in General 518 - 473. The Permanent Council 518 - 474. The International Bureau 519 - 475. The Court of Arbitration 519 - 476. The Deciding Tribunal 520 - - VII. _The International Prize Court and the proposed International - Court of Justice_ - - 476_a_. The International Prize Court 522 - 476_b_. The proposed International Court of Justice 524 - - -PART IV--_INTERNATIONAL TRANSACTIONS_ - -CHAPTER I--ON INTERNATIONAL TRANSACTIONS IN GENERAL - - I. _Negotiation_ - - 477. Conception of Negotiation 529 - 478. Parties to Negotiation 529 - 479. Purpose of Negotiation 530 - 480. Negotiations by whom conducted 531 - 481. Form of Negotiation 531 - 482. End and Effect of Negotiation 532 - - II. _Congresses and Conferences_ - - 483. Conception of Congresses and Conferences 533 - 484. Parties to Congresses and Conferences 534 - 485. Procedure at Congresses and Conferences 535 - - III. _Transactions besides Negotiation_ - - 486. Different kinds of Transaction 536 - 487. Declaration 536 - 488. Notification 537 - 489. Protest 538 - 490. Renunciation 539 - -CHAPTER II--TREATIES - - I. _Character and Function of Treaties_ - - 491. Conception of Treaties 540 - 492. Different kinds of Treaties 540 - 493. Binding Force of Treaties 541 - - II. _Parties to Treaties_ - - 494. The Treaty-making Power 543 - 495. Treaty-making Power exercised by Heads of States 544 - 496. Minor Functionaries exercising Treaty-making Power 545 - 497. Constitutional Restrictions 545 - 498. Mutual Consent of the Contracting Parties 546 - 499. Freedom of Action of Consenting Representatives 547 - 500. Delusion and Error in Contracting Parties 547 - - III. _Objects of Treaties_ - - 501. Objects in general of Treaties 548 - 502. Obligations of Contracting Parties only can be Object 548 - 503. An Obligation inconsistent with other Obligations cannot - be an Object 549 - 504. Object must be physically possible 549 - 505. Immoral Obligations 549 - 506. Illegal Obligations 550 - - IV. _Form and Parts of Treaties_ - - 507. No necessary Form of Treaties 550 - 508. Acts, Conventions, Declarations 551 - 509. Parts of Treaties 552 - - V. _Ratification of Treaties_ - - 510. Conception and Function of Ratification 553 - 511. Rationale for the Institution of Ratification 554 - 512. Ratification regularly, but not absolutely, necessary 554 - 513. Length of Time for Ratification 555 - 514. Refusal of Ratification 556 - 515. Form of Ratification 557 - 516. Ratification by whom effected 558 - 517. Ratification cannot be partial and conditional 559 - 518. Effect of Ratification 561 - - VI. _Effect of Treaties_ - - 519. Effect of Treaties upon Contracting Parties 561 - 520. Effect of Treaties upon the Subjects of the Parties 562 - 521. Effect of Changes in Government upon Treaties 562 - 522. Effect of Treaties upon Third States 563 - - VII. _Means of Securing Performance of Treaties_ - - 523. What means have been in use 565 - 524. Oaths 565 - 525. Hostages 566 - 526. Pledge 566 - 527. Occupation of Territory 566 - 528. Guarantee 567 - - VIII. _Participation of Third States in Treaties_ - - 529. Interest and Participation to be distinguished 567 - 530. Good Offices and Mediation 568 - 531. Intervention 568 - 532. Accession 568 - 533. Adhesion 569 - - IX. _Expiration and Dissolution of Treaties_ - - 534. Expiration and Dissolution in Contradistinction to - Fulfilment 570 - 535. Expiration through Expiration of Time 570 - 536. Expiration through Resolutive Condition 571 - 537. Mutual Consent 571 - 538. Withdrawal by Notice 571 - 539. Vital Change of Circumstances 572 - - X. _Voidance of Treaties_ - - 540. Grounds of Voidance 576 - 541. Extinction of one of the two Contracting Parties 576 - 542. Impossibility of Execution 577 - 543. Realisation of Purpose of Treaty other than by - Fulfilment 577 - 544. Extinction of such Object as was concerned in a Treaty 577 - - XI. _Cancellation of Treaties_ - - 545. Grounds of Cancellation 578 - 546. Inconsistency with subsequent International Law 578 - 547. Violation by one of the Contracting Parties 579 - 548. Subsequent Change of Status of one of the Contracting - Parties 579 - 549. War 580 - - XII. _Renewal, Reconfirmation, and Redintegration of Treaties_ - - 550. Renewal of Treaties 580 - 551. Reconfirmation 581 - 552. Redintegration 581 - - XIII. _Interpretation of Treaties_ - - 553. Authentic Interpretation, and the Compromise Clause 582 - 554. Rules of Interpretation which recommend themselves 583 - -CHAPTER III--IMPORTANT GROUPS OF TREATIES - - I. _Important Law-making Treaties_ - - 555. Important Law-making Treaties a product of the - Nineteenth Century 587 - 556. Final Act of the Vienna Congress 588 - 557. Protocol of the Congress of Aix-la-Chapelle 588 - 558. Treaty of London of 1831 588 - 559. Declaration of Paris 588 - 560. Geneva Convention 589 - 561. Treaty of London of 1867 589 - 562. Declaration of St. Petersburg 590 - 563. Treaty of Berlin of 1878 590 - 564. General Act of the Congo Conference 590 - 565. Treaty of Constantinople of 1888 591 - 566. General Act of the Brussels Anti-Slavery Conference 591 - 567. Two Declarations of the First Hague Peace Conference 591 - 568. Treaty of Washington of 1901 592 - 568_a_. Conventions and Declaration of the Second Hague Peace - Conference 592 - 568_b_. The Declaration of London 595 - - II. _Alliances_ - - 569. Conception of Alliances 595 - 570. Parties to Alliances 597 - 571. Different kinds of Alliances 597 - 572. Conditions of Alliances 598 - 573. _Casus Foederis_ 599 - - III. _Treaties of Guarantee and of Protection_ - - 574. Conception and Objects of Guarantee Treaties 599 - 575. Effect of Treaties of Guarantee 600 - 576. Effect of Collective Guarantee 601 - 576_a_. Pseudo-Guarantees 602 - 577. Treaties of Protection 604 - - IV. _Commercial Treaties_ - - 578. Commercial Treaties in General 605 - 579. Meaning of Coasting-trade in Commercial Treaties 606 - 580. Meaning of Most-favoured-nation Clause 610 - - V. _Unions Concerning Common Non-Political Interests_ - - 581. Object of the Unions 612 - 582. Post and Telegraphs 613 - 583. Transport and Communication 614 - 584. Copyright 615 - 585. Commerce and Industry 616 - 586. Agriculture 617 - 587. Welfare of Working Classes 618 - 588. Weights, Measures, Coinage 619 - 589. Official Publications 620 - 590. Sanitation 620 - 591. Pharmacopoeia 622 - 592. Humanity 622 - 593. Preservation of Animal World 623 - 594. Private International Law 623 - 595. American Republics 624 - 596. Science 625 - - -INDEX 627 - - - - -INTRODUCTION - -FOUNDATION AND DEVELOPMENT OF THE LAW OF NATIONS - - - - -CHAPTER I - -FOUNDATION OF THE LAW OF NATIONS - - -I - -THE LAW OF NATIONS AS LAW - - Hall, pp. 14-16--Maine, pp. 50-53--Lawrence, §§ 1-3, and Essays, - pp. 1-36--Phillimore, I. §§ 1-12--Twiss, I. §§ 104-5--Taylor, § - 2--Moore, I. §§ 1-2--Westlake, I. pp. 1-13--Walker, History, I. §§ - 1-8--Halleck, I. pp. 46-55--Ullmann, §§ 2-4--Heffter, §§ - 1-5--Holtzendorff in Holtzendorff, I. pp. 19-26--Nys, I. pp. - 133-43--Rivier, I. § 1--Bonfils, Nos. 26-31--Pradier-Fodéré, I. - Nos. 1-24--Mérignhac, I. pp. 5-28--Martens, I. §§ 1-5--Fiore, I. - Nos. 186-208, and Code, Nos. 1-26--Higgins, "The Binding Force of - International Law" (1910)--Pollock in _The Law Quarterly Review_, - XVIII. (1902), pp. 418-428--Scott in A.J. I. (1907), pp. - 831-865--Willoughby and Root in A.J. II. (1908), pp. 357-365 and - 451-457. - -[Sidenote: Conception of the Law of Nations.] - -§ 1. Law of Nations or International Law (_Droit des gens_, -_Völkerrecht_) is the name for the body of customary and conventional -rules which are considered legally[1] binding by civilised States in -their intercourse with each other. Such part of these rules as is -binding upon all the civilised States without exception is called -_universal_ International Law,[2] in contradistinction to _particular_ -International Law, which is binding on two or a few States only. But it -is also necessary to distinguish _general_ International Law. This name -must be given to the body of such rules as are binding upon a great many -States, including leading Powers. General International Law, as, for -instance, the Declaration of Paris of 1856, has a tendency to become -universal International Law. - -[Footnote 1: In contradistinction to mere usages and to rules of -so-called International Comity, see below §§ 9 and 19.] - -[Footnote 2: The best example of universal International Law is the law -connected with legation.] - -International Law in the meaning of the term as used in modern times did -not exist during antiquity and the first part of the Middle Ages. It is -in its origin essentially a product of Christian civilisation, and began -gradually to grow from the second half of the Middle Ages. But it owes -its existence as a systematised body of rules to the Dutch jurist and -statesman Hugo Grotius, whose work, "De Jure Belli ac Pacis libri III.," -appeared in 1625 and became the foundation of all later development. - -The Law of Nations is a law for the intercourse of States with one -another, not a law for individuals. As, however, there cannot be a -sovereign authority above the several sovereign States, the Law of -Nations is a law _between_, not above, the several States, and is, -therefore, since Bentham, also called "International Law." - -Since the distinction of Bentham between International Law public and -private has been generally accepted, it is necessary to emphasise that -only the so-called public International Law, which is identical with the -Law of Nations, is International Law, whereas the so-called private -International Law is not. The latter concerns such matters as fall at -the same time under the jurisdiction of two or more different States. -And as the Municipal Laws of different States are frequently in conflict -with each other respecting such matters, jurists belonging to different -countries endeavour to find a body of principles according to which such -conflicts can be avoided. - -[Sidenote: Legal Force of the Law of Nations contested.] - -§ 2. Almost from the beginning of the science of the Law of Nations the -question has been discussed whether the rules of International Law are -_legally_ binding. Hobbes[3] already and Pufendorf[4] had answered the -question in the negative. And during the nineteenth century Austin[5] -and his followers take up the same attitude. They define law as a body -of rules for human conduct set and enforced by a sovereign political -authority. If indeed this definition of law be correct, the Law of -Nations cannot be called law. For International Law is a body of rules -governing the relations of Sovereign States between one another. And -there is not and cannot be a sovereign political authority above the -Sovereign States which could enforce such rules. However, this -definition of law is not correct. It covers only the written or statute -law within a State, that part of the Municipal Law which is expressly -made by statutes of Parliament in a constitutional State or by some -other sovereign authority in a non-constitutional State. It does not -cover that part of Municipal Law which is termed unwritten or customary -law. There is, in fact, no community and no State in the world which -could exist with written law only. Everywhere there is customary law in -existence besides the written law. This customary law was never -expressly enacted by any law-giving body, or it would not be merely -customary law. Those who define law as rules set and enforced by a -sovereign political authority do not deny the existence of customary -law. But they maintain that the customary law has the character of law -only through the indirect recognition on the part of the State which is -to be found in the fact that courts of justice apply the customary in -the same way as the written law, and that the State does not prevent -them from doing so. This is, however, nothing else than a fiction. -Courts of justice having no law-giving power could not recognise -unwritten rules as law if these rules were not law before that -recognition, and States recognise unwritten rules as law only because -courts of justice do so. - -[Footnote 3: De Cive, XIV. 4.] - -[Footnote 4: De Jure Naturæ et Gentium, II. c. iii. § 22.] - -[Footnote 5: Lectures on Jurisprudence, VI.] - -[Sidenote: Characteristics of Rules of Law.] - -§ 3. For the purpose of finding a correct definition of law it is -indispensable to compare morality and law with each other, for both lay -down rules, and to a great extent the same rules, for human conduct. Now -the characteristic of rules of morality is that they apply to -conscience, and to conscience only. An act loses all value before the -tribunal of morality, if it was not done out of free will and -conscientiousness, but was enforced by some external power or was done -out of some consideration which lies without the boundaries of -conscience. Thus, a man who gives money to the hospitals in order that -his name shall come before the public does not act morally, and his deed -is not a moral one, though it appears to be one outwardly. On the other -hand, the characteristic of rules of law is that they shall eventually -be enforced by external power.[6] Rules of law apply, of course, to -conscience quite as much as rules of morality. But the latter require to -be enforced by the internal power of conscience only, whereas the former -require to be enforced by some external power. When, to give an -illustrative example, morality commands you to pay your debts, it hopes -that your conscience will make you pay them. On the other hand, if the -law gives the same command, it hopes that, if the conscience has not -sufficient power to make you pay your debts, the fact that, if you will -not pay, the bailiff will come into your house, will do so. - -[Footnote 6: Westlake, Chapters, p. 12, seems to make the same -distinction between rules of law and of morality, and Twiss, I. § 105, -adopts it _expressis verbis_.] - -[Sidenote: Law-giving Authority not essential for the Existence of Law.] - -§ 4. If these are the characteristic signs of morality and of law, we -are justified in stating the principle: A rule is a rule of morality, if -by common consent of the community it applies to conscience and to -conscience only; whereas, on the other hand, a rule is a rule of law, if -by common consent of the community it shall eventually be enforced by -external power. Without some kind both of morality and law, no -community has ever existed or could possibly exist. But there need not -be, at least not among primitive communities, a law-giving authority -within a community. Just as the rules of morality are growing through -the influence of many different factors, so the law can grow without -being expressly laid down and set by a law-giving authority. Wherever we -have an opportunity of observing a primitive community, we find that -some of its rules for human conduct apply to conscience only, whereas -others shall by common consent of the community be enforced; the former -are rules of morality only, whereas the latter are rules of law. For the -existence of law neither a law-giving authority nor courts of justice -are essential. Whenever a question of law arises in a primitive -community, it is the community itself and not a court which decides it. -Of course, when a community is growing out of the primitive condition of -its existence and becomes gradually so enlarged that it turns into a -State in the sense proper of the term, the necessities of life and -altered circumstances of existence do not allow the community itself any -longer to do anything and everything. And the law can now no longer be -left entirely in the hands of the different factors which make it grow -gradually from case to case. A law-giving authority is now just as much -wanted as a governing authority. It is for this reason that we find in -every State a Legislature, which makes laws, and courts of justice, -which administer them. - -However, if we ask whence does the power of the legislature to make laws -come, there is no other answer than this: From the common consent of the -community. Thus, in Great Britain, Parliament is the law-making body by -common consent. An Act of Parliament is law, because the common consent -of Great Britain is behind it. That Parliament has law-making authority -is law itself, but unwritten and customary law. _Thus the very important -fact comes to light that all statute or written law is based on -unwritten law in so far as the power of Parliament to make Statute Law -is given to Parliament by unwritten law._ It is the common consent of -the British people that Parliament shall have the power of making rules -which shall be enforced by external power. But besides the statute laws -made by Parliament there exist and are constantly growing other laws, -unwritten or customary, which are day by day recognised through courts -of justice. - -[Sidenote: Definition and three Essential Conditions of Law.] - -§ 5. On the basis of the results of these previous investigations we are -now able to give a definition of law. We may say that _law is a body of -rules for human conduct within a community which by common consent of -this community shall be enforced by external power_. - -The essential conditions of the existence of law are, therefore, -threefold. There must, first, be a community. There must, secondly, be a -body of rules for human conduct within that community. And there must, -thirdly, be a common consent of that community that these rules shall be -enforced by external power. It is not an essential condition either that -such rules of conduct must be written rules, or that there should be a -law-making authority or a law-administering court within the community -concerned. And it is evident that, if we find this definition of law -correct, and accept these three essential conditions of law, the -existence of law is not limited to the State community only, but is to -be found everywhere where there is a community. The best example of the -existence of law outside the State is the law of the Roman Catholic -Church, the so-called Canon Law. This Church is an organised community -whose members are dispersed over the whole surface of the earth. They -consider themselves bound by the rules of the Canon Law, although there -is no sovereign political authority that sets and enforces those rules, -the Pope and the bishops and priests being a religious authority only. -But there is an external power through which the rules of the Canon Law -are enforced--namely, the punishments of the Canon Law, such as -excommunication, refusal of sacraments, and the like. And the rules of -the Canon Law are in this way enforced by common consent of the whole -Roman Catholic community. - -[Sidenote: Law not to be identified with Municipal Law.] - -§ 6. But it must be emphasised that, if there is law to be found in -every community, law in this meaning must not be identified with the law -of States, the so-called Municipal Law,[7] just as the conception of -State must not be identified with the conception of community. The -conception of community is a wider one than the conception of State. A -State is a community, but not every community is a State. Likewise the -conception of law pure and simple is a wider one than that of Municipal -Law. Municipal Law is law, but not every law is Municipal Law, as, for -instance, the Canon Law is not. Municipal Law is a narrower conception -than law pure and simple. The body of rules which is called the Law of -Nations might, therefore, be law in the strict sense of the term, -although it might not possess the characteristics of Municipal Law. To -make sure whether the Law of Nations is or is not law, we have to -inquire whether the three essential conditions of the existence of law -are to be found in the Law of Nations. - -[Footnote 7: Throughout this work the term "Municipal Law" is made use -of in the sense of national or State law in contradistinction to -International Law.] - -[Sidenote: The "Family of Nations" a Community.] - -§ 7. As the first condition is the existence of a community, the -question arises, whether an international community exists whose law -could be the Law of Nations. Before this question can be answered, the -conception of community must be defined. A community may be said to be -the body of a number of individuals more or less bound together through -such common interests as create a constant and manifold intercourse -between the single individuals. This definition of community covers not -only a community of individual men, but also a community of individual -communities such as individual States. A Confederation of States is a -community of States. But is there a universal international community of -all individual States in existence? This question is decidedly to be -answered in the affirmative as far as the States of the civilised world -are concerned. Innumerable are the interests which knit all the -individual civilised States together and which create constant -intercourse between these States as well as between their subjects. As -the civilised States are, with only a few exceptions, Christian States, -there are already religious ideas which wind a band around them. There -are, further, science and art, which are by their nature to a great -extent international, and which create a constant exchange of ideas and -opinions between the subjects of the several States. Of the greatest -importance are, however, agriculture, industry, and trade. It is totally -impossible even for the largest empire to produce everything its -subjects want. Therefore, the productions of agriculture and industry -must be exchanged by the several States, and it is for this reason that -international trade is an unequalled factor for the welfare of every -civilised State. Even in antiquity, when every State tried to be a world -in itself, States did not and could not exist without some sort of -international trade. It is international trade which has created -navigation on the high seas and on the rivers flowing through different -States. It is, again, international trade which has called into -existence the nets of railways which cover the continents, the -international postal and telegraphic arrangements, and the Transatlantic -telegraphic cables.[8] - -[Footnote 8: See Fried, "Das internationale Leben der Gegenwart" (1908), -where the innumerable interests are grouped and discussed which knit the -civilised world together.] - -The manifold interests which knit all the civilised States together and -create a constant intercourse between one another, have long since -brought about the necessity that these States should have one or more -official representatives living abroad. Thus we find everywhere foreign -envoys and consuls. They are the agents who make possible the current -stream of transactions between the Governments of the different States. -A number of International Offices, International Bureaux, International -Commissions have been permanently appointed for the administration of -international business, a permanent Court of Arbitration has been, and -an International Prize Court will soon be, established at the Hague. And -from time to time special international conferences and congresses of -delegates of the different States are convoked for discussing and -settling matters international. Though the individual States are -sovereign and independent of each other, though there is no -international Government above the national ones, though there is no -central political authority to which the different States are subjected, -yet there is something mightier than all the powerful separating -factors: namely, the common interests. And these common interests and -the necessary intercourse which serves these interests, unite the -separate States into an indivisible community. For many hundreds of -years this community has been called "Family of Nations" or "Society of -Nations." - -[Sidenote: The "Family of Nations" a Community with Rules of Conduct.] - -§ 8. Thus the first essential condition for the existence of law is a -reality. The single States make altogether a body of States, a community -of individual States. But the second condition cannot be denied either. -For hundreds of years more and more rules have grown up for the conduct -of the States between each other. These rules are to a great extent -customary rules. But side by side with these customary and unwritten -rules more and more written rules are daily created by international -agreements, such as the Declaration of Paris of 1856, the Hague Rules -concerning land warfare of 1899 and 1907, and the like. The so-called -Law of Nations is nothing else than a body of customary and conventional -rules regulating the conduct of the individual States with each other. -Just as out of tribal communities which were in no way connected with -each other arose the State, so the Family of Nations arose out of the -different States which were in no way connected with each other. But -whereas the State is a settled institution, firmly established and -completely organised, the Family of Nations is still in the beginning of -its development. A settled institution and firmly established it -certainly is, but it entirely lacks at present any organisation -whatever. Such an organisation is, however, gradually growing into -existence before our eyes. The permanent Court of Arbitration created by -the First Hague Peace Conference, and the International Prize Court -proposed by the Second Hague Peace Conference, are the first small -traces of a future organisation. The next step forward will be that the -Hague Peace Conferences will meet automatically within certain periods -of time, without being summoned by one of the Powers. A second step -forward will be the agreement on the part of the Powers upon fixed rules -of procedure for the future Hague Peace Conferences. As soon as these -two steps forward are really made, the nucleus of an organisation of the -Family of Nations will be in existence, and out of this nucleus will -grow in time a more powerful organisation, the ultimate characteristic -features of which cannot at present be foreseen.[9] - -[Footnote 9: See Oppenheim, "Die Zukunft des Völkerrechts" (1911), -_passim_.] - -[Sidenote: External Power for the Enforcement of Rules of International -Conduct.] - -§ 9. But how do matters stand concerning the third essential condition -for the existence of law? Is there a common consent of the community of -States that the rules of international conduct shall be enforced by -external power? There cannot be the slightest doubt that this question -must be affirmatively answered, although there is no central authority -to enforce those rules. The heads of the civilised States, their -Governments, their Parliaments, and public opinion of the whole of -civilised humanity, agree and consent that the body of rules of -international conduct which is called the Law of Nations shall be -enforced by external power, in contradistinction to rules of -international morality and courtesy, which are left to the consideration -of the conscience of nations. And in the necessary absence of a central -authority for the enforcement of the rules of the Law of Nations, the -States have to take the law into their own hands. Self-help and -intervention on the part of other States which sympathise with the -wronged one are the means by which the rules of the Law of Nations can -be[10] and actually are enforced. It is true that these means have many -disadvantages, but they are means which have the character of external -power. Compared with Municipal Law and the means at disposal for its -enforcement, the Law of Nations is certainly the weaker of the two. A -law is the stronger, the more guarantees are given that it can and will -be enforced. Thus, the law of a State which is governed by an uncorrupt -Government and the courts of which are not venal is stronger than the -law of a State which has a corrupt Government and venal judges. It is -inevitable that the Law of Nations must be a weaker law than Municipal -Law, as there is not and cannot be an international Government above the -national ones which could enforce the rules of International Law in the -same way as a national Government enforces the rules of its Municipal -Law. But a weak law is nevertheless still law, and the Law of Nations is -by no means so weak a law as it sometimes seems to be.[11] - -[Footnote 10: See below, § 135, concerning intervention by right.] - -[Footnote 11: Those who deny to International Law the character of law -because they identify the conception of law in general with that of -Municipal Law and because they cannot see any law outside the State, -confound cause and effect. Originally law was not a product of the -State, but the State was a product of law. The right of the State to -make law is based upon the rule of law that the State is competent to -make law.] - -[Sidenote: Practice recognises Law of Nations as Law.] - -§ 10. The fact is that theorists only are divided concerning the -character of the Law of Nations as real law. In practice International -Law is constantly recognised as law. The Governments and Parliaments of -the different States are of opinion that they are legally, not morally -only, bound by the Law of Nations, although they cannot be forced to go -before a court in case they are accused of having violated it. Likewise, -public opinion of all civilised States considers every State legally -bound to comply with the rules of the Law of Nations, not taking notice -of the opinion of those theorists who maintain that the Law of Nations -does not bear the character of real law. And the several States not only -recognise the rules of International Law as legally binding in -innumerable treaties, but emphasise every day the fact that there is a -law between themselves. They moreover recognise this law by their -Municipal Laws ordering their officials, their civil and criminal -courts, and their subjects to take up such an attitude as is in -conformity with the duties imposed upon their Sovereign by the Law of -Nations. If a violation of the Law of Nations occurs on the part of an -individual State, public opinion of the civilised world, as well as the -Governments of other States, stigmatise such violation as a violation of -law pure and simple. And countless treaties concerning trade, -navigation, post, telegraph, copyright, extradition, and many other -objects exist between civilised States, which treaties, resting entirely -on the existence of a law between the States, presuppose such a law, and -contribute by their very existence to its development and growth. - -Violations of this law are certainly frequent. But the offenders always -try to prove that their acts do not contain a violation, and that they -have a right to act as they do according to the Law of Nations, or at -least that no rule of the Law of Nations is against their acts. Has a -State ever confessed that it was going to break the Law of Nations or -that it ever did so? The fact is that States, in breaking the Law of -Nations, never deny its existence, but recognise its existence through -the endeavour to interpret the Law of Nations in a way favourable to -their act. And there is an ever-growing tendency to bring disputed -questions of International Law as well as international differences in -general before international courts. The permanent Court of Arbitration -at the Hague established in 1899, and the International Prize Court -proposed at the Hague according to a convention of 1907, are the first -promising fruits of this tendency. - - -II - -BASIS OF THE LAW OF NATIONS - -[Sidenote: Common Consent the Basis of Law.] - -§ 11. If law is, as defined above (§ 5), a body of rules for human -conduct within a community which by common consent of this community -shall be enforced through external power, common consent is the basis of -all law. What, now, does the term "common consent" mean? If it meant -that all the individuals who are members of a community must at every -moment of their existence expressly consent to every point of law, such -common consent would never be a fact. The individuals, who are the -members of a community, are successively born into it, grow into it -together with the growth of their intellect during adolescence, and die -away successively to make room for others. The community remains -unaltered, although a constant change takes place in its members. -"Common consent" can therefore only mean the express or tacit consent of -such an overwhelming majority of the members that those who dissent are -of no importance whatever, and disappear totally from the view of one -who looks for the will of the community as an entity in -contradistinction to the wills of its single members. The question as to -whether there be such a common consent in a special case, is not a -question of theory, but of fact only. It is a matter of observation and -appreciation, and not of logical and mathematical decision, just as is -the well-known question, how many grains make a heap? Those legal rules -which come down from ancestors to their descendants remain law so long -only as they are supported by common consent of these descendants. New -rules can only become law if they find common consent on the part of -those who constitute the community at the time. It is for that reason -that custom is at the background of all law, whether written or -unwritten. - -[Sidenote: Common Consent of the Family of Nations the Basis of -International Law.] - -§ 12. What has been stated with regard to law pure and simple applies -also to the Law of Nations. However, the community for which this Law of -Nations is authoritative consists not of individual human beings, but of -individual States. And whereas in communities consisting of individual -human beings there is a constant and gradual change of the members -through birth, death, emigration, and immigration, the Family of -Nations is a community within which no such constant change takes place, -although now and then a member disappears and a new member steps in. The -members of the Family of Nations are therefore not born into that -community and they do not grow into it. New members are simply received -into it through express or tacit recognition. It is therefore necessary -to scrutinise more closely the common consent of the States which is the -basis of the Law of Nations. - -The customary rules of this law have grown up by common consent of the -States--that is, the different States have acted in such a manner as -includes their tacit consent to these rules. As far as the process of -the growth of a usage and its turning into a custom can be traced back, -customary rules of the Law of Nations came into existence in the -following way. The intercourse of States with each other necessitated -some rules of international conduct. Single usages, therefore, gradually -grew up, the different States acting in the same or in a similar way -when an occasion arose. As some rules of international conduct were from -the end of the Middle Ages urgently wanted, the theory of the Law of -Nations prepared the ground for their growth by constructing certain -rules on the basis of religious, moral, rational, and historical -reflections. Hugo Grotius's work, "De Jure Belli ac Pacis libri III." -(1625), offered a systematised body of rules, which recommended -themselves so much to the needs and wants of the time that they became -the basis of the development following. Without the conviction of the -Governments and of public opinion of the civilised States that there -ought to be legally binding rules for international conduct, on the one -hand, and, on the other hand, without the pressure exercised upon the -States by their interests and the necessity for the growth of such -rules, the latter would never have grown up. When afterwards, -especially in the nineteenth century, it became apparent that customs -and usages alone were not sufficient or not sufficiently clear, new -rules were created through law-making treaties being concluded which -laid down rules for future international conduct. Thus conventional -rules gradually grew up side by side with customary rules. - -New States which came into existence and were through express or tacit -recognition admitted into the Family of Nations thereby consented to the -body of rules for international conduct in force at the time of their -admittance. It is therefore not necessary to prove for every single rule -of International Law that every single member of the Family of Nations -consented to it. No single State can say on its admittance into the -Family of Nations that it desires to be subjected to such and such a -rule of International Law, and not to others. The admittance includes -the duty to submit to all the rules in force, with the sole exception of -those which, such as the rules of the Geneva Convention for instance, -are specially stipulated for such States only as have concluded, or -later on acceded to, a certain international treaty creating the rules -concerned. - -On the other hand, no State which is a member of the Family of Nations -can at some time or another declare that it will in future no longer -submit to a certain recognised rule of the Law of Nations. The body of -the rules of this law can be altered by common consent only, not by a -unilateral declaration on the part of one State. This applies not only -to customary rules, but also to such conventional rules as have been -called into existence through a law-making treaty for the purpose of -creating a permanent mode of future international conduct without a -right of the signatory powers to give notice of withdrawal. It would, -for instance, be a violation of International Law on the part of a -signatory Power of the Declaration of Paris of 1856 to declare that it -would cease to be a party. But it must be emphasised that this does not -apply to such conventional rules as are stipulated by a law-making -treaty which expressly reserves the right to the signatory Powers to -give notice. - -[Sidenote: States the Subjects of the Law of Nations.] - -§ 13. Since the Law of Nations is based on the common consent of -individual States, and not of individual human beings, States solely and -exclusively are the subjects of International Law. This means that the -Law of Nations is a law for the international conduct of States, and not -of their citizens. Subjects of the rights and duties arising from the -Law of Nations are States solely and exclusively. An individual human -being, such as a king or an ambassador for example, is never directly a -subject of International Law. Therefore, all rights which might -necessarily have to be granted to an individual human being according to -the Law of Nations are not international rights, but rights granted by -Municipal Law in accordance with a duty imposed upon the respective -State by International Law. Likewise, all duties which might necessarily -have to be imposed upon individual human beings according to the Law of -Nations are not international duties, but duties imposed by Municipal -Law in accordance with a right granted to or a duty imposed upon the -respective State by International Law. Thus the privileges of an -ambassador are granted to him by the Municipal Law of the State to which -he is accredited, but such State has the duty to grant these privileges -according to International Law. Thus, further, the duties incumbent upon -officials and subjects of neutral States in time of war are imposed upon -them by the Municipal Law of their home States, but these States have, -according to International Law, the duty of imposing the respective -duties upon their officials and citizens.[12] - -[Footnote 12: The importance of the fact that subjects of the Law of -Nations are States exclusively is so great that I consider it necessary -to emphasise it again and again throughout this work. See, for instance, -below, §§ 289, 344, 384. It should, however, already be mentioned here -that this assertion is even nowadays still sometimes contradicted; see, -for instance, Kaufmann, "Die Rechtskraft des Internationalen Rechts" -(1899), _passim_; Rehm in Z.V. I. (1907), p. 53; and Diena in R.G. XVI. -pp. 57-76.] - -[Sidenote: Equality an Inference from the Basis of International Law.] - -§ 14. Since the Law of Nations is based on the common consent of States -as sovereign communities, the member States of the Family of Nations are -equal to each other as subjects of International Law. States are by -their nature certainly not equal as regards power, extent, constitution, -and the like. But as members of the community of nations they are -equals, whatever differences between them may otherwise exist. This is a -consequence of their sovereignty and of the fact that the Law of Nations -is a law between, not above, the States.[13] - -[Footnote 13: See below, §§ 115-116, where the legal equality of States -in contradistinction to their political inequality is discussed, and -where it will also be shown that not-full Sovereign States are not -equals of full-Sovereign States.] - - -III - -SOURCES OF THE LAW OF NATIONS - - Hall, pp. 5-14--Maine, pp. 1-25--Lawrence, §§ 61-66--Phillimore, - I. §§ 17-33--Twiss, I. §§ 82-103--Taylor, §§ 30-36--Westlake, I. - pp. 14-19--Wheaton, § 15--Halleck, I. pp. 55-64--Ullmann, §§ - 8-9--Heffter, § 3--Holtzendorff in Holtzendorff, I. pp. - 79-158--Rivier, I. § 2--Nys, I. pp. 144-165--Bonfils, Nos. - 45-63--Despagnet, Nos. 58-63--Pradier-Fodéré, I. Nos. - 24-35--Mérignhac, I. pp. 79-113--Martens, I. § 43--Fiore, I. Nos. - 224-238--Calvo, I. §§ 27-38--Bergbohm, "Staatsverträge und Gesetze - als Quellen des Völkerrechts" (1877)--Jellinek, "Die rechtliche - Natur der Staatsverträge" (1880)--Cavaglieri, "La consuetudine - giuridica internazionale" (1907). - -[Sidenote: Source in Contradistinction to Cause.] - -§ 15. The different writers on the Law of Nations disagree widely with -regard to kinds and numbers of sources of this law. The fact is that the -term "source of law" is made use of in different meanings by the -different writers on International Law, as on law in general. It seems -to me that most writers confound the conception of "source" with that of -"cause," and through this mistake come to a standpoint from which -certain factors which influence the growth of International Law appear -as sources of rules of the Law of Nations. This mistake can be avoided -by going back to the meaning of the term "source" in general. Source -means a spring or well, and has to be defined as the rising from the -ground of a stream of water. When we see a stream of water and want to -know whence it comes, we follow the stream upwards until we come to the -spot where it rises naturally from the ground. On that spot, we say, is -the source of the stream of water. We know very well that this source is -not the cause of the existence of the stream of water. Source signifies -only the natural rising of water from a certain spot of the ground, -whatever natural causes there may be for that rising. If we apply the -conception of source in this meaning to the term "source of law," the -confusion of source with cause cannot arise. Just as we see streams of -water running over the surface of the earth, so we see, as it were, -streams of rules running over the area of law. And if we want to know -whence these rules come, we have to follow these streams upwards until -we come to their beginning. Where we find that such rules rise into -existence, there is the source of them. Of course, rules of law do not -rise from a spot on the ground as water does; they rise from facts in -the historical development of a community. Thus in Great Britain a good -many rules of law rise every year from Acts of Parliament. "Source of -Law" is therefore the name for an historical fact out of which rules of -conduct rise into existence and legal force. - -[Sidenote: The two Sources of International Law.] - -§ 16. As the basis of the Law of Nations is the common consent of the -member States of the Family of Nations, it is evident that there must -exist, and can only exist, as many sources of International Law as there -are facts through which such common consent can possibly come into -existence. Of such facts there are only two. A State, just as an -individual, may give its consent either directly by an express -declaration or tacitly by conduct which it would not follow in case it -did not consent. The sources of International Law are therefore -twofold--namely: (1) _express_ consent, which is given when States -conclude a treaty stipulating certain rules for the future international -conduct of the parties; (2) _tacit_ consent, which is given through -States having adopted the custom of submitting to certain rules of -international conduct. Treaties and custom are, therefore, exclusively -the sources of the Law of Nations. - -[Sidenote: Custom in Contradistinction to Usage.] - -§ 17. Custom is the older and the original source of International Law -in particular as well as of law in general. Custom must not be -confounded with usage. In everyday life and language both terms are used -synonymously, but in the language of the jurist they have two distinctly -different meanings. Jurists speak of a custom, when a clear and -continuous habit of doing certain actions has grown up under the ægis of -the conviction that these actions are legally necessary or legally -right. On the other hand, jurists speak of a usage, when a habit of -doing certain actions has grown up without there being the conviction of -their legal character. Thus the term "custom" is in juristic language a -narrower conception than the term "usage," as a given course of conduct -may be usual without being customary. Certain conduct of States -concerning their international relations may therefore be usual without -being the outcome of customary International Law. - -As usages have a tendency to become custom, the question presents -itself, at what time a usage turns into a custom. This question is one -of fact, not of theory. All that theory can point out is this: Wherever -and as soon as a frequently adopted international conduct of States is -considered legally necessary or legally right, the rule which may be -abstracted from such conduct, is a rule of customary International Law. - -[Sidenote: Treaties as Source of International Law.] - -§ 18. Treaties are the second source of International Law, and a source -which has of late become of the greatest importance. As treaties may be -concluded for innumerable purposes,[14] it is necessary to emphasise -that such treaties only are a source of International Law as either -stipulate new rules for future international conduct or confirm, define, -or abolish existing customary or conventional rules. Such treaties must -be called _law-making treaties_. Since the Family of Nations is not a -State-like community, there is no central authority which could make law -for it in a similar way as Parliaments make law by statutes within the -States. The only way in which International Law can be made by a -deliberate act, in contradistinction to custom, is that the members of -the Family of Nations conclude treaties in which certain rules for their -future conduct are stipulated. Of course, such law-making treaties -create law for the contracting parties solely. Their law is _universal_ -International Law then only, when all the members of the Family of -Nations are parties to them. Many law-making treaties are concluded by a -few States only, so that the law which they create is _particular_ -International Law. On the other hand, there have been many law-making -treaties concluded which contain _general_ International Law, because -the majority of States, including leading Powers, are parties to them. -General International Law has a tendency to become universal because -such States as hitherto did not consent to it will in future either -expressly give their consent or recognise the respective rules tacitly -through custom.[15] But it must be emphasised that, whereas custom is -the original source of International Law, treaties are a source the -power of which derives from custom. For the fact that treaties can -stipulate rules of international conduct at all is based on the -customary rule of the Law of Nations, that treaties are binding upon the -contracting parties.[16] - -[Footnote 14: See below, § 492.] - -[Footnote 15: Law-making treaties of world-wide importance are -enumerated below, §§ 556-568b.] - -[Footnote 16: See below, § 493.] - -[Sidenote: Factors influencing the Growth of International Law.] - -§ 19. Thus custom and treaties are the two exclusive sources of the Law -of Nations. When writers on International Law frequently enumerate other -sources besides custom and treaties, they confound the term "source" -with that of "cause" by calling sources of International Law such -factors as influence the gradual growth of new rules of International -Law without, however, being the historical facts from which these rules -receive their legal force. Important factors of this kind are: Opinions -of famous writers[17] on International Law, decisions of prize courts, -arbitral awards,[18] instructions issued by the different States for the -guidance of their diplomatic and other organs, State Papers concerning -foreign politics, certain Municipal Laws, decisions of Municipal -Courts.[19] All these and other factors may influence the growth of -International Law either by creating usages which gradually turn into -custom, or by inducing the members of the Family of Nations to conclude -such treaties as stipulate legal rules for future international conduct. - -[Footnote 17: See Oppenheim in A.J. II. (1908), pp. 344-348.] - -[Footnote 18: See Oppenheim in A.J. II. (1908), pp. 341-344.] - -[Footnote 19: See Oppenheim in A.J. II. (1908), pp. 336-341.] - -A factor of a special kind which also influences the growth of -International Law is the so-called _Comity_ (_Comitas Gentium_, -_Convenance et Courtoisie Internationale_, _Staatengunst_). In their -intercourse with one another, States do observe not only legally binding -rules and such rules as have the character of usages, but also rules of -politeness, convenience, and goodwill. Such rules of international -conduct are not rules of law, but of comity. The Comity of Nations is -certainly not a source of International Law, as it is distinctly the -contrast to the Law of Nations. But there can be no doubt that many a -rule which formerly was a rule of International Comity only is nowadays -a rule of International Law. And it is certainly to be expected that -this development will go on in future also, and that thereby many a rule -of present International Comity will in future become one of -International Law.[20] - -[Footnote 20: The matter is ably discussed in Stoerk, "Völkerrecht und -Völkercourtoisie" (1908).] - -Not to be confounded with the rules of Comity are the rules of morality -which ought to apply to the intercourse of States as much as to the -intercourse of individuals. - - -IV - -RELATIONS BETWEEN INTERNATIONAL AND MUNICIPAL LAW - - Holtzendorff in Holtzendorff, I. pp. 49-53, 117-120--Nys, I. pp. - 185-189--Taylor, § 103--Holland, Studies, pp. 176-200--Kaufmann, - "Die Rechtskraft des internationalen Rechts" (1899)--Triepel, - "Völkerrecht und Landesrecht" (1899)--Anzilotti, "Il diritto - internazionale nei giudizi interni" (1905)--Kohler in Z.V. II. - (1908), pp. 209-230. - -[Sidenote: Essential Difference between International and Municipal -Law.] - -§ 20. The Law of Nations and the Municipal Law of the single States are -essentially different from each other. They differ, first, as regards -their sources. Sources of Municipal Law are custom grown up within the -boundaries of the respective State and statutes enacted by the -law-giving authority. Sources of International Law are custom grown up -within the Family of Nations and law-making treaties concluded by the -members of that family. - -The Law of Nations and Municipal Law differ, secondly, regarding the -relations they regulate. Municipal Law regulates relations between the -individuals under the sway of the respective State and the relations -between this State and the respective individuals. International Law, on -the other hand, regulates relations between the member States of the -Family of Nations. - -The Law of Nations and Municipal Law differ, thirdly, with regard to the -substance of their law: whereas Municipal Law is a law of a Sovereign -over individuals subjected to his sway, the Law of Nations is a law not -above, but between Sovereign States, and therefore a weaker law.[21] - -[Footnote 21: See above, § 9.] - -[Sidenote: Law of Nations never _per se_ Municipal Law.] - -§ 21. If the Law of Nations and Municipal Law differ as demonstrated, -the Law of Nations can neither as a body nor in parts be _per se_ a part -of Municipal Law. Just as Municipal Law lacks the power of altering or -creating rules of International Law, so the latter lacks absolutely the -power of altering or creating rules of Municipal Law. If, according to -the Municipal Law of an individual State, the Law of Nations as a body -or in parts is considered the law of the land, this can only be so -either by municipal custom or by statute, and then the respective rules -of the Law of Nations have by adoption[22] become at the same time rules -of Municipal Law. Wherever and whenever such total or partial adoption -has not taken place, municipal courts cannot be considered to be bound -by International Law, because it has, _per se_, no power over municipal -courts.[23] And if it happens that a rule of Municipal Law is in -indubitable conflict with a rule of the Law of Nations, municipal courts -must apply the former. If, on the other hand, a rule of the Law of -Nations regulates a fact without conflicting with, but without expressly -or tacitly having been adopted by Municipal Law, municipal courts cannot -apply such rule of the Law of Nations. - -[Footnote 22: This has been done by the United States. See The Nereide, -9 Cranch, 388; United States _v._ Smith, 5 Wheaton, 153; The Scotia, 14 -Wallace, 170; The Paquette Habana, 175 United States, 677. See also -Taylor, § 103, and Scott in A.J. I. (1908), pp. 852-865. As regards Great -Britain, see Blackstone, IV. ch. 5, and Westlake in _The Law Quarterly -Review_, XXII. (1906), pp. 14-26; see also the case of the West Rand -Central Mining Co. _v._ The King (1905), 2 K. B. 391.] - -[Footnote 23: This ought to be generally recognised, but, in fact, is -not; says, for instance, Kohler in Z.V. II.(1908), p. 210:--"_... das -Völkerrecht ist ein überstaatliches Recht, das der Gesetzgebung des -einzelnen Staates nicht unterworfen ist und von den Richtern ohne -weiteres respectirt werden muss: das Völkerrecht steht über dem -staatlichen Recht_."] - -[Sidenote: Certain Rules of Municipal Law necessitated or interdicted.] - -§ 22. If Municipal Courts cannot apply unadopted rules of the Law of -Nations, and must apply even such rules of Municipal Law as conflict -with the Law of Nations, it is evident that the several States, in order -to fulfil their international obligations, are compelled to possess -certain rules, and are prevented from having certain other rules as part -of their Municipal Law. It is not necessary to enumerate all the rules -of Municipal Law which a State must possess, and all those rules it is -prevented from having. It suffices to give some illustrative examples. -Thus, on the one hand, the Municipal Law of every State, for instance, -is compelled to possess rules granting the necessary privileges to -foreign diplomatic envoys, protecting the life and liberty of foreign -citizens residing on its territory, threatening punishment for certain -acts committed on its territory in violation of a foreign State. On the -other hand, the Municipal Law of every State is prevented by the Law of -Nations from having rules, for instance, conflicting with the freedom of -the high seas, or prohibiting the innocent passage of foreign -merchantmen through its maritime belt, or refusing justice to foreign -residents with regard to injuries committed on its territory to their -lives, liberty, and property by its own citizens. If a State does -nevertheless possess such rules of Municipal Law as it is prevented from -having by the Law of Nations, or if it does not possess such Municipal -rules as it is compelled to have by the Law of Nations, it violates an -international legal duty, but its courts[24] cannot by themselves alter -the Municipal Law to meet the requirements of the Law of Nations. - -[Footnote 24: This became quite apparent in the Moray Firth case -(Mortensen _v._ Peters)--see below, § 192--in which the Court had to -apply British Municipal Law.] - -[Sidenote: Presumption against conflicts between International and -Municipal Law.] - -§ 23. However, although Municipal Courts must apply Municipal Law even -if conflicting with the Law of Nations, there is a presumption against -the existence of such a conflict. As the Law of Nations is based upon -the common consent of the different States, it is improbable that a -civilised State would intentionally enact a rule conflicting with the -Law of Nations. A part of Municipal Law, which ostensibly seems to -conflict with the Law of Nations, must, therefore, if possible, always -be so interpreted as essentially not containing such conflict. - -[Sidenote: Presumption of Existence of certain necessary Municipal -Rules.] - -§ 24. In case of a gap in the statutes of a civilised State regarding -certain rules necessitated by the Law of Nations, such rules ought to be -presumed by the Courts to have been tacitly adopted by such Municipal -Law. It may be taken for granted that a State which is a member of the -Family of Nations does not intentionally want its Municipal Law to be -deficient in such rules. If, for instance, the Municipal Law of a State -does not by a statute grant the necessary privileges to diplomatic -envoys, the courts ought to presume that such privileges are tacitly -granted. - -[Sidenote: Presumption of the Existence of certain Municipal Rules in -Conformity with Rights granted by the Law of Nations.] - -§ 25. There is no doubt that a State need not make use of all the rights -it has by the Law of Nations, and that, consequently, every State can by -its laws expressly renounce the whole or partial use of such rights, -provided always it is ready to fulfil such duties, if any, as are -connected with these rights. However, when no such renunciation has -taken place, Municipal Courts ought, in case the interests of justice -demand it, to presume that their Sovereign has tacitly consented to make -use of such rights. If, for instance, the Municipal Law of a State does -not by a statute extend its jurisdiction over its maritime belt, its -courts ought to presume that, since by the Law of Nations the -jurisdiction of a State does extend over its maritime belt, their -Sovereign has tacitly consented to that wider range of its jurisdiction. - -A remarkable case illustrating this happened in this country in 1876. -The German vessel _Franconia_, while passing through the British -maritime belt within three miles of Dover, negligently ran into the -British vessel _Strathclyde_, and sank her. As a passenger on board the -latter was thereby drowned, the commander of the _Franconia_, the German -Keyn, was indicted at the Central Criminal Court and found guilty of -manslaughter. The Court for Crown Cases Reserved, however, to which the -Central Criminal Court referred the question of jurisdiction, held by a -majority of one judge that, according to the law of the land, English -courts had no jurisdiction over crimes committed in the English maritime -belt. Keyn was therefore not punished.[25] To provide for future cases -of like kind, Parliament passed, in 1878, the "Territorial Waters -Jurisdiction Act."[26] - -[Footnote 25: L.R. 2 Ex. Div. 63. See Phillimore, I. § 198 B; Maine, pp. -39-45. See also below, § 189, where the controversy is discussed whether -a littoral State has jurisdiction over foreign vessels that merely pass -through its maritime belt.] - -[Footnote 26: 41 and 42 Vict. c. 73.] - - -V - -DOMINION OF THE LAW OF NATIONS - - Lawrence, § 44--Phillimore, I. §§ 27-33--Twiss, I. § 62--Taylor, - §§ 61-64--Westlake, I. p. 40--Bluntschli, §§ 1-16--Heffter, § - 7--Holtzendorff in Holtzendorff, I. pp. 13-18--Nys, I. pp. - 116-132--Rivier, I. § 1--Bonfils, Nos. 40-45--Despagnet, Nos. - 51-53--Martens, I. § 41--Fiore, Code, Nos. 38-43--Ullmann, § - 10--Nippold in Z.V. II. (1908), pp. 441-443--Cavaglieri in R.G. - XVIII. (1911), pp. 259-292. - -[Sidenote: Range of Dominion of International Law controversial.] - -§ 26. Dominion of the Law of Nations is the name given to the area -within which International Law is applicable--that is, those States -between which International Law finds validity. The range of the -dominion of the Law of Nations is controversial, two extreme opinions -concerning this dominion being opposed. Some publicists[27] maintain -that the dominion of the Law of Nations extends as far as humanity -itself, that every State, whether Christian or non-Christian, civilised -or uncivilised, is a subject of International Law. On the other hand, -several jurists[28] teach that the dominion of the Law of Nations -extends only as far as Christian civilisation, and that Christian States -only are subjects of International Law. Neither of these opinions would -seem to be in conformity with the facts of the present international -life and the basis of the Law of Nations. There is no doubt that the Law -of Nations is a product of Christian civilisation. It originally arose -between the States of Christendom only, and for hundreds of years was -confined to these States. Between Christian and Mohammedan nations a -condition of perpetual enmity prevailed in former centuries. And no -constant intercourse existed in former times between Christian and -Buddhistic States. But from about the beginning of the nineteenth -century matters gradually changed. A condition of perpetual enmity -between whole groups of nations exists no longer either in theory or in -practice. And although there is still a broad and deep gulf between -Christian civilisation and others, many interests, which knit Christian -States together, knit likewise some non-Christian and Christian States. - -[Footnote 27: See, for instance, Bluntschli, § 8, and Fiore, Code, No. -38.] - -[Footnote 28: See, for instance, Martens, § 41.] - -[Sidenote: Three Conditions of Membership of the Family of Nations.] - -§ 27. Thus the membership of the Family of Nations has of late -necessarily been increased, and the range of the dominion of the Law of -Nations has extended beyond its original limits. This extension has -taken place in conformity with the basis of the Law of Nations. As this -basis is the common consent of the civilised States, there are three -conditions for the admission of new members into the circle of the -Family of Nations. A State to be admitted must, first, be a civilised -State which is in constant intercourse with members of the Family of -Nations. Such State must, secondly, expressly or tacitly consent to be -bound for its future international conduct by the rules of International -Law. And, thirdly, those States which have hitherto formed the Family of -Nations must expressly or tacitly consent to the reception of the new -member. - -The last two conditions are so obvious that they need no comment. -Regarding the first condition, however, it must be emphasised that not -particularly Christian civilisation, but civilisation of such kind only -is conditioned as to enable the State concerned and its subjects to -understand and to act in conformity with the principles of the Law of -Nations. These principles cannot be applied to a State which is not able -to apply them on its own part to other States. On the other hand, they -can well be applied to a State which is able and willing to apply them -to other States, provided a constant intercourse has grown up between it -and other States. The fact is that the Christian States have been of -late compelled by pressing circumstances to receive several -non-Christian States into the community of States which are subjects of -International Law. - -[Sidenote: Present range of Dominion of the Law of Nations.] - -§ 28. The present range of the dominion of International Law is a -product of historical development within which epochs are -distinguishable marked by successive entrances of various States into -the Family of Nations. - -(1) The old Christian States of Western Europe are the original members -of the Family of Nations, because the Law of Nations grew up gradually -between them through custom and treaties. Whenever afterwards a new -Christian State made its appearance in Europe, it was received into the -charmed circle by the old members of the Family of Nations. It is for -this reason that this law was in former times frequently called -"European Law of Nations." But this name has nowadays historical value -only, as it has been changed into "Law of Nations," or "International -Law" pure and simple. - -(2) The next group of States which entered into the Family of Nations is -the body of Christian States which grew up outside Europe. All the -American[29] States which arose out of colonies of European States -belong to this group. And it must be emphasised that the United States -of America have largely contributed to the growth of the rules of -International Law. The two Christian Negro Republics of Liberia in West -Africa and of Haiti on the island of San Domingo belong to this group. - -[Footnote 29: But it ought not to be maintained that there is--in -contradistinction to the European--an American International Law in -existence; see, however, Alvarez, "Le Droit International Américain" -(1910), and again Alvarez in A.J. III. (1909), pp. 269-353.] - -(3) With the reception of the Turkish Empire into the Family of Nations -International Law ceased to be a law between Christian States solely. -This reception has expressly taken place through Article 7 of the Peace -Treaty of Paris of 1856, in which the five Great European Powers of the -time, namely, France, Austria, England, Prussia, and Russia, and besides -those Sardinia, the nucleus of the future Great Power Italy, expressly -"déclarent la Sublime Porte admise à participer aux avantages du droit -public et du concert européens." Since that time Turkey has on the whole -endeavoured in time of peace and war to act in conformity with the rules -of International Law, and she has, on the other hand, been treated[30] -accordingly by the Christian States. No general congress has taken place -since 1856 to which Turkey has not been invited to send her delegates. - -[Footnote 30: There is no doubt that Turkey, in spite of having been -received into the Family of Nations, has nevertheless hitherto been in -an anomalous position as a member of that family, owing to the fact that -her civilisation has not yet reached the level of that of the Western -States. It is for this reason that the so-called Capitulations are still -in force and that other anomalies still prevail, but their disappearance -is only a question of time.] - -(4) Another non-Christian member of the Family of Nations is Japan. A -generation ago one might have doubted whether Japan was a real and full -member of that family, but since the end of the nineteenth century no -doubt is any longer justified. Through marvellous efforts, Japan has -become not only a modern State, but an influential Power. Since her war -with China in 1895, she must be considered one of the Great Powers that -lead the Family of Nations. - -(5) The position of such States as Persia, Siam, China, Morocco, -Abyssinia, and the like, is doubtful. These States are certainly -civilised States, and Abyssinia is even a Christian State. However, -their civilisation has not yet reached that condition which is necessary -to enable their Governments and their population in every respect to -understand and to carry out the command of the rules of International -Law. On the other hand, international intercourse has widely arisen -between these States and the States of the so-called Western -civilisation. Many treaties have been concluded with them, and there is -full diplomatic intercourse between them and the Western States. China, -Persia, and Siam have even taken part in the Hague Peace Conferences. -All of them make efforts to educate their populations, to introduce -modern institutions, and thereby to raise their civilisation to the -level of that of the Western. They will certainly succeed in this -respect in the near future. But as yet they have not accomplished this -task, and consequently they are not yet able to be received into the -Family of Nations as full members. Although they are, as will be shown -below (§ 103), for some parts within the circle of the Family of -Nations, they remain for other parts outside. But the example of Japan -can show them that it depends entirely upon their own efforts to be -received as full members into that family. - -(6) It must be mentioned that a State of quite a unique character, the -former Congo Free State,[31] was, since the Berlin Conference of -1884-1885, a member of the Family of Nations. But it lost its membership -in 1908 when it merged in Belgium by cession. - -[Footnote 31: See below, § 101.] - -[Sidenote: Treatment of States outside the Family of Nations.] - -§ 29. The Law of Nations as a law between States based on the common -consent of the members of the Family of Nations naturally does not -contain any rules concerning the intercourse with and treatment of such -States as are outside that circle. That this intercourse and treatment -ought to be regulated by the principles of Christian morality is -obvious. But actually a practice frequently prevails which is not only -contrary to Christian morality, but arbitrary and barbarous. Be that as -it may, it is discretion, and not International Law, according to which -the members of the Family of Nations deal with such States as still -remain outside that family. But the United States of America apply, as -far as possible, the rules of International Law to their relations with -the Red Indians. - - -VI - -CODIFICATION OF THE LAW OF NATIONS - - Holtzendorff in Holtzendorff, I. pp. 136-152--Ullmann, § - 11--Despagnet, Nos. 67-68--Bonfils, Nos. 1713-1727--Mérignhac, I. - pp. 26-28--Nys, I. pp. 166-183--Rivier, I. § 2--Fiore, I. Nos. - 124-127--Martens, I. § 44--Holland, Studies, pp. 78-95--Bergbohm, - "Staatsverträge und Gesetze als Quellen des Völkerrechts" (1877), - pp. 44-77--Bulmerincq, "Praxis, Theorie, und Codification des - Völkerrechts" (1874), pp. 167-192--Roszkowski in R.I. XXI. (1889), - p. 520--Proceedings of the American Society of International Law, - IV. (1910), pp. 208-227. - -[Sidenote: Movement in Favour of Codification.] - -§ 30. The lack of precision which is natural to a large number of the -rules of the Law of Nations on account of its slow and gradual growth -has created a movement for its codification. The idea of a codification -of the Law of Nations in its totality arose at the end of the eighteenth -century. It was Bentham who first suggested such a codification. He did -not, however, propose codification of the existing positive Law of -Nations, but thought of a utopian International Law which could be the -basis of an everlasting peace between the civilised States.[32] - -[Footnote 32: See Bentham's Works, ed. Bowring, VIII. p. 537; Nys, in -_The Law Quarterly Review_, XI. (1885), pp. 226-231.] - -Another utopian project is due to the French Convention, which resolved -in 1792 to create a Declaration of the Rights of Nations as a pendant to -the Declaration of the Rights of Mankind of 1789. For this purpose the -Abbé Grégoire was charged with the drafting of such a declaration. In -1795, Abbé Grégoire produced a draft of twenty-one articles, which, -however, was rejected by the Convention, and the matter dropped.[33] - -[Footnote 33: See Rivier, I. p. 40, where the full text of these -twenty-one articles is given. They did not contain a real code, but -certain principles only.] - -It was not until 1861 that a real attempt was made to show the -possibility of a codification. This was done by an Austrian jurist, -Alfons von Domin-Petrushevecz, who published in that year at Leipzig a -"Précis d'un Code de Droit International." - -In 1862, the Russian Professor Katschenowsky brought an essay before the -Juridical Society of London (Papers II. 1863) arguing the necessity of a -codification of International Law. - -In 1863, Professor Francis Lieber, of the Columbia College, New York, -drafted the Laws of War in a body of rules which the United States -published during the Civil War for the guidance of her army.[34] - -[Footnote 34: See below, vol. II. § 68.] - -In 1868, Bluntschli, the celebrated Swiss interpreter of the Law of -Nations, published "Das moderne Völkerrecht der civilisirten Staaten als -Rechtsbuch dargestellt." This draft code has been translated into the -French, Greek, Spanish, and Russian languages, and the Chinese -Government produced an official Chinese translation as a guide for -Chinese officials. - -In 1872, the great Italian politician and jurist Mancini raised his -voice in favour of codification of the Law of Nations in his able essay -"Vocazione del nostro secolo per la riforma e codificazione del diritto -delle genti." - -Likewise in 1872 appeared at New York David Dudley Field's "Draft -Outlines of an International Code." - -In 1873 the Institute of International Law was founded at Ghent in -Belgium. This association of jurists of all nations meets periodically, -and has produced a number of drafts concerning various parts of -International Law, and in especial a Draft Code of the Law of War on -Land (1880). - -Likewise in 1873 was founded the Association for the Reform and -Codification of the Law of Nations, which also meets periodically and -which styles itself now the International Law Association. - -In 1874 the Emperor Alexander II. of Russia took the initiative in -assembling an international conference at Brussels for the purpose of -discussing a draft code of the Law of Nations concerning land warfare. -At this conference jurists, diplomatists, and military men were united -as delegates of the invited States, and they agreed upon a body of sixty -articles which goes under the name of The Declaration of Brussels. But -the Powers have never ratified these articles. - -In 1880 the Institute of International Law published its "Manuel des -Lois de la Guerre sur Terre." - -In 1887 Leone Levi published his "International Law with Materials for a -Code of International Law." - -In 1890 the Italian jurist Fiore published his "Il diritto -internazionale codificato e sua sanzione giuridica," of which a fourth -edition appeared in 1911. - -In 1906 E. Duplessix published his "La loi des Nations. Projet -d'institution d'une autorité nationale, législative, administrative, -judiciaire. Projet de Code de Droit international public." - -In 1911 Jerome Internoscia published his "New Code of International Law" -in English, French, and Italian. - -[Sidenote: Work of the first Hague Peace Conference.] - -§ 31. At the end of the nineteenth century, in 1899, the so-called Peace -Conference at the Hague, convened on the personal initiative of the -Emperor Nicholas II. of Russia, has shown the possibility that parts of -the Law of Nations may well be codified. Apart from three Declarations -of minor value and of the convention concerning the adaptation of the -Geneva Convention to naval warfare, this conference has succeeded in -producing two important conventions which may well be called -codes--namely, first, the "Convention for the Pacific Settlement of -International Disputes," and, secondly, the "Convention with respect to -the Laws and Customs of War on Land." The great practical importance of -the first-named convention is now being realised, as the Permanent Court -of Arbitration has in a number of cases already successfully given its -award. Nor can the great practical value of the second-named convention -be denied. Although the latter contains, even in the amended form given -to it by the second Hague Peace Conference of 1907, many gaps, which -must be filled up by the customary Law of Nations, and although it is -not a masterpiece of codification, it represents a model, the very -existence of which teaches that codification of parts of the Law of -Nations is practicable, provided the Powers are inclined to come to an -understanding. The first Hague Peace Conference has therefore made an -epoch in the history of International Law. - -[Sidenote: Work of the second Hague Peace Conference and the Naval -Conference of London.] - -§ 32. Shortly after the Hague Peace Conference of 1899, the United -States of America took a step with regard to sea warfare similar to that -taken by her in 1863 with regard to land warfare. She published on June -27, 1900, a body of rules for the use of her navy under the title "The -Laws and Usages of War at Sea"--the so-called "United States Naval War -Code"--which was drafted by Captain Charles H. Stockton, of the United -States Navy. - -Although, on February 4, 1904, this code was by authority of the -President of the United States withdrawn it provided the starting-point -of a movement for codification of maritime International Law. No -complete Naval War Code agreed upon by the Powers has as yet made its -appearance, but the second Hague Peace Conference of 1907 and the Naval -Conference of London of 1908-9 have produced a number of law-making -treaties which represent codifications of several parts of maritime -International Law. - -The second Hague Peace Conference met in 1907 and produced not less than -thirteen conventions and one declaration. This declaration prohibits the -discharge of projectiles and explosives from balloons and takes the -place of a corresponding declaration of the first Hague Peace -Conference. And three of the thirteen conventions, namely that for the -pacific settlement of international disputes, that concerning the laws -and customs of war on land, and that concerning the adaptation of the -principles of the Geneva Convention to maritime war, likewise take the -place of three corresponding conventions of the first Hague Peace -Conference. But the other ten conventions are entirely new and concern: -the limitation of the employment of force for the recovery of contract -debts, the opening of hostilities, the rights and duties of neutral -Powers and persons in war on land, the status of enemy merchant ships at -the outbreak of hostilities, the conversion of merchant ships into war -ships, the laying of automatic submarine contact mines, bombardments by -naval forces in time of war, restrictions on the exercise of the right -of capture in maritime war, the establishment of a Prize Court, the -rights and duties of neutral Powers in maritime war. - -The Naval Conference of London which met in November 1908, and sat till -February 1909, produced the Declaration of London, the most important -law-making treaty as yet concluded. Its nine chapters deal with: -blockade, contraband, unneutral service, destruction of neutral prizes, -transfer to a neutral flag, enemy character, convoy, resistance to -search, compensation. The Declaration of London, when ratified, will -make the establishment of an International Prize Court possible. - -[Sidenote: Value of Codification of International Law contested.] - -§ 33. In spite of the movement in favour of codification of the Law of -Nations, there are many eminent jurists who oppose such codification. -They argue that codification would never be possible on account of -differences of languages and of technical juridical terms. They assert -that codification would cut off the organic growth and future -development of International Law. They postulate the existence of a -permanent International Court with power of executing its verdicts as an -indispensable condition, since without such a court no uniform -interpretation of controversial parts of a code could be possible. -Lastly, they maintain that the Law of Nations is not yet at present, and -will not be for a long time to come, ripe for codification. Those -jurists, on the other hand, who are in favour of codification argue that -the customary Law of Nations to a great extent lacks precision and -certainty, that writers on International Law differ in many points -regarding its rules, and that, consequently, there is no broad and -certain basis for the practice of the States to stand upon. - -[Sidenote: Merits of Codification in general.] - -§ 34. I am decidedly not a blind and enthusiastic admirer of -codification in general. It cannot be maintained that codification is -everywhere, at all times, and under all circumstances opportune. -Codification certainly interferes with the so-called organic growth of -the law through usage into custom. It is true that a law, once codified, -cannot so easily adapt itself to the individual merits of particular -cases which come under it. It is further a fact, which cannot be denied, -that together with codification there frequently enters into courts of -justice and into the area of juridical literature a hair-splitting -tendency and an interpretation of the law which often clings more to the -letter and the word of the law than to its spirit and its principles. -And it is not at all a fact that codification does away with -controversies altogether. Codification certainly clears up many -questions of law which have been hitherto debatable, but it creates at -the same time new controversies. And, lastly, all jurists know very well -that the art of legislation is still in its infancy and not at all -highly developed. The hands of legislators are very often clumsy, and -legislation often does more harm than good. Yet, on the other hand, the -fact must be recognised that history has given its verdict in favour of -codification. There is no civilised State in existence whose Municipal -Law is not to a greater or lesser extent codified. The growth of the law -through custom goes on very slowly and gradually, very often too slowly -to be able to meet the demands of the interests at stake. New interests -and new inventions very often spring up with which customary law cannot -deal. Circumstances and conditions frequently change so suddenly that -the ends of justice are not met by the existing customary law of a -State. Thus, legislation, which is, of course, always partial -codification, becomes often a necessity in the face of which all -hesitation and scruple must vanish. Whatever may be the disadvantages of -codification, there comes a time in the development of every civilised -State when it can no longer be avoided. And great are the advantages of -codification, especially of a codification that embraces a large part of -the law. Many controversies are done away with. The science of Law -receives a fresh stimulus. A more uniform spirit enters into the law of -the country. New conditions and circumstances of life become legally -recognised. Mortifying principles and branches are cut off with one -stroke. A great deal of fresh and healthy blood is brought into the -arteries of the body of the law in its totality. If codification is -carefully planned and prepared, if it is imbued with true and healthy -conservatism, many disadvantages can be avoided. And interpretation on -the part of good judges can deal with many a fault that codification has -made. If the worst comes to the worst, there is always a Parliament or -another law-giving authority of the land to mend through further -legislation the faults of previous codification. - -[Sidenote: Merits of Codification of International Law.] - -§ 35. But do these arguments in favour of codification in general also -apply to codification of the Law of Nations? I have no doubt that they -do more or less. If some of these arguments have no force in view of the -special circumstances of the existence of International Law and of the -peculiarities of the Family of Nations, there are other arguments which -take their place. - -When opponents maintain that codification would never be practicable on -account of differences of language and of technical juridical terms, I -answer that this difficulty is only as great an obstacle in the way of -codification as it is in the way of contracting international treaties. -The fact that such treaties are concluded every day shows that -difficulties which arise out of differences of language and of technical -juridical terms are not at all insuperable. - -Of more weight than this is the next argument of opponents, that -codification of the Law of Nations would cut off its organic growth and -future development. It cannot be denied that codification always -interferes with the growth of customary law, although the assertion is -not justified that codification does _cut off_ such growth. But this -disadvantage can be met by periodical revisions of the code and by its -gradual increase and improvement through enactment of additional and -amending rules according to the wants and needs of the days to come. - -When opponents postulate an international court with power of executing -its verdicts as an indispensable condition of codification, I answer -that the non-existence of such a court is quite as much or as little an -argument against codification as against the very existence of -International Law. If there is a Law of Nations in existence in spite of -the non-existence of an international court to guarantee its -realisation, I cannot see why the non-existence of such a court should -be an obstacle to codifying the very same Law of Nations. It may indeed -be maintained that codification is all the more necessary as such an -international court does not exist. For codification of the Law of -Nations and the solemn recognition of a code by a universal law-making -international treaty would give more precision, certainty, and weight to -the rules of the Law of Nations than they have now in their unwritten -condition. And a uniform interpretation of a code is now, since the -first Hague Peace Conference has instituted a Permanent Court of -Arbitration, and since the second Peace Conference has resolved upon the -establishment of an International Prize Court, much more realisable than -in former times, although these courts will never have the power of -executing their verdicts. - -But is the Law of Nations ripe for codification? I readily admit that -there are certain parts of that law which would offer the greatest -difficulty, and which therefore had better remain untouched for the -present. But there are other parts, and I think that they constitute the -greater portion of the Law of Nations, which are certainly ripe for -codification. There can be no doubt that, whatever can be said against -codification of the whole of the Law of Nations, partial codification is -possible and comparatively easy. The work done by the Institute of -International Law, and published in the "Annuaire de l'Institut de Droit -International," gives evidence of it. And the number and importance of -the law-making treaties produced by the Hague Peace Conferences and the -Maritime Conference of London, 1908-9, should leave no doubt as to the -feasibility of such partial codification. - -[Sidenote: How Codification could be realised.] - -§ 36. However, although possible, codification could hardly be realised -at once. The difficulties, though not insuperable, are so great that it -would take the work of perhaps a generation of able jurists to prepare -draft codes for those parts of International Law which may be considered -ripe for codification. The only way in which such draft codes could be -prepared consists in the appointment on the part of the Powers of an -international committee composed of a sufficient number of able jurists, -whose task would be the preparation of the drafts. Public opinion of the -whole civilised world would, I am sure, watch the work of these men with -the greatest interest, and the Parliaments of the civilised States would -gladly vote the comparatively small sums of money necessary for the -costs of the work. But in proposing codification it is necessary to -emphasise that it does not necessarily involve a reconstruction of the -present international order and a recasting of the whole system of -International Law as it at present stands. Naturally, a codification -would in many points mean not only an addition to the rules at present -recognised, but also the repeal, alteration, and reconstruction of some -of these rules. Yet, however this may be, I do not believe that a -codification ought to be or could be undertaken which would -revolutionise the present international order and put the whole system -of International Law on a new basis. The codification which I have in -view is one that would embody the existing rules of International Law -together with such modifications and additions as are necessitated by -the conditions of the age and the very fact of codification being taken -in hand. If International Law, as at present recognised, is once -codified, nothing prevents reformers from making proposals which could -be realised by successive codification. - - - - -CHAPTER II - -DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS - - -I - -DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS - - Lawrence, §§ 20-29--Manning, pp. 8-20--Halleck, I. pp. - 1-11--Walker, History, I. pp. 30-137--Taylor, §§ 6-29--Ullmann, §§ - 12-14--Holtzendorff in Holtzendorff, I, pp. 159-386--Nys, I. pp. - 1-18--Martens, I. §§ 8-20--Fiore, I. Nos. 3-31--Calvo, I. pp. - 1-32--Bonfils, Nos. 71-86--Despagnet, Nos. 1-19--Mérignhac, I. pp. - 38-43--Laurent, "Histoire du Droit des Gens," &c., 14 vols. (2nd - ed. 1861-1868)--Ward, "Enquiry into the Foundation and History of - the Law of Nations," 2 vols. (1795)--Osenbrüggen, "De Jure Belli - ac Pacis Romanorum" (1876)--Müller-Jochmus, "Geschichte des - Völkerrechts im Alterthum" (1848)--Hosack, "Rise and Growth of the - Law of Nations" (1883), pp. 1-226--Nys, "Le Droit de la Guerre et - les Précurseurs de Grotius" (1882) and "Les Origines du Droit - International" (1894)--Hill, "History of Diplomacy in the - International Development of Europe," vol. I. (1905) and vol. II. - (1906)--Cybichowski, "Das antike Völkerrecht" (1907)--Phillipson, - "The International Law and Custom of Ancient Greece and Rome," 2 - vols. (1910)--Strupp, "Urkunden zur Geschichte des Völkerrechts," - 2 vols. (1911). - -[Sidenote: No Law of Nations in antiquity.] - -§ 37. International Law as a law between Sovereign and equal States -based on the common consent of these States is a product of modern -Christian civilisation, and may be said to be hardly four hundred years -old. However, the roots of this law go very far back into history. Such -roots are to be found in the rules and usages which were observed by the -different nations of antiquity with regard to their external relations. -But it is well known that the conception of a Family of Nations did not -arise in the mental horizon of the ancient world. Each nation had its -own religion and gods, its own language, law, and morality. -International interests of sufficient vigour to wind a band around all -the civilised States, bring them nearer to each other, and knit them -together into a community of nations, did not spring up in antiquity. On -the other hand, however, no nation could avoid coming into contact with -other nations. War was waged and peace concluded. Treaties were agreed -upon. Occasionally ambassadors were sent and received. International -trade sprang up. Political partisans whose cause was lost often fled -their country and took refuge in another. And, just as in our days, -criminals often fled their country for the purpose of escaping -punishment. - -Such more or less frequent and constant contact of different nations -with one another could not exist without giving rise to certain fairly -congruent rules and usages to be observed with regard to external -relations. These rules and usages were considered under the protection -of the gods; their violation called for religious expiation. It will be -of interest to throw a glance at the respective rules and usages of the -Jews, Greeks, and Romans. - -[Sidenote: The Jews.] - -§ 38. Although they were monotheists and the standard of their ethics -was consequently much higher than that of their heathen neighbours, the -Jews did not in fact raise the standard of the international relations -of their time except so far as they afforded foreigners living on Jewish -territory equality before the law. Proud of their monotheism and -despising all other nations on account of their polytheism, they found -it totally impossible to recognise other nations as equals. If we -compare the different parts of the Bible concerning the relations of the -Jews with other nations, we are struck by the fact that the Jews were -sworn enemies of some foreign nations, as the Amalekites, for example, -with whom they declined to have any relations whatever in peace. When -they went to war with those nations, their practice was extremely -cruel. They killed not only the warriors on the battlefield, but also -the aged, the women, and the children in their homes. Read, for example, -the short description of the war of the Jews against the Amalekites in 1 -Samuel xv., where we are told that Samuel instructed King Saul as -follows: (3) "Now go and smite Amalek, and utterly destroy all that they -have, and spare them not; but slay both man and woman, infant and -suckling, ox and sheep, camel and ass." King Saul obeyed the injunction, -save that he spared the life of Agag, the Amalekite king, and some of -the finest animals. Then we are told that the prophet Samuel rebuked -Saul and "hewed Agag in pieces with his own hand." Or again, in 2 Samuel -xii. 31, we find that King David, "the man after God's own heart," after -the conquest of the town of Rabbah, belonging to the Ammonites, "brought -forth the people that were therein and put them under saws, and under -harrows of iron, and made them pass through the brick-kiln...." - -With those nations, however, of which they were not sworn enemies the -Jews used to have international relations. And when they went to war -with those nations, their practice was in no way exceptionally cruel, if -looked upon from the standpoint of their time and surroundings. Thus we -find in Deuteronomy xx. 10-14 the following rules:-- - -(10) "When thou comest nigh unto a city to fight against it, then -proclaim peace unto it. - -(11) "And it shall be, if it make thee answer of peace and open unto -thee, that all the people that is found therein shall be tributaries -unto thee, and they shall serve thee. - -(12) "And if it will make no peace with thee, but will make war against -thee, then thou shalt besiege it. - -(13) "And when the Lord thy God hath delivered it into thine hands, -thou shalt smite every male thereof with the edge of the sword. - -(14) "But the women, and the little ones, and the cattle, and all that -is in the city, even all the spoil thereof, shalt thou take unto -thyself; and thou shalt eat the spoil of thine enemies, which the Lord -thy God hath given thee." - -Comparatively mild, like these rules for warfare, were the Jewish rules -regarding their foreign slaves. Such slaves were not without legal -protection. The master who killed a slave was punished (Exodus ii. 20); -if the master struck his slave so severely that he lost an eye or a -tooth, the slave became a free man (Exodus ii. 26 and 27). The Jews, -further, allowed foreigners to live among them under the full protection -of their laws. "Love ... the stranger, for ye were strangers in the land -of Egypt," says Deuteronomy x. 19, and in Leviticus xxiv. 22 there is -the command: "You shall have one manner of law, as well for the stranger -as for one of your own country." - -Of the greatest importance, however, for the International Law of the -future, are the Messianic ideals and hopes of the Jews, as these -Messianic ideals and hopes are not national only, but fully -_inter_national. The following are the beautiful words in which the -prophet Isaiah (ii. 2-4) foretells the state of mankind when the Messiah -shall have appeared: - -(2) "And it shall come to pass in the last days, that the mountain of -the Lord's house shall be established in the top of the mountains, and -shall be exalted above the hills; and all nations shall flow unto it. - -(3) "And many people shall go and say, Come ye, and let us go up to the -mountain of the Lord, to the house of the God of Jacob, and he will -teach us of his ways, and we will walk in his paths; for out of Zion -shall go forth the law, and the word of the Lord from Jerusalem. - -(4) "And he shall judge among the nations, and shall rebuke many people: -and they shall beat their swords into plowshares, and their spears into -pruning-hooks: nation shall not lift up sword against nation, neither -shall they learn war any more." - -Thus we see that the Jews, at least at the time of Isaiah, had a -foreboding and presentiment of a future when all the nations of the -world should be united in peace. And the Jews have given this ideal to -the Christian world. It is the same ideal which has in bygone times -inspired all those eminent men who have laboured to build up an -International Law. And it is again the same ideal which nowadays -inspires all lovers of international peace. Although the Jewish State -and the Jews as a nation have practically done nothing to realise that -ideal, yet it sprang up among them and has never disappeared. - -[Sidenote: The Greeks.] - -§ 39. Totally different from this Jewish contribution to a future -International Law is that of the Greeks. The broad and deep gulf between -their civilisation and that of their neighbours necessarily made them -look down upon those neighbours as barbarians, and thus prevented them -from raising the standard of their relations with neighbouring nations -above the average level of antiquity. But the Greeks before the -Macedonian conquest were never united into one powerful national State. -They lived in numerous more or less small city States, which were -totally independent of one another. It is this very fact which, as time -went on, called into existence a kind of International Law between these -independent States. They could never forget that their inhabitants were -of the same race. The same blood, the same religion, and the same -civilisation of their citizens united these independent and--as we -should say nowadays--Sovereign States into a community of States which -in time of peace and war held themselves bound to observe certain rules -as regards the relations between one another. The consequence was that -the practice of the Greeks in their wars among themselves was a very -mild one. It was a rule that war should never be commenced without a -declaration of war. Heralds were inviolable. Warriors who died on the -battlefield were entitled to burial. If a city was captured, the lives -of all those who took refuge in a temple had to be spared. War prisoners -could be exchanged or ransomed; their lot was, at the utmost, slavery. -Certain places, as, for example, the temple of the god Apollo at Delphi, -were permanently inviolable. Even certain persons in the armies of the -belligerents were considered inviolable, as, for instance, the priests, -who carried the holy fire, and the seers. - -Thus the Greeks left to history the example that independent and -Sovereign States can live, and are in reality compelled to live, in a -community which provides a law for the international relations of the -member-States, provided that there exist some common interests and aims -which bind these States together. It is very often maintained that this -kind of International Law of the Greek States could in no way be -compared with our modern International Law, as the Greeks did not -consider their international rules as legally, but as religiously -binding only. We must, however, not forget that the Greeks never made -the same distinction between law, religion, and morality which the -modern world makes. The fact itself remains unshaken that the Greek -States set an example to the future that independent States can live in -a community in which their international regulations are governed by -certain rules and customs based on the common consent of the members of -that community. - -[Sidenote: The Romans.] - -§ 40. Totally different again from the Greek contribution to a future -International Law is that of the Romans. As far back as their history -goes, the Romans had a special set of twenty priests, the so-called -_fetiales_, for the management of functions regarding their relations -with foreign nations. In fulfilling their functions the _fetiales_ did -not apply a purely secular but a divine and holy law, a _jus sacrale_, -the so-called _jus fetiale_. The _fetiales_ were employed when war was -declared or peace was made, when treaties of friendship or of alliance -were concluded, when the Romans had an international claim before a -foreign State, or _vice versa_. - -According to Roman Law the relations of the Romans with a foreign State -depended upon the fact whether or not there existed a treaty of -friendship between Rome and the respective State. In case no such treaty -was in existence, persons or goods coming from the foreign land into the -land of the Romans, and likewise persons and goods going from the land -of the Romans into the foreign land, enjoyed no legal protection -whatever. Such persons could be made slaves, and such goods could be -seized, and became the property of the captor. Should such an enslaved -person ever come back to his country, he was at once considered a free -man again according to the so-called _jus postliminii_. An exception was -made as regards ambassadors. They were always considered inviolable, and -whoever violated them was handed over to the home State of those -ambassadors to be punished according to discretion. - -Different were the relations when a treaty of friendship existed. -Persons and goods coming from one country into the other stood then -under legal protection. So many foreigners came in the process of time -to Rome that a whole system of law sprang up regarding these foreigners -and their relations with Roman citizens, the so-called _jus gentium_ in -contradistinction to the _jus civile_. And a special magistrate, the -_praetor peregrinus_, was nominated for the administration of that -law. Of such treaties with foreign nations there were three different -kinds, namely, of _friendship_ (_amicitia_), of _hospitality_ -(_hospitium_), or of _alliance_ (_foedus_). I do not propose to go into -details about them. It suffices to remark that, although the treaties -were concluded without any such provision, notice of termination could -be given. Very often these treaties used to contain a provision -according to which future controversies could be settled by arbitration -of the so-called _recuperatores_. - -Very precise legal rules existed as regards war and peace. Roman law -considered war a legal institution. There were four different just -reasons for war, namely: (1) Violation of the Roman dominion; (2) -violation of ambassadors; (3) violation of treaties; (4) support given -during war to an opponent by a hitherto friendly State. But even in such -cases war was only justified if satisfaction was not given by the -foreign State. Four _fetiales_ used to be sent as ambassadors to the -foreign State from which satisfaction was asked. If such satisfaction -was refused, war was formally declared by one of the _fetiales_ throwing -a lance from the Roman frontier into the foreign land. For warfare -itself no legal rules existed, but discretion only, and there are -examples enough of great cruelty on the part of the Romans. Legal rules -existed, however, for the end of war. War could be ended, first, through -a treaty of peace, which was then always a treaty of friendship. War -could, secondly, be ended by surrender (_deditio_). Such surrender -spared the enemy their lives and property. War could, thirdly and -lastly, be ended through conquest of the enemy's country (_occupatio_). -It was in this case that the Romans could act according to discretion -with the lives and the property of the enemy. - -From this sketch of their rules concerning external relations, it -becomes apparent that the Romans gave to the future the example of a -State with _legal_ rules for its foreign relations. As the legal people -_par excellence_, the Romans could not leave their international -relations without legal treatment. And though this legal treatment can -in no way be compared to modern International Law, yet it constitutes a -contribution to the Law of Nations of the future, in so far as its -example furnished many arguments to those to whose efforts we owe the -very existence of our modern Law of Nations. - -[Sidenote: No need for a Law of Nations during the Middle Ages.] - -§ 41. The Roman Empire gradually absorbed nearly the whole civilised -ancient world, so far as it was known to the Romans. They hardly knew of -any independent civilised States outside the borders of their empire. -There was, therefore, neither room nor need for an International Law as -long as this empire existed. It is true that at the borders of this -world-empire there were always wars, but these wars gave opportunity for -the practice of a few rules and usages only. And matters did not change -when under Constantine the Great (313-337) the Christian faith became -the religion of the empire and Byzantium its capital instead of Rome, -and, further, when in 395 the Roman Empire was divided into the Eastern -and the Western Empire. This Western Empire disappeared in 476, when -Romulus Augustus, the last emperor, was deposed by Odoacer, the leader -of the Germanic soldiers, who made himself ruler in Italy. The land of -the extinct Western Roman Empire came into the hands of different -peoples, chiefly of Germanic extraction. In Gallia the kingdom of the -Franks springs up in 486 under Chlodovech the Merovingian. In Italy, the -kingdom of the Ostrogoths under Theoderich the Great, who defeated -Odoacer, rises in 493. In Spain the kingdom of the Visigoths appears in -507. The Vandals had, as early as in 429, erected a kingdom in Africa, -with Carthage as its capital. The Saxons had already gained a footing in -Britannia in 449. - -All these peoples were barbarians in the strict sense of the term. -Although they had adopted Christianity, it took hundreds of years to -raise them to the standard of a more advanced civilisation. And, -likewise, hundreds of years passed before different nations came to -light out of the amalgamation of the various peoples that had conquered -the old Roman Empire with the residuum of the population of that empire. -It was in the eighth century that matters became more settled. -Charlemagne built up his vast Frankish Empire, and was, in 800, crowned -Roman Emperor by Pope Leo III. Again the whole world seemed to be one -empire, headed by the Emperor as its temporal, and by the Pope as its -spiritual, master, and for an International Law there was therefore no -room and no need. But the Frankish Empire did not last long. According -to the Treaty of Verdun, it was, in 843, divided into three parts, and -with that division the process of development set in, which led -gradually to the rise of the several States of Europe. - -In theory the Emperor of the Germans remained for hundreds of years to -come the master of the world, but in practice he was not even master at -home, as the German Princes step by step succeeded in establishing their -independence. And although theoretically the world was well looked after -by the Emperor as its temporal and the Pope as its spiritual head, there -were constantly treachery, quarrelling, and fighting going on. War -practice was the most cruel possible. It is true that the Pope and the -Bishops succeeded sometimes in mitigating such practice, but as a rule -there was no influence of the Christian teaching visible. - -[Sidenote: The Fifteenth and Sixteenth Centuries.] - -§ 42. The necessity for a Law of Nations did not arise until a -multitude of States absolutely independent of one another had -successfully established themselves. The process of development, -starting from the Treaty of Verdun of 843, reached that climax with the -reign of Frederic III., Emperor of the Germans from 1440 to 1493. He was -the last of the emperors crowned in Rome by the hands of the Popes. At -that time Europe was, in fact, divided up into a great number of -independent States, and thenceforth a law was needed to deal with the -international relations of these Sovereign States. Seven factors of -importance prepared the ground for the growth of principles of a future -International Law. - -(1) There were, first, the Civilians and the Canonists. Roman Law was in -the beginning of the twelfth century brought back to the West through -Irnerius, who taught this law at Bologna. He and the other _glossatores_ -and _post-glossatores_ considered Roman Law the _ratio scripta_, the law -_par excellence_. These Civilians maintained that Roman Law was the law -of the civilised world _ipso facto_ through the emperors of the Germans -being the successors of the emperors of Rome. Their commentaries to the -_Corpus Juris Civilis_ touch upon many questions of the future -International Law which they discuss from the basis of Roman Law. - -The Canonists, on the other hand, whose influence was unshaken till the -time of the Reformation, treated from a moral and ecclesiastical point -of view many questions of the future International Law concerning -war.[35] - -[Footnote 35: See Holland, Studies, pp. 40-58; Walker, History, I. pp. -204-212.] - -(2) There were, secondly, collections of Maritime Law of great -importance which made their appearance in connection with international -trade. From the eighth century the world trade, which had totally -disappeared in consequence of the downfall of the Roman Empire and the -destruction of the old civilisation during the period of the Migration -of the Peoples, began slowly to develop again. The sea trade specially -flourished and fostered the growth of rules and customs of Maritime Law, -which were collected into codes and gained some kind of international -recognition. The more important of these collections are the following: -The _Consolato del Mare_, a private collection made at Barcelona in -Spain in the middle of the fourteenth century; the _Laws of Oléron_, a -collection, made in the twelfth century, of decisions given by the -maritime court of Oléron in France; the _Rhodian Laws_, a very old -collection of maritime laws which probably was put together between the -sixth and the eighth centuries;[36] the _Tabula Amalfitana_, the -maritime laws of the town of Amalfi in Italy, which date at latest from -the tenth century; the _Leges Wisbuenses_, a collection of maritime laws -of Wisby on the island of Gothland, in Sweden, dating from the -fourteenth century. - -[Footnote 36: See Ashburner, "The Rhodian Sea Law" (1909), Introduction, -p. cxii.] - -The growth of international trade caused also the rise of the -controversy regarding the freedom of the high seas (see below, § 248), -which indirectly influenced the growth of an International Law (see -below, §§ 248-250). - -(3) A third factor was the numerous leagues of trading towns for the -protection of their trade and trading citizens. The most celebrated of -these leagues is the Hanseatic, formed in the thirteenth century. These -leagues stipulated for arbitration on controversies between their member -towns. They acquired trading privileges in foreign States. They even -waged war, when necessary, for the protection of their interests. - -(4) A fourth factor was the growing custom on the part of the States of -sending and receiving permanent legations. In the Middle Ages the Pope -alone had a permanent legation at the court of the Frankish kings. -Later, the Italian Republics, as Venice and Florence for instance, were -the first States to send out ambassadors, who took up their residence -for several years in the capitals of the States to which they were sent. -At last, from the end of the fifteenth century, it became a universal -custom for the kings of the different States to keep permanent legations -at one another's capital. The consequence was that an uninterrupted -opportunity was given for discussing and deliberating common -international interests. And since the position of ambassadors in -foreign countries had to be taken into consideration, international -rules concerning inviolability and exterritoriality of foreign envoys -gradually grew up. - -(5) A fifth factor was the custom of the great States of keeping -standing armies, a custom which also dates from the fifteenth century. -The uniform and stern discipline in these armies favoured the rise of -more universal rules and practices of warfare. - -(6) A sixth factor was the Renaissance and the Reformation. The -Renaissance of science and art in the fifteenth century, together with -the resurrection of the knowledge of antiquity, revived the -philosophical and aesthetical ideals of Greek life and transferred them -to modern life. Through their influence the spirit of the Christian -religion took precedence of its letter. The conviction awoke everywhere -that the principles of Christianity ought to unite the Christian world -more than they had done hitherto, and that these principles ought to be -observed in matters international as much as in matters national. The -Reformation, on the other hand, put an end to the spiritual mastership -of the Pope over the civilised world. Protestant States could not -recognise the claim of the Pope to arbitrate as of right in their -conflicts either between one another or between themselves and Catholic -States. - -(7) A seventh factor made its appearance in connection with the schemes -for the establishment of eternal peace which arose from the beginning of -the fourteenth century. Although these schemes were utopian, they -nevertheless must have had great influence by impressing upon the -Princes and the nations of Christendom the necessity for some kind of -organisation of the numerous independent States into a community. The -first of these schemes was that of the French lawyer, Pierre Dubois, -who, as early as 1306, in "De Recuperatione Terre Sancte" proposed an -alliance between all Christian Powers for the purpose of the maintenance -of peace and the establishment of a Permanent Court of Arbitration for -the settlement of differences between the members of the alliance.[37] -Another project arose in 1461, when Podiebrad, King of Bohemia from -1420-1471, adopted the scheme of his Chancellor, Antoine Marini, and -negotiated with foreign courts the foundation of a Federal State to -consist of all the existing Christian States with a permanent Congress, -seated at Basle, of ambassadors of all the member States as the highest -organ of the Federation.[38] A third plan was that of Sully, adopted by -Henri IV. of France, which proposed the division of Europe into fifteen -States and the linking together of these into a federation with a -General Council as its highest organ, consisting of Commissioners -deputed by the member States.[39] A fourth project was that of Émeric -Crucée, who, in 1623, proposed the establishment of a Union consisting -not only of the Christian States but of all States then existing in the -whole of the world, with a General Council as its highest organ, seated -at Venice, and consisting of ambassadors of all the member States of the -Union.[40] - -[Footnote 37: See Meyer, "Die staats- und völkerrechtlichen Ideen von -Pierre Dubois" (1909); Schücking, "Die Organisation der Welt" (1909), -pp. 28-30; Vesnitch, "Deux Précurseurs Français du Pacifism, etc." -(1911), pp. 1-29.] - -[Footnote 38: See Schwitzky, "Der Europaeische Fürstenbund Georg's von -Podiebrad" (1909), and Schücking, "Die Organisation der Welt" (1909), -pp. 32-36.] - -[Footnote 39: See Nys, "Études de Droit International et de Droit -Politique" (1896), pp. 301-306, and Darby, "International Arbitration" -(4th ed. 1904), pp. 10-21.] - -[Footnote 40: See Balch, "Le Nouveau Cynée de Émeric Crucée" (1909); -Darby, "International Arbitration" (4th ed. 1904), pp. 22-33; Vesnitch, -"Deux Précurseurs Français du Pacifism, etc." (1911), pp. 29-54. - -The schemes enumerated in the text are those which were advanced before -the appearance of Grotius's work "De Jure Belli ac Pacis" (1625). The -numerous plans which made their appearance afterwards--that of the -Landgrave of Hesse-Rheinfels, 1666; of Charles, Duke of Lorraine, 1688; -of William Penn, 1693; of John Bellers, 1710; of the Abbé de St. Pierre -(1658-1743); of Kant, 1795; and of others--are all discussed in -Schücking, "Die Organisation der Welt" (1909), and Darby, "International -Arbitration" (4th ed. 1904). They are as utopian as the pre-Grotian -schemes, but they are nevertheless of great importance. They preached -again and again the gospel of the organisation of the Family of Nations, -and although their ideal has not been and can never be realised, they -drew the attention of public opinion to the fact that the international -relations of States should not be based on arbitrariness and anarchy, -but on rules of law and comity. And thereby they have indirectly -influenced the gradual growth of rules of law for these international -relations.] - - -II - -DEVELOPMENT OF THE LAW OF NATIONS AFTER GROTIUS - - Lawrence, §§ 29-53, and Essays, pp. 147-190--Halleck, I. pp. - 12-45--Walker, History, I. pp. 138-202--Taylor, §§ 65-95--Nys, I. - pp. 19-46--Martens, I. §§ 21-33--Fiore, I. Nos. 32-52--Calvo, I. - pp. 32-101--Bonfils, Nos. 87-146--Despagnet, Nos. - 20-27--Mérignhac, I. pp. 43-78--Ullmann, §§ 15-17--Laurent, - "Histoire du Droit des Gens, &c.," 14 vols. (2nd ed. - 1861-1868)--Wheaton, "Histoire des Progrès du Droit des Gens en - Europe" (1841)--Bulmerincq, "Die Systematik des Völkerrechts" - (1858)--Pierantoni, "Storia del diritto internazionale nel secolo - XIX." (1876)--Hosack, "Rise and Growth of the Law of Nations" - (1883), pp. 227-320--Brie, "Die Fortschritte des Völkerrechts seit - dem Wiener Congress" (1890)--Gareis, "Die Fortschritte des - internationalen Rechts im letzten Menschenalter" (1905)--Dupuis, - "Le Principe d'Équilibre et le Concert Européen de la Paix de - Westphalie à l'Acte d'Algésiras" (1909)--Strupp, "Urkunden zur - Geschichte des Völkerrechts," 2 vols. (1911). - -[Sidenote: The time of Grotius.] - -§ 43. The seventeenth century found a multitude of independent States -established and crowded on the comparatively small continent of Europe. -Many interests and aims knitted these States together into a community -of States. International lawlessness was henceforth an impossibility. -This was the reason for the fact that Grotius's work "De Jure Belli ac -Pacis libri III.," which appeared in 1625, won the ear of the different -States, their rulers, and their writers on matters international. Since -a Law of Nations was now a necessity, since many principles of such a -law were already more or less recognised and appeared again among the -doctrines of Grotius, since the system of Grotius supplied a legal basis -to most of those international relations which were at the time -considered as wanting such basis, the book of Grotius obtained such a -world-wide influence that he is correctly styled the "Father of the Law -of Nations." It would be very misleading and in no way congruent with -the facts of history to believe that Grotius's doctrines were as a body -at once universally accepted. No such thing happened, nor could have -happened. What did soon take place was that, whenever an international -question of legal importance arose, Grotius's book was consulted, and -its authority was so overwhelming that in many cases its rules were -considered right. How those rules of Grotius, which have more or less -quickly been recognised by the common consent of the writers on -International Law, have gradually received similar acceptance at the -hands of the Family of Nations is a process of development which in each -single phase cannot be ascertained. It can only be stated that at the -end of the seventeenth century the civilised States considered -themselves bound by a Law of Nations the rules of which were to a great -extent the rules of Grotius. This does not mean that these rules have -from the end of that century never been broken. On the contrary, they -have frequently been broken. But whenever this occurred, the States -concerned maintained either that they did not intend to break these -rules, or that their acts were in harmony with them, or that they were -justified by just causes and circumstances in breaking them. And the -development of the Law of Nations did not come to a standstill with the -reception of the bulk of the rules of Grotius. More and more rules were -gradually required and therefore gradually grew. All the historically -important events and facts of international life from the time of -Grotius down to our own have, on the one hand, given occasion to the -manifestation of the existence of a Law of Nations, and, on the other -hand, in their turn made the Law of Nations constantly and gradually -develop into a more perfect and more complete system of legal rules. - -It serves the purpose to divide the history of the development of the -Law of Nations from the time of Grotius into seven periods--namely, -1648-1721, 1721-1789, 1789-1815, 1815-1856, 1856-1874, 1874-1899, -1899-1911. - -[Sidenote: The period 1648-1721.] - -§ 44. The ending of the Thirty Years' War through the Westphalian Peace -of 1648 is the first event of great importance after the death of -Grotius in 1645. What makes remarkable the meetings of Osnaburg, where -the Protestant Powers met, and Münster, where the Catholic Powers met, -is the fact that there was for the first time in history a European -Congress assembled for the purpose of settling matters international by -common consent of the Powers. With the exception of England, Russia, and -Poland, all the important Christian States were represented at this -congress, as were also the majority of the minor Powers. The -arrangements made by this congress show what a great change had taken -place in the condition of matters international. The Swiss Confederation -and the Netherlands were recognised as independent States. The 355 -different States which belonged to the German Empire were practically, -although not theoretically, recognised as independent States which -formed a Confederation under the Emperor as its head. Of these 355 -States, 150 were secular States governed by hereditary monarchs -(Electors, Dukes, Landgraves, and the like), 62 were free-city States, -and 123 were ecclesiastical States governed by archbishops and other -Church dignitaries. The theory of the unity of the civilised world under -the German Emperor and the Pope as its temporal and spiritual heads -respectively was buried for ever. A multitude of recognised independent -States formed a community on the basis of equality of all its members. -The conception of the European equilibrium[41] made its appearance and -became an implicit principle as a guaranty of the independence of the -members of the Family of Nations. Protestant States took up their -position within this family along with Catholic States, as did republics -along with monarchies. - -[Footnote 41: See below, pp. 64, 65, 80, 193, 307.] - -In the second half of the seventeenth century the policy of conquest -initiated by Louis XIV. of France led to numerous wars. But Louis XIV. -always pleaded a just cause when he made war, and even the establishment -of the ill-famed so-called Chambers of Reunion (1680-1683) was done -under the pretext of law. There was no later period in history in which -the principles of International Law were more frivolously violated, but -the violation was always cloaked by some excuse. Five treaties of peace -between France and other Powers during the reign of Louis XIV. are of -great importance. (1) The Peace of the Pyrenees, which ended in 1659 the -war between France and Spain, who had not come to terms at the -Westphalian Peace. (2) The Peace of Aix-la-Chapelle, which ended in 1668 -another war between France and Spain, commenced in 1667 because France -claimed the Spanish Netherlands from Spain. This peace was forced upon -Louis XIV. through the triple alliance between England, Holland, and -Sweden. (3) The Peace of Nymeguen, which ended in 1678 the war -originally commenced by Louis XIV. in 1672 against Holland, into which -many other European Powers were drawn. (4) The Peace of Ryswick, which -ended in 1697 the war that had existed since 1688 between France on one -side, and, on the other, England, Holland, Denmark, Germany, Spain, and -Savoy. (5) The Peace of Utrecht, 1713, and the Peace of Rastadt and -Baden, 1714, which ended the war of the Spanish Succession that had -lasted since 1701 between France and Spain on the one side, and, on the -other, England, Holland, Portugal, Germany, and Savoy. - -But wars were not only waged between France and other Powers during this -period. The following treaties of peace must therefore be -mentioned:--(1) The Peaces of Roeskild (1658), Oliva (1660), Copenhagen -(also 1660), and Kardis (1661). The contracting Powers were Sweden, -Denmark, Poland, Prussia, and Russia. (2) The Peace of Carlowitz, 1699, -between Turkey, Austria, Poland, and Venice. (3) The Peace of Nystaedt, -1721, between Sweden and Russia under Peter the Great. - -The year 1721 is epoch-making because with the Peace of Nystaedt Russia -enters as a member into the Family of Nations, in which she at once held -the position of a Great Power. The period ended by the year 1721 shows -in many points progressive tendencies regarding the Law of Nations. Thus -the right of visit and search on the part of belligerents over neutral -vessels becomes recognised. The rule "free ships, free goods," rises as -a postulate, although it was not universally recognised till 1856. The -effectiveness of blockades, which were first made use of in war by the -Netherlands at the end of the sixteenth century, rose as a postulate and -became recognised in treaties between Holland and Sweden (1667) and -Holland and England (1674), although its universal recognition was not -realised until the nineteenth century. The freedom of the high seas, -claimed by Grotius and others, began gradually to obtain recognition in -practice, although it did likewise not meet with universal acceptance -till the nineteenth century. The balance of power is solemnly recognised -by the Peace of Utrecht as a principle of the Law of Nations. - -[Sidenote: The period 1721-1789.] - -§ 45. Before the end of the first half of the eighteenth century peace -in Europe was again disturbed. The rivalry between Austria and Prussia, -which had become a kingdom in 1701 and the throne of which Frederick II. -had ascended in 1740, led to several wars in which England, France, -Spain, Bavaria, Saxony, and Holland took part. Several treaties of peace -were successively concluded which tried to keep up or re-establish the -balance of power in Europe. The most important of these treaties are: -(1) The Peace of Aix-la-Chapelle of 1748 between France, England, -Holland, Austria, Prussia, Sardinia, Spain, and Genoa. (2) The Peace of -Hubertsburg and the Peace of Paris, both of 1763, the former between -Prussia, Austria, and Saxony, the latter between England, France, and -Spain. (3) The Peace of Versailles of 1783 between England, the United -States of America, France, and Spain. - -These wars gave occasion to disputes as to the right of neutrals and -belligerents regarding trade in time of war. Prussia became a Great -Power. The so-called First Armed Neutrality[42] made its appearance in -1780 with claims of great importance, which were not generally -recognised till 1856. The United States of America succeeded in -establishing her independence and became a member of the Family of -Nations, whose future attitude fostered the growth of several rules of -International Law. - -[Footnote 42: See below, Vol. II. §§ 289 and 290, where details -concerning the First and Second Armed Neutrality are given.] - -[Sidenote: The period 1789-1815.] - -§ 46. All progress, however, was endangered, and indeed the Law of -Nations seemed partly non-existent, during the time of the French -Revolution and the Napoleonic wars. Although the French Convention -resolved in 1792 (as stated above, § 30) to create a "Declaration of the -Rights of Nations," the Revolutionary Government and afterwards Napoleon -I. very often showed no respect for the rules of the Law of Nations. The -whole order of Europe, which had been built up by the Westphalian and -subsequent treaties of peace for the purpose of maintaining a balance of -power, was overthrown. Napoleon I. was for some time the master of -Europe, Russia and England excepted. He arbitrarily created States and -suppressed them again. He divided existing States into portions and -united separate States. The kings depended upon his goodwill, and they -had to follow orders when he commanded. Especially as regards maritime -International Law, a condition of partial lawlessness arose during this -period. Already in 1793 England and Russia interdicted all navigation -with the ports of France, with the intention of subduing her by famine. -The French Convention answered with an order to the French fleet to -capture all neutral ships carrying provisions to the ports of the enemy -or carrying enemy goods. Again Napoleon, who wanted to ruin England by -destroying her commerce, announced in 1806 in his Berlin Decrees the -boycott of all English goods. England answered with the blockade of all -French ports and all ports of the allies of France, and ordered her -fleet to capture all ships destined to any such port. - -When at last the whole of Europe was mobilised against Napoleon and he -was finally defeated, the whole face of Europe was changed, and the -former order of things could not possibly be restored. It was the task -of the European Congress of Vienna in 1814 and 1815 to create a new -order and a fresh balance of power. This new order comprised chiefly the -following arrangements:--The Prussian and the Austrian monarchies were -re-established, as was also the Germanic Confederation, which consisted -henceforth of thirty-nine member States. A kingdom of the Netherlands -was created out of Holland and Belgium. Norway and Sweden became a Real -Union. The old dynasties were restored in Spain, in Sardinia, in -Tuscany, and in Modena, as was also the Pope in Rome. To the nineteen -cantons of the Swiss Confederation were added those of Geneva, Valais, -and Neuchâtel, and this Confederation was neutralised for all the -future. - -But the Vienna Congress did not only establish a new political order in -Europe, it also settled some questions of International Law. Thus, free -navigation was agreed to on so-called international rivers, which are -rivers navigable from the Open Sea and running through the land of -different States. It was further arranged that henceforth diplomatic -agents should be divided into three classes (Ambassadors, Ministers, -Chargés d'Affaires). Lastly, a universal prohibition of the trade in -negro slaves was agreed upon. - -[Sidenote: The period 1815-1856.] - -§ 47. The period after the Vienna Congress begins with the so-called -Holy Alliance. Already on September 26, 1815, before the second Peace of -Paris, the Emperors of Russia and Austria and the King of Prussia called -this alliance into existence, the object of which was to make it a duty -upon its members to apply the principles of Christian morality in the -administration of the home affairs of their States as well as in the -conduct of their international relations. After the Vienna Congress the -sovereigns of almost all the European States had joined that alliance -with the exception of England. George IV., at that time prince-regent -only, did not join, because the Holy Alliance was an alliance not of the -States, but of sovereigns, and therefore was concluded without the -signatures of the respective responsible Ministers, whereas according -to the English Constitution the signature of such a responsible Minister -would have been necessary. - -The Holy Alliance had not as such any importance for International Law, -for it was a religious, moral, and political, but scarcely a legal -alliance. But at the Congress of Aix-la-Chapelle in 1818, which the -Emperors of Russia and Austria and the King of Prussia attended in -person, and where it might be said that the principles of the Holy -Alliance were practically applied, the Great Powers signed a -Declaration,[43] in which they solemnly recognised the Law of Nations as -the basis of all international relations, and in which they pledged -themselves for all the future to act according to its rules. The leading -principle of their politics was that of legitimacy,[44] as they -endeavoured to preserve everywhere the old dynasties and to protect the -sovereigns of the different countries against revolutionary movements of -their subjects. This led, in fact, to a dangerous neglect of the -principles of International Law regarding intervention. The Great -Powers, with the exception of England, intervened constantly with the -domestic affairs of the minor States in the interest of the legitimate -dynasties and of an anti-liberal legislation. The Congresses at Troppau, -1820, Laibach, 1821, Verona, 1822, occupied themselves with a -deliberation on such interventions. - -[Footnote 43: See Martens, N.R. IV. p. 560.] - -[Footnote 44: See Brockhaus, "Das Legitimitätsprincip" (1868).] - -The famous Monroe Doctrine (see below, § 139) owes its origin to that -dangerous policy of the European Powers as regards intervention, -although this doctrine embraces other points besides intervention. As -from 1810 onwards the Spanish colonies in South America were falling off -from the mother country and declaring their independence, and as Spain -was, after the Vienna Congress, thinking of reconquering these States -with the help of other Powers who upheld the principle of legitimacy, -President Monroe delivered his message on December 2, 1823, which -pointed out amongst other things, that the United States could not allow -the interference of a European Power with the States of the American -continent. - -Different from the intervention of the Powers of the Holy Alliance in -the interest of legitimacy were the two interventions in the interest of -Greece and Belgium. England, France, and Russia intervened in 1827 in -the struggle of Turkey with the Greeks, an intervention which led -finally in 1830 to the independence of Greece. And the Great Powers of -the time, namely, England, Austria, France, Prussia, and Russia, invited -by the provisional Belgian Government, intervened in 1830 in the -struggle of the Dutch with the Belgians and secured the formation of a -separate Kingdom of Belgium. - -It may be maintained that the establishment of Greece and Belgium -inferred the breakdown of the Holy Alliance. But it was not till the -year 1848 that this alliance was totally swept away through the -disappearance of absolutism and the victory of the constitutional system -in most States of Europe. Shortly afterwards, in 1852, Napoleon III., -who adopted the principle of nationality,[45] became Emperor of France. -Since he exercised preponderant influence in Europe, one may say that -this principle of nationality superseded in European politics the -principle of legitimacy. - -[Footnote 45: See Bulmerincq, "Praxis, Theorie und Codification des -Völkerrechts" (1874), pp. 53-70.] - -The last event of this period is the Crimean War, which led to the Peace -as well as to the Declaration of Paris in 1856. This war broke out in -1853 between Russia and Turkey. In 1854, England, France, and Sardinia -joined Turkey, but the war continued nevertheless for another two -years. Finally, however, Russia was defeated, a Congress assembled at -Paris, where England, France, Austria, Russia, Sardinia, Turkey, and -eventually Prussia, were represented, and peace was concluded in March -1856. In the Peace Treaty, Turkey is expressly received as a member into -the Family of Nations. Of greater importance, however, is the celebrated -Declaration of Paris regarding maritime International Law which was -signed on April 16, 1856, by the delegates of the Powers that had taken -part in the Congress. This declaration abolished privateering, -recognised the rules that enemy goods on neutral vessels and that -neutral goods on enemy vessels cannot be confiscated, and stipulated -that a blockade in order to be binding must be effective. Together with -the fact that at the end of the first quarter of the nineteenth century -the principle of the freedom of the high seas[46] became universally -recognised, the Declaration of Paris is a prominent landmark in the -progress of the Law of Nations. The Powers that had not been represented -at the Congress of Paris were invited to sign the Declaration -afterwards, and the majority of the members of the Family of Nations did -sign it before the end of the year 1856. The few States, such as the -United States of America, Spain, Mexico, and others, which did not then -sign,[47] have in practice since 1856 not acted in opposition to the -Declaration, and one may therefore, perhaps, maintain that the -Declaration of Paris has already become or will soon become universal -International Law through custom. Spain and Mexico, however, signed the -Declaration in 1907, as Japan had already done in 1886. - -[Footnote 46: See below, § 251.] - -[Footnote 47: It should be mentioned that the United States did not sign -the Declaration of Paris because it did not go far enough, and did not -interdict capture of private enemy vessels.] - -[Sidenote: The period 1856-1874.] - -§ 48. The next period, the time from 1856 to 1874, is of prominent -importance for the development of the Law of Nations. Under the aegis of -the principle of nationality, Austria turns in 1867 into the dual -monarchy of Austria-Hungary, and Italy as well as Germany becomes -united. The unity of Italy rises out of the war of France and Sardinia -against Austria in 1859, and Italy ranges henceforth among the Great -Powers of Europe. The unity of Germany is the combined result of three -wars: that of Austria and Prussia in 1864 against Denmark on account of -Schleswig-Holstein, that of Prussia and Italy against Austria in 1866, -and that of Prussia and the allied South German States against France in -1870. The defeat of France in 1870 had the consequence that Italy took -possession of the Papal States, whereby the Pope disappeared from the -number of governing sovereigns. - -The United States of America rise through the successful termination of -the Civil War in 1865 to the position of a Great Power. Several rules of -maritime International Law owe their further development to this war. -And the instructions concerning warfare on land, published in 1863 by -the Government of the United States, represent the first step towards -codification of the Laws of War. In 1864, the Geneva Convention for the -amelioration of the condition of soldiers wounded in armies in the field -is, on the initiation of Switzerland, concluded by nine States, and in -time almost all civilised States became parties to it. In 1868, the -Declaration of St. Petersburg, interdicting the employment in war of -explosive balls below a certain weight, is signed by many States. Since -Russia in 1870 had arbitrarily shaken off the restrictions of Article 11 -of the Peace Treaty of Paris of 1856 neutralising the Black Sea, the -Conference of London, which met in 1871 and was attended by the -representatives of the Powers which were parties to the Peace of Paris -of 1856, solemnly proclaimed "that it is an essential principle of the -Law of Nations that no Power can liberate itself from the engagements of -a treaty, or modify the stipulations thereof, unless with the consent of -the contracting Powers by means of an amicable arrangement." The last -event in this period is the Conference of Brussels of 1874 for the -codification of the rules and usages of war on land. Although the signed -code was never ratified, the Brussels Conference was nevertheless -epoch-making, since it showed the readiness of the Powers to come to an -understanding regarding such a code. - -[Sidenote: The period 1874-1899.] - -§ 49. After 1874 the principle of nationality continues to exercise its -influence as before. Under its aegis takes place the partial decay of -the Ottoman Empire. The refusal of Turkey to introduce reforms regarding -the Balkan population led in 1877 to war between Turkey and Russia, -which was ended in 1878 by the peace of San Stefano. As the conditions -of this treaty would practically have done away with Turkey in Europe, -England intervened and a European Congress assembled at Berlin in June -1878 which modified materially the conditions of the Peace of San -Stefano. The chief results of the Berlin Congress are:--(1) Servia, -Roumania, Montenegro become independent and Sovereign States; (2) -Bulgaria becomes an independent principality under Turkish suzerainty; -(3) the Turkish provinces of Bosnia and Herzegovina come under the -administration of Austria-Hungary; (4) a new province under the name of -Eastern Rumelia is created in Turkey and is to enjoy great local -autonomy (according to an arrangement of the Conference of -Constantinople in 1885-1886 a bond is created between Eastern Rumelia -and Bulgaria by the appointment of the Prince of Bulgaria as governor of -Eastern Rumelia); (5) free navigation on the Danube from the Iron Gates -to its mouth in the Black Sea is proclaimed. - -In 1889 Brazil becomes a Republic and a Federal State (the United States -of Brazil). In the same year the first Pan-American Congress meets at -Washington. - -In 1897 Crete revolts against Turkey, war breaks out between Greece and -Turkey, the Powers interfere, and peace is concluded at Constantinople. -Crete becomes an autonomous half-Sovereign State under Turkish -suzerainty with Prince George of Greece as governor, who, however, -retires in 1906. - -In the Far East war breaks out in 1894 between China and Japan, on -account of Korea. China is defeated, and peace is concluded in 1895 at -Shimonoseki.[48] Japan henceforth ranks as a Great Power. That she must -now be considered a full member of the Family of Nations becomes -apparent from the treaties concluded soon afterwards by her with other -Powers for the purpose of abolishing their consular jurisdiction within -the boundaries of Japan. - -[Footnote 48: See Martens, N.R.G. 2nd Ser. XXI. (1897), p. 641.] - -In America the United States intervene in 1898 in the revolt of Cuba -against the motherland, whereby war breaks out between Spain and the -United States. The defeat of Spain secures the independence of Cuba -through the Peace of Paris[49] of 1898. The United States acquires Porto -Rico and other Spanish West Indian Islands, and, further, the Philippine -Islands, whereby she becomes a colonial Power. - -[Footnote 49: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 74.] - -An event of great importance during this period is the Congo Conference -of Berlin, which took place in 1884-1885, and at which England, Germany, -Austria-Hungary, Belgium, Denmark, Spain, the United States of America, -France, Italy, Holland, Portugal, Russia, Sweden-Norway, and Turkey were -represented. This conference stipulated freedom of commerce, -interdiction of slave-trade, and neutralisation of the territories in -the Congo district, and secured freedom of navigation on the rivers -Congo and Niger. The so-called Congo Free State was recognised as a -member of the Family of Nations. - -A second fact of great importance during this period is the movement -towards the conclusion of international agreements concerning matters of -international administration. This movement finds expression in the -establishment of numerous International Unions with special -International Offices. Thus a Universal Telegraphic Union is established -in 1875, a Universal Postal Union in 1878, a Union for the Protection of -Industrial Property in 1883, a Union for the Protection of Works of -Literature and Art in 1886, a Union for the Publication of Custom -Tariffs in 1890. There were also concluded conventions concerning:--(1) -Private International Law (1900 and 1902); (2) railway transports and -freights (1890); (3) the metric system (1875); (4) phylloxera epidemics -(1878 and 1881); (5) cholera and plague epidemics (1893, 1896, &c.); (6) -Monetary Unions (1865, 1878, 1885, 1892, 1893). - -A third fact of great importance is that in this period a tendency -arises to settle international conflicts more frequently than in former -times by arbitration. Numerous arbitrations are actually taking place, -and several treaties are concluded between different States stipulating -the settlement by arbitration of all conflicts which might arise in -future between the contracting parties. - -The last fact of great importance which is epoch-making for this period -is the Peace Conference of the Hague of 1899. This Conference produces, -apart from three Declarations of minor importance, a Convention for the -Pacific Settlement of International Conflicts, a Convention regarding -the Laws and Customs of War on Land, and a Convention for the Adaptation -to Maritime Warfare of the Principles of the Geneva Convention. It also -formulates, among others, the three wishes (1) that a conference should -in the near future regulate the rights and duties of neutrals, (2) that -a future conference should contemplate the declaration of the -inviolability of private property in naval warfare, (3) that a future -conference should settle the question of the bombardment of ports, -towns, and villages by naval forces. - -[Sidenote: The Twentieth Century.] - -§ 50. Soon after the Hague Peace Conference, in October 1899, war breaks -out in South Africa between Great Britain and the two Boer Republics, -which leads to the latter's subjugation at the end of 1901. The -assassination on June 10, 1900, of the German Minister and the general -attack on the foreign legations at Peking necessitate united action of -the Powers against China for the purpose of vindicating this violation -of the fundamental rules of the Laws of Nations. Friendly relations are, -however, re-established with China on her submitting to the conditions -enumerated in the Final Protocol of Peking,[50] signed on September 7, -1901. In December 1902 Great Britain, Germany, and Italy institute a -blockade of the coast of Venezuela for the purpose of making her comply -with their demands for the indemnification of their subjects wronged -during civil wars in Venezuela, and the latter consents to pay -indemnities to be settled by a mixed commission of diplomatists.[51] As, -however, Powers other than those blockading likewise claim indemnities, -the matter is referred to the Permanent Court of Arbitration at the -Hague, which in 1904 gives its award[52] in favour of the blockading -Powers. In February 1904 war breaks out between Japan and Russia on -account of Manchuria and Korea. Russia is defeated, and peace is -concluded through the mediation of the United States of America, on -September 5, 1905, at Portsmouth.[53] Korea, now freed from the -influence of Russia, places herself by the Treaty of Seoul[54] of -November 17, 1905, under the protectorate of Japan. Five years later, -however, by the Treaty of Seoul[55] of August 22, 1910, she merges -entirely into Japan. - -[Footnote 50: See Martens, N.R.G. 2nd Ser. XXXII. p. 94.] - -[Footnote 51: See Martens, N.R.G. 3rd Ser. I. p. 46.] - -[Footnote 52: See Martens, N.R.G. 3rd Ser. I. p. 57.] - -[Footnote 53: See Martens, N.R.G. 2nd Ser. XXXIII. p. 3.] - -[Footnote 54: See Martens, N.R.G. 2nd Ser. XXXIV. p. 727.] - -[Footnote 55: See Martens, N.R.G. 3rd Ser. IV. p. 24.] - -The Real Union between Norway and Sweden, which was established by the -Vienna Congress in 1815, is peacefully dissolved by the Treaty of -Karlstad[56] of October 26, 1905. Norway becomes a separate kingdom -under Prince Charles of Denmark, who takes the name of Haakon VIII., and -Great Britain, Germany, Russia, and France guarantee by the Treaty of -Christiania[57] of November 2, 1907, the integrity of Norway on -condition that she would not cede any part of her territory to any -foreign Power. - -[Footnote 56: See Martens, N.R.G. 2nd Ser. XXXIV. p. 700.] - -[Footnote 57: See Martens, N.R.G. 3rd Ser. II. p. 9, and below, § 574.] - -The rivalry between France and Germany--the latter protesting against -the position conceded to France in Morocco by the Anglo-French agreement -signed at London on April 8, 1904--leads in January 1906 to the -Conference of Algeciras, in which Great Britain, France, Germany, -Belgium, Holland, Italy, Austria-Hungary, Portugal, Russia, Sweden, -Spain, and the United States of America take part, and where on April 7, -1906, the General Act of the International Conference of Algeciras[58] -is signed. This Act, which recognises, on the one hand, the independence -and integrity of Morocco, and, on the other, equal commercial facilities -for all nations in that country, contains:--(1) A declaration concerning -the organisation of the Moroccan police; (2) regulations concerning the -detection and suppression of the illicit trade in arms; (3) an Act of -concession for a Moorish State Bank; (4) a declaration concerning an -improved yield of the taxes and the creation of new sources of revenue; -(5) regulations respecting customs and the suppression of fraud and -smuggling; (6) a declaration concerning the public services and public -works. But it would seem that this Act has not produced a condition of -affairs of any permanency. Since, in 1911, internal disturbances in -Morocco led to military action on the part of France and Spain, Germany, -in July of the same year, sent a man-of-war to the port of Agadir. Thus -the Moroccan question has been reopened, and fresh negotiations for its -settlement are taking place between the Powers.[59] - -[Footnote 58: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.] - -[Footnote 59: It should be mentioned that by the Treaty of London of -December 13, 1906, Great Britain, France, and Italy agree to co-operate -in maintaining the independence and integrity of Abyssinia; see Martens, -N.R.G. 2nd Ser. XXXV. p. 556.] - -Two events of importance occur in 1908. The first is the merging of the -Congo Free State[60] into Belgium, which annexation is not as yet -recognised by all the Powers. The other is the crisis in the Near East -caused by the ascendency of the so-called Young Turks and the -introduction of a constitution in Turkey. Simultaneously on October 5, -1908, Bulgaria declares herself independent, and Austria-Hungary -proclaims her sovereignty over Bosnia and Herzegovina, which two Turkish -provinces had been under her administration since 1878. This violation -of the Treaty of Berlin considerably endangers the peace of the world, -and an international conference is proposed for the purpose of -reconsidering the settlement of the Near Eastern question. -Austria-Hungary, however, does not consent to this, but prefers to -negotiate with Turkey alone in the matter, and a Protocol is signed by -the two Powers on February 26, 1909, according to which Turkey receives -a substantial indemnity in money and other concessions. Austria-Hungary -negotiates likewise with Montenegro alone, and consents to the -modifications in Article 29 of the Treaty of Berlin concerning the -harbour of Antivary, which is to be freed from Austria-Hungarian control -and is henceforth to be open to warships of all nations. Whereupon the -demand for an international conference is abandoned and the Powers -notify on April 7, 1909, their consent to the abolition of Article 25 -and the amendment of Article 29 of the Treaty of Berlin.[61] - -[Footnote 60: See Martens, N.R.G. 3rd Ser. II. p. 101.] - -[Footnote 61: See Martens, N.R.G. 3rd Ser. II. p. 606.] - -In 1910 Portugal becomes a Republic; but the Powers, although they enter -provisionally into communication with the _de facto_ government, do not -recognise the Republic until September 1911, after the National Assembly -adopted the republican form of government. - -In September 1911 war breaks out between Italy and Turkey, on account of -the alleged maltreatment of Italian subjects in Tripoli. - -International Law as a body of rules for the international conduct of -States makes steady progress during this period. This is evidenced by -congresses, conferences, and law-making treaties. Of conferences and -congresses must be mentioned the second, third, and fourth Pan-American -Congresses,[62] which take place at Mexico in 1901, at Rio in 1906, and -at Buenos Ayres in 1910. Although the law-making treaties of these -congresses have not found ratification, their importance cannot be -denied. Further, in 1906 a conference assembles in Geneva for the -purpose of revising the Geneva Convention of 1864 concerning the wounded -in land warfare, and on July 6, 1906, the new Geneva[63] Convention is -signed. Of the greatest importance, however, are the second Hague Peace -Conference of 1907 and the Naval Conference of London of 1898-9. - -[Footnote 62: See Moore, VI. § 969; Fried, "Pan-America" (1910); -Barrett, "The Pan-American Union" (1911).] - -[Footnote 63: See Martens, N.R.G. 3rd Ser. II. p. 323.] - -The second Peace Conference assembles at the Hague on June 15, 1907. -Whereas at the first there were only 26 States represented, 44 are -represented at the second Peace Conference. The result of this -Conference is contained in its Final Act,[64] which is signed on October -18, 1907, and embodies no fewer than thirteen law-making Conventions -besides a declaration of minor importance. Of these Conventions, 1, 4, -and 10 are mere revisions of Conventions agreed upon at the first Peace -Conference of 1899, but the others are new and concern:--The employment -of force for the recovery of contract debts (2); the commencement of -hostilities (3); the rights and duties of neutrals in land warfare (5); -the status of enemy merchant-ships at the outbreak of hostilities (6); -the conversion of merchantmen into men-of-war (7); the laying of -submarine mines (8); the bombardment by naval forces (9); restrictions -of the right of capture in maritime war (11); the establishment of an -International Prize Court (12); the rights and duties of neutrals in -maritime war (13). - -[Footnote 64: See Martens, N.R.G. 3rd Ser. III. p. 323.] - -The Naval Conference of London assembles on December 4, 1908, for the -purpose of discussing the possibility of creating a code of prize law -without which the International Prize Court, agreed upon at the second -Hague Peace Conference, could not be established, and produces the -Declaration of London, signed on February 26, 1909. This Declaration -contains 71 articles, and settles in nine chapters the law -concerning:--(1) Blockade; (2) contraband; (3) un-neutral service; (4) -destruction of neutral prizes; (5) transfer to a neutral flag; (6) enemy -character; (7) convoy; (8) resistance to search; and (9) compensation. -The Declaration is accompanied by a General Report on its stipulations -which is intended to serve as an official commentary. - -The movement which began in the last half of the nineteenth century -towards the conclusion of international agreements concerning matters of -international administration, develops favourably during this period. -The following conventions are the outcome of this movement:--(1) -Concerning the preservation of wild animals, birds, and fish in Africa -(1900); (2) concerning international hydrographic and biological -investigations in the North Sea (1901); (3) concerning protection of -birds useful for agriculture (1902); (4) concerning the production of -sugar (1902); (5) concerning the White Slave traffic (1904); (6) -concerning the establishment of an International Agricultural Institute -at Rome (1905); (7) concerning unification of the Pharmacopoeial -Formulas (1906); (8) concerning the prohibition of the use of white -phosphorus (1906); (9) concerning the prohibition of night work for -women (1906); (10) concerning the international circulation of motor -vehicles (1909). - -It is, lastly, of the greatest importance to mention that the so-called -peace movement,[65] which aims at the settlement of all international -disputes by arbitration or judicial decision of an International Court, -gains considerable influence over the Governments and public opinion -everywhere since the first Hague Peace Conference. A great number of -arbitration treaties are agreed upon, and the Permanent Court of -Arbitration established at the Hague gives its first award[66] in a case -in 1902 and its ninth in 1911. The influence of these decisions upon the -peaceful settlement of international differences generally is enormous, -and it may confidently be expected that the third Hague Peace Conference -will make arbitration obligatory for some of the matters which do not -concern the vital interests, the honour, and the independence of the -States. It is a hopeful sign that, whereas most of the existing -arbitration treaties exempt conflicts which concern the vital -interests, the honour, and the independence, Argentina and Chili in -1902, Denmark and Holland in 1903, Denmark and Italy in 1905, Denmark -and Portugal in 1907, Argentina and Italy in 1907, the Central American -Republics of Costa Rica, Guatemala, Honduras, Nicaragua, and San -Salvador in 1907, Italy and Holland in 1907, entered into general -arbitration treaties according to which all differences, without any -exception, shall be settled by arbitration.[67] - -[Footnote 65: See Fried, "Handbuch der Friedensbewegung," 2nd ed., 2 -vols. (1911).] - -[Footnote 66: See below, § 476.] - -[Footnote 67: The general arbitration treaties concluded in August 1911 -by the United States with Great Britain and France have not yet been -ratified, as the consent of the American Senate is previously required.] - -[Sidenote: Six Lessons of the History of the Law of Nations.] - -§ 51. It is the task of history, not only to show how things have grown -in the past, but also to extract a moral for the future out of the -events of the past. Six morals can be said to be deduced from the -history of the development of the Law of Nations: - -(1) The first and principal moral is that a Law of Nations can exist -only if there be an equilibrium, a balance of power, between the members -of the Family of Nations. If the Powers cannot keep one another in -check, no rules of law will have any force, since an over-powerful State -will naturally try to act according to discretion and disobey the law. -As there is not and never can be a central political authority above the -Sovereign States that could enforce the rules of the Law of Nations, a -balance of power must prevent any member of the Family of Nations from -becoming omnipotent. The history of the times of Louis XIV. and Napoleon -I. shows clearly the soundness of this principle.[68] - -[Footnote 68: Attention ought to be drawn to the fact that, although the -necessity of a balance of power is generally recognised, there are some -writers of great authority who vigorously oppose this principle, as, for -instance, Bulmerincq, "Praxis, Theorie und Codification des -Völkerrechts" (1874), pp. 40-50. On the principle itself see Donnadieu, -"Essai sur la Théorie de l'Équilibre" (1900), and Dupuis, "Le Principe -d'Équilibre et de Concert Européen" (1909).] - -(2) The second moral is that International Law can develop progressively -only when international politics, especially intervention, are made on -the basis of real State interests. Dynastic wars belong to the past, as -do interventions in favour of legitimacy. It is neither to be feared, -nor to be hoped, that they should occur again in the future. But if they -did, they would hamper the development of the Law of Nations in the -future as they have done in the past. - -(3) The third moral is that the principle of nationality is of such -force that it is fruitless to try to stop its victory. Wherever a -community of many millions of individuals, who are bound together by the -same blood, language, and interests, become so powerful that they think -it necessary to have a State of their own, in which they can live -according to their own ideals and can build up a national civilisation, -they will certainly get that State sooner or later. What international -politics can, and should, do is to enforce the rule that minorities of -individuals of another race shall not be outside the law, but shall be -treated on equal terms with the majority. States embracing a population -of several nationalities can exist and will always exist, as many -examples show. - -(4) The fourth moral is that every progress in the development of -International Law wants due time to ripen. Although one must hope that -the time will come when war will entirely disappear, there is no -possibility of seeing this hope realised in our time. The first -necessities of an eternal peace are that the surface of the earth should -be shared between States of the same standard of civilisation, and that -the moral ideas of the governing classes in all the States of the world -should undergo such an alteration and progressive development as would -create the conviction that arbitral awards and decisions of courts of -justice are alone adequate means for the settlement of international -differences. Eternal peace is an ideal, and in the very term "ideal" is -involved the conviction of the impossibility of its realisation in the -present, although it is a duty to aim constantly at such realisation. -The Permanent Court of Arbitration at the Hague, now established by the -Hague Peace Conference of 1899, is an institution that can bring us -nearer to such realisation than ever could have been hoped. And -codification of parts of the Law of Nations, following the codification -of the rules regarding land warfare and the codification comprised in -the Declaration of London, will in due time arrive, and will make the -legal basis of international intercourse firmer, broader, and more -manifest than before.[69] - -[Footnote 69: See Oppenheim, "Die Zukunft des Völkerrechts" (1911) where -some progressive steps are discussed which the future may realise.] - -(5) The fifth moral is that the progress of International Law depends to -a great extent upon whether the legal school of International Jurists -prevails over the diplomatic school.[70] The legal school desires -International Law to develop more or less on the lines of Municipal Law, -aiming at the codification of firm, decisive, and unequivocal rules of -International Law, and working for the establishment of international -Courts for the purpose of the administration of international justice. -The diplomatic school, on the other hand, considers International Law to -be, and prefers it to remain, rather a body of elastic principles than -of firm and precise rules. The diplomatic school opposes the -establishment of international Courts because it considers diplomatic -settlement of international disputes, and failing this arbitration, -preferable to international administration of justice by international -Courts composed of permanently appointed judges. There is, however, no -doubt that international Courts are urgently needed, and that the rules -of International Law require now such an authoritative interpretation -and administration as only an international Court can supply. - -[Footnote 70: I name these schools "diplomatic" and "legal" for want of -better denomination. They must, however, not be confounded with the -three schools of the "Naturalists," "Positivists," and "Grotians," -details concerning which will be given below, §§ 55-57.] - -(6) The sixth, and last, moral is that the progressive development of -International Law depends chiefly upon the standard of public morality -on the one hand, and, on the other, upon economic interests. The higher -the standard of public morality rises, the more will International Law -progress. And the more important international economic interests grow, -the more International Law will grow. For, looked upon from a certain -stand-point, International Law is, just like Municipal Law, a product of -moral and of economic factors, and at the same time the basis for a -favourable development of moral and economic interests. This being an -indisputable fact, it may, therefore, fearlessly be maintained that an -immeasurable progress is guaranteed to International Law, since there -are eternal moral and economic factors working in its favour. - - -III - -THE SCIENCE OF THE LAW OF NATIONS - - Phillimore, I., Preface to the first edition--Lawrence, §§ - 31-36--Manning, pp. 21-65--Halleck, I. pp. 12, 15, 18, 22, 25, 29, - 34, 42--Walker, History, I. pp. 203-337, and "The Science of - International Law" (1893), _passim_--Taylor, §§ 37-48--Wheaton, §§ - 4-13--Rivier in Holtzendorff, I. pp. 337-475--Nys, I. pp. - 213-328--Martens, I. §§ 34-38--Fiore, I. Nos. 53-88, 164-185, - 240-272--Calvo, I. pp. 27-34, 44-46, 51-55, 61-63, 70-73, - 101-137--Bonfils, Nos. 147-153--Despagnet, Nos. 28-35--Ullmann, § - 18--Kaltenborn, "Die Vorläufer des Hugo Grotius" (1848)--Holland, - Studies, pp. 1-58, 168-175--Westlake, Chapters, pp. 23-77--Ward, - "Enquiry into the Foundation and History of the Law of Nations," 2 - vols. (1795)--Nys, "Le droit de la guerre et les précurseurs de - Grotius" (1882), "Notes pour servir à l'histoire ... du droit - international en Angleterre" (1888), "Les origines du droit - international" (1894)--Wheaton, "Histoire des progrès du droit des - gens en Europe" (1841)--Oppenheim in A.J. I. (1908), pp. - 313-356--Pollock in the Cambridge Modern History, vol. XII. - (1910), pp. 703-729--See also the bibliographies enumerated below - in § 61. - -[Sidenote: Forerunners of Grotius.] - -§ 52. The science of the modern Law of Nations commences from Grotius's -work, "De Jure Belli ac Pacis libri III.," because in it a fairly -complete system of International Law was for the first time built up as -an independent branch of the science of law. But there were many writers -before Grotius who wrote on special parts of the Law of Nations. They -are therefore commonly called "Forerunners of Grotius." The most -important of these forerunners are the following: (1) Legnano, Professor -of Law in the University of Bologna, who wrote in 1360 his book "De -bello, de represaliis, et de duello," which was, however, not printed -before 1477; (2) Belli, an Italian jurist and statesman, who published -in 1563 his book, "De re militari et de bello"; (3) Brunus, a German -jurist, who published in 1548 his book, "De legationibus"; (4) Victoria, -Professor in the University of Salamanca, who published in 1557 his -"Relectiones theologicae,"[71] which partly deals with the Law of War; -(5) Ayala, of Spanish descent but born in Antwerp, a military judge in -the army of Alexandro Farnese, the Prince of Parma. He published in 1582 -his book, "De jure et officiis bellicis et disciplina militari"; (6) -Suarez, a Spanish Jesuit and Professor at Coimbra, who published in 1612 -his "Tractatus de legibus et de legislatore," in which (II. c. 19, n. 8) -for the first time the attempt is made to found a law between the States -on the fact that they form a community of States; (7) Gentilis -(1552-1608), an Italian jurist, who became Professor of Civil Law in -Oxford. He published in 1585 his work, "De legationibus," in 1588 and -1589 his "Commentationes de jure belli," and in 1598 an enlarged work on -the same matter under the title "De jure belli libri tres."[72] His -"Advocatio Hispanica" was edited, after his death, in 1613 by his -brother Scipio. Gentilis's book "De jure belli" supplies, as Professor -Holland shows, the model and the framework of the first and third book -of Grotius's "De Jure Belli ac Pacis." "The first step"--Holland rightly -says--"towards making International Law what it is was taken, not by -Grotius, but by Gentilis." - -[Footnote 71: See details in Holland, Studies, pp. 51-52.] - -[Footnote 72: Re-edited in 1877 by Professor Holland. On Gentilis, see -Holland, Studies, pp. 1-391; Westlake, Chapters, pp. 33-36; Walker, -History, I. pp. 249-277; Thamm, "Albericus Gentilis und seine Bedeutung -für das Völkerrecht" (1896); Phillipson in _The Journal of the Society -of Comparative Legislation_, New Series, XII. (1912), pp. 52-80; Balch -in A.J. V. (1911), pp. 665-679.] - -[Sidenote: Grotius.] - -§ 53. Although Grotius owes much to Gentilis, he is nevertheless the -greater of the two and bears by right the title of "Father of the Law of -Nations." Hugo Grotius was born at Delft in Holland in 1583. He was from -his earliest childhood known as a "wondrous child" on account of his -marvellous intellectual gifts and talents. He began to study law at -Leyden when only eleven years old, and at the age of fifteen he took the -degree of Doctor of Laws at Orleans in France. He acquired a reputation, -not only as a jurist, but also as a Latin poet and a philologist. He -first practised as a lawyer, but afterwards took to politics and became -involved in political and religious quarrels which led to his arrest in -1618 and condemnation to prison for life. In 1621, however, he succeeded -in escaping from prison and went to live for ten years in France. In -1634 he entered into the service of Sweden and became Swedish Minister -in Paris. He died in 1645 at Rostock in Germany on his way home from -Sweden, whither he had gone to tender his resignation. - -Even before he had the intention of writing a book on the Law of Nations -Grotius took an interest in matters international. For in 1609, when -only twenty-four years old, he published--anonymously at first--a short -treatise under the title "Mare liberum," in which he contended that the -open sea could not be the property of any State, whereas the contrary -opinion was generally prevalent.[73] But it was not until fourteen -years later that Grotius began, during his exile in France, to write -his "De Jure Belli ac Pacis libri III.," which was published, after a -further two years, in 1625, and of which it has rightly been maintained -that no other book, with the single exception of the Bible, has ever -exercised a similar influence upon human minds and matters. The whole -development of the modern Law of Nations itself, as well as that of the -science of the Law of Nations, takes root from this for ever famous -book. Grotius's intention was originally to write a treatise on the Law -of War, since the cruelties and lawlessness of warfare of his time -incited him to the work. But thorough investigation into the matter led -him further, and thus he produced a system of the Law of Nature and -Nations. In the introduction he speaks of many of the authors before -him, and he especially quotes Ayala and Gentilis. Yet, although he -recognises their influence upon his work, he is nevertheless aware that -his system is fundamentally different from those of his forerunners. -There was in truth nothing original in Grotius's start from the Law of -Nature for the purpose of deducing therefrom rules of a Law of Nations. -Other writers before his time, and in especial Gentilis, had founded -their works upon it. But nobody before him had done it in such a -masterly way and with such a felicitous hand. And it is on this account -that Grotius bears not only, as already mentioned, the title of "Father -of the Law of Nations," but also that of "Father of the Law of Nature." - -[Footnote 73: See details with regard to the controversy concerning the -freedom of the open sea below, §§ 248-250. Grotius's treatise "Mare -liberum" is--as we know now--the twelfth chapter of the work "De jure -praedae," written in 1604 but never published by Grotius; it was not -printed till 1868. See below, § 250.] - -Grotius, as a child of his time, could not help starting from the Law of -Nature, since his intention was to find such rules of a Law of Nations -as were eternal, unchangeable, and independent of the special consent of -the single States. Long before Grotius, the opinion was generally -prevalent that above the positive law, which had grown up by custom or -by legislation of a State, there was in existence another law which had -its roots in human reason and which could therefore be discovered -without any knowledge of positive law. This law of reason was called Law -of Nature or Natural Law. But the system of the Law of Nature which -Grotius built up and from which he started when he commenced to build up -the Law of Nations, became the most important and gained the greatest -influence, so that Grotius appeared to posterity as the Father of the -Law of Nature as well as that of the Law of Nations. - -Whatever we may nowadays think of this Law of Nature, the fact remains -unshaken that for more than two hundred years after Grotius jurists, -philosophers, and theologians firmly believed in it. And there is no -doubt that, but for the systems of the Law of Nature and the doctrines -of its prophets, the modern Constitutional Law and the modern Law of -Nations would not be what they actually are. The Law of Nature supplied -the crutches with whose help history has taught mankind to walk out of -the institutions of the Middle Ages into those of modern times. The -modern Law of Nations in especial owes its very existence[74] to the -theory of the Law of Nature. Grotius did not deny that there existed in -his time already a good many customary rules for the international -conduct of the States, but he expressly kept them apart from those rules -which he considered the outcome of the Law of Nature. He distinguishes, -therefore, between the _natural_ Law of Nations on the one hand, and, on -the other hand, the _customary_ Law of Nations, which he calls the -_voluntary_ Law of Nations. The bulk of Grotius's interest is -concentrated upon the natural Law of Nations, since he considered the -voluntary of minor importance. But nevertheless he does not quite -neglect the voluntary Law of Nations. Although he mainly and chiefly -lays down the rules of the natural Law of Nations, he always mentions -also voluntary rules concerning the different matters. - -[Footnote 74: See Pollock in _The Journal of the Society of Comparative -Legislation_, New Series, III. (1901), p. 206.] - -Grotius's influence was soon enormous and reached over the whole of -Europe. His book[75] went through more than forty-five editions, and -many translations have been published. - -[Footnote 75: See Rivier in Holtzendorff, I. p. 412. The last English -translation is that of 1854 by William Whewell.] - -[Sidenote: Zouche.] - -§ 54. But the modern Law of Nations has another, though minor, founder -besides Grotius, and this is an Englishman, Richard Zouche[76] -(1590-1660), Professor of Civil Law at Oxford and a Judge of the -Admiralty Court. A prolific writer, the book through which he acquired -the title of "Second founder of the Law of Nations," appeared in 1650 -and bears the title: "Juris et judicii fecialis, sive juris inter -gentes, et quaestionum de eodem explicatio, qua, quae ad pacem et bellum -inter diversos principes aut populos spectant, ex praecipuis historico -jure peritis exhibentur." This little book has rightly been called the -first manual of the _positive_ Law of Nations. The standpoint of Zouche -is totally different from that of Grotius in so far as, according to -him, the customary Law of Nations is the most important part of that -law, although, as a child of his time, he does not at all deny the -existence of a natural Law of Nations. It must be specially mentioned -that Zouche is the first who used the term _jus inter gentes_ for that -new branch of law. Grotius knew very well and says that the Law of -Nations is a law _between_ the States, but he called it _jus gentium_, -and it is due to his influence that until Bentham nobody called the Law -of Nations _Inter_national Law. - -[Footnote 76: See Phillipson in _The Journal of the Society of -Comparative Legislation_, New Series, IX. (1908), pp. 281-304.] - -The distinction between the natural Law of Nations, chiefly treated by -Grotius, and the customary or voluntary Law of Nations, chiefly treated -by Zouche,[77] gave rise in the seventeenth and eighteenth centuries to -three different schools[78] of writers on the Law of Nations--namely, -the "Naturalists," the "Positivists," and the "Grotians." - -[Footnote 77: It should be mentioned that already before Zouche, another -Englishman, John Selden, in his "De jure naturali et gentium secundum -disciplinam ebraeorum" (1640), recognised the importance of the positive -Law of Nations. The successor of Zouche as a Judge of the Admiralty -Court, Sir Leoline Jenkins (1625-1684), ought also to be mentioned. His -opinions concerning questions of maritime law, and in especial prize -law, were of the greatest importance for the development of maritime -international law. See Wynne, "Life of Sir Leoline Jenkins," 2 vols. -(1740).] - -[Footnote 78: These three schools of writers must not be confounded with -the division of the present international jurists into the diplomatic -and legal schools; see above, § 51, No. 5.] - -[Sidenote: The Naturalists.] - -§ 55. "Naturalists," or "Deniers of the Law of Nations," is the -appellation of those writers who deny that there is any positive Law of -Nations whatever as the outcome of custom or treaties, and who maintain -that all Law of Nations is only a part of the Law of Nature. The leader -of the Naturalists is Samuel Pufendorf (1632-1694), who occupied the -first chair which was founded for the Law of Nature and Nations at a -University--namely, that at Heidelberg. Among the many books written by -Pufendorf, three are of importance for the science of International -Law:--(1) "Elementa jurisprudentiae universalis," 1666; (2) "De jure -naturae et gentium," 1672; (3) "De officio hominis et civis juxta legem -naturalem," 1673. Starting from the assertion of Hobbes, "De Cive," XIV. -4, that Natural Law is to be divided into Natural Law of individuals and -of States, and that the latter is the Law of Nations, Pufendorf[79] adds -that outside this Natural Law of Nations no voluntary or positive Law of -Nations exists which has the force of real law (_quod quidem legis -proprie dictae vim habeat, quae gentes tamquam a superiore profecta -stringat_). - -[Footnote 79: De jure naturae et gentium, II. c. 3, § 22.] - -The most celebrated follower of Pufendorf is the German philosopher, -Christian Thomasius (1655-1728), who published in 1688 his -"Institutiones jurisprudentiae divinae," and in 1705 his "Fundamenta -juris naturae et gentium." Of English Naturalists may be mentioned -Francis Hutcheson ("System of Moral Philosophy," 1755) and Thomas -Rutherford ("Institutes of Natural Law; being the Substance of a Course -of Lectures on Grotius read in St. John's College, Cambridge," 2 vols. -1754-1756). Jean Barbeyrac (1674-1744), the learned French translator -and commentator of the works of Grotius, Pufendorf, and others, and, -further, Jean Jacques Burlamaqui (1694-1748), a native of Geneva, who -wrote the "Principes du droit de la nature et des gens," ought likewise -to be mentioned. - -[Sidenote: The Positivists.] - -§ 56. The "Positivists" are the antipodes of the Naturalists. They -include all those writers who, in contradistinction to Hobbes and -Pufendorf, not only defend the existence of a positive Law of Nations as -the outcome of custom or international treaties, but consider it more -important than the natural Law of Nations, the very existence of which -some of the Positivists deny, thus going beyond Zouche. The positive -writers had not much influence in the seventeenth century, during which -the Naturalists and the Grotians carried the day, but their time came in -the eighteenth century. - -Of seventeenth-century writers, the Germans Rachel and Textor must be -mentioned. Rachel published in 1676 his two dissertations, "De jure -naturae et gentium," in which he defines the Law of Nations as the law -to which a plurality of free States are subjected, and which comes into -existence through tacit or express consent of these States (_Jus plurium -liberalium gentium pacto sive placito expressim aut tacite initum, quo -utilitatis gratia sibi in vicem obligantur_). Textor published in 1680 -his "Synopsis juris gentium." - -In the eighteenth century the leading Positivists, Bynkershoek, Moser, -and Martens, gained an enormous influence. - -Cornelius van Bynkershoek[80] (1673-1743), a celebrated Dutch jurist, -never wrote a treatise on the Law of Nations, but gained fame through -three books dealing with different parts of this Law. He published in -1702 "De dominio maris," in 1721 "De foro legatorum," in 1737 -"Quaestionum juris publici libri II." According to Bynkershoek the basis -of the Law of Nations is the common consent of the nations which finds -its expression either in international custom or in international -treaties. - -[Footnote 80: See Phillipson in _The Journal of the Society of -Comparative Legislation_, New Series, IX. (1908), pp. 27-49.] - -Johann Jakob Moser (1701-1785), a German Professor of Law, published -many books concerning the Law of Nations, of which three must be -mentioned: (1) "Grundsätze des jetzt üblichen Völkerrechts in -Friedenszeiten," 1750; (2) "Grundsätze des jetzt üblichen Völkerrechts -in Kriegszeiten," 1752; (3) "Versuch des neuesten europäischen -Völkerrechts in Friedens- und Kriegszeiten," 1777-1780. Moser's books -are magazines of an enormous number of facts which are of the greatest -value for the positive Law of Nations. Moser never fights against the -Naturalists, but he is totally indifferent towards the natural Law of -Nations, since to him the Law of Nations is positive law only and based -on international custom and treaties. - -Georg Friedrich von Martens (1756-1821), Professor of Law in the -University of Göttingen, also published many books concerning the Law of -Nations. The most important is his "Précis du droit des gens moderne de -l'Europe," published in 1789, of which William Cobbett published in -1795 at Philadelphia an English translation, and of which as late as -1864 appeared a new edition at Paris with notes by Charles Vergé. -Martens began the celebrated collection of treaties which goes under the -title "Martens, Recueil des Traités," and is continued to our days.[81] -The influence of Martens was great, and even at the present time is -considerable. He is not an exclusive Positivist, since he does not deny -the existence of natural Law of Nations, and since he sometimes refers -to the latter in case he finds a gap in the positive Law of Nations. But -his interest is in the positive Law of Nations, which he builds up -historically on international custom and treaties. - -[Footnote 81: Georg Friedrich von Martens is not to be confounded with -his nephew Charles de Martens, the author of the "Causes célèbres de -droit des gens" and of the "Guide diplomatique."] - -[Sidenote: The Grotians.] - -§ 57. The "Grotians" stand midway between the Naturalists and the -Positivists. They keep up the distinction of Grotius between the natural -and the voluntary Law of Nations, but, in contradistinction to Grotius, -they consider the positive or voluntary of equal importance to the -natural, and they devote, therefore, their interest to both alike. -Grotius's influence was so enormous that the majority of the authors of -the seventeenth and eighteenth centuries were Grotians, but only two of -them have acquired a European reputation--namely, Wolff and Vattel. - -Christian Wolff (1679-1754), a German philosopher who was first -Professor of Mathematics and Philosophy in the Universities of Halle and -Marburg and afterwards returned to Halle as Professor of the Law of -Nature and Nations, was seventy years of age when, in 1749, he published -his "Jus gentium methodo scientifica pertractatum." In 1750 followed his -"Institutiones juris naturae et gentium." Wolff's conception of the Law -of Nations is influenced by his conception of the _civitas gentium -maxima_. The fact that there is a Family of Nations in existence is -strained by Wolff into the doctrine that the totality of the States -forms a world-State above the component member States, the so-called -_civitas gentium maxima_. He distinguishes four different kinds of Law -of Nations--namely, the natural, the voluntary, the customary, and that -which is expressly created by treaties. The latter two kinds are -alterable, and have force only between those single States between which -custom and treaties have created them. But the natural and the voluntary -Law of Nations are both eternal, unchangeable, and universally binding -upon all the States. In contradistinction to Grotius, who calls the -customary Law of Nations "voluntary," Wolff names "voluntary" those -rules of the Law of Nations which are, according to his opinion, tacitly -imposed by the _civitas gentium maxima_, the world-State, upon the -member States. - -Emerich de Vattel[82] (1714-1767), a Swiss from Neuchâtel, who entered -into the service of Saxony and became her Minister at Berne, did not in -the main intend any original work, but undertook the task of introducing -Wolff's teachings concerning the Law of Nations into the courts of -Europe and to the diplomatists. He published in 1758 his book, "Le droit -des gens, ou principes de la loi naturelle appliqués à la conduite et -aux affaires des Nations et des Souverains." But it must be specially -mentioned that Vattel expressly rejects Wolff's conception of the -_civitas gentium maxima_ in the preface to his book. Numerous editions -of Vattel's book have appeared, and as late as 1863 Pradier-Fodéré -re-edited it at Paris. An English translation by Chitty appeared in 1834 -and went through several editions. His influence was very great, and in -diplomatic circles his book still enjoys an unshaken authority. - -[Footnote 82: See Montmorency in _The Journal of the Society of -Comparative Legislation_, New Series, X. (1909), pp. 17-39.] - -[Sidenote: Treatises of the Nineteenth and Twentieth Centuries.] - -§ 58. Some details concerning the three schools of the Naturalists, -Positivists, and Grotians were necessary, because these schools are -still in existence. I do not, however, intend to give a list of writers -on special subjects, and the following list of treatises comprises the -more important ones only. - -(1) BRITISH TREATISES - - _William Oke Manning_: Commentaries on the Law of Nations, 1839; - new ed. by Sheldon Amos, 1875. - - _Archer Polson_: Principles of the Law of Nations, 1848; 2nd ed. - 1853. - - _Richard Wildman_: Institutes of International Law, 2 vols. - 1849-1850. - - _Sir Robert Phillimore_: Commentaries upon International Law, 4 - vols. 1854-1861; 3rd ed. 1879-1888. - - _Sir Travers Twiss_: The Law of Nations, etc., 2 vols. 1861-1863; - 2nd ed., vol. I. (Peace) 1884, vol. II. (War) 1875; French - translation, 1887-1889. - - _Sheldon Amos_: Lectures on International Law, 1874. - - _Sir Edward Shepherd Creasy_: First Platform of International Law, - 1876. - - _William Edward Hall_: Treatise on International Law, 1880; 6th - ed. 1909 (by Atlay). - - _Sir Henry Sumner Maine_: International Law, 1883; 2nd ed. 1894 - (Whewell Lectures, not a treatise). - - _James Lorimer_: The Institutes of International Law, 2 vols. - 1883-1884; French translation by Nys, 1885. - - _Leone Levi_: International Law, 1888. - - _T. J. Lawrence_: The Principles of International Law, 1895; 4th - ed. 1910. - - _Thomas Alfred Walker_: A Manual of Public International Law, - 1895. - - _Sir Sherston Baker_: First Steps in International Law, 1899. - - _F. E. Smith_: International Law, 1900; 4th ed. 1911 (by Wylie). - - _John Westlake_: International Law, vol. I. (Peace) 1904, vol. II. - (War) 1907; 2nd ed. vol. I. 1910. - -(2) NORTH AMERICAN TREATISES - - _James Kent_: Commentary on International Law, 1826; English - edition by Abdy, Cambridge, 1888. - - _Henry Wheaton_: Elements of International Law, 1836; 8th American - ed. by Dana, 1866; 3rd English ed. by Boyd, 1889; 4th English ed. - by Atlay, 1904. - - _Theodore D. Woolsey_: Introduction to the Study of International - Law, 1860; 6th ed. by Th. S. Woolsey, 1891. - - _Henry W. Halleck_: International Law, 2 vols. 1861; 4th English - ed. by Sir Sherston Baker, 1907. - - _Francis Wharton_: A Digest of the International Law of the United - States, 3 vols. 1886. - - _George B. Davis_: The Elements of International Law, 1887; 3rd - ed. 1908. - - _Hannis Taylor_: A Treatise on International Public Law, 1901. - - _George Grafton Wilson and George Fox Tucker_: International Law, - 1901; 5th ed. 1910. - - _Edwin Maxey_: International Law, with illustrative cases, 1906. - - _John Basset Moore_: A Digest of International Law, 8 vols. 1906. - - _George Grafton Wilson_: Handbook of International Law, 1910. - -(3) FRENCH TREATISES - - _Funck-Brentano et Albert Sorel_: Précis du Droit des Gens, 1877; - 2nd ed. 1894. - - _P. Pradier-Fodéré_: Traité de Droit International Public, 8 vols. - 1885-1906. - - _Henry Bonfils_: Manuel de Droit International Public, 1894; 5th - ed. by Fauchille, 1908. - - _Georges Bry_: Précis élémentaire de Droit International Public; - 5th ed. 1906. - - _Frantz Despagnet_: Cours de Droit International Public, 1894; 4th - ed. by De Boeck, 1910. - - _Robert Piédelièvre_: Précis de Droit International Public, 2 - vols. 1894-1895. - - _A. Mérignhac_: Traité de Droit Public International, vol. I. - 1905; vol. II. 1907. - -(4) GERMAN TREATISES - - _Theodor Schmalz_: Europäisches Völkerrecht, 1816. - - _Johann Ludwig Klüber_: Droit des Gens moderne, 1819; German ed. - under the title of Europäisches Völkerrecht in 1821; last German - ed. by Morstadt in 1851, and last French ed. by Ott in 1874. - - _Karl Heinrich Ludwig Poelitz_: Practisches (europäisches) - Völkerrecht, 1828. - - _Friedrich Saalfeld_: Handbuch des positiven Völkerrechts, 1833. - - _August Wilhelm Heffter_: Das europäische Völkerrecht der - Gegenwart, 1844; 8th ed. by Geffcken, 1888; French translations by - Bergson in 1851 and Geffcken in 1883. - - _Heinrich Bernhard Oppenheim_: System des Völkerrechts, 1845; 2nd - ed. 1866. - - _Johann Caspar Bluntschli_: Das moderne Völkerrecht der - civilisirten Staaten als Rechtsbuch dargestellt, 1868; 3rd ed. - 1878; French translation by Lardy, 5th ed. 1895. - - _Adolf Hartmann_: Institutionen des praktischen Völkerrechts in - Friedenszeiten, 1874; 2nd ed. 1878. - - _Franz von Holtzendorff_: Handbuch des Völkerrechts, 4 vols. - 1885-1889. Holtzendorff is the editor and a contributor, but there - are many other contributors. - - _August von Bulmerincq_: Das Völkerrecht, 1887. - - _Karl Gareis_: Institutionen des Völkerrechts, 1888; 2nd. ed. - 1901. - - _E. Ullmann_: Völkerrecht, 1898; 2nd ed. 1908. - - _Franz von Liszt_: Das Völkerrecht, 1898; 6th ed. 1910. - -(5) ITALIAN TREATISES - - _Luigi Casanova_: Lezioni di diritto internazionale, published - after the death of the author by Cabella, 1853; 3rd. ed. by Brusa, - 1876. - - _Pasquale Fiore_: Trattato di diritto internazionale publico, - 1865; 4th ed. in 3 vols. 1904; French translation of the 2nd ed. - by Antoine, 1885. - - _Giuseppe Carnazza-Amari_: Trattato di diritto internazionale di - pace, 2 vols. 1867-1875; French translation by Montanari-Pevest, - 1881. - - _Antonio del Bon_: Institutioni del diritto publico - internazionale, 1868. - - _Giuseppe Sandona_: Trattato di diritto internazionale moderno, 2 - vols. 1870. - - _Gian Battista Pertille_: Elementi di diritto internazionale, 2 - vols. 1877. - - _Augusto Pierantoni_: Trattato di diritto internazionale, vol. I. - 1881. (No further volume has appeared.) - - _Giovanni Lomonaco_: Trattato di diritto internazionale publico, - 1905. - - _Giulio Diena_: Principî di diritto internazionale, Parte Prima, - Diritto internaziole publico, 1908. - -(6) SPANISH AND SPANISH-AMERICAN TREATISES - - _Andrés Bello_: Principios de derecho de gentes (internacional), - 1832; last ed. in 2 vols. by Silva, 1883. - - _José Maria de Pando_: Elementos del derecho internacional, - published after the death of the author, 1843-1844. - - _Antonio Riquelme_: Elementos de derecho público internacional, - etc.; 2 vols. 1849. - - _Carlos Calvo_: Le Droit International, etc. (first edition in - Spanish, following editions in French), 1868; 5th ed. in 6 vols. - 1896. - - _Amancio Alcorta_: Curso de derecho internacional público, vol. I. - 1886; French translation by Lehr, 1887. - - _Marquis de Olivart_: Trattato y notas de derecho internacional - público, 4 vols. 1887; 4th ed. 1903-1904. - - _Luis Gesteso y Acosta_: Curso de derecho internacional público, - 1894. - - _Miguel Cruchaga_: Nociones de derecho internacional, 1899; 2nd - ed. 1902. - - _Manuel Torres Campos_: Elementos de derecho internacional - público; 2nd. ed. 1904. - -(7) TREATISES OF AUTHORS OF OTHER NATIONALITIES - - _Frederick Kristian Bornemann_: Forelæsninger over den positive - Folkeret, 1866. - - _Friedrich von Martens_: Völkerrecht, 2 vols. 1883; a German - translation by Berghohm of the Russian original. A French - translation by Léo in 3 vols. appeared in the same year. The - Russian original went through its 5th ed. in 1905. - - _Jan Helenus Ferguson_: Manual of International Law, etc., 2 vols. - 1884. The author is Dutch, but the work is written in English. - - _Alphonse Rivier_: Lehrbuch des Völkerrechts, 1894; 2nd ed. 1899, - and the larger work in two vols. under the title: Principes du - Droit des Gens, 1896. The author of these two excellent books was - a Swiss who taught International Law at the University of - Brussels. - - _H. Matzen_: Forelæsninger over den positive Folkeret, 1900. - - _Ernest Nys_: Le droit international, 3 vols. 1904-1906. The - author of this exhaustive treatise is a Belgian jurist whose - researches in the history of the science of the Law of Nations - have gained him far-reaching reputation.[83] - - [Footnote 83: The first volume of Nys contains in its pp. 251-328 - an exhaustive enumeration of all the more important works on - International Law, treatises as well as monographs, and I have - much pleasure in referring my readers to this learned work.] - - _J. De Louter_: Het Stellig Volkenrecht, 2 vols. 1910. - -[Sidenote: The Science of the Law of Nations in the Nineteenth and -Twentieth Centuries as represented by treatises.] - -§ 59. The Science of the Law of Nations, as left by the French -Revolution, developed progressively during the nineteenth century under -the influence of three factors. The first factor is the endeavour, on -the whole sincere, of the Powers since the Congress of Vienna to submit -to the rules of the Law of Nations. The second factor is the many -law-making treaties which arose during this century. And the last, but -not indeed the least factor, is the downfall of the theory of the Law of -Nature, which after many hundreds of years has at last been shaken off -during the second half of this century. - -When the nineteenth century opens, the three schools of the Naturalists, -the Positivists, and the Grotians are still in the field, but -Positivism[84] gains slowly and gradually the upper hand, until at the -end it may be said to be victorious, without, however, being omnipotent. -The most important writer[85] up to 1836 is Klüber, who may be called a -Positivist in the same sense as Martens, for he also applies the natural -Law of Nations to fill up the gaps of the positive. Wheaton appears in -1836 with his "Elements," and, although an American, at once attracts -the attention of the whole of Europe. He may be called a Grotian. And -the same may be maintained of Manning, whose treatise appeared in 1839, -and is the first that attempts a survey of British practice regarding -sea warfare based on the judgments of Sir William Scott (Lord Stowell). -Heffter, whose book appeared in 1844, is certainly a Positivist, -although he does not absolutely deny the Law of Nature. In exact -application of the juristic method, Heffter's book excels all former -ones, and all the following authors are in a sense standing on his -shoulders. In Phillimore, Great Britain sends in 1854 a powerful author -into the arena, who may, on the whole, be called a Positivist of the -same kind as Martens and Klüber. Generations to come will consult -Phillimore's volumes on account of the vast amount of material they -contain and the sound judgment they exhibit. And the same is valid with -regard to Sir Travers Twiss, whose first volume appeared in 1861. -Halleck's work, which appeared in the same year, is of special -importance as regards war, because the author, who was a General in the -service of the United States, gave to this part his special attention. -The next prominent author, the Italian Fiore, who published his system -in 1865 and may be called a Grotian, is certainly the most prominent -Italian author, and the new edition of his work will for a long time to -come be consulted. Bluntschli, the celebrated Swiss-German author, -published his book in 1867; it must, in spite of the world-wide fame of -its author, be consulted with caution, because it contains many rules -which are not yet recognised rules of the Law of Nations. Calvo's work, -which first appeared in 1868, contains an invaluable store of facts and -opinions, but its juristic basis is not very exact. - -[Footnote 84: Austin and his followers who hold that the rules of -International Law are rules of "positive morality" must be considered -Positivists, although they do not agree to International Law being real -law.] - -[Footnote 85: I do not intend to discuss the merits of writers on -special subjects, and I mention only the authors of the most important -treatises which are written in, or translated into, English, French, or -German.] - -From the seventies of the nineteenth century the influence of the -downfall of the theory of the Law of Nature becomes visible in the -treatises on the Law of Nations, and therefore real positivistic -treatises make their appearance. For the Positivism of Zouche, -Bynkershoek, Martens, Klüber, Heffter, Phillimore, and Twiss was no real -Positivism, since these authors recognised a natural Law of Nations, -although they did not make much use of it. Real Positivism must entirely -avoid a natural Law of Nations. We know nowadays that a Law of Nature -does not exist. Just as the so-called Natural Philosophy had to give way -to real natural science, so the Law of Nature had to give way to -jurisprudence, or the philosophy of the positive law. Only a positive -Law of Nations can be a branch of the science of law. - -The first real positive treatise known to me is Hartmann's -"Institutionen des praktischen Völkerrechts in Friedenszeiten," which -appeared in 1874, but is hardly known outside Germany. In 1880 Hall's -treatise appeared, and at once won the attention of the whole world; it -is one of the best books on the Law of Nations that have ever been -written. Lorimer, whose two volumes appeared in 1883 and 1884, is a -Naturalist pure and simple, but his work is nevertheless of value. The -Russian Martens, whose two volumes appeared in German and French -translations in 1883 and at once put their author in the forefront of -the authorities, certainly intends to be a real Positivist, but traces -of Natural Law are nevertheless now and then to be found in his book. A -work of a special kind is that of Holtzendorff, the first volume of -which appeared in 1885. Holtzendorff himself is the editor and at the -same time a contributor to the work, but there are many other -contributors, each of them dealing exhaustively with a different part of -the Law of Nations. The copious work of Pradier-Fodéré, which also began -to appear in 1885, is far from being positive, although it has its -merits. Wharton's three volumes, which appeared in 1886, are not a -treatise, but contain the international practice of the United States. -Bulmerincq's book, which appeared in 1887, gives a good survey of -International Law from the positive point of view. In 1894 three French -jurists, Bonfils, Despagnet, and Piédelievre, step into the arena; their -treatises are comprehensive and valuable, but not absolutely positive. -On the other hand, the English authors Lawrence and Walker, whose -excellent manuals appeared in 1895, are real Positivists. Of the -greatest value are the two volumes of Rivier which appeared in 1896; -they are full of sound judgment, and will influence the theory and -practice of International Law for a long time to come. Liszt's short -manual, which in its first edition made its appearance in 1898, is -positive throughout, well written, and suggestive. Ullmann's work, which -likewise appeared in its first edition in 1898, is an excellent and -comprehensive treatise which thoroughly discusses all the more important -problems and points from the positive standpoint. Hannis Taylor's -comprehensive treatise, which appeared in 1901, is likewise thoroughly -positive, and so are the serviceable manuals of Wilson and Maxey. Of -great value are the two volumes of Westlake which appeared in 1904 and -1907; they represent rather a collection of thorough monographs than a -treatise, and will have great and lasting influence. A work of -particular importance is the "Digest" of John Basset Moore, which -appeared in 1906, comprises eight volumes, and contains the -international practice of the United States in a much more exhaustive -form than the work of Wharton; it is an invaluable work which must be -consulted on every subject. The same is valid with regard to the three -volumes of Nys, who may be characterised as a Grotian, and whose work is -full of information on the historical and literary side of the -problems.[86] - -[Footnote 86: On the task and method of the science of International Law -from the positive standpoint, see Oppenheim in A.J. II. (1908), pp. -313-356.] - -§ 60. COLLECTIONS OF TREATIES - -(1) GENERAL COLLECTIONS - - _Leibnitz_: Codex iuris gentium diplomaticus (1693); Mantissa - codicis iuris gentium diplomatici (1700). - - _Bernard_: Recueil des traités, etc. 4 vols. (1700). - - _Rymer_: Foedera etc. inter reges angliae et alios quosvis - imperatores ... ab anno 1101 ad nostra usque tempora habita et - tradata, 20 vols. 1704-1718 (Contains documents from 1101-1654). - - _Dumont_: Corps universel diplomatique, etc., 8 vols. (1726-1731). - - _Rousset_: Supplément au corps universel diplomatique de Dumont, 5 - vols. (1739). - - _Schmauss_: Corpus iuris gentium academicum (1730). - - _Wenck_: Codex iuris gentium recentissimi, 3 vols. (1781, 1786, - 1795). - - _Martens_: Recueil de Traités d'Alliance, etc., 8 vols. - (1791-1808); Nouveau Recueil de Traités d'Alliance, etc., 16 vols. - (1817-1842); Nouveaux Suppléments au Recueil de Traités et - d'autres Actes remarquables, etc., 3 vols. (1839-1842); Nouveau - Recueil Général de Traités, Conventions et autres Actes - remarquables, etc., 20 vols. (1843-1875); Nouveau Recueil Général - de Traités et autres Actes relatifs aux Rapports de droit - international, Deuxième Série, 35 vols. (1876-1908); Nouveau - Recueil Général de Traités et autres Actes relatifs aux Rapports - de droit international, Troisième Série, vol. I. 1908, continued - up to date. Present editor, Heinrich Triepel, professor in the - University of Kiel in Germany. - - _Ghillany_: Diplomatisches Handbuch, 3 vols. (1855-1868). - - _Martens et Cussy_: Recueil manuel, etc., 7 vols. (1846-1857); - continuation by Geffcken, 3 vols. (1857-1885). - - _British and Foreign State Papers_: Vol. I. 1814, continued up to - date, one volume yearly. - - _Das Staatsarchiv_: Sammlung der officiellen Actenstücke zur - Geschichte der Gegenwart, vol. I. 1861, continued up to date, one - volume yearly. - - _Archives diplomatiques_: Recueil mensuel de diplomatie, - d'histoire, et de droit international, first and second series, - 1861-1900, third series from 1901 continued up to date (4 vols. - yearly). - - _Recueil International des Traités du XXe Siècle_: Edited by - Descamps and Renault since 1901. - - _Strupp_: Urkunden zur Geschichte des Völkerrechts, 2 vols. - (1911). - -(2) COLLECTIONS OF ENGLISH TREATIES ONLY - - _Jenkinson_: Collection of all the Treaties, etc., between Great - Britain and other Powers from 1648 to 1783, 3 vols. (1785). - - _Chalmers_: A Collection of Maritime Treaties of Great Britain and - other Powers, 2 vols. (1790). - - _Hertslet_: Collection of Treaties and Conventions between Great - Britain and other Powers (vol. I. 1820, continued to date). - - _Treaty Series_: Vol. I. 1892, and a volume every year. - -§ 61. BIBLIOGRAPHIES - - _Ompteda_: Litteratur des gesammten Völkerrechts, 2 vols. (1785). - - _Kamptz_: Neue Litteratur des Völkerrechts seit 1784 (1817). - - _Klüber_: Droit des gens moderne de l'Europe (Appendix) (1819). - - _Miruss_: Das Europäische Gesandschaftsrecht, vol. II. (1847). - - _Mohl_: Geschichte und Litteratur des Staatswissenschaften, vol. - I. pp. 337-475 (1855). - - _Woolsey_: Introduction to the Study of International Law (6th ed. - 1891), Appendix I. - - _Rivier_: pp. 393-523 of vol. I. of Holtzendorff's Handbuch des - Völkerrechts (1885). - - _Stoerk_: Die Litteratur des internationalen Rechts von 1884-1894 - (1896). - - _Olivart_: Catalogue d'une bibliothèque de droit international - (1899). - - _Nys_: Le droit international, vol. I. (1904), pp. 213-328. - -§ 62. PERIODICALS - - Revue de droit international et de législation comparée. It has - appeared in Brussels since 1869, one volume yearly. Present - editor, Edouard Rolin. - - Revue générale de droit international public. It has appeared in - Paris since 1894, one volume yearly. Founder and present editor, - Paul Fauchille. - - Zeitschrift für internationales Recht. It has appeared in Leipzig - since 1891, one volume yearly. Present editor, Theodor Niemeyer. - - Annuaire de l'Institut de Droit International, vol. I. 1877. A - volume appears after each meeting of the Institute. - - Kokusaiho-Zasshi, the Japanese International Law Review. It has - appeared in Tokio since 1903. - - Revista de Derecho Internacional y politica exterior. It has - appeared in Madrid since 1905, one volume yearly. Editor, Marquis - de Olivart. - - Rivista di Diritto Internazionale. It has appeared in Rome since - 1906, one volume yearly. Editors, D. Anzilotti, A. Ricci-Busatti, - and L. A. Senigallia. - - Zeitschrift für Völkerrecht und Bundesstaatsrecht. It has appeared - in Breslau since 1906, one volume yearly. Editors, Joseph Kohler, - L. Oppenheim, and F. Holldack. - - The American Journal of International Law. It has appeared in - Washington since 1907, one volume yearly. Editor, James Brown - Scott. - - Essays and Notes concerning International Law frequently appear - also in the Journal du droit international privé et de la - Jurisprudence comparée (Clunet), the Archiv für öffentliches - Recht, The Law Quarterly Review, The Law Magazine and Review, The - Juridical Review, The Journal of the Society of Comparative - Legislation, The American Law Review, the Annalen des deutschen - Reiches, the Zeitschrift für das privat- und öffentliche Recht der - Gegenwart (Grünhut), the Revue de droit public et de la science - politique (Larnaude), the Annales des sciences politiques, the - Archivio giuridico, the Jahrbuch des öffentlichen Rechts, and many - others. - - - - -PART I - -THE SUBJECTS OF THE LAW OF NATIONS - - - - -CHAPTER I - -INTERNATIONAL PERSONS - - -I - -SOVEREIGN STATES AS INTERNATIONAL PERSONS - - Vattel, I. §§ 1-12--Hall, § 1--Lawrence, § 42--Phillimore, I. §§ - 61-69--Twiss, I. §§ 1-11--Taylor, § 117--Walker, § 1--Westlake, I. - pp. 1-5, 20-21--Wheaton, §§ 16-21--Ullmann, § 19--Heffter, § - 15--Holtzendorff in Holtzendorff, II. pp. 5-11--Bonfils, Nos. - 160-164--Despagnet, Nos. 69-74--Pradier-Fodéré, I. Nos. - 43-81--Nys, I. pp. 329-356--Rivier, I. § 3--Calvo, I. §§ - 39-41--Fiore, I. Nos. 305-309, and Code, Nos. 51-77--Martens, I. - §§ 53-54--Mérignhac, I. pp. 114-231, and II. pp. 5, - 154-221--Moore, I. § 3. - -[Sidenote: Real and apparent International Persons.] - -§ 63. The conception of International Persons is derived from the -conception of the Law of Nations. As this law is the body of rules which -the civilised States consider legally binding in their intercourse, -every State which belongs to the civilised States, and is, therefore, a -member of the Family of Nations, is an International Person. Sovereign -States exclusively are International Persons--_i.e._ subjects of -International Law. There are, however, as will be seen, full and -not-full Sovereign States. Full Sovereign States are perfect, not-full -Sovereign States are imperfect International Persons, for not-full -Sovereign States are for some parts only subjects of International Law. - -In contradistinction to Sovereign States which are real, there are also -apparent, but not real, International Persons--namely, Confederations of -States, insurgents recognised as a belligerent Power in a civil war, and -the Holy See. All these are not, as will be seen,[87] real subjects of -International Law, but in some points are treated as though they were -International Persons, without thereby becoming members of the Family of -Nations. - -[Footnote 87: See below, § 88 (Confederations of States), § 106 (Holy -See), and vol. II. §§ 59 and 76 (Insurgents).] - -It must be specially mentioned that the character of a subject of the -Law of Nations and of an International Person can be attributed neither -to monarchs, diplomatic envoys, private individuals, or churches, nor to -chartered companies, nations, or races after the loss of their State -(as, for instance, the Jews or the Poles), and organised wandering -tribes.[88] - -[Footnote 88: Most jurists agree with this opinion, but there are some -who disagree. Thus, for instance, Heffter (§ 48) claims for monarchs the -character of subjects of the Law of Nations; Lawrence (§ 42) claims that -character for corporations; and Westlake, Chapters, p. 2, and Fiore, -Code, Nos. 51, 61-64, claim it for individuals. The matter will be -discussed below in §§ 288, 290, 344, 384.] - -[Sidenote: Conception of the State.] - -§ 64. A State proper--in contradistinction to so-called Colonial -States--is in existence when a people is settled in a country under its -own Sovereign Government. The conditions which must obtain for the -existence of a State are therefore four: - -There must, first, be a _people_. A people is an aggregate of -individuals of both sexes who live together as a community in spite of -the fact that they may belong to different races or creeds, or be of -different colour. - -There must, secondly, be a _country_ in which the people has settled -down. A wandering people, such as the Jews were whilst in the desert for -forty years before their conquest of the Holy Land, is not a State. But -it matters not whether the country is small or large; it may consist, as -with City States, of one town only. - -There must, thirdly, be a _Government_--that is, one or more persons who -are the representatives of the people and rule according to the law of -the land. An anarchistic community is not a State. - -There must, fourthly and lastly, be a _Sovereign_ Government. -Sovereignty is supreme authority, an authority which is independent of -any other earthly authority. Sovereignty in the strict and narrowest -sense of the term includes, therefore, independence all round, within -and without the borders of the country. - -[Sidenote: Not-full Sovereign States.] - -§ 65. A State in its normal appearance does possess independence all -round and therefore full sovereignty. Yet there are States in existence -which certainly do not possess full sovereignty, and are therefore named -not-full Sovereign States. All States which are under the suzerainty or -under the protectorate of another State or are member States of a -so-called Federal State, belong to this group. All of them possess -supreme authority and independence with regard to a part of the tasks of -a State, whereas with regard to another part they are under the -authority of another State. Hence it is that the question is disputed -whether such not-full Sovereign States can be International Persons and -subjects of the Law of Nations at all.[89] - -[Footnote 89: The question will be discussed again below, §§ 89, 91, 93, -with regard to each kind of not-full Sovereign States. The object of -discussion here is the question whether such States can be considered as -International Persons at all. Westlake, I. p. 21, answers it -affirmatively by stating: "It is not necessary for a State to be -independent in order to be a State of International Law."] - -That they cannot be full, perfect, and normal subjects of International -Law there is no doubt. But it is wrong to maintain that they can have no -international position whatever and can never be members of the Family -of Nations at all. If we look at the matter as it really stands, we -observe that they actually often enjoy in many points the rights and -fulfil in other points the duties of International Persons. They often -send and receive diplomatic envoys or at least consuls. They often -conclude commercial or other international treaties. Their monarchs -enjoy the privileges which according to the Law of Nations the Municipal -Laws of the different States must grant to the monarchs of foreign -States. No other explanation of these and similar facts can be given -except that these not-full Sovereign States are in some way or another -International Persons and subjects of International Law. Such imperfect -International Personality is, of course, an anomaly; but the very -existence of States without full sovereignty is an anomaly in itself. -And history teaches that States without full sovereignty have no -durability, since they either gain in time full sovereignty or disappear -totally as separate States and become mere provinces of other States. So -anomalous are these not-full Sovereign States that no hard-and-fast -general rule can be laid down with regard to their position within the -Family of Nations, since everything depends upon the special case. What -may be said in general concerning all the States without full -sovereignty is that their position within the Family of Nations, if any, -is always more or less overshadowed by other States. But their partial -character of International Persons comes clearly to light when they are -compared with so-called Colonial States, such as the Dominion of Canada -or the Commonwealth of Australia. Colonial States have no international -position[90] whatever; they are, from the standpoint of the Law of -Nations, nothing else than colonial portions of the mother-country, -although they enjoy perfect self-government, and may therefore in a -sense be called States. The deciding factor is that their Governor, who -has a veto, is appointed by the mother-country, and that the Parliament -of the mother-country could withdraw self-government from its Colonial -States and legislate directly for them. - -[Footnote 90: Therefore treaties concluded by Canada with foreign States -are not Canadian treaties, but treaties concluded by Great Britain for -Canada. Should Colonial States ever acquire the right to conclude -treaties directly with foreign States without the consent of the -mother-country, they would become internationally part-sovereign and -thereby obtain a certain international position.] - -[Sidenote: Divisibility of Sovereignty contested.] - -§ 66. The distinction between States full Sovereign and not-full -Sovereign is based upon the opinion that sovereignty is divisible, so -that the powers connected with sovereignty need not necessarily be -united in one hand. But many jurists deny the divisibility of -sovereignty and maintain that a State is either sovereign or not. They -deny that sovereignty is a characteristic of every State and of the -membership of the Family of Nations. It is therefore necessary to face -the conception of sovereignty more closely. And it will be seen that -there exists perhaps no conception the meaning of which is more -controversial than that of sovereignty. It is an indisputable fact that -this conception, from the moment when it was introduced into political -science until the present day, has never had a meaning which was -universally agreed upon.[91] - -[Footnote 91: The literature upon sovereignty is extensive. The -following authors give a survey of the opinions of the different -writers:--Dock, "Der Souveränitäts-begriff von Bodin bis zu Friedrich -dem Grossen," 1897; Merriam, "History of the Theory of Sovereignty since -Rousseau," 1900; Rehm, "Allgemeine Staatslehre," 1899, §§ 10-16. See -also Maine, "Early Institutions," pp. 342-400.] - -[Sidenote: Meaning of Sovereignty in the Sixteenth and Seventeenth -Centuries.] - -§ 67. The term Sovereignty was introduced into political science by -Bodin in his celebrated work, "De la république," which appeared in -1577. Before Bodin, at the end of the Middle Ages, the word -_souverain_[92] was used in France for an authority, political or other, -which had no other authority above itself. Thus the highest courts were -called _Cours Souverains_. Bodin, however, gave quite a new meaning to -the old conception. Being under the influence and in favour of the -policy of centralisation initiated by Louis XI. of France (1461-1483), -the founder of French absolutism, he defined sovereignty as "the -absolute and perpetual power within a State." Such power is the supreme -power within a State without any restriction whatever except the -Commandments of God and the Law of Nature. No constitution can limit -sovereignty, which is an attribute of the king in a monarchy and of the -people in a democracy. A Sovereign is above positive law. A contract -only is binding upon the Sovereign, because the Law of Nature commands -that a contract shall be binding.[93] - -[Footnote 92: _Souverain_ is derived either from the Latin _superanus_ -or from _suprema potestas_.] - -[Footnote 93: See Bodin, "De la république," I. c. 8.] - -The conception of sovereignty thus introduced was at once accepted by -writers on politics of the sixteenth century, but the majority of these -writers taught that sovereignty could be restricted by a constitution -and by positive law. Thus at once a somewhat weaker conception of -sovereignty than that of Bodin made its appearance. On the other hand, -in the seventeenth century, Hobbes went even beyond Bodin, -maintaining[94] that a Sovereign was not bound by anything and had a -right over everything, even over religion. Whereas a good many -publicists followed Hobbes, others, especially Pufendorf, denied, in -contradistinction to Hobbes, that sovereignty includes omnipotence. -According to Pufendorf, sovereignty is the supreme power in a State, but -not absolute power, and sovereignty may well be constitutionally -restricted.[95] Yet in spite of all the differences in defining -sovereignty, all authors of the sixteenth and seventeenth centuries -agree that sovereignty is indivisible and contains the centralisation of -all power in the hands of the Sovereign, whether a monarch or the people -itself in a republic. Yet the way for another conception of sovereignty -is prepared by Locke, whose "Two Treatises on Government" appeared in -1689, and paved the way for the doctrine that the State itself is the -original Sovereign, and that all supreme powers of the Government are -derived from this sovereignty of the State. - -[Footnote 94: See Hobbes, "De cive," c. 6, §§ 12-15.] - -[Footnote 95: See Pufendorf, "De jure naturae et gentium," VII. c. 6, §§ -1-13.] - -[Sidenote: Meaning of Sovereignty in the Eighteenth Century.] - -§ 68. In the eighteenth century matters changed again. The fact that the -several hundred reigning princes of the member-States of the German -Empire had practically, although not theoretically, become more or less -independent since the Westphalian Peace enforced the necessity upon -publicists to recognise a distinction between an absolute, perfect, full -sovereignty, on the one hand, and, on the other, a relative, imperfect, -not-full or half-sovereignty. Absolute and full sovereignty was -attributed to those monarchs who enjoyed an unqualified independence -within and without their States. Relative and not-full sovereignty, or -half-sovereignty, was attributed to those monarchs who were, in various -points of internal or foreign affairs of State, more or less dependent -upon other monarchs. By this distinction the divisibility of sovereignty -was recognised. And when in 1787 the United States of America turned -from a Confederation of States into a Federal State, the division of -sovereignty between the Sovereign Federal State and the Sovereign -member-States appeared. But it cannot be maintained that divisibility of -sovereignty was universally recognised in the eighteenth century. It -suffices to mention Rousseau, whose "Contrat Social" appeared in 1762 -and defended again the indivisibility of sovereignty. Rousseau's -conception of sovereignty is essentially that of Hobbes, since it -contains absolute supreme power, but he differs from Hobbes in so far -as, according to Rousseau, sovereignty belongs to the people only and -exclusively, is inalienable, and therefore cannot be transferred from -the people to any organ of the State. - -[Sidenote: Meaning of Sovereignty in the Nineteenth Century.] - -§ 69. During the nineteenth century three different factors of great -practical importance have exercised their influence on the history of -the conception of sovereignty. - -The first factor is that, with the exception of Russia, all civilised -Christian monarchies during this period turned into constitutional -monarchies. Thus identification of sovereignty with absolutism belongs -practically to the past, and the fact was during the nineteenth century -generally recognised that a sovereign monarch may well be restricted in -the exercise of his powers by a Constitution and positive law. - -The second factor is, that the example of a Federal State set by the -United States has been followed by Switzerland, Germany, and others. The -Constitution of Switzerland as well as that of Germany declares -decidedly that the member-States of the Federal State remain Sovereign -States, thus indirectly recognising the divisibility of sovereignty -between the member-States and the Federal State according to different -matters. - -The third and most important factor is, that the science of politics has -learned to distinguish between sovereignty of the State and sovereignty -of the organ which exercises the powers of the State. The majority of -publicists teach henceforth that neither the monarch, nor Parliament, -nor the people is originally Sovereign in a State, but the State itself. -Sovereignty, we say nowadays, is a natural attribute of every State as a -State. But a State, as a Juristic Person, wants organs to exercise its -powers. The organ or organs which exercise for the State powers -connected with sovereignty are said to be sovereign themselves, yet it -is obvious that this sovereignty of the organ is derived from the -sovereignty of the State. And it is likewise obvious that the -sovereignty of a State may be exercised by the combined action of -several organs, as, for instance, in Great Britain, King and Parliament -are the joint administrators of the sovereignty of the State. And it is, -thirdly, obvious that a State can, as regards certain matters, have its -sovereignty exercised by one organ and as regards other matters by -another organ. - -In spite of this condition of things, the old controversy regarding -divisibility of sovereignty has by no means died out. It acquired a -fresh stimulus, on the one hand, through Switzerland and Germany turning -into Federal States, and, on the other, through the conflict between the -United States of America and her Southern member-States. The theory of -the concurrent sovereignty of the Federal State and its member-States, -as defended by "The Federalist" (Alexander Hamilton, James Madison, and -John Jay) in 1787, was in Germany taken up by Waitz,[96] whom numerous -publicists followed. The theory of the indivisibility of sovereignty was -defended by Calhoun,[97] and many European publicists followed him in -time. - -[Footnote 96: Politik, 1862.] - -[Footnote 97: A Disquisition on Government, 1851.] - -[Sidenote: Result of the Controversy regarding Sovereignty.] - -§ 70. From the foregoing sketch of the history of the conception of -sovereignty it becomes apparent that there is not and never was -unanimity regarding this conception. It is therefore no wonder that the -endeavour has been made to eliminate the conception of sovereignty from -the science of politics altogether, and likewise to eliminate -sovereignty as a necessary characteristic of statehood, so that States -with and without sovereignty would in consequence be distinguishable. It -is a fact that sovereignty is a term used without any well-recognised -meaning except that of supreme authority. Under these circumstances -those who do not want to interfere in a mere scholastic controversy must -cling to the facts of life and the practical, though abnormal and -illogical, condition of affairs. As there can be no doubt about the fact -that there are semi-independent States in existence, it may well be -maintained that sovereignty is divisible. - - -II - -RECOGNITION OF STATES AS INTERNATIONAL PERSONS - - Hall, §§ 2 and 26--Lawrence, §§ 44-47--Phillimore, II. §§ - 10-23--Taylor, §§ 153-160--Walker, § 1--Westlake, I. pp. - 49-58--Wheaton, § 27--Moore, §§ 27-75--Bluntschli, §§ - 28-38--Hartmann, § 11--Heffter, § 23--Holtzendorff in - Holtzendorff, II. pp. 18-33--Liszt, § 5--Ullmann, §§ - 29-30--Bonfils, Nos. 195-213--Despagnet, Nos. - 79-85--Pradier-Fodéré, I. Nos. 136-145--Nys, I. pp. - 69-115--Mérignhac, I. pp. 320-329--Rivier, I. § 3--Calvo, I. §§ - 87-98--Fiore, I. Nos. 311-320, and Code, Nos. 160-177--Martens, I. - §§ 63-64--Le Normand, "La reconnaissance internationale et ses - diverses applications" (1899). - -[Sidenote: Recognition a condition of Membership of the Family of -Nations.] - -§ 71. As the basis of the Law of Nations is the common consent of the -civilised States, statehood alone does not include membership of the -Family of Nations. There are States in existence, although their number -decreases gradually, which are not, or not fully, members of that -family, because their civilisation, if any, does not enable them and -their subjects to act in conformity with the principles of International -Law. Those States which are members are either original members because -the Law of Nations grew up gradually between them through custom and -treaties, or they are members which have been recognised by the body of -members already in existence when they were born.[98] For every State -that is not already, but wants to be, a member, recognition is therefore -necessary. A State is and becomes an International Person through -recognition only and exclusively. - -[Footnote 98: See above, §§ 27 and 28.] - -Many writers do not agree with this opinion. They maintain that, if a -new civilised State comes into existence either by breaking off from an -existing recognised State, as Belgium did in 1831, or otherwise, such -new State enters of right into the Family of Nations and becomes of -right an International Person.[99] They do not deny that practically -such recognition is necessary to enable every new State to enter into -official intercourse with other States. Yet they assert that -theoretically every new State becomes a member of the Family of Nations -_ipso facto_ by its rising into existence, and that recognition supplies -only the necessary evidence for this fact. - -[Footnote 99: See, for instance, Hall, §§ 2 and 26; Ullmann, § 29; -Gareis, p. 64; Rivier, I. p. 57.] - -If the real facts of international life are taken into consideration, -this opinion cannot stand. It is a rule of International Law that no new -State has a right towards other States to be recognised by them, and -that no State has the duty to recognise a new State. It is generally -agreed that a new State before its recognition cannot claim any right -which a member of the Family of Nations has towards other members. It -can, therefore, not be seen what the function of recognition could be if -a State entered at its birth really of right into the membership of the -Family of Nations. There is no doubt that statehood itself is -independent of recognition. International Law does not say that a State -is not in existence as long as it is not recognised, but it takes no -notice of it before its recognition. Through recognition only and -exclusively a State becomes an International Person and a subject of -International Law. - -[Sidenote: Mode of Recognition.] - -§ 72. Recognition is the act through which it becomes apparent that an -old State is ready to deal with a new State as an International Person -and a member of the Family of Nations. Recognition is given either -expressly or tacitly. If a new State asks formally for recognition and -receives it in a formal declaration of any kind, it receives express -recognition. On the other hand, recognition is tacitly and indirectly -given when an old State enters officially into intercourse with the new, -be it by sending or receiving a diplomatic envoy,[100] or by concluding -a treaty, or by any other act through which it becomes apparent that the -new State is actually treated as an International Person. - -[Footnote 100: Whether the sending of a consul includes recognition is -discussed below, § 428.] - -But no new State has by International Law a right to demand recognition, -although practically such recognition cannot in the long run be -withheld, because without it there is no possibility of entering into -intercourse with the new State. The interests of the old States must -suffer quite as much as those of the new State, if recognition is for -any length of time refused, and practically these interests in time -enforce either express or tacit recognition. History nevertheless -records many cases of deferred recognition,[101] and, apart from other -proof, it becomes thereby apparent that the granting or the denial of -recognition is not a matter of International Law but of international -policy. - -[Footnote 101: See the cases enumerated by Rivier, I. p. 58.] - -It must be specially mentioned that recognition by one State is not at -all binding upon other States, so that they must follow suit. But in -practice such an example, if set by one or more Great Powers and at a -time when the new State is really established on a sound basis, will -make many other States at a later period give their recognition too. - -[Sidenote: Recognition under Conditions.] - -§ 73. Recognition will as a rule be given without any conditions -whatever, provided the new State is safely and permanently established. -Since, however, the granting of recognition is a matter of policy, and -not of law, nothing prevents an old State from making the recognition of -a new State dependent upon the latter fulfilling certain conditions. -Thus the Powers assembled at the Berlin Congress in 1878 recognised -Bulgaria, Montenegro, Servia, and Roumania under the condition only that -these States did not[102] impose any religious disabilities on any of -their subjects.[103] The meaning of such conditional recognition is not -that recognition can be withdrawn in case the condition is not complied -with. The nature of the thing makes recognition, if once given, -incapable of withdrawal. But conditional recognition, if accepted by the -new State, imposes the internationally legal duty upon such State of -complying with the condition; failing which a right of intervention is -given to the other party for the purpose of making the recognised State -comply with the imposed condition. - -[Footnote 102: This condition contains a restriction on the personal -supremacy of the respective States. See below, § 128.] - -[Footnote 103: See arts. 5, 25, 35, and 44 of the Treaty of Berlin of -1878, in Martens, N.R.G. 2nd Ser. III. p. 449.] - -[Sidenote: Recognition timely and precipitate.] - -§ 74. Recognition is of special importance in those cases where a new -State tries to establish itself by breaking off from an existing State -in the course of a revolution. And here the question is material whether -a new State has really already safely and permanently established itself -or only makes efforts to this end without having already succeeded. That -in every case of civil war a foreign State can recognise the insurgents -as a belligerent Power if they succeed in keeping a part of the country -in their hands and set up a Government of their own, there is no doubt. -But between this recognition as a belligerent Power and the recognition -of these insurgents and their part of the country as a new State, there -is a broad and deep gulf. And the question is precisely at what exact -time recognition of a new State may be given instead of the recognition -as a belligerent Power. For an untimely and precipitate recognition as a -new State is a violation of the dignity[104] of the mother-State, to -which the latter need not patiently submit. - -[Footnote 104: It is frequently maintained that such untimely -recognition contains an intervention. But this is not correct, since -intervention is (see below, § 134) _dictatorial_ interference in the -affairs of another State. The question of recognition of the -belligerency of insurgents is exhaustively treated by Westlake, I. pp. -50-57.] - -In spite of the importance of the question, no hard-and-fast rule can -be laid down as regards the time when it can be said that a State -created by revolution has established itself safely and permanently. The -characteristic of such safe and permanent establishment may be found -either in the fact that the revolutionary State has utterly defeated the -mother-State, or that the mother-State has ceased to make efforts to -subdue the revolutionary State, or even that the mother-State, in spite -of its efforts, is apparently incapable of bringing the revolutionary -back under its sway.[105] Of course, as soon as the mother-State itself -recognises the new State, there is no reason for other States to -withhold any longer their recognition, although they have even then no -legal obligation to grant it. - -[Footnote 105: When, in 1903, Panama fell away from Colombia, the United -States immediately recognised the new Republic as an independent State. -For the motives of this quick action, see Moore, I. § 344, pp. 46 and -following.] - -The breaking off of the American States from their European -mother-States furnishes many illustrative examples. Thus the recognition -of the United States by France in 1778 was precipitate. But when in 1782 -England herself recognised the independence of the United States, other -States could accord recognition too without giving offence to England. -Again, when the South American colonies of Spain declared their -independence in 1810, no Power recognised the new States for many years. -When, however, it became apparent that Spain, although she still kept up -her claims, was not able to restore her sway, the United States -recognised the new States in 1822, and England followed the example in -1824 and 1825.[106] - -[Footnote 106: See Gibbs, "Recognition: a Chapter from the History of -the North American and South American States" (1863), and Moore, I. §§ -28-36.] - -[Sidenote: State Recognition in contradistinction to other -Recognitions.] - -§ 75. Recognition of a new State must not be confounded with other -recognitions. Recognition of insurgents as a belligerent Power has -already been mentioned. Besides this, recognition of a change in the -form of the government or of change in the title of an old State is a -matter of importance. But the granting or refusing of these recognitions -has nothing to do with recognition of the State itself. If a foreign -State refuses the recognition of a change in the form of the government -of an old State, the latter does not thereby lose its recognition as an -International Person, although no official intercourse is henceforth -possible between the two States as long as recognition is not given -either expressly or tacitly. And if recognition of a new title[107] of -an old State is refused, the only consequence is that such State cannot -claim any privileges connected with the new title. - -[Footnote 107: See below, § 119.] - - -III - -CHANGES IN THE CONDITION OF INTERNATIONAL PERSONS - - Grotius, II. c. 9, §§ 5-13--Pufendorf, VIII. c. 12--Vattel, I. § - 11--Hall, § 2--Halleck, I. pp. 89-92--Phillimore, I. §§ - 124-137--Taylor, § 163--Westlake, I. pp. 58-66--Wheaton, §§ - 28-32--Moore, I. §§ 76-79--Bluntschli, §§ 39-53--Hartmann, §§ - 12-13--Heffter, § 24--Holtzendorff in Holtzendorff, II. pp. - 21-23--Liszt, § 5--Ullmann, §§ 31 and 35--Bonfils, Nos. - 214-215--Despagnet, Nos. 86-89--Pradier-Fodéré, I. Nos. - 146-157--Nys, I. pp. 399-401--Rivier, I. § 3--Calvo, I. §§ - 81-106--Fiore, I. Nos. 321-331, and Code, Nos. 119-141--Martens, - I. §§ 65-69. - -[Sidenote: Important in contradistinction to Indifferent Changes.] - -§ 76. The existence of International Persons is exposed to the flow of -things and times. There is a constant and gradual change in their -citizens through deaths and births, emigration, and immigration. There -is a frequent change in those individuals who are at the head of the -States, and there is sometimes a change in the form of their -governments, or in their dynasties if they are monarchies. There are -sometimes changes in their territories through loss or increase of parts -thereof, and there are sometimes changes regarding their independence -through partial or total loss of the same. Several of these and other -changes in the condition and appearance of International Persons are -indifferent to International Law, although they may be of great -importance for the inner development of the States concerned and -directly or indirectly for international policy. Those changes, on the -other hand, which are, or may be, of importance to International Law -must be divided into three groups according to their influence upon the -character of the State concerned as an International Person. For some of -these changes affect a State as an International Person, others do not; -again, others extinguish a State as an International Person altogether. - -[Sidenote: Changes not affecting States as International Persons.] - -§ 77. A State remains one and the same International Person in spite of -changes in its headship, in its dynasty, in its form, in its rank and -title, and in its territory. These changes cannot be said to be -indifferent to International Law. Although strictly no notification to -and recognition by foreign Powers are necessary, according to the Law of -Nations, in case of a change in the headship of a State or in its entire -dynasty, or if a monarchy becomes a republic or _vice versa_, no -official intercourse is possible between the Powers refusing recognition -and the State concerned. Although, further, a State can assume any title -it likes, it cannot claim the privileges of rank connected with a title -if foreign States refuse recognition. And although, thirdly, a State can -dispose according to discretion of parts of its territory and acquire as -much territory as it likes, foreign Powers may intervene for the purpose -of maintaining a balance of power or on account of other vital -interests. - -But whatever may be the importance of such changes, they neither affect -a State as an International Person, nor affect the personal identity of -the States concerned. France, for instance, has retained her personal -identity from the time the Law of Nations came into existence until the -present day, although she acquired and lost parts of her territory, -changed her dynasty, was a kingdom, a republic, an empire, again a -kingdom, again a republic, again an empire, and is now, finally as it -seems, a republic. All her international rights and duties as an -International Person remained the very same throughout the centuries in -spite of these important changes in her condition and appearance. Even -such loss of territory as occasions the reduction of a Great Power to a -small Power, or such increase of territory and strength as turns a small -State into a Great Power, does not affect a State as an International -Person. Thus, although through the events of the years 1859-1861 -Sardinia acquired the whole territory of the Italian Peninsula and -turned into the Great Power of Italy, she remained one and the same -International Person. - -[Sidenote: Changes affecting States as International Persons.] - -§ 78. Changes which affect States as International Persons are of -different character. - -(1) As in a Real Union the member-States of the union, although fully -independent, make one International Person,[108] two States which -hitherto were separate International Persons are affected in that -character by entering into a Real Union. For through that change they -appear henceforth together as one and the same International Person. And -should this union be dissolved, the member-States are again affected, -for they now become again separate International Persons. - -[Footnote 108: See below, § 87, where the character of the Real Union is -fully discussed.] - -(2) Other changes affecting States as International Persons are such -changes as involve a partial loss of independence on the part of the -States concerned. Many restrictions may be imposed upon States without -interfering with their independence proper,[109] but certain -restrictions involve inevitably a partial loss of independence. Thus if -a hitherto independent State comes under the suzerainty of another State -and becomes thereby a half-Sovereign State, its character as an -International Person is affected. The same is valid with regard to a -hitherto independent State which comes under the protectorate of another -State. Again, if several hitherto independent States enter into a -Federal State, they transfer a part of their sovereignty to the Federal -State and become thereby part-Sovereign States. On the other hand, if a -vassal State or a State under protectorate is freed from the suzerainty -or protectorate, it is thereby affected as an International Person, -because it turns now into a full Sovereign State. And the same is valid -with regard to a member-State of a Federal State which leaves the union -and gains the condition of a full Sovereign State. - -[Footnote 109: See below, §§ 126-127, where the different kinds of these -restrictions are discussed.] - -(3) States which become permanently neutralised are thereby also -affected in their character as International Persons, although their -independence remains untouched. But permanent neutralisation alters the -condition of a State so much that it thereby becomes an International -Person of a particular kind. - -[Sidenote: Extinction of International Persons.] - -§ 79. A State ceases to be an International Person when it ceases to -exist. Theoretically such extinction of International Persons is -possible through emigration or the perishing of the whole population of -a State, or through a permanent anarchy within a State. But it is -evident that such cases will hardly ever occur in fact. Practical cases -of extinction of States are: Merger of one State into another, -annexation after conquest in war, breaking up of a State into several -States, and breaking up of a State into parts which are annexed by -surrounding States. - -By voluntarily merging into another State, a State loses all its -independence and becomes a mere part of another. In this way the Duchy -of Courland merged in 1795 into Russia, the two Principalities of -Hohenzollern-Hechingen and Hohenzollern-Sigmaringen in 1850 into -Prussia, the Congo Free State in 1908 into Belgium, and Korea in 1910 -into Japan. And the same is the case if a State is subjugated by -another. In this way the Orange Free State and the South African -Republic were absorbed by Great Britain in 1901. An example of the -breaking up of a State into different States is the division of the -Swiss canton of Basle into Basel-Stadt and Basel-Land in 1833. And an -example of the breaking up of a State into parts which are annexed by -surrounding States is the absorption of Poland by Russia, Austria, and -Prussia in 1795. - - -IV - -SUCCESSION OF INTERNATIONAL PERSONS[110] - - Grotius, II. c. 9 and 10--Pufendorf, VIII. c. 12--Hall, §§ - 27-29--Phillimore, I. § 137--Lawrence, § 49--Halleck, I. pp. - 89-92--Taylor, §§ 164-168--Westlake, I. pp. 68-83--Wharton, I. § - 5--Moore, I. §§ 92-99--Wheaton, §§ 28-32--Bluntschli, §§ - 47-50--Hartmann, § 12--Heffter, § 25--Holtzendorff in - Holtzendorff, II. pp. 33-47--Liszt, § 23--Ullmann, § 32--Bonfils, - Nos. 216-233--Despagnet, Nos. 89-102--Pradier-Fodéré, I. Nos. - 156-163--Nys, I. pp. 399-401--Rivier, I. § 3, pp. 69-75 and p. - 438--Calvo, I. §§ 99-103--Fiore, I. Nos. 349-366--Martens, I. § - 67--Appleton, "Des effets des annexions sur les dettes de l'état - démembré ou annexé" (1895)--Huber, "Die Staatensuccession" - (1898)--Keith, "The Theory of State Succession, with special - reference to English and Colonial Law" (1907)--Cavaglieri, "La - dottrina della successione di stato a stato, &c." (1910)--Richards - in _The Law Magazine and Review_, XXVIII. (1903), pp. - 129-141--Keith in Z.V. III. (1909), pp. 618-648--Hershey in A.J. - V. (1911), pp. 285-297. - -[Footnote 110: The following text treats only of the broad outlines of -the subject, as the practice of the States has hardly settled more than -general principles. Details must be studied in Huber, "Die -Staatensuccession" (1898), and Keith, "The Theory of State Succession, -&c." (1907); the latter writer's analysis of cases in Z.V. III. (1909), -pp. 618-648, is likewise very important.] - -[Sidenote: Common Doctrine regarding Succession of International -Persons.] - -§ 80. Although there is no unanimity among the writers on International -Law with regard to the so-called succession of International Persons, -nevertheless the following common doctrine can be stated to exist. - -A succession of International Persons occurs when one or more -International Persons take the place of another International Person, in -consequence of certain changes in the latter's condition. - -Universal succession takes place when one International Person is -absorbed by another, either through subjugation or through voluntary -merger. And universal succession further takes place when a State breaks -up into parts which either become separate International Persons of -their own or are annexed by surrounding International Persons. - -Partial succession takes place, first, when a part of the territory of -an International Person breaks off in a revolt and by winning its -independence becomes itself an International Person; secondly, when one -International Person acquires a part of the territory of another through -cession; thirdly, when a hitherto full Sovereign State loses part of its -independence through entering into a Federal State, or coming under -suzerainty or under a protectorate, or when a hitherto not-full -Sovereign State becomes full Sovereign; fourthly, when an International -Person becomes a member of a Real Union or _vice versa_. - -Nobody ever maintained that on the successor devolve all the rights and -duties of his predecessor. But after stating that a succession takes -place, the respective writers try to educe the consequences and to make -out what rights and duties do, and what do not, devolve. - -Several writers,[111] however, contest the common doctrine and maintain -that a succession of International Persons never takes place. Their -argument is that the rights and duties of an International Person -disappear with the extinguished Person or become modified according to -the modifications an International Person undergoes through losing part -of its sovereignty. - -[Footnote 111: See Gareis, pp. 66-70, who discusses the matter with -great clearness, and Liszt, § 23.] - -[Sidenote: How far Succession actually takes place.] - -§ 81. If the real facts of life are taken into consideration, the common -doctrine cannot be upheld. To say that succession takes place in such -and such cases and to make out afterwards what rights and duties -devolve, shows a wrong method of dealing with the problem. It is certain -that no _general_ succession takes place according to the Law of -Nations. With the extinction of an International Person disappear its -rights and duties as a person. But it is equally wrong to maintain that -no succession whatever occurs. For nobody doubts that certain rights and -duties actually and really devolve upon an International Person from its -predecessor. And since this devolution takes place through the very fact -of one International Person following another in the possession of State -territory, there is no doubt that, as far as these devolving rights and -duties are concerned, a succession of one International Person to the -rights and duties of another really does take place. But no general rule -can be laid down concerning all the cases in which a succession takes -place. These cases must be discussed singly. - -[Sidenote: Succession in consequence of Absorption.] - -§ 82. When a State merges voluntarily into another State--as, for -instance, Korea in 1910 did into Japan--or when a State is subjugated by -another State, the latter remains one and the same International Person -and the former becomes totally extinct as an International Person. No -succession takes place, therefore, with regard to rights and duties of -the extinct State arising either from the character of the latter as an -International Person or from its purely political treaties. Thus -treaties of alliance or of arbitration or of neutrality or of any other -political nature fall to the ground with the extinction of the State -which concluded them. They are personal treaties, and they naturally, -legally, and necessarily presuppose the existence of the contracting -State. But it is controversial whether treaties of commerce, -extradition, and the like, of the extinct State remain valid and -therefore a succession takes place. The majority of writers correctly, I -think, answer the question in the negative, because such treaties, -although they are non-political in a sense, possess some prominent -political traits.[112] - -[Footnote 112: On the whole question concerning the extinction of -treaties in consequence of the absorption of a State by another, see -Moore, V. § 773, and below, § 548. When, in 1910, Korea merged into -Japan, the latter published a Declaration--see Martens, N.R.G. 3rd Ser. -IV. p. 26--containing the following articles with regard to the treaty -obligations of the extinct State of Korea:-- - -1. Treaties hitherto concluded by Korea with foreign Powers ceasing to -be operative, Japan's existing treaties will, so far as practicable, be -applied to Korea. Foreigners resident in Korea will, so far as -conditions permit, enjoy the same rights and immunities as in Japan -proper, and the protection of their legally acquired rights subject in -all cases to the jurisdiction of Japan. The Imperial Government of Japan -is ready to consent that the jurisdiction in respect of the cases -actually pending in any foreign Consular Court in Korea at the time the -Treaty of Annexation takes effect shall remain in such Court until final -decision. - -2. Independently of any conventional engagements formerly existing on -the subject, the Imperial Government of Japan will for a period of ten -years levy upon goods imported into Korea from foreign countries or -exported from Korea to foreign countries and upon foreign vessels -entering any of the open ports of Korea the same import or export duties -and the same tonnage dues as under the existing schedules. The same -import or export duties and tonnage dues as those to be levied upon the -aforesaid goods and vessels will also for a period of ten years be -applied in respect of goods imported into Korea from Japan or exported -from Korea to Japan and Japanese vessels entering any of the open ports -of Korea. - -3. The Imperial Government of Japan will also permit for a period of ten -years vessels under flags of the Powers having treaties with Japan to -engage in the coasting trade between the open ports of Korea and between -those ports and any open port of Japan. - -4. The existing open ports of Korea, with the exemption of Masampo, will -be continued as open ports, and in addition Shiwiju will be newly opened -so that vessels, foreign as well as Japanese, will there be admitted and -goods may be imported into and exported from these ports.] - -A real succession takes place, however, first, with regard to such -international rights and duties of the extinct State as are locally -connected with its land, rivers, main roads, railways, and the like. -According to the principle _res transit cum suo onere_, treaties of the -extinct State concerning boundary lines, repairing of main roads, -navigation on rivers, and the like, remain valid, and all rights and -duties arising from such treaties of the extinct State devolve on the -absorbing State. - -A real succession, secondly, takes place with regard to the fiscal -property and the fiscal funds of the extinct State. They both accrue to -the absorbing State _ipso facto_ by the absorption of the extinct -State.[113] But the debts[114] of the extinct State must, on the other -hand, also be taken over by the absorbing State.[115] The private -creditor of an extinct State certainly acquires no right[116] by -International Law against the absorbing State, since the Law of Nations -is a law between States only and exclusively. But if he is a foreigner, -the right of protection due to his home State enables the latter to -exercise pressure upon the absorbing State for the purpose of making it -fulfil its international duty to take over the debts of the extinct -State. Some jurists[117] go so far as to maintain that the succeeding -State must take over the debts of the extinct State, even when they are -higher than the value of the accrued fiscal property and fiscal funds. -But I doubt whether in such cases the practice of the States would -follow that opinion. On the other hand, a State which has subjugated -another would be compelled[118] to take over even such obligations as -have been incurred by the annexed State for the immediate purpose of the -war which led to its subjugation.[119] - -[Footnote 113: This was recognised by the High Court of Justice in 1866 -in the case of the United States _v._ Prioleau. See Scott, "Cases on -International Law" (1902), p. 85.] - -[Footnote 114: See Moore, I. § 97, and Appleton, "Des effets des -annexions de territoires sur les dettes, &c." (1895).] - -[Footnote 115: This is almost generally recognised by writers on -International Law and the practice of the States. (See Huber, op. cit. -pp. 156 and 282, note 449.) The Report of the Transvaal Concessions -Commission (see British State Papers, South Africa, 1901, Cd. 623), -although it declares (p. 7) that "it is clear that a State which has -annexed another is not legally bound by any contracts made by the State -which has ceased to exist," nevertheless agrees that "the modern usage -of nations has tended in the acknowledgment of such contracts." It may, -however, safely be maintained that not a usage, but a real rule of -International Law, based on custom, is in existence with regard to this -point. (See Hall, § 29, and Westlake in _The Law Quarterly Review_, -XVII. (1901), pp. 392-401, XXXI. (1905), p. 335, and now Westlake, I. -pp. 74-82.)] - -[Footnote 116: This is the real portent of the judgment in the case of -Cook _v._ Sprigg, L.R. (1899), A.C. 572, and in the case of the West -Rand Central Gold Mining Co. _v._ The King (1905), 2 K.B. 391. In so far -as the latter judgment denies the existence of a rule of International -Law that compels a subjugator to pay the debts of the subjugated State, -its arguments are in no wise decisive. An International Court would -recognise such a rule.] - -[Footnote 117: See Martens, I. § 67; Heffter, § 25; Huber, op. cit. p. -158.] - -[Footnote 118: See the Report of the Transvaal Concession Commission, p. -9, which maintains the contrary. Westlake (I. p. 78) adopts the -reasoning of this report, but his arguments are not decisive. The -lending of money to a belligerent under ordinary mercantile -conditions--see Barclay in _The Law Quarterly Review_, XXI. (1905), p. -307--is not prohibited by International Law, although the carriage of -such funds in cash on neutral vessels to the enemy falls under the -category of carriage of contraband, and can be punished by the -belligerents. (See below, Vol. II. § 352.)] - -[Footnote 119: The question how far concessions granted by a subjugated -State to a private individual or to a company must be upheld by the -subjugating State, is difficult to answer in its generality. The merits -of each case would seem to have to be taken into consideration. See -Westlake, I. p. 82; Moore, I. § 98; Gidel, "Des effets de l'annexion sur -les concessions" (1904).] - -The case of a Federal State arising--like the German Empire in -1871--above a number of several hitherto full Sovereign States also -presents, with regard to many points, a case of State succession.[120] -However, no hard-and-fast rules can be laid down concerning it, since -everything depends upon the question whether the Federal State is one -which--like all those of America--totally absorbs all international -relations of the member-States, or whether it absorbs--like the German -Empire and Switzerland--these relations to a greater extent only.[121] - -[Footnote 120: See Huber, op. cit. pp. 163-169, and Keith, op. cit. pp. -92-98.] - -[Footnote 121: See below, § 89.] - -[Sidenote: Succession in consequence of Dismemberment.] - -§ 83. When a State breaks up into fragments which themselves become -States and International Persons, or which are annexed by surrounding -States, it becomes extinct as an International Person, and the same -rules are valid as regards the case of absorption of one State by -another. A difficulty is, however, created when the territory of the -extinct State is absorbed by several States. Succession actually takes -place here too, first, with regard to the international rights and -duties locally connected with those parts of the territory which the -respective States have absorbed. Succession takes place, secondly, with -regard to the fiscal property and the fiscal funds which each of the -several absorbing States finds on the part of the territory it absorbs. -And the debts of the extinct State must be taken over. But the case is -complicated through the fact that there are several successors to the -fiscal property and funds, and the only rule which can be laid down is -that proportionate parts of the debts must be taken over by the -different successors. - -When--as in the case of Sweden-Norway in 1905--a Real Union[122] is -dissolved and the members become International Persons of their own, a -succession likewise takes place. All treaties concluded by the Union -devolve upon the former members, except those which were concluded by -the Union for one member only--_e.g._ by Sweden-Norway for Norway--and -which, therefore, devolve upon such former member only, and, further, -except those which concerned the very Union and lose all meaning by its -dissolution. - -[Footnote 122: See below, § 87.] - -[Sidenote: Succession in case of Separation or Cession.] - -§ 84. When in consequence of war or otherwise one State cedes a part of -its territory to another, or when a part of the territory of a State -breaks off and becomes a State and an International Person of its own, -succession takes place with regard to such international rights and -duties of the predecessor as are locally connected with the part of the -territory ceded or broken off, and with regard to the fiscal property -found on that part of the territory. It would only be just, if the -successor had to take over a corresponding part of the debt of its -predecessor, but no rule of International Law concerning this point can -be said to exist, although many treaties have stipulated a devolution of -a part of the debt of the predecessor upon the successor.[123] Thus, for -instance, arts. 9, 33, 42 of the Treaty of Berlin[124] of 1878 stipulate -that Bulgaria, Montenegro, and Servia should take over a part of the -Turkish debt. On the other hand, the United States refused, after the -cession of Cuba in 1898, to take over from Spain the so-called Cuban -debt--that is, the debt which was settled by Spain on Cuba before the -war.[125] Spain argued that it was not intended to transfer to the -United States a proportional part of the debt of Spain, but only such -debt as attached individually to the island of Cuba. The United States, -however, met this argument by the correct assertion that the debt -concerned was not one incurred by Cuba, but by Spain, and settled by her -on Cuba. - -[Footnote 123: Many writers, however, maintain that there is such a rule -of International Law. See Huber, op. cit. Nos. 125-135 and 205, where -the respective treaties are enumerated.] - -[Footnote 124: See Martens, N.R.G. 2nd Ser. III. p. 449.] - -[Footnote 125: See Moore, III. § 97, pp. 351-385.] - - -V - -COMPOSITE INTERNATIONAL PERSONS - - Pufendorf, VII. c. 5--Hall, § 4--Westlake, I. pp. - 31-37--Phillimore, I. §§ 71-74, 102-105--Twiss, I. §§ - 37-60--Halleck, I. pp. 70-74--Taylor, §§ 120-130--Wheaton, §§ - 39-51--Moore, I. §§ 6-11--Hartmann, § 70--Heffter, §§ - 20-21--Holtzendorff in Holtzendorff, II. pp. 118-141--Liszt, § - 6--Ullmann, §§ 20-24--Bonfils, Nos. 165-174--Despagnet, Nos. - 109-126--Pradier-Fodéré, I. Nos. 117-123--Mérignhac, II. pp. - 6-42--Nys, I. pp. 367-378--Rivier, I. §§ 5-6--Calvo, I. §§ - 44-61--Fiore, I. Nos. 335-339, and Code, Nos. 96-104--Martens, I. - §§ 56-59--Pufendorf, "De systematibus civitatum" (1675)--Jellinek, - "Die Lehre von den Staatenverbindungen" (1882)--Borel, "Etude sur - la souveraineté de l'Etat fédératif" (1886)--Brie, "Theorie der - Staatenverbindungen" (1886)--Hart, "Introduction to the Study of - Federal Government" in "Harvard Historical Monographs," 1891 - (includes an excellent bibliography)--Le Fur, "Etat fédéral et - confédération d'Etats" (1896)--Moll, "Der Bundesstaatsbegriff in - den Vereinigten Staaten von America" (1905)--Ebers, "Die Lehre vom - Staatenbunde" (1910). - -[Sidenote: Real and apparent Composite International Persons.] - -§ 85. International Persons are as a rule single Sovereign States. In -such single States there is one central political authority as -Government which represents the State, within its borders as well as -without in the international intercourse with other International -Persons. Such single States may be called _simple_ International -Persons. And a State remains a simple International Person, although it -may grant so much internal independence to outlying parts of its -territory that these parts become in a sense States themselves. Great -Britain is a simple International Person, although the Dominion of -Canada, Newfoundland, the Commonwealth of Australia, New Zealand, and -the Union of South Africa, are now States of their own, because Great -Britain is alone Sovereign and represents exclusively the British Empire -within the Family of Nations. - -Historical events, however, have created, in addition to the simple -International Persons, _composite_ International Persons. A composite -International Person is in existence when two or more Sovereign States -are linked together in such a way that they take up their position -within the Family of Nations either exclusively or at least to a great -extent as one single International Person. History has produced two -different kinds of such composite International Persons--namely, Real -Unions and Federal States. In contradistinction to Real Unions and -Federal States, a so-called Personal Union and the union of so-called -Confederated States are not International Persons.[126] - -[Footnote 126: I cannot agree with Westlake (I. p. 37) that "the space -which some writers devote to the distinctions between the different -kinds of union between States" is "disproportioned ... to their -international importance." Very important questions are connected with -these distinctions. The question, for instance, whether a diplomatic -envoy sent by Bavaria to this country must be granted the privileges due -to a foreign diplomatic envoy depends upon the question whether Bavaria -is an International Person in spite of her being a member-State of the -German Empire.] - -[Sidenote: States in Personal Union.] - -§ 86. A Personal Union is in existence when two Sovereign States and -separate International Persons are linked together through the -accidental fact that they have the same individual as monarch. Thus a -Personal Union existed from 1714 to 1837 between Great Britain and -Hanover, from 1815 to 1890 between the Netherlands and Luxemburg, and -from 1885 to 1908 between Belgium and the former Congo Free State. At -present there is no Personal Union in existence. A Personal Union is -not, and is in no point treated as though it were, an International -Person, and its two Sovereign member-States remain separate -International Persons. Theoretically it is even possible that they make -war against each other, although practically this will never occur. If, -as sometimes happens, they are represented by one and the same -individual as diplomatic envoy, such individual is the envoy of both -States at the same time, but not the envoy of the Personal Union. - -[Sidenote: States in Real Union.] - -§ 87. A Real Union[127] is in existence when two Sovereign States are by -an international treaty, recognised by other Powers, linked together for -ever under the same monarch, so that they make one and the same -International Person. A Real Union is not itself a State, but merely a -union of two full Sovereign States which together make one single but -composite International Person. They form a compound Power, and are by -the treaty of union prevented from making war against each other. On the -other hand, they cannot make war separately against a foreign Power, nor -can war be made against one of them separately. They can enter into -separate treaties of commerce, extradition, and the like, but it is -always the Union which concludes such treaties for the separate States, -as they separately are not International Persons. It is, for instance, -Austria-Hungary which concludes an international treaty of extradition -between Hungary and a foreign Power. The only Real Union at present in -existence outside the German Empire[128] is that of Austria-Hungary, -that of Sweden-Norway having been dissolved in 1905. - -[Footnote 127: See Blüthgen in Z.V. I. (1906), pp. 237-263.] - -[Footnote 128: There is a Real Union between Saxe-Coburg and Saxe-Gotha -within the German Empire.] - -Austria-Hungary became a Real Union in 1723. In 1849, Hungary was -united with Austria, but in 1867 Hungary became again a separate -Sovereign State and the Real Union was re-established. Their army, navy, -and foreign ministry are united. The Emperor-King declares war, makes -peace, concludes alliances and other treaties, and sends and receives -the same diplomatic envoys for both States. - -Sweden-Norway became a Real Union[129] in 1814. The King could declare -war, make peace, conclude alliances and other treaties, and send and -receive the same diplomatic envoys for both States. The Foreign -Secretary of Sweden managed at the same time the foreign affairs of -Norway. Both States had, however, in spite of the fact that they made -one and the same International Person, different commercial and naval -flags. The Union was peacefully dissolved by the Treaty of Karlstad of -October 26, 1905. Norway became a separate kingdom, the independence and -integrity of which is guaranteed by Great Britain, France, Germany, and -Russia by the Treaty of Christiania of November 2, 1907.[130] - -[Footnote 129: This is not universally recognised. Phillimore, I. § 74, -maintains that there was a Personal Union between Sweden and Norway, and -Twiss, I. § 40, calls it a Federal Union.] - -[Footnote 130: See above, § 50, p. 75.] - -[Sidenote: Confederated States (Staatenbund).] - -§ 88. Confederated States (Staatenbund) are a number of full Sovereign -States linked together for the maintenance of their external and -internal independence by a recognised international treaty into a union -with organs of its own, which are vested with a certain power over the -member-States, but not over the citizens of these States. Such a union -of Confederated States is not any more itself a State than a Real Union -is; it is merely an International Confederation of States, a society of -international character, since the member-States remain full Sovereign -States and separate International Persons. Consequently, the union of -Confederated States is not an International Person, although it is for -some parts so treated on account of its representing the compound power -of the full Sovereign member-States. The chief and sometimes the only -organ of the union is a Diet, where the member-States are represented by -diplomatic envoys. The power vested in the Diet is an International -Power which does not in the least affect the full sovereignty of the -member-States. That power is essentially nothing else than the right of -the body of the members to make war against such a member as will not -submit to those commandments of the Diet which are in accordance with -the Treaty of Confederation, war between the member-States being -prohibited in all other cases. - -History has shown that Confederated States represent an organisation -which in the long run gives very little satisfaction. It is for that -reason that the three important unions of Confederated States of modern -times--namely, the United States of America, the German, and the Swiss -Confederation--have turned into unions of Federal States. Notable -historic Confederations are those of the Netherlands from 1580 to 1795, -the United States of America from 1778 to 1787, Germany from 1815 to -1866, Switzerland from 1291 to 1798 and from 1815 to 1848, and the -Confederation of the Rhine (Rheinbund) from 1806 to 1813. At present -there is no union of Confederated States. The last in existence, the -major Republic of Central America,[131] which comprised the three full -Sovereign States of Honduras, Nicaragua, and San Salvador, and was -established in 1895, came to an end in 1898. - -[Footnote 131: See N.R.G. 2nd Ser. XXXII. pp. 276-292.] - -[Sidenote: Federal States (Bundesstaaten).] - -§ 89. A Federal State[132] is a perpetual union of several Sovereign -States which has organs of its own and is invested with power, not only -over the member-States, but also over their citizens. The union is -based, first, on an international treaty of the member-States, and, -secondly, on a subsequently accepted constitution of the Federal State. -A Federal State is said to be a real State side by side with its -member-States because its organs have a direct power over the citizens -of those member-States. This power was established by American[133] -jurists of the eighteenth century as a characteristic distinction of a -Federal State from Confederated States, and Kent as well as Story, the -two later authorities on the Constitutional Law of the United States, -adopted this distinction, which is indeed kept up until to-day by the -majority of writers on politics. Now if a Federal State is recognised as -a State of its own, side by side with its member-States, it is evident -that sovereignty must be divided between the Federal State on the one -hand, and, on the other, the member-States. This division is made in -this way, that the competence over one part of the objects for which a -State is in existence is handed over to the Federal State, whereas the -competence over the other part remains with the member-States. Within -its competence the Federal State can make laws which bind the citizens -of the member-States directly without any interference of these -member-States. On the other hand, the member-States are totally -independent as far as _their_ competence reaches. - -[Footnote 132: The distinction between Confederated States and a Federal -State is not at all universally recognised, and the terminology is -consequently not at all the same with all writers on International Law.] - -[Footnote 133: When in 1787 the draft of the new Constitution of the -United States, which had hitherto been Confederated States only, was -under consideration by the Congress at Philadelphia, three members of -the Congress--namely, Alexander Hamilton, James Madison, and John -Jay--made up their minds to write newspaper articles on the draft -Constitution with the intention of enlightening the nation which had to -vote for the draft. For this purpose they divided the different points -among themselves and treated them separately. All these articles, which -were not signed with the names of their authors, appeared under the -common title "The Federalist." They were later on collected into -book-form and have been edited several times. It is especially Nos. 15 -and 16 of "The Federalist" which establish the difference between -Confederated States and a Federal State in the way mentioned in the text -above.] - -For International Law this division of competence is only of interest in -so far as it concerns competence in _international_ matters. Since it is -always the Federal State which is competent to declare war, make peace, -conclude treaties of alliance and other political treaties, and send and -receive diplomatic envoys, whereas no member-State can of itself declare -war against a foreign State, make peace, conclude alliances and other -political treaties, the Federal State, if recognised, is certainly an -International Person of its own, with all the rights and duties of a -sovereign member of the Family of Nations. On the other hand, the -international position of the member-States is not so clear. It is -frequently maintained that they have totally lost their position within -the Family of Nations. But this opinion cannot stand if compared with -the actual facts. Thus, the member-States of the Federal State of -Germany have retained their competence to send and receive diplomatic -envoys, not only in intercourse with one another, but also with foreign -States. Further, the reigning monarchs of these member-States are still -treated by the practice of the States as heads of Sovereign States, a -fact without legal basis if these States were no longer International -Persons. Thirdly, the member-States of Germany as well as of Switzerland -have retained their competence to conclude international treaties -between themselves without the consent of the Federal State, and they -have also retained the competence to conclude international treaties -with foreign States as regards matters of minor interest. If these -facts[134] are taken into consideration, one is obliged to acknowledge -that the member-States of a Federal State can be International Persons -in a degree. Full subjects of International Law, International Persons -with all the rights and duties regularly connected with the membership -of the Family of Nations, they certainly cannot be. Their position, if -any, within this circle is overshadowed by their Federal State, they are -part-Sovereign States, and they are, consequently, International Persons -for some parts only. - -[Footnote 134: See Riess, "Auswärtige Hoheitsrechte der deutschen -Einzelstaaten" (1905).] - -But it happens frequently that a Federal State assumes _in every way_ -the external representation of its member-States, so that, so far as -international relations are concerned, the member-States do not make an -appearance at all. This is the case with the United States of America -and all those other American Federal States whose Constitution is formed -according to the model of that of the United States. Here the -member-States are sovereign too, but only with regard to _internal_[135] -affairs. All their external sovereignty being absorbed by the Federal -State, it is certainly a fact that they are not International Persons at -all so long as this condition of things lasts. - -[Footnote 135: The Courts of the United States of America have always -upheld the theory that the United States are sovereign as to all powers -of government actually surrendered, whereas each member-State is -sovereign as to all powers reserved. See Merriam, "History of the Theory -of Sovereignty since Rousseau" (1900), p. 163.] - -This being so, two classes of Federal States must be distinguished[136] -according to whether their member-States are or are not International -Persons, although Federal States are in any case composite International -Persons. And whenever a Federal State comes into existence which leaves -the member-States for some parts International Persons, the recognition -granted to it by foreign States must include their readiness to -recognise for the future, on the one hand, the body of the -member-States, the Federal State, as one composite International Person -regarding all important matters, and, on the other hand, the single -member-States as International Persons with regard to less important -matters and side by side with the Federal State. That such a condition -of things is abnormal and illogical cannot be denied, but the very -existence of a Federal State side by side the member-States is quite as -abnormal and illogical. - -[Footnote 136: This distinction is of the greatest importance and ought -to be accepted by the writers on the science of politics.] - -The Federal States in existence are the following:--The United States of -America since 1787, Switzerland since 1848, Germany since 1871, Mexico -since 1857, Argentina since 1860, Brazil since 1891, Venezuela since -1893. - - -VI - -VASSAL STATES - - Hall, § 4--Westlake, I. pp. 25-27--Lawrence, § 39--Phillimore, I. - §§ 85-99--Twiss, I. §§ 22-36, 61-73--Taylor, §§ 140-144--Wheaton, - § 37--Moore, I. § 13--Bluntschli, §§ 76-77--Hartmann, § - 16--Heffter, §§ 19 and 22--Holtzendorff in Holtzendorff, II. pp. - 98-117--Liszt, § 6--Ullmann, § 25--Gareis, § 15--Bonfils, Nos. - 188-190--Despagnet, Nos. 127-129--Mérignhac, I. pp. - 201-218--Pradier-Fodéré, I. Nos. 109-112--Nys, I. pp. - 357-364--Rivier, I. § 4--Calvo, I. §§ 66-72--Fiore, I. No. 341, - and Code, Nos. 105-110--Martens, I. §§ 60-61--Stubbs, "Suzerainty" - (1884)--Baty, "International Law in South Africa" (1900), pp. - 48-68--Boghitchévitch, "Halbsouveränität" (1903). - -[Sidenote: The Union between Suzerain and Vassal State.] - -§ 90. The union and the relations between a Suzerain and its Vassal -State create much difficulty in the science of the Law of Nations. As -both are separate States, a union of States they certainly make, but it -would be wrong to say that the Suzerain State is, like the Real Union of -States or the Federal State, a composite International Person. And it -would be equally wrong to maintain either that a Vassal State cannot be -in any way a separate International Person of its own, or that it is an -International Person of the same kind as any other State. What makes the -matter so complicated, is the fact that a general rule regarding the -relation between the suzerain and vassal, and, further, regarding the -position, if any, of the vassal within the Family of Nations, cannot be -laid down, as everything depends upon the special case. What can and -must be said is that there are some States in existence which, although -they are independent of another State as regards their internal affairs, -are as regards their international affairs either absolutely or for the -most part dependent upon another State. They are called -half-Sovereign[137] States because they are sovereign within their -borders but not without. The full Sovereign State upon which such -half-Sovereign States are either absolutely or for the most part -internationally dependent, is called the Suzerain State. - -[Footnote 137: In contradistinction to the States which are under -suzerainty or protectorate, and which are commonly called -_half_-Sovereign States, I call member-States of a Federal State -_part_-Sovereign States.] - -Suzerainty is a term which originally was used for the relation between -the feudal lord and his vassal; the lord was said to be the suzerain of -the vassal, and at that time suzerainty was a term of Constitutional Law -only. With the disappearance of the feudal system, suzerainty of this -kind likewise disappeared. Modern suzerainty contains only a few rights -of the Suzerain State over the Vassal State which can be called -constitutional rights. The rights of the Suzerain State over the Vassal -are principally international rights, of whatever they may consist. -Suzerainty is by no means sovereignty. If it were, the Vassal State -could not be Sovereign in its domestic affairs and could never have any -international relations whatever of its own. And why should suzerainty -be distinguished from sovereignty if it be a term synonymous with -sovereignty? One may correctly maintain that _suzerainty is a kind of -international guardianship_, since the Vassal State is either absolutely -or mainly represented internationally by the Suzerain State. - -[Sidenote: International Position of Vassal States.] - -§ 91. The fact that the relation between the suzerain and the vassal -always depends upon the special case, excludes the possibility of laying -down a general rule as regards the position of Vassal States within the -Family of Nations. It is certain that a Vassal State as such need not -have any position whatever within the Family of Nations. In every case -in which a Vassal State has absolutely no relations whatever with other -States, since the suzerain absorbs these relations entirely, such vassal -remains nevertheless a half-Sovereign State on account of its internal -independence, but it has no position whatever within the Family of -Nations, and consequently is for no part whatever an International -Person and a subject of International Law. This is the position of the -Indian Vassal States of Great Britain, which have no international -relations whatever either between themselves or with foreign -States.[138] Yet instances can be given which demonstrate that Vassal -States can have some small and subordinate position within that family, -and that they must in consequence thereof in some few points be -considered as International Persons. Thus Egypt can conclude commercial -and postal treaties with foreign States without the consent of suzerain -Turkey, and Bulgaria could, while she was under Turkish Suzerainty, -conclude treaties regarding railways, post, and the like. Thus, further, -Egypt can send and receive consuls as diplomatic agents, and so could -Bulgaria while she was a Turkish Vassal State. Thus, thirdly, the former -South African Republic, although in the opinion of Great Britain under -her suzerainty, could conclude all kinds of treaties with other States, -provided Great Britain did not interpose a _veto_ within six months -after receiving a copy of the draft treaty, and was absolutely -independent in concluding treaties with the neighbouring Orange Free -State. Again, Egypt possesses, since 1898, together with Great Britain -_condominium_[139] over the Soudan, which means that they exercise -conjointly sovereignty over this territory. Although Vassal States have -not the right to make war independently of their suzerain, Bulgaria, at -the time a Vassal State, nevertheless fought a war against the -full-Sovereign Servia in 1885, and Egypt conquered the Soudan conjointly -with Great Britain in 1898. - -[Footnote 138: See Westlake, Chapters, pp. 211-219; Westlake, I. pp. -41-43, and again Westlake in _The Law Quarterly Review_, XXVI. (1910), -pp. 312-319.--See also Lee-Warner, "The Native States of India" (1910), -pp. 254-279.] - -[Footnote 139: See below, § 171.] - -How could all these and other facts be explained, if Vassal States could -never for some small part be International Persons? - -Side by side with these facts stand, of course, other facts which show -that for the most part the Vassal State, even if it has some small -position of its own within the Family of Nations, is considered a mere -portion of the Suzerain State. Thus all international treaties concluded -by the Suzerain State are _ipso facto_ concluded for the vassal, if an -exception is not expressly mentioned or self-evident. Thus, again, war -of the suzerain is _ipso facto_ war of the vassal. Thus, thirdly, the -suzerain bears within certain limits a responsibility for actions of the -Vassal State. - -Under these circumstances it is generally admitted that the conception -of suzerainty lacks juridical precision, and experience teaches that -Vassal States do not remain half-Sovereign for long. They either shake -off suzerainty, as Roumania, Servia, and Montenegro did in 1878, and -Bulgaria[140] did in 1908, or they lose their half-Sovereignty through -annexation, as in the case of the South African Republic in 1901, or -through merger, as when the half-Sovereign Seignory of Kniephausen in -Germany merged in 1854 into its suzerain Oldenburg. - -[Footnote 140: As regards the position of Bulgaria while she was a -Vassal State under Turkish suzerainty, see Holland, "The European -Concert in the Eastern Question" (1885), pp. 277-307, and Nédjmidin, -"Völkerrechtliche Entwicklung Bulgariens" (1908).] - -Vassal States of importance which are for some parts International -Persons are, at present, Egypt,[141] and Crete.[142] They are both -under Turkish suzerainty, although Egypt is actually under the -administration of Great Britain. Samos,[143] which some writers consider -a Vassal State under Turkish suzerainty, is not half-Sovereign, but -enjoys autonomy to a vast degree. - -[Footnote 141: See Holland, "The European Concert in the Eastern -Question" (1885), pp. 89-205; Grünau, "Die staats- und völkerrechtliche -Stellung Aegyptens" (1903); Cocheris, "Situation internationale de -l'Egypte et du Soudan" (1903); Freycinet, "La question d'Egypte" (1905); -Moret in R.J. XIV. (1907), pp. 405-416; Lamba in R.G. XVII. (1910), pp. -36-55. In the case of the "Charkieh," 1873, L.R. 4 Adm. and Eccl. 59, -the Court refused to acknowledge the half-sovereignty of Egypt; see -Phillimore, I. § 99.] - -[Footnote 142: See Streit in R.G. X. (1903), pp. 399-417.] - -[Footnote 143: See Albrecht in Z.V. I. (1907), pp. 56-112.] - - -VII - -STATES UNDER PROTECTORATE - - Hall, §§ 4 and 38*--Westlake, I. pp. 22-24--Lawrence, § - 39--Phillimore, I. 75-82--Twiss, I. §§ 22-36--Taylor, §§ - 134-139--Wheaton, §§ 34-36--Moore, I. § 14--Bluntschli, § - 78--Hartmann, § 9--Heffter, §§ 19 and 22--Holtzendorff in - Holtzendorff, II. pp. 98-117--Gareis, § 15--Liszt, § 6--Ullmann, § - 26--Bonfils, Nos. 176-187--Despagnet, Nos. 130-136--Mérignhac, II. - pp. 180-220--Pradier-Fodéré, I. Nos. 94-108--Nys, I. pp. - 364-366--Rivier, I. § 4--Calvo, I. §§ 62-65--Fiore, I. § 341, and - Code, Nos. 111-118--Martens, I. §§ 60-61--Pillet in R.G. II. - (1895), pp. 583-608--Heilborn, "Das völkerrechtliche Protectorat" - (1891)--Engelhardt, "Les Protectorats, &c." (1896)--Gairal, "Le - protectorat international" (1896)--Despagnet, "Essai sur les - protectorats" (1896)--Boghitchévitch, "Halbsouveränität" (1903). - -[Sidenote: Conception of Protectorate.] - -§ 92. Legally and materially different from suzerainty is the relation -of protectorate between two States. It happens that a weak State -surrenders itself by treaty into the protection of a strong and mighty -State in such a way that it transfers the management[144] of all its -more important[145] international affairs to the protecting State. -Through such treaty an international union is called into existence -between the two States, and the relation between them is called -protectorate. The protecting State is internationally the superior of -the protected State, the latter has with the loss of the management of -its more important international affairs lost its full sovereignty and -is henceforth only a half-Sovereign State. Protectorate is, however, a -conception which, just like suzerainty, lacks exact juristic -precision,[146] as its real meaning depends very much upon the special -case. Generally speaking, protectorate may, again like suzerainty, be -called _a kind of international guardianship_. - -[Footnote 144: A treaty of protectorate must not be confounded with a -treaty of protection in which one or more strong States promise to -protect a weak State without absorbing the international relations of -the latter.] - -[Footnote 145: That the admittance of Consuls belongs to these affairs -became apparent in 1906, when Russia, after some hesitation, finally -agreed upon Japan, and not Korea, granting the _exequatur_ to the -Consul-general appointed by Russia for Korea, which was then a State -under Japanese protectorate. See below, § 427.] - -[Footnote 146: It is therefore of great importance that the parties -should make quite clear the meaning of a clause which is supposed to -stipulate a protectorate. Thus art. 17 of the Treaty of Friendship and -Commerce between Italy and Abyssinia, signed at Uccialli on May 2, -1889--see Martens, N.R.G. 2nd Ser. XVIII. p. 697--was interpreted by -Italy as establishing a protectorate over Abyssinia, but the latter -refused to recognise it.] - -[Sidenote: International position of States under Protectorate.] - -§ 93. The position of a State under protectorate within the Family of -Nations cannot be defined by a general rule, since it is the treaty of -protectorate which indirectly specialises it by enumerating the -reciprocal rights and duties of the protecting and the protected State. -Each case must therefore be treated according to its own merits. Thus -the question whether the protected State can conclude certain -international treaties and can send and receive diplomatic envoys, as -well as other questions, must be decided according to the terms of the -individual treaty of protectorate. In any case, recognition of the -protectorate on the part of third States is necessary to enable the -superior State to represent the protected State internationally. But it -is characteristic of the protectorate, in contradistinction to -suzerainty, that the protected State always has and retains for some -parts a position of its own within the Family of Nations, and that it is -always for some parts an International Person and a subject of -International Law. It is never in any respect considered a mere portion -of the superior State. It is, therefore, not necessarily a party in a -war[147] of the superior State against a third, and treaties concluded -by the superior State are not _ipso facto_ concluded for the protected -State. And, lastly, it can at the same time be under the protectorate of -two different States, which, of course, must exercise the protectorate -conjointly. - -[Footnote 147: This was recognised by the English Prize Courts during -the Crimean War with regard to the Ionian Islands, which were then still -under British protectorate; see the case of the Ionian Ships, 2 Spinks -212, and Phillimore, I. § 77.] - -In Europe there are at present only two very small States under -protectorate--namely, the republic of Andorra, under the joint -protectorate of France and Spain,[148] and the republic of San Marino, -an enclosure of Italy, which was formerly under the protectorate of the -Papal States and is now under that of Italy. The Principality of Monaco, -which was under the protectorate, first of Spain until 1693, afterwards -of France until 1815, and then of Sardinia, has now, through custom, -become a full-Sovereign State, since Italy has never[149] exercised the -protectorate. The Ionian Islands, which were under British protectorate -from 1815, merged into the Kingdom of Greece in 1863. - -[Footnote 148: This protectorate is exercised for Spain by the Bishop of -Urgel. As regards the international position of Andorra, see Vilar, -"L'Andorre" (1905).] - -[Footnote 149: This is a clear case of _desuetudo_.] - -[Sidenote: Protectorates outside the Family of Nations.] - -§ 94. Outside Europe there are numerous States under the protectorate of -European States, but all of them are non-Christian States of such a -civilisation as would not admit them to full membership of the Family of -Nations, apart from the protectorate under which they are now. And it -may therefore be questioned whether they have any real position within -the Family of Nations at all. As the protectorate over them is -recognised by third States, the latter are legally prevented from -exercising any political influence in these protected States, and, -failing special treaty rights, they have no right to interfere if the -protecting State annexes the protected State and makes it a mere colony -of its own, as, for instance, France did with Madagascar in 1896. -Protectorates of this kind are actually nothing else than the first step -to annexation.[150] Since they are based on treaties with real States, -they cannot in every way be compared with the so-called protectorates -over African tribes which European States acquire through a treaty with -the chiefs of these tribes, and by which the respective territory is -preserved for future occupation on the part of the so-called -protector.[151] But actually they always lead to annexation, if the -protected State does not succeed in shaking off by force the -protectorate, as Abyssinia did in 1896 when she shook off the pretended -Italian protectorate. - -[Footnote 150: Examples of such non-Christian States under protectorate -are Zanzibar under Great Britain and Tunis under France.] - -[Footnote 151: See below, § 226, and Perrinjaquet in R.G. XVI. (1909), -pp. 316-367.] - - -VIII - -NEUTRALISED STATES - - Westlake, I. pp. 27-30--Lawrence, §§ 43 and 225--Taylor, § - 133--Moore, I. § 12--Bluntschli, § 745--Heffter, § - 145--Holtzendorff in Holtzendorff, II. pp. 643-646--Gareis, § - 15--Liszt, § 6--Ullmann, § 27--Bonfils, Nos. 348-369--Despagnet, - Nos. 137-146--Mérignhac, II. pp. 56-65--Pradier-Fodéré, II. Nos. - 1001-1015--Nys, I. pp. 379-398--Rivier, I. § 7--Calvo, IV. §§ - 2596-2610--Piccioni's "Essai sur la neutralité perpétuelle" (2nd - ed. 1902)--Regnault, "Des effets de la neutralité perpétuelle" - (1898)--Tswettcoff, "De la situation juridique des états - neutralisés" (1895)--Morand in R.G. I. (1894), pp. - 522-537--Hagerup in R.G. XII. (1909), pp. 577-602--Nys in R.I. 2nd - Ser. II. (1900), pp. 468-583, III. (1901), p. 15--Westlake in R.I. - 2nd Ser. III. (1901), pp. 389-397--Winslow in A.J. II. (1908), pp. - 366-386--Wicker in A.J. V. (1911), pp. 639-654. - -[Sidenote: Conception of Neutralised States.] - -§ 95. A neutralised State is a State whose independence and integrity -are for all the future guaranteed by an international convention of the -Powers, under the condition that such State binds itself never to take -up arms against any other State except for defence against attack, and -never to enter into such international obligations as could indirectly -drag it into war. The reason why a State asks or consents to become -neutralised is that it is a weak State and does not want an active part -in international politics, being exclusively devoted to peaceable -developments of welfare. The reason why the Powers neutralise a weak -State may be a different one in different cases. The chief reasons have -been hitherto the balance of power in Europe and the interest in keeping -up a weak State as a so-called Buffer-State between the territories of -Great Powers. - -Not to be confounded with neutralisation of States is neutralisation of -parts of States,[152] of rivers, canals, and the like, which has the -effect that war cannot there be made and prepared. - -[Footnote 152: See below, Vol. II. § 72.] - -[Sidenote: Act and Condition of Neutralisation.] - -§ 96. Without thereby becoming a neutralised State, every State can -conclude a treaty with another State and undertake the obligation to -remain neutral if such other State enters upon war. The act through -which a State becomes a neutralised State for all the future is always -an international treaty of the Powers between themselves and between the -State concerned, by which treaty the Powers guarantee collectively the -independence and integrity of the latter State. If all the Great Powers -do not take part in the treaty, those which do not take part in it must -at least give their tacit consent by taking up an attitude which shows -that they agree to the neutralisation, although they do not guarantee -it. In guaranteeing the permanent neutrality of a State the contracting -Powers enter into the obligation not to violate on their part the -independence of the neutral State and to prevent other States from such -violation. But the neutral State becomes, apart from the guaranty, in -no way dependent upon the guarantors, and the latter gain no influence -whatever over the neutral State in matters which have nothing to do with -the guaranty. - -The condition of the neutralisation is that the neutralised State -abstains from any hostile action, and further from any international -engagement which could indirectly[153] drag it into hostilities against -any other State. And it follows from the neutralisation that the -neutralised State can, apart from frontier regulations, neither cede a -part of its territory nor acquire new parts of territory without the -consent of the Powers.[154] - -[Footnote 153: It was, therefore, impossible for Belgium, which was a -party to the treaty that neutralised Luxemburg in 1867, to take part in -the guarantee of this neutralisation. See article 2 of the Treaty of -London of May 11, 1867: "sous la sanction de la garantie collective des -puissances signataires, à l'exception de la Belgique, qui est elle-même -un état neutre."] - -[Footnote 154: This is a much discussed and very controverted point. See -Descamps, "La Neutralité de la Belgique" (1902), pp. 508-527; Fauchille -in R.G. II. (1895), pp. 400-439; Westlake in R.I. 2nd Ser. III. (1901), -p. 396; Graux in R.I. 2nd Ser. VII. (1905), pp. 33-52; Rivier, I. p. -172. See also below, § 215.] - -[Sidenote: International position of Neutralised States.] - -§ 97. Since a neutralised State is under the obligation not to make war -against any other State, except when attacked, and not to conclude -treaties of alliance, guaranty, and the like, it is frequently -maintained that neutralised States are part-Sovereign only and not -International Persons of the same position within the Family of Nations -as other States. This opinion has, however, no basis if the real facts -and conditions of the neutralisation are taken into consideration. If -sovereignty is nothing else than supreme authority, a neutralised State -is as fully Sovereign as any not neutralised State. It is entirely -independent outside as well as inside its borders, since independence -does not at all mean boundless liberty of action.[155] Nobody maintains -that the guaranteed protection of the independence and integrity of the -neutralised State places this State under the protectorate or any other -kind of authority of the guarantors. And the condition of the -neutralisation to abstain from war, treaties of alliance, and the like, -contains restrictions which do in no way destroy the full sovereignty of -the neutralised State. Such condition has the consequence only that the -neutralised State exposes itself to an intervention by right, and loses -the guaranteed protection in case it commits hostilities against another -State, enters into a treaty of alliance, and the like. Just as a -not-neutralised State which has concluded treaties of arbitration with -other States to settle all conflicts between one another by arbitration -has not lost part of its sovereignty because it has thereby to abstain -from arms, so a neutralised State has not lost part of its sovereignty -through entering into the obligation to abstain from hostilities and -treaties of alliance. This becomes quite apparent when it is taken into -consideration that a neutralised State not only can conclude treaties of -all kinds, except treaties of alliance, guarantee, and the like, but can -also have an army and navy[156] and can build fortresses, as long as -this is done with the purpose of preparing defence only. Neutralisation -does not even exercise an influence upon the rank of a State. Belgium, -Switzerland, and Luxemburg are States with royal honours and do not rank -behind Great Britain or any other of the guarantors of their -neutralisation. Nor is it denied that neutralised States, in spite of -their weakness and comparative unimportance, can nevertheless play an -important part within the Family of Nations. Although she has no voice -where history is made by the sword, Switzerland has exercised great -influence with regard to several points of progress in International -Law. Thus the Geneva Convention owes its existence to the initiative of -Switzerland. The fact that a permanently neutralised State is in many -questions a disinterested party makes such State fit to take the -initiative where action by a Great Power would create suspicion and -reservedness on the part of other Powers. - -[Footnote 155: See below, § 126.] - -[Footnote 156: The case of Luxemburg, which became neutralised under the -condition not to keep an armed force with the exception of a police, is -an anomaly.] - -But neutralised States are and must always be an exception. The Family -and the Law of Nations could not be what they are if ever the number of -neutralised States should be much increased. It is neither in the -interest of the Law of Nations, nor in that of humanity, that all the -small States should become neutralised, as thereby the political -influence of the few Great Powers would become still greater than it -already is. The neutralised States still in existence--namely, -Switzerland, Belgium, and Luxemburg--are a product of the nineteenth -century only, and it remains to be seen whether neutralisation can stand -the test of history.[157] - -[Footnote 157: The fate of the Republic of Cracow, which was created an -independent State under the joint protection of Austria, Prussia, and -Russia by the Vienna Congress in 1815, and permanently neutralised, but -which was annexed by Austria in 1846 (see Nys, I. pp. 383-385), cannot -be quoted as an example that neutralised States have no durability. This -annexation was only the last act in the drama of the absorption of -Poland by her neighbours. As regards the former Congo Free State, see -below, § 101.] - -[Sidenote: Switzerland.] - -§ 98. The Swiss Confederation,[158] which was recognised by the -Westphalian Peace of 1648, has pursued a traditional policy of -neutrality since that time. During the French Revolution and the -Napoleonic Wars, however, she did not succeed in keeping up her -neutrality. French intervention brought about in 1803 a new -Constitution, according to which the single cantons ceased to be -independent States and Switzerland turned from a Confederation of States -into the simple State of the Helvetic Republic, which was, moreover, -through a treaty of alliance linked to France. It was not till 1813 that -Switzerland became again a Confederation of States, and not till 1815 -that she succeeded in becoming permanently neutralised. On March 20, -1815, at the Congress at Vienna, Great Britain, Austria, France, -Portugal, Prussia, Spain, and Russia signed the declaration in which the -permanent neutrality of Switzerland was recognised and collectively -guaranteed, and on May 27, 1815, Switzerland acceded to this -declaration. Article 84 of the Act of the Vienna Congress confirmed this -declaration, and an Act, dated November 20, 1815, of the Powers -assembled at Paris after the final defeat of Napoleon recognised it -again.[159] Since that time Switzerland has always succeeded in keeping -up her neutrality. She has built fortresses and organised a strong army -for that purpose, and in January 1871, during the Franco-German War, she -disarmed a French army of more than 80,000 men who had taken refuge on -her territory, and guarded them till after the war. - -[Footnote 158: See Schweizer, "Geschichte der schweizerischen -Neutralität," 2 vols. (1895).] - -[Footnote 159: See Martens, N.R. II. pp. 157, 173, 419, 740.] - -[Sidenote: Belgium.] - -§ 99. Belgium[160] became neutralised from the moment she was recognised -as an independent State in 1831. The Treaty of London, signed on -November 15, 1831, by Great Britain, Austria, Belgium, France, Prussia, -and Russia, stipulates in its article 7 at the same time the -independence and the permanent neutrality of Belgium, and in its article -25 the guaranty of the signatory five Great Powers.[161] And the -guaranty was renewed in article 1 of the Treaty of London of April 19, -1839,[162] to which the same Powers are parties, and which is the final -treaty concerning the separation of Belgium from the Netherlands. - -[Footnote 160: See Descamps, "La Neutralité de la Belgique" (1902).] - -[Footnote 161: See Martens, N.R. XI. pp. 394 and 404.] - -[Footnote 162: See Martens, N.R. XVI. p. 790.] - -Belgium has, just like Switzerland, also succeeded in keeping up her -neutrality. She, too, has built fortresses and possesses a strong army. - -[Sidenote: Luxemburg.] - -§ 100. The Grand Duchy of Luxemburg[163] was since 1815 in personal -union with the Netherlands, but at the same time a member of the -Germanic Confederation, and Prussia had since 1856 the right to keep -troops in the fortress of Luxemburg. In 1866 the Germanic Confederation -came to an end, and Napoleon III. made efforts to acquire Luxemburg by -purchase from the King of Holland, who was at the same time Grand Duke -of Luxemburg. As Prussia objected to this, it seemed advisable to the -Powers to neutralise Luxemburg. A Conference met in London, at which -Great Britain, Austria, Belgium, France, Holland and Luxemburg, Italy, -Prussia, and Russia were represented, and on May 11, 1867, a treaty was -signed for the purpose of the neutralisation, which is stipulated and -collectively guaranteed by all the signatory Powers, Belgium as a -neutralised State herself excepted, by article 2.[164] - -[Footnote 163: See Wompach, "Le Luxembourg neutre" (1900).] - -[Footnote 164: See Martens, N.R.G. XVIII. p. 448.] - -The neutralisation took place, however, under the abnormal condition -that Luxemburg is not allowed to keep any armed force, with the -exception of a police for the maintenance of safety and order, nor to -possess any fortresses. Under these circumstances Luxemburg herself can -do nothing for the defence of her neutrality, as Belgium and Switzerland -can. - -[Sidenote: The former Congo Free State.] - -§ 101. The former Congo Free State,[165] which was recognised as an -independent State by the Berlin Congo Conference[166] of 1884-1885, was -a permanently neutralised State from 1885-1908, but its neutralisation -was imperfect in so far as it was not guaranteed by the Powers. This -fact is explained by the circumstances under which the Congo Free State -attained its neutralisation. Article 10 of the General Act of the Congo -Conference of Berlin stipulates that the signatory Powers shall respect -the neutrality of any territory within the Congo district, provided the -Power then or hereafter in possession of the territory proclaims its -neutrality. Accordingly, when the Congo Free State was recognised by the -Congress of Berlin, the King of the Belgians, as the sovereign of the -Congo State, declared[167] it permanently neutral, and this declaration -was notified to and recognised by the Powers. Since the Congo Conference -did not guarantee the neutrality of the territories within the Congo -district, the neutralisation of the Congo Free State was not guaranteed -either. In 1908[168] the Congo Free State merged by cession into -Belgium. - -[Footnote 165: Moynier, "La fondation de l'État indépendant du Congo" -(1887); Hall, § 26; Westlake, I. p., 30; Navez, "Essai historique sur -l'État Indépendant du Congo," Vol. I. (1905); Reeves in A.J. III. -(1909), pp. 99-118.] - -[Footnote 166: See Protocol 9 of that Conference in Martens, N.R.G. 2nd -Ser. X. p. 353.] - -[Footnote 167: See Martens, N.R.G. 2nd Ser. XVI. p. 585.] - -[Footnote 168: See Martens, N.R.G. 3rd Ser. II. pp. 101, 106, 109, and -Delpech and Marcaggi in R.G. XVIII. (1911), pp. 105-163. The question is -doubtful, whether the guarantee of the neutrality of Belgium extends now -to territory of the former Congo Free State _ipso facto_ by its merger -into Belgium.] - - -IX - -NON-CHRISTIAN STATES - - Westlake, I. p. 40--Phillimore, I. §§ 27-33--Bluntschli, §§ - 1-16--Heffter, § 7--Gareis, § 10--Rivier, I. pp. 13-18--Bonfils, - No. 40--Martens, § 41--Nys, I. pp. 122-125--Westlake, Chapters, - pp. 114-143. - -[Sidenote: No essential difference between Christian and other States.] - -§ 102. It will be remembered from the previous discussion of the -dominion[169] of the Law of Nations that this dominion extends beyond -the Christian and includes now the Mahometan State of Turkey and the -Buddhistic State of Japan. As all full-Sovereign International Persons -are equal to one another, no essential difference exists within the -Family of Nations between Christian and non-Christian States. That -foreigners residing in Turkey are still under the exclusive jurisdiction -of their consuls, is an anomaly based on a restriction on territorial -supremacy arising partly from custom and partly from treaties. If Turkey -could ever succeed, as Japan did, in introducing such reforms as would -create confidence in the impartiality of her Courts of Justice, this -restriction would certainly be abolished. - -[Footnote 169: See above, § 28.] - -[Sidenote: International position of non-Christian States except Turkey -and Japan.] - -§ 103. Doubtful is the position of all non-Christian States except -Turkey and Japan, such as China, Morocco, Siam, Persia, and further -Abyssinia, although the latter is a Christian State, and although China, -Persia, and Siam took part in the Hague Peace Conferences of 1899 and -1907. Their civilisation is essentially so different from that of the -Christian States that international intercourse with them of the same -kind as between Christian States has been hitherto impossible. And -neither their governments nor their populations are at present able to -fully understand the Law of Nations and to take up an attitude which is -in conformity with all the rules of this law. There should be no doubt -that these States are not International Persons of the same kind and the -same position within the Family of Nations as Christian States. But it -is equally wrong to maintain that they are absolutely outside the Family -of Nations, and are for no part International Persons. Since they send -and receive diplomatic envoys and conclude international treaties, the -opinion is justified that such States are International Persons only in -some respects--namely, those in which they have expressly or tacitly -been received into the Family of Nations. When Christian States begin -such intercourse with these non-Christian States as to send diplomatic -envoys to them and receive their diplomatic envoys, and when they enter -into treaty obligations with them, they indirectly declare that they are -ready to recognise them for these parts as International Persons and -subjects of the Law of Nations. But for other parts such non-Christian -States remain as yet outside the circle of the Family of Nations, -especially with regard to war, and they are for those parts treated by -the Christian Powers according to discretion. This condition of things -will, however, not last very long. It may be expected that with the -progress of civilisation these States will become sooner or later -International Persons in the full sense of the term. They are at present -in a state of transition, and some of them are the subjects of -international arrangements of great political importance. Thus by the -Treaty of London of December 13, 1906, Great Britain, France, and Italy -agree to co-operate in maintaining the independence and integrity of -Abyssinia,[170] and the General Act of the Conference of Algeciras of -April 7, 1906,[171] signed by Great Britain, Germany, Austria-Hungary, -Belgium, Spain, the United States of America, France, Italy, Holland, -Portugal, Russia, Sweden, and Morocco herself, endeavours to suppress -anarchy in Morocco and to introduce reforms in its internal -administration. This Act,[172] which recognises, on the one hand, the -independence and integrity of Morocco, and, on the other, equal -commercial facilities in that country for all nations, contains:--(1) A -Declaration concerning the organisation of the Moroccan police; (2) -Regulations concerning the detection and suppression of the illicit -trade in arms; (3) An Act of concession for a Moorish State Bank; (4) A -Declaration concerning an improved yield of the taxes and the creation -of new sources of revenue; (5) Regulations respecting customs and the -suppression of fraud and smuggling; (6) A Declaration concerning the -public services and public works. - -[Footnote 170: See Martens, N.R.G. 2nd Ser. XXXV. p. 556.] - -[Footnote 171: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.] - -[Footnote 172: It has been mentioned above, p. 76, that the Moroccan -question has been reopened, and that fresh negotiations are taking place -for its settlement.] - - -X - -THE HOLY SEE - - Hall, § 98--Westlake, I. pp. 37-39--Phillimore, I. §§ - 278-440--Twiss, I. §§ 206-207--Taylor, §§ 277, 278, 282--Wharton, - I. § 70, p. 546--Moore, I. § 18--Bluntschli, § 172--Heffter, §§ - 40-41--Geffcken in Holtzendorff, II. pp. 151-222--Gareis, § - 13--Liszt, § 5--Ullmann, § 28--Bonfils, Nos. 370-396--Despagnet, - Nos. 147-164--Mérignhac, II. pp. 119-153--Nys, II. pp. - 297-324--Rivier, I. § 8--Fiore, I. Nos. 520, 521--Martens, I. § - 84--Fiore, "Della condizione giuridica internazionale della chiesa - e del Papa" (1887)--Bombard, "Le Pape et le droit des gens" - (1888)--Imbart-Latour, "La papauté en droit international" - (1893)--Olivart, "Le Pape, les états de l'église et l'Italie" - (1897)--Chrétien in R.G. VI. (1899) pp. 281-291--Bompart in R.G. - VII. (1900), pp. 369-387--Higgins in _The Journal of the Society - for Comparative Legislation_, New Series, IX. (1907), pp. 252-264. - -[Sidenote: The former Papal States.] - -§ 104. When the Law of Nations began to grow up among the States of -Christendom, the Pope was the monarch of one of those States--namely, -the so-called Papal States. This State owed its existence to -Pepin-le-Bref and his son Charlemagne, who established it in gratitude -to the Popes Stephen III. and Adrian I., who crowned them as Kings of -the Franks. It remained in the hands of the Popes till 1798, when it -became a republic for about three years. In 1801 the former order of -things was re-established, but in 1809 it became a part of the -Napoleonic Empire. In 1814 it was re-established, and remained in -existence till 1870, when it was annexed to the Kingdom of Italy. -Throughout the existence of the Papal States, the Popes were monarchs -and, as such, equals of all other monarchs. Their position was, however, -even then anomalous, as their influence and the privileges granted to -them by the different States were due, not alone to their being monarchs -of a State, but to their being the head of the Roman Catholic Church. -But this anomaly did not create any real difficulty, since the -privileges granted to the Popes existed within the province of -precedence only. - -[Sidenote: The Italian Law of Guaranty.] - -§ 105. When, in 1870, Italy annexed the Papal States and made Rome her -capital, she had to undertake the task of creating a position for the -Holy See and the Pope which was consonant with the importance of the -latter to the Roman Catholic Church. It seemed impossible that the Pope -should become an ordinary Italian subject and that the Holy See should -be an institution under the territorial supremacy of Italy. For many -reasons no alteration was desirable in the administration by the Holy -See of the affairs of the Roman Catholic Church or in the position of -the Pope as the inviolable head of that Church. To meet the case the -Italian Parliament passed an Act regarding the guaranties granted to the -Pope and the Holy See, which is commonly called the "Law of Guaranty." -According to this the position of the Pope and the Holy See is in Italy -as follows:-- - -The person of the Pope is sacred and inviolable (article 1), although he -is subjected to the Civil Courts of Italy.[173] An offence against his -person is to be punished in the same way as an offence against the King -of Italy (article 2). He enjoys all the honours of a sovereign, retains -the privileges of precedence conceded to him by Roman Catholic monarchs, -has the right to keep an armed body-guard of the same strength as before -the annexation for the safety of his person and of his palaces (article -3), and receives an allowance of 3,225,000 francs (article 4). The -Vatican, the seat of the Holy See, and the palaces where a conclave for -the election of a new Pope or where an Oecumenical Council meets, are -inviolable, and no Italian official is allowed to enter them without -consent of the Holy See (articles 5-8). The Pope is absolutely free in -performing all the functions connected with his mission as head of the -Roman Catholic Church, and so are his officials (articles 9 and 10). -The Pope has the right to send and to receive envoys, who enjoy all the -privileges of the diplomatic envoys sent and received by Italy (article -11). The freedom of communication between the Pope and the entire Roman -Catholic world is recognised, and the Pope has therefore the right to a -post and telegraph office of his own in the Vatican or any other place -of residence and to appoint his own post-office clerks (article 12). -And, lastly, the colleges and other institutions of the Pope for the -education of priests in Rome and the environments remain under his -exclusive supervision, without any interference on the part of the -Italian authorities. - -[Footnote 173: See Bonfils, No. 379.] - -No Pope has as yet recognised this Italian Law of Guaranty, nor had -foreign States an opportunity of giving their express consent to the -position of the Pope in Italy created by that law. But practically -foreign States as well as the Popes themselves, although the latter have -never ceased to protest against the condition of things created by the -annexation of the Papal States, have made use of the provisions[174] of -that law. Several foreign States send side by side with their diplomatic -envoys accredited to Italy special envoys to the Pope, and the latter -sends envoys to several foreign States. - -[Footnote 174: But the Popes have hitherto never accepted the allowance -provided by the Law of Guaranty.] - -[Sidenote: International position of the Holy See and the Pope.] - -§ 106. The Law of Guaranty is not International but Italian Municipal -Law, and the members of the Family of Nations have hitherto not made any -special arrangements with regard to the International position of the -Holy See and the Pope. And, further, there can be no doubt that since -the extinction of the Papal States the Pope is no longer a monarch whose -sovereignty is derived from his position as the head of a State. For -these reasons many writers[175] maintain that the Holy See and the Pope -have no longer any international position whatever according to the Law -of Nations, since States only and exclusively are International Persons. -But if the facts of international life and the actual condition of -things in every-day practice are taken into consideration, this opinion -has no basis to stand upon. Although the Holy See is not a State, the -envoys sent by her to foreign States are treated by the latter on the -same footing with diplomatic envoys as regards exterritoriality, -inviolability, and ceremonial privileges, and those foreign States which -send envoys to the Holy See claim for them from Italy all the privileges -and the position of diplomatic envoys. Further, although the Pope is no -longer the head of a State, the privileges due to the head of a -monarchical State are still granted to him by foreign States. Of course, -through this treatment the Holy See does not acquire the character of an -International Person, nor does the Pope thereby acquire the character of -a head of a monarchical State. But for some points the Holy See is -actually treated as though she were an International Person, and the -Pope is treated actually in every point as though he were the head of a -monarchical State. It must therefore be maintained that by custom, by -tacit consent of the members of the Family of Nations, the Holy See has -a _quasi_ international position. This position allows her to claim -against all the States treatment on some points as though she were an -International Person, and further to claim treatment of the Pope in -every point as though he were the head of a monarchical State. But it -must be emphasised that, although the envoys sent and received by the -Holy See must be treated as diplomatic envoys,[176] they are not such in -fact, for they are not agents for international affairs of States, but -exclusively agents for the affairs of the Roman Catholic Church. And it -must further be emphasised that the Holy See cannot conclude -international treaties or claim a vote at international congresses and -conferences. The so-called Concordats--that is, treaties between the -Holy See and States with regard to matters of the Roman Catholic -Church--are not international treaties, although analogous treatment is -usually given to them. Even formerly, when the Pope was the head of a -State, such Concordats were not concluded with the Papal States, but -with the Holy See and the Pope as representatives of the Roman Catholic -Church. - -[Footnote 175: Westlake, I. p. 38, now joins the ranks of these -writers.] - -[Footnote 176: The case of Montagnini, which occurred in December 1906, -cannot be quoted against this assertion, for Montagnini was not at the -time a person enjoying diplomatic privileges. Diplomatic relations -between France and the Holy See had come to an end in 1905 by France -recalling her envoy at the Vatican and at the same time sending the -passports to Lorenzelli, the Papal Nuncio in Paris. Montagnini, who -remained at the nunciature in Paris, did not possess any diplomatic -character after the departure of the Nuncio. Neither his arrest and his -expulsion in December 1906, nor the seizure of his papers at the -nunciature amounted therefore to an international delinquency on the -part of the French Government. The papers left by the former Papal -Nuncio Lorenzelli were not touched and remained in the archives of the -former nunciature until the Austrian ambassador in Paris, in February -1907, asked the French Foreign Office to transfer them to him for the -purpose of handing them on to the Holy See. It must be specially -mentioned that the seizure of his papers and the arrest and expulsion of -Montagnini took place because he conspired against the French Government -by encouraging the clergy to refuse obedience to French laws. And it -must further be mentioned that Lorenzelli, when he left the nunciature, -did not, contrary to all precedent, place the archives of the nunciature -under seals and confide them to the protection of another diplomatic -envoy in Paris. Details of the case are to be found in R.I. 2nd Ser. IX. -(1907), pp. 60-66, and R.G. XIV. (1907), pp. 175-186.] - -[Sidenote: Violation of the Holy See and the Pope.] - -§ 107. Since the Holy See has no power whatever to protect herself and -the person of the Pope against violations, the question as to the -protection of the Holy See and the person of the Pope arises. I believe -that, since the present international position of the Holy See rests on -the tacit consent of the members of the Family of Nations, many a Roman -Catholic Power would raise its voice in case Italy or any other State -should violate the Holy See or the person of the Pope, and an -intervention for the purpose of protecting either of them would have the -character of an intervention by right. Italy herself would certainly -make such a violation by a foreign Power her own affair, although she -has no more than any other Power the legal duty to do so, and although -she is not responsible to other Powers for violations of the Personality -of the latter by the Holy See and the Pope. - - -XI - -INTERNATIONAL PERSONS OF THE PRESENT DAY - -[Sidenote: European States.] - -§ 108. All the seventy-four European States are, of course, members of -the Family of Nations. They are the following: - -Great Powers are: - - Austria-Hungary. - France. - Germany. - Great Britain. - Italy. - Russia. - -Smaller States are: - - Bulgaria. - Denmark. - Greece. - Holland. - Montenegro. - Norway. - Portugal. - Roumania. - Servia. - Spain. - Sweden. - Turkey. - -Very small, but nevertheless full-Sovereign, States are: - - Monaco and Lichtenstein. - -Neutralised States are: - - Switzerland, Belgium, and Luxemburg. - -Half-Sovereign States are: - - Andorra (under the protectorate of France and Spain). - San Marino (under the protectorate of Italy). - Crete (under the suzerainty of Turkey). - -Part-Sovereign States are: - -(_a_) Member-States of Germany: - - Kingdoms: Prussia, Bavaria, Saxony, Würtemberg. - - Grand-Duchies: Baden, Hesse, Mecklenburg-Schwerin, - Mecklenburg-Strelitz, Oldenburg. - - Dukedoms: Anhalt, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha, - Saxe-Meiningen, Saxe-Weimar. - - Principalities: Reuss Elder Line, Reuss Younger Line, Lippe, - Schaumburg-Lippe, Schwarzburg-Rudolstadt, - Schwarzburg-Sondershausen Waldeck. - - Free Towns are: Bremen, Lübeck, Hamburg. - -(_b_) Member-States of Switzerland: - - Zurich, Berne, Lucerne, Uri, Schwyz, Unterwalden (ob und nid dem - Wald), Glarus, Zug, Fribourg, Soleure, Basle (Stadt und - Landschaft), Schaffhausen, Appenzell (beider Rhoden), St. Gall, - Grisons, Aargau, Thurgau, Tessin, Vaud, Valais, Neuchâtel, Geneva. - -[Sidenote: American States.] - -§ 109. In America there are twenty-one States which are members of the -Family of Nations, but it must be emphasised that the member-States of -the five Federal States on the American continent, although they are -part-Sovereign, have no footing within the Family of Nations, because -the American Federal States, in contradistinction to Switzerland and -Germany, absorb all possible international relations of their -member-States. - -In North America there are: - - The United States of America. - The United States of Mexico. - -In Central America there are: - - Costa Rica. - Cuba. - San Domingo. - Guatemala. - Hayti. - Honduras. - Nicaragua. - Panama (since 1903). - San Salvador. - -In South America there are: - - The United States of Argentina. - Bolivia. - The United States of Brazil. - Chili. - Colombia. - Ecuador. - Paraguay. - Peru. - Uruguay. - The United States of Venezuela. - -[Sidenote: African States.] - -§ 110. In Africa the Negro Republic of Liberia is the only real and full -member of the Family of Nations. Egypt and Tunis are half-Sovereign, the -one under Turkish suzerainty, the other under French protectorate. -Morocco and Abyssinia are both full-Sovereign States, but for some parts -only within the Family of Nations. The Soudan has an exceptional -position; being under the _condominium_ of Great Britain and Egypt, a -footing of its own within the Family of Nations the Soudan certainly has -not. - -[Sidenote: Asiatic States.] - -§ 111. In Asia only Japan is a full and real member of the Family of -Nations. Persia, China, Siam, Tibet, and Afghanistan are for some parts -only within that family. - - - - -CHAPTER II - -POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS - - -I - -INTERNATIONAL PERSONALITY - - Vattel, I. §§ 13-25--Hall, § 7--Westlake, I. pp. - 293-296--Lawrence, § 57--Phillimore, I. §§ 144-147--Twiss, I. § - 106--Wharton, § 60--Moore, I. § 23--Bluntschli, §§ - 64-81--Hartmann, § 15--Heffter, § 26--Holtzendorff in - Holtzendorff, II. pp. 47-51--Gareis, §§ 24-25--Liszt, § - 7--Ullmann, § 38--Bonfils, Nos. 235-241--Despagnet, Nos. - 165-166--Nys, II. pp. 176-181--Pradier-Fodéré, I. Nos. - 165-195--Mérignhac, I. pp. 233-238--Rivier, I. § 19--Fiore, I. - Nos. 367-371--Martens, I. § 72--Fontenay, "Des droits et des - devoirs des États entre eux" (1888)--Pillet in R.G. V. (1898), - pp. 66 and 236, VI. (1899), p. 503--Cavaglieri, "I diritti - fondamentali degli Stati nella Società Internazionale" (1906). - -[Sidenote: The so-called Fundamental Rights.] - -§ 112. Until the last two decades of the nineteenth century all jurists -agreed that the membership of the Family of Nations includes so-called -fundamental rights for States. Such rights are chiefly enumerated as the -right of existence, of self-preservation, of equality, of independence, -of territorial supremacy, of holding and acquiring territory, of -intercourse, and of good name and reputation. It was and is maintained -that these fundamental rights are a matter of course and self-evident, -since the Family of Nations consists of Sovereign States. But no -unanimity exists with regard to the number, the names, and the contents -of these alleged fundamental rights. A great confusion exists in this -matter, and hardly two text-book writers agree in details with regard to -it. This condition of things has led to a searching criticism of the -whole matter, and several writers[177] have in consequence thereof -asked that the fundamental rights of States should totally disappear -from the treatises on the Law of Nations. I certainly agree with this. -Yet it must be taken into consideration that under the wrong heading of -fundamental rights a good many correct statements have been made for -hundreds of years, and that numerous real rights and duties are -customarily recognised which are derived from the very membership of the -Family of Nations. They are rights and duties which do not rise from -international treaties between a multitude of States, but which the -States customarily hold as International Persons, and which they grant -and receive reciprocally as members of the Family of Nations. They are -rights and duties connected with the position of the States within the -Family of Nations, and it is therefore only adequate to their importance -to discuss them in a special chapter under that heading. - -[Footnote 177: See Stoerk in Holtzendorff's "Encyklopädie der -Rechtswissenschaft," 2nd ed. (1890), p. 1291; Jellinek, "System der -subjectiven öffentlichen Rechte" (1892), p. 302; Heilborn, "System," p. -279; and others. The arguments of these writers have met, however, -considerable resistance, and the existence of fundamental rights of -States is emphatically defended by other writers. See, for instance, -Pillet, l.c., Liszt, § 7, and Gareis, §§ 24 and 25. Westlake, I. p. 293, -now joins the ranks of those writers who deny the existence of -fundamental rights.] - -[Sidenote: International Personality a Body of Qualities.] - -§ 113. International Personality is the term which characterises fitly -the position of the States within the Family of Nations, since a State -acquires International Personality through its recognition as a member. -What it really means can be ascertained by going back to the basis[178] -of the Law of Nations. Such basis is the common consent of the States -that a body of legal rules shall regulate their intercourse with one -another. Now a legally regulated intercourse between Sovereign States is -only possible under the condition that a certain liberty of action is -granted to every State, and that, on the other hand, every State -consents to a certain restriction of action in the interest of the -liberty of action granted to every other State. A State that enters into -the Family of Nations retains the natural liberty of action due to it in -consequence of its sovereignty, but at the same time takes over the -obligation to exercise self-restraint and to restrict its liberty of -action in the interest of that of other States. In entering into the -Family of Nations a State comes as an equal to equals[179]; it demands -that certain consideration be paid to its dignity, the retention of its -independence, of its territorial and its personal supremacy. Recognition -of a State as a member of the Family of Nations contains recognition of -such State's equality, dignity, independence, and territorial and -personal supremacy. But the recognised State recognises in turn the same -qualities in other members of that family, and thereby it undertakes -responsibility for violations committed by it. All these qualities -constitute as a body the International Personality of a State, and -International Personality may therefore be said to be the fact, given by -the very membership of the Family of Nations, that equality, dignity, -independence, territorial and personal supremacy, and the responsibility -of every State are recognised by every other State. The States are -International Persons because they recognise these qualities in one -another and recognise their responsibility for violations of these -qualities. - -[Footnote 178: See above, § 12.] - -[Footnote 179: See above, § 14.] - -[Sidenote: Other Characteristics of the position of the States within -the Family of Nations.] - -§ 114. But the position of the States within the Family of Nations is -not exclusively characterised by these qualities. The States make a -community because there is constant intercourse between them. -Intercourse is therefore a condition without which the Family of Nations -would not and could not exist. Again, there are exceptions to the -protection of the qualities which constitute the International -Personality of the States, and these exceptions are likewise -characteristic of the position of the States within the Family of -Nations. Thus, in time of war belligerents have a right to violate one -another's Personality in many ways; even annihilation of the vanquished -State, through subjugation after conquest, is allowed. Thus, further, in -time of peace as well as in time of war, such violations of the -Personality of other States are excused as are committed in -self-preservation or through justified intervention. And, finally, -jurisdiction is also important for the position of the States within the -Family of Nations. Intercourse, self-preservation, intervention, and -jurisdiction must, therefore, likewise be discussed in this chapter. - - -II - -EQUALITY, RANK, AND TITLES - - Vattel, II. §§ 35-48--Westlake, I. pp. 308-312--Lawrence, §§ - 112-119--Phillimore, I. § 147, II. §§ 27-43--Twiss, I. § - 12--Halleck, I. pp. 116-140--Taylor, § 160--Wheaton, §§ - 152-159--Moore, I. § 24--Bluntschli, §§ 81-94--Hartmann, § - 14--Heffter, §§ 27-28--Holtzendorff in Holtzendorff, II. pp. - 11-14--Ullmann, §§ 36 and 37--Bonfils, Nos. 272-278--Despagnet, - Nos. 167-171--Pradier-Fodéré, II. Nos. 484-594--Mérignhac, I. pp. - 310-320--Rivier, I. § 9--Nys, II. pp. 194-199, 208-218--Calvo, I. - §§ 210-259--Fiore, I. Nos. 428-451, and Code, Nos. - 388-421--Martens, I. §§ 70-71--Lawrence, Essays, pp. - 191-213--Westlake, Chapters, pp. 86-109--Huber, "Die Gleichheit - der Staaten" (1909)--Streit in R.I. 2nd Ser. II. pp. 5-27--Hicks - in A.J. II. (1908), pp. 530-561. - -[Sidenote: Legal Equality of States.] - -§ 115. The equality before International Law of all member-States of the -Family of Nations is an invariable quality derived from their -International Personality.[180] Whatever inequality may exist between -States as regards their size, population, power, degree of civilisation, -wealth, and other qualities, they are nevertheless equals as -International Persons. This legal equality has three important -consequences: - -[Footnote 180: See above, §§ 14 and 113.] - -The first is that, whenever a question arises which has to be settled by -the consent of the members of the Family of Nations, every State has a -right to a vote, but to one vote only. - -The second consequence is that legally--although not politically--the -vote of the weakest and smallest State has quite as much weight as the -vote of the largest and most powerful. Therefore any alteration of an -existing rule or creation of a new rule of International Law by a -law-making treaty has legal validity for the signatory Powers and those -only who later on accede expressly or submit to it tacitly through -custom. - -The third consequence is that--according to the rule _par in parem non -habet imperium_--no State can claim jurisdiction over another -full-Sovereign State. Therefore, although foreign States can sue in -foreign Courts,[181] they cannot as a rule be sued[182] there, unless -they voluntarily accept[183] the jurisdiction of the Court concerned, or -have submitted themselves to such jurisdiction by suing in such foreign -Court.[184] - -[Footnote 181: See Phillimore, II. § 113 A; Nys, II. pp. 288-296; -Loening, "Die Gerichtsbarkeit über fremde Staaten und Souveräne" (1903); -and the following cases:--The United States _v._ Wagner (1867), L.R. 2 -Ch. App. 582; The Republic of Mexico _v._ Francisco de Arrangoiz, and -others, 11 Howard's Practice Reports 1 (quoted by Scott, "Cases on -International Law," 1902, p. 170); The Sapphire (1870), 11 Wallace, 164. -See also below, § 348.] - -[Footnote 182: See De Haber _v._ the Queen of Portugal (1851), 17 Ch. D. -171, and Vavasseur _v._ Krupp (1878), L.R. 9 Ch. D. 351.] - -[Footnote 183: See Prioleau _v._ United States, &c. (1866), L.R. 2 -Equity, 656.] - -[Footnote 184: Provided the cross-suit is really connected with the -claim in the action. As regards the German case of Hellfeld _v._ the -Russian Government, see Köhler in Z.V. IV. (1910), pp. 309-333; the -opinions of Laband, Meili, and Seuffert, _ibidem_, pp. 334-448; Baty in -_The Law Magazine and Review_, XXV. (1909-1910), p. 207; Wolfman in A.J. -IV. (1910), pp. 373-383.] - -To the rule of equality there are three exceptions:-- - -First, such States as can for some parts[185] only be considered -International Persons, are not equals of the full members of the Family -of Nations. - -[Footnote 185: See above, § 103.] - -Secondly, States under suzerainty and under protectorate which are -half-Sovereign and under the guardianship[186] of other States with -regard to the management of external affairs, are not equals of States -which enjoy full sovereignty. - -[Footnote 186: See above, §§ 91 and 93.] - -Thirdly, the part-sovereign member-States of a Federal State are not -equals of full-Sovereign States. - -It is, however, quite impossible to lay down a hard and fast general -rule concerning the amount of inequality between the equal and the -unequal States, as everything depends upon the circumstances and -conditions of the special case. - -[Sidenote: Political Hegemony of Great Powers.] - -§ 116. Legal equality must not be confounded with political equality. -The enormous differences between States as regards their strength are -the result of a natural inequality which, apart from rank and titles, -finds its expression in the province of policy. Politically, States are -in no manner equals, as there is a difference between the Great Powers -and others. Eight States must at present be considered as Great -Powers--namely, Great Britain, Austria-Hungary, France, Germany, Italy, -and Russia in Europe, the United States in America, and Japan in Asia. -All arrangements made by the body of the Great Powers naturally gain the -consent of the minor States, and the body of the six Great Powers in -Europe is therefore called the European Concert. The Great Powers are -the leaders of the Family of Nations, and every progress of the Law of -Nations during the past is the result of their political hegemony, -although the initiative towards the progress was frequently taken by a -minor Power. - -But, however important the position and the influence of the Great -Powers may be, they are by no means derived from a legal basis or -rule.[187] It is nothing else than powerful example which makes the -smaller States agree to the arrangements of the Great Powers. Nor has a -State the character of a Great Power by law. It is nothing else than its -actual size and strength which makes a State a Great Power. Changes, -therefore, often take place. Whereas at the time of the Vienna Congress -in 1815 eight States--namely, Great Britain, Austria, France, Portugal, -Prussia, Spain, Sweden, and Russia--were still considered Great Powers, -their number decreased soon to five, when Portugal, Spain, and Sweden -lost that character. But the so-called Pentarchy of the remaining Great -Powers turned into a Hexarchy after the unification of Italy, because -the latter became at once a Great Power. The United States rose as a -Great Power out of the civil war in 1865, and Japan did the same out of -the war with China in 1895. Any day a change may take place and one of -the present Great Powers may lose its position, or one of the weaker -States may become a Great Power. It is a question of political -influence, and not of law, whether a State is or is not a Great Power. -Whatever large-sized State with a large population gains such strength -that its political influence must be reckoned with by the other Great -Powers, becomes a Great Power itself.[188] - -[Footnote 187: This is, however, maintained by a few writers. See, for -instance, Lorimer, I. p. 170; Lawrence, §§ 113 and 114; Westlake, I. pp. -308, 309; and Pitt Cobbett, "Cases and Opinions on International Law," -2nd ed. vol. I. (1909), p. 50.] - -[Footnote 188: In contradistinction to the generally recognised -political hegemony of the Great Powers, Lawrence (§§ 113 and 114) and -Taylor (§ 69) maintain that the position of the Great Powers is -_legally_ superior to that of the smaller States, being a "Primacy" or -"Overlordship." This doctrine, which professedly seeks to abolish the -universally recognised rule of the equality of States, has no sound -basis, and confounds political with legal inequality. I cannot agree -with Lawrence when he says (§ 114, p. 276):--"... in a system of rules -depending, like International Law, for their validity on general -consent, what is political is legal also, if it is generally accepted -and acted on." The Great Powers are _de facto_, by the smaller States, -recognised as political leaders, but this recognition does not involve -recognition of legal superiority.] - -[Sidenote: Rank of States.] - -§ 117. Although the States are equals as International Persons, they are -nevertheless not equals as regards rank. The differences as regards rank -are recognised by International Law, but the legal equality of States -within the Family of Nations is thereby as little affected as the legal -equality of the citizens is within a modern State where differences in -rank and titles of the citizens are recognised by Municipal Law. The -vote of a State of lower rank has legally as much weight as that of a -State of higher rank. And the difference in rank nowadays no longer -plays such an important part as in the past, when questions of etiquette -gave occasion for much dispute. It was in the sixteenth and seventeenth -centuries that the rank of the different States was zealously discussed -under the heading of _droit de préséance_ or _questions de préséance_. -The Congress at Vienna of 1815 intended to establish an order of -precedence within the Family of Nations, but dropped this scheme on -account of practical difficulties. Thus the matter is entirely based on -custom, which recognises the following three rules: - -(1) The States are divided into two classes--namely, States with and -States without royal honours. To the first class belong Empires, -Kingdoms, Grand Duchies, and the great Republics such as France, the -United States of America, Switzerland, the South American Republics, and -others. All other States belong to the second class. The Holy See is -treated as though it were a State with royal honours. States with royal -honours have exclusively the right to send and receive diplomatic envoys -of the first class[189]--namely, ambassadors; and their monarchs address -one another as "brothers" in their official letters. States with royal -honours always precede other States. - -[Footnote 189: See below, § 365.] - -(2) Full-Sovereign States always precede those under suzerainty or -protectorate. - -(3) Among themselves States of the same rank do not precede one another. -Empires do not precede kingdoms, and since the time of Cromwell and the -first French Republic monarchies do not precede republics. But the Roman -Catholic States always concede precedence to the Holy See, and the -monarchs recognise among themselves a difference with regard to -ceremonials between emperors and kings on the one hand, and, on the -other, grand dukes and other monarchs. - -[Sidenote: The "Alternat."] - -§ 118. To avoid questions of precedence, on signing a treaty, States of -the same rank observe a conventional usage which is called the -"Alternat." According to that usage the signatures of the signatory -States of a treaty alternate in a regular order or in one determined by -lot, the representative of each State signing first the copy which -belongs to his State. But sometimes that order is not observed, and the -States sign either in the alphabetical order of their names in French or -in no order at all (_pêle-mêle_). - -[Sidenote: Titles of States.] - -§ 119. At the present time, States, save in a few exceptional instances, -have no titles, although formerly such titles did exist. Thus the former -Republic of Venice as well as that of Genoa was addressed as "Serene -Republic," and up to the present day the Republic of San Marino[190] is -addressed as "Most Serene Republic." Nowadays the titles of the heads of -monarchical States are in so far of importance to International Law as -they are connected with the rank of the respective States. Since States -are Sovereign, they can bestow any titles they like on their heads. -Thus, according to the German Constitution of 1871, the Kings of Prussia -have the title "German Emperor"; the Kings of England have since 1877 -borne the title "Emperor of India"; the Prince of Servia assumed in -1881, that of Roumania in 1882, that of Bulgaria in 1908, and that of -Montenegro in 1910, the title "King." But no foreign State is obliged to -recognise such a new title, especially when a higher rank would accrue -to the respective State in consequence of such a new title of its head. -In practice such recognition will regularly be given when the new title -really corresponds with the size and the importance of the respective -State.[191] Servia, Roumania, Bulgaria, and Montenegro had therefore no -difficulty in obtaining recognition as kingdoms. - -[Footnote 190: See Treaty Series, 1900, No. 9.] - -[Footnote 191: History, however, reports several cases where recognition -was withheld for a long time. Thus the title "Emperor of Russia," -assumed by Peter the Great in 1701, was not recognised by France till -1745, by Spain till 1759, nor by Poland till 1764. And the Pope did not -recognise the kingly title of Prussia, assumed in 1701, till 1786.] - -With the titles of the heads of States are connected predicates. -Emperors and Kings have the predicate "Majesty," Grand Dukes "Royal -Highness," Dukes "Highness," other monarchs "Serene Highness." The Pope -is addressed as "Holiness" (_Sanctitas_). Not to be confounded with -these predicates, which are recognised by the Law of Nations, are -predicates which originally were bestowed on monarchs by the Pope and -which have no importance for the Law of Nations. Thus the Kings of -France called themselves _Rex Christianissimus_ or "First-born Son of -the Church," the Kings of Spain have called themselves since 1496 _Rex -Catholicus_, the Kings of England since 1521 _Defensor Fidei_, the Kings -of Portugal since 1748 _Rex Fidelissimus_, the Kings of Hungary since -1758 _Rex Apostolicus_. - - -III - -DIGNITY - - Vattel, II. §§ 35-48--Lawrence, § 120--Phillimore, II. §§ - 27-43--Halleck, I. pp. 124-142--Taylor, § 162--Wheaton, § - 160--Bluntschli, §§ 82-83--Hartmann, § 15--Heffter, §§ 32, 102, - 103--Holtzendorff in Holtzendorff, II. pp. 64-69--Ullmann, § - 38--Bonfils, Nos. 279-284--Despagnet, Nos. 184-186--Moore, I. pp. - 310-320--Pradier-Fodéré, II. Nos. 451-483--Rivier, I. pp. - 260-262--Nys, II. pp. 212-214--Calvo, III. §§ 1300-1302--Fiore, I. - Nos. 439-451--Martens, I. § 78. - -[Sidenote: Dignity a Quality.] - -§ 120. The majority of text-book writers maintain that there is a -fundamental right of reputation and of good name belonging to every -State. Such a right, however, does not exist, because no duty -corresponding to it can be traced within the Law of Nations. Indeed, -the reputation of a State depends just as much upon behaviour as that of -every citizen within its boundaries. A State which has a corrupt -government and behaves unfairly and perfidiously in its intercourse with -other States will be looked down upon and despised, whereas a State -which has an uncorrupt government and behaves fairly and justly in its -international dealings will be highly esteemed. No law can give a good -name and reputation to a rogue, and the Law of Nations does not and -cannot give a right to reputation and good name to such a State as has -not acquired them through its attitude. There are some States--_nomina -sunt odiosa!_--which indeed justly possess a bad reputation. - -On the other hand, a State as a member of the Family of Nations -possesses dignity as an International Person. Dignity is a quality -recognised by other States, and it adheres to a State from the moment of -its recognition till the moment of its extinction, whatever behaviour it -displays. Just as the dignity of every citizen within a State commands a -certain amount of consideration on the part of fellow-citizens, so the -dignity of a State commands a certain amount of consideration on the -part of other States, since otherwise the different States could not -live peaceably in the community which is called the Family of Nations. - -[Sidenote: Consequences of the Dignity of States.] - -§ 121. Since dignity is a recognised quality of States as International -Persons, all members of the Family of Nations grant reciprocally to one -another by custom certain rights and ceremonial privileges. These are -chiefly the rights to demand--that their heads shall not be libelled and -slandered; that their heads and likewise their diplomatic envoys shall -be granted exterritoriality and inviolability when abroad, and at home -and abroad in the official intercourse with representatives of foreign -States shall be granted certain titles; that their men-of-war shall be -granted exterritoriality when in foreign waters; that their symbols of -authority, such as flags and coats of arms, shall not be made improper -use of and not be treated with disrespect on the part of other States. -Every State must not only itself comply with the duties corresponding to -these rights of other States, but must also prevent its subjects from -such acts as violate the dignity of foreign States, and must punish them -for acts of that kind which it could not prevent. The Municipal Laws of -all States must therefore provide for the punishment of those who commit -offences against the dignity of foreign States,[192] and, if the -Criminal Law of the land does not contain such provisions, it is no -excuse for failure by the respective States to punish offenders. But it -must be emphasised that a State must prevent and punish such acts only -as really violate the dignity of a foreign State. Mere criticism of -policy, historical verdicts concerning the attitude of States and their -rulers, utterances of moral indignation condemning immoral acts of -foreign Governments and their monarchs need neither be suppressed nor -punished. - -[Footnote 192: According to the Criminal Law of England, "every one is -guilty of a misdemeanour who publishes any libel tending to degrade, -revile, or expose to hatred and contempt any foreign prince or -potentate, ambassador or other foreign dignitary, with the intent to -disturb peace and friendship between the United Kingdom and the country -to which any such person belongs." See Stephen, "A Digest of the -Criminal Law," article 91.] - -[Sidenote: Maritime Ceremonials.] - -§ 122. Connected with the dignity of States are the maritime ceremonials -between vessels and between vessels and forts which belong to different -States. In former times discord and jealousy existed between the States -regarding such ceremonials, since they were looked upon as means of -keeping up the superiority of one State over another. Nowadays, so far -as the Open Sea is concerned, they are considered as mere acts of -courtesy recognising the dignity of States. They are the outcome of -international usages, and not of International Law, in honour of the -national flags. They are carried out by dipping flags or striking sails -or firing guns.[193] But so far as the territorial maritime belt is -concerned, littoral States can make laws concerning maritime ceremonials -to be observed by foreign merchantmen.[194] - -[Footnote 193: See Halleck, I. pp. 124-142, where the matter is treated -with all details. See also below, § 257.] - -[Footnote 194: See below, § 187.] - - -IV - -INDEPENDENCE AND TERRITORIAL AND PERSONAL SUPREMACY - - Vattel, I. Préliminaires, §§ 15-17--Hall, § 10--Westlake, I. pp. - 308-312--Lawrence, §§ 58-61--Phillimore, I. §§ 144-149--Twiss, I. - § 20--Halleck, I. pp. 93-113--Taylor, § 160--Wheaton, §§ - 72-75--Bluntschli, §§ 64-69--Hartmann, § 15--Heffter, §§ 29 and - 31--Holtzendorff in Holtzendorff, II. pp. 36-60--Gareis, §§ - 25-26--Ullmann, § 38--Bonfils, Nos. 253-271--Despagnet, Nos. - 187-189--Mérignhac, I. pp. 233-383--Pradier-Fodéré, I. Nos. - 287-332--Rivier, I. § 21--Nys, II. pp. 182-184--Calvo, I. §§ - 107-109--Fiore, I. Nos. 372-427, and Code, Nos. 180-387--Martens, - I. §§ 74 and 75--Westlake, Chapters, pp. 86-106. - -[Sidenote: Independence and Territorial as well as Personal Supremacy as -Aspects of Sovereignty.] - -§ 123. Sovereignty as supreme authority, which is independent of any -other earthly authority, may be said to have different aspects. As -excluding dependence from any other authority, and in especial from the -authority of another State, sovereignty is _independence_. It is -_external_ independence with regard to the liberty of action outside its -borders in the intercourse with other States which a State enjoys. It is -_internal_ independence with regard to the liberty of action of a State -inside its borders. As comprising the power of a State to exercise -supreme authority over all persons and things within its territory, -sovereignty is _territorial_ supremacy. As comprising the power of a -State to exercise supreme authority over its citizens at home and -abroad, sovereignty is _personal_ supremacy. - -For these reasons a State as an International Person possesses -independence and territorial and personal supremacy. These three -qualities are nothing else than three aspects of the very same -sovereignty of a State, and there is no sharp boundary line between -them. The distinction is apparent and useful, although internal -independence is nothing else than sovereignty comprising territorial -supremacy, but viewed from a different point of view. - -[Sidenote: Consequences of Independence and Territorial and Personal -Supremacy.] - -§ 124. Independence and territorial as well as personal supremacy are -not rights, but recognised and therefore protected qualities of States -as International Persons. The protection granted to these qualities by -the Law of Nations finds its expression in the right of every State to -demand that other States abstain themselves, and prevent their agents -and subjects, from committing any act which contains a violation of its -independence and its territorial as well as personal supremacy. - -In consequence of its external independence, a State can manage its -international affairs according to discretion, especially enter into -alliances and conclude other treaties, send and receive diplomatic -envoys, acquire and cede territory, make war and peace. - -In consequence of its internal independence and territorial supremacy, a -State can adopt any Constitution it likes, arrange its administration in -a way it thinks fit, make use of legislature as it pleases, organise its -forces on land and sea, build and pull down fortresses, adopt any -commercial policy it likes, and so on. According to the rule, _quidquid -est in territorio est etiam de territorio_, all individuals and all -property within the territory of a State are under the latter's dominion -and sway, and even foreign individuals and property fall at once under -the territorial supremacy of a State when they cross its frontier. -Aliens residing in a State can therefore be compelled to pay rates and -taxes, and to serve in the police under the same conditions as citizens -for the purpose of maintaining order and safety. But aliens may be -expelled, or not received at all. On the other hand, hospitality may be -granted to them whatever act they have committed abroad, provided they -abstain from making the hospitable territory the basis for attempts -against a foreign State. And a State can through naturalisation adopt -foreign subjects residing on its territory without the consent of the -home State, provided the individuals themselves give their consent. - -In consequence of its personal supremacy, a State can treat its subjects -according to discretion, and it retains its power even over such -subjects as emigrate without thereby losing their citizenship. A State -may therefore command its citizens abroad to come home and fulfil their -military service, may require them to pay rates and taxes for the -support of the home finances, may ask them to comply with certain -conditions in case they desire marriages concluded abroad or wills made -abroad recognised by the home authorities, can punish them on their -return for crimes they have committed abroad. - -[Sidenote: Violations of Independence and Territorial and Personal -Supremacy.] - -§ 125. The duty of every State itself to abstain and to prevent its -agents and subjects from any act which contains a violation[195] of -another State's independence or territorial and personal supremacy is -correlative to the respective right of the other State. It is impossible -to enumerate all such actions as might contain a violation of this duty. -But it is of value to give some illustrative examples. Thus, in the -interest of the independence of other States, a State is not allowed to -interfere in the management of their international affairs nor to -prevent them from doing or to compel them to do certain acts in their -international intercourse. Further, in the interest of the territorial -supremacy of other States, a State is not allowed to send its troops, -its men-of-war, or its police forces into or through foreign territory, -or to exercise an act of administration or jurisdiction on foreign -territory, without permission.[196] Again, in the interest of the -personal supremacy of other States, a State is not allowed to naturalise -aliens residing on its territory without their consent,[197] nor to -prevent them from returning home for the purpose of fulfilling military -service or from paying rates and taxes to their home State, nor to -incite citizens of foreign States to emigration. - -[Footnote 195: See below, § 155.] - -[Footnote 196: But neighbouring States very often give such permission -to one another. Switzerland, for instance, allows German Custom House -officers to be stationed on two railway stations of Basle for the -purpose of examining the luggage of travellers from Basle to Germany.] - -[Footnote 197: See, however, below (§ 299), where the fact is stated -that some States naturalise an alien through the very fact of his taking -domicile on their territory.] - -[Sidenote: Restrictions upon Independence.] - -§ 126. Independence is not boundless liberty of a State to do what it -likes without any restriction whatever. The mere fact that a State is a -member of the Family of Nations restricts its liberty of action with -regard to other States because it is bound not to intervene in the -affairs of other States. And it is generally admitted that a State can -through conventions, such as a treaty of alliance or neutrality and the -like, enter into many obligations which hamper it more or less in the -management of its international affairs. Independence is a question of -degree, and it is therefore also a question of degree whether the -independence of a State is destroyed or not by certain restrictions. -Thus it is generally admitted that States under suzerainty or under -protectorate are so much restricted that they are not fully independent, -but half-Sovereign. And the same is the case with the member-States of a -Federal State which are part-Sovereign. On the other hand, the -restriction connected with the neutralisation of States does not, -according to the correct opinion,[198] destroy their independence, -although they cannot make war except in self-defence, cannot conclude -alliances, and are in other ways hampered in their liberty of action. - -[Footnote 198: See above, § 97.] - -From a political and a legal point of view it is of great importance -that the States imposing and those accepting restrictions upon -independence should be clear in their intentions. For the question may -arise whether these restrictions make the respective State a dependent -one. - -Thus through article 4 of the Convention of London of 1884 between Great -Britain and the former South African Republic stipulating that the -latter should not conclude any treaty with any foreign State, the Orange -Free State excepted, without approval on the part of Great Britain, the -Republic was so much restricted that Great Britain considered herself -justified in defending the opinion that the Republic was not an -independent State, although the Republic itself and many writers were of -a different opinion.[199] - -[Footnote 199: It is of interest to state the fact that, before the last -phase of the conflict between Great Britain and the Republic, -influential Continental writers stated the suzerainty of Great Britain -over the Republic. See Rivier, I. p. 89, and Holtzendorff in -Holtzendorff, II. p. 115.] - -Thus, to give another example, through article 1 of the Treaty of -Havana[200] of May 22, 1903, between the United States of America and -Cuba, stipulating that Cuba shall never enter into any such treaty with -a foreign Power as will impair, or tend to impair, the independence of -Cuba, and shall abstain from other acts, the Republic of Cuba is so much -restricted that some writers maintain--wrongly, I believe--that Cuba is -under an American protectorate and only a half-Sovereign State. - -[Footnote 200: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79. As -regards the international position of Cuba, see Whitcomb, "La situation -internationale de Cuba" (1905).] - -Again, the Republic of Panama is, by the Treaty of Washington[201] of -1904, likewise burdened with some restrictions in favour of the United -States, but here, too, it would be wrong to maintain that Panama is -under an American protectorate. - -[Footnote 201: See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 601.] - -[Sidenote: Restrictions upon Territorial Supremacy.] - -§ 127. Just like independence, territorial supremacy does not give a -boundless liberty of action. Thus, by customary International Law every -State has a right to demand that its merchantmen can pass through the -maritime belt of other States. Thus, further, navigation on so-called -international rivers in Europe must be open to merchantmen of all -States. Thus, thirdly, foreign monarchs and envoys, foreign men-of-war, -and foreign armed forces must be granted exterritoriality. Thus, -fourthly, through the right of protection over citizens abroad which is -held by every State according to customary International Law, a State -cannot treat foreign citizens passing through or residing on its -territory arbitrarily according to discretion as it might treat its own -subjects; it cannot, for instance, compel them to serve[202] in its army -or navy. Thus, to give another and fifth example, a State, in spite of -its territorial supremacy, is not allowed to alter the natural -conditions of its own territory to the disadvantage of the natural -conditions of the territory of a neighbouring State--for instance, to -stop or to divert the flow of a river which runs from its own into -neighbouring territory.[203] - -[Footnote 202: Great Britain would seem to uphold an exception to this -rule, for Lord Reay, one of her delegates, declared--see "Deuxième -Conférence Internationale de la Paix, Actes et Documents," vol. III. p. -41--the following at the second Hague Peace Conference of 1907: "Nous -reconnaissons qu'en règle générale le neutre est exempt de tout service -militaire dans l'Etat où il réside. Cependant dans les colonies -britanniques et, dans une certaine mesure, dans tous les pays en voie de -formation, la situation est tout autre et la population toute entière, -sans distinction de nationalité, peut être appelée sous les armes pour -défendre leurs foyers menacés."] - -[Footnote 203: See below, § 178 _a_.] - -In contradistinction to these restrictions by the customary Law of -Nations, a State can through treaties enter into obligations of many a -kind without thereby losing its internal independence and territorial -supremacy. Thus France by three consecutive treaties of peace--namely, -that of Utrecht of 1713, that of Aix-la-Chapelle of 1748, and that of -Paris of 1763--entered into the obligation to pull down and not to -rebuild the fortifications of Dunkirk.[204] Napoleon I. imposed by the -Peace Treaty of Tilsit of 1807 upon Prussia the restriction not to keep -more than 42,000 men under arms. Again, article 29 of the Treaty of -Berlin of 1878 imposed upon Montenegro the restriction not to possess a -navy.[205] There is hardly a State in existence which is not in one -point or another restricted in its territorial supremacy by treaties -with foreign Powers. - -[Footnote 204: This restriction was abolished by article 17 of the -Treaty of Paris of 1783.] - -[Footnote 205: It is doubtful whether this restriction is still in -force; see below, § 258.] - -[Sidenote: Restrictions upon Personal Supremacy.] - -§ 128. Personal Supremacy does not give a boundless liberty of action -either. Although the citizens of a State remain under its power when -abroad, such State is restricted in the exercise of this power with -regard to all those matters in which the foreign State on whose -territory these citizens reside is competent in consequence of its -territorial supremacy. The duty to respect the territorial supremacy of -a foreign State must prevent a State from doing all acts which, although -they are according to its personal supremacy within its competence, -would violate the territorial supremacy of this foreign State. Thus, for -instance, a State is prevented from requiring such acts from its -citizens abroad as are forbidden to them by the Municipal Law of the -land in which they reside. - -But a State may also by treaty obligation be for some parts restricted -in the liberty of action with regard to its citizens. Thus articles 5, -25, 35, and 44 of the Treaty of Berlin of 1878 restrict the personal -supremacy of Bulgaria, Montenegro, Servia, and Roumania in so far as -these States are thereby obliged not to impose any religious -disabilities on any of their subjects.[206] - -[Footnote 206: See above, § 73.] - - -V - -SELF-PRESERVATION - - Vattel, II. §§ 49-53--Hall, §§ 8, 83-86--Westlake, I. pp. - 296-304--Phillimore, I. §§ 210-220--Twiss, I. §§ 106-112--Halleck, - I. pp. 93-113--Taylor, §§ 401-409--Wheaton, §§ 61-62--Moore, II. - §§ 215-219--Hartmann, § 15--Heffter, § 30--Holtzendorff in - Holtzendorff, II. pp. 51-56--Gareis, § 25--Liszt, § 7--Ullmann, § - 38--Bonfils, Nos. 242-252--Despagnet, Nos. 172-175--Mérignhac, I. - pp. 239-245--Pradier-Fodéré, I. Nos. 211-286--Rivier, I. § - 20--Nys, II. pp. 178-181--Calvo, I. §§ 208-209--Fiore, I. Nos. - 452-466--Martens, I. § 73--Westlake, Chapters, pp. 110-125. - -[Sidenote: Self-preservation an excuse for violations.] - -§ 129. From the earliest time of the existence of the Law of Nations -self-preservation was considered sufficient justification for many acts -of a State which violate other States. Although, as a rule, all States -have mutually to respect one another's Personality and are therefore -bound not to violate one another, as an exception, certain violations of -another State committed by a State for the purpose of self-preservation -are not prohibited by the Law of Nations. Thus, self-preservation is a -factor of great importance for the position of the States within the -Family of Nations, and most writers maintain that every State has a -fundamental right of self-preservation.[207] But nothing of the kind is -actually the case, if the real facts of the law are taken into -consideration. If every State really had a _right_ of self-preservation, -all the States would have the duty to admit, suffer, and endure every -violation done to one another in self-preservation. But such duty does -not exist. On the contrary, although self-preservation is in certain -cases an excuse recognised by International Law, no State is obliged -patiently to submit to violations done to it by such other State as acts -in self-preservation, but can repulse them. It is a fact that in certain -cases violations committed in self-preservation are not prohibited by -the Law of Nations. But, nevertheless, they remain violations and can -therefore be repulsed. Self-preservation is consequently an excuse, -because violations of other States are in certain exceptional cases not -prohibited when they are committed for the purpose and in the interest -of self-preservation, although they need not patiently be suffered and -endured by the States concerned. - -[Footnote 207: This right was formerly frequently called _droit de -convenance_, and was said to exist in the right of every State to act in -favour of its interests in case of a conflict between its own and the -interests of another State. See Heffter, § 26.] - -[Sidenote: What acts of self-preservation are excused.] - -§ 130. It is frequently maintained that every violation is excused so -long as it was caused by the motive of self-preservation, but it becomes -more and more recognised that violations of other States in the interest -of self-preservation are excused in cases of _necessity_ only. Such acts -of violence in the interest of self-preservation are exclusively excused -as are necessary in self-defence, because otherwise the acting State -would have to suffer or have to continue to suffer a violation against -itself. If an imminent violation or the continuation of an already -commenced violation can be prevented and redressed otherwise than by a -violation of another State on the part of the endangered State, this -latter violation is not necessary, and therefore not excused and -justified. When, to give an example, a State is informed that on -neighbouring territory a body of armed men is being organised for the -purpose of a raid into its own territory, and when the danger can be -removed through an appeal to the authorities of the neighbouring -country, no case of necessity has arisen. But if such an appeal is -fruitless or not possible, or if there is danger in delay, a case of -necessity arises and the threatened State is justified in invading the -neighbouring country and disarming the intending raiders. - -The reason of the thing, of course, makes it necessary for every State -to judge for itself when it considers a case of necessity has arisen, -and it is therefore impossible to lay down a hard-and-fast rule -regarding the question when a State can or cannot have recourse to -self-help which violates another State. Everything depends upon the -circumstances and conditions of the special case, and it is therefore of -value to give some historical examples. - -[Sidenote: Case of the Danish Fleet (1807).] - -§ 131. After the Peace of Tilsit of 1807 the British Government[208] was -cognisant of the provision of some secret articles of this treaty that -France should be at liberty to seize the Danish fleet and to make use of -it against Great Britain. This plan, when carried out, would have -endangered the position of Great Britain, which was then waging war -against France. As Denmark was not capable of defending herself against -an attack of the French army in North Germany under Bernadotte and -Davoust, who had orders to invade Denmark, the British Government -requested Denmark to deliver up her fleet to the custody of Great -Britain, and promised to restore it after the war. And at the same time -the means of defence against French invasion and a guaranty of her whole -possessions were offered to Denmark by England. The latter, however, -refused to comply with the British demands, whereupon the British -considered a case of necessity in self-preservation had arisen, shelled -Copenhagen, and seized the Danish fleet. - -[Footnote 208: I follow Hall's (§ 86) summary of the facts.] - -[Sidenote: Case of Amelia Island.] - -§ 132. "Amelia Island, at the mouth of St. Mary's River, and at that -time in Spanish territory, was seized in 1817 by a band of buccaneers, -under the direction of an adventurer named McGregor, who in the name of -the insurgent colonies of Buenos Ayres and Venezuela preyed -indiscriminately on the commerce of Spain and of the United States. The -Spanish Government not being able or willing to drive them off, and the -nuisance being one which required immediate action, President Monroe -called his Cabinet together in October 1817, and directed that a vessel -of war should proceed to the island and expel the marauders, destroying -their works and vessels."[209] - -[Footnote 209: See Wharton, § 50 a, and Moore, II. § 216.] - -[Sidenote: Case of the _Caroline_.] - -§ 133. In 1837, during the Canadian rebellion, several hundreds of -insurgents got hold of an island in the river Niagara, on the territory -of the United States, and with the help of American subjects equipped a -boat called the _Caroline_, with the purpose of crossing into Canadian -territory and bringing material help to the insurgents. The Canadian -Government, timely informed of the imminent danger, sent a British force -over into the American territory, which obtained possession of the -_Caroline_, seized her arms, and then sent her adrift down the falls of -the Niagara. The United States complained of this British violation of -her territorial supremacy, but Great Britain was in a position to prove -that her act was necessary in self-preservation, since there was not -sufficient time to prevent the imminent invasion of her territory -through application to the United States Government.[210] - -[Footnote 210: See Wharton, I. § 50 c, Moore, II. § 217, and Hall, § 84. -With the case of the _Caroline_ is connected the case of Macleod, which -will be discussed below, § 446. Hall (§ 86), Martens (I. § 73), and -others quote also the case of the _Virginius_ (1873) as an example of -necessity of self-preservation, but it seems that the Spanish Government -did not plead self-preservation but piracy as justification of the -capture of the vessel (see Moore, II. § 309, pp. 895-903). That a vessel -sailing under another State's flag can nevertheless be seized on the -high seas in case she is sailing to a port of the capturing State for -the purpose of an invasion or bringing material help to insurgents, -there is no doubt. No better case of necessity of self-preservation -could be given, since the danger is imminent and can be frustrated only -by capture of the vessel.] - - -VI - -INTERVENTION - - Vattel, II. §§ 54-62--Hall, §§ 88-95--Westlake, I. pp. - 304-308--Lawrence, §§ 62-70--Phillimore, I. §§ 390-415A--Halleck, - I. pp. 94-109--Taylor, §§ 410-430--Walker, § 7--Wharton, I. §§ - 45-72--Moore, VI. §§ 897-926--Wheaton, §§ 63-71--Bluntschli, §§ - 474-480--Hartmann, § 17--Heffter, §§ 44-46--Geffcken in - Holtzendorff, II. pp. 131-168--Gareis, § 26--Liszt, § 7--Ullmann, - §§ 163-164--Bonfils, Nos. 295-323--Despagnet, Nos. - 193-216--Mérignhac, I. pp. 284-310--Pradier-Fodéré, I. Nos. - 354-441--Rivier, I. § 31--Nys, II. pp. 185-193, 200-205--Calvo, I. - §§ 110-206--Fiore, I. Nos. 561-608, and Code, Nos. - 543-557--Martens, I. § 76--Bernard, "On the Principle of - non-Intervention" (1860)--Hautefeuille, "Le principe de - non-intervention" (1863)--Stapleton, "Intervention and - Non-intervention, or the Foreign Policy of Great Britain from 1790 - to 1865" (1866)--Geffcken, "Das Recht der Intervention" - (1887)--Kebedgy, "De l'intervention" (1890)--Floecker, "De - l'intervention en droit international" (1896)--Drago, "Cobro - coercitivo de deudas publicas" (1906)--Moulin, "La doctrine de - Drago" (1908). - -[Sidenote: Conception and character of Intervention.] - -§ 134. Intervention is dictatorial interference by a State in the -affairs of another State for the purpose of maintaining or altering the -actual condition of things. Such intervention can take place by right or -without a right, but it always concerns the external independence or the -territorial or personal supremacy of the respective State, and the whole -matter is therefore of great importance for the position of the States -within the Family of Nations. That intervention is, as a rule, forbidden -by the Law of Nations which protects the International Personality of -the States, there is no doubt. On the other hand, there is just as -little doubt[211] that this rule has exceptions, for there are -interventions which take place by right, and there are others which, -although they do not take place by right, are nevertheless admitted by -the Law of Nations and are excused in spite of the violation of the -Personality of the respective States they involve. - -[Footnote 211: The so-called doctrine of non-intervention as defended by -some Italian writers (see Fiore, I. No. 565), who deny that intervention -is ever justifiable, is a political doctrine without any legal basis -whatever.] - -Intervention can take place in the external as well as in the internal -affairs of a State. It concerns in the first case the external -independence, and in the second either the territorial or the personal -supremacy. But it must be emphasised that intervention proper is always -_dictatorial_ interference, not interference pure and simple.[212] -Therefore intervention must neither be confounded with good offices, nor -with mediation, nor with intercession, nor with co-operation, because -none of these imply a _dictatorial_ interference. Good offices is the -name for such acts of friendly Powers interfering in a conflict between -two other States as tend to call negotiations into existence for the -peaceable settlement of the conflict, and mediation is the name -for the direct conduct on the part of a friendly Power of such -negotiations.[213] Intercession is the name for the interference -consisting in friendly advice given or friendly offers made with regard -to the domestic affairs of another State. And, lastly, co-operation is -the appellation of such interference as consists in help and assistance -lent by one State to another at the latter's request for the purpose of -suppressing an internal revolution. Thus, for example, Russia sent -troops in 1849, at the request of Austria, into Hungary to assist -Austria in suppressing the Hungarian revolt. - -[Footnote 212: Many writers constantly commit this confusion.] - -[Footnote 213: See below, vol. II. § 9.] - -[Sidenote: Intervention by Right.] - -§ 135. It is apparent that such interventions as take place by right -must be distinguished from others. Wherever there is no right of -intervention, although it may be admissible and excused, an intervention -violates either the external independence or the territorial or the -personal supremacy. But if an intervention takes place by right, it -never contains such a violation, because the right of intervention is -always based on a legal restriction upon the independence or territorial -or personal supremacy of the State concerned, and because the latter is -in duty bound to submit to the intervention. Now a State may have a -right of intervention against another State, mainly for six -reasons:[214] - -[Footnote 214: The enumeration is not intended to be exhaustive.] - -(1) A Suzerain State has a right to intervene in many affairs of the -Vassal, and a State which holds a protectorate has a right to intervene -in all the external affairs of the protected State. - -(2) If an external affair of a State is at the same time by right an -affair of another State, the latter has a right to intervene in case the -former deals with that affair unilaterally. The events of 1878 provide -an illustrative example. Russia had concluded the preliminary Peace of -San Stefano with defeated Turkey; Great Britain protested because the -conditions of this peace were inconsistent with the Treaty of Paris of -1856 and the Convention of London of 1871, and Russia agreed to the -meeting of the Congress of Berlin for the purpose of arranging matters. -Had Russia persisted in carrying out the preliminary peace, Great -Britain as well as other signatory Powers of the Treaty of Paris and the -Convention of London doubtless possessed a right of intervention. - -(3) If a State which is restricted by an international treaty in its -external independence or its territorial or personal supremacy does not -comply with the restrictions concerned, the other party or parties have -a right to intervene. Thus the United States of America, in 1906, -exercised intervention in Cuba in conformity with article 3 of the -Treaty of Havana[215] of 1903, which stipulates: "The Government of Cuba -consents that the United States may exercise the right to intervene for -the preservation of Cuban independence, the maintenance of a Government -adequate for the protection of life, property, and individual -liberty...." And likewise the United States of America, in 1904, -exercised intervention in Panama in conformity with article 7 of the -Treaty of Washington[216] in 1903, which stipulates: "The same right and -authority are granted to the United States for the maintenance of public -order in the cities of Panama and Colon and the territories and harbours -adjacent thereto in case the Republic of Panama should not be, in the -judgment of the United States, able to maintain such order." - -[Footnote 215: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79.--Even -if no special right of intervention is stipulated, it nevertheless -exists in such cases. Thus--see below, § 574--those Powers which have -guaranteed the integrity of Norway under the condition that she does not -cede any part of her territory to any foreign Power would have a right -to intervene in case such a cession were contemplated, although the -treaty concerned does not stipulate this.] - -[Footnote 216: See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 599.] - -(4) If a State in time of peace or war violates such rules of the Law of -Nations as are universally recognised by custom or are laid down in -law-making treaties, other States have a right to intervene and to make -the delinquent submit to the rules concerned. If, for instance, a State -undertook to extend its jurisdiction over the merchantmen of another -State on the high seas, not only would this be an affair between the two -States concerned, but all other States would have a right to intervene -because the freedom of the open sea is a universally recognised -principle. Or if a State which is a party to the Hague Regulations -concerning Land Warfare were to violate one of these Regulations, all -the other signatory Powers would have a right to intervene. - -(5) A State that has guaranteed by treaty the form of government of a -State or the reign of a certain dynasty over the same has a right[217] -to intervene in case of change of form of government or of dynasty, -provided the respective treaty of guaranty was concluded between the -respective States and not between their monarchs personally. - -[Footnote 217: But this is not generally recognised; see, for instance, -Hall, § 93, who denies the existence of such a right. I do not see the -reason why a State should not be able to undertake the obligation to -retain a certain form of government or dynasty. That historical events -can justify such State in considering itself no longer bound by such -treaty according to the principle _rebus sic stantibus_ (see below, § -539) is another matter.] - -(6) The right of protection[218] over citizens abroad, which a State -holds, may cause an intervention by right to which the other party is -legally bound to submit. And it matters not whether protection of the -life, security, honour, or property of a citizen abroad is concerned. - -[Footnote 218: See below, § 319.] - -The so-called _Drago[219] doctrine_, which asserts the rule that -intervention is not allowed for the purpose of making a State pay its -public debts, is unfounded, and has not received general recognition, -although Argentina and some other South American States tried to -establish this rule at the second Hague Peace Conference of 1907. But -this Conference adopted, on the initiative of the United States of -America, a "Convention[220] respecting the Limitation of the Employment -of Force for the Recovery of Contract Debts." According to article 1 of -this Convention, the contracting Powers agree not to have recourse to -armed force for the recovery of contract debts claimed from the -Government of one country by the Government of another country as being -due to its nationals. This undertaking is, however, not applicable when -the debtor State refuses or neglects to reply to an offer of -arbitration, or, after accepting the offer, renders the settlement of -the _compromis_ impossible, or, after the arbitration, fails to submit -to the award.--It must be emphasised that the stipulations of this -Convention concern the recovery of all contract debts, whether or no -they arise from public loans. - -[Footnote 219: The Drago doctrine originates from Louis M. Drago, -sometime Foreign Secretary of the Republic of Argentina. See Drago, -"Cobro coercitivo de deudas publicas" (1906); Barclay, "Problems of -International Practice, &c." (1907), pp. 115-122; Moulin, "La Doctrine -de Drago" (1908); Higgins, "The Hague Peace Conferences, &c." (1909), -pp. 184-197; Scott, "The Hague Peace Conferences" (1909), vol. I. pp. -415-422; Calvo in R.I. 2nd Ser. V. (1903), pp. 597-623; Drago in R.G. -XIV. (1907), pp. 251-287; Moulin in R.G. XIV. (1907), pp. 417-472; -Hershey in A.J. I. (1907), pp. 26-45; Drago in A.J. I. (1907), pp. -692-726.] - -[Footnote 220: See Scott in A.J. II. (1908), pp. 78-94.] - -[Sidenote: Admissibility of Intervention in default of Right.] - -§ 136. In contradistinction to intervention by right, there are other -interventions which must be considered admissible, although they violate -the independence or the territorial or personal supremacy of the State -concerned, and although such State has by no means any legal duty to -submit patiently and suffer the intervention. Of such interventions in -default of right there are two kinds generally admitted and -excused--namely, such as are necessary in self-preservation and such as -are necessary in the interest of the balance of power. - -(1) As regards interventions for the purpose of self-preservation, it is -obvious that, if any necessary violation committed in self-preservation -of the International Personality of other States is, as shown above (§ -130), excused, such violation must also be excused as is contained in an -intervention. And it matters not whether such an intervention exercised -in self-preservation is provoked by an actual or imminent intervention -on the part of a third State, or by some other incident. - -(2) As regards intervention in the interest of the balance of power, it -is likewise obvious that it must be excused. An equilibrium between the -members of the Family of Nations is an indispensable[221] condition of -the very existence of International Law. If the States could not keep -one another in check, all Law of Nations would soon disappear, as, -naturally, an over-powerful State would tend to act according to -discretion instead of according to law. Since the Westphalian Peace of -1648 the principle of balance of power has played a preponderant part in -the history of Europe. It found express recognition in 1713 in the -Treaty of Peace of Utrecht, it was the guiding star at the Vienna -Congress in 1815 when the map of Europe was rearranged, at the Congress -of Paris in 1856, the Conference of London in 1867, and the Congress of -Berlin in 1878. The States themselves and the majority of writers agree -upon the admissibility of intervention in the interest of balance of -power. Most of the interventions exercised in the interest of the -preservation of the Turkish Empire must, in so far as they are not based -on treaty rights, be classified as interventions in the interest of -balance of power. Examples of this are supplied by collective -interventions exercised by the Powers in 1886 for the purpose of -preventing the outbreak of war between Greece and Turkey, and in 1897 -during the war between Greece and Turkey with regard to the island of -Crete. - -[Footnote 221: A survey of the opinions concerning the value of the -principle of balance of power is given by Bulmerincq, "Praxis, Theorie -und Codification des Völkerrechts" (1874), pp. 40-50, but Bulmerincq -himself rejects the principle. See also Donnadieu, "Essai sur la théorie -de l'équilibre" (1900) where the matter is exhaustively treated, and -Dupuis, "Le principe d'équilibre et le concert européen" (1909), pp. -90-108, and 494-513. It is necessary to emphasise that the principle of -the balance of power is not a legal principle and therefore not one of -International Law, but one of International policy; it is a political -principle indispensable to the existence of International Law in its -present condition.] - -[Sidenote: Intervention in the interest of Humanity.] - -§ 137. Many jurists maintain that intervention is likewise admissible, -or even has a basis of right, when exercised in the interest of humanity -for the purpose of stopping religious persecution and endless cruelties -in time of peace and war. That the Powers have in the past exercised -intervention on these grounds, there is no doubt. Thus Great Britain, -France, and Russia intervened in 1827 in the struggle between -revolutionary Greece and Turkey, because public opinion was horrified at -the cruelties committed during this struggle. And many a time -interventions have taken place to stop the persecution of Christians in -Turkey. But whether there is really a rule of the Law of Nations which -admits such interventions may well be doubted. Yet, on the other hand, -it cannot be denied that public opinion and the attitude of the Powers -are in favour of such interventions, and it may perhaps be said that in -time the Law of Nations will recognise the rule that interventions in -the interests of humanity are admissible provided they are exercised in -the form of a collective intervention of the Powers.[222] - -[Footnote 222: See Hall, §§ 91 and 95, where the merits of the problem -are discussed from all sides. See also below, § 292, and Rougier in R.G. -XVII. (1910), pp. 468-526.] - -[Sidenote: Intervention _de facto_ a Matter of Policy.] - -§ 138. Careful analysis of the rules of the Law of Nations regarding -intervention and the hitherto exercised practice of intervention make it -apparent that intervention is _de facto_ a matter of policy just like -war. This is the result of the combination of several factors. Since, -even in the cases in which it is based on a right, intervention is not -compulsory, but is solely in the discretion of the State concerned, it -is for that reason alone a matter of policy. Since, secondly, every -State must decide for itself whether vital interests of its own are at -stake and whether a case of necessity in the interest of -self-preservation has arisen, intervention is for this part again a -matter of policy. Since, thirdly, the question of balance of power is so -complicated and the historical development of the States involves -gradually an alteration of the division of power between the States, it -must likewise be left to the appreciation of every State whether or not -it considers the balance of power endangered and, therefore, an -intervention necessary. And who can undertake to lay down a -hard-and-fast rule with regard to the amount of inhumanity on the part -of a Government that would justify intervention according to the Law of -Nations? - -No State will ever intervene in the affairs of another if it has not -some important interest in doing so, and it has always been easy for -such State to find or pretend some legal justification for an -intervention, be it self-preservation, balance of power, or humanity. -There is no great danger to the welfare of the States in the fact that -intervention is _de facto_ a matter of policy. Too many interests are -common to all the members of the Family of Nations, and too great is -the natural jealousy between the Great Powers, for an abuse of -intervention on the part of one powerful State without calling other -States into the field. Since unjustified intervention violates the very -principles of the Law of Nations, and since, as I have stated above (§ -135), in case of a violation of these principles on the part of a State -every other State has a right to intervene, any unjustifiable -intervention by one State in the affairs of another gives a right of -intervention to all other States. Thus it becomes apparent here, as -elsewhere, that the Law of Nations is intimately connected with the -interests of all the States, and that they must themselves secure the -maintenance and realisation of this law. This condition of things tends -naturally to hamper more the ambitions of weaker States than those of -the several Great Powers, but it seems unalterable. - -[Sidenote: The Monroe Doctrine.] - -§ 139. The _de facto_ political character of the whole matter of -intervention becomes clearly apparent through the so-called Monroe -doctrine[223] of the United States of America. This doctrine, at its -first appearance, was indirectly a product of the policy of intervention -in the interest of legitimacy which the Holy Alliance pursued in the -beginning of the nineteenth century after the downfall of Napoleon. The -Powers of this alliance were inclined to extend their policy of -intervention to America and to assist Spain in regaining her hold over -the former Spanish colonies in South America which had declared and -maintained their independence, and which were recognised as independent -Sovereign States by the United States of America. To meet and to check -the imminent danger, President James Monroe delivered his celebrated -Message to Congress on December 2, 1823. This Message contains two quite -different, but nevertheless equally important, declarations. - -[Footnote 223: Wharton, § 57; Dana's Note No. 36 to Wharton, p. 36; -Tucker, "The Monroe Doctrine" (1885); Moore, "The Monroe Doctrine" -(1895), and Digest, VI. §§ 927-968; Cespedès, "La doctrine de Monroe" -(1893); Mérignhac, "La doctrine de Monroe à la fin du XIXe siècle" -(1896); Beaumarchais, "La doctrine de Monroe" (1898); Redaway, "The -Monroe Doctrine" (1898); Pékin, "Les États-Unis et la doctrine de -Monroe" (1900).] - -(1) In connection with the unsettled boundary lines in the north-west of -the American continent, the Message declared "that the American -continents, by the free and independent condition which they have -assumed and maintained, are henceforth not to be considered as subjects -for future colonisation by any European Power." This declaration was -never recognised by the European Powers, and Great Britain and Russia -protested expressly against it. In fact, however, no occupation of -American territory has since then taken place on the part of a European -State. - -(2) In regard to the contemplated intervention of the Holy Alliance -between Spain and the South American States, the Message declared that -the United States had not intervened, and never would intervene, in wars -in Europe, but could not, on the other hand, in the interest of her own -peace and happiness, allow the allied European Powers to extend their -political system to any part of America and try to intervene in the -independence of the South American republics. - -(3) Since the time of President Monroe, the Monroe doctrine has been -gradually somewhat extended in so far as the United States claims a kind -of political hegemony over all the States of the American continent. -Whenever a conflict occurs between such an American State and a European -Power, the United States is ready to exercise intervention. Through the -civil war her hands were to a certain extent bound in the sixties of the -last century, and she could not prevent the occupation of Mexico by the -French army, but she intervened[224] in 1865. Again, she did not -intervene in 1902 when Great Britain, Germany, and Italy took combined -action against Venezuela, because she was cognisant of the fact that -this action intended merely to make Venezuela comply with her -international duties. But she intervened in 1896 in the boundary -conflict between Great Britain and Venezuela when Lord Salisbury had -sent an _ultimatum_ to Venezuela, and she retains the Monroe doctrine as -a matter of principle. - -[Footnote 224: See Moore, VI. § 957.] - -[Sidenote: Merits of the Monroe Doctrine.] - -§ 140. The importance of the Monroe doctrine is of a political, not of a -legal character. Since the Law of Nations is a law between all the -civilised States as equal members of the Family of Nations, the States -of the American continent are subjects of the same international rights -and duties as the European States. The European States are, as far as -the Law of Nations is concerned, absolutely free to acquire territory in -America as elsewhere. And the same legal rules are valid concerning -intervention on the part of European Powers both in American affairs and -in affairs of other States. But it is evident that the Monroe doctrine, -as the guiding star of the policy of the United States, is of the -greatest _political_ importance. And it ought not to be maintained that -this policy is in any way inconsistent with the Law of Nations. In the -interest of balance of power in the world, the United States considers -it a necessity that European Powers should not acquire more territory on -the American continent than they actually possess. She considers, -further, her own welfare so intimately connected with that of the other -American States that she thinks it necessary, in the interest of -self-preservation, to watch closely the relations of these States with -Europe and also the relations between these very States, and eventually -to intervene in conflicts. Since every State must decide for itself -whether and where vital interests of its own are at stake and whether -the balance of power is endangered to its disadvantage, and since, as -explained above (§ 138), intervention is therefore _de facto_ a matter -of policy, there is no legal impediment to the United States carrying -out a policy in conformity with the Monroe doctrine. This policy hampers -indeed the South American States, but with their growing strength it -will gradually disappear. For, whenever some of these States become -Great Powers themselves, they will no longer submit to the political -hegemony of the United States, and the Monroe doctrine will have played -its part. - - -VII - -INTERCOURSE - - Grotius, II. c. 2, § 13--Vattel, II. §§ 21-26--Hall, § 13--Taylor, - § 160--Bluntschli, § 381 and p. 26--Hartmann, § 15--Heffter, §§ 26 - and 33--Holtzendorff in Holtzendorff, II. pp. 60-64--Gareis, § - 27--Liszt, § 7--Ullmann, § 38--Bonfils, Nos. 285-289--Despagnet, - No. 183--Mérignhac, I. pp. 256-257--Pradier-Fodéré, I. No. - 184--Rivier, I. pp. 262-264--Nys, II. pp. 221-228--Calvo, III. §§ - 1303-1305--Fiore, I. No. 370--Martens, I. § 79. - -[Sidenote: Intercourse a presupposition of International Personality.] - -§ 141. Many adherents of the doctrine of fundamental rights include -therein also a right of intercourse of every State with all others. This -right of intercourse is said to contain a right of diplomatic, -commercial, postal, telegraphic intercourse, of intercourse by railway, -a right of foreigners to travel and reside on the territory of every -State, and the like. But if the real facts of international life are -taken into consideration, it becomes at once apparent that such a -fundamental right of intercourse does not exist. All the consequences -which are said to follow from the right of intercourse are not at all -consequences of a right, but nothing else than consequences of the fact -that intercourse between the States is a condition without which a Law -of Nations would not and could not exist. The civilised States make a -community of States because they are knit together through their common -interests and the manifold intercourse which serves these interests. -Through intercourse with one another and with the growth of their common -interests the Law of Nations has grown up among the civilised States. -Where there is no intercourse there cannot be a community and a law for -such community. A State cannot be a member of the Family of Nations and -an International Person, if it has no intercourse whatever with at least -one or more other States. Varied intercourse with other States is a -necessity for every civilised State. The mere fact that a State is a -member of the Family of Nations shows that it has various intercourse -with other States, for otherwise it would never have become a member of -that family. Intercourse is therefore one of the characteristics of the -position of the States within the Family of Nations, and it may be -maintained that intercourse is a presupposition of the international -Personality of every State. But no special right or rights of -intercourse between the States exist according to the Law of Nations. It -is because such special rights of intercourse do not exist that the -States conclude special treaties regarding matters of post, telegraphs, -telephones, railways, and commerce. On the other hand, most States keep -up protective duties to exclude or hamper foreign trade in the interest -of their home commerce, industry, and agriculture. And although as a -rule they allow[225] aliens to travel and to reside on their territory, -they can expel every foreign subject according to discretion. - -[Footnote 225: That an alien has no right to demand to be admitted to -British territory was decided in the case of Musgrove _v._ Chun Teeong -Toy, L.R. (1891), App. Cas. 272.] - -[Sidenote: Consequences of Intercourse as a Presupposition of -International Personality.] - -§ 142. Intercourse being a presupposition of International Personality, -the Law of Nations favours intercourse in every way. The whole -institution of legation serves the interest of intercourse between the -States, as does the consular institution. The right of legation,[226] -which every full-Sovereign State undoubtedly holds, is held in the -interest of intercourse, as is certainly the right of protection over -citizens abroad[227] which every State possesses. The freedom of the -Open Sea,[228] which has been universally recognised since the end of -the first quarter of the nineteenth century, the right of every State to -the passage of its merchantmen through the maritime belt[229] of all -other States, and, further, freedom of navigation for the merchantmen of -all nations on so-called international rivers,[230] are further examples -of provisions of the Law of Nations in the interest of international -intercourse. - -[Footnote 226: See below, § 360.] - -[Footnote 227: See below, § 319. The right of protection over citizens -abroad is frequently said to be a special right of self-preservation, -but it is really a right in the interest of intercourse.] - -[Footnote 228: See below, § 259.] - -[Footnote 229: See below, § 188.] - -[Footnote 230: See below, § 178.] - -The question is frequently discussed and answered in the affirmative -whether a State has the right to require such States as are outside the -Family of Nations to open their ports and allow commercial intercourse. -Since the Law of Nations is a law between those States only which are -members of the Family of Nations, it has certainly nothing to do with -this question, which is therefore one of mere commercial policy and of -morality. - - -VIII - -JURISDICTION - - Hall, §§ 62, 75-80--Westlake, I. pp. 236-271--Lawrence, §§ - 93-109--Phillimore, I. §§ 317-356--Twiss, I. §§ 157-171--Halleck, - I. pp. 186-245--Taylor, §§ 169-171--Wheaton, §§ 77-151--Moore, II. - §§ 175-249--Bluntschli, §§ 388-393--Heffter, §§ 34-39--Bonfils, - Nos. 263-266--Rivier, I. § 28--Nys, II. pp. 257-263--Fiore, I. - Nos. 475-588. - -[Sidenote: Jurisdiction important for the position of the States within -the Family of Nations.] - -§ 143. Jurisdiction is for several reasons a matter of importance as -regards the position of the States within the Family of Nations. States -possessing independence and territorial as well as personal supremacy -can naturally extend or restrict their jurisdiction as far as they like. -However, as members of the Family of Nations and International Persons, -the States must exercise self-restraint in the exercise of this natural -power in the interest of one another. Since intercourse of all kinds -takes place between the States and their subjects, the matter ought to -be thoroughly regulated by the Law of Nations. But such regulation has -as yet only partially grown up. The consequence of both the regulation -and non-regulation of jurisdiction is that concurrent jurisdiction of -several States can often at the same time be exercised over the same -persons and matters. And it can also happen that matters fall under no -jurisdiction because the several States which could extend their -jurisdiction over these matters refuse to do so, leaving them to each -other's jurisdiction. - -[Sidenote: Restrictions upon Territorial Jurisdiction.] - -§ 144. As all persons and things within the territory of a State fall -under its territorial supremacy, every State has jurisdiction over them. -The Law of Nations, however, gives a right to every State to claim -so-called exterritoriality and therefore exemption from local -jurisdiction chiefly for its head,[231] its diplomatic envoys,[232] its -men-of-war,[233] and its armed forces[234] abroad. And partly by custom -and partly by treaty obligations, Eastern non-Christian States, Japan -now excepted, are restricted[235] in their territorial jurisdiction with -regard to foreign resident subjects of Christian Powers. - -[Footnote 231: Details below, §§ 348-353, and 356.--The exemption of a -State itself from the jurisdiction of another is not based upon a claim -to exterritoriality, but upon the claim to equality; see above, § 115.] - -[Footnote 232: Details below, §§ 385-405.] - -[Footnote 233: Details below, §§ 450-451.] - -[Footnote 234: Details below, § 445.] - -[Footnote 235: Details below, §§ 318 and 440.] - -[Sidenote: Jurisdiction over Citizens abroad.] - -§ 145. The Law of Nations does not prevent a State from exercising -jurisdiction over its subjects travelling or residing abroad, since they -remain under its personal supremacy. As every State can also exercise -jurisdiction over aliens[236] within its boundaries, such aliens are -often under two concurrent jurisdictions. And, since a State is not -obliged to exercise jurisdiction for all matters over aliens on its -territory, and since the home State is not obliged to exercise -jurisdiction over its subjects abroad, it may and does happen that -aliens are actually for some matters under no State's jurisdiction. - -[Footnote 236: See below, § 317.] - -[Sidenote: Jurisdiction on the Open Sea.] - -§ 146. As the Open Sea is not under the sway of any State, no State can -exercise its jurisdiction there. But it is a rule of the Law of Nations -that the vessels and the things and persons thereon remain during the -time they are on the Open Sea under the jurisdiction of the State under -whose flag they sail.[237] It is another rule of the Law of Nations that -piracy[238] on the Open Sea can be punished by any State, whether or no -the pirate sails under the flag of a State. Further,[239] a general -practice seems to admit the claim of every maritime State to exercise -jurisdiction over cases of collision at sea, whether the vessels -concerned are or are not sailing under its flag. Again, in the interest -of the safety of the Open Sea, every State has the right to order its -men-of-war to ask any suspicious merchantman they meet on the Open Sea -to show the flag, to arrest foreign merchantmen sailing under its flag -without an authorisation for its use, and to pursue into the Open Sea -and to arrest there such foreign merchantmen as have committed a -violation of its law whilst in its ports or maritime belt.[240] Lastly, -in time of war belligerent States have the right to order their -men-of-war to visit, search, and eventually capture on the Open Sea all -neutral vessels for carrying contraband, breach of blockade, or -unneutral services to the enemy. - -[Footnote 237: See below, § 260.] - -[Footnote 238: See below, § 278.] - -[Footnote 239: See below, § 265.] - -[Footnote 240: See below, §§ 265-266.] - -[Sidenote: Criminal Jurisdiction over Foreigners in Foreign States.] - -§ 147. Many States claim jurisdiction and threaten punishment for -certain acts committed by a foreigner in foreign countries.[241] States -which claim jurisdiction of this kind threaten punishment for certain -acts either against the State itself, such as high treason, forging -bank-notes, and the like, or against its citizens, such as murder or -arson, libel and slander, and the like. These States cannot, of course, -exercise this jurisdiction as long as the foreigner concerned remains -outside their territory. But if, after the committal of such act, he -enters their territory and comes thereby under their territorial -supremacy, they have an opportunity of inflicting punishment. The -question is, therefore, whether States have a right to jurisdiction over -acts of foreigners committed in foreign countries, and whether the home -State of such an alien has a duty to acquiesce in the latter's -punishment in case he comes into the power of these States. The question -must be answered in the negative. For at the time such criminal acts are -committed the perpetrators are neither under the territorial nor under -the personal supremacy of the States concerned. And a State can only -require respect for its laws from such aliens as are permanently or -transiently within its territory. No right for a State to extend its -jurisdiction over acts of foreigners committed in foreign countries can -be said to have grown up according to the Law of Nations, and the right -of protection over citizens abroad held by every State would justify it -in an intervention in case one of its citizens abroad should be required -to stand his trial before the Courts of another State for criminal acts -which he did not commit during the time he was under the territorial -supremacy of such State.[242] In the only[243] case which is -reported--namely, in the case of Cutting--an intervention took place -according to this view. In 1886, one A. K. Cutting, a subject of the -United States, was arrested in Mexico for an alleged libel against one -Emigdio Medina, a subject of Mexico, which was published in the -newspaper of El Paso in Texas. Mexico maintained that she had a right to -punish Cutting, because according to her Criminal Law offences committed -by foreigners abroad against Mexican subjects are punishable in Mexico. -The United States, however, intervened,[244] and demanded Cutting's -release. Mexico refused to comply with this demand, but nevertheless -Cutting was finally released, as the plaintiff withdrew his action for -libel. Since Mexico likewise refused to comply with the demand of the -United States to alter her Criminal Law for the purpose of avoiding in -the future a similar incident, diplomatic practice has not at all -settled the subject. - -[Footnote 241: See Hall, § 62; Westlake, I. pp. 251-253; Lawrence, § -104; Taylor, § 191; Moore, II. §§ 200 and 201; Phillimore, I. § 334.] - -[Footnote 242: The Institute of International Law has studied the -question at several meetings and in 1883, at its meeting at Munich (see -Annuaire, VII. p. 156), among a body of fifteen articles concerning the -conflict of the Criminal Laws of different States, adopted the following -(article 8):--"Every State has a right to punish acts committed by -foreigners outside its territory and violating its penal laws when those -acts contain an attack upon its social existence or endanger its -security and when they are not provided against by the Criminal Law of -the territory where they take place." But it must be emphasised that -this resolution has value _de lege ferenda_ only.] - -[Footnote 243: The case of Cirilo Pouble--see Moore, II. § 200, pp. -227-228--concerning which the United States at first were inclined to -intervene, proved to be a case of a crime committed within Spanish -jurisdiction. The case of John Anderson--see Moore, I. § 174, p. 933--is -likewise not relevant, as he claimed to be a British subject.] - -[Footnote 244: See Westlake, I. p. 252; Taylor, § 192; Calvo, VI. §§ -171-173; Moore, II. § 201, and "Report on Extraterritorial Crime and the -Cutting Case" (1887); Rolin in R.I. XX. (1888), pp. 559-577. The case is -fully discussed and the American claim is disputed by Mendelssohn -Bartholdy, "Das räumliche Herrschaftsgebiet des Strafgesetzes" (1908), -pp. 135-143.] - - - - -CHAPTER III - -RESPONSIBILITY OF STATES - - -I - -ON STATE RESPONSIBILITY IN GENERAL - - Grotius, II. c. 21, § 2--Pufendorf, VIII. c. 6, § 12--Vattel, II. - §§ 63-78--Hall, § 65--Halleck, I. pp. 440-444--Wharton, I. § - 21--Moore, VI. §§ 979-1039--Wheaton, § 32--Bluntschli, § - 74--Heffter, §§ 101-104--Holtzendorff in Holtzendorff, II. pp. - 70-74--Liszt, § 24--Ullmann, § 39--Bonfils, Nos. - 324-332--Despagnet, No. 466--Piedelièvre, I. pp. - 317-322--Pradier-Fodéré, I. Nos. 196-210--Rivier, I. pp. - 40-44--Calvo, III. §§ 1261-1298--Fiore, I. Nos. 659-679, and Code, - Nos. 591-610--Martens, I. § 118--Clunet, "Offenses et actes - hostiles commis par particuliers contre un état étranger" - (1887)--Triepel, "Völkerrecht und Landesrecht" (1899), pp. - 324-381--Anzillotti, "Teoria generale della responsabilità dello - stato nel diritto internazionale" (1902)--Wiese, "Le droit - international appliqué aux guerres civiles" (1898), pp. - 43-65--Rougier, "Les guerres civiles et le droit des gens" (1903), - pp. 448-474--Baty, "International Law" (1908), pp. - 91-242--Anzillotti in R.G. XIII. (1906), pp. 5-29 and - 285-309--Foster in A.J. I. (1907), pp. 5-10--Bar in R.I. 2nd Ser. - I. (1899), pp. 464-481. - -[Sidenote: Nature of State Responsibility.] - -§ 148. It is often maintained that a State, as a sovereign person, can -have no legal responsibility whatever. This is only correct with -reference to certain acts of a State towards its subjects. Since a State -can abolish parts of its Municipal Law and can make new Municipal Law, -it can always avoid legal, although not moral, responsibility by a -change of Municipal Law. Different from this internal autocracy is the -external responsibility of a State to fulfil its international legal -duties. Responsibility for such duties is, as will be remembered,[245] a -quality of every State as an International Person, without which the -Family of Nations could not peaceably exist. Although there is no -International Court of Justice which could establish such -responsibility and pronounce a fine or other punishment against a State -for neglect of its international duties, State responsibility concerning -international duties is nevertheless a _legal_ responsibility. For a -State cannot abolish or create new International Law in the same way as -it can abolish or create new Municipal Law. A State, therefore, cannot -renounce its international duties unilaterally[246] at discretion, but -is and remains legally bound by them. And although there is not and -never will be a central authority above the single States to enforce the -fulfilment of these duties, there is the legalised self-help of the -single States against one another. For every neglect of an international -legal duty constitutes an international delinquency,[247] and the -violated State can through reprisals or even war compel the delinquent -State to comply with its international duties. It is only theorists who -deny the possibility of a legal responsibility of States, the practice -of the States themselves recognises it distinctly, although there may in -a special case be controversy as to whether a responsibility is to be -borne. And State responsibility is now in a general way recognised for -the time of war by article 3 of the Hague Convention of 1907, concerning -the Laws and Customs of War on Land, which stipulates: "A belligerent -party which violates the provisions of the said Regulations shall, if -the case demands, be liable to make compensation. It shall be -responsible for all acts committed by persons forming part of its armed -forces." - -[Footnote 245: See above, § 113.] - -[Footnote 246: See Annex to Protocol I. of Conference of London, 1871, -where the Signatory Powers proclaim that "it is an essential principle -of the Law of Nations that no Power can liberate itself from the -engagements of a treaty, or modify the stipulations thereof, unless with -the consent of the contracting Powers by means of an amicable -arrangement."] - -[Footnote 247: See below, § 151.] - -[Sidenote: Original and Vicarious State Responsibility.] - -§ 149. Now if we examine the various international duties out of which -responsibility of a State may rise, we find that there is a necessity -for two different kinds of State responsibility to be distinguished. -They may be named "original" in contradistinction to "vicarious" -responsibility. I name as "original" the responsibility borne by a State -for its own--that is, its Government's actions, and for such actions of -the lower agents or private individuals as are performed at the -Government's command or with its authorisation. But States have to bear -another responsibility besides that just mentioned. For States are, -according to the Law of Nations, in a sense responsible for certain acts -other than their own--namely, certain unauthorised injurious acts of -their agents, of their subjects, and even of such aliens as are for the -time living within their territory. This responsibility of States for -acts other than their own I name "vicarious" responsibility. Since the -Law of Nations is a law between States only, and since States are the -sole exclusive subjects of International Law, individuals are mere -objects[248] of International Law, and the latter is unable to confer -directly rights and duties upon individuals. And for this reason the Law -of Nations must make every State in a sense responsible for certain -internationally injurious acts committed by its officials, subjects, and -such aliens as are temporarily resident on its territory.[249] - -[Footnote 248: See below, § 290.] - -[Footnote 249: The distinction between original and vicarious -responsibility was first made, in 1905, in the first edition of this -treatise and ought therefore to have been discussed by Anzillotti in his -able article in R.G. XIII. (1906), p. 292. The fact that he does not -appreciate this distinction is prejudicial to the results of his -researches concerning the responsibility of States.] - -[Sidenote: Essential Difference between Original and Vicarious -Responsibility.] - -§ 150. It is, however, obvious that original and vicarious State -responsibility are essentially different. Whereas the one is -responsibility of a State for a neglect of its own duty, the other is -not. A neglect of international legal duties by a State constitutes an -international delinquency. The responsibility which a State bears for -such delinquency is especially grave, and requires, apart from other -especial consequences, a formal expiatory act, such as an apology at -least, by the delinquent State to repair the wrong done. On the other -hand, the vicarious responsibility which a State bears requires chiefly -compulsion to make those officials or other individuals who have -committed internationally injurious acts repair as far as possible the -wrong done, and punishment, if necessary, of the wrongdoers. In case a -State complies with these requirements, no blame falls upon it on -account of such injurious acts. But of course, in case a State refuses -to comply with these requirements, it commits thereby an international -delinquency, and its hitherto vicarious responsibility turns _ipso -facto_ into original responsibility. - - -II - -STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES - - See the literature quoted above at the commencement of § 148. - -[Sidenote: Conception of International Delinquencies.] - -§ 151. International delinquency is every injury to another State -committed by the head and the Government of a State through violation of -an international legal duty. Equivalent to acts of the head and -Government are acts of officials or other individuals commanded or -authorised by the head or Government. - -An international delinquency is not a crime, because the delinquent -State, as a Sovereign, cannot be punished, although compulsion may be -exercised to procure a reparation of the wrong done. - -International delinquencies in the technical sense of the term must not -be confounded either with so-called "Crimes against the Law of Nations" -or with so-called "International Crimes." "Crimes against the Law of -Nations" in the wording of many Criminal Codes of the single States are -such acts of individuals against foreign States as are rendered criminal -by these Codes. Of these acts, the gravest are those for which the State -on whose territory they are committed bears a vicarious responsibility -according to the Law of Nations. "International Crimes," on the other -hand, refer to crimes like piracy on the high seas or slave trade, which -either every State can punish on seizure of the criminals, of whatever -nationality they may be, or which every State has by the Law of Nations -a duty to prevent. - -An international delinquency must, further, not be confounded with -discourteous and unfriendly acts. Although such acts may be met by -retorsion, they are not illegal and therefore not delinquent acts. - -[Sidenote: Subjects of International Delinquencies.] - -§ 152. An international delinquency may be committed by every member of -the Family of Nations, be such member a full-Sovereign, half-Sovereign, -or part-Sovereign State. Yet, half- and part-Sovereign States can commit -international delinquencies in so far only as they have a footing within -the Family of Nations, and therefore international duties of their own. -And even then the circumstances of each case decide whether the -delinquent has to account for its neglect of an international duty -directly to the wronged State, or whether it is the full-Sovereign State -(suzerain, federal, or protectorate-exercising State) to which the -delinquent State is attached that must bear a vicarious responsibility -for the delinquency. On the other hand, so-called Colonial States -without any footing whatever within the Family of Nations and, further, -the member-States of the American Federal States, which likewise lack -any footing whatever within the Family of Nations because all their -possible international relations are absorbed by the respective Federal -States, cannot commit an international delinquency. Thus an injurious -act against France committed by the Government of the Commonwealth of -Australia or by the Government of the State of California in the United -States of America, would not be an international delinquency in the -technical sense of the term, but merely an internationally injurious act -for which Great Britain or the United States of America must bear a -vicarious responsibility. An instance of this is to be found in the -conflict[250] which arose in 1906 between Japan and the United States of -America on account of the segregation of Japanese children by the Board -of Education of San Francisco and the demand of Japan that this measure -should be withdrawn. The Government of the United States at once took -the side of Japan, and endeavoured to induce California to comply with -the Japanese demands. - -[Footnote 250: See Hyde in "The Green Bag," XIX. (1907), pp. 38-49; Root -in A.J. I. (1907), pp. 273-286; Barthélemy in R.G. XIV. (1907), pp. -636-685.] - -[Sidenote: State Organs able to commit International Delinquencies.] - -§ 153. Since States are juristic persons, the question arises, Whose -internationally injurious acts are to be considered State acts and -therefore international delinquencies? It is obvious that acts of this -kind are, first, all such acts as are performed by the heads of States -or by the members of Government acting in that capacity, so that their -acts appear as State acts. Acts of such kind are, secondly, all acts of -officials or other individuals which are either commanded or authorised -by Governments. On the other hand, unauthorised acts of corporations, -such as Municipalities, or of officials, such as magistrates or even -ambassadors, or of private individuals, never constitute an -international delinquency. And, further, all acts committed by heads of -States and members of Government outside their official capacity, simply -as individuals who act for themselves and not for the State, are not -international delinquencies either.[251] The States concerned must -certainly bear a vicarious responsibility for all such acts, but for -that very reason these acts do not comprise international delinquencies. - -[Footnote 251: See below §§ 157-158.] - -[Sidenote: No International Delinquency without Malice or culpable -Negligence.] - -§ 154. An act of a State injurious to another State is nevertheless not -an international delinquency if committed neither wilfully and -maliciously nor with culpable negligence. Therefore, an act of a State -committed by right or prompted by self-preservation in necessary -self-defence does not contain an international delinquency, however -injurious it may actually be to another State. And the same is valid in -regard to acts of officials or other individuals committed by command or -with the authorisation of a Government. - -[Sidenote: Objects of International Delinquencies.] - -§ 155. International delinquencies may be committed against so many -different objects that it is impossible to enumerate them. It suffices -to give some striking examples. Thus a State may be injured--in regard -to its independence through an unjustified intervention; in regard to -its territorial supremacy through a violation of its frontier; in regard -to its dignity through disrespectful treatment of its head or its -diplomatic envoys; in regard to its personal supremacy through forcible -naturalisation of its citizens abroad; in regard to its treaty rights -through an act violating a treaty; in regard to its right of protection -over citizens abroad through any act that violates the body, the honour, -or the property[252] of one of its citizens abroad. A State may also -suffer various injuries in time of war by illegitimate acts of warfare, -or by a violation of neutrality on the part of a neutral State in favour -of the other belligerent. And a neutral may in time of war be injured in -various ways through a belligerent violating neutrality by acts of -warfare within the neutral State's territory; for instance, through a -belligerent man-of-war attacking an enemy vessel in a neutral port or in -neutral territorial waters, or through a belligerent violating -neutrality by acts of warfare committed on the Open Sea against neutral -vessels. - -[Footnote 252: That a State which does not pay its public debts due to -foreigners and refuses, on the demand of the home State of the -foreigners concerned, to make satisfactory arrangements commits -international delinquency there is no doubt. On the so-called Drago -doctrine and the Hague Convention concerning the Employment of Force for -the Recovery of Contract Debts, see above, § 135, No. 6.] - -[Sidenote: Legal consequences of International Delinquencies.] - -§ 156. The nature of the Law of Nations as a law between, not above, -Sovereign States excludes the possibility of punishing a State for an -international delinquency and of considering the latter in the light of -a crime. The only legal consequences of an international delinquency -that are possible under existing circumstances are such as create a -reparation of the moral and material wrong done. The merits and the -conditions of the special cases are, however, so different that it is -impossible for the Law of Nations to prescribe once for all what legal -consequences an international delinquency should have. The only rule -which is unanimously recognised by theory and practice is that out of an -international delinquency arises a right for the wronged State to -request from the delinquent State the performance of such expiatory acts -as are necessary for a reparation of the wrong done. What kind of acts -these are depends upon the special case and the discretion of the -wronged State. It is obvious that there must be a pecuniary reparation -for a material damage. Thus, according to article 3 of the Hague -Convention of 1907, concerning the Laws and Customs of War on Land, a -belligerent party which violates these laws shall, if the case demands, -be liable to make compensation. But at least a formal apology on the -part of the delinquent will in every case be necessary. This apology may -have to take the form of some ceremonial act, such as a salute to the -flag or to the coat of arms of the wronged State, the mission of a -special embassy bearing apologies, and the like. A great difference -would naturally be made between acts of reparation for international -delinquencies deliberately and maliciously committed, on the one hand, -and, on the other, for such as arise merely from culpable negligence. - -When the delinquent State refuses reparation of the wrong done, the -wronged State can exercise such means as are necessary to enforce an -adequate reparation. In case of international delinquencies committed in -time of peace, such means are reprisals[253] (including embargo and -pacific blockade) and war as the case may require. On the other hand, in -case of international delinquencies committed in time of war through -illegitimate acts of warfare on the part of a belligerent, such means -are reprisals and the taking of hostages.[254] - -[Footnote 253: See below, vol. II. § 34.] - -[Footnote 254: See below, vol. II. §§ 248 and 259.] - - -III - -STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS - - See the literature quoted above at the commencement of § 148, and - especially Moore, VI. §§ 998-1018. - -[Sidenote: Responsibility varies with Organs concerned.] - -§ 157. States must bear vicarious responsibility for all internationally -injurious acts of their organs. As, however, these organs are of -different kinds and of different position, the actual responsibility of -a State for acts of its organs varies with the agents concerned. It is -therefore necessary to distinguish between internationally injurious -acts of heads of States, members of Government, diplomatic envoys, -parliaments, judicial functionaries, administrative officials, and -military and naval forces. - -[Sidenote: Internationally injurious Acts of Heads of States.] - -§ 158. Such international injurious acts as are committed by heads of -States in the exercise of their official functions are not our concern -here, because they constitute international delinquencies which have -been discussed above (§§ 151-156). But a monarch can, just as any other -individual, in his private life commit many internationally injurious -acts, and the question is, whether and in what degree a State must bear -responsibility for such acts of its head. The position of a head of a -State, who is within and without his State neither under the -jurisdiction of a Court of Justice nor under any kind of disciplinary -control, makes it a necessity for the Law of Nations to claim a certain -vicarious responsibility from States for internationally injurious acts -committed by their heads in private life. Thus, for instance, when a -monarch during his stay abroad commits an act injurious to the property -of a foreign subject and refuses adequate reparation, his State may be -requested to pay damages on his behalf. - -[Sidenote: Internationally injurious Acts of Members of Government.] - -§ 159. As regards internationally injurious acts of members of a -Government, a distinction must be made between such acts as are -committed by the offenders in their official capacity, and other acts. -Acts of the first kind constitute international delinquencies, as stated -above (§ 153). But members of a Government can in their private life -perform as many internationally injurious acts as private individuals, -and we must ascertain therefore what kind of responsibility their State -must bear for such acts. Now, as members of a Government have not the -exceptional position of heads of States, and are, therefore, under the -jurisdiction of the ordinary Courts of Justice, there is no reason why -their State should bear for internationally injurious acts committed by -them in their private life a vicarious responsibility different from -that which it has to bear for acts of private persons. - -[Sidenote: Internationally injurious Acts of Diplomatic Envoys.] - -§ 160. The position of diplomatic envoys who, as representatives of -their home State, enjoy the privileges of exterritoriality, gives, on -the one hand, a very great importance to internationally injurious acts -committed by them on the territory of the receiving State, and, on the -other hand, excludes the jurisdiction of the receiving State over such -acts. The Law of Nations therefore makes the home State in a sense -responsible for all acts of an envoy injurious to the State or its -subjects in whose territory he resides. But it depends upon the merits -of the special case what measures beyond simple recall must be taken to -satisfy the wronged State. Thus, for instance, a crime committed by the -envoy on the territory of the receiving State must be punished by his -home State, and according to special circumstances and conditions the -home State may be obliged to disown an act of its envoy, to apologise or -express its regret for his behaviour, or to pay damages. It must, -however, be remembered that such injurious acts as an envoy performs at -the command or with the authorisation of the home State, constitute -international delinquencies for which the home State bears original -responsibility and for which the envoy cannot personally be blamed. - -[Sidenote: Internationally injurious Attitudes of Parliaments.] - -§ 161. As regards internationally injurious attitudes of parliaments, it -must be kept in mind that, most important as may be the part parliaments -play in the political life of a nation, they do not belong to the agents -which represent the States in their international relations with other -States. Therefore, however injurious to a foreign State an attitude of a -parliament may be, it can never constitute an international delinquency. -That, on the other hand, all States must bear vicarious responsibility -for such attitudes of their parliaments, there can be no doubt. But, -although the position of a Government is difficult in such cases, -especially in States that have a representative Government, this does -not concern the wronged State, which has a right to demand satisfaction -and reparation for the wrong done. - -[Sidenote: Internationally injurious Acts of Judicial Functionaries.] - -§ 162. Internationally injurious acts committed by judicial -functionaries in their private life are in no way different from such -acts committed by other individuals. But these functionaries may in -their official capacity commit such acts, and the question is how far a -State's vicarious responsibility for acts of its judicial functionaries -can reasonably be extended in face of the fact that in modern civilised -States these functionaries are to a great extent independent of their -Government.[255] Undoubtedly, in case of such denial or undue delay of -justice by the Courts as is internationally injurious, a State must find -means to exercise compulsion against such Courts. And the same is valid -with regard to an obvious and malicious act of misapplication of the law -by the Courts which is injurious to another State. But if a Court -observes its own proper forms of justice and nevertheless makes a -materially unjust order or pronounces a materially unjust judgment, -matters become so complicated that there is hardly a peaceable way in -which the injured State can successfully obtain reparation for the wrong -done, unless the other party consents to bring the case before a Court -of Arbitration. - -[Footnote 255: Wharton, II. § 230, comprises abundant and instructive -material on this question.] - -An illustrative case is that of the _Costa Rica Packet_,[256] which -happened in 1891. Carpenter, the master of this Australian whaling-ship, -was, by order of a Court of Justice, arrested on November 2, 1891, in -the port of Ternate, in the Dutch East Indies, for having committed -three years previously a theft on the sea within Dutch territorial -waters. He was, however, released on November 28, because the Court -found that the alleged crime was not committed within Dutch territorial -waters, but on the High Seas. Great Britain demanded damages for the -arrest of the master of the _Costa Rica Packet_, but Holland maintained -that, since the judicial authorities concerned had ordered the arrest -of Carpenter in strict conformity with the Dutch laws, the British claim -was unjustified. After some correspondence, extending over several -years, Great Britain and Holland agreed, in 1895, upon having the -conflict settled by arbitration and upon appointing the late Professor -de Martens of St. Petersburg as arbitrator. The award, given in 1899, -was in favour of Great Britain, and Holland was condemned to pay damages -to the master, the proprietors, and the crew of the _Costa Rica -Packet_.[257] - -[Footnote 256: See Bles in R.I. XXVIII. (1896), pp. 452-468; -Regelsperger in R.G. IV. (1897), pp. 735-745; Valery in R.G. V. (1898), -pp. 57-66; Moore, I. § 148. See also Ullmann, "De la responsabilité de -l'état en matière judiciaire" (1911).] - -[Footnote 257: The whole correspondence on the subject and the award are -printed in Martens, N.R.G. 2nd Ser. XXIII. (1898), pp. 48, 715, and -808.] - -[Sidenote: Internationally injurious Acts of administrative Officials -and Military and Naval Forces.] - -§ 163. Internationally injurious acts committed in the exercise of their -official functions by administrative officials and military and naval -forces of a State without that State's command or authorisation, are not -international delinquencies because they are not State acts. But a State -bears a wide, unlimited, and unrestricted vicarious responsibility for -such acts because its administrative officials and military and naval -forces are under its disciplinary control, and because all acts of such -officials and forces in the exercise of their official functions are -_prima facie_ acts of the respective State.[258] Therefore, a State has, -first of all, to disown and disapprove of such acts by expressing its -regret or even apologising to the Government of the injured State; -secondly, damages must be paid where required; and, lastly, the -offenders must be punished according to the merits of the special case. - -[Footnote 258: It is of importance to quote again here art. 3 of the -Hague Convention of 1907, concerning the Laws and Customs of War on -Land, which stipulates that a State is responsible for all acts -committed by its armed forces.] - -As regards the question what kind of acts of administrative officials -and military and naval forces are of an internationally injurious -character, the rule may safely be laid down that such acts of these -subjects are internationally injurious as would constitute -international delinquencies when committed by the State itself or with -its authorisation. Three very instructive cases may be quoted as -illustrative examples: - -(1) On September 26, 1887, a German soldier on sentry duty at the -frontier near Vexaincourt shot from the German side and killed an -individual who was on French territory. As this act of the sentry -violated French territorial supremacy, Germany disowned and apologised -for it and paid a sum of 50,000 francs to the widow of the deceased as -damages. The sentry, however, escaped punishment because he proved that -he had acted in obedience to orders which he had misunderstood. - -(2) On November 26, 1906, Hasmann, a member of the crew of the German -gunboat _Panther_,[259] at that time in the port of Itajahi in Brazil, -failed to return on board his ship. The commander of the _Panther_ sent -a searching party, comprising three officers in plain clothes and a -dozen non-commissioned officers and soldiers in uniform, on shore for -the purpose of finding the whereabouts of Hasmann. This party, during -the following night, penetrated into several houses, and compelled some -of the residents to assist them in their search for the missing Hasmann, -who, however, could not be found. He voluntarily returned on board the -following morning. As this act violated Brazilian territorial supremacy, -Brazil lodged a complaint with Germany, which, after an inquiry, -disowned the act of the commander of the _Panther_, formally apologised -for it, and punished the commander of the _Panther_ by relieving him of -his command.[260] - -[Footnote 259: See R.G. XIII. (1906), pp. 200-206.] - -[Footnote 260: Another example occurred in 1904, when the Russian Baltic -Fleet, on its way to the Far East during the Russo-Japanese war, fired -upon the Hull Fishing Fleet off the Dogger Bank; see below, vol. II. § -5.] - -(3) On July 15, 1911, while the Spanish were in occupation of Alcazar -in Morocco, M. Boisset, the French Consular Agent, who was riding back -to Alcazar from Suk el Arba with his native servants, was stopped at the -gate of the town by a Spanish sentinel. The sentinel refused to allow -him to enter unless he and his servants first delivered up their arms. -As M. Boisset refused, the sentinel barred the way with his fixed -bayonet and called out the guard. M. Boisset's horse reared, and the -sentinel thereupon covered him with his rifle. After parleying to no -purpose with the guard, to whom he explained who he was, the French -Consular Agent was conducted by an armed escort of Spanish soldiers to -the Spanish barracks. A native rabble followed upon the heels of the -procession and cried out: "The French Consular Agent is being arrested -by the Spaniards." Upon arriving at the barracks M. Boisset had an -interview with a Spanish officer, who, without in any way expressing -regret, merely observed that there had been a misunderstanding -(_equivocacione_), and allowed the French Consular Agent to go his way. -It is obvious that, as Consuls in Eastern non-Christian countries, Japan -now excepted, are exterritorial and inviolable, the arrest of M. Boisset -was a great injury to France, which lodged a complaint with Spain. As -promptly as July 19 the Spanish Government tendered a formal apology to -France, and instructed the Spanish Commander at Alcazar to tender a -formal apology to M. Boisset. - -But it must be specially emphasised that a State never bears any -responsibility for losses sustained by foreign subjects through -_legitimate_ acts of administrative officials and military and naval -forces. Individuals who enter foreign territory submit themselves to the -law of the land, and their home State has no right to request that they -should be otherwise treated than as the law of the land authorises a -State to treat its own subjects.[261] Therefore, since the Law of -Nations does not prevent a State from expelling aliens, the home State -of an expelled alien cannot request the expelling State to pay damages -for the losses sustained by the expelled through his having to leave the -country. Therefore, further, a State need not make any reparation for -losses sustained by an alien through legitimate measures taken by -administrative officials and military forces in time of war, -insurrection,[262] riot, or public calamity, such as a fire, an epidemic -outbreak of dangerous disease, and the like. - -[Footnote 261: Provided, however, such law does not violate essential -principles of justice. See below, § 320.] - -[Footnote 262: See below, § 167.] - - -IV - -STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS - - See the literature quoted above at the commencement of § 148, and - especially Moore, VI. §§ 1019-1031. - -[Sidenote: Vicarious in contradistinction to original State -Responsibility for Acts of Private Persons.] - -§ 164. As regards State responsibility for acts of private persons, it -is first of all necessary not to confound the original with the -vicarious responsibility of States for internationally injurious acts of -private persons. International Law imposes the duty upon every State to -prevent as far as possible its own subjects, and such foreign subjects -as live within its territory, from committing injurious acts against -other States. A State which either intentionally and maliciously or -through culpable negligence does not comply with this duty commits an -international delinquency for which it has to bear original -responsibility. But it is practically impossible for a State to prevent -all injurious acts which a private person might commit against a foreign -State. It is for that reason that a State must, according to -International Law, bear vicarious responsibility for such injurious -acts of private individuals as are incapable of prevention. - -[Sidenote: Vicarious responsibility for Acts of Private Persons relative -only.] - -§ 165. Now, whereas the vicarious responsibility of States for official -acts of administrative officials and military and naval forces is -unlimited and unrestricted, their vicarious responsibility for acts of -private persons is only relative. For their sole duty is to procure -satisfaction and reparation for the wronged State as far as possible by -punishing the offenders and compelling them to pay damages where -required. Beyond this limit a State is not responsible for acts of -private persons; there is in especial no duty of a State itself to pay -damages for such acts if the offenders are not able to do it. - -[Sidenote: Municipal Law for Offences against Foreign States.] - -§ 166. It is a consequence of the vicarious responsibility of States for -acts of private persons that by the Criminal Law of every civilised -State punishment is severe for certain offences of private persons -against foreign States, such as violation of ambassadors' privileges, -libel on heads of foreign States and on foreign envoys, and other -injurious acts.[263] In every case that arises the offender must be -prosecuted and the law enforced by the Courts of Justice. And it is -further a consequence of the vicarious responsibility of States for acts -of private persons that criminal offences of private persons against -foreign subjects--such offences are indirectly offences against the -respective foreign States because the latter exercise protection over -their subjects abroad--must be punished according to the ordinary law of -the land, and that the Civil Courts of Justice of the land must be -accessible for claims of foreign subjects against individuals living -under the territorial supremacy of such land. - -[Footnote 263: As regards the Criminal Law of England concerning such -acts, see Stephen's Digest, articles 96-103.] - -[Sidenote: Responsibility for Acts of Insurgents and Rioters.] - -§ 167. The vicarious responsibility of States for acts of insurgents and -rioters is the same as for acts of other private individuals. As soon -as peace and order are re-established, such insurgents and rioters as -have committed criminal injuries against foreign States must be punished -according to the law of the land. The point need not be mentioned at all -were it not for the fact that, in several cases of insurrection and -riots, claims have been made by foreign States against the local State -for damages for losses sustained by their subjects through acts of the -insurgents or rioters respectively, and that some writers[264] assert -that such claims are justified by the Law of Nations. The majority of -writers maintain, correctly, I think, that the responsibility of States -does not involve the duty to repair the losses which foreign subjects -have sustained through acts of insurgents and rioters. Individuals who -enter foreign territory must take the risk of an outbreak of -insurrections or riots just as the risk of the outbreak of other -calamities. When they sustain a loss from acts of insurgents or rioters, -they may, if they can, trace their losses to the acts of certain -individuals, and claim damages from the latter before the Courts of -Justice. The responsibility of a State for acts of private persons -injurious to foreign subjects reaches only so far that its Courts must -be accessible to the latter for the purpose of claiming damages from the -offenders, and must punish such of those acts as are criminal. And in -States which, as France for instance, have such Municipal Laws as make -the town or the county where an insurrection or riot has taken place -responsible for the pecuniary loss sustained by individuals during those -events, foreign subjects must be allowed to claim damages from the local -authorities for losses of such kind. But the State itself never has by -International Law a duty to pay such damages. - -[Footnote 264: See, for instance, Rivier, II. p. 43; Brusa in Annuaire -XVII. pp. 96-137; Bar in R.I. 2nd Ser. I. (1899), pp. 464-481.] - -The practice of the States agrees with this rule laid down by the -majority of writers. Although in some cases several States have paid -damages for losses of such kind, they have done it, not through -compulsion of law, but for political reasons. In most cases in which the -damages have been claimed for such losses, the respective States have -refused to comply with the request.[265] As such claims have during the -second half of the nineteenth century frequently been tendered against -American States which have repeatedly been the scene of insurrections, -several of these States have in commercial and similar treaties which -they concluded with other States expressly stipulated[266] that they are -not responsible for losses sustained by foreign subjects on their -territory through acts of insurgents and rioters. - -[Footnote 265: See the cases in Calvo, III. §§ 1283-1290.] - -[Footnote 266: See Martens, N.R.G. IX. p. 474 (Germany and Mexico); XV. -p. 840 (France and Mexico); XIX. p. 831 (Germany and Colombia); XXII. p. -308 (Italy and Colombia); and p. 507 (Italy and Paraguay).] - -The Institute of International Law has studied the matter and has -proposed[267] the following _Règlement_ concerning it:-- - - (1) Independently of the case in which indemnities are due to - foreigners by virtue of the general laws of the country, - foreigners have a right to compensation when they are injured as - to their person or as to their property in the course of a riot, - of an insurrection, or of a civil war: - - (_a_) When the act from which they have suffered is directed - against foreigners as such in general, or against them as under - the jurisdiction of a certain State, or - - (_b_) When the act from which they have suffered consists in - closing a port without due and proper previous notification, or in - retaining foreign ships in a port, or - - (_c_) When the injury is the result of an act contrary to the laws - committed by a government official, or - - (_d_) When the obligation to compensate is established by virtue - of the general principles of the law of war. - - (2) The obligation is equally well established when the injury has - been committed (No. 1, _a_ and _d_) on the territory of an - insurrectionary government, whether by this government itself, or - by one of its functionaries. - - On the other hand, certain demands for indemnity may be set aside - when they concern facts which occur after the government of the - State to which the injured person belongs has recognised the - insurrectionary government as a belligerent Power, and when the - injured person has continued to keep his domicile or his - habitation on the territory of the insurrectionary government. - - As long as the latter is considered by the government of the - person alleged to be injured as a belligerent Power, the demand - may only be addressed, in the case of paragraph 1 of article 2, to - the insurrectionary government and not to the legitimate - government. - - (3) The obligation to compensate disappears when the injured - persons are themselves a cause of the event which has brought the - injury.[268] Notably no obligation exists to indemnify those who - have returned to the country or who wish to give themselves up to - commerce or industry there, when they know, or ought to know, that - troubles have broken out, nor to indemnify those who establish - themselves or sojourn in a country which offers no security on - account of the presence of savage tribes, unless the government of - the country has given express assurance to immigrants. - - (4) The government of a Federal State composed of a certain number - of smaller States, which it represents from an international point - of view, may not plead, in order to avoid the responsibility which - falls upon it, the fact that the constitution of the Federal State - does not give it the right to control the member-States, nor the - right to exact from them the discharge of their obligations. - - (5) The stipulations mutually exempting States from the duty of - giving their diplomatic protection ought not to comprise the cases - of refusal of justice, or of evident violation of justice or of - International Law.[269] - -[Footnote 267: At its meeting at Neuchâtel in 1900; see Annuaire, XVIII. -p. 254.] - -[Footnote 268: For example, in the case of conduct which is particularly -provocative to a crowd.] - -[Footnote 269: The Institute of International Law has likewise--see -Annuaire, XVIII. pp. 253 and 256--expressed the two following -_voeux_:-- - -(_a_) The Institute of International Law expresses the wish that the -States should avoid inserting in treaties clauses of reciprocal -irresponsibility. It considers that these clauses are wrong in exempting -States from the fulfilment of their duty of protecting their nationals -abroad and of their duty of protecting foreigners on their territory. It -considers that the States which, on account of extraordinary -circumstances, do not feel themselves at all in a position to assure -protection in a sufficiently efficacious manner to foreigners on their -territory, can only avoid the consequences of this condition of things -by temporarily prohibiting foreigners to enter their territory. - -(_b_) Recourse to international commissions of inquiry and to -international tribunals is in general recommended for all differences -which may arise on account of injury to foreigners in the course of a -riot, an insurrection, or of civil war.] - - - - -PART II - -THE OBJECTS OF THE LAW OF NATIONS - - - - -CHAPTER I - -STATE TERRITORY - - -I - -ON STATE TERRITORY IN GENERAL - - Vattel, II. §§ 79-83--Hall, § 30--Westlake, I. pp. - 84-88--Lawrence, §§ 71-72--Phillimore, I. §§ 150-154--Twiss, I. §§ - 140-144--Halleck, I. pp. 150-156--Taylor, § 217--Wheaton, §§ - 161-163--Moore, I. § 125--Bluntschli, § 277--Hartmann, § - 58--Holtzendorff in Holtzendorff, II. pp. 225-232--Gareis, § - 18--Liszt, § 9--Ullmann, § 86--Heffter, §§ 65-68--Bonfils, No. - 483--Despagnet, Nos. 374-377--Pradier-Fodéré, II. No. - 612--Mérignhac, II. pp. 356-366--Nys, I. pp. 402-412--Rivier, I. - pp. 135-142--Calvo, I. §§ 260-262--Fiore, I. Nos. - 522-530--Martens, I. § 88--Del Bon, "Proprietà territoriale degli - Stati" (1867)--Fricker, "Vom Staatsgebiet" (1867). - -[Sidenote: Conception of State Territory.] - -§ 168. State territory is that definite portion of the surface of the -globe which is subjected to the sovereignty of the State. A State -without a territory is not possible, although the necessary territory -may be very small, as in the case of the Free Town of Hamburg, the -Principality of Monaco, the Republic of San Marino, or the Principality -of Lichtenstein. A wandering tribe, although it has a Government and is -otherwise organised, is not a State before it has settled down on a -territory of its own. - -State territory is also named territorial property of a State. Yet it -must be borne in mind that territorial property is a term of Public Law -and must not be confounded with private property. The territory of a -State is not the property of the monarch, or of the Government, or even -of the people of a State; it is the country which is subjected to the -territorial supremacy or the _imperium_ of a State. This distinction -has, however, in former centuries not been sharply drawn.[270] In spite -of the _dictum_ of Seneca, "Omnia rex imperio possidet, singuli -dominio," the _imperium_ of the monarch and the State over the State -territory has very often been identified with private property of the -monarch or the State. But with the disappearance of absolutism this -identification has likewise disappeared. It is for this reason that -nowadays, according to the Constitutional Law of most countries, neither -the monarch nor the Government is able to dispose of parts of the State -territory at will and without the consent of Parliament.[271] - -[Footnote 270: And some writers refuse to draw it even nowadays, as, for -instance, Lawrence, § 71.] - -[Footnote 271: In English Constitutional Law this point is not settled. -The cession of the Island of Heligoland to Germany in 1890 was, however, -made conditional on the approval of Parliament.] - -It must, further, be emphasised that the territory of a State is totally -independent of the racial character of the inhabitants of the State. The -territory is the public property of the State, and not of a nation in -the sense of a race. The State community may consist of different -nations, as, for instance, the British or the Swiss or the Austrians. - -[Sidenote: Different kinds of Territory.] - -§ 169. The territory of a State may consist of one piece of the surface -of the globe only, such as that of Switzerland. Such kind of territory -is named "integrate territory" (_territorium clausum_). But the -territory of a State may also be dismembered and consist of several -pieces, such as that of Great Britain. All States with colonies have a -"dismembered territory." - -If a territory or a piece of it is absolutely surrounded by the -territory of another State, it is named an "enclosure." Thus the -Republic of San Marino is an enclosure of Italy, and Birkenfeld, a piece -of the territory of the Grand Duchy of Oldenburg situated on the river -Rhine, is an enclosure of Prussia. - -Another distinction is that between motherland and colonies. Colonies -rank as territory of the motherland, although they may enjoy complete -self-government and therefore be called Colonial States. Thus, if viewed -from the standpoint of the Law of Nations, the Dominion of Canada, the -Commonwealth of Australia, New Zealand, and the Union of South Africa -are British territory. - -As regards the relation between the Suzerain and the Vassal State, it is -certain that the vassal is not, in the strict sense of the term, a part -of the territory of the suzerain. Crete and Egypt are not Turkish -territory, although under Turkish suzerainty. But no general rule can be -laid down, as everything depends on the merits of the special case, and -as the vassal, even if it has some footing of its own within the Family -of Nations, is internationally for the most part considered a mere -portion of the Suzerain State.[272] - -[Footnote 272: See above, § 91.] - -[Sidenote: Importance of State Territory.] - -§ 170. The importance of State territory lies in the fact that it is the -space within which the State exercises its supreme authority. State -territory is an object of the Law of Nations because the latter -recognises the supreme authority of every State within its territory. -Whatever person or thing is on or enters into that territory, is _ipso -facto_ subjected to the supreme authority of the respective State -according to the old rules, _Quidquid est in territorio, est etiam de -territorio_ and _Qui in territorio meo est, etiam meus subditus est_. No -foreign authority has any power within the boundaries of the home -territory, although foreign Sovereigns and diplomatic envoys enjoy the -so-called privilege of exterritoriality, and although the Law of Nations -does, and international treaties may, restrict[273] the home authority -in many points in the exercise of its sovereignty. - -[Footnote 273: See above, §§ 126-128.] - -[Sidenote: One Territory, one State.] - -§ 171. The supreme authority which a State exercises over its territory -makes it apparent that on one and the same territory can exist one -full-Sovereign State only. Two or more full-Sovereign States on one and -the same territory are an impossibility. The following five cases, of -which the Law of Nations is cognisant, are apparent, but not real, -exceptions to this rule. - -(1) There is, first, the case of the so-called _condominium_. It happens -sometimes that a piece of territory consisting of land or water is under -the joint _tenancy_ of two or more States, these several States -exercising sovereignty conjointly over such piece and the individuals -living thereon. Thus Schleswig-Holstein and Lauenburg from 1864 till -1866 were under the _condominium_ of Austria and Prussia. Thus, further, -Moresnet (Kelmis), on the frontier of Belgium and Prussia, is under the -_condominium_ of these two States[274] because they have not yet come to -an agreement regarding the interpretation of a boundary treaty of 1815 -between the Netherlands and Prussia. And since 1898 the Soudan is under -the _condominium_ of Great Britain and Egypt. It is easy to show that in -such cases[275] there are not two States on one and the same territory, -but pieces of territory, the destiny of which is not decided, and which -are kept separate from the territories of the interested States[276] -under a separate administration. Until a final settlement the interested -States do not exercise each an individual sovereignty over these pieces, -but they agree upon a joint administration under their conjoint -sovereignty. - -[Footnote 274: See Schröder, "Das grenzstreitige Gebiet von Moresnet" -(1902).] - -[Footnote 275: The New Hebrides are materially likewise under a -_condominium_, namely, that of Great Britain and France, although -article 1 of the Convention of October 20, 1906--see Martens, N.R.G. 3rd -Ser. I. (1909), p. 523--speaks only of "a region of joint influence" -with regard to the New Hebrides. See Brunet, "Le Régime International -des Nouvelles-Hebrides" (1908), and Politis in R.G. XIV. (1907), pp. -689-759.] - -[Footnote 276: As regards the proposed _condominium_ over Spitzbergen, -see Waultrin in R.G. XV. (1908), pp. 80-105, and Piccioni in R.G. XVI. -(1909), pp. 117-134.] - -(2) The second case is that of the administration of a piece of -territory by a foreign Power, with the consent of the owner-State. Thus, -since 1878 the Turkish island of Cyprus has been under British -administration, and the then Turkish provinces of Bosnia and Herzegovina -were from 1878 to 1908 under the administration of Austria-Hungary. In -these cases a cession of pieces of territory has for all practical -purposes taken place, although in law the respective pieces still belong -to the former owner-State. Anyhow, it is certain that only one -sovereignty is exercised over these pieces--namely, the sovereignty of -the State which exercises administration. On the other hand, however, -the fact that in these cases pieces of territory have for all practical -purposes been ceded to another State does not empower the latter -arbitrarily to annex the territory without the consent of the State -owning it in law. Austria-Hungary had therefore no right to annex, in -1908, without the previous consent of Turkey, the provinces of Bosnia -and Herzegovina.[277] - -[Footnote 277: See above, § 50.] - -(3) The third case is that of a piece of territory leased or pledged by -the owner-State to a foreign Power. Thus, China in 1898 leased[278] the -district of Kiauchau to Germany, Wei-Hai-Wei and the land opposite the -island of Hong-Kong to Great Britain, and Port Arthur to Russia.[279] -Thus, further, in 1803 Sweden pledged the town of Wismar[280] to the -Grand Duchy of Mecklenburg-Schwerin, and the Republic of Genoa in 1768 -pledged the island of Corsica to France. All such cases comprise, for -all practical purposes, cessions of pieces of territory, but in strict -law they remain the property of the leasing State. And such property is -not a mere fiction, as some writers[281] maintain, for it is possible -that the lease comes to an end by expiration of time or by rescission. -Thus the lease, granted in 1894 by Great Britain to the former Congo -Free State, of the so-called Lado Enclave, was rescinded[282] in 1906. -However this may be, as long as the lease has not expired it is the -lease-holder who exercises sovereignty over the territory concerned. - -[Footnote 278: See below, § 216.] - -[Footnote 279: Russia in 1905, by the Peace Treaty of Portsmouth, -transferred her lease to Japan.] - -[Footnote 280: This transaction took place for the sum of 1,258,000 -thaler, on condition that Sweden, after the lapse of 100 years, should -be entitled to take back the town of Wismar on repayment of the money, -with 3 per cent. interest per annum. Sweden in 1903--see Martens, N.R.G. -2nd Ser. XXXI. (1905), pp. 572 and 574--formally waived her right to -retake the town.] - -[Footnote 281: See, for instance, Perrinjaquet in R.G. XVI. (1909), pp. -349-367.] - -[Footnote 282: By article 1 of the Treaty of London of May 9, 1906; see -Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 454.] - -(4) The fourth case is that of a piece of territory of which the use, -occupation, and control is in perpetuity granted by the owner-State to -another State with the exclusion of the exercise of any sovereign rights -over the territory concerned on the part of the grantor. In this -way[283] the Republic of Panama transferred, in 1903, to the United -States of America a ten-mile wide strip of territory for the purpose of -constructing, administrating, and defending the so-called Panama Canal. -In this case the grantor retains only in name the property of the -territory, the transfer of the land concerned is really cession all but -in name, and it is certain that only the grantee exercises sovereignty -there. - -[Footnote 283: See below, § 184, and Boyd in R.G. XVII. (1910), pp. -614-624.] - -(5) The fifth case is that of the territory of a Federal State. As a -Federal State is considered[284] a State of its own side by side with -its single member-States, the fact is apparent that the different -territories of the single member-States are at the same time -collectively the territory of the Federal State. But this fact is only -the consequence of the other illogical fact that sovereignty is divided -between a Federal State and its member-States. Two different -sovereignties are here by no means exercised over one and the same -territory, for so far as the Federal State possesses sovereignty the -member-States do not, and _vice versa_. - -[Footnote 284: See above, § 89.] - - -II - -THE DIFFERENT PARTS OF STATE TERRITORY - -[Sidenote: Real and Fictional parts of Territory.] - -§ 172. To the territory of a State belong not only the land within the -State boundaries, but also the so-called territorial waters. They -consist of the rivers, canals, and lakes which water the land, and, in -the case of a State with a seacoast, of the maritime belt and certain -gulfs, bays, and straits of the sea. These different kinds of -territorial waters will be separately discussed below in §§ 176-197. In -contradistinction to these real parts of State territory there are some -things that are either in every point or for some part treated as though -they were territorial parts of a State. They are fictional and in a -sense only parts of the territory. Thus men-of-war and other public -vessels on the high seas as well as in foreign territorial waters are -essentially in every point treated as though they were floating parts of -their home State.[285] And the houses in which foreign diplomatic envoys -have their official residence are in many points treated as though they -were parts of the home States of the respective envoys.[286] Again, -merchantmen on the high seas are for some points treated as though they -were floating parts of the territory of the State under whose flag they -legitimately sail.[287] - -[Footnote 285: See below, § 450.] - -[Footnote 286: See below, § 390.] - -[Footnote 287: See below, § 264.] - -[Sidenote: Territorial Subsoil.] - -§ 173. The subsoil beneath the territorial land and water[288] is of -importance on account of telegraph and telephone wires and the like, and -further on account of the working of mines and of the building of -tunnels. A special part of territory the territorial subsoil is not, -although this is frequently asserted. But it is a universally recognised -rule of the Law of Nations that the subsoil to an unbounded depth -belongs to the State which owns the territory on the surface. - -[Footnote 288: As regards the subsoil of the Open Sea, see below, §§ -287_c_ and 287_d_.] - -[Sidenote: Territorial Atmosphere.] - -§ 174. The space of the territorial atmosphere is no more a special part -of territory than the territorial subsoil, but it is of the greatest -importance on account of wires for telegraphs, telephones, electric -traction, and the like; further on account of wireless telegraphy and of -aviation. - -(1) Nothing need be said concerning wires for telegraphs and the like, -except that obviously the territorial State can prevent neighbouring -States from making use of its territorial atmosphere for such wires. - -(2) As regards wireless telegraphy,[289] the "International Radiographic -Convention," signed at Berlin on November 3, 1906, represents an -agreement[290] of the signatory Powers concerning the exchange of -radio-telegrams on the part of coast stations and ship stations, but it -contains no stipulation respecting the question in general whether the -territorial State is compelled to allow the passage over its territory -of waves emanating from a foreign wireless telegraphy station. There -ought to be no doubt that no such compulsion exists according to -customary International Law, and that therefore the territorial State -can prevent the passage of such waves[291] over its territory. - -[Footnote 289: See Meili, "Die drahtlose Telegraphie, &c." (1908); -Schneeli, "Drahtlose Telegraphie und Völkerrecht" (1908); Landsberg, -"Die drahtlose Telegraphie" (1909); Kausen, "Die drahtlose Telegraphie -im Völkerrecht" (1910); Rolland in R.G. XIII. (1906), pp. 58-92; -Fauchille in Annuaire, XXI. (1906), pp. 76-87; Bonfils, Nos. 531{10} and -531{11}; Despagnet, No. 433 _quater_; Meurer and Boidin in R.G. XVI. -(1909), pp. 76 and 261.] - -[Footnote 290: See below, §§ 287_a_, 287_b_, and 582, No. 4.] - -[Footnote 291: The Institute of International Law--see Annuaire, XXI. -(1906), p. 328--proposes by art. 3 of its "Régime de la Télégraphie sans -fil" to restrict the power of the territorial State to exclude such -waves from passing over its territory to the case in which the exclusion -is necessary in the interest of its security.] - -(3) The space of the territorial atmosphere is of particular importance -with regard to aviation, but no customary or conventional rules of -International Law are as yet in existence which settle the very much -controverted[292] matter. An international conference for the purpose of -agreeing upon an international convention concerning aviation met in -1910 at Paris, but did not produce any result. The fact is that, since -aviation is still in its infancy, practical experience is lacking -concerning many questions which can only be settled when aviation has -been more developed. It is tempting to apply the rules concerning the -maritime belt and the Open Sea analogously to the space of the -atmosphere, and, therefore, to distinguish between a zone of a certain -height, in which the territorial State can exercise sovereignty, and, on -the other hand, the atmosphere beyond that height, which is to be -considered free like the Open Sea. This comparison between the -atmosphere and the sea is, however, faulty for two reasons. Firstly, the -Open Sea is an international highway that connects distant lands between -which, except by sea, no communication would be possible, whereas the -atmosphere is not such an indispensable highway. Secondly, navigation on -the Open Sea comprises no danger whatever to the security of the -different States and the lives and property of their inhabitants, -whereas aviation threatens such danger to a great extent. The chief -question at issue is, therefore, whether the territorial State should or -should not be considered to exercise sovereignty over the space of the -atmosphere to an unbounded height, and to have the power to prevent the -passage of foreign aviators altogether, or to enact stringent rules with -which they have to comply. It would probably be best for the States in -conference to adopt such rules concerning the whole space of the -atmosphere as are similar to those valid by customary International Law -for the maritime belt, that is:--to recognise, on the one hand, -sovereignty of the territorial State over the space of its atmosphere, -but, on the other hand, to give a right to foreign States to demand from -the territorial State that foreign private--but not public!--air-vessels -may pass through its atmosphere, provided they comply with the rules -enacted by the territorial State for the aerial traffic.[293] - -[Footnote 292: The literature on aviation is abundant, see Holtzendorff, -II. p. 230; Lawrence, § 73; Bonfils, Nos. 531{1}-531{9}; Despagnet, Nos. -433 _bis_ and 433 _ter_; Mérignhac, II. pp. 398-410; Nys, I. pp. -523-532; Grünwald, "Das Luftschiff, &c." (1908); Meili, "Das Luftschiff, -&c." (1908); Meurer, "Luftschiffahrtsrecht" (1909); Meyer, "Die -Erschliessung des Luftraums und ihre rechtlichen Folgen" (1909); -Magnani, "Il diritto sullo spazio aereo e l'aeronautica" (1909); Leech, -"The Jurisprudence of the Air" (1910), a reprint from the _Journal of -the Royal Artillery_, vol. XXXVII.; Lycklama à Nijeholt, "Air -Sovereignty" (1910); Hazeltine, "The Law of the Air" (1911); Bielenberg, -"Die Freiheit des Luftraums" (1911); Catellani, "Il diritto aereo" -(1911); Sperl, "Die Luftschiffahrt, &c." (1911); Loubeyre, "Les -principes du droit aérien" (1911); Fauchille in Annuaire, XIX. (1902) -pp. 19-114, XXIV. (1911), and in R.G. VIII. (1901), pp. 414-485, XVII. -(1910), pp. 55-62; Zitelmann in the _Zeitschrift für internationales -Privat- und Öffentliches Recht_, XIX. (1909), pp. 458-496; Baldwin and -Kuhm in A.J. IV. (1910), pp. 95-108, 109-132; Baldwin in Z.V. V. (1911), -pp. 394-399.] - -[Footnote 293: The Institute of International Law is studying the -question of aviation, and passed, in 1911, at its meeting in Madrid, -some rules concerning the "Régime juridiques des Aéronefs"; see -Annuaire, XXIV. (1911).] - -Aviation through the atmosphere above the Open Sea will require special -regulation on account of the dangers to the vessels of all nations -traversing the sea, as will also aviation in general in time of war. - -[Sidenote: Inalienability of Parts of Territory.] - -§ 175. It should be mentioned that not every part of territory is -alienable by the owner-State. For it is evident that the territorial -waters are as much inseparable appurtenances of the land as are the -territorial subsoil and atmosphere. Only pieces of land together with -the appurtenant territorial waters are alienable parts of -territory.[294] There is, however, one exception to this, since boundary -waters[295] may wholly belong to one of the riparian States, and may -therefore be transferred through cession from one to the other riparian -State without the bank itself. But it is obvious that this is only an -apparent, not a real, exception to the rule that territorial waters are -inseparable appurtenances of the land. For boundary waters that are -ceded to the other riparian State remain an appurtenance of land, -although they are now an appurtenance of the one bank only. - -[Footnote 294: See below, § 185.] - -[Footnote 295: See below, § 199.] - - -III - -RIVERS - - Grotius, II. c. 2, §§ 11-15--Pufendorf, III. c. 3, § 8--Vattel, - II. §§ 117, 128, 129, 134--Hall, § 39--Westlake, I. pp. - 142-159--Lawrence, § 92--Phillimore, I. §§ 125-151--Twiss, I. § - 145--Halleck, I. pp. 171-177--Taylor, §§ 233-241--Walker, § - 16--Wharton, I. § 30--Moore, I. §§ 128-132--Wheaton, §§ - 192-205--Bluntschli, §§ 314, 315--Hartmann, § 58--Heffter, § - 77--Caratheodory in Holtzendorff, II. pp. 279-406--Gareis, § - 20--Liszt, §§ 9 and 27--Ullmann, §§ 87 and 105--Bonfils, Nos. - 520-531--Despagnet, Nos. 419-421--Mérignhac, II. pp. - 605-632--Pradier-Fodéré, II. Nos. 688-755--Nys, I. pp. 438-441, - and II. pp. 109-131--Rivier, I. p. 142 and § 14--Calvo, I. §§ - 302-340--Fiore, II. Nos. 755-776, and Code, §§ 283-285 and - 976-982--Martens, I. § 102, II. § 57--Delavaud, "Navigation ... - sur les fleuves internationaux" (1885)--Engehardt, "Du régime - conventionnel des fleuves internationaux" (1879), and "Histoire du - droit fluvial conventionnel" (1889)--Vernesco, "Des fleuves en - droit international" (1888)--Orban, "Etude sur le droit fluvial - international" (1896)--Berges, "Du régime de navigation des - fleuves internationaux" (1902)--Lopez, "Regimen internacional de - los rios navigables" (1905)--Huber in Z.V. I. (1906), pp. 29 and - 159--Hyde in A.J. IV. (1910), pp. 145-155. - -[Sidenote: Rivers State property of Riparian States.] - -§ 176. Theory and practice agree upon the rule that rivers are part of -the territory of the riparian State. Consequently, if a river lies -wholly, that is, from its source to its mouth, within the boundaries of -one and the same State, such State owns it exclusively. As such rivers -are under the sway of one State only and exclusively, they are named -"national rivers." Thus, all English, Scotch, and Irish rivers are -national, and so are, to give some Continental examples, the Seine, -Loire, and Garonne, which are French; the Tiber, which is Italian; the -Volga, which is Russian. But many rivers do not run through the land of -one and the same State only, whether they are so-called "boundary -rivers," that is, rivers which separate two different States from each -other, or whether they run through several States and are therefore -named "not-national rivers." Such rivers are not owned by one State -alone. Boundary rivers belong to the territory of the States they -separate, the boundary line[296] running either through the middle of -the river or through the middle of the so-called mid-channel of the -river. And rivers which run through several States belong to the -territories of the States concerned; each State owns that part of the -river which runs through its territory. - -[Footnote 296: See below, § 199, and Huber in Z.V. I. (1906), pp. 29 and -159.] - -There is, however, another group of rivers to be mentioned, which -comprises all such rivers as are navigable from the Open Sea and at the -same time either separate or pass through several States between their -sources and their mouths. Such rivers, too, belong to the territory of -the different States concerned, but they are nevertheless named -"international rivers," because freedom of navigation in time of peace -on all of those rivers in Europe and on many of them outside Europe for -merchantmen of all nations is recognised by International Law. - -[Sidenote: Navigation on National, Boundary and not-National Rivers.] - -§ 177. There is no rule of the Law of Nations in existence which grants -foreign States the right of admittance of their public or private -vessels to navigation on national rivers. In the absence of commercial -or other treaties granting such a right, every State can exclude foreign -vessels from its national rivers or admit them under certain conditions -only, such as the payment of a due and the like. The teaching of Grotius -(II. c. 2, § 12) that innocent passage through rivers must be granted -has not been recognised by the practice of the States, and Bluntschli's -assertion (§ 314) that such rivers as are navigable from the Open Sea -must in time of peace be open to vessels of all nations, is at best an -anticipation of a future rule of International Law, it does not as yet -exist. - -As regards boundary rivers and rivers running through several States, -the riparian States[297] can regulate navigation on such parts of these -rivers as they own, and they can certainly exclude vessels of -non-riparian States altogether unless prevented therefrom by virtue of -special treaties. - -[Footnote 297: See below, § 178_a_.] - -[Sidenote: Navigation on International Rivers.] - -§ 178. Whereas there is certainly no recognised principle of free -navigation on national, boundary, and not-national rivers, a movement -for the recognition of free navigation on international rivers set in at -the beginning of the nineteenth century. Until the French Revolution -towards the end of the eighteenth century, the riparian States of such -rivers as are now called international rivers could, in the absence of -special treaties, exclude foreign vessels altogether from those parts of -the rivers which run through their territory, or admit them under -discretionary conditions. Thus, the river Scheldt was wholly shut up in -favour of the Netherlands according to article 14 of the Peace Treaty of -Munster of 1648 between the Netherlands and Spain. The development of -things in the contrary direction begins with a Decree of the French -Convention, dated November 16, 1792, which opens the rivers Scheldt and -Meuse to the vessels of all riparian States. But it was not until the -Vienna Congress[298] in 1815 that the principle of free navigation on -the international rivers of Europe by merchantmen of not only the -riparian but of all States was proclaimed. The Congress itself realised -theoretically that principle in making arrangements[299] for free -navigation on the rivers Scheldt, Meuse, Rhine, and on the navigable -tributaries of the latter--namely, the rivers Neckar, Maine, and -Moselle--although more than fifty years elapsed before the principle -became realised in practice. - -[Footnote 298: Articles 108-117 of the Final Act of the Vienna Congress; -see Martens, N.R. II. p. 427.] - -[Footnote 299: "Règlements pour la libre navigation des rivières"; see -Martens, N.R. II. p. 434.] - -The next step was taken by the Peace Treaty of Paris of 1856, which by -its article 15[300] stipulated free navigation on the Danube and -expressly declared the principle of the Vienna Congress regarding free -navigation on international rivers for merchantmen of all nations as a -part of "European Public Law." A special international organ for the -regulation of navigation on the Danube was created, the so-called -European Danube Commission. - -[Footnote 300: See Martens, N.R.G. XV. p. 776. The documents concerning -navigation on the Danube are collected by Sturdza, "Recueil de documents -relatifs à la liberté de navigation du Danube" (Berlin, 1904).] - -A further development took place at the Congo Conference at Berlin in -1884-85, since the General Act[301] of this Conference stipulated free -navigation on the rivers Congo and Niger and their tributaries, and -created the so-called "International Congo Commission" as a special -international organ for the regulation of the navigation of the said -rivers. - -[Footnote 301: See Martens, N.R.G. 2nd Ser. X. p. 417.] - -Side by side with these general treaties, which recognise free -navigation on international rivers, stand treaties[302] of several South -American States with other States concerning free navigation for -merchantmen of all nations on a number of South American rivers. And the -Arbitration Court in the case of the boundary dispute between Great -Britain and Venezuela decided in 1903 in favour of free navigation for -merchantmen of all nations on the rivers Amakourou and Barima. - -[Footnote 302: See Taylor, § 238, and Moore, I. § 131, pp. 639-651.] - -Thus the principle of free navigation, which is a settled fact as -regards all European and some African international rivers, becomes more -and more extended over all other international rivers of the world. But -when several writers maintain that free navigation on all international -rivers of the world is already a recognised rule of the Law of Nations, -they are decidedly wrong, although such a universal rule will certainly -be proclaimed in the future. There can be no doubt that as regards the -South American rivers the principle is recognised by treaties between a -small number of Powers only. And there are examples which show that the -principle is not yet universally recognised. Thus by article 4 of the -Treaty of Washington of 1854 between Great Britain and the United States -the former grants to vessels of the latter free navigation on the river -St. Lawrence as a revocable privilege, and article 26 of the Treaty of -Washington of 1871 stipulates for vessels of the United States, but not -for vessels of other nations, free navigation "for ever" on the same -river.[303] - -[Footnote 303: See Wharton, pp. 81-83; Moore, I. § 131, p. 631, and -Hall, § 39.] - -However this may be, the principle of free navigation embodies the rule -that vessels of all nations must be admitted without payment of any dues -whatever. Yet this principle does not exclude the levy of dues from all -navigating vessels for expenses incurred by the riparian States for such -improvements of the navigability of rivers as embankments, breakwaters, -and the like.[304] - -[Footnote 304: As regards the question of levying dues for navigation of -the rivers Rhine and Elbe, see Arndt in Z.V. IV. (1910), pp. 208-229.] - -I should mention that the Institute of International Law, at its meeting -at Heidelberg in 1888, adopted a _Projet de Règlement international de -navigation fluviale_,[305] which comprises forty articles. - -[Footnote 305: See Annuaire, IX. p. 182.] - -[Sidenote: Utilisation of the flow of rivers.] - -§ 178_a_. Apart from navigation on rivers, the question of the -utilisation of the flow of rivers is of importance. With regard to -national rivers, the question can not indeed be raised, since the local -State is absolutely unhindered in the utilisation of the flow. But the -flow of not-national, boundary, and international rivers is not within -the arbitrary power of one of the riparian States, for it is a rule of -International Law[306] that no State is allowed to alter the natural -conditions of its own territory to the disadvantage of the natural -conditions of the territory of a neighbouring State. For this reason a -State is not only forbidden to stop or to divert the flow of a river -which runs from its own to a neighbouring State, but likewise to make -such use of the water of the river as either causes danger to the -neighbouring State or prevents it from making proper use[307] of the -flow of the river on its part. Since, apart from special treaties -between neighbouring countries concerning special cases, neither -customary nor conventional detailed rules of International Law -concerning this subject are in existence, the Institute of International -Law, at its meeting at Madrid[308] in 1911, adopted the following -"_Réglementation internationale des cours d'eau internationaux au point -de vue de leur force motrice et de leur utilisation industrielle ou -agricole_":-- - - I. When a stream of water forms the frontier of two States, - neither State may, without the consent of the other, and in the - absence of a special and valid legal title, make any changes - prejudicial to the bank of the other State, nor allow such changes - to be made by individuals, societies, &c. Moreover, neither State - may on its own territory utilise the water, or allow it to be - utilised, in such a manner as to cause great damage to its - utilisation by the other State or by the individuals, societies, - &c., of the other. - - The foregoing conditions are also applicable when a lake is - situated between territories of more than two States. - - II. When a stream of water traverses successively the territories - of two or of several States:-- - - (1) The point at which this stream of water traverses the - frontiers of the two States, whether natural or from time - immemorial, may not be changed by the establishments of one of the - States without the assent of the other. - - (2) It is forbidden to make any alteration injurious to the - water, or to throw in injurious matter (coming from factories, - &c.). - - (3) Water may not be withdrawn by the establishments (especially - factories for the working of hydraulic pressure) in such a - quantity as to modify greatly the constitution, or, in other - words, the utilisable character or the essential character, of the - stream of water on its arrival at the territory nearer the mouth - of the river. - - The right of navigation by virtue of a title recognised by - International Law cannot be restricted by any usage whatever. - - (4) A State farther down the river may not make, or allow to be - made, in its territory any constructions or establishments which - might cause danger of flooding a State farther up the river. - - (5) The foregoing rules are applicable in the same way to the case - in which streams of water flow from a lake, which is situated in - one territory, into the territory of another State or the - territories of other States. - - (6) It is recommended that the States concerned appoint common - permanent Commissions which may give decisions, or at least may - give their advice, when such new establishments are built, or when - such modifications are made in the existing establishments, as may - influence the flow of the stream of water situated on the - territory of another State. - -[Footnote 306: See above, § 127.] - -[Footnote 307: See, for instance, the treaty of Washington of January -11, 1909--Martens, N.R.G. 3rd Ser. (1911), p. 208--between Great Britain -and the United States concerning the utilisation of the boundary waters -between the United States and Canada.] - -[Footnote 308: See Annuaire, XXIV. (1911). See also Bar in R.G. XVII. -(1910), pp. 281-288.] - - -IV - -LAKES AND LAND-LOCKED SEAS - - Vattel, I. § 294--Hall, § 38--Phillimore, I. §§ 205-205A--Twiss, - I. § 181--Halleck, I. p. 170--Moore, I. §§ 135-143--Bluntschli, § - 316--Hartmann, § 58--Heffter, § 77--Caratheodory in Holtzendorff, - II. pp. 378-385--Gareis, §§ 20-21--Liszt, § 9--Ullmann, §§ 88 and - 106--Bonfils, Nos. 495-505--Despagnet, No. 407--Mérignhac, II. - 587-596--Pradier-Fodéré, II. Nos. 640-649--Nys, I. pp. - 447-450--Calvo, I. §§ 301, 373, 383--Fiore, II. Nos. 811-813, and - Code, Nos. 279 and 1000--Martens, I. § 100--Rivier, I. pp. - 143-145, 230--Mischeff, "La Mer Noire et les détroits de - Constantinople" (1901)--Hunt in A.J. IV. (1910), pp. 285-313. - -[Sidenote: Lakes and land-locked seas State Property of Riparian -States.] - -§ 179. Theory and practice agree upon the rule that such lakes and -land-locked seas as are entirely enclosed by the land of one and the -same State are part of the territory of this State. Thus the Dead Sea in -Palestine is Turkish, the Sea of Aral is Russian, the Lake of Como is -Italian territory. As regards, however, such lakes and land-locked seas -as are surrounded by the territories of several States, no unanimity -exists. The majority of writers consider these lakes and land-locked -seas parts of the surrounding territories, but several[309] dissent, -asserting that these lakes and seas do not belong to the riparian -States, but are free like the Open Sea. The practice of the States seems -to favour the opinion of the majority of writers, for special treaties -frequently arrange what portions of such lakes and seas belong to the -riparian States.[310] Examples are:--The Lake of Constance,[311] which -is surrounded by the territories of Germany (Baden, Würtemberg, -Bavaria), Austria, and Switzerland (Thurgau and St. Gall); the Lake of -Geneva, which belongs to Switzerland and France; the Lakes of Huron, -Erie, and Ontario, which belong to British Canada and the United States; -the Caspian Sea, which belongs to Persia and Russia.[312] - -[Footnote 309: See, for instance, Calvo, I. § 301; Caratheodory in -Holtzendorff, II. p. 378.] - -[Footnote 310: As regards the utilisation of the flow of such lakes and -seas, the same is valid as that concerning the utilisation of the flow -of rivers; see above, § 178_a_.] - -[Footnote 311: See Stoffel, "Die Fischerei-Verhältnisse des Bodensees -unter besonderer Berücksichtigung der an ihm bestehenden Hoheitsrechte" -(1906).] - -[Footnote 312: But the Caspian Sea is almost entirely under Russian -control through the two treaties of Gulistan (1813) and Tourkmantschai -(1828). See Rivier, I. p. 144, and Phillimore, I. § 205.] - -[Sidenote: So-called International Lakes and Land-locked Seas.] - -§ 180. In analogy with so-called international rivers, such lakes and -land-locked seas as are surrounded by the territories of several States -and are at the same time navigable from the Open Sea, are called -"international lakes and land-locked seas." However, although some -writers[313] dissent, it must be emphasised that hitherto the Law of -Nations has not recognised the principle of free navigation on such -lakes and seas. The only case in which such free navigation is -stipulated is that of the lakes within the Congo district.[314] But -there is no doubt that in a near future this principle will be -recognised, and practically all so-called international lakes and -land-locked seas are actually open to merchantmen of all nations. Good -examples of such international lakes and land-locked seas are the -fore-named lakes of Huron, Erie, and Ontario. - -[Footnote 313: See, for instance, Rivier, I. p. 230; Caratheodory in -Holtzendorff, II. p. 378; Calvo, I. § 301.] - -[Footnote 314: Article 15 of the General Act of the Congo Conference. -(See Martens, N.R.G. 2nd Ser. X. p. 417.)] - -[Sidenote: The Black Sea.] - -§ 181. It is of interest to give some details regarding the Black Sea. -This is a land-locked sea which was undoubtedly wholly a part of Turkish -territory as long as the enclosing land was Turkish only, and as long as -the Bosphorus and the Dardanelles, the approach to the Black Sea, which -are exclusively part of Turkish territory, were not open for merchantmen -of all nations. But matters have changed through Russia, Roumania, and -Bulgaria having become littoral States. It would be wrong to maintain -that now the Black Sea belongs to the territories of the four States, -for the Bosphorus and the Dardanelles, although belonging to Turkish -territory, are nevertheless parts of the Mediterranean Sea, and are now -open to merchantmen of all nations. The Black Sea is consequently now -part of the Open Sea[315] and is not the property of any State. Article -11 of the Peace Treaty of Paris,[316] 1856, neutralised the Black Sea, -declared it open to merchantmen of all nations, but interdicted it to -men-of-war of the littoral as well as of other States, admitting only a -few Turkish and Russian public vessels for the service of their coasts. -But although the neutralisation was stipulated "formally and in -perpetuity," it lasted only till 1870. In that year, during the -Franco-German War, Russia shook off the restrictions of the Treaty of -Paris, and the Powers assembled at the Conference of London signed on -March 13, 1871, the Treaty of London,[317] by which the neutralisation -of the Black Sea and the exclusion of men-of-war therefrom were -abolished. But the right of the Porte to forbid foreign men-of-war -passage through the Dardanelles and the Bosphorus[318] was upheld by -that treaty, as was also free navigation for merchantmen of all nations -on the Black Sea. - -[Footnote 315: See below, § 252.] - -[Footnote 316: See Martens, N.R.G. XV. p. 775.] - -[Footnote 317: See Martens, N.R.G. XVIII. p. 303.] - -[Footnote 318: See below, § 197.] - - -V - -CANALS - - Westlake, I. pp. 320-331--Lawrence, § 90, and Essays, pp. - 41-162--Phillimore, I. §§ 399 and 207--Moore, III. §§ - 336-371--Caratheodory in Holtzendorff, II. pp. 386-405--Liszt, § - 27--Ullmann, § 106--Bonfils, Nos. 511-515--Despagnet, No. - 418--Mérignhac, II. pp. 597-604--Pradier-Fodéré, II. Nos. - 658-660--Nys, I. pp. 475-495--Rivier, I. § 16--Calvo, I. §§ - 376-380--Fiore, Code, Nos. 983-987--Martens, II. § 59--Sir Travers - Twiss in R.I. VII. (1875), p. 682, XIV. (1882), p. 572, XVII. - (1885), p. 615--Holland, Studies, pp. 270-298--Asser in R.I. XX. - (1888), p. 529--Bustamante in R.I. XXVII. (1895), p. - 112--Rossignol, "Le Canal de Suez" (1898)--Camand, "Étude sur le - régime juridique du Canal de Suez" (1899)--Charles-Roux, "L'Isthme - et le canal de Suez" (1901)--Othalom, "Der Suezkanal" - (1905)--Müller-Heymer, "Der Panamakanal in der Politik der - Vereinigten Staaten" (1909)--Arias, "The Panama Canal" - (1911)--Hains, Davis, Knapp, Wambough, Olney, and Kennedy in A.J. - III. (1909), pp. 354 and 885, IV. (1910), p. 314, V. (1911), pp. - 298, 615, 620. - -[Sidenote: Canals State Property of Riparian States] - -§ 182. That canals are parts of the territories of the respective -territorial States is obvious from the fact that they are artificially -constructed waterways. And there ought to be no doubt[319] that all the -rules regarding rivers must analogously be applied to canals. The matter -would need no special mention at all were it not for the interoceanic -canals which have been constructed during the second half of the -nineteenth century or are contemplated in the future. And as regards two -of these, the Emperor William (Kiel or Baltic) Canal, which connects the -Baltic with the North Sea, and the Corinth Canal, which connects the -Gulf of Corinth with the Gulf of Ægina, there is not much to be said. -The former is a canal made mainly for strategic purposes by the German -Empire entirely through German territory. Although Germany keeps it open -for navigation to vessels of all other nations, she exclusively controls -the navigation thereof, and can at any moment exclude foreign vessels at -discretion, or admit them upon any conditions she likes, apart from -special treaty arrangements to the contrary. The Corinth Canal is -entirely within the territory of Greece, and although the canal is kept -open for navigation to vessels of all nations, Greece exclusively -controls the navigation thereof. - -[Footnote 319: See, however, Holland, Studies, p. 278.] - -[Sidenote: The Suez Canal.] - -§ 183. The most important of the interoceanic canals is that of Suez, -which connects the Red Sea with the Mediterranean. Already in 1838 -Prince Metternich gave his opinion that such a canal, if ever made, -ought to become neutralised by an international treaty of the Powers. -When, in 1869, the Suez Canal was opened, jurists and diplomatists at -once discussed what means could be found to secure free navigation upon -it for vessels of all kinds and all nations in time of peace as well as -of war. In 1875 Sir Travers Twiss[320] proposed the neutralisation of -the canal, and in 1879 the Institute of International Law gave its -vote[321] in favour of the protection of free navigation on the canal by -an international treaty. In 1883 Great Britain proposed an international -conference to the Powers for the purpose of neutralising the canal, but -it took several years before an agreement was actualised. This was done -by the Convention of Constantinople[322] of October 29, 1888, between -Great Britain, Austria-Hungary, France, Germany, Holland, Italy, Spain, -Russia, and Turkey. This treaty comprises seventeen articles, whose more -important stipulations are the following:-- - -[Footnote 320: See R.I. VII. pp. 682-694.] - -[Footnote 321: See Annuaire, III. and IV. vol. I. p. 349.] - -[Footnote 322: See Martens, N.R.G. 2nd, Ser. XV. p. 557. It must, -however, be mentioned that Great Britain is a party to the Convention of -Constantinople under the reservation that its terms shall not be brought -into operation in so far as they would not be compatible with the -transitory and exceptional condition in which Egypt is put for the time -being in consequence of her occupation by British forces, and in so far -as they might fetter the liberty of action of the British Government -during the occupation of Egypt. But article 6 of the Declaration -respecting Egypt and Morocco signed at London on April 8, 1904, by Great -Britain and France (see Parliamentary Papers, France, No. 1 (1904), p. -9), has done away with this reservation, since it stipulates the -following:--"In order to ensure the free passage of the Suez Canal, his -Britannic Majesty's Government declare that they adhere to the -stipulations of the Treaty of October 29, 1888, and that they agree to -their being put in force. The free passage of the canal being thus -guaranteed, the execution of the last sentence of paragraph 1 as well as -of paragraph 2 of article 8 of that treaty will remain in abeyance." -(See Holland, Studies, p. 293, and Westlake, I. p. 328.)] - -(1) The canal is open in time of peace as well as of war to merchantmen -and men-of-war of all nations. No attempt to restrict this free usage of -the canal is allowed in time either of peace or of war. The canal can -never be blockaded (article 1). - -(2) In time of war, even if Turkey is a belligerent, no act of hostility -is allowed either inside the canal itself or within three sea miles from -its ports. Men-of-war of the belligerents have to pass through the canal -without delay. They may not stay longer than twenty-four hours, a case -of absolute necessity excepted, within the harbours of Port Said and -Suez, and twenty-four hours must intervene between the departure from -those harbours of a belligerent man-of-war and a vessel of the enemy. -Troops, munitions, and other war material may neither be shipped nor -unshipped within the canal and its harbours. All rules regarding -belligerents' men-of-war are likewise valid for their prizes (articles -4, 5, 6). - -(3) No men-of-war are allowed to be stationed inside the canal, but each -Power may station two men-of-war in the harbours of Port Said and Suez. -Belligerents, however, are not allowed to station men-of-war in these -harbours (article 7). No permanent fortifications are allowed in the -canal (article 2). - -(4) It is the task of Egypt to secure the carrying out of the stipulated -rules, but the consuls of the Powers in Egypt are charged to watch the -execution of these rules (articles 8 and 9). - -(5) The signatory Powers are obliged to notify the treaty to others and -to invite them to accede thereto (article 16). - -[Sidenote: The Panama Canal.] - -§ 184. Already in 1850 Great Britain and the United States in the -Clayton-Bulwer Treaty[323] of Washington had stipulated the free -navigation and neutralisation of a canal between the Pacific and the -Atlantic Ocean proposed to be constructed by the way of the river St. -Juan de Nicaragua and either or both of the lakes of Nicaragua and -Managua. In 1881 the building of a canal through the Isthmus of Panama -was taken in hand, but in 1888 the works were stopped in consequence of -the financial collapse of the Company undertaking its construction. -After this the United States came back to the old project of a canal by -the way of the river St. Juan de Nicaragua. For the eventuality of the -completion of this canal, Great Britain and the United States signed, on -February 5, 1900, the Convention of Washington, which stipulated free -navigation on and neutralisation of the proposed canal in analogy with -the Convention of Constantinople, 1888, regarding the Suez Canal, but -ratification was refused by the Senate of the United States. In the -following year, however, on November 18, 1901, another treaty was signed -and afterwards ratified. This so-called Hay-Pauncefote Treaty[324] -applies to a canal between the Atlantic and Pacific Oceans by whatever -route may be considered expedient, and its five articles are the -following:-- - -[Footnote 323: See Martens, N.R.G. XV. p. 187, and Moore, III. §§ -351-365. According to its article 8 this treaty was also to be applied -to a proposed canal through the Isthmus of Panama.] - -[Footnote 324: See Moore, III. §§ 366-368.] - - Article 1 - - The High Contracting Parties agree that the present Treaty shall - supersede the aforementioned Convention of April 19, 1850. - - Article 2 - - It is agreed that the canal may be constructed under the auspices - of the Government of the United States, either directly at its own - cost, or by gift or loan of money to individuals or corporations, - or through subscription to or purchase of stock or shares, and - that, subject to the provisions of the present Treaty, the said - Government shall have and enjoy all the rights incident to such - construction, as well as the exclusive right of providing for the - regulation and management of the canal. - - Article 3 - - The United States adopts, as the basis of the neutralisation of - such ship canal, the following Rules, substantially as embodied in - the Convention of Constantinople, signed October 29, 1888, for the - free navigation of the Suez Canal, that is to say:-- - - 1. The canal shall be free and open to the vessels of commerce and - of war of all nations observing these Rules, on terms of entire - equality, so that there shall be no discrimination against any - such nation, or its citizens or subjects, in respect of the - conditions or charges of traffic, or otherwise. Such conditions - and charges of traffic shall be just and equitable. - - 2. The canal shall never be blockaded, nor shall any right of war - be exercised or any act of hostility be committed within it. The - United States, however, shall be at liberty to maintain such - military police along the canal as may be necessary to - protect[325] it against lawlessness and disorder. - - [Footnote 325: This does not mean that the United States have a - right permanently to fortify the canal. Such a right has likewise - been deduced from article 23 of the Hay-Varilla Treaty of November - 18, 1903, which runs:--"If it should become necessary at any time - to employ armed forces for the safety or protection of the canal, - or of the ships that make use of the same, or the railways and - auxiliary works, the United States shall have the right, at all - times in its discretion, to use its police and its land and naval - forces or to establish fortifications for these purposes." - However, it would seem that by this article 23 only temporary - fortifications are contemplated. On the other hand, if read by - itself, article 3 of the Hay-Varilla Treaty, according to which - the Republic of Panama grants to the United States all the rights, - power, and authority which the United States would possess and - exercise if she were the sovereign of the territory concerned, - could be quoted as indirectly empowering the United States to - fortify the Panama Canal permanently. But the question is whether - article 3 must not be interpreted in connection with article 23. - The fact that article 23 stipulates expressly the power of the - United States temporarily to establish fortifications would seem - to indicate that it was intended to exclude permanent - fortifications. The question of the fortification of the Panama - Canal is discussed by Hains (_contra_) and Davis (_pro_) in A.J. - III. (1909), pp. 354-394 and pp. 885-908, and by Olney, Wambough, - and Kennedy in A.J. V. (1911), pp. 298, 615, 620.] - - 3. Vessels of war of a belligerent shall not revictual nor take - any stores in the canal except so far as may be strictly - necessary; and the transit of such vessels through the canal - shall be effected with the least possible delay in accordance with - the regulations in force, and with only such intermission as may - result from the necessities of the service. - - Prizes shall be in all respects subject to the same rules as - vessels of war of belligerents. - - 4. No belligerent shall embark or disembark troops, munitions of - war, or warlike materials in the canal, except in case of - accidental hindrance of the transit, and in such case the transit - shall be resumed with all possible despatch. - - 5. The provisions of this article shall apply to waters adjacent - to the canal, within three marine miles of either end. Vessels of - war of a belligerent shall not remain in such waters longer than - twenty-four hours at any one time except in case of distress, and - in such case shall depart as soon as possible; but a vessel of war - of one belligerent shall not depart within twenty-four hours from - the departure of a vessel of war of the other belligerent. - - 6. The plant, establishments, buildings and all works necessary to - the construction, maintenance, and operation of the canal shall be - deemed to be part thereof, for the purposes of this Treaty, and in - time of war, as in time of peace, shall enjoy complete immunity - from attack or injury by belligerents, and from acts calculated to - impair their usefulness as part of the canal. - - Article 4 - - It is agreed that no change of territorial sovereignty or of the - international relations of the country or countries traversed by - the before-mentioned canal shall affect the general principle of - neutralisation or the obligation of the high contracting parties - under the present Treaty. - - Article 5 - - The present Treaty shall be ratified by his Britannic Majesty and - by the President of the United States, by and with the advice and - consent of the Senate thereof; and the ratifications shall be - exchanged at Washington or at London at the earliest possible time - within six months from the date hereof. - - In faith whereof the respective Plenipotentiaries have signed this - Treaty and thereunto affixed their seals. - - Done in duplicate at Washington, the 18th day of November, in the - year of Our Lord 1901. - - (Seal) PAUNCEFOTE. - (Seal) JOHN HAY. - -On November 18, 1903, the so-called Hay-Varilla Treaty[326] was -concluded between the United States and the new Republic of Panama, -according to which, on the one hand, the United States guarantees and -will maintain the independence of the Republic of Panama, and, on the -other hand, the Republic of Panama grants[327] to the United States in -perpetuity for the construction, administration, and protection of a -canal between Colon and Panama the use, occupation, and control of a -strip of land required for the construction of the canal, and, further, -of land on both sides of the canal to the extent of five miles on either -side, with the exclusion, however, of the cities of Panama and Colon and -the harbours adjacent to these cities. According to article 18 of this -treaty the canal and the entrance thereto shall be neutral in -perpetuity, and shall be open to vessels of all nations as stipulated by -article 3 of the Hay-Pauncefote Treaty. - -[Footnote 326: See Martens, N.R.G. 2nd Ser. XXXI. p. 599.] - -[Footnote 327: That this grant is really cession all but in name, was -pointed out above, § 171 (4); see also below § 216.] - - -VI - -MARITIME BELT - - Grotius, II. c. 3, § 13--Vattel, I. §§ 287-290--Hall, §§ - 41-42--Westlake, I. pp. 183-192--Lawrence, § 187--Phillimore, I. - §§ 197-201--Twiss, I. §§ 144, 190-192--Halleck, I. pp. - 157-167--Taylor, §§ 247-250--Walker, § 17--Wharton, § 32--Moore, - I. §§ 144-152--Wheaton, §§ 177-180--Bluntschli, §§ 302, - 309-310--Hartmann, § 58--Heffter, § 75--Stoerk in Holtzendorff, - II. pp. 409-449--Gareis, § 21--Liszt, § 9--Ullmann, § 87--Bonfils, - Nos. 491-494--Despagnet, Nos. 403-414--Mérignhac, II. pp. - 370-392--Pradier-Fodéré, II. Nos. 617-639--Nys, I. pp. - 496-520--Rivier, I. pp. 145-153--Calvo, I. §§ 353-362--Fiore, II. - Nos. 801-809, and Code, Nos. 271-273, 1025--Martens, I. § - 99--Bynkershoek, "De dominio maris" and "Quaestiones juris - publici," I. c. 8--Ortolan, "Diplomatie de la mer" (1856), I. pp. - 150-175--Heilborn, System, pp. 37-57--Imbart-Latour, "La mer - territoriale, &c." (1889)--Godey, "La mer côtière" - (1896)--Schücking, "Das Küstenmeer im internationalen Recht" - (1897)--Perels, § 5--Fulton, "The Sovereignty of the Seas" (1911), - pp. 537-740--Barclay in Annuaire, XII. (1892), pp. 104-136, and - XIII. (1894), pp. 125-162--Martens in R.G. I. (1894), pp. - 32-43--Aubert, _ibidem_, pp. 429-441--Engelhardt in R.I. XXVI. - (1894), pp. 209-213--Godey in R.G. III. (1896), pp. - 224-237--Lapradelle in R.G. V. (1898), pp. 264-284, 309-347. - -[Sidenote: State Property of Maritime Belt contested.] - -§ 185. Maritime belt is that part of the sea which, in contradistinction -to the Open Sea, is under the sway of the littoral States. But no -unanimity exists with regard to the nature of the sway of the littoral -States. Many writers maintain that such sway is sovereignty, that the -maritime belt is a part of the territory of the littoral State, and that -the territorial supremacy of the latter extends over its coast waters. -Whereas it is nowadays universally recognised that the Open Sea cannot -be State property, such part of the sea as makes the coast waters would, -according to the opinion of these writers, actually be the State -property of the littoral States, although foreign States have a right of -innocent passage of their merchantmen through the coast waters. - -On the other hand, many writers of great authority emphatically deny the -territorial character of the maritime belt and concede to the littoral -States, in the interest of the safety of the coast, only certain powers -of control, jurisdiction, police, and the like, but not sovereignty. - -This is surely erroneous, since the real facts of international life -would seem to agree with the first-mentioned opinion only. Its -supporters rightly maintain[328] that the universally recognised fact of -the exclusive right of the littoral State to appropriate the natural -products of the sea in the coast waters, especially the use of the -fishery therein, can coincide only with the territorial character of the -maritime belt. The argument of their opponents that, if the belt is to -be considered a part of State territory, every littoral State must have -the right to cede and exchange its coast waters, can properly be met by -the statement that territorial waters of all kinds are inalienable -appurtenances[329] of the littoral and riparian States.[330] - -[Footnote 328: Hall, p. 158. The question is treated with great -clearness by Heilborn, "System," pp. 37-57, and Schücking, pp. 14-20.] - -[Footnote 329: See above, § 175. Bynkershoek's ("De Dominio Maris," c. -5) opinion that a littoral State can alienate its maritime belt without -the coast itself, is at the present day untenable.] - -[Footnote 330: The fact that art. I. of Convention 13 (Neutral Rights -and Duties in Maritime War) of the second Hague Peace Conference, 1907, -speaks of sovereign rights ... in neutral waters would seem to indicate -that the States themselves consider their sway over the maritime belt to -be of the nature of sovereignty.] - -[Sidenote: Breadth of Maritime Belt.] - -§ 186. Be that as it may, the question arises how far into the sea those -waters extend which are coast waters and are therefore under the sway of -the littoral State. Here, too, no unanimity exists upon either the -starting line of the belt on the coast or the breadth itself of the belt -from such starting line. - -(1) Whereas the starting line is sometimes drawn along high-water mark, -many writers draw it along low-water mark. Others draw it along the -depths where the waters cease to be navigable; others again along those -depths where coast batteries can still be erected, and so on.[331] But -the number of those who draw it along low-water mark is increasing. The -Institute of International Law[332] has voted in favour of this starting -line, and many treaties stipulate the same. - -[Footnote 331: See Schücking, p. 13.] - -[Footnote 332: See Annuaire, XIII. p. 329.] - -(2) With regard to the breadth of the maritime belt various opinions -have in former times been held, and very exorbitant claims have been -advanced by different States. And although Bynkershoek's rule that -_terrae potestas finitur ubi finitur armorum vis_ is now generally -recognised by theory and practice, and consequently a belt of such -breadth is considered under the sway of the littoral State as is within -effective range of the shore batteries, there is still no unanimity on -account of the fact that such range is day by day increasing. Since at -the end of the eighteenth century the range of artillery was about three -miles, or one marine league, that distance became generally[333] -recognised as the breadth of the maritime belt. But no sooner was a -common doctrine originated than the range of projectiles increased with -the manufacture of heavier guns. And although Great Britain, France, -Austria, the United States of America, and other States, in Municipal -Laws and International Treaties still adhere to a breadth of one marine -league, the time will come when by a common agreement of the States such -breadth will be very much extended.[334] As regards Great Britain, the -Territorial Waters Jurisdiction Act[335] of 1878 (41 and 42 Vict. c. 73) -specially recognises the extent of the territorial maritime belt as -three miles, or one marine league, measured from the low-water mark of -the coast. - -[Footnote 333: But not universally. Thus Norway claims a breadth of four -miles and Spain even a breadth of six miles. As regards Norway, see -Aubert in R.G. I. (1894), pp. 429-441.] - -[Footnote 334: The Institute of International Law has voted in favour of -six miles, or two marine leagues, as the breadth of the belt. See -Annuaire, XIII. p. 281.] - -[Footnote 335: See above, § 25, and Maine, p. 39.] - -[Sidenote: Fisheries, Cabotage, Police, and Maritime Ceremonials within -the Belt.] - -§ 187. Theory and practice agree upon the following principles with -regard to fisheries, cabotage, police, and maritime ceremonials within -the maritime belt:-- - -(1) The littoral State can exclusively reserve the fishery within the -maritime belt[336] for its own subjects, whether fish or pearls or amber -or other products of the sea are in consideration. - -[Footnote 336: All treaties stipulate for the purpose of fishery a three -miles wide territorial maritime belt. See, for instance, article 1 of -the Hague Convention concerning police and fishery in the North Sea of -May 6, 1882. (Martens, N.R.G. 2nd Ser. IX. p. 556.)] - -(2) The littoral State can, in the absence of special treaties to the -contrary, exclude foreign vessels from navigation and trade along the -coast, the so-called cabotage,[337] and reserve this cabotage -exclusively for its own vessels. Cabotage meant originally navigation -and trade along the same stretch of coast between the ports thereof, -such coast belonging to the territory of one and the same State. -However, the term cabotage or coasting trade as used in commercial -treaties comprises now[338] sea trade between any two ports of the same -country, whether on the same coasts 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. - -[Footnote 337: See Pradier-Fodéré V. Nos. 2441, 2442.] - -[Footnote 338: See below, § 579, where the matter is more amply -treated.] - -(3) The littoral State can exclusively exercise police and control -within its maritime belt in the interest of its custom-house duties, the -secrecy of its coast fortifications, and the like. Thus foreign vessels -can be ordered to take certain routes and to avoid others. - -(4) The littoral State can make laws and regulations regarding maritime -ceremonials to be observed by such foreign merchantmen as enter its -territorial maritime belt.[339] - -[Footnote 339: See Twiss, I. § 194.] - -[Sidenote: Navigation within the Belt.] - -§ 188. Although the maritime belt is a portion of the territory of the -littoral State and therefore under the absolute territorial supremacy of -such State, the belt is nevertheless, according to the practice of all -the States, open to merchantmen of all nations for inoffensive -navigation, cabotage excepted. And it is the common conviction[340] that -every State has by customary International Law the _right_ to demand -that in time of peace its merchantmen may inoffensively pass through the -territorial maritime belt of every other State. Such right is correctly -said to be a consequence of the freedom of the Open Sea, for without -this right navigation on the Open Sea by vessels of all nations would in -fact be an impossibility. And it is a consequence of this right that no -State can levy tolls for the mere passage of foreign vessels through its -maritime belt. Although the littoral State may spend a considerable -amount of money for the erection and maintenance of lighthouses and -other facilities for safe navigation within its maritime belt, it cannot -make merely passing foreign vessels pay for such outlays. It is only -when foreign ships cast anchor within the belt or enter a port that they -can be made to pay dues and tolls by the littoral State. Some -writers[341] maintain that all nations have the right of inoffensive -passage for their merchantmen by usage only, and not by the customary -Law of Nations, and that, consequently, in strict law a littoral State -can prevent such passage. They are certainly mistaken. An attempt on the -part of a littoral State to prevent free navigation through the maritime -belt in time of peace would meet with stern opposition on the part of -all other States. - -[Footnote 340: See above, § 142.] - -[Footnote 341: Klüber, § 76; Pradier-Fodéré, II. No. 628.] - -But a right of foreign States for their men-of-war to pass unhindered -through the maritime belt is not generally recognised. Although many -writers assert the existence of such a right, many others emphatically -deny it. As a rule, however, in practice no State actually opposes in -time of peace the passage of foreign men-of-war and other public vessels -through its maritime belt. And it may safely be stated, first, that a -usage has grown up by which such passage, if in every way inoffensive -and without danger, shall not be denied in time of peace; and, secondly, -that it is now a customary rule of International Law that the right of -passage through such parts of the maritime belt as form part of the -highways for international traffic cannot be denied to foreign -men-of-war.[342] - -[Footnote 342: See below, § 449.] - -[Sidenote: Jurisdiction within the Belt.] - -§ 189. That the littoral State has exclusive jurisdiction within the -belt as regards mere matters of police and control is universally -recognised. Thus it can exclude foreign pilots, can make custom-house -arrangements, sanitary regulations, laws concerning stranded vessels and -goods, and the like. It is further agreed that foreign merchantmen -casting anchor within the belt or entering a port,[343] fall at once and -_ipso facto_ under the jurisdiction of the littoral State. But it is a -moot point whether such foreign vessels as do not stay but merely pass -through the belt are for the time being under this jurisdiction. It is -for this reason that the British Territorial Waters Jurisdiction Act of -1878 (41 & 42 Vict. c. 73), which claims such jurisdiction, has called -forth protests from many writers.[344] The controversy itself can be -decided only by the practice of the States. The British Act quoted, the -basis of which is, in my opinion, sound and reasonable, is a powerful -factor in initiating such a practice; but as yet no common practice of -the States can be said to exist. - -[Footnote 343: The Institute of International Law--see Annuaire, XVII. -(1898), p. 273--adopted at its meeting at the Hague in 1898 a -"_Règlement_ sur le régime légal des navires et de leurs équipages dans -les ports étrangers" comprising seven rules.] - -[Footnote 344: See Perels, pp. 69-77. The Institute of International -Law, which at its meeting at Paris in 1894 adopted a body of eleven -rules regarding the maritime belt, gulfs, bays, and straits, voted -against the jurisdiction of a littoral State over foreign vessels merely -passing through the belt. See Annuaire, XIII. p. 328.] - -[Sidenote: Zone for Revenue and Sanitary Laws.] - -§ 190. Different from the territorial maritime belt is the zone of the -Open Sea, over which a littoral State extends the operation of its -revenue and sanitary laws. The fact is that Great Britain and the United -States, as well as other States, possess revenue and sanitary laws which -impose certain duties not only on their own but also on such foreign -vessels bound to one of their ports as are approaching, but not yet -within, their territorial maritime belt.[345] Twiss and Phillimore agree -that in strict law these Municipal Laws have no basis, since every State -is by the Law of Nations prevented from extending its jurisdiction over -the Open Sea, and that it is only the Comity of Nations which admits -tacitly the operation of such Municipal Laws as long as foreign States -do not object, and provided that no measure is taken within the -territorial maritime belt of another nation. I doubt not that in time -special arrangements will be made as regards this point by a universal -international convention. But I believe that, since Municipal Laws of -the above kind have been in existence for more than a hundred years and -have not been opposed by other States, a customary rule of the Law of -Nations may be said to exist which allows littoral States in the -interest of their revenue and sanitary laws to impose certain duties on -such foreign vessels bound to their ports as are approaching, although -not yet within, their territorial maritime belt. - -[Footnote 345: See, for instance, the British so-called _Hovering Acts_, -9 Geo. II. c. 35 and 24 Geo. III. c. 47. The matter is treated by Moore, -I. § 151; Taylor, § 248; Twiss, I. § 190; Phillimore, I. § 198; Halleck, -I. p. 157; Stoerk in Holtzendorff, II. pp. 475-478; Perels, § 5, pp. -25-28. See also Hall, "Foreign Powers and Jurisdiction," §§ 108 and 109, -and Annuaire, XIII. (1894), pp. 135 and 141.] - - -VII - -GULFS AND BAYS - - Vattel, I. § 291--Hall, § 41--Westlake, I. pp. 183-192--Lawrence, - § 72--Phillimore, I. §§ 196-206--Twiss, I. §§ 181-182--Halleck, I. - pp. 165-170--Taylor, §§ 229-231--Walker, § 18--Wharton, I. §§ - 27-28--Moore, I. § 153--Wheaton, §§ 181-190--Bluntschli, §§ - 309-310--Hartmann, § 58--Heffter, § 76--Stoerk in Holtzendorff, - II. pp. 419-428--Gareis, § 21--Liszt, § 9--Ullmann, § 88--Bonfils, - No. 516--Despagnet, Nos. 405-406--Mérignhac, II. pp. - 394-397--Pradier-Fodéré, II. Nos. 661-681--Nys, I. pp. - 441-447--Rivier, I. pp. 153-157--Calvo, I. §§ 366-367--Fiore, II. - Nos. 808-815, and Code, Nos. 278-279--Martens, I. § 100--Perels, § - 5--Schücking, "Das Küstenmeer im internationalen Recht" (1897), - pp. 20-24--Barclay in Annuaire, XII. pp. 127-129--Oppenheim in - Z.V. I. (1907), pp. 579-587, and V. (1911), pp. 74-95. - -[Sidenote: Territorial Gulfs and Bays.] - -§ 191. It is generally admitted that such gulfs and bays as are enclosed -by the land of one and the same littoral State, and whose entrance from -the sea is narrow enough to be commanded by coast batteries erected on -one or both sides of the entrance, belong to the territory of the -littoral State even if the entrance is wider[346] than two marine -leagues, or six miles. - -[Footnote 346: I have no reason to alter the above statement, although -Lord Fitzmaurice declared in the House of Lords on February 21, 1907, in -the name of the British Government, that they considered such bays only -to be territorial as possessed an entrance _not_ wider than six miles. -The future will have to show whether Great Britain and her -self-governing colonies consider themselves bound by this statement. No -writer of authority can be quoted in favour of it, although Walker (§ -18) and Wilson and Tucker (5th ed., 1910, § 53) state it. Westlake (vol. -I. p. 187) cannot be cited in favour of it, since he distinguishes -between bays and gulfs in such a way as is not generally done by -international lawyers, and as is certainly not recognised by geography; -for the very examples which he enumerates as _gulfs_ are all called -_bays_, namely those of Conception, of Cancale, of Chesapeake, and of -Delaware. In the North Atlantic Coast Fisheries case, between the United -States and Great Britain, which was decided by the Permanent Court of -Arbitration at the Hague in 1910, the United States--see the official -publication of the case, p. 136--also contended that only such bays -could be considered territorial as possessed an entrance not wider than -six miles, but the Court refused to agree to this contention.] - -Some writers maintain that gulfs and bays whose entrance is wider than -ten miles, or three and a third marine leagues, cannot belong to the -territory of the littoral State, and the practice of some States accords -with this opinion. But the practice of other countries, approved by -many writers, goes beyond this limit. Thus Great Britain holds the Bay -of Conception in Newfoundland to be territorial, although it goes forty -miles into the land and has an entrance more than twenty miles wide. And -the United States claim the Chesapeake and Delaware Bays, as well as -other inlets of the same character, as territorial,[347] although many -European writers oppose this claim. The Institute of International Law -has voted in favour of a twelve miles wide entrance, but admits the -territorial character of such gulfs and bays with a wider entrance as -have been considered territorial for more than one hundred years.[348] - -[Footnote 347: See Taylor, § 229; Wharton, I. §§ 27 and 28; Moore, I. § -153.] - -[Footnote 348: See Annuaire, XIII. p. 329.] - -As the matter stands, it is doubtful as regards many gulfs and bays -whether they are territorial or not. Examples of territorial bays in -Europe are: The Zuider Zee is Dutch; the Frische Haff, the Kurische -Haff, and the Bay of Stettin, in the Baltic, are German, as is also the -Jade Bay in the North Sea. The whole matter calls for an international -congress to settle the question once for all which gulfs and bays are to -be considered territorial. And it must be specially observed that it is -hardly possible that Great Britain would still, as she formerly did for -centuries, claim the territorial character of the so-called King's -Chambers,[349] which include portions of the sea between lines drawn -from headland to headland. - -[Footnote 349: Whereas Hall (§ 41, p. 162) says: "England would, no -doubt, not attempt any longer to assert a right of property over the -King's Chambers," Phillimore (I. § 200) still keeps up this claim. The -attitude of the British Government in the Moray Firth Case--see below, -p. 264--would seem to demonstrate that this claim is no longer upheld. -See also Lawrence, § 87, and Westlake, I. p. 188.] - -[Sidenote: Non-territorial Gulfs and Bays.] - -§ 192. Gulfs and bays surrounded by the land of one and the same -littoral State whose entrance is so wide that it cannot be commanded by -coast batteries, and, further, all gulfs and bays enclosed by the land -of more than one littoral State, however narrow their entrance may be, -are non-territorial. They are parts of the Open Sea, the marginal belt -inside the gulfs and bays excepted. They can never be appropriated, they -are in time of peace and war open to vessels of all nations including -men-of-war, and foreign fishing vessels cannot, therefore, be compelled -to comply with municipal regulations of the littoral State concerning -the mode of fishing. - -An illustrative case is that of the fisheries in the Moray Firth. By -article 6 of the Herring[350] Fishery (Scotland) Act, 1889, beam and -otter trawling is prohibited within certain limits of the Scotch coast, -and the Moray Firth inside a line drawn from Duncansby Head in Caithness -to Rattray Point in Aberdeenshire is included in the prohibited area. In -1905, Mortensen, the captain of a Norwegian fishing vessel, but a Danish -subject, was prosecuted for an offence against the above-mentioned -article 6, convicted, and fined by the Sheriff Court at Dornoch, -although he contended that the incriminating act was committed outside -three miles from the coast. He appealed to the High Court of Justiciary, -which,[351] however, confirmed the verdict of the Sheriff Court, -correctly asserting that, whether or not the Moray Firth could be -considered as a British territorial bay, the Court was bound by a -British Act of Parliament even if such Act violates a rule of -International Law. The British Government, while recognising that the -Scotch Courts were bound by the Act of Parliament concerned, likewise -recognised that, the Moray Firth not being a British territorial bay, -foreign fishing vessels could not be compelled to comply with an Act of -Parliament regulating the mode of fishing in the Moray Firth outside -three miles from the coast, and therefore remitted Mortensen's fine. To -remedy the conflict between article 6 of the above-mentioned Herring -Fishery (Scotland) Act, 1889, and the requirements of International Law, -Parliament passed the Trawling in Prohibited Areas Prevention Act,[352] -1909, according to which no prosecution can take place for the exercise -of prohibited fishing methods outside the three miles from the coast, -but the fish so caught may not be landed or sold in the United -Kingdom.[353] - -[Footnote 350: 52 and 53 Vict. c. 23.] - -[Footnote 351: Mortensen _v._ Peters, "The Scotch Law Times Reports," -vol. 14, p. 227.] - -[Footnote 352: 9 Edw. VII. c. 8.] - -[Footnote 353: See Oppenheim in Z.V. V. (1911), pp. 74-95.] - -[Sidenote: Navigation and Fishery in Territorial Gulfs and Bays.] - -§ 193. As regards navigation and fishery within territorial gulfs and -bays, the same rules of the Law of Nations are valid as in the case of -navigation and fishery within the territorial maritime belt. The right -of fishery may, therefore, exclusively be reserved for subjects of the -littoral State.[354] And navigation, cabotage excepted, must be open to -merchantmen of all nations, but foreign men-of-war need not be admitted. - -[Footnote 354: The Hague Convention concerning police and fishery in the -North Sea, concluded on May 6, 1882, between Great Britain, Belgium, -Denmark, France, Germany, and Holland reserves by its article 2 the -fishery for subjects of the littoral States of such bays as have an -entrance from the sea not wider than ten miles, but reserves likewise a -maritime belt of three miles to be measured from the line where the -entrance is ten miles wide. Practically the fishery is therefore -reserved for subjects of the littoral State within bays with an entrance -thirteen miles wide. See Martens, N.R.G. 2nd Ser. IX. (1884), p. 556.] - - -VIII - -STRAITS - - Vattel, I. § 292--Hall, § 41--Westlake, I. pp. 193-197--Lawrence, - §§ 87-89--Phillimore, I. §§ 180-196--Twiss, I. §§ 183, 184, - 189--Halleck, I. pp. 165-170--Taylor, §§ 229-231--Walker, § - 17--Wharton, §§ 27-29--Wheaton, §§ 181-190--Moore, I. §§ - 133-134--Bluntschli, § 303--Hartmann, § 65--Heffter, § 76--Stoerk - in Holtzendorff, II. pp. 419-428--Gareis, § 21--Liszt, §§ 9 and - 26--Ullmann, § 88--Bonfils, Nos. 506-511--Despagnet, Nos. - 415-417--Pradier-Fodéré, II. Nos. 650-656--Nys, I. pp. - 451-474--Rivier, I. pp. 157-159--Calvo, I. §§ 368-372--Fiore, II. - Nos. 745-754, and Code, Nos. 280-281--Martens, I. § 101--Holland, - Studies, p. 277. - -[Sidenote: What Straits are Territorial.] - -§ 194. All straits which are so narrow as to be under the command of -coast batteries erected either on one or both sides of the straits, are -territorial. Therefore, straits of this kind which divide the land of -one and the same State belong to the territory of such State. Thus the -Solent, which divides the Isle of Wight from England, is British, the -Dardanelles and the Bosphorus are Turkish, and both the Kara and the -Yugor Straits, which connect the Kara Sea with the Barents Sea, are -Russian. On the other hand, if such narrow strait divides the land of -two different States, it belongs to the territory of both, the boundary -line running, failing a special treaty making another arrangement, -through the mid-channel.[355] Thus the Lymoon Pass, the narrow strait -which separates the British island of Hong Kong from the continent, was -half British and half Chinese as long as the land opposite Hong Kong was -Chinese territory. - -[Footnote 355: See below, § 199.] - -It would seem that claims of States over wider straits than those which -can be commanded by guns from coast batteries are no longer upheld. Thus -Great Britain used formerly to claim the Narrow Seas--namely, the St. -George's Channel, the Bristol Channel, the Irish Sea, and the North -Channel--as territorial; and Phillimore asserts that the exclusive right -of Great Britain over these Narrow Seas is uncontested. But it must be -emphasised that this right _is_ contested, and I believe that Great -Britain would now no longer uphold her former claim,[356] at least the -Territorial Waters Jurisdiction Act 1878 does not mention it. - -[Footnote 356: See Phillimore, I. § 189, and above, § 191 (King's -Chambers). Concerning the Bristol Channel, Hall (§ 41, p. 162, note 2) -remarks: "It was apparently decided by the Queen's Bench in Reg. _v._ -Cunningham (Bell's "Crown Cases," 86) that the whole of the Bristol -Channel between Somerset and Glamorgan is British territory; possibly, -however, the Court intended to refer only to that portion of the Channel -which lies within Steepholm and Flatholm." See also Westlake, I. p. 188, -note 3.] - -[Sidenote: Navigation, Fishery, and Jurisdiction in Straits.] - -§ 195. All rules of the Law of Nations concerning navigation, fishery, -and jurisdiction within the maritime belt apply likewise to navigation, -fishery, and jurisdiction within straits. Foreign merchantmen, -therefore, cannot[357] be excluded; foreign men-of-war must be admitted -to such straits as form part of the highways for international -traffic;[358] the right of fishery may exclusively be reserved for -subjects of the littoral State; and the latter can exercise jurisdiction -over all foreign merchantmen passing through the straits. If the narrow -strait divides the land of two different States, jurisdiction and -fishery are reserved for each littoral State within the boundary line -running through the mid-channel or otherwise as by treaty arranged. - -[Footnote 357: The claim of Russia--see Waultrin in R.G. XV. (1908), p. -410--to have a right to exclude foreign merchantmen from the passage -through the Kara and the Yugor Straits, is therefore unfounded. As -regards the Kara Sea, see below, § 253, note 2.] - -[Footnote 358: As, for instance, the Straits of Magellan. These straits -were neutralised in 1881--see below, § 568, and vol. II. § 72--by a -treaty between Chili and Argentina. See Abribat, "Le détroit de Magellan -au point de vue international" (1902); Nys, I. pp. 470-474; and Moore, -I. § 134.] - -It must, however, be stated that foreign merchantmen cannot be excluded -from the passage through territorial straits only when these connect two -parts of the Open Sea. In case a territorial strait belonging to one and -the same State connects a part of the Open Sea with a territorial gulf -or bay, or with a territorial land-locked sea belonging to the same -State--as, for instance, the Strait of Kertch[359] at present, and -formerly the Bosphorus and the Dardanelles[360]--foreign vessels can be -excluded therefrom. - -[Footnote 359: See below, § 252.] - -[Footnote 360: See below, § 197.] - -[Sidenote: The former Sound Dues.] - -§ 196. The rule that foreign merchantmen must be allowed inoffensive -passage through territorial straits without any dues and tolls whatever, -had one exception until the year 1857. From time immemorial, Denmark had -not allowed foreign vessels the passage through the two Belts and the -Sound, a narrow strait which divides Denmark from Sweden and connects -the Kattegat with the Baltic, without payment of a toll, the so-called -Sound Dues.[361] Whereas in former centuries these dues were not -opposed, they were not considered any longer admissible as soon as the -principle of free navigation on the sea became generally recognised, but -Denmark nevertheless insisted upon the dues. In 1857, however, an -arrangement[362] was completed between the maritime Powers of Europe and -Denmark by which the Sound Dues were abolished against a heavy indemnity -paid by the signatory States to Denmark. And in the same year the United -States entered into a convention[363] with Denmark for the free passage -of their vessels, and likewise paid an indemnity. With these dues has -disappeared the last witness of former times when free navigation on the -sea was not universally recognised. - -[Footnote 361: See the details, which have historical interest only, in -Twiss, I. § 188; Phillimore, I. § 189; Wharton, I. § 29; and Scherer, -"Der Sundzoll" (1845).] - -[Footnote 362: The Treaty of Copenhagen of March 14, 1857. See Martens, -N.R.G. XVI. 2nd part, p. 345.] - -[Footnote 363: Convention of Washington of April 11, 1857. See Martens, -N.R.G. XVII. 1st part, p. 210.] - -[Sidenote: The Bosphorus and Dardanelles.] - -§ 197. The Bosphorus and Dardanelles, the two Turkish territorial -straits which connect the Black Sea with the Mediterranean, must be -specially mentioned.[364] So long as the Black Sea was entirely enclosed -by Turkish territory and was therefore a portion of this territory, -Turkey could exclude[365] foreign vessels from the Bosphorus and the -Dardanelles altogether, unless prevented by special treaties. But when -in the eighteenth century Russia became a littoral State of the Black -Sea, and the latter, therefore, ceased to be entirely a territorial sea, -Turkey, by several treaties with foreign Powers, conceded free -navigation through the Bosphorus and the Dardanelles to foreign -merchantmen. But she always upheld the rule that foreign men-of-war -should be excluded from these straits. And by article 1 of the -Convention of London of July 10, 1841, between Turkey, Great Britain, -Austria, France, Prussia, and Russia, this rule was once for all -accepted. Article 10 of the Peace Treaty of Paris of 1856 and the -Convention No. 1 annexed to this treaty, and, further, article 2 of the -Treaty of London, 1871, again confirm the rule, and all those Powers -which were not parties to these treaties submit nevertheless to it.[366] -According to the Treaty of London of 1871, however, the Porte can open -the straits in time of peace to the men-of-war of friendly and allied -Powers for the purpose, if necessary, of securing the execution of the -stipulations of the Peace Treaty of Paris of 1856. - -[Footnote 364: See Holland, "The European Concert in the Eastern -Question," p. 225, and Perels, p. 29.] - -[Footnote 365: See above, § 195.] - -[Footnote 366: The United States, although she actually acquiesces in -the exclusion of her men-of-war, seems not to consider herself bound by -the Convention of London, to which she is not a party. See Wharton, I. § -29, pp. 79 and 80, and Moore, I. § 134, pp. 666-668.] - -On the whole, the rule has in practice always been upheld by Turkey. -Foreign light public vessels in the service of foreign diplomatic envoys -at Constantinople can be admitted by the provisions of the Peace Treaty -of Paris of 1856. And on several occasions when Turkey has admitted a -foreign man-of-war carrying a foreign monarch on a visit to -Constantinople, there has been no opposition by the Powers.[367] But -when, in 1902, Turkey allowed four Russian torpedo destroyers to pass -through her straits on the condition that these vessels should be -disarmed and sail under the Russian commercial flag, Great Britain -protested and declared that she reserved the right to demand similar -privileges for her men-of-war should occasion arise. As far as I know, -however, no other Power has joined Great Britain in this protest. On the -other hand, no protest was raised when, in 1904, during the -Russo-Japanese war, two vessels belonging to the Russian volunteer fleet -in the Black Sea were allowed to pass through to the Mediterranean, for -nobody could presume that these vessels, which were flying the Russian -commercial flag, would later on convert themselves into men-of-war by -hoisting the Russian war flag.[368] - -[Footnote 367: See Perels, p. 30.] - -[Footnote 368: See below, vol. II. § 84.] - - -IX - -BOUNDARIES OF STATE TERRITORY - - Grotius, II. c. 3, § 18--Vattel, I. § 266--Hall, § 38--Westlake, - I. pp. 141-142--Twiss, I. §§ 147-148--Taylor, § 251--Moore, I. §§ - 154-162--Bluntschli, §§ 296-302--Hartmann, § 59--Heffter, § - 66--Holtzendorff in Holtzendorff, II. pp. 232-239--Gareis, § - 19--Liszt, § 9--Ullmann, § 91--Bonfils, Nos. 486-489--Despagnet, - No. 377--Pradier-Fodéré, II. Nos. 759-777--Mérignhac, II. p. - 358--Nys, I. pp. 413-422--Rivier, I. § 11--Calvo, I. §§ - 343-352--Fiore, II. Nos. 799-806, and Code, Nos. - 1040-1049--Martens, I. § 89--Lord Curzon of Kedleston, "Frontiers" - (Romanes lecture of 1907). - -[Sidenote: Natural and Artificial Boundaries.] - -§ 198. Boundaries of State territory are the imaginary lines on the -surface of the earth which separate the territory of one State from that -of another, or from unappropriated territory, or from the Open Sea. The -course of the boundary lines may or may not be indicated by boundary -signs. These signs may be natural or artificial, and one speaks, -therefore, of natural in contradistinction to artificial boundaries. -_Natural_ boundaries may consist of water, a range of rocks or -mountains, deserts, forests, and the like. _Artificial_ boundaries are -such signs as have been purposely put up to indicate the way of the -imaginary boundary-line. They may consist of posts, stones, bars, -walls,[369] trenches, roads, canals, buoys in water, and the like. It -must, however, be borne in mind that the distinction between artificial -and natural boundaries is not sharp, in so far as some natural -boundaries can be artificially created. Thus a forest may be planted, -and a desert may be created, as was the frequent practice of the Romans -of antiquity, for the purpose of marking the frontier. - -[Footnote 369: The Romans of antiquity very often constructed boundary -walls, and the Chinese Wall may also be cited as an example.] - -[Sidenote: Boundary Waters.] - -§ 199. Natural boundaries consisting of water must be specially -discussed on account of the different kinds of boundary waters. Such -kinds are rivers, lakes, landlocked seas, and the maritime belt. - -(1) Boundary rivers[370] are such rivers as separate two different -States from each other.[371] If such river is not navigable, the -imaginary boundary line runs down the middle of the river, following all -turnings of the border line of both banks of the river. On the other -hand, in a navigable river the boundary line runs through the middle of -the so-called _Thalweg_, that is, the mid-channel of the river. It is, -thirdly, possible that the boundary line is the _border line_ of the -river, so that the whole bed belongs to one of the riparian States -only.[372] But this is an exception created by treaty or by the fact -that a State has occupied the lands on one side of a river at a time -prior to the occupation of the lands on the other side by some other -State.[373] And it must be remembered that, since a river sometimes -changes its course more or less, the boundary line running through the -middle or the _Thalweg_ or along the border line is thereby also -altered. In case a bridge is built over a boundary river, the boundary -line runs, failing special treaty arrangements, through the middle of -the bridge. As regards the boundary lines running through islands rising -in boundary rivers and through the abandoned beds of such rivers, see -below, §§ 234 and 235. - -[Footnote 370: See Huber in Z.V. I. (1906), pp. 29-52 and 159-217.] - -[Footnote 371: This case is not to be confounded with the other, in -which a river runs through the lands of two different States. In this -latter case the boundary line runs across the river.] - -[Footnote 372: See above, § 175.] - -[Footnote 373: See Twiss, I. §§ 147 and 148, and Westlake, I. p. 142.] - -(2) Boundary lakes and land-locked seas are such as separate the lands -of two or more different States from each other. The boundary line runs -through the middle of these lakes and seas, but as a rule special -treaties portion off such lakes and seas between riparian States.[374] - -[Footnote 374: See above, § 179.] - -(3) The boundary line of the maritime belt is, according to details -given above (§ 186), uncertain, since no unanimity prevails with regard -to the width of the belt. It is, however, certain that the boundary line -runs not nearer to the shore than three miles, or one marine league, -from the low-water mark. - -(4) In a narrow strait separating the lands of two different States the -boundary line runs either through the middle or through the -mid-channel,[375] unless special treaties make different arrangements. - -[Footnote 375: See Twiss, I. §§ 183 and 184, and above, § 194.] - -[Sidenote: Boundary Mountains.] - -§ 200. Boundary mountains or hills are such natural elevations from the -common level of the ground as separate the territories of two or more -States from each other. Failing special treaty arrangements, the -boundary line runs on the mountain ridge along with the watershed. But -it is quite possible that boundary mountains belong wholly to one of the -States which they separate.[376] - -[Footnote 376: See Fiore, II. No. 800.] - -[Sidenote: Boundary Disputes.] - -§ 201. Boundary lines are, for many reasons, of such vital importance -that disputes relating thereto are inevitably very frequent and have -often led to war. During the nineteenth century, however, a tendency -began to prevail to settle such disputes peaceably. The simplest way in -which this can be done is always by a boundary treaty, provided the -parties can come to terms.[377] In other cases arbitration can settle -the matter, as, for instance, in the Alaska Boundary dispute between -Great Britain (representing Canada) and the United States, settled in -1903. Sometimes International Commissions are specially appointed to -settle the boundary lines. In this way the boundary lines between -Turkey, Bulgaria, Servia, Montenegro, and Roumania were settled after -the Berlin Congress of 1878. It sometimes happens that the States -concerned, instead of settling the boundary line, keep a strip of land -between their territories under their joint tenure and administration, -so that a so-called _condominium_ comes into existence, as in the case -of Moresnet (Kelmis) on the Prusso-Belgian frontier.[378] - -[Footnote 377: A good example of such a boundary treaty is that between -Great Britain and the United States of America respecting the -demarcation of the international boundary between the United States and -the Dominion of Canada, signed at Washington on April 11, 1908. See -Martens, N.R.G. 3rd Ser. IV. (1911), p. 191.] - -[Footnote 378: See above, § 171, No. 1.] - -[Sidenote: Natural Boundaries _sensu politico_.] - -§ 202. Whereas the term "natural boundaries" in the theory and practice -of the Law of Nations means natural signs which indicate the course of -boundary lines, the same term is used politically[379] in various -different meanings. Thus the French often speak of the river Rhine as -their "natural" boundary, as the Italians do of the Alps. Thus, further, -the zones within which the language of a nation is spoken are frequently -termed that nation's "natural" boundary. Again, the line enclosing such -parts of the land as afford great facilities for defence against an -attack is often called the "natural" boundary of a State, whether or not -these parts belong to the territory of the respective State. It is -obvious that all these and other meanings of the term "natural -boundaries" are of no importance to the Law of Nations, whatever value -they may have politically. - -[Footnote 379: See Rivier, I. p. 166.] - - -X - -STATE SERVITUDES - - Vattel, I. § 89--Hall, § 42*--Westlake, I. p. 61--Phillimore, I. - §§ 281-283--Twiss, I. § 245--Taylor, § 252--Moore, I. §§ 163-168, - II. § 177--Bluntschli, §§ 353-359--Hartmann, § 62--Heffter, § - 43--Holtzendorff in Holtzendorff, II. pp. 242-252--Gareis, § - 71--Liszt, §§ 8 and 19--Ullmann, § 99--Bonfils, Nos. - 340-344--Despagnet, Nos. 190-192--Mérignhac, II. pp. - 366-368--Pradier-Fodéré, II. Nos. 834-845, 1038--Rivier, I. pp. - 296-303--Nys, II. pp. 271-279--Calvo, III. § 1583--Fiore, I. § - 380, and Code, Nos. 1095-1097--Martens, I. §§ 94-95--Clauss, "Die - Lehre von den Staatsdienstbarkeiten" (1894)--Fabres, "Des - servitudes dans le droit international" (1901)--Hollatz, "Begriff - und Wesen der Staatsservituten" (1909)--Labrousse, "Des servitudes - en droit international public" (1911)--Nys in R.I. 2nd Ser. VII. - (1905), pp. 118-125, and XIII. (1911), pp. 312-323. - -[Sidenote: Conception of State Servitudes.] - -§ 203. State servitudes are those exceptional and conventional -restrictions on the territorial supremacy of a State by which a part or -the whole of its territory is in a limited way made perpetually to -serve a certain purpose or interest of another State. Thus a State may -by a convention be obliged to allow the passage of troops of a -neighbouring State, or may in the interest of a neighbouring State be -prevented from fortifying a certain town near the frontier. - -Servitudes must not be confounded[380] with those general restrictions -upon territorial supremacy which, according to certain rules of the Law -of Nations, concern all States alike. These restrictions are named -"natural" restrictions of territorial supremacy (_servitutes juris -gentium naturales_), in contradistinction to the conventional -restrictions (_servitutes juris gentium voluntariae_) which constitute -the State servitudes in the technical sense of the term. Thus, for -instance, it is not a State servitude, but a "natural" restriction on -territorial supremacy, that a State is obliged to admit the free passage -of foreign merchantmen through its territorial maritime belt. - -[Footnote 380: This is done, for instance, by Heffter (§ 43), Martens (§ -94), Nys (II. p. 271), and Hall (§ 42*); the latter speaks of the right -of innocent use of territorial seas as a servitude.] - -That State servitudes are or may on occasions be of great importance, -there can be no doubt whatever. The vast majority[381] of writers and -the practice of the States accept, therefore, the conception of State -servitudes, although they do not agree with regard to the definition and -the width of the conception, and although, consequently, in many cases -the question is disputed whether a certain restriction upon territorial -supremacy is or is not a State servitude. - -[Footnote 381: The conception of State servitudes is rejected by -Bulmerincq (§ 49), Gareis (§ 71), Liszt (§§ 8 and 19), Jellinek -("Allgemeine Staatslehre," p. 366).] - -The theory of State servitudes has of late been rejected by the -Permanent Court of Arbitration at the Hague in the case[382] (1910) of -the North Atlantic Coast Fisheries between Great Britain and the United -States, chiefly for the three reasons that a servitude in International -Law predicated an express grant of a sovereign right, that the doctrine -of international servitude originated in the peculiar and now obsolete -conditions prevailing in the Holy Roman Empire, and that this doctrine, -being little suited to the principle of sovereignty which prevails in -States under a constitutional government and to the present -international relations of Sovereign States, had found little, if any, -support from modern publicists. It is hardly to be expected that this -opinion of the Court will induce theory and practice to drop the -conception of State servitudes, which is of great value because it fitly -covers those restrictions on the territorial supremacy of the State by -which a part or the whole of its territory is in a limited way made -perpetually to serve a certain purpose or interest of another State. -That the doctrine of State servitudes originated in the peculiar -conditions of the Holy Roman Empire does not make it unfit for the -conditions of modern life if its practical value can be demonstrated. -Further, the assertion that the doctrine is but little suited to the -principle of sovereignty which prevails in States under a constitutional -government, and has, therefore, found little, if any, support from -modern publicists, does not agree with the facts. Lastly, the statement -that a servitude in International Law predicated an express grant of a -sovereign right, is not based on any other authority than the contention -of the United States, which made this unfounded statement in presenting -their case before the Tribunal. The fact is that a State servitude, -although to a certain degree it restricts the sovereignty (territorial -supremacy) of the State concerned, does as little as any other -restriction upon the sovereignty of a State confer a sovereign right -upon the State in favour of which it is established. - -[Footnote 382: See the official publication of the case, pp. 115-116; -Hogg in _The Law Quarterly Review_, XXVI. (1910), pp. 415-417; Richards -in _The Journal of the Society of Comparative Legislation_, New Series, -XI. (1910), pp. 18-27; Lansing in A.J. V. (1911), pp. 1-31; Balch and -Louter in R.I. 2nd Ser. XIII. (1911), pp. 5-23, 131-157.] - -[Sidenote: Subjects of State Servitudes.] - -§ 204. Subjects of State servitudes are States only and exclusively, -since State servitudes can exist between States only (_territorium -dominans_ and _territorium serviens_). Formerly some writers[383] -maintained that private individuals and corporations were able to -acquire a State servitude; but nowadays it is agreed that this is not -possible, since the Law of Nations is a law between States only and -exclusively. Whatever rights may be granted by a State to foreign -individuals and corporations, such rights can never constitute State -servitudes. - -[Footnote 383: Bluntschli, § 353; Heffter, § 44.] - -On the other hand, every State can acquire and grant State servitudes, -although some States may, in consequence of their particular position -within the Family of Nations, be prevented from acquiring or granting -some special kind or another of State servitudes. Thus neutralised -States are in many points hampered in regard to acquiring and granting -State servitudes, because they have to avoid everything that could drag -them indirectly into war. Thus, further, half-Sovereign and -part-Sovereign States may not be able to acquire and to grant certain -State servitudes on account of their dependence upon their superior -State. But apart from such exceptional cases, even not-full Sovereign -States can acquire and grant State servitudes, provided they have any -international status at all. - -[Sidenote: Object of State Servitudes.] - -§ 205. The object of State servitudes is always the whole or a part of -the territory of the State the territorial supremacy of which is -restricted by any such servitude.[384] Since the territory of a State -includes not only the land but also the rivers which water the land, the -maritime belt, the territorial subsoil, and the territorial atmosphere, -all these can, as well as the service of the land itself, be an object -of State servitudes. Thus a State may have a perpetual right of -admittance for its subjects to the fishery in the maritime belt of -another State, or a right to lay telegraph cables through a foreign -maritime belt, or a right to make and use a tunnel through a boundary -mountain, and the like. And should ever aërostation become so developed -as to be of practical utility, a State servitude might be created -through a State acquiring a perpetual right to send military aerial -vehicles through the territorial atmosphere of a neighbouring State. It -must, however, be emphasised that the Open Sea can never be the object -of a State servitude, since it is no State's territory. - -[Footnote 384: The contention of the United States, adopted by the Hague -Arbitration Tribunal, in 1910, in the case of the North Atlantic Coast -Fisheries, that a State servitude conferred a sovereign right upon the -State in favour of which it is established, was refuted above in § 203, -p. 275.] - -Since the object of State servitudes is the territory of a State, all -such restrictions upon the territorial supremacy of a State as do not -make a part or the whole of its territory itself serve a purpose or an -interest of another State are not State servitudes. The territory as the -object is the mark of distinction between State servitudes and other -restrictions on the territorial supremacy. Thus the perpetual -restriction imposed upon a State by a treaty not to keep an army beyond -a certain size is certainly a restriction on territorial supremacy, but -is not, as some writers[385] maintain, a State servitude, because it -does not make the territory of one State serve an interest of another. -On the other hand, when a State submits to a perpetual right enjoyed by -another State of passage of troops, or to the duty not to fortify a -certain town, place, or island,[386] or to the claim of another State -for its subjects to be allowed the fishery within the former's -territorial belt;[387] in all these and the like[388] cases the -territorial supremacy of a State _is_ in such a way restricted that a -part or the whole of its territory is made to serve the interest of -another State, and such restrictions are therefore State -servitudes.[389] - -[Footnote 385: See, for instance, Bluntschli, § 356.] - -[Footnote 386: Thus by article 32 of the peace treaty of Paris, 1856, -and by the Convention of March 30, 1856, between Great Britain, France, -and Russia, annexed to the peace treaty of Paris--see Martens, N.R.G. -XV. pp. 780 and 788--Russia is prevented from fortifying the Aland -Islands in the Baltic. See below, § 522, and Waultrin in R.G. XIV. pp. -517-533. See also A.J. II. (1908), p. 397.] - -[Footnote 387: Examples of such fishery servitudes are:-- - -(_a_) The former French fishery rights in Newfoundland which were based -on article 13 of the Treaty of Utrecht, 1713, and on the Treaty of -Versailles, 1783. See the details regarding the Newfoundland Fishery -Dispute, in Phillimore, I. § 195; Clauss, pp. 17-31; Geffcken in R.I. -XXII. p. 217; Brodhurst in _Law Magazine and Review_, XXIV. p. 67. The -French literature on the question is quoted in Bonfils, No. 342, note 1. -The dispute is now settled by France's renunciation of the privileges -due to her according to article 13 of the Treaty of Utrecht, which took -place by article 1 of the Anglo-French Convention signed in London on -April 8, 1904 (see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 29). But -France retains, according to article 2 of the latter Convention, the -right of fishing for her subjects in certain parts of the territorial -waters of Newfoundland. - -(_b_) The fishery rights granted by Great Britain to the United States -of America in certain parts of the British North Atlantic Coast by -article 1 of the Treaty of 1818 which gave rise to disputes extending -over a long period. The dispute is now settled by an award of the Hague -Permanent Court of Arbitration given in September (1910). That the Court -refused to recognise the conception of State servitudes, was pointed out -above, § 203. See above, § 203, and the literature there quoted.] - -[Footnote 388: Phillimore (I. § 283) quotes two interesting State -servitudes which belong to the past. According to articles 4 and 10 of -the Treaty of Utrecht, 1713, France was, in the interest of Great -Britain, not to allow the Stuart Pretender to reside on French -territory, and Great Britain was, in the interest of Spain, not to allow -Moors and Jews to reside in Gibraltar.] - -[Footnote 389: The controverted question whether neutralisation of a -State creates a State servitude is answered by Clauss (p. 167) in the -affirmative, but by Ullmann (§ 99), correctly, I think, in the negative. -But a distinction must be drawn between neutralisation of a whole State -and neutralisation of certain parts of a State. In the latter case a -State servitude is indeed created.] - -[Sidenote: Different kinds of State Servitudes.] - -§ 206. According to different qualities different kinds of State -servitudes must be distinguished. - -(1) Affirmative, active, or positive, are those servitudes which give -the right to a State to perform certain acts on the territory of another -State, such as to build and work a railway, to establish a custom-house, -to let an armed force pass through a certain territory (_droit -d'étape_), or to keep troops in a certain fortress, to use a port or an -island as a coaling station, and the like. - -(2) Negative, are such servitudes as give a right to a State to demand -of another State that the latter shall abstain from exercising its -territorial supremacy in certain ways. Thus a State can have a right to -demand that a neighbouring State shall not fortify certain towns near -the frontier, that another State shall not allow foreign men-of-war in a -certain harbour.[390] - -[Footnote 390: Affirmative State servitudes consist _in patiendo_, -negative servitudes _in non faciendo_. The rule of Roman Law _servitus -in faciendo consistere nequit_ has been adopted by the Law of Nations.] - -(3) Military, are those State servitudes which are acquired for military -purposes, such as the right to keep troops in a foreign fortress, or to -let an armed force pass through foreign territory, or to demand that a -town on foreign territory shall not be fortified, and the like. - -(4) Economic, are those servitudes which are acquired for the purpose of -commercial interests, traffic, and intercourse in general, such as the -right of fisheries in foreign territorial waters, to build a railway on -or lay a telegraph cable through foreign territory, and the like. - -[Sidenote: Validity of State Servitudes.] - -§ 207. Since State servitudes, in contradistinction to personal rights -(rights _in personam_), are rights inherent to the object with which -they are connected (rights _in rem_), they remain valid and may be -exercised however the ownership of the territory to which they apply may -change. Therefore, if, after the creation of a State servitude, the part -of the territory affected comes by subjugation or cession under the -territorial supremacy of another State, such servitude remains in force. -Thus, when the Alsatian town of Hüningen became in 1871, together with -the whole of Alsace, German territory, the State servitude created by -the Treaty of Paris, 1815, that Hüningen should, in the interest of the -Swiss canton of Basle, never be fortified, was not extinguished.[391] -Thus, further, when in 1860 the former Sardinian provinces of Chablais -and Faucigny became French, the State servitude created by article 92 -of the Act of the Vienna Congress, 1815, that Switzerland should have -temporarily during war the right to locate troops in these provinces, -was not extinguished.[392] - -[Footnote 391: Details in Clauss, pp. 15-17.] - -[Footnote 392: Details in Clauss, pp. 8-15.] - -It is a moot point whether military State servitudes can be exercised in -time of war by a belligerent if the State with whose territory they are -connected remains neutral. Must such State, for the purpose of upholding -its neutrality, prevent the belligerent from exercising the respective -servitude--for instance, the right of passage of troops?[393] - -[Footnote 393: This question became practical when in 1900, during the -South African war, Great Britain claimed, and Portugal was ready to -grant, passage of troops through Portuguese territory in South Africa. -See below, vol. II. §§ 306 and 323; Clauss, pp. 212-217; and Dumas in -R.G. XVI. (1909), pp. 289-316.] - -[Sidenote: Extinction of State Servitudes.] - -§ 208. State servitudes are extinguished by agreement between the States -concerned, or by express or tacit[394] renunciation on the part of the -State in whose interest they were created. They are not, according to -the correct opinion, extinguished by reason of the territory involved -coming under the territorial supremacy of another State. But it is -difficult to understand why, although State servitudes are called into -existence through treaties, it is sometimes maintained that the clause -_rebus sic stantibus_[395] cannot be applied in case a vital change of -circumstances makes the exercise of a State servitude unbearable. It is -a matter of course that in such case the restricted State must -previously try to come to terms with the State which is the subject of -the servitude. But if an agreement cannot be arrived at on account of -the unreasonableness of the other party, the clause _rebus sic -stantibus_ may well be resorted to.[396] The fact that the practice of -the States does not provide any example of an appeal to this clause for -the purpose of doing away with a State servitude proves only that such -appeal has hitherto been unnecessary. - -[Footnote 394: See Bluntschli, § 359 b. The opposition of Clauss (p. -219) and others to this sound statement of Bluntschli's is not -justified.] - -[Footnote 395: See below, § 539.] - -[Footnote 396: See Bluntschli, § 359 d, and Pradier-Fodéré, II. No. 845. -Clauss (p. 222) and others oppose this sound statement likewise.] - - -XI - -MODES OF ACQUIRING STATE TERRITORY - - Vattel, I. §§ 203-207--Hall, § 31--Westlake, I. pp. - 84-116--Lawrence, §§ 74-78--Phillimore, I. §§ 222-225--Twiss, I. - §§ 113-139--Halleck, I. p. 154--Taylor, §§ 217-228--Wheaton, §§ - 161-163--Bluntschli, §§ 278-295--Hartmann, § 61--Heffter, § - 69--Holtzendorff in Holtzendorff, II. pp. 252-255--Gareis, § - 76--Liszt, § 10--Ullmann, § 92--Bonfils, No. 532--Despagnet, No. - 378--Pradier-Fodéré, II. Nos. 781-787--Mérignhac, II. pp. - 410-412--Rivier, I. § 12--Nys, II. pp. 1-3--Calvo, I. § - 263--Fiore, I. Nos. 838-840--Martens, I. § 90--Heimburger, "Der - Erwerb der Gebietshoheit" (1888). - -[Sidenote: Who can acquire State Territory?] - -§ 209. Since States only and exclusively are subjects of the Law of -Nations, it is obvious that, as far as the Law of Nations is concerned, -States[397] solely can acquire State territory. But the acquisition of -territory by an existing State and member of the Family of Nations must -not be confounded, first, with the foundation of a new State, and, -secondly, with the acquisition of such territory and sovereignty over it -by private individuals or corporations as lies outside the dominion of -the Law of Nations. - -[Footnote 397: There is no doubt that no full-Sovereign State is, as a -rule, prevented by the Law of Nations from acquiring more territory than -it already owns, unless some treaty arrangement precludes it from so -doing. As regards the question whether a neutralised State is, by its -neutralisation, prevented from acquiring territory, see above, § 96, and -below, § 215.] - -(1) Whenever a multitude of individuals, living on or entering into such -a part of the surface of the globe as does not belong to the territory -of any member of the Family of Nations, constitute themselves as a State -and nation on that part of the globe, a new State comes into existence. -This State is not, by reason of its birth, a member of the Family of -Nations. The formation of a new State is, as will be remembered from -former statements,[398] a matter of fact, and not of law. It is through -recognition, which is a matter of law, that such new State becomes a -member of the Family of Nations and a subject of International Law. As -soon as recognition is given, the new State's territory is recognised as -the territory of a subject of International Law, and it matters not how -this territory was acquired before the recognition. - -[Footnote 398: See above, § 71.] - -(2) Not essentially different is the case in which a private individual -or a corporation acquires land with sovereignty over it in countries -which are not under the territorial supremacy of a member of the Family -of Nations. The actual proceeding in all such cases is that all such -acquisition is made either by occupation of hitherto uninhabited land, -for instance an island, or by cession from a native tribe living on the -land. Acquisition of territory and sovereignty thereon in such cases -takes place outside the dominion of the Law of Nations, and the rules of -this law, therefore, cannot be applied. If the individual or corporation -which has made the acquisition requires protection by the Law of -Nations, they must either declare a new State to be in existence and ask -for its recognition by the Powers, as in the case of the former Congo -Free State,[399] or they must ask a member of the Family of Nations to -acknowledge the acquisition as made on its behalf.[400] - -[Footnote 399: See above, § 101. The case of Sir James Brooke, who -acquired in 1841 Sarawak, in North Borneo, and established an -independent State there, of which he became the Sovereign, may also be -cited. Sarawak is under English protectorate, but the successor of Sir -James Brooke is still recognised as Sovereign.] - -[Footnote 400: The matter is treated with great lucidity by Heimburger, -pp. 44-77, who defends the opinion represented in the text against Sir -Travers Twiss (I. Preface, p. x.; also in R.I. XV. p. 547, and XVI. p. -237) and other writers. See also Ullmann, § 93.] - -[Sidenote: Former Doctrine concerning Acquisition of Territory.] - -§ 210. No unanimity exists among writers on the Law of Nations with -regard to the modes of acquiring territory on the part of the members of -the Family of Nations. The topic owes its controversial character to -the fact that the conception of State territory has undergone a great -change since the appearance of the science of the Law of Nations. When -Grotius created that science, State territory used to be still, as in -the Middle Ages, more or less identified with the private property of -the monarch of the State. Grotius and his followers applied, therefore, -the rules of Roman Law concerning the acquisition of private property to -the acquisition of territory by States.[401] As nowadays, as far as -International Law is concerned, every analogy to private property has -disappeared from the conception of State territory, the acquisition of -territory by a State can mean nothing else than the acquisition of -_sovereignty_ over such territory. It is obvious that under these -circumstances the rules of Roman Law concerning the acquisition of -private property can no longer be applied. Yet the fact that they have -been applied in the past has left traces which can hardly be -obliterated; and they need not be obliterated, since they contain a good -deal of truth in agreement with the actual facts. But the different -modes of acquiring territory must be taken from the real practice of the -States, and not from Roman Law, although the latter's terminology and -common-sense basis may be made use of. - -[Footnote 401: See above, § 168. The distinction between _imperium_ and -_dominium_ in Seneca's _dictum_ that "omnia rex imperio possidet, -singuli dominio" was well known, and Grotius, II. c. 3, § 4, quotes it, -but the consequences thereof were nevertheless not deduced. (See -Westlake, Chapters, pp. 129-133, and Westlake, I. pp. 84-88.)] - -[Sidenote: What Modes of Acquisition of Territory there are.] - -§ 211. States as living organisms grow and decrease in territory. If the -historical facts are taken into consideration, different reasons may be -found to account for the exercise of sovereignty by a State over the -different sections of its territory. One section may have been ceded by -another State, another section may have come into the possession of the -owner in consequence of accretion, a third through subjugation, a -fourth through occupation of no State's land. As regards a fifth -section, a State may say that it has exercised its sovereignty over the -same for so long a period that the fact of having had it in undisturbed -possession is a sufficient title of ownership. Accordingly, five modes -of acquiring territory may be distinguished, namely: cession, -occupation, accretion, subjugation, and prescription. Most writers -recognise these five modes. Some, however, do not recognise -prescription; some assert that accretion creates nothing else than a -modification of the territory of a State; and some do not recognise -subjugation at all, or declare it to be only a special case of -occupation. It is for these reasons that some writers recognise only two -or three[402] modes of acquiring territory. Be that as it may, all -modes, besides the five mentioned, enumerated by some writers, are in -fact not special modes, but only special cases of cession.[403] And -whatever may be the value of the opinions of publicists, so much is -certain that the practice of the States recognises cession, occupation, -accretion, subjugation, and prescription as distinct modes of acquiring -territory. - -[Footnote 402: Thus Gareis (§ 70) recognises cession and occupation -only, whereas Heimburger (pp. 106-110) and Holtzendorff (II. p. 254) -recognise cession, occupation, and accretion only.] - -[Footnote 403: See below, § 216. Such alleged special modes are sale, -exchange, gift, marriage contract, testamentary disposition, and the -like.] - -[Sidenote: Original and derivative Modes of Acquisition.] - -§ 212. The modes of acquiring territory are correctly divided according -as the title they give is derived from the title of a prior owner State, -or not. Cession is therefore a derivative mode of acquisition, whereas -occupation, accretion, subjugation, and prescription are original -modes.[404] - -[Footnote 404: Lawrence (§ 74) enumerates conquest (subjugation) and -prescription besides cession as derivative modes. This is, however, -merely the consequence of a peculiar conception of what is called a -derivative mode of acquisition.] - - -XII - -CESSION - - Hall, § 35--Lawrence, § 76--Phillimore, I. §§ 252-273--Twiss, I. § - 138--Walker, § 10--Halleck, I. pp. 154-157--Taylor, § 227--Moore, - I. §§ 83-86--Bluntschli, §§ 285-287--Hartmann, § 61--Heffter, §§ - 69 and 182--Holtzendorff in Holtzendorff, II. pp. 269-274--Gareis, - § 70--Liszt, § 10--Ullmann, §§ 97-98--Bonfils, Nos. - 364-371--Mérignhac, II. pp. 487-497--Despagnet, Nos. - 381-391--Pradier-Fodéré, II. Nos. 817-819--Rivier, I. pp. - 197-217--Nys, II. pp. 8-31--Calvo, I. § 266--Fiore, II. §§ - 860-861, and Code, No. 1053--Martens, I. § 91--Heimburger, "Der - Erwerb der Gebietshoheit" (1888), pp. 110-120. - -[Sidenote: Conception of cession of State Territory.] - -§ 213. Cession of State territory is the transfer of sovereignty over -State territory by the owner State to another State. There is no doubt -whatever that such cession is possible according to the Law of Nations, -and history presents innumerable examples of such transfer of -sovereignty. The Constitutional Law of the different States may or may -not lay down special rules[405] for the transfer or acquisition of -territory. Such rules can have no direct influence upon the rules of the -Law of Nations concerning cession, since Municipal Law can neither -abolish existing nor create new rules of International Law.[406] But if -such municipal rules contain constitutional restrictions on the -Government with regard to cession of territory, these restrictions are -so far important that such treaties of cession concluded by heads of -States or Governments as violate these restrictions are not -binding.[407] - -[Footnote 405: See above, § 168.] - -[Footnote 406: See above, § 21.] - -[Footnote 407: See below, § 497.] - -[Sidenote: Subjects of cession.] - -§ 214. Since cession is a bilateral transaction, it has two -subjects--namely, the ceding and the acquiring State. Both subjects must -be States, and only those cessions in which both subjects are States -concern the Law of Nations. Cessions of territory made to private -persons and to corporations[408] by native tribes or by States outside -the dominion of the Law of Nations do not fall within the sphere of -International Law, neither do cessions of territory by native tribes -made to States[409] which are members of the Family of Nations. On the -other hand, cession of territory made to a member of the Family of -Nations by a State as yet outside that family is real cession and a -concern of the Law of Nations, since such State becomes through the -treaty of cession in some respects a member of that family.[410] - -[Footnote 408: See above, § 209, No. 2.] - -[Footnote 409: See below, §§ 221 and 222.] - -[Footnote 410: See above, § 103.] - -[Sidenote: Object of cession.] - -§ 215. The object of cession is sovereignty over such territory as has -hitherto already belonged to another State. As far as the Law of Nations -is concerned, every State as a rule can cede a part of its territory to -another State, or by ceding the whole of its territory can even totally -merge in another State. However, since certain parts of State territory, -as for instance rivers and the maritime belt, are inalienable -appurtenances of the land, they cannot be ceded without a piece of -land.[411] - -[Footnote 411: See above, §§ 175 and 185.] - -The controverted question whether permanently neutralised parts of a not -permanently neutralised State can be ceded to another State must be -answered in the affirmative,[412] although the Powers certainly can -exercise an intervention by right. On the other hand, a permanently -neutralised State could not, except in the case of mere frontier -regulation, cede a part of its neutralised territory to another State -without the consent of the Powers.[413] Nor could a State under -suzerainty or protectorate cede a part or the whole of its territory to -a third State without the consent of the superior State. Thus, the -Ionian Islands could not in 1863 have merged in Greece without the -consent of Great Britain, which exercised a protectorate over these -islands. - -[Footnote 412: Thus in 1860 Sardinia ceded her neutralised provinces of -Chablais and Faucigny to France. See above, §207.] - -[Footnote 413: See above, § 96, and the literature there quoted.] - -[Sidenote: Form of cession.] - -§ 216. The only form in which a cession can be effected is an agreement -embodied in a treaty between the ceding and the acquiring State. Such -treaty may be the outcome of peaceable negotiations or of war, and the -cession may be one with or without compensation. - -If a cession of territory is the outcome of war, it is the treaty of -peace which stipulates the cession among its other provisions. Such -cession is regularly one without compensation, although certain duties -may be imposed upon the acquiring State, as, for instance, of taking -over a part of the debts of the ceding State corresponding to the extent -and importance of the ceded territory, or that of giving the individuals -domiciled on the ceded territory the option to retain their old -citizenship or, at least, to emigrate. - -Cessions which are the outcome of peaceable negotiations may be agreed -upon by the interested States from different motives and for different -purposes. Thus Austria, during war with Prussia and Italy in 1866, ceded -Venice to France as a gift, and some weeks afterwards France on her part -ceded Venice to Italy. The Duchy of Courland ceded in 1795 its whole -territory to and voluntarily merged thereby in Russia, in the same way -the then Free Town of Mulhouse merged in France in 1798, the Congo Free -State in Belgium in 1908, and the Empire of Korea in Japan in 1911. - -Cessions have in the past often been effected by transactions which are -analogous to transactions in private business life. As long as -absolutism was reigning over Europe, it was not at all rare for -territory to be ceded in _marriage contracts_ or by _testamentary -dispositions_.[414] In the interest of frontier regulations, but also -for other purposes, _exchanges_ of territory frequently take place. -_Sale_ of territory is quite usual; as late as 1868 Russia sold her -territory in America to the United States for 7,200,000 dollars, and in -1899 Spain sold the Caroline Islands to Germany for 25,000,000 pesetas. -_Pledge_ and _lease_ are also made use of. Thus, the then Republic of -Genoa pledged Corsica to France in 1768, Sweden pledged Wismar to -Mecklenburg in 1803; China[415] leased in 1898 Kiaochau to Germany,[416] -Wei-Hai-Wei and the land opposite the island of Hong Kong to Great -Britain,[417] and Port Arthur to Russia. - -[Footnote 414: Phillimore, I. §§ 274-276, enumerates many examples of -such cession. The question whether the monarch of a State under absolute -government could nowadays by a testamentary disposition cede territory -to another State must, I believe, be answered in the affirmative.] - -[Footnote 415: See above, § 171, No. 3. Cession may also take place -under the disguise of an agreement according to which territory comes -under the "administration" or under the "use, occupation, and control" -of a foreign State. See above, § 171, Nos. 2 and 4.] - -[Footnote 416: See Martens, N.R.G. 2nd Ser. XXX. (1904), p. 326.] - -[Footnote 417: See Martens, N.R.G. 2nd Ser. XXXII. (1905), pp. 89 and -90.] - -Whatever may be the motive and the purpose of the transaction, and -whatever may be the compensation, if any, for the cession, the ceded -territory is transferred to the new sovereign with all the international -obligations[418] locally connected with the territory (_Res transit cum -suo onere_, and _Nemo plus juris transferre potest, quam ipse habet_). - -[Footnote 418: How far a succession of States takes place in the case of -cession of territory has been discussed above, § 84.] - -[Sidenote: Tradition of the ceded Territory.] - -§ 217. The treaty of cession must be followed by actual tradition of the -territory to the new owner State, unless such territory is already -occupied by the new owner, as in the case where the cession is the -outcome of war and the ceded territory has been during such war in the -military occupation of the State to which it is now ceded. But the -validity of the cession does not depend upon tradition,[419] the cession -being completed by ratification of the treaty of cession, and the -capability of the new owner to cede the acquired territory to a third -State at once without taking actual possession of it.[420] But of course -the new owner State cannot exercise its territorial supremacy thereon -until it has taken physical possession of the ceded territory. - -[Footnote 419: This is controversial. Many writers--see, for instance, -Rivier, I. p. 203--oppose the opinion presented in the text.] - -[Footnote 420: Thus France, to which Austria ceded in 1859 Lombardy, -ceded this territory on her part to Sardinia without previously having -actually taken possession of it.] - -[Sidenote: Veto of third Powers.] - -§ 218. As a rule, no third Power has the right of _veto_ with regard to -a cession of territory. Exceptionally, however, such right may exist. It -may be that a third Power has by a previous treaty acquired a right of -pre-emption concerning the ceded territory, or that some early treaty -has created another obstacle to the cession, as, for instance, in the -case of permanently neutralised parts of a not-permanently neutralised -State.[421] And the Powers have certainly the right of _veto_ in case a -permanently neutralised State desires to increase its territory by -acquiring land through cession from another State.[422] But even where -no right of _veto_ exists, a third Power might intervene for political -reasons. For there is no duty on the part of third States to acquiesce -in such cessions of territory as endanger the balance of power or are -otherwise of vital importance.[423] And a strong State will practically -always interfere in case a cession of such a kind as menaces its vital -interests is agreed upon. Thus, when in 1867 the reigning King of -Holland proposed to sell Luxemburg to France, the North German -Confederation intervened, and the cession was not effected, but -Luxemburg became permanently neutralised. - -[Footnote 421: See above, § 215.] - -[Footnote 422: See above, §§ 209 and 215.] - -[Footnote 423: See above, § 136.] - -[Sidenote: Plebiscite and option.] - -§ 219. As the object of cession is sovereignty over the ceded territory, -all such individuals domiciled thereon as are subjects of the ceding -State become _ipso facto_ by the cession subjects[424] of the acquiring -State. The hardship involved in the fact that in all cases of cession -the inhabitants of the territory lose their old citizenship and are -handed over to a new Sovereign whether they like it or not, has created -a movement in favour of the claim that no cession shall be valid until -the inhabitants have by a plebiscite[425] given their consent to the -cession. And several treaties[426] of cession concluded during the -nineteenth century stipulate that the cession shall only be valid -provided the inhabitants consent to it through a plebiscite. But it is -doubtful whether the Law of Nations will ever make it a condition of -every cession that it must be ratified by a plebiscite.[427] The -necessities of international policy may now and then allow or even -demand such a plebiscite, but in most cases they will not allow it. - -[Footnote 424: See Keith, "The Theory of State Succession, &c." (1907), -pp. 42-45; Cogordan, "La Nationalité" (1890), pp. 317-400; Moore, III. § -379.] - -[Footnote 425: See Stoerk, "Option und Plebiscite" (1879); Rivier, I. p. -204; Freudenthal, "Die Volksabstimmung bei Gebietsabtretungen und -Eroberungen" (1891); Bonfils, No. 570; Despagnet, No. 391; Ullmann, § -97.] - -[Footnote 426: See Rivier, I. p. 210, where all these treaties are -enumerated.] - -[Footnote 427: Although Grotius (II. c. VI. § 4) taught this to be -necessary.] - -The hardship of the inhabitants being handed over to a new Sovereign -against their will can be lessened by a stipulation in the treaty of -cession binding the acquiring State to give the inhabitants of the ceded -territory the option of retaining their old citizenship on making an -express declaration. Many treaties of cession concluded during the -second half of the nineteenth century contain this stipulation. But it -must be emphasised that, failing a stipulation expressly forbidding it, -the acquiring State may expel those inhabitants who have made use of the -option and retained their old citizenship, since otherwise the whole -population of the ceded territory might actually consist of aliens and -endanger the safety of the acquiring State. - -The option to emigrate within a certain period, which is frequently -stipulated in favour of the inhabitants of ceded territory, is another -means of averting the charge that inhabitants are handed over to a new -Sovereign against their will. Thus article 2 of the Peace Treaty of -Frankfort, 1871, which ended the Franco-German war, stipulated that the -French inhabitants of the ceded territory of Alsace and Lorraine should -up to October 1, 1872, enjoy the privilege of transferring their -domicile from the ceded territory to French soil.[428] - -[Footnote 428: The important question whether subjects of the ceding -States who are born on the ceded territory but have their domicile -abroad become _ipso facto_ by the cession subjects of the acquiring -State, must, I think, be answered in the negative, unless special treaty -arrangements stipulate the contrary. Therefore, Frenchmen born in Alsace -but domiciled at the time of the cession in Great Britain, would not -have lost their French citizenship through the cession to Germany but -for article 1, part 2, of the additional treaty of Dec. 11, 1871, to the -Peace Treaty of Frankfort. (Martens, N.R.G. XX. p. 847.) See Bonfils, -No. 427, and Cogordan, "La Nationalité, &c." (1890), p. 361.] - - -XIII - -OCCUPATION - - Hall, §§ 32-34--Westlake, I. pp. 96-111, 119-133--Lawrence, § - 74--Phillimore, I. §§ 236-250--Twiss, I. §§ 118-126--Halleck, I. - p. 154--Taylor, §§ 221-224--Walker, § 9--Wharton, I. § 2--Moore, - I. §§ 80-81--Wheaton, §§ 165-174--Bluntschli, §§ - 278-283--Hartmann, § 61--Heffter, § 70--Holtzendorff in - Holtzendorff, II. pp. 255-266--Gareis, § 70--Liszt, § 10--Ullmann, - §§ 93-96--Bonfils, Nos. 536-563--Despagnet, Nos. - 329-399--Mérignhac, II. pp. 419-487--Pradier-Fodéré, II. Nos. - 784-802--Rivier, I. pp. 188-197--Nys, II. pp. 47-108--Calvo, I. §§ - 266-282--Fiore, II. Nos. 841-849, and Code, Nos. - 1054-1067--Martens, I. § 90--Tartarin, "Traité de l'occupation" - (1873)--Westlake, Chapters, pp. 155-187--Heimburger, "Der Erwerb - der Gebietshoheit" (1888), pp. 103-155--Salomon, "L'occupation des - territoires sans maître" (1889)--Jèze, "Étude théorique et - pratique sur l'occupation, &c." (1896)--Macdonell in the _Journal - of the Society of Comparative Legislation_, New Series, I. (1899), - pp. 276-286--Waultrin in R.G. XV. (1908), pp. 78, 185, 401. - -[Sidenote: Conception of Occupation.] - -§ 220. Occupation is the act of appropriation by a State through which -it intentionally acquires sovereignty over such territory as is at the -time not under the sovereignty of another State. Occupation as a mode of -acquisition differs from subjugation[429] chiefly in so far as the -conquered and afterwards annexed territory has hitherto belonged to -another State. Again, occupation differs from cession in so far as -through cession the acquiring State receives sovereignty over the -respective territory from the former owner State. In contradistinction -to cession, which is a derivative mode of acquisition, occupation is -therefore an original mode. And it must be emphasised that occupation -can only take place by and for a State;[430] it must be a State act, -that is, it must be performed in the service of a State, or it must be -acknowledged by a State after its performance. - -[Footnote 429: See below, § 236.] - -[Footnote 430: See above, § 209.] - -[Sidenote: Object of Occupation.] - -§ 221. Only such territory can be the object of occupation as is no -State's land, whether entirely uninhabited, as _e.g._ an island, or -inhabited by natives whose community is not to be considered as a State. -Even civilised individuals may live and have private property on a -territory without any union by them into a State proper which exercises -sovereignty over such territory. And natives may live on a territory -under a tribal organisation which need not be considered a State proper. -But a part or the whole of the territory of any State, even although -such State is entirely outside the Family of Nations, is not a possible -object of occupation, and it can only be acquired through cession[431] -or subjugation. On the other hand, a territory which belonged at one -time to a State but has been afterwards abandoned, is a possible object -for occupation on the part of another State.[432] - -[Footnote 431: See above, § 214.] - -[Footnote 432: See below, §§ 228 and 247.] - -Although the Open Sea is free and is, therefore, not the object of -occupation, the subsoil[433] of the bed of the Open Sea may become the -object of occupation through driving mines and piercing tunnels from the -coast.[434] - -[Footnote 433: See below, §§ 287_c_ and 287_d_.] - -[Footnote 434: When, in 1909, Admiral Peary reached the North Pole and -hoisted the flag of the United States the question was discussed whether -the North Pole could be the object of occupation. The question must, I -believe, be answered in the negative since there is no land on the Pole. -See Scott in A.J. III. (1909), pp. 928-941 and Balch in A.J. IV. (1910), -pp. 265-275.] - -[Sidenote: Occupation how effected.] - -§ 222. Theory and practice agree nowadays upon the rule that occupation -is effected through taking possession of and establishing an -administration over the territory in the name of and for the acquiring -State. Occupation thus effected is _real_ occupation, and, in -contradistinction to _fictitious_ occupation, is named _effective_ -occupation. Possession and administration are the two essential facts -that constitute an effective occupation. - -(1) The territory must really be taken into possession by the occupying -State. For this purpose it is necessary that the respective State should -take the territory under its sway (_corpus_) with the intention to -acquire sovereignty over it (_animus_). This can only be done by a -settlement on the territory accompanied by some formal act which -announces both that the territory has been taken possession of and that -the possessor intends to keep it under his sovereignty. The necessary -formal act is usually performed either by the publication of a -proclamation or by the hoisting of a flag. But such formal act by itself -constitutes fictitious occupation only, unless there is left on the -territory a settlement which is able to keep up the authority of the -flag. On the other hand, it is irrelevant whether or not some agreement -is made with the natives by which they submit themselves to the sway of -the occupying State. Any such agreement is usually neither understood -nor appreciated by them, and even if the natives really do understand -the meaning, such agreements have a moral value only.[435] - -[Footnote 435: If an agreement with natives were legally important, the -respective territory would be acquired by cession, and not by -occupation. But although it is nowadays quite usual to obtain a cession -from a native chief, this is, nevertheless, not cession in the technical -sense of the term in International Law; see above, § 214.] - -(2) After having, in the aforementioned way, taken possession of a -territory, the possessor must establish some kind of administration -thereon which shows that the territory is really governed by the new -possessor. If within a reasonable time after the act of taking -possession the possessor does not establish some responsible authority -which exercises governing functions, there is then no effective -occupation, since in fact no sovereignty of a State is exercised over -the territory. - -[Sidenote: Inchoate Title of Discovery.] - -§ 223. In former times the two conditions of possession and -administration which now make the occupation effective were not -considered necessary for the acquisition of territory through -occupation. In the age of the discoveries, States maintained that the -fact of discovering a hitherto unknown territory was sufficient reason -for considering it as acquired through occupation by the State in whose -service the discoverer made his explorations. And although later on a -real taking possession of the territory was considered necessary for its -occupation, it was not until the eighteenth century that the writers on -the Law of Nations postulated an _effective_ occupation as -necessary,[436] and it was not until the nineteenth century that the -practice of the States accorded with this postulate. But although -nowadays discovery does not constitute acquisition through occupation, -it is nevertheless not without importance. It is agreed that discovery -gives to the State in whose service it was made an _inchoate_ title; it -"acts as a temporary bar to occupation by another State"[437] within -such a period as is reasonably sufficient for effectively occupying the -discovered territory. If such period lapses without any attempt by the -discovering State to turn its _inchoate_ title into a _real_ title of -occupation, such inchoate title perishes, and any other State can now -acquire the territory by means of an effective occupation. - -[Footnote 436: See Vattel, I. § 208.] - -[Footnote 437: Thus Hall, § 32.] - -[Sidenote: Notification of Occupation to other Powers.] - -§ 224. No rule of the Law of Nations exists which makes notification of -occupation to other Powers a necessary condition of its validity. But as -regards all future occupations on the _African_ coast the Powers -assembled at the Berlin Congo Conference in 1884-1885 have by article 34 -of the General Act[438] of this Conference stipulated that occupation -shall be notified to one another, so that such notification is now a -condition of the validity of certain occupations in Africa. And there is -no doubt that in time this rule will either by custom or by treaty be -extended from occupations on the African coast to occupations everywhere -else. - -[Footnote 438: See Martens, N.R.G. 2nd Ser. X. p. 426.] - -[Sidenote: Extent of Occupation.] - -§ 225. Since an occupation is valid only if effective, it is obvious -that the extent of an occupation ought only to reach over so much -territory as is effectively occupied. In practice, however, the -interested States have neither in the past nor in the present acted in -conformity with such a rule; on the contrary, they have always tried to -attribute to their occupation a much wider area. Thus it has been -maintained that an effective occupation of the land at the mouth of a -river is sufficient to bring under the sovereignty of the occupying -State the whole territory through which such river and its tributaries -run up to the very crest of the watershed.[439] Again, it has been -maintained that, when a coast line has been effectively occupied, the -extent of the occupation reaches up to the watershed of all such rivers -as empty into the coast line.[440] And it has, thirdly, been asserted -that effective occupation of a territory extends the sovereignty of the -possessor also over neighbouring territories as far as it is necessary -for the integrity, security, and defence of the really occupied -land.[441] But all these and other fanciful assertions have no basis to -rest upon. In truth, no general rule can be laid down beyond the above, -that occupation reaches as far as it is effective. How far it is -effective is a question of the special case. It is obvious that when -the agent of a State takes possession of a territory and makes a -settlement on a certain spot of it, he intends thereby to acquire a vast -area by his occupation. Everything depends, therefore, upon the fact how -far around the settlement or settlements the established responsible -authority that governs the territory in the name of the possessor -succeeds in gradually extending the established sovereignty. The payment -of a tribute on the part of tribes settled far away, the fact that -flying columns of the military or the police sweep, when necessary, -remote spots, and many other facts, can show how far round the -settlements the possessor is really able to assert the established -authority. But it will always be difficult to mark exactly in this way -the boundary of an effective occupation, since naturally the tendency -prevails to extend the sway constantly and gradually over a wider area. -It is, therefore, a well-known fact that disputes concerning the -boundaries of occupations can only rarely be decided on the basis of -strict law; they must nearly always be compromised, whether by a treaty -or by arbitration.[442] - -[Footnote 439: Claim of the United States in the Oregon Boundary dispute -(1827) with Great Britain. See Twiss, I. §§ 126 and 127, and his "The -Oregon Question Examined" (1846); Phillimore, I. § 250; Hall, § 34.] - -[Footnote 440: Claim of the United States in their dispute with Spain -concerning the boundary of Louisiana (1803), approved of by Twiss, I. § -125.] - -[Footnote 441: This is the so-called "right of contiguity," approved of -by Twiss, I. §§ 124 and 131.] - -[Footnote 442: The Institute of International Law, in 1887, at its -meeting in Lausanne, adopted a "Projet de déclaration internationale -relatif aux occupations de territoires," comprising ten articles; see -Annuaire, X. p. 201.] - -[Sidenote: Protectorate as Precursor of Occupation.] - -§ 226. The growing desire to acquire vast territories as colonies on the -part of States unable at once to occupy effectively such territories -has, in the second half of the nineteenth century, led to the -contracting of agreements with the chiefs of natives inhabiting -unoccupied territories, by which these chiefs commit themselves to the -"protectorate" of States that are members of the Family of Nations. -These so-called protectorates are certainly not protectorates in the -technical sense of the term designating the relation that exists between -a strong and a weak State through a treaty by which the weak State -surrenders itself into the protection of the strong and transfers to the -latter the management of its more important international -relations.[443] Neither can they be compared with the protectorate of -members of the Family of Nations exercised over such non-Christian -States as are outside that family,[444] because the respective chiefs of -natives are not the heads of States, but heads of tribal communities -only. Such agreements, although they are named "Protectorates," are -nothing else than steps taken to exclude other Powers from occupying the -respective territories. They give, like discovery, an inchoate title, -and are preparations and precursors of future occupations. - -[Footnote 443: See above, §§ 92 and 93.] - -[Footnote 444: See above, § 94.] - -[Sidenote: Spheres of influence.] - -§ 227. The uncertainty of the extent of an occupation and the tendency -of every colonising State to extend its occupation constantly and -gradually into the interior, the "Hinterland," of an occupied territory, -has led several States which have colonies in Africa to secure for -themselves "spheres of influence" by international treaties with other -interested Powers. Spheres of influence are therefore the names of such -territories as are exclusively reserved for future occupation on the -part of a Power which has effectively occupied adjoining territories. In -this way disputes are avoided for the future, and the interested Powers -can gradually extend their sovereignty over vast territories without -coming into conflict with other Powers. Thus, to give some examples, -Great Britain has concluded treaties regarding spheres of influence with -Portugal[445] in 1890, with Italy[446] in 1891, with Germany[447] in -1886 and 1890, and with France[448] in 1898.[449] - -[Footnote 445: See Martens, N.R.G. 2nd Ser. XVIII. p. 558.] - -[Footnote 446: See Martens, N.R.G. 2nd Ser. XVIII. p. 175.] - -[Footnote 447: See Martens, N.R.G. 2nd Ser. XII. p. 298, and XVI. p. -895.] - -[Footnote 448: See Martens, N.R.G. 2nd Ser. XXIX. p. 116.] - -[Footnote 449: Protectorates and Spheres of Influence are exhaustively -treated in Hall, "Foreign Powers and Jurisdiction of the British Crown," -§§ 92-100; but Hall fails to distinguish between protectorates over -Eastern States and protectorates over native tribes.] - -[Sidenote: Consequences of Occupation.] - -§ 228. As soon as a territory is occupied by a member of the Family of -Nations, it comes within the sphere of the Law of Nations, because it -constitutes a portion of the territory of a subject of International -Law. No other Power can acquire it hereafter through occupation, unless -the present possessor has either intentionally withdrawn from it or has -been successfully driven away by the natives without making efforts, or -without capacity, to re-occupy it.[450] On the other hand, the Power -which now exercises sovereignty over the occupied territory is hereafter -responsible for all events of international importance on the territory. -Such Power has in especial to keep up a certain order among the native -tribes in order to restrain them from acts of violence against -neighbouring territories, and has eventually to punish them for such -acts. - -[Footnote 450: See below, § 247.] - -A question of some importance is how far occupation affects private -property of the inhabitants of the occupied territory. As according to -the modern conception of State territory the latter is not identical -with private property of the State, occupation brings a territory under -the sovereignty only of the occupying State, and therefore in no wise -touches or affects existing private property of the inhabitants. In the -age of the discoveries, occupation was indeed considered to include a -title to property over the whole occupied land, but nowadays this can no -longer be maintained. Being now their sovereign, the occupying State may -impose any burdens it likes on its new subjects, and may, therefore, -even confiscate their private property; but occupation as a mode of -acquiring territory does not of itself touch or affect private property -thereon. If the Municipal Law of the occupying State does give a title -to private property over the whole occupied land, such title is not -based on International Law. - - -XIV - -ACCRETION - - Grotius, II. c. 8, §§ 8-16--Hall, § 37--Lawrence, § - 75--Phillimore, I. §§ 240-241--Twiss, I. §§ 131 and 154--Moore, I. - § 82--Bluntschli, §§ 294-295--Hartmann, § 61--Heffter, § - 69--Holtzendorff in Holtzendorff, II. pp. 266-268--Gareis, § - 20--Liszt, § 10--Ullmann, § 92--Bonfils, No. 533--Despagnet, No. - 387--Pradier-Fodéré, II. Nos. 803-816--Rivier, I. pp. - 179-180--Nys, II. pp. 3-7--Calvo, I. § 266--Fiore, II. No. 852, - and Code, Nos. 1068-1070--Martens, I. § 90--Heimburger, "Der - Erwerb der Gebietshoheit" (1888), p. 107. - -[Sidenote: Conception of Accretion.] - -§ 229. Accretion is the name for the increase of land through new -formations. Such new formations may be a modification only of the -existing State territory, as, for instance, where an island rises within -such river or a part of it as is totally within the territory of one and -the same State; and in such case there is no increase of territory to -correspond with the increase of land. On the other hand, many new -formations occur which really do enlarge the territory of the State to -which they accrue, as, for instance, where an island rises within the -maritime belt. And it is a customary rule of the Law of Nations that -enlargement of territory, if any, created through new formations, takes -place _ipso facto_ by the accretion, without the State concerned taking -any special step for the purpose of extending its sovereignty. Accretion -must, therefore, be considered as a mode of acquiring territory. - -[Sidenote: Different kinds of Accretion.] - -§ 230. New formations through accretion may be artificial or natural. -They are artificial if they are the outcome of human work. They are -natural if they are produced through operation of nature. And within the -circle of natural formations different kinds must again be -distinguished--namely, alluvions, deltas, new-born islands, and -abandoned river beds. - -[Sidenote: Artificial Formations.] - -§ 231. Artificial formations are embankments, breakwaters, dykes, and -the like, built along the river or the coast-line of the sea. As such -artificial new formations along the bank of a boundary river may more -or less push the volume of water so far as to encroach upon the other -bank of the river, and as no State is allowed to alter the natural -condition of its own territory to the disadvantage[451] of the natural -conditions of a neighbouring State territory, a State cannot build -embankments, and the like, of such kind without a previous agreement -with the neighbouring State. But every State may construct such -artificial formations as far into the sea beyond the low-water mark as -it likes, and thereby gain considerably in land and also in territory, -since the extent of the at least three miles wide maritime belt is now -to be measured from the extended shore. - -[Footnote 451: See above, § 127.] - -[Sidenote: Alluvions.] - -§ 232. Alluvion is the name for an accession of land washed up on the -sea-shore or on a river-bank by the waters. Such accession is as a rule -produced by a slow and gradual process, but sometimes also through a -sudden act of violence, the stream detaching a portion of the soil from -one bank of a river, carrying it over to the other bank, and embedding -it there so as to be immovable (_avulsio_). Through alluvions the land -and also the territory of a State may be considerably enlarged. For, if -the alluvion takes place on the shore, the extent of the territorial -maritime belt is now to be measured from the extended shore. And, if the -alluvion takes place on the one bank of a boundary river, and the course -of the river is thereby naturally so altered that the waters in -consequence cover a part of the other bank, the boundary line, which -runs through the middle or through the mid-channel,[452] may thereby be -extended into former territory of the other riparian State. - -[Footnote 452: See above, § 199, No. 1.] - -[Sidenote: Deltas.] - -§ 233. Similar to alluvions are Deltas. Delta is the name for a tract of -land at the mouth of a river shaped like the Greek letter [Greek: D], -which land owes its existence to a gradual deposit by the river of sand, -stones, and earth on one particular place at its mouth. As the Deltas -are continually increasing, the accession of land they produce may be -very considerable, and such accession is, according to the Law of -Nations, considered an accretion to the land of the State to whose -territory the mouth of the respective river belongs, although the Delta -may be formed outside the territorial maritime belt. It is evident that -in the latter case an increase of territory is the result, since the at -least three miles wide maritime belt is now to be measured from the -shore of the Delta. - -[Sidenote: New-born Islands.] - -§ 234. The same and other natural processes which create alluvions on -the shore and banks, and Deltas at the mouths of rivers, lead to the -birth of new islands. If they rise on the High Seas outside the -territorial maritime belt, they are no State's land, and may be acquired -through occupation on the part of any State. But if they rise in rivers, -lakes, and within the maritime belt, they are, according to the Law of -Nations, considered accretions to the neighbouring land. It is for this -reason that such new islands in boundary rivers as rise within the -boundary line of one of the riparian States accrue to the land of such -State, and that, on the other hand, such islands as rise upon the -boundary line are divided into parts by it, the respective parts -accruing to the land of the riparian States concerned. If an island -rises within the territorial maritime belt, it accrues to the land of -the littoral State, and the extent of the maritime belt is now to be -measured from the shore of the new-born island. - -An illustrative example is the case[453] of the _Anna_. In 1805, during -war between Great Britain and Spain, the British privateer _Minerva_ -captured the Spanish vessel _Anna_ near the mouth of the River -Mississippi. When brought before the British Prize Court, the United -States claimed the captured vessel on the ground that she was captured -within the American territorial maritime belt. Lord Stowell gave -judgment in favour of this claim, because, although it appeared that the -capture did actually take place more than three miles off the coast of -the continent, the place of capture was within three miles of some small -mud-islands composed of earth and trees drifted down into the sea. - -[Footnote 453: See 5 C. Rob. 373.] - -[Sidenote: Abandoned Riverbeds.] - -§ 235. It happens sometimes that a river abandons its bed entirely or -dries up altogether. If such river was a boundary river, the abandoned -bed is now the natural boundary. But often the old boundary line cannot -be ascertained, and in such cases the boundary line is considered to run -through the middle of the abandoned bed, and the portions _ipso facto_ -accrue to the land of the riparian States, although the territory of one -of these States may become thereby enlarged, and that of the other -diminished. - - -XV - -SUBJUGATION - - Vattel, III. §§ 199-203--Hall, §§ 204-205--Lawrence, § - 77--Halleck, II. pp. 467-498--Taylor, § 220--Walker, § - 11--Wheaton, § 165--Moore, I. § 87--Bluntschli, §§ 287-289, - 701-702--Heffter, § 178--Liszt, § 10--Ullmann, §§ 92 and - 97--Bonfils, No. 535--Despagnet, Nos. 387-390--Rivier, I. pp. - 181-182, II. 436-441--Nys, II. pp. 40-46--Calvo, V. §§ 3117, - 3118--Fiore, II. No. 863, III. No. 1693, and Code, Nos. - 1078-1081--Martens, I. § 91--Holtzendorff, "Eroberung und - Eroberungsrecht" (1871)--Heimburger, "Der Erwerb der - Gebietshoheit" (1888), pp. 121-132--Westlake in _The Law Quarterly - Review_, XVII. (1901), p. 392. - -[Sidenote: Conception of Conquest and of Subjugation.] - -§ 236. Conquest is the taking possession of enemy territory through -military force in time of war. Conquest alone does not _ipso facto_ make -the conquering State the sovereign of the conquered territory, although -such territory comes through conquest for the time under the sway of the -conqueror. Conquest is only a mode of acquisition if the conqueror, -after having firmly established the conquest, formally annexed the -territory. Such annexation makes the enemy State cease to exist and -thereby brings the war to an end. And as such ending of war is named -subjugation, it is conquest followed by subjugation, and not conquest -alone, which gives a title and is a mode of acquiring territory.[454] It -is, however, quite usual to speak of conquest as a title, and everybody -knows that subjugation after conquest is thereby meant. But it must be -specially mentioned that, if a belligerent conquers a part of the enemy -territory and makes afterwards the vanquished State cede the conquered -territory in the treaty of peace, the mode of acquisition is not -subjugation but cession.[455] - -[Footnote 454: Concerning the distinction between conquest and -subjugation, see below, vol. II. § 264.] - -[Footnote 455: See above, §§ 216 and 219.] - -[Sidenote: Subjugation in Contradistinction to Occupation.] - -§ 237. Some writers[456] maintain that subjugation is only a special -case of occupation, because, as they assert, through conquest the enemy -territory becomes no State's land and the conqueror can acquire it by -turning his military occupation into absolute occupation. Yet this -opinion cannot be upheld, because military occupation, which is -conquest, in no way makes enemy territory no State's land. Conquered -enemy territory, although actually in possession and under the sway of -the conqueror, remains legally under the sovereignty of the enemy until -through annexation it comes under the sovereignty of the conqueror. -Annexation turns the conquest into subjugation. It is the very -annexation which _uno actu_ makes the vanquished State cease to exist -and brings the territory under the conqueror's sovereignty. Thus the -subjugated territory has not for one moment been no State's land, but -comes from the enemy's into the conqueror's sovereignty, although not -through cession, but through annexation. - -[Footnote 456: Holtzendorff, II. p. 255; Heimburger, p. 128; Salomon, p. -24.] - -[Sidenote: Justification of Subjugation as a Mode of Acquisition.] - -§ 238. As long as a Law of Nations has been in existence, the States as -well as the vast majority of writers have recognised subjugation as a -mode of acquiring territory. Its justification lies in the fact that war -is a contention between States for the purpose of overpowering one -another. States which go to war know beforehand that they risk more or -less their very existence, and that it may be a necessity for the victor -to annex the conquered enemy territory, be it in the interest of -national unity or of safety against further attacks, or for other -reasons. One must hope that the time will come when war will disappear -entirely, but, as long as war exists, subjugation will also be -recognised. If some writers[457] refuse to recognise subjugation at all -as a mode of acquiring territory, they show a lack of insight into the -historical development of States and nations.[458] - -[Footnote 457: Bonfils, No. 535; Fiore, II. No. 863, III. No. 1693, and -Code N. See also Despagnet, Nos. 387-390.] - -[Footnote 458: It should be mentioned that the Pan-American Congress at -Washington, 1890, passed a resolution that conquest should hereafter not -be a mode of acquisition of territory in America; see Moore, I. § 87.] - -[Sidenote: Subjugation of the whole or of a part of Enemy Territory.] - -§ 239. Subjugation is as a rule a mode of acquiring the entire enemy -territory. The actual process is regularly that the victor destroys the -enemy military forces, takes possession of the enemy territory, and then -annexes it, although the head and the Government of the extinguished -State might have fled, might protest, and still keep up a claim. Thus -after the war with Austria and her allies in 1866, Prussia subjugated -the territories of the Duchy of Nassau, the Kingdom of Hanover, the -Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-the-Main; -and Great Britain subjugated in 1900 the territories of the Orange Free -State and the South African Republic. - -But it is possible, although it will nowadays hardly occur, for a State -to conquer and annex a part of enemy territory, whether the war ends by -a Treaty of Peace in which the vanquished State, without ceding the -conquered territory, submits silently[459] to the annexation, or by -simple cessation of hostilities.[460] - -[Footnote 459: See below, vol. II. § 273.] - -[Footnote 460: See below, vol. II. § 263.] - -It must, however, be emphasised that such a mode of acquiring a part of -enemy territory is totally different from forcibly taking possession of -a part thereof during the continuance of war. Such a conquest, although -the conqueror may intend to keep the conquered territory and therefore -annex it, is not a title as long as the war has not terminated either -actually through simple cessation of hostilities or through a Treaty of -Peace. Therefore, the practice, which sometimes prevails, of annexing a -conquered part of enemy territory during war cannot be approved. -Concerning subjugation either of the whole or of a part of enemy -territory, it must be asserted that annexation gives a title only after -a _firmly established_ conquest. So long as war continues, conquest is -not firmly established.[461] - -[Footnote 461: See below, vol. II. § 60, concerning guerilla war after -the termination of real war. Many writers, however, deny that a conquest -is firmly established as long as guerilla war is going on.] - -[Sidenote: Consequences of Subjugation.] - -§ 240. Although subjugation is an original mode of acquisition, since -the sovereignty of the new acquirer is not derived from that of the -former owner State, the new owner State is nevertheless the successor of -the former owner State as regards many points which have been discussed -above (§ 82). It must be specially mentioned that, as far as the Law of -Nations is concerned, the subjugator does not acquire the private -property of the inhabitants of the annexed territory. Being now their -Sovereign, the subjugating State may indeed impose any burdens it -pleases on its new subjects, it may even confiscate their private -property, since a Sovereign State can do what it likes with its -subjects, but subjugation itself does not by International Law touch or -affect private property. - -As regards the national status of the subjects of the subjugated State, -doctrine and practice agree that such enemy subjects as are domiciled on -the annexed territory and remain there after annexation become _ipso -facto_ by the subjugation[462] subjects of the subjugator. But the -national status of such enemy subjects as are domiciled abroad and do -not return, and further of such as leave the country before the -annexation or immediately afterwards, is matter of dispute. Some writers -maintain that these individuals do in spite of their absence become -subjects of the subjugator, others emphatically deny it. Whereas the -practice of the United States of America seems to be in conformity with -the latter opinion,[463] the practice of Prussia in 1866 was in -conformity with the former. Thus in the case of Count Platen-Hallermund, -a Cabinet Minister of King George V. of Hanover, who left Hanover with -his King before the annexation in 1866 and was in 1868 prosecuted for -high treason before the Supreme Prussian Court at Berlin, this Court -decided that the accused had become a Prussian subject through the -annexation of Hanover.[464] I believe that a distinction must be made -between those individuals who leave the country _before_ and those who -leave it _after_ annexation. The former are not under the sway of the -subjugator at the time of annexation, and, since the personal supremacy -of their home State terminates with the latter's extinction through -annexation, they would seem to be outside the sovereignty of the -subjugator. But those individuals who leave the country _after_ -annexation leave it at a time when they have become subjects of the new -Sovereign, and they therefore remain such subjects even after they have -left the country, for there is no rule of the Law of Nations in -existence which obliges a subjugator to grant the privilege of -emigration[465] to the inhabitants of the conquered territory. - -[Footnote 462: See Hall _v._ Campbell (1774), 1 Cowper 1208, and United -States _v._ Repentigny (1866), 5 Wallace, 211. The case is similar to -that of cession: see above, § 219; Keith, "The Theory of State -Succession" (1907), pp. 45 and 48; Moore, III. § 379.] - -[Footnote 463: See Halleck, II. p. 476.] - -[Footnote 464: See Halleck, II. p. 476, on the one hand, and, on the -other, Rivier, II. p. 436. Valuable opinions of Zachariae and Neumann, -who deny that Count Platen was a Prussian subject, are printed in the -"Deutsche Strafrechts-Zeitung" (1868), pp. 304-320.] - -[Footnote 465: Both Westlake and Halleck state that the inhabitants -_must_ have a free option to stay or leave the country; but there is no -rule of International Law which imposes the duty upon a subjugator to -grant this option.] - -Different from the fact that enemy subjects become through annexation -subjects of the subjugator is the question what position they acquire -within the subjugating State. This question is one of Municipal, and not -of International Law. The subjugator can, if he likes, allow them to -emigrate and to renounce their newly acquired citizenship, and the -Municipal Law of the subjugating State can put them in any position it -likes, can in especial grant or refuse them the same rights as those -which its citizens by birth enjoy. - -[Sidenote: Veto of third Powers.] - -§ 241. Although subjugation is an original mode of acquiring territory -and no third Power has as a rule[466] a right of intervention, the -conqueror has not in fact an unlimited possibility of annexation of the -territory of the vanquished State. When the balance of power is -endangered or when other vital interests are at stake, third Powers can -and will intervene, and history records many instances of such -interventions. But it must be emphasised that the validity of the title -of the subjugator does not depend upon recognition on the part of other -Powers. And a mere protest of a third Power is of no legal weight -either. - -[Footnote 466: But this rule has exceptions, as in the case of a State -whose independence and integrity have been guaranteed by one or more -Powers.] - - -XVI - -PRESCRIPTION - - Grotius, II. c. 4--Vattel, I. §§ 140-151--Hall, § 36--Westlake, I. - pp. 92-94--Lawrence, § 78--Phillimore, I. §§ 251-261--Twiss, I. § - 129--Taylor, §§ 218-219--Walker, § 13--Wheaton, § 164--Moore, I. § - 88--Bluntschli, § 290--Hartmann, § 61--Heffter, § 12--Holtzendorff - in Holtzendorff, II. p. 255--Ullmann, § 92--Bonfils, No. - 534--Mérignhac, II. p. 412--Despagnet, No. 380--Pradier-Fodéré, II. - Nos. 820-829--Rivier, I. pp. 182-184--Nys, II. pp. 34-39--Calvo, - I. §§ 264-265--Fiore, II Nos. 850-851, and Code, Nos. - 1074-1077--Martens, I. § 90--G. F. Martens, §§ 70-71--Bynkershoek, - "Quaestiones juris publici," IV. c. 12--Heimburger, "Der Erwerb der - Gebietshoheit" (1888), pp. 140-155--Ralston in A.J. IV. (1910), - pp. 133-144. - -[Sidenote: Conception of Prescription.] - -§ 242. Since the existence of a science of the Law of Nations there has -always been opposition to prescription as a mode of acquiring territory. -Grotius rejected the usucaption of the Roman Law, yet adopted the same -law's _immemorial_ prescription[467] for the Law of Nations. But whereas -a good many writers[468] still defend that standpoint, others[469] -reject prescription altogether. Again, others[470] go beyond Grotius and -his followers and do not require possession from time _immemorial_, but -teach that an undisturbed continuous possession can under certain -conditions produce a title for the possessor, if the possession has -lasted for some length of time. - -[Footnote 467: See Grotius, II. c. 4, §§ 1, 7, 9.] - -[Footnote 468: See, for instance, Heffter, § 12; Martens, § 90.] - -[Footnote 469: G. F. Martens, § 71; Klüber, §§ 6 and 125; Holtzendorff, -II. p. 255; Ullmann, § 92.] - -[Footnote 470: Vattel, II. § 147; Wheaton, § 165; Phillimore, I. § 259; -Hall, § 36; Bluntschli, § 290; Pradier-Fodéré, II. No. 825; Bonfils, -No. 534, and many others.] - -This opinion would indeed seem to be correct, because it recognises -theoretically what actually goes on in practice. There is no doubt that -in the practice of the members of the Family of Nations a State is -considered to be the lawful owner even of those parts of its territory -of which originally it took possession wrongfully and unlawfully, -provided only the possessor has been in undisturbed possession for such -a length of time as is necessary to create the general conviction among -the members of the Family of Nations that the present condition of -things is in conformity with international order. Such prescription -cannot be compared with the usucaption of Roman Law because the latter -required _bona-fide_ possession, whereas the Law of Nations recognises -prescription both in cases where the State is in _bona-fide_ possession -and in cases where it is not. The basis of prescription in International -Law is nothing else than general recognition[471] of a fact, however -unlawful in its origin, on the part of the members of the Family of -Nations. And prescription in International Law may therefore be defined -as _the acquisition of sovereignty over a territory through continuous -and undisturbed exercise of sovereignty over it during such a period as -is necessary to create under the influence of historical development the -general conviction that the present condition of things is in conformity -with international order_. Thus, prescription in International Law has -the same rational basis as prescription in Municipal Law--namely, the -creation of stability of order. - -[Footnote 471: This is pointed out with great lucidity by Heimburger, -pp. 151-155; he rejects, however, prescription as a mode of acquiring -territory, maintaining that there is a customary rule of International -Law in existence according to which recognition can make good originally -wrongful possession.] - -[Sidenote: Prescription how effected.] - -§ 243. From the conception of prescription, as above defined, it becomes -apparent that no general rule can be laid down as regards the length of -time and other circumstances which are necessary to create a title by -prescription. Everything depends upon the merits of the individual case. -As long as other Powers keep up protests and claims, the actual exercise -of sovereignty is not undisturbed, nor is there the required general -conviction that the present condition of things is in conformity with -international order. But after such protests and claims, if any, cease -to be repeated, the actual possession ceases to be disturbed, and thus -under certain circumstances matters may gradually ripen into that -condition which is in conformity with international order. The question, -at what time and under what circumstances such a condition of things -arises, is not one of law but of fact. The question, for instance, -whether, although the three partitions of Poland were wrongful and -unlawful acts, Prussia, Austria, and Russia have now a good title by -prescription to hold territories which were formerly Polish must, I -doubt not, be answered in the affirmative. For all the members of the -Family of Nations have now silently acquiesced in the present condition -of things, although as late as 1846 Great Britain and France protested -against the annexation of the Republic of Cracow on the part of Austria. -In spite of the fact that the Polish nation has not yet given up its -hope of seeing a Polish State re-established on the former Polish -territory, the general conviction among the members of the Family of -Nations is that the present condition of things is in conformity with -international order. When, to give another example, a State which -originally held an island _mala fide_ under the title by occupation, -knowing well that this land had already been occupied by another State, -has succeeded in keeping up its possession undisturbed for so long a -time that the former possessor has ceased to protest and has silently -dropped the claim, the conviction will be prevalent among the members of -the Family of Nations that the present condition of things is in -conformity with international order. These examples show why a certain -number of years[472] cannot, once for all, be fixed to create the title -by prescription. There are indeed immeasurable and imponderable -circumstances and influences besides the mere run of time[473] at work -to create the conviction on the part of the members of the Family of -Nations that in the interest of stability of order the present possessor -should be considered the rightful owner of a territory. And these -circumstances and influences, which are of a political and historical -character, differ so much in the different cases that the length of time -necessary for prescription must likewise differ. - -[Footnote 472: Vattel (II. § 151) suggests that the members of the -Family of Nations should enter into an agreement stipulating the number -of years necessary for prescription, and David Dudley Field proposes the -following rule (52) in his Outlines of an International Code: "The -uninterrupted possession of territory or other property for fifty years -by a nation excludes the claim of every other nation."] - -[Footnote 473: Heffter's (§ 12) dictum, "Hundert Jahre Unrecht ist noch -kein Tag Recht" is met by the fact that it is not the operation of time -alone, but the co-operation of other circumstances and influences which -creates the title by prescription.] - - -XVII - -LOSS OF STATE TERRITORY - - Hall, § 34--Phillimore, I. §§ 284-295--Moore, I. §§ 89 and - 90--Holtzendorff in Holtzendorff, II. pp. 274-279--Gareis, § - 70--Liszt, § 10--Ullmann, § 101--Pradier-Fodéré, II. Nos. - 850-852--Rivier, I. § 13--Fiore, II. No. 865--Martens, I. § 92. - -[Sidenote: Six modes of losing State Territory.] - -§ 244. To the five modes of acquiring sovereignty over territory -correspond five modes of losing it--namely, cession, dereliction, -operation of nature, subjugation, prescription. But there is a sixth -mode of losing territory--namely, revolt. No special details are -necessary with regard to loss of territory through subjugation, -prescription, and cession, except that it is of some importance to -repeat here that the historical cases of pledging, leasing, and giving -territory to another State to administer are in fact, although not in -strict law, nothing else than cessions[474] of territory. But operation -of nature, revolt, and dereliction must be specially discussed. - -[Footnote 474: See above, §§ 171 and 216.] - -[Sidenote: Operation of Nature.] - -§ 245. Operation of nature as a mode of losing corresponds to accretion -as a mode of acquiring territory. Just as through accretion a State may -become enlarged, so it may become diminished through the disappearance -of land and other operations of nature. And the loss of territory -through operation of nature takes place _ipso facto_ by such operation. -Thus, if an island near the shore disappears through volcanic action, -the extent of the maritime territorial belt of the respective littoral -State is hereafter to be measured from the low-water mark of the shore -of the continent, instead of from the shore of the former island. Thus, -further, if through a piece of land being detached by the current of a -river from one bank and carried over to the other bank, the river alters -its course and covers now part of the land on the bank from which such -piece became detached, the territory of one of the riparian States may -decrease through the boundary line being _ipso facto_ transferred to the -present middle or mid-channel of the river. - -[Sidenote: Revolt.] - -§ 246. Revolt followed by secession is a mode of losing territory to -which no mode of acquisition corresponds.[475] Revolt followed by -secession has, as history teaches, frequently been a cause of loss of -territory. Thus the Netherlands fell away from Spain in 1579, Belgium -from the Netherlands in 1830, the United States of America from Great -Britain in 1776, Brazil from Portugal in 1822, the former Spanish South -American States from Spain in 1810, Greece from Turkey in 1830, Cuba -from Spain in 1898, Panama from Colombia in 1903. The question at what -time a loss of territory through revolt is consummated cannot be -answered once for all, since no hard-and-fast rule can be laid down -regarding the time when it can be said that a State broken off from -another has established itself safely and permanently. The matter has, -as will be remembered, been treated above (§ 74), in connection with -recognition. It may well happen that, although such a seceded State is -already recognised by a third Power, the mother country does not -consider the territory to be lost and succeeds in reconquering it. - -[Footnote 475: The possible case where a province revolts, secedes from -the mother country, and, after having successfully defended itself -against the attempts of the latter to reconquer it, unites itself with -the territory of another State, is a case of merger by cession of the -whole territory.] - -[Sidenote: Dereliction.] - -§ 247. Dereliction as a mode of losing corresponds to occupation as a -mode of acquiring territory. Dereliction frees a territory from the -sovereignty of the present owner State. Dereliction is effected through -the owner State's complete abandonment of the territory with the -intention of withdrawing from it for ever, thus relinquishing -sovereignty over it. Just as occupation[476] requires, first, the actual -taking into possession (_corpus_) of territory and, secondly, the -intention (_animus_) to acquire sovereignty over it, so dereliction -requires, first, actual abandonment of a territory, and, secondly, the -intention to give up sovereignty over it. Actual abandonment alone does -not involve dereliction as long as it must be presumed that the owner -has the will and ability to retake possession of the territory. Thus, -for instance, if the rising of natives forces a State to withdraw from a -territory, such territory is not derelict as long as the former -possessor is able and makes efforts to retake possession. It is only -when a territory is really derelict that any State may acquire it -through occupation.[477] History knows of several such cases. But very -often, when such occupation of derelict territory occurs, the former -owner protests and tries to prevent the new occupier from acquiring it. -The cases of the island of Santa Lucia and of the Delagoa Bay may be -quoted as illustrations:-- - -[Footnote 476: See above, § 222.] - -[Footnote 477: See above, § 228.] - -(_a_) In 1639 Santa Lucia, one of the Antilles Islands, was occupied by -England, but in the following year the English settlers were massacred -by the natives. No attempt was made by England to retake the island, and -France, considering it no man's land, took possession of it in 1650. In -1664 an English force under Lord Willoughby attacked the French, drove -them into the mountains, and held the island until 1667, when the -English withdrew and the French returned from the mountains. No further -step was made by England to retake the island, but she nevertheless -asserted for many years to come that she had not abandoned it _sine spe -redeundi_, and that, therefore, France in 1650 had no right to consider -it no man's land. Finally, however, England resigned her claims by the -Peace Treaty of Paris of 1763.[478] - -[Footnote 478: See Hall, § 34, and Moore, I. § 89.] - -(_b_) In 1823 England occupied, in consequence of a so-called cession -from native chiefs, a piece of territory at Delagoa Bay, which Portugal -claimed as part of the territory owned by her at the bay, maintaining -that the chiefs concerned were rebels. The dispute was not settled until -1875, when the case was submitted to the arbitration of the President of -France. The award was given in favour of Portugal, since the -interruption of the Portuguese occupation in 1823 was not to be -considered as abandonment of a territory over which Portugal had -exercised sovereignty for nearly three hundred years.[479] - -[Footnote 479: See Hall, § 34. The text of the award is printed in -Moore, "Arbitrations," V. p. 4984.] - - - - -CHAPTER II - -THE OPEN SEA - - -I - -RISE OF THE FREEDOM OF THE OPEN SEA - - Grotius, II. c. 2, § 3--Pufendorf, IV. c. 5, § 5--Vattel, I. §§ - 279-286--Hall, § 40--Westlake, I. pp. 161-162--Phillimore, I. §§ - 172-179--Taylor, §§ 242-246--Walker, Science, pp. - 163-171--Wheaton, §§ 186-187--Hartmann, § 64--Heffter, § - 73--Stoerk in Holtzendorff, II. pp. 483-490--Bonfils, Nos. - 573-576--Despagnet, No. 401--Pradier-Fodéré, II. Nos. - 871-874--Nys, II. pp. 132-139--Mérignhac, II. pp. 498-505--Calvo, - I. §§ 347-352--Fiore, II. Nos. 718-726--Martens, I. § 97--Perels, - § 4--Azuni, "Diritto maritimo" (1796), 1, c. I. Article - III.--Cauchy, "Le droit maritime international considéré dans ses - origines," 2 vols. (1862)--Nys, "Les origines du droit - international" (1894), pp. 377-388--Castel, "Du principe de la - liberté des mers" (1900), pp. 1-15--Fulton, "The Sovereignty of - the Seas" (1911), pp. 1-56. - -[Sidenote: Former Claims to Control over the Sea.] - -§ 248. In antiquity and the first half of the Middle Ages navigation on -the Open Sea was free to everybody. According to Ulpianus,[480] the sea -is open to everybody by nature, and, according to Celsus,[481] the sea, -like the air, is common to all mankind. Since no Law of Nations in the -modern sense of the term existed during antiquity and the greater part -of the Middle Ages, no importance is to be attached to the pronouncement -of Antoninus Pius, Roman Emperor from 138 to 161:--"Being[482] the -Emperor of the world, I am consequently the law of the sea." Nor is it -of importance that the Emperors of the old German Empire, who were -considered to be the successors of the Roman Emperors, styled themselves -among other titles "King of the Ocean." Real claims to sovereignty over -parts of the Open Sea begin, however, to be made in the second half of -the Middle Ages. And there is no doubt whatever that at the time when -the modern Law of Nations gradually rose it was the conviction of the -States that they could extend their sovereignty over certain parts of -the Open Sea. Thus, the Republic of Venice was recognised as the -Sovereign over the Adriatic Sea, and the Republic of Genoa as the -Sovereign of the Ligurian Sea. Portugal claimed sovereignty over the -whole of the Indian Ocean and of the Atlantic south of Morocco, Spain -over the Pacific and the Gulf of Mexico, both Portugal and Spain basing -their claims on two Papal Bulls promulgated by Alexander VI. in 1493, -which divided the new world between these Powers. Sweden and Denmark -claimed sovereignty over the Baltic, Great Britain over the Narrow Seas, -the North Sea, and the Atlantic from the North Cape to Cape Finisterre. - -[Footnote 480: L. 13, pr. D. VIII. 4: mari quod natura omnibus patet.] - -[Footnote 481: L. 3 D. XLIII. 8: Maris communem usum omnibus hominibus -ut aeris.] - -[Footnote 482: L. 9 D. XIV. 2: [Greek: egô men tou kosmou kyrios, -ho de nomos tês thalassês. ]] - -These claims have been more or less successfully asserted for several -hundreds of years. They were favoured by a number of different -circumstances, such as the maintenance of an effective protection -against piracy for instance. And numerous examples can be adduced which -show that such claims have more or less been recognised. Thus, Frederick -III., Emperor of Germany, had in 1478 to ask the permission of Venice -for a transportation of corn from Apulia through the Adriatic Sea.[483] -Thus, Great Britain in the seventeenth century compelled foreigners to -take out an English licence for fishing in the North Sea; and when in -1636 the Dutch attempted to fish without such licence, they were -attacked and compelled to pay £30,000 as the price for the -indulgence.[484] Again, when Philip II. of Spain was in 1554 on his way -to England to marry Queen Mary, the British Admiral, who met him in the -"British Seas," fired on his ship for flying the Spanish flag. And the -King of Denmark, when returning from a visit to James I. in 1606, was -forced by a British captain, who met him off the mouth of the Thames, to -strike the Danish flag. - -[Footnote 483: See Walker, "History," I. p. 163.] - -[Footnote 484: This and the two following examples are quoted by Hall, § -40.] - -[Sidenote: Practical Expression of claims to Maritime Sovereignty.] - -§ 249. Maritime sovereignty found expression in maritime ceremonials at -least. Such State as claimed sovereignty over a part of the Open Sea -required foreign vessels navigating on that part to honour its flag[485] -as a symbol of recognition of its sovereignty. So late as 1805 the -British Admiralty Regulations contained an order[486] to the effect that -"when any of His Majesty's ships shall meet with the ships of any -foreign Power within His Majesty's Seas (which extend to Cape -Finisterre), it is expected that the said foreign ships do strike their -topsail and take in their flag, in acknowledgment of His Majesty's -sovereignty in those seas; and if any do resist, all flag officers and -commanders are to use their utmost endeavours to compel them thereto, -and not suffer any dishonour to be done to His Majesty." - -[Footnote 485: See Fulton, "The Sovereignty of the Seas" (1911), pp. 38 -and 204-208.] - -[Footnote 486: Quoted by Hall, § 40.] - -But apart from maritime ceremonials maritime sovereignty found -expression in the levying of tolls from foreign ships, in the -interdiction of fisheries to foreigners, and in the control or even the -prohibition of foreign navigation. Thus, Portugal and Spain attempted, -after the discovery of America, to keep foreign vessels altogether out -of the seas over which they claimed sovereignty. The magnitude of this -claim created an opposition to the very existence of such rights. -English, French, and Dutch explorers and traders navigated on the Indian -Ocean and the Pacific in spite of the Spanish and Portuguese -interdictions. And when, in 1580, the Spanish ambassador Mendoza lodged -a complaint with Queen Elizabeth against Drake for having made his -famous voyage to the Pacific, Elizabeth answered that vessels of all -nations could navigate on the Pacific, since the use of the sea and the -air is common to all, and that no title to the ocean can belong to any -nation, since neither nature nor regard for the public use permits any -possession of the ocean.[487] - -[Footnote 487: See Walker, "History," I. p. 161. It is obvious that this -attitude of Queen Elizabeth was in no way the outcome of the conviction -that really no State could claim sovereignty over a part of the Open -Sea. For she herself did not think of dropping the British claims to -sovereignty over the "British Seas." Her arguments against the Spanish -claims were made in the interest of the growing commerce and navigation -of England, and any one daring to apply the same arguments against -England's claims would have incurred her royal displeasure.] - -[Sidenote: Grotius's Attack on Maritime Sovereignty.] - -§ 250. Queen Elizabeth's attitude was the germ out of which grew -gradually the present freedom of the Open Sea. Twenty-nine years after -her answer to Mendoza, in 1609, appeared Grotius's short treatise[488] -"Mare liberum." The intention of Grotius was to show that the Dutch had -a right of navigation and commerce with the Indies in spite of the -Portuguese interdictions. He contends that the sea cannot be State -property, because it cannot really be taken into possession through -occupation,[489] and that consequently the sea is by nature free from -the sovereignty of any State.[490] The attack of Grotius was met by -several authors of different nations. Gentilis defends Spanish and -English claims in his "Advocatio Hispanica," which appeared in 1613. -Likewise, in 1613 William Welwood defends the English claims in his -book, "De dominio maris." John Selden wrote his "Mare Clausum sive de -dominio maris" in 1618, but it was not printed until 1635. Sir John -Burroughs published in 1653 his book, "The Sovereignty of the British -Seas proved by Records, History, and the Municipal Laws of this -Kingdom." And in defence of the claims of the Republic of Venice Paolo -Sarpi published in 1676 his book "Del dominio del mare Adriatico." The -most important of these books defending maritime sovereignty is that of -Selden. King Charles I., by whose command Selden's "Mare Clausum" was -printed in 1635, was so much impressed by it that he instructed in 1629 -his ambassador in the Netherlands to complain of the audacity of Grotius -and to request that the author of the "Mare liberum" should be -punished.[491] - -[Footnote 488: Its full title is: "Mare liberum, seu de jure quod -Batavis competit ad Indicana commercia Dissertatio," and it is now -proved that this short treatise is only chapter 12 of another work of -Grotius, "De jure praedae," which was found in manuscript in 1864 and -published in 1868. See above, § 53.] - -[Footnote 489: See below, § 259.] - -[Footnote 490: Grotius was by no means the first author who defended the -freedom of the sea. See Nys, "Les origines du droit international," pp. -381 and 382.] - -[Footnote 491: See Phillimore, I. § 182.] - -The general opposition to Grotius's bold attack on maritime sovereignty -prevented his immediate victory. Too firmly established were the then -recognised claims to sovereignty over certain parts of the Open Sea for -the novel principle of the freedom of the sea to supplant them. Progress -was made regarding one point only--namely, freedom of navigation of the -sea. England had never pushed her claims so far as to attempt the -prohibition of free navigation on the so-called British Seas. And -although Venice succeeded in keeping up her control of navigation on the -Adriatic till the middle of the seventeenth century, it may be said that -in the second half of that century navigation on all parts of the Open -Sea was practically free for vessels of all nations. But with regard to -other points, claims to maritime sovereignty continued to be kept up. -Thus the Netherlands had by article 4 of the Treaty of Westminster, -1674, to acknowledge that their vessels had to salute the British flag -within the "British Seas" as a recognition of British maritime -sovereignty.[492] - -[Footnote 492: See Hall, § 40, p. 152, note 1.] - -[Sidenote: Gradual Recognition of the Freedom of the Open Sea.] - -§ 251. In spite of opposition, the work of Grotius was not to be -undone. All prominent writers of the eighteenth century take up again -the case of the freedom of the Open Sea, making a distinction between -the maritime belt which is to be considered under the sway of the -littoral States, and, on the other hand, the High Seas, which are under -no State's sovereignty. The leading author is Bynkershoek, whose -standard work, "De dominio maris," appeared in 1702. Vattel, G. F. de -Martens, Azuni, and others follow the lead. And although Great Britain -upheld her claim to the salute due to her flag within the "British Seas" -throughout the eighteenth and at the beginning of the nineteenth -century, the principle of the freedom of the Open Sea became more and -more vigorous with the growth of the navies of other States; and at the -end of the first quarter of the nineteenth century this principle became -universally recognised in theory and practice. Great Britain silently -dropped her claim to the salute due to her flag, and with it her claim -to maritime sovereignty, and became now a champion of the freedom of the -Open Sea. When, in 1821, Russia, who was then still the owner of Alaska -in North America, attempted to prohibit all foreign ships from -approaching the shore of Alaska within one hundred Italian miles, Great -Britain and the United States protested in the interest of the freedom -of the Open Sea, and Russia dropped her claims in conventions concluded -with the protesting Powers in 1824 and 1825. And when, after Russia had -sold Alaska in 1867 to the United States, the latter made regulations -regarding the killing of seals within Behring Sea, claiming thereby -jurisdiction and control over a part of the Open Sea, a conflict arose -in 1886 with Great Britain, which was settled by arbitration[493] in -1893 in favour of the freedom of the Open Sea. - -[Footnote 493: See below, § 284.] - - -II - -CONCEPTION OF THE OPEN SEA - - Field, article 53--Westlake, I. p. 160--Moore, II. § 308--Rivier, - I. pp. 234-235--Pradier-Fodéré, II. No. 868--Ullmann, § - 101--Stoerk in Holtzendorff, II. p. 483. - -[Sidenote: Discrimination between Open Sea and Territorial Waters.] - -§ 252. Open Sea or High Seas[494] is the coherent body of salt water all -over the greater part of the globe, with the exception of the maritime -belt and the territorial straits, gulfs, and bays, which are parts of -the sea, but not parts of the Open Sea. Wherever there is a salt-water -sea on the globe, it is part of the Open Sea, provided it is not -isolated from, but coherent with, the general body of salt water -extending over the globe, and provided that the salt water approach to -it is navigable and open to vessels of all nations. The enclosure of a -sea by the land of one and the same State does not matter, provided such -a navigable connection of salt water as is open to vessels of all -nations exists between such sea and the general body of salt water, even -if that navigable connection itself be part of the territory of one or -more littoral States. Whereas, therefore, the Dead Sea is Turkish and -the Aral Sea is Russian territory, the Sea of Marmora is part of the -Open Sea, although it is surrounded by Turkish land and although the -Bosphorus and the Dardanelles are Turkish territorial straits, because -these are now open to merchantmen of all nations. For the same reason -the Black Sea[495] is now part of the Open Sea. On the other hand, the -Sea of Azoff is not part of the Open Sea, but Russian territory, -although there exists a navigable connection between it and the Black -Sea. The reason is that this connection, the Strait of Kertch, is not -according to the Law of Nations open to vessels of all nations, since -the Sea of Azoff is less a sea than a mere gulf of the Black Sea.[496] - -[Footnote 494: Field defines in article 53: "The High Seas are the -ocean, and all connecting arms and bays or other extensions thereof not -within the territorial limits of any nation whatever."] - -[Footnote 495: See above, § 181.] - -[Footnote 496: So say Rivier, I. p. 237, and Martens, I. § 97: but -Stoerk in Holtzendorff, II. p. 513, declares that the Sea of Azoff is -part of the Open Sea.] - -[Sidenote: Clear Instances of Parts of the Open Sea.] - -§ 253. It is not necessary and not possible to particularise every -portion of the Open Sea. It is sufficient to state instances which -clearly indicate the extent of the Open Sea. To the Open Sea belong, of -course, all the so-called oceans--namely, the Atlantic, Pacific, Indian, -Arctic, and Antarctic. But the branches of the oceans, which go under -special names, and, further, the branches of these branches, which again -go under special names, belong likewise to the Open Sea. Examples of -these branches are: the North Sea, the English Channel, and the Irish -Sea; the Baltic Sea, the Gulf of Bothnia, the Gulf of Finland, the Kara -Sea,[497] and the White Sea; the Mediterranean and the Ligurian, -Tyrrhenian, Adriatic, Ionian, Marmora, and Black Seas; the Gulf of -Guinea; the Mozambique Channel; the Arabian Sea and the Red Sea; the Bay -of Bengal, the China Sea, the Gulf of Siam, and the Gulf of Tonking; the -Eastern Sea, the Yellow Sea, the Sea of Japan, and the Sea of Okhotsk; -the Behring Sea; the Gulf of Mexico and the Caribbean Sea; Baffin's Bay. - -[Footnote 497: The assertion of some Russian publicists that the Kara -Sea is Russian territory is refuted by Martens, I. § 97. As regards the -Kara Straits, see above, § 194.] - -It will be remembered that it is doubtful as regards many gulfs and bays -whether they belong to the Open Sea or are territorial.[498] - -[Footnote 498: See above, § 191.] - - -III - -THE FREEDOM OF THE OPEN SEA - - Hall, § 75--Westlake, I. pp. 160-166--Lawrence, § 100--Twiss, I. - §§ 172-173--Moore, II. §§ 309-310--Taylor, § 242--Wheaton, § - 187--Bluntschli, §§ 304-308--Heffter, § 94--Stoerk in - Holtzendorff, II. pp. 483-498--Ullmann, § 101--Bonfils, Nos. - 572-577--Pradier-Fodéré, II. Nos. 874-881--Rivier, I. § 17--Nys, - II. pp. 140-166--Calvo, I. § 346--Fiore, II. Nos. 724, 727, and - Code, Nos. 928-930--Martens, I. § 97--Perels, § 4--Testa, pp. - 63-66--Ortolan, "Diplomatie de la mer" (1856), I. pp. 119-149--De - Burgh, "Elements of Maritime International Law" (1868), pp. - 1-24--Castel, "Du principe de la liberté des mers" (1900), pp. - 37-80. - -[Sidenote: Meaning of the Term "Freedom of the Open Sea."] - -§ 254. The term "Freedom of the Open Sea" indicates the rule of the Law -of Nations that the Open Sea is not and never can be under the -sovereignty of any State whatever. Since, therefore, the Open Sea is not -the territory of any State, no State has as a rule a right to exercise -its legislation, administration, jurisdiction,[499] or police[500] over -parts of the Open Sea. Since, further, the Open Sea can never be under -the sovereignty of any State, no State has a right to acquire parts of -the Open Sea through occupation,[501] for, as far as the acquisition of -territory is concerned, the Open Sea is what Roman Law calls _res extra -commercium_.[502] But although the Open Sea is not the territory of any -State, it is nevertheless an object of the Law of Nations. The very fact -alone of such a rule exempting the Open Sea from the sovereignty of any -State whatever shows this. But there are other reasons. For if the Law -of Nations were to content itself with the rule which excludes the Open -Sea from possible State property, the consequence would be a condition -of lawlessness and anarchy on the Open Sea. To obviate such lawlessness, -customary International Law contains some rules which guarantee a -certain legal order on the Open Sea in spite of the fact that it is not -the territory of any State. - -[Footnote 499: As regards jurisdiction in cases of collision and salvage -on the Open Sea, see below, §§ 265 and 271.] - -[Footnote 500: See, however, above, § 190, concerning the zone for -Revenue and Sanitary Laws.] - -[Footnote 501: Following Grotius (II. c. 3, § 13) and Bynkershoek ("De -dominio maris," c. 3), some writers (for instance, Phillimore, I. § 203) -maintain that any part of the Open Sea covered for the time by a vessel -is by occupation to be considered as the temporary territory of the -vessel's flag State. And some French writers go even beyond that and -claim a certain zone round the respective vessel as temporary territory -of the flag State. But this is an absolutely superfluous fiction. (See -Stoerk in Holtzendorff, II. p. 494; Rivier, I. p. 238; Perels, pp. -37-39.)] - -[Footnote 502: But the subsoil of the bed of the Open Sea can well, -through driving mines and piercing tunnels from the coast, be acquired -by a littoral State. See above, § 221, and below, §§ 287_c_ and 287_d_.] - -[Sidenote: Legal Provisions for the Open Sea.] - -§ 255. This legal order is created through the co-operation of the Law -of Nations and the Municipal Laws of such States as possess a maritime -flag. The following rules of the Law of Nations are universally -recognised, namely:--First, that every State which has a maritime flag -must lay down rules according to which vessels can claim to sail under -its flag, and must furnish such vessels with some official voucher -authorising them to make use of its flag; secondly, that every State has -a right to punish all such foreign vessels as sail under its flag -without being authorised to do so; thirdly, that all vessels with their -persons and goods are, whilst on the Open Sea, considered under the sway -of the flag State; fourthly, that every State has a right to punish -piracy on the Open Seas even if committed by foreigners, and that, with -a view to the extinction of piracy, men-of-war of all nations can -require all suspect vessels to show their flag. - -These customary rules of International Law are, so to say, supplemented -by Municipal Laws of the maritime States comprising provisions, first, -regarding the conditions to be fulfilled by vessels for the purpose of -being authorised to sail under their flags; secondly, regarding the -details of jurisdiction over persons and goods on board vessels sailing -under their flags; thirdly, concerning the order on board ship and the -relations between the master, the crew, and the passengers; fourthly, -concerning punishment of ships sailing without authorisation under their -flags. - -The fact that each maritime State has a right to legislate for its own -vessels gives it a share in keeping up a certain order on the Open Sea. -And such order has been turned into a more or less general order since -the large maritime States have concurrently made more or less concordant -laws for the conduct of their vessels on the Open Sea. - -[Sidenote: Freedom of the Open Sea and war.] - -§ 256. Although the Open Sea is free and not the territory of any State, -it may nevertheless in its whole extent become the theatre of war, since -the region of war is not only the territories of the belligerents, but -likewise the Open Sea, provided that one of the belligerents at least is -a Power with a maritime flag.[503] Men-of-war of the belligerents may -fight a battle in any part of the Open Sea where they meet, and they may -capture all enemy merchantmen they meet on the Open Sea. And, further, -the jurisdiction and police of the belligerents become through the -outbreak of war in so far extended over vessels of other States, that -belligerent men-of-war may now visit, search, and capture neutral -merchantmen for breach of blockade, contraband, and the like. - -[Footnote 503: Concerning the distinction between theatre and region of -war, see below, vol. II. § 70.] - -However, certain parts of the Open Sea can become neutralised and -thereby be excluded from the region of war. Thus, the Black Sea became -neutralised in 1856 through article 11 of the Peace Treaty of Paris -stipulating:--"La Mer Noire est neutralisée: ouverte à la marine -marchande de toutes les nations, ses eaux et ses ports sont formellement -et à perpétuité interdites au pavillon de guerre, soit des puissances -riveraines, soit de tout autre puissance." Yet this neutralisation of -the Black Sea was abolished[504] in 1871 by article 1 of the Treaty of -London, and no other part of the Open Sea is at present neutralised. - -[Footnote 504: See above, § 181.] - -[Sidenote: Navigation and ceremonials on the Open Sea.] - -§ 257. The freedom of the Open Sea involves perfect freedom of -navigation for vessels of all nations, whether men-of-war, other public -vessels, or merchantmen. It involves, further, absence of compulsory -maritime ceremonials on the Open Sea. According to the Law of Nations, -no rights whatever of salute exist between vessels meeting on the Open -Sea. All so-called maritime ceremonials on the Open Sea[505] are a -matter either of courtesy and usage or of special conventions and -Municipal Laws of those States under whose flags vessels sail. There is -in especial no right of any State to require a salute from foreign -merchantmen for its men-of-war.[506] - -[Footnote 505: But not within the maritime belt or other territorial -waters. See above, §§ 122 and 187.] - -[Footnote 506: That men-of-war can on the Open Sea ask suspicious -foreign merchantmen to show their flags has nothing to do with -ceremonials, but with the supervision of the Open Sea in the interest of -its safety. See below, § 266.] - -The freedom of the Open Sea involves likewise freedom of inoffensive -passage[507] through the maritime belt for merchantmen of all nations, -and also for men-of-war of all nations in so far as the part concerned -of the maritime belt forms a part of the highways for international -traffic. Without such freedom of passage, navigation on the Open Sea by -vessels of all nations would be a physical impossibility. - -[Footnote 507: See above, § 188.] - -[Sidenote: Claim of States to Maritime Flag.] - -§ 258. Since no State can exercise protection over vessels that do not -sail under its flag, and since every vessel must, in the interest of the -order and safety of the Open Sea, sail under the flag of a State, the -question has been raised whether not only maritime States but also such -States as are not littoral States of the Sea have a claim to a maritime -flag. There ought to be no doubt[508] that the freedom of the Open Sea -involves a claim of any State to a maritime flag. At present no -non-littoral State actually has a maritime flag, and all vessels -belonging to subjects of such non-littoral States sail under the flag of -a maritime State. But any day might bring a change. The question as to -the claim to a maritime flag on the part of a non-littoral State was -discussed in Switzerland. When, in 1864, Swiss merchants in Trieste, -Smyrna, Hamburg, and St. Petersburg applied to the Swiss Bundesrath for -permission to have their vessels sailing under the Swiss flag, the -Bundesrath was ready to comply with the request, but the Swiss -Parliament, the Bundesversammlung, refused the necessary consent. In -1889 and 1891 new applications of the same kind were made, but -Switzerland again refused to have a maritime flag.[509] She had no doubt -that she had a claim to such flag, but was aware of the difficulties -arising from the fact that, having no seaports of her own, vessels -sailing under her flag would in many points have to depend upon the -goodwill of the maritime Powers.[510] - -[Footnote 508: See, however, Westlake, I. p. 165.] - -[Footnote 509: See Salis, "Schweizerisches Bundesrecht" (1891), vol. I. -p. 234.] - -[Footnote 510: The question is discussed by Calvo, I. § 427; Twiss, I. -§§ 197 and 198; and Westlake, I. p. 165.] - -Such States as have a maritime flag as a rule have a war flag different -from their commercial flag; some States, however, have one and the same -flag for both their navy and their mercantile marine. But it must be -mentioned that a State can by an international convention be restricted -to a mercantile flag only, such State being prevented from having a -navy. This is the position of Montenegro[511] according to article 29 of -the Treaty of Berlin of 1878. - -[Footnote 511: See above, § 127, but it is doubtful whether this -restriction is still in existence, since article 29 has, after the -annexation of Bosnia and Herzegovina by Austria in 1908, been modified -by the Powers, so that the port of Antivari and the other Montenegrin -waters are now no longer closed to men-of-war of all nations. See R.G. -XVII. (1910), pp. 173-176.] - -[Sidenote: Rationale for the Freedom of the Open Sea.] - -§ 259. Grotius and many writers who follow[512] him establish two facts -as the reason for the freedom of the Open Sea. They maintain, first, -that a part of the Open Sea could not effectively be occupied by a Navy -and could therefore not be brought under the actual sway of any State. -And they assert, secondly, that Nature does not give a right to anybody -to appropriate such things as may inoffensively be used by everybody and -are inexhaustible, and, therefore, sufficient for all.[513] The last -argument has nowadays hardly any value, especially for those who have -freed themselves from the fanciful rules of the so-called Law of Nature. -And the first argument is now without basis in face of the development -of the modern navies, since the number of public vessels which the -different States possess at present would enable many a State to occupy -effectively one part or another of the Open Sea. The real reason for the -freedom of the Open Sea is represented in the motive which led to the -attack against maritime sovereignty, and in the purpose for which such -attack was made--namely, the freedom of communication, and especially -commerce, between the States which are severed by the Sea. The Sea being -an international highway which connects distant lands, it is the common -conviction that it should not be under the sway of any State whatever. -It is in the interest of free intercourse[514] between the States that -the principle of the freedom of the Open Sea has become universally -recognised and will always be upheld.[515] - -[Footnote 512: See, for instance, Twiss, I. § 172, and Westlake, I. p. -160.] - -[Footnote 513: See Grotius, II. c. 2, § 3.] - -[Footnote 514: See above, § 142.] - -[Footnote 515: Connected with the reason for the freedom of the Open Sea -is the merely theoretical question whether the vessels of a State could -through an international treaty be prevented from navigating on the -whole or on certain parts of the Open Sea. See Pradier-Fodéré, II. Nos. -881-885, where this point is exhaustively discussed.] - - -IV - -JURISDICTION ON THE OPEN SEA - - Vattel, II. § 80--Hall, § 45--Westlake, I. pp. 166-176--Lawrence, - § 100--Halleck, p. 438--Taylor, §§ 262-267--Walker, § 20--Wheaton, - § 106--Moore, II. §§ 309-310--Bluntschli, §§ 317-352--Heffter, §§ - 78-80--Stoerk in Holtzendorff, II. pp. 518-550--Liszt, § - 26--Bonfils, Nos. 578-580, 597-613--Despagnet, Nos. - 422-430--Mérignhac, II. pp. 505-511--Pradier-Fodéré, V. Nos. - 2376-2470--Rivier, I. § 18--Nys, II. pp. 139-165--Calvo, I. §§ - 385-473--Fiore, II. Nos. 730-742, and Code, Nos. - 1001-1027--Martens, II. §§ 55-56--Perels, § 12--Testa, pp. - 98-112--Ortolan, "Diplomatie de la mer" (1856), II. 254-326--Hall, - "Foreign Powers and Jurisdiction of the British Crown" (1894), §§ - 106-109. - -[Sidenote: Jurisdiction on the Open Sea mainly connected with Flag.] - -§ 260. Jurisdiction on the Open Sea is in the main connected with the -maritime flag under which vessels sail. This is the consequence of the -fact stated above[516] that a certain legal order is created on the Open -Sea through the co-operation of rules of the Law of Nations with rules -of the Municipal Laws of such States as possess a maritime flag. But two -points must be emphasised. The one is that this jurisdiction is not -jurisdiction over the Open Sea as such, but only over vessels, persons, -and goods on the Open Sea. And the other is that jurisdiction on the -Open Sea is, although mainly, not exclusively connected with the flag -under which vessels sail, because men-of-war of all nations have, as -will be seen,[517] certain powers over merchantmen of all nations. The -points which must therefore be here discussed singly are--the claim of -vessels to sail under a certain flag, ship-papers, the names of vessels, -the connection of vessels with the territory of the flag State, the -safety of traffic on the Open Sea, the powers of men-of-war over -merchantmen of all nations, and, lastly, shipwreck. - -[Footnote 516: See above, § 255.] - -[Footnote 517: See below, § 266.] - -[Sidenote: Claim of Vessels to sail under a certain Flag.] - -§ 261. The Law of Nations does not include any rules regarding the claim -of vessels to sail under a certain maritime flag, but imposes the duty -upon every State having a maritime flag to stipulate by its own -Municipal Laws the conditions to be fulfilled by those vessels which -wish to sail under its flag. In the interest of order on the Open Sea, a -vessel not sailing under the maritime flag of a State enjoys no -protection whatever, for the freedom of navigation on the Open Sea is -freedom for such vessels only as sail under the flag of a State. But a -State is absolutely independent in framing the rules concerning the -claim of vessels to its flag. It can in especial authorise such vessels -to sail under its flag as are the property of foreign subjects; but such -foreign vessels sailing under its flag fall thereby under its -jurisdiction. The different States have made different rules concerning -the sailing of vessels under their flags.[518] Some, as Great -Britain[519] and Germany, allow only such vessels to sail under their -flags as are the exclusive property of their citizens or of corporations -established on their territory. Others, as Argentina, admit vessels -which are the property of foreigners. Others again, as France, admit -vessels which are in part the property of French citizens.[520] - -[Footnote 518: See Calvo, I. §§ 393-423, where the respective Municipal -Laws of most countries are quoted.] - -[Footnote 519: See section 1 of the Merchant Shipping Act, 1894 (27 and -28 Vict. c. 60), and sections 51 and 80 of the Merchant Shipping Act, -1906 (6 Ed. VII. c. 7).] - -[Footnote 520: The Institute of International Law adopted, at its -meeting at Venice--see Annuaire, XV. (1896), p. 201--in 1896, a body of -ten rules concerning the sailing of merchantmen under the maritime flag -of a State under the heading:--"_Règles relatives à l'usage du pavillon -national pour les navires de commerce_."] - -But no State can allow such vessel to sail under its flag as already -sails under the flag of another State. Just as a vessel not sailing -under the flag of a State, so a vessel sailing under the flags of two -different States does not enjoy any protection whatever. Nor is -protection enjoyed by such vessel as sails under the flag of a State -which, like Switzerland, has no maritime flag. Vessels belonging to -persons who are subjects of States without a maritime flag must obtain -authority to sail under some other State's flag, if they wish to enjoy -protection on the Open Sea. And any vessel, although the property of -foreigners, which sails without authority under the flag of a State, may -be captured by the men-of-war of such State, prosecuted, punished, and -confiscated.[521] - -[Footnote 521: See the case of the steamship _Maori King_ _v._ His -Britannic Majesty's Consul-General at Shanghai, L.R., App. c. 1909, p. -562, and sections 69 and 76 of the Merchant Shipping Act, 1894 (27 and -28 Vict. c. 60).] - -[Sidenote: Ship Papers.] - -§ 262. All States with a maritime flag are by the Law of Nations obliged -to make private vessels sailing under their flags carry on board -so-called ship papers, which serve the purpose of identification on the -Open Sea. But neither the number nor the kind of such papers is -prescribed by International Law, and the Municipal Laws of the different -States differ much on this subject.[522] But, on the other hand, they -agree as to the following papers:-- - -[Footnote 522: See Holland, "Manual of Naval Prize Law," §§ 178-194, -where the papers required by the different maritime States are -enumerated.] - -(1) An official voucher authorising the vessel to sail under its flag. -This voucher consists of a Certificate of Registry, in case the flag -State possesses, like Great Britain and Germany for instance, a register -of its mercantile marine; in other cases the voucher consists of a -"Passport," "Sea-letter," "Sea-brief," or of some other document serving -the purpose of showing the vessel's nationality. - -(2) The Muster Roll. This is a list of all the members of the crew, -their nationality, and the like. - -(3) The Log Book. This is a full record of the voyage, with all nautical -details. - -(4) The Manifest of Cargo. This is a list of the cargo of a vessel, with -details concerning the number and the mark of each package, the names of -the shippers and the consignees, and the like. - -(5) The Bills of Lading. These are duplicates of the documents which -the master of the vessel hands over to the shipper of the goods at -shipment. - -(6) The Charter Party, if the vessel is chartered. This is the contract -between the owner of the ship, who lets it wholly or in part, and the -charterer, the person who hires it. - -[Sidenote: Names of Vessels.] - -§ 263. Every State must register the names of all private vessels -sailing under its flag, and it must make them bear their names visibly, -so that every vessel may be identified from a distance. No vessel must -be allowed to change her name without permission and fresh -registration.[523] - -[Footnote 523: As regards Great Britain, see sections 47 and 48 of the -Merchant Shipping Act, 1894, and sections 50 and 53 of the Merchant -Shipping Act, 1906.] - -[Sidenote: Territorial Quality of Vessels on the Open Sea.] - -§ 264. It is a customary rule of the Law of Nations that men-of-war and -other public vessels of any State are, whilst on the Open Sea as well as -in foreign territorial waters, in every point considered as though they -were floating parts of their home States.[524] Private vessels are only -considered as though they were floating portions of the flag State in so -far as they remain whilst on the Open Sea in principle under the -exclusive jurisdiction of the flag State. Thus the birth of a child, a -will or business contract made, a crime[525] committed on board ship, -and the like, are considered as happening on the territory and therefore -under the territorial supremacy of the flag[526] State. But although -they appear in this respect as though they were, private vessels are in -fact not floating portions of the flag State. For in time of war -belligerent men-of-war can visit, search, and capture neutral private -vessels on the Open Sea for breach of blockade, contraband, and the -like, and in time of peace men-of-war of all nations have certain -powers[527] over merchantmen of all nations. - -[Footnote 524: See above, § 172, and below, §§ 447-451.] - -[Footnote 525: See Jordan in R.I. 2nd Ser. X. (1908), pp. 340-362 and -481-500.] - -[Footnote 526: Since, however, individuals abroad remain under the -personal supremacy of their home State, nothing can prevent a State from -legislating as regards such of its citizens as sail on the Open Sea on -board a foreign vessel.] - -[Footnote 527: See below, § 266. The question of the territoriality of -vessels is ably discussed by Hall, §§ 76-79.] - -[Sidenote: Safety of Traffic on the Open Sea.] - -§ 265. No rules of the Law of Nations exist as yet[528] for the purpose -of preventing collisions, saving lives after collisions, and the like, -but every State possessing a maritime flag has legislated for the -conduct on the Open Sea of vessels sailing under its flag concerning -signalling, piloting, courses, collisions, and the like. Although every -State can legislate on these matters independently of other States, more -and more corresponding rules have been put into force by all the States -during the second half of the nineteenth century, following the lead -given by Great Britain through section 25 of the Merchant Shipping Act -Amendment Act of 1862, the "Regulations for preventing Collisions at -Sea" which accompany this Act, and, further, Sections 16 to 20 of the -Merchant Shipping Act, 1873.[529] And the "Commercial Code of Signals -for the Use of all Nations," published by Great Britain in 1857, has -been adopted by all maritime States. In 1889 a maritime Conference took -place at Washington, at which eighteen maritime States were represented -and which recommended a body of rules for preventing collisions at sea -to be adopted by the single States,[530] and a revision of the Code of -Signals. These regulations were revised in 1890 by a British Committee -appointed by the Board of Trade,[531] and, after some direct -negotiations between the Governments, most maritime States have made -corresponding regulations by their Municipal Laws.[532] And a new and -revised edition of "The International Code of Signals" was published by -the British Board of Trade, in conformity with arrangements with other -maritime Powers, in 1900, and is now in general use.[533] - -[Footnote 528: It is to be expected that matters will soon undergo a -change, for the Conference of the International Maritime Committee, -which met at Brussels in September 1910 and where all the maritime -States of Europe, the United States of America, most of the South -American States, and Japan were represented, produced a draft convention -concerning collisions (see Supplement to the _American Journal of -International Law_, IV. (1910), p. 121). The "Maritime Conventions -Bill," which is now before Parliament, proposes such alterations of -British Municipal Law as would enable the British Government to ratify -this Convention. The Institute of International Law already in 1888, at -its meeting at Lausanne--see Annuaire, X. (1889), p. 150--adopted a body -of eight rules concerning the subject.] - -[Footnote 529: See 25 and 26 Vict. c. 63; 36 and 37 Vict. c. 83. The -matter is now dealt with by sections 418-421 of the Merchant Shipping -Act, 1894 (57 and 58 Vict. c. 60).] - -[Footnote 530: See Martens, N.R.G. 2nd Ser. XII. p. 416.] - -[Footnote 531: See Martens, N.R.G. 2nd Ser. XXII. p. 113.] - -[Footnote 532: Latest British Regulations, 1896.] - -[Footnote 533: The matter of collision at sea is exhaustively treated by -Prien, "Der Zusammenstoss von Schiffen nach dem Gesetzen des Erdhalls" -(2nd ed. 1899).] - -The question of jurisdiction in actions for damages for collision at sea -is not at all settled.[534] That the damaged innocent vessel can bring -an action against the guilty ship in the Courts of the latter's flag -State is beyond doubt since jurisdiction on the Open Sea follows the -flag. If the rule that all vessels while on the Open Sea are considered -under the sway of their flag State were one without exception, no other -State would claim jurisdiction in cases of collision but the flag State -of the guilty ship. Yet the practice of the maritime States[535] goes -far beyond this, without, however, being uniform. Thus, for instance, -France[536] claims jurisdiction if the damaged ship is French, although -the guilty ship may be foreign, and also in the event of both ships -being foreign in case both consent, or for urgent measures having a -provisionary character, or in case France is a place of payment. Thus, -further, Italy[537] claims jurisdiction even if both ships are foreign -in case an Italian port is the port nearest to the collision, or in case -the damaged ship was forced by the collision to remain in an Italian -port. Great Britain goes farthest, for the Admiralty Court claims -jurisdiction provided the guilty ship is in a British port at the time -the action for damages is brought, even if the collision took place -between two foreign ships anywhere on the High Seas.[538] And the -Admiralty Court justifies this extended claim of jurisdiction[539] by -maintaining that collision is a matter of _communis juris_, and can -therefore be adjudicated upon by the Courts[540] of all maritime -States.[541] - -[Footnote 534: See Phillimore, IV. § 815; Calvo, I. § 444; -Pradier-Fodéré, V. Nos. 2362-2374; Bar, "Private International Law" (2nd -ed. translated by Gillespie), pp. 720 and 928; Dicey, "Conflict of Laws" -(2nd ed.), pp. 650-652 and 790; Foote, "Private International Law" (3rd -ed.), pp. 486 and 495; Westlake, "Private International Law" (3rd ed.), -pp. 266-269; Marsden, "The Law of Collisions at Sea" (6th ed. 1910); -Williams and Bruce, "Treatise on the Jurisdiction of English Courts in -Admiralty Actions" (3rd ed. 1902).] - -[Footnote 535: See above, § 146.] - -[Footnote 536: See Pradier-Fodéré, No. 2363.] - -[Footnote 537: See Pradier-Fodéré, No. 2364.] - -[Footnote 538: Or even in foreign territorial waters. See Williams and -Bruce, _op. cit._, p. 78:--"The Admiralty Court from ancient times -exercised jurisdiction in cases of collision between foreign vessels on -the High Seas; and since the Admiralty Court Act, 1861, it has -entertained suits for collision between ships in foreign waters, and -between an English and a foreign ship in foreign waters."] - -[Footnote 539: _The Johann Friederich_ (1838), 1 W. Robinson, 35; the -Chartered Mercantile Bank of India, London, and China _v._ The -Netherlands India Steam Navigation Co., 10 Q.B.D. 537.] - -[Footnote 540: The practice of the United States of America coincides -with that of Great Britain; see the case of the _Belgenland_, 114, -United States, 355, and Wharton, I. § 27.] - -[Footnote 541: The Institute of International Law, at its meeting at -Lausanne in 1888, adopted two rules concerning the jurisdiction in cases -of collision; see Annuaire, X. (1889), p. 152.] - -[Sidenote: Powers of Men-of-war over Merchantmen of all Nations.] - -§ 266. Although the freedom of the Open Sea and the fact that vessels on -the Open Sea remain under the jurisdiction of the flag State exclude as -a rule the exercise of any State's authority over foreign vessels, there -are certain exceptions in the interest of all maritime nations. These -exceptions are the following:-- - -(1) Blockade and Contraband. In time of war belligerents can blockade -not only enemy ports and territorial coast waters, but also parts of the -Open Sea adjoining those ports and waters, and neutral merchantmen -attempting to break such a blockade can be confiscated. And, further, in -time of war belligerent men-of-war can visit, search, and eventually -seize neutral merchantmen for contraband, and the like. - -(2) Verification of Flag. It is a universally recognised customary rule -of International Law that men-of-war of all nations have, to maintain -the safety of the Open Sea against piracy, the power to require -suspicious private vessels on the Open Sea to show their flag.[542] But -such vessels must be suspicious, and, since a vessel may be a pirate -although she shows a flag, she may eventually be stopped and visited for -the purpose of inspecting her papers and thereby verifying the flag. It -is, however, quite obvious that this power of men-of-war must not be -abused, and that the home State is responsible for damages in case a -man-of-war stops and visits a foreign merchantman without sufficient -ground of suspicion. The right of every State to punish piracy on the -Open Sea will be treated below, §§ 272-280. - -[Footnote 542: So-called "Droit d'enquête" or "Vérification du -pavillon." This power of men-of-war has given occasion to much dispute -and discussion, but in fact nobody denies that in case of grave -suspicion this power does exist. See Twiss, I. § 193; Hall, § 81, p. -276; Fiore, II. Nos. 732-736; Perels, § 17; Taylor, § 266; Bonfils, No. -519.] - -(3) So-called Right of Pursuit. It is a universally recognised customary -rule that men-of-war of a littoral State can pursue into the Open Sea, -seize, and bring back into a port for trial any foreign merchantman that -has violated the law whilst in the territorial waters of the State in -question. But such pursuit into the Open Sea is permissible only if -commenced while the merchantman is still in the said territorial waters -or has only just escaped thence, and the pursuit must stop as soon as -the merchantman passes into the maritime belt of a foreign State.[543] - -[Footnote 543: See Hall, § 80.] - -(4) Abuse of Flag. It is another universally recognised rule that -men-of-war of every State may seize and bring to a port of their own for -punishment any foreign vessel sailing under the flag of such State -without authority.[544] Accordingly, Great Britain has, by section 69 -of the Merchant Shipping Act, 1894, enacted:--"If a person uses the -British flag and assumes the British national character on board a ship -owned in whole or in part by any persons not qualified to own a British -ship, for the purpose of making the ship appear a British ship, the ship -shall be subject to forfeiture under this Act, unless the assumption has -been made for the purpose of escaping capture by an enemy or by a -foreign ship of war in the exercise of some belligerent right." - -[Footnote 544: The four exceptions mentioned in the text above are based -on universally recognised customary rules of the Law of Nations. It is, -of course, possible for several States to enter into treaty agreements -according to which their men-of-war acquire certain powers over each -other's merchantmen on the Open Sea. According to such agreements, which -are, however, not universal, the following additional exceptions may be -enumerated:-- - -(1) In the interest of the suppression of the slave trade, the signatory -Powers of the General Act of the Brussels Conference of 1890 to which -all the larger maritime Powers belong, have, by articles 20-65, -stipulated that their men-of-war shall have the power, in certain parts -of the Open Sea where slave traffic still continues, to stop every -suspect vessel under 500 tons. - -(2) In the interest of the Fisheries in the North Sea, special cruisers -of the littoral Powers control all fishing vessels and bumboats. See -below, §§ 282 and 283. - -(3) In the interest of Transatlantic telegraph cables, men-of-war of the -signatory Powers of the treaty for the protection of such cables have -certain powers over merchantmen. (See below, § 287.)] - -[Sidenote: How Verification of Flag is effected.] - -§ 267. A man-of-war which meets a suspicious merchantman not showing her -colours and wishes to verify the same, hoists her own flag and fires a -blank cartridge. This is a signal for the other vessel to hoist her flag -in reply. If she takes no notice of the signal, the man-of-war fires a -shot across her bows. If the suspicious vessel, in spite of this -warning, still declines to hoist her flag, the suspicion becomes so -grave that the man-of-war may compel her to bring to for the purpose of -visiting her and thereby verifying her nationality. - -[Sidenote: How Visit is effected.] - -§ 268. The intention to visit may be communicated to a merchantman -either by hailing or by the "informing gun"--that is, by firing either -one or two blank cartridges. If the vessel takes no notice of this -communication, a shot may be fired across her bows as a signal to bring -to, and, if this also has no effect, force may be resorted to. After the -vessel has been brought to, either an officer is sent on board for the -purpose of inspecting her papers, or her master is ordered to bring his -ship papers for inspection on board the man-of-war. If the inspection -proves the papers to be in order, a memorandum of the visit is made in -the log-book, and the vessel is allowed to proceed on her course. - -[Sidenote: How Search is effected.] - -§ 269. Search is naturally a measure which visit must always precede. It -is because the visit has given no satisfaction that search is -instituted. Search is effected by an officer and some of the crew of the -man-of-war, the master and crew of the vessel to be searched not being -compelled to render any assistance whatever except to open locked -cupboards and the like. The search must take place in an orderly way, -and no damage must be done to the cargo. If the search proves everything -to be in order, the searchers have carefully to replace everything -removed, a memorandum of the search is to be made in the log-book, and -the searched vessel is to be allowed to proceed on her course. - -[Sidenote: How Arrest is effected.] - -§ 270. Arrest of a vessel takes place either after visit and search have -shown her liable thereto, or after she has committed some act which -alone already justifies her seizure. Arrest is effected through the -commander of the arresting man-of-war appointing one of her officers and -a part of her crew to take charge of the arrested vessel. Such officer -is responsible for the vessel and her cargo, which latter must be kept -safe and intact. The arrested vessel, either accompanied by the -arresting vessel or not, must be brought to such harbour as is -determined by the cause of the arrest. Thus, neutral or enemy ships -seized in time of war are always[545] to be brought into a harbour of -the flag State of the captor. And the same is the case in time of peace, -when a vessel is seized because her flag cannot be verified, or because -she was sailing under no flag at all. On the other hand, when a fishing -vessel or a bumboat is arrested in the North Sea, she is always to be -brought into a harbour of her flag State and handed over to the -authorities there.[546] - -[Footnote 545: Except in the case of distress or unseaworthiness; see -below, vol. II. § 193.] - -[Footnote 546: See below, §§ 282 and 283.] - -[Sidenote: Shipwreck and Distress on the Open Sea.] - -§ 271. It is at present the universal conviction on the part of the -States that goods and persons shipwrecked on the Open Sea do not thereby -lose the protection of the flag State of the shipwrecked vessel. No -State is allowed to recognise appropriation of abandoned vessels and -other derelicts on the Open Sea by those of its subjects who take -possession thereof. But every State can by its Municipal Laws enact that -those of its subjects who take possession of abandoned vessels and of -shipwrecked goods need not restore them to their owners without -salvage,[547] whether the act of taking possession occurred on the -actual Open Sea or within territorial waters and on shore of the -respective State. - -[Footnote 547: The Conference of the Maritime Committee held at Brussels -in September 1910 also produced a draft convention concerning salvage, -which the British Government likewise intends to ratify provided -Parliament passes the "Maritime Conventions Bill," see above, § 265, p. -333, note 2, and Supplement to the _American Journal of International -Law_, IV. (1910), p. 126. According to the practice of the Admiralty -Court--see the case of the _Johann Friederich_, 1 W. Robinson, -35--salvage on the Open Sea is, just like collisions, a matter of -_communis juris_ upon which the Courts of all maritime States are -competent to adjudicate. See Phillimore, IV. § 815; and Dicey, "Conflict -of Laws" (2nd ed. 1908), p. 791. See also sect. 545 and 565 of the -Merchant Shipping Act, 1894.] - -As regards vessels in distress on the Open Sea, some writers[548] -maintain that men-of-war must render assistance even to foreign vessels -in distress. But it is impossible to say that there is a customary or -conventional rule of the Law of Nations in existence which imposes upon -all States the duty of instructing their men-of-war to render assistance -to foreign vessels in distress, although many States order by Municipal -Regulations their men-of-war to render such assistance, and although -morally every vessel is bound to render assistance to another vessel in -distress.[549] - -[Footnote 548: See, for instance, Perels, § 25, and Fiore, II. No. 732.] - -[Footnote 549: According to article 11 of the draft convention -concerning salvage produced by the Conference of the Maritime Committee -at Brussels in September 1910--see above, note 1--"every master shall be -obliged, as far as he can do so without serious danger to his vessel, -his crew, or his passengers, to lend assistance to any person, even an -enemy, found at sea in danger of perishing. The owner of the vessel -shall not be liable for violations of the foregoing provision."] - - -V - -PIRACY - - Hall, §§ 81-82--Westlake, I. pp. 177-182--Lawrence, § - 102--Phillimore, I. §§ 356-361--Twiss, I. §§ 177 and 193--Halleck, - I. pp. 444-450--Taylor, §§ 188-189--Walker, § 21--Westlake, I. pp. - 177-182--Wheaton, §§ 122-124--Moore, II. §§ 311-315--Bluntschli, - §§ 343-350--Heffter, § 104--Gareis in Holtzendorff, II. pp. - 571-581--Gareis, § 58--Liszt, § 26--Ullmann, § 104--Bonfils, Nos. - 592-594--Despagnet, Nos. 431-433--Mérignhac, II. pp. - 506-511--Pradier-Fodéré, V. Nos. 2491-2515--Rivier, I. pp. - 248-251--Calvo, I. §§ 485-512--Fiore, I. Nos. 494-495, and Code, - Nos. 295-300--Perels, §§ 16-17--Testa, pp. 90-97--Ortolan, - "Diplomatie de la mer" (1856), I. pp. 231-253--Stiel, "Der - Thatbestand der Piraterie" (1905). - -[Sidenote: Conception of Piracy.] - -§ 272. Piracy, in its original and strict meaning, is every unauthorised -act of violence committed by a private vessel on the Open Sea against -another vessel with intent to plunder (_animo furandi_). The majority of -writers confine piracy to such acts, which indeed are the normal cases -of piracy. But there are cases possible which are not covered by this -narrow definition, and yet they are practically treated as though they -were cases of piracy. Thus, if the members of the crew revolt and -convert the ship and the goods thereon to their own use, they are -considered to be pirates, although they have not committed an act of -violence against another ship. Thus, secondly, if unauthorised acts of -violence, such as murder of persons on board the attacked vessel or -destruction of goods thereon, are committed on the Open Sea without -intent to plunder, such acts are practically considered to be piratical. -Under these circumstances several writers,[550] correctly, I think, -oppose the usual definition of piracy as an act of violence committed by -a private vessel against another with intent to plunder. But no -unanimity exists among these very writers concerning a fit definition of -piracy, and the matter is therefore very controversial. If a definition -is desired which really covers all such acts as are practically treated -as piratical, piracy must be defined as _every unauthorised act of -violence against persons or goods committed on the Open Sea either by a -private vessel against another vessel or by the mutinous crew or -passengers against their own vessel_.[551] - -[Footnote 550: Hall, § 81; Lawrence, § 102; Bluntschli, § 343; Liszt, § -26; Calvo, § 485.] - -[Footnote 551: The conception of Piracy is discussed in the case of the -Republic of Bolivia _v._ The Indemnity Mutual Marine Assurance Co., L.R. -(1909), 1 K.B., 785.] - -Already, before a Law of Nations in the modern sense of the term was in -existence, a pirate was considered an outlaw, a "hostis humani generis." -According to the Law of Nations the act of piracy makes the pirate lose -the protection of his home State, and thereby his national character; -and his vessel, although she may formerly have possessed a claim to sail -under a certain State's flag, loses such claim. Piracy is a so-called -"international crime";[552] the pirate is considered the enemy of every -State, and can be brought to justice anywhere. - -[Footnote 552: See above, § 151.] - -[Sidenote: Private Ships as Subjects of Piracy.] - -§ 273. Private vessels only[553] can commit piracy. A man-of-war or -other public ship, as long as she remains such, is never a pirate. If -she commits unjustified acts of violence, redress must be asked from her -flag State, which has to punish the commander and to pay damages where -required. But if a man-of-war or other public ship of a State revolts -and cruises the sea for her own purposes, she ceases to be a public -ship, and acts of violence now committed by her are indeed piratical -acts. A _privateer_ is not a pirate as long as her acts of violence are -confined to enemy vessels, because such acts are authorised by the -belligerent in whose services she is acting. And it matters not that the -privateer is originally a neutral vessel.[554] But if a neutral vessel -were to take Letters of Marque from both belligerents, she would be -considered a pirate. - -[Footnote 553: Piracy committed by the mutinous crew will be treated -below, § 274.] - -[Footnote 554: See details regarding this controversial point in Hall, § -81. See also below, vol. II. §§ 83 and 330.] - -Doubtful is the case where a privateer in a civil war has received her -Letters of Marque from the insurgents, and, further, the case where -during a civil war men-of-war join the insurgents before the latter have -been recognised as a belligerent Power. It is evident that the -legitimate Government will treat such ships as pirates; but third Powers -ought not to do so, as long as these vessels do not commit any act of -violence against ships of these third Powers. Thus, in 1873, when an -insurrection broke out in Spain, Spanish men-of-war stationed at -Carthagena fell into the hands of the insurgents, and the Spanish -Government proclaimed these vessels pirates, England, France, and -Germany instructed the commanders of their men-of-war in the -Mediterranean not to interfere as long as these insurgent vessels[555] -abstained from acts of violence against the lives and property of their -subjects.[556] On the other hand, when in 1877 a revolutionary outbreak -occurred at Callao in Peru and the ironclad _Huascar_, which had been -seized by the insurgents, put to sea, stopped British steamers, took a -supply of coal without payment from one of these, and forcibly took two -Peruvian officials from on board another where they were passengers, she -was justly considered a pirate and attacked by the British Admiral de -Horsey, who was in command of the British squadron in the Pacific.[557] - -[Footnote 555: See Calvo, I. §§ 497-501; Hall, § 82; Westlake, I. pp. -179-182.] - -[Footnote 556: But in the American case of the _Ambrose Light_ (25 -Federal 408; see also Moore, II. § 332, p. 1098) the Court did not agree -with this. The _Ambrose Light_ was a brigantine which, when on April 24, -1885, she was sighted by Commander Clark of the U.S.S. _Alliance_ in the -Caribbean Sea, was flying a strange flag showing a red cross on a white -ground, but she afterwards hoisted the Columbian flag; when seized she -was found to carry sixty armed soldiers, one cannon, and a considerable -quantity of ammunition. She bore a commission from Columbian insurgents, -and was designed to assist in the blockade of the port of Carthagena by -the rebels. Commander Clark considered the vessel to be a pirate and -sent her in for condemnation. The Court held that in absence of any -recognition of the Columbian insurgents as a belligerent Power the -_Ambrose Light_ had been lawfully seized as a pirate. The vessel was, -however, nevertheless released because the American Secretary of State -had recognised by implication a state of war between the insurgents and -the legitimate Columbian Government.] - -[Footnote 557: As regards the case of the Argentinian vessel _Porteña_ -and the Spanish vessel _Montezuma_, afterwards called _Cespedes_, see -Calvo, I. §§ 502 and 503.] - -The case must also be mentioned of a privateer or man-of-war which after -the conclusion of peace or the termination of war by subjugation and the -like continues to commit hostile acts. If such vessel is not cognisant -of the fact that the war has come to an end she cannot be considered as -a pirate. Thus the Confederate cruiser _Shenandoah_, which in 1865, for -some months after the end of the American Civil War, attacked American -vessels, was not considered a pirate[558] by the British Government when -her commander gave her up to the port authorities at Liverpool in -November 1865, because he asserted that he had not known till August of -the termination of the war, and that he had abstained from hostilities -as soon as he had obtained this information. - -[Footnote 558: See Lawrence, § 102.] - -It must be emphasised that the motive and the purpose of such acts of -violence do not alter their piratical character, since the intent to -plunder (_animus furandi_) is not required. Thus, for instance, if a -private neutral vessel without Letters of Marque during war out of -hatred of one of the belligerents were to attack and to sink vessels of -such belligerent without plundering at all, she would nevertheless be -considered as a pirate.[559] - -[Footnote 559: This statement is correct in spite of art. 46, No. 1, of -the Declaration of London; see below, vol. II. § 410, No. 1.] - -[Sidenote: Mutinous Crew and Passengers as Subjects of Piracy.] - -§ 274. The crew or the whole or a part of the passengers who revolt on -the Open Sea and convert the vessel and her goods to their own use, -commit thereby piracy, whether the vessel is private or public. But a -simple act of violence alone on the part of crew or passengers does not -constitute in itself the crime of piracy, at least not as far as -International Law is concerned. If, for instance, the crew were to -murder the master on account of his cruelty and afterwards carry on the -voyage, they would be murderers, but not pirates. They are pirates only -when the revolt is directed not merely against the master, but also -against the vessel, for the purpose of converting her and her goods to -their own use. - -[Sidenote: Object of Piracy.] - -§ 275. The object of piracy is any public or private vessel, or the -persons or the goods thereon, whilst on the Open Sea. In the regular -case of piracy the pirate wants to make booty; it is the cargo of the -attacked vessel which is the centre of his interest, and he might free -the vessel and the crew after having appropriated the cargo. But he -remains a pirate whether he does so or kills the crew and appropriates -the ship, or sinks her. On the other hand, it does not matter if the -cargo is not the object of his act of violence. If he stops a vessel and -takes a rich passenger off with the intention to keep him for the -purpose of a high ransom, his act is piracy. It is likewise piracy if he -stops a vessel for the purpose of killing a certain person only on -board, although he may afterwards free vessel, crew, and cargo. - -That a possible object of piracy is not only another vessel, but also -the very ship on which the crew and passenger navigate, is an inference -from the statements above in § 274. - -[Sidenote: Piracy, how effected.] - -§ 276. Piracy is effected by any unauthorised act of violence, be it -direct application of force or intimidation through menace. The crew or -passengers who, for the purpose of converting a vessel and her goods to -their own use, force the master through intimidation to steer another -course, commit piracy as well as those who murder the master and steer -the vessel themselves. And a ship which, through the threat to sink her -if she should refuse, forces another ship to deliver up her cargo or a -person on board, commits piracy as well as the ship which attacks -another vessel, kills her crew, and thereby gets hold of her cargo or a -person on board. - -The act of violence need not be consummated to constitute the crime of -piracy. The mere attempt, such as attacking or even chasing only for the -purpose of attack, by itself comprises piracy. On the other hand, it is -doubtful whether persons cruising in armed vessels with the intention of -committing piracies are liable to be treated as pirates before they have -committed a single act of violence.[560] - -[Footnote 560: See Stephen, "Digest of the Criminal Law," article 104. -In the case of the _Ambrose Light_--see above, § 273--the Court -considered the vessel to be a pirate, although no attempt to commit a -piratical act had been made by her.] - -[Sidenote: Where Piracy can be committed.] - -§ 277. Piracy as an "international crime" can be committed on the Open -Sea only. Piracy in territorial coast waters has quite as little to do -with International Law as other robberies on the territory of a State. -Some writers[561] maintain that piracy need not necessarily be committed -on the Open Sea, but that it suffices that the respective acts of -violence are committed by descent from the Open Sea. They maintain, -therefore, that if "a body of pirates land on an island unappropriated -by a civilised Power, and rob and murder a trader who may be carrying on -commerce there with the savage inhabitants, they are guilty of a crime -possessing all the marks of commonplace professional piracy." With this -opinion I cannot agree. Piracy is, and always has been, a crime against -the safety of traffic on the Open Sea, and therefore it cannot be -committed anywhere else than on the Open Sea. - -[Footnote 561: Hall, § 81; Lawrence, § 102; Westlake, I. p. 177.] - -[Sidenote: Jurisdiction over Pirates, and their Punishment.] - -§ 278. A pirate and his vessel lose _ipso facto_ by an act of piracy the -protection of their flag State and their national character. Every -maritime State has by a customary rule of the Law of Nations the right -to punish pirates. And the vessels of all nations, whether men-of-war, -other public vessels, or merchantmen,[562] can on the Open Sea[563] -chase, attack, seize, and bring the pirate home for trial and punishment -by the Courts of their own country. In former times it was said to be a -customary rule of International Law that pirates could at once after -seizure be hanged or drowned by the captor. But this cannot now be -upheld, although some writers assert that it is still the law. It would -seem that the captor may execute pirates on the spot only when he is not -able to bring them safely into a port for trial; but Municipal Law may, -of course, interdict such execution. Concerning the punishment for -piracy, the Law of Nations lays down the rule that it may be capital. -But it need not be, the Municipal Law of the different States being -competent to order any less severe punishment. Nor does the Law of -Nations make it a duty for every maritime State to punish all -pirates.[564] - -[Footnote 562: A few writers (Gareis in Holtzendorff, II. p 575; Liszt, -§ 26; Ullmann, § 104; Stiel, _op. cit._, p. 51) maintain, however, that -men-of-war only have the power to seize the pirate.] - -[Footnote 563: If a pirate is chased on the Open Sea and flees into the -territorial maritime belt, the pursuers may follow, attack, and arrest -the pirate there; but they must give him up to the authorities of the -littoral State.] - -[Footnote 564: Thus, according to the German Criminal Code, piracy -committed by foreigners against foreign vessels cannot be punished by -German Courts (see Perels, § 17). From article 104 of Stephen's "Digest -of the Criminal Law," there seems to be no doubt that, according to -English Law, all pirates are liable to be punished. See Stiel, _op. -cit._, p. 15, note 4, where a survey is given of the Municipal Law of -many States concerning this point.] - -That men-of-war of all nations have, with a view to insuring the safety -of traffic, the power of verifying the flags of suspicious merchantmen -of all nations, has already been stated above (§ 266, No. 2). - -[Sidenote: _Pirata non mutat dominium._] - -§ 279. The question as to the property in the seized piratical vessels -and the goods thereon has been the subject of much controversy. During -the seventeenth century the practice of several States conceded such -vessel and goods to the captor as a premium. But during the eighteenth -century the rule _pirata non mutat dominium_ became more and more -recognised. Nowadays the conviction would seem to be general that ship -and goods have to be restored to their proprietors, and may be conceded -to the captor only when the real ownership cannot be ascertained. In the -first case, however, a certain percentage of the value is very often -conceded to the captor as a premium and an equivalent for his expenses -(so-called _droit de recousse_[565]). Thus, according to British -Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of -the pirate. - -[Footnote 565: See details regarding the question as to the piratical -vessels and goods in Pradier-Fodéré, V. Nos. 2496-2499.] - -[Footnote 566: See section 5 of the "Act to repeal an Act of the Sixth -Year of King George the Fourth, for encouraging the Capture or -Destruction of Piratical Ships, &c." (13 & 14 Vict. ch. 26).] - -[Sidenote: Piracy according to Municipal Law.] - -§ 280. Piracy, according to the Law of Nations, which has been defined -above (§ 272) as every unauthorised act of violence against persons or -goods committed on the Open Sea either by a private vessel against -another vessel or by the mutinous crew or passengers against their own -vessel, must not be confounded with the conception of piracy according -to the different Municipal Laws.[567] The several States may confine -themselves to punishing as piracy a narrower circle of acts of violence -than that which the Law of Nations defines as piracy. On the other hand, -they may punish their subjects as pirates for a much wider circle of -acts. Thus, for instance, according to the Criminal Law of England,[568] -every English subject is _inter alia_ deemed to be a pirate who gives -aid or comfort upon the sea to the King's enemies during a war, or who -transports slaves on the High Seas. - -[Footnote 567: See Calvo, §§ 488-492; Lawrence, § 103; Pradier-Fodéré, -V. Nos. 2501 and 2502.] - -[Footnote 568: See Stephen, "Digest of the Criminal Law," articles -104-117.] - -However, since a State cannot on the Open Sea enforce its Municipal Laws -against others than its own subjects, no State can treat such foreign -subjects on the Open Sea as pirates as are not pirates according to the -Law of Nations. Thus, when in 1858, before the abolition of slavery in -America, British men-of-war molested American vessels suspected of -carrying slaves, the United States objected and rightly complained.[569] - -[Footnote 569: See Wharton, III. § 327, pp. 142 and 143; Taylor, § 190; -Moore, II. § 310, pp. 941-946.] - - -VI - -FISHERIES IN THE OPEN SEA - - Grotius, II. c. 3, § 4--Vattel, I. § 287--Hall, § 27--Lawrence, §§ - 86 and 91--Phillimore, I. §§ 181-195--Twiss, I. § 185--Taylor, §§ - 249-250--Wharton, II. §§ 300-308--Wheaton, §§ 167-171--Moore, I. - §§ 169-173--Bluntschli, § 307--Stoerk in Holtzendorff, II. pp. - 504-507--Gareis, § 62--Liszt, § 35--Ullmann, § 103--Bonfils, Nos. - 581-582, 595--Despagnet, Nos. 411-413--Mérignhac, II. p. - 531--Pradier-Fodéré, V. Nos. 2446-2458--Rivier, I. pp. - 243-245--Nys, II. pp. 165-169--Calvo, I. §§ 357-364--Fiore, II. - Nos. 728-729, and Code, Nos. 995-999--Martens, I. § 98--Perels, § - 20--Hall, "Foreign Powers and Jurisdiction" (1894), § 107--David, - "La pêche maritime au point de vue international" (1897)--Fulton, - "The Sovereignty of the Seas" (1911), pp. 57-534. - -[Sidenote: Fisheries in the Open Sea free to all Nations.] - -§ 281. Whereas the fisheries in the territorial maritime belt can be -reserved by the littoral State for its own subjects, it is an inference -of the freedom of the Open Sea that the fisheries thereon are open[570] -to vessels of all nations. Since, however, vessels remain whilst on the -Open Sea under the jurisdiction of their flag State, every State -possessing a maritime flag can legislate concerning the exercise of -fisheries on the Open Sea on the part of vessels sailing under its flag. -And for the same reason a State can by an international agreement -renounce its fisheries on certain parts of the Open Sea, and accordingly -interdict its vessels from exercising fisheries there. If certain -circumstances and conditions make it advisable to restrict and regulate -the fisheries on some parts of the Open Sea, the Powers are therefore -able to create restrictions and regulations for that purpose through -international treaties. Such treaties have been concluded--first, with -regard to the fisheries in the North Sea and the suppression of the -liquor trade among the fishing vessels in that Sea; secondly, with -regard to the seal fisheries in the Behring Sea; thirdly, with regard to -the fisheries around the Faröe Islands and Iceland. - -[Footnote 570: Denmark silently, by fishing regulations of 1872, dropped -her claim to an exclusive right of fisheries within twenty miles of the -coast of Iceland; see Hall, § 40, p. 153, note 2. Russia promulgated, in -1911, a statute forbidding the fisheries to foreign vessels within -twelve miles of the shore of the White Sea, but the Powers protested -against this encroachment upon the freedom of the Open Sea; the matter -is still unsettled. - -A case of a particular kind would seem to be the pearl fishery off -Ceylon, which extends to a distance of twenty miles from the shore and -for which regulations exist which are enforced against foreign as well -as British subjects. The claim on which these regulations are based is -one "to the products of certain submerged portions of land which have -been treated from time immemorial by the successive rulers of the island -as subject of property and jurisdiction." See Hall, "Foreign Powers and -Jurisdiction" (1894), p. 243, note 1. See also Westlake, I. p. 186, who -says: "The case of the pearl fishery is peculiar, the pearls being -obtained from the sea bottom by divers, so that it has a physical -connection with the stable element of the locality which is wanting to -the pursuit of fish swimming in the water. When carried on under State -protection, as that off the British island of Ceylon, or that in the -Persian Gulf which is protected by British ships in pursuance of -treaties with certain chiefs of the Arabian mainland, it may be regarded -as an occupation of the bed of the sea. In that character the pearl -fishery will be territorial even though the shallowness of the water may -allow it to be practised beyond the limit which the State in question -generally fixes for the littoral seas, as in the case of Ceylon it is -practised beyond the three miles limit generally recognised by Great -Britain. 'Qui doutera,' says Vattel (I. § 28), 'que les pêcheries de -Bahrein et de Ceylon ne puissent légitimement tomber en propriété?' And -the territorial nature of the industry will carry with it, as being -necessary for its protection, the territorial character of the spot." -This opinion of Westlake coincides with that contended by Great Britain -during the Behring Sea Arbitration; see Parliamentary Papers, United -States, No. 4 (1893) Behring Sea Arbitration, Archives of His Majesty's -Government, pp. 51 and 59. But it is submitted that the bed of the Open -Sea is not a possible object of occupation. The explanation of the pearl -fisheries off Ceylon and in the Persian Gulf being exclusively British -is to be found in the fact that the freedom of the Open Sea was not a -rule of International Law when these fisheries were taken possession of. -See Oppenheim in Z.V. II. (1908), pp. 6-10, and Westlake, I. (2nd ed.), -p. 203.] - -[Sidenote: Fisheries in the North Sea.] - -§ 282. For the purpose of regulating the fisheries in the North Sea, an -International Conference took place at the Hague in 1881 and again in -1882, at which Great Britain, Belgium, Denmark, France, Germany, -Holland, and Sweden-Norway were represented, and on May 6, 1882, the -International Convention for the Regulation of the Police of the -Fisheries in the North Sea outside the territorial waters[571] was -signed by the representatives of all these States, Sweden-Norway -excepted, to which the option of joining later on is given. This treaty -contains the following stipulations:[572]-- - -[Footnote 571: Martens, N.R.G. 2nd Ser. IX. p. 556.] - -[Footnote 572: The matter is exhaustively treated by Rykere, "Le régime -légal de la pêche maritime dans la Mer du Nord" (1901). To carry out the -obligations undertaken by her in the Convention for the regulation of -the fisheries in the North Sea, Great Britain enacted in 1883 the "Act -to carry into effect an International Convention concerning the -Fisheries in the North Sea, and to amend the Laws relating to British -Sea Fisheries" (46 and 47 Vict. ch. 22).] - -(1) All the fishing vessels of the signatory Powers must be registered, -and the registers have to be exchanged between the Powers (article 5). -Every vessel has to bear visibly in white colour on black ground its -number, name, and the name of its harbour (articles 6-11). Every vessel -must bear an official voucher of her nationality (articles 12-13). - -(2) To avoid conflicts between the different fishing vessels, very -minute interdictions and injunctions are provided (articles 14-25). - -(3) The supervision of the fisheries by the fishing vessels of the -signatory Powers is exercised by special cruisers of these Powers -(article 26). With the exception of those contraventions which are -specially enumerated by article 27, all these cruisers are competent to -verify all contraventions committed by the fishing vessels of all the -signatory Powers (article 28). For that purpose they have the right of -visit, search, and arrest (article 29). But a seized fishing vessel is -to be brought into a harbour of her flag State and to be handed over to -the authorities there (article 30). All contraventions are to be tried -by the Courts of the State to which the contravening vessels belong -(article 36); but in cases of a trifling character the matter can be -compromised on the spot by the commanders of the special public cruisers -of the Powers (article 33). - -[Sidenote: Bumboats in the North Sea.] - -§ 283. Connected with the regulation of the fisheries is the abolition -of the liquor trade among the fishing vessels in the North Sea. Since -serious quarrels and difficulties were caused through bumboats and -floating grog-shops selling intoxicating liquors to the fishermen, an -International Conference took place at the Hague in 1886, where the -signatory Powers of the Hague Convention concerning the fisheries in the -North Sea were represented. And on November 16, 1887, the International -Convention concerning the Abolition of the Liquor Traffic among the -fishermen in the North Sea was signed by the representatives of these -Powers--namely, Great Britain, Belgium, Denmark, France, Germany, and -Holland. This treaty[573] was, however, not ratified until 1894, and -France did not ratify it at all. It contains the following -stipulations:[574]-- - -[Footnote 573: See Martens, N.R.G. 2nd Ser. XIV. p. 540, and XXII. p. -563.] - -[Footnote 574: The matter is treated by Guillaume in R.I. XXVI. (1894), -p. 488.] - -It is interdicted to sell spirituous drinks to persons on board of -fishing vessels, and these persons are prohibited from buying such -drinks (article 2). Bumboats, which wish to sell provisions to -fishermen, must be licensed by their flag State and must fly a white -flag[575] with the letter S in black in the middle (article 3). The -special cruisers of the Powers which supervise the fisheries in the -North Sea are likewise competent to supervise the treaty stipulations -concerning bumboats; they have the right to ask for the production of -the proper licence, and eventually the right to arrest the vessel -(article 7). But arrested vessels must always be brought into a harbour -of their flag State, and all contraventions are to be tried by Courts of -the flag State of the contravening vessel (articles 2, 7, 8). - -[Footnote 575: This flag was agreed upon in the Protocol concerning the -ratification of the Convention. (See Martens, N.R.G. 2nd Ser. XXII. p. -565.)] - -[Sidenote: Seal Fisheries in Behring Sea.] - -§ 284. In 1886 a conflict arose between Great Britain and the United -States through the seizure and confiscation of British-Columbian vessels -which had hunted seals in the Behring Sea outside the American -territorial belt, infringing regulations made by the United States -concerning seal fishing in that sea. Great Britain and the United States -concluded an arbitration treaty[576] concerning this conflict in 1892, -according to which the arbitrators should not only settle the dispute -itself, but also (article 7) "determine what concurrent regulations -outside the jurisdictional limits of the respective Governments are -necessary" in the interest of the preservation of the seals. The -Arbitration Tribunal, which assembled and gave its award[577] at Paris -in 1893, imposed the duty upon both parties of forbidding their subjects -to kill seals within a zone of sixty miles around the Pribilof Islands; -the killing of seals at all between May 1 and July 31 each year; -seal-fishing with nets, firearms, and explosives; seal-fishing in other -than specially licensed sailing vessels. Both parties in 1894 carried -out this task imposed upon them.[578] Other maritime Powers were at the -same time asked by the United States to submit voluntarily to the -regulations made for the parties by the arbitrators, but only Italy[579] -has agreed to this. - -[Footnote 576: See Martens, N.R.G. 2nd Ser. XVIII. p. 587.] - -[Footnote 577: See Martens, N.R.G. 2nd Ser. XXI. p. 439. The award is -discussed by Barclay in R.I. XXV. (1893), p. 417, and Engelhardt in R.I. -XXVI. (1894), p. 386, and R.G. V. (1898), pp. 193 and 347. See also -Tillier, "Les Pêcheries de Phoques de la Mer de Behring" (1906), and -Balch, "L'évolution de l'Arbitrage International" (1908), pp. 70-91.] - -[Footnote 578: See the Behring Sea Award Act, 1894 (57 Vict. c. 2).] - -[Footnote 579: See Martens, N.R.G. 2nd Ser. XXII. p. 624.] - -Experience has shown that the provisions made by the Arbitration -Tribunal for the purpose of preventing the extinction of the seals in -the Behring Sea are insufficient. The United States therefore invited -the maritime Powers whose subjects are engaged in the seal fisheries to -a Pelagic Sealing Conference which took place at Washington in 1911, and -produced a convention[580] which was signed on July 7, 1911, by which -the suspension of pelagic sealing for fifteen years was agreed upon. - - [No further details of this Convention are as yet known, and it - has not yet been ratified.] - -[Footnote 580: See below, § 593, No. 2.] - -[Sidenote: Fisheries around the Faröe Islands and Iceland.] - -§ 285. For the purpose of regulating the fisheries outside territorial -waters around the Faröe Islands and Iceland, Great Britain and Denmark -signed on June 24, 1901, the Convention of London,[581] whose -stipulations are for the most part literally the same as those of the -International Convention for the Regulation of the Fisheries in the -North Sea, concluded at the Hague in 1882.[582] The additional article -of this Convention of London stipulates that any other State whose -subjects fish around the Faröe Islands and Iceland may accede to it. - -[Footnote 581: See Martens, N.R.G. 2nd Ser. XXXIII. (1906), p. 268.] - -[Footnote 582: See above, § 282.] - - -VII - -TELEGRAPH CABLES IN THE OPEN SEA - - Bonfils, No. 583--Despagnet, No. 401--Pradier-Fodéré, V. No. - 2548--Mérignhac, II. p. 532--Nys, II. p. 170--Rivier, I. pp. 244 - and 386--Fiore, II. No. 822, and Code, Nos. 1134-1137--Stoerk in - Holtzendorff, II. pp. 507-508--Liszt, § 29--Ullmann, § - 103--Lauterbach, "Die Beschädigung unterseeischer - Telegraphenkabel" (1889)--Landois, "Zur Lehre vom - völkerrechtlichen Schutz der submarinen Telegraphenkabel" - (1894)--Jouhannaud, "Les câbles sous-marins" (1904)--Renault, in - R.I. XII. (1880), p. 251, XV. (1883), p. 17. See also the - literature quoted below, vol. II., at the commencement of § 214. - -[Sidenote: Telegraph cables in the Open Sea admitted.] - -§ 286. It is a consequence of the freedom of the Open Sea that no State -can prevent another from laying telegraph and telephone cables in any -part of the Open Sea, whereas no State need allow this within its -territorial maritime belt. As numerous submarine cables have been laid, -the question as to their protection arose. Already in 1869 the United -States proposed an international convention for this purpose, but the -matter dropped in consequence of the outbreak of the Franco-German war. -The Institute of International Law took up the matter in 1879[583] and -recommended an international agreement. In 1882 France invited the -Powers to an International Conference at Paris for the purpose of -regulating the protection of submarine cables. This conference met in -October 1882, again in October 1883, and produced the "International -Convention for the Protection of Submarine Telegraph Cables" which was -signed at Paris on April 16, 1884.[584] - -[Footnote 583: See Annuaire, III. pp. 351-394.] - -[Footnote 584: See Martens, N.R.G. 2nd Ser. XI. p. 281.] - -The signatory Powers are:--Great Britain, Argentina, Austria-Hungary, -Belgium, Brazil, Colombia, Costa Rica, Denmark, San Domingo, France, -Germany, Greece, Guatemala, Holland, Italy, Persia, Portugal, Roumania, -Russia, Salvador, Servia, Spain, Sweden-Norway, Turkey, the United -States, and Uruguay. Colombia and Persia did not ratify the treaty, but, -on the other hand, Japan acceded to it later on. - -[Sidenote: International Protection of Submarine Telegraph Cables.] - -§ 287. The protection afforded to submarine telegraph cables finds its -expression in the following stipulations of this international treaty:-- - -(1) Intentional or culpably negligent breaking or damaging of a cable in -the Open Sea is to be punished by all the signatory Powers,[585] except -in the case of such damage having been caused in the effort of -self-preservation (article 2). - -[Footnote 585: See the Submarine Telegraph Act, 1885 (48 & 49 Vict. c. -49).] - -(2) Ships within sight of buoys indicating cables which are being laid -or which are damaged must keep at least a quarter of a nautical mile -distant (article 6). - -(3) For dealing with infractions of the interdictions and injunctions of -the treaty the Courts of the flag State of the infringing vessel are -exclusively competent (article 8). - -(4) Men-of-war of all signatory Powers have a right to stop and to -verify the nationality of merchantmen of all nations which are suspected -of having infringed the regulations of the treaty (article 10). - -(5) All stipulations are made for the time of peace only and in no wise -restrict the action of belligerents during time of war.[586] - -[Footnote 586: See below, vol. II. § 214, and art. 54 of the Hague rules -concerning land warfare which enacts:--"Submarine cables connecting a -territory occupied with a neutral territory shall not be seized or -destroyed except in the case of absolute necessity. They also must be -restored and indemnities for them regulated at the peace."] - - -VIII - -WIRELESS TELEGRAPHY ON THE OPEN SEA - - Bonfils, Nos. 531{10, 11}--Despagnet, 433 _quater_--Liszt, § - 29--Ullmann, § 147--Meili, "Die drahtlose Telegraphie, &c." - (1908)--Schneeli, "Drahtlose Telegraphie und Völkerrecht" - (1908)--Landsberg, "Die drahtlose Telegraphie" (1909)--Kausen, - "Die drahtlose Telegraphie im Völkerrecht" (1910)--Rolland in R.G. - XIII. (1906), pp. 58-92--Fauchille in Annuaire, XXI. (1906), pp. - 76-87--Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261. - -[Sidenote: Radio-telegraphy between ships and the shore.] - -§ 287_a_. To secure radio-telegraphic[587] communication between ships -of all nations at sea and the continents, a Conference met at Berlin in -1906, where Great Britain, Germany, the United States of America, -Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Chili, Denmark, -Spain, France, Greece, Italy, Japan, Mexico, Monaco, Norway, Holland, -Persia, Portugal, Roumania, Russia, Sweden, Turkey, and Uruguay were -represented, and where was signed on November 3, 1906, the International -Radio-telegraphic Convention.[588] This Convention, which consists of -twenty-three articles, is accompanied by a Final Protocol, comprising -six important articles, and by Service Regulations, embodying fifty-two -articles. The more important stipulations of the Convention are the -following:--Coast Stations and ships are bound to exchange -radio-telegrams reciprocally without regard to the particular system of -radio-telegraphy adopted by them (article 3). Each of the contracting -parties undertakes to cause its coast stations to be connected with the -telegraph system by means of special wires, or at least to take such -other measures as will ensure an expeditious exchange of traffic between -the coast stations and the telegraph system (article 5). Radio-telegraph -stations are bound to accept with absolute priority calls of distress -from ships, to answer such calls with similar priority, and to take the -necessary steps with regard to them (article 9). An International Bureau -shall be established with the duty of collecting, arranging, and -publishing information of every kind concerning radio-telegraphy, and -for some other purposes mentioned in article 13. - -[Footnote 587: See above, § 173, and below, §§ 464 and 582, No. 4.] - -[Footnote 588: See Martens, N.R.G. 3rd Ser. III. (1910), p. 147. But not -all the signatory Powers have as yet ratified the Convention, -ratification having been given hitherto only by Great Britain, -Austria-Hungary, Belgium, Brazil, Bulgaria, Denmark, France, Germany, -Japan, Mexico, Monaco, Holland, Norway, Portugal, Roumania, Russia, -Spain, Sweden and Turkey; and Tunis acceded to it. Italy has reserved -ratification on account of her relations with the Marconi Wireless -Telegraphy Co.] - -[Sidenote: Radio-telegraphy between ships at sea.] - -§ 287_b_. To secure radio-telegraphic communication between such ships -at sea as possess installations for wireless telegraphy, an Additional -Convention[589] to that mentioned above in § 287_a_ was signed on -November 3, 1906, by all the Powers who signed the forementioned -Convention except by Great Britain, Italy, Japan, Mexico, Persia, and -Portugal. According to this additional Convention all ships at sea which -possess radio-telegraphic installations are compelled to exchange -radio-telegrams reciprocally at all times without regard to the -particular system of radio-telegraphy adopted. - -[Footnote 589: See Martens, N.R.G. 3rd Ser. III. (1910), p. 158. But -this Convention likewise has not yet been ratified by all the signatory -Powers.] - -It is to be hoped that in time all the Powers will accede to this -Additional Convention, for its stipulation is of great importance in -cases of shipwreck. If ships at sea can refuse to exchange -radio-telegrams, it is impossible for them to render one another -assistance. It ought not to be possible for the following case[590] to -occur, to which attention was drawn at the Berlin Conference by the -delegate of the United States of America:--The American steamer -_Lebanon_ had received orders to search the Atlantic for a wrecked -vessel which offered great danger to navigation. The _Lebanon_ came -within communicating reach of the liner _Vaderland_, and inquired by -wireless telegraphy whether the _Vaderland_ had seen the wreck. The -_Vaderland_ refused to reply to this question, on the ground that she -was not permitted to enter into communication with a ship provided with -a wireless apparatus other than the Marconi. - -[Footnote 590: See Hazeltine, "The Law of the Air" (1911), p. 101.] - - -IX - -THE SUBSOIL BENEATH THE SEA BED - -[Sidenote: Five rules concerning the subsoil beneath the Sea Bed.] - -§ 287_c_. The subsoil beneath the bed of the Open Sea requires special -consideration on account of coal or other mines, tunnels, and the like, -for the question is whether such buildings can be driven into that -subsoil at all, and, if this can be done, whether they can be under the -territorial supremacy of a particular State. The answer depends entirely -upon the character in law of such subsoil. If the rules concerning the -territorial subsoil[591] would have analogously to be applied to the -subsoil beneath the bed of the Open Sea, all rules concerning the Open -Sea would necessarily have to be applied to the subsoil beneath its bed, -and no part of this subsoil could ever come under the territorial -supremacy of any State. It is, however, submitted[592] that it would not -be rational to consider the subsoil beneath the bed of the Open Sea an -inseparable appurtenance of the latter, such as the subsoil beneath the -territorial land and water is. The rationale of the Open Sea being free -and for ever excluded from occupation on the part of any State is that -it is an international highway which connects distant lands and thereby -secures freedom of communication, and especially of commerce, between -such States as are separated by the sea.[593] There is no reason -whatever for extending this freedom of the Open Sea to the subsoil -beneath its bed. On the contrary, there are practical reasons--taking -into consideration the building of mines, tunnels, and the like--which -compel the recognition of the fact that this subsoil can be acquired -through occupation. The following five rules recommend themselves -concerning this subject:-- - -[Footnote 591: See above, §§ 173, 175.] - -[Footnote 592: See Oppenheim in Z.V. II. (1908), p. 11.] - -[Footnote 593: See above, § 259.] - -(1) The subsoil beneath the bed of the Open Sea is no man's land, and it -can be acquired on the part of a littoral State through occupation, -starting from the subsoil beneath the bed of the territorial maritime -belt. - -(2) This occupation takes place _ipso facto_ by a tunnel or a mine being -driven from the shore through the subsoil of the maritime belt into the -subsoil of the Open Sea. - -(3) This occupation of the subsoil of the Open Sea can be extended up to -the boundary line of the subsoil of the territorial maritime belt of -another State, for no State has an exclusive claim to occupy such part -of the subsoil of the Open Sea as is adjacent to the subsoil of its -territorial maritime belt. - -(4) An occupation of the subsoil beneath the bed of the Open Sea for a -purpose which would endanger the freedom of the Open Sea is -inadmissible. - -(5) It is likewise inadmissible to make such arrangements in a part of -the subsoil beneath the Open Sea which has previously been occupied for -a legitimate purpose as would indirectly endanger the freedom of the -Open Sea. - -If these five rules are correct, there is nothing in the way of coal and -other mines which are being exploited on the shore of a littoral State -being extended into the subsoil beneath the Open Sea up to the boundary -line of the subsoil beneath the territorial maritime belt of another -State. Further, a tunnel which might be built between such two parts of -the same State--for instance, between Ireland and Scotland--as are -separated by the Open Sea would fall entirely under the territorial -supremacy of the State concerned. On the other hand, for a tunnel -between two different States separated by the Open Sea special -arrangements by treaty would have to be made concerning the territorial -supremacy over that part of the tunnel which runs under the bed of the -Open Sea. - -[Sidenote: The proposed Channel Tunnel.] - -§ 287_d_. Since there is as yet no submarine tunnel in existence, it is -of interest to give some details concerning the project of a Channel -Tunnel[594] between Dover and Calais, and the preliminary arrangements -between France and England concerning it. Already some years before the -Franco-German War the possibility of such a tunnel was discussed, but it -was not until 1874 that the first preliminary steps were taken. The -subsoil of the Channel was geologically explored, plans were worked out, -and a shaft of more than a mile long was tentatively bored from the -English shore. And in 1876 an International Commission, appointed by the -English and French Governments, and comprising three French and three -English members, made a report on the construction and working of the -proposed tunnel.[595] The report enclosed a memorandum, recommended by -the Commissioners to be adopted as the basis of a treaty between Great -Britain and France concerning the tunnel, the juridically important -articles of which are the following:-- - -[Footnote 594: See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G. -XV. (1908), pp. 50-77; and Liszt, § 26.] - -[Footnote 595: See Parliamentary Papers, C. 1576, Report of the -Commissioners for the Channel Tunnel and Railway, 1876.] - -(Article 1) The boundary between England and France in the tunnel shall -be half-way between low-water mark (above the tunnel) on the coast of -England, and low-water mark (above the tunnel) on the coast of France. -The said boundary shall be ascertained and marked out under the -direction of the International Commission to be appointed, as mentioned -in article 4, before the Submarine Railway is opened for public traffic. -The definition of boundary provided for by this article shall have -reference to the tunnel and Submarine Railway only, and shall not in any -way affect any question of the nationality of, or any rights of -navigation, fishing, anchoring, or other rights in, the sea above the -tunnel, or elsewhere than in the tunnel itself. - -(Article 4) There shall be constituted an International Commission to -consist of six members, three of whom shall be nominated by the British -Government and three by the French Government.... - - * * * * * - -The International Commission shall ... submit to the two Governments its -proposals for Supplementary Conventions with respect--(_a_) to the -apprehension and trial of alleged criminals for offences committed in -the tunnel or in trains which have passed through it, and the summoning -of witnesses; (_b_) to customs, police, and postal arrangements, and -other matters which it may be found convenient so to deal with. - -(Article 15) Each Government shall have the right to suspend the working -of the Submarine Railway and the passage through the tunnel whenever -such Government shall, in the interest of its own country, think -necessary to do so. And each Government shall have power, to be -exercised if and when such Government may deem it necessary, to damage -or destroy[596] the works of the tunnel or Submarine Railway, or any -part of them, in the territory of such Government, and also to flood the -tunnel with water. - -[Footnote 596: This stipulation was proposed in the interest of defence -in time of war. As regards the position of a Channel Tunnel in time of -war, see Oppenheim in Z.V. II. (1908), pp. 13-16.] - -In spite of this elaborate preparation the project could not be -realised, since public opinion in England was for political reasons -opposed to it. And although several times since--in 1880, 1884, 1888, -and 1908--steps were again taken in favour of the proposed tunnel, -public opinion in England remained hostile and the project has had for -the time to be abandoned. It is, however, to be hoped and expected that -ultimately the tunnel will be built when the political conditions which -are now standing in the way of its realisation have undergone a change. - - - - -CHAPTER III - -INDIVIDUALS - - -I - -POSITION OF INDIVIDUALS IN INTERNATIONAL LAW - - Lawrence, § 42--Taylor, § 171--Heffter, § 58--Stoerk in - Holtzendorff, II. pp. 585-592--Gareis, § 53--Liszt, §§ 5 and - 11--Ullmann, § 107--Bonfils, Nos. 397-409--Despagnet, No. - 328--Mérignhac, II. pp. 169-172--Pradier-Fodéré, I. Nos. - 43-49--Fiore, II. Nos. 568-712--Martens, I. §§ 85-86--Jellinek, - "System der subjectiven öffentlichen Rechte" (1892), pp. - 310-314--Heilborn, "System," pp. 58-138--Kaufmann, "Die - Rechtskraft des Internationalen Rechtes" (1899)--Buonvino, - "Diritto e personalità giuridica internazionale" (1910)--Rehm and - Adler in Z.V. II. (1908), pp. 53-55 and 614-618--Kohler in Z.V. - III. (1909), pp. 209-230--Diena in R.G. XVI. (1909), pp. 57-76. - -[Sidenote: Importance of Individuals to the Law of Nations.] - -§ 288. The importance of individuals to the Law of Nations is just as -great as that of territory, for individuals are the personal basis of -every State. Just as a State cannot exist without a territory, so it -cannot exist without a multitude of individuals who are its subjects and -who, as a body, form the people or the nation. The individuals belonging -to a State can and do come in various ways in contact with foreign -States in time of peace as well as of war. The Law of Nations is -therefore compelled to provide certain rules regarding individuals. - -[Sidenote: Individuals never Subjects of the Law of Nations.] - -§ 289. Now, what is the position of individuals in International Law -according to these rules? Since the Law of Nations is a law between -States only and exclusively, States only and exclusively[597] are -subjects of the Law of Nations. How is it, then, that, although -individuals are not subjects of the Law of Nations, they have certain -rights and duties in conformity with or according to International Law? -Have not monarchs and other heads of States, diplomatic envoys, and even -simple citizens certain rights according to the Law of Nations whilst on -foreign territory? If we look more closely into these rights, it becomes -quite obvious that they are not given to the favoured individual by the -Law of Nations directly. For how could International Law, which is a law -between States, give rights to individuals concerning their relations to -a State? What the Law of Nations really does concerning individuals, is -to impose the duty upon all the members of the Family of Nations to -grant certain privileges to such foreign heads of States and diplomatic -envoys, and certain rights to such foreign citizens as are on their -territory. And, corresponding to this duty, every State has by the Law -of Nations a right to demand that its head, its diplomatic envoys, and -its simple citizens be granted certain rights by foreign States when on -their territory. Foreign States granting these rights to foreign -individuals do this by their Municipal Laws, and these rights are, -therefore, not international rights, but rights derived from Municipal -Laws. International Law is indeed the background of these rights in so -far as the duty to grant them is imposed upon the single States by -International Law. It is therefore quite correct to say that the -individuals have these rights in conformity with or according to -International Law, if it is only remembered that these rights would not -exist had the single States not created them by their Municipal Law. - -[Footnote 597: See above, §§ 13 and 63.] - -And the same is valid as regards special rights of individuals in -foreign countries according to special international treaties between -two or more Powers. Although such treaties mostly speak of rights which -individuals shall have as derived from the treaties themselves, this is -nothing more than an inaccuracy of language. In fact, such treaties do -not create these rights, but they impose the duty upon the contracting -States of calling these rights into existence by their Municipal -Laws.[598] - -[Footnote 598: The whole matter is treated with great lucidity by -Jellinek, "System der subjectiven öffentlichen Rechte" (1892), pp. -310-314, and Heilborn, "System," pp. 58-138.] - -Again, in those rare cases in which States stipulate by international -treaties certain favours for individuals other than their own subjects, -these individuals do not acquire any international rights under these -treaties. The latter impose the duty only upon the State whose subjects -these individuals are of calling those favours into existence by its -Municipal Law. Thus, for example, when articles 5, 25, 35, and 44 of the -Treaty of Berlin, 1878, made it a condition of the recognition of -Bulgaria, Montenegro, Servia, and Roumania, that these States should not -impose any religious disability upon their subjects, the latter did not -thereby acquire any international rights. Another instructive -example[599] is furnished by article 5 of the Peace Treaty of Prague, -1866, between Prussia and Austria, which stipulated that the northern -district of Schleswig should be ceded by Prussia to Denmark in case the -inhabitants should by a plebiscite vote in favour of such cession. -Austria, no doubt, intended to secure by this stipulation for the -inhabitants of North Schleswig the opportunity of voting in favour of -their union with Denmark. But these inhabitants did not thereby acquire -any international right. Austria herself acquired only a right to insist -upon Prussia granting to the inhabitants the opportunity of voting for -the union with Denmark. Prussia, however, intentionally neglected her -duty, Austria did not insist upon her right, and finally relinquished it -by the Treaty of Vienna of 1878.[600] - -[Footnote 599: See Heilborn, "System," p. 67.] - -[Footnote 600: It ought to be mentioned that the opinion presented in -the text concerning the impossibility for individuals to be subjects of -International Law, which is now mostly upheld, is vigorously opposed by -Kaufmann, "Die Rechtskraft des internationalen Rechtes" (1899), §§ 1-4, -and a few others.] - -Now it is maintained[601] that, although individuals cannot be subjects -of International Law, they can nevertheless acquire rights and duties -from International Law. But it is impossible to find a basis for the -existence of such rights and duties. International rights and duties -they cannot be, for international rights and duties can only exist -between States. Likewise they cannot be municipal rights, for municipal -rights and duties can only be created by Municipal Law. The opponents -answer that such rights and duties nevertheless exist, and quote for -example articles 4 and 5 of Convention XII. (concerning the -establishment of an International Prize Court) of the second Hague Peace -Conference, according to which individuals have a right to bring an -appeal before the International Prize Court. But is this a real right? -Is it not more correct to say that the home States of the individuals -concerned have a right to demand that these individuals can bring the -appeal before the Court? Wherever International Law creates an -independent organisation, such as the International Prize Court at the -Hague or the European Danube Commission and the like, certain powers and -claims must be given to the Courts and Commissions and the individuals -concerned, but these powers and claims, and the obligations deriving -therefrom, are neither international nor municipal rights and duties: -they are powers, claims, and obligations existing only within the -organisations concerned. To call them rights and duties--as indeed the -respective treaties frequently do--is a laxity of language which is -quite tolerable as long as one remembers that they neither comprise any -relations between States nor any claims and obligations within the -province of Municipal Law. - -[Footnote 601: See Diena in R.G. XVI. (1909), pp. 57-76; Rehm and Adler -in Z.V. I. (1908), pp. 53 and 614; Liszt, § 5; Kohler in Z.V. II. -(1909), pp. 209-230.] - -[Sidenote: Individuals Objects of the Law of Nations.] - -§ 290. But what is the real position of individuals in International -Law, if they are not subjects thereof? The answer can only be that they -are _objects_ of the Law of Nations. They appear as such from many -different points of view. When, for instance, the Law of Nations -recognises the personal supremacy of every State over its subjects at -home and abroad, these individuals appear just as much objects of the -Law of Nations as the territory of the States does in consequence of the -recognised territorial supremacy of the States. When, secondly, the -recognised territorial supremacy of every State comprises certain powers -over foreign subjects within its boundaries without their home State's -having a right to interfere, these individuals appear again as objects -of the Law of Nations. And, thirdly, when according to the Law of -Nations any State may seize and punish foreign pirates on the Open Sea, -or when belligerents may seize and punish neutral blockade-runners and -carriers of contraband on the Open Sea without their home State's having -a right to interfere, individuals appear here too as objects of the Law -of Nations.[602] - -[Footnote 602: Westlake, Chapters, p. 2, maintains that in these cases -individuals appear as _subjects_ of International Law; but I cannot -understand upon what argument this assertion is based. The correct -standpoint is taken up by Lorimer, II. p. 131, and Holland, -"Jurisprudence," p. 341.] - -[Sidenote: Nationality the Link between Individuals and the Law of -Nations.] - -§ 291. If, as stated, individuals are never subjects but always objects -of the Law of Nations, then nationality is the link between this law and -individuals. It is through the medium of their nationality only that -individuals can enjoy benefits from the existence of the Law of Nations. -This is a fact which has its consequences over the whole area of -International Law.[603] Such individuals as do not possess any -nationality enjoy no protection whatever, and if they are aggrieved by a -State they have no way of redress, there being no State which would be -competent to take their case in hand. As far as the Law of Nations is -concerned, apart from morality, there is no restriction whatever to -cause a State to abstain from maltreating to any extent such stateless -individuals.[604] On the other hand, if individuals who possess -nationality are wronged abroad, it is their home State only and -exclusively which has a right to ask for redress, and these individuals -themselves have no such right. It is for this reason that the question -of nationality is a very important one for the Law of Nations, and that -individuals enjoy benefits from this law not as human beings but as -subjects of such States as are members of the Family of Nations. And so -distinct is the position as subjects of these members from the position -of stateless individuals and from subjects of States outside the Family -of Nations, that it has been correctly characterised as a kind of -international "indigenousness," a _Völkerrechts-Indigenat_.[605] Just as -municipal citizenship procures for an individual the enjoyment of the -benefits of the Municipal Laws, so this international "indigenousness," -which is a necessary inference from municipal citizenship, procures the -enjoyment of the benefits of the Law of Nations. - -[Footnote 603: See below, § 294.] - -[Footnote 604: See below, § 312.] - -[Footnote 605: See Stoerk in Holtzendorff, II. p. 588.] - -[Sidenote: The Law of Nations and the Rights of Mankind.] - -§ 292. Several writers[606] maintain that the Law of Nations guarantees -to every individual at home and abroad the so-called rights of mankind, -without regarding whether an individual be stateless or not, or whether -he be a subject of a member-State of the Family of Nations or not. Such -rights are said to comprise the right of existence, the right to -protection of honour, life, health, liberty, and property, the right of -practising any religion one likes, the right of emigration, and the -like. But such rights do not in fact enjoy any guarantee whatever from -the Law of Nations,[607] and they cannot enjoy such guarantee, since the -Law of Nations is a law between States, and since individuals cannot be -subjects of this law. But there are certain facts which cannot be denied -at the background of this erroneous opinion. The Law of Nations is a -product of Christian civilisation and represents a legal order which -binds States, chiefly Christian, into a community. It is therefore no -wonder that ethical ideas which are some of them the basis of, others a -development from, Christian morals, have a tendency to require the help -of International Law for their realisation. When the Powers stipulated -at the Berlin Congress of 1878 that the Balkan States should be -recognised only under the condition that they did not impose any -religious disabilities on their subjects, they lent their arm to the -realisation of such an idea. Again, when the Powers after the beginning -of the nineteenth century agreed to several international arrangements -in the interest of the abolition of the slave trade,[608] they fostered -the realisation of another of these ideas. And the innumerable treaties -between the different States as regards extradition of criminals, -commerce, navigation, copyright, and the like, are inspired by the idea -of affording ample protection to life, health, and property of -individuals. Lastly, there is no doubt that, should a State venture to -treat its own subjects or a part thereof with such cruelty as would -stagger humanity, public opinion of the rest of the world would call -upon the Powers to exercise intervention[609] for the purpose of -compelling such State to establish a legal order of things within its -boundaries sufficient to guarantee to its citizens an existence more -adequate to the ideas of modern civilisation. However, a guarantee of -the so-called rights of mankind cannot be found in all these and other -facts. Nor do the actual conditions of life to which certain classes of -subjects are forcibly submitted within certain States show that the Law -of Nations really comprises such guarantee.[610] - -[Footnote 606: Bluntschli, §§ 360-363 and 370; Martens, I. §§ 85 and 86; -Fiore, I. Nos. 684-712, and Code, Nos. 614-669; Bonfils, No. 397, and -others.] - -[Footnote 607: The matter is treated with great lucidity by Heilborn, -"System," pp. 83-138.] - -[Footnote 608: It is incorrect to maintain that the Law of Nations has -abolished slavery, but there is no doubt that the conventional Law of -Nations has tried to abolish the slave trade. Three important general -treaties have been concluded for that purpose during the nineteenth -century, since the Vienna Congress--namely, (1) the Treaty of London, -1841, between Great Britain, Austria, France, Prussia, and Russia; (2) -the General Act of the Congo Conference of Berlin, 1885, whose article 9 -deals with the slave trade; (3) the General Act of the anti-slavery -Conference of Brussels, 1890, which is signed by Great Britain, -Austria-Hungary, Belgium, the Congo Free State, Denmark, France, (see, -however, below, § 517), Germany, Holland, Italy, Luxemburg, Persia, -Portugal, Russia, Spain, Sweden, Norway, the United States, Turkey, and -Zanzibar. See Queneuil, "De la traite des noirs et de l'esclavage" -(1907).] - -[Footnote 609: See above, § 137.] - -[Footnote 610: The reader may think of the sad position of the Jews -within the Russian Empire. The treatment of the native Jews in Roumania, -although the Powers have, according to the spirit of article 44 of the -Treaty of Berlin of 1878, a right of intervention, shows even more -clearly that the Law of Nations does not guarantee what are called -rights of mankind. See below, § 312.] - - -II - -NATIONALITY - - Vattel, I. §§ 220-226--Hall, §§ 66 and 87--Westlake, I. pp. 213, - 231-233--Halleck, I. p. 401--Taylor, §§ 172-178--Moore, III. §§ - 372-376--Bluntschli, §§ 364-380--Stoerk in Holtzendorff, II. pp. - 630-650--Gareis, § 54--Liszt, § 11--Ullmann, § 108--Bonfils, Nos. - 433-454--Despagnet, Nos. 329-333--Pradier-Fodéré, III. No. - 1645--Rivier, I. p. 303--Nys, II. pp. 214-220, 229-237--Calvo, II. - §§ 539-540--Fiore, I. Nos. 644-658, 684-717, and Code, Nos. - 638-641--Martens, I. §§ 85-87--Hall, "Foreign Powers and - Jurisdiction" (1894), § 14--Cogordan, "La nationalité au point de - vue des rapports internationaux" (2nd ed. 1890)--Gargas in Z.V. V. - (1911), pp. 278-316 and [...] - -[Sidenote: Conception of Nationality.] - -§ 293. Nationality of an individual is his quality of being a subject of -a certain State and therefore its citizen. It is not for International -but for Municipal Law to determine who is and who is not to be -considered a subject. And therefore it matters not, as far as the Law of -Nations is concerned, that Municipal Laws may distinguish between -different kinds of subjects--for instance, those who enjoy full -political rights and are on that account named citizens, and those who -are less favoured and are on that account not named citizens. Nor does -it matter that according to the Municipal Laws a person may be a subject -of a part of a State, for instance of a colony, but not a subject of the -mother-country, provided only such person appears as a subject of the -mother-country as far as the latter's international relations are -concerned. Thus, a person naturalised in a British Colony is for all -international purposes a British subject, although he may not have the -rights of a British subject within the United Kingdom itself.[611] For -all international purposes, all distinctions made by Municipal Laws -between subjects and citizens and between different kinds of subjects -have neither theoretical nor practical value, and the terms "subject" -and "citizen" are, therefore, synonymously made use of in the theory and -practice of International Law. - -[Footnote 611: See below, § 307, and Hall, "Foreign Powers and -Jurisdiction," § 20, who quotes, however, a decision of the French Cour -de Cassation according to which naturalisation in a British Colony does -not constitute a real naturalisation. But this decision is based on the -Code Civil of France and has nothing to do with the Law of Nations. See -also Westlake, I. pp. 231-233.] - -But it must be emphasised that nationality as citizenship of a certain -State must not be confounded with nationality as membership of a certain -nation in the sense of a race. Thus, all Englishmen, Scotchmen, and -Irishmen are, despite their different nationality as regards their race, -of British nationality as regards their citizenship. Thus, further, -although all Polish individuals are of Polish nationality _qua_ race, -they have been, since the partition of Poland at the end of the -eighteenth century between Russia, Austria, and Prussia, either of -Russian, Austrian, or German nationality _qua_ citizenship. - -[Sidenote: Function of Nationality.] - -§ 294. It will be remembered that nationality is the link between -individuals and the benefits of the Law of Nations.[612] This function -of nationality becomes apparent with regard to individuals abroad, or -property abroad of individuals who themselves are within the territory -of their home State. Through one particular right and one particular -duty of every State towards all other States this function of -nationality becomes most conspicuous. The right is that of protection -over its citizens abroad which every State holds and occasionally -vigorously exercises towards other States; it will be discussed in -detail below, § 319. The duty, on the other hand, is that of receiving -on its territory such citizens as are not allowed to remain[613] on the -territory of other States. Since no State is obliged by the Law of -Nations to allow foreigners to remain within its boundaries, it may, for -many reasons, happen that certain individuals are expelled from all -foreign countries. The home State of those expelled cannot refuse to -receive them on the home territory, the expelling States having a claim -on the home State that the latter do receive the expelled -individuals.[614] - -[Footnote 612: See above, § 291.] - -[Footnote 613: See below, § 326.] - -[Footnote 614: Beyond the right of protection and the duty to receive -expelled citizens at home, the powers of a State over its citizens -abroad in consequence of its personal supremacy illustrate the function -of nationality. (See above, § 124.) Thus, the home State can tax -citizens living abroad in the interest of home finance, can request them -to come home for the purpose of rendering military service, can punish -them for crimes committed abroad, can categorically request them to come -home for good (so-called _jus avocandi_). And no State has a right -forcibly to retain foreign citizens called home by their home State, or -to prevent them from paying taxes to their home State, and the like.] - -[Sidenote: So-called _Protégés_ and _de facto_ Subjects.] - -§ 295. Although nationality alone is the regular means through which -individuals can derive benefit from the Law of Nations, there are two -exceptional cases in which individuals may come under the international -protection of a State without these individuals being really its -subjects. It happens, first, that a State undertakes by an international -agreement the diplomatic protection of another State's citizens abroad, -and in this case the protected foreign subjects are named "_protégés_" -of the protecting States. Such agreements are either concluded for a -permanency as in the case of a small State, Switzerland for instance, -having no diplomatic envoy in a certain foreign country where many of -its subjects reside, or in time of war only, a belligerent handing over -the protection of its subjects in the enemy State to a neutral State. - -It happens, secondly, that a State promises diplomatic protection within -the boundaries of Turkey and other Oriental countries to certain -natives. Such protected natives are likewise named _protégés_, but they -are also called "_de facto_ subjects" of the protecting State. The -position of these _protégés_ is quite anomalous, it is based on custom -and treaties, and no special rules of the Law of Nations itself are in -existence concerning such _de facto_ subjects. Every State which takes -such _de facto_ subjects under its protection can act according to its -discretion, and there is no doubt that as soon as these Oriental States -have reached a level of civilisation equal to that of the Western -members of the Family of Nations, the whole institution of the _de -facto_ subjects will disappear. - -Concerning the exercise of protection in Morocco, a treaty[615] was -concluded at Madrid on July 3, 1880, signed by Morocco, Great Britain, -Austria-Hungary, Belgium, France, Germany, Holland, Italy, Portugal, -Spain, Sweden-Norway, and the United States of America, which sanctions -the stipulations of the treaty of 1863 between France and Morocco -concerning the same subject. According to this treaty the term -"_protégé_" embraces[616] in relation to States of Capitulations only -the following classes of persons:--(1) Persons being subjects of a -country which is under the protectorate of the Power whose protection -they claim; (2) individuals corresponding to the classes enumerated in -the treaties with Morocco of 1863 and 1880 and in the Ottoman law of -1863; (3) persons, who under a special treaty have been recognised as -_protégés_ like those enumerated by article 4 of the French Muscat -Convention of 1844; and (4) those individuals who can establish that -they had been considered and treated as _protégés_ by the Power in -question before the year in which the creation of new _protégés_ was -regulated and limited--that is to say, before the year 1863, these -individuals not having lost the _status_ they had once legitimately -acquired. - -[Footnote 615: See Martens, N.R.G. 2nd Ser. VI. (1881), p. 624.] - -[Footnote 616: See p. 56 of the official publication of the Award, given -in 1905, of the Hague Court of Arbitration in the case of France _v._ -Great Britain concerning the Muscat Dhows. - -It is of interest to note that the Court considers it a fact that the -Powers have no longer the right to create _protégés_ in unlimited -numbers in any of the Oriental States, for the Award states on p. -56:--"Although the Powers have _expressis verbis_ resigned the exercise -of the pretended right to create '_protégés_' in unlimited number only -in relation to Turkey and Morocco, nevertheless the exercise of this -pretended right has been abandoned also in relation to other Oriental -States, analogy having always been recognised as a means to complete the -very deficient written regulations of the capitulations as far as -circumstances are analogous."] - -[Sidenote: Nationality and Emigration.] - -§ 296. As emigration comprises the voluntary removal of an individual -from his home State with the intention of residing abroad, but not -necessarily with the intention of renouncing his nationality, it is -obvious that emigrants may well retain their nationality. Emigration is -in fact entirely a matter of internal legislation of the different -States. Every State can fix for itself the conditions under which -emigrants lose or retain their nationality, as it can also prohibit -emigration altogether, or can at any moment request those who have -emigrated to return to their former home, provided the emigrants have -retained their nationality of birth. And it must be specially emphasised -that the Law of Nations does not and cannot grant a right of emigration -to every individual, although it is frequently maintained that it is a -"natural" right of every individual to emigrate from his own -State.[617] - -[Footnote 617: Attention ought to be drawn to the fact that, to ensure -the protection of the interests of emigrants and immigrants from the -moral, hygienic, and economic view, the Institute of International Law, -at its meeting at Copenhagen in 1897, adopted a body of fourteen -principles concerning emigration under the heading "Voeux relatifs -à la matière de l'émigration"; see Annuaire, XVI. (1897), p. 276. See -also Gargas in Z.V. V. (1911), pp. 278-316.] - - -III - -MODES OF ACQUIRING AND LOSING NATIONALITY - - Vattel, I. §§ 212-219--Hall, §§ 67-72--Westlake, I. pp. - 213-220--Lawrence, §§ 94-95--Halleck, I. pp. 402-418--Moore, III. - §§ 372-473--Taylor, §§ 176-183--Walker, § 19--Bluntschli, §§ - 364-373--Hartmann, § 81--Heffter, § 59--Stoerk in Holtzendorff, - II. pp. 592-630--Gareis, § 55--Liszt, § 11--Ullmann, §§ 110 and - 112--Bonfils, Nos. 417-432--Despagnet, Nos. - 318-327--Pradier-Fodéré, III. Nos. 1646-1691--Rivier, I. pp. - 303-306--Calvo, II. §§ 541-654, VI. §§ 92-117--Martens, II. §§ - 44-48--Fiore, Code, Nos. 660-669--Foote, "Private International - Jurisprudence" (3rd ed. 1904), pp. 1-52--Dicey, "Conflict of Laws" - (1896), pp. 173-204--Martitz, "Das Recht der Staatsangehörigkeit - im internationalen Verkehr" (1885)--Cogordan, "La nationalité, &c" - (2nd ed. 1890), pp. 21-116, 317-400--Lapradelle, "De la - nationalité d'origine" (1893)--Berney, "La nationalité à - l'Institut de Droit International" (1897)--Bisocchi, "Acquisto e - perdita della Nazionalità, &c." (1907)--Sieber, "Das - Staatsbürgerrecht in internationalem Verkehr," 2 vols. - (1907)--Lehr, "La nationalité dans les principaux états du globe" - (1909), and in R.I. 2nd Ser. X. (1908), pp. 285, 401, and 525. - - In 1893 the British Government addressed a circular to its - representatives abroad requesting them to send in a report - concerning the laws relating to nationality and naturalisation in - force in the respective foreign countries. These reports have been - collected and presented to Parliament. They are printed in - Martens, N.R.G. 2nd Ser. XIX. pp. 515-760. - -[Sidenote: Five Modes of Acquisition of Nationality.] - -§ 297. Although it is for Municipal Law to determine who is and who is -not a subject of a State, it is nevertheless of interest for the theory -of the Law of Nations to ascertain how nationality can be acquired -according to the Municipal Law of the different States. The reason of -the thing presents five possible modes of acquiring nationality, and, -although no State is obliged to recognise all five, nevertheless all -States practically do recognise them. They are birth, naturalisation, -redintegration, subjugation, and cession. - -[Sidenote: Acquisition of Nationality by Birth.] - -§ 298. The first and chief mode of acquiring nationality is by birth, -for the acquisition of nationality by another mode is exceptional only, -since the vast majority of mankind acquires nationality by birth and -does not change it afterwards. But no uniform rules exist according to -the Municipal Law of the different States concerning this matter. Some -States, as Germany and Austria, have adopted the rule that descent alone -is the decisive factor,[618] so that a child born of their subjects -becomes _ipso facto_ by birth their subject likewise, be the child born -at home or abroad. According to this rule, illegitimate children acquire -the nationality of their mother. Other States, such as Argentina, have -adopted the rule that the territory on which birth occurs is exclusively -the decisive factor.[619] According to this rule every child born on the -territory of such State, whether the parents be citizens or aliens, -becomes a subject of such State, whereas a child born abroad is foreign, -although the parents may be subjects. Again, other States, as Great -Britain[620] and the United States, have adopted a mixed principle, -since, according to their Municipal Law, not only children of their -subjects born at home or abroad become their subjects, but also such -children of alien parents as are born on their territory. - -[Footnote 618: _Jus sanguinis._] - -[Footnote 619: _Jus soli._] - -[Footnote 620: See details concerning British law on this point in Hall, -"Foreign Powers and Jurisdiction" (1894), § 14.] - -[Sidenote: Acquisition of Nationality through Naturalisation.] - -§ 299. The most important mode of acquiring nationality besides birth is -that of naturalisation in the wider sense of the term. Through -naturalisation an alien by birth acquires the nationality of the -naturalising State. According to the Municipal Law of the different -States naturalisation may take place through six different acts--namely, -marriage, legitimation, option, acquisition of domicile, appointment as -Government official, grant on application. Thus, according to the -Municipal Law of most States, an alien female marrying a subject of such -State becomes thereby _ipso facto_ naturalised. Thus, further, according -to the Municipal Law of several States, an illegitimate child born of an -alien mother, and therefore an alien himself, becomes _ipso facto_ -naturalised through the father marrying the mother and thereby -legitimating the child.[621] Thus, thirdly, according to the Municipal -Law of some States, which declare children of foreign parents born on -their territory to be aliens, such children, if, after having come of -age, they make a declaration that they intend to be subjects of the -country of their birth, become _ipso facto_ by such option naturalised. -Again, fourthly, some States, such as Venezuela, let an alien become -naturalised _ipso facto_ by his taking his domicile[622] on their -territory. Some States, fifthly, let an alien become naturalised _ipso -facto_ on appointment as a Government official. And, lastly, in all -States naturalisation may be procured through a direct act on the part -of the State granting nationality to an alien who has applied for it. -This last kind of naturalisation is naturalisation in the narrower sense -of the term; it is the most important for the Law of Nations, and, -whenever one speaks of naturalisation pure and simple, such -naturalisation through direct grant on application is meant; it will be -discussed in detail below, §§ 303-307. - -[Footnote 621: English law has not adopted this rule.] - -[Footnote 622: It is doubtful (see Hall, § 64) whether the home State of -such individuals naturalised against their will must submit to this -_ipso facto_ naturalisation. See above, § 125, where the rule has been -stated that in consideration of the personal supremacy of the home State -over its citizens abroad no State can naturalise foreigners against -their will.] - -[Sidenote: Acquisition of Nationality through Redintegration.] - -§ 300. The third mode of acquiring nationality is that by so-called -redintegration or resumption. Such individuals as have been natural-born -subjects of a State, but have lost their original nationality through -naturalisation abroad or for some other cause, may recover their -original nationality on their return home. One speaks in this case of -redintegration or resumption in contradistinction to naturalisation, the -favoured person being redintegrated and resumed into his original -nationality. Thus, according to Section 10 of the Naturalisation -Act,[623] 1870, a widow being a natural-born British subject, who has -lost her British nationality through marriage with a foreigner, may at -any time during her widowhood obtain a certificate of readmission to -British nationality, provided she performs the same conditions and -adduces the same evidence as is required in the case of an alien -applying for naturalisation. And according to section 8 of the same Act, -a British-born individual who has lost his British nationality through -being naturalised abroad, may, if he returns home, obtain a certificate -of readmission to British nationality, provided he performs the same -conditions and adduces the same evidence as is required in the case of -an alien applying for naturalisation. - -[Footnote 623: 33 and 34 Vict. c. 14.] - -[Sidenote: Acquisition of Nationality through Subjugation and Cession.] - -§ 301. The fourth and fifth modes of acquiring nationality are by -subjugation after conquest and by cession of territory, the inhabitants -of the subjugated as well as of the ceded territory acquiring _ipso -facto_ by the subjugation or cession the nationality of the State which -acquires the territory. These modes of acquisition of nationality are -modes settled by the customary Law of Nations; it will be remembered -that details concerning this matter have been given above, §§ 219 and -240. - -[Sidenote: Seven modes of losing Nationality.] - -§ 302. Although it is left in the discretion of the different States to -determine the grounds on which individuals lose their nationality, it is -nevertheless of interest for the theory of the Law of Nations to take -notice of these grounds. Seven modes of losing nationality must be -stated to exist according to the reason of the thing, although all -seven are by no means recognised by all the States. These modes -are:--Release, deprivation, expiration, option, substitution, -subjugation, and cession. - -(1) Release. Some States, as Germany, give their citizens the right to -ask to be released from their nationality. Such release, if granted, -denationalises the released individual. - -(2) Deprivation. According to the Municipal Law of some States, as, for -instance, Bulgaria, Greece, Italy, Holland, Portugal, and Spain, the -fact that a citizen enters into foreign civil or military service -without permission of his Sovereign deprives him of his nationality. - -(3) Expiration. Some States have legislated that citizenship expires in -the cases of such of their subjects as have emigrated and stayed abroad -beyond a certain length of time. Thus, a German ceases to be a German -subject through the mere fact that he has emigrated and stayed abroad -for ten years without having undertaken the necessary step for the -purpose of retaining his nationality. - -(4) Option. Some States, as Great Britain, which declare a child born of -foreign parents on their territory to be their natural-born subject, -although he becomes at the same time according to the Municipal Law of -the home State of the parents a subject of such State, give the right to -such child to make, after coming of age, a declaration that he desires -to cease to be a citizen. Such declaration of alienage creates _ipso -facto_ the loss of nationality. - -(5) Substitution. Many States, as, for instance, Great Britain, have -legislated that the nationality of their subjects extinguishes _ipso -facto_ by their naturalisation abroad, be it through marriage, grant on -application, or otherwise. Other States, however, as, for instance, -Germany, do not object to their citizens acquiring another nationality -besides that which they already possess. - -(6) Subjugation and cession. It is a universally recognised customary -rule of the Law of Nations that the inhabitants of subjugated as well as -ceded territory lose their nationality and acquire that of the State -which annexes the territory.[624] - -[Footnote 624: See above, § 301. Concerning the option sometimes given -to inhabitants of ceded territory to retain their former nationality, -see above, § 219.] - - -IV - -NATURALISATION IN ESPECIAL - - Vattel, I. § 214--Hall, §§ 71-71*--Westlake, § I. pp. - 225-230--Lawrence, §§ 95-96--Phillimore, I. §§ 325-332--Halleck, - I. pp. 403-410--Taylor, §§ 181-182--Walker, § 19--Wharton, II. §§ - 173-183--Moore, III. §§ 377-380--Wheaton, § 85--Bluntschli, §§ - 371-372--Ullmann, §§ 110-111--Pradier-Fodéré, III. Nos. - 1656-1659--Calvo, II. §§ 581-646--Martens, II. §§ - 47-48--Stoicesco, "Étude sur la naturalisation" - (1875)--Folleville, "Traité de la naturalisation" - (1880)--Cogordan, "La nationalité, &c." (2nd ed. 1890), pp. - 117-284, 307-316--Delécaille, "De la naturalisation" - (1893)--Henriques, "The Law of Aliens, &c." (1906), pp. - 91-121--Piggott, "Nationality and Naturalisation, &c." 2 vols. - (new ed. 1907)--Hart, in the _Journal of the Society of - Comparative Legislation_, new series, vol. II. (1900), pp. 11-26. - -[Sidenote: Conception and Importance of Naturalisation.] - -§ 303. Naturalisation in the narrower sense of the term--in -contradistinction to naturalisation _ipso facto_ through marriage, -legitimation, option, domicile, and Government office (see above, § -299)--must be defined as reception of an alien into the citizenship of a -State through a formal act on application of the favoured individual. -International Law does not provide any such rules for such reception, -but it recognises the natural competence of every State as a Sovereign -to increase its population through naturalisation, although a State -might by its Municipal Law be prevented from making use of this natural -competence.[625] In spite, however, of the fact that naturalisation is a -domestic affair of the different States, it is nevertheless of special -importance to the theory and practice of the Law of Nations. This is the -case because naturalisation is effected through a special grant of the -naturalising State, and regularly involves either a change or a -multiplication of nationality, facts which can be and have been the -source of grave international conflicts. In the face of the fact that -millions of citizens emigrate every year from their home countries with -the intention of settling permanently in foreign countries, where the -majority of them become sooner or later naturalised, the international -importance of naturalisation cannot be denied. - -[Footnote 625: But there is, as far as I know, no civilised State in -existence which abstains altogether from naturalising foreigners.] - -[Sidenote: Object of Naturalisation.] - -§ 304. The object of naturalisation is always an alien. Some States will -naturalise such aliens only as are stateless because they never have -been citizens of another State or because they have renounced, or have -been released from or deprived of, the citizenship of their home State. -But other States, as Great Britain, naturalise also such aliens as are -and remain subjects of their home State. Most States naturalise such -person only as has taken his domicile in their country, has been -residing there for some length of time, and intends permanently to -remain in their country. And according to the Municipal Law of many -States, naturalisation of a married individual includes that of his wife -and children under age. But although every alien may be naturalised, no -alien has, according to the Municipal Law of most States, a claim to -become naturalised, naturalisation being a matter of discretion of the -Government, which can refuse it without giving any reasons. - -[Sidenote: Conditions of Naturalisation.] - -§ 305. If granted, naturalisation makes an alien a citizen. But it is -left to the discretion of the naturalising State to grant naturalisation -under any conditions it likes. Thus, for example, Great Britain grants -naturalisation on the sole condition that the naturalised alien shall -not be deemed to be a British subject when within the limits of the -foreign State of which he has been a subject previously to his -naturalisation, unless at the time of naturalisation he has ceased to be -a subject of that State. And it must be specially mentioned that -naturalisation need not give an alien absolutely the same rights as are -possessed by natural-born citizens. Thus according to article 2 of the -Constitution of the United States of America a naturalised alien can -never be elected President.[626] - -[Footnote 626: A foreigner naturalised in Great Britain by Letters of -Denization does not acquire the same rights as a natural-born British -subject. See Hall, "Foreign Powers and Jurisdiction" (1894), § 22.] - -[Sidenote: Effect of Naturalisation upon previous Citizenship.] - -§ 306. Since the Law of Nations does not comprise any rules concerning -naturalisation, the effect of naturalisation upon previous citizenship -is exclusively a matter of the Municipal Law of the States concerned. -Some States, as Great Britain,[627] have legislated that one of their -subjects becoming naturalised abroad loses thereby his previous -nationality; but other States, as Germany, have not done this. Further, -some States, as Great Britain again, deny every effect to the -naturalisation granted by them to an alien whilst he is staying on the -territory of the State whose subject he was previously to his -naturalisation, unless at the time of naturalisation he was no longer a -subject of such State. But other States do not make this provision. Be -that as it may, there can be no doubt that a person who is naturalised -abroad and temporarily or permanently returns into the country of his -origin, can be held responsible[628] for all acts done there at the time -before his naturalisation abroad. - -[Footnote 627: Formerly Great Britain upheld the rule _nemo potest -exuere patriam_, but Section 6 of the Naturalisation Act, 1870, does -away with that rule. Its antithesis is the rule _ne quis invitus -civitate mutetur, neve in civitate maneat invitus_ (Cicero, "Pro Balbo," -c. 13, § 31; see Rattigan, "Private International Law" (1895), p. 29, -No. 21).] - -[Footnote 628: Many instructive cases concerning this matter are -reported by Wharton, II. §§ 180 and 181, and Moore, III. §§ 401-407. See -also Hall, § 71, where details concerning the practice of many States -are given with regard to their subjects naturalised abroad.] - -[Sidenote: Naturalisation in Great Britain.] - -§ 307. The present law of Great Britain[629] concerning Naturalisation -is mainly contained in the Naturalisation Acts of 1870, 1874, and -1895.[630] Aliens may on their application become naturalised by a -certificate of naturalisation in case they have resided in the United -Kingdom or have been in the service of the British Crown for a term of -not less than five years, and in case they have the intention to -continue residing within the United Kingdom or serving under the Crown. -But naturalisation may be refused without giving a reason therefor -(section 7). British possessions may legislate on their own account -concerning naturalisation (section 16), and aliens so naturalised are -for all international purposes[631] British subjects. Where the Crown -enters into a convention with a foreign State to the effect that the -subjects of such State who have been naturalised in Great Britain may -divest themselves of their status as British subjects, such naturalised -British subjects can through a declaration of alienage shake off the -acquired British nationality (section 3). Naturalisation of the husband -includes that of his wife, and naturalisation of the father, or mother -in case she is a widow, includes naturalisation of such children as have -during infancy become resident in the United Kingdom at the time of -their father's or mother's naturalisation (section 10). Neither the case -of children who are not resident within the United Kingdom or not -resident with their father in the service of the Crown abroad at the -time of the naturalisation of their father or widowed mother, nor the -case of children born abroad after the naturalisation of the father is -mentioned in the Naturalisation Act. It is, therefore, to be taken for -granted that such children are not[632] British subjects, except -children born of a naturalised father abroad in the service of the -Crown.[633] - -[Footnote 629: As regards naturalisation in the United States of -America, see Moore, III. §§ 381-389, and Dyne, "Naturalisation in the -United States" (1907).] - -[Footnote 630: 33 Vict. c. 14; 35 and 36 Vict. c. 39; 58 & 59 Vict. c. -43. See Foote, "Private International Jurisprudence," 3rd ed. (1904), -pp. 1-51; Westlake, "Private International Law," 4th ed. (1905), §§ -284-287; Dicey, "Conflict of Laws," 2nd ed. (1908), pp. 172-191.] - -[Footnote 631: See Hall, "Foreign Powers and Jurisdiction," §§ 20 and -21, especially concerning naturalisation in India.] - -[Footnote 632: See Hall, "Foreign Powers and Jurisdiction," § 19.] - -[Footnote 633: See Naturalisation Act, 1895 (58 & 59 Vict. c. 43).] - -Not to be confounded with naturalisation proper is naturalisation -through _denization_ by means of Letters Patent under the Great Seal. -This way of making an alien a British subject is based on a very ancient -practice[634] which has not yet become obsolete. Such denization -requires no previous residence within the United Kingdom. "A person may -be made a denizen without ever having set foot upon British soil. There -have been, and from time to time there no doubt will be, persons of -foreign nationality to whom it is wished to entrust functions which can -only be legally exercised by British subjects. In such instances, the -condition of five years' residence in the United Kingdom would generally -be prohibitory. The difficulty can be avoided by the issue of Letters of -Denization; and it is believed that on one or two occasions letters have -in fact been issued with the view of enabling persons of foreign -nationality to exercise British consular jurisdiction in the East." -(Hall.) - -[Footnote 634: See Hall, "Foreign Powers and Jurisdiction," § 22.] - - -V - -DOUBLE AND ABSENT NATIONALITY - - Hall, § 71--Westlake, I. pp. 221-225--Lawrence, § 96--Halleck, I. - pp. 410-413--Taylor, § 183--Wheaton, § 85 (Dana's note)--Moore, - III. §§ 426-430--Bluntschli, §§ 373-374--Hartmann, § 82--Heffter, - § 59--Stoerk in Holtzendorff, II. pp. 650-655--Ullmann, § - 110--Bonfils, No. 422--Pradier-Fodéré, III. Nos. - 1660-1665--Rivier, I. pp. 304-306--Calvo, II. §§ 647-654--Martens, - II. § 46. - -[Sidenote: Possibility of Double and Absent Nationality.] - -§ 308. The Law of Nations having no rule concerning acquisition and loss -of nationality beyond this, that nationality is lost and acquired -through subjugation and cession, and, on the other hand, the Municipal -Laws of the different States differing in many points concerning this -matter, the necessary consequence is that an individual may own two -different nationalities as easily as none at all. The points to be -discussed here are therefore: how double nationality occurs, the -position of individuals with double nationality, how absent nationality -occurs, the position of individuals destitute of nationality, and, -lastly, means of redress against difficulties arising from double and -absent nationality. - -It must, however, be specially mentioned that the Law of Nations is -concerned with such cases only of double and absent nationality as are -the consequences of conflicting Municipal Laws of several absolutely -different States. Such cases as are the consequence of the Municipal -Laws of a Federal State or of a State which, as Great Britain, allows -outlying parts to legislate on their own account concerning -naturalisation, fall outside the scope of the Law of Nations. Thus the -fact that, according to the law of Germany, a German can be at the same -time a subject of several member-States of the German Empire, or can be -a subject of this Empire without being a subject of one of its -member-States, does as little concern the Law of Nations as the fact -that an individual can be a subject of a British Colonial State without -at the same time being a subject of the United Kingdom. For -internationally such individuals appear as subjects of such Federal -State or the mother-country, whatever their position may be inside these -States. - -[Sidenote: How Double Nationality occurs.] - -§ 309. An individual may own double nationality knowingly or -unknowingly, and with or without intention. And double nationality may -be produced by every mode of acquiring nationality. Even birth can vest -a child with double nationality. Thus, every child born in Great -Britain of German parents acquires at the same time British and German -nationality, for such child is British according to British, and German -according to German Municipal Law. Double nationality can likewise be -the result of marriage. Thus, a Venezuelan woman marrying an Englishman -acquires according to British law British nationality, but according to -Venezuelan law she does not lose her Venezuelan nationality. -Legitimation of illegitimate children can produce the same effect. Thus, -an illegitimate child of a German born in England of an English mother -is a British subject according to British and German law, but if after -the birth of the child the father marries the mother and remains a -resident in England, he thereby legitimates the child according to -German law, and such child acquires thereby German nationality without -losing his British nationality, although the mother does lose her -British nationality.[635] Again, double nationality may be the result of -option. Thus, a child born in France of German parents acquires German -nationality, but if, after having come of age, he acquires French -nationality by option through making the declaration necessary according -to French Municipal Law, he does not thereby, according to German -Municipal Law, lose his German nationality. It is not necessary to give -examples of double nationality caused by taking domicile abroad, -accepting foreign Government office, and redintegration, and it suffices -merely to draw attention to the fact that naturalisation in the narrower -sense of the term is frequently a cause of double nationality, since -individuals may apply for and receive naturalisation in a State without -thereby losing the nationality of their home State. - -[Footnote 635: This is the consequence of Section 10, Nos. 1 and 3, of -the Naturalisation Act, 1870.] - -[Sidenote: Position of Individuals with Double Nationality.] - -§ 310. Individuals owning double nationality bear in the language of -diplomatists the name _sujets mixtes_. The position of such "mixed -subjects" is awkward on account of the fact that two different States -claim them as subjects, and therefore their allegiance. In case a -serious dispute arises between these two States which leads to war, an -irreconcilable conflict of duties is created for these unfortunate -individuals. It is all very well to say that such conflict is a personal -matter which concerns neither the Law of Nations nor the two States in -dispute. As far as an individual has, through naturalisation, option, -and the like, acquired his double nationality, one may say that he has -placed himself in that awkward position by intentionally and knowingly -acquiring a second without being released from his original nationality. -But those who are natural-born _sujets mixtes_ in most cases do not know -thereof before they have to face the conflict, and their difficult -position is not their own fault. - -Be that as it may, there is no doubt that each of the States claiming -such an individual as subject is internationally competent to do this, -although they cannot claim him against one another, since each of them -correctly maintains that he is its subject.[636] But against third -States each of them appears as his Sovereign, and it is therefore -possible that each of them can exercise its right of protection over him -within third States. - -[Footnote 636: I cannot agree with the statement in its generality made -by Westlake, I. p. 221:--"If, for instance, a man claimed as a national -both by the United Kingdom and by another country should contract in the -latter a marriage permitted by its laws to its subjects, an English -Court would have to accept him as a married man." If this were correct, -the marriage of a German who, without having given up his German -citizenship, has become naturalised in Great Britain and has afterwards -married his niece in Germany, would have to be recognised as legal by -the English Courts. The correct solution seems to me to be that such -marriage is legal in Germany, but not legal in England, because British -law does not admit of marriage between uncle and niece. The case is -different when a German who marries his niece in Germany, afterwards -takes his domicile and becomes naturalised in England; in this case -English Courts would have to recognise the marriage as legal because -German law does not object to a marriage between uncle and niece, and -because the marriage was concluded before the man took his domicile in -England and became a British subject. See Foote, "Private International -Jurisprudence," 3rd ed. (1904), p. 106, and the cases there cited.] - -[Sidenote: How Absent Nationality occurs.] - -§ 311. An individual may be destitute of nationality knowingly or -unknowingly, intentionally or through no fault of his own. Even by birth -a person may be stateless. Thus, an illegitimate child born in Germany -of an English mother is actually destitute of nationality because -according to German law he does not acquire German nationality, and -according to British law he does not acquire British nationality. Thus, -further, all children born in Germany of parents who are destitute of -nationality are themselves, according to German law, stateless. But -statelessness may take place after birth. All individuals who have lost -their original nationality without having acquired another are in fact -destitute of nationality. - -[Sidenote: Position of Individuals destitute of Nationality.] - -§ 312. That stateless individuals are objects of the Law of Nations in -so far as they fall under the territorial supremacy of the State on -whose territory they live there is no doubt whatever. But since they do -not own a nationality, the link[637] by which they could derive benefits -from International Law is missing, and thus they lack any protection -whatever as far as this law is concerned. The position of such -individuals destitute of nationality may be compared to vessels on the -Open Sea not sailing under the flag of a State, which likewise do not -enjoy any protection whatever. In practice, stateless individuals are in -most States treated more or less as though they were subjects of foreign -States, but as a point of international legality there is no restriction -whatever upon a State's maltreating them to any extent.[638] - -[Footnote 637: See above, § 291.] - -[Footnote 638: The position of the Jews in Roumania furnishes a sad -example. According to Municipal Law they are, with a few exceptions, -considered as foreigners for the purpose of avoiding the consequences of -article 44 of the Treaty of Berlin, 1878, according to which no -religious disabilities may be imposed by Roumania upon her subjects. But -as these Jews are not subjects of any other State, Roumania compels them -to render military service, and actually treats them in every way -according to discretion without any foreign State being able to exercise -a right of protection over them. See Rey in R.G. X. (1903), pp. 460-526, -and Bar in R.I. 2nd Ser. IX. (1907), pp. 711-716. See also above, § 293, -p. 369, note 2.] - -[Sidenote: Redress against Difficulties arising from Double and Absent -Nationality.] - -§ 313. Double as well as absent nationality of individuals has from time -to time created many difficulties for the States concerned. As regards -the remedy for such difficulties, it is comparatively easy to meet those -created by absent nationality. If the number of stateless individuals -increases much within a certain State, the latter can require them to -apply for naturalisation or to leave the country; it can even naturalise -them by Municipal Law against their will, as no other State will, or has -a right to, interfere, and as, further, the very fact of the existence -of individuals destitute of nationality is a blemish in Municipal as -well as in International Law. Much more difficult is it, however, to -find, within the limits of the present rules of the Law of Nations, -means of redress against conflicts arising from double nationality. Very -grave disputes indeed have occasionally occurred between States on -account of individuals who were claimed as subjects by both sides. Thus, -in 1812, a time when England still kept to her old rule that no -natural-born English subject could lose his nationality, the United -States went to war with England because the latter impressed Englishmen -naturalised in America from on board American merchantmen, claiming the -right to do so, as according to her law these men were still English -citizens. Thus, further, Prussia frequently had during the sixties of -the last century disputes with the United States on account of Prussian -individuals who, without having rendered military service at home, had -emigrated to America to become there naturalised and had afterwards -returned to Prussia.[639] Again, during the time of the revolutionary -movements in Ireland in the last century before the Naturalisation Act -of 1870 was passed, disputes arose between Great Britain and the United -States on account of such Irishmen as took part in these revolutionary -movements after having become naturalised in the United States.[640] It -would seem that the only way in which all the difficulties arising from -double and absent nationality could really be done away with is for all -the Powers to agree upon an international convention, according to which -they undertake the obligation to enact by their Municipal Law such -corresponding rules regarding acquisition and loss of nationality as -make the very occurrence of double and absent nationality -impossible.[641] - -[Footnote 639: The case of Martin Koszta ought here to be mentioned, -details of which are reported by Wharton, II. § 175; Moore, III. §§ -490-491, and Martens, "Causes Célèbre," V. pp. 583-599. Koszta was a -Hungarian subject who took part in the revolutionary movement of 1848, -escaped to the United States, and in July, 1852, made a declaration -under oath, before a proper tribunal, of his intention to become -naturalised there. After remaining nearly two years in the United -States, but before he was really naturalised, he visited Turkey, and -obtained a _tezkereh_, a kind of letter of safe-conduct, from the -American Chargé d'Affaires at Constantinople. Later on, while at Smyrna, -he was seized by Austrian officials and taken on board an Austrian -man-of-war with the intention of bringing him to Austria, to be there -punished for his part in the revolution of 1848. The American Consul -demanded his release, but Austria maintained that she had a right to -arrest Koszta according to treaties between her and Turkey. Thereupon -the American man-of-war _Saint Louis_ threatened to attack the Austrian -man-of-war in case she would not give up her prisoner, and an -arrangement was made that Koszta should be delivered into the custody of -the French Consul at Smyrna until the matter was settled between the -United States and Austrian Governments. Finally, Austria consented to -Koszta's being brought back to America. Although Koszta was not yet -naturalised, the United States claimed a right of protection over him, -since he had taken his domicile on her territory with the intention to -become there naturalised in due time, and had thereby in a sense -acquired the national character of an American.] - -[Footnote 640: The United States have, through the so-called "Bancroft -Treaties," attempted to overcome conflicts arising from double -nationality. The first of these treaties was concluded in 1868 with the -North German Confederation, the precursor of the present German Empire, -and signed on behalf of the United States by her Minister in Berlin, -George Bancroft. (See Wharton, II. §§ 149 and 179, and Moore, III. §§ -391-400.) In the same and the following years treaties of the same kind -were concluded with many other States, the last with Portugal in 1908. A -treaty of another kind, but with the same object, was concluded between -the United States and Great Britain on May 13, 1870. (See Martens, -N.R.G. XX. p. 524, and Moore, III. § 397.) All these treaties stipulate -that naturalisation in one of the contracting States shall be recognised -by the other, whether the naturalised individual has or has not -previously been released from his original citizenship, provided he has -resided for five years in such country. And they further stipulate that -such naturalised individuals, in case they return after naturalisation -into their former home State and take their residence there for some -years, either _ipso facto_ become again subjects of their former home -State and cease to be naturalised abroad (as the Bancroft Treaties), or -can be reinstated in their former citizenship, and cease thereby to be -naturalised abroad (as the treaty with Great Britain).] - -[Footnote 641: The Institute of International Law has studied the -matter, and formulated at its meeting in Venice in 1896 six rules, -which, if adopted on the part of the different States, would do away -with many of the difficulties. (See Annuaire, XV. p. 270.)] - - -VI - -RECEPTION OF ALIENS AND RIGHT OF ASYLUM - - Vattel, II. § 100--Hall, §§ 63-64--Westlake, I. pp. - 208-210--Lawrence, §§ 97-98--Phillimore, I. §§ 365-370--Twiss, I. - § 238--Halleck, I. pp. 452-454--Taylor, § 186--Walker, § - 19--Wharton, II. § 206--Wheaton, § 115, and Dana's Note--Moore, - IV. §§ 560-566--Bluntschli, §§ 381-398--Hartmann, §§ 84-85, - 89--Heffter, §§ 61-63--Stoerk in Holtzendorff, II. pp. - 637-650--Gareis, § 57--Liszt, § 25--Ullmann, §§ 113-115--Bonfils, - Nos. 441-446--Despagnet, Nos. 339-343--Rivier, I. pp. - 307-309--Nys, II. pp. 232-237--Calvo, II. §§ 701-706, VI. § - 119--Martens, II. § 46--Overbeck, "Niederlassungsfreiheit und - Ausweisungsrecht" (1906); Henriques, "The Law of Aliens, &c." - (1906)--Sibley and Elias, "The Aliens Act, &c." - (1906)--Proceedings of the American Society of International Law, - 1911, pp. 65-115. - -[Sidenote: No Obligation to admit Aliens.] - -§ 314. Many writers[642] maintain that every member of the Family of -Nations is bound by International Law to admit all aliens into its -territory for all lawful purposes, although they agree that every State -could exclude certain classes of aliens. This opinion is generally held -by those who assert that there is a fundamental right of intercourse -between States. It will be remembered[643] that no such fundamental -right exists, but that intercourse is a characteristic of the position -of the States within the Family of Nations and therefore a -presupposition of the international personality of every State. A State, -therefore, cannot exclude aliens altogether from its territory without -violating the spirit of the Law of Nations and endangering its very -membership of the Family of Nations. But no State actually does exclude -aliens altogether. The question is only whether an international legal -duty can be said to exist for every State to admit all unobjectionable -aliens to all parts of its territory. And it is this duty which must be -denied as far as the customary Law of Nations is concerned. It must be -emphasised that, apart from general conventional arrangements, as, for -instance, those concerning navigation on international rivers, and apart -from special treaties of commerce, friendship, and the like, no State -can claim the right for its subjects to enter into and reside on the -territory of a foreign State. The reception of aliens is a matter of -discretion, and every State is by reason of its territorial supremacy -competent to exclude aliens from the whole or any part of its territory. -And it is only by an inference of this competence that Great -Britain,[644] the United States of America, and other States have made -special laws according to which paupers and criminals, as well as -diseased and other objectionable aliens, are prevented from entering -their territory. Every State is and must remain master in its own house, -and such mastership is of especial importance with regard to the -admittance of aliens. Of course, if a State excluded all subjects of one -State only, this would constitute an unfriendly act, against which -retorsion would be admissible; but it cannot be denied that a State is -competent to do this, although in practice such wholesale exclusion will -never happen. Hundreds of treaties of commerce and friendship exist -between the members of the Family of Nations according to which they are -obliged to receive each other's unobjectionable subjects, and thus -practically the matter is settled, although in strict law every State is -competent to exclude foreigners from its territory.[645] - -[Footnote 642: See, for instance, Bluntschli, § 381, and Liszt, § 25.] - -[Footnote 643: See above, § 141.] - -[Footnote 644: See the Aliens Act, 1905 (5 Edw. VII. c. 13). See also -Henriques, "The Law of Aliens, &c." (1906), and Sibley and Elias, "The -Aliens Act, &c." (1906).] - -[Footnote 645: The Institute of International Law has studied the -matter, and adopted, at its meeting at Geneva in 1892 (see Annuaire, -XII. p. 219), a body of forty-one articles concerning the admission and -expulsion of aliens; articles 6-13 deal with the admittance of aliens.] - -[Sidenote: Reception of Aliens under conditions.] - -§ 315. It is obvious that, if a State need not receive aliens at all, it -can, on the other hand, receive them under certain conditions only. -Thus, for example, Russia does not admit aliens without passports, and -if the alien adheres to the Jewish faith he has to submit to a number of -special restrictions. Thus, further, during the time Napoleon III. ruled -in France, every alien entering French territory from the sea or from -neighbouring land was admitted only after having stated his name, -nationality, and the place to which he intended to go. Some States, as -Switzerland, make a distinction between such aliens as intend to settle -down in the country and such as intend only to travel in the country; no -alien is allowed to settle in the country without having asked and -received a special authorisation on the part of the Government, whereas -the country is unconditionally open to all mere travelling aliens. - -[Sidenote: So-called Right of Asylum.] - -§ 316. The fact that every State exercises territorial supremacy over -all persons on its territory, whether they are its subjects or aliens, -excludes the prosecution of aliens thereon by foreign States. Thus, a -foreign State is, provisionally at least, an asylum for every individual -who, being prosecuted at home, crosses its frontier. In the absence of -extradition treaties stipulating the contrary, no State is by -International Law obliged to refuse admittance into its territory to -such a fugitive or, in case he has been admitted, to expel him or -deliver him up to the prosecuting State. On the contrary, States have -always upheld their competence to grant asylum if they choose to do so. -Now the so-called right of asylum is certainly not a right of the alien -to demand that the State into whose territory he has entered with the -intention of escaping prosecution from some other State should grant -protection and asylum. For such State need not grant them. The so-called -right of asylum is nothing but the competence mentioned above of every -State, and inferred from its territorial supremacy, to allow a -prosecuted alien to enter and to remain on its territory under its -protection, and to grant thereby an asylum to him. Such fugitive alien -enjoys the hospitality of the State which grants him asylum; but it -might be necessary to place him under surveillance, or even to intern -him at some place in the interest of the State which is prosecuting him. -For it is the duty of every State to prevent individuals living on its -territory from endangering the safety of another State. And if a State -grants asylum to a prosecuted alien, this duty becomes of special -importance. - - -VII - -POSITION OF ALIENS AFTER RECEPTION - - Vattel, I. § 213, II. §§ 101-115--Hall, §§ 63 and 87--Westlake, I. - pp. 211-212, 313-316--Lawrence, §§ 97-98--Phillimore, I. §§ - 332-339--Twiss, I. § 163--Taylor, §§ 173, 187, 201-203--Walker, § - 19--Wharton, II. §§ 201-205--Wheaton, § 77-82--Moore, IV. §§ - 534-549--Bluntschli, §§ 385-393--Hartmann, §§ 84-85--Heffter, § - 62--Stoerk in Holtzendorff, II. pp. 637-650--Gareis, § 57--Liszt, - § 25--Ullmann, §§ 113-115--Bonfils, Nos. 447-454--Despagnet, Nos. - 339-343--Rivier, I. pp. 309-311--Calvo, II. §§ 701-706--Martens, - II. § 46--Gaston de Leval, "De la protection des nationaux à - l'étranger" (1907)--Wheeler in A.J. III. (1909), pp. - 869-884--Proceedings of the American Society of International Law, - 1911, pp. 32-65, 150-225. - -[Sidenote: Aliens subjected to territorial Supremacy.] - -§ 317. With his entrance into a State, an alien, unless he belongs to -the class of those who enjoy so-called exterritoriality, falls at once -under such State's territorial supremacy, although he remains at the -same time under the personal supremacy of his home State. Such alien is -therefore under the jurisdiction of the State in which he stays, and is -responsible to such State for all acts he commits on its territory. He -is further subjected to all administrative arrangements of such State -which concern the very locality where the alien is. If in consequence of -a public calamity, such as the outbreak of a fire or an infectious -disease, certain administrative restrictions are enforced, they can be -enforced against all aliens as well as against citizens. But apart from -jurisdiction and mere local administrative arrangements, both of which -concern all aliens alike, a distinction must be made between such aliens -as are merely travelling and stay, therefore, only temporarily on the -territory, and such as take their residence there either permanently or -for some length of time. A State has wider power over aliens of the -latter kind; it can make them pay rates and taxes, and can even compel -them in case of need, under the same conditions as citizens, to serve in -the local police and the local fire brigade for the purpose of -maintaining public order and safety. On the other hand, an alien does -not fall under the personal supremacy of the local State; therefore he -cannot be made to serve[646] in its army or navy, and cannot, like a -citizen, be treated according to discretion. - -[Footnote 646: See, however, above, § 127, concerning the attitude of -Great Britain with regard to aliens in British colonies.] - -It must be emphasised that an alien is responsible to the local State -for all illegal acts which he commits while the territory concerned is -during war temporarily occupied by the enemy. An illustrative case is -that of De Jager _v._ the Attorney-General for Natal.[647] De Jager was -a burgher of the South African Republic, but a settled resident at Natal -when the South African War broke out. In October 1899 the British forces -evacuated that part of Natal in which Waschbank, where he lived, is -situated, and the Boer forces were in occupation for some six months. He -joined them, and served in different capacities until March 1900, when -he went to the Transvaal, and took no further part in the war. - -[Footnote 647: L.R. [1907] App. C., 326. See Baty in _The Law Magazine -and Review_, XXXIII. (1908), pp. 214-218, who disapproves of the -conviction of De Jager.] - -He was tried in March 1901, and convicted of -high treason, and sentenced to five years' imprisonment and a fine of -£5000, or, failing payment thereof, to a further three years. - -[Sidenote: Aliens in Eastern Countries.] - -§ 318. The rule that aliens fall under the territorial supremacy of the -State they are in finds an exception in Turkey and, further, in such -other Eastern States, like China, as are, in consequence of their -deficient civilisation, only for some parts members of the Family of -Nations. Aliens who are subjects of Christian States and enter into the -territory of such Eastern States, remain wholly under the -jurisdiction[648] of their home State. This exceptional condition of -things is based, as regards Turkey, on custom and treaties which are -called Capitulations, as regards other Eastern States on treaties -only.[649] Jurisdiction over aliens in these countries is exercised by -the consuls of their home States, which have enacted special Municipal -Laws for that purpose. Thus, Great Britain has enacted so-called Foreign -Jurisdiction Acts at several times, which are now all consolidated in -the Foreign Jurisdiction Act of 1890.[650] It must be specially -mentioned that Japan has since 1899 ceased to belong to the Eastern -States in which aliens are exempt from local jurisdiction. - -[Footnote 648: See below, § 440.] - -[Footnote 649: See Twiss, I. § 163, who enumerates many of these -treaties; see also Phillimore, I. §§ 336-339; Hall, "Foreign Powers and -Jurisdiction," §§ 59-91; and Scott, "The Law affecting Foreigners in -Egypt as the Result of the Capitulations" (1907).] - -[Footnote 650: 53 & 54 Vict. c. 37. See Piggott, "Exterritoriality. The -Law relating to Consular Jurisdiction, &c.," new edition (1907).] - -[Sidenote: Aliens under the Protection of their Home State.] - -§ 319. Although aliens fall at once under the territorial supremacy of -the State they enter, they remain nevertheless under the protection of -their home State. By a universally recognised customary rule of the Law -of Nations every State holds a right of protection[651] over its -citizens abroad, to which corresponds the duty of every State to treat -foreigners on its territory with a certain consideration which will be -discussed below, §§ 320-322. The question here is only when and how this -right of protection can be exercised.[652] Now there is certainly, as -far as the Law of Nations is concerned, no duty incumbent upon a State -to exercise its protection over its citizens abroad. The matter is -absolutely in the discretion of every State, and no citizen abroad has -by International Law, although he may have it by Municipal Law, a right -to demand protection from his home State. Often for political reasons -States have in certain cases refused the exercise of their right of -protection over citizens abroad. Be that as it may, every State _can_ -exercise this right when one of its subjects is wronged abroad in his -person or property, either by the State itself on whose territory such -person or property is for the time, or by such State's officials or -citizens without such State's interfering for the purpose of making good -the wrong done.[653] And this right can be realised in several ways. -Thus, a State whose subjects are wronged abroad can diplomatically -insist upon the wrongdoers being punished according to the law of the -land and upon damages, if necessary, being paid to its subjects -concerned. It can, secondly, exercise retorsion and reprisals for the -purpose of making the other State comply with its demands. It can, -further, exercise intervention, and it can even go to war when -necessary. And there are other means besides those mentioned. It is, -however, quite impossible to lay down hard-and-fast rules as regards -the question in which way and how far in every case the right of -protection ought to be exercised. Everything depends upon the merits of -the individual case and must be left to the discretion of the State -concerned. The latter will have to take into consideration whether the -wronged alien was only travelling through or had settled down in the -country, whether his behaviour had been provocative or not, how far the -foreign Government identified itself with the acts of officials or -subjects, and the like. - -[Footnote 651: This right has, I believe, grown up in furtherance of -intercourse between the members of the Family of Nations (see above, § -142); Hall (§ 87) and others deduce this indubitable right from the -"fundamental" right of self-preservation.] - -[Footnote 652: See Moore, VI. §§ 979-997, and Wheeler in A.J. III. -(1909), pp. 869-884.] - -[Footnote 653: Concerning the responsibility of a State for -internationally injurious acts of its own, its organs and other -officials, and its subjects, see above, §§ 151-167, and Anzilloti in -R.G. XIII. (1906), pp. 5 and 285. The right of protection over citizens -abroad is discussed in detail by Hall, § 87, Westlake, I. pp. 313-320, -and Gaston de Leval, op. cit. Concerning the right of protection of a -State over its citizens with regard to public debts of foreign States, -see above, §§ 135 (6) and 155.] - -[Sidenote: Protection to be afforded to Aliens' Persons and Property.] - -§ 320. Under the influence of the right of protection over its subjects -abroad which every State holds, and the corresponding duty of every -State to treat aliens on its territory with a certain consideration, an -alien, provided he owns a nationality at all, cannot be outlawed in -foreign countries, but must be afforded protection of his person and -property. The home State of the alien has by its right of protection a -claim upon such State as allows him to enter its territory that such -protection shall be afforded, and it is no excuse that such State does -not provide any protection whatever for its own subjects. In consequence -thereof every State is by the Law of Nations compelled, at least, to -grant to aliens equality before the law with its citizens as far as -safety of person and property is concerned. An alien must in especial -not be wronged in person or property by the officials and Courts of a -State. Thus, the police must not arrest him without just cause, -custom-house officials must treat him civilly, Courts of Justice must -treat him justly and in accordance with the law. Corrupt administration -of the law against natives is no excuse for the same against aliens, and -no Government can cloak itself with the judgment of corrupt judges. - -[Sidenote: How far Aliens can be treated according to Discretion.] - -§ 321. Apart from protection of person and property, every State can -treat aliens according to discretion, those points excepted concerning -which discretion is restricted through international treaties between -the States concerned. Thus, a State can exclude aliens from certain -professions and trades; it can, as Great Britain did formerly and Russia -does even to-day, exclude them from holding real property; it can, as -again Great Britain[654] did in former times, compel them to have their -names registered for the purpose of keeping them under control, and the -like. It must, however, be stated that there is a tendency within all -the States which are members of the Family of Nations to treat admitted -aliens more and more on the same footing as citizens, political rights -and duties, of course, excepted. Thus, for instance, with the only -exception that an alien cannot be sole or part owner of a British ship, -aliens having taken up their domicile in this country are for all -practical purposes treated by the law[655] of the land on the same -footing as British subjects. - -[Footnote 654: See an Act for the Registration of Aliens, &c., 1836 (6 & -7 William IV. c. 11).] - -[Footnote 655: That aliens cannot now any longer belong to the London -Stock Exchange, is an outcome not of British Municipal Law, but of -regulations of the Stock Exchange.] - -[Sidenote: Departure from the Foreign Country.] - -§ 322. Since a State holds territorial only, but not personal supremacy -over an alien within its boundaries, it can never under any -circumstances prevent him from leaving its territory, provided he has -fulfilled his local obligations, as payment of rates and taxes, of -fines, of private debts, and the like. And an alien leaving a State can -take all his property away with him, and a tax for leaving the country -or tax upon the property he takes away with him[656] cannot be levied. -And it must be specially mentioned that since the beginning of the -nineteenth century the so-called _droit d'aubaine_ belongs to the past; -this is the name of the right, which was formerly frequently exercised, -of a State to confiscate the whole estate of an alien deceased on its -territory.[657] But if a State levies estate duties in the case of a -citizen dying on its territory, as Great Britain does according to the -Finance Act[658] of 1894, such duties can likewise be levied in case of -an alien dying on its territory. - -[Footnote 656: So-called _gabella emigrationis_.] - -[Footnote 657: See details in Wheaton, § 82. The _droit d'aubaine_ was -likewise named _jus albinagii_.] - -[Footnote 658: 57 & 58 Vict. c. 30. Estate duty is levied in Great -Britain in the case also of such alien dying abroad as leaves movable -property in the United Kingdom without having ever been resident there. -As far as the Law of Nations is concerned, it is doubtful whether Great -Britain is competent to claim estate duties in such cases.] - - -VIII - -EXPULSION OF ALIENS - - Hall, § 63--Westlake, I. p. 210--Phillimore, I. § 364--Halleck, I. - pp. 460-461--Taylor, § 186--Walker, § 19--Wharton, II. § - 206--Moore, IV. §§ 550-559--Bluntschli, §§ 383-384--Stoerk in - Holtzendorff, II. pp. 646-656--Ullmann, § 115--Bonfils, No. - 442--Despagnet, Nos. 336-337--Pradier-Fodéré, III. Nos. - 1857-1859--Rivier, I. pp. 311-314--Nys, II. pp. 229-237--Calvo, - VI. §§ 119-125--Fiore, Code, Nos. 252-259--Martens, I. § - 79--Bleteau, "De l'asile et de l'expulsion" (1886)--Berc, "De - l'expulsion des étrangers" (1888)--Féraud-Giraud, "Droit - d'expulsion des étrangers" (1889)--Langhard, "Das Recht der - politischen Fremdenausweisung" (1891)--Overbeck, - "Niederlassungsfreiheit und Ausweisungsrecht" - (1906)--Rolin-Jaequemyns in R.I. XX. (1888), pp. 499 and - 615--Proceedings of the American Society of International Law, - 1911, pp. 119-149. - -[Sidenote: Competence to expel Aliens.] - -§ 323. Just as a State is competent to refuse admittance to an alien, so -it is, in conformity with its territorial supremacy, competent to expel -at any moment an alien who has been admitted into its territory. And it -matters not whether the respective individual is only on a temporary -visit or has settled down for professional or business purposes on that -territory, having taken his domicile thereon. Such States, of course, as -have a high appreciation of individual liberty and abhor arbitrary -powers of Government will not readily expel aliens. Thus, the British -Government has no power to expel even the most dangerous alien without -the recommendation of a Court, or without an Act of Parliament making -provision for such expulsion. And in Switzerland, article 70 of the -Constitution empowers the Government to expel such aliens only as -endanger the internal and external safety of the land. But many States -are in no way prevented by their Municipal Law from expelling aliens -according to discretion, and examples of arbitrary expulsion of aliens, -who had made themselves objectionable to the respective Governments, are -numerous in the past and the present. - -On the other hand, it cannot be denied that, especially in the case of -expulsion of an alien who has been residing within the expelling State -for some length of time and has established a business there, the home -State of the expelled individual is by its right of protection over -citizens abroad justified in making diplomatic representations to the -expelling State and asking for the reasons for the expulsion. But as in -strict law a State can expel even domiciled aliens without so much as -giving the reasons, the refusal of the expelling State to supply the -reasons for expulsion to the home State of the expelled alien does not -constitute an illegal, although a very unfriendly, act. And there is no -doubt that every expulsion of an alien without just cause is, in spite -of its international legality, an unfriendly act, which can rightfully -be met with retorsion. - -[Sidenote: Just Causes of Expulsion of Aliens.] - -§ 324. On account of the fact that retorsion might be justified, the -question is of importance what just causes of expulsion of aliens there -are. As International Law gives no detailed rules regarding expulsion, -everything is left to the discretion of the single States and depends -upon the merits of the individual case. Theory and practice correctly -make a distinction between expulsion in time of war and in time of -peace. A belligerent may consider it convenient to expel all enemy -subjects residing or temporarily staying within his territory. And, -although such a measure may be very hard and cruel, the opinion is -general that such expulsion is justifiable.[659] As regards expulsion in -time of peace, on the other hand, the opinions of writers as well as of -States naturally differ much. Such State as expels an alien will hardly -admit not having had a just cause. Some States, as Belgium[660] since -1885, possess Municipal Laws determining just causes for the expulsion -of aliens, and such States' discretion concerning expulsion is, of -course, more or less restricted. But many States do not possess such -laws, and are, therefore, entirely at liberty to consider a cause as -justifying expulsion or not. The Institute of International Law at its -meeting at Geneva in 1892 adopted a body of forty-one articles -concerning the admittance and expulsion of aliens, and in article 28 -thereof enumerated nine just causes for expulsion in time of peace.[661] -I doubt whether the States will ever come to an agreement about just -causes of expulsion. The fact cannot be denied that an alien is more or -less a guest in the foreign land, and the question under what conditions -such guest makes himself objectionable to his host cannot once for all -be answered by the establishment of a body of rules. So much is certain, -that with the gradual disappearance of despotic views in the different -States, and with the advance of true constitutionalism guaranteeing -individual liberty and freedom of opinion and speech, expulsion of -aliens, especially for political reasons, will become less frequent. -Expulsion will, however, never totally disappear, because it may well be -justified. Thus, for example, Prussia after the annexation of the -formerly Free Town of Frankfort-on-the-Main, was certainly justified in -expelling those individuals who, for the purpose of avoiding military -service in the Prussian Army, had by naturalisation become Swiss -citizens without giving up their residence at Frankfort. - -[Footnote 659: Thus in 1870, during the Franco-German war, the French -expelled all Germans from France, and the former South African Republic -expelled in 1899, during the Boer war, almost all British subjects. See -below, vol. II. § 100.] - -[Footnote 660: See details in Rivier, I. p. 312.] - -[Footnote 661: See Annuaire, XII. p. 223. Many of these causes, as -conviction for crimes, for instance, are certainly just causes, but -others are doubtful.] - -[Sidenote: Expulsion how effected.] - -§ 325. Expulsion is, in theory at least, not a punishment, but an -administrative measure consisting in an order of the Government -directing a foreigner to leave the country. Expulsion must therefore be -effected with as much forbearance and indulgence as the circumstances -and conditions of the case allow and demand, especially when compulsion -is meted out to a domiciled alien. And the home State of the expelled, -by its right of protection over its citizens abroad, may well insist -upon such forbearance and indulgence. But this is valid as regards the -first expulsion only. Should the expelled refuse to leave the territory -voluntarily or, after having left, return without authorisation, he may -be arrested, punished, and forcibly brought to the frontier. - -[Sidenote: Reconduction in Contradistinction to Expulsion.] - -§ 326. In many Continental States destitute aliens, foreign vagabonds, -suspicious aliens without papers of legitimation, alien criminals who -have served their punishment, and the like, are without any formalities -arrested by the police and reconducted to the frontier. There is no -doubt that the competence for such reconduction, which is often called -_droit de renvoi_, is an inference from the territorial supremacy of -every State, for there is no reason whatever why a State should not get -rid of such undesirable aliens as speedily as possible. But although -such reconduction is materially not much different from expulsion, it -nevertheless differs much from this in form, since expulsion is an order -to leave the country, whereas reconduction is forcible conveying away of -foreigners.[662] The home State of such reconducted aliens has the duty -to receive them, since, as will be remembered,[663] a State cannot -refuse to receive such of its subjects as are expelled from abroad. -Difficulties arise, however, sometimes concerning the reconduction of -such alien individuals as have lost their nationality through -long-continued absence[664] from home without having acquired another -nationality abroad. Such cases are a further example of the fact that -the very existence of stateless individuals is a blemish in Municipal as -well as International Law.[665] - -[Footnote 662: Rivier, I. p. 308, correctly distinguishes between -reconduction and expulsion, but Phillimore, I. § 364, seems to confound -them.] - -[Footnote 663: See above, § 294.] - -[Footnote 664: See above, § 302, No. 3.] - -[Footnote 665: It ought to be mentioned that many States have, either by -special treaties or in their treaties of commerce, friendship, and the -like, stipulated proper treatment of each other's destitute subjects on -each other's territory.] - - -IX - -EXTRADITION - - Hall, §§ 13 and 63--Westlake, I. pp. 241-251--Lawrence, §§ - 110-111--Phillimore, I. §§ 365-389D--Twiss, I. § 236--Halleck, I. - pp. 257-268--Taylor, §§ 205-211--Walker, § 19--Wharton, II. §§ - 268-282--Wheaton, §§ 115-121--Moore, IV. §§ 579-622--Bluntschli, - §§ 394-401--Hartmann, § 89--Heffter, § 63--Lammasch in - Holtzendorff, III. pp. 454-566--Liszt, § 33--Ullmann, §§ - 127-131--Bonfils, Nos. 455-481--Despagnet, Nos. - 276-286--Pradier-Fodéré, III. Nos. 1863-1893--Mérignhac, II. pp. - 732-777--Rivier, I. pp. 348-357--Nys, II. pp. 244-253--Calvo, II. - §§ 949-1071--Fiore, Code, Nos. 584-586--Martens, II. §§ - 91-98--Spear, "The Law of Extradition" (1879)--Lammasch, - "Auslieferungspflicht und Asylrecht" (1887)--Martitz, - "Internationale Rechtshilfe in Strafsachen," 2 vols. (1888 and - 1897)--Bernard, "Traité théorique et pratique de l'extradition," 2 - vols. (2nd ed. 1890)--Moore, "Treatise on Extradition" - (1891)--Hawley, "The Law of International Extradition" - (1893)--Clark, "The Law of Extradition" (3rd ed. 1903)--Biron and - Chalmers, "The Law and Practice of Extradition" (1903)--Piggott, - "Extradition" (1910)--Lammasch in R.G. III. (1896), pp. - 5-14--Diena in R.G. XII. (1905), pp. 516-544--See the French, - German, and Italian literature concerning extradition quoted by - Fauchille in Bonfils, No. 455. - -[Sidenote: Extradition no legal duty.] - -§ 327. Extradition is the delivery of a prosecuted individual to the -State on whose territory he has committed a crime by the State on whose -territory the criminal is for the time staying. Although Grotius[666] -holds that every State has the duty either to punish or to surrender to -the prosecuting State such individuals within its boundaries as have -committed a crime abroad, and although there is as regards the majority -of such cases an important interest of civilised mankind that this -should be done, this rule of Grotius has never been adopted by the -States and has, therefore, never become a rule of the Law of Nations. On -the contrary, States have always upheld their competence to grant asylum -to foreign individuals as an inference from their territorial supremacy, -those cases, of course, excepted which fall under stipulations of -special extradition treaties, if any. There is, therefore, no universal -rule of customary International Law in existence which commands[667] -extradition. - -[Footnote 666: II. c. 21, § 4.] - -[Footnote 667: Clarke, op. cit. pp. 1-15, tries to prove that a duty to -extradite criminals does exist, but the result of all his labour is that -he finds that the refusal of extradition is "a serious violation of the -moral obligations which exist between civilised States" (see p. 14). But -nobody has ever denied this as far as the ordinary criminal is -concerned. The question is only whether an international _legal_ duty -exists to surrender a criminal. And this _legal_ duty States have always -denied.] - -[Sidenote: Extradition Treaties how arisen.] - -§ 328. Since, however, modern civilisation categorically demands -extradition of criminals as a rule, numerous treaties have been -concluded between the several States stipulating the cases in which -extradition shall take place. According to these treaties, individuals -prosecuted for the more important crimes, political crimes excepted, are -actually always surrendered to the prosecuting State, if not punished -locally. But this solution of the problem of extradition is a product of -the nineteenth century only. Before the eighteenth century extradition -of ordinary criminals hardly ever occurred, although many States used -then frequently to surrender to each other political fugitives, -heretics, and even emigrants, either in consequence of special treaties -stipulating the surrender of such individuals, or voluntarily without -such treaties. Matters began to undergo a change in the eighteenth -century, for then treaties between neighbouring States frequently -stipulated extradition of ordinary criminals besides that of political -fugitives, conspirators, military deserters, and the like. Vattel (II. -§ 76) is able to assert in 1758 that murderers, incendiaries, and -thieves are regularly surrendered by neighbouring States to each other. -But general treaties of extradition between all the members of the -Family of Nations did not exist in the eighteenth century, and there was -hardly a necessity for such general treaties, since traffic was not so -developed as nowadays and fugitive criminals seldom succeeded in -reaching a foreign territory beyond that of a neighbouring State. When, -however, in the nineteenth century, with the appearance of railways and -Transatlantic steamships, transit began to develop immensely, criminals -used the opportunity to flee to distant foreign countries. It was then -and thereby that the conviction was forced upon the States of civilised -humanity that it was in their common interest to surrender ordinary -criminals regularly to each other. General treaties of extradition -became, therefore, a necessity, and the several States succeeded in -concluding such treaties with each other. There is no civilised State in -existence nowadays which has not concluded such treaties with the -majority of the other civilised States. And the consequence is that, -although no universal rule of International Law commands it, extradition -of criminals between States is an established fact based on treaties. -The present condition of affairs is, however, very unsatisfactory, since -there are many hundreds of treaties in existence which do not at all -agree in their details. What is required nowadays, and what will -certainly be realised in the near future, is a universal treaty of -extradition, one single treaty to which all the civilised States become -parties.[668] - -[Footnote 668: The Second Pan-American Conference of 1902 produced a -treaty of extradition which was signed by twelve States, namely, the -United States of America, Colombia, Costa Rica, Chili, San Domingo, -Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, and Nicaragua, -but this treaty has not been ratified; see the text in "Annuaire de la -Vie Internationale" (1908-9), p. 461.] - -[Sidenote: Municipal Extradition Laws.] - -§ 329. Some States, however, were unwilling to depend entirely upon the -discretion of their Governments as regards the conclusion of extradition -treaties and the procedure in extradition cases. They have therefore -enacted special Municipal Laws which enumerate those crimes for which -extradition shall be granted and asked in return, and which at the same -time regulate the procedure in extradition cases. These Municipal -Laws[669] furnish the basis for the conclusion of extradition treaties. -The first in the field with such an extradition law was Belgium in 1833, -which remained, however, for far more than a generation quite isolated. -It was not until 1870 that England followed the example given by -Belgium. English public opinion was for many years against extradition -treaties at all, considering them as a great danger to individual -liberty and to the competence of every State to grant asylum to -political refugees. This country possessed, therefore, before 1870 a few -extradition treaties only, which moreover were in many points -inadequate. But in 1870 the British Government succeeded in getting -Parliament to pass the Extradition Act.[670] This Act, which was amended -by another in 1873[671] and a third in 1895,[672] has furnished the -basis for extradition treaties of Great Britain with forty other -States.[673] Belgium enacted a new extradition law in 1874. Holland -enacted such a law in 1875, Luxemburg in the same year, Argentina in -1885, the Congo Free State in 1886, Peru in 1888, Switzerland in 1892. - -[Footnote 669: See Martitz, "Internationale Rechtshilfe," I. pp. -747-818, where the history of all these laws is sketched and their text -is printed.] - -[Footnote 670: 33 & 34 Vict. c. 52.] - -[Footnote 671: 36 & 37 Vict. c. 60.] - -[Footnote 672: 58 & 59 Vict. c. 33. On the history of extradition in -Great Britain before the Extradition Act, 1870, see Clarke, op. cit. pp. -126-166.] - -[Footnote 673: The full text of these treaties is printed by Clarke, as -well as Biron and Chalmers. Not to be confounded with extradition of -criminals to foreign States is extradition within the British Empire -from one part of the British dominions to another. This matter is -regulated by the Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 169).] - -Such States as possess no extradition laws and whose written -Constitution does not mention the matter, leave it to their Governments -to conclude extradition treaties according to their discretion. And in -these countries the Governments are competent to extradite an individual -even if no extradition treaty exists. - -[Sidenote: Object of Extradition.] - -§ 330. Since extradition is the delivery of an incriminated individual -to the State on whose territory he has committed a crime by the State on -whose territory he is for the time staying, the object of extradition -can be any individual, whether he is a subject of the prosecuting State, -or of the State which is required to extradite him, or of a third State. -Many States, however, as France and most other States of the European -continent, have adopted the principle never to extradite one of their -subjects to a foreign State, but themselves to punish subjects of their -own for grave crimes committed abroad. Other States, as Great Britain -and the United States, have not adopted this principle, and do extradite -such of their subjects as have committed a grave crime abroad. Thus -Great Britain surrendered in 1879 to Austria, where he was convicted and -hanged,[674] one Tourville, a British subject, who, after having -murdered his wife in the Tyrol, had fled home to England. And it must be -emphasised that the object of extradition is an individual who has -committed a crime abroad, whether or not he was during the commission of -the criminal act physically present on the territory of the State where -the crime was committed. Thus, in 1884, Great Britain surrendered one -Nillins to Germany, who, by sending from Southampton forged bills of -exchange to a merchant in Germany as payment for goods ordered, was -considered to have committed forgery and to have obtained goods by -false pretences in Germany.[675] - -[Footnote 674: This case is all the more remarkable, as (see 24 & 25 -Vict. c. 100, § 9) the criminal law of England extends over murder and -manslaughter committed abroad by English subjects, and as, according to -article 3 of the extradition treaty of 1873 between England and -Austria-Hungary, the contracting parties are in no case under obligation -to extradite their own subjects.] - -[Footnote 675: See Clarke, op. cit. pp. 177 and 262, who, however, -disapproves of this surrender.] - -A conflict between International and Municipal Law arises if a certain -individual must be extradited according to an extradition treaty, but -cannot be extradited according to the Municipal Law of the State from -which extradition is demanded. Thus in the case of Salvatore -Paladini,[676] whose extradition was demanded by the United States of -America from the Italian Government in 1888 for having passed -counterfeit money, Italian Municipal Law, which prohibits the -extradition of an Italian citizen, came into conflict with article 1 of -the Extradition Treaty of 1868 between Italy and the United States which -stipulates extradition of criminals without exempting nationals. For -this reason Italy refused to extradite Paladini. It is noteworthy that -the United States, although they do not any longer press for extradition -of Italian subjects who, after having committed a crime in the United -States have returned to Italy, nevertheless consider themselves bound by -the above-mentioned treaty of 1868 to extradite to Italy such American -subjects as have committed a crime in Italy. Therefore, when in 1910 the -Italian Government demanded from the United States extradition of one -Porter Charlton,[677] an American citizen, for having committed a murder -in Italy, extradition was granted. - -[Footnote 676: See Moore, IV. § 594, pp. 290-297.] - -[Footnote 677: See A.J. V. (1911), pp. 182-191.] - -[Sidenote: Extraditable Crimes.] - -§ 331. Unless a State is restricted by an extradition law, it can grant -extradition for any crime it thinks fit. And unless a State is bound by -an extradition treaty, it can refuse extradition for any crime. Such -States as possess extradition laws frame their extradition treaties -conformably therewith and specify in those treaties all those crimes for -which they are willing to grant extradition. And no person is to be -extradited whose deed is not a crime according to the Criminal Law of -the State which is asked to extradite, as well as of the State which -demands extradition. As regards Great Britain, the following are -extraditable crimes according to the Extradition Act of 1870:--Murder -and manslaughter; counterfeiting and uttering counterfeit money; forgery -and uttering what is forged; embezzlement and larceny; obtaining goods -or money by false pretences; crimes by bankrupts against bankruptcy -laws; fraud by a bailee, banker, agent, factor, trustee, or by a -director, or member, or public officer of any company; rape; abduction; -child stealing; burglary and housebreaking; arson; robbery with -violence; threats with intent to extort; piracy by the Law of Nations; -sinking or destroying a vessel at sea; assaults on board ship on the -High Seas with intent to destroy life or to do grievous bodily harm; -revolt or conspiracy against the authority of the master on board a ship -on the High Seas. The Extradition Acts of 1873 and 1906 added the -following crimes to the list:--Kidnapping, false imprisonment, perjury, -subornation of perjury, and bribery. - -Political criminals are, as a rule, not extradited,[678] and according -to many extradition treaties military deserters and such persons as have -committed offences against religion are likewise excluded from -extradition. - -[Footnote 678: See below, §§ 333-340.] - -[Sidenote: Effectuation and Condition of Extradition.] - -§ 332. Extradition is granted only if asked for, and after the -formalities have taken place which are stipulated in the treaties of -extradition and the extradition laws, if any. It is effected through -handing over the criminal by the police of the extraditing State to the -police of the prosecuting State. But it must be emphasised that, -according to most extradition treaties, it is a condition that the -extradited individual shall be tried and punished for those crimes -exclusively for which his extradition has been asked and granted, or -for those at least which the extradition treaty concerned -enumerates.[679] If, nevertheless, an extradited individual is tried and -punished for another crime, the extraditing State has a right of -intervention.[680] - -[Footnote 679: See Mettgenberg in the "Zeitschrift für internationales -Recht," XVIII. (1908), pp. 425-430.] - -[Footnote 680: It ought to be mentioned that the Institute of -International Law in 1880, at its meeting in Oxford (see Annuaire, V. p. -117), adopted a body of twenty-six rules concerning extradition.] - -An important question is whether, in case a criminal, who has succeeded -in escaping into the territory of another State, is erroneously handed -over, without the formalities of extradition having been complied with, -by the police of the local State to the police of the prosecuting State, -such local State can demand that the prosecuting State shall send the -criminal back and ask for his formal extradition. This question was -decided in the negative in February 1911 by the Court of Arbitration at -the Hague in the case of France _v._ Great Britain concerning Savarkar. -This British-Indian subject, who was prosecuted for high treason and -abatement of murder, and was being transported in the P. and O. boat -_Morea_ to India for the purpose of standing his trial there, escaped to -the shore on October 25, 1910, while the vessel was in the harbour of -Marseilles. He was, however, seized by a French policeman, who, -erroneously and without further formalities, reconducted him to the -_Morea_ with the assistance of individuals from the vessel who had -raised a hue-and-cry. Since Savarkar was _prima facie_ a political -criminal, France demanded that England should give him up and should -request his extradition in a formal way, but England refused to comply -with this demand, and the parties, therefore, agreed to have the -conflict decided by the Court of Arbitration at the Hague. The award, -while admitting that an irregularity had been committed by the -reconduction of Savarkar to the British vessel, decided, correctly, I -believe, in favour of Great Britain, asserting that there was no rule of -International Law imposing, in circumstances such as those which have -been set out above, any obligation on the Power which has in its custody -a prisoner, to restore him on account of a mistake committed by the -foreign agent who delivered him up to that Power.[681] It should be -mentioned that the French Government had been previously informed of the -fact that Savarkar would be a prisoner on board the _Morea_ while she -was calling at Marseilles, and had agreed to this. - -[Footnote 681: See Hamelin, "L'Affaire Savarkar" (Extrait du "Recueil -général de Jurisprudence, de Doctrine et de Législation coloniales," -1911), who defends the French view. The award of the Court of -Arbitration has been severely criticised by Baty in the _Law Magazine -and Review_, XXXVI. (1911), pp. 326-330; Kohler in Z.V. V. (1911), pp. -202-211; Strupp, "Zwei praktische Fälle aus dem Völkerrecht" (1911), pp. -12-26; Robin in R.G. XVIII. (1911), pp. 303-352; Hamel in R.I. 2nd Ser. -XIII. (1911), pp. 370-403.] - - -X - -PRINCIPLE OF NON-EXTRADITION OF POLITICAL CRIMINALS - - Westlake, I. pp. 247-248--Lawrence, § 111--Taylor, § 212--Wharton, - II. § 272--Moore, IV. § 604--Bluntschli, § 396--Hartmann, § - 89--Lammasch in Holtzendorff, III. pp. 485-510--Liszt, § - 33--Ullmann, § 129--Rivier, I. pp. 351-357--Nys, II. pp. - 253-256--Calvo, II. §§ 1034-1036--Martens, II. § 96--Bonfils, Nos. - 466-467--Pradier-Fodéré, III. Nos. 1871-1873--Mérignhac, II. pp. - 754-771--Soldan, "L'extradition des criminels politiques" - (1882)--Martitz, "Internationale Rechtshilfe in Strafsachen," vol. - II. (1897), pp. 134-707--Lammasch, "Auslieferungspflicht und - Asylrecht" (1887), pp. 203-355--Grivaz, "Nature et effets du - principe de l'asyle politique" (1895)--Piggott, "Extradition" - (1910), pp. 42-60--Scott in A.J. III. (1909), pp. 459-461. - -[Sidenote: How Non-extradition of Political Criminals became the Rule.] - -§ 333. Before the French Revolution[682] the term "political crime" was -unknown in either the theory or the practice of the Law of Nations. And -the principle of non-extradition of political criminals was likewise -non-existent. On the contrary, whereas extradition of ordinary -criminals was, before the eighteenth century at least, hardly ever -stipulated, treaties very often stipulated the extradition of -individuals who had committed such deeds as are nowadays termed -"political crimes," and such individuals were frequently extradited even -when no treaty stipulated it.[683] And writers in the sixteenth and -seventeenth centuries did not at all object to such practice on the part -of the States; on the contrary, they frequently approved of it.[684] It -is indirectly due to the French Revolution that matters gradually -underwent a change, since this event was the starting-point for the -revolt in the nineteenth century against despotism and absolutism -throughout the western part of the European continent. It was then that -the term "political crime" arose, and article 120 of the French -Constitution of 1793 granted asylum to foreigners exiled from their home -country "for the cause of liberty." On the other hand, the French -emigrants, who had fled from France to escape the Reign of Terror, found -an asylum in foreign States. However, the modern principle of -non-extradition of political criminals even then did not conquer the -world. Until 1830 political criminals frequently were extradited. But -public opinion in free countries began gradually to revolt against such -extradition, and Great Britain was its first opponent. The fact that -several political fugitives were surrendered by the Governor of -Gibraltar to Spain created a storm of indignation in Parliament in 1815, -where Sir James Mackintosh proclaimed the principle that no nation ought -to refuse asylum to political fugitives. And in 1816 Lord Castlereagh -declared that there could be no greater abuse of the law than by -allowing it to be the instrument of inflicting punishment on foreigners -who had committed political crimes only. The second in the field was -Switzerland, the asylum for many political fugitives from neighbouring -countries, when, after the final defeat of Napoleon, the reactionary -Continental monarchs refused the introduction of constitutional reforms -which were demanded by their peoples. And although, in 1823, Switzerland -was forced by threats of the reactionary leading Powers of the Holy -Alliance to restrict somewhat the asylum afforded by her to individuals -who had taken part in the unsuccessful political revolts in Naples and -Piedmont, the principle of non-extradition went on fighting its way. The -question as to that asylum was discussed with much passion in the press -of Europe. And although the principle of non-extradition was far from -becoming universally recognised, that discussion indirectly fostered its -growth. A practical proof thereof is that in 1830 even Austria and -Prussia, two of the reactionary Powers of that time, refused Russia's -demand for extradition of fugitives who had taken part in the Polish -Revolution of that year. And another proof thereof is that at about the -same time, in 1829, a celebrated dissertation[685] by a Dutch jurist -made its appearance, in which the principle of non-extradition of -political criminals was for the first time defended with juristic -arguments and on a juristic basis. - -[Footnote 682: I follow in this section for the most part the summary of -the facts given by Martitz, op. cit. II. pp. 134-184.] - -[Footnote 683: Martitz, op. cit. II. p. 177, gives a list of important -extraditions of political criminals which took place between 1648 and -1789.] - -[Footnote 684: So Grotius, II. c. 21, § 5, No. 5.] - -[Footnote 685: H. Provó Kluit, "De deditione profugorum."] - -On the other hand, a reaction set in in 1833, when Austria, Prussia, and -Russia concluded treaties which remained in force for a generation, and -which stipulated that henceforth individuals who had committed crimes of -high treason and _lèse-majesté_, or had conspired against the safety of -the throne and the legitimate Government, or had taken part in a revolt, -should be surrendered to the State concerned. The same year, however, is -epoch-making in favour of the principle of non-extradition of political -criminals, for in 1833 Belgium enacted her celebrated extradition law, -the first of its kind, being the very first Municipal Law which -expressly interdicted the extradition of foreign political criminals. As -Belgium, which had seceded from the Netherlands in 1830 and became -recognised and neutralised by the Powers in 1831, owed her very -existence to revolt, she felt the duty of making it a principle of her -Municipal Law to grant asylum to foreign political fugitives, a -principle which was for the first time put into practice in the treaty -of extradition concluded in 1834 between Belgium and France. The latter, -which to the present day has no municipal extradition law, has -nevertheless henceforth always in her extradition treaties with other -Powers stipulated the principle of non-extradition of political -criminals. And the other Powers followed gradually. Even Russia had to -give way, and since 1867 this principle is to be found in all -extradition treaties of Russia with other Powers, that with Spain of -1888 excepted. It is due to the stern attitude of Great Britain, -Switzerland, Belgium, France, and the United States that the principle -has conquered the world. These countries, in which individual liberty is -the very basis of all political life, and constitutional government a -political dogma of the nation, watched with abhorrence the methods of -government of many other States between 1815 and 1860. These Governments -were more or less absolute and despotic, repressing by force every -endeavour of their subjects to obtain individual liberty and a share in -the government. Thousands of the most worthy citizens and truest -patriots had to leave their country for fear of severe punishment for -political crimes. Great Britain and the other free countries felt in -honour bound not to surrender such exiled patriots to the persecution of -their Governments, but to grant them an asylum. - -[Sidenote: Difficulty concerning the Conception of Political Crime.] - -§ 334. Although the principle became and is generally[686] recognised -that political criminals shall not be extradited, serious difficulties -exist concerning the conception of "political crime." Such conception is -of great importance, as the extradition of a criminal may depend upon -it. It is unnecessary here to discuss the numerous details of the -controversy. It suffices to state that whereas many writers call such -crime "political" as was committed from a political motive, others call -"political" any crime committed for a political purpose; again, others -recognise such crime only as "political" as was committed from a -political motive and at the same time for a political purpose; and, -thirdly, some writers confine the term "political crime" to certain -offences against the State only, as high treason, _lèse-majesté_, and -the like.[687] To the present day all attempts have failed to formulate -a satisfactory conception of the term, and the reason of the thing will, -I believe, for ever exclude the possibility of finding a satisfactory -conception and definition.[688] The difficulty is caused through the -so-called "relative political crimes" or _délits complexes_--namely, -those complex cases in which the political offence comprises at the same -time[689] an ordinary crime, such as murder, arson, theft, and the like. -Some writers deny categorically that such complex crimes are political; -but this opinion is wrong and dangerous, since indeed many honourable -political criminals would have to be extradited in consequence thereof. -On the other hand, it cannot be denied that many cases of complex -crimes, although the deed may have been committed from a political -motive or for a political purpose, are such as ought not to be -considered political. Such cases have roused the indignation of the -whole civilised world, and have indeed endangered the very value of the -principle of non-extradition of political criminals. Three practical -attempts have therefore been made to deal with such complex crimes -without violating this principle. - -[Footnote 686: See, however, below, § 340, concerning the reactionary -movement in the matter.] - -[Footnote 687: See Mettgenberg, "Die Attentatsklausel im deutschen -Auslieferungsrecht" (1906), pp. 61-76, where a survey of the different -opinions is given.] - -[Footnote 688: According to Stephen, "History of the Criminal Law in -England," vol. II. p. 71, political crimes are such as are identical to -and form a part of political disturbances.] - -[Footnote 689: The problem came twice before the English courts; see _Ex -parte_ Castione, L.R. [1891] 1 Q.B. 149, and _In re_ Meunier, L.R. -[1894] 2 Q.B. 415. In the case of Castione, a Swiss who had taken part -in a revolutionary movement in the canton of Ticino and had incidentally -shot a member of the Government, the Court refused extradition because -the crime was considered to be political. On the other hand, in the case -of Meunier, a French anarchist who was prosecuted for having caused two -explosions in France, one of which resulted in the death of two -individuals, the extradition was granted because the crime was not -considered to be political.] - -[Sidenote: The so-called Belgian _Attentat_ Clause.] - -§ 335. The first attempt was the enactment of the so-called _attentat_ -clause by Belgium in 1856,[690] following the case of Jacquin in 1854. A -French manufacturer named Jules Jacquin, domiciled in Belgium, and a -foreman of his factory named Célestin Jacquin, who was also a Frenchman, -tried to cause an explosion on the railway line between Lille and Calais -with the intention of murdering the Emperor Napoleon III. France -requested the extradition of the two criminals, but the Belgian Court of -Appeal had to refuse the surrender on account of the Belgian extradition -law interdicting the surrender of political criminals. To provide for -such cases in the future, Belgium enacted in 1856 a law amending her -extradition law and stipulating that murder of the head of a foreign -Government or of a member of his family should not be considered a -political crime. Gradually all European States, with the exception of -England and Switzerland, have adopted that _attentat_ clause, and a -great many Continental writers urge its adoption by the whole of the -civilised world.[691] - -[Footnote 690: See details in Martitz, op. cit. II. p. 372.] - -[Footnote 691: See Mettgenberg, op. cit. pp. 109-114.] - -[Sidenote: The Russian Project of 1881.] - -§ 336. Another attempt to deal with complex crimes without detriment to -the principle of non-extradition of political criminals was made by -Russia in 1881. Influenced by the murder of the Emperor Alexander II. -in that year, Russia invited the Powers to hold an International -Conference at Brussels for the consideration of the proposal that -thenceforth no murder or attempt to murder ought to be considered as a -political crime. But the Conference did not take place, since Great -Britain as well as France declined to take part in it.[692] Thus the -development of things had come to a standstill, many States having -adopted, others declining to adopt, the Belgian clause, and the Russian -proposal having fallen through. - -[Footnote 692: See details in Martitz, op. cit. II. p. 479.] - -[Sidenote: The Swiss Solution of the Problem in 1892.] - -§ 337. Eleven years later, in 1892, Switzerland attempted a solution of -the problem on a new basis. In that year Switzerland enacted an -extradition law whose article 10 recognises the non-extradition of -political criminals, but at the same time lays down the rule that -political criminals shall nevertheless be surrendered in case the chief -feature of the offence wears more the aspect of an ordinary than of a -political crime, and that the decision concerning the extraditability of -such criminals rests with the "Bundesgericht," the highest Swiss Court -of Justice. This Swiss rule contains a better solution of the problem -than the Belgian _attentat_ clause in so far as it allows the -circumstances of the special case to be taken into consideration. And -the fact that the decision is taken out of the hands of the Government -and transferred to the highest Court of the country, denotes likewise a -remarkable progress.[693] For the Government cannot now be blamed -whether extradition is granted or refused, the decision of an -independent Court of Justice being a certain guarantee that an impartial -view of the circumstances of the case has been taken.[694] - -[Footnote 693: See Langhard, "Das Schweizerische Auslieferungsrecht" -(1910), where all the cases are discussed which have come before the -Court since 1892.] - -[Footnote 694: It ought to be mentioned that the Institute of -International Law at its meeting at Geneva in 1892 (see Annuaire, XII. -p. 182) adopted four rules concerning extradition of political -criminals, but I do not think that on the whole these rules give much -satisfaction.] - -[Sidenote: Rationale for the Principle of Non-extradition of Political -Criminals.] - -§ 338. The numerous attempts[695] against the lives of heads of States -and the frequency of anarchistic crimes have shaken the value of the -principle of non-extradition of political criminals in the opinion of -the civilised world as illustrated by the three practical attempts -described above to meet certain difficulties. It is, consequently, no -wonder that some writers[696] plead openly and directly for the -abolition of this principle, maintaining that it was only the product of -abnormal times and circumstances such as were in existence during the -first half of the nineteenth century, and that with their disappearance -the principle is likely to do more harm than good. And indeed it cannot -be denied that the application of the principle in favour of some -criminals, such as anarchistic[697] murderers and bomb-throwers, could -only be called an abuse. But the question is whether, apart from such -exceptional cases, the principle itself is still to be considered as -justified or not. - -[Footnote 695: Not less than nineteen of these attempts have been -successful since 1850, as the following formidable list shows:-- - - Charles II., Duke of Parma, murdered on March 26, 1854. - Prince Danilo of Montenegro, " August 14, 1860. - President Abraham Lincoln, U.S.A., " April 14, 1865. - Prince Michael of Servia, " June 10, 1868. - President Balta of Peru, " July, 1872. - President Moreno of Ecuador, " August 6, 1872. - Sultan Abdul Assis of Turkey, " June 4, 1876. - Emperor Alexander II. of Russia, " March 13, 1881. - President Garfield, U.S.A., " July 2, 1881. - President Carnot of France, " June 24, 1894. - Shah Nazr-e-Din of Persia, " May 1, 1896. - Empress Elizabeth of Austria, " September 10, 1898. - King Humbert I. of Italy, " July 30, 1900. - President McKinley, U.S.A., " September 6, 1901. - King Alexander I. of Servia and - Queen Draga, " June 10, 1903. - King Carlos I. of Portugal and - the Crown Prince, " February 15, 1908. - President Caceres of San Domingo, " November 19, 1911.] - -[Footnote 696: See, for instance, Rivier, I. p. 354, and Scott in A.J. -III. (1909), p. 459.] - -[Footnote 697: "... the party with whom the accused is identified ... -namely the party of anarchy, is the enemy of all governments. Their -efforts are directed primarily against the general body of citizens. -They may, secondarily and incidentally, commit offences against some -particular government, but anarchist offences are mainly directed -against private citizens." (From the judgment of Cave, J. _In re_ -Meunier, L.R. [1894] 2 Q.B. 419.)--See also Diena in R.G. II. (1905), -pp. 306-336.] - -Without doubt the answer must be in the affirmative. I readily admit -that every political crime is by no means an honourable deed, which as -such deserves protection. Still, political crimes are committed by the -best of patriots, and, what is of more weight, they are in many cases a -consequence of oppression on the part of the respective Governments. -They are comparatively infrequent in free countries, where there is -individual liberty, where the nation governs itself, and where, -therefore, there are plenty of legal ways to bring grievances before the -authorities. A free country can never agree to surrender foreigners to -their prosecuting home State for deeds done in the interest of the same -freedom and liberty which the subjects of such free country enjoy. For -individual liberty and self-government of nations are demanded by modern -civilisation, and their gradual realisation over the whole globe is -conducive to the welfare of the human race. - -Political crimes may certainly be committed in the interest of reaction -as well as in the interest of progress, and reactionary political -criminals may have occasion to ask for asylum as well as progressive -political criminals. The principle of non-extradition of political -criminals indeed extends its protection over the former too, and this is -the very point where the value of the principle reveals itself. For no -State has a right to interfere with the internal affairs of another -State, and, if a State were to surrender reactionary political criminals -but not progressive ones, the prosecuting State of the latter could -indeed complain and consider the refusal of extradition an unfriendly -act. If, however, non-extradition is made a general principle which -finds its application in favour of political criminals of every kind, no -State can complain if extradition is refused. Have not reactionary -States the same faculty of refusing the extradition of reactionary -political criminals as free States have of refusing the extradition of -progressive political criminals? - -Now, many writers agree upon this point, but maintain that such -arguments meet the so-called purely political crimes only, and not the -relative or complex political crimes, and they contend, therefore, that -the principle of non-extradition ought to be restricted to the former -crimes only. But to this I cannot assent. No revolt happens without such -complex crimes taking place, and the individuals who commit them may -indeed deserve the same protection as other political criminals. And, -further, although I can under no circumstances approve of murder, can -never sympathise with a murderer, and can never pardon his crime, it may -well be the case that the murdered official or head of a State has by -inhuman cruelty and oppression himself whetted the knife which cut short -his span of life. On the other hand, the mere fact that a crime was -committed for a political purpose may well be without any importance in -comparison with its detestability and heinousness. Attempts on heads of -States, such, for example, as the murders of Presidents Lincoln and -Carnot or of Alexander II. of Russia and Humbert of Italy, are as a -rule, and all anarchistic crimes are without any exception, crimes of -that kind. Criminals who commit such crimes ought under no circumstances -to find protection and asylum, but ought to be surrendered for the -purpose of receiving their just and appropriate punishment. - -[Sidenote: How to avoid Misapplication of the Principle of -Non-extradition of Political Criminals.] - -§ 339. The question, however, is how to sift the chaff from the wheat, -how to distinguish between such political criminals as deserve an asylum -and such as do not. The difficulties are great and partly insuperable as -long as we do not succeed in finding a satisfactory conception of the -term "political crime." But such difficulties are only partly, not -wholly, insuperable. The step taken by the Swiss extradition law of 1892 -is so far in advance as to meet a great many of the difficulties. There -is no doubt that the adoption of the Swiss rule by all the other -civilised States would improve matters more than the universal adoption -of the so-called Belgian _attentat_ clause. The fact that according to -Swiss law each case of complex political crime is unravelled and obtains -the verdict of an independent Court according to the very circumstances, -conditions, and requirements under which it occurred, is of the greatest -value. It enables every case to be met in such a way as it deserves, -without compromising the Government, and without sacrificing the -principle of non-extradition of political criminals as a valuable rule. -I cannot support the charge made by some writers[698] that the Swiss law -is inadequate because it does not give criteria for the guidance of the -Court in deciding whether or no extradition for complex crimes should be -granted. In my opinion, the very absence of such criteria proves the -superiority of the Swiss clause to the Belgian _attentat_ clause. On the -one hand, the latter is quite insufficient, for it restricts its -stipulations to murder of heads of States and members of their families -only. But I see no reason why individuals guilty of any murder--as -provided by the Russian proposal--or who have committed other crimes, -such as arson, theft, and the like, should not be surrendered in case -the political motive or purpose of the crime is of no importance in -comparison with the crime itself. On the other hand, the Belgian clause -goes too far, since exceptional cases of murder of heads of States from -political motives or for political purposes might occur which do not -deserve extradition. The Swiss clause, however, with its absence of -fixed distinctions between such complex crimes as are extraditable, and -such as are not, permits the consideration of the circumstances, -conditions, and requirements under which a complex crime was committed. -It is true that the responsibility of the Court of Justice which has to -decide whether such a complex crime is extraditable is great. But it is -to be taken for granted that such Court will give its decision with -impartiality, fairness, and justice. And it need not be feared that such -Court will grant asylum to a murderer, incendiary, and the like, unless -convinced that the deed was really political. - -[Footnote 698: See, for instance, Martitz, op. cit. II. pp. 533-539.] - -[Sidenote: Reactionary Extradition Treaties.] - -§ 340. Be that as it may, the present condition of matters is a danger -to the very principle of non-extradition of political criminals. Under -the influence of the excitement caused by numerous criminal attempts in -the last quarter of the nineteenth century, a few treaties have already -been concluded which make a wide breach in this principle. It is Russia -which is leading the reaction. This Power in 1885 concluded treaties -with Prussia and Bavaria which stipulate the extradition of all -individuals who have made an attack on the life, the body, or the -honour[699] of a monarch, or of a member of his family, or who have -committed any kind of murder or attempt to murder. And the extradition -treaty between Russia and Spain of 1888 goes even further and abandons -the principle of non-extradition of political criminals altogether. -Fortunately, the endeavour of Russia to abolish this principle -altogether has not succeeded. In her extradition treaty with Great -Britain of 1886 she had to adopt it without any restriction, and in her -extradition treaties with Portugal of 1887, with Luxemburg of 1892, and -with the United States and Holland of 1893, she had to adopt it with a -restrictive clause similar to the Belgian _attentat_ clause. - -[Footnote 699: Thus, even for _lèse majesté_ extradition must be -granted.] - - - - -PART III - -ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS - - - - -CHAPTER I - -HEADS OF STATES, AND FOREIGN OFFICES - - -I - -POSITION OF HEADS OF STATES ACCORDING TO INTERNATIONAL LAW - - Hall, § 97--Phillimore, II. §§ 101 and 102--Bluntschli, §§ - 115-125--Holtzendorff in Holtzendorff, II. pp. 77-81--Ullmann, § - 40--Rivier, I. § 32--Nys, II. pp. 325-329--Fiore, II. No. - 1097--Bonfils, No. 632--Mérignhac, II. pp. 294-305--Bynkershoek, - "De foro legatorum" (1721), c. III. § 13. - -[Sidenote: Necessity of a Head for every State.] - -§ 341. As a State is an abstraction from the fact that a multitude of -individuals live in a country under a Sovereign Government, every State -must have a head as its highest organ, which represents it within and -without its borders in the totality of its relations. Such head is the -monarch in a monarchy and a president or a body of individuals, as the -Bundesrath of Switzerland, in a republic. The Law of Nations prescribes -no rules as regards the kind of head a State may have. Every State is, -naturally, independent regarding this point, possessing the faculty of -adopting any Constitution it likes and of changing such Constitution -according to its discretion. Some kind or other of a head of the State -is, however, necessary according to International Law, as without a head -there is no State in existence, but anarchy. - -[Sidenote: Recognition of Heads of States.] - -§ 342. In case of the accession of a new head of a State, other States -are as a rule notified. The latter usually recognise the new head -through some formal act, such as a congratulation. But neither such -notification nor recognition is strictly necessary according to -International Law, as an individual becomes head of a State, not through -the recognition of other States, but through Municipal Law. Such -notification and recognition are, however, of legal importance. For -through notification a State declares that the individual concerned is -its highest organ, and has by Municipal Law the power to represent the -State in the totality of its international relations. And through -recognition the other States declare that they are ready to negotiate -with such individual as the highest organ of his State. But recognition -of a new head by other States is in every respect a matter of -discretion. Neither has a State the right to demand from other States -recognition of its new head, nor has any State a right to refuse such -recognition. Thus Russia, Austria, and Prussia refused until 1848 -recognition to Isabella, Queen of Spain, who had come to the throne as -an infant in 1833. But, practically, in the long run recognition cannot -be withheld, for without it international intercourse is impossible, and -States with self-respect will exercise retorsion if recognition is -refused to the heads they have chosen. Thus, when, after the unification -of Italy in 1861, Mecklenburg and Bavaria refused the recognition of -Victor Emanuel as King of Italy, Count Cavour revoked the _exequatur_ of -the consuls of these States in Italy. - -But it must be emphasised that recognition of a new head of a State by -no means implies the recognition of such head as the legitimate head of -the State in question. Recognition is in fact nothing else than the -declaration of other States that they are ready to deal with a certain -individual as the highest organ of the particular State, and the -question remains totally undecided whether such individual is or is not -to be considered the legitimate head of that State. - -[Sidenote: Competence of Heads of States.] - -§ 343. The head of a State, as its chief organ and representative in -the totality of its international relations, acts for his State in the -latter's international intercourse, with the consequence that all his -legally relevant international acts are considered acts of his State. -His competence to perform such acts is termed _jus repraesentationis -omnimodae_. It comprises in substance chiefly: reception and mission of -diplomatic agents and consuls, conclusion of international treaties, -declaration of war, and conclusion of peace. But it is a question of the -special case, how far this competence is independent of Municipal Law. -For heads of States exercise this competence for their States and as the -latter's representatives, and not in their own right. If a head of a -State should, for instance, ratify a treaty without the necessary -approval of his Parliament, he would go beyond his powers, and therefore -such treaty would not be binding upon his State.[700] - -[Footnote 700: See below, § 497.] - -On the other hand, this competence is certainly independent of the -question whether a head of a State is the legitimate head or a usurper. -The mere fact that an individual is for the time being the head of a -State makes him competent to act as such head, and his State is legally -bound by his acts. It may, however, be difficult to decide whether a -certain individual is or is not the head of a State, for after a -revolution some time always elapses before matters are settled. - -[Sidenote: Heads of States Objects of the Law of Nations.] - -§ 344. Heads of States are never subjects[701] of the Law of Nations. -The position a head of a State has according to International Law is due -to him, not as an individual, but as the head of his State. His position -is derived from international rights and duties of his State, and not -from international rights of his own. Consequently, all rights possessed -by heads of States abroad are not international rights, but rights -which must be granted to them by the Municipal Law of the foreign State -on whose territory such foreign heads of States are temporarily staying, -and such rights must be granted in compliance with international rights -of the home States of the respective heads. Thus, heads of States are -not subjects but objects of International Law, and in this regard are -like any other individual. - -[Footnote 701: But Heffter (§ 48) maintains the contrary, and Phillimore -(II. § 100) designates monarchs _mediately and derivatively_ as subjects -of International Law. The matter is treated in detail above, §§ 13 and -288-290; see also below, § 384.] - -[Sidenote: Honours and Privileges of Heads of States.] - -§ 345. All honours and privileges of heads of States due to them by -foreign States are derived from the fact that dignity is a recognised -quality of States as members of the Family of Nations and International -Persons.[702] Concerning such honours and privileges, International Law -distinguishes between monarchs and heads of republics. This distinction -is the necessary outcome of the fact that the position of monarchs -according to the Municipal Law of monarchies is totally different from -the position of heads of republics according to the Municipal Law of the -republics. For monarchs are sovereigns, but heads of republics are not. - -[Footnote 702: See above, § 121.] - - -II - -MONARCHS - - Vattel, I. §§ 28-45; IV. § 108--Hall, § 49--Lawrence, § - 105--Phillimore, II. §§ 108-113--Taylor, § 129--Moore, II. § - 250--Bluntschli, §§ 126-153--Heffter, §§ 48-57--Ullmann, §§ - 41-42--Rivier, I. § 33--Nys, II. pp. 280-296--Calvo, III. §§ - 1454-1479--Fiore, II. Nos. 1098-1102--Bonfils, Nos. - 633-647--Mérignhac, II. pp. 94-105--Pradier-Fodéré, III. Nos. - 1564-1591. - -[Sidenote: Sovereignty of Monarchs.] - -§ 346. In every monarchy the monarch appears as the representative of -the sovereignty of the State and thereby becomes a Sovereign himself, a -fact which is recognised by International Law. And the difference -between the Municipal Laws of the different States regarding this point -matters in no way. Consequently, International Law recognises all -monarchs as equally sovereign, although the difference between the -constitutional positions of monarchs is enormous, if looked upon in the -light of the rules laid down by the Constitutional Laws of the different -States. Thus, the Emperor of Russia, whose powers are very wide, and the -King of England, who is sovereign in Parliament only, and whose powers -are therefore very much restricted, are indifferently sovereign -according to International Law. - -[Sidenote: Consideration due to Monarchs at home.] - -§ 347. Not much need be said as regards the consideration due to a -monarch from other States when within the boundaries of his own State. -Foreign States have to give him his usual and recognised predicates[703] -in all official communications. Every monarch must be treated as a peer -of other monarchs, whatever difference in title and actual power there -may be between them. - -[Footnote 703: Details as regards the predicates of monarchs are given -above, § 119.] - -[Sidenote: Consideration due to Monarchs abroad.] - -§ 348. As regards, however, the consideration due to a monarch abroad -from the State on whose territory he is staying in time of peace and -with the consent and the knowledge of the Government, details must -necessarily be given. The consideration due to him consists in honours, -inviolability, and exterritoriality. - -(1) In consequence of his character of Sovereign, his home State has the -right to demand that certain ceremonial honours be rendered to him, the -members of his family, and the members of his retinue. He must be -addressed by his usual predicates. Military salutes must be paid to him, -and the like. - -(2) As his person is sacrosanct, his home State has a right to insist -that he be afforded special protection as regards personal safety, the -maintenance of personal dignity, and the unrestrained intercourse with -his Government at home. Every offence against him must be visited with -specially severe penalties. On the other hand, he must be exempt from -every kind of criminal jurisdiction. The wife of a Sovereign must be -afforded the same protection and exemption. - -(3) He must be granted so-called exterritoriality conformably with the -principle: "_Par in parem non habet imperium_," according to which one -Sovereign cannot have any power over another Sovereign. He must, -therefore, in every point be exempt from taxation, rating, and every -fiscal regulation, and likewise from civil jurisdiction, except when he -himself is the plaintiff.[704] The house where he has taken his -residence must enjoy the same exterritoriality as the official residence -of an ambassador; no policeman or other official must be allowed to -enter it without his permission. Even if a criminal takes refuge in such -residence, the police must be prevented from entering it, although, if -the criminal's surrender is deliberately refused, the Government may -request the recalcitrant Sovereign to leave the country and then arrest -the criminal. If a foreign Sovereign has real property in a country, -such property is under the latter's jurisdiction. But as soon as such -Sovereign takes his residence on the property, it must become -exterritorial for the time being. Further, a Sovereign staying in a -foreign country must be allowed to perform all his own governmental acts -and functions, except when his country is at war with a third State and -the State in which he is staying remains neutral. And, lastly, a -Sovereign must be allowed, within the same limits as at home, to -exercise civil jurisdiction over the members of his retinue. In former -times even criminal jurisdiction over the members of his suite was very -often claimed and conceded, but this is now antiquated.[705] The wife -of a Sovereign must likewise be granted exterritoriality, but not other -members of a Sovereign's family.[706] - -[Footnote 704: See above, § 115, and the cases there quoted; see also -Phillimore, II. § 113A, and Loening, "Die Gerichtsbarkeit über fremde -Staaten und Souveräne" (1903).] - -[Footnote 705: A celebrated case happened on November 10, 1656, in -France, when Christina, Queen of Sweden, although she had already -abdicated, sentenced her grand equerry, Monaldeschi, to death, and had -him executed by her bodyguard.] - -[Footnote 706: See Rivier, I. p. 421, and Bluntschli, § 154; but, -according to Bluntschli, exterritoriality need not in strict law be -granted even to the wife of a Sovereign.] - -However, exterritoriality is in the case of a foreign Sovereign, as in -any other case, a fiction only, which is kept up for certain purposes -within certain limits. Should a Sovereign during his stay within a -foreign State abuse his privileges, such State is not obliged to bear -such abuse tacitly and quietly, but can request him to leave the -country. And when a foreign Sovereign commits acts of violence or such -acts as endanger the internal or external safety of the State, the -latter can put him under restraint to prevent further acts of the same -kind, but must at the same time bring him as speedily as possible to the -frontier. - -[Sidenote: The Retinue of Monarchs abroad.] - -§ 349. The position of individuals who accompany a monarch during his -stay abroad is a matter of some dispute. Several publicists maintain -that the home State can claim the privilege of exterritoriality as well -for members of his suite as for the Sovereign himself, but others deny -this.[707] I believe that the opinion of the former is correct, since I -cannot see any reason why a Sovereign abroad should as regards the -members of his suite be in an inferior position to a diplomatic -envoy.[708] - -[Footnote 707: See Bluntschli, § 154, and Hall, § 49, in -contradistinction to Martens, I. § 83.] - -[Footnote 708: See below, §§ 401-405.] - -[Sidenote: Monarchs travelling _incognito_.] - -§ 350. Hitherto only the case where a monarch is staying in a foreign -country with the official knowledge of the latter's Government has been -discussed. Such knowledge may be held in the case of a monarch -travelling _incognito_, and he enjoys then the same privileges as if -travelling not _incognito_. The only difference is that many ceremonial -observances, which are due to a monarch, are not rendered to him when -travelling _incognito_. But the case may happen that a monarch is -travelling in a foreign country _incognito_ without the latter's -Government having the slightest knowledge thereof. Such monarch cannot -then of course be treated otherwise than as any other foreign -individual; but he can at any time make known his real character and -assume the privileges due to him. Thus the late King William of Holland, -when travelling _incognito_ in Switzerland in 1873, was condemned to a -fine for some slight contravention, but the sentence was not carried -out, as he gave up his _incognito_. - -[Sidenote: Deposed and Abdicated Monarchs.] - -§ 351. All privileges mentioned must be granted to a monarch only as -long as he is really the head of a State. As soon as he is deposed or -has abdicated, he is no longer a Sovereign. Therefore in 1870 and 1872 -the French Courts permitted, because she was deposed, a civil action -against Queen Isabella of Spain, then living in Paris, for money due to -the plaintiffs. Nothing, of course, prevents the Municipal Law of a -State from granting the same privileges to a foreign deposed or -abdicated monarch as to a foreign Sovereign, but the Law of Nations does -not exact any such courtesy. - -[Sidenote: Regents.] - -§ 352. All privileges due to a monarch are also due to a Regent, at home -or abroad, whilst he governs on behalf of an infant, or of a King who is -through illness incapable of exercising his powers. And it matters not -whether such Regent is a member of the King's family and a Prince of -royal blood or not. - -[Sidenote: Monarchs in the service or subjects of Foreign Powers.] - -§ 353. When a monarch accepts any office in a foreign State, when, for -instance, he serves in a foreign army, as the monarchs of the small -German States have formerly frequently done, he submits to such State as -far as the duties of the office are concerned, and his home State -cannot claim any privileges for him that otherwise would be due to him. - -When a monarch is at the same time a subject of another State, -distinction must be made between his acts as a Sovereign, on the one -hand, and his acts as a subject, on the other. For the latter, the State -whose subject he is has jurisdiction over him, but not for the former. -Thus, in 1837, the Duke of Cumberland became King of Hanover, but at the -same time he was by hereditary title an English Peer and therefore an -English subject. And in 1844, in the case _Duke of Brunswick_ v. _King -of Hanover_,[709] the Master of the Rolls held that the King of Hanover -was liable to be sued in the Courts of England in respect of any acts -done by him as an English subject. - -[Footnote 709: 6 Beavan, 1; 2 House of Lords Cases, 1; see also -Phillimore, II. § 109.] - - -III - -PRESIDENTS OF REPUBLICS - - Bluntschli, § 134--Stoerk in Holtzendorff, II. p. 661--Ullmann, § - 42--Rivier, I. § 33--Martens, I. § 80--Walther, "Das Staatshaupt - in den Republiken" (1907), pp. 190-204. - -[Sidenote: Presidents not Sovereigns.] - -§ 354. In contradistinction to monarchies, in republics the people -itself, and not a single individual, appears as the representative of -the sovereignty of the State, and accordingly the people styles itself -the Sovereign of the State. And it will be remembered that the head of a -republic may consist of a body of individuals, such as the Bundesrath in -Switzerland. But in case the head is a President, as in France and the -United States of America, such President represents the State, at least -in the totality of its international relations. He is, however, not a -Sovereign, but a citizen and subject of the very State whose head he is -as President. - -[Sidenote: Position of Presidents in general.] - -§ 355. Consequently, his position at home and abroad cannot be compared -with that of monarchs, and International Law does not empower his home -State to claim for him the same, but only similar, consideration as that -due to a monarch. Neither at home nor abroad, therefore, does a -president of a republic appear as a peer of monarchs. Whereas all -monarchs are in the style of the Court phraseology considered as though -they were members of the same family, and therefore address each other -in letters as "my brother," a president of a republic is usually -addressed in letters from monarchs as "my friend." His home State can -certainly at home and abroad claim such honours for him as are due to -its dignity, but no such honours as must be granted to a Sovereign -monarch. - -[Sidenote: Position of Presidents abroad.] - -§ 356. As to the position of a president when abroad, writers on the Law -of Nations do not agree. Some[710] maintain that, since a president is -not a Sovereign, his home State can never claim for him the same -privileges as for a monarch, and especially that of exterritoriality. -Others[711] make a distinction whether a president is staying abroad in -his official capacity as head of a State or for his private purposes, -and they maintain that his home State could only in the first case claim -exterritoriality for him. Others[712] again will not admit any -difference in the position of a president abroad from that of a monarch -abroad. How the States themselves think as regards the question of the -exterritoriality of presidents of republics abroad cannot be -ascertained, since to my knowledge no case has hitherto occurred in -practice from which a conclusion may be drawn. But practice seems to -have settled the question of ceremonial honours due to a president -officially abroad; they are such as correspond to the rank of his home -State, and not such as are due to a monarch. As regards -exterritoriality, I believe that future contingencies will create the -practice on the part of the States of granting this privilege to -presidents and members of their suite as in the case of monarchs. I -cannot see that there is any danger in such a grant. And nobody can deny -that, if exterritoriality is not granted, all kinds of friction and even -conflicts might arise. Although not Sovereigns, presidents of republics -fill for the time being a sublime office, and the grant of -exterritoriality to them is a tribute paid to the dignity of the States -they represent. - -[Footnote 710: Ullmann, § 42; Rivier, I. p. 423; Stoerk in Holtzendorff, -II. p. 658.] - -[Footnote 711: Martens, I. § 80; Bluntschli, § 134; Despagnet, No. 254; -Hall, § 97.] - -[Footnote 712: Bonfils, No. 632; Nys, II. p. 287; Mérignhac, II. p. 298; -Liszt, § 13; Walther, op. cit., p. 195.] - - -IV - -FOREIGN OFFICES - - Heffter, § 201--Geffcken in Holtzendorff, III. p. 668--Ullmann, § - 43--Rivier, I. § 34--Bonfils, Nos. 648-651--Nys, II. pp. 330-334. - -[Sidenote: Position of the Secretary for Foreign Affairs.] - -§ 357. As a rule nowadays no head of a State, be he a monarch or a -president, negotiates directly and in person with a foreign Power, -although this happens occasionally. The necessary negotiations are -regularly conducted by the Foreign Office, an office which since the -Westphalian Peace has been in existence in every civilised State. The -chief of this office, the Secretary for Foreign Affairs, who is a -Cabinet Minister, directs the foreign affairs of the State in the name -of the head and with the latter's consent; he is the middle-man between -the head of the State and other States. And although many a head of a -State directs in fact all the foreign affairs himself, the Secretary for -Foreign Affairs is nevertheless the person through whose hands all -transactions must pass. Now, as regards the position of such Foreign -Secretary at home, it is the Municipal Law of a State which regulates -this. International Law defines his position regarding international -intercourse with other States. He is the chief over all the ambassadors -of the State, over its consuls, and over its other agents in matters -international. It is he who, either in person or through the envoys of -his State, approaches foreign States for the purpose of negotiating -matters international. And again it is he whom foreign States through -their Foreign Secretaries or their envoys approach for the like purpose. -He is present when Ministers hand in their credentials to the head of -the State. All documents of importance regarding foreign matters are -signed by him or his substitute, the Under-Secretary for Foreign -Affairs. It is, therefore, usual to notify the appointment of a new -Foreign Secretary of a State to such foreign States as are represented -within its boundaries by diplomatic envoys; the new Foreign Secretary -himself makes this notification. - - - - -CHAPTER II - -DIPLOMATIC ENVOYS - - -I - -THE INSTITUTION OF LEGATION - - Phillimore, II. §§ 143-153--Taylor, § 274--Twiss, § 199--Geffcken - in Holtzendorff, III. pp. 605-618--Nys, II. pp. 335-339--Rivier, - I. § 35--Ullmann, § 44--Martens, II. § 6--Gentilis, "De - legationibus libri III." (1585)--Wicquefort, "L'Ambassadeur et ses - fonctions" (1680)--Bynkershoek, "De foro legatorum" - (1721)--Garden, "Traité complet de diplomatie" (3 vols. - 1833)--Mirus, "Das europäische Gesandtschaftsrecht" (2 vols. - 1847)--Charles de Martens, "Le guide diplomatique" (2 vols. 1832; - 6th ed. by Geffcken, 1866)--Montague Bernard, "Four Lectures on - Subjects connected with Diplomacy" (1868), pp. 111-162 (3rd - Lecture)--Alt, "Handbuch des Europäischen Gesandtschaftsrechts" - (1870)--Pradier-Fodéré, "Cours de droit diplomatique" (2 vols. 2nd - ed. 1899)--Krauske, "Die Entwickelung der ständigen Diplomatie," - &c. (1885)--Lehr, "Manuel théorique et pratique des agents - diplomatiques" (1888)--Hill, "History of Diplomacy in the - International Development of Europe," vol. I. (1905), vol. II. - (1906; the other vols. have not yet appeared). - -[Sidenote: Development of Legations.] - -§ 358. Legation as an institution for the purpose of negotiating between -different States is as old as history, whose records are full of -examples of legations sent and received by the oldest nations. And it is -remarkable that even in antiquity, where no such law as the modern -International Law was known, ambassadors enjoyed everywhere a special -protection and certain privileges, although not by law but by religion, -ambassadors being looked upon as sacrosanct. Yet permanent legations -were unknown till very late in the Middle Ages. The fact that the Popes -had permanent representatives--so-called _apocrisiarii_ or -_responsales_--at the Court of the Frankish Kings and at Constantinople -until the final separation of the Eastern from the Western Church, -ought not to be considered as the first example of permanent legations, -as the task of these papal representatives had nothing to do with -international affairs, but with those of the Church only. It was not -until the thirteenth century that the first permanent legations made -their appearance. The Italian Republics, and Venice in especial, created -the example[713] by keeping representatives stationed at one another's -capitals for the better negotiation of their international affairs. And -in the fifteenth century these Republics began to keep permanent -representatives in Spain, Germany, France, and England. Other States -followed the example. Special treaties were often concluded stipulating -permanent legations, such as in 1520, for instance, between the King of -England and the Emperor of Germany. From the end of the fifteenth -century England, France, Spain, and Germany kept up permanent legations -at one another's Courts. But it was not until the second half of the -seventeenth century that permanent legations became a general -institution, the Powers following the example of France under Louis XIV. -and Richelieu. It ought to be specially mentioned that Grotius[714] -thought permanent legations to be wholly unnecessary. The course of -events has, however, shown that Grotius's views as regards permanent -legations were short-sighted. Nowadays the Family of Nations could not -exist without them, as they are the channel through which nearly the -whole, and certainly all important, official intercourse of the States -flows. - -[Footnote 713: See Nys, "Les Origines du droit international" (1894), p. -295.] - -[Footnote 714: "De jure belli ac pacis," II. c. 28, § 3: "Optimo autem -jure rejici possunt, quae nunc in usu sunt, legationes assiduae, quibus -cum non sit opus, docet mos antiquus, cui illae ignoratae."] - -[Sidenote: Diplomacy.] - -§ 359. The rise of permanent legations created the necessity for a new -class of State officials, the so-called diplomatists; yet it was not -until the end of the eighteenth century that the terms "diplomatist" -and "diplomacy" came into general use. And although the art of diplomacy -is as old as official intercourse between States, such a special class -of officials as are now called diplomatists did not and could not exist -until permanent legations had become a general institution. In this as -in other cases the office has created the class of men necessary for it. -International Law has nothing to do with the education and general -character of these officials. Every State is naturally competent to -create its own rules, if any, as regards these points. Nor has -International Law anything to do with _diplomatic usages_, although -these are more or less of importance, as they may occasionally grow into -customary rules of International Law. But I would notice one of these -usages--namely, that as regards the _language_ which is in use in -diplomatic intercourse. This language was formerly Latin, but through -the political ascendency of France under Louis XIV. it became French. -However, this is a usage of diplomacy only, and not a rule of -International Law.[715] Each State can use its own language in all -official communications to other States, and States which have the same -language regularly do so in their intercourse with each other. But -between States of different tongues and, further, at Conferences and -Congresses, it is convenient to make use of a language which is -generally known. This is nowadays French, but nothing could prevent -diplomatists from dropping French at any moment and adopting another -language instead. - -[Footnote 715: See Mirus, "Das europäische Gesandtschaftsrecht," I. §§ -266-268.] - - -II - -RIGHT OF LEGATION - - Grotius, II. c. 18--Vattel, IV. §§ 55-68--Hall, § 98--Phillimore, - II. §§ 115-139--Taylor, §§ 285-288--Twiss, §§ 201-202--Wheaton, §§ - 206-209--Bluntschli, §§ 159-165--Heffter, § 200--Geffcken in - Holtzendorff, III. pp 620-631--Ullmann, § 45--Rivier, I. § - 35--Nys, II. p. 339--Bonfils, Nos. 658-667--Pradier-Fodéré, II. - Nos. 1225-1256--Fiore, II. Nos. 1112-1117--Calvo, III. §§ - 1321-1325--Martens, II. §§ 7-8. - -[Sidenote: Conception of Right of Legation.] - -§ 360. Right of legation is the right of a State to send and receive -diplomatic envoys. The right to send such envoys is termed _active_ -right of legation, in contradistinction to the _passive_ right of -legation, as the right to receive such envoys is termed. Some -writers[716] on International Law assert that no right but a mere -competence to send and receive diplomatic envoys exists according to -International Law, maintaining that no State is bound by International -Law to send or receive such envoys. But this is certainly wrong in its -generality. Obviously a State is not bound to send diplomatic envoys or -to receive _permanent_ envoys. But, on the other hand, the very -existence[717] of the Family of Nations makes it necessary for the -members or some of the members to negotiate occasionally on certain -points. Such negotiation would be impossible in case one member could -always and under all circumstances refuse to receive an envoy from the -other members. The duty of every member to listen, under ordinary -circumstances, to a message from another brought by a diplomatic envoy -is, therefore, an outcome of its very membership of the Family of -Nations, and this duty corresponds to the right of every member to send -such envoys. But the exercise of the active right of legation is -discretionary. No State need send diplomatic envoys at all, although -practically all States do at least occasionally send such envoys, and -most States send permanent envoys to many other States. The passive -right of legation is discretionary as regards the reception of -_permanent_ envoys only. - -[Footnote 716: See, for instance, Wheaton, § 207; Heilborn, "System," p. -182.] - -[Footnote 717: See above, § 141.] - -[Sidenote: What States possess the Right of Legation.] - -§ 361. Not every State, however, possesses the right of legation. Such -right pertains chiefly to full-Sovereign States,[718] for other States -possess this right under certain conditions only. - -[Footnote 718: It should be emphasised that the Holy See, which is in -some respects treated as though an International Person, can send and -receive envoys, who must in every respect be considered as though they -were diplomatic envoys. That they are actually not diplomatic envoys, -although so treated, becomes apparent from the fact that they are not -agents for international affairs of States, but exclusively for affairs -of the Roman Catholic Church. (See above, § 106.)] - -(1) Half-Sovereign States, such as States under the suzerainty or the -protectorate of another State, can as a rule neither send nor receive -diplomatic envoys. Thus, Crete and Egypt are destitute of such right, -and the Powers are represented in these States only by consuls or agents -without diplomatic character. But there may be exceptions to this rule. -Thus, according to the Peace Treaty of Kainardgi of 1774 between Russia -and Turkey, the two half-Sovereign principalities of Moldavia and -Wallachia had the right of sending Chargés d'Affaires to foreign Powers. -Thus, further, the late South African Republic, which was a State under -British suzerainty in the opinion of Great Britain, used to keep -permanent diplomatic envoys in several foreign States. - -(2) Part-Sovereign member-States of a Federal State may or may not have -the right of legation besides the Federal State. It is the constitution -of the Federal State which regulates this point. Thus, the member-States -of Switzerland and of the United States of America have no right of -legation, but those of the German Empire certainly have. Bavaria, for -example, sends and receives several diplomatic envoys. - -[Sidenote: Right of Legation by whom exercised.] - -§ 362. As, according to International Law, a State is represented in its -international relations by its head, it is he who acts in the exercise -of his State's right of legation. But Municipal Law may, just as it -designates the person who is the head of the State, impose certain -conditions and restrictions upon the head as regards the exercise of -such right. And the head himself may, provided that it is sanctioned by -the Municipal Law of his State, delegate[719] the exercise of such right -to any representative he chooses. - -[Footnote 719: See Phillimore, II. §§ 126-133, where several interesting -cases of such delegation are discussed.] - -It may, however, in consequence of revolutionary movements, be doubtful -who the real head of a State is, and in such cases it remains in the -discretion of foreign States to make their choice. But it is impossible -for foreign States to receive diplomatic envoys from both claimants to -the headship of the same State, or to send diplomatic envoys to both of -them. And as soon as a State has recognised the head of a State who came -into his position through a revolution, it can no longer keep up -diplomatic relations with the former head. - -It should be mentioned that a revolutionary party which is recognised as -a belligerent Power has nevertheless no right of legation, although -foreign States may negotiate with such party in an informal way through -political agents without diplomatic character, to provide for the -temporal security of the persons and property of their subjects within -the territory under the actual sway of such party. Such revolutionary -party as is recognised as a belligerent Power is in some points only -treated as though it were a subject of International Law; but it is not -a State, and there is no reason why International Law should give it the -right to send and receive diplomatic envoys. - -It should further be mentioned that neither an abdicated nor a deposed -head has a right to send and receive diplomatic envoys.[720] - -[Footnote 720: See Phillimore, II. §§ 124-125, where the case of Bishop -Ross, ambassador of Mary Queen of Scots, is discussed.] - - -III - -KINDS AND CLASSES OF DIPLOMATIC ENVOYS - - Vattel, IV. §§ 69-75--Phillimore, II. §§ 211-224--Twiss, I. §§ - 204-209--Moore, IV. § 624--Heffter, § 208--Geffcken in - Holtzendorff, III. pp. 635-646--Calvo, III. §§ 1326-1336--Bonfils, - Nos. 668-676--Pradier-Fodéré, III. §§ 1277-1290--Rivier, I. pp. - 443-453--Nys, II. pp. 342-352. - -[Sidenote: Envoys Ceremonial and Political.] - -§ 363. Two different kinds of diplomatic envoys are to be -distinguished--namely, such as are sent for political negotiations and -such as are sent for the purpose of ceremonial function or notification -of changes in the headship. For States very often send special envoys to -one another on occasion of coronations, weddings, funerals, jubilees, -and the like; and it is also usual to send envoys to announce a fresh -accession to the throne. Such envoys ceremonial have the same standing -as envoys political for real State negotiations. Among the envoys -political, again, two kinds are to be distinguished--namely, first, such -as are permanently or temporarily accredited to a State for the purpose -of negotiating with such State, and, second, such as are sent to -represent the sending State at a Congress or Conference. The latter are -not, or need not be, accredited to the State on whose territory the -Congress or Conference takes place, but they are nevertheless diplomatic -envoys and enjoy all the privileges of such envoys as regards -exterritoriality and the like which concern the inviolability and safety -of their persons and the members of their suites. - -[Sidenote: Classes of Diplomatic Envoys.] - -§ 364. Diplomatic envoys accredited to a State differ in class. These -classes did not exist in the early stages of International Law. But -during the sixteenth century a distinction between two classes of -diplomatic envoys gradually arose, and at about the middle of the -seventeenth century, after permanent legations had come into general -vogue, two such classes became generally recognised--namely, -extraordinary envoys, called Ambassadors, and ordinary envoys, called -Residents; Ambassadors being received with higher honours and taking -precedence of the other envoys. Disputes arose frequently regarding -precedence, and the States tried in vain to avoid them by introducing -during the eighteenth century another class--namely, the so-called -Ministers Plenipotentiary. At last the Powers assembled at the Vienna -Congress came to the conclusion that the matter ought to be settled by -an international understanding, and they agreed, therefore, on March 19, -1815, upon the establishment of three different classes--namely, first, -Ambassadors; second, Ministers Plenipotentiary and Envoys Extraordinary; -third, Chargés d'Affaires. And the five Powers assembled at the Congress -of Aix-la-Chapelle in 1818 agreed upon a fourth class--namely, Ministers -Resident, to rank between Ministers Plenipotentiary and Chargés -d'Affaires. All the other States either expressly or tacitly accepted -these arrangements, so that nowadays the four classes are an established -order. Although their privileges are materially the same, they differ in -rank and honours, and they must therefore be treated separately. - -[Sidenote: Ambassadors.] - -§ 365. Ambassadors form the first class. Only States enjoying royal -honours[721] are entitled to send and to receive Ambassadors, as also is -the Holy See, whose first-class envoys are called _Nuncios_, or _Legati -a latere_ or _de latere_. Ambassadors are considered to be personal -representatives of the heads of their States and enjoy for this reason -special honours. Their chief privilege--namely, that of negotiating with -the head of the State personally--has, however, little value nowadays, -as almost all States have to a certain extent constitutional government, -which necessitates that all the important business should go through the -hands of a Foreign Secretary. - -[Footnote 721: See above, § 117, No. 1.] - -[Sidenote: Ministers Plenipotentiary and Envoys Extraordinary.] - -§ 366. The second class, the Ministers Plenipotentiary and Envoys -Extraordinary, to which also belong the Papal Internuncios, are not -considered to be personal representatives of the heads of their States. -Therefore they do not enjoy all the special honours of the Ambassadors, -and have not the privilege of treating with the head of the State -personally. But otherwise there is no difference between these two -classes. - -[Sidenote: Ministers Resident.] - -§ 367. The third class, the Ministers Resident, enjoy fewer honours and -rank below the Ministers Plenipotentiary. But beyond the fact that -Ministers Resident do not enjoy the title "Excellency," there is no -difference between them and the Ministers Plenipotentiary. - -[Sidenote: Chargés d'Affaires.] - -§ 368. The fourth class, the Chargés d'Affaires, differs chiefly in one -point from the first, second, and third class--namely, in so far as its -members are accredited from Foreign Office to Foreign Office, whereas -the members of the other classes are accredited from head of State to -head of State. Chargés d'Affaires do not enjoy, therefore, so many -honours as other diplomatic envoys. And it must be specially mentioned -that a distinction ought to be made between a Chargé d'Affaires who is -the head of a Legation, and who, therefore, is accredited from Foreign -Office to Foreign Office, and a Chargé d'Affaires _ad interim_. The -latter is a member of a Legation whom the head of the Legation delegates -for the purpose of taking his place during absence on leave. Such Chargé -d'Affaires _ad interim_, who had better be called a Chargé des -Affaires,[722] ranks below the ordinary Chargé d'Affaires; he is not -accredited from Foreign Office to Foreign Office, but is simply a -delegate of the absent head of the Legation. - -[Footnote 722: See Rivier, II. pp. 451-452.] - -[Sidenote: The Diplomatic Corps.] - -§ 369. All the Diplomatic Envoys accredited to the same State form, -according to a diplomatic usage, a body which is styled the "Diplomatic -Corps." The head of this body, the so-called "Doyen," is the Papal -Nuncio, or, in case there is no Nuncio accredited, the oldest -Ambassador, or, failing Ambassadors, the oldest Minister -Plenipotentiary, and so on. As the Diplomatic Corps is not a body -legally constituted, it performs no legal functions, but it is -nevertheless of great importance, as it watches over the privileges and -honours due to diplomatic envoys. - - -IV - -APPOINTMENT OF DIPLOMATIC ENVOYS - - Vattel, IV. §§ 76-77--Phillimore, II. §§ 227-231--Twiss, I. §§ - 212-214--Ullmann, § 48--Calvo, III. §§ 1343-1345--Bonfils, Nos. - 677-680--Wheaton, §§ 217-220--Moore, IV. §§ 632-635. - -[Sidenote: Person and Qualification of the Envoy.] - -§ 370. International Law has no rules as regards the qualification of -the individuals whom a State can appoint as diplomatic envoys, States -being naturally competent to act according to discretion, although of -course there are many qualifications a diplomatic envoy must possess to -fill his office successfully. The Municipal Laws of many States -comprise, therefore, many details as regards the knowledge and training -which a candidate for a permanent diplomatic post must possess, whereas, -regarding envoys ceremonial even the Municipal Laws have no provisions -at all. The question is sometimes discussed whether females[723] might -be appointed envoys. History relates a few cases of female diplomatists. -Thus, for example, Louis XIV. of France accredited in 1646 Madame de -Guébriant ambassador to the Court of Poland. During the last two -centuries, however, no such case has to my knowledge occurred, although -I doubt not that International Law does not prevent a State from sending -a female as diplomatic envoy. But under the present circumstances many -States would refuse to receive her. - -[Footnote 723: See Mirus, "Das europäische Gesandtschaftsrecht," I. §§ -127-128; Phillimore, II. § 134; and Focherini, "Le Signore Ambasciatrici -dei secoli XVII. e XVIII. e loro posizione nel diritto diplomatico" -(1909).] - -[Sidenote: Letter of Credence, Full Powers, Passports.] - -§ 371. The appointment of an individual as a diplomatic envoy is -announced to the State to which he is accredited in certain official -papers to be handed in by the envoy to the receiving State. _Letter of -Credence_ (_lettre de créance_) is the designation of the document in -which the head of the State accredits a permanent ambassador or minister -to a foreign State. Every such envoy receives a sealed Letter of -Credence and an open copy. As soon as the envoy arrives at his -destination, he sends the copy to the Foreign Office in order to make -his arrival officially known. The sealed original, however, is handed in -personally by the envoy to the head of the State to whom he is -accredited. Chargés d'Affaires receive a Letter of Credence too, but as -they are accredited from Foreign Office to Foreign Office, their Letter -of Credence is signed, not by the head of their home State, but by its -Foreign Office. Now a permanent diplomatic envoy needs no other -empowering document in case he is not entrusted with any task outside -the limits of the ordinary business of a permanent legation. But in case -he is entrusted with any such task, as, for instance, if any special -treaty or convention is to be negotiated, he requires a special -empowering document--namely, the so-called _Full Powers_ (_Pleins -Pouvoirs_). They are given in Letters Patent signed by the head of the -State, and they are either limited or unlimited Full Powers, according -to the requirements of the case. Such diplomatic envoys as are sent, -not to represent their home State permanently, but on an extraordinary -mission such as representation at a Congress, negotiation of a special -treaty, and other transactions, receive full Powers only, and no Letter -of Credence. Every permanent or other diplomatic envoy is also furnished -with so-called _Instructions_ for the guidance of his conduct as regards -the objects of his mission. But such Instructions are a matter between -the Envoy and his home State exclusively, and they have therefore, -although they may otherwise be very important, no importance for -International Law. Every permanent diplomatic envoy receives, lastly, -_Passports_ for himself and his suite specially made out by the Foreign -Office. These Passports the envoy after his arrival deposits at the -Foreign Office of the State to which he is accredited, where they remain -until he himself asks for them because he desires to leave his post, or -until they are returned to him on his dismissal. - -[Sidenote: Combined Legations.] - -§ 372. As a rule, a State appoints different individuals as permanent -diplomatic envoys to different States, but sometimes a State appoints -the same individual as permanent diplomatic envoy to several States. As -a rule, further, a diplomatic envoy represents one State only. But -occasionally several States appoint the same individual as their envoy, -so that one envoy represents several States. - -[Sidenote: Appointment of several Envoys.] - -§ 373. In former times States used frequently[724] to appoint more than -one permanent diplomatic envoy as their representative in a foreign -State. Although this would hardly occur nowadays, there is no rule -against such a possibility. And even now it happens frequently that -States appoint several envoys for the purpose of representing them at -Congresses and Conferences. In such cases one of the several envoys is -appointed senior, to whom the others are subordinate. - -[Footnote 724: See Mirus, op. cit. I. §§ 117-119.] - - -V - -RECEPTION OF DIPLOMATIC ENVOYS - - Vattel, IV. §§ 65-67--Hall, § 98--Phillimore, II. §§ - 133-139--Twiss, I. §§ 202-203--Taylor, §§ 285-290--Moore, IV. §§ - 635, 637-638--Martens, II. § 8--Calvo, III. §§ - 1353-1356--Pradier-Fodéré, III. §§ 1253-1260--Fiore, II. Nos. - 1118-1120--Rivier, I. pp. 455-457. - -[Sidenote: Duty to receive Diplomatic Envoys.] - -§ 374. Every member of the Family of Nations that possesses the passive -right of legation is under ordinary circumstances bound to receive -diplomatic envoys accredited to itself from other States for the purpose -of negotiation. But the duty extends neither to the reception of -permanent envoys nor to the reception of temporary envoys under all -circumstances. - -(1) As regards permanent envoys, it is a generally recognised fact that -a State is as little bound to receive them as it is to send them. -Practically, however, every full-Sovereign State which desires its voice -to be heard among the States receives and sends permanent envoys, as -without such it would, under present circumstances, be impossible for a -State to have any influence whatever in international affairs. It is for -this reason that Switzerland, which in former times abstained entirely -from sending permanent envoys, has abandoned her former practice and -nowadays sends and receives several. The insignificant Principality of -Lichtenstein is, as far as I know, the only full-Sovereign State which -neither sends nor receives one single permanent legation. - -But a State may receive a permanent legation from one State and refuse -to do so from another. Thus the Protestant States never _received_ a -permanent legation from the Popes, even when the latter were heads of a -State, and they still observe this rule, although one or another of -them, such as Prussia for example, keeps a permanent legation at the -Vatican. - -(2) As regards temporary envoys, it is likewise a generally recognised -fact among those writers who assert the duty of a State to receive -under ordinary circumstances temporary envoys that there are exceptions -to that rule. Thus, for example, a State which knows beforehand the -object of a mission and does not wish to negotiate thereon can refuse to -receive the mission. Thus, further, a belligerent can refuse[725] to -receive a legation from the other belligerent, as war involves the -rupture of all peaceable relations. - -[Footnote 725: But this is not generally recognised. See Vattel, IV. § -67; Phillimore, II. § 138; and Pradier-Fodéré, III. No. 1255.] - -[Sidenote: Refusal to receive a certain Individual.] - -§ 375. But the refusal to receive an envoy must not be confounded with -the refusal to receive a certain individual as envoy. A State may be -ready to receive a permanent or temporary envoy, but may object to the -individual selected for that purpose. International Law gives no right -to a State to insist upon the reception of an individual appointed by it -as diplomatic envoy. Every State can refuse to receive as envoy a person -objectionable to itself. And a State refusing an individual envoy is -neither compelled to specify what kind of objection it has, nor to -justify its objection. Thus, for example, most States refuse to receive -one of their own subjects as an envoy from a foreign State.[726] Thus, -again, the King of Hanover refused in 1847 to receive a minister -appointed by Prussia, because the individual was of the Roman Catholic -faith. Italy refused in 1885 to receive Mr. Keiley as ambassador of the -United States of America because he had in 1871 protested against the -annexation of the Papal States. And when the United States sent the -same gentleman as ambassador to Austria, the latter refused him -reception on the ground that his wife was said to be a Jewess. Although, -as is apparent from these examples, no State has a right to insist upon -the reception of a certain individual as envoy, in practice States are -often offended when reception is refused. Thus, in 1832 England did not -cancel for three years the appointment of Sir Stratford Canning as -ambassador to Russia, although the latter refused reception, and the -post was practically vacant. In 1885, when, as above mentioned, Austria -refused reception to Mr. Keiley as ambassador of the United States, the -latter did not appoint another, although Mr. Keiley resigned, and the -legation was for several years left to the care of a Chargé -d'Affaires.[727] To avoid such conflicts it is a good practice of many -States never to appoint an individual as envoy without having -ascertained beforehand whether the individual would be _persona grata_. -And it is a customary rule of International Law that a State which does -not object to the appointment of a certain individual, when its opinion -has been asked beforehand, is bound to receive such individual.[728] - -[Footnote 726: In case a State receives one of its own subjects as -diplomatic envoy of a foreign State, it has to grant him all the -privileges of such envoys, including exterritoriality. Thus in the case -of Macartney _v._ Garbutt and others (1890, L.R. 24 Q.B. 368) it was -decided that a British subject accredited to Great Britain by the -Chinese Government as a Secretary of its embassy and received by Great -Britain in that capacity without an express condition that he should -remain subject to British jurisdiction, was exempt from British -jurisdiction. See, however, article 15 of the Règlement sur les -Immunités Diplomatiques, adopted in 1895 by the Institute of -International Law (see Annuaire, XIV. p. 244), which denies to such an -individual exemption from jurisdiction. See also Phillimore, II. § 135, -and Twiss, I. § 203.] - -[Footnote 727: See Moore, IV. § 638, p. 480.] - -[Footnote 728: The question is of interest whether the privileges due to -diplomatists must be granted on his journey home to an individual to -whom reception as an envoy is refused. I think the question ought to be -answered in the affirmative; see, however, Moore, IV. § 666, p. 668.] - -[Sidenote: Mode and Solemnity of Reception.] - -§ 376. In case a State does not object to the reception of a person as -diplomatic envoy accredited to itself, his actual reception takes place -as soon as he has arrived at the place of his designation. But the mode -of reception differs according to the class to which the envoy belongs. -If he be one of the first, second, or third class, it is the duty of the -head of the State to receive him solemnly in a so-called public audience -with all the usual ceremonies. For that purpose the envoy sends a copy -of his credentials to the Foreign Office, which arranges a special -audience with the head of the State for the envoy, when he delivers in -person his sealed credentials.[729] If the envoy be a Chargé d'Affaires -only, he is received in audience by the Secretary of Foreign Affairs, to -whom he hands his credentials. Through the formal reception the envoy -becomes officially recognised and can officially commence to exercise -his functions. But such of his privileges as exterritoriality and the -like, which concern the safety and inviolability of his person, must be -granted even before his official reception, as his character as -diplomatic envoy is considered to date, not from the time of his -official reception, but from the time when his credentials were handed -to him on leaving his home State, his passports furnishing sufficient -proof of his diplomatic character. - -[Footnote 729: Details concerning reception of envoys are given by -Twiss, I. § 215, and Rivier, I. p. 467.] - -[Sidenote: Reception of Envoys to Congresses and Conferences.] - -§ 377. It must be specially observed that all these details regarding -the reception of diplomatic envoys accredited to a State do not apply to -the reception of envoys sent to represent the several States at a -Congress or Conference. As such envoys are not accredited to the State -on whose territory the Congress or Conference takes place, such State -has no competence to refuse the reception of the appointed envoys, and -no formal and official reception of the latter by the head of the State -need take place. The appointing States merely notify the appointment of -their envoys to the Foreign Office of the State on whose territory the -transactions take place, the envoys call upon the Foreign Secretary -after their arrival to introduce themselves, and they are courteously -received by him. They do not, however, hand in to him their Full Powers, -but reserve them for the first meeting of the Congress or Conference, -where they produce them in exchange with one another. - - -VI - -FUNCTIONS OF DIPLOMATIC ENVOYS - - Rivier, I. § 37--Ullmann, § 49--Bonfils, Nos. - 681-683--Pradier-Fodéré, III. §§ 1346-1376. - -[Sidenote: On Diplomatic Functions in general.] - -§ 378. A distinction must be made between functions of permanent envoys -and of envoys for temporary purposes. The functions of the latter, who -are either envoys ceremonial or such envoys political as are only -temporarily accredited for the purpose of some definite negotiations or -as representatives at Congresses and Conferences, are clearly -demonstrated by the very purpose of their appointment. But the functions -of the permanent envoys demand a closer consideration. These regular -functions may be grouped together under the heads of negotiation, -observation, and protection. But besides these regular functions a -diplomatic envoy may be charged with other and more miscellaneous -functions. - -[Sidenote: Negotiation.] - -§ 379. A permanent ambassador or other envoy represents his home State -in the totality of its international relations not only with the State -to which he is accredited, but also with other States. He is the -mouthpiece of the head of his home State and its Foreign Secretary as -regards communications to be made to the State to which he is -accredited. He likewise receives communications from the latter and -reports them to his home State. In this way not only are international -relations between these two States fostered and negotiated upon, but -such international affairs of other States as are of general interest to -all or a part of the members of the Family of Nations are also -discussed. Owing to the fact that all the more important Powers keep -permanent legations accredited to one another, a constant exchange of -views in regard to affairs international is taking place between them. - -[Sidenote: Observation.] - -§ 380. But these are not all the functions of permanent diplomatic -envoys. Their task is, further, to observe attentively every occurrence -which might affect the interest of their home States, and to report such -observations to their Governments. It is through these reports that -every member of the Family of Nations is kept well informed in regard to -the army and navy, the finances, the public opinion, the commerce and -industry of foreign countries. And it must be specially observed that no -State that receives diplomatic envoys has a right to prevent them from -exercising their function of observation. - -[Sidenote: Protection.] - -§ 381. A third task of diplomatic envoys is the protection of the -persons, property, and interests of such subjects of their home States -as are within the boundaries of the State to which they are accredited. -If such subjects are wronged without being able to find redress in the -ordinary way of justice, and ask the help of the diplomatic envoy of -their home State, he must be allowed to afford them protection. It is, -however, for the Municipal Law and regulations of his home State, and -not for International Law, to prescribe to an envoy the limits within -which he has to afford protection to his compatriots. - -[Sidenote: Miscellaneous Functions.] - -§ 382. Negotiation, observation, and protection are tasks common to all -diplomatic envoys of every State. But a State may order its permanent -envoys to perform other tasks, such as the registration of deaths, -births, and marriages of subjects of the home State, legalisation of -their signatures, making out of passports for them, and the like. But in -doing this a State must be careful not to order its envoys to perform -such tasks as are by the law of the receiving State exclusively reserved -to its own officials. Thus, for instance, a State whose laws compel -persons who intend marriage to conclude it in presence of its -registrars, need not allow a foreign envoy to legalise a marriage of -compatriots before its registration by the official registrar. So, too, -a State need not allow a foreign envoy to perform an act which is -reserved for its jurisdiction, as, for instance, the examination of -witnesses on oath. - -[Sidenote: Envoys not to interfere in Internal Politics.] - -§ 383. But it must be specially emphasised that envoys must not -interfere with the internal political life of the State to which they -are accredited. It certainly belongs to their functions to watch the -political events and the political parties with a vigilant eye and to -report their observations to their home States. But they have no right -whatever to take part in that political life itself, to encourage a -certain political party, or to threaten another. If nevertheless they do -so, they abuse their position. And it matters not whether an envoy acts -thus on his own account or on instructions from his home State. No -strong self-respecting State will allow a foreign envoy to exercise such -interference, but will either request his home State to recall him and -appoint another individual in his place or, in case his interference is -very flagrant, hand him his passports and therewith dismiss him. History -records many instances of this kind,[730] although in many cases it is -doubtful whether the envoy concerned really abused his office for the -purpose of interfering with internal politics. - -[Footnote 730: See Hall (§ 98**), Taylor (§ 322), and Moore (IV. § 640), -who discuss a number of cases, especially that of Lord Sackville, who -received his passports in 1888 from the United States of America for an -alleged interference in the Presidential election.] - - -VII - -POSITION OF DIPLOMATIC ENVOYS - -[Sidenote: Diplomatic Envoys objects of International Law.] - -§ 384. Diplomatic envoys are just as little subjects of International -Law as are heads of States; and the arguments regarding the position of -such heads[731] must also be applied to the position of diplomatic -envoys, which is given to them by International Law not as individuals -but as representative agents of their States. It is derived, not from -personal rights, but from rights and duties of their home States and the -receiving States. All the privileges which according to International -Law are possessed by diplomatic envoys are not rights given to them by -International Law, but rights given by the Municipal Law of the -receiving States in compliance with an international right of their home -States. For International Law gives a right to every State to demand for -its diplomatic envoys certain privileges from the Municipal Law of a -foreign State. Thus, a diplomatic envoy is not a subject but an object -of International Law, and is in this regard like any other individual. - -[Footnote 731: See above, § 344.] - -[Sidenote: Privileges due to Diplomatic Envoys.] - -§ 385. Privileges due to diplomatic envoys, apart from ceremonial -honours, have reference to their inviolability and to their so-called -exterritoriality. The reasons why these privileges must be granted are -that diplomatic envoys are representatives of States and of their -dignity,[732] and, further, that they could not exercise their functions -perfectly unless they enjoyed such privileges. For it is obvious that, -were they liable to ordinary legal and political interference like other -individuals and thus more or less dependent on the good-will of the -Government, they might be influenced by personal considerations of -safety and comfort to such a degree as would materially hamper the -exercise of their functions. It is equally clear that liability to -interference with their full and free intercourse with their home States -through letters, telegrams, and couriers would wholly nullify their -_raison d'être_. In this case it would be impossible for them to send -independent and secret reports to or receive similar instructions from -their home States. From the consideration of these and various cognate -reasons their privileges seem to be inseparable attributes of the very -existence of diplomatic envoys.[733] - -[Footnote 732: See above, § 121.] - -[Footnote 733: The Institute of International Law, at its meeting at -Cambridge in 1895, discussed the privileges of diplomatic envoys, and -drafted a body of seventeen rules in regard thereto; see Annuaire, XIV. -p. 240.] - - -VIII - -INVIOLABILITY OF DIPLOMATIC ENVOYS - - Vattel, IV. §§ 80-107--Hall, §§ 50, 98*--Phillimore, II. §§ - 154-175--Twiss, I. §§ 216-217--Moore, IV. §§ 657-659--Ullmann, § - 50--Geffcken in Holtzendorff, III. pp. 648-654--Rivier, I. § - 38--Nys, II. pp. 372-374--Bonfils, Nos. 684-699--Pradier-Fodéré, - III. §§ 1382-1393--Mérignhac, II. pp. 264-273--Fiore, II. Nos. - 1127-1143--Calvo, III. §§ 1480-1498--Martens, II. § 11--Crouzet, - "De l'inviolabilité ... des agents diplomatiques" (1875). - -[Sidenote: Protection due to Diplomatic Envoys.] - -§ 386. Diplomatic envoys are just as sacrosanct as heads of States. They -must, therefore, on the one hand, be afforded special protection as -regards the safety of their persons, and, on the other hand, they must -be exempted from every kind of criminal jurisdiction of the receiving -States. Now the protection due to diplomatic envoys must find its -expression not only in the necessary police measures for the prevention -of offences, but also in specially severe punishments to be inflicted on -offenders. Thus, according to English Criminal Law,[734] every one is -guilty of a misdemeanour who, by force or personal restraint, violates -any privilege conferred upon the diplomatic representatives of foreign -countries, or who[735] sets forth or prosecutes or executes any writ or -process whereby the person of any diplomatic representative of a -foreign country or the person of a servant of any such representative -is arrested or imprisoned. The protection of diplomatic envoys is not -restricted to their own person, but must be extended to the members of -their family and suite, to their official residence, their furniture, -carriages, papers, and likewise to their intercourse with their home -States by letters, telegrams, and special messengers. Even after a -diplomatic mission has come to an end, the archives of an Embassy must -not be touched, provided they have been put under seal and confided to -the protection of another envoy.[736] - -[Footnote 734: See Stephen's Digest, articles 96-97.] - -[Footnote 735: 7 Anne, c. 12, sect. 3-6. This statute, which was passed -in 1708 in consequence of the Russian Ambassador in London having been -arrested for a debt of £50, has always been considered as declaratory of -the existing law in England, and not as creating new law.] - -[Footnote 736: See above, § 106 (case of Montagnini), and below, § 411.] - -[Sidenote: Exemption from Criminal Jurisdiction.] - -§ 387. As regards the exemption of diplomatic envoys from criminal -jurisdiction, theory and practice of International Law agree -nowadays[737] upon the fact that the receiving States have no right, -under any circumstances whatever, to prosecute and punish diplomatic -envoys. But among writers on International Law the question is not -settled whether the commands and injunctions of the laws of the -receiving States concern diplomatic envoys at all, so that the latter -have to comply with such commands and injunctions, although the fact is -established that they can never be prosecuted and punished for any -breach.[738] This question ought to be decided in the negative, for a -diplomatic envoy must in no point be considered under the legal -authority of the receiving State. But this does not mean that a -diplomatic envoy must have a right to do what he likes. The -presupposition of the privileges he enjoys is that he acts and behaves -in such a manner as harmonises with the internal order of the receiving -State. He is therefore expected voluntarily to comply with all such -commands and injunctions of the Municipal Law as do not restrict him in -the effective exercise of his functions. In case he acts and behaves -otherwise, and disturbs thereby the internal order of the State, the -latter will certainly request his recall or send him back at once. - -[Footnote 737: In former times there was no unanimity amongst -publicists. See Phillimore, II. § 154.] - -[Footnote 738: The point is thoroughly discussed by Beling, "Die -strafrechtliche Bedeutung der Exterritorialität" (1896), pp. 71-90.] - -History records many cases of diplomatic envoys who have conspired -against the receiving States, but have nevertheless not been prosecuted. -Thus, in 1584, the Spanish Ambassador Mendoza in England plotted to -depose Queen Elizabeth; he was ordered to leave the country. In 1586 the -French Ambassador in England, L'Aubespine, conspired against the life of -Queen Elizabeth; he was simply warned not to commit a similar act again. -In 1654 the French Ambassador in England, De Bass, conspired against the -life of Cromwell; he was ordered to leave the country within twenty-four -hours.[739] - -[Footnote 739: These and other cases are discussed by Phillimore, II. §§ -160-165.] - -[Sidenote: Limitation of Inviolability.] - -§ 388. As diplomatic envoys are sacrosanct, the principle of their -inviolability is generally recognised. But there is one exception. For -if a diplomatic envoy commits an act of violence which disturbs the -internal order of the receiving State in such a manner as makes it -necessary to put him under restraint for the purpose of preventing -similar acts, or in case he conspires against the receiving State and -the conspiracy can be made futile only by putting him under restraint, -he may be arrested for the time being, although he must in due time be -safely sent home. Thus in 1717 the Swedish Ambassador Gyllenburg in -London, who was an accomplice in a plot against King George I., was -arrested and his papers were searched. In 1718 the Spanish Ambassador -Prince Cellamare in France was placed in custody because he organised a -conspiracy against the French Government.[740] And it must be emphasised -that a diplomatic envoy cannot make it a point of complaint if injured -in consequence of his own unjustifiable behaviour, as for instance in -attacking an individual who in self-defence retaliates, or in -unreasonably or wilfully placing himself in dangerous or awkward -positions, such as in a disorderly crowd.[741] - -[Footnote 740: Details regarding these cases are given by Phillimore, -II. §§ 166 and 170.] - -[Footnote 741: See article 6 of the rules regarding diplomatic -immunities adopted by the Institute of International Law at its meeting -at Cambridge in 1895 (Annuaire, XIV. p. 240).] - - -IX - -EXTERRITORIALITY OF DIPLOMATIC ENVOYS - - Vattel, IV. §§ 80-119--Hall, §§ 50, 52, 53--Westlake, I. pp. - 263-273--Phillimore, II. §§ 176-210--Taylor, §§ 299-315--Twiss, I. - §§ 217-221--Moore, II. §§ 291-304 and IV. §§ 660-669--Ullmann, § - 50--Geffcken in Holtzendorff, III. pp. 654-659--Nys, II. pp. - 353-385--Rivier, I. 38--Bonfils, Nos. 700-721--Pradier-Fodéré, - III. §§ 1396-1495--Mérignhac, II. pp. 249-293--Fiore, II. Nos. - 1145-1163--Calvo, III. §§ 1499-1531--Martens, II. §§ - 12-14--Gottschalck, "Die Exterritorialität der Gesandten" - (1878)--Heyking, "L'exterritorialité" (1889)--Odier, "Des - privilèges et immunités des agents diplomatiques" - (1890)--Vercamer, "Des franchises diplomatiques et spécialement de - l'exterritorialité" (1891)--Droin, "L'exterritorialité des agents - diplomatiques" (1895)--Mirre, "Die Stellung der völkerrechtlichen - Literatur zur Lehre von den sogenannten Nebenrechten der - gesandschaftlichen Functionäre" (1904). - -[Sidenote: Reason and Fictional Character of Exterritoriality.] - -§ 389. The exterritoriality which must be granted to diplomatic envoys -by the Municipal Laws of all the members of the Family of Nations is -not, as in the case of sovereign heads of States, based on the principle -_par in parem non habet imperium_, but on the necessity that envoys -must, for the purpose of fulfilling their duties, be independent of the -jurisdiction, the control, and the like, of the receiving States. -Exterritoriality, in this as in every other case, is a fiction only, for -diplomatic envoys are in reality not without, but within, the -territories of the receiving States. The term "Exterritoriality" is -nevertheless valuable, because it demonstrates clearly the fact that -envoys must in most points be treated as though they were not within -the territory of the receiving States.[742] And the so-called -exterritoriality of envoys is actualised by a body of privileges which -must be severally discussed. - -[Footnote 742: With a few exceptions (see Droin, "L'exterritorialité des -agents diplomatiques" (1895), pp. 32-43), all publicists accept the term -and the fiction of exterritoriality.] - -[Sidenote: Immunity of Domicile.] - -§ 390. The first of these privileges is immunity of domicile, the -so-called _Franchise de l'hôtel_. The present immunity of domicile has -developed from the former condition of things, when the official -residences of envoys were in every point considered to be outside the -territory of the receiving States, and when this exterritoriality was in -many cases even extended to the whole quarter of the town in which such -a residence was situated. One used then to speak of a _Franchise du -quartier_ or the _Jus quarteriorum_. And an inference from this -_Franchise du quartier_ was the so-called right of asylum, envoys -claiming the right to grant asylum within the boundaries of their -residential quarters to every individual who took refuge there.[743] But -already in the seventeenth century most States opposed this _Franchise -du quartier_, and it totally disappeared in the eighteenth century, -leaving behind, however, the claim of envoys to grant asylum within -their official residences. Thus, when in 1726 the Duke of Ripperda, -first Minister to Philip V. of Spain, who was accused of high treason -and had taken refuge in the residence of the English Ambassador in -Madrid, was forcibly arrested there by order of the Spanish Government, -the British Government complained of this act as a violation of -International Law.[744] Twenty-one years later, in 1747, a similar case -occurred in Sweden. A merchant named Springer was accused of high -treason and took refuge in the house of the English Ambassador at -Stockholm. On the refusal of the English envoy to surrender Springer, -the Swedish Government surrounded the embassy with troops and ordered -the carriage of the envoy, when leaving the embassy, to be followed by -mounted soldiers. At last Springer was handed over to the Swedish -Government under protest, but England complained and called back her -ambassador, as Sweden refused to make the required reparation.[745] As -these two examples show, the right of asylum, although claimed and often -conceded, was nevertheless not universally recognised. During the -nineteenth century all remains of it vanished, and when in 1867 the -French envoy in Lima claimed it, the Peruvian Government refused to -concede it.[746] - -[Footnote 743: Although this right of asylum was certainly recognised by -the States in former centuries, it is of interest to note that Grotius -did not consider it postulated by International Law, for he says of this -right (II. c. 18, § 8): "Ex concessione pendet ejus apud quem agit. -Istud enim juris gentium non est." See also Bynkershoek, "De foro -legat." c. 21.] - -[Footnote 744: See Martens, "Causes Célèbres," I. p. 178.] - -[Footnote 745: See Martens, "Causes Célèbres," II. p. 52.] - -[Footnote 746: The South American States, Chili excepted, still grant -the right to foreign envoys to afford asylum to political refugees in -time of revolution. It is, however, acknowledged that this right is not -based upon a rule of International Law, but merely upon _local_ usage. -See Hall, § 52; Westlake, I. p. 272; Moore, II. §§ 291-304; Chilbert in -A.J. III. (1909), pp. 562-595; Robbin in R.G. XV. (1908), pp. 461-508; -Moore, "Asylum in Legations and Consulates, and in Vessels" (1892). That -actually in times of revolution and of persecution of certain classes of -the population asylum is occasionally granted to refugees and respected -by the local authorities, there is no doubt, but this occasional -practice does not shake the validity of the general rule of -International Law according to which there is no obligation on the part -of the receiving State to grant to envoys the right of affording asylum -to individuals not belonging to their suites. See, however, Moore, II. -§ 293.] - -Nowadays the official residences of envoys are _in a sense and in some -respects only_ considered as though they were outside the territory of -the receiving States. For the immunity of domicile granted to diplomatic -envoys comprises the inaccessibility of these residences to officers of -justice, police, or revenue, and the like, of the receiving States -without the special consent of the respective envoys. Therefore, no act -of jurisdiction or administration of the receiving Governments can take -place within these residences, except by special permission of the -envoys. And the stables and carriages of envoys are considered to be -parts of their residences. But such immunity of domicile is granted -only in so far as it is necessary for the independence and inviolability -of envoys and the inviolability of their official documents and -archives. If an envoy abuses this immunity, the receiving Government -need not bear it passively. There is, therefore, no obligation on the -part of the receiving State to grant an envoy the right of affording -asylum to criminals or to other individuals not belonging to his suite. -Of course, an envoy need not deny entrance to criminals who want to take -refuge in the embassy. But he must surrender them to the prosecuting -Government at its request, and, if he refuses, any measures may be taken -to induce him to do so, apart from such as would involve an attack on -his person. Thus, the embassy may be surrounded by soldiers, and -eventually the criminal may even forcibly be taken out of the embassy. -But such measures of force are justifiable only if the case is an urgent -one, and after the envoy has in vain been required to surrender the -criminal. Further, if a crime is committed inside the house of an envoy -by an individual who does not enjoy personally the privilege of -exterritoriality, the criminal must be surrendered to the local -Government. The case of Nikitschenkow, which occurred in Paris in 1867, -is an instance thereof. Nikitschenkow, a Russian subject not belonging -to the Russian Legation, made an attempt on and wounded a member of that -legation within the precincts of the embassy. The French police were -called in and arrested the criminal. The Russian Government required his -extradition, maintaining that, as the crime was committed inside the -Russian Embassy, it fell exclusively under Russian jurisdiction; but the -French Government refused extradition and Russia dropped her claim. - -Again, an envoy has no right to seize a subject of his home State who is -within the boundaries of the receiving State and keep him under arrest -inside the embassy with the intention of bringing him away into the -power of his home State. An instance thereof is the case of the Chinaman -Sun Yat Sen which occurred in London in 1896. This was a political -refugee from China living in London. He was induced to enter the house -of the Chinese Legation and kept under arrest there in order to be -conveyed forcibly to China, the Chinese envoy contending that, as the -house of the legation was Chinese territory, the English Government had -no right to interfere. But the latter did interfere, and Sun Yat Sen was -released after several days. - -As a contrast to this case may be mentioned that of Kalkstein which -occurred on the Continent in 1670. Colonel von Kalkstein, a Prussian -subject, had fled to Poland for political reasons since he was accused -of high treason against the Prussian Government. Now Frederic William, -the great Elector of Brandenburg, ordered his diplomatic envoy at -Warsaw, the capital of Poland, to obtain possession of the person of -Kalkstein. On November 28, 1670, this order was carried out. Kalkstein -was secretly seized, and, wrapped up in a carpet, was carried across the -frontier. He was afterwards executed at Memel. - -[Sidenote: Exemption from Criminal and Civil Jurisdiction.] - -§ 391. The second privilege of envoys in reference to their -exterritoriality is their exemption from criminal and civil -jurisdiction. As their exemption from criminal jurisdiction is also a -consequence of their inviolability, it has already been discussed,[747] -and we have here to deal with their exemption from civil jurisdiction -only. No civil action of any kind as regards debts and the like can be -brought against them in the Civil Courts of the receiving States. They -cannot be arrested for debts, nor can their furniture, their carriages, -their horses, and the like, be seized for debts. They cannot be -prevented from leaving the country for not having paid their debts, nor -can their passports be refused to them on the same account. Thus, when -in 1772 the French Government refused the passports to Baron de Wrech, -the envoy of the Landgrave of Hesse-Cassel at Paris, for not having paid -his debts, all the other envoys in Paris complained of this act of the -French Government as a violation of International Law.[748] But the rule -that an envoy is exempt from civil jurisdiction has certain exceptions. -If an envoy enters an appearance to an action against himself, or if he -himself brings an action under the jurisdiction of the receiving State, -the courts of the latter have civil jurisdiction in such cases over him. -And the same is valid as regards real property held within the -boundaries of the receiving State by an envoy, not in his official -character, but as a private individual, and as regards mercantile[749] -ventures in which he might engage on the territory of the receiving -State. - -[Footnote 747: See above, §§ 387-388.] - -[Footnote 748: See Martens, "Causes Célèbres," II. p. 282.] - -[Footnote 749: The statute of 7 Anne, c. 12, on which the exemption of -diplomatic envoys from English jurisdiction is based, does not exclude -such envoy as embarks on mercantile ventures from the benefit of the -Act, and the practice of the English Courts grants, therefore, to -foreign envoys even in such cases exemption from local jurisdiction; see -the case (1859) of Magdalena Steam Navigation Co. _v._ Martin, 2 Ellis -and Ellis 94, overruling the case of Taylor _v._ Best, 14 C.B. 487. See -also Westlake, I. p. 267.] - -[Sidenote: Exemption from Subpoena as witness.] - -§ 392. The third privilege of envoys in reference to their -exterritoriality is exemption from subpoena as witnesses. No envoy -can be obliged, or even required, to appear as a witness in a civil or -criminal or administrative Court, nor is an envoy obliged to give -evidence before a Commissioner sent to his house. If, however, an envoy -chooses for himself to appear as a witness or to give evidence of any -kind, the Courts can make use of such evidence. A remarkable case of -this kind is that of the Dutch envoy Dubois in Washington, which -happened in 1856. A case of homicide occurred in the presence of M. -Dubois, and, as his evidence was absolutely necessary for the trial, the -Foreign Secretary of the United States asked Dubois to appear before the -Court as a witness, recognising the fact that Dubois had no duty to do -so. When Dubois, on the advice of all the other diplomatic envoys in -Washington, refused to comply with this desire, the United States -brought the matter before the Dutch Government. The latter, however, -approved of Dubois' refusal, but authorised him to give evidence under -oath before the American Foreign Secretary. As, however, such evidence -would have had no value at all according to the local law, Dubois' -evidence was not taken, and the Government of the United States asked -the Dutch Government to recall him.[750] - -[Footnote 750: See Wharton, I. § 98; Moore, IV. § 662; and Calvo, III. § -1520.] - -[Sidenote: Exemption from Police.] - -§ 393. The fourth privilege of envoys in reference to their -exterritoriality is exemption from the police of the receiving States. -Orders and regulations of the police do in no way bind them. On the -other hand, this exemption from police does not contain the privilege of -an envoy to do what he likes as regards matters which are regulated by -the police. Although such regulations can in no way bind him, an envoy -enjoys the privilege of exemption from police under the presupposition -that he acts and behaves in such a manner as harmonises with the -internal order of the receiving State. He is, therefore, expected to -comply voluntarily with all such commands and injunctions of the local -police as, on the one hand, do not restrict him in the effective -exercise of his duties, and, on the other hand, are of importance for -the general order and safety of the community. Of course, he cannot be -punished if he acts otherwise, but the receiving Government may request -his recall or even be justified in other measures of such a kind as do -not injure his inviolability. Thus, for instance, if in time of plague -an envoy were not voluntarily to comply with important sanitary -arrangements of the local police, and if there were great danger in -delay, a case of necessity would be created and the receiving Government -would be justified in the exercise of reasonable pressure upon the -envoy. - -[Sidenote: Exemption from Taxes and the like.] - -§ 394. The fifth privilege of envoys in reference to their -exterritoriality is exemption from taxes and the like. As an envoy, -through his exterritoriality, is considered not to be subjected to the -territorial supremacy of the receiving State, he must be exempt from all -direct personal taxation and therefore need not pay either income-tax or -other direct taxes. As regards rates, it is necessary to draw a -distinction. Payment of rates imposed for local objects from which an -envoy himself derives benefit, such as sewerage, lighting, water, -night-watch, and the like, can be required of the envoy, although this -is often[751] not done. Other rates, however, such as poor-rates and the -like, he cannot be requested to pay. As regards customs duties, -International Law does not claim the exemption of envoys therefrom. -Practically and by courtesy, however, the Municipal Laws of many States -allow diplomatic envoys within certain limits the entry free of duty of -goods intended for their own private use. If the house of an envoy is -the property of his home State or his own property, the house need not -be exempt from property tax, although it is often so by the courtesy of -the receiving State. Such property tax is not a personal and direct, but -an indirect tax. - -[Footnote 751: As, for instance, in England where the payment of local -rates cannot be enforced by suit or distress against a member of a -legation; see Parkinson _v._ Potter, 16 Q.B. 152, and Macartney _v._ -Garbutt, L.R. 24 Q.B. 368. See also Westlake, I. p. 268.] - -[Sidenote: Right of Chapel.] - -§ 395. A sixth privilege of envoys in reference to their -exterritoriality is the so-called Right of Chapel (_Droit de chapelle_ -or _Droit du culte_). This is the privilege of having a private chapel -for the practice of his own religion, which must be granted to an envoy -by the Municipal Law of the receiving State. A privilege of great worth -in former times, when freedom of religious worship was unknown in most -States, it has at present an historical value only. But it has not -disappeared, and might become again of actual importance in case a State -should in the future give way to reactionary intolerance. It must, -however, be emphasised that the right of chapel must only comprise the -privilege of religious worship in a private chapel inside the official -residence of the envoy. No right of having and tolling bells need be -granted. The privilege includes the office of a chaplain, who must be -allowed to perform every religious ceremony within the chapel, such as -baptism and the like. It further includes permission to all the -compatriots of the envoy, even if they do not belong to his retinue, to -take part in the service. But the receiving State need not allow its own -subjects to take part therein. - -[Sidenote: Self-jurisdiction.] - -§ 396. The seventh and last privilege of envoys in reference to their -exterritoriality is self-jurisdiction within certain limits. As the -members of his retinue are considered exterritorial, the receiving State -has no jurisdiction over them, and the home State may therefore delegate -such civil and criminal jurisdiction to the envoy. But no receiving -State is required to grant self-jurisdiction to an ambassador beyond a -certain reasonable limit. Thus, an envoy must have jurisdiction over his -retinue in matters of discipline, he must be able to order the arrest of -a member of his retinue who has committed a crime and is to be sent home -for his trial, and the like. But no civilised State would nowadays allow -an envoy himself to try a member of his retinue. This was done in former -centuries. Thus, in 1603, Sully, who was sent by Henri IV. of France on -a special mission to England, called together a French jury in London -and had a member of his retinue condemned to death for murder. The -convicted man was handed over for execution to the English authorities, -but James I. reprieved him.[752] - -[Footnote 752: See Martens, "Causes Célèbres," I. p. 391. See also the -two cases reported by Calvo, III. § 1545.] - - -X - -POSITION OF DIPLOMATIC ENVOYS AS REGARDS THIRD STATES - - Vattel, IV. §§ 84-86--Hall, §§ 99-101--Phillimore, II. §§ - 172-175--Taylor, §§ 293-295--Moore, IV. §§ 643-644--Twiss, I. § - 222--Wheaton, §§ 242-247--Ullmann, § 52--Geffcken in Holtzendorff, - III. pp. 665-668--Heffter, § 207--Rivier, § 39--Nys, II. p. - 390--Pradier-Fodéré, III. § 1394--Fiore, II. Nos. - 1143-1144--Calvo, III. §§ 1532-1539. - -[Sidenote: Possible Cases.] - -§ 397. Although, when an individual is accredited as diplomatic envoy by -one State to another, these two States only are directly concerned in -his appointment, the question must be discussed, what position such -envoy has as regards third States in those cases in which he comes in -contact with them. Several such cases are possible. An envoy may, first, -travel through the territory of a third State to reach the territory of -the receiving State. Or, an envoy accredited to a belligerent State and -living on the latter's territory may be found there by the other -belligerent who militarily occupies such territory. And, lastly, an -envoy accredited to a certain State might interfere with the affairs of -a third State. - -[Sidenote: Envoy travelling through Territory of third State.] - -§ 398. If an envoy travels through the territory of a third State -incognito or for his pleasure only, there is no doubt that he cannot -claim any special privileges whatever. He is in exactly the same -position as any other foreign individual travelling on this territory, -although by courtesy he might be treated with particular attention. But -matters are different when an envoy on his way from his own State to -the State of his destination travels through the territory of a third -State. If the sending and the receiving States are not neighbours, the -envoy probably has to travel through the territory of a third State. -Now, as the institution of legation is a necessary one for the -intercourse of States and is firmly established by International Law, -there ought to be no doubt whatever that such third State must grant the -right of innocent passage (_jus transitus innoxii_) to the envoy, -provided that it is not at war with the sending or the receiving State. -But no other privileges,[753] especially those of inviolability and -exterritoriality need be granted to the envoy. And the right of innocent -passage does not include the right to stop on the territory longer than -is necessary for the passage. Thus, in 1854, Soulé, the envoy of the -United States of America at Madrid, who had landed at Calais, intending -to return to Madrid _via_ Paris, was provisionally stopped at Calais for -the purpose of ascertaining whether he intended to make a stay in Paris, -which the French Government wanted to prevent, because he was a French -refugee naturalised in America and was reported to have made speeches -against the Emperor Napoleon. Soulé at once left Calais, and the French -Government declared, during the correspondence with the United States in -the matter, that there was no objection to Soulé's traversing France on -his way to Madrid, but they would not allow him to make a sojourn in -Paris or anywhere else in France.[754] - -[Footnote 753: The matter, which has always been disputed, is fully -discussed by Twiss, I. § 222, who also quotes the opinion of Grotius, -Bynkershoek, and Vattel.] - -[Footnote 754: See Wharton, I. § 97, and Moore, IV. § 643.] - -It must be specially remarked that no right of passage need be granted -if the third State is at war with the sending or receiving State. The -envoy of a belligerent, who travels through the territory of the other -belligerent to reach the place of his destination, may be seized and -treated as a prisoner of war. Thus, in 1744, when the French Ambassador, -Maréchal de Belle-Isle, on his way to Berlin, passed through the -territory of Hanover, which country was then, together with England, at -war with France, he was made a prisoner of war and sent to England. - -[Sidenote: Envoy found by Belligerent on occupied Enemy Territory.] - -§ 399. When in time of war a belligerent occupies the capital of an -enemy State and finds there envoys of other States, these envoys do not -lose their diplomatic privileges as long as the State to which they are -accredited is in existence. As military occupation does not extinguish a -State subjected thereto, such envoys do not cease to be envoys. On the -other hand, they are not accredited to the belligerent who has taken -possession of the territory by military force, and the question is not -yet settled by International Law how far the occupying belligerent has -to respect the inviolability and exterritoriality granted to such envoys -by the law of the land in compliance with a demand of International Law. -It may safely be maintained that he must grant them the right to leave -the occupied territory. But must he likewise grant them the right to -stay? Has he to respect their immunity of domicile and their other -privileges in reference to their exterritoriality? Neither customary -rules nor international conventions exist as regards these questions, -which must, therefore, be treated as open. The only case which occurred -concerning this problem is that of Mr. Washburne, ambassador of the -United States in Paris during the siege of that town in 1870 by the -Germans. This ambassador claimed the right of sending a messenger with -despatches to London in a sealed bag through the German lines. But the -Germans refused to grant that right, and did not alter their decision -although the Government of the United States protested.[755] - -[Footnote 755: See below, vol. II. § 157, and Wharton, I. § 97.] - -[Sidenote: Envoy interfering with affairs of a third State.] - -§ 400. There is no doubt that an envoy must not interfere with affairs -concerning the State to which he is accredited and a third State. If -nevertheless he does interfere, he enjoys no privileges whatever against -such third State. Thus, in 1734, the Marquis de Monti, the French envoy -in Poland, who took an active part in the war between Poland and Russia, -was made a prisoner of war by the latter and not released till 1736, -although France protested.[756] - -[Footnote 756: See Martens, "Causes Célèbres," I. p. 207.] - - -XI - -THE RETINUE OF DIPLOMATIC ENVOYS - - Vattel, IV. §§ 120-124--Hall, § 51--Phillimore, II. §§ - 186-193--Twiss, I. § 218--Moore, IV. §§ 664-665--Ullmann, §§ 47 - and 51--Geffcken in Holtzendorff, III. pp. 660-661--Heffter, § - 221--Rivier, I. pp. 458-461--Nys, II. pp. 386-390--Pradier-Fodéré, - III. §§ 1472-1486--Fiore, II. Nos. 1164-1168--Calvo, III. §§ - 1348-1350--Martens, II. § 16--Roederer, "De l'application des - immunités de l'ambassadeur au personnel de l'ambassade" (1904), - pp. 22-84. - -[Sidenote: Different Classes of Members of Retinue.] - -§ 401. The individuals accompanying an envoy officially, or in his -private service, or as members of his family, or as couriers, compose -his retinue. The members of the retinue belong, therefore, to four -different classes. All those individuals who are officially attached to -an envoy are members of the legation and are appointed by the home State -of the envoy. To this first class belong the Councillors, Attachés, -Secretaries of the Legation; the Chancellor of the Legation and his -assistants; the interpreters, and the like; the chaplain, the doctor, -and the legal advisers, provided that they are appointed by the home -State and sent specially as members of the legation. A list of these -members of legation is handed over by the envoy to the Secretary for -Foreign Affairs of the receiving State and is revised from time to time. -The Councillors and Secretaries of Legation are personally presented to -the Secretary for Foreign Affairs, and very often also to the head of -the receiving State. The second class comprises all those individuals -who are in the private service of the envoy and of the members of -legation, such as servants of all kinds, the private secretary of the -envoy, the tutor and the governess of his children. The third class -consists of the members of the family of the envoy--namely, his wife, -children, and such of his other near relatives as live within his family -and under his roof. And, lastly, the fourth class consists of the -so-called couriers. They are the bearers of despatches sent by the envoy -to his home State, who on their way back also bear despatches from the -home State to the envoy. Such couriers are attached to most legations -for the guarantee of the safety and secrecy of the despatches. - -[Sidenote: Privileges of Members of Legation.] - -§ 402. It is a universally recognised[757] rule of International Law -that all members of a legation are as inviolable and exterritorial as -the envoy himself. They must, therefore, be granted by the receiving -State exemption from criminal and civil jurisdiction, exemption from -police,[758] subpoena as witnesses, and taxes. They are considered, -like the envoy himself, to retain their domicile within their home -State. Children born to them during their stay within the receiving -State are considered born on the territory of the home State. And it -must be emphasised that it is not within the envoy's power to waive -these privileges of members of legation, although the home State itself -can waive these privileges. Thus when, in 1909, Wilhelm Beckert, the -Chancellor of the German Legation in Santiago de Chili, murdered the -porter of this legation, a Chilian subject, and then set fire to the -Chancery in order to conceal his embezzlements of money belonging to the -legation, the German Government consented to his being prosecuted in -Chili; he was tried, found guilty, and executed at Santiago on July 5, -1910. - -[Footnote 757: Some authors, however, plead for an abrogation of this -rule. See Martens, II. § 16.] - -[Footnote 758: A case of this kind occurred in 1904 in the United -States. Mr. Gurney, Secretary of the British Legation at Washington, was -fined by the police magistrate of Lee, in Massachusetts, for furiously -driving a motor-car. But the judgment was afterwards annulled, and the -fine imposed remitted.] - -[Sidenote: Privileges of Private Servants.] - -§ 403. It is a customary rule of International Law that the receiving -State must grant to all persons in the private service of the envoy and -of the members of his legation, provided such persons are not subjects -of the receiving State, exemption from civil and criminal -jurisdiction.[759] But the envoy can disclaim these exemptions, and -these persons cannot then claim exemption from police, immunity of -domicile, and exemption from taxes. Thus, for instance, if such a -private servant commits a crime outside the residence of his employer, -the police can arrest him; he must, however, be at once released if the -envoy does not waive the exemption from criminal jurisdiction. - -[Footnote 759: This rule seems to be everywhere recognised except in -Great Britain. When, in 1827, a coachman of Mr. Gallatin, the American -Minister in London, committed an assault outside the embassy, he was -arrested in the stable of the embassy and charged before a local -magistrate, and the British Foreign Office refused to recognise the -exemption of the coachman from the local jurisdiction. See Wharton, I. § -94, and Hall, § 50.] - -[Sidenote: Privileges of Family of Envoy.] - -§ 404. Although the wife of the envoy, his children, and such of his -near relatives as live within his family and under his roof belong to -his retinue, there is a distinction to be made as regards their -privileges. His wife must certainly be granted all his privileges in so -far as they concern inviolability and exterritoriality. As regards, -however, his children and other relatives, no general rule of -International Law can safely be said to be generally recognised, but -that they must be granted exemption from civil and criminal -jurisdiction. But even this rule was formerly not generally recognised. -Thus, when in 1653 Don Pantaleon Sà, the brother of the Portuguese -Ambassador in London and a member of his suite, killed an Englishman -named Greenway, he was arrested, tried in England, found guilty, and -executed.[760] Nowadays the exemption from civil and criminal -jurisdiction of such members of an envoy's family as live under his roof -is always granted. Thus, when in 1906 Carlo Waddington,[761] the son of -the Chilian envoy at Brussels, murdered the secretary of the Chilian -Legation, the Belgian authorities did not take any step to arrest him. -Two days afterwards, however, the Chilian envoy waived the privilege of -the immunity of his son, and on March 2 the Chilian Government likewise -agreed to the murderer being prosecuted in Belgium. The trial took place -in July 1907, but Waddington was acquitted by the Belgian jury. - -[Footnote 760: The case is discussed by Phillimore, II. § 169.] - -[Footnote 761: See R.G. XIV. (1907), pp. 159-165.] - -[Sidenote: Privileges of Couriers of Envoy.] - -§ 405. To insure the safety and secrecy of the diplomatic despatches -they bear, couriers must be granted exemption from civil and criminal -jurisdiction and afforded special protection during the exercise of -their office. It is particularly important to observe that they must -have the right of innocent passage through _third_ States, and that, -according to general usage, those parts of their luggage which contain -diplomatic despatches and are sealed with the official seal must not be -opened and searched. It is usual to provide couriers with special -passports for the purpose of their legitimation. - - -XII - -TERMINATION OF DIPLOMATIC MISSION - - Vattel, IV. §§ 125-126--Hall, § 98**--Phillimore, II. §§ - 237-241--Moore, IV. §§ 636, 639, 640, 666--Taylor, §§ - 320-323--Wheaton, §§ 250-251--Ullmann, § 53--Heffter, §§ - 223-226--Rivier, I. § 40--Nys, II. p. 392--Bonfils, Nos. - 730-732--Pradier-Fodéré, III. §§ 1515-1535--Fiore, II. Nos. - 1169-1175--Calvo, III. §§ 1363-1367--Martens, II. § 17. - -[Sidenote: Termination in contradistinction to Suspension.] - -§ 406. A diplomatic mission may come to an end from eleven different -causes--namely, accomplishment of the object for which the mission was -sent; expiration of such Letters of Credence as were given to an envoy -for a specific time only; recall of the envoy by the sending State; his -promotion to a higher class; the delivery of passports to him by the -receiving State; request of the envoy for his passports on account of -ill-treatment; war between the sending and the receiving State; -constitutional changes in the headship of the sending or receiving -State; revolutionary change of government of the sending or receiving -State; extinction of the sending or receiving State; and, lastly, death -of the envoy. These events must be treated singly on account of their -peculiarities. But the termination of diplomatic missions must not be -confounded with their suspension. Whereas from the foregoing eleven -causes a mission comes actually to an end, and new Letters of Credence -are necessary, a suspension does not put an end to the mission, but -creates an interval during which the envoy, although he remains in -office, cannot exercise his office. Suspension may be the result of -various causes, as, for instance, a revolution within the sending or -receiving State. Whatever the cause may be, an envoy enjoys all his -privileges during the duration of the suspension. - -[Sidenote: Accomplishment of Object of Mission.] - -§ 407. A mission comes to an end through the fulfilment of its objects -in all cases of missions for special purposes. Such cases may be -ceremonial functions like representations at weddings, funerals, -coronations; or notification of changes in the headship of a State, or -representation of a State at Conferences and Congresses; and other -cases. Although the mission is terminated through the accomplishment of -its object, the envoys enjoy all their privileges on their way home. - -[Sidenote: Expiration of Letter of Credence.] - -§ 408. If a Letter of Credence for a specified time only is given to an -envoy, his mission terminates with the expiration of such time. A -temporary Letter of Credence may, for instance, be given to an -individual for the purpose of representing a State diplomatically during -the interval between the recall of an ambassador and the appointment of -his successor. - -[Sidenote: Recall.] - -§ 409. The mission of an envoy, be he permanently or only temporarily -appointed, terminates through his recall by the sending State. If this -recall is not caused by unfriendly acts of the receiving State but by -other circumstances, the envoy receives a Letter of Recall from the -head, or, in case he is only a Chargé d'Affaires, from the Foreign -Secretary of his home State, and he[762] hands this letter over to the -head of the receiving State in a solemn audience, or in the case of a -Chargé d'Affaires to the Foreign Secretary. In exchange for the Letter -of Recall the envoy receives his passports and a so-called _Lettre de -récréance_, a letter in which the head of the receiving State (or the -Foreign Secretary) acknowledges the Letter of Recall. Although therewith -his mission ends, he enjoys nevertheless all his privileges on his home -journey.[763] A recall may be caused by the resignation of the envoy, by -his transference to another post, and the like. It may, secondly, be -caused by the outbreak of a conflict between the sending and the -receiving State which leads to a rupture of diplomatic intercourse, and -under these circumstances the sending State may order its envoy to ask -for his passports and depart at once without handing in a Letter of -Recall. And, thirdly, a recall may result from a request of the -receiving State by reason of real or alleged misconduct of the envoy. -Such request of recall[764] may lead to a rupture of diplomatic -intercourse, if the receiving State insists upon the recall, although -the sending State does not recognise the act of its envoy as misconduct. - -[Footnote 762: But sometimes his successor presents the letter recalling -his predecessor to the head of the receiving State, or to the Foreign -Secretary in the case of Chargés d'Affaires.] - -[Footnote 763: See the interesting cases discussed by Moore, IV. § 666.] - -[Footnote 764: Notable cases of request of recall of envoys are reported -by Taylor, § 322; Hall, § 98**; Moore, IV. § 639.] - -[Sidenote: Promotion to a higher Class.] - -§ 410. When an envoy remains at his post, but is promoted to a higher -class--for instance, when a Chargé d'Affaires is created a Minister -Resident or a Minister Plenipotentiary is created an Ambassador--his -original mission technically ends, and he receives therefore a new -Letter of Credence. - -[Sidenote: Delivery of Passports.] - -§ 411. A mission may terminate, further, through the delivery of his -passports to an envoy by the receiving State. The reason for such -dismissal of an envoy may be either gross misconduct on his part or a -quarrel between the sending and the receiving State which leads to a -rupture of diplomatic intercourse. Whenever such rupture takes place, -diplomatic relations between the two States come to an end and all -diplomatic privileges cease with the envoy's departing and crossing the -frontier. If the archives of the legations are not removed, they must be -put under seal by the departing envoy and confided to the -protection[765] of some other foreign legation. - -[Footnote 765: As regards the case of Montagnini, see above, §§ 106 and -386.] - -[Sidenote: Request for Passports.] - -§ 412. Without being recalled, an envoy may on his own account ask for -his passports and depart in consequence of ill-treatment by the -receiving State. This may or may not lead to a rupture of diplomatic -intercourse. - -[Sidenote: Outbreak of War.] - -§ 413. When war breaks out between the sending and the receiving State -before their envoys accredited to each other are recalled, their mission -nevertheless comes to an end. They receive their passports, but -nevertheless they must be granted their privileges[766] on their way -home. - -[Footnote 766: See below, vol. II. § 98.] - -[Sidenote: Constitutional Changes.] - -§ 414. If the head of the sending or receiving State is a Sovereign, his -death or abdication terminates the missions sent and received by him, -and all envoys remaining at their posts must receive new Letters of -Credence. But if they receive new Letters of Credence, no change in -seniority is considered to have taken place from the order in force -before the change. And during the time between the termination of the -missions and the arrival of new Letters of Credence they enjoy -nevertheless all the privileges of diplomatic envoys. - -As regards the influence of constitutional changes in the headship of -republics on the missions sent or received, no certain rule exists.[767] -Everything depends, therefore, upon the merits of the special case. - -[Footnote 767: Writers on International Law differ concerning this -point. See, for instance, Ullmann, § 53, in contradistinction to Rivier, -I. p. 517.] - -[Sidenote: Revolutionary Changes of Government.] - -§ 415. A revolutionary movement in the sending or receiving State which -creates a new government, changing, for example, a republic into a -monarchy or a monarchy into a republic, or deposing a Sovereign and -enthroning another, terminates the missions. All envoys remaining at -their posts must receive new Letters of Credence, but no change in -seniority takes place if they receive them. It happens that in cases of -revolutionary changes of government foreign States for some time neither -send new Letters of Credence to their envoys nor recall them, watching -the course of events in the meantime and waiting for more proof of a -real settlement. In such cases the envoys are, according to an -international usage, granted all privileges of diplomatic envoys, -although in strict law they have ceased to be such. In cases of recall -subsequent to revolutionary changes, the protection of subjects of the -recalling States remains in the hands of their consuls, since the -consular office[768] does not come to an end through constitutional or -revolutionary changes in the headship of a State. - -[Footnote 768: See below, § 438.] - -[Sidenote: Extinction of sending or receiving State.] - -§ 416. If the sending or receiving State of a mission is extinguished by -voluntary merger into another State or through annexation in consequence -of conquest, the mission terminates _ipso facto_. In case of annexation -of the receiving State, there can be no doubt that, although the -annexing State will not consider the envoys received by the annexed -State as accredited to itself, it must grant those envoys the right to -leave the territory of the annexed State unmolested and to take their -archives away with them. In case of annexation of the sending State, the -question arises what becomes of the archives and legational property of -the missions of the annexed State accredited to foreign States. This -question is one on the so-called succession[769] of States. The annexing -State acquires, _ipso facto_, by the annexation the property in those -archives and other legational goods, such as the hotels, furniture, and -the like. But as long as the annexation is not notified and recognised, -the receiving States have no duty to interfere. - -[Footnote 769: See above, § 82.] - -[Sidenote: Death of Envoy.] - -§ 417. A mission ends, lastly, by the death of the envoy. As soon as an -envoy is dead, his effects, and especially his papers, must be sealed. -This is done by a member of the dead envoy's legation, or, if there be -no such members, by a member of another legation accredited to the same -State. The local Government must not interfere, unless at the special -request by the home State of the deceased envoy. - -Although the mission and therefore the privileges of the envoy come to -an end by his death, the members of his family who resided under his -roof and the members of his suite enjoy their privileges until they -leave the country. But a certain time may be fixed for them to depart, -and on its expiration they lose their privilege of exterritoriality. It -must be specially mentioned that the Courts of the receiving State have -no jurisdiction whatever over the goods and effects of the deceased -envoy, and that no death duties can be demanded. - - - - -CHAPTER III - -CONSULS - - -I - -THE INSTITUTION OF CONSULS - - Hall, § 105--Phillimore, II. §§ 243-246--Halleck, I. p. - 369--Taylor, §§ 325-326--Twiss, I. § 223--Ullmann, §§ - 54-55--Bulmerincq in Holtzendorff, II. pp. 687-695--Heffter, §§ - 241-242--Rivier, I. § 41--Nys, II. pp. 394-399--Calvo, III. §§ - 1368-1372--Bonfils, Nos. 731-743--Pradier-Fodéré, IV. §§ - 2034-2043--Martens, II. §§ 18-19--Fiore, II. Nos. - 1176-1178--Warden, "A Treatise on the Origin, Nature, &c., of the - Consular Establishment" (1814)--Miltitz, Manuel des Consuls, 5 - vols. (1837-1839)--Cussy, "Règlements consulaires des principaux - États maritimes" (1851)--H. B. Oppenheim, "Handbuch der Consulate - aller Länder" (1854)--Clercq et Vallat, "Guide pratique des - consulats" (5th ed. 1898)--Salles, "L'institution des consulats, - son origine, &c." (1898)--Chester Lloyd Jones, "The Consular - Service of the United States. Its History and Activities" - (1906)--Stowell, "Le Consul" (1909), and "Consular Cases and - Opinions, &c." (1910)--Pillaut, "Manuel de droit Consulaire" - (1910)--Jordan in R.I. 2nd Ser. VIII. (1906), pp. 479-507 and - 717-750. - -[Sidenote: Development of the Institution of Consuls.] - -§ 418. The roots of the consular institution go back to the second half -of the Middle Ages. In the commercial towns of Italy, Spain, and France -the merchants used to appoint by election one or more of their -fellow-merchants as arbitrators in commercial disputes, who were called -_Juges Consuls_ or _Consuls Marchands_. When, between and after the -Crusades, Italian, Spanish, and French merchants settled down in the -Eastern countries, founding factories, they brought the institution of -consuls with them, the merchants belonging to the same nation electing -their own consul. The competence of these consuls became, however, more -and more enlarged through treaties, so-called "Capitulations," between -the home States of the merchants and the Mohammedan monarchs on whose -territories these merchants had settled down.[770] The competence of -consuls comprised at last the whole civil and criminal jurisdiction -over, and protection of, the privileges, the life, and the property of -their countrymen. From the East the institution of consuls was -transferred to the West. Thus, in the fifteenth century Italian consuls -existed in the Netherlands and in London, English consuls in the -Netherlands, Sweden, Norway, Denmark, Italy (Pisa). These consuls in the -West exercised, just as those in the East, exclusive civil and criminal -jurisdiction over the merchants of their nationality. But the position -of the consuls in the West decayed in the beginning of the seventeenth -century through the influence of the rising permanent legations on the -one hand, and, on the other, from the fact that everywhere foreign -merchants were brought under the civil and criminal jurisdiction of the -State in which they resided. This change in their competence altered the -position of consuls in the Christian States of the West altogether. -Their functions now shrank into a general supervision of the commerce -and navigation of their home States, and into a kind of protection of -the commercial interests of their countrymen. Consequently, they did not -receive much notice in the seventeenth and eighteenth centuries, and it -was not until the nineteenth century that the general development of -international commerce, navigation, and shipping drew the attention of -the Governments again to the value and importance of the institution of -consuls. The institution was now systematically developed. The position -of the consuls, their functions, and their privileges, were the subjects -of stipulations either in commercial treaties or in special consular -treaties,[771] and the several States enacted statutes regarding the -duties of their consuls abroad, such as the Consular Act passed by -England in 1826.[772] - -[Footnote 770: See Twiss, I. §§ 253-263.] - -[Footnote 771: Phillimore, II. § 255, gives a list of such treaties.] - -[Footnote 772: 6 Geo. IV. c. 87.] - -[Sidenote: General Character of Consuls.] - -§ 419. Nowadays consuls are agents of States residing abroad for -purposes of various kinds, but mainly in the interests of commerce and -navigation of the appointing State. As they are not diplomatic -representatives, they do not enjoy the privileges of diplomatists. Nor -have they, ordinarily, anything to do with intercourse between their -home State and the State in which they reside. But these rules have -exceptions. Consuls of Christian Powers in non-Christian States, Japan -now excepted, have retained their former competence and exercise full -civil and criminal jurisdiction over their countrymen. And sometimes -consuls are charged with the tasks which are regularly fulfilled by -diplomatic representatives. Thus, in States under suzerainty the Powers -are frequently represented by consuls, who transact all the business -otherwise transacted by diplomatic representatives, and who have, -therefore, often the title of "Diplomatic Agents." Thus, too, on -occasions small States, instead of accrediting diplomatic envoys to -another State, send only a consul thither, who combines the consular -functions with those of a diplomatic envoy. It must, however, be -emphasised that consuls thereby neither become diplomatic envoys, -although they may have the title of "Diplomatic Agents," nor enjoy the -diplomatic envoys' privileges, if such privileges are not specially -provided for by treaties between the home State and the State in which -they reside. Different, however, is the case in which a consul is at the -same time accredited as Chargé d'Affaires, and in which, therefore, he -combines two different offices; for as Chargé d'Affaires he is a -diplomatic envoy and enjoys all the privileges of such an envoy, -provided he has received a Letter of Credence. - - -II - -CONSULAR ORGANISATION - - Hall, "Foreign Powers and Jurisdiction," § 13--Phillimore, II. §§ - 253-254--Halleck, I. p. 371--Taylor, § 528--Moore, V. § - 696--Ullmann, § 57--Bulmerincq in Holtzendorff, III. pp. - 695-701--Rivier, I. § 41--Calvo, III. §§ 1373-1376--Bonfils, Nos. - 743-748--Pradier-Fodéré, IV. §§ 2050-2055--Mérignhac, II. pp. - 320-333--Martens, II. § 20--Stowell, "Le Consul," pp. - 186-206--"General Instructions for His Majesty's Consular - Officers" (1907). - -[Sidenote: Different kinds of Consuls.] - -§ 420. Consuls are of two kinds. They are either specially sent and paid -for the administration of their consular office (_Consules missi_), or -they are appointed from individuals, in most cases merchants, residing -in the district for which they are to administer the consular office -(_Consules electi_).[773] Consuls of the first kind, who are so-called -professional consuls and are always subjects of the sending State, have -to devote their whole time to the consular office. Consuls of the second -kind, who may or may not be subjects of the sending State, administer -the consular office besides following their ordinary callings. Some -States, such as France, appoint professional consuls only; most States, -however, appoint Consuls of both kinds according to the importance of -the consular districts. But there is a general tendency with most States -to appoint professional consuls for important districts. - -[Footnote 773: To this distinction corresponds in the British Consular -Service the distinction between "Consular Officers" and "Trading -Consular Officers."] - -No difference exists between the two kinds of consuls as to their -general position according to International Law. But, naturally, a -professional consul enjoys actually a greater authority and a more -important social position, and consular treaties often stipulate special -privileges for professional consuls. - -[Sidenote: Consular Districts.] - -§ 421. As the functions of consuls are of a more or less local -character, most States appoint several consuls on the territory of other -larger States, limiting the duties of the several consuls within -certain districts of such territories or even within a certain town or -port only. Such consular districts as a rule coincide with provinces of -the State in which the consuls administer their offices. The different -consuls appointed by a State for different districts of the same State -are independent of each other and conduct their correspondence directly -with the Foreign Office of their home State, the agents-consular -excepted, who correspond with their nominators only. The extent of the -districts is agreed upon between the home State of the consul and the -admitting State. Only the consul appointed for a particular district is -entitled to exercise consular functions within its boundaries, and to -him only the local authorities have to grant the consular privileges, if -any. - -[Sidenote: Different Classes of Consuls.] - -§ 422. Four classes of consuls are generally distinguished according to -rank: consuls-general, consuls, vice-consuls, and agents-consular. -Consuls-general are appointed either as the head of several consular -districts, and have then several consuls subordinate to themselves, or -as the head of one very large consular district. Consuls are usually -appointed for smaller districts, and for towns or even ports only. -Vice-consuls are such assistants of consuls-general and consuls as -themselves possess the consular character and take, therefore, the -consul's place in regard to the whole consular business; they are, -according to the Municipal Law of some States, appointed by the consul, -subject to the approbation of his home State. Agents-consular are agents -with consular character, appointed, subject to the approbation of the -home Government, by a consul-general or consul for the exercise of -certain parts of the consular functions in certain towns or other places -of the consular district. Agents-consular are not independent of the -appointing consul, and do not correspond directly with the home State, -as the appointing consul is responsible to his Government for the -agents-consular. The so-called Proconsul is not a consul, but a _locum -tenens_ of a consul only during the latter's temporary absence or -illness; he possesses, therefore, consular character for such time only -as he actually is the _locum tenens_. - -The British Consular Service consists of the following six ranks: (1) -Agents and consuls-general, commissioners and consuls-general; (2) -consuls-general; (3) consuls; (4) vice-consuls; (5) consular agents; (6) -proconsuls. In the British Consular Service pro-consuls only exercise, -as a rule, the notarial functions of a consular officer. - -[Sidenote: Consuls subordinate to Diplomatic Envoys.] - -§ 423. Although consuls conduct their correspondence directly with their -home Government, they are nevertheless, subordinate to the diplomatic -envoy of their home Government accredited to the State in which they -administer the consular offices. According to the Municipal Law of -almost every State except the United States of America, the diplomatic -envoy has full authority and control over the consuls. He can give -instructions and orders, which they have to execute. In doubtful cases -they have to ask his advice and instructions. On the other hand, the -diplomatic envoy has to protect the consuls in case they are injured by -the local Government. - - -III - -APPOINTMENT OF CONSULS - - Hall, § 105--Phillimore, II. § 250--Halleck, I. p. 371--Moore, V. - §§ 697-700--Ullmann, § 58--Bulmerincq in Holtzendorff, III. pp. - 702-706--Rivier, I. § 41--Nys, II. p. 400--Calvo, III. §§ - 1378-1384--Bonfils, Nos. 749-752--Pradier-Fodéré, IV. §§ - 2056-2067--Fiore, II. Nos. 1181-1182--Martens, II. § 21--Stowell, - "Le Consul," pp. 207-216. - -[Sidenote: Qualification of Candidates.] - -§ 424. International Law has no rules in regard to the qualifications of -an individual whom a State can appoint consul. Many States, however, -possess such rules in their Municipal Law as far as professional -consuls are concerned. The question, whether female consuls could be -appointed, cannot be answered in the negative, but, on the other hand, -no State is obliged to grant female consuls the _exequatur_, and many -States would at present certainly refuse it. - -[Sidenote: No State obliged to admit Consuls.] - -§ 425. According to International Law a State is not at all obliged to -admit consuls. But the commercial interests of all the States are so -powerful that practically every State must admit consuls of foreign -Powers, as a State which refused such admittance would in its turn not -be allowed to have its own consuls abroad. The commercial and consular -treaties between two States stipulate as a rule that the contracting -States shall have the right to appoint consuls in all those parts of -each other's country in which consuls of third States are already or -shall in future be admitted. Consequently a State cannot refuse -admittance to a consul of one State for a certain district if it admits -a consul of another State. But as long as a State has not admitted any -other State's consul for a district, it can refuse admittance to a -consul of the State anxious to organise consular service in that -district. Thus, for instance, Russia refused for a long time for -political reasons to admit consuls in Warsaw. - -[Sidenote: What kind of States can appoint Consuls.] - -§ 426. There is no doubt that it is within the faculty of every -full-Sovereign State to appoint consuls. As regards not full-Sovereign -States, everything depends upon the special case. As foreign States can -appoint consuls in States under suzerainty, it cannot be doubted that, -provided the contrary is not specially stipulated between the vassal and -the suzerain State, and provided the vassal State is not one which has -no position within the Family of Nations,[774] a vassal State is in its -turn competent to appoint consuls in foreign States. In regard to -member-States of a Federal State it is the Constitution of the Federal -State which settles the question. Thus, according to the Constitution of -Germany, the Federal State is exclusively competent to appoint consuls, -in contradistinction to diplomatic envoys who may be sent and received -by every member-State of the German Empire. - -[Footnote 774: See above, § 91.] - -[Sidenote: Mode of Appointment and of Admittance.] - -§ 427. Consuls are appointed through a patent or commission, the -so-called _Lettre de provision_, of the State whose consular office they -are intended to administer. Vice-consuls are sometimes, and -agents-consular are always, appointed by the consul, subject to the -approval of the home State. Admittance of consuls takes place through -the so-called _exequatur_, granted by the head of the admitting -State.[775] The diplomatic envoy of the appointing State hands the -patent of the appointed consul on to the Secretary for Foreign Affairs -for communication to the head of the State, and the _exequatur_ is given -either in a special document or by means of the word _exequatur_ written -across the patent. But the _exequatur_ can be refused for personal -reasons. Thus, in 1869 England refused the _exequatur_ to an Irishman -named Haggerty, who was naturalised in the United States and appointed -American consul for Glasgow. And the _exequatur_ can be withdrawn for -personal reasons at any moment. Thus, in 1834 France withdrew it from -the Prussian consul at Bayonne for having helped in getting into Spain -supplies of arms for the Carlists. - -[Footnote 775: That, in case a consul is appointed for a State which is -under the protectorate of another, it is within the competence of the -latter to grant or refuse the _exequatur_, has been pointed out above, § -92, p. 144, note 4.] - -[Sidenote: Appointment of Consuls includes Recognition.] - -§ 428. As the appointment of consuls takes place in the interests of -commerce, industry, and navigation, and has merely local importance -without political consequences, it is maintained[776] that a State does -not indirectly recognise a newly created State _ipso facto_ by -appointing a consul to a district in such State. This opinion, however, -does not agree with the facts of international life. Since no consul can -exercise his functions before he has handed over his patent to the local -State and received the latter's _exequatur_, it is evident that thereby -the appointing State enters into such formal intercourse with the -admitting State as indirectly[777] involves recognition. But it is only -if consuls are formally appointed and formally receive the _exequatur_ -on the part of the receiving State, that indirect recognition is -involved. If, on the other hand, no formal[778] appointment is made, and -no formal _exequatur_ is asked for and received, foreign individuals may -actually with the consent of the local State exercise the functions of -consuls without recognition following therefrom. Such individuals are -not really consuls, although the local State allows them for political -reasons to exercise consular functions. - -[Footnote 776: Hall, §§ 26* and 105, and Moore, I. § 72.] - -[Footnote 777: See above, § 72.] - -[Footnote 778: The case mentioned by Hall, § 26*, of Great Britain -appointing, in 1823, consuls to the South American Republics, without -gazetting the various consuls and--as must be presumed--without the -individuals concerned asking formally for the _exequatur_ of the various -South American States, would seem to be a case of informal appointment.] - - -IV - -FUNCTIONS OF CONSULS - - Hall, § 105--Phillimore, II. §§ 257-260--Taylor, § 327--Halleck, - I. pp. 380-385--Moore, V. §§ 717-731--Ullmann, § 61--Bulmerincq in - Holtzendorff, III. pp. 738-749--Rivier, I. § 42--Calvo, III. §§ - 1421-1429--Bonfils, Nos. 762-771--Pradier-Fodéré, IV. §§ - 2069-2113--Fiore, II. Nos. 1184-1185--Martens, II. § 23--Stowell, - "Le Consul," pp. 15-136. - -[Sidenote: On Consular Functions in general.] - -§ 429. Although consuls are appointed chiefly in the interest of -commerce, industry, and navigation, they are nevertheless charged with -various functions for other purposes. Custom, commercial and consular -treaties, Municipal Laws, and Municipal Consular Instructions contain -detailed rules in regard to these functions. They may be grouped under -the heads of fosterage of commerce and industry, supervision of -navigation, protection, notarial functions. - -[Sidenote: Fosterage of Commerce and Industry.] - -§ 430. As consuls are appointed in the interest of commerce and -industry, they must be allowed by the receiving State to watch over the -execution of the commercial treaties of their home State, to send -reports to the latter in regard to everything which can influence the -development of its commerce and industry, and to give such information -to merchants and manufacturers of the appointing State as is necessary -for the protection of their commercial interests. Municipal Laws of the -several States and their Consular Instructions comprise detailed rules -on these consular functions, which are of the greatest importance. -Consular reports, on the one hand, and consular information to members -of the commercial world, on the other, have in the past and the present -rendered valuable assistance to the development of commerce and industry -of their home States. - -[Sidenote: Supervision of Navigation.] - -§ 431. Another task of consuls consists in supervision of the navigation -of the appointing State. A consul at a port must be allowed to keep his -eye on all merchantmen sailing under the flag of his home State which -enter the port, to control and legalise their ship papers, to exercise -the power of inspecting them on their arrival and departure, to settle -disputes between the master and the crew or the passengers. He assists -sailors in distress, undertakes the sending home of shipwrecked crews -and passengers, attests averages. It is neither necessary nor possible -to enumerate all the duties and powers of consuls in regard to -supervision of navigation. Consular and commercial treaties, on the one -hand, and, on the other, Municipal Laws and Consular Instructions, -comprise detailed rules regarding these consular functions. It should, -however, be added that consuls must assist in every possible way any -public vessel of their home State which enters their port, if the -commander so requests. But consuls have no power of supervision over -such public vessels. - -[Sidenote: Protection.] - -§ 432. The protection which consuls must be allowed by the receiving -State to provide for subjects of the appointing State is a very -important task. For that purpose consuls keep a register, in which these -subjects can have their names and addresses recorded. Consuls make out -passports, they have to render a certain assistance and help to paupers -and the sick, and to litigants before the Courts. If a foreign subject -is wronged by the local authorities, his consul has to give him advice -and help, and has eventually to interfere on his behalf. If a foreigner -dies, his consul may be approached for securing his property and for -rendering all kind of assistance and help to the family of the deceased. - -As a rule, a consul exercises protective functions over subjects of the -appointing State only; but the latter may charge him with the protection -of subjects of other States which have not nominated a consul for his -district. - -[Sidenote: Notarial Functions.] - -§ 433. Very important are the notarial and the like functions with which -consuls are charged. They attest and legalise signatures, examine -witnesses and administer oaths for the purpose of procuring evidence for -the Courts and other authorities of the appointing State. They conclude -or register marriages of the latter's subjects, take charge of their -wills, legalise their adoptions, register their births and deaths. They -provide authorised translations for local as well as for home -authorities, and furnish attestations of many kinds. All consular -functions of this kind are specialised by Municipal Laws and Consular -Instructions. But it should be specially observed that whereas fosterage -of commerce, supervision of navigation, and protection are functions -the exercise of which must, according to a customary rule of -International Law, be granted to consuls by receiving States, many of -their notarial functions need not be permitted by such receiving States -in the absence of treaty stipulations. - - -V - -POSITION AND PRIVILEGES OF CONSULS - - Hall, § 105--Phillimore, II. §§ 261-271--Halleck, I. pp. - 371-379--Taylor, §§ 326, 332-333--Moore, V. §§ 702-716--Ullmann, - §§ 60 and 62--Bulmerincq in Holtzendorff, III. pp. - 710-720--Rivier, I. § 42--Calvo, III. §§ 1385-1420--Bonfils, Nos. - 753-761--Pradier-Fodéré, IV. §§ 2114-2121--Fiore, II. No. - 1183--Martens, II. § 22--Bodin, "Les immunités consulaires" - (1899)--Stowell, "Le Consul," pp. 137-185. - -[Sidenote: Position.] - -§ 434. Like diplomatic envoys, consuls are simply objects of -International Law. Such rights as they have are granted to them by -Municipal Laws in compliance with rights of the appointing States -according to International Law.[779] As regards their position, it -should nowadays be an established and uncontested fact that consuls do -not enjoy the position of diplomatic envoys, since no Christian State -actually grants to foreign consuls the privileges of diplomatic agents. -On the other hand, it would be incorrect to maintain that their position -is in no way different from that of any other individual living within -the consular district. Since they are appointed by foreign States and -have received the _exequatur_, they are publicly recognised by the -admitting State as agents of the appointing State. Of course, consuls -are not diplomatic representatives, for they do not represent the -appointing States in the totality of their international relations, but -for a limited number of tasks and for local purposes only. Yet they -bear a recognised public character, in contradistinction to mere private -individuals, and, consequently, their position is different from that of -mere private individuals. This is certainly the case with regard to -professional consuls, who are officials of their home State and are -specially sent to the foreign State for the purpose of administering the -consular office. But in regard to non-professional consuls it must -likewise be maintained that the admitting State by granting the -_exequatur_ recognises their official position towards itself, which -demands at least a special protection[780] of their persons and -residences. The official position of consuls, however, does not involve -direct intercourse with the Government of the admitting State. Consuls -are appointed for _local_ purposes only, and they have, therefore, -direct intercourse with the _local authorities_ only. If they want to -approach the Government itself, they can do so only through the -diplomatic envoy, to whom they are subordinate. - -[Footnote 779: See above, § 384.] - -[Footnote 780: According to British and American practice a consul of a -neutral Power accredited to the enemy State who embarks upon mercantile -ventures, is not by his official position protected against seizure of -his goods carried by enemy vessels, for by trading in the enemy country -he acquires to a certain extent enemy character; see the case of the -Indian Chief, 3 C. Rob. 12.] - -[Sidenote: Consular Privileges.] - -§ 435. From the undoubted official position of consuls no universally -recognised privileges of importance emanate as yet. Apart from the -special protection due to consuls according to International Law, there -is neither a custom nor a universal agreement between the Powers to -grant them important privileges. Such privileges as consuls actually -enjoy are granted to them either by courtesy or in compliance with -special stipulations of a Commercial or Consular Treaty between the -sending and the admitting State. I doubt not that in time the Powers -will agree upon a universal treaty in regard to the position and -privileges of consuls.[781] Meanwhile, it is of interest to take notice -of some of the more important stipulations which are to be found in the -innumerable treaties between the several States in regard to consular -privileges: - -[Footnote 781: The Institute of International Law at its meeting at -Venice in 1896 adopted a _Règlement sur les immunités consulaires_ -comprising twenty-one articles. See Annuaire, XV. p. 304.] - -(1) A distinction is very often made between professional and -non-professional consuls in so far as the former are accorded more -privileges than the latter. - -(2) Although consuls are not exempt from the local civil and criminal -jurisdiction, the latter is in regard to professional consuls often -limited to crimes of a more serious character. - -(3) In many treaties it is stipulated that consular archives shall be -inviolable from search or seizure. Consuls are therefore obliged to keep -their official documents and correspondence separate from their private -papers. - -(4) Inviolability of the consular buildings is also sometimes -stipulated, so that no officer of the local police, Courts, and so on, -can enter these buildings without special permission of the consul. But -it is then the duty of consuls to surrender criminals who have taken -refuge in these buildings. - -(5) Professional consuls are often exempt from all kinds of rates and -taxes, from the liability to have soldiers quartered in their houses, -and from the duty to appear in person as witnesses before the Courts. In -the latter case consuls have either to send in their evidence in -writing, or their evidence may be taken by a commission on the premises -of the consulate. - -(6) Consuls of all kinds have the right to put up the arms of the -appointing State over the door of the consular building and to hoist the -national flag. - - -VI - -TERMINATION OF CONSULAR OFFICE - - Hall, § 105--Moore, V. § 701--Ullmann, § 59--Bulmerincq in - Holtzendorff, III. p. 708--Rivier, I. § 41--Calvo, III. §§ 1382, - 1383, 1450--Bonfils, No. 775--Fiore, II. No. 1187--Martens, II. § - 21--Stowell "Le Consul," pp. 217-222. - -[Sidenote: Undoubted Causes of Termination.] - -§ 436. Death of the consul, withdrawal of the _exequatur_, recall or -dismissal, and, lastly, war between the appointing and the admitting -State, are universally recognised causes of termination of the consular -office. When a consul dies or war breaks out, the consular archives must -not be touched by the local authorities. They remain either under the -care of an _employé_ of the consulate, or a consul of another State -takes charge of them until the successor of the deceased arrives or -peace is concluded. - -[Sidenote: Doubtful Causes of Termination.] - -§ 437. It is not certain in practice whether the office of a consul -terminates when his district, through cession, conquest followed by -annexation, or revolt, becomes the property of another State. The -question ought to be answered in the affirmative, because the -_exequatur_ given to such consul originates from a Government which then -no longer possesses the territory. A practical instance of this question -occurred in 1836, when Belgium, which was then not yet recognised by -Russia, declared that she would henceforth no longer treat the Russian -consul Aegi at Antwerp as consul, because he was appointed before the -revolt and had his _exequatur_ granted by the Government of the -Netherlands. Although Belgium gave way in the end to the urgent -remonstrances of Russia, her original attitude was legally correct. - -[Sidenote: Change in the Headship of States not Cause of Termination.] - -§ 438. It is universally recognised that, in contradistinction to a -diplomatic mission, the consular office does not come to an end through -a change in the headship of the appointing or the admitting State. -Neither a new patent nor a new _exequatur_ is therefore necessary -whether another king comes to the throne or a monarchy turns into a -republic, or in any like case. - - -VII - -CONSULS IN NON-CHRISTIAN STATES - - Tarring, "British Consular Jurisdiction in the East" (1887)--Hall, - "Foreign Powers and Jurisdiction," §§ 64-85--Halleck, I. pp. - 385-398--Phillimore, II. §§ 272-277--Taylor, §§ 331-333--Twiss, I. - § 136--Wheaton, § 110--Ullmann, §§ 63-65--Bulmerincq in - Holtzendorff, III. pp. 720-738--Rivier, I. § 43--Nys, II. pp. - 400-414--Calvo, III. §§ 1431-1449--Bonfils, Nos. - 776-791--Pradier-Fodéré, IV. 2122-2138--Mérignhac, II. pp. - 338-351--Martens, II. §§ 24-26--Martens, "Konsularwesen und - Konsularjurisdiction im Orient" (German translation from the - Russian original by Skerst, 1874)--Bruillat, "Étude historique et - critique sur les juridictions consulaires" (1898)--Lippmann, "Die - Konsularjurisdiction im Orient" (1898)--Vergé, "Des consuls dans - les pays d'occident" (1903)--Hinckley, "American Consular - Jurisdiction in the Orient" (1906)--Piggott, "Exterritoriality. - The Law relating to Consular Jurisdiction, &c. in Oriental - Countries" (new edition, 1907)--Mandelstam, "La justice ottomane - dans ses rapports avec les puissances étrangères" (1911), and in - R.G. XIV. (1907), pp. 5 and 534, and XV. (1908), pp. 329-384. - -[Sidenote: Position of Consuls in non-Christian States.] - -§ 439. Fundamentally different from the regular position is that of -consuls in non-Christian States, with the single exception of Japan. In -the Christian countries of the West alone consuls have, as has been -stated before (§ 418), lost jurisdiction over the subjects of the -appointing States. In the Mohammedan States consuls not only retained -their original jurisdiction, but the latter became by-and-by so extended -through the so-called Capitulations that the competence of consuls soon -comprised the whole civil and criminal jurisdiction, the power of -protection of the privileges, the life, and property of their -countrymen, and even the power to expel one of their countrymen for bad -conduct. And custom and treaties secured to consuls inviolability, -exterritoriality, ceremonial honours, and miscellaneous other rights, so -that there is no doubt that their position is materially the same as -that of diplomatic envoys. From the Mohammedan countries this position -of consuls has been extended and transferred to China, Japan, Persia, -and other non-Christian countries, but in Japan the position of consuls -shrank in 1899 into that of consuls in Christian States. - -[Sidenote: Consular Jurisdiction in non-Christian States.] - -§ 440. International custom and treaties lay down the rule only that all -the subjects of Christian States residing in non-Christian States shall -remain under the jurisdiction of the home State as exercised by their -consuls.[782] It is a matter for the Municipal Laws of the several -Christian States to organise this consular jurisdiction. All States have -therefore enacted statutes dealing with this matter. As regards Great -Britain, several Orders in Council and the Foreign Jurisdiction Act (53 -& 54 Vict., c. 37) of 1890 are now the legal basis of the consular -jurisdiction.[783] The working of this consular jurisdiction is, -however, not satisfactory in regard to the so-called mixed cases. As the -national consul has exclusive jurisdiction over the subjects of his home -State, he exercises this jurisdiction also in cases in which the -plaintiff is a native or a subject of another Christian State, and which -are therefore called mixed cases. - -[Footnote 782: See above, § 318.] - -[Footnote 783: See Piggott, _op. cit._] - -[Sidenote: International Courts in Egypt.] - -§ 441. To overcome in some points the disadvantages of the consular -jurisdiction, an interesting experiment is being made in Egypt. On the -initiative of the Khedive, most of the Powers in 1875 agreed upon an -organisation of International Courts in Egypt for mixed cases.[784] -These Courts began their functions in 1876. They are in the main -competent for mixed civil cases, mixed criminal cases of importance -remaining under the jurisdiction of the national consuls. There are -three International Courts of first instance--namely, at Alexandria, -Cairo, and Ismailia (formerly at Zagazig), and one International Court -of Appeal at Alexandria. The tribunals of first instance are each -composed of three natives and four foreigners, the Court of Appeal is -composed of four natives and seven foreigners. - -[Footnote 784: See Holland, "The European Concert in the Eastern -Question," pp. 101-102; Scott, "The Law Affecting Foreigners in Egypt as -the Result of the Capitulations" (1907); Goudy in _The Law Quarterly -Review_, XXIII. (1907), pp. 409-413.] - -[Sidenote: Exceptional Character of Consuls in non-Christian States.] - -§ 442. There is no doubt that the present position of consuls in -non-Christian States is in every point an exceptional one, which does -not agree with the principles of International Law otherwise universally -recognised. But the position is and must remain a necessity as long as -the civilisation of non-Christian States has not developed their ideas -of justice in accordance with Christian ideas, so as to preserve the -life, property, and honour of foreigners before native Courts. The case -of Japan is an example of the readiness of the Powers to consent to the -withdrawal of consular jurisdiction in non-Christian States as soon as -they have reached a certain level of civilisation. - - - - -CHAPTER IV - -MISCELLANEOUS AGENCIES - - -I - -ARMED FORCES ON FOREIGN TERRITORY - - Hall, §§ 54, 56, 102--Lawrence, § 107--Halleck, I. pp. - 477-479--Phillimore, I. § 341--Taylor, § 131--Twiss, I. § - 165--Wheaton, § 99--Moore, II. § 251--Westlake, I. p. 255--Stoerk - in Holtzendorff, II. pp. 664-666--Rivier, I. pp. 333-335--Calvo, - III. § 1560--Fiore, I. Nos. 528-529. - -[Sidenote: Armed Forces State Organs.] - -§ 443. Armed forces are organs of the State which maintains them, -because such forces are created for the purpose of maintaining the -independence, authority, and safety of the State. And in this respect it -matters not whether armed forces are at home or abroad, for they are -organs of their home State even when on foreign territory, provided only -they are there in the service of their State and not for their own -purposes. For if a body of armed soldiers enters foreign territory -without orders from, or without being otherwise in the service of, its -State, but on its own account, be it for pleasure or for the purpose of -committing acts of violence, it is no longer an organ of its State. - -[Sidenote: Occasions for Armed Forces abroad.] - -§ 444. Besides war, there are several occasions for armed forces to be -on foreign territory in the service of their home State. Thus, a State -may have a right to keep troops in a foreign fortress or to send troops -through foreign territory. Thus, further, a State which has been -victorious in war with another may, after the conclusion of peace, -occupy a part of the territory of its former opponent as a guarantee for -the execution of the Treaty of Peace. After the Franco-German war, for -example, the Germans in 1871 occupied a part of the territory of France -until the final instalments of the indemnity for the war costs of five -milliards of francs were paid. It may also be a case of necessity for -the armed forces of a State to enter foreign territory and commit acts -of violence there, such as the British did in the case of the -_Caroline_.[785] - -[Footnote 785: See above, § 133, and below, § 446.] - -[Sidenote: Position of Armed Forces abroad.] - -§ 445. Whenever armed forces are on foreign territory in the service of -their home State, they are considered exterritorial and remain, -therefore, under the jurisdiction of the latter. A crime committed on -foreign territory by a member of the force cannot be punished by the -local civil or military authorities, but only by the commanding officer -of the forces or by other authorities of its home State.[786] This is, -however, valid only in case the crime is committed either within the -place where the force is stationed, or anywhere else where the criminal -was on duty. If, for example, soldiers belonging to a foreign garrison -of a fortress leave the _rayon_ of the latter, not on duty but for -recreation and pleasure, and then and there commit a crime, the local -authorities are competent to punish them. - -[Footnote 786: This is nowadays the opinion of the vast majority of -writers on International Law. There are, however, still a few dissenting -authorities, such as Bar ("Lehrbuch des internationalen Privat- und -Strafrecht" (1892), p. 351), and Rivier (I. p. 333).] - -[Sidenote: Case of McLeod.] - -§ 446. An excellent example of the position of armed forces abroad is -furnished by the case of McLeod,[787] which occurred in 1841. Alexander -McLeod, who was a member of the British force sent by the Canadian -Government in 1837 into the territory of the United States for the -purpose of capturing the _Caroline_, a boat equipped for crossing into -Canadian territory and taking help to the Canadian insurgents, came in -1841 on business to the State of New York, and was arrested and indicted -for the killing of one Amos Durfee, a citizen of the United States, on -the occasion of the capture of the _Caroline_. The English Ambassador at -Washington demanded the release of McLeod, on the ground that he was at -the time of the alleged crime a member of a British armed force sent -into the territory of the United States by the Canadian Government -acting in a case of necessity. McLeod was not released, but had to take -his trial; he was, however, acquitted on proof of an alibi. It is of -importance to quote a passage in the reply of Mr. Webster, the Secretary -of Foreign Affairs of the United States, to a note of the British -Ambassador concerning this affair. The passage runs thus:--"The -Government of the United States entertains no doubt that, after the -avowal of the transaction as a public transaction, authorised and -undertaken by the British authorities, individuals concerned in it ought -not ... to be holden personally responsible in the ordinary tribunals -for their participation in it." - -[Footnote 787: See Wharton, I. § 21, and Moore, II. § 179.] - -[Sidenote: The Casa Blanca Incident.] - -§ 446_a_. Another interesting example is the Casa Blanca incident. On -September 25, 1908, six soldiers--three of them Germans--belonging to -the French Foreign Legion which formed part of the French troops at -Morocco, deserted at Casa Blanca and asked for and obtained the -protection of the local German consul, who intended to take them on -board a German vessel lying in the harbour of Casa Blanca. On their way -to the ship, however, they were forcibly taken by the French out of the -custody of the secretary of the German Consulate and a native soldier in -the service of the consulate who were conducting them. Considering all -Germans in Morocco without exception exterritorial and under the -exclusive jurisdiction of her consul, Germany complained of this act of -force and demanded that those of the deserters concerned who were German -subjects should be given up to her by France, acknowledging the fact -that the consul had no right to extend his protection to other than -German subjects. France refused to concede this demand, maintaining that -the individuals concerned had even after their desertion remained under -the exclusive jurisdiction of their corps, which formed part of a French -force occupying foreign territory. As the parties could not settle the -conflict diplomatically, they agreed, on November 24, 1908, to bring it -before the Hague Court of Arbitration, which gave its award[788] on May -22, 1909, on the whole in favour of France. The Court considered: that -there was a conflict of jurisdiction with regard to the German deserters -because they were as German subjects under the exclusive jurisdiction of -the German Consulate, but as deserters from the French Foreign Legion -under the exclusive jurisdiction of the French Army of Occupation; that -under the circumstances of the case the jurisdiction of the Army of -Occupation should have the preference; that nevertheless the German -consul was not to be blamed for his action on account of the fact that -in a country granting exterritorial jurisdiction to foreigners the -question of the respective competency of the consular jurisdiction and -of the jurisdiction of an Army of Occupation was very complicated and -had never been settled in an express, distinct, and universally -recognised manner; that, since the German deserters were found at the -port under the actual protection of the German Consulate and this -protection was not manifestly illegal, the actual situation should, as -far as possible, have been respected by the French military authority; -that therefore the French military authorities ought to have confined -themselves to preventing the embarkation and escape of the deserters, -and, before proceeding to their arrest and imprisonment, to have offered -to leave them in sequestration of the German Consulate until the -question of the competent jurisdiction had been decided. The Court did -not, however, decree the restitution on the part of France of the three -German deserters to Germany.[789] - -[Footnote 788: See Martens, N.R.G. 3rd Ser. II. (1910), p. 19. An -English translation of the Award is printed in A.J. III. (1909), p. -755.] - -[Footnote 789: The ambiguity of the award has justly been severely -criticised. If, as the Court correctly asserts, the jurisdiction of an -Army of Occupation must prevail over the jurisdiction of a consul over -his nationals in a country granting exterritorial jurisdiction, a -decision of the conflict on mere legal grounds would have to be entirely -in favour of France, for it is difficult to see how a wrongfully -acquired and illegally asserted protection can create any obligation on -the part of those who are exclusively competent to exercise -jurisdiction. But it is a well-known fact that Courts of Arbitration -frequently endeavour to give an award which satisfies both parties and -the ambiguity of the award in the Casa Blanca incident is manifestly due -to this fact. The award is not of such a kind as one would expect from a -Court of Justice, although it may be an excellent specimen of an -arbitral decision. See A.J. III. (1909), pp. 698-701.] - - -II - -MEN-OF-WAR IN FOREIGN WATERS - - Hall, §§ 54-55--Halleck, I. pp. 215-230--Lawrence, §§ - 107-109--Phillimore, II. §§ 344-350--Westlake, pp. - 256-259--Taylor, § 261--Moore, II. §§ 252-256--Twiss, I. § - 165--Wheaton, § 100--Bluntschli, § 321--Stoerk in Holtzendorff, - II. pp. 434 and 446--Perels, §§ 11, 14, 15--Heilborn, "System," - pp. 248-279--Rivier, I. pp. 333-335--Bonfils, Nos. - 614-623--Mérignhac, II. pp. 554-564--Calvo, III. §§ - 1550-1559--Fiore, I. Nos. 547-550--Testa, p. 86--Jordan, R.I. 2nd - Ser. X. (1908), p. 343. - -[Sidenote: Men-of-war State Organs.] - -§ 447. Men-of-war are State organs just as armed forces are, a -man-of-war being in fact a part of the armed forces of a State. And -respecting their character as State organs, it matters nought whether -men-of-war are at home or in foreign territorial waters or on the High -Seas. But it must be emphasised that men-of-war are State organs only as -long as they are manned and under the command of a responsible officer, -and, further, as long as they are in the service of a State. A -shipwrecked man-of-war abandoned by her crew is no longer a State organ, -nor does a man-of-war in revolt against her State and sailing for her -own purposes retain her character as an organ of a State. On the other -hand, public vessels in the service of the police and the Custom House -of a State; further, private vessels chartered by a State for the -transport of troops and war materials; and, lastly, vessels carrying a -head of a State and his suite exclusively, are also considered State -organs, and are, consequently, in every point treated as though they -were men-of-war. - -[Sidenote: Proof of Character as Men-of-war.] - -§ 448. The character of a man-of-war or of any other vessel treated as a -man-of-war is, in the first instance, proved by their outward -appearance, such vessels flying the war flag and the pennant of their -State.[790] If, nevertheless, the character of the vessel seems -doubtful, her commission, duly signed by the authorities of the State -which she appears to represent, supplies a complete proof of her -character as a man-of-war. And it is by no means necessary to prove that -the vessel is really the property of the State, the commission being -sufficient evidence of her character. Vessels chartered by a State for -the transport of troops or for the purpose of carrying its head are -indeed not the property of such State, although they bear, by virtue of -their commission, the same character as men-of-war.[791] - -[Footnote 790: Attention ought to be drawn here to Convention VII. -(concerning the conversion of merchant-ships into war-ships) of the -second Hague Peace Conference of 1907. Although this convention concerns -the time of war only, it is indirectly of importance for the time of -peace. Its stipulations are the following:--No merchant-ship converted -into a war-ship can have the rights and duties appertaining to that -status unless it is placed under the direct authority, immediate -control, and responsibility of the Power whose flag it flies (art. 1). -Merchant-ships converted into war-ships must bear the external marks -which distinguish the war-ships of their nationality (art. 2). The -commander must be in the service of the State and duly commissioned by -the proper authorities. His name must figure on the list of the officers -of the military fleet (art. 3). The crew must be subject to the rules of -military discipline (art. 4). Every merchant-ship converted into a -war-ship is bound to observe, in its operations, the laws and customs of -war (art. 5). A belligerent who converts a merchant-ship into a war-ship -must, as soon as possible, announce such conversion in the list of the -ships of its military fleet (art. 6).] - -[Footnote 791: Privateers used to enjoy the same character and -exemptions as men-of-war.] - -[Sidenote: Occasions for Men-of-war abroad.] - -§ 449. Whereas armed forces in time of peace have no occasion to be -abroad, cases of a special right from a convention and cases of -necessity excepted, men-of-war of all maritime States possessing a navy -are constantly crossing the High Seas in all parts of the world for all -kinds of purposes. Occasions for men-of-war to sail through foreign -territorial waters and to enter foreign ports necessarily arise -therefrom. And a special convention between the flag-State and the -littoral State is not necessary to enable a man-of-war to enter and sail -through foreign territorial waters and to enter a foreign port. All -territorial waters and ports of the civilised States are, as a rule, -quite as much open to men-of-war as to merchantmen of all nations, -provided they are not excluded by special international stipulations or -special Municipal Laws of the littoral States. On the other hand, it -must be emphasised that, provided special international stipulations or -special treaties between the flag-State and the littoral State do not -prescribe the contrary in regard to one port or another and in regard to -certain territorial waters, a State is in strict law always competent to -exclude men-of-war from all or certain of its ports, and from those -territorial waters which do not serve as highways for international -traffic.[792] And a State is, further, always competent to impose what -conditions it thinks necessary upon men-of-war which it allows to enter -its ports, provided these conditions do not deny to men-of-war their -universally recognised privileges. - -[Footnote 792: The matter is controversial. See above, § 188, and -Westlake, I. p. 192, in contradistinction to Hall, § 42.] - -[Sidenote: Position of Men-of-war in foreign waters.] - -§ 450. The position of men-of-war in foreign waters is characterised by -the fact that they are called "floating" portions of the flag-State. For -at the present time a customary rule of International Law is universally -recognised that the owner State of the waters into which foreign -men-of-war enter must treat them in every point as though they were -floating portions of their flag-State.[793] Consequently, a man-of-war, -with all persons and goods on board, remains under the jurisdiction of -her flag-State even during her stay in foreign waters. No official of -the littoral State is allowed to board the vessel without special -permission of the commander. Crimes committed on board by persons in the -service of the vessel are under the exclusive jurisdiction of the -commander and the other home authorities. Individuals who are subjects -of the littoral State and are only temporarily on board may, although -they need not, be taken to the home country of the vessel, to be there -punished if they commit a crime on board. Even individuals who do not -belong to the crew, and who after having committed a crime on the -territory of the littoral State have taken refuge on board, cannot be -forcibly taken off the vessel; if the commander refuses their surrender, -it can be obtained only by means of diplomacy from the home State. - -[Footnote 793: This rule became universally recognised during the -nineteenth century only. On the change of doctrines formerly held in -this country and the United States of America, see Hall, § 54, and -Lawrence, § 107. English and American Courts now recognise the -exterritoriality of foreign public vessels. Thus, in the case of the -_Exchange_ (7 Cranch, 116), the Supreme Court of the United States -recognised the fact that the latter had no jurisdiction over this French -man-of-war. In the case of the _Constitution_, an American man-of-war, -the High Court of Admiralty in 1879 held that foreign public ships -cannot be sued in English Courts for salvage (L.R. 4 P.D. 39). And in -the case of the _Parlement Belge_ (L.R. 5 P.D. 197) the Court of Appeal, -affirmed by the House of Lords in 1878, held that foreign public vessels -cannot be sued in English Courts for damages for collision. Again the -same was held in 1906 in the case of the _Jassy_, a Roumanian ship, 10 -Aspinall, Mar. Cas. p. 278. See also the _Charkieh_ (1873), L.R. 4 Adm. -and Eccl. 59.] - -On the other hand, men-of-war cannot do what they like in foreign -waters. They are expected voluntarily to comply with the laws of the -littoral States with regard to order in the ports, the places for -casting anchor, sanitation and quarantine, customs, and the like. A -man-of-war which refuses to do so can be expelled, and, if on such or -other occasions she commits acts of violence against the officials of -the littoral State or against other vessels, steps may be taken against -her to prevent further acts of violence. But it must be emphasised that -even by committing acts of violence a man-of-war does not fall under the -jurisdiction of the littoral State. Only such measures are allowed -against her as are necessary to prevent her from further acts of -violence.[794] - -[Footnote 794: Attention ought to be drawn to the "_Règlement sur le -régime légal des navires et de leurs équipages dans les ports -étrangers_," adopted by the Institute of International Law, in 1898, at -its meeting at the Hague of which articles 8-24 deal with men-of-war in -foreign waters; see Annuaire, XVII. (1898), pp. 275-280.] - -[Sidenote: Position of Crew when on Land abroad.] - -§ 451. Of some importance is the unsettled question respecting the -position of the commander and the crew of a man-of-war in foreign ports -when they are on land. - -The majority of publicists distinguish between a stay on land in the -service of the man-of-war and a stay for other purposes.[795] The -commander and members of the crew on land officially in the service of -their vessel, to buy provisions or to make other arrangements respecting -the vessel, remain under the exclusive jurisdiction of their home State, -even for crimes they commit on the spot. Although they may, if the case -makes it necessary, be arrested to prevent further violence, they must -at once be surrendered to the vessel. On the other hand, if they are on -land not officially, but for purposes of pleasure and recreation, they -are under the territorial supremacy of the littoral State like any other -foreigners, and they may be punished for crimes committed ashore. - -[Footnote 795: So also Moore, II. § 256.] - -There are, however, a number of publicists[796] who do not make this -distinction, and who maintain that commanders or members of the crew -whilst ashore are in every case under the local jurisdiction. - -[Footnote 796: See, for instance, Hall, § 55; Phillimore, I. § 346; -Testa, p. 109. See also art. 18 of the "_Règlement sur les régime légal -des navires et de leurs équipages dans les ports étrangers_," adopted by -the Institute of International Law, in 1898, at its meeting at the Hague -(Annuaire, XVII. (1898), p. 278).] - - -III - -AGENTS WITHOUT DIPLOMATIC OR CONSULAR CHARACTER - - Hall, §§ 103-104*--Moore, IV. § 623--Bluntschli, §§ - 241-243--Ullmann, §§ 66-67--Heffter, § 222--Rivier, I. § - 44--Calvo, III. §§ 1337-1339--Fiore, II. Nos. 1188-1191--Martens, - II. § 5--Adler, "Die Spionage" (1906), pp. 63-92. - -[Sidenote: Agents lacking diplomatic or consular character.] - -§ 452. Besides diplomatic envoys and consuls, States may and do send -various kinds of agents abroad--namely, public political agents, secret -political agents, spies, commissaries, bearers of despatches. Their -position is not the same, but varies according to the class they belong -to, and they must therefore be severally treated. - -[Sidenote: Public Political Agents.] - -§ 453. Public political agents are agents sent by one Power to another -for political negotiations of different kinds. They may be sent for a -permanency or for a limited time only. As they are not invested with -diplomatic character, they do not receive a Letter of Credence, but a -letter of recommendation or commission only. They may be sent by one -full-Sovereign State to another, but also by and to insurgents -recognised as a belligerent Power, and by and to States under -suzerainty. Public (or secret) political agents without diplomatic -character are, in fact, the only means for personal political -negotiations with such insurgents and States under suzerainty. - -As regards the position and privileges of such agents, it is obvious -that they enjoy neither the position nor the privileges of diplomatic -envoys.[797] But, on the other hand, they have a public character, being -admitted as public political agents of a foreign State. They must, -therefore, certainly be granted a special protection, but no distinct -rules concerning special privileges to be granted to such agents seem to -have grown up in practice. Inviolability of their persons and official -papers ought to be granted to them.[798] - -[Footnote 797: Heffter, § 222, is, as far as I know, the only publicist -who maintains that agents not invested with diplomatic character must -nevertheless be granted the privileges of diplomatic envoys.] - -[Footnote 798: Ullmann, § 66, and Rivier, I. § 40, maintain that they -_must_ be granted the privilege of inviolability to the same extent as -diplomatic envoys.] - -[Sidenote: Secret Political Agents.] - -§ 454. Secret political agents may be sent for the same purposes as -public political agents. But two kinds of secret political agents must -be distinguished. An agent may be secretly sent to another Power with a -letter of recommendation and admitted by that Power. Such agent is a -secret one in so far as third Powers do not know, or are not supposed to -know, of his existence. As he is, although secretly, admitted by the -receiving State, his position is essentially the same as that of a -public political agent. On the other hand, an agent may be secretly sent -abroad for political purposes without a letter of recommendation, and -therefore without being formally admitted by the Government of the State -in which he is fulfilling his task. Such agent has no recognised -position whatever according to International Law. He is not an agent of -a State for its relations with other States, and he is therefore in the -same position as any other foreign individual living within the -boundaries of a State. He may be expelled at any moment if he becomes -troublesome, and he may be criminally punished if he commits a political -or ordinary crime. Such secret agents are often abroad for the purpose -of watching the movements of political refugees or partisans, or of -Socialists, Anarchists, Nihilists, and the like. As long as such agents -do not turn into so-called _agents provocateurs_, the local authorities -will not interfere. - -[Sidenote: Spies.] - -§ 455. Spies are secret agents of a State sent abroad[799] for the -purpose of obtaining clandestinely information in regard to military or -political secrets. Although all States constantly or occasionally send -spies abroad, and although it is neither morally nor politically and -legally considered wrong to send spies, such agents have, of course, no -recognised position whatever according to International Law, since they -are not agents of States for their international relations. Every State -punishes them severely when they are caught committing an act which is a -crime by the law of the land, or expels them if they cannot be punished. -And a spy cannot legally excuse himself by pleading that he only -executed the orders of his Government. The latter, on the other hand, -will never interfere, since it cannot officially confess to having -commissioned a spy. - -[Footnote 799: Concerning spies in time of war, see below, vol. II. §§ -159 and 210, and Adler, "Die Spionage" (1906), pp. 7-62.] - -[Sidenote: Commissaries.] - -§ 456. Commissaries are agents sent with a letter of recommendation or -commission by one State to another for negotiations, not of a political -but of a technical or administrative character only. Such commissaries -are, for instance, sent and received for the purpose of arrangements -between the two States as regards railways, post, telegraphs, -navigation, delineation of boundary lines, and so on. A distinct -practice of guaranteeing certain privileges to such commissaries has not -grown up, but inviolability of their persons and official papers ought -to be granted to them, as they are officially sent and received for -official purposes. Thus Germany, in 1887, in the case of the French -officer of police Schnaebélé, who was invited by local German -functionaries to cross the German frontier for official purposes and -then arrested, recognised the rule that a safe-conduct is tacitly -granted to foreign officials when they enter officially the territory of -a State with the consent of the local authorities, although Schnaebélé -was not a commissary sent by his Government to the German Government. - -[Sidenote: Bearers of Despatches.] - -§ 457. Individuals commissioned to carry official despatches from a -State to its head or to diplomatic envoys abroad are agents of such -State. Despatch-bearers who belong to the retinue of diplomatic envoys -as their couriers must enjoy, as stated above (§ 405), exemption from -civil and criminal jurisdiction and a special protection in the State to -which the envoy is accredited, and a right of innocent passage through -third States. But bearers of official despatches who are not in the -retinue of the diplomatic envoys employing them must nevertheless be -granted inviolability for their person and official papers, provided -they possess special passports stating their official character as -despatch-bearers. And the same is valid respecting bearers of despatches -between the head of a State who is temporarily abroad and his Government -at home. - - -IV - -INTERNATIONAL COMMISSIONS - - Rivier, I. pp. 564-566--Ullmann, § 68--Gareis, §§ 51-52--Liszt, § - 16--Moore, IV. § 623. - -[Sidenote: Permanent in Contradistinction to Temporary Commissions.] - -§ 458. A distinction must be made between temporary and permanent -international commissions. The former consist of commissaries delegated -by two or more States to arrange all kinds of non-political matters, -such as railways, post, telegraphs, navigation, boundary lines, and the -like. Such temporary commissions dissolve as soon as their purpose is -realised.[800] Besides temporary commissions, there are, however, -permanent commissions in existence. They have been instituted by the -Powers[801] in the interest of free navigation on two international -rivers and the Suez Canal; further, in the interest of international -sanitation; thirdly, in the interest of the foreign creditors of several -States unable to pay the interest on their stocks; and, lastly, -concerning bounties on sugar. - -[Footnote 800: The position of their members has been discussed above, § -456. Quite novel institutions are the International Commissions of -Inquiry recommended by the Hague Peace Conferences of 1890 and 1907. -Articles 9 to 36 of the Hague Convention for the peaceful adjustment of -international differences provide that, in international differences -involving neither honour nor vital interests, and arising from a -difference of opinion on matters of fact, the parties should institute -an International Commission of Inquiry; this commission to present a -report to the parties, which shall be limited to a statement of the -facts. See below, vol. II. § 5.] - -[Footnote 801: Only such permanent commissions are mentioned in the text -as have been instituted by the Powers in conference. There are, however, -many permanent commissions in existence which have been instituted by -neighbouring Powers for local purposes, as for example:--(1) The -American-Canadian International Fisheries Commission, instituted -according to article 1 of the Treaty of Washington of April 11, 1908; -see Treaty Series, 1908, No. 17. (2) The American-Canadian International -Joint Commission concerning boundary waters, instituted by articles 7-12 -of the Treaty of Washington of January 11, 1909; see Treaty Series, -1910, No. 23. (3) The permanent Mixed Fisheries Commission between the -United States, Canada, and Newfoundland, instituted in consequence of -the award of the Hague Court of Arbitration in the North Atlantic -Fisheries Case.] - -As regards the privileges to be granted to the members of either -temporary or permanent international commissions, no distinct practice -has grown up. If the treaty according to which a commission concerned -does not stipulate anything as regards such privileges, none need be -granted, but the persons of the commissioners must be specially -protected. However that may be, there is no doubt that members of -international commissions cannot, unless this be specially stipulated, -claim the privileges of diplomatic envoys. Thus, when in 1796 Messrs. -Gore and Pinkney,[802] the American Commissioners in London under -article 7 of the Jay Treaty, claimed these privileges, Great Britain -refused to concede them. - -[Footnote 802: See Moore, IV. § 623, p. 428.] - -[Sidenote: Commissions in the interest of Navigation.] - -§ 459. Four international commissions have been instituted in the -interest of navigation--namely, two for the river Danube, one for the -Congo river, and one for the Suez Canal. - -1. With regard to navigation on the Danube, the European Danube -Commission was instituted by article 16 of the Peace Treaty of Paris in -1856. This commission, whose members are appointed by the signatory -Powers of the Treaty of Paris, was reconstituted by the Berlin -Conference in 1878 and again by the Conference of London in 1883. The -commission is totally independent of the territorial Governments, its -rights are clearly defined, and its members, offices, and archives enjoy -the privilege of inviolability. The competence of the European Danube -Commission comprehends the Danube from Ibraila downwards to its -mouth.[803] - -[Footnote 803: Details in Twiss, I. §§ 150-152.] - -2. The above-mentioned London Conference of 1883 has sanctioned -regulations[804] in regard to the navigation and river-police of the -Danube from the Iron Gates down to Ibraila, and has, by article 96 of -these regulations, instituted the Mixed Commission of the Danube to -enforce the observance of the regulations. The members of this -Commission are delegates from Austria-Hungary, Bulgaria, Roumania, -Servia, and the European Danube Commission--one member from each.[805] - -[Footnote 804: Martens, N.R.G. 2nd Ser. IX. p. 394.] - -[Footnote 805: Details in Twiss, § 152.] - -3. The Powers represented at the Berlin Congo Conference of 1884 have -sanctioned certain regulations in regard to navigation on the Congo -river, and have, by articles 17-21 of the General Act of the Conference, -instituted an International Commission of the Congo to enforce the -observance of these regulations. This Commission, in which every -signatory Power may be represented by one member, is totally independent -of the territorial Governments, and its members, offices, and archives -enjoy the privilege of inviolability.[806] - -[Footnote 806: Details in Calvo, I. § 334. According to Liszt, § 16, II. -3, this Commission has never been appointed.] - -4. By article 8 of the Treaty of Constantinople of 1888 in regard to the -neutralisation of the Suez Canal, a Commission was instituted for the -supervision of the execution of that treaty. The Commission consists of -all the consuls of the signatory Powers in Egypt.[807] - -[Footnote 807: See above, § 183.] - -[Sidenote: Commissions in the interest of Sanitation.] - -§ 460. Three international commissions in the interest of sanitation are -in existence. For the purpose of supervising the sanitary arrangements -in connection with the navigation on the lower part of the Danube, the -International Council of Sanitation was instituted at Bucharest in -1881.[808] The _Conseil supérieur de santé_ at Constantinople has the -task of supervising the arrangements concerning cholera and plague. The -_Conseil sanitaire maritime et quarantenaire_ at Alexandria has similar -tasks and is subject to the control of the _Conseil supérieur de santé_ -at Constantinople.[809] As regards the International Health Office at -Paris, see below, § 590, No. 6. - -[Footnote 808: See article 6 of the _Acte additionnel à l'Acte public du -2 novembre 1865 pour la navigation des embouchures du Danube_, signed on -May 28, 1881; Martens, N.R.G. 2nd Ser. VIII. p. 207.] - -[Footnote 809: Details in Liszt, § 16, III., where likewise information -is to be found as regards the _Conseil sanitaire_ at Tangiers, which -consists of all the foreign envoys in Morocco.] - -[Sidenote: Commissions in the Interest of Foreign Creditors.] - -§ 461. Three international commissions in the interest of foreign -creditors are in existence--namely, in Turkey since 1878, in Egypt since -1880, and in Greece since 1897.[810] - -[Footnote 810: See Kaufmann, "Das internationale Recht der aegyptischen -Staatsschuld" (1891), and Murat, "Le contrôle international sur les -finances de l'Egypte, de la Grèce et de la Turquie" (1899).] - -[Sidenote: Permanent Commission concerning Sugar.] - -§ 462. According to article 7 of the Brussels Convention concerning -bounties on sugar, a permanent commission was instituted in 1902 at -Brussels.[811] - -[Footnote 811: See below, § 585, No. 3.] - - -V - -INTERNATIONAL OFFICES - - Rivier, I. pp. 564-566--Nys, II. pp. 264-270--Ullmann, § - 58--Liszt, § 17--Gareis, § 52--Descamps, "Les offices - internationaux et leur avenir" (1894). - -[Sidenote: Character of International Offices.] - -§ 463. During the second half of the nineteenth century a great number -of general treaties were entered into by a greater or lesser number of -States for the purpose of settling in common certain non-political -matters. These general treaties create so-called unions among the -parties, and the business of these unions is in most cases transacted by -international offices created specially for that purpose. The -functionaries of these offices, however, ordinarily enjoy no privilege -whatever. The number of these offices is constantly increasing. Only the -more important ones are here enumerated, with the exclusion of the -International Bureau of Arbitration,[812] which, although an -international office, has no relation to those here discussed. - -[Footnote 812: See below, § 474.] - -[Sidenote: International Telegraph Offices.] - -§ 464. In 1868 the international telegraph office of the International -Telegraph Union was created at Berne. It is administered by four -functionaries under the supervision of the Swiss Bundesrath. It edits -the _Journal Télégraphique_ in French.[813] Connected with this office -is, since 1906, the International Office for Radiotelegraphy.[814] - -[Footnote 813: See below, § 582, No. 2.] - -[Footnote 814: See below, § 582, No. 4.] - -[Sidenote: International Post Office.] - -§ 465. The pendant of the international telegraph office is the -international post office of the Universal Postal Union created at Berne -in 1874. It is administered by seven functionaries under the supervision -of the Swiss Bundesrath, and edits a monthly, _L'Union Postale_, in -French, German, and English.[815] - -[Footnote 815: See below, § 582, No. 1.] - -[Sidenote: International Office of Weights and Measures.] - -§ 466. The States which have introduced the metric system of weights and -measures created in 1875 the international office of weights and -measures in Paris. Of functionaries there are a director and several -assistants. Their task is the custody of the international prototypes of -the metre and kilogramme and the comparison of the national prototypes -with the international.[816] - -[Footnote 816: See below, § 588, No. 1.] - -[Sidenote: International Office for the Protection of Works of -Literature and Art and of Industrial Property.] - -§ 467. In 1883 an International Union for the Protection of Industrial -Property, and in 1886 an International Union for the Protection of Works -of Literature and Art, were created, with an international office in -Berne. There are a secretary-general and three assistants, who edit a -monthly, _Le Droit d'Auteur_, in French.[817] - -[Footnote 817: See below, §§ 584 and 585, No. 2.] - -[Sidenote: The Pan-American Union.] - -§ 467_a_. The first Pan-American Conference of 1889 created "The -American International Bureau," which, since the fourth Conference of -1910, bears the name "The Pan-American Union." There are a director, an -assistant director, and several secretaries. This office[818] publishes -a "Monthly Bulletin." - -[Footnote 818: See below, § 595.] - -[Sidenote: Maritime Office at Zanzibar, and Bureau Spécial at Brussels.] - -§ 468. In accordance with the General Act of the Anti-Slavery Conference -of Brussels, 1890, the International Maritime Office at Zanzibar and the -"Bureau Spécial" at Brussels were established; the latter is attached to -the Belgian Foreign Office at Brussels.[819] - -[Footnote 819: See below, § 592, No. 1.] - -[Sidenote: International Office of Customs Tariffs.] - -§ 469. The International Union for the Publication of Customs Tariffs, -concluded in 1890, has created an international office[820] at Brussels. -There are a director, a secretary, and ten translators. The office edits -the _Bulletin des Douanes_ in French, German, English, Italian, and -Spanish. - -[Footnote 820: See below, § 585, No. 1.] - -[Sidenote: Central Office of International Transports.] - -§ 470. Nine States--namely, Austria-Hungary, Belgium, France, Germany, -Holland, Italy, Luxemburg, Russia, Switzerland--entered in 1890 into an -international convention in regard to transports and freights on -railways and have created the "Office Central des Transports[821] -Internationaux" at Berne. - -[Footnote 821: See below, § 583, No. 1.] - -[Sidenote: Permanent Office of the Sugar Convention.] - -§ 471. The States which concluded on March 5, 1902, at Brussels the -Convention concerning bounties on sugar[822] have, in compliance with -article 7 of this Convention, instituted a permanent office at Brussels. -The task of this office, which is attached to the permanent -commission,[823] also instituted by article 7, is to collect, -translate, and publish information of all kinds respecting legislation -on and statistics of sugar. - -[Footnote 822: See below, § 585, No. 3.] - -[Footnote 823: See above, § 462.] - -[Sidenote: Agricultural Institute.] - -§ 471_a_. In 1905 the Agricultural Institute[824] was established at -Rome. It consists of a General Assembly and a Permanent Committee with a -general secretary. - -[Footnote 824: See below, § 586, No. 1.] - -[Sidenote: International Health Office.] - -§ 471_b_. In 1907 the International Health Office[825] was established -at Paris. It consists of a director, a general secretary, and a number -of clerks. It publishes at least once a month a bulletin in French. - -[Footnote 825: See below, § 590, No. 6.] - - -VI - -THE INTERNATIONAL COURT OF ARBITRATION - - Lawrence, § 221--Bonfils, No. 970[8]--Despagnet, Nos. 736-740. - -[Sidenote: Organisation of Court in general.] - -§ 472. In compliance with articles 20 to 29 of the Hague Convention for -the peaceful adjustment of international differences, the signatory -Powers in 1900 organised the International Court of Arbitration at the -Hague. This organisation comprises three distinct bodies--namely, the -Permanent Administrative Council of the Court, the International Bureau -of the Court, and the Court of Arbitration itself. But a fourth body -must also be distinguished--namely, the tribunal to be constituted for -the decision of every case. Articles 20 to 29 are now replaced by -articles 41 to 50 of the Convention for the peaceful adjustment of -international differences produced by the second Hague Peace Conference -of 1907. - -[Sidenote: The Permanent Council.] - -§ 473. The Permanent Council (article 49) consists of the diplomatic -envoys of the contracting Powers accredited to Holland and the Dutch -Secretary for Foreign Affairs, who acts as president of the Council. The -task of the Council is the control of the International Bureau of the -Court, the appointment, suspension, and dismissal of the _employés_ of -the bureau, the fixing of the payments and salaries, the control of the -general expenditure, and the decision of all questions of administration -with regard to the business of the Court. The Council has, further, the -task of furnishing the signatory Powers with a report of the proceedings -of the Court, the working of the administration, and the expenses. At -meetings duly summoned, the presence of nine members is sufficient to -give the Council power to deliberate, and its decisions are taken by a -majority of votes. - -[Sidenote: The International Bureau.] - -§ 474. The International Bureau (article 43) serves as the Registry for -the Court. It is the intermediary for communications relating to the -meetings of the Court. It has the custody of the archives and the -conduct of all the administrative business of the Court. The contracting -Powers have to furnish the Bureau with a certified copy of every -stipulation concerning arbitration arrived at between them, and of any -award concerning them rendered by a special tribunal. They likewise have -to communicate to the Bureau the laws, regulations, and documents, if -any, showing the execution of the awards given by the Court. The Bureau -is (article 47) authorised to place its premises and its staff at the -disposal of the contracting Powers for the work of any special[826] -tribunal of arbitration not constituted within the International Court -of Arbitration. The expense (article 50) of the Bureau is borne by the -signatory Powers in the proportion established for the International -Office of the International Postal Union. - -[Footnote 826: See below, vol. II. § 20.] - -[Sidenote: The Court of Arbitration.] - -§ 475. The Court of Arbitration (article 44) consists of a large number -of individuals "of recognised competence in questions of International -Law, enjoying the highest moral reputation," selected and appointed by -the contracting Powers. No more than four members may be appointed by -one Power, but two or more Powers may unite in the appointment of one or -more members, and the same individual may be appointed by different -Powers. Every member is appointed for a term of six years, but his -appointment may be renewed. The place of a resigned or deceased member -is to be refilled by the respective Powers, and in this case the -appointment is made for a fresh period of six years. The names of the -members of the Court thus appointed are enrolled upon a general list, -which is to be kept up to date and communicated to all the contracting -Powers. The Court thus constituted has jurisdiction over all cases of -arbitration, unless there shall be an agreement between the parties for -a special tribunal of arbitrators not selected from the list of the -members of the Court (article 42). - -[Sidenote: The Deciding Tribunal.] - -§ 476. The Court of Arbitration does not as a body decide the cases -brought before it, but a tribunal is created for every special case by -selection of a number of arbitrators from the list of the members of the -Court. This tribunal (article 45) may be created directly by agreement -of the parties. If this is not done, the tribunal is formed in the -following manner:--Each party selects two arbitrators from the list, of -whom one only can be its national or chosen from the persons appointed -by it as members of the Permanent Court, and the four arbitrators so -appointed choose a fifth as umpire and president. If the votes of the -four are equal, the parties entrust to a third Power the choice of the -umpire. If the parties cannot agree in their choice of such third Power, -each party nominates a different Power, and the umpire is chosen by the -united action of the Powers thus nominated. If within two months' time -these two Powers cannot come to an agreement, each of them presents two -candidates from the list of members of the Permanent Court, exclusive -of the members selected by the parties and not being nationals of either -of them. Which of the candidates thus selected shall be the umpire is -determined by lot. - -After this is done, the tribunal is constituted, and the parties -communicate to the International Bureau of the Court the names of the -members of the tribunal, which meets at the time fixed by the parties; -the members of the tribunal must be granted the privileges of diplomatic -envoys when discharging their duties outside their own country (article -46). The tribunal sits at the Hague (article 43), and, except in case of -_force majeure_, the place of session can only be altered by the -tribunal with the assent of the parties, but the parties can from the -beginning designate another place than the Hague as the venue of the -tribunal (article 60). The expenses of the tribunal are paid by the -parties in equal shares, and each party pays its own expenses (article -85).[827] - -[Footnote 827: The procedure to be followed by and before the Tribunal -is described below, vol. II. § 27.] - -The following nine awards have hitherto been given by the Permanent -Court of Arbitration:-- - - (1) On October 14, 1902, in the case of the United States of - America _v._ Mexico concerning the _Fonds pieux des Californias_; - see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 193. - - (2) On February 22, 1904, in the case of Germany, Great Britain, - and Italy _v._ Venezuela concerning certain claims of their - subjects; see Martens, N.R.G. 3rd Ser. I. (1909), p. 57. - - (3) On May 22, 1905, in the case of Germany, France, and Great - Britain _v._ Japan concerning the interpretation of article 18 of - the treaty of April 4, 1896, and of other treaties; see Martens, - N.R.G. 2nd Ser. XXXV. (1908), p. 376. - - (4) On August 8, 1905, in the case of France _v._ Great Britain - concerning the Muscat Dhows; see Martens, N.R.G. 2nd Ser. XXXV. - (1908), p. 356. - - (5) On May 22, 1909, in the case of France _v._ Germany concerning - the Casa Blanca incident; see Martens, N.R.G. 3rd Ser. II. (1910), - p. 19. - - (6) On October 23, 1909, in the case of Norway _v._ Sweden - concerning the question of their maritime frontier; see Martens, - N.R.G. 3rd Ser. III. (1910), p. 85. - - (7) On September 7, 1910, in the case of the United States of - America _v._ Great Britain concerning the North Atlantic - Fisheries; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 89. - - (8) On October 25, 1910, in the case of the United States of - America _v._ Venezuela concerning the claims of the Orinoco - Steamship Co.; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 79. - - (9) On February 24, 1911, in the case of France _v._ Great Britain - concerning the British-Indian Savarkar; see Martens, N.R.G. 3rd - Ser. IV. (1911), p. 744. - - -VII - -THE INTERNATIONAL PRIZE COURT AND THE PROPOSED INTERNATIONAL COURT OF -JUSTICE - - Lawrence, § 192--Despagnet, No. 683_bis_--Scott, "The Hague Peace - Conferences" (1909), pp. 465-511 and 423-464, and in A.J. V. - (1911), pp. 302-324--Gregory in A.J. II. (1908), pp. 458-475. - -[Sidenote: The International Prize Court.] - -§ 476_a_. The International Prize Court will be established at the Hague -according to Convention XII. of the second Hague Peace Conference of -1907. The following are the more important stipulations of this -Convention concerning the constitution[828] of the Court:--The Court -consists of fifteen judges and fifteen deputy-judges, who are appointed -for a period of six years and who rank equally and have precedence -according to the date of the notification of their appointment, but the -deputy judges rank after the judges (articles 10 to 12). Of the fifteen -judges of which the Court is composed, nine constitute a quorum; a judge -who is absent or prevented from sitting is replaced by his deputy judge -(article 14). The judges enjoy diplomatic privileges and immunities in -the performance of their duties when outside their own country (article -13). Each contracting Power appoints one judge and one deputy judge, and -the judges appointed by Great Britain, Germany, the United States of -America, Austria-Hungary, France, Italy, Japan, and Russia are always -summoned to sit, whereas the judges appointed by the other contracting -Powers sit by rota, as shown in the table annexed to the Convention -(article 15). If a belligerent Power has, according to the rota, no -judge sitting in the Court, it may ask that the judge appointed by it -shall take part in the settlement of all cases arising from the war; -lots shall then be drawn as to which of the judges entitled to sit -according to the rota shall withdraw, and this arrangement does not -affect the judge appointed by the other belligerent (article 16). No -judge can sit who has been a party, in any way whatever, to the sentence -pronounced by the National Courts, or has taken part in the case as -counsel or advocate for one of the parties; no judge or deputy judge -can, during his tenure of office, appear as agent or advocate before the -International Prize Court, nor act for one of the parties in any -capacity whatever (article 17). The belligerent captor is entitled to -appoint a naval officer of high rank to sit as assessor, but with no -voice in the decision; a neutral Power, which is a party to the -proceedings or whose national is a party, has the same right of -appointment; if in applying this last provision more than one Power is -concerned, they must agree among themselves, if necessary by lot, on the -officer to be appointed (article 18). The Court elects its President and -Vice-President by an absolute majority of the votes cast; after two -ballots, the election is made by a bare majority, and, in case the votes -are equal, by lot (article 19). The judges of the International Prize -Court are entitled to travelling allowances in accordance with the -regulations in force in their own country, and in addition thereto -receive, while the Court is sitting or while they are carrying out -duties conferred upon them by the Court, a sum of 100 Netherland florins -per diem; the judges may not receive from their own Governments or from -that of any other Power any remuneration in their capacity of members of -the Court (article 20). The seat of the International Prize Court is at -the Hague, and it cannot, except in the case of _force majeure_, be -transferred elsewhere without the consent of the belligerents (article -21). - -[Footnote 828: Details concerning the constitution of the International -Prize Court and the mode of procedure to be followed by and before it, -will be given below, vol. II. part III. chapter VI.] - -[Sidenote: The proposed International Court of Justice.] - -§ 476_b_. Valuable as is the Permanent Court of Arbitration at the -Hague, it must be pointed out that it is not a real Court of Justice. -For, firstly, it is not itself a deciding tribunal, but only a list of -names out of which the parties in each case elect some members and -thereby constitute the Court. Secondly, experience teaches that a Court -of Arbitration endeavours more to give an award _ex aequo et bono_ which -more or less pleases both parties than to decide the conflict in a -judicial manner by simply applying strict legal rules without any -consideration as to whether or no the decision will please either party. -Thirdly, since in conflicts to be decided by arbitration the arbitrators -each time are selected by the parties, there are in most cases different -individuals acting as arbitrators, so that there is no continuity in the -administration of justice. - -For these reasons it would be of the greatest value to institute side by -side with the Permanent Court of Arbitration a real International Court -of Justice consisting of a number of judges in the technical sense of -the term, who are once for all appointed and will have to act in each -case that the parties choose to bring before the Court. Such a Court -would only take the legal aspects of the case into consideration and -would base its decision on mere legal deliberations. It would secure -continuity in the administration of international justice, because it -would in each case consider itself bound by its former decisions. It -would in time build up a valuable practice by deciding innumerable -controversies which as yet haunt the theory of International Law. The -second Hague Peace Conference of 1907 therefore discussed the question -of creating such a Court, but only produced the draft of a Convention -concerning the subject. It is, however, to be regretted that this draft -Convention speaks of the creation of a judicial "Arbitration" Court, and -thereby obliterates the boundary line between the arbitral and the -strictly judicial decision of international disputes; it would have been -better to speak simply of an International Court of Justice. However -that may be, there is no doubt that the near future will bring the -establishment of such a Court of Justice in contradistinction to the -Permanent Court of Arbitration, for the parties to a conflict frequently -hesitate to have it settled by arbitration, whereas they would be glad -to have it settled by a strictly judicial decision of the legal -questions involved. The same motives which urged the Powers to leave -aside the Permanent Court of Arbitration in Prize Cases and to enter -into a Convention for the establishment of a real International Prize -Court, will in time compel the Powers to establish a real International -Court of Justice.[829] - -[Footnote 829: It should be mentioned that Costa Rica, Guatemala, -Honduras, Nicaragua, and San Salvador in 1907--see Supplement to the -_American Journal of International Law_, II. (1908), p. 231--established -the "Central American Court of Justice" at Cartago, consisting of five -judges, to which they have bound themselves to submit all controversies -arising amongst them, of whatsoever nature, no matter what the origin -may be, in case they cannot be settled by diplomatic negotiation. This -Court is, however, only of local importance, although it is of great -value, being the first Court of its kind.] - - - - -PART IV - -INTERNATIONAL TRANSACTIONS - - - - -CHAPTER I - -ON INTERNATIONAL TRANSACTIONS IN GENERAL - - -I - -NEGOTIATION - - Heffter, §§ 234-239--Geffcken in Holtzendorff, III. pp. - 668-676--Liszt, § 20--Ullmann, § 71--Bonfils, Nos. - 792-795--Pradier-Fodéré, III. Nos. 1354-1362--Rivier, II. § - 45--Calvo, III. §§ 1316-1320, 1670-1673. - -[Sidenote: Conception of Negotiation.] - -§ 477. International negotiation is the term for such intercourse -between two or more States as is initiated and directed for the purpose -of effecting an understanding between them on matters of interest. Since -civilised States form a body interknitted through their interests, such -negotiation is in some shape or other constantly going on. No State of -any importance can abstain from it in practice. There are many other -international transactions,[830] but negotiation is by far the most -important of them. And it must be emphasised that negotiation as a means -of amicably settling conflicts between two or more States is only a -particular kind of negotiation, although it will be specially discussed -in another part of this work.[831] - -[Footnote 830: See below, §§ 486-490.] - -[Footnote 831: See below, vol. II. §§ 4-6.] - -[Sidenote: Parties to Negotiation.] - -§ 478. International negotiations can be conducted by all such States as -have a standing within the Family of Nations. Full-Sovereign States are, -therefore, the regular subjects of international negotiation. But it -would be wrong to maintain that half- and part-Sovereign States can -never be parties to international negotiations. For they can indeed -conduct negotiations on those points concerning which they have a -standing within the Family of Nations. Thus, for instance, while -Bulgaria was a half-Sovereign State, she was nevertheless able to -negotiate on several matters with foreign States independently of -Turkey.[832] But so-called colonial States, as the Dominion of Canada, -can never be parties to international negotiations; any necessary -negotiation for a colonial State must be conducted by the mother-State -to which it internationally belongs.[833] - -[Footnote 832: See above, § 91.] - -[Footnote 833: The demand on the part of many influential Canadian -politicians, expressed after the verdict of the Arbitration Court in the -Alaska Boundary dispute, that Canada should have the power of making -treaties independently of Great Britain, necessarily includes the demand -to become in some respects a Sovereign State.] - -It must be specially mentioned that such negotiation as is conducted -between a State, on the one hand, and, on the other, a party which is -not a State, is not _international_ negotiation, although such party may -reside abroad. Thus, negotiations of a State with the Pope and the Holy -See are not international negotiations, although all the formalities -connected with international negotiations are usually observed in this -case. Thus, too, negotiations on the part of States with a body of -foreign bankers and contractors concerning a loan, the building of a -railway, the working of a mine, and the like, are not international -negotiations. - -[Sidenote: Purpose of Negotiation.] - -§ 479. Negotiations between States may have various purposes. The -purpose may be an exchange of views only on some political question; but -it may also be an arrangement as to the line of action to be taken in -future with regard to a certain point, or a settlement of differences, -or the creation of international institutions, such as the Universal -Postal Union for example, and so on. Of the greatest importance are -those negotiations which aim at an understanding between members of the -Family of Nations respecting the very creation of rules of International -Law by international conventions. Since the Vienna Congress at the -beginning of the nineteenth century negotiations between the Powers for -the purpose of defining, creating, or abolishing rules of International -Law have been frequently and very successfully conducted.[834] - -[Footnote 834: See below, §§ 555-568_b_.] - -[Sidenote: Negotiations by whom conducted.] - -§ 480. International negotiations are conducted by the agents which -represent the negotiating States. The heads of these States may conduct -the negotiations in person, either by letters or by a personal -interview. Serious negotiations have in the past been conducted by heads -of States, and, although this is comparatively seldom done, there is no -reason to believe that personal negotiations between heads of States -will not occur in future.[835] Heads of States may also personally -negotiate with diplomatic or other agents commissioned for that purpose -by other States. Ambassadors, as diplomatic agents of the first class, -must, according to International Law, have even the right to approach in -person the head of the State to which they are accredited for the -purpose of negotiation.[836] The rule is, however, that negotiation -between States concerning more important matters is conducted by their -Secretaries for Foreign Affairs, with the help either of their -diplomatic envoys or of agents without diplomatic character and -so-called commissaries.[837] - -[Footnote 835: See below, § 495.] - -[Footnote 836: See above, § 365.] - -[Footnote 837: Negotiations between armed forces of belligerents are -regularly conducted by soldiers. See below, vol. II. §§ 220-240.] - -[Sidenote: Form of Negotiation.] - -§ 481. The Law of Nations does not prescribe any particular form in -which international negotiations must be conducted. Such negotiations -may, therefore, take place _viva voce_ or through the exchange of -written representations and arguments, or both. The more important -negotiations are regularly conducted through the diplomatic exchange of -written communications, as only in this way can misunderstandings be -avoided, which easily arise during _viva voce_ negotiations. Of the -greatest importance are the negotiations which take place through -congresses and conferences.[838] - -[Footnote 838: See below, § 483.] - -During _viva voce_ negotiations it happens sometimes that a diplomatic -envoy negotiating with the Secretary for Foreign Affairs reads out a -letter received from his home State. In such case it is usual to leave a -copy of the letter at the Foreign Office. If a copy is refused, the -Secretary for Foreign Affairs can on his part refuse to hear the letter -read. Thus in 1825 Canning refused to allow a Russian communication to -be read to him by the Russian Ambassador in London with regard to the -independence of the former Spanish colonies in South America, because -this Ambassador was not authorised to leave a copy of the communication -at the British Foreign Office.[839] - -[Footnote 839: As regards the language used during negotiation, see -above, § 359.] - -[Sidenote: End and Effect of Negotiation.] - -§ 482. Negotiations may and often do come to an end without any effect -whatever on account of the parties failing to agree. On the other hand, -if negotiations lead to an understanding, the effect may be twofold. It -may consist either in a satisfactory exchange of views and intentions, -and the parties are then in no way, at any rate not legally, bound to -abide by such views and intentions, or to act on them in the future; or -in an agreement on a treaty, and then the parties are legally bound by -the stipulations of such treaty. Treaties are of such importance that it -is necessary to discuss them in a special chapter.[840] - -[Footnote 840: See below, §§ 491-554.] - - -II - -CONGRESSES AND CONFERENCES - - Phillimore, II. §§ 39-40--Twiss, II. § 8--Taylor, §§ - 34-36--Bluntschli, § 12--Heffter, § 242--Geffcken in Holtzendorff, - III. pp. 679-684--Ullmann, §§ 71-72--Bonfils, Nos. - 796-814--Despagnet, Nos. 478-482--Pradier-Fodéré, VI. Nos. - 2593-2599--Rivier, II. § 46--Nys, III. pp. 7-17--Calvo, III. §§ - 1674-1681--Fiore, II. Nos. 1216-1224, and Code, Nos. - 1206-1245--Martens, I. § 52--Charles de Martens, "Guide - diplomatique," vol. I. § 58--Pradier-Fodéré, "Cours de droit - diplomatique" (1881), vol. II. pp. 372-424--Zaleski, "Die - völkerrechtliche Bedeutung der Congresse" (1874)--Nippold, "Die - Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten" - (1907), pp. 480-526. - -[Sidenote: Conception of Congresses and Conferences.] - -§ 483. International congresses and conferences are formal meetings of -the representatives of several States for the purpose of discussing -matters of international interest and coming to an agreement concerning -these matters. As far as language is concerned, the term "congress" as -well as "conference" may be used for the meetings of the representatives -of only two States, but as a rule congresses or conferences denote such -bodies only as are composed of the representatives of a greater number -of States. Several writers[841] allege that there are characteristic -differences between a congress and a conference. But all such alleged -differences vanish in face of the fact that the Powers, when summoning a -meeting of representatives, name such body either congress or conference -indiscriminately. It is not even correct to say that the more important -meetings are named congresses, in contradistinction to conferences, for -the Hague Peace Conferences of 1899 and 1907 were, in spite of their -grand importance, denominated conferences. - -[Footnote 841: See, for instance, Martens, I. § 52; Fiore, II. §§ -1216-1224, and Code, No. 1231.] - -Much more important than the mere terminological difference between -congress and conference is the difference of the representatives who -attend the meeting. - -For it may be that the heads of the -States meet at a congress or conference, or that the representatives -consist of diplomatic envoys and Secretaries for Foreign Affairs of the -Powers. But, although congresses and conferences of heads of States have -been held in the past and might at any moment be held again in the -future, there can be no doubt that the most important matters are -treated by congresses and conferences consisting of diplomatic -representatives of the Powers. - -[Sidenote: Parties to Congresses and Conferences.] - -§ 484. Congresses and conferences not being organised by customary or -conventional International Law, no rules exist with regard to the -parties of a congress or conference. Everything depends upon the purpose -for which a congress or a conference meets, and upon the Power which -invites other Powers to the meeting. If it is intended to settle certain -differences, it is reasonable that all the States concerned should be -represented, for a Power which is not represented need not consent to -the resolutions of the congress. If the creation of new rules of -International Law is intended, at least all full-Sovereign members of -the Family of Nations ought to be represented. To the First Peace -Conference at the Hague, nevertheless, only the majority of States were -invited to send representatives, the South American Republics not being -invited at all. But to the Second Peace Conference of 1907 forty-seven -States were invited, although only forty-four sent representatives. -Costa Rica, Honduras, and Abyssinia were invited, but did not send any -delegates. - -It is frequently maintained that only full-Sovereign States can be -parties to congresses and conferences. This is certainly not correct, as -here, too, everything depends upon the merits of the special case. As a -rule, full-Sovereign States only are parties, but there are exceptions. -Thus, Bulgaria, at the time a vassal under Turkish suzerainty, was a -party to the First as well as to the Second Hague Peace Conference, -although without a vote. There is no reason to deny the rule that half- -and part-Sovereign States can be parties to congresses and conferences -in so far as they are able to negotiate internationally.[842] Such -States are, in fact, frequently asked to send representatives to such -congresses and conferences as meet for non-political matters. - -[Footnote 842: See above, § 478.] - -But no State can be a party which has not been invited, or admitted at -its own request. If a Power thinks it fitting that a congress or -conference should meet, it invites such other Powers as it pleases. The -invited Powers may accept under the condition that certain other Powers -should or should not be invited or admitted. Those Powers which have -accepted the invitation become parties if they send representatives. -Each party may send several representatives, but they have only one -vote, given by the senior representative for himself and his -subordinates. - -[Sidenote: Procedure at Congresses and Conferences.] - -§ 485. After the place and time of meeting have been arranged--such -place may be neutralised for the purpose of securing the independence of -the deliberations and discussions--the representatives meet and -constitute themselves by exchanging their commissions and electing a -president and other officers. It is usual, but not obligatory,[843] for -the Secretary for Foreign Affairs of the State within which the congress -meets to be elected president. If the difficulty of the questions on the -programme makes it advisable, special committees are appointed for the -purpose of preparing the matter for discussion by the body of the -congress. In such discussion all representatives can take part. After -the discussion follows the voting. The motion must be carried -unanimously to consummate the task of the congress, for the vote of the -majority has no power whatever in regard to the dissenting parties. But -it is possible that the majority considers the motion binding for its -members. A protocol is to be kept of all the discussions and the voting. -If the discussions and votings lead to a final result upon which the -parties agree, all the points agreed upon are drawn up in an Act, which -is signed by the representatives and which is called the Final Act or -the General Act of the congress or conference. A party can make a -declaration or a reservation in signing the Act for the purpose of -excluding a certain interpretation of the Act in the future. And the Act -may expressly stipulate freedom for States which were not parties to -accede to it in future. - -[Footnote 843: Thus at both Hague Peace Conferences the first Russian -delegate was elected president.] - - -III - -TRANSACTIONS BESIDES NEGOTIATION - - Bluntschli, § 84--Hartmann, § 91; Gareis, § 77--Liszt, § 20. - -[Sidenote: Different kinds of Transaction.] - -§ 486. International transaction is the term for every act on the -part of a State in its intercourse with other States. Besides -negotiation, which has been discussed above in §§ 477-482, there -are eleven other kinds of international transactions which are of -legal importance--namely, declaration, notification, protest, -renunciation, recognition, intervention, retorsion, reprisals, -pacific blockade, war, and subjugation. Recognition has already -been discussed above in §§ 71-75, as has also intervention in §§ -134-138, and, further, subjugation in §§ 236-241. Retorsion, -reprisals, pacific blockade, and war will be treated in the second -volume of this work. There are, therefore, here to be discussed -only the remaining four transactions--namely, declaration, -notification, protest, and renunciation. - -[Sidenote: Declaration.] - -§ 487. The term "declaration" is used in three different meanings. It -is, first, sometimes used as the title of a body of stipulations of a -treaty according to which the parties engage themselves to pursue in -future a certain line of conduct. The Declaration of Paris, 1856, the -Declaration of St. Petersburg, 1868, and the Declaration of London, -1909, are instances of this. Declarations of this kind differ in no -respect from treaties.[844] One speaks, secondly, of declarations when -States communicate to other States or _urbi et orbi_ an explanation and -justification of a line of conduct pursued by them in the past, or an -explanation of views and intentions concerning certain matters. -Declarations of this kind may be very important, but they hardly -comprise transactions out of which rights and duties of other States -follow. But there is a third kind of declarations out of which rights -and duties do follow for other States, and it is this kind which -comprises a specific international transaction, although the different -declarations belonging to this group are by no means of a uniform -character. Declarations of this kind are declarations of war, -declarations on the part of belligerents concerning the goods they will -condemn as contraband, declarations at the outbreak of war on the part -of third States that they will remain neutral, and others. - -[Footnote 844: See below, § 508, where is mentioned the attempt of the -British Foreign Office to give to the term "declaration" a specific -meaning.] - -[Sidenote: Notification.] - -§ 488. Notification is the technical term for the communication to other -States of the knowledge of certain facts and events of legal importance. -But a distinction must be drawn between obligatory and merely usual -notification. - -Notification has of late been stipulated in several cases to be -obligatory. Thus, according to article 34 of the General Act of the -Berlin Congo Conference of 1885, notification of new occupations and the -like on the African coast is obligatory. Thus, further, according to -article 84 of the Hague Convention for the peaceful adjustment of -international differences, in case a number of States are parties to a -treaty and two of the parties are at variance concerning the -interpretation of such treaty and agree to have the difference settled -by arbitration, they have to notify this agreement to all other parties -to the treaty. Again, according to article 2 of the Hague Convention -concerning the Commencement of Hostilities, 1907, the outbreak of war -must be notified to the neutral Powers, and so must the declaration of a -blockade,[845] according to article 11 of the Declaration of London, -1909. - -[Footnote 845: See also Declaration of London, articles 11 (2), 16, 23, -25, and 26.] - -Apart from such cases in which notification is stipulated as obligatory, -it is in principle not obligatory, although in fact it frequently takes -place because States cannot be considered subject to certain duties -without the knowledge of the facts and events which give rise to these -duties. Thus it is usual to notify to other States changes in the -headship and in the form of government of a State, the establishment of -a Federal State, an annexation after conquest, the appointment of a new -Secretary for Foreign Affairs, and the like. - -[Sidenote: Protest.] - -§ 489. Protest is a formal communication on the part of a State to -another that it objects to an act performed or contemplated by the -latter. A protest serves the purpose of preservation of rights, or of -making it known that the protesting State does not acquiesce in and does -not recognise certain acts. A protest can be lodged with another State -concerning acts of the latter which have been notified to the former or -which have otherwise become known. On the other hand, if a State -acquires knowledge of an act which it considers internationally illegal -and against its rights, and nevertheless does not protest, such attitude -implies renunciation of such rights, provided a protest would have been -necessary to preserve a claim. It may further happen that a State at -first protests, but afterwards either expressly[846] or tacitly -acquiesces in the act. And it must be emphasised that under certain -circumstances and conditions a simple protest on the part of a State -without further action is not in itself sufficient to preserve the -rights in behalf of which the protest was made.[847] - -[Footnote 846: Thus by section 2 of the Declaration concerning Siam, -Madagascar, and the New Hebrides, which is embodied in the Anglo-French -Agreement of April 8, 1904, Great Britain withdrew the protest which she -had raised against the introduction of the Customs tariff established at -Madagascar after the annexation to France.] - -[Footnote 847: See below, § 539, concerning the withdrawal of Russia -from article 59 of the Treaty of Berlin, 1878, stipulating the freedom -of the port of Batoum.] - -[Sidenote: Renunciation.] - -§ 490. Renunciation is the deliberate abandonment of rights. It can be -given _expressis verbis_ or tacitly. If, for instance, a State by -occupation takes possession of an island which has previously been -occupied by another State,[848] the latter tacitly renounces its rights -by not protesting as soon as it receives knowledge of the fact. -Renunciation plays a prominent part in the amicable settlement of -differences between States, either one or both parties frequently -renouncing their claims for the purpose of coming to an agreement. But -it must be specially observed that mere silence on the part of a State -does not imply renunciation; this occurs only when a State remains -silent, although a protest is necessary to preserve a claim. - -[Footnote 848: See above, § 247.] - - - - -CHAPTER II - -TREATIES - - -I - -CHARACTER AND FUNCTION OF TREATIES - - Vattel, II. §§ 152, 153, 157, 163--Hall, § 107--Phillimore, II. § - 44--Twiss, I. §§ 224-233--Taylor, §§ 341-342--Bluntschli, § - 402--Heffter, § 81--Despagnet, Nos. 435-436--Pradier-Fodéré, II. - Nos. 888-919--Rivier, II. pp. 33-40--Nys, III. pp. 18-20 and - 43-48--Calvo, III. §§ 1567-1584--Fiore, II. Nos. 976-982--Martens, - I. § 103--Bergbohm, "Staatsverträge und Gesetze als Quellen des - Völkerrechts" (1877)--Jellinek, "Die rechtliche Natur der - Staatenverträge" (1880)--Laghi, "Teoria dei trattati - internazionali" (1882)--Buonamici, "Dei trattati internazionali" - (1888)--Nippold, "Der völkerrechtliche Vertrag" (1894)--Triepel, - "Völkerrecht und Landesrecht" (1899), pp. 27-90. - -[Sidenote: Conception of Treaties.] - -§ 491. International treaties are conventions or contracts between two -or more States concerning various matters of interest. Even before a Law -of Nations in the modern sense of the term was in existence, treaties -used to be concluded between States. And although in those times -treaties were neither based on nor were themselves a cause of an -International Law, they were nevertheless considered sacred and binding -on account of religious and moral sentiment. However, since the manifold -intercourse of modern times did not then exist between the different -States, treaties did not discharge such all-important functions in the -life of humanity as they do now. - -[Sidenote: Different kinds of Treaties.] - -§ 492. These important functions are manifest if attention is given to -the variety of international treaties which exist nowadays and are day -by day concluded for innumerable purposes. In regard to State property, -treaties are concluded of cession, of boundary, and many others. -Alliances, treaties of protection, of guarantee, of neutrality, and of -peace are concluded for political purposes. Various purposes are served -by consular treaties, commercial[849] treaties, treaties in regard to -the post, telegraphs, and railways, treaties of copyright and the like, -of jurisdiction, of extradition, monetary treaties, treaties in regard -to measures and weights, to rates, taxes, and custom-house duties, -treaties on the matter of sanitation with respect to epidemics, treaties -in the interest of industrial labourers, and treaties with regard to -agriculture and industry. Again, various purposes are served by treaties -concerning warfare, mediation, arbitration, and so on. - -[Footnote 849: See below, §§ 578-580.] - -I do not intend to discuss the question of classification of the -different kinds of treaties, for hitherto all attempts[850] at such -classification have failed. But there is one distinction to be made -which is of the greatest importance and according to which the whole -body of treaties is to be divided into two classes. For treaties may, on -the one hand, be concluded for the purpose of confirming, defining, or -abolishing existing customary rules, and of establishing new rules for -the Law of Nations. Treaties of this kind ought to be termed -_law-making_ treaties. On the other hand, treaties may be concluded for -all kinds of other purposes. Law-making treaties as a source of rules of -International Law have been discussed above (§ 18); the most important -of these treaties will be considered below (§§ 556-568_b_). - -[Footnote 850: Since the time of Grotius the science of the Law of -Nations has not ceased attempting a satisfactory classification of the -different kinds of treaties. See Heffter, §§ 88-91; Bluntschli, §§ -442-445; Martens, I. § 113; Ullmann, § 82; Wheaton, § 268 (following -Vattel, II. § 169); Rivier, II. pp. 106-118; Westlake, I. p. 283, and -many others.] - -[Sidenote: Binding Force of Treaties.] - -§ 493. The question as to the reason of the binding force of -international treaties always was, and still is, very much disputed. -That all those publicists who deny the legal character of the Law of -Nations deny likewise a legally binding force in international treaties -is obvious. But even among those who acknowledge the legal character of -International Law, unanimity by no means exists concerning this binding -force of treaties. The question is all the more important as everybody -knows that treaties are sometimes broken, rightly according to the -opinion of the one party, and wrongly according to the opinion of the -other. Many publicists find the binding force of treaties in the Law of -Nature, others in religious and moral principles, others[851] again in -the self-restraint exercised by States in becoming a party to a treaty. -Some writers[852] assert that it is the contracting parties' own will -which gives binding force to their treaties, and others[853] teach that -such binding force is to be found _im Rechtsbewusstsein der -Menschheit_--that is, in the idea of right innate in man. I believe that -the question can satisfactorily be dealt with only by dividing it into -several different questions and by answering those questions _seriatim_. - -[Footnote 851: So Hall, § 107; Jellinek, "Staatenverträge," p. 31; -Nippold, § 11.] - -[Footnote 852: So Triepel, "Völkerrecht und Landesrecht" (1899), p. 82.] - -[Footnote 853: So Bluntschli, § 410.] - -First, the question is to be answered why treaties are legally binding. -The answer must categorically be that this is so because there exists a -customary rule of International Law that treaties are binding. - -Then the question might be put as to the cause of the existence of such -customary rule. The answer must be that such rule is the product of -several joint causes. Religious and moral reasons require such a rule -quite as much as the interest of the States, for no law could exist -between nations if such rule did not exist. All causes which have been -and are still working to create and maintain an International Law are at -the background of this question. - -And, thirdly, the question might be put how it is possible to speak of a -legally binding force in treaties without a judicial authority to -enforce their stipulations. The answer must be that the binding force of -treaties, although it is a legal force, is not the same as the binding -force of contracts according to Municipal Law, since International Law -is a weaker law, and for this reason less enforceable, than Municipal -Law. But just as International Law does not lack legal character in -consequence of the fact that there is no central authority[854] above -the States which could enforce it, so international treaties are not -deficient of a legally binding force because there is no judicial -authority for the enforcement of their stipulations. - -[Footnote 854: See above, § 5.] - - -II - -PARTIES TO TREATIES - - Vattel, II. §§ 154-156, 206-212--Hall, § 108--Westlake, I. p. - 279--Phillimore, II. §§ 48-49--Halleck, I. pp. 275-278--Taylor, §§ - 361-365--Wheaton, §§ 265-267--Moore, V. §§ 734-737--Bluntschli, §§ - 403-409--Heffter, §§ 84-85--Ullmann, § 75--Bonfils, No. - 818--Despagnet, No. 446--Pradier-Fodéré, II. Nos. - 1058-1068--Rivier, II. pp. 45-48--Nys, III. pp. 20-24--Calvo, III. - §§ 1616-1618--Fiore, II. Nos. 984-1000, and Code, Nos. - 743-749--Martens, I. § 104--Nippold, op. cit. pp. 104-112--Schoen - in Z.V. V. (1911), pp. 400-431. - -[Sidenote: The Treaty-making Power.] - -§ 494. The so-called right of making treaties is not a right of a State -in the technical meaning of the term, but a mere competence attaching to -sovereignty. A State possesses, therefore, treating-making power only so -far as it is sovereign. Full-Sovereign States may become parties to -treaties of all kinds, being regularly competent to make treaties on -whatever matters they please. Not-full Sovereign States, however, can -become parties to such treaties only according to their competence to -conclude. It is impossible to lay down a hard-and-fast rule concerning -such competence of all not-full Sovereign States. Everything depends -upon the special case. Thus, the constitutions of Federal States -comprise provisions with regard to the competence, if any, of the -member-States to conclude international treaties among themselves as -well as with foreign States.[855] Thus, again, it depends upon the -special relation between the suzerain and the vassal how far the latter -possesses the competence to enter into treaties with foreign States; -ordinarily a vassal can conclude treaties concerning such matters as -railways, extradition, commerce, and the like. - -[Footnote 855: According to articles 7 and 9 of the Constitution of -Switzerland the Swiss member-States are competent to conclude -non-political treaties among themselves, and, further, such treaties -with foreign States as concern matters of police, of local traffic, and -of State economics. According to article 11 of the Constitution of the -German Empire, the German member-States are competent to conclude -treaties concerning all such matters as do not, in conformity with -article 4 of the Constitution, belong to the competence of the Empire. -On the other hand, according to article 1, section 10, of the -Constitution of the United States of America, the member-States are -incompetent either to conclude treaties among themselves or with foreign -States.] - -[Sidenote: Treaty-making Power exercised by Heads of States.] - -§ 495. The treaty-making power of all States is exercised by their -heads, either personally or through representatives appointed by these -heads. The Holy Alliance of Paris, 1815, was personally concluded by the -Emperors of Austria and Russia and the King of Prussia. And when, on -June 24, 1859, the Austrian army was defeated at Solferino, the Emperors -of Austria and France met on July 11, 1859, at Villafranca and agreed in -person on preliminaries of peace. Yet, as a rule, heads of States do not -act in person, but authorise representatives to act for them. Such -representatives receive a written commission, known as powers or full -powers, which authorises them to negotiate in the name of the respective -heads of States. They also receive oral or written, open or secret -instructions. But, as a rule, they do not conclude a treaty finally, for -all treaties concluded by such representatives are in principle not -valid before ratification.[856] If they conclude a treaty by exceeding -their powers or acting contrary to their instructions, the treaty is not -a real treaty and not binding upon the State they represent. A treaty of -such a kind is called a _sponsio_ or _sponsiones_. _Sponsiones_ may -become a real treaty and binding upon the State through the latter's -approval. Nowadays, however, the difference between real treaties and -_sponsiones_ is less important than in former times, when the custom in -favour of the necessity of ratification for the validity of treaties was -not yet general. If nowadays representatives exceed their powers, their -States can simply refuse ratification of the _sponsio_. - -[Footnote 856: See below, § 510.] - -[Sidenote: Minor Functionaries exercising Treaty-making Power.] - -§ 496. For some non-political purposes of minor importance, certain -minor functionaries are recognised as competent to exercise the -treaty-making power of their States. Such functionaries are _ipso facto_ -by their offices and duties competent to enter into certain agreements -without the requirement of ratification. Thus, for instance, in time of -war, military and naval officers in command[857] can enter into -agreements concerning a suspension of arms, the surrender of a fortress, -the exchange of prisoners, and the like. But it must be emphasised that -treaties of this kind are valid only when these functionaries have not -exceeded their powers. - -[Footnote 857: See Grotius, III. c. 22.] - -[Sidenote: Constitutional Restrictions.] - -§ 497. Although the heads of States are regularly, according to the Law -of Nations, the organs that exercise the treaty-making power of the -States, constitutional restrictions imposed upon the heads concerning -the exercise of this power are nevertheless of importance for the Law of -Nations. Such treaties concluded by heads of States or representatives -authorised by these heads as violate constitutional restrictions are not -real treaties and do not bind the State concerned, because the -representatives have exceeded their powers in concluding the -treaties.[858] Such constitutional restrictions, although they are not -of great importance in Great Britain,[859] play a prominent part in the -Constitutions of most countries. Thus, according to article 8 of the -French Constitution, the President exercises the treaty-making power; -but peace treaties and such other treaties as concern commerce, finance, -and some other matters, are not valid without the co-operation of the -French Parliament. Thus, further, according to articles 1, 4, and 11 of -the Constitution of the German Empire, the Emperor exercises the -treaty-making power; but such treaties as concern the frontier, -commerce, and several other matters, are not valid without the -co-operation of the Bundesrath and the Reichstag. Again, according to -article 2, section 2, of the Constitution of the United States, the -President can only ratify treaties with the consent of the Senate. - -[Footnote 858: The whole matter is discussed with great lucidity by -Nippold, op. cit. pp. 127-164; see also Schoen, loc. cit.] - -[Footnote 859: See Anson, "The Law and Custom of the Constitution," II. -(2nd ed.), pp. 297-300.] - -[Sidenote: Mutual Consent of the Contracting Parties.] - -§ 498. A treaty being a convention, mutual consent of the parties is -necessary. Mere proposals made by one party and not accepted by the -other are, therefore, not binding upon the proposer. Without force are -also pollicitations which contain mere promises without acceptance by -the party to whom they were made. Not binding are, lastly, so-called -_punctationes_, mere negotiations on the items of a future treaty, -without the parties entering into an obligation to conclude that treaty. -But such _punctationes_ must not be confounded either with a preliminary -treaty or with a so-called _pactum de contrahendo_. A preliminary treaty -requires the mutual consent of the parties with regard to certain -important points, whereas other points have to be settled by the -definitive treaty to be concluded later. Such preliminary treaty is a -real treaty and therefore binding upon the parties. A _pactum de -contrahendo_ requires likewise the mutual consent of the parties. It is -an agreement upon certain points to be incorporated in a future treaty, -and is binding upon the parties. The difference between _punctationes_ -and a _pactum de contrahendo_ is, that the latter stipulates an -obligation of the parties to settle the respective points by a treaty, -whereas the former does not. - -[Sidenote: Freedom of Action of consenting Representatives.] - -§ 499. As a treaty will lack binding force without real consent, -absolute freedom of action on the part of the contracting parties is -required. It must, however, be understood that circumstances of urgent -distress, such as either defeat in war or the menace of a strong State -to a weak State, are, according to the rules of International Law, not -regarded as excluding the freedom of action of a party consenting to the -terms of a treaty. The phrase "freedom of action" applies only to the -_representatives_ of the contracting States. It is _their_ freedom of -action in consenting to a treaty which must not have been interfered -with and which must not have been excluded by other causes. A treaty -concluded through intimidation exercised against the representatives of -either party or concluded by intoxicated or insane representatives is -not binding upon the party so represented. But a State which was forced -by circumstances to conclude a treaty containing humiliating terms has -no right afterwards to shake off the obligations of such treaty on the -ground that its freedom of action was interfered with at the time.[860] -This must be emphasised, because in practice such cases of repudiation -have frequently occurred. A State may, of course, hold itself justified -by political necessity in shaking off such obligations, but this does -not alter the fact that such action is a breach of law. - -[Footnote 860: See examples in Moore, V. § 742.] - -[Sidenote: Delusion and Error in Contracting Parties.] - -§ 500. Although a treaty was concluded with the real consent of the -parties, it is nevertheless not binding if the consent was given in -error, or under a delusion produced by a fraud of the other contracting -party. If, for instance, a boundary treaty were based upon an incorrect -map or a map fraudulently altered by one of the parties, such treaty -would by no means be binding. Although there is freedom of action in -such cases, consent has been given under circumstances which prevent the -treaty from being binding. - - -III - -OBJECTS OF TREATIES - - Vattel, II. §§ 160-162, 166--Hall, § 108--Phillimore, II. § - 51--Walker, § 30--Bluntschli, §§ 410-416--Heffter, § 83--Ullmann, - § 97--Bonfils, No. 819--Despagnet, No. 445--Pradier-Fodéré, II. - Nos. 1080-1083--Mérignhac, II. p. 640--Rivier, II. pp. 57-63--Nys, - III. p. 24--Fiore, II. Nos. 1001-1004, and Code, Nos. - 755-758--Martens, I. § 110--Jellinek, "Die rechtliche Natur der - Staatenverträge" (1880), pp. 59-60--Nippold, op. cit. pp. 181-190. - -[Sidenote: Objects in general of Treaties.] - -§ 501. The object of treaties is always an obligation, whether mutual -between all the parties or unilateral on the part of one only. Speaking -generally, the object of treaties can be an obligation concerning any -matter of interest for States. Since there exists no other law than -International Law for the intercourse of States with each other, every -agreement between them regarding any obligation whatever is a treaty. -However, the Law of Nations prohibits some obligations from becoming -objects of treaties, so that such treaties as comprise obligations of -this kind are from the very beginning null and void.[861] - -[Footnote 861: The voidance _ab origine_ of these treaties must not be -confounded with voidance of such treaties as are valid in their -inception, but become afterwards void on some ground or other; see -below, §§ 541-544.] - -[Sidenote: Obligations of Contracting Parties only can be Object.] - -§ 502. Obligations to be performed by a State other than a contracting -party cannot be the object of a treaty. A treaty stipulating such an -obligation would be null and void. But this must not be confounded with -the obligation undertaken by one of the contracting States to exercise -an influence upon another State to perform certain acts. The object of a -treaty with such a stipulation is an obligation of one of the -contracting States, and the treaty is therefore valid and binding. - -[Sidenote: An Obligation inconsistent with other Obligations cannot be -an Object.] - -§ 503. Such obligation as is inconsistent with obligations under -treaties previously concluded by one State with another cannot be the -object of a treaty with a third State. Thus, in 1878, when after the war -Russia and Turkey concluded the preliminary Treaty of Peace of San -Stefano, which was inconsistent with the Treaty of Paris of 1856 and the -Convention of London of 1871, England protested,[862] and the Powers met -at the Congress of Berlin to arrange matters by mutual consent. - -[Footnote 862: See Martens, N.R.G. 2nd Ser. III. p. 257.] - -[Sidenote: Object must be physically possible.] - -§ 504. An obligation to perform a physical impossibility[863] cannot be -the object of a treaty. If perchance a State entered into a convention -stipulating an obligation of that kind, no right to claim damages for -non-fulfilment of the obligation would arise for the other party, such -treaty being legally null and void. - -[Footnote 863: See below, § 542.] - -[Sidenote: Immoral Obligations.] - -§ 505. It is a customarily recognised rule of the Law of Nations that -immoral obligations cannot be the object of an international treaty. -Thus, an alliance for the purpose of attacking a third State without -provocation is from the beginning not binding. It cannot be denied that -in the past many treaties stipulating immoral obligations have been -concluded and executed, but this does not alter the fact that such -treaties were legally not binding upon the contracting parties. It must, -however, be taken into consideration that the question as to what is -immoral is often controversial. An obligation which is considered -immoral by other States may not necessarily appear immoral to the -contracting parties, and there is no Court that can decide the -controversy. - -[Sidenote: Illegal Obligations.] - -§ 506. It is a unanimously recognised customary rule of International -Law that obligations which are at variance with universally recognised -principles of International Law cannot be the object of a treaty. If, -for instance, a State entered into a convention with another State not -to interfere in case the latter should appropriate a certain part of the -Open Sea, or should command its vessels to commit piratical acts on the -Open Sea, such treaty would be null and void, because it is a principle -of International Law that no part of the Open Sea can be appropriated, -and that it is the duty of every State to interdict to its vessels the -commission of piracy on the High Seas. - - -IV - -FORM AND PARTS OF TREATIES - - Grotius, II. c. 15, § 5--Vattel, II. § 153--Hall, § 109--Westlake, - I. pp. 279-281--Wheaton, § 253--Moore, V. § 740--Bluntschli, §§ - 417-427--Hartmann, §§ 46-47--Heffter, §§ 87-91--Ullmann, § - 80--Bonfils, Nos. 821-823--Pradier-Fodéré, II. Nos. - 1084-1099--Mérignhac, II. p. 645--Rivier, II. pp. 64-68--Nys, III. - pp. 25-28--Fiore, II. Nos. 1004-1006, and Code, Nos. - 759-763--Martens, I. § 112--Jellinek, "Die rechtliche Natur der - Staatenverträge" (1880), p. 56--Nippold, op. cit. pp. 178-181. - -[Sidenote: No necessary Form of Treaties.] - -§ 507. The Law of Nations includes no rule which prescribes a necessary -form of treaties. A treaty is, therefore, concluded as soon as the -mutual consent of the parties becomes clearly apparent. Such consent -must always be given expressly, for a treaty cannot be concluded by -tacit consent. But it matters not whether an agreement is made in -writing, orally, or by symbols. Thus, in time of war, the exhibition of -a white flag symbolises the proposal of an agreement as to a brief truce -for the purpose of certain negotiations, and the acceptance of the -proposal on the part of the other side by the exhibition of a similar -symbol establishes a convention as binding as any written treaty. Thus, -too, history tells of an oral treaty of alliance, secured by an oath, -concluded in 1697 at Pillau between Peter the Great of Russia and -Frederick III., Elector of Brandenburg.[864] Again, treaties are -sometimes concluded through an exchange of diplomatic notes between the -Secretaries for Foreign Affairs of two States or through the exchange of -personal letters between the heads of two States. However, as a matter -of reason, treaties usually take the form of a written[865] document -signed by duly authorised representatives of the contracting parties. - -[Footnote 864: See Martens, I. § 112.] - -[Footnote 865: The only writer who nowadays insists upon a _written_ -agreement for a treaty to be valid is, as far as I know, Bulmerincq (§ -56). But although all important treaties are naturally concluded in -writing, the example of the agreements concluded between armed forces in -time of war either orally or through symbols proves that the written -form is not absolutely necessary.] - -[Sidenote: Acts, Conventions, Declarations.] - -§ 508. International compacts which take the form of written contracts, -are, besides _Agreements_ or _Treaties_, sometimes termed _Acts_, -sometimes _Conventions_, sometimes _Declarations_. But there is no -essential difference between them, and their binding force upon the -contracting parties is the same whatever be their name. The Geneva -Convention, the Declarations of Paris and of London, and the Final Act -of the Vienna Congress are as binding as any agreement which goes under -the name of "Treaty" or "Convention." The attempt[866] to distinguish -fundamentally between a "Declaration" and a "Convention" by maintaining -that whereas a "Convention" creates rules of particular International -Law between the contracting States only, a "Declaration" contains the -recognition, on the part of the best qualified and most interested -Powers, of rules of universal International Law, does not stand the -test of scientific criticism. A "Declaration" is nothing else but the -title of a law-making treaty according to which the parties engage -themselves to pursue in future a certain line of conduct.[867] But such -law-making treaties are quite as frequently styled "Conventions" as -"Declarations." The best example is the Hague "Convention" concerning -the laws and usages of war, which is based upon the unratified -"Declaration" concerning the laws and customs of war produced by the -Brussels Conference of 1874. - -[Footnote 866: On the part of the British Foreign Office, see -Parliamentary Papers, Miscellaneous, No. 5 (1909), Cd. 4555, Proceedings -of the International Naval Conference held in London, December -1908-1909, p. 57.] - -[Footnote 867: See above, § 487.] - -[Sidenote: Parts of Treaties] - -§ 509. Since International Law lays down no rules concerning the form of -treaties, there exist no rules concerning the arrangement of the parts -of written treaties. But the following order is usually observed. A -first part, the so-called _preamble_, comprises the names of the heads -of the contracting States, of their duly authorised representatives, and -the motives for the conclusion of the treaty. A second part consists of -the primary stipulations in numbered articles. A third part consists of -miscellaneous stipulations concerning the duration of the treaty, its -ratification, the accession of third Powers, and the like. The last part -comprises the signatures of the representatives. But this order is by no -means necessary. Sometimes, for instance, the treaty itself does not -contain the very stipulations upon which the contracting parties have -agreed, such stipulations being placed in an annex to the treaty. It may -also happen that a treaty contains secret stipulations in an additional -part, which are not made public with the bulk of the stipulations.[868] - -[Footnote 868: The matter is treated with all details by Pradier-Fodéré, -II. §§ 1086-1096.] - - -V - -RATIFICATION OF TREATIES - - Grotius, II. c. 11, § 12--Pufendorf, III. c. 9, § 2--Vattel, II. § - 156--Hall, § 110--Westlake, I. pp. 279-280--Lawrence, § - 132--Phillimore, II. § 52--Twiss, I. § 214--Halleck, I. pp. - 276-277--Taylor, §§ 364-367--Moore, V. §§ 743-756--Walker, § - 30--Wharton, II. §§ 131-131A--Wheaton, §§ 256-263--Bluntschli, §§ - 420-421--Heffter, § 87--Gessner in Holtzendorff, III. pp. - 15-18--Ullmann, § 78--Bonfils, Nos. 824-831--Pradier-Fodéré, II. - Nos. 1100-1119--Mérignhac, II. pp. 652-666--Nys, III. pp. - 28-36--Rivier, II. § 50--Calvo, III. §§ 1627-1636--Fiore, II. No. - 994, and Code, No. 750--Martens, I. §§ 105-108--Wicquefort, - "L'Ambassadeur et ses fonctions" (1680), II. Section - XV.--Jellinek, "Die rechtliche Natur der Staatenverträge" (1880), - pp. 53-56--Nippold, op. cit. pp. 123-125--Wegmann, "Die - Ratifikation von Staatsverträgen" (1892). - -[Sidenote: Conception and Function of Ratification.] - -§ 510. Ratification is the term for the final confirmation given by the -parties to an international treaty concluded by their representatives. -Although a treaty is concluded as soon as the mutual consent is manifest -from acts of the duly authorised representatives, its binding force is -as a rule suspended till ratification is given. The function of -ratification is, therefore, to make the treaty binding, and, if it is -refused, the treaty falls to the ground in consequence. As long as -ratification is not given, the treaty is, although concluded, not -perfect. Many writers[869] maintain that, as a treaty is not binding -without ratification, it is the latter which really contains the mutual -consent and really concludes the treaty. Before ratification, they -maintain, there is no treaty concluded, but a mere mutual proposal -agreed to to conclude a treaty. But this opinion does not accord with -the real facts.[870] For the representatives are authorised and intend -to conclude a treaty by their signatures. The contracting States have -always taken the standpoint that a treaty is concluded as soon as their -mutual consent is clearly apparent. They have always made a distinction -between their consent given by representatives and their ratification to -be given afterwards, they have never dreamt of confounding the two and -considering their ratification their consent. It is for that reason that -a treaty cannot be ratified in part, that no alterations of the treaty -are possible through the act of ratification, that a treaty may be -tacitly ratified by its execution, that a treaty always is dated from -the day when it was duly signed by the representatives and not from the -day of its ratification, that there is no essential difference between -such treaties as want and such as do not want ratification. - -[Footnote 869: See, for instance, Ullmann, § 78; Jellinek, p. 55; -Nippold, p. 123; Wegmann, p. 11.] - -[Footnote 870: The matter is very ably discussed by Rivier, II. pp -74-76.] - -[Sidenote: Rationale for the Institution of Ratification.] - -§ 511. The rationale for the institution of ratification is another -argument for the contention that the conclusion of the treaty by the -representatives is to be distinguished from the confirmation given by -the respective States through ratification. The reason is that States -want to have an opportunity of re-examining not the single stipulations, -but the whole effect of the treaty upon their interests. These interests -may be of various kinds. They may undergo a change immediately after the -signing of the treaty by the representatives. They may appear to public -opinion in a different light from that in which they appear to the -Governments, so that the latter want to reconsider the matter. Another -reason is that treaties on many important matters are, according to the -Constitutional Law of most States, not valid without some kind of -consent of Parliaments. Governments must therefore have an opportunity -of withdrawing from a treaty in case Parliaments refuse their -recognition. These two reasons have made, and still make, the -institution of ratification a necessity for International Law. - -[Sidenote: Ratification regularly, but not absolutely, necessary.] - -§ 512. But ratification, although necessary in principle, is not always -essential. Although it is now a universally recognised customary rule of -International Law that treaties are regularly in need of ratification, -even if the latter was not expressly stipulated, there are exceptions -to the rule. For treaties concluded by such State functionaries[871] as -have within certain narrow limits, _ipso facto_ by their office, the -power to exercise the treaty-making competence of their State do not -want ratification, but are binding at once when they are concluded, -provided the respective functionaries have not exceeded their powers. -Further, treaties concluded by heads of States in person do not want -ratification provided that they do not concern matters in regard to -which constitutional restrictions[872] are imposed upon heads of States. -And, lastly, it may happen that the contracting parties stipulate -expressly, for the sake of a speedy execution of a treaty, that it shall -be binding at once without ratifications being necessary. Thus, the -Treaty of London of July 15, 1840, between Great Britain, Austria, -Russia, Prussia, and Turkey concerning the pacification of the -Turko-Egyptian conflict was accompanied by a secret protocol,[873] -signed by the representatives of the parties, according to which the -treaty was at once, without being ratified, to be executed. For the -Powers were, on account of the victories of Mehemet Ali, very anxious to -settle the conflict as quickly as possible. But it must be emphasised -that renunciation of ratification is valid only if given by -representatives duly authorised to make such renunciation. If the -representatives have not received a special authorisation to dispense -with ratification, then renunciation is not binding upon the States -which they represent. - -[Footnote 871: See above, § 496.] - -[Footnote 872: See above, § 497.] - -[Footnote 873: See Martens, N.R.G. I. p. 163.] - -[Sidenote: Length of Time for Ratification.] - -§ 513. No rule of International Law prescribes the length of time within -which ratification must be given or refused. If such length of time is -not specially stipulated by the contracting parties in the very treaty, -a reasonable length of time must be presumed as mutually granted. -Without doubt, a refusal to ratify must be presumed from the lapse of an -unreasonable time without ratification having been made. In most cases, -however, treaties which are in need of ratification contain nowadays a -clause stipulating the reservation of ratification, and at the same time -a length of time within which ratification should take place. - -[Sidenote: Refusal of Ratification.] - -§ 514. The question now requires attention whether ratification can be -refused on just grounds only or according to discretion. Formerly[874] -it was maintained that ratification could not be refused in case the -representatives had not exceeded their powers or violated their secret -instructions. But nowadays there is probably no publicist who maintains -that a State is in any case _legally_[875] bound not to refuse -ratification. Yet many insist that a State is, except for just reasons, -in principle _morally_ bound not to refuse ratification. I cannot see, -however, the value of such a moral in contradistinction to a legal duty. -The fact upon which everybody agrees is that International Law does in -no case impose a duty of ratification upon a contracting party. A State -refusing ratification will always have reasons for such line of action -which appear just to itself, although they may be unjust in the eyes of -others. In practice, ratification is given or withheld at discretion. -But in the majority of cases, of course, ratification is not refused. A -State which often and apparently wantonly refused ratification of -treaties would lose all credit in international negotiations and would -soon feel the consequences. On the other hand, it is impossible to lay -down hard-and-fast rules respecting just and unjust causes of refusal of -ratification. The interests at stake are so various, and the -circumstances which must influence a State are so imponderable, that it -must be left to the discretion of every State to decide the question for -itself. Numerous examples of important treaties which have not found -ratification can be given. It suffices to mention the Hay-Pauncefote -Treaty between the United States and Great Britain regarding the -proposed Nicaragua Canal, signed on February 5, 1900, which was ratified -with modifications by the Senate of the United States, this being -equivalent to refusal of ratification. (See below, § 517.) - -[Footnote 874: See Grotius, II. c. 11, § 12; Bynkershoek, "Quaestiones -juris publici," II. 7; Wicquefort, "L'Ambassadeur," II. 15; Vattel, II. -§ 156; G. F. von Martens, § 48.] - -[Footnote 875: This must be maintained in spite of Wegmann's (p. 32) -assertion that a customary rule of the Law of Nations has to be -recognised that ratification can not regularly be refused. The -hair-splitting scholasticism of this writer is illustrated by a -comparison between his customary rule for the non-refusal of -ratification as arbitrarily constructed by himself, and the opinion -which he (p. 11) emphatically defends that a treaty is concluded only by -ratification.] - -[Sidenote: Form of Ratification.] - -§ 515. No rule of International Law exists which prescribes a necessary -form of ratification. Ratification can therefore be given as well -tacitly as expressly. Tacit ratification takes place when a State begins -the execution of a treaty without expressly ratifying it. Further, -ratification may be given orally or in writing, although I am not aware -of any case in which ratification was given orally. For it is usual for -ratification to take the form of a document duly signed by the heads of -the States concerned and their Secretaries for Foreign Affairs. It is -usual to draft as many documents as there are parties to the convention, -and to exchange these documents between the parties. Sometimes the whole -of the treaty is recited _verbatim_ in the ratifying documents, but -sometimes only the title, preamble, and date of the treaty, and the -names of the signatory representatives are cited. As ratification is the -necessary confirmation only of an already existing treaty, the essential -requirement in a ratifying document is merely that it refer clearly and -unmistakably to the treaty to be ratified. The citation of title, -preamble, date, and names of the representatives is, therefore, quite -sufficient to satisfy that requirement, and I cannot agree with those -writers who maintain that the whole of the treaty ought to be recited -_verbatim_. - -[Sidenote: Ratification by whom effected.] - -§ 516. Ratification is effected by those organs which exercise the -treaty-making power of the States. These organs are regularly the heads -of the States, but they can, according to the Municipal Law of some -States, delegate the power of ratification for some parts of the globe -to other representatives. Thus, the Viceroy of India is empowered to -ratify treaties with certain Asiatic monarchs in the name of the King of -Great Britain and Emperor of India, and the Governor-General of -Turkestan has a similar power for the Emperor of Russia. - -In case the head of a State ratifies a treaty, although the necessary -constitutional requirements have not been previously fulfilled, as, for -instance, in the case in which a treaty has not received the necessary -approval from the Parliament of the said State, the question arises -whether such ratification is valid or null and void. Many writers[876] -maintain that such ratification is nevertheless valid. But this opinion -is not correct, because it is clearly evident that in such a case the -head of the State has exceeded his powers, and that, therefore, the -State concerned cannot be held to be bound by the treaty.[877] The -conflict between the United States and France in 1831, frequently quoted -in support of the opinion that such ratification is valid, is not in -point. It is true that the United States insisted on payment of the -indemnity stipulated by a treaty which had been ratified by the King of -France without having received the necessary approval of the French -Parliament, but the United States did not maintain that the ratification -was valid; she insisted upon payment because the French Government had -admitted that such indemnity was due to her.[878] - -[Footnote 876: See, for instance, Martens, § 107, and Rivier, II. p. -85.] - -[Footnote 877: See above, § 497, and Nippold, p. 147.] - -[Footnote 878: See Wharton, II. § 131A, p. 20.] - -[Sidenote: Ratification can not be partial and conditional.] - -§ 517. It follows from the nature of ratification as a necessary -confirmation of a treaty already concluded that ratification must be -either given or refused, no conditional or partial ratification being -possible. That occasionally a State tries to modify a treaty in -ratifying it cannot be denied, yet conditional ratification is no -ratification at all, but equivalent to refusal of ratification. Nothing, -of course, prevents the other contracting party from entering into fresh -negotiations in regard to such modifications; but it must be emphasised -that such negotiations are negotiations for a new treaty,[879] the old -treaty having become null and void through its conditional ratification. -On the other hand, no obligation exists for such party to enter into -fresh negotiations, it being a fact that conditional ratification is -identical with refusal of ratification, whereby the treaty falls to the -ground. Thus, for instance, when the United States Senate on December -20, 1900, in consenting[880] to the ratification of the Hay-Pauncefote -Treaty as regards the Nicaragua Canal, added modifying amendments, Great -Britain did not accept the amendments and considered the treaty fallen -to the ground. - -[Footnote 879: This is the correct explanation of the practice on the -part of States, which sometimes prevails, of acquiescing, after some -hesitation, in alterations proposed by a party to a treaty in ratifying -it; see examples in Pradier-Fodéré, II. No. 1104, and Calvo, III. § -1630.] - -[Footnote 880: It is of importance to emphasise that the United States' -Senate, in proposing an amendment to a treaty before its ratification, -does not, strictly speaking, ratify such treaty conditionally, since it -is the President, and not the Senate, who possesses the power of -granting or refusing ratification; see Willoughby, "The Constitutional -Law of the United States" (1910), I. p. 462, note 14. The President, -however, according to article 2 of the Constitution, cannot grant -ratification without the consent of the Senate, and the proposal of an -amendment to a treaty on the part of the Senate, therefore, comprises, -indirectly, the proposal of a new treaty.] - -Quite particular is the case of a treaty to which a greater number of -States are parties and which is only partially ratified by one of the -contracting parties. Thus France, in ratifying the General Act of the -Brussels Anti-Slavery Conference of July 2, 1890, excepted from -ratification articles 21 to 23 and 42 to 61, and the Powers have -acquiesced in this partial ratification, so that France is not bound by -these twenty-three articles.[881] - -[Footnote 881: See Martens, N.R.G. 2nd Ser. XXII. (1897), p. 260.] - -But it must be emphasised that ratification is only then partial and -conditional if one or more stipulations of the treaty which has been -signed without reservation are exempted from ratification, or if an -amending clause is added to the treaty during the process of -ratification. It is therefore quite legitimate for a party who has -signed a treaty with certain reservations as regards certain -articles[882] to ratify the approved articles only, and it would be -incorrect to speak in this case of a partial ratification. - -[Footnote 882: See below, § 519.] - -Again, it is quite legitimate--and one ought not in that case to speak -of conditional ratification--for a contracting party who wants to secure -the interpretation of certain terms and clauses of a treaty to grant -ratification with the understanding only that such terms and clauses -should be interpreted in such and such a way. Thus when, in 1911, -opposition arose in Great Britain to the ratification of the Declaration -of London on account of the fact that the meaning of certain terms was -ambiguous and that the wording of certain clauses did not agree with the -interpretation given to them by the Report of the Drafting Committee, -the British Government declared that they would only ratify with the -understanding that the interpretation contained in the Report should be -considered as binding and that the ambiguous terms concerned should have -a determinate meaning. In such cases ratification does not introduce an -amendment or an alteration, but only fixes the meaning of otherwise -doubtful terms and clauses of the treaty. - -[Sidenote: Effect of Ratification.] - -§ 518. The effect of ratification is the binding force of the treaty. -But the question arises whether the effect of ratification is -retroactive, so that a treaty appears to be binding from the date when -it is duly signed by the representatives. No unanimity exists among -publicists as regards this question. As in all important cases treaties -themselves stipulate the date from which they are to take effect, the -question is chiefly of theoretical interest. The fact that ratification -imparts the binding force to a treaty seems to indicate that -ratification has regularly no retroactive effect. Different, however, is -of course the case in which the contrary is expressly stipulated in the -very treaty, and, again, the case when a treaty contains such -stipulations as shall at once be executed, without waiting for the -necessary ratification. Be this as it may, ratification makes a treaty -binding only if the original consent was not given in error or under a -delusion.[883] If, however, the ratifying State discovers such error or -delusion and ratifies the treaty nevertheless, such ratification makes -the treaty binding. And the same is valid as regards a ratification -given to a treaty although the ratifying State knows that its -representatives have exceeded their powers by concluding the treaty. - -[Footnote 883: See above, § 500.] - - -VI - -EFFECT OF TREATIES - - Hall, § 114--Lawrence, § 134--Halleck, I. pp. 279-281--Taylor, §§ - 370-373--Wharton, II. § 137--Wheaton, § 266--Bluntschli, §§ - 415-416--Hartmann, § 49--Heffter, § 94--Bonfils, Nos. - 845-848--Despagnet, Nos. 447-448--Pradier-Fodéré, II. Nos. - 1151-1155--Mérignhac, II. pp. 667-672--Rivier, II. pp. - 119-122--Calvo, III. §§ 1643-1648--Fiore, II. Nos. 1008-1009, and - Code, Nos. 768-778--Martens, I. §§ 65 and 114--Nippold, op. cit. - pp. 151-160. - -[Sidenote: Effect of Treaties upon Contracting Parties.] - -§ 519. By a treaty the contracting parties in the first place are -concerned. The effect of the treaty upon them is that they are bound by -its stipulations, and that they must execute it in all its parts. No -distinction should be made between more and less important parts of a -treaty as regards its execution. Whatever may be the importance or the -insignificance of a part of a treaty, it must be executed with good -faith, for the binding force of a treaty covers equally all its parts -and stipulations. If, however, a party to a treaty concluded between -more than two parties signs it with a reservation as regards certain -articles, such party is not bound by these articles, although it -ratifies[884] the treaty. - -[Footnote 884: See above, § 518.] - -[Sidenote: Effect of Treaties upon the Subjects of the Parties.] - -§ 520. It must be specially observed that the binding force of a treaty -concerns the contracting States only, and not their subjects. As -International Law is a law between States only and exclusively, treaties -can have effect upon States and can bind States only and exclusively. If -treaties contain stipulations with regard to rights and duties of the -contracting States' subjects,[885] courts, officials, and the like, -these States have to take such steps as are necessary, according to -their Municipal Law, to make these stipulations binding upon their -subjects, courts, officials, and the like. It may be that according to -the Municipal Laws of some countries the official publication of a -treaty concluded by the Government is sufficient for this purpose, but -in other countries other steps are necessary, such as, for example, -special statutes to be passed by the respective Parliaments.[886] - -[Footnote 885: See above, § 289.] - -[Footnote 886: The distinction between International and Municipal Law -as discussed above, §§ 20-25, is the basis from which the question must -be decided whether international treaties have a direct effect upon the -officials and subjects of the contracting parties.] - -[Sidenote: Effect of Changes in Government upon Treaties.] - -§ 521. As treaties are binding upon the contracting States, changes in -the government or even in the form of government of one of the parties -can as a rule have no influence whatever upon the binding force of -treaties. Thus, for instance, a treaty of alliance concluded by a State -with constitutional government remains valid, although the Ministry may -change. And no head of a State can shirk the obligations of a treaty -concluded by his State under the government of his predecessor. Even -when a monarchy turns into a republic, or _vice versa_, treaty -obligations regularly remain the same. For all such changes and -alterations, important as they may be, do not alter the person of the -State which concluded the treaty. If, however, a treaty stipulation -essentially presupposes a certain form of government, then a change from -such form makes such stipulation void, because its execution has become -impossible.[887] - -[Footnote 887: See below, § 542. Not to be confounded with the effect of -changes in government is the effect of a change in international status -upon treaties, as, for instance, if a hitherto full-sovereign State -becomes half- or part-Sovereign, or _vice versa_, or if a State merges -entirely into another, and the like. This is a case of succession of -States which has been discussed above, §§ 82-84; see also below, § 548.] - -[Sidenote: Effect of Treaties upon third States.] - -§ 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_.] - -[Sidenote: Pharmacopoeia.] - -§ 591. On November 29, 1906, Great Britain, Germany, Austria-Hungary, -Belgium, Bulgaria, Denmark, Spain, the United States of America, France, -Greece, Italy, Luxemburg, Norway, Holland, Russia, Servia, Sweden, and -Switzerland signed at Brussels an agreement concerning the Unification -of the Pharmacopoeial Formulas for Potent Drugs.[1006] - -[Footnote 1006: See Martens, N.R.G. 3rd Ser. I. p. 592, and Treaty -Series, 1907, No. 1.] - -[Sidenote: Humanity.] - -§ 592. In the interest of humanity two Unions--although the term "Union" -is not made use of in the treaties--are in existence, namely, that -concerning Slave Trade and that concerning the so-called White Slave -Traffic. - -(1) A treaty concerning slave trade[1007] was already in 1841 concluded -between Great Britain, Austria, France, Prussia, and Russia. And article -9 of the General Act of the Berlin Congo Conference of 1885 likewise -dealt with the matter. But it was not until 1890 that a Union for the -suppression of the slave trade came into existence. This Union was -established by the General Act[1008] of the Brussels Conference, signed -on July 2, 1890, and possesses two International Offices,[1009] namely, -the International Maritime Office at Zanzibar and the Bureau Spécial -attached to the Foreign Office at Brussels. The signatory Powers -are:--Great Britain, Austria-Hungary, Belgium, Congo Free State, -Denmark, France, Germany, Holland, Italy, Persia, Portugal, Russia, -Spain, Sweden-Norway, the United States of America, Turkey, and -Zanzibar. Liberia acceded later. - -[Footnote 1007: See above, § 292, p. 368, note 2.] - -[Footnote 1008: See Martens, N.R.G. 2nd Ser. XVI. p. 3.] - -[Footnote 1009: See above, § 468.] - -(2) On May 18, 1904, an Agreement for the Suppression of the White -Slave Traffic[1010] was signed at Paris by Great Britain, Germany, -Belgium, Denmark, Spain, France, Italy, Holland, Portugal, Russia, -Sweden-Norway, and Switzerland. Brazil and Luxemburg acceded later. A -further Agreement concerning the subject was signed at Paris on May 4, -1910, by thirteen States, but has not yet been ratified. - -[Footnote 1010: See Martens, N.R.G. 2nd Ser. XXXII. p. 160, and Treaty -Series, 1905, No. 24--See also Butz, "Die Bekämpfung des Mädchenhandels -im internationalen Recht" (1908); Rehm in Z.V. I. (1907), pp. 446-453.] - -[Sidenote: Preservation of Animal World.] - -§ 593. Two general treaties are in existence for the purpose of -preserving certain animals in certain parts of the world:-- - -(1) In behalf of the preservation of wild animals, birds, and fish in -Africa, the Convention of London[1011] was signed on May 19, 1900, by -Great Britain, the Congo Free State, France, Germany, Italy, Portugal, -and Spain; Liberia acceded later. However, this convention has not yet -been ratified. - -[Footnote 1011: See Martens, N.R.G. 2nd Ser. XXX. p. 430.] - -(2) In behalf of the prevention of the extinction of the seals in the -Behring Sea, the Pelagic Sealing Convention[1012] of Washington was -signed on July 7, 1911, by Great Britain, the United States of America, -Japan, and Russia, but has not yet been ratified. - -[Footnote 1012: See above, § 284.] - -[Sidenote: Private International Law.] - -§ 594. Various general treaties have been concluded for the purpose of -establishing uniform rules concerning subjects of the so-called Private -International Law:-- - -(1) Already on November 14, 1896, a general treaty concerning the -conflict of laws relative to procedure in civil cases was concluded at -the Hague. But this treaty was replaced by the Convention[1013] of the -Hague of July 17, 1905, which is signed by Germany, Austria-Hungary, -Belgium, Denmark, Spain, France, Italy, Luxemburg, Norway, Holland, -Portugal, Roumania, Russia, Sweden, and Switzerland. - -[Footnote 1013: See Martens, N.R.G. 3rd Ser. II. p. 243.] - -(2) On June 12, 1902, likewise at the Hague, were signed three -conventions[1014] for the purpose of regulating the conflict of laws -concerning marriage, divorce, and guardianship. The signatory Powers are -Germany, Austria-Hungary, Belgium, Spain, France, Italy, Luxemburg, -Holland, Portugal, Roumania, Sweden, and Switzerland. - -[Footnote 1014: See Martens, N.R.G. 2nd Ser. XXXI. pp. 706, 715, 724.] - -(3) Again at the Hague, on July 17, 1905, were signed two conventions -for the purpose of regulating the conflict of laws concerning the effect -of marriage upon the personal relations and the property of husband and -wife, and concerning the placing of adults under guardians or curators. -The signatory Powers are Germany, France, Italy, Holland, Portugal, -Roumania, and Sweden.[1015] - -[Footnote 1015: Meili and Mamelok, "Das internationale Privat und -Zivilprozessrecht auf Grund der Haager Konventionen" (1911), offers a -digest of all the Hague Conventions concerned.] - -[Sidenote: American Republics.] - -§ 595. The first Pan-American Conference held at Washington in 1889 -created the International Union of the American Republics for prompt -collection and distribution of commercial information.[1016] This Union -of the twenty-one independent States of America established an -International Office at Washington, called at first "The American -International Bureau," but the fourth Pan-American Conference, held at -Buenos Ayres in 1910, changed the name of the Office[1017] to "The -Pan-American Union." At the same time this conference considerably -extended[1018] the scope of the task of this Bureau to include, besides -other objects, the function of a permanent commission of the -Pan-American Conferences which has to keep the archives, to assist in -obtaining the ratification of the resolutions and conventions adopted, -to study or initiate projects to be included in the programme of the -conferences, to communicate them to the several Governments, and to -formulate the programme and regulations of each successive conference. - -[Footnote 1016: See Barrett, "The Pan-American Union" (1911).] - -[Footnote 1017: See above, § 467_a_.] - -[Footnote 1018: See Reinsch, "Public International Unions" (1911), p. -117.] - -[Sidenote: Science.] - -§ 596. In the interest of scientific research the following Unions[1019] -have been established:-- - -[Footnote 1019: The conventions which have created these Unions would -seem to be nowhere officially published and are, therefore, not to be -found in the Treaty Series or in Martens. The dates and facts mentioned -in the text are based on private and such information as can be gathered -from the _Annuaire de la Vie Internationale_, 1908-1909, pp. 389-401.] - -(1) On October 30, 1886, Great Britain, Germany, Argentina, -Austria-Hungary, Belgium, Denmark, Spain, the United States of America, -France, Greece, Italy, Japan, Mexico, Norway, Holland, Portugal, -Roumania, Russia, Sweden, and Switzerland signed a convention at Berlin -for the purpose of creating an International Geodetic Association. -Already in 1864 a number of States had entered at Berlin into an -Association concerning geodetic work in Central Europe, and in 1867 the -scope of the association was expanded to the whole of Europe, but it was -not until 1886 that the geodetic work of the whole world was made the -object of the Geodetic Association. The convention of 1886, however, was -revised and a new convention was signed at Berlin on October 11, -1895.[1020] The Association, which arranges an international conference -every three years, possesses a Central Office at Berlin. - -[Footnote 1020: For the text of this Convention, see _Annuaire de la Vie -Internationale_, 1908-1909, p. 390.] - -(2) On July 28, 1903, was signed at Strasburg a convention for the -purpose of creating an International Seismologic Association. This -convention was revised on August 15, 1905, at Berlin.[1021] The -following States are parties:--Great Britain, Germany, Austria-Hungary, -Belgium, Bulgaria, Canada, Chili, Spain, the United States of America, -France, Greece, Italy, Japan, Mexico, Norway, Holland, Portugal, -Roumania, Russia, Servia, and Switzerland. The Association, which -arranges an international conference at least once in every four years, -has a Central Office at Strasburg. - -[Footnote 1021: The text of this Convention is not published in the -_Annuaire de la Vie Internationale_, 1908-1909, but its predecessor of -1903 is published there on p. 393.] - -(3) On May 11, 1901, a convention was signed at Christiania for the -International Hydrographic and Biologic Investigation of the North -Sea.[1022] The parties are Great Britain, Germany, Belgium, Denmark, -Holland, Norway, Russia, and Sweden. The Association possesses a Central -Office. - -[Footnote 1022: For the text of this Convention, see _Annuaire de la Vie -Internationale_, 1908-1909, p. 397.] - - - - -INDEX - - -A - - Abandoned river-beds, 302 - Abdicated monarchs, 432 - Absorption of a State, 127 - Abuse of flag, 336 - Abyssinia, independence of, 76, 145, 147, 156, 164 - Accession to treaties, 568 - Accretion of territory: - abandoned river-beds, 302 - alluvions, 300 - artificial formations, 299 - conception of, 299 - deltas, 300 - different kinds of, 299 - new-born islands, 301 - Acosta, 97 - Acquisition of territory, 281-284 - Acquisition of territory by individuals and corporations, 282 - Acts, 551 - Adhesion to treaties, 569 - Administration of territory by a foreign Power, 232 - Aegi, case of, 496 - Africa: - notification of future occupations on the coast of, 294, 590 - preservation of wild animals in, 623 - African states, 164, 165 - Agadir, German action at, 76 - Agent consular, 486 - Agents lacking diplomatic or consular character, 509 - _Agents provocateurs_, 510 - Agricultural Institute, International, 518, 617 - Agriculture, Convention for preservation of birds useful to, 618 - Aix-la-Chapelle: - Congress of (1818), 67, 444, 566, 588 - Peace treaty of (1668), 62; - (1748), 64 - Aland Islands, 277, 564 - Alaska boundary dispute, 272, 320 - Alcazar, case of, 220 - Alcorta, 97 - Alexander II. of Russia, assassination of, 416, 418, 420 - Alexander VI., Pope, 316 - Alexandria, International Court of appeal at, 499 - Algeciras, International Conference of, 75, 156 - Algeria, trade between France and, 608 - Aliens Act, the, 391 - Aliens: - Act for the registration of, 398 - expulsion of, 399-403 - how far they can be treated according to discretion, 397 - in Eastern countries, 395 - protection to be afforded to, 397 - reception of, 390 - reconduction of, 402 - right of asylum of, 392 - subjected to territorial supremacy, 393 - their departure from the foreign country, 398 - under protection of their home State, 395 - Alliances: - _casus foederis_, 599 - conception of, 595 - conditions of, 598 - different kinds of, 597 - parties to, 597 - Alluvion, 300 - Alsace, 279, 291 - "Alternat" clause, the, 173 - Amakouron, river, 242 - Ambassadors, 57, 444. _See also_ Diplomatic envoys. - Ambrose Light, case of the, 342 - Amelia Island, case of the, 186 - American International Bureau, 517, 624 - American Civil War, 70 - Amos, Sheldon, 94 - Andorra, international position of, 146 - Anglo-French Agreement (1904), 278, 539 - Anglo-Japanese Alliance, text of, 596 - Anna, case of the, 301 - Annexation, 303 - Anti-Slavery Conference at Brussels, 368, 517, 560 - Antivari, port of, 327 - Antoninus Pius, 315 - Anzilotti, 104 - _Apocrisiarii_, 437 - Aral, Sea of, 245, 321 - Arbitration: - International Court of, 79, 274, 278, 372, 410, 503 - Permanent Court of, suggested in 1306 by Pierre Dubois, 58 - Tribunal at Paris (1893), 352 - Armed forces on foreign territory, 500. _See also_ Jurisdiction. - Armed neutrality, first (1780), 64 - Army of Occupation, jurisdiction of, 503 - Art, Union for the protection of works of, 516, 615 - Artificial boundaries, 270 - Artificial formation of territory, 299 - Asiatic States, 164, 165 - Asylum of criminals: - in foreign countries, 392 - in hôtels of diplomatic envoys, 461 - in men-of-war and other public vessels abroad, 507 - Atmosphere, territorial, 236 - Attachés of Legation, 472 - Attentat clause, the Belgian, 416, 421 - _Aubaine, droit d'_, 398 - Aubespine, case of L', 459 - Austin, 5, 98 - Austria-Hungary as a real union, 134 - Authentic interpretation, 582 - Aviation, 236 - _Avulsio_, 300 - Awards of the Court of Arbitration, 521 - Ayala, 84 - Azoff, Sea of, 321 - Azuni, 320 - - -B - - Baker, Sir Sherston, 94 - Balance of power, 62, 65, 80, 193, 289, 307 - Baltic, the, 248, 267 - maintenance of status quo in the, 604 - Bancroft treaties, 389 - Barbeyrac, 90 - Barents Sea, 266 - Barima, river, 242 - Bass, case of De, 459 - Batoum, 539, 575, 579 - Bavaria sends and receives diplomatic envoys, 441 - Bay: - of Cancale, 262 - of Chesapeake, 262, 263 - of Conception, 262, 263 - of Delaware, 262, 263 - of Stettin, 263 - Bays, 262 - Bearers of despatches, 511, 512 - Beckert, case of, 474 - Behring Sea Award Act (1894), 352 - Behring Sea conflict between Great Britain and United States, - 320, 351 - Belgium, independence of, 68, 312 - neutralisation of, 152, 588 - Belle-Isle, case of Maréchal de, 471 - Belli, 84 - Bello, 97 - Bentham, 4, 88 - Berlin: - Congo Conference of (1884-85), 72, 153, 368, 514, 537, 590, 605 - Congress of (1878), 71, 118, 272, 368, 514 - Decrees of, 65 - Treaty of (1878), 71, 76, 327, 364, 369, 387, 575, 576, 579, 590 - Bernard, 102 - Berne Convention, 615 - Bill of lading, 331 - Binding force of treaties, 541, 545, 546 - Biologic investigation of the North Sea, 626 - Birds: - in Africa, preservation of, 623 - useful to agriculture, Convention for the preservation of, 618 - Birkenfeld, 230 - Birth, acquisition of nationality by, 375 - Black Sea, 247, 268, 269, 321 - neutralisation of, 70, 325, 575 - Blockade, 63, 335, 538, 588 - of Venezuela, 74 - Bluntschli, 36, 96, 99 - Bodin, 111, 112 - Bombardments, convention concerning, 594 - Bon, 96 - Bonfils, 95, 100 - Bornemann, 97 - Bosnia and Herzegovina, international position of, 77, 233, 576 - Bosphorus and Dardanelles, 247, 266, 267, 268, 321 - Boundaries of State territory, 270-273 - Boundary: - Commissions, 272 - dispute, 272, 296 - mountains, 272 - waters, 270 - Boundary dispute: - between Great Britain and Venezuela, 198, 242 - Louisiana, 295 - Oregon, 295 - Boundary treaty: - between Great Britain and the United States, 272 - of Buenos Ayres (1881) between Argentina and Chili, 267, 564, - 592 - Bounties on sugar, Convention concerning, 515, 617 - Brazil, international position of, 72, 312 - Bristol Channel, 266 - British seas, 317 - Brooke, Sir James, Sovereign of Sarawak, 282 - Brunus, 84 - Brussels: - Anti-Slavery Conference of, 368, 517, 560, 591 - Conference of (1874), 71, 552 - Convention concerning sugar, 515, 617 - Bry, 95 - Buddhist States, 30, 154 - Buenos Ayres, Boundary treaty of (1881), between - Argentina and Chili, 267, 564, 592 - Buffer States, 148 - Bulgaria: - a party to the Hague Peace Conferences, 534 - international position of, 71, 183, 576 - _Bulletin des Douanes_, 517 - Bulmerincq, 96, 100 - Bumboats in the North Sea, 338, 351 - _Bundesrath_, the, 433, 516, 546 - _Bundesgericht_, the, 417 - Burlamaqui, 90 - Burroughs, Sir John, 319 - Bynkershoek, 91, 320 - - -C - - Cabotage, 258, 606 - Calhoun, 115 - Callao, revolutionary outbreak at, 342 - Calvo, 97, 99 - Campos, 97 - Canals, 248-254 - Cancale, bay of, 262 - Cancellation of treaties on account of: - subsequent change of status of a party, 579 - their inconsistency with subsequent rules of International Law, - 578 - their violation by one of the parties, 579 - war, 580 - Canning, case of George, 532 - Canning, case of Sir Stratford, 451 - Canonists, 55 - Canon Law, 8 - Cape Breton Island, restitution of, to France, 566 - Capitulations, 395, 482, 497 - Capture in maritime war, Convention concerning, 594 - Carlowitz, Peace Treaty of, 63 - Carnazza-Amari, 96 - Carnot, assassination of, 418, 420 - Caroline, case of the, 187, 501 - Caroline Islands, sold by Spain to Germany, 288 - Carthagena, rebel men-of-war at, 342 - Casa Blanca incident, the, 502 - Casanova, 96 - Caspian Sea, 246 - Castione, case of, 415 - Castlereagh, Lord, 412 - _Casus foederis_, 599 - Cavour, Count, 426 - Cellamare, case of Prince, 459 - Celsus, 315 - Central American Court of Justice, 525 - Ceremonials, maritime. _See_ Maritime ceremonials. - Certificate of registry, 331 - Cession of territory, 285-291 - acquisition of nationality through, 289, 377 - Ceylon, pearl fishery off the coast of, 348 - Chablais and Faucigny, 279, 286 - Chalmers, 103 - Chambers of Reunion (1680-1683), 62 - Changes in the condition of States, 121-125 - Channel: - Bristol, 266 - North, 266 - St. George's, 266 - Channel tunnel, proposed, 359 - _Chapelle, droit de_, 467 - _Chargés d'Affaires_, 445-481. _See also_ Diplomatic envoys. - _Chargés des Affaires_, 445 - Charkieh, case of the, 507 - Charles I., 319 - Charlton, case of Porter, 408 - Charter-party, 332 - Chesapeake, Bay of, 262, 263 - China, international position of, 164 - China and Japan, war between, 72 - Cholera. _See_ Sanitary Conventions. - Christiania, Treaty of, 75, 135 - Christina, Queen of Sweden, 431 - "Citizen" and "subject" of a State synonymous in - International Law, 370 - Civilians, the, 55 - Clayton-Bulwer Treaty, 251 - Coasting trade, 258, 606 - Code of signals, International, 333 - Codification of International Law, 35 - Collective guarantee, treaties of, 601 - Collision at sea, 334 - Colonial States cannot be parties to international - negotiation, 530 - Colonies rank as territory of the motherland, 231 - Comity of Nations, 24, 261 - Commercial Code of Signals, 333, 334 - Commissaries, 511 - Commissions, International, 512-515 - in the interest of: - fisheries, 513 - foreign creditors, 515 - navigation, 513 - sanitation, 515 - sugar, 515 - Common Consent, 16 - Como, Lake of, 245 - Composite International Persons, 132-140 - Compromise clause, 583 - Conception, Bay of, 262, 263 - Concert, European, 170 - Concordat, 161 - _Condominium_, 232, 272 - Confederate States, 133, 135 - Conferences. _See_ Congresses. - Congo, river, 242 - Congo Commission, the international, 242 - Congo Conference of Berlin, 72, 368, 514, 537, 590, 605 - Congo Free State: - annexation of, 76 - merged in Belgium, 34, 287 - neutralisation of, 153 - recognition of, 73 - Congresses, international: - cannot be distinguished from Conferences, 533 - conception of, 533 - envoys representing states at, 443, 453 - parties to, 534 - permanent, suggested by Podiebrad, 58 - procedure at, 535 - reception of envoys at, 452 - Conquest, 302. _See also_ Subjugation. - _Conseil sanitaire maritime et quarantenaire_ at - Alexandria, 515 - _Conseil supérieur de santé_ at Constantinople, 515 - _Consolato del mare_, 56 - Constance, Lake of, 246 - Constantinople: - Conference of (1885-6), 71 - Treaty of (1888), 514, 591 - Constitution, case of the, 507 - Constitutional restrictions concerning the treaty-making - power, 545 - Constitutional system, 68 - Consular Act, 484 - Consular districts, 485 - Consul-general, 486 - Consular jurisdiction in non-Christian States, 497 - Consular officers, 485 - Consular service, British, 487 - Consuls: - appointment of, 487-490 - archives of, 495, 496 - consular organisation, 485 - _consules missi and electi_, 485 - consular districts, 485 - different classes of, 486 - functions of, 480, 490-493 - general character of, 484 - informal appointment of, 490 - in non-Christian States, 497 - in the fifteenth century, 483 - no obligation to admit, 488 - non-professional, 495 - position and privileges of, 493-495 - qualification of, 487 - subordinate to diplomatic envoys, 487 - termination of consular office, 496 - the institution of, 482 - _Consuls Marchands_, 482 - Contiguity, right of, 295 - Contraband, 335 - Contract debts, recovery of, 192, 592 - _Conventio omnis intelligitur rebus sic stantibus_, 573 - Convention, 551: - Anglo-French (1904), 278 - concerning matters of international administration, 79 - concerning the North Sea Fisheries, 349 - concerning radiotelegraphy, 236, 355 - for the protection of submarine cables, 354 - Co-operation, 189 - Copenhagen: - Peace Treaty of, 63 - Treaty (1857) abolishing Sound dues, 268 - Copyright: - Union concerning, 615 - Acts concerning, 616 - Corinth Canal, 248 - Corps, diplomatic, 446 - Corsica, pledged by Genoa to France, 233, 288 - Costa Rica Packet, case of the, 217 - Councillors of Legation, 472 - Couriers, 472, 473, 475. _See also_ Retinue of envoy. - Courland merged in Russia, 124, 287 - Court of Arbitration. _See_ Arbitration. - Court of Justice, Central American, 525 - Cracow, republic of, 151, 310 - Creasy, Sir Edward Shepherd, 94 - Crete: - international position of, 72, 144 - possesses no right of legation, 441 - Crews of men-of-war, their position when on land abroad, 508 - Crime: - against the Law of Nations, 209 - extraditable, 408 - political, 415 - Crimean war, 68 - Cromwell, 172, 459 - Crucée, Émeric, 58 - Cruchaga, 97 - Cuba: - independence of, 72, 181 - intervention in, 190 - Cuban debt, 132 - _Culte, droit du_, 467 - Cumberland, Duke of (1837), 433 - Cussy, 102 - Custom, as source of International Law, 16, 22, 23 - Custom tariffs, Union for publication of, 616 - office of the Union for publication of, 517 - Customs Laws Consolidation Act, 608 - Cutting, case of, 205 - Cyprus, international position of, 233 - - -D - - Danish fleet, case of, 186 - Danube, navigation on the, 71, 242 - Danube Commission, 242, 513 - Dardanelles, 247, 266, 267, 268, 321 - Davis, 95 - Dead Sea, 244, 321 - Death: - of consul, 496 - of diplomatic envoy, 480 - De Bass, case of, 459 - Debts to be taken over by the succeeding State, 131, 287 - Declaration: - of Brussels, 37 - of London, 78, 343, 537, 538, 560, 585, 595 - of Paris, 12, 68, 537, 569, 588 - of St. Petersburg, 70, 537, 590 - Declarations, 551 - three kinds of, 536 - _De facto_ subjects, 372 - De Jager _v._ Attorney-General for Natal, 394 - Delagoa Bay, case of, 314 - Delaware, Bay of, 262, 263 - Delinquency, international, 209 - _Délits complexes_, 415 - Delta, 300 - Delusion and error in parties to treaties, 547 - Deniers of the Law of Nations, 89 - Denization, 381, 383 - Denmark, 186 - her sovereignty over the Baltic, 316 - Deposed monarchs, 432 - Deprivation, loss of nationality through, 378 - _De Recuperatione Terre Sancte_, 58 - Derby, Lord, 601 - Dereliction of territory, 313 - Deserters not to be extradited, 409 - Despagnet, 95, 100 - Despatches, sealed, transmission through belligerents' lines, - 471 - Diena, 96 - Dignity of States, 174-177 - Diplomacy, 438 - language of, 439 - Diplomatic corps, 446 - Diplomatic envoys: - appointment of, 446-448 - ceremonial and political, 443 - classes of, 66, 443-481, 588 - death of, 480 - dismissal through delivery of passports, 455, 478 - exempt from criminal and civil jurisdiction, 458, 464 - exempt from police regulations, 466 - exempt from subpoena as witnesses, 465 - exempt from taxes, &c., 467 - exterritoriality of, 460 - family of, 474 - found on enemy territory by a belligerent, 471 - functions of, 453 - immunity of domicile of, 461 - injurious acts of, 215 - interference with affairs of third States by, 472 - interference in internal politics by, not permitted, 455 - inviolability of, 457-466 - official papers of, 447, 458, 478, 480 - persons and qualifications of, 446 - position of, 455 - privileges of, 456 - promotion of, 478 - recall of, 477 - reception of, 449-452 - refusal to receive certain individuals as, 450 - retinue of, 472-475 - request for, and delivery of, passports, 478 - right of chapel of, 467 - self-jurisdiction of, 468 - servants of, 474 - suspension of mission of, 476 - termination of mission of, 476-481 - travelling through third States, 469 - Diplomatic usages, 439 - Discovery, inchoate title of, 294 - Discretion of States: - to admit aliens, 391 - to appoint envoys, 446 - to conclude extradition treaties, 406 - to expel aliens, 400 - to protect their citizens abroad, 396 - to receive and send envoys, 440 - to recognise new heads of States, 426 - Dissolution of treaties: - in contradistinction to fulfilment, 570 - through mutual consent, 571 - through vital change of circumstances, 572 - through withdrawal by notice, 571 - Dogger Bank, case of the, 219 - Domicile: - of envoys abroad, 474 - through naturalisation, 375, 379 - Domin-Petrushévecz, 36 - Doyen of the diplomatic corps, 446 - Drago doctrine, 192 - _Droit_: - _d'aubaine_, 398 - _de chapelle_, 467 - _de convenance_, 184 - _d'enquête_, 336 - _d'étape_, 278 - _de préséance_, 172 - _de recousse_, 347 - _de renvoi_, 402 - _du culte_, 467 - Dubois, case of, 465 - Dubois, Pierre, 58 - Duke of Brunswick _v._ King of Hanover, 433 - Duke of Cumberland, 433 - Dum-dum bullets, 592 - Dumont, 102 - Dunkirk, fortification of, 183, 583 - Duplessix, E., 37 - - -E - - Eastern countries: - Consuls in, 497 - Protection of individuals in, 372, 395 - Effect of treaties: - how affected by changes in government, 562 - upon the parties, 561 - upon the subjects of the parties, 562 - upon third States, 563 - Effective occupation. _See_ Occupation. - Egypt, international position of, 142, 164, 498 - international courts in, 498 - possesses no right of legation, 441 - Elizabeth, Queen, 318, 459 - Emigration, 373 - loss of nationality through, 378 - Emperor William Canal, 248 - Enclosure, 230 - Enemy goods covered by neutral flag, 588 - _Enquête, droit d'_, 336 - Envoys extraordinary, 444, 445 - Equality of States, 20, 168 - Equilibrium, 80. _See also_ Balance of power. - Erie, Lake, 246, 247 - Error and delusion in parties to treaties, 547 - Estate duty, 398 - _Étape, droit d'_, 278 - European Concert, 170 - European Danube Commission, 513 - Exchange, case of the, 507 - Exchange of State territory, 287 - _Exequatur_: - requisite for consuls, 489, 493, 494, 496 - revoked, 426 - Exclusion of aliens in the discretion of every State, 391 - Expiration, loss of nationality through, 378 - Expiration of treaties: - in contradistinction to fulfilment, 570 - through expiration of time, 571 - through resolutive condition, 571 - Explosives, discharge of from balloons prohibited, 39 - Expulsion of aliens: - from Great Britain, 399 - from Switzerland, 399 - how effected, 402 - in the discretion of every State, 400 - just causes of, 400 - Exterritoriality, 460 - of a monarch's retinue abroad, 431 - of consuls in non-Christian States, 497 - of diplomatic envoys and the members of their suite, 460-469 - of monarchs and the members of their suite, 430 - of men-of-war in foreign waters, 506 - of presidents of republics, 434 - of the wife of a monarch, 430, 431 - Extinction of States, 124 - Extraditable crimes, 409 - Extradition: - conception of, 403 - condition of, 409 - effectuation of, 409 - municipal laws concerning, 406 - no obligation to grant, 404 - of deserters, 409 - of political criminals, 409, 411-422 - treaties of, 392 - treaties stipulating, how arisen, 404 - Extradition Acts, British, 406, 409 - - -F - - Family of Nations: - conditions of membership of, 31, 166 - definition of, 11 - position of States in the, 165 - Faröe Island Fisheries, 353 - Fauchille, 95, 103 - Faucigny, 279, 286 - Federal States, 136 - as regards appointment of envoys by, 138, 441 - as regards appointment of consuls by, 489 - as regards conclusion of treaties by, 544 - Federalist, The, 115, 137 - Female consuls, 488 - Female diplomatic envoys, 446 - Ferguson, 97 - _Fetiales_, 51 - Field, 36 - Final Act of a Congress, 536 - Finance Act (1894), 399 - Fiore, 37, 96, 99 - Fisheries: - around the Faröe Islands, 353 - as servitudes, 278 - in gulfs and bays, 265 - in straits, 266 - in the maritime belt, 258 - in the North Sea, 316, 337, 349 - in the Open Sea, 348-353 - in the White Sea, 348 - off the coast of Iceland, 348, 353 - pearl, off Ceylon, 348 - Fishery Commissions, 513 - Fish in Africa, preservation of, 623 - Fitzmaurice, Lord, 262 - Flag: - abuse of, on the part of vessels, 336 - claims of States to maritime, 326 - claims of vessels to sail under a certain, 329 - commercial, 327 - enemy goods covered by neutral, 588 - special, for bumboats, 351 - verification of, 335, 337 - _Force majeure_, 521, 524 - Foreign Jurisdiction Act (1890), 395, 498 - Foreign Offices, 435 - Foreigner. _See_ Alien. - Forerunners of Grotius, 83 - Form of treaties, 550 - France, as an International person, 122 - _Franchise de l'hôtel_, 461 - _du quartier_, 461 - Franconia, case of, 29 - Frankfort: - Peace Treaty of, 290, 291, 606 - subjugation of, 304 - Frederick III., Emperor of Germany, 316 - Frederick William of Brandenburg, 464 - Freedom of action necessary for consent to treaties, 547 - French: - Convention, 35, 65 - Constitution, 412 - Revolution, 65, 98, 411 - Frische Haff, 263 - Fugitive Offenders Act (1881), 406 - Fulfilment of treaties, 570 - Full powers, 447, 544 - Funck-Brentano, 95 - Fundamental rights of States, 165 - - -G - - _Gabella emigrationis_, 398 - Gallatin, case of the coachman of Mr., 474 - Gareis, 96 - General Act of a Congress, 536 - Geneva Convention, 70, 569, 589 - Convention for its adaptation to Naval War, 594 - Geneva, Lake of, 246 - Genoa, her sovereignty over the Ligurian Sea, 316 - Gentilis, 84, 318 - Geodetic Association, International, 625 - Germany, member-States of: - competent to conclude treaties, 544 - recognised as independent, 61, 66 - Ghillany, 102 - Gibraltar, 278 - Good offices, 189, 568 - Gore, American Commissioner, 513 - _Grand_ cabotage, 607 - Great Powers, 3 - hegemony of, 168 - Greece, independence of, 68 - Greeks, their rules for international relations, 49 - Gregoire, Abbé, 35 - Grotians, the, 92 - Grotius, Hugo, 4, 59, 85-88, 283, 318, 438 - Guarantee as a means of securing the performance of treaties, 567 - Guarantee of government or dynasty, 191 - Guarantee, treaties of, 599 - collective, 601 - conception of, 599 - effect of, 600 - pseudo-guarantees, 602-604 - Guébriant, Madame de, 447 - Gulfs, 262 - Gulistan, Treaty of, 246 - Gurney, case of, 473 - Gyllenburg, case of, 459 - - -H - - Haggerty, case of, 489 - Hague: - Convention concerning conversion of merchant ships into war - ships, 505 - Convention (1882), concerning fisheries in the North Sea, 349 - Convention concerning laws and usages of war, 552, 569, 586 - Convention (1887), concerning Liquor Traffic on the North Sea, - 351 - Conventions (1907), 207, 213, 218, 538 - International Court of Arbitration at the, 74, 274, 278, 518 - First Peace Conference at the, 12, 37, 73, 534, 589, 591 - Second Peace Conference at the, 12, 38, 77, 365, 534, 589, 592 - Haiti, 32 - Half-Sovereign States, 141 - cannot send or receive diplomatic envoys, 441 - competent to conclude treaties, 544 - may be parties to international congresses, 534 - Hall, 94, 100 - Halleck, 95, 99 - Hamilton, A., 115 - Hanover: - King of, 433, 450 - subjugation of, 304 - Hanseatic League, 56 - Hartmann, 96, 100 - Havana, Treaty of, 181 - Hay-Pauncefote Treaty, 251, 557, 559, 563, 592 - Hay-Varilla Treaty, 252, 254, 564 - Heads of States, 425-428 - competence of, 427 - honours and privileges of, 428 - injurious acts of, 214 - legitimate, 426, 427 - objects of Law of Nations, 427 - position of, 427 - predicates of, 174 - privileges of, 428 - recognition of new, 425 - usurping, 427 - Health Office, International, 518 - Heffter, 96, 98, 509 - Henry IV. of France, 58 - Herring Fishery (Scotland) Act, 264 - Hertslet, 103 - Herzegovina, international position of, 233, 576 - Hesse-Cassel, subjugation of, 304 - Hinterland, 297 - Hobbes, 4, 89, 112 - Holland, Professor, 85 - Holldack, 104 - Holtzendorff, 96, 100 - Holy Alliance, 66, 68, 196, 413, 544, 596 - Holy Roman Empire, origin of doctrine of servitudes in the, 275 - Holy See, 157-162, 441 - cannot be party to international negotiation, 161, 441 - receives ambassadors of first class, 444 - Hostages as a means of securing the performance of treaties, 566 - Hostilities: - convention relative to the opening of, 593 - convention regarding enemy merchantmen, 593 - Hovering Acts, 261 - Huascar, the, 342 - Hubertsburg, Peace treaty of, 64 - Humanity, Unions in the interest of, 622, 623 - Humbert of Italy, assassination of King, 418, 420 - Hüningen, 279 - Huron, Lake of, 246, 247 - Hutcheson, 90 - Hydrographic investigation of the North Sea, 626 - - -I - - Iceland, fisheries around, 348, 353 - Illegal obligations, 550 - Immoral obligations, 549 - Immunity of domicile, 461, 474 - Independence of States: - consequences of, 178 - definition of, 177 - restrictions upon, 180 - violations of, 179 - Indian vassal States of Great Britain, 142 - Indians, Red, 35 - "Indigenousness," international, 367 - Individuals: - never subjects of International Law, 19, 362 - objects of International Law, 366 - stateless, 366, 387 - _In dubio mitius_, 584 - Industrial property, union for protection of, 616 - office of, 517 - Informing gun, the, 337 - Inquiry, international commissions of, 512 - Institute of International Law, the, 36 - _règlement_ concerning acts of insurgents, 224 - _règlement_ concerning consuls, 494 - _règlement_ concerning men-of-war in foreign ports, 508 - _règlement_ concerning utilisation of flow of rivers, 243 - rules concerning aliens, 391, 401 - rules concerning double and absent nationality, 390 - rules concerning extradition, 410, 417 - rules concerning immunities of diplomatic envoys, 450, 457 - _voeux_ concerning emigrants, 374 - Instructions of diplomatic envoys, 448 - Insurgents and rioters, 223 - Insurgents recognised as a belligerent Power, 107, 119 - do not possess the right of legation, 442 - _règlement_ of the Institute of International Law concerning - acts of, 224 - send public political agents, 509 - Integrate territory, 230 - Intercession, 189 - Intercourse of States, 199-201, 328 - International bureau of the International Court of - Arbitration, 516, 519 - International Code of Signals, 333 - International Commission concerning sugar, 515 - International Commission of the Congo, 514 - International Commission of the proposed Channel Tunnel, - memorandum respecting, 359 - International Commissions, 512 - in the interest of foreign creditors, 515 - of Inquiry, 512 - International Council of Sanitation at Bucharest, 515 - International Court of Arbitration at the Hague: - Awards of, 521 - Bureau of, 519 - deciding Tribunal of, 520 - Permanent Council of, 518 - International Court of Justice, proposed, 524 - International Courts in Egypt, 498 - International crimes, 209 - International delinquencies, 209 - International disputes, convention for the settlement of, 592 - International Health Office, 518 - International Jurists, schools of, 82, 89 - International Law: - basis of, 15 - basis of international relations, 67 - codification of, 35 - definition of, 3 - development of, 45, 59 - dominion of, 30 - factors influencing the growth of, 24 - legal force of, 4 - periodicals relating to, 103, 104 - relations between International Law and Municipal Law, 25 - sources of, 20 - States as subjects of, 19, 107 - International Law Association, the, 37 - International Maritime Committee, conference of (1910), 333, - 339 - International negotiation. _See_ Negotiation. - International offices: - agriculture, 518 - customs tariffs, 517 - health, 518 - industrial property, 517 - maritime office at Zanzibar, 517 - Pan-American Union, 517 - post, 516 - sugar, 517 - telegraphs, 516 - transports, 517 - weights and measures, 516 - works of literature and art, 516 - International personality as a body of qualities, 166 - definition of, 167 - International persons, 107, 121, 125, 132, 154, 162 - International Prize Court, 12, 522 - convention concerning, 594 - International Radiographic Convention, 236, 355 - International Telegraph Union, 614 - International transactions. _See_ Transactions. - Internoscia, Jerome, 37 - Internuncios, 445 - _Interpretatio authentica_, 583 - Interpretation of treaties, 582-586 - Intervention, 81, 188 - admissibility in default of right, 193 - by right, 189 - concerning a treaty concluded by other States, 568 - concerning extradited criminals, 410 - definition of, 188 - for maintaining the balance of power, 193 - in the interest of humanity, 194 - on behalf of citizens abroad, 396 - Ionian Islands, international position of, 146, 286 - Inviolability: - of bearers of despatches, 512 - of commissaries, 511 - of consular buildings, 495 - of consuls in non-Christian States, 497 - of diplomatic envoys, 457-460 - of members of international commissions, 514 - of monarchs abroad, 429 - of presidents of republics, 433, 434 - of public political agents, 510 - Irish Sea, 266 - Isabella, Queen of Spain, 426, 432 - Island, new-born, 301 - Italy as a Great Power, 70, 171 - her "Law of Guaranty" concerning the Pope, 158 - - -J - - Jacquin, case of, 416 - Jade Bay, 263 - James I., 317, 469 - Japan, 33, 72, 171 - and Russia, war between, 74 - conflict with United States concerning Japanese school - children in California, 211 - treaty of alliance with Great Britain, 565 - text of the treaty of alliance, 596 - Jassy, case of the, 507 - Jay, John, 115 - Jay Treaty, article concerning privileges of commissioners, 513 - Jenkins, Sir Leoline, 89 - Jenkinson, 103 - Jews: - not a subject of International Law, 108 - sometime excluded from Gibraltar, 278 - their rules for international relations, 46 - their treatment in Roumania and Russia, 369, 387, 392 - Johann Friederich, case of the, 339 - _Journal Télégraphique_, 516 - _Juges Consuls_, 482 - Jurisdiction, 201-205 - exemption of envoys from, 458, 462-464 - in actions for collision at sea, 334 - in Straits, 266 - of an Army of Occupation, 503 - of monarchs abroad over their retinue, 430 - of States over their citizens in Eastern countries, 395 - on the Open Sea, 203, 329-339 - over armed forces abroad, 501 - over citizens abroad, 202 - over crews of men-of-war when on land abroad, 508 - over foreigners abroad, 204 - over foreign vessels sailing under the flag of a State, 330 - over monarchs as subjects, 433 - over pirates, 345 - within the maritime belt, 260 - _Jus_: - _albinagii_, 398 - _avocandi_, 371 - _fetiale_, 51, 52 - _quarteriorum_, 461 - _repraesentationis omnimodae_, 427 - _sacrale_, 51 - _sanguinis_, 375 - _soli_, 375 - _transitus innoxii_, 470 - - -K - - Kainardgi, Treaty of, 441 - Kalkstein, case of Colonel von, 464 - Kamptz, 103 - Kara Sea, 266 - Kara Straits, 266 - Kardis, Peace Treaty of, 63 - Karlstad, Treaty of, 75 - Katschenowsky, 36 - Kattegat, the, 267 - Keiley, case of, 450 - Kelmis, 232 - Kent, James, 95, 137 - Kertch, Strait of, 267, 321 - Khedive of Egypt, 498 - Kiauchau leased to Germany, 233, 288 - King's Chamber, 263 - Klüber, 95, 98, 103 - Kohler, 104 - Korea: - extinction of treaties of, 128 - merged in Japan, 287 - Koszta, case of Martin, 388 - Kurische Haff, 263 - - -L - - Lado Enclave, leased to Congo Free State, 234 - Laibach, Congress of, 67 - Lakes, 245 - Landlocked seas, 245 - Language of diplomacy, 439 - Law of Guaranty, the Italian, 158 - Law of Nations. _See_ International Law. - Law of Nature, 86 - Law-making treaties, 23, 541, 587-595 - Lawrence, 94, 100 - Lease of territory, 233, 288 - Lebanon, the, 357 - _Le Droit d'Auteur_, 517 - Legation: - combined, 448 - institution of, 435, 438 - members of, 472-475 - papers of the, 478 - right of, 440 - _Legati a latere_ or _de latere_, 444 - _Leges Wisbuenses_, 56 - Legitimacy, doctrine of, 67 - Legnano, 84 - Leibnitz, 102 - _Lèse-majesté_, 413, 415 - Letters: - of credence, 447, 476, 477, 479, 509 - of marque, 341, 342 - of recall, 477 - of recommendation, 509, 510 - _Lettre_: - _de créance_, 447 - _de provision_, 477 - _de récréance_, 477 - Levi, Leone, 37, 94 - Liberia, 32 - Lichtenstein, neither sends nor receives permanent diplomatic - envoys, 449 - Lieber, 36 - Lincoln, assassination of, 418, 420 - Liquor Traffic among North Sea Fishermen, Convention - concerning, 351 - Liszt, 96, 101 - Literature, Union for the protection of works of, 516, 615 - Log-book, 331 - Locke, John, 112 - Lombardy, ceded in 1859 by Austria to France, 288 - Lomonaco, 96 - London: - Conference of (1871), 70, 575 - Convention of (1841), 268 - Convention of (1884), 181 - Convention of (1901), concerning fisheries, 353 - Declaration of, 78, 343, 537, 538, 560, 585, 595 - Declaration of, concerning Egypt and Morocco, 249 - Naval Conference of, 38, 39, 43, 78, 595 - Treaty (1831), 588 - Treaty (1840), 555 - Treaty (1841), 268, 368 - Treaty (1867), 589 - Treaty (1871), 247, 269, 325 - Treaty (1883), 514, 587 - Treaty (1906), 76, 156 - Treaty (1908-9), 38 - Lorenzelli, 160 - Lorimer, James, 94, 100 - Lorraine, 291 - Loss of territory, 311 - Louis XI. of France, 111 - Louisiana boundary dispute, 295 - Louter, De, 97 - _L'Union Postale_, 516 - Luxemburg, neutralisation of, 152, 289, 590 - Lymoon Pass, 266 - - -M - - Macartney _v._ Garbutt, 450, 467 - Mackintosh, Sir James, 412 - McGregor, adventurer, 186 - McLeod, case of, 501 - Madagascar, annexed by France, 147, 539 - Madison, J., 115 - Magellan, Straits of, 267, 564 - Maine, Sir Henry Sumner, 94 - Maine, the river, 241 - Mancini, 36 - Manifest of cargo, 331 - Mankind, rights of, 35, 367 - Manning, 94, 98 - Mardyck, port of, 583 - _Mare clausum_, 318 - _Mare liberum_, 318 - Marini, Antoine, 58 - Marino, international position of San, 146 - Maritime belt, 255-261 - Maritime ceremonials, 176, 258, 317, 326 - Maritime Conference: - of London, 38, 39, 43, 78, 595 - of Washington, 333 - of Brussels, 333, 339 - Maritime Conventions Bill, 333, 339 - Maritime office at Zanzibar, 517 - Marmora Sea, 321 - Martens, Charles de, 92 - Martens, F. von, 97, 100 - Martens, G. F. von, 91, 102, 320 - Mary, Queen, 317 - Matzen, 97 - Maxey, 95, 101 - Means of securing performance of treaties, 565 - guarantee, 567 - hostages, 566 - oaths, 565 - occupation of territory, 566 - pledge, 566 - Measures. _See_ Weights and Measures. - Mediation, 189, 568 - Mediterranean, maintenance of status quo in the, 603 - Mehemet Ali, 555 - Mendoza, Spanish Ambassador, 318 - case of, 459 - Men-of-war: - admittance to maritime belt, 260 - admittance to gulfs, 265 - admittance to straits, 267 - excluded from the Bosphorus, 268 - in foreign waters, 504 - in revolt, 504 - on the Open Sea, 325, 326 - position in foreign waters, 235, 506 - position of crew on land abroad, 508 - proof of character, 505 - powers over merchantmen, 335, 337 - shipwrecked, 504 - Merchantmen. _See_ Merchant ships _and_ Navigation. - Merchant Shipping Act (1873), 333 - Merchant Shipping Act (1894), 330, 331, 332, 333, 337 - Merchant ships, conversion into war ships, 593 - Merger of States, 124, 127, 372 - Mérignhac, 95 - Metternich, Prince, 249 - Metric system, Convention concerning, 619 - Meunier, case of, 415 - Meuse, the, 241 - Mines: - Convention concerning, 593 - in the subsoil of the sea bed, 357 - Ministers Plenipotentiary, 445 - Ministers Resident, 445, 588 - Miruss, 103 - Mixed Commission of the Danube, 514 - Mohammedan States, 30, 154 - Mohl, 103 - Moldavia, 441 - Monaco, international position of, 146 - Monaldeschi, case of, 431 - Monarchs: - acts of violence committed by foreign, 431 - consideration due to, 429 - deposed or abdicated, 432 - exterritoriality of, 430 - in the service of, or subjects of, foreign Powers, 432 - position of wife of, 430, 431 - residence of, 430 - retinue of, abroad, 431 - sovereignty of, 428 - travelling incognito, 431 - Monetary Conventions, 619 - Monetary Conference, International, 619 - Monroe Doctrine, 67, 196 - Montagnini, case of, 160 - Montenegro: - independence of, 71; - restricted, 183 - restricted to a commercial flag only, 327 - Monti, case of Marquis de, 472 - Moore, 95, 101 - Moors in Gibraltar, 278 - Moray Firth, case of the, 264 - Moresnet, 232, 273 - Morocco: - independence of, 75, 156, 164 - protection of natives by foreign Powers, 372 - treaties of (1863 and 1880), 373 - Mortensen _v._ Peters, case of, 264 - Moselle, the river, 241 - Moser, 91 - Most-favoured-nation clause, 563, 585, 606, 610 - Motor vehicles, circulation of, 615 - Motor Car (International Circulation) Act, 615 - Mulhouse merged in 1798 in France, 287 - Municipal Law: - in conflict with treaty obligations, 578 - not identical with law in general, 9, 14 - relations between International and Municipal Law, 25 - respecting offences against foreign States, 222 - Murdered rulers, 418, 420 - Muscat Convention, 373 - Muscat Dhows, case of the, 372 - Muster Roll, 331 - Mutinous crew, 343 - - -N - - Names of vessels, 332, 350 - Napoleon I., 65, 183 - Napoleon III., 416, 470 - Narrow Seas: - sovereignty of Great Britain over the, 266, 316 - Nassau, subjugation of, 304 - National. _See_ Citizen. - Nationality: - absent, 383, 387 - acquisition of, 306, 374 - conception of, 369 - difficulties arising from double and absent nationalities, 388 - double, 383, 384 - function of, 370 - loss of, 377 - principle of, 68, 81 - the link between individuals and International Law, 366 - Natural boundaries, 270 - Natural boundaries _sensu politico_, 273 - Naturalisation Acts, British, 377, 381, 382, 383 - Naturalisation in Great Britain, 382 - Naturalisation: - acquisition of nationality by, 375 - conception of, 379 - conditions of, 380 - loss of nationality through, 378, 381 - object of, 380 - through grant on application, 376 - Naturalists, the, 89 - Naval Conference of London, 38, 39, 43, 78, 595 - Naval war code of the United States, 38 - Navigation: - Commissions in the interest of, 513 - in gulfs and bays, 265 - in straits, 266 - in the Suez Canal, 513, 514 - on rivers, 240-243, 588 - on the Congo, 514 - on the Danube, 513 - on the Open Sea, 319, 324 - supervised by consuls, 491 - through the Straits of Magellan, 267 - within and through the maritime belt, 259, 326 - _See also_ Open Sea. - Navigation Act, 607 - Neckar, river, 241 - Negotiation: - by whom conducted, 531 - conception of, 529 - end and effect of, 532 - envoy's function of, 453 - form of, 531 - parties to, 529 - purpose of, 530 - Negro Republics, 32 - _Nemo plus juris transferre potest, quam ipse habet_, 288 - _Nemo potest exuere patriam_, 381 - _Ne quis invitus civitate mutetur, neve in civitate maneat - invitus_, 381 - Netherlands, revolt of, 312 - Neutralisation of the Black Sea, 575 - Neutralised States, 147-154 - as regards State servitudes, 278 - cannot cede territory without consent of the Powers, 286 - can be parties to defensive alliances, 597 - Neutral Powers in Naval War, Convention concerning the rights - and duties of, 594 - Newfoundland fishery dispute, 278 - New Hebrides, international position of, 232 - Niemeyer, 103 - Niger, river, 242 - Night work of women, Convention for the prohibition of, 618 - Nikitschenhow, case of, 463 - Nillins, case of, 407 - Non-Christian States, 154-156 - Non-extradition: - Attentat clause of, 416, 421 - principle of, 411-422 - rationale for, 418 - Russian proposal concerning, 416, 421 - Swiss solution of, 417, 421 - North Atlantic coast fisheries, case of, 275, 276, 278 - North Channel, 266 - North Pole, 292 - North Sea fisheries, 337, 349 - Convention for the regulation of, 349 - North Sea: - hydrographic and biologic investigation of, 626 - maintenance of status quo in the, 603 - Norway, international position of, 75 - Notarial functions: - of consuls, 492 - of diplomatic envoys, 454 - Notification: - as an international transaction, 537 - of a change in the headship of a State, 425 - of occupation, 294 - Nuncios, 444 - Nymeguen, Treaty of, 62 - Nys, 97, 101, 103 - Nystaedt, Treaty of, 63 - - -O - - Oath as a means of securing performance of treaties, 551, 565 - Observation, envoy's function of, 454, 455 - Occupation of territory, 291-298 - as a means of securing the performance of treaties, 566 - conception of, 291 - extent of, 295 - how affected, 292 - notification of, 294 - object of, 292 - _Office central des transports internationaux_, 517 - Offices, international, 515-518 - Official publications, 620 - Oléron, Laws of, 56 - Oliva, Peace Treaty of, 63 - Olivart, Marquis de, 97, 103 - _Omnia rex imperio possidet, singuli dominio_, 283 - Ompteda, 103 - Ontario, Lake of, 246, 247 - Open Sea, 315 - ceremonials on, 326 - claims to sovereignty over parts of, 316 - collisions on, 333 - conception of, 321 - fisheries in the, 348-353 - freedom of, 201, 323-328 - in time of war, 325 - jurisdiction on, 329-339 - legal order on, 324 - navigation on, 326 - neutralisation of parts, 325 - piracy on, 339-348 - powers of men-of-war over merchantmen on the, 335, 337 - rationale for freedom of, 327 - right of pursuit on, 336 - shipwreck and distress on, 339 - subsoil beneath the sea bed, 292, 357-361 - telegraph cables in, 353-355 - verification of flag on, 337 - wireless telegraphy on the, 355-357 - _See also_ Vessel. - Operation of nature as a mode of losing territory, 312 - Oppenheim, Heinrich Bernard, 96 - Oppenheim, L., 104 - Option: - loss of nationality through, 378 - of inhabitants of ceded territory to - retain their old citizenship, 290 - Orange Free State, 304 - Oregon Boundary dispute, 295 - Ottoman law (1863), concerning protégés, 373 - - -P - - _Pacta sunt servanda_, 573 - _Pacta tertiis nee nocent nec prosunt_, 563 - _Pactum de contrahendo_, 546 - Paladini, case of Salvatore, 408 - Panama: - international position of the Republic, 182, 312 - intervention in, 191 - Panama Canal, 251, 592 - Pan-American Conferences, 72, 405, 517 - Pan-American Union, 517, 624 - Pando, 97 - _Panther_, case of the, 219 - Papal Nuncio. _See_ Nuncio. - Papal States, 157, 450 - _Par in parem non habet imperium_, 169, 430, 460 - Paris: - Convention for the protection of submarine telegraph cables, 354 - Declaration of, 12, 68, 537, 569, 588 - Peace Treaty of (1763), 64, 183, 314 - Peace Treaty of (1856), 68, 190, 247, 268, 277, 325, 514, 549, - 564, 575, 578 - Peace Treaty of (1898), 72 - Parkinson _v._ Potter, 467 - Parlement Belge, case of the, 507 - Parliaments, injurious attitude of, 216 - Participation of third States in treaties: - accession, 568 - adhesion, 569 - good offices and mediation, 568 - intervention, 568 - Parties to treaties, 543-548 - Parts of treaties, 552 - Part-Sovereign States, 441 - Passports: - dismissal of diplomatic envoys through delivery of, 455 - of courier, 475 - of diplomatic envoy, 448 - Passport of vessels, 331 - Peace Conferences at the Hague. _See_ Hague. - Peace Treaty of: - Aix-la-Chapelle (1668), 62 - Aix-la-Chapelle (1748), 64, 183 - Carlowitz, 63 - Christiania, 75 - Copenhagen, 63 - Frankfort, 290, 291, 606 - Hubertsburg, 64 - Kainardgi (1774), 441 - Kardis, 63 - Karlstad, 75, 135 - Munster, 241 - Nymeguen, 62 - Nystaedt, 63 - Oliva, 63 - Paris (1763), 64, 183, 314 - (1856), 68, 190, 247, 268, 277, 325, 514, 549, 564, 575, 578 - (1898), 72 - Prague (1866), 364 - Pyrenees, 62 - Rastadt and Baden, 63 - Roeskild, 63 - Ryswick, 63 - San Stefano, 71, 190, 549 - Seoul, 75 - Shimonoseki, 72 - Tilsit, 183, 186 - Utrecht, 63, 183, 278 - Versailles (1783), 64, 278 - Westminster (1674), 319 - Westphalia, 61, 151, 435, 587 - Pearl fishery off Ceylon and in the Persian Gulf, 348 - Peary, Admiral, 292 - Pelagic Sealing Conference, 352 - Persia, international position of, 164 - Persian Gulf, pearl fishery in the, 348 - _Persona grata_ of diplomatic envoy, 451 - Personal supremacy: - consequences of, 178 - definition of, 177 - restrictions upon, 183 - violations of, 179 - Personal union of States, 133 - Pertille, 96 - _Petit_ cabotage, 607 - Pharmacopoeial formulas, unification of, 622 - Philip II. of Spain, 316 - Philippine Islands, 72 - Phillimore, Sir Robert, 94, 99 - Phosphorus. _See_ White phosphorus. - Phylloxera conventions, 618 - Physically impossible obligations, 549 - Piédelièvre, 95, 100 - Pierantoni, 96 - Pillau, alliance of, 551 - Pinkney, American commissioner, 513 - Piracy, 203, 340-348 - _Pirata non mutat dominium_, 346 - Pirates: - jurisdiction over, 345 - may be pursued into the territorial maritime belt, 346 - Plague. _See_ Sanitary Conventions. - Platen-Hallermund, case of Count, 306 - Plebiscite concerning cession of territory, 289, 364 - Pledge, 233, 288, 566 - _Pleins pouvoirs_, 447 - Podiebrad, 58 - Poelitz, 96 - Poland, 566 - partition of, 151, 310, 370 - Polish revolution (1830), 413 - Political agents: - public, 509 - secret, 510 - spies, 510 - Political crime, conception of, 414-421 - Political criminals, non-extradition of, 411-422 - Pollicitations, 546 - Polson, Archer, 94 - Pope, position of the, 70, 157-162. _See also_ Holy See. - Port Arthur leased to Russia, 233, 288 - Porto Rico, 72 - Portugal: - her claims to parts of the Open Sea, 316 - international position of, 77 - passage of troops through territory of, 280 - republic proclaimed in, 76 - Position: - of armed forces abroad, 501 - of consuls, 493 - of diplomatic envoys, 455 - of diplomatic envoys as regards third States, 469 - Positivists, the, 90, 98 - Postal Union, Universal, 516 - Powers of men-of-war over merchantmen of all nations, 335, 337 - Pradier-Fodéré, 95, 100 - Prague, Peace Treaty of (1866), 364 - Precedence among envoys, 444 - Predicates of heads of States, 174 - Prescription, 308-311 - Presidents of republics: - not sovereigns, 433 - position of, 434 - Private International Law: - conception of, 4 - Hague Conventions concerning, 623, 624 - Privateer, 341, 342 - Privateering abolished by Declaration of Paris, 69, 588 - Privileges of: - consuls, 494 - couriers, 475 - diplomatic envoys, 456 - judges of the Prize Court, 522 - members of legation, 473 - members of the Tribunal of the Court of Arbitration, 521 - Proconsul, 487 - Projectiles, Convention concerning, 594 - Protection, treaties of, 604 - Protection: - envoy's function of, 454 - of citizens abroad, 371, 372, 396, 492 - Protectorate, 144 - Protectorate as precursor of occupation, 296 - Protégés, 371 - Protest as an international transaction, 538 - Protestant States, 449 - Prussia becomes a Great Power, 64 - Pseudo-guarantees, 602 - Publications, official, 620 - Public Health, international office of, 518, 621 - Public political agents, 509 - Pufendorf, 4, 89, 112 - _Punctationes_, 546 - Pursuit into the Open Sea, right of, 336 - Pyrenees, Peace of the, 62 - - -Q - - Quabbe, 604 - _Quidquid est in territorio est etiam de territorio_, 178, 231 - _Qui in territorio meo est, etiam meus subditus est_, 231 - - -R - - Rachel, 90 - Radiotelegraphy, 236 - office of, 516 - on the Open Sea, 355 - Radiotelegraphic Convention, 355 - Union, 614 - Railway transports and freights, Union concerning, 614 - Office of, 517 - Rank of States, 171 - Rastadt and Baden, Peace Treaty of, 63 - Ratification of treaties: - by whom effected, 558 - conception of, 553 - effect of, 561 - form of, 557 - not absolutely necessary, 554 - not to be partial or conditional, 559 - rationale for, 554 - refusal of, 556 - space of time for, 555 - Rationale for the freedom of the Open Sea, 327 - Real Union of States, 123, 131, 134 - _Rebus sic stantibus_, clause of, 280, 573-574 - Recall of diplomatic envoys, 477 - Reception of diplomatic envoys, 449, 451, 452 - Reception of aliens: - may be received conditionally only, 392 - no obligation to receive aliens, 390 - Recognition: - of a change in the form of government, 120 - of a change in the title of a State, 121, 173 - of a new head of a State, 425 - of a State through appointment of consul, 489 - of States, 116-121 - of insurgents as a belligerent Power, 119 - Reconduction of foreigners, 402 - Reconfirmation of treaties, 581 - _Recousse, droit de_, 347 - Red Indians, 35 - Redintegration, acquisition of nationality by, 376 - Redintegration of treaties, 581 - Regents, 432 - Registration of Aliens, Act for the, 398 - Reign of Terror, 412 - Release, loss of nationality through, 378 - Religious disabilities, 364, 368 - in Roumania, 388 - Renewal of treaties, 580 - Renunciation as an international transaction, 539 - Renunciation of a treaty, 571 - _Renvoi, droit de_, 402 - Reprisals, 396 - Republics: - American, 624 - Italian, 438 - Negro, 32 - Presidents of, 433, 434 - Rescission of treaties, 571 - _Res extra commercium_, 323 - Residents, 445 - _Responsales_, 437 - Responsibility of States, 206-225 - for acts of courts of justice, 216 - for acts of diplomatic envoys, 215 - for acts of heads of States, 214 - for acts of insurgents and rioters, 222 - for acts of members of Governments, 215 - for acts of officials and military forces, 218 - for acts of Parliaments, 216 - for acts of private individuals, 221 - _Res transit cum suo onere_, 128, 288 - Retinue of diplomatic envoys, 472-475 - of monarchs abroad, 430 - Retorsion, 391, 396, 400 - Revenue Laws, 261 - Revolt as a mode of losing territory, 312 - Rhine, the river, 241 - Rhodian laws, 56 - Ricci-Busatti, 104 - Right: - of asylum, 392, 461, 462 - of chapel, 467 - of contiguity, 295 - of legation, 440 - of protection over citizens abroad, 395, 400 - of pursuit on the sea, 336 - Right of legation: - by whom exercised, 442 - conception, 440 - not possessed by a revolutionary party recognised as - a belligerent Power, 442 - what States possess the, 441 - Rights of mankind, 35, 367, 369 - Rights of Nations, Declaration of, 35, 65 - Rioters, _règlement_ of the Institute of International Law - concerning Acts of, 224 - Ripperda, case of the Duke of, 461 - Riquelme, 97 - Rivers, 239 - abandoned beds of, 302 - international, 240 - South American, 242 - utilisation of the flow of, 243 - _See also_ Navigation. - Rivier, 97, 101, 103 - Roeskild, Peace Treaty of, 63 - Rolin, 103 - Roman Catholic Church, 8 - Roman Law, 283 - Romans, their rules for international relations, 50 - Rome, Congress at, 613 - Ross, case of Bishop, 443 - Roumania: - Convention of 1877 with Russia, 597 - independence of, 71; - restricted, 183 - treatment of Jews in, 388 - Rousseau, J. J., 113 - Rousset, 102 - Royal honours, States enjoying, 172 - Russian Ambassador, case of, 457 - Rutherford, 90 - Rymer, 102 - Ryswick, Peace Treaty of, 63 - - -S - - Sà, case of Don Pantaleon, 475 - Saalfeld, 96 - Sackville, case of Lord, 455 - St. George's Channel, 266 - St. Lawrence, navigation on the river, 243 - St. Petersburg: - Convention of, 614 - Declaration of, 70, 537, 590 - Sale of State territory, 287 - Salvage, 339 - Samos, international position of, 144 - San Domingo, 32 - San Marino, international position of, 146 - San Stefano, Peace Treaty of, 71, 549, 568 - Sandona, 96 - Sanitary Conventions, 620 - Sanitary laws, 261 - Sanitation, International Council of, at Bucharest, 515 - Santa Lucia, case of, 313 - Sarawak, 282 - Sarpi, Paolo, 319 - Savarkar, case of, 410 - Scheldt, the river, 241 - Schmalz, 95 - Schmauss, 102 - Schnaebélé, case of, 511 - Schools of International Jurists, 82, 89 - Scientific Research, Unions in the interest of, 625, 626 - Scott, James Brown, 104 - Scott, Sir William, 98. _See also_ Lord Stowell. - Sea-brief, 331 - Sea-letter, 331 - Seal fisheries in the Behring Sea, 351, 623 - Sealing Conference, pelagic, 352, 623 - Secret political agents, 510 - Secret protocol, 555 - Secretaries of Legation, 472 - Secretary for Foreign Affairs, 435 - Seismologic Association, International, 625 - Selden, John, 89, 318 - Self-jurisdiction: - of diplomatic envoys, 468 - of monarchs abroad, 429, 430 - Self-preservation, 184-187 - Semi-sovereign. _See_ Half- _and_ Part-Sovereign. - Seneca, 230, 283 - Senigallia, 104 - Seoul, Peace of, 75 - Servia, independence of, 71 - restricted, 183 - Servitudes, 273-281 - _Servitus in faciendo consistere nequit_, 279 - _Servitutes juris gentium naturales_, 274 - _Servitutes juris gentium voluntariae_, 274 - Shenandoah, case of the, 343 - Shimonoseki, Peace Treaty of, 72, 568 - Ship. _See_ Vessel. - Ship-papers, 331, 491 - Shipwreck on the Open Sea, 339 - Siam, international position of, 164 - Slave-trade, 66, 348, 368, 588, 591, 622 - Smith, F. E., 94 - Solent, the, 266 - Solferino, battle of, 544 - Sorel, Albert, 95 - Soudan, international position of, 232 - Soulé, case of, 470 - Sound dues, 267 - Sources of International Law, 20 - South African Republic, 74, 142, 181, 304, 441 - her alliance with the Orange Free State, 597 - Sovereignty: - conception of, 110, 112, 177 - divisibility of sovereignty contested, 110 - history of meaning of sovereignty, 111-115 - in contradistinction to suzerainty, 141 - Sovereignty of monarchs, 428 - Spheres of influence, 297 - Spies, 510 - Spirit-trade in certain parts of Africa, 591 - Spitzbergen, 232 - _Sponsio_, 545 - Springer, case of, 461 - State, conception of, 108 - State property. _See_ State territory. - States: - American, 163 - a product of law, 14 - changes in the conditions of, 121-125 - confederated, 135 - dignity of, 174-177, 456 - equality of, 20, 168 - European, 162 - extinction of, 124 - Federal, 130, 136 - full- and not-full Sovereign, 109 - heads of. _See_ Heads of States. - independence of, 177 - intercourse of, 166, 199-201 - jurisdiction of, 201-205 - neutralised, 147-154 - new-born, 281 - non-Christian, 154, 497 - order of precedence of, 172 - part-Sovereign, 141 - personal supremacy of, 177 - personal union of, 133 - possessing royal honours, 172 - rank of, 171 - real union of, 123, 131, 134 - recognition of, 116-121 - responsibility of, 206-225 - self-preservation of, 184-187 - suzerain, 140, 190 - territorial supremacy of, 177 - titles of, 173 - under protectorate, 144 - vassal, 140 - State servitudes, 273-281 - State territory: - cession of, 285 - definition of, 229 - different kinds of, 230 - different parts of, 235 - dismembered, 230 - importance of, 231 - inalienability of parts of, 238 - integrate, 230 - loss of, 311-314 - modes of acquiring, 281-284 - servitudes on, 273-281 - States under protectorate cannot cede territory without - consent of the superior State, 286 - Status quo: - in the Baltic, 604 - in the Mediterranean, 603 - in the North Sea, 603, 604 - treaties guaranteeing maintenance of, 602-604 - Stettin, Bay of, 263 - Stockton, Capt. C. H., 38 - Stoerk, 103 - Story, 137 - Stowell, Lord, 98, 302 - Straits, 265 - of Kara, 266 - of Kertch, 267 - of Magellan, 267 - of Yugor, 266 - Strupp, 102 - Stuart Pretender, the, 278 - Suarez, 84 - Subject of a State, his position when a diplomatic envoy - of a foreign State, 450 - Subjugation: - conception of, 302 - consequences of, 305 - in contradistinction to occupation, 303 - justification of, 304 - of the whole or of a part of enemy territory, 304 - veto by third Powers, 307 - Subjugation, acquisition of nationality through, 306, 377 - Subsoil, territorial, 235 - beneath the sea bed, 357 - Substitution of one treaty for another, 571 - Substitution, loss of nationality through, 378 - Succession of States, 125-132 - Suez Canal, 249, 514, 591 - Sugar Convention, 617 - Office of, 517 - _Sujets mixtes_, 386 - Sully, 58 - Sully, case of, 468 - Sun Yat Sen, case of, 464 - Suzerainty, conception of, 141 - Sweden, her sovereignty over the Baltic, 316 - Sweden-Norway, Real Union dissolved, 135 - Swiss Confederation reorganised, 61 - Switzerland, neutralisation of, 66, 151, 588 - member-States conclude treaties, 544 - without a maritime flag, 327 - - -T - - _Tabula Amalfitana_, 56 - Taylor, Hannis, 95, 101 - Telegraph cables: - Convention for the protection of, 354 - in the Open Sea, 353 - Telegraph Union, Universal, 516 - Telegraphy, wireless, on the Open Sea, 355 - _Terrae potestas finitur ubi finitur armorum vis_, 257 - Territorial atmosphere, 236 - Territorial supremacy: - consequences of, 178 - definition of, 177 - restrictions upon, 182, 273 - violations of, 179 - Territorial waters, 235 - contrasted with Open Sea, 321 - Territorial Waters Jurisdiction Act, 29, 257, 260, 266 - _Territorium clausum_, 230 - _Territorium dominans_, 276 - _Territorium serviens_, 276 - Territory. _See_ State Territory. - Textor, 90 - Tezkereh, 389 - Thalweg, the, 271 - Tibet, international position of, 164 - Titles of States, 173 - Thomasius, 90 - Toll, maritime, 259 - Tourkmantschai, Treaty of, 246 - Tourville, case of, 407 - Trading Consular Officers, 485 - Tradition of ceded territory, 288 - Transactions: - declarations, 536 - different kinds of, 536 - notifications, 537 - protests, 538 - renunciation, 539 - Traffic on the Open Sea, 333 - Transports, Central Office of International, 517 - Transvaal. _See_ South African Republic. - Trawling in Prohibited Areas Prevention Act, 265 - Treaties: - accession and adhesion to, 568, 569 - binding force of, 541, 545, 546 - cancellation of, 578 - commercial and consular, 488, 605-612 - conception of, 540 - constitutional restrictions concerning the treaty-making - power, 545 - different kinds of, 540 - effect of, 561 - expiration and dissolution of, 570-576 - extradition, 412-422 - form of, 550 - fulfilment of, 570 - interpretation of, 582 - law-making, 23, 541, 587 - lists of, 94, 102 - means of securing performance of, 565 - objects of, 548 - of alliance, 595 - of cession, 290 - of extradition, 404-406 - of guarantee, 599 - of protection, 604 - of subsidy, 598 - _pactum de contrahendo_, 546 - participation of third States in, 567 - parties to, 543, 546-548 - parts of, 552 - pseudo-guarantees, 602 - _punctationes_, 546 - ratification of, 553-561 - reconfirmation of, 581 - redintegration of, 581 - regarding spheres of influence, 297 - renewal of, 580 - sources of International Law, 23 - voidance of, 576 - who can exercise the power of making, 543 - Triepel, 102 - Troppau, Congress of, 67 - Tucker, 95 - Tunis, international position of, 147, 164 - Tunnel, proposed Channel, 359 - Turkey, reception into the Family of Nations through Peace - Treaty of Paris (1856), 32, 69 - Twiss, Sir Travers, 94, 99, 249 - - -U - - Ullmann, 96, 101 - Ulpianus, 315 - Unions concerning: - Agriculture, 617 - birds useful to agriculture, 618 - Cholera and plague, 620 - Coinage, 619 - Copyright, 615 - Customs tariffs publication, 616 - Geodetic work, 625 - Humanity, 622 - Hydrographic work, 626 - Industrial property, 616 - Literature and Art, 615 - Metric system, the, 619 - Motor Vehicles, 615 - Night work of women, 618 - Official publications, 620 - Pelagic Sealing, 623 - Pharmacopoeial formulas, 622, 623 - Phylloxera epidemics, 618 - Post, 613 - Private International Law, 623 - Public health, 621 - Radiotelegraphy, 614 - Railway transport, 614 - Sanitation, 620 - Science, 625 - Seismology, 625 - Submarine cables, 614 - Sugar, 617 - Telegraphs, 614 - Transport, 614 - White phosphorus, the use of, 618 - White slave traffic, 622, 623 - Wild animals in Africa, 623 - Unions, object of, 612 - United States of America: - become a Great Power, 70, 171, 312 - become a member of Family of Nations, 64 - intervene in the revolt of Cuba, 72 - member-States cannot conclude treaties, 544 - naval war code of, 38 - Universal Postal Union, 613 - Universal Telegraph Union, 614 - Usage, international, in contradistinction to international - custom, 22 - Usurper, 427 - Utrecht, Peace of, 63, 278, 583 - - -V - - Vaderland, case of the, 357 - Vassal States, 140 - cannot be parties to offensive alliances, 142, 597 - cannot cede territory without consent of suzerain, 286 - competent to appoint consuls, 488 - competent to make treaties, 544 - competent to send public political agents, 509 - of Great Britain, Indian, 142 - Vatican, the, 158, 449 - Vattel, 93, 320, 405 - Venezuela, blockade of (1902), 74 - Venice: - ceded by Austria to France, 287 - her sovereignty over the Adriatic Sea, 316 - Verdun, Treaty of, 54 - Verification of flag, 335 - Verona, Congress of, 67 - Versailles, Peace of, 64, 567 - Vessels: - arrest of, 338 - collision of, 333 - distress of, 339, 356 - names of, 332, 350 - papers of, 331 - search of, 338 - territorial quality of, when on the Open Sea, 332 - visit of, 337 - _See also_ Men-of-War. - Veto concerning a cession of territory, 289 - concerning subjugation, 307 - Vexaincourt, case of, 219 - Vice-consul, 486 - Victor Emanuel, King of Italy, 426 - Victoria, 84 - Vienna Congress, 65, 75 - (1815), 241, 280, 444, 587, 588 - Vienna, Treaty of (1878), 364 - Villafranca, Preliminary Peace Treaty of, 544 - Virginius, case of the, 187 - Visit of vessels, 337 - Vital change of circumstances, 573 - Voidance of treaties: - through extinction of object concerned, 577 - through extinction of one of the parties, 576 - through impossibility of execution, 577 - through realisation of purpose, 577 - _Völkerrechts-Indigenat_, 367 - - -W - - Waddington, case of, 475 - Walker, Thomas Alfred, 94, 100 - Wallachia, 441 - War, Convention concerning Laws of, 593 - Convention concerning rights and duties of neutrals in, 593 - Laws of (U.S.A.), 36 - Laws of (U.S.A.) at sea, 38 - Warsaw, non-admittance of consuls to, 488 - Washburne, case of, 471 - Washington: - Boundary Treaty of (1908), 272, 513 - Congress of (1890), 304 - Maritime Conference of (1889), 333 - Pelagic Fishing Conference of, 352 - Treaties (1854) and (1871), concerning navigation on the river - St. Lawrence, 243 - Treaty (1857) concerning the Sound Dues, 268 - Treaty (1901) concerning the Panama Canal, 251 - Treaty (1904), 182 - Waters, territorial. _See_ Territorial waters. - Webster, Mr., U.S.A., Secretary of Foreign Affairs, 502 - Weights and Measures, International Union of, 619 - Office of the Union of, 516 - Wei-Hai-Wei leased to Great Britain, 233, 288 - Welwood, William, 318 - Wenck, 102 - Westlake, 94, 101 - Westminster, Treaty of (1674), 319 - Westphalian Peace, 61, 151, 435, 587 - Wharton, 95, 100 - Wheaton, 95, 98 - White Phosphorus, Convention for the prohibition of the use of, - 618 - White Phosphorus Matches Prohibition Act, 618 - White Sea fisheries, 348 - White slave traffic, 623 - Wild animals, &c., in Africa, preservation of, 623 - Wildman, Richard, 94 - William of Holland, case of King, 432 - Wilson, 95, 101 - Wireless telegraphy, 236 - on the Open Sea, 355 - Wisby, the maritime laws of, 56 - Wismar, pledged by Sweden to Mecklenburg, 233, 288 - Wolff, Christian, 92 - Women. _See_ Night-work of women. - Woolsey, 95, 103 - Wrech, case of Baron de, 465 - - -Y - - Young Turks movement, 76 - Yugor Straits, 266 - - -Z - - Zanzibar, international position of, 147 - Zone for revenue and sanitary laws extended beyond the - maritime belt, 261 - Zouche, 88 - Zuider Zee, 263 - - - - -END OF VOL. 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A Treatise. Volume I (of -2), by Lassa Francis Oppenheim - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: International Law. A Treatise. Volume I (of 2) - Peace. Second Edition - -Author: Lassa Francis Oppenheim - -Release Date: October 16, 2012 [EBook #41046] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK INTERNATIONAL LAW, A TREATISE, VOL I *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive/American -Libraries.) - - - - - - -</pre> - - +<div>*** START OF THE PROJECT GUTENBERG EBOOK 41046 ***</div> <div class="box"> @@ -204,20 +163,20 @@ disturbing the arrangement of topics, these new sections have been inserted between the old ones, and numbered as the sections preceding them, but with the addition of the letters <i>a</i>, <i>b</i>, &c. The more important of these new sections are the following: - § <a href="#Apart_from_navigation178a">178<i>a</i></a> (concerning + § <a href="#Apart_from_navigation178a">178<i>a</i></a> (concerning the Utilisation of<span class="pagenum"><a name="Page_viii" id="Page_viii">[Pg viii]</a></span> the -Flow of Rivers); §§ <a href="#To287a">287<i>a</i></a> and <a href="#To_secure_radio287b">287<i>b</i></a> (concerning Wireless -Telegraphy on the Open Sea); §§ <a href="#The_subsoil287c">287<i>c</i></a> and <a href="#Since_there_is287d">287<i>d</i></a> (concerning Mines and -Tunnels in the Subsoil of the Sea bed); § <a href="#Another_interesting446a">446<i>a</i></a> (concerning the Casa -Blanca incident); §§ <a href="#The_International_Prize476a">476<i>a</i></a> and <a href="#Va476b">476<i>b</i></a> (concerning the International -Prize Court and the suggested International Court of Justice); §§ <a href="#The_Final_Act568a">568<i>a</i></a> +Flow of Rivers); §§ <a href="#To287a">287<i>a</i></a> and <a href="#To_secure_radio287b">287<i>b</i></a> (concerning Wireless +Telegraphy on the Open Sea); §§ <a href="#The_subsoil287c">287<i>c</i></a> and <a href="#Since_there_is287d">287<i>d</i></a> (concerning Mines and +Tunnels in the Subsoil of the Sea bed); § <a href="#Another_interesting446a">446<i>a</i></a> (concerning the Casa +Blanca incident); §§ <a href="#The_International_Prize476a">476<i>a</i></a> and <a href="#Va476b">476<i>b</i></a> (concerning the International +Prize Court and the suggested International Court of Justice); §§ <a href="#The_Final_Act568a">568<i>a</i></a> and <a href="#The_Declaration568b">568<i>b</i></a> (concerning the Conventions of the Second Hague Peace -Conference, and the Declaration of London); § <a href="#Different_from_real576a">576<i>a</i></a> (concerning +Conference, and the Declaration of London); § <a href="#Different_from_real576a">576<i>a</i></a> (concerning Pseudo-Guarantees). Only towards the end of the volume has this mode of dealing with the new topics been departed from. As the chapter treating of Unions, the last of the volume, had to be entirely rearranged and rewritten, and a new chapter on Commercial Treaties inserted, the old -arrangement comes to an end with § <a href="#Different_from_guarantee577">577</a>; and §§ <a href="#Commercial_treaties578">578</a> to <a href="#In_the_interest_of596">596</a> of this new +arrangement comes to an end with § <a href="#Different_from_guarantee577">577</a>; and §§ <a href="#Commercial_treaties578">578</a> to <a href="#In_the_interest_of596">596</a> of this new edition present an arrangement of topics which differs from that of the former edition.</p> @@ -292,14 +251,14 @@ form, as follows:—</p> <p class="indh">Annuaire = Annuaire de l'Institut de Droit International.</p> -<p class="indh">Bluntschli = Bluntschli, Das moderne Völkerrecht der +<p class="indh">Bluntschli = Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt, 3rd ed. (1878).</p> <p class="indh">Bonfils = Bonfils, Manuel De Droit International Public, 5th ed. by Fauchille (1908).</p> -<p class="indh">Bulmerincq = Bulmerincq, Das Völkerrecht (1887).</p> +<p class="indh">Bulmerincq = Bulmerincq, Das Völkerrecht (1887).</p> <p class="indh">Calvo = Calvo, Le Droit International etc., 5th ed. 6 vols. (1896).</p> @@ -311,14 +270,14 @@ Public, 4th ed. by de Boeck (1910).</p> (1872).</p> <p class="indh">Fiore = Fiore, Nouveau Droit International Public, -deuxième édition, traduite de l'Italien et -annotée par Antoine, 3 vols. (1885).</p> +deuxième édition, traduite de l'Italien et +annotée par Antoine, 3 vols. (1885).</p> -<p class="indh">Fiore, Code = Fiore, Le Droit International Codifié, nouvelle -édition, traduite de l'Italien par +<p class="indh">Fiore, Code = Fiore, Le Droit International Codifié, nouvelle +édition, traduite de l'Italien par Antoine (1911).</p> -<p class="indh">Gareis = Gareis, Institutionen des Völkerrechts, 2nd +<p class="indh">Gareis = Gareis, Institutionen des Völkerrechts, 2nd ed. (1910).</p> <p class="indh">Grotius = Grotius, De Jure Belli ac Pacis (1625).</p> @@ -330,12 +289,12 @@ ed. (1895).</p> by Sir Sherston Baker, 2 vols. (1893).</p> <p class="indh">Hartmann = Hartmann, Institutionen des praktischen -Völkerrechts in Friedenszeiten (1874).<span class="pagenum"><a name="Page_xi" id="Page_xi">[Pg xi]</a></span></p> -<p class="indh">Heffter = Heffter, Das Europäische Völkerrecht der +Völkerrechts in Friedenszeiten (1874).<span class="pagenum"><a name="Page_xi" id="Page_xi">[Pg xi]</a></span></p> +<p class="indh">Heffter = Heffter, Das Europäische Völkerrecht der Gegenwart, 8th ed. by Geffcken (1888).</p> -<p class="indh">Heilborn, System = Heilborn, Das System des Völkerrechts -entwickelt aus den völkerrechtlichen Begriffen (1896).</p> +<p class="indh">Heilborn, System = Heilborn, Das System des Völkerrechts +entwickelt aus den völkerrechtlichen Begriffen (1896).</p> <p class="indh">Holland, Studies = Holland, Studies in International Law (1898).</p> @@ -343,10 +302,10 @@ entwickelt aus den völkerrechtlichen Begriffen (1896).</p> <p class="indh">Holland, Jurisprudence = Holland, The Elements of Jurisprudence, 6th ed. (1893).</p> -<p class="indh">Holtzendorff = Holtzendorff, Handbuch des Völkerrechts, +<p class="indh">Holtzendorff = Holtzendorff, Handbuch des Völkerrechts, 4 vols. (1885-1889).</p> -<p class="indh">Klüber = Klüber, Europäisches Völkerrecht, 2nd ed. +<p class="indh">Klüber = Klüber, Europäisches Völkerrecht, 2nd ed. by Morstadt (1851).</p> <p class="indh">Lawrence = Lawrence, The Principles of International @@ -355,7 +314,7 @@ Law, 4th ed. (1910).</p> <p class="indh">Lawrence, Essays = Lawrence, Essays on some Disputed Questions of Modern International Law (1884).</p> -<p class="indh">Liszt = Liszt, Das Völkerrecht, 6th ed. (1910).</p> +<p class="indh">Liszt = Liszt, Das Völkerrecht, 6th ed. (1910).</p> <p class="indh">Lorimer = Lorimer, The Institutes of International Law, 2 vols. (1883-1884).</p> @@ -365,12 +324,12 @@ Law, 2 vols. (1883-1884).</p> <p class="indh">Manning = Manning, Commentaries on the Law of Nations, new ed. by Sheldon Amos (1875).</p> -<p class="indh">Martens = Martens, Völkerrecht, German translation +<p class="indh">Martens = Martens, Völkerrecht, German translation of the Russian original in 2 vols. (1883).</p> -<p class="indh">Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens -Moderne De L'Europe, nouvelle éd. par -Vergé, 2 vols. (1858)</p> +<p class="indh">Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens +Moderne De L'Europe, nouvelle éd. par +Vergé, 2 vols. (1858)</p> <p class="indh">Martens, R. }</p> <p class="indh">Martens, N.R. } </p> @@ -378,12 +337,12 @@ Vergé, 2 vols. (1858)</p> <p class="indh">Martens, N.R.G. }</p> <p class="indh">Martens, N.R.G. 2nd Ser. }</p> <p class="indh11">Martens. N.R.G. 3rd Ser. } These are the abbreviated quotations of the different -parts of Martens, Recueil de Traités (see p. <a href="#Page_102">102</a> of this volume), which are in common use.</p> +parts of Martens, Recueil de Traités (see p. <a href="#Page_102">102</a> of this volume), which are in common use.</p> -<p class="indh">Martens, Causes Célèbres = Martens, Causes Célèbres Du Droit Des Gens, +<p class="indh">Martens, Causes Célèbres = Martens, Causes Célèbres Du Droit Des Gens, 5 vols., 2nd ed. (1858-1861).</p> -<p class="indh">Mérignhac = Mérignhac, Traité De Droit Public International, +<p class="indh">Mérignhac = Mérignhac, Traité De Droit Public International, vol. i. (1905), vol. ii. (1907).</p> <p class="indh">Moore = Moore, A Digest of International Law, 8 @@ -391,16 +350,16 @@ vols., Washington (1906).</p> <p class="indh">Nys = Nys, Le Droit International, 3 vols. (1904-1906).</p> -<p class="indh">Perels = Perels, Das internationale öffentliche Seerecht +<p class="indh">Perels = Perels, Das internationale öffentliche Seerecht der Gegenwart, 2nd ed. (1903).<span class="pagenum"><a name="Page_xii" id="Page_xii">[Pg xii]</a></span></p> <p class="indh">Phillimore = Phillimore, Commentaries upon International Law, 4 vols. 3rd ed. (1879-1888).</p> -<p class="indh">Piedelièvre = Piedelièvre, Précis De Droit International +<p class="indh">Piedelièvre = Piedelièvre, Précis De Droit International Public, 2 vols. (1894-1895).</p> -<p class="indh">Pradier-Fodéré = Pradier-Fodéré, Traité De Droit International +<p class="indh">Pradier-Fodéré = Pradier-Fodéré, Traité De Droit International Public, 8 vols. (1885-1906).</p> <p class="indh">Pufendorf = Pufendorf, De Jure Naturae et Gentium @@ -409,10 +368,10 @@ Public, 8 vols. (1885-1906).</p> <p class="indh">Rivier = Rivier, Principes Du Droit Des Gens, 2 vols. (1896).</p> -<p class="indh">R.I. = Revue De Droit International Et De Législation -Comparée.</p> +<p class="indh">R.I. = Revue De Droit International Et De Législation +Comparée.</p> -<p class="indh">R.G. = Revue Général De Droit International +<p class="indh">R.G. = Revue Général De Droit International Public.</p> <p class="indh">Taylor = Taylor, A Treatise on International Public @@ -425,10 +384,10 @@ traduction du Portugais par Boutiron <p class="indh">Twiss = Twiss, The Law of Nations, 2 vols., 2nd ed. (1884, 1875).</p> -<p class="indh">Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908).</p> +<p class="indh">Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908).</p> <p class="indh">Vattel = Vattel, Le Droit Des Gens, 4 books in 2 vols., -nouvelle éd. (Neuchâtel, 1773).</p> +nouvelle éd. (Neuchâtel, 1773).</p> <p class="indh">Walker = Walker, A Manual of Public International Law (1895).</p> @@ -450,7 +409,7 @@ of the United States, 3 vols. (1886).</p> <p class="indh">Wheaton = Wheaton, Elements of International Law, 8th American ed. by Dana (1866).</p> -<p class="indh">Z.V. = Zeitschrift für Völkerrecht und Bundesstaatsrecht.<span class="pagenum"><a name="Page_xiii" id="Page_xiii">[Pg xiii]</a></span></p> +<p class="indh">Z.V. = Zeitschrift für Völkerrecht und Bundesstaatsrecht.<span class="pagenum"><a name="Page_xiii" id="Page_xiii">[Pg xiii]</a></span></p> </div> @@ -464,167 +423,167 @@ of the United States, 3 vols. (1886).</p> <div class="box"> -<p class="indh">Aegi, § 437, p. <a href="#Page_496">496</a></p> +<p class="indh">Aegi, § 437, p. <a href="#Page_496">496</a></p> -<p class="indh">Ambrose Light, the, § 273 note 2; § 276, p. <a href="#Page_345">345</a> note 1</p> +<p class="indh">Ambrose Light, the, § 273 note 2; § 276, p. <a href="#Page_345">345</a> note 1</p> -<p class="indh">Amelia Island, § 132, p. <a href="#Page_186">186</a></p> +<p class="indh">Amelia Island, § 132, p. <a href="#Page_186">186</a></p> -<p class="indh">Anderson, John, § 147, p. <a href="#Page_205">205</a> note 1</p> +<p class="indh">Anderson, John, § 147, p. <a href="#Page_205">205</a> note 1</p> -<p class="indh">Anna, the, § 234, p. <a href="#Page_301">301</a></p> +<p class="indh">Anna, the, § 234, p. <a href="#Page_301">301</a></p> -<p class="indh"><a name="Aub" id="Aub"></a>Aubespine, L', § 387, p. <a href="#Page_459">459</a></p> +<p class="indh"><a name="Aub" id="Aub"></a>Aubespine, L', § 387, p. <a href="#Page_459">459</a></p> </div> <div class="box"> -<p class="indh">Bartram <i>v.</i> Robertson, § 580, p. <a href="#Page_611">611</a> note 1</p> +<p class="indh">Bartram <i>v.</i> Robertson, § 580, p. <a href="#Page_611">611</a> note 1</p> -<p class="indh">Bass, de, § 387, p. <a href="#Page_459">459</a></p> +<p class="indh">Bass, de, § 387, p. <a href="#Page_459">459</a></p> -<p class="indh">Beckert, Wilhelm, § 402, p. <a href="#Page_474">474</a></p> +<p class="indh">Beckert, Wilhelm, § 402, p. <a href="#Page_474">474</a></p> -<p class="indh">Belgenland, the, § 265, p. <a href="#Page_335">335</a> note 3</p> +<p class="indh">Belgenland, the, § 265, p. <a href="#Page_335">335</a> note 3</p> -<p class="indh">Belle-Isle, Maréchal de, § 398, p. <a href="#Page_471">471</a></p> +<p class="indh">Belle-Isle, Maréchal de, § 398, p. <a href="#Page_471">471</a></p> -<p class="indh">Boisset, M., § 163, p. <a href="#Page_220">220</a></p> +<p class="indh">Boisset, M., § 163, p. <a href="#Page_220">220</a></p> -<p class="indh">Botiller <i>v.</i> Dominguez, § 546, p. <a href="#Page_578">578</a> note 2</p> +<p class="indh">Botiller <i>v.</i> Dominguez, § 546, p. <a href="#Page_578">578</a> note 2</p> -<p class="indh">Brooke, Sir James, § 209, p. <a href="#Page_282">282</a> note 2</p> +<p class="indh">Brooke, Sir James, § 209, p. <a href="#Page_282">282</a> note 2</p> -<p class="indh">Brunswick, Duke of, <i>v.</i> King of Hanover, § 353, p. <a href="#Page_433">433</a></p> +<p class="indh">Brunswick, Duke of, <i>v.</i> King of Hanover, § 353, p. <a href="#Page_433">433</a></p> </div> <div class="box"> -<p class="indh">Canning, George, and the Russian Ambassador, § 481, p. <a href="#Page_532">532</a></p> +<p class="indh">Canning, George, and the Russian Ambassador, § 481, p. <a href="#Page_532">532</a></p> -<p class="indh">Canning, Sir Stratford, § 375, p. <a href="#Page_451">451</a></p> +<p class="indh">Canning, Sir Stratford, § 375, p. <a href="#Page_451">451</a></p> -<p class="indh">Caroline, the, § 133, p. <a href="#Page_187">187</a>; § 444, p. <a href="#Page_501">501</a>; § 446, p. <a href="#Page_501">501</a></p> +<p class="indh">Caroline, the, § 133, p. <a href="#Page_187">187</a>; § 444, p. <a href="#Page_501">501</a>; § 446, p. <a href="#Page_501">501</a></p> -<p class="indh">Casa Blanca, § 446<i>a</i>, p. <a href="#Page_502">502</a>; § 476, p. <a href="#Page_521">521</a></p> +<p class="indh">Casa Blanca, § 446<i>a</i>, p. <a href="#Page_502">502</a>; § 476, p. <a href="#Page_521">521</a></p> -<p class="indh">Castioni, <i>Ex parte</i>, § 334, p. <a href="#Page_415">415</a> note 4</p> +<p class="indh">Castioni, <i>Ex parte</i>, § 334, p. <a href="#Page_415">415</a> note 4</p> -<p class="indh">Cellamare, Prince, § 388, p. <a href="#Page_459">459</a></p> +<p class="indh">Cellamare, Prince, § 388, p. <a href="#Page_459">459</a></p> -<p class="indh">Cespedes, the, § 273, p. <a href="#Page_343">343</a>, note 1</p> +<p class="indh">Cespedes, the, § 273, p. <a href="#Page_343">343</a>, note 1</p> -<p class="indh">Charkieh, the, § 91, p. <a href="#Page_144">144</a> note 1; § 450, p. <a href="#Page_507">507</a> note 1</p> +<p class="indh">Charkieh, the, § 91, p. <a href="#Page_144">144</a> note 1; § 450, p. <a href="#Page_507">507</a> note 1</p> -<p class="indh">Charlton, Porter, § 330, p. <a href="#Page_408">408</a></p> +<p class="indh">Charlton, Porter, § 330, p. <a href="#Page_408">408</a></p> -<p class="indh">Chartered Mercantile Bank of India <i>v.</i> Netherlands India Steam Navigation Co., § 265, p. <a href="#Page_335">335</a> note 2</p> +<p class="indh">Chartered Mercantile Bank of India <i>v.</i> Netherlands India Steam Navigation Co., § 265, p. <a href="#Page_335">335</a> note 2</p> -<p class="indh">Cherokee Tobacco, the, § 546, p. <a href="#Page_578">578</a> note 2</p> +<p class="indh">Cherokee Tobacco, the, § 546, p. <a href="#Page_578">578</a> note 2</p> -<p class="indh">Constitution, the, § 450, p. <a href="#Page_507">507</a> note 1</p> +<p class="indh">Constitution, the, § 450, p. <a href="#Page_507">507</a> note 1</p> -<p class="indh">Cook <i>v.</i> Sprigg, § 82, p. <a href="#Page_129">129</a> note 4</p> +<p class="indh">Cook <i>v.</i> Sprigg, § 82, p. <a href="#Page_129">129</a> note 4</p> -<p class="indh">Costa Rica Packet, the, § 162, p. <a href="#Page_217">217</a></p> +<p class="indh">Costa Rica Packet, the, § 162, p. <a href="#Page_217">217</a></p> -<p class="indh">Cutting, § 147, p. <a href="#Page_205">205</a></p> +<p class="indh">Cutting, § 147, p. <a href="#Page_205">205</a></p> </div> <div class="box"> -<p class="indh">Danish Fleet, the, § 131, p. <a href="#Page_186">186</a></p> +<p class="indh">Danish Fleet, the, § 131, p. <a href="#Page_186">186</a></p> -<p class="indh">De <a name="Jag" id="Jag"></a>Jager <i>v.</i> The Attorney-General for Natal, § 317, p. <a href="#Page_394">394</a></p> +<p class="indh">De <a name="Jag" id="Jag"></a>Jager <i>v.</i> The Attorney-General for Natal, § 317, p. <a href="#Page_394">394</a></p> -<p class="indh">De Haber <i>v.</i> Queen of Portugal, § 115, p. <a href="#Page_169">169</a> note 2</p> +<p class="indh">De Haber <i>v.</i> Queen of Portugal, § 115, p. <a href="#Page_169">169</a> note 2</p> -<p class="indh">Delagoa Bay, § 247, p. <a href="#Page_313">313</a></p> +<p class="indh">Delagoa Bay, § 247, p. <a href="#Page_313">313</a></p> -<p class="indh">Dogger Bank, § 163, p. <a href="#Page_219">219</a> note 2</p> +<p class="indh">Dogger Bank, § 163, p. <a href="#Page_219">219</a> note 2</p> -<p class="indh">Dubois, § 392, p. <a href="#Page_465">465</a></p> +<p class="indh">Dubois, § 392, p. <a href="#Page_465">465</a></p> </div> <div class="box"> -<p class="indh">Exchange, the, § 450, p. <a href="#Page_507">507</a> note 1</p> +<p class="indh">Exchange, the, § 450, p. <a href="#Page_507">507</a> note 1</p> </div> <div class="box"> -<p class="indh">Fonds pieux des Californias, § 476, p. <a href="#Page_521">521</a></p> +<p class="indh">Fonds pieux des Californias, § 476, p. <a href="#Page_521">521</a></p> -<p class="indh"><a name="Fra" id="Fra"></a>Franconia, the, § 25, p. <a href="#Page_29">29</a></p> +<p class="indh"><a name="Fra" id="Fra"></a>Franconia, the, § 25, p. <a href="#Page_29">29</a></p> </div> <div class="box"> -<p class="indh">Gallatin, § 403, p. <a href="#Page_474">474</a> note 1</p> +<p class="indh">Gallatin, § 403, p. <a href="#Page_474">474</a> note 1</p> -<p class="indh">Germany, Great Britain, and Italy <i>v.</i> Venezuela, § 476, p. <a href="#Page_521">521</a></p> +<p class="indh">Germany, Great Britain, and Italy <i>v.</i> Venezuela, § 476, p. <a href="#Page_521">521</a></p> -<p class="indh">Germany, France, and Great Britain <i>v.</i> Japan, § 476, p. <a href="#Page_521">521</a></p> +<p class="indh">Germany, France, and Great Britain <i>v.</i> Japan, § 476, p. <a href="#Page_521">521</a></p> -<p class="indh">Gore and Pinkney, § 458, p. <a href="#Page_513">513</a></p> +<p class="indh">Gore and Pinkney, § 458, p. <a href="#Page_513">513</a></p> -<p class="indh">Guébriant, Madame de, § 370, p. <a href="#Page_447">447</a></p> +<p class="indh">Guébriant, Madame de, § 370, p. <a href="#Page_447">447</a></p> -<p class="indh">Gurney, § 402, p. <a href="#Page_473">473</a> note 2</p> +<p class="indh">Gurney, § 402, p. <a href="#Page_473">473</a> note 2</p> -<p class="indh">Gyllenburg, § 388, p. <a href="#Page_459">459</a></p> +<p class="indh">Gyllenburg, § 388, p. <a href="#Page_459">459</a></p> </div> <div class="box"> -<p class="indh">Haggerty, § 427, p. <a href="#Page_489">489</a></p> +<p class="indh">Haggerty, § 427, p. <a href="#Page_489">489</a></p> -<p class="indh">Hall <i>v.</i> Campbell, § 240, p. <a href="#Page_306">306</a> note 1</p> +<p class="indh">Hall <i>v.</i> Campbell, § 240, p. <a href="#Page_306">306</a> note 1</p> -<p class="indh">Hellfeld <i>v.</i> Russian Government, § 115, p. <a href="#Page_169">169</a> note 4</p> +<p class="indh">Hellfeld <i>v.</i> Russian Government, § 115, p. <a href="#Page_169">169</a> note 4</p> -<p class="indh">Huascar, the, § 273, p. <a href="#Page_342">342</a></p> +<p class="indh">Huascar, the, § 273, p. <a href="#Page_342">342</a></p> -<p class="indh">Huus <i>v.</i> New York and Porto Rico Steamship Co., § 579, p. <a href="#Page_609">609</a> note 1</p> +<p class="indh">Huus <i>v.</i> New York and Porto Rico Steamship Co., § 579, p. <a href="#Page_609">609</a> note 1</p> </div> <div class="box"> -<p class="indh">Indian Chief, the, § 434, p. <a href="#Page_494">494</a> note 1</p> +<p class="indh">Indian Chief, the, § 434, p. <a href="#Page_494">494</a> note 1</p> -<p class="indh">Ionian Ships, § 93, p. <a href="#Page_146">146</a> note 1</p> +<p class="indh">Ionian Ships, § 93, p. <a href="#Page_146">146</a> note 1</p> -<p class="indh">Isabella, Queen of Spain, § 351, p. <a href="#Page_432">432</a></p> +<p class="indh">Isabella, Queen of Spain, § 351, p. <a href="#Page_432">432</a></p> </div> <div class="box"> -<p class="indh">Jacquin, § 335, p. <a href="#Page_416">416</a></p> +<p class="indh">Jacquin, § 335, p. <a href="#Page_416">416</a></p> <p class="indh">Jager. <i>See</i> <a href="#Jag">De Jager</a></p> -<p class="indh">Jassy, the, § 450, p. <a href="#Page_507">507</a> note 1</p> +<p class="indh">Jassy, the, § 450, p. <a href="#Page_507">507</a> note 1</p> -<p class="indh">Johann Friederich, the, § 265, p. <a href="#Page_335">335</a> note 2; § 271, p. <a href="#Page_339">339</a> note 1</p> +<p class="indh">Johann Friederich, the, § 265, p. <a href="#Page_335">335</a> note 2; § 271, p. <a href="#Page_339">339</a> note 1</p> </div> <div class="box"> -<p class="indh">Kalkstein, § 390, p. <a href="#Page_464">464</a></p> +<p class="indh">Kalkstein, § 390, p. <a href="#Page_464">464</a></p> -<p class="indh">Keiley, § 375, p. <a href="#Page_450">450</a></p> +<p class="indh">Keiley, § 375, p. <a href="#Page_450">450</a></p> -<p class="indh">Koszta, Martin, § 313, p. <a href="#Page_388">388</a> note 1</p> +<p class="indh">Koszta, Martin, § 313, p. <a href="#Page_388">388</a> note 1</p> </div> @@ -638,170 +597,170 @@ of the United States, 3 vols. (1886).</p> <div class="box"> -<p class="indh">McLeod, § 133, p. <a href="#Page_187">187</a> note 2; § 446, p. <a href="#Page_501">501</a></p> +<p class="indh">McLeod, § 133, p. <a href="#Page_187">187</a> note 2; § 446, p. <a href="#Page_501">501</a></p> -<p class="indh">Macartney <i>v.</i> Garbutt, § 375, p. <a href="#Page_450">450</a> note 2; § 394, p. <a href="#Page_467">467</a> note 1</p> +<p class="indh">Macartney <i>v.</i> Garbutt, § 375, p. <a href="#Page_450">450</a> note 2; § 394, p. <a href="#Page_467">467</a> note 1</p> -<p class="indh">Magdalena Steam Navigation Co. <i>v.</i> Martin, § 391, p. <a href="#Page_465">465</a> note 2</p> +<p class="indh">Magdalena Steam Navigation Co. <i>v.</i> Martin, § 391, p. <a href="#Page_465">465</a> note 2</p> -<p class="indh">Maori King, the, § 261, p. <a href="#Page_331">331</a> note 1</p> +<p class="indh">Maori King, the, § 261, p. <a href="#Page_331">331</a> note 1</p> -<p class="indh">Mendoza, § 387, p. <a href="#Page_459">459</a></p> +<p class="indh">Mendoza, § 387, p. <a href="#Page_459">459</a></p> -<p class="indh">Meunier, <i>In re</i>, § 334, p. <a href="#Page_415">415</a> note 4; § 338, p. <a href="#Page_418">418</a> note 3</p> +<p class="indh">Meunier, <i>In re</i>, § 334, p. <a href="#Page_415">415</a> note 4; § 338, p. <a href="#Page_418">418</a> note 3</p> -<p class="indh">Monaldeschi, § 348, p. <a href="#Page_431">431</a> note 1 <span class="pagenum"><a name="Page_xiv" id="Page_xiv">[Pg xiv]</a></span> </p> +<p class="indh">Monaldeschi, § 348, p. <a href="#Page_431">431</a> note 1 <span class="pagenum"><a name="Page_xiv" id="Page_xiv">[Pg xiv]</a></span> </p> -<p class="indh">Montagnini, § 106, p. <a href="#Page_160">160</a> note 1; § 386, p. <a href="#Page_458">458</a> note 1; § 411, p. <a href="#Page_478">478</a> note 2</p> +<p class="indh">Montagnini, § 106, p. <a href="#Page_160">160</a> note 1; § 386, p. <a href="#Page_458">458</a> note 1; § 411, p. <a href="#Page_478">478</a> note 2</p> -<p class="indh">Montezuma, the, § 273, p. <a href="#Page_343">343</a> note 1</p> +<p class="indh">Montezuma, the, § 273, p. <a href="#Page_343">343</a> note 1</p> -<p class="indh">Monti, Marquis de, § 400, p. <a href="#Page_472">472</a></p> +<p class="indh">Monti, Marquis de, § 400, p. <a href="#Page_472">472</a></p> -<p class="indh">Moray Firth, § 191, p. <a href="#Page_263">263</a> note 3. <i>See also</i> <a href="#Mor">Mortensen <i>v.</i> Peters</a></p> +<p class="indh">Moray Firth, § 191, p. <a href="#Page_263">263</a> note 3. <i>See also</i> <a href="#Mor">Mortensen <i>v.</i> Peters</a></p> -<p class="indh"><a name="Mor" id="Mor"></a>Mortensen <i>v.</i> Peters, § 22, p. <a href="#Page_28">28</a> note 1; § 192, p. <a href="#Page_264">264</a> note 2</p> +<p class="indh"><a name="Mor" id="Mor"></a>Mortensen <i>v.</i> Peters, § 22, p. <a href="#Page_28">28</a> note 1; § 192, p. <a href="#Page_264">264</a> note 2</p> -<p class="indh">Muscat Dhows, the, § 295, p. <a href="#Page_372">372</a> note 2; § 476, p. <a href="#Page_521">521</a></p> +<p class="indh">Muscat Dhows, the, § 295, p. <a href="#Page_372">372</a> note 2; § 476, p. <a href="#Page_521">521</a></p> -<p class="indh">Musgrove <i>v.</i> Chun Teeong Toy, § 141, p. <a href="#Page_200">200</a> note 1</p> +<p class="indh">Musgrove <i>v.</i> Chun Teeong Toy, § 141, p. <a href="#Page_200">200</a> note 1</p> </div> <div class="box"> -<p class="indh">Nereide, the, § 21, p. <a href="#Page_26">26</a> note 2</p> +<p class="indh">Nereide, the, § 21, p. <a href="#Page_26">26</a> note 2</p> -<p class="indh">Nikitschenkow, § 390, p. <a href="#Page_463">463</a></p> +<p class="indh">Nikitschenkow, § 390, p. <a href="#Page_463">463</a></p> -<p class="indh">Nillins, § 330, p. <a href="#Page_407">407</a></p> +<p class="indh">Nillins, § 330, p. <a href="#Page_407">407</a></p> -<p class="indh">North Atlantic Coast Fisheries, § 191, p. <a href="#Page_262">262</a> note 1; § 205, p. <a href="#Page_276">276</a> note 2; § 458, p. <a href="#Page_513">513</a> note 1; § 476, p. <a href="#Page_522">522</a></p> +<p class="indh">North Atlantic Coast Fisheries, § 191, p. <a href="#Page_262">262</a> note 1; § 205, p. <a href="#Page_276">276</a> note 2; § 458, p. <a href="#Page_513">513</a> note 1; § 476, p. <a href="#Page_522">522</a></p> -<p class="indh">Norway <i>v.</i> Sweden, § 476, p. <a href="#Page_522">522</a></p> +<p class="indh">Norway <i>v.</i> Sweden, § 476, p. <a href="#Page_522">522</a></p> </div> <div class="box"> -<p class="indh">Orinoco Steamship Co., § 476, p. <a href="#Page_522">522</a></p> +<p class="indh">Orinoco Steamship Co., § 476, p. <a href="#Page_522">522</a></p> </div> <div class="box"> -<p class="indh">Paladini, § 330, p. <a href="#Page_408">408</a></p> +<p class="indh">Paladini, § 330, p. <a href="#Page_408">408</a></p> -<p class="indh"><i>Panther</i>, the, § 163, p. <a href="#Page_219">219</a></p> +<p class="indh"><i>Panther</i>, the, § 163, p. <a href="#Page_219">219</a></p> -<p class="indh">Paquette Habana, the, § 21, p. <a href="#Page_26">26</a> note 2</p> +<p class="indh">Paquette Habana, the, § 21, p. <a href="#Page_26">26</a> note 2</p> -<p class="indh">Parkinson <i>v.</i> Potter, § 394, p. <a href="#Page_467">467</a> note 1</p> +<p class="indh">Parkinson <i>v.</i> Potter, § 394, p. <a href="#Page_467">467</a> note 1</p> -<p class="indh">Parlement Belge, the, § 450, p. <a href="#Page_507">507</a> note</p> +<p class="indh">Parlement Belge, the, § 450, p. <a href="#Page_507">507</a> note</p> -<p class="indh">Platen-Hallermund, § 240, p. <a href="#Page_306">306</a></p> +<p class="indh">Platen-Hallermund, § 240, p. <a href="#Page_306">306</a></p> -<p class="indh">Porteña, the, § 273, p. <a href="#Page_343">343</a> note 1</p> +<p class="indh">Porteña, the, § 273, p. <a href="#Page_343">343</a> note 1</p> -<p class="indh">Pouble, Cirilo, § 147, p. <a href="#Page_205">205</a> note 1</p> +<p class="indh">Pouble, Cirilo, § 147, p. <a href="#Page_205">205</a> note 1</p> -<p class="indh">Prioleau <i>v.</i> United States, § 82, p. <a href="#Page_129">129</a> note 1; § 115, p. <a href="#Page_169">169</a> note 3</p> +<p class="indh">Prioleau <i>v.</i> United States, § 82, p. <a href="#Page_129">129</a> note 1; § 115, p. <a href="#Page_169">169</a> note 3</p> </div> <div class="box"> -<p class="indh">Reg. <i>v.</i> Cunningham, § 194, p. <a href="#Page_266">266</a> note 2</p> +<p class="indh">Reg. <i>v.</i> Cunningham, § 194, p. <a href="#Page_266">266</a> note 2</p> -<p class="indh">Republic of Bolivia <i>v.</i> The Indemnity Mutual Marine Assurance Co., § 272, p. <a href="#Page_341">341</a> note 1</p> +<p class="indh">Republic of Bolivia <i>v.</i> The Indemnity Mutual Marine Assurance Co., § 272, p. <a href="#Page_341">341</a> note 1</p> -<p class="indh">Republic of Mexico <i>v.</i> Francisco de Arrangoiz, § 115, p. <a href="#Page_169">169</a> note 1</p> +<p class="indh">Republic of Mexico <i>v.</i> Francisco de Arrangoiz, § 115, p. <a href="#Page_169">169</a> note 1</p> -<p class="indh">Ripperda, Duke of, § 390, p. <a href="#Page_461">461</a></p> +<p class="indh">Ripperda, Duke of, § 390, p. <a href="#Page_461">461</a></p> -<p class="indh">Ross, Bishop, § 362, p. <a href="#Page_443">443</a> note 1</p> +<p class="indh">Ross, Bishop, § 362, p. <a href="#Page_443">443</a> note 1</p> </div> <div class="box"> -<p class="indh">Sà, Don Pantaleon, § 404, p. <a href="#Page_475">475</a></p> +<p class="indh">Sà , Don Pantaleon, § 404, p. <a href="#Page_475">475</a></p> -<p class="indh">Sackville, Lord, § 383, p. <a href="#Page_455">455</a> note 1</p> +<p class="indh">Sackville, Lord, § 383, p. <a href="#Page_455">455</a> note 1</p> -<p class="indh">Santa Lucia, § 247, p. <a href="#Page_313">313</a></p> +<p class="indh">Santa Lucia, § 247, p. <a href="#Page_313">313</a></p> -<p class="indh">Sapphire, the, § 115, p. <a href="#Page_169">169</a> note 1</p> +<p class="indh">Sapphire, the, § 115, p. <a href="#Page_169">169</a> note 1</p> -<p class="indh">Savarkar, § 332, p. <a href="#Page_410">410</a>; § 476, p. <a href="#Page_522">522</a></p> +<p class="indh">Savarkar, § 332, p. <a href="#Page_410">410</a>; § 476, p. <a href="#Page_522">522</a></p> -<p class="indh">Schnaebélé, § 456, p. <a href="#Page_511">511</a></p> +<p class="indh">Schnaebélé, § 456, p. <a href="#Page_511">511</a></p> -<p class="indh">Scotia, the, § 21, p. <a href="#Page_26">26</a> note 2</p> +<p class="indh">Scotia, the, § 21, p. <a href="#Page_26">26</a> note 2</p> -<p class="indh">Shenandoah, the, § 273, p. <a href="#Page_343">343</a></p> +<p class="indh">Shenandoah, the, § 273, p. <a href="#Page_343">343</a></p> -<p class="indh">Soulé, § 398, p. <a href="#Page_470">470</a></p> +<p class="indh">Soulé, § 398, p. <a href="#Page_470">470</a></p> -<p class="indh">Springer, § 390, p. <a href="#Page_461">461</a></p> +<p class="indh">Springer, § 390, p. <a href="#Page_461">461</a></p> <p class="indh">Strathclyde, the. <i>See</i> <a href="#Fra">Franconia</a>, the</p> -<p class="indh">Sully, § 396, p. <a href="#Page_468">468</a></p> +<p class="indh">Sully, § 396, p. <a href="#Page_468">468</a></p> -<p class="indh">Sun Yat Sen, § 390, p. <a href="#Page_464">464</a></p> +<p class="indh">Sun Yat Sen, § 390, p. <a href="#Page_464">464</a></p> </div> <div class="box"> -<p class="indh">Taylor <i>v.</i> Best, § 391, p. <a href="#Page_465">465</a> note 2</p> +<p class="indh">Taylor <i>v.</i> Best, § 391, p. <a href="#Page_465">465</a> note 2</p> -<p class="indh">Tourville, § 330, p. <a href="#Page_407">407</a></p> +<p class="indh">Tourville, § 330, p. <a href="#Page_407">407</a></p> </div> <div class="box"> -<p class="indh">United States <i>v.</i> Repentigny, § 240, p. <a href="#Page_306">306</a> note 1</p> +<p class="indh">United States <i>v.</i> Repentigny, § 240, p. <a href="#Page_306">306</a> note 1</p> -<p class="indh">United States <i>v.</i> Prioleau, § 82, p. <a href="#Page_129">129</a> note 1; § 115, p. <a href="#Page_169">169</a> note 3</p> +<p class="indh">United States <i>v.</i> Prioleau, § 82, p. <a href="#Page_129">129</a> note 1; § 115, p. <a href="#Page_169">169</a> note 3</p> -<p class="indh">United States <i>v.</i> Smith, § 21, p. <a href="#Page_26">26</a> note 2</p> +<p class="indh">United States <i>v.</i> Smith, § 21, p. <a href="#Page_26">26</a> note 2</p> -<p class="indh">United States <i>v.</i> Venezuela, § 476, p. <a href="#Page_522">522</a></p> +<p class="indh">United States <i>v.</i> Venezuela, § 476, p. <a href="#Page_522">522</a></p> -<p class="indh">United States <i>v.</i> Wagner, § 115, p. <a href="#Page_169">169</a> note 1</p> +<p class="indh">United States <i>v.</i> Wagner, § 115, p. <a href="#Page_169">169</a> note 1</p> </div> <div class="box"> <p class="indh"><a name="Vad" id="Vad"></a>Vaderland, - the, §<a href="#To_secure_radio287b"> 287<i>b</i></a>, p. <a href="#Page_357">357</a></p> + the, §<a href="#To_secure_radio287b"> 287<i>b</i></a>, p. <a href="#Page_357">357</a></p> -<p class="indh">Vavasseur <i>v.</i> Krupp, § 115, p. <a href="#Page_169">169</a> note 2</p> +<p class="indh">Vavasseur <i>v.</i> Krupp, § 115, p. <a href="#Page_169">169</a> note 2</p> -<p class="indh">Vexaincourt, § 163, p. <a href="#Page_219">219</a></p> +<p class="indh">Vexaincourt, § 163, p. <a href="#Page_219">219</a></p> -<p class="indh">Virginius, the, § 133, p. <a href="#Page_187">187</a> note 2</p> +<p class="indh">Virginius, the, § 133, p. <a href="#Page_187">187</a> note 2</p> </div> <div class="box"> -<p class="indh">Waddington, Carlo, § 404, p. <a href="#Page_475">475</a></p> +<p class="indh">Waddington, Carlo, § 404, p. <a href="#Page_475">475</a></p> -<p class="indh">Washburne, § 399, p. <a href="#Page_471">471</a></p> +<p class="indh">Washburne, § 399, p. <a href="#Page_471">471</a></p> -<p class="indh">West Rand Central Mining Co. <i>v.</i> The King, § 21, p. <a href="#Page_26">26</a> note 2; § 82, p. <a href="#Page_129">129</a> note 4</p> +<p class="indh">West Rand Central Mining Co. <i>v.</i> The King, § 21, p. <a href="#Page_26">26</a> note 2; § 82, p. <a href="#Page_129">129</a> note 4</p> -<p class="indh">William, King of Holland, § 350, p. <a href="#Page_432">432</a></p> +<p class="indh">William, King of Holland, § 350, p. <a href="#Page_432">432</a></p> -<p class="indh">Whitney <i>v.</i> Robertson, § 546, p. <a href="#Page_578">578</a> note 2; § 580, p. <a href="#Page_611">611</a> note 1</p> +<p class="indh">Whitney <i>v.</i> Robertson, § 546, p. <a href="#Page_578">578</a> note 2; § 580, p. <a href="#Page_611">611</a> note 1</p> -<p class="indh">Wrech, Baron de, § 391, p. <a href="#Page_465">465</a></p> +<p class="indh">Wrech, Baron de, § 391, p. <a href="#Page_465">465</a></p> </div> @@ -1831,7 +1790,7 @@ of the United States, 3 vols. (1886).</p> <p class="indh">284. Seal Fisheries in Behring Sea <a href="#Page_351">351</a></p> -<p class="indh">285. Fisheries around the Faröe Islands and Iceland <a href="#Page_353">353</a></p> +<p class="indh">285. Fisheries around the Faröe Islands and Iceland <a href="#Page_353">353</a></p> </div> @@ -1898,7 +1857,7 @@ of the United States, 3 vols. (1886).</p> <p class="indh">294. Function of Nationality <a href="#Page_370">370</a></p> -<p class="indh">295. So-called <i>Protégés</i> and <i>de facto</i> Subjects <a href="#Page_371">371</a></p> +<p class="indh">295. So-called <i>Protégés</i> and <i>de facto</i> Subjects <a href="#Page_371">371</a></p> <p class="indh">296. Nationality and Emigration <a href="#Page_373">373</a></p> @@ -2162,7 +2121,7 @@ of the United States, 3 vols. (1886).</p> <p class="indh">367. Ministers Resident <a href="#Page_445">445</a></p> -<p class="indh">368. Chargés d'Affaires <a href="#Page_445">445</a></p> +<p class="indh">368. Chargés d'Affaires <a href="#Page_445">445</a></p> <p class="indh">369. The Diplomatic Corps <a href="#Page_446">446</a></p> @@ -2509,7 +2468,7 @@ of the United States, 3 vols. (1886).</p> <p class="indh">467<i>a</i>. The Pan-American Union <a href="#Page_517">517</a></p> -<p class="indh">468. Maritime Office at Zanzibar and Bureau Spécial at Brussels <a href="#Page_517">517</a></p> +<p class="indh">468. Maritime Office at Zanzibar and Bureau Spécial at Brussels <a href="#Page_517">517</a></p> <p class="indh">469. International Office of Customs Tariffs <a href="#Page_517">517</a></p> @@ -2987,12 +2946,12 @@ of the Second Hague Peace </h4> -<p class="indh1">Hall, pp. 14-16—Maine, pp. 50-53—Lawrence, §§ 1-3, and Essays, pp. 1-36—Phillimore, -I. §§ 1-12—Twiss, I. §§ 104-5—Taylor, § 2—Moore, I. §§ 1-2—Westlake, -I. pp. 1-13—Walker, History, I. §§ 1-8—Halleck, I. pp. -46-55—Ullmann, §§ 2-4—Heffter, §§ 1-5—Holtzendorff in Holtzendorff, -I. pp. 19-26—Nys, I. pp. 133-43—Rivier, I. § 1—Bonfils, Nos. 26-31—Pradier-Fodéré, -I. Nos. 1-24—Mérignhac, I. pp. 5-28—Martens, I. §§ 1-5—Fiore, +<p class="indh1">Hall, pp. 14-16—Maine, pp. 50-53—Lawrence, §§ 1-3, and Essays, pp. 1-36—Phillimore, +I. §§ 1-12—Twiss, I. §§ 104-5—Taylor, § 2—Moore, I. §§ 1-2—Westlake, +I. pp. 1-13—Walker, History, I. §§ 1-8—Halleck, I. pp. +46-55—Ullmann, §§ 2-4—Heffter, §§ 1-5—Holtzendorff in Holtzendorff, +I. pp. 19-26—Nys, I. pp. 133-43—Rivier, I. § 1—Bonfils, Nos. 26-31—Pradier-Fodéré, +I. Nos. 1-24—Mérignhac, I. pp. 5-28—Martens, I. §§ 1-5—Fiore, I. Nos. 186-208, and Code, Nos. 1-26—Higgins, "The Binding Force of International Law" (1910)—Pollock in <i>The Law Quarterly Review</i>, XVIII. (1902), pp. 418-428—Scott in A.J. I. (1907), pp. 831-865—Willoughby @@ -3003,8 +2962,8 @@ of the Law of Nations.</p></div> -<p>§ 1. Law of Nations or International Law (<i>Droit des -gen</i>s, <i>Völkerrecht</i>) is the name for the body of customary +<p>§ 1. Law of Nations or International Law (<i>Droit des +gen</i>s, <i>Völkerrecht</i>) is the name for the body of customary and conventional rules which are considered legally<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a> binding by civilised States in their intercourse with each other. Such part of these rules as is binding upon @@ -3022,7 +2981,7 @@ Law.</p> <div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> In contradistinction to mere usages and to rules of so-called International Comity, see - below §§ <a href="#But_how9">9</a> + below §§ <a href="#But_how9">9</a> and <a href="#Thus_custom19">19</a>.</p></div> <div class="footnote"><p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[2]</span></a> The best example of universal @@ -3067,7 +3026,7 @@ the Law of Nations contested.</p></div> -<p>§ 2. Almost from the beginning of the science of the +<p>§ 2. Almost from the beginning of the science of the Law of Nations the question has been discussed whether the rules of International Law are <i>legally</i> binding. Hobbes<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[3]</a> already and Pufendorf<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[4]</a> had answered the @@ -3110,7 +3069,7 @@ justice do so.</p> <div class="footnote"><p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[3]</span></a> De Cive, XIV. 4.</p></div> -<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> De Jure Naturæ et Gentium, II. c. iii. § 22.</p></div> +<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> De Jure Naturæ et Gentium, II. c. iii. § 22.</p></div> <div class="footnote"><p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[5]</span></a> Lectures on Jurisprudence, VI.<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span></p></div> @@ -3119,7 +3078,7 @@ of Rules of Law.</p></div> -<p>§ 3. For the purpose of finding a correct definition +<p>§ 3. For the purpose of finding a correct definition of law it is indispensable to compare morality and law with each other, for both lay down rules, and to a great extent the same rules, for human conduct. Now the @@ -3151,12 +3110,12 @@ pay, the bailiff will come into your house, will do so.</p> seems to make the same distinction between rules of law and of morality, -and Twiss, I. § 105, adopts it <i>expressis +and Twiss, I. § 105, adopts it <i>expressis verbis</i>.</p></div> <div class="sidenote"><p>Law-giving Authority not essential for the Existence of Law.</p></div> -<p>§ 4. If these are the characteristic signs of morality +<p>§ 4. If these are the characteristic signs of morality and of law, we are justified in stating the principle: A rule is a rule of morality, if by common consent of the community it applies to conscience and to conscience @@ -3220,7 +3179,7 @@ Conditions of Law.</p></div> -<p>§ 5. <a name="On_the_basis_of5" id="On_the_basis_of5"></a>On the basis of the results of these previous +<p>§ 5. <a name="On_the_basis_of5" id="On_the_basis_of5"></a>On the basis of the results of these previous investigations we are now able to give a definition of law. We may say that <i>law is a body of rules for human conduct within a community which by common consent of @@ -3262,7 +3221,7 @@ with Municipal Law.</p></div> -<p>§ 6. But it must be emphasised that, if there is law +<p>§ 6. But it must be emphasised that, if there is law to be found in every community, law in this meaning must not be identified with the law of States, the so-called Municipal Law,<a name="FNanchor_7_7" id="FNanchor_7_7"></a><a href="#Footnote_7_7" class="fnanchor">[7]</a> just as the conception of State @@ -3293,7 +3252,7 @@ of Nations" a Community.</p></div> -<p>§ 7. As the first condition is the existence of a community, +<p>§ 7. As the first condition is the existence of a community, the question arises, whether an international community exists whose law could be the Law of Nations. Before this question can be answered, the<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> @@ -3373,7 +3332,7 @@ many hundreds of years this community has been called <div class="sidenote"><p>The "Family of Nations" a Community with Rules of Conduct.</p></div> -<p>§ 8. Thus the first essential condition for the existence +<p>§ 8. Thus the first essential condition for the existence of law is a reality. The single States make altogether a body of States, a community of individual<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> States. But the second condition cannot be denied @@ -3416,7 +3375,7 @@ the ultimate characteristic features of which cannot at present be foreseen.<a name="FNanchor_9_9" id="FNanchor_9_9"></a><a href="#Footnote_9_9" class="fnanchor">[9]</a></p> <div class="footnote"><p><a name="Footnote_9_9" id="Footnote_9_9"></a><a href="#FNanchor_9_9"><span class="label">[9]</span></a> See -Oppenheim, "Die Zukunft des Völkerrechts" (1911), +Oppenheim, "Die Zukunft des Völkerrechts" (1911), <i>passim</i>.</p></div> <div class="sidenote"><p>External @@ -3426,7 +3385,7 @@ of Rules of International Conduct.</p></div> -<p>§ 9. <a name="But_how9" id="But_how9"></a>But how do matters stand concerning the third +<p>§ 9. <a name="But_how9" id="But_how9"></a>But how do matters stand concerning the third essential condition for the existence of law? Is there a common consent of the community of States that the rules of international conduct shall be enforced by @@ -3467,7 +3426,7 @@ still law, and the Law of Nations is by no means so weak a law as it sometimes seems to be.<a name="FNanchor_11_11" id="FNanchor_11_11"></a><a href="#Footnote_11_11" class="fnanchor">[11]</a></p> <div class="footnote"><p><a name="Footnote_10_10" id="Footnote_10_10"></a><a href="#FNanchor_10_10"><span class="label">[10]</span></a> See - below, § <a href="#It_is_apparent135">135</a>, concerning intervention by right.</p></div> + below, § <a href="#It_is_apparent135">135</a>, concerning intervention by right.</p></div> <div class="footnote"><p><a name="Footnote_11_11" id="Footnote_11_11"></a><a href="#FNanchor_11_11"><span class="label">[11]</span></a> Those who deny to International Law the character of law because they identify the conception of law in general with that of @@ -3483,7 +3442,7 @@ Law of Nations as Law.</p></div> -<p>§ 10. The fact is that theorists only are divided +<p>§ 10. The fact is that theorists only are divided concerning the character of the Law of Nations as real law. In practice International Law is constantly recognised as law. The Governments and Parliaments of @@ -3548,7 +3507,7 @@ Consent the Basis of Law.</p></div> -<p>§ 11. If law is, as defined above (§ 5), a body of +<p>§ 11. If law is, as defined above (§ 5), a body of rules for human conduct within a community which by common consent of this community shall be enforced through external power, common consent is the basis @@ -3592,7 +3551,7 @@ the Basis of International Law.</p></div> -<p>§ 12. <a name="Wh12" id="Wh12"></a>What has been stated with regard to law pure +<p>§ 12. <a name="Wh12" id="Wh12"></a>What has been stated with regard to law pure and simple applies also to the Law of Nations. However, the community for which this Law of Nations is authoritative consists not of individual human beings, @@ -3689,7 +3648,7 @@ of the Law of Nations.</p></div> -<p>§ 13. <a name="Since_the_Law_of13" id="Since_the_Law_of13"></a>Since the Law of Nations is based on the +<p>§ 13. <a name="Since_the_Law_of13" id="Since_the_Law_of13"></a>Since the Law of Nations is based on the common consent of individual States, and not of individual human beings, States solely and exclusively are the subjects of International Law. This means that @@ -3724,7 +3683,7 @@ citizens.<a name="FNanchor_12_12" id="FNanchor_12_12"></a><a href="#Footnote_12_ <div class="footnote"><p><a name="Footnote_12_12" id="Footnote_12_12"></a><a href="#FNanchor_12_12"><span class="label">[12]</span></a> The importance of the fact that subjects of the Law of Nations are States exclusively is so great that I consider it necessary to emphasise it again and again throughout this work. See, for instance, - below, §§ <a href="#No289">289</a>, <a href="#Heads_of_States344">344</a>, <a href="#Diplomatic_envoys384">384</a>. It should, however, already be mentioned here + below, §§ <a href="#No289">289</a>, <a href="#Heads_of_States344">344</a>, <a href="#Diplomatic_envoys384">384</a>. It should, however, already be mentioned here that this assertion is even nowadays still sometimes contradicted; see, for instance, Kaufmann, "Die Rechtskraft des Internationalen Rechts" (1899), <i>passim</i>; Rehm in Z.V. I. (1907), p. 53; and Diena in R.G. XVI. @@ -3737,7 +3696,7 @@ the Basis of International Law.</p></div> -<p>§ 14. <a name="Since_the_Law14" id="Since_the_Law14"></a>Since the Law of Nations is based on the +<p>§ 14. <a name="Since_the_Law14" id="Since_the_Law14"></a>Since the Law of Nations is based on the common consent of States as sovereign communities, the member States of the Family of Nations are equal to each other as subjects of International Law. States @@ -3750,7 +3709,7 @@ fact that the Law of Nations is a law between, not above, the States.<a name="FNanchor_13_13" id="FNanchor_13_13"></a><a href="#Footnote_13_13" class="fnanchor">[13]</a></p> <div class="footnote"><p><a name="Footnote_13_13" id="Footnote_13_13"></a><a href="#FNanchor_13_13"><span class="label">[13]</span></a> See - below, §§ <a href="#The_equality_before115">115</a>-116, where the + below, §§ <a href="#The_equality_before115">115</a>-116, where the legal equality of States in contradistinction to their political inequality is discussed, and where it will also @@ -3766,15 +3725,15 @@ States.</p></div> </h4> -<p class="indh1">Hall, pp. 5-14—Maine, pp. 1-25—Lawrence, §§ 61-66—Phillimore, I. -§§ 17-33—Twiss, I. §§ 82-103—Taylor, §§ 30-36—Westlake, I. pp. 14-19—Wheaton, -§ 15—Halleck, I. pp. 55-64—Ullmann, §§ 8-9—Heffter, § 3—Holtzendorff -in Holtzendorff, I. pp. 79-158—Rivier, I. § 2—Nys, I. pp. -144-165—Bonfils, Nos. 45-63—Despagnet, Nos. 58-63—Pradier-Fodéré, -I. Nos. 24-35—Mérignhac, I. pp. 79-113—Martens, I. § 43—Fiore, I. Nos. -224-238—Calvo, I. §§ 27-38—Bergbohm, "Staatsverträge und Gesetze -als Quellen des Völkerrechts" (1877)—Jellinek, "Die rechtliche Natur -der Staatsverträge" (1880)—Cavaglieri, "La consuetudine giuridica +<p class="indh1">Hall, pp. 5-14—Maine, pp. 1-25—Lawrence, §§ 61-66—Phillimore, I. +§§ 17-33—Twiss, I. §§ 82-103—Taylor, §§ 30-36—Westlake, I. pp. 14-19—Wheaton, +§ 15—Halleck, I. pp. 55-64—Ullmann, §§ 8-9—Heffter, § 3—Holtzendorff +in Holtzendorff, I. pp. 79-158—Rivier, I. § 2—Nys, I. pp. +144-165—Bonfils, Nos. 45-63—Despagnet, Nos. 58-63—Pradier-Fodéré, +I. Nos. 24-35—Mérignhac, I. pp. 79-113—Martens, I. § 43—Fiore, I. Nos. +224-238—Calvo, I. §§ 27-38—Bergbohm, "Staatsverträge und Gesetze +als Quellen des Völkerrechts" (1877)—Jellinek, "Die rechtliche Natur +der Staatsverträge" (1880)—Cavaglieri, "La consuetudine giuridica internazionale" (1907).</p> <div class="sidenote"><p>Source in @@ -3782,7 +3741,7 @@ Contradistinction to Cause.</p></div> -<p>§ 15. The different writers on the Law of Nations +<p>§ 15. The different writers on the Law of Nations disagree widely with regard to kinds and numbers of sources of this law. The fact is that the term "source of law" is made use of in different meanings by the<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> @@ -3824,7 +3783,7 @@ and legal force.</p> <div class="sidenote"><p>The two Sources of International Law.</p></div> -<p>§ 16. As the basis of the Law of Nations is the<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> +<p>§ 16. As the basis of the Law of Nations is the<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> common consent of the member States of the Family of Nations, it is evident that there must exist, and can only exist, as many sources of International Law as @@ -3848,14 +3807,14 @@ Contradistinction to Usage.</p></div> -<p>§ 17. <a name="Cu17" id="Cu17"></a>Custom is the older and the original source of +<p>§ 17. <a name="Cu17" id="Cu17"></a>Custom is the older and the original source of International Law in particular as well as of law in general. Custom must not be confounded with usage. In everyday life and language both terms are used synonymously, but in the language of the jurist they have two distinctly different meanings. Jurists speak of a custom, when a clear and continuous habit of -doing certain actions has grown up under the ægis of +doing certain actions has grown up under the ægis of the conviction that these actions are legally necessary or legally right. On the other hand, jurists speak of a usage, when a habit of doing certain actions has grown @@ -3881,7 +3840,7 @@ as Source of International Law.</p></div> -<p>§ 18. <a name="Treaties_are18" id="Treaties_are18"></a>Treaties are the second source of International +<p>§ 18. <a name="Treaties_are18" id="Treaties_are18"></a>Treaties are the second source of International Law, and a source which has of late become of the greatest importance. As treaties may be concluded for innumerable purposes,<a name="FNanchor_14_14" id="FNanchor_14_14"></a><a href="#Footnote_14_14" class="fnanchor">[14]</a> it is necessary to emphasise that @@ -3920,19 +3879,19 @@ customary rule of the Law of Nations, that treaties are binding upon the contracting parties.<a name="FNanchor_16_16" id="FNanchor_16_16"></a><a href="#Footnote_16_16" class="fnanchor">[16]</a></p> <div class="footnote"><p><a name="Footnote_14_14" id="Footnote_14_14"></a><a href="#FNanchor_14_14"><span class="label">[14]</span></a> See - below, § <a href="#These_important_functions492">492</a>.</p></div> + below, § <a href="#These_important_functions492">492</a>.</p></div> <div class="footnote"><p><a name="Footnote_15_15" id="Footnote_15_15"></a><a href="#FNanchor_15_15"><span class="label">[15]</span></a> Law-making treaties of world-wide importance are enumerated -below, §§ <a href="#The_Final_Act556">556</a>-568b.</p></div> +below, §§ <a href="#The_Final_Act556">556</a>-568b.</p></div> <div class="footnote"><p><a name="Footnote_16_16" id="Footnote_16_16"></a><a href="#FNanchor_16_16"><span class="label">[16]</span></a> See - below, § <a href="#The_question_as_to493">493</a>.</p></div> + below, § <a href="#The_question_as_to493">493</a>.</p></div> <div class="sidenote"><p>Factors influencing the Growth of International Law.</p></div> -<p>§ 19. <a name="Thus_custom19" id="Thus_custom19"></a>Thus custom and treaties are the two exclusive +<p>§ 19. <a name="Thus_custom19" id="Thus_custom19"></a>Thus custom and treaties are the two exclusive sources of the Law of Nations. When writers on International Law frequently enumerate other sources besides custom and treaties, they confound the term @@ -3980,7 +3939,7 @@ this development will go on in future also, and that thereby many a rule of present International Comity will in future become one of International Law.<a name="FNanchor_20_20" id="FNanchor_20_20"></a><a href="#Footnote_20_20" class="fnanchor">[20]</a></p> -<div class="footnote"><p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[20]</span></a> The matter is ably discussed in Stoerk, "Völkerrecht und Völkercourtoisie" +<div class="footnote"><p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[20]</span></a> The matter is ably discussed in Stoerk, "Völkerrecht und Völkercourtoisie" (1908).</p></div> <p>Not to be confounded with the rules of Comity are @@ -3995,8 +3954,8 @@ individuals.</p> </h4> <p class="indh1">Holtzendorff in Holtzendorff, I. pp. 49-53, 117-120—Nys, I. pp. 185-189—Taylor, -§ 103—Holland, Studies, pp. 176-200—Kaufmann, "Die -Rechtskraft des internationalen Rechts" (1899)—Triepel, "Völkerrecht +§ 103—Holland, Studies, pp. 176-200—Kaufmann, "Die +Rechtskraft des internationalen Rechts" (1899)—Triepel, "Völkerrecht und Landesrecht" (1899)—Anzilotti, "Il diritto internazionale nei giudizi interni" (1905)—Kohler in Z.V. II. (1908), pp. 209-230.</p> @@ -4007,7 +3966,7 @@ International and Municipal Law.</p></div> -<p>§ 20. <a name="Th20" id="Th20"></a>The Law of Nations and the Municipal Law +<p>§ 20. <a name="Th20" id="Th20"></a>The Law of Nations and the Municipal Law of the single States are essentially different from each other. They differ, first, as regards their sources. Sources of Municipal Law are custom grown up within @@ -4034,7 +3993,7 @@ is a law not above, but between Sovereign States, and therefore a weaker law.<a name="FNanchor_21_21" id="FNanchor_21_21"></a><a href="#Footnote_21_21" class="fnanchor">[21]</a></p> <div class="footnote"><p><a name="Footnote_21_21" id="Footnote_21_21"></a><a href="#FNanchor_21_21"><span class="label">[21]</span></a> See - above, § <a href="#But_how9">9</a>.</p></div> + above, § <a href="#But_how9">9</a>.</p></div> <div class="sidenote"><p>Law of @@ -4043,7 +4002,7 @@ never <i>per se</i> Municipal Law.</p></div> -<p>§ 21. <a name="If_the_Law21" id="If_the_Law21"></a>If the Law of Nations and Municipal Law +<p>§ 21. <a name="If_the_Law21" id="If_the_Law21"></a>If the Law of Nations and Municipal Law differ as demonstrated, the Law of Nations can neither as a body nor in parts be <i>per se</i> a part of Municipal Law. Just as Municipal Law lacks the power of altering @@ -4074,7 +4033,7 @@ States. See The Nereide, 9 Cranch, Wheaton, 153; The Scotia, 14 Wallace, 170; The Paquette Habana, 175 United States, 677. See also -Taylor, § 103, and Scott in A.J.I. +Taylor, § 103, and Scott in A.J.I. (1908), pp. 852-865. As regards Great Britain, see Blackstone, IV. ch. 5, and Westlake in <i>The Law Quarterly @@ -4086,16 +4045,16 @@ Central Mining Co. <i>v.</i> The King <div class="footnote"><p><a name="Footnote_23_23" id="Footnote_23_23"></a><a href="#FNanchor_23_23"><span class="label">[23]</span></a> This ought to be generally recognised, but, in fact, is not; says, for instance, Kohler in Z.V. II.(1908), p. 210:—"<i>... -das Völkerrecht ist ein überstaatliches +das Völkerrecht ist ein überstaatliches Recht, das der Gesetzgebung des einzelnen Staates nicht unterworfen ist und von den Richtern ohne weiteres -respectirt werden muss: das Völkerrecht -steht über dem staatlichen Recht</i>."</p></div> +respectirt werden muss: das Völkerrecht +steht über dem staatlichen Recht</i>."</p></div> <div class="sidenote"><p>Certain Rules of Municipal Law necessitated or interdicted.</p></div> -<p>§ 22. If Municipal Courts cannot apply unadopted +<p>§ 22. If Municipal Courts cannot apply unadopted rules of the Law of Nations, and must apply even such rules of Municipal Law as conflict with the Law of Nations, it is evident that the several States, in order @@ -4130,13 +4089,13 @@ Nations.</p> <div class="footnote"><p><a name="Footnote_24_24" id="Footnote_24_24"></a><a href="#FNanchor_24_24"><span class="label">[24]</span></a> This became quite apparent in the Moray Firth case (Mortensen <i>v.</i> Peters)—see - below, § <a href="#Gulfs_and_bays192">192</a>—in which the Court had to + below, § <a href="#Gulfs_and_bays192">192</a>—in which the Court had to apply British Municipal Law.</p></div> <div class="sidenote"><p>Presumption against conflicts between International and Municipal Law.</p></div> -<p>§ 23. However, although Municipal Courts must apply Municipal Law even +<p>§ 23. However, although Municipal Courts must apply Municipal Law even if conflicting with the Law of Nations, there is a presumption against the existence of such a conflict. As the Law of Nations is based upon the common consent of the different States, it is improbable that a @@ -4153,7 +4112,7 @@ necessary Municipal Rules.</p></div> -<p>§ 24. In case of a gap in the statutes of a civilised +<p>§ 24. In case of a gap in the statutes of a civilised State regarding certain rules necessitated by the Law of Nations, such rules ought to be presumed by the Courts to have been tacitly adopted by such Municipal @@ -4168,7 +4127,7 @@ that such privileges are tacitly granted.</p> <div class="sidenote"><p>Presumption of the Existence of certain Municipal Rules in Conformity with Rights granted by the Law of Nations.</p></div> -<p>§ 25. <a name="There_is_no_doubt25" id="There_is_no_doubt25"></a>There is no doubt that a State need not make +<p>§ 25. <a name="There_is_no_doubt25" id="There_is_no_doubt25"></a>There is no doubt that a State need not make use of all the rights it has by the Law of Nations, and that, consequently, every State can by its laws expressly<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span> renounce the whole or partial use of such rights, @@ -4205,9 +4164,9 @@ Jurisdiction Act."<a name="FNanchor_26_26" id="FNanchor_26_26"></a><a href="#Foo <div class="footnote"><p><a name="Footnote_25_25" id="Footnote_25_25"></a><a href="#FNanchor_25_25"><span class="label">[25]</span></a> L.R. 2 Ex. Div. 63. See Phillimore, -I. § 198 B; Maine, pp. 39-45. +I. § 198 B; Maine, pp. 39-45. See also - below, § <a href="#That_the_littoral189">189</a>, where the + below, § <a href="#That_the_littoral189">189</a>, where the controversy is discussed whether a littoral State has jurisdiction over foreign vessels that merely pass @@ -4223,11 +4182,11 @@ through its maritime belt.</p></div> </h4> -<p class="indh1">Lawrence, § 44—Phillimore, I. §§ 27-33—Twiss, I. § 62—Taylor, §§ 61-64—Westlake, -I. p. 40—Bluntschli, §§ 1-16—Heffter, § 7—Holtzendorff in -Holtzendorff, I. pp. 13-18—Nys, I. pp. 116-132—Rivier, I. § 1—Bonfils, -Nos. 40-45—Despagnet, Nos. 51-53—Martens, I. § 41—Fiore, Code, Nos. -38-43—Ullmann, § 10—Nippold in Z.V. II. (1908), pp. 441-443—Cavaglieri +<p class="indh1">Lawrence, § 44—Phillimore, I. §§ 27-33—Twiss, I. § 62—Taylor, §§ 61-64—Westlake, +I. p. 40—Bluntschli, §§ 1-16—Heffter, § 7—Holtzendorff in +Holtzendorff, I. pp. 13-18—Nys, I. pp. 116-132—Rivier, I. § 1—Bonfils, +Nos. 40-45—Despagnet, Nos. 51-53—Martens, I. § 41—Fiore, Code, Nos. +38-43—Ullmann, § 10—Nippold in Z.V. II. (1908), pp. 441-443—Cavaglieri in R.G. XVIII. (1911), pp. 259-292.</p> <div class="sidenote"><p>Range of @@ -4235,7 +4194,7 @@ Dominion of International Law controversial.</p></div> -<p>§ 26. Dominion of the Law of Nations is the name +<p>§ 26. Dominion of the Law of Nations is the name given to the area within which International Law is applicable—that is, those States between which International Law finds validity. The range of the dominion @@ -4268,15 +4227,15 @@ interests, which knit Christian States together, knit likewise some non-Christian and Christian States.</p> <div class="footnote"><p><a name="Footnote_27_27" id="Footnote_27_27"></a><a href="#FNanchor_27_27"><span class="label">[27]</span></a> See, - for instance, Bluntschli, § 8, + for instance, Bluntschli, § 8, and Fiore, Code, No. 38.</p></div> <div class="footnote"><p><a name="Footnote_28_28" id="Footnote_28_28"></a><a href="#FNanchor_28_28"><span class="label">[28]</span></a> See, - for instance, Martens, § 41.</p></div> + for instance, Martens, § 41.</p></div> <div class="sidenote"><p>Three Conditions of Membership of the Family of Nations.</p></div> -<p>§ 27. <a name="Thus_the_membership27" id="Thus_the_membership27"></a>Thus the membership of the Family of Nations +<p>§ 27. <a name="Thus_the_membership27" id="Thus_the_membership27"></a>Thus the membership of the Family of Nations has of late necessarily been increased, and the range of the dominion of the Law of Nations has extended beyond its original limits. This extension has taken @@ -4313,7 +4272,7 @@ States which are subjects of International Law.</p> <div class="sidenote"><p>Present range of Dominion of the Law of Nations.</p></div> -<p>§ 28. <a name="The_present_range28" id="The_present_range28"></a>The present range of the dominion of International +<p>§ 28. <a name="The_present_range28" id="The_present_range28"></a>The present range of the dominion of International Law is a product of historical development within which epochs are distinguishable marked by successive entrances of various States into the Family @@ -4344,7 +4303,7 @@ belong to this group.</p> <div class="footnote"><p><a name="Footnote_29_29" id="Footnote_29_29"></a><a href="#FNanchor_29_29"><span class="label">[29]</span></a> But it ought not to be maintained that there is—in contradistinction to the European—an American International Law in -existence; see, however, Alvarez, "Le Droit International Américain" +existence; see, however, Alvarez, "Le Droit International Américain" (1910), and again Alvarez in A.J. III. (1909), pp. 269-353.</p></div> <p>(3) With the reception of the Turkish Empire into @@ -4355,9 +4314,9 @@ Peace Treaty of Paris of 1856, in which the five Great<span class="pagenum"><a n European Powers of the time, namely, France, Austria, England, Prussia, and Russia, and besides those Sardinia, the nucleus of the future Great Power Italy, -expressly "déclarent la Sublime Porte admise à participer +expressly "déclarent la Sublime Porte admise à participer aux avantages du droit public et du concert -européens." Since that time Turkey has on the whole +européens." Since that time Turkey has on the whole endeavoured in time of peace and war to act in conformity with the rules of International Law, and she has, on the other hand, been treated<a name="FNanchor_30_30" id="FNanchor_30_30"></a><a href="#Footnote_30_30" class="fnanchor">[30]</a> accordingly by @@ -4405,7 +4364,7 @@ respect in the near future. But as yet they have not accomplished this task, and consequently they are not yet able to be received into the Family of Nations as full members. Although they are, as will be shown - below (§ <a href="#Doubtful_is_the103">103</a>), for some parts within the circle of the + below (§ <a href="#Doubtful_is_the103">103</a>), for some parts within the circle of the Family of Nations, they remain for other parts outside. But the example of Japan can show them that it depends entirely upon their own efforts to be received @@ -4419,11 +4378,11 @@ membership in 1908 when it merged in Belgium by cession.</p> <div class="footnote"><p><a name="Footnote_31_31" id="Footnote_31_31"></a><a href="#FNanchor_31_31"><span class="label">[31]</span></a> See - below, § <a href="#The_former_Congo101">101</a>.</p></div> + below, § <a href="#The_former_Congo101">101</a>.</p></div> <div class="sidenote"><p>Treatment of States outside the Family of Nations.</p></div> -<p>§ 29. The Law of Nations as a law between States +<p>§ 29. The Law of Nations as a law between States based on the common consent of the members of the Family of Nations naturally does not contain any rules concerning the intercourse with and treatment of such @@ -4447,18 +4406,18 @@ to their relations with the Red Indians.</p> </h4> -<p class="indh1">Holtzendorff in Holtzendorff, I. pp. 136-152—Ullmann, § 11—Despagnet, -Nos. 67-68—Bonfils, Nos. 1713-1727—Mérignhac, I. pp. 26-28—Nys, I. -pp. 166-183—Rivier, I. § 2—Fiore, I. Nos. 124-127—Martens, I. § 44—Holland, -Studies, pp. 78-95—Bergbohm, "Staatsverträge und Gesetze -als Quellen des Völkerrechts" (1877), pp. 44-77—Bulmerincq, "Praxis, -Theorie, und Codification des Völkerrechts" (1874), pp. 167-192—Roszkowski +<p class="indh1">Holtzendorff in Holtzendorff, I. pp. 136-152—Ullmann, § 11—Despagnet, +Nos. 67-68—Bonfils, Nos. 1713-1727—Mérignhac, I. pp. 26-28—Nys, I. +pp. 166-183—Rivier, I. § 2—Fiore, I. Nos. 124-127—Martens, I. § 44—Holland, +Studies, pp. 78-95—Bergbohm, "Staatsverträge und Gesetze +als Quellen des Völkerrechts" (1877), pp. 44-77—Bulmerincq, "Praxis, +Theorie, und Codification des Völkerrechts" (1874), pp. 167-192—Roszkowski in R.I. XXI. (1889), p. 520—Proceedings of the American Society of International Law, IV. (1910), pp. 208-227.</p> <div class="sidenote"><p>Movement in Favour of Codification.</p></div> -<p>§ 30. The lack of precision which is natural to a +<p>§ 30. The lack of precision which is natural to a large number of the rules of the Law of Nations on account of its slow and gradual growth has created a movement for its codification. The idea of a codification @@ -4480,8 +4439,8 @@ Quarterly Review</i>, XI. (1885), pp. which resolved in 1792 to create a Declaration of the Rights of Nations as a pendant to the Declaration of the Rights of Mankind of 1789. For this purpose -the Abbé Grégoire was charged with the drafting -of such a declaration. In 1795, Abbé Grégoire produced +the Abbé Grégoire was charged with the drafting +of such a declaration. In 1795, Abbé Grégoire produced a draft of twenty-one articles, which, however,<span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span> was rejected by the Convention, and the matter dropped.<a name="FNanchor_33_33" id="FNanchor_33_33"></a><a href="#Footnote_33_33" class="fnanchor">[33]</a></p> @@ -4497,7 +4456,7 @@ only.</p></div> made to show the possibility of a codification. This was done by an Austrian jurist, Alfons von Domin-Petrushevecz, who published in that year at Leipzig a -"Précis d'un Code de Droit International."</p> +"Précis d'un Code de Droit International."</p> <p>In 1862, the Russian Professor Katschenowsky brought an essay before the Juridical Society of London @@ -4510,11 +4469,11 @@ of rules which the United States published during the Civil War for the guidance of her army.<a name="FNanchor_34_34" id="FNanchor_34_34"></a><a href="#Footnote_34_34" class="fnanchor">[34]</a></p> <div class="footnote"><p><a name="Footnote_34_34" id="Footnote_34_34"></a><a href="#FNanchor_34_34"><span class="label">[34]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th68">vol. II. § 68</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th68">vol. II. § 68</a>.</p></div> <p>In 1868, Bluntschli, the celebrated Swiss interpreter of the Law of Nations, published "Das moderne -Völkerrecht der civilisirten Staaten als Rechtsbuch +Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt." This draft code has been translated into the French, Greek, Spanish, and Russian languages, and the Chinese Government produced an official @@ -4563,8 +4522,8 @@ diritto internazionale codificato e sua sanzione giuridica," of which a fourth edition appeared in 1911.</p> <p>In 1906 E. Duplessix published his "La loi des -Nations. Projet d'institution d'une autorité nationale, -législative, administrative, judiciaire. Projet de Code +Nations. Projet d'institution d'une autorité nationale, +législative, administrative, judiciaire. Projet de Code de Droit international public."</p> <p>In 1911 Jerome Internoscia published his "New Code @@ -4572,7 +4531,7 @@ of International Law" in English, French, and Italian.</p> <div class="sidenote"><p>Work of the first Hague Peace Conference.</p></div> -<p>§ 31. At the end of the nineteenth century, in 1899, +<p>§ 31. At the end of the nineteenth century, in 1899, the so-called Peace Conference at the Hague, convened on the personal initiative of the Emperor Nicholas II. of Russia, has shown the possibility that parts of the @@ -4603,7 +4562,7 @@ made an epoch in the history of International Law.</p> <div class="sidenote"><p>Work of the second Hague Peace Conference and the Naval Conference of London.</p></div> -<p>§ 32. <a name="Sh32" id="Sh32"></a>Shortly after the Hague Peace Conference of +<p>§ 32. <a name="Sh32" id="Sh32"></a>Shortly after the Hague Peace Conference of 1899, the United States of America took a step with regard to sea warfare similar to that taken by her in 1863 with regard to land warfare. She published on @@ -4662,7 +4621,7 @@ Court possible.<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a>< <div class="sidenote"><p>Value of Codification of International Law contested.</p></div> -<p>§ 33. In spite of the movement in favour of codification +<p>§ 33. In spite of the movement in favour of codification of the Law of Nations, there are many eminent jurists who oppose such codification. They argue that codification would never be possible on account of @@ -4685,7 +4644,7 @@ certain basis for the practice of the States to stand upon.</p> <div class="sidenote"><p>Merits of Codification in general.</p></div> -<p>§ 34. I am decidedly not a blind and enthusiastic +<p>§ 34. I am decidedly not a blind and enthusiastic admirer of codification in general. It cannot be maintained that codification is everywhere, at all times, and under all circumstances opportune. Codification @@ -4746,7 +4705,7 @@ codification.</p> <div class="sidenote"><p>Merits of Codification of International Law.</p></div> -<p>§ 35. But do these arguments in favour of codification +<p>§ 35. But do these arguments in favour of codification in general also apply to codification of the Law of Nations? I have no doubt that they do more or less. If some of these arguments have no force in view of @@ -4823,7 +4782,7 @@ as to the feasibility of such partial codification.</p> <div class="sidenote"><p>How Codification could be realised.</p></div> -<p>§ 36. However, although possible, codification could +<p>§ 36. However, although possible, codification could hardly be realised at once. The difficulties, though not insuperable, are so great that it would take the work of perhaps a generation of able jurists to prepare draft @@ -4871,26 +4830,26 @@ which could be realised by successive codification.<span class="pagenum"><a name <span class="smaller">DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS</span> </h4> -<p class="indh1">Lawrence, §§ 20-29—Manning, pp. 8-20—Halleck, I. pp. 1-11—Walker, -History, I. pp. 30-137—Taylor, §§ 6-29—Ullmann, §§ 12-14—Holtzendorff -in Holtzendorff, I, pp. 159-386—Nys, I. pp. 1-18—Martens, I. §§ 8-20—Fiore, +<p class="indh1">Lawrence, §§ 20-29—Manning, pp. 8-20—Halleck, I. pp. 1-11—Walker, +History, I. pp. 30-137—Taylor, §§ 6-29—Ullmann, §§ 12-14—Holtzendorff +in Holtzendorff, I, pp. 159-386—Nys, I. pp. 1-18—Martens, I. §§ 8-20—Fiore, I. Nos. 3-31—Calvo, I. pp. 1-32—Bonfils, Nos. 71-86—Despagnet, -Nos. 1-19—Mérignhac, I. pp. 38-43—Laurent, "Histoire du Droit des +Nos. 1-19—Mérignhac, I. pp. 38-43—Laurent, "Histoire du Droit des Gens," &c., 14 vols. (2nd ed. 1861-1868)—Ward, "Enquiry into the -Foundation and History of the Law of Nations," 2 vols. (1795)—Osenbrüggen, -"De Jure Belli ac Pacis Romanorum" (1876)—Müller-Jochmus, -"Geschichte des Völkerrechts im Alterthum" (1848)—Hosack, +Foundation and History of the Law of Nations," 2 vols. (1795)—Osenbrüggen, +"De Jure Belli ac Pacis Romanorum" (1876)—Müller-Jochmus, +"Geschichte des Völkerrechts im Alterthum" (1848)—Hosack, "Rise and Growth of the Law of Nations" (1883), pp. 1-226—Nys, "Le -Droit de la Guerre et les Précurseurs de Grotius" (1882) and "Les +Droit de la Guerre et les Précurseurs de Grotius" (1882) and "Les Origines du Droit International" (1894)—Hill, "History of Diplomacy in the International Development of Europe," vol. I. (1905) and vol. II. -(1906)—Cybichowski, "Das antike Völkerrecht" (1907)—Phillipson, "The +(1906)—Cybichowski, "Das antike Völkerrecht" (1907)—Phillipson, "The International Law and Custom of Ancient Greece and Rome," 2 vols. (1910)—Strupp, -"Urkunden zur Geschichte des Völkerrechts," 2 vols. (1911).</p> +"Urkunden zur Geschichte des Völkerrechts," 2 vols. (1911).</p> <div class="sidenote"><p>No Law of Nations in antiquity.</p></div> -<p>§ 37. <a name="In37" id="In37"></a>International Law as a law between Sovereign +<p>§ 37. <a name="In37" id="In37"></a>International Law as a law between Sovereign and equal States based on the common consent of these States is a product of modern Christian civilisation, and may be said to be hardly four hundred years @@ -4927,7 +4886,7 @@ Jews, Greeks, and Romans.</p> <div class="sidenote"><p>The Jews.</p></div> -<p>§ 38. Although they were monotheists and the +<p>§ 38. Although they were monotheists and the standard of their ethics was consequently much higher than that of their heathen neighbours, the Jews did not in fact raise the standard of the international relations @@ -5047,7 +5006,7 @@ has never disappeared.</p> <div class="sidenote"><p>The Greeks.</p></div> -<p>§ 39. Totally different from this Jewish contribution +<p>§ 39. Totally different from this Jewish contribution to a future International Law is that of the Greeks. The broad and deep gulf between their civilisation and that of their neighbours necessarily made them look @@ -5105,7 +5064,7 @@ members of that community.</p> <div class="sidenote"><p>The Romans.</p></div> -<p>§ 40. <a name="To40" id="To40"></a>Totally different again from the Greek contribution<span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> +<p>§ 40. <a name="To40" id="To40"></a>Totally different again from the Greek contribution<span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> to a future International Law is that of the Romans. As far back as their history goes, the Romans had a special set of twenty priests, the so-called <i>fetiales</i>, @@ -5202,7 +5161,7 @@ during the Middle Ages.</p></div> -<p>§ 41. The Roman Empire gradually absorbed nearly +<p>§ 41. The Roman Empire gradually absorbed nearly the whole civilised ancient world, so far as it was known to the Romans. They hardly knew of any independent civilised States outside the borders of their empire. @@ -5267,7 +5226,7 @@ influence of the Christian teaching visible.</p> <div class="sidenote"><p>The Fifteenth and Sixteenth Centuries.</p></div> -<p>§ 42. The necessity for a Law of Nations did not<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> +<p>§ 42. The necessity for a Law of Nations did not<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> arise until a multitude of States absolutely independent of one another had successfully established themselves. The process of development, starting from the Treaty @@ -5317,9 +5276,9 @@ gained some kind of international recognition. The more important of these collections are the following: The <i>Consolato del Mare</i>, a private collection made at Barcelona in Spain in the middle of the fourteenth -century; the <i>Laws of Oléron</i>, a collection, made in the +century; the <i>Laws of Oléron</i>, a collection, made in the twelfth century, of decisions given by the maritime -court of Oléron in France; the <i>Rhodian Laws</i>, a very +court of Oléron in France; the <i>Rhodian Laws</i>, a very old collection of maritime laws which probably was put together between the sixth and the eighth centuries;<a name="FNanchor_36_36" id="FNanchor_36_36"></a><a href="#Footnote_36_36" class="fnanchor">[36]</a> the <i>Tabula Amalfitana</i>, the maritime laws of the town @@ -5334,9 +5293,9 @@ dating from the fourteenth century.</p> <p>The growth of international trade caused also the rise of the controversy regarding the freedom of the high seas (see - below, § <a href="#In_antiquity248">248</a>), which indirectly influenced + below, § <a href="#In_antiquity248">248</a>), which indirectly influenced the growth of an International Law (see - below, §§ <a href="#In_antiquity248">248</a>-250).</p> + below, §§ <a href="#In_antiquity248">248</a>-250).</p> <p>(3) A third factor was the numerous leagues of trading towns for the protection of their trade and @@ -5417,7 +5376,7 @@ proposed the division of Europe into fifteen States and the linking together of these into a federation with a General Council as its highest organ, consisting of Commissioners deputed by the member States.<a name="FNanchor_39_39" id="FNanchor_39_39"></a><a href="#Footnote_39_39" class="fnanchor">[39]</a> A -fourth project was that of Émeric Crucée, who, in 1623, +fourth project was that of Émeric Crucée, who, in 1623, proposed the establishment of a Union consisting not only of the Christian States but of all States then existing<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span> in the whole of the world, with a General Council @@ -5425,33 +5384,33 @@ as its highest organ, seated at Venice, and consisting of ambassadors of all the member States of the Union.<a name="FNanchor_40_40" id="FNanchor_40_40"></a><a href="#Footnote_40_40" class="fnanchor">[40]</a></p> <div class="footnote"><p><a name="Footnote_37_37" id="Footnote_37_37"></a><a href="#FNanchor_37_37"><span class="label">[37]</span></a> See - Meyer, "Die staats- und völkerrechtlichen Ideen von -Pierre Dubois" (1909); Schücking, "Die Organisation der Welt" (1909), -pp. 28-30; Vesnitch, "Deux Précurseurs Français du Pacifism, etc." + Meyer, "Die staats- und völkerrechtlichen Ideen von +Pierre Dubois" (1909); Schücking, "Die Organisation der Welt" (1909), +pp. 28-30; Vesnitch, "Deux Précurseurs Français du Pacifism, etc." (1911), pp. 1-29.</p></div> <div class="footnote"><p><a name="Footnote_38_38" id="Footnote_38_38"></a><a href="#FNanchor_38_38"><span class="label">[38]</span></a> See - Schwitzky, "Der Europaeische Fürstenbund Georg's von -Podiebrad" (1909), and Schücking, "Die Organisation der Welt" (1909), + Schwitzky, "Der Europaeische Fürstenbund Georg's von +Podiebrad" (1909), and Schücking, "Die Organisation der Welt" (1909), pp. 32-36.</p></div> <div class="footnote"><p><a name="Footnote_39_39" id="Footnote_39_39"></a><a href="#FNanchor_39_39"><span class="label">[39]</span></a> See - Nys, "Études de Droit International et de Droit + Nys, "Études de Droit International et de Droit Politique" (1896), pp. 301-306, and Darby, "International Arbitration" (4th ed. 1904), pp. 10-21.</p></div> <div class="footnote"><p><a name="Footnote_40_40" id="Footnote_40_40"></a><a href="#FNanchor_40_40"><span class="label">[40]</span></a> See - Balch, "Le Nouveau Cynée de Émeric Crucée" (1909); + Balch, "Le Nouveau Cynée de Émeric Crucée" (1909); Darby, "International Arbitration" (4th ed. 1904), pp. 22-33; Vesnitch, -"Deux Précurseurs Français du Pacifism, etc." (1911), pp. 29-54. +"Deux Précurseurs Français du Pacifism, etc." (1911), pp. 29-54. </p><p> The schemes enumerated in the text are those which were advanced before the appearance of Grotius's work "De Jure Belli ac Pacis" (1625). The numerous plans which made their appearance afterwards—that of the Landgrave of Hesse-Rheinfels, 1666; of Charles, Duke of Lorraine, 1688; -of William Penn, 1693; of John Bellers, 1710; of the Abbé de St. Pierre +of William Penn, 1693; of John Bellers, 1710; of the Abbé de St. Pierre (1658-1743); of Kant, 1795; and of others—are all discussed in -Schücking, "Die Organisation der Welt" (1909), and Darby, "International +Schücking, "Die Organisation der Welt" (1909), and Darby, "International Arbitration" (4th ed. 1904). They are as utopian as the pre-Grotian schemes, but they are nevertheless of great importance. They preached again and again the gospel of the organisation of the Family of Nations, @@ -5470,24 +5429,24 @@ relations.</p></div> </h4> -<p class="indh1">Lawrence, §§ 29-53, and Essays, pp. 147-190—Halleck, I. pp. 12-45—Walker, -History, I. pp. 138-202—Taylor, §§ 65-95—Nys, I. pp. 19-46—Martens, -I. §§ 21-33—Fiore, I. Nos. 32-52—Calvo, I. pp. 32-101—Bonfils, Nos. -87-146—Despagnet, Nos. 20-27—Mérignhac, I. pp. 43-78—Ullmann, -§§ 15-17—Laurent, "Histoire du Droit des Gens, &c.," 14 vols. (2nd ed. -1861-1868)—Wheaton, "Histoire des Progrès du Droit des Gens en -Europe" (1841)—Bulmerincq, "Die Systematik des Völkerrechts" (1858)—Pierantoni, +<p class="indh1">Lawrence, §§ 29-53, and Essays, pp. 147-190—Halleck, I. pp. 12-45—Walker, +History, I. pp. 138-202—Taylor, §§ 65-95—Nys, I. pp. 19-46—Martens, +I. §§ 21-33—Fiore, I. Nos. 32-52—Calvo, I. pp. 32-101—Bonfils, Nos. +87-146—Despagnet, Nos. 20-27—Mérignhac, I. pp. 43-78—Ullmann, +§§ 15-17—Laurent, "Histoire du Droit des Gens, &c.," 14 vols. (2nd ed. +1861-1868)—Wheaton, "Histoire des Progrès du Droit des Gens en +Europe" (1841)—Bulmerincq, "Die Systematik des Völkerrechts" (1858)—Pierantoni, "Storia del diritto internazionale nel secolo XIX." (1876)—Hosack, "Rise and Growth of the Law of Nations" (1883), pp. 227-320—Brie, -"Die Fortschritte des Völkerrechts seit dem Wiener Congress" +"Die Fortschritte des Völkerrechts seit dem Wiener Congress" (1890)—Gareis, "Die Fortschritte des internationalen Rechts im letzten -Menschenalter" (1905)—Dupuis, "Le Principe d'Équilibre et le Concert -Européen de la Paix de Westphalie à l'Acte d'Algésiras" (1909)—Strupp, -"Urkunden zur Geschichte des Völkerrechts," 2 vols. (1911).</p> +Menschenalter" (1905)—Dupuis, "Le Principe d'Équilibre et le Concert +Européen de la Paix de Westphalie à l'Acte d'Algésiras" (1909)—Strupp, +"Urkunden zur Geschichte des Völkerrechts," 2 vols. (1911).</p> <div class="sidenote"><p>The time of Grotius.</p></div> -<p>§ 43. The seventeenth century found a multitude of +<p>§ 43. The seventeenth century found a multitude of independent States established and crowded on the comparatively small continent of Europe. Many interests and aims knitted these States together into a @@ -5550,11 +5509,11 @@ Grotius into seven periods—namely, 1648-1721, 1721-1789, <div class="sidenote"><p>The period 1648-1721.</p></div> -<p>§ 44. The ending of the Thirty Years' War through +<p>§ 44. The ending of the Thirty Years' War through the Westphalian Peace of 1648 is the first event of great importance after the death of Grotius in 1645. What makes remarkable the meetings of Osnaburg, -where the Protestant Powers met, and Münster, where +where the Protestant Powers met, and Münster, where the Catholic Powers met, is the fact that there was for the first time in history a European Congress assembled for the purpose of settling matters international by @@ -5658,7 +5617,7 @@ the Law of Nations.</p> <div class="sidenote"><p>The period 1721-1789.</p></div> -<p>§ 45. Before the end of the first half of the eighteenth +<p>§ 45. Before the end of the first half of the eighteenth century peace in Europe was again disturbed. The rivalry between Austria and Prussia, which had become a kingdom in 1701 and the throne of which Frederick II. @@ -5688,7 +5647,7 @@ fostered the growth of several rules of International Law.</p> <div class="footnote"><p><a name="Footnote_42_42" id="Footnote_42_42"></a><a href="#FNanchor_42_42"><span class="label">[42]</span></a> See - below, Vol. II. §§ <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Whereas_on_the_whole289">289</a> + below, Vol. II. §§ <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Whereas_on_the_whole289">289</a> and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_wars_of_the_French_Revolution290">290</a>, where details concerning the First and Second Armed Neutrality are @@ -5696,11 +5655,11 @@ given.</p></div> <div class="sidenote"><p>The period 1789-1815.</p></div> -<p>§ 46. All progress, however, was endangered, and +<p>§ 46. All progress, however, was endangered, and indeed the Law of Nations seemed partly non-existent,<span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span> during the time of the French Revolution and the Napoleonic wars. Although the French Convention -resolved in 1792 (as stated above, § 30) to create a +resolved in 1792 (as stated above, § 30) to create a "Declaration of the Rights of Nations," the Revolutionary Government and afterwards Napoleon I. very often showed no respect for the rules of the Law of @@ -5744,7 +5703,7 @@ Sweden became a Real Union. The old dynasties were restored in Spain, in Sardinia, in Tuscany, and in Modena, as was also the Pope in Rome. To the nineteen cantons of the Swiss Confederation were added -those of Geneva, Valais, and Neuchâtel, and this Confederation +those of Geneva, Valais, and Neuchâtel, and this Confederation was neutralised for all the future.</p> <p>But the Vienna Congress did not only establish a @@ -5755,14 +5714,14 @@ are rivers navigable from the Open Sea and running through the land of different States. It was further arranged that henceforth diplomatic agents should be divided into three classes (Ambassadors, Ministers, -Chargés d'Affaires). Lastly, a universal prohibition of +Chargés d'Affaires). Lastly, a universal prohibition of the trade in negro slaves was agreed upon.</p> <div class="sidenote"><p>The period 1815-1856.</p></div> -<p>§ 47. The period after the Vienna Congress begins +<p>§ 47. The period after the Vienna Congress begins with the so-called Holy Alliance. Already on September 26, 1815, before the second Peace of Paris, the Emperors of Russia and Austria and the King of Prussia @@ -5810,10 +5769,10 @@ interventions.</p> Martens, N.R. IV. p. 560.</p></div> <div class="footnote"><p><a name="Footnote_44_44" id="Footnote_44_44"></a><a href="#FNanchor_44_44"><span class="label">[44]</span></a> See - Brockhaus, "Das Legitimitätsprincip" (1868).</p></div> + Brockhaus, "Das Legitimitätsprincip" (1868).</p></div> <p>The famous Monroe Doctrine (see - below, § <a href="#The139">139</a>) + below, § <a href="#The139">139</a>) owes its origin to that dangerous policy of the European Powers as regards intervention, although this doctrine embraces other points besides intervention. As from @@ -5853,7 +5812,7 @@ one may say that this principle of nationality superseded in European politics the principle of legitimacy.</p> <div class="footnote"><p><a name="Footnote_45_45" id="Footnote_45_45"></a><a href="#FNanchor_45_45"><span class="label">[45]</span></a> See - Bulmerincq, "Praxis, Theorie und Codification des Völkerrechts" + Bulmerincq, "Praxis, Theorie und Codification des Völkerrechts" (1874), pp. 53-70.</p></div> <p>The last event of this period is the Crimean War, @@ -5895,7 +5854,7 @@ Spain and Mexico, however, signed the Declaration in 1907, as Japan had already done in 1886.</p> <div class="footnote"><p><a name="Footnote_46_46" id="Footnote_46_46"></a><a href="#FNanchor_46_46"><span class="label">[46]</span></a> See - below, § <a href="#In_spite_of_opposition251">251</a>.</p></div> + below, § <a href="#In_spite_of_opposition251">251</a>.</p></div> <div class="footnote"><p><a name="Footnote_47_47" id="Footnote_47_47"></a><a href="#FNanchor_47_47"><span class="label">[47]</span></a> It should be mentioned that the United States did not sign the Declaration of Paris because it did not go far enough, and did not @@ -5903,7 +5862,7 @@ interdict capture of private enemy vessels.</p></div> <div class="sidenote"><p>The period 1856-1874.</p></div> -<p>§ 48. The next period, the time from 1856 to 1874,<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> +<p>§ 48. The next period, the time from 1856 to 1874,<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> is of prominent importance for the development of the Law of Nations. Under the aegis of the principle of nationality, Austria turns in 1867 into the dual monarchy @@ -5956,7 +5915,7 @@ come to an understanding regarding such a code.</p> <div class="sidenote"><p>The period 1874-1899.</p></div> -<p>§ 49. After 1874 the principle of nationality continues +<p>§ 49. After 1874 the principle of nationality continues to exercise its influence as before. Under its aegis takes place the partial decay of the Ottoman Empire. The refusal of Turkey to introduce reforms @@ -6077,7 +6036,7 @@ by naval forces.</p> <div class="sidenote"><p>The Twentieth Century.</p></div> -<p>§ 50. <a name="Soon_after_the_Hague50" id="Soon_after_the_Hague50"></a>Soon after the Hague Peace Conference, in +<p>§ 50. <a name="Soon_after_the_Hague50" id="Soon_after_the_Hague50"></a>Soon after the Hague Peace Conference, in October 1899, war breaks out in South Africa between Great Britain and the two Boer Republics, which leads to the latter's subjugation at the end of 1901. The @@ -6152,7 +6111,7 @@ XXXIV. p. 700.</p></div> <div class="footnote"><p><a name="Footnote_57_57" id="Footnote_57_57"></a><a href="#FNanchor_57_57"><span class="label">[57]</span></a> See Martens, N.R.G. 3rd Ser. II. p. 9, and - below, § <a href="#Treaties_of_guarantee574">574</a>.</p></div> + below, § <a href="#Treaties_of_guarantee574">574</a>.</p></div> <p>The rivalry between France and Germany—the latter protesting against the position conceded to France @@ -6256,7 +6215,7 @@ signed. Of the greatest importance, however, are the second Hague Peace Conference of 1907 and the Naval Conference of London of 1898-9.</p> <div class="footnote"><p><a name="Footnote_62_62" id="Footnote_62_62"></a><a href="#FNanchor_62_62"><span class="label">[62]</span></a> See - Moore, VI. § 969; Fried, "Pan-America" (1910); Barrett, + Moore, VI. § 969; Fried, "Pan-America" (1910); Barrett, "The Pan-American Union" (1911).</p></div> <div class="footnote"><p><a name="Footnote_63_63" id="Footnote_63_63"></a><a href="#FNanchor_63_63"><span class="label">[63]</span></a> See @@ -6354,7 +6313,7 @@ settled by arbitration.<a name="FNanchor_67_67" id="FNanchor_67_67"></a><a href= vols. (1911).</p></div> <div class="footnote"><p><a name="Footnote_66_66" id="Footnote_66_66"></a><a href="#FNanchor_66_66"><span class="label">[66]</span></a> See - below, § <a href="#Th476">476</a>.</p></div> + below, § <a href="#Th476">476</a>.</p></div> <div class="footnote"><p><a name="Footnote_67_67" id="Footnote_67_67"></a><a href="#FNanchor_67_67"><span class="label">[67]</span></a> The general arbitration treaties concluded in August 1911 by the United States with Great Britain and France have not yet been @@ -6362,7 +6321,7 @@ ratified, as the consent of the American Senate is previously required.</p></div <div class="sidenote"><p>Six Lessons of the History of the Law of Nations.</p></div> -<p>§ 51. It is the task of history, not only to show how +<p>§ 51. It is the task of history, not only to show how things have grown in the past, but also to extract a moral for the future out of the events of the past. Six morals can be said to be deduced from the history of @@ -6386,9 +6345,9 @@ Napoleon I. shows clearly the soundness of this principle.<a name="FNanchor_68_6 necessity of a balance of power is generally recognised, there are some writers of great authority who vigorously oppose this principle, as, for instance, Bulmerincq, "Praxis, Theorie und Codification des -Völkerrechts" (1874), pp. 40-50. On the principle itself see Donnadieu, -"Essai sur la Théorie de l'Équilibre" (1900), and Dupuis, "Le Principe -d'Équilibre et de Concert Européen" (1909).</p></div> +Völkerrechts" (1874), pp. 40-50. On the principle itself see Donnadieu, +"Essai sur la Théorie de l'Équilibre" (1900), and Dupuis, "Le Principe +d'Équilibre et de Concert Européen" (1909).</p></div> <p>(2) The second moral is that International Law can develop progressively only when international politics,<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span> @@ -6444,7 +6403,7 @@ international intercourse firmer, broader, and more manifest than before.<a name="FNanchor_69_69" id="FNanchor_69_69"></a><a href="#Footnote_69_69" class="fnanchor">[69]</a></p> <div class="footnote"><p><a name="Footnote_69_69" id="Footnote_69_69"></a><a href="#FNanchor_69_69"><span class="label">[69]</span></a> See - Oppenheim, "Die Zukunft des Völkerrechts" (1911) where + Oppenheim, "Die Zukunft des Völkerrechts" (1911) where some progressive steps are discussed which the future may realise.</p></div> <p>(5) <a name="The_fifth_moral5of51" id="The_fifth_moral5of51"></a>The fifth moral is that the progress of International @@ -6473,7 +6432,7 @@ as only an international Court can supply.</p> <div class="footnote"><p><a name="Footnote_70_70" id="Footnote_70_70"></a><a href="#FNanchor_70_70"><span class="label">[70]</span></a> I name these schools "diplomatic" and "legal" for want of better denomination. They must, however, not be confounded with the three schools of the "Naturalists," "Positivists," and "Grotians," -details concerning which will be given below, §§ 55-57.<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span></p></div> +details concerning which will be given below, §§ 55-57.<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span></p></div> <p>(6) <a name="Th6of51" id="Th6of51"></a>The sixth, and last, moral is that the progressive development of International Law depends chiefly upon @@ -6499,28 +6458,28 @@ factors working in its favour.</p> </h4> -<p class="indh1">Phillimore, I., Preface to the first edition—Lawrence, §§ 31-36—Manning, +<p class="indh1">Phillimore, I., Preface to the first edition—Lawrence, §§ 31-36—Manning, pp. 21-65—Halleck, I. pp. 12, 15, 18, 22, 25, 29, 34, 42—Walker, History, I. pp. 203-337, and "The Science of International Law" -(1893), <i>passim</i>—Taylor, §§ 37-48—Wheaton, §§ 4-13—Rivier in Holtzendorff, -I. pp. 337-475—Nys, I. pp. 213-328—Martens, I. §§ 34-38—Fiore, +(1893), <i>passim</i>—Taylor, §§ 37-48—Wheaton, §§ 4-13—Rivier in Holtzendorff, +I. pp. 337-475—Nys, I. pp. 213-328—Martens, I. §§ 34-38—Fiore, I. Nos. 53-88, 164-185, 240-272—Calvo, I. pp. 27-34, 44-46, 51-55, 61-63, 70-73, 101-137—Bonfils, Nos. 147-153—Despagnet, Nos. 28-35—Ullmann, -§ 18—Kaltenborn, "Die Vorläufer des Hugo Grotius" (1848)—Holland, +§ 18—Kaltenborn, "Die Vorläufer des Hugo Grotius" (1848)—Holland, Studies, pp. 1-58, 168-175—Westlake, Chapters, pp. 23-77—Ward, "Enquiry into the Foundation and History of the Law of -Nations," 2 vols. (1795)—Nys, "Le droit de la guerre et les précurseurs -de Grotius" (1882), "Notes pour servir à l'histoire ... du droit +Nations," 2 vols. (1795)—Nys, "Le droit de la guerre et les précurseurs +de Grotius" (1882), "Notes pour servir à l'histoire ... du droit international en Angleterre" (1888), "Les origines du droit international" -(1894)—Wheaton, "Histoire des progrès du droit des gens en +(1894)—Wheaton, "Histoire des progrès du droit des gens en Europe" (1841)—Oppenheim in A.J. I. (1908), pp. 313-356—Pollock in the Cambridge Modern History, vol. XII. (1910), pp. 703-729—See also -the bibliographies enumerated below in § <a href="#BIBLIOGRAPHIES61">61</a>.</p> +the bibliographies enumerated below in § <a href="#BIBLIOGRAPHIES61">61</a>.</p> <div class="sidenote"><p>Forerunners of Grotius.</p></div> -<p>§ 52. The science of the modern Law of Nations +<p>§ 52. The science of the modern Law of Nations commences from Grotius's work, "De Jure Belli ac Pacis libri III.," because in it a fairly complete system<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> of International Law was for the first time built up @@ -6568,13 +6527,13 @@ was taken, not by Grotius, but by Gentilis."</p> Professor Holland. On Gentilis, see Holland, Studies, pp. 1-391; Westlake, Chapters, pp. 33-36; Walker, History, I. pp. 249-277; Thamm, "Albericus Gentilis und seine Bedeutung -für das Völkerrecht" (1896); Phillipson in <i>The Journal of the Society +für das Völkerrecht" (1896); Phillipson in <i>The Journal of the Society of Comparative Legislation</i>, New Series, XII. (1912), pp. 52-80; Balch in A.J. V. (1911), pp. 665-679.</p></div> <div class="sidenote"><p>Grotius.</p></div> -<p>§ 53. <a name="Although_Grotius_owes_much53" id="Although_Grotius_owes_much53"></a>Although Grotius owes much to Gentilis, he +<p>§ 53. <a name="Although_Grotius_owes_much53" id="Although_Grotius_owes_much53"></a>Although Grotius owes much to Gentilis, he is nevertheless the greater of the two and bears by right the title of "Father of the Law of Nations." Hugo Grotius was born at Delft in Holland in 1583. @@ -6636,11 +6595,11 @@ of "Father of the Law of Nations," but also that of <div class="footnote"><p><a name="Footnote_73_73" id="Footnote_73_73"></a><a href="#FNanchor_73_73"><span class="label">[73]</span></a> See details with regard to the controversy concerning the freedom of the open sea - below, §§ <a href="#In_antiquity248">248</a>-250. Grotius's treatise "Mare + below, §§ <a href="#In_antiquity248">248</a>-250. Grotius's treatise "Mare liberum" is—as we know now—the twelfth chapter of the work "De jure praedae," written in 1604 but never published by Grotius; it was not printed till 1868. See - below, § <a href="#Queen_Elizabeths_attitude250">250</a>.</p></div> + below, § <a href="#Queen_Elizabeths_attitude250">250</a>.</p></div> <p>Grotius, as a child of his time, could not help starting from the Law of Nature, since his intention was to find @@ -6704,7 +6663,7 @@ translation is that of 1854 by William Whewell.</p></div> <div class="sidenote"><p>Zouche.</p></div> -<p>§ 54. But the modern Law of Nations has another, +<p>§ 54. But the modern Law of Nations has another, though minor, founder besides Grotius, and this is an Englishman, Richard Zouche<a name="FNanchor_76_76" id="FNanchor_76_76"></a><a href="#Footnote_76_76" class="fnanchor">[76]</a> (1590-1660), Professor of Civil Law at Oxford and a Judge of the Admiralty @@ -6754,11 +6713,11 @@ international law. See Wynne, "Life of Sir Leoline Jenkins," 2 vols. <div class="footnote"><p><a name="Footnote_78_78" id="Footnote_78_78"></a><a href="#FNanchor_78_78"><span class="label">[78]</span></a> These three schools of writers must not be confounded with the division of the present international jurists into the diplomatic and legal schools; see - above, § <a href="#The_fifth_moral5of51">51, No. 5</a>.</p></div> + above, § <a href="#The_fifth_moral5of51">51, No. 5</a>.</p></div> <div class="sidenote"><p>The Naturalists.</p></div> -<p>§ 55. "Naturalists," or "Deniers of the Law of +<p>§ 55. "Naturalists," or "Deniers of the Law of Nations," is the appellation of those writers who deny that there is any positive Law of Nations whatever as the outcome of custom or treaties, and who maintain @@ -6781,7 +6740,7 @@ of Nations exists which has the force of real law (<i>quod quidem legis proprie dictae vim habeat, quae gentes tamquam a superiore profecta stringat</i>).</p> -<div class="footnote"><p><a name="Footnote_79_79" id="Footnote_79_79"></a><a href="#FNanchor_79_79"><span class="label">[79]</span></a> De jure naturae et gentium, II. c. 3, § 22.<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span></p></div> +<div class="footnote"><p><a name="Footnote_79_79" id="Footnote_79_79"></a><a href="#FNanchor_79_79"><span class="label">[79]</span></a> De jure naturae et gentium, II. c. 3, § 22.<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span></p></div> <p>The most celebrated follower of Pufendorf is the German philosopher, Christian Thomasius (1655-1728), @@ -6802,7 +6761,7 @@ mentioned.</p> <div class="sidenote"><p>The Positivists.</p></div> -<p>§ 56. The "Positivists" are the antipodes of the +<p>§ 56. The "Positivists" are the antipodes of the Naturalists. They include all those writers who, in contradistinction to Hobbes and Pufendorf, not only defend the existence of a positive Law of Nations as @@ -6848,10 +6807,10 @@ Comparative Legislation</i>, New Series, IX. (1908), pp. 27-49.</p></div> <p>Johann Jakob Moser (1701-1785), a German Professor of Law, published many books concerning the Law of Nations, of which three must be mentioned: -(1) "Grundsätze des jetzt üblichen Völkerrechts in -Friedenszeiten," 1750; (2) "Grundsätze des jetzt -üblichen Völkerrechts in Kriegszeiten," 1752; (3) -"Versuch des neuesten europäischen Völkerrechts in +(1) "Grundsätze des jetzt üblichen Völkerrechts in +Friedenszeiten," 1750; (2) "Grundsätze des jetzt +üblichen Völkerrechts in Kriegszeiten," 1752; (3) +"Versuch des neuesten europäischen Völkerrechts in Friedens- und Kriegszeiten," 1777-1780. Moser's books are magazines of an enormous number of facts which are of the greatest value for the positive Law of Nations. @@ -6861,16 +6820,16 @@ since to him the Law of Nations is positive law only and based on international custom and treaties.</p> <p>Georg Friedrich von Martens (1756-1821), Professor -of Law in the University of Göttingen, also published +of Law in the University of Göttingen, also published many books concerning the Law of Nations. The most -important is his "Précis du droit des gens moderne +important is his "Précis du droit des gens moderne de l'Europe," published in 1789, of which William<span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span> Cobbett published in 1795 at Philadelphia an English translation, and of which as late as 1864 appeared a -new edition at Paris with notes by Charles Vergé. +new edition at Paris with notes by Charles Vergé. Martens began the celebrated collection of treaties which goes under the title "Martens, Recueil des -Traités," and is continued to our days.<a name="FNanchor_81_81" id="FNanchor_81_81"></a><a href="#Footnote_81_81" class="fnanchor">[81]</a> The influence +Traités," and is continued to our days.<a name="FNanchor_81_81" id="FNanchor_81_81"></a><a href="#Footnote_81_81" class="fnanchor">[81]</a> The influence of Martens was great, and even at the present time is considerable. He is not an exclusive Positivist, since he does not deny the existence of natural Law of Nations, @@ -6881,12 +6840,12 @@ builds up historically on international custom and treaties.</p> <div class="footnote"><p><a name="Footnote_81_81" id="Footnote_81_81"></a><a href="#FNanchor_81_81"><span class="label">[81]</span></a> Georg Friedrich von Martens is not to be confounded with -his nephew Charles de Martens, the author of the "Causes célèbres de +his nephew Charles de Martens, the author of the "Causes célèbres de droit des gens" and of the "Guide diplomatique."</p></div> <div class="sidenote"><p>The Grotians.</p></div> -<p>§ 57. The "Grotians" stand midway between the +<p>§ 57. The "Grotians" stand midway between the Naturalists and the Positivists. They keep up the distinction of Grotius between the natural and the voluntary Law of Nations, but, in contradistinction to @@ -6928,18 +6887,18 @@ tacitly imposed by the <i>civitas gentium maxima</i>, the world-State, upon the member States.</p> <p>Emerich de Vattel<a name="FNanchor_82_82" id="FNanchor_82_82"></a><a href="#Footnote_82_82" class="fnanchor">[82]</a> (1714-1767), a Swiss from -Neuchâtel, who entered into the service of Saxony and +Neuchâtel, who entered into the service of Saxony and became her Minister at Berne, did not in the main intend any original work, but undertook the task of introducing Wolff's teachings concerning the Law of Nations into the courts of Europe and to the diplomatists. He published in 1758 his book, "Le droit des gens, ou -principes de la loi naturelle appliqués à la conduite et +principes de la loi naturelle appliqués à la conduite et aux affaires des Nations et des Souverains." But it must be specially mentioned that Vattel expressly rejects Wolff's conception of the <i>civitas gentium maxima</i> in the preface to his book. Numerous editions of -Vattel's book have appeared, and as late as 1863 Pradier-Fodéré +Vattel's book have appeared, and as late as 1863 Pradier-Fodéré re-edited it at Paris. An English translation by Chitty appeared in 1834 and went through several editions. His influence was very great, and in diplomatic<span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span> @@ -6952,7 +6911,7 @@ Comparative Legislation</i>, New Series, X. (1909), pp. 17-39.</p></div> <div class="sidenote"><p>Treatises of the Nineteenth and Twentieth Centuries.</p></div> -<p>§ 58. Some details concerning the three schools of +<p>§ 58. Some details concerning the three schools of the Naturalists, Positivists, and Grotians were necessary, because these schools are still in existence. I do not, however, intend to give a list of writers on special @@ -7043,69 +7002,69 @@ Law, 1901; 5th ed. 1910.</p> <p class="center">(3) <span class="smcap">French Treatises</span></p> -<p class="indh"><i>Funck-Brentano et Albert Sorel</i>: Précis du Droit des Gens, +<p class="indh"><i>Funck-Brentano et Albert Sorel</i>: Précis du Droit des Gens, 1877; 2nd ed. 1894.</p> -<p class="indh"><i>P. Pradier-Fodéré</i>: Traité de Droit International Public, 8 vols. +<p class="indh"><i>P. Pradier-Fodéré</i>: Traité de Droit International Public, 8 vols. 1885-1906.</p> <p class="indh"><i>Henry Bonfils</i>: Manuel de Droit International Public, 1894; 5th ed. by Fauchille, 1908.</p> -<p class="indh"><i>Georges Bry</i>: Précis élémentaire de Droit International Public; +<p class="indh"><i>Georges Bry</i>: Précis élémentaire de Droit International Public; 5th ed. 1906.</p> <p class="indh"><i>Frantz Despagnet</i>: Cours de Droit International Public, 1894; 4th ed. by De Boeck, 1910.</p> -<p class="indh"><i>Robert Piédelièvre</i>: Précis de Droit International Public, 2 vols. +<p class="indh"><i>Robert Piédelièvre</i>: Précis de Droit International Public, 2 vols. 1894-1895.</p> -<p class="indh"><i>A. Mérignhac</i>: Traité de Droit Public International, vol. I. +<p class="indh"><i>A. Mérignhac</i>: Traité de Droit Public International, vol. I. 1905; vol. II. 1907.</p> <p class="center">(4) <span class="smcap">German Treatises</span></p> -<p class="indh"><i>Theodor Schmalz</i>: Europäisches Völkerrecht, 1816.</p> +<p class="indh"><i>Theodor Schmalz</i>: Europäisches Völkerrecht, 1816.</p> -<p class="indh"><i>Johann Ludwig Klüber</i>: Droit des Gens moderne, 1819; -German ed. under the title of Europäisches Völkerrecht in +<p class="indh"><i>Johann Ludwig Klüber</i>: Droit des Gens moderne, 1819; +German ed. under the title of Europäisches Völkerrecht in 1821; last German ed. by Morstadt in 1851, and last French ed. by Ott in 1874.</p> <p class="indh"><span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span></p> -<p class="indh"><i>Karl Heinrich Ludwig Poelitz</i>: Practisches (europäisches) -Völkerrecht, 1828.</p> +<p class="indh"><i>Karl Heinrich Ludwig Poelitz</i>: Practisches (europäisches) +Völkerrecht, 1828.</p> -<p class="indh"><i>Friedrich Saalfeld</i>: Handbuch des positiven Völkerrechts, +<p class="indh"><i>Friedrich Saalfeld</i>: Handbuch des positiven Völkerrechts, 1833.</p> -<p class="indh"><i>August Wilhelm Heffter</i>: Das europäische Völkerrecht der +<p class="indh"><i>August Wilhelm Heffter</i>: Das europäische Völkerrecht der Gegenwart, 1844; 8th ed. by Geffcken, 1888; French translations by Bergson in 1851 and Geffcken in 1883.</p> -<p class="indh"><i>Heinrich Bernhard Oppenheim</i>: System des Völkerrechts, 1845; +<p class="indh"><i>Heinrich Bernhard Oppenheim</i>: System des Völkerrechts, 1845; 2nd ed. 1866.</p> -<p class="indh"><i>Johann Caspar Bluntschli</i>: Das moderne Völkerrecht der +<p class="indh"><i>Johann Caspar Bluntschli</i>: Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt, 1868; 3rd ed. 1878; French translation by Lardy, 5th ed. 1895.</p> -<p class="indh"><i>Adolf Hartmann</i>: Institutionen des praktischen Völkerrechts +<p class="indh"><i>Adolf Hartmann</i>: Institutionen des praktischen Völkerrechts in Friedenszeiten, 1874; 2nd ed. 1878.</p> -<p class="indh"><i>Franz von Holtzendorff</i>: Handbuch des Völkerrechts, 4 vols. +<p class="indh"><i>Franz von Holtzendorff</i>: Handbuch des Völkerrechts, 4 vols. 1885-1889. Holtzendorff is the editor and a contributor, but there are many other contributors.</p> -<p class="indh"><i>August von Bulmerincq</i>: Das Völkerrecht, 1887.</p> +<p class="indh"><i>August von Bulmerincq</i>: Das Völkerrecht, 1887.</p> -<p class="indh"><i>Karl Gareis</i>: Institutionen des Völkerrechts, 1888; 2nd. ed. 1901.</p> +<p class="indh"><i>Karl Gareis</i>: Institutionen des Völkerrechts, 1888; 2nd. ed. 1901.</p> -<p class="indh"><i>E. Ullmann</i>: Völkerrecht, 1898; 2nd ed. 1908.</p> +<p class="indh"><i>E. Ullmann</i>: Völkerrecht, 1898; 2nd ed. 1908.</p> -<p class="indh"><i>Franz von Liszt</i>: Das Völkerrecht, 1898; 6th ed. 1910.</p> +<p class="indh"><i>Franz von Liszt</i>: Das Völkerrecht, 1898; 6th ed. 1910.</p> <p class="center">(5) <span class="smcap">Italian Treatises</span></p> @@ -7136,60 +7095,60 @@ pace, 2 vols. 1867-1875; French translation by Montanari-Pevest, <p class="indh"><i>Giovanni Lomonaco</i>: Trattato di diritto internazionale publico, 1905.</p> -<p class="indh"><i>Giulio Diena</i>: Principî di diritto internazionale, Parte Prima, +<p class="indh"><i>Giulio Diena</i>: Principî di diritto internazionale, Parte Prima, Diritto internaziole publico, 1908.<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span></p> <p class="center">(6) <span class="smcap">Spanish And Spanish-american Treatises</span></p> -<p class="indh"><i>Andrés Bello</i>: Principios de derecho de gentes (internacional), +<p class="indh"><i>Andrés Bello</i>: Principios de derecho de gentes (internacional), 1832; last ed. in 2 vols. by Silva, 1883.</p> -<p class="indh"><i>José Maria de Pando</i>: Elementos del derecho internacional, +<p class="indh"><i>José Maria de Pando</i>: Elementos del derecho internacional, published after the death of the author, 1843-1844.</p> -<p class="indh"><i>Antonio Riquelme</i>: Elementos de derecho público internacional, +<p class="indh"><i>Antonio Riquelme</i>: Elementos de derecho público internacional, etc.; 2 vols. 1849.</p> <p class="indh"><i>Carlos Calvo</i>: Le Droit International, etc. (first edition in Spanish, following editions in French), 1868; 5th ed. in 6 vols. 1896.</p> -<p class="indh"><i>Amancio Alcorta</i>: Curso de derecho internacional público, vol. I. +<p class="indh"><i>Amancio Alcorta</i>: Curso de derecho internacional público, vol. I. 1886; French translation by Lehr, 1887.</p> <p class="indh"><i>Marquis de Olivart</i>: Trattato y notas de derecho internacional -público, 4 vols. 1887; 4th ed. 1903-1904.</p> +público, 4 vols. 1887; 4th ed. 1903-1904.</p> -<p class="indh"><i>Luis Gesteso y Acosta</i>: Curso de derecho internacional público, +<p class="indh"><i>Luis Gesteso y Acosta</i>: Curso de derecho internacional público, 1894.</p> <p class="indh"><i>Miguel Cruchaga</i>: Nociones de derecho internacional, 1899; 2nd ed. 1902.</p> <p class="indh"><i>Manuel Torres Campos</i>: Elementos de derecho internacional -público; 2nd. ed. 1904.</p> +público; 2nd. ed. 1904.</p> <p class="center">(7) <span class="smcap">Treatises of Authors of other Nationalities</span></p> -<p class="indh"><i>Frederick Kristian Bornemann</i>: Forelæsninger over den positive +<p class="indh"><i>Frederick Kristian Bornemann</i>: Forelæsninger over den positive Folkeret, 1866.</p> -<p class="indh"><i>Friedrich von Martens</i>: Völkerrecht, 2 vols. 1883; a German +<p class="indh"><i>Friedrich von Martens</i>: Völkerrecht, 2 vols. 1883; a German translation by Berghohm of the Russian original. A French -translation by Léo in 3 vols. appeared in the same year. +translation by Léo in 3 vols. appeared in the same year. The Russian original went through its 5th ed. in 1905.</p> <p class="indh"><i>Jan Helenus Ferguson</i>: Manual of International Law, etc., 2 vols. 1884. The author is Dutch, but the work is written in English.</p> -<p class="indh"><i>Alphonse Rivier</i>: Lehrbuch des Völkerrechts, 1894; 2nd ed. +<p class="indh"><i>Alphonse Rivier</i>: Lehrbuch des Völkerrechts, 1894; 2nd ed. 1899, and the larger work in two vols. under the title: Principes du Droit des Gens, 1896. The author of these two excellent books was a Swiss who taught International Law at the University of Brussels.</p> -<p class="indh"><i>H. Matzen</i>: Forelæsninger over den positive Folkeret, 1900.</p> +<p class="indh"><i>H. Matzen</i>: Forelæsninger over den positive Folkeret, 1900.</p> <p class="indh"><i>Ernest Nys</i>: Le droit international, 3 vols. 1904-1906. The author of this exhaustive treatise is a Belgian jurist whose @@ -7207,7 +7166,7 @@ referring my readers to this learned work.</p></div> <div class="sidenote"><p>The Science of the Law of Nations in the Nineteenth and Twentieth Centuries as represented by treatises.</p></div> -<p>§ 59. The Science of the Law of Nations, as left by +<p>§ 59. The Science of the Law of Nations, as left by the French Revolution, developed progressively during the nineteenth century under the influence of three factors. The first factor is the endeavour, on the @@ -7226,7 +7185,7 @@ still in the field, but Positivism<a name="FNanchor_84_84" id="FNanchor_84_84">< gradually the upper hand, until at the end it may be said to be victorious, without, however, being omnipotent. The most important writer<a name="FNanchor_85_85" id="FNanchor_85_85"></a><a href="#Footnote_85_85" class="fnanchor">[85]</a> up to 1836 is -Klüber, who may be called a Positivist in the same +Klüber, who may be called a Positivist in the same sense as Martens, for he also applies the natural Law of Nations to fill up the gaps of the positive. Wheaton appears in 1836 with his "Elements," and, although an @@ -7243,7 +7202,7 @@ book excels all former ones, and all the following authors<span class="pagenum"> are in a sense standing on his shoulders. In Phillimore, Great Britain sends in 1854 a powerful author into the arena, who may, on the whole, be called a Positivist of -the same kind as Martens and Klüber. Generations to +the same kind as Martens and Klüber. Generations to come will consult Phillimore's volumes on account of the vast amount of material they contain and the sound judgment they exhibit. And the same is valid with @@ -7279,7 +7238,7 @@ influence of the downfall of the theory of the Law of Nature becomes visible in the treatises on the Law of Nations, and therefore real positivistic treatises make their appearance. For the Positivism of Zouche, -Bynkershoek, Martens, Klüber, Heffter, Phillimore, and +Bynkershoek, Martens, Klüber, Heffter, Phillimore, and Twiss was no real Positivism, since these authors recognised a natural Law of Nations, although they did not make much use of it. Real Positivism must entirely @@ -7292,7 +7251,7 @@ Only a positive Law of Nations can be a branch of the science of law.</p> <p>The first real positive treatise known to me is Hartmann's -"Institutionen des praktischen Völkerrechts in +"Institutionen des praktischen Völkerrechts in Friedenszeiten," which appeared in 1874, but is hardly known outside Germany. In 1880 Hall's treatise appeared, and at once won the attention of the whole @@ -7311,7 +7270,7 @@ of which appeared in 1885. Holtzendorff himself is the editor and at the same time a contributor to the work, but there are many other contributors, each of them dealing exhaustively with a different part of the Law -of Nations. The copious work of Pradier-Fodéré, +of Nations. The copious work of Pradier-Fodéré, which also began to appear in 1885, is far from being positive, although it has its merits. Wharton's three volumes, which appeared in 1886, are not a treatise, @@ -7319,7 +7278,7 @@ but contain the international practice of the United States. Bulmerincq's book, which appeared in 1887, gives a good survey of International Law from the positive point of view. In 1894 three French jurists, -Bonfils, Despagnet, and Piédelievre, step into the arena; +Bonfils, Despagnet, and Piédelievre, step into the arena; their treatises are comprehensive and valuable, but not absolutely positive. On the other hand, the English authors Lawrence and Walker, whose excellent manuals<span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span> @@ -7356,14 +7315,14 @@ of the problems.<a name="FNanchor_86_86" id="FNanchor_86_86"></a><a href="#Footn from the positive standpoint, see Oppenheim in A.J. II. (1908), pp. 313-356.<span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span></p></div> -<p class="center">§ 60. COLLECTIONS OF TREATIES</p> +<p class="center">§ 60. COLLECTIONS OF TREATIES</p> <p>(1) <span class="smcap">General Collections</span></p> <p class="indh"><i>Leibnitz</i>: Codex iuris gentium diplomaticus (1693); Mantissa codicis iuris gentium diplomatici (1700).</p> -<p class="indh"><i>Bernard</i>: Recueil des traités, etc. 4 vols. (1700).</p> +<p class="indh"><i>Bernard</i>: Recueil des traités, etc. 4 vols. (1700).</p> <p class="indh"><i>Rymer</i>: Foedera etc. inter reges angliae et alios quosvis imperatores ... ab anno 1101 ad nostra usque tempora @@ -7372,7 +7331,7 @@ from 1101-1654).</p> <p class="indh"><i>Dumont</i>: Corps universel diplomatique, etc., 8 vols. (1726-1731).</p> -<p class="indh"><i>Rousset</i>: Supplément au corps universel diplomatique de +<p class="indh"><i>Rousset</i>: Supplément au corps universel diplomatique de Dumont, 5 vols. (1739).</p> <p class="indh"><i>Schmauss</i>: Corpus iuris gentium academicum (1730).</p> @@ -7380,16 +7339,16 @@ Dumont, 5 vols. (1739).</p> <p class="indh"><i>Wenck</i>: Codex iuris gentium recentissimi, 3 vols. (1781, 1786, 1795).</p> -<p class="indh"><i>Martens</i>: Recueil de Traités d'Alliance, etc., 8 vols. (1791-1808); -Nouveau Recueil de Traités d'Alliance, etc., 16 vols. (1817-1842); -Nouveaux Suppléments au Recueil de Traités et +<p class="indh"><i>Martens</i>: Recueil de Traités d'Alliance, etc., 8 vols. (1791-1808); +Nouveau Recueil de Traités d'Alliance, etc., 16 vols. (1817-1842); +Nouveaux Suppléments au Recueil de Traités et d'autres Actes remarquables, etc., 3 vols. (1839-1842); Nouveau -Recueil Général de Traités, Conventions et autres Actes +Recueil Général de Traités, Conventions et autres Actes remarquables, etc., 20 vols. (1843-1875); Nouveau Recueil -Général de Traités et autres Actes relatifs aux Rapports de -droit international, Deuxième Série, 35 vols. (1876-1908); -Nouveau Recueil Général de Traités et autres Actes relatifs -aux Rapports de droit international, Troisième Série, vol. +Général de Traités et autres Actes relatifs aux Rapports de +droit international, Deuxième Série, 35 vols. (1876-1908); +Nouveau Recueil Général de Traités et autres Actes relatifs +aux Rapports de droit international, Troisième Série, vol. I. 1908, continued up to date. Present editor, Heinrich Triepel, professor in the University of Kiel in Germany.</p> @@ -7401,7 +7360,7 @@ continuation by Geffcken, 3 vols. (1857-1885).</p> <p class="indh"><i>British and Foreign State Papers</i>: Vol. I. 1814, continued up to date, one volume yearly.</p> -<p class="indh"><i>Das Staatsarchiv</i>: Sammlung der officiellen Actenstücke zur +<p class="indh"><i>Das Staatsarchiv</i>: Sammlung der officiellen Actenstücke zur Geschichte der Gegenwart, vol. I. 1861, continued up to date, one volume yearly.</p> @@ -7410,10 +7369,10 @@ et de droit international, first and second series, 1861-1900, third series from 1901 continued up to date (4 vols. yearly).</p> -<p class="indh"><i>Recueil International des Traités du XX^e Siècle</i>: Edited by Descamps +<p class="indh"><i>Recueil International des Traités du XX^e Siècle</i>: Edited by Descamps and Renault since 1901.</p> -<p class="indh"><i>Strupp</i>: Urkunden zur Geschichte des Völkerrechts, 2 vols. (1911).<span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span></p> +<p class="indh"><i>Strupp</i>: Urkunden zur Geschichte des Völkerrechts, 2 vols. (1911).<span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span></p> @@ -7431,16 +7390,16 @@ date).</p> <p class="indh"><i>Treaty Series</i>: Vol. I. 1892, and a volume every year.</p> -<p class="center"> § 61. <a name="BIBLIOGRAPHIES61" id="BIBLIOGRAPHIES61"></a>BIBLIOGRAPHIES</p> +<p class="center"> § 61. <a name="BIBLIOGRAPHIES61" id="BIBLIOGRAPHIES61"></a>BIBLIOGRAPHIES</p> -<p class="indh"><i>Ompteda</i>: Litteratur des gesammten Völkerrechts, 2 vols. +<p class="indh"><i>Ompteda</i>: Litteratur des gesammten Völkerrechts, 2 vols. (1785).</p> -<p class="indh"><i>Kamptz</i>: Neue Litteratur des Völkerrechts seit 1784 (1817).</p> +<p class="indh"><i>Kamptz</i>: Neue Litteratur des Völkerrechts seit 1784 (1817).</p> -<p class="indh"><i>Klüber</i>: Droit des gens moderne de l'Europe (Appendix) (1819).</p> +<p class="indh"><i>Klüber</i>: Droit des gens moderne de l'Europe (Appendix) (1819).</p> -<p class="indh"><i>Miruss</i>: Das Europäische Gesandschaftsrecht, vol. II. (1847).</p> +<p class="indh"><i>Miruss</i>: Das Europäische Gesandschaftsrecht, vol. II. (1847).</p> <p class="indh"><i>Mohl</i>: Geschichte und Litteratur des Staatswissenschaften, vol. I. pp. 337-475 (1855).</p> @@ -7449,29 +7408,29 @@ vol. I. pp. 337-475 (1855).</p> (6th ed. 1891), Appendix I.</p> <p class="indh"><i>Rivier</i>: pp. 393-523 of vol. I. of Holtzendorff's Handbuch des -Völkerrechts (1885).</p> +Völkerrechts (1885).</p> <p class="indh"><i>Stoerk</i>: Die Litteratur des internationalen Rechts von 1884-1894 (1896).</p> -<p class="indh"><i>Olivart</i>: Catalogue d'une bibliothèque de droit international +<p class="indh"><i>Olivart</i>: Catalogue d'une bibliothèque de droit international (1899).</p> <p class="indh"><i>Nys</i>: Le droit international, vol. I. (1904), pp. 213-328.</p> -<p class="center">§ 62. PERIODICALS</p> +<p class="center">§ 62. PERIODICALS</p> -<p class="indh">Revue de droit international et de législation comparée. It +<p class="indh">Revue de droit international et de législation comparée. It has appeared in Brussels since 1869, one volume yearly. Present editor, Edouard Rolin.</p> -<p class="indh">Revue générale de droit international public. It has appeared in +<p class="indh">Revue générale de droit international public. It has appeared in Paris since 1894, one volume yearly. Founder and present editor, Paul Fauchille.</p> -<p class="indh">Zeitschrift für internationales Recht. It has appeared in Leipzig +<p class="indh">Zeitschrift für internationales Recht. It has appeared in Leipzig since 1891, one volume yearly. Present editor, Theodor Niemeyer.<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span></p> @@ -7490,7 +7449,7 @@ Editor, Marquis de Olivart.</p> since 1906, one volume yearly. Editors, D. Anzilotti, A. Ricci-Busatti, and L. A. Senigallia.</p> -<p class="indh">Zeitschrift für Völkerrecht und Bundesstaatsrecht. It has appeared +<p class="indh">Zeitschrift für Völkerrecht und Bundesstaatsrecht. It has appeared in Breslau since 1906, one volume yearly. Editors, Joseph Kohler, L. Oppenheim, and F. Holldack.</p> @@ -7499,16 +7458,16 @@ Washington since 1907, one volume yearly. Editor, James Brown Scott.</p> <p class="indh">Essays and Notes concerning International Law frequently -appear also in the Journal du droit international privé et de -la Jurisprudence comparée (Clunet), the Archiv für öffentliches +appear also in the Journal du droit international privé et de +la Jurisprudence comparée (Clunet), the Archiv für öffentliches Recht, The Law Quarterly Review, The Law Magazine and Review, The Juridical Review, The Journal of the Society of Comparative Legislation, The American Law Review, the Annalen des deutschen Reiches, the Zeitschrift -für das privat- und öffentliche Recht der Gegenwart -(Grünhut), the Revue de droit public et de la science politique +für das privat- und öffentliche Recht der Gegenwart +(Grünhut), the Revue de droit public et de la science politique (Larnaude), the Annales des sciences politiques, the Archivio -giuridico, the Jahrbuch des öffentlichen Rechts, and many +giuridico, the Jahrbuch des öffentlichen Rechts, and many others.</p> @@ -7532,18 +7491,18 @@ others.</p> </h4> -<p class="indh">Vattel, I. §§ 1-12—Hall, § 1—Lawrence, § 42—Phillimore, I. §§ 61-69—Twiss, -I. §§ 1-11—Taylor, § 117—Walker, § 1—Westlake, I. pp. 1-5, 20-21—Wheaton, -§§ 16-21—Ullmann, § 19—Heffter, § 15—Holtzendorff in -Holtzendorff, II. pp. 5-11—Bonfils, Nos. 160-164—Despagnet, Nos. 69-74—Pradier-Fodéré, -I. Nos. 43-81—Nys, I. pp. 329-356—Rivier, I. § 3—Calvo, -I. §§ 39-41—Fiore, I. Nos. 305-309, and Code, Nos. 51-77—Martens, -I. §§ 53-54—Mérignhac, I. pp. 114-231, and II. pp. 5, 154-221—Moore, -I. § 3.</p> +<p class="indh">Vattel, I. §§ 1-12—Hall, § 1—Lawrence, § 42—Phillimore, I. §§ 61-69—Twiss, +I. §§ 1-11—Taylor, § 117—Walker, § 1—Westlake, I. pp. 1-5, 20-21—Wheaton, +§§ 16-21—Ullmann, § 19—Heffter, § 15—Holtzendorff in +Holtzendorff, II. pp. 5-11—Bonfils, Nos. 160-164—Despagnet, Nos. 69-74—Pradier-Fodéré, +I. Nos. 43-81—Nys, I. pp. 329-356—Rivier, I. § 3—Calvo, +I. §§ 39-41—Fiore, I. Nos. 305-309, and Code, Nos. 51-77—Martens, +I. §§ 53-54—Mérignhac, I. pp. 114-231, and II. pp. 5, 154-221—Moore, +I. § 3.</p> <div class="sidenote"><p>Real and apparent International Persons.</p></div> -<p>§ 63. <a name="Th63" id="Th63"></a>The conception of International Persons is +<p>§ 63. <a name="Th63" id="Th63"></a>The conception of International Persons is derived from the conception of the Law of Nations. As this law is the body of rules which the civilised States consider legally binding in their intercourse, @@ -7568,9 +7527,9 @@ without thereby becoming members of the Family of Nations.</p> <div class="footnote"><p><a name="Footnote_87_87" id="Footnote_87_87"></a><a href="#FNanchor_87_87"><span class="label">[87]</span></a> See -below, § <a href="#Confederated_States88">88</a> (Confederations of States), - § <a href="#The_Law_of_Guaranty106">106</a> (Holy See), - and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_characteristics59">vol. II. §§ 59</a> +below, § <a href="#Confederated_States88">88</a> (Confederations of States), + § <a href="#The_Law_of_Guaranty106">106</a> (Holy See), + and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_characteristics59">vol. II. §§ 59</a> and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_distinction76">76</a> (Insurgents).</p></div> <p>It must be specially mentioned that the character @@ -7582,12 +7541,12 @@ loss of their State (as, for instance, the Jews or the Poles), and organised wandering tribes.<a name="FNanchor_88_88" id="FNanchor_88_88"></a><a href="#Footnote_88_88" class="fnanchor">[88]</a></p> <div class="footnote"><p><a name="Footnote_88_88" id="Footnote_88_88"></a><a href="#FNanchor_88_88"><span class="label">[88]</span></a> Most jurists agree with this opinion, but there are some -who disagree. Thus, for instance, Heffter (§ 48) claims for monarchs the -character of subjects of the Law of Nations; Lawrence (§ 42) claims that +who disagree. Thus, for instance, Heffter (§ 48) claims for monarchs the +character of subjects of the Law of Nations; Lawrence (§ 42) claims that character for corporations; and Westlake, Chapters, p. 2, and Fiore, Code, Nos. 51, 61-64, claim it for individuals. The matter will be discussed - below in §§ <a href="#Page_288">288</a>, + below in §§ <a href="#Page_288">288</a>, <a href="#But_what_is_the_real290">290</a>, <a href="#Heads_of_States344">344</a>, <a href="#Diplomatic_envoys384">384</a>.</p></div> @@ -7596,7 +7555,7 @@ discussed of the State.</p></div> -<p>§ 64. A State proper—in contradistinction to so-called +<p>§ 64. A State proper—in contradistinction to so-called Colonial States—is in existence when a people is settled in a country under its own Sovereign Government. The conditions which must obtain for the @@ -7629,7 +7588,7 @@ round, within and without the borders of the country.</p> <div class="sidenote"><p>Not-full Sovereign States.</p></div> -<p>§ 65. A State in its normal appearance does possess +<p>§ 65. A State in its normal appearance does possess independence all round and therefore full sovereignty. Yet there are States in existence which certainly do not possess full sovereignty, and are therefore named @@ -7645,7 +7604,7 @@ not-full Sovereign States can be International Persons and subjects of the Law of Nations at all.<a name="FNanchor_89_89" id="FNanchor_89_89"></a><a href="#Footnote_89_89" class="fnanchor">[89]</a></p> <div class="footnote"><p><a name="Footnote_89_89" id="Footnote_89_89"></a><a href="#FNanchor_89_89"><span class="label">[89]</span></a> The question will be discussed again - below, §§ <a href="#A_Federal89">89</a>, + below, §§ <a href="#A_Federal89">89</a>, <a href="#Th91">91</a>, <a href="#The_position_of_a_State93">93</a>, with regard to each kind of not-full Sovereign States. The object of @@ -7708,7 +7667,7 @@ thereby obtain a certain international position.</p></div> <div class="sidenote"><p>Divisibility of Sovereignty contested.</p></div> -<p>§ 66. The distinction between States full Sovereign<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> +<p>§ 66. The distinction between States full Sovereign<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> and not-full Sovereign is based upon the opinion that sovereignty is divisible, so that the powers connected with sovereignty need not necessarily be united in one @@ -7727,17 +7686,17 @@ which was universally agreed upon.<a name="FNanchor_91_91" id="FNanchor_91_91">< <div class="footnote"><p><a name="Footnote_91_91" id="Footnote_91_91"></a><a href="#FNanchor_91_91"><span class="label">[91]</span></a> The literature upon sovereignty is extensive. The following authors give a survey of the opinions of the different -writers:—Dock,"Der Souveränitäts-begriff von Bodin bis zu Friedrich dem +writers:—Dock,"Der Souveränitäts-begriff von Bodin bis zu Friedrich dem Grossen," 1897; Merriam, "History of the Theory of Sovereignty since -Rousseau," 1900; Rehm, "Allgemeine Staatslehre," 1899, §§ 10-16. See +Rousseau," 1900; Rehm, "Allgemeine Staatslehre," 1899, §§ 10-16. See also Maine, "Early Institutions," pp. 342-400.</p></div> <div class="sidenote"><p>Meaning of Sovereignty in the Sixteenth and Seventeenth Centuries.</p></div> -<p>§ 67. The term Sovereignty was introduced into +<p>§ 67. The term Sovereignty was introduced into political science by Bodin in his celebrated work, "De -la république," which appeared in 1577. Before Bodin, +la république," which appeared in 1577. Before Bodin, at the end of the Middle Ages, the word <i>souverain</i><a name="FNanchor_92_92" id="FNanchor_92_92"></a><a href="#Footnote_92_92" class="fnanchor">[92]</a> was used in France for an authority, political or other, which had no other authority above itself. Thus the highest @@ -7760,7 +7719,7 @@ commands that a contract shall be binding.<a name="FNanchor_93_93" id="FNanchor_ from <i>suprema potestas</i>.</p></div> <div class="footnote"><p><a name="Footnote_93_93" id="Footnote_93_93"></a><a href="#FNanchor_93_93"><span class="label">[93]</span></a> See - Bodin, "De la république," I. c. 8.</p></div> + Bodin, "De la république," I. c. 8.</p></div> <p>The conception of sovereignty thus introduced was at once accepted by writers on politics of the sixteenth @@ -7791,15 +7750,15 @@ of the Government are derived from this sovereignty of the State.</p> <div class="footnote"><p><a name="Footnote_94_94" id="Footnote_94_94"></a><a href="#FNanchor_94_94"><span class="label">[94]</span></a> See - Hobbes, "De cive," c. 6, §§ 12-15.</p></div> + Hobbes, "De cive," c. 6, §§ 12-15.</p></div> <div class="footnote"><p><a name="Footnote_95_95" id="Footnote_95_95"></a><a href="#FNanchor_95_95"><span class="label">[95]</span></a> See - Pufendorf, "De jure naturae et gentium," VII. c. 6, §§ + Pufendorf, "De jure naturae et gentium," VII. c. 6, §§ 1-13.</p></div> <div class="sidenote"><p>Meaning of Sovereignty in the Eighteenth Century.</p></div> -<p>§ 68. In the eighteenth century matters changed +<p>§ 68. In the eighteenth century matters changed again. The fact that the several hundred reigning<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span> princes of the member-States of the German Empire had practically, although not theoretically, become @@ -7833,7 +7792,7 @@ from the people to any organ of the State.</p> <div class="sidenote"><p>Meaning of Sovereignty in the Nineteenth Century.</p></div> -<p>§ 69. During the nineteenth century three different +<p>§ 69. During the nineteenth century three different factors of great practical importance have exercised their influence on the history of the conception of sovereignty.</p> @@ -7899,7 +7858,7 @@ European publicists followed him in time.</p> <div class="sidenote"><p>Result of the Controversy regarding Sovereignty.</p></div> -<p>§ 70. From the foregoing sketch of the history of +<p>§ 70. From the foregoing sketch of the history of the conception of sovereignty it becomes apparent that there is not and never was unanimity regarding this conception. It is therefore no wonder that the endeavour @@ -7925,20 +7884,20 @@ sovereignty is divisible.<span class="pagenum"><a name="Page_116" id="Page_116"> </h4> -<p class="indh1">Hall, §§ 2 and 26—Lawrence, §§ 44-47—Phillimore, II. §§ 10-23—Taylor, §§ -153-160—Walker, § 1—Westlake, I. pp. 49-58—Wheaton, § 27—Moore, -§§ 27-75—Bluntschli, §§ 28-38—Hartmann, § 11—Heffter, § 23—Holtzendorff -in Holtzendorff, II. pp. 18-33—Liszt, § 5—Ullmann, §§ 29-30—Bonfils, -Nos. 195-213—Despagnet, Nos. 79-85—Pradier-Fodéré, I. Nos. -136-145—Nys, I. pp. 69-115—Mérignhac, I. pp. 320-329—Rivier, I. § 3—Calvo, -I. §§ 87-98—Fiore, I. Nos. 311-320, and Code, Nos. 160-177—Martens, -I. §§ 63-64—Le Normand, "La reconnaissance internationale +<p class="indh1">Hall, §§ 2 and 26—Lawrence, §§ 44-47—Phillimore, II. §§ 10-23—Taylor, §§ +153-160—Walker, § 1—Westlake, I. pp. 49-58—Wheaton, § 27—Moore, +§§ 27-75—Bluntschli, §§ 28-38—Hartmann, § 11—Heffter, § 23—Holtzendorff +in Holtzendorff, II. pp. 18-33—Liszt, § 5—Ullmann, §§ 29-30—Bonfils, +Nos. 195-213—Despagnet, Nos. 79-85—Pradier-Fodéré, I. Nos. +136-145—Nys, I. pp. 69-115—Mérignhac, I. pp. 320-329—Rivier, I. § 3—Calvo, +I. §§ 87-98—Fiore, I. Nos. 311-320, and Code, Nos. 160-177—Martens, +I. §§ 63-64—Le Normand, "La reconnaissance internationale et ses diverses applications" (1899).</p> <div class="sidenote"><p>Recognition a condition of Membership of the Family of Nations.</p></div> -<p>§ 71. <a name="As_the_basis_of_the_Law71" id="As_the_basis_of_the_Law71"></a>As the basis of the Law of Nations is the +<p>§ 71. <a name="As_the_basis_of_the_Law71" id="As_the_basis_of_the_Law71"></a>As the basis of the Law of Nations is the common consent of the civilised States, statehood alone does not include membership of the Family of Nations. There are States in existence, although their number @@ -7957,7 +7916,7 @@ A State is and becomes an International Person through recognition only and exclusively.</p> <div class="footnote"><p><a name="Footnote_98_98" id="Footnote_98_98"></a><a href="#FNanchor_98_98"><span class="label">[98]</span></a> See - above, §§ <a href="#Thus_the_membership27">27</a> and <a href="#The_present_range28">28</a>.</p></div> + above, §§ <a href="#Thus_the_membership27">27</a> and <a href="#The_present_range28">28</a>.</p></div> <p>Many writers do not agree with this opinion. They maintain that, if a new civilised State comes into existence @@ -7974,7 +7933,7 @@ and that recognition supplies only the necessary evidence for this fact.</p> <div class="footnote"><p><a name="Footnote_99_99" id="Footnote_99_99"></a><a href="#FNanchor_99_99"><span class="label">[99]</span></a> See, - for instance, Hall, §§ 2 and 26; Ullmann, § 29; + for instance, Hall, §§ 2 and 26; Ullmann, § 29; Gareis, p. 64; Rivier, I. p. 57.</p></div> <p>If the real facts of international life are taken into @@ -7998,7 +7957,7 @@ International Person and a subject of International Law.</p> <div class="sidenote"><p>Mode of Recognition.</p></div> -<p>§ 72. <a name="Recognition_is_the_act72" id="Recognition_is_the_act72"></a>Recognition is the act through which it becomes +<p>§ 72. <a name="Recognition_is_the_act72" id="Recognition_is_the_act72"></a>Recognition is the act through which it becomes apparent that an old State is ready to deal with a new State as an International Person and a member of the Family of Nations. Recognition is given either @@ -8013,7 +7972,7 @@ which it becomes apparent that the new State is actually treated as an International Person.</p> <div class="footnote"><p><a name="Footnote_100_100" id="Footnote_100_100"></a><a href="#FNanchor_100_100"><span class="label">[100]</span></a> Whether the sending of a consul includes recognition is -discussed below, § 428.</p></div> +discussed below, § 428.</p></div> <p>But no new State has by International Law a right to demand recognition, although practically such recognition @@ -8043,7 +8002,7 @@ give their recognition too.</p> <div class="sidenote"><p>Recognition under Conditions.</p></div> -<p>§ 73. <a name="Recognition_will73" id="Recognition_will73"></a>Recognition will as a rule be given without +<p>§ 73. <a name="Recognition_will73" id="Recognition_will73"></a>Recognition will as a rule be given without any conditions whatever, provided the new State is safely and permanently established. Since, however, the granting of recognition is a matter of policy, and @@ -8067,7 +8026,7 @@ the imposed condition.</p> <div class="footnote"><p><a name="Footnote_102_102" id="Footnote_102_102"></a><a href="#FNanchor_102_102"><span class="label">[102]</span></a> This condition contains a restriction on the personal supremacy of the respective States. See - below, § <a href="#Personal_Supremacy_does_not128">128</a>.</p></div> + below, § <a href="#Personal_Supremacy_does_not128">128</a>.</p></div> <div class="footnote"><p><a name="Footnote_103_103" id="Footnote_103_103"></a><a href="#FNanchor_103_103"><span class="label">[103]</span></a> See arts. 5, 25, 35, and 44 of the Treaty of Berlin of @@ -8075,7 +8034,7 @@ supremacy of the respective States. See <div class="sidenote"><p>Recognition timely and precipitate.</p></div> -<p>§ 74. Recognition is of special importance in those +<p>§ 74. Recognition is of special importance in those cases where a new State tries to establish itself by breaking off from an existing State in the course of a revolution. And here the question is material whether @@ -8099,7 +8058,7 @@ submit.</p> <div class="footnote"><p><a name="Footnote_104_104" id="Footnote_104_104"></a><a href="#FNanchor_104_104"><span class="label">[104]</span></a> It is frequently maintained that such untimely recognition contains an intervention. But this is not correct, since intervention is (see - below, § <a href="#Intervention_is134">134</a>) <i>dictatorial</i> interference in the affairs of another + below, § <a href="#Intervention_is134">134</a>) <i>dictatorial</i> interference in the affairs of another State. The question of recognition of the belligerency of insurgents is exhaustively treated by Westlake, I. pp. 50-57.</p></div> @@ -8121,7 +8080,7 @@ then no legal obligation to grant it.</p> <div class="footnote"><p><a name="Footnote_105_105" id="Footnote_105_105"></a><a href="#FNanchor_105_105"><span class="label">[105]</span></a> When, in 1903, Panama fell away from Colombia, the United States immediately recognised the new Republic as an independent State. -For the motives of this quick action, see Moore, I. § 344, pp. 46 and +For the motives of this quick action, see Moore, I. § 344, pp. 46 and following.</p></div> <p>The breaking off of the American States from their @@ -8141,13 +8100,13 @@ followed the example in 1824 and 1825.<a name="FNanchor_106_106" id="FNanchor_10 <div class="footnote"><p><a name="Footnote_106_106" id="Footnote_106_106"></a><a href="#FNanchor_106_106"><span class="label">[106]</span></a> See Gibbs, "Recognition: a Chapter from the History of the -North American and South American States" (1863), and Moore, I. §§ +North American and South American States" (1863), and Moore, I. §§ 28-36.</p></div> <div class="sidenote"><p>State Recognition in contradistinction to other Recognitions.</p></div> -<p>§ 75. Recognition of a new State must not be +<p>§ 75. Recognition of a new State must not be confounded with other recognitions. Recognition of insurgents as a belligerent Power has already been mentioned. Besides this, recognition of a change in the<span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span> @@ -8166,7 +8125,7 @@ such State cannot claim any privileges connected with the new title.</p> <div class="footnote"><p><a name="Footnote_107_107" id="Footnote_107_107"></a><a href="#FNanchor_107_107"><span class="label">[107]</span></a> See - below, § <a href="#At_the_present_time119">119</a>.</p></div> + below, § <a href="#At_the_present_time119">119</a>.</p></div> <h4> @@ -8175,18 +8134,18 @@ the new title.</p> </h4> -<p class="indh1">Grotius, II. c. 9, §§ 5-13—Pufendorf, VIII. c. 12—Vattel, I. § 11—Hall, § 2—Halleck, -I. pp. 89-92—Phillimore, I. §§ 124-137—Taylor, § 163—Westlake, -I. pp. 58-66—Wheaton, §§ 28-32—Moore, I. §§ 76-79—Bluntschli, -§§ 39-53—Hartmann, §§ 12-13—Heffter, § 24—Holtzendorff -in Holtzendorff, II. pp. 21-23—Liszt, § 5—Ullmann, §§ 31 and 35—Bonfils, -Nos. 214-215—Despagnet, Nos. 86-89—Pradier-Fodéré, I. Nos. -146-157—Nys, I. pp. 399-401—Rivier, I. § 3—Calvo, I. §§ 81-106—Fiore, -I. Nos. 321-331, and Code, Nos. 119-141—Martens, I. §§ 65-69.</p> +<p class="indh1">Grotius, II. c. 9, §§ 5-13—Pufendorf, VIII. c. 12—Vattel, I. § 11—Hall, § 2—Halleck, +I. pp. 89-92—Phillimore, I. §§ 124-137—Taylor, § 163—Westlake, +I. pp. 58-66—Wheaton, §§ 28-32—Moore, I. §§ 76-79—Bluntschli, +§§ 39-53—Hartmann, §§ 12-13—Heffter, § 24—Holtzendorff +in Holtzendorff, II. pp. 21-23—Liszt, § 5—Ullmann, §§ 31 and 35—Bonfils, +Nos. 214-215—Despagnet, Nos. 86-89—Pradier-Fodéré, I. Nos. +146-157—Nys, I. pp. 399-401—Rivier, I. § 3—Calvo, I. §§ 81-106—Fiore, +I. Nos. 321-331, and Code, Nos. 119-141—Martens, I. §§ 65-69.</p> <div class="sidenote"><p>Important in contradistinction to Indifferent Changes.</p></div> -<p>§ 76. The existence of International Persons is +<p>§ 76. The existence of International Persons is exposed to the flow of things and times. There is a constant and gradual change in their citizens through deaths and births, emigration, and immigration. There @@ -8213,7 +8172,7 @@ International Person altogether.</p> <div class="sidenote"><p>Changes not affecting States as International Persons.</p></div> -<p>§ 77. A State remains one and the same International +<p>§ 77. A State remains one and the same International Person in spite of changes in its headship, in its dynasty, in its form, in its rank and title, and in its territory. These changes cannot be said to be indifferent to International @@ -8257,7 +8216,7 @@ International Person.</p> <div class="sidenote"><p>Changes affecting States as International Persons.</p></div> -<p>§ 78. Changes which affect States as International +<p>§ 78. Changes which affect States as International Persons are of different character.</p> <p>(1) As in a Real Union the member-States of the @@ -8271,7 +8230,7 @@ the member-States are again affected, for they now become again separate International Persons.</p> <div class="footnote"><p><a name="Footnote_108_108" id="Footnote_108_108"></a><a href="#FNanchor_108_108"><span class="label">[108]</span></a> See - below, § <a href="#A_Real87">87</a>, where the character of the Real Union is + below, § <a href="#A_Real87">87</a>, where the character of the Real Union is fully discussed.</p></div> <p>(2) Other changes affecting States as International @@ -8298,7 +8257,7 @@ Federal State which leaves the union and gains the condition of a full Sovereign State.</p> <div class="footnote"><p><a name="Footnote_109_109" id="Footnote_109_109"></a><a href="#FNanchor_109_109"><span class="label">[109]</span></a> See - below, §§ <a href="#Independence_is_not126">126</a>-127, where the + below, §§ <a href="#Independence_is_not126">126</a>-127, where the different kinds of these restrictions are discussed.</p></div> @@ -8311,7 +8270,7 @@ an International Person of a particular kind.</p> <div class="sidenote"><p>Extinction of International Persons.</p></div> -<p>§ 79. A State ceases to be an International Person +<p>§ 79. A State ceases to be an International Person when it ceases to exist. Theoretically such extinction of International Persons is possible through emigration or the perishing of the whole population of a State, @@ -8351,16 +8310,16 @@ Poland by Russia, Austria, and Prussia in 1795.</p> <p><a name="FNanchor_110_110" id="FNanchor_110_110"></a><a href="#Footnote_110_110" class="fnanchor">[110]</a></p> -<p class="indh1">Grotius, II. c. 9 and 10—Pufendorf, VIII. c. 12—Hall, §§ 27-29—Phillimore, -I. § 137—Lawrence, § 49—Halleck, I. pp. 89-92—Taylor, §§ 164-168—Westlake, -I. pp. 68-83—Wharton, I. § 5—Moore, I. §§ 92-99—Wheaton, -§§ 28-32—Bluntschli, §§ 47-50—Hartmann, § 12—Heffter, -§ 25—Holtzendorff in Holtzendorff, II. pp. 33-47—Liszt, § 23—Ullmann, -§ 32—Bonfils, Nos. 216-233—Despagnet, Nos. 89-102—Pradier-Fodéré, -I. Nos. 156-163—Nys, I. pp. 399-401—Rivier, I. § 3, pp. 69-75 and -p. 438—Calvo, I. §§ 99-103—Fiore, I. Nos. 349-366—Martens, I. § 67—Appleton, -"Des effets des annexions sur les dettes de l'état démembré -ou annexé" (1895)—Huber, "Die Staatensuccession" (1898)—Keith, +<p class="indh1">Grotius, II. c. 9 and 10—Pufendorf, VIII. c. 12—Hall, §§ 27-29—Phillimore, +I. § 137—Lawrence, § 49—Halleck, I. pp. 89-92—Taylor, §§ 164-168—Westlake, +I. pp. 68-83—Wharton, I. § 5—Moore, I. §§ 92-99—Wheaton, +§§ 28-32—Bluntschli, §§ 47-50—Hartmann, § 12—Heffter, +§ 25—Holtzendorff in Holtzendorff, II. pp. 33-47—Liszt, § 23—Ullmann, +§ 32—Bonfils, Nos. 216-233—Despagnet, Nos. 89-102—Pradier-Fodéré, +I. Nos. 156-163—Nys, I. pp. 399-401—Rivier, I. § 3, pp. 69-75 and +p. 438—Calvo, I. §§ 99-103—Fiore, I. Nos. 349-366—Martens, I. § 67—Appleton, +"Des effets des annexions sur les dettes de l'état démembré +ou annexé" (1895)—Huber, "Die Staatensuccession" (1898)—Keith, "The Theory of State Succession, with special reference to English and Colonial Law" (1907)—Cavaglieri, "La dottrina della successione di stato a stato, &c." (1910)—Richards in <i>The Law Magazine and @@ -8377,7 +8336,7 @@ pp. 618-648, is likewise very important.</p></div> <div class="sidenote"><p>Common Doctrine regarding Succession of International Persons.</p></div> -<p>§ 80. Although there is no unanimity among the +<p>§ 80. Although there is no unanimity among the writers on International Law with regard to the so-called succession of International Persons, nevertheless the following common doctrine can be stated to exist.</p> @@ -8424,11 +8383,11 @@ undergoes through losing part of its sovereignty.</p> <div class="footnote"><p><a name="Footnote_111_111" id="Footnote_111_111"></a><a href="#FNanchor_111_111"><span class="label">[111]</span></a> See Gareis, pp. 66-70, who discusses the matter with great -clearness, and Liszt, § 23.<span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span></p></div> +clearness, and Liszt, § 23.<span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span></p></div> <div class="sidenote"><p>How far Succession actually takes place.</p></div> -<p>§ 81. If the real facts of life are taken into consideration, +<p>§ 81. If the real facts of life are taken into consideration, the common doctrine cannot be upheld. To say that succession takes place in such and such cases and to make out afterwards what rights and duties @@ -8452,7 +8411,7 @@ These cases must be discussed singly.</p> <div class="sidenote"><p>Succession in consequence of Absorption.</p></div> -<p>§ 82. <a name="When_a_State_merges82" id="When_a_State_merges82"></a>When a State merges voluntarily into another +<p>§ 82. <a name="When_a_State_merges82" id="When_a_State_merges82"></a>When a State merges voluntarily into another State—as, for instance, Korea in 1910 did into Japan—or when a State is subjugated by another State, the latter remains one and the same International Person @@ -8475,8 +8434,8 @@ treaties, although they are non-political in a sense, possess some prominent political traits.<a name="FNanchor_112_112" id="FNanchor_112_112"></a><a href="#Footnote_112_112" class="fnanchor">[112]</a></p> <div class="footnote"><p><a name="Footnote_112_112" id="Footnote_112_112"></a><a href="#FNanchor_112_112"><span class="label">[112]</span></a> On the whole question concerning the extinction of treaties -in consequence of the absorption of a State by another, see Moore, V. § -773, and below, § <a href="#A_cause_which548">548</a>. When, in 1910, Korea merged into Japan, the +in consequence of the absorption of a State by another, see Moore, V. § +773, and below, § <a href="#A_cause_which548">548</a>. When, in 1910, Korea merged into Japan, the latter published a Declaration—see Martens, N.R.G. 3rd Ser. IV. p. 26—containing the following articles with regard to the treaty obligations of the extinct State of Korea:— @@ -8556,7 +8515,7 @@ See Scott, "Cases on International Law" (1902), p. 85.</p></div> <div class="footnote"><p><a name="Footnote_114_114" id="Footnote_114_114"></a><a href="#FNanchor_114_114"><span class="label">[114]</span></a> See - Moore, I. § 97, and Appleton, + Moore, I. § 97, and Appleton, "Des effets des annexions de territoires sur les dettes, &c." (1895).</p></div> @@ -8580,7 +8539,7 @@ safely be maintained that not a usage, but a real rule of International Law, based on custom, is in existence with regard to this point. -(See Hall, § 29, and Westlake in <i>The +(See Hall, § 29, and Westlake in <i>The Law Quarterly Review</i>, XVII. (1901), pp. 392-401, XXXI. (1905), p. 335, and now Westlake, I. pp. 74-82.)</p></div> @@ -8600,8 +8559,8 @@ An International Court would recognise such a rule.</p></div> <div class="footnote"><p><a name="Footnote_117_117" id="Footnote_117_117"></a><a href="#FNanchor_117_117"><span class="label">[117]</span></a> See - Martens, I. § 67; Heffter, -§ 25; Huber, op. cit. p. 158.</p></div> + Martens, I. § 67; Heffter, +§ 25; Huber, op. cit. p. 158.</p></div> <div class="footnote"><p><a name="Footnote_118_118" id="Footnote_118_118"></a><a href="#FNanchor_118_118"><span class="label">[118]</span></a> See the Report of the Transvaal Concession Commission, p. @@ -8613,13 +8572,13 @@ conditions—see Barclay in <i>The Law Quarterly Review</i>, XXI. (1905), p. such funds in cash on neutral vessels to the enemy falls under the category of carriage of contraband, and can be punished by the belligerents. (See -below, Vol. II. § <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#It352">352</a>.)</p></div> +below, Vol. II. § <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#It352">352</a>.)</p></div> <div class="footnote"><p><a name="Footnote_119_119" id="Footnote_119_119"></a><a href="#FNanchor_119_119"><span class="label">[119]</span></a> The question how far concessions granted by a subjugated State to a private individual or to a company must be upheld by the subjugating State, is difficult to answer in its generality. The merits of each case would seem to have to be taken into consideration. See -Westlake, I. p. 82; Moore, I. § 98; Gidel, "Des effets de l'annexion sur +Westlake, I. p. 82; Moore, I. § 98; Gidel, "Des effets de l'annexion sur les concessions" (1904).</p></div> <p>The case of a Federal State arising—like the German @@ -8639,11 +8598,11 @@ only.<a name="FNanchor_121_121" id="FNanchor_121_121"></a><a href="#Footnote_121 92-98.</p></div> <div class="footnote"><p><a name="Footnote_121_121" id="Footnote_121_121"></a><a href="#FNanchor_121_121"><span class="label">[121]</span></a> See - below, § <a href="#A_Federal89">89</a>.</p></div> + below, § <a href="#A_Federal89">89</a>.</p></div> <div class="sidenote"><p>Succession in consequence of Dismemberment.</p></div> -<p>§ 83. When a State breaks up into fragments which +<p>§ 83. When a State breaks up into fragments which themselves become States and International Persons, or which are annexed by surrounding States, it becomes extinct as an International Person, and the same rules @@ -8676,11 +8635,11 @@ further, except those which concerned the very Union and lose all meaning by its dissolution.</p> <div class="footnote"><p><a name="Footnote_122_122" id="Footnote_122_122"></a><a href="#FNanchor_122_122"><span class="label">[122]</span></a> See - below, § <a href="#A_Real87">87</a>.</p></div> + below, § <a href="#A_Real87">87</a>.</p></div> <div class="sidenote"><p>Succession in case of Separation or Cession.</p></div> -<p>§ 84. When in consequence of war or otherwise one +<p>§ 84. When in consequence of war or otherwise one State cedes a part of its territory to another, or when a part of the territory of a State breaks off and becomes a State and an International Person of its own, @@ -8717,7 +8676,7 @@ the respective treaties are enumerated.</p></div> Martens, N.R.G. 2nd Ser. III. p. 449.</p></div> <div class="footnote"><p><a name="Footnote_125_125" id="Footnote_125_125"></a><a href="#FNanchor_125_125"><span class="label">[125]</span></a> See - Moore, III. § 97, pp. 351-385.</p></div> + Moore, III. § 97, pp. 351-385.</p></div> <h4> @@ -8726,26 +8685,26 @@ the respective treaties are enumerated.</p></div> </h4> -<p class="indh1">Pufendorf, VII. c. 5—Hall, § 4—Westlake, I. pp. 31-37—Phillimore, I. §§ 71-74, -102-105—Twiss, I. §§ 37-60—Halleck, I. pp. 70-74—Taylor, §§ 120-130—Wheaton, -§§ 39-51—Moore, I. §§ 6-11—Hartmann, § 70—Heffter, -§§ 20-21—Holtzendorff in Holtzendorff, II. pp. 118-141—Liszt, § 6—Ullmann, -§§ 20-24—Bonfils, Nos. 165-174—Despagnet, Nos. 109-126—Pradier-Fodéré, -I. Nos. 117-123—Mérignhac, II. pp. 6-42—Nys, I. pp. -367-378—Rivier, I. §§ 5-6—Calvo, I. §§ 44-61—Fiore, I. Nos. 335-339, -and Code, Nos. 96-104—Martens, I. §§ 56-59—Pufendorf, "De +<p class="indh1">Pufendorf, VII. c. 5—Hall, § 4—Westlake, I. pp. 31-37—Phillimore, I. §§ 71-74, +102-105—Twiss, I. §§ 37-60—Halleck, I. pp. 70-74—Taylor, §§ 120-130—Wheaton, +§§ 39-51—Moore, I. §§ 6-11—Hartmann, § 70—Heffter, +§§ 20-21—Holtzendorff in Holtzendorff, II. pp. 118-141—Liszt, § 6—Ullmann, +§§ 20-24—Bonfils, Nos. 165-174—Despagnet, Nos. 109-126—Pradier-Fodéré, +I. Nos. 117-123—Mérignhac, II. pp. 6-42—Nys, I. pp. +367-378—Rivier, I. §§ 5-6—Calvo, I. §§ 44-61—Fiore, I. Nos. 335-339, +and Code, Nos. 96-104—Martens, I. §§ 56-59—Pufendorf, "De systematibus civitatum" (1675)—Jellinek, "Die Lehre von den -Staatenverbindungen" (1882)—Borel, "Etude sur la souveraineté de -l'Etat fédératif" (1886)—Brie, "Theorie der Staatenverbindungen" +Staatenverbindungen" (1882)—Borel, "Etude sur la souveraineté de +l'Etat fédératif" (1886)—Brie, "Theorie der Staatenverbindungen" (1886)—Hart, "Introduction to the Study of Federal Government" in "Harvard Historical Monographs," 1891 (includes an excellent bibliography)—Le -Fur, "Etat fédéral et confédération d'Etats" (1896)—Moll, +Fur, "Etat fédéral et confédération d'Etats" (1896)—Moll, "Der Bundesstaatsbegriff in den Vereinigten Staaten von America" (1905)—Ebers, "Die Lehre vom Staatenbunde" (1910).</p> <div class="sidenote"><p>Real and apparent Composite International Persons.</p></div> -<p>§ 85. International Persons are as a rule single +<p>§ 85. International Persons are as a rule single Sovereign States. In such single States there is one central political authority as Government which represents the State, within its borders as well as without @@ -8789,7 +8748,7 @@ German Empire.</p></div> <div class="sidenote"><p>States in Personal Union.</p></div> -<p>§ 86. A Personal Union is in existence when two +<p>§ 86. A Personal Union is in existence when two Sovereign States and separate International Persons are linked together through the accidental fact that they have the same individual as monarch. Thus a Personal @@ -8810,7 +8769,7 @@ time, but not the envoy of the Personal Union.</p> <div class="sidenote"><p>States in Real Union.</p></div> -<p>§ 87. <a name="A_Real87" id="A_Real87"></a>A Real Union<a name="FNanchor_127_127" id="FNanchor_127_127"></a><a href="#Footnote_127_127" class="fnanchor">[127]</a> is in existence when two +<p>§ 87. <a name="A_Real87" id="A_Real87"></a>A Real Union<a name="FNanchor_127_127" id="FNanchor_127_127"></a><a href="#Footnote_127_127" class="fnanchor">[127]</a> is in existence when two Sovereign States are by an international treaty, recognised by other Powers, linked together for ever under the same monarch, so that they make one and the @@ -8834,7 +8793,7 @@ Austria-Hungary, that of Sweden-Norway having been dissolved in 1905.</p> <div class="footnote"><p><a name="Footnote_127_127" id="Footnote_127_127"></a><a href="#FNanchor_127_127"><span class="label">[127]</span></a> See - Blüthgen in Z.V. I. (1906), pp. 237-263.</p></div> + Blüthgen in Z.V. I. (1906), pp. 237-263.</p></div> <div class="footnote"><p><a name="Footnote_128_128" id="Footnote_128_128"></a><a href="#FNanchor_128_128"><span class="label">[128]</span></a> There is a Real Union between Saxe-Coburg and Saxe-Gotha within the German Empire.</p></div> @@ -8863,16 +8822,16 @@ integrity of which is guaranteed by Great Britain, France, Germany, and Russia by the Treaty of Christiania of November 2, 1907.<a name="FNanchor_130_130" id="FNanchor_130_130"></a><a href="#Footnote_130_130" class="fnanchor">[130]</a></p> -<div class="footnote"><p><a name="Footnote_129_129" id="Footnote_129_129"></a><a href="#FNanchor_129_129"><span class="label">[129]</span></a> This is not universally recognised. Phillimore, I. § 74, +<div class="footnote"><p><a name="Footnote_129_129" id="Footnote_129_129"></a><a href="#FNanchor_129_129"><span class="label">[129]</span></a> This is not universally recognised. Phillimore, I. § 74, maintains that there was a Personal Union between Sweden and Norway, and -Twiss, I. § 40, calls it a Federal Union.</p></div> +Twiss, I. § 40, calls it a Federal Union.</p></div> <div class="footnote"><p><a name="Footnote_130_130" id="Footnote_130_130"></a><a href="#FNanchor_130_130"><span class="label">[130]</span></a> See - above, § <a href="#Soon_after_the_Hague50">50</a>, p. 75.</p></div> + above, § <a href="#Soon_after_the_Hague50">50</a>, p. 75.</p></div> <div class="sidenote"><p>Confederated States (Staatenbund).</p></div> -<p>§ 88. <a name="Confederated_States88" id="Confederated_States88"></a>Confederated States (Staatenbund) are a number +<p>§ 88. <a name="Confederated_States88" id="Confederated_States88"></a>Confederated States (Staatenbund) are a number of full Sovereign States linked together for the maintenance of their external and internal independence by a recognised international treaty into a union with @@ -8922,7 +8881,7 @@ established in 1895, came to an end in 1898.</p> <div class="sidenote"><p>Federal States (Bundesstaaten).</p></div> -<p>§ 89. <a name="A_Federal89" id="A_Federal89"></a>A Federal State<a name="FNanchor_132_132" id="FNanchor_132_132"></a><a href="#Footnote_132_132" class="fnanchor">[132]</a> is a perpetual union of several +<p>§ 89. <a name="A_Federal89" id="A_Federal89"></a>A Federal State<a name="FNanchor_132_132" id="FNanchor_132_132"></a><a href="#Footnote_132_132" class="fnanchor">[132]</a> is a perpetual union of several Sovereign States which has organs of its own and is<span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span> invested with power, not only over the member-States, but also over their citizens. The union is based, @@ -9012,7 +8971,7 @@ part-Sovereign States, and they are, consequently, International Persons for some parts only.</p> <div class="footnote"><p><a name="Footnote_134_134" id="Footnote_134_134"></a><a href="#FNanchor_134_134"><span class="label">[134]</span></a> See - Riess, "Auswärtige Hoheitsrechte der deutschen + Riess, "Auswärtige Hoheitsrechte der deutschen Einzelstaaten"(1905).</p></div> <p>But it happens frequently that a Federal State @@ -9073,20 +9032,20 @@ Argentina since 1860, Brazil since 1891, Venezuela since </h4> -<p class="indh1">Hall, § 4—Westlake, I. pp. 25-27—Lawrence, § 39—Phillimore, I. §§ 85-99—Twiss, -I. §§ 22-36, 61-73—Taylor, §§ 140-144—Wheaton, § 37—Moore, I. -§ 13—Bluntschli, §§ 76-77—Hartmann, § 16—Heffter, §§ 19 and 22—Holtzendorff -in Holtzendorff, II. pp. 98-117—Liszt, § 6—Ullmann, § 25—Gareis, -§ 15—Bonfils, Nos. 188-190—Despagnet, Nos. 127-129—Mérignhac, -I. pp. 201-218—Pradier-Fodéré, I. Nos. 109-112—Nys, I. -pp. 357-364—Rivier, I. § 4—Calvo, I. §§ 66-72—Fiore, I. No. 341, and -Code, Nos. 105-110—Martens, I. §§ 60-61—Stubbs, "Suzerainty" (1884)—Baty, -"International Law in South Africa" (1900), pp. 48-68—Boghitchévitch, -"Halbsouveränität" (1903).</p> +<p class="indh1">Hall, § 4—Westlake, I. pp. 25-27—Lawrence, § 39—Phillimore, I. §§ 85-99—Twiss, +I. §§ 22-36, 61-73—Taylor, §§ 140-144—Wheaton, § 37—Moore, I. +§ 13—Bluntschli, §§ 76-77—Hartmann, § 16—Heffter, §§ 19 and 22—Holtzendorff +in Holtzendorff, II. pp. 98-117—Liszt, § 6—Ullmann, § 25—Gareis, +§ 15—Bonfils, Nos. 188-190—Despagnet, Nos. 127-129—Mérignhac, +I. pp. 201-218—Pradier-Fodéré, I. Nos. 109-112—Nys, I. +pp. 357-364—Rivier, I. § 4—Calvo, I. §§ 66-72—Fiore, I. No. 341, and +Code, Nos. 105-110—Martens, I. §§ 60-61—Stubbs, "Suzerainty" (1884)—Baty, +"International Law in South Africa" (1900), pp. 48-68—Boghitchévitch, +"Halbsouveränität" (1903).</p> <div class="sidenote"><p>The Union between Suzerain and Vassal State.</p></div> -<p>§ 90. The union and the relations between a Suzerain +<p>§ 90. The union and the relations between a Suzerain and its Vassal State create much difficulty in the science of the Law of Nations. As both are separate States, a union of States they certainly make, but it would be @@ -9141,7 +9100,7 @@ internationally by the Suzerain State.</p> <div class="sidenote"><p>International Position of Vassal States.</p></div> -<p>§ 91. <a name="Th91" id="Th91"></a>The fact that the relation between the suzerain +<p>§ 91. <a name="Th91" id="Th91"></a>The fact that the relation between the suzerain and the vassal always depends upon the special case, excludes the possibility of laying down a general rule as regards the position of Vassal States within the Family<span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span> @@ -9192,7 +9151,7 @@ pp. 312-319.—See also Lee-Warner, "The Native States of India" (1910), pp. 254-279.</p></div> <div class="footnote"><p><a name="Footnote_139_139" id="Footnote_139_139"></a><a href="#FNanchor_139_139"><span class="label">[139]</span></a> See - below, § <a href="#Th171">171</a>.</p></div> + below, § <a href="#Th171">171</a>.</p></div> <p>How could all these and other facts be explained, if Vassal States could never for some small part be International @@ -9223,8 +9182,8 @@ in Germany merged in 1854 into its suzerain Oldenburg.</p> <div class="footnote"><p><a name="Footnote_140_140" id="Footnote_140_140"></a><a href="#FNanchor_140_140"><span class="label">[140]</span></a> As regards the position of Bulgaria while she was a Vassal State under Turkish suzerainty, see Holland, "The European Concert in -the Eastern Question" (1885), pp. 277-307, and Nédjmidin, -"Völkerrechtliche Entwicklung Bulgariens" (1908).</p></div> +the Eastern Question" (1885), pp. 277-307, and Nédjmidin, +"Völkerrechtliche Entwicklung Bulgariens" (1908).</p></div> <p>Vassal States of importance which are for some parts International Persons are, at present, Egypt,<a name="FNanchor_141_141" id="FNanchor_141_141"></a><a href="#Footnote_141_141" class="fnanchor">[141]</a> and<span class="pagenum"><a name="Page_144" id="Page_144">[Pg 144]</a></span> @@ -9236,13 +9195,13 @@ but enjoys autonomy to a vast degree.</p> <div class="footnote"><p><a name="Footnote_141_141" id="Footnote_141_141"></a><a href="#FNanchor_141_141"><span class="label">[141]</span></a> See Holland, "The European Concert in the Eastern Question" -(1885), pp. 89-205; Grünau, "Die staats- und völkerrechtliche Stellung +(1885), pp. 89-205; Grünau, "Die staats- und völkerrechtliche Stellung Aegyptens" (1903); Cocheris, "Situation internationale de l'Egypte et du Soudan" (1903); Freycinet, "La question d'Egypte" (1905); Moret in R.J. XIV. (1907), pp. 405-416; Lamba in R.G. XVII. (1910), pp. 36-55. In the case of the "Charkieh," 1873, L.R. 4 Adm. and Eccl. 59, the Court refused to acknowledge the half-sovereignty of Egypt; see Phillimore, I. -§ 99.</p></div> +§ 99.</p></div> <div class="footnote"><p><a name="Footnote_142_142" id="Footnote_142_142"></a><a href="#FNanchor_142_142"><span class="label">[142]</span></a> See Streit in R.G. X. (1903), pp. 399-417.</p></div> @@ -9258,22 +9217,22 @@ refused to acknowledge the half-sovereignty of Egypt; see Phillimore, I. </h4> -<p class="indh1">Hall, §§ 4 and 38*—Westlake, I. pp. 22-24—Lawrence, § 39—Phillimore, I. -75-82—Twiss, I. §§ 22-36—Taylor, §§ 134-139—Wheaton, §§ 34-36—Moore, -I. § 14—Bluntschli, § 78—Hartmann, § 9—Heffter, §§ 19 and 22—Holtzendorff -in Holtzendorff, II. pp. 98-117—Gareis, § 15—Liszt, § 6—Ullmann, -§ 26—Bonfils, Nos. 176-187—Despagnet, Nos. 130-136—Mérignhac, -II. pp. 180-220—Pradier-Fodéré, I. Nos. 94-108—Nys, I. pp. -364-366—Rivier, I. § 4—Calvo, I. §§ 62-65—Fiore, I. § 341, and Code, -Nos. 111-118—Martens, I. §§ 60-61—Pillet in R.G. II. (1895), pp. 583-608—Heilborn, -"Das völkerrechtliche Protectorat" (1891)—Engelhardt, +<p class="indh1">Hall, §§ 4 and 38*—Westlake, I. pp. 22-24—Lawrence, § 39—Phillimore, I. +75-82—Twiss, I. §§ 22-36—Taylor, §§ 134-139—Wheaton, §§ 34-36—Moore, +I. § 14—Bluntschli, § 78—Hartmann, § 9—Heffter, §§ 19 and 22—Holtzendorff +in Holtzendorff, II. pp. 98-117—Gareis, § 15—Liszt, § 6—Ullmann, +§ 26—Bonfils, Nos. 176-187—Despagnet, Nos. 130-136—Mérignhac, +II. pp. 180-220—Pradier-Fodéré, I. Nos. 94-108—Nys, I. pp. +364-366—Rivier, I. § 4—Calvo, I. §§ 62-65—Fiore, I. § 341, and Code, +Nos. 111-118—Martens, I. §§ 60-61—Pillet in R.G. II. (1895), pp. 583-608—Heilborn, +"Das völkerrechtliche Protectorat" (1891)—Engelhardt, "Les Protectorats, &c." (1896)—Gairal, "Le protectorat international" -(1896)—Despagnet, "Essai sur les protectorats" (1896)—Boghitchévitch, -"Halbsouveränität" (1903).</p> +(1896)—Despagnet, "Essai sur les protectorats" (1896)—Boghitchévitch, +"Halbsouveränität" (1903).</p> <div class="sidenote"><p>Conception of Protectorate.</p></div> -<p>§ 92. <a name="Legally_and_materially92" id="Legally_and_materially92"></a>Legally and materially different from suzerainty +<p>§ 92. <a name="Legally_and_materially92" id="Legally_and_materially92"></a>Legally and materially different from suzerainty is the relation of protectorate between two States. It happens that a weak State surrenders itself by treaty into the protection of a strong and mighty State in @@ -9303,7 +9262,7 @@ became apparent in 1906, when Russia, after some hesitation, finally agreed upon Japan, and not Korea, granting the <i>exequatur</i> to the Consul-general appointed by Russia for Korea, which was then a State under Japanese protectorate. See - below, § <a href="#Consuls_are_appointed427">427</a>.</p></div> + below, § <a href="#Consuls_are_appointed427">427</a>.</p></div> <div class="footnote"><p><a name="Footnote_146_146" id="Footnote_146_146"></a><a href="#FNanchor_146_146"><span class="label">[146]</span></a> It is therefore of great importance that the parties should make quite clear the meaning of a clause which is supposed to stipulate @@ -9315,7 +9274,7 @@ recognise it.</p></div> <div class="sidenote"><p>International position of States under Protectorate.</p></div> -<p>§ 93. <a name="The_position_of_a_State93" id="The_position_of_a_State93"></a>The position of a State under protectorate +<p>§ 93. <a name="The_position_of_a_State93" id="The_position_of_a_State93"></a>The position of a State under protectorate within the Family of Nations cannot be defined by a general rule, since it is the treaty of protectorate which indirectly specialises it by enumerating the reciprocal @@ -9346,7 +9305,7 @@ which, of course, must exercise the protectorate conjointly.</p> <div class="footnote"><p><a name="Footnote_147_147" id="Footnote_147_147"></a><a href="#FNanchor_147_147"><span class="label">[147]</span></a> This was recognised by the English Prize Courts during the Crimean War with regard to the Ionian Islands, which were then still under British protectorate; see the case of the Ionian Ships, 2 Spinks -212, and Phillimore, I. § 77.</p></div> +212, and Phillimore, I. § 77.</p></div> <p>In Europe there are at present only two very small States under protectorate—namely, the republic of @@ -9370,7 +9329,7 @@ Urgel. As regards the international position of Andorra, see Vilar, <div class="sidenote"><p>Protectorates outside the Family of Nations.</p></div> -<p>§ 94. <a name="Outside_Europe_there_are94" id="Outside_Europe_there_are94"></a>Outside Europe there are numerous States +<p>§ 94. <a name="Outside_Europe_there_are94" id="Outside_Europe_there_are94"></a>Outside Europe there are numerous States under the protectorate of European States, but all of them are non-Christian States of such a civilisation as would not admit them to full membership of the Family @@ -9401,7 +9360,7 @@ Italian protectorate.</p> are Zanzibar under Great Britain and Tunis under France.</p></div> <div class="footnote"><p><a name="Footnote_151_151" id="Footnote_151_151"></a><a href="#FNanchor_151_151"><span class="label">[151]</span></a> See - below, § <a href="#The_growing_desire_to226">226</a>, and Perrinjaquet in R.G. XVI. (1909), pp. + below, § <a href="#The_growing_desire_to226">226</a>, and Perrinjaquet in R.G. XVI. (1909), pp. 316-367.</p></div> @@ -9412,14 +9371,14 @@ are Zanzibar under Great Britain and Tunis under France.</p></div> </h4> -<p class="indh1">Westlake, I. pp. 27-30—Lawrence, §§ 43 and 225—Taylor, § 133—Moore, I. -§ 12—Bluntschli, § 745—Heffter, § 145—Holtzendorff in Holtzendorff, II. -pp. 643-646—Gareis, § 15—Liszt, § 6—Ullmann, § 27—Bonfils, Nos. 348-369—Despagnet, -Nos. 137-146—Mérignhac, II. pp. 56-65—Pradier-Fodéré, -II. Nos. 1001-1015—Nys, I. pp. 379-398—Rivier, I. § 7—Calvo, -IV. §§ 2596-2610—Piccioni's "Essai sur la neutralité perpétuelle" (2nd -ed. 1902)—Regnault, "Des effets de la neutralité perpétuelle" (1898)—Tswettcoff, -"De la situation juridique des états neutralisés" (1895)—Morand +<p class="indh1">Westlake, I. pp. 27-30—Lawrence, §§ 43 and 225—Taylor, § 133—Moore, I. +§ 12—Bluntschli, § 745—Heffter, § 145—Holtzendorff in Holtzendorff, II. +pp. 643-646—Gareis, § 15—Liszt, § 6—Ullmann, § 27—Bonfils, Nos. 348-369—Despagnet, +Nos. 137-146—Mérignhac, II. pp. 56-65—Pradier-Fodéré, +II. Nos. 1001-1015—Nys, I. pp. 379-398—Rivier, I. § 7—Calvo, +IV. §§ 2596-2610—Piccioni's "Essai sur la neutralité perpétuelle" (2nd +ed. 1902)—Regnault, "Des effets de la neutralité perpétuelle" (1898)—Tswettcoff, +"De la situation juridique des états neutralisés" (1895)—Morand in R.G. I. (1894), pp. 522-537—Hagerup in R.G. XII. (1909), pp. 577-602—Nys in R.I. 2nd Ser. II. (1900), pp. 468-583, III. (1901), p. 15—Westlake in R.I. 2nd Ser. III. (1901), pp. 389-397—Winslow in A.J. @@ -9427,7 +9386,7 @@ II. (1908), pp. 366-386—Wicker in A.J. V. (1911), pp. 639-654.</p> <div class="sidenote"><p>Conception of Neutralised States.</p></div> -<p>§ 95. <a name="A_neutralised_State95" id="A_neutralised_State95"></a>A neutralised State is a State whose independence +<p>§ 95. <a name="A_neutralised_State95" id="A_neutralised_State95"></a>A neutralised State is a State whose independence and integrity are for all the future guaranteed by an international convention of the Powers, under<span class="pagenum"><a name="Page_148" id="Page_148">[Pg 148]</a></span> the condition that such State binds itself never to take @@ -9450,11 +9409,11 @@ and the like, which has the effect that war cannot there be made and prepared.</p> <div class="footnote"><p><a name="Footnote_152_152" id="Footnote_152_152"></a><a href="#FNanchor_152_152"><span class="label">[152]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Although_the_Open_Sea72">Vol. II. § 72.</a></p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Although_the_Open_Sea72">Vol. II. § 72.</a></p></div> <div class="sidenote"><p>Act and Condition of Neutralisation.</p></div> -<p>§ 96. <a name="Without_thereby96" id="Without_thereby96"></a>Without thereby becoming a neutralised State, +<p>§ 96. <a name="Without_thereby96" id="Without_thereby96"></a>Without thereby becoming a neutralised State, every State can conclude a treaty with another State and undertake the obligation to remain neutral if such other State enters upon war. The act through which @@ -9490,19 +9449,19 @@ of territory without the consent of the Powers.<a name="FNanchor_154_154" id="FN party to the treaty that neutralised Luxemburg in 1867, to take part in the guarantee of this neutralisation. See article 2 of the Treaty of London of May 11, 1867: "sous la sanction de la garantie collective des -puissances signataires, à l'exception de la Belgique, qui est elle-même -un état neutre."</p></div> +puissances signataires, à l'exception de la Belgique, qui est elle-même +un état neutre."</p></div> <div class="footnote"><p><a name="Footnote_154_154" id="Footnote_154_154"></a><a href="#FNanchor_154_154"><span class="label">[154]</span></a> This is a much discussed and very controverted point. See - Descamps, "La Neutralité de la Belgique" (1902), pp. 508-527; Fauchille + Descamps, "La Neutralité de la Belgique" (1902), pp. 508-527; Fauchille in R.G. II. (1895), pp. 400-439; Westlake in R.I. 2nd Ser. III. (1901), p. 396; Graux in R.I. 2nd Ser. VII. (1905), pp. 33-52; Rivier, I. p. 172. See also - below, § <a href="#The_object_of_cession215">215</a>.</p></div> + below, § <a href="#The_object_of_cession215">215</a>.</p></div> <div class="sidenote"><p>International position of Neutralised States.</p></div> -<p>§ 97. <a name="Since_a_neutralised97" id="Since_a_neutralised97"></a>Since a neutralised State is under the obligation +<p>§ 97. <a name="Since_a_neutralised97" id="Since_a_neutralised97"></a>Since a neutralised State is under the obligation not to make war against any other State, except when attacked, and not to conclude treaties of alliance, guaranty, and the like, it is frequently maintained that @@ -9559,7 +9518,7 @@ initiative where action by a Great Power would create suspicion and reservedness on the part of other Powers.</p> <div class="footnote"><p><a name="Footnote_155_155" id="Footnote_155_155"></a><a href="#FNanchor_155_155"><span class="label">[155]</span></a> See - below, § <a href="#Independence_is_not126">126</a>.</p></div> + below, § <a href="#Independence_is_not126">126</a>.</p></div> <div class="footnote"><p><a name="Footnote_156_156" id="Footnote_156_156"></a><a href="#FNanchor_156_156"><span class="label">[156]</span></a> The case of Luxemburg, which became neutralised under the condition not to keep an armed force with the exception of a police, is @@ -9585,11 +9544,11 @@ which was annexed by Austria in 1846 (see Nys, I. pp. 383-385), cannot be quoted as an example that neutralised States have no durability. This annexation was only the last act in the drama of the absorption of Poland by her neighbours. As regards the former Congo Free State, see - below, § <a href="#The_former_Congo101">101</a>.</p></div> + below, § <a href="#The_former_Congo101">101</a>.</p></div> <div class="sidenote"><p>Switzerland.</p></div> -<p>§ 98. The Swiss Confederation,<a name="FNanchor_158_158" id="FNanchor_158_158"></a><a href="#Footnote_158_158" class="fnanchor">[158]</a> which was recognised +<p>§ 98. The Swiss Confederation,<a name="FNanchor_158_158" id="FNanchor_158_158"></a><a href="#Footnote_158_158" class="fnanchor">[158]</a> which was recognised by the Westphalian Peace of 1648, has pursued a traditional policy of neutrality since that time. During the French Revolution and the Napoleonic Wars, however, @@ -9621,14 +9580,14 @@ on her territory, and guarded them till after the war.</p> <div class="footnote"><p><a name="Footnote_158_158" id="Footnote_158_158"></a><a href="#FNanchor_158_158"><span class="label">[158]</span></a> See Schweizer, "Geschichte der schweizerischen -Neutralität," 2 vols. (1895).</p></div> +Neutralität," 2 vols. (1895).</p></div> <div class="footnote"><p><a name="Footnote_159_159" id="Footnote_159_159"></a><a href="#FNanchor_159_159"><span class="label">[159]</span></a> See Martens, N.R. II. pp. 157, 173, 419, 740.</p></div> <div class="sidenote"><p>Belgium.</p></div> -<p>§ 99. Belgium<a name="FNanchor_160_160" id="FNanchor_160_160"></a><a href="#Footnote_160_160" class="fnanchor">[160]</a> became neutralised from the moment +<p>§ 99. Belgium<a name="FNanchor_160_160" id="FNanchor_160_160"></a><a href="#Footnote_160_160" class="fnanchor">[160]</a> became neutralised from the moment she was recognised as an independent State in 1831. The Treaty of London, signed on November 15, 1831, by Great Britain, Austria, Belgium, France, @@ -9642,7 +9601,7 @@ and which is the final treaty concerning the separation of Belgium from the Netherlands.</p> <div class="footnote"><p><a name="Footnote_160_160" id="Footnote_160_160"></a><a href="#FNanchor_160_160"><span class="label">[160]</span></a> See - Descamps, "La Neutralité de la Belgique" (1902).</p></div> + Descamps, "La Neutralité de la Belgique" (1902).</p></div> <div class="footnote"><p><a name="Footnote_161_161" id="Footnote_161_161"></a><a href="#FNanchor_161_161"><span class="label">[161]</span></a> See Martens, N.R. XI. pp. 394 and 404.</p></div> @@ -9656,7 +9615,7 @@ and possesses a strong army.</p> <div class="sidenote"><p>Luxemburg.</p></div> -<p>§ 100. <a name="Th100" id="Th100"></a>The Grand Duchy of Luxemburg<a name="FNanchor_163_163" id="FNanchor_163_163"></a><a href="#Footnote_163_163" class="fnanchor">[163]</a> was since +<p>§ 100. <a name="Th100" id="Th100"></a>The Grand Duchy of Luxemburg<a name="FNanchor_163_163" id="FNanchor_163_163"></a><a href="#Footnote_163_163" class="fnanchor">[163]</a> was since 1815 in personal union with the Netherlands, but at<span class="pagenum"><a name="Page_153" id="Page_153">[Pg 153]</a></span> the same time a member of the Germanic Confederation, and Prussia had since 1856 the right to keep troops @@ -9690,7 +9649,7 @@ as Belgium and Switzerland can.</p> <div class="sidenote"><p>The former Congo Free State.</p></div> -<p>§ 101. <a name="The_former_Congo101" id="The_former_Congo101"></a>The former Congo Free State,<a name="FNanchor_165_165" id="FNanchor_165_165"></a><a href="#Footnote_165_165" class="fnanchor">[165]</a> which was recognised +<p>§ 101. <a name="The_former_Congo101" id="The_former_Congo101"></a>The former Congo Free State,<a name="FNanchor_165_165" id="FNanchor_165_165"></a><a href="#Footnote_165_165" class="fnanchor">[165]</a> which was recognised as an independent State by the Berlin Congo Conference<a name="FNanchor_166_166" id="FNanchor_166_166"></a><a href="#Footnote_166_166" class="fnanchor">[166]</a> of 1884-1885, was a permanently neutralised State from 1885-1908, but its neutralisation was @@ -9713,9 +9672,9 @@ the Congo Free State was not guaranteed either. In 1908<a name="FNanchor_168_168" id="FNanchor_168_168"></a><a href="#Footnote_168_168" class="fnanchor">[168]</a> the Congo Free State merged by cession into Belgium.</p> -<div class="footnote"><p><a name="Footnote_165_165" id="Footnote_165_165"></a><a href="#FNanchor_165_165"><span class="label">[165]</span></a> Moynier, "La fondation de l'État indépendant du Congo" -(1887); Hall, § 26; Westlake, I. p., 30; Navez, "Essai historique sur -l'État Indépendant du Congo," Vol. I. (1905); Reeves in A.J. III. +<div class="footnote"><p><a name="Footnote_165_165" id="Footnote_165_165"></a><a href="#FNanchor_165_165"><span class="label">[165]</span></a> Moynier, "La fondation de l'État indépendant du Congo" +(1887); Hall, § 26; Westlake, I. p., 30; Navez, "Essai historique sur +l'État Indépendant du Congo," Vol. I. (1905); Reeves in A.J. III. (1909), pp. 99-118.</p></div> <div class="footnote"><p><a name="Footnote_166_166" id="Footnote_166_166"></a><a href="#FNanchor_166_166"><span class="label">[166]</span></a> See @@ -9738,15 +9697,15 @@ into Belgium.</p></div> <span class="smaller">NON-CHRISTIAN STATES</span> </h4> -<p class="indh1">Westlake, I. p. 40—Phillimore, I. §§ 27-33—Bluntschli, §§ -1-16—Heffter, § 7—Gareis, § 10—Rivier, I. pp. 13-18—Bonfils, -No. 40—Martens, § 41—Nys, I. pp. 122-125—Westlake, Chapters, +<p class="indh1">Westlake, I. p. 40—Phillimore, I. §§ 27-33—Bluntschli, §§ +1-16—Heffter, § 7—Gareis, § 10—Rivier, I. pp. 13-18—Bonfils, +No. 40—Martens, § 41—Nys, I. pp. 122-125—Westlake, Chapters, pp. 114-143. </p> <div class="sidenote"><p>No essential difference between Christian and other States.</p></div> -<p>§ 102. It will be remembered from the previous discussion +<p>§ 102. It will be remembered from the previous discussion of the dominion<a name="FNanchor_169_169" id="FNanchor_169_169"></a><a href="#Footnote_169_169" class="fnanchor">[169]</a> of the Law of Nations that this dominion extends beyond the Christian and includes now the Mahometan State of Turkey and the @@ -9763,12 +9722,12 @@ would create confidence in the impartiality of her Courts of Justice, this restriction would certainly be abolished.</p> <div class="footnote"><p><a name="Footnote_169_169" id="Footnote_169_169"></a><a href="#FNanchor_169_169"><span class="label">[169]</span></a> See - above, § <a href="#The_present_range28">28</a>.</p></div> + above, § <a href="#The_present_range28">28</a>.</p></div> <div class="sidenote"><p>International position of non-Christian States except Turkey and Japan.</p></div> -<p>§ 103. <a name="Doubtful_is_the103" id="Doubtful_is_the103"></a>Doubtful is the position of all non-Christian +<p>§ 103. <a name="Doubtful_is_the103" id="Doubtful_is_the103"></a>Doubtful is the position of all non-Christian States except Turkey and Japan, such as China, Morocco, Siam, Persia, and further Abyssinia, although the latter is a Christian State, and although China, Persia, @@ -9850,25 +9809,25 @@ for its settlement.</p></div> </h4> -<p class="indh1">Hall, § 98—Westlake, I. pp. 37-39—Phillimore, I. §§ -278-440—Twiss, I. §§ 206-207—Taylor, §§ 277, 278, 282—Wharton, -I. § 70, p. 546—Moore, I. § 18—Bluntschli, § 172—Heffter, §§ -40-41—Geffcken in Holtzendorff, II. pp. 151-222—Gareis, § -13—Liszt, § 5—Ullmann, § 28—Bonfils, Nos. 370-396—Despagnet, -Nos. 147-164—Mérignhac, II. pp. 119-153—Nys, II. pp. -297-324—Rivier, I. § 8—Fiore, I. Nos. 520, 521—Martens, I. § +<p class="indh1">Hall, § 98—Westlake, I. pp. 37-39—Phillimore, I. §§ +278-440—Twiss, I. §§ 206-207—Taylor, §§ 277, 278, 282—Wharton, +I. § 70, p. 546—Moore, I. § 18—Bluntschli, § 172—Heffter, §§ +40-41—Geffcken in Holtzendorff, II. pp. 151-222—Gareis, § +13—Liszt, § 5—Ullmann, § 28—Bonfils, Nos. 370-396—Despagnet, +Nos. 147-164—Mérignhac, II. pp. 119-153—Nys, II. pp. +297-324—Rivier, I. § 8—Fiore, I. Nos. 520, 521—Martens, I. § 84—Fiore, "Della condizione giuridica internazionale della chiesa e del Papa" (1887)—Bombard, "Le Pape et le droit des gens" -(1888)—Imbart-Latour, "La papauté en droit international" -(1893)—Olivart, "Le Pape, les états de l'église et l'Italie" -(1897)—Chrétien in R.G. VI. (1899), pp. 281-291—Bompart in R.G. +(1888)—Imbart-Latour, "La papauté en droit international" +(1893)—Olivart, "Le Pape, les états de l'église et l'Italie" +(1897)—Chrétien in R.G. VI. (1899), pp. 281-291—Bompart in R.G. VII. (1900), pp. 369-387—Higgins in <i>The Journal of the Society for Comparative Legislation</i>, New Series, IX. (1907), pp. 252-264. </p> <div class="sidenote"><p>The former Papal States.</p></div> -<p>§ 104. When the Law of Nations began to grow up +<p>§ 104. When the Law of Nations began to grow up among the States of Christendom, the Pope was the monarch of one of those States—namely, the so-called Papal States. This State owed its existence to Pepin-le-Bref @@ -9894,7 +9853,7 @@ only.<span class="pagenum"><a name="Page_158" id="Page_158">[Pg 158]</a></span>< <div class="sidenote"><p>The Italian Law of Guaranty.</p></div> -<p>§ 105. When, in 1870, Italy annexed the Papal +<p>§ 105. When, in 1870, Italy annexed the Papal States and made Rome her capital, she had to undertake the task of creating a position for the Holy See and the Pope which was consonant with the importance @@ -9964,7 +9923,7 @@ provided by the Law of Guaranty.</p></div> <div class="sidenote"><p>International position of the Holy See and the Pope.</p></div> -<p>§ 106. <a name="The_Law_of_Guaranty106" id="The_Law_of_Guaranty106"></a>The Law of Guaranty is not International +<p>§ 106. <a name="The_Law_of_Guaranty106" id="The_Law_of_Guaranty106"></a>The Law of Guaranty is not International but Italian Municipal Law, and the members of the Family of Nations have hitherto not made any special arrangements with regard to the International position @@ -10049,7 +10008,7 @@ envoy in Paris. Details of the case are to be found in R.I. 2nd Ser. IX. <div class="sidenote"><p>Violation of the Holy See and the Pope.</p></div> -<p>§ 107. Since the Holy See has no power whatever +<p>§ 107. Since the Holy See has no power whatever to protect herself and the person of the Pope against violations, the question as to the protection of the Holy See and the person of the Pope arises. I believe that, @@ -10078,7 +10037,7 @@ Holy See and the Pope.</p> <div class="sidenote"><p>European States.</p></div> -<p>§ 108. All the seventy-four European States are, of +<p>§ 108. All the seventy-four European States are, of course, members of the Family of Nations. They are the following:</p> @@ -10149,7 +10108,7 @@ the following:</p> <div class="box5"> -<p class="indh">Kingdoms: Prussia, Bavaria, Saxony, Würtemberg.</p> +<p class="indh">Kingdoms: Prussia, Bavaria, Saxony, Würtemberg.</p> <p class="indh">Grand-Duchies: Baden, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg.</p> @@ -10162,7 +10121,7 @@ Saxe-Weimar.</p> Line, Lippe, Schaumburg-Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sondershausen Waldeck.</p> -<p class="indh">Free Towns are: Bremen, Lübeck, Hamburg.</p> +<p class="indh">Free Towns are: Bremen, Lübeck, Hamburg.</p> </div> @@ -10175,13 +10134,13 @@ Schwarzburg-Sondershausen Waldeck.</p> Fribourg, Soleure, Basle (Stadt und Landschaft), Schaffhausen, Appenzell (beider Rhoden), St. Gall, Grisons, Aargau, Thurgau, -Tessin, Vaud, Valais, Neuchâtel, Geneva.</p> +Tessin, Vaud, Valais, Neuchâtel, Geneva.</p> </div> <div class="sidenote"><p>American States.</p></div> -<p>§ 109. In America there are twenty-one States +<p>§ 109. In America there are twenty-one States which are members of the Family of Nations, but it must be emphasised that the member-States of the five Federal States on the American continent, although @@ -10236,7 +10195,7 @@ their member-States.</p> <div class="sidenote"><p>African States.</p></div> -<p>§ 110. In Africa the Negro Republic of Liberia is +<p>§ 110. In Africa the Negro Republic of Liberia is the only real and full member of the Family of Nations. Egypt and Tunis are half-Sovereign, the one under Turkish suzerainty, the other under French protectorate. @@ -10249,7 +10208,7 @@ the Soudan certainly has not.</p> <div class="sidenote"><p>Asiatic States.</p></div> -<p>§ 111. In Asia only Japan is a full and real member +<p>§ 111. In Asia only Japan is a full and real member of the Family of Nations. Persia, China, Siam, Tibet, and Afghanistan are for some parts only within that family.<span class="pagenum"><a name="Page_165" id="Page_165">[Pg 165]</a></span></p> @@ -10267,20 +10226,20 @@ family.<span class="pagenum"><a name="Page_165" id="Page_165">[Pg 165]</a></span </h4> -<p class="indh1">Vattel, I. §§ 13-25—Hall, § 7—Westlake, I. pp. 293-296—Lawrence, § 57—Phillimore, -I. §§ 144-147—Twiss, I. § 106—Wharton, § 60—Moore, I. -§ 23—Bluntschli, §§ 64-81—Hartmann, § 15—Heffter, § 26—Holtzendorff -in Holtzendorff, II. pp. 47-51—Gareis, §§ 24-25—Liszt, § 7—Ullmann, -§ 38—Bonfils, Nos. 235-241—Despagnet, Nos. 165-166—Nys, II. pp. -176-181—Pradier-Fodéré, I. Nos. 165-195—Mérignhac, I. pp. 233-238—Rivier, -I. § 19—Fiore, I. Nos. 367-371—Martens, I. § 72—Fontenay, -"Des droits et des devoirs des États entre eux" (1888)—Pillet in R.G. V. +<p class="indh1">Vattel, I. §§ 13-25—Hall, § 7—Westlake, I. pp. 293-296—Lawrence, § 57—Phillimore, +I. §§ 144-147—Twiss, I. § 106—Wharton, § 60—Moore, I. +§ 23—Bluntschli, §§ 64-81—Hartmann, § 15—Heffter, § 26—Holtzendorff +in Holtzendorff, II. pp. 47-51—Gareis, §§ 24-25—Liszt, § 7—Ullmann, +§ 38—Bonfils, Nos. 235-241—Despagnet, Nos. 165-166—Nys, II. pp. +176-181—Pradier-Fodéré, I. Nos. 165-195—Mérignhac, I. pp. 233-238—Rivier, +I. § 19—Fiore, I. Nos. 367-371—Martens, I. § 72—Fontenay, +"Des droits et des devoirs des États entre eux" (1888)—Pillet in R.G. V. (1898), pp. 66 and 236, VI. (1899), p. 503—Cavaglieri, "I diritti fondamentali -degli Stati nella Società Internazionale" (1906).</p> +degli Stati nella Società Internazionale" (1906).</p> <div class="sidenote"><p>The so-called Fundamental Rights.</p></div> -<p>§ 112. Until the last two decades of the nineteenth +<p>§ 112. Until the last two decades of the nineteenth century all jurists agreed that the membership of the Family of Nations includes so-called fundamental rights for States. Such rights are chiefly enumerated as the @@ -10316,19 +10275,19 @@ therefore only adequate to their importance to discuss them in a special chapter under that heading.</p> <div class="footnote"><p><a name="Footnote_177_177" id="Footnote_177_177"></a><a href="#FNanchor_177_177"><span class="label">[177]</span></a> See - Stoerk in Holtzendorff's "Encyklopädie der + Stoerk in Holtzendorff's "Encyklopädie der Rechtswissenschaft," 2nd ed. (1890), p. 1291; Jellinek, "System der -subjectiven öffentlichen Rechte" (1892), p. 302; Heilborn, "System," p. +subjectiven öffentlichen Rechte" (1892), p. 302; Heilborn, "System," p. 279; and others. The arguments of these writers have met, however, considerable resistance, and the existence of fundamental rights of States is emphatically defended by other writers. See, for instance, -Pillet, l.c., Liszt, § 7, and Gareis, §§ 24 and 25. Westlake, I. p. 293, +Pillet, l.c., Liszt, § 7, and Gareis, §§ 24 and 25. Westlake, I. p. 293, now joins the ranks of those writers who deny the existence of fundamental rights.</p></div> <div class="sidenote"><p>International Personality a Body of Qualities.</p></div> -<p>§ 113. <a name="International_Personality113" id="International_Personality113"></a>International Personality is the term which +<p>§ 113. <a name="International_Personality113" id="International_Personality113"></a>International Personality is the term which characterises fitly the position of the States within the Family of Nations, since a State acquires International Personality through its recognition as a member. What @@ -10369,15 +10328,15 @@ another and recognise their responsibility for violations of these qualities.</p> <div class="footnote"><p><a name="Footnote_178_178" id="Footnote_178_178"></a><a href="#FNanchor_178_178"><span class="label">[178]</span></a> See - above, § <a href="#Wh12">12</a>.</p></div> + above, § <a href="#Wh12">12</a>.</p></div> <div class="footnote"><p><a name="Footnote_179_179" id="Footnote_179_179"></a><a href="#FNanchor_179_179"><span class="label">[179]</span></a> See - above, § <a href="#Since_the_Law14">14</a>.</p></div> + above, § <a href="#Since_the_Law14">14</a>.</p></div> <div class="sidenote"><p>Other Characteristics of the position of the States within the Family of Nations.</p></div> -<p>§ 114. But the position of the States within the +<p>§ 114. But the position of the States within the Family of Nations is not exclusively characterised by these qualities. The States make a community because there is constant intercourse between them. Intercourse @@ -10407,16 +10366,16 @@ in this chapter.</p> </h4> -<p class="indh1">Vattel, II. §§ 35-48—Westlake, I. pp. 308-312—Lawrence, §§ -112-119—Phillimore, I. § 147, II. §§ 27-43—Twiss, I. § -12—Halleck, I. pp. 116-140 —Taylor, § 160—Wheaton, §§ -152-159—Moore, I. § 24—Bluntschli, §§ 81-94—Hartmann, § -14—Heffter, §§ 27-28—Holtzendorff in Holtzendorff, II. pp. -11-14—Ullmann, §§ 36 and 37—Bonfils, Nos. 272-278—Despagnet, -Nos. 167-171—Pradier-Fodéré, II. Nos. 484-594—Mérignhac, I. pp. -310-320—Rivier, I. § 9—Nys, II. pp. 194-199, 208-218—Calvo, I. -§§ 210-259—Fiore, I. Nos. 428-451, and Code, Nos. -388-421—Martens, I. §§ 70-71—Lawrence, Essays, pp. +<p class="indh1">Vattel, II. §§ 35-48—Westlake, I. pp. 308-312—Lawrence, §§ +112-119—Phillimore, I. § 147, II. §§ 27-43—Twiss, I. § +12—Halleck, I. pp. 116-140 —Taylor, § 160—Wheaton, §§ +152-159—Moore, I. § 24—Bluntschli, §§ 81-94—Hartmann, § +14—Heffter, §§ 27-28—Holtzendorff in Holtzendorff, II. pp. +11-14—Ullmann, §§ 36 and 37—Bonfils, Nos. 272-278—Despagnet, +Nos. 167-171—Pradier-Fodéré, II. Nos. 484-594—Mérignhac, I. pp. +310-320—Rivier, I. § 9—Nys, II. pp. 194-199, 208-218—Calvo, I. +§§ 210-259—Fiore, I. Nos. 428-451, and Code, Nos. +388-421—Martens, I. §§ 70-71—Lawrence, Essays, pp. 191-213—Westlake, Chapters, pp. 86-109—Huber, "Die Gleichheit der Staaten" (1909)—Streit in R.I. 2nd Ser. II. pp. 5-27—Hicks in A.J. II. (1908), pp. 530-561. @@ -10424,7 +10383,7 @@ in A.J. II. (1908), pp. 530-561. <div class="sidenote"><p>Legal Equality of States.</p></div> -<p>§ 115. <a name="The_equality_before115" id="The_equality_before115"></a>The equality before International Law of all +<p>§ 115. <a name="The_equality_before115" id="The_equality_before115"></a>The equality before International Law of all member-States of the Family of Nations is an invariable quality derived from their International Personality.<a name="FNanchor_180_180" id="FNanchor_180_180"></a><a href="#Footnote_180_180" class="fnanchor">[180]</a> Whatever inequality may exist between States as @@ -10434,7 +10393,7 @@ equals as International Persons. This legal equality has three important consequences:</p> <div class="footnote"><p><a name="Footnote_180_180" id="Footnote_180_180"></a><a href="#FNanchor_180_180"><span class="label">[180]</span></a> See - above, §§ <a href="#Since_the_Law14">14</a> + above, §§ <a href="#Since_the_Law14">14</a> and <a href="#International_Personality113">113</a>.<span class="pagenum"><a name="Page_169" id="Page_169">[Pg 169]</a></span></p></div> <p>The first is that, whenever a question arises which @@ -10461,13 +10420,13 @@ or have submitted themselves to such jurisdiction by suing in such foreign Court.<a name="FNanchor_184_184" id="FNanchor_184_184"></a><a href="#Footnote_184_184" class="fnanchor">[184]</a></p> <div class="footnote"><p><a name="Footnote_181_181" id="Footnote_181_181"></a><a href="#FNanchor_181_181"><span class="label">[181]</span></a> See - Phillimore, II. § 113 A; Nys, II. pp. 288-296; Loening, -"Die Gerichtsbarkeit über fremde Staaten und Souveräne" (1903); and the + Phillimore, II. § 113 A; Nys, II. pp. 288-296; Loening, +"Die Gerichtsbarkeit über fremde Staaten und Souveräne" (1903); and the following cases:—The United States <i>v.</i> Wagner (1867), L.R. 2 Ch. App. 582; The Republic of Mexico <i>v.</i> Francisco de Arrangoiz, and others, 11 Howard's Practice Reports 1 (quoted by Scott, "Cases on International Law," 1902, p. 170); The Sapphire (1870), 11 Wallace, 164. See also - below, § <a href="#As_regards_however348">348</a>.</p></div> + below, § <a href="#As_regards_however348">348</a>.</p></div> <div class="footnote"><p><a name="Footnote_182_182" id="Footnote_182_182"></a><a href="#FNanchor_182_182"><span class="label">[182]</span></a> See De Haber <i>v.</i> the Queen of Portugal (1851), 17 Ch. D. @@ -10479,7 +10438,7 @@ Law," 1902, p. 170); The Sapphire (1870), 11 Wallace, 164. See also <div class="footnote"><p><a name="Footnote_184_184" id="Footnote_184_184"></a><a href="#FNanchor_184_184"><span class="label">[184]</span></a> Provided the cross-suit is really connected with the claim in the action. As regards the German case of Hellfeld <i>v.</i> the Russian -Government, see Köhler in Z.V. IV. (1910), pp. 309-333; the opinions of +Government, see Köhler in Z.V. IV. (1910), pp. 309-333; the opinions of Laband, Meili, and Seuffert, <i>ibidem</i>, pp. 334-448; Baty in <i>The Law Magazine and Review</i>, XXV. (1909-1910), p. 207; Wolfman in A.J. IV. (1910), pp. 373-383.</p></div> @@ -10491,7 +10450,7 @@ considered International Persons, are not equals of the full members of the Family of Nations.</p> <div class="footnote"><p><a name="Footnote_185_185" id="Footnote_185_185"></a><a href="#FNanchor_185_185"><span class="label">[185]</span></a> See - above, § <a href="#Doubtful_is_the103">103</a>.</p></div> + above, § <a href="#Doubtful_is_the103">103</a>.</p></div> <p>Secondly, States under suzerainty and under protectorate which are half-Sovereign and under the<span class="pagenum"><a name="Page_170" id="Page_170">[Pg 170]</a></span> @@ -10500,7 +10459,7 @@ of external affairs, are not equals of States which enjoy full sovereignty.</p> <div class="footnote"><p><a name="Footnote_186_186" id="Footnote_186_186"></a><a href="#FNanchor_186_186"><span class="label">[186]</span></a> See - above, §§ <a href="#Th91">91</a> and <a href="#The_position_of_a_State93">93</a>.</p></div> + above, §§ <a href="#Th91">91</a> and <a href="#The_position_of_a_State93">93</a>.</p></div> <p>Thirdly, the part-sovereign member-States of a Federal State are not equals of full-Sovereign States.</p> @@ -10513,7 +10472,7 @@ conditions of the special case.</p> <div class="sidenote"><p>Political Hegemony of Great Powers.</p></div> -<p>§ 116. Legal equality must not be confounded with +<p>§ 116. Legal equality must not be confounded with political equality. The enormous differences between States as regards their strength are the result of a natural inequality which, apart from rank and titles, finds its @@ -10563,18 +10522,18 @@ other Great Powers, becomes a Great Power itself.<a name="FNanchor_188_188" id=" <div class="footnote"><p><a name="Footnote_187_187" id="Footnote_187_187"></a><a href="#FNanchor_187_187"><span class="label">[187]</span></a> This is, however, maintained by a few writers. See, for -instance, Lorimer, I. p. 170; Lawrence, §§ 113 and 114; Westlake, I. pp. +instance, Lorimer, I. p. 170; Lawrence, §§ 113 and 114; Westlake, I. pp. 308, 309; and Pitt Cobbett, "Cases and Opinions on International Law," 2nd ed. vol. I. (1909), p. 50.</p></div> <div class="footnote"><p><a name="Footnote_188_188" id="Footnote_188_188"></a><a href="#FNanchor_188_188"><span class="label">[188]</span></a> In contradistinction to the generally recognised political -hegemony of the Great Powers, Lawrence (§§ 113 and 114) and Taylor (§ +hegemony of the Great Powers, Lawrence (§§ 113 and 114) and Taylor (§ 69) maintain that the position of the Great Powers is <i>legally</i> superior to that of the smaller States, being a "Primacy" or "Overlordship." This doctrine, which professedly seeks to abolish the universally recognised rule of the equality of States, has no sound basis, and confounds political with legal inequality. I cannot agree with Lawrence when he -says (§ 114, p. 276):—"... in a system of rules depending, like +says (§ 114, p. 276):—"... in a system of rules depending, like International Law, for their validity on general consent, what is political is legal also, if it is generally accepted and acted on." The Great Powers are <i>de facto</i>, by the smaller States, recognised as @@ -10583,7 +10542,7 @@ legal superiority.</p></div> <div class="sidenote"><p>Rank of States.</p></div> -<p>§ 117. Although the States are equals as International +<p>§ 117. Although the States are equals as International Persons, they are nevertheless not equals as regards rank. The differences as regards rank are recognised by International Law, but the legal equality @@ -10598,7 +10557,7 @@ important part as in the past, when questions of etiquette gave occasion for much dispute. It was in the sixteenth and seventeenth centuries that the rank of the different States was zealously discussed under the heading -of <i>droit de préséance</i> or <i>questions de préséance</i>. The +of <i>droit de préséance</i> or <i>questions de préséance</i>. The Congress at Vienna of 1815 intended to establish an order of precedence within the Family of Nations, but dropped this scheme on account of practical difficulties. @@ -10620,7 +10579,7 @@ and their monarchs address one another as honours always precede other States.</p> <div class="footnote"><p><a name="Footnote_189_189" id="Footnote_189_189"></a><a href="#FNanchor_189_189"><span class="label">[189]</span></a> See - below, § <a href="#Ambassadors_form_the_first365">365</a>.</p></div> + below, § <a href="#Ambassadors_form_the_first365">365</a>.</p></div> <p>(2) Full-Sovereign States always precede those under suzerainty or protectorate.</p> @@ -10637,7 +10596,7 @@ and, on the other, grand dukes and other monarchs.</p> <div class="sidenote"><p>The "Alternat."</p></div> -<p>§ 118. To avoid questions of precedence, on signing +<p>§ 118. To avoid questions of precedence, on signing a treaty, States of the same rank observe a conventional usage which is called the "Alternat." According to that usage the signatures of the signatory States of a @@ -10646,11 +10605,11 @@ by lot, the representative of each State signing first the copy which belongs to his State. But sometimes that order is not observed, and the States sign either in the alphabetical order of their names in French or in -no order at all (<i>pêle-mêle</i>).</p> +no order at all (<i>pêle-mêle</i>).</p> <div class="sidenote"><p>Titles of States.</p></div> -<p>§ 119. <a name="At_the_present_time119" id="At_the_present_time119"></a>At the present time, States, save in a few +<p>§ 119. <a name="At_the_present_time119" id="At_the_present_time119"></a>At the present time, States, save in a few exceptional instances, have no titles, although formerly such titles did exist. Thus the former Republic of Venice as well as that of Genoa was addressed as "Serene @@ -10710,17 +10669,17 @@ the Kings of Hungary since 1758 <i>Rex Apostolicus</i>.</p> </h4> -<p class="indh1">Vattel, II. §§ 35-48—Lawrence, § 120—Phillimore, II. §§ 27-43—Halleck, I. -pp. 124-142—Taylor, § 162—Wheaton, § 160—Bluntschli, §§ 82-83—Hartmann, -§ 15—Heffter, §§ 32, 102, 103—Holtzendorff in Holtzendorff, -II. pp. 64-69—Ullmann, § 38—Bonfils, Nos. 279-284—Despagnet, Nos. -184-186—Moore, I. pp. 310-320—Pradier-Fodéré, II. Nos. 451-483—Rivier, -I. pp. 260-262—Nys, II. pp. 212-214—Calvo, III. §§ 1300-1302—Fiore, -I. Nos. 439-451—Martens, I. § 78.</p> +<p class="indh1">Vattel, II. §§ 35-48—Lawrence, § 120—Phillimore, II. §§ 27-43—Halleck, I. +pp. 124-142—Taylor, § 162—Wheaton, § 160—Bluntschli, §§ 82-83—Hartmann, +§ 15—Heffter, §§ 32, 102, 103—Holtzendorff in Holtzendorff, +II. pp. 64-69—Ullmann, § 38—Bonfils, Nos. 279-284—Despagnet, Nos. +184-186—Moore, I. pp. 310-320—Pradier-Fodéré, II. Nos. 451-483—Rivier, +I. pp. 260-262—Nys, II. pp. 212-214—Calvo, III. §§ 1300-1302—Fiore, +I. Nos. 439-451—Martens, I. § 78.</p> <div class="sidenote"><p>Dignity a Quality.</p></div> -<p>§ 120. The majority of text-book writers maintain +<p>§ 120. The majority of text-book writers maintain that there is a fundamental right of reputation and of good name belonging to every State. Such a right, however, does not exist, because no duty corresponding<span class="pagenum"><a name="Page_175" id="Page_175">[Pg 175]</a></span> @@ -10758,7 +10717,7 @@ the Dignity of States.</p></div> -<p>§ 121. <a name="Since_dignity_is_a_recognised121" id="Since_dignity_is_a_recognised121"></a>Since dignity is a recognised quality of States +<p>§ 121. <a name="Since_dignity_is_a_recognised121" id="Since_dignity_is_a_recognised121"></a>Since dignity is a recognised quality of States as International Persons, all members of the Family of Nations grant reciprocally to one another by custom certain rights and ceremonial privileges. These are @@ -10802,7 +10761,7 @@ Criminal Law," article 91.</p></div> <div class="sidenote"><p>Maritime Ceremonials.</p></div> -<p>§ 122. <a name="Connected_with_the_dignity122" id="Connected_with_the_dignity122"></a>Connected with the dignity of States are the +<p>§ 122. <a name="Connected_with_the_dignity122" id="Connected_with_the_dignity122"></a>Connected with the dignity of States are the maritime ceremonials between vessels and between vessels and forts which belong to different States. In former times discord and jealousy existed between the @@ -10821,10 +10780,10 @@ maritime ceremonials to be observed by foreign merchantmen.<a name="FNanchor_194 <div class="footnote"><p><a name="Footnote_193_193" id="Footnote_193_193"></a><a href="#FNanchor_193_193"><span class="label">[193]</span></a> See Halleck, I. pp. 124-142, where the matter is treated with all details. See also - below, § <a href="#The_freedom_of_the_Open257">257</a>.</p></div> + below, § <a href="#The_freedom_of_the_Open257">257</a>.</p></div> <div class="footnote"><p><a name="Footnote_194_194" id="Footnote_194_194"></a><a href="#FNanchor_194_194"><span class="label">[194]</span></a> See - below, § <a href="#Theory_and_practice_agree187">187</a>.</p></div> + below, § <a href="#Theory_and_practice_agree187">187</a>.</p></div> <h4> @@ -10832,22 +10791,22 @@ with all details. See also <span class="smaller">INDEPENDENCE AND TERRITORIAL AND PERSONAL SUPREMACY</span> </h4> -<p class="indh1">Vattel, I. Préliminaires, §§ 15-17—Hall, § 10—Westlake, I. pp. -308-312—Lawrence, §§ 58-61—Phillimore, I. §§ 144-149—Twiss, I. -§ 20—Halleck, I. pp. 93-113—Taylor, § 160—Wheaton, §§ -72-75—Bluntschli, §§ 64-69—Hartmann, § 15—Heffter, §§ 29 and -31—Holtzendorff in Holtzendorff, II. pp. 36-60—Gareis, §§ -25-26—Ullmann, § 38—Bonfils, Nos. 253-271—Despagnet, Nos. -187-189—Mérignhac, I. pp. 233-383—Pradier-Fodéré, I. Nos. -287-332—Rivier, I. § 21—Nys, II. pp. 182-184—Calvo, I. §§ +<p class="indh1">Vattel, I. Préliminaires, §§ 15-17—Hall, § 10—Westlake, I. pp. +308-312—Lawrence, §§ 58-61—Phillimore, I. §§ 144-149—Twiss, I. +§ 20—Halleck, I. pp. 93-113—Taylor, § 160—Wheaton, §§ +72-75—Bluntschli, §§ 64-69—Hartmann, § 15—Heffter, §§ 29 and +31—Holtzendorff in Holtzendorff, II. pp. 36-60—Gareis, §§ +25-26—Ullmann, § 38—Bonfils, Nos. 253-271—Despagnet, Nos. +187-189—Mérignhac, I. pp. 233-383—Pradier-Fodéré, I. Nos. +287-332—Rivier, I. § 21—Nys, II. pp. 182-184—Calvo, I. §§ 107-109—Fiore, I. Nos. 372-427, and Code, Nos. 180-387—Martens, -I. §§ 74 and 75—Westlake, Chapters, pp. 86-106. +I. §§ 74 and 75—Westlake, Chapters, pp. 86-106. </p> <div class="sidenote"><p>Independence and Territorial as well as Personal Supremacy as Aspects of Sovereignty.</p></div> -<p>§ 123. Sovereignty as supreme authority, which is +<p>§ 123. Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from @@ -10876,7 +10835,7 @@ point of view.</p> <div class="sidenote"><p>Consequences of Independence and Territorial and Personal Supremacy.</p></div> -<p>§ 124. <a name="Independence_and_territorial124" id="Independence_and_territorial124"></a>Independence and territorial as well as personal +<p>§ 124. <a name="Independence_and_territorial124" id="Independence_and_territorial124"></a>Independence and territorial as well as personal supremacy are not rights, but recognised and therefore protected qualities of States as International Persons. The protection granted to these qualities by @@ -10934,7 +10893,7 @@ abroad.</p> <div class="sidenote"><p>Violations of Independence and Territorial and Personal Supremacy.</p></div> -<p>§ 125. <a name="The_duty_of_every_State125" id="The_duty_of_every_State125"></a>The duty of every State itself to abstain and +<p>§ 125. <a name="The_duty_of_every_State125" id="The_duty_of_every_State125"></a>The duty of every State itself to abstain and to prevent its agents and subjects from any act which contains a violation<a name="FNanchor_195_195" id="FNanchor_195_195"></a><a href="#Footnote_195_195" class="fnanchor">[195]</a> of another State's independence or territorial and personal supremacy is correlative to the @@ -10960,7 +10919,7 @@ to their home State, nor to incite citizens of foreign States to emigration.</p> <div class="footnote"><p><a name="Footnote_195_195" id="Footnote_195_195"></a><a href="#FNanchor_195_195"><span class="label">[195]</span></a> See - below, § <a href="#International_delinquencies155">155</a>.</p></div> + below, § <a href="#International_delinquencies155">155</a>.</p></div> <div class="footnote"><p><a name="Footnote_196_196" id="Footnote_196_196"></a><a href="#FNanchor_196_196"><span class="label">[196]</span></a> But neighbouring States very often give such permission to @@ -10969,13 +10928,13 @@ officers to be stationed on two railway stations of Basle for the purpose of examining the luggage of travellers from Basle to Germany.</p></div> <div class="footnote"><p><a name="Footnote_197_197" id="Footnote_197_197"></a><a href="#FNanchor_197_197"><span class="label">[197]</span></a> See, - however, below (§ <a href="#The_most_important299">299</a>), where the fact is stated that + however, below (§ <a href="#The_most_important299">299</a>), where the fact is stated that some States naturalise an alien through the very fact of his taking domicile on their territory.</p></div> <div class="sidenote"><p>Restrictions upon Independence.</p></div> -<p>§ 126. <a name="Independence_is_not126" id="Independence_is_not126"></a>Independence is not boundless liberty of a +<p>§ 126. <a name="Independence_is_not126" id="Independence_is_not126"></a>Independence is not boundless liberty of a State to do what it likes without any restriction whatever. The mere fact that a State is a member of the Family of Nations restricts its liberty of action with @@ -11000,7 +10959,7 @@ except in self-defence, cannot conclude alliances, and are in other ways hampered in their liberty of action.</p> <div class="footnote"><p><a name="Footnote_198_198" id="Footnote_198_198"></a><a href="#FNanchor_198_198"><span class="label">[198]</span></a> See - above, § <a href="#Since_a_neutralised97">97</a>.</p></div> + above, § <a href="#Since_a_neutralised97">97</a>.</p></div> <p>From a political and a legal point of view it is of great importance that the States imposing and those @@ -11053,7 +11012,7 @@ under an American protectorate.</p> <div class="sidenote"><p>Restrictions upon Territorial Supremacy.</p></div> -<p>§ 127. <a name="Just_like_independence127" id="Just_like_independence127"></a>Just like independence, territorial supremacy +<p>§ 127. <a name="Just_like_independence127" id="Just_like_independence127"></a>Just like independence, territorial supremacy does not give a boundless liberty of action. Thus, by customary International Law every State has a right to demand that its merchantmen can pass through the @@ -11077,18 +11036,18 @@ instance, to stop or to divert the flow of a river which runs from its own into neighbouring territory.<a name="FNanchor_203_203" id="FNanchor_203_203"></a><a href="#Footnote_203_203" class="fnanchor">[203]</a></p> <div class="footnote"><p><a name="Footnote_202_202" id="Footnote_202_202"></a><a href="#FNanchor_202_202"><span class="label">[202]</span></a> Great Britain would seem to uphold an exception to this -rule, for Lord Reay, one of her delegates, declared—see "Deuxième -Conférence Internationale de la Paix, Actes et Documents," vol. III. p. +rule, for Lord Reay, one of her delegates, declared—see "Deuxième +Conférence Internationale de la Paix, Actes et Documents," vol. III. p. 41—the following at the second Hague Peace Conference of 1907: "Nous -reconnaissons qu'en règle générale le neutre est exempt de tout service -militaire dans l'Etat où il réside. Cependant dans les colonies +reconnaissons qu'en règle générale le neutre est exempt de tout service +militaire dans l'Etat où il réside. Cependant dans les colonies britanniques et, dans une certaine mesure, dans tous les pays en voie de -formation, la situation est tout autre et la population toute entière, -sans distinction de nationalité, peut être appelée sous les armes pour -défendre leurs foyers menacés."</p></div> +formation, la situation est tout autre et la population toute entière, +sans distinction de nationalité, peut être appelée sous les armes pour +défendre leurs foyers menacés."</p></div> <div class="footnote"><p><a name="Footnote_203_203" id="Footnote_203_203"></a><a href="#FNanchor_203_203"><span class="label">[203]</span></a> See - below, § <a href="#Apart_from_navigation178a">178 <i>a</i></a>.</p></div> + below, § <a href="#Apart_from_navigation178a">178 <i>a</i></a>.</p></div> <p>In contradistinction to these restrictions by the customary Law of Nations, a State can through treaties<span class="pagenum"><a name="Page_183" id="Page_183">[Pg 183]</a></span> @@ -11111,11 +11070,11 @@ supremacy by treaties with foreign Powers.</p> of Paris of 1783.</p></div> <div class="footnote"><p><a name="Footnote_205_205" id="Footnote_205_205"></a><a href="#FNanchor_205_205"><span class="label">[205]</span></a> It is doubtful whether this restriction is still in force; -see below, § <a href="#Since_no_State_can258">258</a>.</p></div> +see below, § <a href="#Since_no_State_can258">258</a>.</p></div> <div class="sidenote"><p>Restrictions upon Personal Supremacy.</p></div> -<p>§ 128. <a name="Personal_Supremacy_does_not128" id="Personal_Supremacy_does_not128"></a>Personal Supremacy does not give a boundless +<p>§ 128. <a name="Personal_Supremacy_does_not128" id="Personal_Supremacy_does_not128"></a>Personal Supremacy does not give a boundless liberty of action either. Although the citizens of a State remain under its power when abroad, such State is restricted in the exercise of this power with @@ -11141,7 +11100,7 @@ to impose any religious disabilities on any of their subjects.<a name="FNanchor_206_206" id="FNanchor_206_206"></a><a href="#Footnote_206_206" class="fnanchor">[206]</a></p> <div class="footnote"><p><a name="Footnote_206_206" id="Footnote_206_206"></a><a href="#FNanchor_206_206"><span class="label">[206]</span></a> See - above, § <a href="#Recognition_will73">73</a>.</p></div> + above, § <a href="#Recognition_will73">73</a>.</p></div> @@ -11151,19 +11110,19 @@ subjects.<a name="FNanchor_206_206" id="FNanchor_206_206"></a><a href="#Footnote </h4> -<p class="indh1">Vattel, II. §§ 49-53—Hall, §§ 8, 83-86—Westlake, I. pp. -296-304—Phillimore, I. §§ 210-220—Twiss, I. §§ 106-112—Halleck, -I. pp. 93-113—Taylor, §§ 401-409—Wheaton, §§ 61-62—Moore, II. -§§ 215-219—Hartmann, § 15—Heffter, § 30—Holtzendorff in -Holtzendorff, II. pp. 51-56—Gareis, § 25—Liszt, § 7—Ullmann, § -38—Bonfils, Nos. 242-252—Despagnet, Nos. 172-175—Mérignhac, I. -pp. 239-245—Pradier-Fodéré, I. Nos. 211-286—Rivier, I. § -20—Nys, II. pp. 178-181—Calvo, I. §§ 208-209—Fiore, I. Nos. -452-466—Martens, I. § 73—Westlake, Chapters, pp. 110-125.</p> +<p class="indh1">Vattel, II. §§ 49-53—Hall, §§ 8, 83-86—Westlake, I. pp. +296-304—Phillimore, I. §§ 210-220—Twiss, I. §§ 106-112—Halleck, +I. pp. 93-113—Taylor, §§ 401-409—Wheaton, §§ 61-62—Moore, II. +§§ 215-219—Hartmann, § 15—Heffter, § 30—Holtzendorff in +Holtzendorff, II. pp. 51-56—Gareis, § 25—Liszt, § 7—Ullmann, § +38—Bonfils, Nos. 242-252—Despagnet, Nos. 172-175—Mérignhac, I. +pp. 239-245—Pradier-Fodéré, I. Nos. 211-286—Rivier, I. § +20—Nys, II. pp. 178-181—Calvo, I. §§ 208-209—Fiore, I. Nos. +452-466—Martens, I. § 73—Westlake, Chapters, pp. 110-125.</p> <div class="sidenote"><p>Self-preservation an excuse for violations.</p></div> -<p>§ 129. <a name="Fr129" id="Fr129"></a>From the earliest time of the existence of +<p>§ 129. <a name="Fr129" id="Fr129"></a>From the earliest time of the existence of the Law of Nations self-preservation was considered sufficient justification for many acts of a State which violate other States. Although, as a rule, all States @@ -11199,11 +11158,11 @@ suffered and endured by the States concerned.</p> <div class="footnote"><p><a name="Footnote_207_207" id="Footnote_207_207"></a><a href="#FNanchor_207_207"><span class="label">[207]</span></a> This right was formerly frequently called <i>droit de convenance</i>, and was said to exist in the right of every State to act in favour of its interests in case of a conflict between its own and the -interests of another State. See Heffter, § 26.</p></div> +interests of another State. See Heffter, § 26.</p></div> <div class="sidenote"><p>What acts of self-preservation are excused.</p></div> -<p>§ 130. <a name="It130" id="It130"></a>It is frequently maintained that every violation +<p>§ 130. <a name="It130" id="It130"></a>It is frequently maintained that every violation is excused so long as it was caused by the motive of self-preservation, but it becomes more and more recognised that violations of other States in the interest @@ -11241,7 +11200,7 @@ historical examples.</p> <div class="sidenote"><p>Case of the Danish Fleet (1807).</p></div> -<p>§ 131. After the Peace of Tilsit of 1807 the British +<p>§ 131. After the Peace of Tilsit of 1807 the British Government<a name="FNanchor_208_208" id="FNanchor_208_208"></a><a href="#Footnote_208_208" class="fnanchor">[208]</a> was cognisant of the provision of some secret articles of this treaty that France should be at liberty to seize the Danish fleet and to make use of @@ -11262,11 +11221,11 @@ British considered a case of necessity in self-preservation had arisen, shelled Copenhagen, and seized the Danish fleet.</p> -<div class="footnote"><p><a name="Footnote_208_208" id="Footnote_208_208"></a><a href="#FNanchor_208_208"><span class="label">[208]</span></a> I follow Hall's (§ 86) summary of the facts.</p></div> +<div class="footnote"><p><a name="Footnote_208_208" id="Footnote_208_208"></a><a href="#FNanchor_208_208"><span class="label">[208]</span></a> I follow Hall's (§ 86) summary of the facts.</p></div> <div class="sidenote"><p>Case of Amelia Island.</p></div> -<p>§ 132. "Amelia Island, at the mouth of St. Mary's +<p>§ 132. "Amelia Island, at the mouth of St. Mary's River, and at that time in Spanish territory, was seized in 1817 by a band of buccaneers, under the direction of an adventurer named McGregor, who in the name<span class="pagenum"><a name="Page_187" id="Page_187">[Pg 187]</a></span> @@ -11281,11 +11240,11 @@ island and expel the marauders, destroying their works and vessels."<a name="FNanchor_209_209" id="FNanchor_209_209"></a><a href="#Footnote_209_209" class="fnanchor">[209]</a></p> <div class="footnote"><p><a name="Footnote_209_209" id="Footnote_209_209"></a><a href="#FNanchor_209_209"><span class="label">[209]</span></a> See - Wharton, § 50 a, and Moore, II. § 216.</p></div> + Wharton, § 50 a, and Moore, II. § 216.</p></div> <div class="sidenote"><p>Case of the <i>Caroline</i>.</p></div> -<p>§ 133. <a name="In_1837_during_the_Canadian133" id="In_1837_during_the_Canadian133"></a>In 1837, during the Canadian rebellion, several +<p>§ 133. <a name="In_1837_during_the_Canadian133" id="In_1837_during_the_Canadian133"></a>In 1837, during the Canadian rebellion, several hundreds of insurgents got hold of an island in the river Niagara, on the territory of the United States, and with the help of American subjects equipped a boat called @@ -11304,14 +11263,14 @@ invasion of her territory through application to the United States Government.<a name="FNanchor_210_210" id="FNanchor_210_210"></a><a href="#Footnote_210_210" class="fnanchor">[210]</a></p> <div class="footnote"><p><a name="Footnote_210_210" id="Footnote_210_210"></a><a href="#FNanchor_210_210"><span class="label">[210]</span></a> See - Wharton, I. § 50 c, Moore, II. § 217, and Hall, § 84. + Wharton, I. § 50 c, Moore, II. § 217, and Hall, § 84. With the case of the <i>Caroline</i> is connected the case of Macleod, which will be discussed - below, § <a href="#An_excellent_example446">446</a>. Hall (§ 86), Martens (I. § 73), and + below, § <a href="#An_excellent_example446">446</a>. Hall (§ 86), Martens (I. § 73), and others quote also the case of the <i>Virginius</i> (1873) as an example of necessity of self-preservation, but it seems that the Spanish Government did not plead self-preservation but piracy as justification of the -capture of the vessel (see Moore, II. § 309, pp. 895-903). That a vessel +capture of the vessel (see Moore, II. § 309, pp. 895-903). That a vessel sailing under another State's flag can nevertheless be seized on the high seas in case she is sailing to a port of the capturing State for the purpose of an invasion or bringing material help to insurgents, @@ -11326,17 +11285,17 @@ by capture of the vessel.<span class="pagenum"><a name="Page_188" id="Page_188"> </h4> -<p class="indh1">Vattel, II. §§ 54-62—Hall, §§ 88-95—Westlake, I. pp. -304-308—Lawrence, §§ 62-70—Phillimore, I. §§ 390-415A—Halleck, -I. pp. 94-109—Taylor, §§ 410-430—Walker, § 7—Wharton, I. §§ -45-72—Moore, VI. §§ 897-926—Wheaton, §§ 63-71—Bluntschli, §§ -474-480—Hartmann, § 17—Heffter, §§ 44-46—Geffcken in -Holtzendorff, II. pp. 131-168—Gareis, § 26—Liszt, § 7—Ullmann, -§§ 163-164—Bonfils, Nos. 295-323—Despagnet, Nos. -193-216—Mérignhac, I. pp. 284-310—Pradier-Fodéré, I. Nos. -354-441—Rivier, I. § 31—Nys, II. pp. 185-193, 200-205—Calvo, I. -§§ 110-206—Fiore, I. Nos. 561-608, and Code, Nos. -543-557—Martens, I. § 76—Bernard, "On the Principle of +<p class="indh1">Vattel, II. §§ 54-62—Hall, §§ 88-95—Westlake, I. pp. +304-308—Lawrence, §§ 62-70—Phillimore, I. §§ 390-415A—Halleck, +I. pp. 94-109—Taylor, §§ 410-430—Walker, § 7—Wharton, I. §§ +45-72—Moore, VI. §§ 897-926—Wheaton, §§ 63-71—Bluntschli, §§ +474-480—Hartmann, § 17—Heffter, §§ 44-46—Geffcken in +Holtzendorff, II. pp. 131-168—Gareis, § 26—Liszt, § 7—Ullmann, +§§ 163-164—Bonfils, Nos. 295-323—Despagnet, Nos. +193-216—Mérignhac, I. pp. 284-310—Pradier-Fodéré, I. Nos. +354-441—Rivier, I. § 31—Nys, II. pp. 185-193, 200-205—Calvo, I. +§§ 110-206—Fiore, I. Nos. 561-608, and Code, Nos. +543-557—Martens, I. § 76—Bernard, "On the Principle of non-Intervention" (1860)—Hautefeuille, "Le principe de non-intervention" (1863)—Stapleton, "Intervention and Non-intervention, or the Foreign Policy of Great Britain from 1790 @@ -11348,7 +11307,7 @@ Drago" (1908).</p> <div class="sidenote"><p>Conception and character of Intervention.</p></div> -<p>§ 134. <a name="Intervention_is134" id="Intervention_is134"></a>Intervention is dictatorial interference by a +<p>§ 134. <a name="Intervention_is134" id="Intervention_is134"></a>Intervention is dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things. Such intervention can take place by right or without @@ -11401,11 +11360,11 @@ the Hungarian revolt.</p> <div class="footnote"><p><a name="Footnote_212_212" id="Footnote_212_212"></a><a href="#FNanchor_212_212"><span class="label">[212]</span></a> Many writers constantly commit this confusion.</p></div> <div class="footnote"><p><a name="Footnote_213_213" id="Footnote_213_213"></a><a href="#FNanchor_213_213"><span class="label">[213]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Di9">vol. II. § 9</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Di9">vol. II. § 9</a>.</p></div> <div class="sidenote"><p>Intervention by Right.</p></div> -<p>§ 135. <a name="It_is_apparent135" id="It_is_apparent135"></a>It is apparent that such interventions as take +<p>§ 135. <a name="It_is_apparent135" id="It_is_apparent135"></a>It is apparent that such interventions as take place by right must be distinguished from others. Wherever there is no right of intervention, although it may be admissible and excused, an intervention violates @@ -11468,7 +11427,7 @@ States, able to maintain such order."</p> Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79.—Even if no special right of intervention is stipulated, it nevertheless exists in such cases. Thus—see - below, § <a href="#Treaties_of_guarantee574">574</a>—those Powers which have + below, § <a href="#Treaties_of_guarantee574">574</a>—those Powers which have guaranteed the integrity of Norway under the condition that she does not cede any part of her territory to any foreign Power would have a right to intervene in case such a cession were contemplated, although the @@ -11502,12 +11461,12 @@ personally.</p> <div class="footnote"><p><a name="Footnote_217_217" id="Footnote_217_217"></a><a href="#FNanchor_217_217"><span class="label">[217]</span></a> But this is not generally recognised; see, for instance, -Hall, § 93, who denies the existence of such a right. I do not see the +Hall, § 93, who denies the existence of such a right. I do not see the reason why a State should not be able to undertake the obligation to retain a certain form of government or dynasty. That historical events can justify such State in considering itself no longer bound by such treaty according to the principle <i>rebus sic stantibus</i> (see - below, § <a href="#Although_as_just_stated539">539</a>) + below, § <a href="#Although_as_just_stated539">539</a>) is another matter.</p></div> <p>(6) <a name="The_right_of_pro6of135" id="The_right_of_pro6of135"></a>The right of protection<a name="FNanchor_218_218" id="FNanchor_218_218"></a><a href="#Footnote_218_218" class="fnanchor">[218]</a> over citizens abroad, @@ -11517,7 +11476,7 @@ And it matters not whether protection of the life, security, honour, or property of a citizen abroad is concerned.</p> <div class="footnote"><p><a name="Footnote_218_218" id="Footnote_218_218"></a><a href="#FNanchor_218_218"><span class="label">[218]</span></a> See - below, § <a href="#Although_aliens319">319</a>.</p></div> + below, § <a href="#Although_aliens319">319</a>.</p></div> <p>The so-called <i>Drago<a name="FNanchor_219_219" id="FNanchor_219_219"></a><a href="#Footnote_219_219" class="fnanchor">[219]</a> doctrine</i>, which asserts the rule that intervention is not allowed for the purpose of @@ -11559,7 +11518,7 @@ Hershey in A.J. I. (1907), pp. 26-45; Drago in A.J. I. (1907), pp. <div class="sidenote"><p>Admissibility of Intervention in default of Right.</p></div> -<p>§ 136. <a name="In_contradistinction136" id="In_contradistinction136"></a>In contradistinction to intervention by right, +<p>§ 136. <a name="In_contradistinction136" id="In_contradistinction136"></a>In contradistinction to intervention by right, there are other interventions which must be considered admissible, although they violate the independence or the territorial or personal supremacy of the State concerned, @@ -11573,7 +11532,7 @@ are necessary in the interest of the balance of power.</p> <p>(1) As regards interventions for the purpose of self-preservation, it is obvious that, if any necessary violation committed in self-preservation of the International -Personality of other States is, as shown above (§ 130), +Personality of other States is, as shown above (§ 130), excused, such violation must also be excused as is contained in an intervention. And it matters not whether such an intervention exercised in self-preservation is @@ -11610,10 +11569,10 @@ Greece and Turkey with regard to the island of Crete.</p> <div class="footnote"><p><a name="Footnote_221_221" id="Footnote_221_221"></a><a href="#FNanchor_221_221"><span class="label">[221]</span></a> A survey of the opinions concerning the value of the principle of balance of power is given by Bulmerincq, "Praxis, Theorie -und Codification des Völkerrechts" (1874), pp. 40-50, but Bulmerincq -himself rejects the principle. See also Donnadieu, "Essai sur la théorie -de l'équilibre" (1900) where the matter is exhaustively treated, and -Dupuis, "Le principe d'équilibre et le concert européen" (1909), pp. +und Codification des Völkerrechts" (1874), pp. 40-50, but Bulmerincq +himself rejects the principle. See also Donnadieu, "Essai sur la théorie +de l'équilibre" (1900) where the matter is exhaustively treated, and +Dupuis, "Le principe d'équilibre et le concert européen" (1909), pp. 90-108, and 494-513. It is necessary to emphasise that the principle of the balance of power is not a legal principle and therefore not one of International Law, but one of International policy; it is a political @@ -11622,7 +11581,7 @@ present condition.</p></div> <div class="sidenote"><p>Intervention in the interest of Humanity.</p></div> -<p>§ 137. <a name="Ma137" id="Ma137"></a>Many jurists maintain that intervention is +<p>§ 137. <a name="Ma137" id="Ma137"></a>Many jurists maintain that intervention is likewise admissible, or even has a basis of right, when exercised in the interest of humanity for the purpose of stopping religious persecution and endless cruelties in @@ -11645,14 +11604,14 @@ provided they are exercised in the form of a collective intervention of the Powers.<a name="FNanchor_222_222" id="FNanchor_222_222"></a><a href="#Footnote_222_222" class="fnanchor">[222]</a></p> <div class="footnote"><p><a name="Footnote_222_222" id="Footnote_222_222"></a><a href="#FNanchor_222_222"><span class="label">[222]</span></a> See - Hall, §§ 91 and 95, where the merits of the problem are + Hall, §§ 91 and 95, where the merits of the problem are discussed from all sides. See also -below, § <a href="#Several_writ292">292</a>, and Rougier in R.G. +below, § <a href="#Several_writ292">292</a>, and Rougier in R.G. XVII. (1910), pp. 468-526.</p></div> <div class="sidenote"><p>Intervention <i>de facto</i> a Matter of Policy.</p></div> -<p>§ 138. Careful analysis of the rules of the Law of +<p>§ 138. Careful analysis of the rules of the Law of Nations regarding intervention and the hitherto exercised practice of intervention make it apparent that intervention is <i>de facto</i> a matter of policy just like war. @@ -11689,7 +11648,7 @@ between the Great Powers, for an abuse of intervention on the part of one powerful State without calling other States into the field. Since unjustified intervention violates the very principles of the Law of Nations, and -since, as I have stated above <a href="#It_is_apparent135">(§ 135)</a>, in case of a violation +since, as I have stated above <a href="#It_is_apparent135">(§ 135)</a>, in case of a violation of these principles on the part of a State every other State has a right to intervene, any unjustifiable intervention by one State in the affairs of another gives @@ -11704,7 +11663,7 @@ Great Powers, but it seems unalterable.</p> <div class="sidenote"><p>The Monroe Doctrine.</p></div> -<p>§ 139. <a name="The139" id="The139"></a>The <i>de facto</i> political character of the whole +<p>§ 139. <a name="The139" id="The139"></a>The <i>de facto</i> political character of the whole matter of intervention becomes clearly apparent through the so-called Monroe doctrine<a name="FNanchor_223_223" id="FNanchor_223_223"></a><a href="#Footnote_223_223" class="fnanchor">[223]</a> of the United States of America. This doctrine, at its first appearance, was indirectly @@ -11723,12 +11682,12 @@ celebrated Message to Congress on December 2, 1823. This Message contains two quite different, but nevertheless equally important, declarations.</p> -<div class="footnote"><p><a name="Footnote_223_223" id="Footnote_223_223"></a><a href="#FNanchor_223_223"><span class="label">[223]</span></a> Wharton, § 57; Dana's Note No. 36 to Wharton, p. 36; +<div class="footnote"><p><a name="Footnote_223_223" id="Footnote_223_223"></a><a href="#FNanchor_223_223"><span class="label">[223]</span></a> Wharton, § 57; Dana's Note No. 36 to Wharton, p. 36; Tucker, "The Monroe Doctrine" (1885); Moore, "The Monroe Doctrine" -(1895), and Digest, VI. §§ 927-968; Cespedès, "La doctrine de Monroe" -(1893); Mérignhac, "La doctrine de Monroe à la fin du XIX^e siècle" +(1895), and Digest, VI. §§ 927-968; Cespedès, "La doctrine de Monroe" +(1893); Mérignhac, "La doctrine de Monroe à la fin du XIX^e siècle" (1896); Beaumarchais, "La doctrine de Monroe" (1898); Redaway, "The -Monroe Doctrine" (1898); Pékin, "Les États-Unis et la doctrine de +Monroe Doctrine" (1898); Pékin, "Les États-Unis et la doctrine de Monroe" (1900).</p></div> <p>(1) In connection with the unsettled boundary lines @@ -11774,11 +11733,11 @@ sent an <i>ultimatum</i> to Venezuela, and she retains the Monroe doctrine as a matter of principle.</p> <div class="footnote"><p><a name="Footnote_224_224" id="Footnote_224_224"></a><a href="#FNanchor_224_224"><span class="label">[224]</span></a> See - Moore, VI. § 957.</p></div> + Moore, VI. § 957.</p></div> <div class="sidenote"><p>Merits of the Monroe Doctrine.</p></div> -<p>§ 140. The importance of the Monroe doctrine is of +<p>§ 140. The importance of the Monroe doctrine is of a political, not of a legal character. Since the Law of Nations is a law between all the civilised States as equal members of the Family of Nations, the States of the @@ -11806,7 +11765,7 @@ between these very States, and eventually to intervene in conflicts. Since every State must decide for itself whether and where vital interests of its own are at stake and whether the balance of power is endangered to its<span class="pagenum"><a name="Page_199" id="Page_199">[Pg 199]</a></span> -disadvantage, and since, as explained above (§ 138), +disadvantage, and since, as explained above (§ 138), intervention is therefore <i>de facto</i> a matter of policy, there is no legal impediment to the United States carrying out a policy in conformity with the Monroe doctrine. @@ -11825,18 +11784,18 @@ Monroe doctrine will have played its part.</p> <span class="smaller">INTERCOURSE</span> </h4> -<p class="indh1">Grotius, II. c. 2, § 13—Vattel, II. §§ 21-26—Hall, § 13—Taylor, -§ 160—Bluntschli, § 381 and p. 26—Hartmann, § 15—Heffter, §§ 26 -and 33—Holtzendorff in Holtzendorff, II. pp. 60-64—Gareis, § -27—Liszt, § 7—Ullmann, § 38—Bonfils, Nos. 285-289—Despagnet, -No. 183—Mérignhac, I. pp. 256-257—Pradier-Fodéré, I. No. -184—Rivier, I. pp. 262-264—Nys, II. pp. 221-228—Calvo, III. §§ -1303-1305—Fiore, I. No. 370—Martens, I. § 79. +<p class="indh1">Grotius, II. c. 2, § 13—Vattel, II. §§ 21-26—Hall, § 13—Taylor, +§ 160—Bluntschli, § 381 and p. 26—Hartmann, § 15—Heffter, §§ 26 +and 33—Holtzendorff in Holtzendorff, II. pp. 60-64—Gareis, § +27—Liszt, § 7—Ullmann, § 38—Bonfils, Nos. 285-289—Despagnet, +No. 183—Mérignhac, I. pp. 256-257—Pradier-Fodéré, I. No. +184—Rivier, I. pp. 262-264—Nys, II. pp. 221-228—Calvo, III. §§ +1303-1305—Fiore, I. No. 370—Martens, I. § 79. </p> <div class="sidenote"><p>Intercourse a presupposition of International Personality.</p></div> -<p>§ 141. <a name="Many_adherents_of_the141" id="Many_adherents_of_the141"></a>Many adherents of the doctrine of fundamental +<p>§ 141. <a name="Many_adherents_of_the141" id="Many_adherents_of_the141"></a>Many adherents of the doctrine of fundamental rights include therein also a right of intercourse of every State with all others. This right of intercourse is said to contain a right of diplomatic, commercial, @@ -11892,7 +11851,7 @@ Musgrove <i>v.</i> Chun Teeong Toy, L.R. <div class="sidenote"><p>Consequences of Intercourse as a Presupposition of International Personality.</p></div> -<p>§ 142. <a name="Intercourse_being_a_presupposition142" id="Intercourse_being_a_presupposition142"></a>Intercourse being a presupposition of International +<p>§ 142. <a name="Intercourse_being_a_presupposition142" id="Intercourse_being_a_presupposition142"></a>Intercourse being a presupposition of International Personality, the Law of Nations favours intercourse in every way. The whole institution of legation serves the interest of intercourse between the States,<span class="pagenum"><a name="Page_201" id="Page_201">[Pg 201]</a></span> @@ -11911,21 +11870,21 @@ of provisions of the Law of Nations in the interest of international intercourse.</p> <div class="footnote"><p><a name="Footnote_226_226" id="Footnote_226_226"></a><a href="#FNanchor_226_226"><span class="label">[226]</span></a> See - below, § <a href="#Right_of_legation360">360</a>.</p></div> + below, § <a href="#Right_of_legation360">360</a>.</p></div> <div class="footnote"><p><a name="Footnote_227_227" id="Footnote_227_227"></a><a href="#FNanchor_227_227"><span class="label">[227]</span></a> See - below, § <a href="#Although_aliens319">319</a>. The right of protection over citizens + below, § <a href="#Although_aliens319">319</a>. The right of protection over citizens abroad is frequently said to be a special right of self-preservation, but it is really a right in the interest of intercourse.</p></div> <div class="footnote"><p><a name="Footnote_228_228" id="Footnote_228_228"></a><a href="#FNanchor_228_228"><span class="label">[228]</span></a> See - below, § <a href="#Grotius_and_many_writers259">259</a>.</p></div> + below, § <a href="#Grotius_and_many_writers259">259</a>.</p></div> <div class="footnote"><p><a name="Footnote_229_229" id="Footnote_229_229"></a><a href="#FNanchor_229_229"><span class="label">[229]</span></a> See - below, § <a href="#Although_the_maritime188">188</a>.</p></div> + below, § <a href="#Although_the_maritime188">188</a>.</p></div> <div class="footnote"><p><a name="Footnote_230_230" id="Footnote_230_230"></a><a href="#FNanchor_230_230"><span class="label">[230]</span></a> See - below, § <a href="#Whereas_there_is_certainly178">178</a>.</p></div> + below, § <a href="#Whereas_there_is_certainly178">178</a>.</p></div> <p>The question is frequently discussed and answered in the affirmative whether a State has the right to @@ -11945,16 +11904,16 @@ morality.</p> </h4> -<p class="indh1">Hall, §§ 62, 75-80—Westlake, I. pp. 236-271—Lawrence, §§ 93-109—Phillimore, -I. §§ 317-356—Twiss, I. §§ 157-171—Halleck, I. pp. 186-245—Taylor, -§§ 169-171—Wheaton, §§ 77-151—Moore, II. §§ 175-249—Bluntschli, -§§ 388-393—Heffter, §§ 34-39—Bonfils, Nos. 263-266—Rivier, -I. § 28—Nys, II. pp. 257-263—Fiore, I. Nos. 475-588.</p> +<p class="indh1">Hall, §§ 62, 75-80—Westlake, I. pp. 236-271—Lawrence, §§ 93-109—Phillimore, +I. §§ 317-356—Twiss, I. §§ 157-171—Halleck, I. pp. 186-245—Taylor, +§§ 169-171—Wheaton, §§ 77-151—Moore, II. §§ 175-249—Bluntschli, +§§ 388-393—Heffter, §§ 34-39—Bonfils, Nos. 263-266—Rivier, +I. § 28—Nys, II. pp. 257-263—Fiore, I. Nos. 475-588.</p> <div class="sidenote"><p>Jurisdiction important for the position of the States within the Family of Nations.</p></div> -<p>§ 143. Jurisdiction is for several reasons a matter +<p>§ 143. Jurisdiction is for several reasons a matter of importance as regards the position of the States within the Family of Nations. States possessing independence<span class="pagenum"><a name="Page_202" id="Page_202">[Pg 202]</a></span> and territorial as well as personal supremacy @@ -11977,7 +11936,7 @@ to do so, leaving them to each other's jurisdiction.</p> <div class="sidenote"><p>Restrictions upon Territorial Jurisdiction.</p></div> -<p>§ 144. As all persons and things within the territory +<p>§ 144. As all persons and things within the territory of a State fall under its territorial supremacy, every State has jurisdiction over them. The Law of Nations, however, gives a right to every State to claim so-called @@ -11990,27 +11949,27 @@ restricted<a name="FNanchor_235_235" id="FNanchor_235_235"></a><a href="#Footnot to foreign resident subjects of Christian Powers.</p> <div class="footnote"><p><a name="Footnote_231_231" id="Footnote_231_231"></a><a href="#FNanchor_231_231"><span class="label">[231]</span></a> Details - below, §§ <a href="#As_regards_however348">348</a>-353, and <a href="#As_to_the_position_of356">356</a>.—The exemption of a + below, §§ <a href="#As_regards_however348">348</a>-353, and <a href="#As_to_the_position_of356">356</a>.—The exemption of a State itself from the jurisdiction of another is not based upon a claim to exterritoriality, but upon the claim to equality; see - above, § <a href="#The_equality_before115">115</a>.</p></div> + above, § <a href="#The_equality_before115">115</a>.</p></div> <div class="footnote"><p><a name="Footnote_232_232" id="Footnote_232_232"></a><a href="#FNanchor_232_232"><span class="label">[232]</span></a> Details - below, §§ <a href="#Privileges_due_to_diplomatic385">385</a>-405.</p></div> + below, §§ <a href="#Privileges_due_to_diplomatic385">385</a>-405.</p></div> <div class="footnote"><p><a name="Footnote_233_233" id="Footnote_233_233"></a><a href="#FNanchor_233_233"><span class="label">[233]</span></a> Details - below, §§ <a href="#Th450">450</a>-451.</p></div> + below, §§ <a href="#Th450">450</a>-451.</p></div> <div class="footnote"><p><a name="Footnote_234_234" id="Footnote_234_234"></a><a href="#FNanchor_234_234"><span class="label">[234]</span></a> Details - below, § <a href="#Wh445">445</a>.</p></div> + below, § <a href="#Wh445">445</a>.</p></div> <div class="footnote"><p><a name="Footnote_235_235" id="Footnote_235_235"></a><a href="#FNanchor_235_235"><span class="label">[235]</span></a> Details - below, §§ <a href="#The_rule_that_aliens318">318</a> + below, §§ <a href="#The_rule_that_aliens318">318</a> and <a href="#International_custom_and440">440</a>.</p></div> <div class="sidenote"><p>Jurisdiction over Citizens abroad.</p></div> -<p>§ 145. The Law of Nations does not prevent a State +<p>§ 145. The Law of Nations does not prevent a State from exercising jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy. As every State can also exercise<span class="pagenum"><a name="Page_203" id="Page_203">[Pg 203]</a></span> @@ -12024,11 +11983,11 @@ aliens are actually for some matters under no State's jurisdiction.</p> <div class="footnote"><p><a name="Footnote_236_236" id="Footnote_236_236"></a><a href="#FNanchor_236_236"><span class="label">[236]</span></a> See - below, § <a href="#Wi317">317</a>.</p></div> + below, § <a href="#Wi317">317</a>.</p></div> <div class="sidenote"><p>Jurisdiction on the Open Sea.</p></div> -<p>§ 146. <a name="As146" id="As146"></a>As the Open Sea is not under the sway of +<p>§ 146. <a name="As146" id="As146"></a>As the Open Sea is not under the sway of any State, no State can exercise its jurisdiction there. But it is a rule of the Law of Nations that the vessels and the things and persons thereon remain during the @@ -12055,20 +12014,20 @@ Open Sea all neutral vessels for carrying contraband, breach of blockade, or unneutral services to the enemy.</p> <div class="footnote"><p><a name="Footnote_237_237" id="Footnote_237_237"></a><a href="#FNanchor_237_237"><span class="label">[237]</span></a> See - below, § <a href="#Jurisdiction_on_the_Open_Sea260">260</a>.</p></div> + below, § <a href="#Jurisdiction_on_the_Open_Sea260">260</a>.</p></div> <div class="footnote"><p><a name="Footnote_238_238" id="Footnote_238_238"></a><a href="#FNanchor_238_238"><span class="label">[238]</span></a> See - below, § <a href="#A_pirate_and278">278</a>.</p></div> + below, § <a href="#A_pirate_and278">278</a>.</p></div> <div class="footnote"><p><a name="Footnote_239_239" id="Footnote_239_239"></a><a href="#FNanchor_239_239"><span class="label">[239]</span></a> See - below, § <a href="#No_rules_of_the_Law265">265</a>.</p></div> + below, § <a href="#No_rules_of_the_Law265">265</a>.</p></div> <div class="footnote"><p><a name="Footnote_240_240" id="Footnote_240_240"></a><a href="#FNanchor_240_240"><span class="label">[240]</span></a> See - below, §§ <a href="#No_rules_of_the_Law265">265</a>-266.</p></div> + below, §§ <a href="#No_rules_of_the_Law265">265</a>-266.</p></div> <div class="sidenote"><p>Criminal Jurisdiction over Foreigners in Foreign States.</p></div> -<p>§ 147. Many States claim jurisdiction and threaten<span class="pagenum"><a name="Page_204" id="Page_204">[Pg 204]</a></span> +<p>§ 147. Many States claim jurisdiction and threaten<span class="pagenum"><a name="Page_204" id="Page_204">[Pg 204]</a></span> punishment for certain acts committed by a foreigner in foreign countries.<a name="FNanchor_241_241" id="FNanchor_241_241"></a><a href="#Footnote_241_241" class="fnanchor">[241]</a> States which claim jurisdiction of this kind threaten punishment for certain acts either @@ -12121,8 +12080,8 @@ a similar incident, diplomatic practice has not at all settled the subject.</p> <div class="footnote"><p><a name="Footnote_241_241" id="Footnote_241_241"></a><a href="#FNanchor_241_241"><span class="label">[241]</span></a> See - Hall, § 62; Westlake, I. pp. 251-253; Lawrence, § 104; -Taylor, § 191; Moore, II. §§ 200 and 201; Phillimore, I. § 334.</p></div> + Hall, § 62; Westlake, I. pp. 251-253; Lawrence, § 104; +Taylor, § 191; Moore, II. §§ 200 and 201; Phillimore, I. § 334.</p></div> <div class="footnote"><p><a name="Footnote_242_242" id="Footnote_242_242"></a><a href="#FNanchor_242_242"><span class="label">[242]</span></a> The Institute of International Law has studied the question at several meetings and in 1883, at its meeting at Munich (see Annuaire, @@ -12136,18 +12095,18 @@ where they take place." But it must be emphasised that this resolution has value <i>de lege ferenda</i> only.</p></div> <div class="footnote"><p><a name="Footnote_243_243" id="Footnote_243_243"></a><a href="#FNanchor_243_243"><span class="label">[243]</span></a> The case of Cirilo Pouble—see - Moore, II. § 200, pp. + Moore, II. § 200, pp. 227-228—concerning which the United States at first were inclined to intervene, proved to be a case of a crime committed within Spanish -jurisdiction. The case of John Anderson—see Moore, I. § 174, p. 933—is +jurisdiction. The case of John Anderson—see Moore, I. § 174, p. 933—is likewise not relevant, as he claimed to be a British subject.</p></div> <div class="footnote"><p><a name="Footnote_244_244" id="Footnote_244_244"></a><a href="#FNanchor_244_244"><span class="label">[244]</span></a> See - Westlake, I. p. 252; Taylor, § 192; Calvo, VI. §§ -171-173; Moore, II. § 201, and "Report on Extraterritorial Crime and the + Westlake, I. p. 252; Taylor, § 192; Calvo, VI. §§ +171-173; Moore, II. § 201, and "Report on Extraterritorial Crime and the Cutting Case" (1887); Rolin in R.I. XX. (1888), pp. 559-577. The case is fully discussed and the American claim is disputed by Mendelssohn -Bartholdy, "Das räumliche Herrschaftsgebiet des Strafgesetzes" (1908), +Bartholdy, "Das räumliche Herrschaftsgebiet des Strafgesetzes" (1908), pp. 135-143.<span class="pagenum"><a name="Page_206" id="Page_206">[Pg 206]</a></span></p></div> @@ -12162,18 +12121,18 @@ pp. 135-143.<span class="pagenum"><a name="Page_206" id="Page_206">[Pg 206]</a>< <span class="smaller">ON STATE RESPONSIBILITY IN GENERAL</span> </h4> -<p class="indh1">Grotius, II. c. 21, § 2—Pufendorf, VIII. c. 6, § 12—Vattel, II. §§ 63-78—Hall, -§ 65—Halleck, I. pp. 440-444—Wharton, I. § 21—Moore, VI. §§ -979-1039—Wheaton, § 32—Bluntschli, § 74—Heffter, §§ 101-104—Holtzendorff -in Holtzendorff, II. pp. 70-74—Liszt, § 24—Ullmann, § 39—Bonfils, -Nos. 324-332—Despagnet, No. 466—Piedelièvre, I. pp. 317-322—Pradier-Fodéré, +<p class="indh1">Grotius, II. c. 21, § 2—Pufendorf, VIII. c. 6, § 12—Vattel, II. §§ 63-78—Hall, +§ 65—Halleck, I. pp. 440-444—Wharton, I. § 21—Moore, VI. §§ +979-1039—Wheaton, § 32—Bluntschli, § 74—Heffter, §§ 101-104—Holtzendorff +in Holtzendorff, II. pp. 70-74—Liszt, § 24—Ullmann, § 39—Bonfils, +Nos. 324-332—Despagnet, No. 466—Piedelièvre, I. pp. 317-322—Pradier-Fodéré, I. Nos. 196-210—Rivier, I. pp. 40-44—Calvo, III. -§§ 1261-1298—Fiore, I. Nos. 659-679, and Code, Nos. 591-610—Martens, -I. § 118—Clunet, "Offenses et actes hostiles commis par -particuliers contre un état étranger" (1887)—Triepel, "Völkerrecht +§§ 1261-1298—Fiore, I. Nos. 659-679, and Code, Nos. 591-610—Martens, +I. § 118—Clunet, "Offenses et actes hostiles commis par +particuliers contre un état étranger" (1887)—Triepel, "Völkerrecht und Landesrecht" (1899), pp. 324-381—Anzillotti, "Teoria generale -della responsabilità dello stato nel diritto internazionale" (1902)—Wiese, -"Le droit international appliqué aux guerres civiles" (1898), pp. 43-65—Rougier, +della responsabilità dello stato nel diritto internazionale" (1902)—Wiese, +"Le droit international appliqué aux guerres civiles" (1898), pp. 43-65—Rougier, "Les guerres civiles et le droit des gens" (1903), pp. 448-474—Baty, "International Law" (1908), pp. 91-242—Anzillotti in R.G. XIII. (1906), pp. 5-29 and 285-309—Foster in A.J. I. (1907), pp. 5-10—Bar in @@ -12183,7 +12142,7 @@ R.I. 2nd Ser. I. (1899), pp. 464-481.</p> State Responsibility.</p></div> -<p>§ 148. <a name="It_is_often_maintained148" id="It_is_often_maintained148"></a>It is often maintained that a State, as a +<p>§ 148. <a name="It_is_often_maintained148" id="It_is_often_maintained148"></a>It is often maintained that a State, as a sovereign person, can have no legal responsibility whatever. This is only correct with reference to certain acts of a State towards its subjects. Since a State @@ -12228,7 +12187,7 @@ responsible for all acts committed by persons forming part of its armed forces."</p> <div class="footnote"><p><a name="Footnote_245_245" id="Footnote_245_245"></a><a href="#FNanchor_245_245"><span class="label">[245]</span></a> See - above, § <a href="#International_Personality113">113</a>.</p></div> + above, § <a href="#International_Personality113">113</a>.</p></div> <div class="footnote"><p><a name="Footnote_246_246" id="Footnote_246_246"></a><a href="#FNanchor_246_246"><span class="label">[246]</span></a> See Annex to Protocol I. of Conference of London, 1871, @@ -12239,11 +12198,11 @@ the consent of the contracting Powers by means of an amicable arrangement."</p></div> <div class="footnote"><p><a name="Footnote_247_247" id="Footnote_247_247"></a><a href="#FNanchor_247_247"><span class="label">[247]</span></a> See - below, § <a href="#International_delinquency151">151</a>.</p></div> + below, § <a href="#International_delinquency151">151</a>.</p></div> <div class="sidenote"><p>Original and Vicarious State Responsibility.</p></div> -<p>§ 149. <a name="No149" id="No149"></a>Now if we examine the various international +<p>§ 149. <a name="No149" id="No149"></a>Now if we examine the various international duties out of which responsibility of a State may rise,<span class="pagenum"><a name="Page_208" id="Page_208">[Pg 208]</a></span> we find that there is a necessity for two different kinds of State responsibility to be distinguished. They may @@ -12272,7 +12231,7 @@ its officials, subjects, and such aliens as are temporarily resident on its territory.<a name="FNanchor_249_249" id="FNanchor_249_249"></a><a href="#Footnote_249_249" class="fnanchor">[249]</a></p> <div class="footnote"><p><a name="Footnote_248_248" id="Footnote_248_248"></a><a href="#FNanchor_248_248"><span class="label">[248]</span></a> See - below, § <a href="#But_what_is_the_real290">290</a>.</p></div> + below, § <a href="#But_what_is_the_real290">290</a>.</p></div> <div class="footnote"><p><a name="Footnote_249_249" id="Footnote_249_249"></a><a href="#FNanchor_249_249"><span class="label">[249]</span></a> The distinction between original and vicarious responsibility was first made, in 1905, in the first edition of this @@ -12284,7 +12243,7 @@ researches concerning the responsibility of States.</p></div> <div class="sidenote"><p>Essential Difference between Original and Vicarious Responsibility.</p></div> -<p>§ 150. <a name="It150" id="It150"></a>It is, however, obvious that original and +<p>§ 150. <a name="It150" id="It150"></a>It is, however, obvious that original and vicarious State responsibility are essentially different. Whereas the one is responsibility of a State for a neglect of its own duty, the other is not. A neglect of international @@ -12315,14 +12274,14 @@ turns <i>ipso facto</i> into original responsibility.</p> <span class="smaller">STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES</span> </h4> -<p class="indh1">See the literature quoted above at the commencement of § <a href="#It_is_often_maintained148">148</a>.</p> +<p class="indh1">See the literature quoted above at the commencement of § <a href="#It_is_often_maintained148">148</a>.</p> <div class="sidenote"><p>Conception of International Delinquencies.</p></div> -<p>§ 151. <a name="International_delinquency151" id="International_delinquency151"></a>International delinquency is every injury to +<p>§ 151. <a name="International_delinquency151" id="International_delinquency151"></a>International delinquency is every injury to another State committed by the head and the Government of a State through violation of an international legal duty. Equivalent to acts of the head and Government @@ -12357,7 +12316,7 @@ not illegal and therefore not delinquent acts.</p> <div class="sidenote"><p>Subjects of International Delinquencies.</p></div> -<p>§ 152. An international delinquency may be committed +<p>§ 152. An international delinquency may be committed by every member of the Family of Nations, be such member a full-Sovereign, half-Sovereign, or part-Sovereign State. Yet, half- and part-Sovereign States @@ -12396,12 +12355,12 @@ with the Japanese demands.</p> <div class="footnote"><p><a name="Footnote_250_250" id="Footnote_250_250"></a><a href="#FNanchor_250_250"><span class="label">[250]</span></a> See Hyde in "The Green Bag," XIX. (1907), pp. 38-49; Root -in A.J. I. (1907), pp. 273-286; Barthélemy in R.G. XIV. (1907), pp. +in A.J. I. (1907), pp. 273-286; Barthélemy in R.G. XIV. (1907), pp. 636-685.</p></div> <div class="sidenote"><p>State Organs able to commit International Delinquencies.</p></div> -<p>§ 153. Since States are juristic persons, the question +<p>§ 153. Since States are juristic persons, the question arises, Whose internationally injurious acts are to be considered State acts and therefore international delinquencies? It is obvious that acts of this kind are, @@ -12424,12 +12383,12 @@ but for that very reason these acts do not comprise international delinquencies.</p> <div class="footnote"><p><a name="Footnote_251_251" id="Footnote_251_251"></a><a href="#FNanchor_251_251"><span class="label">[251]</span></a> See - below, §§ <a href="#Page_157">157</a>-158.</p></div> + below, §§ <a href="#Page_157">157</a>-158.</p></div> <div class="sidenote"><p>No International Delinquency without Malice or culpable Negligence.</p></div> -<p>§ 154. <a name="An154" id="An154"></a>An act of a State injurious to another State +<p>§ 154. <a name="An154" id="An154"></a>An act of a State injurious to another State is nevertheless not an international delinquency if committed neither wilfully and maliciously nor with culpable negligence. Therefore, an act of a State committed @@ -12442,7 +12401,7 @@ with the authorisation of a Government.</p> <div class="sidenote"><p>Objects of International Delinquencies.</p></div> -<p>§ 155. <a name="International_delinquencies155" id="International_delinquencies155"></a>International delinquencies may be committed +<p>§ 155. <a name="International_delinquencies155" id="International_delinquencies155"></a>International delinquencies may be committed against so many different objects that it is impossible to enumerate them. It suffices to give some striking examples. Thus a State may be injured—in @@ -12474,11 +12433,11 @@ foreigners concerned, to make satisfactory arrangements commits international delinquency there is no doubt. On the so-called Drago doctrine and the Hague Convention concerning the Employment of Force for the Recovery of Contract Debts, see - above, § <a href="#The_right_of_pro6of135">135, No. 6</a>.</p></div> + above, § <a href="#The_right_of_pro6of135">135, No. 6</a>.</p></div> <div class="sidenote"><p>Legal consequences of International Delinquencies.</p></div> -<p>§ 156. <a name="Th156" id="Th156"></a>The nature of the Law of Nations as a law +<p>§ 156. <a name="Th156" id="Th156"></a>The nature of the Law of Nations as a law between, not above, Sovereign States excludes the possibility of punishing a State for an international delinquency and of considering the latter in the light @@ -12525,10 +12484,10 @@ acts of warfare on the part of a belligerent, such means are reprisals and the taking of hostages.<a name="FNanchor_254_254" id="FNanchor_254_254"></a><a href="#Footnote_254_254" class="fnanchor">[254]</a></p> <div class="footnote"><p><a name="Footnote_253_253" id="Footnote_253_253"></a><a href="#FNanchor_253_253"><span class="label">[253]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Reprisals_are_admissible34">vol. II. § 34</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Reprisals_are_admissible34">vol. II. § 34</a>.</p></div> <div class="footnote"><p><a name="Footnote_254_254" id="Footnote_254_254"></a><a href="#FNanchor_254_254"><span class="label">[254]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Whereas_reprisals248">vol. II. §§ 248</a> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Whereas_reprisals248">vol. II. §§ 248</a> and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#A_new_practice259">259</a>.</p></div> @@ -12540,15 +12499,15 @@ and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#A_new_prac </h4> -<p class="indh1">See the literature quoted above at the commencement of § <a href="#It_is_often_maintained148">148</a>, +<p class="indh1">See the literature quoted above at the commencement of § <a href="#It_is_often_maintained148">148</a>, and -especially Moore, VI. §§ 998-1018. +especially Moore, VI. §§ 998-1018. </p> <div class="sidenote"><p>Responsibility varies with Organs concerned.</p></div> -<p>§ 157. States must bear vicarious responsibility for +<p>§ 157. States must bear vicarious responsibility for all internationally injurious acts of their organs. As, however, these organs are of different kinds and of different position, the actual responsibility of a State @@ -12561,11 +12520,11 @@ and naval forces.</p> <div class="sidenote"><p>Internationally injurious Acts of Heads of States.</p></div> -<p>§ 158. Such international injurious acts as are committed +<p>§ 158. Such international injurious acts as are committed by heads of States in the exercise of their official functions are not our concern here, because they constitute international delinquencies which have been -discussed above (§§ <a href="#International_delinquency151">151</a>-156). But a monarch can, just<span class="pagenum"><a name="Page_215" id="Page_215">[Pg 215]</a></span> +discussed above (§§ <a href="#International_delinquency151">151</a>-156). But a monarch can, just<span class="pagenum"><a name="Page_215" id="Page_215">[Pg 215]</a></span> as any other individual, in his private life commit many internationally injurious acts, and the question is, whether and in what degree a State must bear responsibility @@ -12583,12 +12542,12 @@ be requested to pay damages on his behalf.</p> <div class="sidenote"><p>Internationally injurious Acts of Members of Government.</p></div> -<p>§ 159. As regards internationally injurious acts of +<p>§ 159. As regards internationally injurious acts of members of a Government, a distinction must be made between such acts as are committed by the offenders in their official capacity, and other acts. Acts of the first kind constitute international delinquencies, as stated -above (§ 153). But members of a Government can in +above (§ 153). But members of a Government can in their private life perform as many internationally injurious acts as private individuals, and we must ascertain therefore what kind of responsibility their State @@ -12603,7 +12562,7 @@ for acts of private persons.</p> <div class="sidenote"><p>Internationally injurious Acts of Diplomatic Envoys.</p></div> -<p>§ 160. The position of diplomatic envoys who, as +<p>§ 160. The position of diplomatic envoys who, as representatives of their home State, enjoy the privileges of exterritoriality, gives, on the one hand, a very great importance to internationally injurious acts committed @@ -12630,7 +12589,7 @@ cannot personally be blamed.</p> <div class="sidenote"><p>Internationally injurious Attitudes of Parliaments.</p></div> -<p>§ 161. As regards internationally injurious attitudes +<p>§ 161. As regards internationally injurious attitudes of parliaments, it must be kept in mind that, most important as may be the part parliaments play in the political life of a nation, they do not belong to the @@ -12649,7 +12608,7 @@ the wrong done.</p> <div class="sidenote"><p>Internationally injurious Acts of Judicial Functionaries.</p></div> -<p>§ 162. Internationally injurious acts committed by<span class="pagenum"><a name="Page_217" id="Page_217">[Pg 217]</a></span> +<p>§ 162. Internationally injurious acts committed by<span class="pagenum"><a name="Page_217" id="Page_217">[Pg 217]</a></span> judicial functionaries in their private life are in no way different from such acts committed by other individuals. But these functionaries may in their official capacity @@ -12672,7 +12631,7 @@ which the injured State can successfully obtain reparation for the wrong done, unless the other party consents to bring the case before a Court of Arbitration.</p> -<div class="footnote"><p><a name="Footnote_255_255" id="Footnote_255_255"></a><a href="#FNanchor_255_255"><span class="label">[255]</span></a> Wharton, II. § 230, comprises abundant and instructive +<div class="footnote"><p><a name="Footnote_255_255" id="Footnote_255_255"></a><a href="#FNanchor_255_255"><span class="label">[255]</span></a> Wharton, II. § 230, comprises abundant and instructive material on this question.</p></div> <p>An illustrative case is that of the <i>Costa Rica Packet</i>,<a name="FNanchor_256_256" id="FNanchor_256_256"></a><a href="#Footnote_256_256" class="fnanchor">[256]</a> @@ -12702,8 +12661,8 @@ crew of the <i>Costa Rica Packet</i>.<a name="FNanchor_257_257" id="FNanchor_257 <div class="footnote"><p><a name="Footnote_256_256" id="Footnote_256_256"></a><a href="#FNanchor_256_256"><span class="label">[256]</span></a> See Bles in R.I. XXVIII. (1896), pp. 452-468; Regelsperger in R.G. IV. (1897), pp. 735-745; Valery in R.G. V. (1898), pp. 57-66; -Moore, I. § 148. See also Ullmann, "De la responsabilité de l'état en -matière judiciaire" (1911).</p></div> +Moore, I. § 148. See also Ullmann, "De la responsabilité de l'état en +matière judiciaire" (1911).</p></div> <div class="footnote"><p><a name="Footnote_257_257" id="Footnote_257_257"></a><a href="#FNanchor_257_257"><span class="label">[257]</span></a> The whole correspondence on the subject and the award are printed in Martens, N.R.G. 2nd Ser. XXIII. (1898), pp. 48, 715, and @@ -12712,7 +12671,7 @@ printed in Martens, N.R.G. 2nd Ser. XXIII. (1898), pp. 48, 715, and <div class="sidenote"><p>Internationally injurious Acts of administrative Officials and Military and Naval Forces.</p></div> -<p>§ 163. <a name="In163" id="In163"></a>Internationally injurious acts committed in +<p>§ 163. <a name="In163" id="In163"></a>Internationally injurious acts committed in the exercise of their official functions by administrative officials and military and naval forces of a State without that State's command or authorisation, are not @@ -12779,7 +12738,7 @@ apologised for it, and punished the commander of the <div class="footnote"><p><a name="Footnote_260_260" id="Footnote_260_260"></a><a href="#FNanchor_260_260"><span class="label">[260]</span></a> Another example occurred in 1904, when the Russian Baltic Fleet, on its way to the Far East during the Russo-Japanese war, fired upon the Hull Fishing Fleet off the Dogger Bank; see - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th5">vol. II. § 5</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th5">vol. II. § 5</a>.</p></div> <p>(3) On July 15, 1911, while the Spanish were in occupation<span class="pagenum"><a name="Page_220" id="Page_220">[Pg 220]</a></span> of Alcazar in Morocco, M. Boisset, the French @@ -12833,10 +12792,10 @@ dangerous disease, and the like.</p> <div class="footnote"><p><a name="Footnote_261_261" id="Footnote_261_261"></a><a href="#FNanchor_261_261"><span class="label">[261]</span></a> Provided, however, such law does not violate essential principles of justice. See - below, § <a href="#Under_the_influence320">320</a>.</p></div> + below, § <a href="#Under_the_influence320">320</a>.</p></div> <div class="footnote"><p><a name="Footnote_262_262" id="Footnote_262_262"></a><a href="#FNanchor_262_262"><span class="label">[262]</span></a> See - below, § <a href="#Th167">167</a>.</p></div> + below, § <a href="#Th167">167</a>.</p></div> @@ -12846,13 +12805,13 @@ principles of justice. See <span class="smaller">STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS</span> </h4> -<p class="indh1">See the literature quoted above at the commencement of § <a href="#It_is_often_maintained148">148</a>, and -especially Moore, VI. §§ 1019-1031.</p> +<p class="indh1">See the literature quoted above at the commencement of § <a href="#It_is_often_maintained148">148</a>, and +especially Moore, VI. §§ 1019-1031.</p> <div class="sidenote"><p>Vicarious in contradistinction to original State Responsibility for Acts of Private Persons.</p></div> -<p>§ 164. As regards State responsibility for acts of +<p>§ 164. As regards State responsibility for acts of private persons, it is first of all necessary not to confound the original with the vicarious responsibility of States for internationally injurious acts of private @@ -12874,7 +12833,7 @@ incapable of prevention.</p> <div class="sidenote"><p>Vicarious responsibility for Acts of Private Persons relative only.</p></div> -<p>§ 165. Now, whereas the vicarious responsibility of +<p>§ 165. Now, whereas the vicarious responsibility of States for official acts of administrative officials and military and naval forces is unlimited and unrestricted, their vicarious responsibility for acts of private persons @@ -12889,7 +12848,7 @@ to do it.</p> <div class="sidenote"><p>Municipal Law for Offences against Foreign States.</p></div> -<p>§ 166. It is a consequence of the vicarious responsibility +<p>§ 166. It is a consequence of the vicarious responsibility of States for acts of private persons that by the Criminal Law of every civilised State punishment is severe for certain offences of private persons against @@ -12914,7 +12873,7 @@ acts, see Stephen's Digest, articles 96-103.</p></div> <div class="sidenote"><p>Responsibility for Acts of Insurgents and Rioters.</p></div> -<p>§ 167. <a name="Th167" id="Th167"></a>The vicarious responsibility of States for acts +<p>§ 167. <a name="Th167" id="Th167"></a>The vicarious responsibility of States for acts of insurgents and rioters is the same as for acts of other<span class="pagenum"><a name="Page_223" id="Page_223">[Pg 223]</a></span> private individuals. As soon as peace and order are re-established, such insurgents and rioters as have committed @@ -12971,7 +12930,7 @@ not responsible for losses sustained by foreign subjects on their territory through acts of insurgents and rioters.</p> <div class="footnote"><p><a name="Footnote_265_265" id="Footnote_265_265"></a><a href="#FNanchor_265_265"><span class="label">[265]</span></a> See - the cases in Calvo, III. §§ 1283-1290.</p></div> + the cases in Calvo, III. §§ 1283-1290.</p></div> <div class="footnote"><p><a name="Footnote_266_266" id="Footnote_266_266"></a><a href="#FNanchor_266_266"><span class="label">[266]</span></a> See Martens, N.R.G. IX. p. 474 (Germany and Mexico); XV. p. @@ -12979,10 +12938,10 @@ on their territory through acts of insurgents and rioters.</p> 308 (Italy and Colombia); and p. 507 (Italy and Paraguay).</p></div> <p>The Institute of International Law has studied the -matter and has proposed<a name="FNanchor_267_267" id="FNanchor_267_267"></a><a href="#Footnote_267_267" class="fnanchor">[267]</a> the following <i>Règlement</i> concerning +matter and has proposed<a name="FNanchor_267_267" id="FNanchor_267_267"></a><a href="#Footnote_267_267" class="fnanchor">[267]</a> the following <i>Règlement</i> concerning it:—</p> -<div class="footnote"><p><a name="Footnote_267_267" id="Footnote_267_267"></a><a href="#FNanchor_267_267"><span class="label">[267]</span></a> At its meeting at Neuchâtel in 1900; see +<div class="footnote"><p><a name="Footnote_267_267" id="Footnote_267_267"></a><a href="#FNanchor_267_267"><span class="label">[267]</span></a> At its meeting at Neuchâtel in 1900; see Annuaire, XVIII. p. 254.</p></div> @@ -13091,20 +13050,20 @@ riot, an insurrection, or of civil war.</p></div> <span class="smaller">ON STATE TERRITORY IN GENERAL</span> </h4> -<p class="indh1">Vattel, II. §§ 79-83—Hall, § 30—Westlake, I. pp. 84-88—Lawrence, §§ 71-72—Phillimore, -I. §§ 150-154—Twiss, I. §§ 140-144—Halleck, I. pp. 150-156—Taylor, -§ 217—Wheaton, §§ 161-163—Moore, I. § 125—Bluntschli, -§ 277—Hartmann, § 58—Holtzendorff in Holtzendorff, II. pp. 225-232—Gareis, -§ 18—Liszt, § 9—Ullmann, § 86—Heffter, §§ 65-68—Bonfils, No. -483—Despagnet, Nos. 374-377—Pradier-Fodéré, II. No. 612—Mérignhac, +<p class="indh1">Vattel, II. §§ 79-83—Hall, § 30—Westlake, I. pp. 84-88—Lawrence, §§ 71-72—Phillimore, +I. §§ 150-154—Twiss, I. §§ 140-144—Halleck, I. pp. 150-156—Taylor, +§ 217—Wheaton, §§ 161-163—Moore, I. § 125—Bluntschli, +§ 277—Hartmann, § 58—Holtzendorff in Holtzendorff, II. pp. 225-232—Gareis, +§ 18—Liszt, § 9—Ullmann, § 86—Heffter, §§ 65-68—Bonfils, No. +483—Despagnet, Nos. 374-377—Pradier-Fodéré, II. No. 612—Mérignhac, II. pp. 356-366—Nys, I. pp. 402-412—Rivier, I. pp. 135-142—Calvo, I. -§§ 260-262—Fiore, I. Nos. 522-530—Martens, I. § 88—Del Bon, -"Proprietà territoriale degli Stati" (1867)—Fricker, "Vom Staatsgebiet" +§§ 260-262—Fiore, I. Nos. 522-530—Martens, I. § 88—Del Bon, +"Proprietà territoriale degli Stati" (1867)—Fricker, "Vom Staatsgebiet" (1867).</p> <div class="sidenote"><p>Conception of State Territory.</p></div> -<p>§ 168. <a name="State_territory_is_that168" id="State_territory_is_that168"></a>State territory is that definite portion of the +<p>§ 168. <a name="State_territory_is_that168" id="State_territory_is_that168"></a>State territory is that definite portion of the surface of the globe which is subjected to the sovereignty of the State. A State without a territory is not possible, although the necessary territory may be @@ -13137,7 +13096,7 @@ the State territory at will and without the consent of Parliament.<a name="FNanchor_271_271" id="FNanchor_271_271"></a><a href="#Footnote_271_271" class="fnanchor">[271]</a></p> <div class="footnote"><p><a name="Footnote_270_270" id="Footnote_270_270"></a><a href="#FNanchor_270_270"><span class="label">[270]</span></a> And some writers refuse to draw it even nowadays, as, for -instance, Lawrence, § 71.</p></div> +instance, Lawrence, § 71.</p></div> <div class="footnote"><p><a name="Footnote_271_271" id="Footnote_271_271"></a><a href="#FNanchor_271_271"><span class="label">[271]</span></a> In English Constitutional Law this point is not settled. The cession of the Island of Heligoland to Germany in 1890 was, however, @@ -13153,7 +13112,7 @@ or the Austrians.</p> <div class="sidenote"><p>Different kinds of Territory.</p></div> -<p>§ 169. <a name="Th169" id="Th169"></a>The territory of a State may consist of one +<p>§ 169. <a name="Th169" id="Th169"></a>The territory of a State may consist of one piece of the surface of the globe only, such as that of Switzerland. Such kind of territory is named "integrate territory" (<i>territorium clausum</i>). But the territory @@ -13189,11 +13148,11 @@ Nations, is internationally for the most part considered a mere portion of the Suzerain State.<a name="FNanchor_272_272" id="FNanchor_272_272"></a><a href="#Footnote_272_272" class="fnanchor">[272]</a></p> <div class="footnote"><p><a name="Footnote_272_272" id="Footnote_272_272"></a><a href="#FNanchor_272_272"><span class="label">[272]</span></a> See - above, § <a href="#Th91">91</a>.</p></div> + above, § <a href="#Th91">91</a>.</p></div> <div class="sidenote"><p>Importance of State Territory.</p></div> -<p>§ 170. The importance of State territory lies in the +<p>§ 170. The importance of State territory lies in the fact that it is the space within which the State exercises its supreme authority. State territory is an object of the Law of Nations because the latter recognises the @@ -13211,11 +13170,11 @@ international treaties may, restrict<a name="FNanchor_273_273" id="FNanchor_273_ in many points in the exercise of its sovereignty.</p> <div class="footnote"><p><a name="Footnote_273_273" id="Footnote_273_273"></a><a href="#FNanchor_273_273"><span class="label">[273]</span></a> See - above, §§ <a href="#Independence_is_not126">126</a>-128.</p></div> + above, §§ <a href="#Independence_is_not126">126</a>-128.</p></div> <div class="sidenote"><p>One Territory, one State.</p></div> -<p>§ 171. <a name="Th171" id="Th171"></a>The supreme authority which a State exercises +<p>§ 171. <a name="Th171" id="Th171"></a>The supreme authority which a State exercises over its territory makes it apparent that on one<span class="pagenum"><a name="Page_232" id="Page_232">[Pg 232]</a></span> and the same territory can exist one full-Sovereign State only. Two or more full-Sovereign States on one @@ -13249,14 +13208,14 @@ over these pieces, but they agree upon a joint administration under their conjoint sovereignty.</p> <div class="footnote"><p><a name="Footnote_274_274" id="Footnote_274_274"></a><a href="#FNanchor_274_274"><span class="label">[274]</span></a> See - Schröder, "Das grenzstreitige Gebiet von Moresnet" + Schröder, "Das grenzstreitige Gebiet von Moresnet" (1902).</p></div> <div class="footnote"><p><a name="Footnote_275_275" id="Footnote_275_275"></a><a href="#FNanchor_275_275"><span class="label">[275]</span></a> The New Hebrides are materially likewise under a <i>condominium</i>, namely, that of Great Britain and France, although article 1 of the Convention of October 20, 1906—see Martens, N.R.G. 3rd Ser. I. (1909), p. 523—speaks only of "a region of joint influence" -with regard to the New Hebrides. See Brunet, "Le Régime International +with regard to the New Hebrides. See Brunet, "Le Régime International des Nouvelles-Hebrides" (1908), and Politis in R.G. XIV. (1907), pp. 689-759.</p></div> @@ -13287,7 +13246,7 @@ Austria-Hungary had therefore no right to annex, in provinces of Bosnia and Herzegovina.<a name="FNanchor_277_277" id="FNanchor_277_277"></a><a href="#Footnote_277_277" class="fnanchor">[277]</a></p> <div class="footnote"><p><a name="Footnote_277_277" id="Footnote_277_277"></a><a href="#FNanchor_277_277"><span class="label">[277]</span></a> See - above, § <a href="#Soon_after_the_Hague50">50</a>.</p></div> + above, § <a href="#Soon_after_the_Hague50">50</a>.</p></div> <p>(3) <a name="The_third_case3of171" id="The_third_case3of171"></a>The third case is that of a piece of territory leased or pledged by the owner-State to a foreign Power. @@ -13311,7 +13270,7 @@ lease-holder who exercises sovereignty over the territory concerned.</p> <div class="footnote"><p><a name="Footnote_278_278" id="Footnote_278_278"></a><a href="#FNanchor_278_278"><span class="label">[278]</span></a> See - below, § <a href="#The_only_form216">216</a>.</p></div> + below, § <a href="#The_only_form216">216</a>.</p></div> <div class="footnote"><p><a name="Footnote_279_279" id="Footnote_279_279"></a><a href="#FNanchor_279_279"><span class="label">[279]</span></a> Russia in 1905, by the Peace Treaty of Portsmouth, transferred her lease to Japan.</p></div> @@ -13345,7 +13304,7 @@ really cession all but in name, and it is certain that only the grantee exercises sovereignty there.</p> <div class="footnote"><p><a name="Footnote_283_283" id="Footnote_283_283"></a><a href="#FNanchor_283_283"><span class="label">[283]</span></a> See - below, § <a href="#Already_in184">184</a>, and Boyd in + below, § <a href="#Already_in184">184</a>, and Boyd in R.G. XVII. (1910), pp. 614-624.</p></div> <p>(5) The fifth case is that of the territory of a Federal @@ -13362,7 +13321,7 @@ for so far as the Federal State possesses sovereignty the member-States do not, and <i>vice versa</i>.</p> <div class="footnote"><p><a name="Footnote_284_284" id="Footnote_284_284"></a><a href="#FNanchor_284_284"><span class="label">[284]</span></a> See - above, § <a href="#A_Federal89">89</a>.<span class="pagenum"><a name="Page_235" id="Page_235">[Pg 235]</a></span></p></div> + above, § <a href="#A_Federal89">89</a>.<span class="pagenum"><a name="Page_235" id="Page_235">[Pg 235]</a></span></p></div> <h4> @@ -13373,14 +13332,14 @@ the member-States do not, and <i>vice versa</i>.</p> <div class="sidenote"><p>Real and Fictional parts of Territory.</p></div> -<p>§ 172. <a name="To_the_territory_of172" id="To_the_territory_of172"></a>To the territory of a State belong not only +<p>§ 172. <a name="To_the_territory_of172" id="To_the_territory_of172"></a>To the territory of a State belong not only the land within the State boundaries, but also the so-called territorial waters. They consist of the rivers, canals, and lakes which water the land, and, in the case of a State with a seacoast, of the maritime belt and certain gulfs, bays, and straits of the sea. These different kinds of territorial waters will be separately discussed -below in §§ 176-197. In contradistinction to +below in §§ 176-197. In contradistinction to these real parts of State territory there are some things that are either in every point or for some part treated as though they were territorial parts of a State. They @@ -13398,17 +13357,17 @@ of the State under whose flag they legitimately sail.<a name="FNanchor_287_287" id="FNanchor_287_287"></a><a href="#Footnote_287_287" class="fnanchor">[287]</a></p> <div class="footnote"><p><a name="Footnote_285_285" id="Footnote_285_285"></a><a href="#FNanchor_285_285"><span class="label">[285]</span></a> See - below, § <a href="#Th450">450</a>.</p></div> + below, § <a href="#Th450">450</a>.</p></div> <div class="footnote"><p><a name="Footnote_286_286" id="Footnote_286_286"></a><a href="#FNanchor_286_286"><span class="label">[286]</span></a> See - below, § <a href="#The_first_of_these_privileges390">390</a>.</p></div> + below, § <a href="#The_first_of_these_privileges390">390</a>.</p></div> <div class="footnote"><p><a name="Footnote_287_287" id="Footnote_287_287"></a><a href="#FNanchor_287_287"><span class="label">[287]</span></a> See - below, § <a href="#It_is_a_customary264">264</a>.</p></div> + below, § <a href="#It_is_a_customary264">264</a>.</p></div> <div class="sidenote"><p>Territorial Subsoil.</p></div> -<p>§ 173. <a name="The_subsoil173" id="The_subsoil173"></a>The subsoil beneath the territorial land and +<p>§ 173. <a name="The_subsoil173" id="The_subsoil173"></a>The subsoil beneath the territorial land and water<a name="FNanchor_288_288" id="FNanchor_288_288"></a><a href="#Footnote_288_288" class="fnanchor">[288]</a> is of importance on account of telegraph and telephone wires and the like, and further on account of the working of mines and of the building of tunnels. @@ -13419,12 +13378,12 @@ subsoil to an unbounded depth belongs to the State which owns the territory on the surface.</p> <div class="footnote"><p><a name="Footnote_288_288" id="Footnote_288_288"></a><a href="#FNanchor_288_288"><span class="label">[288]</span></a> As regards the subsoil of the Open Sea, see - below, §§ <a href="#The_subsoil287c">287<i>c</i></a> + below, §§ <a href="#The_subsoil287c">287<i>c</i></a> and <a href="#Since_there_is287d">287<i>d</i></a>.</p></div> <div class="sidenote"><p>Territorial Atmosphere.</p></div> -<p>§ 174. The space of the territorial atmosphere is no +<p>§ 174. The space of the territorial atmosphere is no more a special part of territory than the territorial subsoil, but it is of the greatest importance on account of wires for telegraphs, telephones, electric traction, and @@ -13452,21 +13411,21 @@ over its territory.</p> <div class="footnote"><p><a name="Footnote_289_289" id="Footnote_289_289"></a><a href="#FNanchor_289_289"><span class="label">[289]</span></a> See Meili, "Die drahtlose Telegraphie, &c." (1908); -Schneeli, "Drahtlose Telegraphie und Völkerrecht" (1908); Landsberg, +Schneeli, "Drahtlose Telegraphie und Völkerrecht" (1908); Landsberg, "Die drahtlose Telegraphie" (1909); Kausen, "Die drahtlose Telegraphie -im Völkerrecht" (1910); Rolland in R.G. XIII. (1906), pp. 58-92; +im Völkerrecht" (1910); Rolland in R.G. XIII. (1906), pp. 58-92; Fauchille in Annuaire, XXI. (1906), pp. 76-87; Bonfils, Nos. 531<span class="topnum">10</span> and 531<span class="topnum">11</span>; Despagnet, No. 433 <i>quater</i>; Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.</p></div> <div class="footnote"><p><a name="Footnote_290_290" id="Footnote_290_290"></a><a href="#FNanchor_290_290"><span class="label">[290]</span></a> See - below, §§ <a href="#Th287">287</a><i>a</i>, + below, §§ <a href="#Th287">287</a><i>a</i>, <a href="#To_secure_radio287b">287<i>b</i></a>, and <a href="#A_general_radio4of582">582, No. 4</a>.</p></div> <div class="footnote"><p><a name="Footnote_291_291" id="Footnote_291_291"></a><a href="#FNanchor_291_291"><span class="label">[291]</span></a> The Institute of International Law—see Annuaire, XXI. -(1906), p. 328—proposes by art. 3 of its "Régime de la Télégraphie sans +(1906), p. 328—proposes by art. 3 of its "Régime de la Télégraphie sans fil" to restrict the power of the territorial State to exclude such waves from passing over its territory to the case in which the exclusion is necessary in the interest of its security.</p></div> @@ -13518,27 +13477,27 @@ territorial State for the aerial traffic.<a name="FNanchor_293_293" id="FNanchor <div class="footnote"><p><a name="Footnote_292_292" id="Footnote_292_292"></a><a href="#FNanchor_292_292"><span class="label">[292]</span></a> The literature on aviation is abundant, see Holtzendorff, -II. p. 230; Lawrence, § 73; Bonfils, Nos. 531<span class="topnum">1</span>-531<span class="topnum">9</span>; Despagnet, Nos. -433 <i>bis</i> and 433 <i>ter</i>; Mérignhac, II. pp. 398-410; Nys, I. pp. -523-532; Grünwald, "Das Luftschiff, &c." (1908); Meili, "Das Luftschiff, +II. p. 230; Lawrence, § 73; Bonfils, Nos. 531<span class="topnum">1</span>-531<span class="topnum">9</span>; Despagnet, Nos. +433 <i>bis</i> and 433 <i>ter</i>; Mérignhac, II. pp. 398-410; Nys, I. pp. +523-532; Grünwald, "Das Luftschiff, &c." (1908); Meili, "Das Luftschiff, &c." (1908); Meurer, "Luftschiffahrtsrecht" (1909); Meyer, "Die Erschliessung des Luftraums und ihre rechtlichen Folgen" (1909); Magnani, "Il diritto sullo spazio aereo e l'aeronautica" (1909); Leech, "The Jurisprudence of the Air" (1910), a reprint from the <i>Journal of -the Royal Artillery</i>, vol. XXXVII.; Lycklama à Nijeholt, "Air +the Royal Artillery</i>, vol. XXXVII.; Lycklama à Nijeholt, "Air Sovereignty" (1910); Hazeltine, "The Law of the Air" (1911); Bielenberg, "Die Freiheit des Luftraums" (1911); Catellani, "Il diritto aereo" (1911); Sperl, "Die Luftschiffahrt, &c." (1911); Loubeyre, "Les -principes du droit aérien" (1911); Fauchille in Annuaire, XIX. (1902) +principes du droit aérien" (1911); Fauchille in Annuaire, XIX. (1902) pp. 19-114, XXIV. (1911), and in R.G. VIII. (1901), pp. 414-485, XVII. -(1910), pp. 55-62; Zitelmann in the <i>Zeitschrift für internationales -Privat- und Öffentliches Recht</i>, XIX. (1909), pp. 458-496; Baldwin and +(1910), pp. 55-62; Zitelmann in the <i>Zeitschrift für internationales +Privat- und Öffentliches Recht</i>, XIX. (1909), pp. 458-496; Baldwin and Kuhm in A.J. IV. (1910), pp. 95-108, 109-132; Baldwin in Z.V. V. (1911), pp. 394-399.</p></div> <div class="footnote"><p><a name="Footnote_293_293" id="Footnote_293_293"></a><a href="#FNanchor_293_293"><span class="label">[293]</span></a> The Institute of International Law is studying the question of aviation, and passed, in 1911, at its meeting in Madrid, some rules -concerning the "Régime juridiques des Aéronefs"; see Annuaire, XXIV. +concerning the "Régime juridiques des Aéronefs"; see Annuaire, XXIV. (1911).</p></div> <p>Aviation through the atmosphere above the Open @@ -13548,7 +13507,7 @@ sea, as will also aviation in general in time of war.</p> <div class="sidenote"><p>Inalienability of Parts of Territory.</p></div> -<p>§ 175. <a name="It_should_be_mentioned175" id="It_should_be_mentioned175"></a>It should be mentioned that not every part +<p>§ 175. <a name="It_should_be_mentioned175" id="It_should_be_mentioned175"></a>It should be mentioned that not every part of territory is alienable by the owner-State. For it is evident that the territorial waters are as much inseparable appurtenances of the land as are the territorial @@ -13567,10 +13526,10 @@ of land, although they are now an appurtenance of the one bank only.</p> <div class="footnote"><p><a name="Footnote_294_294" id="Footnote_294_294"></a><a href="#FNanchor_294_294"><span class="label">[294]</span></a> See - below, § <a href="#Maritime_belt185">185</a>.</p></div> + below, § <a href="#Maritime_belt185">185</a>.</p></div> <div class="footnote"><p><a name="Footnote_295_295" id="Footnote_295_295"></a><a href="#FNanchor_295_295"><span class="label">[295]</span></a> See - below, § <a href="#Natural_boundaries199">199</a>.</p></div> + below, § <a href="#Natural_boundaries199">199</a>.</p></div> @@ -13580,29 +13539,29 @@ of the one bank only.</p> </h4> -<p class="indh1">Grotius, II. c. 2, §§ 11-15—Pufendorf, III. c. 3, § 8—Vattel, II. §§ 117, 128, -129, 134—Hall, § 39—Westlake, I. pp. 142-159—Lawrence, § 92—Phillimore, -I. §§ 125-151—Twiss, I. § 145—Halleck, I. pp. 171-177—Taylor, -§§ 233-241—Walker, § 16—Wharton, I. § 30—Moore, I. §§ 128-132—Wheaton, -§§ 192-205—Bluntschli, §§ 314, 315—Hartmann, § 58—Heffter, -§ 77—Caratheodory in Holtzendorff, II. pp. 279-406—Gareis, § 20—Liszt, -§§ 9 and 27—Ullmann, §§ 87 and 105—Bonfils, Nos. 520-531—Despagnet, -Nos. 419-421—Mérignhac, II. pp. 605-632—Pradier-Fodéré, +<p class="indh1">Grotius, II. c. 2, §§ 11-15—Pufendorf, III. c. 3, § 8—Vattel, II. §§ 117, 128, +129, 134—Hall, § 39—Westlake, I. pp. 142-159—Lawrence, § 92—Phillimore, +I. §§ 125-151—Twiss, I. § 145—Halleck, I. pp. 171-177—Taylor, +§§ 233-241—Walker, § 16—Wharton, I. § 30—Moore, I. §§ 128-132—Wheaton, +§§ 192-205—Bluntschli, §§ 314, 315—Hartmann, § 58—Heffter, +§ 77—Caratheodory in Holtzendorff, II. pp. 279-406—Gareis, § 20—Liszt, +§§ 9 and 27—Ullmann, §§ 87 and 105—Bonfils, Nos. 520-531—Despagnet, +Nos. 419-421—Mérignhac, II. pp. 605-632—Pradier-Fodéré, II. Nos. 688-755—Nys, I. pp. 438-441, and II. pp. 109-131—Rivier, I. -p. 142 and § 14—Calvo, I. §§ 302-340—Fiore, II. Nos. 755-776, and -Code, §§ 283-285 and 976-982—Martens, I. § 102, II. § 57—Delavaud, +p. 142 and § 14—Calvo, I. §§ 302-340—Fiore, II. Nos. 755-776, and +Code, §§ 283-285 and 976-982—Martens, I. § 102, II. § 57—Delavaud, "Navigation ... sur les fleuves internationaux" (1885)—Engehardt, -"Du régime conventionnel des fleuves internationaux" (1879), and +"Du régime conventionnel des fleuves internationaux" (1879), and "Histoire du droit fluvial conventionnel" (1889)—Vernesco, "Des fleuves en droit international" (1888)—Orban, "Etude sur le droit fluvial -international" (1896)—Berges, "Du régime de navigation des fleuves +international" (1896)—Berges, "Du régime de navigation des fleuves internationaux" (1902)—Lopez, "Regimen internacional de los rios navigables" (1905)—Huber in Z.V. I. (1906), pp. 29 and 159—Hyde in A.J. IV. (1910), pp. 145-155.</p> <div class="sidenote"><p>Rivers State property of Riparian States.</p></div> -<p>§ 176. Theory and practice agree upon the rule that +<p>§ 176. Theory and practice agree upon the rule that rivers are part of the territory of the riparian State. Consequently, if a river lies wholly, that is, from its source to its mouth, within the boundaries of one and @@ -13628,7 +13587,7 @@ of the States concerned; each State owns that part of the river which runs through its territory.</p> <div class="footnote"><p><a name="Footnote_296_296" id="Footnote_296_296"></a><a href="#FNanchor_296_296"><span class="label">[296]</span></a> See - below, § <a href="#Natural_boundaries199">199</a>, and Huber in Z.V. I. (1906), pp. 29 and + below, § <a href="#Natural_boundaries199">199</a>, and Huber in Z.V. I. (1906), pp. 29 and 159.</p></div> <p>There is, however, another group of rivers to be @@ -13645,7 +13604,7 @@ Law.</p> <div class="sidenote"><p>Navigation on National, Boundary and not-National Rivers.</p></div> -<p>§ 177. There is no rule of the Law of Nations in +<p>§ 177. There is no rule of the Law of Nations in existence which grants foreign States the right of admittance of their public or private vessels to navigation on national rivers. In the absence of commercial or @@ -13653,9 +13612,9 @@ other treaties granting such a right, every State can exclude foreign vessels from its national rivers or admit them under certain conditions only, such as the payment of a due and the like. The teaching of Grotius -(II. c. 2, § 12) that innocent passage through rivers +(II. c. 2, § 12) that innocent passage through rivers must be granted has not been recognised by the practice -of the States, and Bluntschli's assertion (§ 314) +of the States, and Bluntschli's assertion (§ 314) that such rivers as are navigable from the Open Sea must in time of peace be open to vessels of all nations, is at best an anticipation of a future rule of International @@ -13669,11 +13628,11 @@ States altogether unless prevented therefrom by virtue of special treaties.</p> <div class="footnote"><p><a name="Footnote_297_297" id="Footnote_297_297"></a><a href="#FNanchor_297_297"><span class="label">[297]</span></a> See - below, § <a href="#Apart_from_navigation178a">178<i>a</i></a>.</p></div> + below, § <a href="#Apart_from_navigation178a">178<i>a</i></a>.</p></div> <div class="sidenote"><p>Navigation on International Rivers.</p></div> -<p>§ 178. <a name="Whereas_there_is_certainly178" id="Whereas_there_is_certainly178"></a>Whereas there is certainly no recognised +<p>§ 178. <a name="Whereas_there_is_certainly178" id="Whereas_there_is_certainly178"></a>Whereas there is certainly no recognised principle of free navigation on national, boundary, and not-national rivers, a movement for the recognition of free navigation on international rivers set in at the @@ -13705,7 +13664,7 @@ realised in practice.</p> <div class="footnote"><p><a name="Footnote_298_298" id="Footnote_298_298"></a><a href="#FNanchor_298_298"><span class="label">[298]</span></a> Articles 108-117 of the Final Act of the Vienna Congress; see Martens, N.R. II. p. 427.</p></div> -<div class="footnote"><p><a name="Footnote_299_299" id="Footnote_299_299"></a><a href="#FNanchor_299_299"><span class="label">[299]</span></a> "Règlements pour la libre navigation des rivières"; see +<div class="footnote"><p><a name="Footnote_299_299" id="Footnote_299_299"></a><a href="#FNanchor_299_299"><span class="label">[299]</span></a> "Règlements pour la libre navigation des rivières"; see Martens, N.R. II. p. 434.<span class="pagenum"><a name="Page_242" id="Page_242">[Pg 242]</a></span></p></div> <p>The next step was taken by the Peace Treaty of @@ -13721,7 +13680,7 @@ Danube Commission.</p> <div class="footnote"><p><a name="Footnote_300_300" id="Footnote_300_300"></a><a href="#FNanchor_300_300"><span class="label">[300]</span></a> See Martens, N.R.G. XV. p. 776. The documents concerning navigation on the Danube are collected by Sturdza, "Recueil de documents -relatifs à la liberté de navigation du Danube" (Berlin, 1904).</p></div> +relatifs à la liberté de navigation du Danube" (Berlin, 1904).</p></div> <p>A further development took place at the Congo Conference at Berlin in 1884-85, since the General Act<a name="FNanchor_301_301" id="FNanchor_301_301"></a><a href="#Footnote_301_301" class="fnanchor">[301]</a> @@ -13746,8 +13705,8 @@ in 1903 in favour of free navigation for merchantmen of all nations on the rivers Amakourou and Barima.</p> <div class="footnote"><p><a name="Footnote_302_302" id="Footnote_302_302"></a><a href="#FNanchor_302_302"><span class="label">[302]</span></a> See - Taylor, § 238, and Moore, I. -§ 131, pp. 639-651.</p></div> + Taylor, § 238, and Moore, I. +§ 131, pp. 639-651.</p></div> <p>Thus the principle of free navigation, which is a settled fact as regards all European and some African @@ -13771,8 +13730,8 @@ the United States, but not for vessels of other nations, free navigation "for ever" on the same river.<a name="FNanchor_303_303" id="FNanchor_303_303"></a><a href="#Footnote_303_303" class="fnanchor">[303]</a></p> <div class="footnote"><p><a name="Footnote_303_303" id="Footnote_303_303"></a><a href="#FNanchor_303_303"><span class="label">[303]</span></a> See - Wharton, pp. 81-83; Moore, I. § 131, p. 631, and Hall, -§ 39.</p></div> + Wharton, pp. 81-83; Moore, I. § 131, p. 631, and Hall, +§ 39.</p></div> <p>However this may be, the principle of free navigation embodies the rule that vessels of all nations must @@ -13788,7 +13747,7 @@ the rivers Rhine and Elbe, see Arndt in Z.V. IV. (1910), pp. 208-229.</p></div> <p>I should mention that the Institute of International Law, at its meeting at Heidelberg in 1888, adopted a -<i>Projet de Règlement international de navigation fluviale</i>,<a name="FNanchor_305_305" id="FNanchor_305_305"></a><a href="#Footnote_305_305" class="fnanchor">[305]</a> +<i>Projet de Règlement international de navigation fluviale</i>,<a name="FNanchor_305_305" id="FNanchor_305_305"></a><a href="#Footnote_305_305" class="fnanchor">[305]</a> which comprises forty articles.</p> <div class="footnote"><p><a name="Footnote_305_305" id="Footnote_305_305"></a><a href="#FNanchor_305_305"><span class="label">[305]</span></a> See @@ -13796,7 +13755,7 @@ which comprises forty articles.</p> <div class="sidenote"><p>Utilisation of the flow of rivers.</p></div> -<p>§ 178<i>a</i>. <a name="Apart_from_navigation178a" id="Apart_from_navigation178a"></a>Apart from navigation on rivers, the question +<p>§ 178<i>a</i>. <a name="Apart_from_navigation178a" id="Apart_from_navigation178a"></a>Apart from navigation on rivers, the question of the utilisation of the flow of rivers is of importance. With regard to national rivers, the question can not indeed be raised, since the local State is absolutely @@ -13818,12 +13777,12 @@ concerning special cases, neither customary nor conventional detailed rules of International Law concerning this subject are in existence, the Institute of International Law, at its meeting at Madrid<a name="FNanchor_308_308" id="FNanchor_308_308"></a><a href="#Footnote_308_308" class="fnanchor">[308]</a> in 1911, adopted -the following "<i>Réglementation internationale des cours +the following "<i>Réglementation internationale des cours d'eau internationaux au point de vue de leur force motrice et de leur utilisation industrielle ou agricole</i>":—</p> <div class="footnote"><p><a name="Footnote_306_306" id="Footnote_306_306"></a><a href="#FNanchor_306_306"><span class="label">[306]</span></a> See - above, § <a href="#Just_like_independence127">127</a>.</p></div> + above, § <a href="#Just_like_independence127">127</a>.</p></div> <div class="footnote"><p><a name="Footnote_307_307" id="Footnote_307_307"></a><a href="#FNanchor_307_307"><span class="label">[307]</span></a> See, for instance, the treaty of Washington of January 11, @@ -13895,20 +13854,20 @@ situated on the territory of another State.</p> </h4> -<p class="indh1">Vattel, I. § 294—Hall, § 38—Phillimore, I. §§ 205-205<span class="smcap">A</span>—Twiss, I. § 181—Halleck, -I. p. 170—Moore, I. §§ 135-143—Bluntschli, § 316—Hartmann, -§ 58—Heffter, § 77—Caratheodory in Holtzendorff, II. pp. 378-385—Gareis, -§§ 20-21—Liszt, § 9—Ullmann, §§ 88 and 106—Bonfils, Nos. 495-505—Despagnet, -No. 407—Mérignhac, II. 587-596—Pradier-Fodéré, II. -Nos. 640-649—Nys, I. pp. 447-450—Calvo, I. §§ 301, 373, 383—Fiore, II. -Nos. 811-813, and Code, Nos. 279 and 1000—Martens, I. § 100—Rivier, I. -pp. 143-145, 230—Mischeff, "La Mer Noire et les détroits de Constantinople" +<p class="indh1">Vattel, I. § 294—Hall, § 38—Phillimore, I. §§ 205-205<span class="smcap">A</span>—Twiss, I. § 181—Halleck, +I. p. 170—Moore, I. §§ 135-143—Bluntschli, § 316—Hartmann, +§ 58—Heffter, § 77—Caratheodory in Holtzendorff, II. pp. 378-385—Gareis, +§§ 20-21—Liszt, § 9—Ullmann, §§ 88 and 106—Bonfils, Nos. 495-505—Despagnet, +No. 407—Mérignhac, II. 587-596—Pradier-Fodéré, II. +Nos. 640-649—Nys, I. pp. 447-450—Calvo, I. §§ 301, 373, 383—Fiore, II. +Nos. 811-813, and Code, Nos. 279 and 1000—Martens, I. § 100—Rivier, I. +pp. 143-145, 230—Mischeff, "La Mer Noire et les détroits de Constantinople" (1901)—Hunt in A.J. IV. (1910), pp. 285-313.</p> <div class="sidenote"><p>Lakes and land-locked seas State Property of Riparian States.</p></div> -<p>§ 179. <a name="Theory_and_practice_agree179" id="Theory_and_practice_agree179"></a>Theory and practice agree upon the rule that +<p>§ 179. <a name="Theory_and_practice_agree179" id="Theory_and_practice_agree179"></a>Theory and practice agree upon the rule that such lakes and land-locked seas as are entirely enclosed by the land of one and the same State are part of the territory of this State. Thus the Dead Sea in Palestine @@ -13925,7 +13884,7 @@ of the majority of writers, for special treaties frequently arrange what portions of such lakes and seas belong to the riparian States.<a name="FNanchor_310_310" id="FNanchor_310_310"></a><a href="#Footnote_310_310" class="fnanchor">[310]</a> Examples are:—The Lake of Constance,<a name="FNanchor_311_311" id="FNanchor_311_311"></a><a href="#Footnote_311_311" class="fnanchor">[311]</a> which is surrounded by the territories of -Germany (Baden, Würtemberg, Bavaria), Austria, and +Germany (Baden, Würtemberg, Bavaria), Austria, and Switzerland (Thurgau and St. Gall); the Lake of Geneva, which belongs to Switzerland and France; the Lakes of Huron, Erie, and Ontario, which belong to @@ -13933,26 +13892,26 @@ British Canada and the United States; the Caspian Sea, which belongs to Persia and Russia.<a name="FNanchor_312_312" id="FNanchor_312_312"></a><a href="#Footnote_312_312" class="fnanchor">[312]</a></p> <div class="footnote"><p><a name="Footnote_309_309" id="Footnote_309_309"></a><a href="#FNanchor_309_309"><span class="label">[309]</span></a> See, - for instance, Calvo, I. § 301; Caratheodory in + for instance, Calvo, I. § 301; Caratheodory in Holtzendorff, II. p. 378.</p></div> <div class="footnote"><p><a name="Footnote_310_310" id="Footnote_310_310"></a><a href="#FNanchor_310_310"><span class="label">[310]</span></a> As regards the utilisation of the flow of such lakes and seas, the same is valid as that concerning the utilisation of the flow of rivers; see - above, § <a href="#Apart_from_navigation178a">178<i>a</i></a>.</p></div> + above, § <a href="#Apart_from_navigation178a">178<i>a</i></a>.</p></div> <div class="footnote"><p><a name="Footnote_311_311" id="Footnote_311_311"></a><a href="#FNanchor_311_311"><span class="label">[311]</span></a> See - Stoffel, "Die Fischerei-Verhältnisse des Bodensees -unter besonderer Berücksichtigung der an ihm bestehenden Hoheitsrechte" + Stoffel, "Die Fischerei-Verhältnisse des Bodensees +unter besonderer Berücksichtigung der an ihm bestehenden Hoheitsrechte" (1906).</p></div> <div class="footnote"><p><a name="Footnote_312_312" id="Footnote_312_312"></a><a href="#FNanchor_312_312"><span class="label">[312]</span></a> But the Caspian Sea is almost entirely under Russian control through the two treaties of Gulistan (1813) and Tourkmantschai -(1828). See Rivier, I. p. 144, and Phillimore, I. § 205.</p></div> +(1828). See Rivier, I. p. 144, and Phillimore, I. § 205.</p></div> <div class="sidenote"><p>So-called International Lakes and Land-locked Seas.</p></div> -<p>§ 180. In analogy with so-called international rivers, +<p>§ 180. In analogy with so-called international rivers, such lakes and land-locked seas as are surrounded by the territories of several States and are at the same time navigable from the Open Sea, are called "international @@ -13971,14 +13930,14 @@ lakes of Huron, Erie, and Ontario.</p> <div class="footnote"><p><a name="Footnote_313_313" id="Footnote_313_313"></a><a href="#FNanchor_313_313"><span class="label">[313]</span></a> See, for instance, Rivier, I. p. 230; Caratheodory in -Holtzendorff, II. p. 378; Calvo, I. § 301.</p></div> +Holtzendorff, II. p. 378; Calvo, I. § 301.</p></div> <div class="footnote"><p><a name="Footnote_314_314" id="Footnote_314_314"></a><a href="#FNanchor_314_314"><span class="label">[314]</span></a> Article 15 of the General Act of the Congo Conference. (See Martens, N.R.G. 2nd Ser. X. p. 417.)</p></div> <div class="sidenote"><p>The Black Sea.</p></div> -<p>§ 181. <a name="It181" id="It181"></a>It is of interest to give some details regarding +<p>§ 181. <a name="It181" id="It181"></a>It is of interest to give some details regarding the Black Sea. This is a land-locked sea which was undoubtedly wholly a part of Turkish territory as long as the enclosing land was Turkish only, and as long as @@ -14013,7 +13972,7 @@ treaty, as was also free navigation for merchantmen of all nations on the Black Sea.</p> <div class="footnote"><p><a name="Footnote_315_315" id="Footnote_315_315"></a><a href="#FNanchor_315_315"><span class="label">[315]</span></a> See - below, § <a href="#Open_Sea_or_High252">252</a>.</p></div> + below, § <a href="#Open_Sea_or_High252">252</a>.</p></div> <div class="footnote"><p><a name="Footnote_316_316" id="Footnote_316_316"></a><a href="#FNanchor_316_316"><span class="label">[316]</span></a> See Martens, N.R.G. XV. p. 775.</p></div> @@ -14022,7 +13981,7 @@ all nations on the Black Sea.</p> Martens, N.R.G. XVIII. p. 303.</p></div> <div class="footnote"><p><a name="Footnote_318_318" id="Footnote_318_318"></a><a href="#FNanchor_318_318"><span class="label">[318]</span></a> See - below, § <a href="#Th197">197</a>.</p></div> + below, § <a href="#Th197">197</a>.</p></div> @@ -14031,25 +13990,25 @@ all nations on the Black Sea.</p> <span class="smaller">CANALS</span> </h4> -<p class="indh1">Westlake, I. pp. 320-331—Lawrence, § 90, and Essays, pp. 41-162—Phillimore, -I. §§ 399 and 207—Moore, III. §§ 336-371—Caratheodory in Holtzendorff, -II. pp. 386-405—Liszt, § 27—Ullmann, § 106—Bonfils, Nos. 511-515—Despagnet, -No. 418—Mérignhac, II. pp. 597-604—Pradier-Fodéré, II. -Nos. 658-660—Nys, I. pp. 475-495—Rivier, I. § 16—Calvo, I. §§ 376-380—Fiore, -Code, Nos. 983-987—Martens, II. § 59—Sir Travers Twiss in R.I. +<p class="indh1">Westlake, I. pp. 320-331—Lawrence, § 90, and Essays, pp. 41-162—Phillimore, +I. §§ 399 and 207—Moore, III. §§ 336-371—Caratheodory in Holtzendorff, +II. pp. 386-405—Liszt, § 27—Ullmann, § 106—Bonfils, Nos. 511-515—Despagnet, +No. 418—Mérignhac, II. pp. 597-604—Pradier-Fodéré, II. +Nos. 658-660—Nys, I. pp. 475-495—Rivier, I. § 16—Calvo, I. §§ 376-380—Fiore, +Code, Nos. 983-987—Martens, II. § 59—Sir Travers Twiss in R.I. VII. (1875), p. 682, XIV. (1882), p. 572, XVII. (1885), p. 615—Holland, Studies, pp. 270-298—Asser in R.I. XX. (1888), p. 529—Bustamante in R.I. XXVII. (1895), p. 112—Rossignol, "Le Canal de Suez" (1898)—Camand, -"Étude sur le régime juridique du Canal de Suez" (1899)—Charles-Roux, +"Étude sur le régime juridique du Canal de Suez" (1899)—Charles-Roux, "L'Isthme et le canal de Suez" (1901)—Othalom, "Der -Suezkanal" (1905)—Müller-Heymer, "Der Panamakanal in der Politik +Suezkanal" (1905)—Müller-Heymer, "Der Panamakanal in der Politik der Vereinigten Staaten" (1909)—Arias, "The Panama Canal" (1911)—Hains, Davis, Knapp, Wambough, Olney, and Kennedy in A.J. III. (1909), pp. 354 and 885, IV. (1910), p. 314, V. (1911), pp. 298, 615, 620.</p> <div class="sidenote"><p>Canals State Property of Riparian States.</p></div> -<p>§ 182. That canals are parts of the territories of the +<p>§ 182. That canals are parts of the territories of the respective territorial States is obvious from the fact that they are artificially constructed waterways. And there ought to be no doubt<a name="FNanchor_319_319" id="FNanchor_319_319"></a><a href="#Footnote_319_319" class="fnanchor">[319]</a> that all the rules regarding @@ -14061,7 +14020,7 @@ contemplated in the future. And as regards two of these, the Emperor William (Kiel or Baltic) Canal, which connects the Baltic with the North Sea, and the Corinth Canal, which connects the Gulf of Corinth with -the Gulf of Ægina, there is not much to be said. The +the Gulf of Ægina, there is not much to be said. The former is a canal made mainly for strategic purposes<span class="pagenum"><a name="Page_249" id="Page_249">[Pg 249]</a></span> by the German Empire entirely through German territory. Although Germany keeps it open for navigation @@ -14079,7 +14038,7 @@ Greece exclusively controls the navigation thereof.</p> <div class="sidenote"><p>The Suez Canal.</p></div> -<p>§ 183. <a name="The_most_important183" id="The_most_important183"></a>The most important of the interoceanic canals +<p>§ 183. <a name="The_most_important183" id="The_most_important183"></a>The most important of the interoceanic canals is that of Suez, which connects the Red Sea with the Mediterranean. Already in 1838 Prince Metternich gave his opinion that such a canal, if ever made, ought @@ -14166,7 +14125,7 @@ treaty to others and to invite them to accede thereto <div class="sidenote"><p>The Panama Canal.</p></div> -<p>§ 184. <a name="Already_in184" id="Already_in184"></a>Already in 1850 Great Britain and the United +<p>§ 184. <a name="Already_in184" id="Already_in184"></a>Already in 1850 Great Britain and the United States in the Clayton-Bulwer Treaty<a name="FNanchor_323_323" id="FNanchor_323_323"></a><a href="#Footnote_323_323" class="fnanchor">[323]</a> of Washington had stipulated the free navigation and neutralisation of a canal between the Pacific and the Atlantic Ocean @@ -14194,12 +14153,12 @@ be considered expedient, and its five articles are the following:—</p> <div class="footnote"><p><a name="Footnote_323_323" id="Footnote_323_323"></a><a href="#FNanchor_323_323"><span class="label">[323]</span></a> See - Martens, N.R.G. XV. p. 187, and Moore, III. §§ 351-365. + Martens, N.R.G. XV. p. 187, and Moore, III. §§ 351-365. According to its article 8 this treaty was also to be applied to a proposed canal through the Isthmus of Panama.</p></div> <div class="footnote"><p><a name="Footnote_324_324" id="Footnote_324_324"></a><a href="#FNanchor_324_324"><span class="label">[324]</span></a> See - Moore, III. §§ 366-368.</p></div> + Moore, III. §§ 366-368.</p></div> <p> @@ -14355,8 +14314,8 @@ Treaty.</p> <div class="footnote"><p><a name="Footnote_327_327" id="Footnote_327_327"></a><a href="#FNanchor_327_327"><span class="label">[327]</span></a> That this grant is really cession all but in name, was pointed out - above, <a href="#The_fourth_case4of171">§ 171 (4)</a>; see also - below § <a href="#The_only_form216">216</a>.<span class="pagenum"><a name="Page_255" id="Page_255">[Pg 255]</a></span></p></div> + above, <a href="#The_fourth_case4of171">§ 171 (4)</a>; see also + below § <a href="#The_only_form216">216</a>.<span class="pagenum"><a name="Page_255" id="Page_255">[Pg 255]</a></span></p></div> @@ -14365,21 +14324,21 @@ pointed out <span class="smaller">MARITIME BELT</span> </h4> -<p class="indh1">Grotius, II. c. 3, § 13—Vattel, I. §§ 287-290—Hall, §§ 41-42—Westlake, I. pp. -183-192—Lawrence, § 187—Phillimore, I. §§ 197-201—Twiss, I. §§ 144, -190-192—Halleck, I. pp. 157-167—Taylor, §§ 247-250—Walker, § 17—Wharton, -§ 32—Moore, I. §§ 144-152—Wheaton, §§ 177-180—Bluntschli, -§§ 302, 309-310—Hartmann, § 58—Heffter, § 75—Stoerk in Holtzendorff, -II. pp. 409-449—Gareis, § 21—Liszt, § 9—Ullmann, § 87—Bonfils, Nos. -491-494—Despagnet, Nos. 403-414—Mérignhac, II. pp. 370-392—Pradier-Fodéré, +<p class="indh1">Grotius, II. c. 3, § 13—Vattel, I. §§ 287-290—Hall, §§ 41-42—Westlake, I. pp. +183-192—Lawrence, § 187—Phillimore, I. §§ 197-201—Twiss, I. §§ 144, +190-192—Halleck, I. pp. 157-167—Taylor, §§ 247-250—Walker, § 17—Wharton, +§ 32—Moore, I. §§ 144-152—Wheaton, §§ 177-180—Bluntschli, +§§ 302, 309-310—Hartmann, § 58—Heffter, § 75—Stoerk in Holtzendorff, +II. pp. 409-449—Gareis, § 21—Liszt, § 9—Ullmann, § 87—Bonfils, Nos. +491-494—Despagnet, Nos. 403-414—Mérignhac, II. pp. 370-392—Pradier-Fodéré, II. Nos. 617-639—Nys, I. pp. 496-520—Rivier, I. pp. -145-153—Calvo, I. §§ 353-362—Fiore, II. Nos. 801-809, and Code, Nos. -271-273, 1025—Martens, I. § 99—Bynkershoek, "De dominio maris" and +145-153—Calvo, I. §§ 353-362—Fiore, II. Nos. 801-809, and Code, Nos. +271-273, 1025—Martens, I. § 99—Bynkershoek, "De dominio maris" and "Quaestiones juris publici," I. c. 8—Ortolan, "Diplomatie de la mer" (1856), I. pp. 150-175—Heilborn, System, pp. 37-57—Imbart-Latour, -"La mer territoriale, &c." (1889)—Godey, "La mer côtière" (1896)—Schücking, -"Das Küstenmeer im internationalen Recht" (1897)—Perels, -§ 5—Fulton, "The Sovereignty of the Seas" (1911), pp. 537-740—Barclay +"La mer territoriale, &c." (1889)—Godey, "La mer côtière" (1896)—Schücking, +"Das Küstenmeer im internationalen Recht" (1897)—Perels, +§ 5—Fulton, "The Sovereignty of the Seas" (1911), pp. 537-740—Barclay in Annuaire, XII. (1892), pp. 104-136, and XIII. (1894), pp. 125-162—Martens in R.G. I. (1894), pp. 32-43—Aubert, <i>ibidem</i>, pp. 429-441—Engelhardt in R.I. XXVI. (1894), pp. 209-213—Godey in R.G. III. (1896), @@ -14387,7 +14346,7 @@ pp. 224-237—Lapradelle in R.G. V. (1898), pp. 264-284, 309-347.</p> <div class="sidenote"><p>State Property of Maritime Belt contested.</p></div> -<p>§ 185. <a name="Maritime_belt185" id="Maritime_belt185"></a>Maritime belt is that part of the sea which, +<p>§ 185. <a name="Maritime_belt185" id="Maritime_belt185"></a>Maritime belt is that part of the sea which, in contradistinction to the Open Sea, is under the sway of the littoral States. But no unanimity exists with regard to the nature of the sway of the littoral States. @@ -14425,10 +14384,10 @@ waters of all kinds are inalienable appurtenances<a name="FNanchor_329_329" id=" the littoral and riparian States.<a name="FNanchor_330_330" id="FNanchor_330_330"></a><a href="#Footnote_330_330" class="fnanchor">[330]</a></p> <div class="footnote"><p><a name="Footnote_328_328" id="Footnote_328_328"></a><a href="#FNanchor_328_328"><span class="label">[328]</span></a> Hall, p. 158. The question is treated with great clearness -by Heilborn, "System," pp. 37-57, and Schücking, pp. 14-20.</p></div> +by Heilborn, "System," pp. 37-57, and Schücking, pp. 14-20.</p></div> <div class="footnote"><p><a name="Footnote_329_329" id="Footnote_329_329"></a><a href="#FNanchor_329_329"><span class="label">[329]</span></a> See - above, § <a href="#It_should_be_mentioned175">175</a>. Bynkershoek's ("De Dominio Maris," c. 5) + above, § <a href="#It_should_be_mentioned175">175</a>. Bynkershoek's ("De Dominio Maris," c. 5) opinion that a littoral State can alienate its maritime belt without the coast itself, is at the present day untenable.</p></div> @@ -14440,7 +14399,7 @@ be of the nature of sovereignty.</p></div> <div class="sidenote"><p>Breadth of Maritime Belt.</p></div> -<p>§ 186. Be that as it may, the question arises how +<p>§ 186. Be that as it may, the question arises how far into the sea those waters extend which are coast waters and are therefore under the sway of the littoral State. Here, too, no unanimity exists upon either the @@ -14459,7 +14418,7 @@ of this starting line, and many treaties stipulate the same.</p> <div class="footnote"><p><a name="Footnote_331_331" id="Footnote_331_331"></a><a href="#FNanchor_331_331"><span class="label">[331]</span></a> See - Schücking, p. 13.</p></div> + Schücking, p. 13.</p></div> <div class="footnote"><p><a name="Footnote_332_332" id="Footnote_332_332"></a><a href="#FNanchor_332_332"><span class="label">[332]</span></a> See Annuaire, XIII. p. 329.</p></div> @@ -14501,12 +14460,12 @@ six miles, or two marine leagues, as the breadth of the belt. See Annuaire, XIII. p. 281.</p></div> <div class="footnote"><p><a name="Footnote_335_335" id="Footnote_335_335"></a><a href="#FNanchor_335_335"><span class="label">[335]</span></a> See - above, § <a href="#There_is_no_doubt25">25</a>, and Maine, p. 39.</p></div> + above, § <a href="#There_is_no_doubt25">25</a>, and Maine, p. 39.</p></div> <div class="sidenote"><p>Fisheries, Cabotage, Police, and Maritime Ceremonials within the Belt.</p></div> -<p>§ 187. <a name="Theory_and_practice_agree187" id="Theory_and_practice_agree187"></a>Theory and practice agree upon the following<span class="pagenum"><a name="Page_258" id="Page_258">[Pg 258]</a></span> +<p>§ 187. <a name="Theory_and_practice_agree187" id="Theory_and_practice_agree187"></a>Theory and practice agree upon the following<span class="pagenum"><a name="Page_258" id="Page_258">[Pg 258]</a></span> principles with regard to fisheries, cabotage, police, and maritime ceremonials within the maritime belt:—</p> @@ -14537,10 +14496,10 @@ and geographical unit in contradistinction to the coasts of colonial dependencies of such country.</p> <div class="footnote"><p><a name="Footnote_337_337" id="Footnote_337_337"></a><a href="#FNanchor_337_337"><span class="label">[337]</span></a> See - Pradier-Fodéré, V. Nos. 2441, 2442.</p></div> + Pradier-Fodéré, V. Nos. 2441, 2442.</p></div> <div class="footnote"><p><a name="Footnote_338_338" id="Footnote_338_338"></a><a href="#FNanchor_338_338"><span class="label">[338]</span></a> See - below, § <a href="#The_meaning_of_the_term579">579</a>, where the matter is more amply treated.</p></div> + below, § <a href="#The_meaning_of_the_term579">579</a>, where the matter is more amply treated.</p></div> <p>(3) The littoral State can exclusively exercise police and control within its maritime belt in the interest of @@ -14554,11 +14513,11 @@ by such foreign merchantmen as enter its territorial maritime belt.<a name="FNanchor_339_339" id="FNanchor_339_339"></a><a href="#Footnote_339_339" class="fnanchor">[339]</a></p> <div class="footnote"><p><a name="Footnote_339_339" id="Footnote_339_339"></a><a href="#FNanchor_339_339"><span class="label">[339]</span></a> See - Twiss, I. § 194.</p></div> + Twiss, I. § 194.</p></div> <div class="sidenote"><p>Navigation within the Belt.</p></div> -<p>§ 188. <a name="Although_the_maritime188" id="Although_the_maritime188"></a>Although the maritime belt is a portion of<span class="pagenum"><a name="Page_259" id="Page_259">[Pg 259]</a></span> +<p>§ 188. <a name="Although_the_maritime188" id="Although_the_maritime188"></a>Although the maritime belt is a portion of<span class="pagenum"><a name="Page_259" id="Page_259">[Pg 259]</a></span> the territory of the littoral State and therefore under the absolute territorial supremacy of such State, the belt is nevertheless, according to the practice of all the @@ -14592,9 +14551,9 @@ peace would meet with stern opposition on the part of all other States.</p> <div class="footnote"><p><a name="Footnote_340_340" id="Footnote_340_340"></a><a href="#FNanchor_340_340"><span class="label">[340]</span></a> See - above, § <a href="#Intercourse_being_a_presupposition142">142</a>.</p></div> + above, § <a href="#Intercourse_being_a_presupposition142">142</a>.</p></div> -<div class="footnote"><p><a name="Footnote_341_341" id="Footnote_341_341"></a><a href="#FNanchor_341_341"><span class="label">[341]</span></a> Klüber, § 76; Pradier-Fodéré, II. No. 628.</p></div> +<div class="footnote"><p><a name="Footnote_341_341" id="Footnote_341_341"></a><a href="#FNanchor_341_341"><span class="label">[341]</span></a> Klüber, § 76; Pradier-Fodéré, II. No. 628.</p></div> <p>But a right of foreign States for their men-of-war to pass unhindered through the maritime belt is not @@ -14613,11 +14572,11 @@ form part of the highways for international traffic cannot be denied to foreign men-of-war.<a name="FNanchor_342_342" id="FNanchor_342_342"></a><a href="#Footnote_342_342" class="fnanchor">[342]</a></p> <div class="footnote"><p><a name="Footnote_342_342" id="Footnote_342_342"></a><a href="#FNanchor_342_342"><span class="label">[342]</span></a> See - below, § <a href="#Whereas_armed_forces449">449</a>.</p></div> + below, § <a href="#Whereas_armed_forces449">449</a>.</p></div> <div class="sidenote"><p>Jurisdiction within the Belt.</p></div> -<p>§ 189. <a name="That_the_littoral189" id="That_the_littoral189"></a>That the littoral State has exclusive jurisdiction +<p>§ 189. <a name="That_the_littoral189" id="That_the_littoral189"></a>That the littoral State has exclusive jurisdiction within the belt as regards mere matters of police and control is universally recognised. Thus it can exclude foreign pilots, can make custom-house arrangements, @@ -14642,8 +14601,8 @@ to exist.</p> <div class="footnote"><p><a name="Footnote_343_343" id="Footnote_343_343"></a><a href="#FNanchor_343_343"><span class="label">[343]</span></a> The Institute of International Law—see Annuaire, XVII. (1898), p. 273—adopted at its meeting at the Hague in 1898 a -"<i>Règlement</i> sur le régime légal des navires et de leurs équipages dans -les ports étrangers" comprising seven rules.</p></div> +"<i>Règlement</i> sur le régime légal des navires et de leurs équipages dans +les ports étrangers" comprising seven rules.</p></div> <div class="footnote"><p><a name="Footnote_344_344" id="Footnote_344_344"></a><a href="#FNanchor_344_344"><span class="label">[344]</span></a> See Perels, pp. 69-77. The Institute of International Law, @@ -14654,7 +14613,7 @@ through the belt. See Annuaire, XIII. p. 328.</p></div> <div class="sidenote"><p>Zone for Revenue and Sanitary Laws.</p></div> -<p>§ 190. <a name="Different_from_the_territorial190" id="Different_from_the_territorial190"></a>Different from the territorial maritime belt +<p>§ 190. <a name="Different_from_the_territorial190" id="Different_from_the_territorial190"></a>Different from the territorial maritime belt is the zone of the Open Sea, over which a littoral State extends the operation of its revenue and sanitary laws. The fact is that Great Britain and the United States, @@ -14685,9 +14644,9 @@ not yet within, their territorial maritime belt.</p> <div class="footnote"><p><a name="Footnote_345_345" id="Footnote_345_345"></a><a href="#FNanchor_345_345"><span class="label">[345]</span></a> See, for instance, the British so-called <i>Hovering Acts</i>, 9 Geo. II. c. 35 and 24 Geo. III. c. 47. The matter is treated by Moore, -I. § 151; Taylor, § 248; Twiss, I. § 190; Phillimore, I. § 198; Halleck, -I. p. 157; Stoerk in Holtzendorff, II. pp. 475-478; Perels, § 5, pp. -25-28. See also Hall, "Foreign Powers and Jurisdiction," §§ 108 and 109, +I. § 151; Taylor, § 248; Twiss, I. § 190; Phillimore, I. § 198; Halleck, +I. p. 157; Stoerk in Holtzendorff, II. pp. 475-478; Perels, § 5, pp. +25-28. See also Hall, "Foreign Powers and Jurisdiction," §§ 108 and 109, and Annuaire, XIII. (1894), pp. 135 and 141.<span class="pagenum"><a name="Page_262" id="Page_262">[Pg 262]</a></span></p></div> @@ -14698,22 +14657,22 @@ and Annuaire, XIII. (1894), pp. 135 and 141.<span class="pagenum"><a name="Page_ </h4> -<p class="indh1">Vattel, I. § 291—Hall, § 41—Westlake, I. pp. 183-192—Lawrence, § 72—Phillimore, -I. §§ 196-206—Twiss, I. §§ 181-182—Halleck, I. pp. 165-170—Taylor, -§§ 229-231—Walker, § 18—Wharton, I. §§ 27-28—Moore, I. § 153—Wheaton, -§§ 181-190—Bluntschli, §§ 309-310—Hartmann, § 58—Heffter, -§ 76—Stoerk in Holtzendorff, II. pp. 419-428—Gareis, § 21—Liszt, § 9—Ullmann, -§ 88—Bonfils, No. 516—Despagnet, Nos. 405-406—Mérignhac, -II. pp. 394-397—Pradier-Fodéré, II. Nos. 661-681—Nys, I. pp. 441-447—Rivier, -I. pp. 153-157—Calvo, I. §§ 366-367—Fiore, II. Nos. 808-815, and -Code, Nos. 278-279—Martens, I. § 100—Perels, § 5—Schücking, "Das -Küstenmeer im internationalen Recht" (1897), pp. 20-24—Barclay in +<p class="indh1">Vattel, I. § 291—Hall, § 41—Westlake, I. pp. 183-192—Lawrence, § 72—Phillimore, +I. §§ 196-206—Twiss, I. §§ 181-182—Halleck, I. pp. 165-170—Taylor, +§§ 229-231—Walker, § 18—Wharton, I. §§ 27-28—Moore, I. § 153—Wheaton, +§§ 181-190—Bluntschli, §§ 309-310—Hartmann, § 58—Heffter, +§ 76—Stoerk in Holtzendorff, II. pp. 419-428—Gareis, § 21—Liszt, § 9—Ullmann, +§ 88—Bonfils, No. 516—Despagnet, Nos. 405-406—Mérignhac, +II. pp. 394-397—Pradier-Fodéré, II. Nos. 661-681—Nys, I. pp. 441-447—Rivier, +I. pp. 153-157—Calvo, I. §§ 366-367—Fiore, II. Nos. 808-815, and +Code, Nos. 278-279—Martens, I. § 100—Perels, § 5—Schücking, "Das +Küstenmeer im internationalen Recht" (1897), pp. 20-24—Barclay in Annuaire, XII. pp. 127-129—Oppenheim in Z.V. I. (1907), pp. 579-587, and V. (1911), pp. 74-95.</p> <div class="sidenote"><p>Territorial Gulfs and Bays.</p></div> -<p>§ 191. <a name="It_is_generally_admitted191" id="It_is_generally_admitted191"></a>It is generally admitted that such gulfs and +<p>§ 191. <a name="It_is_generally_admitted191" id="It_is_generally_admitted191"></a>It is generally admitted that such gulfs and bays as are enclosed by the land of one and the same littoral State, and whose entrance from the sea is narrow enough to be commanded by coast batteries erected @@ -14727,8 +14686,8 @@ the name of the British Government, that they considered such bays only to be territorial as possessed an entrance <i>not</i> wider than six miles. The future will have to show whether Great Britain and her self-governing colonies consider themselves bound by this statement. No -writer of authority can be quoted in favour of it, although Walker (§ -18) and Wilson and Tucker (5th ed., 1910, § 53) state it. Westlake (vol. +writer of authority can be quoted in favour of it, although Walker (§ +18) and Wilson and Tucker (5th ed., 1910, § 53) state it. Westlake (vol. I. p. 187) cannot be cited in favour of it, since he distinguishes between bays and gulfs in such a way as is not generally done by international lawyers, and as is certainly not recognised by geography; @@ -14760,7 +14719,7 @@ such gulfs and bays with a wider entrance as have been considered territorial for more than one hundred years.<a name="FNanchor_348_348" id="FNanchor_348_348"></a><a href="#Footnote_348_348" class="fnanchor">[348]</a></p> <div class="footnote"><p><a name="Footnote_347_347" id="Footnote_347_347"></a><a href="#FNanchor_347_347"><span class="label">[347]</span></a> See - Taylor, § 229; Wharton, I. §§ 27 and 28; Moore, I. § + Taylor, § 229; Wharton, I. §§ 27 and 28; Moore, I. § 153.</p></div> <div class="footnote"><p><a name="Footnote_348_348" id="Footnote_348_348"></a><a href="#FNanchor_348_348"><span class="label">[348]</span></a> See @@ -14781,16 +14740,16 @@ of the so-called King's Chambers,<a name="FNanchor_349_349" id="FNanchor_349_349 portions of the sea between lines drawn from headland to headland.</p> -<div class="footnote"><p><a name="Footnote_349_349" id="Footnote_349_349"></a><a href="#FNanchor_349_349"><span class="label">[349]</span></a> Whereas Hall (§ 41, p. 162) says: "England would, no doubt, +<div class="footnote"><p><a name="Footnote_349_349" id="Footnote_349_349"></a><a href="#FNanchor_349_349"><span class="label">[349]</span></a> Whereas Hall (§ 41, p. 162) says: "England would, no doubt, not attempt any longer to assert a right of property over the King's -Chambers," Phillimore (I. § 200) still keeps up this claim. The attitude +Chambers," Phillimore (I. § 200) still keeps up this claim. The attitude of the British Government in the Moray Firth Case—see below, p. <a href="#Page_264">264</a>—would seem to demonstrate that this claim is no longer upheld. See -also Lawrence, § 87, and Westlake, I. p. 188.</p></div> +also Lawrence, § 87, and Westlake, I. p. 188.</p></div> <div class="sidenote"><p>Non-territorial Gulfs and Bays.</p></div> -<p>§ 192. <a name="Gulfs_and_bays192" id="Gulfs_and_bays192"></a>Gulfs and bays surrounded by the land of +<p>§ 192. <a name="Gulfs_and_bays192" id="Gulfs_and_bays192"></a>Gulfs and bays surrounded by the land of one and the same littoral State whose entrance is so wide that it cannot be commanded by coast batteries, and, further, all gulfs and bays enclosed by the land of @@ -14851,7 +14810,7 @@ or sold in the United Kingdom.<a name="FNanchor_353_353" id="FNanchor_353_353">< <div class="sidenote"><p>Navigation and Fishery in Territorial Gulfs and Bays.</p></div> -<p>§ 193. As regards navigation and fishery within +<p>§ 193. As regards navigation and fishery within territorial gulfs and bays, the same rules of the Law of Nations are valid as in the case of navigation and fishery within the territorial maritime belt. The right of fishery @@ -14877,19 +14836,19 @@ thirteen miles wide. See Martens, N.R.G. 2nd Ser. IX. (1884), p. 556.</p></div> </h4> -<p class="indh1">Vattel, I. § 292—Hall, § 41—Westlake, I. pp. 193-197—Lawrence, §§ 87-89—Phillimore, -I. §§ 180-196—Twiss, I. §§ 183, 184, 189—Halleck, I. pp. 165-170—Taylor, -§§ 229-231—Walker, § 17—Wharton, §§ 27-29—Wheaton, -§§ 181-190—Moore, I. §§ 133-134—Bluntschli, § 303—Hartmann, § 65—Heffter, -§ 76—Stoerk in Holtzendorff, II. pp. 419-428—Gareis, § 21—Liszt, -§§ 9 and 26—Ullmann, § 88—Bonfils, Nos. 506-511—Despagnet, -Nos. 415-417—Pradier-Fodéré, II. Nos. 650-656—Nys, I. pp. 451-474—Rivier, -I. pp. 157-159—Calvo, I. §§ 368-372—Fiore, II. Nos. 745-754, and -Code, Nos. 280-281—Martens, I. § 101—Holland, Studies, p. 277.</p> +<p class="indh1">Vattel, I. § 292—Hall, § 41—Westlake, I. pp. 193-197—Lawrence, §§ 87-89—Phillimore, +I. §§ 180-196—Twiss, I. §§ 183, 184, 189—Halleck, I. pp. 165-170—Taylor, +§§ 229-231—Walker, § 17—Wharton, §§ 27-29—Wheaton, +§§ 181-190—Moore, I. §§ 133-134—Bluntschli, § 303—Hartmann, § 65—Heffter, +§ 76—Stoerk in Holtzendorff, II. pp. 419-428—Gareis, § 21—Liszt, +§§ 9 and 26—Ullmann, § 88—Bonfils, Nos. 506-511—Despagnet, +Nos. 415-417—Pradier-Fodéré, II. Nos. 650-656—Nys, I. pp. 451-474—Rivier, +I. pp. 157-159—Calvo, I. §§ 368-372—Fiore, II. Nos. 745-754, and +Code, Nos. 280-281—Martens, I. § 101—Holland, Studies, p. 277.</p> <div class="sidenote"><p>What Straits are Territorial.</p></div> -<p>§ 194. <a name="All_straits194" id="All_straits194"></a>All straits which are so narrow as to be under +<p>§ 194. <a name="All_straits194" id="All_straits194"></a>All straits which are so narrow as to be under the command of coast batteries erected either on one or both sides of the straits, are territorial. Therefore,<span class="pagenum"><a name="Page_266" id="Page_266">[Pg 266]</a></span> straits of this kind which divide the land of one and the @@ -14909,7 +14868,7 @@ as long as the land opposite Hong Kong was Chinese territory.</p> <div class="footnote"><p><a name="Footnote_355_355" id="Footnote_355_355"></a><a href="#FNanchor_355_355"><span class="label">[355]</span></a> See - below, § <a href="#Natural_boundaries199">199</a>.</p></div> + below, § <a href="#Natural_boundaries199">199</a>.</p></div> <p>It would seem that claims of States over wider straits than those which can be commanded by guns @@ -14925,9 +14884,9 @@ her former claim,<a name="FNanchor_356_356" id="FNanchor_356_356"></a><a href="# Jurisdiction Act 1878 does not mention it.</p> <div class="footnote"><p><a name="Footnote_356_356" id="Footnote_356_356"></a><a href="#FNanchor_356_356"><span class="label">[356]</span></a> See - Phillimore, I. § 189, and - above, § <a href="#It_is_generally_admitted191">191</a> (King's -Chambers). Concerning the Bristol Channel, Hall (§ 41, p. 162, note 2) + Phillimore, I. § 189, and + above, § <a href="#It_is_generally_admitted191">191</a> (King's +Chambers). Concerning the Bristol Channel, Hall (§ 41, p. 162, note 2) remarks: "It was apparently decided by the Queen's Bench in Reg. <i>v.</i> Cunningham (Bell's "Crown Cases," 86) that the whole of the Bristol Channel between Somerset and Glamorgan is British territory; possibly, @@ -14937,7 +14896,7 @@ note 3.</p></div> <div class="sidenote"><p>Navigation, Fishery, and Jurisdiction in Straits.</p></div> -<p>§ 195. <a name="All195" id="All195"></a>All rules of the Law of Nations concerning +<p>§ 195. <a name="All195" id="All195"></a>All rules of the Law of Nations concerning navigation, fishery, and jurisdiction within the maritime belt apply likewise to navigation, fishery, and jurisdiction within straits. Foreign merchantmen, therefore,<span class="pagenum"><a name="Page_267" id="Page_267">[Pg 267]</a></span> @@ -14957,15 +14916,15 @@ or otherwise as by treaty arranged.</p> 410—to have a right to exclude foreign merchantmen from the passage through the Kara and the Yugor Straits, is therefore unfounded. As regards the Kara Sea, see - below, § <a href="#It_is_not_necessary253">253</a>, note 2.</p></div> + below, § <a href="#It_is_not_necessary253">253</a>, note 2.</p></div> <div class="footnote"><p><a name="Footnote_358_358" id="Footnote_358_358"></a><a href="#FNanchor_358_358"><span class="label">[358]</span></a> As, for instance, the Straits of Magellan. These straits were neutralised in 1881—see - below, § <a href="#The_so-called_Hay-Pauncefote568">568</a>, and -<a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Although_the_Open_Sea72">vol. II. § 72</a>—by a -treaty between Chili and Argentina. See Abribat, "Le détroit de Magellan + below, § <a href="#The_so-called_Hay-Pauncefote568">568</a>, and +<a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Although_the_Open_Sea72">vol. II. § 72</a>—by a +treaty between Chili and Argentina. See Abribat, "Le détroit de Magellan au point de vue international" (1902); Nys, I. pp. 470-474; and Moore, -I. § 134.</p></div> +I. § 134.</p></div> <p>It must, however, be stated that foreign merchantmen cannot be excluded from the passage through @@ -14979,15 +14938,15 @@ formerly the Bosphorus and the Dardanelles<a name="FNanchor_360_360" id="FNancho vessels can be excluded therefrom.</p> <div class="footnote"><p><a name="Footnote_359_359" id="Footnote_359_359"></a><a href="#FNanchor_359_359"><span class="label">[359]</span></a> See - below, § <a href="#Open_Sea_or_High252">252</a>.</p></div> + below, § <a href="#Open_Sea_or_High252">252</a>.</p></div> <div class="footnote"><p><a name="Footnote_360_360" id="Footnote_360_360"></a><a href="#FNanchor_360_360"><span class="label">[360]</span></a> See - below, § <a href="#Th197">197</a>.</p></div> + below, § <a href="#Th197">197</a>.</p></div> <div class="sidenote"><p>The former Sound Dues.</p></div> -<p>§ 196. The rule that foreign merchantmen must be +<p>§ 196. The rule that foreign merchantmen must be allowed inoffensive passage through territorial straits without any dues and tolls whatever, had one exception until the year 1857. From time immemorial, @@ -15013,7 +14972,7 @@ recognised.</p> <div class="footnote"><p><a name="Footnote_361_361" id="Footnote_361_361"></a><a href="#FNanchor_361_361"><span class="label">[361]</span></a> See the details, which have historical interest only, in -Twiss, I. § 188; Phillimore, I. § 189; Wharton, I. § 29; and Scherer, +Twiss, I. § 188; Phillimore, I. § 189; Wharton, I. § 29; and Scherer, "Der Sundzoll" (1845).</p></div> <div class="footnote"><p><a name="Footnote_362_362" id="Footnote_362_362"></a><a href="#FNanchor_362_362"><span class="label">[362]</span></a> The Treaty of Copenhagen of March 14, 1857. See @@ -15026,7 +14985,7 @@ N.R.G. XVII. 1st part, p. 210.</p></div> <div class="sidenote"><p>The Bosphorus and Dardanelles.</p></div> -<p>§ 197. <a name="Th197" id="Th197"></a>The Bosphorus and Dardanelles, the two +<p>§ 197. <a name="Th197" id="Th197"></a>The Bosphorus and Dardanelles, the two Turkish territorial straits which connect the Black Sea with the Mediterranean, must be specially mentioned.<a name="FNanchor_364_364" id="FNanchor_364_364"></a><a href="#Footnote_364_364" class="fnanchor">[364]</a> So long as the Black Sea was entirely enclosed by @@ -15060,12 +15019,12 @@ Treaty of Paris of 1856.</p> Question," p. 225, and Perels, p. 29.</p></div> <div class="footnote"><p><a name="Footnote_365_365" id="Footnote_365_365"></a><a href="#FNanchor_365_365"><span class="label">[365]</span></a> See - above, § <a href="#All195">195</a>.</p></div> + above, § <a href="#All195">195</a>.</p></div> <div class="footnote"><p><a name="Footnote_366_366" id="Footnote_366_366"></a><a href="#FNanchor_366_366"><span class="label">[366]</span></a> The United States, although she actually acquiesces in the exclusion of her men-of-war, seems not to consider herself bound by the -Convention of London, to which she is not a party. See Wharton, I. § 29, -pp. 79 and 80, and Moore, I. § 134, pp. 666-668.</p></div> +Convention of London, to which she is not a party. See Wharton, I. § 29, +pp. 79 and 80, and Moore, I. § 134, pp. 666-668.</p></div> <p>On the whole, the rule has in practice always been upheld by Turkey. Foreign light public vessels in the @@ -15095,7 +15054,7 @@ hoisting the Russian war flag.<a name="FNanchor_368_368" id="FNanchor_368_368">< Perels, p. 30.</p></div> <div class="footnote"><p><a name="Footnote_368_368" id="Footnote_368_368"></a><a href="#FNanchor_368_368"><span class="label">[368]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#A_case_which_happened_in84">vol. II. § 84</a>.<span class="pagenum"><a name="Page_270" id="Page_270">[Pg 270]</a></span></p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#A_case_which_happened_in84">vol. II. § 84</a>.<span class="pagenum"><a name="Page_270" id="Page_270">[Pg 270]</a></span></p></div> @@ -15106,18 +15065,18 @@ hoisting the Russian war flag.<a name="FNanchor_368_368" id="FNanchor_368_368">< -<p class="indh1">Grotius, II. c. 3, § 18—Vattel, I. § 266—Hall, § 38—Westlake, I. pp. 141-142—Twiss, -I. §§ 147-148—Taylor, § 251—Moore, I. §§ 154-162—Bluntschli, -§§ 296-302—Hartmann, § 59—Heffter, § 66—Holtzendorff in Holtzendorff, -II. pp. 232-239—Gareis, § 19—Liszt, § 9—Ullmann, § 91—Bonfils, Nos. -486-489—Despagnet, No. 377—Pradier-Fodéré, II. Nos. 759-777—Mérignhac, -II. p. 358—Nys, I. pp. 413-422—Rivier, I. § 11—Calvo, I. §§ +<p class="indh1">Grotius, II. c. 3, § 18—Vattel, I. § 266—Hall, § 38—Westlake, I. pp. 141-142—Twiss, +I. §§ 147-148—Taylor, § 251—Moore, I. §§ 154-162—Bluntschli, +§§ 296-302—Hartmann, § 59—Heffter, § 66—Holtzendorff in Holtzendorff, +II. pp. 232-239—Gareis, § 19—Liszt, § 9—Ullmann, § 91—Bonfils, Nos. +486-489—Despagnet, No. 377—Pradier-Fodéré, II. Nos. 759-777—Mérignhac, +II. p. 358—Nys, I. pp. 413-422—Rivier, I. § 11—Calvo, I. §§ 343-352—Fiore, II. Nos. 799-806, and Code, Nos. 1040-1049—Martens, I. -§ 89—Lord Curzon of Kedleston, "Frontiers" (Romanes lecture of 1907).</p> +§ 89—Lord Curzon of Kedleston, "Frontiers" (Romanes lecture of 1907).</p> <div class="sidenote"><p>Natural and Artificial Boundaries.</p></div> -<p>§ 198. Boundaries of State territory are the imaginary +<p>§ 198. Boundaries of State territory are the imaginary lines on the surface of the earth which separate the territory of one State from that of another, or from unappropriated territory, or from the Open Sea. The @@ -15143,7 +15102,7 @@ walls, and the Chinese Wall may also be cited as an example.</p></div> <div class="sidenote"><p>Boundary Waters.</p></div> -<p>§ 199. <a name="Natural_boundaries199" id="Natural_boundaries199"></a>Natural boundaries consisting of water must +<p>§ 199. <a name="Natural_boundaries199" id="Natural_boundaries199"></a>Natural boundaries consisting of water must be specially discussed on account of the different kinds of boundary waters. Such kinds are rivers, lakes, landlocked seas, and the maritime belt.</p> @@ -15171,7 +15130,7 @@ special treaty arrangements, through the middle of the bridge. As regards the boundary lines running through islands rising in boundary rivers and through the abandoned beds of such rivers, see - below, §§ <a href="#The_same_and_other234">234</a> + below, §§ <a href="#The_same_and_other234">234</a> and <a href="#It_happens_sometimes235">235</a>.</p> <div class="footnote"><p><a name="Footnote_370_370" id="Footnote_370_370"></a><a href="#FNanchor_370_370"><span class="label">[370]</span></a> See @@ -15182,10 +15141,10 @@ a river runs through the lands of two different States. In this latter case the boundary line runs across the river.</p></div> <div class="footnote"><p><a name="Footnote_372_372" id="Footnote_372_372"></a><a href="#FNanchor_372_372"><span class="label">[372]</span></a> See - above, § <a href="#It_should_be_mentioned175">175</a>.</p></div> + above, § <a href="#It_should_be_mentioned175">175</a>.</p></div> <div class="footnote"><p><a name="Footnote_373_373" id="Footnote_373_373"></a><a href="#FNanchor_373_373"><span class="label">[373]</span></a> See - Twiss, I. §§ 147 and 148, and Westlake, I. p. 142.</p></div> + Twiss, I. §§ 147 and 148, and Westlake, I. p. 142.</p></div> <p>(2) Boundary lakes and land-locked seas are such as separate the lands of two or more different States from @@ -15194,10 +15153,10 @@ of these lakes and seas, but as a rule special treaties portion off such lakes and seas between riparian States.<a name="FNanchor_374_374" id="FNanchor_374_374"></a><a href="#Footnote_374_374" class="fnanchor">[374]</a></p> <div class="footnote"><p><a name="Footnote_374_374" id="Footnote_374_374"></a><a href="#FNanchor_374_374"><span class="label">[374]</span></a> See - above, § <a href="#Theory_and_practice_agree179">179</a>.</p></div> + above, § <a href="#Theory_and_practice_agree179">179</a>.</p></div> <p>(3) The boundary line of the maritime belt is, according -to details given above (§ 186), uncertain, since no +to details given above (§ 186), uncertain, since no unanimity prevails with regard to the width of the belt. It is, however, certain that the boundary line runs not nearer to the shore than three miles, or one marine @@ -15209,12 +15168,12 @@ the middle or through the mid-channel,<a name="FNanchor_375_375" id="FNanchor_37 treaties make different arrangements.</p> <div class="footnote"><p><a name="Footnote_375_375" id="Footnote_375_375"></a><a href="#FNanchor_375_375"><span class="label">[375]</span></a> See - Twiss, I. §§ 183 and 184, and - above, § <a href="#All_straits194">194</a>.</p></div> + Twiss, I. §§ 183 and 184, and + above, § <a href="#All_straits194">194</a>.</p></div> <div class="sidenote"><p>Boundary Mountains.</p></div> -<p>§ 200. Boundary mountains or hills are such natural +<p>§ 200. Boundary mountains or hills are such natural elevations from the common level of the ground as separate the territories of two or more States from each other. Failing special treaty arrangements, the boundary @@ -15228,7 +15187,7 @@ they separate.<a name="FNanchor_376_376" id="FNanchor_376_376"></a><a href="#Foo <div class="sidenote"><p>Boundary Disputes.</p></div> -<p>§ 201. Boundary lines are, for many reasons, of such +<p>§ 201. Boundary lines are, for many reasons, of such vital importance that disputes relating thereto are inevitably very frequent and have often led to war. During the nineteenth century, however, a tendency @@ -15257,11 +15216,11 @@ the Dominion of Canada, signed at Washington on April 11, 1908. See Martens, N.R.G. 3rd Ser. IV. (1911), p. 191.</p></div> <div class="footnote"><p><a name="Footnote_378_378" id="Footnote_378_378"></a><a href="#FNanchor_378_378"><span class="label">[378]</span></a> See - above, § <a href="#Th171">171</a>, No. 1.</p></div> + above, § <a href="#Th171">171</a>, No. 1.</p></div> <div class="sidenote"><p>Natural Boundaries <i>sensu politico</i>.</p></div> -<p>§ 202. Whereas the term "natural boundaries" in +<p>§ 202. Whereas the term "natural boundaries" in the theory and practice of the Law of Nations means natural signs which indicate the course of boundary lines, the same term is used politically<a name="FNanchor_379_379" id="FNanchor_379_379"></a><a href="#Footnote_379_379" class="fnanchor">[379]</a> in various different @@ -15290,14 +15249,14 @@ politically.</p> </h4> -<p class="indh1">Vattel, I. § 89—Hall, § 42*—Westlake, I. p. 61—Phillimore, I. §§ 281-283—Twiss, -I. § 245—Taylor, § 252—Moore, I. §§ 163-168, II. § 177—Bluntschli, -§§ 353-359—Hartmann, § 62—Heffter, § 43—Holtzendorff -in Holtzendorff, II. pp. 242-252—Gareis, § 71—Liszt, §§ 8 and 19—Ullmann, -§ 99—Bonfils, Nos. 340-344—Despagnet, Nos. 190-192—Mérignhac, -II. pp. 366-368—Pradier-Fodéré, II. Nos. 834-845, 1038—Rivier, -I. pp. 296-303—Nys, II. pp. 271-279—Calvo, III. § 1583—Fiore, -I. § 380, and Code, Nos. 1095-1097—Martens, I. §§ 94-95—Clauss, "Die +<p class="indh1">Vattel, I. § 89—Hall, § 42*—Westlake, I. p. 61—Phillimore, I. §§ 281-283—Twiss, +I. § 245—Taylor, § 252—Moore, I. §§ 163-168, II. § 177—Bluntschli, +§§ 353-359—Hartmann, § 62—Heffter, § 43—Holtzendorff +in Holtzendorff, II. pp. 242-252—Gareis, § 71—Liszt, §§ 8 and 19—Ullmann, +§ 99—Bonfils, Nos. 340-344—Despagnet, Nos. 190-192—Mérignhac, +II. pp. 366-368—Pradier-Fodéré, II. Nos. 834-845, 1038—Rivier, +I. pp. 296-303—Nys, II. pp. 271-279—Calvo, III. § 1583—Fiore, +I. § 380, and Code, Nos. 1095-1097—Martens, I. §§ 94-95—Clauss, "Die Lehre von den Staatsdienstbarkeiten" (1894)—Fabres, "Des servitudes dans le droit international" (1901)—Hollatz, "Begriff und Wesen der Staatsservituten" (1909)—Labrousse, "Des servitudes en droit international @@ -15306,7 +15265,7 @@ and XIII. (1911), pp. 312-323.</p> <div class="sidenote"><p>Conception of State Servitudes.</p></div> -<p>§ 203. <a name="State_servitudes203" id="State_servitudes203"></a>State servitudes are those exceptional and +<p>§ 203. <a name="State_servitudes203" id="State_servitudes203"></a>State servitudes are those exceptional and conventional restrictions on the territorial supremacy of a State by which a part or the whole of its territory<span class="pagenum"><a name="Page_274" id="Page_274">[Pg 274]</a></span> is in a limited way made perpetually to serve a certain @@ -15330,8 +15289,8 @@ territorial supremacy, that a State is obliged to admit the free passage of foreign merchantmen through its territorial maritime belt.</p> -<div class="footnote"><p><a name="Footnote_380_380" id="Footnote_380_380"></a><a href="#FNanchor_380_380"><span class="label">[380]</span></a> This is done, for instance, by Heffter (§ 43), Martens (§ -94), Nys (II. p. 271), and Hall (§ 42*); the latter speaks of the right +<div class="footnote"><p><a name="Footnote_380_380" id="Footnote_380_380"></a><a href="#FNanchor_380_380"><span class="label">[380]</span></a> This is done, for instance, by Heffter (§ 43), Martens (§ +94), Nys (II. p. 271), and Hall (§ 42*); the latter speaks of the right of innocent use of territorial seas as a servitude.</p></div> <p>That State servitudes are or may on occasions be of @@ -15345,8 +15304,8 @@ disputed whether a certain restriction upon territorial supremacy is or is not a State servitude.</p> <div class="footnote"><p><a name="Footnote_381_381" id="Footnote_381_381"></a><a href="#FNanchor_381_381"><span class="label">[381]</span></a> The conception of State servitudes -is rejected by Bulmerincq (§ -49), Gareis (§ 71), Liszt (§§ 8 and 19), +is rejected by Bulmerincq (§ +49), Gareis (§ 71), Liszt (§§ 8 and 19), Jellinek ("Allgemeine Staatslehre," p. 366).</p></div> @@ -15400,7 +15359,7 @@ in R.I. 2nd Ser. XIII. (1911), pp. 5-23, 131-157.<span class="pagenum"><a name=" <div class="sidenote"><p>Subjects of State Servitudes.</p></div> -<p>§ 204. Subjects of State servitudes are States only +<p>§ 204. Subjects of State servitudes are States only and exclusively, since State servitudes can exist between States only (<i>territorium dominans</i> and <i>territorium serviens</i>). Formerly some writers<a name="FNanchor_383_383" id="FNanchor_383_383"></a><a href="#Footnote_383_383" class="fnanchor">[383]</a> maintained that @@ -15412,7 +15371,7 @@ rights may be granted by a State to foreign individuals and corporations, such rights can never constitute State servitudes.</p> -<div class="footnote"><p><a name="Footnote_383_383" id="Footnote_383_383"></a><a href="#FNanchor_383_383"><span class="label">[383]</span></a> Bluntschli, § 353; Heffter, § 44.</p></div> +<div class="footnote"><p><a name="Footnote_383_383" id="Footnote_383_383"></a><a href="#FNanchor_383_383"><span class="label">[383]</span></a> Bluntschli, § 353; Heffter, § 44.</p></div> <p>On the other hand, every State can acquire and grant State servitudes, although some States may, in @@ -15432,7 +15391,7 @@ provided they have any international status at all.</p> <div class="sidenote"><p>Object of State Servitudes.</p></div> -<p>§ 205. The object of State servitudes is always the +<p>§ 205. The object of State servitudes is always the whole or a part of the territory of the State the territorial supremacy of which is restricted by any such servitude.<a name="FNanchor_384_384" id="FNanchor_384_384"></a><a href="#Footnote_384_384" class="fnanchor">[384]</a> Since the territory of a State includes not @@ -15445,7 +15404,7 @@ for its subjects to the fishery in the maritime belt of another State, or a right to lay telegraph cables through a foreign maritime belt, or a right to make and use a tunnel through a boundary mountain, and the like. -And should ever aërostation become so developed as +And should ever aërostation become so developed as to be of practical utility, a State servitude might be created through a State acquiring a perpetual right to send military aerial vehicles through the territorial @@ -15458,7 +15417,7 @@ territory.</p> Arbitration Tribunal, in 1910, in the case of the North Atlantic Coast Fisheries, that a State servitude conferred a sovereign right upon the State in favour of which it is established, was refuted - above in § <a href="#State_servitudes203">203</a>, + above in § <a href="#State_servitudes203">203</a>, p. 275.</p></div> <p>Since the object of State servitudes is the territory @@ -15485,14 +15444,14 @@ its territory is made to serve the interest of another State, and such restrictions are therefore State servitudes.<a name="FNanchor_389_389" id="FNanchor_389_389"></a><a href="#Footnote_389_389" class="fnanchor">[389]</a></p> <div class="footnote"><p><a name="Footnote_385_385" id="Footnote_385_385"></a><a href="#FNanchor_385_385"><span class="label">[385]</span></a> See, - for instance, Bluntschli, § 356.</p></div> + for instance, Bluntschli, § 356.</p></div> <div class="footnote"><p><a name="Footnote_386_386" id="Footnote_386_386"></a><a href="#FNanchor_386_386"><span class="label">[386]</span></a> Thus by article 32 of the peace treaty of Paris, 1856, and by the Convention of March 30, 1856, between Great Britain, France, and Russia, annexed to the peace treaty of Paris—see Martens, N.R.G. XV. pp. 780 and 788—Russia is prevented from fortifying the Aland Islands in the Baltic. See - below, § <a href="#According_to_the_principle522">522</a>, and Waultrin in R.G. XIV. pp. 517-533. + below, § <a href="#According_to_the_principle522">522</a>, and Waultrin in R.G. XIV. pp. 517-533. See also A.J. II. (1908), p. 397.</p></div> <div class="footnote"><p><a name="Footnote_387_387" id="Footnote_387_387"></a><a href="#FNanchor_387_387"><span class="label">[387]</span></a> Examples of such fishery servitudes are:— @@ -15500,7 +15459,7 @@ See also A.J. II. (1908), p. 397.</p></div> (<i>a</i>) The former French fishery rights in Newfoundland which were based on article 13 of the Treaty of Utrecht, 1713, and on the Treaty of Versailles, 1783. See the details regarding the Newfoundland Fishery -Dispute, in Phillimore, I. § 195; Clauss, pp. 17-31; Geffcken in R.I. +Dispute, in Phillimore, I. § 195; Clauss, pp. 17-31; Geffcken in R.I. XXII. p. 217; Brodhurst in <i>Law Magazine and Review</i>, XXIV. p. 67. The French literature on the question is quoted in Bonfils, No. 342, note 1. The dispute is now settled by France's renunciation of the privileges @@ -15517,10 +15476,10 @@ article 1 of the Treaty of 1818 which gave rise to disputes extending over a long period. The dispute is now settled by an award of the Hague Permanent Court of Arbitration given in September (1910). That the Court refused to recognise the conception of State servitudes, was pointed out -above, § <a href="#State_servitudes203">203</a>. See - above, § <a href="#State_servitudes203">203</a>, and the literature there quoted.</p></div> +above, § <a href="#State_servitudes203">203</a>. See + above, § <a href="#State_servitudes203">203</a>, and the literature there quoted.</p></div> -<div class="footnote"><p><a name="Footnote_388_388" id="Footnote_388_388"></a><a href="#FNanchor_388_388"><span class="label">[388]</span></a> Phillimore (I. § 283) quotes two interesting State +<div class="footnote"><p><a name="Footnote_388_388" id="Footnote_388_388"></a><a href="#FNanchor_388_388"><span class="label">[388]</span></a> Phillimore (I. § 283) quotes two interesting State servitudes which belong to the past. According to articles 4 and 10 of the Treaty of Utrecht, 1713, France was, in the interest of Great Britain, not to allow the Stuart Pretender to reside on French @@ -15529,14 +15488,14 @@ Moors and Jews to reside in Gibraltar.</p></div> <div class="footnote"><p><a name="Footnote_389_389" id="Footnote_389_389"></a><a href="#FNanchor_389_389"><span class="label">[389]</span></a> The controverted question whether neutralisation of a State creates a State servitude is answered by Clauss (p. 167) in the -affirmative, but by Ullmann (§ 99), correctly, I think, in the negative. +affirmative, but by Ullmann (§ 99), correctly, I think, in the negative. But a distinction must be drawn between neutralisation of a whole State and neutralisation of certain parts of a State. In the latter case a State servitude is indeed created.</p></div> <div class="sidenote"><p>Different kinds of State Servitudes.</p></div> -<p>§ 206. According to different qualities different kinds +<p>§ 206. According to different qualities different kinds of State servitudes must be distinguished.</p> <p>(1) Affirmative, active, or positive, are those servitudes @@ -15544,7 +15503,7 @@ which give the right to a State to perform certain acts on the territory of another State, such as to build and work a railway, to establish a custom-house, to let an armed force pass through a certain territory -(<i>droit d'étape</i>), or to keep troops in a certain fortress, +(<i>droit d'étape</i>), or to keep troops in a certain fortress, to use a port or an island as a coaling station, and the like.</p> @@ -15575,7 +15534,7 @@ like.</p> <div class="sidenote"><p>Validity of State Servitudes.</p></div> -<p>§ 207. <a name="Si207" id="Si207"></a>Since State servitudes, in contradistinction to +<p>§ 207. <a name="Si207" id="Si207"></a>Since State servitudes, in contradistinction to personal rights (rights <i>in personam</i>), are rights inherent to the object with which they are connected (rights <i>in rem</i>), they remain valid and may be exercised however @@ -15584,10 +15543,10 @@ may change. Therefore, if, after the creation of a State servitude, the part of the territory affected comes by subjugation or cession under the territorial supremacy of another State, such servitude remains in force. Thus, -when the Alsatian town of Hüningen became in 1871, +when the Alsatian town of Hüningen became in 1871, together with the whole of Alsace, German territory, the State servitude created by the Treaty of Paris, 1815, -that Hüningen should, in the interest of the Swiss canton +that Hüningen should, in the interest of the Swiss canton of Basle, never be fortified, was not extinguished.<a name="FNanchor_391_391" id="FNanchor_391_391"></a><a href="#Footnote_391_391" class="fnanchor">[391]</a> Thus, further, when in 1860 the former Sardinian provinces of Chablais and Faucigny became French, the<span class="pagenum"><a name="Page_280" id="Page_280">[Pg 280]</a></span> @@ -15611,13 +15570,13 @@ passage of troops?<a name="FNanchor_393_393" id="FNanchor_393_393"></a><a href=" <div class="footnote"><p><a name="Footnote_393_393" id="Footnote_393_393"></a><a href="#FNanchor_393_393"><span class="label">[393]</span></a> This question became practical when in 1900, during the South African war, Great Britain claimed, and Portugal was ready to grant, passage of troops through Portuguese territory in South Africa. - See below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#For_the_purpose_of306">vol. II. §§ 306</a> + See below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#For_the_purpose_of306">vol. II. §§ 306</a> and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#In_contradistinction323">323</a>; Clauss, pp. 212-217; and Dumas in R.G. XVI. (1909), pp. 289-316.</p></div> <div class="sidenote"><p>Extinction of State Servitudes.</p></div> -<p>§ 208. State servitudes are extinguished by agreement +<p>§ 208. State servitudes are extinguished by agreement between the States concerned, or by express or tacit<a name="FNanchor_394_394" id="FNanchor_394_394"></a><a href="#Footnote_394_394" class="fnanchor">[394]</a> renunciation on the part of the State in whose interest they were created. They are not, according to @@ -15640,14 +15599,14 @@ for the purpose of doing away with a State servitude proves only that such appeal has hitherto been unnecessary.</p> <div class="footnote"><p><a name="Footnote_394_394" id="Footnote_394_394"></a><a href="#FNanchor_394_394"><span class="label">[394]</span></a> See - Bluntschli, § 359 b. The opposition of Clauss (p. 219) + Bluntschli, § 359 b. The opposition of Clauss (p. 219) and others to this sound statement of Bluntschli's is not justified.</p></div> <div class="footnote"><p><a name="Footnote_395_395" id="Footnote_395_395"></a><a href="#FNanchor_395_395"><span class="label">[395]</span></a> See - below, § <a href="#Although_as_just_stated539">539</a>.</p></div> + below, § <a href="#Although_as_just_stated539">539</a>.</p></div> <div class="footnote"><p><a name="Footnote_396_396" id="Footnote_396_396"></a><a href="#FNanchor_396_396"><span class="label">[396]</span></a> See - Bluntschli, § 359 d, and Pradier-Fodéré, II. No. 845. + Bluntschli, § 359 d, and Pradier-Fodéré, II. No. 845. Clauss (p. 222) and others oppose this sound statement likewise.</p></div> @@ -15660,19 +15619,19 @@ Clauss (p. 222) and others oppose this sound statement likewise.</p></div> </h4> -<p class="indh1">Vattel, I. §§ 203-207—Hall, § 31—Westlake, I. pp. 84-116—Lawrence, §§ 74-78—Phillimore, -I. §§ 222-225—Twiss, I. §§ 113-139—Halleck, I. p. 154—Taylor, -§§ 217-228—Wheaton, §§ 161-163—Bluntschli, §§ 278-295—Hartmann, -§ 61—Heffter, § 69—Holtzendorff in Holtzendorff, II. pp. -252-255—Gareis, § 76—Liszt, § 10—Ullmann, § 92—Bonfils, No. 532—Despagnet, -No. 378—Pradier-Fodéré, II. Nos. 781-787—Mérignhac, II. -pp. 410-412—Rivier, I. § 12—Nys, II. pp. 1-3—Calvo, I. § 263—Fiore, -I. Nos. 838-840—Martens, I. § 90—Heimburger, "Der Erwerb der +<p class="indh1">Vattel, I. §§ 203-207—Hall, § 31—Westlake, I. pp. 84-116—Lawrence, §§ 74-78—Phillimore, +I. §§ 222-225—Twiss, I. §§ 113-139—Halleck, I. p. 154—Taylor, +§§ 217-228—Wheaton, §§ 161-163—Bluntschli, §§ 278-295—Hartmann, +§ 61—Heffter, § 69—Holtzendorff in Holtzendorff, II. pp. +252-255—Gareis, § 76—Liszt, § 10—Ullmann, § 92—Bonfils, No. 532—Despagnet, +No. 378—Pradier-Fodéré, II. Nos. 781-787—Mérignhac, II. +pp. 410-412—Rivier, I. § 12—Nys, II. pp. 1-3—Calvo, I. § 263—Fiore, +I. Nos. 838-840—Martens, I. § 90—Heimburger, "Der Erwerb der Gebietshoheit" (1888).</p> <div class="sidenote"><p>Who can acquire State Territory?</p></div> -<p>§ 209. <a name="Since_States_only209" id="Since_States_only209"></a>Since States only and exclusively are subjects +<p>§ 209. <a name="Since_States_only209" id="Since_States_only209"></a>Since States only and exclusively are subjects of the Law of Nations, it is obvious that, as far as the Law of Nations is concerned, States<a name="FNanchor_397_397" id="FNanchor_397_397"></a><a href="#Footnote_397_397" class="fnanchor">[397]</a> solely can acquire State territory. But the acquisition of territory @@ -15688,8 +15647,8 @@ rule, prevented by the Law of Nations from acquiring more territory than it already owns, unless some treaty arrangement precludes it from so doing. As regards the question whether a neutralised State is, by its neutralisation, prevented from acquiring territory, see - above, § <a href="#Without_thereby96">96</a>, and -below, § <a href="#The_object_of_cession215">215</a>.</p></div> + above, § <a href="#Without_thereby96">96</a>, and +below, § <a href="#The_object_of_cession215">215</a>.</p></div> <p>(1) Whenever a multitude of individuals, living on or entering into such a part of the surface of the globe @@ -15709,7 +15668,7 @@ it matters not how this territory was acquired before the recognition.</p> <div class="footnote"><p><a name="Footnote_398_398" id="Footnote_398_398"></a><a href="#FNanchor_398_398"><span class="label">[398]</span></a> See - above, § <a href="#As_the_basis_of_the_Law71">71</a>.</p></div> + above, § <a href="#As_the_basis_of_the_Law71">71</a>.</p></div> <p>(2) <a name="Not_essentially_different2of209" id="Not_essentially_different2of209"></a>Not essentially different is the case in which a private individual or a corporation acquires land with @@ -15731,7 +15690,7 @@ must ask a member of the Family of Nations to acknowledge the acquisition as made on its behalf.<a name="FNanchor_400_400" id="FNanchor_400_400"></a><a href="#Footnote_400_400" class="fnanchor">[400]</a></p> <div class="footnote"><p><a name="Footnote_399_399" id="Footnote_399_399"></a><a href="#FNanchor_399_399"><span class="label">[399]</span></a> See - above, § <a href="#The_former_Congo101">101</a>. The case of Sir James Brooke, who + above, § <a href="#The_former_Congo101">101</a>. The case of Sir James Brooke, who acquired in 1841 Sarawak, in North Borneo, and established an independent State there, of which he became the Sovereign, may also be cited. Sarawak is under English protectorate, but the successor of Sir @@ -15740,11 +15699,11 @@ James Brooke is still recognised as Sovereign.</p></div> <div class="footnote"><p><a name="Footnote_400_400" id="Footnote_400_400"></a><a href="#FNanchor_400_400"><span class="label">[400]</span></a> The matter is treated with great lucidity by Heimburger, pp. 44-77, who defends the opinion represented in the text against Sir Travers Twiss (I. Preface, p. x.; also in R.I. XV. p. 547, and XVI. p. -237) and other writers. See also Ullmann, § 93.</p></div> +237) and other writers. See also Ullmann, § 93.</p></div> <div class="sidenote"><p>Former Doctrine concerning Acquisition of Territory.</p></div> -<p>§ 210. No unanimity exists among writers on the +<p>§ 210. No unanimity exists among writers on the Law of Nations with regard to the modes of acquiring territory on the part of the members of the Family of Nations. The topic owes its controversial character to<span class="pagenum"><a name="Page_283" id="Page_283">[Pg 283]</a></span> @@ -15774,15 +15733,15 @@ Roman Law, although the latter's terminology and common-sense basis may be made use of.</p> <div class="footnote"><p><a name="Footnote_401_401" id="Footnote_401_401"></a><a href="#FNanchor_401_401"><span class="label">[401]</span></a> See - above, § <a href="#State_territory_is_that168">168</a>. The distinction between <i>imperium</i> and + above, § <a href="#State_territory_is_that168">168</a>. The distinction between <i>imperium</i> and <i>dominium</i> in Seneca's <i>dictum</i> that "omnia rex imperio possidet, -singuli dominio" was well known, and Grotius, II. c. 3, § 4, quotes it, +singuli dominio" was well known, and Grotius, II. c. 3, § 4, quotes it, but the consequences thereof were nevertheless not deduced. (See Westlake, Chapters, pp. 129-133, and Westlake, I. pp. 84-88.)</p></div> <div class="sidenote"><p>What Modes of Acquisition of Territory there are.</p></div> -<p>§ 211. States as living organisms grow and decrease +<p>§ 211. States as living organisms grow and decrease in territory. If the historical facts are taken into consideration, different reasons may be found to account for the exercise of sovereignty by a State over the @@ -15813,25 +15772,25 @@ practice of the States recognises cession, occupation, accretion, subjugation, and prescription as distinct modes of acquiring territory.</p> -<div class="footnote"><p><a name="Footnote_402_402" id="Footnote_402_402"></a><a href="#FNanchor_402_402"><span class="label">[402]</span></a> Thus Gareis (§ 70) recognises cession and occupation only, +<div class="footnote"><p><a name="Footnote_402_402" id="Footnote_402_402"></a><a href="#FNanchor_402_402"><span class="label">[402]</span></a> Thus Gareis (§ 70) recognises cession and occupation only, whereas Heimburger (pp. 106-110) and Holtzendorff (II. p. 254) recognise cession, occupation, and accretion only.</p></div> <div class="footnote"><p><a name="Footnote_403_403" id="Footnote_403_403"></a><a href="#FNanchor_403_403"><span class="label">[403]</span></a> See - below, § <a href="#The_only_form216">216</a>. Such alleged special modes are sale, + below, § <a href="#The_only_form216">216</a>. Such alleged special modes are sale, exchange, gift, marriage contract, testamentary disposition, and the like.</p></div> <div class="sidenote"><p>Original and derivative Modes of Acquisition.</p></div> -<p>§ 212. The modes of acquiring territory are correctly +<p>§ 212. The modes of acquiring territory are correctly divided according as the title they give is derived from the title of a prior owner State, or not. Cession is therefore a derivative mode of acquisition, whereas occupation, accretion, subjugation, and prescription are original modes.<a name="FNanchor_404_404" id="FNanchor_404_404"></a><a href="#Footnote_404_404" class="fnanchor">[404]</a></p> -<div class="footnote"><p><a name="Footnote_404_404" id="Footnote_404_404"></a><a href="#FNanchor_404_404"><span class="label">[404]</span></a> Lawrence (§ 74) enumerates conquest (subjugation) and +<div class="footnote"><p><a name="Footnote_404_404" id="Footnote_404_404"></a><a href="#FNanchor_404_404"><span class="label">[404]</span></a> Lawrence (§ 74) enumerates conquest (subjugation) and prescription besides cession as derivative modes. This is, however, merely the consequence of a peculiar conception of what is called a derivative mode of acquisition.<span class="pagenum"><a name="Page_285" id="Page_285">[Pg 285]</a></span></p></div> @@ -15845,19 +15804,19 @@ derivative mode of acquisition.<span class="pagenum"><a name="Page_285" id="Page </h4> -<p class="indh1">Hall, § 35—Lawrence, § 76—Phillimore, I. §§ 252-273—Twiss, I. § 138—Walker, -§ 10—Halleck, I. pp. 154-157—Taylor, § 227—Moore, I. §§ 83-86—Bluntschli, -§§ 285-287—Hartmann, § 61—Heffter, §§ 69 and 182—Holtzendorff -in Holtzendorff, II. pp. 269-274—Gareis, § 70—Liszt, § 10—Ullmann, -§§ 97-98—Bonfils, Nos. 364-371—Mérignhac, II. pp. 487-497—Despagnet, -Nos. 381-391—Pradier-Fodéré, II. Nos. 817-819—Rivier, I. -pp. 197-217—Nys, II. pp. 8-31—Calvo, I. § 266—Fiore, II. §§ 860-861, -and Code, No. 1053—Martens, I. § 91—Heimburger, "Der Erwerb der +<p class="indh1">Hall, § 35—Lawrence, § 76—Phillimore, I. §§ 252-273—Twiss, I. § 138—Walker, +§ 10—Halleck, I. pp. 154-157—Taylor, § 227—Moore, I. §§ 83-86—Bluntschli, +§§ 285-287—Hartmann, § 61—Heffter, §§ 69 and 182—Holtzendorff +in Holtzendorff, II. pp. 269-274—Gareis, § 70—Liszt, § 10—Ullmann, +§§ 97-98—Bonfils, Nos. 364-371—Mérignhac, II. pp. 487-497—Despagnet, +Nos. 381-391—Pradier-Fodéré, II. Nos. 817-819—Rivier, I. +pp. 197-217—Nys, II. pp. 8-31—Calvo, I. § 266—Fiore, II. §§ 860-861, +and Code, No. 1053—Martens, I. § 91—Heimburger, "Der Erwerb der Gebietshoheit" (1888), pp. 110-120.</p> <div class="sidenote"><p>Conception of cession of State Territory.</p></div> -<p>§ 213. Cession of State territory is the transfer of +<p>§ 213. Cession of State territory is the transfer of sovereignty over State territory by the owner State to another State. There is no doubt whatever that such cession is possible according to the Law of Nations, and @@ -15876,17 +15835,17 @@ heads of States or Governments as violate these restrictions are not binding.<a name="FNanchor_407_407" id="FNanchor_407_407"></a><a href="#Footnote_407_407" class="fnanchor">[407]</a></p> <div class="footnote"><p><a name="Footnote_405_405" id="Footnote_405_405"></a><a href="#FNanchor_405_405"><span class="label">[405]</span></a> See - above, § <a href="#State_territory_is_that168">168</a>.</p></div> + above, § <a href="#State_territory_is_that168">168</a>.</p></div> <div class="footnote"><p><a name="Footnote_406_406" id="Footnote_406_406"></a><a href="#FNanchor_406_406"><span class="label">[406]</span></a> See - above, § <a href="#If_the_Law21">21</a>.</p></div> + above, § <a href="#If_the_Law21">21</a>.</p></div> <div class="footnote"><p><a name="Footnote_407_407" id="Footnote_407_407"></a><a href="#FNanchor_407_407"><span class="label">[407]</span></a> See - below, § <a href="#Al497">497</a>.</p></div> + below, § <a href="#Al497">497</a>.</p></div> <div class="sidenote"><p>Subjects of cession.</p></div> -<p>§ 214. <a name="Since_cession_is214" id="Since_cession_is214"></a>Since cession is a bilateral transaction, it has +<p>§ 214. <a name="Since_cession_is214" id="Since_cession_is214"></a>Since cession is a bilateral transaction, it has two subjects—namely, the ceding and the acquiring State. Both subjects must be States, and only those cessions in which both subjects are States concern @@ -15903,18 +15862,18 @@ since such State becomes through the treaty of cession in some respects a member of that family.<a name="FNanchor_410_410" id="FNanchor_410_410"></a><a href="#Footnote_410_410" class="fnanchor">[410]</a></p> <div class="footnote"><p><a name="Footnote_408_408" id="Footnote_408_408"></a><a href="#FNanchor_408_408"><span class="label">[408]</span></a> See - above, § <a href="#Not_essentially_different2of209">209, No. 2</a>.</p></div> + above, § <a href="#Not_essentially_different2of209">209, No. 2</a>.</p></div> <div class="footnote"><p><a name="Footnote_409_409" id="Footnote_409_409"></a><a href="#FNanchor_409_409"><span class="label">[409]</span></a> See - below, §§ <a href="#Only_such_territory221">221</a> + below, §§ <a href="#Only_such_territory221">221</a> and <a href="#Theory_and_practice222">222</a>.</p></div> <div class="footnote"><p><a name="Footnote_410_410" id="Footnote_410_410"></a><a href="#FNanchor_410_410"><span class="label">[410]</span></a> See - above, § <a href="#Doubtful_is_the103">103</a>.</p></div> + above, § <a href="#Doubtful_is_the103">103</a>.</p></div> <div class="sidenote"><p>Object of cession.</p></div> -<p>§ 215. <a name="The_object_of_cession215" id="The_object_of_cession215"></a>The object of cession is sovereignty over such +<p>§ 215. <a name="The_object_of_cession215" id="The_object_of_cession215"></a>The object of cession is sovereignty over such territory as has hitherto already belonged to another State. As far as the Law of Nations is concerned, every State as a rule can cede a part of its territory to another @@ -15925,7 +15884,7 @@ maritime belt, are inalienable appurtenances of the land, they cannot be ceded without a piece of land.<a name="FNanchor_411_411" id="FNanchor_411_411"></a><a href="#Footnote_411_411" class="fnanchor">[411]</a></p> <div class="footnote"><p><a name="Footnote_411_411" id="Footnote_411_411"></a><a href="#FNanchor_411_411"><span class="label">[411]</span></a> See - above, §§ <a href="#It_should_be_mentioned175">175</a> + above, §§ <a href="#It_should_be_mentioned175">175</a> and <a href="#Maritime_belt185">185</a>.</p></div> <p>The controverted question whether permanently @@ -15945,14 +15904,14 @@ which exercised a protectorate over these islands.</p> <div class="footnote"><p><a name="Footnote_412_412" id="Footnote_412_412"></a><a href="#FNanchor_412_412"><span class="label">[412]</span></a> Thus in 1860 Sardinia ceded her neutralised provinces of Chablais and Faucigny to France. See - above, §207.</p></div> + above, §207.</p></div> <div class="footnote"><p><a name="Footnote_413_413" id="Footnote_413_413"></a><a href="#FNanchor_413_413"><span class="label">[413]</span></a> See - above, § <a href="#Without_thereby96">96</a>, and the literature there quoted.</p></div> + above, § <a href="#Without_thereby96">96</a>, and the literature there quoted.</p></div> <div class="sidenote"><p>Form of cession.</p></div> -<p>§ 216. <a name="The_only_form216" id="The_only_form216"></a>The only form in which a cession can be effected<span class="pagenum"><a name="Page_287" id="Page_287">[Pg 287]</a></span> +<p>§ 216. <a name="The_only_form216" id="The_only_form216"></a>The only form in which a cession can be effected<span class="pagenum"><a name="Page_287" id="Page_287">[Pg 287]</a></span> is an agreement embodied in a treaty between the ceding and the acquiring State. Such treaty may be the outcome of peaceable negotiations or of war, and the @@ -15999,17 +15958,17 @@ leased in 1898 Kiaochau to Germany,<a name="FNanchor_416_416" id="FNanchor_416_4 and the land opposite the island of Hong Kong to Great Britain,<a name="FNanchor_417_417" id="FNanchor_417_417"></a><a href="#Footnote_417_417" class="fnanchor">[417]</a> and Port Arthur to Russia.</p> -<div class="footnote"><p><a name="Footnote_414_414" id="Footnote_414_414"></a><a href="#FNanchor_414_414"><span class="label">[414]</span></a> Phillimore, I. §§ 274-276, enumerates many examples of such +<div class="footnote"><p><a name="Footnote_414_414" id="Footnote_414_414"></a><a href="#FNanchor_414_414"><span class="label">[414]</span></a> Phillimore, I. §§ 274-276, enumerates many examples of such cession. The question whether the monarch of a State under absolute government could nowadays by a testamentary disposition cede territory to another State must, I believe, be answered in the affirmative.</p></div> <div class="footnote"><p><a name="Footnote_415_415" id="Footnote_415_415"></a><a href="#FNanchor_415_415"><span class="label">[415]</span></a> See - above, § <a href="#The_third_case3of171">171, No. 3</a>. Cession may also take place under + above, § <a href="#The_third_case3of171">171, No. 3</a>. Cession may also take place under the disguise of an agreement according to which territory comes under the "administration" or under the "use, occupation, and control" of a foreign State. See - above, § <a href="#The_second_case2of171">171, Nos. 2</a> + above, § <a href="#The_second_case2of171">171, Nos. 2</a> and <a href="#The_fourth_case4of171">4</a>.</p></div> <div class="footnote"><p><a name="Footnote_416_416" id="Footnote_416_416"></a><a href="#FNanchor_416_416"><span class="label">[416]</span></a> See @@ -16027,11 +15986,11 @@ transit cum suo onere</i>, and <i>Nemo plus juris transferre potest, quam ipse habet</i>).</p> <div class="footnote"><p><a name="Footnote_418_418" id="Footnote_418_418"></a><a href="#FNanchor_418_418"><span class="label">[418]</span></a> How far a succession of States takes place in the case of -cession of territory has been discussed above, § 84.</p></div> +cession of territory has been discussed above, § 84.</p></div> <div class="sidenote"><p>Tradition of the ceded Territory.</p></div> -<p>§ 217. The treaty of cession must be followed by +<p>§ 217. The treaty of cession must be followed by actual tradition of the territory to the new owner State, unless such territory is already occupied by the new owner, as in the case where the cession is the outcome @@ -16056,7 +16015,7 @@ actually taken possession of it.</p></div> <div class="sidenote"><p>Veto of third Powers.</p></div> -<p>§ 218. As a rule, no third Power has the right of +<p>§ 218. As a rule, no third Power has the right of <i>veto</i> with regard to a cession of territory. Exceptionally, however, such right may exist. It may be that a third Power has by a previous treaty acquired a right @@ -16081,18 +16040,18 @@ and the cession was not effected, but Luxemburg became permanently neutralised.</p> <div class="footnote"><p><a name="Footnote_421_421" id="Footnote_421_421"></a><a href="#FNanchor_421_421"><span class="label">[421]</span></a> See - above. § <a href="#The_object_of_cession215">215</a>.</p></div> + above. § <a href="#The_object_of_cession215">215</a>.</p></div> <div class="footnote"><p><a name="Footnote_422_422" id="Footnote_422_422"></a><a href="#FNanchor_422_422"><span class="label">[422]</span></a> See - above, §§ <a href="#Since_States_only209">209</a> + above, §§ <a href="#Since_States_only209">209</a> and <a href="#The_object_of_cession215">215</a>.</p></div> <div class="footnote"><p><a name="Footnote_423_423" id="Footnote_423_423"></a><a href="#FNanchor_423_423"><span class="label">[423]</span></a> See - above, § <a href="#In_contradistinction136">136</a>.</p></div> + above, § <a href="#In_contradistinction136">136</a>.</p></div> <div class="sidenote"><p>Plebiscite and option.</p></div> -<p>§ 219. <a name="As_the_object219" id="As_the_object219"></a>As the object of cession is sovereignty over +<p>§ 219. <a name="As_the_object219" id="As_the_object219"></a>As the object of cession is sovereignty over the ceded territory, all such individuals domiciled thereon as are subjects of the ceding State become <i>ipso facto</i> by the cession subjects<a name="FNanchor_424_424" id="FNanchor_424_424"></a><a href="#Footnote_424_424" class="fnanchor">[424]</a> of the acquiring State. The hardship @@ -16114,20 +16073,20 @@ cases they will not allow it.</p> <div class="footnote"><p><a name="Footnote_424_424" id="Footnote_424_424"></a><a href="#FNanchor_424_424"><span class="label">[424]</span></a> See Keith, "The Theory of State Succession, &c." (1907), -pp. 42-45; Cogordan, "La Nationalité" (1890), pp. 317-400; Moore, III. § +pp. 42-45; Cogordan, "La Nationalité" (1890), pp. 317-400; Moore, III. § 379.</p></div> <div class="footnote"><p><a name="Footnote_425_425" id="Footnote_425_425"></a><a href="#FNanchor_425_425"><span class="label">[425]</span></a> See Stoerk, "Option und Plebiscite" (1879); Rivier, I. p. 204; Freudenthal, "Die Volksabstimmung bei Gebietsabtretungen und -Eroberungen" (1891); Bonfils, No. 570; Despagnet, No. 391; Ullmann, § +Eroberungen" (1891); Bonfils, No. 570; Despagnet, No. 391; Ullmann, § 97.</p></div> <div class="footnote"><p><a name="Footnote_426_426" id="Footnote_426_426"></a><a href="#FNanchor_426_426"><span class="label">[426]</span></a> See Rivier, I. p. 210, where all these treaties are enumerated.</p></div> -<div class="footnote"><p><a name="Footnote_427_427" id="Footnote_427_427"></a><a href="#FNanchor_427_427"><span class="label">[427]</span></a> Although Grotius (II. c. VI. § 4) taught this to be +<div class="footnote"><p><a name="Footnote_427_427" id="Footnote_427_427"></a><a href="#FNanchor_427_427"><span class="label">[427]</span></a> Although Grotius (II. c. VI. § 4) taught this to be necessary.</p></div> <p>The hardship of the inhabitants being handed over @@ -16165,7 +16124,7 @@ but domiciled at the time of the cession in Great Britain, would not have lost their French citizenship through the cession to Germany but for article 1, part 2, of the additional treaty of Dec. 11, 1871, to the Peace Treaty of Frankfort. (Martens, N.R.G. XX. p. 847.) See Bonfils, -No. 427, and Cogordan, "La Nationalité, &c." (1890), p. 361.</p></div> +No. 427, and Cogordan, "La Nationalité, &c." (1890), p. 361.</p></div> @@ -16175,25 +16134,25 @@ No. 427, and Cogordan, "La Nationalité, &c." (1890), p. 361.</p></div> </h4> -<p class="indh1">Hall, §§ 32-34—Westlake, I. pp. 96-111, 119-133—Lawrence, § 74—Phillimore, -I. §§ 236-250—Twiss, I. §§ 118-126—Halleck, I. p. 154—Taylor, §§ 221-224—Walker, -§ 9—Wharton, I. § 2—Moore, I. §§ 80-81—Wheaton, §§ -165-174—Bluntschli, §§ 278-283—Hartmann, § 61—Heffter, § 70—Holtzendorff -in Holtzendorff, II. pp. 255-266—Gareis, § 70—Liszt, § 10—Ullmann, -§§ 93-96—Bonfils, Nos. 536-563—Despagnet, Nos. 329-399—Mérignhac, -II. pp. 419-487—Pradier-Fodéré, II. Nos. 784-802—Rivier, -I. pp. 188-197—Nys, II. pp. 47-108—Calvo, I. §§ 266-282—Fiore, II. -Nos. 841-849, and Code, Nos. 1054-1067—Martens, I. § 90—Tartarin, -"Traité de l'occupation" (1873)—Westlake, Chapters, pp. 155-187—Heimburger, +<p class="indh1">Hall, §§ 32-34—Westlake, I. pp. 96-111, 119-133—Lawrence, § 74—Phillimore, +I. §§ 236-250—Twiss, I. §§ 118-126—Halleck, I. p. 154—Taylor, §§ 221-224—Walker, +§ 9—Wharton, I. § 2—Moore, I. §§ 80-81—Wheaton, §§ +165-174—Bluntschli, §§ 278-283—Hartmann, § 61—Heffter, § 70—Holtzendorff +in Holtzendorff, II. pp. 255-266—Gareis, § 70—Liszt, § 10—Ullmann, +§§ 93-96—Bonfils, Nos. 536-563—Despagnet, Nos. 329-399—Mérignhac, +II. pp. 419-487—Pradier-Fodéré, II. Nos. 784-802—Rivier, +I. pp. 188-197—Nys, II. pp. 47-108—Calvo, I. §§ 266-282—Fiore, II. +Nos. 841-849, and Code, Nos. 1054-1067—Martens, I. § 90—Tartarin, +"Traité de l'occupation" (1873)—Westlake, Chapters, pp. 155-187—Heimburger, "Der Erwerb der Gebietshoheit" (1888), pp. 103-155—Salomon, -"L'occupation des territoires sans maître" (1889)—Jèze, -"Étude théorique et pratique sur l'occupation, &c." (1896)—Macdonell +"L'occupation des territoires sans maître" (1889)—Jèze, +"Étude théorique et pratique sur l'occupation, &c." (1896)—Macdonell in the <i>Journal of the Society of Comparative Legislation</i>, New Series, I. (1899), pp. 276-286—Waultrin in R.G. XV. (1908), pp. 78, 185, 401.</p> <div class="sidenote"><p>Conception of Occupation.</p></div> -<p>§ 220. Occupation is the act of appropriation by a +<p>§ 220. Occupation is the act of appropriation by a State through which it intentionally acquires sovereignty over such territory as is at the time not under the sovereignty of another State. Occupation as a mode @@ -16211,14 +16170,14 @@ that is, it must be performed in the service of a State, or it must be acknowledged by a State after its performance.</p> <div class="footnote"><p><a name="Footnote_429_429" id="Footnote_429_429"></a><a href="#FNanchor_429_429"><span class="label">[429]</span></a> See - below, § <a href="#Conquest_is236">236</a>.</p></div> + below, § <a href="#Conquest_is236">236</a>.</p></div> <div class="footnote"><p><a name="Footnote_430_430" id="Footnote_430_430"></a><a href="#FNanchor_430_430"><span class="label">[430]</span></a> See - above, § <a href="#Since_States_only209">209</a>.</p></div> + above, § <a href="#Since_States_only209">209</a>.</p></div> <div class="sidenote"><p>Object of Occupation.</p></div> -<p>§ 221. <a name="Only_such_territory221" id="Only_such_territory221"></a>Only such territory can be the object of +<p>§ 221. <a name="Only_such_territory221" id="Only_such_territory221"></a>Only such territory can be the object of occupation as is no State's land, whether entirely uninhabited, as <i>e.g.</i> an island, or inhabited by natives whose community is not to be considered as a State. @@ -16237,10 +16196,10 @@ abandoned, is a possible object for occupation on the part of another State.<a name="FNanchor_432_432" id="FNanchor_432_432"></a><a href="#Footnote_432_432" class="fnanchor">[432]</a></p> <div class="footnote"><p><a name="Footnote_431_431" id="Footnote_431_431"></a><a href="#FNanchor_431_431"><span class="label">[431]</span></a> See - above, § <a href="#Since_cession_is214">214</a>.</p></div> + above, § <a href="#Since_cession_is214">214</a>.</p></div> <div class="footnote"><p><a name="Footnote_432_432" id="Footnote_432_432"></a><a href="#FNanchor_432_432"><span class="label">[432]</span></a> See - below, §§ <a href="#As_soon_as228">228</a> + below, §§ <a href="#As_soon_as228">228</a> and <a href="#Dereliction_as_a_mode247">247</a>.</p></div> <p>Although the Open Sea is free and is, therefore, not @@ -16249,7 +16208,7 @@ Open Sea may become the object of occupation through driving mines and piercing tunnels from the coast.<a name="FNanchor_434_434" id="FNanchor_434_434"></a><a href="#Footnote_434_434" class="fnanchor">[434]</a></p> <div class="footnote"><p><a name="Footnote_433_433" id="Footnote_433_433"></a><a href="#FNanchor_433_433"><span class="label">[433]</span></a> See - below, §§ <a href="#The_subsoil287c">287<i>c</i></a> + below, §§ <a href="#The_subsoil287c">287<i>c</i></a> and <a href="#Since_there_is287d">287<i>d</i></a>.</p></div> <div class="footnote"><p><a name="Footnote_434_434" id="Footnote_434_434"></a><a href="#FNanchor_434_434"><span class="label">[434]</span></a> When, in 1909, Admiral Peary reached the North Pole and @@ -16261,7 +16220,7 @@ pp. 265-275.</p></div> <div class="sidenote"><p>Occupation how effected.</p></div> -<p>§ 222. <a name="Theory_and_practice222" id="Theory_and_practice222"></a>Theory and practice agree nowadays upon the +<p>§ 222. <a name="Theory_and_practice222" id="Theory_and_practice222"></a>Theory and practice agree nowadays upon the rule that occupation is effected through taking possession of and establishing an administration over the territory in the name of and for the acquiring State.<span class="pagenum"><a name="Page_293" id="Page_293">[Pg 293]</a></span> @@ -16298,7 +16257,7 @@ respective territory would be acquired by cession, and not by occupation. But although it is nowadays quite usual to obtain a cession from a native chief, this is, nevertheless, not cession in the technical sense of the term in International Law; see - above, § <a href="#Since_cession_is214">214</a>.</p></div> + above, § <a href="#Since_cession_is214">214</a>.</p></div> <p>(2) After having, in the aforementioned way, taken possession of a territory, the possessor must establish @@ -16312,7 +16271,7 @@ sovereignty of a State is exercised over the territory.</p> <div class="sidenote"><p>Inchoate Title of Discovery.</p></div> -<p>§ 223. In former times the two conditions of possession +<p>§ 223. In former times the two conditions of possession and administration which now make the occupation effective were not considered necessary for the acquisition of territory through occupation. In the age of @@ -16340,13 +16299,13 @@ title perishes, and any other State can now acquire the territory by means of an effective occupation.</p> <div class="footnote"><p><a name="Footnote_436_436" id="Footnote_436_436"></a><a href="#FNanchor_436_436"><span class="label">[436]</span></a> See - Vattel, I. § 208.</p></div> + Vattel, I. § 208.</p></div> -<div class="footnote"><p><a name="Footnote_437_437" id="Footnote_437_437"></a><a href="#FNanchor_437_437"><span class="label">[437]</span></a> Thus Hall, § 32.</p></div> +<div class="footnote"><p><a name="Footnote_437_437" id="Footnote_437_437"></a><a href="#FNanchor_437_437"><span class="label">[437]</span></a> Thus Hall, § 32.</p></div> <div class="sidenote"><p>Notification of Occupation to other Powers.</p></div> -<p>§ 224. No rule of the Law of Nations exists which +<p>§ 224. No rule of the Law of Nations exists which makes notification of occupation to other Powers a necessary condition of its validity. But as regards all future occupations on the <i>African</i> coast the Powers @@ -16364,7 +16323,7 @@ African coast to occupations everywhere else.</p> <div class="sidenote"><p>Extent of Occupation.</p></div> -<p>§ 225. Since an occupation is valid only if effective, +<p>§ 225. Since an occupation is valid only if effective, it is obvious that the extent of an occupation ought only to reach over so much territory as is effectively occupied. In practice, however, the interested States @@ -16412,24 +16371,24 @@ on the basis of strict law; they must nearly always be compromised, whether by a treaty or by arbitration.<a name="FNanchor_442_442" id="FNanchor_442_442"></a><a href="#Footnote_442_442" class="fnanchor">[442]</a></p> <div class="footnote"><p><a name="Footnote_439_439" id="Footnote_439_439"></a><a href="#FNanchor_439_439"><span class="label">[439]</span></a> Claim of the United States in the Oregon Boundary dispute -(1827) with Great Britain. See Twiss, I. §§ 126 and 127, and his "The -Oregon Question Examined" (1846); Phillimore, I. § 250; Hall, § 34.</p></div> +(1827) with Great Britain. See Twiss, I. §§ 126 and 127, and his "The +Oregon Question Examined" (1846); Phillimore, I. § 250; Hall, § 34.</p></div> <div class="footnote"><p><a name="Footnote_440_440" id="Footnote_440_440"></a><a href="#FNanchor_440_440"><span class="label">[440]</span></a> Claim of the United States in their dispute with Spain -concerning the boundary of Louisiana (1803), approved of by Twiss, I. § +concerning the boundary of Louisiana (1803), approved of by Twiss, I. § 125.</p></div> <div class="footnote"><p><a name="Footnote_441_441" id="Footnote_441_441"></a><a href="#FNanchor_441_441"><span class="label">[441]</span></a> This is the so-called "right of contiguity," approved of by -Twiss, I. §§ 124 and 131.</p></div> +Twiss, I. §§ 124 and 131.</p></div> <div class="footnote"><p><a name="Footnote_442_442" id="Footnote_442_442"></a><a href="#FNanchor_442_442"><span class="label">[442]</span></a> The Institute of International Law, in 1887, at its meeting -in Lausanne, adopted a "Projet de déclaration internationale relatif aux +in Lausanne, adopted a "Projet de déclaration internationale relatif aux occupations de territoires," comprising ten articles; see Annuaire, X. p. 201.</p></div> <div class="sidenote"><p>Protectorate as Precursor of Occupation.</p></div> -<p>§ 226. <a name="The_growing_desire_to226" id="The_growing_desire_to226"></a>The growing desire to acquire vast territories +<p>§ 226. <a name="The_growing_desire_to226" id="The_growing_desire_to226"></a>The growing desire to acquire vast territories as colonies on the part of States unable at once to occupy effectively such territories has, in the second half of the nineteenth century, led to the contracting @@ -16456,15 +16415,15 @@ inchoate title, and are preparations and precursors of future occupations.</p> <div class="footnote"><p><a name="Footnote_443_443" id="Footnote_443_443"></a><a href="#FNanchor_443_443"><span class="label">[443]</span></a> See - above, §§ <a href="#Legally_and_materially92">92</a> + above, §§ <a href="#Legally_and_materially92">92</a> and <a href="#The_position_of_a_State93">93</a>.</p></div> <div class="footnote"><p><a name="Footnote_444_444" id="Footnote_444_444"></a><a href="#FNanchor_444_444"><span class="label">[444]</span></a> See - above, § <a href="#Outside_Europe_there_are94">94</a>.</p></div> + above, § <a href="#Outside_Europe_there_are94">94</a>.</p></div> <div class="sidenote"><p>Spheres of influence.</p></div> -<p>§ 227. The uncertainty of the extent of an occupation +<p>§ 227. The uncertainty of the extent of an occupation and the tendency of every colonising State to extend its occupation constantly and gradually into the interior, the "Hinterland," of an occupied territory, @@ -16497,12 +16456,12 @@ in 1886 and 1890, and with France<a name="FNanchor_448_448" id="FNanchor_448_448 <div class="footnote"><p><a name="Footnote_449_449" id="Footnote_449_449"></a><a href="#FNanchor_449_449"><span class="label">[449]</span></a> Protectorates and Spheres of Influence are exhaustively treated in Hall, "Foreign Powers and Jurisdiction of the British Crown," -§§ 92-100; but Hall fails to distinguish between protectorates over +§§ 92-100; but Hall fails to distinguish between protectorates over Eastern States and protectorates over native tribes.<span class="pagenum"><a name="Page_298" id="Page_298">[Pg 298]</a></span></p></div> <div class="sidenote"><p>Consequences of Occupation.</p></div> -<p>§ 228. <a name="As_soon_as228" id="As_soon_as228"></a>As soon as a territory is occupied by a member +<p>§ 228. <a name="As_soon_as228" id="As_soon_as228"></a>As soon as a territory is occupied by a member of the Family of Nations, it comes within the sphere of the Law of Nations, because it constitutes a portion of the territory of a subject of International Law. No @@ -16520,7 +16479,7 @@ against neighbouring territories, and has eventually to punish them for such acts.</p> <div class="footnote"><p><a name="Footnote_450_450" id="Footnote_450_450"></a><a href="#FNanchor_450_450"><span class="label">[450]</span></a> See - below, § <a href="#Dereliction_as_a_mode247">247</a>.</p></div> + below, § <a href="#Dereliction_as_a_mode247">247</a>.</p></div> <p>A question of some importance is how far occupation affects private property of the inhabitants of the occupied @@ -16550,20 +16509,20 @@ land, such title is not based on International Law.<span class="pagenum"><a name <span class="smaller">ACCRETION</span> </h4> -<p class="indh1">Grotius, II. c. 8, §§ 8-16—Hall, § 37—Lawrence, § 75—Phillimore, I. §§ 240-241—Twiss, -I. §§ 131 and 154—Moore, I. § 82—Bluntschli, §§ 294-295—Hartmann, -§ 61—Heffter, § 69—Holtzendorff in Holtzendorff, II. pp. 266-268—Gareis, -§ 20—Liszt, § 10—Ullmann, § 92—Bonfils, No. 533—Despagnet, -No. 387—Pradier-Fodéré, II. Nos. 803-816—Rivier, I. pp. 179-180—Nys, -II. pp. 3-7—Calvo, I. § 266—Fiore, II. No. 852, and Code, Nos. 1068-1070—Martens, -I. § 90—Heimburger, "Der Erwerb der Gebietshoheit" +<p class="indh1">Grotius, II. c. 8, §§ 8-16—Hall, § 37—Lawrence, § 75—Phillimore, I. §§ 240-241—Twiss, +I. §§ 131 and 154—Moore, I. § 82—Bluntschli, §§ 294-295—Hartmann, +§ 61—Heffter, § 69—Holtzendorff in Holtzendorff, II. pp. 266-268—Gareis, +§ 20—Liszt, § 10—Ullmann, § 92—Bonfils, No. 533—Despagnet, +No. 387—Pradier-Fodéré, II. Nos. 803-816—Rivier, I. pp. 179-180—Nys, +II. pp. 3-7—Calvo, I. § 266—Fiore, II. No. 852, and Code, Nos. 1068-1070—Martens, +I. § 90—Heimburger, "Der Erwerb der Gebietshoheit" (1888), p. 107.</p> <div class="sidenote"><p>Conception of Accretion.</p></div> -<p>§ 229. Accretion is the name for the increase of land +<p>§ 229. Accretion is the name for the increase of land through new formations. Such new formations may be a modification only of the existing State territory, as, for instance, where an island rises within such river @@ -16583,7 +16542,7 @@ as a mode of acquiring territory.</p> <div class="sidenote"><p>Different kinds of Accretion.</p></div> -<p>§ 230. New formations through accretion may be +<p>§ 230. New formations through accretion may be artificial or natural. They are artificial if they are the outcome of human work. They are natural if they are produced through operation of nature. And @@ -16593,7 +16552,7 @@ new-born islands, and abandoned river beds.</p> <div class="sidenote"><p>Artificial Formations.</p></div> -<p>§ 231. Artificial formations are embankments, breakwaters, +<p>§ 231. Artificial formations are embankments, breakwaters, dykes, and the like, built along the river or the coast-line of the sea. As such artificial new formations<span class="pagenum"><a name="Page_300" id="Page_300">[Pg 300]</a></span> along the bank of a boundary river may more or less @@ -16611,11 +16570,11 @@ since the extent of the at least three miles wide maritime belt is now to be measured from the extended shore.</p> <div class="footnote"><p><a name="Footnote_451_451" id="Footnote_451_451"></a><a href="#FNanchor_451_451"><span class="label">[451]</span></a> See - above, § <a href="#Just_like_independence127">127</a>.</p></div> + above, § <a href="#Just_like_independence127">127</a>.</p></div> <div class="sidenote"><p>Alluvions.</p></div> -<p>§ 232. Alluvion is the name for an accession of land +<p>§ 232. Alluvion is the name for an accession of land washed up on the sea-shore or on a river-bank by the waters. Such accession is as a rule produced by a slow and gradual process, but sometimes also through a @@ -16635,11 +16594,11 @@ or through the mid-channel,<a name="FNanchor_452_452" id="FNanchor_452_452"></a> into former territory of the other riparian State.</p> <div class="footnote"><p><a name="Footnote_452_452" id="Footnote_452_452"></a><a href="#FNanchor_452_452"><span class="label">[452]</span></a> See - above, § <a href="#Natural_boundaries199">199</a>, No. 1.</p></div> + above, § <a href="#Natural_boundaries199">199</a>, No. 1.</p></div> <div class="sidenote"><p>Deltas.</p></div> -<p>§ 233. Similar to alluvions are Deltas. Delta is the +<p>§ 233. Similar to alluvions are Deltas. Delta is the name for a tract of land at the mouth of a river shaped like the Greek letter Δ, which land owes its existence to a gradual deposit by the river of sand, stones, and<span class="pagenum"><a name="Page_301" id="Page_301">[Pg 301]</a></span> @@ -16657,7 +16616,7 @@ from the shore of the Delta.</p> <div class="sidenote"><p>New-born Islands.</p></div> -<p>§ 234. <a name="The_same_and_other234" id="The_same_and_other234"></a>The same and other natural processes which +<p>§ 234. <a name="The_same_and_other234" id="The_same_and_other234"></a>The same and other natural processes which create alluvions on the shore and banks, and Deltas at the mouths of rivers, lead to the birth of new islands. If they rise on the High Seas outside the territorial maritime @@ -16696,7 +16655,7 @@ of earth and trees drifted down into the sea.</p> <div class="sidenote"><p>Abandoned Riverbeds.</p></div> -<p>§ 235. <a name="It_happens_sometimes235" id="It_happens_sometimes235"></a>It happens sometimes that a river abandons +<p>§ 235. <a name="It_happens_sometimes235" id="It_happens_sometimes235"></a>It happens sometimes that a river abandons its bed entirely or dries up altogether. If such river was a boundary river, the abandoned bed is now the natural boundary. But often the old boundary line @@ -16715,19 +16674,19 @@ that of the other diminished.</p> </h4> -<p class="indh1">Vattel, III. §§ 199-203—Hall, §§ 204-205—Lawrence, § 77—Halleck, II. pp. -467-498—Taylor, § 220—Walker, § 11—Wheaton, § 165—Moore, I. § 87—Bluntschli, -§§ 287-289, 701-702—Heffter, § 178—Liszt, § 10—Ullmann, -§§ 92 and 97—Bonfils, No. 535—Despagnet, Nos. 387-390—Rivier, I. pp. -181-182, II. 436-441—Nys, II. pp. 40-46—Calvo, V. §§ 3117, 3118—Fiore, -II. No. 863, III. No. 1693, and Code, Nos. 1078-1081—Martens, I. § 91—Holtzendorff, +<p class="indh1">Vattel, III. §§ 199-203—Hall, §§ 204-205—Lawrence, § 77—Halleck, II. pp. +467-498—Taylor, § 220—Walker, § 11—Wheaton, § 165—Moore, I. § 87—Bluntschli, +§§ 287-289, 701-702—Heffter, § 178—Liszt, § 10—Ullmann, +§§ 92 and 97—Bonfils, No. 535—Despagnet, Nos. 387-390—Rivier, I. pp. +181-182, II. 436-441—Nys, II. pp. 40-46—Calvo, V. §§ 3117, 3118—Fiore, +II. No. 863, III. No. 1693, and Code, Nos. 1078-1081—Martens, I. § 91—Holtzendorff, "Eroberung und Eroberungsrecht" (1871)—Heimburger, "Der Erwerb der Gebietshoheit" (1888), pp. 121-132—Westlake in <i>The Law Quarterly Review</i>, XVII. (1901), p. 392.</p> <div class="sidenote"><p>Conception of Conquest and of Subjugation.</p></div> -<p>§ 236. <a name="Conquest_is236" id="Conquest_is236"></a>Conquest is the taking possession of enemy +<p>§ 236. <a name="Conquest_is236" id="Conquest_is236"></a>Conquest is the taking possession of enemy territory through military force in time of war. Conquest alone does not <i>ipso facto</i> make the conquering State the sovereign of the conquered territory, although @@ -16751,15 +16710,15 @@ but cession.<a name="FNanchor_455_455" id="FNanchor_455_455"></a><a href="#Footn <div class="footnote"><p><a name="Footnote_454_454" id="Footnote_454_454"></a><a href="#FNanchor_454_454"><span class="label">[454]</span></a> Concerning the distinction between conquest and subjugation, see - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Subjugation_must_not264">vol. II. § 264</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Subjugation_must_not264">vol. II. § 264</a>.</p></div> <div class="footnote"><p><a name="Footnote_455_455" id="Footnote_455_455"></a><a href="#FNanchor_455_455"><span class="label">[455]</span></a> See - above, §§ <a href="#The_only_form216">216</a> + above, §§ <a href="#The_only_form216">216</a> and <a href="#As_the_object219">219</a>.</p></div> <div class="sidenote"><p>Subjugation in Contradistinction to Occupation.</p></div> -<p>§ 237. Some writers<a name="FNanchor_456_456" id="FNanchor_456_456"></a><a href="#Footnote_456_456" class="fnanchor">[456]</a> maintain that subjugation is +<p>§ 237. Some writers<a name="FNanchor_456_456" id="FNanchor_456_456"></a><a href="#Footnote_456_456" class="fnanchor">[456]</a> maintain that subjugation is only a special case of occupation, because, as they assert, through conquest the enemy territory becomes no State's land and the conqueror can acquire it by @@ -16784,7 +16743,7 @@ although not through cession, but through annexation.</p> <div class="sidenote"><p>Justification of Subjugation as a Mode of Acquisition.</p></div> -<p>§ 238. As long as a Law of Nations has been in +<p>§ 238. As long as a Law of Nations has been in existence, the States as well as the vast majority of writers have recognised subjugation as a mode of acquiring territory. Its justification lies in the fact @@ -16807,11 +16766,11 @@ Code N. See also Despagnet, Nos. 387-390.</p></div> <div class="footnote"><p><a name="Footnote_458_458" id="Footnote_458_458"></a><a href="#FNanchor_458_458"><span class="label">[458]</span></a> It should be mentioned that the Pan-American Congress at Washington, 1890, passed a resolution that conquest should hereafter not -be a mode of acquisition of territory in America; see Moore, I. § 87.</p></div> +be a mode of acquisition of territory in America; see Moore, I. § 87.</p></div> <div class="sidenote"><p>Subjugation of the whole or of a part of Enemy Territory.</p></div> -<p>§ 239. Subjugation is as a rule a mode of acquiring +<p>§ 239. Subjugation is as a rule a mode of acquiring the entire enemy territory. The actual process is regularly that the victor destroys the enemy military forces, takes possession of the enemy territory, and then @@ -16833,10 +16792,10 @@ conquered territory, submits silently<a name="FNanchor_459_459" id="FNanchor_459 or by simple cessation of hostilities.<a name="FNanchor_460_460" id="FNanchor_460_460"></a><a href="#Footnote_460_460" class="fnanchor">[460]</a></p> <div class="footnote"><p><a name="Footnote_459_459" id="Footnote_459_459"></a><a href="#FNanchor_459_459"><span class="label">[459]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Un273">vol. II. § 273</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Un273">vol. II. § 273</a>.</p></div> <div class="footnote"><p><a name="Footnote_460_460" id="Footnote_460_460"></a><a href="#FNanchor_460_460"><span class="label">[460]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Since_in_the_case263">vol. II. § 263</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Since_in_the_case263">vol. II. § 263</a>.</p></div> <p>It must, however, be emphasised that such a mode of acquiring a part of enemy territory is totally different @@ -16855,18 +16814,18 @@ asserted that annexation gives a title only after a conquest is not firmly established.<a name="FNanchor_461_461" id="FNanchor_461_461"></a><a href="#Footnote_461_461" class="fnanchor">[461]</a></p> <div class="footnote"><p><a name="Footnote_461_461" id="Footnote_461_461"></a><a href="#FNanchor_461_461"><span class="label">[461]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_characteristics60">vol. II. § 60</a>, concerning guerilla war after the + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_characteristics60">vol. II. § 60</a>, concerning guerilla war after the termination of real war. Many writers, however, deny that a conquest is firmly established as long as guerilla war is going on.</p></div> <div class="sidenote"><p>Consequences of Subjugation.</p></div> -<p>§ 240. <a name="Although_subjugation240" id="Although_subjugation240"></a>Although subjugation is an original mode of +<p>§ 240. <a name="Although_subjugation240" id="Although_subjugation240"></a>Although subjugation is an original mode of acquisition, since the sovereignty of the new acquirer is not derived from that of the former owner State, the new owner State is nevertheless the successor of the former owner State as regards many points which have -been discussed above (§ <a href="#When_a_State_merges82">82</a>). It must be specially mentioned +been discussed above (§ <a href="#When_a_State_merges82">82</a>). It must be specially mentioned that, as far as the Law of Nations is concerned, the subjugator does not acquire the private property of the inhabitants of the annexed territory. Being @@ -16918,8 +16877,8 @@ inhabitants of the conquered territory.</p> Hall <i>v.</i> Campbell (1774), 1 Cowper 1208, and United States <i>v.</i> Repentigny (1866), 5 Wallace, 211. The case is similar to that of cession: see - above, § <a href="#As_the_object219">219</a>; Keith, "The Theory of State -Succession" (1907), pp. 45 and 48; Moore, III. § 379.</p></div> + above, § <a href="#As_the_object219">219</a>; Keith, "The Theory of State +Succession" (1907), pp. 45 and 48; Moore, III. § 379.</p></div> <div class="footnote"><p><a name="Footnote_463_463" id="Footnote_463_463"></a><a href="#FNanchor_463_463"><span class="label">[463]</span></a> See Halleck, II. p. 476.</p></div> @@ -16948,7 +16907,7 @@ rights as those which its citizens by birth enjoy.</p> <div class="sidenote"><p>Veto of third Powers.</p></div> -<p>§ 241. Although subjugation is an original mode of +<p>§ 241. Although subjugation is an original mode of acquiring territory and no third Power has as a rule<a name="FNanchor_466_466" id="FNanchor_466_466"></a><a href="#Footnote_466_466" class="fnanchor">[466]</a> a right of intervention, the conqueror has not in fact an unlimited possibility of annexation of the territory of @@ -16973,20 +16932,20 @@ Powers.<span class="pagenum"><a name="Page_308" id="Page_308">[Pg 308]</a></span <span class="smaller">PRESCRIPTION</span> </h4> -<p class="indh1">Grotius, II. c. 4—Vattel, I. §§ 140-151—Hall, § 36—Westlake, I. pp. 92-94—Lawrence, -§ 78—Phillimore, I. §§ 251-261—Twiss, I. § 129—Taylor, -§§ 218-219—Walker, § 13—Wheaton, § 164—Moore, I. § 88—Bluntschli, -§ 290—Hartmann, § 61—Heffter, § 12—Holtzendorff in Holtzendorff, II. p. -255—Ullmann, § 92—Bonfils, No. 534—Mérignhac, II. p. 412—Despagnet, -No. 380—Pradier-Fodéré, II. Nos. 820-829—Rivier, I. pp. 182-184—Nys, -II. pp. 34-39—Calvo, I. §§ 264-265—Fiore, II. Nos. 850-851, and Code, -Nos. 1074-1077—Martens, I. § 90—G. F. Martens, §§ 70-71—Bynkershoek, +<p class="indh1">Grotius, II. c. 4—Vattel, I. §§ 140-151—Hall, § 36—Westlake, I. pp. 92-94—Lawrence, +§ 78—Phillimore, I. §§ 251-261—Twiss, I. § 129—Taylor, +§§ 218-219—Walker, § 13—Wheaton, § 164—Moore, I. § 88—Bluntschli, +§ 290—Hartmann, § 61—Heffter, § 12—Holtzendorff in Holtzendorff, II. p. +255—Ullmann, § 92—Bonfils, No. 534—Mérignhac, II. p. 412—Despagnet, +No. 380—Pradier-Fodéré, II. Nos. 820-829—Rivier, I. pp. 182-184—Nys, +II. pp. 34-39—Calvo, I. §§ 264-265—Fiore, II. Nos. 850-851, and Code, +Nos. 1074-1077—Martens, I. § 90—G. F. Martens, §§ 70-71—Bynkershoek, "Quaestiones juris publici," IV. c 12—Heimburger, "Der Erwerb der Gebietshoheit" (1888), pp. 140-155—Ralston in A.J. IV. (1910), pp. 133-144.</p> <div class="sidenote"><p>Conception of Prescription.</p></div> -<p>§ 242. Since the existence of a science of the Law +<p>§ 242. Since the existence of a science of the Law of Nations there has always been opposition to prescription as a mode of acquiring territory. Grotius rejected the usucaption of the Roman Law, yet adopted @@ -17001,16 +16960,16 @@ for the possessor, if the possession has lasted for some length of time.</p> <div class="footnote"><p><a name="Footnote_467_467" id="Footnote_467_467"></a><a href="#FNanchor_467_467"><span class="label">[467]</span></a> See - Grotius, II. c. 4, §§ 1, 7, 9.</p></div> + Grotius, II. c. 4, §§ 1, 7, 9.</p></div> <div class="footnote"><p><a name="Footnote_468_468" id="Footnote_468_468"></a><a href="#FNanchor_468_468"><span class="label">[468]</span></a> See, - for instance, Heffter, § 12; Martens, § 90.</p></div> + for instance, Heffter, § 12; Martens, § 90.</p></div> -<div class="footnote"><p><a name="Footnote_469_469" id="Footnote_469_469"></a><a href="#FNanchor_469_469"><span class="label">[469]</span></a> G. F. Martens, § 71; Klüber, §§ 6 and 125; Holtzendorff, -II. p. 255; Ullmann, § 92.</p></div> +<div class="footnote"><p><a name="Footnote_469_469" id="Footnote_469_469"></a><a href="#FNanchor_469_469"><span class="label">[469]</span></a> G. F. Martens, § 71; Klüber, §§ 6 and 125; Holtzendorff, +II. p. 255; Ullmann, § 92.</p></div> -<div class="footnote"><p><a name="Footnote_470_470" id="Footnote_470_470"></a><a href="#FNanchor_470_470"><span class="label">[470]</span></a> Vattel, II. § 147; Wheaton, § 165; Phillimore, I. § 259; -Hall, § 36; Bluntschli, § 290; Pradier-Fodéré, II. No. 825; Bonfils, No. +<div class="footnote"><p><a name="Footnote_470_470" id="Footnote_470_470"></a><a href="#FNanchor_470_470"><span class="label">[470]</span></a> Vattel, II. § 147; Wheaton, § 165; Phillimore, I. § 259; +Hall, § 36; Bluntschli, § 290; Pradier-Fodéré, II. No. 825; Bonfils, No. 534, and many others.</p></div> <p>This opinion would indeed seem to be correct, because @@ -17052,7 +17011,7 @@ wrongful possession.</p></div> <div class="sidenote"><p>Prescription how effected.</p></div> -<p>§ 243. From the conception of prescription, as above +<p>§ 243. From the conception of prescription, as above defined, it becomes apparent that no general rule can be laid down as regards the length of time and other circumstances which are necessary to create a title by @@ -17106,14 +17065,14 @@ a political and historical character, differ so much in the different cases that the length of time necessary for prescription must likewise differ.</p> -<div class="footnote"><p><a name="Footnote_472_472" id="Footnote_472_472"></a><a href="#FNanchor_472_472"><span class="label">[472]</span></a> Vattel (II. § 151) suggests that the members of the Family +<div class="footnote"><p><a name="Footnote_472_472" id="Footnote_472_472"></a><a href="#FNanchor_472_472"><span class="label">[472]</span></a> Vattel (II. § 151) suggests that the members of the Family of Nations should enter into an agreement stipulating the number of years necessary for prescription, and David Dudley Field proposes the following rule (52) in his Outlines of an International Code: "The uninterrupted possession of territory or other property for fifty years by a nation excludes the claim of every other nation."</p></div> -<div class="footnote"><p><a name="Footnote_473_473" id="Footnote_473_473"></a><a href="#FNanchor_473_473"><span class="label">[473]</span></a> Heffter's (§ 12) dictum, "Hundert Jahre Unrecht ist noch +<div class="footnote"><p><a name="Footnote_473_473" id="Footnote_473_473"></a><a href="#FNanchor_473_473"><span class="label">[473]</span></a> Heffter's (§ 12) dictum, "Hundert Jahre Unrecht ist noch kein Tag Recht" is met by the fact that it is not the operation of time alone, but the co-operation of other circumstances and influences which creates the title by prescription.</p></div> @@ -17126,14 +17085,14 @@ creates the title by prescription.</p></div> </h4> -<p class="indh1">Hall, § 34—Phillimore, I. §§ 284-295—Moore, I. §§ 89 and 90—Holtzendorff -in Holtzendorff, II. pp. 274-279—Gareis, § 70—Liszt, § 10—Ullmann, -§ 101—Pradier-Fodéré, II. Nos. 850-852—Rivier, I. § 13—Fiore, II. -No. 865—Martens, I. § 92.</p> +<p class="indh1">Hall, § 34—Phillimore, I. §§ 284-295—Moore, I. §§ 89 and 90—Holtzendorff +in Holtzendorff, II. pp. 274-279—Gareis, § 70—Liszt, § 10—Ullmann, +§ 101—Pradier-Fodéré, II. Nos. 850-852—Rivier, I. § 13—Fiore, II. +No. 865—Martens, I. § 92.</p> <div class="sidenote"><p>Six modes of losing State Territory.</p></div> -<p>§ 244. To the five modes of acquiring sovereignty +<p>§ 244. To the five modes of acquiring sovereignty over territory correspond five modes of losing it—namely, cession, dereliction, operation of nature, subjugation, prescription. But there is a sixth mode of @@ -17148,12 +17107,12 @@ operation of nature, revolt, and dereliction must be specially discussed.</p> <div class="footnote"><p><a name="Footnote_474_474" id="Footnote_474_474"></a><a href="#FNanchor_474_474"><span class="label">[474]</span></a> See - above, §§ <a href="#Th171">171</a> + above, §§ <a href="#Th171">171</a> and <a href="#The_only_form216">216</a>.<span class="pagenum"><a name="Page_312" id="Page_312">[Pg 312]</a></span></p></div> <div class="sidenote"><p>Operation of Nature.</p></div> -<p>§ 245. Operation of nature as a mode of losing corresponds +<p>§ 245. Operation of nature as a mode of losing corresponds to accretion as a mode of acquiring territory. Just as through accretion a State may become enlarged, so it may become diminished through the disappearance @@ -17175,7 +17134,7 @@ to the present middle or mid-channel of the river.</p> <div class="sidenote"><p>Revolt.</p></div> -<p>§ 246. Revolt followed by secession is a mode of +<p>§ 246. Revolt followed by secession is a mode of losing territory to which no mode of acquisition corresponds.<a name="FNanchor_475_475" id="FNanchor_475_475"></a><a href="#Footnote_475_475" class="fnanchor">[475]</a> Revolt followed by secession has, as history teaches, frequently been a cause of loss of territory. @@ -17191,7 +17150,7 @@ once for all, since no hard-and-fast rule can be laid down regarding the time when it can be said that a<span class="pagenum"><a name="Page_313" id="Page_313">[Pg 313]</a></span> State broken off from another has established itself safely and permanently. The matter has, as will be -remembered, been treated above (§ 74), in connection +remembered, been treated above (§ 74), in connection with recognition. It may well happen that, although such a seceded State is already recognised by a third Power, the mother country does not consider the territory @@ -17205,7 +17164,7 @@ whole territory.</p></div> <div class="sidenote"><p>Dereliction.</p></div> -<p>§ 247. <a name="Dereliction_as_a_mode247" id="Dereliction_as_a_mode247"></a>Dereliction as a mode of losing corresponds +<p>§ 247. <a name="Dereliction_as_a_mode247" id="Dereliction_as_a_mode247"></a>Dereliction as a mode of losing corresponds to occupation as a mode of acquiring territory. Dereliction frees a territory from the sovereignty of the present owner State. Dereliction is effected through @@ -17233,10 +17192,10 @@ of the island of Santa Lucia and of the Delagoa Bay may be quoted as illustrations:—</p> <div class="footnote"><p><a name="Footnote_476_476" id="Footnote_476_476"></a><a href="#FNanchor_476_476"><span class="label">[476]</span></a> See - above, § <a href="#Theory_and_practice222">222</a>.</p></div> + above, § <a href="#Theory_and_practice222">222</a>.</p></div> <div class="footnote"><p><a name="Footnote_477_477" id="Footnote_477_477"></a><a href="#FNanchor_477_477"><span class="label">[477]</span></a> See - above, § <a href="#As_soon_as228">228</a>.</p></div> + above, § <a href="#As_soon_as228">228</a>.</p></div> <p>(<i>a</i>) In 1639 Santa Lucia, one of the Antilles Islands, was occupied by England, but in the following year<span class="pagenum"><a name="Page_314" id="Page_314">[Pg 314]</a></span> @@ -17256,7 +17215,7 @@ however, England resigned her claims by the Peace Treaty of Paris of 1763.<a name="FNanchor_478_478" id="FNanchor_478_478"></a><a href="#Footnote_478_478" class="fnanchor">[478]</a></p> <div class="footnote"><p><a name="Footnote_478_478" id="Footnote_478_478"></a><a href="#FNanchor_478_478"><span class="label">[478]</span></a> See - Hall, § 34, and Moore, I. § 89.</p></div> + Hall, § 34, and Moore, I. § 89.</p></div> <p>(<i>b</i>) In 1823 England occupied, in consequence of a so-called cession from native chiefs, a piece of territory @@ -17272,7 +17231,7 @@ Portugal had exercised sovereignty for nearly three hundred years.<a name="FNanchor_479_479" id="FNanchor_479_479"></a><a href="#Footnote_479_479" class="fnanchor">[479]</a></p> <div class="footnote"><p><a name="Footnote_479_479" id="Footnote_479_479"></a><a href="#FNanchor_479_479"><span class="label">[479]</span></a> See - Hall, § 34. The text of the award is printed in Moore, + Hall, § 34. The text of the award is printed in Moore, "Arbitrations," V. p. 4984.<span class="pagenum"><a name="Page_315" id="Page_315">[Pg 315]</a></span></p></div> @@ -17288,22 +17247,22 @@ hundred years.<a name="FNanchor_479_479" id="FNanchor_479_479"></a><a href="#Foo </h4> -<p class="indh1">Grotius, II. c. 2, § 3—Pufendorf, IV. c. 5, § 5—Vattel, I. §§ 279-286—Hall, -§ 40—Westlake, I. pp. 161-162—Phillimore, I. §§ 172-179—Taylor, §§ 242-246—Walker, -Science, pp. 163-171—Wheaton, §§ 186-187—Hartmann, -§ 64—Heffter, § 73—Stoerk in Holtzendorff, II. pp. 483-490—Bonfils, Nos. -573-576—Despagnet, No. 401—Pradier-Fodéré, II. Nos. 871-874—Nys, -II. pp. 132-139—Mérignhac, II. pp. 498-505—Calvo, I. §§ 347-352—Fiore, -II. Nos. 718-726—Martens, I. § 97—Perels, § 4—Azuni, "Diritto +<p class="indh1">Grotius, II. c. 2, § 3—Pufendorf, IV. c. 5, § 5—Vattel, I. §§ 279-286—Hall, +§ 40—Westlake, I. pp. 161-162—Phillimore, I. §§ 172-179—Taylor, §§ 242-246—Walker, +Science, pp. 163-171—Wheaton, §§ 186-187—Hartmann, +§ 64—Heffter, § 73—Stoerk in Holtzendorff, II. pp. 483-490—Bonfils, Nos. +573-576—Despagnet, No. 401—Pradier-Fodéré, II. Nos. 871-874—Nys, +II. pp. 132-139—Mérignhac, II. pp. 498-505—Calvo, I. §§ 347-352—Fiore, +II. Nos. 718-726—Martens, I. § 97—Perels, § 4—Azuni, "Diritto maritimo" (1796), 1, c. I. Article III.—Cauchy, "Le droit maritime -international considéré dans ses origines," 2 vols. (1862)—Nys, "Les +international considéré dans ses origines," 2 vols. (1862)—Nys, "Les origines du droit international" (1894), pp. 377-388—Castel, "Du -principe de la liberté des mers" (1900), pp. 1-15—Fulton, "The +principe de la liberté des mers" (1900), pp. 1-15—Fulton, "The Sovereignty of the Seas" (1911), pp. 1-56.</p> <div class="sidenote"><p>Former Claims to Control over the Sea.</p></div> -<p>§ 248. <a name="In_antiquity248" id="In_antiquity248"></a>In antiquity and the first half of the Middle +<p>§ 248. <a name="In_antiquity248" id="In_antiquity248"></a>In antiquity and the first half of the Middle Ages navigation on the Open Sea was free to everybody. According to Ulpianus,<a name="FNanchor_480_480" id="FNanchor_480_480"></a><a href="#Footnote_480_480" class="fnanchor">[480]</a> the sea is open to everybody by nature, and, according to Celsus,<a name="FNanchor_481_481" id="FNanchor_481_481"></a><a href="#Footnote_481_481" class="fnanchor">[481]</a> the sea, like the @@ -17357,7 +17316,7 @@ Adriatic Sea.<a name="FNanchor_483_483" id="FNanchor_483_483"></a><a href="#Foot century compelled foreigners to take out an English licence for fishing in the North Sea; and when in 1636 the Dutch attempted to fish without such licence, they -were attacked and compelled to pay £30,000 as the +were attacked and compelled to pay £30,000 as the price for the indulgence.<a name="FNanchor_484_484" id="FNanchor_484_484"></a><a href="#Footnote_484_484" class="fnanchor">[484]</a> Again, when Philip II. of<span class="pagenum"><a name="Page_317" id="Page_317">[Pg 317]</a></span> Spain was in 1554 on his way to England to marry Queen Mary, the British Admiral, who met him in the @@ -17370,12 +17329,12 @@ strike the Danish flag.</p> <div class="footnote"><p><a name="Footnote_483_483" id="Footnote_483_483"></a><a href="#FNanchor_483_483"><span class="label">[483]</span></a> See Walker, "History," I. p. 163.</p></div> -<div class="footnote"><p><a name="Footnote_484_484" id="Footnote_484_484"></a><a href="#FNanchor_484_484"><span class="label">[484]</span></a> This and the two following examples are quoted by Hall, § +<div class="footnote"><p><a name="Footnote_484_484" id="Footnote_484_484"></a><a href="#FNanchor_484_484"><span class="label">[484]</span></a> This and the two following examples are quoted by Hall, § 40.</p></div> <div class="sidenote"><p>Practical Expression of claims to Maritime Sovereignty.</p></div> -<p>§ 249. Maritime sovereignty found expression in +<p>§ 249. Maritime sovereignty found expression in maritime ceremonials at least. Such State as claimed sovereignty over a part of the Open Sea required foreign vessels navigating on that part to honour its @@ -17396,7 +17355,7 @@ to His Majesty."</p> Fulton, "The Sovereignty of the Seas" (1911), pp. 38 and 204-208.</p></div> -<div class="footnote"><p><a name="Footnote_486_486" id="Footnote_486_486"></a><a href="#FNanchor_486_486"><span class="label">[486]</span></a> Quoted by Hall, § 40.</p></div> +<div class="footnote"><p><a name="Footnote_486_486" id="Footnote_486_486"></a><a href="#FNanchor_486_486"><span class="label">[486]</span></a> Quoted by Hall, § 40.</p></div> <p>But apart from maritime ceremonials maritime sovereignty found expression in the levying of tolls from @@ -17431,7 +17390,7 @@ England's claims would have incurred her royal displeasure.</p></div> <div class="sidenote"><p>Grotius's Attack on Maritime Sovereignty.</p></div> -<p>§ 250. <a name="Queen_Elizabeths_attitude250" id="Queen_Elizabeths_attitude250"></a>Queen Elizabeth's attitude was the germ out +<p>§ 250. <a name="Queen_Elizabeths_attitude250" id="Queen_Elizabeths_attitude250"></a>Queen Elizabeth's attitude was the germ out of which grew gradually the present freedom of the Open Sea. Twenty-nine years after her answer to Mendoza, in 1609, appeared Grotius's short treatise<a name="FNanchor_488_488" id="FNanchor_488_488"></a><a href="#Footnote_488_488" class="fnanchor">[488]</a> @@ -17468,17 +17427,17 @@ competit ad Indicana commercia Dissertatio," and it is now proved that this short treatise is only chapter 12 of another work of Grotius, "De jure praedae," which was found in manuscript in 1864 and published in 1868. See - above, § <a href="#Although_Grotius_owes_much53">53</a>.</p></div> + above, § <a href="#Although_Grotius_owes_much53">53</a>.</p></div> <div class="footnote"><p><a name="Footnote_489_489" id="Footnote_489_489"></a><a href="#FNanchor_489_489"><span class="label">[489]</span></a> See - below, § <a href="#Grotius_and_many_writers259">259</a>.</p></div> + below, § <a href="#Grotius_and_many_writers259">259</a>.</p></div> <div class="footnote"><p><a name="Footnote_490_490" id="Footnote_490_490"></a><a href="#FNanchor_490_490"><span class="label">[490]</span></a> Grotius was by no means the first author who defended the freedom of the sea. See Nys, "Les origines du droit international," pp. 381 and 382.</p></div> <div class="footnote"><p><a name="Footnote_491_491" id="Footnote_491_491"></a><a href="#FNanchor_491_491"><span class="label">[491]</span></a> See - Phillimore, I. § 182.</p></div> + Phillimore, I. § 182.</p></div> <p>The general opposition to Grotius's bold attack on maritime sovereignty prevented his immediate victory. @@ -17502,11 +17461,11 @@ to salute the British flag within the "British Seas" as a recognition of British maritime sovereignty.<a name="FNanchor_492_492" id="FNanchor_492_492"></a><a href="#Footnote_492_492" class="fnanchor">[492]</a></p> <div class="footnote"><p><a name="Footnote_492_492" id="Footnote_492_492"></a><a href="#FNanchor_492_492"><span class="label">[492]</span></a> See - Hall, § 40, p. 152, note 1.</p></div> + Hall, § 40, p. 152, note 1.</p></div> <div class="sidenote"><p>Gradual Recognition of the Freedom of the Open Sea.</p></div> -<p>§ 251. <a name="In_spite_of_opposition251" id="In_spite_of_opposition251"></a>In spite of opposition, the work of Grotius<span class="pagenum"><a name="Page_320" id="Page_320">[Pg 320]</a></span> +<p>§ 251. <a name="In_spite_of_opposition251" id="In_spite_of_opposition251"></a>In spite of opposition, the work of Grotius<span class="pagenum"><a name="Page_320" id="Page_320">[Pg 320]</a></span> was not to be undone. All prominent writers of the eighteenth century take up again the case of the freedom of the Open Sea, making a distinction between @@ -17543,7 +17502,7 @@ in 1886 with Great Britain, which was settled by arbitration<a name="FNanchor_49 in 1893 in favour of the freedom of the Open Sea.</p> <div class="footnote"><p><a name="Footnote_493_493" id="Footnote_493_493"></a><a href="#FNanchor_493_493"><span class="label">[493]</span></a> See - below, § <a href="#In_1886_a_conflict284">284</a>.<span class="pagenum"><a name="Page_321" id="Page_321">[Pg 321]</a></span></p></div> + below, § <a href="#In_1886_a_conflict284">284</a>.<span class="pagenum"><a name="Page_321" id="Page_321">[Pg 321]</a></span></p></div> <h4> @@ -17552,13 +17511,13 @@ in 1893 in favour of the freedom of the Open Sea.</p> </h4> -<p class="indh1">Field, article 53—Westlake, I. p. 160—Moore, II. § 308—Rivier, I. pp. 234-235—Pradier-Fodéré, -II. No. 868—Ullmann, § 101—Stoerk in Holtzendorff, +<p class="indh1">Field, article 53—Westlake, I. p. 160—Moore, II. § 308—Rivier, I. pp. 234-235—Pradier-Fodéré, +II. No. 868—Ullmann, § 101—Stoerk in Holtzendorff, II. p. 483.</p> <div class="sidenote"><p>Discrimination between Open Sea and Territorial Waters.</p></div> -<p>§ 252. <a name="Open_Sea_or_High252" id="Open_Sea_or_High252"></a>Open Sea or High Seas<a name="FNanchor_494_494" id="FNanchor_494_494"></a><a href="#Footnote_494_494" class="fnanchor">[494]</a> is the coherent +<p>§ 252. <a name="Open_Sea_or_High252" id="Open_Sea_or_High252"></a>Open Sea or High Seas<a name="FNanchor_494_494" id="FNanchor_494_494"></a><a href="#Footnote_494_494" class="fnanchor">[494]</a> is the coherent body of salt water all over the greater part of the globe, with the exception of the maritime belt and the territorial straits, gulfs, and bays, which are parts of the @@ -17594,15 +17553,15 @@ and all connecting arms and bays or other extensions thereof not within the territorial limits of any nation whatever."</p></div> <div class="footnote"><p><a name="Footnote_495_495" id="Footnote_495_495"></a><a href="#FNanchor_495_495"><span class="label">[495]</span></a> See - above, § <a href="#It181">181</a>.</p></div> + above, § <a href="#It181">181</a>.</p></div> -<div class="footnote"><p><a name="Footnote_496_496" id="Footnote_496_496"></a><a href="#FNanchor_496_496"><span class="label">[496]</span></a> So say Rivier, I. p. 237, and Martens, I. § 97: but Stoerk +<div class="footnote"><p><a name="Footnote_496_496" id="Footnote_496_496"></a><a href="#FNanchor_496_496"><span class="label">[496]</span></a> So say Rivier, I. p. 237, and Martens, I. § 97: but Stoerk in Holtzendorff, II. p. 513, declares that the Sea of Azoff is part of the Open Sea.</p></div> <div class="sidenote"><p>Clear Instances of Parts of the Open Sea.</p></div> -<p>§ 253. <a name="It_is_not_necessary253" id="It_is_not_necessary253"></a>It is not necessary and not possible to particularise +<p>§ 253. <a name="It_is_not_necessary253" id="It_is_not_necessary253"></a>It is not necessary and not possible to particularise every portion of the Open Sea. It is sufficient to state instances which clearly indicate the extent of the Open Sea. To the Open Sea belong, of course, all @@ -17625,9 +17584,9 @@ Caribbean Sea; Baffin's Bay.</p> <div class="footnote"><p><a name="Footnote_497_497" id="Footnote_497_497"></a><a href="#FNanchor_497_497"><span class="label">[497]</span></a> The assertion of some Russian publicists that the Kara Sea -is Russian territory is refuted by Martens, I. § 97. As regards the Kara +is Russian territory is refuted by Martens, I. § 97. As regards the Kara Straits, see - above, § <a href="#All_straits194">194</a>.</p></div> + above, § <a href="#All_straits194">194</a>.</p></div> <p>It will be remembered that it is doubtful as regards @@ -17635,7 +17594,7 @@ many gulfs and bays whether they belong to the Open Sea or are territorial.<a name="FNanchor_498_498" id="FNanchor_498_498"></a><a href="#Footnote_498_498" class="fnanchor">[498]</a></p> <div class="footnote"><p><a name="Footnote_498_498" id="Footnote_498_498"></a><a href="#FNanchor_498_498"><span class="label">[498]</span></a> See - above, § <a href="#It_is_generally_admitted191">191</a>.<span class="pagenum"><a name="Page_323" id="Page_323">[Pg 323]</a></span></p></div> + above, § <a href="#It_is_generally_admitted191">191</a>.<span class="pagenum"><a name="Page_323" id="Page_323">[Pg 323]</a></span></p></div> <h4> @@ -17644,19 +17603,19 @@ Sea or are territorial.<a name="FNanchor_498_498" id="FNanchor_498_498"></a><a h </h4> -<p class="indh1">Hall, § 75—Westlake, I. pp. 160-166—Lawrence, § 100—Twiss, I. §§ 172-173—Moore, -II. §§ 309-310—Taylor, § 242—Wheaton, § 187—Bluntschli, -§§ 304-308—Heffter, § 94—Stoerk in Holtzendorff, II. pp. 483-498—Ullmann, -§ 101—Bonfils, Nos. 572-577—Pradier-Fodéré, II. Nos. 874-881—Rivier, -I. § 17—Nys, II. pp. 140-166—Calvo, I. § 346—Fiore, II. Nos. -724, 727, and Code, Nos. 928-930—Martens, I. § 97—Perels, § 4—Testa, +<p class="indh1">Hall, § 75—Westlake, I. pp. 160-166—Lawrence, § 100—Twiss, I. §§ 172-173—Moore, +II. §§ 309-310—Taylor, § 242—Wheaton, § 187—Bluntschli, +§§ 304-308—Heffter, § 94—Stoerk in Holtzendorff, II. pp. 483-498—Ullmann, +§ 101—Bonfils, Nos. 572-577—Pradier-Fodéré, II. Nos. 874-881—Rivier, +I. § 17—Nys, II. pp. 140-166—Calvo, I. § 346—Fiore, II. Nos. +724, 727, and Code, Nos. 928-930—Martens, I. § 97—Perels, § 4—Testa, pp. 63-66—Ortolan, "Diplomatie de la mer" (1856), I. pp. 119-149—De Burgh, "Elements of Maritime International Law" (1868), pp. 1-24—Castel, -"Du principe de la liberté des mers" (1900), pp. 37-80.</p> +"Du principe de la liberté des mers" (1900), pp. 37-80.</p> <div class="sidenote"><p>Meaning of the Term "Freedom of the Open Sea."</p></div> -<p>§ 254. The term "Freedom of the Open Sea" indicates +<p>§ 254. The term "Freedom of the Open Sea" indicates the rule of the Law of Nations that the Open Sea is not and never can be under the sovereignty of any State whatever. Since, therefore, the Open Sea is not @@ -17683,16 +17642,16 @@ fact that it is not the territory of any State.</p> <div class="footnote"><p><a name="Footnote_499_499" id="Footnote_499_499"></a><a href="#FNanchor_499_499"><span class="label">[499]</span></a> As regards jurisdiction in cases of collision and salvage on the Open Sea, see - below, §§ <a href="#No_rules_of_the_Law265">265</a> + below, §§ <a href="#No_rules_of_the_Law265">265</a> and <a href="#It_is_at_present271">271</a>.</p></div> <div class="footnote"><p><a name="Footnote_500_500" id="Footnote_500_500"></a><a href="#FNanchor_500_500"><span class="label">[500]</span></a> See, however, - above, § <a href="#Different_from_the_territorial190">190</a>, concerning the zone for Revenue + above, § <a href="#Different_from_the_territorial190">190</a>, concerning the zone for Revenue and Sanitary Laws.</p></div> -<div class="footnote"><p><a name="Footnote_501_501" id="Footnote_501_501"></a><a href="#FNanchor_501_501"><span class="label">[501]</span></a> Following Grotius (II. c. 3, § 13) and Bynkershoek ("De -dominio maris," c. 3), some writers (for instance, Phillimore, I. § 203) +<div class="footnote"><p><a name="Footnote_501_501" id="Footnote_501_501"></a><a href="#FNanchor_501_501"><span class="label">[501]</span></a> Following Grotius (II. c. 3, § 13) and Bynkershoek ("De +dominio maris," c. 3), some writers (for instance, Phillimore, I. § 203) maintain that any part of the Open Sea covered for the time by a vessel is by occupation to be considered as the temporary territory of the vessel's flag State. And some French writers go even beyond that and @@ -17704,13 +17663,13 @@ Stoerk in Holtzendorff, II. p. 494; Rivier, I. p. 238; Perels, pp. <div class="footnote"><p><a name="Footnote_502_502" id="Footnote_502_502"></a><a href="#FNanchor_502_502"><span class="label">[502]</span></a> But the subsoil of the bed of the Open Sea can well, through driving mines and piercing tunnels from the coast, be acquired by a littoral State. See - above, § <a href="#Only_such_territory221">221</a>, and - below, §§ <a href="#The_subsoil287c">287<i>c</i></a> + above, § <a href="#Only_such_territory221">221</a>, and + below, §§ <a href="#The_subsoil287c">287<i>c</i></a> and <a href="#Since_there_is287d">287<i>d</i></a>.</p></div> <div class="sidenote"><p>Legal Provisions for the Open Sea.</p></div> -<p>§ 255. <a name="This_legal_order255" id="This_legal_order255"></a>This legal order is created through the co-operation +<p>§ 255. <a name="This_legal_order255" id="This_legal_order255"></a>This legal order is created through the co-operation of the Law of Nations and the Municipal Laws of such States as possess a maritime flag. The following rules of the Law of Nations are universally @@ -17751,7 +17710,7 @@ on the Open Sea.</p> <div class="sidenote"><p>Freedom of the Open Sea and war.</p></div> -<p>§ 256. <a name="Al256" id="Al256"></a>Although the Open Sea is free and not the +<p>§ 256. <a name="Al256" id="Al256"></a>Although the Open Sea is free and not the territory of any State, it may nevertheless in its whole extent become the theatre of war, since the region of war is not only the territories of the belligerents, but @@ -17768,15 +17727,15 @@ neutral merchantmen for breach of blockade, contraband, and the like.</p> <div class="footnote"><p><a name="Footnote_503_503" id="Footnote_503_503"></a><a href="#FNanchor_503_503"><span class="label">[503]</span></a> Concerning the distinction between theatre and region of war, see - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Region_of_war70">vol. II. § 70</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Region_of_war70">vol. II. § 70</a>.</p></div> <p>However, certain parts of the Open Sea can become neutralised and thereby be excluded from the region of war. Thus, the Black Sea became neutralised in 1856 through article 11 of the Peace Treaty of Paris -stipulating:—"La Mer Noire est neutralisée: ouverte -à la marine marchande de toutes les nations, ses eaux -et ses ports sont formellement et à perpétuité interdites +stipulating:—"La Mer Noire est neutralisée: ouverte +à la marine marchande de toutes les nations, ses eaux +et ses ports sont formellement et à perpétuité interdites au pavillon de guerre, soit des puissances riveraines, soit de tout autre puissance." Yet this neutralisation of the Black Sea was abolished<a name="FNanchor_504_504" id="FNanchor_504_504"></a><a href="#Footnote_504_504" class="fnanchor">[504]</a> in 1871 by article 1 @@ -17784,11 +17743,11 @@ of the Treaty of London, and no other part of the Open Sea is at present neutralised.</p> <div class="footnote"><p><a name="Footnote_504_504" id="Footnote_504_504"></a><a href="#FNanchor_504_504"><span class="label">[504]</span></a> See - above, § <a href="#It181">181</a>.<span class="pagenum"><a name="Page_326" id="Page_326">[Pg 326]</a></span></p></div> + above, § <a href="#It181">181</a>.<span class="pagenum"><a name="Page_326" id="Page_326">[Pg 326]</a></span></p></div> <div class="sidenote"><p>Navigation and ceremonials on the Open Sea.</p></div> -<p>§ 257. <a name="The_freedom_of_the_Open257" id="The_freedom_of_the_Open257"></a>The freedom of the Open Sea involves perfect +<p>§ 257. <a name="The_freedom_of_the_Open257" id="The_freedom_of_the_Open257"></a>The freedom of the Open Sea involves perfect freedom of navigation for vessels of all nations, whether men-of-war, other public vessels, or merchantmen. It involves, further, absence of compulsory @@ -17804,7 +17763,7 @@ men-of-war.<a name="FNanchor_506_506" id="FNanchor_506_506"></a><a href="#Footno <div class="footnote"><p><a name="Footnote_505_505" id="Footnote_505_505"></a><a href="#FNanchor_505_505"><span class="label">[505]</span></a> But not within the maritime belt or other territorial waters. See - above, §§ <a href="#Connected_with_the_dignity122">122</a> + above, §§ <a href="#Connected_with_the_dignity122">122</a> and <a href="#Theory_and_practice_agree187">187</a>.</p></div> <div class="footnote"><p><a name="Footnote_506_506" id="Footnote_506_506"></a><a href="#FNanchor_506_506"><span class="label">[506]</span></a> That men-of-war can on the @@ -17813,7 +17772,7 @@ merchantmen to show their flags has nothing to do with ceremonials, but with the supervision of the Open Sea in the interest of its safety. See - below, § <a href="#Although_the_freedom266">266</a>.</p></div> + below, § <a href="#Although_the_freedom266">266</a>.</p></div> <p>The freedom of the Open Sea involves likewise freedom of inoffensive passage<a name="FNanchor_507_507" id="FNanchor_507_507"></a><a href="#Footnote_507_507" class="fnanchor">[507]</a> through the maritime @@ -17825,11 +17784,11 @@ navigation on the Open Sea by vessels of all nations would be a physical impossibility.</p> <div class="footnote"><p><a name="Footnote_507_507" id="Footnote_507_507"></a><a href="#FNanchor_507_507"><span class="label">[507]</span></a> See - above, § <a href="#Although_the_maritime188">188</a>.</p></div> + above, § <a href="#Although_the_maritime188">188</a>.</p></div> <div class="sidenote"><p>Claim of States to Maritime Flag.</p></div> -<p>§ 258. <a name="Since_no_State_can258" id="Since_no_State_can258"></a>Since no State can exercise protection over +<p>§ 258. <a name="Since_no_State_can258" id="Since_no_State_can258"></a>Since no State can exercise protection over vessels that do not sail under its flag, and since every vessel must, in the interest of the order and safety of the Open Sea, sail under the flag of a State, the question @@ -17865,7 +17824,7 @@ the goodwill of the maritime Powers.<a name="FNanchor_510_510" id="FNanchor_510_ Salis, "Schweizerisches Bundesrecht" (1891), vol. I. p. 234.</p></div> -<div class="footnote"><p><a name="Footnote_510_510" id="Footnote_510_510"></a><a href="#FNanchor_510_510"><span class="label">[510]</span></a> The question is discussed by Calvo, I. § 427; Twiss, I. §§ +<div class="footnote"><p><a name="Footnote_510_510" id="Footnote_510_510"></a><a href="#FNanchor_510_510"><span class="label">[510]</span></a> The question is discussed by Calvo, I. § 427; Twiss, I. §§ 197 and 198; and Westlake, I. p. 165.</p></div> <p>Such States as have a maritime flag as a rule have @@ -17879,7 +17838,7 @@ the position of Montenegro<a name="FNanchor_511_511" id="FNanchor_511_511"></a>< the Treaty of Berlin of 1878.</p> <div class="footnote"><p><a name="Footnote_511_511" id="Footnote_511_511"></a><a href="#FNanchor_511_511"><span class="label">[511]</span></a> See - above, § <a href="#Just_like_independence127">127</a>, but it is doubtful whether this + above, § <a href="#Just_like_independence127">127</a>, but it is doubtful whether this restriction is still in existence, since article 29 has, after the annexation of Bosnia and Herzegovina by Austria in 1908, been modified by the Powers, so that the port of Antivari and the other Montenegrin @@ -17888,7 +17847,7 @@ XVII. (1910), pp. 173-176.</p></div> <div class="sidenote"><p>Rationale for the Freedom of the Open Sea.</p></div> -<p>§ 259. <a name="Grotius_and_many_writers259" id="Grotius_and_many_writers259"></a>Grotius and many writers who follow<a name="FNanchor_512_512" id="FNanchor_512_512"></a><a href="#Footnote_512_512" class="fnanchor">[512]</a> him +<p>§ 259. <a name="Grotius_and_many_writers259" id="Grotius_and_many_writers259"></a>Grotius and many writers who follow<a name="FNanchor_512_512" id="FNanchor_512_512"></a><a href="#Footnote_512_512" class="fnanchor">[512]</a> him establish two facts as the reason for the freedom of the Open Sea. They maintain, first, that a part of<span class="pagenum"><a name="Page_328" id="Page_328">[Pg 328]</a></span> the Open Sea could not effectively be occupied by a @@ -17919,19 +17878,19 @@ of the freedom of the Open Sea has become universally recognised and will always be upheld.<a name="FNanchor_515_515" id="FNanchor_515_515"></a><a href="#Footnote_515_515" class="fnanchor">[515]</a></p> <div class="footnote"><p><a name="Footnote_512_512" id="Footnote_512_512"></a><a href="#FNanchor_512_512"><span class="label">[512]</span></a> See, - for instance, Twiss, I. § 172, and Westlake, I. p. + for instance, Twiss, I. § 172, and Westlake, I. p. 160.</p></div> <div class="footnote"><p><a name="Footnote_513_513" id="Footnote_513_513"></a><a href="#FNanchor_513_513"><span class="label">[513]</span></a> See - Grotius, II. c. 2, § 3.</p></div> + Grotius, II. c. 2, § 3.</p></div> <div class="footnote"><p><a name="Footnote_514_514" id="Footnote_514_514"></a><a href="#FNanchor_514_514"><span class="label">[514]</span></a> See - above, § <a href="#Intercourse_being_a_presupposition142">142</a>.</p></div> + above, § <a href="#Intercourse_being_a_presupposition142">142</a>.</p></div> <div class="footnote"><p><a name="Footnote_515_515" id="Footnote_515_515"></a><a href="#FNanchor_515_515"><span class="label">[515]</span></a> Connected with the reason for the freedom of the Open Sea is the merely theoretical question whether the vessels of a State could through an international treaty be prevented from navigating on the -whole or on certain parts of the Open Sea. See Pradier-Fodéré, II. Nos. +whole or on certain parts of the Open Sea. See Pradier-Fodéré, II. Nos. 881-885, where this point is exhaustively discussed.<span class="pagenum"><a name="Page_329" id="Page_329">[Pg 329]</a></span></p></div> @@ -17942,20 +17901,20 @@ whole or on certain parts of the Open Sea. See Pradier-Fodéré, II. Nos. </h4> -<p class="indh1">Vattel, II. § 80—Hall, § 45—Westlake, I. pp. 166-176—Lawrence, § 100—Halleck, -p. 438—Taylor, §§ 262-267—Walker, § 20—Wheaton, § 106—Moore, -II. §§ 309-310—Bluntschli, §§ 317-352—Heffter, §§ 78-80—Stoerk -in Holtzendorff, II. pp. 518-550—Liszt, § 26—Bonfils, Nos. 578-580, -597-613—Despagnet, Nos. 422-430—Mérignhac, II. pp. 505-511—Pradier-Fodéré, -V. Nos. 2376-2470—Rivier, I. § 18—Nys, II. pp. 139-165—Calvo, -I. §§ 385-473—Fiore, II. Nos. 730-742, and Code, Nos. 1001-1027—Martens, -II. §§ 55-56—Perels, § 12—Testa, pp. 98-112—Ortolan, +<p class="indh1">Vattel, II. § 80—Hall, § 45—Westlake, I. pp. 166-176—Lawrence, § 100—Halleck, +p. 438—Taylor, §§ 262-267—Walker, § 20—Wheaton, § 106—Moore, +II. §§ 309-310—Bluntschli, §§ 317-352—Heffter, §§ 78-80—Stoerk +in Holtzendorff, II. pp. 518-550—Liszt, § 26—Bonfils, Nos. 578-580, +597-613—Despagnet, Nos. 422-430—Mérignhac, II. pp. 505-511—Pradier-Fodéré, +V. Nos. 2376-2470—Rivier, I. § 18—Nys, II. pp. 139-165—Calvo, +I. §§ 385-473—Fiore, II. Nos. 730-742, and Code, Nos. 1001-1027—Martens, +II. §§ 55-56—Perels, § 12—Testa, pp. 98-112—Ortolan, "Diplomatie de la mer" (1856), II. 254-326—Hall, "Foreign Powers -and Jurisdiction of the British Crown" (1894), §§ 106-109.</p> +and Jurisdiction of the British Crown" (1894), §§ 106-109.</p> <div class="sidenote"><p>Jurisdiction on the Open Sea mainly connected with Flag.</p></div> -<p>§ 260. <a name="Jurisdiction_on_the_Open_Sea260" id="Jurisdiction_on_the_Open_Sea260"></a>Jurisdiction on the Open Sea is in the main +<p>§ 260. <a name="Jurisdiction_on_the_Open_Sea260" id="Jurisdiction_on_the_Open_Sea260"></a>Jurisdiction on the Open Sea is in the main connected with the maritime flag under which vessels sail. This is the consequence of the fact stated above<a name="FNanchor_516_516" id="FNanchor_516_516"></a><a href="#Footnote_516_516" class="fnanchor">[516]</a> that a certain legal order is created on the Open Sea @@ -17978,14 +17937,14 @@ of men-of-war over merchantmen of all nations, and, lastly, shipwreck.</p> <div class="footnote"><p><a name="Footnote_516_516" id="Footnote_516_516"></a><a href="#FNanchor_516_516"><span class="label">[516]</span></a> See - above, § <a href="#This_legal_order255">255</a>.</p></div> + above, § <a href="#This_legal_order255">255</a>.</p></div> <div class="footnote"><p><a name="Footnote_517_517" id="Footnote_517_517"></a><a href="#FNanchor_517_517"><span class="label">[517]</span></a> See - below, § <a href="#Although_the_freedom266">266</a>.</p></div> + below, § <a href="#Although_the_freedom266">266</a>.</p></div> <div class="sidenote"><p>Claim of Vessels to sail under a certain Flag.</p></div> -<p>§ 261. <a name="Th261" id="Th261"></a>The Law of Nations does not include any +<p>§ 261. <a name="Th261" id="Th261"></a>The Law of Nations does not include any rules regarding the claim of vessels to sail under a certain maritime flag, but imposes the duty upon every<span class="pagenum"><a name="Page_330" id="Page_330">[Pg 330]</a></span> State having a maritime flag to stipulate by its own @@ -18011,7 +17970,7 @@ Others again, as France, admit vessels which are in part the property of French citizens.<a name="FNanchor_520_520" id="FNanchor_520_520"></a><a href="#Footnote_520_520" class="fnanchor">[520]</a></p> <div class="footnote"><p><a name="Footnote_518_518" id="Footnote_518_518"></a><a href="#FNanchor_518_518"><span class="label">[518]</span></a> See - Calvo, I. §§ 393-423, where the respective Municipal + Calvo, I. §§ 393-423, where the respective Municipal Laws of most countries are quoted.</p></div> <div class="footnote"><p><a name="Footnote_519_519" id="Footnote_519_519"></a><a href="#FNanchor_519_519"><span class="label">[519]</span></a> See @@ -18022,7 +17981,7 @@ Vict. c. 60), and sections 51 and 80 of the Merchant Shipping Act, 1906 <div class="footnote"><p><a name="Footnote_520_520" id="Footnote_520_520"></a><a href="#FNanchor_520_520"><span class="label">[520]</span></a> The Institute of International Law adopted, at its meeting at Venice—see Annuaire, XV. (1896), p. 201—in 1896, a body of ten rules concerning the sailing of merchantmen under the maritime flag of a -State under the heading:—"<i>Règles relatives à l'usage du pavillon +State under the heading:—"<i>Règles relatives à l'usage du pavillon national pour les navires de commerce</i>."</p></div> <p>But no State can allow such vessel to sail under its @@ -18048,7 +18007,7 @@ Britannic Majesty's Consul-General at Shanghai, L.R., App. c. 1909, p. <div class="sidenote"><p>Ship Papers.</p></div> -<p>§ 262. <a name="Al262" id="Al262"></a>All States with a maritime flag are by the +<p>§ 262. <a name="Al262" id="Al262"></a>All States with a maritime flag are by the Law of Nations obliged to make private vessels sailing under their flags carry on board so-called ship papers, which serve the purpose of identification on the Open @@ -18059,7 +18018,7 @@ this subject.<a name="FNanchor_522_522" id="FNanchor_522_522"></a><a href="#Foot to the following papers:—</p> <div class="footnote"><p><a name="Footnote_522_522" id="Footnote_522_522"></a><a href="#FNanchor_522_522"><span class="label">[522]</span></a> See - Holland, "Manual of Naval Prize Law," §§ 178-194, where + Holland, "Manual of Naval Prize Law," §§ 178-194, where the papers required by the different maritime States are enumerated.</p></div> <p>(1) An official voucher authorising the vessel to sail @@ -18093,7 +18052,7 @@ person who hires it.</p> <div class="sidenote"><p>Names of Vessels.</p></div> -<p>§ 263. Every State must register the names of all +<p>§ 263. Every State must register the names of all private vessels sailing under its flag, and it must make them bear their names visibly, so that every vessel may be identified from a distance. No vessel must be @@ -18107,7 +18066,7 @@ Shipping Act, 1906.</p></div> <div class="sidenote"><p>Territorial Quality of Vessels on the Open Sea.</p></div> -<p>§ 264. <a name="It_is_a_customary264" id="It_is_a_customary264"></a>It is a customary rule of the Law of Nations +<p>§ 264. <a name="It_is_a_customary264" id="It_is_a_customary264"></a>It is a customary rule of the Law of Nations that men-of-war and other public vessels of any State are, whilst on the Open Sea as well as in foreign territorial waters, in every point considered as though they @@ -18129,8 +18088,8 @@ and in time of peace men-of-war of all nations have certain powers<a name="FNanchor_527_527" id="FNanchor_527_527"></a><a href="#Footnote_527_527" class="fnanchor">[527]</a> over merchantmen of all nations.</p> <div class="footnote"><p><a name="Footnote_524_524" id="Footnote_524_524"></a><a href="#FNanchor_524_524"><span class="label">[524]</span></a> See - above, § <a href="#To_the_territory_of172">172</a>, and - below, §§ <a href="#Men-of-war_are_State_organs447">447</a>-451.</p></div> + above, § <a href="#To_the_territory_of172">172</a>, and + below, §§ <a href="#Men-of-war_are_State_organs447">447</a>-451.</p></div> <div class="footnote"><p><a name="Footnote_525_525" id="Footnote_525_525"></a><a href="#FNanchor_525_525"><span class="label">[525]</span></a> See Jordan in R.I. 2nd Ser. X. (1908), pp. 340-362 and @@ -18142,12 +18101,12 @@ legislating as regards such of its citizens as sail on the Open Sea on board a foreign vessel.</p></div> <div class="footnote"><p><a name="Footnote_527_527" id="Footnote_527_527"></a><a href="#FNanchor_527_527"><span class="label">[527]</span></a> See - below, § <a href="#Although_the_freedom266">266</a>. The question of the territoriality of -vessels is ably discussed by Hall, §§ 76-79.</p></div> + below, § <a href="#Although_the_freedom266">266</a>. The question of the territoriality of +vessels is ably discussed by Hall, §§ 76-79.</p></div> <div class="sidenote"><p>Safety of Traffic on the Open Sea.</p></div> -<p>§ 265. <a name="No_rules_of_the_Law265" id="No_rules_of_the_Law265"></a>No rules of the Law of Nations exist as yet<a name="FNanchor_528_528" id="FNanchor_528_528"></a><a href="#Footnote_528_528" class="fnanchor">[528]</a> +<p>§ 265. <a name="No_rules_of_the_Law265" id="No_rules_of_the_Law265"></a>No rules of the Law of Nations exist as yet<a name="FNanchor_528_528" id="FNanchor_528_528"></a><a href="#Footnote_528_528" class="fnanchor">[528]</a> for the purpose of preventing collisions, saving lives after collisions, and the like, but every State possessing a maritime flag has legislated for the conduct on @@ -18241,7 +18200,7 @@ by maintaining that collision is a matter of by the Courts<a name="FNanchor_540_540" id="FNanchor_540_540"></a><a href="#Footnote_540_540" class="fnanchor">[540]</a> of all maritime States.<a name="FNanchor_541_541" id="FNanchor_541_541"></a><a href="#Footnote_541_541" class="fnanchor">[541]</a></p> <div class="footnote"><p><a name="Footnote_534_534" id="Footnote_534_534"></a><a href="#FNanchor_534_534"><span class="label">[534]</span></a> See - Phillimore, IV. § 815; Calvo, I. § 444; Pradier-Fodéré, + Phillimore, IV. § 815; Calvo, I. § 444; Pradier-Fodéré, V. Nos. 2362-2374; Bar, "Private International Law" (2nd ed. translated by Gillespie), pp. 720 and 928; Dicey, "Conflict of Laws" (2nd ed.), pp. 650-652 and 790; Foote, "Private International Law" (3rd ed.), pp. 486 @@ -18251,13 +18210,13 @@ Bruce, "Treatise on the Jurisdiction of English Courts in Admiralty Actions" (3rd ed. 1902).</p></div> <div class="footnote"><p><a name="Footnote_535_535" id="Footnote_535_535"></a><a href="#FNanchor_535_535"><span class="label">[535]</span></a> See - above, § <a href="#As146">146</a>.</p></div> + above, § <a href="#As146">146</a>.</p></div> <div class="footnote"><p><a name="Footnote_536_536" id="Footnote_536_536"></a><a href="#FNanchor_536_536"><span class="label">[536]</span></a> See - Pradier-Fodéré, No. 2363.</p></div> + Pradier-Fodéré, No. 2363.</p></div> <div class="footnote"><p><a name="Footnote_537_537" id="Footnote_537_537"></a><a href="#FNanchor_537_537"><span class="label">[537]</span></a> See - Pradier-Fodéré, No. 2364.</p></div> + Pradier-Fodéré, No. 2364.</p></div> <div class="footnote"><p><a name="Footnote_538_538" id="Footnote_538_538"></a><a href="#FNanchor_538_538"><span class="label">[538]</span></a> Or even in foreign territorial waters. See Williams and @@ -18273,7 +18232,7 @@ Netherlands India Steam Navigation Co., 10 Q.B.D. 537.</p></div> <div class="footnote"><p><a name="Footnote_540_540" id="Footnote_540_540"></a><a href="#FNanchor_540_540"><span class="label">[540]</span></a> The practice of the United States of America coincides with that of Great Britain; see the case of the <i>Belgenland</i>, 114, United -States, 355, and Wharton, I. § 27.</p></div> +States, 355, and Wharton, I. § 27.</p></div> <div class="footnote"><p><a name="Footnote_541_541" id="Footnote_541_541"></a><a href="#FNanchor_541_541"><span class="label">[541]</span></a> The Institute of International Law, at its meeting at Lausanne in 1888, adopted two rules concerning the jurisdiction in cases @@ -18281,7 +18240,7 @@ of collision; see Annuaire, X. (1889), p. 152.</p></div> <div class="sidenote"><p>Powers of Men-of-war over Merchantmen of all Nations.</p></div> -<p>§ 266. <a name="Although_the_freedom266" id="Although_the_freedom266"></a>Although the freedom of the Open Sea and +<p>§ 266. <a name="Although_the_freedom266" id="Although_the_freedom266"></a>Although the freedom of the Open Sea and the fact that vessels on the Open Sea remain under the jurisdiction of the flag State exclude as a rule the exercise of any State's authority over foreign vessels, there @@ -18311,13 +18270,13 @@ must not be abused, and that the home State is responsible for damages in case a man-of-war stops and visits a foreign merchantman without sufficient ground of suspicion. The right of every State to punish piracy -on the Open Sea will be treated below, §§ 272-280.</p> +on the Open Sea will be treated below, §§ 272-280.</p> -<div class="footnote"><p><a name="Footnote_542_542" id="Footnote_542_542"></a><a href="#FNanchor_542_542"><span class="label">[542]</span></a> So-called "Droit d'enquête" or "Vérification du pavillon." +<div class="footnote"><p><a name="Footnote_542_542" id="Footnote_542_542"></a><a href="#FNanchor_542_542"><span class="label">[542]</span></a> So-called "Droit d'enquête" or "Vérification du pavillon." This power of men-of-war has given occasion to much dispute and discussion, but in fact nobody denies that in case of grave suspicion -this power does exist. See Twiss, I. § 193; Hall, § 81, p. 276; Fiore, -II. Nos. 732-736; Perels, § 17; Taylor, § 266; Bonfils, No. 519.</p></div> +this power does exist. See Twiss, I. § 193; Hall, § 81, p. 276; Fiore, +II. Nos. 732-736; Perels, § 17; Taylor, § 266; Bonfils, No. 519.</p></div> <p>(3) So-called Right of Pursuit. It is a universally recognised customary rule that men-of-war of a littoral @@ -18332,7 +18291,7 @@ as soon as the merchantman passes into the maritime belt of a foreign State.<a name="FNanchor_543_543" id="FNanchor_543_543"></a><a href="#Footnote_543_543" class="fnanchor">[543]</a></p> <div class="footnote"><p><a name="Footnote_543_543" id="Footnote_543_543"></a><a href="#FNanchor_543_543"><span class="label">[543]</span></a> See - Hall, § 80.</p></div> + Hall, § 80.</p></div> <p>(4) Abuse of Flag. It is another universally recognised rule that men-of-war of every State may seize @@ -18367,17 +18326,17 @@ suspect vessel under 500 tons. </p><p> (2) In the interest of the Fisheries in the North Sea, special cruisers of the littoral Powers control all fishing vessels and bumboats. See - below, §§ <a href="#For_the_purpose_of_regulating_the_fisheries282">282</a> + below, §§ <a href="#For_the_purpose_of_regulating_the_fisheries282">282</a> and <a href="#Connected_with_the_regulation283">283</a>. </p><p> (3) In the interest of Transatlantic telegraph cables, men-of-war of the signatory Powers of the treaty for the protection of such cables have certain powers over merchantmen. (See - below, § <a href="#Page_287">287</a>.)</p></div> + below, § <a href="#Page_287">287</a>.)</p></div> <div class="sidenote"><p>How Verification of Flag is effected.</p></div> -<p>§ 267. A man-of-war which meets a suspicious +<p>§ 267. A man-of-war which meets a suspicious merchantman not showing her colours and wishes to verify the same, hoists her own flag and fires a blank cartridge. This is a signal for the other vessel to hoist @@ -18390,7 +18349,7 @@ of visiting her and thereby verifying her nationality.</p> <div class="sidenote"><p>How Visit is effected.</p></div> -<p>§ 268. <a name="Th268" id="Th268"></a>The intention to visit may be communicated +<p>§ 268. <a name="Th268" id="Th268"></a>The intention to visit may be communicated to a merchantman either by hailing or by the "informing gun"—that is, by firing either one or two blank cartridges. If the vessel takes no notice of this @@ -18406,7 +18365,7 @@ and the vessel is allowed to proceed on her course.</p> <div class="sidenote"><p>How Search is effected.</p></div> -<p>§ 269. <a name="Se269" id="Se269"></a>Search is naturally a measure which visit +<p>§ 269. <a name="Se269" id="Se269"></a>Search is naturally a measure which visit must always precede. It is because the visit has given no satisfaction that search is instituted. Search is effected by an officer and some of the crew of the man-of-war, @@ -18422,7 +18381,7 @@ is to be allowed to proceed on her course.</p> <div class="sidenote"><p>How Arrest is effected.</p></div> -<p>§ 270. Arrest of a vessel takes place either after +<p>§ 270. Arrest of a vessel takes place either after visit and search have shown her liable thereto, or after she has committed some act which alone already justifies her seizure. Arrest is effected through the commander @@ -18444,15 +18403,15 @@ be brought into a harbour of her flag State and handed over to the authorities there.<a name="FNanchor_546_546" id="FNanchor_546_546"></a><a href="#Footnote_546_546" class="fnanchor">[546]</a></p> <div class="footnote"><p><a name="Footnote_545_545" id="Footnote_545_545"></a><a href="#FNanchor_545_545"><span class="label">[545]</span></a> Except in the case of distress or unseaworthiness; see - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#As_soon_as_a_vessel193">vol. II. § 193</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#As_soon_as_a_vessel193">vol. II. § 193</a>.</p></div> <div class="footnote"><p><a name="Footnote_546_546" id="Footnote_546_546"></a><a href="#FNanchor_546_546"><span class="label">[546]</span></a> See - below, §§ <a href="#For_the_purpose_of_regulating_the_fisheries282">282</a> + below, §§ <a href="#For_the_purpose_of_regulating_the_fisheries282">282</a> and <a href="#Connected_with_the_regulation283">283</a>.<span class="pagenum"><a name="Page_339" id="Page_339">[Pg 339]</a></span></p></div> <div class="sidenote"><p>Shipwreck and Distress on the Open Sea.</p></div> -<p>§ 271. <a name="It_is_at_present271" id="It_is_at_present271"></a>It is at present the universal conviction on +<p>§ 271. <a name="It_is_at_present271" id="It_is_at_present271"></a>It is at present the universal conviction on the part of the States that goods and persons shipwrecked on the Open Sea do not thereby lose the protection of the flag State of the shipwrecked vessel. @@ -18471,12 +18430,12 @@ Conference of the Maritime Committee held at Brussels in September 1910 also produced a draft convention concerning salvage, which the British Government likewise intends to ratify provided Parliament passes the "Maritime Conventions Bill," see - above, <a href="#Footnote_528_528">§ 265, p. 333, note 2</a>, and Supplement to the <i>American Journal of International + above, <a href="#Footnote_528_528">§ 265, p. 333, note 2</a>, and Supplement to the <i>American Journal of International Law</i>, IV. (1910), p. 126. According to the practice of the Admiralty Court—see the case of the <i>Johann Friederich</i>, 1 W. Robinson, 35—salvage on the Open Sea is, just like collisions, a matter of <i>communis juris</i> upon which the Courts of all maritime States are -competent to adjudicate. See Phillimore, IV. § 815; and Dicey, "Conflict +competent to adjudicate. See Phillimore, IV. § 815; and Dicey, "Conflict of Laws" (2nd ed. 1908), p. 791. See also sect. 545 and 565 of the Merchant Shipping Act, 1894.</p></div> @@ -18493,7 +18452,7 @@ morally every vessel is bound to render assistance to another vessel in distress.<a name="FNanchor_549_549" id="FNanchor_549_549"></a><a href="#Footnote_549_549" class="fnanchor">[549]</a></p> <div class="footnote"><p><a name="Footnote_548_548" id="Footnote_548_548"></a><a href="#FNanchor_548_548"><span class="label">[548]</span></a> See, - for instance, Perels, § 25, and Fiore, II. No. 732.</p></div> + for instance, Perels, § 25, and Fiore, II. No. 732.</p></div> <div class="footnote"><p><a name="Footnote_549_549" id="Footnote_549_549"></a><a href="#FNanchor_549_549"><span class="label">[549]</span></a> According to article 11 of the draft convention concerning salvage produced by the Conference of the Maritime Committee at Brussels @@ -18515,21 +18474,21 @@ liable for violations of the foregoing provision."</p></div> -<p class="indh1">Hall, §§ 81-82—Westlake, I. pp. 177-182—Lawrence, § 102—Phillimore, I. -§§ 356-361—Twiss, I. §§ 177 and 193—Halleck, I. pp. 444-450—Taylor, §§ -188-189—Walker, § 21—Westlake, I. pp. 177-182—Wheaton, §§ 122-124—Moore, -II. §§ 311-315—Bluntschli, §§ 343-350—Heffter, § 104—Gareis in -Holtzendorff, II. pp. 571-581—Gareis, § 58—Liszt, § 26—Ullmann, § 104—Bonfils, -Nos. 592-594—Despagnet, Nos. 431-433—Mérignhac, II. pp. -506-511—Pradier-Fodéré, V. Nos. 2491-2515—Rivier, I. pp. 248-251—Calvo, -I. §§ 485-512—Fiore, I. Nos. 494-495, and Code, Nos. 295-300—Perels, -§§ 16-17—Testa, pp. 90-97—Ortolan, "Diplomatie de la mer" +<p class="indh1">Hall, §§ 81-82—Westlake, I. pp. 177-182—Lawrence, § 102—Phillimore, I. +§§ 356-361—Twiss, I. §§ 177 and 193—Halleck, I. pp. 444-450—Taylor, §§ +188-189—Walker, § 21—Westlake, I. pp. 177-182—Wheaton, §§ 122-124—Moore, +II. §§ 311-315—Bluntschli, §§ 343-350—Heffter, § 104—Gareis in +Holtzendorff, II. pp. 571-581—Gareis, § 58—Liszt, § 26—Ullmann, § 104—Bonfils, +Nos. 592-594—Despagnet, Nos. 431-433—Mérignhac, II. pp. +506-511—Pradier-Fodéré, V. Nos. 2491-2515—Rivier, I. pp. 248-251—Calvo, +I. §§ 485-512—Fiore, I. Nos. 494-495, and Code, Nos. 295-300—Perels, +§§ 16-17—Testa, pp. 90-97—Ortolan, "Diplomatie de la mer" (1856), I. pp. 231-253—Stiel, "Der Thatbestand der Piraterie" (1905).</p> <div class="sidenote"><p>Conception of Piracy.</p></div> -<p>§ 272. Piracy, in its original and strict meaning, is +<p>§ 272. Piracy, in its original and strict meaning, is every unauthorised act of violence committed by a private vessel on the Open Sea against another vessel with intent to plunder (<i>animo furandi</i>). The majority @@ -18559,8 +18518,8 @@ persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel</i>.<a name="FNanchor_551_551" id="FNanchor_551_551"></a><a href="#Footnote_551_551" class="fnanchor">[551]</a></p> -<div class="footnote"><p><a name="Footnote_550_550" id="Footnote_550_550"></a><a href="#FNanchor_550_550"><span class="label">[550]</span></a> Hall, § 81; Lawrence, § 102; Bluntschli, § 343; Liszt, § -26; Calvo, § 485.</p></div> +<div class="footnote"><p><a name="Footnote_550_550" id="Footnote_550_550"></a><a href="#FNanchor_550_550"><span class="label">[550]</span></a> Hall, § 81; Lawrence, § 102; Bluntschli, § 343; Liszt, § +26; Calvo, § 485.</p></div> <div class="footnote"><p><a name="Footnote_551_551" id="Footnote_551_551"></a><a href="#FNanchor_551_551"><span class="label">[551]</span></a> The conception of Piracy is discussed in the case of the Republic of Bolivia <i>v.</i> The Indemnity Mutual Marine Assurance Co., L.R. @@ -18579,11 +18538,11 @@ the enemy of every State, and can be brought to justice anywhere.</p> <div class="footnote"><p><a name="Footnote_552_552" id="Footnote_552_552"></a><a href="#FNanchor_552_552"><span class="label">[552]</span></a> See - above, § <a href="#International_delinquency151">151</a>.</p></div> + above, § <a href="#International_delinquency151">151</a>.</p></div> <div class="sidenote"><p>Private Ships as Subjects of Piracy.</p></div> -<p>§ 273. <a name="Private_vessels273" id="Private_vessels273"></a>Private vessels only<a name="FNanchor_553_553" id="FNanchor_553_553"></a><a href="#Footnote_553_553" class="fnanchor">[553]</a> can commit piracy. A +<p>§ 273. <a name="Private_vessels273" id="Private_vessels273"></a>Private vessels only<a name="FNanchor_553_553" id="FNanchor_553_553"></a><a href="#Footnote_553_553" class="fnanchor">[553]</a> can commit piracy. A man-of-war or other public ship, as long as she remains such, is never a pirate. If she commits unjustified acts of violence, redress must be asked from her flag State, @@ -18601,12 +18560,12 @@ were to take Letters of Marque from both belligerents, she would be considered a pirate.</p> <div class="footnote"><p><a name="Footnote_553_553" id="Footnote_553_553"></a><a href="#FNanchor_553_553"><span class="label">[553]</span></a> Piracy committed by the mutinous crew will be treated -below, § 274.</p></div> +below, § 274.</p></div> <div class="footnote"><p><a name="Footnote_554_554" id="Footnote_554_554"></a><a href="#FNanchor_554_554"><span class="label">[554]</span></a> See - details regarding this controversial point in Hall, § + details regarding this controversial point in Hall, § 81. See also - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Formerly_privateers83">vol. II. §§ 83</a> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Formerly_privateers83">vol. II. §§ 83</a> and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#In_former_centuries330">330</a>.<span class="pagenum"><a name="Page_342" id="Page_342">[Pg 342]</a></span></p></div> <p>Doubtful is the case where a privateer in a civil war @@ -18638,11 +18597,11 @@ was in command of the British squadron in the Pacific.<a name="FNanchor_557_557" id="FNanchor_557_557"></a><a href="#Footnote_557_557" class="fnanchor">[557]</a></p> <div class="footnote"><p><a name="Footnote_555_555" id="Footnote_555_555"></a><a href="#FNanchor_555_555"><span class="label">[555]</span></a> See - Calvo, I. §§ 497-501; Hall, § 82; Westlake, I. pp. + Calvo, I. §§ 497-501; Hall, § 82; Westlake, I. pp. 179-182.</p></div> <div class="footnote"><p><a name="Footnote_556_556" id="Footnote_556_556"></a><a href="#FNanchor_556_556"><span class="label">[556]</span></a> But in the American case of the <i>Ambrose Light</i> (25 Federal -408; see also Moore, II. § 332, p. 1098) the Court did not agree with +408; see also Moore, II. § 332, p. 1098) the Court did not agree with this. The <i>Ambrose Light</i> was a brigantine which, when on April 24, 1885, she was sighted by Commander Clark of the U.S.S. <i>Alliance</i> in the Caribbean Sea, was flying a strange flag showing a red cross on a white @@ -18658,9 +18617,9 @@ however, nevertheless released because the American Secretary of State had recognised by implication a state of war between the insurgents and the legitimate Columbian Government.</p></div> -<div class="footnote"><p><a name="Footnote_557_557" id="Footnote_557_557"></a><a href="#FNanchor_557_557"><span class="label">[557]</span></a> As regards the case of the Argentinian vessel <i>Porteña</i> and +<div class="footnote"><p><a name="Footnote_557_557" id="Footnote_557_557"></a><a href="#FNanchor_557_557"><span class="label">[557]</span></a> As regards the case of the Argentinian vessel <i>Porteña</i> and the Spanish vessel <i>Montezuma</i>, afterwards called <i>Cespedes</i>, see Calvo, -I. §§ 502 and 503.</p></div> +I. §§ 502 and 503.</p></div> <p>The case must also be mentioned of a privateer or man-of-war which after the conclusion of peace or the @@ -18679,7 +18638,7 @@ from hostilities as soon as he had obtained this information.</p> <div class="footnote"><p><a name="Footnote_558_558" id="Footnote_558_558"></a><a href="#FNanchor_558_558"><span class="label">[558]</span></a> See - Lawrence, § 102.</p></div> + Lawrence, § 102.</p></div> <p>It must be emphasised that the motive and the purpose of such acts of violence do not alter their @@ -18693,11 +18652,11 @@ pirate.<a name="FNanchor_559_559" id="FNanchor_559_559"></a><a href="#Footnote_5 <div class="footnote"><p><a name="Footnote_559_559" id="Footnote_559_559"></a><a href="#FNanchor_559_559"><span class="label">[559]</span></a> This statement is correct in spite of art. 46, No. 1, of the Declaration of London; see - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#In_contradistinction410">vol. II. § 410</a>, No. 1.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#In_contradistinction410">vol. II. § 410</a>, No. 1.</p></div> <div class="sidenote"><p>Mutinous Crew and Passengers as Subjects of Piracy.</p></div> -<p>§ 274. The crew or the whole or a part of the passengers +<p>§ 274. The crew or the whole or a part of the passengers who revolt on the Open Sea and convert the vessel and her goods to their own use, commit thereby piracy, whether the vessel is private or public. But a @@ -18714,7 +18673,7 @@ their own use.</p> <div class="sidenote"><p>Object of Piracy.</p></div> -<p>§ 275. The object of piracy is any public or private +<p>§ 275. The object of piracy is any public or private vessel, or the persons or the goods thereon, whilst on the Open Sea. In the regular case of piracy the pirate wants to make booty; it is the cargo of the attacked @@ -18733,11 +18692,11 @@ although he may afterwards free vessel, crew, and cargo.</p> <p>That a possible object of piracy is not only another vessel, but also the very ship on which the crew and passenger navigate, is an inference from the statements -above in § 274.</p> +above in § 274.</p> <div class="sidenote"><p>Piracy, how effected.</p></div> -<p>§ 276. Piracy is effected by any unauthorised act of +<p>§ 276. Piracy is effected by any unauthorised act of violence, be it direct application of force or intimidation through menace. The crew or passengers who, for the purpose of converting a vessel and her goods to @@ -18762,13 +18721,13 @@ single act of violence.<a name="FNanchor_560_560" id="FNanchor_560_560"></a><a h <div class="footnote"><p><a name="Footnote_560_560" id="Footnote_560_560"></a><a href="#FNanchor_560_560"><span class="label">[560]</span></a> See Stephen, "Digest of the Criminal Law," article 104. In the case of the <i>Ambrose Light</i>—see - above, § <a href="#Private_vessels273">273</a>—the Court considered + above, § <a href="#Private_vessels273">273</a>—the Court considered the vessel to be a pirate, although no attempt to commit a piratical act had been made by her.</p></div> <div class="sidenote"><p>Where Piracy can be committed.</p></div> -<p>§ 277. Piracy as an "international crime" can be +<p>§ 277. Piracy as an "international crime" can be committed on the Open Sea only. Piracy in territorial coast waters has quite as little to do with International Law as other robberies on the territory of a State. Some @@ -18786,11 +18745,11 @@ been, a crime against the safety of traffic on the Open Sea, and therefore it cannot be committed anywhere else than on the Open Sea.</p> -<div class="footnote"><p><a name="Footnote_561_561" id="Footnote_561_561"></a><a href="#FNanchor_561_561"><span class="label">[561]</span></a> Hall, § 81; Lawrence, § 102; Westlake, I. p. 177.</p></div> +<div class="footnote"><p><a name="Footnote_561_561" id="Footnote_561_561"></a><a href="#FNanchor_561_561"><span class="label">[561]</span></a> Hall, § 81; Lawrence, § 102; Westlake, I. p. 177.</p></div> <div class="sidenote"><p>Jurisdiction over Pirates, and their Punishment.</p></div> -<p>§ 278. <a name="A_pirate_and278" id="A_pirate_and278"></a>A pirate and his vessel lose <i>ipso facto</i> by an +<p>§ 278. <a name="A_pirate_and278" id="A_pirate_and278"></a>A pirate and his vessel lose <i>ipso facto</i> by an act of piracy the protection of their flag State and their national character. Every maritime State has by a customary rule of the Law of Nations the right to<span class="pagenum"><a name="Page_346" id="Page_346">[Pg 346]</a></span> @@ -18813,8 +18772,8 @@ different States being competent to order any less severe punishment. Nor does the Law of Nations make it a duty for every maritime State to punish all pirates.<a name="FNanchor_564_564" id="FNanchor_564_564"></a><a href="#Footnote_564_564" class="fnanchor">[564]</a></p> -<div class="footnote"><p><a name="Footnote_562_562" id="Footnote_562_562"></a><a href="#FNanchor_562_562"><span class="label">[562]</span></a> A few writers (Gareis in Holtzendorff, II. p 575; Liszt, § -26; Ullmann, § 104; Stiel, <i>op. cit.</i>, p. 51) maintain, however, that +<div class="footnote"><p><a name="Footnote_562_562" id="Footnote_562_562"></a><a href="#FNanchor_562_562"><span class="label">[562]</span></a> A few writers (Gareis in Holtzendorff, II. p 575; Liszt, § +26; Ullmann, § 104; Stiel, <i>op. cit.</i>, p. 51) maintain, however, that men-of-war only have the power to seize the pirate.</p></div> <div class="footnote"><p><a name="Footnote_563_563" id="Footnote_563_563"></a><a href="#FNanchor_563_563"><span class="label">[563]</span></a> If a pirate is chased on the Open Sea and flees into the @@ -18824,7 +18783,7 @@ littoral State.</p></div> <div class="footnote"><p><a name="Footnote_564_564" id="Footnote_564_564"></a><a href="#FNanchor_564_564"><span class="label">[564]</span></a> Thus, according to the German Criminal Code, piracy committed by foreigners against foreign vessels cannot be punished by -German Courts (see Perels, § 17). From article 104 of Stephen's "Digest +German Courts (see Perels, § 17). From article 104 of Stephen's "Digest of the Criminal Law," there seems to be no doubt that, according to English Law, all pirates are liable to be punished. See Stiel, <i>op. cit.</i>, p. 15, note 4, where a survey is given of the Municipal Law of @@ -18834,11 +18793,11 @@ many States concerning this point.</p></div> insuring the safety of traffic, the power of verifying the flags of suspicious merchantmen of all nations, has already been stated - above (§ <a href="#Ve2of266">266, No. 2</a>).</p> + above (§ <a href="#Ve2of266">266, No. 2</a>).</p> <div class="sidenote"><p><i>Pirata non mutat dominium.</i></p></div> -<p>§ 279. The question as to the property in the seized +<p>§ 279. The question as to the property in the seized piratical vessels and the goods thereon has been the subject of much controversy. During the seventeenth century the practice of several States conceded such @@ -18857,7 +18816,7 @@ is to be paid to the captor of the pirate.</p> <div class="footnote"><p><a name="Footnote_565_565" id="Footnote_565_565"></a><a href="#FNanchor_565_565"><span class="label">[565]</span></a> See details regarding the question as to the piratical -vessels and goods in Pradier-Fodéré, V. Nos. 2496-2499.</p></div> +vessels and goods in Pradier-Fodéré, V. Nos. 2496-2499.</p></div> <div class="footnote"><p><a name="Footnote_566_566" id="Footnote_566_566"></a><a href="#FNanchor_566_566"><span class="label">[566]</span></a> See section 5 of the "Act to repeal an Act of the Sixth @@ -18866,8 +18825,8 @@ Destruction of Piratical Ships, &c." (13 & 14 Vict. ch. 26).</p></div> <div class="sidenote"><p>Piracy according to Municipal Law.</p></div> -<p>§ 280. Piracy, according to the Law of Nations, -which has been defined above (§ 272) as every unauthorised +<p>§ 280. Piracy, according to the Law of Nations, +which has been defined above (§ 272) as every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or @@ -18885,7 +18844,7 @@ the King's enemies during a war, or who transports slaves on the High Seas.</p> <div class="footnote"><p><a name="Footnote_567_567" id="Footnote_567_567"></a><a href="#FNanchor_567_567"><span class="label">[567]</span></a> See - Calvo, §§ 488-492; Lawrence, § 103; Pradier-Fodéré, V. + Calvo, §§ 488-492; Lawrence, § 103; Pradier-Fodéré, V. Nos. 2501 and 2502.</p></div> <div class="footnote"><p><a name="Footnote_568_568" id="Footnote_568_568"></a><a href="#FNanchor_568_568"><span class="label">[568]</span></a> See @@ -18902,8 +18861,8 @@ molested American vessels suspected of carrying slaves, the United States objected and rightly complained.<a name="FNanchor_569_569" id="FNanchor_569_569"></a><a href="#Footnote_569_569" class="fnanchor">[569]</a></p> <div class="footnote"><p><a name="Footnote_569_569" id="Footnote_569_569"></a><a href="#FNanchor_569_569"><span class="label">[569]</span></a> See - Wharton, III. § 327, pp. 142 and 143; Taylor, § 190; -Moore, II. § 310, pp. 941-946.</p></div> + Wharton, III. § 327, pp. 142 and 143; Taylor, § 190; +Moore, II. § 310, pp. 941-946.</p></div> @@ -18914,21 +18873,21 @@ Moore, II. § 310, pp. 941-946.</p></div> </h4> -<p class="indh1">Grotius, II. c. 3, § 4—Vattel, I. § 287—Hall, § 27—Lawrence, §§ 86 and 91—Phillimore, -I. §§ 181-195—Twiss, I. § 185—Taylor, §§ 249-250—Wharton, -II. §§ 300-308—Wheaton, §§ 167-171—Moore, I. §§ 169-173—Bluntschli, -§ 307—Stoerk in Holtzendorff, II. pp. 504-507—Gareis, § 62—Liszt, § 35—Ullmann, -§ 103—Bonfils, Nos. 581-582, 595—Despagnet, Nos. 411-413—Mérignhac, -II. p. 531—Pradier-Fodéré, V. Nos. 2446-2458—Rivier, I. -pp. 243-245—Nys, II. pp. 165-169—Calvo, I. §§ 357-364—Fiore, II. Nos. -728-729, and Code, Nos. 995-999—Martens, I. § 98—Perels, § 20—Hall, -"Foreign Powers and Jurisdiction" (1894), § 107—David, "La pêche +<p class="indh1">Grotius, II. c. 3, § 4—Vattel, I. § 287—Hall, § 27—Lawrence, §§ 86 and 91—Phillimore, +I. §§ 181-195—Twiss, I. § 185—Taylor, §§ 249-250—Wharton, +II. §§ 300-308—Wheaton, §§ 167-171—Moore, I. §§ 169-173—Bluntschli, +§ 307—Stoerk in Holtzendorff, II. pp. 504-507—Gareis, § 62—Liszt, § 35—Ullmann, +§ 103—Bonfils, Nos. 581-582, 595—Despagnet, Nos. 411-413—Mérignhac, +II. p. 531—Pradier-Fodéré, V. Nos. 2446-2458—Rivier, I. +pp. 243-245—Nys, II. pp. 165-169—Calvo, I. §§ 357-364—Fiore, II. Nos. +728-729, and Code, Nos. 995-999—Martens, I. § 98—Perels, § 20—Hall, +"Foreign Powers and Jurisdiction" (1894), § 107—David, "La pêche maritime au point de vue international" (1897)—Fulton, "The Sovereignty of the Seas" (1911), pp. 57-534.</p> <div class="sidenote"><p>Fisheries in the Open Sea free to all Nations.</p></div> -<p>§ 281. Whereas the fisheries in the territorial maritime +<p>§ 281. Whereas the fisheries in the territorial maritime belt can be reserved by the littoral State for its own subjects, it is an inference of the freedom of the Open Sea that the fisheries thereon are open<a name="FNanchor_570_570" id="FNanchor_570_570"></a><a href="#Footnote_570_570" class="fnanchor">[570]</a> to vessels<span class="pagenum"><a name="Page_349" id="Page_349">[Pg 349]</a></span> @@ -18950,11 +18909,11 @@ fisheries in the North Sea and the suppression of the liquor trade among the fishing vessels in that Sea; secondly, with regard to the seal fisheries in the Behring Sea; thirdly, with regard to the fisheries around the -Faröe Islands and Iceland.</p> +Faröe Islands and Iceland.</p> <div class="footnote"><p><a name="Footnote_570_570" id="Footnote_570_570"></a><a href="#FNanchor_570_570"><span class="label">[570]</span></a> Denmark silently, by fishing regulations of 1872, dropped her claim to an exclusive right of fisheries within twenty miles of the -coast of Iceland; see Hall, § 40, p. 153, note 2. Russia promulgated, in +coast of Iceland; see Hall, § 40, p. 153, note 2. Russia promulgated, in 1911, a statute forbidding the fisheries to foreign vessels within twelve miles of the shore of the White Sea, but the Powers protested against this encroachment upon the freedom of the Open Sea; the matter @@ -18980,8 +18939,8 @@ fishery will be territorial even though the shallowness of the water may allow it to be practised beyond the limit which the State in question generally fixes for the littoral seas, as in the case of Ceylon it is practised beyond the three miles limit generally recognised by Great -Britain. 'Qui doutera,' says Vattel (I. § 28), 'que les pêcheries de -Bahrein et de Ceylon ne puissent légitimement tomber en propriété?' And +Britain. 'Qui doutera,' says Vattel (I. § 28), 'que les pêcheries de +Bahrein et de Ceylon ne puissent légitimement tomber en propriété?' And the territorial nature of the industry will carry with it, as being necessary for its protection, the territorial character of the spot." This opinion of Westlake coincides with that contended by Great Britain @@ -18997,7 +18956,7 @@ p. 203.</p></div> <div class="sidenote"><p>Fisheries in the North Sea.</p></div> -<p>§ 282. <a name="For_the_purpose_of_regulating_the_fisheries282" id="For_the_purpose_of_regulating_the_fisheries282"></a>For the purpose of regulating the fisheries in +<p>§ 282. <a name="For_the_purpose_of_regulating_the_fisheries282" id="For_the_purpose_of_regulating_the_fisheries282"></a>For the purpose of regulating the fisheries in the North Sea, an International Conference took place at the Hague in 1881 and again in 1882, at which Great Britain, Belgium, Denmark, France, Germany, Holland, @@ -19011,8 +18970,8 @@ contains the following stipulations:<a name="FNanchor_572_572" id="FNanchor_572_ <div class="footnote"><p><a name="Footnote_571_571" id="Footnote_571_571"></a><a href="#FNanchor_571_571"><span class="label">[571]</span></a> Martens, N.R.G. 2nd Ser. IX. p. 556.</p></div> -<div class="footnote"><p><a name="Footnote_572_572" id="Footnote_572_572"></a><a href="#FNanchor_572_572"><span class="label">[572]</span></a> The matter is exhaustively treated by Rykere, "Le régime -légal de la pêche maritime dans la Mer du Nord" (1901). To carry out the +<div class="footnote"><p><a name="Footnote_572_572" id="Footnote_572_572"></a><a href="#FNanchor_572_572"><span class="label">[572]</span></a> The matter is exhaustively treated by Rykere, "Le régime +légal de la pêche maritime dans la Mer du Nord" (1901). To carry out the obligations undertaken by her in the Convention for the regulation of the fisheries in the North Sea, Great Britain enacted in 1883 the "Act to carry into effect an International Convention concerning the @@ -19050,7 +19009,7 @@ special public cruisers of the Powers (article 33).<span class="pagenum"><a name <div class="sidenote"><p>Bumboats in the North Sea.</p></div> -<p>§ 283. <a name="Connected_with_the_regulation283" id="Connected_with_the_regulation283"></a>Connected with the regulation of the fisheries +<p>§ 283. <a name="Connected_with_the_regulation283" id="Connected_with_the_regulation283"></a>Connected with the regulation of the fisheries is the abolition of the liquor trade among the fishing vessels in the North Sea. Since serious quarrels and difficulties were caused through bumboats and floating @@ -19097,7 +19056,7 @@ N.R.G. 2nd Ser. XXII. p. 565.)</p></div> <div class="sidenote"><p>Seal Fisheries in Behring Sea.</p></div> -<p>§ 284. <a name="In_1886_a_conflict284" id="In_1886_a_conflict284"></a>In 1886 a conflict arose between Great Britain<span class="pagenum"><a name="Page_352" id="Page_352">[Pg 352]</a></span> +<p>§ 284. <a name="In_1886_a_conflict284" id="In_1886_a_conflict284"></a>In 1886 a conflict arose between Great Britain<span class="pagenum"><a name="Page_352" id="Page_352">[Pg 352]</a></span> and the United States through the seizure and confiscation of British-Columbian vessels which had hunted seals in the Behring Sea outside the American territorial @@ -19129,8 +19088,8 @@ the arbitrators, but only Italy<a name="FNanchor_579_579" id="FNanchor_579_579"> Martens, N.R.G. 2nd Ser. XXI. p. 439. The award is discussed by Barclay in R.I. XXV. (1893), p. 417, and Engelhardt in R.I. XXVI. (1894), p. 386, and R.G. V. (1898), pp. 193 and 347. See also -Tillier, "Les Pêcheries de Phoques de la Mer de Behring" (1906), and -Balch, "L'évolution de l'Arbitrage International" (1908), pp. 70-91.</p></div> +Tillier, "Les Pêcheries de Phoques de la Mer de Behring" (1906), and +Balch, "L'évolution de l'Arbitrage International" (1908), pp. 70-91.</p></div> <div class="footnote"><p><a name="Footnote_578_578" id="Footnote_578_578"></a><a href="#FNanchor_578_578"><span class="label">[578]</span></a> See the Behring Sea Award Act, 1894 (57 Vict. c. 2).</p></div> @@ -19153,12 +19112,12 @@ upon.</p> and it has not yet been ratified.]</p> <div class="footnote"><p><a name="Footnote_580_580" id="Footnote_580_580"></a><a href="#FNanchor_580_580"><span class="label">[580]</span></a> See - below, § <a href="#In_behalf_of_the_prevention2of593">593, No. 2</a>.</p></div> + below, § <a href="#In_behalf_of_the_prevention2of593">593, No. 2</a>.</p></div> -<div class="sidenote"><p>Fisheries around the Faröe Islands and Iceland.</p></div> +<div class="sidenote"><p>Fisheries around the Faröe Islands and Iceland.</p></div> -<p>§ 285. For the purpose of regulating the fisheries -outside territorial waters around the Faröe Islands and +<p>§ 285. For the purpose of regulating the fisheries +outside territorial waters around the Faröe Islands and Iceland, Great Britain and Denmark signed on June 24, 1901, the Convention of London,<a name="FNanchor_581_581" id="FNanchor_581_581"></a><a href="#Footnote_581_581" class="fnanchor">[581]</a> whose stipulations are for the most part literally the same as those of the @@ -19166,14 +19125,14 @@ International Convention for the Regulation of the Fisheries in the North Sea, concluded at the Hague in 1882.<a name="FNanchor_582_582" id="FNanchor_582_582"></a><a href="#Footnote_582_582" class="fnanchor">[582]</a> The additional article of this Convention of London stipulates that any other State whose subjects -fish around the Faröe Islands and Iceland may accede +fish around the Faröe Islands and Iceland may accede to it.</p> <div class="footnote"><p><a name="Footnote_581_581" id="Footnote_581_581"></a><a href="#FNanchor_581_581"><span class="label">[581]</span></a> See Martens, N.R.G. 2nd Ser. XXXIII. (1906), p. 268.</p></div> <div class="footnote"><p><a name="Footnote_582_582" id="Footnote_582_582"></a><a href="#FNanchor_582_582"><span class="label">[582]</span></a> See - above, § <a href="#For_the_purpose_of_regulating_the_fisheries282">282</a>.</p></div> + above, § <a href="#For_the_purpose_of_regulating_the_fisheries282">282</a>.</p></div> @@ -19183,19 +19142,19 @@ to it.</p> <span class="smaller">TELEGRAPH CABLES IN THE OPEN SEA</span> </h4> -<p class="indh1">Bonfils, No. 583—Despagnet, No. 401—Pradier-Fodéré, V. No. 2548—Mérignhac, +<p class="indh1">Bonfils, No. 583—Despagnet, No. 401—Pradier-Fodéré, V. No. 2548—Mérignhac, II. p. 532—Nys, II. p. 170—Rivier, I. pp. 244 and 386—Fiore, II. No. 822, and Code, Nos. 1134-1137—Stoerk in Holtzendorff, -II. pp. 507-508—Liszt, § 29—Ullmann, § 103—Lauterbach, "Die -Beschädigung unterseeischer Telegraphenkabel" (1889)—Landois, "Zur -Lehre vom völkerrechtlichen Schutz der submarinen Telegraphenkabel" -(1894)—Jouhannaud, "Les câbles sous-marins" (1904)—Renault, in R.I. +II. pp. 507-508—Liszt, § 29—Ullmann, § 103—Lauterbach, "Die +Beschädigung unterseeischer Telegraphenkabel" (1889)—Landois, "Zur +Lehre vom völkerrechtlichen Schutz der submarinen Telegraphenkabel" +(1894)—Jouhannaud, "Les câbles sous-marins" (1904)—Renault, in R.I. XII. (1880), p. 251, XV. (1883), p. 17. See also the literature quoted - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#As214">vol. II., at the commencement of § 214</a>.</p> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#As214">vol. II., at the commencement of § 214</a>.</p> <div class="sidenote"><p>Telegraph cables in the Open Sea admitted.</p></div> -<p>§ 286. <a name="It286" id="It286"></a>It is a consequence of the freedom of the +<p>§ 286. <a name="It286" id="It286"></a>It is a consequence of the freedom of the Open Sea that no State can prevent another from laying telegraph and telephone cables in any part of the Open Sea, whereas no State need allow this within its territorial @@ -19231,7 +19190,7 @@ acceded to it later on.</p> <div class="sidenote"><p>International Protection of Submarine Telegraph Cables.</p></div> -<p>§ 287. <a name="Th287" id="Th287"></a>The protection afforded to submarine telegraph +<p>§ 287. <a name="Th287" id="Th287"></a>The protection afforded to submarine telegraph cables finds its expression in the following stipulations of this international treaty:—</p> @@ -19264,7 +19223,7 @@ only and in no wise restrict the action of belligerents during time of war.<a name="FNanchor_586_586" id="FNanchor_586_586"></a><a href="#Footnote_586_586" class="fnanchor">[586]</a></p> <div class="footnote"><p><a name="Footnote_586_586" id="Footnote_586_586"></a><a href="#FNanchor_586_586"><span class="label">[586]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#As214">vol. II. § 214</a>, and art. 54 of the Hague rules + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#As214">vol. II. § 214</a>, and art. 54 of the Hague rules concerning land warfare which enacts:—"Submarine cables connecting a territory occupied with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They also must be @@ -19279,10 +19238,10 @@ restored and indemnities for them regulated at the peace."</p></div> </h4> -<p class="indh1">Bonfils, Nos. 531<span class="topnum">10, 11</span>—Despagnet, 433<span class="topnum">quater</span>—Liszt, § 29—Ullmann, § 147—Meili, +<p class="indh1">Bonfils, Nos. 531<span class="topnum">10, 11</span>—Despagnet, 433<span class="topnum">quater</span>—Liszt, § 29—Ullmann, § 147—Meili, "Die drahtlose Telegraphie, &c." (1908)—Schneeli, "Drahtlose -Telegraphie und Völkerrecht" (1908)—Landsberg, "Die drahtlose Telegraphie" -(1909)—Kausen, "Die drahtlose Telegraphie im Völkerrecht" +Telegraphie und Völkerrecht" (1908)—Landsberg, "Die drahtlose Telegraphie" +(1909)—Kausen, "Die drahtlose Telegraphie im Völkerrecht" (1910)—Rolland in R.G. XIII. (1906), pp. 58-92—Fauchille in Annuaire, XXI. (1906), pp. 76-87—Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.</p> @@ -19292,7 +19251,7 @@ between ships and the shore.</p></div> -<p>§ 287<i>a</i>. <a name="To287a" id="To287a"></a>To secure radio-telegraphic<a name="FNanchor_587_587" id="FNanchor_587_587"></a><a href="#Footnote_587_587" class="fnanchor">[587]</a> communication +<p>§ 287<i>a</i>. <a name="To287a" id="To287a"></a>To secure radio-telegraphic<a name="FNanchor_587_587" id="FNanchor_587_587"></a><a href="#Footnote_587_587" class="fnanchor">[587]</a> communication between ships of all nations at sea and the continents, a Conference met at Berlin in 1906, where Great Britain, Germany, the United States of America, Argentina, @@ -19325,8 +19284,8 @@ every kind concerning radio-telegraphy, and for some other purposes mentioned in article 13.</p> <div class="footnote"><p><a name="Footnote_587_587" id="Footnote_587_587"></a><a href="#FNanchor_587_587"><span class="label">[587]</span></a> See - above, § <a href="#The_subsoil173">173</a>, and - below, §§ <a href="#In_1868_the_international464">464</a> + above, § <a href="#The_subsoil173">173</a>, and + below, §§ <a href="#In_1868_the_international464">464</a> and <a href="#A_general_radio4of582">582, No. 4</a>.</p></div> <div class="footnote"><p><a name="Footnote_588_588" id="Footnote_588_588"></a><a href="#FNanchor_588_588"><span class="label">[588]</span></a> See @@ -19341,10 +19300,10 @@ Telegraphy Co.</p></div> <div class="sidenote"><p>Radio-telegraphy between ships at sea.</p></div> -<p>§ 287<i>b</i>. <a name="To_secure_radio287b" id="To_secure_radio287b"></a>To secure radio-telegraphic communication +<p>§ 287<i>b</i>. <a name="To_secure_radio287b" id="To_secure_radio287b"></a>To secure radio-telegraphic communication between such ships at sea as possess installations for wireless telegraphy, an Additional Convention<a name="FNanchor_589_589" id="FNanchor_589_589"></a><a href="#Footnote_589_589" class="fnanchor">[589]</a> to that -mentioned above in § <a href="#Th287">287</a><i>a</i> was signed on November 3, +mentioned above in § <a href="#Th287">287</a><i>a</i> was signed on November 3, 1906, by all the Powers who signed the forementioned Convention except by Great Britain, Italy, Japan, Mexico, Persia, and Portugal. According to this additional @@ -19389,7 +19348,7 @@ wireless apparatus other than the Marconi.</p> <div class="sidenote"><p>Five rules concerning the subsoil beneath the Sea Bed.</p></div> -<p>§ 287<i>c</i>. <a name="The_subsoil287c" id="The_subsoil287c"></a>The subsoil beneath the bed of the Open Sea +<p>§ 287<i>c</i>. <a name="The_subsoil287c" id="The_subsoil287c"></a>The subsoil beneath the bed of the Open Sea requires special consideration on account of coal or other mines, tunnels, and the like, for the question is whether such buildings can be driven into that subsoil @@ -19422,13 +19381,13 @@ five rules recommend themselves concerning this subject:—</p> <div class="footnote"><p><a name="Footnote_591_591" id="Footnote_591_591"></a><a href="#FNanchor_591_591"><span class="label">[591]</span></a> See - above, §§ <a href="#The_subsoil173">173</a>, 175.</p></div> + above, §§ <a href="#The_subsoil173">173</a>, 175.</p></div> <div class="footnote"><p><a name="Footnote_592_592" id="Footnote_592_592"></a><a href="#FNanchor_592_592"><span class="label">[592]</span></a> See Oppenheim in Z.V. II. (1908), p. 11.</p></div> <div class="footnote"><p><a name="Footnote_593_593" id="Footnote_593_593"></a><a href="#FNanchor_593_593"><span class="label">[593]</span></a> See - above, § <a href="#Grotius_and_many_writers259">259</a>.</p></div> + above, § <a href="#Grotius_and_many_writers259">259</a>.</p></div> <p>(1) The subsoil beneath the bed of the Open Sea is no man's land, and it can be acquired on the part of @@ -19474,7 +19433,7 @@ runs under the bed of the Open Sea.</p> <div class="sidenote"><p>The proposed Channel Tunnel.</p></div> -<p>§ 287<i>d</i>. <a name="Since_there_is287d" id="Since_there_is287d"></a>Since there is as yet no submarine tunnel in +<p>§ 287<i>d</i>. <a name="Since_there_is287d" id="Since_there_is287d"></a>Since there is as yet no submarine tunnel in existence, it is of interest to give some details concerning the project of a Channel Tunnel<a name="FNanchor_594_594" id="FNanchor_594_594"></a><a href="#Footnote_594_594" class="fnanchor">[594]</a> between Dover and Calais, and the preliminary arrangements between @@ -19497,7 +19456,7 @@ the following:—</p> <div class="footnote"><p><a name="Footnote_594_594" id="Footnote_594_594"></a><a href="#FNanchor_594_594"><span class="label">[594]</span></a> See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G. -XV. (1908), pp. 50-77; and Liszt, § 26.</p></div> +XV. (1908), pp. 50-77; and Liszt, § 26.</p></div> <div class="footnote"><p><a name="Footnote_595_595" id="Footnote_595_595"></a><a href="#FNanchor_595_595"><span class="label">[595]</span></a> See Parliamentary Papers, C. 1576, Report of the @@ -19574,20 +19533,20 @@ undergone a change.<span class="pagenum"><a name="Page_362" id="Page_362">[Pg 36 <span class="smaller">POSITION OF INDIVIDUALS IN INTERNATIONAL LAW</span> </h4> -<p class="indh1">Lawrence, § 42—Taylor, § 171—Heffter, § 58—Stoerk in Holtzendorff, II. pp. -585-592—Gareis, § 53—Liszt, §§ 5 and 11—Ullmann, § 107—Bonfils, Nos. -397-409—Despagnet, No. 328—Mérignhac, II. pp. 169-172—Pradier-Fodéré, -I. Nos. 43-49—Fiore, II. Nos. 568-712—Martens, I. §§ 85-86—Jellinek, -"System der subjectiven öffentlichen Rechte" (1892), pp. 310-314—Heilborn, +<p class="indh1">Lawrence, § 42—Taylor, § 171—Heffter, § 58—Stoerk in Holtzendorff, II. pp. +585-592—Gareis, § 53—Liszt, §§ 5 and 11—Ullmann, § 107—Bonfils, Nos. +397-409—Despagnet, No. 328—Mérignhac, II. pp. 169-172—Pradier-Fodéré, +I. Nos. 43-49—Fiore, II. Nos. 568-712—Martens, I. §§ 85-86—Jellinek, +"System der subjectiven öffentlichen Rechte" (1892), pp. 310-314—Heilborn, "System," pp. 58-138—Kaufmann, "Die Rechtskraft des -Internationalen Rechtes" (1899)—Buonvino, "Diritto e personalità +Internationalen Rechtes" (1899)—Buonvino, "Diritto e personalità giuridica internazionale" (1910)—Rehm and Adler in Z.V. II. (1908), pp. 53-55 and 614-618—Kohler in Z.V. III. (1909), pp. 209-230—Diena in R.G. XVI. (1909), pp. 57-76.</p> <div class="sidenote"><p>Importance of Individuals to the Law of Nations.</p></div> -<p>§ 288. The importance of individuals to the Law +<p>§ 288. The importance of individuals to the Law of Nations is just as great as that of territory, for individuals are the personal basis of every State. Just as a State cannot exist without a territory, so it cannot @@ -19601,7 +19560,7 @@ individuals.</p> <div class="sidenote"><p>Individuals never Subjects of the Law of Nations.</p></div> -<p>§ 289. <a name="No289" id="No289"></a>Now, what is the position of individuals in +<p>§ 289. <a name="No289" id="No289"></a>Now, what is the position of individuals in International Law according to these rules? Since the Law of Nations is a law between States only and exclusively, States only and exclusively<a name="FNanchor_597_597" id="FNanchor_597_597"></a><a href="#Footnote_597_597" class="fnanchor">[597]</a> are subjects @@ -19641,7 +19600,7 @@ Law.</p> <div class="footnote"><p><a name="Footnote_597_597" id="Footnote_597_597"></a><a href="#FNanchor_597_597"><span class="label">[597]</span></a> See - above, §§ <a href="#Since_the_Law_of13">13</a> + above, §§ <a href="#Since_the_Law_of13">13</a> and <a href="#Th63">63</a>.</p></div> <p>And the same is valid as regards special rights of @@ -19656,7 +19615,7 @@ calling these rights into existence by their Municipal Laws.<a name="FNanchor_598_598" id="FNanchor_598_598"></a><a href="#Footnote_598_598" class="fnanchor">[598]</a></p> <div class="footnote"><p><a name="Footnote_598_598" id="Footnote_598_598"></a><a href="#FNanchor_598_598"><span class="label">[598]</span></a> The whole matter is treated with great lucidity by -Jellinek, "System der subjectiven öffentlichen Rechte" (1892), pp. +Jellinek, "System der subjectiven öffentlichen Rechte" (1892), pp. 310-314, and Heilborn, "System," pp. 58-138.</p></div> <p>Again, in those rare cases in which States stipulate @@ -19694,7 +19653,7 @@ it by the Treaty of Vienna of 1878.<a name="FNanchor_600_600" id="FNanchor_600_6 <div class="footnote"><p><a name="Footnote_600_600" id="Footnote_600_600"></a><a href="#FNanchor_600_600"><span class="label">[600]</span></a> It ought to be mentioned that the opinion presented in the text concerning the impossibility for individuals to be subjects of International Law, which is now mostly upheld, is vigorously opposed by -Kaufmann, "Die Rechtskraft des internationalen Rechtes" (1899), §§ 1-4, +Kaufmann, "Die Rechtskraft des internationalen Rechtes" (1899), §§ 1-4, and a few others.<span class="pagenum"><a name="Page_365" id="Page_365">[Pg 365]</a></span></p></div> <p>Now it is maintained<a name="FNanchor_601_601" id="FNanchor_601_601"></a><a href="#Footnote_601_601" class="fnanchor">[601]</a> that, although individuals @@ -19733,12 +19692,12 @@ within the province of Municipal Law.</p> <div class="footnote"><p><a name="Footnote_601_601" id="Footnote_601_601"></a><a href="#FNanchor_601_601"><span class="label">[601]</span></a> See Diena in R.G. XVI. (1909), pp. 57-76; Rehm and Adler in -Z.V. I. (1908), pp. 53 and 614; Liszt, § 5; Kohler in Z.V. II. (1909), +Z.V. I. (1908), pp. 53 and 614; Liszt, § 5; Kohler in Z.V. II. (1909), pp. 209-230.</p></div> <div class="sidenote"><p>Individuals Objects of the Law of Nations.</p></div> -<p>§ 290. <a name="But_what_is_the_real290" id="But_what_is_the_real290"></a>But what is the real position of individuals<span class="pagenum"><a name="Page_366" id="Page_366">[Pg 366]</a></span> +<p>§ 290. <a name="But_what_is_the_real290" id="But_what_is_the_real290"></a>But what is the real position of individuals<span class="pagenum"><a name="Page_366" id="Page_366">[Pg 366]</a></span> in International Law, if they are not subjects thereof? The answer can only be that they are <i>objects</i> of the Law of Nations. They appear as such from many @@ -19770,7 +19729,7 @@ standpoint is taken up by Lorimer, II. p. 131, and Holland, <div class="sidenote"><p>Nationality the Link between Individuals and the Law of Nations.</p></div> -<p>§ 291. <a name="If_as_stated_individuals291" id="If_as_stated_individuals291"></a>If, as stated, individuals are never subjects +<p>§ 291. <a name="If_as_stated_individuals291" id="If_as_stated_individuals291"></a>If, as stated, individuals are never subjects but always objects of the Law of Nations, then nationality is the link between this law and individuals. It is through the medium of their nationality only that @@ -19797,7 +19756,7 @@ And so distinct is the position as subjects of these members from the position of stateless individuals and from subjects of States outside the Family of Nations, that it has been correctly characterised as a kind of -international "indigenousness," a <i>Völkerrechts-Indigenat</i>.<a name="FNanchor_605_605" id="FNanchor_605_605"></a><a href="#Footnote_605_605" class="fnanchor">[605]</a> +international "indigenousness," a <i>Völkerrechts-Indigenat</i>.<a name="FNanchor_605_605" id="FNanchor_605_605"></a><a href="#Footnote_605_605" class="fnanchor">[605]</a> Just as municipal citizenship procures for an individual the enjoyment of the benefits of the Municipal Laws, so this international "indigenousness," @@ -19806,10 +19765,10 @@ procures the enjoyment of the benefits of the Law of Nations.</p> <div class="footnote"><p><a name="Footnote_603_603" id="Footnote_603_603"></a><a href="#FNanchor_603_603"><span class="label">[603]</span></a> See - below, § <a href="#It_will_be_remembered294">294</a>.</p></div> + below, § <a href="#It_will_be_remembered294">294</a>.</p></div> <div class="footnote"><p><a name="Footnote_604_604" id="Footnote_604_604"></a><a href="#FNanchor_604_604"><span class="label">[604]</span></a> See - below, § <a href="#That_stateless_individuals312">312</a>.</p></div> + below, § <a href="#That_stateless_individuals312">312</a>.</p></div> <div class="footnote"><p><a name="Footnote_605_605" id="Footnote_605_605"></a><a href="#FNanchor_605_605"><span class="label">[605]</span></a> See Stoerk in Holtzendorff, II. @@ -19817,7 +19776,7 @@ p. 588.</p></div> <div class="sidenote"><p>The Law of Nations and the Rights of Mankind.</p></div> -<p>§ 292. <a name="Several_writ292" id="Several_writ292"></a>Several writers<a name="FNanchor_606_606" id="FNanchor_606_606"></a><a href="#Footnote_606_606" class="fnanchor">[606]</a> maintain that the Law of +<p>§ 292. <a name="Several_writ292" id="Several_writ292"></a>Several writers<a name="FNanchor_606_606" id="FNanchor_606_606"></a><a href="#Footnote_606_606" class="fnanchor">[606]</a> maintain that the Law of Nations guarantees to every individual at home and abroad the so-called rights of mankind, without regarding whether an individual be stateless or not, or @@ -19867,7 +19826,7 @@ classes of subjects are forcibly submitted within certain States show that the Law of Nations really comprises such guarantee.<a name="FNanchor_610_610" id="FNanchor_610_610"></a><a href="#Footnote_610_610" class="fnanchor">[610]</a></p> -<div class="footnote"><p><a name="Footnote_606_606" id="Footnote_606_606"></a><a href="#FNanchor_606_606"><span class="label">[606]</span></a> Bluntschli, §§ <a href="#Right_of_legation360">360</a>-363 and 370; Martens, I. §§ 85 and 86; +<div class="footnote"><p><a name="Footnote_606_606" id="Footnote_606_606"></a><a href="#FNanchor_606_606"><span class="label">[606]</span></a> Bluntschli, §§ <a href="#Right_of_legation360">360</a>-363 and 370; Martens, I. §§ 85 and 86; Fiore, I. Nos. 684-712, and Code, Nos. 614-669; Bonfils, No. 397, and others.</p></div> @@ -19884,13 +19843,13 @@ the General Act of the Congo Conference of Berlin, 1885, whose article 9 deals with the slave trade; (3) the General Act of the anti-slavery Conference of Brussels, 1890, which is signed by Great Britain, Austria-Hungary, Belgium, the Congo Free State, Denmark, France, (see, -however, below, § <a href="#It_follows_from517">517</a>), Germany, Holland, Italy, Luxemburg, Persia, +however, below, § <a href="#It_follows_from517">517</a>), Germany, Holland, Italy, Luxemburg, Persia, Portugal, Russia, Spain, Sweden, Norway, the United States, Turkey, and Zanzibar. See Queneuil, "De la traite des noirs et de l'esclavage" (1907).</p></div> <div class="footnote"><p><a name="Footnote_609_609" id="Footnote_609_609"></a><a href="#FNanchor_609_609"><span class="label">[609]</span></a> See - above, § <a href="#Ma137">137</a>.</p></div> + above, § <a href="#Ma137">137</a>.</p></div> <div class="footnote"><p><a name="Footnote_610_610" id="Footnote_610_610"></a><a href="#FNanchor_610_610"><span class="label">[610]</span></a> The reader may think of the sad position of the Jews within the Russian Empire. The treatment of the native Jews in Roumania, @@ -19898,7 +19857,7 @@ although the Powers have, according to the spirit of article 44 of the Treaty of Berlin of 1878, a right of intervention, shows even more clearly that the Law of Nations does not guarantee what are called rights of mankind. See - below, § <a href="#That_stateless_individuals312">312</a>.</p></div> + below, § <a href="#That_stateless_individuals312">312</a>.</p></div> @@ -19908,20 +19867,20 @@ rights of mankind. See </h4> -<p class="indh1">Vattel, I. §§ 220-226—Hall, §§ 66 and 87—Westlake, I. pp. 213, 231-233—Halleck, -I. p. 401—Taylor, §§ 172-178—Moore, III. §§ 372-376—Bluntschli, -§§ 364-380—Stoerk in Holtzendorff, II. pp. 630-650—Gareis, -§ 54—Liszt, § 11—Ullmann, § 108—Bonfils, Nos. 433-454—Despagnet, -Nos. 329-333—Pradier-Fodéré, III. No. 1645—Rivier, I. p. 303—Nys, II. -pp. 214-220, 229-237—Calvo, II. §§ 539-540—Fiore, I. Nos. 644-658, -684-717, and Code, Nos. 638-641—Martens, I. §§ 85-87—Hall, "Foreign -Powers and Jurisdiction" (1894), § 14—Cogordan, "La nationalité au +<p class="indh1">Vattel, I. §§ 220-226—Hall, §§ 66 and 87—Westlake, I. pp. 213, 231-233—Halleck, +I. p. 401—Taylor, §§ 172-178—Moore, III. §§ 372-376—Bluntschli, +§§ 364-380—Stoerk in Holtzendorff, II. pp. 630-650—Gareis, +§ 54—Liszt, § 11—Ullmann, § 108—Bonfils, Nos. 433-454—Despagnet, +Nos. 329-333—Pradier-Fodéré, III. No. 1645—Rivier, I. p. 303—Nys, II. +pp. 214-220, 229-237—Calvo, II. §§ 539-540—Fiore, I. Nos. 644-658, +684-717, and Code, Nos. 638-641—Martens, I. §§ 85-87—Hall, "Foreign +Powers and Jurisdiction" (1894), § 14—Cogordan, "La nationalité au point de vue des rapports internationaux" (2nd ed. 1890)—Gargas in Z.V. V. (1911), pp. 278-316 and....</p> <div class="sidenote"><p>Conception of Nationality.</p></div> -<p>§ 293. Nationality of an individual is his quality of +<p>§ 293. Nationality of an individual is his quality of being a subject of a certain State and therefore its citizen. It is not for International but for Municipal Law to determine who is and who is not to be considered @@ -19949,8 +19908,8 @@ made use of in the theory and practice of International Law.</p> <div class="footnote"><p><a name="Footnote_611_611" id="Footnote_611_611"></a><a href="#FNanchor_611_611"><span class="label">[611]</span></a> See - below, § <a href="#The_present_law307">307</a>, and Hall, "Foreign Powers and -Jurisdiction," § 20, who quotes, however, a decision of the French Cour + below, § <a href="#The_present_law307">307</a>, and Hall, "Foreign Powers and +Jurisdiction," § 20, who quotes, however, a decision of the French Cour de Cassation according to which naturalisation in a British Colony does not constitute a real naturalisation. But this decision is based on the Code Civil of France and has nothing to do with the Law of Nations. See @@ -19971,7 +19930,7 @@ Prussia, either of Russian, Austrian, or German nationality <div class="sidenote"><p>Function of Nationality.</p></div> -<p>§ 294. <a name="It_will_be_remembered294" id="It_will_be_remembered294"></a>It will be remembered that nationality is<span class="pagenum"><a name="Page_371" id="Page_371">[Pg 371]</a></span> +<p>§ 294. <a name="It_will_be_remembered294" id="It_will_be_remembered294"></a>It will be remembered that nationality is<span class="pagenum"><a name="Page_371" id="Page_371">[Pg 371]</a></span> the link between individuals and the benefits of the Law of Nations.<a name="FNanchor_612_612" id="FNanchor_612_612"></a><a href="#Footnote_612_612" class="fnanchor">[612]</a> This function of nationality becomes apparent with regard to individuals abroad, or property @@ -19982,7 +19941,7 @@ all other States this function of nationality becomes most conspicuous. The right is that of protection over its citizens abroad which every State holds and occasionally vigorously exercises towards other States; it -will be discussed in detail below, § <a href="#Although_aliens319">319</a>. The duty, on +will be discussed in detail below, § <a href="#Although_aliens319">319</a>. The duty, on the other hand, is that of receiving on its territory such citizens as are not allowed to remain<a name="FNanchor_613_613" id="FNanchor_613_613"></a><a href="#Footnote_613_613" class="fnanchor">[613]</a> on the territory of other States. Since no State is obliged by the Law @@ -19995,16 +19954,16 @@ States having a claim on the home State that the latter do receive the expelled individuals.<a name="FNanchor_614_614" id="FNanchor_614_614"></a><a href="#Footnote_614_614" class="fnanchor">[614]</a></p> <div class="footnote"><p><a name="Footnote_612_612" id="Footnote_612_612"></a><a href="#FNanchor_612_612"><span class="label">[612]</span></a> See - above, § <a href="#If_as_stated_individuals291">291</a>.</p></div> + above, § <a href="#If_as_stated_individuals291">291</a>.</p></div> <div class="footnote"><p><a name="Footnote_613_613" id="Footnote_613_613"></a><a href="#FNanchor_613_613"><span class="label">[613]</span></a> See - below, § <a href="#In_many_Continental_States326">326</a>.</p></div> + below, § <a href="#In_many_Continental_States326">326</a>.</p></div> <div class="footnote"><p><a name="Footnote_614_614" id="Footnote_614_614"></a><a href="#FNanchor_614_614"><span class="label">[614]</span></a> Beyond the right of protection and the duty to receive expelled citizens at home, the powers of a State over its citizens abroad in consequence of its personal supremacy illustrate the function of nationality. (See - above, § <a href="#Independence_and_territorial124">124</a>.) Thus, the home State can tax + above, § <a href="#Independence_and_territorial124">124</a>.) Thus, the home State can tax citizens living abroad in the interest of home finance, can request them to come home for the purpose of rendering military service, can punish them for crimes committed abroad, can categorically request them to come @@ -20012,9 +19971,9 @@ home for good (so-called <i>jus avocandi</i>). And no State has a right forcibly to retain foreign citizens called home by their home State, or to prevent them from paying taxes to their home State, and the like.</p></div> -<div class="sidenote"><p>So-called <i>Protégés</i> and <i>de facto</i> Subjects.</p></div> +<div class="sidenote"><p>So-called <i>Protégés</i> and <i>de facto</i> Subjects.</p></div> -<p>§ 295. Although nationality alone is the regular +<p>§ 295. Although nationality alone is the regular means through which individuals can derive benefit from the Law of Nations, there are two exceptional cases in which individuals may come under the international @@ -20023,7 +19982,7 @@ being really its subjects. It happens, first, that a State undertakes by an international agreement the diplomatic protection of another State's citizens abroad, and<span class="pagenum"><a name="Page_372" id="Page_372">[Pg 372]</a></span> in this case the protected foreign subjects are named -"<i>protégés</i>" of the protecting States. Such agreements +"<i>protégés</i>" of the protecting States. Such agreements are either concluded for a permanency as in the case of a small State, Switzerland for instance, having no diplomatic envoy in a certain foreign country where many @@ -20034,9 +19993,9 @@ the enemy State to a neutral State.</p> <p>It happens, secondly, that a State promises diplomatic protection within the boundaries of Turkey and other Oriental countries to certain natives. Such protected -natives are likewise named <i>protégés</i>, but they +natives are likewise named <i>protégés</i>, but they are also called "<i>de facto</i> subjects" of the protecting -State. The position of these <i>protégés</i> is quite anomalous, +State. The position of these <i>protégés</i> is quite anomalous, it is based on custom and treaties, and no special rules of the Law of Nations itself are in existence concerning such <i>de facto</i> subjects. Every State @@ -20054,7 +20013,7 @@ France, Germany, Holland, Italy, Portugal, Spain, Sweden-Norway, and the United States of America, which sanctions the stipulations of the treaty of 1863 between France and Morocco concerning the same -subject. According to this treaty the term "<i>protégé</i>" +subject. According to this treaty the term "<i>protégé</i>" embraces<a name="FNanchor_616_616" id="FNanchor_616_616"></a><a href="#Footnote_616_616" class="fnanchor">[616]</a> in relation to States of Capitulations only<span class="pagenum"><a name="Page_373" id="Page_373">[Pg 373]</a></span> the following classes of persons:—(1) Persons being subjects of a country which is under the protectorate @@ -20062,12 +20021,12 @@ of the Power whose protection they claim; (2) individuals corresponding to the classes enumerated in the treaties with Morocco of 1863 and 1880 and in the Ottoman law of 1863; (3) persons, who under a special -treaty have been recognised as <i>protégés</i> like those +treaty have been recognised as <i>protégés</i> like those enumerated by article 4 of the French Muscat Convention of 1844; and (4) those individuals who can establish that they had been considered and treated -as <i>protégés</i> by the Power in question before the year -in which the creation of new <i>protégés</i> was regulated +as <i>protégés</i> by the Power in question before the year +in which the creation of new <i>protégés</i> was regulated and limited—that is to say, before the year 1863, these individuals not having lost the <i>status</i> they had once legitimately acquired.</p> @@ -20081,10 +20040,10 @@ in 1905, of the Hague Court of Arbitration in the case of France <i>v.</i> Great Britain concerning the Muscat Dhows. </p><p> It is of interest to note that the Court considers it a fact that the -Powers have no longer the right to create <i>protégés</i> in unlimited +Powers have no longer the right to create <i>protégés</i> in unlimited numbers in any of the Oriental States, for the Award states on p. 56:—"Although the Powers have <i>expressis verbis</i> resigned the exercise -of the pretended right to create '<i>protégés</i>' in unlimited number only +of the pretended right to create '<i>protégés</i>' in unlimited number only in relation to Turkey and Morocco, nevertheless the exercise of this pretended right has been abandoned also in relation to other Oriental States, analogy having always been recognised as a means to complete the @@ -20093,7 +20052,7 @@ circumstances are analogous."</p></div> <div class="sidenote"><p>Nationality and Emigration.</p></div> -<p>§ 296. As emigration comprises the voluntary removal +<p>§ 296. As emigration comprises the voluntary removal of an individual from his home State with the intention of residing abroad, but not necessarily with the intention of renouncing his nationality, it is obvious @@ -20116,8 +20075,8 @@ State.<a name="FNanchor_617_617" id="FNanchor_617_617"></a><a href="#Footnote_61 protection of the interests of emigrants and immigrants from the moral, hygienic, and economic view, the Institute of International Law, at its meeting at Copenhagen in 1897, adopted a body of fourteen principles -concerning emigration under the heading "Vœux relatifs à la matière -de l'émigration"; see Annuaire, XVI. (1897), p. 276. See also Gargas in +concerning emigration under the heading "Vœux relatifs à la matière +de l'émigration"; see Annuaire, XVI. (1897), p. 276. See also Gargas in Z.V. V. (1911), pp. 278-316.</p></div> @@ -20127,22 +20086,22 @@ Z.V. V. (1911), pp. 278-316.</p></div> <span class="smaller">MODES OF ACQUIRING AND LOSING NATIONALITY</span> </h4> -<p class="indh1">Vattel, I. §§ 212-219—Hall, §§ 67-72—Westlake, I. pp. 213-220—Lawrence, -§§ 94-95—Halleck, I. pp. 402-418—Moore, III. §§ 372-473—Taylor, -§§ 176-183—Walker, § 19—Bluntschli, §§ 364-373—Hartmann, § 81—Heffter, -§ 59—Stoerk in Holtzendorff, II. pp. 592-630—Gareis, § 55—Liszt, -§ 11—Ullmann, §§ 110 and 112—Bonfils, Nos. 417-432—Despagnet, -Nos. 318-327—Pradier-Fodéré, III. Nos. 1646-1691—Rivier, I. pp. 303-306—Calvo, -II. §§ 541-654, VI. §§ 92-117—Martens, II. §§ 44-48—Fiore, +<p class="indh1">Vattel, I. §§ 212-219—Hall, §§ 67-72—Westlake, I. pp. 213-220—Lawrence, +§§ 94-95—Halleck, I. pp. 402-418—Moore, III. §§ 372-473—Taylor, +§§ 176-183—Walker, § 19—Bluntschli, §§ 364-373—Hartmann, § 81—Heffter, +§ 59—Stoerk in Holtzendorff, II. pp. 592-630—Gareis, § 55—Liszt, +§ 11—Ullmann, §§ 110 and 112—Bonfils, Nos. 417-432—Despagnet, +Nos. 318-327—Pradier-Fodéré, III. Nos. 1646-1691—Rivier, I. pp. 303-306—Calvo, +II. §§ 541-654, VI. §§ 92-117—Martens, II. §§ 44-48—Fiore, Code, Nos. 660-669—Foote, "Private International Jurisprudence" (3rd ed. 1904), pp. 1-52—Dicey, "Conflict of Laws" (1896), pp. 173-204—Martitz, -"Das Recht der Staatsangehörigkeit im internationalen -Verkehr" (1885)—Cogordan, "La nationalité, &c" (2nd ed. 1890), pp. -21-116, 317-400—Lapradelle, "De la nationalité d'origine" (1893)—Berney, -"La nationalité à l'Institut de Droit International" (1897)—Bisocchi, -"Acquisto e perdita della Nazionalità, &c." (1907)—Sieber, -"Das Staatsbürgerrecht in internationalem Verkehr," 2 vols. (1907)—Lehr, -"La nationalité dans les principaux états du globe" (1909), and +"Das Recht der Staatsangehörigkeit im internationalen +Verkehr" (1885)—Cogordan, "La nationalité, &c" (2nd ed. 1890), pp. +21-116, 317-400—Lapradelle, "De la nationalité d'origine" (1893)—Berney, +"La nationalité à l'Institut de Droit International" (1897)—Bisocchi, +"Acquisto e perdita della Nazionalità , &c." (1907)—Sieber, +"Das Staatsbürgerrecht in internationalem Verkehr," 2 vols. (1907)—Lehr, +"La nationalité dans les principaux états du globe" (1909), and in R.I. 2nd Ser. X. (1908), pp. 285, 401, and 525.</p> <p>In 1893 the British Government addressed a circular to its representatives @@ -20154,7 +20113,7 @@ Parliament. They are printed in Martens, N.R.G. 2nd Ser. XIX. pp. <div class="sidenote"><p>Five Modes of Acquisition of Nationality.</p></div> -<p>§ 297. Although it is for Municipal Law to determine +<p>§ 297. Although it is for Municipal Law to determine who is and who is not a subject of a State, it is nevertheless of interest for the theory of the Law of Nations to ascertain how nationality can be acquired @@ -20167,7 +20126,7 @@ redintegration, subjugation, and cession.<span class="pagenum"><a name="Page_375 <div class="sidenote"><p>Acquisition of Nationality by Birth.</p></div> -<p>§ 298. The first and chief mode of acquiring nationality +<p>§ 298. The first and chief mode of acquiring nationality is by birth, for the acquisition of nationality by another mode is exceptional only, since the vast majority of mankind acquires nationality by birth and does not @@ -20199,11 +20158,11 @@ their territory.</p> <div class="footnote"><p><a name="Footnote_620_620" id="Footnote_620_620"></a><a href="#FNanchor_620_620"><span class="label">[620]</span></a> See details concerning British law on this point in Hall, -"Foreign Powers and Jurisdiction" (1894), § 14.</p></div> +"Foreign Powers and Jurisdiction" (1894), § 14.</p></div> <div class="sidenote"><p>Acquisition of Nationality through Naturalisation.</p></div> -<p>§ 299. <a name="The_most_important299" id="The_most_important299"></a>The most important mode of acquiring +<p>§ 299. <a name="The_most_important299" id="The_most_important299"></a>The most important mode of acquiring nationality besides birth is that of naturalisation in the wider sense of the term. Through naturalisation an alien by birth acquires the nationality of the naturalising @@ -20237,22 +20196,22 @@ in the narrower sense of the term; it is the most important for the Law of Nations, and, whenever one speaks of naturalisation pure and simple, such naturalisation through direct grant on application is meant; -it will be discussed in detail below, §§ 303-307.</p> +it will be discussed in detail below, §§ 303-307.</p> <div class="footnote"><p><a name="Footnote_621_621" id="Footnote_621_621"></a><a href="#FNanchor_621_621"><span class="label">[621]</span></a> English law has not adopted this rule.</p></div> <div class="footnote"><p><a name="Footnote_622_622" id="Footnote_622_622"></a><a href="#FNanchor_622_622"><span class="label">[622]</span></a> It is doubtful (see - Hall, § 64) whether the home State of + Hall, § 64) whether the home State of such individuals naturalised against their will must submit to this <i>ipso facto</i> naturalisation. See - above, § <a href="#The_duty_of_every_State125">125</a>, where the rule has been + above, § <a href="#The_duty_of_every_State125">125</a>, where the rule has been stated that in consideration of the personal supremacy of the home State over its citizens abroad no State can naturalise foreigners against their will.</p></div> <div class="sidenote"><p>Acquisition of Nationality through Redintegration.</p></div> -<p>§ 300. The third mode of acquiring nationality is +<p>§ 300. The third mode of acquiring nationality is that by so-called redintegration or resumption. Such individuals as have been natural-born subjects of a State, but have lost their original nationality through @@ -20281,7 +20240,7 @@ in the case of an alien applying for naturalisation.</p> <div class="sidenote"><p>Acquisition of Nationality through Subjugation and Cession.</p></div> -<p>§ 301. <a name="The_fourth_and_fifth_modes301" id="The_fourth_and_fifth_modes301"></a>The fourth and fifth modes of acquiring +<p>§ 301. <a name="The_fourth_and_fifth_modes301" id="The_fourth_and_fifth_modes301"></a>The fourth and fifth modes of acquiring nationality are by subjugation after conquest and by cession of territory, the inhabitants of the subjugated as well as of the ceded territory acquiring <i>ipso facto</i> @@ -20290,11 +20249,11 @@ State which acquires the territory. These modes of acquisition of nationality are modes settled by the customary Law of Nations; it will be remembered that details concerning this matter have been given -above, §§ <a href="#As_the_object219">219</a> and <a href="#Although_subjugation240">240</a>.</p> +above, §§ <a href="#As_the_object219">219</a> and <a href="#Although_subjugation240">240</a>.</p> <div class="sidenote"><p>Seven modes of losing Nationality.</p></div> -<p>§ 302. Although it is left in the discretion of the +<p>§ 302. Although it is left in the discretion of the different States to determine the grounds on which individuals lose their nationality, it is nevertheless of interest for the theory of the Law of Nations to take @@ -20351,9 +20310,9 @@ their nationality and acquire that of the State which annexes the territory.<a name="FNanchor_624_624" id="FNanchor_624_624"></a><a href="#Footnote_624_624" class="fnanchor">[624]</a></p> <div class="footnote"><p><a name="Footnote_624_624" id="Footnote_624_624"></a><a href="#FNanchor_624_624"><span class="label">[624]</span></a> See - above, § <a href="#The_fourth_and_fifth_modes301">301</a>. Concerning the option sometimes given to + above, § <a href="#The_fourth_and_fifth_modes301">301</a>. Concerning the option sometimes given to inhabitants of ceded territory to retain their former nationality, see - above, § <a href="#As_the_object219">219</a>.</p></div> + above, § <a href="#As_the_object219">219</a>.</p></div> <h4> @@ -20361,14 +20320,14 @@ inhabitants of ceded territory to retain their former nationality, see <span class="smaller">NATURALISATION IN ESPECIAL</span> </h4> -<p class="indh1">Vattel, I. § 214—Hall, §§ 71-71*—Westlake, § I. pp. 225-230—Lawrence, §§ 95-96—Phillimore, -I. §§ 325-332—Halleck, I. pp. 403-410—Taylor, §§ 181-182—Walker, -§ 19—Wharton, II. §§ 173-183—Moore, III. §§ 377-380—Wheaton, -§ 85—Bluntschli, §§ 371-372—Ullmann, §§ 110-111—Pradier-Fodéré, -III. Nos. 1656-1659—Calvo, II. §§ 581-646—Martens, II. §§ 47-48—Stoicesco, -"Étude sur la naturalisation" (1875)—Folleville, -"Traité de la naturalisation" (1880)—Cogordan, "La nationalité, &c." -(2nd ed. 1890), pp. 117-284, 307-316—Delécaille, "De la naturalisation" +<p class="indh1">Vattel, I. § 214—Hall, §§ 71-71*—Westlake, § I. pp. 225-230—Lawrence, §§ 95-96—Phillimore, +I. §§ 325-332—Halleck, I. pp. 403-410—Taylor, §§ 181-182—Walker, +§ 19—Wharton, II. §§ 173-183—Moore, III. §§ 377-380—Wheaton, +§ 85—Bluntschli, §§ 371-372—Ullmann, §§ 110-111—Pradier-Fodéré, +III. Nos. 1656-1659—Calvo, II. §§ 581-646—Martens, II. §§ 47-48—Stoicesco, +"Étude sur la naturalisation" (1875)—Folleville, +"Traité de la naturalisation" (1880)—Cogordan, "La nationalité, &c." +(2nd ed. 1890), pp. 117-284, 307-316—Delécaille, "De la naturalisation" (1893)—Henriques, "The Law of Aliens, &c." (1906), pp. 91-121—Piggott, "Nationality and Naturalisation, &c." 2 vols. (new ed. 1907)—Hart, in the <i>Journal of the Society of Comparative Legislation</i>, new series, @@ -20376,11 +20335,11 @@ vol. II. (1900), pp. 11-26.</p> <div class="sidenote"><p>Conception and Importance of Naturalisation.</p></div> -<p>§ 303. Naturalisation in the narrower sense of the +<p>§ 303. Naturalisation in the narrower sense of the term—in contradistinction to naturalisation <i>ipso facto</i> through marriage, legitimation, option, domicile, and Government office (see - above, § <a href="#The_most_important299">299</a>)—must be defined + above, § <a href="#The_most_important299">299</a>)—must be defined as reception of an alien into the citizenship of a State through a formal act on application of the favoured individual. International Law does not provide any @@ -20409,7 +20368,7 @@ existence which abstains altogether from naturalising foreigners.</p></div> <div class="sidenote"><p>Object of Naturalisation.</p></div> -<p>§ 304. The object of naturalisation is always an +<p>§ 304. The object of naturalisation is always an alien. Some States will naturalise such aliens only as are stateless because they never have been citizens of another State or because they have renounced, or have @@ -20430,7 +20389,7 @@ which can refuse it without giving any reasons.</p> <div class="sidenote"><p>Conditions of Naturalisation.</p></div> -<p>§ 305. If granted, naturalisation makes an alien a +<p>§ 305. If granted, naturalisation makes an alien a citizen. But it is left to the discretion of the naturalising State to grant naturalisation under any conditions it likes. Thus, for example, Great Britain grants @@ -20448,11 +20407,11 @@ alien can never be elected President.<a name="FNanchor_626_626" id="FNanchor_626 <div class="footnote"><p><a name="Footnote_626_626" id="Footnote_626_626"></a><a href="#FNanchor_626_626"><span class="label">[626]</span></a> A foreigner naturalised in Great Britain by Letters of Denization does not acquire the same rights as a natural-born British -subject. See Hall, "Foreign Powers and Jurisdiction" (1894), § 22.</p></div> +subject. See Hall, "Foreign Powers and Jurisdiction" (1894), § 22.</p></div> <div class="sidenote"><p>Effect of Naturalisation upon previous Citizenship.</p></div> -<p>§ 306. Since the Law of Nations does not comprise +<p>§ 306. Since the Law of Nations does not comprise any rules concerning naturalisation, the effect of naturalisation upon previous citizenship is exclusively a matter of the Municipal Law of the States concerned. @@ -20475,17 +20434,17 @@ before his naturalisation abroad.</p> <div class="footnote"><p><a name="Footnote_627_627" id="Footnote_627_627"></a><a href="#FNanchor_627_627"><span class="label">[627]</span></a> Formerly Great Britain upheld the rule <i>nemo potest exuere patriam</i>, but Section 6 of the Naturalisation Act, 1870, does away with that rule. Its antithesis is the rule <i>ne quis invitus civitate mutetur, -neve in civitate maneat invitus</i> (Cicero, "Pro Balbo," c. 13, § 31; see +neve in civitate maneat invitus</i> (Cicero, "Pro Balbo," c. 13, § 31; see Rattigan, "Private International Law" (1895), p. 29, No. 21).</p></div> <div class="footnote"><p><a name="Footnote_628_628" id="Footnote_628_628"></a><a href="#FNanchor_628_628"><span class="label">[628]</span></a> Many instructive cases concerning this matter are reported -by Wharton, II. §§ 180 and 181, and Moore, III. §§ 401-407. See also -Hall, § 71, where details concerning the practice of many States are +by Wharton, II. §§ 180 and 181, and Moore, III. §§ 401-407. See also +Hall, § 71, where details concerning the practice of many States are given with regard to their subjects naturalised abroad.<span class="pagenum"><a name="Page_382" id="Page_382">[Pg 382]</a></span></p></div> <div class="sidenote"><p>Naturalisation in Great Britain.</p></div> -<p>§ 307. <a name="The_present_law307" id="The_present_law307"></a>The present law of Great Britain<a name="FNanchor_629_629" id="FNanchor_629_629"></a><a href="#Footnote_629_629" class="fnanchor">[629]</a> concerning +<p>§ 307. <a name="The_present_law307" id="The_present_law307"></a>The present law of Great Britain<a name="FNanchor_629_629" id="FNanchor_629_629"></a><a href="#Footnote_629_629" class="fnanchor">[629]</a> concerning Naturalisation is mainly contained in the Naturalisation Acts of 1870, 1874, and 1895.<a name="FNanchor_630_630" id="FNanchor_630_630"></a><a href="#Footnote_630_630" class="fnanchor">[630]</a> Aliens may on their application become naturalised by a certificate @@ -20522,20 +20481,20 @@ British subjects, except children born of a naturalised father abroad in the service of the Crown.<a name="FNanchor_633_633" id="FNanchor_633_633"></a><a href="#Footnote_633_633" class="fnanchor">[633]</a></p> <div class="footnote"><p><a name="Footnote_629_629" id="Footnote_629_629"></a><a href="#FNanchor_629_629"><span class="label">[629]</span></a> As regards naturalisation in the United States of America, -see Moore, III. §§ 381-389, and Dyne, "Naturalisation in the United +see Moore, III. §§ 381-389, and Dyne, "Naturalisation in the United States" (1907).</p></div> <div class="footnote"><p><a name="Footnote_630_630" id="Footnote_630_630"></a><a href="#FNanchor_630_630"><span class="label">[630]</span></a> 33 Vict. c. 14; 35 and 36 Vict. c. 39; 58 & 59 Vict. c. 43. See Foote, "Private International Jurisprudence," 3rd ed. (1904), pp. -1-51; Westlake, "Private International Law," 4th ed. (1905), §§ 284-287; +1-51; Westlake, "Private International Law," 4th ed. (1905), §§ 284-287; Dicey, "Conflict of Laws," 2nd ed. (1908), pp. 172-191.</p></div> <div class="footnote"><p><a name="Footnote_631_631" id="Footnote_631_631"></a><a href="#FNanchor_631_631"><span class="label">[631]</span></a> See - Hall, "Foreign Powers and Jurisdiction," §§ 20 and 21, + Hall, "Foreign Powers and Jurisdiction," §§ 20 and 21, especially concerning naturalisation in India.</p></div> <div class="footnote"><p><a name="Footnote_632_632" id="Footnote_632_632"></a><a href="#FNanchor_632_632"><span class="label">[632]</span></a> See - Hall, "Foreign Powers and Jurisdiction," § 19.</p></div> + Hall, "Foreign Powers and Jurisdiction," § 19.</p></div> <div class="footnote"><p><a name="Footnote_633_633" id="Footnote_633_633"></a><a href="#FNanchor_633_633"><span class="label">[633]</span></a> See Naturalisation Act, 1895 (58 & 59 Vict. c. 43).</p></div> @@ -20561,7 +20520,7 @@ to exercise British consular jurisdiction in the East." (Hall.)</p> <div class="footnote"><p><a name="Footnote_634_634" id="Footnote_634_634"></a><a href="#FNanchor_634_634"><span class="label">[634]</span></a> See - Hall, "Foreign Powers and Jurisdiction," § 22.</p></div> + Hall, "Foreign Powers and Jurisdiction," § 22.</p></div> @@ -20571,16 +20530,16 @@ to exercise British consular jurisdiction in the East." </h4> -<p class="indh1">Hall, § 71—Westlake, I. pp. 221-225—Lawrence, § 96—Halleck, I. pp. 410-413—Taylor, -§ 183—Wheaton, § 85 (Dana's note)—Moore, III. §§ 426-430—Bluntschli, -§§ 373-374—Hartmann, § 82—Heffter, § 59—Stoerk in -Holtzendorff, II. pp. 650-655—Ullmann, § 110—Bonfils, No. 422—Pradier-Fodéré, +<p class="indh1">Hall, § 71—Westlake, I. pp. 221-225—Lawrence, § 96—Halleck, I. pp. 410-413—Taylor, +§ 183—Wheaton, § 85 (Dana's note)—Moore, III. §§ 426-430—Bluntschli, +§§ 373-374—Hartmann, § 82—Heffter, § 59—Stoerk in +Holtzendorff, II. pp. 650-655—Ullmann, § 110—Bonfils, No. 422—Pradier-Fodéré, III. Nos. 1660-1665—Rivier, I. pp. 304-306—Calvo, II. -§§ 647-654—Martens, II. § 46.</p> +§§ 647-654—Martens, II. § 46.</p> <div class="sidenote"><p>Possibility of Double and Absent Nationality.</p></div> -<p>§ 308. The Law of Nations having no rule concerning +<p>§ 308. The Law of Nations having no rule concerning acquisition and loss of nationality beyond this, that nationality is lost and acquired through subjugation<span class="pagenum"><a name="Page_384" id="Page_384">[Pg 384]</a></span> and cession, and, on the other hand, the Municipal @@ -20618,7 +20577,7 @@ may be inside these States.</p> <div class="sidenote"><p>How Double Nationality occurs.</p></div> -<p>§ 309. An individual may own double nationality +<p>§ 309. An individual may own double nationality knowingly or unknowingly, and with or without intention. And double nationality may be produced by every mode of acquiring nationality. Even birth can @@ -20662,7 +20621,7 @@ Naturalisation Act, 1870.</p></div> <div class="sidenote"><p>Position of Individuals with Double Nationality.</p></div> -<p>§ 310. Individuals owning double nationality bear<span class="pagenum"><a name="Page_386" id="Page_386">[Pg 386]</a></span> +<p>§ 310. Individuals owning double nationality bear<span class="pagenum"><a name="Page_386" id="Page_386">[Pg 386]</a></span> in the language of diplomatists the name <i>sujets mixtes</i>. The position of such "mixed subjects" is awkward on account of the fact that two different States claim @@ -20713,7 +20672,7 @@ Jurisprudence," 3rd ed. (1904), p. 106, and the cases there cited.</p></div> <div class="sidenote"><p>How Absent Nationality occurs.</p></div> -<p>§ 311. An individual may be destitute of nationality +<p>§ 311. An individual may be destitute of nationality knowingly or unknowingly, intentionally or through no fault of his own. Even by birth a person may be stateless. Thus, an illegitimate child born in @@ -20730,7 +20689,7 @@ another are in fact destitute of nationality.</p> <div class="sidenote"><p>Position of Individuals destitute of Nationality.</p></div> -<p>§ 312. <a name="That_stateless_individuals312" id="That_stateless_individuals312"></a>That stateless individuals are objects of the +<p>§ 312. <a name="That_stateless_individuals312" id="That_stateless_individuals312"></a>That stateless individuals are objects of the Law of Nations in so far as they fall under the territorial supremacy of the State on whose territory they live there is no doubt whatever. But since they do not @@ -20748,7 +20707,7 @@ no restriction whatever upon a State's maltreating them to any extent.<a name="FNanchor_638_638" id="FNanchor_638_638"></a><a href="#Footnote_638_638" class="fnanchor">[638]</a></p> <div class="footnote"><p><a name="Footnote_637_637" id="Footnote_637_637"></a><a href="#FNanchor_637_637"><span class="label">[637]</span></a> See - above, § <a href="#If_as_stated_individuals291">291</a>.</p></div> + above, § <a href="#If_as_stated_individuals291">291</a>.</p></div> <div class="footnote"><p><a name="Footnote_638_638" id="Footnote_638_638"></a><a href="#FNanchor_638_638"><span class="label">[638]</span></a> The position of the Jews in Roumania furnishes a sad example. According to Municipal Law they are, with a few exceptions, @@ -20760,12 +20719,12 @@ to render military service, and actually treats them in every way according to discretion without any foreign State being able to exercise a right of protection over them. See Rey in R.G. X. (1903), pp. 460-526, and Bar in R.I. 2nd Ser. IX. (1907), pp. 711-716. See also - above, <a href="#Footnote_610_610">§ 293, p. 369, note 2</a>.<span class="pagenum"><a name="Page_388" id="Page_388">[Pg 388]</a></span></p></div> + above, <a href="#Footnote_610_610">§ 293, p. 369, note 2</a>.<span class="pagenum"><a name="Page_388" id="Page_388">[Pg 388]</a></span></p></div> <div class="sidenote"><p>Redress against Difficulties arising from Double and Absent Nationality.</p></div> -<p>§ 313. Double as well as absent nationality of individuals +<p>§ 313. Double as well as absent nationality of individuals has from time to time created many difficulties for the States concerned. As regards the remedy for such difficulties, it is comparatively easy to meet those @@ -20812,15 +20771,15 @@ and loss of nationality as make the very occurrence of double and absent nationality impossible.<a name="FNanchor_641_641" id="FNanchor_641_641"></a><a href="#Footnote_641_641" class="fnanchor">[641]</a></p> <div class="footnote"><p><a name="Footnote_639_639" id="Footnote_639_639"></a><a href="#FNanchor_639_639"><span class="label">[639]</span></a> The case of Martin Koszta ought here to be mentioned, -details of which are reported by Wharton, II. § 175; Moore, III. §§ -490-491, and Martens, "Causes Célèbre," V. pp. 583-599. Koszta was a +details of which are reported by Wharton, II. § 175; Moore, III. §§ +490-491, and Martens, "Causes Célèbre," V. pp. 583-599. Koszta was a Hungarian subject who took part in the revolutionary movement of 1848, escaped to the United States, and in July, 1852, made a declaration under oath, before a proper tribunal, of his intention to become naturalised there. After remaining nearly two years in the United States, but before he was really naturalised, he visited Turkey, and obtained a <i>tezkereh</i>, a kind of letter of safe-conduct, from the -American Chargé d'Affaires at Constantinople. Later on, while at Smyrna, +American Chargé d'Affaires at Constantinople. Later on, while at Smyrna, he was seized by Austrian officials and taken on board an Austrian man-of-war with the intention of bringing him to Austria, to be there punished for his part in the revolution of 1848. The American Consul @@ -20842,12 +20801,12 @@ Treaties," attempted to overcome conflicts arising from double nationality. The first of these treaties was concluded in 1868 with the North German Confederation, the precursor of the present German Empire, and signed on behalf of the United States by her Minister in Berlin, -George Bancroft. (See Wharton, II. §§ 149 and 179, and Moore, III. §§ +George Bancroft. (See Wharton, II. §§ 149 and 179, and Moore, III. §§ 391-400.) In the same and the following years treaties of the same kind were concluded with many other States, the last with Portugal in 1908. A treaty of another kind, but with the same object, was concluded between the United States and Great Britain on May 13, 1870. (See Martens, -N.R.G. XX. p. 524, and Moore, III. § 397.) All these treaties stipulate +N.R.G. XX. p. 524, and Moore, III. § 397.) All these treaties stipulate that naturalisation in one of the contracting States shall be recognised by the other, whether the naturalised individual has or has not previously been released from his original citizenship, provided he has @@ -20876,14 +20835,14 @@ the difficulties. (See Annuaire, XV. p. 270.)</p></div> </h4> -<p class="indh1">Vattel, II. § 100—Hall, §§ 63-64—Westlake, I. pp. 208-210—Lawrence, §§ 97-98—Phillimore, -I. §§ 365-370—Twiss, I. § 238—Halleck, I. pp. 452-454—Taylor, -§ 186—Walker, § 19—Wharton, II. § 206—Wheaton, § 115, -and Dana's Note—Moore, IV. §§ 560-566—Bluntschli, §§ 381-398—Hartmann, -§§ 84-85, 89—Heffter, §§ 61-63—Stoerk in Holtzendorff, II. -pp. 637-650—Gareis, § 57—Liszt, § 25—Ullmann, §§ 113-115—Bonfils, +<p class="indh1">Vattel, II. § 100—Hall, §§ 63-64—Westlake, I. pp. 208-210—Lawrence, §§ 97-98—Phillimore, +I. §§ 365-370—Twiss, I. § 238—Halleck, I. pp. 452-454—Taylor, +§ 186—Walker, § 19—Wharton, II. § 206—Wheaton, § 115, +and Dana's Note—Moore, IV. §§ 560-566—Bluntschli, §§ 381-398—Hartmann, +§§ 84-85, 89—Heffter, §§ 61-63—Stoerk in Holtzendorff, II. +pp. 637-650—Gareis, § 57—Liszt, § 25—Ullmann, §§ 113-115—Bonfils, Nos. 441-446—Despagnet, Nos. 339-343—Rivier, I. pp. 307-309—Nys, -II. pp. 232-237—Calvo, II. §§ 701-706, VI. § 119—Martens, II. § 46—Overbeck, +II. pp. 232-237—Calvo, II. §§ 701-706, VI. § 119—Martens, II. § 46—Overbeck, "Niederlassungsfreiheit und Ausweisungsrecht" (1906); Henriques, "The Law of Aliens, &c." (1906)—Sibley and Elias, "The Aliens Act, &c." (1906)—Proceedings of the American Society of International @@ -20891,7 +20850,7 @@ Law, 1911, pp. 65-115.</p> <div class="sidenote"><p>No Obligation to admit Aliens.</p></div> -<p>§ 314. Many writers<a name="FNanchor_642_642" id="FNanchor_642_642"></a><a href="#Footnote_642_642" class="fnanchor">[642]</a> maintain that every member +<p>§ 314. Many writers<a name="FNanchor_642_642" id="FNanchor_642_642"></a><a href="#Footnote_642_642" class="fnanchor">[642]</a> maintain that every member of the Family of Nations is bound by International Law to admit all aliens into its territory for all lawful purposes, although they agree that every State could @@ -20942,11 +20901,11 @@ in strict law every State is competent to exclude foreigners from its territory.<a name="FNanchor_645_645" id="FNanchor_645_645"></a><a href="#Footnote_645_645" class="fnanchor">[645]</a></p> <div class="footnote"><p><a name="Footnote_642_642" id="Footnote_642_642"></a><a href="#FNanchor_642_642"><span class="label">[642]</span></a> See, - for instance, Bluntschli, § -381, and Liszt, § 25.</p></div> + for instance, Bluntschli, § +381, and Liszt, § 25.</p></div> <div class="footnote"><p><a name="Footnote_643_643" id="Footnote_643_643"></a><a href="#FNanchor_643_643"><span class="label">[643]</span></a> See - above, § <a href="#Many_adherents_of_the141">141</a>.</p></div> + above, § <a href="#Many_adherents_of_the141">141</a>.</p></div> <div class="footnote"><p><a name="Footnote_644_644" id="Footnote_644_644"></a><a href="#FNanchor_644_644"><span class="label">[644]</span></a> See the Aliens Act, 1905 (5 Edw. @@ -20966,7 +20925,7 @@ with the admittance of aliens.<span class="pagenum"><a name="Page_392" id="Page_ <div class="sidenote"><p>Reception of Aliens under conditions.</p></div> -<p>§ 315. It is obvious that, if a State need not receive +<p>§ 315. It is obvious that, if a State need not receive aliens at all, it can, on the other hand, receive them under certain conditions only. Thus, for example, Russia does not admit aliens without passports, and if @@ -20986,7 +20945,7 @@ is unconditionally open to all mere travelling aliens.</p> <div class="sidenote"><p>So-called Right of Asylum.</p></div> -<p>§ 316. The fact that every State exercises territorial +<p>§ 316. The fact that every State exercises territorial supremacy over all persons on its territory, whether they are its subjects or aliens, excludes the prosecution of aliens thereon by foreign States. Thus, a foreign @@ -21028,21 +20987,21 @@ importance.</p> </h4> -<p class="indh1">Vattel, I. § 213, II. §§ 101-115—Hall, §§ 63 and 87—Westlake, I. pp. 211-212, -313-316—Lawrence, §§ 97-98—Phillimore, I. §§ 332-339—Twiss, I. § 163—Taylor, -§§ 173, 187, 201-203—Walker, § 19—Wharton, II. §§ 201-205—Wheaton, -§ 77-82—Moore, IV. §§ 534-549—Bluntschli, §§ 385-393—Hartmann, -§§ 84-85—Heffter, § 62—Stoerk in Holtzendorff, II. pp. 637-650—Gareis, -§ 57—Liszt, § 25—Ullmann, §§ 113-115—Bonfils, Nos. +<p class="indh1">Vattel, I. § 213, II. §§ 101-115—Hall, §§ 63 and 87—Westlake, I. pp. 211-212, +313-316—Lawrence, §§ 97-98—Phillimore, I. §§ 332-339—Twiss, I. § 163—Taylor, +§§ 173, 187, 201-203—Walker, § 19—Wharton, II. §§ 201-205—Wheaton, +§ 77-82—Moore, IV. §§ 534-549—Bluntschli, §§ 385-393—Hartmann, +§§ 84-85—Heffter, § 62—Stoerk in Holtzendorff, II. pp. 637-650—Gareis, +§ 57—Liszt, § 25—Ullmann, §§ 113-115—Bonfils, Nos. 447-454—Despagnet, Nos. 339-343—Rivier, I. pp. 309-311—Calvo, II. -§§ 701-706—Martens, II. § 46—Gaston de Leval, "De la protection des -nationaux à l'étranger" (1907)—Wheeler in A.J. III. (1909), pp. 869-884—Proceedings +§§ 701-706—Martens, II. § 46—Gaston de Leval, "De la protection des +nationaux à l'étranger" (1907)—Wheeler in A.J. III. (1909), pp. 869-884—Proceedings of the American Society of International Law, 1911, pp. 32-65, 150-225.</p> <div class="sidenote"><p>Aliens subjected to territorial Supremacy.</p></div> -<p>§ 317. <a name="Wi317" id="Wi317"></a>With his entrance into a State, an alien, +<p>§ 317. <a name="Wi317" id="Wi317"></a>With his entrance into a State, an alien, unless he belongs to the class of those who enjoy so-called exterritoriality, falls at once under such State's territorial supremacy, although he remains at the same @@ -21075,7 +21034,7 @@ discretion.</p> <div class="footnote"><p><a name="Footnote_646_646" id="Footnote_646_646"></a><a href="#FNanchor_646_646"><span class="label">[646]</span></a> See, however, - above, § <a href="#Just_like_independence127">127</a>, concerning the attitude of + above, § <a href="#Just_like_independence127">127</a>, concerning the attitude of Great Britain with regard to aliens in British colonies.</p></div> <p>It must be emphasised that an alien is responsible @@ -21099,12 +21058,12 @@ of De Jager.<span class="pagenum"><a name="Page_395" id="Page_395">[Pg 395]</a>< <p>He was tried in March 1901, and convicted of high treason, and sentenced to five years' imprisonment and -a fine of £5000, or, failing payment thereof, to a further +a fine of £5000, or, failing payment thereof, to a further three years.</p> <div class="sidenote"><p>Aliens in Eastern Countries.</p></div> -<p>§ 318. <a name="The_rule_that_aliens318" id="The_rule_that_aliens318"></a>The rule that aliens fall under the territorial +<p>§ 318. <a name="The_rule_that_aliens318" id="The_rule_that_aliens318"></a>The rule that aliens fall under the territorial supremacy of the State they are in finds an exception in Turkey and, further, in such other Eastern States, like China, as are, in consequence of their deficient @@ -21126,11 +21085,11 @@ Japan has since 1899 ceased to belong to the Eastern States in which aliens are exempt from local jurisdiction.</p> <div class="footnote"><p><a name="Footnote_648_648" id="Footnote_648_648"></a><a href="#FNanchor_648_648"><span class="label">[648]</span></a> See - below, § <a href="#International_custom_and440">440</a>.</p></div> + below, § <a href="#International_custom_and440">440</a>.</p></div> -<div class="footnote"><p><a name="Footnote_649_649" id="Footnote_649_649"></a><a href="#FNanchor_649_649"><span class="label">[649]</span></a> See Twiss, I. § 163, who enumerates many of these treaties; -see also Phillimore, I. §§ 336-339; Hall, "Foreign Powers and -Jurisdiction," §§ 59-91; and Scott, "The Law affecting Foreigners in +<div class="footnote"><p><a name="Footnote_649_649" id="Footnote_649_649"></a><a href="#FNanchor_649_649"><span class="label">[649]</span></a> See Twiss, I. § 163, who enumerates many of these treaties; +see also Phillimore, I. §§ 336-339; Hall, "Foreign Powers and +Jurisdiction," §§ 59-91; and Scott, "The Law affecting Foreigners in Egypt as the Result of the Capitulations" (1907).</p></div> <div class="footnote"><p><a name="Footnote_650_650" id="Footnote_650_650"></a><a href="#FNanchor_650_650"><span class="label">[650]</span></a> 53 & 54 Vict. c. 37. See @@ -21139,7 +21098,7 @@ Law relating to Consular Jurisdiction, &c.," new edition (1907).</p></div> <div class="sidenote"><p>Aliens under the Protection of their Home State.</p></div> -<p>§ 319. <a name="Although_aliens319" id="Although_aliens319"></a>Although aliens fall at once under the territorial +<p>§ 319. <a name="Although_aliens319" id="Although_aliens319"></a>Although aliens fall at once under the territorial supremacy of the State they enter, they remain nevertheless under the protection of their home State. By a universally recognised customary rule of the Law @@ -21147,7 +21106,7 @@ of Nations every State holds a right of protection<a name="FNanchor_651_651" id= over its citizens abroad, to which corresponds the duty<span class="pagenum"><a name="Page_396" id="Page_396">[Pg 396]</a></span> of every State to treat foreigners on its territory with a certain consideration which will be discussed below, -§§ <a href="#Under_the_influence320">320</a>-322. The question here is only when and how +§§ <a href="#Under_the_influence320">320</a>-322. The question here is only when and how this right of protection can be exercised.<a name="FNanchor_652_652" id="FNanchor_652_652"></a><a href="#Footnote_652_652" class="fnanchor">[652]</a> Now there is certainly, as far as the Law of Nations is concerned, no duty incumbent upon a State to exercise its protection @@ -21188,28 +21147,28 @@ and the like.</p> <div class="footnote"><p><a name="Footnote_651_651" id="Footnote_651_651"></a><a href="#FNanchor_651_651"><span class="label">[651]</span></a> This right has, I believe, grown up in furtherance of intercourse between the members of the Family of Nations (see - above, § <a href="#Intercourse_being_a_presupposition142">142</a>); -Hall (§ 87) and others deduce this indubitable right from the + above, § <a href="#Intercourse_being_a_presupposition142">142</a>); +Hall (§ 87) and others deduce this indubitable right from the "fundamental" right of self-preservation.</p></div> <div class="footnote"><p><a name="Footnote_652_652" id="Footnote_652_652"></a><a href="#FNanchor_652_652"><span class="label">[652]</span></a> See - Moore, VI. §§ 979-997, and Wheeler in A.J. III. (1909), + Moore, VI. §§ 979-997, and Wheeler in A.J. III. (1909), pp. 869-884.</p></div> <div class="footnote"><p><a name="Footnote_653_653" id="Footnote_653_653"></a><a href="#FNanchor_653_653"><span class="label">[653]</span></a> Concerning the responsibility of a State for internationally injurious acts of its own, its organs and other officials, and its subjects, see - above, §§ <a href="#International_delinquency151">151</a>-167, and Anzilloti in + above, §§ <a href="#International_delinquency151">151</a>-167, and Anzilloti in R.G. XIII. (1906), pp. 5 and 285. The right of protection over citizens -abroad is discussed in detail by Hall, § 87, Westlake, I. pp. 313-320, +abroad is discussed in detail by Hall, § 87, Westlake, I. pp. 313-320, and Gaston de Leval, op. cit. Concerning the right of protection of a State over its citizens with regard to public debts of foreign States, -see above, §§ <a href="#The_right_of_pro6of135">135 (6)</a> +see above, §§ <a href="#The_right_of_pro6of135">135 (6)</a> and <a href="#International_delinquencies155">155</a>.</p></div> <div class="sidenote"><p>Protection to be afforded to Aliens' Persons and Property.</p></div> -<p>§ 320. <a name="Under_the_influence320" id="Under_the_influence320"></a>Under the influence of the right of protection +<p>§ 320. <a name="Under_the_influence320" id="Under_the_influence320"></a>Under the influence of the right of protection over its subjects abroad which every State holds, and the corresponding duty of every State to treat aliens on its territory with a certain consideration, an alien, @@ -21235,7 +21194,7 @@ can cloak itself with the judgment of corrupt judges.</p> <div class="sidenote"><p>How far Aliens can be treated according to Discretion.</p></div> -<p>§ 321. Apart from protection of person and property, +<p>§ 321. Apart from protection of person and property, every State can treat aliens according to discretion, those points excepted concerning which discretion is<span class="pagenum"><a name="Page_398" id="Page_398">[Pg 398]</a></span> restricted through international treaties between the @@ -21266,7 +21225,7 @@ regulations of the Stock Exchange.</p></div> <div class="sidenote"><p>Departure from the Foreign Country.</p></div> -<p>§ 322. Since a State holds territorial only, but not +<p>§ 322. Since a State holds territorial only, but not personal supremacy over an alien within its boundaries, it can never under any circumstances prevent him from leaving its territory, provided he has fulfilled his local @@ -21288,7 +21247,7 @@ be levied in case of an alien dying on its territory.</p> <div class="footnote"><p><a name="Footnote_656_656" id="Footnote_656_656"></a><a href="#FNanchor_656_656"><span class="label">[656]</span></a> So-called <i>gabella emigrationis</i>.</p></div> <div class="footnote"><p><a name="Footnote_657_657" id="Footnote_657_657"></a><a href="#FNanchor_657_657"><span class="label">[657]</span></a> See - details in Wheaton, § 82. The <i>droit d'aubaine</i> was + details in Wheaton, § 82. The <i>droit d'aubaine</i> was likewise named <i>jus albinagii</i>.</p></div> <div class="footnote"><p><a name="Footnote_658_658" id="Footnote_658_658"></a><a href="#FNanchor_658_658"><span class="label">[658]</span></a> 57 & 58 Vict. c. 30. Estate duty is levied in Great Britain @@ -21305,15 +21264,15 @@ competent to claim estate duties in such cases.</p></div> <span class="smaller">EXPULSION OF ALIENS</span> </h4> -<p class="indh1">Hall, § 63—Westlake, I. p. 210—Phillimore, I. § 364—Halleck, I. pp. 460-461—Taylor, -§ 186—Walker, § 19—Wharton, II. § 206—Moore, IV. §§ 550-559—Bluntschli, -§§ 383-384—Stoerk in Holtzendorff, II. pp. 646-656—Ullmann, -§ 115—Bonfils, No. 442—Despagnet, Nos. 336-337—Pradier-Fodéré, +<p class="indh1">Hall, § 63—Westlake, I. p. 210—Phillimore, I. § 364—Halleck, I. pp. 460-461—Taylor, +§ 186—Walker, § 19—Wharton, II. § 206—Moore, IV. §§ 550-559—Bluntschli, +§§ 383-384—Stoerk in Holtzendorff, II. pp. 646-656—Ullmann, +§ 115—Bonfils, No. 442—Despagnet, Nos. 336-337—Pradier-Fodéré, III. Nos. 1857-1859—Rivier, I. pp. 311-314—Nys, II. -pp. 229-237—Calvo, VI. §§ 119-125—Fiore, Code, Nos. 252-259—Martens, -I. § 79—Bleteau, "De l'asile et de l'expulsion" (1886)—Berc, -"De l'expulsion des étrangers" (1888)—Féraud-Giraud, "Droit -d'expulsion des étrangers" (1889)—Langhard, "Das Recht der politischen +pp. 229-237—Calvo, VI. §§ 119-125—Fiore, Code, Nos. 252-259—Martens, +I. § 79—Bleteau, "De l'asile et de l'expulsion" (1886)—Berc, +"De l'expulsion des étrangers" (1888)—Féraud-Giraud, "Droit +d'expulsion des étrangers" (1889)—Langhard, "Das Recht der politischen Fremdenausweisung" (1891)—Overbeck, "Niederlassungsfreiheit und Ausweisungsrecht" (1906)—Rolin-Jaequemyns in R.I. XX. (1888), pp. 499 and 615—Proceedings of the American Society of International Law, @@ -21321,7 +21280,7 @@ Ausweisungsrecht" (1906)—Rolin-Jaequemyns in R.I. XX. (1888), pp. <div class="sidenote"><p>Competence to expel Aliens.</p></div> -<p>§ 323. Just as a State is competent to refuse admittance +<p>§ 323. Just as a State is competent to refuse admittance to an alien, so it is, in conformity with its territorial supremacy, competent to expel at any moment an alien who has been admitted into its territory. And @@ -21363,7 +21322,7 @@ which can rightfully be met with retorsion.</p> <div class="sidenote"><p>Just Causes of Expulsion of Aliens.</p></div> -<p>§ 324. <a name="On324" id="On324"></a>On account of the fact that retorsion might +<p>§ 324. <a name="On324" id="On324"></a>On account of the fact that retorsion might be justified, the question is of importance what just causes of expulsion of aliens there are. As International Law gives no detailed rules regarding expulsion, everything @@ -21413,7 +21372,7 @@ citizens without giving up their residence at Frankfort.</p> <div class="footnote"><p><a name="Footnote_659_659" id="Footnote_659_659"></a><a href="#FNanchor_659_659"><span class="label">[659]</span></a> Thus in 1870, during the Franco-German war, the French expelled all Germans from France, and the former South African Republic expelled in 1899, during the Boer war, almost all British subjects. See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_outbreak_of_war100">vol. II. § 100</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_outbreak_of_war100">vol. II. § 100</a>.</p></div> <div class="footnote"><p><a name="Footnote_660_660" id="Footnote_660_660"></a><a href="#FNanchor_660_660"><span class="label">[660]</span></a> See details in Rivier, I. p. 312.</p></div> @@ -21427,7 +21386,7 @@ doubtful.<span class="pagenum"><a name="Page_402" id="Page_402">[Pg 402]</a></sp <div class="sidenote"><p>Expulsion how effected.</p></div> -<p>§ 325. Expulsion is, in theory at least, not a punishment, +<p>§ 325. Expulsion is, in theory at least, not a punishment, but an administrative measure consisting in an order of the Government directing a foreigner to leave the country. Expulsion must therefore be effected @@ -21445,7 +21404,7 @@ frontier.</p> <div class="sidenote"><p>Reconduction in Contradistinction to Expulsion.</p></div> -<p>§ 326. <a name="In_many_Continental_States326" id="In_many_Continental_States326"></a>In many Continental States destitute aliens, +<p>§ 326. <a name="In_many_Continental_States326" id="In_many_Continental_States326"></a>In many Continental States destitute aliens, foreign vagabonds, suspicious aliens without papers of legitimation, alien criminals who have served their punishment, and the like, are without any formalities @@ -21473,14 +21432,14 @@ is a blemish in Municipal as well as International Law.<a name="FNanchor_665_665" id="FNanchor_665_665"></a><a href="#Footnote_665_665" class="fnanchor">[665]</a></p> <div class="footnote"><p><a name="Footnote_662_662" id="Footnote_662_662"></a><a href="#FNanchor_662_662"><span class="label">[662]</span></a> Rivier, I. p. 308, correctly distinguishes between -reconduction and expulsion, but Phillimore, I. § 364, seems to confound +reconduction and expulsion, but Phillimore, I. § 364, seems to confound them.</p></div> <div class="footnote"><p><a name="Footnote_663_663" id="Footnote_663_663"></a><a href="#FNanchor_663_663"><span class="label">[663]</span></a> See - above, § <a href="#It_will_be_remembered294">294</a>.</p></div> + above, § <a href="#It_will_be_remembered294">294</a>.</p></div> <div class="footnote"><p><a name="Footnote_664_664" id="Footnote_664_664"></a><a href="#FNanchor_664_664"><span class="label">[664]</span></a> See - above, § <a href="#Expiration_Some_States3of302">302, No. 3</a>.</p></div> + above, § <a href="#Expiration_Some_States3of302">302, No. 3</a>.</p></div> <div class="footnote"><p><a name="Footnote_665_665" id="Footnote_665_665"></a><a href="#FNanchor_665_665"><span class="label">[665]</span></a> It ought to be mentioned that many States have, either by special treaties or in their treaties of commerce, friendship, and the @@ -21494,18 +21453,18 @@ each other's territory.</p></div> </h4> -<p class="indh1">Hall, §§ 13 and 63—Westlake, I. pp. 241-251—Lawrence, §§ 110-111—Phillimore, -I. §§ 365-389D—Twiss, I. § 236—Halleck, I. pp. 257-268—Taylor, -§§ 205-211—Walker, § 19—Wharton, II. §§ 268-282—Wheaton, -§§ 115-121—Moore, IV. §§ 579-622—Bluntschli, §§ 394-401—Hartmann, -§ 89—Heffter, § 63—Lammasch in Holtzendorff, III. pp. 454-566—Liszt, -§ 33—Ullmann, §§ 127-131—Bonfils, Nos. 455-481—Despagnet, -Nos. 276-286—Pradier-Fodéré, III. Nos. 1863-1893—Mérignhac, II. +<p class="indh1">Hall, §§ 13 and 63—Westlake, I. pp. 241-251—Lawrence, §§ 110-111—Phillimore, +I. §§ 365-389D—Twiss, I. § 236—Halleck, I. pp. 257-268—Taylor, +§§ 205-211—Walker, § 19—Wharton, II. §§ 268-282—Wheaton, +§§ 115-121—Moore, IV. §§ 579-622—Bluntschli, §§ 394-401—Hartmann, +§ 89—Heffter, § 63—Lammasch in Holtzendorff, III. pp. 454-566—Liszt, +§ 33—Ullmann, §§ 127-131—Bonfils, Nos. 455-481—Despagnet, +Nos. 276-286—Pradier-Fodéré, III. Nos. 1863-1893—Mérignhac, II. pp. 732-777—Rivier, I. pp. 348-357—Nys, II. pp. 244-253—Calvo, II. -§§ 949-1071—Fiore, Code, Nos. 584-586—Martens, II. §§ 91-98—Spear, +§§ 949-1071—Fiore, Code, Nos. 584-586—Martens, II. §§ 91-98—Spear, "The Law of Extradition" (1879)—Lammasch, "Auslieferungspflicht und Asylrecht" (1887)—Martitz, "Internationale Rechtshilfe in -Strafsachen," 2 vols. (1888 and 1897)—Bernard, "Traité théorique et +Strafsachen," 2 vols. (1888 and 1897)—Bernard, "Traité théorique et pratique de l'extradition," 2 vols. (2nd ed. 1890)—Moore, "Treatise on Extradition" (1891)—Hawley, "The Law of International Extradition" (1893)—Clark, "The Law of Extradition" (3rd ed. 1903)—Biron and @@ -21517,7 +21476,7 @@ literature concerning extradition quoted by Fauchille in Bonfils, No. <div class="sidenote"><p>Extradition no legal duty.</p></div> -<p>§ 327. Extradition is the delivery of a prosecuted +<p>§ 327. Extradition is the delivery of a prosecuted individual to the State on whose territory he has committed a crime by the State on whose territory the criminal is for the time staying. Although Grotius<a name="FNanchor_666_666" id="FNanchor_666_666"></a><a href="#Footnote_666_666" class="fnanchor">[666]</a> @@ -21537,7 +21496,7 @@ special extradition treaties, if any. There is, therefore, no universal rule of customary International Law in existence which commands<a name="FNanchor_667_667" id="FNanchor_667_667"></a><a href="#Footnote_667_667" class="fnanchor">[667]</a> extradition.</p> -<div class="footnote"><p><a name="Footnote_666_666" id="Footnote_666_666"></a><a href="#FNanchor_666_666"><span class="label">[666]</span></a> II. c. 21, § 4.</p></div> +<div class="footnote"><p><a name="Footnote_666_666" id="Footnote_666_666"></a><a href="#FNanchor_666_666"><span class="label">[666]</span></a> II. c. 21, § 4.</p></div> <div class="footnote"><p><a name="Footnote_667_667" id="Footnote_667_667"></a><a href="#FNanchor_667_667"><span class="label">[667]</span></a> Clarke, op. cit. pp. 1-15, tries to prove that a duty to extradite criminals does exist, but the result of all his labour is that @@ -21550,7 +21509,7 @@ denied.</p></div> <div class="sidenote"><p>Extradition Treaties how arisen.</p></div> -<p>§ 328. Since, however, modern civilisation categorically +<p>§ 328. Since, however, modern civilisation categorically demands extradition of criminals as a rule, numerous treaties have been concluded between the several States stipulating the cases in which extradition shall @@ -21570,7 +21529,7 @@ change in the eighteenth century, for then treaties between neighbouring States frequently stipulated extradition of ordinary criminals besides that of political fugitives, conspirators, military deserters, and the like.<span class="pagenum"><a name="Page_405" id="Page_405">[Pg 405]</a></span> -Vattel (II. § 76) is able to assert in 1758 that murderers, +Vattel (II. § 76) is able to assert in 1758 that murderers, incendiaries, and thieves are regularly surrendered by neighbouring States to each other. But general treaties of extradition between all the members of the Family @@ -21611,7 +21570,7 @@ Vie Internationale" (1908-9), p. 461.</p></div> <div class="sidenote"><p>Municipal Extradition Laws.</p></div> -<p>§ 329. Some States, however, were unwilling to depend<span class="pagenum"><a name="Page_406" id="Page_406">[Pg 406]</a></span> +<p>§ 329. Some States, however, were unwilling to depend<span class="pagenum"><a name="Page_406" id="Page_406">[Pg 406]</a></span> entirely upon the discretion of their Governments as regards the conclusion of extradition treaties and the procedure in extradition cases. They have therefore @@ -21670,7 +21629,7 @@ exists.</p> <div class="sidenote"><p>Object of Extradition.</p></div> -<p>§ 330. Since extradition is the delivery of an incriminated +<p>§ 330. Since extradition is the delivery of an incriminated individual to the State on whose territory he has committed a crime by the State on whose territory he is for the time staying, the object of extradition @@ -21702,7 +21661,7 @@ by false pretences in Germany.<a name="FNanchor_675_675" id="FNanchor_675_675">< <div class="footnote"><p><a name="Footnote_674_674" id="Footnote_674_674"></a><a href="#FNanchor_674_674"><span class="label">[674]</span></a> This case is all the more remarkable, as (see 24 & 25 Vict. -c. 100, § 9) the criminal law of England extends over murder and +c. 100, § 9) the criminal law of England extends over murder and manslaughter committed abroad by English subjects, and as, according to article 3 of the extradition treaty of 1873 between England and Austria-Hungary, the contracting parties are in no case under obligation @@ -21738,14 +21697,14 @@ one Porter Charlton,<a name="FNanchor_677_677" id="FNanchor_677_677"></a><a href committed a murder in Italy, extradition was granted.</p> <div class="footnote"><p><a name="Footnote_676_676" id="Footnote_676_676"></a><a href="#FNanchor_676_676"><span class="label">[676]</span></a> See - Moore, IV. § 594, pp. 290-297.</p></div> + Moore, IV. § 594, pp. 290-297.</p></div> <div class="footnote"><p><a name="Footnote_677_677" id="Footnote_677_677"></a><a href="#FNanchor_677_677"><span class="label">[677]</span></a> See A.J. V. (1911), pp. 182-191.</p></div> <div class="sidenote"><p>Extraditable Crimes.</p></div> -<p>§ 331. Unless a State is restricted by an extradition +<p>§ 331. Unless a State is restricted by an extradition law, it can grant extradition for any crime it thinks fit. And unless a State is bound by an extradition treaty, it can refuse extradition for any crime. Such @@ -21782,11 +21741,11 @@ deserters and such persons as have committed offences against religion are likewise excluded from extradition.</p> <div class="footnote"><p><a name="Footnote_678_678" id="Footnote_678_678"></a><a href="#FNanchor_678_678"><span class="label">[678]</span></a> See - below, §§ <a href="#Before_the_French333">333</a>-340.</p></div> + below, §§ <a href="#Before_the_French333">333</a>-340.</p></div> <div class="sidenote"><p>Effectuation and Condition of Extradition.</p></div> -<p>§ 332. Extradition is granted only if asked for, and +<p>§ 332. Extradition is granted only if asked for, and after the formalities have taken place which are stipulated in the treaties of extradition and the extradition laws, if any. It is effected through handing over the @@ -21802,7 +21761,7 @@ and punished for another crime, the extraditing State has a right of intervention.<a name="FNanchor_680_680" id="FNanchor_680_680"></a><a href="#Footnote_680_680" class="fnanchor">[680]</a></p> <div class="footnote"><p><a name="Footnote_679_679" id="Footnote_679_679"></a><a href="#FNanchor_679_679"><span class="label">[679]</span></a> See - Mettgenberg in the "Zeitschrift für internationales + Mettgenberg in the "Zeitschrift für internationales Recht," XVIII. (1908), pp. 425-430.</p></div> <div class="footnote"><p><a name="Footnote_680_680" id="Footnote_680_680"></a><a href="#FNanchor_680_680"><span class="label">[680]</span></a> It ought to be mentioned that the Institute of @@ -21851,11 +21810,11 @@ and had agreed to this.</p> <div class="footnote"><p><a name="Footnote_681_681" id="Footnote_681_681"></a><a href="#FNanchor_681_681"><span class="label">[681]</span></a> See Hamelin, "L'Affaire Savarkar" (Extrait du "Recueil -général de Jurisprudence, de Doctrine et de Législation coloniales," +général de Jurisprudence, de Doctrine et de Législation coloniales," 1911), who defends the French view. The award of the Court of Arbitration has been severely criticised by Baty in the <i>Law Magazine and Review</i>, XXXVI. (1911), pp. 326-330; Kohler in Z.V. V. (1911), pp. -202-211; Strupp, "Zwei praktische Fälle aus dem Völkerrecht" (1911), pp. +202-211; Strupp, "Zwei praktische Fälle aus dem Völkerrecht" (1911), pp. 12-26; Robin in R.G. XVIII. (1911), pp. 303-352; Hamel in R.I. 2nd Ser. XIII. (1911), pp. 370-403.</p></div> @@ -21867,11 +21826,11 @@ XIII. (1911), pp. 370-403.</p></div> </h4> -<p class="indh1">Westlake, I. pp. 247-248—Lawrence, § 111—Taylor, § 212—Wharton, II. -§ 272—Moore, IV. § 604—Bluntschli, § 396—Hartmann, § 89—Lammasch -in Holtzendorff, III. pp. 485-510—Liszt, § 33—Ullmann, § 129—Rivier, -I. pp. 351-357—Nys, II. pp. 253-256—Calvo, II. §§ 1034-1036—Martens, -II. § 96—Bonfils, Nos. 466-467—Pradier-Fodéré, III. Nos. 1871-1873—Mérignhac, +<p class="indh1">Westlake, I. pp. 247-248—Lawrence, § 111—Taylor, § 212—Wharton, II. +§ 272—Moore, IV. § 604—Bluntschli, § 396—Hartmann, § 89—Lammasch +in Holtzendorff, III. pp. 485-510—Liszt, § 33—Ullmann, § 129—Rivier, +I. pp. 351-357—Nys, II. pp. 253-256—Calvo, II. §§ 1034-1036—Martens, +II. § 96—Bonfils, Nos. 466-467—Pradier-Fodéré, III. Nos. 1871-1873—Mérignhac, II. pp. 754-771—Soldan, "L'extradition des criminels politiques" (1882)—Martitz, "Internationale Rechtshilfe in Strafsachen," vol. II. (1897), pp. 134-707—Lammasch, "Auslieferungspflicht und @@ -21881,7 +21840,7 @@ in A.J. III. (1909), pp. 459-461.</p> <div class="sidenote"><p>How Non-extradition of Political Criminals became the Rule.</p></div> -<p>§ 333. <a name="Before_the_French333" id="Before_the_French333"></a>Before the French Revolution<a name="FNanchor_682_682" id="FNanchor_682_682"></a><a href="#Footnote_682_682" class="fnanchor">[682]</a> the term +<p>§ 333. <a name="Before_the_French333" id="Before_the_French333"></a>Before the French Revolution<a name="FNanchor_682_682" id="FNanchor_682_682"></a><a href="#Footnote_682_682" class="fnanchor">[682]</a> the term "political crime" was unknown in either the theory or the practice of the Law of Nations. And the principle of non-extradition of political criminals was likewise @@ -21953,15 +21912,15 @@ the facts given by Martitz, op. cit. II. pp. 134-184.</p></div> extraditions of political criminals which took place between 1648 and 1789.</p></div> -<div class="footnote"><p><a name="Footnote_684_684" id="Footnote_684_684"></a><a href="#FNanchor_684_684"><span class="label">[684]</span></a> So Grotius, II. c. 21, § 5, No. 5.</p></div> +<div class="footnote"><p><a name="Footnote_684_684" id="Footnote_684_684"></a><a href="#FNanchor_684_684"><span class="label">[684]</span></a> So Grotius, II. c. 21, § 5, No. 5.</p></div> -<div class="footnote"><p><a name="Footnote_685_685" id="Footnote_685_685"></a><a href="#FNanchor_685_685"><span class="label">[685]</span></a> H. Provó Kluit, "De deditione profugorum."</p></div> +<div class="footnote"><p><a name="Footnote_685_685" id="Footnote_685_685"></a><a href="#FNanchor_685_685"><span class="label">[685]</span></a> H. Provó Kluit, "De deditione profugorum."</p></div> <p>On the other hand, a reaction set in in 1833, when Austria, Prussia, and Russia concluded treaties which remained in force for a generation, and which stipulated that henceforth individuals who had committed crimes -of high treason and <i>lèse-majesté</i>, or had conspired against +of high treason and <i>lèse-majesté</i>, or had conspired against the safety of the throne and the legitimate Government, or had taken part in a revolt, should be surrendered to the State concerned. The same year, however, is @@ -22005,7 +21964,7 @@ their Governments, but to grant them an asylum.</p> <div class="sidenote"><p>Difficulty concerning the Conception of Political Crime.</p></div> -<p>§ 334. Although the principle became and is<span class="pagenum"><a name="Page_415" id="Page_415">[Pg 415]</a></span> +<p>§ 334. Although the principle became and is<span class="pagenum"><a name="Page_415" id="Page_415">[Pg 415]</a></span> generally<a name="FNanchor_686_686" id="FNanchor_686_686"></a><a href="#Footnote_686_686" class="fnanchor">[686]</a> recognised that political criminals shall not be extradited, serious difficulties exist concerning the conception of "political crime." Such conception is of @@ -22020,13 +21979,13 @@ purpose; again, others recognise such crime only as and at the same time for a political purpose; and, thirdly, some writers confine the term "political crime" to certain offences against the State only, as high -treason, <i>lèse-majesté</i>, and the like.<a name="FNanchor_687_687" id="FNanchor_687_687"></a><a href="#Footnote_687_687" class="fnanchor">[687]</a> To the present day +treason, <i>lèse-majesté</i>, and the like.<a name="FNanchor_687_687" id="FNanchor_687_687"></a><a href="#Footnote_687_687" class="fnanchor">[687]</a> To the present day all attempts have failed to formulate a satisfactory conception of the term, and the reason of the thing will, I believe, for ever exclude the possibility of finding a satisfactory conception and definition.<a name="FNanchor_688_688" id="FNanchor_688_688"></a><a href="#Footnote_688_688" class="fnanchor">[688]</a> The difficulty is caused through the so-called "relative political -crimes" or <i>délits complexes</i>—namely, those complex +crimes" or <i>délits complexes</i>—namely, those complex cases in which the political offence comprises at the same time<a name="FNanchor_689_689" id="FNanchor_689_689"></a><a href="#Footnote_689_689" class="fnanchor">[689]</a> an ordinary crime, such as murder, arson, theft, and the like. Some writers deny categorically @@ -22046,7 +22005,7 @@ complex crimes without violating this principle.</p> <div class="footnote"><p><a name="Footnote_686_686" id="Footnote_686_686"></a><a href="#FNanchor_686_686"><span class="label">[686]</span></a> See, however, - below, § <a href="#Be_that_as_it_may340">340</a>, concerning the reactionary + below, § <a href="#Be_that_as_it_may340">340</a>, concerning the reactionary movement in the matter.</p></div> <div class="footnote"><p><a name="Footnote_687_687" id="Footnote_687_687"></a><a href="#FNanchor_687_687"><span class="label">[687]</span></a> See @@ -22072,11 +22031,11 @@ considered to be political.</p></div> <div class="sidenote"><p>The so-called Belgian <i>Attentat</i> Clause.</p></div> -<p>§ 335. The first attempt was the enactment of the +<p>§ 335. The first attempt was the enactment of the so-called <i>attentat</i> clause by Belgium in 1856,<a name="FNanchor_690_690" id="FNanchor_690_690"></a><a href="#Footnote_690_690" class="fnanchor">[690]</a> following the case of Jacquin in 1854. A French manufacturer named Jules Jacquin, domiciled in Belgium, and a -foreman of his factory named Célestin Jacquin, who +foreman of his factory named Célestin Jacquin, who was also a Frenchman, tried to cause an explosion on the railway line between Lille and Calais with the intention of murdering the Emperor Napoleon III. @@ -22103,7 +22062,7 @@ II. p. 372.</p></div> <div class="sidenote"><p>The Russian Project of 1881.</p></div> -<p>§ 336. Another attempt to deal with complex crimes +<p>§ 336. Another attempt to deal with complex crimes without detriment to the principle of non-extradition of political criminals was made by Russia in 1881. Influenced by the murder of the Emperor Alexander<span class="pagenum"><a name="Page_417" id="Page_417">[Pg 417]</a></span> @@ -22123,7 +22082,7 @@ proposal having fallen through.</p> <div class="sidenote"><p>The Swiss Solution of the Problem in 1892.</p></div> -<p>§ 337. Eleven years later, in 1892, Switzerland +<p>§ 337. Eleven years later, in 1892, Switzerland attempted a solution of the problem on a new basis. In that year Switzerland enacted an extradition law whose article 10 recognises the non-extradition of @@ -22159,7 +22118,7 @@ satisfaction.<span class="pagenum"><a name="Page_418" id="Page_418">[Pg 418]</a> <div class="sidenote"><p>Rationale for the Principle of Non-extradition of Political Criminals.</p></div> -<p>§ 338. The numerous attempts<a name="FNanchor_695_695" id="FNanchor_695_695"></a><a href="#Footnote_695_695" class="fnanchor">[695]</a> against the lives of +<p>§ 338. The numerous attempts<a name="FNanchor_695_695" id="FNanchor_695_695"></a><a href="#Footnote_695_695" class="fnanchor">[695]</a> against the lives of heads of States and the frequency of anarchistic crimes have shaken the value of the principle of non-extradition of political criminals in the opinion of the civilised @@ -22294,7 +22253,7 @@ of Non-extradition of Political Criminals.</p></div> -<p>§ 339. The question, however, is how to sift the chaff +<p>§ 339. The question, however, is how to sift the chaff from the wheat, how to distinguish between such political criminals as deserve an asylum and such as do not. The difficulties are great and partly insuperable @@ -22352,7 +22311,7 @@ was really political.</p> <div class="sidenote"><p>Reactionary Extradition Treaties.</p></div> -<p>§ 340. <a name="Be_that_as_it_may340" id="Be_that_as_it_may340"></a>Be that as it may, the present condition of +<p>§ 340. <a name="Be_that_as_it_may340" id="Be_that_as_it_may340"></a>Be that as it may, the present condition of matters is a danger to the very principle of non-extradition of political criminals. Under the influence of the excitement caused by numerous criminal attempts @@ -22377,7 +22336,7 @@ the United States and Holland of 1893, she had to adopt it with a restrictive clause similar to the Belgian <i>attentat</i> clause.</p> -<div class="footnote"><p><a name="Footnote_699_699" id="Footnote_699_699"></a><a href="#FNanchor_699_699"><span class="label">[699]</span></a> Thus, even for <i>lèse majesté</i> extradition must be granted.</p></div> +<div class="footnote"><p><a name="Footnote_699_699" id="Footnote_699_699"></a><a href="#FNanchor_699_699"><span class="label">[699]</span></a> Thus, even for <i>lèse majesté</i> extradition must be granted.</p></div> @@ -22399,14 +22358,14 @@ adopt it with a restrictive clause similar to the Belgian <span class="smaller">POSITION OF HEADS OF STATES ACCORDING TO INTERNATIONAL LAW</span> </h4> -<p class="indh1">Hall, § 97—Phillimore, II. §§ 101 and 102—Bluntschli, §§ 115-125—Holtzendorff -in Holtzendorff, II. pp. 77-81—Ullmann, § 40—Rivier, I. § 32—Nys, -II. pp. 325-329—Fiore, II. No. 1097—Bonfils, No. 632—Mérignhac, -II. pp. 294-305—Bynkershoek, "De foro legatorum" (1721), c. III. § 13.</p> +<p class="indh1">Hall, § 97—Phillimore, II. §§ 101 and 102—Bluntschli, §§ 115-125—Holtzendorff +in Holtzendorff, II. pp. 77-81—Ullmann, § 40—Rivier, I. § 32—Nys, +II. pp. 325-329—Fiore, II. No. 1097—Bonfils, No. 632—Mérignhac, +II. pp. 294-305—Bynkershoek, "De foro legatorum" (1721), c. III. § 13.</p> <div class="sidenote"><p>Necessity of a Head for every State.</p></div> -<p>§ 341. As a State is an abstraction from the fact +<p>§ 341. As a State is an abstraction from the fact that a multitude of individuals live in a country under a Sovereign Government, every State must have a head as its highest organ, which represents it within and @@ -22425,7 +22384,7 @@ anarchy.</p> <div class="sidenote"><p>Recognition of Heads of States.</p></div> -<p>§ 342. In case of the accession of a new head of a +<p>§ 342. In case of the accession of a new head of a State, other States are as a rule notified. The latter usually recognise the new head through some formal act, such as a congratulation. But neither such @@ -22469,7 +22428,7 @@ considered the legitimate head of that State.</p> <div class="sidenote"><p>Competence of Heads of States.</p></div> -<p>§ 343. The head of a State, as its chief organ and<span class="pagenum"><a name="Page_427" id="Page_427">[Pg 427]</a></span> +<p>§ 343. The head of a State, as its chief organ and<span class="pagenum"><a name="Page_427" id="Page_427">[Pg 427]</a></span> representative in the totality of its international relations, acts for his State in the latter's international intercourse, with the consequence that all his legally @@ -22489,7 +22448,7 @@ would go beyond his powers, and therefore such treaty would not be binding upon his State.<a name="FNanchor_700_700" id="FNanchor_700_700"></a><a href="#Footnote_700_700" class="fnanchor">[700]</a></p> <div class="footnote"><p><a name="Footnote_700_700" id="Footnote_700_700"></a><a href="#FNanchor_700_700"><span class="label">[700]</span></a> See - below, § <a href="#Al497">497</a>.</p></div> + below, § <a href="#Al497">497</a>.</p></div> <p>On the other hand, this competence is certainly independent of the question whether a head of a State is @@ -22503,7 +22462,7 @@ always elapses before matters are settled.</p> <div class="sidenote"><p>Heads of States Objects of the Law of Nations.</p></div> -<p>§ 344. <a name="Heads_of_States344" id="Heads_of_States344"></a>Heads of States are never subjects<a name="FNanchor_701_701" id="FNanchor_701_701"></a><a href="#Footnote_701_701" class="fnanchor">[701]</a> of the +<p>§ 344. <a name="Heads_of_States344" id="Heads_of_States344"></a>Heads of States are never subjects<a name="FNanchor_701_701" id="FNanchor_701_701"></a><a href="#Footnote_701_701" class="fnanchor">[701]</a> of the Law of Nations. The position a head of a State has according to International Law is due to him, not as an individual, but as the head of his State. His position @@ -22519,15 +22478,15 @@ home States of the respective heads. Thus, heads of States are not subjects but objects of International Law, and in this regard are like any other individual.</p> -<div class="footnote"><p><a name="Footnote_701_701" id="Footnote_701_701"></a><a href="#FNanchor_701_701"><span class="label">[701]</span></a> But Heffter (§ 48) maintains the contrary, and Phillimore -(II. § 100) designates monarchs <i>mediately and derivatively</i> as subjects -of International Law. The matter is treated in detail above, §§ 13 and +<div class="footnote"><p><a name="Footnote_701_701" id="Footnote_701_701"></a><a href="#FNanchor_701_701"><span class="label">[701]</span></a> But Heffter (§ 48) maintains the contrary, and Phillimore +(II. § 100) designates monarchs <i>mediately and derivatively</i> as subjects +of International Law. The matter is treated in detail above, §§ 13 and 288-290; see also - below, § <a href="#Diplomatic_envoys384">384</a>.</p></div> + below, § <a href="#Diplomatic_envoys384">384</a>.</p></div> <div class="sidenote"><p>Honours and Privileges of Heads of States.</p></div> -<p>§ 345. All honours and privileges of heads of States +<p>§ 345. All honours and privileges of heads of States due to them by foreign States are derived from the fact that dignity is a recognised quality of States as members of the Family of Nations and International Persons.<a name="FNanchor_702_702" id="FNanchor_702_702"></a><a href="#Footnote_702_702" class="fnanchor">[702]</a> @@ -22541,7 +22500,7 @@ Municipal Law of the republics. For monarchs are sovereigns, but heads of republics are not.</p> <div class="footnote"><p><a name="Footnote_702_702" id="Footnote_702_702"></a><a href="#FNanchor_702_702"><span class="label">[702]</span></a> See - above, § <a href="#Since_dignity_is_a_recognised121">121</a>.</p></div> + above, § <a href="#Since_dignity_is_a_recognised121">121</a>.</p></div> @@ -22551,15 +22510,15 @@ sovereigns, but heads of republics are not.</p> </h4> -<p class="indh1">Vattel, I. §§ 28-45; IV. § 108—Hall, § 49—Lawrence, § 105—Phillimore, II. -§§ 108-113—Taylor, § 129—Moore, II. § 250—Bluntschli, §§ 126-153—Heffter, -§§ 48-57—Ullmann, §§ 41-42—Rivier, I. § 33—Nys, II. pp. 280-296—Calvo, -III. §§ 1454-1479—Fiore, II. Nos. 1098-1102—Bonfils, Nos. -633-647—Mérignhac, II. pp. 94-105—Pradier-Fodéré, III. Nos. 1564-1591.</p> +<p class="indh1">Vattel, I. §§ 28-45; IV. § 108—Hall, § 49—Lawrence, § 105—Phillimore, II. +§§ 108-113—Taylor, § 129—Moore, II. § 250—Bluntschli, §§ 126-153—Heffter, +§§ 48-57—Ullmann, §§ 41-42—Rivier, I. § 33—Nys, II. pp. 280-296—Calvo, +III. §§ 1454-1479—Fiore, II. Nos. 1098-1102—Bonfils, Nos. +633-647—Mérignhac, II. pp. 94-105—Pradier-Fodéré, III. Nos. 1564-1591.</p> <div class="sidenote"><p>Sovereignty of Monarchs.</p></div> -<p>§ 346. In every monarchy the monarch appears as +<p>§ 346. In every monarchy the monarch appears as the representative of the sovereignty of the State and thereby becomes a Sovereign himself, a fact which is recognised by International Law. And the difference @@ -22577,7 +22536,7 @@ indifferently sovereign according to International Law.</p> <div class="sidenote"><p>Consideration due to Monarchs at home.</p></div> -<p>§ 347. Not much need be said as regards the consideration +<p>§ 347. Not much need be said as regards the consideration due to a monarch from other States when within the boundaries of his own State. Foreign States have to give him his usual and recognised predicates<a name="FNanchor_703_703" id="FNanchor_703_703"></a><a href="#Footnote_703_703" class="fnanchor">[703]</a> @@ -22587,11 +22546,11 @@ in title and actual power there may be between them.</p> <div class="footnote"><p><a name="Footnote_703_703" id="Footnote_703_703"></a><a href="#FNanchor_703_703"><span class="label">[703]</span></a> Details as regards the predicates of monarchs are given -above, § <a href="#At_the_present_time119">119</a>.</p></div> +above, § <a href="#At_the_present_time119">119</a>.</p></div> <div class="sidenote"><p>Consideration due to Monarchs abroad.</p></div> -<p>§ 348. <a name="As_regards_however348" id="As_regards_however348"></a>As regards, however, the consideration due +<p>§ 348. <a name="As_regards_however348" id="As_regards_however348"></a>As regards, however, the consideration due to a monarch abroad from the State on whose territory he is staying in time of peace and with the consent and the knowledge of the Government, details must necessarily @@ -22649,10 +22608,10 @@ granted exterritoriality, but not other members of a Sovereign's family.<a name="FNanchor_706_706" id="FNanchor_706_706"></a><a href="#Footnote_706_706" class="fnanchor">[706]</a></p> <div class="footnote"><p><a name="Footnote_704_704" id="Footnote_704_704"></a><a href="#FNanchor_704_704"><span class="label">[704]</span></a> See - above, § <a href="#The_equality_before115">115</a>, and + above, § <a href="#The_equality_before115">115</a>, and the cases there quoted; see also -Phillimore, II. § 113<span class="smcap">A</span>, and Loening, "Die Gerichtsbarkeit über fremde -Staaten und Souveräne" (1903).</p></div> +Phillimore, II. § 113<span class="smcap">A</span>, and Loening, "Die Gerichtsbarkeit über fremde +Staaten und Souveräne" (1903).</p></div> <div class="footnote"><p><a name="Footnote_705_705" id="Footnote_705_705"></a><a href="#FNanchor_705_705"><span class="label">[705]</span></a> A celebrated case happened on November 10, 1656, in France, when Christina, Queen of Sweden, although she had already abdicated, @@ -22660,7 +22619,7 @@ sentenced her grand equerry, Monaldeschi, to death, and had him executed by her bodyguard.</p></div> <div class="footnote"><p><a name="Footnote_706_706" id="Footnote_706_706"></a><a href="#FNanchor_706_706"><span class="label">[706]</span></a> See - Rivier, I. p. 421, and Bluntschli, § 154; but, + Rivier, I. p. 421, and Bluntschli, § 154; but, according to Bluntschli, exterritoriality need not in strict law be granted even to the wife of a Sovereign.</p></div> @@ -22679,7 +22638,7 @@ speedily as possible to the frontier.</p> <div class="sidenote"><p>The Retinue of Monarchs abroad.</p></div> -<p>§ 349. The position of individuals who accompany +<p>§ 349. The position of individuals who accompany a monarch during his stay abroad is a matter of some dispute. Several publicists maintain that the home State can claim the privilege of exterritoriality as well @@ -22691,15 +22650,15 @@ of his suite be in an inferior position to a diplomatic envoy.<a name="FNanchor_708_708" id="FNanchor_708_708"></a><a href="#Footnote_708_708" class="fnanchor">[708]</a></p> <div class="footnote"><p><a name="Footnote_707_707" id="Footnote_707_707"></a><a href="#FNanchor_707_707"><span class="label">[707]</span></a> See - Bluntschli, § 154, and Hall, § 49, in contradistinction -to Martens, I. § 83.</p></div> + Bluntschli, § 154, and Hall, § 49, in contradistinction +to Martens, I. § 83.</p></div> <div class="footnote"><p><a name="Footnote_708_708" id="Footnote_708_708"></a><a href="#FNanchor_708_708"><span class="label">[708]</span></a> See - below, §§ <a href="#The_individuals_accompanying401">401</a>-405.</p></div> + below, §§ <a href="#The_individuals_accompanying401">401</a>-405.</p></div> <div class="sidenote"><p>Monarchs travelling <i>incognito</i>.</p></div> -<p>§ 350. Hitherto only the case where a monarch is +<p>§ 350. Hitherto only the case where a monarch is staying in a foreign country with the official knowledge of the latter's Government has been discussed. Such knowledge may be held in the case of a monarch travelling @@ -22721,7 +22680,7 @@ gave up his <i>incognito</i>.</p> <div class="sidenote"><p>Deposed and Abdicated Monarchs.</p></div> -<p>§ 351. All privileges mentioned must be granted to +<p>§ 351. All privileges mentioned must be granted to a monarch only as long as he is really the head of a State. As soon as he is deposed or has abdicated, he is no longer a Sovereign. Therefore in 1870 and 1872 @@ -22736,7 +22695,7 @@ such courtesy.</p> <div class="sidenote"><p>Regents.</p></div> -<p>§ 352. All privileges due to a monarch are also due +<p>§ 352. All privileges due to a monarch are also due to a Regent, at home or abroad, whilst he governs on behalf of an infant, or of a King who is through illness incapable of exercising his powers. And it matters not @@ -22745,7 +22704,7 @@ and a Prince of royal blood or not.</p> <div class="sidenote"><p>Monarchs in the service or subjects of Foreign Powers.</p></div> -<p>§ 353. When a monarch accepts any office in a foreign +<p>§ 353. When a monarch accepts any office in a foreign State, when, for instance, he serves in a foreign army, as the monarchs of the small German States have formerly frequently done, he submits to such State as far @@ -22769,7 +22728,7 @@ subject.</p> <div class="footnote"><p><a name="Footnote_709_709" id="Footnote_709_709"></a><a href="#FNanchor_709_709"><span class="label">[709]</span></a> 6 Beavan, 1; 2 House of Lords Cases, 1; see also -Phillimore, II. § 109.</p></div> +Phillimore, II. § 109.</p></div> @@ -22780,13 +22739,13 @@ Phillimore, II. § 109.</p></div> </h4> -<p class="indh1">Bluntschli, § 134—Stoerk in Holtzendorff, II. p. 661—Ullmann, § 42—Rivier, -I. § 33—Martens, I. § 80—Walther, "Das Staatshaupt in den Republiken" +<p class="indh1">Bluntschli, § 134—Stoerk in Holtzendorff, II. p. 661—Ullmann, § 42—Rivier, +I. § 33—Martens, I. § 80—Walther, "Das Staatshaupt in den Republiken" (1907), pp. 190-204.</p> <div class="sidenote"><p>Presidents not Sovereigns.</p></div> -<p>§ 354. In contradistinction to monarchies, in republics +<p>§ 354. In contradistinction to monarchies, in republics the people itself, and not a single individual, appears as the representative of the sovereignty of the State, and accordingly the people styles itself the @@ -22802,7 +22761,7 @@ he is as President.<span class="pagenum"><a name="Page_434" id="Page_434">[Pg 43 <div class="sidenote"><p>Position of Presidents in general.</p></div> -<p>§ 355. Consequently, his position at home and abroad +<p>§ 355. Consequently, his position at home and abroad cannot be compared with that of monarchs, and International Law does not empower his home State to claim for him the same, but only similar, consideration @@ -22820,7 +22779,7 @@ a Sovereign monarch.</p> <div class="sidenote"><p>Position of Presidents abroad.</p></div> -<p>§ 356. <a name="As_to_the_position_of356" id="As_to_the_position_of356"></a>As to the position of a president when abroad, +<p>§ 356. <a name="As_to_the_position_of356" id="As_to_the_position_of356"></a>As to the position of a president when abroad, writers on the Law of Nations do not agree. Some<a name="FNanchor_710_710" id="FNanchor_710_710"></a><a href="#Footnote_710_710" class="fnanchor">[710]</a> maintain that, since a president is not a Sovereign, his home State can never claim for him the same privileges @@ -22852,14 +22811,14 @@ the time being a sublime office, and the grant of exterritoriality to them is a tribute paid to the dignity of the States they represent.</p> -<div class="footnote"><p><a name="Footnote_710_710" id="Footnote_710_710"></a><a href="#FNanchor_710_710"><span class="label">[710]</span></a> Ullmann, § 42; Rivier, I. p. 423; Stoerk in Holtzendorff, +<div class="footnote"><p><a name="Footnote_710_710" id="Footnote_710_710"></a><a href="#FNanchor_710_710"><span class="label">[710]</span></a> Ullmann, § 42; Rivier, I. p. 423; Stoerk in Holtzendorff, II. p. 658.</p></div> -<div class="footnote"><p><a name="Footnote_711_711" id="Footnote_711_711"></a><a href="#FNanchor_711_711"><span class="label">[711]</span></a> Martens, I. § 80; Bluntschli, § 134; Despagnet, No. 254; -Hall, § 97.</p></div> +<div class="footnote"><p><a name="Footnote_711_711" id="Footnote_711_711"></a><a href="#FNanchor_711_711"><span class="label">[711]</span></a> Martens, I. § 80; Bluntschli, § 134; Despagnet, No. 254; +Hall, § 97.</p></div> -<div class="footnote"><p><a name="Footnote_712_712" id="Footnote_712_712"></a><a href="#FNanchor_712_712"><span class="label">[712]</span></a> Bonfils, No. 632; Nys, II. p. 287; Mérignhac, II. p. 298; -Liszt, § 13; Walther, op. cit., p. 195.</p></div> +<div class="footnote"><p><a name="Footnote_712_712" id="Footnote_712_712"></a><a href="#FNanchor_712_712"><span class="label">[712]</span></a> Bonfils, No. 632; Nys, II. p. 287; Mérignhac, II. p. 298; +Liszt, § 13; Walther, op. cit., p. 195.</p></div> @@ -22871,12 +22830,12 @@ Liszt, § 13; Walther, op. cit., p. 195.</p></div> </h4> -<p class="indh1">Heffter, § 201—Geffcken in Holtzendorff, III. p. 668—Ullmann, § 43—Rivier, -I. § 34—Bonfils, Nos. 648-651—Nys, II. pp. 330-334.</p> +<p class="indh1">Heffter, § 201—Geffcken in Holtzendorff, III. p. 668—Ullmann, § 43—Rivier, +I. § 34—Bonfils, Nos. 648-651—Nys, II. pp. 330-334.</p> <div class="sidenote"><p>Position of the Secretary for Foreign Affairs.</p></div> -<p>§ 357. As a rule nowadays no head of a State, be +<p>§ 357. As a rule nowadays no head of a State, be he a monarch or a president, negotiates directly and in person with a foreign Power, although this happens occasionally. The necessary negotiations are regularly @@ -22923,25 +22882,25 @@ Foreign Secretary himself makes this notification.<span class="pagenum"><a name= <span class="smaller">THE INSTITUTION OF LEGATION</span> </h4> -<p class="indh1">Phillimore, II. §§ 143-153—Taylor, § 274—Twiss, § 199—Geffcken in Holtzendorff, -III. pp. 605-618—Nys, II. pp. 335-339—Rivier, I. § 35—Ullmann, -§ 44—Martens, II. § 6—Gentilis, "De legationibus libri III." (1585)—Wicquefort, +<p class="indh1">Phillimore, II. §§ 143-153—Taylor, § 274—Twiss, § 199—Geffcken in Holtzendorff, +III. pp. 605-618—Nys, II. pp. 335-339—Rivier, I. § 35—Ullmann, +§ 44—Martens, II. § 6—Gentilis, "De legationibus libri III." (1585)—Wicquefort, "L'Ambassadeur et ses fonctions" (1680)—Bynkershoek, -"De foro legatorum" (1721)—Garden, "Traité complet de diplomatie" -(3 vols. 1833)—Mirus, "Das europäische Gesandtschaftsrecht" (2 vols. +"De foro legatorum" (1721)—Garden, "Traité complet de diplomatie" +(3 vols. 1833)—Mirus, "Das europäische Gesandtschaftsrecht" (2 vols. 1847)—Charles de Martens, "Le guide diplomatique" (2 vols. 1832; 6th ed. by Geffcken, 1866)—Montague Bernard, "Four Lectures on Subjects connected with Diplomacy" (1868), pp. 111-162 (3rd Lecture)—Alt, -"Handbuch des Europäischen Gesandtschaftsrechts" (1870)—Pradier-Fodéré, +"Handbuch des Europäischen Gesandtschaftsrechts" (1870)—Pradier-Fodéré, "Cours de droit diplomatique" (2 vols. 2nd ed. 1899)—Krauske, -"Die Entwickelung der ständigen Diplomatie," &c. (1885)—Lehr, -"Manuel théorique et pratique des agents diplomatiques" (1888)—Hill, +"Die Entwickelung der ständigen Diplomatie," &c. (1885)—Lehr, +"Manuel théorique et pratique des agents diplomatiques" (1888)—Hill, "History of Diplomacy in the International Development of Europe," vol. I. (1905), vol. II. (1906; the other vols. have not yet appeared).</p> <div class="sidenote"><p>Development of Legations.</p></div> -<p>§ 358. Legation as an institution for the purpose of +<p>§ 358. Legation as an institution for the purpose of negotiating between different States is as old as history, whose records are full of examples of legations sent and received by the oldest nations. And it is remarkable @@ -22990,13 +22949,13 @@ States flows.</p> Nys, "Les Origines du droit international" (1894), p. 295.</p></div> -<div class="footnote"><p><a name="Footnote_714_714" id="Footnote_714_714"></a><a href="#FNanchor_714_714"><span class="label">[714]</span></a> "De jure belli ac pacis," II. c. 28, § 3: "Optimo autem +<div class="footnote"><p><a name="Footnote_714_714" id="Footnote_714_714"></a><a href="#FNanchor_714_714"><span class="label">[714]</span></a> "De jure belli ac pacis," II. c. 28, § 3: "Optimo autem jure rejici possunt, quae nunc in usu sunt, legationes assiduae, quibus cum non sit opus, docet mos antiquus, cui illae ignoratae."</p></div> <div class="sidenote"><p>Diplomacy.</p></div> -<p>§ 359. <a name="The_rise_of_permanent359" id="The_rise_of_permanent359"></a>The rise of permanent legations created the +<p>§ 359. <a name="The_rise_of_permanent359" id="The_rise_of_permanent359"></a>The rise of permanent legations created the necessity for a new class of State officials, the so-called diplomatists; yet it was not until the end of the eighteenth<span class="pagenum"><a name="Page_439" id="Page_439">[Pg 439]</a></span> century that the terms "diplomatist" and @@ -23031,7 +22990,7 @@ diplomatists from dropping French at any moment and adopting another language instead.</p> <div class="footnote"><p><a name="Footnote_715_715" id="Footnote_715_715"></a><a href="#FNanchor_715_715"><span class="label">[715]</span></a> See - Mirus, "Das europäische Gesandtschaftsrecht," I. §§ + Mirus, "Das europäische Gesandtschaftsrecht," I. §§ 266-268.<span class="pagenum"><a name="Page_440" id="Page_440">[Pg 440]</a></span></p></div> @@ -23042,16 +23001,16 @@ adopting another language instead.</p> </h4> -<p class="indh1">Grotius, II. c. 18—Vattel, IV. §§ 55-68—Hall, § 98—Phillimore, II. §§ 115-139—Taylor, -§§ 285-288—Twiss, §§ 201-202—Wheaton, §§ 206-209—Bluntschli, -§§ 159-165—Heffter, § 200—Geffcken in Holtzendorff, III. -pp 620-631—Ullmann, § 45—Rivier, I. § 35—Nys, II. p. 339—Bonfils, -Nos. 658-667—Pradier-Fodéré, II. Nos. 1225-1256—Fiore, II. Nos. 1112-1117—Calvo, -III. §§ 1321-1325—Martens, II. §§ 7-8.</p> +<p class="indh1">Grotius, II. c. 18—Vattel, IV. §§ 55-68—Hall, § 98—Phillimore, II. §§ 115-139—Taylor, +§§ 285-288—Twiss, §§ 201-202—Wheaton, §§ 206-209—Bluntschli, +§§ 159-165—Heffter, § 200—Geffcken in Holtzendorff, III. +pp 620-631—Ullmann, § 45—Rivier, I. § 35—Nys, II. p. 339—Bonfils, +Nos. 658-667—Pradier-Fodéré, II. Nos. 1225-1256—Fiore, II. Nos. 1112-1117—Calvo, +III. §§ 1321-1325—Martens, II. §§ 7-8.</p> <div class="sidenote"><p>Conception of Right of Legation.</p></div> -<p>§ 360. <a name="Right_of_legation360" id="Right_of_legation360"></a>Right of legation is the right of a State to +<p>§ 360. <a name="Right_of_legation360" id="Right_of_legation360"></a>Right of legation is the right of a State to send and receive diplomatic envoys. The right to send such envoys is termed <i>active</i> right of legation, in contradistinction to the <i>passive</i> right of legation, as the right @@ -23083,15 +23042,15 @@ The passive right of legation is discretionary as regards the reception of <i>permanent</i> envoys only.</p> <div class="footnote"><p><a name="Footnote_716_716" id="Footnote_716_716"></a><a href="#FNanchor_716_716"><span class="label">[716]</span></a> See, - for instance, Wheaton, § 207; Heilborn, "System," p. + for instance, Wheaton, § 207; Heilborn, "System," p. 182.</p></div> <div class="footnote"><p><a name="Footnote_717_717" id="Footnote_717_717"></a><a href="#FNanchor_717_717"><span class="label">[717]</span></a> See - above, § <a href="#Many_adherents_of_the141">141</a>.</p></div> + above, § <a href="#Many_adherents_of_the141">141</a>.</p></div> <div class="sidenote"><p>What States possess the Right of Legation.</p></div> -<p>§ 361. Not every State, however, possesses the right +<p>§ 361. Not every State, however, possesses the right of legation. Such right pertains chiefly to full-Sovereign States,<a name="FNanchor_718_718" id="FNanchor_718_718"></a><a href="#Footnote_718_718" class="fnanchor">[718]</a> for other States possess this right under certain conditions only.</p> @@ -23104,7 +23063,7 @@ diplomatic envoys. That they are actually not diplomatic envoys, although so treated, becomes apparent from the fact that they are not agents for international affairs of States, but exclusively for affairs of the Roman Catholic Church. (See - above, § <a href="#The_Law_of_Guaranty106">106</a>.)</p></div> + above, § <a href="#The_Law_of_Guaranty106">106</a>.)</p></div> @@ -23118,7 +23077,7 @@ there may be exceptions to this rule. Thus, according to the Peace Treaty of Kainardgi of 1774 between Russia and Turkey, the two half-Sovereign principalities of Moldavia and Wallachia had the right of sending -Chargés d'Affaires to foreign Powers. Thus, further, +Chargés d'Affaires to foreign Powers. Thus, further, the late South African Republic, which was a State under British suzerainty in the opinion of Great Britain, used to keep permanent diplomatic envoys in several @@ -23139,7 +23098,7 @@ sends and receives several diplomatic envoys. <span class="pagenum"><a name="Pag <div class="sidenote"><p>Right of Legation by whom exercised.</p></div> -<p>§ 362. As, according to International Law, a State +<p>§ 362. As, according to International Law, a State is represented in its international relations by its head, it is he who acts in the exercise of his State's right of legation. But Municipal Law may, just as it designates @@ -23151,7 +23110,7 @@ Law of his State, delegate<a name="FNanchor_719_719" id="FNanchor_719_719"></a>< right to any representative he chooses.</p> <div class="footnote"><p><a name="Footnote_719_719" id="Footnote_719_719"></a><a href="#FNanchor_719_719"><span class="label">[719]</span></a> See - Phillimore, II. §§ 126-133, where several interesting + Phillimore, II. §§ 126-133, where several interesting cases of such delegation are discussed.</p></div> <p>It may, however, in consequence of revolutionary @@ -23184,7 +23143,7 @@ abdicated nor a deposed head has a right to send and receive diplomatic envoys.<a name="FNanchor_720_720" id="FNanchor_720_720"></a><a href="#Footnote_720_720" class="fnanchor">[720]</a></p> <div class="footnote"><p><a name="Footnote_720_720" id="Footnote_720_720"></a><a href="#FNanchor_720_720"><span class="label">[720]</span></a> See - Phillimore, II. §§ 124-125, where the case of Bishop + Phillimore, II. §§ 124-125, where the case of Bishop Ross, ambassador of Mary Queen of Scots, is discussed.</p></div> @@ -23193,14 +23152,14 @@ Ross, ambassador of Mary Queen of Scots, is discussed.</p></div> <span>KINDS AND CLASSES OF DIPLOMATIC ENVOYS</span> </h4> -<p class="indh1">Vattel, IV. §§ 69-75—Phillimore, II. §§ 211-224—Twiss, I. §§ 204-209—Moore, -IV. § 624—Heffter, § 208—Geffcken in Holtzendorff, III. pp. 635-646—Calvo, -III. §§ 1326-1336—Bonfils, Nos. 668-676—Pradier-Fodéré, III. -§§ 1277-1290—Rivier, I. pp. 443-453—Nys, II. pp. 342-352.</p> +<p class="indh1">Vattel, IV. §§ 69-75—Phillimore, II. §§ 211-224—Twiss, I. §§ 204-209—Moore, +IV. § 624—Heffter, § 208—Geffcken in Holtzendorff, III. pp. 635-646—Calvo, +III. §§ 1326-1336—Bonfils, Nos. 668-676—Pradier-Fodéré, III. +§§ 1277-1290—Rivier, I. pp. 443-453—Nys, II. pp. 342-352.</p> <div class="sidenote"><p>Envoys Ceremonial and Political.</p></div> -<p>§ 363. Two different kinds of diplomatic envoys are +<p>§ 363. Two different kinds of diplomatic envoys are to be distinguished—namely, such as are sent for political negotiations and such as are sent for the purpose of ceremonial function or notification of changes in the @@ -23224,7 +23183,7 @@ safety of their persons and the members of their suites.</p> <div class="sidenote"><p>Classes of Diplomatic Envoys.</p></div> -<p>§ 364. Diplomatic envoys accredited to a State differ +<p>§ 364. Diplomatic envoys accredited to a State differ in class. These classes did not exist in the early stages of International Law. But during the sixteenth century<span class="pagenum"><a name="Page_444" id="Page_444">[Pg 444]</a></span> a distinction between two classes of diplomatic @@ -23244,11 +23203,11 @@ matter ought to be settled by an international understanding, and they agreed, therefore, on March 19, 1815, upon the establishment of three different classes—namely, first, Ambassadors; second, Ministers Plenipotentiary -and Envoys Extraordinary; third, Chargés +and Envoys Extraordinary; third, Chargés d'Affaires. And the five Powers assembled at the Congress of Aix-la-Chapelle in 1818 agreed upon a fourth class—namely, Ministers Resident, to rank between -Ministers Plenipotentiary and Chargés d'Affaires. +Ministers Plenipotentiary and Chargés d'Affaires. All the other States either expressly or tacitly accepted these arrangements, so that nowadays the four classes are an established order. Although their privileges are @@ -23257,7 +23216,7 @@ and they must therefore be treated separately.</p> <div class="sidenote"><p>Ambassadors.</p></div> -<p>§ 365. <a name="Ambassadors_form_the_first365" id="Ambassadors_form_the_first365"></a>Ambassadors form the first class. Only +<p>§ 365. <a name="Ambassadors_form_the_first365" id="Ambassadors_form_the_first365"></a>Ambassadors form the first class. Only States enjoying royal honours<a name="FNanchor_721_721" id="FNanchor_721_721"></a><a href="#Footnote_721_721" class="fnanchor">[721]</a> are entitled to send and to receive Ambassadors, as also is the Holy See, whose first-class envoys are called <i>Nuncios</i>, or <i>Legati a latere</i> @@ -23272,11 +23231,11 @@ important business should go through the hands of a Foreign Secretary.</p> <div class="footnote"><p><a name="Footnote_721_721" id="Footnote_721_721"></a><a href="#FNanchor_721_721"><span class="label">[721]</span></a> See - above, § <a href="#The_States_are_divided_into117">117, No. 1</a>.</p></div> + above, § <a href="#The_States_are_divided_into117">117, No. 1</a>.</p></div> <div class="sidenote"><p>Ministers Plenipotentiary and Envoys Extraordinary.</p></div> -<p>§ 366. The second class, the Ministers Plenipotentiary +<p>§ 366. The second class, the Ministers Plenipotentiary and Envoys Extraordinary, to which also belong the Papal Internuncios, are not considered to be personal representatives of the heads of their States. @@ -23287,31 +23246,31 @@ there is no difference between these two classes.</p> <div class="sidenote"><p>Ministers Resident.</p></div> -<p>§ 367. The third class, the Ministers Resident, enjoy +<p>§ 367. The third class, the Ministers Resident, enjoy fewer honours and rank below the Ministers Plenipotentiary. But beyond the fact that Ministers Resident do not enjoy the title "Excellency," there is no difference between them and the Ministers Plenipotentiary.</p> -<div class="sidenote"><p>Chargés d'Affaires.</p></div> +<div class="sidenote"><p>Chargés d'Affaires.</p></div> -<p>§ 368. The fourth class, the Chargés d'Affaires, +<p>§ 368. The fourth class, the Chargés d'Affaires, differs chiefly in one point from the first, second, and third class—namely, in so far as its members are accredited from Foreign Office to Foreign Office, whereas the members of the other classes are accredited from -head of State to head of State. Chargés d'Affaires +head of State to head of State. Chargés d'Affaires do not enjoy, therefore, so many honours as other diplomatic envoys. And it must be specially mentioned -that a distinction ought to be made between a Chargé +that a distinction ought to be made between a Chargé d'Affaires who is the head of a Legation, and who, therefore, is accredited from Foreign Office to Foreign -Office, and a Chargé d'Affaires <i>ad interim</i>. The latter +Office, and a Chargé d'Affaires <i>ad interim</i>. The latter is a member of a Legation whom the head of the Legation delegates for the purpose of taking his place during -absence on leave. Such Chargé d'Affaires <i>ad interim</i>, -who had better be called a Chargé des Affaires,<a name="FNanchor_722_722" id="FNanchor_722_722"></a><a href="#Footnote_722_722" class="fnanchor">[722]</a> ranks<span class="pagenum"><a name="Page_446" id="Page_446">[Pg 446]</a></span> -below the ordinary Chargé d'Affaires; he is not accredited +absence on leave. Such Chargé d'Affaires <i>ad interim</i>, +who had better be called a Chargé des Affaires,<a name="FNanchor_722_722" id="FNanchor_722_722"></a><a href="#Footnote_722_722" class="fnanchor">[722]</a> ranks<span class="pagenum"><a name="Page_446" id="Page_446">[Pg 446]</a></span> +below the ordinary Chargé d'Affaires; he is not accredited from Foreign Office to Foreign Office, but is simply a delegate of the absent head of the Legation.</p> @@ -23320,7 +23279,7 @@ simply a delegate of the absent head of the Legation.</p> <div class="sidenote"><p>The Diplomatic Corps.</p></div> -<p>§ 369. All the Diplomatic Envoys accredited to the +<p>§ 369. All the Diplomatic Envoys accredited to the same State form, according to a diplomatic usage, a body which is styled the "Diplomatic Corps." The head of this body, the so-called "Doyen," is the Papal @@ -23340,13 +23299,13 @@ honours due to diplomatic envoys.</p> </h4> -<p class="indh1">Vattel, IV. §§ 76-77—Phillimore, II. §§ 227-231—Twiss, I. §§ 212-214—Ullmann, -§ 48—Calvo, III. §§ 1343-1345—Bonfils, Nos. 677-680—Wheaton, -§§ 217-220—Moore, IV. §§ 632-635.</p> +<p class="indh1">Vattel, IV. §§ 76-77—Phillimore, II. §§ 227-231—Twiss, I. §§ 212-214—Ullmann, +§ 48—Calvo, III. §§ 1343-1345—Bonfils, Nos. 677-680—Wheaton, +§§ 217-220—Moore, IV. §§ 632-635.</p> <div class="sidenote"><p>Person and Qualification of the Envoy.</p></div> -<p>§ 370. International Law has no rules as regards the +<p>§ 370. International Law has no rules as regards the qualification of the individuals whom a State can appoint as diplomatic envoys, States being naturally competent to act according to discretion, although @@ -23360,7 +23319,7 @@ even the Municipal Laws have no provisions at all. The question is sometimes discussed whether females<a name="FNanchor_723_723" id="FNanchor_723_723"></a><a href="#Footnote_723_723" class="fnanchor">[723]</a> might<span class="pagenum"><a name="Page_447" id="Page_447">[Pg 447]</a></span> be appointed envoys. History relates a few cases of female diplomatists. Thus, for example, Louis -XIV. of France accredited in 1646 Madame de Guébriant +XIV. of France accredited in 1646 Madame de Guébriant ambassador to the Court of Poland. During the last two centuries, however, no such case has to my knowledge occurred, although I doubt not that International @@ -23369,18 +23328,18 @@ a female as diplomatic envoy. But under the present circumstances many States would refuse to receive her.</p> <div class="footnote"><p><a name="Footnote_723_723" id="Footnote_723_723"></a><a href="#FNanchor_723_723"><span class="label">[723]</span></a> See - Mirus, "Das europäische Gesandtschaftsrecht," I. §§ -127-128; Phillimore, II. § 134; and Focherini, "Le Signore Ambasciatrici + Mirus, "Das europäische Gesandtschaftsrecht," I. §§ +127-128; Phillimore, II. § 134; and Focherini, "Le Signore Ambasciatrici dei secoli XVII. e XVIII. e loro posizione nel diritto diplomatico" (1909).</p></div> <div class="sidenote"><p>Letter of Credence, Full Powers, Passports.</p></div> -<p>§ 371. The appointment of an individual as a diplomatic +<p>§ 371. The appointment of an individual as a diplomatic envoy is announced to the State to which he is accredited in certain official papers to be handed in by the envoy to the receiving State. <i>Letter of Credence</i> -(<i>lettre de créance</i>) is the designation of the document +(<i>lettre de créance</i>) is the designation of the document in which the head of the State accredits a permanent ambassador or minister to a foreign State. Every such envoy receives a sealed Letter of Credence and an @@ -23389,7 +23348,7 @@ he sends the copy to the Foreign Office in order to make his arrival officially known. The sealed original, however, is handed in personally by the envoy to the head of the State to whom he is accredited. -Chargés d'Affaires receive a Letter of Credence too, but +Chargés d'Affaires receive a Letter of Credence too, but as they are accredited from Foreign Office to Foreign Office, their Letter of Credence is signed, not by the head of their home State, but by its Foreign Office. @@ -23426,7 +23385,7 @@ his dismissal.</p> <div class="sidenote"><p>Combined Legations.</p></div> -<p>§ 372. As a rule, a State appoints different individuals +<p>§ 372. As a rule, a State appoints different individuals as permanent diplomatic envoys to different States, but sometimes a State appoints the same individual as permanent diplomatic envoy to several States. @@ -23437,7 +23396,7 @@ represents several States.</p> <div class="sidenote"><p>Appointment of several Envoys.</p></div> -<p>§ 373. In former times States used frequently<a name="FNanchor_724_724" id="FNanchor_724_724"></a><a href="#Footnote_724_724" class="fnanchor">[724]</a> to +<p>§ 373. In former times States used frequently<a name="FNanchor_724_724" id="FNanchor_724_724"></a><a href="#Footnote_724_724" class="fnanchor">[724]</a> to appoint more than one permanent diplomatic envoy as their representative in a foreign State. Although this would hardly occur nowadays, there is no rule against @@ -23448,7 +23407,7 @@ such cases one of the several envoys is appointed senior, to whom the others are subordinate.</p> <div class="footnote"><p><a name="Footnote_724_724" id="Footnote_724_724"></a><a href="#FNanchor_724_724"><span class="label">[724]</span></a> See - Mirus, op. cit. I. §§ 117-119.<span class="pagenum"><a name="Page_449" id="Page_449">[Pg 449]</a></span></p></div> + Mirus, op. cit. I. §§ 117-119.<span class="pagenum"><a name="Page_449" id="Page_449">[Pg 449]</a></span></p></div> @@ -23459,14 +23418,14 @@ to whom the others are subordinate.</p> </h4> -<p class="indh1">Vattel, IV. §§ 65-67—Hall, § 98—Phillimore, II. §§ 133-139—Twiss, I. §§ 202-203—Taylor, -§§ 285-290—Moore, IV. §§ 635, 637-638—Martens, II. § 8—Calvo, -III. §§ 1353-1356—Pradier-Fodéré, III. §§ 1253-1260—Fiore, II. +<p class="indh1">Vattel, IV. §§ 65-67—Hall, § 98—Phillimore, II. §§ 133-139—Twiss, I. §§ 202-203—Taylor, +§§ 285-290—Moore, IV. §§ 635, 637-638—Martens, II. § 8—Calvo, +III. §§ 1353-1356—Pradier-Fodéré, III. §§ 1253-1260—Fiore, II. Nos. 1118-1120—Rivier, I. pp. 455-457.</p> <div class="sidenote"><p>Duty to receive Diplomatic Envoys.</p></div> -<p>§ 374. Every member of the Family of Nations that +<p>§ 374. Every member of the Family of Nations that possesses the passive right of legation is under ordinary circumstances bound to receive diplomatic envoys accredited to itself from other States for the purpose @@ -23509,13 +23468,13 @@ receive a legation from the other belligerent, as war involves the rupture of all peaceable relations.</p> <div class="footnote"><p><a name="Footnote_725_725" id="Footnote_725_725"></a><a href="#FNanchor_725_725"><span class="label">[725]</span></a> But this is not generally recognised. -See Vattel, IV. § 67; Phillimore, -II. § 138; and Pradier-Fodéré, +See Vattel, IV. § 67; Phillimore, +II. § 138; and Pradier-Fodéré, III. No. 1255.</p></div> <div class="sidenote"><p>Refusal to receive a certain Individual.</p></div> -<p>§ 375. But the refusal to receive an envoy must not +<p>§ 375. But the refusal to receive an envoy must not be confounded with the refusal to receive a certain individual as envoy. A State may be ready to receive a permanent or temporary envoy, but may object to @@ -23548,7 +23507,7 @@ vacant. In 1885, when, as above mentioned, Austria refused reception to Mr. Keiley as ambassador of the United States, the latter did not appoint another, although Mr. Keiley resigned, and the legation was for -several years left to the care of a Chargé d'Affaires.<a name="FNanchor_727_727" id="FNanchor_727_727"></a><a href="#Footnote_727_727" class="fnanchor">[727]</a> +several years left to the care of a Chargé d'Affaires.<a name="FNanchor_727_727" id="FNanchor_727_727"></a><a href="#Footnote_727_727" class="fnanchor">[727]</a> To avoid such conflicts it is a good practice of many States never to appoint an individual as envoy without having ascertained beforehand whether the individual @@ -23566,23 +23525,23 @@ decided that a British subject accredited to Great Britain by the Chinese Government as a Secretary of its embassy and received by Great Britain in that capacity without an express condition that he should remain subject to British jurisdiction, was exempt from British -jurisdiction. See, however, article 15 of the Règlement sur les -Immunités Diplomatiques, adopted in 1895 by the Institute of +jurisdiction. See, however, article 15 of the Règlement sur les +Immunités Diplomatiques, adopted in 1895 by the Institute of International Law (see Annuaire, XIV. p. 244), which denies to such an -individual exemption from jurisdiction. See also Phillimore, II. § 135, -and Twiss, I. § 203.</p></div> +individual exemption from jurisdiction. See also Phillimore, II. § 135, +and Twiss, I. § 203.</p></div> <div class="footnote"><p><a name="Footnote_727_727" id="Footnote_727_727"></a><a href="#FNanchor_727_727"><span class="label">[727]</span></a> See - Moore, IV. § 638, p. 480.</p></div> + Moore, IV. § 638, p. 480.</p></div> <div class="footnote"><p><a name="Footnote_728_728" id="Footnote_728_728"></a><a href="#FNanchor_728_728"><span class="label">[728]</span></a> The question is of interest whether the privileges due to diplomatists must be granted on his journey home to an individual to whom reception as an envoy is refused. I think the question ought to be -answered in the affirmative; see, however, Moore, IV. § 666, p. 668.</p></div> +answered in the affirmative; see, however, Moore, IV. § 666, p. 668.</p></div> <div class="sidenote"><p>Mode and Solemnity of Reception.</p></div> -<p>§ 376. In case a State does not object to the reception +<p>§ 376. In case a State does not object to the reception of a person as diplomatic envoy accredited to itself, his actual reception takes place as soon as he has arrived at the place of his designation. But the @@ -23594,7 +23553,7 @@ with all the usual ceremonies. For that purpose the<span class="pagenum"><a name envoy sends a copy of his credentials to the Foreign Office, which arranges a special audience with the head of the State for the envoy, when he delivers in person -his sealed credentials.<a name="FNanchor_729_729" id="FNanchor_729_729"></a><a href="#Footnote_729_729" class="fnanchor">[729]</a> If the envoy be a Chargé +his sealed credentials.<a name="FNanchor_729_729" id="FNanchor_729_729"></a><a href="#Footnote_729_729" class="fnanchor">[729]</a> If the envoy be a Chargé d'Affaires only, he is received in audience by the Secretary of Foreign Affairs, to whom he hands his credentials. Through the formal reception the envoy becomes @@ -23610,11 +23569,11 @@ State, his passports furnishing sufficient proof of his diplomatic character.</p> <div class="footnote"><p><a name="Footnote_729_729" id="Footnote_729_729"></a><a href="#FNanchor_729_729"><span class="label">[729]</span></a> Details concerning reception of envoys are given by Twiss, -I. § 215, and Rivier, I. p. 467.</p></div> +I. § 215, and Rivier, I. p. 467.</p></div> <div class="sidenote"><p>Reception of Envoys to Congresses and Conferences.</p></div> -<p>§ 377. It must be specially observed that all these +<p>§ 377. It must be specially observed that all these details regarding the reception of diplomatic envoys accredited to a State do not apply to the reception of envoys sent to represent the several States at a Congress @@ -23641,12 +23600,12 @@ produce them in exchange with one another.<span class="pagenum"><a name="Page_45 <span class="smaller">FUNCTIONS OF DIPLOMATIC ENVOYS</span> </h4> -<p class="indh1">Rivier, I. § 37—Ullmann, § 49—Bonfils, Nos. 681-683—Pradier-Fodéré, III. -§§ 1346-1376.</p> +<p class="indh1">Rivier, I. § 37—Ullmann, § 49—Bonfils, Nos. 681-683—Pradier-Fodéré, III. +§§ 1346-1376.</p> <div class="sidenote"><p>On Diplomatic Functions in general.</p></div> -<p>§ 378. A distinction must be made between functions +<p>§ 378. A distinction must be made between functions of permanent envoys and of envoys for temporary purposes. The functions of the latter, who are either envoys ceremonial or such envoys political as are @@ -23663,7 +23622,7 @@ functions.</p> <div class="sidenote"><p>Negotiation.</p></div> -<p>§ 379. A permanent ambassador or other envoy +<p>§ 379. A permanent ambassador or other envoy represents his home State in the totality of its international relations not only with the State to which he is accredited, but also with other States. He is the @@ -23683,7 +23642,7 @@ to affairs international is taking place between them.<span class="pagenum"><a n <div class="sidenote"><p>Observation.</p></div> -<p>§ 380. But these are not all the functions of permanent +<p>§ 380. But these are not all the functions of permanent diplomatic envoys. Their task is, further, to observe attentively every occurrence which might affect the interest of their home States, and to report such @@ -23698,7 +23657,7 @@ exercising their function of observation.</p> <div class="sidenote"><p>Protection.</p></div> -<p>§ 381. A third task of diplomatic envoys is the +<p>§ 381. A third task of diplomatic envoys is the protection of the persons, property, and interests of such subjects of their home States as are within the boundaries of the State to which they are accredited. @@ -23713,7 +23672,7 @@ to his compatriots.</p> <div class="sidenote"><p>Miscellaneous Functions.</p></div> -<p>§ 382. Negotiation, observation, and protection are +<p>§ 382. Negotiation, observation, and protection are tasks common to all diplomatic envoys of every State. But a State may order its permanent envoys to perform other tasks, such as the registration of deaths, births, @@ -23733,7 +23692,7 @@ of witnesses on oath.</p> <div class="sidenote"><p>Envoys not to interfere in Internal Politics.</p></div> -<p>§ 383. But it must be specially emphasised that +<p>§ 383. But it must be specially emphasised that envoys must not interfere with the internal political life of the State to which they are accredited. It certainly belongs to their functions to watch the political @@ -23756,7 +23715,7 @@ abused his office for the purpose of interfering with internal politics.</p> <div class="footnote"><p><a name="Footnote_730_730" id="Footnote_730_730"></a><a href="#FNanchor_730_730"><span class="label">[730]</span></a> See - Hall (§ 98**), Taylor (§ 322), and Moore (IV. § 640), + Hall (§ 98**), Taylor (§ 322), and Moore (IV. § 640), who discuss a number of cases, especially that of Lord Sackville, who received his passports in 1888 from the United States of America for an alleged interference in the Presidential election.</p></div> @@ -23772,7 +23731,7 @@ alleged interference in the Presidential election.</p></div> <div class="sidenote"><p>Diplomatic Envoys objects of International Law.</p></div> -<p>§ 384. <a name="Diplomatic_envoys384" id="Diplomatic_envoys384"></a>Diplomatic envoys are just as little subjects +<p>§ 384. <a name="Diplomatic_envoys384" id="Diplomatic_envoys384"></a>Diplomatic envoys are just as little subjects of International Law as are heads of States; and the arguments regarding the position of such heads<a name="FNanchor_731_731" id="FNanchor_731_731"></a><a href="#Footnote_731_731" class="fnanchor">[731]</a> must<span class="pagenum"><a name="Page_456" id="Page_456">[Pg 456]</a></span> also be applied to the position of diplomatic envoys, @@ -23793,11 +23752,11 @@ International Law, and is in this regard like any other individual.</p> <div class="footnote"><p><a name="Footnote_731_731" id="Footnote_731_731"></a><a href="#FNanchor_731_731"><span class="label">[731]</span></a> See - above, § <a href="#Heads_of_States344">344</a>.</p></div> + above, § <a href="#Heads_of_States344">344</a>.</p></div> <div class="sidenote"><p>Privileges due to Diplomatic Envoys.</p></div> -<p>§ 385. <a name="Privileges_due_to_diplomatic385" id="Privileges_due_to_diplomatic385"></a>Privileges due to diplomatic envoys, apart +<p>§ 385. <a name="Privileges_due_to_diplomatic385" id="Privileges_due_to_diplomatic385"></a>Privileges due to diplomatic envoys, apart from ceremonial honours, have reference to their inviolability and to their so-called exterritoriality. The reasons why these privileges must be granted are that @@ -23813,7 +23772,7 @@ such a degree as would materially hamper the exercise of their functions. It is equally clear that liability to interference with their full and free intercourse with their home States through letters, telegrams, and -couriers would wholly nullify their <i>raison d'être</i>. In +couriers would wholly nullify their <i>raison d'être</i>. In this case it would be impossible for them to send independent and secret reports to or receive similar instructions<span class="pagenum"><a name="Page_457" id="Page_457">[Pg 457]</a></span> from their home States. From the consideration @@ -23822,7 +23781,7 @@ seem to be inseparable attributes of the very existence of diplomatic envoys.<a name="FNanchor_733_733" id="FNanchor_733_733"></a><a href="#Footnote_733_733" class="fnanchor">[733]</a></p> <div class="footnote"><p><a name="Footnote_732_732" id="Footnote_732_732"></a><a href="#FNanchor_732_732"><span class="label">[732]</span></a> See - above, § <a href="#Since_dignity_is_a_recognised121">121</a>.</p></div> + above, § <a href="#Since_dignity_is_a_recognised121">121</a>.</p></div> <div class="footnote"><p><a name="Footnote_733_733" id="Footnote_733_733"></a><a href="#FNanchor_733_733"><span class="label">[733]</span></a> The Institute of International Law, at its meeting at Cambridge in 1895, discussed the privileges of diplomatic envoys, and @@ -23836,17 +23795,17 @@ p. 240.</p></div> <span class="smaller">INVIOLABILITY OF DIPLOMATIC ENVOYS</span> </h4> -<p class="indh1">Vattel, IV. §§ 80-107—Hall, §§ 50, 98*—Phillimore, II. §§ 154-175—Twiss, -I. §§ 216-217—Moore, IV. §§ 657-659—Ullmann, § 50—Geffcken in -Holtzendorff, III. pp. 648-654—Rivier, I. § 38—Nys, II. pp. 372-374—Bonfils, -Nos. 684-699—Pradier-Fodéré, III. §§ 1382-1393—Mérignhac, II. -pp. 264-273—Fiore, II. Nos. 1127-1143—Calvo, III. §§ 1480-1498—Martens, -II. § 11—Crouzet, "De l'inviolabilité ... des agents +<p class="indh1">Vattel, IV. §§ 80-107—Hall, §§ 50, 98*—Phillimore, II. §§ 154-175—Twiss, +I. §§ 216-217—Moore, IV. §§ 657-659—Ullmann, § 50—Geffcken in +Holtzendorff, III. pp. 648-654—Rivier, I. § 38—Nys, II. pp. 372-374—Bonfils, +Nos. 684-699—Pradier-Fodéré, III. §§ 1382-1393—Mérignhac, II. +pp. 264-273—Fiore, II. Nos. 1127-1143—Calvo, III. §§ 1480-1498—Martens, +II. § 11—Crouzet, "De l'inviolabilité ... des agents diplomatiques" (1875).</p> <div class="sidenote"><p>Protection due to Diplomatic Envoys.</p></div> -<p>§ 386. <a name="Diplomatic_envoys386" id="Diplomatic_envoys386"></a>Diplomatic envoys are just as sacrosanct as +<p>§ 386. <a name="Diplomatic_envoys386" id="Diplomatic_envoys386"></a>Diplomatic envoys are just as sacrosanct as heads of States. They must, therefore, on the one hand, be afforded special protection as regards the safety of their persons, and, on the other hand, they @@ -23879,16 +23838,16 @@ confided to the protection of another envoy.<a name="FNanchor_736_736" id="FNanc <div class="footnote"><p><a name="Footnote_735_735" id="Footnote_735_735"></a><a href="#FNanchor_735_735"><span class="label">[735]</span></a> 7 Anne, c. 12, sect. 3-6. This statute, which was passed in 1708 in consequence of the Russian Ambassador in London having been -arrested for a debt of £50, has always been considered as declaratory of +arrested for a debt of £50, has always been considered as declaratory of the existing law in England, and not as creating new law.</p></div> <div class="footnote"><p><a name="Footnote_736_736" id="Footnote_736_736"></a><a href="#FNanchor_736_736"><span class="label">[736]</span></a> See - above, § <a href="#The_Law_of_Guaranty106">106</a> (case of Montagnini), and - below, § <a href="#A_mission_may411">411</a>.</p></div> + above, § <a href="#The_Law_of_Guaranty106">106</a> (case of Montagnini), and + below, § <a href="#A_mission_may411">411</a>.</p></div> <div class="sidenote"><p>Exemption from Criminal Jurisdiction.</p></div> -<p>§ 387. <a name="As_regards_the387" id="As_regards_the387"></a>As regards the exemption of diplomatic +<p>§ 387. <a name="As_regards_the387" id="As_regards_the387"></a>As regards the exemption of diplomatic envoys from criminal jurisdiction, theory and practice of International Law agree nowadays<a name="FNanchor_737_737" id="FNanchor_737_737"></a><a href="#Footnote_737_737" class="fnanchor">[737]</a> upon the fact that the receiving States have no right, under any circumstances @@ -23916,10 +23875,10 @@ latter will certainly request his recall or send him back at once.</p> <div class="footnote"><p><a name="Footnote_737_737" id="Footnote_737_737"></a><a href="#FNanchor_737_737"><span class="label">[737]</span></a> In former times there was no unanimity amongst publicists. -See Phillimore, II. § 154.</p></div> +See Phillimore, II. § 154.</p></div> <div class="footnote"><p><a name="Footnote_738_738" id="Footnote_738_738"></a><a href="#FNanchor_738_738"><span class="label">[738]</span></a> The point is thoroughly discussed by Beling, "Die -strafrechtliche Bedeutung der Exterritorialität" (1896), pp. 71-90.</p></div> +strafrechtliche Bedeutung der Exterritorialität" (1896), pp. 71-90.</p></div> <p>History records many cases of diplomatic envoys who have conspired against the receiving States, but @@ -23934,12 +23893,12 @@ in England, De Bass, conspired against the life of Cromwell; he was ordered to leave the country within twenty-four hours.<a name="FNanchor_739_739" id="FNanchor_739_739"></a><a href="#Footnote_739_739" class="fnanchor">[739]</a></p> -<div class="footnote"><p><a name="Footnote_739_739" id="Footnote_739_739"></a><a href="#FNanchor_739_739"><span class="label">[739]</span></a> These and other cases are discussed by Phillimore, II. §§ +<div class="footnote"><p><a name="Footnote_739_739" id="Footnote_739_739"></a><a href="#FNanchor_739_739"><span class="label">[739]</span></a> These and other cases are discussed by Phillimore, II. §§ 160-165.</p></div> <div class="sidenote"><p>Limitation of Inviolability.</p></div> -<p>§ 388. As diplomatic envoys are sacrosanct, the +<p>§ 388. As diplomatic envoys are sacrosanct, the principle of their inviolability is generally recognised. But there is one exception. For if a diplomatic envoy commits an act of violence which disturbs the internal @@ -23964,7 +23923,7 @@ placing himself in dangerous or awkward positions, such as in a disorderly crowd.<a name="FNanchor_741_741" id="FNanchor_741_741"></a><a href="#Footnote_741_741" class="fnanchor">[741]</a></p> <div class="footnote"><p><a name="Footnote_740_740" id="Footnote_740_740"></a><a href="#FNanchor_740_740"><span class="label">[740]</span></a> Details regarding these cases are given by Phillimore, II. -§§ 166 and 170.</p></div> +§§ 166 and 170.</p></div> <div class="footnote"><p><a name="Footnote_741_741" id="Footnote_741_741"></a><a href="#FNanchor_741_741"><span class="label">[741]</span></a> See article 6 of the rules regarding diplomatic immunities @@ -23979,23 +23938,23 @@ Cambridge in 1895 (Annuaire, XIV. p. 240).</p></div> </h4> -<p class="indh1">Vattel, IV. §§ 80-119—Hall, §§ 50, 52, 53—Westlake, I. pp. 263-273—Phillimore, -II. §§ 176-210—Taylor, §§ 299-315—Twiss, I. §§ 217-221—Moore, -II. §§ 291-304 and IV. §§ 660-669—Ullmann, § 50—Geffcken in +<p class="indh1">Vattel, IV. §§ 80-119—Hall, §§ 50, 52, 53—Westlake, I. pp. 263-273—Phillimore, +II. §§ 176-210—Taylor, §§ 299-315—Twiss, I. §§ 217-221—Moore, +II. §§ 291-304 and IV. §§ 660-669—Ullmann, § 50—Geffcken in Holtzendorff, III. pp. 654-659—Nys, II. pp. 353-385—Rivier, I. 38—Bonfils, -Nos. 700-721—Pradier-Fodéré, III. §§ 1396-1495—Mérignhac, II. -pp. 249-293—Fiore, II. Nos. 1145-1163—Calvo, III. §§ 1499-1531—Martens, -II. §§ 12-14—Gottschalck, "Die Exterritorialität der Gesandten" -(1878)—Heyking, "L'exterritorialité" (1889)—Odier, "Des privilèges et -immunités des agents diplomatiques" (1890)—Vercamer, "Des franchises -diplomatiques et spécialement de l'exterritorialité" (1891)—Droin, -"L'exterritorialité des agents diplomatiques" (1895)—Mirre, "Die -Stellung der völkerrechtlichen Literatur zur Lehre von den sogenannten -Nebenrechten der gesandschaftlichen Functionäre" (1904).</p> +Nos. 700-721—Pradier-Fodéré, III. §§ 1396-1495—Mérignhac, II. +pp. 249-293—Fiore, II. Nos. 1145-1163—Calvo, III. §§ 1499-1531—Martens, +II. §§ 12-14—Gottschalck, "Die Exterritorialität der Gesandten" +(1878)—Heyking, "L'exterritorialité" (1889)—Odier, "Des privilèges et +immunités des agents diplomatiques" (1890)—Vercamer, "Des franchises +diplomatiques et spécialement de l'exterritorialité" (1891)—Droin, +"L'exterritorialité des agents diplomatiques" (1895)—Mirre, "Die +Stellung der völkerrechtlichen Literatur zur Lehre von den sogenannten +Nebenrechten der gesandschaftlichen Functionäre" (1904).</p> <div class="sidenote"><p>Reason and Fictional Character of Exterritoriality.</p></div> -<p>§ 389. The exterritoriality which must be granted +<p>§ 389. The exterritoriality which must be granted to diplomatic envoys by the Municipal Laws of all the members of the Family of Nations is not, as in the case of sovereign heads of States, based on the principle @@ -24014,14 +23973,14 @@ exterritoriality of envoys is actualised by a body of privileges which must be severally discussed.</p> <div class="footnote"><p><a name="Footnote_742_742" id="Footnote_742_742"></a><a href="#FNanchor_742_742"><span class="label">[742]</span></a> With a few exceptions (see - Droin, "L'exterritorialité des + Droin, "L'exterritorialité des agents diplomatiques" (1895), pp. 32-43), all publicists accept the term and the fiction of exterritoriality.</p></div> <div class="sidenote"><p>Immunity of Domicile.</p></div> -<p>§ 390. <a name="The_first_of_these_privileges390" id="The_first_of_these_privileges390"></a>The first of these privileges is immunity of -domicile, the so-called <i>Franchise de l'hôtel</i>. The present +<p>§ 390. <a name="The_first_of_these_privileges390" id="The_first_of_these_privileges390"></a>The first of these privileges is immunity of +domicile, the so-called <i>Franchise de l'hôtel</i>. The present immunity of domicile has developed from the former condition of things, when the official residences of envoys were in every point considered to be outside the territory @@ -24066,21 +24025,21 @@ it.<a name="FNanchor_746_746" id="FNanchor_746_746"></a><a href="#Footnote_746_7 <div class="footnote"><p><a name="Footnote_743_743" id="Footnote_743_743"></a><a href="#FNanchor_743_743"><span class="label">[743]</span></a> Although this right of asylum was certainly recognised by the States in former centuries, it is of interest to note that Grotius did not consider it postulated by International Law, for he says of this -right (II. c. 18, § 8): "Ex concessione pendet ejus apud quem agit. +right (II. c. 18, § 8): "Ex concessione pendet ejus apud quem agit. Istud enim juris gentium non est." See also Bynkershoek, "De foro legat." c. 21.</p></div> <div class="footnote"><p><a name="Footnote_744_744" id="Footnote_744_744"></a><a href="#FNanchor_744_744"><span class="label">[744]</span></a> See - Martens, "Causes Célèbres," I. p. 178.</p></div> + Martens, "Causes Célèbres," I. p. 178.</p></div> <div class="footnote"><p><a name="Footnote_745_745" id="Footnote_745_745"></a><a href="#FNanchor_745_745"><span class="label">[745]</span></a> See - Martens, "Causes Célèbres," II. p. 52.</p></div> + Martens, "Causes Célèbres," II. p. 52.</p></div> <div class="footnote"><p><a name="Footnote_746_746" id="Footnote_746_746"></a><a href="#FNanchor_746_746"><span class="label">[746]</span></a> The South American States, Chili excepted, still grant the right to foreign envoys to afford asylum to political refugees in time of revolution. It is, however, acknowledged that this right is not based upon a rule of International Law, but merely upon <i>local</i> usage. See -Hall, § 52; Westlake, I. p. 272; Moore, II. §§ 291-304; Chilbert in A.J. +Hall, § 52; Westlake, I. p. 272; Moore, II. §§ 291-304; Chilbert in A.J. III. (1909), pp. 562-595; Robbin in R.G. XV. (1908), pp. 461-508; Moore, "Asylum in Legations and Consulates, and in Vessels" (1892). That actually in times of revolution and of persecution of certain classes of @@ -24090,7 +24049,7 @@ practice does not shake the validity of the general rule of International Law according to which there is no obligation on the part of the receiving State to grant to envoys the right of affording asylum to individuals not belonging to their suites. See, however, Moore, II. -§ 293.</p></div> +§ 293.</p></div> <p>Nowadays the official residences of envoys are <i>in a sense and in some respects only</i> considered as though @@ -24169,7 +24128,7 @@ afterwards executed at Memel.</p> <div class="sidenote"><p>Exemption from Criminal and Civil Jurisdiction.</p></div> -<p>§ 391. The second privilege of envoys in reference +<p>§ 391. The second privilege of envoys in reference to their exterritoriality is their exemption from criminal and civil jurisdiction. As their exemption from criminal jurisdiction is also a consequence of their inviolability, @@ -24201,10 +24160,10 @@ regards mercantile<a name="FNanchor_749_749" id="FNanchor_749_749"></a><a href=" on the territory of the receiving State.</p> <div class="footnote"><p><a name="Footnote_747_747" id="Footnote_747_747"></a><a href="#FNanchor_747_747"><span class="label">[747]</span></a> See - above, §§ <a href="#As_regards_the387">387</a>-388.</p></div> + above, §§ <a href="#As_regards_the387">387</a>-388.</p></div> <div class="footnote"><p><a name="Footnote_748_748" id="Footnote_748_748"></a><a href="#FNanchor_748_748"><span class="label">[748]</span></a> See - Martens, "Causes Célèbres," II. p. 282.</p></div> + Martens, "Causes Célèbres," II. p. 282.</p></div> <div class="footnote"><p><a name="Footnote_749_749" id="Footnote_749_749"></a><a href="#FNanchor_749_749"><span class="label">[749]</span></a> The statute of 7 Anne, c. 12, on which the exemption of diplomatic envoys from English jurisdiction is based, does not exclude @@ -24217,7 +24176,7 @@ also Westlake, I. p. 267.</p></div> <div class="sidenote"><p>Exemption from Subpœna as witness.</p></div> -<p>§ 392. The third privilege of envoys in reference +<p>§ 392. The third privilege of envoys in reference to their exterritoriality is exemption from subpœna as witnesses. No envoy can be obliged, or even required, to appear as a witness in a civil or criminal or administrative @@ -24244,12 +24203,12 @@ was not taken, and the Government of the United States asked the Dutch Government to recall him.<a name="FNanchor_750_750" id="FNanchor_750_750"></a><a href="#Footnote_750_750" class="fnanchor">[750]</a></p> <div class="footnote"><p><a name="Footnote_750_750" id="Footnote_750_750"></a><a href="#FNanchor_750_750"><span class="label">[750]</span></a> See - Wharton, I. § 98; Moore, IV. § 662; and Calvo, III. § + Wharton, I. § 98; Moore, IV. § 662; and Calvo, III. § 1520.</p></div> <div class="sidenote"><p>Exemption from Police.</p></div> -<p>§ 393. The fourth privilege of envoys in reference to +<p>§ 393. The fourth privilege of envoys in reference to their exterritoriality is exemption from the police of the receiving States. Orders and regulations of the police do in no way bind them. On the other hand, @@ -24278,7 +24237,7 @@ of reasonable pressure upon the envoy.</p> <div class="sidenote"><p>Exemption from Taxes and the like.</p></div> -<p>§ 394. The fifth privilege of envoys in reference to +<p>§ 394. The fifth privilege of envoys in reference to their exterritoriality is exemption from taxes and the like. As an envoy, through his exterritoriality, is considered not to be subjected to the territorial supremacy @@ -24310,7 +24269,7 @@ Garbutt, L.R. 24 Q.B. 368. See also Westlake, I. p. 268.</p></div> <div class="sidenote"><p>Right of Chapel.</p></div> -<p>§ 395. A sixth privilege of envoys in reference to +<p>§ 395. A sixth privilege of envoys in reference to their exterritoriality is the so-called Right of Chapel (<i>Droit de chapelle</i> or <i>Droit du culte</i>). This is the privilege of having a private chapel for the practice of his<span class="pagenum"><a name="Page_468" id="Page_468">[Pg 468]</a></span> @@ -24336,7 +24295,7 @@ part therein.</p> <div class="sidenote"><p>Self-jurisdiction.</p></div> -<p>§ 396. The seventh and last privilege of envoys in +<p>§ 396. The seventh and last privilege of envoys in reference to their exterritoriality is self-jurisdiction within certain limits. As the members of his retinue are considered exterritorial, the receiving State has no @@ -24359,8 +24318,8 @@ man was handed over for execution to the English authorities, but James I. reprieved him.<a name="FNanchor_752_752" id="FNanchor_752_752"></a><a href="#Footnote_752_752" class="fnanchor">[752]</a></p> <div class="footnote"><p><a name="Footnote_752_752" id="Footnote_752_752"></a><a href="#FNanchor_752_752"><span class="label">[752]</span></a> See - Martens, "Causes Célèbres," I. p. 391. See also the two -cases reported by Calvo, III. § 1545.</p></div> + Martens, "Causes Célèbres," I. p. 391. See also the two +cases reported by Calvo, III. § 1545.</p></div> @@ -24370,15 +24329,15 @@ cases reported by Calvo, III. § 1545.</p></div> </h4> -<p class="indh1">Vattel, IV. §§ 84-86—Hall, §§ 99-101—Phillimore, II. §§ 172-175—Taylor, -§§ 293-295—Moore, IV. §§ 643-644—Twiss, I. § 222—Wheaton, §§ 242-247—Ullmann, -§ 52—Geffcken in Holtzendorff, III. pp. 665-668—Heffter, -§ 207—Rivier, § 39—Nys, II. p. 390—Pradier-Fodéré, III. -§ 1394—Fiore, II. Nos. 1143-1144—Calvo, III. §§ 1532-1539.</p> +<p class="indh1">Vattel, IV. §§ 84-86—Hall, §§ 99-101—Phillimore, II. §§ 172-175—Taylor, +§§ 293-295—Moore, IV. §§ 643-644—Twiss, I. § 222—Wheaton, §§ 242-247—Ullmann, +§ 52—Geffcken in Holtzendorff, III. pp. 665-668—Heffter, +§ 207—Rivier, § 39—Nys, II. p. 390—Pradier-Fodéré, III. +§ 1394—Fiore, II. Nos. 1143-1144—Calvo, III. §§ 1532-1539.</p> <div class="sidenote"><p>Possible Cases.</p></div> -<p>§ 397. Although, when an individual is accredited +<p>§ 397. Although, when an individual is accredited as diplomatic envoy by one State to another, these two States only are directly concerned in his appointment, the question must be discussed, what position @@ -24395,7 +24354,7 @@ affairs of a third State.</p> <div class="sidenote"><p>Envoy travelling through Territory of third State.</p></div> -<p>§ 398. If an envoy travels through the territory of +<p>§ 398. If an envoy travels through the territory of a third State incognito or for his pleasure only, there is no doubt that he cannot claim any special privileges whatever. He is in exactly the same position as any @@ -24417,7 +24376,7 @@ no other privileges,<a name="FNanchor_753_753" id="FNanchor_753_753"></a><a href and exterritoriality need be granted to the envoy. And the right of innocent passage does not include the right to stop on the territory longer than is necessary -for the passage. Thus, in 1854, Soulé, the envoy of +for the passage. Thus, in 1854, Soulé, the envoy of the United States of America at Madrid, who had landed at Calais, intending to return to Madrid <i>via</i> Paris, was provisionally stopped at Calais for the purpose @@ -24425,20 +24384,20 @@ of ascertaining whether he intended to make a stay in Paris, which the French Government wanted to prevent, because he was a French refugee naturalised in America and was reported to have made speeches -against the Emperor Napoleon. Soulé at once left +against the Emperor Napoleon. Soulé at once left Calais, and the French Government declared, during the correspondence with the United States in the -matter, that there was no objection to Soulé's traversing +matter, that there was no objection to Soulé's traversing France on his way to Madrid, but they would not allow him to make a sojourn in Paris or anywhere else in France.<a name="FNanchor_754_754" id="FNanchor_754_754"></a><a href="#Footnote_754_754" class="fnanchor">[754]</a></p> <div class="footnote"><p><a name="Footnote_753_753" id="Footnote_753_753"></a><a href="#FNanchor_753_753"><span class="label">[753]</span></a> The matter, which has always been disputed, is fully -discussed by Twiss, I. § 222, who also quotes the opinion of Grotius, +discussed by Twiss, I. § 222, who also quotes the opinion of Grotius, Bynkershoek, and Vattel.</p></div> <div class="footnote"><p><a name="Footnote_754_754" id="Footnote_754_754"></a><a href="#FNanchor_754_754"><span class="label">[754]</span></a> See - Wharton, I. § 97, and Moore, IV. § 643.</p></div> + Wharton, I. § 97, and Moore, IV. § 643.</p></div> <p>It must be specially remarked that no right of passage need be granted if the third State is at war with @@ -24446,7 +24405,7 @@ the sending or receiving State. The envoy of a belligerent,<span class="pagenum" who travels through the territory of the other belligerent to reach the place of his destination, may be seized and treated as a prisoner of war. Thus, in -1744, when the French Ambassador, Maréchal de Belle-Isle, +1744, when the French Ambassador, Maréchal de Belle-Isle, on his way to Berlin, passed through the territory of Hanover, which country was then, together with England, at war with France, he was made a prisoner @@ -24454,7 +24413,7 @@ of war and sent to England.</p> <div class="sidenote"><p>Envoy found by Belligerent on occupied Enemy Territory.</p></div> -<p>§ 399. <a name="Wh399" id="Wh399"></a>When in time of war a belligerent occupies +<p>§ 399. <a name="Wh399" id="Wh399"></a>When in time of war a belligerent occupies the capital of an enemy State and finds there envoys of other States, these envoys do not lose their diplomatic privileges as long as the State to which they are accredited @@ -24485,11 +24444,11 @@ to grant that right, and did not alter their decision<span class="pagenum"><a na although the Government of the United States protested.<a name="FNanchor_755_755" id="FNanchor_755_755"></a><a href="#Footnote_755_755" class="fnanchor">[755]</a></p> <div class="footnote"><p><a name="Footnote_755_755" id="Footnote_755_755"></a><a href="#FNanchor_755_755"><span class="label">[755]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Wi157">vol. II. § 157</a>, and Wharton, I. § 97.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Wi157">vol. II. § 157</a>, and Wharton, I. § 97.</p></div> <div class="sidenote"><p>Envoy interfering with affairs of a third State.</p></div> -<p>§ 400. There is no doubt that an envoy must not +<p>§ 400. There is no doubt that an envoy must not interfere with affairs concerning the State to which he is accredited and a third State. If nevertheless he does interfere, he enjoys no privileges whatever against such @@ -24500,7 +24459,7 @@ of war by the latter and not released till 1736, although France protested.<a name="FNanchor_756_756" id="FNanchor_756_756"></a><a href="#Footnote_756_756" class="fnanchor">[756]</a></p> <div class="footnote"><p><a name="Footnote_756_756" id="Footnote_756_756"></a><a href="#FNanchor_756_756"><span class="label">[756]</span></a> See - Martens, "Causes Célèbres," I. p. 207.</p></div> + Martens, "Causes Célèbres," I. p. 207.</p></div> @@ -24510,24 +24469,24 @@ although France protested.<a name="FNanchor_756_756" id="FNanchor_756_756"></a>< </h4> -<p class="indh1">Vattel, IV. §§ 120-124—Hall, § 51—Phillimore, II. §§ 186-193—Twiss, I. -§ 218—Moore, IV. §§ 664-665—Ullmann, §§ 47 and 51—Geffcken in -Holtzendorff, III. pp. 660-661—Heffter, § 221—Rivier, I. pp. 458-461—Nys, -II. pp. 386-390—Pradier-Fodéré, III. §§ 1472-1486—Fiore, II. Nos. -1164-1168—Calvo, III. §§ 1348-1350—Martens, II. § 16—Roederer, -"De l'application des immunités de l'ambassadeur au personnel de +<p class="indh1">Vattel, IV. §§ 120-124—Hall, § 51—Phillimore, II. §§ 186-193—Twiss, I. +§ 218—Moore, IV. §§ 664-665—Ullmann, §§ 47 and 51—Geffcken in +Holtzendorff, III. pp. 660-661—Heffter, § 221—Rivier, I. pp. 458-461—Nys, +II. pp. 386-390—Pradier-Fodéré, III. §§ 1472-1486—Fiore, II. Nos. +1164-1168—Calvo, III. §§ 1348-1350—Martens, II. § 16—Roederer, +"De l'application des immunités de l'ambassadeur au personnel de l'ambassade" (1904), pp. 22-84.</p> <div class="sidenote"><p>Different Classes of Members of Retinue.</p></div> -<p>§ 401. <a name="The_individuals_accompanying401" id="The_individuals_accompanying401"></a>The individuals accompanying an envoy +<p>§ 401. <a name="The_individuals_accompanying401" id="The_individuals_accompanying401"></a>The individuals accompanying an envoy officially, or in his private service, or as members of his family, or as couriers, compose his retinue. The members of the retinue belong, therefore, to four different classes. All those individuals who are officially attached to an envoy are members of the legation and are appointed by the home State of the envoy. To -this first class belong the Councillors, Attachés, Secretaries +this first class belong the Councillors, Attachés, Secretaries of the Legation; the Chancellor of the Legation and his assistants; the interpreters, and the like; the chaplain, the doctor, and the legal advisers, provided @@ -24556,7 +24515,7 @@ secrecy of the despatches.</p> <div class="sidenote"><p>Privileges of Members of Legation.</p></div> -<p>§ 402. It is a universally recognised<a name="FNanchor_757_757" id="FNanchor_757_757"></a><a href="#Footnote_757_757" class="fnanchor">[757]</a> rule of International +<p>§ 402. It is a universally recognised<a name="FNanchor_757_757" id="FNanchor_757_757"></a><a href="#Footnote_757_757" class="fnanchor">[757]</a> rule of International Law that all members of a legation are as inviolable and exterritorial as the envoy himself. They must, therefore, be granted by the receiving State @@ -24579,7 +24538,7 @@ being prosecuted in Chili; he was tried, found guilty, and executed at Santiago on July 5, 1910.</p> <div class="footnote"><p><a name="Footnote_757_757" id="Footnote_757_757"></a><a href="#FNanchor_757_757"><span class="label">[757]</span></a> Some authors, however, plead for an abrogation of this -rule. See Martens, II. § 16.</p></div> +rule. See Martens, II. § 16.</p></div> <div class="footnote"><p><a name="Footnote_758_758" id="Footnote_758_758"></a><a href="#FNanchor_758_758"><span class="label">[758]</span></a> A case of this kind occurred in 1904 in the United States. Mr. Gurney, Secretary of the British Legation at Washington, was fined @@ -24589,7 +24548,7 @@ imposed remitted.</p></div> <div class="sidenote"><p>Privileges of Private Servants.</p></div> -<p>§ 403. It is a customary rule of International Law +<p>§ 403. It is a customary rule of International Law that the receiving State must grant to all persons in the private service of the envoy and of the members of his legation, provided such persons are not subjects @@ -24608,12 +24567,12 @@ Britain. When, in 1827, a coachman of Mr. Gallatin, the American Minister in London, committed an assault outside the embassy, he was arrested in the stable of the embassy and charged before a local magistrate, and the British Foreign Office refused to recognise the -exemption of the coachman from the local jurisdiction. See Wharton, I. § -94, and Hall, § 50.</p></div> +exemption of the coachman from the local jurisdiction. See Wharton, I. § +94, and Hall, § 50.</p></div> <div class="sidenote"><p>Privileges of Family of Envoy.</p></div> -<p>§ 404. Although the wife of the envoy, his children, +<p>§ 404. Although the wife of the envoy, his children, and such of his near relatives as live within his family and under his roof belong to his retinue, there is a distinction to be made as regards their privileges. His @@ -24624,7 +24583,7 @@ no general rule of International Law can safely be said to be generally recognised, but that they must be<span class="pagenum"><a name="Page_475" id="Page_475">[Pg 475]</a></span> granted exemption from civil and criminal jurisdiction. But even this rule was formerly not generally recognised. -Thus, when in 1653 Don Pantaleon Sà, the brother of +Thus, when in 1653 Don Pantaleon Sà , the brother of the Portuguese Ambassador in London and a member of his suite, killed an Englishman named Greenway, he was arrested, tried in England, found guilty, and executed.<a name="FNanchor_760_760" id="FNanchor_760_760"></a><a href="#Footnote_760_760" class="fnanchor">[760]</a> @@ -24641,14 +24600,14 @@ agreed to the murderer being prosecuted in Belgium. The trial took place in July 1907, but Waddington was acquitted by the Belgian jury.</p> -<div class="footnote"><p><a name="Footnote_760_760" id="Footnote_760_760"></a><a href="#FNanchor_760_760"><span class="label">[760]</span></a> The case is discussed by Phillimore, II. § 169.</p></div> +<div class="footnote"><p><a name="Footnote_760_760" id="Footnote_760_760"></a><a href="#FNanchor_760_760"><span class="label">[760]</span></a> The case is discussed by Phillimore, II. § 169.</p></div> <div class="footnote"><p><a name="Footnote_761_761" id="Footnote_761_761"></a><a href="#FNanchor_761_761"><span class="label">[761]</span></a> See R.G. XIV. (1907), pp. 159-165.</p></div> <div class="sidenote"><p>Privileges of Couriers of Envoy.</p></div> -<p>§ 405. <a name="To405" id="To405"></a>To insure the safety and secrecy of the diplomatic +<p>§ 405. <a name="To405" id="To405"></a>To insure the safety and secrecy of the diplomatic despatches they bear, couriers must be granted exemption from civil and criminal jurisdiction and afforded special protection during the exercise of their @@ -24668,15 +24627,15 @@ special passports for the purpose of their legitimation.<span class="pagenum"><a </h4> -<p class="indh1">Vattel, IV. §§ 125-126—Hall, § 98**—Phillimore, II. §§ 237-241—Moore, -IV. §§ 636, 639, 640, 666—Taylor, §§ 320-323—Wheaton, §§ 250-251—Ullmann, -§ 53—Heffter, §§ 223-226—Rivier, I. § 40—Nys, II. p. 392—Bonfils, -Nos. 730-732—Pradier-Fodéré, III. §§ 1515-1535—Fiore, II. -Nos. 1169-1175—Calvo, III. §§ 1363-1367—Martens, II. § 17.</p> +<p class="indh1">Vattel, IV. §§ 125-126—Hall, § 98**—Phillimore, II. §§ 237-241—Moore, +IV. §§ 636, 639, 640, 666—Taylor, §§ 320-323—Wheaton, §§ 250-251—Ullmann, +§ 53—Heffter, §§ 223-226—Rivier, I. § 40—Nys, II. p. 392—Bonfils, +Nos. 730-732—Pradier-Fodéré, III. §§ 1515-1535—Fiore, II. +Nos. 1169-1175—Calvo, III. §§ 1363-1367—Martens, II. § 17.</p> <div class="sidenote"><p>Termination in contradistinction to Suspension.</p></div> -<p>§ 406. A diplomatic mission may come to an end +<p>§ 406. A diplomatic mission may come to an end from eleven different causes—namely, accomplishment of the object for which the mission was sent; expiration of such Letters of Credence as were given to an @@ -24705,7 +24664,7 @@ during the duration of the suspension.</p> <div class="sidenote"><p>Accomplishment of Object of Mission.</p></div> -<p>§ 407. A mission comes to an end through the fulfilment +<p>§ 407. A mission comes to an end through the fulfilment of its objects in all cases of missions for special<span class="pagenum"><a name="Page_477" id="Page_477">[Pg 477]</a></span> purposes. Such cases may be ceremonial functions like representations at weddings, funerals, coronations; or @@ -24717,7 +24676,7 @@ enjoy all their privileges on their way home.</p> <div class="sidenote"><p>Expiration of Letter of Credence.</p></div> -<p>§ 408. If a Letter of Credence for a specified time +<p>§ 408. If a Letter of Credence for a specified time only is given to an envoy, his mission terminates with the expiration of such time. A temporary Letter of Credence may, for instance, be given to an individual @@ -24727,18 +24686,18 @@ and the appointment of his successor.</p> <div class="sidenote"><p>Recall.</p></div> -<p>§ 409. The mission of an envoy, be he permanently +<p>§ 409. The mission of an envoy, be he permanently or only temporarily appointed, terminates through his recall by the sending State. If this recall is not caused by unfriendly acts of the receiving State but by other circumstances, the envoy receives a Letter of Recall -from the head, or, in case he is only a Chargé d'Affaires, +from the head, or, in case he is only a Chargé d'Affaires, from the Foreign Secretary of his home State, and he<a name="FNanchor_762_762" id="FNanchor_762_762"></a><a href="#Footnote_762_762" class="fnanchor">[762]</a> hands this letter over to the head of the receiving State -in a solemn audience, or in the case of a Chargé d'Affaires +in a solemn audience, or in the case of a Chargé d'Affaires to the Foreign Secretary. In exchange for the Letter of Recall the envoy receives his passports and a so-called -<i>Lettre de récréance</i>, a letter in which the head of +<i>Lettre de récréance</i>, a letter in which the head of the receiving State (or the Foreign Secretary) acknowledges the Letter of Recall. Although therewith his mission ends, he enjoys nevertheless all his privileges @@ -24759,18 +24718,18 @@ not recognise the act of its envoy as misconduct.</p> <div class="footnote"><p><a name="Footnote_762_762" id="Footnote_762_762"></a><a href="#FNanchor_762_762"><span class="label">[762]</span></a> But sometimes his successor presents the letter recalling his predecessor to the head of the receiving State, or to the Foreign -Secretary in the case of Chargés d'Affaires.</p></div> +Secretary in the case of Chargés d'Affaires.</p></div> <div class="footnote"><p><a name="Footnote_763_763" id="Footnote_763_763"></a><a href="#FNanchor_763_763"><span class="label">[763]</span></a> See - the interesting cases discussed by Moore, IV. § 666.</p></div> + the interesting cases discussed by Moore, IV. § 666.</p></div> <div class="footnote"><p><a name="Footnote_764_764" id="Footnote_764_764"></a><a href="#FNanchor_764_764"><span class="label">[764]</span></a> Notable cases of request of recall of envoys are reported -by Taylor, § 322; Hall, § 98**; Moore, IV. § 639.</p></div> +by Taylor, § 322; Hall, § 98**; Moore, IV. § 639.</p></div> <div class="sidenote"><p>Promotion to a higher Class.</p></div> -<p>§ 410. When an envoy remains at his post, but is -promoted to a higher class—for instance, when a Chargé +<p>§ 410. When an envoy remains at his post, but is +promoted to a higher class—for instance, when a Chargé d'Affaires is created a Minister Resident or a Minister Plenipotentiary is created an Ambassador—his original mission technically ends, and he receives therefore a @@ -24778,7 +24737,7 @@ new Letter of Credence.</p> <div class="sidenote"><p>Delivery of Passports.</p></div> -<p>§ 411. <a name="A_mission_may411" id="A_mission_may411"></a>A mission may terminate, further, through +<p>§ 411. <a name="A_mission_may411" id="A_mission_may411"></a>A mission may terminate, further, through the delivery of his passports to an envoy by the receiving State. The reason for such dismissal of an envoy may be either gross misconduct on his part or @@ -24793,19 +24752,19 @@ departing envoy and confided to the protection<a name="FNanchor_765_765" id="FNa some other foreign legation.</p> <div class="footnote"><p><a name="Footnote_765_765" id="Footnote_765_765"></a><a href="#FNanchor_765_765"><span class="label">[765]</span></a> As regards the case of Montagnini, see - above, §§ <a href="#The_Law_of_Guaranty106">106</a> + above, §§ <a href="#The_Law_of_Guaranty106">106</a> and <a href="#Diplomatic_envoys386">386</a>.</p></div> <div class="sidenote"><p>Request for Passports.</p></div> -<p>§ 412. Without being recalled, an envoy may on his +<p>§ 412. Without being recalled, an envoy may on his own account ask for his passports and depart in consequence of ill-treatment by the receiving State. This may or may not lead to a rupture of diplomatic intercourse.<span class="pagenum"><a name="Page_479" id="Page_479">[Pg 479]</a></span></p> <div class="sidenote"><p>Outbreak of War.</p></div> -<p>§ 413. <a name="Wh413" id="Wh413"></a>When war breaks out between the sending +<p>§ 413. <a name="Wh413" id="Wh413"></a>When war breaks out between the sending and the receiving State before their envoys accredited to each other are recalled, their mission nevertheless comes to an end. They receive their passports, but @@ -24813,11 +24772,11 @@ nevertheless they must be granted their privileges<a name="FNanchor_766_766" id= their way home.</p> <div class="footnote"><p><a name="Footnote_766_766" id="Footnote_766_766"></a><a href="#FNanchor_766_766"><span class="label">[766]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th98">vol. II. § 98</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th98">vol. II. § 98</a>.</p></div> <div class="sidenote"><p>Constitutional Changes.</p></div> -<p>§ 414. If the head of the sending or receiving State +<p>§ 414. If the head of the sending or receiving State is a Sovereign, his death or abdication terminates the missions sent and received by him, and all envoys remaining at their posts must receive new Letters of @@ -24834,12 +24793,12 @@ received, no certain rule exists.<a name="FNanchor_767_767" id="FNanchor_767_767 therefore, upon the merits of the special case.</p> <div class="footnote"><p><a name="Footnote_767_767" id="Footnote_767_767"></a><a href="#FNanchor_767_767"><span class="label">[767]</span></a> Writers on International Law differ concerning this point. -See, for instance, Ullmann, § 53, in contradistinction to Rivier, I. p. +See, for instance, Ullmann, § 53, in contradistinction to Rivier, I. p. 517.</p></div> <div class="sidenote"><p>Revolutionary Changes of Government.</p></div> -<p>§ 415. A revolutionary movement in the sending +<p>§ 415. A revolutionary movement in the sending or receiving State which creates a new government, changing, for example, a republic into a monarchy or a monarchy into a republic, or deposing a Sovereign @@ -24862,11 +24821,11 @@ constitutional or revolutionary changes in the headship of a State.</p> <div class="footnote"><p><a name="Footnote_768_768" id="Footnote_768_768"></a><a href="#FNanchor_768_768"><span class="label">[768]</span></a> See - below, § <a href="#It_is_universally438">438</a>.</p></div> + below, § <a href="#It_is_universally438">438</a>.</p></div> <div class="sidenote"><p>Extinction of sending or receiving State.</p></div> -<p>§ 416. If the sending or receiving State of a mission +<p>§ 416. If the sending or receiving State of a mission is extinguished by voluntary merger into another State or through annexation in consequence of conquest, the mission terminates <i>ipso facto</i>. In case of annexation @@ -24887,11 +24846,11 @@ But as long as the annexation is not notified and recognised, the receiving States have no duty to interfere.</p> <div class="footnote"><p><a name="Footnote_769_769" id="Footnote_769_769"></a><a href="#FNanchor_769_769"><span class="label">[769]</span></a> See - above, § <a href="#When_a_State_merges82">82</a>.</p></div> + above, § <a href="#When_a_State_merges82">82</a>.</p></div> <div class="sidenote"><p>Death of Envoy.</p></div> -<p>§ 417. A mission ends, lastly, by the death of the +<p>§ 417. A mission ends, lastly, by the death of the envoy. As soon as an envoy is dead, his effects, and especially his papers, must be sealed. This is done by a member of the dead envoy's legation, or, if there be @@ -24924,15 +24883,15 @@ deceased envoy, and that no death duties can be demanded.<span class="pagenum">< </h4> -<p class="indh1">Hall, § 105—Phillimore, II. §§ 243-246—Halleck, I. p. 369—Taylor, §§ 325-326—Twiss, -I. § 223—Ullmann, §§ 54-55—Bulmerincq in Holtzendorff, -II. pp. 687-695—Heffter, §§ 241-242—Rivier, I. § 41—Nys, II. pp. 394-399—Calvo, -III. §§ 1368-1372—Bonfils, Nos. 731-743—Pradier-Fodéré, -IV. §§ 2034-2043—Martens, II. §§ 18-19—Fiore, II. Nos. 1176-1178—Warden, +<p class="indh1">Hall, § 105—Phillimore, II. §§ 243-246—Halleck, I. p. 369—Taylor, §§ 325-326—Twiss, +I. § 223—Ullmann, §§ 54-55—Bulmerincq in Holtzendorff, +II. pp. 687-695—Heffter, §§ 241-242—Rivier, I. § 41—Nys, II. pp. 394-399—Calvo, +III. §§ 1368-1372—Bonfils, Nos. 731-743—Pradier-Fodéré, +IV. §§ 2034-2043—Martens, II. §§ 18-19—Fiore, II. Nos. 1176-1178—Warden, "A Treatise on the Origin, Nature, &c., of the Consular Establishment" (1814)—Miltitz, Manuel des Consuls, 5 vols. (1837-1839)—Cussy, -"Règlements consulaires des principaux États maritimes" (1851)—H. B. -Oppenheim, "Handbuch der Consulate aller Länder" (1854)—Clercq +"Règlements consulaires des principaux États maritimes" (1851)—H. B. +Oppenheim, "Handbuch der Consulate aller Länder" (1854)—Clercq et Vallat, "Guide pratique des consulats" (5th ed. 1898)—Salles, "L'institution des consulats, son origine, &c." (1898)—Chester Lloyd Jones, "The Consular Service of the United States. Its History and @@ -24942,7 +24901,7 @@ in R.I. 2nd Ser. VIII. (1906), pp. 479-507 and 717-750.</p> <div class="sidenote"><p>Development of the Institution of Consuls.</p></div> -<p>§ 418. The roots of the consular institution go back +<p>§ 418. The roots of the consular institution go back to the second half of the Middle Ages. In the commercial towns of Italy, Spain, and France the merchants used to appoint by election one or more of their @@ -24994,15 +24953,15 @@ regarding the duties of their consuls abroad, such as the Consular Act passed by England in 1826.<a name="FNanchor_772_772" id="FNanchor_772_772"></a><a href="#Footnote_772_772" class="fnanchor">[772]</a></p> <div class="footnote"><p><a name="Footnote_770_770" id="Footnote_770_770"></a><a href="#FNanchor_770_770"><span class="label">[770]</span></a> See - Twiss, I. §§ 253-263.</p></div> + Twiss, I. §§ 253-263.</p></div> -<div class="footnote"><p><a name="Footnote_771_771" id="Footnote_771_771"></a><a href="#FNanchor_771_771"><span class="label">[771]</span></a> Phillimore, II. § 255, gives a list of such treaties.</p></div> +<div class="footnote"><p><a name="Footnote_771_771" id="Footnote_771_771"></a><a href="#FNanchor_771_771"><span class="label">[771]</span></a> Phillimore, II. § 255, gives a list of such treaties.</p></div> <div class="footnote"><p><a name="Footnote_772_772" id="Footnote_772_772"></a><a href="#FNanchor_772_772"><span class="label">[772]</span></a> 6 Geo. IV. c. 87.</p></div> <div class="sidenote"><p>General Character of Consuls.</p></div> -<p>§ 419. Nowadays consuls are agents of States residing +<p>§ 419. Nowadays consuls are agents of States residing abroad for purposes of various kinds, but mainly in the interests of commerce and navigation of the appointing State. As they are not diplomatic representatives, @@ -25030,9 +24989,9 @@ envoys, although they may have the title of privileges, if such privileges are not specially provided for by treaties between the home State and the State in which they reside. Different, however, is the case in -which a consul is at the same time accredited as Chargé +which a consul is at the same time accredited as Chargé d'Affaires, and in which, therefore, he combines two -different offices; for as Chargé d'Affaires he is a diplomatic +different offices; for as Chargé d'Affaires he is a diplomatic envoy and enjoys all the privileges of such an envoy, provided he has received a Letter of Credence.<span class="pagenum"><a name="Page_485" id="Page_485">[Pg 485]</a></span></p> @@ -25044,17 +25003,17 @@ envoy, provided he has received a Letter of Credence.<span class="pagenum"><a na </h4> -<p class="indh1">Hall, "Foreign Powers and Jurisdiction," § 13—Phillimore, II. §§ 253-254—Halleck, -I. p. 371—Taylor, § 528—Moore, V. § 696—Ullmann, § 57—Bulmerincq -in Holtzendorff, III. pp. 695-701—Rivier, I. § 41—Calvo, -III. §§ 1373-1376—Bonfils, Nos. 743-748—Pradier-Fodéré, IV. §§ 2050-2055—Mérignhac, -II. pp. 320-333—Martens, II. § 20—Stowell, "Le +<p class="indh1">Hall, "Foreign Powers and Jurisdiction," § 13—Phillimore, II. §§ 253-254—Halleck, +I. p. 371—Taylor, § 528—Moore, V. § 696—Ullmann, § 57—Bulmerincq +in Holtzendorff, III. pp. 695-701—Rivier, I. § 41—Calvo, +III. §§ 1373-1376—Bonfils, Nos. 743-748—Pradier-Fodéré, IV. §§ 2050-2055—Mérignhac, +II. pp. 320-333—Martens, II. § 20—Stowell, "Le Consul," pp. 186-206—"General Instructions for His Majesty's Consular Officers" (1907).</p> <div class="sidenote"><p>Different kinds of Consuls.</p></div> -<p>§ 420. Consuls are of two kinds. They are either +<p>§ 420. Consuls are of two kinds. They are either specially sent and paid for the administration of their consular office (<i>Consules missi</i>), or they are appointed from individuals, in most cases merchants, residing in @@ -25085,7 +25044,7 @@ special privileges for professional consuls.</p> <div class="sidenote"><p>Consular Districts.</p></div> -<p>§ 421. As the functions of consuls are of a more or +<p>§ 421. As the functions of consuls are of a more or less local character, most States appoint several consuls on the territory of other larger States, limiting the<span class="pagenum"><a name="Page_486" id="Page_486">[Pg 486]</a></span> duties of the several consuls within certain districts @@ -25106,7 +25065,7 @@ authorities have to grant the consular privileges, if any.</p> <div class="sidenote"><p>Different Classes of Consuls.</p></div> -<p>§ 422. Four classes of consuls are generally distinguished +<p>§ 422. Four classes of consuls are generally distinguished according to rank: consuls-general, consuls, vice-consuls, and agents-consular. Consuls-general are appointed either as the head of several consular districts, @@ -25143,7 +25102,7 @@ as a rule, the notarial functions of a consular officer.</p> <div class="sidenote"><p>Consuls subordinate to Diplomatic Envoys.</p></div> -<p>§ 423. Although consuls conduct their correspondence +<p>§ 423. Although consuls conduct their correspondence directly with their home Government, they are nevertheless, subordinate to the diplomatic envoy of their home Government accredited to the State in which @@ -25165,15 +25124,15 @@ the local Government.</p> </h4> -<p class="indh1">Hall, § 105—Phillimore, II. § 250—Halleck, I. p. 371—Moore, V. §§ 697-700—Ullmann, -§ 58—Bulmerincq in Holtzendorff, III. pp. 702-706—Rivier, -I. § 41—Nys, II. p. 400—Calvo, III. §§ 1378-1384—Bonfils, Nos. 749-752—Pradier-Fodéré, -IV. §§ 2056-2067—Fiore, II. Nos. 1181-1182—Martens, -II. § 21—Stowell, "Le Consul," pp. 207-216.</p> +<p class="indh1">Hall, § 105—Phillimore, II. § 250—Halleck, I. p. 371—Moore, V. §§ 697-700—Ullmann, +§ 58—Bulmerincq in Holtzendorff, III. pp. 702-706—Rivier, +I. § 41—Nys, II. p. 400—Calvo, III. §§ 1378-1384—Bonfils, Nos. 749-752—Pradier-Fodéré, +IV. §§ 2056-2067—Fiore, II. Nos. 1181-1182—Martens, +II. § 21—Stowell, "Le Consul," pp. 207-216.</p> <div class="sidenote"><p>Qualification of Candidates.</p></div> -<p>§ 424. International Law has no rules in regard to +<p>§ 424. International Law has no rules in regard to the qualifications of an individual whom a State can appoint consul. Many States, however, possess such<span class="pagenum"><a name="Page_488" id="Page_488">[Pg 488]</a></span> rules in their Municipal Law as far as professional @@ -25185,7 +25144,7 @@ would at present certainly refuse it.</p> <div class="sidenote"><p>No State obliged to admit Consuls.</p></div> -<p>§ 425. According to International Law a State is +<p>§ 425. According to International Law a State is not at all obliged to admit consuls. But the commercial interests of all the States are so powerful that practically every State must admit consuls of foreign @@ -25207,7 +25166,7 @@ admit consuls in Warsaw.</p> <div class="sidenote"><p>What kind of States can appoint Consuls.</p></div> -<p>§ 426. There is no doubt that it is within the faculty +<p>§ 426. There is no doubt that it is within the faculty of every full-Sovereign State to appoint consuls. As regards not full-Sovereign States, everything depends upon the special case. As foreign States can appoint @@ -25226,11 +25185,11 @@ envoys who may be sent and received by every member-State of the German Empire.</p> <div class="footnote"><p><a name="Footnote_774_774" id="Footnote_774_774"></a><a href="#FNanchor_774_774"><span class="label">[774]</span></a> See - above, § <a href="#Th91">91</a>.</p></div> + above, § <a href="#Th91">91</a>.</p></div> <div class="sidenote"><p>Mode of Appointment and of Admittance.</p></div> -<p>§ 427. <a name="Consuls_are_appointed427" id="Consuls_are_appointed427"></a>Consuls are appointed through a patent or +<p>§ 427. <a name="Consuls_are_appointed427" id="Consuls_are_appointed427"></a>Consuls are appointed through a patent or commission, the so-called <i>Lettre de provision</i>, of the State whose consular office they are intended to administer. Vice-consuls are sometimes, and agents-consular @@ -25255,12 +25214,12 @@ for the Carlists.</p> <div class="footnote"><p><a name="Footnote_775_775" id="Footnote_775_775"></a><a href="#FNanchor_775_775"><span class="label">[775]</span></a> That, in case a consul is appointed for a State which is under the protectorate of another, it is within the competence of the -latter to grant or refuse the <i>exequatur</i>, has been pointed out above, § +latter to grant or refuse the <i>exequatur</i>, has been pointed out above, § 92, p. 144, note 4.</p></div> <div class="sidenote"><p>Appointment of Consuls includes Recognition.</p></div> -<p>§ 428. As the appointment of consuls takes place in +<p>§ 428. As the appointment of consuls takes place in the interests of commerce, industry, and navigation, and has merely local importance without political consequences, it is maintained<a name="FNanchor_776_776" id="FNanchor_776_776"></a><a href="#Footnote_776_776" class="fnanchor">[776]</a> that a State does not indirectly<span class="pagenum"><a name="Page_490" id="Page_490">[Pg 490]</a></span> @@ -25283,12 +25242,12 @@ therefrom. Such individuals are not really consuls, although the local State allows them for political reasons to exercise consular functions.</p> -<div class="footnote"><p><a name="Footnote_776_776" id="Footnote_776_776"></a><a href="#FNanchor_776_776"><span class="label">[776]</span></a> Hall, §§ 26* and 105, and Moore, I. § 72.</p></div> +<div class="footnote"><p><a name="Footnote_776_776" id="Footnote_776_776"></a><a href="#FNanchor_776_776"><span class="label">[776]</span></a> Hall, §§ 26* and 105, and Moore, I. § 72.</p></div> <div class="footnote"><p><a name="Footnote_777_777" id="Footnote_777_777"></a><a href="#FNanchor_777_777"><span class="label">[777]</span></a> See - above, § <a href="#Recognition_is_the_act72">72</a>.</p></div> + above, § <a href="#Recognition_is_the_act72">72</a>.</p></div> -<div class="footnote"><p><a name="Footnote_778_778" id="Footnote_778_778"></a><a href="#FNanchor_778_778"><span class="label">[778]</span></a> The case mentioned by Hall, § 26*, of Great Britain +<div class="footnote"><p><a name="Footnote_778_778" id="Footnote_778_778"></a><a href="#FNanchor_778_778"><span class="label">[778]</span></a> The case mentioned by Hall, § 26*, of Great Britain appointing, in 1823, consuls to the South American Republics, without gazetting the various consuls and—as must be presumed—without the individuals concerned asking formally for the <i>exequatur</i> of the various @@ -25302,15 +25261,15 @@ South American States, would seem to be a case of informal appointment.</p></div </h4> -<p class="indh1">Hall, § 105—Phillimore, II. §§ 257-260—Taylor, § 327—Halleck, I. pp. 380-385—Moore, -V. §§ 717-731—Ullmann, § 61—Bulmerincq in Holtzendorff, -III. pp. 738-749—Rivier, I. § 42—Calvo, III. §§ 1421-1429—Bonfils, Nos. -762-771—Pradier-Fodéré, IV. §§ 2069-2113—Fiore, II. Nos. 1184-1185—Martens, -II. § 23—Stowell, "Le Consul," pp. 15-136.</p> +<p class="indh1">Hall, § 105—Phillimore, II. §§ 257-260—Taylor, § 327—Halleck, I. pp. 380-385—Moore, +V. §§ 717-731—Ullmann, § 61—Bulmerincq in Holtzendorff, +III. pp. 738-749—Rivier, I. § 42—Calvo, III. §§ 1421-1429—Bonfils, Nos. +762-771—Pradier-Fodéré, IV. §§ 2069-2113—Fiore, II. Nos. 1184-1185—Martens, +II. § 23—Stowell, "Le Consul," pp. 15-136.</p> <div class="sidenote"><p>On Consular Functions in general.</p></div> -<p>§ 429. Although consuls are appointed chiefly in +<p>§ 429. Although consuls are appointed chiefly in the interest of commerce, industry, and navigation, they are nevertheless charged with various functions for other purposes. Custom, commercial and consular @@ -25322,7 +25281,7 @@ navigation, protection, notarial functions.</p> <div class="sidenote"><p>Fosterage of Commerce and Industry.</p></div> -<p>§ 430. As consuls are appointed in the interest of +<p>§ 430. As consuls are appointed in the interest of commerce and industry, they must be allowed by the receiving State to watch over the execution of the commercial treaties of their home State, to send reports @@ -25342,7 +25301,7 @@ home States.</p> <div class="sidenote"><p>Supervision of Navigation.</p></div> -<p>§ 431. Another task of consuls consists in supervision +<p>§ 431. Another task of consuls consists in supervision of the navigation of the appointing State. A consul at a port must be allowed to keep his eye on all merchantmen sailing under the flag of his home State @@ -25365,7 +25324,7 @@ no power of supervision over such public vessels.</p> <div class="sidenote"><p>Protection.</p></div> -<p>§ 432. The protection which consuls must be +<p>§ 432. The protection which consuls must be allowed by the receiving State to provide for subjects of the appointing State is a very important task. For that purpose consuls keep a register, in which these @@ -25387,7 +25346,7 @@ district.</p> <div class="sidenote"><p>Notarial Functions.</p></div> -<p>§ 433. Very important are the notarial and the +<p>§ 433. Very important are the notarial and the like functions with which consuls are charged. They attest and legalise signatures, examine witnesses and administer oaths for the purpose of procuring evidence @@ -25414,16 +25373,16 @@ States in the absence of treaty stipulations.</p> </h4> -<p class="indh1">Hall, § 105—Phillimore, II. §§ 261-271—Halleck, I. pp. 371-379—Taylor, §§ -326, 332-333—Moore, V. §§ 702-716—Ullmann, §§ 60 and 62—Bulmerincq -in Holtzendorff, III. pp. 710-720—Rivier, I. § 42—Calvo, III. §§ 1385-1420—Bonfils, -Nos. 753-761—Pradier-Fodéré, IV. §§ 2114-2121—Fiore, -II. No. 1183—Martens, II. § 22—Bodin, "Les immunités consulaires" +<p class="indh1">Hall, § 105—Phillimore, II. §§ 261-271—Halleck, I. pp. 371-379—Taylor, §§ +326, 332-333—Moore, V. §§ 702-716—Ullmann, §§ 60 and 62—Bulmerincq +in Holtzendorff, III. pp. 710-720—Rivier, I. § 42—Calvo, III. §§ 1385-1420—Bonfils, +Nos. 753-761—Pradier-Fodéré, IV. §§ 2114-2121—Fiore, +II. No. 1183—Martens, II. § 22—Bodin, "Les immunités consulaires" (1899)—Stowell, "Le Consul," pp. 137-185.</p> <div class="sidenote"><p>Position.</p></div> -<p>§ 434. Like diplomatic envoys, consuls are simply +<p>§ 434. Like diplomatic envoys, consuls are simply objects of International Law. Such rights as they have are granted to them by Municipal Laws in compliance with rights of the appointing States according to @@ -25463,7 +25422,7 @@ can do so only through the diplomatic envoy, to whom they are subordinate.</p> <div class="footnote"><p><a name="Footnote_779_779" id="Footnote_779_779"></a><a href="#FNanchor_779_779"><span class="label">[779]</span></a> See - above, § <a href="#Diplomatic_envoys384">384</a>.</p></div> + above, § <a href="#Diplomatic_envoys384">384</a>.</p></div> <div class="footnote"><p><a name="Footnote_780_780" id="Footnote_780_780"></a><a href="#FNanchor_780_780"><span class="label">[780]</span></a> According to British and American practice a consul of a neutral Power accredited to the enemy State who embarks upon mercantile @@ -25474,7 +25433,7 @@ Indian Chief, 3 C. Rob. 12.</p></div> <div class="sidenote"><p>Consular Privileges.</p></div> -<p>§ 435. From the undoubted official position of consuls +<p>§ 435. From the undoubted official position of consuls no universally recognised privileges of importance emanate as yet. Apart from the special protection due to consuls according to International Law, there is @@ -25492,7 +25451,7 @@ in the innumerable treaties between the several States in regard to consular privileges:</p> <div class="footnote"><p><a name="Footnote_781_781" id="Footnote_781_781"></a><a href="#FNanchor_781_781"><span class="label">[781]</span></a> The Institute of International Law at its meeting at Venice -in 1896 adopted a <i>Règlement sur les immunités consulaires</i> comprising +in 1896 adopted a <i>Règlement sur les immunités consulaires</i> comprising twenty-one articles. See Annuaire, XV. p. 304.</p></div> <p>(1) A distinction is very often made between professional @@ -25538,27 +25497,27 @@ consular building and to hoist the national flag.<span class="pagenum"><a name=" <span class="smaller">TERMINATION OF CONSULAR OFFICE</span> </h4> -<p class="indh1">Hall, § 105—Moore, V. § 701—Ullmann, § 59—Bulmerincq in Holtzendorff, -III. p. 708—Rivier, I. § 41—Calvo, III. §§ 1382, 1383, 1450—Bonfils, No. -775—Fiore, II. No. 1187—Martens, II. § 21—Stowell "Le Consul," pp. +<p class="indh1">Hall, § 105—Moore, V. § 701—Ullmann, § 59—Bulmerincq in Holtzendorff, +III. p. 708—Rivier, I. § 41—Calvo, III. §§ 1382, 1383, 1450—Bonfils, No. +775—Fiore, II. No. 1187—Martens, II. § 21—Stowell "Le Consul," pp. 217-222.</p> <div class="sidenote"><p>Undoubted Causes of Termination.</p></div> -<p>§ 436. <a name="De436" id="De436"></a>Death of the consul, withdrawal of the <i>exequatur</i>, +<p>§ 436. <a name="De436" id="De436"></a>Death of the consul, withdrawal of the <i>exequatur</i>, recall or dismissal, and, lastly, war between the appointing and the admitting State, are universally recognised causes of termination of the consular office. When a consul dies or war breaks out, the consular archives must not be touched by the local authorities. -They remain either under the care of an <i>employé</i> of the +They remain either under the care of an <i>employé</i> of the consulate, or a consul of another State takes charge of them until the successor of the deceased arrives or peace is concluded.</p> <div class="sidenote"><p>Doubtful Causes of Termination.</p></div> -<p>§ 437. It is not certain in practice whether the office +<p>§ 437. It is not certain in practice whether the office of a consul terminates when his district, through cession, conquest followed by annexation, or revolt, becomes the property of another State. The question ought to @@ -25577,7 +25536,7 @@ legally correct.</p> <div class="sidenote"><p>Change in the Headship of States not Cause of Termination.</p></div> -<p>§ 438. <a name="It_is_universally438" id="It_is_universally438"></a>It is universally recognised that, in contradistinction +<p>§ 438. <a name="It_is_universally438" id="It_is_universally438"></a>It is universally recognised that, in contradistinction to a diplomatic mission, the consular office does not come to an end through a change in the headship of the appointing or the admitting State. Neither<span class="pagenum"><a name="Page_497" id="Page_497">[Pg 497]</a></span> @@ -25594,30 +25553,30 @@ turns into a republic, or in any like case.</p> <p class="indh1">Tarring, "British Consular Jurisdiction in the East" (1887)—Hall, -"Foreign Powers and Jurisdiction," §§ 64-85—Halleck, I. pp. 385-398—Phillimore, -II. §§ 272-277—Taylor, §§ 331-333—Twiss, I. § 136—Wheaton, -§ 110—Ullmann, §§ 63-65—Bulmerincq in Holtzendorff, III. pp. 720-738—Rivier, -I. § 43—Nys, II. pp. 400-414—Calvo, III. §§ 1431-1449—Bonfils, -Nos. 776-791—Pradier-Fodéré, IV. 2122-2138—Mérignhac, II. -pp. 338-351—Martens, II. §§ 24-26—Martens, "Konsularwesen und +"Foreign Powers and Jurisdiction," §§ 64-85—Halleck, I. pp. 385-398—Phillimore, +II. §§ 272-277—Taylor, §§ 331-333—Twiss, I. § 136—Wheaton, +§ 110—Ullmann, §§ 63-65—Bulmerincq in Holtzendorff, III. pp. 720-738—Rivier, +I. § 43—Nys, II. pp. 400-414—Calvo, III. §§ 1431-1449—Bonfils, +Nos. 776-791—Pradier-Fodéré, IV. 2122-2138—Mérignhac, II. +pp. 338-351—Martens, II. §§ 24-26—Martens, "Konsularwesen und Konsularjurisdiction im Orient" (German translation from the Russian -original by Skerst, 1874)—Bruillat, "Étude historique et critique sur +original by Skerst, 1874)—Bruillat, "Étude historique et critique sur les juridictions consulaires" (1898)—Lippmann, "Die Konsularjurisdiction -im Orient" (1898)—Vergé, "Des consuls dans les pays +im Orient" (1898)—Vergé, "Des consuls dans les pays d'occident" (1903)—Hinckley, "American Consular Jurisdiction in the Orient" (1906)—Piggott, "Exterritoriality. The Law relating to Consular Jurisdiction, &c. in Oriental Countries" (new edition, 1907)—Mandelstam, "La justice ottomane dans ses rapports avec les -puissances étrangères" (1911), and in R.G. XIV. (1907), pp. 5 and 534, +puissances étrangères" (1911), and in R.G. XIV. (1907), pp. 5 and 534, and XV. (1908), pp. 329-384.</p> <div class="sidenote"><p>Position of Consuls in non-Christian States.</p></div> -<p>§ 439. Fundamentally different from the regular +<p>§ 439. Fundamentally different from the regular position is that of consuls in non-Christian States, with the single exception of Japan. In the Christian countries of the West alone consuls have, as has been stated -before (§ 418), lost jurisdiction over the subjects of the +before (§ 418), lost jurisdiction over the subjects of the appointing States. In the Mohammedan States consuls not only retained their original jurisdiction, but the latter became by-and-by so extended through the so-called @@ -25638,7 +25597,7 @@ consuls in Christian States.</p> <div class="sidenote"><p>Consular Jurisdiction in non-Christian States.</p></div> -<p>§ 440. <a name="International_custom_and440" id="International_custom_and440"></a>International custom and treaties lay down +<p>§ 440. <a name="International_custom_and440" id="International_custom_and440"></a>International custom and treaties lay down the rule only that all the subjects of Christian States residing in non-Christian States shall remain under the jurisdiction of the home State as exercised by their @@ -25658,14 +25617,14 @@ another Christian State, and which are therefore called mixed cases.</p> <div class="footnote"><p><a name="Footnote_782_782" id="Footnote_782_782"></a><a href="#FNanchor_782_782"><span class="label">[782]</span></a> See - above, § <a href="#The_rule_that_aliens318">318</a>.</p></div> + above, § <a href="#The_rule_that_aliens318">318</a>.</p></div> <div class="footnote"><p><a name="Footnote_783_783" id="Footnote_783_783"></a><a href="#FNanchor_783_783"><span class="label">[783]</span></a> See Piggott, <i>op. cit.</i></p></div> <div class="sidenote"><p>International Courts in Egypt.</p></div> -<p>§ 441. To overcome in some points the disadvantages +<p>§ 441. To overcome in some points the disadvantages of the consular jurisdiction, an interesting experiment is being made in Egypt. On the initiative of the Khedive, most of the Powers in 1875 agreed upon an @@ -25689,7 +25648,7 @@ Review</i>, XXIII. (1907), pp. 409-413.</p></div> <div class="sidenote"><p>Exceptional Character of Consuls in non-Christian States.</p></div> -<p>§ 442. There is no doubt that the present position +<p>§ 442. There is no doubt that the present position of consuls in non-Christian States is in every point an exceptional one, which does not agree with the principles of International Law otherwise universally recognised. @@ -25715,14 +25674,14 @@ have reached a certain level of civilisation.<span class="pagenum"><a name="Page <span class="smaller">ARMED FORCES ON FOREIGN TERRITORY</span> </h4> -<p class="indh1">Hall, §§ 54, 56, 102—Lawrence, § 107—Halleck, I. pp. 477-479—Phillimore, -I. § 341—Taylor, § 131—Twiss, I. § 165—Wheaton, § 99—Moore, II. -§ 251—Westlake, I. p. 255—Stoerk in Holtzendorff, II. pp. 664-666—Rivier, -I. pp. 333-335—Calvo, III. § 1560—Fiore, I. Nos. 528-529.</p> +<p class="indh1">Hall, §§ 54, 56, 102—Lawrence, § 107—Halleck, I. pp. 477-479—Phillimore, +I. § 341—Taylor, § 131—Twiss, I. § 165—Wheaton, § 99—Moore, II. +§ 251—Westlake, I. p. 255—Stoerk in Holtzendorff, II. pp. 664-666—Rivier, +I. pp. 333-335—Calvo, III. § 1560—Fiore, I. Nos. 528-529.</p> <div class="sidenote"><p>Armed Forces State Organs.</p></div> -<p>§ 443. Armed forces are organs of the State which +<p>§ 443. Armed forces are organs of the State which maintains them, because such forces are created for the purpose of maintaining the independence, authority, and safety of the State. And in this respect it matters @@ -25738,7 +25697,7 @@ no longer an organ of its State.</p> <div class="sidenote"><p>Occasions for Armed Forces abroad.</p></div> -<p>§ 444. Besides war, there are several occasions for +<p>§ 444. Besides war, there are several occasions for armed forces to be on foreign territory in the service of their home State. Thus, a State may have a right to keep troops in a foreign fortress or to send troops @@ -25756,12 +25715,12 @@ commit acts of violence there, such as the British did in the case of the <i>Caroline</i>.<a name="FNanchor_785_785" id="FNanchor_785_785"></a><a href="#Footnote_785_785" class="fnanchor">[785]</a></p> <div class="footnote"><p><a name="Footnote_785_785" id="Footnote_785_785"></a><a href="#FNanchor_785_785"><span class="label">[785]</span></a> See - above, § <a href="#In_1837_during_the_Canadian133">133</a>, and - below, § <a href="#An_excellent_example446">446</a>.</p></div> + above, § <a href="#In_1837_during_the_Canadian133">133</a>, and + below, § <a href="#An_excellent_example446">446</a>.</p></div> <div class="sidenote"><p>Position of Armed Forces abroad.</p></div> -<p>§ 445. <a name="Wh445" id="Wh445"></a>Whenever armed forces are on foreign territory +<p>§ 445. <a name="Wh445" id="Wh445"></a>Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial and remain, therefore, under the jurisdiction of the latter. A crime committed on foreign @@ -25784,7 +25743,7 @@ Strafrecht" (1892), p. 351), and Rivier (I. p. 333).</p></div> <div class="sidenote"><p>Case of McLeod.</p></div> -<p>§ 446. <a name="An_excellent_example446" id="An_excellent_example446"></a>An excellent example of the position of armed +<p>§ 446. <a name="An_excellent_example446" id="An_excellent_example446"></a>An excellent example of the position of armed forces abroad is furnished by the case of McLeod,<a name="FNanchor_787_787" id="FNanchor_787_787"></a><a href="#Footnote_787_787" class="fnanchor">[787]</a> which occurred in 1841. Alexander McLeod, who was a member of the British force sent by the Canadian @@ -25814,11 +25773,11 @@ not ... to be holden personally responsible in the ordinary tribunals for their participation in it."</p> <div class="footnote"><p><a name="Footnote_787_787" id="Footnote_787_787"></a><a href="#FNanchor_787_787"><span class="label">[787]</span></a> See - Wharton, I. § 21, and Moore, II. § 179.</p></div> + Wharton, I. § 21, and Moore, II. § 179.</p></div> <div class="sidenote"><p>The Casa Blanca Incident.</p></div> -<p>§ 446<i>a</i>. <a name="Another_interesting446a" id="Another_interesting446a"></a>Another interesting example is the Casa +<p>§ 446<i>a</i>. <a name="Another_interesting446a" id="Another_interesting446a"></a>Another interesting example is the Casa Blanca incident. On September 25, 1908, six soldiers—three of them Germans—belonging to the French Foreign Legion which formed part of the French troops @@ -25901,17 +25860,17 @@ arbitral decision. See A.J. III. (1909), pp. 698-701.</p></div> <span>MEN-OF-WAR IN FOREIGN WATERS</span> </h4> -<p class="indh1">Hall, §§ 54-55—Halleck, I. pp. 215-230—Lawrence, §§ 107-109—Phillimore, -II. §§ 344-350—Westlake, pp. 256-259—Taylor, § 261—Moore, II. §§ -252-256—Twiss, I. § 165—Wheaton, § 100—Bluntschli, § 321—Stoerk in -Holtzendorff, II. pp. 434 and 446—Perels, §§ 11, 14, 15—Heilborn, -"System," pp. 248-279—Rivier, I. pp. 333-335—Bonfils, Nos. 614-623—Mérignhac, -II. pp. 554-564—Calvo, III. §§ 1550-1559—Fiore, I. Nos. +<p class="indh1">Hall, §§ 54-55—Halleck, I. pp. 215-230—Lawrence, §§ 107-109—Phillimore, +II. §§ 344-350—Westlake, pp. 256-259—Taylor, § 261—Moore, II. §§ +252-256—Twiss, I. § 165—Wheaton, § 100—Bluntschli, § 321—Stoerk in +Holtzendorff, II. pp. 434 and 446—Perels, §§ 11, 14, 15—Heilborn, +"System," pp. 248-279—Rivier, I. pp. 333-335—Bonfils, Nos. 614-623—Mérignhac, +II. pp. 554-564—Calvo, III. §§ 1550-1559—Fiore, I. Nos. 547-550—Testa, p. 86—Jordan, R.I. 2nd Ser. X. (1908), p. 343.</p> <div class="sidenote"><p>Men-of-war State Organs.</p></div> -<p>§ 447. <a name="Men-of-war_are_State_organs447" id="Men-of-war_are_State_organs447"></a>Men-of-war are State organs just as armed +<p>§ 447. <a name="Men-of-war_are_State_organs447" id="Men-of-war_are_State_organs447"></a>Men-of-war are State organs just as armed forces are, a man-of-war being in fact a part of the armed forces of a State. And respecting their character as State organs, it matters nought whether men-of-war @@ -25934,7 +25893,7 @@ treated as though they were men-of-war.</p> <div class="sidenote"><p>Proof of Character as Men-of-war.</p></div> -<p>§ 448. The character of a man-of-war or of any +<p>§ 448. The character of a man-of-war or of any other vessel treated as a man-of-war is, in the first instance, proved by their outward appearance, such vessels flying the war flag and the pennant of their @@ -25974,7 +25933,7 @@ as men-of-war.</p></div> <div class="sidenote"><p>Occasions for Men-of-war abroad.</p></div> -<p>§ 449. <a name="Whereas_armed_forces449" id="Whereas_armed_forces449"></a>Whereas armed forces in time of peace have<span class="pagenum"><a name="Page_506" id="Page_506">[Pg 506]</a></span> +<p>§ 449. <a name="Whereas_armed_forces449" id="Whereas_armed_forces449"></a>Whereas armed forces in time of peace have<span class="pagenum"><a name="Page_506" id="Page_506">[Pg 506]</a></span> no occasion to be abroad, cases of a special right from a convention and cases of necessity excepted, men-of-war of all maritime States possessing a navy are constantly @@ -26005,12 +25964,12 @@ these conditions do not deny to men-of-war their universally recognised privileges.</p> <div class="footnote"><p><a name="Footnote_792_792" id="Footnote_792_792"></a><a href="#FNanchor_792_792"><span class="label">[792]</span></a> The matter is controversial. See - above, § <a href="#Although_the_maritime188">188</a>, and -Westlake, I. p. 192, in contradistinction to Hall, § 42.</p></div> + above, § <a href="#Although_the_maritime188">188</a>, and +Westlake, I. p. 192, in contradistinction to Hall, § 42.</p></div> <div class="sidenote"><p>Position of Men-of-war in foreign waters.</p></div> -<p>§ 450. <a name="Th450" id="Th450"></a>The position of men-of-war in foreign waters +<p>§ 450. <a name="Th450" id="Th450"></a>The position of men-of-war in foreign waters is characterised by the fact that they are called "floating" portions of the flag-State. For at the present time a customary rule of International Law is universally @@ -26038,8 +25997,8 @@ means of diplomacy from the home State.</p> <div class="footnote"><p><a name="Footnote_793_793" id="Footnote_793_793"></a><a href="#FNanchor_793_793"><span class="label">[793]</span></a> This rule became universally recognised during the nineteenth century only. On the change of doctrines formerly held in -this country and the United States of America, see Hall, § 54, and -Lawrence, § 107. English and American Courts now recognise the +this country and the United States of America, see Hall, § 54, and +Lawrence, § 107. English and American Courts now recognise the exterritoriality of foreign public vessels. Thus, in the case of the <i>Exchange</i> (7 Cranch, 116), the Supreme Court of the United States recognised the fact that the latter had no jurisdiction over this French @@ -26069,15 +26028,15 @@ littoral State. Only such measures are allowed against her as are necessary to prevent her from further acts of violence.<a name="FNanchor_794_794" id="FNanchor_794_794"></a><a href="#Footnote_794_794" class="fnanchor">[794]</a></p> -<div class="footnote"><p><a name="Footnote_794_794" id="Footnote_794_794"></a><a href="#FNanchor_794_794"><span class="label">[794]</span></a> Attention ought to be drawn to the "<i>Règlement sur le -régime légal des navires et de leurs équipages dans les ports -étrangers</i>," adopted by the Institute of International Law, in 1898, at +<div class="footnote"><p><a name="Footnote_794_794" id="Footnote_794_794"></a><a href="#FNanchor_794_794"><span class="label">[794]</span></a> Attention ought to be drawn to the "<i>Règlement sur le +régime légal des navires et de leurs équipages dans les ports +étrangers</i>," adopted by the Institute of International Law, in 1898, at its meeting at the Hague of which articles 8-24 deal with men-of-war in foreign waters; see Annuaire, XVII. (1898), pp. 275-280.</p></div> <div class="sidenote"><p>Position of Crew when on Land abroad.</p></div> -<p>§ 451. Of some importance is the unsettled question +<p>§ 451. Of some importance is the unsettled question respecting the position of the commander and the crew of a man-of-war in foreign ports when they are on land.</p> @@ -26097,7 +26056,7 @@ territorial supremacy of the littoral State like any other foreigners, and they may be punished for crimes committed ashore.</p> -<div class="footnote"><p><a name="Footnote_795_795" id="Footnote_795_795"></a><a href="#FNanchor_795_795"><span class="label">[795]</span></a> So also Moore, II. § 256.</p></div> +<div class="footnote"><p><a name="Footnote_795_795" id="Footnote_795_795"></a><a href="#FNanchor_795_795"><span class="label">[795]</span></a> So also Moore, II. § 256.</p></div> <p>There are, however, a number of publicists<a name="FNanchor_796_796" id="FNanchor_796_796"></a><a href="#Footnote_796_796" class="fnanchor">[796]</a> who do not make this distinction, and who maintain that commanders @@ -26105,9 +26064,9 @@ or members of the crew whilst ashore are in every case under the local jurisdiction.</p> <div class="footnote"><p><a name="Footnote_796_796" id="Footnote_796_796"></a><a href="#FNanchor_796_796"><span class="label">[796]</span></a> See, - for instance, Hall, § 55; Phillimore, I. § 346; Testa, -p. 109. See also art. 18 of the "<i>Règlement sur les régime légal des -navires et de leurs équipages dans les ports étrangers</i>," adopted by the + for instance, Hall, § 55; Phillimore, I. § 346; Testa, +p. 109. See also art. 18 of the "<i>Règlement sur les régime légal des +navires et de leurs équipages dans les ports étrangers</i>," adopted by the Institute of International Law, in 1898, at its meeting at the Hague (Annuaire, XVII. (1898), p. 278).<span class="pagenum"><a name="Page_509" id="Page_509">[Pg 509]</a></span></p></div> @@ -26118,14 +26077,14 @@ Institute of International Law, in 1898, at its meeting at the Hague </h4> -<p class="indh1">Hall, §§ 103-104*—Moore, IV. § 623—Bluntschli, §§ 241-243—Ullmann, §§ -66-67—Heffter, § 222—Rivier, I. § 44—Calvo, III. §§ 1337-1339—Fiore, -II. Nos. 1188-1191—Martens, II. § 5—Adler, "Die Spionage" (1906), pp. +<p class="indh1">Hall, §§ 103-104*—Moore, IV. § 623—Bluntschli, §§ 241-243—Ullmann, §§ +66-67—Heffter, § 222—Rivier, I. § 44—Calvo, III. §§ 1337-1339—Fiore, +II. Nos. 1188-1191—Martens, II. § 5—Adler, "Die Spionage" (1906), pp. 63-92.</p> <div class="sidenote"><p>Agents lacking diplomatic or consular character.</p></div> -<p>§ 452. Besides diplomatic envoys and consuls, States +<p>§ 452. Besides diplomatic envoys and consuls, States may and do send various kinds of agents abroad—namely, public political agents, secret political agents, spies, commissaries, bearers of despatches. Their position @@ -26135,7 +26094,7 @@ treated.</p> <div class="sidenote"><p>Public Political Agents.</p></div> -<p>§ 453. Public political agents are agents sent by one +<p>§ 453. Public political agents are agents sent by one Power to another for political negotiations of different kinds. They may be sent for a permanency or for a limited time only. As they are not invested with diplomatic @@ -26160,17 +26119,17 @@ granted to such agents seem to have grown up in practice. Inviolability of their persons and official papers ought to be granted to them.<a name="FNanchor_798_798" id="FNanchor_798_798"></a><a href="#Footnote_798_798" class="fnanchor">[798]</a></p> -<div class="footnote"><p><a name="Footnote_797_797" id="Footnote_797_797"></a><a href="#FNanchor_797_797"><span class="label">[797]</span></a> Heffter, § 222, is, as far as I know, the only publicist +<div class="footnote"><p><a name="Footnote_797_797" id="Footnote_797_797"></a><a href="#FNanchor_797_797"><span class="label">[797]</span></a> Heffter, § 222, is, as far as I know, the only publicist who maintains that agents not invested with diplomatic character must nevertheless be granted the privileges of diplomatic envoys.</p></div> -<div class="footnote"><p><a name="Footnote_798_798" id="Footnote_798_798"></a><a href="#FNanchor_798_798"><span class="label">[798]</span></a> Ullmann, § 66, and Rivier, I. § 40, maintain that they +<div class="footnote"><p><a name="Footnote_798_798" id="Footnote_798_798"></a><a href="#FNanchor_798_798"><span class="label">[798]</span></a> Ullmann, § 66, and Rivier, I. § 40, maintain that they <i>must</i> be granted the privilege of inviolability to the same extent as diplomatic envoys.</p></div> <div class="sidenote"><p>Secret Political Agents.</p></div> -<p>§ 454. Secret political agents may be sent for the +<p>§ 454. Secret political agents may be sent for the same purposes as public political agents. But two kinds of secret political agents must be distinguished. An agent may be secretly sent to another Power with @@ -26200,7 +26159,7 @@ authorities will not interfere.</p> <div class="sidenote"><p>Spies.</p></div> -<p>§ 455. Spies are secret agents of a State sent abroad<a name="FNanchor_799_799" id="FNanchor_799_799"></a><a href="#Footnote_799_799" class="fnanchor">[799]</a> +<p>§ 455. Spies are secret agents of a State sent abroad<a name="FNanchor_799_799" id="FNanchor_799_799"></a><a href="#Footnote_799_799" class="fnanchor">[799]</a> for the purpose of obtaining clandestinely information<span class="pagenum"><a name="Page_511" id="Page_511">[Pg 511]</a></span> in regard to military or political secrets. Although all States constantly or occasionally send spies abroad, and @@ -26218,12 +26177,12 @@ hand, will never interfere, since it cannot officially confess to having commissioned a spy.</p> <div class="footnote"><p><a name="Footnote_799_799" id="Footnote_799_799"></a><a href="#FNanchor_799_799"><span class="label">[799]</span></a> Concerning spies in time of war, see - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#War_cannot_be159">vol. II. §§ 159</a> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#War_cannot_be159">vol. II. §§ 159</a> and <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Es">210</a>, and Adler, "Die Spionage" (1906), pp. 7-62.</p></div> <div class="sidenote"><p>Commissaries.</p></div> -<p>§ 456. Commissaries are agents sent with a letter +<p>§ 456. Commissaries are agents sent with a letter of recommendation or commission by one State to another for negotiations, not of a political but of a technical or administrative character only. Such commissaries @@ -26235,23 +26194,23 @@ certain privileges to such commissaries has not grown up, but inviolability of their persons and official papers ought to be granted to them, as they are officially sent and received for official purposes. Thus Germany, -in 1887, in the case of the French officer of police Schnaebélé, +in 1887, in the case of the French officer of police Schnaebélé, who was invited by local German functionaries to cross the German frontier for official purposes and then arrested, recognised the rule that a safe-conduct is tacitly granted to foreign officials when they enter officially the territory of a State with the consent of -the local authorities, although Schnaebélé was not a +the local authorities, although Schnaebélé was not a commissary sent by his Government to the German Government.</p> <div class="sidenote"><p>Bearers of Despatches.</p></div> -<p>§ 457. <a name="In457" id="In457"></a>Individuals commissioned to carry official<span class="pagenum"><a name="Page_512" id="Page_512">[Pg 512]</a></span> +<p>§ 457. <a name="In457" id="In457"></a>Individuals commissioned to carry official<span class="pagenum"><a name="Page_512" id="Page_512">[Pg 512]</a></span> despatches from a State to its head or to diplomatic envoys abroad are agents of such State. Despatch-bearers who belong to the retinue of diplomatic envoys -as their couriers must enjoy, as stated above (§ 405), +as their couriers must enjoy, as stated above (§ 405), exemption from civil and criminal jurisdiction and a special protection in the State to which the envoy is accredited, and a right of innocent passage through @@ -26273,12 +26232,12 @@ is temporarily abroad and his Government at home.</p> </h4> -<p class="indh1">Rivier, I. pp. 564-566—Ullmann, § 68—Gareis, §§ 51-52—Liszt, § 16—Moore, -IV. § 623.</p> +<p class="indh1">Rivier, I. pp. 564-566—Ullmann, § 68—Gareis, §§ 51-52—Liszt, § 16—Moore, +IV. § 623.</p> <div class="sidenote"><p>Permanent in Contradistinction to Temporary Commissions.</p></div> -<p>§ 458. A distinction must be made between temporary +<p>§ 458. A distinction must be made between temporary and permanent international commissions. The former consist of commissaries delegated by two or more States to arrange all kinds of non-political matters, @@ -26294,7 +26253,7 @@ interest of the foreign creditors of several States unable to pay the interest on their stocks; and, lastly, concerning bounties on sugar.</p> -<div class="footnote"><p><a name="Footnote_800_800" id="Footnote_800_800"></a><a href="#FNanchor_800_800"><span class="label">[800]</span></a> The position of their members has been discussed above, § +<div class="footnote"><p><a name="Footnote_800_800" id="Footnote_800_800"></a><a href="#FNanchor_800_800"><span class="label">[800]</span></a> The position of their members has been discussed above, § 456. Quite novel institutions are the International Commissions of Inquiry recommended by the Hague Peace Conferences of 1890 and 1907. Articles 9 to 36 of the Hague Convention for the peaceful adjustment of @@ -26304,7 +26263,7 @@ difference of opinion on matters of fact, the parties should institute an International Commission of Inquiry; this commission to present a report to the parties, which shall be limited to a statement of the facts. See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th5">vol. II. § 5</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th5">vol. II. § 5</a>.</p></div> <div class="footnote"><p><a name="Footnote_801_801" id="Footnote_801_801"></a><a href="#FNanchor_801_801"><span class="label">[801]</span></a> Only such permanent commissions are mentioned in the text as have been instituted by the Powers in conference. There are, however, @@ -26336,11 +26295,11 @@ claimed these privileges, Great Britain refused to concede them.</p> <div class="footnote"><p><a name="Footnote_802_802" id="Footnote_802_802"></a><a href="#FNanchor_802_802"><span class="label">[802]</span></a> See - Moore, IV. § 623, p. 428.</p></div> + Moore, IV. § 623, p. 428.</p></div> <div class="sidenote"><p>Commissions in the interest of Navigation.</p></div> -<p>§ 459. Four international commissions have been +<p>§ 459. Four international commissions have been instituted in the interest of navigation—namely, two for the river Danube, one for the Congo river, and one for the Suez Canal.</p> @@ -26359,7 +26318,7 @@ competence of the European Danube Commission comprehends the Danube from Ibraila downwards to its mouth.<a name="FNanchor_803_803" id="FNanchor_803_803"></a><a href="#Footnote_803_803" class="fnanchor">[803]</a></p> -<div class="footnote"><p><a name="Footnote_803_803" id="Footnote_803_803"></a><a href="#FNanchor_803_803"><span class="label">[803]</span></a> Details in Twiss, I. §§ 150-152.</p></div> +<div class="footnote"><p><a name="Footnote_803_803" id="Footnote_803_803"></a><a href="#FNanchor_803_803"><span class="label">[803]</span></a> Details in Twiss, I. §§ 150-152.</p></div> <p>2. The above-mentioned London Conference of 1883 has sanctioned regulations<a name="FNanchor_804_804" id="FNanchor_804_804"></a><a href="#Footnote_804_804" class="fnanchor">[804]</a> in regard to the navigation @@ -26373,7 +26332,7 @@ Commission—one member from each.<a name="FNanchor_805_805" id="FNanchor_80 <div class="footnote"><p><a name="Footnote_804_804" id="Footnote_804_804"></a><a href="#FNanchor_804_804"><span class="label">[804]</span></a> Martens, N.R.G. 2nd Ser. IX. p. 394.</p></div> -<div class="footnote"><p><a name="Footnote_805_805" id="Footnote_805_805"></a><a href="#FNanchor_805_805"><span class="label">[805]</span></a> Details in Twiss, § 152.</p></div> +<div class="footnote"><p><a name="Footnote_805_805" id="Footnote_805_805"></a><a href="#FNanchor_805_805"><span class="label">[805]</span></a> Details in Twiss, § 152.</p></div> <p>3. The Powers represented at the Berlin Congo Conference of 1884 have sanctioned certain regulations @@ -26386,7 +26345,7 @@ represented by one member, is totally independent of the territorial Governments, and its members, offices, and archives enjoy the privilege of inviolability.<a name="FNanchor_806_806" id="FNanchor_806_806"></a><a href="#Footnote_806_806" class="fnanchor">[806]</a></p> -<div class="footnote"><p><a name="Footnote_806_806" id="Footnote_806_806"></a><a href="#FNanchor_806_806"><span class="label">[806]</span></a> Details in Calvo, I. § 334. According to Liszt, § 16, II. +<div class="footnote"><p><a name="Footnote_806_806" id="Footnote_806_806"></a><a href="#FNanchor_806_806"><span class="label">[806]</span></a> Details in Calvo, I. § 334. According to Liszt, § 16, II. 3, this Commission has never been appointed.</p></div> <p>4. By article 8 of the Treaty of Constantinople of @@ -26396,53 +26355,53 @@ execution of that treaty. The Commission consists of all the consuls of the signatory Powers in Egypt.<a name="FNanchor_807_807" id="FNanchor_807_807"></a><a href="#Footnote_807_807" class="fnanchor">[807]</a></p> <div class="footnote"><p><a name="Footnote_807_807" id="Footnote_807_807"></a><a href="#FNanchor_807_807"><span class="label">[807]</span></a> See - above, § <a href="#The_most_important183">183</a>.</p></div> + above, § <a href="#The_most_important183">183</a>.</p></div> <div class="sidenote"><p>Commissions in the interest of Sanitation.</p></div> -<p>§ 460. Three international commissions in the interest +<p>§ 460. Three international commissions in the interest of sanitation are in existence. For the purpose of supervising the sanitary arrangements in connection with the navigation on the lower part of the Danube, the International Council of Sanitation was instituted -at Bucharest in 1881.<a name="FNanchor_808_808" id="FNanchor_808_808"></a><a href="#Footnote_808_808" class="fnanchor">[808]</a> The <i>Conseil supérieur de santé</i> +at Bucharest in 1881.<a name="FNanchor_808_808" id="FNanchor_808_808"></a><a href="#Footnote_808_808" class="fnanchor">[808]</a> The <i>Conseil supérieur de santé</i> at Constantinople has the task of supervising the arrangements concerning cholera and plague. The <i>Conseil sanitaire maritime et quarantenaire</i> at Alexandria has similar -tasks and is subject to the control of the <i>Conseil supérieur -de santé</i> at Constantinople.<a name="FNanchor_809_809" id="FNanchor_809_809"></a><a href="#Footnote_809_809" class="fnanchor">[809]</a> As regards the International +tasks and is subject to the control of the <i>Conseil supérieur +de santé</i> at Constantinople.<a name="FNanchor_809_809" id="FNanchor_809_809"></a><a href="#Footnote_809_809" class="fnanchor">[809]</a> As regards the International Health Office at Paris, see - below, § <a href="#For_the_purpose_of_organising6of590">590, No. 6</a>.</p> + below, § <a href="#For_the_purpose_of_organising6of590">590, No. 6</a>.</p> <div class="footnote"><p><a name="Footnote_808_808" id="Footnote_808_808"></a><a href="#FNanchor_808_808"><span class="label">[808]</span></a> See - article 6 of the <i>Acte additionnel à l'Acte public du 2 + article 6 of the <i>Acte additionnel à l'Acte public du 2 novembre 1865 pour la navigation des embouchures du Danube</i>, signed on May 28, 1881; Martens, N.R.G. 2nd Ser. VIII. p. 207.</p></div> -<div class="footnote"><p><a name="Footnote_809_809" id="Footnote_809_809"></a><a href="#FNanchor_809_809"><span class="label">[809]</span></a> Details in Liszt, § 16, III., where likewise information is +<div class="footnote"><p><a name="Footnote_809_809" id="Footnote_809_809"></a><a href="#FNanchor_809_809"><span class="label">[809]</span></a> Details in Liszt, § 16, III., where likewise information is to be found as regards the <i>Conseil sanitaire</i> at Tangiers, which consists of all the foreign envoys in Morocco.</p></div> <div class="sidenote"><p>Commissions in the Interest of Foreign Creditors.</p></div> -<p>§ 461. Three international commissions in the interest +<p>§ 461. Three international commissions in the interest of foreign creditors are in existence—namely, in Turkey since 1878, in Egypt since 1880, and in Greece since 1897.<a name="FNanchor_810_810" id="FNanchor_810_810"></a><a href="#Footnote_810_810" class="fnanchor">[810]</a></p> <div class="footnote"><p><a name="Footnote_810_810" id="Footnote_810_810"></a><a href="#FNanchor_810_810"><span class="label">[810]</span></a> See Kaufmann, "Das internationale Recht der aegyptischen -Staatsschuld" (1891), and Murat, "Le contrôle international sur les -finances de l'Egypte, de la Grèce et de la Turquie" (1899).</p></div> +Staatsschuld" (1891), and Murat, "Le contrôle international sur les +finances de l'Egypte, de la Grèce et de la Turquie" (1899).</p></div> <div class="sidenote"><p>Permanent Commission concerning Sugar.</p></div> -<p>§ 462. <a name="According_to_article462" id="According_to_article462"></a>According to article 7 of the Brussels Convention +<p>§ 462. <a name="According_to_article462" id="According_to_article462"></a>According to article 7 of the Brussels Convention concerning bounties on sugar, a permanent commission was instituted in 1902 at Brussels.<a name="FNanchor_811_811" id="FNanchor_811_811"></a><a href="#Footnote_811_811" class="fnanchor">[811]</a></p> <div class="footnote"><p><a name="Footnote_811_811" id="Footnote_811_811"></a><a href="#FNanchor_811_811"><span class="label">[811]</span></a> See - below, § <a href="#On_March3of585">585, No. 3</a>.</p></div> + below, § <a href="#On_March3of585">585, No. 3</a>.</p></div> @@ -26452,13 +26411,13 @@ commission was instituted in 1902 at Brussels.<a name="FNanchor_811_811" id="FNa </h4> -<p class="indh1">Rivier, I. pp. 564-566—Nys, II. pp. 264-270—Ullmann, § 58—Liszt, § 17—Gareis, -§ 52—Descamps, "Les offices internationaux et leur avenir" +<p class="indh1">Rivier, I. pp. 564-566—Nys, II. pp. 264-270—Ullmann, § 58—Liszt, § 17—Gareis, +§ 52—Descamps, "Les offices internationaux et leur avenir" (1894).</p> <div class="sidenote"><p>Character of International Offices.</p></div> -<p>§ 463. During the second half of the nineteenth century +<p>§ 463. During the second half of the nineteenth century a great number of general treaties were entered into by a greater or lesser number of States for the purpose<span class="pagenum"><a name="Page_516" id="Page_516">[Pg 516]</a></span> of settling in common certain non-political matters. @@ -26474,27 +26433,27 @@ although an international office, has no relation to those here discussed.</p> <div class="footnote"><p><a name="Footnote_812_812" id="Footnote_812_812"></a><a href="#FNanchor_812_812"><span class="label">[812]</span></a> See - below, § <a href="#The_International_Bureau474">474</a>.</p></div> + below, § <a href="#The_International_Bureau474">474</a>.</p></div> <div class="sidenote"><p>International Telegraph Offices.</p></div> -<p>§ 464. <a name="In_1868_the_international464" id="In_1868_the_international464"></a>In 1868 the international telegraph office +<p>§ 464. <a name="In_1868_the_international464" id="In_1868_the_international464"></a>In 1868 the international telegraph office of the International Telegraph Union was created at Berne. It is administered by four functionaries under the supervision of the Swiss Bundesrath. It edits the -<i>Journal Télégraphique</i> in French.<a name="FNanchor_813_813" id="FNanchor_813_813"></a><a href="#Footnote_813_813" class="fnanchor">[813]</a> Connected with +<i>Journal Télégraphique</i> in French.<a name="FNanchor_813_813" id="FNanchor_813_813"></a><a href="#Footnote_813_813" class="fnanchor">[813]</a> Connected with this office is, since 1906, the International Office for Radiotelegraphy.<a name="FNanchor_814_814" id="FNanchor_814_814"></a><a href="#Footnote_814_814" class="fnanchor">[814]</a></p> <div class="footnote"><p><a name="Footnote_813_813" id="Footnote_813_813"></a><a href="#FNanchor_813_813"><span class="label">[813]</span></a> See - below, § <a href="#A_general_telegraphic2of582">582, No. 2</a>.</p></div> + below, § <a href="#A_general_telegraphic2of582">582, No. 2</a>.</p></div> <div class="footnote"><p><a name="Footnote_814_814" id="Footnote_814_814"></a><a href="#FNanchor_814_814"><span class="label">[814]</span></a> See - below, § <a href="#A_general_radio4of582">582, No. 4</a>.</p></div> + below, § <a href="#A_general_radio4of582">582, No. 4</a>.</p></div> <div class="sidenote"><p>International Post Office.</p></div> -<p>§ 465. The pendant of the international telegraph +<p>§ 465. The pendant of the international telegraph office is the international post office of the Universal Postal Union created at Berne in 1874. It is administered by seven functionaries under the supervision @@ -26502,11 +26461,11 @@ of the Swiss Bundesrath, and edits a monthly, <i>L'Union Postale</i>, in French, German, and English.<a name="FNanchor_815_815" id="FNanchor_815_815"></a><a href="#Footnote_815_815" class="fnanchor">[815]</a></p> <div class="footnote"><p><a name="Footnote_815_815" id="Footnote_815_815"></a><a href="#FNanchor_815_815"><span class="label">[815]</span></a> See - below, § <a href="#Whereas_previously582">582</a>, No. 1.</p></div> + below, § <a href="#Whereas_previously582">582</a>, No. 1.</p></div> <div class="sidenote"><p>International Office of Weights and Measures.</p></div> -<p>§ 466. <a name="The_States_which_have466" id="The_States_which_have466"></a>The States which have introduced the metric +<p>§ 466. <a name="The_States_which_have466" id="The_States_which_have466"></a>The States which have introduced the metric system of weights and measures created in 1875 the international office of weights and measures in Paris. Of functionaries there are a director and several assistants. @@ -26515,12 +26474,12 @@ prototypes of the metre and kilogramme and the comparison of the national prototypes with the international.<a name="FNanchor_816_816" id="FNanchor_816_816"></a><a href="#Footnote_816_816" class="fnanchor">[816]</a></p> <div class="footnote"><p><a name="Footnote_816_816" id="Footnote_816_816"></a><a href="#FNanchor_816_816"><span class="label">[816]</span></a> See - below, § <a href="#In_the_interest_of1of588">588, No. 1</a>.</p></div> + below, § <a href="#In_the_interest_of1of588">588, No. 1</a>.</p></div> <div class="sidenote"><p>International Office for the Protection of Works of Literature and Art and of Industrial Property.</p></div> -<p>§ 467. <a name="In_1883_an_International_Union467" id="In_1883_an_International_Union467"></a>In 1883 an International Union for the Protection +<p>§ 467. <a name="In_1883_an_International_Union467" id="In_1883_an_International_Union467"></a>In 1883 an International Union for the Protection of Industrial Property, and in 1886 an International Union for the Protection of Works of Literature<span class="pagenum"><a name="Page_517" id="Page_517">[Pg 517]</a></span> and Art, were created, with an international office in @@ -26529,12 +26488,12 @@ who edit a monthly, <i>Le Droit d'Auteur</i>, in French.<a name="FNanchor_817_817" id="FNanchor_817_817"></a><a href="#Footnote_817_817" class="fnanchor">[817]</a></p> <div class="footnote"><p><a name="Footnote_817_817" id="Footnote_817_817"></a><a href="#FNanchor_817_817"><span class="label">[817]</span></a> See - below, §§ <a href="#On_September584">584</a> + below, §§ <a href="#On_September584">584</a> and <a href="#On_March2of585">585, No. 2</a>.</p></div> <div class="sidenote"><p>The Pan-American Union.</p></div> -<p>§ 467<i>a</i>. <a name="The_first_Pan-American_Conference467a" id="The_first_Pan-American_Conference467a"></a>The first Pan-American Conference of 1889 +<p>§ 467<i>a</i>. <a name="The_first_Pan-American_Conference467a" id="The_first_Pan-American_Conference467a"></a>The first Pan-American Conference of 1889 created "The American International Bureau," which, since the fourth Conference of 1910, bears the name "The Pan-American Union." There are a director, an @@ -26542,22 +26501,22 @@ assistant director, and several secretaries. This office<a name="FNanchor_818_81 publishes a "Monthly Bulletin."</p> <div class="footnote"><p><a name="Footnote_818_818" id="Footnote_818_818"></a><a href="#FNanchor_818_818"><span class="label">[818]</span></a> See - below, § <a href="#The_first_Pan595">595</a>.</p></div> + below, § <a href="#The_first_Pan595">595</a>.</p></div> -<div class="sidenote"><p>Maritime Office at Zanzibar, and Bureau Spécial at Brussels.</p></div> +<div class="sidenote"><p>Maritime Office at Zanzibar, and Bureau Spécial at Brussels.</p></div> -<p>§ 468. <a name="In_accordance_with_the_General_Act468" id="In_accordance_with_the_General_Act468"></a>In accordance with the General Act of the +<p>§ 468. <a name="In_accordance_with_the_General_Act468" id="In_accordance_with_the_General_Act468"></a>In accordance with the General Act of the Anti-Slavery Conference of Brussels, 1890, the International Maritime Office at Zanzibar and the "Bureau -Spécial" at Brussels were established; the latter is +Spécial" at Brussels were established; the latter is attached to the Belgian Foreign Office at Brussels.<a name="FNanchor_819_819" id="FNanchor_819_819"></a><a href="#Footnote_819_819" class="fnanchor">[819]</a></p> <div class="footnote"><p><a name="Footnote_819_819" id="Footnote_819_819"></a><a href="#FNanchor_819_819"><span class="label">[819]</span></a> See - below, § <a href="#A_treaty_concerning_slave1of592">592, No. 1</a>.</p></div> + below, § <a href="#A_treaty_concerning_slave1of592">592, No. 1</a>.</p></div> <div class="sidenote"><p>International Office of Customs Tariffs.</p></div> -<p>§ 469. <a name="The_International_Union469" id="The_International_Union469"></a>The International Union for the Publication +<p>§ 469. <a name="The_International_Union469" id="The_International_Union469"></a>The International Union for the Publication of Customs Tariffs, concluded in 1890, has created an international office<a name="FNanchor_820_820" id="FNanchor_820_820"></a><a href="#Footnote_820_820" class="fnanchor">[820]</a> at Brussels. There are a director, a secretary, and ten translators. The office edits the @@ -26565,11 +26524,11 @@ a secretary, and ten translators. The office edits the Italian, and Spanish.</p> <div class="footnote"><p><a name="Footnote_820_820" id="Footnote_820_820"></a><a href="#FNanchor_820_820"><span class="label">[820]</span></a> See - below, § <a href="#On_July1of585">585, No. 1</a>.</p></div> + below, § <a href="#On_July1of585">585, No. 1</a>.</p></div> <div class="sidenote"><p>Central Office of International Transports.</p></div> -<p>§ 470. <a name="Nine_States470" id="Nine_States470"></a>Nine States—namely, Austria-Hungary, Belgium, +<p>§ 470. <a name="Nine_States470" id="Nine_States470"></a>Nine States—namely, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Luxemburg, Russia, Switzerland—entered in 1890 into an international convention in regard to transports and freights @@ -26577,11 +26536,11 @@ on railways and have created the "Office Central des Transports<a name="FNanchor_821_821" id="FNanchor_821_821"></a><a href="#Footnote_821_821" class="fnanchor">[821]</a> Internationaux" at Berne.</p> <div class="footnote"><p><a name="Footnote_821_821" id="Footnote_821_821"></a><a href="#FNanchor_821_821"><span class="label">[821]</span></a> See - below, § <a href="#A_general_convent1of583">583, No. 1</a>.</p></div> + below, § <a href="#A_general_convent1of583">583, No. 1</a>.</p></div> <div class="sidenote"><p>Permanent Office of the Sugar Convention.</p></div> -<p>§ 471. <a name="The_States_which471" id="The_States_which471"></a>The States which concluded on March 5, +<p>§ 471. <a name="The_States_which471" id="The_States_which471"></a>The States which concluded on March 5, 1902, at Brussels the Convention concerning bounties on sugar<a name="FNanchor_822_822" id="FNanchor_822_822"></a><a href="#Footnote_822_822" class="fnanchor">[822]</a> have, in compliance with article 7 of this Convention, instituted a permanent office at Brussels. @@ -26591,29 +26550,29 @@ collect, translate, and publish information of all kinds respecting legislation on and statistics of sugar.</p> <div class="footnote"><p><a name="Footnote_822_822" id="Footnote_822_822"></a><a href="#FNanchor_822_822"><span class="label">[822]</span></a> See - below, § <a href="#On_March3of585">585, No. 3.</a></p></div> + below, § <a href="#On_March3of585">585, No. 3.</a></p></div> <div class="footnote"><p><a name="Footnote_823_823" id="Footnote_823_823"></a><a href="#FNanchor_823_823"><span class="label">[823]</span></a> See - above, § <a href="#According_to_article462">462</a>.</p></div> + above, § <a href="#According_to_article462">462</a>.</p></div> <div class="sidenote"><p>Agricultural Institute.</p></div> -<p>§ 471<i>a</i>. <a name="In_1905_the_Agricultural471a" id="In_1905_the_Agricultural471a"></a>In 1905 the Agricultural Institute<a name="FNanchor_824_824" id="FNanchor_824_824"></a><a href="#Footnote_824_824" class="fnanchor">[824]</a> was +<p>§ 471<i>a</i>. <a name="In_1905_the_Agricultural471a" id="In_1905_the_Agricultural471a"></a>In 1905 the Agricultural Institute<a name="FNanchor_824_824" id="FNanchor_824_824"></a><a href="#Footnote_824_824" class="fnanchor">[824]</a> was established at Rome. It consists of a General Assembly and a Permanent Committee with a general secretary.</p> <div class="footnote"><p><a name="Footnote_824_824" id="Footnote_824_824"></a><a href="#FNanchor_824_824"><span class="label">[824]</span></a> See - below, § <a href="#On_June1of586">586, No. 1</a>.</p></div> + below, § <a href="#On_June1of586">586, No. 1</a>.</p></div> <div class="sidenote"><p>International Health Office.</p></div> -<p>§ 471<i>b</i>. <a name="In_1907_the_International_Health471b" id="In_1907_the_International_Health471b"></a>In 1907 the International Health Office<a name="FNanchor_825_825" id="FNanchor_825_825"></a><a href="#Footnote_825_825" class="fnanchor">[825]</a> +<p>§ 471<i>b</i>. <a name="In_1907_the_International_Health471b" id="In_1907_the_International_Health471b"></a>In 1907 the International Health Office<a name="FNanchor_825_825" id="FNanchor_825_825"></a><a href="#Footnote_825_825" class="fnanchor">[825]</a> was established at Paris. It consists of a director, a general secretary, and a number of clerks. It publishes at least once a month a bulletin in French.</p> <div class="footnote"><p><a name="Footnote_825_825" id="Footnote_825_825"></a><a href="#FNanchor_825_825"><span class="label">[825]</span></a> See - below, § <a href="#In_the_interest590">590</a>, No. 6.</p></div> + below, § <a href="#In_the_interest590">590</a>, No. 6.</p></div> @@ -26624,11 +26583,11 @@ at least once a month a bulletin in French.</p> -<p class="indh1">Lawrence, § 221—Bonfils, No. 970<span class="topnum">8</span>—Despagnet, Nos. 736-740.</p> +<p class="indh1">Lawrence, § 221—Bonfils, No. 970<span class="topnum">8</span>—Despagnet, Nos. 736-740.</p> <div class="sidenote"><p>Organisation of Court in general.</p></div> -<p>§ 472. <a name="In472" id="In472"></a>In compliance with articles 20 to 29 of the +<p>§ 472. <a name="In472" id="In472"></a>In compliance with articles 20 to 29 of the Hague Convention for the peaceful adjustment of international differences, the signatory Powers in 1900 organised the International Court of Arbitration at @@ -26645,13 +26604,13 @@ of 1907.</p> <div class="sidenote"><p>The Permanent Council.</p></div> -<p>§ 473. The Permanent Council (article 49) consists +<p>§ 473. The Permanent Council (article 49) consists of the diplomatic envoys of the contracting Powers accredited to Holland and the Dutch Secretary for Foreign Affairs, who acts as president of the Council. The task of the Council is the control of the International<span class="pagenum"><a name="Page_519" id="Page_519">[Pg 519]</a></span> Bureau of the Court, the appointment, suspension, -and dismissal of the <i>employés</i> of the bureau, +and dismissal of the <i>employés</i> of the bureau, the fixing of the payments and salaries, the control of the general expenditure, and the decision of all questions of administration with regard to the business of @@ -26665,7 +26624,7 @@ majority of votes.</p> <div class="sidenote"><p>The International Bureau.</p></div> -<p>§ 474. <a name="The_International_Bureau474" id="The_International_Bureau474"></a>The International Bureau (article 43) serves +<p>§ 474. <a name="The_International_Bureau474" id="The_International_Bureau474"></a>The International Bureau (article 43) serves as the Registry for the Court. It is the intermediary for communications relating to the meetings of the Court. It has the custody of the archives and the @@ -26686,11 +26645,11 @@ signatory Powers in the proportion established for the International Office of the International Postal Union.</p> <div class="footnote"><p><a name="Footnote_826_826" id="Footnote_826_826"></a><a href="#FNanchor_826_826"><span class="label">[826]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Ac20">vol. II. § 20</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Ac20">vol. II. § 20</a>.</p></div> <div class="sidenote"><p>The Court of Arbitration.</p></div> -<p>§ 475. The Court of Arbitration (article 44) consists +<p>§ 475. The Court of Arbitration (article 44) consists of a large number of individuals "of recognised competence in questions of International Law, enjoying the highest moral reputation," selected and appointed by<span class="pagenum"><a name="Page_520" id="Page_520">[Pg 520]</a></span> @@ -26714,7 +26673,7 @@ members of the Court (article 42).</p> <div class="sidenote"><p>The Deciding Tribunal.</p></div> -<p>§ 476. <a name="Th476" id="Th476"></a>The Court of Arbitration does not as a body +<p>§ 476. <a name="Th476" id="Th476"></a>The Court of Arbitration does not as a body decide the cases brought before it, but a tribunal is created for every special case by selection of a number of arbitrators from the list of the members of the Court. @@ -26756,7 +26715,7 @@ equal shares, and each party pays its own expenses <div class="footnote"><p><a name="Footnote_827_827" id="Footnote_827_827"></a><a href="#FNanchor_827_827"><span class="label">[827]</span></a> The procedure to be followed by and before the Tribunal is -described below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Wa27">vol. II. § 27</a>.</p></div> +described below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Wa27">vol. II. § 27</a>.</p></div> <p>The following nine awards have hitherto been given @@ -26806,13 +26765,13 @@ concerning the British-Indian Savarkar; see Martens, N.R.G. <span class="smaller">THE INTERNATIONAL PRIZE COURT AND THE PROPOSED INTERNATIONAL COURT OF JUSTICE</span> </h4> -<p class="indh1">Lawrence, § 192—Despagnet, No. 683^{<i>bis</i>}—Scott, "The Hague Peace Conferences" +<p class="indh1">Lawrence, § 192—Despagnet, No. 683^{<i>bis</i>}—Scott, "The Hague Peace Conferences" (1909), pp. 465-511 and 423-464, and in A.J. V. (1911), pp. 302-324—Gregory in A.J. II. (1908), pp. 458-475.</p> <div class="sidenote"><p>The International Prize Court.</p></div> -<p>§ 476<i>a</i>. <a name="The_International_Prize476a" id="The_International_Prize476a"></a>The International Prize Court will be established +<p>§ 476<i>a</i>. <a name="The_International_Prize476a" id="The_International_Prize476a"></a>The International Prize Court will be established at the Hague according to Convention XII. of the second Hague Peace Conference of 1907. The following are the more important stipulations of this @@ -26880,7 +26839,7 @@ will be given below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047 <div class="sidenote"><p>The proposed International Court of Justice.</p></div> -<p>§ 476<i>b</i>. <a name="Va476b" id="Va476b"></a>Valuable as is the Permanent Court of Arbitration +<p>§ 476<i>b</i>. <a name="Va476b" id="Va476b"></a>Valuable as is the Permanent Court of Arbitration at the Hague, it must be pointed out that it is not a real Court of Justice. For, firstly, it is not itself a deciding tribunal, but only a list of names out of @@ -26963,13 +26922,13 @@ value, being the first Court of its kind.</p></div> <span class="smaller">NEGOTIATION</span> </h4> -<p class="indh1">Heffter, §§ 234-239—Geffcken in Holtzendorff, III. pp. 668-676—Liszt, § 20—Ullmann, -§ 71—Bonfils, Nos. 792-795—Pradier-Fodéré, III. Nos. -1354-1362—Rivier, II. § 45—Calvo, III. §§ 1316-1320, 1670-1673.</p> +<p class="indh1">Heffter, §§ 234-239—Geffcken in Holtzendorff, III. pp. 668-676—Liszt, § 20—Ullmann, +§ 71—Bonfils, Nos. 792-795—Pradier-Fodéré, III. Nos. +1354-1362—Rivier, II. § 45—Calvo, III. §§ 1316-1320, 1670-1673.</p> <div class="sidenote"><p>Conception of Negotiation.</p></div> -<p>§ 477. <a name="In477" id="In477"></a>International negotiation is the term for such +<p>§ 477. <a name="In477" id="In477"></a>International negotiation is the term for such intercourse between two or more States as is initiated and directed for the purpose of effecting an understanding between them on matters of interest. Since @@ -26985,14 +26944,14 @@ kind of negotiation, although it will be specially discussed in another part of this work.<a name="FNanchor_831_831" id="FNanchor_831_831"></a><a href="#Footnote_831_831" class="fnanchor">[831]</a></p> <div class="footnote"><p><a name="Footnote_830_830" id="Footnote_830_830"></a><a href="#FNanchor_830_830"><span class="label">[830]</span></a> See - below, §§ <a href="#International_transaction486">486</a>-490.</p></div> + below, §§ <a href="#International_transaction486">486</a>-490.</p></div> <div class="footnote"><p><a name="Footnote_831_831" id="Footnote_831_831"></a><a href="#FNanchor_831_831"><span class="label">[831]</span></a> See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th4">vol. II. §§ 4</a>-6.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Th4">vol. II. §§ 4</a>-6.</p></div> <div class="sidenote"><p>Parties to Negotiation.</p></div> -<p>§ 478. <a name="International_negotiations478" id="International_negotiations478"></a>International negotiations can be conducted +<p>§ 478. <a name="International_negotiations478" id="International_negotiations478"></a>International negotiations can be conducted by all such States as have a standing within the Family of Nations. Full-Sovereign States are, therefore, the regular subjects of international negotiation. But it @@ -27010,7 +26969,7 @@ for a colonial State must be conducted by the mother-State to which it internationally belongs.<a name="FNanchor_833_833" id="FNanchor_833_833"></a><a href="#Footnote_833_833" class="fnanchor">[833]</a></p> <div class="footnote"><p><a name="Footnote_832_832" id="Footnote_832_832"></a><a href="#FNanchor_832_832"><span class="label">[832]</span></a> See - above, § <a href="#Th91">91</a>.</p></div> + above, § <a href="#Th91">91</a>.</p></div> <div class="footnote"><p><a name="Footnote_833_833" id="Footnote_833_833"></a><a href="#FNanchor_833_833"><span class="label">[833]</span></a> The demand on the part of many influential Canadian politicians, expressed after the verdict of the Arbitration Court in the @@ -27033,7 +26992,7 @@ like, are not international negotiations.</p> <div class="sidenote"><p>Purpose of Negotiation.</p></div> -<p>§ 479. Negotiations between States may have various +<p>§ 479. Negotiations between States may have various purposes. The purpose may be an exchange of views only on some political question; but it may also be an arrangement as to the line of action to be taken @@ -27051,11 +27010,11 @@ or abolishing rules of International Law have been frequently and very successfully conducted.<a name="FNanchor_834_834" id="FNanchor_834_834"></a><a href="#Footnote_834_834" class="fnanchor">[834]</a></p> <div class="footnote"><p><a name="Footnote_834_834" id="Footnote_834_834"></a><a href="#FNanchor_834_834"><span class="label">[834]</span></a> See - below, §§ <a href="#La555">555</a>-568<i>b</i>.</p></div> + below, §§ <a href="#La555">555</a>-568<i>b</i>.</p></div> <div class="sidenote"><p>Negotiations by whom conducted.</p></div> -<p>§ 480. International negotiations are conducted by +<p>§ 480. International negotiations are conducted by the agents which represent the negotiating States. The heads of these States may conduct the negotiations in person, either by letters or by a personal interview. @@ -27076,18 +27035,18 @@ the help either of their diplomatic envoys or of agents without diplomatic character and so-called commissaries.<a name="FNanchor_837_837" id="FNanchor_837_837"></a><a href="#Footnote_837_837" class="fnanchor">[837]</a></p> <div class="footnote"><p><a name="Footnote_835_835" id="Footnote_835_835"></a><a href="#FNanchor_835_835"><span class="label">[835]</span></a> See - below, § <a href="#Th495">495</a>.</p></div> + below, § <a href="#Th495">495</a>.</p></div> <div class="footnote"><p><a name="Footnote_836_836" id="Footnote_836_836"></a><a href="#FNanchor_836_836"><span class="label">[836]</span></a> See - above, § <a href="#Ambassadors_form_the_first365">365</a>.</p></div> + above, § <a href="#Ambassadors_form_the_first365">365</a>.</p></div> <div class="footnote"><p><a name="Footnote_837_837" id="Footnote_837_837"></a><a href="#FNanchor_837_837"><span class="label">[837]</span></a> Negotiations between armed forces of belligerents are regularly conducted by soldiers. See - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Al220">vol. II. §§ 220</a>-240.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Al220">vol. II. §§ 220</a>-240.</p></div> <div class="sidenote"><p>Form of Negotiation.</p></div> -<p>§ 481. The Law of Nations does not prescribe any +<p>§ 481. The Law of Nations does not prescribe any particular form in which international negotiations must be conducted. Such negotiations may, therefore, take place <i>viva voce</i> or through the exchange of @@ -27100,7 +27059,7 @@ Of the greatest importance are the negotiations which take place through congresses and conferences.<a name="FNanchor_838_838" id="FNanchor_838_838"></a><a href="#Footnote_838_838" class="fnanchor">[838]</a></p> <div class="footnote"><p><a name="Footnote_838_838" id="Footnote_838_838"></a><a href="#FNanchor_838_838"><span class="label">[838]</span></a> See - below, § <a href="#International_congresses483">483</a>.</p></div> + below, § <a href="#International_congresses483">483</a>.</p></div> <p>During <i>viva voce</i> negotiations it happens sometimes that a diplomatic envoy negotiating with the Secretary @@ -27118,11 +27077,11 @@ the British Foreign Office.<a name="FNanchor_839_839" id="FNanchor_839_839"></a> <div class="footnote"><p><a name="Footnote_839_839" id="Footnote_839_839"></a><a href="#FNanchor_839_839"><span class="label">[839]</span></a> As regards the language used during negotiation, see - above, § <a href="#The_rise_of_permanent359">359</a>.</p></div> + above, § <a href="#The_rise_of_permanent359">359</a>.</p></div> <div class="sidenote"><p>End and Effect of Negotiation.</p></div> -<p>§ 482. Negotiations may and often do come to an +<p>§ 482. Negotiations may and often do come to an end without any effect whatever on account of the parties failing to agree. On the other hand, if negotiations lead to an understanding, the effect may be twofold. @@ -27136,7 +27095,7 @@ Treaties are of such importance that it is necessary to discuss them in a special chapter.<a name="FNanchor_840_840" id="FNanchor_840_840"></a><a href="#Footnote_840_840" class="fnanchor">[840]</a></p> <div class="footnote"><p><a name="Footnote_840_840" id="Footnote_840_840"></a><a href="#FNanchor_840_840"><span class="label">[840]</span></a> See - below, §§ <a href="#International_treaties491">491</a>-554.<span class="pagenum"><a name="Page_533" id="Page_533">[Pg 533]</a></span></p></div> + below, §§ <a href="#International_treaties491">491</a>-554.<span class="pagenum"><a name="Page_533" id="Page_533">[Pg 533]</a></span></p></div> @@ -27146,20 +27105,20 @@ discuss them in a special chapter.<a name="FNanchor_840_840" id="FNanchor_840_84 </h4> -<p class="indh1">Phillimore, II. §§ 39-40—Twiss, II. § 8—Taylor, §§ 34-36—Bluntschli, § 12—Heffter, -§ 242—Geffcken in Holtzendorff, III. pp. 679-684—Ullmann, -§§ 71-72—Bonfils, Nos. 796-814—Despagnet, Nos. 478-482—Pradier-Fodéré, -VI. Nos. 2593-2599—Rivier, II. § 46—Nys, III. pp. 7-17—Calvo, -III. §§ 1674-1681—Fiore, II. Nos. 1216-1224, and Code, Nos. -1206-1245—Martens, I. § 52—Charles de Martens, "Guide diplomatique," -vol. I. § 58—Pradier-Fodéré, "Cours de droit diplomatique" (1881), vol. -II. pp. 372-424—Zaleski, "Die völkerrechtliche Bedeutung der Congresse" -(1874)—Nippold, "Die Fortbildung des Verfahrens in völkerrechtlichen +<p class="indh1">Phillimore, II. §§ 39-40—Twiss, II. § 8—Taylor, §§ 34-36—Bluntschli, § 12—Heffter, +§ 242—Geffcken in Holtzendorff, III. pp. 679-684—Ullmann, +§§ 71-72—Bonfils, Nos. 796-814—Despagnet, Nos. 478-482—Pradier-Fodéré, +VI. Nos. 2593-2599—Rivier, II. § 46—Nys, III. pp. 7-17—Calvo, +III. §§ 1674-1681—Fiore, II. Nos. 1216-1224, and Code, Nos. +1206-1245—Martens, I. § 52—Charles de Martens, "Guide diplomatique," +vol. I. § 58—Pradier-Fodéré, "Cours de droit diplomatique" (1881), vol. +II. pp. 372-424—Zaleski, "Die völkerrechtliche Bedeutung der Congresse" +(1874)—Nippold, "Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten" (1907), pp. 480-526.</p> <div class="sidenote"><p>Conception of Congresses and Conferences.</p></div> -<p>§ 483. <a name="International_congresses483" id="International_congresses483"></a>International congresses and conferences are +<p>§ 483. <a name="International_congresses483" id="International_congresses483"></a>International congresses and conferences are formal meetings of the representatives of several States for the purpose of discussing matters of international interest and coming to an agreement concerning these @@ -27181,7 +27140,7 @@ for the Hague Peace Conferences of 1899 and conferences.</p> <div class="footnote"><p><a name="Footnote_841_841" id="Footnote_841_841"></a><a href="#FNanchor_841_841"><span class="label">[841]</span></a> See, - for instance, Martens, I. § 52; Fiore, II. §§ + for instance, Martens, I. § 52; Fiore, II. §§ 1216-1224, and Code, No. 1231.<span class="pagenum"><a name="Page_534" id="Page_534">[Pg 534]</a></span></p></div> <p>Much more important than the mere terminological @@ -27200,7 +27159,7 @@ of diplomatic representatives of the Powers.</p> <div class="sidenote"><p>Parties to Congresses and Conferences.</p></div> -<p>§ 484. Congresses and conferences not being organised +<p>§ 484. Congresses and conferences not being organised by customary or conventional International Law, no rules exist with regard to the parties of a congress or conference. Everything depends upon the purpose for @@ -27237,7 +27196,7 @@ frequently asked to send representatives to such congresses and conferences as meet for non-political matters.</p> <div class="footnote"><p><a name="Footnote_842_842" id="Footnote_842_842"></a><a href="#FNanchor_842_842"><span class="label">[842]</span></a> See - above, § <a href="#International_negotiations478">478</a>.</p></div> + above, § <a href="#International_negotiations478">478</a>.</p></div> <p>But no State can be a party which has not been invited, or admitted at its own request. If a Power @@ -27253,7 +27212,7 @@ for himself and his subordinates.</p> <div class="sidenote"><p>Procedure at Congresses and Conferences.</p></div> -<p>§ 485. After the place and time of meeting have +<p>§ 485. After the place and time of meeting have been arranged—such place may be neutralised for the purpose of securing the independence of the deliberations and discussions—the representatives meet and @@ -27295,21 +27254,21 @@ delegate was elected president.</p></div> </h4> -<p class="indh1">Bluntschli, § 84—Hartmann, § 91; Gareis, § 77—Liszt, § 20.</p> +<p class="indh1">Bluntschli, § 84—Hartmann, § 91; Gareis, § 77—Liszt, § 20.</p> <div class="sidenote"><p>Different kinds of Transaction.</p></div> -<p>§ 486. <a name="International_transaction486" id="International_transaction486"></a>International transaction is the term for +<p>§ 486. <a name="International_transaction486" id="International_transaction486"></a>International transaction is the term for every act on the part of a State in its intercourse with other States. Besides negotiation, which has been -discussed above in §§ 477-482, there are eleven other +discussed above in §§ 477-482, there are eleven other kinds of international transactions which are of legal importance—namely, declaration, notification, protest, renunciation, recognition, intervention, retorsion, reprisals, pacific blockade, war, and subjugation. Recognition -has already been discussed above in §§ 71-75, -as has also intervention in §§ 134-138, and, further, -subjugation in §§ 236-241. Retorsion, reprisals, pacific +has already been discussed above in §§ 71-75, +as has also intervention in §§ 134-138, and, further, +subjugation in §§ 236-241. Retorsion, reprisals, pacific blockade, and war will be treated in the second volume of this work. There are, therefore, here to be discussed only the remaining four transactions—namely, declaration, @@ -27317,7 +27276,7 @@ notification, protest, and renunciation.</p> <div class="sidenote"><p>Declaration.</p></div> -<p>§ 487. <a name="The_term487" id="The_term487"></a>The term "declaration" is used in three<span class="pagenum"><a name="Page_537" id="Page_537">[Pg 537]</a></span> +<p>§ 487. <a name="The_term487" id="The_term487"></a>The term "declaration" is used in three<span class="pagenum"><a name="Page_537" id="Page_537">[Pg 537]</a></span> different meanings. It is, first, sometimes used as the title of a body of stipulations of a treaty according to which the parties engage themselves to pursue in future @@ -27345,13 +27304,13 @@ the part of third States that they will remain neutral, and others.</p> <div class="footnote"><p><a name="Footnote_844_844" id="Footnote_844_844"></a><a href="#FNanchor_844_844"><span class="label">[844]</span></a> See - below, § <a href="#International_compacts508">508</a>, where is mentioned the attempt of the + below, § <a href="#International_compacts508">508</a>, where is mentioned the attempt of the British Foreign Office to give to the term "declaration" a specific meaning.</p></div> <div class="sidenote"><p>Notification.</p></div> -<p>§ 488. Notification is the technical term for the +<p>§ 488. Notification is the technical term for the communication to other States of the knowledge of certain facts and events of legal importance. But a distinction must be drawn between obligatory and @@ -27392,7 +27351,7 @@ of a new Secretary for Foreign Affairs, and the like.</p> <div class="sidenote"><p>Protest.</p></div> -<p>§ 489. Protest is a formal communication on the +<p>§ 489. Protest is a formal communication on the part of a State to another that it objects to an act performed or contemplated by the latter. A protest serves the purpose of preservation of rights, or of @@ -27421,14 +27380,14 @@ had raised against the introduction of the Customs tariff established at Madagascar after the annexation to France.</p></div> <div class="footnote"><p><a name="Footnote_847_847" id="Footnote_847_847"></a><a href="#FNanchor_847_847"><span class="label">[847]</span></a> See - below, § <a href="#Although_as_just_stated539">539</a>, + below, § <a href="#Although_as_just_stated539">539</a>, concerning the withdrawal of Russia from article 59 of the Treaty of Berlin, 1878, stipulating the freedom of the port of Batoum.</p></div> <div class="sidenote"><p>Renunciation.</p></div> -<p>§ 490. Renunciation is the deliberate abandonment +<p>§ 490. Renunciation is the deliberate abandonment of rights. It can be given <i>expressis verbis</i> or tacitly. If, for instance, a State by occupation takes possession of an island which has previously been occupied by @@ -27444,7 +27403,7 @@ only when a State remains silent, although a protest is necessary to preserve a claim.</p> <div class="footnote"><p><a name="Footnote_848_848" id="Footnote_848_848"></a><a href="#FNanchor_848_848"><span class="label">[848]</span></a> See - above, § <a href="#Dereliction_as_a_mode247">247</a>.<span class="pagenum"><a name="Page_540" id="Page_540">[Pg 540]</a></span></p></div> + above, § <a href="#Dereliction_as_a_mode247">247</a>.<span class="pagenum"><a name="Page_540" id="Page_540">[Pg 540]</a></span></p></div> @@ -27458,20 +27417,20 @@ necessary to preserve a claim.</p> <span class="smaller">CHARACTER AND FUNCTION OF TREATIES</span> </h4> -<p class="indh1">Vattel, II. §§ 152, 153, 157, 163—Hall, § 107—Phillimore, II. § 44—Twiss, I. -§§ 224-233—Taylor, §§ 341-342—Bluntschli, § 402—Heffter, § 81—Despagnet, -Nos. 435-436—Pradier-Fodéré, II. Nos. 888-919—Rivier, II. -pp. 33-40—Nys, III. pp. 18-20 and 43-48—Calvo, III. §§ 1567-1584—Fiore, -II. Nos. 976-982—Martens, I. § 103—Bergbohm, "Staatsverträge -und Gesetze als Quellen des Völkerrechts" (1877)—Jellinek, "Die -rechtliche Natur der Staatenverträge" (1880)—Laghi, "Teoria dei +<p class="indh1">Vattel, II. §§ 152, 153, 157, 163—Hall, § 107—Phillimore, II. § 44—Twiss, I. +§§ 224-233—Taylor, §§ 341-342—Bluntschli, § 402—Heffter, § 81—Despagnet, +Nos. 435-436—Pradier-Fodéré, II. Nos. 888-919—Rivier, II. +pp. 33-40—Nys, III. pp. 18-20 and 43-48—Calvo, III. §§ 1567-1584—Fiore, +II. Nos. 976-982—Martens, I. § 103—Bergbohm, "Staatsverträge +und Gesetze als Quellen des Völkerrechts" (1877)—Jellinek, "Die +rechtliche Natur der Staatenverträge" (1880)—Laghi, "Teoria dei trattati internazionali" (1882)—Buonamici, "Dei trattati internazionali" -(1888)—Nippold, "Der völkerrechtliche Vertrag" (1894)—Triepel, -"Völkerrecht und Landesrecht" (1899), pp. 27-90.</p> +(1888)—Nippold, "Der völkerrechtliche Vertrag" (1894)—Triepel, +"Völkerrecht und Landesrecht" (1899), pp. 27-90.</p> <div class="sidenote"><p>Conception of Treaties.</p></div> -<p>§ 491. <a name="International_treaties491" id="International_treaties491"></a>International treaties are conventions or contracts +<p>§ 491. <a name="International_treaties491" id="International_treaties491"></a>International treaties are conventions or contracts between two or more States concerning various matters of interest. Even before a Law of Nations in the modern sense of the term was in existence, treaties @@ -27487,7 +27446,7 @@ they do now.</p> <div class="sidenote"><p>Different kinds of Treaties.</p></div> -<p>§ 492. <a name="These_important_functions492" id="These_important_functions492"></a>These important functions are manifest if +<p>§ 492. <a name="These_important_functions492" id="These_important_functions492"></a>These important functions are manifest if attention is given to the variety of international treaties which exist nowadays and are day by day concluded for innumerable purposes. In regard to State property,<span class="pagenum"><a name="Page_541" id="Page_541">[Pg 541]</a></span> @@ -27507,7 +27466,7 @@ Again, various purposes are served by treaties concerning warfare, mediation, arbitration, and so on.</p> <div class="footnote"><p><a name="Footnote_849_849" id="Footnote_849_849"></a><a href="#FNanchor_849_849"><span class="label">[849]</span></a> See - below, §§ <a href="#Commercial_treaties578">578</a>-<a href="#Most_of_the_commercial580">580</a>.</p></div> + below, §§ <a href="#Commercial_treaties578">578</a>-<a href="#Most_of_the_commercial580">580</a>.</p></div> <p>I do not intend to discuss the question of classification of the different kinds of treaties, for hitherto @@ -27522,19 +27481,19 @@ Law of Nations. Treaties of this kind ought to be termed <i>law-making</i> treaties. On the other hand, treaties may be concluded for all kinds of other purposes. Law-making treaties as a source of rules of -International Law have been discussed above (§ <a href="#Treaties_are18">18</a>); +International Law have been discussed above (§ <a href="#Treaties_are18">18</a>); the most important of these treaties will be considered -below (§§ <a href="#The_Final_Act556">556</a>-568<i>b</i>).</p> +below (§§ <a href="#The_Final_Act556">556</a>-568<i>b</i>).</p> <div class="footnote"><p><a name="Footnote_850_850" id="Footnote_850_850"></a><a href="#FNanchor_850_850"><span class="label">[850]</span></a> Since the time of Grotius the science of the Law of Nations has not ceased attempting a satisfactory classification of the different -kinds of treaties. See Heffter, §§ 88-91; Bluntschli, §§ 442-445; -Martens, I. § 113; Ullmann, § 82; Wheaton, § 268 (following Vattel, II. -§ 169); Rivier, II. pp. 106-118; Westlake, I. p. 283, and many others.</p></div> +kinds of treaties. See Heffter, §§ 88-91; Bluntschli, §§ 442-445; +Martens, I. § 113; Ullmann, § 82; Wheaton, § 268 (following Vattel, II. +§ 169); Rivier, II. pp. 106-118; Westlake, I. p. 283, and many others.</p></div> <div class="sidenote"><p>Binding Force of Treaties.</p></div> -<p>§ 493. <a name="The_question_as_to493" id="The_question_as_to493"></a>The question as to the reason of the binding +<p>§ 493. <a name="The_question_as_to493" id="The_question_as_to493"></a>The question as to the reason of the binding force of international treaties always was, and still is,<span class="pagenum"><a name="Page_542" id="Page_542">[Pg 542]</a></span> very much disputed. That all those publicists who deny the legal character of the Law of Nations deny @@ -27558,12 +27517,12 @@ that the question can satisfactorily be dealt with only by dividing it into several different questions and by answering those questions <i>seriatim</i>.</p> -<div class="footnote"><p><a name="Footnote_851_851" id="Footnote_851_851"></a><a href="#FNanchor_851_851"><span class="label">[851]</span></a> So Hall, § 107; Jellinek, "Staatenverträge," p. 31; -Nippold, § 11.</p></div> +<div class="footnote"><p><a name="Footnote_851_851" id="Footnote_851_851"></a><a href="#FNanchor_851_851"><span class="label">[851]</span></a> So Hall, § 107; Jellinek, "Staatenverträge," p. 31; +Nippold, § 11.</p></div> -<div class="footnote"><p><a name="Footnote_852_852" id="Footnote_852_852"></a><a href="#FNanchor_852_852"><span class="label">[852]</span></a> So Triepel, "Völkerrecht und Landesrecht" (1899), p. 82.</p></div> +<div class="footnote"><p><a name="Footnote_852_852" id="Footnote_852_852"></a><a href="#FNanchor_852_852"><span class="label">[852]</span></a> So Triepel, "Völkerrecht und Landesrecht" (1899), p. 82.</p></div> -<div class="footnote"><p><a name="Footnote_853_853" id="Footnote_853_853"></a><a href="#FNanchor_853_853"><span class="label">[853]</span></a> So Bluntschli, § 410.</p></div> +<div class="footnote"><p><a name="Footnote_853_853" id="Footnote_853_853"></a><a href="#FNanchor_853_853"><span class="label">[853]</span></a> So Bluntschli, § 410.</p></div> <p>First, the question is to be answered why treaties are legally binding. The answer must categorically be @@ -27596,7 +27555,7 @@ binding force because there is no judicial authority for the enforcement of their stipulations.</p> <div class="footnote"><p><a name="Footnote_854_854" id="Footnote_854_854"></a><a href="#FNanchor_854_854"><span class="label">[854]</span></a> See - above, § <a href="#On_the_basis_of5">5</a>.</p></div> + above, § <a href="#On_the_basis_of5">5</a>.</p></div> <h4> @@ -27605,18 +27564,18 @@ the enforcement of their stipulations.</p> </h4> -<p class="indh1">Vattel, II. §§ 154-156, 206-212—Hall, § 108—Westlake, I. p. 279—Phillimore, -II. §§ 48-49—Halleck, I. pp. 275-278—Taylor, §§ 361-365—Wheaton, -§§ 265-267—Moore, V. §§ 734-737—Bluntschli, §§ 403-409—Heffter, §§ -84-85—Ullmann, § 75—Bonfils, No. 818—Despagnet, No. 446—Pradier-Fodéré, +<p class="indh1">Vattel, II. §§ 154-156, 206-212—Hall, § 108—Westlake, I. p. 279—Phillimore, +II. §§ 48-49—Halleck, I. pp. 275-278—Taylor, §§ 361-365—Wheaton, +§§ 265-267—Moore, V. §§ 734-737—Bluntschli, §§ 403-409—Heffter, §§ +84-85—Ullmann, § 75—Bonfils, No. 818—Despagnet, No. 446—Pradier-Fodéré, II. Nos. 1058-1068—Rivier, II. pp. 45-48—Nys, III. pp. 20-24—Calvo, -III. §§ 1616-1618—Fiore, II. Nos. 984-1000, and Code, Nos. 743-749—Martens, -I. § 104—Nippold, op. cit. pp. 104-112—Schoen in Z.V. V. +III. §§ 1616-1618—Fiore, II. Nos. 984-1000, and Code, Nos. 743-749—Martens, +I. § 104—Nippold, op. cit. pp. 104-112—Schoen in Z.V. V. (1911), pp. 400-431.</p> <div class="sidenote"><p>The Treaty-making Power.</p></div> -<p>§ 494. The so-called right of making treaties is not +<p>§ 494. The so-called right of making treaties is not a right of a State in the technical meaning of the term, but a mere competence attaching to sovereignty. A State possesses, therefore, treating-making power only @@ -27654,7 +27613,7 @@ States.</p></div> <div class="sidenote"><p>Treaty-making Power exercised by Heads of States.</p></div> -<p>§ 495. <a name="Th495" id="Th495"></a>The treaty-making power of all States is +<p>§ 495. <a name="Th495" id="Th495"></a>The treaty-making power of all States is exercised by their heads, either personally or through representatives appointed by these heads. The Holy Alliance of Paris, 1815, was personally concluded by @@ -27686,11 +27645,11 @@ If nowadays representatives exceed their powers, their States can simply refuse ratification of the <i>sponsio</i>.</p> <div class="footnote"><p><a name="Footnote_856_856" id="Footnote_856_856"></a><a href="#FNanchor_856_856"><span class="label">[856]</span></a> See - below, § <a href="#Ratification_is_the_term510">510</a>.</p></div> + below, § <a href="#Ratification_is_the_term510">510</a>.</p></div> <div class="sidenote"><p>Minor Functionaries exercising Treaty-making Power.</p></div> -<p>§ 496. <a name="For_some_non-political496" id="For_some_non-political496"></a>For some non-political purposes of minor +<p>§ 496. <a name="For_some_non-political496" id="For_some_non-political496"></a>For some non-political purposes of minor importance, certain minor functionaries are recognised as competent to exercise the treaty-making power of their States. Such functionaries are <i>ipso facto</i> by their @@ -27709,7 +27668,7 @@ powers.</p> <div class="sidenote"><p>Constitutional Restrictions.</p></div> -<p>§ 497. <a name="Al497" id="Al497"></a>Although the heads of States are regularly, +<p>§ 497. <a name="Al497" id="Al497"></a>Although the heads of States are regularly, according to the Law of Nations, the organs that exercise the treaty-making power of the States, constitutional restrictions imposed upon the heads concerning @@ -27746,7 +27705,7 @@ Nippold, op. cit. pp. 127-164; see also Schoen, loc. cit.</p></div> <div class="sidenote"><p>Mutual Consent of the Contracting Parties.</p></div> -<p>§ 498. A treaty being a convention, mutual consent +<p>§ 498. A treaty being a convention, mutual consent of the parties is necessary. Mere proposals made by one party and not accepted by the other are, therefore, not binding upon the proposer. Without force are @@ -27773,7 +27732,7 @@ points by a treaty, whereas the former does not.</p> <div class="sidenote"><p>Freedom of Action of consenting Representatives.</p></div> -<p>§ 499. As a treaty will lack binding force without +<p>§ 499. As a treaty will lack binding force without real consent, absolute freedom of action on the part of the contracting parties is required. It must, however, be understood that circumstances of urgent distress, @@ -27801,11 +27760,11 @@ necessity in shaking off such obligations, but this does not alter the fact that such action is a breach of law.</p> <div class="footnote"><p><a name="Footnote_860_860" id="Footnote_860_860"></a><a href="#FNanchor_860_860"><span class="label">[860]</span></a> See - examples in Moore, V. § 742.</p></div> + examples in Moore, V. § 742.</p></div> <div class="sidenote"><p>Delusion and Error in Contracting Parties.</p></div> -<p>§ 500. <a name="Although_a_treaty500" id="Although_a_treaty500"></a>Although a treaty was concluded with the<span class="pagenum"><a name="Page_548" id="Page_548">[Pg 548]</a></span> +<p>§ 500. <a name="Although_a_treaty500" id="Although_a_treaty500"></a>Although a treaty was concluded with the<span class="pagenum"><a name="Page_548" id="Page_548">[Pg 548]</a></span> real consent of the parties, it is nevertheless not binding if the consent was given in error, or under a delusion produced by a fraud of the other contracting @@ -27823,17 +27782,17 @@ which prevent the treaty from being binding.</p> </h4> -<p class="indh1">Vattel, II. §§ 160-162, 166—Hall, § 108—Phillimore, II. § 51—Walker, § 30—Bluntschli, -§§ 410-416—Heffter, § 83—Ullmann, § 97—Bonfils, No. 819—Despagnet, -No. 445—Pradier-Fodéré, II. Nos. 1080-1083—Mérignhac, +<p class="indh1">Vattel, II. §§ 160-162, 166—Hall, § 108—Phillimore, II. § 51—Walker, § 30—Bluntschli, +§§ 410-416—Heffter, § 83—Ullmann, § 97—Bonfils, No. 819—Despagnet, +No. 445—Pradier-Fodéré, II. Nos. 1080-1083—Mérignhac, II. p. 640—Rivier, II. pp. 57-63—Nys, III. p. 24—Fiore, II. Nos. 1001-1004, -and Code, Nos. 755-758—Martens, I. § 110—Jellinek, "Die -rechtliche Natur der Staatenverträge" (1880), pp. 59-60—Nippold, op. cit. +and Code, Nos. 755-758—Martens, I. § 110—Jellinek, "Die +rechtliche Natur der Staatenverträge" (1880), pp. 59-60—Nippold, op. cit. pp. 181-190.</p> <div class="sidenote"><p>Objects in general of Treaties.</p></div> -<p>§ 501. The object of treaties is always an obligation, +<p>§ 501. The object of treaties is always an obligation, whether mutual between all the parties or unilateral on the part of one only. Speaking generally, the object of treaties can be an obligation concerning any matter @@ -27849,11 +27808,11 @@ beginning null and void.<a name="FNanchor_861_861" id="FNanchor_861_861"></a><a <div class="footnote"><p><a name="Footnote_861_861" id="Footnote_861_861"></a><a href="#FNanchor_861_861"><span class="label">[861]</span></a> The voidance <i>ab origine</i> of these treaties must not be confounded with voidance of such treaties as are valid in their inception, but become afterwards void on some ground or other; see - below, §§ <a href="#All_treaties541">541</a>-544.</p></div> + below, §§ <a href="#All_treaties541">541</a>-544.</p></div> <div class="sidenote"><p>Obligations of Contracting Parties only can be Object.</p></div> -<p>§ 502. Obligations to be performed by a State other +<p>§ 502. Obligations to be performed by a State other than a contracting party cannot be the object of a<span class="pagenum"><a name="Page_549" id="Page_549">[Pg 549]</a></span> treaty. A treaty stipulating such an obligation would be null and void. But this must not be confounded with @@ -27866,7 +27825,7 @@ States, and the treaty is therefore valid and binding.</p> <div class="sidenote"><p>An Obligation inconsistent with other Obligations cannot be an Object.</p></div> -<p>§ 503. Such obligation as is inconsistent with obligations +<p>§ 503. Such obligation as is inconsistent with obligations under treaties previously concluded by one State with another cannot be the object of a treaty with a third State. Thus, in 1878, when after the war Russia @@ -27881,7 +27840,7 @@ of Berlin to arrange matters by mutual consent.</p> <div class="sidenote"><p>Object must be physically possible.</p></div> -<p>§ 504. An obligation to perform a physical impossibility<a name="FNanchor_863_863" id="FNanchor_863_863"></a><a href="#Footnote_863_863" class="fnanchor">[863]</a> +<p>§ 504. An obligation to perform a physical impossibility<a name="FNanchor_863_863" id="FNanchor_863_863"></a><a href="#Footnote_863_863" class="fnanchor">[863]</a> cannot be the object of a treaty. If perchance a State entered into a convention stipulating an obligation of that kind, no right to claim damages for non-fulfilment @@ -27889,11 +27848,11 @@ of the obligation would arise for the other party, such treaty being legally null and void.</p> <div class="footnote"><p><a name="Footnote_863_863" id="Footnote_863_863"></a><a href="#FNanchor_863_863"><span class="label">[863]</span></a> See - below, § <a href="#All_treaties_whose542">542</a>.</p></div> + below, § <a href="#All_treaties_whose542">542</a>.</p></div> <div class="sidenote"><p>Immoral Obligations.</p></div> -<p>§ 505. <a name="It_is_a_customarily_recognised505" id="It_is_a_customarily_recognised505"></a>It is a customarily recognised rule of the Law +<p>§ 505. <a name="It_is_a_customarily_recognised505" id="It_is_a_customarily_recognised505"></a>It is a customarily recognised rule of the Law of Nations that immoral obligations cannot be the object of an international treaty. Thus, an alliance for the purpose of attacking a third State without provocation @@ -27911,7 +27870,7 @@ decide the controversy.</p> <div class="sidenote"><p>Illegal Obligations.</p></div> -<p>§ 506. It is a unanimously recognised customary +<p>§ 506. It is a unanimously recognised customary rule of International Law that obligations which are at variance with universally recognised principles of International Law cannot be the object of a treaty. @@ -27931,17 +27890,17 @@ of piracy on the High Seas.</p> <span class="smaller">FORM AND PARTS OF TREATIES</span> </h4> -<p class="indh1">Grotius, II. c. 15, § 5—Vattel, II. § 153—Hall, § 109—Westlake, I. pp. 279-281—Wheaton, -§ 253—Moore, V. § 740—Bluntschli, §§ 417-427—Hartmann, -§§ 46-47—Heffter, §§ 87-91—Ullmann, § 80—Bonfils, Nos. -821-823—Pradier-Fodéré, II. Nos. 1084-1099—Mérignhac, II. p. 645—Rivier, +<p class="indh1">Grotius, II. c. 15, § 5—Vattel, II. § 153—Hall, § 109—Westlake, I. pp. 279-281—Wheaton, +§ 253—Moore, V. § 740—Bluntschli, §§ 417-427—Hartmann, +§§ 46-47—Heffter, §§ 87-91—Ullmann, § 80—Bonfils, Nos. +821-823—Pradier-Fodéré, II. Nos. 1084-1099—Mérignhac, II. p. 645—Rivier, II. pp. 64-68—Nys, III. pp. 25-28—Fiore, II. Nos. 1004-1006, and -Code, Nos. 759-763—Martens, I. § 112—Jellinek, "Die rechtliche Natur -der Staatenverträge" (1880), p. 56—Nippold, op. cit. pp. 178-181.</p> +Code, Nos. 759-763—Martens, I. § 112—Jellinek, "Die rechtliche Natur +der Staatenverträge" (1880), p. 56—Nippold, op. cit. pp. 178-181.</p> <div class="sidenote"><p>No necessary Form of Treaties.</p></div> -<p>§ 507. The Law of Nations includes no rule which +<p>§ 507. The Law of Nations includes no rule which prescribes a necessary form of treaties. A treaty is, therefore, concluded as soon as the mutual consent of the parties becomes clearly apparent. Such consent @@ -27967,10 +27926,10 @@ a written<a name="FNanchor_865_865" id="FNanchor_865_865"></a><a href="#Footnote of the contracting parties.</p> <div class="footnote"><p><a name="Footnote_864_864" id="Footnote_864_864"></a><a href="#FNanchor_864_864"><span class="label">[864]</span></a> See - Martens, I. § 112.</p></div> + Martens, I. § 112.</p></div> <div class="footnote"><p><a name="Footnote_865_865" id="Footnote_865_865"></a><a href="#FNanchor_865_865"><span class="label">[865]</span></a> The only writer who nowadays insists upon a <i>written</i> -agreement for a treaty to be valid is, as far as I know, Bulmerincq (§ +agreement for a treaty to be valid is, as far as I know, Bulmerincq (§ 56). But although all important treaties are naturally concluded in writing, the example of the agreements concluded between armed forces in time of war either orally or through symbols proves that the written @@ -27978,7 +27937,7 @@ form is not absolutely necessary.</p></div> <div class="sidenote"><p>Acts, Conventions, Declarations.</p></div> -<p>§ 508. <a name="International_compacts508" id="International_compacts508"></a>International compacts which take the form of +<p>§ 508. <a name="International_compacts508" id="International_compacts508"></a>International compacts which take the form of written contracts, are, besides <i>Agreements</i> or <i>Treaties</i>, sometimes termed <i>Acts</i>, sometimes <i>Conventions</i>, sometimes <i>Declarations</i>. But there is no essential difference @@ -28014,11 +27973,11 @@ Naval Conference held in London, December 1908-1909, p. 57.</p></div> <div class="footnote"><p><a name="Footnote_867_867" id="Footnote_867_867"></a><a href="#FNanchor_867_867"><span class="label">[867]</span></a> See - above, § <a href="#The_term487">487</a>.</p></div> + above, § <a href="#The_term487">487</a>.</p></div> <div class="sidenote"><p>Parts of Treaties.</p></div> -<p>§ 509. Since International Law lays down no rules +<p>§ 509. Since International Law lays down no rules concerning the form of treaties, there exist no rules concerning the arrangement of the parts of written treaties. But the following order is usually observed. @@ -28039,8 +27998,8 @@ It may also happen that a treaty contains secret stipulations in an additional part, which are not made public with the bulk of the stipulations.<a name="FNanchor_868_868" id="FNanchor_868_868"></a><a href="#Footnote_868_868" class="fnanchor">[868]</a></p> -<div class="footnote"><p><a name="Footnote_868_868" id="Footnote_868_868"></a><a href="#FNanchor_868_868"><span class="label">[868]</span></a> The matter is treated with all details by Pradier-Fodéré, -II. §§ 1086-1096.<span class="pagenum"><a name="Page_553" id="Page_553">[Pg 553]</a></span></p></div> +<div class="footnote"><p><a name="Footnote_868_868" id="Footnote_868_868"></a><a href="#FNanchor_868_868"><span class="label">[868]</span></a> The matter is treated with all details by Pradier-Fodéré, +II. §§ 1086-1096.<span class="pagenum"><a name="Page_553" id="Page_553">[Pg 553]</a></span></p></div> @@ -28050,22 +28009,22 @@ II. §§ 1086-1096.<span class="pagenum"><a name="Page_553" id="Page_553">[Pg 553] </h4> -<p class="indh1">Grotius, II. c. 11, § 12—Pufendorf, III. c. 9, § 2—Vattel, II. § 156—Hall, -§ 110—Westlake, I. pp. 279-280—Lawrence, § 132—Phillimore, II. § 52—Twiss, -I. § 214—Halleck, I. pp. 276-277—Taylor, §§ 364-367—Moore, V. -§§ 743-756—Walker, § 30—Wharton, II. §§ 131-131<span class="smcap">A</span>—Wheaton, §§ 256-263—Bluntschli, -§§ 420-421—Heffter, § 87—Gessner in Holtzendorff, -III. pp. 15-18—Ullmann, § 78—Bonfils, Nos. 824-831—Pradier-Fodéré, -II. Nos. 1100-1119—Mérignhac, II. pp. 652-666—Nys, III. pp. 28-36—Rivier, -II. § 50—Calvo, III. §§ 1627-1636—Fiore, II. No. 994, and Code, -No. 750—Martens, I. §§ 105-108—Wicquefort, "L'Ambassadeur et ses +<p class="indh1">Grotius, II. c. 11, § 12—Pufendorf, III. c. 9, § 2—Vattel, II. § 156—Hall, +§ 110—Westlake, I. pp. 279-280—Lawrence, § 132—Phillimore, II. § 52—Twiss, +I. § 214—Halleck, I. pp. 276-277—Taylor, §§ 364-367—Moore, V. +§§ 743-756—Walker, § 30—Wharton, II. §§ 131-131<span class="smcap">A</span>—Wheaton, §§ 256-263—Bluntschli, +§§ 420-421—Heffter, § 87—Gessner in Holtzendorff, +III. pp. 15-18—Ullmann, § 78—Bonfils, Nos. 824-831—Pradier-Fodéré, +II. Nos. 1100-1119—Mérignhac, II. pp. 652-666—Nys, III. pp. 28-36—Rivier, +II. § 50—Calvo, III. §§ 1627-1636—Fiore, II. No. 994, and Code, +No. 750—Martens, I. §§ 105-108—Wicquefort, "L'Ambassadeur et ses fonctions" (1680), II. Section XV.—Jellinek, "Die rechtliche Natur -der Staatenverträge" (1880), pp. 53-56—Nippold, op. cit. pp. 123-125—Wegmann, -"Die Ratifikation von Staatsverträgen" (1892).</p> +der Staatenverträge" (1880), pp. 53-56—Nippold, op. cit. pp. 123-125—Wegmann, +"Die Ratifikation von Staatsverträgen" (1892).</p> <div class="sidenote"><p>Conception and Function of Ratification.</p></div> -<p>§ 510. <a name="Ratification_is_the_term510" id="Ratification_is_the_term510"></a>Ratification is the term for the final confirmation +<p>§ 510. <a name="Ratification_is_the_term510" id="Ratification_is_the_term510"></a>Ratification is the term for the final confirmation given by the parties to an international treaty concluded by their representatives. Although a treaty is concluded as soon as the mutual consent is manifest @@ -28100,14 +28059,14 @@ that there is no essential difference between such treaties as want and such as do not want ratification.</p> <div class="footnote"><p><a name="Footnote_869_869" id="Footnote_869_869"></a><a href="#FNanchor_869_869"><span class="label">[869]</span></a> See, - for instance, Ullmann, § 78; Jellinek, p. 55; Nippold, + for instance, Ullmann, § 78; Jellinek, p. 55; Nippold, p. 123; Wegmann, p. 11.</p></div> <div class="footnote"><p><a name="Footnote_870_870" id="Footnote_870_870"></a><a href="#FNanchor_870_870"><span class="label">[870]</span></a> The matter is very ably discussed by Rivier, II. pp 74-76.</p></div> <div class="sidenote"><p>Rationale for the Institution of Ratification.</p></div> -<p>§ 511. The rationale for the institution of ratification +<p>§ 511. The rationale for the institution of ratification is another argument for the contention that the conclusion of the treaty by the representatives is to be distinguished from the confirmation given by the @@ -28131,7 +28090,7 @@ ratification a necessity for International Law.</p> <div class="sidenote"><p>Ratification regularly, but not absolutely, necessary.</p></div> -<p>§ 512. But ratification, although necessary in principle, +<p>§ 512. But ratification, although necessary in principle, is not always essential. Although it is now a universally recognised customary rule of International Law that treaties are regularly in need of ratification, @@ -28167,17 +28126,17 @@ with ratification, then renunciation is not binding upon the States which they represent.</p> <div class="footnote"><p><a name="Footnote_871_871" id="Footnote_871_871"></a><a href="#FNanchor_871_871"><span class="label">[871]</span></a> See - above, § <a href="#For_some_non-political496">496</a>.</p></div> + above, § <a href="#For_some_non-political496">496</a>.</p></div> <div class="footnote"><p><a name="Footnote_872_872" id="Footnote_872_872"></a><a href="#FNanchor_872_872"><span class="label">[872]</span></a> See - above, § <a href="#Al497">497</a>.</p></div> + above, § <a href="#Al497">497</a>.</p></div> <div class="footnote"><p><a name="Footnote_873_873" id="Footnote_873_873"></a><a href="#FNanchor_873_873"><span class="label">[873]</span></a> See Martens, N.R.G. I. p. 163.</p></div> <div class="sidenote"><p>Length of Time for Ratification.</p></div> -<p>§ 513. No rule of International Law prescribes the +<p>§ 513. No rule of International Law prescribes the length of time within which ratification must be given or refused. If such length of time is not specially stipulated by the contracting parties in the very treaty, a @@ -28192,7 +28151,7 @@ ratification should take place.</p> <div class="sidenote"><p>Refusal of Ratification.</p></div> -<p>§ 514. The question now requires attention whether +<p>§ 514. The question now requires attention whether ratification can be refused on just grounds only or according to discretion. Formerly<a name="FNanchor_874_874" id="FNanchor_874_874"></a><a href="#Footnote_874_874" class="fnanchor">[874]</a> it was maintained that ratification could not be refused in case the representatives @@ -28228,12 +28187,12 @@ the proposed Nicaragua Canal, signed on February 5, 1900, which was ratified with modifications by the Senate of the United States, this being equivalent to refusal of ratification. (See - below, § <a href="#It_follows_from517">517</a>.)</p> + below, § <a href="#It_follows_from517">517</a>.)</p> <div class="footnote"><p><a name="Footnote_874_874" id="Footnote_874_874"></a><a href="#FNanchor_874_874"><span class="label">[874]</span></a> See - Grotius, II. c. 11, § 12; Bynkershoek, "Quaestiones + Grotius, II. c. 11, § 12; Bynkershoek, "Quaestiones juris publici," II. 7; Wicquefort, "L'Ambassadeur," II. 15; Vattel, II. -§ 156; G. F. von Martens, § 48.</p></div> +§ 156; G. F. von Martens, § 48.</p></div> <div class="footnote"><p><a name="Footnote_875_875" id="Footnote_875_875"></a><a href="#FNanchor_875_875"><span class="label">[875]</span></a> This must be maintained in spite of Wegmann's (p. 32) assertion that a customary rule of the Law of Nations has to be @@ -28246,7 +28205,7 @@ ratification.</p></div> <div class="sidenote"><p>Form of Ratification.</p></div> -<p>§ 515. No rule of International Law exists which +<p>§ 515. No rule of International Law exists which prescribes a necessary form of ratification. Ratification can therefore be given as well tacitly as expressly. Tacit ratification takes place when a State begins the @@ -28274,7 +28233,7 @@ whole of the treaty ought to be recited <i>verbatim</i>.</p> <div class="sidenote"><p>Ratification by whom effected.</p></div> -<p>§ 516. Ratification is effected by those organs which +<p>§ 516. Ratification is effected by those organs which exercise the treaty-making power of the States. These organs are regularly the heads of the States, but they can, according to the Municipal Law of some States, @@ -28309,17 +28268,17 @@ upon payment because the French Government had admitted that such indemnity was due to her.<a name="FNanchor_878_878" id="FNanchor_878_878"></a><a href="#Footnote_878_878" class="fnanchor">[878]</a></p> <div class="footnote"><p><a name="Footnote_876_876" id="Footnote_876_876"></a><a href="#FNanchor_876_876"><span class="label">[876]</span></a> See, - for instance, Martens, § 107, and Rivier, II. p. 85.</p></div> + for instance, Martens, § 107, and Rivier, II. p. 85.</p></div> <div class="footnote"><p><a name="Footnote_877_877" id="Footnote_877_877"></a><a href="#FNanchor_877_877"><span class="label">[877]</span></a> See - above, § <a href="#Al497">497</a>, and Nippold, p. 147.</p></div> + above, § <a href="#Al497">497</a>, and Nippold, p. 147.</p></div> <div class="footnote"><p><a name="Footnote_878_878" id="Footnote_878_878"></a><a href="#FNanchor_878_878"><span class="label">[878]</span></a> See - Wharton, II. § 131<span class="smcap">A</span>, p. 20.<span class="pagenum"><a name="Page_559" id="Page_559">[Pg 559]</a></span></p></div> + Wharton, II. § 131<span class="smcap">A</span>, p. 20.<span class="pagenum"><a name="Page_559" id="Page_559">[Pg 559]</a></span></p></div> <div class="sidenote"><p>Ratification can not be partial and conditional.</p></div> -<p>§ 517. <a name="It_follows_from517" id="It_follows_from517"></a>It follows from the nature of ratification +<p>§ 517. <a name="It_follows_from517" id="It_follows_from517"></a>It follows from the nature of ratification as a necessary confirmation of a treaty already concluded that ratification must be either given or refused, no conditional or partial ratification being possible. @@ -28346,7 +28305,7 @@ fallen to the ground.</p> <div class="footnote"><p><a name="Footnote_879_879" id="Footnote_879_879"></a><a href="#FNanchor_879_879"><span class="label">[879]</span></a> This is the correct explanation of the practice on the part of States, which sometimes prevails, of acquiescing, after some hesitation, in alterations proposed by a party to a treaty in ratifying -it; see examples in Pradier-Fodéré, II. No. 1104, and Calvo, III. § +it; see examples in Pradier-Fodéré, II. No. 1104, and Calvo, III. § 1630.</p></div> <div class="footnote"><p><a name="Footnote_880_880" id="Footnote_880_880"></a><a href="#FNanchor_880_880"><span class="label">[880]</span></a> It is of importance to emphasise that the United States' @@ -28384,7 +28343,7 @@ and it would be incorrect to speak in this case of a partial ratification.</p> <div class="footnote"><p><a name="Footnote_882_882" id="Footnote_882_882"></a><a href="#FNanchor_882_882"><span class="label">[882]</span></a> See - below, § <a href="#By_a_treaty_the_contracting519">519</a>.</p></div> + below, § <a href="#By_a_treaty_the_contracting519">519</a>.</p></div> <p>Again, it is quite legitimate—and one ought not in that case to speak of conditional ratification—for a @@ -28409,7 +28368,7 @@ clauses of the treaty.<span class="pagenum"><a name="Page_561" id="Page_561">[Pg <div class="sidenote"><p>Effect of Ratification.</p></div> -<p>§ 518. <a name="The_effect_of_ratification518" id="The_effect_of_ratification518"></a>The effect of ratification is the binding force +<p>§ 518. <a name="The_effect_of_ratification518" id="The_effect_of_ratification518"></a>The effect of ratification is the binding force of the treaty. But the question arises whether the effect of ratification is retroactive, so that a treaty appears to be binding from the date when it is duly @@ -28435,7 +28394,7 @@ State knows that its representatives have exceeded their powers by concluding the treaty.</p> <div class="footnote"><p><a name="Footnote_883_883" id="Footnote_883_883"></a><a href="#FNanchor_883_883"><span class="label">[883]</span></a> See - above, § <a href="#Although_a_treaty500">500</a>.</p></div> + above, § <a href="#Although_a_treaty500">500</a>.</p></div> @@ -28445,17 +28404,17 @@ their powers by concluding the treaty.</p> </h4> -<p class="indh1">Hall, § 114—Lawrence, § 134—Halleck, I. pp. 279-281—Taylor, §§ 370-373—Wharton, -II. § 137—Wheaton, § 266—Bluntschli, §§ 415-416—Hartmann, -§ 49—Heffter, § 94—Bonfils, Nos. 845-848—Despagnet, Nos. 447-448—Pradier-Fodéré, -II. Nos. 1151-1155—Mérignhac, II. pp. 667-672—Rivier, -II. pp. 119-122—Calvo, III. §§ 1643-1648—Fiore, II. Nos. 1008-1009, -and Code, Nos. 768-778—Martens, I. §§ 65 and 114—Nippold, op. cit. +<p class="indh1">Hall, § 114—Lawrence, § 134—Halleck, I. pp. 279-281—Taylor, §§ 370-373—Wharton, +II. § 137—Wheaton, § 266—Bluntschli, §§ 415-416—Hartmann, +§ 49—Heffter, § 94—Bonfils, Nos. 845-848—Despagnet, Nos. 447-448—Pradier-Fodéré, +II. Nos. 1151-1155—Mérignhac, II. pp. 667-672—Rivier, +II. pp. 119-122—Calvo, III. §§ 1643-1648—Fiore, II. Nos. 1008-1009, +and Code, Nos. 768-778—Martens, I. §§ 65 and 114—Nippold, op. cit. pp. 151-160.</p> <div class="sidenote"><p>Effect of Treaties upon Contracting Parties.</p></div> -<p>§ 519. <a name="By_a_treaty_the_contracting519" id="By_a_treaty_the_contracting519"></a>By a treaty the contracting parties in the first +<p>§ 519. <a name="By_a_treaty_the_contracting519" id="By_a_treaty_the_contracting519"></a>By a treaty the contracting parties in the first place are concerned. The effect of the treaty upon them is that they are bound by its stipulations, and that<span class="pagenum"><a name="Page_562" id="Page_562">[Pg 562]</a></span> they must execute it in all its parts. No distinction @@ -28470,11 +28429,11 @@ as regards certain articles, such party is not bound by these articles, although it ratifies<a name="FNanchor_884_884" id="FNanchor_884_884"></a><a href="#Footnote_884_884" class="fnanchor">[884]</a> the treaty.</p> <div class="footnote"><p><a name="Footnote_884_884" id="Footnote_884_884"></a><a href="#FNanchor_884_884"><span class="label">[884]</span></a> See - above, § <a href="#The_effect_of_ratification518">518</a>.</p></div> + above, § <a href="#The_effect_of_ratification518">518</a>.</p></div> <div class="sidenote"><p>Effect of Treaties upon the Subjects of the Parties.</p></div> -<p>§ 520. It must be specially observed that the binding +<p>§ 520. It must be specially observed that the binding force of a treaty concerns the contracting States only, and not their subjects. As International Law is a law between States only and exclusively, treaties can have @@ -28493,16 +28452,16 @@ for example, special statutes to be passed by the respective Parliaments.<a name="FNanchor_886_886" id="FNanchor_886_886"></a><a href="#Footnote_886_886" class="fnanchor">[886]</a></p> <div class="footnote"><p><a name="Footnote_885_885" id="Footnote_885_885"></a><a href="#FNanchor_885_885"><span class="label">[885]</span></a> See - above, § <a href="#No289">289</a>.</p></div> + above, § <a href="#No289">289</a>.</p></div> <div class="footnote"><p><a name="Footnote_886_886" id="Footnote_886_886"></a><a href="#FNanchor_886_886"><span class="label">[886]</span></a> The distinction between International and Municipal Law as -discussed above, §§ 20-25, is the basis from which the question must be +discussed above, §§ 20-25, is the basis from which the question must be decided whether international treaties have a direct effect upon the officials and subjects of the contracting parties.</p></div> <div class="sidenote"><p>Effect of Changes in Government upon Treaties.</p></div> -<p>§ 521. <a name="As_treaties_are_binding521" id="As_treaties_are_binding521"></a>As treaties are binding upon the contracting +<p>§ 521. <a name="As_treaties_are_binding521" id="As_treaties_are_binding521"></a>As treaties are binding upon the contracting States, changes in the government or even in the form of government of one of the parties can as a rule have no influence whatever upon the binding force of treaties. @@ -28521,18 +28480,18 @@ then a change from such form makes such stipulation void, because its execution has become impossible.<a name="FNanchor_887_887" id="FNanchor_887_887"></a><a href="#Footnote_887_887" class="fnanchor">[887]</a></p> <div class="footnote"><p><a name="Footnote_887_887" id="Footnote_887_887"></a><a href="#FNanchor_887_887"><span class="label">[887]</span></a> See - below, § <a href="#All_treaties_whose542">542</a>. Not to be confounded with the effect of + below, § <a href="#All_treaties_whose542">542</a>. Not to be confounded with the effect of changes in government is the effect of a change in international status upon treaties, as, for instance, if a hitherto full-sovereign State becomes half- or part-Sovereign, or <i>vice versa</i>, or if a State merges entirely into another, and the like. This is a case of succession of States which has been discussed - above, §§ <a href="#When_a_State_merges82">82</a>-84; see also - below, § <a href="#A_cause_which548">548</a>.</p></div> + above, §§ <a href="#When_a_State_merges82">82</a>-84; see also + below, § <a href="#A_cause_which548">548</a>.</p></div> <div class="sidenote"><p>Effect of Treaties upon third States.</p></div> -<p>§ 522. <a name="According_to_the_principle522" id="According_to_the_principle522"></a>According to the principle <i>pacta tertiis nec +<p>§ 522. <a name="According_to_the_principle522" id="According_to_the_principle522"></a>According to the principle <i>pacta tertiis nec nocent nec prosunt</i>, 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 @@ -28547,7 +28506,7 @@ treaties containing the so-called <i>most-favoured-nation clause</i><a name="FNanchor_888_888" id="FNanchor_888_888"></a><a href="#Footnote_888_888" class="fnanchor">[888]</a> with one of the contracting parties.</p> <div class="footnote"><p><a name="Footnote_888_888" id="Footnote_888_888"></a><a href="#FNanchor_888_888"><span class="label">[888]</span></a> See - below, § <a href="#Most_of_the_commercial580">580</a>, but note the American interpretation of + below, § <a href="#Most_of_the_commercial580">580</a>, but note the American interpretation of this clause.</p></div> <p>The question arises whether in exceptional cases @@ -28578,10 +28537,10 @@ such rights through the unanimous tacit consent of all concerned.</p> <div class="footnote"><p><a name="Footnote_889_889" id="Footnote_889_889"></a><a href="#FNanchor_889_889"><span class="label">[889]</span></a> See - above, § <a href="#Already_in184">184</a>.</p></div> + above, § <a href="#Already_in184">184</a>.</p></div> <div class="footnote"><p><a name="Footnote_890_890" id="Footnote_890_890"></a><a href="#FNanchor_890_890"><span class="label">[890]</span></a> See - above, <a href="#Footnote_386_386">§ 205, p. 277, note 2</a>.</p></div> + above, <a href="#Footnote_386_386">§ 205, p. 277, note 2</a>.</p></div> <p>It must be emphasised that a treaty between two States can never invalidate a stipulation previously @@ -28606,10 +28565,10 @@ a third Power with whom one of the allies may have concluded a treaty of general arbitration.</p> <div class="footnote"><p><a name="Footnote_891_891" id="Footnote_891_891"></a><a href="#FNanchor_891_891"><span class="label">[891]</span></a> See - below, § <a href="#Casus573">573</a>.</p></div> + below, § <a href="#Casus573">573</a>.</p></div> <div class="footnote"><p><a name="Footnote_892_892" id="Footnote_892_892"></a><a href="#FNanchor_892_892"><span class="label">[892]</span></a> See - below, § <a href="#Alliances_in_the_strict569">569</a>.</p></div> + below, § <a href="#Alliances_in_the_strict569">569</a>.</p></div> @@ -28619,16 +28578,16 @@ concluded a treaty of general arbitration.</p> </h4> -<p class="indh1">Vattel, II. §§ 235-261—Hall, § 115—Lawrence, § 134—Phillimore, II. §§ 54-63<span class="smcap">A</span>—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.</p> +<p class="indh1">Vattel, II. §§ 235-261—Hall, § 115—Lawrence, § 134—Phillimore, II. §§ 54-63<span class="smcap">A</span>—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.</p> <div class="sidenote"><p>What means have been in use.</p></div> -<p>§ 523. As there is no international institution which +<p>§ 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 @@ -28642,7 +28601,7 @@ their treaty obligations than in former times.</p> <div class="sidenote"><p>Oaths.</p></div> -<p>§ 524. Oaths are a very old means of securing the +<p>§ 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 @@ -28665,7 +28624,7 @@ on the State for which it is taken.</p> <div class="sidenote"><p>Hostages.</p></div> -<p>§ 525. Hostages are as old a means of securing +<p>§ 525. Hostages are as old a means of securing treaties as oaths, but they have likewise, for ordinary purposes<a name="FNanchor_893_893" id="FNanchor_893_893"></a><a href="#Footnote_893_893" class="fnanchor">[893]</a> at least, become obsolete, because they have practically no value at all. The last case of a treaty @@ -28677,11 +28636,11 @@ hostages sent were Lords Sussex and Cathcart, who remained in France till July 1749.</p> <div class="footnote"><p><a name="Footnote_893_893" id="Footnote_893_893"></a><a href="#FNanchor_893_893"><span class="label">[893]</span></a> Concerning hostages nowadays taken in time of war, see - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_practice_of_taking_hostages258">vol. II. §§ 258</a>-259.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_practice_of_taking_hostages258">vol. II. §§ 258</a>-259.</p></div> <div class="sidenote"><p>Pledge.</p></div> -<p>§ 526. <a name="Th526" id="Th526"></a>The pledging of movable property by one of +<p>§ 526. <a name="Th526" id="Th526"></a>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 @@ -28690,11 +28649,11 @@ pledging of movables is nowadays quite obsolete, although it might on occasion be revived.</p> <div class="footnote"><p><a name="Footnote_894_894" id="Footnote_894_894"></a><a href="#FNanchor_894_894"><span class="label">[894]</span></a> See - Phillimore, II. § 55.</p></div> + Phillimore, II. § 55.</p></div> <div class="sidenote"><p>Occupation of Territory.</p></div> -<p>§ 527. <a name="Oc527" id="Oc527"></a>Occupation of territory, such as a fort or even +<p>§ 527. <a name="Oc527" id="Oc527"></a>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<span class="pagenum"><a name="Page_567" id="Page_567">[Pg 567]</a></span> @@ -28708,7 +28667,7 @@ payment of the war indemnity of five milliards of francs.</p> <div class="sidenote"><p>Guarantee.</p></div> -<p>§ 528. <a name="The_best528" id="The_best528"></a>The best means of securing treaties, and one +<p>§ 528. <a name="The_best528" id="The_best528"></a>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<a name="FNanchor_895_895" id="FNanchor_895_895"></a><a href="#Footnote_895_895" class="fnanchor">[895]</a> to the guaranteed @@ -28717,10 +28676,10 @@ the guarantor eventually to do what is in his power to compel the contracting party or parties to execute the treaty.<a name="FNanchor_896_896" id="FNanchor_896_896"></a><a href="#Footnote_896_896" class="fnanchor">[896]</a> Guarantee of a treaty is a species only of guarantee in general, which will be discussed below, -§§ <a href="#Treaties_of_guarantee574">574</a>-576<i>a</i>.</p> +§§ <a href="#Treaties_of_guarantee574">574</a>-576<i>a</i>.</p> <div class="footnote"><p><a name="Footnote_895_895" id="Footnote_895_895"></a><a href="#FNanchor_895_895"><span class="label">[895]</span></a> See - below, § <a href="#Of_accession_there_are_two_kinds532">532</a>.</p></div> + below, § <a href="#Of_accession_there_are_two_kinds532">532</a>.</p></div> <div class="footnote"><p><a name="Footnote_896_896" id="Footnote_896_896"></a><a href="#FNanchor_896_896"><span class="label">[896]</span></a> Nippold (p. 266) proposes that a universal treaty of guarantee should be concluded between all the members of the Family of @@ -28737,15 +28696,15 @@ treaties. I do not believe that this well-meant proposal is feasible.</p></div> </h4> -<p class="indh1">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.</p> +<p class="indh1">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.</p> <div class="sidenote"><p>Interest and Participation to be distinguished.</p></div> -<p>§ 529. Ordinarily a treaty creates rights and duties +<p>§ 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 @@ -28766,7 +28725,7 @@ to contract on its behalf.</p></div> <div class="sidenote"><p>Good Offices and Mediation.</p></div> -<p>§ 530. A treaty may be concluded with the help of +<p>§ 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 @@ -28777,11 +28736,11 @@ 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, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Di9">vol. II. § 9</a>.</p> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Di9">vol. II. § 9</a>.</p> <div class="sidenote"><p>Intervention.</p></div> -<p>§ 531. A third State may participate in a treaty in +<p>§ 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 @@ -28795,16 +28754,16 @@ France in 1895 against the peace treaty of Shimonoseki<a name="FNanchor_899_899" between Japan and China.</p> <div class="footnote"><p><a name="Footnote_898_898" id="Footnote_898_898"></a><a href="#FNanchor_898_898"><span class="label">[898]</span></a> See - above, § <a href="#If_an_external_affair2of135">135, p. 190, No. 2</a>.</p></div> + above, § <a href="#If_an_external_affair2of135">135, p. 190, No. 2</a>.</p></div> <div class="footnote"><p><a name="Footnote_899_899" id="Footnote_899_899"></a><a href="#FNanchor_899_899"><span class="label">[899]</span></a> See R.G. II. pp. 457-463. Details concerning intervention -have been given above, § 134-138; see also - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#In50">vol. II. § 50.</a></p></div> +have been given above, § 134-138; see also + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#In50">vol. II. § 50.</a></p></div> <div class="sidenote"><p>Accession.</p></div> -<p>§ 532. <a name="Of_accession_there_are_two_kinds532" id="Of_accession_there_are_two_kinds532"></a>Of accession there are two kinds. Accession +<p>§ 532. <a name="Of_accession_there_are_two_kinds532" id="Of_accession_there_are_two_kinds532"></a>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<span class="pagenum"><a name="Page_569" id="Page_569">[Pg 569]</a></span> party to the treaty with all rights and duties arising @@ -28828,11 +28787,11 @@ other parties, for the former is a guarantor only, whereas the latter are directly affected by the treaty.</p> <div class="footnote"><p><a name="Footnote_900_900" id="Footnote_900_900"></a><a href="#FNanchor_900_900"><span class="label">[900]</span></a> See - above, § <a href="#The_best528">528</a>.</p></div> + above, § <a href="#The_best528">528</a>.</p></div> <div class="sidenote"><p>Adhesion.</p></div> -<p>§ 533. Adhesion is defined as such entrance of a third +<p>§ 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. @@ -28856,23 +28815,23 @@ Powers, although accession is meant.<span class="pagenum"><a name="Page_570" id= <span class="smaller">EXPIRATION AND DISSOLUTION OF TREATIES</span> </h4> -<p class="indh1">Vattel, II. §§ 198-205—Hall, § 116—Westlake, I. pp. 284-286—Lawrence, -§ 134—Halleck, I. pp. 293-296—Taylor, §§ 394-399—Wharton, II. § 137<span class="smcap">A</span>—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, +<p class="indh1">Vattel, II. §§ 198-205—Hall, § 116—Westlake, I. pp. 284-286—Lawrence, +§ 134—Halleck, I. pp. 293-296—Taylor, §§ 394-399—Wharton, II. § 137<span class="smcap">A</span>—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 <i>clausula rebus sic stantibus</i>, &c." (1907)—Kaufmann, -"Das Wesen des Völkerrechts und die <i>clausula rebus sic stantibus</i>" +"Ueber die völkerrechtliche <i>clausula rebus sic stantibus</i>, &c." (1907)—Kaufmann, +"Das Wesen des Völkerrechts und die <i>clausula rebus sic stantibus</i>" (1911)—Bonucci in Z.V. IV. (1910), pp. 449-471.</p> <div class="sidenote"><p>Expiration and Dissolution in Contradistinction to Fulfilment.</p></div> -<p>§ 534. <a name="The_binding_force_of534" id="The_binding_force_of534"></a>The binding force of treaties may terminate +<p>§ 534. <a name="The_binding_force_of534" id="The_binding_force_of534"></a>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.<a name="FNanchor_901_901" id="FNanchor_901_901"></a><a href="#Footnote_901_901" class="fnanchor">[901]</a> The grounds of expiration of treaties are, @@ -28891,12 +28850,12 @@ although it is now of historical interest only.</p> 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, §§ <a href="#A_treaty_although540">540</a>-544 + below, §§ <a href="#A_treaty_although540">540</a>-544 and <a href="#A_treaty_although_it_has545">545</a>-549.</p></div> <div class="sidenote"><p>Expiration through Expiration of Time.</p></div> -<p>§ 535. All such treaties as are concluded for a certain +<p>§ 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 @@ -28911,7 +28870,7 @@ parties gives notice in due time.</p> <div class="sidenote"><p>Expiration through Resolutive Condition.</p></div> -<p>§ 536. Different from time-expiring treaties are such +<p>§ 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. @@ -28919,7 +28878,7 @@ As soon as these circumstances arise, the treaties expire.</p> <div class="sidenote"><p>Mutual Consent.</p></div> -<p>§ 537. A treaty, although concluded for ever or for +<p>§ 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 @@ -28941,7 +28900,7 @@ of the renunciation is necessary.</p> <div class="sidenote"><p>Withdrawal by Notice.</p></div> -<p>§ 538. Treaties, provided they are not such as are +<p>§ 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 @@ -28978,7 +28937,7 @@ intended to create an everlasting condition of things.</p> <div class="sidenote"><p>Vital Change of Circumstances.</p></div> -<p>§ 539. <a name="Although_as_just_stated539" id="Although_as_just_stated539"></a>Although, as just stated, treaties concluded +<p>§ 539. <a name="Although_as_just_stated539" id="Although_as_just_stated539"></a>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, @@ -29020,8 +28979,8 @@ should nevertheless be notifiable.</p> <div class="footnote"><p><a name="Footnote_902_902" id="Footnote_902_902"></a><a href="#FNanchor_902_902"><span class="label">[902]</span></a> 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 +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 <i>clausula</i> altogether, but can @@ -29093,8 +29052,8 @@ with the wishes of Russia and abolished the neutralisation of the Black Sea, it adopted in a protocol<a name="FNanchor_903_903" id="FNanchor_903_903"></a><a href="#Footnote_903_903" class="fnanchor">[903]</a> 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 +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."</p> @@ -29121,7 +29080,7 @@ of London of 1871 has become doubtful again.</p> Rolin-Jaequemyns in R.I. XIX. (1887), pp. 37-49.</p></div> <div class="footnote"><p><a name="Footnote_905_905" id="Footnote_905_905"></a><a href="#FNanchor_905_905"><span class="label">[905]</span></a> See - above, § <a href="#Soon_after_the_Hague50">50</a>, p. 76; Martens, N.R.G. 3rd Ser. II. p. + above, § <a href="#Soon_after_the_Hague50">50</a>, 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 @@ -29141,11 +29100,11 @@ conference, consented to the abrogation of the Treaty of Berlin.</p></div> </h4> -<p class="indh1">See the literature quoted at the commencement of § <a href="#The_binding_force_of534">534</a>.</p> +<p class="indh1">See the literature quoted at the commencement of § <a href="#The_binding_force_of534">534</a>.</p> <div class="sidenote"><p>Grounds of Voidance.</p></div> -<p>§ 540. <a name="A_treaty_although540" id="A_treaty_although540"></a>A treaty, although it has neither expired +<p>§ 540. <a name="A_treaty_although540" id="A_treaty_although540"></a>A treaty, although it has neither expired nor been dissolved, may nevertheless lose its binding force by becoming void.<a name="FNanchor_906_906" id="FNanchor_906_906"></a><a href="#Footnote_906_906" class="fnanchor">[906]</a> And such voidance may have different grounds—namely, extinction of one of @@ -29156,23 +29115,23 @@ was concerned in a treaty.</p> <div class="footnote"><p><a name="Footnote_906_906" id="Footnote_906_906"></a><a href="#FNanchor_906_906"><span class="label">[906]</span></a> But such voidance must not be confounded with the voidance of a treaty from its very beginning; see - above, § <a href="#Page_501">501</a>.</p></div> + above, § <a href="#Page_501">501</a>.</p></div> <div class="sidenote"><p>Extinction of one of the two Contracting Parties.</p></div> -<p>§ 541. <a name="All_treaties541" id="All_treaties541"></a>All treaties concluded between two States +<p>§ 541. <a name="All_treaties541" id="All_treaties541"></a>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 (§ <a href="#When_a_State_merges82">82</a>), but many treaties do not. On<span class="pagenum"><a name="Page_577" id="Page_577">[Pg 577]</a></span> +shown above (§ <a href="#When_a_State_merges82">82</a>), but many treaties do not. On<span class="pagenum"><a name="Page_577" id="Page_577">[Pg 577]</a></span> this ground all political treaties, such as treaties of alliance, guarantee, neutrality, and the like, become void.</p> <div class="sidenote"><p>Impossibility of Execution.</p></div> -<p>§ 542. <a name="All_treaties_whose542" id="All_treaties_whose542"></a>All treaties whose execution becomes impossible +<p>§ 542. <a name="All_treaties_whose542" id="All_treaties_whose542"></a>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 @@ -29184,14 +29143,14 @@ execution may be temporary only, and that then the treaty is not void but merely suspended.</p> <div class="footnote"><p><a name="Footnote_907_907" id="Footnote_907_907"></a><a href="#FNanchor_907_907"><span class="label">[907]</span></a> See - also above, § <a href="#As_treaties_are_binding521">521</a>, where the case is mentioned that a + also above, § <a href="#As_treaties_are_binding521">521</a>, 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.</p></div> <div class="sidenote"><p>Realisation of Purpose of Treaty other than by Fulfilment.</p></div> -<p>§ 543. All treaties whose purpose is realised otherwise +<p>§ 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 @@ -29202,7 +29161,7 @@ third State with regard to the matter.</p> <div class="sidenote"><p>Extinction of such Object as was concerned in a Treaty.</p></div> -<p>§ 544. All treaties whose obligations concern a certain +<p>§ 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 @@ -29219,11 +29178,11 @@ merges in another.</p> </h4> -<p class="indh1">See the literature quoted at the commencement of § <a href="#The_binding_force_of534">534</a>.</p> +<p class="indh1">See the literature quoted at the commencement of § <a href="#The_binding_force_of534">534</a>.</p> <div class="sidenote"><p>Grounds of Cancellation.</p></div> -<p>§ 545. <a name="A_treaty_although_it_has545" id="A_treaty_although_it_has545"></a>A treaty, although it has neither expired, +<p>§ 545. <a name="A_treaty_although_it_has545" id="A_treaty_although_it_has545"></a>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 @@ -29233,7 +29192,7 @@ subsequent change of status of one of them, and war.</p> <div class="sidenote"><p>Inconsistency with subsequent International Law.</p></div> -<p>§ 546. Just as treaties have no binding force when +<p>§ 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 @@ -29252,23 +29211,23 @@ the other contracting party from these obligations.<a name="FNanchor_909_909" id <div class="footnote"><p><a name="Footnote_908_908" id="Footnote_908_908"></a><a href="#FNanchor_908_908"><span class="label">[908]</span></a> 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 +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 +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 <i>ipso facto</i> cancelled by the Declaration.</p></div> <div class="footnote"><p><a name="Footnote_909_909" id="Footnote_909_909"></a><a href="#FNanchor_909_909"><span class="label">[909]</span></a> 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, § <a href="#If_the_Law21">21</a>. See The Cherokee Tobacco, 11 +doubt, as has been pointed out above, § <a href="#If_the_Law21">21</a>. See The Cherokee Tobacco, 11 Wall 616; Whitney <i>v.</i> Robertson, 124 United States 190; Botiller <i>v.</i> -Dominguez, 130 United States 238. See also Moore, V. § 774.<span class="pagenum"><a name="Page_579" id="Page_579">[Pg 579]</a></span></p></div> +Dominguez, 130 United States 238. See also Moore, V. § 774.<span class="pagenum"><a name="Page_579" id="Page_579">[Pg 579]</a></span></p></div> <div class="sidenote"><p>Violation by one of the Contracting Parties.</p></div> -<p>§ 547. <a name="Vi547" id="Vi547"></a>Violation of a treaty by one of the contracting +<p>§ 547. <a name="Vi547" id="Vi547"></a>Violation of a treaty by one of the contracting States does not <i>ipso facto</i> 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 @@ -29302,7 +29261,7 @@ a cancellation nor reserves the right of cancellation.</p> <div class="sidenote"><p>Subsequent Change of Status of one of the Contracting Parties.</p></div> -<p>§ 548. <a name="A_cause_which548" id="A_cause_which548"></a>A cause which <i>ipso facto</i> cancels treaties is +<p>§ 548. <a name="A_cause_which548" id="A_cause_which548"></a>A cause which <i>ipso facto</i> 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 @@ -29330,16 +29289,16 @@ becoming members of the Federal State retain their binding force.</p> <div class="footnote"><p><a name="Footnote_910_910" id="Footnote_910_910"></a><a href="#FNanchor_910_910"><span class="label">[910]</span></a> See - Moore, V. § 773, and - above, <a href="#Footnote_112_112">§ 82, p. 128, note 1</a>, - and § <a href="#As_treaties_are_binding521">521</a>.</p></div> + Moore, V. § 773, and + above, <a href="#Footnote_112_112">§ 82, p. 128, note 1</a>, + and § <a href="#As_treaties_are_binding521">521</a>.</p></div> <div class="sidenote"><p>War.</p></div> -<p>§ 549. How far war is a general ground of cancellation +<p>§ 549. How far war is a general ground of cancellation of treaties is not quite settled. Details on this point will be given - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_doctrine_was99">vol. II. § 99</a>.</p> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#The_doctrine_was99">vol. II. § 99</a>.</p> @@ -29349,15 +29308,15 @@ point will be given </h4> -<p class="indh1">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. +<p class="indh1">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.</p> <div class="sidenote"><p>Renewal of Treaties.</p></div> -<p>§ 550. Renewal of treaties is the term for the prolongation +<p>§ 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<span class="pagenum"><a name="Page_581" id="Page_581">[Pg 581]</a></span> can take place through a new treaty, and the old treaty @@ -29370,7 +29329,7 @@ given notice.</p> <div class="sidenote"><p>Reconfirmation.</p></div> -<p>§ 551. Reconfirmation is the term for the express +<p>§ 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 @@ -29390,7 +29349,7 @@ contracting parties only.</p> <div class="sidenote"><p>Redintegration.</p></div> -<p>§ 552. Treaties which have lost their binding force +<p>§ 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 @@ -29414,18 +29373,18 @@ any instance of such tacit redintegration.</p> <span class="smaller">INTERPRETATION OF TREATIES</span> </h4> -<p class="indh1">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. +<p class="indh1">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.</p> <div class="sidenote"><p>Authentic Interpretation, and the Compromise Clause.</p></div> -<p>§ 553. <a name="Ne553" id="Ne553"></a>Neither customary nor conventional rules of +<p>§ 553. <a name="Ne553" id="Ne553"></a>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 @@ -29461,13 +29420,13 @@ in their treaties.</p> <div class="sidenote"><p>Rules of Interpretation which recommend themselves.</p></div> -<p>§ 554. <a name="It554" id="It554"></a>It is of importance to enumerate some rules +<p>§ 554. <a name="It554" id="It554"></a>It is of importance to enumerate some rules of interpretation<a name="FNanchor_911_911" id="FNanchor_911_911"></a><a href="#Footnote_911_911" class="fnanchor">[911]</a> which recommend themselves on account of their suitability.</p> <div class="footnote"><p><a name="Footnote_911_911" id="Footnote_911_911"></a><a href="#FNanchor_911_911"><span class="label">[911]</span></a> 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.</p></div> +with in an admirable way by Phillimore, II. §§ 64-95; see also Moore, V. +§ 763, and Wharton, II. § 133.</p></div> <p>(1) All treaties must be interpreted according to their reasonable in contradistinction to their literal @@ -29561,7 +29520,7 @@ clause<a name="FNanchor_912_912" id="FNanchor_912_912"></a><a href="#Footnote_91 States attribute to this clause must prevail.</p> <div class="footnote"><p><a name="Footnote_912_912" id="Footnote_912_912"></a><a href="#FNanchor_912_912"><span class="label">[912]</span></a> See - below, § <a href="#Most_of_the_commercial580">580</a>.</p></div> + below, § <a href="#Most_of_the_commercial580">580</a>.</p></div> <p>(10) If the meaning of a stipulation is ambiguous and one of the contracting parties, at a time before a @@ -29624,11 +29583,11 @@ text of the language of the other party.<span class="pagenum"><a name="Page_587" <div class="sidenote"><p>Important Law-making Treaties a product of the Nineteenth Century.</p></div> -<p>§ 555. <a name="La555" id="La555"></a>Law-making treaties<a name="FNanchor_913_913" id="FNanchor_913_913"></a><a href="#Footnote_913_913" class="fnanchor">[913]</a> have been concluded +<p>§ 555. <a name="La555" id="La555"></a>Law-making treaties<a name="FNanchor_913_913" id="FNanchor_913_913"></a><a href="#Footnote_913_913" class="fnanchor">[913]</a> 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 +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, @@ -29649,12 +29608,12 @@ many contain other stipulations besides those which are law-making.</p> <div class="footnote"><p><a name="Footnote_913_913" id="Footnote_913_913"></a><a href="#FNanchor_913_913"><span class="label">[913]</span></a> Concerning the conception of law-making treaties, see - above, §§ <a href="#Treaties_are18">18</a> + above, §§ <a href="#Treaties_are18">18</a> and <a href="#These_important_functions492">492</a>.<span class="pagenum"><a name="Page_588" id="Page_588">[Pg 588]</a></span></p></div> <div class="sidenote"><p>Final Act of the Vienna Congress.</p></div> -<p>§ 556. <a name="The_Final_Act556" id="The_Final_Act556"></a>The Final Act of the Vienna Congress,<a name="FNanchor_914_914" id="FNanchor_914_914"></a><a href="#Footnote_914_914" class="fnanchor">[914]</a> signed +<p>§ 556. <a name="The_Final_Act556" id="The_Final_Act556"></a>The Final Act of the Vienna Congress,<a name="FNanchor_914_914" id="FNanchor_914_914"></a><a href="#Footnote_914_914" class="fnanchor">[914]</a> 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 @@ -29667,37 +29626,37 @@ fourthly, the different classes of diplomatic envoys (article 118, No. 16).</p> <div class="footnote"><p><a name="Footnote_914_914" id="Footnote_914_914"></a><a href="#FNanchor_914_914"><span class="label">[914]</span></a> Martens, N.R. II. p. 379. See - Angeberg, "Le congrès de -Vienne et les traités de 1815" (4 vols., 1863).</p></div> + Angeberg, "Le congrès de +Vienne et les traités de 1815" (4 vols., 1863).</p></div> <div class="sidenote"><p>Protocol of the Congress of Aix-la-Chapelle.</p></div> -<p>§ 557. The Protocol of November 21 of the Congress +<p>§ 557. The Protocol of November 21 of the Congress of Aix-la-Chapelle,<a name="FNanchor_915_915" id="FNanchor_915_915"></a><a href="#Footnote_915_915" class="fnanchor">[915]</a> 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.</p> +Chargés d'Affaires.</p> <div class="footnote"><p><a name="Footnote_915_915" id="Footnote_915_915"></a><a href="#FNanchor_915_915"><span class="label">[915]</span></a> Martens, N.R. IV. p. 648. See Angeberg, op. cit.</p></div> <div class="sidenote"><p>Treaty of London of 1831.</p></div> -<p>§ 558. The Treaty of London<a name="FNanchor_916_916" id="FNanchor_916_916"></a><a href="#Footnote_916_916" class="fnanchor">[916]</a> of November 15, 1831, +<p>§ 558. The Treaty of London<a name="FNanchor_916_916" id="FNanchor_916_916"></a><a href="#Footnote_916_916" class="fnanchor">[916]</a> 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.</p> <div class="footnote"><p><a name="Footnote_916_916" id="Footnote_916_916"></a><a href="#FNanchor_916_916"><span class="label">[916]</span></a> Martens, N.R. XI. p. 390. See - Descamps, "La neutralité de + Descamps, "La neutralité de la Belgique" (1902).</p></div> <div class="sidenote"><p>Declaration of Paris.</p></div> -<p>§ 559. <a name="Th559" id="Th559"></a>The Declaration of Paris<a name="FNanchor_917_917" id="FNanchor_917_917"></a><a href="#Footnote_917_917" class="fnanchor">[917]</a> of April 13, 1856, +<p>§ 559. <a name="Th559" id="Th559"></a>The Declaration of Paris<a name="FNanchor_917_917" id="FNanchor_917_917"></a><a href="#Footnote_917_917" class="fnanchor">[917]</a> 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 @@ -29719,7 +29678,7 @@ Spain and Mexico in 1907.</p> <div class="sidenote"><p>Geneva Convention.</p></div> -<p>§ 560. <a name="Th560" id="Th560"></a>The Geneva Convention<a name="FNanchor_918_918" id="FNanchor_918_918"></a><a href="#Footnote_918_918" class="fnanchor">[918]</a> of August 22, 1864, +<p>§ 560. <a name="Th560" id="Th560"></a>The Geneva Convention<a name="FNanchor_918_918" id="FNanchor_918_918"></a><a href="#Footnote_918_918" class="fnanchor">[918]</a> 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 @@ -29746,7 +29705,7 @@ Convention.</p> <div class="footnote"><p><a name="Footnote_918_918" id="Footnote_918_918"></a><a href="#FNanchor_918_918"><span class="label">[918]</span></a> Martens, N.R.G. XVIII. p. 607. See Lueder, "Die Genfer -Convention" (1876), and Münzel, "Untersuchungen über die Genfer +Convention" (1876), and Münzel, "Untersuchungen über die Genfer Convention" (1901).</p></div> <div class="footnote"><p><a name="Footnote_919_919" id="Footnote_919_919"></a><a href="#FNanchor_919_919"><span class="label">[919]</span></a> Martens, N.R.G. XVIII. p. 612.</p></div> @@ -29755,7 +29714,7 @@ Convention" (1901).</p></div> <div class="sidenote"><p>Treaty of London of 1867.</p></div> -<p>§ 561. The Treaty of London<a name="FNanchor_921_921" id="FNanchor_921_921"></a><a href="#Footnote_921_921" class="fnanchor">[921]</a> of May 11, 1867, +<p>§ 561. The Treaty of London<a name="FNanchor_921_921" id="FNanchor_921_921"></a><a href="#Footnote_921_921" class="fnanchor">[921]</a> of May 11, 1867, signed by Great Britain, Austria, Belgium, France, Holland, Italy, Prussia, and Russia, comprises in its<span class="pagenum"><a name="Page_590" id="Page_590">[Pg 590]</a></span> article 2 the important law-making stipulation concerning @@ -29767,7 +29726,7 @@ Neutre" (1900).</p></div> <div class="sidenote"><p>Declaration of St. Petersburg.</p></div> -<p>§ 562. The Declaration of St. Petersburg<a name="FNanchor_922_922" id="FNanchor_922_922"></a><a href="#Footnote_922_922" class="fnanchor">[922]</a> of November +<p>§ 562. The Declaration of St. Petersburg<a name="FNanchor_922_922" id="FNanchor_922_922"></a><a href="#Footnote_922_922" class="fnanchor">[922]</a> of November 29, 1868, signed by Great Britain, Austria-Hungary, Belgium, Denmark, France, Greece, Holland, Italy, Persia, Portugal, Prussia and other German @@ -29782,7 +29741,7 @@ use of in war.</p> <div class="sidenote"><p>Treaty of Berlin of 1878.</p></div> -<p>§ 563. The Treaty of Berlin<a name="FNanchor_923_923" id="FNanchor_923_923"></a><a href="#Footnote_923_923" class="fnanchor">[923]</a> of July 13, 1878, +<p>§ 563. The Treaty of Berlin<a name="FNanchor_923_923" id="FNanchor_923_923"></a><a href="#Footnote_923_923" class="fnanchor">[923]</a> 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 @@ -29797,7 +29756,7 @@ congresso di Berlino" (1878).</p></div> <div class="sidenote"><p>General Act of the Congo Conference.</p></div> -<p>§ 564. The General Act of the Congo Conference<a name="FNanchor_924_924" id="FNanchor_924_924"></a><a href="#Footnote_924_924" class="fnanchor">[924]</a> +<p>§ 564. The General Act of the Congo Conference<a name="FNanchor_924_924" id="FNanchor_924_924"></a><a href="#Footnote_924_924" class="fnanchor">[924]</a> of Berlin of February 26, 1885, signed by Great Britain, Austria-Hungary, Belgium, Denmark, France, Germany, Holland, Italy, Portugal, Russia, Spain, Sweden-Norway, @@ -29817,7 +29776,7 @@ afrikanische Conferenz und der Congostaat" (1885).<span class="pagenum"><a name= <div class="sidenote"><p>Treaty of Constantinople of 1888.</p></div> -<p>§ 565. The Treaty of Constantinople<a name="FNanchor_925_925" id="FNanchor_925_925"></a><a href="#Footnote_925_925" class="fnanchor">[925]</a> of October 29, +<p>§ 565. The Treaty of Constantinople<a name="FNanchor_925_925" id="FNanchor_925_925"></a><a href="#Footnote_925_925" class="fnanchor">[925]</a> 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 @@ -29825,11 +29784,11 @@ neutralisation of the Suez Canal and the freedom of navigation thereon for vessels of all nations.</p> <div class="footnote"><p><a name="Footnote_925_925" id="Footnote_925_925"></a><a href="#FNanchor_925_925"><span class="label">[925]</span></a> Martens, N.R.G. 2nd Ser. XV. p. 557. See - above, § <a href="#The_most_important183">183</a>.</p></div> + above, § <a href="#The_most_important183">183</a>.</p></div> <div class="sidenote"><p>General Act of the Brussels Anti-Slavery Conference.</p></div> -<p>§ 566. The General Act of the Brussels Anti-Slavery +<p>§ 566. The General Act of the Brussels Anti-Slavery Conference,<a name="FNanchor_926_926" id="FNanchor_926_926"></a><a href="#Footnote_926_926" class="fnanchor">[926]</a> signed on July 2, 1890, by Great Britain, Austria-Hungary, Belgium, the Congo Free State, Denmark, France,<a name="FNanchor_927_927" id="FNanchor_927_927"></a><a href="#Footnote_927_927" class="fnanchor">[927]</a> Germany, Holland, Italy, Persia, @@ -29846,7 +29805,7 @@ Congo Free State, France, Italy, Holland, Portugal, Russia, and Sweden.</p> <div class="footnote"><p><a name="Footnote_926_926" id="Footnote_926_926"></a><a href="#FNanchor_926_926"><span class="label">[926]</span></a> Martens, N.R.G. 2nd Ser. XVI. p. 3, and XXV. p. 543. See - Lentner, "Der afrikanische Sklavenhandel und die Brüsseler Conferenzen" + Lentner, "Der afrikanische Sklavenhandel und die Brüsseler Conferenzen" (1891).</p></div> <div class="footnote"><p><a name="Footnote_927_927" id="Footnote_927_927"></a><a href="#FNanchor_927_927"><span class="label">[927]</span></a> But France only ratified this General Act with the @@ -29856,7 +29815,7 @@ exclusion of certain articles.</p></div> <div class="sidenote"><p>Two Declarations of the First Hague Peace Conference.</p></div> -<p>§ 567. The Final Act of the Hague Peace Conference<a name="FNanchor_929_929" id="FNanchor_929_929"></a><a href="#Footnote_929_929" class="fnanchor">[929]</a> +<p>§ 567. The Final Act of the Hague Peace Conference<a name="FNanchor_929_929" id="FNanchor_929_929"></a><a href="#Footnote_929_929" class="fnanchor">[929]</a> of July 29, 1899, was a pure law-making treaty comprising three separate conventions—namely, a convention for the peaceful adjustment of international differences, @@ -29879,12 +29838,12 @@ declarations except the United States of America.</p> <div class="footnote"><p><a name="Footnote_929_929" id="Footnote_929_929"></a><a href="#FNanchor_929_929"><span class="label">[929]</span></a> Martens, N.R.G. 2nd Ser. XXVI. p. 920. See Holls, "The -Peace Conference at the Hague" (1900), and Mérignhac, "La Conférence +Peace Conference at the Hague" (1900), and Mérignhac, "La Conférence internationale de la Paix" (1900).</p></div> <div class="sidenote"><p>Treaty of Washington of 1901.</p></div> -<p>§ 568. <a name="The_so-called_Hay-Pauncefote568" id="The_so-called_Hay-Pauncefote568"></a>The so-called Hay-Pauncefote Treaty of +<p>§ 568. <a name="The_so-called_Hay-Pauncefote568" id="The_so-called_Hay-Pauncefote568"></a>The so-called Hay-Pauncefote Treaty of Washington<a name="FNanchor_930_930" id="FNanchor_930_930"></a><a href="#Footnote_930_930" class="fnanchor">[930]</a> between Great Britain and the United States of America, signed November 18, 1901, although law-making between the parties only, is nevertheless @@ -29902,12 +29861,12 @@ 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, <a href="#Footnote_358_358">p. 267, note 2</a>, and - below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Although_the_Open_Sea72">vol. II. § 72</a>.</p></div> + below, <a href="http://www.gutenberg.org/files/41047/41047-h/41047-h.htm#Although_the_Open_Sea72">vol. II. § 72</a>.</p></div> <div class="sidenote"><p>Conventions and Declaration of Second Hague Peace Conference.</p></div> -<p>§ 568<i>a</i>. <a name="The_Final_Act568a" id="The_Final_Act568a"></a>The Final Act of the Second Hague Peace +<p>§ 568<i>a</i>. <a name="The_Final_Act568a" id="The_Final_Act568a"></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<a name="FNanchor_932_932" id="FNanchor_932_932"></a><a href="#Footnote_932_932" class="fnanchor">[932]</a> and a declaration:—</p> @@ -30014,7 +29973,7 @@ later.</p> <div class="sidenote"><p>The Declaration of London.</p></div> -<p>§ 568<i>b</i>. <a name="The_Declaration568b" id="The_Declaration568b"></a>The Declaration of London<a name="FNanchor_933_933" id="FNanchor_933_933"></a><a href="#Footnote_933_933" class="fnanchor">[933]</a> of February +<p>§ 568<i>b</i>. <a name="The_Declaration568b" id="The_Declaration568b"></a>The Declaration of London<a name="FNanchor_933_933" id="FNanchor_933_933"></a><a href="#Footnote_933_933" class="fnanchor">[933]</a> 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 @@ -30044,18 +30003,18 @@ States concerned will in time accede to the Declaration of London.</p></div> <span class="smaller">ALLIANCES</span> </h4> -<p class="indh1">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, +<p class="indh1">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).</p> +§§ 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).</p> <div class="sidenote"><p>Conception of Alliances.</p></div> -<p>§ 569. <a name="Alliances_in_the_strict569" id="Alliances_in_the_strict569"></a>Alliances in the strict sense of the term are +<p>§ 569. <a name="Alliances_in_the_strict569" id="Alliances_in_the_strict569"></a>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 @@ -30165,7 +30124,7 @@ Done in duplicate at London, the 13th day of July 1911.<span class="pagenum"><a <div class="sidenote"><p>Parties to Alliance.</p></div> -<p>§ 570. <a name="Subjects_of_alliances570" id="Subjects_of_alliances570"></a>Subjects of alliances are said to be full-Sovereign +<p>§ 570. <a name="Subjects_of_alliances570" id="Subjects_of_alliances570"></a>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, @@ -30192,7 +30151,7 @@ involve a breach of its neutrality.</p> <div class="sidenote"><p>Different kinds of Alliances.</p></div> -<p>§ 571. As already mentioned, an alliance may be<span class="pagenum"><a name="Page_598" id="Page_598">[Pg 598]</a></span> +<p>§ 571. As already mentioned, an alliance may be<span class="pagenum"><a name="Page_598" id="Page_598">[Pg 598]</a></span> 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 @@ -30204,11 +30163,11 @@ regards offensive alliances, it must be emphasised that they are valid only when their object is not immoral.<a name="FNanchor_938_938" id="FNanchor_938_938"></a><a href="#Footnote_938_938" class="fnanchor">[938]</a></p> <div class="footnote"><p><a name="Footnote_938_938" id="Footnote_938_938"></a><a href="#FNanchor_938_938"><span class="label">[938]</span></a> See - above, § <a href="#It_is_a_customarily_recognised505">505</a>.</p></div> + above, § <a href="#It_is_a_customarily_recognised505">505</a>.</p></div> <div class="sidenote"><p>Conditions of Alliances.</p></div> -<p>§ 572. Alliances may contain all sorts of conditions. +<p>§ 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 @@ -30238,11 +30197,11 @@ territory in case of war against Turkey was really a treaty of alliance.</p> <div class="footnote"><p><a name="Footnote_939_939" id="Footnote_939_939"></a><a href="#FNanchor_939_939"><span class="label">[939]</span></a> See - above, § <a href="#Subjects_of_alliances570">570</a>.</p></div> + above, § <a href="#Subjects_of_alliances570">570</a>.</p></div> <div class="sidenote"><p><i>Casus Fœderis.</i></p></div> -<p>§ 573. <i><a name="Casus573" id="Casus573"></a>Casus fœderis</i> is the event upon the occurrence +<p>§ 573. <i><a name="Casus573" id="Casus573"></a>Casus fœderis</i> 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 <i>casus fœderis</i> occurs @@ -30258,7 +30217,7 @@ fœderis</i>.</p> <p>That the <i>casus fœderis</i> 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, § <a href="#According_to_the_principle522">522</a>.</p> +State, has been pointed out above, § <a href="#According_to_the_principle522">522</a>.</p> @@ -30268,21 +30227,21 @@ State, has been pointed out above, § <a href="#According_to_the_principle522">52 </h4> -<p class="indh1">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, +<p class="indh1">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 +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).</p> +Allianzverhältnisse nach heutigem Völkerrecht" (1907)—Quabbe, "Die +völkerrechtliche Garantie" (1911).</p> <div class="sidenote"><p>Conception and Object of Guarantee Treaties.</p></div> -<p>§ 574. <a name="Treaties_of_guarantee574" id="Treaties_of_guarantee574"></a>Treaties of guarantee are conventions by +<p>§ 574. <a name="Treaties_of_guarantee574" id="Treaties_of_guarantee574"></a>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 @@ -30309,7 +30268,7 @@ treaties. See Munro, "England's Treaties of Guarantee," in <i>The Law Magazine and Review</i>, VI. (1881), pp. 215-238.</p></div> <div class="footnote"><p><a name="Footnote_941_941" id="Footnote_941_941"></a><a href="#FNanchor_941_941"><span class="label">[941]</span></a> See - above, § <a href="#A_neutralised_State95">95</a>.</p></div> + above, § <a href="#A_neutralised_State95">95</a>.</p></div> <div class="footnote"><p><a name="Footnote_942_942" id="Footnote_942_942"></a><a href="#FNanchor_942_942"><span class="label">[942]</span></a> Thus Great Britain, France, and Russia have guaranteed, by the Treaty with Denmark of July 13, 1863, the independence (but also the @@ -30327,7 +30286,7 @@ any foreign Power.</p></div> <div class="sidenote"><p>Effect of Treaties of Guarantee.</p></div> -<p>§ 575. The effect of guarantee treaties is the creation +<p>§ 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 @@ -30371,11 +30330,11 @@ would as a rule seem to extend to the early years only of its existence while the original conditions still obtain.</p> <div class="footnote"><p><a name="Footnote_944_944" id="Footnote_944_944"></a><a href="#FNanchor_944_944"><span class="label">[944]</span></a> See - above, § <a href="#Although_as_just_stated539">539</a>.</p></div> + above, § <a href="#Although_as_just_stated539">539</a>.</p></div> <div class="sidenote"><p>Effect of Collective Guarantee.</p></div> -<p>§ 576. In contradistinction to treaties constituting +<p>§ 576. In contradistinction to treaties constituting a guarantee on the part of one or more States severally, the effect of treaties constituting a <i>collective</i> guarantee on the part of several States requires special consideration. @@ -30407,7 +30366,7 @@ them would not accrue to the minority.</p> <div class="footnote"><p><a name="Footnote_945_945" id="Footnote_945_945"></a><a href="#FNanchor_945_945"><span class="label">[945]</span></a> Hansard, vol. 183, p. 150.</p></div> <div class="footnote"><p><a name="Footnote_946_946" id="Footnote_946_946"></a><a href="#FNanchor_946_946"><span class="label">[946]</span></a> See - Hall, § 113; Bluntschli, § + Hall, § 113; Bluntschli, § 440; and Quabbe, op. cit. pp. 149-159.</p></div> <div class="footnote"><p><a name="Footnote_947_947" id="Footnote_947_947"></a><a href="#FNanchor_947_947"><span class="label">[947]</span></a> See @@ -30422,7 +30381,7 @@ the object of guarantee.</p> <div class="sidenote"><p>Pseudo-Guarantees.</p></div> -<p>§ 576<i>a</i>. <a name="Different_from_real576a" id="Different_from_real576a"></a>Different from real Guarantee Treaties are +<p>§ 576<i>a</i>. <a name="Different_from_real576a" id="Different_from_real576a"></a>Different from real Guarantee Treaties are such treaties as declare the policy of the parties with regard to the maintenance of their territorial <i>status quo</i>. Whereas treaties guaranteeing the maintenance of the @@ -30501,7 +30460,7 @@ North Sea and the Baltic real Guarantee Treaties.</p></div> <div class="sidenote"><p>Treaties of Protection.</p></div> -<p>§ 577. <a name="Different_from_guarantee577" id="Different_from_guarantee577"></a>Different from guarantee treaties are treaties +<p>§ 577. <a name="Different_from_guarantee577" id="Different_from_guarantee577"></a>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 @@ -30510,7 +30469,7 @@ whatever. A treaty of protection must, however, not be confounded with a treaty of protectorate.<a name="FNanchor_951_951" id="FNanchor_951_951"></a><a href="#Footnote_951_951" class="fnanchor">[951]</a></p> <div class="footnote"><p><a name="Footnote_951_951" id="Footnote_951_951"></a><a href="#FNanchor_951_951"><span class="label">[951]</span></a> See - above, § <a href="#Legally_and_materially92">92</a>.<span class="pagenum"><a name="Page_605" id="Page_605">[Pg 605]</a></span></p></div> + above, § <a href="#Legally_and_materially92">92</a>.<span class="pagenum"><a name="Page_605" id="Page_605">[Pg 605]</a></span></p></div> <h4> @@ -30518,18 +30477,18 @@ be confounded with a treaty of protectorate.<a name="FNanchor_951_951" id="FNanc <span class="smaller">COMMERCIAL TREATIES</span> </h4> -<p class="indh1">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. +<p class="indh1">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" +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 +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. @@ -30542,7 +30501,7 @@ Law Quarterly Review</i>, XXIV. (1908), pp. 328-334. <div class="sidenote"><p>Commercial Treaties in General.</p></div> -<p>§ 578. <a name="Commercial_treaties578" id="Commercial_treaties578"></a>Commercial treaties are treaties concerning +<p>§ 578. <a name="Commercial_treaties578" id="Commercial_treaties578"></a>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, @@ -30579,7 +30538,7 @@ trade and of the most-favoured-nation clause.</p> <div class="sidenote"><p>Meaning of Coasting Trade in Commercial Treaties.</p></div> -<p>§ 579. <a name="The_meaning_of_the_term579" id="The_meaning_of_the_term579"></a>The meaning of the term coasting-trade<a name="FNanchor_952_952" id="FNanchor_952_952"></a><a href="#Footnote_952_952" class="fnanchor">[952]</a> in +<p>§ 579. <a name="The_meaning_of_the_term579" id="The_meaning_of_the_term579"></a>The meaning of the term coasting-trade<a name="FNanchor_952_952" id="FNanchor_952_952"></a><a href="#Footnote_952_952" class="fnanchor">[952]</a> in commercial treaties must not be confounded with its meaning in International Law generally. The meaning of the term in International Law becomes apparent @@ -30608,7 +30567,7 @@ under certain conditions only.</p> pp. 328-334.</p></div> <div class="footnote"><p><a name="Footnote_953_953" id="Footnote_953_953"></a><a href="#FNanchor_953_953"><span class="label">[953]</span></a> See - above, § <a href="#Theory_and_practice_agree187">187</a>.</p></div> + above, § <a href="#Theory_and_practice_agree187">187</a>.</p></div> <div class="footnote"><p><a name="Footnote_954_954" id="Footnote_954_954"></a><a href="#FNanchor_954_954"><span class="label">[954]</span></a> It must be emphasised that navigation and trade from abroad to several ports of the same coast successively—for instance, from @@ -30716,8 +30675,8 @@ coasting-trade and cabotage would have disappeared.</p> 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: <i>La navigation entre la France et l'Algérie ne -pourra s'effectuer que sous pavillon français</i>. This French statute does +of April 2, 1889, enacts: <i>La navigation entre la France et l'Algérie ne +pourra s'effectuer que sous pavillon français</i>. 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 @@ -30738,12 +30697,12 @@ 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, § <a href="#If_the_Law21">21</a>—the Courts are bound + above, § <a href="#If_the_Law21">21</a>—the Courts are bound to apply their Municipal Law.</p></div> <div class="sidenote"><p>Meaning of most-favoured-nation Clause.</p></div> -<p>§ 580. <a name="Most_of_the_commercial580" id="Most_of_the_commercial580"></a>Most of the commercial treaties of the nineteenth +<p>§ 580. <a name="Most_of_the_commercial580" id="Most_of_the_commercial580"></a>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, @@ -30823,7 +30782,7 @@ common knowledge.<a name="FNanchor_960_960" id="FNanchor_960_960"></a><a href="# Barclay, op. cit. pp. 142 and 159.</p></div> <div class="footnote"><p><a name="Footnote_959_959" id="Footnote_959_959"></a><a href="#FNanchor_959_959"><span class="label">[959]</span></a> See - above, § <a href="#If_it_is_a_matter_of_common_knowledge9of554">554, No. 9</a>.</p></div> + above, § <a href="#If_it_is_a_matter_of_common_knowledge9of554">554, No. 9</a>.</p></div> <div class="footnote"><p><a name="Footnote_960_960" id="Footnote_960_960"></a><a href="#FNanchor_960_960"><span class="label">[960]</span></a> It is not possible in a general treatise on International Law to enter into the details of the history, the different forms, the @@ -30831,7 +30790,7 @@ 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 § <a href="#Commercial_treaties578">578</a>. See also Moore, V. §§ 765-769.</p></div> + above before § <a href="#Commercial_treaties578">578</a>. See also Moore, V. §§ 765-769.</p></div> <p>V</p> @@ -30839,7 +30798,7 @@ quoted <p>UNIONS CONCERNING COMMON NON-POLITICAL INTERESTS</p> -<p class="indh1">Nys, II. pp. 264-270—Mérignhac, II. pp. 694-731—Descamps, "Les offices +<p class="indh1">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. @@ -30848,7 +30807,7 @@ and in A.J. I. pp. 579-623, and III. pp. 1-45.</p> <div class="sidenote"><p>Object of the Unions.</p></div> -<p>§ 581. The development of international intercourse +<p>§ 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 @@ -30891,7 +30850,7 @@ See also Reinsch, "Public International Unions" (1911).</p></div> <div class="sidenote"><p>Post and Telegraphs.</p></div> -<p>§ 582. <a name="Whereas_previously582" id="Whereas_previously582"></a>Whereas previously the States severally +<p>§ 582. <a name="Whereas_previously582" id="Whereas_previously582"></a>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 @@ -30922,8 +30881,8 @@ Union possesses an International Office seated at Berne.<a name="FNanchor_965_96 <div class="footnote"><p><a name="Footnote_965_965" id="Footnote_965_965"></a><a href="#FNanchor_965_965"><span class="label">[965]</span></a> See Fischer, "Post und Telegraphie im Weltverkehr" (1879); -Schröter, "Der Weltpostverein" (1900); Rolland, "De la correspondance -postale et télégraphique dans les relations internationales" (1901).</p></div> +Schröter, "Der Weltpostverein" (1900); Rolland, "De la correspondance +postale et télégraphique dans les relations internationales" (1901).</p></div> <p>(2) <a name="A_general_telegraphic2of582" id="A_general_telegraphic2of582"></a>A general telegraphic convention was concluded at Paris already on May 17, 1865, and in 1868 an @@ -30937,15 +30896,15 @@ but as yet, although called "Universal" Telegraphic Union, only about thirty States are members.</p> <div class="footnote"><p><a name="Footnote_966_966" id="Footnote_966_966"></a><a href="#FNanchor_966_966"><span class="label">[966]</span></a> See - above, § <a href="#In_1868_the_international464">464</a>, and Fischer "Die Telegraphie und das -Völkerrecht" (1876).</p></div> + above, § <a href="#In_1868_the_international464">464</a>, and Fischer "Die Telegraphie und das +Völkerrecht" (1876).</p></div> <div class="footnote"><p><a name="Footnote_967_967" id="Footnote_967_967"></a><a href="#FNanchor_967_967"><span class="label">[967]</span></a> See Martens, N.R.G. 2nd Ser. III. p. 614.</p></div> <p>(3) Concerning the general treaty of March 14, 1884, for the protection of submarine telegraph cables,<a name="FNanchor_968_968" id="FNanchor_968_968"></a><a href="#Footnote_968_968" class="fnanchor">[968]</a> see - above, § <a href="#Th287">287</a>.</p> + above, § <a href="#Th287">287</a>.</p> <div class="footnote"><p><a name="Footnote_968_968" id="Footnote_968_968"></a><a href="#FNanchor_968_968"><span class="label">[968]</span></a> See Martens, N.R.G. 2nd Ser. XI. p. 281.</p></div> @@ -30957,13 +30916,13 @@ Berne which is combined with that of the Universal Telegraph Union.</p> <div class="footnote"><p><a name="Footnote_969_969" id="Footnote_969_969"></a><a href="#FNanchor_969_969"><span class="label">[969]</span></a> See - Martens, N.R.G. 3rd Ser. III. p. 147, and above, § 174, -No. 2, and §§ <a href="#Th287">287</a><i>a</i> and <a href="#To_secure_radio287b">287<i>b</i></a>, where the literature concerned is also + Martens, N.R.G. 3rd Ser. III. p. 147, and above, § 174, +No. 2, and §§ <a href="#Th287">287</a><i>a</i> and <a href="#To_secure_radio287b">287<i>b</i></a>, where the literature concerned is also to be found.</p></div> <div class="sidenote"><p>Transport and Communication.</p></div> -<p>§ 583. Two general conventions are in existence in +<p>§ 583. Two general conventions are in existence in the interest of transport and communication:—</p> <p>(1) <a name="A_general_convent1of583" id="A_general_convent1of583"></a>A general convention<a name="FNanchor_970_970" id="FNanchor_970_970"></a><a href="#Footnote_970_970" class="fnanchor">[970]</a> was concluded on October @@ -30973,7 +30932,7 @@ France, Germany, Holland, Italy, Luxemburg, Russia, and Switzerland—form a Union for this purpose, although the term "Union" is not made use of.<span class="pagenum"><a name="Page_615" id="Page_615">[Pg 615]</a></span> The Union possesses an International Office<a name="FNanchor_971_971" id="FNanchor_971_971"></a><a href="#Footnote_971_971" class="fnanchor">[971]</a> at Berne, -which issues the <i>Zeitschrift für den internationalen +which issues the <i>Zeitschrift für den internationalen Eisenbahn transport</i> and the <i>Bulletin des transports internationaux par chemins de fer</i>. Denmark, Roumania, and Sweden acceded to this Union some time @@ -30983,11 +30942,11 @@ after its conclusion.</p> Martens, N.R.G. 2nd Ser. XIX. p. 289.</p></div> <div class="footnote"><p><a name="Footnote_971_971" id="Footnote_971_971"></a><a href="#FNanchor_971_971"><span class="label">[971]</span></a> See - above, § <a href="#Nine_States470">470</a>, and Kaufmann, "Die mitteleuropäischen -Eisenbahnen und das internationale öffentliche Recht" (1893); Rosenthal, + above, § <a href="#Nine_States470">470</a>, 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).</p></div> +Uebereinkommen über den Eisenbahnfrachtverkehr" (2nd ed. 1903).</p></div> <p>(2) A general convention concerning the International Circulation of Motor Vehicles<a name="FNanchor_972_972" id="FNanchor_972_972"></a><a href="#Footnote_972_972" class="fnanchor">[972]</a> was concluded on @@ -31012,7 +30971,7 @@ Council, 1910.</p></div> <div class="sidenote"><p>Copyright.</p></div> -<p>§ 584. <a name="On_September584" id="On_September584"></a>On September 9, 1886, the Convention of +<p>§ 584. <a name="On_September584" id="On_September584"></a>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<a name="FNanchor_974_974" id="FNanchor_974_974"></a><a href="#Footnote_974_974" class="fnanchor">[974]</a> @@ -31036,20 +30995,20 @@ and sections 30 and 31 of the latter Act now deal with International Copyright.</p> <div class="footnote"><p><a name="Footnote_974_974" id="Footnote_974_974"></a><a href="#FNanchor_974_974"><span class="label">[974]</span></a> See - above, § <a href="#In_1883_an_International_Union467">467</a>, and Orelli, "Der internationale Schutz -des Urheberrechts" (1887); Thomas, "La convention littéraire et + above, § <a href="#In_1883_an_International_Union467">467</a>, 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 +International Copyright" (1906); Röthlisberger, "Die Berner Ãœbereinkunft zum Schutze von Werken der Literatur und Kunst" (1906).</p></div> <div class="footnote"><p><a name="Footnote_975_975" id="Footnote_975_975"></a><a href="#FNanchor_975_975"><span class="label">[975]</span></a> See Martens, N.R.G. 3rd Ser. IV. p. 590; Wauwermans, "La -convention de Berne (revisée à Berlin) pour la protection des œuvres -littéraires et artistiques" (1910).</p></div> +convention de Berne (revisée à Berlin) pour la protection des œuvres +littéraires et artistiques" (1910).</p></div> <div class="sidenote"><p>Commerce and Industry.</p></div> -<p>§ 585. In the interests of commerce and industry +<p>§ 585. In the interests of commerce and industry three Unions are in existence:—</p> <p>(1) <a name="On_July1of585" id="On_July1of585"></a>On July 5, 1890, the Convention of Brussels was @@ -31072,7 +31031,7 @@ States of America, Uruguay, and Venezuela.</p> Martens, N.R.G. 2nd Ser. XVIII. p. 558.</p></div> <div class="footnote"><p><a name="Footnote_977_977" id="Footnote_977_977"></a><a href="#FNanchor_977_977"><span class="label">[977]</span></a> See - above, § <a href="#The_International_Union469">469</a>.</p></div> + above, § <a href="#The_International_Union469">469</a>.</p></div> <p>(2) <a name="On_March2of585" id="On_March2of585"></a>On March 20, 1883, the Convention of Paris<a name="FNanchor_978_978" id="FNanchor_978_978"></a><a href="#Footnote_978_978" class="fnanchor">[978]</a> was signed for the purpose of creating an international @@ -31097,13 +31056,13 @@ is a party to the former but not to the latter.</p> Martens, N.R.G. 2nd Ser. X. p. 133.</p></div> <div class="footnote"><p><a name="Footnote_979_979" id="Footnote_979_979"></a><a href="#FNanchor_979_979"><span class="label">[979]</span></a> See - above, § <a href="#In_1883_an_International_Union467">467</a>.</p></div> + above, § <a href="#In_1883_an_International_Union467">467</a>.</p></div> <div class="footnote"><p><a name="Footnote_980_980" id="Footnote_980_980"></a><a href="#FNanchor_980_980"><span class="label">[980]</span></a> 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).</p></div> +Vidal-Noguet, "La convention d'union pour la protection de la propriété +industrielle du 20 mars 1883 et les conférences de révision +postérieures" (1902).</p></div> <div class="footnote"><p><a name="Footnote_981_981" id="Footnote_981_981"></a><a href="#FNanchor_981_981"><span class="label">[981]</span></a> See Martens, N.R.G. 2nd Ser. XXX. p. 475.</p></div> @@ -31124,7 +31083,7 @@ Act<a name="FNanchor_984_984" id="FNanchor_984_984"></a><a href="#Footnote_984_9 "Welt-Zuckerindustrie und internationales und coloniales Recht" (1904).</p></div> <div class="footnote"><p><a name="Footnote_983_983" id="Footnote_983_983"></a><a href="#FNanchor_983_983"><span class="label">[983]</span></a> See - above, §§ <a href="#According_to_article462">462</a> + above, §§ <a href="#According_to_article462">462</a> and <a href="#The_States_which471">471</a>.</p></div> <div class="footnote"><p><a name="Footnote_984_984" id="Footnote_984_984"></a><a href="#FNanchor_984_984"><span class="label">[984]</span></a> See @@ -31132,7 +31091,7 @@ Act<a name="FNanchor_984_984" id="FNanchor_984_984"></a><a href="#Footnote_984_9 <div class="sidenote"><p>Agriculture.</p></div> -<p>§ 586. Three general conventions are in existence in +<p>§ 586. Three general conventions are in existence in the interest of Agriculture:—</p> <p>(1) <a name="On_June1of586" id="On_June1of586"></a>On June 7, 1905, the Convention for the Creation @@ -31141,7 +31100,7 @@ at Rome by forty States. The Institute has its seat at Rome.</p> <div class="footnote"><p><a name="Footnote_985_985" id="Footnote_985_985"></a><a href="#FNanchor_985_985"><span class="label">[985]</span></a> See - above, § <a href="#In_1905_the_Agricultural471a">471<i>a</i></a>, and Martens, N.R.G. 3rd Ser. II. p. + above, § <a href="#In_1905_the_Agricultural471a">471<i>a</i></a>, and Martens, N.R.G. 3rd Ser. II. p. 238, and Treaty Series, 1910, No. 17.<span class="pagenum"><a name="Page_618" id="Page_618">[Pg 618]</a></span></p></div> <p>(2) Owing to the great damage done to grapes @@ -31171,7 +31130,7 @@ Luxemburg, Monaco, Norway, Portugal, Sweden, Switzerland.</p> <div class="sidenote"><p>Welfare of Working Classes.</p></div> -<p>§ 587. Two general treaties are in existence with +<p>§ 587. Two general treaties are in existence with regard to the welfare of the working classes:—</p> <p>(1) On September 26, 1906, was signed at Berne a @@ -31203,7 +31162,7 @@ in 1910.</p> <div class="sidenote"><p>Weights, Measures, Coinage.</p></div> -<p>§ 588. One Union concerning weights and measures +<p>§ 588. One Union concerning weights and measures and two monetary Unions are in existence.</p> <p>(1) <a name="In_the_interest_of1of588" id="In_the_interest_of1of588"></a>In the interest of the unification and improvement @@ -31222,7 +31181,7 @@ Servia acceded later.</p> Martens, N.R.G. 2nd Ser. I. p. 663.</p></div> <div class="footnote"><p><a name="Footnote_992_992" id="Footnote_992_992"></a><a href="#FNanchor_992_992"><span class="label">[992]</span></a> See - above, § <a href="#The_States_which_have466">466</a>.</p></div> + above, § <a href="#The_States_which_have466">466</a>.</p></div> <p>(2) On December 23, 1865, Belgium, France, Italy, and Switzerland signed the Convention of Paris which @@ -31259,7 +31218,7 @@ had no practical result.</p> <div class="sidenote"><p>Official Publications.</p></div> -<p>§ 589. On March 15, 1886, Belgium, Brazil, Italy, +<p>§ 589. On March 15, 1886, Belgium, Brazil, Italy, Portugal, Servia, Spain, Switzerland, and the United States of America signed at Brussels a convention<a name="FNanchor_997_997" id="FNanchor_997_997"></a><a href="#Footnote_997_997" class="fnanchor">[997]</a> concerning the exchange of their official documents @@ -31278,7 +31237,7 @@ parlementaires</i>.</p> <div class="sidenote"><p>Sanitation.</p></div> -<p>§ 590. <a name="In_the_interest590" id="In_the_interest590"></a>In the interest of public health as endangered +<p>§ 590. <a name="In_the_interest590" id="In_the_interest590"></a>In the interest of public health as endangered by cholera and plague a number of so-called sanitary conventions have been concluded:—</p> @@ -31369,11 +31328,11 @@ later.</p> 1909, No. 6.</p></div> <div class="footnote"><p><a name="Footnote_1005_1005" id="Footnote_1005_1005"></a><a href="#FNanchor_1005_1005"><span class="label">[1005]</span></a> See - above, § <a href="#In_1907_the_International_Health471b">471<i>b</i></a>.</p></div> + above, § <a href="#In_1907_the_International_Health471b">471<i>b</i></a>.</p></div> <div class="sidenote"><p>Pharmacopœia.</p></div> -<p>§ 591. On November 29, 1906, Great Britain, Germany, +<p>§ 591. On November 29, 1906, Great Britain, Germany, Austria-Hungary, Belgium, Bulgaria, Denmark, Spain, the United States of America, France, Greece, Italy, Luxemburg, Norway, Holland, Russia, Servia, @@ -31387,7 +31346,7 @@ Formulas for Potent Drugs.<a name="FNanchor_1006_1006" id="FNanchor_1006_1006">< <div class="sidenote"><p>Humanity.</p></div> -<p>§ 592. In the interest of humanity two Unions—although +<p>§ 592. In the interest of humanity two Unions—although the term "Union" is not made use of in the treaties—are in existence, namely, that concerning Slave Trade and that concerning the so-called White Slave @@ -31403,7 +31362,7 @@ trade came into existence. This Union was established by the General Act<a name="FNanchor_1008_1008" id="FNanchor_1008_1008"></a><a href="#Footnote_1008_1008" class="fnanchor">[1008]</a> of the Brussels Conference, signed on July 2, 1890, and possesses two International Offices,<a name="FNanchor_1009_1009" id="FNanchor_1009_1009"></a><a href="#Footnote_1009_1009" class="fnanchor">[1009]</a> namely, the International Maritime Office at Zanzibar -and the Bureau Spécial attached to the Foreign Office +and the Bureau Spécial attached to the Foreign Office at Brussels. The signatory Powers are:—Great Britain, Austria-Hungary, Belgium, Congo Free State, Denmark, France, Germany, Holland, Italy, Persia, Portugal, @@ -31412,13 +31371,13 @@ America, Turkey, and Zanzibar. Liberia acceded later.</p> <div class="footnote"><p><a name="Footnote_1007_1007" id="Footnote_1007_1007"></a><a href="#FNanchor_1007_1007"><span class="label">[1007]</span></a> See - above, <a href="#Footnote_608_608">§ 292, p. 368, note 2</a>.</p></div> + above, <a href="#Footnote_608_608">§ 292, p. 368, note 2</a>.</p></div> <div class="footnote"><p><a name="Footnote_1008_1008" id="Footnote_1008_1008"></a><a href="#FNanchor_1008_1008"><span class="label">[1008]</span></a> See Martens, N.R.G. 2nd Ser. XVI. p. 3.</p></div> <div class="footnote"><p><a name="Footnote_1009_1009" id="Footnote_1009_1009"></a><a href="#FNanchor_1009_1009"><span class="label">[1009]</span></a> See - above, § <a href="#In_accordance_with_the_General_Act468">468</a>.</p></div> + above, § <a href="#In_accordance_with_the_General_Act468">468</a>.</p></div> <p>(2) On May 18, 1904, an Agreement for the Suppression<span class="pagenum"><a name="Page_623" id="Page_623">[Pg 623]</a></span> of the White Slave Traffic<a name="FNanchor_1010_1010" id="FNanchor_1010_1010"></a><a href="#Footnote_1010_1010" class="fnanchor">[1010]</a> was signed at Paris by @@ -31431,12 +31390,12 @@ States, but has not yet been ratified.</p> <div class="footnote"><p><a name="Footnote_1010_1010" id="Footnote_1010_1010"></a><a href="#FNanchor_1010_1010"><span class="label">[1010]</span></a> See Martens, N.R.G. 2nd Ser. XXXII. p. 160, and Treaty -Series, 1905, No. 24—See also Butz, "Die Bekämpfung des Mädchenhandels +Series, 1905, No. 24—See also Butz, "Die Bekämpfung des Mädchenhandels im internationalen Recht" (1908); Rehm in Z.V. I. (1907), pp. 446-453.</p></div> <div class="sidenote"><p>Preservation of Animal World.</p></div> -<p>§ 593. Two general treaties are in existence for the +<p>§ 593. Two general treaties are in existence for the purpose of preserving certain animals in certain parts of the world:—</p> @@ -31457,11 +31416,11 @@ by Great Britain, the United States of America, Japan, and Russia, but has not yet been ratified.</p> <div class="footnote"><p><a name="Footnote_1012_1012" id="Footnote_1012_1012"></a><a href="#FNanchor_1012_1012"><span class="label">[1012]</span></a> See - above, § <a href="#In_1886_a_conflict284">284</a>.</p></div> + above, § <a href="#In_1886_a_conflict284">284</a>.</p></div> <div class="sidenote"><p>Private International Law.</p></div> -<p>§ 594. Various general treaties have been concluded +<p>§ 594. Various general treaties have been concluded for the purpose of establishing uniform rules concerning subjects of the so-called Private International Law:—</p> @@ -31502,7 +31461,7 @@ digest of all the Hague Conventions concerned.</p></div> <div class="sidenote"><p>American Republics.</p></div> -<p>§ 595. <a name="The_first_Pan595" id="The_first_Pan595"></a>The first Pan-American Conference held at +<p>§ 595. <a name="The_first_Pan595" id="The_first_Pan595"></a>The first Pan-American Conference held at Washington in 1889 created the International Union of the American Republics for prompt collection and distribution of commercial information.<a name="FNanchor_1016_1016" id="FNanchor_1016_1016"></a><a href="#Footnote_1016_1016" class="fnanchor">[1016]</a> This Union @@ -31527,14 +31486,14 @@ conference.</p> Barrett, "The Pan-American Union" (1911).</p></div> <div class="footnote"><p><a name="Footnote_1017_1017" id="Footnote_1017_1017"></a><a href="#FNanchor_1017_1017"><span class="label">[1017]</span></a> See - above, § <a href="#The_first_Pan-American_Conference467a">467<i>a</i></a>.</p></div> + above, § <a href="#The_first_Pan-American_Conference467a">467<i>a</i></a>.</p></div> <div class="footnote"><p><a name="Footnote_1018_1018" id="Footnote_1018_1018"></a><a href="#FNanchor_1018_1018"><span class="label">[1018]</span></a> See Reinsch, "Public International Unions" (1911), p. 117.</p></div> <div class="sidenote"><p>Science.</p></div> -<p>§ 596. <a name="In_the_interest_of596" id="In_the_interest_of596"></a>In the interest of scientific research the following +<p>§ 596. <a name="In_the_interest_of596" id="In_the_interest_of596"></a>In the interest of scientific research the following Unions<a name="FNanchor_1019_1019" id="FNanchor_1019_1019"></a><a href="#Footnote_1019_1019" class="fnanchor">[1019]</a> have been established:—</p> <div class="footnote"><p><a name="Footnote_1019_1019" id="Footnote_1019_1019"></a><a href="#FNanchor_1019_1019"><span class="label">[1019]</span></a> The conventions which have created these Unions would seem @@ -31772,12 +31731,12 @@ the text of this Convention, see <i>Annuaire de la Vie Internationale</i>, 1908- <p class="indh">Asylum of criminals:</p> <p class="indh4"> in foreign countries, <a href="#Page_392">392</a></p> -<p class="indh4"> in hôtels of diplomatic envoys, <a href="#Page_461">461</a></p> +<p class="indh4"> in hôtels of diplomatic envoys, <a href="#Page_461">461</a></p> <p class="indh4"> in men-of-war and other public vessels abroad, <a href="#Page_507">507</a></p> <p class="indh">Atmosphere, territorial, <a href="#Page_236">236</a></p> -<p class="indh">Attachés of Legation, <a href="#Page_472">472</a></p> +<p class="indh">Attachés of Legation, <a href="#Page_472">472</a></p> <p class="indh">Attentat clause, the Belgian, <a href="#Page_416">416</a>, <a href="#Page_421">421</a></p> @@ -31850,7 +31809,7 @@ the text of this Convention, see <i>Annuaire de la Vie Internationale</i>, 1908- <p class="indh">Belgium, independence of, <a href="#Page_68">68</a>, <a href="#Page_312">312</a></p> <p class="indh4"> neutralisation of, <a href="#Page_152">152</a>, <a href="#Page_588">588</a></p> -<p class="indh">Belle-Isle, case of Maréchal de, <a href="#Page_471">471</a></p> +<p class="indh">Belle-Isle, case of Maréchal de, <a href="#Page_471">471</a></p> <p class="indh">Belli, <a href="#Page_84">84</a></p> @@ -32064,9 +32023,9 @@ International Law, <a href="#Page_578">578</a></p> <p class="indh"><i>Chapelle, droit de</i>, <a href="#Page_467">467</a></p> -<p class="indh"><i>Chargés d'Affaires</i>, 445-481. <i>See also</i> <a href="#Diplomatic_envoys">Diplomatic envoys</a></p> +<p class="indh"><i>Chargés d'Affaires</i>, 445-481. <i>See also</i> <a href="#Diplomatic_envoys">Diplomatic envoys</a></p> -<p class="indh"><i>Chargés des Affaires</i>, <a href="#Page_445">445</a></p> +<p class="indh"><i>Chargés des Affaires</i>, <a href="#Page_445">445</a></p> <p class="indh">Charkieh, case of the, <a href="#Page_507">507</a></p> @@ -32168,7 +32127,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh"><i>Conseil sanitaire maritime et quarantenaire</i> at Alexandria, <a href="#Page_515">515</a></p> -<p class="indh"><i>Conseil supérieur de santé</i> at Constantinople, <a href="#Page_515">515</a></p> +<p class="indh"><i>Conseil supérieur de santé</i> at Constantinople, <a href="#Page_515">515</a></p> <p class="indh"><i>Consolato del mare</i>, <a href="#Page_56">56</a></p> @@ -32283,7 +32242,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh">Cromwell, <a href="#Page_172">172</a>, <a href="#Page_459">459</a></p> -<p class="indh">Crucée, Émeric, <a href="#Page_58">58</a></p> +<p class="indh">Crucée, Émeric, <a href="#Page_58">58</a></p> <p class="indh">Cruchaga, <a href="#Page_97">97</a></p> @@ -32355,7 +32314,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh">Delinquency, international, <a href="#Page_209">209</a></p> -<p class="indh"><i>Délits complexes</i>, <a href="#Page_415">415</a></p> +<p class="indh"><i>Délits complexes</i>, <a href="#Page_415">415</a></p> <p class="indh">Delta, <a href="#Page_300">300</a></p> @@ -32455,7 +32414,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh4"> of envoys abroad, <a href="#Page_474">474</a></p> <p class="indh4"> through naturalisation, <a href="#Page_375">375</a>, <a href="#Page_379">379</a></p> -<p class="indh">Domin-Petrushévecz, <a href="#Page_36">36</a></p> +<p class="indh">Domin-Petrushévecz, <a href="#Page_36">36</a></p> <p class="indh">Doyen of the diplomatic corps, <a href="#Page_446">446</a></p> @@ -32465,9 +32424,9 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh4"> <i>d'aubaine</i>, <a href="#Page_398">398</a></p> <p class="indh4"> <i>de chapelle</i>, <a href="#Page_467">467</a></p> <p class="indh4"> <i>de convenance</i>, <a href="#Page_184">184</a></p> -<p class="indh4"> <i>d'enquête</i>, <a href="#Page_336">336</a></p> -<p class="indh4"> <i>d'étape</i>, <a href="#Page_278">278</a></p> -<p class="indh4"> <i>de préséance</i>, <a href="#Page_172">172</a></p> +<p class="indh4"> <i>d'enquête</i>, <a href="#Page_336">336</a></p> +<p class="indh4"> <i>d'étape</i>, <a href="#Page_278">278</a></p> +<p class="indh4"> <i>de préséance</i>, <a href="#Page_172">172</a></p> <p class="indh4"> <i>de recousse</i>, <a href="#Page_347">347</a></p> <p class="indh4"> <i>de renvoi</i>, <a href="#Page_402">402</a></p> <p class="indh4"> <i>du culte</i>, <a href="#Page_467">467</a></p> @@ -32522,7 +32481,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh">Enemy goods covered by neutral flag, <a href="#Page_588">588</a></p> -<p class="indh"><i>Enquête, droit d'</i>, <a href="#Page_336">336</a></p> +<p class="indh"><i>Enquête, droit d'</i>, <a href="#Page_336">336</a></p> <p class="indh">Envoys extraordinary, <a href="#Page_444">444</a>, <a href="#Page_445">445</a></p> @@ -32536,7 +32495,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh">Estate duty, <a href="#Page_398">398</a></p> -<p class="indh"><i>Étape, droit d'</i>, <a href="#Page_278">278</a></p> +<p class="indh"><i>Étape, droit d'</i>, <a href="#Page_278">278</a></p> <p class="indh">European Concert, <a href="#Page_170">170</a></p> @@ -32605,7 +32564,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh4"> definition of, <a href="#Page_11">11</a></p> <p class="indh4"> position of States in the, <a href="#Page_165">165</a></p> -<p class="indh">Faröe Island Fisheries, <a href="#Page_353">353</a></p> +<p class="indh">Faröe Island Fisheries, <a href="#Page_353">353</a></p> <p class="indh">Fauchille, <a href="#Page_95">95</a>, <a href="#Page_103">103</a></p> @@ -32635,7 +32594,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh">Fiore, <a href="#Page_37">37</a>, <a href="#Page_96">96</a>, <a href="#Page_99">99</a></p> <p class="indh">Fisheries:</p> -<p class="indh4"> around the Faröe Islands, <a href="#Page_353">353</a></p> +<p class="indh4"> around the Faröe Islands, <a href="#Page_353">353</a></p> <p class="indh4"> as servitudes, <a href="#Page_278">278</a></p> <p class="indh4"> in gulfs and bays, <a href="#Page_265">265</a></p> <p class="indh4"> in straits, <a href="#Page_266">266</a></p> @@ -32675,7 +32634,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh">France, as an International person, <a href="#Page_122">122</a></p> -<p class="indh"><i>Franchise de l'hôtel</i>, <a href="#Page_461">461</a></p> +<p class="indh"><i>Franchise de l'hôtel</i>, <a href="#Page_461">461</a></p> <p class="indh4"> <i>du quartier</i>, <a href="#Page_461">461</a></p> <p class="indh">Franconia, case of, <a href="#Page_29">29</a></p> @@ -32753,7 +32712,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh">Greeks, their rules for international relations, <a href="#Page_49">49</a></p> -<p class="indh">Gregoire, Abbé, <a href="#Page_35">35</a></p> +<p class="indh">Gregoire, Abbé, <a href="#Page_35">35</a></p> <p class="indh">Grotians, the, <a href="#Page_92">92</a></p> @@ -32770,7 +32729,7 @@ negotiation, <a href="#Page_530">530</a></p> <p class="indh4"> effect of, <a href="#Page_600">600</a></p> <p class="indh4"> pseudo-guarantees, <a href="#Page_602">602</a>-604</p> -<p class="indh">Guébriant, Madame de, <a href="#Page_447">447</a></p> +<p class="indh">Guébriant, Madame de, <a href="#Page_447">447</a></p> <p class="indh">Gulfs, <a href="#Page_262">262</a></p> @@ -32886,7 +32845,7 @@ servitudes in the, <a href="#Page_275">275</a></p> <p class="indh">Humbert of Italy, assassination of King, <a href="#Page_418">418</a>, <a href="#Page_420">420</a></p> -<p class="indh">Hüningen, <a href="#Page_279">279</a></p> +<p class="indh">Hüningen, <a href="#Page_279">279</a></p> <p class="indh">Huron, Lake of, <a href="#Page_246">246</a>, <a href="#Page_247">247</a></p> @@ -32935,10 +32894,10 @@ servitudes in the, <a href="#Page_275">275</a></p> <p class="indh">Inquiry, international commissions of, <a href="#Page_512">512</a></p> <p class="indh">Institute of International Law, the, <a href="#Page_36">36</a></p> -<p class="indh4"> <i>règlement</i> concerning acts of insurgents, <a href="#Page_224">224</a></p> -<p class="indh4"> <i>règlement</i> concerning consuls, <a href="#Page_494">494</a></p> -<p class="indh4"> <i>règlement</i> concerning men-of-war in foreign ports, <a href="#Page_508">508</a></p> -<p class="indh4"> <i>règlement</i> concerning utilisation of flow of rivers, <a href="#Page_243">243</a></p> +<p class="indh4"> <i>règlement</i> concerning acts of insurgents, <a href="#Page_224">224</a></p> +<p class="indh4"> <i>règlement</i> concerning consuls, <a href="#Page_494">494</a></p> +<p class="indh4"> <i>règlement</i> concerning men-of-war in foreign ports, <a href="#Page_508">508</a></p> +<p class="indh4"> <i>règlement</i> concerning utilisation of flow of rivers, <a href="#Page_243">243</a></p> <p class="indh4"> rules concerning aliens, <a href="#Page_391">391</a>, <a href="#Page_401">401</a></p> <p class="indh4"> rules concerning double and absent nationality, <a href="#Page_390">390</a></p> <p class="indh4"> rules concerning extradition, <a href="#Page_410">410</a>, <a href="#Page_417">417</a></p> @@ -32951,7 +32910,7 @@ servitudes in the, <a href="#Page_275">275</a></p> <p class="indh">Insurgents recognised as a belligerent Power, <a href="#Page_107">107</a>, <a href="#Page_119">119</a></p> <p class="indh4"> do not possess the right of legation, <a href="#Page_442">442</a></p> -<p class="indh4"> <i>règlement</i> of the Institute +<p class="indh4"> <i>règlement</i> of the Institute of International Law concerning acts of, <a href="#Page_224">224</a></p> <p class="indh4"> send public political agents, <a href="#Page_509">509</a></p> @@ -33127,7 +33086,7 @@ of commissioners, <a href="#Page_513">513</a></p> <p class="indh">Johann Friederich, case of the, <a href="#Page_339">339</a></p> -<p class="indh"><i>Journal Télégraphique</i>, <a href="#Page_516">516</a></p> +<p class="indh"><i>Journal Télégraphique</i>, <a href="#Page_516">516</a></p> <p class="indh"><i>Juges Consuls</i>, <a href="#Page_482">482</a></p> @@ -33199,7 +33158,7 @@ of commissioners, <a href="#Page_513">513</a></p> <p class="indh">King's Chamber, <a href="#Page_263">263</a></p> -<p class="indh">Klüber, <a href="#Page_95">95</a>, <a href="#Page_98">98</a>, <a href="#Page_103">103</a></p> +<p class="indh">Klüber, <a href="#Page_95">95</a>, <a href="#Page_98">98</a>, <a href="#Page_103">103</a></p> <p class="indh">Kohler, <a href="#Page_104">104</a></p> @@ -33260,7 +33219,7 @@ of commissioners, <a href="#Page_513">513</a></p> <p class="indh">Leibnitz, <a href="#Page_102">102</a></p> -<p class="indh"><i>Lèse-majesté</i>, <a href="#Page_413">413</a>, <a href="#Page_415">415</a></p> +<p class="indh"><i>Lèse-majesté</i>, <a href="#Page_413">413</a>, <a href="#Page_415">415</a></p> <p class="indh">Letters:</p> <p class="indh"> of credence, <a href="#Page_447">447</a>, <a href="#Page_476">476</a>, <a href="#Page_477">477</a>, <a href="#Page_479">479</a>, <a href="#Page_509">509</a></p> @@ -33269,9 +33228,9 @@ of commissioners, <a href="#Page_513">513</a></p> <p class="indh"> of recommendation, <a href="#Page_509">509</a>, <a href="#Page_510">510</a></p> <p class="indh"><i>Lettre:</i></p> -<p class="indh"> <i>de créance</i>, <a href="#Page_447">447</a></p> +<p class="indh"> <i>de créance</i>, <a href="#Page_447">447</a></p> <p class="indh"> <i>de provision</i>, <a href="#Page_477">477</a></p> -<p class="indh"> <i>de récréance</i>, <a href="#Page_477">477</a></p> +<p class="indh"> <i>de récréance</i>, <a href="#Page_477">477</a></p> <p class="indh">Levi, Leone, <a href="#Page_37">37</a>, <a href="#Page_94">94</a></p> @@ -33451,7 +33410,7 @@ Convention concerning, <a href="#Page_351">351</a></p> <p class="indh">Merger of States, <a href="#Page_124">124</a>, <a href="#Page_127">127</a>, <a href="#Page_372">372</a></p> -<p class="indh">Mérignhac, <a href="#Page_95">95</a></p> +<p class="indh">Mérignhac, <a href="#Page_95">95</a></p> <p class="indh">Metternich, Prince, <a href="#Page_249">249</a></p> @@ -33730,7 +33689,7 @@ Convention concerning, <a href="#Page_351">351</a></p> <p class="indh">Official publications, <a href="#Page_620">620</a></p> -<p class="indh">Oléron, Laws of, <a href="#Page_56">56</a></p> +<p class="indh">Oléron, Laws of, <a href="#Page_56">56</a></p> <p class="indh">Oliva, Peace Treaty of, <a href="#Page_63">63</a></p> @@ -33781,7 +33740,7 @@ Convention concerning, <a href="#Page_351">351</a></p> <p class="indh">Oregon Boundary dispute, <a href="#Page_295">295</a></p> -<p class="indh">Ottoman law (1863), concerning protégés, <a href="#Page_373">373</a></p> +<p class="indh">Ottoman law (1863), concerning protégés, <a href="#Page_373">373</a></p> </div> @@ -33921,7 +33880,7 @@ Convention concerning, <a href="#Page_351">351</a></p> <p class="indh">Physically impossible obligations, <a href="#Page_549">549</a></p> -<p class="indh">Piédelièvre, <a href="#Page_95">95</a>, <a href="#Page_100">100</a></p> +<p class="indh">Piédelièvre, <a href="#Page_95">95</a>, <a href="#Page_100">100</a></p> <p class="indh">Pierantoni, <a href="#Page_96">96</a></p> @@ -33993,7 +33952,7 @@ Convention concerning, <a href="#Page_351">351</a></p> <p class="indh">Powers of men-of-war over merchantmen of all nations, <a href="#Page_335">335</a>, <a href="#Page_337">337</a></p> -<p class="indh">Pradier-Fodéré, <a href="#Page_95">95</a>, <a href="#Page_100">100</a></p> +<p class="indh">Pradier-Fodéré, <a href="#Page_95">95</a>, <a href="#Page_100">100</a></p> <p class="indh">Prague, Peace Treaty of (1866), <a href="#Page_364">364</a></p> @@ -34037,7 +33996,7 @@ Convention concerning, <a href="#Page_351">351</a></p> <p class="indh">Protectorate as precursor of occupation, <a href="#Page_296">296</a></p> -<p class="indh">Protégés, <a href="#Page_371">371</a></p> +<p class="indh">Protégés, <a href="#Page_371">371</a></p> <p class="indh">Protest as an international transaction, <a href="#Page_538">538</a></p> @@ -34223,7 +34182,7 @@ recognised as a belligerent Power, <a href="#Page_442">442</a></p> <p class="indh">Rights of Nations, Declaration of, <a href="#Page_35">35</a>, <a href="#Page_65">65</a></p> -<p class="indh">Rioters, <i>règlement</i> of the Institute of International Law concerning Acts of, <a href="#Page_224">224</a></p> +<p class="indh">Rioters, <i>règlement</i> of the Institute of International Law concerning Acts of, <a href="#Page_224">224</a></p> <p class="indh">Ripperda, case of the Duke of, <a href="#Page_461">461</a></p> @@ -34278,7 +34237,7 @@ recognised as a belligerent Power, <a href="#Page_442">442</a></p> <p class="indh">S</p> -<p class="indh">Sà, case of Don Pantaleon, <a href="#Page_475">475</a></p> +<p class="indh">Sà , case of Don Pantaleon, <a href="#Page_475">475</a></p> <p class="indh">Saalfeld, <a href="#Page_96">96</a></p> @@ -34326,7 +34285,7 @@ recognised as a belligerent Power, <a href="#Page_442">442</a></p> <p class="indh">Schmauss, <a href="#Page_102">102</a></p> -<p class="indh">Schnaebélé, case of, <a href="#Page_511">511</a></p> +<p class="indh">Schnaebélé, case of, <a href="#Page_511">511</a></p> <p class="indh">Schools of International Jurists, <a href="#Page_82">82</a>, <a href="#Page_89">89</a></p> @@ -34406,7 +34365,7 @@ recognised as a belligerent Power, <a href="#Page_442">442</a></p> <p class="indh">Soudan, international position of, <a href="#Page_232">232</a></p> -<p class="indh">Soulé, case of, <a href="#Page_470">470</a></p> +<p class="indh">Soulé, case of, <a href="#Page_470">470</a></p> <p class="indh">Sound dues, <a href="#Page_267">267</a></p> @@ -34840,7 +34799,7 @@ through Peace Treaty of Paris (1856), <a href="#Page_32">32</a>, <a href="#Page_ <p class="indh4"> through impossibility of execution, <a href="#Page_577">577</a></p> <p class="indh4"> through realisation of purpose, <a href="#Page_577">577</a></p> -<p class="indh"><i>Völkerrechts-Indigenat</i>, <a href="#Page_367">367</a></p> +<p class="indh"><i>Völkerrechts-Indigenat</i>, <a href="#Page_367">367</a></p> </div> @@ -34973,389 +34932,6 @@ Edinburgh & London</p> </div> - - - - - - - - - - - - - -<pre> - - - - - -End of the Project Gutenberg EBook of International Law. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: International Law. A Treatise. Volume I (of 2) - Peace. Second Edition - -Author: Lassa Francis Oppenheim - -Release Date: October 16, 2012 [EBook #41046] - -Language: English - -Character set encoding: ASCII - -*** START OF THIS PROJECT GUTENBERG EBOOK INTERNATIONAL LAW, A TREATISE, VOL I *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive/American -Libraries.) - - - - - -[Transcriber's note: Original spelling variations have not been -standardized. The paragraph sign has been replaced with [p]. Underscores -have been used to indicate _italic_ fonts.] - - -INTERNATIONAL LAW - - -A TREATISE - -BY - -L. OPPENHEIM, M.A., LL.D. - -WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE - -MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW - -HONORARY MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID - - -VOL. I. - -PEACE - -_SECOND EDITION_ - - -LONGMANS, GREEN AND CO. - -39 PATERNOSTER ROW, LONDON - -NEW YORK, BOMBAY, AND CALCUTTA - -1912 - - -All rights reserved - - - - - TO - EDWARD ARTHUR WHITTUCK - WHOSE SYMPATHY AND ENCOURAGEMENT HAVE ACCOMPANIED THE PROGRESS - OF THIS WORK FROM ITS INCEPTION TO ITS CLOSE - - - - -PREFACE - -TO THE SECOND EDITION - - -The course of events since 1905, when this work first made its -appearance, and the results of further research have necessitated not -only the thorough revision of the former text and the rewriting of some -of its parts, but also the discussion of a number of new topics. But -while the new matter which has been incorporated has added considerably -to the length of the work--the additions to the bibliography, text, and -notes amounting to nearly a quarter of the former work--this second -edition is not less convenient in size than its predecessor. By -rearranging the matter on the page, using a line extra on each, and a -greater number of words on a line, by setting the bibliography and notes -in smaller type, and by omitting the Appendix, it has been found -possible to print the text of this new edition on 626 pages, as compared -with 594 pages of the first edition. - -The system being elastic it was possible to place most of the additional -matter within the same sections and under the same headings as before. -Some of the points treated are, however, so entirely new that it was -necessary to deal with them under separate headings, and within separate -sections. The reader will easily distinguish them, since, to avoid -disturbing the arrangement of topics, these new sections have been -inserted between the old ones, and numbered as the sections preceding -them, but with the addition of the letters _a_, _b_, &c. The more -important of these new sections are the following: [p] 178_a_ -(concerning the Utilisation of the Flow of Rivers); [p][p] 287_a_ and -287_b_ (concerning Wireless Telegraphy on the Open Sea); [p][p] 287_c_ -and 287_d_ (concerning Mines and Tunnels in the Subsoil of the Sea bed); -[p] 446_a_ (concerning the Casa Blanca incident); [p][p] 476_a_ and -476_b_ (concerning the International Prize Court and the suggested -International Court of Justice); [p][p] 568_a_ and 568_b_ (concerning -the Conventions of the Second Hague Peace Conference, and the -Declaration of London); [p] 576_a_ (concerning Pseudo-Guarantees). Only -towards the end of the volume has this mode of dealing with the new -topics been departed from. As the chapter treating of Unions, the last -of the volume, had to be entirely rearranged and rewritten, and a new -chapter on Commercial Treaties inserted, the old arrangement comes to an -end with [p] 577; and [p][p] 578 to 596 of this new edition present an -arrangement of topics which differs from that of the former edition. - -I venture to hope that this edition will be received as favourably as -was its predecessor. My aim, as always, has been to put the matter as -clearly as possible before the reader, and nowhere have I forgotten that -I am writing as a teacher for students. It is a matter of great -satisfaction to me that the prophetic warnings of some otherwise very -sympathetic reviewers that a comprehensive treatise on International Law -in two volumes would never be read by young students have proved -mistaken. The numerous letters which I have received from students, not -only in this country but also in America, Japan, France, and Italy, show -that I was not wrong when, in the preface to the former edition, I -described the work as an elementary book for those beginning to study -the subject. Many years of teaching have confirmed me in the conviction -that those who approach the study of International Law should at the -outset be brought face to face with its complicated problems, and should -at once acquire a thorough understanding of the wide scope of the -subject. If writers and lecturers who aim at this goal will but make -efforts to use the clearest language and an elementary method of -explanation, they will attain success in spite of the difficulty of the -problems and the wide range of topics to be considered. - -I owe thanks to many reviewers and readers who have drawn my attention -to mistakes and misprints in the first edition, and I am especially -indebted to Mr. C. J. B. Hurst, C.B., Assistant Legal Adviser to the -Foreign Office, to Mr. E. S. Roscoe, Admiralty Registrar of the High -Court, and to Messrs. F. Ritchie and G. E. P. Hertslet of the Foreign -Office who gave me valuable information on certain points while I was -preparing the manuscript for this edition. And I must likewise most -gratefully mention Miss B. M. Rutter and Mr. C. F. Pond who have -assisted me in reading the proofs and have prepared the table of cases -and the exhaustive alphabetical index. - - L. OPPENHEIM. - - WHEWELL HOUSE, - CAMBRIDGE, - _November 1, 1911_. - - - - -ABBREVIATIONS - -OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT - - -The books referred to in the bibliography and notes are, as a rule, -quoted with their full titles and the date of their publication. But -certain books and periodicals which are very often referred to -throughout this work are quoted in an abbreviated form, as follows:-- - - A.J. = The American Journal of International - Law. - Annuaire = Annuaire de l'Institut de Droit - International. - Bluntschli = Bluntschli, Das moderne Voelkerrecht der - civilisirten Staaten als Rechtsbuch - dargestellt, 3rd ed. (1878). - Bonfils = Bonfils, Manuel De Droit International - Public, 5th ed. by Fauchille (1908). - Bulmerincq = Bulmerincq, Das Voelkerrecht (1887). - Calvo = Calvo, Le Droit International etc., 5th - ed. 6 vols. (1896). - Despagnet = Despagnet, Cours De Droit International - Public, 4th ed. by de Boeck (1910). - Field = Field, Outlines of an International Code - (1872). - Fiore = Fiore, Nouveau Droit International - Public, deuxieme edition, traduite de - l'Italien et annotee par Antoine, 3 - vols. (1885). - Fiore, Code = Fiore, Le Droit International Codifie, - nouvelle edition, traduite de - l'Italien par Antoine (1911). - Gareis = Gareis, Institutionen des Voelkerrechts, - 2nd ed. (1910). - Grotius = Grotius, De Jure Belli ac Pacis (1625). - Hall = Hall, A Treatise on International Law, - 4th ed. (1895). - Halleck = Halleck, International Law, 3rd English - ed. by Sir Sherston Baker, 2 vols. - (1893). - Hartmann = Hartmann, Institutionen des praktischen - Voelkerrechts in Friedenszeiten - (1874). - Heffter = Heffter, Das Europaeische Voelkerrecht der - Gegenwart, 8th ed. by Geffcken (1888). - Heilborn, System = Heilborn, Das System des Voelkerrechts - entwickelt aus den voelkerrechtlichen - Begriffen (1896). - Holland, Studies = Holland, Studies in International Law - (1898). - Holland, - Jurisprudence = Holland, The Elements of Jurisprudence, - 6th ed. (1893). - Holtzendorff = Holtzendorff, Handbuch des Voelkerrechts, - 4 vols. (1885-1889). - Klueber = Klueber, Europaeisches Voelkerrecht, 2nd - ed. by Morstadt (1851). - Lawrence = Lawrence, The Principles of International - Law, 4th ed.(1910). - Lawrence, Essays = Lawrence, Essays on some Disputed - Questions of Modern International Law - (1884). - Liszt = Liszt, Das Voelkerrecht, 6th ed. (1910). - Lorimer = Lorimer, The Institutes of International - Law, 2 vols. (1883-1884). - Maine = Maine, International Law, 2nd ed. (1894). - Manning = Manning, Commentaries on the Law of - Nations, new ed. by Sheldon Amos - (1875). - Martens = Martens, Voelkerrecht, German translation - of the Russian original in 2 vols. - (1883). - Martens, G. F. = G. F. Martens, Precis Du Droit Des Gens - Moderne De L'Europe, nouvelle ed. par - Verge, 2 vols. (1858). - Martens, R. | - Martens, N.R. | - Martens, N.S. | - Martens, N.R.G. | - Martens, N.R.G. | - 2nd Ser. | - Martens, N.R.G. | - 3rd Ser. | = These are the abbreviated quotations of - the different parts of Martens, - Recueil De Traites (see p. 102 of - this volume), which are in common - use. - Martens, Causes - Celebres = Martens, Causes Celebres Du Droit Des - Gens, 5 vols., 2nd ed. (1858-1861). - Merignhac = Merignhac, Traite De Droit Public - International, vol. i. (1905), vol. - ii. (1907). - Moore = Moore, A Digest of International Law, 8 - vols., Washington (1906). - Nys = Nys, Le Droit International, 3 vols. - (1904-1906). - Perels = Perels, Das internationale oeffentliche - Seerecht der Gegenwart, 2nd ed. - (1903). - Phillimore = Phillimore, Commentaries upon - International Law, 4 vols. 3rd ed. - (1879-1888). - Piedelievre = Piedelievre, Precis De Droit - International Public, 2 vols. - (1894-1895). - Pradier-Fodere = Pradier-Fodere, Traite De Droit - International Public, 8 vols. - (1885-1906). - Pufendorf = Pufendorf, De Jure Naturae et Gentium - (1672). - Rivier = Rivier, Principes Du Droit Des Gens, 2 - vols. (1896). - R.I. = Revue De Droit International Et De - Legislation Comparee. - R.G. = Revue General De Droit International - Public. - Taylor = Taylor, A Treatise on International - Public Law (1901). - Testa = Testa, Le Droit Public International - Maritime, traduction du Portugais - par Boutiron (1886). - Twiss = Twiss, The Law of Nations, 2 vols., 2nd - ed. (1884, 1875). - Ullmann = Ullmann, Voelkerrecht, 2nd ed. (1908). - Vattel = Vattel, Le Droit Des Gens, 4 books in 2 - vols., nouvelle ed. (Neuchatel, - 1773). - Walker = Walker, A Manual of Public International - Law (1895). - Walker, History = Walker, A History of the Law of Nations, - vol. i. (1899). - Walker, Science = Walker, The Science of International Law - (1893). - Westlake = Westlake, International Law, 2 vols. - (1904-1907). - Westlake, Chapters = Westlake, Chapters on the Principles of - International Law (1894). - Wharton = Wharton, A Digest of the International - Law of the United States, 3 vols. - (1886). - Wheaton = Wheaton, Elements of International Law, - 8th American ed. by Dana (1866). - Z.V. = Zeitschrift fuer Voelkerrecht und - Bundesstaatsrecht. - - - - -CASES CITED - - -Aegi, [p] 437, p. 496 - -Ambrose Light, the, [p] 273, p. 342 note 2; [p] 276, p. 345 note 1 - -Amelia Island, [p] 132, p. 186 - -Anderson, John, [p] 147, p. 205 note 1 - -Anna, the, [p] 234, p. 301 - -Aubespine, L', [p] 387, p. 459 - - -Bartram _v._ Robertson, [p] 580, p. 611 note 1 - -Bass, de, [p] 387, p. 459 - -Beckert, Wilhelm, [p] 402, p. 474 - -Belgenland, the, [p] 265, p. 335 note 3 - -Belle-Isle, Marechal de, [p] 398, p. 471 - -Boisset, M., [p] 163, p. 220 - -Botiller _v._ Dominguez, [p] 546, p. 578 note 2 - -Brooke, Sir James, [p] 209, p. 282 note 2 - -Brunswick, Duke of, _v._ King of Hanover, [p] 353, p. 433 - - -Canning, George, and the Russian Ambassador, [p] 481, p. 532 - -Canning, Sir Stratford, [p] 375, p. 451 - -Caroline, the, [p] 133, p. 187; [p] 444, p. 501; [p] 446, p. 501 - -Casa Blanca, [p] 446_a_, p. 502; [p] 476, p. 521 - -Castioni, _Ex parte_, [p] 334, p. 415 note 4 - -Cellamare, Prince, [p] 388, p. 459 - -Cespedes, the, [p] 273, p. 343, note 1 - -Charkieh, the, [p] 91, p. 144 note 1; [p] 450, p. 507 note 1 - -Charlton, Porter, [p] 330, p. 408 - -Chartered Mercantile Bank of India _v._ Netherlands India Steam -Navigation Co., [p] 265, p. 335 note 2 - -Cherokee Tobacco, the, [p] 546, p. 578 note 2 - -Constitution, the, [p] 450, p. 507 note 1 - -Cook _v._ Sprigg, [p] 82, p. 129 note 4 - -Costa Rica Packet, the, [p] 162, p. 217 - -Cutting, [p] 147, p. 205 - - -Danish Fleet, the, [p] 131, p. 186 - -De Jager _v._ The Attorney-General for Natal, [p] 317, p. 394 - -De Haber _v._ Queen of Portugal, [p] 115, p. 169 note 2 - -Delagoa Bay, [p] 247, p. 313 - -Dogger Bank, [p] 163, p. 219 note 2 - -Dubois, [p] 392, p. 465 - - -Exchange, the, [p] 450, p. 507 note 1 - - -Fonds pieux des Californias, [p] 476, p. 521 - -Franconia, the, [p] 25, p. 29 - - -Gallatin, [p] 403, p. 474 note 1 - -Germany, Great Britain, and Italy _v._ Venezuela, [p] 476, p. 521 - -Germany, France, and Great Britain _v._ Japan, [p] 476, p. 521 - -Gore and Pinkney, [p] 458, p. 513 - -Guebriant, Madame de, [p] 370, p. 447 - -Gurney, [p] 402, p. 473 note 2 - -Gyllenburg, [p] 388, p. 459 - - -Haggerty, [p] 427, p. 489 - -Hall _v._ Campbell, [p] 240, p. 306 note 1 - -Hellfeld _v._ Russian Government, [p] 115, p. 169 note 4 - -Huascar, the, [p] 273, p. 342 - -Huus _v._ New York and Porto Rico Steamship Co., [p] 579, p. 609 note 1 - - -Indian Chief, the, [p] 434, p. 494 note 1 - -Ionian Ships, [p] 93, p. 146 note 1 - -Isabella, Queen of Spain, [p] 351, p. 432 - - -Jacquin, [p] 335, p. 416 - -Jager. _See_ De Jager - -Jassy, the, [p] 450, p. 507 note 1 - -Johann Friederich, the, [p] 265, p. 335 note 2; [p] 271, p. 339 note 1 - - -Kalkstein, [p] 390, p. 464 - -Keiley, [p] 375, p. 450 - -Koszta, Martin, [p] 313, p. 388 note 1 - - -Lebanon, the. _See_ Vaderland - -L'Aubespine. _See_ Aubespine - - -McLeod, [p] 133, p. 187 note 2; [p] 446, p. 501 - -Macartney _v._ Garbutt, [p] 375, p. 450 note 2; [p] 394, p. 467 note 1 - -Magdalena Steam Navigation Co. _v._ Martin, [p] 391, p. 465 note 2 - -Maori King, the, [p] 261, p. 331 note 1 - -Mendoza, [p] 387, p. 459 - -Meunier, _In re_, [p] 334, p. 415 note 4; [p] 338, p. 418 note 3 - -Monaldeschi, [p] 348, p. 431 note 1 - -Montagnini, [p] 106, p. 160 note 1; [p] 386, p. 458 note 1; [p] 411, p. 478 -note 2 - -Montezuma, the, [p] 273, p. 343 note 1 - -Monti, Marquis de, [p] 400, p. 472 - -Moray Firth, [p] 191, p. 263 note 3. _See also_ Mortensen _v._ Peters - -Mortensen _v._ Peters, [p] 22, p. 28 note 1; [p] 192, p. 264 note 2 - -Muscat Dhows, the, [p] 295, p. 372 note 2; [p] 476, p. 521 - -Musgrove _v._ Chun Teeong Toy, [p] 141, p. 200 note 1 - - -Nereide, the, [p] 21, p. 26 note 2 - -Nikitschenkow, [p] 390, p. 463 - -Nillins, [p] 330, p. 407 - -North Atlantic Coast Fisheries, [p] 191, p. 262 note 1; [p] 205, p. 276 -note 2; [p] 458, p. 513 note 1; [p] 476, p. 522 - -Norway _v._ Sweden, [p] 476, p. 522 - - -Orinoco Steamship Co., [p] 476, p. 522 - - -Paladini, [p] 330, p. 408 - -_Panther_, the, [p] 163, p. 219 - -Paquette Habana, the, [p] 21, p. 26 note 2 - -Parkinson _v._ Potter, [p] 394, p. 467 note 1 - -Parlement Belge, the, [p] 450, p. 507 note - -Platen-Hallermund, [p] 240, p. 306 - -Portenya, the, [p] 273, p. 343 note 1 - -Pouble, Cirilo, [p] 147, p. 205 note 1 - -Prioleau _v._ United States, [p] 82, p. 129 note 1; [p] 115, p. 169 note 3 - - -Reg. _v._ Cunningham, [p] 194, p. 266 note 2 - -Republic of Bolivia _v._ The Indemnity Mutual Marine Assurance Co., [p] -272, p. 341 note 1 - -Republic of Mexico _v._ Francisco de Arrangoiz, [p] 115, p. 169 note 1 - -Ripperda, Duke of, [p] 390, p. 461 - -Ross, Bishop, [p] 362, p. 443 note 1 - - -Sa, Don Pantaleon, [p] 404, p. 475 - -Sackville, Lord, [p] 383, p. 455 note 1 - -Santa Lucia, [p] 247, p. 313 - -Sapphire, the, [p] 115, p. 169 note 1 - -Savarkar, [p] 332, p. 410; [p] 476, p. 522 - -Schnaebele, [p] 456, p. 511 - -Scotia, the, [p] 21, p. 26 note 2 - -Shenandoah, the, [p] 273, p. 343 - -Soule, [p] 398, p. 470 - -Springer, [p] 390, p. 461 - -Strathclyde, the. _See_ Franconia, the - -Sully, [p] 396, p. 468 - -Sun Yat Sen, [p] 390, p. 464 - - -Taylor _v._ Best, [p] 391, p. 465 note 2 - -Tourville, [p] 330, p. 407 - - -United States _v._ Repentigny, [p] 240, p. 306 note 1 - -United States _v._ Prioleau, [p] 82, p. 129 note 1; [p] 115, p. 169 note 3 - -United States _v._ Smith, [p] 21, p. 26 note 2 - -United States _v._ Venezuela, [p] 476, p. 522 - -United States _v._ Wagner, [p] 115, p. 169 note 1 - - -Vaderland, the, [p] 287_b_, p. 357 - -Vavasseur _v._ Krupp, [p] 115, p. 169 note 2 - -Vexaincourt, [p] 163, p. 219 - -Virginius, the, [p] 133, p. 187 note 2 - - -Waddington, Carlo, [p] 404, p. 475 - -Washburne, [p] 399, p. 471 - -West Rand Central Mining Co. _v._ The King, [p] 21, p. 26 note 2; -[p] 82, p. 129 note 4 - -William, King of Holland, [p] 350, p. 432 - -Whitney _v._ Robertson, [p] 546, p. 578 note 2; [p] 580, p. 611 note 1 - -Wrech, Baron de, [p] 391, p. 465 - - - - -CONTENTS - -OF - -THE FIRST VOLUME - - -INTRODUCTION - -CHAPTER I--FOUNDATION OF THE LAW OF NATIONS - - I. _The Law of Nations as Law_ - - SECT. PAGE - - 1. Conception of the Law of Nations 3 - 2. Legal Force of the Law of Nations contested 4 - 3. Characteristics of Rules of Law 6 - 4. Law-giving authority not essential for the existence of - Law 6 - 5. Definition and Three Essential Conditions of Law 8 - 6. Law not to be identified with Municipal Law 9 - 7. The "Family of Nations" a Community 9 - 8. The "Family of Nations" a Community with Rules of Conduct 11 - 9. External Power for the enforcement of Rules of - International Conduct 13 - 10. Practice recognises Law of Nations as Law 14 - - II. _Basis of the Law of Nations_ - - 11. Common Consent the Basis of Law 15 - 12. Common Consent of the Family of Nations the Basis of - International Law 16 - 13. States the Subjects of the Law of Nations 19 - 14. Equality an Inference from the Basis of International Law 20 - - III. _Sources of the Law of Nations_ - - 15. Source in Contradistinction to Cause 20 - 16. The Two Sources of International Law 21 - 17. Custom in Contradistinction to Usage 22 - 18. Treaties as Source of International Law 23 - 19. Factors influencing the Growth of International Law 24 - - IV. _Relations between International and Municipal Law_ - - 20. Essential Difference between International and Municipal - Law 25 - 21. Law of Nations never per se Municipal Law 26 - 22. Certain Rules of Municipal Law necessitated or - interdicted 27 - 23. Presumption against conflicts between International and - Municipal Law 28 - 24. Presumption of Existence of certain necessary - Municipal Rules 28 - 25. Presumption of the Existence of certain Municipal Rules in - Conformity with Rights granted by the Law of Nations 28 - - V. _Dominion of the Law of Nations_ - - 26. Range of Dominion of International Law controversial 30 - 27. Three Conditions of Membership of the Family of Nations 31 - 28. Present Range of Dominion of the Law of Nations 32 - 29. Treatment of States outside the Family of Nations 34 - - VI. _Codification of the Law of Nations_ - - 30. Movement in Favour of Codification 35 - 31. Work of the First Hague Peace Conference 37 - 32. Work of the Second Hague Peace Conference and the Naval - Conference of London 38 - 33. Value of Codification of International Law contested 40 - 34. Merits of Codification in general 40 - 35. Merits of Codification of International Law 42 - 36. How Codification could be realised 44 - -CHAPTER II--DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS - - I. _Development of the Law of Nations before Grotius_ - - 37. No Law of Nations in Antiquity 45 - 38. The Jews 46 - 39. The Greeks 49 - 40. The Romans 50 - 41. No need for a Law of Nations during the Middle Ages 53 - 42. The Fifteenth and Sixteenth Centuries 54 - - II. _Development of the Law of Nations after Grotius_ - - 43. The time of Grotius 59 - 44. The period 1648-1721 61 - 45. The period 1721-1789 64 - 46. The period 1789-1815 64 - 47. The period 1815-1856 66 - 48. The period 1856-1874 69 - 49. The period 1874-1899 71 - 50. The Twentieth Century 74 - 51. Six Lessons of the History of the Law of Nations 80 - - III. _The Science of the Law of Nations_ - - 52. Forerunners of Grotius 83 - 53. Grotius 85 - 54. Zouche 88 - 55. The Naturalists 89 - 56. The Positivists 90 - 57. The Grotians 92 - 58. Treatises of the Nineteenth and Twentieth Centuries 94 - 59. The Science of the Law of Nations in the Nineteenth and - Twentieth Centuries, as represented by Treatises 98 - 60. Collection of Treatises 102 - 61. Bibliographies 103 - 62. Periodicals 103 - - -PART I--_THE SUBJECTS OF THE LAW OF NATIONS_ - -CHAPTER I--INTERNATIONAL PERSONS - - I. _Sovereign States as International Persons_ - - 63. Real and apparent International Persons 107 - 64. Conception of the State 108 - 65. Not-full Sovereign States 109 - 66. Divisibility of Sovereignty contested 110 - 67. Meaning of Sovereignty in the Sixteenth and - Seventeenth Centuries 111 - 68. Meaning of Sovereignty in the Eighteenth Century 112 - 69. Meaning of Sovereignty in the Nineteenth Century 113 - 70. Result of the Controversy regarding Sovereignty 115 - - II. _Recognition of States as International Persons_ - - 71. Recognition a condition of Membership of the Family of - Nations 116 - 72. Mode of Recognition 117 - 73. Recognition under Conditions 118 - 74. Recognition Timely and Precipitate 119 - 75. State Recognition in contradistinction to other - Recognitions 120 - - III. _Changes in the Condition of International Persons_ - - 76. Important in contradistinction to Indifferent Changes 121 - 77. Changes not affecting States as International Persons 122 - 78. Changes affecting States as International Persons 123 - 79. Extinction of International Persons 124 - - IV. _Succession of International Persons_ - - 80. Common Doctrine regarding Succession of International - Persons 125 - 81. How far Succession actually takes place 127 - 82. Succession in consequence of Absorption 127 - 83. Succession in consequence of Dismemberment 130 - 84. Succession in case of Separation or Cession 131 - - V. _Composite International Persons_ - - 85. Real and apparent Composite International Persons 132 - 86. States in Personal Union 133 - 87. States in Real Union 134 - 88. Confederated States (Staatenbund) 135 - 89. Federal States (Bundesstaaten) 136 - - VI. _Vassal States_ - - 90. The Union between Suzerain and Vassal State 140 - 91. International position of Vassal States 141 - - VII. _States under Protectorate_ - - 92. Conception of Protectorate 144 - 93. International position of States under Protectorate 145 - 94. Protectorates outside the Family of Nations 146 - - VIII. _Neutralised States_ - - 95. Conception of Neutralised States 147 - 96. Act and Condition of Neutralisation 148 - 97. International position of Neutralised States 149 - 98. Switzerland 151 - 99. Belgium 152 - 100. Luxemburg 152 - 101. The former Congo Free State 153 - - IX. _Non-Christian States_ - - 102. No essential difference between Christian and other - States 154 - 103. International position of non-Christian States except - Turkey and Japan 155 - - X. _The Holy See_ - - 104. The former Papal States 157 - 105. The Italian Law of Guaranty 158 - 106. International position of the Holy See and the Pope 159 - 107. Violation of the Holy See and the Pope 161 - - XI. _International Persons of the Present Day_ - - 108. European States 162 - 109. American States 163 - 110. African States 164 - 111. Asiatic States 164 - -CHAPTER II--POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS - - I. _International Personality_ - - 112. The so-called Fundamental Rights 165 - 113. International Personality a Body of Qualities 166 - 114. Other Characteristics of the position of the States - within the Family of Nations 167 - - II. _Equality, Rank, and Titles_ - - 115. Legal Equality of States 168 - 116. Political Hegemony of Great Powers 170 - 117. Rank of States 171 - 118. The Alternat 173 - 119. Titles of States 173 - - III. _Dignity_ - - 120. Dignity a Quality 174 - 121. Consequences of the Dignity of States 175 - 122. Maritime Ceremonials 176 - - IV. _Independence and Territorial and Personal Supremacy_ - - 123. Independence and Territorial as well as Personal - Supremacy as Aspects of Sovereignty 177 - 124. Consequences of Independence and Territorial and Personal - Supremacy 178 - 125. Violations of Independence and Territorial and Personal - Supremacy 179 - 126. Restrictions upon Independence 180 - 127. Restrictions upon Territorial Supremacy 182 - 128. Restrictions upon Personal Supremacy 183 - - V. _Self-preservation_ - - 129. Self-preservation an excuse for violations 184 - 130. What acts of self-preservation are excused 185 - 131. Case of the Danish Fleet (1807) 186 - 132. Case of Amelia Island 186 - 133. Case of the _Caroline_ 187 - - VI. _Intervention_ - - 134. Conception and Character of Intervention 188 - 135. Intervention by Right 189 - 136. Admissibility of Intervention in default of Right 193 - 137. Intervention in the interest of Humanity 194 - 138. Intervention _de facto_ a Matter of Policy 195 - 139. The Monroe Doctrine 196 - 140. Merits of the Monroe Doctrine 198 - - VII. _Intercourse_ - - 141. Intercourse a presupposition of International - Personality 199 - 142. Consequences of Intercourse as a presupposition of - International Personality 200 - - VIII. _Jurisdiction_ - - 143. Jurisdiction important for the position of the States - within the Family of Nations 201 - 144. Restrictions upon Territorial Jurisdiction 202 - 145. Jurisdiction over Citizens abroad 202 - 146. Jurisdiction on the Open Sea 203 - 147. Criminal Jurisdiction over Foreigners in Foreign States 203 - -CHAPTER III--RESPONSIBILITY OF STATES - - I. _On State Responsibility in General_ - - 148. Nature of State Responsibility 206 - 149. Original and Vicarious State Responsibility 207 - 150. Essential Difference between Original and Vicarious - Responsibility 208 - - II. _State Responsibility for International Delinquencies_ - - 151. Conception of International Delinquencies 209 - 152. Subjects of International Delinquencies 210 - 153. State Organs able to commit International Delinquencies 211 - 154. No International Delinquency without Malice or culpable - Negligence 212 - 155. Objects of International Delinquencies 212 - 156. Legal consequences of International Delinquencies 213 - - III. _State Responsibility for Acts of State Organs_ - - 157. Responsibility varies with Organs concerned 214 - 158. Internationally injurious Acts of Heads of States 214 - 159. Internationally injurious Acts of Members of Governments 215 - 160. Internationally injurious Acts of Diplomatic Envoys 215 - 161. Internationally injurious Attitudes of Parliaments 216 - 162. Internationally injurious Acts of Judicial Functionaries 216 - 163. Internationally injurious Acts of administrative - Officials and Military and Naval Forces 218 - - IV. _State Responsibility for Acts of Private Persons_ - - 164. Vicarious in contradistinction to Original State - Responsibility for Acts of Private Persons 221 - 165. Vicarious responsibility for Acts of Private Persons - relative only 222 - 166. Municipal Law for Offences against Foreign States 222 - 167. Responsibility for Acts of Insurgents and Rioters 222 - - -PART II--_THE OBJECTS OF THE LAW OF NATIONS_ - -CHAPTER I--STATE TERRITORY - - I. _On State Territory in General_ - - 168. Conception of State Territory 229 - 169. Different kinds of Territory 230 - 170. Importance of State Territory 231 - 171. One Territory, one State 231 - - II. _The different Parts of State Territory_ - - 172. Real and Fictional Parts of Territory 235 - 173. Territorial Subsoil 235 - 174. Territorial Atmosphere 236 - 175. Inalienability of Parts of Territory 238 - - III. _Rivers_ - - 176. Rivers State Property of Riparian States 239 - 177. Navigation on National, Boundary, and not-National - Rivers 240 - 178. Navigation on International Rivers 241 - 178_a_. Utilisation of the Flow of Rivers 243 - - IV. _Lakes and Land-locked Seas_ - - 179. Lakes and Land-locked Seas State Property of Riparian - States 245 - 180. So-called International Lakes and Land-locked Seas 246 - 181. The Black Sea 247 - - V. _Canals_ - - 182. Canals State Property of Riparian States 248 - 183. The Suez Canal 249 - 184. The Panama Canal 251 - - VI. _Maritime Belt_ - - 185. State Property of Maritime Belt contested 255 - 186. Breadth of Maritime Belt 256 - 187. Fisheries, Cabotage, Police, and Maritime Ceremonials - within the Belt 257 - 188. Navigation within the Belt 258 - 189. Jurisdiction within the Belt 260 - 190. Zone for Revenue and Sanitary Laws 261 - - VII. _Gulfs and Bays_ - - 191. Territorial Gulfs and Bays 262 - 192. Non-territorial Gulfs and Bays 263 - 193. Navigation and Fishery in Territorial Gulfs and Bays 265 - - VIII. _Straits_ - - 194. What Straits are Territorial 265 - 195. Navigation, Fishery, and Jurisdiction in Straits 266 - 196. The former Sound Dues 267 - 197. The Bosphorus and Dardanelles 268 - - IX. _Boundaries of State Territory_ - - 198. Natural and Artificial Boundaries 270 - 199. Boundary Waters 270 - 200. Boundary Mountains 272 - 201. Boundary Disputes 272 - 202. Natural Boundaries _sensu politico_ 273 - - X. _State Servitudes_ - - 203. Conception of State Servitudes 273 - 204. Subjects of State Servitudes 276 - 205. Object of State Servitudes 276 - 206. Different kinds of State Servitudes 278 - 207. Validity of State Servitudes 279 - 208. Extinction of State Servitudes 280 - - XI. _Modes of acquiring State Territory_ - - 209. Who can acquire State Territory? 281 - 210. Former Doctrine concerning Acquisition of Territory 282 - 211. What Modes of Acquisition of Territory there are 283 - 212. Original and derivative Modes of Acquisition 284 - - XII. _Cession_ - - 213. Conception of Cession of State Territory 285 - 214. Subjects of Cession 285 - 215. Object of Cession 286 - 216. Form of Cession 286 - 217. Tradition of the ceded Territory 288 - 218. Veto of third Powers 289 - 219. Plebiscite and Option 289 - - XIII. _Occupation_ - - 220. Conception of Occupation 291 - 221. Object of Occupation 292 - 222. Occupation how effected 292 - 223. Inchoate Title of Discovery 294 - 224. Notification of Occupation to other Powers 294 - 225. Extent of Occupation 295 - 226. Protectorate as Precursor of Occupation 296 - 227. Spheres of influence 297 - 228. Consequences of Occupation 298 - - XIV. _Accretion_ - - 229. Conception of Accretion 299 - 230. Different kinds of Accretion 299 - 231. Artificial formations 299 - 232. Alluvions 300 - 233. Deltas 300 - 234. New-born Islands 301 - 235. Abandoned River-beds 302 - - XV. _Subjugation_ - - 236. Conception of Conquest and of Subjugation 302 - 237. Subjugation in Contradistinction to Occupation 303 - 238. Justification of Subjugation as a Mode of Acquisition 304 - 239. Subjugation of the whole or of a part of Enemy Territory 304 - 240. Consequences of Subjugation 305 - 241. Veto of third Powers 307 - - XVI. _Prescription_ - - 242. Conception of Prescription 308 - 243. Prescription how effected 309 - - XVII. _Loss of State Territory_ - - 244. Six modes of losing State Territory 311 - 245. Operation of Nature 312 - 246. Revolt 312 - 247. Dereliction 313 - -CHAPTER II--THE OPEN SEA - - I. _Rise of the Freedom of the Open Sea_ - - 248. Former Claims to Control over the Sea 315 - 249. Practical Expression of claims to Maritime Sovereignty 317 - 250. Grotius's Attack on Maritime Sovereignty 318 - 251. Gradual recognition of the Freedom of the Open Sea 319 - - II. _Conception of the Open Sea_ - - 252. Discrimination between Open Sea and Territorial Waters 321 - 253. Clear Instances of Parts of the Open Sea 322 - - III. _The Freedom of the Open Sea_ - - 254. Meaning of the Term "Freedom of the Open Sea" 323 - 255. Legal Provisions for the Open Sea 324 - 256. Freedom of the Open Sea and War 325 - 257. Navigation and ceremonials on the Open Sea 326 - 258. Claim of States to Maritime Flag 326 - 259. Rationale for the Freedom of the Open Sea 327 - - IV. _Jurisdiction on the Open Sea_ - - 260. Jurisdiction on the Open Sea mainly connected with Flag 329 - 261. Claim of Vessels to sail under a certain Flag 329 - 262. Ship Papers 331 - 263. Names of Vessels 332 - 264. Territorial Quality of Vessels on the Open Sea 332 - 265. Safety of Traffic on the Open Sea 333 - 266. Powers of Men-of-war over Merchantmen of all Nations 335 - 267. How Verification of Flag is effected 337 - 268. How Visit is effected 337 - 269. How Search is effected 338 - 270. How Arrest is effected 338 - 271. Shipwreck and Distress on the Open Sea 339 - - V. _Piracy_ - - 272. Conception of Piracy 340 - 273. Private Ships as Subjects of Piracy 341 - 274. Mutinous Crew and Passengers as Subjects of Piracy 343 - 275. Object of Piracy 344 - 276. Piracy, how effected 344 - 277. Where Piracy can be committed 345 - 278. Jurisdiction over Pirates and their Punishment 345 - 279. _Pirata non mutat dominium_ 346 - 280. Piracy according to Municipal Law 347 - - VI. _Fisheries in the Open Sea_ - - 281. Fisheries in the Open Sea free to all Nations 348 - 282. Fisheries in the North Sea 349 - 283. Bumboats in the North Sea 351 - 284. Seal Fisheries in Behring Sea 351 - 285. Fisheries around the Faroee Islands and Iceland 353 - - VII. _Telegraph Cables in the Open Sea_ - - 286. Telegraph Cables in the Open Sea admitted 353 - 287. International Protection of Submarine Telegraph Cables 354 - - VIII. _Wireless Telegraphy on the Open Sea_ - - 287_a_. Radiotelegraphy between Ships and the Shore 355 - 287_b_. Radiotelegraphy between Ships at Sea 356 - - IX. _The Subsoil beneath the Sea Bed_ - - 287_c_. Five Rules concerning the Subsoil beneath the Sea Bed 357 - 287_d_. The Proposed Channel Tunnel 359 - -CHAPTER III--INDIVIDUALS - - I. _Position of Individuals in International Law_ - - 288. Importance of Individuals to the Law of Nations 362 - 289. Individuals never Subjects of the Law of Nations 362 - 290. Individuals Objects of the Law of Nations 365 - 291. Nationality the Link between Individuals and the Law of - Nations 366 - 292. The Law of Nations and the Rights of Mankind 367 - - II. _Nationality_ - - 293. Conception of Nationality 369 - 294. Function of Nationality 370 - 295. So-called _Proteges_ and _de facto_ Subjects 371 - 296. Nationality and Emigration 373 - - III. _Modes of Acquiring and Losing Nationality_ - - 297. Five Modes of Acquisition of Nationality 374 - 298. Acquisition of Nationality by Birth 375 - 299. Acquisition of Nationality through Naturalisation 375 - 300. Acquisition of Nationality through Redintegration 376 - 301. Acquisition of Nationality through Subjugation and - Cession 377 - 302. Seven Modes of losing Nationality 377 - - IV. _Naturalisation in Especial_ - - 303. Conception and Importance of Naturalisation 379 - 304. Object of Naturalisation 380 - 305. Conditions of Naturalisation 380 - 306. Effect of Naturalisation upon previous Citizenship 381 - 307. Naturalisation in Great Britain 382 - - V. _Double and Absent Nationality_ - - 308. Possibility of Double and Absent Nationality 383 - 309. How Double Nationality occurs 384 - 310. Position of Individuals with Double Nationality 385 - 311. How Absent Nationality occurs 387 - 312. Position of Individuals destitute of Nationality 387 - 313. Redress against Difficulties arising from Double and - Absent Nationality 388 - - VI. _Reception of Aliens and Right of Asylum_ - - 314. No Obligation to admit Aliens 390 - 315. Reception of Aliens under conditions 392 - 316. So-called Right of Asylum 392 - - VII. _Position of Aliens after Reception_ - - 317. Aliens subjected to Territorial Supremacy 393 - 318. Aliens in Eastern Countries 395 - 319. Aliens under the Protection of their Home State 395 - 320. Protection to be afforded to Aliens' Persons and - Property 397 - 321. How far Aliens can be treated according to Discretion 397 - 322. Departure from the Foreign Country 398 - - VIII. _Expulsion of Aliens_ - - 323. Competence to expel Aliens 399 - 324. Just Causes of Expulsion of Aliens 400 - 325. Expulsion how effected 402 - 326. Reconduction in Contradistinction to Expulsion 402 - - IX. _Extradition_ - - 327. Extradition no legal duty 403 - 328. Extradition Treaties how arisen 404 - 329. Municipal Extradition Laws 405 - 330. Object of Extradition 407 - 331. Extraditable Crimes 408 - 332. Effectuation and Condition of Extradition 409 - - X. _Principle of Non-Extradition of Political Criminals_ - - 333. How Non-extradition of Political Criminals became the - Rule 411 - 334. Difficulty concerning the Conception of Political Crime 414 - 335. The so-called Belgian _Attentat_ Clause 416 - 336. The Russian Project of 1881 416 - 337. The Swiss Solution of the Problem in 1892 417 - 338. Rationale for the Principle of Non-extradition of - Political Criminals 418 - 339. How to avoid Misapplication of the Principle of - Non-extradition of Political Criminals 420 - 340. Reactionary Extradition Treaties 422 - - -PART III--_ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS_ - -CHAPTER I--HEADS OF STATES AND FOREIGN OFFICES - - I. _Position of Heads of States according to International Law_ - - 341. Necessity of a Head for every State 425 - 342. Recognition of Heads of States 425 - 343. Competence of Heads of States 426 - 344. Heads of States Objects of the Law of Nations 427 - 345. Honours and Privileges of Heads of States 428 - - II. _Monarchs_ - - 346. Sovereignty of Monarchs 428 - 347. Consideration due to Monarchs at home 429 - 348. Consideration due to Monarchs abroad 429 - 349. The Retinue of Monarchs abroad 431 - 350. Monarchs travelling incognito 431 - 351. Deposed and Abdicated Monarchs 432 - 352. Regents 432 - 353. Monarchs in the service or subjects of Foreign Powers 432 - - III. _Presidents of Republics_ - - 354. Presidents not Sovereigns 433 - 355. Position of Presidents in general 434 - 356. Position of Presidents abroad 434 - - IV. _Foreign Offices_ - - 357. Position of the Secretary for Foreign Affairs 435 - -CHAPTER II--DIPLOMATIC ENVOYS - - I. _The Institution of Legation_ - - 358. Development of Legations 437 - 359. Diplomacy 438 - - II. _Right of Legation_ - - 360. Conception of Right of Legation 440 - 361. What States possess the Right of Legation 441 - 362. Right of Legation by whom exercised 442 - - III. _Kinds and Classes of Diplomatic Envoys_ - - 363. Envoys Ceremonial and Political 443 - 364. Classes of Diplomatic Envoys 443 - 365. Ambassadors 444 - 366. Ministers Plenipotentiary and Envoys Extraordinary 445 - 367. Ministers Resident 445 - 368. Charges d'Affaires 445 - 369. The Diplomatic Corps 446 - - IV. _Appointment of Diplomatic Envoys_ - - 370. Person and Qualification of the Envoy 446 - 371. Letter of Credence, Full Powers, Passports 447 - 372. Combined Legations 448 - 373. Appointment of several Envoys 448 - - V. _Reception of Diplomatic Envoys_ - - 374. Duty to receive Diplomatic Envoys 449 - 375. Refusal to receive a certain Individual 450 - 376. Mode and Solemnity of Reception 451 - 377. Reception of Envoys to Congresses and Conferences 452 - - VI. _Functions of Diplomatic Envoys_ - - 378. On Diplomatic Functions in general 453 - 379. Negotiation 453 - 380. Observation 454 - 381. Protection 454 - 382. Miscellaneous Functions 454 - 383. Envoys not to interfere in Internal Politics 455 - - VII. _Position of Diplomatic Envoys_ - - 384. Diplomatic Envoys objects of International Law 455 - 385. Privileges due to Diplomatic Envoys 456 - - VIII. _Inviolability of Diplomatic Envoys_ - - 386. Protection due to Diplomatic Envoys 457 - 387. Exemption from Criminal Jurisdiction 458 - 388. Limitation of Inviolability 459 - - IX. _Exterritoriality of Diplomatic Envoys_ - - 389. Reason and Fictional Character of Exterritoriality 460 - 390. Immunity of Domicile 461 - 391. Exemption from Criminal and Civil Jurisdiction 464 - 392. Exemption from Subpoena as witness 465 - 393. Exemption from Police 466 - 394. Exemption from Taxes and the like 467 - 395. Right of Chapel 467 - 396. Self-jurisdiction 468 - - X. _Position of Diplomatic Envoys as regards Third States_ - - 397. Possible Cases 469 - 398. Envoy travelling through Territory of third State 469 - 399. Envoy found by Belligerent on occupied Enemy Territory 471 - 400. Envoy interfering with affairs of a third State 472 - - XI. _The Retinue of Diplomatic Envoys_ - - 401. Different Classes of Members of Retinue 472 - 402. Privileges of Members of Legation 473 - 403. Privileges of Private Servants 474 - 404. Privileges of Family of Envoy 474 - 405. Privileges of Couriers of Envoy 475 - - XII. _Termination of Diplomatic Mission_ - - 406. Termination in contradistinction to Suspension 476 - 407. Accomplishment of Object of Mission 476 - 408. Expiration of Letter of Credence 477 - 409. Recall 477 - 410. Promotion to a higher Class 478 - 411. Delivery of Passports 478 - 412. Request for Passports 478 - 413. Outbreak of War 479 - 414. Constitutional Changes 479 - 415. Revolutionary Changes of Government 479 - 416. Extinction of sending or receiving State 480 - 417. Death of Envoy 480 - -CHAPTER III--CONSULS - - I. _The Institution of Consuls_ - - 418. Development of the Institution of Consuls 482 - 419. General Character of Consuls 484 - - II. _Consular Organisation_ - - 420. Different kinds of Consuls 485 - 421. Consular Districts 485 - 422. Different classes of Consuls 486 - 423. Consuls subordinate to Diplomatic Envoys 487 - - III. _Appointment of Consuls_ - - 424. Qualification of Candidates 487 - 425. No State obliged to admit Consuls 488 - 426. What kind of States can appoint Consuls 488 - 427. Mode of Appointment and of Admittance 489 - 428. Appointment of Consuls includes Recognition 489 - - IV. _Functions of Consuls_ - - 429. On Consular Functions in general 490 - 430. Fosterage of Commerce and Industry 491 - 431. Supervision of Navigation 491 - 432. Protection 492 - 433. Notarial Functions 492 - - V. _Position and Privileges of Consuls_ - - 434. Position 493 - 435. Consular Privileges 494 - - VI. _Termination of Consular Office_ - - 436. Undoubted Causes of Termination 496 - 437. Doubtful Causes of Termination 496 - 438. Change in the Headship of States no cause of Termination 496 - - VII. _Consuls in non-Christian States_ - - 439. Position of Consuls in non-Christian States 497 - 440. Consular Jurisdiction in non-Christian States 498 - 441. International Courts in Egypt 498 - 442. Exceptional Character of Consuls in non-Christian States 499 - -CHAPTER IV--MISCELLANEOUS AGENCIES - - I. _Armed Forces on Foreign Territory_ - - 443. Armed Forces State Organs 500 - 444. Occasions for Armed Forces abroad 500 - 445. Position of Armed Forces abroad 501 - 446. Case of McLeod 501 - 446_a_. The Casa Blanca incident 502 - - II. _Men-of-war in Foreign Waters_ - - 447. Men-of-war State Organs 504 - 448. Proof of Character as Men-of-war 505 - 449. Occasions for Men-of-war abroad 505 - 450. Position of Men-of-war in foreign waters 506 - 451. Position of Crew when on Land abroad 508 - - III. _Agents without Diplomatic or Consular Character_ - - 452. Agents lacking diplomatic or consular character 509 - 453. Public Political Agents 509 - 454. Secret Political Agents 510 - 455. Spies 510 - 456. Commissaries 511 - 457. Bearers of Despatches 511 - - IV. _International Commissions_ - - 458. Permanent in Contradistinction to Temporary - Commissions 512 - 459. Commissions in the interest of Navigation 513 - 460. Commissions in the interest of Sanitation 515 - 461. Commissions in the interest of Foreign Creditors 515 - 462. Permanent Commission concerning Sugar 515 - - V. _International Offices_ - - 463. Character of International Offices 515 - 464. International Telegraph Offices 516 - 465. International Post Office 516 - 466. International Office of Weights and Measures 516 - 467. International Office for the Protection of Works of - Literature and Art and of Industrial Property 516 - 467_a_. The Pan-American Union 517 - 468. Maritime Office at Zanzibar and Bureau Special at - Brussels 517 - 469. International Office of Customs Tariffs 517 - 470. Central Office of International Transports 517 - 471. Permanent Office of the Sugar Convention 517 - 471_a_. Agricultural Institute 518 - 471_b_. International Health Office 518 - - VI. _The International Court of Arbitration_ - - 472. Organisation of Court in General 518 - 473. The Permanent Council 518 - 474. The International Bureau 519 - 475. The Court of Arbitration 519 - 476. The Deciding Tribunal 520 - - VII. _The International Prize Court and the proposed International - Court of Justice_ - - 476_a_. The International Prize Court 522 - 476_b_. The proposed International Court of Justice 524 - - -PART IV--_INTERNATIONAL TRANSACTIONS_ - -CHAPTER I--ON INTERNATIONAL TRANSACTIONS IN GENERAL - - I. _Negotiation_ - - 477. Conception of Negotiation 529 - 478. Parties to Negotiation 529 - 479. Purpose of Negotiation 530 - 480. Negotiations by whom conducted 531 - 481. Form of Negotiation 531 - 482. End and Effect of Negotiation 532 - - II. _Congresses and Conferences_ - - 483. Conception of Congresses and Conferences 533 - 484. Parties to Congresses and Conferences 534 - 485. Procedure at Congresses and Conferences 535 - - III. _Transactions besides Negotiation_ - - 486. Different kinds of Transaction 536 - 487. Declaration 536 - 488. Notification 537 - 489. Protest 538 - 490. Renunciation 539 - -CHAPTER II--TREATIES - - I. _Character and Function of Treaties_ - - 491. Conception of Treaties 540 - 492. Different kinds of Treaties 540 - 493. Binding Force of Treaties 541 - - II. _Parties to Treaties_ - - 494. The Treaty-making Power 543 - 495. Treaty-making Power exercised by Heads of States 544 - 496. Minor Functionaries exercising Treaty-making Power 545 - 497. Constitutional Restrictions 545 - 498. Mutual Consent of the Contracting Parties 546 - 499. Freedom of Action of Consenting Representatives 547 - 500. Delusion and Error in Contracting Parties 547 - - III. _Objects of Treaties_ - - 501. Objects in general of Treaties 548 - 502. Obligations of Contracting Parties only can be Object 548 - 503. An Obligation inconsistent with other Obligations cannot - be an Object 549 - 504. Object must be physically possible 549 - 505. Immoral Obligations 549 - 506. Illegal Obligations 550 - - IV. _Form and Parts of Treaties_ - - 507. No necessary Form of Treaties 550 - 508. Acts, Conventions, Declarations 551 - 509. Parts of Treaties 552 - - V. _Ratification of Treaties_ - - 510. Conception and Function of Ratification 553 - 511. Rationale for the Institution of Ratification 554 - 512. Ratification regularly, but not absolutely, necessary 554 - 513. Length of Time for Ratification 555 - 514. Refusal of Ratification 556 - 515. Form of Ratification 557 - 516. Ratification by whom effected 558 - 517. Ratification cannot be partial and conditional 559 - 518. Effect of Ratification 561 - - VI. _Effect of Treaties_ - - 519. Effect of Treaties upon Contracting Parties 561 - 520. Effect of Treaties upon the Subjects of the Parties 562 - 521. Effect of Changes in Government upon Treaties 562 - 522. Effect of Treaties upon Third States 563 - - VII. _Means of Securing Performance of Treaties_ - - 523. What means have been in use 565 - 524. Oaths 565 - 525. Hostages 566 - 526. Pledge 566 - 527. Occupation of Territory 566 - 528. Guarantee 567 - - VIII. _Participation of Third States in Treaties_ - - 529. Interest and Participation to be distinguished 567 - 530. Good Offices and Mediation 568 - 531. Intervention 568 - 532. Accession 568 - 533. Adhesion 569 - - IX. _Expiration and Dissolution of Treaties_ - - 534. Expiration and Dissolution in Contradistinction to - Fulfilment 570 - 535. Expiration through Expiration of Time 570 - 536. Expiration through Resolutive Condition 571 - 537. Mutual Consent 571 - 538. Withdrawal by Notice 571 - 539. Vital Change of Circumstances 572 - - X. _Voidance of Treaties_ - - 540. Grounds of Voidance 576 - 541. Extinction of one of the two Contracting Parties 576 - 542. Impossibility of Execution 577 - 543. Realisation of Purpose of Treaty other than by - Fulfilment 577 - 544. Extinction of such Object as was concerned in a Treaty 577 - - XI. _Cancellation of Treaties_ - - 545. Grounds of Cancellation 578 - 546. Inconsistency with subsequent International Law 578 - 547. Violation by one of the Contracting Parties 579 - 548. Subsequent Change of Status of one of the Contracting - Parties 579 - 549. War 580 - - XII. _Renewal, Reconfirmation, and Redintegration of Treaties_ - - 550. Renewal of Treaties 580 - 551. Reconfirmation 581 - 552. Redintegration 581 - - XIII. _Interpretation of Treaties_ - - 553. Authentic Interpretation, and the Compromise Clause 582 - 554. Rules of Interpretation which recommend themselves 583 - -CHAPTER III--IMPORTANT GROUPS OF TREATIES - - I. _Important Law-making Treaties_ - - 555. Important Law-making Treaties a product of the - Nineteenth Century 587 - 556. Final Act of the Vienna Congress 588 - 557. Protocol of the Congress of Aix-la-Chapelle 588 - 558. Treaty of London of 1831 588 - 559. Declaration of Paris 588 - 560. Geneva Convention 589 - 561. Treaty of London of 1867 589 - 562. Declaration of St. Petersburg 590 - 563. Treaty of Berlin of 1878 590 - 564. General Act of the Congo Conference 590 - 565. Treaty of Constantinople of 1888 591 - 566. General Act of the Brussels Anti-Slavery Conference 591 - 567. Two Declarations of the First Hague Peace Conference 591 - 568. Treaty of Washington of 1901 592 - 568_a_. Conventions and Declaration of the Second Hague Peace - Conference 592 - 568_b_. The Declaration of London 595 - - II. _Alliances_ - - 569. Conception of Alliances 595 - 570. Parties to Alliances 597 - 571. Different kinds of Alliances 597 - 572. Conditions of Alliances 598 - 573. _Casus Foederis_ 599 - - III. _Treaties of Guarantee and of Protection_ - - 574. Conception and Objects of Guarantee Treaties 599 - 575. Effect of Treaties of Guarantee 600 - 576. Effect of Collective Guarantee 601 - 576_a_. Pseudo-Guarantees 602 - 577. Treaties of Protection 604 - - IV. _Commercial Treaties_ - - 578. Commercial Treaties in General 605 - 579. Meaning of Coasting-trade in Commercial Treaties 606 - 580. Meaning of Most-favoured-nation Clause 610 - - V. _Unions Concerning Common Non-Political Interests_ - - 581. Object of the Unions 612 - 582. Post and Telegraphs 613 - 583. Transport and Communication 614 - 584. Copyright 615 - 585. Commerce and Industry 616 - 586. Agriculture 617 - 587. Welfare of Working Classes 618 - 588. Weights, Measures, Coinage 619 - 589. Official Publications 620 - 590. Sanitation 620 - 591. Pharmacopoeia 622 - 592. Humanity 622 - 593. Preservation of Animal World 623 - 594. Private International Law 623 - 595. American Republics 624 - 596. Science 625 - - -INDEX 627 - - - - -INTRODUCTION - -FOUNDATION AND DEVELOPMENT OF THE LAW OF NATIONS - - - - -CHAPTER I - -FOUNDATION OF THE LAW OF NATIONS - - -I - -THE LAW OF NATIONS AS LAW - - Hall, pp. 14-16--Maine, pp. 50-53--Lawrence, [p][p] 1-3, and - Essays, pp. 1-36--Phillimore, I. [p][p] 1-12--Twiss, I. [p][p] - 104-5--Taylor, [p] 2--Moore, I. [p][p] 1-2--Westlake, I. pp. - 1-13--Walker, History, I. [p][p] 1-8--Halleck, I. pp. - 46-55--Ullmann, [p][p] 2-4--Heffter, [p][p] 1-5--Holtzendorff in - Holtzendorff, I. pp. 19-26--Nys, I. pp. 133-43--Rivier, I. [p] - 1--Bonfils, Nos. 26-31--Pradier-Fodere, I. Nos. 1-24--Merignhac, - I. pp. 5-28--Martens, I. [p][p] 1-5--Fiore, I. Nos. 186-208, and - Code, Nos. 1-26--Higgins, "The Binding Force of International Law" - (1910)--Pollock in _The Law Quarterly Review_, XVIII. (1902), pp. - 418-428--Scott in A.J. I. (1907), pp. 831-865--Willoughby and Root - in A.J. II. (1908), pp. 357-365 and 451-457. - -[Sidenote: Conception of the Law of Nations.] - -[p] 1. Law of Nations or International Law (_Droit des gens_, -_Voelkerrecht_) is the name for the body of customary and conventional -rules which are considered legally[1] binding by civilised States in -their intercourse with each other. Such part of these rules as is -binding upon all the civilised States without exception is called -_universal_ International Law,[2] in contradistinction to _particular_ -International Law, which is binding on two or a few States only. But it -is also necessary to distinguish _general_ International Law. This name -must be given to the body of such rules as are binding upon a great many -States, including leading Powers. General International Law, as, for -instance, the Declaration of Paris of 1856, has a tendency to become -universal International Law. - -[Footnote 1: In contradistinction to mere usages and to rules of -so-called International Comity, see below [p][p] 9 and 19.] - -[Footnote 2: The best example of universal International Law is the law -connected with legation.] - -International Law in the meaning of the term as used in modern times did -not exist during antiquity and the first part of the Middle Ages. It is -in its origin essentially a product of Christian civilisation, and began -gradually to grow from the second half of the Middle Ages. But it owes -its existence as a systematised body of rules to the Dutch jurist and -statesman Hugo Grotius, whose work, "De Jure Belli ac Pacis libri III.," -appeared in 1625 and became the foundation of all later development. - -The Law of Nations is a law for the intercourse of States with one -another, not a law for individuals. As, however, there cannot be a -sovereign authority above the several sovereign States, the Law of -Nations is a law _between_, not above, the several States, and is, -therefore, since Bentham, also called "International Law." - -Since the distinction of Bentham between International Law public and -private has been generally accepted, it is necessary to emphasise that -only the so-called public International Law, which is identical with the -Law of Nations, is International Law, whereas the so-called private -International Law is not. The latter concerns such matters as fall at -the same time under the jurisdiction of two or more different States. -And as the Municipal Laws of different States are frequently in conflict -with each other respecting such matters, jurists belonging to different -countries endeavour to find a body of principles according to which such -conflicts can be avoided. - -[Sidenote: Legal Force of the Law of Nations contested.] - -[p] 2. Almost from the beginning of the science of the Law of Nations the -question has been discussed whether the rules of International Law are -_legally_ binding. Hobbes[3] already and Pufendorf[4] had answered the -question in the negative. And during the nineteenth century Austin[5] -and his followers take up the same attitude. They define law as a body -of rules for human conduct set and enforced by a sovereign political -authority. If indeed this definition of law be correct, the Law of -Nations cannot be called law. For International Law is a body of rules -governing the relations of Sovereign States between one another. And -there is not and cannot be a sovereign political authority above the -Sovereign States which could enforce such rules. However, this -definition of law is not correct. It covers only the written or statute -law within a State, that part of the Municipal Law which is expressly -made by statutes of Parliament in a constitutional State or by some -other sovereign authority in a non-constitutional State. It does not -cover that part of Municipal Law which is termed unwritten or customary -law. There is, in fact, no community and no State in the world which -could exist with written law only. Everywhere there is customary law in -existence besides the written law. This customary law was never -expressly enacted by any law-giving body, or it would not be merely -customary law. Those who define law as rules set and enforced by a -sovereign political authority do not deny the existence of customary -law. But they maintain that the customary law has the character of law -only through the indirect recognition on the part of the State which is -to be found in the fact that courts of justice apply the customary in -the same way as the written law, and that the State does not prevent -them from doing so. This is, however, nothing else than a fiction. -Courts of justice having no law-giving power could not recognise -unwritten rules as law if these rules were not law before that -recognition, and States recognise unwritten rules as law only because -courts of justice do so. - -[Footnote 3: De Cive, XIV. 4.] - -[Footnote 4: De Jure Naturae et Gentium, II. c. iii. [p] 22.] - -[Footnote 5: Lectures on Jurisprudence, VI.] - -[Sidenote: Characteristics of Rules of Law.] - -[p] 3. For the purpose of finding a correct definition of law it is -indispensable to compare morality and law with each other, for both lay -down rules, and to a great extent the same rules, for human conduct. Now -the characteristic of rules of morality is that they apply to -conscience, and to conscience only. An act loses all value before the -tribunal of morality, if it was not done out of free will and -conscientiousness, but was enforced by some external power or was done -out of some consideration which lies without the boundaries of -conscience. Thus, a man who gives money to the hospitals in order that -his name shall come before the public does not act morally, and his deed -is not a moral one, though it appears to be one outwardly. On the other -hand, the characteristic of rules of law is that they shall eventually -be enforced by external power.[6] Rules of law apply, of course, to -conscience quite as much as rules of morality. But the latter require to -be enforced by the internal power of conscience only, whereas the former -require to be enforced by some external power. When, to give an -illustrative example, morality commands you to pay your debts, it hopes -that your conscience will make you pay them. On the other hand, if the -law gives the same command, it hopes that, if the conscience has not -sufficient power to make you pay your debts, the fact that, if you will -not pay, the bailiff will come into your house, will do so. - -[Footnote 6: Westlake, Chapters, p. 12, seems to make the same -distinction between rules of law and of morality, and Twiss, I. [p] 105, -adopts it _expressis verbis_.] - -[Sidenote: Law-giving Authority not essential for the Existence of Law.] - -[p] 4. If these are the characteristic signs of morality and of law, we -are justified in stating the principle: A rule is a rule of morality, if -by common consent of the community it applies to conscience and to -conscience only; whereas, on the other hand, a rule is a rule of law, if -by common consent of the community it shall eventually be enforced by -external power. Without some kind both of morality and law, no -community has ever existed or could possibly exist. But there need not -be, at least not among primitive communities, a law-giving authority -within a community. Just as the rules of morality are growing through -the influence of many different factors, so the law can grow without -being expressly laid down and set by a law-giving authority. Wherever we -have an opportunity of observing a primitive community, we find that -some of its rules for human conduct apply to conscience only, whereas -others shall by common consent of the community be enforced; the former -are rules of morality only, whereas the latter are rules of law. For the -existence of law neither a law-giving authority nor courts of justice -are essential. Whenever a question of law arises in a primitive -community, it is the community itself and not a court which decides it. -Of course, when a community is growing out of the primitive condition of -its existence and becomes gradually so enlarged that it turns into a -State in the sense proper of the term, the necessities of life and -altered circumstances of existence do not allow the community itself any -longer to do anything and everything. And the law can now no longer be -left entirely in the hands of the different factors which make it grow -gradually from case to case. A law-giving authority is now just as much -wanted as a governing authority. It is for this reason that we find in -every State a Legislature, which makes laws, and courts of justice, -which administer them. - -However, if we ask whence does the power of the legislature to make laws -come, there is no other answer than this: From the common consent of the -community. Thus, in Great Britain, Parliament is the law-making body by -common consent. An Act of Parliament is law, because the common consent -of Great Britain is behind it. That Parliament has law-making authority -is law itself, but unwritten and customary law. _Thus the very important -fact comes to light that all statute or written law is based on -unwritten law in so far as the power of Parliament to make Statute Law -is given to Parliament by unwritten law._ It is the common consent of -the British people that Parliament shall have the power of making rules -which shall be enforced by external power. But besides the statute laws -made by Parliament there exist and are constantly growing other laws, -unwritten or customary, which are day by day recognised through courts -of justice. - -[Sidenote: Definition and three Essential Conditions of Law.] - -[p] 5. On the basis of the results of these previous investigations we are -now able to give a definition of law. We may say that _law is a body of -rules for human conduct within a community which by common consent of -this community shall be enforced by external power_. - -The essential conditions of the existence of law are, therefore, -threefold. There must, first, be a community. There must, secondly, be a -body of rules for human conduct within that community. And there must, -thirdly, be a common consent of that community that these rules shall be -enforced by external power. It is not an essential condition either that -such rules of conduct must be written rules, or that there should be a -law-making authority or a law-administering court within the community -concerned. And it is evident that, if we find this definition of law -correct, and accept these three essential conditions of law, the -existence of law is not limited to the State community only, but is to -be found everywhere where there is a community. The best example of the -existence of law outside the State is the law of the Roman Catholic -Church, the so-called Canon Law. This Church is an organised community -whose members are dispersed over the whole surface of the earth. They -consider themselves bound by the rules of the Canon Law, although there -is no sovereign political authority that sets and enforces those rules, -the Pope and the bishops and priests being a religious authority only. -But there is an external power through which the rules of the Canon Law -are enforced--namely, the punishments of the Canon Law, such as -excommunication, refusal of sacraments, and the like. And the rules of -the Canon Law are in this way enforced by common consent of the whole -Roman Catholic community. - -[Sidenote: Law not to be identified with Municipal Law.] - -[p] 6. But it must be emphasised that, if there is law to be found in -every community, law in this meaning must not be identified with the law -of States, the so-called Municipal Law,[7] just as the conception of -State must not be identified with the conception of community. The -conception of community is a wider one than the conception of State. A -State is a community, but not every community is a State. Likewise the -conception of law pure and simple is a wider one than that of Municipal -Law. Municipal Law is law, but not every law is Municipal Law, as, for -instance, the Canon Law is not. Municipal Law is a narrower conception -than law pure and simple. The body of rules which is called the Law of -Nations might, therefore, be law in the strict sense of the term, -although it might not possess the characteristics of Municipal Law. To -make sure whether the Law of Nations is or is not law, we have to -inquire whether the three essential conditions of the existence of law -are to be found in the Law of Nations. - -[Footnote 7: Throughout this work the term "Municipal Law" is made use -of in the sense of national or State law in contradistinction to -International Law.] - -[Sidenote: The "Family of Nations" a Community.] - -[p] 7. As the first condition is the existence of a community, the -question arises, whether an international community exists whose law -could be the Law of Nations. Before this question can be answered, the -conception of community must be defined. A community may be said to be -the body of a number of individuals more or less bound together through -such common interests as create a constant and manifold intercourse -between the single individuals. This definition of community covers not -only a community of individual men, but also a community of individual -communities such as individual States. A Confederation of States is a -community of States. But is there a universal international community of -all individual States in existence? This question is decidedly to be -answered in the affirmative as far as the States of the civilised world -are concerned. Innumerable are the interests which knit all the -individual civilised States together and which create constant -intercourse between these States as well as between their subjects. As -the civilised States are, with only a few exceptions, Christian States, -there are already religious ideas which wind a band around them. There -are, further, science and art, which are by their nature to a great -extent international, and which create a constant exchange of ideas and -opinions between the subjects of the several States. Of the greatest -importance are, however, agriculture, industry, and trade. It is totally -impossible even for the largest empire to produce everything its -subjects want. Therefore, the productions of agriculture and industry -must be exchanged by the several States, and it is for this reason that -international trade is an unequalled factor for the welfare of every -civilised State. Even in antiquity, when every State tried to be a world -in itself, States did not and could not exist without some sort of -international trade. It is international trade which has created -navigation on the high seas and on the rivers flowing through different -States. It is, again, international trade which has called into -existence the nets of railways which cover the continents, the -international postal and telegraphic arrangements, and the Transatlantic -telegraphic cables.[8] - -[Footnote 8: See Fried, "Das internationale Leben der Gegenwart" (1908), -where the innumerable interests are grouped and discussed which knit the -civilised world together.] - -The manifold interests which knit all the civilised States together and -create a constant intercourse between one another, have long since -brought about the necessity that these States should have one or more -official representatives living abroad. Thus we find everywhere foreign -envoys and consuls. They are the agents who make possible the current -stream of transactions between the Governments of the different States. -A number of International Offices, International Bureaux, International -Commissions have been permanently appointed for the administration of -international business, a permanent Court of Arbitration has been, and -an International Prize Court will soon be, established at the Hague. And -from time to time special international conferences and congresses of -delegates of the different States are convoked for discussing and -settling matters international. Though the individual States are -sovereign and independent of each other, though there is no -international Government above the national ones, though there is no -central political authority to which the different States are subjected, -yet there is something mightier than all the powerful separating -factors: namely, the common interests. And these common interests and -the necessary intercourse which serves these interests, unite the -separate States into an indivisible community. For many hundreds of -years this community has been called "Family of Nations" or "Society of -Nations." - -[Sidenote: The "Family of Nations" a Community with Rules of Conduct.] - -[p] 8. Thus the first essential condition for the existence of law is a -reality. The single States make altogether a body of States, a community -of individual States. But the second condition cannot be denied either. -For hundreds of years more and more rules have grown up for the conduct -of the States between each other. These rules are to a great extent -customary rules. But side by side with these customary and unwritten -rules more and more written rules are daily created by international -agreements, such as the Declaration of Paris of 1856, the Hague Rules -concerning land warfare of 1899 and 1907, and the like. The so-called -Law of Nations is nothing else than a body of customary and conventional -rules regulating the conduct of the individual States with each other. -Just as out of tribal communities which were in no way connected with -each other arose the State, so the Family of Nations arose out of the -different States which were in no way connected with each other. But -whereas the State is a settled institution, firmly established and -completely organised, the Family of Nations is still in the beginning of -its development. A settled institution and firmly established it -certainly is, but it entirely lacks at present any organisation -whatever. Such an organisation is, however, gradually growing into -existence before our eyes. The permanent Court of Arbitration created by -the First Hague Peace Conference, and the International Prize Court -proposed by the Second Hague Peace Conference, are the first small -traces of a future organisation. The next step forward will be that the -Hague Peace Conferences will meet automatically within certain periods -of time, without being summoned by one of the Powers. A second step -forward will be the agreement on the part of the Powers upon fixed rules -of procedure for the future Hague Peace Conferences. As soon as these -two steps forward are really made, the nucleus of an organisation of the -Family of Nations will be in existence, and out of this nucleus will -grow in time a more powerful organisation, the ultimate characteristic -features of which cannot at present be foreseen.[9] - -[Footnote 9: See Oppenheim, "Die Zukunft des Voelkerrechts" (1911), -_passim_.] - -[Sidenote: External Power for the Enforcement of Rules of International -Conduct.] - -[p] 9. But how do matters stand concerning the third essential condition -for the existence of law? Is there a common consent of the community of -States that the rules of international conduct shall be enforced by -external power? There cannot be the slightest doubt that this question -must be affirmatively answered, although there is no central authority -to enforce those rules. The heads of the civilised States, their -Governments, their Parliaments, and public opinion of the whole of -civilised humanity, agree and consent that the body of rules of -international conduct which is called the Law of Nations shall be -enforced by external power, in contradistinction to rules of -international morality and courtesy, which are left to the consideration -of the conscience of nations. And in the necessary absence of a central -authority for the enforcement of the rules of the Law of Nations, the -States have to take the law into their own hands. Self-help and -intervention on the part of other States which sympathise with the -wronged one are the means by which the rules of the Law of Nations can -be[10] and actually are enforced. It is true that these means have many -disadvantages, but they are means which have the character of external -power. Compared with Municipal Law and the means at disposal for its -enforcement, the Law of Nations is certainly the weaker of the two. A -law is the stronger, the more guarantees are given that it can and will -be enforced. Thus, the law of a State which is governed by an uncorrupt -Government and the courts of which are not venal is stronger than the -law of a State which has a corrupt Government and venal judges. It is -inevitable that the Law of Nations must be a weaker law than Municipal -Law, as there is not and cannot be an international Government above the -national ones which could enforce the rules of International Law in the -same way as a national Government enforces the rules of its Municipal -Law. But a weak law is nevertheless still law, and the Law of Nations is -by no means so weak a law as it sometimes seems to be.[11] - -[Footnote 10: See below, [p] 135, concerning intervention by right.] - -[Footnote 11: Those who deny to International Law the character of law -because they identify the conception of law in general with that of -Municipal Law and because they cannot see any law outside the State, -confound cause and effect. Originally law was not a product of the -State, but the State was a product of law. The right of the State to -make law is based upon the rule of law that the State is competent to -make law.] - -[Sidenote: Practice recognises Law of Nations as Law.] - -[p] 10. The fact is that theorists only are divided concerning the -character of the Law of Nations as real law. In practice International -Law is constantly recognised as law. The Governments and Parliaments of -the different States are of opinion that they are legally, not morally -only, bound by the Law of Nations, although they cannot be forced to go -before a court in case they are accused of having violated it. Likewise, -public opinion of all civilised States considers every State legally -bound to comply with the rules of the Law of Nations, not taking notice -of the opinion of those theorists who maintain that the Law of Nations -does not bear the character of real law. And the several States not only -recognise the rules of International Law as legally binding in -innumerable treaties, but emphasise every day the fact that there is a -law between themselves. They moreover recognise this law by their -Municipal Laws ordering their officials, their civil and criminal -courts, and their subjects to take up such an attitude as is in -conformity with the duties imposed upon their Sovereign by the Law of -Nations. If a violation of the Law of Nations occurs on the part of an -individual State, public opinion of the civilised world, as well as the -Governments of other States, stigmatise such violation as a violation of -law pure and simple. And countless treaties concerning trade, -navigation, post, telegraph, copyright, extradition, and many other -objects exist between civilised States, which treaties, resting entirely -on the existence of a law between the States, presuppose such a law, and -contribute by their very existence to its development and growth. - -Violations of this law are certainly frequent. But the offenders always -try to prove that their acts do not contain a violation, and that they -have a right to act as they do according to the Law of Nations, or at -least that no rule of the Law of Nations is against their acts. Has a -State ever confessed that it was going to break the Law of Nations or -that it ever did so? The fact is that States, in breaking the Law of -Nations, never deny its existence, but recognise its existence through -the endeavour to interpret the Law of Nations in a way favourable to -their act. And there is an ever-growing tendency to bring disputed -questions of International Law as well as international differences in -general before international courts. The permanent Court of Arbitration -at the Hague established in 1899, and the International Prize Court -proposed at the Hague according to a convention of 1907, are the first -promising fruits of this tendency. - - -II - -BASIS OF THE LAW OF NATIONS - -[Sidenote: Common Consent the Basis of Law.] - -[p] 11. If law is, as defined above ([p] 5), a body of rules for human -conduct within a community which by common consent of this community -shall be enforced through external power, common consent is the basis of -all law. What, now, does the term "common consent" mean? If it meant -that all the individuals who are members of a community must at every -moment of their existence expressly consent to every point of law, such -common consent would never be a fact. The individuals, who are the -members of a community, are successively born into it, grow into it -together with the growth of their intellect during adolescence, and die -away successively to make room for others. The community remains -unaltered, although a constant change takes place in its members. -"Common consent" can therefore only mean the express or tacit consent of -such an overwhelming majority of the members that those who dissent are -of no importance whatever, and disappear totally from the view of one -who looks for the will of the community as an entity in -contradistinction to the wills of its single members. The question as to -whether there be such a common consent in a special case, is not a -question of theory, but of fact only. It is a matter of observation and -appreciation, and not of logical and mathematical decision, just as is -the well-known question, how many grains make a heap? Those legal rules -which come down from ancestors to their descendants remain law so long -only as they are supported by common consent of these descendants. New -rules can only become law if they find common consent on the part of -those who constitute the community at the time. It is for that reason -that custom is at the background of all law, whether written or -unwritten. - -[Sidenote: Common Consent of the Family of Nations the Basis of -International Law.] - -[p] 12. What has been stated with regard to law pure and simple applies -also to the Law of Nations. However, the community for which this Law of -Nations is authoritative consists not of individual human beings, but of -individual States. And whereas in communities consisting of individual -human beings there is a constant and gradual change of the members -through birth, death, emigration, and immigration, the Family of -Nations is a community within which no such constant change takes place, -although now and then a member disappears and a new member steps in. The -members of the Family of Nations are therefore not born into that -community and they do not grow into it. New members are simply received -into it through express or tacit recognition. It is therefore necessary -to scrutinise more closely the common consent of the States which is the -basis of the Law of Nations. - -The customary rules of this law have grown up by common consent of the -States--that is, the different States have acted in such a manner as -includes their tacit consent to these rules. As far as the process of -the growth of a usage and its turning into a custom can be traced back, -customary rules of the Law of Nations came into existence in the -following way. The intercourse of States with each other necessitated -some rules of international conduct. Single usages, therefore, gradually -grew up, the different States acting in the same or in a similar way -when an occasion arose. As some rules of international conduct were from -the end of the Middle Ages urgently wanted, the theory of the Law of -Nations prepared the ground for their growth by constructing certain -rules on the basis of religious, moral, rational, and historical -reflections. Hugo Grotius's work, "De Jure Belli ac Pacis libri III." -(1625), offered a systematised body of rules, which recommended -themselves so much to the needs and wants of the time that they became -the basis of the development following. Without the conviction of the -Governments and of public opinion of the civilised States that there -ought to be legally binding rules for international conduct, on the one -hand, and, on the other hand, without the pressure exercised upon the -States by their interests and the necessity for the growth of such -rules, the latter would never have grown up. When afterwards, -especially in the nineteenth century, it became apparent that customs -and usages alone were not sufficient or not sufficiently clear, new -rules were created through law-making treaties being concluded which -laid down rules for future international conduct. Thus conventional -rules gradually grew up side by side with customary rules. - -New States which came into existence and were through express or tacit -recognition admitted into the Family of Nations thereby consented to the -body of rules for international conduct in force at the time of their -admittance. It is therefore not necessary to prove for every single rule -of International Law that every single member of the Family of Nations -consented to it. No single State can say on its admittance into the -Family of Nations that it desires to be subjected to such and such a -rule of International Law, and not to others. The admittance includes -the duty to submit to all the rules in force, with the sole exception of -those which, such as the rules of the Geneva Convention for instance, -are specially stipulated for such States only as have concluded, or -later on acceded to, a certain international treaty creating the rules -concerned. - -On the other hand, no State which is a member of the Family of Nations -can at some time or another declare that it will in future no longer -submit to a certain recognised rule of the Law of Nations. The body of -the rules of this law can be altered by common consent only, not by a -unilateral declaration on the part of one State. This applies not only -to customary rules, but also to such conventional rules as have been -called into existence through a law-making treaty for the purpose of -creating a permanent mode of future international conduct without a -right of the signatory powers to give notice of withdrawal. It would, -for instance, be a violation of International Law on the part of a -signatory Power of the Declaration of Paris of 1856 to declare that it -would cease to be a party. But it must be emphasised that this does not -apply to such conventional rules as are stipulated by a law-making -treaty which expressly reserves the right to the signatory Powers to -give notice. - -[Sidenote: States the Subjects of the Law of Nations.] - -[p] 13. Since the Law of Nations is based on the common consent of -individual States, and not of individual human beings, States solely and -exclusively are the subjects of International Law. This means that the -Law of Nations is a law for the international conduct of States, and not -of their citizens. Subjects of the rights and duties arising from the -Law of Nations are States solely and exclusively. An individual human -being, such as a king or an ambassador for example, is never directly a -subject of International Law. Therefore, all rights which might -necessarily have to be granted to an individual human being according to -the Law of Nations are not international rights, but rights granted by -Municipal Law in accordance with a duty imposed upon the respective -State by International Law. Likewise, all duties which might necessarily -have to be imposed upon individual human beings according to the Law of -Nations are not international duties, but duties imposed by Municipal -Law in accordance with a right granted to or a duty imposed upon the -respective State by International Law. Thus the privileges of an -ambassador are granted to him by the Municipal Law of the State to which -he is accredited, but such State has the duty to grant these privileges -according to International Law. Thus, further, the duties incumbent upon -officials and subjects of neutral States in time of war are imposed upon -them by the Municipal Law of their home States, but these States have, -according to International Law, the duty of imposing the respective -duties upon their officials and citizens.[12] - -[Footnote 12: The importance of the fact that subjects of the Law of -Nations are States exclusively is so great that I consider it necessary -to emphasise it again and again throughout this work. See, for instance, -below, [p][p] 289, 344, 384. It should, however, already be mentioned here -that this assertion is even nowadays still sometimes contradicted; see, -for instance, Kaufmann, "Die Rechtskraft des Internationalen Rechts" -(1899), _passim_; Rehm in Z.V. I. (1907), p. 53; and Diena in R.G. XVI. -pp. 57-76.] - -[Sidenote: Equality an Inference from the Basis of International Law.] - -[p] 14. Since the Law of Nations is based on the common consent of States -as sovereign communities, the member States of the Family of Nations are -equal to each other as subjects of International Law. States are by -their nature certainly not equal as regards power, extent, constitution, -and the like. But as members of the community of nations they are -equals, whatever differences between them may otherwise exist. This is a -consequence of their sovereignty and of the fact that the Law of Nations -is a law between, not above, the States.[13] - -[Footnote 13: See below, [p][p] 115-116, where the legal equality of States -in contradistinction to their political inequality is discussed, and -where it will also be shown that not-full Sovereign States are not -equals of full-Sovereign States.] - - -III - -SOURCES OF THE LAW OF NATIONS - - Hall, pp. 5-14--Maine, pp. 1-25--Lawrence, [p][p] - 61-66--Phillimore, I. [p][p] 17-33--Twiss, I. [p][p] - 82-103--Taylor, [p][p] 30-36--Westlake, I. pp. 14-19--Wheaton, [p] - 15--Halleck, I. pp. 55-64--Ullmann, [p][p] 8-9--Heffter, [p] - 3--Holtzendorff in Holtzendorff, I. pp. 79-158--Rivier, I. [p] - 2--Nys, I. pp. 144-165--Bonfils, Nos. 45-63--Despagnet, Nos. - 58-63--Pradier-Fodere, I. Nos. 24-35--Merignhac, I. pp. - 79-113--Martens, I. [p] 43--Fiore, I. Nos. 224-238--Calvo, I. - [p][p] 27-38--Bergbohm, "Staatsvertraege und Gesetze als Quellen - des Voelkerrechts" (1877)--Jellinek, "Die rechtliche Natur der - Staatsvertraege" (1880)--Cavaglieri, "La consuetudine giuridica - internazionale" (1907). - -[Sidenote: Source in Contradistinction to Cause.] - -[p] 15. The different writers on the Law of Nations disagree widely with -regard to kinds and numbers of sources of this law. The fact is that the -term "source of law" is made use of in different meanings by the -different writers on International Law, as on law in general. It seems -to me that most writers confound the conception of "source" with that of -"cause," and through this mistake come to a standpoint from which -certain factors which influence the growth of International Law appear -as sources of rules of the Law of Nations. This mistake can be avoided -by going back to the meaning of the term "source" in general. Source -means a spring or well, and has to be defined as the rising from the -ground of a stream of water. When we see a stream of water and want to -know whence it comes, we follow the stream upwards until we come to the -spot where it rises naturally from the ground. On that spot, we say, is -the source of the stream of water. We know very well that this source is -not the cause of the existence of the stream of water. Source signifies -only the natural rising of water from a certain spot of the ground, -whatever natural causes there may be for that rising. If we apply the -conception of source in this meaning to the term "source of law," the -confusion of source with cause cannot arise. Just as we see streams of -water running over the surface of the earth, so we see, as it were, -streams of rules running over the area of law. And if we want to know -whence these rules come, we have to follow these streams upwards until -we come to their beginning. Where we find that such rules rise into -existence, there is the source of them. Of course, rules of law do not -rise from a spot on the ground as water does; they rise from facts in -the historical development of a community. Thus in Great Britain a good -many rules of law rise every year from Acts of Parliament. "Source of -Law" is therefore the name for an historical fact out of which rules of -conduct rise into existence and legal force. - -[Sidenote: The two Sources of International Law.] - -[p] 16. As the basis of the Law of Nations is the common consent of the -member States of the Family of Nations, it is evident that there must -exist, and can only exist, as many sources of International Law as there -are facts through which such common consent can possibly come into -existence. Of such facts there are only two. A State, just as an -individual, may give its consent either directly by an express -declaration or tacitly by conduct which it would not follow in case it -did not consent. The sources of International Law are therefore -twofold--namely: (1) _express_ consent, which is given when States -conclude a treaty stipulating certain rules for the future international -conduct of the parties; (2) _tacit_ consent, which is given through -States having adopted the custom of submitting to certain rules of -international conduct. Treaties and custom are, therefore, exclusively -the sources of the Law of Nations. - -[Sidenote: Custom in Contradistinction to Usage.] - -[p] 17. Custom is the older and the original source of International Law -in particular as well as of law in general. Custom must not be -confounded with usage. In everyday life and language both terms are used -synonymously, but in the language of the jurist they have two distinctly -different meanings. Jurists speak of a custom, when a clear and -continuous habit of doing certain actions has grown up under the aegis of -the conviction that these actions are legally necessary or legally -right. On the other hand, jurists speak of a usage, when a habit of -doing certain actions has grown up without there being the conviction of -their legal character. Thus the term "custom" is in juristic language a -narrower conception than the term "usage," as a given course of conduct -may be usual without being customary. Certain conduct of States -concerning their international relations may therefore be usual without -being the outcome of customary International Law. - -As usages have a tendency to become custom, the question presents -itself, at what time a usage turns into a custom. This question is one -of fact, not of theory. All that theory can point out is this: Wherever -and as soon as a frequently adopted international conduct of States is -considered legally necessary or legally right, the rule which may be -abstracted from such conduct, is a rule of customary International Law. - -[Sidenote: Treaties as Source of International Law.] - -[p] 18. Treaties are the second source of International Law, and a source -which has of late become of the greatest importance. As treaties may be -concluded for innumerable purposes,[14] it is necessary to emphasise -that such treaties only are a source of International Law as either -stipulate new rules for future international conduct or confirm, define, -or abolish existing customary or conventional rules. Such treaties must -be called _law-making treaties_. Since the Family of Nations is not a -State-like community, there is no central authority which could make law -for it in a similar way as Parliaments make law by statutes within the -States. The only way in which International Law can be made by a -deliberate act, in contradistinction to custom, is that the members of -the Family of Nations conclude treaties in which certain rules for their -future conduct are stipulated. Of course, such law-making treaties -create law for the contracting parties solely. Their law is _universal_ -International Law then only, when all the members of the Family of -Nations are parties to them. Many law-making treaties are concluded by a -few States only, so that the law which they create is _particular_ -International Law. On the other hand, there have been many law-making -treaties concluded which contain _general_ International Law, because -the majority of States, including leading Powers, are parties to them. -General International Law has a tendency to become universal because -such States as hitherto did not consent to it will in future either -expressly give their consent or recognise the respective rules tacitly -through custom.[15] But it must be emphasised that, whereas custom is -the original source of International Law, treaties are a source the -power of which derives from custom. For the fact that treaties can -stipulate rules of international conduct at all is based on the -customary rule of the Law of Nations, that treaties are binding upon the -contracting parties.[16] - -[Footnote 14: See below, [p] 492.] - -[Footnote 15: Law-making treaties of world-wide importance are -enumerated below, [p][p] 556-568b.] - -[Footnote 16: See below, [p] 493.] - -[Sidenote: Factors influencing the Growth of International Law.] - -[p] 19. Thus custom and treaties are the two exclusive sources of the Law -of Nations. When writers on International Law frequently enumerate other -sources besides custom and treaties, they confound the term "source" -with that of "cause" by calling sources of International Law such -factors as influence the gradual growth of new rules of International -Law without, however, being the historical facts from which these rules -receive their legal force. Important factors of this kind are: Opinions -of famous writers[17] on International Law, decisions of prize courts, -arbitral awards,[18] instructions issued by the different States for the -guidance of their diplomatic and other organs, State Papers concerning -foreign politics, certain Municipal Laws, decisions of Municipal -Courts.[19] All these and other factors may influence the growth of -International Law either by creating usages which gradually turn into -custom, or by inducing the members of the Family of Nations to conclude -such treaties as stipulate legal rules for future international conduct. - -[Footnote 17: See Oppenheim in A.J. II. (1908), pp. 344-348.] - -[Footnote 18: See Oppenheim in A.J. II. (1908), pp. 341-344.] - -[Footnote 19: See Oppenheim in A.J. II. (1908), pp. 336-341.] - -A factor of a special kind which also influences the growth of -International Law is the so-called _Comity_ (_Comitas Gentium_, -_Convenance et Courtoisie Internationale_, _Staatengunst_). In their -intercourse with one another, States do observe not only legally binding -rules and such rules as have the character of usages, but also rules of -politeness, convenience, and goodwill. Such rules of international -conduct are not rules of law, but of comity. The Comity of Nations is -certainly not a source of International Law, as it is distinctly the -contrast to the Law of Nations. But there can be no doubt that many a -rule which formerly was a rule of International Comity only is nowadays -a rule of International Law. And it is certainly to be expected that -this development will go on in future also, and that thereby many a rule -of present International Comity will in future become one of -International Law.[20] - -[Footnote 20: The matter is ably discussed in Stoerk, "Voelkerrecht und -Voelkercourtoisie" (1908).] - -Not to be confounded with the rules of Comity are the rules of morality -which ought to apply to the intercourse of States as much as to the -intercourse of individuals. - - -IV - -RELATIONS BETWEEN INTERNATIONAL AND MUNICIPAL LAW - - Holtzendorff in Holtzendorff, I. pp. 49-53, 117-120--Nys, I. pp. - 185-189--Taylor, [p] 103--Holland, Studies, pp. 176-200--Kaufmann, - "Die Rechtskraft des internationalen Rechts" (1899)--Triepel, - "Voelkerrecht und Landesrecht" (1899)--Anzilotti, "Il diritto - internazionale nei giudizi interni" (1905)--Kohler in Z.V. II. - (1908), pp. 209-230. - -[Sidenote: Essential Difference between International and Municipal -Law.] - -[p] 20. The Law of Nations and the Municipal Law of the single States are -essentially different from each other. They differ, first, as regards -their sources. Sources of Municipal Law are custom grown up within the -boundaries of the respective State and statutes enacted by the -law-giving authority. Sources of International Law are custom grown up -within the Family of Nations and law-making treaties concluded by the -members of that family. - -The Law of Nations and Municipal Law differ, secondly, regarding the -relations they regulate. Municipal Law regulates relations between the -individuals under the sway of the respective State and the relations -between this State and the respective individuals. International Law, on -the other hand, regulates relations between the member States of the -Family of Nations. - -The Law of Nations and Municipal Law differ, thirdly, with regard to the -substance of their law: whereas Municipal Law is a law of a Sovereign -over individuals subjected to his sway, the Law of Nations is a law not -above, but between Sovereign States, and therefore a weaker law.[21] - -[Footnote 21: See above, [p] 9.] - -[Sidenote: Law of Nations never _per se_ Municipal Law.] - -[p] 21. If the Law of Nations and Municipal Law differ as demonstrated, -the Law of Nations can neither as a body nor in parts be _per se_ a part -of Municipal Law. Just as Municipal Law lacks the power of altering or -creating rules of International Law, so the latter lacks absolutely the -power of altering or creating rules of Municipal Law. If, according to -the Municipal Law of an individual State, the Law of Nations as a body -or in parts is considered the law of the land, this can only be so -either by municipal custom or by statute, and then the respective rules -of the Law of Nations have by adoption[22] become at the same time rules -of Municipal Law. Wherever and whenever such total or partial adoption -has not taken place, municipal courts cannot be considered to be bound -by International Law, because it has, _per se_, no power over municipal -courts.[23] And if it happens that a rule of Municipal Law is in -indubitable conflict with a rule of the Law of Nations, municipal courts -must apply the former. If, on the other hand, a rule of the Law of -Nations regulates a fact without conflicting with, but without expressly -or tacitly having been adopted by Municipal Law, municipal courts cannot -apply such rule of the Law of Nations. - -[Footnote 22: This has been done by the United States. See The Nereide, -9 Cranch, 388; United States _v._ Smith, 5 Wheaton, 153; The Scotia, 14 -Wallace, 170; The Paquette Habana, 175 United States, 677. See also -Taylor, [p] 103, and Scott in A.J. I. (1908), pp. 852-865. As regards Great -Britain, see Blackstone, IV. ch. 5, and Westlake in _The Law Quarterly -Review_, XXII. (1906), pp. 14-26; see also the case of the West Rand -Central Mining Co. _v._ The King (1905), 2 K. B. 391.] - -[Footnote 23: This ought to be generally recognised, but, in fact, is -not; says, for instance, Kohler in Z.V. II.(1908), p. 210:--"_... das -Voelkerrecht ist ein ueberstaatliches Recht, das der Gesetzgebung des -einzelnen Staates nicht unterworfen ist und von den Richtern ohne -weiteres respectirt werden muss: das Voelkerrecht steht ueber dem -staatlichen Recht_."] - -[Sidenote: Certain Rules of Municipal Law necessitated or interdicted.] - -[p] 22. If Municipal Courts cannot apply unadopted rules of the Law of -Nations, and must apply even such rules of Municipal Law as conflict -with the Law of Nations, it is evident that the several States, in order -to fulfil their international obligations, are compelled to possess -certain rules, and are prevented from having certain other rules as part -of their Municipal Law. It is not necessary to enumerate all the rules -of Municipal Law which a State must possess, and all those rules it is -prevented from having. It suffices to give some illustrative examples. -Thus, on the one hand, the Municipal Law of every State, for instance, -is compelled to possess rules granting the necessary privileges to -foreign diplomatic envoys, protecting the life and liberty of foreign -citizens residing on its territory, threatening punishment for certain -acts committed on its territory in violation of a foreign State. On the -other hand, the Municipal Law of every State is prevented by the Law of -Nations from having rules, for instance, conflicting with the freedom of -the high seas, or prohibiting the innocent passage of foreign -merchantmen through its maritime belt, or refusing justice to foreign -residents with regard to injuries committed on its territory to their -lives, liberty, and property by its own citizens. If a State does -nevertheless possess such rules of Municipal Law as it is prevented from -having by the Law of Nations, or if it does not possess such Municipal -rules as it is compelled to have by the Law of Nations, it violates an -international legal duty, but its courts[24] cannot by themselves alter -the Municipal Law to meet the requirements of the Law of Nations. - -[Footnote 24: This became quite apparent in the Moray Firth case -(Mortensen _v._ Peters)--see below, [p] 192--in which the Court had to -apply British Municipal Law.] - -[Sidenote: Presumption against conflicts between International and -Municipal Law.] - -[p] 23. However, although Municipal Courts must apply Municipal Law even -if conflicting with the Law of Nations, there is a presumption against -the existence of such a conflict. As the Law of Nations is based upon -the common consent of the different States, it is improbable that a -civilised State would intentionally enact a rule conflicting with the -Law of Nations. A part of Municipal Law, which ostensibly seems to -conflict with the Law of Nations, must, therefore, if possible, always -be so interpreted as essentially not containing such conflict. - -[Sidenote: Presumption of Existence of certain necessary Municipal -Rules.] - -[p] 24. In case of a gap in the statutes of a civilised State regarding -certain rules necessitated by the Law of Nations, such rules ought to be -presumed by the Courts to have been tacitly adopted by such Municipal -Law. It may be taken for granted that a State which is a member of the -Family of Nations does not intentionally want its Municipal Law to be -deficient in such rules. If, for instance, the Municipal Law of a State -does not by a statute grant the necessary privileges to diplomatic -envoys, the courts ought to presume that such privileges are tacitly -granted. - -[Sidenote: Presumption of the Existence of certain Municipal Rules in -Conformity with Rights granted by the Law of Nations.] - -[p] 25. There is no doubt that a State need not make use of all the rights -it has by the Law of Nations, and that, consequently, every State can by -its laws expressly renounce the whole or partial use of such rights, -provided always it is ready to fulfil such duties, if any, as are -connected with these rights. However, when no such renunciation has -taken place, Municipal Courts ought, in case the interests of justice -demand it, to presume that their Sovereign has tacitly consented to make -use of such rights. If, for instance, the Municipal Law of a State does -not by a statute extend its jurisdiction over its maritime belt, its -courts ought to presume that, since by the Law of Nations the -jurisdiction of a State does extend over its maritime belt, their -Sovereign has tacitly consented to that wider range of its jurisdiction. - -A remarkable case illustrating this happened in this country in 1876. -The German vessel _Franconia_, while passing through the British -maritime belt within three miles of Dover, negligently ran into the -British vessel _Strathclyde_, and sank her. As a passenger on board the -latter was thereby drowned, the commander of the _Franconia_, the German -Keyn, was indicted at the Central Criminal Court and found guilty of -manslaughter. The Court for Crown Cases Reserved, however, to which the -Central Criminal Court referred the question of jurisdiction, held by a -majority of one judge that, according to the law of the land, English -courts had no jurisdiction over crimes committed in the English maritime -belt. Keyn was therefore not punished.[25] To provide for future cases -of like kind, Parliament passed, in 1878, the "Territorial Waters -Jurisdiction Act."[26] - -[Footnote 25: L.R. 2 Ex. Div. 63. See Phillimore, I. [p] 198 B; Maine, pp. -39-45. See also below, [p] 189, where the controversy is discussed whether -a littoral State has jurisdiction over foreign vessels that merely pass -through its maritime belt.] - -[Footnote 26: 41 and 42 Vict. c. 73.] - - -V - -DOMINION OF THE LAW OF NATIONS - - Lawrence, [p] 44--Phillimore, I. [p][p] 27-33--Twiss, I. [p] 62--Taylor, - [p][p] 61-64--Westlake, I. p. 40--Bluntschli, [p][p] 1-16--Heffter, [p] - 7--Holtzendorff in Holtzendorff, I. pp. 13-18--Nys, I. pp. - 116-132--Rivier, I. [p] 1--Bonfils, Nos. 40-45--Despagnet, Nos. - 51-53--Martens, I. [p] 41--Fiore, Code, Nos. 38-43--Ullmann, [p] - 10--Nippold in Z.V. II. (1908), pp. 441-443--Cavaglieri in R.G. - XVIII. (1911), pp. 259-292. - -[Sidenote: Range of Dominion of International Law controversial.] - -[p] 26. Dominion of the Law of Nations is the name given to the area -within which International Law is applicable--that is, those States -between which International Law finds validity. The range of the -dominion of the Law of Nations is controversial, two extreme opinions -concerning this dominion being opposed. Some publicists[27] maintain -that the dominion of the Law of Nations extends as far as humanity -itself, that every State, whether Christian or non-Christian, civilised -or uncivilised, is a subject of International Law. On the other hand, -several jurists[28] teach that the dominion of the Law of Nations -extends only as far as Christian civilisation, and that Christian States -only are subjects of International Law. Neither of these opinions would -seem to be in conformity with the facts of the present international -life and the basis of the Law of Nations. There is no doubt that the Law -of Nations is a product of Christian civilisation. It originally arose -between the States of Christendom only, and for hundreds of years was -confined to these States. Between Christian and Mohammedan nations a -condition of perpetual enmity prevailed in former centuries. And no -constant intercourse existed in former times between Christian and -Buddhistic States. But from about the beginning of the nineteenth -century matters gradually changed. A condition of perpetual enmity -between whole groups of nations exists no longer either in theory or in -practice. And although there is still a broad and deep gulf between -Christian civilisation and others, many interests, which knit Christian -States together, knit likewise some non-Christian and Christian States. - -[Footnote 27: See, for instance, Bluntschli, [p] 8, and Fiore, Code, No. -38.] - -[Footnote 28: See, for instance, Martens, [p] 41.] - -[Sidenote: Three Conditions of Membership of the Family of Nations.] - -[p] 27. Thus the membership of the Family of Nations has of late -necessarily been increased, and the range of the dominion of the Law of -Nations has extended beyond its original limits. This extension has -taken place in conformity with the basis of the Law of Nations. As this -basis is the common consent of the civilised States, there are three -conditions for the admission of new members into the circle of the -Family of Nations. A State to be admitted must, first, be a civilised -State which is in constant intercourse with members of the Family of -Nations. Such State must, secondly, expressly or tacitly consent to be -bound for its future international conduct by the rules of International -Law. And, thirdly, those States which have hitherto formed the Family of -Nations must expressly or tacitly consent to the reception of the new -member. - -The last two conditions are so obvious that they need no comment. -Regarding the first condition, however, it must be emphasised that not -particularly Christian civilisation, but civilisation of such kind only -is conditioned as to enable the State concerned and its subjects to -understand and to act in conformity with the principles of the Law of -Nations. These principles cannot be applied to a State which is not able -to apply them on its own part to other States. On the other hand, they -can well be applied to a State which is able and willing to apply them -to other States, provided a constant intercourse has grown up between it -and other States. The fact is that the Christian States have been of -late compelled by pressing circumstances to receive several -non-Christian States into the community of States which are subjects of -International Law. - -[Sidenote: Present range of Dominion of the Law of Nations.] - -[p] 28. The present range of the dominion of International Law is a -product of historical development within which epochs are -distinguishable marked by successive entrances of various States into -the Family of Nations. - -(1) The old Christian States of Western Europe are the original members -of the Family of Nations, because the Law of Nations grew up gradually -between them through custom and treaties. Whenever afterwards a new -Christian State made its appearance in Europe, it was received into the -charmed circle by the old members of the Family of Nations. It is for -this reason that this law was in former times frequently called -"European Law of Nations." But this name has nowadays historical value -only, as it has been changed into "Law of Nations," or "International -Law" pure and simple. - -(2) The next group of States which entered into the Family of Nations is -the body of Christian States which grew up outside Europe. All the -American[29] States which arose out of colonies of European States -belong to this group. And it must be emphasised that the United States -of America have largely contributed to the growth of the rules of -International Law. The two Christian Negro Republics of Liberia in West -Africa and of Haiti on the island of San Domingo belong to this group. - -[Footnote 29: But it ought not to be maintained that there is--in -contradistinction to the European--an American International Law in -existence; see, however, Alvarez, "Le Droit International Americain" -(1910), and again Alvarez in A.J. III. (1909), pp. 269-353.] - -(3) With the reception of the Turkish Empire into the Family of Nations -International Law ceased to be a law between Christian States solely. -This reception has expressly taken place through Article 7 of the Peace -Treaty of Paris of 1856, in which the five Great European Powers of the -time, namely, France, Austria, England, Prussia, and Russia, and besides -those Sardinia, the nucleus of the future Great Power Italy, expressly -"declarent la Sublime Porte admise a participer aux avantages du droit -public et du concert europeens." Since that time Turkey has on the whole -endeavoured in time of peace and war to act in conformity with the rules -of International Law, and she has, on the other hand, been treated[30] -accordingly by the Christian States. No general congress has taken place -since 1856 to which Turkey has not been invited to send her delegates. - -[Footnote 30: There is no doubt that Turkey, in spite of having been -received into the Family of Nations, has nevertheless hitherto been in -an anomalous position as a member of that family, owing to the fact that -her civilisation has not yet reached the level of that of the Western -States. It is for this reason that the so-called Capitulations are still -in force and that other anomalies still prevail, but their disappearance -is only a question of time.] - -(4) Another non-Christian member of the Family of Nations is Japan. A -generation ago one might have doubted whether Japan was a real and full -member of that family, but since the end of the nineteenth century no -doubt is any longer justified. Through marvellous efforts, Japan has -become not only a modern State, but an influential Power. Since her war -with China in 1895, she must be considered one of the Great Powers that -lead the Family of Nations. - -(5) The position of such States as Persia, Siam, China, Morocco, -Abyssinia, and the like, is doubtful. These States are certainly -civilised States, and Abyssinia is even a Christian State. However, -their civilisation has not yet reached that condition which is necessary -to enable their Governments and their population in every respect to -understand and to carry out the command of the rules of International -Law. On the other hand, international intercourse has widely arisen -between these States and the States of the so-called Western -civilisation. Many treaties have been concluded with them, and there is -full diplomatic intercourse between them and the Western States. China, -Persia, and Siam have even taken part in the Hague Peace Conferences. -All of them make efforts to educate their populations, to introduce -modern institutions, and thereby to raise their civilisation to the -level of that of the Western. They will certainly succeed in this -respect in the near future. But as yet they have not accomplished this -task, and consequently they are not yet able to be received into the -Family of Nations as full members. Although they are, as will be shown -below ([p] 103), for some parts within the circle of the Family of -Nations, they remain for other parts outside. But the example of Japan -can show them that it depends entirely upon their own efforts to be -received as full members into that family. - -(6) It must be mentioned that a State of quite a unique character, the -former Congo Free State,[31] was, since the Berlin Conference of -1884-1885, a member of the Family of Nations. But it lost its membership -in 1908 when it merged in Belgium by cession. - -[Footnote 31: See below, [p] 101.] - -[Sidenote: Treatment of States outside the Family of Nations.] - -[p] 29. The Law of Nations as a law between States based on the common -consent of the members of the Family of Nations naturally does not -contain any rules concerning the intercourse with and treatment of such -States as are outside that circle. That this intercourse and treatment -ought to be regulated by the principles of Christian morality is -obvious. But actually a practice frequently prevails which is not only -contrary to Christian morality, but arbitrary and barbarous. Be that as -it may, it is discretion, and not International Law, according to which -the members of the Family of Nations deal with such States as still -remain outside that family. But the United States of America apply, as -far as possible, the rules of International Law to their relations with -the Red Indians. - - -VI - -CODIFICATION OF THE LAW OF NATIONS - - Holtzendorff in Holtzendorff, I. pp. 136-152--Ullmann, [p] - 11--Despagnet, Nos. 67-68--Bonfils, Nos. 1713-1727--Merignhac, I. - pp. 26-28--Nys, I. pp. 166-183--Rivier, I. [p] 2--Fiore, I. Nos. - 124-127--Martens, I. [p] 44--Holland, Studies, pp. 78-95--Bergbohm, - "Staatsvertraege und Gesetze als Quellen des Voelkerrechts" (1877), - pp. 44-77--Bulmerincq, "Praxis, Theorie, und Codification des - Voelkerrechts" (1874), pp. 167-192--Roszkowski in R.I. XXI. (1889), - p. 520--Proceedings of the American Society of International Law, - IV. (1910), pp. 208-227. - -[Sidenote: Movement in Favour of Codification.] - -[p] 30. The lack of precision which is natural to a large number of the -rules of the Law of Nations on account of its slow and gradual growth -has created a movement for its codification. The idea of a codification -of the Law of Nations in its totality arose at the end of the eighteenth -century. It was Bentham who first suggested such a codification. He did -not, however, propose codification of the existing positive Law of -Nations, but thought of a utopian International Law which could be the -basis of an everlasting peace between the civilised States.[32] - -[Footnote 32: See Bentham's Works, ed. Bowring, VIII. p. 537; Nys, in -_The Law Quarterly Review_, XI. (1885), pp. 226-231.] - -Another utopian project is due to the French Convention, which resolved -in 1792 to create a Declaration of the Rights of Nations as a pendant to -the Declaration of the Rights of Mankind of 1789. For this purpose the -Abbe Gregoire was charged with the drafting of such a declaration. In -1795, Abbe Gregoire produced a draft of twenty-one articles, which, -however, was rejected by the Convention, and the matter dropped.[33] - -[Footnote 33: See Rivier, I. p. 40, where the full text of these -twenty-one articles is given. They did not contain a real code, but -certain principles only.] - -It was not until 1861 that a real attempt was made to show the -possibility of a codification. This was done by an Austrian jurist, -Alfons von Domin-Petrushevecz, who published in that year at Leipzig a -"Precis d'un Code de Droit International." - -In 1862, the Russian Professor Katschenowsky brought an essay before the -Juridical Society of London (Papers II. 1863) arguing the necessity of a -codification of International Law. - -In 1863, Professor Francis Lieber, of the Columbia College, New York, -drafted the Laws of War in a body of rules which the United States -published during the Civil War for the guidance of her army.[34] - -[Footnote 34: See below, vol. II. [p] 68.] - -In 1868, Bluntschli, the celebrated Swiss interpreter of the Law of -Nations, published "Das moderne Voelkerrecht der civilisirten Staaten als -Rechtsbuch dargestellt." This draft code has been translated into the -French, Greek, Spanish, and Russian languages, and the Chinese -Government produced an official Chinese translation as a guide for -Chinese officials. - -In 1872, the great Italian politician and jurist Mancini raised his -voice in favour of codification of the Law of Nations in his able essay -"Vocazione del nostro secolo per la riforma e codificazione del diritto -delle genti." - -Likewise in 1872 appeared at New York David Dudley Field's "Draft -Outlines of an International Code." - -In 1873 the Institute of International Law was founded at Ghent in -Belgium. This association of jurists of all nations meets periodically, -and has produced a number of drafts concerning various parts of -International Law, and in especial a Draft Code of the Law of War on -Land (1880). - -Likewise in 1873 was founded the Association for the Reform and -Codification of the Law of Nations, which also meets periodically and -which styles itself now the International Law Association. - -In 1874 the Emperor Alexander II. of Russia took the initiative in -assembling an international conference at Brussels for the purpose of -discussing a draft code of the Law of Nations concerning land warfare. -At this conference jurists, diplomatists, and military men were united -as delegates of the invited States, and they agreed upon a body of sixty -articles which goes under the name of The Declaration of Brussels. But -the Powers have never ratified these articles. - -In 1880 the Institute of International Law published its "Manuel des -Lois de la Guerre sur Terre." - -In 1887 Leone Levi published his "International Law with Materials for a -Code of International Law." - -In 1890 the Italian jurist Fiore published his "Il diritto -internazionale codificato e sua sanzione giuridica," of which a fourth -edition appeared in 1911. - -In 1906 E. Duplessix published his "La loi des Nations. Projet -d'institution d'une autorite nationale, legislative, administrative, -judiciaire. Projet de Code de Droit international public." - -In 1911 Jerome Internoscia published his "New Code of International Law" -in English, French, and Italian. - -[Sidenote: Work of the first Hague Peace Conference.] - -[p] 31. At the end of the nineteenth century, in 1899, the so-called Peace -Conference at the Hague, convened on the personal initiative of the -Emperor Nicholas II. of Russia, has shown the possibility that parts of -the Law of Nations may well be codified. Apart from three Declarations -of minor value and of the convention concerning the adaptation of the -Geneva Convention to naval warfare, this conference has succeeded in -producing two important conventions which may well be called -codes--namely, first, the "Convention for the Pacific Settlement of -International Disputes," and, secondly, the "Convention with respect to -the Laws and Customs of War on Land." The great practical importance of -the first-named convention is now being realised, as the Permanent Court -of Arbitration has in a number of cases already successfully given its -award. Nor can the great practical value of the second-named convention -be denied. Although the latter contains, even in the amended form given -to it by the second Hague Peace Conference of 1907, many gaps, which -must be filled up by the customary Law of Nations, and although it is -not a masterpiece of codification, it represents a model, the very -existence of which teaches that codification of parts of the Law of -Nations is practicable, provided the Powers are inclined to come to an -understanding. The first Hague Peace Conference has therefore made an -epoch in the history of International Law. - -[Sidenote: Work of the second Hague Peace Conference and the Naval -Conference of London.] - -[p] 32. Shortly after the Hague Peace Conference of 1899, the United -States of America took a step with regard to sea warfare similar to that -taken by her in 1863 with regard to land warfare. She published on June -27, 1900, a body of rules for the use of her navy under the title "The -Laws and Usages of War at Sea"--the so-called "United States Naval War -Code"--which was drafted by Captain Charles H. Stockton, of the United -States Navy. - -Although, on February 4, 1904, this code was by authority of the -President of the United States withdrawn it provided the starting-point -of a movement for codification of maritime International Law. No -complete Naval War Code agreed upon by the Powers has as yet made its -appearance, but the second Hague Peace Conference of 1907 and the Naval -Conference of London of 1908-9 have produced a number of law-making -treaties which represent codifications of several parts of maritime -International Law. - -The second Hague Peace Conference met in 1907 and produced not less than -thirteen conventions and one declaration. This declaration prohibits the -discharge of projectiles and explosives from balloons and takes the -place of a corresponding declaration of the first Hague Peace -Conference. And three of the thirteen conventions, namely that for the -pacific settlement of international disputes, that concerning the laws -and customs of war on land, and that concerning the adaptation of the -principles of the Geneva Convention to maritime war, likewise take the -place of three corresponding conventions of the first Hague Peace -Conference. But the other ten conventions are entirely new and concern: -the limitation of the employment of force for the recovery of contract -debts, the opening of hostilities, the rights and duties of neutral -Powers and persons in war on land, the status of enemy merchant ships at -the outbreak of hostilities, the conversion of merchant ships into war -ships, the laying of automatic submarine contact mines, bombardments by -naval forces in time of war, restrictions on the exercise of the right -of capture in maritime war, the establishment of a Prize Court, the -rights and duties of neutral Powers in maritime war. - -The Naval Conference of London which met in November 1908, and sat till -February 1909, produced the Declaration of London, the most important -law-making treaty as yet concluded. Its nine chapters deal with: -blockade, contraband, unneutral service, destruction of neutral prizes, -transfer to a neutral flag, enemy character, convoy, resistance to -search, compensation. The Declaration of London, when ratified, will -make the establishment of an International Prize Court possible. - -[Sidenote: Value of Codification of International Law contested.] - -[p] 33. In spite of the movement in favour of codification of the Law of -Nations, there are many eminent jurists who oppose such codification. -They argue that codification would never be possible on account of -differences of languages and of technical juridical terms. They assert -that codification would cut off the organic growth and future -development of International Law. They postulate the existence of a -permanent International Court with power of executing its verdicts as an -indispensable condition, since without such a court no uniform -interpretation of controversial parts of a code could be possible. -Lastly, they maintain that the Law of Nations is not yet at present, and -will not be for a long time to come, ripe for codification. Those -jurists, on the other hand, who are in favour of codification argue that -the customary Law of Nations to a great extent lacks precision and -certainty, that writers on International Law differ in many points -regarding its rules, and that, consequently, there is no broad and -certain basis for the practice of the States to stand upon. - -[Sidenote: Merits of Codification in general.] - -[p] 34. I am decidedly not a blind and enthusiastic admirer of -codification in general. It cannot be maintained that codification is -everywhere, at all times, and under all circumstances opportune. -Codification certainly interferes with the so-called organic growth of -the law through usage into custom. It is true that a law, once codified, -cannot so easily adapt itself to the individual merits of particular -cases which come under it. It is further a fact, which cannot be denied, -that together with codification there frequently enters into courts of -justice and into the area of juridical literature a hair-splitting -tendency and an interpretation of the law which often clings more to the -letter and the word of the law than to its spirit and its principles. -And it is not at all a fact that codification does away with -controversies altogether. Codification certainly clears up many -questions of law which have been hitherto debatable, but it creates at -the same time new controversies. And, lastly, all jurists know very well -that the art of legislation is still in its infancy and not at all -highly developed. The hands of legislators are very often clumsy, and -legislation often does more harm than good. Yet, on the other hand, the -fact must be recognised that history has given its verdict in favour of -codification. There is no civilised State in existence whose Municipal -Law is not to a greater or lesser extent codified. The growth of the law -through custom goes on very slowly and gradually, very often too slowly -to be able to meet the demands of the interests at stake. New interests -and new inventions very often spring up with which customary law cannot -deal. Circumstances and conditions frequently change so suddenly that -the ends of justice are not met by the existing customary law of a -State. Thus, legislation, which is, of course, always partial -codification, becomes often a necessity in the face of which all -hesitation and scruple must vanish. Whatever may be the disadvantages of -codification, there comes a time in the development of every civilised -State when it can no longer be avoided. And great are the advantages of -codification, especially of a codification that embraces a large part of -the law. Many controversies are done away with. The science of Law -receives a fresh stimulus. A more uniform spirit enters into the law of -the country. New conditions and circumstances of life become legally -recognised. Mortifying principles and branches are cut off with one -stroke. A great deal of fresh and healthy blood is brought into the -arteries of the body of the law in its totality. If codification is -carefully planned and prepared, if it is imbued with true and healthy -conservatism, many disadvantages can be avoided. And interpretation on -the part of good judges can deal with many a fault that codification has -made. If the worst comes to the worst, there is always a Parliament or -another law-giving authority of the land to mend through further -legislation the faults of previous codification. - -[Sidenote: Merits of Codification of International Law.] - -[p] 35. But do these arguments in favour of codification in general also -apply to codification of the Law of Nations? I have no doubt that they -do more or less. If some of these arguments have no force in view of the -special circumstances of the existence of International Law and of the -peculiarities of the Family of Nations, there are other arguments which -take their place. - -When opponents maintain that codification would never be practicable on -account of differences of language and of technical juridical terms, I -answer that this difficulty is only as great an obstacle in the way of -codification as it is in the way of contracting international treaties. -The fact that such treaties are concluded every day shows that -difficulties which arise out of differences of language and of technical -juridical terms are not at all insuperable. - -Of more weight than this is the next argument of opponents, that -codification of the Law of Nations would cut off its organic growth and -future development. It cannot be denied that codification always -interferes with the growth of customary law, although the assertion is -not justified that codification does _cut off_ such growth. But this -disadvantage can be met by periodical revisions of the code and by its -gradual increase and improvement through enactment of additional and -amending rules according to the wants and needs of the days to come. - -When opponents postulate an international court with power of executing -its verdicts as an indispensable condition of codification, I answer -that the non-existence of such a court is quite as much or as little an -argument against codification as against the very existence of -International Law. If there is a Law of Nations in existence in spite of -the non-existence of an international court to guarantee its -realisation, I cannot see why the non-existence of such a court should -be an obstacle to codifying the very same Law of Nations. It may indeed -be maintained that codification is all the more necessary as such an -international court does not exist. For codification of the Law of -Nations and the solemn recognition of a code by a universal law-making -international treaty would give more precision, certainty, and weight to -the rules of the Law of Nations than they have now in their unwritten -condition. And a uniform interpretation of a code is now, since the -first Hague Peace Conference has instituted a Permanent Court of -Arbitration, and since the second Peace Conference has resolved upon the -establishment of an International Prize Court, much more realisable than -in former times, although these courts will never have the power of -executing their verdicts. - -But is the Law of Nations ripe for codification? I readily admit that -there are certain parts of that law which would offer the greatest -difficulty, and which therefore had better remain untouched for the -present. But there are other parts, and I think that they constitute the -greater portion of the Law of Nations, which are certainly ripe for -codification. There can be no doubt that, whatever can be said against -codification of the whole of the Law of Nations, partial codification is -possible and comparatively easy. The work done by the Institute of -International Law, and published in the "Annuaire de l'Institut de Droit -International," gives evidence of it. And the number and importance of -the law-making treaties produced by the Hague Peace Conferences and the -Maritime Conference of London, 1908-9, should leave no doubt as to the -feasibility of such partial codification. - -[Sidenote: How Codification could be realised.] - -[p] 36. However, although possible, codification could hardly be realised -at once. The difficulties, though not insuperable, are so great that it -would take the work of perhaps a generation of able jurists to prepare -draft codes for those parts of International Law which may be considered -ripe for codification. The only way in which such draft codes could be -prepared consists in the appointment on the part of the Powers of an -international committee composed of a sufficient number of able jurists, -whose task would be the preparation of the drafts. Public opinion of the -whole civilised world would, I am sure, watch the work of these men with -the greatest interest, and the Parliaments of the civilised States would -gladly vote the comparatively small sums of money necessary for the -costs of the work. But in proposing codification it is necessary to -emphasise that it does not necessarily involve a reconstruction of the -present international order and a recasting of the whole system of -International Law as it at present stands. Naturally, a codification -would in many points mean not only an addition to the rules at present -recognised, but also the repeal, alteration, and reconstruction of some -of these rules. Yet, however this may be, I do not believe that a -codification ought to be or could be undertaken which would -revolutionise the present international order and put the whole system -of International Law on a new basis. The codification which I have in -view is one that would embody the existing rules of International Law -together with such modifications and additions as are necessitated by -the conditions of the age and the very fact of codification being taken -in hand. If International Law, as at present recognised, is once -codified, nothing prevents reformers from making proposals which could -be realised by successive codification. - - - - -CHAPTER II - -DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS - - -I - -DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS - - Lawrence, [p][p] 20-29--Manning, pp. 8-20--Halleck, I. pp. - 1-11--Walker, History, I. pp. 30-137--Taylor, [p][p] - 6-29--Ullmann, [p][p] 12-14--Holtzendorff in Holtzendorff, I, pp. - 159-386--Nys, I. pp. 1-18--Martens, I. [p][p] 8-20--Fiore, I. Nos. - 3-31--Calvo, I. pp. 1-32--Bonfils, Nos. 71-86--Despagnet, Nos. - 1-19--Merignhac, I. pp. 38-43--Laurent, "Histoire du Droit des - Gens," &c., 14 vols. (2nd ed. 1861-1868)--Ward, "Enquiry into the - Foundation and History of the Law of Nations," 2 vols. - (1795)--Osenbrueggen, "De Jure Belli ac Pacis Romanorum" - (1876)--Mueller-Jochmus, "Geschichte des Voelkerrechts im - Alterthum" (1848)--Hosack, "Rise and Growth of the Law of Nations" - (1883), pp. 1-226--Nys, "Le Droit de la Guerre et les Precurseurs - de Grotius" (1882) and "Les Origines du Droit International" - (1894)--Hill, "History of Diplomacy in the International - Development of Europe," vol. I. (1905) and vol. II. - (1906)--Cybichowski, "Das antike Voelkerrecht" (1907)--Phillipson, - "The International Law and Custom of Ancient Greece and Rome," 2 - vols. (1910)--Strupp, "Urkunden zur Geschichte des Voelkerrechts," - 2 vols. (1911). - -[Sidenote: No Law of Nations in antiquity.] - -[p] 37. International Law as a law between Sovereign and equal States -based on the common consent of these States is a product of modern -Christian civilisation, and may be said to be hardly four hundred years -old. However, the roots of this law go very far back into history. Such -roots are to be found in the rules and usages which were observed by the -different nations of antiquity with regard to their external relations. -But it is well known that the conception of a Family of Nations did not -arise in the mental horizon of the ancient world. Each nation had its -own religion and gods, its own language, law, and morality. -International interests of sufficient vigour to wind a band around all -the civilised States, bring them nearer to each other, and knit them -together into a community of nations, did not spring up in antiquity. On -the other hand, however, no nation could avoid coming into contact with -other nations. War was waged and peace concluded. Treaties were agreed -upon. Occasionally ambassadors were sent and received. International -trade sprang up. Political partisans whose cause was lost often fled -their country and took refuge in another. And, just as in our days, -criminals often fled their country for the purpose of escaping -punishment. - -Such more or less frequent and constant contact of different nations -with one another could not exist without giving rise to certain fairly -congruent rules and usages to be observed with regard to external -relations. These rules and usages were considered under the protection -of the gods; their violation called for religious expiation. It will be -of interest to throw a glance at the respective rules and usages of the -Jews, Greeks, and Romans. - -[Sidenote: The Jews.] - -[p] 38. Although they were monotheists and the standard of their ethics -was consequently much higher than that of their heathen neighbours, the -Jews did not in fact raise the standard of the international relations -of their time except so far as they afforded foreigners living on Jewish -territory equality before the law. Proud of their monotheism and -despising all other nations on account of their polytheism, they found -it totally impossible to recognise other nations as equals. If we -compare the different parts of the Bible concerning the relations of the -Jews with other nations, we are struck by the fact that the Jews were -sworn enemies of some foreign nations, as the Amalekites, for example, -with whom they declined to have any relations whatever in peace. When -they went to war with those nations, their practice was extremely -cruel. They killed not only the warriors on the battlefield, but also -the aged, the women, and the children in their homes. Read, for example, -the short description of the war of the Jews against the Amalekites in 1 -Samuel xv., where we are told that Samuel instructed King Saul as -follows: (3) "Now go and smite Amalek, and utterly destroy all that they -have, and spare them not; but slay both man and woman, infant and -suckling, ox and sheep, camel and ass." King Saul obeyed the injunction, -save that he spared the life of Agag, the Amalekite king, and some of -the finest animals. Then we are told that the prophet Samuel rebuked -Saul and "hewed Agag in pieces with his own hand." Or again, in 2 Samuel -xii. 31, we find that King David, "the man after God's own heart," after -the conquest of the town of Rabbah, belonging to the Ammonites, "brought -forth the people that were therein and put them under saws, and under -harrows of iron, and made them pass through the brick-kiln...." - -With those nations, however, of which they were not sworn enemies the -Jews used to have international relations. And when they went to war -with those nations, their practice was in no way exceptionally cruel, if -looked upon from the standpoint of their time and surroundings. Thus we -find in Deuteronomy xx. 10-14 the following rules:-- - -(10) "When thou comest nigh unto a city to fight against it, then -proclaim peace unto it. - -(11) "And it shall be, if it make thee answer of peace and open unto -thee, that all the people that is found therein shall be tributaries -unto thee, and they shall serve thee. - -(12) "And if it will make no peace with thee, but will make war against -thee, then thou shalt besiege it. - -(13) "And when the Lord thy God hath delivered it into thine hands, -thou shalt smite every male thereof with the edge of the sword. - -(14) "But the women, and the little ones, and the cattle, and all that -is in the city, even all the spoil thereof, shalt thou take unto -thyself; and thou shalt eat the spoil of thine enemies, which the Lord -thy God hath given thee." - -Comparatively mild, like these rules for warfare, were the Jewish rules -regarding their foreign slaves. Such slaves were not without legal -protection. The master who killed a slave was punished (Exodus ii. 20); -if the master struck his slave so severely that he lost an eye or a -tooth, the slave became a free man (Exodus ii. 26 and 27). The Jews, -further, allowed foreigners to live among them under the full protection -of their laws. "Love ... the stranger, for ye were strangers in the land -of Egypt," says Deuteronomy x. 19, and in Leviticus xxiv. 22 there is -the command: "You shall have one manner of law, as well for the stranger -as for one of your own country." - -Of the greatest importance, however, for the International Law of the -future, are the Messianic ideals and hopes of the Jews, as these -Messianic ideals and hopes are not national only, but fully -_inter_national. The following are the beautiful words in which the -prophet Isaiah (ii. 2-4) foretells the state of mankind when the Messiah -shall have appeared: - -(2) "And it shall come to pass in the last days, that the mountain of -the Lord's house shall be established in the top of the mountains, and -shall be exalted above the hills; and all nations shall flow unto it. - -(3) "And many people shall go and say, Come ye, and let us go up to the -mountain of the Lord, to the house of the God of Jacob, and he will -teach us of his ways, and we will walk in his paths; for out of Zion -shall go forth the law, and the word of the Lord from Jerusalem. - -(4) "And he shall judge among the nations, and shall rebuke many people: -and they shall beat their swords into plowshares, and their spears into -pruning-hooks: nation shall not lift up sword against nation, neither -shall they learn war any more." - -Thus we see that the Jews, at least at the time of Isaiah, had a -foreboding and presentiment of a future when all the nations of the -world should be united in peace. And the Jews have given this ideal to -the Christian world. It is the same ideal which has in bygone times -inspired all those eminent men who have laboured to build up an -International Law. And it is again the same ideal which nowadays -inspires all lovers of international peace. Although the Jewish State -and the Jews as a nation have practically done nothing to realise that -ideal, yet it sprang up among them and has never disappeared. - -[Sidenote: The Greeks.] - -[p] 39. Totally different from this Jewish contribution to a future -International Law is that of the Greeks. The broad and deep gulf between -their civilisation and that of their neighbours necessarily made them -look down upon those neighbours as barbarians, and thus prevented them -from raising the standard of their relations with neighbouring nations -above the average level of antiquity. But the Greeks before the -Macedonian conquest were never united into one powerful national State. -They lived in numerous more or less small city States, which were -totally independent of one another. It is this very fact which, as time -went on, called into existence a kind of International Law between these -independent States. They could never forget that their inhabitants were -of the same race. The same blood, the same religion, and the same -civilisation of their citizens united these independent and--as we -should say nowadays--Sovereign States into a community of States which -in time of peace and war held themselves bound to observe certain rules -as regards the relations between one another. The consequence was that -the practice of the Greeks in their wars among themselves was a very -mild one. It was a rule that war should never be commenced without a -declaration of war. Heralds were inviolable. Warriors who died on the -battlefield were entitled to burial. If a city was captured, the lives -of all those who took refuge in a temple had to be spared. War prisoners -could be exchanged or ransomed; their lot was, at the utmost, slavery. -Certain places, as, for example, the temple of the god Apollo at Delphi, -were permanently inviolable. Even certain persons in the armies of the -belligerents were considered inviolable, as, for instance, the priests, -who carried the holy fire, and the seers. - -Thus the Greeks left to history the example that independent and -Sovereign States can live, and are in reality compelled to live, in a -community which provides a law for the international relations of the -member-States, provided that there exist some common interests and aims -which bind these States together. It is very often maintained that this -kind of International Law of the Greek States could in no way be -compared with our modern International Law, as the Greeks did not -consider their international rules as legally, but as religiously -binding only. We must, however, not forget that the Greeks never made -the same distinction between law, religion, and morality which the -modern world makes. The fact itself remains unshaken that the Greek -States set an example to the future that independent States can live in -a community in which their international regulations are governed by -certain rules and customs based on the common consent of the members of -that community. - -[Sidenote: The Romans.] - -[p] 40. Totally different again from the Greek contribution to a future -International Law is that of the Romans. As far back as their history -goes, the Romans had a special set of twenty priests, the so-called -_fetiales_, for the management of functions regarding their relations -with foreign nations. In fulfilling their functions the _fetiales_ did -not apply a purely secular but a divine and holy law, a _jus sacrale_, -the so-called _jus fetiale_. The _fetiales_ were employed when war was -declared or peace was made, when treaties of friendship or of alliance -were concluded, when the Romans had an international claim before a -foreign State, or _vice versa_. - -According to Roman Law the relations of the Romans with a foreign State -depended upon the fact whether or not there existed a treaty of -friendship between Rome and the respective State. In case no such treaty -was in existence, persons or goods coming from the foreign land into the -land of the Romans, and likewise persons and goods going from the land -of the Romans into the foreign land, enjoyed no legal protection -whatever. Such persons could be made slaves, and such goods could be -seized, and became the property of the captor. Should such an enslaved -person ever come back to his country, he was at once considered a free -man again according to the so-called _jus postliminii_. An exception was -made as regards ambassadors. They were always considered inviolable, and -whoever violated them was handed over to the home State of those -ambassadors to be punished according to discretion. - -Different were the relations when a treaty of friendship existed. -Persons and goods coming from one country into the other stood then -under legal protection. So many foreigners came in the process of time -to Rome that a whole system of law sprang up regarding these foreigners -and their relations with Roman citizens, the so-called _jus gentium_ in -contradistinction to the _jus civile_. And a special magistrate, the -_praetor peregrinus_, was nominated for the administration of that -law. Of such treaties with foreign nations there were three different -kinds, namely, of _friendship_ (_amicitia_), of _hospitality_ -(_hospitium_), or of _alliance_ (_foedus_). I do not propose to go into -details about them. It suffices to remark that, although the treaties -were concluded without any such provision, notice of termination could -be given. Very often these treaties used to contain a provision -according to which future controversies could be settled by arbitration -of the so-called _recuperatores_. - -Very precise legal rules existed as regards war and peace. Roman law -considered war a legal institution. There were four different just -reasons for war, namely: (1) Violation of the Roman dominion; (2) -violation of ambassadors; (3) violation of treaties; (4) support given -during war to an opponent by a hitherto friendly State. But even in such -cases war was only justified if satisfaction was not given by the -foreign State. Four _fetiales_ used to be sent as ambassadors to the -foreign State from which satisfaction was asked. If such satisfaction -was refused, war was formally declared by one of the _fetiales_ throwing -a lance from the Roman frontier into the foreign land. For warfare -itself no legal rules existed, but discretion only, and there are -examples enough of great cruelty on the part of the Romans. Legal rules -existed, however, for the end of war. War could be ended, first, through -a treaty of peace, which was then always a treaty of friendship. War -could, secondly, be ended by surrender (_deditio_). Such surrender -spared the enemy their lives and property. War could, thirdly and -lastly, be ended through conquest of the enemy's country (_occupatio_). -It was in this case that the Romans could act according to discretion -with the lives and the property of the enemy. - -From this sketch of their rules concerning external relations, it -becomes apparent that the Romans gave to the future the example of a -State with _legal_ rules for its foreign relations. As the legal people -_par excellence_, the Romans could not leave their international -relations without legal treatment. And though this legal treatment can -in no way be compared to modern International Law, yet it constitutes a -contribution to the Law of Nations of the future, in so far as its -example furnished many arguments to those to whose efforts we owe the -very existence of our modern Law of Nations. - -[Sidenote: No need for a Law of Nations during the Middle Ages.] - -[p] 41. The Roman Empire gradually absorbed nearly the whole civilised -ancient world, so far as it was known to the Romans. They hardly knew of -any independent civilised States outside the borders of their empire. -There was, therefore, neither room nor need for an International Law as -long as this empire existed. It is true that at the borders of this -world-empire there were always wars, but these wars gave opportunity for -the practice of a few rules and usages only. And matters did not change -when under Constantine the Great (313-337) the Christian faith became -the religion of the empire and Byzantium its capital instead of Rome, -and, further, when in 395 the Roman Empire was divided into the Eastern -and the Western Empire. This Western Empire disappeared in 476, when -Romulus Augustus, the last emperor, was deposed by Odoacer, the leader -of the Germanic soldiers, who made himself ruler in Italy. The land of -the extinct Western Roman Empire came into the hands of different -peoples, chiefly of Germanic extraction. In Gallia the kingdom of the -Franks springs up in 486 under Chlodovech the Merovingian. In Italy, the -kingdom of the Ostrogoths under Theoderich the Great, who defeated -Odoacer, rises in 493. In Spain the kingdom of the Visigoths appears in -507. The Vandals had, as early as in 429, erected a kingdom in Africa, -with Carthage as its capital. The Saxons had already gained a footing in -Britannia in 449. - -All these peoples were barbarians in the strict sense of the term. -Although they had adopted Christianity, it took hundreds of years to -raise them to the standard of a more advanced civilisation. And, -likewise, hundreds of years passed before different nations came to -light out of the amalgamation of the various peoples that had conquered -the old Roman Empire with the residuum of the population of that empire. -It was in the eighth century that matters became more settled. -Charlemagne built up his vast Frankish Empire, and was, in 800, crowned -Roman Emperor by Pope Leo III. Again the whole world seemed to be one -empire, headed by the Emperor as its temporal, and by the Pope as its -spiritual, master, and for an International Law there was therefore no -room and no need. But the Frankish Empire did not last long. According -to the Treaty of Verdun, it was, in 843, divided into three parts, and -with that division the process of development set in, which led -gradually to the rise of the several States of Europe. - -In theory the Emperor of the Germans remained for hundreds of years to -come the master of the world, but in practice he was not even master at -home, as the German Princes step by step succeeded in establishing their -independence. And although theoretically the world was well looked after -by the Emperor as its temporal and the Pope as its spiritual head, there -were constantly treachery, quarrelling, and fighting going on. War -practice was the most cruel possible. It is true that the Pope and the -Bishops succeeded sometimes in mitigating such practice, but as a rule -there was no influence of the Christian teaching visible. - -[Sidenote: The Fifteenth and Sixteenth Centuries.] - -[p] 42. The necessity for a Law of Nations did not arise until a -multitude of States absolutely independent of one another had -successfully established themselves. The process of development, -starting from the Treaty of Verdun of 843, reached that climax with the -reign of Frederic III., Emperor of the Germans from 1440 to 1493. He was -the last of the emperors crowned in Rome by the hands of the Popes. At -that time Europe was, in fact, divided up into a great number of -independent States, and thenceforth a law was needed to deal with the -international relations of these Sovereign States. Seven factors of -importance prepared the ground for the growth of principles of a future -International Law. - -(1) There were, first, the Civilians and the Canonists. Roman Law was in -the beginning of the twelfth century brought back to the West through -Irnerius, who taught this law at Bologna. He and the other _glossatores_ -and _post-glossatores_ considered Roman Law the _ratio scripta_, the law -_par excellence_. These Civilians maintained that Roman Law was the law -of the civilised world _ipso facto_ through the emperors of the Germans -being the successors of the emperors of Rome. Their commentaries to the -_Corpus Juris Civilis_ touch upon many questions of the future -International Law which they discuss from the basis of Roman Law. - -The Canonists, on the other hand, whose influence was unshaken till the -time of the Reformation, treated from a moral and ecclesiastical point -of view many questions of the future International Law concerning -war.[35] - -[Footnote 35: See Holland, Studies, pp. 40-58; Walker, History, I. pp. -204-212.] - -(2) There were, secondly, collections of Maritime Law of great -importance which made their appearance in connection with international -trade. From the eighth century the world trade, which had totally -disappeared in consequence of the downfall of the Roman Empire and the -destruction of the old civilisation during the period of the Migration -of the Peoples, began slowly to develop again. The sea trade specially -flourished and fostered the growth of rules and customs of Maritime Law, -which were collected into codes and gained some kind of international -recognition. The more important of these collections are the following: -The _Consolato del Mare_, a private collection made at Barcelona in -Spain in the middle of the fourteenth century; the _Laws of Oleron_, a -collection, made in the twelfth century, of decisions given by the -maritime court of Oleron in France; the _Rhodian Laws_, a very old -collection of maritime laws which probably was put together between the -sixth and the eighth centuries;[36] the _Tabula Amalfitana_, the -maritime laws of the town of Amalfi in Italy, which date at latest from -the tenth century; the _Leges Wisbuenses_, a collection of maritime laws -of Wisby on the island of Gothland, in Sweden, dating from the -fourteenth century. - -[Footnote 36: See Ashburner, "The Rhodian Sea Law" (1909), Introduction, -p. cxii.] - -The growth of international trade caused also the rise of the -controversy regarding the freedom of the high seas (see below, [p] 248), -which indirectly influenced the growth of an International Law (see -below, [p][p] 248-250). - -(3) A third factor was the numerous leagues of trading towns for the -protection of their trade and trading citizens. The most celebrated of -these leagues is the Hanseatic, formed in the thirteenth century. These -leagues stipulated for arbitration on controversies between their member -towns. They acquired trading privileges in foreign States. They even -waged war, when necessary, for the protection of their interests. - -(4) A fourth factor was the growing custom on the part of the States of -sending and receiving permanent legations. In the Middle Ages the Pope -alone had a permanent legation at the court of the Frankish kings. -Later, the Italian Republics, as Venice and Florence for instance, were -the first States to send out ambassadors, who took up their residence -for several years in the capitals of the States to which they were sent. -At last, from the end of the fifteenth century, it became a universal -custom for the kings of the different States to keep permanent legations -at one another's capital. The consequence was that an uninterrupted -opportunity was given for discussing and deliberating common -international interests. And since the position of ambassadors in -foreign countries had to be taken into consideration, international -rules concerning inviolability and exterritoriality of foreign envoys -gradually grew up. - -(5) A fifth factor was the custom of the great States of keeping -standing armies, a custom which also dates from the fifteenth century. -The uniform and stern discipline in these armies favoured the rise of -more universal rules and practices of warfare. - -(6) A sixth factor was the Renaissance and the Reformation. The -Renaissance of science and art in the fifteenth century, together with -the resurrection of the knowledge of antiquity, revived the -philosophical and aesthetical ideals of Greek life and transferred them -to modern life. Through their influence the spirit of the Christian -religion took precedence of its letter. The conviction awoke everywhere -that the principles of Christianity ought to unite the Christian world -more than they had done hitherto, and that these principles ought to be -observed in matters international as much as in matters national. The -Reformation, on the other hand, put an end to the spiritual mastership -of the Pope over the civilised world. Protestant States could not -recognise the claim of the Pope to arbitrate as of right in their -conflicts either between one another or between themselves and Catholic -States. - -(7) A seventh factor made its appearance in connection with the schemes -for the establishment of eternal peace which arose from the beginning of -the fourteenth century. Although these schemes were utopian, they -nevertheless must have had great influence by impressing upon the -Princes and the nations of Christendom the necessity for some kind of -organisation of the numerous independent States into a community. The -first of these schemes was that of the French lawyer, Pierre Dubois, -who, as early as 1306, in "De Recuperatione Terre Sancte" proposed an -alliance between all Christian Powers for the purpose of the maintenance -of peace and the establishment of a Permanent Court of Arbitration for -the settlement of differences between the members of the alliance.[37] -Another project arose in 1461, when Podiebrad, King of Bohemia from -1420-1471, adopted the scheme of his Chancellor, Antoine Marini, and -negotiated with foreign courts the foundation of a Federal State to -consist of all the existing Christian States with a permanent Congress, -seated at Basle, of ambassadors of all the member States as the highest -organ of the Federation.[38] A third plan was that of Sully, adopted by -Henri IV. of France, which proposed the division of Europe into fifteen -States and the linking together of these into a federation with a -General Council as its highest organ, consisting of Commissioners -deputed by the member States.[39] A fourth project was that of Emeric -Crucee, who, in 1623, proposed the establishment of a Union consisting -not only of the Christian States but of all States then existing in the -whole of the world, with a General Council as its highest organ, seated -at Venice, and consisting of ambassadors of all the member States of the -Union.[40] - -[Footnote 37: See Meyer, "Die staats- und voelkerrechtlichen Ideen von -Pierre Dubois" (1909); Schuecking, "Die Organisation der Welt" (1909), -pp. 28-30; Vesnitch, "Deux Precurseurs Francais du Pacifism, etc." -(1911), pp. 1-29.] - -[Footnote 38: See Schwitzky, "Der Europaeische Fuerstenbund Georg's von -Podiebrad" (1909), and Schuecking, "Die Organisation der Welt" (1909), -pp. 32-36.] - -[Footnote 39: See Nys, "Etudes de Droit International et de Droit -Politique" (1896), pp. 301-306, and Darby, "International Arbitration" -(4th ed. 1904), pp. 10-21.] - -[Footnote 40: See Balch, "Le Nouveau Cynee de Emeric Crucee" (1909); -Darby, "International Arbitration" (4th ed. 1904), pp. 22-33; Vesnitch, -"Deux Precurseurs Francais du Pacifism, etc." (1911), pp. 29-54. - -The schemes enumerated in the text are those which were advanced before -the appearance of Grotius's work "De Jure Belli ac Pacis" (1625). The -numerous plans which made their appearance afterwards--that of the -Landgrave of Hesse-Rheinfels, 1666; of Charles, Duke of Lorraine, 1688; -of William Penn, 1693; of John Bellers, 1710; of the Abbe de St. Pierre -(1658-1743); of Kant, 1795; and of others--are all discussed in -Schuecking, "Die Organisation der Welt" (1909), and Darby, "International -Arbitration" (4th ed. 1904). They are as utopian as the pre-Grotian -schemes, but they are nevertheless of great importance. They preached -again and again the gospel of the organisation of the Family of Nations, -and although their ideal has not been and can never be realised, they -drew the attention of public opinion to the fact that the international -relations of States should not be based on arbitrariness and anarchy, -but on rules of law and comity. And thereby they have indirectly -influenced the gradual growth of rules of law for these international -relations.] - - -II - -DEVELOPMENT OF THE LAW OF NATIONS AFTER GROTIUS - - Lawrence, [p][p] 29-53, and Essays, pp. 147-190--Halleck, I. pp. - 12-45--Walker, History, I. pp. 138-202--Taylor, [p][p] 65-95--Nys, I. - pp. 19-46--Martens, I. [p][p] 21-33--Fiore, I. Nos. 32-52--Calvo, I. - pp. 32-101--Bonfils, Nos. 87-146--Despagnet, Nos. - 20-27--Merignhac, I. pp. 43-78--Ullmann, [p][p] 15-17--Laurent, - "Histoire du Droit des Gens, &c.," 14 vols. (2nd ed. - 1861-1868)--Wheaton, "Histoire des Progres du Droit des Gens en - Europe" (1841)--Bulmerincq, "Die Systematik des Voelkerrechts" - (1858)--Pierantoni, "Storia del diritto internazionale nel secolo - XIX." (1876)--Hosack, "Rise and Growth of the Law of Nations" - (1883), pp. 227-320--Brie, "Die Fortschritte des Voelkerrechts seit - dem Wiener Congress" (1890)--Gareis, "Die Fortschritte des - internationalen Rechts im letzten Menschenalter" (1905)--Dupuis, - "Le Principe d'Equilibre et le Concert Europeen de la Paix de - Westphalie a l'Acte d'Algesiras" (1909)--Strupp, "Urkunden zur - Geschichte des Voelkerrechts," 2 vols. (1911). - -[Sidenote: The time of Grotius.] - -[p] 43. The seventeenth century found a multitude of independent States -established and crowded on the comparatively small continent of Europe. -Many interests and aims knitted these States together into a community -of States. International lawlessness was henceforth an impossibility. -This was the reason for the fact that Grotius's work "De Jure Belli ac -Pacis libri III.," which appeared in 1625, won the ear of the different -States, their rulers, and their writers on matters international. Since -a Law of Nations was now a necessity, since many principles of such a -law were already more or less recognised and appeared again among the -doctrines of Grotius, since the system of Grotius supplied a legal basis -to most of those international relations which were at the time -considered as wanting such basis, the book of Grotius obtained such a -world-wide influence that he is correctly styled the "Father of the Law -of Nations." It would be very misleading and in no way congruent with -the facts of history to believe that Grotius's doctrines were as a body -at once universally accepted. No such thing happened, nor could have -happened. What did soon take place was that, whenever an international -question of legal importance arose, Grotius's book was consulted, and -its authority was so overwhelming that in many cases its rules were -considered right. How those rules of Grotius, which have more or less -quickly been recognised by the common consent of the writers on -International Law, have gradually received similar acceptance at the -hands of the Family of Nations is a process of development which in each -single phase cannot be ascertained. It can only be stated that at the -end of the seventeenth century the civilised States considered -themselves bound by a Law of Nations the rules of which were to a great -extent the rules of Grotius. This does not mean that these rules have -from the end of that century never been broken. On the contrary, they -have frequently been broken. But whenever this occurred, the States -concerned maintained either that they did not intend to break these -rules, or that their acts were in harmony with them, or that they were -justified by just causes and circumstances in breaking them. And the -development of the Law of Nations did not come to a standstill with the -reception of the bulk of the rules of Grotius. More and more rules were -gradually required and therefore gradually grew. All the historically -important events and facts of international life from the time of -Grotius down to our own have, on the one hand, given occasion to the -manifestation of the existence of a Law of Nations, and, on the other -hand, in their turn made the Law of Nations constantly and gradually -develop into a more perfect and more complete system of legal rules. - -It serves the purpose to divide the history of the development of the -Law of Nations from the time of Grotius into seven periods--namely, -1648-1721, 1721-1789, 1789-1815, 1815-1856, 1856-1874, 1874-1899, -1899-1911. - -[Sidenote: The period 1648-1721.] - -[p] 44. The ending of the Thirty Years' War through the Westphalian Peace -of 1648 is the first event of great importance after the death of -Grotius in 1645. What makes remarkable the meetings of Osnaburg, where -the Protestant Powers met, and Muenster, where the Catholic Powers met, -is the fact that there was for the first time in history a European -Congress assembled for the purpose of settling matters international by -common consent of the Powers. With the exception of England, Russia, and -Poland, all the important Christian States were represented at this -congress, as were also the majority of the minor Powers. The -arrangements made by this congress show what a great change had taken -place in the condition of matters international. The Swiss Confederation -and the Netherlands were recognised as independent States. The 355 -different States which belonged to the German Empire were practically, -although not theoretically, recognised as independent States which -formed a Confederation under the Emperor as its head. Of these 355 -States, 150 were secular States governed by hereditary monarchs -(Electors, Dukes, Landgraves, and the like), 62 were free-city States, -and 123 were ecclesiastical States governed by archbishops and other -Church dignitaries. The theory of the unity of the civilised world under -the German Emperor and the Pope as its temporal and spiritual heads -respectively was buried for ever. A multitude of recognised independent -States formed a community on the basis of equality of all its members. -The conception of the European equilibrium[41] made its appearance and -became an implicit principle as a guaranty of the independence of the -members of the Family of Nations. Protestant States took up their -position within this family along with Catholic States, as did republics -along with monarchies. - -[Footnote 41: See below, pp. 64, 65, 80, 193, 307.] - -In the second half of the seventeenth century the policy of conquest -initiated by Louis XIV. of France led to numerous wars. But Louis XIV. -always pleaded a just cause when he made war, and even the establishment -of the ill-famed so-called Chambers of Reunion (1680-1683) was done -under the pretext of law. There was no later period in history in which -the principles of International Law were more frivolously violated, but -the violation was always cloaked by some excuse. Five treaties of peace -between France and other Powers during the reign of Louis XIV. are of -great importance. (1) The Peace of the Pyrenees, which ended in 1659 the -war between France and Spain, who had not come to terms at the -Westphalian Peace. (2) The Peace of Aix-la-Chapelle, which ended in 1668 -another war between France and Spain, commenced in 1667 because France -claimed the Spanish Netherlands from Spain. This peace was forced upon -Louis XIV. through the triple alliance between England, Holland, and -Sweden. (3) The Peace of Nymeguen, which ended in 1678 the war -originally commenced by Louis XIV. in 1672 against Holland, into which -many other European Powers were drawn. (4) The Peace of Ryswick, which -ended in 1697 the war that had existed since 1688 between France on one -side, and, on the other, England, Holland, Denmark, Germany, Spain, and -Savoy. (5) The Peace of Utrecht, 1713, and the Peace of Rastadt and -Baden, 1714, which ended the war of the Spanish Succession that had -lasted since 1701 between France and Spain on the one side, and, on the -other, England, Holland, Portugal, Germany, and Savoy. - -But wars were not only waged between France and other Powers during this -period. The following treaties of peace must therefore be -mentioned:--(1) The Peaces of Roeskild (1658), Oliva (1660), Copenhagen -(also 1660), and Kardis (1661). The contracting Powers were Sweden, -Denmark, Poland, Prussia, and Russia. (2) The Peace of Carlowitz, 1699, -between Turkey, Austria, Poland, and Venice. (3) The Peace of Nystaedt, -1721, between Sweden and Russia under Peter the Great. - -The year 1721 is epoch-making because with the Peace of Nystaedt Russia -enters as a member into the Family of Nations, in which she at once held -the position of a Great Power. The period ended by the year 1721 shows -in many points progressive tendencies regarding the Law of Nations. Thus -the right of visit and search on the part of belligerents over neutral -vessels becomes recognised. The rule "free ships, free goods," rises as -a postulate, although it was not universally recognised till 1856. The -effectiveness of blockades, which were first made use of in war by the -Netherlands at the end of the sixteenth century, rose as a postulate and -became recognised in treaties between Holland and Sweden (1667) and -Holland and England (1674), although its universal recognition was not -realised until the nineteenth century. The freedom of the high seas, -claimed by Grotius and others, began gradually to obtain recognition in -practice, although it did likewise not meet with universal acceptance -till the nineteenth century. The balance of power is solemnly recognised -by the Peace of Utrecht as a principle of the Law of Nations. - -[Sidenote: The period 1721-1789.] - -[p] 45. Before the end of the first half of the eighteenth century peace -in Europe was again disturbed. The rivalry between Austria and Prussia, -which had become a kingdom in 1701 and the throne of which Frederick II. -had ascended in 1740, led to several wars in which England, France, -Spain, Bavaria, Saxony, and Holland took part. Several treaties of peace -were successively concluded which tried to keep up or re-establish the -balance of power in Europe. The most important of these treaties are: -(1) The Peace of Aix-la-Chapelle of 1748 between France, England, -Holland, Austria, Prussia, Sardinia, Spain, and Genoa. (2) The Peace of -Hubertsburg and the Peace of Paris, both of 1763, the former between -Prussia, Austria, and Saxony, the latter between England, France, and -Spain. (3) The Peace of Versailles of 1783 between England, the United -States of America, France, and Spain. - -These wars gave occasion to disputes as to the right of neutrals and -belligerents regarding trade in time of war. Prussia became a Great -Power. The so-called First Armed Neutrality[42] made its appearance in -1780 with claims of great importance, which were not generally -recognised till 1856. The United States of America succeeded in -establishing her independence and became a member of the Family of -Nations, whose future attitude fostered the growth of several rules of -International Law. - -[Footnote 42: See below, Vol. II. [p][p] 289 and 290, where details -concerning the First and Second Armed Neutrality are given.] - -[Sidenote: The period 1789-1815.] - -[p] 46. All progress, however, was endangered, and indeed the Law of -Nations seemed partly non-existent, during the time of the French -Revolution and the Napoleonic wars. Although the French Convention -resolved in 1792 (as stated above, [p] 30) to create a "Declaration of the -Rights of Nations," the Revolutionary Government and afterwards Napoleon -I. very often showed no respect for the rules of the Law of Nations. The -whole order of Europe, which had been built up by the Westphalian and -subsequent treaties of peace for the purpose of maintaining a balance of -power, was overthrown. Napoleon I. was for some time the master of -Europe, Russia and England excepted. He arbitrarily created States and -suppressed them again. He divided existing States into portions and -united separate States. The kings depended upon his goodwill, and they -had to follow orders when he commanded. Especially as regards maritime -International Law, a condition of partial lawlessness arose during this -period. Already in 1793 England and Russia interdicted all navigation -with the ports of France, with the intention of subduing her by famine. -The French Convention answered with an order to the French fleet to -capture all neutral ships carrying provisions to the ports of the enemy -or carrying enemy goods. Again Napoleon, who wanted to ruin England by -destroying her commerce, announced in 1806 in his Berlin Decrees the -boycott of all English goods. England answered with the blockade of all -French ports and all ports of the allies of France, and ordered her -fleet to capture all ships destined to any such port. - -When at last the whole of Europe was mobilised against Napoleon and he -was finally defeated, the whole face of Europe was changed, and the -former order of things could not possibly be restored. It was the task -of the European Congress of Vienna in 1814 and 1815 to create a new -order and a fresh balance of power. This new order comprised chiefly the -following arrangements:--The Prussian and the Austrian monarchies were -re-established, as was also the Germanic Confederation, which consisted -henceforth of thirty-nine member States. A kingdom of the Netherlands -was created out of Holland and Belgium. Norway and Sweden became a Real -Union. The old dynasties were restored in Spain, in Sardinia, in -Tuscany, and in Modena, as was also the Pope in Rome. To the nineteen -cantons of the Swiss Confederation were added those of Geneva, Valais, -and Neuchatel, and this Confederation was neutralised for all the -future. - -But the Vienna Congress did not only establish a new political order in -Europe, it also settled some questions of International Law. Thus, free -navigation was agreed to on so-called international rivers, which are -rivers navigable from the Open Sea and running through the land of -different States. It was further arranged that henceforth diplomatic -agents should be divided into three classes (Ambassadors, Ministers, -Charges d'Affaires). Lastly, a universal prohibition of the trade in -negro slaves was agreed upon. - -[Sidenote: The period 1815-1856.] - -[p] 47. The period after the Vienna Congress begins with the so-called -Holy Alliance. Already on September 26, 1815, before the second Peace of -Paris, the Emperors of Russia and Austria and the King of Prussia called -this alliance into existence, the object of which was to make it a duty -upon its members to apply the principles of Christian morality in the -administration of the home affairs of their States as well as in the -conduct of their international relations. After the Vienna Congress the -sovereigns of almost all the European States had joined that alliance -with the exception of England. George IV., at that time prince-regent -only, did not join, because the Holy Alliance was an alliance not of the -States, but of sovereigns, and therefore was concluded without the -signatures of the respective responsible Ministers, whereas according -to the English Constitution the signature of such a responsible Minister -would have been necessary. - -The Holy Alliance had not as such any importance for International Law, -for it was a religious, moral, and political, but scarcely a legal -alliance. But at the Congress of Aix-la-Chapelle in 1818, which the -Emperors of Russia and Austria and the King of Prussia attended in -person, and where it might be said that the principles of the Holy -Alliance were practically applied, the Great Powers signed a -Declaration,[43] in which they solemnly recognised the Law of Nations as -the basis of all international relations, and in which they pledged -themselves for all the future to act according to its rules. The leading -principle of their politics was that of legitimacy,[44] as they -endeavoured to preserve everywhere the old dynasties and to protect the -sovereigns of the different countries against revolutionary movements of -their subjects. This led, in fact, to a dangerous neglect of the -principles of International Law regarding intervention. The Great -Powers, with the exception of England, intervened constantly with the -domestic affairs of the minor States in the interest of the legitimate -dynasties and of an anti-liberal legislation. The Congresses at Troppau, -1820, Laibach, 1821, Verona, 1822, occupied themselves with a -deliberation on such interventions. - -[Footnote 43: See Martens, N.R. IV. p. 560.] - -[Footnote 44: See Brockhaus, "Das Legitimitaetsprincip" (1868).] - -The famous Monroe Doctrine (see below, [p] 139) owes its origin to that -dangerous policy of the European Powers as regards intervention, -although this doctrine embraces other points besides intervention. As -from 1810 onwards the Spanish colonies in South America were falling off -from the mother country and declaring their independence, and as Spain -was, after the Vienna Congress, thinking of reconquering these States -with the help of other Powers who upheld the principle of legitimacy, -President Monroe delivered his message on December 2, 1823, which -pointed out amongst other things, that the United States could not allow -the interference of a European Power with the States of the American -continent. - -Different from the intervention of the Powers of the Holy Alliance in -the interest of legitimacy were the two interventions in the interest of -Greece and Belgium. England, France, and Russia intervened in 1827 in -the struggle of Turkey with the Greeks, an intervention which led -finally in 1830 to the independence of Greece. And the Great Powers of -the time, namely, England, Austria, France, Prussia, and Russia, invited -by the provisional Belgian Government, intervened in 1830 in the -struggle of the Dutch with the Belgians and secured the formation of a -separate Kingdom of Belgium. - -It may be maintained that the establishment of Greece and Belgium -inferred the breakdown of the Holy Alliance. But it was not till the -year 1848 that this alliance was totally swept away through the -disappearance of absolutism and the victory of the constitutional system -in most States of Europe. Shortly afterwards, in 1852, Napoleon III., -who adopted the principle of nationality,[45] became Emperor of France. -Since he exercised preponderant influence in Europe, one may say that -this principle of nationality superseded in European politics the -principle of legitimacy. - -[Footnote 45: See Bulmerincq, "Praxis, Theorie und Codification des -Voelkerrechts" (1874), pp. 53-70.] - -The last event of this period is the Crimean War, which led to the Peace -as well as to the Declaration of Paris in 1856. This war broke out in -1853 between Russia and Turkey. In 1854, England, France, and Sardinia -joined Turkey, but the war continued nevertheless for another two -years. Finally, however, Russia was defeated, a Congress assembled at -Paris, where England, France, Austria, Russia, Sardinia, Turkey, and -eventually Prussia, were represented, and peace was concluded in March -1856. In the Peace Treaty, Turkey is expressly received as a member into -the Family of Nations. Of greater importance, however, is the celebrated -Declaration of Paris regarding maritime International Law which was -signed on April 16, 1856, by the delegates of the Powers that had taken -part in the Congress. This declaration abolished privateering, -recognised the rules that enemy goods on neutral vessels and that -neutral goods on enemy vessels cannot be confiscated, and stipulated -that a blockade in order to be binding must be effective. Together with -the fact that at the end of the first quarter of the nineteenth century -the principle of the freedom of the high seas[46] became universally -recognised, the Declaration of Paris is a prominent landmark in the -progress of the Law of Nations. The Powers that had not been represented -at the Congress of Paris were invited to sign the Declaration -afterwards, and the majority of the members of the Family of Nations did -sign it before the end of the year 1856. The few States, such as the -United States of America, Spain, Mexico, and others, which did not then -sign,[47] have in practice since 1856 not acted in opposition to the -Declaration, and one may therefore, perhaps, maintain that the -Declaration of Paris has already become or will soon become universal -International Law through custom. Spain and Mexico, however, signed the -Declaration in 1907, as Japan had already done in 1886. - -[Footnote 46: See below, [p] 251.] - -[Footnote 47: It should be mentioned that the United States did not sign -the Declaration of Paris because it did not go far enough, and did not -interdict capture of private enemy vessels.] - -[Sidenote: The period 1856-1874.] - -[p] 48. The next period, the time from 1856 to 1874, is of prominent -importance for the development of the Law of Nations. Under the aegis of -the principle of nationality, Austria turns in 1867 into the dual -monarchy of Austria-Hungary, and Italy as well as Germany becomes -united. The unity of Italy rises out of the war of France and Sardinia -against Austria in 1859, and Italy ranges henceforth among the Great -Powers of Europe. The unity of Germany is the combined result of three -wars: that of Austria and Prussia in 1864 against Denmark on account of -Schleswig-Holstein, that of Prussia and Italy against Austria in 1866, -and that of Prussia and the allied South German States against France in -1870. The defeat of France in 1870 had the consequence that Italy took -possession of the Papal States, whereby the Pope disappeared from the -number of governing sovereigns. - -The United States of America rise through the successful termination of -the Civil War in 1865 to the position of a Great Power. Several rules of -maritime International Law owe their further development to this war. -And the instructions concerning warfare on land, published in 1863 by -the Government of the United States, represent the first step towards -codification of the Laws of War. In 1864, the Geneva Convention for the -amelioration of the condition of soldiers wounded in armies in the field -is, on the initiation of Switzerland, concluded by nine States, and in -time almost all civilised States became parties to it. In 1868, the -Declaration of St. Petersburg, interdicting the employment in war of -explosive balls below a certain weight, is signed by many States. Since -Russia in 1870 had arbitrarily shaken off the restrictions of Article 11 -of the Peace Treaty of Paris of 1856 neutralising the Black Sea, the -Conference of London, which met in 1871 and was attended by the -representatives of the Powers which were parties to the Peace of Paris -of 1856, solemnly proclaimed "that it is an essential principle of the -Law of Nations that no Power can liberate itself from the engagements of -a treaty, or modify the stipulations thereof, unless with the consent of -the contracting Powers by means of an amicable arrangement." The last -event in this period is the Conference of Brussels of 1874 for the -codification of the rules and usages of war on land. Although the signed -code was never ratified, the Brussels Conference was nevertheless -epoch-making, since it showed the readiness of the Powers to come to an -understanding regarding such a code. - -[Sidenote: The period 1874-1899.] - -[p] 49. After 1874 the principle of nationality continues to exercise its -influence as before. Under its aegis takes place the partial decay of -the Ottoman Empire. The refusal of Turkey to introduce reforms regarding -the Balkan population led in 1877 to war between Turkey and Russia, -which was ended in 1878 by the peace of San Stefano. As the conditions -of this treaty would practically have done away with Turkey in Europe, -England intervened and a European Congress assembled at Berlin in June -1878 which modified materially the conditions of the Peace of San -Stefano. The chief results of the Berlin Congress are:--(1) Servia, -Roumania, Montenegro become independent and Sovereign States; (2) -Bulgaria becomes an independent principality under Turkish suzerainty; -(3) the Turkish provinces of Bosnia and Herzegovina come under the -administration of Austria-Hungary; (4) a new province under the name of -Eastern Rumelia is created in Turkey and is to enjoy great local -autonomy (according to an arrangement of the Conference of -Constantinople in 1885-1886 a bond is created between Eastern Rumelia -and Bulgaria by the appointment of the Prince of Bulgaria as governor of -Eastern Rumelia); (5) free navigation on the Danube from the Iron Gates -to its mouth in the Black Sea is proclaimed. - -In 1889 Brazil becomes a Republic and a Federal State (the United States -of Brazil). In the same year the first Pan-American Congress meets at -Washington. - -In 1897 Crete revolts against Turkey, war breaks out between Greece and -Turkey, the Powers interfere, and peace is concluded at Constantinople. -Crete becomes an autonomous half-Sovereign State under Turkish -suzerainty with Prince George of Greece as governor, who, however, -retires in 1906. - -In the Far East war breaks out in 1894 between China and Japan, on -account of Korea. China is defeated, and peace is concluded in 1895 at -Shimonoseki.[48] Japan henceforth ranks as a Great Power. That she must -now be considered a full member of the Family of Nations becomes -apparent from the treaties concluded soon afterwards by her with other -Powers for the purpose of abolishing their consular jurisdiction within -the boundaries of Japan. - -[Footnote 48: See Martens, N.R.G. 2nd Ser. XXI. (1897), p. 641.] - -In America the United States intervene in 1898 in the revolt of Cuba -against the motherland, whereby war breaks out between Spain and the -United States. The defeat of Spain secures the independence of Cuba -through the Peace of Paris[49] of 1898. The United States acquires Porto -Rico and other Spanish West Indian Islands, and, further, the Philippine -Islands, whereby she becomes a colonial Power. - -[Footnote 49: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 74.] - -An event of great importance during this period is the Congo Conference -of Berlin, which took place in 1884-1885, and at which England, Germany, -Austria-Hungary, Belgium, Denmark, Spain, the United States of America, -France, Italy, Holland, Portugal, Russia, Sweden-Norway, and Turkey were -represented. This conference stipulated freedom of commerce, -interdiction of slave-trade, and neutralisation of the territories in -the Congo district, and secured freedom of navigation on the rivers -Congo and Niger. The so-called Congo Free State was recognised as a -member of the Family of Nations. - -A second fact of great importance during this period is the movement -towards the conclusion of international agreements concerning matters of -international administration. This movement finds expression in the -establishment of numerous International Unions with special -International Offices. Thus a Universal Telegraphic Union is established -in 1875, a Universal Postal Union in 1878, a Union for the Protection of -Industrial Property in 1883, a Union for the Protection of Works of -Literature and Art in 1886, a Union for the Publication of Custom -Tariffs in 1890. There were also concluded conventions concerning:--(1) -Private International Law (1900 and 1902); (2) railway transports and -freights (1890); (3) the metric system (1875); (4) phylloxera epidemics -(1878 and 1881); (5) cholera and plague epidemics (1893, 1896, &c.); (6) -Monetary Unions (1865, 1878, 1885, 1892, 1893). - -A third fact of great importance is that in this period a tendency -arises to settle international conflicts more frequently than in former -times by arbitration. Numerous arbitrations are actually taking place, -and several treaties are concluded between different States stipulating -the settlement by arbitration of all conflicts which might arise in -future between the contracting parties. - -The last fact of great importance which is epoch-making for this period -is the Peace Conference of the Hague of 1899. This Conference produces, -apart from three Declarations of minor importance, a Convention for the -Pacific Settlement of International Conflicts, a Convention regarding -the Laws and Customs of War on Land, and a Convention for the Adaptation -to Maritime Warfare of the Principles of the Geneva Convention. It also -formulates, among others, the three wishes (1) that a conference should -in the near future regulate the rights and duties of neutrals, (2) that -a future conference should contemplate the declaration of the -inviolability of private property in naval warfare, (3) that a future -conference should settle the question of the bombardment of ports, -towns, and villages by naval forces. - -[Sidenote: The Twentieth Century.] - -[p] 50. Soon after the Hague Peace Conference, in October 1899, war breaks -out in South Africa between Great Britain and the two Boer Republics, -which leads to the latter's subjugation at the end of 1901. The -assassination on June 10, 1900, of the German Minister and the general -attack on the foreign legations at Peking necessitate united action of -the Powers against China for the purpose of vindicating this violation -of the fundamental rules of the Laws of Nations. Friendly relations are, -however, re-established with China on her submitting to the conditions -enumerated in the Final Protocol of Peking,[50] signed on September 7, -1901. In December 1902 Great Britain, Germany, and Italy institute a -blockade of the coast of Venezuela for the purpose of making her comply -with their demands for the indemnification of their subjects wronged -during civil wars in Venezuela, and the latter consents to pay -indemnities to be settled by a mixed commission of diplomatists.[51] As, -however, Powers other than those blockading likewise claim indemnities, -the matter is referred to the Permanent Court of Arbitration at the -Hague, which in 1904 gives its award[52] in favour of the blockading -Powers. In February 1904 war breaks out between Japan and Russia on -account of Manchuria and Korea. Russia is defeated, and peace is -concluded through the mediation of the United States of America, on -September 5, 1905, at Portsmouth.[53] Korea, now freed from the -influence of Russia, places herself by the Treaty of Seoul[54] of -November 17, 1905, under the protectorate of Japan. Five years later, -however, by the Treaty of Seoul[55] of August 22, 1910, she merges -entirely into Japan. - -[Footnote 50: See Martens, N.R.G. 2nd Ser. XXXII. p. 94.] - -[Footnote 51: See Martens, N.R.G. 3rd Ser. I. p. 46.] - -[Footnote 52: See Martens, N.R.G. 3rd Ser. I. p. 57.] - -[Footnote 53: See Martens, N.R.G. 2nd Ser. XXXIII. p. 3.] - -[Footnote 54: See Martens, N.R.G. 2nd Ser. XXXIV. p. 727.] - -[Footnote 55: See Martens, N.R.G. 3rd Ser. IV. p. 24.] - -The Real Union between Norway and Sweden, which was established by the -Vienna Congress in 1815, is peacefully dissolved by the Treaty of -Karlstad[56] of October 26, 1905. Norway becomes a separate kingdom -under Prince Charles of Denmark, who takes the name of Haakon VIII., and -Great Britain, Germany, Russia, and France guarantee by the Treaty of -Christiania[57] of November 2, 1907, the integrity of Norway on -condition that she would not cede any part of her territory to any -foreign Power. - -[Footnote 56: See Martens, N.R.G. 2nd Ser. XXXIV. p. 700.] - -[Footnote 57: See Martens, N.R.G. 3rd Ser. II. p. 9, and below, [p] 574.] - -The rivalry between France and Germany--the latter protesting against -the position conceded to France in Morocco by the Anglo-French agreement -signed at London on April 8, 1904--leads in January 1906 to the -Conference of Algeciras, in which Great Britain, France, Germany, -Belgium, Holland, Italy, Austria-Hungary, Portugal, Russia, Sweden, -Spain, and the United States of America take part, and where on April 7, -1906, the General Act of the International Conference of Algeciras[58] -is signed. This Act, which recognises, on the one hand, the independence -and integrity of Morocco, and, on the other, equal commercial facilities -for all nations in that country, contains:--(1) A declaration concerning -the organisation of the Moroccan police; (2) regulations concerning the -detection and suppression of the illicit trade in arms; (3) an Act of -concession for a Moorish State Bank; (4) a declaration concerning an -improved yield of the taxes and the creation of new sources of revenue; -(5) regulations respecting customs and the suppression of fraud and -smuggling; (6) a declaration concerning the public services and public -works. But it would seem that this Act has not produced a condition of -affairs of any permanency. Since, in 1911, internal disturbances in -Morocco led to military action on the part of France and Spain, Germany, -in July of the same year, sent a man-of-war to the port of Agadir. Thus -the Moroccan question has been reopened, and fresh negotiations for its -settlement are taking place between the Powers.[59] - -[Footnote 58: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.] - -[Footnote 59: It should be mentioned that by the Treaty of London of -December 13, 1906, Great Britain, France, and Italy agree to co-operate -in maintaining the independence and integrity of Abyssinia; see Martens, -N.R.G. 2nd Ser. XXXV. p. 556.] - -Two events of importance occur in 1908. The first is the merging of the -Congo Free State[60] into Belgium, which annexation is not as yet -recognised by all the Powers. The other is the crisis in the Near East -caused by the ascendency of the so-called Young Turks and the -introduction of a constitution in Turkey. Simultaneously on October 5, -1908, Bulgaria declares herself independent, and Austria-Hungary -proclaims her sovereignty over Bosnia and Herzegovina, which two Turkish -provinces had been under her administration since 1878. This violation -of the Treaty of Berlin considerably endangers the peace of the world, -and an international conference is proposed for the purpose of -reconsidering the settlement of the Near Eastern question. -Austria-Hungary, however, does not consent to this, but prefers to -negotiate with Turkey alone in the matter, and a Protocol is signed by -the two Powers on February 26, 1909, according to which Turkey receives -a substantial indemnity in money and other concessions. Austria-Hungary -negotiates likewise with Montenegro alone, and consents to the -modifications in Article 29 of the Treaty of Berlin concerning the -harbour of Antivary, which is to be freed from Austria-Hungarian control -and is henceforth to be open to warships of all nations. Whereupon the -demand for an international conference is abandoned and the Powers -notify on April 7, 1909, their consent to the abolition of Article 25 -and the amendment of Article 29 of the Treaty of Berlin.[61] - -[Footnote 60: See Martens, N.R.G. 3rd Ser. II. p. 101.] - -[Footnote 61: See Martens, N.R.G. 3rd Ser. II. p. 606.] - -In 1910 Portugal becomes a Republic; but the Powers, although they enter -provisionally into communication with the _de facto_ government, do not -recognise the Republic until September 1911, after the National Assembly -adopted the republican form of government. - -In September 1911 war breaks out between Italy and Turkey, on account of -the alleged maltreatment of Italian subjects in Tripoli. - -International Law as a body of rules for the international conduct of -States makes steady progress during this period. This is evidenced by -congresses, conferences, and law-making treaties. Of conferences and -congresses must be mentioned the second, third, and fourth Pan-American -Congresses,[62] which take place at Mexico in 1901, at Rio in 1906, and -at Buenos Ayres in 1910. Although the law-making treaties of these -congresses have not found ratification, their importance cannot be -denied. Further, in 1906 a conference assembles in Geneva for the -purpose of revising the Geneva Convention of 1864 concerning the wounded -in land warfare, and on July 6, 1906, the new Geneva[63] Convention is -signed. Of the greatest importance, however, are the second Hague Peace -Conference of 1907 and the Naval Conference of London of 1898-9. - -[Footnote 62: See Moore, VI. [p] 969; Fried, "Pan-America" (1910); -Barrett, "The Pan-American Union" (1911).] - -[Footnote 63: See Martens, N.R.G. 3rd Ser. II. p. 323.] - -The second Peace Conference assembles at the Hague on June 15, 1907. -Whereas at the first there were only 26 States represented, 44 are -represented at the second Peace Conference. The result of this -Conference is contained in its Final Act,[64] which is signed on October -18, 1907, and embodies no fewer than thirteen law-making Conventions -besides a declaration of minor importance. Of these Conventions, 1, 4, -and 10 are mere revisions of Conventions agreed upon at the first Peace -Conference of 1899, but the others are new and concern:--The employment -of force for the recovery of contract debts (2); the commencement of -hostilities (3); the rights and duties of neutrals in land warfare (5); -the status of enemy merchant-ships at the outbreak of hostilities (6); -the conversion of merchantmen into men-of-war (7); the laying of -submarine mines (8); the bombardment by naval forces (9); restrictions -of the right of capture in maritime war (11); the establishment of an -International Prize Court (12); the rights and duties of neutrals in -maritime war (13). - -[Footnote 64: See Martens, N.R.G. 3rd Ser. III. p. 323.] - -The Naval Conference of London assembles on December 4, 1908, for the -purpose of discussing the possibility of creating a code of prize law -without which the International Prize Court, agreed upon at the second -Hague Peace Conference, could not be established, and produces the -Declaration of London, signed on February 26, 1909. This Declaration -contains 71 articles, and settles in nine chapters the law -concerning:--(1) Blockade; (2) contraband; (3) un-neutral service; (4) -destruction of neutral prizes; (5) transfer to a neutral flag; (6) enemy -character; (7) convoy; (8) resistance to search; and (9) compensation. -The Declaration is accompanied by a General Report on its stipulations -which is intended to serve as an official commentary. - -The movement which began in the last half of the nineteenth century -towards the conclusion of international agreements concerning matters of -international administration, develops favourably during this period. -The following conventions are the outcome of this movement:--(1) -Concerning the preservation of wild animals, birds, and fish in Africa -(1900); (2) concerning international hydrographic and biological -investigations in the North Sea (1901); (3) concerning protection of -birds useful for agriculture (1902); (4) concerning the production of -sugar (1902); (5) concerning the White Slave traffic (1904); (6) -concerning the establishment of an International Agricultural Institute -at Rome (1905); (7) concerning unification of the Pharmacopoeial -Formulas (1906); (8) concerning the prohibition of the use of white -phosphorus (1906); (9) concerning the prohibition of night work for -women (1906); (10) concerning the international circulation of motor -vehicles (1909). - -It is, lastly, of the greatest importance to mention that the so-called -peace movement,[65] which aims at the settlement of all international -disputes by arbitration or judicial decision of an International Court, -gains considerable influence over the Governments and public opinion -everywhere since the first Hague Peace Conference. A great number of -arbitration treaties are agreed upon, and the Permanent Court of -Arbitration established at the Hague gives its first award[66] in a case -in 1902 and its ninth in 1911. The influence of these decisions upon the -peaceful settlement of international differences generally is enormous, -and it may confidently be expected that the third Hague Peace Conference -will make arbitration obligatory for some of the matters which do not -concern the vital interests, the honour, and the independence of the -States. It is a hopeful sign that, whereas most of the existing -arbitration treaties exempt conflicts which concern the vital -interests, the honour, and the independence, Argentina and Chili in -1902, Denmark and Holland in 1903, Denmark and Italy in 1905, Denmark -and Portugal in 1907, Argentina and Italy in 1907, the Central American -Republics of Costa Rica, Guatemala, Honduras, Nicaragua, and San -Salvador in 1907, Italy and Holland in 1907, entered into general -arbitration treaties according to which all differences, without any -exception, shall be settled by arbitration.[67] - -[Footnote 65: See Fried, "Handbuch der Friedensbewegung," 2nd ed., 2 -vols. (1911).] - -[Footnote 66: See below, [p] 476.] - -[Footnote 67: The general arbitration treaties concluded in August 1911 -by the United States with Great Britain and France have not yet been -ratified, as the consent of the American Senate is previously required.] - -[Sidenote: Six Lessons of the History of the Law of Nations.] - -[p] 51. It is the task of history, not only to show how things have grown -in the past, but also to extract a moral for the future out of the -events of the past. Six morals can be said to be deduced from the -history of the development of the Law of Nations: - -(1) The first and principal moral is that a Law of Nations can exist -only if there be an equilibrium, a balance of power, between the members -of the Family of Nations. If the Powers cannot keep one another in -check, no rules of law will have any force, since an over-powerful State -will naturally try to act according to discretion and disobey the law. -As there is not and never can be a central political authority above the -Sovereign States that could enforce the rules of the Law of Nations, a -balance of power must prevent any member of the Family of Nations from -becoming omnipotent. The history of the times of Louis XIV. and Napoleon -I. shows clearly the soundness of this principle.[68] - -[Footnote 68: Attention ought to be drawn to the fact that, although the -necessity of a balance of power is generally recognised, there are some -writers of great authority who vigorously oppose this principle, as, for -instance, Bulmerincq, "Praxis, Theorie und Codification des -Voelkerrechts" (1874), pp. 40-50. On the principle itself see Donnadieu, -"Essai sur la Theorie de l'Equilibre" (1900), and Dupuis, "Le Principe -d'Equilibre et de Concert Europeen" (1909).] - -(2) The second moral is that International Law can develop progressively -only when international politics, especially intervention, are made on -the basis of real State interests. Dynastic wars belong to the past, as -do interventions in favour of legitimacy. It is neither to be feared, -nor to be hoped, that they should occur again in the future. But if they -did, they would hamper the development of the Law of Nations in the -future as they have done in the past. - -(3) The third moral is that the principle of nationality is of such -force that it is fruitless to try to stop its victory. Wherever a -community of many millions of individuals, who are bound together by the -same blood, language, and interests, become so powerful that they think -it necessary to have a State of their own, in which they can live -according to their own ideals and can build up a national civilisation, -they will certainly get that State sooner or later. What international -politics can, and should, do is to enforce the rule that minorities of -individuals of another race shall not be outside the law, but shall be -treated on equal terms with the majority. States embracing a population -of several nationalities can exist and will always exist, as many -examples show. - -(4) The fourth moral is that every progress in the development of -International Law wants due time to ripen. Although one must hope that -the time will come when war will entirely disappear, there is no -possibility of seeing this hope realised in our time. The first -necessities of an eternal peace are that the surface of the earth should -be shared between States of the same standard of civilisation, and that -the moral ideas of the governing classes in all the States of the world -should undergo such an alteration and progressive development as would -create the conviction that arbitral awards and decisions of courts of -justice are alone adequate means for the settlement of international -differences. Eternal peace is an ideal, and in the very term "ideal" is -involved the conviction of the impossibility of its realisation in the -present, although it is a duty to aim constantly at such realisation. -The Permanent Court of Arbitration at the Hague, now established by the -Hague Peace Conference of 1899, is an institution that can bring us -nearer to such realisation than ever could have been hoped. And -codification of parts of the Law of Nations, following the codification -of the rules regarding land warfare and the codification comprised in -the Declaration of London, will in due time arrive, and will make the -legal basis of international intercourse firmer, broader, and more -manifest than before.[69] - -[Footnote 69: See Oppenheim, "Die Zukunft des Voelkerrechts" (1911) where -some progressive steps are discussed which the future may realise.] - -(5) The fifth moral is that the progress of International Law depends to -a great extent upon whether the legal school of International Jurists -prevails over the diplomatic school.[70] The legal school desires -International Law to develop more or less on the lines of Municipal Law, -aiming at the codification of firm, decisive, and unequivocal rules of -International Law, and working for the establishment of international -Courts for the purpose of the administration of international justice. -The diplomatic school, on the other hand, considers International Law to -be, and prefers it to remain, rather a body of elastic principles than -of firm and precise rules. The diplomatic school opposes the -establishment of international Courts because it considers diplomatic -settlement of international disputes, and failing this arbitration, -preferable to international administration of justice by international -Courts composed of permanently appointed judges. There is, however, no -doubt that international Courts are urgently needed, and that the rules -of International Law require now such an authoritative interpretation -and administration as only an international Court can supply. - -[Footnote 70: I name these schools "diplomatic" and "legal" for want of -better denomination. They must, however, not be confounded with the -three schools of the "Naturalists," "Positivists," and "Grotians," -details concerning which will be given below, [p][p] 55-57.] - -(6) The sixth, and last, moral is that the progressive development of -International Law depends chiefly upon the standard of public morality -on the one hand, and, on the other, upon economic interests. The higher -the standard of public morality rises, the more will International Law -progress. And the more important international economic interests grow, -the more International Law will grow. For, looked upon from a certain -stand-point, International Law is, just like Municipal Law, a product of -moral and of economic factors, and at the same time the basis for a -favourable development of moral and economic interests. This being an -indisputable fact, it may, therefore, fearlessly be maintained that an -immeasurable progress is guaranteed to International Law, since there -are eternal moral and economic factors working in its favour. - - -III - -THE SCIENCE OF THE LAW OF NATIONS - - Phillimore, I., Preface to the first edition--Lawrence, [p][p] - 31-36--Manning, pp. 21-65--Halleck, I. pp. 12, 15, 18, 22, 25, 29, - 34, 42--Walker, History, I. pp. 203-337, and "The Science of - International Law" (1893), _passim_--Taylor, [p][p] - 37-48--Wheaton, [p][p] 4-13--Rivier in Holtzendorff, I. pp. - 337-475--Nys, I. pp. 213-328--Martens, I. [p][p] 34-38--Fiore, I. - Nos. 53-88, 164-185, 240-272--Calvo, I. pp. 27-34, 44-46, 51-55, - 61-63, 70-73, 101-137--Bonfils, Nos. 147-153--Despagnet, Nos. - 28-35--Ullmann, [p] 18--Kaltenborn, "Die Vorlaeufer des Hugo - Grotius" (1848)--Holland, Studies, pp. 1-58, 168-175--Westlake, - Chapters, pp. 23-77--Ward, "Enquiry into the Foundation and - History of the Law of Nations," 2 vols. (1795)--Nys, "Le droit de - la guerre et les precurseurs de Grotius" (1882), "Notes pour - servir a l'histoire ... du droit international en Angleterre" - (1888), "Les origines du droit international" (1894)--Wheaton, - "Histoire des progres du droit des gens en Europe" - (1841)--Oppenheim in A.J. I. (1908), pp. 313-356--Pollock in the - Cambridge Modern History, vol. XII. (1910), pp. 703-729--See also - the bibliographies enumerated below in [p] 61. - -[Sidenote: Forerunners of Grotius.] - -[p] 52. The science of the modern Law of Nations commences from Grotius's -work, "De Jure Belli ac Pacis libri III.," because in it a fairly -complete system of International Law was for the first time built up as -an independent branch of the science of law. But there were many writers -before Grotius who wrote on special parts of the Law of Nations. They -are therefore commonly called "Forerunners of Grotius." The most -important of these forerunners are the following: (1) Legnano, Professor -of Law in the University of Bologna, who wrote in 1360 his book "De -bello, de represaliis, et de duello," which was, however, not printed -before 1477; (2) Belli, an Italian jurist and statesman, who published -in 1563 his book, "De re militari et de bello"; (3) Brunus, a German -jurist, who published in 1548 his book, "De legationibus"; (4) Victoria, -Professor in the University of Salamanca, who published in 1557 his -"Relectiones theologicae,"[71] which partly deals with the Law of War; -(5) Ayala, of Spanish descent but born in Antwerp, a military judge in -the army of Alexandro Farnese, the Prince of Parma. He published in 1582 -his book, "De jure et officiis bellicis et disciplina militari"; (6) -Suarez, a Spanish Jesuit and Professor at Coimbra, who published in 1612 -his "Tractatus de legibus et de legislatore," in which (II. c. 19, n. 8) -for the first time the attempt is made to found a law between the States -on the fact that they form a community of States; (7) Gentilis -(1552-1608), an Italian jurist, who became Professor of Civil Law in -Oxford. He published in 1585 his work, "De legationibus," in 1588 and -1589 his "Commentationes de jure belli," and in 1598 an enlarged work on -the same matter under the title "De jure belli libri tres."[72] His -"Advocatio Hispanica" was edited, after his death, in 1613 by his -brother Scipio. Gentilis's book "De jure belli" supplies, as Professor -Holland shows, the model and the framework of the first and third book -of Grotius's "De Jure Belli ac Pacis." "The first step"--Holland rightly -says--"towards making International Law what it is was taken, not by -Grotius, but by Gentilis." - -[Footnote 71: See details in Holland, Studies, pp. 51-52.] - -[Footnote 72: Re-edited in 1877 by Professor Holland. On Gentilis, see -Holland, Studies, pp. 1-391; Westlake, Chapters, pp. 33-36; Walker, -History, I. pp. 249-277; Thamm, "Albericus Gentilis und seine Bedeutung -fuer das Voelkerrecht" (1896); Phillipson in _The Journal of the Society -of Comparative Legislation_, New Series, XII. (1912), pp. 52-80; Balch -in A.J. V. (1911), pp. 665-679.] - -[Sidenote: Grotius.] - -[p] 53. Although Grotius owes much to Gentilis, he is nevertheless the -greater of the two and bears by right the title of "Father of the Law of -Nations." Hugo Grotius was born at Delft in Holland in 1583. He was from -his earliest childhood known as a "wondrous child" on account of his -marvellous intellectual gifts and talents. He began to study law at -Leyden when only eleven years old, and at the age of fifteen he took the -degree of Doctor of Laws at Orleans in France. He acquired a reputation, -not only as a jurist, but also as a Latin poet and a philologist. He -first practised as a lawyer, but afterwards took to politics and became -involved in political and religious quarrels which led to his arrest in -1618 and condemnation to prison for life. In 1621, however, he succeeded -in escaping from prison and went to live for ten years in France. In -1634 he entered into the service of Sweden and became Swedish Minister -in Paris. He died in 1645 at Rostock in Germany on his way home from -Sweden, whither he had gone to tender his resignation. - -Even before he had the intention of writing a book on the Law of Nations -Grotius took an interest in matters international. For in 1609, when -only twenty-four years old, he published--anonymously at first--a short -treatise under the title "Mare liberum," in which he contended that the -open sea could not be the property of any State, whereas the contrary -opinion was generally prevalent.[73] But it was not until fourteen -years later that Grotius began, during his exile in France, to write -his "De Jure Belli ac Pacis libri III.," which was published, after a -further two years, in 1625, and of which it has rightly been maintained -that no other book, with the single exception of the Bible, has ever -exercised a similar influence upon human minds and matters. The whole -development of the modern Law of Nations itself, as well as that of the -science of the Law of Nations, takes root from this for ever famous -book. Grotius's intention was originally to write a treatise on the Law -of War, since the cruelties and lawlessness of warfare of his time -incited him to the work. But thorough investigation into the matter led -him further, and thus he produced a system of the Law of Nature and -Nations. In the introduction he speaks of many of the authors before -him, and he especially quotes Ayala and Gentilis. Yet, although he -recognises their influence upon his work, he is nevertheless aware that -his system is fundamentally different from those of his forerunners. -There was in truth nothing original in Grotius's start from the Law of -Nature for the purpose of deducing therefrom rules of a Law of Nations. -Other writers before his time, and in especial Gentilis, had founded -their works upon it. But nobody before him had done it in such a -masterly way and with such a felicitous hand. And it is on this account -that Grotius bears not only, as already mentioned, the title of "Father -of the Law of Nations," but also that of "Father of the Law of Nature." - -[Footnote 73: See details with regard to the controversy concerning the -freedom of the open sea below, [p][p] 248-250. Grotius's treatise "Mare -liberum" is--as we know now--the twelfth chapter of the work "De jure -praedae," written in 1604 but never published by Grotius; it was not -printed till 1868. See below, [p] 250.] - -Grotius, as a child of his time, could not help starting from the Law of -Nature, since his intention was to find such rules of a Law of Nations -as were eternal, unchangeable, and independent of the special consent of -the single States. Long before Grotius, the opinion was generally -prevalent that above the positive law, which had grown up by custom or -by legislation of a State, there was in existence another law which had -its roots in human reason and which could therefore be discovered -without any knowledge of positive law. This law of reason was called Law -of Nature or Natural Law. But the system of the Law of Nature which -Grotius built up and from which he started when he commenced to build up -the Law of Nations, became the most important and gained the greatest -influence, so that Grotius appeared to posterity as the Father of the -Law of Nature as well as that of the Law of Nations. - -Whatever we may nowadays think of this Law of Nature, the fact remains -unshaken that for more than two hundred years after Grotius jurists, -philosophers, and theologians firmly believed in it. And there is no -doubt that, but for the systems of the Law of Nature and the doctrines -of its prophets, the modern Constitutional Law and the modern Law of -Nations would not be what they actually are. The Law of Nature supplied -the crutches with whose help history has taught mankind to walk out of -the institutions of the Middle Ages into those of modern times. The -modern Law of Nations in especial owes its very existence[74] to the -theory of the Law of Nature. Grotius did not deny that there existed in -his time already a good many customary rules for the international -conduct of the States, but he expressly kept them apart from those rules -which he considered the outcome of the Law of Nature. He distinguishes, -therefore, between the _natural_ Law of Nations on the one hand, and, on -the other hand, the _customary_ Law of Nations, which he calls the -_voluntary_ Law of Nations. The bulk of Grotius's interest is -concentrated upon the natural Law of Nations, since he considered the -voluntary of minor importance. But nevertheless he does not quite -neglect the voluntary Law of Nations. Although he mainly and chiefly -lays down the rules of the natural Law of Nations, he always mentions -also voluntary rules concerning the different matters. - -[Footnote 74: See Pollock in _The Journal of the Society of Comparative -Legislation_, New Series, III. (1901), p. 206.] - -Grotius's influence was soon enormous and reached over the whole of -Europe. His book[75] went through more than forty-five editions, and -many translations have been published. - -[Footnote 75: See Rivier in Holtzendorff, I. p. 412. The last English -translation is that of 1854 by William Whewell.] - -[Sidenote: Zouche.] - -[p] 54. But the modern Law of Nations has another, though minor, founder -besides Grotius, and this is an Englishman, Richard Zouche[76] -(1590-1660), Professor of Civil Law at Oxford and a Judge of the -Admiralty Court. A prolific writer, the book through which he acquired -the title of "Second founder of the Law of Nations," appeared in 1650 -and bears the title: "Juris et judicii fecialis, sive juris inter -gentes, et quaestionum de eodem explicatio, qua, quae ad pacem et bellum -inter diversos principes aut populos spectant, ex praecipuis historico -jure peritis exhibentur." This little book has rightly been called the -first manual of the _positive_ Law of Nations. The standpoint of Zouche -is totally different from that of Grotius in so far as, according to -him, the customary Law of Nations is the most important part of that -law, although, as a child of his time, he does not at all deny the -existence of a natural Law of Nations. It must be specially mentioned -that Zouche is the first who used the term _jus inter gentes_ for that -new branch of law. Grotius knew very well and says that the Law of -Nations is a law _between_ the States, but he called it _jus gentium_, -and it is due to his influence that until Bentham nobody called the Law -of Nations _Inter_national Law. - -[Footnote 76: See Phillipson in _The Journal of the Society of -Comparative Legislation_, New Series, IX. (1908), pp. 281-304.] - -The distinction between the natural Law of Nations, chiefly treated by -Grotius, and the customary or voluntary Law of Nations, chiefly treated -by Zouche,[77] gave rise in the seventeenth and eighteenth centuries to -three different schools[78] of writers on the Law of Nations--namely, -the "Naturalists," the "Positivists," and the "Grotians." - -[Footnote 77: It should be mentioned that already before Zouche, another -Englishman, John Selden, in his "De jure naturali et gentium secundum -disciplinam ebraeorum" (1640), recognised the importance of the positive -Law of Nations. The successor of Zouche as a Judge of the Admiralty -Court, Sir Leoline Jenkins (1625-1684), ought also to be mentioned. His -opinions concerning questions of maritime law, and in especial prize -law, were of the greatest importance for the development of maritime -international law. See Wynne, "Life of Sir Leoline Jenkins," 2 vols. -(1740).] - -[Footnote 78: These three schools of writers must not be confounded with -the division of the present international jurists into the diplomatic -and legal schools; see above, [p] 51, No. 5.] - -[Sidenote: The Naturalists.] - -[p] 55. "Naturalists," or "Deniers of the Law of Nations," is the -appellation of those writers who deny that there is any positive Law of -Nations whatever as the outcome of custom or treaties, and who maintain -that all Law of Nations is only a part of the Law of Nature. The leader -of the Naturalists is Samuel Pufendorf (1632-1694), who occupied the -first chair which was founded for the Law of Nature and Nations at a -University--namely, that at Heidelberg. Among the many books written by -Pufendorf, three are of importance for the science of International -Law:--(1) "Elementa jurisprudentiae universalis," 1666; (2) "De jure -naturae et gentium," 1672; (3) "De officio hominis et civis juxta legem -naturalem," 1673. Starting from the assertion of Hobbes, "De Cive," XIV. -4, that Natural Law is to be divided into Natural Law of individuals and -of States, and that the latter is the Law of Nations, Pufendorf[79] adds -that outside this Natural Law of Nations no voluntary or positive Law of -Nations exists which has the force of real law (_quod quidem legis -proprie dictae vim habeat, quae gentes tamquam a superiore profecta -stringat_). - -[Footnote 79: De jure naturae et gentium, II. c. 3, [p] 22.] - -The most celebrated follower of Pufendorf is the German philosopher, -Christian Thomasius (1655-1728), who published in 1688 his -"Institutiones jurisprudentiae divinae," and in 1705 his "Fundamenta -juris naturae et gentium." Of English Naturalists may be mentioned -Francis Hutcheson ("System of Moral Philosophy," 1755) and Thomas -Rutherford ("Institutes of Natural Law; being the Substance of a Course -of Lectures on Grotius read in St. John's College, Cambridge," 2 vols. -1754-1756). Jean Barbeyrac (1674-1744), the learned French translator -and commentator of the works of Grotius, Pufendorf, and others, and, -further, Jean Jacques Burlamaqui (1694-1748), a native of Geneva, who -wrote the "Principes du droit de la nature et des gens," ought likewise -to be mentioned. - -[Sidenote: The Positivists.] - -[p] 56. The "Positivists" are the antipodes of the Naturalists. They -include all those writers who, in contradistinction to Hobbes and -Pufendorf, not only defend the existence of a positive Law of Nations as -the outcome of custom or international treaties, but consider it more -important than the natural Law of Nations, the very existence of which -some of the Positivists deny, thus going beyond Zouche. The positive -writers had not much influence in the seventeenth century, during which -the Naturalists and the Grotians carried the day, but their time came in -the eighteenth century. - -Of seventeenth-century writers, the Germans Rachel and Textor must be -mentioned. Rachel published in 1676 his two dissertations, "De jure -naturae et gentium," in which he defines the Law of Nations as the law -to which a plurality of free States are subjected, and which comes into -existence through tacit or express consent of these States (_Jus plurium -liberalium gentium pacto sive placito expressim aut tacite initum, quo -utilitatis gratia sibi in vicem obligantur_). Textor published in 1680 -his "Synopsis juris gentium." - -In the eighteenth century the leading Positivists, Bynkershoek, Moser, -and Martens, gained an enormous influence. - -Cornelius van Bynkershoek[80] (1673-1743), a celebrated Dutch jurist, -never wrote a treatise on the Law of Nations, but gained fame through -three books dealing with different parts of this Law. He published in -1702 "De dominio maris," in 1721 "De foro legatorum," in 1737 -"Quaestionum juris publici libri II." According to Bynkershoek the basis -of the Law of Nations is the common consent of the nations which finds -its expression either in international custom or in international -treaties. - -[Footnote 80: See Phillipson in _The Journal of the Society of -Comparative Legislation_, New Series, IX. (1908), pp. 27-49.] - -Johann Jakob Moser (1701-1785), a German Professor of Law, published -many books concerning the Law of Nations, of which three must be -mentioned: (1) "Grundsaetze des jetzt ueblichen Voelkerrechts in -Friedenszeiten," 1750; (2) "Grundsaetze des jetzt ueblichen Voelkerrechts -in Kriegszeiten," 1752; (3) "Versuch des neuesten europaeischen -Voelkerrechts in Friedens- und Kriegszeiten," 1777-1780. Moser's books -are magazines of an enormous number of facts which are of the greatest -value for the positive Law of Nations. Moser never fights against the -Naturalists, but he is totally indifferent towards the natural Law of -Nations, since to him the Law of Nations is positive law only and based -on international custom and treaties. - -Georg Friedrich von Martens (1756-1821), Professor of Law in the -University of Goettingen, also published many books concerning the Law of -Nations. The most important is his "Precis du droit des gens moderne de -l'Europe," published in 1789, of which William Cobbett published in -1795 at Philadelphia an English translation, and of which as late as -1864 appeared a new edition at Paris with notes by Charles Verge. -Martens began the celebrated collection of treaties which goes under the -title "Martens, Recueil des Traites," and is continued to our days.[81] -The influence of Martens was great, and even at the present time is -considerable. He is not an exclusive Positivist, since he does not deny -the existence of natural Law of Nations, and since he sometimes refers -to the latter in case he finds a gap in the positive Law of Nations. But -his interest is in the positive Law of Nations, which he builds up -historically on international custom and treaties. - -[Footnote 81: Georg Friedrich von Martens is not to be confounded with -his nephew Charles de Martens, the author of the "Causes celebres de -droit des gens" and of the "Guide diplomatique."] - -[Sidenote: The Grotians.] - -[p] 57. The "Grotians" stand midway between the Naturalists and the -Positivists. They keep up the distinction of Grotius between the natural -and the voluntary Law of Nations, but, in contradistinction to Grotius, -they consider the positive or voluntary of equal importance to the -natural, and they devote, therefore, their interest to both alike. -Grotius's influence was so enormous that the majority of the authors of -the seventeenth and eighteenth centuries were Grotians, but only two of -them have acquired a European reputation--namely, Wolff and Vattel. - -Christian Wolff (1679-1754), a German philosopher who was first -Professor of Mathematics and Philosophy in the Universities of Halle and -Marburg and afterwards returned to Halle as Professor of the Law of -Nature and Nations, was seventy years of age when, in 1749, he published -his "Jus gentium methodo scientifica pertractatum." In 1750 followed his -"Institutiones juris naturae et gentium." Wolff's conception of the Law -of Nations is influenced by his conception of the _civitas gentium -maxima_. The fact that there is a Family of Nations in existence is -strained by Wolff into the doctrine that the totality of the States -forms a world-State above the component member States, the so-called -_civitas gentium maxima_. He distinguishes four different kinds of Law -of Nations--namely, the natural, the voluntary, the customary, and that -which is expressly created by treaties. The latter two kinds are -alterable, and have force only between those single States between which -custom and treaties have created them. But the natural and the voluntary -Law of Nations are both eternal, unchangeable, and universally binding -upon all the States. In contradistinction to Grotius, who calls the -customary Law of Nations "voluntary," Wolff names "voluntary" those -rules of the Law of Nations which are, according to his opinion, tacitly -imposed by the _civitas gentium maxima_, the world-State, upon the -member States. - -Emerich de Vattel[82] (1714-1767), a Swiss from Neuchatel, who entered -into the service of Saxony and became her Minister at Berne, did not in -the main intend any original work, but undertook the task of introducing -Wolff's teachings concerning the Law of Nations into the courts of -Europe and to the diplomatists. He published in 1758 his book, "Le droit -des gens, ou principes de la loi naturelle appliques a la conduite et -aux affaires des Nations et des Souverains." But it must be specially -mentioned that Vattel expressly rejects Wolff's conception of the -_civitas gentium maxima_ in the preface to his book. Numerous editions -of Vattel's book have appeared, and as late as 1863 Pradier-Fodere -re-edited it at Paris. An English translation by Chitty appeared in 1834 -and went through several editions. His influence was very great, and in -diplomatic circles his book still enjoys an unshaken authority. - -[Footnote 82: See Montmorency in _The Journal of the Society of -Comparative Legislation_, New Series, X. (1909), pp. 17-39.] - -[Sidenote: Treatises of the Nineteenth and Twentieth Centuries.] - -[p] 58. Some details concerning the three schools of the Naturalists, -Positivists, and Grotians were necessary, because these schools are -still in existence. I do not, however, intend to give a list of writers -on special subjects, and the following list of treatises comprises the -more important ones only. - -(1) BRITISH TREATISES - - _William Oke Manning_: Commentaries on the Law of Nations, 1839; - new ed. by Sheldon Amos, 1875. - - _Archer Polson_: Principles of the Law of Nations, 1848; 2nd ed. - 1853. - - _Richard Wildman_: Institutes of International Law, 2 vols. - 1849-1850. - - _Sir Robert Phillimore_: Commentaries upon International Law, 4 - vols. 1854-1861; 3rd ed. 1879-1888. - - _Sir Travers Twiss_: The Law of Nations, etc., 2 vols. 1861-1863; - 2nd ed., vol. I. (Peace) 1884, vol. II. (War) 1875; French - translation, 1887-1889. - - _Sheldon Amos_: Lectures on International Law, 1874. - - _Sir Edward Shepherd Creasy_: First Platform of International Law, - 1876. - - _William Edward Hall_: Treatise on International Law, 1880; 6th - ed. 1909 (by Atlay). - - _Sir Henry Sumner Maine_: International Law, 1883; 2nd ed. 1894 - (Whewell Lectures, not a treatise). - - _James Lorimer_: The Institutes of International Law, 2 vols. - 1883-1884; French translation by Nys, 1885. - - _Leone Levi_: International Law, 1888. - - _T. J. Lawrence_: The Principles of International Law, 1895; 4th - ed. 1910. - - _Thomas Alfred Walker_: A Manual of Public International Law, - 1895. - - _Sir Sherston Baker_: First Steps in International Law, 1899. - - _F. E. Smith_: International Law, 1900; 4th ed. 1911 (by Wylie). - - _John Westlake_: International Law, vol. I. (Peace) 1904, vol. II. - (War) 1907; 2nd ed. vol. I. 1910. - -(2) NORTH AMERICAN TREATISES - - _James Kent_: Commentary on International Law, 1826; English - edition by Abdy, Cambridge, 1888. - - _Henry Wheaton_: Elements of International Law, 1836; 8th American - ed. by Dana, 1866; 3rd English ed. by Boyd, 1889; 4th English ed. - by Atlay, 1904. - - _Theodore D. Woolsey_: Introduction to the Study of International - Law, 1860; 6th ed. by Th. S. Woolsey, 1891. - - _Henry W. Halleck_: International Law, 2 vols. 1861; 4th English - ed. by Sir Sherston Baker, 1907. - - _Francis Wharton_: A Digest of the International Law of the United - States, 3 vols. 1886. - - _George B. Davis_: The Elements of International Law, 1887; 3rd - ed. 1908. - - _Hannis Taylor_: A Treatise on International Public Law, 1901. - - _George Grafton Wilson and George Fox Tucker_: International Law, - 1901; 5th ed. 1910. - - _Edwin Maxey_: International Law, with illustrative cases, 1906. - - _John Basset Moore_: A Digest of International Law, 8 vols. 1906. - - _George Grafton Wilson_: Handbook of International Law, 1910. - -(3) FRENCH TREATISES - - _Funck-Brentano et Albert Sorel_: Precis du Droit des Gens, 1877; - 2nd ed. 1894. - - _P. Pradier-Fodere_: Traite de Droit International Public, 8 vols. - 1885-1906. - - _Henry Bonfils_: Manuel de Droit International Public, 1894; 5th - ed. by Fauchille, 1908. - - _Georges Bry_: Precis elementaire de Droit International Public; - 5th ed. 1906. - - _Frantz Despagnet_: Cours de Droit International Public, 1894; 4th - ed. by De Boeck, 1910. - - _Robert Piedelievre_: Precis de Droit International Public, 2 - vols. 1894-1895. - - _A. Merignhac_: Traite de Droit Public International, vol. I. - 1905; vol. II. 1907. - -(4) GERMAN TREATISES - - _Theodor Schmalz_: Europaeisches Voelkerrecht, 1816. - - _Johann Ludwig Klueber_: Droit des Gens moderne, 1819; German ed. - under the title of Europaeisches Voelkerrecht in 1821; last German - ed. by Morstadt in 1851, and last French ed. by Ott in 1874. - - _Karl Heinrich Ludwig Poelitz_: Practisches (europaeisches) - Voelkerrecht, 1828. - - _Friedrich Saalfeld_: Handbuch des positiven Voelkerrechts, 1833. - - _August Wilhelm Heffter_: Das europaeische Voelkerrecht der - Gegenwart, 1844; 8th ed. by Geffcken, 1888; French translations by - Bergson in 1851 and Geffcken in 1883. - - _Heinrich Bernhard Oppenheim_: System des Voelkerrechts, 1845; 2nd - ed. 1866. - - _Johann Caspar Bluntschli_: Das moderne Voelkerrecht der - civilisirten Staaten als Rechtsbuch dargestellt, 1868; 3rd ed. - 1878; French translation by Lardy, 5th ed. 1895. - - _Adolf Hartmann_: Institutionen des praktischen Voelkerrechts in - Friedenszeiten, 1874; 2nd ed. 1878. - - _Franz von Holtzendorff_: Handbuch des Voelkerrechts, 4 vols. - 1885-1889. Holtzendorff is the editor and a contributor, but there - are many other contributors. - - _August von Bulmerincq_: Das Voelkerrecht, 1887. - - _Karl Gareis_: Institutionen des Voelkerrechts, 1888; 2nd. ed. - 1901. - - _E. Ullmann_: Voelkerrecht, 1898; 2nd ed. 1908. - - _Franz von Liszt_: Das Voelkerrecht, 1898; 6th ed. 1910. - -(5) ITALIAN TREATISES - - _Luigi Casanova_: Lezioni di diritto internazionale, published - after the death of the author by Cabella, 1853; 3rd. ed. by Brusa, - 1876. - - _Pasquale Fiore_: Trattato di diritto internazionale publico, - 1865; 4th ed. in 3 vols. 1904; French translation of the 2nd ed. - by Antoine, 1885. - - _Giuseppe Carnazza-Amari_: Trattato di diritto internazionale di - pace, 2 vols. 1867-1875; French translation by Montanari-Pevest, - 1881. - - _Antonio del Bon_: Institutioni del diritto publico - internazionale, 1868. - - _Giuseppe Sandona_: Trattato di diritto internazionale moderno, 2 - vols. 1870. - - _Gian Battista Pertille_: Elementi di diritto internazionale, 2 - vols. 1877. - - _Augusto Pierantoni_: Trattato di diritto internazionale, vol. I. - 1881. (No further volume has appeared.) - - _Giovanni Lomonaco_: Trattato di diritto internazionale publico, - 1905. - - _Giulio Diena_: Principi di diritto internazionale, Parte Prima, - Diritto internaziole publico, 1908. - -(6) SPANISH AND SPANISH-AMERICAN TREATISES - - _Andres Bello_: Principios de derecho de gentes (internacional), - 1832; last ed. in 2 vols. by Silva, 1883. - - _Jose Maria de Pando_: Elementos del derecho internacional, - published after the death of the author, 1843-1844. - - _Antonio Riquelme_: Elementos de derecho publico internacional, - etc.; 2 vols. 1849. - - _Carlos Calvo_: Le Droit International, etc. (first edition in - Spanish, following editions in French), 1868; 5th ed. in 6 vols. - 1896. - - _Amancio Alcorta_: Curso de derecho internacional publico, vol. I. - 1886; French translation by Lehr, 1887. - - _Marquis de Olivart_: Trattato y notas de derecho internacional - publico, 4 vols. 1887; 4th ed. 1903-1904. - - _Luis Gesteso y Acosta_: Curso de derecho internacional publico, - 1894. - - _Miguel Cruchaga_: Nociones de derecho internacional, 1899; 2nd - ed. 1902. - - _Manuel Torres Campos_: Elementos de derecho internacional - publico; 2nd. ed. 1904. - -(7) TREATISES OF AUTHORS OF OTHER NATIONALITIES - - _Frederick Kristian Bornemann_: Forelaesninger over den positive - Folkeret, 1866. - - _Friedrich von Martens_: Voelkerrecht, 2 vols. 1883; a German - translation by Berghohm of the Russian original. A French - translation by Leo in 3 vols. appeared in the same year. The - Russian original went through its 5th ed. in 1905. - - _Jan Helenus Ferguson_: Manual of International Law, etc., 2 vols. - 1884. The author is Dutch, but the work is written in English. - - _Alphonse Rivier_: Lehrbuch des Voelkerrechts, 1894; 2nd ed. 1899, - and the larger work in two vols. under the title: Principes du - Droit des Gens, 1896. The author of these two excellent books was - a Swiss who taught International Law at the University of - Brussels. - - _H. Matzen_: Forelaesninger over den positive Folkeret, 1900. - - _Ernest Nys_: Le droit international, 3 vols. 1904-1906. The - author of this exhaustive treatise is a Belgian jurist whose - researches in the history of the science of the Law of Nations - have gained him far-reaching reputation.[83] - - [Footnote 83: The first volume of Nys contains in its pp. 251-328 - an exhaustive enumeration of all the more important works on - International Law, treatises as well as monographs, and I have - much pleasure in referring my readers to this learned work.] - - _J. De Louter_: Het Stellig Volkenrecht, 2 vols. 1910. - -[Sidenote: The Science of the Law of Nations in the Nineteenth and -Twentieth Centuries as represented by treatises.] - -[p] 59. The Science of the Law of Nations, as left by the French -Revolution, developed progressively during the nineteenth century under -the influence of three factors. The first factor is the endeavour, on -the whole sincere, of the Powers since the Congress of Vienna to submit -to the rules of the Law of Nations. The second factor is the many -law-making treaties which arose during this century. And the last, but -not indeed the least factor, is the downfall of the theory of the Law of -Nature, which after many hundreds of years has at last been shaken off -during the second half of this century. - -When the nineteenth century opens, the three schools of the Naturalists, -the Positivists, and the Grotians are still in the field, but -Positivism[84] gains slowly and gradually the upper hand, until at the -end it may be said to be victorious, without, however, being omnipotent. -The most important writer[85] up to 1836 is Klueber, who may be called a -Positivist in the same sense as Martens, for he also applies the natural -Law of Nations to fill up the gaps of the positive. Wheaton appears in -1836 with his "Elements," and, although an American, at once attracts -the attention of the whole of Europe. He may be called a Grotian. And -the same may be maintained of Manning, whose treatise appeared in 1839, -and is the first that attempts a survey of British practice regarding -sea warfare based on the judgments of Sir William Scott (Lord Stowell). -Heffter, whose book appeared in 1844, is certainly a Positivist, -although he does not absolutely deny the Law of Nature. In exact -application of the juristic method, Heffter's book excels all former -ones, and all the following authors are in a sense standing on his -shoulders. In Phillimore, Great Britain sends in 1854 a powerful author -into the arena, who may, on the whole, be called a Positivist of the -same kind as Martens and Klueber. Generations to come will consult -Phillimore's volumes on account of the vast amount of material they -contain and the sound judgment they exhibit. And the same is valid with -regard to Sir Travers Twiss, whose first volume appeared in 1861. -Halleck's work, which appeared in the same year, is of special -importance as regards war, because the author, who was a General in the -service of the United States, gave to this part his special attention. -The next prominent author, the Italian Fiore, who published his system -in 1865 and may be called a Grotian, is certainly the most prominent -Italian author, and the new edition of his work will for a long time to -come be consulted. Bluntschli, the celebrated Swiss-German author, -published his book in 1867; it must, in spite of the world-wide fame of -its author, be consulted with caution, because it contains many rules -which are not yet recognised rules of the Law of Nations. Calvo's work, -which first appeared in 1868, contains an invaluable store of facts and -opinions, but its juristic basis is not very exact. - -[Footnote 84: Austin and his followers who hold that the rules of -International Law are rules of "positive morality" must be considered -Positivists, although they do not agree to International Law being real -law.] - -[Footnote 85: I do not intend to discuss the merits of writers on -special subjects, and I mention only the authors of the most important -treatises which are written in, or translated into, English, French, or -German.] - -From the seventies of the nineteenth century the influence of the -downfall of the theory of the Law of Nature becomes visible in the -treatises on the Law of Nations, and therefore real positivistic -treatises make their appearance. For the Positivism of Zouche, -Bynkershoek, Martens, Klueber, Heffter, Phillimore, and Twiss was no real -Positivism, since these authors recognised a natural Law of Nations, -although they did not make much use of it. Real Positivism must entirely -avoid a natural Law of Nations. We know nowadays that a Law of Nature -does not exist. Just as the so-called Natural Philosophy had to give way -to real natural science, so the Law of Nature had to give way to -jurisprudence, or the philosophy of the positive law. Only a positive -Law of Nations can be a branch of the science of law. - -The first real positive treatise known to me is Hartmann's -"Institutionen des praktischen Voelkerrechts in Friedenszeiten," which -appeared in 1874, but is hardly known outside Germany. In 1880 Hall's -treatise appeared, and at once won the attention of the whole world; it -is one of the best books on the Law of Nations that have ever been -written. Lorimer, whose two volumes appeared in 1883 and 1884, is a -Naturalist pure and simple, but his work is nevertheless of value. The -Russian Martens, whose two volumes appeared in German and French -translations in 1883 and at once put their author in the forefront of -the authorities, certainly intends to be a real Positivist, but traces -of Natural Law are nevertheless now and then to be found in his book. A -work of a special kind is that of Holtzendorff, the first volume of -which appeared in 1885. Holtzendorff himself is the editor and at the -same time a contributor to the work, but there are many other -contributors, each of them dealing exhaustively with a different part of -the Law of Nations. The copious work of Pradier-Fodere, which also began -to appear in 1885, is far from being positive, although it has its -merits. Wharton's three volumes, which appeared in 1886, are not a -treatise, but contain the international practice of the United States. -Bulmerincq's book, which appeared in 1887, gives a good survey of -International Law from the positive point of view. In 1894 three French -jurists, Bonfils, Despagnet, and Piedelievre, step into the arena; their -treatises are comprehensive and valuable, but not absolutely positive. -On the other hand, the English authors Lawrence and Walker, whose -excellent manuals appeared in 1895, are real Positivists. Of the -greatest value are the two volumes of Rivier which appeared in 1896; -they are full of sound judgment, and will influence the theory and -practice of International Law for a long time to come. Liszt's short -manual, which in its first edition made its appearance in 1898, is -positive throughout, well written, and suggestive. Ullmann's work, which -likewise appeared in its first edition in 1898, is an excellent and -comprehensive treatise which thoroughly discusses all the more important -problems and points from the positive standpoint. Hannis Taylor's -comprehensive treatise, which appeared in 1901, is likewise thoroughly -positive, and so are the serviceable manuals of Wilson and Maxey. Of -great value are the two volumes of Westlake which appeared in 1904 and -1907; they represent rather a collection of thorough monographs than a -treatise, and will have great and lasting influence. A work of -particular importance is the "Digest" of John Basset Moore, which -appeared in 1906, comprises eight volumes, and contains the -international practice of the United States in a much more exhaustive -form than the work of Wharton; it is an invaluable work which must be -consulted on every subject. The same is valid with regard to the three -volumes of Nys, who may be characterised as a Grotian, and whose work is -full of information on the historical and literary side of the -problems.[86] - -[Footnote 86: On the task and method of the science of International Law -from the positive standpoint, see Oppenheim in A.J. II. (1908), pp. -313-356.] - -[p] 60. COLLECTIONS OF TREATIES - -(1) GENERAL COLLECTIONS - - _Leibnitz_: Codex iuris gentium diplomaticus (1693); Mantissa - codicis iuris gentium diplomatici (1700). - - _Bernard_: Recueil des traites, etc. 4 vols. (1700). - - _Rymer_: Foedera etc. inter reges angliae et alios quosvis - imperatores ... ab anno 1101 ad nostra usque tempora habita et - tradata, 20 vols. 1704-1718 (Contains documents from 1101-1654). - - _Dumont_: Corps universel diplomatique, etc., 8 vols. (1726-1731). - - _Rousset_: Supplement au corps universel diplomatique de Dumont, 5 - vols. (1739). - - _Schmauss_: Corpus iuris gentium academicum (1730). - - _Wenck_: Codex iuris gentium recentissimi, 3 vols. (1781, 1786, - 1795). - - _Martens_: Recueil de Traites d'Alliance, etc., 8 vols. - (1791-1808); Nouveau Recueil de Traites d'Alliance, etc., 16 vols. - (1817-1842); Nouveaux Supplements au Recueil de Traites et - d'autres Actes remarquables, etc., 3 vols. (1839-1842); Nouveau - Recueil General de Traites, Conventions et autres Actes - remarquables, etc., 20 vols. (1843-1875); Nouveau Recueil General - de Traites et autres Actes relatifs aux Rapports de droit - international, Deuxieme Serie, 35 vols. (1876-1908); Nouveau - Recueil General de Traites et autres Actes relatifs aux Rapports - de droit international, Troisieme Serie, vol. I. 1908, continued - up to date. Present editor, Heinrich Triepel, professor in the - University of Kiel in Germany. - - _Ghillany_: Diplomatisches Handbuch, 3 vols. (1855-1868). - - _Martens et Cussy_: Recueil manuel, etc., 7 vols. (1846-1857); - continuation by Geffcken, 3 vols. (1857-1885). - - _British and Foreign State Papers_: Vol. I. 1814, continued up to - date, one volume yearly. - - _Das Staatsarchiv_: Sammlung der officiellen Actenstuecke zur - Geschichte der Gegenwart, vol. I. 1861, continued up to date, one - volume yearly. - - _Archives diplomatiques_: Recueil mensuel de diplomatie, - d'histoire, et de droit international, first and second series, - 1861-1900, third series from 1901 continued up to date (4 vols. - yearly). - - _Recueil International des Traites du XXe Siecle_: Edited by - Descamps and Renault since 1901. - - _Strupp_: Urkunden zur Geschichte des Voelkerrechts, 2 vols. - (1911). - -(2) COLLECTIONS OF ENGLISH TREATIES ONLY - - _Jenkinson_: Collection of all the Treaties, etc., between Great - Britain and other Powers from 1648 to 1783, 3 vols. (1785). - - _Chalmers_: A Collection of Maritime Treaties of Great Britain and - other Powers, 2 vols. (1790). - - _Hertslet_: Collection of Treaties and Conventions between Great - Britain and other Powers (vol. I. 1820, continued to date). - - _Treaty Series_: Vol. I. 1892, and a volume every year. - -[p] 61. BIBLIOGRAPHIES - - _Ompteda_: Litteratur des gesammten Voelkerrechts, 2 vols. (1785). - - _Kamptz_: Neue Litteratur des Voelkerrechts seit 1784 (1817). - - _Klueber_: Droit des gens moderne de l'Europe (Appendix) (1819). - - _Miruss_: Das Europaeische Gesandschaftsrecht, vol. II. (1847). - - _Mohl_: Geschichte und Litteratur des Staatswissenschaften, vol. - I. pp. 337-475 (1855). - - _Woolsey_: Introduction to the Study of International Law (6th ed. - 1891), Appendix I. - - _Rivier_: pp. 393-523 of vol. I. of Holtzendorff's Handbuch des - Voelkerrechts (1885). - - _Stoerk_: Die Litteratur des internationalen Rechts von 1884-1894 - (1896). - - _Olivart_: Catalogue d'une bibliotheque de droit international - (1899). - - _Nys_: Le droit international, vol. I. (1904), pp. 213-328. - -[p] 62. PERIODICALS - - Revue de droit international et de legislation comparee. It has - appeared in Brussels since 1869, one volume yearly. Present - editor, Edouard Rolin. - - Revue generale de droit international public. It has appeared in - Paris since 1894, one volume yearly. Founder and present editor, - Paul Fauchille. - - Zeitschrift fuer internationales Recht. It has appeared in Leipzig - since 1891, one volume yearly. Present editor, Theodor Niemeyer. - - Annuaire de l'Institut de Droit International, vol. I. 1877. A - volume appears after each meeting of the Institute. - - Kokusaiho-Zasshi, the Japanese International Law Review. It has - appeared in Tokio since 1903. - - Revista de Derecho Internacional y politica exterior. It has - appeared in Madrid since 1905, one volume yearly. Editor, Marquis - de Olivart. - - Rivista di Diritto Internazionale. It has appeared in Rome since - 1906, one volume yearly. Editors, D. Anzilotti, A. Ricci-Busatti, - and L. A. Senigallia. - - Zeitschrift fuer Voelkerrecht und Bundesstaatsrecht. It has appeared - in Breslau since 1906, one volume yearly. Editors, Joseph Kohler, - L. Oppenheim, and F. Holldack. - - The American Journal of International Law. It has appeared in - Washington since 1907, one volume yearly. Editor, James Brown - Scott. - - Essays and Notes concerning International Law frequently appear - also in the Journal du droit international prive et de la - Jurisprudence comparee (Clunet), the Archiv fuer oeffentliches - Recht, The Law Quarterly Review, The Law Magazine and Review, The - Juridical Review, The Journal of the Society of Comparative - Legislation, The American Law Review, the Annalen des deutschen - Reiches, the Zeitschrift fuer das privat- und oeffentliche Recht der - Gegenwart (Gruenhut), the Revue de droit public et de la science - politique (Larnaude), the Annales des sciences politiques, the - Archivio giuridico, the Jahrbuch des oeffentlichen Rechts, and many - others. - - - - -PART I - -THE SUBJECTS OF THE LAW OF NATIONS - - - - -CHAPTER I - -INTERNATIONAL PERSONS - - -I - -SOVEREIGN STATES AS INTERNATIONAL PERSONS - - Vattel, I. [p][p] 1-12--Hall, [p] 1--Lawrence, [p] 42--Phillimore, - I. [p][p] 61-69--Twiss, I. [p][p] 1-11--Taylor, [p] 117--Walker, - [p] 1--Westlake, I. pp. 1-5, 20-21--Wheaton, [p][p] - 16-21--Ullmann, [p] 19--Heffter, [p] 15--Holtzendorff in - Holtzendorff, II. pp. 5-11--Bonfils, Nos. 160-164--Despagnet, Nos. - 69-74--Pradier-Fodere, I. Nos. 43-81--Nys, I. pp. 329-356--Rivier, - I. [p] 3--Calvo, I. [p][p] 39-41--Fiore, I. Nos. 305-309, and - Code, Nos. 51-77--Martens, I. [p][p] 53-54--Merignhac, I. pp. - 114-231, and II. pp. 5, 154-221--Moore, I. [p] 3. - -[Sidenote: Real and apparent International Persons.] - -[p] 63. The conception of International Persons is derived from the -conception of the Law of Nations. As this law is the body of rules which -the civilised States consider legally binding in their intercourse, -every State which belongs to the civilised States, and is, therefore, a -member of the Family of Nations, is an International Person. Sovereign -States exclusively are International Persons--_i.e._ subjects of -International Law. There are, however, as will be seen, full and -not-full Sovereign States. Full Sovereign States are perfect, not-full -Sovereign States are imperfect International Persons, for not-full -Sovereign States are for some parts only subjects of International Law. - -In contradistinction to Sovereign States which are real, there are also -apparent, but not real, International Persons--namely, Confederations of -States, insurgents recognised as a belligerent Power in a civil war, and -the Holy See. All these are not, as will be seen,[87] real subjects of -International Law, but in some points are treated as though they were -International Persons, without thereby becoming members of the Family of -Nations. - -[Footnote 87: See below, [p] 88 (Confederations of States), [p] 106 (Holy -See), and vol. II. [p][p] 59 and 76 (Insurgents).] - -It must be specially mentioned that the character of a subject of the -Law of Nations and of an International Person can be attributed neither -to monarchs, diplomatic envoys, private individuals, or churches, nor to -chartered companies, nations, or races after the loss of their State -(as, for instance, the Jews or the Poles), and organised wandering -tribes.[88] - -[Footnote 88: Most jurists agree with this opinion, but there are some -who disagree. Thus, for instance, Heffter ([p] 48) claims for monarchs the -character of subjects of the Law of Nations; Lawrence ([p] 42) claims that -character for corporations; and Westlake, Chapters, p. 2, and Fiore, -Code, Nos. 51, 61-64, claim it for individuals. The matter will be -discussed below in [p][p] 288, 290, 344, 384.] - -[Sidenote: Conception of the State.] - -[p] 64. A State proper--in contradistinction to so-called Colonial -States--is in existence when a people is settled in a country under its -own Sovereign Government. The conditions which must obtain for the -existence of a State are therefore four: - -There must, first, be a _people_. A people is an aggregate of -individuals of both sexes who live together as a community in spite of -the fact that they may belong to different races or creeds, or be of -different colour. - -There must, secondly, be a _country_ in which the people has settled -down. A wandering people, such as the Jews were whilst in the desert for -forty years before their conquest of the Holy Land, is not a State. But -it matters not whether the country is small or large; it may consist, as -with City States, of one town only. - -There must, thirdly, be a _Government_--that is, one or more persons who -are the representatives of the people and rule according to the law of -the land. An anarchistic community is not a State. - -There must, fourthly and lastly, be a _Sovereign_ Government. -Sovereignty is supreme authority, an authority which is independent of -any other earthly authority. Sovereignty in the strict and narrowest -sense of the term includes, therefore, independence all round, within -and without the borders of the country. - -[Sidenote: Not-full Sovereign States.] - -[p] 65. A State in its normal appearance does possess independence all -round and therefore full sovereignty. Yet there are States in existence -which certainly do not possess full sovereignty, and are therefore named -not-full Sovereign States. All States which are under the suzerainty or -under the protectorate of another State or are member States of a -so-called Federal State, belong to this group. All of them possess -supreme authority and independence with regard to a part of the tasks of -a State, whereas with regard to another part they are under the -authority of another State. Hence it is that the question is disputed -whether such not-full Sovereign States can be International Persons and -subjects of the Law of Nations at all.[89] - -[Footnote 89: The question will be discussed again below, [p][p] 89, 91, -93, with regard to each kind of not-full Sovereign States. The object of -discussion here is the question whether such States can be considered as -International Persons at all. Westlake, I. p. 21, answers it -affirmatively by stating: "It is not necessary for a State to be -independent in order to be a State of International Law."] - -That they cannot be full, perfect, and normal subjects of International -Law there is no doubt. But it is wrong to maintain that they can have no -international position whatever and can never be members of the Family -of Nations at all. If we look at the matter as it really stands, we -observe that they actually often enjoy in many points the rights and -fulfil in other points the duties of International Persons. They often -send and receive diplomatic envoys or at least consuls. They often -conclude commercial or other international treaties. Their monarchs -enjoy the privileges which according to the Law of Nations the Municipal -Laws of the different States must grant to the monarchs of foreign -States. No other explanation of these and similar facts can be given -except that these not-full Sovereign States are in some way or another -International Persons and subjects of International Law. Such imperfect -International Personality is, of course, an anomaly; but the very -existence of States without full sovereignty is an anomaly in itself. -And history teaches that States without full sovereignty have no -durability, since they either gain in time full sovereignty or disappear -totally as separate States and become mere provinces of other States. So -anomalous are these not-full Sovereign States that no hard-and-fast -general rule can be laid down with regard to their position within the -Family of Nations, since everything depends upon the special case. What -may be said in general concerning all the States without full -sovereignty is that their position within the Family of Nations, if any, -is always more or less overshadowed by other States. But their partial -character of International Persons comes clearly to light when they are -compared with so-called Colonial States, such as the Dominion of Canada -or the Commonwealth of Australia. Colonial States have no international -position[90] whatever; they are, from the standpoint of the Law of -Nations, nothing else than colonial portions of the mother-country, -although they enjoy perfect self-government, and may therefore in a -sense be called States. The deciding factor is that their Governor, who -has a veto, is appointed by the mother-country, and that the Parliament -of the mother-country could withdraw self-government from its Colonial -States and legislate directly for them. - -[Footnote 90: Therefore treaties concluded by Canada with foreign States -are not Canadian treaties, but treaties concluded by Great Britain for -Canada. Should Colonial States ever acquire the right to conclude -treaties directly with foreign States without the consent of the -mother-country, they would become internationally part-sovereign and -thereby obtain a certain international position.] - -[Sidenote: Divisibility of Sovereignty contested.] - -[p] 66. The distinction between States full Sovereign and not-full -Sovereign is based upon the opinion that sovereignty is divisible, so -that the powers connected with sovereignty need not necessarily be -united in one hand. But many jurists deny the divisibility of -sovereignty and maintain that a State is either sovereign or not. They -deny that sovereignty is a characteristic of every State and of the -membership of the Family of Nations. It is therefore necessary to face -the conception of sovereignty more closely. And it will be seen that -there exists perhaps no conception the meaning of which is more -controversial than that of sovereignty. It is an indisputable fact that -this conception, from the moment when it was introduced into political -science until the present day, has never had a meaning which was -universally agreed upon.[91] - -[Footnote 91: The literature upon sovereignty is extensive. The -following authors give a survey of the opinions of the different -writers:--Dock, "Der Souveraenitaets-begriff von Bodin bis zu Friedrich -dem Grossen," 1897; Merriam, "History of the Theory of Sovereignty since -Rousseau," 1900; Rehm, "Allgemeine Staatslehre," 1899, [p][p] 10-16. See -also Maine, "Early Institutions," pp. 342-400.] - -[Sidenote: Meaning of Sovereignty in the Sixteenth and Seventeenth -Centuries.] - -[p] 67. The term Sovereignty was introduced into political science by -Bodin in his celebrated work, "De la republique," which appeared in -1577. Before Bodin, at the end of the Middle Ages, the word -_souverain_[92] was used in France for an authority, political or other, -which had no other authority above itself. Thus the highest courts were -called _Cours Souverains_. Bodin, however, gave quite a new meaning to -the old conception. Being under the influence and in favour of the -policy of centralisation initiated by Louis XI. of France (1461-1483), -the founder of French absolutism, he defined sovereignty as "the -absolute and perpetual power within a State." Such power is the supreme -power within a State without any restriction whatever except the -Commandments of God and the Law of Nature. No constitution can limit -sovereignty, which is an attribute of the king in a monarchy and of the -people in a democracy. A Sovereign is above positive law. A contract -only is binding upon the Sovereign, because the Law of Nature commands -that a contract shall be binding.[93] - -[Footnote 92: _Souverain_ is derived either from the Latin _superanus_ -or from _suprema potestas_.] - -[Footnote 93: See Bodin, "De la republique," I. c. 8.] - -The conception of sovereignty thus introduced was at once accepted by -writers on politics of the sixteenth century, but the majority of these -writers taught that sovereignty could be restricted by a constitution -and by positive law. Thus at once a somewhat weaker conception of -sovereignty than that of Bodin made its appearance. On the other hand, -in the seventeenth century, Hobbes went even beyond Bodin, -maintaining[94] that a Sovereign was not bound by anything and had a -right over everything, even over religion. Whereas a good many -publicists followed Hobbes, others, especially Pufendorf, denied, in -contradistinction to Hobbes, that sovereignty includes omnipotence. -According to Pufendorf, sovereignty is the supreme power in a State, but -not absolute power, and sovereignty may well be constitutionally -restricted.[95] Yet in spite of all the differences in defining -sovereignty, all authors of the sixteenth and seventeenth centuries -agree that sovereignty is indivisible and contains the centralisation of -all power in the hands of the Sovereign, whether a monarch or the people -itself in a republic. Yet the way for another conception of sovereignty -is prepared by Locke, whose "Two Treatises on Government" appeared in -1689, and paved the way for the doctrine that the State itself is the -original Sovereign, and that all supreme powers of the Government are -derived from this sovereignty of the State. - -[Footnote 94: See Hobbes, "De cive," c. 6, [p][p] 12-15.] - -[Footnote 95: See Pufendorf, "De jure naturae et gentium," VII. c. 6, -[p][p] 1-13.] - -[Sidenote: Meaning of Sovereignty in the Eighteenth Century.] - -[p] 68. In the eighteenth century matters changed again. The fact that the -several hundred reigning princes of the member-States of the German -Empire had practically, although not theoretically, become more or less -independent since the Westphalian Peace enforced the necessity upon -publicists to recognise a distinction between an absolute, perfect, full -sovereignty, on the one hand, and, on the other, a relative, imperfect, -not-full or half-sovereignty. Absolute and full sovereignty was -attributed to those monarchs who enjoyed an unqualified independence -within and without their States. Relative and not-full sovereignty, or -half-sovereignty, was attributed to those monarchs who were, in various -points of internal or foreign affairs of State, more or less dependent -upon other monarchs. By this distinction the divisibility of sovereignty -was recognised. And when in 1787 the United States of America turned -from a Confederation of States into a Federal State, the division of -sovereignty between the Sovereign Federal State and the Sovereign -member-States appeared. But it cannot be maintained that divisibility of -sovereignty was universally recognised in the eighteenth century. It -suffices to mention Rousseau, whose "Contrat Social" appeared in 1762 -and defended again the indivisibility of sovereignty. Rousseau's -conception of sovereignty is essentially that of Hobbes, since it -contains absolute supreme power, but he differs from Hobbes in so far -as, according to Rousseau, sovereignty belongs to the people only and -exclusively, is inalienable, and therefore cannot be transferred from -the people to any organ of the State. - -[Sidenote: Meaning of Sovereignty in the Nineteenth Century.] - -[p] 69. During the nineteenth century three different factors of great -practical importance have exercised their influence on the history of -the conception of sovereignty. - -The first factor is that, with the exception of Russia, all civilised -Christian monarchies during this period turned into constitutional -monarchies. Thus identification of sovereignty with absolutism belongs -practically to the past, and the fact was during the nineteenth century -generally recognised that a sovereign monarch may well be restricted in -the exercise of his powers by a Constitution and positive law. - -The second factor is, that the example of a Federal State set by the -United States has been followed by Switzerland, Germany, and others. The -Constitution of Switzerland as well as that of Germany declares -decidedly that the member-States of the Federal State remain Sovereign -States, thus indirectly recognising the divisibility of sovereignty -between the member-States and the Federal State according to different -matters. - -The third and most important factor is, that the science of politics has -learned to distinguish between sovereignty of the State and sovereignty -of the organ which exercises the powers of the State. The majority of -publicists teach henceforth that neither the monarch, nor Parliament, -nor the people is originally Sovereign in a State, but the State itself. -Sovereignty, we say nowadays, is a natural attribute of every State as a -State. But a State, as a Juristic Person, wants organs to exercise its -powers. The organ or organs which exercise for the State powers -connected with sovereignty are said to be sovereign themselves, yet it -is obvious that this sovereignty of the organ is derived from the -sovereignty of the State. And it is likewise obvious that the -sovereignty of a State may be exercised by the combined action of -several organs, as, for instance, in Great Britain, King and Parliament -are the joint administrators of the sovereignty of the State. And it is, -thirdly, obvious that a State can, as regards certain matters, have its -sovereignty exercised by one organ and as regards other matters by -another organ. - -In spite of this condition of things, the old controversy regarding -divisibility of sovereignty has by no means died out. It acquired a -fresh stimulus, on the one hand, through Switzerland and Germany turning -into Federal States, and, on the other, through the conflict between the -United States of America and her Southern member-States. The theory of -the concurrent sovereignty of the Federal State and its member-States, -as defended by "The Federalist" (Alexander Hamilton, James Madison, and -John Jay) in 1787, was in Germany taken up by Waitz,[96] whom numerous -publicists followed. The theory of the indivisibility of sovereignty was -defended by Calhoun,[97] and many European publicists followed him in -time. - -[Footnote 96: Politik, 1862.] - -[Footnote 97: A Disquisition on Government, 1851.] - -[Sidenote: Result of the Controversy regarding Sovereignty.] - -[p] 70. From the foregoing sketch of the history of the conception of -sovereignty it becomes apparent that there is not and never was -unanimity regarding this conception. It is therefore no wonder that the -endeavour has been made to eliminate the conception of sovereignty from -the science of politics altogether, and likewise to eliminate -sovereignty as a necessary characteristic of statehood, so that States -with and without sovereignty would in consequence be distinguishable. It -is a fact that sovereignty is a term used without any well-recognised -meaning except that of supreme authority. Under these circumstances -those who do not want to interfere in a mere scholastic controversy must -cling to the facts of life and the practical, though abnormal and -illogical, condition of affairs. As there can be no doubt about the fact -that there are semi-independent States in existence, it may well be -maintained that sovereignty is divisible. - - -II - -RECOGNITION OF STATES AS INTERNATIONAL PERSONS - - Hall, [p][p] 2 and 26--Lawrence, [p][p] 44-47--Phillimore, II. [p][p] - 10-23--Taylor, [p][p] 153-160--Walker, [p] 1--Westlake, I. pp. - 49-58--Wheaton, [p] 27--Moore, [p][p] 27-75--Bluntschli, [p][p] - 28-38--Hartmann, [p] 11--Heffter, [p] 23--Holtzendorff in - Holtzendorff, II. pp. 18-33--Liszt, [p] 5--Ullmann, [p][p] - 29-30--Bonfils, Nos. 195-213--Despagnet, Nos. - 79-85--Pradier-Fodere, I. Nos. 136-145--Nys, I. pp. - 69-115--Merignhac, I. pp. 320-329--Rivier, I. [p] 3--Calvo, I. [p][p] - 87-98--Fiore, I. Nos. 311-320, and Code, Nos. 160-177--Martens, I. - [p][p] 63-64--Le Normand, "La reconnaissance internationale et ses - diverses applications" (1899). - -[Sidenote: Recognition a condition of Membership of the Family of -Nations.] - -[p] 71. As the basis of the Law of Nations is the common consent of the -civilised States, statehood alone does not include membership of the -Family of Nations. There are States in existence, although their number -decreases gradually, which are not, or not fully, members of that -family, because their civilisation, if any, does not enable them and -their subjects to act in conformity with the principles of International -Law. Those States which are members are either original members because -the Law of Nations grew up gradually between them through custom and -treaties, or they are members which have been recognised by the body of -members already in existence when they were born.[98] For every State -that is not already, but wants to be, a member, recognition is therefore -necessary. A State is and becomes an International Person through -recognition only and exclusively. - -[Footnote 98: See above, [p][p] 27 and 28.] - -Many writers do not agree with this opinion. They maintain that, if a -new civilised State comes into existence either by breaking off from an -existing recognised State, as Belgium did in 1831, or otherwise, such -new State enters of right into the Family of Nations and becomes of -right an International Person.[99] They do not deny that practically -such recognition is necessary to enable every new State to enter into -official intercourse with other States. Yet they assert that -theoretically every new State becomes a member of the Family of Nations -_ipso facto_ by its rising into existence, and that recognition supplies -only the necessary evidence for this fact. - -[Footnote 99: See, for instance, Hall, [p][p] 2 and 26; Ullmann, [p] 29; -Gareis, p. 64; Rivier, I. p. 57.] - -If the real facts of international life are taken into consideration, -this opinion cannot stand. It is a rule of International Law that no new -State has a right towards other States to be recognised by them, and -that no State has the duty to recognise a new State. It is generally -agreed that a new State before its recognition cannot claim any right -which a member of the Family of Nations has towards other members. It -can, therefore, not be seen what the function of recognition could be if -a State entered at its birth really of right into the membership of the -Family of Nations. There is no doubt that statehood itself is -independent of recognition. International Law does not say that a State -is not in existence as long as it is not recognised, but it takes no -notice of it before its recognition. Through recognition only and -exclusively a State becomes an International Person and a subject of -International Law. - -[Sidenote: Mode of Recognition.] - -[p] 72. Recognition is the act through which it becomes apparent that an -old State is ready to deal with a new State as an International Person -and a member of the Family of Nations. Recognition is given either -expressly or tacitly. If a new State asks formally for recognition and -receives it in a formal declaration of any kind, it receives express -recognition. On the other hand, recognition is tacitly and indirectly -given when an old State enters officially into intercourse with the new, -be it by sending or receiving a diplomatic envoy,[100] or by concluding -a treaty, or by any other act through which it becomes apparent that the -new State is actually treated as an International Person. - -[Footnote 100: Whether the sending of a consul includes recognition is -discussed below, [p] 428.] - -But no new State has by International Law a right to demand recognition, -although practically such recognition cannot in the long run be -withheld, because without it there is no possibility of entering into -intercourse with the new State. The interests of the old States must -suffer quite as much as those of the new State, if recognition is for -any length of time refused, and practically these interests in time -enforce either express or tacit recognition. History nevertheless -records many cases of deferred recognition,[101] and, apart from other -proof, it becomes thereby apparent that the granting or the denial of -recognition is not a matter of International Law but of international -policy. - -[Footnote 101: See the cases enumerated by Rivier, I. p. 58.] - -It must be specially mentioned that recognition by one State is not at -all binding upon other States, so that they must follow suit. But in -practice such an example, if set by one or more Great Powers and at a -time when the new State is really established on a sound basis, will -make many other States at a later period give their recognition too. - -[Sidenote: Recognition under Conditions.] - -[p] 73. Recognition will as a rule be given without any conditions -whatever, provided the new State is safely and permanently established. -Since, however, the granting of recognition is a matter of policy, and -not of law, nothing prevents an old State from making the recognition of -a new State dependent upon the latter fulfilling certain conditions. -Thus the Powers assembled at the Berlin Congress in 1878 recognised -Bulgaria, Montenegro, Servia, and Roumania under the condition only that -these States did not[102] impose any religious disabilities on any of -their subjects.[103] The meaning of such conditional recognition is not -that recognition can be withdrawn in case the condition is not complied -with. The nature of the thing makes recognition, if once given, -incapable of withdrawal. But conditional recognition, if accepted by the -new State, imposes the internationally legal duty upon such State of -complying with the condition; failing which a right of intervention is -given to the other party for the purpose of making the recognised State -comply with the imposed condition. - -[Footnote 102: This condition contains a restriction on the personal -supremacy of the respective States. See below, [p] 128.] - -[Footnote 103: See arts. 5, 25, 35, and 44 of the Treaty of Berlin of -1878, in Martens, N.R.G. 2nd Ser. III. p. 449.] - -[Sidenote: Recognition timely and precipitate.] - -[p] 74. Recognition is of special importance in those cases where a new -State tries to establish itself by breaking off from an existing State -in the course of a revolution. And here the question is material whether -a new State has really already safely and permanently established itself -or only makes efforts to this end without having already succeeded. That -in every case of civil war a foreign State can recognise the insurgents -as a belligerent Power if they succeed in keeping a part of the country -in their hands and set up a Government of their own, there is no doubt. -But between this recognition as a belligerent Power and the recognition -of these insurgents and their part of the country as a new State, there -is a broad and deep gulf. And the question is precisely at what exact -time recognition of a new State may be given instead of the recognition -as a belligerent Power. For an untimely and precipitate recognition as a -new State is a violation of the dignity[104] of the mother-State, to -which the latter need not patiently submit. - -[Footnote 104: It is frequently maintained that such untimely -recognition contains an intervention. But this is not correct, since -intervention is (see below, [p] 134) _dictatorial_ interference in the -affairs of another State. The question of recognition of the -belligerency of insurgents is exhaustively treated by Westlake, I. pp. -50-57.] - -In spite of the importance of the question, no hard-and-fast rule can -be laid down as regards the time when it can be said that a State -created by revolution has established itself safely and permanently. The -characteristic of such safe and permanent establishment may be found -either in the fact that the revolutionary State has utterly defeated the -mother-State, or that the mother-State has ceased to make efforts to -subdue the revolutionary State, or even that the mother-State, in spite -of its efforts, is apparently incapable of bringing the revolutionary -back under its sway.[105] Of course, as soon as the mother-State itself -recognises the new State, there is no reason for other States to -withhold any longer their recognition, although they have even then no -legal obligation to grant it. - -[Footnote 105: When, in 1903, Panama fell away from Colombia, the United -States immediately recognised the new Republic as an independent State. -For the motives of this quick action, see Moore, I. [p] 344, pp. 46 and -following.] - -The breaking off of the American States from their European -mother-States furnishes many illustrative examples. Thus the recognition -of the United States by France in 1778 was precipitate. But when in 1782 -England herself recognised the independence of the United States, other -States could accord recognition too without giving offence to England. -Again, when the South American colonies of Spain declared their -independence in 1810, no Power recognised the new States for many years. -When, however, it became apparent that Spain, although she still kept up -her claims, was not able to restore her sway, the United States -recognised the new States in 1822, and England followed the example in -1824 and 1825.[106] - -[Footnote 106: See Gibbs, "Recognition: a Chapter from the History of -the North American and South American States" (1863), and Moore, I. [p][p] -28-36.] - -[Sidenote: State Recognition in contradistinction to other -Recognitions.] - -[p] 75. Recognition of a new State must not be confounded with other -recognitions. Recognition of insurgents as a belligerent Power has -already been mentioned. Besides this, recognition of a change in the -form of the government or of change in the title of an old State is a -matter of importance. But the granting or refusing of these recognitions -has nothing to do with recognition of the State itself. If a foreign -State refuses the recognition of a change in the form of the government -of an old State, the latter does not thereby lose its recognition as an -International Person, although no official intercourse is henceforth -possible between the two States as long as recognition is not given -either expressly or tacitly. And if recognition of a new title[107] of -an old State is refused, the only consequence is that such State cannot -claim any privileges connected with the new title. - -[Footnote 107: See below, [p] 119.] - - -III - -CHANGES IN THE CONDITION OF INTERNATIONAL PERSONS - - Grotius, II. c. 9, [p][p] 5-13--Pufendorf, VIII. c. 12--Vattel, I. [p] - 11--Hall, [p] 2--Halleck, I. pp. 89-92--Phillimore, I. [p][p] - 124-137--Taylor, [p] 163--Westlake, I. pp. 58-66--Wheaton, [p][p] - 28-32--Moore, I. [p][p] 76-79--Bluntschli, [p][p] 39-53--Hartmann, [p][p] - 12-13--Heffter, [p] 24--Holtzendorff in Holtzendorff, II. pp. - 21-23--Liszt, [p] 5--Ullmann, [p][p] 31 and 35--Bonfils, Nos. - 214-215--Despagnet, Nos. 86-89--Pradier-Fodere, I. Nos. - 146-157--Nys, I. pp. 399-401--Rivier, I. [p] 3--Calvo, I. [p][p] - 81-106--Fiore, I. Nos. 321-331, and Code, Nos. 119-141--Martens, - I. [p][p] 65-69. - -[Sidenote: Important in contradistinction to Indifferent Changes.] - -[p] 76. The existence of International Persons is exposed to the flow of -things and times. There is a constant and gradual change in their -citizens through deaths and births, emigration, and immigration. There -is a frequent change in those individuals who are at the head of the -States, and there is sometimes a change in the form of their -governments, or in their dynasties if they are monarchies. There are -sometimes changes in their territories through loss or increase of parts -thereof, and there are sometimes changes regarding their independence -through partial or total loss of the same. Several of these and other -changes in the condition and appearance of International Persons are -indifferent to International Law, although they may be of great -importance for the inner development of the States concerned and -directly or indirectly for international policy. Those changes, on the -other hand, which are, or may be, of importance to International Law -must be divided into three groups according to their influence upon the -character of the State concerned as an International Person. For some of -these changes affect a State as an International Person, others do not; -again, others extinguish a State as an International Person altogether. - -[Sidenote: Changes not affecting States as International Persons.] - -[p] 77. A State remains one and the same International Person in spite of -changes in its headship, in its dynasty, in its form, in its rank and -title, and in its territory. These changes cannot be said to be -indifferent to International Law. Although strictly no notification to -and recognition by foreign Powers are necessary, according to the Law of -Nations, in case of a change in the headship of a State or in its entire -dynasty, or if a monarchy becomes a republic or _vice versa_, no -official intercourse is possible between the Powers refusing recognition -and the State concerned. Although, further, a State can assume any title -it likes, it cannot claim the privileges of rank connected with a title -if foreign States refuse recognition. And although, thirdly, a State can -dispose according to discretion of parts of its territory and acquire as -much territory as it likes, foreign Powers may intervene for the purpose -of maintaining a balance of power or on account of other vital -interests. - -But whatever may be the importance of such changes, they neither affect -a State as an International Person, nor affect the personal identity of -the States concerned. France, for instance, has retained her personal -identity from the time the Law of Nations came into existence until the -present day, although she acquired and lost parts of her territory, -changed her dynasty, was a kingdom, a republic, an empire, again a -kingdom, again a republic, again an empire, and is now, finally as it -seems, a republic. All her international rights and duties as an -International Person remained the very same throughout the centuries in -spite of these important changes in her condition and appearance. Even -such loss of territory as occasions the reduction of a Great Power to a -small Power, or such increase of territory and strength as turns a small -State into a Great Power, does not affect a State as an International -Person. Thus, although through the events of the years 1859-1861 -Sardinia acquired the whole territory of the Italian Peninsula and -turned into the Great Power of Italy, she remained one and the same -International Person. - -[Sidenote: Changes affecting States as International Persons.] - -[p] 78. Changes which affect States as International Persons are of -different character. - -(1) As in a Real Union the member-States of the union, although fully -independent, make one International Person,[108] two States which -hitherto were separate International Persons are affected in that -character by entering into a Real Union. For through that change they -appear henceforth together as one and the same International Person. And -should this union be dissolved, the member-States are again affected, -for they now become again separate International Persons. - -[Footnote 108: See below, [p] 87, where the character of the Real Union is -fully discussed.] - -(2) Other changes affecting States as International Persons are such -changes as involve a partial loss of independence on the part of the -States concerned. Many restrictions may be imposed upon States without -interfering with their independence proper,[109] but certain -restrictions involve inevitably a partial loss of independence. Thus if -a hitherto independent State comes under the suzerainty of another State -and becomes thereby a half-Sovereign State, its character as an -International Person is affected. The same is valid with regard to a -hitherto independent State which comes under the protectorate of another -State. Again, if several hitherto independent States enter into a -Federal State, they transfer a part of their sovereignty to the Federal -State and become thereby part-Sovereign States. On the other hand, if a -vassal State or a State under protectorate is freed from the suzerainty -or protectorate, it is thereby affected as an International Person, -because it turns now into a full Sovereign State. And the same is valid -with regard to a member-State of a Federal State which leaves the union -and gains the condition of a full Sovereign State. - -[Footnote 109: See below, [p][p] 126-127, where the different kinds of -these restrictions are discussed.] - -(3) States which become permanently neutralised are thereby also -affected in their character as International Persons, although their -independence remains untouched. But permanent neutralisation alters the -condition of a State so much that it thereby becomes an International -Person of a particular kind. - -[Sidenote: Extinction of International Persons.] - -[p] 79. A State ceases to be an International Person when it ceases to -exist. Theoretically such extinction of International Persons is -possible through emigration or the perishing of the whole population of -a State, or through a permanent anarchy within a State. But it is -evident that such cases will hardly ever occur in fact. Practical cases -of extinction of States are: Merger of one State into another, -annexation after conquest in war, breaking up of a State into several -States, and breaking up of a State into parts which are annexed by -surrounding States. - -By voluntarily merging into another State, a State loses all its -independence and becomes a mere part of another. In this way the Duchy -of Courland merged in 1795 into Russia, the two Principalities of -Hohenzollern-Hechingen and Hohenzollern-Sigmaringen in 1850 into -Prussia, the Congo Free State in 1908 into Belgium, and Korea in 1910 -into Japan. And the same is the case if a State is subjugated by -another. In this way the Orange Free State and the South African -Republic were absorbed by Great Britain in 1901. An example of the -breaking up of a State into different States is the division of the -Swiss canton of Basle into Basel-Stadt and Basel-Land in 1833. And an -example of the breaking up of a State into parts which are annexed by -surrounding States is the absorption of Poland by Russia, Austria, and -Prussia in 1795. - - -IV - -SUCCESSION OF INTERNATIONAL PERSONS[110] - - Grotius, II. c. 9 and 10--Pufendorf, VIII. c. 12--Hall, [p][p] - 27-29--Phillimore, I. [p] 137--Lawrence, [p] 49--Halleck, I. pp. - 89-92--Taylor, [p][p] 164-168--Westlake, I. pp. 68-83--Wharton, I. [p] - 5--Moore, I. [p][p] 92-99--Wheaton, [p][p] 28-32--Bluntschli, [p][p] - 47-50--Hartmann, [p] 12--Heffter, [p] 25--Holtzendorff in - Holtzendorff, II. pp. 33-47--Liszt, [p] 23--Ullmann, [p] 32--Bonfils, - Nos. 216-233--Despagnet, Nos. 89-102--Pradier-Fodere, I. Nos. - 156-163--Nys, I. pp. 399-401--Rivier, I. [p] 3, pp. 69-75 and p. - 438--Calvo, I. [p][p] 99-103--Fiore, I. Nos. 349-366--Martens, I. [p] - 67--Appleton, "Des effets des annexions sur les dettes de l'etat - demembre ou annexe" (1895)--Huber, "Die Staatensuccession" - (1898)--Keith, "The Theory of State Succession, with special - reference to English and Colonial Law" (1907)--Cavaglieri, "La - dottrina della successione di stato a stato, &c." (1910)--Richards - in _The Law Magazine and Review_, XXVIII. (1903), pp. - 129-141--Keith in Z.V. III. (1909), pp. 618-648--Hershey in A.J. - V. (1911), pp. 285-297. - -[Footnote 110: The following text treats only of the broad outlines of -the subject, as the practice of the States has hardly settled more than -general principles. Details must be studied in Huber, "Die -Staatensuccession" (1898), and Keith, "The Theory of State Succession, -&c." (1907); the latter writer's analysis of cases in Z.V. III. (1909), -pp. 618-648, is likewise very important.] - -[Sidenote: Common Doctrine regarding Succession of International -Persons.] - -[p] 80. Although there is no unanimity among the writers on International -Law with regard to the so-called succession of International Persons, -nevertheless the following common doctrine can be stated to exist. - -A succession of International Persons occurs when one or more -International Persons take the place of another International Person, in -consequence of certain changes in the latter's condition. - -Universal succession takes place when one International Person is -absorbed by another, either through subjugation or through voluntary -merger. And universal succession further takes place when a State breaks -up into parts which either become separate International Persons of -their own or are annexed by surrounding International Persons. - -Partial succession takes place, first, when a part of the territory of -an International Person breaks off in a revolt and by winning its -independence becomes itself an International Person; secondly, when one -International Person acquires a part of the territory of another through -cession; thirdly, when a hitherto full Sovereign State loses part of its -independence through entering into a Federal State, or coming under -suzerainty or under a protectorate, or when a hitherto not-full -Sovereign State becomes full Sovereign; fourthly, when an International -Person becomes a member of a Real Union or _vice versa_. - -Nobody ever maintained that on the successor devolve all the rights and -duties of his predecessor. But after stating that a succession takes -place, the respective writers try to educe the consequences and to make -out what rights and duties do, and what do not, devolve. - -Several writers,[111] however, contest the common doctrine and maintain -that a succession of International Persons never takes place. Their -argument is that the rights and duties of an International Person -disappear with the extinguished Person or become modified according to -the modifications an International Person undergoes through losing part -of its sovereignty. - -[Footnote 111: See Gareis, pp. 66-70, who discusses the matter with -great clearness, and Liszt, [p] 23.] - -[Sidenote: How far Succession actually takes place.] - -[p] 81. If the real facts of life are taken into consideration, the common -doctrine cannot be upheld. To say that succession takes place in such -and such cases and to make out afterwards what rights and duties -devolve, shows a wrong method of dealing with the problem. It is certain -that no _general_ succession takes place according to the Law of -Nations. With the extinction of an International Person disappear its -rights and duties as a person. But it is equally wrong to maintain that -no succession whatever occurs. For nobody doubts that certain rights and -duties actually and really devolve upon an International Person from its -predecessor. And since this devolution takes place through the very fact -of one International Person following another in the possession of State -territory, there is no doubt that, as far as these devolving rights and -duties are concerned, a succession of one International Person to the -rights and duties of another really does take place. But no general rule -can be laid down concerning all the cases in which a succession takes -place. These cases must be discussed singly. - -[Sidenote: Succession in consequence of Absorption.] - -[p] 82. When a State merges voluntarily into another State--as, for -instance, Korea in 1910 did into Japan--or when a State is subjugated by -another State, the latter remains one and the same International Person -and the former becomes totally extinct as an International Person. No -succession takes place, therefore, with regard to rights and duties of -the extinct State arising either from the character of the latter as an -International Person or from its purely political treaties. Thus -treaties of alliance or of arbitration or of neutrality or of any other -political nature fall to the ground with the extinction of the State -which concluded them. They are personal treaties, and they naturally, -legally, and necessarily presuppose the existence of the contracting -State. But it is controversial whether treaties of commerce, -extradition, and the like, of the extinct State remain valid and -therefore a succession takes place. The majority of writers correctly, I -think, answer the question in the negative, because such treaties, -although they are non-political in a sense, possess some prominent -political traits.[112] - -[Footnote 112: On the whole question concerning the extinction of -treaties in consequence of the absorption of a State by another, see -Moore, V. [p] 773, and below, [p] 548. When, in 1910, Korea merged into -Japan, the latter published a Declaration--see Martens, N.R.G. 3rd Ser. -IV. p. 26--containing the following articles with regard to the treaty -obligations of the extinct State of Korea:-- - -1. Treaties hitherto concluded by Korea with foreign Powers ceasing to -be operative, Japan's existing treaties will, so far as practicable, be -applied to Korea. Foreigners resident in Korea will, so far as -conditions permit, enjoy the same rights and immunities as in Japan -proper, and the protection of their legally acquired rights subject in -all cases to the jurisdiction of Japan. The Imperial Government of Japan -is ready to consent that the jurisdiction in respect of the cases -actually pending in any foreign Consular Court in Korea at the time the -Treaty of Annexation takes effect shall remain in such Court until final -decision. - -2. Independently of any conventional engagements formerly existing on -the subject, the Imperial Government of Japan will for a period of ten -years levy upon goods imported into Korea from foreign countries or -exported from Korea to foreign countries and upon foreign vessels -entering any of the open ports of Korea the same import or export duties -and the same tonnage dues as under the existing schedules. The same -import or export duties and tonnage dues as those to be levied upon the -aforesaid goods and vessels will also for a period of ten years be -applied in respect of goods imported into Korea from Japan or exported -from Korea to Japan and Japanese vessels entering any of the open ports -of Korea. - -3. The Imperial Government of Japan will also permit for a period of ten -years vessels under flags of the Powers having treaties with Japan to -engage in the coasting trade between the open ports of Korea and between -those ports and any open port of Japan. - -4. The existing open ports of Korea, with the exemption of Masampo, will -be continued as open ports, and in addition Shiwiju will be newly opened -so that vessels, foreign as well as Japanese, will there be admitted and -goods may be imported into and exported from these ports.] - -A real succession takes place, however, first, with regard to such -international rights and duties of the extinct State as are locally -connected with its land, rivers, main roads, railways, and the like. -According to the principle _res transit cum suo onere_, treaties of the -extinct State concerning boundary lines, repairing of main roads, -navigation on rivers, and the like, remain valid, and all rights and -duties arising from such treaties of the extinct State devolve on the -absorbing State. - -A real succession, secondly, takes place with regard to the fiscal -property and the fiscal funds of the extinct State. They both accrue to -the absorbing State _ipso facto_ by the absorption of the extinct -State.[113] But the debts[114] of the extinct State must, on the other -hand, also be taken over by the absorbing State.[115] The private -creditor of an extinct State certainly acquires no right[116] by -International Law against the absorbing State, since the Law of Nations -is a law between States only and exclusively. But if he is a foreigner, -the right of protection due to his home State enables the latter to -exercise pressure upon the absorbing State for the purpose of making it -fulfil its international duty to take over the debts of the extinct -State. Some jurists[117] go so far as to maintain that the succeeding -State must take over the debts of the extinct State, even when they are -higher than the value of the accrued fiscal property and fiscal funds. -But I doubt whether in such cases the practice of the States would -follow that opinion. On the other hand, a State which has subjugated -another would be compelled[118] to take over even such obligations as -have been incurred by the annexed State for the immediate purpose of the -war which led to its subjugation.[119] - -[Footnote 113: This was recognised by the High Court of Justice in 1866 -in the case of the United States _v._ Prioleau. See Scott, "Cases on -International Law" (1902), p. 85.] - -[Footnote 114: See Moore, I. [p] 97, and Appleton, "Des effets des -annexions de territoires sur les dettes, &c." (1895).] - -[Footnote 115: This is almost generally recognised by writers on -International Law and the practice of the States. (See Huber, op. cit. -pp. 156 and 282, note 449.) The Report of the Transvaal Concessions -Commission (see British State Papers, South Africa, 1901, Cd. 623), -although it declares (p. 7) that "it is clear that a State which has -annexed another is not legally bound by any contracts made by the State -which has ceased to exist," nevertheless agrees that "the modern usage -of nations has tended in the acknowledgment of such contracts." It may, -however, safely be maintained that not a usage, but a real rule of -International Law, based on custom, is in existence with regard to this -point. (See Hall, [p] 29, and Westlake in _The Law Quarterly Review_, -XVII. (1901), pp. 392-401, XXXI. (1905), p. 335, and now Westlake, I. -pp. 74-82.)] - -[Footnote 116: This is the real portent of the judgment in the case of -Cook _v._ Sprigg, L.R. (1899), A.C. 572, and in the case of the West -Rand Central Gold Mining Co. _v._ The King (1905), 2 K.B. 391. In so far -as the latter judgment denies the existence of a rule of International -Law that compels a subjugator to pay the debts of the subjugated State, -its arguments are in no wise decisive. An International Court would -recognise such a rule.] - -[Footnote 117: See Martens, I. [p] 67; Heffter, [p] 25; Huber, op. cit. p. -158.] - -[Footnote 118: See the Report of the Transvaal Concession Commission, p. -9, which maintains the contrary. Westlake (I. p. 78) adopts the -reasoning of this report, but his arguments are not decisive. The -lending of money to a belligerent under ordinary mercantile -conditions--see Barclay in _The Law Quarterly Review_, XXI. (1905), p. -307--is not prohibited by International Law, although the carriage of -such funds in cash on neutral vessels to the enemy falls under the -category of carriage of contraband, and can be punished by the -belligerents. (See below, Vol. II. [p] 352.)] - -[Footnote 119: The question how far concessions granted by a subjugated -State to a private individual or to a company must be upheld by the -subjugating State, is difficult to answer in its generality. The merits -of each case would seem to have to be taken into consideration. See -Westlake, I. p. 82; Moore, I. [p] 98; Gidel, "Des effets de l'annexion sur -les concessions" (1904).] - -The case of a Federal State arising--like the German Empire in -1871--above a number of several hitherto full Sovereign States also -presents, with regard to many points, a case of State succession.[120] -However, no hard-and-fast rules can be laid down concerning it, since -everything depends upon the question whether the Federal State is one -which--like all those of America--totally absorbs all international -relations of the member-States, or whether it absorbs--like the German -Empire and Switzerland--these relations to a greater extent only.[121] - -[Footnote 120: See Huber, op. cit. pp. 163-169, and Keith, op. cit. pp. -92-98.] - -[Footnote 121: See below, [p] 89.] - -[Sidenote: Succession in consequence of Dismemberment.] - -[p] 83. When a State breaks up into fragments which themselves become -States and International Persons, or which are annexed by surrounding -States, it becomes extinct as an International Person, and the same -rules are valid as regards the case of absorption of one State by -another. A difficulty is, however, created when the territory of the -extinct State is absorbed by several States. Succession actually takes -place here too, first, with regard to the international rights and -duties locally connected with those parts of the territory which the -respective States have absorbed. Succession takes place, secondly, with -regard to the fiscal property and the fiscal funds which each of the -several absorbing States finds on the part of the territory it absorbs. -And the debts of the extinct State must be taken over. But the case is -complicated through the fact that there are several successors to the -fiscal property and funds, and the only rule which can be laid down is -that proportionate parts of the debts must be taken over by the -different successors. - -When--as in the case of Sweden-Norway in 1905--a Real Union[122] is -dissolved and the members become International Persons of their own, a -succession likewise takes place. All treaties concluded by the Union -devolve upon the former members, except those which were concluded by -the Union for one member only--_e.g._ by Sweden-Norway for Norway--and -which, therefore, devolve upon such former member only, and, further, -except those which concerned the very Union and lose all meaning by its -dissolution. - -[Footnote 122: See below, [p] 87.] - -[Sidenote: Succession in case of Separation or Cession.] - -[p] 84. When in consequence of war or otherwise one State cedes a part of -its territory to another, or when a part of the territory of a State -breaks off and becomes a State and an International Person of its own, -succession takes place with regard to such international rights and -duties of the predecessor as are locally connected with the part of the -territory ceded or broken off, and with regard to the fiscal property -found on that part of the territory. It would only be just, if the -successor had to take over a corresponding part of the debt of its -predecessor, but no rule of International Law concerning this point can -be said to exist, although many treaties have stipulated a devolution of -a part of the debt of the predecessor upon the successor.[123] Thus, for -instance, arts. 9, 33, 42 of the Treaty of Berlin[124] of 1878 stipulate -that Bulgaria, Montenegro, and Servia should take over a part of the -Turkish debt. On the other hand, the United States refused, after the -cession of Cuba in 1898, to take over from Spain the so-called Cuban -debt--that is, the debt which was settled by Spain on Cuba before the -war.[125] Spain argued that it was not intended to transfer to the -United States a proportional part of the debt of Spain, but only such -debt as attached individually to the island of Cuba. The United States, -however, met this argument by the correct assertion that the debt -concerned was not one incurred by Cuba, but by Spain, and settled by her -on Cuba. - -[Footnote 123: Many writers, however, maintain that there is such a rule -of International Law. See Huber, op. cit. Nos. 125-135 and 205, where -the respective treaties are enumerated.] - -[Footnote 124: See Martens, N.R.G. 2nd Ser. III. p. 449.] - -[Footnote 125: See Moore, III. [p] 97, pp. 351-385.] - - -V - -COMPOSITE INTERNATIONAL PERSONS - - Pufendorf, VII. c. 5--Hall, [p] 4--Westlake, I. pp. - 31-37--Phillimore, I. [p][p] 71-74, 102-105--Twiss, I. [p][p] - 37-60--Halleck, I. pp. 70-74--Taylor, [p][p] 120-130--Wheaton, [p][p] - 39-51--Moore, I. [p][p] 6-11--Hartmann, [p] 70--Heffter, [p][p] - 20-21--Holtzendorff in Holtzendorff, II. pp. 118-141--Liszt, [p] - 6--Ullmann, [p][p] 20-24--Bonfils, Nos. 165-174--Despagnet, Nos. - 109-126--Pradier-Fodere, I. Nos. 117-123--Merignhac, II. pp. - 6-42--Nys, I. pp. 367-378--Rivier, I. [p][p] 5-6--Calvo, I. [p][p] - 44-61--Fiore, I. Nos. 335-339, and Code, Nos. 96-104--Martens, I. - [p][p] 56-59--Pufendorf, "De systematibus civitatum" (1675)--Jellinek, - "Die Lehre von den Staatenverbindungen" (1882)--Borel, "Etude sur - la souverainete de l'Etat federatif" (1886)--Brie, "Theorie der - Staatenverbindungen" (1886)--Hart, "Introduction to the Study of - Federal Government" in "Harvard Historical Monographs," 1891 - (includes an excellent bibliography)--Le Fur, "Etat federal et - confederation d'Etats" (1896)--Moll, "Der Bundesstaatsbegriff in - den Vereinigten Staaten von America" (1905)--Ebers, "Die Lehre vom - Staatenbunde" (1910). - -[Sidenote: Real and apparent Composite International Persons.] - -[p] 85. International Persons are as a rule single Sovereign States. In -such single States there is one central political authority as -Government which represents the State, within its borders as well as -without in the international intercourse with other International -Persons. Such single States may be called _simple_ International -Persons. And a State remains a simple International Person, although it -may grant so much internal independence to outlying parts of its -territory that these parts become in a sense States themselves. Great -Britain is a simple International Person, although the Dominion of -Canada, Newfoundland, the Commonwealth of Australia, New Zealand, and -the Union of South Africa, are now States of their own, because Great -Britain is alone Sovereign and represents exclusively the British Empire -within the Family of Nations. - -Historical events, however, have created, in addition to the simple -International Persons, _composite_ International Persons. A composite -International Person is in existence when two or more Sovereign States -are linked together in such a way that they take up their position -within the Family of Nations either exclusively or at least to a great -extent as one single International Person. History has produced two -different kinds of such composite International Persons--namely, Real -Unions and Federal States. In contradistinction to Real Unions and -Federal States, a so-called Personal Union and the union of so-called -Confederated States are not International Persons.[126] - -[Footnote 126: I cannot agree with Westlake (I. p. 37) that "the space -which some writers devote to the distinctions between the different -kinds of union between States" is "disproportioned ... to their -international importance." Very important questions are connected with -these distinctions. The question, for instance, whether a diplomatic -envoy sent by Bavaria to this country must be granted the privileges due -to a foreign diplomatic envoy depends upon the question whether Bavaria -is an International Person in spite of her being a member-State of the -German Empire.] - -[Sidenote: States in Personal Union.] - -[p] 86. A Personal Union is in existence when two Sovereign States and -separate International Persons are linked together through the -accidental fact that they have the same individual as monarch. Thus a -Personal Union existed from 1714 to 1837 between Great Britain and -Hanover, from 1815 to 1890 between the Netherlands and Luxemburg, and -from 1885 to 1908 between Belgium and the former Congo Free State. At -present there is no Personal Union in existence. A Personal Union is -not, and is in no point treated as though it were, an International -Person, and its two Sovereign member-States remain separate -International Persons. Theoretically it is even possible that they make -war against each other, although practically this will never occur. If, -as sometimes happens, they are represented by one and the same -individual as diplomatic envoy, such individual is the envoy of both -States at the same time, but not the envoy of the Personal Union. - -[Sidenote: States in Real Union.] - -[p] 87. A Real Union[127] is in existence when two Sovereign States are by -an international treaty, recognised by other Powers, linked together for -ever under the same monarch, so that they make one and the same -International Person. A Real Union is not itself a State, but merely a -union of two full Sovereign States which together make one single but -composite International Person. They form a compound Power, and are by -the treaty of union prevented from making war against each other. On the -other hand, they cannot make war separately against a foreign Power, nor -can war be made against one of them separately. They can enter into -separate treaties of commerce, extradition, and the like, but it is -always the Union which concludes such treaties for the separate States, -as they separately are not International Persons. It is, for instance, -Austria-Hungary which concludes an international treaty of extradition -between Hungary and a foreign Power. The only Real Union at present in -existence outside the German Empire[128] is that of Austria-Hungary, -that of Sweden-Norway having been dissolved in 1905. - -[Footnote 127: See Bluethgen in Z.V. I. (1906), pp. 237-263.] - -[Footnote 128: There is a Real Union between Saxe-Coburg and Saxe-Gotha -within the German Empire.] - -Austria-Hungary became a Real Union in 1723. In 1849, Hungary was -united with Austria, but in 1867 Hungary became again a separate -Sovereign State and the Real Union was re-established. Their army, navy, -and foreign ministry are united. The Emperor-King declares war, makes -peace, concludes alliances and other treaties, and sends and receives -the same diplomatic envoys for both States. - -Sweden-Norway became a Real Union[129] in 1814. The King could declare -war, make peace, conclude alliances and other treaties, and send and -receive the same diplomatic envoys for both States. The Foreign -Secretary of Sweden managed at the same time the foreign affairs of -Norway. Both States had, however, in spite of the fact that they made -one and the same International Person, different commercial and naval -flags. The Union was peacefully dissolved by the Treaty of Karlstad of -October 26, 1905. Norway became a separate kingdom, the independence and -integrity of which is guaranteed by Great Britain, France, Germany, and -Russia by the Treaty of Christiania of November 2, 1907.[130] - -[Footnote 129: This is not universally recognised. Phillimore, I. [p] 74, -maintains that there was a Personal Union between Sweden and Norway, and -Twiss, I. [p] 40, calls it a Federal Union.] - -[Footnote 130: See above, [p] 50, p. 75.] - -[Sidenote: Confederated States (Staatenbund).] - -[p] 88. Confederated States (Staatenbund) are a number of full Sovereign -States linked together for the maintenance of their external and -internal independence by a recognised international treaty into a union -with organs of its own, which are vested with a certain power over the -member-States, but not over the citizens of these States. Such a union -of Confederated States is not any more itself a State than a Real Union -is; it is merely an International Confederation of States, a society of -international character, since the member-States remain full Sovereign -States and separate International Persons. Consequently, the union of -Confederated States is not an International Person, although it is for -some parts so treated on account of its representing the compound power -of the full Sovereign member-States. The chief and sometimes the only -organ of the union is a Diet, where the member-States are represented by -diplomatic envoys. The power vested in the Diet is an International -Power which does not in the least affect the full sovereignty of the -member-States. That power is essentially nothing else than the right of -the body of the members to make war against such a member as will not -submit to those commandments of the Diet which are in accordance with -the Treaty of Confederation, war between the member-States being -prohibited in all other cases. - -History has shown that Confederated States represent an organisation -which in the long run gives very little satisfaction. It is for that -reason that the three important unions of Confederated States of modern -times--namely, the United States of America, the German, and the Swiss -Confederation--have turned into unions of Federal States. Notable -historic Confederations are those of the Netherlands from 1580 to 1795, -the United States of America from 1778 to 1787, Germany from 1815 to -1866, Switzerland from 1291 to 1798 and from 1815 to 1848, and the -Confederation of the Rhine (Rheinbund) from 1806 to 1813. At present -there is no union of Confederated States. The last in existence, the -major Republic of Central America,[131] which comprised the three full -Sovereign States of Honduras, Nicaragua, and San Salvador, and was -established in 1895, came to an end in 1898. - -[Footnote 131: See N.R.G. 2nd Ser. XXXII. pp. 276-292.] - -[Sidenote: Federal States (Bundesstaaten).] - -[p] 89. A Federal State[132] is a perpetual union of several Sovereign -States which has organs of its own and is invested with power, not only -over the member-States, but also over their citizens. The union is -based, first, on an international treaty of the member-States, and, -secondly, on a subsequently accepted constitution of the Federal State. -A Federal State is said to be a real State side by side with its -member-States because its organs have a direct power over the citizens -of those member-States. This power was established by American[133] -jurists of the eighteenth century as a characteristic distinction of a -Federal State from Confederated States, and Kent as well as Story, the -two later authorities on the Constitutional Law of the United States, -adopted this distinction, which is indeed kept up until to-day by the -majority of writers on politics. Now if a Federal State is recognised as -a State of its own, side by side with its member-States, it is evident -that sovereignty must be divided between the Federal State on the one -hand, and, on the other, the member-States. This division is made in -this way, that the competence over one part of the objects for which a -State is in existence is handed over to the Federal State, whereas the -competence over the other part remains with the member-States. Within -its competence the Federal State can make laws which bind the citizens -of the member-States directly without any interference of these -member-States. On the other hand, the member-States are totally -independent as far as _their_ competence reaches. - -[Footnote 132: The distinction between Confederated States and a Federal -State is not at all universally recognised, and the terminology is -consequently not at all the same with all writers on International Law.] - -[Footnote 133: When in 1787 the draft of the new Constitution of the -United States, which had hitherto been Confederated States only, was -under consideration by the Congress at Philadelphia, three members of -the Congress--namely, Alexander Hamilton, James Madison, and John -Jay--made up their minds to write newspaper articles on the draft -Constitution with the intention of enlightening the nation which had to -vote for the draft. For this purpose they divided the different points -among themselves and treated them separately. All these articles, which -were not signed with the names of their authors, appeared under the -common title "The Federalist." They were later on collected into -book-form and have been edited several times. It is especially Nos. 15 -and 16 of "The Federalist" which establish the difference between -Confederated States and a Federal State in the way mentioned in the text -above.] - -For International Law this division of competence is only of interest in -so far as it concerns competence in _international_ matters. Since it is -always the Federal State which is competent to declare war, make peace, -conclude treaties of alliance and other political treaties, and send and -receive diplomatic envoys, whereas no member-State can of itself declare -war against a foreign State, make peace, conclude alliances and other -political treaties, the Federal State, if recognised, is certainly an -International Person of its own, with all the rights and duties of a -sovereign member of the Family of Nations. On the other hand, the -international position of the member-States is not so clear. It is -frequently maintained that they have totally lost their position within -the Family of Nations. But this opinion cannot stand if compared with -the actual facts. Thus, the member-States of the Federal State of -Germany have retained their competence to send and receive diplomatic -envoys, not only in intercourse with one another, but also with foreign -States. Further, the reigning monarchs of these member-States are still -treated by the practice of the States as heads of Sovereign States, a -fact without legal basis if these States were no longer International -Persons. Thirdly, the member-States of Germany as well as of Switzerland -have retained their competence to conclude international treaties -between themselves without the consent of the Federal State, and they -have also retained the competence to conclude international treaties -with foreign States as regards matters of minor interest. If these -facts[134] are taken into consideration, one is obliged to acknowledge -that the member-States of a Federal State can be International Persons -in a degree. Full subjects of International Law, International Persons -with all the rights and duties regularly connected with the membership -of the Family of Nations, they certainly cannot be. Their position, if -any, within this circle is overshadowed by their Federal State, they are -part-Sovereign States, and they are, consequently, International Persons -for some parts only. - -[Footnote 134: See Riess, "Auswaertige Hoheitsrechte der deutschen -Einzelstaaten" (1905).] - -But it happens frequently that a Federal State assumes _in every way_ -the external representation of its member-States, so that, so far as -international relations are concerned, the member-States do not make an -appearance at all. This is the case with the United States of America -and all those other American Federal States whose Constitution is formed -according to the model of that of the United States. Here the -member-States are sovereign too, but only with regard to _internal_[135] -affairs. All their external sovereignty being absorbed by the Federal -State, it is certainly a fact that they are not International Persons at -all so long as this condition of things lasts. - -[Footnote 135: The Courts of the United States of America have always -upheld the theory that the United States are sovereign as to all powers -of government actually surrendered, whereas each member-State is -sovereign as to all powers reserved. See Merriam, "History of the Theory -of Sovereignty since Rousseau" (1900), p. 163.] - -This being so, two classes of Federal States must be distinguished[136] -according to whether their member-States are or are not International -Persons, although Federal States are in any case composite International -Persons. And whenever a Federal State comes into existence which leaves -the member-States for some parts International Persons, the recognition -granted to it by foreign States must include their readiness to -recognise for the future, on the one hand, the body of the -member-States, the Federal State, as one composite International Person -regarding all important matters, and, on the other hand, the single -member-States as International Persons with regard to less important -matters and side by side with the Federal State. That such a condition -of things is abnormal and illogical cannot be denied, but the very -existence of a Federal State side by side the member-States is quite as -abnormal and illogical. - -[Footnote 136: This distinction is of the greatest importance and ought -to be accepted by the writers on the science of politics.] - -The Federal States in existence are the following:--The United States of -America since 1787, Switzerland since 1848, Germany since 1871, Mexico -since 1857, Argentina since 1860, Brazil since 1891, Venezuela since -1893. - - -VI - -VASSAL STATES - - Hall, [p] 4--Westlake, I. pp. 25-27--Lawrence, [p] 39--Phillimore, - I. [p][p] 85-99--Twiss, I. [p][p] 22-36, 61-73--Taylor, [p][p] - 140-144--Wheaton, [p] 37--Moore, I. [p] 13--Bluntschli, [p][p] - 76-77--Hartmann, [p] 16--Heffter, [p][p] 19 and 22--Holtzendorff - in Holtzendorff, II. pp. 98-117--Liszt, [p] 6--Ullmann, [p] - 25--Gareis, [p] 15--Bonfils, Nos. 188-190--Despagnet, Nos. - 127-129--Merignhac, I. pp. 201-218--Pradier-Fodere, I. Nos. - 109-112--Nys, I. pp. 357-364--Rivier, I. [p] 4--Calvo, I. [p][p] - 66-72--Fiore, I. No. 341, and Code, Nos. 105-110--Martens, I. - [p][p] 60-61--Stubbs, "Suzerainty" (1884)--Baty, "International - Law in South Africa" (1900), pp. 48-68--Boghitchevitch, - "Halbsouveraenitaet" (1903). - -[Sidenote: The Union between Suzerain and Vassal State.] - -[p] 90. The union and the relations between a Suzerain and its Vassal -State create much difficulty in the science of the Law of Nations. As -both are separate States, a union of States they certainly make, but it -would be wrong to say that the Suzerain State is, like the Real Union of -States or the Federal State, a composite International Person. And it -would be equally wrong to maintain either that a Vassal State cannot be -in any way a separate International Person of its own, or that it is an -International Person of the same kind as any other State. What makes the -matter so complicated, is the fact that a general rule regarding the -relation between the suzerain and vassal, and, further, regarding the -position, if any, of the vassal within the Family of Nations, cannot be -laid down, as everything depends upon the special case. What can and -must be said is that there are some States in existence which, although -they are independent of another State as regards their internal affairs, -are as regards their international affairs either absolutely or for the -most part dependent upon another State. They are called -half-Sovereign[137] States because they are sovereign within their -borders but not without. The full Sovereign State upon which such -half-Sovereign States are either absolutely or for the most part -internationally dependent, is called the Suzerain State. - -[Footnote 137: In contradistinction to the States which are under -suzerainty or protectorate, and which are commonly called -_half_-Sovereign States, I call member-States of a Federal State -_part_-Sovereign States.] - -Suzerainty is a term which originally was used for the relation between -the feudal lord and his vassal; the lord was said to be the suzerain of -the vassal, and at that time suzerainty was a term of Constitutional Law -only. With the disappearance of the feudal system, suzerainty of this -kind likewise disappeared. Modern suzerainty contains only a few rights -of the Suzerain State over the Vassal State which can be called -constitutional rights. The rights of the Suzerain State over the Vassal -are principally international rights, of whatever they may consist. -Suzerainty is by no means sovereignty. If it were, the Vassal State -could not be Sovereign in its domestic affairs and could never have any -international relations whatever of its own. And why should suzerainty -be distinguished from sovereignty if it be a term synonymous with -sovereignty? One may correctly maintain that _suzerainty is a kind of -international guardianship_, since the Vassal State is either absolutely -or mainly represented internationally by the Suzerain State. - -[Sidenote: International Position of Vassal States.] - -[p] 91. The fact that the relation between the suzerain and the vassal -always depends upon the special case, excludes the possibility of laying -down a general rule as regards the position of Vassal States within the -Family of Nations. It is certain that a Vassal State as such need not -have any position whatever within the Family of Nations. In every case -in which a Vassal State has absolutely no relations whatever with other -States, since the suzerain absorbs these relations entirely, such vassal -remains nevertheless a half-Sovereign State on account of its internal -independence, but it has no position whatever within the Family of -Nations, and consequently is for no part whatever an International -Person and a subject of International Law. This is the position of the -Indian Vassal States of Great Britain, which have no international -relations whatever either between themselves or with foreign -States.[138] Yet instances can be given which demonstrate that Vassal -States can have some small and subordinate position within that family, -and that they must in consequence thereof in some few points be -considered as International Persons. Thus Egypt can conclude commercial -and postal treaties with foreign States without the consent of suzerain -Turkey, and Bulgaria could, while she was under Turkish Suzerainty, -conclude treaties regarding railways, post, and the like. Thus, further, -Egypt can send and receive consuls as diplomatic agents, and so could -Bulgaria while she was a Turkish Vassal State. Thus, thirdly, the former -South African Republic, although in the opinion of Great Britain under -her suzerainty, could conclude all kinds of treaties with other States, -provided Great Britain did not interpose a _veto_ within six months -after receiving a copy of the draft treaty, and was absolutely -independent in concluding treaties with the neighbouring Orange Free -State. Again, Egypt possesses, since 1898, together with Great Britain -_condominium_[139] over the Soudan, which means that they exercise -conjointly sovereignty over this territory. Although Vassal States have -not the right to make war independently of their suzerain, Bulgaria, at -the time a Vassal State, nevertheless fought a war against the -full-Sovereign Servia in 1885, and Egypt conquered the Soudan conjointly -with Great Britain in 1898. - -[Footnote 138: See Westlake, Chapters, pp. 211-219; Westlake, I. pp. -41-43, and again Westlake in _The Law Quarterly Review_, XXVI. (1910), -pp. 312-319.--See also Lee-Warner, "The Native States of India" (1910), -pp. 254-279.] - -[Footnote 139: See below, [p] 171.] - -How could all these and other facts be explained, if Vassal States could -never for some small part be International Persons? - -Side by side with these facts stand, of course, other facts which show -that for the most part the Vassal State, even if it has some small -position of its own within the Family of Nations, is considered a mere -portion of the Suzerain State. Thus all international treaties concluded -by the Suzerain State are _ipso facto_ concluded for the vassal, if an -exception is not expressly mentioned or self-evident. Thus, again, war -of the suzerain is _ipso facto_ war of the vassal. Thus, thirdly, the -suzerain bears within certain limits a responsibility for actions of the -Vassal State. - -Under these circumstances it is generally admitted that the conception -of suzerainty lacks juridical precision, and experience teaches that -Vassal States do not remain half-Sovereign for long. They either shake -off suzerainty, as Roumania, Servia, and Montenegro did in 1878, and -Bulgaria[140] did in 1908, or they lose their half-Sovereignty through -annexation, as in the case of the South African Republic in 1901, or -through merger, as when the half-Sovereign Seignory of Kniephausen in -Germany merged in 1854 into its suzerain Oldenburg. - -[Footnote 140: As regards the position of Bulgaria while she was a -Vassal State under Turkish suzerainty, see Holland, "The European -Concert in the Eastern Question" (1885), pp. 277-307, and Nedjmidin, -"Voelkerrechtliche Entwicklung Bulgariens" (1908).] - -Vassal States of importance which are for some parts International -Persons are, at present, Egypt,[141] and Crete.[142] They are both -under Turkish suzerainty, although Egypt is actually under the -administration of Great Britain. Samos,[143] which some writers consider -a Vassal State under Turkish suzerainty, is not half-Sovereign, but -enjoys autonomy to a vast degree. - -[Footnote 141: See Holland, "The European Concert in the Eastern -Question" (1885), pp. 89-205; Gruenau, "Die staats- und voelkerrechtliche -Stellung Aegyptens" (1903); Cocheris, "Situation internationale de -l'Egypte et du Soudan" (1903); Freycinet, "La question d'Egypte" (1905); -Moret in R.J. XIV. (1907), pp. 405-416; Lamba in R.G. XVII. (1910), pp. -36-55. In the case of the "Charkieh," 1873, L.R. 4 Adm. and Eccl. 59, -the Court refused to acknowledge the half-sovereignty of Egypt; see -Phillimore, I. [p] 99.] - -[Footnote 142: See Streit in R.G. X. (1903), pp. 399-417.] - -[Footnote 143: See Albrecht in Z.V. I. (1907), pp. 56-112.] - - -VII - -STATES UNDER PROTECTORATE - - Hall, [p][p] 4 and 38*--Westlake, I. pp. 22-24--Lawrence, [p] - 39--Phillimore, I. 75-82--Twiss, I. [p][p] 22-36--Taylor, [p][p] - 134-139--Wheaton, [p][p] 34-36--Moore, I. [p] 14--Bluntschli, [p] - 78--Hartmann, [p] 9--Heffter, [p][p] 19 and 22--Holtzendorff in - Holtzendorff, II. pp. 98-117--Gareis, [p] 15--Liszt, [p] 6--Ullmann, [p] - 26--Bonfils, Nos. 176-187--Despagnet, Nos. 130-136--Merignhac, II. - pp. 180-220--Pradier-Fodere, I. Nos. 94-108--Nys, I. pp. - 364-366--Rivier, I. [p] 4--Calvo, I. [p][p] 62-65--Fiore, I. [p] 341, and - Code, Nos. 111-118--Martens, I. [p][p] 60-61--Pillet in R.G. II. - (1895), pp. 583-608--Heilborn, "Das voelkerrechtliche Protectorat" - (1891)--Engelhardt, "Les Protectorats, &c." (1896)--Gairal, "Le - protectorat international" (1896)--Despagnet, "Essai sur les - protectorats" (1896)--Boghitchevitch, "Halbsouveraenitaet" (1903). - -[Sidenote: Conception of Protectorate.] - -[p] 92. Legally and materially different from suzerainty is the relation -of protectorate between two States. It happens that a weak State -surrenders itself by treaty into the protection of a strong and mighty -State in such a way that it transfers the management[144] of all its -more important[145] international affairs to the protecting State. -Through such treaty an international union is called into existence -between the two States, and the relation between them is called -protectorate. The protecting State is internationally the superior of -the protected State, the latter has with the loss of the management of -its more important international affairs lost its full sovereignty and -is henceforth only a half-Sovereign State. Protectorate is, however, a -conception which, just like suzerainty, lacks exact juristic -precision,[146] as its real meaning depends very much upon the special -case. Generally speaking, protectorate may, again like suzerainty, be -called _a kind of international guardianship_. - -[Footnote 144: A treaty of protectorate must not be confounded with a -treaty of protection in which one or more strong States promise to -protect a weak State without absorbing the international relations of -the latter.] - -[Footnote 145: That the admittance of Consuls belongs to these affairs -became apparent in 1906, when Russia, after some hesitation, finally -agreed upon Japan, and not Korea, granting the _exequatur_ to the -Consul-general appointed by Russia for Korea, which was then a State -under Japanese protectorate. See below, [p] 427.] - -[Footnote 146: It is therefore of great importance that the parties -should make quite clear the meaning of a clause which is supposed to -stipulate a protectorate. Thus art. 17 of the Treaty of Friendship and -Commerce between Italy and Abyssinia, signed at Uccialli on May 2, -1889--see Martens, N.R.G. 2nd Ser. XVIII. p. 697--was interpreted by -Italy as establishing a protectorate over Abyssinia, but the latter -refused to recognise it.] - -[Sidenote: International position of States under Protectorate.] - -[p] 93. The position of a State under protectorate within the Family of -Nations cannot be defined by a general rule, since it is the treaty of -protectorate which indirectly specialises it by enumerating the -reciprocal rights and duties of the protecting and the protected State. -Each case must therefore be treated according to its own merits. Thus -the question whether the protected State can conclude certain -international treaties and can send and receive diplomatic envoys, as -well as other questions, must be decided according to the terms of the -individual treaty of protectorate. In any case, recognition of the -protectorate on the part of third States is necessary to enable the -superior State to represent the protected State internationally. But it -is characteristic of the protectorate, in contradistinction to -suzerainty, that the protected State always has and retains for some -parts a position of its own within the Family of Nations, and that it is -always for some parts an International Person and a subject of -International Law. It is never in any respect considered a mere portion -of the superior State. It is, therefore, not necessarily a party in a -war[147] of the superior State against a third, and treaties concluded -by the superior State are not _ipso facto_ concluded for the protected -State. And, lastly, it can at the same time be under the protectorate of -two different States, which, of course, must exercise the protectorate -conjointly. - -[Footnote 147: This was recognised by the English Prize Courts during -the Crimean War with regard to the Ionian Islands, which were then still -under British protectorate; see the case of the Ionian Ships, 2 Spinks -212, and Phillimore, I. [p] 77.] - -In Europe there are at present only two very small States under -protectorate--namely, the republic of Andorra, under the joint -protectorate of France and Spain,[148] and the republic of San Marino, -an enclosure of Italy, which was formerly under the protectorate of the -Papal States and is now under that of Italy. The Principality of Monaco, -which was under the protectorate, first of Spain until 1693, afterwards -of France until 1815, and then of Sardinia, has now, through custom, -become a full-Sovereign State, since Italy has never[149] exercised the -protectorate. The Ionian Islands, which were under British protectorate -from 1815, merged into the Kingdom of Greece in 1863. - -[Footnote 148: This protectorate is exercised for Spain by the Bishop of -Urgel. As regards the international position of Andorra, see Vilar, -"L'Andorre" (1905).] - -[Footnote 149: This is a clear case of _desuetudo_.] - -[Sidenote: Protectorates outside the Family of Nations.] - -[p] 94. Outside Europe there are numerous States under the protectorate of -European States, but all of them are non-Christian States of such a -civilisation as would not admit them to full membership of the Family of -Nations, apart from the protectorate under which they are now. And it -may therefore be questioned whether they have any real position within -the Family of Nations at all. As the protectorate over them is -recognised by third States, the latter are legally prevented from -exercising any political influence in these protected States, and, -failing special treaty rights, they have no right to interfere if the -protecting State annexes the protected State and makes it a mere colony -of its own, as, for instance, France did with Madagascar in 1896. -Protectorates of this kind are actually nothing else than the first step -to annexation.[150] Since they are based on treaties with real States, -they cannot in every way be compared with the so-called protectorates -over African tribes which European States acquire through a treaty with -the chiefs of these tribes, and by which the respective territory is -preserved for future occupation on the part of the so-called -protector.[151] But actually they always lead to annexation, if the -protected State does not succeed in shaking off by force the -protectorate, as Abyssinia did in 1896 when she shook off the pretended -Italian protectorate. - -[Footnote 150: Examples of such non-Christian States under protectorate -are Zanzibar under Great Britain and Tunis under France.] - -[Footnote 151: See below, [p] 226, and Perrinjaquet in R.G. XVI. (1909), -pp. 316-367.] - - -VIII - -NEUTRALISED STATES - - Westlake, I. pp. 27-30--Lawrence, [p][p] 43 and 225--Taylor, [p] - 133--Moore, I. [p] 12--Bluntschli, [p] 745--Heffter, [p] - 145--Holtzendorff in Holtzendorff, II. pp. 643-646--Gareis, [p] - 15--Liszt, [p] 6--Ullmann, [p] 27--Bonfils, Nos. 348-369--Despagnet, - Nos. 137-146--Merignhac, II. pp. 56-65--Pradier-Fodere, II. Nos. - 1001-1015--Nys, I. pp. 379-398--Rivier, I. [p] 7--Calvo, IV. [p][p] - 2596-2610--Piccioni's "Essai sur la neutralite perpetuelle" (2nd - ed. 1902)--Regnault, "Des effets de la neutralite perpetuelle" - (1898)--Tswettcoff, "De la situation juridique des etats - neutralises" (1895)--Morand in R.G. I. (1894), pp. - 522-537--Hagerup in R.G. XII. (1909), pp. 577-602--Nys in R.I. 2nd - Ser. II. (1900), pp. 468-583, III. (1901), p. 15--Westlake in R.I. - 2nd Ser. III. (1901), pp. 389-397--Winslow in A.J. II. (1908), pp. - 366-386--Wicker in A.J. V. (1911), pp. 639-654. - -[Sidenote: Conception of Neutralised States.] - -[p] 95. A neutralised State is a State whose independence and integrity -are for all the future guaranteed by an international convention of the -Powers, under the condition that such State binds itself never to take -up arms against any other State except for defence against attack, and -never to enter into such international obligations as could indirectly -drag it into war. The reason why a State asks or consents to become -neutralised is that it is a weak State and does not want an active part -in international politics, being exclusively devoted to peaceable -developments of welfare. The reason why the Powers neutralise a weak -State may be a different one in different cases. The chief reasons have -been hitherto the balance of power in Europe and the interest in keeping -up a weak State as a so-called Buffer-State between the territories of -Great Powers. - -Not to be confounded with neutralisation of States is neutralisation of -parts of States,[152] of rivers, canals, and the like, which has the -effect that war cannot there be made and prepared. - -[Footnote 152: See below, Vol. II. [p] 72.] - -[Sidenote: Act and Condition of Neutralisation.] - -[p] 96. Without thereby becoming a neutralised State, every State can -conclude a treaty with another State and undertake the obligation to -remain neutral if such other State enters upon war. The act through -which a State becomes a neutralised State for all the future is always -an international treaty of the Powers between themselves and between the -State concerned, by which treaty the Powers guarantee collectively the -independence and integrity of the latter State. If all the Great Powers -do not take part in the treaty, those which do not take part in it must -at least give their tacit consent by taking up an attitude which shows -that they agree to the neutralisation, although they do not guarantee -it. In guaranteeing the permanent neutrality of a State the contracting -Powers enter into the obligation not to violate on their part the -independence of the neutral State and to prevent other States from such -violation. But the neutral State becomes, apart from the guaranty, in -no way dependent upon the guarantors, and the latter gain no influence -whatever over the neutral State in matters which have nothing to do with -the guaranty. - -The condition of the neutralisation is that the neutralised State -abstains from any hostile action, and further from any international -engagement which could indirectly[153] drag it into hostilities against -any other State. And it follows from the neutralisation that the -neutralised State can, apart from frontier regulations, neither cede a -part of its territory nor acquire new parts of territory without the -consent of the Powers.[154] - -[Footnote 153: It was, therefore, impossible for Belgium, which was a -party to the treaty that neutralised Luxemburg in 1867, to take part in -the guarantee of this neutralisation. See article 2 of the Treaty of -London of May 11, 1867: "sous la sanction de la garantie collective des -puissances signataires, a l'exception de la Belgique, qui est elle-meme -un etat neutre."] - -[Footnote 154: This is a much discussed and very controverted point. See -Descamps, "La Neutralite de la Belgique" (1902), pp. 508-527; Fauchille -in R.G. II. (1895), pp. 400-439; Westlake in R.I. 2nd Ser. III. (1901), -p. 396; Graux in R.I. 2nd Ser. VII. (1905), pp. 33-52; Rivier, I. p. -172. See also below, [p] 215.] - -[Sidenote: International position of Neutralised States.] - -[p] 97. Since a neutralised State is under the obligation not to make war -against any other State, except when attacked, and not to conclude -treaties of alliance, guaranty, and the like, it is frequently -maintained that neutralised States are part-Sovereign only and not -International Persons of the same position within the Family of Nations -as other States. This opinion has, however, no basis if the real facts -and conditions of the neutralisation are taken into consideration. If -sovereignty is nothing else than supreme authority, a neutralised State -is as fully Sovereign as any not neutralised State. It is entirely -independent outside as well as inside its borders, since independence -does not at all mean boundless liberty of action.[155] Nobody maintains -that the guaranteed protection of the independence and integrity of the -neutralised State places this State under the protectorate or any other -kind of authority of the guarantors. And the condition of the -neutralisation to abstain from war, treaties of alliance, and the like, -contains restrictions which do in no way destroy the full sovereignty of -the neutralised State. Such condition has the consequence only that the -neutralised State exposes itself to an intervention by right, and loses -the guaranteed protection in case it commits hostilities against another -State, enters into a treaty of alliance, and the like. Just as a -not-neutralised State which has concluded treaties of arbitration with -other States to settle all conflicts between one another by arbitration -has not lost part of its sovereignty because it has thereby to abstain -from arms, so a neutralised State has not lost part of its sovereignty -through entering into the obligation to abstain from hostilities and -treaties of alliance. This becomes quite apparent when it is taken into -consideration that a neutralised State not only can conclude treaties of -all kinds, except treaties of alliance, guarantee, and the like, but can -also have an army and navy[156] and can build fortresses, as long as -this is done with the purpose of preparing defence only. Neutralisation -does not even exercise an influence upon the rank of a State. Belgium, -Switzerland, and Luxemburg are States with royal honours and do not rank -behind Great Britain or any other of the guarantors of their -neutralisation. Nor is it denied that neutralised States, in spite of -their weakness and comparative unimportance, can nevertheless play an -important part within the Family of Nations. Although she has no voice -where history is made by the sword, Switzerland has exercised great -influence with regard to several points of progress in International -Law. Thus the Geneva Convention owes its existence to the initiative of -Switzerland. The fact that a permanently neutralised State is in many -questions a disinterested party makes such State fit to take the -initiative where action by a Great Power would create suspicion and -reservedness on the part of other Powers. - -[Footnote 155: See below, [p] 126.] - -[Footnote 156: The case of Luxemburg, which became neutralised under the -condition not to keep an armed force with the exception of a police, is -an anomaly.] - -But neutralised States are and must always be an exception. The Family -and the Law of Nations could not be what they are if ever the number of -neutralised States should be much increased. It is neither in the -interest of the Law of Nations, nor in that of humanity, that all the -small States should become neutralised, as thereby the political -influence of the few Great Powers would become still greater than it -already is. The neutralised States still in existence--namely, -Switzerland, Belgium, and Luxemburg--are a product of the nineteenth -century only, and it remains to be seen whether neutralisation can stand -the test of history.[157] - -[Footnote 157: The fate of the Republic of Cracow, which was created an -independent State under the joint protection of Austria, Prussia, and -Russia by the Vienna Congress in 1815, and permanently neutralised, but -which was annexed by Austria in 1846 (see Nys, I. pp. 383-385), cannot -be quoted as an example that neutralised States have no durability. This -annexation was only the last act in the drama of the absorption of -Poland by her neighbours. As regards the former Congo Free State, see -below, [p] 101.] - -[Sidenote: Switzerland.] - -[p] 98. The Swiss Confederation,[158] which was recognised by the -Westphalian Peace of 1648, has pursued a traditional policy of -neutrality since that time. During the French Revolution and the -Napoleonic Wars, however, she did not succeed in keeping up her -neutrality. French intervention brought about in 1803 a new -Constitution, according to which the single cantons ceased to be -independent States and Switzerland turned from a Confederation of States -into the simple State of the Helvetic Republic, which was, moreover, -through a treaty of alliance linked to France. It was not till 1813 that -Switzerland became again a Confederation of States, and not till 1815 -that she succeeded in becoming permanently neutralised. On March 20, -1815, at the Congress at Vienna, Great Britain, Austria, France, -Portugal, Prussia, Spain, and Russia signed the declaration in which the -permanent neutrality of Switzerland was recognised and collectively -guaranteed, and on May 27, 1815, Switzerland acceded to this -declaration. Article 84 of the Act of the Vienna Congress confirmed this -declaration, and an Act, dated November 20, 1815, of the Powers -assembled at Paris after the final defeat of Napoleon recognised it -again.[159] Since that time Switzerland has always succeeded in keeping -up her neutrality. She has built fortresses and organised a strong army -for that purpose, and in January 1871, during the Franco-German War, she -disarmed a French army of more than 80,000 men who had taken refuge on -her territory, and guarded them till after the war. - -[Footnote 158: See Schweizer, "Geschichte der schweizerischen -Neutralitaet," 2 vols. (1895).] - -[Footnote 159: See Martens, N.R. II. pp. 157, 173, 419, 740.] - -[Sidenote: Belgium.] - -[p] 99. Belgium[160] became neutralised from the moment she was recognised -as an independent State in 1831. The Treaty of London, signed on -November 15, 1831, by Great Britain, Austria, Belgium, France, Prussia, -and Russia, stipulates in its article 7 at the same time the -independence and the permanent neutrality of Belgium, and in its article -25 the guaranty of the signatory five Great Powers.[161] And the -guaranty was renewed in article 1 of the Treaty of London of April 19, -1839,[162] to which the same Powers are parties, and which is the final -treaty concerning the separation of Belgium from the Netherlands. - -[Footnote 160: See Descamps, "La Neutralite de la Belgique" (1902).] - -[Footnote 161: See Martens, N.R. XI. pp. 394 and 404.] - -[Footnote 162: See Martens, N.R. XVI. p. 790.] - -Belgium has, just like Switzerland, also succeeded in keeping up her -neutrality. She, too, has built fortresses and possesses a strong army. - -[Sidenote: Luxemburg.] - -[p] 100. The Grand Duchy of Luxemburg[163] was since 1815 in personal -union with the Netherlands, but at the same time a member of the -Germanic Confederation, and Prussia had since 1856 the right to keep -troops in the fortress of Luxemburg. In 1866 the Germanic Confederation -came to an end, and Napoleon III. made efforts to acquire Luxemburg by -purchase from the King of Holland, who was at the same time Grand Duke -of Luxemburg. As Prussia objected to this, it seemed advisable to the -Powers to neutralise Luxemburg. A Conference met in London, at which -Great Britain, Austria, Belgium, France, Holland and Luxemburg, Italy, -Prussia, and Russia were represented, and on May 11, 1867, a treaty was -signed for the purpose of the neutralisation, which is stipulated and -collectively guaranteed by all the signatory Powers, Belgium as a -neutralised State herself excepted, by article 2.[164] - -[Footnote 163: See Wompach, "Le Luxembourg neutre" (1900).] - -[Footnote 164: See Martens, N.R.G. XVIII. p. 448.] - -The neutralisation took place, however, under the abnormal condition -that Luxemburg is not allowed to keep any armed force, with the -exception of a police for the maintenance of safety and order, nor to -possess any fortresses. Under these circumstances Luxemburg herself can -do nothing for the defence of her neutrality, as Belgium and Switzerland -can. - -[Sidenote: The former Congo Free State.] - -[p] 101. The former Congo Free State,[165] which was recognised as an -independent State by the Berlin Congo Conference[166] of 1884-1885, was -a permanently neutralised State from 1885-1908, but its neutralisation -was imperfect in so far as it was not guaranteed by the Powers. This -fact is explained by the circumstances under which the Congo Free State -attained its neutralisation. Article 10 of the General Act of the Congo -Conference of Berlin stipulates that the signatory Powers shall respect -the neutrality of any territory within the Congo district, provided the -Power then or hereafter in possession of the territory proclaims its -neutrality. Accordingly, when the Congo Free State was recognised by the -Congress of Berlin, the King of the Belgians, as the sovereign of the -Congo State, declared[167] it permanently neutral, and this declaration -was notified to and recognised by the Powers. Since the Congo Conference -did not guarantee the neutrality of the territories within the Congo -district, the neutralisation of the Congo Free State was not guaranteed -either. In 1908[168] the Congo Free State merged by cession into -Belgium. - -[Footnote 165: Moynier, "La fondation de l'Etat independant du Congo" -(1887); Hall, [p] 26; Westlake, I. p., 30; Navez, "Essai historique sur -l'Etat Independant du Congo," Vol. I. (1905); Reeves in A.J. III. -(1909), pp. 99-118.] - -[Footnote 166: See Protocol 9 of that Conference in Martens, N.R.G. 2nd -Ser. X. p. 353.] - -[Footnote 167: See Martens, N.R.G. 2nd Ser. XVI. p. 585.] - -[Footnote 168: See Martens, N.R.G. 3rd Ser. II. pp. 101, 106, 109, and -Delpech and Marcaggi in R.G. XVIII. (1911), pp. 105-163. The question is -doubtful, whether the guarantee of the neutrality of Belgium extends now -to territory of the former Congo Free State _ipso facto_ by its merger -into Belgium.] - - -IX - -NON-CHRISTIAN STATES - - Westlake, I. p. 40--Phillimore, I. [p][p] 27-33--Bluntschli, [p][p] - 1-16--Heffter, [p] 7--Gareis, [p] 10--Rivier, I. pp. 13-18--Bonfils, - No. 40--Martens, [p] 41--Nys, I. pp. 122-125--Westlake, Chapters, - pp. 114-143. - -[Sidenote: No essential difference between Christian and other States.] - -[p] 102. It will be remembered from the previous discussion of the -dominion[169] of the Law of Nations that this dominion extends beyond -the Christian and includes now the Mahometan State of Turkey and the -Buddhistic State of Japan. As all full-Sovereign International Persons -are equal to one another, no essential difference exists within the -Family of Nations between Christian and non-Christian States. That -foreigners residing in Turkey are still under the exclusive jurisdiction -of their consuls, is an anomaly based on a restriction on territorial -supremacy arising partly from custom and partly from treaties. If Turkey -could ever succeed, as Japan did, in introducing such reforms as would -create confidence in the impartiality of her Courts of Justice, this -restriction would certainly be abolished. - -[Footnote 169: See above, [p] 28.] - -[Sidenote: International position of non-Christian States except Turkey -and Japan.] - -[p] 103. Doubtful is the position of all non-Christian States except -Turkey and Japan, such as China, Morocco, Siam, Persia, and further -Abyssinia, although the latter is a Christian State, and although China, -Persia, and Siam took part in the Hague Peace Conferences of 1899 and -1907. Their civilisation is essentially so different from that of the -Christian States that international intercourse with them of the same -kind as between Christian States has been hitherto impossible. And -neither their governments nor their populations are at present able to -fully understand the Law of Nations and to take up an attitude which is -in conformity with all the rules of this law. There should be no doubt -that these States are not International Persons of the same kind and the -same position within the Family of Nations as Christian States. But it -is equally wrong to maintain that they are absolutely outside the Family -of Nations, and are for no part International Persons. Since they send -and receive diplomatic envoys and conclude international treaties, the -opinion is justified that such States are International Persons only in -some respects--namely, those in which they have expressly or tacitly -been received into the Family of Nations. When Christian States begin -such intercourse with these non-Christian States as to send diplomatic -envoys to them and receive their diplomatic envoys, and when they enter -into treaty obligations with them, they indirectly declare that they are -ready to recognise them for these parts as International Persons and -subjects of the Law of Nations. But for other parts such non-Christian -States remain as yet outside the circle of the Family of Nations, -especially with regard to war, and they are for those parts treated by -the Christian Powers according to discretion. This condition of things -will, however, not last very long. It may be expected that with the -progress of civilisation these States will become sooner or later -International Persons in the full sense of the term. They are at present -in a state of transition, and some of them are the subjects of -international arrangements of great political importance. Thus by the -Treaty of London of December 13, 1906, Great Britain, France, and Italy -agree to co-operate in maintaining the independence and integrity of -Abyssinia,[170] and the General Act of the Conference of Algeciras of -April 7, 1906,[171] signed by Great Britain, Germany, Austria-Hungary, -Belgium, Spain, the United States of America, France, Italy, Holland, -Portugal, Russia, Sweden, and Morocco herself, endeavours to suppress -anarchy in Morocco and to introduce reforms in its internal -administration. This Act,[172] which recognises, on the one hand, the -independence and integrity of Morocco, and, on the other, equal -commercial facilities in that country for all nations, contains:--(1) A -Declaration concerning the organisation of the Moroccan police; (2) -Regulations concerning the detection and suppression of the illicit -trade in arms; (3) An Act of concession for a Moorish State Bank; (4) A -Declaration concerning an improved yield of the taxes and the creation -of new sources of revenue; (5) Regulations respecting customs and the -suppression of fraud and smuggling; (6) A Declaration concerning the -public services and public works. - -[Footnote 170: See Martens, N.R.G. 2nd Ser. XXXV. p. 556.] - -[Footnote 171: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.] - -[Footnote 172: It has been mentioned above, p. 76, that the Moroccan -question has been reopened, and that fresh negotiations are taking place -for its settlement.] - - -X - -THE HOLY SEE - - Hall, [p] 98--Westlake, I. pp. 37-39--Phillimore, I. [p][p] - 278-440--Twiss, I. [p][p] 206-207--Taylor, [p][p] 277, 278, 282--Wharton, - I. [p] 70, p. 546--Moore, I. [p] 18--Bluntschli, [p] 172--Heffter, [p][p] - 40-41--Geffcken in Holtzendorff, II. pp. 151-222--Gareis, [p] - 13--Liszt, [p] 5--Ullmann, [p] 28--Bonfils, Nos. 370-396--Despagnet, - Nos. 147-164--Merignhac, II. pp. 119-153--Nys, II. pp. - 297-324--Rivier, I. [p] 8--Fiore, I. Nos. 520, 521--Martens, I. [p] - 84--Fiore, "Della condizione giuridica internazionale della chiesa - e del Papa" (1887)--Bombard, "Le Pape et le droit des gens" - (1888)--Imbart-Latour, "La papaute en droit international" - (1893)--Olivart, "Le Pape, les etats de l'eglise et l'Italie" - (1897)--Chretien in R.G. VI. (1899) pp. 281-291--Bompart in R.G. - VII. (1900), pp. 369-387--Higgins in _The Journal of the Society - for Comparative Legislation_, New Series, IX. (1907), pp. 252-264. - -[Sidenote: The former Papal States.] - -[p] 104. When the Law of Nations began to grow up among the States of -Christendom, the Pope was the monarch of one of those States--namely, -the so-called Papal States. This State owed its existence to -Pepin-le-Bref and his son Charlemagne, who established it in gratitude -to the Popes Stephen III. and Adrian I., who crowned them as Kings of -the Franks. It remained in the hands of the Popes till 1798, when it -became a republic for about three years. In 1801 the former order of -things was re-established, but in 1809 it became a part of the -Napoleonic Empire. In 1814 it was re-established, and remained in -existence till 1870, when it was annexed to the Kingdom of Italy. -Throughout the existence of the Papal States, the Popes were monarchs -and, as such, equals of all other monarchs. Their position was, however, -even then anomalous, as their influence and the privileges granted to -them by the different States were due, not alone to their being monarchs -of a State, but to their being the head of the Roman Catholic Church. -But this anomaly did not create any real difficulty, since the -privileges granted to the Popes existed within the province of -precedence only. - -[Sidenote: The Italian Law of Guaranty.] - -[p] 105. When, in 1870, Italy annexed the Papal States and made Rome her -capital, she had to undertake the task of creating a position for the -Holy See and the Pope which was consonant with the importance of the -latter to the Roman Catholic Church. It seemed impossible that the Pope -should become an ordinary Italian subject and that the Holy See should -be an institution under the territorial supremacy of Italy. For many -reasons no alteration was desirable in the administration by the Holy -See of the affairs of the Roman Catholic Church or in the position of -the Pope as the inviolable head of that Church. To meet the case the -Italian Parliament passed an Act regarding the guaranties granted to the -Pope and the Holy See, which is commonly called the "Law of Guaranty." -According to this the position of the Pope and the Holy See is in Italy -as follows:-- - -The person of the Pope is sacred and inviolable (article 1), although he -is subjected to the Civil Courts of Italy.[173] An offence against his -person is to be punished in the same way as an offence against the King -of Italy (article 2). He enjoys all the honours of a sovereign, retains -the privileges of precedence conceded to him by Roman Catholic monarchs, -has the right to keep an armed body-guard of the same strength as before -the annexation for the safety of his person and of his palaces (article -3), and receives an allowance of 3,225,000 francs (article 4). The -Vatican, the seat of the Holy See, and the palaces where a conclave for -the election of a new Pope or where an Oecumenical Council meets, are -inviolable, and no Italian official is allowed to enter them without -consent of the Holy See (articles 5-8). The Pope is absolutely free in -performing all the functions connected with his mission as head of the -Roman Catholic Church, and so are his officials (articles 9 and 10). -The Pope has the right to send and to receive envoys, who enjoy all the -privileges of the diplomatic envoys sent and received by Italy (article -11). The freedom of communication between the Pope and the entire Roman -Catholic world is recognised, and the Pope has therefore the right to a -post and telegraph office of his own in the Vatican or any other place -of residence and to appoint his own post-office clerks (article 12). -And, lastly, the colleges and other institutions of the Pope for the -education of priests in Rome and the environments remain under his -exclusive supervision, without any interference on the part of the -Italian authorities. - -[Footnote 173: See Bonfils, No. 379.] - -No Pope has as yet recognised this Italian Law of Guaranty, nor had -foreign States an opportunity of giving their express consent to the -position of the Pope in Italy created by that law. But practically -foreign States as well as the Popes themselves, although the latter have -never ceased to protest against the condition of things created by the -annexation of the Papal States, have made use of the provisions[174] of -that law. Several foreign States send side by side with their diplomatic -envoys accredited to Italy special envoys to the Pope, and the latter -sends envoys to several foreign States. - -[Footnote 174: But the Popes have hitherto never accepted the allowance -provided by the Law of Guaranty.] - -[Sidenote: International position of the Holy See and the Pope.] - -[p] 106. The Law of Guaranty is not International but Italian Municipal -Law, and the members of the Family of Nations have hitherto not made any -special arrangements with regard to the International position of the -Holy See and the Pope. And, further, there can be no doubt that since -the extinction of the Papal States the Pope is no longer a monarch whose -sovereignty is derived from his position as the head of a State. For -these reasons many writers[175] maintain that the Holy See and the Pope -have no longer any international position whatever according to the Law -of Nations, since States only and exclusively are International Persons. -But if the facts of international life and the actual condition of -things in every-day practice are taken into consideration, this opinion -has no basis to stand upon. Although the Holy See is not a State, the -envoys sent by her to foreign States are treated by the latter on the -same footing with diplomatic envoys as regards exterritoriality, -inviolability, and ceremonial privileges, and those foreign States which -send envoys to the Holy See claim for them from Italy all the privileges -and the position of diplomatic envoys. Further, although the Pope is no -longer the head of a State, the privileges due to the head of a -monarchical State are still granted to him by foreign States. Of course, -through this treatment the Holy See does not acquire the character of an -International Person, nor does the Pope thereby acquire the character of -a head of a monarchical State. But for some points the Holy See is -actually treated as though she were an International Person, and the -Pope is treated actually in every point as though he were the head of a -monarchical State. It must therefore be maintained that by custom, by -tacit consent of the members of the Family of Nations, the Holy See has -a _quasi_ international position. This position allows her to claim -against all the States treatment on some points as though she were an -International Person, and further to claim treatment of the Pope in -every point as though he were the head of a monarchical State. But it -must be emphasised that, although the envoys sent and received by the -Holy See must be treated as diplomatic envoys,[176] they are not such in -fact, for they are not agents for international affairs of States, but -exclusively agents for the affairs of the Roman Catholic Church. And it -must further be emphasised that the Holy See cannot conclude -international treaties or claim a vote at international congresses and -conferences. The so-called Concordats--that is, treaties between the -Holy See and States with regard to matters of the Roman Catholic -Church--are not international treaties, although analogous treatment is -usually given to them. Even formerly, when the Pope was the head of a -State, such Concordats were not concluded with the Papal States, but -with the Holy See and the Pope as representatives of the Roman Catholic -Church. - -[Footnote 175: Westlake, I. p. 38, now joins the ranks of these -writers.] - -[Footnote 176: The case of Montagnini, which occurred in December 1906, -cannot be quoted against this assertion, for Montagnini was not at the -time a person enjoying diplomatic privileges. Diplomatic relations -between France and the Holy See had come to an end in 1905 by France -recalling her envoy at the Vatican and at the same time sending the -passports to Lorenzelli, the Papal Nuncio in Paris. Montagnini, who -remained at the nunciature in Paris, did not possess any diplomatic -character after the departure of the Nuncio. Neither his arrest and his -expulsion in December 1906, nor the seizure of his papers at the -nunciature amounted therefore to an international delinquency on the -part of the French Government. The papers left by the former Papal -Nuncio Lorenzelli were not touched and remained in the archives of the -former nunciature until the Austrian ambassador in Paris, in February -1907, asked the French Foreign Office to transfer them to him for the -purpose of handing them on to the Holy See. It must be specially -mentioned that the seizure of his papers and the arrest and expulsion of -Montagnini took place because he conspired against the French Government -by encouraging the clergy to refuse obedience to French laws. And it -must further be mentioned that Lorenzelli, when he left the nunciature, -did not, contrary to all precedent, place the archives of the nunciature -under seals and confide them to the protection of another diplomatic -envoy in Paris. Details of the case are to be found in R.I. 2nd Ser. IX. -(1907), pp. 60-66, and R.G. XIV. (1907), pp. 175-186.] - -[Sidenote: Violation of the Holy See and the Pope.] - -[p] 107. Since the Holy See has no power whatever to protect herself and -the person of the Pope against violations, the question as to the -protection of the Holy See and the person of the Pope arises. I believe -that, since the present international position of the Holy See rests on -the tacit consent of the members of the Family of Nations, many a Roman -Catholic Power would raise its voice in case Italy or any other State -should violate the Holy See or the person of the Pope, and an -intervention for the purpose of protecting either of them would have the -character of an intervention by right. Italy herself would certainly -make such a violation by a foreign Power her own affair, although she -has no more than any other Power the legal duty to do so, and although -she is not responsible to other Powers for violations of the Personality -of the latter by the Holy See and the Pope. - - -XI - -INTERNATIONAL PERSONS OF THE PRESENT DAY - -[Sidenote: European States.] - -[p] 108. All the seventy-four European States are, of course, members of -the Family of Nations. They are the following: - -Great Powers are: - - Austria-Hungary. - France. - Germany. - Great Britain. - Italy. - Russia. - -Smaller States are: - - Bulgaria. - Denmark. - Greece. - Holland. - Montenegro. - Norway. - Portugal. - Roumania. - Servia. - Spain. - Sweden. - Turkey. - -Very small, but nevertheless full-Sovereign, States are: - - Monaco and Lichtenstein. - -Neutralised States are: - - Switzerland, Belgium, and Luxemburg. - -Half-Sovereign States are: - - Andorra (under the protectorate of France and Spain). - San Marino (under the protectorate of Italy). - Crete (under the suzerainty of Turkey). - -Part-Sovereign States are: - -(_a_) Member-States of Germany: - - Kingdoms: Prussia, Bavaria, Saxony, Wuertemberg. - - Grand-Duchies: Baden, Hesse, Mecklenburg-Schwerin, - Mecklenburg-Strelitz, Oldenburg. - - Dukedoms: Anhalt, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha, - Saxe-Meiningen, Saxe-Weimar. - - Principalities: Reuss Elder Line, Reuss Younger Line, Lippe, - Schaumburg-Lippe, Schwarzburg-Rudolstadt, - Schwarzburg-Sondershausen Waldeck. - - Free Towns are: Bremen, Luebeck, Hamburg. - -(_b_) Member-States of Switzerland: - - Zurich, Berne, Lucerne, Uri, Schwyz, Unterwalden (ob und nid dem - Wald), Glarus, Zug, Fribourg, Soleure, Basle (Stadt und - Landschaft), Schaffhausen, Appenzell (beider Rhoden), St. Gall, - Grisons, Aargau, Thurgau, Tessin, Vaud, Valais, Neuchatel, Geneva. - -[Sidenote: American States.] - -[p] 109. In America there are twenty-one States which are members of the -Family of Nations, but it must be emphasised that the member-States of -the five Federal States on the American continent, although they are -part-Sovereign, have no footing within the Family of Nations, because -the American Federal States, in contradistinction to Switzerland and -Germany, absorb all possible international relations of their -member-States. - -In North America there are: - - The United States of America. - The United States of Mexico. - -In Central America there are: - - Costa Rica. - Cuba. - San Domingo. - Guatemala. - Hayti. - Honduras. - Nicaragua. - Panama (since 1903). - San Salvador. - -In South America there are: - - The United States of Argentina. - Bolivia. - The United States of Brazil. - Chili. - Colombia. - Ecuador. - Paraguay. - Peru. - Uruguay. - The United States of Venezuela. - -[Sidenote: African States.] - -[p] 110. In Africa the Negro Republic of Liberia is the only real and full -member of the Family of Nations. Egypt and Tunis are half-Sovereign, the -one under Turkish suzerainty, the other under French protectorate. -Morocco and Abyssinia are both full-Sovereign States, but for some parts -only within the Family of Nations. The Soudan has an exceptional -position; being under the _condominium_ of Great Britain and Egypt, a -footing of its own within the Family of Nations the Soudan certainly has -not. - -[Sidenote: Asiatic States.] - -[p] 111. In Asia only Japan is a full and real member of the Family of -Nations. Persia, China, Siam, Tibet, and Afghanistan are for some parts -only within that family. - - - - -CHAPTER II - -POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS - - -I - -INTERNATIONAL PERSONALITY - - Vattel, I. [p][p] 13-25--Hall, [p] 7--Westlake, I. pp. - 293-296--Lawrence, [p] 57--Phillimore, I. [p][p] 144-147--Twiss, I. [p] - 106--Wharton, [p] 60--Moore, I. [p] 23--Bluntschli, [p][p] - 64-81--Hartmann, [p] 15--Heffter, [p] 26--Holtzendorff in - Holtzendorff, II. pp. 47-51--Gareis, [p][p] 24-25--Liszt, [p] - 7--Ullmann, [p] 38--Bonfils, Nos. 235-241--Despagnet, Nos. - 165-166--Nys, II. pp. 176-181--Pradier-Fodere, I. Nos. - 165-195--Merignhac, I. pp. 233-238--Rivier, I. [p] 19--Fiore, I. - Nos. 367-371--Martens, I. [p] 72--Fontenay, "Des droits et des - devoirs des Etats entre eux" (1888)--Pillet in R.G. V. (1898), - pp. 66 and 236, VI. (1899), p. 503--Cavaglieri, "I diritti - fondamentali degli Stati nella Societa Internazionale" (1906). - -[Sidenote: The so-called Fundamental Rights.] - -[p] 112. Until the last two decades of the nineteenth century all jurists -agreed that the membership of the Family of Nations includes so-called -fundamental rights for States. Such rights are chiefly enumerated as the -right of existence, of self-preservation, of equality, of independence, -of territorial supremacy, of holding and acquiring territory, of -intercourse, and of good name and reputation. It was and is maintained -that these fundamental rights are a matter of course and self-evident, -since the Family of Nations consists of Sovereign States. But no -unanimity exists with regard to the number, the names, and the contents -of these alleged fundamental rights. A great confusion exists in this -matter, and hardly two text-book writers agree in details with regard to -it. This condition of things has led to a searching criticism of the -whole matter, and several writers[177] have in consequence thereof -asked that the fundamental rights of States should totally disappear -from the treatises on the Law of Nations. I certainly agree with this. -Yet it must be taken into consideration that under the wrong heading of -fundamental rights a good many correct statements have been made for -hundreds of years, and that numerous real rights and duties are -customarily recognised which are derived from the very membership of the -Family of Nations. They are rights and duties which do not rise from -international treaties between a multitude of States, but which the -States customarily hold as International Persons, and which they grant -and receive reciprocally as members of the Family of Nations. They are -rights and duties connected with the position of the States within the -Family of Nations, and it is therefore only adequate to their importance -to discuss them in a special chapter under that heading. - -[Footnote 177: See Stoerk in Holtzendorff's "Encyklopaedie der -Rechtswissenschaft," 2nd ed. (1890), p. 1291; Jellinek, "System der -subjectiven oeffentlichen Rechte" (1892), p. 302; Heilborn, "System," p. -279; and others. The arguments of these writers have met, however, -considerable resistance, and the existence of fundamental rights of -States is emphatically defended by other writers. See, for instance, -Pillet, l.c., Liszt, [p] 7, and Gareis, [p][p] 24 and 25. Westlake, I. -p. 293, now joins the ranks of those writers who deny the existence of -fundamental rights.] - -[Sidenote: International Personality a Body of Qualities.] - -[p] 113. International Personality is the term which characterises fitly -the position of the States within the Family of Nations, since a State -acquires International Personality through its recognition as a member. -What it really means can be ascertained by going back to the basis[178] -of the Law of Nations. Such basis is the common consent of the States -that a body of legal rules shall regulate their intercourse with one -another. Now a legally regulated intercourse between Sovereign States is -only possible under the condition that a certain liberty of action is -granted to every State, and that, on the other hand, every State -consents to a certain restriction of action in the interest of the -liberty of action granted to every other State. A State that enters into -the Family of Nations retains the natural liberty of action due to it in -consequence of its sovereignty, but at the same time takes over the -obligation to exercise self-restraint and to restrict its liberty of -action in the interest of that of other States. In entering into the -Family of Nations a State comes as an equal to equals[179]; it demands -that certain consideration be paid to its dignity, the retention of its -independence, of its territorial and its personal supremacy. Recognition -of a State as a member of the Family of Nations contains recognition of -such State's equality, dignity, independence, and territorial and -personal supremacy. But the recognised State recognises in turn the same -qualities in other members of that family, and thereby it undertakes -responsibility for violations committed by it. All these qualities -constitute as a body the International Personality of a State, and -International Personality may therefore be said to be the fact, given by -the very membership of the Family of Nations, that equality, dignity, -independence, territorial and personal supremacy, and the responsibility -of every State are recognised by every other State. The States are -International Persons because they recognise these qualities in one -another and recognise their responsibility for violations of these -qualities. - -[Footnote 178: See above, [p] 12.] - -[Footnote 179: See above, [p] 14.] - -[Sidenote: Other Characteristics of the position of the States within -the Family of Nations.] - -[p] 114. But the position of the States within the Family of Nations is -not exclusively characterised by these qualities. The States make a -community because there is constant intercourse between them. -Intercourse is therefore a condition without which the Family of Nations -would not and could not exist. Again, there are exceptions to the -protection of the qualities which constitute the International -Personality of the States, and these exceptions are likewise -characteristic of the position of the States within the Family of -Nations. Thus, in time of war belligerents have a right to violate one -another's Personality in many ways; even annihilation of the vanquished -State, through subjugation after conquest, is allowed. Thus, further, in -time of peace as well as in time of war, such violations of the -Personality of other States are excused as are committed in -self-preservation or through justified intervention. And, finally, -jurisdiction is also important for the position of the States within the -Family of Nations. Intercourse, self-preservation, intervention, and -jurisdiction must, therefore, likewise be discussed in this chapter. - - -II - -EQUALITY, RANK, AND TITLES - - Vattel, II. [p][p] 35-48--Westlake, I. pp. 308-312--Lawrence, [p][p] - 112-119--Phillimore, I. [p] 147, II. [p][p] 27-43--Twiss, I. [p] - 12--Halleck, I. pp. 116-140--Taylor, [p] 160--Wheaton, [p][p] - 152-159--Moore, I. [p] 24--Bluntschli, [p][p] 81-94--Hartmann, [p] - 14--Heffter, [p][p] 27-28--Holtzendorff in Holtzendorff, II. pp. - 11-14--Ullmann, [p][p] 36 and 37--Bonfils, Nos. 272-278--Despagnet, - Nos. 167-171--Pradier-Fodere, II. Nos. 484-594--Merignhac, I. pp. - 310-320--Rivier, I. [p] 9--Nys, II. pp. 194-199, 208-218--Calvo, I. - [p][p] 210-259--Fiore, I. Nos. 428-451, and Code, Nos. - 388-421--Martens, I. [p][p] 70-71--Lawrence, Essays, pp. - 191-213--Westlake, Chapters, pp. 86-109--Huber, "Die Gleichheit - der Staaten" (1909)--Streit in R.I. 2nd Ser. II. pp. 5-27--Hicks - in A.J. II. (1908), pp. 530-561. - -[Sidenote: Legal Equality of States.] - -[p] 115. The equality before International Law of all member-States of the -Family of Nations is an invariable quality derived from their -International Personality.[180] Whatever inequality may exist between -States as regards their size, population, power, degree of civilisation, -wealth, and other qualities, they are nevertheless equals as -International Persons. This legal equality has three important -consequences: - -[Footnote 180: See above, [p][p] 14 and 113.] - -The first is that, whenever a question arises which has to be settled by -the consent of the members of the Family of Nations, every State has a -right to a vote, but to one vote only. - -The second consequence is that legally--although not politically--the -vote of the weakest and smallest State has quite as much weight as the -vote of the largest and most powerful. Therefore any alteration of an -existing rule or creation of a new rule of International Law by a -law-making treaty has legal validity for the signatory Powers and those -only who later on accede expressly or submit to it tacitly through -custom. - -The third consequence is that--according to the rule _par in parem non -habet imperium_--no State can claim jurisdiction over another -full-Sovereign State. Therefore, although foreign States can sue in -foreign Courts,[181] they cannot as a rule be sued[182] there, unless -they voluntarily accept[183] the jurisdiction of the Court concerned, or -have submitted themselves to such jurisdiction by suing in such foreign -Court.[184] - -[Footnote 181: See Phillimore, II. [p] 113 A; Nys, II. pp. 288-296; -Loening, "Die Gerichtsbarkeit ueber fremde Staaten und Souveraene" (1903); -and the following cases:--The United States _v._ Wagner (1867), L.R. 2 -Ch. App. 582; The Republic of Mexico _v._ Francisco de Arrangoiz, and -others, 11 Howard's Practice Reports 1 (quoted by Scott, "Cases on -International Law," 1902, p. 170); The Sapphire (1870), 11 Wallace, 164. -See also below, [p] 348.] - -[Footnote 182: See De Haber _v._ the Queen of Portugal (1851), 17 Ch. D. -171, and Vavasseur _v._ Krupp (1878), L.R. 9 Ch. D. 351.] - -[Footnote 183: See Prioleau _v._ United States, &c. (1866), L.R. 2 -Equity, 656.] - -[Footnote 184: Provided the cross-suit is really connected with the -claim in the action. As regards the German case of Hellfeld _v._ the -Russian Government, see Koehler in Z.V. IV. (1910), pp. 309-333; the -opinions of Laband, Meili, and Seuffert, _ibidem_, pp. 334-448; Baty in -_The Law Magazine and Review_, XXV. (1909-1910), p. 207; Wolfman in A.J. -IV. (1910), pp. 373-383.] - -To the rule of equality there are three exceptions:-- - -First, such States as can for some parts[185] only be considered -International Persons, are not equals of the full members of the Family -of Nations. - -[Footnote 185: See above, [p] 103.] - -Secondly, States under suzerainty and under protectorate which are -half-Sovereign and under the guardianship[186] of other States with -regard to the management of external affairs, are not equals of States -which enjoy full sovereignty. - -[Footnote 186: See above, [p][p] 91 and 93.] - -Thirdly, the part-sovereign member-States of a Federal State are not -equals of full-Sovereign States. - -It is, however, quite impossible to lay down a hard and fast general -rule concerning the amount of inequality between the equal and the -unequal States, as everything depends upon the circumstances and -conditions of the special case. - -[Sidenote: Political Hegemony of Great Powers.] - -[p] 116. Legal equality must not be confounded with political equality. -The enormous differences between States as regards their strength are -the result of a natural inequality which, apart from rank and titles, -finds its expression in the province of policy. Politically, States are -in no manner equals, as there is a difference between the Great Powers -and others. Eight States must at present be considered as Great -Powers--namely, Great Britain, Austria-Hungary, France, Germany, Italy, -and Russia in Europe, the United States in America, and Japan in Asia. -All arrangements made by the body of the Great Powers naturally gain the -consent of the minor States, and the body of the six Great Powers in -Europe is therefore called the European Concert. The Great Powers are -the leaders of the Family of Nations, and every progress of the Law of -Nations during the past is the result of their political hegemony, -although the initiative towards the progress was frequently taken by a -minor Power. - -But, however important the position and the influence of the Great -Powers may be, they are by no means derived from a legal basis or -rule.[187] It is nothing else than powerful example which makes the -smaller States agree to the arrangements of the Great Powers. Nor has a -State the character of a Great Power by law. It is nothing else than its -actual size and strength which makes a State a Great Power. Changes, -therefore, often take place. Whereas at the time of the Vienna Congress -in 1815 eight States--namely, Great Britain, Austria, France, Portugal, -Prussia, Spain, Sweden, and Russia--were still considered Great Powers, -their number decreased soon to five, when Portugal, Spain, and Sweden -lost that character. But the so-called Pentarchy of the remaining Great -Powers turned into a Hexarchy after the unification of Italy, because -the latter became at once a Great Power. The United States rose as a -Great Power out of the civil war in 1865, and Japan did the same out of -the war with China in 1895. Any day a change may take place and one of -the present Great Powers may lose its position, or one of the weaker -States may become a Great Power. It is a question of political -influence, and not of law, whether a State is or is not a Great Power. -Whatever large-sized State with a large population gains such strength -that its political influence must be reckoned with by the other Great -Powers, becomes a Great Power itself.[188] - -[Footnote 187: This is, however, maintained by a few writers. See, for -instance, Lorimer, I. p. 170; Lawrence, [p][p] 113 and 114; Westlake, I. -pp. 308, 309; and Pitt Cobbett, "Cases and Opinions on International -Law," 2nd ed. vol. I. (1909), p. 50.] - -[Footnote 188: In contradistinction to the generally recognised -political hegemony of the Great Powers, Lawrence ([p][p] 113 and 114) and -Taylor ([p] 69) maintain that the position of the Great Powers is -_legally_ superior to that of the smaller States, being a "Primacy" or -"Overlordship." This doctrine, which professedly seeks to abolish the -universally recognised rule of the equality of States, has no sound -basis, and confounds political with legal inequality. I cannot agree -with Lawrence when he says ([p] 114, p. 276):--"... in a system of rules -depending, like International Law, for their validity on general -consent, what is political is legal also, if it is generally accepted -and acted on." The Great Powers are _de facto_, by the smaller States, -recognised as political leaders, but this recognition does not involve -recognition of legal superiority.] - -[Sidenote: Rank of States.] - -[p] 117. Although the States are equals as International Persons, they are -nevertheless not equals as regards rank. The differences as regards rank -are recognised by International Law, but the legal equality of States -within the Family of Nations is thereby as little affected as the legal -equality of the citizens is within a modern State where differences in -rank and titles of the citizens are recognised by Municipal Law. The -vote of a State of lower rank has legally as much weight as that of a -State of higher rank. And the difference in rank nowadays no longer -plays such an important part as in the past, when questions of etiquette -gave occasion for much dispute. It was in the sixteenth and seventeenth -centuries that the rank of the different States was zealously discussed -under the heading of _droit de preseance_ or _questions de preseance_. -The Congress at Vienna of 1815 intended to establish an order of -precedence within the Family of Nations, but dropped this scheme on -account of practical difficulties. Thus the matter is entirely based on -custom, which recognises the following three rules: - -(1) The States are divided into two classes--namely, States with and -States without royal honours. To the first class belong Empires, -Kingdoms, Grand Duchies, and the great Republics such as France, the -United States of America, Switzerland, the South American Republics, and -others. All other States belong to the second class. The Holy See is -treated as though it were a State with royal honours. States with royal -honours have exclusively the right to send and receive diplomatic envoys -of the first class[189]--namely, ambassadors; and their monarchs address -one another as "brothers" in their official letters. States with royal -honours always precede other States. - -[Footnote 189: See below, [p] 365.] - -(2) Full-Sovereign States always precede those under suzerainty or -protectorate. - -(3) Among themselves States of the same rank do not precede one another. -Empires do not precede kingdoms, and since the time of Cromwell and the -first French Republic monarchies do not precede republics. But the Roman -Catholic States always concede precedence to the Holy See, and the -monarchs recognise among themselves a difference with regard to -ceremonials between emperors and kings on the one hand, and, on the -other, grand dukes and other monarchs. - -[Sidenote: The "Alternat."] - -[p] 118. To avoid questions of precedence, on signing a treaty, States of -the same rank observe a conventional usage which is called the -"Alternat." According to that usage the signatures of the signatory -States of a treaty alternate in a regular order or in one determined by -lot, the representative of each State signing first the copy which -belongs to his State. But sometimes that order is not observed, and the -States sign either in the alphabetical order of their names in French or -in no order at all (_pele-mele_). - -[Sidenote: Titles of States.] - -[p] 119. At the present time, States, save in a few exceptional instances, -have no titles, although formerly such titles did exist. Thus the former -Republic of Venice as well as that of Genoa was addressed as "Serene -Republic," and up to the present day the Republic of San Marino[190] is -addressed as "Most Serene Republic." Nowadays the titles of the heads of -monarchical States are in so far of importance to International Law as -they are connected with the rank of the respective States. Since States -are Sovereign, they can bestow any titles they like on their heads. -Thus, according to the German Constitution of 1871, the Kings of Prussia -have the title "German Emperor"; the Kings of England have since 1877 -borne the title "Emperor of India"; the Prince of Servia assumed in -1881, that of Roumania in 1882, that of Bulgaria in 1908, and that of -Montenegro in 1910, the title "King." But no foreign State is obliged to -recognise such a new title, especially when a higher rank would accrue -to the respective State in consequence of such a new title of its head. -In practice such recognition will regularly be given when the new title -really corresponds with the size and the importance of the respective -State.[191] Servia, Roumania, Bulgaria, and Montenegro had therefore no -difficulty in obtaining recognition as kingdoms. - -[Footnote 190: See Treaty Series, 1900, No. 9.] - -[Footnote 191: History, however, reports several cases where recognition -was withheld for a long time. Thus the title "Emperor of Russia," -assumed by Peter the Great in 1701, was not recognised by France till -1745, by Spain till 1759, nor by Poland till 1764. And the Pope did not -recognise the kingly title of Prussia, assumed in 1701, till 1786.] - -With the titles of the heads of States are connected predicates. -Emperors and Kings have the predicate "Majesty," Grand Dukes "Royal -Highness," Dukes "Highness," other monarchs "Serene Highness." The Pope -is addressed as "Holiness" (_Sanctitas_). Not to be confounded with -these predicates, which are recognised by the Law of Nations, are -predicates which originally were bestowed on monarchs by the Pope and -which have no importance for the Law of Nations. Thus the Kings of -France called themselves _Rex Christianissimus_ or "First-born Son of -the Church," the Kings of Spain have called themselves since 1496 _Rex -Catholicus_, the Kings of England since 1521 _Defensor Fidei_, the Kings -of Portugal since 1748 _Rex Fidelissimus_, the Kings of Hungary since -1758 _Rex Apostolicus_. - - -III - -DIGNITY - - Vattel, II. [p][p] 35-48--Lawrence, [p] 120--Phillimore, II. [p][p] - 27-43--Halleck, I. pp. 124-142--Taylor, [p] 162--Wheaton, [p] - 160--Bluntschli, [p][p] 82-83--Hartmann, [p] 15--Heffter, [p][p] 32, 102, - 103--Holtzendorff in Holtzendorff, II. pp. 64-69--Ullmann, [p] - 38--Bonfils, Nos. 279-284--Despagnet, Nos. 184-186--Moore, I. pp. - 310-320--Pradier-Fodere, II. Nos. 451-483--Rivier, I. pp. - 260-262--Nys, II. pp. 212-214--Calvo, III. [p][p] 1300-1302--Fiore, I. - Nos. 439-451--Martens, I. [p] 78. - -[Sidenote: Dignity a Quality.] - -[p] 120. The majority of text-book writers maintain that there is a -fundamental right of reputation and of good name belonging to every -State. Such a right, however, does not exist, because no duty -corresponding to it can be traced within the Law of Nations. Indeed, -the reputation of a State depends just as much upon behaviour as that of -every citizen within its boundaries. A State which has a corrupt -government and behaves unfairly and perfidiously in its intercourse with -other States will be looked down upon and despised, whereas a State -which has an uncorrupt government and behaves fairly and justly in its -international dealings will be highly esteemed. No law can give a good -name and reputation to a rogue, and the Law of Nations does not and -cannot give a right to reputation and good name to such a State as has -not acquired them through its attitude. There are some States--_nomina -sunt odiosa!_--which indeed justly possess a bad reputation. - -On the other hand, a State as a member of the Family of Nations -possesses dignity as an International Person. Dignity is a quality -recognised by other States, and it adheres to a State from the moment of -its recognition till the moment of its extinction, whatever behaviour it -displays. Just as the dignity of every citizen within a State commands a -certain amount of consideration on the part of fellow-citizens, so the -dignity of a State commands a certain amount of consideration on the -part of other States, since otherwise the different States could not -live peaceably in the community which is called the Family of Nations. - -[Sidenote: Consequences of the Dignity of States.] - -[p] 121. Since dignity is a recognised quality of States as International -Persons, all members of the Family of Nations grant reciprocally to one -another by custom certain rights and ceremonial privileges. These are -chiefly the rights to demand--that their heads shall not be libelled and -slandered; that their heads and likewise their diplomatic envoys shall -be granted exterritoriality and inviolability when abroad, and at home -and abroad in the official intercourse with representatives of foreign -States shall be granted certain titles; that their men-of-war shall be -granted exterritoriality when in foreign waters; that their symbols of -authority, such as flags and coats of arms, shall not be made improper -use of and not be treated with disrespect on the part of other States. -Every State must not only itself comply with the duties corresponding to -these rights of other States, but must also prevent its subjects from -such acts as violate the dignity of foreign States, and must punish them -for acts of that kind which it could not prevent. The Municipal Laws of -all States must therefore provide for the punishment of those who commit -offences against the dignity of foreign States,[192] and, if the -Criminal Law of the land does not contain such provisions, it is no -excuse for failure by the respective States to punish offenders. But it -must be emphasised that a State must prevent and punish such acts only -as really violate the dignity of a foreign State. Mere criticism of -policy, historical verdicts concerning the attitude of States and their -rulers, utterances of moral indignation condemning immoral acts of -foreign Governments and their monarchs need neither be suppressed nor -punished. - -[Footnote 192: According to the Criminal Law of England, "every one is -guilty of a misdemeanour who publishes any libel tending to degrade, -revile, or expose to hatred and contempt any foreign prince or -potentate, ambassador or other foreign dignitary, with the intent to -disturb peace and friendship between the United Kingdom and the country -to which any such person belongs." See Stephen, "A Digest of the -Criminal Law," article 91.] - -[Sidenote: Maritime Ceremonials.] - -[p] 122. Connected with the dignity of States are the maritime ceremonials -between vessels and between vessels and forts which belong to different -States. In former times discord and jealousy existed between the States -regarding such ceremonials, since they were looked upon as means of -keeping up the superiority of one State over another. Nowadays, so far -as the Open Sea is concerned, they are considered as mere acts of -courtesy recognising the dignity of States. They are the outcome of -international usages, and not of International Law, in honour of the -national flags. They are carried out by dipping flags or striking sails -or firing guns.[193] But so far as the territorial maritime belt is -concerned, littoral States can make laws concerning maritime ceremonials -to be observed by foreign merchantmen.[194] - -[Footnote 193: See Halleck, I. pp. 124-142, where the matter is treated -with all details. See also below, [p] 257.] - -[Footnote 194: See below, [p] 187.] - - -IV - -INDEPENDENCE AND TERRITORIAL AND PERSONAL SUPREMACY - - Vattel, I. Preliminaires, [p][p] 15-17--Hall, [p] 10--Westlake, I. pp. - 308-312--Lawrence, [p][p] 58-61--Phillimore, I. [p][p] 144-149--Twiss, I. - [p] 20--Halleck, I. pp. 93-113--Taylor, [p] 160--Wheaton, [p][p] - 72-75--Bluntschli, [p][p] 64-69--Hartmann, [p] 15--Heffter, [p][p] 29 and - 31--Holtzendorff in Holtzendorff, II. pp. 36-60--Gareis, [p][p] - 25-26--Ullmann, [p] 38--Bonfils, Nos. 253-271--Despagnet, Nos. - 187-189--Merignhac, I. pp. 233-383--Pradier-Fodere, I. Nos. - 287-332--Rivier, I. [p] 21--Nys, II. pp. 182-184--Calvo, I. [p][p] - 107-109--Fiore, I. Nos. 372-427, and Code, Nos. 180-387--Martens, - I. [p][p] 74 and 75--Westlake, Chapters, pp. 86-106. - -[Sidenote: Independence and Territorial as well as Personal Supremacy as -Aspects of Sovereignty.] - -[p] 123. Sovereignty as supreme authority, which is independent of any -other earthly authority, may be said to have different aspects. As -excluding dependence from any other authority, and in especial from the -authority of another State, sovereignty is _independence_. It is -_external_ independence with regard to the liberty of action outside its -borders in the intercourse with other States which a State enjoys. It is -_internal_ independence with regard to the liberty of action of a State -inside its borders. As comprising the power of a State to exercise -supreme authority over all persons and things within its territory, -sovereignty is _territorial_ supremacy. As comprising the power of a -State to exercise supreme authority over its citizens at home and -abroad, sovereignty is _personal_ supremacy. - -For these reasons a State as an International Person possesses -independence and territorial and personal supremacy. These three -qualities are nothing else than three aspects of the very same -sovereignty of a State, and there is no sharp boundary line between -them. The distinction is apparent and useful, although internal -independence is nothing else than sovereignty comprising territorial -supremacy, but viewed from a different point of view. - -[Sidenote: Consequences of Independence and Territorial and Personal -Supremacy.] - -[p] 124. Independence and territorial as well as personal supremacy are -not rights, but recognised and therefore protected qualities of States -as International Persons. The protection granted to these qualities by -the Law of Nations finds its expression in the right of every State to -demand that other States abstain themselves, and prevent their agents -and subjects, from committing any act which contains a violation of its -independence and its territorial as well as personal supremacy. - -In consequence of its external independence, a State can manage its -international affairs according to discretion, especially enter into -alliances and conclude other treaties, send and receive diplomatic -envoys, acquire and cede territory, make war and peace. - -In consequence of its internal independence and territorial supremacy, a -State can adopt any Constitution it likes, arrange its administration in -a way it thinks fit, make use of legislature as it pleases, organise its -forces on land and sea, build and pull down fortresses, adopt any -commercial policy it likes, and so on. According to the rule, _quidquid -est in territorio est etiam de territorio_, all individuals and all -property within the territory of a State are under the latter's dominion -and sway, and even foreign individuals and property fall at once under -the territorial supremacy of a State when they cross its frontier. -Aliens residing in a State can therefore be compelled to pay rates and -taxes, and to serve in the police under the same conditions as citizens -for the purpose of maintaining order and safety. But aliens may be -expelled, or not received at all. On the other hand, hospitality may be -granted to them whatever act they have committed abroad, provided they -abstain from making the hospitable territory the basis for attempts -against a foreign State. And a State can through naturalisation adopt -foreign subjects residing on its territory without the consent of the -home State, provided the individuals themselves give their consent. - -In consequence of its personal supremacy, a State can treat its subjects -according to discretion, and it retains its power even over such -subjects as emigrate without thereby losing their citizenship. A State -may therefore command its citizens abroad to come home and fulfil their -military service, may require them to pay rates and taxes for the -support of the home finances, may ask them to comply with certain -conditions in case they desire marriages concluded abroad or wills made -abroad recognised by the home authorities, can punish them on their -return for crimes they have committed abroad. - -[Sidenote: Violations of Independence and Territorial and Personal -Supremacy.] - -[p] 125. The duty of every State itself to abstain and to prevent its -agents and subjects from any act which contains a violation[195] of -another State's independence or territorial and personal supremacy is -correlative to the respective right of the other State. It is impossible -to enumerate all such actions as might contain a violation of this duty. -But it is of value to give some illustrative examples. Thus, in the -interest of the independence of other States, a State is not allowed to -interfere in the management of their international affairs nor to -prevent them from doing or to compel them to do certain acts in their -international intercourse. Further, in the interest of the territorial -supremacy of other States, a State is not allowed to send its troops, -its men-of-war, or its police forces into or through foreign territory, -or to exercise an act of administration or jurisdiction on foreign -territory, without permission.[196] Again, in the interest of the -personal supremacy of other States, a State is not allowed to naturalise -aliens residing on its territory without their consent,[197] nor to -prevent them from returning home for the purpose of fulfilling military -service or from paying rates and taxes to their home State, nor to -incite citizens of foreign States to emigration. - -[Footnote 195: See below, [p] 155.] - -[Footnote 196: But neighbouring States very often give such permission -to one another. Switzerland, for instance, allows German Custom House -officers to be stationed on two railway stations of Basle for the -purpose of examining the luggage of travellers from Basle to Germany.] - -[Footnote 197: See, however, below ([p] 299), where the fact is stated -that some States naturalise an alien through the very fact of his taking -domicile on their territory.] - -[Sidenote: Restrictions upon Independence.] - -[p] 126. Independence is not boundless liberty of a State to do what it -likes without any restriction whatever. The mere fact that a State is a -member of the Family of Nations restricts its liberty of action with -regard to other States because it is bound not to intervene in the -affairs of other States. And it is generally admitted that a State can -through conventions, such as a treaty of alliance or neutrality and the -like, enter into many obligations which hamper it more or less in the -management of its international affairs. Independence is a question of -degree, and it is therefore also a question of degree whether the -independence of a State is destroyed or not by certain restrictions. -Thus it is generally admitted that States under suzerainty or under -protectorate are so much restricted that they are not fully independent, -but half-Sovereign. And the same is the case with the member-States of a -Federal State which are part-Sovereign. On the other hand, the -restriction connected with the neutralisation of States does not, -according to the correct opinion,[198] destroy their independence, -although they cannot make war except in self-defence, cannot conclude -alliances, and are in other ways hampered in their liberty of action. - -[Footnote 198: See above, [p] 97.] - -From a political and a legal point of view it is of great importance -that the States imposing and those accepting restrictions upon -independence should be clear in their intentions. For the question may -arise whether these restrictions make the respective State a dependent -one. - -Thus through article 4 of the Convention of London of 1884 between Great -Britain and the former South African Republic stipulating that the -latter should not conclude any treaty with any foreign State, the Orange -Free State excepted, without approval on the part of Great Britain, the -Republic was so much restricted that Great Britain considered herself -justified in defending the opinion that the Republic was not an -independent State, although the Republic itself and many writers were of -a different opinion.[199] - -[Footnote 199: It is of interest to state the fact that, before the last -phase of the conflict between Great Britain and the Republic, -influential Continental writers stated the suzerainty of Great Britain -over the Republic. See Rivier, I. p. 89, and Holtzendorff in -Holtzendorff, II. p. 115.] - -Thus, to give another example, through article 1 of the Treaty of -Havana[200] of May 22, 1903, between the United States of America and -Cuba, stipulating that Cuba shall never enter into any such treaty with -a foreign Power as will impair, or tend to impair, the independence of -Cuba, and shall abstain from other acts, the Republic of Cuba is so much -restricted that some writers maintain--wrongly, I believe--that Cuba is -under an American protectorate and only a half-Sovereign State. - -[Footnote 200: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79. As -regards the international position of Cuba, see Whitcomb, "La situation -internationale de Cuba" (1905).] - -Again, the Republic of Panama is, by the Treaty of Washington[201] of -1904, likewise burdened with some restrictions in favour of the United -States, but here, too, it would be wrong to maintain that Panama is -under an American protectorate. - -[Footnote 201: See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 601.] - -[Sidenote: Restrictions upon Territorial Supremacy.] - -[p] 127. Just like independence, territorial supremacy does not give a -boundless liberty of action. Thus, by customary International Law every -State has a right to demand that its merchantmen can pass through the -maritime belt of other States. Thus, further, navigation on so-called -international rivers in Europe must be open to merchantmen of all -States. Thus, thirdly, foreign monarchs and envoys, foreign men-of-war, -and foreign armed forces must be granted exterritoriality. Thus, -fourthly, through the right of protection over citizens abroad which is -held by every State according to customary International Law, a State -cannot treat foreign citizens passing through or residing on its -territory arbitrarily according to discretion as it might treat its own -subjects; it cannot, for instance, compel them to serve[202] in its army -or navy. Thus, to give another and fifth example, a State, in spite of -its territorial supremacy, is not allowed to alter the natural -conditions of its own territory to the disadvantage of the natural -conditions of the territory of a neighbouring State--for instance, to -stop or to divert the flow of a river which runs from its own into -neighbouring territory.[203] - -[Footnote 202: Great Britain would seem to uphold an exception to this -rule, for Lord Reay, one of her delegates, declared--see "Deuxieme -Conference Internationale de la Paix, Actes et Documents," vol. III. p. -41--the following at the second Hague Peace Conference of 1907: "Nous -reconnaissons qu'en regle generale le neutre est exempt de tout service -militaire dans l'Etat ou il reside. Cependant dans les colonies -britanniques et, dans une certaine mesure, dans tous les pays en voie de -formation, la situation est tout autre et la population toute entiere, -sans distinction de nationalite, peut etre appelee sous les armes pour -defendre leurs foyers menaces."] - -[Footnote 203: See below, [p] 178 _a_.] - -In contradistinction to these restrictions by the customary Law of -Nations, a State can through treaties enter into obligations of many a -kind without thereby losing its internal independence and territorial -supremacy. Thus France by three consecutive treaties of peace--namely, -that of Utrecht of 1713, that of Aix-la-Chapelle of 1748, and that of -Paris of 1763--entered into the obligation to pull down and not to -rebuild the fortifications of Dunkirk.[204] Napoleon I. imposed by the -Peace Treaty of Tilsit of 1807 upon Prussia the restriction not to keep -more than 42,000 men under arms. Again, article 29 of the Treaty of -Berlin of 1878 imposed upon Montenegro the restriction not to possess a -navy.[205] There is hardly a State in existence which is not in one -point or another restricted in its territorial supremacy by treaties -with foreign Powers. - -[Footnote 204: This restriction was abolished by article 17 of the -Treaty of Paris of 1783.] - -[Footnote 205: It is doubtful whether this restriction is still in -force; see below, [p] 258.] - -[Sidenote: Restrictions upon Personal Supremacy.] - -[p] 128. Personal Supremacy does not give a boundless liberty of action -either. Although the citizens of a State remain under its power when -abroad, such State is restricted in the exercise of this power with -regard to all those matters in which the foreign State on whose -territory these citizens reside is competent in consequence of its -territorial supremacy. The duty to respect the territorial supremacy of -a foreign State must prevent a State from doing all acts which, although -they are according to its personal supremacy within its competence, -would violate the territorial supremacy of this foreign State. Thus, for -instance, a State is prevented from requiring such acts from its -citizens abroad as are forbidden to them by the Municipal Law of the -land in which they reside. - -But a State may also by treaty obligation be for some parts restricted -in the liberty of action with regard to its citizens. Thus articles 5, -25, 35, and 44 of the Treaty of Berlin of 1878 restrict the personal -supremacy of Bulgaria, Montenegro, Servia, and Roumania in so far as -these States are thereby obliged not to impose any religious -disabilities on any of their subjects.[206] - -[Footnote 206: See above, [p] 73.] - - -V - -SELF-PRESERVATION - - Vattel, II. [p][p] 49-53--Hall, [p][p] 8, 83-86--Westlake, I. pp. - 296-304--Phillimore, I. [p][p] 210-220--Twiss, I. [p][p] - 106-112--Halleck, I. pp. 93-113--Taylor, [p][p] 401-409--Wheaton, - [p][p] 61-62--Moore, II. [p][p] 215-219--Hartmann, [p] - 15--Heffter, [p] 30--Holtzendorff in Holtzendorff, II. pp. - 51-56--Gareis, [p] 25--Liszt, [p] 7--Ullmann, [p] 38--Bonfils, - Nos. 242-252--Despagnet, Nos. 172-175--Merignhac, I. pp. - 239-245--Pradier-Fodere, I. Nos. 211-286--Rivier, I. [p] 20--Nys, - II. pp. 178-181--Calvo, I. [p][p] 208-209--Fiore, I. Nos. - 452-466--Martens, I. [p] 73--Westlake, Chapters, pp. 110-125. - -[Sidenote: Self-preservation an excuse for violations.] - -[p] 129. From the earliest time of the existence of the Law of Nations -self-preservation was considered sufficient justification for many acts -of a State which violate other States. Although, as a rule, all States -have mutually to respect one another's Personality and are therefore -bound not to violate one another, as an exception, certain violations of -another State committed by a State for the purpose of self-preservation -are not prohibited by the Law of Nations. Thus, self-preservation is a -factor of great importance for the position of the States within the -Family of Nations, and most writers maintain that every State has a -fundamental right of self-preservation.[207] But nothing of the kind is -actually the case, if the real facts of the law are taken into -consideration. If every State really had a _right_ of self-preservation, -all the States would have the duty to admit, suffer, and endure every -violation done to one another in self-preservation. But such duty does -not exist. On the contrary, although self-preservation is in certain -cases an excuse recognised by International Law, no State is obliged -patiently to submit to violations done to it by such other State as acts -in self-preservation, but can repulse them. It is a fact that in certain -cases violations committed in self-preservation are not prohibited by -the Law of Nations. But, nevertheless, they remain violations and can -therefore be repulsed. Self-preservation is consequently an excuse, -because violations of other States are in certain exceptional cases not -prohibited when they are committed for the purpose and in the interest -of self-preservation, although they need not patiently be suffered and -endured by the States concerned. - -[Footnote 207: This right was formerly frequently called _droit de -convenance_, and was said to exist in the right of every State to act in -favour of its interests in case of a conflict between its own and the -interests of another State. See Heffter, [p] 26.] - -[Sidenote: What acts of self-preservation are excused.] - -[p] 130. It is frequently maintained that every violation is excused so -long as it was caused by the motive of self-preservation, but it becomes -more and more recognised that violations of other States in the interest -of self-preservation are excused in cases of _necessity_ only. Such acts -of violence in the interest of self-preservation are exclusively excused -as are necessary in self-defence, because otherwise the acting State -would have to suffer or have to continue to suffer a violation against -itself. If an imminent violation or the continuation of an already -commenced violation can be prevented and redressed otherwise than by a -violation of another State on the part of the endangered State, this -latter violation is not necessary, and therefore not excused and -justified. When, to give an example, a State is informed that on -neighbouring territory a body of armed men is being organised for the -purpose of a raid into its own territory, and when the danger can be -removed through an appeal to the authorities of the neighbouring -country, no case of necessity has arisen. But if such an appeal is -fruitless or not possible, or if there is danger in delay, a case of -necessity arises and the threatened State is justified in invading the -neighbouring country and disarming the intending raiders. - -The reason of the thing, of course, makes it necessary for every State -to judge for itself when it considers a case of necessity has arisen, -and it is therefore impossible to lay down a hard-and-fast rule -regarding the question when a State can or cannot have recourse to -self-help which violates another State. Everything depends upon the -circumstances and conditions of the special case, and it is therefore of -value to give some historical examples. - -[Sidenote: Case of the Danish Fleet (1807).] - -[p] 131. After the Peace of Tilsit of 1807 the British Government[208] was -cognisant of the provision of some secret articles of this treaty that -France should be at liberty to seize the Danish fleet and to make use of -it against Great Britain. This plan, when carried out, would have -endangered the position of Great Britain, which was then waging war -against France. As Denmark was not capable of defending herself against -an attack of the French army in North Germany under Bernadotte and -Davoust, who had orders to invade Denmark, the British Government -requested Denmark to deliver up her fleet to the custody of Great -Britain, and promised to restore it after the war. And at the same time -the means of defence against French invasion and a guaranty of her whole -possessions were offered to Denmark by England. The latter, however, -refused to comply with the British demands, whereupon the British -considered a case of necessity in self-preservation had arisen, shelled -Copenhagen, and seized the Danish fleet. - -[Footnote 208: I follow Hall's ([p] 86) summary of the facts.] - -[Sidenote: Case of Amelia Island.] - -[p] 132. "Amelia Island, at the mouth of St. Mary's River, and at that -time in Spanish territory, was seized in 1817 by a band of buccaneers, -under the direction of an adventurer named McGregor, who in the name of -the insurgent colonies of Buenos Ayres and Venezuela preyed -indiscriminately on the commerce of Spain and of the United States. The -Spanish Government not being able or willing to drive them off, and the -nuisance being one which required immediate action, President Monroe -called his Cabinet together in October 1817, and directed that a vessel -of war should proceed to the island and expel the marauders, destroying -their works and vessels."[209] - -[Footnote 209: See Wharton, [p] 50 a, and Moore, II. [p] 216.] - -[Sidenote: Case of the _Caroline_.] - -[p] 133. In 1837, during the Canadian rebellion, several hundreds of -insurgents got hold of an island in the river Niagara, on the territory -of the United States, and with the help of American subjects equipped a -boat called the _Caroline_, with the purpose of crossing into Canadian -territory and bringing material help to the insurgents. The Canadian -Government, timely informed of the imminent danger, sent a British force -over into the American territory, which obtained possession of the -_Caroline_, seized her arms, and then sent her adrift down the falls of -the Niagara. The United States complained of this British violation of -her territorial supremacy, but Great Britain was in a position to prove -that her act was necessary in self-preservation, since there was not -sufficient time to prevent the imminent invasion of her territory -through application to the United States Government.[210] - -[Footnote 210: See Wharton, I. [p] 50 c, Moore, II. [p] 217, and Hall, -[p] 84. With the case of the _Caroline_ is connected the case of -Macleod, which will be discussed below, [p] 446. Hall ([p] 86), Martens -(I. [p] 73), and others quote also the case of the _Virginius_ (1873) as -an example of necessity of self-preservation, but it seems that the -Spanish Government did not plead self-preservation but piracy as -justification of the capture of the vessel (see Moore, II. [p] 309, pp. -895-903). That a vessel sailing under another State's flag can -nevertheless be seized on the high seas in case she is sailing to a port -of the capturing State for the purpose of an invasion or bringing -material help to insurgents, there is no doubt. No better case of -necessity of self-preservation could be given, since the danger is -imminent and can be frustrated only by capture of the vessel.] - - -VI - -INTERVENTION - - Vattel, II. [p][p] 54-62--Hall, [p][p] 88-95--Westlake, I. pp. - 304-308--Lawrence, [p][p] 62-70--Phillimore, I. [p][p] - 390-415A--Halleck, I. pp. 94-109--Taylor, [p][p] 410-430--Walker, - [p] 7--Wharton, I. [p][p] 45-72--Moore, VI. [p][p] - 897-926--Wheaton, [p][p] 63-71--Bluntschli, [p][p] - 474-480--Hartmann, [p] 17--Heffter, [p][p] 44-46--Geffcken in - Holtzendorff, II. pp. 131-168--Gareis, [p] 26--Liszt, [p] - 7--Ullmann, [p][p] 163-164--Bonfils, Nos. 295-323--Despagnet, Nos. - 193-216--Merignhac, I. pp. 284-310--Pradier-Fodere, I. Nos. - 354-441--Rivier, I. [p] 31--Nys, II. pp. 185-193, 200-205--Calvo, - I. [p][p] 110-206--Fiore, I. Nos. 561-608, and Code, Nos. - 543-557--Martens, I. [p] 76--Bernard, "On the Principle of - non-Intervention" (1860)--Hautefeuille, "Le principe de - non-intervention" (1863)--Stapleton, "Intervention and - Non-intervention, or the Foreign Policy of Great Britain from 1790 - to 1865" (1866)--Geffcken, "Das Recht der Intervention" - (1887)--Kebedgy, "De l'intervention" (1890)--Floecker, "De - l'intervention en droit international" (1896)--Drago, "Cobro - coercitivo de deudas publicas" (1906)--Moulin, "La doctrine de - Drago" (1908). - -[Sidenote: Conception and character of Intervention.] - -[p] 134. Intervention is dictatorial interference by a State in the -affairs of another State for the purpose of maintaining or altering the -actual condition of things. Such intervention can take place by right or -without a right, but it always concerns the external independence or the -territorial or personal supremacy of the respective State, and the whole -matter is therefore of great importance for the position of the States -within the Family of Nations. That intervention is, as a rule, forbidden -by the Law of Nations which protects the International Personality of -the States, there is no doubt. On the other hand, there is just as -little doubt[211] that this rule has exceptions, for there are -interventions which take place by right, and there are others which, -although they do not take place by right, are nevertheless admitted by -the Law of Nations and are excused in spite of the violation of the -Personality of the respective States they involve. - -[Footnote 211: The so-called doctrine of non-intervention as defended by -some Italian writers (see Fiore, I. No. 565), who deny that intervention -is ever justifiable, is a political doctrine without any legal basis -whatever.] - -Intervention can take place in the external as well as in the internal -affairs of a State. It concerns in the first case the external -independence, and in the second either the territorial or the personal -supremacy. But it must be emphasised that intervention proper is always -_dictatorial_ interference, not interference pure and simple.[212] -Therefore intervention must neither be confounded with good offices, nor -with mediation, nor with intercession, nor with co-operation, because -none of these imply a _dictatorial_ interference. Good offices is the -name for such acts of friendly Powers interfering in a conflict between -two other States as tend to call negotiations into existence for the -peaceable settlement of the conflict, and mediation is the name -for the direct conduct on the part of a friendly Power of such -negotiations.[213] Intercession is the name for the interference -consisting in friendly advice given or friendly offers made with regard -to the domestic affairs of another State. And, lastly, co-operation is -the appellation of such interference as consists in help and assistance -lent by one State to another at the latter's request for the purpose of -suppressing an internal revolution. Thus, for example, Russia sent -troops in 1849, at the request of Austria, into Hungary to assist -Austria in suppressing the Hungarian revolt. - -[Footnote 212: Many writers constantly commit this confusion.] - -[Footnote 213: See below, vol. II. [p] 9.] - -[Sidenote: Intervention by Right.] - -[p] 135. It is apparent that such interventions as take place by right -must be distinguished from others. Wherever there is no right of -intervention, although it may be admissible and excused, an intervention -violates either the external independence or the territorial or the -personal supremacy. But if an intervention takes place by right, it -never contains such a violation, because the right of intervention is -always based on a legal restriction upon the independence or territorial -or personal supremacy of the State concerned, and because the latter is -in duty bound to submit to the intervention. Now a State may have a -right of intervention against another State, mainly for six -reasons:[214] - -[Footnote 214: The enumeration is not intended to be exhaustive.] - -(1) A Suzerain State has a right to intervene in many affairs of the -Vassal, and a State which holds a protectorate has a right to intervene -in all the external affairs of the protected State. - -(2) If an external affair of a State is at the same time by right an -affair of another State, the latter has a right to intervene in case the -former deals with that affair unilaterally. The events of 1878 provide -an illustrative example. Russia had concluded the preliminary Peace of -San Stefano with defeated Turkey; Great Britain protested because the -conditions of this peace were inconsistent with the Treaty of Paris of -1856 and the Convention of London of 1871, and Russia agreed to the -meeting of the Congress of Berlin for the purpose of arranging matters. -Had Russia persisted in carrying out the preliminary peace, Great -Britain as well as other signatory Powers of the Treaty of Paris and the -Convention of London doubtless possessed a right of intervention. - -(3) If a State which is restricted by an international treaty in its -external independence or its territorial or personal supremacy does not -comply with the restrictions concerned, the other party or parties have -a right to intervene. Thus the United States of America, in 1906, -exercised intervention in Cuba in conformity with article 3 of the -Treaty of Havana[215] of 1903, which stipulates: "The Government of Cuba -consents that the United States may exercise the right to intervene for -the preservation of Cuban independence, the maintenance of a Government -adequate for the protection of life, property, and individual -liberty...." And likewise the United States of America, in 1904, -exercised intervention in Panama in conformity with article 7 of the -Treaty of Washington[216] in 1903, which stipulates: "The same right and -authority are granted to the United States for the maintenance of public -order in the cities of Panama and Colon and the territories and harbours -adjacent thereto in case the Republic of Panama should not be, in the -judgment of the United States, able to maintain such order." - -[Footnote 215: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79.--Even -if no special right of intervention is stipulated, it nevertheless -exists in such cases. Thus--see below, [p] 574--those Powers which have -guaranteed the integrity of Norway under the condition that she does not -cede any part of her territory to any foreign Power would have a right -to intervene in case such a cession were contemplated, although the -treaty concerned does not stipulate this.] - -[Footnote 216: See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 599.] - -(4) If a State in time of peace or war violates such rules of the Law of -Nations as are universally recognised by custom or are laid down in -law-making treaties, other States have a right to intervene and to make -the delinquent submit to the rules concerned. If, for instance, a State -undertook to extend its jurisdiction over the merchantmen of another -State on the high seas, not only would this be an affair between the two -States concerned, but all other States would have a right to intervene -because the freedom of the open sea is a universally recognised -principle. Or if a State which is a party to the Hague Regulations -concerning Land Warfare were to violate one of these Regulations, all -the other signatory Powers would have a right to intervene. - -(5) A State that has guaranteed by treaty the form of government of a -State or the reign of a certain dynasty over the same has a right[217] -to intervene in case of change of form of government or of dynasty, -provided the respective treaty of guaranty was concluded between the -respective States and not between their monarchs personally. - -[Footnote 217: But this is not generally recognised; see, for instance, -Hall, [p] 93, who denies the existence of such a right. I do not see the -reason why a State should not be able to undertake the obligation to -retain a certain form of government or dynasty. That historical events -can justify such State in considering itself no longer bound by such -treaty according to the principle _rebus sic stantibus_ (see below, [p] -539) is another matter.] - -(6) The right of protection[218] over citizens abroad, which a State -holds, may cause an intervention by right to which the other party is -legally bound to submit. And it matters not whether protection of the -life, security, honour, or property of a citizen abroad is concerned. - -[Footnote 218: See below, [p] 319.] - -The so-called _Drago[219] doctrine_, which asserts the rule that -intervention is not allowed for the purpose of making a State pay its -public debts, is unfounded, and has not received general recognition, -although Argentina and some other South American States tried to -establish this rule at the second Hague Peace Conference of 1907. But -this Conference adopted, on the initiative of the United States of -America, a "Convention[220] respecting the Limitation of the Employment -of Force for the Recovery of Contract Debts." According to article 1 of -this Convention, the contracting Powers agree not to have recourse to -armed force for the recovery of contract debts claimed from the -Government of one country by the Government of another country as being -due to its nationals. This undertaking is, however, not applicable when -the debtor State refuses or neglects to reply to an offer of -arbitration, or, after accepting the offer, renders the settlement of -the _compromis_ impossible, or, after the arbitration, fails to submit -to the award.--It must be emphasised that the stipulations of this -Convention concern the recovery of all contract debts, whether or no -they arise from public loans. - -[Footnote 219: The Drago doctrine originates from Louis M. Drago, -sometime Foreign Secretary of the Republic of Argentina. See Drago, -"Cobro coercitivo de deudas publicas" (1906); Barclay, "Problems of -International Practice, &c." (1907), pp. 115-122; Moulin, "La Doctrine -de Drago" (1908); Higgins, "The Hague Peace Conferences, &c." (1909), -pp. 184-197; Scott, "The Hague Peace Conferences" (1909), vol. I. pp. -415-422; Calvo in R.I. 2nd Ser. V. (1903), pp. 597-623; Drago in R.G. -XIV. (1907), pp. 251-287; Moulin in R.G. XIV. (1907), pp. 417-472; -Hershey in A.J. I. (1907), pp. 26-45; Drago in A.J. I. (1907), pp. -692-726.] - -[Footnote 220: See Scott in A.J. II. (1908), pp. 78-94.] - -[Sidenote: Admissibility of Intervention in default of Right.] - -[p] 136. In contradistinction to intervention by right, there are other -interventions which must be considered admissible, although they violate -the independence or the territorial or personal supremacy of the State -concerned, and although such State has by no means any legal duty to -submit patiently and suffer the intervention. Of such interventions in -default of right there are two kinds generally admitted and -excused--namely, such as are necessary in self-preservation and such as -are necessary in the interest of the balance of power. - -(1) As regards interventions for the purpose of self-preservation, it is -obvious that, if any necessary violation committed in self-preservation -of the International Personality of other States is, as shown above ([p] -130), excused, such violation must also be excused as is contained in an -intervention. And it matters not whether such an intervention exercised -in self-preservation is provoked by an actual or imminent intervention -on the part of a third State, or by some other incident. - -(2) As regards intervention in the interest of the balance of power, it -is likewise obvious that it must be excused. An equilibrium between the -members of the Family of Nations is an indispensable[221] condition of -the very existence of International Law. If the States could not keep -one another in check, all Law of Nations would soon disappear, as, -naturally, an over-powerful State would tend to act according to -discretion instead of according to law. Since the Westphalian Peace of -1648 the principle of balance of power has played a preponderant part in -the history of Europe. It found express recognition in 1713 in the -Treaty of Peace of Utrecht, it was the guiding star at the Vienna -Congress in 1815 when the map of Europe was rearranged, at the Congress -of Paris in 1856, the Conference of London in 1867, and the Congress of -Berlin in 1878. The States themselves and the majority of writers agree -upon the admissibility of intervention in the interest of balance of -power. Most of the interventions exercised in the interest of the -preservation of the Turkish Empire must, in so far as they are not based -on treaty rights, be classified as interventions in the interest of -balance of power. Examples of this are supplied by collective -interventions exercised by the Powers in 1886 for the purpose of -preventing the outbreak of war between Greece and Turkey, and in 1897 -during the war between Greece and Turkey with regard to the island of -Crete. - -[Footnote 221: A survey of the opinions concerning the value of the -principle of balance of power is given by Bulmerincq, "Praxis, Theorie -und Codification des Voelkerrechts" (1874), pp. 40-50, but Bulmerincq -himself rejects the principle. See also Donnadieu, "Essai sur la theorie -de l'equilibre" (1900) where the matter is exhaustively treated, and -Dupuis, "Le principe d'equilibre et le concert europeen" (1909), pp. -90-108, and 494-513. It is necessary to emphasise that the principle of -the balance of power is not a legal principle and therefore not one of -International Law, but one of International policy; it is a political -principle indispensable to the existence of International Law in its -present condition.] - -[Sidenote: Intervention in the interest of Humanity.] - -[p] 137. Many jurists maintain that intervention is likewise admissible, -or even has a basis of right, when exercised in the interest of humanity -for the purpose of stopping religious persecution and endless cruelties -in time of peace and war. That the Powers have in the past exercised -intervention on these grounds, there is no doubt. Thus Great Britain, -France, and Russia intervened in 1827 in the struggle between -revolutionary Greece and Turkey, because public opinion was horrified at -the cruelties committed during this struggle. And many a time -interventions have taken place to stop the persecution of Christians in -Turkey. But whether there is really a rule of the Law of Nations which -admits such interventions may well be doubted. Yet, on the other hand, -it cannot be denied that public opinion and the attitude of the Powers -are in favour of such interventions, and it may perhaps be said that in -time the Law of Nations will recognise the rule that interventions in -the interests of humanity are admissible provided they are exercised in -the form of a collective intervention of the Powers.[222] - -[Footnote 222: See Hall, [p][p] 91 and 95, where the merits of the problem -are discussed from all sides. See also below, [p] 292, and Rougier in R.G. -XVII. (1910), pp. 468-526.] - -[Sidenote: Intervention _de facto_ a Matter of Policy.] - -[p] 138. Careful analysis of the rules of the Law of Nations regarding -intervention and the hitherto exercised practice of intervention make it -apparent that intervention is _de facto_ a matter of policy just like -war. This is the result of the combination of several factors. Since, -even in the cases in which it is based on a right, intervention is not -compulsory, but is solely in the discretion of the State concerned, it -is for that reason alone a matter of policy. Since, secondly, every -State must decide for itself whether vital interests of its own are at -stake and whether a case of necessity in the interest of -self-preservation has arisen, intervention is for this part again a -matter of policy. Since, thirdly, the question of balance of power is so -complicated and the historical development of the States involves -gradually an alteration of the division of power between the States, it -must likewise be left to the appreciation of every State whether or not -it considers the balance of power endangered and, therefore, an -intervention necessary. And who can undertake to lay down a -hard-and-fast rule with regard to the amount of inhumanity on the part -of a Government that would justify intervention according to the Law of -Nations? - -No State will ever intervene in the affairs of another if it has not -some important interest in doing so, and it has always been easy for -such State to find or pretend some legal justification for an -intervention, be it self-preservation, balance of power, or humanity. -There is no great danger to the welfare of the States in the fact that -intervention is _de facto_ a matter of policy. Too many interests are -common to all the members of the Family of Nations, and too great is -the natural jealousy between the Great Powers, for an abuse of -intervention on the part of one powerful State without calling other -States into the field. Since unjustified intervention violates the very -principles of the Law of Nations, and since, as I have stated above ([p] -135), in case of a violation of these principles on the part of a State -every other State has a right to intervene, any unjustifiable -intervention by one State in the affairs of another gives a right of -intervention to all other States. Thus it becomes apparent here, as -elsewhere, that the Law of Nations is intimately connected with the -interests of all the States, and that they must themselves secure the -maintenance and realisation of this law. This condition of things tends -naturally to hamper more the ambitions of weaker States than those of -the several Great Powers, but it seems unalterable. - -[Sidenote: The Monroe Doctrine.] - -[p] 139. The _de facto_ political character of the whole matter of -intervention becomes clearly apparent through the so-called Monroe -doctrine[223] of the United States of America. This doctrine, at its -first appearance, was indirectly a product of the policy of intervention -in the interest of legitimacy which the Holy Alliance pursued in the -beginning of the nineteenth century after the downfall of Napoleon. The -Powers of this alliance were inclined to extend their policy of -intervention to America and to assist Spain in regaining her hold over -the former Spanish colonies in South America which had declared and -maintained their independence, and which were recognised as independent -Sovereign States by the United States of America. To meet and to check -the imminent danger, President James Monroe delivered his celebrated -Message to Congress on December 2, 1823. This Message contains two quite -different, but nevertheless equally important, declarations. - -[Footnote 223: Wharton, [p] 57; Dana's Note No. 36 to Wharton, p. 36; -Tucker, "The Monroe Doctrine" (1885); Moore, "The Monroe Doctrine" -(1895), and Digest, VI. [p][p] 927-968; Cespedes, "La doctrine de Monroe" -(1893); Merignhac, "La doctrine de Monroe a la fin du XIXe siecle" -(1896); Beaumarchais, "La doctrine de Monroe" (1898); Redaway, "The -Monroe Doctrine" (1898); Pekin, "Les Etats-Unis et la doctrine de -Monroe" (1900).] - -(1) In connection with the unsettled boundary lines in the north-west of -the American continent, the Message declared "that the American -continents, by the free and independent condition which they have -assumed and maintained, are henceforth not to be considered as subjects -for future colonisation by any European Power." This declaration was -never recognised by the European Powers, and Great Britain and Russia -protested expressly against it. In fact, however, no occupation of -American territory has since then taken place on the part of a European -State. - -(2) In regard to the contemplated intervention of the Holy Alliance -between Spain and the South American States, the Message declared that -the United States had not intervened, and never would intervene, in wars -in Europe, but could not, on the other hand, in the interest of her own -peace and happiness, allow the allied European Powers to extend their -political system to any part of America and try to intervene in the -independence of the South American republics. - -(3) Since the time of President Monroe, the Monroe doctrine has been -gradually somewhat extended in so far as the United States claims a kind -of political hegemony over all the States of the American continent. -Whenever a conflict occurs between such an American State and a European -Power, the United States is ready to exercise intervention. Through the -civil war her hands were to a certain extent bound in the sixties of the -last century, and she could not prevent the occupation of Mexico by the -French army, but she intervened[224] in 1865. Again, she did not -intervene in 1902 when Great Britain, Germany, and Italy took combined -action against Venezuela, because she was cognisant of the fact that -this action intended merely to make Venezuela comply with her -international duties. But she intervened in 1896 in the boundary -conflict between Great Britain and Venezuela when Lord Salisbury had -sent an _ultimatum_ to Venezuela, and she retains the Monroe doctrine as -a matter of principle. - -[Footnote 224: See Moore, VI. [p] 957.] - -[Sidenote: Merits of the Monroe Doctrine.] - -[p] 140. The importance of the Monroe doctrine is of a political, not of a -legal character. Since the Law of Nations is a law between all the -civilised States as equal members of the Family of Nations, the States -of the American continent are subjects of the same international rights -and duties as the European States. The European States are, as far as -the Law of Nations is concerned, absolutely free to acquire territory in -America as elsewhere. And the same legal rules are valid concerning -intervention on the part of European Powers both in American affairs and -in affairs of other States. But it is evident that the Monroe doctrine, -as the guiding star of the policy of the United States, is of the -greatest _political_ importance. And it ought not to be maintained that -this policy is in any way inconsistent with the Law of Nations. In the -interest of balance of power in the world, the United States considers -it a necessity that European Powers should not acquire more territory on -the American continent than they actually possess. She considers, -further, her own welfare so intimately connected with that of the other -American States that she thinks it necessary, in the interest of -self-preservation, to watch closely the relations of these States with -Europe and also the relations between these very States, and eventually -to intervene in conflicts. Since every State must decide for itself -whether and where vital interests of its own are at stake and whether -the balance of power is endangered to its disadvantage, and since, as -explained above ([p] 138), intervention is therefore _de facto_ a matter -of policy, there is no legal impediment to the United States carrying -out a policy in conformity with the Monroe doctrine. This policy hampers -indeed the South American States, but with their growing strength it -will gradually disappear. For, whenever some of these States become -Great Powers themselves, they will no longer submit to the political -hegemony of the United States, and the Monroe doctrine will have played -its part. - - -VII - -INTERCOURSE - - Grotius, II. c. 2, [p] 13--Vattel, II. [p][p] 21-26--Hall, [p] - 13--Taylor, [p] 160--Bluntschli, [p] 381 and p. 26--Hartmann, [p] - 15--Heffter, [p][p] 26 and 33--Holtzendorff in Holtzendorff, II. - pp. 60-64--Gareis, [p] 27--Liszt, [p] 7--Ullmann, [p] 38--Bonfils, - Nos. 285-289--Despagnet, No. 183--Merignhac, I. pp. - 256-257--Pradier-Fodere, I. No. 184--Rivier, I. pp. 262-264--Nys, - II. pp. 221-228--Calvo, III. [p][p] 1303-1305--Fiore, I. No. - 370--Martens, I. [p] 79. - -[Sidenote: Intercourse a presupposition of International Personality.] - -[p] 141. Many adherents of the doctrine of fundamental rights include -therein also a right of intercourse of every State with all others. This -right of intercourse is said to contain a right of diplomatic, -commercial, postal, telegraphic intercourse, of intercourse by railway, -a right of foreigners to travel and reside on the territory of every -State, and the like. But if the real facts of international life are -taken into consideration, it becomes at once apparent that such a -fundamental right of intercourse does not exist. All the consequences -which are said to follow from the right of intercourse are not at all -consequences of a right, but nothing else than consequences of the fact -that intercourse between the States is a condition without which a Law -of Nations would not and could not exist. The civilised States make a -community of States because they are knit together through their common -interests and the manifold intercourse which serves these interests. -Through intercourse with one another and with the growth of their common -interests the Law of Nations has grown up among the civilised States. -Where there is no intercourse there cannot be a community and a law for -such community. A State cannot be a member of the Family of Nations and -an International Person, if it has no intercourse whatever with at least -one or more other States. Varied intercourse with other States is a -necessity for every civilised State. The mere fact that a State is a -member of the Family of Nations shows that it has various intercourse -with other States, for otherwise it would never have become a member of -that family. Intercourse is therefore one of the characteristics of the -position of the States within the Family of Nations, and it may be -maintained that intercourse is a presupposition of the international -Personality of every State. But no special right or rights of -intercourse between the States exist according to the Law of Nations. It -is because such special rights of intercourse do not exist that the -States conclude special treaties regarding matters of post, telegraphs, -telephones, railways, and commerce. On the other hand, most States keep -up protective duties to exclude or hamper foreign trade in the interest -of their home commerce, industry, and agriculture. And although as a -rule they allow[225] aliens to travel and to reside on their territory, -they can expel every foreign subject according to discretion. - -[Footnote 225: That an alien has no right to demand to be admitted to -British territory was decided in the case of Musgrove _v._ Chun Teeong -Toy, L.R. (1891), App. Cas. 272.] - -[Sidenote: Consequences of Intercourse as a Presupposition of -International Personality.] - -[p] 142. Intercourse being a presupposition of International Personality, -the Law of Nations favours intercourse in every way. The whole -institution of legation serves the interest of intercourse between the -States, as does the consular institution. The right of legation,[226] -which every full-Sovereign State undoubtedly holds, is held in the -interest of intercourse, as is certainly the right of protection over -citizens abroad[227] which every State possesses. The freedom of the -Open Sea,[228] which has been universally recognised since the end of -the first quarter of the nineteenth century, the right of every State to -the passage of its merchantmen through the maritime belt[229] of all -other States, and, further, freedom of navigation for the merchantmen of -all nations on so-called international rivers,[230] are further examples -of provisions of the Law of Nations in the interest of international -intercourse. - -[Footnote 226: See below, [p] 360.] - -[Footnote 227: See below, [p] 319. The right of protection over citizens -abroad is frequently said to be a special right of self-preservation, -but it is really a right in the interest of intercourse.] - -[Footnote 228: See below, [p] 259.] - -[Footnote 229: See below, [p] 188.] - -[Footnote 230: See below, [p] 178.] - -The question is frequently discussed and answered in the affirmative -whether a State has the right to require such States as are outside the -Family of Nations to open their ports and allow commercial intercourse. -Since the Law of Nations is a law between those States only which are -members of the Family of Nations, it has certainly nothing to do with -this question, which is therefore one of mere commercial policy and of -morality. - - -VIII - -JURISDICTION - - Hall, [p][p] 62, 75-80--Westlake, I. pp. 236-271--Lawrence, [p][p] - 93-109--Phillimore, I. [p][p] 317-356--Twiss, I. [p][p] - 157-171--Halleck, I. pp. 186-245--Taylor, [p][p] 169-171--Wheaton, - [p][p] 77-151--Moore, II. [p][p] 175-249--Bluntschli, [p][p] - 388-393--Heffter, [p][p] 34-39--Bonfils, Nos. 263-266--Rivier, I. - [p] 28--Nys, II. pp. 257-263--Fiore, I. Nos. 475-588. - -[Sidenote: Jurisdiction important for the position of the States within -the Family of Nations.] - -[p] 143. Jurisdiction is for several reasons a matter of importance as -regards the position of the States within the Family of Nations. States -possessing independence and territorial as well as personal supremacy -can naturally extend or restrict their jurisdiction as far as they like. -However, as members of the Family of Nations and International Persons, -the States must exercise self-restraint in the exercise of this natural -power in the interest of one another. Since intercourse of all kinds -takes place between the States and their subjects, the matter ought to -be thoroughly regulated by the Law of Nations. But such regulation has -as yet only partially grown up. The consequence of both the regulation -and non-regulation of jurisdiction is that concurrent jurisdiction of -several States can often at the same time be exercised over the same -persons and matters. And it can also happen that matters fall under no -jurisdiction because the several States which could extend their -jurisdiction over these matters refuse to do so, leaving them to each -other's jurisdiction. - -[Sidenote: Restrictions upon Territorial Jurisdiction.] - -[p] 144. As all persons and things within the territory of a State fall -under its territorial supremacy, every State has jurisdiction over them. -The Law of Nations, however, gives a right to every State to claim -so-called exterritoriality and therefore exemption from local -jurisdiction chiefly for its head,[231] its diplomatic envoys,[232] its -men-of-war,[233] and its armed forces[234] abroad. And partly by custom -and partly by treaty obligations, Eastern non-Christian States, Japan -now excepted, are restricted[235] in their territorial jurisdiction with -regard to foreign resident subjects of Christian Powers. - -[Footnote 231: Details below, [p][p] 348-353, and 356.--The exemption of a -State itself from the jurisdiction of another is not based upon a claim -to exterritoriality, but upon the claim to equality; see above, [p] 115.] - -[Footnote 232: Details below, [p][p] 385-405.] - -[Footnote 233: Details below, [p][p] 450-451.] - -[Footnote 234: Details below, [p] 445.] - -[Footnote 235: Details below, [p][p] 318 and 440.] - -[Sidenote: Jurisdiction over Citizens abroad.] - -[p] 145. The Law of Nations does not prevent a State from exercising -jurisdiction over its subjects travelling or residing abroad, since they -remain under its personal supremacy. As every State can also exercise -jurisdiction over aliens[236] within its boundaries, such aliens are -often under two concurrent jurisdictions. And, since a State is not -obliged to exercise jurisdiction for all matters over aliens on its -territory, and since the home State is not obliged to exercise -jurisdiction over its subjects abroad, it may and does happen that -aliens are actually for some matters under no State's jurisdiction. - -[Footnote 236: See below, [p] 317.] - -[Sidenote: Jurisdiction on the Open Sea.] - -[p] 146. As the Open Sea is not under the sway of any State, no State can -exercise its jurisdiction there. But it is a rule of the Law of Nations -that the vessels and the things and persons thereon remain during the -time they are on the Open Sea under the jurisdiction of the State under -whose flag they sail.[237] It is another rule of the Law of Nations that -piracy[238] on the Open Sea can be punished by any State, whether or no -the pirate sails under the flag of a State. Further,[239] a general -practice seems to admit the claim of every maritime State to exercise -jurisdiction over cases of collision at sea, whether the vessels -concerned are or are not sailing under its flag. Again, in the interest -of the safety of the Open Sea, every State has the right to order its -men-of-war to ask any suspicious merchantman they meet on the Open Sea -to show the flag, to arrest foreign merchantmen sailing under its flag -without an authorisation for its use, and to pursue into the Open Sea -and to arrest there such foreign merchantmen as have committed a -violation of its law whilst in its ports or maritime belt.[240] Lastly, -in time of war belligerent States have the right to order their -men-of-war to visit, search, and eventually capture on the Open Sea all -neutral vessels for carrying contraband, breach of blockade, or -unneutral services to the enemy. - -[Footnote 237: See below, [p] 260.] - -[Footnote 238: See below, [p] 278.] - -[Footnote 239: See below, [p] 265.] - -[Footnote 240: See below, [p][p] 265-266.] - -[Sidenote: Criminal Jurisdiction over Foreigners in Foreign States.] - -[p] 147. Many States claim jurisdiction and threaten punishment for -certain acts committed by a foreigner in foreign countries.[241] States -which claim jurisdiction of this kind threaten punishment for certain -acts either against the State itself, such as high treason, forging -bank-notes, and the like, or against its citizens, such as murder or -arson, libel and slander, and the like. These States cannot, of course, -exercise this jurisdiction as long as the foreigner concerned remains -outside their territory. But if, after the committal of such act, he -enters their territory and comes thereby under their territorial -supremacy, they have an opportunity of inflicting punishment. The -question is, therefore, whether States have a right to jurisdiction over -acts of foreigners committed in foreign countries, and whether the home -State of such an alien has a duty to acquiesce in the latter's -punishment in case he comes into the power of these States. The question -must be answered in the negative. For at the time such criminal acts are -committed the perpetrators are neither under the territorial nor under -the personal supremacy of the States concerned. And a State can only -require respect for its laws from such aliens as are permanently or -transiently within its territory. No right for a State to extend its -jurisdiction over acts of foreigners committed in foreign countries can -be said to have grown up according to the Law of Nations, and the right -of protection over citizens abroad held by every State would justify it -in an intervention in case one of its citizens abroad should be required -to stand his trial before the Courts of another State for criminal acts -which he did not commit during the time he was under the territorial -supremacy of such State.[242] In the only[243] case which is -reported--namely, in the case of Cutting--an intervention took place -according to this view. In 1886, one A. K. Cutting, a subject of the -United States, was arrested in Mexico for an alleged libel against one -Emigdio Medina, a subject of Mexico, which was published in the -newspaper of El Paso in Texas. Mexico maintained that she had a right to -punish Cutting, because according to her Criminal Law offences committed -by foreigners abroad against Mexican subjects are punishable in Mexico. -The United States, however, intervened,[244] and demanded Cutting's -release. Mexico refused to comply with this demand, but nevertheless -Cutting was finally released, as the plaintiff withdrew his action for -libel. Since Mexico likewise refused to comply with the demand of the -United States to alter her Criminal Law for the purpose of avoiding in -the future a similar incident, diplomatic practice has not at all -settled the subject. - -[Footnote 241: See Hall, [p] 62; Westlake, I. pp. 251-253; Lawrence, [p] -104; Taylor, [p] 191; Moore, II. [p][p] 200 and 201; Phillimore, I. [p] -334.] - -[Footnote 242: The Institute of International Law has studied the -question at several meetings and in 1883, at its meeting at Munich (see -Annuaire, VII. p. 156), among a body of fifteen articles concerning the -conflict of the Criminal Laws of different States, adopted the following -(article 8):--"Every State has a right to punish acts committed by -foreigners outside its territory and violating its penal laws when those -acts contain an attack upon its social existence or endanger its -security and when they are not provided against by the Criminal Law of -the territory where they take place." But it must be emphasised that -this resolution has value _de lege ferenda_ only.] - -[Footnote 243: The case of Cirilo Pouble--see Moore, II. [p] 200, pp. -227-228--concerning which the United States at first were inclined to -intervene, proved to be a case of a crime committed within Spanish -jurisdiction. The case of John Anderson--see Moore, I. [p] 174, p. 933--is -likewise not relevant, as he claimed to be a British subject.] - -[Footnote 244: See Westlake, I. p. 252; Taylor, [p] 192; Calvo, VI. [p][p] -171-173; Moore, II. [p] 201, and "Report on Extraterritorial Crime and the -Cutting Case" (1887); Rolin in R.I. XX. (1888), pp. 559-577. The case is -fully discussed and the American claim is disputed by Mendelssohn -Bartholdy, "Das raeumliche Herrschaftsgebiet des Strafgesetzes" (1908), -pp. 135-143.] - - - - -CHAPTER III - -RESPONSIBILITY OF STATES - - -I - -ON STATE RESPONSIBILITY IN GENERAL - - Grotius, II. c. 21, [p] 2--Pufendorf, VIII. c. 6, [p] 12--Vattel, II. - [p][p] 63-78--Hall, [p] 65--Halleck, I. pp. 440-444--Wharton, I. [p] - 21--Moore, VI. [p][p] 979-1039--Wheaton, [p] 32--Bluntschli, [p] - 74--Heffter, [p][p] 101-104--Holtzendorff in Holtzendorff, II. pp. - 70-74--Liszt, [p] 24--Ullmann, [p] 39--Bonfils, Nos. - 324-332--Despagnet, No. 466--Piedelievre, I. pp. - 317-322--Pradier-Fodere, I. Nos. 196-210--Rivier, I. pp. - 40-44--Calvo, III. [p][p] 1261-1298--Fiore, I. Nos. 659-679, and Code, - Nos. 591-610--Martens, I. [p] 118--Clunet, "Offenses et actes - hostiles commis par particuliers contre un etat etranger" - (1887)--Triepel, "Voelkerrecht und Landesrecht" (1899), pp. - 324-381--Anzillotti, "Teoria generale della responsabilita dello - stato nel diritto internazionale" (1902)--Wiese, "Le droit - international applique aux guerres civiles" (1898), pp. - 43-65--Rougier, "Les guerres civiles et le droit des gens" (1903), - pp. 448-474--Baty, "International Law" (1908), pp. - 91-242--Anzillotti in R.G. XIII. (1906), pp. 5-29 and - 285-309--Foster in A.J. I. (1907), pp. 5-10--Bar in R.I. 2nd Ser. - I. (1899), pp. 464-481. - -[Sidenote: Nature of State Responsibility.] - -[p] 148. It is often maintained that a State, as a sovereign person, can -have no legal responsibility whatever. This is only correct with -reference to certain acts of a State towards its subjects. Since a State -can abolish parts of its Municipal Law and can make new Municipal Law, -it can always avoid legal, although not moral, responsibility by a -change of Municipal Law. Different from this internal autocracy is the -external responsibility of a State to fulfil its international legal -duties. Responsibility for such duties is, as will be remembered,[245] a -quality of every State as an International Person, without which the -Family of Nations could not peaceably exist. Although there is no -International Court of Justice which could establish such -responsibility and pronounce a fine or other punishment against a State -for neglect of its international duties, State responsibility concerning -international duties is nevertheless a _legal_ responsibility. For a -State cannot abolish or create new International Law in the same way as -it can abolish or create new Municipal Law. A State, therefore, cannot -renounce its international duties unilaterally[246] at discretion, but -is and remains legally bound by them. And although there is not and -never will be a central authority above the single States to enforce the -fulfilment of these duties, there is the legalised self-help of the -single States against one another. For every neglect of an international -legal duty constitutes an international delinquency,[247] and the -violated State can through reprisals or even war compel the delinquent -State to comply with its international duties. It is only theorists who -deny the possibility of a legal responsibility of States, the practice -of the States themselves recognises it distinctly, although there may in -a special case be controversy as to whether a responsibility is to be -borne. And State responsibility is now in a general way recognised for -the time of war by article 3 of the Hague Convention of 1907, concerning -the Laws and Customs of War on Land, which stipulates: "A belligerent -party which violates the provisions of the said Regulations shall, if -the case demands, be liable to make compensation. It shall be -responsible for all acts committed by persons forming part of its armed -forces." - -[Footnote 245: See above, [p] 113.] - -[Footnote 246: See Annex to Protocol I. of Conference of London, 1871, -where the Signatory Powers proclaim that "it is an essential principle -of the Law of Nations that no Power can liberate itself from the -engagements of a treaty, or modify the stipulations thereof, unless with -the consent of the contracting Powers by means of an amicable -arrangement."] - -[Footnote 247: See below, [p] 151.] - -[Sidenote: Original and Vicarious State Responsibility.] - -[p] 149. Now if we examine the various international duties out of which -responsibility of a State may rise, we find that there is a necessity -for two different kinds of State responsibility to be distinguished. -They may be named "original" in contradistinction to "vicarious" -responsibility. I name as "original" the responsibility borne by a State -for its own--that is, its Government's actions, and for such actions of -the lower agents or private individuals as are performed at the -Government's command or with its authorisation. But States have to bear -another responsibility besides that just mentioned. For States are, -according to the Law of Nations, in a sense responsible for certain acts -other than their own--namely, certain unauthorised injurious acts of -their agents, of their subjects, and even of such aliens as are for the -time living within their territory. This responsibility of States for -acts other than their own I name "vicarious" responsibility. Since the -Law of Nations is a law between States only, and since States are the -sole exclusive subjects of International Law, individuals are mere -objects[248] of International Law, and the latter is unable to confer -directly rights and duties upon individuals. And for this reason the Law -of Nations must make every State in a sense responsible for certain -internationally injurious acts committed by its officials, subjects, and -such aliens as are temporarily resident on its territory.[249] - -[Footnote 248: See below, [p] 290.] - -[Footnote 249: The distinction between original and vicarious -responsibility was first made, in 1905, in the first edition of this -treatise and ought therefore to have been discussed by Anzillotti in his -able article in R.G. XIII. (1906), p. 292. The fact that he does not -appreciate this distinction is prejudicial to the results of his -researches concerning the responsibility of States.] - -[Sidenote: Essential Difference between Original and Vicarious -Responsibility.] - -[p] 150. It is, however, obvious that original and vicarious State -responsibility are essentially different. Whereas the one is -responsibility of a State for a neglect of its own duty, the other is -not. A neglect of international legal duties by a State constitutes an -international delinquency. The responsibility which a State bears for -such delinquency is especially grave, and requires, apart from other -especial consequences, a formal expiatory act, such as an apology at -least, by the delinquent State to repair the wrong done. On the other -hand, the vicarious responsibility which a State bears requires chiefly -compulsion to make those officials or other individuals who have -committed internationally injurious acts repair as far as possible the -wrong done, and punishment, if necessary, of the wrongdoers. In case a -State complies with these requirements, no blame falls upon it on -account of such injurious acts. But of course, in case a State refuses -to comply with these requirements, it commits thereby an international -delinquency, and its hitherto vicarious responsibility turns _ipso -facto_ into original responsibility. - - -II - -STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES - - See the literature quoted above at the commencement of [p] 148. - -[Sidenote: Conception of International Delinquencies.] - -[p] 151. International delinquency is every injury to another State -committed by the head and the Government of a State through violation of -an international legal duty. Equivalent to acts of the head and -Government are acts of officials or other individuals commanded or -authorised by the head or Government. - -An international delinquency is not a crime, because the delinquent -State, as a Sovereign, cannot be punished, although compulsion may be -exercised to procure a reparation of the wrong done. - -International delinquencies in the technical sense of the term must not -be confounded either with so-called "Crimes against the Law of Nations" -or with so-called "International Crimes." "Crimes against the Law of -Nations" in the wording of many Criminal Codes of the single States are -such acts of individuals against foreign States as are rendered criminal -by these Codes. Of these acts, the gravest are those for which the State -on whose territory they are committed bears a vicarious responsibility -according to the Law of Nations. "International Crimes," on the other -hand, refer to crimes like piracy on the high seas or slave trade, which -either every State can punish on seizure of the criminals, of whatever -nationality they may be, or which every State has by the Law of Nations -a duty to prevent. - -An international delinquency must, further, not be confounded with -discourteous and unfriendly acts. Although such acts may be met by -retorsion, they are not illegal and therefore not delinquent acts. - -[Sidenote: Subjects of International Delinquencies.] - -[p] 152. An international delinquency may be committed by every member of -the Family of Nations, be such member a full-Sovereign, half-Sovereign, -or part-Sovereign State. Yet, half- and part-Sovereign States can commit -international delinquencies in so far only as they have a footing within -the Family of Nations, and therefore international duties of their own. -And even then the circumstances of each case decide whether the -delinquent has to account for its neglect of an international duty -directly to the wronged State, or whether it is the full-Sovereign State -(suzerain, federal, or protectorate-exercising State) to which the -delinquent State is attached that must bear a vicarious responsibility -for the delinquency. On the other hand, so-called Colonial States -without any footing whatever within the Family of Nations and, further, -the member-States of the American Federal States, which likewise lack -any footing whatever within the Family of Nations because all their -possible international relations are absorbed by the respective Federal -States, cannot commit an international delinquency. Thus an injurious -act against France committed by the Government of the Commonwealth of -Australia or by the Government of the State of California in the United -States of America, would not be an international delinquency in the -technical sense of the term, but merely an internationally injurious act -for which Great Britain or the United States of America must bear a -vicarious responsibility. An instance of this is to be found in the -conflict[250] which arose in 1906 between Japan and the United States of -America on account of the segregation of Japanese children by the Board -of Education of San Francisco and the demand of Japan that this measure -should be withdrawn. The Government of the United States at once took -the side of Japan, and endeavoured to induce California to comply with -the Japanese demands. - -[Footnote 250: See Hyde in "The Green Bag," XIX. (1907), pp. 38-49; Root -in A.J. I. (1907), pp. 273-286; Barthelemy in R.G. XIV. (1907), pp. -636-685.] - -[Sidenote: State Organs able to commit International Delinquencies.] - -[p] 153. Since States are juristic persons, the question arises, Whose -internationally injurious acts are to be considered State acts and -therefore international delinquencies? It is obvious that acts of this -kind are, first, all such acts as are performed by the heads of States -or by the members of Government acting in that capacity, so that their -acts appear as State acts. Acts of such kind are, secondly, all acts of -officials or other individuals which are either commanded or authorised -by Governments. On the other hand, unauthorised acts of corporations, -such as Municipalities, or of officials, such as magistrates or even -ambassadors, or of private individuals, never constitute an -international delinquency. And, further, all acts committed by heads of -States and members of Government outside their official capacity, simply -as individuals who act for themselves and not for the State, are not -international delinquencies either.[251] The States concerned must -certainly bear a vicarious responsibility for all such acts, but for -that very reason these acts do not comprise international delinquencies. - -[Footnote 251: See below [p][p] 157-158.] - -[Sidenote: No International Delinquency without Malice or culpable -Negligence.] - -[p] 154. An act of a State injurious to another State is nevertheless not -an international delinquency if committed neither wilfully and -maliciously nor with culpable negligence. Therefore, an act of a State -committed by right or prompted by self-preservation in necessary -self-defence does not contain an international delinquency, however -injurious it may actually be to another State. And the same is valid in -regard to acts of officials or other individuals committed by command or -with the authorisation of a Government. - -[Sidenote: Objects of International Delinquencies.] - -[p] 155. International delinquencies may be committed against so many -different objects that it is impossible to enumerate them. It suffices -to give some striking examples. Thus a State may be injured--in regard -to its independence through an unjustified intervention; in regard to -its territorial supremacy through a violation of its frontier; in regard -to its dignity through disrespectful treatment of its head or its -diplomatic envoys; in regard to its personal supremacy through forcible -naturalisation of its citizens abroad; in regard to its treaty rights -through an act violating a treaty; in regard to its right of protection -over citizens abroad through any act that violates the body, the honour, -or the property[252] of one of its citizens abroad. A State may also -suffer various injuries in time of war by illegitimate acts of warfare, -or by a violation of neutrality on the part of a neutral State in favour -of the other belligerent. And a neutral may in time of war be injured in -various ways through a belligerent violating neutrality by acts of -warfare within the neutral State's territory; for instance, through a -belligerent man-of-war attacking an enemy vessel in a neutral port or in -neutral territorial waters, or through a belligerent violating -neutrality by acts of warfare committed on the Open Sea against neutral -vessels. - -[Footnote 252: That a State which does not pay its public debts due to -foreigners and refuses, on the demand of the home State of the -foreigners concerned, to make satisfactory arrangements commits -international delinquency there is no doubt. On the so-called Drago -doctrine and the Hague Convention concerning the Employment of Force for -the Recovery of Contract Debts, see above, [p] 135, No. 6.] - -[Sidenote: Legal consequences of International Delinquencies.] - -[p] 156. The nature of the Law of Nations as a law between, not above, -Sovereign States excludes the possibility of punishing a State for an -international delinquency and of considering the latter in the light of -a crime. The only legal consequences of an international delinquency -that are possible under existing circumstances are such as create a -reparation of the moral and material wrong done. The merits and the -conditions of the special cases are, however, so different that it is -impossible for the Law of Nations to prescribe once for all what legal -consequences an international delinquency should have. The only rule -which is unanimously recognised by theory and practice is that out of an -international delinquency arises a right for the wronged State to -request from the delinquent State the performance of such expiatory acts -as are necessary for a reparation of the wrong done. What kind of acts -these are depends upon the special case and the discretion of the -wronged State. It is obvious that there must be a pecuniary reparation -for a material damage. Thus, according to article 3 of the Hague -Convention of 1907, concerning the Laws and Customs of War on Land, a -belligerent party which violates these laws shall, if the case demands, -be liable to make compensation. But at least a formal apology on the -part of the delinquent will in every case be necessary. This apology may -have to take the form of some ceremonial act, such as a salute to the -flag or to the coat of arms of the wronged State, the mission of a -special embassy bearing apologies, and the like. A great difference -would naturally be made between acts of reparation for international -delinquencies deliberately and maliciously committed, on the one hand, -and, on the other, for such as arise merely from culpable negligence. - -When the delinquent State refuses reparation of the wrong done, the -wronged State can exercise such means as are necessary to enforce an -adequate reparation. In case of international delinquencies committed in -time of peace, such means are reprisals[253] (including embargo and -pacific blockade) and war as the case may require. On the other hand, in -case of international delinquencies committed in time of war through -illegitimate acts of warfare on the part of a belligerent, such means -are reprisals and the taking of hostages.[254] - -[Footnote 253: See below, vol. II. [p] 34.] - -[Footnote 254: See below, vol. II. [p][p] 248 and 259.] - - -III - -STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS - - See the literature quoted above at the commencement of [p] 148, and - especially Moore, VI. [p][p] 998-1018. - -[Sidenote: Responsibility varies with Organs concerned.] - -[p] 157. States must bear vicarious responsibility for all internationally -injurious acts of their organs. As, however, these organs are of -different kinds and of different position, the actual responsibility of -a State for acts of its organs varies with the agents concerned. It is -therefore necessary to distinguish between internationally injurious -acts of heads of States, members of Government, diplomatic envoys, -parliaments, judicial functionaries, administrative officials, and -military and naval forces. - -[Sidenote: Internationally injurious Acts of Heads of States.] - -[p] 158. Such international injurious acts as are committed by heads of -States in the exercise of their official functions are not our concern -here, because they constitute international delinquencies which have -been discussed above ([p][p] 151-156). But a monarch can, just as any other -individual, in his private life commit many internationally injurious -acts, and the question is, whether and in what degree a State must bear -responsibility for such acts of its head. The position of a head of a -State, who is within and without his State neither under the -jurisdiction of a Court of Justice nor under any kind of disciplinary -control, makes it a necessity for the Law of Nations to claim a certain -vicarious responsibility from States for internationally injurious acts -committed by their heads in private life. Thus, for instance, when a -monarch during his stay abroad commits an act injurious to the property -of a foreign subject and refuses adequate reparation, his State may be -requested to pay damages on his behalf. - -[Sidenote: Internationally injurious Acts of Members of Government.] - -[p] 159. As regards internationally injurious acts of members of a -Government, a distinction must be made between such acts as are -committed by the offenders in their official capacity, and other acts. -Acts of the first kind constitute international delinquencies, as stated -above ([p] 153). But members of a Government can in their private life -perform as many internationally injurious acts as private individuals, -and we must ascertain therefore what kind of responsibility their State -must bear for such acts. Now, as members of a Government have not the -exceptional position of heads of States, and are, therefore, under the -jurisdiction of the ordinary Courts of Justice, there is no reason why -their State should bear for internationally injurious acts committed by -them in their private life a vicarious responsibility different from -that which it has to bear for acts of private persons. - -[Sidenote: Internationally injurious Acts of Diplomatic Envoys.] - -[p] 160. The position of diplomatic envoys who, as representatives of -their home State, enjoy the privileges of exterritoriality, gives, on -the one hand, a very great importance to internationally injurious acts -committed by them on the territory of the receiving State, and, on the -other hand, excludes the jurisdiction of the receiving State over such -acts. The Law of Nations therefore makes the home State in a sense -responsible for all acts of an envoy injurious to the State or its -subjects in whose territory he resides. But it depends upon the merits -of the special case what measures beyond simple recall must be taken to -satisfy the wronged State. Thus, for instance, a crime committed by the -envoy on the territory of the receiving State must be punished by his -home State, and according to special circumstances and conditions the -home State may be obliged to disown an act of its envoy, to apologise or -express its regret for his behaviour, or to pay damages. It must, -however, be remembered that such injurious acts as an envoy performs at -the command or with the authorisation of the home State, constitute -international delinquencies for which the home State bears original -responsibility and for which the envoy cannot personally be blamed. - -[Sidenote: Internationally injurious Attitudes of Parliaments.] - -[p] 161. As regards internationally injurious attitudes of parliaments, it -must be kept in mind that, most important as may be the part parliaments -play in the political life of a nation, they do not belong to the agents -which represent the States in their international relations with other -States. Therefore, however injurious to a foreign State an attitude of a -parliament may be, it can never constitute an international delinquency. -That, on the other hand, all States must bear vicarious responsibility -for such attitudes of their parliaments, there can be no doubt. But, -although the position of a Government is difficult in such cases, -especially in States that have a representative Government, this does -not concern the wronged State, which has a right to demand satisfaction -and reparation for the wrong done. - -[Sidenote: Internationally injurious Acts of Judicial Functionaries.] - -[p] 162. Internationally injurious acts committed by judicial -functionaries in their private life are in no way different from such -acts committed by other individuals. But these functionaries may in -their official capacity commit such acts, and the question is how far a -State's vicarious responsibility for acts of its judicial functionaries -can reasonably be extended in face of the fact that in modern civilised -States these functionaries are to a great extent independent of their -Government.[255] Undoubtedly, in case of such denial or undue delay of -justice by the Courts as is internationally injurious, a State must find -means to exercise compulsion against such Courts. And the same is valid -with regard to an obvious and malicious act of misapplication of the law -by the Courts which is injurious to another State. But if a Court -observes its own proper forms of justice and nevertheless makes a -materially unjust order or pronounces a materially unjust judgment, -matters become so complicated that there is hardly a peaceable way in -which the injured State can successfully obtain reparation for the wrong -done, unless the other party consents to bring the case before a Court -of Arbitration. - -[Footnote 255: Wharton, II. [p] 230, comprises abundant and instructive -material on this question.] - -An illustrative case is that of the _Costa Rica Packet_,[256] which -happened in 1891. Carpenter, the master of this Australian whaling-ship, -was, by order of a Court of Justice, arrested on November 2, 1891, in -the port of Ternate, in the Dutch East Indies, for having committed -three years previously a theft on the sea within Dutch territorial -waters. He was, however, released on November 28, because the Court -found that the alleged crime was not committed within Dutch territorial -waters, but on the High Seas. Great Britain demanded damages for the -arrest of the master of the _Costa Rica Packet_, but Holland maintained -that, since the judicial authorities concerned had ordered the arrest -of Carpenter in strict conformity with the Dutch laws, the British claim -was unjustified. After some correspondence, extending over several -years, Great Britain and Holland agreed, in 1895, upon having the -conflict settled by arbitration and upon appointing the late Professor -de Martens of St. Petersburg as arbitrator. The award, given in 1899, -was in favour of Great Britain, and Holland was condemned to pay damages -to the master, the proprietors, and the crew of the _Costa Rica -Packet_.[257] - -[Footnote 256: See Bles in R.I. XXVIII. (1896), pp. 452-468; -Regelsperger in R.G. IV. (1897), pp. 735-745; Valery in R.G. V. (1898), -pp. 57-66; Moore, I. [p] 148. See also Ullmann, "De la responsabilite de -l'etat en matiere judiciaire" (1911).] - -[Footnote 257: The whole correspondence on the subject and the award are -printed in Martens, N.R.G. 2nd Ser. XXIII. (1898), pp. 48, 715, and -808.] - -[Sidenote: Internationally injurious Acts of administrative Officials -and Military and Naval Forces.] - -[p] 163. Internationally injurious acts committed in the exercise of their -official functions by administrative officials and military and naval -forces of a State without that State's command or authorisation, are not -international delinquencies because they are not State acts. But a State -bears a wide, unlimited, and unrestricted vicarious responsibility for -such acts because its administrative officials and military and naval -forces are under its disciplinary control, and because all acts of such -officials and forces in the exercise of their official functions are -_prima facie_ acts of the respective State.[258] Therefore, a State has, -first of all, to disown and disapprove of such acts by expressing its -regret or even apologising to the Government of the injured State; -secondly, damages must be paid where required; and, lastly, the -offenders must be punished according to the merits of the special case. - -[Footnote 258: It is of importance to quote again here art. 3 of the -Hague Convention of 1907, concerning the Laws and Customs of War on -Land, which stipulates that a State is responsible for all acts -committed by its armed forces.] - -As regards the question what kind of acts of administrative officials -and military and naval forces are of an internationally injurious -character, the rule may safely be laid down that such acts of these -subjects are internationally injurious as would constitute -international delinquencies when committed by the State itself or with -its authorisation. Three very instructive cases may be quoted as -illustrative examples: - -(1) On September 26, 1887, a German soldier on sentry duty at the -frontier near Vexaincourt shot from the German side and killed an -individual who was on French territory. As this act of the sentry -violated French territorial supremacy, Germany disowned and apologised -for it and paid a sum of 50,000 francs to the widow of the deceased as -damages. The sentry, however, escaped punishment because he proved that -he had acted in obedience to orders which he had misunderstood. - -(2) On November 26, 1906, Hasmann, a member of the crew of the German -gunboat _Panther_,[259] at that time in the port of Itajahi in Brazil, -failed to return on board his ship. The commander of the _Panther_ sent -a searching party, comprising three officers in plain clothes and a -dozen non-commissioned officers and soldiers in uniform, on shore for -the purpose of finding the whereabouts of Hasmann. This party, during -the following night, penetrated into several houses, and compelled some -of the residents to assist them in their search for the missing Hasmann, -who, however, could not be found. He voluntarily returned on board the -following morning. As this act violated Brazilian territorial supremacy, -Brazil lodged a complaint with Germany, which, after an inquiry, -disowned the act of the commander of the _Panther_, formally apologised -for it, and punished the commander of the _Panther_ by relieving him of -his command.[260] - -[Footnote 259: See R.G. XIII. (1906), pp. 200-206.] - -[Footnote 260: Another example occurred in 1904, when the Russian Baltic -Fleet, on its way to the Far East during the Russo-Japanese war, fired -upon the Hull Fishing Fleet off the Dogger Bank; see below, vol. II. [p] -5.] - -(3) On July 15, 1911, while the Spanish were in occupation of Alcazar -in Morocco, M. Boisset, the French Consular Agent, who was riding back -to Alcazar from Suk el Arba with his native servants, was stopped at the -gate of the town by a Spanish sentinel. The sentinel refused to allow -him to enter unless he and his servants first delivered up their arms. -As M. Boisset refused, the sentinel barred the way with his fixed -bayonet and called out the guard. M. Boisset's horse reared, and the -sentinel thereupon covered him with his rifle. After parleying to no -purpose with the guard, to whom he explained who he was, the French -Consular Agent was conducted by an armed escort of Spanish soldiers to -the Spanish barracks. A native rabble followed upon the heels of the -procession and cried out: "The French Consular Agent is being arrested -by the Spaniards." Upon arriving at the barracks M. Boisset had an -interview with a Spanish officer, who, without in any way expressing -regret, merely observed that there had been a misunderstanding -(_equivocacione_), and allowed the French Consular Agent to go his way. -It is obvious that, as Consuls in Eastern non-Christian countries, Japan -now excepted, are exterritorial and inviolable, the arrest of M. Boisset -was a great injury to France, which lodged a complaint with Spain. As -promptly as July 19 the Spanish Government tendered a formal apology to -France, and instructed the Spanish Commander at Alcazar to tender a -formal apology to M. Boisset. - -But it must be specially emphasised that a State never bears any -responsibility for losses sustained by foreign subjects through -_legitimate_ acts of administrative officials and military and naval -forces. Individuals who enter foreign territory submit themselves to the -law of the land, and their home State has no right to request that they -should be otherwise treated than as the law of the land authorises a -State to treat its own subjects.[261] Therefore, since the Law of -Nations does not prevent a State from expelling aliens, the home State -of an expelled alien cannot request the expelling State to pay damages -for the losses sustained by the expelled through his having to leave the -country. Therefore, further, a State need not make any reparation for -losses sustained by an alien through legitimate measures taken by -administrative officials and military forces in time of war, -insurrection,[262] riot, or public calamity, such as a fire, an epidemic -outbreak of dangerous disease, and the like. - -[Footnote 261: Provided, however, such law does not violate essential -principles of justice. See below, [p] 320.] - -[Footnote 262: See below, [p] 167.] - - -IV - -STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS - - See the literature quoted above at the commencement of [p] 148, and - especially Moore, VI. [p][p] 1019-1031. - -[Sidenote: Vicarious in contradistinction to original State -Responsibility for Acts of Private Persons.] - -[p] 164. As regards State responsibility for acts of private persons, it -is first of all necessary not to confound the original with the -vicarious responsibility of States for internationally injurious acts of -private persons. International Law imposes the duty upon every State to -prevent as far as possible its own subjects, and such foreign subjects -as live within its territory, from committing injurious acts against -other States. A State which either intentionally and maliciously or -through culpable negligence does not comply with this duty commits an -international delinquency for which it has to bear original -responsibility. But it is practically impossible for a State to prevent -all injurious acts which a private person might commit against a foreign -State. It is for that reason that a State must, according to -International Law, bear vicarious responsibility for such injurious -acts of private individuals as are incapable of prevention. - -[Sidenote: Vicarious responsibility for Acts of Private Persons relative -only.] - -[p] 165. Now, whereas the vicarious responsibility of States for official -acts of administrative officials and military and naval forces is -unlimited and unrestricted, their vicarious responsibility for acts of -private persons is only relative. For their sole duty is to procure -satisfaction and reparation for the wronged State as far as possible by -punishing the offenders and compelling them to pay damages where -required. Beyond this limit a State is not responsible for acts of -private persons; there is in especial no duty of a State itself to pay -damages for such acts if the offenders are not able to do it. - -[Sidenote: Municipal Law for Offences against Foreign States.] - -[p] 166. It is a consequence of the vicarious responsibility of States for -acts of private persons that by the Criminal Law of every civilised -State punishment is severe for certain offences of private persons -against foreign States, such as violation of ambassadors' privileges, -libel on heads of foreign States and on foreign envoys, and other -injurious acts.[263] In every case that arises the offender must be -prosecuted and the law enforced by the Courts of Justice. And it is -further a consequence of the vicarious responsibility of States for acts -of private persons that criminal offences of private persons against -foreign subjects--such offences are indirectly offences against the -respective foreign States because the latter exercise protection over -their subjects abroad--must be punished according to the ordinary law of -the land, and that the Civil Courts of Justice of the land must be -accessible for claims of foreign subjects against individuals living -under the territorial supremacy of such land. - -[Footnote 263: As regards the Criminal Law of England concerning such -acts, see Stephen's Digest, articles 96-103.] - -[Sidenote: Responsibility for Acts of Insurgents and Rioters.] - -[p] 167. The vicarious responsibility of States for acts of insurgents and -rioters is the same as for acts of other private individuals. As soon -as peace and order are re-established, such insurgents and rioters as -have committed criminal injuries against foreign States must be punished -according to the law of the land. The point need not be mentioned at all -were it not for the fact that, in several cases of insurrection and -riots, claims have been made by foreign States against the local State -for damages for losses sustained by their subjects through acts of the -insurgents or rioters respectively, and that some writers[264] assert -that such claims are justified by the Law of Nations. The majority of -writers maintain, correctly, I think, that the responsibility of States -does not involve the duty to repair the losses which foreign subjects -have sustained through acts of insurgents and rioters. Individuals who -enter foreign territory must take the risk of an outbreak of -insurrections or riots just as the risk of the outbreak of other -calamities. When they sustain a loss from acts of insurgents or rioters, -they may, if they can, trace their losses to the acts of certain -individuals, and claim damages from the latter before the Courts of -Justice. The responsibility of a State for acts of private persons -injurious to foreign subjects reaches only so far that its Courts must -be accessible to the latter for the purpose of claiming damages from the -offenders, and must punish such of those acts as are criminal. And in -States which, as France for instance, have such Municipal Laws as make -the town or the county where an insurrection or riot has taken place -responsible for the pecuniary loss sustained by individuals during those -events, foreign subjects must be allowed to claim damages from the local -authorities for losses of such kind. But the State itself never has by -International Law a duty to pay such damages. - -[Footnote 264: See, for instance, Rivier, II. p. 43; Brusa in Annuaire -XVII. pp. 96-137; Bar in R.I. 2nd Ser. I. (1899), pp. 464-481.] - -The practice of the States agrees with this rule laid down by the -majority of writers. Although in some cases several States have paid -damages for losses of such kind, they have done it, not through -compulsion of law, but for political reasons. In most cases in which the -damages have been claimed for such losses, the respective States have -refused to comply with the request.[265] As such claims have during the -second half of the nineteenth century frequently been tendered against -American States which have repeatedly been the scene of insurrections, -several of these States have in commercial and similar treaties which -they concluded with other States expressly stipulated[266] that they are -not responsible for losses sustained by foreign subjects on their -territory through acts of insurgents and rioters. - -[Footnote 265: See the cases in Calvo, III. [p][p] 1283-1290.] - -[Footnote 266: See Martens, N.R.G. IX. p. 474 (Germany and Mexico); XV. -p. 840 (France and Mexico); XIX. p. 831 (Germany and Colombia); XXII. p. -308 (Italy and Colombia); and p. 507 (Italy and Paraguay).] - -The Institute of International Law has studied the matter and has -proposed[267] the following _Reglement_ concerning it:-- - - (1) Independently of the case in which indemnities are due to - foreigners by virtue of the general laws of the country, - foreigners have a right to compensation when they are injured as - to their person or as to their property in the course of a riot, - of an insurrection, or of a civil war: - - (_a_) When the act from which they have suffered is directed - against foreigners as such in general, or against them as under - the jurisdiction of a certain State, or - - (_b_) When the act from which they have suffered consists in - closing a port without due and proper previous notification, or in - retaining foreign ships in a port, or - - (_c_) When the injury is the result of an act contrary to the laws - committed by a government official, or - - (_d_) When the obligation to compensate is established by virtue - of the general principles of the law of war. - - (2) The obligation is equally well established when the injury has - been committed (No. 1, _a_ and _d_) on the territory of an - insurrectionary government, whether by this government itself, or - by one of its functionaries. - - On the other hand, certain demands for indemnity may be set aside - when they concern facts which occur after the government of the - State to which the injured person belongs has recognised the - insurrectionary government as a belligerent Power, and when the - injured person has continued to keep his domicile or his - habitation on the territory of the insurrectionary government. - - As long as the latter is considered by the government of the - person alleged to be injured as a belligerent Power, the demand - may only be addressed, in the case of paragraph 1 of article 2, to - the insurrectionary government and not to the legitimate - government. - - (3) The obligation to compensate disappears when the injured - persons are themselves a cause of the event which has brought the - injury.[268] Notably no obligation exists to indemnify those who - have returned to the country or who wish to give themselves up to - commerce or industry there, when they know, or ought to know, that - troubles have broken out, nor to indemnify those who establish - themselves or sojourn in a country which offers no security on - account of the presence of savage tribes, unless the government of - the country has given express assurance to immigrants. - - (4) The government of a Federal State composed of a certain number - of smaller States, which it represents from an international point - of view, may not plead, in order to avoid the responsibility which - falls upon it, the fact that the constitution of the Federal State - does not give it the right to control the member-States, nor the - right to exact from them the discharge of their obligations. - - (5) The stipulations mutually exempting States from the duty of - giving their diplomatic protection ought not to comprise the cases - of refusal of justice, or of evident violation of justice or of - International Law.[269] - -[Footnote 267: At its meeting at Neuchatel in 1900; see Annuaire, XVIII. -p. 254.] - -[Footnote 268: For example, in the case of conduct which is particularly -provocative to a crowd.] - -[Footnote 269: The Institute of International Law has likewise--see -Annuaire, XVIII. pp. 253 and 256--expressed the two following -_voeux_:-- - -(_a_) The Institute of International Law expresses the wish that the -States should avoid inserting in treaties clauses of reciprocal -irresponsibility. It considers that these clauses are wrong in exempting -States from the fulfilment of their duty of protecting their nationals -abroad and of their duty of protecting foreigners on their territory. It -considers that the States which, on account of extraordinary -circumstances, do not feel themselves at all in a position to assure -protection in a sufficiently efficacious manner to foreigners on their -territory, can only avoid the consequences of this condition of things -by temporarily prohibiting foreigners to enter their territory. - -(_b_) Recourse to international commissions of inquiry and to -international tribunals is in general recommended for all differences -which may arise on account of injury to foreigners in the course of a -riot, an insurrection, or of civil war.] - - - - -PART II - -THE OBJECTS OF THE LAW OF NATIONS - - - - -CHAPTER I - -STATE TERRITORY - - -I - -ON STATE TERRITORY IN GENERAL - - Vattel, II. [p][p] 79-83--Hall, [p] 30--Westlake, I. pp. - 84-88--Lawrence, [p][p] 71-72--Phillimore, I. [p][p] - 150-154--Twiss, I. [p][p] 140-144--Halleck, I. pp. - 150-156--Taylor, [p] 217--Wheaton, [p][p] 161-163--Moore, I. [p] - 125--Bluntschli, [p] 277--Hartmann, [p] 58--Holtzendorff in - Holtzendorff, II. pp. 225-232--Gareis, [p] 18--Liszt, [p] - 9--Ullmann, [p] 86--Heffter, [p][p] 65-68--Bonfils, No. - 483--Despagnet, Nos. 374-377--Pradier-Fodere, II. No. - 612--Merignhac, II. pp. 356-366--Nys, I. pp. 402-412--Rivier, I. - pp. 135-142--Calvo, I. [p][p] 260-262--Fiore, I. Nos. - 522-530--Martens, I. [p] 88--Del Bon, "Proprieta territoriale - degli Stati" (1867)--Fricker, "Vom Staatsgebiet" (1867). - -[Sidenote: Conception of State Territory.] - -[p] 168. State territory is that definite portion of the surface of the -globe which is subjected to the sovereignty of the State. A State -without a territory is not possible, although the necessary territory -may be very small, as in the case of the Free Town of Hamburg, the -Principality of Monaco, the Republic of San Marino, or the Principality -of Lichtenstein. A wandering tribe, although it has a Government and is -otherwise organised, is not a State before it has settled down on a -territory of its own. - -State territory is also named territorial property of a State. Yet it -must be borne in mind that territorial property is a term of Public Law -and must not be confounded with private property. The territory of a -State is not the property of the monarch, or of the Government, or even -of the people of a State; it is the country which is subjected to the -territorial supremacy or the _imperium_ of a State. This distinction -has, however, in former centuries not been sharply drawn.[270] In spite -of the _dictum_ of Seneca, "Omnia rex imperio possidet, singuli -dominio," the _imperium_ of the monarch and the State over the State -territory has very often been identified with private property of the -monarch or the State. But with the disappearance of absolutism this -identification has likewise disappeared. It is for this reason that -nowadays, according to the Constitutional Law of most countries, neither -the monarch nor the Government is able to dispose of parts of the State -territory at will and without the consent of Parliament.[271] - -[Footnote 270: And some writers refuse to draw it even nowadays, as, for -instance, Lawrence, [p] 71.] - -[Footnote 271: In English Constitutional Law this point is not settled. -The cession of the Island of Heligoland to Germany in 1890 was, however, -made conditional on the approval of Parliament.] - -It must, further, be emphasised that the territory of a State is totally -independent of the racial character of the inhabitants of the State. The -territory is the public property of the State, and not of a nation in -the sense of a race. The State community may consist of different -nations, as, for instance, the British or the Swiss or the Austrians. - -[Sidenote: Different kinds of Territory.] - -[p] 169. The territory of a State may consist of one piece of the surface -of the globe only, such as that of Switzerland. Such kind of territory -is named "integrate territory" (_territorium clausum_). But the -territory of a State may also be dismembered and consist of several -pieces, such as that of Great Britain. All States with colonies have a -"dismembered territory." - -If a territory or a piece of it is absolutely surrounded by the -territory of another State, it is named an "enclosure." Thus the -Republic of San Marino is an enclosure of Italy, and Birkenfeld, a piece -of the territory of the Grand Duchy of Oldenburg situated on the river -Rhine, is an enclosure of Prussia. - -Another distinction is that between motherland and colonies. Colonies -rank as territory of the motherland, although they may enjoy complete -self-government and therefore be called Colonial States. Thus, if viewed -from the standpoint of the Law of Nations, the Dominion of Canada, the -Commonwealth of Australia, New Zealand, and the Union of South Africa -are British territory. - -As regards the relation between the Suzerain and the Vassal State, it is -certain that the vassal is not, in the strict sense of the term, a part -of the territory of the suzerain. Crete and Egypt are not Turkish -territory, although under Turkish suzerainty. But no general rule can be -laid down, as everything depends on the merits of the special case, and -as the vassal, even if it has some footing of its own within the Family -of Nations, is internationally for the most part considered a mere -portion of the Suzerain State.[272] - -[Footnote 272: See above, [p] 91.] - -[Sidenote: Importance of State Territory.] - -[p] 170. The importance of State territory lies in the fact that it is the -space within which the State exercises its supreme authority. State -territory is an object of the Law of Nations because the latter -recognises the supreme authority of every State within its territory. -Whatever person or thing is on or enters into that territory, is _ipso -facto_ subjected to the supreme authority of the respective State -according to the old rules, _Quidquid est in territorio, est etiam de -territorio_ and _Qui in territorio meo est, etiam meus subditus est_. No -foreign authority has any power within the boundaries of the home -territory, although foreign Sovereigns and diplomatic envoys enjoy the -so-called privilege of exterritoriality, and although the Law of Nations -does, and international treaties may, restrict[273] the home authority -in many points in the exercise of its sovereignty. - -[Footnote 273: See above, [p][p] 126-128.] - -[Sidenote: One Territory, one State.] - -[p] 171. The supreme authority which a State exercises over its territory -makes it apparent that on one and the same territory can exist one -full-Sovereign State only. Two or more full-Sovereign States on one and -the same territory are an impossibility. The following five cases, of -which the Law of Nations is cognisant, are apparent, but not real, -exceptions to this rule. - -(1) There is, first, the case of the so-called _condominium_. It happens -sometimes that a piece of territory consisting of land or water is under -the joint _tenancy_ of two or more States, these several States -exercising sovereignty conjointly over such piece and the individuals -living thereon. Thus Schleswig-Holstein and Lauenburg from 1864 till -1866 were under the _condominium_ of Austria and Prussia. Thus, further, -Moresnet (Kelmis), on the frontier of Belgium and Prussia, is under the -_condominium_ of these two States[274] because they have not yet come to -an agreement regarding the interpretation of a boundary treaty of 1815 -between the Netherlands and Prussia. And since 1898 the Soudan is under -the _condominium_ of Great Britain and Egypt. It is easy to show that in -such cases[275] there are not two States on one and the same territory, -but pieces of territory, the destiny of which is not decided, and which -are kept separate from the territories of the interested States[276] -under a separate administration. Until a final settlement the interested -States do not exercise each an individual sovereignty over these pieces, -but they agree upon a joint administration under their conjoint -sovereignty. - -[Footnote 274: See Schroeder, "Das grenzstreitige Gebiet von Moresnet" -(1902).] - -[Footnote 275: The New Hebrides are materially likewise under a -_condominium_, namely, that of Great Britain and France, although -article 1 of the Convention of October 20, 1906--see Martens, N.R.G. 3rd -Ser. I. (1909), p. 523--speaks only of "a region of joint influence" -with regard to the New Hebrides. See Brunet, "Le Regime International -des Nouvelles-Hebrides" (1908), and Politis in R.G. XIV. (1907), pp. -689-759.] - -[Footnote 276: As regards the proposed _condominium_ over Spitzbergen, -see Waultrin in R.G. XV. (1908), pp. 80-105, and Piccioni in R.G. XVI. -(1909), pp. 117-134.] - -(2) The second case is that of the administration of a piece of -territory by a foreign Power, with the consent of the owner-State. Thus, -since 1878 the Turkish island of Cyprus has been under British -administration, and the then Turkish provinces of Bosnia and Herzegovina -were from 1878 to 1908 under the administration of Austria-Hungary. In -these cases a cession of pieces of territory has for all practical -purposes taken place, although in law the respective pieces still belong -to the former owner-State. Anyhow, it is certain that only one -sovereignty is exercised over these pieces--namely, the sovereignty of -the State which exercises administration. On the other hand, however, -the fact that in these cases pieces of territory have for all practical -purposes been ceded to another State does not empower the latter -arbitrarily to annex the territory without the consent of the State -owning it in law. Austria-Hungary had therefore no right to annex, in -1908, without the previous consent of Turkey, the provinces of Bosnia -and Herzegovina.[277] - -[Footnote 277: See above, [p] 50.] - -(3) The third case is that of a piece of territory leased or pledged by -the owner-State to a foreign Power. Thus, China in 1898 leased[278] the -district of Kiauchau to Germany, Wei-Hai-Wei and the land opposite the -island of Hong-Kong to Great Britain, and Port Arthur to Russia.[279] -Thus, further, in 1803 Sweden pledged the town of Wismar[280] to the -Grand Duchy of Mecklenburg-Schwerin, and the Republic of Genoa in 1768 -pledged the island of Corsica to France. All such cases comprise, for -all practical purposes, cessions of pieces of territory, but in strict -law they remain the property of the leasing State. And such property is -not a mere fiction, as some writers[281] maintain, for it is possible -that the lease comes to an end by expiration of time or by rescission. -Thus the lease, granted in 1894 by Great Britain to the former Congo -Free State, of the so-called Lado Enclave, was rescinded[282] in 1906. -However this may be, as long as the lease has not expired it is the -lease-holder who exercises sovereignty over the territory concerned. - -[Footnote 278: See below, [p] 216.] - -[Footnote 279: Russia in 1905, by the Peace Treaty of Portsmouth, -transferred her lease to Japan.] - -[Footnote 280: This transaction took place for the sum of 1,258,000 -thaler, on condition that Sweden, after the lapse of 100 years, should -be entitled to take back the town of Wismar on repayment of the money, -with 3 per cent. interest per annum. Sweden in 1903--see Martens, N.R.G. -2nd Ser. XXXI. (1905), pp. 572 and 574--formally waived her right to -retake the town.] - -[Footnote 281: See, for instance, Perrinjaquet in R.G. XVI. (1909), pp. -349-367.] - -[Footnote 282: By article 1 of the Treaty of London of May 9, 1906; see -Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 454.] - -(4) The fourth case is that of a piece of territory of which the use, -occupation, and control is in perpetuity granted by the owner-State to -another State with the exclusion of the exercise of any sovereign rights -over the territory concerned on the part of the grantor. In this -way[283] the Republic of Panama transferred, in 1903, to the United -States of America a ten-mile wide strip of territory for the purpose of -constructing, administrating, and defending the so-called Panama Canal. -In this case the grantor retains only in name the property of the -territory, the transfer of the land concerned is really cession all but -in name, and it is certain that only the grantee exercises sovereignty -there. - -[Footnote 283: See below, [p] 184, and Boyd in R.G. XVII. (1910), pp. -614-624.] - -(5) The fifth case is that of the territory of a Federal State. As a -Federal State is considered[284] a State of its own side by side with -its single member-States, the fact is apparent that the different -territories of the single member-States are at the same time -collectively the territory of the Federal State. But this fact is only -the consequence of the other illogical fact that sovereignty is divided -between a Federal State and its member-States. Two different -sovereignties are here by no means exercised over one and the same -territory, for so far as the Federal State possesses sovereignty the -member-States do not, and _vice versa_. - -[Footnote 284: See above, [p] 89.] - - -II - -THE DIFFERENT PARTS OF STATE TERRITORY - -[Sidenote: Real and Fictional parts of Territory.] - -[p] 172. To the territory of a State belong not only the land within the -State boundaries, but also the so-called territorial waters. They -consist of the rivers, canals, and lakes which water the land, and, in -the case of a State with a seacoast, of the maritime belt and certain -gulfs, bays, and straits of the sea. These different kinds of -territorial waters will be separately discussed below in [p][p] 176-197. In -contradistinction to these real parts of State territory there are some -things that are either in every point or for some part treated as though -they were territorial parts of a State. They are fictional and in a -sense only parts of the territory. Thus men-of-war and other public -vessels on the high seas as well as in foreign territorial waters are -essentially in every point treated as though they were floating parts of -their home State.[285] And the houses in which foreign diplomatic envoys -have their official residence are in many points treated as though they -were parts of the home States of the respective envoys.[286] Again, -merchantmen on the high seas are for some points treated as though they -were floating parts of the territory of the State under whose flag they -legitimately sail.[287] - -[Footnote 285: See below, [p] 450.] - -[Footnote 286: See below, [p] 390.] - -[Footnote 287: See below, [p] 264.] - -[Sidenote: Territorial Subsoil.] - -[p] 173. The subsoil beneath the territorial land and water[288] is of -importance on account of telegraph and telephone wires and the like, and -further on account of the working of mines and of the building of -tunnels. A special part of territory the territorial subsoil is not, -although this is frequently asserted. But it is a universally recognised -rule of the Law of Nations that the subsoil to an unbounded depth -belongs to the State which owns the territory on the surface. - -[Footnote 288: As regards the subsoil of the Open Sea, see below, [p][p] -287_c_ and 287_d_.] - -[Sidenote: Territorial Atmosphere.] - -[p] 174. The space of the territorial atmosphere is no more a special part -of territory than the territorial subsoil, but it is of the greatest -importance on account of wires for telegraphs, telephones, electric -traction, and the like; further on account of wireless telegraphy and of -aviation. - -(1) Nothing need be said concerning wires for telegraphs and the like, -except that obviously the territorial State can prevent neighbouring -States from making use of its territorial atmosphere for such wires. - -(2) As regards wireless telegraphy,[289] the "International Radiographic -Convention," signed at Berlin on November 3, 1906, represents an -agreement[290] of the signatory Powers concerning the exchange of -radio-telegrams on the part of coast stations and ship stations, but it -contains no stipulation respecting the question in general whether the -territorial State is compelled to allow the passage over its territory -of waves emanating from a foreign wireless telegraphy station. There -ought to be no doubt that no such compulsion exists according to -customary International Law, and that therefore the territorial State -can prevent the passage of such waves[291] over its territory. - -[Footnote 289: See Meili, "Die drahtlose Telegraphie, &c." (1908); -Schneeli, "Drahtlose Telegraphie und Voelkerrecht" (1908); Landsberg, -"Die drahtlose Telegraphie" (1909); Kausen, "Die drahtlose Telegraphie -im Voelkerrecht" (1910); Rolland in R.G. XIII. (1906), pp. 58-92; -Fauchille in Annuaire, XXI. (1906), pp. 76-87; Bonfils, Nos. 531{10} and -531{11}; Despagnet, No. 433 _quater_; Meurer and Boidin in R.G. XVI. -(1909), pp. 76 and 261.] - -[Footnote 290: See below, [p][p] 287_a_, 287_b_, and 582, No. 4.] - -[Footnote 291: The Institute of International Law--see Annuaire, XXI. -(1906), p. 328--proposes by art. 3 of its "Regime de la Telegraphie sans -fil" to restrict the power of the territorial State to exclude such -waves from passing over its territory to the case in which the exclusion -is necessary in the interest of its security.] - -(3) The space of the territorial atmosphere is of particular importance -with regard to aviation, but no customary or conventional rules of -International Law are as yet in existence which settle the very much -controverted[292] matter. An international conference for the purpose of -agreeing upon an international convention concerning aviation met in -1910 at Paris, but did not produce any result. The fact is that, since -aviation is still in its infancy, practical experience is lacking -concerning many questions which can only be settled when aviation has -been more developed. It is tempting to apply the rules concerning the -maritime belt and the Open Sea analogously to the space of the -atmosphere, and, therefore, to distinguish between a zone of a certain -height, in which the territorial State can exercise sovereignty, and, on -the other hand, the atmosphere beyond that height, which is to be -considered free like the Open Sea. This comparison between the -atmosphere and the sea is, however, faulty for two reasons. Firstly, the -Open Sea is an international highway that connects distant lands between -which, except by sea, no communication would be possible, whereas the -atmosphere is not such an indispensable highway. Secondly, navigation on -the Open Sea comprises no danger whatever to the security of the -different States and the lives and property of their inhabitants, -whereas aviation threatens such danger to a great extent. The chief -question at issue is, therefore, whether the territorial State should or -should not be considered to exercise sovereignty over the space of the -atmosphere to an unbounded height, and to have the power to prevent the -passage of foreign aviators altogether, or to enact stringent rules with -which they have to comply. It would probably be best for the States in -conference to adopt such rules concerning the whole space of the -atmosphere as are similar to those valid by customary International Law -for the maritime belt, that is:--to recognise, on the one hand, -sovereignty of the territorial State over the space of its atmosphere, -but, on the other hand, to give a right to foreign States to demand from -the territorial State that foreign private--but not public!--air-vessels -may pass through its atmosphere, provided they comply with the rules -enacted by the territorial State for the aerial traffic.[293] - -[Footnote 292: The literature on aviation is abundant, see Holtzendorff, -II. p. 230; Lawrence, [p] 73; Bonfils, Nos. 531{1}-531{9}; Despagnet, Nos. -433 _bis_ and 433 _ter_; Merignhac, II. pp. 398-410; Nys, I. pp. -523-532; Gruenwald, "Das Luftschiff, &c." (1908); Meili, "Das Luftschiff, -&c." (1908); Meurer, "Luftschiffahrtsrecht" (1909); Meyer, "Die -Erschliessung des Luftraums und ihre rechtlichen Folgen" (1909); -Magnani, "Il diritto sullo spazio aereo e l'aeronautica" (1909); Leech, -"The Jurisprudence of the Air" (1910), a reprint from the _Journal of -the Royal Artillery_, vol. XXXVII.; Lycklama a Nijeholt, "Air -Sovereignty" (1910); Hazeltine, "The Law of the Air" (1911); Bielenberg, -"Die Freiheit des Luftraums" (1911); Catellani, "Il diritto aereo" -(1911); Sperl, "Die Luftschiffahrt, &c." (1911); Loubeyre, "Les -principes du droit aerien" (1911); Fauchille in Annuaire, XIX. (1902) -pp. 19-114, XXIV. (1911), and in R.G. VIII. (1901), pp. 414-485, XVII. -(1910), pp. 55-62; Zitelmann in the _Zeitschrift fuer internationales -Privat- und Oeffentliches Recht_, XIX. (1909), pp. 458-496; Baldwin and -Kuhm in A.J. IV. (1910), pp. 95-108, 109-132; Baldwin in Z.V. V. (1911), -pp. 394-399.] - -[Footnote 293: The Institute of International Law is studying the -question of aviation, and passed, in 1911, at its meeting in Madrid, -some rules concerning the "Regime juridiques des Aeronefs"; see -Annuaire, XXIV. (1911).] - -Aviation through the atmosphere above the Open Sea will require special -regulation on account of the dangers to the vessels of all nations -traversing the sea, as will also aviation in general in time of war. - -[Sidenote: Inalienability of Parts of Territory.] - -[p] 175. It should be mentioned that not every part of territory is -alienable by the owner-State. For it is evident that the territorial -waters are as much inseparable appurtenances of the land as are the -territorial subsoil and atmosphere. Only pieces of land together with -the appurtenant territorial waters are alienable parts of -territory.[294] There is, however, one exception to this, since boundary -waters[295] may wholly belong to one of the riparian States, and may -therefore be transferred through cession from one to the other riparian -State without the bank itself. But it is obvious that this is only an -apparent, not a real, exception to the rule that territorial waters are -inseparable appurtenances of the land. For boundary waters that are -ceded to the other riparian State remain an appurtenance of land, -although they are now an appurtenance of the one bank only. - -[Footnote 294: See below, [p] 185.] - -[Footnote 295: See below, [p] 199.] - - -III - -RIVERS - - Grotius, II. c. 2, [p][p] 11-15--Pufendorf, III. c. 3, [p] 8--Vattel, - II. [p][p] 117, 128, 129, 134--Hall, [p] 39--Westlake, I. pp. - 142-159--Lawrence, [p] 92--Phillimore, I. [p][p] 125-151--Twiss, I. [p] - 145--Halleck, I. pp. 171-177--Taylor, [p][p] 233-241--Walker, [p] - 16--Wharton, I. [p] 30--Moore, I. [p][p] 128-132--Wheaton, [p][p] - 192-205--Bluntschli, [p][p] 314, 315--Hartmann, [p] 58--Heffter, [p] - 77--Caratheodory in Holtzendorff, II. pp. 279-406--Gareis, [p] - 20--Liszt, [p][p] 9 and 27--Ullmann, [p][p] 87 and 105--Bonfils, Nos. - 520-531--Despagnet, Nos. 419-421--Merignhac, II. pp. - 605-632--Pradier-Fodere, II. Nos. 688-755--Nys, I. pp. 438-441, - and II. pp. 109-131--Rivier, I. p. 142 and [p] 14--Calvo, I. [p][p] - 302-340--Fiore, II. Nos. 755-776, and Code, [p][p] 283-285 and - 976-982--Martens, I. [p] 102, II. [p] 57--Delavaud, "Navigation ... - sur les fleuves internationaux" (1885)--Engehardt, "Du regime - conventionnel des fleuves internationaux" (1879), and "Histoire du - droit fluvial conventionnel" (1889)--Vernesco, "Des fleuves en - droit international" (1888)--Orban, "Etude sur le droit fluvial - international" (1896)--Berges, "Du regime de navigation des - fleuves internationaux" (1902)--Lopez, "Regimen internacional de - los rios navigables" (1905)--Huber in Z.V. I. (1906), pp. 29 and - 159--Hyde in A.J. IV. (1910), pp. 145-155. - -[Sidenote: Rivers State property of Riparian States.] - -[p] 176. Theory and practice agree upon the rule that rivers are part of -the territory of the riparian State. Consequently, if a river lies -wholly, that is, from its source to its mouth, within the boundaries of -one and the same State, such State owns it exclusively. As such rivers -are under the sway of one State only and exclusively, they are named -"national rivers." Thus, all English, Scotch, and Irish rivers are -national, and so are, to give some Continental examples, the Seine, -Loire, and Garonne, which are French; the Tiber, which is Italian; the -Volga, which is Russian. But many rivers do not run through the land of -one and the same State only, whether they are so-called "boundary -rivers," that is, rivers which separate two different States from each -other, or whether they run through several States and are therefore -named "not-national rivers." Such rivers are not owned by one State -alone. Boundary rivers belong to the territory of the States they -separate, the boundary line[296] running either through the middle of -the river or through the middle of the so-called mid-channel of the -river. And rivers which run through several States belong to the -territories of the States concerned; each State owns that part of the -river which runs through its territory. - -[Footnote 296: See below, [p] 199, and Huber in Z.V. I. (1906), pp. 29 and -159.] - -There is, however, another group of rivers to be mentioned, which -comprises all such rivers as are navigable from the Open Sea and at the -same time either separate or pass through several States between their -sources and their mouths. Such rivers, too, belong to the territory of -the different States concerned, but they are nevertheless named -"international rivers," because freedom of navigation in time of peace -on all of those rivers in Europe and on many of them outside Europe for -merchantmen of all nations is recognised by International Law. - -[Sidenote: Navigation on National, Boundary and not-National Rivers.] - -[p] 177. There is no rule of the Law of Nations in existence which grants -foreign States the right of admittance of their public or private -vessels to navigation on national rivers. In the absence of commercial -or other treaties granting such a right, every State can exclude foreign -vessels from its national rivers or admit them under certain conditions -only, such as the payment of a due and the like. The teaching of Grotius -(II. c. 2, [p] 12) that innocent passage through rivers must be granted -has not been recognised by the practice of the States, and Bluntschli's -assertion ([p] 314) that such rivers as are navigable from the Open Sea -must in time of peace be open to vessels of all nations, is at best an -anticipation of a future rule of International Law, it does not as yet -exist. - -As regards boundary rivers and rivers running through several States, -the riparian States[297] can regulate navigation on such parts of these -rivers as they own, and they can certainly exclude vessels of -non-riparian States altogether unless prevented therefrom by virtue of -special treaties. - -[Footnote 297: See below, [p] 178_a_.] - -[Sidenote: Navigation on International Rivers.] - -[p] 178. Whereas there is certainly no recognised principle of free -navigation on national, boundary, and not-national rivers, a movement -for the recognition of free navigation on international rivers set in at -the beginning of the nineteenth century. Until the French Revolution -towards the end of the eighteenth century, the riparian States of such -rivers as are now called international rivers could, in the absence of -special treaties, exclude foreign vessels altogether from those parts of -the rivers which run through their territory, or admit them under -discretionary conditions. Thus, the river Scheldt was wholly shut up in -favour of the Netherlands according to article 14 of the Peace Treaty of -Munster of 1648 between the Netherlands and Spain. The development of -things in the contrary direction begins with a Decree of the French -Convention, dated November 16, 1792, which opens the rivers Scheldt and -Meuse to the vessels of all riparian States. But it was not until the -Vienna Congress[298] in 1815 that the principle of free navigation on -the international rivers of Europe by merchantmen of not only the -riparian but of all States was proclaimed. The Congress itself realised -theoretically that principle in making arrangements[299] for free -navigation on the rivers Scheldt, Meuse, Rhine, and on the navigable -tributaries of the latter--namely, the rivers Neckar, Maine, and -Moselle--although more than fifty years elapsed before the principle -became realised in practice. - -[Footnote 298: Articles 108-117 of the Final Act of the Vienna Congress; -see Martens, N.R. II. p. 427.] - -[Footnote 299: "Reglements pour la libre navigation des rivieres"; see -Martens, N.R. II. p. 434.] - -The next step was taken by the Peace Treaty of Paris of 1856, which by -its article 15[300] stipulated free navigation on the Danube and -expressly declared the principle of the Vienna Congress regarding free -navigation on international rivers for merchantmen of all nations as a -part of "European Public Law." A special international organ for the -regulation of navigation on the Danube was created, the so-called -European Danube Commission. - -[Footnote 300: See Martens, N.R.G. XV. p. 776. The documents concerning -navigation on the Danube are collected by Sturdza, "Recueil de documents -relatifs a la liberte de navigation du Danube" (Berlin, 1904).] - -A further development took place at the Congo Conference at Berlin in -1884-85, since the General Act[301] of this Conference stipulated free -navigation on the rivers Congo and Niger and their tributaries, and -created the so-called "International Congo Commission" as a special -international organ for the regulation of the navigation of the said -rivers. - -[Footnote 301: See Martens, N.R.G. 2nd Ser. X. p. 417.] - -Side by side with these general treaties, which recognise free -navigation on international rivers, stand treaties[302] of several South -American States with other States concerning free navigation for -merchantmen of all nations on a number of South American rivers. And the -Arbitration Court in the case of the boundary dispute between Great -Britain and Venezuela decided in 1903 in favour of free navigation for -merchantmen of all nations on the rivers Amakourou and Barima. - -[Footnote 302: See Taylor, [p] 238, and Moore, I. [p] 131, pp. 639-651.] - -Thus the principle of free navigation, which is a settled fact as -regards all European and some African international rivers, becomes more -and more extended over all other international rivers of the world. But -when several writers maintain that free navigation on all international -rivers of the world is already a recognised rule of the Law of Nations, -they are decidedly wrong, although such a universal rule will certainly -be proclaimed in the future. There can be no doubt that as regards the -South American rivers the principle is recognised by treaties between a -small number of Powers only. And there are examples which show that the -principle is not yet universally recognised. Thus by article 4 of the -Treaty of Washington of 1854 between Great Britain and the United States -the former grants to vessels of the latter free navigation on the river -St. Lawrence as a revocable privilege, and article 26 of the Treaty of -Washington of 1871 stipulates for vessels of the United States, but not -for vessels of other nations, free navigation "for ever" on the same -river.[303] - -[Footnote 303: See Wharton, pp. 81-83; Moore, I. [p] 131, p. 631, and -Hall, [p] 39.] - -However this may be, the principle of free navigation embodies the rule -that vessels of all nations must be admitted without payment of any dues -whatever. Yet this principle does not exclude the levy of dues from all -navigating vessels for expenses incurred by the riparian States for such -improvements of the navigability of rivers as embankments, breakwaters, -and the like.[304] - -[Footnote 304: As regards the question of levying dues for navigation of -the rivers Rhine and Elbe, see Arndt in Z.V. IV. (1910), pp. 208-229.] - -I should mention that the Institute of International Law, at its meeting -at Heidelberg in 1888, adopted a _Projet de Reglement international de -navigation fluviale_,[305] which comprises forty articles. - -[Footnote 305: See Annuaire, IX. p. 182.] - -[Sidenote: Utilisation of the flow of rivers.] - -[p] 178_a_. Apart from navigation on rivers, the question of the -utilisation of the flow of rivers is of importance. With regard to -national rivers, the question can not indeed be raised, since the local -State is absolutely unhindered in the utilisation of the flow. But the -flow of not-national, boundary, and international rivers is not within -the arbitrary power of one of the riparian States, for it is a rule of -International Law[306] that no State is allowed to alter the natural -conditions of its own territory to the disadvantage of the natural -conditions of the territory of a neighbouring State. For this reason a -State is not only forbidden to stop or to divert the flow of a river -which runs from its own to a neighbouring State, but likewise to make -such use of the water of the river as either causes danger to the -neighbouring State or prevents it from making proper use[307] of the -flow of the river on its part. Since, apart from special treaties -between neighbouring countries concerning special cases, neither -customary nor conventional detailed rules of International Law -concerning this subject are in existence, the Institute of International -Law, at its meeting at Madrid[308] in 1911, adopted the following -"_Reglementation internationale des cours d'eau internationaux au point -de vue de leur force motrice et de leur utilisation industrielle ou -agricole_":-- - - I. When a stream of water forms the frontier of two States, - neither State may, without the consent of the other, and in the - absence of a special and valid legal title, make any changes - prejudicial to the bank of the other State, nor allow such changes - to be made by individuals, societies, &c. Moreover, neither State - may on its own territory utilise the water, or allow it to be - utilised, in such a manner as to cause great damage to its - utilisation by the other State or by the individuals, societies, - &c., of the other. - - The foregoing conditions are also applicable when a lake is - situated between territories of more than two States. - - II. When a stream of water traverses successively the territories - of two or of several States:-- - - (1) The point at which this stream of water traverses the - frontiers of the two States, whether natural or from time - immemorial, may not be changed by the establishments of one of the - States without the assent of the other. - - (2) It is forbidden to make any alteration injurious to the - water, or to throw in injurious matter (coming from factories, - &c.). - - (3) Water may not be withdrawn by the establishments (especially - factories for the working of hydraulic pressure) in such a - quantity as to modify greatly the constitution, or, in other - words, the utilisable character or the essential character, of the - stream of water on its arrival at the territory nearer the mouth - of the river. - - The right of navigation by virtue of a title recognised by - International Law cannot be restricted by any usage whatever. - - (4) A State farther down the river may not make, or allow to be - made, in its territory any constructions or establishments which - might cause danger of flooding a State farther up the river. - - (5) The foregoing rules are applicable in the same way to the case - in which streams of water flow from a lake, which is situated in - one territory, into the territory of another State or the - territories of other States. - - (6) It is recommended that the States concerned appoint common - permanent Commissions which may give decisions, or at least may - give their advice, when such new establishments are built, or when - such modifications are made in the existing establishments, as may - influence the flow of the stream of water situated on the - territory of another State. - -[Footnote 306: See above, [p] 127.] - -[Footnote 307: See, for instance, the treaty of Washington of January -11, 1909--Martens, N.R.G. 3rd Ser. (1911), p. 208--between Great Britain -and the United States concerning the utilisation of the boundary waters -between the United States and Canada.] - -[Footnote 308: See Annuaire, XXIV. (1911). See also Bar in R.G. XVII. -(1910), pp. 281-288.] - - -IV - -LAKES AND LAND-LOCKED SEAS - - Vattel, I. [p] 294--Hall, [p] 38--Phillimore, I. [p][p] - 205-205A--Twiss, I. [p] 181--Halleck, I. p. 170--Moore, I. [p][p] - 135-143--Bluntschli, [p] 316--Hartmann, [p] 58--Heffter, [p] - 77--Caratheodory in Holtzendorff, II. pp. 378-385--Gareis, [p][p] - 20-21--Liszt, [p] 9--Ullmann, [p][p] 88 and 106--Bonfils, Nos. - 495-505--Despagnet, No. 407--Merignhac, II. - 587-596--Pradier-Fodere, II. Nos. 640-649--Nys, I. pp. - 447-450--Calvo, I. [p][p] 301, 373, 383--Fiore, II. Nos. 811-813, - and Code, Nos. 279 and 1000--Martens, I. [p] 100--Rivier, I. pp. - 143-145, 230--Mischeff, "La Mer Noire et les detroits de - Constantinople" (1901)--Hunt in A.J. IV. (1910), pp. 285-313. - -[Sidenote: Lakes and land-locked seas State Property of Riparian -States.] - -[p] 179. Theory and practice agree upon the rule that such lakes and -land-locked seas as are entirely enclosed by the land of one and the -same State are part of the territory of this State. Thus the Dead Sea in -Palestine is Turkish, the Sea of Aral is Russian, the Lake of Como is -Italian territory. As regards, however, such lakes and land-locked seas -as are surrounded by the territories of several States, no unanimity -exists. The majority of writers consider these lakes and land-locked -seas parts of the surrounding territories, but several[309] dissent, -asserting that these lakes and seas do not belong to the riparian -States, but are free like the Open Sea. The practice of the States seems -to favour the opinion of the majority of writers, for special treaties -frequently arrange what portions of such lakes and seas belong to the -riparian States.[310] Examples are:--The Lake of Constance,[311] which -is surrounded by the territories of Germany (Baden, Wuertemberg, -Bavaria), Austria, and Switzerland (Thurgau and St. Gall); the Lake of -Geneva, which belongs to Switzerland and France; the Lakes of Huron, -Erie, and Ontario, which belong to British Canada and the United States; -the Caspian Sea, which belongs to Persia and Russia.[312] - -[Footnote 309: See, for instance, Calvo, I. [p] 301; Caratheodory in -Holtzendorff, II. p. 378.] - -[Footnote 310: As regards the utilisation of the flow of such lakes and -seas, the same is valid as that concerning the utilisation of the flow -of rivers; see above, [p] 178_a_.] - -[Footnote 311: See Stoffel, "Die Fischerei-Verhaeltnisse des Bodensees -unter besonderer Beruecksichtigung der an ihm bestehenden Hoheitsrechte" -(1906).] - -[Footnote 312: But the Caspian Sea is almost entirely under Russian -control through the two treaties of Gulistan (1813) and Tourkmantschai -(1828). See Rivier, I. p. 144, and Phillimore, I. [p] 205.] - -[Sidenote: So-called International Lakes and Land-locked Seas.] - -[p] 180. In analogy with so-called international rivers, such lakes and -land-locked seas as are surrounded by the territories of several States -and are at the same time navigable from the Open Sea, are called -"international lakes and land-locked seas." However, although some -writers[313] dissent, it must be emphasised that hitherto the Law of -Nations has not recognised the principle of free navigation on such -lakes and seas. The only case in which such free navigation is -stipulated is that of the lakes within the Congo district.[314] But -there is no doubt that in a near future this principle will be -recognised, and practically all so-called international lakes and -land-locked seas are actually open to merchantmen of all nations. Good -examples of such international lakes and land-locked seas are the -fore-named lakes of Huron, Erie, and Ontario. - -[Footnote 313: See, for instance, Rivier, I. p. 230; Caratheodory in -Holtzendorff, II. p. 378; Calvo, I. [p] 301.] - -[Footnote 314: Article 15 of the General Act of the Congo Conference. -(See Martens, N.R.G. 2nd Ser. X. p. 417.)] - -[Sidenote: The Black Sea.] - -[p] 181. It is of interest to give some details regarding the Black Sea. -This is a land-locked sea which was undoubtedly wholly a part of Turkish -territory as long as the enclosing land was Turkish only, and as long as -the Bosphorus and the Dardanelles, the approach to the Black Sea, which -are exclusively part of Turkish territory, were not open for merchantmen -of all nations. But matters have changed through Russia, Roumania, and -Bulgaria having become littoral States. It would be wrong to maintain -that now the Black Sea belongs to the territories of the four States, -for the Bosphorus and the Dardanelles, although belonging to Turkish -territory, are nevertheless parts of the Mediterranean Sea, and are now -open to merchantmen of all nations. The Black Sea is consequently now -part of the Open Sea[315] and is not the property of any State. Article -11 of the Peace Treaty of Paris,[316] 1856, neutralised the Black Sea, -declared it open to merchantmen of all nations, but interdicted it to -men-of-war of the littoral as well as of other States, admitting only a -few Turkish and Russian public vessels for the service of their coasts. -But although the neutralisation was stipulated "formally and in -perpetuity," it lasted only till 1870. In that year, during the -Franco-German War, Russia shook off the restrictions of the Treaty of -Paris, and the Powers assembled at the Conference of London signed on -March 13, 1871, the Treaty of London,[317] by which the neutralisation -of the Black Sea and the exclusion of men-of-war therefrom were -abolished. But the right of the Porte to forbid foreign men-of-war -passage through the Dardanelles and the Bosphorus[318] was upheld by -that treaty, as was also free navigation for merchantmen of all nations -on the Black Sea. - -[Footnote 315: See below, [p] 252.] - -[Footnote 316: See Martens, N.R.G. XV. p. 775.] - -[Footnote 317: See Martens, N.R.G. XVIII. p. 303.] - -[Footnote 318: See below, [p] 197.] - - -V - -CANALS - - Westlake, I. pp. 320-331--Lawrence, [p] 90, and Essays, pp. - 41-162--Phillimore, I. [p][p] 399 and 207--Moore, III. [p][p] - 336-371--Caratheodory in Holtzendorff, II. pp. 386-405--Liszt, [p] - 27--Ullmann, [p] 106--Bonfils, Nos. 511-515--Despagnet, No. - 418--Merignhac, II. pp. 597-604--Pradier-Fodere, II. Nos. - 658-660--Nys, I. pp. 475-495--Rivier, I. [p] 16--Calvo, I. [p][p] - 376-380--Fiore, Code, Nos. 983-987--Martens, II. [p] 59--Sir Travers - Twiss in R.I. VII. (1875), p. 682, XIV. (1882), p. 572, XVII. - (1885), p. 615--Holland, Studies, pp. 270-298--Asser in R.I. XX. - (1888), p. 529--Bustamante in R.I. XXVII. (1895), p. - 112--Rossignol, "Le Canal de Suez" (1898)--Camand, "Etude sur le - regime juridique du Canal de Suez" (1899)--Charles-Roux, "L'Isthme - et le canal de Suez" (1901)--Othalom, "Der Suezkanal" - (1905)--Mueller-Heymer, "Der Panamakanal in der Politik der - Vereinigten Staaten" (1909)--Arias, "The Panama Canal" - (1911)--Hains, Davis, Knapp, Wambough, Olney, and Kennedy in A.J. - III. (1909), pp. 354 and 885, IV. (1910), p. 314, V. (1911), pp. - 298, 615, 620. - -[Sidenote: Canals State Property of Riparian States] - -[p] 182. That canals are parts of the territories of the respective -territorial States is obvious from the fact that they are artificially -constructed waterways. And there ought to be no doubt[319] that all the -rules regarding rivers must analogously be applied to canals. The matter -would need no special mention at all were it not for the interoceanic -canals which have been constructed during the second half of the -nineteenth century or are contemplated in the future. And as regards two -of these, the Emperor William (Kiel or Baltic) Canal, which connects the -Baltic with the North Sea, and the Corinth Canal, which connects the -Gulf of Corinth with the Gulf of Aegina, there is not much to be said. -The former is a canal made mainly for strategic purposes by the German -Empire entirely through German territory. Although Germany keeps it open -for navigation to vessels of all other nations, she exclusively controls -the navigation thereof, and can at any moment exclude foreign vessels at -discretion, or admit them upon any conditions she likes, apart from -special treaty arrangements to the contrary. The Corinth Canal is -entirely within the territory of Greece, and although the canal is kept -open for navigation to vessels of all nations, Greece exclusively -controls the navigation thereof. - -[Footnote 319: See, however, Holland, Studies, p. 278.] - -[Sidenote: The Suez Canal.] - -[p] 183. The most important of the interoceanic canals is that of Suez, -which connects the Red Sea with the Mediterranean. Already in 1838 -Prince Metternich gave his opinion that such a canal, if ever made, -ought to become neutralised by an international treaty of the Powers. -When, in 1869, the Suez Canal was opened, jurists and diplomatists at -once discussed what means could be found to secure free navigation upon -it for vessels of all kinds and all nations in time of peace as well as -of war. In 1875 Sir Travers Twiss[320] proposed the neutralisation of -the canal, and in 1879 the Institute of International Law gave its -vote[321] in favour of the protection of free navigation on the canal by -an international treaty. In 1883 Great Britain proposed an international -conference to the Powers for the purpose of neutralising the canal, but -it took several years before an agreement was actualised. This was done -by the Convention of Constantinople[322] of October 29, 1888, between -Great Britain, Austria-Hungary, France, Germany, Holland, Italy, Spain, -Russia, and Turkey. This treaty comprises seventeen articles, whose more -important stipulations are the following:-- - -[Footnote 320: See R.I. VII. pp. 682-694.] - -[Footnote 321: See Annuaire, III. and IV. vol. I. p. 349.] - -[Footnote 322: See Martens, N.R.G. 2nd, Ser. XV. p. 557. It must, -however, be mentioned that Great Britain is a party to the Convention of -Constantinople under the reservation that its terms shall not be brought -into operation in so far as they would not be compatible with the -transitory and exceptional condition in which Egypt is put for the time -being in consequence of her occupation by British forces, and in so far -as they might fetter the liberty of action of the British Government -during the occupation of Egypt. But article 6 of the Declaration -respecting Egypt and Morocco signed at London on April 8, 1904, by Great -Britain and France (see Parliamentary Papers, France, No. 1 (1904), p. -9), has done away with this reservation, since it stipulates the -following:--"In order to ensure the free passage of the Suez Canal, his -Britannic Majesty's Government declare that they adhere to the -stipulations of the Treaty of October 29, 1888, and that they agree to -their being put in force. The free passage of the canal being thus -guaranteed, the execution of the last sentence of paragraph 1 as well as -of paragraph 2 of article 8 of that treaty will remain in abeyance." -(See Holland, Studies, p. 293, and Westlake, I. p. 328.)] - -(1) The canal is open in time of peace as well as of war to merchantmen -and men-of-war of all nations. No attempt to restrict this free usage of -the canal is allowed in time either of peace or of war. The canal can -never be blockaded (article 1). - -(2) In time of war, even if Turkey is a belligerent, no act of hostility -is allowed either inside the canal itself or within three sea miles from -its ports. Men-of-war of the belligerents have to pass through the canal -without delay. They may not stay longer than twenty-four hours, a case -of absolute necessity excepted, within the harbours of Port Said and -Suez, and twenty-four hours must intervene between the departure from -those harbours of a belligerent man-of-war and a vessel of the enemy. -Troops, munitions, and other war material may neither be shipped nor -unshipped within the canal and its harbours. All rules regarding -belligerents' men-of-war are likewise valid for their prizes (articles -4, 5, 6). - -(3) No men-of-war are allowed to be stationed inside the canal, but each -Power may station two men-of-war in the harbours of Port Said and Suez. -Belligerents, however, are not allowed to station men-of-war in these -harbours (article 7). No permanent fortifications are allowed in the -canal (article 2). - -(4) It is the task of Egypt to secure the carrying out of the stipulated -rules, but the consuls of the Powers in Egypt are charged to watch the -execution of these rules (articles 8 and 9). - -(5) The signatory Powers are obliged to notify the treaty to others and -to invite them to accede thereto (article 16). - -[Sidenote: The Panama Canal.] - -[p] 184. Already in 1850 Great Britain and the United States in the -Clayton-Bulwer Treaty[323] of Washington had stipulated the free -navigation and neutralisation of a canal between the Pacific and the -Atlantic Ocean proposed to be constructed by the way of the river St. -Juan de Nicaragua and either or both of the lakes of Nicaragua and -Managua. In 1881 the building of a canal through the Isthmus of Panama -was taken in hand, but in 1888 the works were stopped in consequence of -the financial collapse of the Company undertaking its construction. -After this the United States came back to the old project of a canal by -the way of the river St. Juan de Nicaragua. For the eventuality of the -completion of this canal, Great Britain and the United States signed, on -February 5, 1900, the Convention of Washington, which stipulated free -navigation on and neutralisation of the proposed canal in analogy with -the Convention of Constantinople, 1888, regarding the Suez Canal, but -ratification was refused by the Senate of the United States. In the -following year, however, on November 18, 1901, another treaty was signed -and afterwards ratified. This so-called Hay-Pauncefote Treaty[324] -applies to a canal between the Atlantic and Pacific Oceans by whatever -route may be considered expedient, and its five articles are the -following:-- - -[Footnote 323: See Martens, N.R.G. XV. p. 187, and Moore, III. [p][p] -351-365. According to its article 8 this treaty was also to be applied -to a proposed canal through the Isthmus of Panama.] - -[Footnote 324: See Moore, III. [p][p] 366-368.] - - Article 1 - - The High Contracting Parties agree that the present Treaty shall - supersede the aforementioned Convention of April 19, 1850. - - Article 2 - - It is agreed that the canal may be constructed under the auspices - of the Government of the United States, either directly at its own - cost, or by gift or loan of money to individuals or corporations, - or through subscription to or purchase of stock or shares, and - that, subject to the provisions of the present Treaty, the said - Government shall have and enjoy all the rights incident to such - construction, as well as the exclusive right of providing for the - regulation and management of the canal. - - Article 3 - - The United States adopts, as the basis of the neutralisation of - such ship canal, the following Rules, substantially as embodied in - the Convention of Constantinople, signed October 29, 1888, for the - free navigation of the Suez Canal, that is to say:-- - - 1. The canal shall be free and open to the vessels of commerce and - of war of all nations observing these Rules, on terms of entire - equality, so that there shall be no discrimination against any - such nation, or its citizens or subjects, in respect of the - conditions or charges of traffic, or otherwise. Such conditions - and charges of traffic shall be just and equitable. - - 2. The canal shall never be blockaded, nor shall any right of war - be exercised or any act of hostility be committed within it. The - United States, however, shall be at liberty to maintain such - military police along the canal as may be necessary to - protect[325] it against lawlessness and disorder. - - [Footnote 325: This does not mean that the United States have a - right permanently to fortify the canal. Such a right has likewise - been deduced from article 23 of the Hay-Varilla Treaty of November - 18, 1903, which runs:--"If it should become necessary at any time - to employ armed forces for the safety or protection of the canal, - or of the ships that make use of the same, or the railways and - auxiliary works, the United States shall have the right, at all - times in its discretion, to use its police and its land and naval - forces or to establish fortifications for these purposes." - However, it would seem that by this article 23 only temporary - fortifications are contemplated. On the other hand, if read by - itself, article 3 of the Hay-Varilla Treaty, according to which - the Republic of Panama grants to the United States all the rights, - power, and authority which the United States would possess and - exercise if she were the sovereign of the territory concerned, - could be quoted as indirectly empowering the United States to - fortify the Panama Canal permanently. But the question is whether - article 3 must not be interpreted in connection with article 23. - The fact that article 23 stipulates expressly the power of the - United States temporarily to establish fortifications would seem - to indicate that it was intended to exclude permanent - fortifications. The question of the fortification of the Panama - Canal is discussed by Hains (_contra_) and Davis (_pro_) in A.J. - III. (1909), pp. 354-394 and pp. 885-908, and by Olney, Wambough, - and Kennedy in A.J. V. (1911), pp. 298, 615, 620.] - - 3. Vessels of war of a belligerent shall not revictual nor take - any stores in the canal except so far as may be strictly - necessary; and the transit of such vessels through the canal - shall be effected with the least possible delay in accordance with - the regulations in force, and with only such intermission as may - result from the necessities of the service. - - Prizes shall be in all respects subject to the same rules as - vessels of war of belligerents. - - 4. No belligerent shall embark or disembark troops, munitions of - war, or warlike materials in the canal, except in case of - accidental hindrance of the transit, and in such case the transit - shall be resumed with all possible despatch. - - 5. The provisions of this article shall apply to waters adjacent - to the canal, within three marine miles of either end. Vessels of - war of a belligerent shall not remain in such waters longer than - twenty-four hours at any one time except in case of distress, and - in such case shall depart as soon as possible; but a vessel of war - of one belligerent shall not depart within twenty-four hours from - the departure of a vessel of war of the other belligerent. - - 6. The plant, establishments, buildings and all works necessary to - the construction, maintenance, and operation of the canal shall be - deemed to be part thereof, for the purposes of this Treaty, and in - time of war, as in time of peace, shall enjoy complete immunity - from attack or injury by belligerents, and from acts calculated to - impair their usefulness as part of the canal. - - Article 4 - - It is agreed that no change of territorial sovereignty or of the - international relations of the country or countries traversed by - the before-mentioned canal shall affect the general principle of - neutralisation or the obligation of the high contracting parties - under the present Treaty. - - Article 5 - - The present Treaty shall be ratified by his Britannic Majesty and - by the President of the United States, by and with the advice and - consent of the Senate thereof; and the ratifications shall be - exchanged at Washington or at London at the earliest possible time - within six months from the date hereof. - - In faith whereof the respective Plenipotentiaries have signed this - Treaty and thereunto affixed their seals. - - Done in duplicate at Washington, the 18th day of November, in the - year of Our Lord 1901. - - (Seal) PAUNCEFOTE. - (Seal) JOHN HAY. - -On November 18, 1903, the so-called Hay-Varilla Treaty[326] was -concluded between the United States and the new Republic of Panama, -according to which, on the one hand, the United States guarantees and -will maintain the independence of the Republic of Panama, and, on the -other hand, the Republic of Panama grants[327] to the United States in -perpetuity for the construction, administration, and protection of a -canal between Colon and Panama the use, occupation, and control of a -strip of land required for the construction of the canal, and, further, -of land on both sides of the canal to the extent of five miles on either -side, with the exclusion, however, of the cities of Panama and Colon and -the harbours adjacent to these cities. According to article 18 of this -treaty the canal and the entrance thereto shall be neutral in -perpetuity, and shall be open to vessels of all nations as stipulated by -article 3 of the Hay-Pauncefote Treaty. - -[Footnote 326: See Martens, N.R.G. 2nd Ser. XXXI. p. 599.] - -[Footnote 327: That this grant is really cession all but in name, was -pointed out above, [p] 171 (4); see also below [p] 216.] - - -VI - -MARITIME BELT - - Grotius, II. c. 3, [p] 13--Vattel, I. [p][p] 287-290--Hall, [p][p] - 41-42--Westlake, I. pp. 183-192--Lawrence, [p] 187--Phillimore, I. - [p][p] 197-201--Twiss, I. [p][p] 144, 190-192--Halleck, I. pp. - 157-167--Taylor, [p][p] 247-250--Walker, [p] 17--Wharton, [p] 32--Moore, - I. [p][p] 144-152--Wheaton, [p][p] 177-180--Bluntschli, [p][p] 302, - 309-310--Hartmann, [p] 58--Heffter, [p] 75--Stoerk in Holtzendorff, - II. pp. 409-449--Gareis, [p] 21--Liszt, [p] 9--Ullmann, [p] 87--Bonfils, - Nos. 491-494--Despagnet, Nos. 403-414--Merignhac, II. pp. - 370-392--Pradier-Fodere, II. Nos. 617-639--Nys, I. pp. - 496-520--Rivier, I. pp. 145-153--Calvo, I. [p][p] 353-362--Fiore, II. - Nos. 801-809, and Code, Nos. 271-273, 1025--Martens, I. [p] - 99--Bynkershoek, "De dominio maris" and "Quaestiones juris - publici," I. c. 8--Ortolan, "Diplomatie de la mer" (1856), I. pp. - 150-175--Heilborn, System, pp. 37-57--Imbart-Latour, "La mer - territoriale, &c." (1889)--Godey, "La mer cotiere" - (1896)--Schuecking, "Das Kuestenmeer im internationalen Recht" - (1897)--Perels, [p] 5--Fulton, "The Sovereignty of the Seas" (1911), - pp. 537-740--Barclay in Annuaire, XII. (1892), pp. 104-136, and - XIII. (1894), pp. 125-162--Martens in R.G. I. (1894), pp. - 32-43--Aubert, _ibidem_, pp. 429-441--Engelhardt in R.I. XXVI. - (1894), pp. 209-213--Godey in R.G. III. (1896), pp. - 224-237--Lapradelle in R.G. V. (1898), pp. 264-284, 309-347. - -[Sidenote: State Property of Maritime Belt contested.] - -[p] 185. Maritime belt is that part of the sea which, in contradistinction -to the Open Sea, is under the sway of the littoral States. But no -unanimity exists with regard to the nature of the sway of the littoral -States. Many writers maintain that such sway is sovereignty, that the -maritime belt is a part of the territory of the littoral State, and that -the territorial supremacy of the latter extends over its coast waters. -Whereas it is nowadays universally recognised that the Open Sea cannot -be State property, such part of the sea as makes the coast waters would, -according to the opinion of these writers, actually be the State -property of the littoral States, although foreign States have a right of -innocent passage of their merchantmen through the coast waters. - -On the other hand, many writers of great authority emphatically deny the -territorial character of the maritime belt and concede to the littoral -States, in the interest of the safety of the coast, only certain powers -of control, jurisdiction, police, and the like, but not sovereignty. - -This is surely erroneous, since the real facts of international life -would seem to agree with the first-mentioned opinion only. Its -supporters rightly maintain[328] that the universally recognised fact of -the exclusive right of the littoral State to appropriate the natural -products of the sea in the coast waters, especially the use of the -fishery therein, can coincide only with the territorial character of the -maritime belt. The argument of their opponents that, if the belt is to -be considered a part of State territory, every littoral State must have -the right to cede and exchange its coast waters, can properly be met by -the statement that territorial waters of all kinds are inalienable -appurtenances[329] of the littoral and riparian States.[330] - -[Footnote 328: Hall, p. 158. The question is treated with great -clearness by Heilborn, "System," pp. 37-57, and Schuecking, pp. 14-20.] - -[Footnote 329: See above, [p] 175. Bynkershoek's ("De Dominio Maris," c. -5) opinion that a littoral State can alienate its maritime belt without -the coast itself, is at the present day untenable.] - -[Footnote 330: The fact that art. I. of Convention 13 (Neutral Rights -and Duties in Maritime War) of the second Hague Peace Conference, 1907, -speaks of sovereign rights ... in neutral waters would seem to indicate -that the States themselves consider their sway over the maritime belt to -be of the nature of sovereignty.] - -[Sidenote: Breadth of Maritime Belt.] - -[p] 186. Be that as it may, the question arises how far into the sea those -waters extend which are coast waters and are therefore under the sway of -the littoral State. Here, too, no unanimity exists upon either the -starting line of the belt on the coast or the breadth itself of the belt -from such starting line. - -(1) Whereas the starting line is sometimes drawn along high-water mark, -many writers draw it along low-water mark. Others draw it along the -depths where the waters cease to be navigable; others again along those -depths where coast batteries can still be erected, and so on.[331] But -the number of those who draw it along low-water mark is increasing. The -Institute of International Law[332] has voted in favour of this starting -line, and many treaties stipulate the same. - -[Footnote 331: See Schuecking, p. 13.] - -[Footnote 332: See Annuaire, XIII. p. 329.] - -(2) With regard to the breadth of the maritime belt various opinions -have in former times been held, and very exorbitant claims have been -advanced by different States. And although Bynkershoek's rule that -_terrae potestas finitur ubi finitur armorum vis_ is now generally -recognised by theory and practice, and consequently a belt of such -breadth is considered under the sway of the littoral State as is within -effective range of the shore batteries, there is still no unanimity on -account of the fact that such range is day by day increasing. Since at -the end of the eighteenth century the range of artillery was about three -miles, or one marine league, that distance became generally[333] -recognised as the breadth of the maritime belt. But no sooner was a -common doctrine originated than the range of projectiles increased with -the manufacture of heavier guns. And although Great Britain, France, -Austria, the United States of America, and other States, in Municipal -Laws and International Treaties still adhere to a breadth of one marine -league, the time will come when by a common agreement of the States such -breadth will be very much extended.[334] As regards Great Britain, the -Territorial Waters Jurisdiction Act[335] of 1878 (41 and 42 Vict. c. 73) -specially recognises the extent of the territorial maritime belt as -three miles, or one marine league, measured from the low-water mark of -the coast. - -[Footnote 333: But not universally. Thus Norway claims a breadth of four -miles and Spain even a breadth of six miles. As regards Norway, see -Aubert in R.G. I. (1894), pp. 429-441.] - -[Footnote 334: The Institute of International Law has voted in favour of -six miles, or two marine leagues, as the breadth of the belt. See -Annuaire, XIII. p. 281.] - -[Footnote 335: See above, [p] 25, and Maine, p. 39.] - -[Sidenote: Fisheries, Cabotage, Police, and Maritime Ceremonials within -the Belt.] - -[p] 187. Theory and practice agree upon the following principles with -regard to fisheries, cabotage, police, and maritime ceremonials within -the maritime belt:-- - -(1) The littoral State can exclusively reserve the fishery within the -maritime belt[336] for its own subjects, whether fish or pearls or amber -or other products of the sea are in consideration. - -[Footnote 336: All treaties stipulate for the purpose of fishery a three -miles wide territorial maritime belt. See, for instance, article 1 of -the Hague Convention concerning police and fishery in the North Sea of -May 6, 1882. (Martens, N.R.G. 2nd Ser. IX. p. 556.)] - -(2) The littoral State can, in the absence of special treaties to the -contrary, exclude foreign vessels from navigation and trade along the -coast, the so-called cabotage,[337] and reserve this cabotage -exclusively for its own vessels. Cabotage meant originally navigation -and trade along the same stretch of coast between the ports thereof, -such coast belonging to the territory of one and the same State. -However, the term cabotage or coasting trade as used in commercial -treaties comprises now[338] sea trade between any two ports of the same -country, whether on the same coasts 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. - -[Footnote 337: See Pradier-Fodere V. Nos. 2441, 2442.] - -[Footnote 338: See below, [p] 579, where the matter is more amply -treated.] - -(3) The littoral State can exclusively exercise police and control -within its maritime belt in the interest of its custom-house duties, the -secrecy of its coast fortifications, and the like. Thus foreign vessels -can be ordered to take certain routes and to avoid others. - -(4) The littoral State can make laws and regulations regarding maritime -ceremonials to be observed by such foreign merchantmen as enter its -territorial maritime belt.[339] - -[Footnote 339: See Twiss, I. [p] 194.] - -[Sidenote: Navigation within the Belt.] - -[p] 188. Although the maritime belt is a portion of the territory of the -littoral State and therefore under the absolute territorial supremacy of -such State, the belt is nevertheless, according to the practice of all -the States, open to merchantmen of all nations for inoffensive -navigation, cabotage excepted. And it is the common conviction[340] that -every State has by customary International Law the _right_ to demand -that in time of peace its merchantmen may inoffensively pass through the -territorial maritime belt of every other State. Such right is correctly -said to be a consequence of the freedom of the Open Sea, for without -this right navigation on the Open Sea by vessels of all nations would in -fact be an impossibility. And it is a consequence of this right that no -State can levy tolls for the mere passage of foreign vessels through its -maritime belt. Although the littoral State may spend a considerable -amount of money for the erection and maintenance of lighthouses and -other facilities for safe navigation within its maritime belt, it cannot -make merely passing foreign vessels pay for such outlays. It is only -when foreign ships cast anchor within the belt or enter a port that they -can be made to pay dues and tolls by the littoral State. Some -writers[341] maintain that all nations have the right of inoffensive -passage for their merchantmen by usage only, and not by the customary -Law of Nations, and that, consequently, in strict law a littoral State -can prevent such passage. They are certainly mistaken. An attempt on the -part of a littoral State to prevent free navigation through the maritime -belt in time of peace would meet with stern opposition on the part of -all other States. - -[Footnote 340: See above, [p] 142.] - -[Footnote 341: Klueber, [p] 76; Pradier-Fodere, II. No. 628.] - -But a right of foreign States for their men-of-war to pass unhindered -through the maritime belt is not generally recognised. Although many -writers assert the existence of such a right, many others emphatically -deny it. As a rule, however, in practice no State actually opposes in -time of peace the passage of foreign men-of-war and other public vessels -through its maritime belt. And it may safely be stated, first, that a -usage has grown up by which such passage, if in every way inoffensive -and without danger, shall not be denied in time of peace; and, secondly, -that it is now a customary rule of International Law that the right of -passage through such parts of the maritime belt as form part of the -highways for international traffic cannot be denied to foreign -men-of-war.[342] - -[Footnote 342: See below, [p] 449.] - -[Sidenote: Jurisdiction within the Belt.] - -[p] 189. That the littoral State has exclusive jurisdiction within the -belt as regards mere matters of police and control is universally -recognised. Thus it can exclude foreign pilots, can make custom-house -arrangements, sanitary regulations, laws concerning stranded vessels and -goods, and the like. It is further agreed that foreign merchantmen -casting anchor within the belt or entering a port,[343] fall at once and -_ipso facto_ under the jurisdiction of the littoral State. But it is a -moot point whether such foreign vessels as do not stay but merely pass -through the belt are for the time being under this jurisdiction. It is -for this reason that the British Territorial Waters Jurisdiction Act of -1878 (41 & 42 Vict. c. 73), which claims such jurisdiction, has called -forth protests from many writers.[344] The controversy itself can be -decided only by the practice of the States. The British Act quoted, the -basis of which is, in my opinion, sound and reasonable, is a powerful -factor in initiating such a practice; but as yet no common practice of -the States can be said to exist. - -[Footnote 343: The Institute of International Law--see Annuaire, XVII. -(1898), p. 273--adopted at its meeting at the Hague in 1898 a -"_Reglement_ sur le regime legal des navires et de leurs equipages dans -les ports etrangers" comprising seven rules.] - -[Footnote 344: See Perels, pp. 69-77. The Institute of International -Law, which at its meeting at Paris in 1894 adopted a body of eleven -rules regarding the maritime belt, gulfs, bays, and straits, voted -against the jurisdiction of a littoral State over foreign vessels merely -passing through the belt. See Annuaire, XIII. p. 328.] - -[Sidenote: Zone for Revenue and Sanitary Laws.] - -[p] 190. Different from the territorial maritime belt is the zone of the -Open Sea, over which a littoral State extends the operation of its -revenue and sanitary laws. The fact is that Great Britain and the United -States, as well as other States, possess revenue and sanitary laws which -impose certain duties not only on their own but also on such foreign -vessels bound to one of their ports as are approaching, but not yet -within, their territorial maritime belt.[345] Twiss and Phillimore agree -that in strict law these Municipal Laws have no basis, since every State -is by the Law of Nations prevented from extending its jurisdiction over -the Open Sea, and that it is only the Comity of Nations which admits -tacitly the operation of such Municipal Laws as long as foreign States -do not object, and provided that no measure is taken within the -territorial maritime belt of another nation. I doubt not that in time -special arrangements will be made as regards this point by a universal -international convention. But I believe that, since Municipal Laws of -the above kind have been in existence for more than a hundred years and -have not been opposed by other States, a customary rule of the Law of -Nations may be said to exist which allows littoral States in the -interest of their revenue and sanitary laws to impose certain duties on -such foreign vessels bound to their ports as are approaching, although -not yet within, their territorial maritime belt. - -[Footnote 345: See, for instance, the British so-called _Hovering -Acts_, 9 Geo. II. c. 35 and 24 Geo. III. c. 47. The matter is treated by -Moore, I. [p] 151; Taylor, [p] 248; Twiss, I. [p] 190; Phillimore, I. -[p] 198; Halleck, I. p. 157; Stoerk in Holtzendorff, II. pp. 475-478; -Perels, [p] 5, pp. 25-28. See also Hall, "Foreign Powers and -Jurisdiction," [p][p] 108 and 109, and Annuaire, XIII. (1894), pp. 135 -and 141.] - - -VII - -GULFS AND BAYS - - Vattel, I. [p] 291--Hall, [p] 41--Westlake, I. pp. - 183-192--Lawrence, [p] 72--Phillimore, I. [p][p] 196-206--Twiss, - I. [p][p] 181-182--Halleck, I. pp. 165-170--Taylor, [p][p] - 229-231--Walker, [p] 18--Wharton, I. [p][p] 27-28--Moore, I. [p] - 153--Wheaton, [p][p] 181-190--Bluntschli, [p][p] - 309-310--Hartmann, [p] 58--Heffter, [p] 76--Stoerk in - Holtzendorff, II. pp. 419-428--Gareis, [p] 21--Liszt, [p] - 9--Ullmann, [p] 88--Bonfils, No. 516--Despagnet, Nos. - 405-406--Merignhac, II. pp. 394-397--Pradier-Fodere, II. Nos. - 661-681--Nys, I. pp. 441-447--Rivier, I. pp. 153-157--Calvo, I. - [p][p] 366-367--Fiore, II. Nos. 808-815, and Code, Nos. - 278-279--Martens, I. [p] 100--Perels, [p] 5--Schuecking, "Das - Kuestenmeer im internationalen Recht" (1897), pp. 20-24--Barclay - in Annuaire, XII. pp. 127-129--Oppenheim in Z.V. I. (1907), pp. - 579-587, and V. (1911), pp. 74-95. - -[Sidenote: Territorial Gulfs and Bays.] - -[p] 191. It is generally admitted that such gulfs and bays as are enclosed -by the land of one and the same littoral State, and whose entrance from -the sea is narrow enough to be commanded by coast batteries erected on -one or both sides of the entrance, belong to the territory of the -littoral State even if the entrance is wider[346] than two marine -leagues, or six miles. - -[Footnote 346: I have no reason to alter the above statement, although -Lord Fitzmaurice declared in the House of Lords on February 21, 1907, in -the name of the British Government, that they considered such bays only -to be territorial as possessed an entrance _not_ wider than six miles. -The future will have to show whether Great Britain and her -self-governing colonies consider themselves bound by this statement. No -writer of authority can be quoted in favour of it, although Walker ([p] -18) and Wilson and Tucker (5th ed., 1910, [p] 53) state it. Westlake (vol. -I. p. 187) cannot be cited in favour of it, since he distinguishes -between bays and gulfs in such a way as is not generally done by -international lawyers, and as is certainly not recognised by geography; -for the very examples which he enumerates as _gulfs_ are all called -_bays_, namely those of Conception, of Cancale, of Chesapeake, and of -Delaware. In the North Atlantic Coast Fisheries case, between the United -States and Great Britain, which was decided by the Permanent Court of -Arbitration at the Hague in 1910, the United States--see the official -publication of the case, p. 136--also contended that only such bays -could be considered territorial as possessed an entrance not wider than -six miles, but the Court refused to agree to this contention.] - -Some writers maintain that gulfs and bays whose entrance is wider than -ten miles, or three and a third marine leagues, cannot belong to the -territory of the littoral State, and the practice of some States accords -with this opinion. But the practice of other countries, approved by -many writers, goes beyond this limit. Thus Great Britain holds the Bay -of Conception in Newfoundland to be territorial, although it goes forty -miles into the land and has an entrance more than twenty miles wide. And -the United States claim the Chesapeake and Delaware Bays, as well as -other inlets of the same character, as territorial,[347] although many -European writers oppose this claim. The Institute of International Law -has voted in favour of a twelve miles wide entrance, but admits the -territorial character of such gulfs and bays with a wider entrance as -have been considered territorial for more than one hundred years.[348] - -[Footnote 347: See Taylor, [p] 229; Wharton, I. [p][p] 27 and 28; Moore, -I. [p] 153.] - -[Footnote 348: See Annuaire, XIII. p. 329.] - -As the matter stands, it is doubtful as regards many gulfs and bays -whether they are territorial or not. Examples of territorial bays in -Europe are: The Zuider Zee is Dutch; the Frische Haff, the Kurische -Haff, and the Bay of Stettin, in the Baltic, are German, as is also the -Jade Bay in the North Sea. The whole matter calls for an international -congress to settle the question once for all which gulfs and bays are to -be considered territorial. And it must be specially observed that it is -hardly possible that Great Britain would still, as she formerly did for -centuries, claim the territorial character of the so-called King's -Chambers,[349] which include portions of the sea between lines drawn -from headland to headland. - -[Footnote 349: Whereas Hall ([p] 41, p. 162) says: "England would, no -doubt, not attempt any longer to assert a right of property over the -King's Chambers," Phillimore (I. [p] 200) still keeps up this claim. The -attitude of the British Government in the Moray Firth Case--see below, -p. 264--would seem to demonstrate that this claim is no longer upheld. -See also Lawrence, [p] 87, and Westlake, I. p. 188.] - -[Sidenote: Non-territorial Gulfs and Bays.] - -[p] 192. Gulfs and bays surrounded by the land of one and the same -littoral State whose entrance is so wide that it cannot be commanded by -coast batteries, and, further, all gulfs and bays enclosed by the land -of more than one littoral State, however narrow their entrance may be, -are non-territorial. They are parts of the Open Sea, the marginal belt -inside the gulfs and bays excepted. They can never be appropriated, they -are in time of peace and war open to vessels of all nations including -men-of-war, and foreign fishing vessels cannot, therefore, be compelled -to comply with municipal regulations of the littoral State concerning -the mode of fishing. - -An illustrative case is that of the fisheries in the Moray Firth. By -article 6 of the Herring[350] Fishery (Scotland) Act, 1889, beam and -otter trawling is prohibited within certain limits of the Scotch coast, -and the Moray Firth inside a line drawn from Duncansby Head in Caithness -to Rattray Point in Aberdeenshire is included in the prohibited area. In -1905, Mortensen, the captain of a Norwegian fishing vessel, but a Danish -subject, was prosecuted for an offence against the above-mentioned -article 6, convicted, and fined by the Sheriff Court at Dornoch, -although he contended that the incriminating act was committed outside -three miles from the coast. He appealed to the High Court of Justiciary, -which,[351] however, confirmed the verdict of the Sheriff Court, -correctly asserting that, whether or not the Moray Firth could be -considered as a British territorial bay, the Court was bound by a -British Act of Parliament even if such Act violates a rule of -International Law. The British Government, while recognising that the -Scotch Courts were bound by the Act of Parliament concerned, likewise -recognised that, the Moray Firth not being a British territorial bay, -foreign fishing vessels could not be compelled to comply with an Act of -Parliament regulating the mode of fishing in the Moray Firth outside -three miles from the coast, and therefore remitted Mortensen's fine. To -remedy the conflict between article 6 of the above-mentioned Herring -Fishery (Scotland) Act, 1889, and the requirements of International Law, -Parliament passed the Trawling in Prohibited Areas Prevention Act,[352] -1909, according to which no prosecution can take place for the exercise -of prohibited fishing methods outside the three miles from the coast, -but the fish so caught may not be landed or sold in the United -Kingdom.[353] - -[Footnote 350: 52 and 53 Vict. c. 23.] - -[Footnote 351: Mortensen _v._ Peters, "The Scotch Law Times Reports," -vol. 14, p. 227.] - -[Footnote 352: 9 Edw. VII. c. 8.] - -[Footnote 353: See Oppenheim in Z.V. V. (1911), pp. 74-95.] - -[Sidenote: Navigation and Fishery in Territorial Gulfs and Bays.] - -[p] 193. As regards navigation and fishery within territorial gulfs and -bays, the same rules of the Law of Nations are valid as in the case of -navigation and fishery within the territorial maritime belt. The right -of fishery may, therefore, exclusively be reserved for subjects of the -littoral State.[354] And navigation, cabotage excepted, must be open to -merchantmen of all nations, but foreign men-of-war need not be admitted. - -[Footnote 354: The Hague Convention concerning police and fishery in the -North Sea, concluded on May 6, 1882, between Great Britain, Belgium, -Denmark, France, Germany, and Holland reserves by its article 2 the -fishery for subjects of the littoral States of such bays as have an -entrance from the sea not wider than ten miles, but reserves likewise a -maritime belt of three miles to be measured from the line where the -entrance is ten miles wide. Practically the fishery is therefore -reserved for subjects of the littoral State within bays with an entrance -thirteen miles wide. See Martens, N.R.G. 2nd Ser. IX. (1884), p. 556.] - - -VIII - -STRAITS - - Vattel, I. [p] 292--Hall, [p] 41--Westlake, I. pp. 193-197--Lawrence, - [p][p] 87-89--Phillimore, I. [p][p] 180-196--Twiss, I. [p][p] 183, 184, - 189--Halleck, I. pp. 165-170--Taylor, [p][p] 229-231--Walker, [p] - 17--Wharton, [p][p] 27-29--Wheaton, [p][p] 181-190--Moore, I. [p][p] - 133-134--Bluntschli, [p] 303--Hartmann, [p] 65--Heffter, [p] 76--Stoerk - in Holtzendorff, II. pp. 419-428--Gareis, [p] 21--Liszt, [p][p] 9 and - 26--Ullmann, [p] 88--Bonfils, Nos. 506-511--Despagnet, Nos. - 415-417--Pradier-Fodere, II. Nos. 650-656--Nys, I. pp. - 451-474--Rivier, I. pp. 157-159--Calvo, I. [p][p] 368-372--Fiore, II. - Nos. 745-754, and Code, Nos. 280-281--Martens, I. [p] 101--Holland, - Studies, p. 277. - -[Sidenote: What Straits are Territorial.] - -[p] 194. All straits which are so narrow as to be under the command of -coast batteries erected either on one or both sides of the straits, are -territorial. Therefore, straits of this kind which divide the land of -one and the same State belong to the territory of such State. Thus the -Solent, which divides the Isle of Wight from England, is British, the -Dardanelles and the Bosphorus are Turkish, and both the Kara and the -Yugor Straits, which connect the Kara Sea with the Barents Sea, are -Russian. On the other hand, if such narrow strait divides the land of -two different States, it belongs to the territory of both, the boundary -line running, failing a special treaty making another arrangement, -through the mid-channel.[355] Thus the Lymoon Pass, the narrow strait -which separates the British island of Hong Kong from the continent, was -half British and half Chinese as long as the land opposite Hong Kong was -Chinese territory. - -[Footnote 355: See below, [p] 199.] - -It would seem that claims of States over wider straits than those which -can be commanded by guns from coast batteries are no longer upheld. Thus -Great Britain used formerly to claim the Narrow Seas--namely, the St. -George's Channel, the Bristol Channel, the Irish Sea, and the North -Channel--as territorial; and Phillimore asserts that the exclusive right -of Great Britain over these Narrow Seas is uncontested. But it must be -emphasised that this right _is_ contested, and I believe that Great -Britain would now no longer uphold her former claim,[356] at least the -Territorial Waters Jurisdiction Act 1878 does not mention it. - -[Footnote 356: See Phillimore, I. [p] 189, and above, [p] 191 (King's -Chambers). Concerning the Bristol Channel, Hall ([p] 41, p. 162, note 2) -remarks: "It was apparently decided by the Queen's Bench in Reg. _v._ -Cunningham (Bell's "Crown Cases," 86) that the whole of the Bristol -Channel between Somerset and Glamorgan is British territory; possibly, -however, the Court intended to refer only to that portion of the Channel -which lies within Steepholm and Flatholm." See also Westlake, I. p. 188, -note 3.] - -[Sidenote: Navigation, Fishery, and Jurisdiction in Straits.] - -[p] 195. All rules of the Law of Nations concerning navigation, fishery, -and jurisdiction within the maritime belt apply likewise to navigation, -fishery, and jurisdiction within straits. Foreign merchantmen, -therefore, cannot[357] be excluded; foreign men-of-war must be admitted -to such straits as form part of the highways for international -traffic;[358] the right of fishery may exclusively be reserved for -subjects of the littoral State; and the latter can exercise jurisdiction -over all foreign merchantmen passing through the straits. If the narrow -strait divides the land of two different States, jurisdiction and -fishery are reserved for each littoral State within the boundary line -running through the mid-channel or otherwise as by treaty arranged. - -[Footnote 357: The claim of Russia--see Waultrin in R.G. XV. (1908), p. -410--to have a right to exclude foreign merchantmen from the passage -through the Kara and the Yugor Straits, is therefore unfounded. As -regards the Kara Sea, see below, [p] 253, note 2.] - -[Footnote 358: As, for instance, the Straits of Magellan. These straits -were neutralised in 1881--see below, [p] 568, and vol. II. [p] 72--by a -treaty between Chili and Argentina. See Abribat, "Le detroit de Magellan -au point de vue international" (1902); Nys, I. pp. 470-474; and Moore, -I. [p] 134.] - -It must, however, be stated that foreign merchantmen cannot be excluded -from the passage through territorial straits only when these connect two -parts of the Open Sea. In case a territorial strait belonging to one and -the same State connects a part of the Open Sea with a territorial gulf -or bay, or with a territorial land-locked sea belonging to the same -State--as, for instance, the Strait of Kertch[359] at present, and -formerly the Bosphorus and the Dardanelles[360]--foreign vessels can be -excluded therefrom. - -[Footnote 359: See below, [p] 252.] - -[Footnote 360: See below, [p] 197.] - -[Sidenote: The former Sound Dues.] - -[p] 196. The rule that foreign merchantmen must be allowed inoffensive -passage through territorial straits without any dues and tolls whatever, -had one exception until the year 1857. From time immemorial, Denmark had -not allowed foreign vessels the passage through the two Belts and the -Sound, a narrow strait which divides Denmark from Sweden and connects -the Kattegat with the Baltic, without payment of a toll, the so-called -Sound Dues.[361] Whereas in former centuries these dues were not -opposed, they were not considered any longer admissible as soon as the -principle of free navigation on the sea became generally recognised, but -Denmark nevertheless insisted upon the dues. In 1857, however, an -arrangement[362] was completed between the maritime Powers of Europe and -Denmark by which the Sound Dues were abolished against a heavy indemnity -paid by the signatory States to Denmark. And in the same year the United -States entered into a convention[363] with Denmark for the free passage -of their vessels, and likewise paid an indemnity. With these dues has -disappeared the last witness of former times when free navigation on the -sea was not universally recognised. - -[Footnote 361: See the details, which have historical interest only, in -Twiss, I. [p] 188; Phillimore, I. [p] 189; Wharton, I. [p] 29; and Scherer, -"Der Sundzoll" (1845).] - -[Footnote 362: The Treaty of Copenhagen of March 14, 1857. See Martens, -N.R.G. XVI. 2nd part, p. 345.] - -[Footnote 363: Convention of Washington of April 11, 1857. See Martens, -N.R.G. XVII. 1st part, p. 210.] - -[Sidenote: The Bosphorus and Dardanelles.] - -[p] 197. The Bosphorus and Dardanelles, the two Turkish territorial -straits which connect the Black Sea with the Mediterranean, must be -specially mentioned.[364] So long as the Black Sea was entirely enclosed -by Turkish territory and was therefore a portion of this territory, -Turkey could exclude[365] foreign vessels from the Bosphorus and the -Dardanelles altogether, unless prevented by special treaties. But when -in the eighteenth century Russia became a littoral State of the Black -Sea, and the latter, therefore, ceased to be entirely a territorial sea, -Turkey, by several treaties with foreign Powers, conceded free -navigation through the Bosphorus and the Dardanelles to foreign -merchantmen. But she always upheld the rule that foreign men-of-war -should be excluded from these straits. And by article 1 of the -Convention of London of July 10, 1841, between Turkey, Great Britain, -Austria, France, Prussia, and Russia, this rule was once for all -accepted. Article 10 of the Peace Treaty of Paris of 1856 and the -Convention No. 1 annexed to this treaty, and, further, article 2 of the -Treaty of London, 1871, again confirm the rule, and all those Powers -which were not parties to these treaties submit nevertheless to it.[366] -According to the Treaty of London of 1871, however, the Porte can open -the straits in time of peace to the men-of-war of friendly and allied -Powers for the purpose, if necessary, of securing the execution of the -stipulations of the Peace Treaty of Paris of 1856. - -[Footnote 364: See Holland, "The European Concert in the Eastern -Question," p. 225, and Perels, p. 29.] - -[Footnote 365: See above, [p] 195.] - -[Footnote 366: The United States, although she actually acquiesces in -the exclusion of her men-of-war, seems not to consider herself bound by -the Convention of London, to which she is not a party. See Wharton, I. [p] -29, pp. 79 and 80, and Moore, I. [p] 134, pp. 666-668.] - -On the whole, the rule has in practice always been upheld by Turkey. -Foreign light public vessels in the service of foreign diplomatic envoys -at Constantinople can be admitted by the provisions of the Peace Treaty -of Paris of 1856. And on several occasions when Turkey has admitted a -foreign man-of-war carrying a foreign monarch on a visit to -Constantinople, there has been no opposition by the Powers.[367] But -when, in 1902, Turkey allowed four Russian torpedo destroyers to pass -through her straits on the condition that these vessels should be -disarmed and sail under the Russian commercial flag, Great Britain -protested and declared that she reserved the right to demand similar -privileges for her men-of-war should occasion arise. As far as I know, -however, no other Power has joined Great Britain in this protest. On the -other hand, no protest was raised when, in 1904, during the -Russo-Japanese war, two vessels belonging to the Russian volunteer fleet -in the Black Sea were allowed to pass through to the Mediterranean, for -nobody could presume that these vessels, which were flying the Russian -commercial flag, would later on convert themselves into men-of-war by -hoisting the Russian war flag.[368] - -[Footnote 367: See Perels, p. 30.] - -[Footnote 368: See below, vol. II. [p] 84.] - - -IX - -BOUNDARIES OF STATE TERRITORY - - Grotius, II. c. 3, [p] 18--Vattel, I. [p] 266--Hall, [p] - 38--Westlake, I. pp. 141-142--Twiss, I. [p][p] 147-148--Taylor, - [p] 251--Moore, I. [p][p] 154-162--Bluntschli, [p][p] - 296-302--Hartmann, [p] 59--Heffter, [p] 66--Holtzendorff in - Holtzendorff, II. pp. 232-239--Gareis, [p] 19--Liszt, [p] - 9--Ullmann, [p] 91--Bonfils, Nos. 486-489--Despagnet, No. - 377--Pradier-Fodere, II. Nos. 759-777--Merignhac, II. p. 358--Nys, - I. pp. 413-422--Rivier, I. [p] 11--Calvo, I. [p][p] - 343-352--Fiore, II. Nos. 799-806, and Code, Nos. - 1040-1049--Martens, I. [p] 89--Lord Curzon of Kedleston, - "Frontiers" (Romanes lecture of 1907). - -[Sidenote: Natural and Artificial Boundaries.] - -[p] 198. Boundaries of State territory are the imaginary lines on the -surface of the earth which separate the territory of one State from that -of another, or from unappropriated territory, or from the Open Sea. The -course of the boundary lines may or may not be indicated by boundary -signs. These signs may be natural or artificial, and one speaks, -therefore, of natural in contradistinction to artificial boundaries. -_Natural_ boundaries may consist of water, a range of rocks or -mountains, deserts, forests, and the like. _Artificial_ boundaries are -such signs as have been purposely put up to indicate the way of the -imaginary boundary-line. They may consist of posts, stones, bars, -walls,[369] trenches, roads, canals, buoys in water, and the like. It -must, however, be borne in mind that the distinction between artificial -and natural boundaries is not sharp, in so far as some natural -boundaries can be artificially created. Thus a forest may be planted, -and a desert may be created, as was the frequent practice of the Romans -of antiquity, for the purpose of marking the frontier. - -[Footnote 369: The Romans of antiquity very often constructed boundary -walls, and the Chinese Wall may also be cited as an example.] - -[Sidenote: Boundary Waters.] - -[p] 199. Natural boundaries consisting of water must be specially -discussed on account of the different kinds of boundary waters. Such -kinds are rivers, lakes, landlocked seas, and the maritime belt. - -(1) Boundary rivers[370] are such rivers as separate two different -States from each other.[371] If such river is not navigable, the -imaginary boundary line runs down the middle of the river, following all -turnings of the border line of both banks of the river. On the other -hand, in a navigable river the boundary line runs through the middle of -the so-called _Thalweg_, that is, the mid-channel of the river. It is, -thirdly, possible that the boundary line is the _border line_ of the -river, so that the whole bed belongs to one of the riparian States -only.[372] But this is an exception created by treaty or by the fact -that a State has occupied the lands on one side of a river at a time -prior to the occupation of the lands on the other side by some other -State.[373] And it must be remembered that, since a river sometimes -changes its course more or less, the boundary line running through the -middle or the _Thalweg_ or along the border line is thereby also -altered. In case a bridge is built over a boundary river, the boundary -line runs, failing special treaty arrangements, through the middle of -the bridge. As regards the boundary lines running through islands rising -in boundary rivers and through the abandoned beds of such rivers, see -below, [p][p] 234 and 235. - -[Footnote 370: See Huber in Z.V. I. (1906), pp. 29-52 and 159-217.] - -[Footnote 371: This case is not to be confounded with the other, in -which a river runs through the lands of two different States. In this -latter case the boundary line runs across the river.] - -[Footnote 372: See above, [p] 175.] - -[Footnote 373: See Twiss, I. [p][p] 147 and 148, and Westlake, I. p. 142.] - -(2) Boundary lakes and land-locked seas are such as separate the lands -of two or more different States from each other. The boundary line runs -through the middle of these lakes and seas, but as a rule special -treaties portion off such lakes and seas between riparian States.[374] - -[Footnote 374: See above, [p] 179.] - -(3) The boundary line of the maritime belt is, according to details -given above ([p] 186), uncertain, since no unanimity prevails with regard -to the width of the belt. It is, however, certain that the boundary line -runs not nearer to the shore than three miles, or one marine league, -from the low-water mark. - -(4) In a narrow strait separating the lands of two different States the -boundary line runs either through the middle or through the -mid-channel,[375] unless special treaties make different arrangements. - -[Footnote 375: See Twiss, I. [p][p] 183 and 184, and above, [p] 194.] - -[Sidenote: Boundary Mountains.] - -[p] 200. Boundary mountains or hills are such natural elevations from the -common level of the ground as separate the territories of two or more -States from each other. Failing special treaty arrangements, the -boundary line runs on the mountain ridge along with the watershed. But -it is quite possible that boundary mountains belong wholly to one of the -States which they separate.[376] - -[Footnote 376: See Fiore, II. No. 800.] - -[Sidenote: Boundary Disputes.] - -[p] 201. Boundary lines are, for many reasons, of such vital importance -that disputes relating thereto are inevitably very frequent and have -often led to war. During the nineteenth century, however, a tendency -began to prevail to settle such disputes peaceably. The simplest way in -which this can be done is always by a boundary treaty, provided the -parties can come to terms.[377] In other cases arbitration can settle -the matter, as, for instance, in the Alaska Boundary dispute between -Great Britain (representing Canada) and the United States, settled in -1903. Sometimes International Commissions are specially appointed to -settle the boundary lines. In this way the boundary lines between -Turkey, Bulgaria, Servia, Montenegro, and Roumania were settled after -the Berlin Congress of 1878. It sometimes happens that the States -concerned, instead of settling the boundary line, keep a strip of land -between their territories under their joint tenure and administration, -so that a so-called _condominium_ comes into existence, as in the case -of Moresnet (Kelmis) on the Prusso-Belgian frontier.[378] - -[Footnote 377: A good example of such a boundary treaty is that between -Great Britain and the United States of America respecting the -demarcation of the international boundary between the United States and -the Dominion of Canada, signed at Washington on April 11, 1908. See -Martens, N.R.G. 3rd Ser. IV. (1911), p. 191.] - -[Footnote 378: See above, [p] 171, No. 1.] - -[Sidenote: Natural Boundaries _sensu politico_.] - -[p] 202. Whereas the term "natural boundaries" in the theory and practice -of the Law of Nations means natural signs which indicate the course of -boundary lines, the same term is used politically[379] in various -different meanings. Thus the French often speak of the river Rhine as -their "natural" boundary, as the Italians do of the Alps. Thus, further, -the zones within which the language of a nation is spoken are frequently -termed that nation's "natural" boundary. Again, the line enclosing such -parts of the land as afford great facilities for defence against an -attack is often called the "natural" boundary of a State, whether or not -these parts belong to the territory of the respective State. It is -obvious that all these and other meanings of the term "natural -boundaries" are of no importance to the Law of Nations, whatever value -they may have politically. - -[Footnote 379: See Rivier, I. p. 166.] - - -X - -STATE SERVITUDES - - Vattel, I. [p] 89--Hall, [p] 42*--Westlake, I. p. 61--Phillimore, - I. [p][p] 281-283--Twiss, I. [p] 245--Taylor, [p] 252--Moore, I. - [p][p] 163-168, II. [p] 177--Bluntschli, [p][p] 353-359--Hartmann, - [p] 62--Heffter, [p] 43--Holtzendorff in Holtzendorff, II. pp. - 242-252--Gareis, [p] 71--Liszt, [p][p] 8 and 19--Ullmann, [p] - 99--Bonfils, Nos. 340-344--Despagnet, Nos. 190-192--Merignhac, II. - pp. 366-368--Pradier-Fodere, II. Nos. 834-845, 1038--Rivier, I. - pp. 296-303--Nys, II. pp. 271-279--Calvo, III. [p] 1583--Fiore, I. - [p] 380, and Code, Nos. 1095-1097--Martens, I. [p][p] - 94-95--Clauss, "Die Lehre von den Staatsdienstbarkeiten" - (1894)--Fabres, "Des servitudes dans le droit international" - (1901)--Hollatz, "Begriff und Wesen der Staatsservituten" - (1909)--Labrousse, "Des servitudes en droit international public" - (1911)--Nys in R.I. 2nd Ser. VII. (1905), pp. 118-125, and XIII. - (1911), pp. 312-323. - -[Sidenote: Conception of State Servitudes.] - -[p] 203. State servitudes are those exceptional and conventional -restrictions on the territorial supremacy of a State by which a part or -the whole of its territory is in a limited way made perpetually to -serve a certain purpose or interest of another State. Thus a State may -by a convention be obliged to allow the passage of troops of a -neighbouring State, or may in the interest of a neighbouring State be -prevented from fortifying a certain town near the frontier. - -Servitudes must not be confounded[380] with those general restrictions -upon territorial supremacy which, according to certain rules of the Law -of Nations, concern all States alike. These restrictions are named -"natural" restrictions of territorial supremacy (_servitutes juris -gentium naturales_), in contradistinction to the conventional -restrictions (_servitutes juris gentium voluntariae_) which constitute -the State servitudes in the technical sense of the term. Thus, for -instance, it is not a State servitude, but a "natural" restriction on -territorial supremacy, that a State is obliged to admit the free passage -of foreign merchantmen through its territorial maritime belt. - -[Footnote 380: This is done, for instance, by Heffter ([p] 43), Martens -([p] 94), Nys (II. p. 271), and Hall ([p] 42*); the latter speaks of the -right of innocent use of territorial seas as a servitude.] - -That State servitudes are or may on occasions be of great importance, -there can be no doubt whatever. The vast majority[381] of writers and -the practice of the States accept, therefore, the conception of State -servitudes, although they do not agree with regard to the definition and -the width of the conception, and although, consequently, in many cases -the question is disputed whether a certain restriction upon territorial -supremacy is or is not a State servitude. - -[Footnote 381: The conception of State servitudes is rejected by -Bulmerincq ([p] 49), Gareis ([p] 71), Liszt ([p][p] 8 and 19), Jellinek -("Allgemeine Staatslehre," p. 366).] - -The theory of State servitudes has of late been rejected by the -Permanent Court of Arbitration at the Hague in the case[382] (1910) of -the North Atlantic Coast Fisheries between Great Britain and the United -States, chiefly for the three reasons that a servitude in International -Law predicated an express grant of a sovereign right, that the doctrine -of international servitude originated in the peculiar and now obsolete -conditions prevailing in the Holy Roman Empire, and that this doctrine, -being little suited to the principle of sovereignty which prevails in -States under a constitutional government and to the present -international relations of Sovereign States, had found little, if any, -support from modern publicists. It is hardly to be expected that this -opinion of the Court will induce theory and practice to drop the -conception of State servitudes, which is of great value because it fitly -covers those restrictions on the territorial supremacy of the State by -which a part or the whole of its territory is in a limited way made -perpetually to serve a certain purpose or interest of another State. -That the doctrine of State servitudes originated in the peculiar -conditions of the Holy Roman Empire does not make it unfit for the -conditions of modern life if its practical value can be demonstrated. -Further, the assertion that the doctrine is but little suited to the -principle of sovereignty which prevails in States under a constitutional -government, and has, therefore, found little, if any, support from -modern publicists, does not agree with the facts. Lastly, the statement -that a servitude in International Law predicated an express grant of a -sovereign right, is not based on any other authority than the contention -of the United States, which made this unfounded statement in presenting -their case before the Tribunal. The fact is that a State servitude, -although to a certain degree it restricts the sovereignty (territorial -supremacy) of the State concerned, does as little as any other -restriction upon the sovereignty of a State confer a sovereign right -upon the State in favour of which it is established. - -[Footnote 382: See the official publication of the case, pp. 115-116; -Hogg in _The Law Quarterly Review_, XXVI. (1910), pp. 415-417; Richards -in _The Journal of the Society of Comparative Legislation_, New Series, -XI. (1910), pp. 18-27; Lansing in A.J. V. (1911), pp. 1-31; Balch and -Louter in R.I. 2nd Ser. XIII. (1911), pp. 5-23, 131-157.] - -[Sidenote: Subjects of State Servitudes.] - -[p] 204. Subjects of State servitudes are States only and exclusively, -since State servitudes can exist between States only (_territorium -dominans_ and _territorium serviens_). Formerly some writers[383] -maintained that private individuals and corporations were able to -acquire a State servitude; but nowadays it is agreed that this is not -possible, since the Law of Nations is a law between States only and -exclusively. Whatever rights may be granted by a State to foreign -individuals and corporations, such rights can never constitute State -servitudes. - -[Footnote 383: Bluntschli, [p] 353; Heffter, [p] 44.] - -On the other hand, every State can acquire and grant State servitudes, -although some States may, in consequence of their particular position -within the Family of Nations, be prevented from acquiring or granting -some special kind or another of State servitudes. Thus neutralised -States are in many points hampered in regard to acquiring and granting -State servitudes, because they have to avoid everything that could drag -them indirectly into war. Thus, further, half-Sovereign and -part-Sovereign States may not be able to acquire and to grant certain -State servitudes on account of their dependence upon their superior -State. But apart from such exceptional cases, even not-full Sovereign -States can acquire and grant State servitudes, provided they have any -international status at all. - -[Sidenote: Object of State Servitudes.] - -[p] 205. The object of State servitudes is always the whole or a part of -the territory of the State the territorial supremacy of which is -restricted by any such servitude.[384] Since the territory of a State -includes not only the land but also the rivers which water the land, the -maritime belt, the territorial subsoil, and the territorial atmosphere, -all these can, as well as the service of the land itself, be an object -of State servitudes. Thus a State may have a perpetual right of -admittance for its subjects to the fishery in the maritime belt of -another State, or a right to lay telegraph cables through a foreign -maritime belt, or a right to make and use a tunnel through a boundary -mountain, and the like. And should ever aerostation become so developed -as to be of practical utility, a State servitude might be created -through a State acquiring a perpetual right to send military aerial -vehicles through the territorial atmosphere of a neighbouring State. It -must, however, be emphasised that the Open Sea can never be the object -of a State servitude, since it is no State's territory. - -[Footnote 384: The contention of the United States, adopted by the Hague -Arbitration Tribunal, in 1910, in the case of the North Atlantic Coast -Fisheries, that a State servitude conferred a sovereign right upon the -State in favour of which it is established, was refuted above in [p] 203, -p. 275.] - -Since the object of State servitudes is the territory of a State, all -such restrictions upon the territorial supremacy of a State as do not -make a part or the whole of its territory itself serve a purpose or an -interest of another State are not State servitudes. The territory as the -object is the mark of distinction between State servitudes and other -restrictions on the territorial supremacy. Thus the perpetual -restriction imposed upon a State by a treaty not to keep an army beyond -a certain size is certainly a restriction on territorial supremacy, but -is not, as some writers[385] maintain, a State servitude, because it -does not make the territory of one State serve an interest of another. -On the other hand, when a State submits to a perpetual right enjoyed by -another State of passage of troops, or to the duty not to fortify a -certain town, place, or island,[386] or to the claim of another State -for its subjects to be allowed the fishery within the former's -territorial belt;[387] in all these and the like[388] cases the -territorial supremacy of a State _is_ in such a way restricted that a -part or the whole of its territory is made to serve the interest of -another State, and such restrictions are therefore State -servitudes.[389] - -[Footnote 385: See, for instance, Bluntschli, [p] 356.] - -[Footnote 386: Thus by article 32 of the peace treaty of Paris, 1856, -and by the Convention of March 30, 1856, between Great Britain, France, -and Russia, annexed to the peace treaty of Paris--see Martens, N.R.G. -XV. pp. 780 and 788--Russia is prevented from fortifying the Aland -Islands in the Baltic. See below, [p] 522, and Waultrin in R.G. XIV. pp. -517-533. See also A.J. II. (1908), p. 397.] - -[Footnote 387: Examples of such fishery servitudes are:-- - -(_a_) The former French fishery rights in Newfoundland which were based -on article 13 of the Treaty of Utrecht, 1713, and on the Treaty of -Versailles, 1783. See the details regarding the Newfoundland Fishery -Dispute, in Phillimore, I. [p] 195; Clauss, pp. 17-31; Geffcken in R.I. -XXII. p. 217; Brodhurst in _Law Magazine and Review_, XXIV. p. 67. The -French literature on the question is quoted in Bonfils, No. 342, note 1. -The dispute is now settled by France's renunciation of the privileges -due to her according to article 13 of the Treaty of Utrecht, which took -place by article 1 of the Anglo-French Convention signed in London on -April 8, 1904 (see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 29). But -France retains, according to article 2 of the latter Convention, the -right of fishing for her subjects in certain parts of the territorial -waters of Newfoundland. - -(_b_) The fishery rights granted by Great Britain to the United States -of America in certain parts of the British North Atlantic Coast by -article 1 of the Treaty of 1818 which gave rise to disputes extending -over a long period. The dispute is now settled by an award of the Hague -Permanent Court of Arbitration given in September (1910). That the Court -refused to recognise the conception of State servitudes, was pointed out -above, [p] 203. See above, [p] 203, and the literature there quoted.] - -[Footnote 388: Phillimore (I. [p] 283) quotes two interesting State -servitudes which belong to the past. According to articles 4 and 10 of -the Treaty of Utrecht, 1713, France was, in the interest of Great -Britain, not to allow the Stuart Pretender to reside on French -territory, and Great Britain was, in the interest of Spain, not to allow -Moors and Jews to reside in Gibraltar.] - -[Footnote 389: The controverted question whether neutralisation of a -State creates a State servitude is answered by Clauss (p. 167) in the -affirmative, but by Ullmann ([p] 99), correctly, I think, in the negative. -But a distinction must be drawn between neutralisation of a whole State -and neutralisation of certain parts of a State. In the latter case a -State servitude is indeed created.] - -[Sidenote: Different kinds of State Servitudes.] - -[p] 206. According to different qualities different kinds of State -servitudes must be distinguished. - -(1) Affirmative, active, or positive, are those servitudes which give -the right to a State to perform certain acts on the territory of another -State, such as to build and work a railway, to establish a custom-house, -to let an armed force pass through a certain territory (_droit -d'etape_), or to keep troops in a certain fortress, to use a port or an -island as a coaling station, and the like. - -(2) Negative, are such servitudes as give a right to a State to demand -of another State that the latter shall abstain from exercising its -territorial supremacy in certain ways. Thus a State can have a right to -demand that a neighbouring State shall not fortify certain towns near -the frontier, that another State shall not allow foreign men-of-war in a -certain harbour.[390] - -[Footnote 390: Affirmative State servitudes consist _in patiendo_, -negative servitudes _in non faciendo_. The rule of Roman Law _servitus -in faciendo consistere nequit_ has been adopted by the Law of Nations.] - -(3) Military, are those State servitudes which are acquired for military -purposes, such as the right to keep troops in a foreign fortress, or to -let an armed force pass through foreign territory, or to demand that a -town on foreign territory shall not be fortified, and the like. - -(4) Economic, are those servitudes which are acquired for the purpose of -commercial interests, traffic, and intercourse in general, such as the -right of fisheries in foreign territorial waters, to build a railway on -or lay a telegraph cable through foreign territory, and the like. - -[Sidenote: Validity of State Servitudes.] - -[p] 207. Since State servitudes, in contradistinction to personal rights -(rights _in personam_), are rights inherent to the object with which -they are connected (rights _in rem_), they remain valid and may be -exercised however the ownership of the territory to which they apply may -change. Therefore, if, after the creation of a State servitude, the part -of the territory affected comes by subjugation or cession under the -territorial supremacy of another State, such servitude remains in force. -Thus, when the Alsatian town of Hueningen became in 1871, together with -the whole of Alsace, German territory, the State servitude created by -the Treaty of Paris, 1815, that Hueningen should, in the interest of the -Swiss canton of Basle, never be fortified, was not extinguished.[391] -Thus, further, when in 1860 the former Sardinian provinces of Chablais -and Faucigny became French, the State servitude created by article 92 -of the Act of the Vienna Congress, 1815, that Switzerland should have -temporarily during war the right to locate troops in these provinces, -was not extinguished.[392] - -[Footnote 391: Details in Clauss, pp. 15-17.] - -[Footnote 392: Details in Clauss, pp. 8-15.] - -It is a moot point whether military State servitudes can be exercised in -time of war by a belligerent if the State with whose territory they are -connected remains neutral. Must such State, for the purpose of upholding -its neutrality, prevent the belligerent from exercising the respective -servitude--for instance, the right of passage of troops?[393] - -[Footnote 393: This question became practical when in 1900, during the -South African war, Great Britain claimed, and Portugal was ready to -grant, passage of troops through Portuguese territory in South Africa. -See below, vol. II. [p][p] 306 and 323; Clauss, pp. 212-217; and Dumas in -R.G. XVI. (1909), pp. 289-316.] - -[Sidenote: Extinction of State Servitudes.] - -[p] 208. State servitudes are extinguished by agreement between the States -concerned, or by express or tacit[394] renunciation on the part of the -State in whose interest they were created. They are not, according to -the correct opinion, extinguished by reason of the territory involved -coming under the territorial supremacy of another State. But it is -difficult to understand why, although State servitudes are called into -existence through treaties, it is sometimes maintained that the clause -_rebus sic stantibus_[395] cannot be applied in case a vital change of -circumstances makes the exercise of a State servitude unbearable. It is -a matter of course that in such case the restricted State must -previously try to come to terms with the State which is the subject of -the servitude. But if an agreement cannot be arrived at on account of -the unreasonableness of the other party, the clause _rebus sic -stantibus_ may well be resorted to.[396] The fact that the practice of -the States does not provide any example of an appeal to this clause for -the purpose of doing away with a State servitude proves only that such -appeal has hitherto been unnecessary. - -[Footnote 394: See Bluntschli, [p] 359 b. The opposition of Clauss (p. -219) and others to this sound statement of Bluntschli's is not -justified.] - -[Footnote 395: See below, [p] 539.] - -[Footnote 396: See Bluntschli, [p] 359 d, and Pradier-Fodere, II. No. 845. -Clauss (p. 222) and others oppose this sound statement likewise.] - - -XI - -MODES OF ACQUIRING STATE TERRITORY - - Vattel, I. [p][p] 203-207--Hall, [p] 31--Westlake, I. pp. - 84-116--Lawrence, [p][p] 74-78--Phillimore, I. [p][p] - 222-225--Twiss, I. [p][p] 113-139--Halleck, I. p. 154--Taylor, - [p][p] 217-228--Wheaton, [p][p] 161-163--Bluntschli, [p][p] - 278-295--Hartmann, [p] 61--Heffter, [p] 69--Holtzendorff in - Holtzendorff, II. pp. 252-255--Gareis, [p] 76--Liszt, [p] - 10--Ullmann, [p] 92--Bonfils, No. 532--Despagnet, No. - 378--Pradier-Fodere, II. Nos. 781-787--Merignhac, II. pp. - 410-412--Rivier, I. [p] 12--Nys, II. pp. 1-3--Calvo, I. [p] - 263--Fiore, I. Nos. 838-840--Martens, I. [p] 90--Heimburger, "Der - Erwerb der Gebietshoheit" (1888). - -[Sidenote: Who can acquire State Territory?] - -[p] 209. Since States only and exclusively are subjects of the Law of -Nations, it is obvious that, as far as the Law of Nations is concerned, -States[397] solely can acquire State territory. But the acquisition of -territory by an existing State and member of the Family of Nations must -not be confounded, first, with the foundation of a new State, and, -secondly, with the acquisition of such territory and sovereignty over it -by private individuals or corporations as lies outside the dominion of -the Law of Nations. - -[Footnote 397: There is no doubt that no full-Sovereign State is, as a -rule, prevented by the Law of Nations from acquiring more territory than -it already owns, unless some treaty arrangement precludes it from so -doing. As regards the question whether a neutralised State is, by its -neutralisation, prevented from acquiring territory, see above, [p] 96, and -below, [p] 215.] - -(1) Whenever a multitude of individuals, living on or entering into such -a part of the surface of the globe as does not belong to the territory -of any member of the Family of Nations, constitute themselves as a State -and nation on that part of the globe, a new State comes into existence. -This State is not, by reason of its birth, a member of the Family of -Nations. The formation of a new State is, as will be remembered from -former statements,[398] a matter of fact, and not of law. It is through -recognition, which is a matter of law, that such new State becomes a -member of the Family of Nations and a subject of International Law. As -soon as recognition is given, the new State's territory is recognised as -the territory of a subject of International Law, and it matters not how -this territory was acquired before the recognition. - -[Footnote 398: See above, [p] 71.] - -(2) Not essentially different is the case in which a private individual -or a corporation acquires land with sovereignty over it in countries -which are not under the territorial supremacy of a member of the Family -of Nations. The actual proceeding in all such cases is that all such -acquisition is made either by occupation of hitherto uninhabited land, -for instance an island, or by cession from a native tribe living on the -land. Acquisition of territory and sovereignty thereon in such cases -takes place outside the dominion of the Law of Nations, and the rules of -this law, therefore, cannot be applied. If the individual or corporation -which has made the acquisition requires protection by the Law of -Nations, they must either declare a new State to be in existence and ask -for its recognition by the Powers, as in the case of the former Congo -Free State,[399] or they must ask a member of the Family of Nations to -acknowledge the acquisition as made on its behalf.[400] - -[Footnote 399: See above, [p] 101. The case of Sir James Brooke, who -acquired in 1841 Sarawak, in North Borneo, and established an -independent State there, of which he became the Sovereign, may also be -cited. Sarawak is under English protectorate, but the successor of Sir -James Brooke is still recognised as Sovereign.] - -[Footnote 400: The matter is treated with great lucidity by Heimburger, -pp. 44-77, who defends the opinion represented in the text against Sir -Travers Twiss (I. Preface, p. x.; also in R.I. XV. p. 547, and XVI. p. -237) and other writers. See also Ullmann, [p] 93.] - -[Sidenote: Former Doctrine concerning Acquisition of Territory.] - -[p] 210. No unanimity exists among writers on the Law of Nations with -regard to the modes of acquiring territory on the part of the members of -the Family of Nations. The topic owes its controversial character to -the fact that the conception of State territory has undergone a great -change since the appearance of the science of the Law of Nations. When -Grotius created that science, State territory used to be still, as in -the Middle Ages, more or less identified with the private property of -the monarch of the State. Grotius and his followers applied, therefore, -the rules of Roman Law concerning the acquisition of private property to -the acquisition of territory by States.[401] As nowadays, as far as -International Law is concerned, every analogy to private property has -disappeared from the conception of State territory, the acquisition of -territory by a State can mean nothing else than the acquisition of -_sovereignty_ over such territory. It is obvious that under these -circumstances the rules of Roman Law concerning the acquisition of -private property can no longer be applied. Yet the fact that they have -been applied in the past has left traces which can hardly be -obliterated; and they need not be obliterated, since they contain a good -deal of truth in agreement with the actual facts. But the different -modes of acquiring territory must be taken from the real practice of the -States, and not from Roman Law, although the latter's terminology and -common-sense basis may be made use of. - -[Footnote 401: See above, [p] 168. The distinction between _imperium_ and -_dominium_ in Seneca's _dictum_ that "omnia rex imperio possidet, -singuli dominio" was well known, and Grotius, II. c. 3, [p] 4, quotes it, -but the consequences thereof were nevertheless not deduced. (See -Westlake, Chapters, pp. 129-133, and Westlake, I. pp. 84-88.)] - -[Sidenote: What Modes of Acquisition of Territory there are.] - -[p] 211. States as living organisms grow and decrease in territory. If the -historical facts are taken into consideration, different reasons may be -found to account for the exercise of sovereignty by a State over the -different sections of its territory. One section may have been ceded by -another State, another section may have come into the possession of the -owner in consequence of accretion, a third through subjugation, a -fourth through occupation of no State's land. As regards a fifth -section, a State may say that it has exercised its sovereignty over the -same for so long a period that the fact of having had it in undisturbed -possession is a sufficient title of ownership. Accordingly, five modes -of acquiring territory may be distinguished, namely: cession, -occupation, accretion, subjugation, and prescription. Most writers -recognise these five modes. Some, however, do not recognise -prescription; some assert that accretion creates nothing else than a -modification of the territory of a State; and some do not recognise -subjugation at all, or declare it to be only a special case of -occupation. It is for these reasons that some writers recognise only two -or three[402] modes of acquiring territory. Be that as it may, all -modes, besides the five mentioned, enumerated by some writers, are in -fact not special modes, but only special cases of cession.[403] And -whatever may be the value of the opinions of publicists, so much is -certain that the practice of the States recognises cession, occupation, -accretion, subjugation, and prescription as distinct modes of acquiring -territory. - -[Footnote 402: Thus Gareis ([p] 70) recognises cession and occupation -only, whereas Heimburger (pp. 106-110) and Holtzendorff (II. p. 254) -recognise cession, occupation, and accretion only.] - -[Footnote 403: See below, [p] 216. Such alleged special modes are sale, -exchange, gift, marriage contract, testamentary disposition, and the -like.] - -[Sidenote: Original and derivative Modes of Acquisition.] - -[p] 212. The modes of acquiring territory are correctly divided according -as the title they give is derived from the title of a prior owner State, -or not. Cession is therefore a derivative mode of acquisition, whereas -occupation, accretion, subjugation, and prescription are original -modes.[404] - -[Footnote 404: Lawrence ([p] 74) enumerates conquest (subjugation) and -prescription besides cession as derivative modes. This is, however, -merely the consequence of a peculiar conception of what is called a -derivative mode of acquisition.] - - -XII - -CESSION - - Hall, [p] 35--Lawrence, [p] 76--Phillimore, I. [p][p] - 252-273--Twiss, I. [p] 138--Walker, [p] 10--Halleck, I. pp. - 154-157--Taylor, [p] 227--Moore, I. [p][p] 83-86--Bluntschli, - [p][p] 285-287--Hartmann, [p] 61--Heffter, [p][p] 69 and - 182--Holtzendorff in Holtzendorff, II. pp. 269-274--Gareis, [p] - 70--Liszt, [p] 10--Ullmann, [p][p] 97-98--Bonfils, Nos. - 364-371--Merignhac, II. pp. 487-497--Despagnet, Nos. - 381-391--Pradier-Fodere, II. Nos. 817-819--Rivier, I. pp. - 197-217--Nys, II. pp. 8-31--Calvo, I. [p] 266--Fiore, II. [p][p] - 860-861, and Code, No. 1053--Martens, I. [p] 91--Heimburger, "Der - Erwerb der Gebietshoheit" (1888), pp. 110-120. - -[Sidenote: Conception of cession of State Territory.] - -[p] 213. Cession of State territory is the transfer of sovereignty over -State territory by the owner State to another State. There is no doubt -whatever that such cession is possible according to the Law of Nations, -and history presents innumerable examples of such transfer of -sovereignty. The Constitutional Law of the different States may or may -not lay down special rules[405] for the transfer or acquisition of -territory. Such rules can have no direct influence upon the rules of the -Law of Nations concerning cession, since Municipal Law can neither -abolish existing nor create new rules of International Law.[406] But if -such municipal rules contain constitutional restrictions on the -Government with regard to cession of territory, these restrictions are -so far important that such treaties of cession concluded by heads of -States or Governments as violate these restrictions are not -binding.[407] - -[Footnote 405: See above, [p] 168.] - -[Footnote 406: See above, [p] 21.] - -[Footnote 407: See below, [p] 497.] - -[Sidenote: Subjects of cession.] - -[p] 214. Since cession is a bilateral transaction, it has two -subjects--namely, the ceding and the acquiring State. Both subjects must -be States, and only those cessions in which both subjects are States -concern the Law of Nations. Cessions of territory made to private -persons and to corporations[408] by native tribes or by States outside -the dominion of the Law of Nations do not fall within the sphere of -International Law, neither do cessions of territory by native tribes -made to States[409] which are members of the Family of Nations. On the -other hand, cession of territory made to a member of the Family of -Nations by a State as yet outside that family is real cession and a -concern of the Law of Nations, since such State becomes through the -treaty of cession in some respects a member of that family.[410] - -[Footnote 408: See above, [p] 209, No. 2.] - -[Footnote 409: See below, [p][p] 221 and 222.] - -[Footnote 410: See above, [p] 103.] - -[Sidenote: Object of cession.] - -[p] 215. The object of cession is sovereignty over such territory as has -hitherto already belonged to another State. As far as the Law of Nations -is concerned, every State as a rule can cede a part of its territory to -another State, or by ceding the whole of its territory can even totally -merge in another State. However, since certain parts of State territory, -as for instance rivers and the maritime belt, are inalienable -appurtenances of the land, they cannot be ceded without a piece of -land.[411] - -[Footnote 411: See above, [p][p] 175 and 185.] - -The controverted question whether permanently neutralised parts of a not -permanently neutralised State can be ceded to another State must be -answered in the affirmative,[412] although the Powers certainly can -exercise an intervention by right. On the other hand, a permanently -neutralised State could not, except in the case of mere frontier -regulation, cede a part of its neutralised territory to another State -without the consent of the Powers.[413] Nor could a State under -suzerainty or protectorate cede a part or the whole of its territory to -a third State without the consent of the superior State. Thus, the -Ionian Islands could not in 1863 have merged in Greece without the -consent of Great Britain, which exercised a protectorate over these -islands. - -[Footnote 412: Thus in 1860 Sardinia ceded her neutralised provinces of -Chablais and Faucigny to France. See above, [p] 207.] - -[Footnote 413: See above, [p] 96, and the literature there quoted.] - -[Sidenote: Form of cession.] - -[p] 216. The only form in which a cession can be effected is an agreement -embodied in a treaty between the ceding and the acquiring State. Such -treaty may be the outcome of peaceable negotiations or of war, and the -cession may be one with or without compensation. - -If a cession of territory is the outcome of war, it is the treaty of -peace which stipulates the cession among its other provisions. Such -cession is regularly one without compensation, although certain duties -may be imposed upon the acquiring State, as, for instance, of taking -over a part of the debts of the ceding State corresponding to the extent -and importance of the ceded territory, or that of giving the individuals -domiciled on the ceded territory the option to retain their old -citizenship or, at least, to emigrate. - -Cessions which are the outcome of peaceable negotiations may be agreed -upon by the interested States from different motives and for different -purposes. Thus Austria, during war with Prussia and Italy in 1866, ceded -Venice to France as a gift, and some weeks afterwards France on her part -ceded Venice to Italy. The Duchy of Courland ceded in 1795 its whole -territory to and voluntarily merged thereby in Russia, in the same way -the then Free Town of Mulhouse merged in France in 1798, the Congo Free -State in Belgium in 1908, and the Empire of Korea in Japan in 1911. - -Cessions have in the past often been effected by transactions which are -analogous to transactions in private business life. As long as -absolutism was reigning over Europe, it was not at all rare for -territory to be ceded in _marriage contracts_ or by _testamentary -dispositions_.[414] In the interest of frontier regulations, but also -for other purposes, _exchanges_ of territory frequently take place. -_Sale_ of territory is quite usual; as late as 1868 Russia sold her -territory in America to the United States for 7,200,000 dollars, and in -1899 Spain sold the Caroline Islands to Germany for 25,000,000 pesetas. -_Pledge_ and _lease_ are also made use of. Thus, the then Republic of -Genoa pledged Corsica to France in 1768, Sweden pledged Wismar to -Mecklenburg in 1803; China[415] leased in 1898 Kiaochau to Germany,[416] -Wei-Hai-Wei and the land opposite the island of Hong Kong to Great -Britain,[417] and Port Arthur to Russia. - -[Footnote 414: Phillimore, I. [p][p] 274-276, enumerates many examples of -such cession. The question whether the monarch of a State under absolute -government could nowadays by a testamentary disposition cede territory -to another State must, I believe, be answered in the affirmative.] - -[Footnote 415: See above, [p] 171, No. 3. Cession may also take place -under the disguise of an agreement according to which territory comes -under the "administration" or under the "use, occupation, and control" -of a foreign State. See above, [p] 171, Nos. 2 and 4.] - -[Footnote 416: See Martens, N.R.G. 2nd Ser. XXX. (1904), p. 326.] - -[Footnote 417: See Martens, N.R.G. 2nd Ser. XXXII. (1905), pp. 89 and -90.] - -Whatever may be the motive and the purpose of the transaction, and -whatever may be the compensation, if any, for the cession, the ceded -territory is transferred to the new sovereign with all the international -obligations[418] locally connected with the territory (_Res transit cum -suo onere_, and _Nemo plus juris transferre potest, quam ipse habet_). - -[Footnote 418: How far a succession of States takes place in the case of -cession of territory has been discussed above, [p] 84.] - -[Sidenote: Tradition of the ceded Territory.] - -[p] 217. The treaty of cession must be followed by actual tradition of the -territory to the new owner State, unless such territory is already -occupied by the new owner, as in the case where the cession is the -outcome of war and the ceded territory has been during such war in the -military occupation of the State to which it is now ceded. But the -validity of the cession does not depend upon tradition,[419] the cession -being completed by ratification of the treaty of cession, and the -capability of the new owner to cede the acquired territory to a third -State at once without taking actual possession of it.[420] But of course -the new owner State cannot exercise its territorial supremacy thereon -until it has taken physical possession of the ceded territory. - -[Footnote 419: This is controversial. Many writers--see, for instance, -Rivier, I. p. 203--oppose the opinion presented in the text.] - -[Footnote 420: Thus France, to which Austria ceded in 1859 Lombardy, -ceded this territory on her part to Sardinia without previously having -actually taken possession of it.] - -[Sidenote: Veto of third Powers.] - -[p] 218. As a rule, no third Power has the right of _veto_ with regard to -a cession of territory. Exceptionally, however, such right may exist. It -may be that a third Power has by a previous treaty acquired a right of -pre-emption concerning the ceded territory, or that some early treaty -has created another obstacle to the cession, as, for instance, in the -case of permanently neutralised parts of a not-permanently neutralised -State.[421] And the Powers have certainly the right of _veto_ in case a -permanently neutralised State desires to increase its territory by -acquiring land through cession from another State.[422] But even where -no right of _veto_ exists, a third Power might intervene for political -reasons. For there is no duty on the part of third States to acquiesce -in such cessions of territory as endanger the balance of power or are -otherwise of vital importance.[423] And a strong State will practically -always interfere in case a cession of such a kind as menaces its vital -interests is agreed upon. Thus, when in 1867 the reigning King of -Holland proposed to sell Luxemburg to France, the North German -Confederation intervened, and the cession was not effected, but -Luxemburg became permanently neutralised. - -[Footnote 421: See above, [p] 215.] - -[Footnote 422: See above, [p][p] 209 and 215.] - -[Footnote 423: See above, [p] 136.] - -[Sidenote: Plebiscite and option.] - -[p] 219. As the object of cession is sovereignty over the ceded territory, -all such individuals domiciled thereon as are subjects of the ceding -State become _ipso facto_ by the cession subjects[424] of the acquiring -State. The hardship involved in the fact that in all cases of cession -the inhabitants of the territory lose their old citizenship and are -handed over to a new Sovereign whether they like it or not, has created -a movement in favour of the claim that no cession shall be valid until -the inhabitants have by a plebiscite[425] given their consent to the -cession. And several treaties[426] of cession concluded during the -nineteenth century stipulate that the cession shall only be valid -provided the inhabitants consent to it through a plebiscite. But it is -doubtful whether the Law of Nations will ever make it a condition of -every cession that it must be ratified by a plebiscite.[427] The -necessities of international policy may now and then allow or even -demand such a plebiscite, but in most cases they will not allow it. - -[Footnote 424: See Keith, "The Theory of State Succession, &c." (1907), -pp. 42-45; Cogordan, "La Nationalite" (1890), pp. 317-400; Moore, III. [p] -379.] - -[Footnote 425: See Stoerk, "Option und Plebiscite" (1879); Rivier, I. p. -204; Freudenthal, "Die Volksabstimmung bei Gebietsabtretungen und -Eroberungen" (1891); Bonfils, No. 570; Despagnet, No. 391; Ullmann, [p] -97.] - -[Footnote 426: See Rivier, I. p. 210, where all these treaties are -enumerated.] - -[Footnote 427: Although Grotius (II. c. VI. [p] 4) taught this to be -necessary.] - -The hardship of the inhabitants being handed over to a new Sovereign -against their will can be lessened by a stipulation in the treaty of -cession binding the acquiring State to give the inhabitants of the ceded -territory the option of retaining their old citizenship on making an -express declaration. Many treaties of cession concluded during the -second half of the nineteenth century contain this stipulation. But it -must be emphasised that, failing a stipulation expressly forbidding it, -the acquiring State may expel those inhabitants who have made use of the -option and retained their old citizenship, since otherwise the whole -population of the ceded territory might actually consist of aliens and -endanger the safety of the acquiring State. - -The option to emigrate within a certain period, which is frequently -stipulated in favour of the inhabitants of ceded territory, is another -means of averting the charge that inhabitants are handed over to a new -Sovereign against their will. Thus article 2 of the Peace Treaty of -Frankfort, 1871, which ended the Franco-German war, stipulated that the -French inhabitants of the ceded territory of Alsace and Lorraine should -up to October 1, 1872, enjoy the privilege of transferring their -domicile from the ceded territory to French soil.[428] - -[Footnote 428: The important question whether subjects of the ceding -States who are born on the ceded territory but have their domicile -abroad become _ipso facto_ by the cession subjects of the acquiring -State, must, I think, be answered in the negative, unless special treaty -arrangements stipulate the contrary. Therefore, Frenchmen born in Alsace -but domiciled at the time of the cession in Great Britain, would not -have lost their French citizenship through the cession to Germany but -for article 1, part 2, of the additional treaty of Dec. 11, 1871, to the -Peace Treaty of Frankfort. (Martens, N.R.G. XX. p. 847.) See Bonfils, -No. 427, and Cogordan, "La Nationalite, &c." (1890), p. 361.] - - -XIII - -OCCUPATION - - Hall, [p][p] 32-34--Westlake, I. pp. 96-111, 119-133--Lawrence, [p] - 74--Phillimore, I. [p][p] 236-250--Twiss, I. [p][p] 118-126--Halleck, I. - p. 154--Taylor, [p][p] 221-224--Walker, [p] 9--Wharton, I. [p] 2--Moore, - I. [p][p] 80-81--Wheaton, [p][p] 165-174--Bluntschli, [p][p] - 278-283--Hartmann, [p] 61--Heffter, [p] 70--Holtzendorff in - Holtzendorff, II. pp. 255-266--Gareis, [p] 70--Liszt, [p] 10--Ullmann, - [p][p] 93-96--Bonfils, Nos. 536-563--Despagnet, Nos. - 329-399--Merignhac, II. pp. 419-487--Pradier-Fodere, II. Nos. - 784-802--Rivier, I. pp. 188-197--Nys, II. pp. 47-108--Calvo, I. [p][p] - 266-282--Fiore, II. Nos. 841-849, and Code, Nos. - 1054-1067--Martens, I. [p] 90--Tartarin, "Traite de l'occupation" - (1873)--Westlake, Chapters, pp. 155-187--Heimburger, "Der Erwerb - der Gebietshoheit" (1888), pp. 103-155--Salomon, "L'occupation des - territoires sans maitre" (1889)--Jeze, "Etude theorique et - pratique sur l'occupation, &c." (1896)--Macdonell in the _Journal - of the Society of Comparative Legislation_, New Series, I. (1899), - pp. 276-286--Waultrin in R.G. XV. (1908), pp. 78, 185, 401. - -[Sidenote: Conception of Occupation.] - -[p] 220. Occupation is the act of appropriation by a State through which -it intentionally acquires sovereignty over such territory as is at the -time not under the sovereignty of another State. Occupation as a mode of -acquisition differs from subjugation[429] chiefly in so far as the -conquered and afterwards annexed territory has hitherto belonged to -another State. Again, occupation differs from cession in so far as -through cession the acquiring State receives sovereignty over the -respective territory from the former owner State. In contradistinction -to cession, which is a derivative mode of acquisition, occupation is -therefore an original mode. And it must be emphasised that occupation -can only take place by and for a State;[430] it must be a State act, -that is, it must be performed in the service of a State, or it must be -acknowledged by a State after its performance. - -[Footnote 429: See below, [p] 236.] - -[Footnote 430: See above, [p] 209.] - -[Sidenote: Object of Occupation.] - -[p] 221. Only such territory can be the object of occupation as is no -State's land, whether entirely uninhabited, as _e.g._ an island, or -inhabited by natives whose community is not to be considered as a State. -Even civilised individuals may live and have private property on a -territory without any union by them into a State proper which exercises -sovereignty over such territory. And natives may live on a territory -under a tribal organisation which need not be considered a State proper. -But a part or the whole of the territory of any State, even although -such State is entirely outside the Family of Nations, is not a possible -object of occupation, and it can only be acquired through cession[431] -or subjugation. On the other hand, a territory which belonged at one -time to a State but has been afterwards abandoned, is a possible object -for occupation on the part of another State.[432] - -[Footnote 431: See above, [p] 214.] - -[Footnote 432: See below, [p][p] 228 and 247.] - -Although the Open Sea is free and is, therefore, not the object of -occupation, the subsoil[433] of the bed of the Open Sea may become the -object of occupation through driving mines and piercing tunnels from the -coast.[434] - -[Footnote 433: See below, [p][p] 287_c_ and 287_d_.] - -[Footnote 434: When, in 1909, Admiral Peary reached the North Pole and -hoisted the flag of the United States the question was discussed whether -the North Pole could be the object of occupation. The question must, I -believe, be answered in the negative since there is no land on the Pole. -See Scott in A.J. III. (1909), pp. 928-941 and Balch in A.J. IV. (1910), -pp. 265-275.] - -[Sidenote: Occupation how effected.] - -[p] 222. Theory and practice agree nowadays upon the rule that occupation -is effected through taking possession of and establishing an -administration over the territory in the name of and for the acquiring -State. Occupation thus effected is _real_ occupation, and, in -contradistinction to _fictitious_ occupation, is named _effective_ -occupation. Possession and administration are the two essential facts -that constitute an effective occupation. - -(1) The territory must really be taken into possession by the occupying -State. For this purpose it is necessary that the respective State should -take the territory under its sway (_corpus_) with the intention to -acquire sovereignty over it (_animus_). This can only be done by a -settlement on the territory accompanied by some formal act which -announces both that the territory has been taken possession of and that -the possessor intends to keep it under his sovereignty. The necessary -formal act is usually performed either by the publication of a -proclamation or by the hoisting of a flag. But such formal act by itself -constitutes fictitious occupation only, unless there is left on the -territory a settlement which is able to keep up the authority of the -flag. On the other hand, it is irrelevant whether or not some agreement -is made with the natives by which they submit themselves to the sway of -the occupying State. Any such agreement is usually neither understood -nor appreciated by them, and even if the natives really do understand -the meaning, such agreements have a moral value only.[435] - -[Footnote 435: If an agreement with natives were legally important, the -respective territory would be acquired by cession, and not by -occupation. But although it is nowadays quite usual to obtain a cession -from a native chief, this is, nevertheless, not cession in the technical -sense of the term in International Law; see above, [p] 214.] - -(2) After having, in the aforementioned way, taken possession of a -territory, the possessor must establish some kind of administration -thereon which shows that the territory is really governed by the new -possessor. If within a reasonable time after the act of taking -possession the possessor does not establish some responsible authority -which exercises governing functions, there is then no effective -occupation, since in fact no sovereignty of a State is exercised over -the territory. - -[Sidenote: Inchoate Title of Discovery.] - -[p] 223. In former times the two conditions of possession and -administration which now make the occupation effective were not -considered necessary for the acquisition of territory through -occupation. In the age of the discoveries, States maintained that the -fact of discovering a hitherto unknown territory was sufficient reason -for considering it as acquired through occupation by the State in whose -service the discoverer made his explorations. And although later on a -real taking possession of the territory was considered necessary for its -occupation, it was not until the eighteenth century that the writers on -the Law of Nations postulated an _effective_ occupation as -necessary,[436] and it was not until the nineteenth century that the -practice of the States accorded with this postulate. But although -nowadays discovery does not constitute acquisition through occupation, -it is nevertheless not without importance. It is agreed that discovery -gives to the State in whose service it was made an _inchoate_ title; it -"acts as a temporary bar to occupation by another State"[437] within -such a period as is reasonably sufficient for effectively occupying the -discovered territory. If such period lapses without any attempt by the -discovering State to turn its _inchoate_ title into a _real_ title of -occupation, such inchoate title perishes, and any other State can now -acquire the territory by means of an effective occupation. - -[Footnote 436: See Vattel, I. [p] 208.] - -[Footnote 437: Thus Hall, [p] 32.] - -[Sidenote: Notification of Occupation to other Powers.] - -[p] 224. No rule of the Law of Nations exists which makes notification of -occupation to other Powers a necessary condition of its validity. But as -regards all future occupations on the _African_ coast the Powers -assembled at the Berlin Congo Conference in 1884-1885 have by article 34 -of the General Act[438] of this Conference stipulated that occupation -shall be notified to one another, so that such notification is now a -condition of the validity of certain occupations in Africa. And there is -no doubt that in time this rule will either by custom or by treaty be -extended from occupations on the African coast to occupations everywhere -else. - -[Footnote 438: See Martens, N.R.G. 2nd Ser. X. p. 426.] - -[Sidenote: Extent of Occupation.] - -[p] 225. Since an occupation is valid only if effective, it is obvious -that the extent of an occupation ought only to reach over so much -territory as is effectively occupied. In practice, however, the -interested States have neither in the past nor in the present acted in -conformity with such a rule; on the contrary, they have always tried to -attribute to their occupation a much wider area. Thus it has been -maintained that an effective occupation of the land at the mouth of a -river is sufficient to bring under the sovereignty of the occupying -State the whole territory through which such river and its tributaries -run up to the very crest of the watershed.[439] Again, it has been -maintained that, when a coast line has been effectively occupied, the -extent of the occupation reaches up to the watershed of all such rivers -as empty into the coast line.[440] And it has, thirdly, been asserted -that effective occupation of a territory extends the sovereignty of the -possessor also over neighbouring territories as far as it is necessary -for the integrity, security, and defence of the really occupied -land.[441] But all these and other fanciful assertions have no basis to -rest upon. In truth, no general rule can be laid down beyond the above, -that occupation reaches as far as it is effective. How far it is -effective is a question of the special case. It is obvious that when -the agent of a State takes possession of a territory and makes a -settlement on a certain spot of it, he intends thereby to acquire a vast -area by his occupation. Everything depends, therefore, upon the fact how -far around the settlement or settlements the established responsible -authority that governs the territory in the name of the possessor -succeeds in gradually extending the established sovereignty. The payment -of a tribute on the part of tribes settled far away, the fact that -flying columns of the military or the police sweep, when necessary, -remote spots, and many other facts, can show how far round the -settlements the possessor is really able to assert the established -authority. But it will always be difficult to mark exactly in this way -the boundary of an effective occupation, since naturally the tendency -prevails to extend the sway constantly and gradually over a wider area. -It is, therefore, a well-known fact that disputes concerning the -boundaries of occupations can only rarely be decided on the basis of -strict law; they must nearly always be compromised, whether by a treaty -or by arbitration.[442] - -[Footnote 439: Claim of the United States in the Oregon Boundary dispute -(1827) with Great Britain. See Twiss, I. [p][p] 126 and 127, and his "The -Oregon Question Examined" (1846); Phillimore, I. [p] 250; Hall, [p] 34.] - -[Footnote 440: Claim of the United States in their dispute with Spain -concerning the boundary of Louisiana (1803), approved of by Twiss, I. [p] -125.] - -[Footnote 441: This is the so-called "right of contiguity," approved of -by Twiss, I. [p][p] 124 and 131.] - -[Footnote 442: The Institute of International Law, in 1887, at its -meeting in Lausanne, adopted a "Projet de declaration internationale -relatif aux occupations de territoires," comprising ten articles; see -Annuaire, X. p. 201.] - -[Sidenote: Protectorate as Precursor of Occupation.] - -[p] 226. The growing desire to acquire vast territories as colonies on the -part of States unable at once to occupy effectively such territories -has, in the second half of the nineteenth century, led to the -contracting of agreements with the chiefs of natives inhabiting -unoccupied territories, by which these chiefs commit themselves to the -"protectorate" of States that are members of the Family of Nations. -These so-called protectorates are certainly not protectorates in the -technical sense of the term designating the relation that exists between -a strong and a weak State through a treaty by which the weak State -surrenders itself into the protection of the strong and transfers to the -latter the management of its more important international -relations.[443] Neither can they be compared with the protectorate of -members of the Family of Nations exercised over such non-Christian -States as are outside that family,[444] because the respective chiefs of -natives are not the heads of States, but heads of tribal communities -only. Such agreements, although they are named "Protectorates," are -nothing else than steps taken to exclude other Powers from occupying the -respective territories. They give, like discovery, an inchoate title, -and are preparations and precursors of future occupations. - -[Footnote 443: See above, [p][p] 92 and 93.] - -[Footnote 444: See above, [p] 94.] - -[Sidenote: Spheres of influence.] - -[p] 227. The uncertainty of the extent of an occupation and the tendency -of every colonising State to extend its occupation constantly and -gradually into the interior, the "Hinterland," of an occupied territory, -has led several States which have colonies in Africa to secure for -themselves "spheres of influence" by international treaties with other -interested Powers. Spheres of influence are therefore the names of such -territories as are exclusively reserved for future occupation on the -part of a Power which has effectively occupied adjoining territories. In -this way disputes are avoided for the future, and the interested Powers -can gradually extend their sovereignty over vast territories without -coming into conflict with other Powers. Thus, to give some examples, -Great Britain has concluded treaties regarding spheres of influence with -Portugal[445] in 1890, with Italy[446] in 1891, with Germany[447] in -1886 and 1890, and with France[448] in 1898.[449] - -[Footnote 445: See Martens, N.R.G. 2nd Ser. XVIII. p. 558.] - -[Footnote 446: See Martens, N.R.G. 2nd Ser. XVIII. p. 175.] - -[Footnote 447: See Martens, N.R.G. 2nd Ser. XII. p. 298, and XVI. p. -895.] - -[Footnote 448: See Martens, N.R.G. 2nd Ser. XXIX. p. 116.] - -[Footnote 449: Protectorates and Spheres of Influence are exhaustively -treated in Hall, "Foreign Powers and Jurisdiction of the British Crown," -[p][p] 92-100; but Hall fails to distinguish between protectorates over -Eastern States and protectorates over native tribes.] - -[Sidenote: Consequences of Occupation.] - -[p] 228. As soon as a territory is occupied by a member of the Family of -Nations, it comes within the sphere of the Law of Nations, because it -constitutes a portion of the territory of a subject of International -Law. No other Power can acquire it hereafter through occupation, unless -the present possessor has either intentionally withdrawn from it or has -been successfully driven away by the natives without making efforts, or -without capacity, to re-occupy it.[450] On the other hand, the Power -which now exercises sovereignty over the occupied territory is hereafter -responsible for all events of international importance on the territory. -Such Power has in especial to keep up a certain order among the native -tribes in order to restrain them from acts of violence against -neighbouring territories, and has eventually to punish them for such -acts. - -[Footnote 450: See below, [p] 247.] - -A question of some importance is how far occupation affects private -property of the inhabitants of the occupied territory. As according to -the modern conception of State territory the latter is not identical -with private property of the State, occupation brings a territory under -the sovereignty only of the occupying State, and therefore in no wise -touches or affects existing private property of the inhabitants. In the -age of the discoveries, occupation was indeed considered to include a -title to property over the whole occupied land, but nowadays this can no -longer be maintained. Being now their sovereign, the occupying State may -impose any burdens it likes on its new subjects, and may, therefore, -even confiscate their private property; but occupation as a mode of -acquiring territory does not of itself touch or affect private property -thereon. If the Municipal Law of the occupying State does give a title -to private property over the whole occupied land, such title is not -based on International Law. - - -XIV - -ACCRETION - - Grotius, II. c. 8, [p][p] 8-16--Hall, [p] 37--Lawrence, [p] - 75--Phillimore, I. [p][p] 240-241--Twiss, I. [p][p] 131 and - 154--Moore, I. [p] 82--Bluntschli, [p][p] 294-295--Hartmann, [p] - 61--Heffter, [p] 69--Holtzendorff in Holtzendorff, II. pp. - 266-268--Gareis, [p] 20--Liszt, [p] 10--Ullmann, [p] 92--Bonfils, - No. 533--Despagnet, No. 387--Pradier-Fodere, II. Nos. - 803-816--Rivier, I. pp. 179-180--Nys, II. pp. 3-7--Calvo, I. [p] - 266--Fiore, II. No. 852, and Code, Nos. 1068-1070--Martens, I. [p] - 90--Heimburger, "Der Erwerb der Gebietshoheit" (1888), p. 107. - -[Sidenote: Conception of Accretion.] - -[p] 229. Accretion is the name for the increase of land through new -formations. Such new formations may be a modification only of the -existing State territory, as, for instance, where an island rises within -such river or a part of it as is totally within the territory of one and -the same State; and in such case there is no increase of territory to -correspond with the increase of land. On the other hand, many new -formations occur which really do enlarge the territory of the State to -which they accrue, as, for instance, where an island rises within the -maritime belt. And it is a customary rule of the Law of Nations that -enlargement of territory, if any, created through new formations, takes -place _ipso facto_ by the accretion, without the State concerned taking -any special step for the purpose of extending its sovereignty. Accretion -must, therefore, be considered as a mode of acquiring territory. - -[Sidenote: Different kinds of Accretion.] - -[p] 230. New formations through accretion may be artificial or natural. -They are artificial if they are the outcome of human work. They are -natural if they are produced through operation of nature. And within the -circle of natural formations different kinds must again be -distinguished--namely, alluvions, deltas, new-born islands, and -abandoned river beds. - -[Sidenote: Artificial Formations.] - -[p] 231. Artificial formations are embankments, breakwaters, dykes, and -the like, built along the river or the coast-line of the sea. As such -artificial new formations along the bank of a boundary river may more -or less push the volume of water so far as to encroach upon the other -bank of the river, and as no State is allowed to alter the natural -condition of its own territory to the disadvantage[451] of the natural -conditions of a neighbouring State territory, a State cannot build -embankments, and the like, of such kind without a previous agreement -with the neighbouring State. But every State may construct such -artificial formations as far into the sea beyond the low-water mark as -it likes, and thereby gain considerably in land and also in territory, -since the extent of the at least three miles wide maritime belt is now -to be measured from the extended shore. - -[Footnote 451: See above, [p] 127.] - -[Sidenote: Alluvions.] - -[p] 232. Alluvion is the name for an accession of land washed up on the -sea-shore or on a river-bank by the waters. Such accession is as a rule -produced by a slow and gradual process, but sometimes also through a -sudden act of violence, the stream detaching a portion of the soil from -one bank of a river, carrying it over to the other bank, and embedding -it there so as to be immovable (_avulsio_). Through alluvions the land -and also the territory of a State may be considerably enlarged. For, if -the alluvion takes place on the shore, the extent of the territorial -maritime belt is now to be measured from the extended shore. And, if the -alluvion takes place on the one bank of a boundary river, and the course -of the river is thereby naturally so altered that the waters in -consequence cover a part of the other bank, the boundary line, which -runs through the middle or through the mid-channel,[452] may thereby be -extended into former territory of the other riparian State. - -[Footnote 452: See above, [p] 199, No. 1.] - -[Sidenote: Deltas.] - -[p] 233. Similar to alluvions are Deltas. Delta is the name for a tract of -land at the mouth of a river shaped like the Greek letter [Greek: D], -which land owes its existence to a gradual deposit by the river of sand, -stones, and earth on one particular place at its mouth. As the Deltas -are continually increasing, the accession of land they produce may be -very considerable, and such accession is, according to the Law of -Nations, considered an accretion to the land of the State to whose -territory the mouth of the respective river belongs, although the Delta -may be formed outside the territorial maritime belt. It is evident that -in the latter case an increase of territory is the result, since the at -least three miles wide maritime belt is now to be measured from the -shore of the Delta. - -[Sidenote: New-born Islands.] - -[p] 234. The same and other natural processes which create alluvions on -the shore and banks, and Deltas at the mouths of rivers, lead to the -birth of new islands. If they rise on the High Seas outside the -territorial maritime belt, they are no State's land, and may be acquired -through occupation on the part of any State. But if they rise in rivers, -lakes, and within the maritime belt, they are, according to the Law of -Nations, considered accretions to the neighbouring land. It is for this -reason that such new islands in boundary rivers as rise within the -boundary line of one of the riparian States accrue to the land of such -State, and that, on the other hand, such islands as rise upon the -boundary line are divided into parts by it, the respective parts -accruing to the land of the riparian States concerned. If an island -rises within the territorial maritime belt, it accrues to the land of -the littoral State, and the extent of the maritime belt is now to be -measured from the shore of the new-born island. - -An illustrative example is the case[453] of the _Anna_. In 1805, during -war between Great Britain and Spain, the British privateer _Minerva_ -captured the Spanish vessel _Anna_ near the mouth of the River -Mississippi. When brought before the British Prize Court, the United -States claimed the captured vessel on the ground that she was captured -within the American territorial maritime belt. Lord Stowell gave -judgment in favour of this claim, because, although it appeared that the -capture did actually take place more than three miles off the coast of -the continent, the place of capture was within three miles of some small -mud-islands composed of earth and trees drifted down into the sea. - -[Footnote 453: See 5 C. Rob. 373.] - -[Sidenote: Abandoned Riverbeds.] - -[p] 235. It happens sometimes that a river abandons its bed entirely or -dries up altogether. If such river was a boundary river, the abandoned -bed is now the natural boundary. But often the old boundary line cannot -be ascertained, and in such cases the boundary line is considered to run -through the middle of the abandoned bed, and the portions _ipso facto_ -accrue to the land of the riparian States, although the territory of one -of these States may become thereby enlarged, and that of the other -diminished. - - -XV - -SUBJUGATION - - Vattel, III. [p][p] 199-203--Hall, [p][p] 204-205--Lawrence, [p] - 77--Halleck, II. pp. 467-498--Taylor, [p] 220--Walker, [p] - 11--Wheaton, [p] 165--Moore, I. [p] 87--Bluntschli, [p][p] 287-289, - 701-702--Heffter, [p] 178--Liszt, [p] 10--Ullmann, [p][p] 92 and - 97--Bonfils, No. 535--Despagnet, Nos. 387-390--Rivier, I. pp. - 181-182, II. 436-441--Nys, II. pp. 40-46--Calvo, V. [p][p] 3117, - 3118--Fiore, II. No. 863, III. No. 1693, and Code, Nos. - 1078-1081--Martens, I. [p] 91--Holtzendorff, "Eroberung und - Eroberungsrecht" (1871)--Heimburger, "Der Erwerb der - Gebietshoheit" (1888), pp. 121-132--Westlake in _The Law Quarterly - Review_, XVII. (1901), p. 392. - -[Sidenote: Conception of Conquest and of Subjugation.] - -[p] 236. Conquest is the taking possession of enemy territory through -military force in time of war. Conquest alone does not _ipso facto_ make -the conquering State the sovereign of the conquered territory, although -such territory comes through conquest for the time under the sway of the -conqueror. Conquest is only a mode of acquisition if the conqueror, -after having firmly established the conquest, formally annexed the -territory. Such annexation makes the enemy State cease to exist and -thereby brings the war to an end. And as such ending of war is named -subjugation, it is conquest followed by subjugation, and not conquest -alone, which gives a title and is a mode of acquiring territory.[454] It -is, however, quite usual to speak of conquest as a title, and everybody -knows that subjugation after conquest is thereby meant. But it must be -specially mentioned that, if a belligerent conquers a part of the enemy -territory and makes afterwards the vanquished State cede the conquered -territory in the treaty of peace, the mode of acquisition is not -subjugation but cession.[455] - -[Footnote 454: Concerning the distinction between conquest and -subjugation, see below, vol. II. [p] 264.] - -[Footnote 455: See above, [p][p] 216 and 219.] - -[Sidenote: Subjugation in Contradistinction to Occupation.] - -[p] 237. Some writers[456] maintain that subjugation is only a special -case of occupation, because, as they assert, through conquest the enemy -territory becomes no State's land and the conqueror can acquire it by -turning his military occupation into absolute occupation. Yet this -opinion cannot be upheld, because military occupation, which is -conquest, in no way makes enemy territory no State's land. Conquered -enemy territory, although actually in possession and under the sway of -the conqueror, remains legally under the sovereignty of the enemy until -through annexation it comes under the sovereignty of the conqueror. -Annexation turns the conquest into subjugation. It is the very -annexation which _uno actu_ makes the vanquished State cease to exist -and brings the territory under the conqueror's sovereignty. Thus the -subjugated territory has not for one moment been no State's land, but -comes from the enemy's into the conqueror's sovereignty, although not -through cession, but through annexation. - -[Footnote 456: Holtzendorff, II. p. 255; Heimburger, p. 128; Salomon, p. -24.] - -[Sidenote: Justification of Subjugation as a Mode of Acquisition.] - -[p] 238. As long as a Law of Nations has been in existence, the States as -well as the vast majority of writers have recognised subjugation as a -mode of acquiring territory. Its justification lies in the fact that war -is a contention between States for the purpose of overpowering one -another. States which go to war know beforehand that they risk more or -less their very existence, and that it may be a necessity for the victor -to annex the conquered enemy territory, be it in the interest of -national unity or of safety against further attacks, or for other -reasons. One must hope that the time will come when war will disappear -entirely, but, as long as war exists, subjugation will also be -recognised. If some writers[457] refuse to recognise subjugation at all -as a mode of acquiring territory, they show a lack of insight into the -historical development of States and nations.[458] - -[Footnote 457: Bonfils, No. 535; Fiore, II. No. 863, III. No. 1693, and -Code N. See also Despagnet, Nos. 387-390.] - -[Footnote 458: It should be mentioned that the Pan-American Congress at -Washington, 1890, passed a resolution that conquest should hereafter not -be a mode of acquisition of territory in America; see Moore, I. [p] 87.] - -[Sidenote: Subjugation of the whole or of a part of Enemy Territory.] - -[p] 239. Subjugation is as a rule a mode of acquiring the entire enemy -territory. The actual process is regularly that the victor destroys the -enemy military forces, takes possession of the enemy territory, and then -annexes it, although the head and the Government of the extinguished -State might have fled, might protest, and still keep up a claim. Thus -after the war with Austria and her allies in 1866, Prussia subjugated -the territories of the Duchy of Nassau, the Kingdom of Hanover, the -Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-the-Main; -and Great Britain subjugated in 1900 the territories of the Orange Free -State and the South African Republic. - -But it is possible, although it will nowadays hardly occur, for a State -to conquer and annex a part of enemy territory, whether the war ends by -a Treaty of Peace in which the vanquished State, without ceding the -conquered territory, submits silently[459] to the annexation, or by -simple cessation of hostilities.[460] - -[Footnote 459: See below, vol. II. [p] 273.] - -[Footnote 460: See below, vol. II. [p] 263.] - -It must, however, be emphasised that such a mode of acquiring a part of -enemy territory is totally different from forcibly taking possession of -a part thereof during the continuance of war. Such a conquest, although -the conqueror may intend to keep the conquered territory and therefore -annex it, is not a title as long as the war has not terminated either -actually through simple cessation of hostilities or through a Treaty of -Peace. Therefore, the practice, which sometimes prevails, of annexing a -conquered part of enemy territory during war cannot be approved. -Concerning subjugation either of the whole or of a part of enemy -territory, it must be asserted that annexation gives a title only after -a _firmly established_ conquest. So long as war continues, conquest is -not firmly established.[461] - -[Footnote 461: See below, vol. II. [p] 60, concerning guerilla war after -the termination of real war. Many writers, however, deny that a conquest -is firmly established as long as guerilla war is going on.] - -[Sidenote: Consequences of Subjugation.] - -[p] 240. Although subjugation is an original mode of acquisition, since -the sovereignty of the new acquirer is not derived from that of the -former owner State, the new owner State is nevertheless the successor of -the former owner State as regards many points which have been discussed -above ([p] 82). It must be specially mentioned that, as far as the Law of -Nations is concerned, the subjugator does not acquire the private -property of the inhabitants of the annexed territory. Being now their -Sovereign, the subjugating State may indeed impose any burdens it -pleases on its new subjects, it may even confiscate their private -property, since a Sovereign State can do what it likes with its -subjects, but subjugation itself does not by International Law touch or -affect private property. - -As regards the national status of the subjects of the subjugated State, -doctrine and practice agree that such enemy subjects as are domiciled on -the annexed territory and remain there after annexation become _ipso -facto_ by the subjugation[462] subjects of the subjugator. But the -national status of such enemy subjects as are domiciled abroad and do -not return, and further of such as leave the country before the -annexation or immediately afterwards, is matter of dispute. Some writers -maintain that these individuals do in spite of their absence become -subjects of the subjugator, others emphatically deny it. Whereas the -practice of the United States of America seems to be in conformity with -the latter opinion,[463] the practice of Prussia in 1866 was in -conformity with the former. Thus in the case of Count Platen-Hallermund, -a Cabinet Minister of King George V. of Hanover, who left Hanover with -his King before the annexation in 1866 and was in 1868 prosecuted for -high treason before the Supreme Prussian Court at Berlin, this Court -decided that the accused had become a Prussian subject through the -annexation of Hanover.[464] I believe that a distinction must be made -between those individuals who leave the country _before_ and those who -leave it _after_ annexation. The former are not under the sway of the -subjugator at the time of annexation, and, since the personal supremacy -of their home State terminates with the latter's extinction through -annexation, they would seem to be outside the sovereignty of the -subjugator. But those individuals who leave the country _after_ -annexation leave it at a time when they have become subjects of the new -Sovereign, and they therefore remain such subjects even after they have -left the country, for there is no rule of the Law of Nations in -existence which obliges a subjugator to grant the privilege of -emigration[465] to the inhabitants of the conquered territory. - -[Footnote 462: See Hall _v._ Campbell (1774), 1 Cowper 1208, and United -States _v._ Repentigny (1866), 5 Wallace, 211. The case is similar to -that of cession: see above, [p] 219; Keith, "The Theory of State -Succession" (1907), pp. 45 and 48; Moore, III. [p] 379.] - -[Footnote 463: See Halleck, II. p. 476.] - -[Footnote 464: See Halleck, II. p. 476, on the one hand, and, on the -other, Rivier, II. p. 436. Valuable opinions of Zachariae and Neumann, -who deny that Count Platen was a Prussian subject, are printed in the -"Deutsche Strafrechts-Zeitung" (1868), pp. 304-320.] - -[Footnote 465: Both Westlake and Halleck state that the inhabitants -_must_ have a free option to stay or leave the country; but there is no -rule of International Law which imposes the duty upon a subjugator to -grant this option.] - -Different from the fact that enemy subjects become through annexation -subjects of the subjugator is the question what position they acquire -within the subjugating State. This question is one of Municipal, and not -of International Law. The subjugator can, if he likes, allow them to -emigrate and to renounce their newly acquired citizenship, and the -Municipal Law of the subjugating State can put them in any position it -likes, can in especial grant or refuse them the same rights as those -which its citizens by birth enjoy. - -[Sidenote: Veto of third Powers.] - -[p] 241. Although subjugation is an original mode of acquiring territory -and no third Power has as a rule[466] a right of intervention, the -conqueror has not in fact an unlimited possibility of annexation of the -territory of the vanquished State. When the balance of power is -endangered or when other vital interests are at stake, third Powers can -and will intervene, and history records many instances of such -interventions. But it must be emphasised that the validity of the title -of the subjugator does not depend upon recognition on the part of other -Powers. And a mere protest of a third Power is of no legal weight -either. - -[Footnote 466: But this rule has exceptions, as in the case of a State -whose independence and integrity have been guaranteed by one or more -Powers.] - - -XVI - -PRESCRIPTION - - Grotius, II. c. 4--Vattel, I. [p][p] 140-151--Hall, [p] - 36--Westlake, I. pp. 92-94--Lawrence, [p] 78--Phillimore, I. - [p][p] 251-261--Twiss, I. [p] 129--Taylor, [p][p] 218-219--Walker, - [p] 13--Wheaton, [p] 164--Moore, I. [p] 88--Bluntschli, [p] - 290--Hartmann, [p] 61--Heffter, [p] 12--Holtzendorff in - Holtzendorff, II. p. 255--Ullmann, [p] 92--Bonfils, No. - 534--Merignhac, II. p. 412--Despagnet, No. 380--Pradier-Fodere, - II. Nos. 820-829--Rivier, I. pp. 182-184--Nys, II. pp. - 34-39--Calvo, I. [p][p] 264-265--Fiore, II Nos. 850-851, and Code, - Nos. 1074-1077--Martens, I. [p] 90--G. F. Martens, [p][p] - 70-71--Bynkershoek, "Quaestiones juris publici," IV. c. - 12--Heimburger, "Der Erwerb der Gebietshoheit" (1888), pp. - 140-155--Ralston in A.J. IV. (1910), pp. 133-144. - -[Sidenote: Conception of Prescription.] - -[p] 242. Since the existence of a science of the Law of Nations there has -always been opposition to prescription as a mode of acquiring territory. -Grotius rejected the usucaption of the Roman Law, yet adopted the same -law's _immemorial_ prescription[467] for the Law of Nations. But whereas -a good many writers[468] still defend that standpoint, others[469] -reject prescription altogether. Again, others[470] go beyond Grotius and -his followers and do not require possession from time _immemorial_, but -teach that an undisturbed continuous possession can under certain -conditions produce a title for the possessor, if the possession has -lasted for some length of time. - -[Footnote 467: See Grotius, II. c. 4, [p][p] 1, 7, 9.] - -[Footnote 468: See, for instance, Heffter, [p] 12; Martens, [p] 90.] - -[Footnote 469: G. F. Martens, [p] 71; Klueber, [p][p] 6 and 125; -Holtzendorff, II. p. 255; Ullmann, [p] 92.] - -[Footnote 470: Vattel, II. [p] 147; Wheaton, [p] 165; Phillimore, I. [p] -259; Hall, [p] 36; Bluntschli, [p] 290; Pradier-Fodere, II. No. 825; -Bonfils, No. 534, and many others.] - -This opinion would indeed seem to be correct, because it recognises -theoretically what actually goes on in practice. There is no doubt that -in the practice of the members of the Family of Nations a State is -considered to be the lawful owner even of those parts of its territory -of which originally it took possession wrongfully and unlawfully, -provided only the possessor has been in undisturbed possession for such -a length of time as is necessary to create the general conviction among -the members of the Family of Nations that the present condition of -things is in conformity with international order. Such prescription -cannot be compared with the usucaption of Roman Law because the latter -required _bona-fide_ possession, whereas the Law of Nations recognises -prescription both in cases where the State is in _bona-fide_ possession -and in cases where it is not. The basis of prescription in International -Law is nothing else than general recognition[471] of a fact, however -unlawful in its origin, on the part of the members of the Family of -Nations. And prescription in International Law may therefore be defined -as _the acquisition of sovereignty over a territory through continuous -and undisturbed exercise of sovereignty over it during such a period as -is necessary to create under the influence of historical development the -general conviction that the present condition of things is in conformity -with international order_. Thus, prescription in International Law has -the same rational basis as prescription in Municipal Law--namely, the -creation of stability of order. - -[Footnote 471: This is pointed out with great lucidity by Heimburger, -pp. 151-155; he rejects, however, prescription as a mode of acquiring -territory, maintaining that there is a customary rule of International -Law in existence according to which recognition can make good originally -wrongful possession.] - -[Sidenote: Prescription how effected.] - -[p] 243. From the conception of prescription, as above defined, it becomes -apparent that no general rule can be laid down as regards the length of -time and other circumstances which are necessary to create a title by -prescription. Everything depends upon the merits of the individual case. -As long as other Powers keep up protests and claims, the actual exercise -of sovereignty is not undisturbed, nor is there the required general -conviction that the present condition of things is in conformity with -international order. But after such protests and claims, if any, cease -to be repeated, the actual possession ceases to be disturbed, and thus -under certain circumstances matters may gradually ripen into that -condition which is in conformity with international order. The question, -at what time and under what circumstances such a condition of things -arises, is not one of law but of fact. The question, for instance, -whether, although the three partitions of Poland were wrongful and -unlawful acts, Prussia, Austria, and Russia have now a good title by -prescription to hold territories which were formerly Polish must, I -doubt not, be answered in the affirmative. For all the members of the -Family of Nations have now silently acquiesced in the present condition -of things, although as late as 1846 Great Britain and France protested -against the annexation of the Republic of Cracow on the part of Austria. -In spite of the fact that the Polish nation has not yet given up its -hope of seeing a Polish State re-established on the former Polish -territory, the general conviction among the members of the Family of -Nations is that the present condition of things is in conformity with -international order. When, to give another example, a State which -originally held an island _mala fide_ under the title by occupation, -knowing well that this land had already been occupied by another State, -has succeeded in keeping up its possession undisturbed for so long a -time that the former possessor has ceased to protest and has silently -dropped the claim, the conviction will be prevalent among the members of -the Family of Nations that the present condition of things is in -conformity with international order. These examples show why a certain -number of years[472] cannot, once for all, be fixed to create the title -by prescription. There are indeed immeasurable and imponderable -circumstances and influences besides the mere run of time[473] at work -to create the conviction on the part of the members of the Family of -Nations that in the interest of stability of order the present possessor -should be considered the rightful owner of a territory. And these -circumstances and influences, which are of a political and historical -character, differ so much in the different cases that the length of time -necessary for prescription must likewise differ. - -[Footnote 472: Vattel (II. [p] 151) suggests that the members of the -Family of Nations should enter into an agreement stipulating the number -of years necessary for prescription, and David Dudley Field proposes the -following rule (52) in his Outlines of an International Code: "The -uninterrupted possession of territory or other property for fifty years -by a nation excludes the claim of every other nation."] - -[Footnote 473: Heffter's ([p] 12) dictum, "Hundert Jahre Unrecht ist noch -kein Tag Recht" is met by the fact that it is not the operation of time -alone, but the co-operation of other circumstances and influences which -creates the title by prescription.] - - -XVII - -LOSS OF STATE TERRITORY - - Hall, [p] 34--Phillimore, I. [p][p] 284-295--Moore, I. [p][p] 89 and - 90--Holtzendorff in Holtzendorff, II. pp. 274-279--Gareis, [p] - 70--Liszt, [p] 10--Ullmann, [p] 101--Pradier-Fodere, II. Nos. - 850-852--Rivier, I. [p] 13--Fiore, II. No. 865--Martens, I. [p] 92. - -[Sidenote: Six modes of losing State Territory.] - -[p] 244. To the five modes of acquiring sovereignty over territory -correspond five modes of losing it--namely, cession, dereliction, -operation of nature, subjugation, prescription. But there is a sixth -mode of losing territory--namely, revolt. No special details are -necessary with regard to loss of territory through subjugation, -prescription, and cession, except that it is of some importance to -repeat here that the historical cases of pledging, leasing, and giving -territory to another State to administer are in fact, although not in -strict law, nothing else than cessions[474] of territory. But operation -of nature, revolt, and dereliction must be specially discussed. - -[Footnote 474: See above, [p][p] 171 and 216.] - -[Sidenote: Operation of Nature.] - -[p] 245. Operation of nature as a mode of losing corresponds to accretion -as a mode of acquiring territory. Just as through accretion a State may -become enlarged, so it may become diminished through the disappearance -of land and other operations of nature. And the loss of territory -through operation of nature takes place _ipso facto_ by such operation. -Thus, if an island near the shore disappears through volcanic action, -the extent of the maritime territorial belt of the respective littoral -State is hereafter to be measured from the low-water mark of the shore -of the continent, instead of from the shore of the former island. Thus, -further, if through a piece of land being detached by the current of a -river from one bank and carried over to the other bank, the river alters -its course and covers now part of the land on the bank from which such -piece became detached, the territory of one of the riparian States may -decrease through the boundary line being _ipso facto_ transferred to the -present middle or mid-channel of the river. - -[Sidenote: Revolt.] - -[p] 246. Revolt followed by secession is a mode of losing territory to -which no mode of acquisition corresponds.[475] Revolt followed by -secession has, as history teaches, frequently been a cause of loss of -territory. Thus the Netherlands fell away from Spain in 1579, Belgium -from the Netherlands in 1830, the United States of America from Great -Britain in 1776, Brazil from Portugal in 1822, the former Spanish South -American States from Spain in 1810, Greece from Turkey in 1830, Cuba -from Spain in 1898, Panama from Colombia in 1903. The question at what -time a loss of territory through revolt is consummated cannot be -answered once for all, since no hard-and-fast rule can be laid down -regarding the time when it can be said that a State broken off from -another has established itself safely and permanently. The matter has, -as will be remembered, been treated above ([p] 74), in connection with -recognition. It may well happen that, although such a seceded State is -already recognised by a third Power, the mother country does not -consider the territory to be lost and succeeds in reconquering it. - -[Footnote 475: The possible case where a province revolts, secedes from -the mother country, and, after having successfully defended itself -against the attempts of the latter to reconquer it, unites itself with -the territory of another State, is a case of merger by cession of the -whole territory.] - -[Sidenote: Dereliction.] - -[p] 247. Dereliction as a mode of losing corresponds to occupation as a -mode of acquiring territory. Dereliction frees a territory from the -sovereignty of the present owner State. Dereliction is effected through -the owner State's complete abandonment of the territory with the -intention of withdrawing from it for ever, thus relinquishing -sovereignty over it. Just as occupation[476] requires, first, the actual -taking into possession (_corpus_) of territory and, secondly, the -intention (_animus_) to acquire sovereignty over it, so dereliction -requires, first, actual abandonment of a territory, and, secondly, the -intention to give up sovereignty over it. Actual abandonment alone does -not involve dereliction as long as it must be presumed that the owner -has the will and ability to retake possession of the territory. Thus, -for instance, if the rising of natives forces a State to withdraw from a -territory, such territory is not derelict as long as the former -possessor is able and makes efforts to retake possession. It is only -when a territory is really derelict that any State may acquire it -through occupation.[477] History knows of several such cases. But very -often, when such occupation of derelict territory occurs, the former -owner protests and tries to prevent the new occupier from acquiring it. -The cases of the island of Santa Lucia and of the Delagoa Bay may be -quoted as illustrations:-- - -[Footnote 476: See above, [p] 222.] - -[Footnote 477: See above, [p] 228.] - -(_a_) In 1639 Santa Lucia, one of the Antilles Islands, was occupied by -England, but in the following year the English settlers were massacred -by the natives. No attempt was made by England to retake the island, and -France, considering it no man's land, took possession of it in 1650. In -1664 an English force under Lord Willoughby attacked the French, drove -them into the mountains, and held the island until 1667, when the -English withdrew and the French returned from the mountains. No further -step was made by England to retake the island, but she nevertheless -asserted for many years to come that she had not abandoned it _sine spe -redeundi_, and that, therefore, France in 1650 had no right to consider -it no man's land. Finally, however, England resigned her claims by the -Peace Treaty of Paris of 1763.[478] - -[Footnote 478: See Hall, [p] 34, and Moore, I. [p] 89.] - -(_b_) In 1823 England occupied, in consequence of a so-called cession -from native chiefs, a piece of territory at Delagoa Bay, which Portugal -claimed as part of the territory owned by her at the bay, maintaining -that the chiefs concerned were rebels. The dispute was not settled until -1875, when the case was submitted to the arbitration of the President of -France. The award was given in favour of Portugal, since the -interruption of the Portuguese occupation in 1823 was not to be -considered as abandonment of a territory over which Portugal had -exercised sovereignty for nearly three hundred years.[479] - -[Footnote 479: See Hall, [p] 34. The text of the award is printed in -Moore, "Arbitrations," V. p. 4984.] - - - - -CHAPTER II - -THE OPEN SEA - - -I - -RISE OF THE FREEDOM OF THE OPEN SEA - - Grotius, II. c. 2, [p] 3--Pufendorf, IV. c. 5, [p] 5--Vattel, I. [p][p] - 279-286--Hall, [p] 40--Westlake, I. pp. 161-162--Phillimore, I. [p][p] - 172-179--Taylor, [p][p] 242-246--Walker, Science, pp. - 163-171--Wheaton, [p][p] 186-187--Hartmann, [p] 64--Heffter, [p] - 73--Stoerk in Holtzendorff, II. pp. 483-490--Bonfils, Nos. - 573-576--Despagnet, No. 401--Pradier-Fodere, II. Nos. - 871-874--Nys, II. pp. 132-139--Merignhac, II. pp. 498-505--Calvo, - I. [p][p] 347-352--Fiore, II. Nos. 718-726--Martens, I. [p] 97--Perels, - [p] 4--Azuni, "Diritto maritimo" (1796), 1, c. I. Article - III.--Cauchy, "Le droit maritime international considere dans ses - origines," 2 vols. (1862)--Nys, "Les origines du droit - international" (1894), pp. 377-388--Castel, "Du principe de la - liberte des mers" (1900), pp. 1-15--Fulton, "The Sovereignty of - the Seas" (1911), pp. 1-56. - -[Sidenote: Former Claims to Control over the Sea.] - -[p] 248. In antiquity and the first half of the Middle Ages navigation on -the Open Sea was free to everybody. According to Ulpianus,[480] the sea -is open to everybody by nature, and, according to Celsus,[481] the sea, -like the air, is common to all mankind. Since no Law of Nations in the -modern sense of the term existed during antiquity and the greater part -of the Middle Ages, no importance is to be attached to the pronouncement -of Antoninus Pius, Roman Emperor from 138 to 161:--"Being[482] the -Emperor of the world, I am consequently the law of the sea." Nor is it -of importance that the Emperors of the old German Empire, who were -considered to be the successors of the Roman Emperors, styled themselves -among other titles "King of the Ocean." Real claims to sovereignty over -parts of the Open Sea begin, however, to be made in the second half of -the Middle Ages. And there is no doubt whatever that at the time when -the modern Law of Nations gradually rose it was the conviction of the -States that they could extend their sovereignty over certain parts of -the Open Sea. Thus, the Republic of Venice was recognised as the -Sovereign over the Adriatic Sea, and the Republic of Genoa as the -Sovereign of the Ligurian Sea. Portugal claimed sovereignty over the -whole of the Indian Ocean and of the Atlantic south of Morocco, Spain -over the Pacific and the Gulf of Mexico, both Portugal and Spain basing -their claims on two Papal Bulls promulgated by Alexander VI. in 1493, -which divided the new world between these Powers. Sweden and Denmark -claimed sovereignty over the Baltic, Great Britain over the Narrow Seas, -the North Sea, and the Atlantic from the North Cape to Cape Finisterre. - -[Footnote 480: L. 13, pr. D. VIII. 4: mari quod natura omnibus patet.] - -[Footnote 481: L. 3 D. XLIII. 8: Maris communem usum omnibus hominibus -ut aeris.] - -[Footnote 482: L. 9 D. XIV. 2: [Greek: ego men tou kosmou kyrios, -ho de nomos tes thalasses. ]] - -These claims have been more or less successfully asserted for several -hundreds of years. They were favoured by a number of different -circumstances, such as the maintenance of an effective protection -against piracy for instance. And numerous examples can be adduced which -show that such claims have more or less been recognised. Thus, Frederick -III., Emperor of Germany, had in 1478 to ask the permission of Venice -for a transportation of corn from Apulia through the Adriatic Sea.[483] -Thus, Great Britain in the seventeenth century compelled foreigners to -take out an English licence for fishing in the North Sea; and when in -1636 the Dutch attempted to fish without such licence, they were -attacked and compelled to pay _l._30,000 as the price for the -indulgence.[484] Again, when Philip II. of Spain was in 1554 on his way -to England to marry Queen Mary, the British Admiral, who met him in the -"British Seas," fired on his ship for flying the Spanish flag. And the -King of Denmark, when returning from a visit to James I. in 1606, was -forced by a British captain, who met him off the mouth of the Thames, to -strike the Danish flag. - -[Footnote 483: See Walker, "History," I. p. 163.] - -[Footnote 484: This and the two following examples are quoted by Hall, [p] -40.] - -[Sidenote: Practical Expression of claims to Maritime Sovereignty.] - -[p] 249. Maritime sovereignty found expression in maritime ceremonials at -least. Such State as claimed sovereignty over a part of the Open Sea -required foreign vessels navigating on that part to honour its flag[485] -as a symbol of recognition of its sovereignty. So late as 1805 the -British Admiralty Regulations contained an order[486] to the effect that -"when any of His Majesty's ships shall meet with the ships of any -foreign Power within His Majesty's Seas (which extend to Cape -Finisterre), it is expected that the said foreign ships do strike their -topsail and take in their flag, in acknowledgment of His Majesty's -sovereignty in those seas; and if any do resist, all flag officers and -commanders are to use their utmost endeavours to compel them thereto, -and not suffer any dishonour to be done to His Majesty." - -[Footnote 485: See Fulton, "The Sovereignty of the Seas" (1911), pp. 38 -and 204-208.] - -[Footnote 486: Quoted by Hall, [p] 40.] - -But apart from maritime ceremonials maritime sovereignty found -expression in the levying of tolls from foreign ships, in the -interdiction of fisheries to foreigners, and in the control or even the -prohibition of foreign navigation. Thus, Portugal and Spain attempted, -after the discovery of America, to keep foreign vessels altogether out -of the seas over which they claimed sovereignty. The magnitude of this -claim created an opposition to the very existence of such rights. -English, French, and Dutch explorers and traders navigated on the Indian -Ocean and the Pacific in spite of the Spanish and Portuguese -interdictions. And when, in 1580, the Spanish ambassador Mendoza lodged -a complaint with Queen Elizabeth against Drake for having made his -famous voyage to the Pacific, Elizabeth answered that vessels of all -nations could navigate on the Pacific, since the use of the sea and the -air is common to all, and that no title to the ocean can belong to any -nation, since neither nature nor regard for the public use permits any -possession of the ocean.[487] - -[Footnote 487: See Walker, "History," I. p. 161. It is obvious that this -attitude of Queen Elizabeth was in no way the outcome of the conviction -that really no State could claim sovereignty over a part of the Open -Sea. For she herself did not think of dropping the British claims to -sovereignty over the "British Seas." Her arguments against the Spanish -claims were made in the interest of the growing commerce and navigation -of England, and any one daring to apply the same arguments against -England's claims would have incurred her royal displeasure.] - -[Sidenote: Grotius's Attack on Maritime Sovereignty.] - -[p] 250. Queen Elizabeth's attitude was the germ out of which grew -gradually the present freedom of the Open Sea. Twenty-nine years after -her answer to Mendoza, in 1609, appeared Grotius's short treatise[488] -"Mare liberum." The intention of Grotius was to show that the Dutch had -a right of navigation and commerce with the Indies in spite of the -Portuguese interdictions. He contends that the sea cannot be State -property, because it cannot really be taken into possession through -occupation,[489] and that consequently the sea is by nature free from -the sovereignty of any State.[490] The attack of Grotius was met by -several authors of different nations. Gentilis defends Spanish and -English claims in his "Advocatio Hispanica," which appeared in 1613. -Likewise, in 1613 William Welwood defends the English claims in his -book, "De dominio maris." John Selden wrote his "Mare Clausum sive de -dominio maris" in 1618, but it was not printed until 1635. Sir John -Burroughs published in 1653 his book, "The Sovereignty of the British -Seas proved by Records, History, and the Municipal Laws of this -Kingdom." And in defence of the claims of the Republic of Venice Paolo -Sarpi published in 1676 his book "Del dominio del mare Adriatico." The -most important of these books defending maritime sovereignty is that of -Selden. King Charles I., by whose command Selden's "Mare Clausum" was -printed in 1635, was so much impressed by it that he instructed in 1629 -his ambassador in the Netherlands to complain of the audacity of Grotius -and to request that the author of the "Mare liberum" should be -punished.[491] - -[Footnote 488: Its full title is: "Mare liberum, seu de jure quod -Batavis competit ad Indicana commercia Dissertatio," and it is now -proved that this short treatise is only chapter 12 of another work of -Grotius, "De jure praedae," which was found in manuscript in 1864 and -published in 1868. See above, [p] 53.] - -[Footnote 489: See below, [p] 259.] - -[Footnote 490: Grotius was by no means the first author who defended the -freedom of the sea. See Nys, "Les origines du droit international," pp. -381 and 382.] - -[Footnote 491: See Phillimore, I. [p] 182.] - -The general opposition to Grotius's bold attack on maritime sovereignty -prevented his immediate victory. Too firmly established were the then -recognised claims to sovereignty over certain parts of the Open Sea for -the novel principle of the freedom of the sea to supplant them. Progress -was made regarding one point only--namely, freedom of navigation of the -sea. England had never pushed her claims so far as to attempt the -prohibition of free navigation on the so-called British Seas. And -although Venice succeeded in keeping up her control of navigation on the -Adriatic till the middle of the seventeenth century, it may be said that -in the second half of that century navigation on all parts of the Open -Sea was practically free for vessels of all nations. But with regard to -other points, claims to maritime sovereignty continued to be kept up. -Thus the Netherlands had by article 4 of the Treaty of Westminster, -1674, to acknowledge that their vessels had to salute the British flag -within the "British Seas" as a recognition of British maritime -sovereignty.[492] - -[Footnote 492: See Hall, [p] 40, p. 152, note 1.] - -[Sidenote: Gradual Recognition of the Freedom of the Open Sea.] - -[p] 251. In spite of opposition, the work of Grotius was not to be -undone. All prominent writers of the eighteenth century take up again -the case of the freedom of the Open Sea, making a distinction between -the maritime belt which is to be considered under the sway of the -littoral States, and, on the other hand, the High Seas, which are under -no State's sovereignty. The leading author is Bynkershoek, whose -standard work, "De dominio maris," appeared in 1702. Vattel, G. F. de -Martens, Azuni, and others follow the lead. And although Great Britain -upheld her claim to the salute due to her flag within the "British Seas" -throughout the eighteenth and at the beginning of the nineteenth -century, the principle of the freedom of the Open Sea became more and -more vigorous with the growth of the navies of other States; and at the -end of the first quarter of the nineteenth century this principle became -universally recognised in theory and practice. Great Britain silently -dropped her claim to the salute due to her flag, and with it her claim -to maritime sovereignty, and became now a champion of the freedom of the -Open Sea. When, in 1821, Russia, who was then still the owner of Alaska -in North America, attempted to prohibit all foreign ships from -approaching the shore of Alaska within one hundred Italian miles, Great -Britain and the United States protested in the interest of the freedom -of the Open Sea, and Russia dropped her claims in conventions concluded -with the protesting Powers in 1824 and 1825. And when, after Russia had -sold Alaska in 1867 to the United States, the latter made regulations -regarding the killing of seals within Behring Sea, claiming thereby -jurisdiction and control over a part of the Open Sea, a conflict arose -in 1886 with Great Britain, which was settled by arbitration[493] in -1893 in favour of the freedom of the Open Sea. - -[Footnote 493: See below, [p] 284.] - - -II - -CONCEPTION OF THE OPEN SEA - - Field, article 53--Westlake, I. p. 160--Moore, II. [p] 308--Rivier, - I. pp. 234-235--Pradier-Fodere, II. No. 868--Ullmann, [p] - 101--Stoerk in Holtzendorff, II. p. 483. - -[Sidenote: Discrimination between Open Sea and Territorial Waters.] - -[p] 252. Open Sea or High Seas[494] is the coherent body of salt water all -over the greater part of the globe, with the exception of the maritime -belt and the territorial straits, gulfs, and bays, which are parts of -the sea, but not parts of the Open Sea. Wherever there is a salt-water -sea on the globe, it is part of the Open Sea, provided it is not -isolated from, but coherent with, the general body of salt water -extending over the globe, and provided that the salt water approach to -it is navigable and open to vessels of all nations. The enclosure of a -sea by the land of one and the same State does not matter, provided such -a navigable connection of salt water as is open to vessels of all -nations exists between such sea and the general body of salt water, even -if that navigable connection itself be part of the territory of one or -more littoral States. Whereas, therefore, the Dead Sea is Turkish and -the Aral Sea is Russian territory, the Sea of Marmora is part of the -Open Sea, although it is surrounded by Turkish land and although the -Bosphorus and the Dardanelles are Turkish territorial straits, because -these are now open to merchantmen of all nations. For the same reason -the Black Sea[495] is now part of the Open Sea. On the other hand, the -Sea of Azoff is not part of the Open Sea, but Russian territory, -although there exists a navigable connection between it and the Black -Sea. The reason is that this connection, the Strait of Kertch, is not -according to the Law of Nations open to vessels of all nations, since -the Sea of Azoff is less a sea than a mere gulf of the Black Sea.[496] - -[Footnote 494: Field defines in article 53: "The High Seas are the -ocean, and all connecting arms and bays or other extensions thereof not -within the territorial limits of any nation whatever."] - -[Footnote 495: See above, [p] 181.] - -[Footnote 496: So say Rivier, I. p. 237, and Martens, I. [p] 97: but -Stoerk in Holtzendorff, II. p. 513, declares that the Sea of Azoff is -part of the Open Sea.] - -[Sidenote: Clear Instances of Parts of the Open Sea.] - -[p] 253. It is not necessary and not possible to particularise every -portion of the Open Sea. It is sufficient to state instances which -clearly indicate the extent of the Open Sea. To the Open Sea belong, of -course, all the so-called oceans--namely, the Atlantic, Pacific, Indian, -Arctic, and Antarctic. But the branches of the oceans, which go under -special names, and, further, the branches of these branches, which again -go under special names, belong likewise to the Open Sea. Examples of -these branches are: the North Sea, the English Channel, and the Irish -Sea; the Baltic Sea, the Gulf of Bothnia, the Gulf of Finland, the Kara -Sea,[497] and the White Sea; the Mediterranean and the Ligurian, -Tyrrhenian, Adriatic, Ionian, Marmora, and Black Seas; the Gulf of -Guinea; the Mozambique Channel; the Arabian Sea and the Red Sea; the Bay -of Bengal, the China Sea, the Gulf of Siam, and the Gulf of Tonking; the -Eastern Sea, the Yellow Sea, the Sea of Japan, and the Sea of Okhotsk; -the Behring Sea; the Gulf of Mexico and the Caribbean Sea; Baffin's Bay. - -[Footnote 497: The assertion of some Russian publicists that the Kara -Sea is Russian territory is refuted by Martens, I. [p] 97. As regards the -Kara Straits, see above, [p] 194.] - -It will be remembered that it is doubtful as regards many gulfs and bays -whether they belong to the Open Sea or are territorial.[498] - -[Footnote 498: See above, [p] 191.] - - -III - -THE FREEDOM OF THE OPEN SEA - - Hall, [p] 75--Westlake, I. pp. 160-166--Lawrence, [p] 100--Twiss, I. - [p][p] 172-173--Moore, II. [p][p] 309-310--Taylor, [p] 242--Wheaton, [p] - 187--Bluntschli, [p][p] 304-308--Heffter, [p] 94--Stoerk in - Holtzendorff, II. pp. 483-498--Ullmann, [p] 101--Bonfils, Nos. - 572-577--Pradier-Fodere, II. Nos. 874-881--Rivier, I. [p] 17--Nys, - II. pp. 140-166--Calvo, I. [p] 346--Fiore, II. Nos. 724, 727, and - Code, Nos. 928-930--Martens, I. [p] 97--Perels, [p] 4--Testa, pp. - 63-66--Ortolan, "Diplomatie de la mer" (1856), I. pp. 119-149--De - Burgh, "Elements of Maritime International Law" (1868), pp. - 1-24--Castel, "Du principe de la liberte des mers" (1900), pp. - 37-80. - -[Sidenote: Meaning of the Term "Freedom of the Open Sea."] - -[p] 254. The term "Freedom of the Open Sea" indicates the rule of the Law -of Nations that the Open Sea is not and never can be under the -sovereignty of any State whatever. Since, therefore, the Open Sea is not -the territory of any State, no State has as a rule a right to exercise -its legislation, administration, jurisdiction,[499] or police[500] over -parts of the Open Sea. Since, further, the Open Sea can never be under -the sovereignty of any State, no State has a right to acquire parts of -the Open Sea through occupation,[501] for, as far as the acquisition of -territory is concerned, the Open Sea is what Roman Law calls _res extra -commercium_.[502] But although the Open Sea is not the territory of any -State, it is nevertheless an object of the Law of Nations. The very fact -alone of such a rule exempting the Open Sea from the sovereignty of any -State whatever shows this. But there are other reasons. For if the Law -of Nations were to content itself with the rule which excludes the Open -Sea from possible State property, the consequence would be a condition -of lawlessness and anarchy on the Open Sea. To obviate such lawlessness, -customary International Law contains some rules which guarantee a -certain legal order on the Open Sea in spite of the fact that it is not -the territory of any State. - -[Footnote 499: As regards jurisdiction in cases of collision and salvage -on the Open Sea, see below, [p][p] 265 and 271.] - -[Footnote 500: See, however, above, [p] 190, concerning the zone for -Revenue and Sanitary Laws.] - -[Footnote 501: Following Grotius (II. c. 3, [p] 13) and Bynkershoek ("De -dominio maris," c. 3), some writers (for instance, Phillimore, I. [p] 203) -maintain that any part of the Open Sea covered for the time by a vessel -is by occupation to be considered as the temporary territory of the -vessel's flag State. And some French writers go even beyond that and -claim a certain zone round the respective vessel as temporary territory -of the flag State. But this is an absolutely superfluous fiction. (See -Stoerk in Holtzendorff, II. p. 494; Rivier, I. p. 238; Perels, pp. -37-39.)] - -[Footnote 502: But the subsoil of the bed of the Open Sea can well, -through driving mines and piercing tunnels from the coast, be acquired -by a littoral State. See above, [p] 221, and below, [p][p] 287_c_ and -287_d_.] - -[Sidenote: Legal Provisions for the Open Sea.] - -[p] 255. This legal order is created through the co-operation of the Law -of Nations and the Municipal Laws of such States as possess a maritime -flag. The following rules of the Law of Nations are universally -recognised, namely:--First, that every State which has a maritime flag -must lay down rules according to which vessels can claim to sail under -its flag, and must furnish such vessels with some official voucher -authorising them to make use of its flag; secondly, that every State has -a right to punish all such foreign vessels as sail under its flag -without being authorised to do so; thirdly, that all vessels with their -persons and goods are, whilst on the Open Sea, considered under the sway -of the flag State; fourthly, that every State has a right to punish -piracy on the Open Seas even if committed by foreigners, and that, with -a view to the extinction of piracy, men-of-war of all nations can -require all suspect vessels to show their flag. - -These customary rules of International Law are, so to say, supplemented -by Municipal Laws of the maritime States comprising provisions, first, -regarding the conditions to be fulfilled by vessels for the purpose of -being authorised to sail under their flags; secondly, regarding the -details of jurisdiction over persons and goods on board vessels sailing -under their flags; thirdly, concerning the order on board ship and the -relations between the master, the crew, and the passengers; fourthly, -concerning punishment of ships sailing without authorisation under their -flags. - -The fact that each maritime State has a right to legislate for its own -vessels gives it a share in keeping up a certain order on the Open Sea. -And such order has been turned into a more or less general order since -the large maritime States have concurrently made more or less concordant -laws for the conduct of their vessels on the Open Sea. - -[Sidenote: Freedom of the Open Sea and war.] - -[p] 256. Although the Open Sea is free and not the territory of any State, -it may nevertheless in its whole extent become the theatre of war, since -the region of war is not only the territories of the belligerents, but -likewise the Open Sea, provided that one of the belligerents at least is -a Power with a maritime flag.[503] Men-of-war of the belligerents may -fight a battle in any part of the Open Sea where they meet, and they may -capture all enemy merchantmen they meet on the Open Sea. And, further, -the jurisdiction and police of the belligerents become through the -outbreak of war in so far extended over vessels of other States, that -belligerent men-of-war may now visit, search, and capture neutral -merchantmen for breach of blockade, contraband, and the like. - -[Footnote 503: Concerning the distinction between theatre and region of -war, see below, vol. II. [p] 70.] - -However, certain parts of the Open Sea can become neutralised and -thereby be excluded from the region of war. Thus, the Black Sea became -neutralised in 1856 through article 11 of the Peace Treaty of Paris -stipulating:--"La Mer Noire est neutralisee: ouverte a la marine -marchande de toutes les nations, ses eaux et ses ports sont formellement -et a perpetuite interdites au pavillon de guerre, soit des puissances -riveraines, soit de tout autre puissance." Yet this neutralisation of -the Black Sea was abolished[504] in 1871 by article 1 of the Treaty of -London, and no other part of the Open Sea is at present neutralised. - -[Footnote 504: See above, [p] 181.] - -[Sidenote: Navigation and ceremonials on the Open Sea.] - -[p] 257. The freedom of the Open Sea involves perfect freedom of -navigation for vessels of all nations, whether men-of-war, other public -vessels, or merchantmen. It involves, further, absence of compulsory -maritime ceremonials on the Open Sea. According to the Law of Nations, -no rights whatever of salute exist between vessels meeting on the Open -Sea. All so-called maritime ceremonials on the Open Sea[505] are a -matter either of courtesy and usage or of special conventions and -Municipal Laws of those States under whose flags vessels sail. There is -in especial no right of any State to require a salute from foreign -merchantmen for its men-of-war.[506] - -[Footnote 505: But not within the maritime belt or other territorial -waters. See above, [p][p] 122 and 187.] - -[Footnote 506: That men-of-war can on the Open Sea ask suspicious -foreign merchantmen to show their flags has nothing to do with -ceremonials, but with the supervision of the Open Sea in the interest of -its safety. See below, [p] 266.] - -The freedom of the Open Sea involves likewise freedom of inoffensive -passage[507] through the maritime belt for merchantmen of all nations, -and also for men-of-war of all nations in so far as the part concerned -of the maritime belt forms a part of the highways for international -traffic. Without such freedom of passage, navigation on the Open Sea by -vessels of all nations would be a physical impossibility. - -[Footnote 507: See above, [p] 188.] - -[Sidenote: Claim of States to Maritime Flag.] - -[p] 258. Since no State can exercise protection over vessels that do not -sail under its flag, and since every vessel must, in the interest of the -order and safety of the Open Sea, sail under the flag of a State, the -question has been raised whether not only maritime States but also such -States as are not littoral States of the Sea have a claim to a maritime -flag. There ought to be no doubt[508] that the freedom of the Open Sea -involves a claim of any State to a maritime flag. At present no -non-littoral State actually has a maritime flag, and all vessels -belonging to subjects of such non-littoral States sail under the flag of -a maritime State. But any day might bring a change. The question as to -the claim to a maritime flag on the part of a non-littoral State was -discussed in Switzerland. When, in 1864, Swiss merchants in Trieste, -Smyrna, Hamburg, and St. Petersburg applied to the Swiss Bundesrath for -permission to have their vessels sailing under the Swiss flag, the -Bundesrath was ready to comply with the request, but the Swiss -Parliament, the Bundesversammlung, refused the necessary consent. In -1889 and 1891 new applications of the same kind were made, but -Switzerland again refused to have a maritime flag.[509] She had no doubt -that she had a claim to such flag, but was aware of the difficulties -arising from the fact that, having no seaports of her own, vessels -sailing under her flag would in many points have to depend upon the -goodwill of the maritime Powers.[510] - -[Footnote 508: See, however, Westlake, I. p. 165.] - -[Footnote 509: See Salis, "Schweizerisches Bundesrecht" (1891), vol. I. -p. 234.] - -[Footnote 510: The question is discussed by Calvo, I. [p] 427; Twiss, I. -[p][p] 197 and 198; and Westlake, I. p. 165.] - -Such States as have a maritime flag as a rule have a war flag different -from their commercial flag; some States, however, have one and the same -flag for both their navy and their mercantile marine. But it must be -mentioned that a State can by an international convention be restricted -to a mercantile flag only, such State being prevented from having a -navy. This is the position of Montenegro[511] according to article 29 of -the Treaty of Berlin of 1878. - -[Footnote 511: See above, [p] 127, but it is doubtful whether this -restriction is still in existence, since article 29 has, after the -annexation of Bosnia and Herzegovina by Austria in 1908, been modified -by the Powers, so that the port of Antivari and the other Montenegrin -waters are now no longer closed to men-of-war of all nations. See R.G. -XVII. (1910), pp. 173-176.] - -[Sidenote: Rationale for the Freedom of the Open Sea.] - -[p] 259. Grotius and many writers who follow[512] him establish two facts -as the reason for the freedom of the Open Sea. They maintain, first, -that a part of the Open Sea could not effectively be occupied by a Navy -and could therefore not be brought under the actual sway of any State. -And they assert, secondly, that Nature does not give a right to anybody -to appropriate such things as may inoffensively be used by everybody and -are inexhaustible, and, therefore, sufficient for all.[513] The last -argument has nowadays hardly any value, especially for those who have -freed themselves from the fanciful rules of the so-called Law of Nature. -And the first argument is now without basis in face of the development -of the modern navies, since the number of public vessels which the -different States possess at present would enable many a State to occupy -effectively one part or another of the Open Sea. The real reason for the -freedom of the Open Sea is represented in the motive which led to the -attack against maritime sovereignty, and in the purpose for which such -attack was made--namely, the freedom of communication, and especially -commerce, between the States which are severed by the Sea. The Sea being -an international highway which connects distant lands, it is the common -conviction that it should not be under the sway of any State whatever. -It is in the interest of free intercourse[514] between the States that -the principle of the freedom of the Open Sea has become universally -recognised and will always be upheld.[515] - -[Footnote 512: See, for instance, Twiss, I. [p] 172, and Westlake, I. p. -160.] - -[Footnote 513: See Grotius, II. c. 2, [p] 3.] - -[Footnote 514: See above, [p] 142.] - -[Footnote 515: Connected with the reason for the freedom of the Open Sea -is the merely theoretical question whether the vessels of a State could -through an international treaty be prevented from navigating on the -whole or on certain parts of the Open Sea. See Pradier-Fodere, II. Nos. -881-885, where this point is exhaustively discussed.] - - -IV - -JURISDICTION ON THE OPEN SEA - - Vattel, II. [p] 80--Hall, [p] 45--Westlake, I. pp. - 166-176--Lawrence, [p] 100--Halleck, p. 438--Taylor, [p][p] - 262-267--Walker, [p] 20--Wheaton, [p] 106--Moore, II. [p][p] - 309-310--Bluntschli, [p][p] 317-352--Heffter, [p][p] 78-80--Stoerk - in Holtzendorff, II. pp. 518-550--Liszt, [p] 26--Bonfils, Nos. - 578-580, 597-613--Despagnet, Nos. 422-430--Merignhac, II. pp. - 505-511--Pradier-Fodere, V. Nos. 2376-2470--Rivier, I. [p] - 18--Nys, II. pp. 139-165--Calvo, I. [p][p] 385-473--Fiore, II. - Nos. 730-742, and Code, Nos. 1001-1027--Martens, II. [p][p] - 55-56--Perels, [p] 12--Testa, pp. 98-112--Ortolan, "Diplomatie de - la mer" (1856), II. 254-326--Hall, "Foreign Powers and - Jurisdiction of the British Crown" (1894), [p][p] 106-109. - -[Sidenote: Jurisdiction on the Open Sea mainly connected with Flag.] - -[p] 260. Jurisdiction on the Open Sea is in the main connected with the -maritime flag under which vessels sail. This is the consequence of the -fact stated above[516] that a certain legal order is created on the Open -Sea through the co-operation of rules of the Law of Nations with rules -of the Municipal Laws of such States as possess a maritime flag. But two -points must be emphasised. The one is that this jurisdiction is not -jurisdiction over the Open Sea as such, but only over vessels, persons, -and goods on the Open Sea. And the other is that jurisdiction on the -Open Sea is, although mainly, not exclusively connected with the flag -under which vessels sail, because men-of-war of all nations have, as -will be seen,[517] certain powers over merchantmen of all nations. The -points which must therefore be here discussed singly are--the claim of -vessels to sail under a certain flag, ship-papers, the names of vessels, -the connection of vessels with the territory of the flag State, the -safety of traffic on the Open Sea, the powers of men-of-war over -merchantmen of all nations, and, lastly, shipwreck. - -[Footnote 516: See above, [p] 255.] - -[Footnote 517: See below, [p] 266.] - -[Sidenote: Claim of Vessels to sail under a certain Flag.] - -[p] 261. The Law of Nations does not include any rules regarding the claim -of vessels to sail under a certain maritime flag, but imposes the duty -upon every State having a maritime flag to stipulate by its own -Municipal Laws the conditions to be fulfilled by those vessels which -wish to sail under its flag. In the interest of order on the Open Sea, a -vessel not sailing under the maritime flag of a State enjoys no -protection whatever, for the freedom of navigation on the Open Sea is -freedom for such vessels only as sail under the flag of a State. But a -State is absolutely independent in framing the rules concerning the -claim of vessels to its flag. It can in especial authorise such vessels -to sail under its flag as are the property of foreign subjects; but such -foreign vessels sailing under its flag fall thereby under its -jurisdiction. The different States have made different rules concerning -the sailing of vessels under their flags.[518] Some, as Great -Britain[519] and Germany, allow only such vessels to sail under their -flags as are the exclusive property of their citizens or of corporations -established on their territory. Others, as Argentina, admit vessels -which are the property of foreigners. Others again, as France, admit -vessels which are in part the property of French citizens.[520] - -[Footnote 518: See Calvo, I. [p][p] 393-423, where the respective Municipal -Laws of most countries are quoted.] - -[Footnote 519: See section 1 of the Merchant Shipping Act, 1894 (27 and -28 Vict. c. 60), and sections 51 and 80 of the Merchant Shipping Act, -1906 (6 Ed. VII. c. 7).] - -[Footnote 520: The Institute of International Law adopted, at its -meeting at Venice--see Annuaire, XV. (1896), p. 201--in 1896, a body of -ten rules concerning the sailing of merchantmen under the maritime flag -of a State under the heading:--"_Regles relatives a l'usage du pavillon -national pour les navires de commerce_."] - -But no State can allow such vessel to sail under its flag as already -sails under the flag of another State. Just as a vessel not sailing -under the flag of a State, so a vessel sailing under the flags of two -different States does not enjoy any protection whatever. Nor is -protection enjoyed by such vessel as sails under the flag of a State -which, like Switzerland, has no maritime flag. Vessels belonging to -persons who are subjects of States without a maritime flag must obtain -authority to sail under some other State's flag, if they wish to enjoy -protection on the Open Sea. And any vessel, although the property of -foreigners, which sails without authority under the flag of a State, may -be captured by the men-of-war of such State, prosecuted, punished, and -confiscated.[521] - -[Footnote 521: See the case of the steamship _Maori King_ _v._ His -Britannic Majesty's Consul-General at Shanghai, L.R., App. c. 1909, p. -562, and sections 69 and 76 of the Merchant Shipping Act, 1894 (27 and -28 Vict. c. 60).] - -[Sidenote: Ship Papers.] - -[p] 262. All States with a maritime flag are by the Law of Nations obliged -to make private vessels sailing under their flags carry on board -so-called ship papers, which serve the purpose of identification on the -Open Sea. But neither the number nor the kind of such papers is -prescribed by International Law, and the Municipal Laws of the different -States differ much on this subject.[522] But, on the other hand, they -agree as to the following papers:-- - -[Footnote 522: See Holland, "Manual of Naval Prize Law," [p][p] 178-194, -where the papers required by the different maritime States are -enumerated.] - -(1) An official voucher authorising the vessel to sail under its flag. -This voucher consists of a Certificate of Registry, in case the flag -State possesses, like Great Britain and Germany for instance, a register -of its mercantile marine; in other cases the voucher consists of a -"Passport," "Sea-letter," "Sea-brief," or of some other document serving -the purpose of showing the vessel's nationality. - -(2) The Muster Roll. This is a list of all the members of the crew, -their nationality, and the like. - -(3) The Log Book. This is a full record of the voyage, with all nautical -details. - -(4) The Manifest of Cargo. This is a list of the cargo of a vessel, with -details concerning the number and the mark of each package, the names of -the shippers and the consignees, and the like. - -(5) The Bills of Lading. These are duplicates of the documents which -the master of the vessel hands over to the shipper of the goods at -shipment. - -(6) The Charter Party, if the vessel is chartered. This is the contract -between the owner of the ship, who lets it wholly or in part, and the -charterer, the person who hires it. - -[Sidenote: Names of Vessels.] - -[p] 263. Every State must register the names of all private vessels -sailing under its flag, and it must make them bear their names visibly, -so that every vessel may be identified from a distance. No vessel must -be allowed to change her name without permission and fresh -registration.[523] - -[Footnote 523: As regards Great Britain, see sections 47 and 48 of the -Merchant Shipping Act, 1894, and sections 50 and 53 of the Merchant -Shipping Act, 1906.] - -[Sidenote: Territorial Quality of Vessels on the Open Sea.] - -[p] 264. It is a customary rule of the Law of Nations that men-of-war and -other public vessels of any State are, whilst on the Open Sea as well as -in foreign territorial waters, in every point considered as though they -were floating parts of their home States.[524] Private vessels are only -considered as though they were floating portions of the flag State in so -far as they remain whilst on the Open Sea in principle under the -exclusive jurisdiction of the flag State. Thus the birth of a child, a -will or business contract made, a crime[525] committed on board ship, -and the like, are considered as happening on the territory and therefore -under the territorial supremacy of the flag[526] State. But although -they appear in this respect as though they were, private vessels are in -fact not floating portions of the flag State. For in time of war -belligerent men-of-war can visit, search, and capture neutral private -vessels on the Open Sea for breach of blockade, contraband, and the -like, and in time of peace men-of-war of all nations have certain -powers[527] over merchantmen of all nations. - -[Footnote 524: See above, [p] 172, and below, [p][p] 447-451.] - -[Footnote 525: See Jordan in R.I. 2nd Ser. X. (1908), pp. 340-362 and -481-500.] - -[Footnote 526: Since, however, individuals abroad remain under the -personal supremacy of their home State, nothing can prevent a State from -legislating as regards such of its citizens as sail on the Open Sea on -board a foreign vessel.] - -[Footnote 527: See below, [p] 266. The question of the territoriality of -vessels is ably discussed by Hall, [p][p] 76-79.] - -[Sidenote: Safety of Traffic on the Open Sea.] - -[p] 265. No rules of the Law of Nations exist as yet[528] for the purpose -of preventing collisions, saving lives after collisions, and the like, -but every State possessing a maritime flag has legislated for the -conduct on the Open Sea of vessels sailing under its flag concerning -signalling, piloting, courses, collisions, and the like. Although every -State can legislate on these matters independently of other States, more -and more corresponding rules have been put into force by all the States -during the second half of the nineteenth century, following the lead -given by Great Britain through section 25 of the Merchant Shipping Act -Amendment Act of 1862, the "Regulations for preventing Collisions at -Sea" which accompany this Act, and, further, Sections 16 to 20 of the -Merchant Shipping Act, 1873.[529] And the "Commercial Code of Signals -for the Use of all Nations," published by Great Britain in 1857, has -been adopted by all maritime States. In 1889 a maritime Conference took -place at Washington, at which eighteen maritime States were represented -and which recommended a body of rules for preventing collisions at sea -to be adopted by the single States,[530] and a revision of the Code of -Signals. These regulations were revised in 1890 by a British Committee -appointed by the Board of Trade,[531] and, after some direct -negotiations between the Governments, most maritime States have made -corresponding regulations by their Municipal Laws.[532] And a new and -revised edition of "The International Code of Signals" was published by -the British Board of Trade, in conformity with arrangements with other -maritime Powers, in 1900, and is now in general use.[533] - -[Footnote 528: It is to be expected that matters will soon undergo a -change, for the Conference of the International Maritime Committee, -which met at Brussels in September 1910 and where all the maritime -States of Europe, the United States of America, most of the South -American States, and Japan were represented, produced a draft convention -concerning collisions (see Supplement to the _American Journal of -International Law_, IV. (1910), p. 121). The "Maritime Conventions -Bill," which is now before Parliament, proposes such alterations of -British Municipal Law as would enable the British Government to ratify -this Convention. The Institute of International Law already in 1888, at -its meeting at Lausanne--see Annuaire, X. (1889), p. 150--adopted a body -of eight rules concerning the subject.] - -[Footnote 529: See 25 and 26 Vict. c. 63; 36 and 37 Vict. c. 83. The -matter is now dealt with by sections 418-421 of the Merchant Shipping -Act, 1894 (57 and 58 Vict. c. 60).] - -[Footnote 530: See Martens, N.R.G. 2nd Ser. XII. p. 416.] - -[Footnote 531: See Martens, N.R.G. 2nd Ser. XXII. p. 113.] - -[Footnote 532: Latest British Regulations, 1896.] - -[Footnote 533: The matter of collision at sea is exhaustively treated by -Prien, "Der Zusammenstoss von Schiffen nach dem Gesetzen des Erdhalls" -(2nd ed. 1899).] - -The question of jurisdiction in actions for damages for collision at sea -is not at all settled.[534] That the damaged innocent vessel can bring -an action against the guilty ship in the Courts of the latter's flag -State is beyond doubt since jurisdiction on the Open Sea follows the -flag. If the rule that all vessels while on the Open Sea are considered -under the sway of their flag State were one without exception, no other -State would claim jurisdiction in cases of collision but the flag State -of the guilty ship. Yet the practice of the maritime States[535] goes -far beyond this, without, however, being uniform. Thus, for instance, -France[536] claims jurisdiction if the damaged ship is French, although -the guilty ship may be foreign, and also in the event of both ships -being foreign in case both consent, or for urgent measures having a -provisionary character, or in case France is a place of payment. Thus, -further, Italy[537] claims jurisdiction even if both ships are foreign -in case an Italian port is the port nearest to the collision, or in case -the damaged ship was forced by the collision to remain in an Italian -port. Great Britain goes farthest, for the Admiralty Court claims -jurisdiction provided the guilty ship is in a British port at the time -the action for damages is brought, even if the collision took place -between two foreign ships anywhere on the High Seas.[538] And the -Admiralty Court justifies this extended claim of jurisdiction[539] by -maintaining that collision is a matter of _communis juris_, and can -therefore be adjudicated upon by the Courts[540] of all maritime -States.[541] - -[Footnote 534: See Phillimore, IV. [p] 815; Calvo, I. [p] 444; -Pradier-Fodere, V. Nos. 2362-2374; Bar, "Private International Law" (2nd -ed. translated by Gillespie), pp. 720 and 928; Dicey, "Conflict of Laws" -(2nd ed.), pp. 650-652 and 790; Foote, "Private International Law" (3rd -ed.), pp. 486 and 495; Westlake, "Private International Law" (3rd ed.), -pp. 266-269; Marsden, "The Law of Collisions at Sea" (6th ed. 1910); -Williams and Bruce, "Treatise on the Jurisdiction of English Courts in -Admiralty Actions" (3rd ed. 1902).] - -[Footnote 535: See above, [p] 146.] - -[Footnote 536: See Pradier-Fodere, No. 2363.] - -[Footnote 537: See Pradier-Fodere, No. 2364.] - -[Footnote 538: Or even in foreign territorial waters. See Williams and -Bruce, _op. cit._, p. 78:--"The Admiralty Court from ancient times -exercised jurisdiction in cases of collision between foreign vessels on -the High Seas; and since the Admiralty Court Act, 1861, it has -entertained suits for collision between ships in foreign waters, and -between an English and a foreign ship in foreign waters."] - -[Footnote 539: _The Johann Friederich_ (1838), 1 W. Robinson, 35; the -Chartered Mercantile Bank of India, London, and China _v._ The -Netherlands India Steam Navigation Co., 10 Q.B.D. 537.] - -[Footnote 540: The practice of the United States of America coincides -with that of Great Britain; see the case of the _Belgenland_, 114, -United States, 355, and Wharton, I. [p] 27.] - -[Footnote 541: The Institute of International Law, at its meeting at -Lausanne in 1888, adopted two rules concerning the jurisdiction in cases -of collision; see Annuaire, X. (1889), p. 152.] - -[Sidenote: Powers of Men-of-war over Merchantmen of all Nations.] - -[p] 266. Although the freedom of the Open Sea and the fact that vessels on -the Open Sea remain under the jurisdiction of the flag State exclude as -a rule the exercise of any State's authority over foreign vessels, there -are certain exceptions in the interest of all maritime nations. These -exceptions are the following:-- - -(1) Blockade and Contraband. In time of war belligerents can blockade -not only enemy ports and territorial coast waters, but also parts of the -Open Sea adjoining those ports and waters, and neutral merchantmen -attempting to break such a blockade can be confiscated. And, further, in -time of war belligerent men-of-war can visit, search, and eventually -seize neutral merchantmen for contraband, and the like. - -(2) Verification of Flag. It is a universally recognised customary rule -of International Law that men-of-war of all nations have, to maintain -the safety of the Open Sea against piracy, the power to require -suspicious private vessels on the Open Sea to show their flag.[542] But -such vessels must be suspicious, and, since a vessel may be a pirate -although she shows a flag, she may eventually be stopped and visited for -the purpose of inspecting her papers and thereby verifying the flag. It -is, however, quite obvious that this power of men-of-war must not be -abused, and that the home State is responsible for damages in case a -man-of-war stops and visits a foreign merchantman without sufficient -ground of suspicion. The right of every State to punish piracy on the -Open Sea will be treated below, [p][p] 272-280. - -[Footnote 542: So-called "Droit d'enquete" or "Verification du -pavillon." This power of men-of-war has given occasion to much dispute -and discussion, but in fact nobody denies that in case of grave -suspicion this power does exist. See Twiss, I. [p] 193; Hall, [p] 81, p. -276; Fiore, II. Nos. 732-736; Perels, [p] 17; Taylor, [p] 266; Bonfils, No. -519.] - -(3) So-called Right of Pursuit. It is a universally recognised customary -rule that men-of-war of a littoral State can pursue into the Open Sea, -seize, and bring back into a port for trial any foreign merchantman that -has violated the law whilst in the territorial waters of the State in -question. But such pursuit into the Open Sea is permissible only if -commenced while the merchantman is still in the said territorial waters -or has only just escaped thence, and the pursuit must stop as soon as -the merchantman passes into the maritime belt of a foreign State.[543] - -[Footnote 543: See Hall, [p] 80.] - -(4) Abuse of Flag. It is another universally recognised rule that -men-of-war of every State may seize and bring to a port of their own for -punishment any foreign vessel sailing under the flag of such State -without authority.[544] Accordingly, Great Britain has, by section 69 -of the Merchant Shipping Act, 1894, enacted:--"If a person uses the -British flag and assumes the British national character on board a ship -owned in whole or in part by any persons not qualified to own a British -ship, for the purpose of making the ship appear a British ship, the ship -shall be subject to forfeiture under this Act, unless the assumption has -been made for the purpose of escaping capture by an enemy or by a -foreign ship of war in the exercise of some belligerent right." - -[Footnote 544: The four exceptions mentioned in the text above are based -on universally recognised customary rules of the Law of Nations. It is, -of course, possible for several States to enter into treaty agreements -according to which their men-of-war acquire certain powers over each -other's merchantmen on the Open Sea. According to such agreements, which -are, however, not universal, the following additional exceptions may be -enumerated:-- - -(1) In the interest of the suppression of the slave trade, the signatory -Powers of the General Act of the Brussels Conference of 1890 to which -all the larger maritime Powers belong, have, by articles 20-65, -stipulated that their men-of-war shall have the power, in certain parts -of the Open Sea where slave traffic still continues, to stop every -suspect vessel under 500 tons. - -(2) In the interest of the Fisheries in the North Sea, special cruisers -of the littoral Powers control all fishing vessels and bumboats. See -below, [p][p] 282 and 283. - -(3) In the interest of Transatlantic telegraph cables, men-of-war of the -signatory Powers of the treaty for the protection of such cables have -certain powers over merchantmen. (See below, [p] 287.)] - -[Sidenote: How Verification of Flag is effected.] - -[p] 267. A man-of-war which meets a suspicious merchantman not showing her -colours and wishes to verify the same, hoists her own flag and fires a -blank cartridge. This is a signal for the other vessel to hoist her flag -in reply. If she takes no notice of the signal, the man-of-war fires a -shot across her bows. If the suspicious vessel, in spite of this -warning, still declines to hoist her flag, the suspicion becomes so -grave that the man-of-war may compel her to bring to for the purpose of -visiting her and thereby verifying her nationality. - -[Sidenote: How Visit is effected.] - -[p] 268. The intention to visit may be communicated to a merchantman -either by hailing or by the "informing gun"--that is, by firing either -one or two blank cartridges. If the vessel takes no notice of this -communication, a shot may be fired across her bows as a signal to bring -to, and, if this also has no effect, force may be resorted to. After the -vessel has been brought to, either an officer is sent on board for the -purpose of inspecting her papers, or her master is ordered to bring his -ship papers for inspection on board the man-of-war. If the inspection -proves the papers to be in order, a memorandum of the visit is made in -the log-book, and the vessel is allowed to proceed on her course. - -[Sidenote: How Search is effected.] - -[p] 269. Search is naturally a measure which visit must always precede. It -is because the visit has given no satisfaction that search is -instituted. Search is effected by an officer and some of the crew of the -man-of-war, the master and crew of the vessel to be searched not being -compelled to render any assistance whatever except to open locked -cupboards and the like. The search must take place in an orderly way, -and no damage must be done to the cargo. If the search proves everything -to be in order, the searchers have carefully to replace everything -removed, a memorandum of the search is to be made in the log-book, and -the searched vessel is to be allowed to proceed on her course. - -[Sidenote: How Arrest is effected.] - -[p] 270. Arrest of a vessel takes place either after visit and search have -shown her liable thereto, or after she has committed some act which -alone already justifies her seizure. Arrest is effected through the -commander of the arresting man-of-war appointing one of her officers and -a part of her crew to take charge of the arrested vessel. Such officer -is responsible for the vessel and her cargo, which latter must be kept -safe and intact. The arrested vessel, either accompanied by the -arresting vessel or not, must be brought to such harbour as is -determined by the cause of the arrest. Thus, neutral or enemy ships -seized in time of war are always[545] to be brought into a harbour of -the flag State of the captor. And the same is the case in time of peace, -when a vessel is seized because her flag cannot be verified, or because -she was sailing under no flag at all. On the other hand, when a fishing -vessel or a bumboat is arrested in the North Sea, she is always to be -brought into a harbour of her flag State and handed over to the -authorities there.[546] - -[Footnote 545: Except in the case of distress or unseaworthiness; see -below, vol. II. [p] 193.] - -[Footnote 546: See below, [p][p] 282 and 283.] - -[Sidenote: Shipwreck and Distress on the Open Sea.] - -[p] 271. It is at present the universal conviction on the part of the -States that goods and persons shipwrecked on the Open Sea do not thereby -lose the protection of the flag State of the shipwrecked vessel. No -State is allowed to recognise appropriation of abandoned vessels and -other derelicts on the Open Sea by those of its subjects who take -possession thereof. But every State can by its Municipal Laws enact that -those of its subjects who take possession of abandoned vessels and of -shipwrecked goods need not restore them to their owners without -salvage,[547] whether the act of taking possession occurred on the -actual Open Sea or within territorial waters and on shore of the -respective State. - -[Footnote 547: The Conference of the Maritime Committee held at Brussels -in September 1910 also produced a draft convention concerning salvage, -which the British Government likewise intends to ratify provided -Parliament passes the "Maritime Conventions Bill," see above, [p] 265, p. -333, note 2, and Supplement to the _American Journal of International -Law_, IV. (1910), p. 126. According to the practice of the Admiralty -Court--see the case of the _Johann Friederich_, 1 W. Robinson, -35--salvage on the Open Sea is, just like collisions, a matter of -_communis juris_ upon which the Courts of all maritime States are -competent to adjudicate. See Phillimore, IV. [p] 815; and Dicey, "Conflict -of Laws" (2nd ed. 1908), p. 791. See also sect. 545 and 565 of the -Merchant Shipping Act, 1894.] - -As regards vessels in distress on the Open Sea, some writers[548] -maintain that men-of-war must render assistance even to foreign vessels -in distress. But it is impossible to say that there is a customary or -conventional rule of the Law of Nations in existence which imposes upon -all States the duty of instructing their men-of-war to render assistance -to foreign vessels in distress, although many States order by Municipal -Regulations their men-of-war to render such assistance, and although -morally every vessel is bound to render assistance to another vessel in -distress.[549] - -[Footnote 548: See, for instance, Perels, [p] 25, and Fiore, II. No. 732.] - -[Footnote 549: According to article 11 of the draft convention -concerning salvage produced by the Conference of the Maritime Committee -at Brussels in September 1910--see above, note 1--"every master shall be -obliged, as far as he can do so without serious danger to his vessel, -his crew, or his passengers, to lend assistance to any person, even an -enemy, found at sea in danger of perishing. The owner of the vessel -shall not be liable for violations of the foregoing provision."] - - -V - -PIRACY - - Hall, [p][p] 81-82--Westlake, I. pp. 177-182--Lawrence, [p] - 102--Phillimore, I. [p][p] 356-361--Twiss, I. [p][p] 177 and - 193--Halleck, I. pp. 444-450--Taylor, [p][p] 188-189--Walker, [p] - 21--Westlake, I. pp. 177-182--Wheaton, [p][p] 122-124--Moore, II. - [p][p] 311-315--Bluntschli, [p][p] 343-350--Heffter, [p] - 104--Gareis in Holtzendorff, II. pp. 571-581--Gareis, [p] - 58--Liszt, [p] 26--Ullmann, [p] 104--Bonfils, Nos. - 592-594--Despagnet, Nos. 431-433--Merignhac, II. pp. - 506-511--Pradier-Fodere, V. Nos. 2491-2515--Rivier, I. pp. - 248-251--Calvo, I. [p][p] 485-512--Fiore, I. Nos. 494-495, and - Code, Nos. 295-300--Perels, [p][p] 16-17--Testa, pp. - 90-97--Ortolan, "Diplomatie de la mer" (1856), I. pp. - 231-253--Stiel, "Der Thatbestand der Piraterie" (1905). - -[Sidenote: Conception of Piracy.] - -[p] 272. Piracy, in its original and strict meaning, is every unauthorised -act of violence committed by a private vessel on the Open Sea against -another vessel with intent to plunder (_animo furandi_). The majority of -writers confine piracy to such acts, which indeed are the normal cases -of piracy. But there are cases possible which are not covered by this -narrow definition, and yet they are practically treated as though they -were cases of piracy. Thus, if the members of the crew revolt and -convert the ship and the goods thereon to their own use, they are -considered to be pirates, although they have not committed an act of -violence against another ship. Thus, secondly, if unauthorised acts of -violence, such as murder of persons on board the attacked vessel or -destruction of goods thereon, are committed on the Open Sea without -intent to plunder, such acts are practically considered to be piratical. -Under these circumstances several writers,[550] correctly, I think, -oppose the usual definition of piracy as an act of violence committed by -a private vessel against another with intent to plunder. But no -unanimity exists among these very writers concerning a fit definition of -piracy, and the matter is therefore very controversial. If a definition -is desired which really covers all such acts as are practically treated -as piratical, piracy must be defined as _every unauthorised act of -violence against persons or goods committed on the Open Sea either by a -private vessel against another vessel or by the mutinous crew or -passengers against their own vessel_.[551] - -[Footnote 550: Hall, [p] 81; Lawrence, [p] 102; Bluntschli, [p] 343; -Liszt, [p] 26; Calvo, [p] 485.] - -[Footnote 551: The conception of Piracy is discussed in the case of the -Republic of Bolivia _v._ The Indemnity Mutual Marine Assurance Co., L.R. -(1909), 1 K.B., 785.] - -Already, before a Law of Nations in the modern sense of the term was in -existence, a pirate was considered an outlaw, a "hostis humani generis." -According to the Law of Nations the act of piracy makes the pirate lose -the protection of his home State, and thereby his national character; -and his vessel, although she may formerly have possessed a claim to sail -under a certain State's flag, loses such claim. Piracy is a so-called -"international crime";[552] the pirate is considered the enemy of every -State, and can be brought to justice anywhere. - -[Footnote 552: See above, [p] 151.] - -[Sidenote: Private Ships as Subjects of Piracy.] - -[p] 273. Private vessels only[553] can commit piracy. A man-of-war or -other public ship, as long as she remains such, is never a pirate. If -she commits unjustified acts of violence, redress must be asked from her -flag State, which has to punish the commander and to pay damages where -required. But if a man-of-war or other public ship of a State revolts -and cruises the sea for her own purposes, she ceases to be a public -ship, and acts of violence now committed by her are indeed piratical -acts. A _privateer_ is not a pirate as long as her acts of violence are -confined to enemy vessels, because such acts are authorised by the -belligerent in whose services she is acting. And it matters not that the -privateer is originally a neutral vessel.[554] But if a neutral vessel -were to take Letters of Marque from both belligerents, she would be -considered a pirate. - -[Footnote 553: Piracy committed by the mutinous crew will be treated -below, [p] 274.] - -[Footnote 554: See details regarding this controversial point in Hall, [p] -81. See also below, vol. II. [p][p] 83 and 330.] - -Doubtful is the case where a privateer in a civil war has received her -Letters of Marque from the insurgents, and, further, the case where -during a civil war men-of-war join the insurgents before the latter have -been recognised as a belligerent Power. It is evident that the -legitimate Government will treat such ships as pirates; but third Powers -ought not to do so, as long as these vessels do not commit any act of -violence against ships of these third Powers. Thus, in 1873, when an -insurrection broke out in Spain, Spanish men-of-war stationed at -Carthagena fell into the hands of the insurgents, and the Spanish -Government proclaimed these vessels pirates, England, France, and -Germany instructed the commanders of their men-of-war in the -Mediterranean not to interfere as long as these insurgent vessels[555] -abstained from acts of violence against the lives and property of their -subjects.[556] On the other hand, when in 1877 a revolutionary outbreak -occurred at Callao in Peru and the ironclad _Huascar_, which had been -seized by the insurgents, put to sea, stopped British steamers, took a -supply of coal without payment from one of these, and forcibly took two -Peruvian officials from on board another where they were passengers, she -was justly considered a pirate and attacked by the British Admiral de -Horsey, who was in command of the British squadron in the Pacific.[557] - -[Footnote 555: See Calvo, I. [p][p] 497-501; Hall, [p] 82; Westlake, I. pp. -179-182.] - -[Footnote 556: But in the American case of the _Ambrose Light_ (25 -Federal 408; see also Moore, II. [p] 332, p. 1098) the Court did not agree -with this. The _Ambrose Light_ was a brigantine which, when on April 24, -1885, she was sighted by Commander Clark of the U.S.S. _Alliance_ in the -Caribbean Sea, was flying a strange flag showing a red cross on a white -ground, but she afterwards hoisted the Columbian flag; when seized she -was found to carry sixty armed soldiers, one cannon, and a considerable -quantity of ammunition. She bore a commission from Columbian insurgents, -and was designed to assist in the blockade of the port of Carthagena by -the rebels. Commander Clark considered the vessel to be a pirate and -sent her in for condemnation. The Court held that in absence of any -recognition of the Columbian insurgents as a belligerent Power the -_Ambrose Light_ had been lawfully seized as a pirate. The vessel was, -however, nevertheless released because the American Secretary of State -had recognised by implication a state of war between the insurgents and -the legitimate Columbian Government.] - -[Footnote 557: As regards the case of the Argentinian vessel _Portenya_ -and the Spanish vessel _Montezuma_, afterwards called _Cespedes_, see -Calvo, I. [p][p] 502 and 503.] - -The case must also be mentioned of a privateer or man-of-war which after -the conclusion of peace or the termination of war by subjugation and the -like continues to commit hostile acts. If such vessel is not cognisant -of the fact that the war has come to an end she cannot be considered as -a pirate. Thus the Confederate cruiser _Shenandoah_, which in 1865, for -some months after the end of the American Civil War, attacked American -vessels, was not considered a pirate[558] by the British Government when -her commander gave her up to the port authorities at Liverpool in -November 1865, because he asserted that he had not known till August of -the termination of the war, and that he had abstained from hostilities -as soon as he had obtained this information. - -[Footnote 558: See Lawrence, [p] 102.] - -It must be emphasised that the motive and the purpose of such acts of -violence do not alter their piratical character, since the intent to -plunder (_animus furandi_) is not required. Thus, for instance, if a -private neutral vessel without Letters of Marque during war out of -hatred of one of the belligerents were to attack and to sink vessels of -such belligerent without plundering at all, she would nevertheless be -considered as a pirate.[559] - -[Footnote 559: This statement is correct in spite of art. 46, No. 1, of -the Declaration of London; see below, vol. II. [p] 410, No. 1.] - -[Sidenote: Mutinous Crew and Passengers as Subjects of Piracy.] - -[p] 274. The crew or the whole or a part of the passengers who revolt on -the Open Sea and convert the vessel and her goods to their own use, -commit thereby piracy, whether the vessel is private or public. But a -simple act of violence alone on the part of crew or passengers does not -constitute in itself the crime of piracy, at least not as far as -International Law is concerned. If, for instance, the crew were to -murder the master on account of his cruelty and afterwards carry on the -voyage, they would be murderers, but not pirates. They are pirates only -when the revolt is directed not merely against the master, but also -against the vessel, for the purpose of converting her and her goods to -their own use. - -[Sidenote: Object of Piracy.] - -[p] 275. The object of piracy is any public or private vessel, or the -persons or the goods thereon, whilst on the Open Sea. In the regular -case of piracy the pirate wants to make booty; it is the cargo of the -attacked vessel which is the centre of his interest, and he might free -the vessel and the crew after having appropriated the cargo. But he -remains a pirate whether he does so or kills the crew and appropriates -the ship, or sinks her. On the other hand, it does not matter if the -cargo is not the object of his act of violence. If he stops a vessel and -takes a rich passenger off with the intention to keep him for the -purpose of a high ransom, his act is piracy. It is likewise piracy if he -stops a vessel for the purpose of killing a certain person only on -board, although he may afterwards free vessel, crew, and cargo. - -That a possible object of piracy is not only another vessel, but also -the very ship on which the crew and passenger navigate, is an inference -from the statements above in [p] 274. - -[Sidenote: Piracy, how effected.] - -[p] 276. Piracy is effected by any unauthorised act of violence, be it -direct application of force or intimidation through menace. The crew or -passengers who, for the purpose of converting a vessel and her goods to -their own use, force the master through intimidation to steer another -course, commit piracy as well as those who murder the master and steer -the vessel themselves. And a ship which, through the threat to sink her -if she should refuse, forces another ship to deliver up her cargo or a -person on board, commits piracy as well as the ship which attacks -another vessel, kills her crew, and thereby gets hold of her cargo or a -person on board. - -The act of violence need not be consummated to constitute the crime of -piracy. The mere attempt, such as attacking or even chasing only for the -purpose of attack, by itself comprises piracy. On the other hand, it is -doubtful whether persons cruising in armed vessels with the intention of -committing piracies are liable to be treated as pirates before they have -committed a single act of violence.[560] - -[Footnote 560: See Stephen, "Digest of the Criminal Law," article 104. -In the case of the _Ambrose Light_--see above, [p] 273--the Court -considered the vessel to be a pirate, although no attempt to commit a -piratical act had been made by her.] - -[Sidenote: Where Piracy can be committed.] - -[p] 277. Piracy as an "international crime" can be committed on the Open -Sea only. Piracy in territorial coast waters has quite as little to do -with International Law as other robberies on the territory of a State. -Some writers[561] maintain that piracy need not necessarily be committed -on the Open Sea, but that it suffices that the respective acts of -violence are committed by descent from the Open Sea. They maintain, -therefore, that if "a body of pirates land on an island unappropriated -by a civilised Power, and rob and murder a trader who may be carrying on -commerce there with the savage inhabitants, they are guilty of a crime -possessing all the marks of commonplace professional piracy." With this -opinion I cannot agree. Piracy is, and always has been, a crime against -the safety of traffic on the Open Sea, and therefore it cannot be -committed anywhere else than on the Open Sea. - -[Footnote 561: Hall, [p] 81; Lawrence, [p] 102; Westlake, I. p. 177.] - -[Sidenote: Jurisdiction over Pirates, and their Punishment.] - -[p] 278. A pirate and his vessel lose _ipso facto_ by an act of piracy the -protection of their flag State and their national character. Every -maritime State has by a customary rule of the Law of Nations the right -to punish pirates. And the vessels of all nations, whether men-of-war, -other public vessels, or merchantmen,[562] can on the Open Sea[563] -chase, attack, seize, and bring the pirate home for trial and punishment -by the Courts of their own country. In former times it was said to be a -customary rule of International Law that pirates could at once after -seizure be hanged or drowned by the captor. But this cannot now be -upheld, although some writers assert that it is still the law. It would -seem that the captor may execute pirates on the spot only when he is not -able to bring them safely into a port for trial; but Municipal Law may, -of course, interdict such execution. Concerning the punishment for -piracy, the Law of Nations lays down the rule that it may be capital. -But it need not be, the Municipal Law of the different States being -competent to order any less severe punishment. Nor does the Law of -Nations make it a duty for every maritime State to punish all -pirates.[564] - -[Footnote 562: A few writers (Gareis in Holtzendorff, II. p 575; Liszt, -[p] 26; Ullmann, [p] 104; Stiel, _op. cit._, p. 51) maintain, however, that -men-of-war only have the power to seize the pirate.] - -[Footnote 563: If a pirate is chased on the Open Sea and flees into the -territorial maritime belt, the pursuers may follow, attack, and arrest -the pirate there; but they must give him up to the authorities of the -littoral State.] - -[Footnote 564: Thus, according to the German Criminal Code, piracy -committed by foreigners against foreign vessels cannot be punished by -German Courts (see Perels, [p] 17). From article 104 of Stephen's "Digest -of the Criminal Law," there seems to be no doubt that, according to -English Law, all pirates are liable to be punished. See Stiel, _op. -cit._, p. 15, note 4, where a survey is given of the Municipal Law of -many States concerning this point.] - -That men-of-war of all nations have, with a view to insuring the safety -of traffic, the power of verifying the flags of suspicious merchantmen -of all nations, has already been stated above ([p] 266, No. 2). - -[Sidenote: _Pirata non mutat dominium._] - -[p] 279. The question as to the property in the seized piratical vessels -and the goods thereon has been the subject of much controversy. During -the seventeenth century the practice of several States conceded such -vessel and goods to the captor as a premium. But during the eighteenth -century the rule _pirata non mutat dominium_ became more and more -recognised. Nowadays the conviction would seem to be general that ship -and goods have to be restored to their proprietors, and may be conceded -to the captor only when the real ownership cannot be ascertained. In the -first case, however, a certain percentage of the value is very often -conceded to the captor as a premium and an equivalent for his expenses -(so-called _droit de recousse_[565]). Thus, according to British -Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of -the pirate. - -[Footnote 565: See details regarding the question as to the piratical -vessels and goods in Pradier-Fodere, V. Nos. 2496-2499.] - -[Footnote 566: See section 5 of the "Act to repeal an Act of the Sixth -Year of King George the Fourth, for encouraging the Capture or -Destruction of Piratical Ships, &c." (13 & 14 Vict. ch. 26).] - -[Sidenote: Piracy according to Municipal Law.] - -[p] 280. Piracy, according to the Law of Nations, which has been defined -above ([p] 272) as every unauthorised act of violence against persons or -goods committed on the Open Sea either by a private vessel against -another vessel or by the mutinous crew or passengers against their own -vessel, must not be confounded with the conception of piracy according -to the different Municipal Laws.[567] The several States may confine -themselves to punishing as piracy a narrower circle of acts of violence -than that which the Law of Nations defines as piracy. On the other hand, -they may punish their subjects as pirates for a much wider circle of -acts. Thus, for instance, according to the Criminal Law of England,[568] -every English subject is _inter alia_ deemed to be a pirate who gives -aid or comfort upon the sea to the King's enemies during a war, or who -transports slaves on the High Seas. - -[Footnote 567: See Calvo, [p][p] 488-492; Lawrence, [p] 103; -Pradier-Fodere, V. Nos. 2501 and 2502.] - -[Footnote 568: See Stephen, "Digest of the Criminal Law," articles -104-117.] - -However, since a State cannot on the Open Sea enforce its Municipal Laws -against others than its own subjects, no State can treat such foreign -subjects on the Open Sea as pirates as are not pirates according to the -Law of Nations. Thus, when in 1858, before the abolition of slavery in -America, British men-of-war molested American vessels suspected of -carrying slaves, the United States objected and rightly complained.[569] - -[Footnote 569: See Wharton, III. [p] 327, pp. 142 and 143; Taylor, [p] 190; -Moore, II. [p] 310, pp. 941-946.] - - -VI - -FISHERIES IN THE OPEN SEA - - Grotius, II. c. 3, [p] 4--Vattel, I. [p] 287--Hall, [p] - 27--Lawrence, [p][p] 86 and 91--Phillimore, I. [p][p] - 181-195--Twiss, I. [p] 185--Taylor, [p][p] 249-250--Wharton, II. - [p][p] 300-308--Wheaton, [p][p] 167-171--Moore, I. [p][p] - 169-173--Bluntschli, [p] 307--Stoerk in Holtzendorff, II. pp. - 504-507--Gareis, [p] 62--Liszt, [p] 35--Ullmann, [p] 103--Bonfils, - Nos. 581-582, 595--Despagnet, Nos. 411-413--Merignhac, II. p. - 531--Pradier-Fodere, V. Nos. 2446-2458--Rivier, I. pp. - 243-245--Nys, II. pp. 165-169--Calvo, I. [p][p] 357-364--Fiore, - II. Nos. 728-729, and Code, Nos. 995-999--Martens, I. [p] - 98--Perels, [p] 20--Hall, "Foreign Powers and Jurisdiction" - (1894), [p] 107--David, "La peche maritime au point de vue - international" (1897)--Fulton, "The Sovereignty of the Seas" - (1911), pp. 57-534. - -[Sidenote: Fisheries in the Open Sea free to all Nations.] - -[p] 281. Whereas the fisheries in the territorial maritime belt can be -reserved by the littoral State for its own subjects, it is an inference -of the freedom of the Open Sea that the fisheries thereon are open[570] -to vessels of all nations. Since, however, vessels remain whilst on the -Open Sea under the jurisdiction of their flag State, every State -possessing a maritime flag can legislate concerning the exercise of -fisheries on the Open Sea on the part of vessels sailing under its flag. -And for the same reason a State can by an international agreement -renounce its fisheries on certain parts of the Open Sea, and accordingly -interdict its vessels from exercising fisheries there. If certain -circumstances and conditions make it advisable to restrict and regulate -the fisheries on some parts of the Open Sea, the Powers are therefore -able to create restrictions and regulations for that purpose through -international treaties. Such treaties have been concluded--first, with -regard to the fisheries in the North Sea and the suppression of the -liquor trade among the fishing vessels in that Sea; secondly, with -regard to the seal fisheries in the Behring Sea; thirdly, with regard to -the fisheries around the Faroee Islands and Iceland. - -[Footnote 570: Denmark silently, by fishing regulations of 1872, dropped -her claim to an exclusive right of fisheries within twenty miles of the -coast of Iceland; see Hall, [p] 40, p. 153, note 2. Russia promulgated, in -1911, a statute forbidding the fisheries to foreign vessels within -twelve miles of the shore of the White Sea, but the Powers protested -against this encroachment upon the freedom of the Open Sea; the matter -is still unsettled. - -A case of a particular kind would seem to be the pearl fishery off -Ceylon, which extends to a distance of twenty miles from the shore and -for which regulations exist which are enforced against foreign as well -as British subjects. The claim on which these regulations are based is -one "to the products of certain submerged portions of land which have -been treated from time immemorial by the successive rulers of the island -as subject of property and jurisdiction." See Hall, "Foreign Powers and -Jurisdiction" (1894), p. 243, note 1. See also Westlake, I. p. 186, who -says: "The case of the pearl fishery is peculiar, the pearls being -obtained from the sea bottom by divers, so that it has a physical -connection with the stable element of the locality which is wanting to -the pursuit of fish swimming in the water. When carried on under State -protection, as that off the British island of Ceylon, or that in the -Persian Gulf which is protected by British ships in pursuance of -treaties with certain chiefs of the Arabian mainland, it may be regarded -as an occupation of the bed of the sea. In that character the pearl -fishery will be territorial even though the shallowness of the water may -allow it to be practised beyond the limit which the State in question -generally fixes for the littoral seas, as in the case of Ceylon it is -practised beyond the three miles limit generally recognised by Great -Britain. 'Qui doutera,' says Vattel (I. [p] 28), 'que les pecheries de -Bahrein et de Ceylon ne puissent legitimement tomber en propriete?' And -the territorial nature of the industry will carry with it, as being -necessary for its protection, the territorial character of the spot." -This opinion of Westlake coincides with that contended by Great Britain -during the Behring Sea Arbitration; see Parliamentary Papers, United -States, No. 4 (1893) Behring Sea Arbitration, Archives of His Majesty's -Government, pp. 51 and 59. But it is submitted that the bed of the Open -Sea is not a possible object of occupation. The explanation of the pearl -fisheries off Ceylon and in the Persian Gulf being exclusively British -is to be found in the fact that the freedom of the Open Sea was not a -rule of International Law when these fisheries were taken possession of. -See Oppenheim in Z.V. II. (1908), pp. 6-10, and Westlake, I. (2nd ed.), -p. 203.] - -[Sidenote: Fisheries in the North Sea.] - -[p] 282. For the purpose of regulating the fisheries in the North Sea, an -International Conference took place at the Hague in 1881 and again in -1882, at which Great Britain, Belgium, Denmark, France, Germany, -Holland, and Sweden-Norway were represented, and on May 6, 1882, the -International Convention for the Regulation of the Police of the -Fisheries in the North Sea outside the territorial waters[571] was -signed by the representatives of all these States, Sweden-Norway -excepted, to which the option of joining later on is given. This treaty -contains the following stipulations:[572]-- - -[Footnote 571: Martens, N.R.G. 2nd Ser. IX. p. 556.] - -[Footnote 572: The matter is exhaustively treated by Rykere, "Le regime -legal de la peche maritime dans la Mer du Nord" (1901). To carry out the -obligations undertaken by her in the Convention for the regulation of -the fisheries in the North Sea, Great Britain enacted in 1883 the "Act -to carry into effect an International Convention concerning the -Fisheries in the North Sea, and to amend the Laws relating to British -Sea Fisheries" (46 and 47 Vict. ch. 22).] - -(1) All the fishing vessels of the signatory Powers must be registered, -and the registers have to be exchanged between the Powers (article 5). -Every vessel has to bear visibly in white colour on black ground its -number, name, and the name of its harbour (articles 6-11). Every vessel -must bear an official voucher of her nationality (articles 12-13). - -(2) To avoid conflicts between the different fishing vessels, very -minute interdictions and injunctions are provided (articles 14-25). - -(3) The supervision of the fisheries by the fishing vessels of the -signatory Powers is exercised by special cruisers of these Powers -(article 26). With the exception of those contraventions which are -specially enumerated by article 27, all these cruisers are competent to -verify all contraventions committed by the fishing vessels of all the -signatory Powers (article 28). For that purpose they have the right of -visit, search, and arrest (article 29). But a seized fishing vessel is -to be brought into a harbour of her flag State and to be handed over to -the authorities there (article 30). All contraventions are to be tried -by the Courts of the State to which the contravening vessels belong -(article 36); but in cases of a trifling character the matter can be -compromised on the spot by the commanders of the special public cruisers -of the Powers (article 33). - -[Sidenote: Bumboats in the North Sea.] - -[p] 283. Connected with the regulation of the fisheries is the abolition -of the liquor trade among the fishing vessels in the North Sea. Since -serious quarrels and difficulties were caused through bumboats and -floating grog-shops selling intoxicating liquors to the fishermen, an -International Conference took place at the Hague in 1886, where the -signatory Powers of the Hague Convention concerning the fisheries in the -North Sea were represented. And on November 16, 1887, the International -Convention concerning the Abolition of the Liquor Traffic among the -fishermen in the North Sea was signed by the representatives of these -Powers--namely, Great Britain, Belgium, Denmark, France, Germany, and -Holland. This treaty[573] was, however, not ratified until 1894, and -France did not ratify it at all. It contains the following -stipulations:[574]-- - -[Footnote 573: See Martens, N.R.G. 2nd Ser. XIV. p. 540, and XXII. p. -563.] - -[Footnote 574: The matter is treated by Guillaume in R.I. XXVI. (1894), -p. 488.] - -It is interdicted to sell spirituous drinks to persons on board of -fishing vessels, and these persons are prohibited from buying such -drinks (article 2). Bumboats, which wish to sell provisions to -fishermen, must be licensed by their flag State and must fly a white -flag[575] with the letter S in black in the middle (article 3). The -special cruisers of the Powers which supervise the fisheries in the -North Sea are likewise competent to supervise the treaty stipulations -concerning bumboats; they have the right to ask for the production of -the proper licence, and eventually the right to arrest the vessel -(article 7). But arrested vessels must always be brought into a harbour -of their flag State, and all contraventions are to be tried by Courts of -the flag State of the contravening vessel (articles 2, 7, 8). - -[Footnote 575: This flag was agreed upon in the Protocol concerning the -ratification of the Convention. (See Martens, N.R.G. 2nd Ser. XXII. p. -565.)] - -[Sidenote: Seal Fisheries in Behring Sea.] - -[p] 284. In 1886 a conflict arose between Great Britain and the United -States through the seizure and confiscation of British-Columbian vessels -which had hunted seals in the Behring Sea outside the American -territorial belt, infringing regulations made by the United States -concerning seal fishing in that sea. Great Britain and the United States -concluded an arbitration treaty[576] concerning this conflict in 1892, -according to which the arbitrators should not only settle the dispute -itself, but also (article 7) "determine what concurrent regulations -outside the jurisdictional limits of the respective Governments are -necessary" in the interest of the preservation of the seals. The -Arbitration Tribunal, which assembled and gave its award[577] at Paris -in 1893, imposed the duty upon both parties of forbidding their subjects -to kill seals within a zone of sixty miles around the Pribilof Islands; -the killing of seals at all between May 1 and July 31 each year; -seal-fishing with nets, firearms, and explosives; seal-fishing in other -than specially licensed sailing vessels. Both parties in 1894 carried -out this task imposed upon them.[578] Other maritime Powers were at the -same time asked by the United States to submit voluntarily to the -regulations made for the parties by the arbitrators, but only Italy[579] -has agreed to this. - -[Footnote 576: See Martens, N.R.G. 2nd Ser. XVIII. p. 587.] - -[Footnote 577: See Martens, N.R.G. 2nd Ser. XXI. p. 439. The award is -discussed by Barclay in R.I. XXV. (1893), p. 417, and Engelhardt in R.I. -XXVI. (1894), p. 386, and R.G. V. (1898), pp. 193 and 347. See also -Tillier, "Les Pecheries de Phoques de la Mer de Behring" (1906), and -Balch, "L'evolution de l'Arbitrage International" (1908), pp. 70-91.] - -[Footnote 578: See the Behring Sea Award Act, 1894 (57 Vict. c. 2).] - -[Footnote 579: See Martens, N.R.G. 2nd Ser. XXII. p. 624.] - -Experience has shown that the provisions made by the Arbitration -Tribunal for the purpose of preventing the extinction of the seals in -the Behring Sea are insufficient. The United States therefore invited -the maritime Powers whose subjects are engaged in the seal fisheries to -a Pelagic Sealing Conference which took place at Washington in 1911, and -produced a convention[580] which was signed on July 7, 1911, by which -the suspension of pelagic sealing for fifteen years was agreed upon. - - [No further details of this Convention are as yet known, and it - has not yet been ratified.] - -[Footnote 580: See below, [p] 593, No. 2.] - -[Sidenote: Fisheries around the Faroee Islands and Iceland.] - -[p] 285. For the purpose of regulating the fisheries outside territorial -waters around the Faroee Islands and Iceland, Great Britain and Denmark -signed on June 24, 1901, the Convention of London,[581] whose -stipulations are for the most part literally the same as those of the -International Convention for the Regulation of the Fisheries in the -North Sea, concluded at the Hague in 1882.[582] The additional article -of this Convention of London stipulates that any other State whose -subjects fish around the Faroee Islands and Iceland may accede to it. - -[Footnote 581: See Martens, N.R.G. 2nd Ser. XXXIII. (1906), p. 268.] - -[Footnote 582: See above, [p] 282.] - - -VII - -TELEGRAPH CABLES IN THE OPEN SEA - - Bonfils, No. 583--Despagnet, No. 401--Pradier-Fodere, V. No. - 2548--Merignhac, II. p. 532--Nys, II. p. 170--Rivier, I. pp. 244 - and 386--Fiore, II. No. 822, and Code, Nos. 1134-1137--Stoerk in - Holtzendorff, II. pp. 507-508--Liszt, [p] 29--Ullmann, [p] - 103--Lauterbach, "Die Beschaedigung unterseeischer - Telegraphenkabel" (1889)--Landois, "Zur Lehre vom - voelkerrechtlichen Schutz der submarinen Telegraphenkabel" - (1894)--Jouhannaud, "Les cables sous-marins" (1904)--Renault, in - R.I. XII. (1880), p. 251, XV. (1883), p. 17. See also the - literature quoted below, vol. II., at the commencement of [p] 214. - -[Sidenote: Telegraph cables in the Open Sea admitted.] - -[p] 286. It is a consequence of the freedom of the Open Sea that no State -can prevent another from laying telegraph and telephone cables in any -part of the Open Sea, whereas no State need allow this within its -territorial maritime belt. As numerous submarine cables have been laid, -the question as to their protection arose. Already in 1869 the United -States proposed an international convention for this purpose, but the -matter dropped in consequence of the outbreak of the Franco-German war. -The Institute of International Law took up the matter in 1879[583] and -recommended an international agreement. In 1882 France invited the -Powers to an International Conference at Paris for the purpose of -regulating the protection of submarine cables. This conference met in -October 1882, again in October 1883, and produced the "International -Convention for the Protection of Submarine Telegraph Cables" which was -signed at Paris on April 16, 1884.[584] - -[Footnote 583: See Annuaire, III. pp. 351-394.] - -[Footnote 584: See Martens, N.R.G. 2nd Ser. XI. p. 281.] - -The signatory Powers are:--Great Britain, Argentina, Austria-Hungary, -Belgium, Brazil, Colombia, Costa Rica, Denmark, San Domingo, France, -Germany, Greece, Guatemala, Holland, Italy, Persia, Portugal, Roumania, -Russia, Salvador, Servia, Spain, Sweden-Norway, Turkey, the United -States, and Uruguay. Colombia and Persia did not ratify the treaty, but, -on the other hand, Japan acceded to it later on. - -[Sidenote: International Protection of Submarine Telegraph Cables.] - -[p] 287. The protection afforded to submarine telegraph cables finds its -expression in the following stipulations of this international treaty:-- - -(1) Intentional or culpably negligent breaking or damaging of a cable in -the Open Sea is to be punished by all the signatory Powers,[585] except -in the case of such damage having been caused in the effort of -self-preservation (article 2). - -[Footnote 585: See the Submarine Telegraph Act, 1885 (48 & 49 Vict. c. -49).] - -(2) Ships within sight of buoys indicating cables which are being laid -or which are damaged must keep at least a quarter of a nautical mile -distant (article 6). - -(3) For dealing with infractions of the interdictions and injunctions of -the treaty the Courts of the flag State of the infringing vessel are -exclusively competent (article 8). - -(4) Men-of-war of all signatory Powers have a right to stop and to -verify the nationality of merchantmen of all nations which are suspected -of having infringed the regulations of the treaty (article 10). - -(5) All stipulations are made for the time of peace only and in no wise -restrict the action of belligerents during time of war.[586] - -[Footnote 586: See below, vol. II. [p] 214, and art. 54 of the Hague rules -concerning land warfare which enacts:--"Submarine cables connecting a -territory occupied with a neutral territory shall not be seized or -destroyed except in the case of absolute necessity. They also must be -restored and indemnities for them regulated at the peace."] - - -VIII - -WIRELESS TELEGRAPHY ON THE OPEN SEA - - Bonfils, Nos. 531{10, 11}--Despagnet, 433 _quater_--Liszt, [p] - 29--Ullmann, [p] 147--Meili, "Die drahtlose Telegraphie, &c." - (1908)--Schneeli, "Drahtlose Telegraphie und Voelkerrecht" - (1908)--Landsberg, "Die drahtlose Telegraphie" (1909)--Kausen, - "Die drahtlose Telegraphie im Voelkerrecht" (1910)--Rolland in R.G. - XIII. (1906), pp. 58-92--Fauchille in Annuaire, XXI. (1906), pp. - 76-87--Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261. - -[Sidenote: Radio-telegraphy between ships and the shore.] - -[p] 287_a_. To secure radio-telegraphic[587] communication between ships -of all nations at sea and the continents, a Conference met at Berlin in -1906, where Great Britain, Germany, the United States of America, -Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Chili, Denmark, -Spain, France, Greece, Italy, Japan, Mexico, Monaco, Norway, Holland, -Persia, Portugal, Roumania, Russia, Sweden, Turkey, and Uruguay were -represented, and where was signed on November 3, 1906, the International -Radio-telegraphic Convention.[588] This Convention, which consists of -twenty-three articles, is accompanied by a Final Protocol, comprising -six important articles, and by Service Regulations, embodying fifty-two -articles. The more important stipulations of the Convention are the -following:--Coast Stations and ships are bound to exchange -radio-telegrams reciprocally without regard to the particular system of -radio-telegraphy adopted by them (article 3). Each of the contracting -parties undertakes to cause its coast stations to be connected with the -telegraph system by means of special wires, or at least to take such -other measures as will ensure an expeditious exchange of traffic between -the coast stations and the telegraph system (article 5). Radio-telegraph -stations are bound to accept with absolute priority calls of distress -from ships, to answer such calls with similar priority, and to take the -necessary steps with regard to them (article 9). An International Bureau -shall be established with the duty of collecting, arranging, and -publishing information of every kind concerning radio-telegraphy, and -for some other purposes mentioned in article 13. - -[Footnote 587: See above, [p] 173, and below, [p][p] 464 and 582, No. 4.] - -[Footnote 588: See Martens, N.R.G. 3rd Ser. III. (1910), p. 147. But not -all the signatory Powers have as yet ratified the Convention, -ratification having been given hitherto only by Great Britain, -Austria-Hungary, Belgium, Brazil, Bulgaria, Denmark, France, Germany, -Japan, Mexico, Monaco, Holland, Norway, Portugal, Roumania, Russia, -Spain, Sweden and Turkey; and Tunis acceded to it. Italy has reserved -ratification on account of her relations with the Marconi Wireless -Telegraphy Co.] - -[Sidenote: Radio-telegraphy between ships at sea.] - -[p] 287_b_. To secure radio-telegraphic communication between such ships -at sea as possess installations for wireless telegraphy, an Additional -Convention[589] to that mentioned above in [p] 287_a_ was signed on -November 3, 1906, by all the Powers who signed the forementioned -Convention except by Great Britain, Italy, Japan, Mexico, Persia, and -Portugal. According to this additional Convention all ships at sea which -possess radio-telegraphic installations are compelled to exchange -radio-telegrams reciprocally at all times without regard to the -particular system of radio-telegraphy adopted. - -[Footnote 589: See Martens, N.R.G. 3rd Ser. III. (1910), p. 158. But -this Convention likewise has not yet been ratified by all the signatory -Powers.] - -It is to be hoped that in time all the Powers will accede to this -Additional Convention, for its stipulation is of great importance in -cases of shipwreck. If ships at sea can refuse to exchange -radio-telegrams, it is impossible for them to render one another -assistance. It ought not to be possible for the following case[590] to -occur, to which attention was drawn at the Berlin Conference by the -delegate of the United States of America:--The American steamer -_Lebanon_ had received orders to search the Atlantic for a wrecked -vessel which offered great danger to navigation. The _Lebanon_ came -within communicating reach of the liner _Vaderland_, and inquired by -wireless telegraphy whether the _Vaderland_ had seen the wreck. The -_Vaderland_ refused to reply to this question, on the ground that she -was not permitted to enter into communication with a ship provided with -a wireless apparatus other than the Marconi. - -[Footnote 590: See Hazeltine, "The Law of the Air" (1911), p. 101.] - - -IX - -THE SUBSOIL BENEATH THE SEA BED - -[Sidenote: Five rules concerning the subsoil beneath the Sea Bed.] - -[p] 287_c_. The subsoil beneath the bed of the Open Sea requires special -consideration on account of coal or other mines, tunnels, and the like, -for the question is whether such buildings can be driven into that -subsoil at all, and, if this can be done, whether they can be under the -territorial supremacy of a particular State. The answer depends entirely -upon the character in law of such subsoil. If the rules concerning the -territorial subsoil[591] would have analogously to be applied to the -subsoil beneath the bed of the Open Sea, all rules concerning the Open -Sea would necessarily have to be applied to the subsoil beneath its bed, -and no part of this subsoil could ever come under the territorial -supremacy of any State. It is, however, submitted[592] that it would not -be rational to consider the subsoil beneath the bed of the Open Sea an -inseparable appurtenance of the latter, such as the subsoil beneath the -territorial land and water is. The rationale of the Open Sea being free -and for ever excluded from occupation on the part of any State is that -it is an international highway which connects distant lands and thereby -secures freedom of communication, and especially of commerce, between -such States as are separated by the sea.[593] There is no reason -whatever for extending this freedom of the Open Sea to the subsoil -beneath its bed. On the contrary, there are practical reasons--taking -into consideration the building of mines, tunnels, and the like--which -compel the recognition of the fact that this subsoil can be acquired -through occupation. The following five rules recommend themselves -concerning this subject:-- - -[Footnote 591: See above, [p][p] 173, 175.] - -[Footnote 592: See Oppenheim in Z.V. II. (1908), p. 11.] - -[Footnote 593: See above, [p] 259.] - -(1) The subsoil beneath the bed of the Open Sea is no man's land, and it -can be acquired on the part of a littoral State through occupation, -starting from the subsoil beneath the bed of the territorial maritime -belt. - -(2) This occupation takes place _ipso facto_ by a tunnel or a mine being -driven from the shore through the subsoil of the maritime belt into the -subsoil of the Open Sea. - -(3) This occupation of the subsoil of the Open Sea can be extended up to -the boundary line of the subsoil of the territorial maritime belt of -another State, for no State has an exclusive claim to occupy such part -of the subsoil of the Open Sea as is adjacent to the subsoil of its -territorial maritime belt. - -(4) An occupation of the subsoil beneath the bed of the Open Sea for a -purpose which would endanger the freedom of the Open Sea is -inadmissible. - -(5) It is likewise inadmissible to make such arrangements in a part of -the subsoil beneath the Open Sea which has previously been occupied for -a legitimate purpose as would indirectly endanger the freedom of the -Open Sea. - -If these five rules are correct, there is nothing in the way of coal and -other mines which are being exploited on the shore of a littoral State -being extended into the subsoil beneath the Open Sea up to the boundary -line of the subsoil beneath the territorial maritime belt of another -State. Further, a tunnel which might be built between such two parts of -the same State--for instance, between Ireland and Scotland--as are -separated by the Open Sea would fall entirely under the territorial -supremacy of the State concerned. On the other hand, for a tunnel -between two different States separated by the Open Sea special -arrangements by treaty would have to be made concerning the territorial -supremacy over that part of the tunnel which runs under the bed of the -Open Sea. - -[Sidenote: The proposed Channel Tunnel.] - -[p] 287_d_. Since there is as yet no submarine tunnel in existence, it is -of interest to give some details concerning the project of a Channel -Tunnel[594] between Dover and Calais, and the preliminary arrangements -between France and England concerning it. Already some years before the -Franco-German War the possibility of such a tunnel was discussed, but it -was not until 1874 that the first preliminary steps were taken. The -subsoil of the Channel was geologically explored, plans were worked out, -and a shaft of more than a mile long was tentatively bored from the -English shore. And in 1876 an International Commission, appointed by the -English and French Governments, and comprising three French and three -English members, made a report on the construction and working of the -proposed tunnel.[595] The report enclosed a memorandum, recommended by -the Commissioners to be adopted as the basis of a treaty between Great -Britain and France concerning the tunnel, the juridically important -articles of which are the following:-- - -[Footnote 594: See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G. -XV. (1908), pp. 50-77; and Liszt, [p] 26.] - -[Footnote 595: See Parliamentary Papers, C. 1576, Report of the -Commissioners for the Channel Tunnel and Railway, 1876.] - -(Article 1) The boundary between England and France in the tunnel shall -be half-way between low-water mark (above the tunnel) on the coast of -England, and low-water mark (above the tunnel) on the coast of France. -The said boundary shall be ascertained and marked out under the -direction of the International Commission to be appointed, as mentioned -in article 4, before the Submarine Railway is opened for public traffic. -The definition of boundary provided for by this article shall have -reference to the tunnel and Submarine Railway only, and shall not in any -way affect any question of the nationality of, or any rights of -navigation, fishing, anchoring, or other rights in, the sea above the -tunnel, or elsewhere than in the tunnel itself. - -(Article 4) There shall be constituted an International Commission to -consist of six members, three of whom shall be nominated by the British -Government and three by the French Government.... - - * * * * * - -The International Commission shall ... submit to the two Governments its -proposals for Supplementary Conventions with respect--(_a_) to the -apprehension and trial of alleged criminals for offences committed in -the tunnel or in trains which have passed through it, and the summoning -of witnesses; (_b_) to customs, police, and postal arrangements, and -other matters which it may be found convenient so to deal with. - -(Article 15) Each Government shall have the right to suspend the working -of the Submarine Railway and the passage through the tunnel whenever -such Government shall, in the interest of its own country, think -necessary to do so. And each Government shall have power, to be -exercised if and when such Government may deem it necessary, to damage -or destroy[596] the works of the tunnel or Submarine Railway, or any -part of them, in the territory of such Government, and also to flood the -tunnel with water. - -[Footnote 596: This stipulation was proposed in the interest of defence -in time of war. As regards the position of a Channel Tunnel in time of -war, see Oppenheim in Z.V. II. (1908), pp. 13-16.] - -In spite of this elaborate preparation the project could not be -realised, since public opinion in England was for political reasons -opposed to it. And although several times since--in 1880, 1884, 1888, -and 1908--steps were again taken in favour of the proposed tunnel, -public opinion in England remained hostile and the project has had for -the time to be abandoned. It is, however, to be hoped and expected that -ultimately the tunnel will be built when the political conditions which -are now standing in the way of its realisation have undergone a change. - - - - -CHAPTER III - -INDIVIDUALS - - -I - -POSITION OF INDIVIDUALS IN INTERNATIONAL LAW - - Lawrence, [p] 42--Taylor, [p] 171--Heffter, [p] 58--Stoerk in - Holtzendorff, II. pp. 585-592--Gareis, [p] 53--Liszt, [p][p] 5 and - 11--Ullmann, [p] 107--Bonfils, Nos. 397-409--Despagnet, No. - 328--Merignhac, II. pp. 169-172--Pradier-Fodere, I. Nos. - 43-49--Fiore, II. Nos. 568-712--Martens, I. [p][p] 85-86--Jellinek, - "System der subjectiven oeffentlichen Rechte" (1892), pp. - 310-314--Heilborn, "System," pp. 58-138--Kaufmann, "Die - Rechtskraft des Internationalen Rechtes" (1899)--Buonvino, - "Diritto e personalita giuridica internazionale" (1910)--Rehm and - Adler in Z.V. II. (1908), pp. 53-55 and 614-618--Kohler in Z.V. - III. (1909), pp. 209-230--Diena in R.G. XVI. (1909), pp. 57-76. - -[Sidenote: Importance of Individuals to the Law of Nations.] - -[p] 288. The importance of individuals to the Law of Nations is just as -great as that of territory, for individuals are the personal basis of -every State. Just as a State cannot exist without a territory, so it -cannot exist without a multitude of individuals who are its subjects and -who, as a body, form the people or the nation. The individuals belonging -to a State can and do come in various ways in contact with foreign -States in time of peace as well as of war. The Law of Nations is -therefore compelled to provide certain rules regarding individuals. - -[Sidenote: Individuals never Subjects of the Law of Nations.] - -[p] 289. Now, what is the position of individuals in International Law -according to these rules? Since the Law of Nations is a law between -States only and exclusively, States only and exclusively[597] are -subjects of the Law of Nations. How is it, then, that, although -individuals are not subjects of the Law of Nations, they have certain -rights and duties in conformity with or according to International Law? -Have not monarchs and other heads of States, diplomatic envoys, and even -simple citizens certain rights according to the Law of Nations whilst on -foreign territory? If we look more closely into these rights, it becomes -quite obvious that they are not given to the favoured individual by the -Law of Nations directly. For how could International Law, which is a law -between States, give rights to individuals concerning their relations to -a State? What the Law of Nations really does concerning individuals, is -to impose the duty upon all the members of the Family of Nations to -grant certain privileges to such foreign heads of States and diplomatic -envoys, and certain rights to such foreign citizens as are on their -territory. And, corresponding to this duty, every State has by the Law -of Nations a right to demand that its head, its diplomatic envoys, and -its simple citizens be granted certain rights by foreign States when on -their territory. Foreign States granting these rights to foreign -individuals do this by their Municipal Laws, and these rights are, -therefore, not international rights, but rights derived from Municipal -Laws. International Law is indeed the background of these rights in so -far as the duty to grant them is imposed upon the single States by -International Law. It is therefore quite correct to say that the -individuals have these rights in conformity with or according to -International Law, if it is only remembered that these rights would not -exist had the single States not created them by their Municipal Law. - -[Footnote 597: See above, [p][p] 13 and 63.] - -And the same is valid as regards special rights of individuals in -foreign countries according to special international treaties between -two or more Powers. Although such treaties mostly speak of rights which -individuals shall have as derived from the treaties themselves, this is -nothing more than an inaccuracy of language. In fact, such treaties do -not create these rights, but they impose the duty upon the contracting -States of calling these rights into existence by their Municipal -Laws.[598] - -[Footnote 598: The whole matter is treated with great lucidity by -Jellinek, "System der subjectiven oeffentlichen Rechte" (1892), pp. -310-314, and Heilborn, "System," pp. 58-138.] - -Again, in those rare cases in which States stipulate by international -treaties certain favours for individuals other than their own subjects, -these individuals do not acquire any international rights under these -treaties. The latter impose the duty only upon the State whose subjects -these individuals are of calling those favours into existence by its -Municipal Law. Thus, for example, when articles 5, 25, 35, and 44 of the -Treaty of Berlin, 1878, made it a condition of the recognition of -Bulgaria, Montenegro, Servia, and Roumania, that these States should not -impose any religious disability upon their subjects, the latter did not -thereby acquire any international rights. Another instructive -example[599] is furnished by article 5 of the Peace Treaty of Prague, -1866, between Prussia and Austria, which stipulated that the northern -district of Schleswig should be ceded by Prussia to Denmark in case the -inhabitants should by a plebiscite vote in favour of such cession. -Austria, no doubt, intended to secure by this stipulation for the -inhabitants of North Schleswig the opportunity of voting in favour of -their union with Denmark. But these inhabitants did not thereby acquire -any international right. Austria herself acquired only a right to insist -upon Prussia granting to the inhabitants the opportunity of voting for -the union with Denmark. Prussia, however, intentionally neglected her -duty, Austria did not insist upon her right, and finally relinquished it -by the Treaty of Vienna of 1878.[600] - -[Footnote 599: See Heilborn, "System," p. 67.] - -[Footnote 600: It ought to be mentioned that the opinion presented in -the text concerning the impossibility for individuals to be subjects of -International Law, which is now mostly upheld, is vigorously opposed by -Kaufmann, "Die Rechtskraft des internationalen Rechtes" (1899), [p][p] 1-4, -and a few others.] - -Now it is maintained[601] that, although individuals cannot be subjects -of International Law, they can nevertheless acquire rights and duties -from International Law. But it is impossible to find a basis for the -existence of such rights and duties. International rights and duties -they cannot be, for international rights and duties can only exist -between States. Likewise they cannot be municipal rights, for municipal -rights and duties can only be created by Municipal Law. The opponents -answer that such rights and duties nevertheless exist, and quote for -example articles 4 and 5 of Convention XII. (concerning the -establishment of an International Prize Court) of the second Hague Peace -Conference, according to which individuals have a right to bring an -appeal before the International Prize Court. But is this a real right? -Is it not more correct to say that the home States of the individuals -concerned have a right to demand that these individuals can bring the -appeal before the Court? Wherever International Law creates an -independent organisation, such as the International Prize Court at the -Hague or the European Danube Commission and the like, certain powers and -claims must be given to the Courts and Commissions and the individuals -concerned, but these powers and claims, and the obligations deriving -therefrom, are neither international nor municipal rights and duties: -they are powers, claims, and obligations existing only within the -organisations concerned. To call them rights and duties--as indeed the -respective treaties frequently do--is a laxity of language which is -quite tolerable as long as one remembers that they neither comprise any -relations between States nor any claims and obligations within the -province of Municipal Law. - -[Footnote 601: See Diena in R.G. XVI. (1909), pp. 57-76; Rehm and Adler -in Z.V. I. (1908), pp. 53 and 614; Liszt, [p] 5; Kohler in Z.V. II. -(1909), pp. 209-230.] - -[Sidenote: Individuals Objects of the Law of Nations.] - -[p] 290. But what is the real position of individuals in International -Law, if they are not subjects thereof? The answer can only be that they -are _objects_ of the Law of Nations. They appear as such from many -different points of view. When, for instance, the Law of Nations -recognises the personal supremacy of every State over its subjects at -home and abroad, these individuals appear just as much objects of the -Law of Nations as the territory of the States does in consequence of the -recognised territorial supremacy of the States. When, secondly, the -recognised territorial supremacy of every State comprises certain powers -over foreign subjects within its boundaries without their home State's -having a right to interfere, these individuals appear again as objects -of the Law of Nations. And, thirdly, when according to the Law of -Nations any State may seize and punish foreign pirates on the Open Sea, -or when belligerents may seize and punish neutral blockade-runners and -carriers of contraband on the Open Sea without their home State's having -a right to interfere, individuals appear here too as objects of the Law -of Nations.[602] - -[Footnote 602: Westlake, Chapters, p. 2, maintains that in these cases -individuals appear as _subjects_ of International Law; but I cannot -understand upon what argument this assertion is based. The correct -standpoint is taken up by Lorimer, II. p. 131, and Holland, -"Jurisprudence," p. 341.] - -[Sidenote: Nationality the Link between Individuals and the Law of -Nations.] - -[p] 291. If, as stated, individuals are never subjects but always objects -of the Law of Nations, then nationality is the link between this law and -individuals. It is through the medium of their nationality only that -individuals can enjoy benefits from the existence of the Law of Nations. -This is a fact which has its consequences over the whole area of -International Law.[603] Such individuals as do not possess any -nationality enjoy no protection whatever, and if they are aggrieved by a -State they have no way of redress, there being no State which would be -competent to take their case in hand. As far as the Law of Nations is -concerned, apart from morality, there is no restriction whatever to -cause a State to abstain from maltreating to any extent such stateless -individuals.[604] On the other hand, if individuals who possess -nationality are wronged abroad, it is their home State only and -exclusively which has a right to ask for redress, and these individuals -themselves have no such right. It is for this reason that the question -of nationality is a very important one for the Law of Nations, and that -individuals enjoy benefits from this law not as human beings but as -subjects of such States as are members of the Family of Nations. And so -distinct is the position as subjects of these members from the position -of stateless individuals and from subjects of States outside the Family -of Nations, that it has been correctly characterised as a kind of -international "indigenousness," a _Voelkerrechts-Indigenat_.[605] Just as -municipal citizenship procures for an individual the enjoyment of the -benefits of the Municipal Laws, so this international "indigenousness," -which is a necessary inference from municipal citizenship, procures the -enjoyment of the benefits of the Law of Nations. - -[Footnote 603: See below, [p] 294.] - -[Footnote 604: See below, [p] 312.] - -[Footnote 605: See Stoerk in Holtzendorff, II. p. 588.] - -[Sidenote: The Law of Nations and the Rights of Mankind.] - -[p] 292. Several writers[606] maintain that the Law of Nations guarantees -to every individual at home and abroad the so-called rights of mankind, -without regarding whether an individual be stateless or not, or whether -he be a subject of a member-State of the Family of Nations or not. Such -rights are said to comprise the right of existence, the right to -protection of honour, life, health, liberty, and property, the right of -practising any religion one likes, the right of emigration, and the -like. But such rights do not in fact enjoy any guarantee whatever from -the Law of Nations,[607] and they cannot enjoy such guarantee, since the -Law of Nations is a law between States, and since individuals cannot be -subjects of this law. But there are certain facts which cannot be denied -at the background of this erroneous opinion. The Law of Nations is a -product of Christian civilisation and represents a legal order which -binds States, chiefly Christian, into a community. It is therefore no -wonder that ethical ideas which are some of them the basis of, others a -development from, Christian morals, have a tendency to require the help -of International Law for their realisation. When the Powers stipulated -at the Berlin Congress of 1878 that the Balkan States should be -recognised only under the condition that they did not impose any -religious disabilities on their subjects, they lent their arm to the -realisation of such an idea. Again, when the Powers after the beginning -of the nineteenth century agreed to several international arrangements -in the interest of the abolition of the slave trade,[608] they fostered -the realisation of another of these ideas. And the innumerable treaties -between the different States as regards extradition of criminals, -commerce, navigation, copyright, and the like, are inspired by the idea -of affording ample protection to life, health, and property of -individuals. Lastly, there is no doubt that, should a State venture to -treat its own subjects or a part thereof with such cruelty as would -stagger humanity, public opinion of the rest of the world would call -upon the Powers to exercise intervention[609] for the purpose of -compelling such State to establish a legal order of things within its -boundaries sufficient to guarantee to its citizens an existence more -adequate to the ideas of modern civilisation. However, a guarantee of -the so-called rights of mankind cannot be found in all these and other -facts. Nor do the actual conditions of life to which certain classes of -subjects are forcibly submitted within certain States show that the Law -of Nations really comprises such guarantee.[610] - -[Footnote 606: Bluntschli, [p][p] 360-363 and 370; Martens, I. [p][p] 85 -and 86; Fiore, I. Nos. 684-712, and Code, Nos. 614-669; Bonfils, No. -397, and others.] - -[Footnote 607: The matter is treated with great lucidity by Heilborn, -"System," pp. 83-138.] - -[Footnote 608: It is incorrect to maintain that the Law of Nations has -abolished slavery, but there is no doubt that the conventional Law of -Nations has tried to abolish the slave trade. Three important general -treaties have been concluded for that purpose during the nineteenth -century, since the Vienna Congress--namely, (1) the Treaty of London, -1841, between Great Britain, Austria, France, Prussia, and Russia; (2) -the General Act of the Congo Conference of Berlin, 1885, whose article 9 -deals with the slave trade; (3) the General Act of the anti-slavery -Conference of Brussels, 1890, which is signed by Great Britain, -Austria-Hungary, Belgium, the Congo Free State, Denmark, France, (see, -however, below, [p] 517), Germany, Holland, Italy, Luxemburg, Persia, -Portugal, Russia, Spain, Sweden, Norway, the United States, Turkey, and -Zanzibar. See Queneuil, "De la traite des noirs et de l'esclavage" -(1907).] - -[Footnote 609: See above, [p] 137.] - -[Footnote 610: The reader may think of the sad position of the Jews -within the Russian Empire. The treatment of the native Jews in Roumania, -although the Powers have, according to the spirit of article 44 of the -Treaty of Berlin of 1878, a right of intervention, shows even more -clearly that the Law of Nations does not guarantee what are called -rights of mankind. See below, [p] 312.] - - -II - -NATIONALITY - - Vattel, I. [p][p] 220-226--Hall, [p][p] 66 and 87--Westlake, I. pp. 213, - 231-233--Halleck, I. p. 401--Taylor, [p][p] 172-178--Moore, III. [p][p] - 372-376--Bluntschli, [p][p] 364-380--Stoerk in Holtzendorff, II. pp. - 630-650--Gareis, [p] 54--Liszt, [p] 11--Ullmann, [p] 108--Bonfils, Nos. - 433-454--Despagnet, Nos. 329-333--Pradier-Fodere, III. No. - 1645--Rivier, I. p. 303--Nys, II. pp. 214-220, 229-237--Calvo, II. - [p][p] 539-540--Fiore, I. Nos. 644-658, 684-717, and Code, Nos. - 638-641--Martens, I. [p][p] 85-87--Hall, "Foreign Powers and - Jurisdiction" (1894), [p] 14--Cogordan, "La nationalite au point de - vue des rapports internationaux" (2nd ed. 1890)--Gargas in Z.V. V. - (1911), pp. 278-316 and [...] - -[Sidenote: Conception of Nationality.] - -[p] 293. Nationality of an individual is his quality of being a subject of -a certain State and therefore its citizen. It is not for International -but for Municipal Law to determine who is and who is not to be -considered a subject. And therefore it matters not, as far as the Law of -Nations is concerned, that Municipal Laws may distinguish between -different kinds of subjects--for instance, those who enjoy full -political rights and are on that account named citizens, and those who -are less favoured and are on that account not named citizens. Nor does -it matter that according to the Municipal Laws a person may be a subject -of a part of a State, for instance of a colony, but not a subject of the -mother-country, provided only such person appears as a subject of the -mother-country as far as the latter's international relations are -concerned. Thus, a person naturalised in a British Colony is for all -international purposes a British subject, although he may not have the -rights of a British subject within the United Kingdom itself.[611] For -all international purposes, all distinctions made by Municipal Laws -between subjects and citizens and between different kinds of subjects -have neither theoretical nor practical value, and the terms "subject" -and "citizen" are, therefore, synonymously made use of in the theory and -practice of International Law. - -[Footnote 611: See below, [p] 307, and Hall, "Foreign Powers and -Jurisdiction," [p] 20, who quotes, however, a decision of the French Cour -de Cassation according to which naturalisation in a British Colony does -not constitute a real naturalisation. But this decision is based on the -Code Civil of France and has nothing to do with the Law of Nations. See -also Westlake, I. pp. 231-233.] - -But it must be emphasised that nationality as citizenship of a certain -State must not be confounded with nationality as membership of a certain -nation in the sense of a race. Thus, all Englishmen, Scotchmen, and -Irishmen are, despite their different nationality as regards their race, -of British nationality as regards their citizenship. Thus, further, -although all Polish individuals are of Polish nationality _qua_ race, -they have been, since the partition of Poland at the end of the -eighteenth century between Russia, Austria, and Prussia, either of -Russian, Austrian, or German nationality _qua_ citizenship. - -[Sidenote: Function of Nationality.] - -[p] 294. It will be remembered that nationality is the link between -individuals and the benefits of the Law of Nations.[612] This function -of nationality becomes apparent with regard to individuals abroad, or -property abroad of individuals who themselves are within the territory -of their home State. Through one particular right and one particular -duty of every State towards all other States this function of -nationality becomes most conspicuous. The right is that of protection -over its citizens abroad which every State holds and occasionally -vigorously exercises towards other States; it will be discussed in -detail below, [p] 319. The duty, on the other hand, is that of receiving -on its territory such citizens as are not allowed to remain[613] on the -territory of other States. Since no State is obliged by the Law of -Nations to allow foreigners to remain within its boundaries, it may, for -many reasons, happen that certain individuals are expelled from all -foreign countries. The home State of those expelled cannot refuse to -receive them on the home territory, the expelling States having a claim -on the home State that the latter do receive the expelled -individuals.[614] - -[Footnote 612: See above, [p] 291.] - -[Footnote 613: See below, [p] 326.] - -[Footnote 614: Beyond the right of protection and the duty to receive -expelled citizens at home, the powers of a State over its citizens -abroad in consequence of its personal supremacy illustrate the function -of nationality. (See above, [p] 124.) Thus, the home State can tax -citizens living abroad in the interest of home finance, can request them -to come home for the purpose of rendering military service, can punish -them for crimes committed abroad, can categorically request them to come -home for good (so-called _jus avocandi_). And no State has a right -forcibly to retain foreign citizens called home by their home State, or -to prevent them from paying taxes to their home State, and the like.] - -[Sidenote: So-called _Proteges_ and _de facto_ Subjects.] - -[p] 295. Although nationality alone is the regular means through which -individuals can derive benefit from the Law of Nations, there are two -exceptional cases in which individuals may come under the international -protection of a State without these individuals being really its -subjects. It happens, first, that a State undertakes by an international -agreement the diplomatic protection of another State's citizens abroad, -and in this case the protected foreign subjects are named "_proteges_" -of the protecting States. Such agreements are either concluded for a -permanency as in the case of a small State, Switzerland for instance, -having no diplomatic envoy in a certain foreign country where many of -its subjects reside, or in time of war only, a belligerent handing over -the protection of its subjects in the enemy State to a neutral State. - -It happens, secondly, that a State promises diplomatic protection within -the boundaries of Turkey and other Oriental countries to certain -natives. Such protected natives are likewise named _proteges_, but they -are also called "_de facto_ subjects" of the protecting State. The -position of these _proteges_ is quite anomalous, it is based on custom -and treaties, and no special rules of the Law of Nations itself are in -existence concerning such _de facto_ subjects. Every State which takes -such _de facto_ subjects under its protection can act according to its -discretion, and there is no doubt that as soon as these Oriental States -have reached a level of civilisation equal to that of the Western -members of the Family of Nations, the whole institution of the _de -facto_ subjects will disappear. - -Concerning the exercise of protection in Morocco, a treaty[615] was -concluded at Madrid on July 3, 1880, signed by Morocco, Great Britain, -Austria-Hungary, Belgium, France, Germany, Holland, Italy, Portugal, -Spain, Sweden-Norway, and the United States of America, which sanctions -the stipulations of the treaty of 1863 between France and Morocco -concerning the same subject. According to this treaty the term -"_protege_" embraces[616] in relation to States of Capitulations only -the following classes of persons:--(1) Persons being subjects of a -country which is under the protectorate of the Power whose protection -they claim; (2) individuals corresponding to the classes enumerated in -the treaties with Morocco of 1863 and 1880 and in the Ottoman law of -1863; (3) persons, who under a special treaty have been recognised as -_proteges_ like those enumerated by article 4 of the French Muscat -Convention of 1844; and (4) those individuals who can establish that -they had been considered and treated as _proteges_ by the Power in -question before the year in which the creation of new _proteges_ was -regulated and limited--that is to say, before the year 1863, these -individuals not having lost the _status_ they had once legitimately -acquired. - -[Footnote 615: See Martens, N.R.G. 2nd Ser. VI. (1881), p. 624.] - -[Footnote 616: See p. 56 of the official publication of the Award, given -in 1905, of the Hague Court of Arbitration in the case of France _v._ -Great Britain concerning the Muscat Dhows. - -It is of interest to note that the Court considers it a fact that the -Powers have no longer the right to create _proteges_ in unlimited -numbers in any of the Oriental States, for the Award states on p. -56:--"Although the Powers have _expressis verbis_ resigned the exercise -of the pretended right to create '_proteges_' in unlimited number only -in relation to Turkey and Morocco, nevertheless the exercise of this -pretended right has been abandoned also in relation to other Oriental -States, analogy having always been recognised as a means to complete the -very deficient written regulations of the capitulations as far as -circumstances are analogous."] - -[Sidenote: Nationality and Emigration.] - -[p] 296. As emigration comprises the voluntary removal of an individual -from his home State with the intention of residing abroad, but not -necessarily with the intention of renouncing his nationality, it is -obvious that emigrants may well retain their nationality. Emigration is -in fact entirely a matter of internal legislation of the different -States. Every State can fix for itself the conditions under which -emigrants lose or retain their nationality, as it can also prohibit -emigration altogether, or can at any moment request those who have -emigrated to return to their former home, provided the emigrants have -retained their nationality of birth. And it must be specially emphasised -that the Law of Nations does not and cannot grant a right of emigration -to every individual, although it is frequently maintained that it is a -"natural" right of every individual to emigrate from his own -State.[617] - -[Footnote 617: Attention ought to be drawn to the fact that, to ensure -the protection of the interests of emigrants and immigrants from the -moral, hygienic, and economic view, the Institute of International Law, -at its meeting at Copenhagen in 1897, adopted a body of fourteen -principles concerning emigration under the heading "Voeux relatifs -a la matiere de l'emigration"; see Annuaire, XVI. (1897), p. 276. See -also Gargas in Z.V. V. (1911), pp. 278-316.] - - -III - -MODES OF ACQUIRING AND LOSING NATIONALITY - - Vattel, I. [p][p] 212-219--Hall, [p][p] 67-72--Westlake, I. pp. - 213-220--Lawrence, [p][p] 94-95--Halleck, I. pp. 402-418--Moore, - III. [p][p] 372-473--Taylor, [p][p] 176-183--Walker, [p] - 19--Bluntschli, [p][p] 364-373--Hartmann, [p] 81--Heffter, [p] - 59--Stoerk in Holtzendorff, II. pp. 592-630--Gareis, [p] - 55--Liszt, [p] 11--Ullmann, [p][p] 110 and 112--Bonfils, Nos. - 417-432--Despagnet, Nos. 318-327--Pradier-Fodere, III. Nos. - 1646-1691--Rivier, I. pp. 303-306--Calvo, II. [p][p] 541-654, VI. - [p][p] 92-117--Martens, II. [p][p] 44-48--Fiore, Code, Nos. - 660-669--Foote, "Private International Jurisprudence" (3rd ed. - 1904), pp. 1-52--Dicey, "Conflict of Laws" (1896), pp. - 173-204--Martitz, "Das Recht der Staatsangehoerigkeit im - internationalen Verkehr" (1885)--Cogordan, "La nationalite, &c" - (2nd ed. 1890), pp. 21-116, 317-400--Lapradelle, "De la - nationalite d'origine" (1893)--Berney, "La nationalite a - l'Institut de Droit International" (1897)--Bisocchi, "Acquisto e - perdita della Nazionalita, &c." (1907)--Sieber, "Das - Staatsbuergerrecht in internationalem Verkehr," 2 vols. - (1907)--Lehr, "La nationalite dans les principaux etats du globe" - (1909), and in R.I. 2nd Ser. X. (1908), pp. 285, 401, and 525. - - In 1893 the British Government addressed a circular to its - representatives abroad requesting them to send in a report - concerning the laws relating to nationality and naturalisation in - force in the respective foreign countries. These reports have been - collected and presented to Parliament. They are printed in - Martens, N.R.G. 2nd Ser. XIX. pp. 515-760. - -[Sidenote: Five Modes of Acquisition of Nationality.] - -[p] 297. Although it is for Municipal Law to determine who is and who is -not a subject of a State, it is nevertheless of interest for the theory -of the Law of Nations to ascertain how nationality can be acquired -according to the Municipal Law of the different States. The reason of -the thing presents five possible modes of acquiring nationality, and, -although no State is obliged to recognise all five, nevertheless all -States practically do recognise them. They are birth, naturalisation, -redintegration, subjugation, and cession. - -[Sidenote: Acquisition of Nationality by Birth.] - -[p] 298. The first and chief mode of acquiring nationality is by birth, -for the acquisition of nationality by another mode is exceptional only, -since the vast majority of mankind acquires nationality by birth and -does not change it afterwards. But no uniform rules exist according to -the Municipal Law of the different States concerning this matter. Some -States, as Germany and Austria, have adopted the rule that descent alone -is the decisive factor,[618] so that a child born of their subjects -becomes _ipso facto_ by birth their subject likewise, be the child born -at home or abroad. According to this rule, illegitimate children acquire -the nationality of their mother. Other States, such as Argentina, have -adopted the rule that the territory on which birth occurs is exclusively -the decisive factor.[619] According to this rule every child born on the -territory of such State, whether the parents be citizens or aliens, -becomes a subject of such State, whereas a child born abroad is foreign, -although the parents may be subjects. Again, other States, as Great -Britain[620] and the United States, have adopted a mixed principle, -since, according to their Municipal Law, not only children of their -subjects born at home or abroad become their subjects, but also such -children of alien parents as are born on their territory. - -[Footnote 618: _Jus sanguinis._] - -[Footnote 619: _Jus soli._] - -[Footnote 620: See details concerning British law on this point in Hall, -"Foreign Powers and Jurisdiction" (1894), [p] 14.] - -[Sidenote: Acquisition of Nationality through Naturalisation.] - -[p] 299. The most important mode of acquiring nationality besides birth is -that of naturalisation in the wider sense of the term. Through -naturalisation an alien by birth acquires the nationality of the -naturalising State. According to the Municipal Law of the different -States naturalisation may take place through six different acts--namely, -marriage, legitimation, option, acquisition of domicile, appointment as -Government official, grant on application. Thus, according to the -Municipal Law of most States, an alien female marrying a subject of such -State becomes thereby _ipso facto_ naturalised. Thus, further, according -to the Municipal Law of several States, an illegitimate child born of an -alien mother, and therefore an alien himself, becomes _ipso facto_ -naturalised through the father marrying the mother and thereby -legitimating the child.[621] Thus, thirdly, according to the Municipal -Law of some States, which declare children of foreign parents born on -their territory to be aliens, such children, if, after having come of -age, they make a declaration that they intend to be subjects of the -country of their birth, become _ipso facto_ by such option naturalised. -Again, fourthly, some States, such as Venezuela, let an alien become -naturalised _ipso facto_ by his taking his domicile[622] on their -territory. Some States, fifthly, let an alien become naturalised _ipso -facto_ on appointment as a Government official. And, lastly, in all -States naturalisation may be procured through a direct act on the part -of the State granting nationality to an alien who has applied for it. -This last kind of naturalisation is naturalisation in the narrower sense -of the term; it is the most important for the Law of Nations, and, -whenever one speaks of naturalisation pure and simple, such -naturalisation through direct grant on application is meant; it will be -discussed in detail below, [p][p] 303-307. - -[Footnote 621: English law has not adopted this rule.] - -[Footnote 622: It is doubtful (see Hall, [p] 64) whether the home State of -such individuals naturalised against their will must submit to this -_ipso facto_ naturalisation. See above, [p] 125, where the rule has been -stated that in consideration of the personal supremacy of the home State -over its citizens abroad no State can naturalise foreigners against -their will.] - -[Sidenote: Acquisition of Nationality through Redintegration.] - -[p] 300. The third mode of acquiring nationality is that by so-called -redintegration or resumption. Such individuals as have been natural-born -subjects of a State, but have lost their original nationality through -naturalisation abroad or for some other cause, may recover their -original nationality on their return home. One speaks in this case of -redintegration or resumption in contradistinction to naturalisation, the -favoured person being redintegrated and resumed into his original -nationality. Thus, according to Section 10 of the Naturalisation -Act,[623] 1870, a widow being a natural-born British subject, who has -lost her British nationality through marriage with a foreigner, may at -any time during her widowhood obtain a certificate of readmission to -British nationality, provided she performs the same conditions and -adduces the same evidence as is required in the case of an alien -applying for naturalisation. And according to section 8 of the same Act, -a British-born individual who has lost his British nationality through -being naturalised abroad, may, if he returns home, obtain a certificate -of readmission to British nationality, provided he performs the same -conditions and adduces the same evidence as is required in the case of -an alien applying for naturalisation. - -[Footnote 623: 33 and 34 Vict. c. 14.] - -[Sidenote: Acquisition of Nationality through Subjugation and Cession.] - -[p] 301. The fourth and fifth modes of acquiring nationality are by -subjugation after conquest and by cession of territory, the inhabitants -of the subjugated as well as of the ceded territory acquiring _ipso -facto_ by the subjugation or cession the nationality of the State which -acquires the territory. These modes of acquisition of nationality are -modes settled by the customary Law of Nations; it will be remembered -that details concerning this matter have been given above, [p][p] 219 and -240. - -[Sidenote: Seven modes of losing Nationality.] - -[p] 302. Although it is left in the discretion of the different States to -determine the grounds on which individuals lose their nationality, it is -nevertheless of interest for the theory of the Law of Nations to take -notice of these grounds. Seven modes of losing nationality must be -stated to exist according to the reason of the thing, although all -seven are by no means recognised by all the States. These modes -are:--Release, deprivation, expiration, option, substitution, -subjugation, and cession. - -(1) Release. Some States, as Germany, give their citizens the right to -ask to be released from their nationality. Such release, if granted, -denationalises the released individual. - -(2) Deprivation. According to the Municipal Law of some States, as, for -instance, Bulgaria, Greece, Italy, Holland, Portugal, and Spain, the -fact that a citizen enters into foreign civil or military service -without permission of his Sovereign deprives him of his nationality. - -(3) Expiration. Some States have legislated that citizenship expires in -the cases of such of their subjects as have emigrated and stayed abroad -beyond a certain length of time. Thus, a German ceases to be a German -subject through the mere fact that he has emigrated and stayed abroad -for ten years without having undertaken the necessary step for the -purpose of retaining his nationality. - -(4) Option. Some States, as Great Britain, which declare a child born of -foreign parents on their territory to be their natural-born subject, -although he becomes at the same time according to the Municipal Law of -the home State of the parents a subject of such State, give the right to -such child to make, after coming of age, a declaration that he desires -to cease to be a citizen. Such declaration of alienage creates _ipso -facto_ the loss of nationality. - -(5) Substitution. Many States, as, for instance, Great Britain, have -legislated that the nationality of their subjects extinguishes _ipso -facto_ by their naturalisation abroad, be it through marriage, grant on -application, or otherwise. Other States, however, as, for instance, -Germany, do not object to their citizens acquiring another nationality -besides that which they already possess. - -(6) Subjugation and cession. It is a universally recognised customary -rule of the Law of Nations that the inhabitants of subjugated as well as -ceded territory lose their nationality and acquire that of the State -which annexes the territory.[624] - -[Footnote 624: See above, [p] 301. Concerning the option sometimes given -to inhabitants of ceded territory to retain their former nationality, -see above, [p] 219.] - - -IV - -NATURALISATION IN ESPECIAL - - Vattel, I. [p] 214--Hall, [p][p] 71-71*--Westlake, [p] I. pp. - 225-230--Lawrence, [p][p] 95-96--Phillimore, I. [p][p] - 325-332--Halleck, I. pp. 403-410--Taylor, [p][p] 181-182--Walker, - [p] 19--Wharton, II. [p][p] 173-183--Moore, III. [p][p] - 377-380--Wheaton, [p] 85--Bluntschli, [p][p] 371-372--Ullmann, - [p][p] 110-111--Pradier-Fodere, III. Nos. 1656-1659--Calvo, II. - [p][p] 581-646--Martens, II. [p][p] 47-48--Stoicesco, "Etude sur - la naturalisation" (1875)--Folleville, "Traite de la - naturalisation" (1880)--Cogordan, "La nationalite, &c." (2nd ed. - 1890), pp. 117-284, 307-316--Delecaille, "De la naturalisation" - (1893)--Henriques, "The Law of Aliens, &c." (1906), pp. - 91-121--Piggott, "Nationality and Naturalisation, &c." 2 vols. - (new ed. 1907)--Hart, in the _Journal of the Society of - Comparative Legislation_, new series, vol. II. (1900), pp. 11-26. - -[Sidenote: Conception and Importance of Naturalisation.] - -[p] 303. Naturalisation in the narrower sense of the term--in -contradistinction to naturalisation _ipso facto_ through marriage, -legitimation, option, domicile, and Government office (see above, [p] -299)--must be defined as reception of an alien into the citizenship of a -State through a formal act on application of the favoured individual. -International Law does not provide any such rules for such reception, -but it recognises the natural competence of every State as a Sovereign -to increase its population through naturalisation, although a State -might by its Municipal Law be prevented from making use of this natural -competence.[625] In spite, however, of the fact that naturalisation is a -domestic affair of the different States, it is nevertheless of special -importance to the theory and practice of the Law of Nations. This is the -case because naturalisation is effected through a special grant of the -naturalising State, and regularly involves either a change or a -multiplication of nationality, facts which can be and have been the -source of grave international conflicts. In the face of the fact that -millions of citizens emigrate every year from their home countries with -the intention of settling permanently in foreign countries, where the -majority of them become sooner or later naturalised, the international -importance of naturalisation cannot be denied. - -[Footnote 625: But there is, as far as I know, no civilised State in -existence which abstains altogether from naturalising foreigners.] - -[Sidenote: Object of Naturalisation.] - -[p] 304. The object of naturalisation is always an alien. Some States will -naturalise such aliens only as are stateless because they never have -been citizens of another State or because they have renounced, or have -been released from or deprived of, the citizenship of their home State. -But other States, as Great Britain, naturalise also such aliens as are -and remain subjects of their home State. Most States naturalise such -person only as has taken his domicile in their country, has been -residing there for some length of time, and intends permanently to -remain in their country. And according to the Municipal Law of many -States, naturalisation of a married individual includes that of his wife -and children under age. But although every alien may be naturalised, no -alien has, according to the Municipal Law of most States, a claim to -become naturalised, naturalisation being a matter of discretion of the -Government, which can refuse it without giving any reasons. - -[Sidenote: Conditions of Naturalisation.] - -[p] 305. If granted, naturalisation makes an alien a citizen. But it is -left to the discretion of the naturalising State to grant naturalisation -under any conditions it likes. Thus, for example, Great Britain grants -naturalisation on the sole condition that the naturalised alien shall -not be deemed to be a British subject when within the limits of the -foreign State of which he has been a subject previously to his -naturalisation, unless at the time of naturalisation he has ceased to be -a subject of that State. And it must be specially mentioned that -naturalisation need not give an alien absolutely the same rights as are -possessed by natural-born citizens. Thus according to article 2 of the -Constitution of the United States of America a naturalised alien can -never be elected President.[626] - -[Footnote 626: A foreigner naturalised in Great Britain by Letters of -Denization does not acquire the same rights as a natural-born British -subject. See Hall, "Foreign Powers and Jurisdiction" (1894), [p] 22.] - -[Sidenote: Effect of Naturalisation upon previous Citizenship.] - -[p] 306. Since the Law of Nations does not comprise any rules concerning -naturalisation, the effect of naturalisation upon previous citizenship -is exclusively a matter of the Municipal Law of the States concerned. -Some States, as Great Britain,[627] have legislated that one of their -subjects becoming naturalised abroad loses thereby his previous -nationality; but other States, as Germany, have not done this. Further, -some States, as Great Britain again, deny every effect to the -naturalisation granted by them to an alien whilst he is staying on the -territory of the State whose subject he was previously to his -naturalisation, unless at the time of naturalisation he was no longer a -subject of such State. But other States do not make this provision. Be -that as it may, there can be no doubt that a person who is naturalised -abroad and temporarily or permanently returns into the country of his -origin, can be held responsible[628] for all acts done there at the time -before his naturalisation abroad. - -[Footnote 627: Formerly Great Britain upheld the rule _nemo potest -exuere patriam_, but Section 6 of the Naturalisation Act, 1870, does -away with that rule. Its antithesis is the rule _ne quis invitus -civitate mutetur, neve in civitate maneat invitus_ (Cicero, "Pro Balbo," -c. 13, [p] 31; see Rattigan, "Private International Law" (1895), p. 29, -No. 21).] - -[Footnote 628: Many instructive cases concerning this matter are -reported by Wharton, II. [p][p] 180 and 181, and Moore, III. [p][p] -401-407. See also Hall, [p] 71, where details concerning the practice of -many States are given with regard to their subjects naturalised abroad.] - -[Sidenote: Naturalisation in Great Britain.] - -[p] 307. The present law of Great Britain[629] concerning Naturalisation -is mainly contained in the Naturalisation Acts of 1870, 1874, and -1895.[630] Aliens may on their application become naturalised by a -certificate of naturalisation in case they have resided in the United -Kingdom or have been in the service of the British Crown for a term of -not less than five years, and in case they have the intention to -continue residing within the United Kingdom or serving under the Crown. -But naturalisation may be refused without giving a reason therefor -(section 7). British possessions may legislate on their own account -concerning naturalisation (section 16), and aliens so naturalised are -for all international purposes[631] British subjects. Where the Crown -enters into a convention with a foreign State to the effect that the -subjects of such State who have been naturalised in Great Britain may -divest themselves of their status as British subjects, such naturalised -British subjects can through a declaration of alienage shake off the -acquired British nationality (section 3). Naturalisation of the husband -includes that of his wife, and naturalisation of the father, or mother -in case she is a widow, includes naturalisation of such children as have -during infancy become resident in the United Kingdom at the time of -their father's or mother's naturalisation (section 10). Neither the case -of children who are not resident within the United Kingdom or not -resident with their father in the service of the Crown abroad at the -time of the naturalisation of their father or widowed mother, nor the -case of children born abroad after the naturalisation of the father is -mentioned in the Naturalisation Act. It is, therefore, to be taken for -granted that such children are not[632] British subjects, except -children born of a naturalised father abroad in the service of the -Crown.[633] - -[Footnote 629: As regards naturalisation in the United States of -America, see Moore, III. [p][p] 381-389, and Dyne, "Naturalisation in the -United States" (1907).] - -[Footnote 630: 33 Vict. c. 14; 35 and 36 Vict. c. 39; 58 & 59 Vict. c. -43. See Foote, "Private International Jurisprudence," 3rd ed. (1904), -pp. 1-51; Westlake, "Private International Law," 4th ed. (1905), [p][p] -284-287; Dicey, "Conflict of Laws," 2nd ed. (1908), pp. 172-191.] - -[Footnote 631: See Hall, "Foreign Powers and Jurisdiction," [p][p] 20 and -21, especially concerning naturalisation in India.] - -[Footnote 632: See Hall, "Foreign Powers and Jurisdiction," [p] 19.] - -[Footnote 633: See Naturalisation Act, 1895 (58 & 59 Vict. c. 43).] - -Not to be confounded with naturalisation proper is naturalisation -through _denization_ by means of Letters Patent under the Great Seal. -This way of making an alien a British subject is based on a very ancient -practice[634] which has not yet become obsolete. Such denization -requires no previous residence within the United Kingdom. "A person may -be made a denizen without ever having set foot upon British soil. There -have been, and from time to time there no doubt will be, persons of -foreign nationality to whom it is wished to entrust functions which can -only be legally exercised by British subjects. In such instances, the -condition of five years' residence in the United Kingdom would generally -be prohibitory. The difficulty can be avoided by the issue of Letters of -Denization; and it is believed that on one or two occasions letters have -in fact been issued with the view of enabling persons of foreign -nationality to exercise British consular jurisdiction in the East." -(Hall.) - -[Footnote 634: See Hall, "Foreign Powers and Jurisdiction," [p] 22.] - - -V - -DOUBLE AND ABSENT NATIONALITY - - Hall, [p] 71--Westlake, I. pp. 221-225--Lawrence, [p] 96--Halleck, - I. pp. 410-413--Taylor, [p] 183--Wheaton, [p] 85 (Dana's - note)--Moore, III. [p][p] 426-430--Bluntschli, [p][p] - 373-374--Hartmann, [p] 82--Heffter, [p] 59--Stoerk in - Holtzendorff, II. pp. 650-655--Ullmann, [p] 110--Bonfils, No. - 422--Pradier-Fodere, III. Nos. 1660-1665--Rivier, I. pp. - 304-306--Calvo, II. [p][p] 647-654--Martens, II. [p] 46. - -[Sidenote: Possibility of Double and Absent Nationality.] - -[p] 308. The Law of Nations having no rule concerning acquisition and loss -of nationality beyond this, that nationality is lost and acquired -through subjugation and cession, and, on the other hand, the Municipal -Laws of the different States differing in many points concerning this -matter, the necessary consequence is that an individual may own two -different nationalities as easily as none at all. The points to be -discussed here are therefore: how double nationality occurs, the -position of individuals with double nationality, how absent nationality -occurs, the position of individuals destitute of nationality, and, -lastly, means of redress against difficulties arising from double and -absent nationality. - -It must, however, be specially mentioned that the Law of Nations is -concerned with such cases only of double and absent nationality as are -the consequences of conflicting Municipal Laws of several absolutely -different States. Such cases as are the consequence of the Municipal -Laws of a Federal State or of a State which, as Great Britain, allows -outlying parts to legislate on their own account concerning -naturalisation, fall outside the scope of the Law of Nations. Thus the -fact that, according to the law of Germany, a German can be at the same -time a subject of several member-States of the German Empire, or can be -a subject of this Empire without being a subject of one of its -member-States, does as little concern the Law of Nations as the fact -that an individual can be a subject of a British Colonial State without -at the same time being a subject of the United Kingdom. For -internationally such individuals appear as subjects of such Federal -State or the mother-country, whatever their position may be inside these -States. - -[Sidenote: How Double Nationality occurs.] - -[p] 309. An individual may own double nationality knowingly or -unknowingly, and with or without intention. And double nationality may -be produced by every mode of acquiring nationality. Even birth can vest -a child with double nationality. Thus, every child born in Great -Britain of German parents acquires at the same time British and German -nationality, for such child is British according to British, and German -according to German Municipal Law. Double nationality can likewise be -the result of marriage. Thus, a Venezuelan woman marrying an Englishman -acquires according to British law British nationality, but according to -Venezuelan law she does not lose her Venezuelan nationality. -Legitimation of illegitimate children can produce the same effect. Thus, -an illegitimate child of a German born in England of an English mother -is a British subject according to British and German law, but if after -the birth of the child the father marries the mother and remains a -resident in England, he thereby legitimates the child according to -German law, and such child acquires thereby German nationality without -losing his British nationality, although the mother does lose her -British nationality.[635] Again, double nationality may be the result of -option. Thus, a child born in France of German parents acquires German -nationality, but if, after having come of age, he acquires French -nationality by option through making the declaration necessary according -to French Municipal Law, he does not thereby, according to German -Municipal Law, lose his German nationality. It is not necessary to give -examples of double nationality caused by taking domicile abroad, -accepting foreign Government office, and redintegration, and it suffices -merely to draw attention to the fact that naturalisation in the narrower -sense of the term is frequently a cause of double nationality, since -individuals may apply for and receive naturalisation in a State without -thereby losing the nationality of their home State. - -[Footnote 635: This is the consequence of Section 10, Nos. 1 and 3, of -the Naturalisation Act, 1870.] - -[Sidenote: Position of Individuals with Double Nationality.] - -[p] 310. Individuals owning double nationality bear in the language of -diplomatists the name _sujets mixtes_. The position of such "mixed -subjects" is awkward on account of the fact that two different States -claim them as subjects, and therefore their allegiance. In case a -serious dispute arises between these two States which leads to war, an -irreconcilable conflict of duties is created for these unfortunate -individuals. It is all very well to say that such conflict is a personal -matter which concerns neither the Law of Nations nor the two States in -dispute. As far as an individual has, through naturalisation, option, -and the like, acquired his double nationality, one may say that he has -placed himself in that awkward position by intentionally and knowingly -acquiring a second without being released from his original nationality. -But those who are natural-born _sujets mixtes_ in most cases do not know -thereof before they have to face the conflict, and their difficult -position is not their own fault. - -Be that as it may, there is no doubt that each of the States claiming -such an individual as subject is internationally competent to do this, -although they cannot claim him against one another, since each of them -correctly maintains that he is its subject.[636] But against third -States each of them appears as his Sovereign, and it is therefore -possible that each of them can exercise its right of protection over him -within third States. - -[Footnote 636: I cannot agree with the statement in its generality made -by Westlake, I. p. 221:--"If, for instance, a man claimed as a national -both by the United Kingdom and by another country should contract in the -latter a marriage permitted by its laws to its subjects, an English -Court would have to accept him as a married man." If this were correct, -the marriage of a German who, without having given up his German -citizenship, has become naturalised in Great Britain and has afterwards -married his niece in Germany, would have to be recognised as legal by -the English Courts. The correct solution seems to me to be that such -marriage is legal in Germany, but not legal in England, because British -law does not admit of marriage between uncle and niece. The case is -different when a German who marries his niece in Germany, afterwards -takes his domicile and becomes naturalised in England; in this case -English Courts would have to recognise the marriage as legal because -German law does not object to a marriage between uncle and niece, and -because the marriage was concluded before the man took his domicile in -England and became a British subject. See Foote, "Private International -Jurisprudence," 3rd ed. (1904), p. 106, and the cases there cited.] - -[Sidenote: How Absent Nationality occurs.] - -[p] 311. An individual may be destitute of nationality knowingly or -unknowingly, intentionally or through no fault of his own. Even by birth -a person may be stateless. Thus, an illegitimate child born in Germany -of an English mother is actually destitute of nationality because -according to German law he does not acquire German nationality, and -according to British law he does not acquire British nationality. Thus, -further, all children born in Germany of parents who are destitute of -nationality are themselves, according to German law, stateless. But -statelessness may take place after birth. All individuals who have lost -their original nationality without having acquired another are in fact -destitute of nationality. - -[Sidenote: Position of Individuals destitute of Nationality.] - -[p] 312. That stateless individuals are objects of the Law of Nations in -so far as they fall under the territorial supremacy of the State on -whose territory they live there is no doubt whatever. But since they do -not own a nationality, the link[637] by which they could derive benefits -from International Law is missing, and thus they lack any protection -whatever as far as this law is concerned. The position of such -individuals destitute of nationality may be compared to vessels on the -Open Sea not sailing under the flag of a State, which likewise do not -enjoy any protection whatever. In practice, stateless individuals are in -most States treated more or less as though they were subjects of foreign -States, but as a point of international legality there is no restriction -whatever upon a State's maltreating them to any extent.[638] - -[Footnote 637: See above, [p] 291.] - -[Footnote 638: The position of the Jews in Roumania furnishes a sad -example. According to Municipal Law they are, with a few exceptions, -considered as foreigners for the purpose of avoiding the consequences of -article 44 of the Treaty of Berlin, 1878, according to which no -religious disabilities may be imposed by Roumania upon her subjects. But -as these Jews are not subjects of any other State, Roumania compels them -to render military service, and actually treats them in every way -according to discretion without any foreign State being able to exercise -a right of protection over them. See Rey in R.G. X. (1903), pp. 460-526, -and Bar in R.I. 2nd Ser. IX. (1907), pp. 711-716. See also above, [p] 293, -p. 369, note 2.] - -[Sidenote: Redress against Difficulties arising from Double and Absent -Nationality.] - -[p] 313. Double as well as absent nationality of individuals has from time -to time created many difficulties for the States concerned. As regards -the remedy for such difficulties, it is comparatively easy to meet those -created by absent nationality. If the number of stateless individuals -increases much within a certain State, the latter can require them to -apply for naturalisation or to leave the country; it can even naturalise -them by Municipal Law against their will, as no other State will, or has -a right to, interfere, and as, further, the very fact of the existence -of individuals destitute of nationality is a blemish in Municipal as -well as in International Law. Much more difficult is it, however, to -find, within the limits of the present rules of the Law of Nations, -means of redress against conflicts arising from double nationality. Very -grave disputes indeed have occasionally occurred between States on -account of individuals who were claimed as subjects by both sides. Thus, -in 1812, a time when England still kept to her old rule that no -natural-born English subject could lose his nationality, the United -States went to war with England because the latter impressed Englishmen -naturalised in America from on board American merchantmen, claiming the -right to do so, as according to her law these men were still English -citizens. Thus, further, Prussia frequently had during the sixties of -the last century disputes with the United States on account of Prussian -individuals who, without having rendered military service at home, had -emigrated to America to become there naturalised and had afterwards -returned to Prussia.[639] Again, during the time of the revolutionary -movements in Ireland in the last century before the Naturalisation Act -of 1870 was passed, disputes arose between Great Britain and the United -States on account of such Irishmen as took part in these revolutionary -movements after having become naturalised in the United States.[640] It -would seem that the only way in which all the difficulties arising from -double and absent nationality could really be done away with is for all -the Powers to agree upon an international convention, according to which -they undertake the obligation to enact by their Municipal Law such -corresponding rules regarding acquisition and loss of nationality as -make the very occurrence of double and absent nationality -impossible.[641] - -[Footnote 639: The case of Martin Koszta ought here to be mentioned, -details of which are reported by Wharton, II. [p] 175; Moore, III. [p][p] -490-491, and Martens, "Causes Celebre," V. pp. 583-599. Koszta was a -Hungarian subject who took part in the revolutionary movement of 1848, -escaped to the United States, and in July, 1852, made a declaration -under oath, before a proper tribunal, of his intention to become -naturalised there. After remaining nearly two years in the United -States, but before he was really naturalised, he visited Turkey, and -obtained a _tezkereh_, a kind of letter of safe-conduct, from the -American Charge d'Affaires at Constantinople. Later on, while at Smyrna, -he was seized by Austrian officials and taken on board an Austrian -man-of-war with the intention of bringing him to Austria, to be there -punished for his part in the revolution of 1848. The American Consul -demanded his release, but Austria maintained that she had a right to -arrest Koszta according to treaties between her and Turkey. Thereupon -the American man-of-war _Saint Louis_ threatened to attack the Austrian -man-of-war in case she would not give up her prisoner, and an -arrangement was made that Koszta should be delivered into the custody of -the French Consul at Smyrna until the matter was settled between the -United States and Austrian Governments. Finally, Austria consented to -Koszta's being brought back to America. Although Koszta was not yet -naturalised, the United States claimed a right of protection over him, -since he had taken his domicile on her territory with the intention to -become there naturalised in due time, and had thereby in a sense -acquired the national character of an American.] - -[Footnote 640: The United States have, through the so-called "Bancroft -Treaties," attempted to overcome conflicts arising from double -nationality. The first of these treaties was concluded in 1868 with the -North German Confederation, the precursor of the present German Empire, -and signed on behalf of the United States by her Minister in Berlin, -George Bancroft. (See Wharton, II. [p][p] 149 and 179, and Moore, III. -[p][p] 391-400.) In the same and the following years treaties of the -same kind were concluded with many other States, the last with Portugal -in 1908. A treaty of another kind, but with the same object, was -concluded between the United States and Great Britain on May 13, 1870. -(See Martens, N.R.G. XX. p. 524, and Moore, III. [p] 397.) All these -treaties stipulate that naturalisation in one of the contracting States -shall be recognised by the other, whether the naturalised individual has -or has not previously been released from his original citizenship, -provided he has resided for five years in such country. And they further -stipulate that such naturalised individuals, in case they return after -naturalisation into their former home State and take their residence -there for some years, either _ipso facto_ become again subjects of their -former home State and cease to be naturalised abroad (as the Bancroft -Treaties), or can be reinstated in their former citizenship, and cease -thereby to be naturalised abroad (as the treaty with Great Britain).] - -[Footnote 641: The Institute of International Law has studied the -matter, and formulated at its meeting in Venice in 1896 six rules, -which, if adopted on the part of the different States, would do away -with many of the difficulties. (See Annuaire, XV. p. 270.)] - - -VI - -RECEPTION OF ALIENS AND RIGHT OF ASYLUM - - Vattel, II. [p] 100--Hall, [p][p] 63-64--Westlake, I. pp. - 208-210--Lawrence, [p][p] 97-98--Phillimore, I. [p][p] 365-370--Twiss, I. - [p] 238--Halleck, I. pp. 452-454--Taylor, [p] 186--Walker, [p] - 19--Wharton, II. [p] 206--Wheaton, [p] 115, and Dana's Note--Moore, - IV. [p][p] 560-566--Bluntschli, [p][p] 381-398--Hartmann, [p][p] 84-85, - 89--Heffter, [p][p] 61-63--Stoerk in Holtzendorff, II. pp. - 637-650--Gareis, [p] 57--Liszt, [p] 25--Ullmann, [p][p] 113-115--Bonfils, - Nos. 441-446--Despagnet, Nos. 339-343--Rivier, I. pp. - 307-309--Nys, II. pp. 232-237--Calvo, II. [p][p] 701-706, VI. [p] - 119--Martens, II. [p] 46--Overbeck, "Niederlassungsfreiheit und - Ausweisungsrecht" (1906); Henriques, "The Law of Aliens, &c." - (1906)--Sibley and Elias, "The Aliens Act, &c." - (1906)--Proceedings of the American Society of International Law, - 1911, pp. 65-115. - -[Sidenote: No Obligation to admit Aliens.] - -[p] 314. Many writers[642] maintain that every member of the Family of -Nations is bound by International Law to admit all aliens into its -territory for all lawful purposes, although they agree that every State -could exclude certain classes of aliens. This opinion is generally held -by those who assert that there is a fundamental right of intercourse -between States. It will be remembered[643] that no such fundamental -right exists, but that intercourse is a characteristic of the position -of the States within the Family of Nations and therefore a -presupposition of the international personality of every State. A State, -therefore, cannot exclude aliens altogether from its territory without -violating the spirit of the Law of Nations and endangering its very -membership of the Family of Nations. But no State actually does exclude -aliens altogether. The question is only whether an international legal -duty can be said to exist for every State to admit all unobjectionable -aliens to all parts of its territory. And it is this duty which must be -denied as far as the customary Law of Nations is concerned. It must be -emphasised that, apart from general conventional arrangements, as, for -instance, those concerning navigation on international rivers, and apart -from special treaties of commerce, friendship, and the like, no State -can claim the right for its subjects to enter into and reside on the -territory of a foreign State. The reception of aliens is a matter of -discretion, and every State is by reason of its territorial supremacy -competent to exclude aliens from the whole or any part of its territory. -And it is only by an inference of this competence that Great -Britain,[644] the United States of America, and other States have made -special laws according to which paupers and criminals, as well as -diseased and other objectionable aliens, are prevented from entering -their territory. Every State is and must remain master in its own house, -and such mastership is of especial importance with regard to the -admittance of aliens. Of course, if a State excluded all subjects of one -State only, this would constitute an unfriendly act, against which -retorsion would be admissible; but it cannot be denied that a State is -competent to do this, although in practice such wholesale exclusion will -never happen. Hundreds of treaties of commerce and friendship exist -between the members of the Family of Nations according to which they are -obliged to receive each other's unobjectionable subjects, and thus -practically the matter is settled, although in strict law every State is -competent to exclude foreigners from its territory.[645] - -[Footnote 642: See, for instance, Bluntschli, [p] 381, and Liszt, [p] 25.] - -[Footnote 643: See above, [p] 141.] - -[Footnote 644: See the Aliens Act, 1905 (5 Edw. VII. c. 13). See also -Henriques, "The Law of Aliens, &c." (1906), and Sibley and Elias, "The -Aliens Act, &c." (1906).] - -[Footnote 645: The Institute of International Law has studied the -matter, and adopted, at its meeting at Geneva in 1892 (see Annuaire, -XII. p. 219), a body of forty-one articles concerning the admission and -expulsion of aliens; articles 6-13 deal with the admittance of aliens.] - -[Sidenote: Reception of Aliens under conditions.] - -[p] 315. It is obvious that, if a State need not receive aliens at all, it -can, on the other hand, receive them under certain conditions only. -Thus, for example, Russia does not admit aliens without passports, and -if the alien adheres to the Jewish faith he has to submit to a number of -special restrictions. Thus, further, during the time Napoleon III. ruled -in France, every alien entering French territory from the sea or from -neighbouring land was admitted only after having stated his name, -nationality, and the place to which he intended to go. Some States, as -Switzerland, make a distinction between such aliens as intend to settle -down in the country and such as intend only to travel in the country; no -alien is allowed to settle in the country without having asked and -received a special authorisation on the part of the Government, whereas -the country is unconditionally open to all mere travelling aliens. - -[Sidenote: So-called Right of Asylum.] - -[p] 316. The fact that every State exercises territorial supremacy over -all persons on its territory, whether they are its subjects or aliens, -excludes the prosecution of aliens thereon by foreign States. Thus, a -foreign State is, provisionally at least, an asylum for every individual -who, being prosecuted at home, crosses its frontier. In the absence of -extradition treaties stipulating the contrary, no State is by -International Law obliged to refuse admittance into its territory to -such a fugitive or, in case he has been admitted, to expel him or -deliver him up to the prosecuting State. On the contrary, States have -always upheld their competence to grant asylum if they choose to do so. -Now the so-called right of asylum is certainly not a right of the alien -to demand that the State into whose territory he has entered with the -intention of escaping prosecution from some other State should grant -protection and asylum. For such State need not grant them. The so-called -right of asylum is nothing but the competence mentioned above of every -State, and inferred from its territorial supremacy, to allow a -prosecuted alien to enter and to remain on its territory under its -protection, and to grant thereby an asylum to him. Such fugitive alien -enjoys the hospitality of the State which grants him asylum; but it -might be necessary to place him under surveillance, or even to intern -him at some place in the interest of the State which is prosecuting him. -For it is the duty of every State to prevent individuals living on its -territory from endangering the safety of another State. And if a State -grants asylum to a prosecuted alien, this duty becomes of special -importance. - - -VII - -POSITION OF ALIENS AFTER RECEPTION - - Vattel, I. [p] 213, II. [p][p] 101-115--Hall, [p][p] 63 and - 87--Westlake, I. pp. 211-212, 313-316--Lawrence, [p][p] - 97-98--Phillimore, I. [p][p] 332-339--Twiss, I. [p] 163--Taylor, - [p][p] 173, 187, 201-203--Walker, [p] 19--Wharton, II. [p][p] - 201-205--Wheaton, [p] 77-82--Moore, IV. [p][p] - 534-549--Bluntschli, [p][p] 385-393--Hartmann, [p][p] - 84-85--Heffter, [p] 62--Stoerk in Holtzendorff, II. pp. - 637-650--Gareis, [p] 57--Liszt, [p] 25--Ullmann, [p][p] - 113-115--Bonfils, Nos. 447-454--Despagnet, Nos. 339-343--Rivier, - I. pp. 309-311--Calvo, II. [p][p] 701-706--Martens, II. [p] - 46--Gaston de Leval, "De la protection des nationaux a l'etranger" - (1907)--Wheeler in A.J. III. (1909), pp. 869-884--Proceedings of - the American Society of International Law, 1911, pp. 32-65, - 150-225. - -[Sidenote: Aliens subjected to territorial Supremacy.] - -[p] 317. With his entrance into a State, an alien, unless he belongs to -the class of those who enjoy so-called exterritoriality, falls at once -under such State's territorial supremacy, although he remains at the -same time under the personal supremacy of his home State. Such alien is -therefore under the jurisdiction of the State in which he stays, and is -responsible to such State for all acts he commits on its territory. He -is further subjected to all administrative arrangements of such State -which concern the very locality where the alien is. If in consequence of -a public calamity, such as the outbreak of a fire or an infectious -disease, certain administrative restrictions are enforced, they can be -enforced against all aliens as well as against citizens. But apart from -jurisdiction and mere local administrative arrangements, both of which -concern all aliens alike, a distinction must be made between such aliens -as are merely travelling and stay, therefore, only temporarily on the -territory, and such as take their residence there either permanently or -for some length of time. A State has wider power over aliens of the -latter kind; it can make them pay rates and taxes, and can even compel -them in case of need, under the same conditions as citizens, to serve in -the local police and the local fire brigade for the purpose of -maintaining public order and safety. On the other hand, an alien does -not fall under the personal supremacy of the local State; therefore he -cannot be made to serve[646] in its army or navy, and cannot, like a -citizen, be treated according to discretion. - -[Footnote 646: See, however, above, [p] 127, concerning the attitude of -Great Britain with regard to aliens in British colonies.] - -It must be emphasised that an alien is responsible to the local State -for all illegal acts which he commits while the territory concerned is -during war temporarily occupied by the enemy. An illustrative case is -that of De Jager _v._ the Attorney-General for Natal.[647] De Jager was -a burgher of the South African Republic, but a settled resident at Natal -when the South African War broke out. In October 1899 the British forces -evacuated that part of Natal in which Waschbank, where he lived, is -situated, and the Boer forces were in occupation for some six months. He -joined them, and served in different capacities until March 1900, when -he went to the Transvaal, and took no further part in the war. - -[Footnote 647: L.R. [1907] App. C., 326. See Baty in _The Law Magazine -and Review_, XXXIII. (1908), pp. 214-218, who disapproves of the -conviction of De Jager.] - -He was tried in March 1901, and convicted of -high treason, and sentenced to five years' imprisonment and a fine of -_l._5000, or, failing payment thereof, to a further three years. - -[Sidenote: Aliens in Eastern Countries.] - -[p] 318. The rule that aliens fall under the territorial supremacy of the -State they are in finds an exception in Turkey and, further, in such -other Eastern States, like China, as are, in consequence of their -deficient civilisation, only for some parts members of the Family of -Nations. Aliens who are subjects of Christian States and enter into the -territory of such Eastern States, remain wholly under the -jurisdiction[648] of their home State. This exceptional condition of -things is based, as regards Turkey, on custom and treaties which are -called Capitulations, as regards other Eastern States on treaties -only.[649] Jurisdiction over aliens in these countries is exercised by -the consuls of their home States, which have enacted special Municipal -Laws for that purpose. Thus, Great Britain has enacted so-called Foreign -Jurisdiction Acts at several times, which are now all consolidated in -the Foreign Jurisdiction Act of 1890.[650] It must be specially -mentioned that Japan has since 1899 ceased to belong to the Eastern -States in which aliens are exempt from local jurisdiction. - -[Footnote 648: See below, [p] 440.] - -[Footnote 649: See Twiss, I. [p] 163, who enumerates many of these -treaties; see also Phillimore, I. [p][p] 336-339; Hall, "Foreign Powers and -Jurisdiction," [p][p] 59-91; and Scott, "The Law affecting Foreigners in -Egypt as the Result of the Capitulations" (1907).] - -[Footnote 650: 53 & 54 Vict. c. 37. See Piggott, "Exterritoriality. The -Law relating to Consular Jurisdiction, &c.," new edition (1907).] - -[Sidenote: Aliens under the Protection of their Home State.] - -[p] 319. Although aliens fall at once under the territorial supremacy of -the State they enter, they remain nevertheless under the protection of -their home State. By a universally recognised customary rule of the Law -of Nations every State holds a right of protection[651] over its -citizens abroad, to which corresponds the duty of every State to treat -foreigners on its territory with a certain consideration which will be -discussed below, [p][p] 320-322. The question here is only when and how -this right of protection can be exercised.[652] Now there is certainly, -as far as the Law of Nations is concerned, no duty incumbent upon a -State to exercise its protection over its citizens abroad. The matter is -absolutely in the discretion of every State, and no citizen abroad has -by International Law, although he may have it by Municipal Law, a right -to demand protection from his home State. Often for political reasons -States have in certain cases refused the exercise of their right of -protection over citizens abroad. Be that as it may, every State _can_ -exercise this right when one of its subjects is wronged abroad in his -person or property, either by the State itself on whose territory such -person or property is for the time, or by such State's officials or -citizens without such State's interfering for the purpose of making good -the wrong done.[653] And this right can be realised in several ways. -Thus, a State whose subjects are wronged abroad can diplomatically -insist upon the wrongdoers being punished according to the law of the -land and upon damages, if necessary, being paid to its subjects -concerned. It can, secondly, exercise retorsion and reprisals for the -purpose of making the other State comply with its demands. It can, -further, exercise intervention, and it can even go to war when -necessary. And there are other means besides those mentioned. It is, -however, quite impossible to lay down hard-and-fast rules as regards -the question in which way and how far in every case the right of -protection ought to be exercised. Everything depends upon the merits of -the individual case and must be left to the discretion of the State -concerned. The latter will have to take into consideration whether the -wronged alien was only travelling through or had settled down in the -country, whether his behaviour had been provocative or not, how far the -foreign Government identified itself with the acts of officials or -subjects, and the like. - -[Footnote 651: This right has, I believe, grown up in furtherance of -intercourse between the members of the Family of Nations (see above, [p] -142); Hall ([p] 87) and others deduce this indubitable right from the -"fundamental" right of self-preservation.] - -[Footnote 652: See Moore, VI. [p][p] 979-997, and Wheeler in A.J. III. -(1909), pp. 869-884.] - -[Footnote 653: Concerning the responsibility of a State for -internationally injurious acts of its own, its organs and other -officials, and its subjects, see above, [p][p] 151-167, and Anzilloti in -R.G. XIII. (1906), pp. 5 and 285. The right of protection over citizens -abroad is discussed in detail by Hall, [p] 87, Westlake, I. pp. 313-320, -and Gaston de Leval, op. cit. Concerning the right of protection of a -State over its citizens with regard to public debts of foreign States, -see above, [p][p] 135 (6) and 155.] - -[Sidenote: Protection to be afforded to Aliens' Persons and Property.] - -[p] 320. Under the influence of the right of protection over its subjects -abroad which every State holds, and the corresponding duty of every -State to treat aliens on its territory with a certain consideration, an -alien, provided he owns a nationality at all, cannot be outlawed in -foreign countries, but must be afforded protection of his person and -property. The home State of the alien has by its right of protection a -claim upon such State as allows him to enter its territory that such -protection shall be afforded, and it is no excuse that such State does -not provide any protection whatever for its own subjects. In consequence -thereof every State is by the Law of Nations compelled, at least, to -grant to aliens equality before the law with its citizens as far as -safety of person and property is concerned. An alien must in especial -not be wronged in person or property by the officials and Courts of a -State. Thus, the police must not arrest him without just cause, -custom-house officials must treat him civilly, Courts of Justice must -treat him justly and in accordance with the law. Corrupt administration -of the law against natives is no excuse for the same against aliens, and -no Government can cloak itself with the judgment of corrupt judges. - -[Sidenote: How far Aliens can be treated according to Discretion.] - -[p] 321. Apart from protection of person and property, every State can -treat aliens according to discretion, those points excepted concerning -which discretion is restricted through international treaties between -the States concerned. Thus, a State can exclude aliens from certain -professions and trades; it can, as Great Britain did formerly and Russia -does even to-day, exclude them from holding real property; it can, as -again Great Britain[654] did in former times, compel them to have their -names registered for the purpose of keeping them under control, and the -like. It must, however, be stated that there is a tendency within all -the States which are members of the Family of Nations to treat admitted -aliens more and more on the same footing as citizens, political rights -and duties, of course, excepted. Thus, for instance, with the only -exception that an alien cannot be sole or part owner of a British ship, -aliens having taken up their domicile in this country are for all -practical purposes treated by the law[655] of the land on the same -footing as British subjects. - -[Footnote 654: See an Act for the Registration of Aliens, &c., 1836 (6 & -7 William IV. c. 11).] - -[Footnote 655: That aliens cannot now any longer belong to the London -Stock Exchange, is an outcome not of British Municipal Law, but of -regulations of the Stock Exchange.] - -[Sidenote: Departure from the Foreign Country.] - -[p] 322. Since a State holds territorial only, but not personal supremacy -over an alien within its boundaries, it can never under any -circumstances prevent him from leaving its territory, provided he has -fulfilled his local obligations, as payment of rates and taxes, of -fines, of private debts, and the like. And an alien leaving a State can -take all his property away with him, and a tax for leaving the country -or tax upon the property he takes away with him[656] cannot be levied. -And it must be specially mentioned that since the beginning of the -nineteenth century the so-called _droit d'aubaine_ belongs to the past; -this is the name of the right, which was formerly frequently exercised, -of a State to confiscate the whole estate of an alien deceased on its -territory.[657] But if a State levies estate duties in the case of a -citizen dying on its territory, as Great Britain does according to the -Finance Act[658] of 1894, such duties can likewise be levied in case of -an alien dying on its territory. - -[Footnote 656: So-called _gabella emigrationis_.] - -[Footnote 657: See details in Wheaton, [p] 82. The _droit d'aubaine_ was -likewise named _jus albinagii_.] - -[Footnote 658: 57 & 58 Vict. c. 30. Estate duty is levied in Great -Britain in the case also of such alien dying abroad as leaves movable -property in the United Kingdom without having ever been resident there. -As far as the Law of Nations is concerned, it is doubtful whether Great -Britain is competent to claim estate duties in such cases.] - - -VIII - -EXPULSION OF ALIENS - - Hall, [p] 63--Westlake, I. p. 210--Phillimore, I. [p] 364--Halleck, I. - pp. 460-461--Taylor, [p] 186--Walker, [p] 19--Wharton, II. [p] - 206--Moore, IV. [p][p] 550-559--Bluntschli, [p][p] 383-384--Stoerk in - Holtzendorff, II. pp. 646-656--Ullmann, [p] 115--Bonfils, No. - 442--Despagnet, Nos. 336-337--Pradier-Fodere, III. Nos. - 1857-1859--Rivier, I. pp. 311-314--Nys, II. pp. 229-237--Calvo, - VI. [p][p] 119-125--Fiore, Code, Nos. 252-259--Martens, I. [p] - 79--Bleteau, "De l'asile et de l'expulsion" (1886)--Berc, "De - l'expulsion des etrangers" (1888)--Feraud-Giraud, "Droit - d'expulsion des etrangers" (1889)--Langhard, "Das Recht der - politischen Fremdenausweisung" (1891)--Overbeck, - "Niederlassungsfreiheit und Ausweisungsrecht" - (1906)--Rolin-Jaequemyns in R.I. XX. (1888), pp. 499 and - 615--Proceedings of the American Society of International Law, - 1911, pp. 119-149. - -[Sidenote: Competence to expel Aliens.] - -[p] 323. Just as a State is competent to refuse admittance to an alien, so -it is, in conformity with its territorial supremacy, competent to expel -at any moment an alien who has been admitted into its territory. And it -matters not whether the respective individual is only on a temporary -visit or has settled down for professional or business purposes on that -territory, having taken his domicile thereon. Such States, of course, as -have a high appreciation of individual liberty and abhor arbitrary -powers of Government will not readily expel aliens. Thus, the British -Government has no power to expel even the most dangerous alien without -the recommendation of a Court, or without an Act of Parliament making -provision for such expulsion. And in Switzerland, article 70 of the -Constitution empowers the Government to expel such aliens only as -endanger the internal and external safety of the land. But many States -are in no way prevented by their Municipal Law from expelling aliens -according to discretion, and examples of arbitrary expulsion of aliens, -who had made themselves objectionable to the respective Governments, are -numerous in the past and the present. - -On the other hand, it cannot be denied that, especially in the case of -expulsion of an alien who has been residing within the expelling State -for some length of time and has established a business there, the home -State of the expelled individual is by its right of protection over -citizens abroad justified in making diplomatic representations to the -expelling State and asking for the reasons for the expulsion. But as in -strict law a State can expel even domiciled aliens without so much as -giving the reasons, the refusal of the expelling State to supply the -reasons for expulsion to the home State of the expelled alien does not -constitute an illegal, although a very unfriendly, act. And there is no -doubt that every expulsion of an alien without just cause is, in spite -of its international legality, an unfriendly act, which can rightfully -be met with retorsion. - -[Sidenote: Just Causes of Expulsion of Aliens.] - -[p] 324. On account of the fact that retorsion might be justified, the -question is of importance what just causes of expulsion of aliens there -are. As International Law gives no detailed rules regarding expulsion, -everything is left to the discretion of the single States and depends -upon the merits of the individual case. Theory and practice correctly -make a distinction between expulsion in time of war and in time of -peace. A belligerent may consider it convenient to expel all enemy -subjects residing or temporarily staying within his territory. And, -although such a measure may be very hard and cruel, the opinion is -general that such expulsion is justifiable.[659] As regards expulsion in -time of peace, on the other hand, the opinions of writers as well as of -States naturally differ much. Such State as expels an alien will hardly -admit not having had a just cause. Some States, as Belgium[660] since -1885, possess Municipal Laws determining just causes for the expulsion -of aliens, and such States' discretion concerning expulsion is, of -course, more or less restricted. But many States do not possess such -laws, and are, therefore, entirely at liberty to consider a cause as -justifying expulsion or not. The Institute of International Law at its -meeting at Geneva in 1892 adopted a body of forty-one articles -concerning the admittance and expulsion of aliens, and in article 28 -thereof enumerated nine just causes for expulsion in time of peace.[661] -I doubt whether the States will ever come to an agreement about just -causes of expulsion. The fact cannot be denied that an alien is more or -less a guest in the foreign land, and the question under what conditions -such guest makes himself objectionable to his host cannot once for all -be answered by the establishment of a body of rules. So much is certain, -that with the gradual disappearance of despotic views in the different -States, and with the advance of true constitutionalism guaranteeing -individual liberty and freedom of opinion and speech, expulsion of -aliens, especially for political reasons, will become less frequent. -Expulsion will, however, never totally disappear, because it may well be -justified. Thus, for example, Prussia after the annexation of the -formerly Free Town of Frankfort-on-the-Main, was certainly justified in -expelling those individuals who, for the purpose of avoiding military -service in the Prussian Army, had by naturalisation become Swiss -citizens without giving up their residence at Frankfort. - -[Footnote 659: Thus in 1870, during the Franco-German war, the French -expelled all Germans from France, and the former South African Republic -expelled in 1899, during the Boer war, almost all British subjects. See -below, vol. II. [p] 100.] - -[Footnote 660: See details in Rivier, I. p. 312.] - -[Footnote 661: See Annuaire, XII. p. 223. Many of these causes, as -conviction for crimes, for instance, are certainly just causes, but -others are doubtful.] - -[Sidenote: Expulsion how effected.] - -[p] 325. Expulsion is, in theory at least, not a punishment, but an -administrative measure consisting in an order of the Government -directing a foreigner to leave the country. Expulsion must therefore be -effected with as much forbearance and indulgence as the circumstances -and conditions of the case allow and demand, especially when compulsion -is meted out to a domiciled alien. And the home State of the expelled, -by its right of protection over its citizens abroad, may well insist -upon such forbearance and indulgence. But this is valid as regards the -first expulsion only. Should the expelled refuse to leave the territory -voluntarily or, after having left, return without authorisation, he may -be arrested, punished, and forcibly brought to the frontier. - -[Sidenote: Reconduction in Contradistinction to Expulsion.] - -[p] 326. In many Continental States destitute aliens, foreign vagabonds, -suspicious aliens without papers of legitimation, alien criminals who -have served their punishment, and the like, are without any formalities -arrested by the police and reconducted to the frontier. There is no -doubt that the competence for such reconduction, which is often called -_droit de renvoi_, is an inference from the territorial supremacy of -every State, for there is no reason whatever why a State should not get -rid of such undesirable aliens as speedily as possible. But although -such reconduction is materially not much different from expulsion, it -nevertheless differs much from this in form, since expulsion is an order -to leave the country, whereas reconduction is forcible conveying away of -foreigners.[662] The home State of such reconducted aliens has the duty -to receive them, since, as will be remembered,[663] a State cannot -refuse to receive such of its subjects as are expelled from abroad. -Difficulties arise, however, sometimes concerning the reconduction of -such alien individuals as have lost their nationality through -long-continued absence[664] from home without having acquired another -nationality abroad. Such cases are a further example of the fact that -the very existence of stateless individuals is a blemish in Municipal as -well as International Law.[665] - -[Footnote 662: Rivier, I. p. 308, correctly distinguishes between -reconduction and expulsion, but Phillimore, I. [p] 364, seems to confound -them.] - -[Footnote 663: See above, [p] 294.] - -[Footnote 664: See above, [p] 302, No. 3.] - -[Footnote 665: It ought to be mentioned that many States have, either by -special treaties or in their treaties of commerce, friendship, and the -like, stipulated proper treatment of each other's destitute subjects on -each other's territory.] - - -IX - -EXTRADITION - - Hall, [p][p] 13 and 63--Westlake, I. pp. 241-251--Lawrence, [p][p] - 110-111--Phillimore, I. [p][p] 365-389D--Twiss, I. [p] 236--Halleck, I. - pp. 257-268--Taylor, [p][p] 205-211--Walker, [p] 19--Wharton, II. [p][p] - 268-282--Wheaton, [p][p] 115-121--Moore, IV. [p][p] 579-622--Bluntschli, - [p][p] 394-401--Hartmann, [p] 89--Heffter, [p] 63--Lammasch in - Holtzendorff, III. pp. 454-566--Liszt, [p] 33--Ullmann, [p][p] - 127-131--Bonfils, Nos. 455-481--Despagnet, Nos. - 276-286--Pradier-Fodere, III. Nos. 1863-1893--Merignhac, II. pp. - 732-777--Rivier, I. pp. 348-357--Nys, II. pp. 244-253--Calvo, II. - [p][p] 949-1071--Fiore, Code, Nos. 584-586--Martens, II. [p][p] - 91-98--Spear, "The Law of Extradition" (1879)--Lammasch, - "Auslieferungspflicht und Asylrecht" (1887)--Martitz, - "Internationale Rechtshilfe in Strafsachen," 2 vols. (1888 and - 1897)--Bernard, "Traite theorique et pratique de l'extradition," 2 - vols. (2nd ed. 1890)--Moore, "Treatise on Extradition" - (1891)--Hawley, "The Law of International Extradition" - (1893)--Clark, "The Law of Extradition" (3rd ed. 1903)--Biron and - Chalmers, "The Law and Practice of Extradition" (1903)--Piggott, - "Extradition" (1910)--Lammasch in R.G. III. (1896), pp. - 5-14--Diena in R.G. XII. (1905), pp. 516-544--See the French, - German, and Italian literature concerning extradition quoted by - Fauchille in Bonfils, No. 455. - -[Sidenote: Extradition no legal duty.] - -[p] 327. Extradition is the delivery of a prosecuted individual to the -State on whose territory he has committed a crime by the State on whose -territory the criminal is for the time staying. Although Grotius[666] -holds that every State has the duty either to punish or to surrender to -the prosecuting State such individuals within its boundaries as have -committed a crime abroad, and although there is as regards the majority -of such cases an important interest of civilised mankind that this -should be done, this rule of Grotius has never been adopted by the -States and has, therefore, never become a rule of the Law of Nations. On -the contrary, States have always upheld their competence to grant asylum -to foreign individuals as an inference from their territorial supremacy, -those cases, of course, excepted which fall under stipulations of -special extradition treaties, if any. There is, therefore, no universal -rule of customary International Law in existence which commands[667] -extradition. - -[Footnote 666: II. c. 21, [p] 4.] - -[Footnote 667: Clarke, op. cit. pp. 1-15, tries to prove that a duty to -extradite criminals does exist, but the result of all his labour is that -he finds that the refusal of extradition is "a serious violation of the -moral obligations which exist between civilised States" (see p. 14). But -nobody has ever denied this as far as the ordinary criminal is -concerned. The question is only whether an international _legal_ duty -exists to surrender a criminal. And this _legal_ duty States have always -denied.] - -[Sidenote: Extradition Treaties how arisen.] - -[p] 328. Since, however, modern civilisation categorically demands -extradition of criminals as a rule, numerous treaties have been -concluded between the several States stipulating the cases in which -extradition shall take place. According to these treaties, individuals -prosecuted for the more important crimes, political crimes excepted, are -actually always surrendered to the prosecuting State, if not punished -locally. But this solution of the problem of extradition is a product of -the nineteenth century only. Before the eighteenth century extradition -of ordinary criminals hardly ever occurred, although many States used -then frequently to surrender to each other political fugitives, -heretics, and even emigrants, either in consequence of special treaties -stipulating the surrender of such individuals, or voluntarily without -such treaties. Matters began to undergo a change in the eighteenth -century, for then treaties between neighbouring States frequently -stipulated extradition of ordinary criminals besides that of political -fugitives, conspirators, military deserters, and the like. Vattel (II. -[p] 76) is able to assert in 1758 that murderers, incendiaries, and -thieves are regularly surrendered by neighbouring States to each other. -But general treaties of extradition between all the members of the -Family of Nations did not exist in the eighteenth century, and there was -hardly a necessity for such general treaties, since traffic was not so -developed as nowadays and fugitive criminals seldom succeeded in -reaching a foreign territory beyond that of a neighbouring State. When, -however, in the nineteenth century, with the appearance of railways and -Transatlantic steamships, transit began to develop immensely, criminals -used the opportunity to flee to distant foreign countries. It was then -and thereby that the conviction was forced upon the States of civilised -humanity that it was in their common interest to surrender ordinary -criminals regularly to each other. General treaties of extradition -became, therefore, a necessity, and the several States succeeded in -concluding such treaties with each other. There is no civilised State in -existence nowadays which has not concluded such treaties with the -majority of the other civilised States. And the consequence is that, -although no universal rule of International Law commands it, extradition -of criminals between States is an established fact based on treaties. -The present condition of affairs is, however, very unsatisfactory, since -there are many hundreds of treaties in existence which do not at all -agree in their details. What is required nowadays, and what will -certainly be realised in the near future, is a universal treaty of -extradition, one single treaty to which all the civilised States become -parties.[668] - -[Footnote 668: The Second Pan-American Conference of 1902 produced a -treaty of extradition which was signed by twelve States, namely, the -United States of America, Colombia, Costa Rica, Chili, San Domingo, -Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, and Nicaragua, -but this treaty has not been ratified; see the text in "Annuaire de la -Vie Internationale" (1908-9), p. 461.] - -[Sidenote: Municipal Extradition Laws.] - -[p] 329. Some States, however, were unwilling to depend entirely upon the -discretion of their Governments as regards the conclusion of extradition -treaties and the procedure in extradition cases. They have therefore -enacted special Municipal Laws which enumerate those crimes for which -extradition shall be granted and asked in return, and which at the same -time regulate the procedure in extradition cases. These Municipal -Laws[669] furnish the basis for the conclusion of extradition treaties. -The first in the field with such an extradition law was Belgium in 1833, -which remained, however, for far more than a generation quite isolated. -It was not until 1870 that England followed the example given by -Belgium. English public opinion was for many years against extradition -treaties at all, considering them as a great danger to individual -liberty and to the competence of every State to grant asylum to -political refugees. This country possessed, therefore, before 1870 a few -extradition treaties only, which moreover were in many points -inadequate. But in 1870 the British Government succeeded in getting -Parliament to pass the Extradition Act.[670] This Act, which was amended -by another in 1873[671] and a third in 1895,[672] has furnished the -basis for extradition treaties of Great Britain with forty other -States.[673] Belgium enacted a new extradition law in 1874. Holland -enacted such a law in 1875, Luxemburg in the same year, Argentina in -1885, the Congo Free State in 1886, Peru in 1888, Switzerland in 1892. - -[Footnote 669: See Martitz, "Internationale Rechtshilfe," I. pp. -747-818, where the history of all these laws is sketched and their text -is printed.] - -[Footnote 670: 33 & 34 Vict. c. 52.] - -[Footnote 671: 36 & 37 Vict. c. 60.] - -[Footnote 672: 58 & 59 Vict. c. 33. On the history of extradition in -Great Britain before the Extradition Act, 1870, see Clarke, op. cit. pp. -126-166.] - -[Footnote 673: The full text of these treaties is printed by Clarke, as -well as Biron and Chalmers. Not to be confounded with extradition of -criminals to foreign States is extradition within the British Empire -from one part of the British dominions to another. This matter is -regulated by the Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 169).] - -Such States as possess no extradition laws and whose written -Constitution does not mention the matter, leave it to their Governments -to conclude extradition treaties according to their discretion. And in -these countries the Governments are competent to extradite an individual -even if no extradition treaty exists. - -[Sidenote: Object of Extradition.] - -[p] 330. Since extradition is the delivery of an incriminated individual -to the State on whose territory he has committed a crime by the State on -whose territory he is for the time staying, the object of extradition -can be any individual, whether he is a subject of the prosecuting State, -or of the State which is required to extradite him, or of a third State. -Many States, however, as France and most other States of the European -continent, have adopted the principle never to extradite one of their -subjects to a foreign State, but themselves to punish subjects of their -own for grave crimes committed abroad. Other States, as Great Britain -and the United States, have not adopted this principle, and do extradite -such of their subjects as have committed a grave crime abroad. Thus -Great Britain surrendered in 1879 to Austria, where he was convicted and -hanged,[674] one Tourville, a British subject, who, after having -murdered his wife in the Tyrol, had fled home to England. And it must be -emphasised that the object of extradition is an individual who has -committed a crime abroad, whether or not he was during the commission of -the criminal act physically present on the territory of the State where -the crime was committed. Thus, in 1884, Great Britain surrendered one -Nillins to Germany, who, by sending from Southampton forged bills of -exchange to a merchant in Germany as payment for goods ordered, was -considered to have committed forgery and to have obtained goods by -false pretences in Germany.[675] - -[Footnote 674: This case is all the more remarkable, as (see 24 & 25 -Vict. c. 100, [p] 9) the criminal law of England extends over murder and -manslaughter committed abroad by English subjects, and as, according to -article 3 of the extradition treaty of 1873 between England and -Austria-Hungary, the contracting parties are in no case under obligation -to extradite their own subjects.] - -[Footnote 675: See Clarke, op. cit. pp. 177 and 262, who, however, -disapproves of this surrender.] - -A conflict between International and Municipal Law arises if a certain -individual must be extradited according to an extradition treaty, but -cannot be extradited according to the Municipal Law of the State from -which extradition is demanded. Thus in the case of Salvatore -Paladini,[676] whose extradition was demanded by the United States of -America from the Italian Government in 1888 for having passed -counterfeit money, Italian Municipal Law, which prohibits the -extradition of an Italian citizen, came into conflict with article 1 of -the Extradition Treaty of 1868 between Italy and the United States which -stipulates extradition of criminals without exempting nationals. For -this reason Italy refused to extradite Paladini. It is noteworthy that -the United States, although they do not any longer press for extradition -of Italian subjects who, after having committed a crime in the United -States have returned to Italy, nevertheless consider themselves bound by -the above-mentioned treaty of 1868 to extradite to Italy such American -subjects as have committed a crime in Italy. Therefore, when in 1910 the -Italian Government demanded from the United States extradition of one -Porter Charlton,[677] an American citizen, for having committed a murder -in Italy, extradition was granted. - -[Footnote 676: See Moore, IV. [p] 594, pp. 290-297.] - -[Footnote 677: See A.J. V. (1911), pp. 182-191.] - -[Sidenote: Extraditable Crimes.] - -[p] 331. Unless a State is restricted by an extradition law, it can grant -extradition for any crime it thinks fit. And unless a State is bound by -an extradition treaty, it can refuse extradition for any crime. Such -States as possess extradition laws frame their extradition treaties -conformably therewith and specify in those treaties all those crimes for -which they are willing to grant extradition. And no person is to be -extradited whose deed is not a crime according to the Criminal Law of -the State which is asked to extradite, as well as of the State which -demands extradition. As regards Great Britain, the following are -extraditable crimes according to the Extradition Act of 1870:--Murder -and manslaughter; counterfeiting and uttering counterfeit money; forgery -and uttering what is forged; embezzlement and larceny; obtaining goods -or money by false pretences; crimes by bankrupts against bankruptcy -laws; fraud by a bailee, banker, agent, factor, trustee, or by a -director, or member, or public officer of any company; rape; abduction; -child stealing; burglary and housebreaking; arson; robbery with -violence; threats with intent to extort; piracy by the Law of Nations; -sinking or destroying a vessel at sea; assaults on board ship on the -High Seas with intent to destroy life or to do grievous bodily harm; -revolt or conspiracy against the authority of the master on board a ship -on the High Seas. The Extradition Acts of 1873 and 1906 added the -following crimes to the list:--Kidnapping, false imprisonment, perjury, -subornation of perjury, and bribery. - -Political criminals are, as a rule, not extradited,[678] and according -to many extradition treaties military deserters and such persons as have -committed offences against religion are likewise excluded from -extradition. - -[Footnote 678: See below, [p][p] 333-340.] - -[Sidenote: Effectuation and Condition of Extradition.] - -[p] 332. Extradition is granted only if asked for, and after the -formalities have taken place which are stipulated in the treaties of -extradition and the extradition laws, if any. It is effected through -handing over the criminal by the police of the extraditing State to the -police of the prosecuting State. But it must be emphasised that, -according to most extradition treaties, it is a condition that the -extradited individual shall be tried and punished for those crimes -exclusively for which his extradition has been asked and granted, or -for those at least which the extradition treaty concerned -enumerates.[679] If, nevertheless, an extradited individual is tried and -punished for another crime, the extraditing State has a right of -intervention.[680] - -[Footnote 679: See Mettgenberg in the "Zeitschrift fuer internationales -Recht," XVIII. (1908), pp. 425-430.] - -[Footnote 680: It ought to be mentioned that the Institute of -International Law in 1880, at its meeting in Oxford (see Annuaire, V. p. -117), adopted a body of twenty-six rules concerning extradition.] - -An important question is whether, in case a criminal, who has succeeded -in escaping into the territory of another State, is erroneously handed -over, without the formalities of extradition having been complied with, -by the police of the local State to the police of the prosecuting State, -such local State can demand that the prosecuting State shall send the -criminal back and ask for his formal extradition. This question was -decided in the negative in February 1911 by the Court of Arbitration at -the Hague in the case of France _v._ Great Britain concerning Savarkar. -This British-Indian subject, who was prosecuted for high treason and -abatement of murder, and was being transported in the P. and O. boat -_Morea_ to India for the purpose of standing his trial there, escaped to -the shore on October 25, 1910, while the vessel was in the harbour of -Marseilles. He was, however, seized by a French policeman, who, -erroneously and without further formalities, reconducted him to the -_Morea_ with the assistance of individuals from the vessel who had -raised a hue-and-cry. Since Savarkar was _prima facie_ a political -criminal, France demanded that England should give him up and should -request his extradition in a formal way, but England refused to comply -with this demand, and the parties, therefore, agreed to have the -conflict decided by the Court of Arbitration at the Hague. The award, -while admitting that an irregularity had been committed by the -reconduction of Savarkar to the British vessel, decided, correctly, I -believe, in favour of Great Britain, asserting that there was no rule of -International Law imposing, in circumstances such as those which have -been set out above, any obligation on the Power which has in its custody -a prisoner, to restore him on account of a mistake committed by the -foreign agent who delivered him up to that Power.[681] It should be -mentioned that the French Government had been previously informed of the -fact that Savarkar would be a prisoner on board the _Morea_ while she -was calling at Marseilles, and had agreed to this. - -[Footnote 681: See Hamelin, "L'Affaire Savarkar" (Extrait du "Recueil -general de Jurisprudence, de Doctrine et de Legislation coloniales," -1911), who defends the French view. The award of the Court of -Arbitration has been severely criticised by Baty in the _Law Magazine -and Review_, XXXVI. (1911), pp. 326-330; Kohler in Z.V. V. (1911), pp. -202-211; Strupp, "Zwei praktische Faelle aus dem Voelkerrecht" (1911), pp. -12-26; Robin in R.G. XVIII. (1911), pp. 303-352; Hamel in R.I. 2nd Ser. -XIII. (1911), pp. 370-403.] - - -X - -PRINCIPLE OF NON-EXTRADITION OF POLITICAL CRIMINALS - - Westlake, I. pp. 247-248--Lawrence, [p] 111--Taylor, [p] 212--Wharton, - II. [p] 272--Moore, IV. [p] 604--Bluntschli, [p] 396--Hartmann, [p] - 89--Lammasch in Holtzendorff, III. pp. 485-510--Liszt, [p] - 33--Ullmann, [p] 129--Rivier, I. pp. 351-357--Nys, II. pp. - 253-256--Calvo, II. [p][p] 1034-1036--Martens, II. [p] 96--Bonfils, Nos. - 466-467--Pradier-Fodere, III. Nos. 1871-1873--Merignhac, II. pp. - 754-771--Soldan, "L'extradition des criminels politiques" - (1882)--Martitz, "Internationale Rechtshilfe in Strafsachen," vol. - II. (1897), pp. 134-707--Lammasch, "Auslieferungspflicht und - Asylrecht" (1887), pp. 203-355--Grivaz, "Nature et effets du - principe de l'asyle politique" (1895)--Piggott, "Extradition" - (1910), pp. 42-60--Scott in A.J. III. (1909), pp. 459-461. - -[Sidenote: How Non-extradition of Political Criminals became the Rule.] - -[p] 333. Before the French Revolution[682] the term "political crime" was -unknown in either the theory or the practice of the Law of Nations. And -the principle of non-extradition of political criminals was likewise -non-existent. On the contrary, whereas extradition of ordinary -criminals was, before the eighteenth century at least, hardly ever -stipulated, treaties very often stipulated the extradition of -individuals who had committed such deeds as are nowadays termed -"political crimes," and such individuals were frequently extradited even -when no treaty stipulated it.[683] And writers in the sixteenth and -seventeenth centuries did not at all object to such practice on the part -of the States; on the contrary, they frequently approved of it.[684] It -is indirectly due to the French Revolution that matters gradually -underwent a change, since this event was the starting-point for the -revolt in the nineteenth century against despotism and absolutism -throughout the western part of the European continent. It was then that -the term "political crime" arose, and article 120 of the French -Constitution of 1793 granted asylum to foreigners exiled from their home -country "for the cause of liberty." On the other hand, the French -emigrants, who had fled from France to escape the Reign of Terror, found -an asylum in foreign States. However, the modern principle of -non-extradition of political criminals even then did not conquer the -world. Until 1830 political criminals frequently were extradited. But -public opinion in free countries began gradually to revolt against such -extradition, and Great Britain was its first opponent. The fact that -several political fugitives were surrendered by the Governor of -Gibraltar to Spain created a storm of indignation in Parliament in 1815, -where Sir James Mackintosh proclaimed the principle that no nation ought -to refuse asylum to political fugitives. And in 1816 Lord Castlereagh -declared that there could be no greater abuse of the law than by -allowing it to be the instrument of inflicting punishment on foreigners -who had committed political crimes only. The second in the field was -Switzerland, the asylum for many political fugitives from neighbouring -countries, when, after the final defeat of Napoleon, the reactionary -Continental monarchs refused the introduction of constitutional reforms -which were demanded by their peoples. And although, in 1823, Switzerland -was forced by threats of the reactionary leading Powers of the Holy -Alliance to restrict somewhat the asylum afforded by her to individuals -who had taken part in the unsuccessful political revolts in Naples and -Piedmont, the principle of non-extradition went on fighting its way. The -question as to that asylum was discussed with much passion in the press -of Europe. And although the principle of non-extradition was far from -becoming universally recognised, that discussion indirectly fostered its -growth. A practical proof thereof is that in 1830 even Austria and -Prussia, two of the reactionary Powers of that time, refused Russia's -demand for extradition of fugitives who had taken part in the Polish -Revolution of that year. And another proof thereof is that at about the -same time, in 1829, a celebrated dissertation[685] by a Dutch jurist -made its appearance, in which the principle of non-extradition of -political criminals was for the first time defended with juristic -arguments and on a juristic basis. - -[Footnote 682: I follow in this section for the most part the summary of -the facts given by Martitz, op. cit. II. pp. 134-184.] - -[Footnote 683: Martitz, op. cit. II. p. 177, gives a list of important -extraditions of political criminals which took place between 1648 and -1789.] - -[Footnote 684: So Grotius, II. c. 21, [p] 5, No. 5.] - -[Footnote 685: H. Provo Kluit, "De deditione profugorum."] - -On the other hand, a reaction set in in 1833, when Austria, Prussia, and -Russia concluded treaties which remained in force for a generation, and -which stipulated that henceforth individuals who had committed crimes of -high treason and _lese-majeste_, or had conspired against the safety of -the throne and the legitimate Government, or had taken part in a revolt, -should be surrendered to the State concerned. The same year, however, is -epoch-making in favour of the principle of non-extradition of political -criminals, for in 1833 Belgium enacted her celebrated extradition law, -the first of its kind, being the very first Municipal Law which -expressly interdicted the extradition of foreign political criminals. As -Belgium, which had seceded from the Netherlands in 1830 and became -recognised and neutralised by the Powers in 1831, owed her very -existence to revolt, she felt the duty of making it a principle of her -Municipal Law to grant asylum to foreign political fugitives, a -principle which was for the first time put into practice in the treaty -of extradition concluded in 1834 between Belgium and France. The latter, -which to the present day has no municipal extradition law, has -nevertheless henceforth always in her extradition treaties with other -Powers stipulated the principle of non-extradition of political -criminals. And the other Powers followed gradually. Even Russia had to -give way, and since 1867 this principle is to be found in all -extradition treaties of Russia with other Powers, that with Spain of -1888 excepted. It is due to the stern attitude of Great Britain, -Switzerland, Belgium, France, and the United States that the principle -has conquered the world. These countries, in which individual liberty is -the very basis of all political life, and constitutional government a -political dogma of the nation, watched with abhorrence the methods of -government of many other States between 1815 and 1860. These Governments -were more or less absolute and despotic, repressing by force every -endeavour of their subjects to obtain individual liberty and a share in -the government. Thousands of the most worthy citizens and truest -patriots had to leave their country for fear of severe punishment for -political crimes. Great Britain and the other free countries felt in -honour bound not to surrender such exiled patriots to the persecution of -their Governments, but to grant them an asylum. - -[Sidenote: Difficulty concerning the Conception of Political Crime.] - -[p] 334. Although the principle became and is generally[686] recognised -that political criminals shall not be extradited, serious difficulties -exist concerning the conception of "political crime." Such conception is -of great importance, as the extradition of a criminal may depend upon -it. It is unnecessary here to discuss the numerous details of the -controversy. It suffices to state that whereas many writers call such -crime "political" as was committed from a political motive, others call -"political" any crime committed for a political purpose; again, others -recognise such crime only as "political" as was committed from a -political motive and at the same time for a political purpose; and, -thirdly, some writers confine the term "political crime" to certain -offences against the State only, as high treason, _lese-majeste_, and -the like.[687] To the present day all attempts have failed to formulate -a satisfactory conception of the term, and the reason of the thing will, -I believe, for ever exclude the possibility of finding a satisfactory -conception and definition.[688] The difficulty is caused through the -so-called "relative political crimes" or _delits complexes_--namely, -those complex cases in which the political offence comprises at the same -time[689] an ordinary crime, such as murder, arson, theft, and the like. -Some writers deny categorically that such complex crimes are political; -but this opinion is wrong and dangerous, since indeed many honourable -political criminals would have to be extradited in consequence thereof. -On the other hand, it cannot be denied that many cases of complex -crimes, although the deed may have been committed from a political -motive or for a political purpose, are such as ought not to be -considered political. Such cases have roused the indignation of the -whole civilised world, and have indeed endangered the very value of the -principle of non-extradition of political criminals. Three practical -attempts have therefore been made to deal with such complex crimes -without violating this principle. - -[Footnote 686: See, however, below, [p] 340, concerning the reactionary -movement in the matter.] - -[Footnote 687: See Mettgenberg, "Die Attentatsklausel im deutschen -Auslieferungsrecht" (1906), pp. 61-76, where a survey of the different -opinions is given.] - -[Footnote 688: According to Stephen, "History of the Criminal Law in -England," vol. II. p. 71, political crimes are such as are identical to -and form a part of political disturbances.] - -[Footnote 689: The problem came twice before the English courts; see _Ex -parte_ Castione, L.R. [1891] 1 Q.B. 149, and _In re_ Meunier, L.R. -[1894] 2 Q.B. 415. In the case of Castione, a Swiss who had taken part -in a revolutionary movement in the canton of Ticino and had incidentally -shot a member of the Government, the Court refused extradition because -the crime was considered to be political. On the other hand, in the case -of Meunier, a French anarchist who was prosecuted for having caused two -explosions in France, one of which resulted in the death of two -individuals, the extradition was granted because the crime was not -considered to be political.] - -[Sidenote: The so-called Belgian _Attentat_ Clause.] - -[p] 335. The first attempt was the enactment of the so-called _attentat_ -clause by Belgium in 1856,[690] following the case of Jacquin in 1854. A -French manufacturer named Jules Jacquin, domiciled in Belgium, and a -foreman of his factory named Celestin Jacquin, who was also a Frenchman, -tried to cause an explosion on the railway line between Lille and Calais -with the intention of murdering the Emperor Napoleon III. France -requested the extradition of the two criminals, but the Belgian Court of -Appeal had to refuse the surrender on account of the Belgian extradition -law interdicting the surrender of political criminals. To provide for -such cases in the future, Belgium enacted in 1856 a law amending her -extradition law and stipulating that murder of the head of a foreign -Government or of a member of his family should not be considered a -political crime. Gradually all European States, with the exception of -England and Switzerland, have adopted that _attentat_ clause, and a -great many Continental writers urge its adoption by the whole of the -civilised world.[691] - -[Footnote 690: See details in Martitz, op. cit. II. p. 372.] - -[Footnote 691: See Mettgenberg, op. cit. pp. 109-114.] - -[Sidenote: The Russian Project of 1881.] - -[p] 336. Another attempt to deal with complex crimes without detriment to -the principle of non-extradition of political criminals was made by -Russia in 1881. Influenced by the murder of the Emperor Alexander II. -in that year, Russia invited the Powers to hold an International -Conference at Brussels for the consideration of the proposal that -thenceforth no murder or attempt to murder ought to be considered as a -political crime. But the Conference did not take place, since Great -Britain as well as France declined to take part in it.[692] Thus the -development of things had come to a standstill, many States having -adopted, others declining to adopt, the Belgian clause, and the Russian -proposal having fallen through. - -[Footnote 692: See details in Martitz, op. cit. II. p. 479.] - -[Sidenote: The Swiss Solution of the Problem in 1892.] - -[p] 337. Eleven years later, in 1892, Switzerland attempted a solution of -the problem on a new basis. In that year Switzerland enacted an -extradition law whose article 10 recognises the non-extradition of -political criminals, but at the same time lays down the rule that -political criminals shall nevertheless be surrendered in case the chief -feature of the offence wears more the aspect of an ordinary than of a -political crime, and that the decision concerning the extraditability of -such criminals rests with the "Bundesgericht," the highest Swiss Court -of Justice. This Swiss rule contains a better solution of the problem -than the Belgian _attentat_ clause in so far as it allows the -circumstances of the special case to be taken into consideration. And -the fact that the decision is taken out of the hands of the Government -and transferred to the highest Court of the country, denotes likewise a -remarkable progress.[693] For the Government cannot now be blamed -whether extradition is granted or refused, the decision of an -independent Court of Justice being a certain guarantee that an impartial -view of the circumstances of the case has been taken.[694] - -[Footnote 693: See Langhard, "Das Schweizerische Auslieferungsrecht" -(1910), where all the cases are discussed which have come before the -Court since 1892.] - -[Footnote 694: It ought to be mentioned that the Institute of -International Law at its meeting at Geneva in 1892 (see Annuaire, XII. -p. 182) adopted four rules concerning extradition of political -criminals, but I do not think that on the whole these rules give much -satisfaction.] - -[Sidenote: Rationale for the Principle of Non-extradition of Political -Criminals.] - -[p] 338. The numerous attempts[695] against the lives of heads of States -and the frequency of anarchistic crimes have shaken the value of the -principle of non-extradition of political criminals in the opinion of -the civilised world as illustrated by the three practical attempts -described above to meet certain difficulties. It is, consequently, no -wonder that some writers[696] plead openly and directly for the -abolition of this principle, maintaining that it was only the product of -abnormal times and circumstances such as were in existence during the -first half of the nineteenth century, and that with their disappearance -the principle is likely to do more harm than good. And indeed it cannot -be denied that the application of the principle in favour of some -criminals, such as anarchistic[697] murderers and bomb-throwers, could -only be called an abuse. But the question is whether, apart from such -exceptional cases, the principle itself is still to be considered as -justified or not. - -[Footnote 695: Not less than nineteen of these attempts have been -successful since 1850, as the following formidable list shows:-- - - Charles II., Duke of Parma, murdered on March 26, 1854. - Prince Danilo of Montenegro, " August 14, 1860. - President Abraham Lincoln, U.S.A., " April 14, 1865. - Prince Michael of Servia, " June 10, 1868. - President Balta of Peru, " July, 1872. - President Moreno of Ecuador, " August 6, 1872. - Sultan Abdul Assis of Turkey, " June 4, 1876. - Emperor Alexander II. of Russia, " March 13, 1881. - President Garfield, U.S.A., " July 2, 1881. - President Carnot of France, " June 24, 1894. - Shah Nazr-e-Din of Persia, " May 1, 1896. - Empress Elizabeth of Austria, " September 10, 1898. - King Humbert I. of Italy, " July 30, 1900. - President McKinley, U.S.A., " September 6, 1901. - King Alexander I. of Servia and - Queen Draga, " June 10, 1903. - King Carlos I. of Portugal and - the Crown Prince, " February 15, 1908. - President Caceres of San Domingo, " November 19, 1911.] - -[Footnote 696: See, for instance, Rivier, I. p. 354, and Scott in A.J. -III. (1909), p. 459.] - -[Footnote 697: "... the party with whom the accused is identified ... -namely the party of anarchy, is the enemy of all governments. Their -efforts are directed primarily against the general body of citizens. -They may, secondarily and incidentally, commit offences against some -particular government, but anarchist offences are mainly directed -against private citizens." (From the judgment of Cave, J. _In re_ -Meunier, L.R. [1894] 2 Q.B. 419.)--See also Diena in R.G. II. (1905), -pp. 306-336.] - -Without doubt the answer must be in the affirmative. I readily admit -that every political crime is by no means an honourable deed, which as -such deserves protection. Still, political crimes are committed by the -best of patriots, and, what is of more weight, they are in many cases a -consequence of oppression on the part of the respective Governments. -They are comparatively infrequent in free countries, where there is -individual liberty, where the nation governs itself, and where, -therefore, there are plenty of legal ways to bring grievances before the -authorities. A free country can never agree to surrender foreigners to -their prosecuting home State for deeds done in the interest of the same -freedom and liberty which the subjects of such free country enjoy. For -individual liberty and self-government of nations are demanded by modern -civilisation, and their gradual realisation over the whole globe is -conducive to the welfare of the human race. - -Political crimes may certainly be committed in the interest of reaction -as well as in the interest of progress, and reactionary political -criminals may have occasion to ask for asylum as well as progressive -political criminals. The principle of non-extradition of political -criminals indeed extends its protection over the former too, and this is -the very point where the value of the principle reveals itself. For no -State has a right to interfere with the internal affairs of another -State, and, if a State were to surrender reactionary political criminals -but not progressive ones, the prosecuting State of the latter could -indeed complain and consider the refusal of extradition an unfriendly -act. If, however, non-extradition is made a general principle which -finds its application in favour of political criminals of every kind, no -State can complain if extradition is refused. Have not reactionary -States the same faculty of refusing the extradition of reactionary -political criminals as free States have of refusing the extradition of -progressive political criminals? - -Now, many writers agree upon this point, but maintain that such -arguments meet the so-called purely political crimes only, and not the -relative or complex political crimes, and they contend, therefore, that -the principle of non-extradition ought to be restricted to the former -crimes only. But to this I cannot assent. No revolt happens without such -complex crimes taking place, and the individuals who commit them may -indeed deserve the same protection as other political criminals. And, -further, although I can under no circumstances approve of murder, can -never sympathise with a murderer, and can never pardon his crime, it may -well be the case that the murdered official or head of a State has by -inhuman cruelty and oppression himself whetted the knife which cut short -his span of life. On the other hand, the mere fact that a crime was -committed for a political purpose may well be without any importance in -comparison with its detestability and heinousness. Attempts on heads of -States, such, for example, as the murders of Presidents Lincoln and -Carnot or of Alexander II. of Russia and Humbert of Italy, are as a -rule, and all anarchistic crimes are without any exception, crimes of -that kind. Criminals who commit such crimes ought under no circumstances -to find protection and asylum, but ought to be surrendered for the -purpose of receiving their just and appropriate punishment. - -[Sidenote: How to avoid Misapplication of the Principle of -Non-extradition of Political Criminals.] - -[p] 339. The question, however, is how to sift the chaff from the wheat, -how to distinguish between such political criminals as deserve an asylum -and such as do not. The difficulties are great and partly insuperable as -long as we do not succeed in finding a satisfactory conception of the -term "political crime." But such difficulties are only partly, not -wholly, insuperable. The step taken by the Swiss extradition law of 1892 -is so far in advance as to meet a great many of the difficulties. There -is no doubt that the adoption of the Swiss rule by all the other -civilised States would improve matters more than the universal adoption -of the so-called Belgian _attentat_ clause. The fact that according to -Swiss law each case of complex political crime is unravelled and obtains -the verdict of an independent Court according to the very circumstances, -conditions, and requirements under which it occurred, is of the greatest -value. It enables every case to be met in such a way as it deserves, -without compromising the Government, and without sacrificing the -principle of non-extradition of political criminals as a valuable rule. -I cannot support the charge made by some writers[698] that the Swiss law -is inadequate because it does not give criteria for the guidance of the -Court in deciding whether or no extradition for complex crimes should be -granted. In my opinion, the very absence of such criteria proves the -superiority of the Swiss clause to the Belgian _attentat_ clause. On the -one hand, the latter is quite insufficient, for it restricts its -stipulations to murder of heads of States and members of their families -only. But I see no reason why individuals guilty of any murder--as -provided by the Russian proposal--or who have committed other crimes, -such as arson, theft, and the like, should not be surrendered in case -the political motive or purpose of the crime is of no importance in -comparison with the crime itself. On the other hand, the Belgian clause -goes too far, since exceptional cases of murder of heads of States from -political motives or for political purposes might occur which do not -deserve extradition. The Swiss clause, however, with its absence of -fixed distinctions between such complex crimes as are extraditable, and -such as are not, permits the consideration of the circumstances, -conditions, and requirements under which a complex crime was committed. -It is true that the responsibility of the Court of Justice which has to -decide whether such a complex crime is extraditable is great. But it is -to be taken for granted that such Court will give its decision with -impartiality, fairness, and justice. And it need not be feared that such -Court will grant asylum to a murderer, incendiary, and the like, unless -convinced that the deed was really political. - -[Footnote 698: See, for instance, Martitz, op. cit. II. pp. 533-539.] - -[Sidenote: Reactionary Extradition Treaties.] - -[p] 340. Be that as it may, the present condition of matters is a danger -to the very principle of non-extradition of political criminals. Under -the influence of the excitement caused by numerous criminal attempts in -the last quarter of the nineteenth century, a few treaties have already -been concluded which make a wide breach in this principle. It is Russia -which is leading the reaction. This Power in 1885 concluded treaties -with Prussia and Bavaria which stipulate the extradition of all -individuals who have made an attack on the life, the body, or the -honour[699] of a monarch, or of a member of his family, or who have -committed any kind of murder or attempt to murder. And the extradition -treaty between Russia and Spain of 1888 goes even further and abandons -the principle of non-extradition of political criminals altogether. -Fortunately, the endeavour of Russia to abolish this principle -altogether has not succeeded. In her extradition treaty with Great -Britain of 1886 she had to adopt it without any restriction, and in her -extradition treaties with Portugal of 1887, with Luxemburg of 1892, and -with the United States and Holland of 1893, she had to adopt it with a -restrictive clause similar to the Belgian _attentat_ clause. - -[Footnote 699: Thus, even for _lese majeste_ extradition must be -granted.] - - - - -PART III - -ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS - - - - -CHAPTER I - -HEADS OF STATES, AND FOREIGN OFFICES - - -I - -POSITION OF HEADS OF STATES ACCORDING TO INTERNATIONAL LAW - - Hall, [p] 97--Phillimore, II. [p][p] 101 and 102--Bluntschli, [p][p] - 115-125--Holtzendorff in Holtzendorff, II. pp. 77-81--Ullmann, [p] - 40--Rivier, I. [p] 32--Nys, II. pp. 325-329--Fiore, II. No. - 1097--Bonfils, No. 632--Merignhac, II. pp. 294-305--Bynkershoek, - "De foro legatorum" (1721), c. III. [p] 13. - -[Sidenote: Necessity of a Head for every State.] - -[p] 341. As a State is an abstraction from the fact that a multitude of -individuals live in a country under a Sovereign Government, every State -must have a head as its highest organ, which represents it within and -without its borders in the totality of its relations. Such head is the -monarch in a monarchy and a president or a body of individuals, as the -Bundesrath of Switzerland, in a republic. The Law of Nations prescribes -no rules as regards the kind of head a State may have. Every State is, -naturally, independent regarding this point, possessing the faculty of -adopting any Constitution it likes and of changing such Constitution -according to its discretion. Some kind or other of a head of the State -is, however, necessary according to International Law, as without a head -there is no State in existence, but anarchy. - -[Sidenote: Recognition of Heads of States.] - -[p] 342. In case of the accession of a new head of a State, other States -are as a rule notified. The latter usually recognise the new head -through some formal act, such as a congratulation. But neither such -notification nor recognition is strictly necessary according to -International Law, as an individual becomes head of a State, not through -the recognition of other States, but through Municipal Law. Such -notification and recognition are, however, of legal importance. For -through notification a State declares that the individual concerned is -its highest organ, and has by Municipal Law the power to represent the -State in the totality of its international relations. And through -recognition the other States declare that they are ready to negotiate -with such individual as the highest organ of his State. But recognition -of a new head by other States is in every respect a matter of -discretion. Neither has a State the right to demand from other States -recognition of its new head, nor has any State a right to refuse such -recognition. Thus Russia, Austria, and Prussia refused until 1848 -recognition to Isabella, Queen of Spain, who had come to the throne as -an infant in 1833. But, practically, in the long run recognition cannot -be withheld, for without it international intercourse is impossible, and -States with self-respect will exercise retorsion if recognition is -refused to the heads they have chosen. Thus, when, after the unification -of Italy in 1861, Mecklenburg and Bavaria refused the recognition of -Victor Emanuel as King of Italy, Count Cavour revoked the _exequatur_ of -the consuls of these States in Italy. - -But it must be emphasised that recognition of a new head of a State by -no means implies the recognition of such head as the legitimate head of -the State in question. Recognition is in fact nothing else than the -declaration of other States that they are ready to deal with a certain -individual as the highest organ of the particular State, and the -question remains totally undecided whether such individual is or is not -to be considered the legitimate head of that State. - -[Sidenote: Competence of Heads of States.] - -[p] 343. The head of a State, as its chief organ and representative in -the totality of its international relations, acts for his State in the -latter's international intercourse, with the consequence that all his -legally relevant international acts are considered acts of his State. -His competence to perform such acts is termed _jus repraesentationis -omnimodae_. It comprises in substance chiefly: reception and mission of -diplomatic agents and consuls, conclusion of international treaties, -declaration of war, and conclusion of peace. But it is a question of the -special case, how far this competence is independent of Municipal Law. -For heads of States exercise this competence for their States and as the -latter's representatives, and not in their own right. If a head of a -State should, for instance, ratify a treaty without the necessary -approval of his Parliament, he would go beyond his powers, and therefore -such treaty would not be binding upon his State.[700] - -[Footnote 700: See below, [p] 497.] - -On the other hand, this competence is certainly independent of the -question whether a head of a State is the legitimate head or a usurper. -The mere fact that an individual is for the time being the head of a -State makes him competent to act as such head, and his State is legally -bound by his acts. It may, however, be difficult to decide whether a -certain individual is or is not the head of a State, for after a -revolution some time always elapses before matters are settled. - -[Sidenote: Heads of States Objects of the Law of Nations.] - -[p] 344. Heads of States are never subjects[701] of the Law of Nations. -The position a head of a State has according to International Law is due -to him, not as an individual, but as the head of his State. His position -is derived from international rights and duties of his State, and not -from international rights of his own. Consequently, all rights possessed -by heads of States abroad are not international rights, but rights -which must be granted to them by the Municipal Law of the foreign State -on whose territory such foreign heads of States are temporarily staying, -and such rights must be granted in compliance with international rights -of the home States of the respective heads. Thus, heads of States are -not subjects but objects of International Law, and in this regard are -like any other individual. - -[Footnote 701: But Heffter ([p] 48) maintains the contrary, and Phillimore -(II. [p] 100) designates monarchs _mediately and derivatively_ as subjects -of International Law. The matter is treated in detail above, [p][p] 13 and -288-290; see also below, [p] 384.] - -[Sidenote: Honours and Privileges of Heads of States.] - -[p] 345. All honours and privileges of heads of States due to them by -foreign States are derived from the fact that dignity is a recognised -quality of States as members of the Family of Nations and International -Persons.[702] Concerning such honours and privileges, International Law -distinguishes between monarchs and heads of republics. This distinction -is the necessary outcome of the fact that the position of monarchs -according to the Municipal Law of monarchies is totally different from -the position of heads of republics according to the Municipal Law of the -republics. For monarchs are sovereigns, but heads of republics are not. - -[Footnote 702: See above, [p] 121.] - - -II - -MONARCHS - - Vattel, I. [p][p] 28-45; IV. [p] 108--Hall, [p] 49--Lawrence, [p] - 105--Phillimore, II. [p][p] 108-113--Taylor, [p] 129--Moore, II. [p] - 250--Bluntschli, [p][p] 126-153--Heffter, [p][p] 48-57--Ullmann, [p][p] - 41-42--Rivier, I. [p] 33--Nys, II. pp. 280-296--Calvo, III. [p][p] - 1454-1479--Fiore, II. Nos. 1098-1102--Bonfils, Nos. - 633-647--Merignhac, II. pp. 94-105--Pradier-Fodere, III. Nos. - 1564-1591. - -[Sidenote: Sovereignty of Monarchs.] - -[p] 346. In every monarchy the monarch appears as the representative of -the sovereignty of the State and thereby becomes a Sovereign himself, a -fact which is recognised by International Law. And the difference -between the Municipal Laws of the different States regarding this point -matters in no way. Consequently, International Law recognises all -monarchs as equally sovereign, although the difference between the -constitutional positions of monarchs is enormous, if looked upon in the -light of the rules laid down by the Constitutional Laws of the different -States. Thus, the Emperor of Russia, whose powers are very wide, and the -King of England, who is sovereign in Parliament only, and whose powers -are therefore very much restricted, are indifferently sovereign -according to International Law. - -[Sidenote: Consideration due to Monarchs at home.] - -[p] 347. Not much need be said as regards the consideration due to a -monarch from other States when within the boundaries of his own State. -Foreign States have to give him his usual and recognised predicates[703] -in all official communications. Every monarch must be treated as a peer -of other monarchs, whatever difference in title and actual power there -may be between them. - -[Footnote 703: Details as regards the predicates of monarchs are given -above, [p] 119.] - -[Sidenote: Consideration due to Monarchs abroad.] - -[p] 348. As regards, however, the consideration due to a monarch abroad -from the State on whose territory he is staying in time of peace and -with the consent and the knowledge of the Government, details must -necessarily be given. The consideration due to him consists in honours, -inviolability, and exterritoriality. - -(1) In consequence of his character of Sovereign, his home State has the -right to demand that certain ceremonial honours be rendered to him, the -members of his family, and the members of his retinue. He must be -addressed by his usual predicates. Military salutes must be paid to him, -and the like. - -(2) As his person is sacrosanct, his home State has a right to insist -that he be afforded special protection as regards personal safety, the -maintenance of personal dignity, and the unrestrained intercourse with -his Government at home. Every offence against him must be visited with -specially severe penalties. On the other hand, he must be exempt from -every kind of criminal jurisdiction. The wife of a Sovereign must be -afforded the same protection and exemption. - -(3) He must be granted so-called exterritoriality conformably with the -principle: "_Par in parem non habet imperium_," according to which one -Sovereign cannot have any power over another Sovereign. He must, -therefore, in every point be exempt from taxation, rating, and every -fiscal regulation, and likewise from civil jurisdiction, except when he -himself is the plaintiff.[704] The house where he has taken his -residence must enjoy the same exterritoriality as the official residence -of an ambassador; no policeman or other official must be allowed to -enter it without his permission. Even if a criminal takes refuge in such -residence, the police must be prevented from entering it, although, if -the criminal's surrender is deliberately refused, the Government may -request the recalcitrant Sovereign to leave the country and then arrest -the criminal. If a foreign Sovereign has real property in a country, -such property is under the latter's jurisdiction. But as soon as such -Sovereign takes his residence on the property, it must become -exterritorial for the time being. Further, a Sovereign staying in a -foreign country must be allowed to perform all his own governmental acts -and functions, except when his country is at war with a third State and -the State in which he is staying remains neutral. And, lastly, a -Sovereign must be allowed, within the same limits as at home, to -exercise civil jurisdiction over the members of his retinue. In former -times even criminal jurisdiction over the members of his suite was very -often claimed and conceded, but this is now antiquated.[705] The wife -of a Sovereign must likewise be granted exterritoriality, but not other -members of a Sovereign's family.[706] - -[Footnote 704: See above, [p] 115, and the cases there quoted; see also -Phillimore, II. [p] 113A, and Loening, "Die Gerichtsbarkeit ueber fremde -Staaten und Souveraene" (1903).] - -[Footnote 705: A celebrated case happened on November 10, 1656, in -France, when Christina, Queen of Sweden, although she had already -abdicated, sentenced her grand equerry, Monaldeschi, to death, and had -him executed by her bodyguard.] - -[Footnote 706: See Rivier, I. p. 421, and Bluntschli, [p] 154; but, -according to Bluntschli, exterritoriality need not in strict law be -granted even to the wife of a Sovereign.] - -However, exterritoriality is in the case of a foreign Sovereign, as in -any other case, a fiction only, which is kept up for certain purposes -within certain limits. Should a Sovereign during his stay within a -foreign State abuse his privileges, such State is not obliged to bear -such abuse tacitly and quietly, but can request him to leave the -country. And when a foreign Sovereign commits acts of violence or such -acts as endanger the internal or external safety of the State, the -latter can put him under restraint to prevent further acts of the same -kind, but must at the same time bring him as speedily as possible to the -frontier. - -[Sidenote: The Retinue of Monarchs abroad.] - -[p] 349. The position of individuals who accompany a monarch during his -stay abroad is a matter of some dispute. Several publicists maintain -that the home State can claim the privilege of exterritoriality as well -for members of his suite as for the Sovereign himself, but others deny -this.[707] I believe that the opinion of the former is correct, since I -cannot see any reason why a Sovereign abroad should as regards the -members of his suite be in an inferior position to a diplomatic -envoy.[708] - -[Footnote 707: See Bluntschli, [p] 154, and Hall, [p] 49, in -contradistinction to Martens, I. [p] 83.] - -[Footnote 708: See below, [p][p] 401-405.] - -[Sidenote: Monarchs travelling _incognito_.] - -[p] 350. Hitherto only the case where a monarch is staying in a foreign -country with the official knowledge of the latter's Government has been -discussed. Such knowledge may be held in the case of a monarch -travelling _incognito_, and he enjoys then the same privileges as if -travelling not _incognito_. The only difference is that many ceremonial -observances, which are due to a monarch, are not rendered to him when -travelling _incognito_. But the case may happen that a monarch is -travelling in a foreign country _incognito_ without the latter's -Government having the slightest knowledge thereof. Such monarch cannot -then of course be treated otherwise than as any other foreign -individual; but he can at any time make known his real character and -assume the privileges due to him. Thus the late King William of Holland, -when travelling _incognito_ in Switzerland in 1873, was condemned to a -fine for some slight contravention, but the sentence was not carried -out, as he gave up his _incognito_. - -[Sidenote: Deposed and Abdicated Monarchs.] - -[p] 351. All privileges mentioned must be granted to a monarch only as -long as he is really the head of a State. As soon as he is deposed or -has abdicated, he is no longer a Sovereign. Therefore in 1870 and 1872 -the French Courts permitted, because she was deposed, a civil action -against Queen Isabella of Spain, then living in Paris, for money due to -the plaintiffs. Nothing, of course, prevents the Municipal Law of a -State from granting the same privileges to a foreign deposed or -abdicated monarch as to a foreign Sovereign, but the Law of Nations does -not exact any such courtesy. - -[Sidenote: Regents.] - -[p] 352. All privileges due to a monarch are also due to a Regent, at home -or abroad, whilst he governs on behalf of an infant, or of a King who is -through illness incapable of exercising his powers. And it matters not -whether such Regent is a member of the King's family and a Prince of -royal blood or not. - -[Sidenote: Monarchs in the service or subjects of Foreign Powers.] - -[p] 353. When a monarch accepts any office in a foreign State, when, for -instance, he serves in a foreign army, as the monarchs of the small -German States have formerly frequently done, he submits to such State as -far as the duties of the office are concerned, and his home State -cannot claim any privileges for him that otherwise would be due to him. - -When a monarch is at the same time a subject of another State, -distinction must be made between his acts as a Sovereign, on the one -hand, and his acts as a subject, on the other. For the latter, the State -whose subject he is has jurisdiction over him, but not for the former. -Thus, in 1837, the Duke of Cumberland became King of Hanover, but at the -same time he was by hereditary title an English Peer and therefore an -English subject. And in 1844, in the case _Duke of Brunswick_ v. _King -of Hanover_,[709] the Master of the Rolls held that the King of Hanover -was liable to be sued in the Courts of England in respect of any acts -done by him as an English subject. - -[Footnote 709: 6 Beavan, 1; 2 House of Lords Cases, 1; see also -Phillimore, II. [p] 109.] - - -III - -PRESIDENTS OF REPUBLICS - - Bluntschli, [p] 134--Stoerk in Holtzendorff, II. p. 661--Ullmann, [p] - 42--Rivier, I. [p] 33--Martens, I. [p] 80--Walther, "Das Staatshaupt - in den Republiken" (1907), pp. 190-204. - -[Sidenote: Presidents not Sovereigns.] - -[p] 354. In contradistinction to monarchies, in republics the people -itself, and not a single individual, appears as the representative of -the sovereignty of the State, and accordingly the people styles itself -the Sovereign of the State. And it will be remembered that the head of a -republic may consist of a body of individuals, such as the Bundesrath in -Switzerland. But in case the head is a President, as in France and the -United States of America, such President represents the State, at least -in the totality of its international relations. He is, however, not a -Sovereign, but a citizen and subject of the very State whose head he is -as President. - -[Sidenote: Position of Presidents in general.] - -[p] 355. Consequently, his position at home and abroad cannot be compared -with that of monarchs, and International Law does not empower his home -State to claim for him the same, but only similar, consideration as that -due to a monarch. Neither at home nor abroad, therefore, does a -president of a republic appear as a peer of monarchs. Whereas all -monarchs are in the style of the Court phraseology considered as though -they were members of the same family, and therefore address each other -in letters as "my brother," a president of a republic is usually -addressed in letters from monarchs as "my friend." His home State can -certainly at home and abroad claim such honours for him as are due to -its dignity, but no such honours as must be granted to a Sovereign -monarch. - -[Sidenote: Position of Presidents abroad.] - -[p] 356. As to the position of a president when abroad, writers on the Law -of Nations do not agree. Some[710] maintain that, since a president is -not a Sovereign, his home State can never claim for him the same -privileges as for a monarch, and especially that of exterritoriality. -Others[711] make a distinction whether a president is staying abroad in -his official capacity as head of a State or for his private purposes, -and they maintain that his home State could only in the first case claim -exterritoriality for him. Others[712] again will not admit any -difference in the position of a president abroad from that of a monarch -abroad. How the States themselves think as regards the question of the -exterritoriality of presidents of republics abroad cannot be -ascertained, since to my knowledge no case has hitherto occurred in -practice from which a conclusion may be drawn. But practice seems to -have settled the question of ceremonial honours due to a president -officially abroad; they are such as correspond to the rank of his home -State, and not such as are due to a monarch. As regards -exterritoriality, I believe that future contingencies will create the -practice on the part of the States of granting this privilege to -presidents and members of their suite as in the case of monarchs. I -cannot see that there is any danger in such a grant. And nobody can deny -that, if exterritoriality is not granted, all kinds of friction and even -conflicts might arise. Although not Sovereigns, presidents of republics -fill for the time being a sublime office, and the grant of -exterritoriality to them is a tribute paid to the dignity of the States -they represent. - -[Footnote 710: Ullmann, [p] 42; Rivier, I. p. 423; Stoerk in Holtzendorff, -II. p. 658.] - -[Footnote 711: Martens, I. [p] 80; Bluntschli, [p] 134; Despagnet, No. 254; -Hall, [p] 97.] - -[Footnote 712: Bonfils, No. 632; Nys, II. p. 287; Merignhac, II. p. 298; -Liszt, [p] 13; Walther, op. cit., p. 195.] - - -IV - -FOREIGN OFFICES - - Heffter, [p] 201--Geffcken in Holtzendorff, III. p. 668--Ullmann, [p] - 43--Rivier, I. [p] 34--Bonfils, Nos. 648-651--Nys, II. pp. 330-334. - -[Sidenote: Position of the Secretary for Foreign Affairs.] - -[p] 357. As a rule nowadays no head of a State, be he a monarch or a -president, negotiates directly and in person with a foreign Power, -although this happens occasionally. The necessary negotiations are -regularly conducted by the Foreign Office, an office which since the -Westphalian Peace has been in existence in every civilised State. The -chief of this office, the Secretary for Foreign Affairs, who is a -Cabinet Minister, directs the foreign affairs of the State in the name -of the head and with the latter's consent; he is the middle-man between -the head of the State and other States. And although many a head of a -State directs in fact all the foreign affairs himself, the Secretary for -Foreign Affairs is nevertheless the person through whose hands all -transactions must pass. Now, as regards the position of such Foreign -Secretary at home, it is the Municipal Law of a State which regulates -this. International Law defines his position regarding international -intercourse with other States. He is the chief over all the ambassadors -of the State, over its consuls, and over its other agents in matters -international. It is he who, either in person or through the envoys of -his State, approaches foreign States for the purpose of negotiating -matters international. And again it is he whom foreign States through -their Foreign Secretaries or their envoys approach for the like purpose. -He is present when Ministers hand in their credentials to the head of -the State. All documents of importance regarding foreign matters are -signed by him or his substitute, the Under-Secretary for Foreign -Affairs. It is, therefore, usual to notify the appointment of a new -Foreign Secretary of a State to such foreign States as are represented -within its boundaries by diplomatic envoys; the new Foreign Secretary -himself makes this notification. - - - - -CHAPTER II - -DIPLOMATIC ENVOYS - - -I - -THE INSTITUTION OF LEGATION - - Phillimore, II. [p][p] 143-153--Taylor, [p] 274--Twiss, [p] 199--Geffcken - in Holtzendorff, III. pp. 605-618--Nys, II. pp. 335-339--Rivier, - I. [p] 35--Ullmann, [p] 44--Martens, II. [p] 6--Gentilis, "De - legationibus libri III." (1585)--Wicquefort, "L'Ambassadeur et ses - fonctions" (1680)--Bynkershoek, "De foro legatorum" - (1721)--Garden, "Traite complet de diplomatie" (3 vols. - 1833)--Mirus, "Das europaeische Gesandtschaftsrecht" (2 vols. - 1847)--Charles de Martens, "Le guide diplomatique" (2 vols. 1832; - 6th ed. by Geffcken, 1866)--Montague Bernard, "Four Lectures on - Subjects connected with Diplomacy" (1868), pp. 111-162 (3rd - Lecture)--Alt, "Handbuch des Europaeischen Gesandtschaftsrechts" - (1870)--Pradier-Fodere, "Cours de droit diplomatique" (2 vols. 2nd - ed. 1899)--Krauske, "Die Entwickelung der staendigen Diplomatie," - &c. (1885)--Lehr, "Manuel theorique et pratique des agents - diplomatiques" (1888)--Hill, "History of Diplomacy in the - International Development of Europe," vol. I. (1905), vol. II. - (1906; the other vols. have not yet appeared). - -[Sidenote: Development of Legations.] - -[p] 358. Legation as an institution for the purpose of negotiating between -different States is as old as history, whose records are full of -examples of legations sent and received by the oldest nations. And it is -remarkable that even in antiquity, where no such law as the modern -International Law was known, ambassadors enjoyed everywhere a special -protection and certain privileges, although not by law but by religion, -ambassadors being looked upon as sacrosanct. Yet permanent legations -were unknown till very late in the Middle Ages. The fact that the Popes -had permanent representatives--so-called _apocrisiarii_ or -_responsales_--at the Court of the Frankish Kings and at Constantinople -until the final separation of the Eastern from the Western Church, -ought not to be considered as the first example of permanent legations, -as the task of these papal representatives had nothing to do with -international affairs, but with those of the Church only. It was not -until the thirteenth century that the first permanent legations made -their appearance. The Italian Republics, and Venice in especial, created -the example[713] by keeping representatives stationed at one another's -capitals for the better negotiation of their international affairs. And -in the fifteenth century these Republics began to keep permanent -representatives in Spain, Germany, France, and England. Other States -followed the example. Special treaties were often concluded stipulating -permanent legations, such as in 1520, for instance, between the King of -England and the Emperor of Germany. From the end of the fifteenth -century England, France, Spain, and Germany kept up permanent legations -at one another's Courts. But it was not until the second half of the -seventeenth century that permanent legations became a general -institution, the Powers following the example of France under Louis XIV. -and Richelieu. It ought to be specially mentioned that Grotius[714] -thought permanent legations to be wholly unnecessary. The course of -events has, however, shown that Grotius's views as regards permanent -legations were short-sighted. Nowadays the Family of Nations could not -exist without them, as they are the channel through which nearly the -whole, and certainly all important, official intercourse of the States -flows. - -[Footnote 713: See Nys, "Les Origines du droit international" (1894), p. -295.] - -[Footnote 714: "De jure belli ac pacis," II. c. 28, [p] 3: "Optimo autem -jure rejici possunt, quae nunc in usu sunt, legationes assiduae, quibus -cum non sit opus, docet mos antiquus, cui illae ignoratae."] - -[Sidenote: Diplomacy.] - -[p] 359. The rise of permanent legations created the necessity for a new -class of State officials, the so-called diplomatists; yet it was not -until the end of the eighteenth century that the terms "diplomatist" -and "diplomacy" came into general use. And although the art of diplomacy -is as old as official intercourse between States, such a special class -of officials as are now called diplomatists did not and could not exist -until permanent legations had become a general institution. In this as -in other cases the office has created the class of men necessary for it. -International Law has nothing to do with the education and general -character of these officials. Every State is naturally competent to -create its own rules, if any, as regards these points. Nor has -International Law anything to do with _diplomatic usages_, although -these are more or less of importance, as they may occasionally grow into -customary rules of International Law. But I would notice one of these -usages--namely, that as regards the _language_ which is in use in -diplomatic intercourse. This language was formerly Latin, but through -the political ascendency of France under Louis XIV. it became French. -However, this is a usage of diplomacy only, and not a rule of -International Law.[715] Each State can use its own language in all -official communications to other States, and States which have the same -language regularly do so in their intercourse with each other. But -between States of different tongues and, further, at Conferences and -Congresses, it is convenient to make use of a language which is -generally known. This is nowadays French, but nothing could prevent -diplomatists from dropping French at any moment and adopting another -language instead. - -[Footnote 715: See Mirus, "Das europaeische Gesandtschaftsrecht," I. [p][p] -266-268.] - - -II - -RIGHT OF LEGATION - - Grotius, II. c. 18--Vattel, IV. [p][p] 55-68--Hall, [p] - 98--Phillimore, II. [p][p] 115-139--Taylor, [p][p] 285-288--Twiss, - [p][p] 201-202--Wheaton, [p][p] 206-209--Bluntschli, [p][p] - 159-165--Heffter, [p] 200--Geffcken in Holtzendorff, III. pp - 620-631--Ullmann, [p] 45--Rivier, I. [p] 35--Nys, II. p. - 339--Bonfils, Nos. 658-667--Pradier-Fodere, II. Nos. - 1225-1256--Fiore, II. Nos. 1112-1117--Calvo, III. [p][p] - 1321-1325--Martens, II. [p][p] 7-8. - -[Sidenote: Conception of Right of Legation.] - -[p] 360. Right of legation is the right of a State to send and receive -diplomatic envoys. The right to send such envoys is termed _active_ -right of legation, in contradistinction to the _passive_ right of -legation, as the right to receive such envoys is termed. Some -writers[716] on International Law assert that no right but a mere -competence to send and receive diplomatic envoys exists according to -International Law, maintaining that no State is bound by International -Law to send or receive such envoys. But this is certainly wrong in its -generality. Obviously a State is not bound to send diplomatic envoys or -to receive _permanent_ envoys. But, on the other hand, the very -existence[717] of the Family of Nations makes it necessary for the -members or some of the members to negotiate occasionally on certain -points. Such negotiation would be impossible in case one member could -always and under all circumstances refuse to receive an envoy from the -other members. The duty of every member to listen, under ordinary -circumstances, to a message from another brought by a diplomatic envoy -is, therefore, an outcome of its very membership of the Family of -Nations, and this duty corresponds to the right of every member to send -such envoys. But the exercise of the active right of legation is -discretionary. No State need send diplomatic envoys at all, although -practically all States do at least occasionally send such envoys, and -most States send permanent envoys to many other States. The passive -right of legation is discretionary as regards the reception of -_permanent_ envoys only. - -[Footnote 716: See, for instance, Wheaton, [p] 207; Heilborn, "System," p. -182.] - -[Footnote 717: See above, [p] 141.] - -[Sidenote: What States possess the Right of Legation.] - -[p] 361. Not every State, however, possesses the right of legation. Such -right pertains chiefly to full-Sovereign States,[718] for other States -possess this right under certain conditions only. - -[Footnote 718: It should be emphasised that the Holy See, which is in -some respects treated as though an International Person, can send and -receive envoys, who must in every respect be considered as though they -were diplomatic envoys. That they are actually not diplomatic envoys, -although so treated, becomes apparent from the fact that they are not -agents for international affairs of States, but exclusively for affairs -of the Roman Catholic Church. (See above, [p] 106.)] - -(1) Half-Sovereign States, such as States under the suzerainty or the -protectorate of another State, can as a rule neither send nor receive -diplomatic envoys. Thus, Crete and Egypt are destitute of such right, -and the Powers are represented in these States only by consuls or agents -without diplomatic character. But there may be exceptions to this rule. -Thus, according to the Peace Treaty of Kainardgi of 1774 between Russia -and Turkey, the two half-Sovereign principalities of Moldavia and -Wallachia had the right of sending Charges d'Affaires to foreign Powers. -Thus, further, the late South African Republic, which was a State under -British suzerainty in the opinion of Great Britain, used to keep -permanent diplomatic envoys in several foreign States. - -(2) Part-Sovereign member-States of a Federal State may or may not have -the right of legation besides the Federal State. It is the constitution -of the Federal State which regulates this point. Thus, the member-States -of Switzerland and of the United States of America have no right of -legation, but those of the German Empire certainly have. Bavaria, for -example, sends and receives several diplomatic envoys. - -[Sidenote: Right of Legation by whom exercised.] - -[p] 362. As, according to International Law, a State is represented in its -international relations by its head, it is he who acts in the exercise -of his State's right of legation. But Municipal Law may, just as it -designates the person who is the head of the State, impose certain -conditions and restrictions upon the head as regards the exercise of -such right. And the head himself may, provided that it is sanctioned by -the Municipal Law of his State, delegate[719] the exercise of such right -to any representative he chooses. - -[Footnote 719: See Phillimore, II. [p][p] 126-133, where several -interesting cases of such delegation are discussed.] - -It may, however, in consequence of revolutionary movements, be doubtful -who the real head of a State is, and in such cases it remains in the -discretion of foreign States to make their choice. But it is impossible -for foreign States to receive diplomatic envoys from both claimants to -the headship of the same State, or to send diplomatic envoys to both of -them. And as soon as a State has recognised the head of a State who came -into his position through a revolution, it can no longer keep up -diplomatic relations with the former head. - -It should be mentioned that a revolutionary party which is recognised as -a belligerent Power has nevertheless no right of legation, although -foreign States may negotiate with such party in an informal way through -political agents without diplomatic character, to provide for the -temporal security of the persons and property of their subjects within -the territory under the actual sway of such party. Such revolutionary -party as is recognised as a belligerent Power is in some points only -treated as though it were a subject of International Law; but it is not -a State, and there is no reason why International Law should give it the -right to send and receive diplomatic envoys. - -It should further be mentioned that neither an abdicated nor a deposed -head has a right to send and receive diplomatic envoys.[720] - -[Footnote 720: See Phillimore, II. [p][p] 124-125, where the case of Bishop -Ross, ambassador of Mary Queen of Scots, is discussed.] - - -III - -KINDS AND CLASSES OF DIPLOMATIC ENVOYS - - Vattel, IV. [p][p] 69-75--Phillimore, II. [p][p] 211-224--Twiss, - I. [p][p] 204-209--Moore, IV. [p] 624--Heffter, [p] 208--Geffcken - in Holtzendorff, III. pp. 635-646--Calvo, III. [p][p] - 1326-1336--Bonfils, Nos. 668-676--Pradier-Fodere, III. [p][p] - 1277-1290--Rivier, I. pp. 443-453--Nys, II. pp. 342-352. - -[Sidenote: Envoys Ceremonial and Political.] - -[p] 363. Two different kinds of diplomatic envoys are to be -distinguished--namely, such as are sent for political negotiations and -such as are sent for the purpose of ceremonial function or notification -of changes in the headship. For States very often send special envoys to -one another on occasion of coronations, weddings, funerals, jubilees, -and the like; and it is also usual to send envoys to announce a fresh -accession to the throne. Such envoys ceremonial have the same standing -as envoys political for real State negotiations. Among the envoys -political, again, two kinds are to be distinguished--namely, first, such -as are permanently or temporarily accredited to a State for the purpose -of negotiating with such State, and, second, such as are sent to -represent the sending State at a Congress or Conference. The latter are -not, or need not be, accredited to the State on whose territory the -Congress or Conference takes place, but they are nevertheless diplomatic -envoys and enjoy all the privileges of such envoys as regards -exterritoriality and the like which concern the inviolability and safety -of their persons and the members of their suites. - -[Sidenote: Classes of Diplomatic Envoys.] - -[p] 364. Diplomatic envoys accredited to a State differ in class. These -classes did not exist in the early stages of International Law. But -during the sixteenth century a distinction between two classes of -diplomatic envoys gradually arose, and at about the middle of the -seventeenth century, after permanent legations had come into general -vogue, two such classes became generally recognised--namely, -extraordinary envoys, called Ambassadors, and ordinary envoys, called -Residents; Ambassadors being received with higher honours and taking -precedence of the other envoys. Disputes arose frequently regarding -precedence, and the States tried in vain to avoid them by introducing -during the eighteenth century another class--namely, the so-called -Ministers Plenipotentiary. At last the Powers assembled at the Vienna -Congress came to the conclusion that the matter ought to be settled by -an international understanding, and they agreed, therefore, on March 19, -1815, upon the establishment of three different classes--namely, first, -Ambassadors; second, Ministers Plenipotentiary and Envoys Extraordinary; -third, Charges d'Affaires. And the five Powers assembled at the Congress -of Aix-la-Chapelle in 1818 agreed upon a fourth class--namely, Ministers -Resident, to rank between Ministers Plenipotentiary and Charges -d'Affaires. All the other States either expressly or tacitly accepted -these arrangements, so that nowadays the four classes are an established -order. Although their privileges are materially the same, they differ in -rank and honours, and they must therefore be treated separately. - -[Sidenote: Ambassadors.] - -[p] 365. Ambassadors form the first class. Only States enjoying royal -honours[721] are entitled to send and to receive Ambassadors, as also is -the Holy See, whose first-class envoys are called _Nuncios_, or _Legati -a latere_ or _de latere_. Ambassadors are considered to be personal -representatives of the heads of their States and enjoy for this reason -special honours. Their chief privilege--namely, that of negotiating with -the head of the State personally--has, however, little value nowadays, -as almost all States have to a certain extent constitutional government, -which necessitates that all the important business should go through the -hands of a Foreign Secretary. - -[Footnote 721: See above, [p] 117, No. 1.] - -[Sidenote: Ministers Plenipotentiary and Envoys Extraordinary.] - -[p] 366. The second class, the Ministers Plenipotentiary and Envoys -Extraordinary, to which also belong the Papal Internuncios, are not -considered to be personal representatives of the heads of their States. -Therefore they do not enjoy all the special honours of the Ambassadors, -and have not the privilege of treating with the head of the State -personally. But otherwise there is no difference between these two -classes. - -[Sidenote: Ministers Resident.] - -[p] 367. The third class, the Ministers Resident, enjoy fewer honours and -rank below the Ministers Plenipotentiary. But beyond the fact that -Ministers Resident do not enjoy the title "Excellency," there is no -difference between them and the Ministers Plenipotentiary. - -[Sidenote: Charges d'Affaires.] - -[p] 368. The fourth class, the Charges d'Affaires, differs chiefly in one -point from the first, second, and third class--namely, in so far as its -members are accredited from Foreign Office to Foreign Office, whereas -the members of the other classes are accredited from head of State to -head of State. Charges d'Affaires do not enjoy, therefore, so many -honours as other diplomatic envoys. And it must be specially mentioned -that a distinction ought to be made between a Charge d'Affaires who is -the head of a Legation, and who, therefore, is accredited from Foreign -Office to Foreign Office, and a Charge d'Affaires _ad interim_. The -latter is a member of a Legation whom the head of the Legation delegates -for the purpose of taking his place during absence on leave. Such Charge -d'Affaires _ad interim_, who had better be called a Charge des -Affaires,[722] ranks below the ordinary Charge d'Affaires; he is not -accredited from Foreign Office to Foreign Office, but is simply a -delegate of the absent head of the Legation. - -[Footnote 722: See Rivier, II. pp. 451-452.] - -[Sidenote: The Diplomatic Corps.] - -[p] 369. All the Diplomatic Envoys accredited to the same State form, -according to a diplomatic usage, a body which is styled the "Diplomatic -Corps." The head of this body, the so-called "Doyen," is the Papal -Nuncio, or, in case there is no Nuncio accredited, the oldest -Ambassador, or, failing Ambassadors, the oldest Minister -Plenipotentiary, and so on. As the Diplomatic Corps is not a body -legally constituted, it performs no legal functions, but it is -nevertheless of great importance, as it watches over the privileges and -honours due to diplomatic envoys. - - -IV - -APPOINTMENT OF DIPLOMATIC ENVOYS - - Vattel, IV. [p][p] 76-77--Phillimore, II. [p][p] 227-231--Twiss, - I. [p][p] 212-214--Ullmann, [p] 48--Calvo, III. [p][p] - 1343-1345--Bonfils, Nos. 677-680--Wheaton, [p][p] 217-220--Moore, - IV. [p][p] 632-635. - -[Sidenote: Person and Qualification of the Envoy.] - -[p] 370. International Law has no rules as regards the qualification of -the individuals whom a State can appoint as diplomatic envoys, States -being naturally competent to act according to discretion, although of -course there are many qualifications a diplomatic envoy must possess to -fill his office successfully. The Municipal Laws of many States -comprise, therefore, many details as regards the knowledge and training -which a candidate for a permanent diplomatic post must possess, whereas, -regarding envoys ceremonial even the Municipal Laws have no provisions -at all. The question is sometimes discussed whether females[723] might -be appointed envoys. History relates a few cases of female diplomatists. -Thus, for example, Louis XIV. of France accredited in 1646 Madame de -Guebriant ambassador to the Court of Poland. During the last two -centuries, however, no such case has to my knowledge occurred, although -I doubt not that International Law does not prevent a State from sending -a female as diplomatic envoy. But under the present circumstances many -States would refuse to receive her. - -[Footnote 723: See Mirus, "Das europaeische Gesandtschaftsrecht," I. [p][p] -127-128; Phillimore, II. [p] 134; and Focherini, "Le Signore Ambasciatrici -dei secoli XVII. e XVIII. e loro posizione nel diritto diplomatico" -(1909).] - -[Sidenote: Letter of Credence, Full Powers, Passports.] - -[p] 371. The appointment of an individual as a diplomatic envoy is -announced to the State to which he is accredited in certain official -papers to be handed in by the envoy to the receiving State. _Letter of -Credence_ (_lettre de creance_) is the designation of the document in -which the head of the State accredits a permanent ambassador or minister -to a foreign State. Every such envoy receives a sealed Letter of -Credence and an open copy. As soon as the envoy arrives at his -destination, he sends the copy to the Foreign Office in order to make -his arrival officially known. The sealed original, however, is handed in -personally by the envoy to the head of the State to whom he is -accredited. Charges d'Affaires receive a Letter of Credence too, but as -they are accredited from Foreign Office to Foreign Office, their Letter -of Credence is signed, not by the head of their home State, but by its -Foreign Office. Now a permanent diplomatic envoy needs no other -empowering document in case he is not entrusted with any task outside -the limits of the ordinary business of a permanent legation. But in case -he is entrusted with any such task, as, for instance, if any special -treaty or convention is to be negotiated, he requires a special -empowering document--namely, the so-called _Full Powers_ (_Pleins -Pouvoirs_). They are given in Letters Patent signed by the head of the -State, and they are either limited or unlimited Full Powers, according -to the requirements of the case. Such diplomatic envoys as are sent, -not to represent their home State permanently, but on an extraordinary -mission such as representation at a Congress, negotiation of a special -treaty, and other transactions, receive full Powers only, and no Letter -of Credence. Every permanent or other diplomatic envoy is also furnished -with so-called _Instructions_ for the guidance of his conduct as regards -the objects of his mission. But such Instructions are a matter between -the Envoy and his home State exclusively, and they have therefore, -although they may otherwise be very important, no importance for -International Law. Every permanent diplomatic envoy receives, lastly, -_Passports_ for himself and his suite specially made out by the Foreign -Office. These Passports the envoy after his arrival deposits at the -Foreign Office of the State to which he is accredited, where they remain -until he himself asks for them because he desires to leave his post, or -until they are returned to him on his dismissal. - -[Sidenote: Combined Legations.] - -[p] 372. As a rule, a State appoints different individuals as permanent -diplomatic envoys to different States, but sometimes a State appoints -the same individual as permanent diplomatic envoy to several States. As -a rule, further, a diplomatic envoy represents one State only. But -occasionally several States appoint the same individual as their envoy, -so that one envoy represents several States. - -[Sidenote: Appointment of several Envoys.] - -[p] 373. In former times States used frequently[724] to appoint more than -one permanent diplomatic envoy as their representative in a foreign -State. Although this would hardly occur nowadays, there is no rule -against such a possibility. And even now it happens frequently that -States appoint several envoys for the purpose of representing them at -Congresses and Conferences. In such cases one of the several envoys is -appointed senior, to whom the others are subordinate. - -[Footnote 724: See Mirus, op. cit. I. [p][p] 117-119.] - - -V - -RECEPTION OF DIPLOMATIC ENVOYS - - Vattel, IV. [p][p] 65-67--Hall, [p] 98--Phillimore, II. [p][p] - 133-139--Twiss, I. [p][p] 202-203--Taylor, [p][p] 285-290--Moore, - IV. [p][p] 635, 637-638--Martens, II. [p] 8--Calvo, III. [p][p] - 1353-1356--Pradier-Fodere, III. [p][p] 1253-1260--Fiore, II. Nos. - 1118-1120--Rivier, I. pp. 455-457. - -[Sidenote: Duty to receive Diplomatic Envoys.] - -[p] 374. Every member of the Family of Nations that possesses the passive -right of legation is under ordinary circumstances bound to receive -diplomatic envoys accredited to itself from other States for the purpose -of negotiation. But the duty extends neither to the reception of -permanent envoys nor to the reception of temporary envoys under all -circumstances. - -(1) As regards permanent envoys, it is a generally recognised fact that -a State is as little bound to receive them as it is to send them. -Practically, however, every full-Sovereign State which desires its voice -to be heard among the States receives and sends permanent envoys, as -without such it would, under present circumstances, be impossible for a -State to have any influence whatever in international affairs. It is for -this reason that Switzerland, which in former times abstained entirely -from sending permanent envoys, has abandoned her former practice and -nowadays sends and receives several. The insignificant Principality of -Lichtenstein is, as far as I know, the only full-Sovereign State which -neither sends nor receives one single permanent legation. - -But a State may receive a permanent legation from one State and refuse -to do so from another. Thus the Protestant States never _received_ a -permanent legation from the Popes, even when the latter were heads of a -State, and they still observe this rule, although one or another of -them, such as Prussia for example, keeps a permanent legation at the -Vatican. - -(2) As regards temporary envoys, it is likewise a generally recognised -fact among those writers who assert the duty of a State to receive -under ordinary circumstances temporary envoys that there are exceptions -to that rule. Thus, for example, a State which knows beforehand the -object of a mission and does not wish to negotiate thereon can refuse to -receive the mission. Thus, further, a belligerent can refuse[725] to -receive a legation from the other belligerent, as war involves the -rupture of all peaceable relations. - -[Footnote 725: But this is not generally recognised. See Vattel, IV. [p] -67; Phillimore, II. [p] 138; and Pradier-Fodere, III. No. 1255.] - -[Sidenote: Refusal to receive a certain Individual.] - -[p] 375. But the refusal to receive an envoy must not be confounded with -the refusal to receive a certain individual as envoy. A State may be -ready to receive a permanent or temporary envoy, but may object to the -individual selected for that purpose. International Law gives no right -to a State to insist upon the reception of an individual appointed by it -as diplomatic envoy. Every State can refuse to receive as envoy a person -objectionable to itself. And a State refusing an individual envoy is -neither compelled to specify what kind of objection it has, nor to -justify its objection. Thus, for example, most States refuse to receive -one of their own subjects as an envoy from a foreign State.[726] Thus, -again, the King of Hanover refused in 1847 to receive a minister -appointed by Prussia, because the individual was of the Roman Catholic -faith. Italy refused in 1885 to receive Mr. Keiley as ambassador of the -United States of America because he had in 1871 protested against the -annexation of the Papal States. And when the United States sent the -same gentleman as ambassador to Austria, the latter refused him -reception on the ground that his wife was said to be a Jewess. Although, -as is apparent from these examples, no State has a right to insist upon -the reception of a certain individual as envoy, in practice States are -often offended when reception is refused. Thus, in 1832 England did not -cancel for three years the appointment of Sir Stratford Canning as -ambassador to Russia, although the latter refused reception, and the -post was practically vacant. In 1885, when, as above mentioned, Austria -refused reception to Mr. Keiley as ambassador of the United States, the -latter did not appoint another, although Mr. Keiley resigned, and the -legation was for several years left to the care of a Charge -d'Affaires.[727] To avoid such conflicts it is a good practice of many -States never to appoint an individual as envoy without having -ascertained beforehand whether the individual would be _persona grata_. -And it is a customary rule of International Law that a State which does -not object to the appointment of a certain individual, when its opinion -has been asked beforehand, is bound to receive such individual.[728] - -[Footnote 726: In case a State receives one of its own subjects as -diplomatic envoy of a foreign State, it has to grant him all the -privileges of such envoys, including exterritoriality. Thus in the case -of Macartney _v._ Garbutt and others (1890, L.R. 24 Q.B. 368) it was -decided that a British subject accredited to Great Britain by the -Chinese Government as a Secretary of its embassy and received by Great -Britain in that capacity without an express condition that he should -remain subject to British jurisdiction, was exempt from British -jurisdiction. See, however, article 15 of the Reglement sur les -Immunites Diplomatiques, adopted in 1895 by the Institute of -International Law (see Annuaire, XIV. p. 244), which denies to such an -individual exemption from jurisdiction. See also Phillimore, II. [p] 135, -and Twiss, I. [p] 203.] - -[Footnote 727: See Moore, IV. [p] 638, p. 480.] - -[Footnote 728: The question is of interest whether the privileges due to -diplomatists must be granted on his journey home to an individual to -whom reception as an envoy is refused. I think the question ought to be -answered in the affirmative; see, however, Moore, IV. [p] 666, p. 668.] - -[Sidenote: Mode and Solemnity of Reception.] - -[p] 376. In case a State does not object to the reception of a person as -diplomatic envoy accredited to itself, his actual reception takes place -as soon as he has arrived at the place of his designation. But the mode -of reception differs according to the class to which the envoy belongs. -If he be one of the first, second, or third class, it is the duty of the -head of the State to receive him solemnly in a so-called public audience -with all the usual ceremonies. For that purpose the envoy sends a copy -of his credentials to the Foreign Office, which arranges a special -audience with the head of the State for the envoy, when he delivers in -person his sealed credentials.[729] If the envoy be a Charge d'Affaires -only, he is received in audience by the Secretary of Foreign Affairs, to -whom he hands his credentials. Through the formal reception the envoy -becomes officially recognised and can officially commence to exercise -his functions. But such of his privileges as exterritoriality and the -like, which concern the safety and inviolability of his person, must be -granted even before his official reception, as his character as -diplomatic envoy is considered to date, not from the time of his -official reception, but from the time when his credentials were handed -to him on leaving his home State, his passports furnishing sufficient -proof of his diplomatic character. - -[Footnote 729: Details concerning reception of envoys are given by -Twiss, I. [p] 215, and Rivier, I. p. 467.] - -[Sidenote: Reception of Envoys to Congresses and Conferences.] - -[p] 377. It must be specially observed that all these details regarding -the reception of diplomatic envoys accredited to a State do not apply to -the reception of envoys sent to represent the several States at a -Congress or Conference. As such envoys are not accredited to the State -on whose territory the Congress or Conference takes place, such State -has no competence to refuse the reception of the appointed envoys, and -no formal and official reception of the latter by the head of the State -need take place. The appointing States merely notify the appointment of -their envoys to the Foreign Office of the State on whose territory the -transactions take place, the envoys call upon the Foreign Secretary -after their arrival to introduce themselves, and they are courteously -received by him. They do not, however, hand in to him their Full Powers, -but reserve them for the first meeting of the Congress or Conference, -where they produce them in exchange with one another. - - -VI - -FUNCTIONS OF DIPLOMATIC ENVOYS - - Rivier, I. [p] 37--Ullmann, [p] 49--Bonfils, Nos. - 681-683--Pradier-Fodere, III. [p][p] 1346-1376. - -[Sidenote: On Diplomatic Functions in general.] - -[p] 378. A distinction must be made between functions of permanent envoys -and of envoys for temporary purposes. The functions of the latter, who -are either envoys ceremonial or such envoys political as are only -temporarily accredited for the purpose of some definite negotiations or -as representatives at Congresses and Conferences, are clearly -demonstrated by the very purpose of their appointment. But the functions -of the permanent envoys demand a closer consideration. These regular -functions may be grouped together under the heads of negotiation, -observation, and protection. But besides these regular functions a -diplomatic envoy may be charged with other and more miscellaneous -functions. - -[Sidenote: Negotiation.] - -[p] 379. A permanent ambassador or other envoy represents his home State -in the totality of its international relations not only with the State -to which he is accredited, but also with other States. He is the -mouthpiece of the head of his home State and its Foreign Secretary as -regards communications to be made to the State to which he is -accredited. He likewise receives communications from the latter and -reports them to his home State. In this way not only are international -relations between these two States fostered and negotiated upon, but -such international affairs of other States as are of general interest to -all or a part of the members of the Family of Nations are also -discussed. Owing to the fact that all the more important Powers keep -permanent legations accredited to one another, a constant exchange of -views in regard to affairs international is taking place between them. - -[Sidenote: Observation.] - -[p] 380. But these are not all the functions of permanent diplomatic -envoys. Their task is, further, to observe attentively every occurrence -which might affect the interest of their home States, and to report such -observations to their Governments. It is through these reports that -every member of the Family of Nations is kept well informed in regard to -the army and navy, the finances, the public opinion, the commerce and -industry of foreign countries. And it must be specially observed that no -State that receives diplomatic envoys has a right to prevent them from -exercising their function of observation. - -[Sidenote: Protection.] - -[p] 381. A third task of diplomatic envoys is the protection of the -persons, property, and interests of such subjects of their home States -as are within the boundaries of the State to which they are accredited. -If such subjects are wronged without being able to find redress in the -ordinary way of justice, and ask the help of the diplomatic envoy of -their home State, he must be allowed to afford them protection. It is, -however, for the Municipal Law and regulations of his home State, and -not for International Law, to prescribe to an envoy the limits within -which he has to afford protection to his compatriots. - -[Sidenote: Miscellaneous Functions.] - -[p] 382. Negotiation, observation, and protection are tasks common to all -diplomatic envoys of every State. But a State may order its permanent -envoys to perform other tasks, such as the registration of deaths, -births, and marriages of subjects of the home State, legalisation of -their signatures, making out of passports for them, and the like. But in -doing this a State must be careful not to order its envoys to perform -such tasks as are by the law of the receiving State exclusively reserved -to its own officials. Thus, for instance, a State whose laws compel -persons who intend marriage to conclude it in presence of its -registrars, need not allow a foreign envoy to legalise a marriage of -compatriots before its registration by the official registrar. So, too, -a State need not allow a foreign envoy to perform an act which is -reserved for its jurisdiction, as, for instance, the examination of -witnesses on oath. - -[Sidenote: Envoys not to interfere in Internal Politics.] - -[p] 383. But it must be specially emphasised that envoys must not -interfere with the internal political life of the State to which they -are accredited. It certainly belongs to their functions to watch the -political events and the political parties with a vigilant eye and to -report their observations to their home States. But they have no right -whatever to take part in that political life itself, to encourage a -certain political party, or to threaten another. If nevertheless they do -so, they abuse their position. And it matters not whether an envoy acts -thus on his own account or on instructions from his home State. No -strong self-respecting State will allow a foreign envoy to exercise such -interference, but will either request his home State to recall him and -appoint another individual in his place or, in case his interference is -very flagrant, hand him his passports and therewith dismiss him. History -records many instances of this kind,[730] although in many cases it is -doubtful whether the envoy concerned really abused his office for the -purpose of interfering with internal politics. - -[Footnote 730: See Hall ([p] 98**), Taylor ([p] 322), and Moore (IV. [p] -640), who discuss a number of cases, especially that of Lord Sackville, -who received his passports in 1888 from the United States of America for -an alleged interference in the Presidential election.] - - -VII - -POSITION OF DIPLOMATIC ENVOYS - -[Sidenote: Diplomatic Envoys objects of International Law.] - -[p] 384. Diplomatic envoys are just as little subjects of International -Law as are heads of States; and the arguments regarding the position of -such heads[731] must also be applied to the position of diplomatic -envoys, which is given to them by International Law not as individuals -but as representative agents of their States. It is derived, not from -personal rights, but from rights and duties of their home States and the -receiving States. All the privileges which according to International -Law are possessed by diplomatic envoys are not rights given to them by -International Law, but rights given by the Municipal Law of the -receiving States in compliance with an international right of their home -States. For International Law gives a right to every State to demand for -its diplomatic envoys certain privileges from the Municipal Law of a -foreign State. Thus, a diplomatic envoy is not a subject but an object -of International Law, and is in this regard like any other individual. - -[Footnote 731: See above, [p] 344.] - -[Sidenote: Privileges due to Diplomatic Envoys.] - -[p] 385. Privileges due to diplomatic envoys, apart from ceremonial -honours, have reference to their inviolability and to their so-called -exterritoriality. The reasons why these privileges must be granted are -that diplomatic envoys are representatives of States and of their -dignity,[732] and, further, that they could not exercise their functions -perfectly unless they enjoyed such privileges. For it is obvious that, -were they liable to ordinary legal and political interference like other -individuals and thus more or less dependent on the good-will of the -Government, they might be influenced by personal considerations of -safety and comfort to such a degree as would materially hamper the -exercise of their functions. It is equally clear that liability to -interference with their full and free intercourse with their home States -through letters, telegrams, and couriers would wholly nullify their -_raison d'etre_. In this case it would be impossible for them to send -independent and secret reports to or receive similar instructions from -their home States. From the consideration of these and various cognate -reasons their privileges seem to be inseparable attributes of the very -existence of diplomatic envoys.[733] - -[Footnote 732: See above, [p] 121.] - -[Footnote 733: The Institute of International Law, at its meeting at -Cambridge in 1895, discussed the privileges of diplomatic envoys, and -drafted a body of seventeen rules in regard thereto; see Annuaire, XIV. -p. 240.] - - -VIII - -INVIOLABILITY OF DIPLOMATIC ENVOYS - - Vattel, IV. [p][p] 80-107--Hall, [p][p] 50, 98*--Phillimore, II. - [p][p] 154-175--Twiss, I. [p][p] 216-217--Moore, IV. [p][p] - 657-659--Ullmann, [p] 50--Geffcken in Holtzendorff, III. pp. - 648-654--Rivier, I. [p] 38--Nys, II. pp. 372-374--Bonfils, Nos. - 684-699--Pradier-Fodere, III. [p][p] 1382-1393--Merignhac, II. pp. - 264-273--Fiore, II. Nos. 1127-1143--Calvo, III. [p][p] - 1480-1498--Martens, II. [p] 11--Crouzet, "De l'inviolabilite ... - des agents diplomatiques" (1875). - -[Sidenote: Protection due to Diplomatic Envoys.] - -[p] 386. Diplomatic envoys are just as sacrosanct as heads of States. They -must, therefore, on the one hand, be afforded special protection as -regards the safety of their persons, and, on the other hand, they must -be exempted from every kind of criminal jurisdiction of the receiving -States. Now the protection due to diplomatic envoys must find its -expression not only in the necessary police measures for the prevention -of offences, but also in specially severe punishments to be inflicted on -offenders. Thus, according to English Criminal Law,[734] every one is -guilty of a misdemeanour who, by force or personal restraint, violates -any privilege conferred upon the diplomatic representatives of foreign -countries, or who[735] sets forth or prosecutes or executes any writ or -process whereby the person of any diplomatic representative of a -foreign country or the person of a servant of any such representative -is arrested or imprisoned. The protection of diplomatic envoys is not -restricted to their own person, but must be extended to the members of -their family and suite, to their official residence, their furniture, -carriages, papers, and likewise to their intercourse with their home -States by letters, telegrams, and special messengers. Even after a -diplomatic mission has come to an end, the archives of an Embassy must -not be touched, provided they have been put under seal and confided to -the protection of another envoy.[736] - -[Footnote 734: See Stephen's Digest, articles 96-97.] - -[Footnote 735: 7 Anne, c. 12, sect. 3-6. This statute, which was passed -in 1708 in consequence of the Russian Ambassador in London having been -arrested for a debt of _l._50, has always been considered as declaratory -of the existing law in England, and not as creating new law.] - -[Footnote 736: See above, [p] 106 (case of Montagnini), and below, [p] -411.] - -[Sidenote: Exemption from Criminal Jurisdiction.] - -[p] 387. As regards the exemption of diplomatic envoys from criminal -jurisdiction, theory and practice of International Law agree -nowadays[737] upon the fact that the receiving States have no right, -under any circumstances whatever, to prosecute and punish diplomatic -envoys. But among writers on International Law the question is not -settled whether the commands and injunctions of the laws of the -receiving States concern diplomatic envoys at all, so that the latter -have to comply with such commands and injunctions, although the fact is -established that they can never be prosecuted and punished for any -breach.[738] This question ought to be decided in the negative, for a -diplomatic envoy must in no point be considered under the legal -authority of the receiving State. But this does not mean that a -diplomatic envoy must have a right to do what he likes. The -presupposition of the privileges he enjoys is that he acts and behaves -in such a manner as harmonises with the internal order of the receiving -State. He is therefore expected voluntarily to comply with all such -commands and injunctions of the Municipal Law as do not restrict him in -the effective exercise of his functions. In case he acts and behaves -otherwise, and disturbs thereby the internal order of the State, the -latter will certainly request his recall or send him back at once. - -[Footnote 737: In former times there was no unanimity amongst -publicists. See Phillimore, II. [p] 154.] - -[Footnote 738: The point is thoroughly discussed by Beling, "Die -strafrechtliche Bedeutung der Exterritorialitaet" (1896), pp. 71-90.] - -History records many cases of diplomatic envoys who have conspired -against the receiving States, but have nevertheless not been prosecuted. -Thus, in 1584, the Spanish Ambassador Mendoza in England plotted to -depose Queen Elizabeth; he was ordered to leave the country. In 1586 the -French Ambassador in England, L'Aubespine, conspired against the life of -Queen Elizabeth; he was simply warned not to commit a similar act again. -In 1654 the French Ambassador in England, De Bass, conspired against the -life of Cromwell; he was ordered to leave the country within twenty-four -hours.[739] - -[Footnote 739: These and other cases are discussed by Phillimore, II. -[p][p] 160-165.] - -[Sidenote: Limitation of Inviolability.] - -[p] 388. As diplomatic envoys are sacrosanct, the principle of their -inviolability is generally recognised. But there is one exception. For -if a diplomatic envoy commits an act of violence which disturbs the -internal order of the receiving State in such a manner as makes it -necessary to put him under restraint for the purpose of preventing -similar acts, or in case he conspires against the receiving State and -the conspiracy can be made futile only by putting him under restraint, -he may be arrested for the time being, although he must in due time be -safely sent home. Thus in 1717 the Swedish Ambassador Gyllenburg in -London, who was an accomplice in a plot against King George I., was -arrested and his papers were searched. In 1718 the Spanish Ambassador -Prince Cellamare in France was placed in custody because he organised a -conspiracy against the French Government.[740] And it must be emphasised -that a diplomatic envoy cannot make it a point of complaint if injured -in consequence of his own unjustifiable behaviour, as for instance in -attacking an individual who in self-defence retaliates, or in -unreasonably or wilfully placing himself in dangerous or awkward -positions, such as in a disorderly crowd.[741] - -[Footnote 740: Details regarding these cases are given by Phillimore, -II. [p][p] 166 and 170.] - -[Footnote 741: See article 6 of the rules regarding diplomatic -immunities adopted by the Institute of International Law at its meeting -at Cambridge in 1895 (Annuaire, XIV. p. 240).] - - -IX - -EXTERRITORIALITY OF DIPLOMATIC ENVOYS - - Vattel, IV. [p][p] 80-119--Hall, [p][p] 50, 52, 53--Westlake, I. - pp. 263-273--Phillimore, II. [p][p] 176-210--Taylor, [p][p] - 299-315--Twiss, I. [p][p] 217-221--Moore, II. [p][p] 291-304 and - IV. [p][p] 660-669--Ullmann, [p] 50--Geffcken in Holtzendorff, - III. pp. 654-659--Nys, II. pp. 353-385--Rivier, I. 38--Bonfils, - Nos. 700-721--Pradier-Fodere, III. [p][p] 1396-1495--Merignhac, - II. pp. 249-293--Fiore, II. Nos. 1145-1163--Calvo, III. [p][p] - 1499-1531--Martens, II. [p][p] 12-14--Gottschalck, "Die - Exterritorialitaet der Gesandten" (1878)--Heyking, - "L'exterritorialite" (1889)--Odier, "Des privileges et immunites - des agents diplomatiques" (1890)--Vercamer, "Des franchises - diplomatiques et specialement de l'exterritorialite" - (1891)--Droin, "L'exterritorialite des agents diplomatiques" - (1895)--Mirre, "Die Stellung der voelkerrechtlichen Literatur zur - Lehre von den sogenannten Nebenrechten der gesandschaftlichen - Functionaere" (1904). - -[Sidenote: Reason and Fictional Character of Exterritoriality.] - -[p] 389. The exterritoriality which must be granted to diplomatic envoys -by the Municipal Laws of all the members of the Family of Nations is -not, as in the case of sovereign heads of States, based on the principle -_par in parem non habet imperium_, but on the necessity that envoys -must, for the purpose of fulfilling their duties, be independent of the -jurisdiction, the control, and the like, of the receiving States. -Exterritoriality, in this as in every other case, is a fiction only, for -diplomatic envoys are in reality not without, but within, the -territories of the receiving States. The term "Exterritoriality" is -nevertheless valuable, because it demonstrates clearly the fact that -envoys must in most points be treated as though they were not within -the territory of the receiving States.[742] And the so-called -exterritoriality of envoys is actualised by a body of privileges which -must be severally discussed. - -[Footnote 742: With a few exceptions (see Droin, "L'exterritorialite des -agents diplomatiques" (1895), pp. 32-43), all publicists accept the term -and the fiction of exterritoriality.] - -[Sidenote: Immunity of Domicile.] - -[p] 390. The first of these privileges is immunity of domicile, the -so-called _Franchise de l'hotel_. The present immunity of domicile has -developed from the former condition of things, when the official -residences of envoys were in every point considered to be outside the -territory of the receiving States, and when this exterritoriality was in -many cases even extended to the whole quarter of the town in which such -a residence was situated. One used then to speak of a _Franchise du -quartier_ or the _Jus quarteriorum_. And an inference from this -_Franchise du quartier_ was the so-called right of asylum, envoys -claiming the right to grant asylum within the boundaries of their -residential quarters to every individual who took refuge there.[743] But -already in the seventeenth century most States opposed this _Franchise -du quartier_, and it totally disappeared in the eighteenth century, -leaving behind, however, the claim of envoys to grant asylum within -their official residences. Thus, when in 1726 the Duke of Ripperda, -first Minister to Philip V. of Spain, who was accused of high treason -and had taken refuge in the residence of the English Ambassador in -Madrid, was forcibly arrested there by order of the Spanish Government, -the British Government complained of this act as a violation of -International Law.[744] Twenty-one years later, in 1747, a similar case -occurred in Sweden. A merchant named Springer was accused of high -treason and took refuge in the house of the English Ambassador at -Stockholm. On the refusal of the English envoy to surrender Springer, -the Swedish Government surrounded the embassy with troops and ordered -the carriage of the envoy, when leaving the embassy, to be followed by -mounted soldiers. At last Springer was handed over to the Swedish -Government under protest, but England complained and called back her -ambassador, as Sweden refused to make the required reparation.[745] As -these two examples show, the right of asylum, although claimed and often -conceded, was nevertheless not universally recognised. During the -nineteenth century all remains of it vanished, and when in 1867 the -French envoy in Lima claimed it, the Peruvian Government refused to -concede it.[746] - -[Footnote 743: Although this right of asylum was certainly recognised by -the States in former centuries, it is of interest to note that Grotius -did not consider it postulated by International Law, for he says of this -right (II. c. 18, [p] 8): "Ex concessione pendet ejus apud quem agit. -Istud enim juris gentium non est." See also Bynkershoek, "De foro -legat." c. 21.] - -[Footnote 744: See Martens, "Causes Celebres," I. p. 178.] - -[Footnote 745: See Martens, "Causes Celebres," II. p. 52.] - -[Footnote 746: The South American States, Chili excepted, still grant -the right to foreign envoys to afford asylum to political refugees in -time of revolution. It is, however, acknowledged that this right is not -based upon a rule of International Law, but merely upon _local_ usage. -See Hall, [p] 52; Westlake, I. p. 272; Moore, II. [p][p] 291-304; -Chilbert in A.J. III. (1909), pp. 562-595; Robbin in R.G. XV. (1908), -pp. 461-508; Moore, "Asylum in Legations and Consulates, and in Vessels" -(1892). That actually in times of revolution and of persecution of -certain classes of the population asylum is occasionally granted to -refugees and respected by the local authorities, there is no doubt, but -this occasional practice does not shake the validity of the general rule -of International Law according to which there is no obligation on the -part of the receiving State to grant to envoys the right of affording -asylum to individuals not belonging to their suites. See, however, -Moore, II. [p] 293.] - -Nowadays the official residences of envoys are _in a sense and in some -respects only_ considered as though they were outside the territory of -the receiving States. For the immunity of domicile granted to diplomatic -envoys comprises the inaccessibility of these residences to officers of -justice, police, or revenue, and the like, of the receiving States -without the special consent of the respective envoys. Therefore, no act -of jurisdiction or administration of the receiving Governments can take -place within these residences, except by special permission of the -envoys. And the stables and carriages of envoys are considered to be -parts of their residences. But such immunity of domicile is granted -only in so far as it is necessary for the independence and inviolability -of envoys and the inviolability of their official documents and -archives. If an envoy abuses this immunity, the receiving Government -need not bear it passively. There is, therefore, no obligation on the -part of the receiving State to grant an envoy the right of affording -asylum to criminals or to other individuals not belonging to his suite. -Of course, an envoy need not deny entrance to criminals who want to take -refuge in the embassy. But he must surrender them to the prosecuting -Government at its request, and, if he refuses, any measures may be taken -to induce him to do so, apart from such as would involve an attack on -his person. Thus, the embassy may be surrounded by soldiers, and -eventually the criminal may even forcibly be taken out of the embassy. -But such measures of force are justifiable only if the case is an urgent -one, and after the envoy has in vain been required to surrender the -criminal. Further, if a crime is committed inside the house of an envoy -by an individual who does not enjoy personally the privilege of -exterritoriality, the criminal must be surrendered to the local -Government. The case of Nikitschenkow, which occurred in Paris in 1867, -is an instance thereof. Nikitschenkow, a Russian subject not belonging -to the Russian Legation, made an attempt on and wounded a member of that -legation within the precincts of the embassy. The French police were -called in and arrested the criminal. The Russian Government required his -extradition, maintaining that, as the crime was committed inside the -Russian Embassy, it fell exclusively under Russian jurisdiction; but the -French Government refused extradition and Russia dropped her claim. - -Again, an envoy has no right to seize a subject of his home State who is -within the boundaries of the receiving State and keep him under arrest -inside the embassy with the intention of bringing him away into the -power of his home State. An instance thereof is the case of the Chinaman -Sun Yat Sen which occurred in London in 1896. This was a political -refugee from China living in London. He was induced to enter the house -of the Chinese Legation and kept under arrest there in order to be -conveyed forcibly to China, the Chinese envoy contending that, as the -house of the legation was Chinese territory, the English Government had -no right to interfere. But the latter did interfere, and Sun Yat Sen was -released after several days. - -As a contrast to this case may be mentioned that of Kalkstein which -occurred on the Continent in 1670. Colonel von Kalkstein, a Prussian -subject, had fled to Poland for political reasons since he was accused -of high treason against the Prussian Government. Now Frederic William, -the great Elector of Brandenburg, ordered his diplomatic envoy at -Warsaw, the capital of Poland, to obtain possession of the person of -Kalkstein. On November 28, 1670, this order was carried out. Kalkstein -was secretly seized, and, wrapped up in a carpet, was carried across the -frontier. He was afterwards executed at Memel. - -[Sidenote: Exemption from Criminal and Civil Jurisdiction.] - -[p] 391. The second privilege of envoys in reference to their -exterritoriality is their exemption from criminal and civil -jurisdiction. As their exemption from criminal jurisdiction is also a -consequence of their inviolability, it has already been discussed,[747] -and we have here to deal with their exemption from civil jurisdiction -only. No civil action of any kind as regards debts and the like can be -brought against them in the Civil Courts of the receiving States. They -cannot be arrested for debts, nor can their furniture, their carriages, -their horses, and the like, be seized for debts. They cannot be -prevented from leaving the country for not having paid their debts, nor -can their passports be refused to them on the same account. Thus, when -in 1772 the French Government refused the passports to Baron de Wrech, -the envoy of the Landgrave of Hesse-Cassel at Paris, for not having paid -his debts, all the other envoys in Paris complained of this act of the -French Government as a violation of International Law.[748] But the rule -that an envoy is exempt from civil jurisdiction has certain exceptions. -If an envoy enters an appearance to an action against himself, or if he -himself brings an action under the jurisdiction of the receiving State, -the courts of the latter have civil jurisdiction in such cases over him. -And the same is valid as regards real property held within the -boundaries of the receiving State by an envoy, not in his official -character, but as a private individual, and as regards mercantile[749] -ventures in which he might engage on the territory of the receiving -State. - -[Footnote 747: See above, [p][p] 387-388.] - -[Footnote 748: See Martens, "Causes Celebres," II. p. 282.] - -[Footnote 749: The statute of 7 Anne, c. 12, on which the exemption of -diplomatic envoys from English jurisdiction is based, does not exclude -such envoy as embarks on mercantile ventures from the benefit of the -Act, and the practice of the English Courts grants, therefore, to -foreign envoys even in such cases exemption from local jurisdiction; see -the case (1859) of Magdalena Steam Navigation Co. _v._ Martin, 2 Ellis -and Ellis 94, overruling the case of Taylor _v._ Best, 14 C.B. 487. See -also Westlake, I. p. 267.] - -[Sidenote: Exemption from Subpoena as witness.] - -[p] 392. The third privilege of envoys in reference to their -exterritoriality is exemption from subpoena as witnesses. No envoy -can be obliged, or even required, to appear as a witness in a civil or -criminal or administrative Court, nor is an envoy obliged to give -evidence before a Commissioner sent to his house. If, however, an envoy -chooses for himself to appear as a witness or to give evidence of any -kind, the Courts can make use of such evidence. A remarkable case of -this kind is that of the Dutch envoy Dubois in Washington, which -happened in 1856. A case of homicide occurred in the presence of M. -Dubois, and, as his evidence was absolutely necessary for the trial, the -Foreign Secretary of the United States asked Dubois to appear before the -Court as a witness, recognising the fact that Dubois had no duty to do -so. When Dubois, on the advice of all the other diplomatic envoys in -Washington, refused to comply with this desire, the United States -brought the matter before the Dutch Government. The latter, however, -approved of Dubois' refusal, but authorised him to give evidence under -oath before the American Foreign Secretary. As, however, such evidence -would have had no value at all according to the local law, Dubois' -evidence was not taken, and the Government of the United States asked -the Dutch Government to recall him.[750] - -[Footnote 750: See Wharton, I. [p] 98; Moore, IV. [p] 662; and Calvo, -III. [p] 1520.] - -[Sidenote: Exemption from Police.] - -[p] 393. The fourth privilege of envoys in reference to their -exterritoriality is exemption from the police of the receiving States. -Orders and regulations of the police do in no way bind them. On the -other hand, this exemption from police does not contain the privilege of -an envoy to do what he likes as regards matters which are regulated by -the police. Although such regulations can in no way bind him, an envoy -enjoys the privilege of exemption from police under the presupposition -that he acts and behaves in such a manner as harmonises with the -internal order of the receiving State. He is, therefore, expected to -comply voluntarily with all such commands and injunctions of the local -police as, on the one hand, do not restrict him in the effective -exercise of his duties, and, on the other hand, are of importance for -the general order and safety of the community. Of course, he cannot be -punished if he acts otherwise, but the receiving Government may request -his recall or even be justified in other measures of such a kind as do -not injure his inviolability. Thus, for instance, if in time of plague -an envoy were not voluntarily to comply with important sanitary -arrangements of the local police, and if there were great danger in -delay, a case of necessity would be created and the receiving Government -would be justified in the exercise of reasonable pressure upon the -envoy. - -[Sidenote: Exemption from Taxes and the like.] - -[p] 394. The fifth privilege of envoys in reference to their -exterritoriality is exemption from taxes and the like. As an envoy, -through his exterritoriality, is considered not to be subjected to the -territorial supremacy of the receiving State, he must be exempt from all -direct personal taxation and therefore need not pay either income-tax or -other direct taxes. As regards rates, it is necessary to draw a -distinction. Payment of rates imposed for local objects from which an -envoy himself derives benefit, such as sewerage, lighting, water, -night-watch, and the like, can be required of the envoy, although this -is often[751] not done. Other rates, however, such as poor-rates and the -like, he cannot be requested to pay. As regards customs duties, -International Law does not claim the exemption of envoys therefrom. -Practically and by courtesy, however, the Municipal Laws of many States -allow diplomatic envoys within certain limits the entry free of duty of -goods intended for their own private use. If the house of an envoy is -the property of his home State or his own property, the house need not -be exempt from property tax, although it is often so by the courtesy of -the receiving State. Such property tax is not a personal and direct, but -an indirect tax. - -[Footnote 751: As, for instance, in England where the payment of local -rates cannot be enforced by suit or distress against a member of a -legation; see Parkinson _v._ Potter, 16 Q.B. 152, and Macartney _v._ -Garbutt, L.R. 24 Q.B. 368. See also Westlake, I. p. 268.] - -[Sidenote: Right of Chapel.] - -[p] 395. A sixth privilege of envoys in reference to their -exterritoriality is the so-called Right of Chapel (_Droit de chapelle_ -or _Droit du culte_). This is the privilege of having a private chapel -for the practice of his own religion, which must be granted to an envoy -by the Municipal Law of the receiving State. A privilege of great worth -in former times, when freedom of religious worship was unknown in most -States, it has at present an historical value only. But it has not -disappeared, and might become again of actual importance in case a State -should in the future give way to reactionary intolerance. It must, -however, be emphasised that the right of chapel must only comprise the -privilege of religious worship in a private chapel inside the official -residence of the envoy. No right of having and tolling bells need be -granted. The privilege includes the office of a chaplain, who must be -allowed to perform every religious ceremony within the chapel, such as -baptism and the like. It further includes permission to all the -compatriots of the envoy, even if they do not belong to his retinue, to -take part in the service. But the receiving State need not allow its own -subjects to take part therein. - -[Sidenote: Self-jurisdiction.] - -[p] 396. The seventh and last privilege of envoys in reference to their -exterritoriality is self-jurisdiction within certain limits. As the -members of his retinue are considered exterritorial, the receiving State -has no jurisdiction over them, and the home State may therefore delegate -such civil and criminal jurisdiction to the envoy. But no receiving -State is required to grant self-jurisdiction to an ambassador beyond a -certain reasonable limit. Thus, an envoy must have jurisdiction over his -retinue in matters of discipline, he must be able to order the arrest of -a member of his retinue who has committed a crime and is to be sent home -for his trial, and the like. But no civilised State would nowadays allow -an envoy himself to try a member of his retinue. This was done in former -centuries. Thus, in 1603, Sully, who was sent by Henri IV. of France on -a special mission to England, called together a French jury in London -and had a member of his retinue condemned to death for murder. The -convicted man was handed over for execution to the English authorities, -but James I. reprieved him.[752] - -[Footnote 752: See Martens, "Causes Celebres," I. p. 391. See also the -two cases reported by Calvo, III. [p] 1545.] - - -X - -POSITION OF DIPLOMATIC ENVOYS AS REGARDS THIRD STATES - - Vattel, IV. [p][p] 84-86--Hall, [p][p] 99-101--Phillimore, II. [p][p] - 172-175--Taylor, [p][p] 293-295--Moore, IV. [p][p] 643-644--Twiss, I. [p] - 222--Wheaton, [p][p] 242-247--Ullmann, [p] 52--Geffcken in Holtzendorff, - III. pp. 665-668--Heffter, [p] 207--Rivier, [p] 39--Nys, II. p. - 390--Pradier-Fodere, III. [p] 1394--Fiore, II. Nos. - 1143-1144--Calvo, III. [p][p] 1532-1539. - -[Sidenote: Possible Cases.] - -[p] 397. Although, when an individual is accredited as diplomatic envoy by -one State to another, these two States only are directly concerned in -his appointment, the question must be discussed, what position such -envoy has as regards third States in those cases in which he comes in -contact with them. Several such cases are possible. An envoy may, first, -travel through the territory of a third State to reach the territory of -the receiving State. Or, an envoy accredited to a belligerent State and -living on the latter's territory may be found there by the other -belligerent who militarily occupies such territory. And, lastly, an -envoy accredited to a certain State might interfere with the affairs of -a third State. - -[Sidenote: Envoy travelling through Territory of third State.] - -[p] 398. If an envoy travels through the territory of a third State -incognito or for his pleasure only, there is no doubt that he cannot -claim any special privileges whatever. He is in exactly the same -position as any other foreign individual travelling on this territory, -although by courtesy he might be treated with particular attention. But -matters are different when an envoy on his way from his own State to -the State of his destination travels through the territory of a third -State. If the sending and the receiving States are not neighbours, the -envoy probably has to travel through the territory of a third State. -Now, as the institution of legation is a necessary one for the -intercourse of States and is firmly established by International Law, -there ought to be no doubt whatever that such third State must grant the -right of innocent passage (_jus transitus innoxii_) to the envoy, -provided that it is not at war with the sending or the receiving State. -But no other privileges,[753] especially those of inviolability and -exterritoriality need be granted to the envoy. And the right of innocent -passage does not include the right to stop on the territory longer than -is necessary for the passage. Thus, in 1854, Soule, the envoy of the -United States of America at Madrid, who had landed at Calais, intending -to return to Madrid _via_ Paris, was provisionally stopped at Calais for -the purpose of ascertaining whether he intended to make a stay in Paris, -which the French Government wanted to prevent, because he was a French -refugee naturalised in America and was reported to have made speeches -against the Emperor Napoleon. Soule at once left Calais, and the French -Government declared, during the correspondence with the United States in -the matter, that there was no objection to Soule's traversing France on -his way to Madrid, but they would not allow him to make a sojourn in -Paris or anywhere else in France.[754] - -[Footnote 753: The matter, which has always been disputed, is fully -discussed by Twiss, I. [p] 222, who also quotes the opinion of Grotius, -Bynkershoek, and Vattel.] - -[Footnote 754: See Wharton, I. [p] 97, and Moore, IV. [p] 643.] - -It must be specially remarked that no right of passage need be granted -if the third State is at war with the sending or receiving State. The -envoy of a belligerent, who travels through the territory of the other -belligerent to reach the place of his destination, may be seized and -treated as a prisoner of war. Thus, in 1744, when the French Ambassador, -Marechal de Belle-Isle, on his way to Berlin, passed through the -territory of Hanover, which country was then, together with England, at -war with France, he was made a prisoner of war and sent to England. - -[Sidenote: Envoy found by Belligerent on occupied Enemy Territory.] - -[p] 399. When in time of war a belligerent occupies the capital of an -enemy State and finds there envoys of other States, these envoys do not -lose their diplomatic privileges as long as the State to which they are -accredited is in existence. As military occupation does not extinguish a -State subjected thereto, such envoys do not cease to be envoys. On the -other hand, they are not accredited to the belligerent who has taken -possession of the territory by military force, and the question is not -yet settled by International Law how far the occupying belligerent has -to respect the inviolability and exterritoriality granted to such envoys -by the law of the land in compliance with a demand of International Law. -It may safely be maintained that he must grant them the right to leave -the occupied territory. But must he likewise grant them the right to -stay? Has he to respect their immunity of domicile and their other -privileges in reference to their exterritoriality? Neither customary -rules nor international conventions exist as regards these questions, -which must, therefore, be treated as open. The only case which occurred -concerning this problem is that of Mr. Washburne, ambassador of the -United States in Paris during the siege of that town in 1870 by the -Germans. This ambassador claimed the right of sending a messenger with -despatches to London in a sealed bag through the German lines. But the -Germans refused to grant that right, and did not alter their decision -although the Government of the United States protested.[755] - -[Footnote 755: See below, vol. II. [p] 157, and Wharton, I. [p] 97.] - -[Sidenote: Envoy interfering with affairs of a third State.] - -[p] 400. There is no doubt that an envoy must not interfere with affairs -concerning the State to which he is accredited and a third State. If -nevertheless he does interfere, he enjoys no privileges whatever against -such third State. Thus, in 1734, the Marquis de Monti, the French envoy -in Poland, who took an active part in the war between Poland and Russia, -was made a prisoner of war by the latter and not released till 1736, -although France protested.[756] - -[Footnote 756: See Martens, "Causes Celebres," I. p. 207.] - - -XI - -THE RETINUE OF DIPLOMATIC ENVOYS - - Vattel, IV. [p][p] 120-124--Hall, [p] 51--Phillimore, II. [p][p] - 186-193--Twiss, I. [p] 218--Moore, IV. [p][p] 664-665--Ullmann, [p][p] 47 - and 51--Geffcken in Holtzendorff, III. pp. 660-661--Heffter, [p] - 221--Rivier, I. pp. 458-461--Nys, II. pp. 386-390--Pradier-Fodere, - III. [p][p] 1472-1486--Fiore, II. Nos. 1164-1168--Calvo, III. [p][p] - 1348-1350--Martens, II. [p] 16--Roederer, "De l'application des - immunites de l'ambassadeur au personnel de l'ambassade" (1904), - pp. 22-84. - -[Sidenote: Different Classes of Members of Retinue.] - -[p] 401. The individuals accompanying an envoy officially, or in his -private service, or as members of his family, or as couriers, compose -his retinue. The members of the retinue belong, therefore, to four -different classes. All those individuals who are officially attached to -an envoy are members of the legation and are appointed by the home State -of the envoy. To this first class belong the Councillors, Attaches, -Secretaries of the Legation; the Chancellor of the Legation and his -assistants; the interpreters, and the like; the chaplain, the doctor, -and the legal advisers, provided that they are appointed by the home -State and sent specially as members of the legation. A list of these -members of legation is handed over by the envoy to the Secretary for -Foreign Affairs of the receiving State and is revised from time to time. -The Councillors and Secretaries of Legation are personally presented to -the Secretary for Foreign Affairs, and very often also to the head of -the receiving State. The second class comprises all those individuals -who are in the private service of the envoy and of the members of -legation, such as servants of all kinds, the private secretary of the -envoy, the tutor and the governess of his children. The third class -consists of the members of the family of the envoy--namely, his wife, -children, and such of his other near relatives as live within his family -and under his roof. And, lastly, the fourth class consists of the -so-called couriers. They are the bearers of despatches sent by the envoy -to his home State, who on their way back also bear despatches from the -home State to the envoy. Such couriers are attached to most legations -for the guarantee of the safety and secrecy of the despatches. - -[Sidenote: Privileges of Members of Legation.] - -[p] 402. It is a universally recognised[757] rule of International Law -that all members of a legation are as inviolable and exterritorial as -the envoy himself. They must, therefore, be granted by the receiving -State exemption from criminal and civil jurisdiction, exemption from -police,[758] subpoena as witnesses, and taxes. They are considered, -like the envoy himself, to retain their domicile within their home -State. Children born to them during their stay within the receiving -State are considered born on the territory of the home State. And it -must be emphasised that it is not within the envoy's power to waive -these privileges of members of legation, although the home State itself -can waive these privileges. Thus when, in 1909, Wilhelm Beckert, the -Chancellor of the German Legation in Santiago de Chili, murdered the -porter of this legation, a Chilian subject, and then set fire to the -Chancery in order to conceal his embezzlements of money belonging to the -legation, the German Government consented to his being prosecuted in -Chili; he was tried, found guilty, and executed at Santiago on July 5, -1910. - -[Footnote 757: Some authors, however, plead for an abrogation of this -rule. See Martens, II. [p] 16.] - -[Footnote 758: A case of this kind occurred in 1904 in the United -States. Mr. Gurney, Secretary of the British Legation at Washington, was -fined by the police magistrate of Lee, in Massachusetts, for furiously -driving a motor-car. But the judgment was afterwards annulled, and the -fine imposed remitted.] - -[Sidenote: Privileges of Private Servants.] - -[p] 403. It is a customary rule of International Law that the receiving -State must grant to all persons in the private service of the envoy and -of the members of his legation, provided such persons are not subjects -of the receiving State, exemption from civil and criminal -jurisdiction.[759] But the envoy can disclaim these exemptions, and -these persons cannot then claim exemption from police, immunity of -domicile, and exemption from taxes. Thus, for instance, if such a -private servant commits a crime outside the residence of his employer, -the police can arrest him; he must, however, be at once released if the -envoy does not waive the exemption from criminal jurisdiction. - -[Footnote 759: This rule seems to be everywhere recognised except in -Great Britain. When, in 1827, a coachman of Mr. Gallatin, the American -Minister in London, committed an assault outside the embassy, he was -arrested in the stable of the embassy and charged before a local -magistrate, and the British Foreign Office refused to recognise the -exemption of the coachman from the local jurisdiction. See Wharton, I. [p] -94, and Hall, [p] 50.] - -[Sidenote: Privileges of Family of Envoy.] - -[p] 404. Although the wife of the envoy, his children, and such of his -near relatives as live within his family and under his roof belong to -his retinue, there is a distinction to be made as regards their -privileges. His wife must certainly be granted all his privileges in so -far as they concern inviolability and exterritoriality. As regards, -however, his children and other relatives, no general rule of -International Law can safely be said to be generally recognised, but -that they must be granted exemption from civil and criminal -jurisdiction. But even this rule was formerly not generally recognised. -Thus, when in 1653 Don Pantaleon Sa, the brother of the Portuguese -Ambassador in London and a member of his suite, killed an Englishman -named Greenway, he was arrested, tried in England, found guilty, and -executed.[760] Nowadays the exemption from civil and criminal -jurisdiction of such members of an envoy's family as live under his roof -is always granted. Thus, when in 1906 Carlo Waddington,[761] the son of -the Chilian envoy at Brussels, murdered the secretary of the Chilian -Legation, the Belgian authorities did not take any step to arrest him. -Two days afterwards, however, the Chilian envoy waived the privilege of -the immunity of his son, and on March 2 the Chilian Government likewise -agreed to the murderer being prosecuted in Belgium. The trial took place -in July 1907, but Waddington was acquitted by the Belgian jury. - -[Footnote 760: The case is discussed by Phillimore, II. [p] 169.] - -[Footnote 761: See R.G. XIV. (1907), pp. 159-165.] - -[Sidenote: Privileges of Couriers of Envoy.] - -[p] 405. To insure the safety and secrecy of the diplomatic despatches -they bear, couriers must be granted exemption from civil and criminal -jurisdiction and afforded special protection during the exercise of -their office. It is particularly important to observe that they must -have the right of innocent passage through _third_ States, and that, -according to general usage, those parts of their luggage which contain -diplomatic despatches and are sealed with the official seal must not be -opened and searched. It is usual to provide couriers with special -passports for the purpose of their legitimation. - - -XII - -TERMINATION OF DIPLOMATIC MISSION - - Vattel, IV. [p][p] 125-126--Hall, [p] 98**--Phillimore, II. [p][p] - 237-241--Moore, IV. [p][p] 636, 639, 640, 666--Taylor, [p][p] - 320-323--Wheaton, [p][p] 250-251--Ullmann, [p] 53--Heffter, [p][p] - 223-226--Rivier, I. [p] 40--Nys, II. p. 392--Bonfils, Nos. - 730-732--Pradier-Fodere, III. [p][p] 1515-1535--Fiore, II. Nos. - 1169-1175--Calvo, III. [p][p] 1363-1367--Martens, II. [p] 17. - -[Sidenote: Termination in contradistinction to Suspension.] - -[p] 406. A diplomatic mission may come to an end from eleven different -causes--namely, accomplishment of the object for which the mission was -sent; expiration of such Letters of Credence as were given to an envoy -for a specific time only; recall of the envoy by the sending State; his -promotion to a higher class; the delivery of passports to him by the -receiving State; request of the envoy for his passports on account of -ill-treatment; war between the sending and the receiving State; -constitutional changes in the headship of the sending or receiving -State; revolutionary change of government of the sending or receiving -State; extinction of the sending or receiving State; and, lastly, death -of the envoy. These events must be treated singly on account of their -peculiarities. But the termination of diplomatic missions must not be -confounded with their suspension. Whereas from the foregoing eleven -causes a mission comes actually to an end, and new Letters of Credence -are necessary, a suspension does not put an end to the mission, but -creates an interval during which the envoy, although he remains in -office, cannot exercise his office. Suspension may be the result of -various causes, as, for instance, a revolution within the sending or -receiving State. Whatever the cause may be, an envoy enjoys all his -privileges during the duration of the suspension. - -[Sidenote: Accomplishment of Object of Mission.] - -[p] 407. A mission comes to an end through the fulfilment of its objects -in all cases of missions for special purposes. Such cases may be -ceremonial functions like representations at weddings, funerals, -coronations; or notification of changes in the headship of a State, or -representation of a State at Conferences and Congresses; and other -cases. Although the mission is terminated through the accomplishment of -its object, the envoys enjoy all their privileges on their way home. - -[Sidenote: Expiration of Letter of Credence.] - -[p] 408. If a Letter of Credence for a specified time only is given to an -envoy, his mission terminates with the expiration of such time. A -temporary Letter of Credence may, for instance, be given to an -individual for the purpose of representing a State diplomatically during -the interval between the recall of an ambassador and the appointment of -his successor. - -[Sidenote: Recall.] - -[p] 409. The mission of an envoy, be he permanently or only temporarily -appointed, terminates through his recall by the sending State. If this -recall is not caused by unfriendly acts of the receiving State but by -other circumstances, the envoy receives a Letter of Recall from the -head, or, in case he is only a Charge d'Affaires, from the Foreign -Secretary of his home State, and he[762] hands this letter over to the -head of the receiving State in a solemn audience, or in the case of a -Charge d'Affaires to the Foreign Secretary. In exchange for the Letter -of Recall the envoy receives his passports and a so-called _Lettre de -recreance_, a letter in which the head of the receiving State (or the -Foreign Secretary) acknowledges the Letter of Recall. Although therewith -his mission ends, he enjoys nevertheless all his privileges on his home -journey.[763] A recall may be caused by the resignation of the envoy, by -his transference to another post, and the like. It may, secondly, be -caused by the outbreak of a conflict between the sending and the -receiving State which leads to a rupture of diplomatic intercourse, and -under these circumstances the sending State may order its envoy to ask -for his passports and depart at once without handing in a Letter of -Recall. And, thirdly, a recall may result from a request of the -receiving State by reason of real or alleged misconduct of the envoy. -Such request of recall[764] may lead to a rupture of diplomatic -intercourse, if the receiving State insists upon the recall, although -the sending State does not recognise the act of its envoy as misconduct. - -[Footnote 762: But sometimes his successor presents the letter recalling -his predecessor to the head of the receiving State, or to the Foreign -Secretary in the case of Charges d'Affaires.] - -[Footnote 763: See the interesting cases discussed by Moore, IV. [p] 666.] - -[Footnote 764: Notable cases of request of recall of envoys are reported -by Taylor, [p] 322; Hall, [p] 98**; Moore, IV. [p] 639.] - -[Sidenote: Promotion to a higher Class.] - -[p] 410. When an envoy remains at his post, but is promoted to a higher -class--for instance, when a Charge d'Affaires is created a Minister -Resident or a Minister Plenipotentiary is created an Ambassador--his -original mission technically ends, and he receives therefore a new -Letter of Credence. - -[Sidenote: Delivery of Passports.] - -[p] 411. A mission may terminate, further, through the delivery of his -passports to an envoy by the receiving State. The reason for such -dismissal of an envoy may be either gross misconduct on his part or a -quarrel between the sending and the receiving State which leads to a -rupture of diplomatic intercourse. Whenever such rupture takes place, -diplomatic relations between the two States come to an end and all -diplomatic privileges cease with the envoy's departing and crossing the -frontier. If the archives of the legations are not removed, they must be -put under seal by the departing envoy and confided to the -protection[765] of some other foreign legation. - -[Footnote 765: As regards the case of Montagnini, see above, [p][p] 106 and -386.] - -[Sidenote: Request for Passports.] - -[p] 412. Without being recalled, an envoy may on his own account ask for -his passports and depart in consequence of ill-treatment by the -receiving State. This may or may not lead to a rupture of diplomatic -intercourse. - -[Sidenote: Outbreak of War.] - -[p] 413. When war breaks out between the sending and the receiving State -before their envoys accredited to each other are recalled, their mission -nevertheless comes to an end. They receive their passports, but -nevertheless they must be granted their privileges[766] on their way -home. - -[Footnote 766: See below, vol. II. [p] 98.] - -[Sidenote: Constitutional Changes.] - -[p] 414. If the head of the sending or receiving State is a Sovereign, his -death or abdication terminates the missions sent and received by him, -and all envoys remaining at their posts must receive new Letters of -Credence. But if they receive new Letters of Credence, no change in -seniority is considered to have taken place from the order in force -before the change. And during the time between the termination of the -missions and the arrival of new Letters of Credence they enjoy -nevertheless all the privileges of diplomatic envoys. - -As regards the influence of constitutional changes in the headship of -republics on the missions sent or received, no certain rule exists.[767] -Everything depends, therefore, upon the merits of the special case. - -[Footnote 767: Writers on International Law differ concerning this -point. See, for instance, Ullmann, [p] 53, in contradistinction to Rivier, -I. p. 517.] - -[Sidenote: Revolutionary Changes of Government.] - -[p] 415. A revolutionary movement in the sending or receiving State which -creates a new government, changing, for example, a republic into a -monarchy or a monarchy into a republic, or deposing a Sovereign and -enthroning another, terminates the missions. All envoys remaining at -their posts must receive new Letters of Credence, but no change in -seniority takes place if they receive them. It happens that in cases of -revolutionary changes of government foreign States for some time neither -send new Letters of Credence to their envoys nor recall them, watching -the course of events in the meantime and waiting for more proof of a -real settlement. In such cases the envoys are, according to an -international usage, granted all privileges of diplomatic envoys, -although in strict law they have ceased to be such. In cases of recall -subsequent to revolutionary changes, the protection of subjects of the -recalling States remains in the hands of their consuls, since the -consular office[768] does not come to an end through constitutional or -revolutionary changes in the headship of a State. - -[Footnote 768: See below, [p] 438.] - -[Sidenote: Extinction of sending or receiving State.] - -[p] 416. If the sending or receiving State of a mission is extinguished by -voluntary merger into another State or through annexation in consequence -of conquest, the mission terminates _ipso facto_. In case of annexation -of the receiving State, there can be no doubt that, although the -annexing State will not consider the envoys received by the annexed -State as accredited to itself, it must grant those envoys the right to -leave the territory of the annexed State unmolested and to take their -archives away with them. In case of annexation of the sending State, the -question arises what becomes of the archives and legational property of -the missions of the annexed State accredited to foreign States. This -question is one on the so-called succession[769] of States. The annexing -State acquires, _ipso facto_, by the annexation the property in those -archives and other legational goods, such as the hotels, furniture, and -the like. But as long as the annexation is not notified and recognised, -the receiving States have no duty to interfere. - -[Footnote 769: See above, [p] 82.] - -[Sidenote: Death of Envoy.] - -[p] 417. A mission ends, lastly, by the death of the envoy. As soon as an -envoy is dead, his effects, and especially his papers, must be sealed. -This is done by a member of the dead envoy's legation, or, if there be -no such members, by a member of another legation accredited to the same -State. The local Government must not interfere, unless at the special -request by the home State of the deceased envoy. - -Although the mission and therefore the privileges of the envoy come to -an end by his death, the members of his family who resided under his -roof and the members of his suite enjoy their privileges until they -leave the country. But a certain time may be fixed for them to depart, -and on its expiration they lose their privilege of exterritoriality. It -must be specially mentioned that the Courts of the receiving State have -no jurisdiction whatever over the goods and effects of the deceased -envoy, and that no death duties can be demanded. - - - - -CHAPTER III - -CONSULS - - -I - -THE INSTITUTION OF CONSULS - - Hall, [p] 105--Phillimore, II. [p][p] 243-246--Halleck, I. p. - 369--Taylor, [p][p] 325-326--Twiss, I. [p] 223--Ullmann, [p][p] - 54-55--Bulmerincq in Holtzendorff, II. pp. 687-695--Heffter, [p][p] - 241-242--Rivier, I. [p] 41--Nys, II. pp. 394-399--Calvo, III. [p][p] - 1368-1372--Bonfils, Nos. 731-743--Pradier-Fodere, IV. [p][p] - 2034-2043--Martens, II. [p][p] 18-19--Fiore, II. Nos. - 1176-1178--Warden, "A Treatise on the Origin, Nature, &c., of the - Consular Establishment" (1814)--Miltitz, Manuel des Consuls, 5 - vols. (1837-1839)--Cussy, "Reglements consulaires des principaux - Etats maritimes" (1851)--H. B. Oppenheim, "Handbuch der Consulate - aller Laender" (1854)--Clercq et Vallat, "Guide pratique des - consulats" (5th ed. 1898)--Salles, "L'institution des consulats, - son origine, &c." (1898)--Chester Lloyd Jones, "The Consular - Service of the United States. Its History and Activities" - (1906)--Stowell, "Le Consul" (1909), and "Consular Cases and - Opinions, &c." (1910)--Pillaut, "Manuel de droit Consulaire" - (1910)--Jordan in R.I. 2nd Ser. VIII. (1906), pp. 479-507 and - 717-750. - -[Sidenote: Development of the Institution of Consuls.] - -[p] 418. The roots of the consular institution go back to the second half -of the Middle Ages. In the commercial towns of Italy, Spain, and France -the merchants used to appoint by election one or more of their -fellow-merchants as arbitrators in commercial disputes, who were called -_Juges Consuls_ or _Consuls Marchands_. When, between and after the -Crusades, Italian, Spanish, and French merchants settled down in the -Eastern countries, founding factories, they brought the institution of -consuls with them, the merchants belonging to the same nation electing -their own consul. The competence of these consuls became, however, more -and more enlarged through treaties, so-called "Capitulations," between -the home States of the merchants and the Mohammedan monarchs on whose -territories these merchants had settled down.[770] The competence of -consuls comprised at last the whole civil and criminal jurisdiction -over, and protection of, the privileges, the life, and the property of -their countrymen. From the East the institution of consuls was -transferred to the West. Thus, in the fifteenth century Italian consuls -existed in the Netherlands and in London, English consuls in the -Netherlands, Sweden, Norway, Denmark, Italy (Pisa). These consuls in the -West exercised, just as those in the East, exclusive civil and criminal -jurisdiction over the merchants of their nationality. But the position -of the consuls in the West decayed in the beginning of the seventeenth -century through the influence of the rising permanent legations on the -one hand, and, on the other, from the fact that everywhere foreign -merchants were brought under the civil and criminal jurisdiction of the -State in which they resided. This change in their competence altered the -position of consuls in the Christian States of the West altogether. -Their functions now shrank into a general supervision of the commerce -and navigation of their home States, and into a kind of protection of -the commercial interests of their countrymen. Consequently, they did not -receive much notice in the seventeenth and eighteenth centuries, and it -was not until the nineteenth century that the general development of -international commerce, navigation, and shipping drew the attention of -the Governments again to the value and importance of the institution of -consuls. The institution was now systematically developed. The position -of the consuls, their functions, and their privileges, were the subjects -of stipulations either in commercial treaties or in special consular -treaties,[771] and the several States enacted statutes regarding the -duties of their consuls abroad, such as the Consular Act passed by -England in 1826.[772] - -[Footnote 770: See Twiss, I. [p][p] 253-263.] - -[Footnote 771: Phillimore, II. [p] 255, gives a list of such treaties.] - -[Footnote 772: 6 Geo. IV. c. 87.] - -[Sidenote: General Character of Consuls.] - -[p] 419. Nowadays consuls are agents of States residing abroad for -purposes of various kinds, but mainly in the interests of commerce and -navigation of the appointing State. As they are not diplomatic -representatives, they do not enjoy the privileges of diplomatists. Nor -have they, ordinarily, anything to do with intercourse between their -home State and the State in which they reside. But these rules have -exceptions. Consuls of Christian Powers in non-Christian States, Japan -now excepted, have retained their former competence and exercise full -civil and criminal jurisdiction over their countrymen. And sometimes -consuls are charged with the tasks which are regularly fulfilled by -diplomatic representatives. Thus, in States under suzerainty the Powers -are frequently represented by consuls, who transact all the business -otherwise transacted by diplomatic representatives, and who have, -therefore, often the title of "Diplomatic Agents." Thus, too, on -occasions small States, instead of accrediting diplomatic envoys to -another State, send only a consul thither, who combines the consular -functions with those of a diplomatic envoy. It must, however, be -emphasised that consuls thereby neither become diplomatic envoys, -although they may have the title of "Diplomatic Agents," nor enjoy the -diplomatic envoys' privileges, if such privileges are not specially -provided for by treaties between the home State and the State in which -they reside. Different, however, is the case in which a consul is at the -same time accredited as Charge d'Affaires, and in which, therefore, he -combines two different offices; for as Charge d'Affaires he is a -diplomatic envoy and enjoys all the privileges of such an envoy, -provided he has received a Letter of Credence. - - -II - -CONSULAR ORGANISATION - - Hall, "Foreign Powers and Jurisdiction," [p] 13--Phillimore, II. [p][p] - 253-254--Halleck, I. p. 371--Taylor, [p] 528--Moore, V. [p] - 696--Ullmann, [p] 57--Bulmerincq in Holtzendorff, III. pp. - 695-701--Rivier, I. [p] 41--Calvo, III. [p][p] 1373-1376--Bonfils, Nos. - 743-748--Pradier-Fodere, IV. [p][p] 2050-2055--Merignhac, II. pp. - 320-333--Martens, II. [p] 20--Stowell, "Le Consul," pp. - 186-206--"General Instructions for His Majesty's Consular - Officers" (1907). - -[Sidenote: Different kinds of Consuls.] - -[p] 420. Consuls are of two kinds. They are either specially sent and paid -for the administration of their consular office (_Consules missi_), or -they are appointed from individuals, in most cases merchants, residing -in the district for which they are to administer the consular office -(_Consules electi_).[773] Consuls of the first kind, who are so-called -professional consuls and are always subjects of the sending State, have -to devote their whole time to the consular office. Consuls of the second -kind, who may or may not be subjects of the sending State, administer -the consular office besides following their ordinary callings. Some -States, such as France, appoint professional consuls only; most States, -however, appoint Consuls of both kinds according to the importance of -the consular districts. But there is a general tendency with most States -to appoint professional consuls for important districts. - -[Footnote 773: To this distinction corresponds in the British Consular -Service the distinction between "Consular Officers" and "Trading -Consular Officers."] - -No difference exists between the two kinds of consuls as to their -general position according to International Law. But, naturally, a -professional consul enjoys actually a greater authority and a more -important social position, and consular treaties often stipulate special -privileges for professional consuls. - -[Sidenote: Consular Districts.] - -[p] 421. As the functions of consuls are of a more or less local -character, most States appoint several consuls on the territory of other -larger States, limiting the duties of the several consuls within -certain districts of such territories or even within a certain town or -port only. Such consular districts as a rule coincide with provinces of -the State in which the consuls administer their offices. The different -consuls appointed by a State for different districts of the same State -are independent of each other and conduct their correspondence directly -with the Foreign Office of their home State, the agents-consular -excepted, who correspond with their nominators only. The extent of the -districts is agreed upon between the home State of the consul and the -admitting State. Only the consul appointed for a particular district is -entitled to exercise consular functions within its boundaries, and to -him only the local authorities have to grant the consular privileges, if -any. - -[Sidenote: Different Classes of Consuls.] - -[p] 422. Four classes of consuls are generally distinguished according to -rank: consuls-general, consuls, vice-consuls, and agents-consular. -Consuls-general are appointed either as the head of several consular -districts, and have then several consuls subordinate to themselves, or -as the head of one very large consular district. Consuls are usually -appointed for smaller districts, and for towns or even ports only. -Vice-consuls are such assistants of consuls-general and consuls as -themselves possess the consular character and take, therefore, the -consul's place in regard to the whole consular business; they are, -according to the Municipal Law of some States, appointed by the consul, -subject to the approbation of his home State. Agents-consular are agents -with consular character, appointed, subject to the approbation of the -home Government, by a consul-general or consul for the exercise of -certain parts of the consular functions in certain towns or other places -of the consular district. Agents-consular are not independent of the -appointing consul, and do not correspond directly with the home State, -as the appointing consul is responsible to his Government for the -agents-consular. The so-called Proconsul is not a consul, but a _locum -tenens_ of a consul only during the latter's temporary absence or -illness; he possesses, therefore, consular character for such time only -as he actually is the _locum tenens_. - -The British Consular Service consists of the following six ranks: (1) -Agents and consuls-general, commissioners and consuls-general; (2) -consuls-general; (3) consuls; (4) vice-consuls; (5) consular agents; (6) -proconsuls. In the British Consular Service pro-consuls only exercise, -as a rule, the notarial functions of a consular officer. - -[Sidenote: Consuls subordinate to Diplomatic Envoys.] - -[p] 423. Although consuls conduct their correspondence directly with their -home Government, they are nevertheless, subordinate to the diplomatic -envoy of their home Government accredited to the State in which they -administer the consular offices. According to the Municipal Law of -almost every State except the United States of America, the diplomatic -envoy has full authority and control over the consuls. He can give -instructions and orders, which they have to execute. In doubtful cases -they have to ask his advice and instructions. On the other hand, the -diplomatic envoy has to protect the consuls in case they are injured by -the local Government. - - -III - -APPOINTMENT OF CONSULS - - Hall, [p] 105--Phillimore, II. [p] 250--Halleck, I. p. 371--Moore, V. - [p][p] 697-700--Ullmann, [p] 58--Bulmerincq in Holtzendorff, III. pp. - 702-706--Rivier, I. [p] 41--Nys, II. p. 400--Calvo, III. [p][p] - 1378-1384--Bonfils, Nos. 749-752--Pradier-Fodere, IV. [p][p] - 2056-2067--Fiore, II. Nos. 1181-1182--Martens, II. [p] 21--Stowell, - "Le Consul," pp. 207-216. - -[Sidenote: Qualification of Candidates.] - -[p] 424. International Law has no rules in regard to the qualifications of -an individual whom a State can appoint consul. Many States, however, -possess such rules in their Municipal Law as far as professional -consuls are concerned. The question, whether female consuls could be -appointed, cannot be answered in the negative, but, on the other hand, -no State is obliged to grant female consuls the _exequatur_, and many -States would at present certainly refuse it. - -[Sidenote: No State obliged to admit Consuls.] - -[p] 425. According to International Law a State is not at all obliged to -admit consuls. But the commercial interests of all the States are so -powerful that practically every State must admit consuls of foreign -Powers, as a State which refused such admittance would in its turn not -be allowed to have its own consuls abroad. The commercial and consular -treaties between two States stipulate as a rule that the contracting -States shall have the right to appoint consuls in all those parts of -each other's country in which consuls of third States are already or -shall in future be admitted. Consequently a State cannot refuse -admittance to a consul of one State for a certain district if it admits -a consul of another State. But as long as a State has not admitted any -other State's consul for a district, it can refuse admittance to a -consul of the State anxious to organise consular service in that -district. Thus, for instance, Russia refused for a long time for -political reasons to admit consuls in Warsaw. - -[Sidenote: What kind of States can appoint Consuls.] - -[p] 426. There is no doubt that it is within the faculty of every -full-Sovereign State to appoint consuls. As regards not full-Sovereign -States, everything depends upon the special case. As foreign States can -appoint consuls in States under suzerainty, it cannot be doubted that, -provided the contrary is not specially stipulated between the vassal and -the suzerain State, and provided the vassal State is not one which has -no position within the Family of Nations,[774] a vassal State is in its -turn competent to appoint consuls in foreign States. In regard to -member-States of a Federal State it is the Constitution of the Federal -State which settles the question. Thus, according to the Constitution of -Germany, the Federal State is exclusively competent to appoint consuls, -in contradistinction to diplomatic envoys who may be sent and received -by every member-State of the German Empire. - -[Footnote 774: See above, [p] 91.] - -[Sidenote: Mode of Appointment and of Admittance.] - -[p] 427. Consuls are appointed through a patent or commission, the -so-called _Lettre de provision_, of the State whose consular office they -are intended to administer. Vice-consuls are sometimes, and -agents-consular are always, appointed by the consul, subject to the -approval of the home State. Admittance of consuls takes place through -the so-called _exequatur_, granted by the head of the admitting -State.[775] The diplomatic envoy of the appointing State hands the -patent of the appointed consul on to the Secretary for Foreign Affairs -for communication to the head of the State, and the _exequatur_ is given -either in a special document or by means of the word _exequatur_ written -across the patent. But the _exequatur_ can be refused for personal -reasons. Thus, in 1869 England refused the _exequatur_ to an Irishman -named Haggerty, who was naturalised in the United States and appointed -American consul for Glasgow. And the _exequatur_ can be withdrawn for -personal reasons at any moment. Thus, in 1834 France withdrew it from -the Prussian consul at Bayonne for having helped in getting into Spain -supplies of arms for the Carlists. - -[Footnote 775: That, in case a consul is appointed for a State which is -under the protectorate of another, it is within the competence of the -latter to grant or refuse the _exequatur_, has been pointed out above, [p] -92, p. 144, note 4.] - -[Sidenote: Appointment of Consuls includes Recognition.] - -[p] 428. As the appointment of consuls takes place in the interests of -commerce, industry, and navigation, and has merely local importance -without political consequences, it is maintained[776] that a State does -not indirectly recognise a newly created State _ipso facto_ by -appointing a consul to a district in such State. This opinion, however, -does not agree with the facts of international life. Since no consul can -exercise his functions before he has handed over his patent to the local -State and received the latter's _exequatur_, it is evident that thereby -the appointing State enters into such formal intercourse with the -admitting State as indirectly[777] involves recognition. But it is only -if consuls are formally appointed and formally receive the _exequatur_ -on the part of the receiving State, that indirect recognition is -involved. If, on the other hand, no formal[778] appointment is made, and -no formal _exequatur_ is asked for and received, foreign individuals may -actually with the consent of the local State exercise the functions of -consuls without recognition following therefrom. Such individuals are -not really consuls, although the local State allows them for political -reasons to exercise consular functions. - -[Footnote 776: Hall, [p][p] 26* and 105, and Moore, I. [p] 72.] - -[Footnote 777: See above, [p] 72.] - -[Footnote 778: The case mentioned by Hall, [p] 26*, of Great Britain -appointing, in 1823, consuls to the South American Republics, without -gazetting the various consuls and--as must be presumed--without the -individuals concerned asking formally for the _exequatur_ of the various -South American States, would seem to be a case of informal appointment.] - - -IV - -FUNCTIONS OF CONSULS - - Hall, [p] 105--Phillimore, II. [p][p] 257-260--Taylor, [p] 327--Halleck, - I. pp. 380-385--Moore, V. [p][p] 717-731--Ullmann, [p] 61--Bulmerincq in - Holtzendorff, III. pp. 738-749--Rivier, I. [p] 42--Calvo, III. [p][p] - 1421-1429--Bonfils, Nos. 762-771--Pradier-Fodere, IV. [p][p] - 2069-2113--Fiore, II. Nos. 1184-1185--Martens, II. [p] 23--Stowell, - "Le Consul," pp. 15-136. - -[Sidenote: On Consular Functions in general.] - -[p] 429. Although consuls are appointed chiefly in the interest of -commerce, industry, and navigation, they are nevertheless charged with -various functions for other purposes. Custom, commercial and consular -treaties, Municipal Laws, and Municipal Consular Instructions contain -detailed rules in regard to these functions. They may be grouped under -the heads of fosterage of commerce and industry, supervision of -navigation, protection, notarial functions. - -[Sidenote: Fosterage of Commerce and Industry.] - -[p] 430. As consuls are appointed in the interest of commerce and -industry, they must be allowed by the receiving State to watch over the -execution of the commercial treaties of their home State, to send -reports to the latter in regard to everything which can influence the -development of its commerce and industry, and to give such information -to merchants and manufacturers of the appointing State as is necessary -for the protection of their commercial interests. Municipal Laws of the -several States and their Consular Instructions comprise detailed rules -on these consular functions, which are of the greatest importance. -Consular reports, on the one hand, and consular information to members -of the commercial world, on the other, have in the past and the present -rendered valuable assistance to the development of commerce and industry -of their home States. - -[Sidenote: Supervision of Navigation.] - -[p] 431. Another task of consuls consists in supervision of the navigation -of the appointing State. A consul at a port must be allowed to keep his -eye on all merchantmen sailing under the flag of his home State which -enter the port, to control and legalise their ship papers, to exercise -the power of inspecting them on their arrival and departure, to settle -disputes between the master and the crew or the passengers. He assists -sailors in distress, undertakes the sending home of shipwrecked crews -and passengers, attests averages. It is neither necessary nor possible -to enumerate all the duties and powers of consuls in regard to -supervision of navigation. Consular and commercial treaties, on the one -hand, and, on the other, Municipal Laws and Consular Instructions, -comprise detailed rules regarding these consular functions. It should, -however, be added that consuls must assist in every possible way any -public vessel of their home State which enters their port, if the -commander so requests. But consuls have no power of supervision over -such public vessels. - -[Sidenote: Protection.] - -[p] 432. The protection which consuls must be allowed by the receiving -State to provide for subjects of the appointing State is a very -important task. For that purpose consuls keep a register, in which these -subjects can have their names and addresses recorded. Consuls make out -passports, they have to render a certain assistance and help to paupers -and the sick, and to litigants before the Courts. If a foreign subject -is wronged by the local authorities, his consul has to give him advice -and help, and has eventually to interfere on his behalf. If a foreigner -dies, his consul may be approached for securing his property and for -rendering all kind of assistance and help to the family of the deceased. - -As a rule, a consul exercises protective functions over subjects of the -appointing State only; but the latter may charge him with the protection -of subjects of other States which have not nominated a consul for his -district. - -[Sidenote: Notarial Functions.] - -[p] 433. Very important are the notarial and the like functions with which -consuls are charged. They attest and legalise signatures, examine -witnesses and administer oaths for the purpose of procuring evidence for -the Courts and other authorities of the appointing State. They conclude -or register marriages of the latter's subjects, take charge of their -wills, legalise their adoptions, register their births and deaths. They -provide authorised translations for local as well as for home -authorities, and furnish attestations of many kinds. All consular -functions of this kind are specialised by Municipal Laws and Consular -Instructions. But it should be specially observed that whereas fosterage -of commerce, supervision of navigation, and protection are functions -the exercise of which must, according to a customary rule of -International Law, be granted to consuls by receiving States, many of -their notarial functions need not be permitted by such receiving States -in the absence of treaty stipulations. - - -V - -POSITION AND PRIVILEGES OF CONSULS - - Hall, [p] 105--Phillimore, II. [p][p] 261-271--Halleck, I. pp. - 371-379--Taylor, [p][p] 326, 332-333--Moore, V. [p][p] 702-716--Ullmann, - [p][p] 60 and 62--Bulmerincq in Holtzendorff, III. pp. - 710-720--Rivier, I. [p] 42--Calvo, III. [p][p] 1385-1420--Bonfils, Nos. - 753-761--Pradier-Fodere, IV. [p][p] 2114-2121--Fiore, II. No. - 1183--Martens, II. [p] 22--Bodin, "Les immunites consulaires" - (1899)--Stowell, "Le Consul," pp. 137-185. - -[Sidenote: Position.] - -[p] 434. Like diplomatic envoys, consuls are simply objects of -International Law. Such rights as they have are granted to them by -Municipal Laws in compliance with rights of the appointing States -according to International Law.[779] As regards their position, it -should nowadays be an established and uncontested fact that consuls do -not enjoy the position of diplomatic envoys, since no Christian State -actually grants to foreign consuls the privileges of diplomatic agents. -On the other hand, it would be incorrect to maintain that their position -is in no way different from that of any other individual living within -the consular district. Since they are appointed by foreign States and -have received the _exequatur_, they are publicly recognised by the -admitting State as agents of the appointing State. Of course, consuls -are not diplomatic representatives, for they do not represent the -appointing States in the totality of their international relations, but -for a limited number of tasks and for local purposes only. Yet they -bear a recognised public character, in contradistinction to mere private -individuals, and, consequently, their position is different from that of -mere private individuals. This is certainly the case with regard to -professional consuls, who are officials of their home State and are -specially sent to the foreign State for the purpose of administering the -consular office. But in regard to non-professional consuls it must -likewise be maintained that the admitting State by granting the -_exequatur_ recognises their official position towards itself, which -demands at least a special protection[780] of their persons and -residences. The official position of consuls, however, does not involve -direct intercourse with the Government of the admitting State. Consuls -are appointed for _local_ purposes only, and they have, therefore, -direct intercourse with the _local authorities_ only. If they want to -approach the Government itself, they can do so only through the -diplomatic envoy, to whom they are subordinate. - -[Footnote 779: See above, [p] 384.] - -[Footnote 780: According to British and American practice a consul of a -neutral Power accredited to the enemy State who embarks upon mercantile -ventures, is not by his official position protected against seizure of -his goods carried by enemy vessels, for by trading in the enemy country -he acquires to a certain extent enemy character; see the case of the -Indian Chief, 3 C. Rob. 12.] - -[Sidenote: Consular Privileges.] - -[p] 435. From the undoubted official position of consuls no universally -recognised privileges of importance emanate as yet. Apart from the -special protection due to consuls according to International Law, there -is neither a custom nor a universal agreement between the Powers to -grant them important privileges. Such privileges as consuls actually -enjoy are granted to them either by courtesy or in compliance with -special stipulations of a Commercial or Consular Treaty between the -sending and the admitting State. I doubt not that in time the Powers -will agree upon a universal treaty in regard to the position and -privileges of consuls.[781] Meanwhile, it is of interest to take notice -of some of the more important stipulations which are to be found in the -innumerable treaties between the several States in regard to consular -privileges: - -[Footnote 781: The Institute of International Law at its meeting at -Venice in 1896 adopted a _Reglement sur les immunites consulaires_ -comprising twenty-one articles. See Annuaire, XV. p. 304.] - -(1) A distinction is very often made between professional and -non-professional consuls in so far as the former are accorded more -privileges than the latter. - -(2) Although consuls are not exempt from the local civil and criminal -jurisdiction, the latter is in regard to professional consuls often -limited to crimes of a more serious character. - -(3) In many treaties it is stipulated that consular archives shall be -inviolable from search or seizure. Consuls are therefore obliged to keep -their official documents and correspondence separate from their private -papers. - -(4) Inviolability of the consular buildings is also sometimes -stipulated, so that no officer of the local police, Courts, and so on, -can enter these buildings without special permission of the consul. But -it is then the duty of consuls to surrender criminals who have taken -refuge in these buildings. - -(5) Professional consuls are often exempt from all kinds of rates and -taxes, from the liability to have soldiers quartered in their houses, -and from the duty to appear in person as witnesses before the Courts. In -the latter case consuls have either to send in their evidence in -writing, or their evidence may be taken by a commission on the premises -of the consulate. - -(6) Consuls of all kinds have the right to put up the arms of the -appointing State over the door of the consular building and to hoist the -national flag. - - -VI - -TERMINATION OF CONSULAR OFFICE - - Hall, [p] 105--Moore, V. [p] 701--Ullmann, [p] 59--Bulmerincq in - Holtzendorff, III. p. 708--Rivier, I. [p] 41--Calvo, III. [p][p] 1382, - 1383, 1450--Bonfils, No. 775--Fiore, II. No. 1187--Martens, II. [p] - 21--Stowell "Le Consul," pp. 217-222. - -[Sidenote: Undoubted Causes of Termination.] - -[p] 436. Death of the consul, withdrawal of the _exequatur_, recall or -dismissal, and, lastly, war between the appointing and the admitting -State, are universally recognised causes of termination of the consular -office. When a consul dies or war breaks out, the consular archives must -not be touched by the local authorities. They remain either under the -care of an _employe_ of the consulate, or a consul of another State -takes charge of them until the successor of the deceased arrives or -peace is concluded. - -[Sidenote: Doubtful Causes of Termination.] - -[p] 437. It is not certain in practice whether the office of a consul -terminates when his district, through cession, conquest followed by -annexation, or revolt, becomes the property of another State. The -question ought to be answered in the affirmative, because the -_exequatur_ given to such consul originates from a Government which then -no longer possesses the territory. A practical instance of this question -occurred in 1836, when Belgium, which was then not yet recognised by -Russia, declared that she would henceforth no longer treat the Russian -consul Aegi at Antwerp as consul, because he was appointed before the -revolt and had his _exequatur_ granted by the Government of the -Netherlands. Although Belgium gave way in the end to the urgent -remonstrances of Russia, her original attitude was legally correct. - -[Sidenote: Change in the Headship of States not Cause of Termination.] - -[p] 438. It is universally recognised that, in contradistinction to a -diplomatic mission, the consular office does not come to an end through -a change in the headship of the appointing or the admitting State. -Neither a new patent nor a new _exequatur_ is therefore necessary -whether another king comes to the throne or a monarchy turns into a -republic, or in any like case. - - -VII - -CONSULS IN NON-CHRISTIAN STATES - - Tarring, "British Consular Jurisdiction in the East" (1887)--Hall, - "Foreign Powers and Jurisdiction," [p][p] 64-85--Halleck, I. pp. - 385-398--Phillimore, II. [p][p] 272-277--Taylor, [p][p] - 331-333--Twiss, I. [p] 136--Wheaton, [p] 110--Ullmann, [p][p] - 63-65--Bulmerincq in Holtzendorff, III. pp. 720-738--Rivier, I. - [p] 43--Nys, II. pp. 400-414--Calvo, III. [p][p] - 1431-1449--Bonfils, Nos. 776-791--Pradier-Fodere, IV. - 2122-2138--Merignhac, II. pp. 338-351--Martens, II. [p][p] - 24-26--Martens, "Konsularwesen und Konsularjurisdiction im Orient" - (German translation from the Russian original by Skerst, - 1874)--Bruillat, "Etude historique et critique sur les - juridictions consulaires" (1898)--Lippmann, "Die - Konsularjurisdiction im Orient" (1898)--Verge, "Des consuls dans - les pays d'occident" (1903)--Hinckley, "American Consular - Jurisdiction in the Orient" (1906)--Piggott, "Exterritoriality. - The Law relating to Consular Jurisdiction, &c. in Oriental - Countries" (new edition, 1907)--Mandelstam, "La justice ottomane - dans ses rapports avec les puissances etrangeres" (1911), and in - R.G. XIV. (1907), pp. 5 and 534, and XV. (1908), pp. 329-384. - -[Sidenote: Position of Consuls in non-Christian States.] - -[p] 439. Fundamentally different from the regular position is that of -consuls in non-Christian States, with the single exception of Japan. In -the Christian countries of the West alone consuls have, as has been -stated before ([p] 418), lost jurisdiction over the subjects of the -appointing States. In the Mohammedan States consuls not only retained -their original jurisdiction, but the latter became by-and-by so extended -through the so-called Capitulations that the competence of consuls soon -comprised the whole civil and criminal jurisdiction, the power of -protection of the privileges, the life, and property of their -countrymen, and even the power to expel one of their countrymen for bad -conduct. And custom and treaties secured to consuls inviolability, -exterritoriality, ceremonial honours, and miscellaneous other rights, so -that there is no doubt that their position is materially the same as -that of diplomatic envoys. From the Mohammedan countries this position -of consuls has been extended and transferred to China, Japan, Persia, -and other non-Christian countries, but in Japan the position of consuls -shrank in 1899 into that of consuls in Christian States. - -[Sidenote: Consular Jurisdiction in non-Christian States.] - -[p] 440. International custom and treaties lay down the rule only that all -the subjects of Christian States residing in non-Christian States shall -remain under the jurisdiction of the home State as exercised by their -consuls.[782] It is a matter for the Municipal Laws of the several -Christian States to organise this consular jurisdiction. All States have -therefore enacted statutes dealing with this matter. As regards Great -Britain, several Orders in Council and the Foreign Jurisdiction Act (53 -& 54 Vict., c. 37) of 1890 are now the legal basis of the consular -jurisdiction.[783] The working of this consular jurisdiction is, -however, not satisfactory in regard to the so-called mixed cases. As the -national consul has exclusive jurisdiction over the subjects of his home -State, he exercises this jurisdiction also in cases in which the -plaintiff is a native or a subject of another Christian State, and which -are therefore called mixed cases. - -[Footnote 782: See above, [p] 318.] - -[Footnote 783: See Piggott, _op. cit._] - -[Sidenote: International Courts in Egypt.] - -[p] 441. To overcome in some points the disadvantages of the consular -jurisdiction, an interesting experiment is being made in Egypt. On the -initiative of the Khedive, most of the Powers in 1875 agreed upon an -organisation of International Courts in Egypt for mixed cases.[784] -These Courts began their functions in 1876. They are in the main -competent for mixed civil cases, mixed criminal cases of importance -remaining under the jurisdiction of the national consuls. There are -three International Courts of first instance--namely, at Alexandria, -Cairo, and Ismailia (formerly at Zagazig), and one International Court -of Appeal at Alexandria. The tribunals of first instance are each -composed of three natives and four foreigners, the Court of Appeal is -composed of four natives and seven foreigners. - -[Footnote 784: See Holland, "The European Concert in the Eastern -Question," pp. 101-102; Scott, "The Law Affecting Foreigners in Egypt as -the Result of the Capitulations" (1907); Goudy in _The Law Quarterly -Review_, XXIII. (1907), pp. 409-413.] - -[Sidenote: Exceptional Character of Consuls in non-Christian States.] - -[p] 442. There is no doubt that the present position of consuls in -non-Christian States is in every point an exceptional one, which does -not agree with the principles of International Law otherwise universally -recognised. But the position is and must remain a necessity as long as -the civilisation of non-Christian States has not developed their ideas -of justice in accordance with Christian ideas, so as to preserve the -life, property, and honour of foreigners before native Courts. The case -of Japan is an example of the readiness of the Powers to consent to the -withdrawal of consular jurisdiction in non-Christian States as soon as -they have reached a certain level of civilisation. - - - - -CHAPTER IV - -MISCELLANEOUS AGENCIES - - -I - -ARMED FORCES ON FOREIGN TERRITORY - - Hall, [p][p] 54, 56, 102--Lawrence, [p] 107--Halleck, I. pp. - 477-479--Phillimore, I. [p] 341--Taylor, [p] 131--Twiss, I. [p] - 165--Wheaton, [p] 99--Moore, II. [p] 251--Westlake, I. p. 255--Stoerk - in Holtzendorff, II. pp. 664-666--Rivier, I. pp. 333-335--Calvo, - III. [p] 1560--Fiore, I. Nos. 528-529. - -[Sidenote: Armed Forces State Organs.] - -[p] 443. Armed forces are organs of the State which maintains them, -because such forces are created for the purpose of maintaining the -independence, authority, and safety of the State. And in this respect it -matters not whether armed forces are at home or abroad, for they are -organs of their home State even when on foreign territory, provided only -they are there in the service of their State and not for their own -purposes. For if a body of armed soldiers enters foreign territory -without orders from, or without being otherwise in the service of, its -State, but on its own account, be it for pleasure or for the purpose of -committing acts of violence, it is no longer an organ of its State. - -[Sidenote: Occasions for Armed Forces abroad.] - -[p] 444. Besides war, there are several occasions for armed forces to be -on foreign territory in the service of their home State. Thus, a State -may have a right to keep troops in a foreign fortress or to send troops -through foreign territory. Thus, further, a State which has been -victorious in war with another may, after the conclusion of peace, -occupy a part of the territory of its former opponent as a guarantee for -the execution of the Treaty of Peace. After the Franco-German war, for -example, the Germans in 1871 occupied a part of the territory of France -until the final instalments of the indemnity for the war costs of five -milliards of francs were paid. It may also be a case of necessity for -the armed forces of a State to enter foreign territory and commit acts -of violence there, such as the British did in the case of the -_Caroline_.[785] - -[Footnote 785: See above, [p] 133, and below, [p] 446.] - -[Sidenote: Position of Armed Forces abroad.] - -[p] 445. Whenever armed forces are on foreign territory in the service of -their home State, they are considered exterritorial and remain, -therefore, under the jurisdiction of the latter. A crime committed on -foreign territory by a member of the force cannot be punished by the -local civil or military authorities, but only by the commanding officer -of the forces or by other authorities of its home State.[786] This is, -however, valid only in case the crime is committed either within the -place where the force is stationed, or anywhere else where the criminal -was on duty. If, for example, soldiers belonging to a foreign garrison -of a fortress leave the _rayon_ of the latter, not on duty but for -recreation and pleasure, and then and there commit a crime, the local -authorities are competent to punish them. - -[Footnote 786: This is nowadays the opinion of the vast majority of -writers on International Law. There are, however, still a few dissenting -authorities, such as Bar ("Lehrbuch des internationalen Privat- und -Strafrecht" (1892), p. 351), and Rivier (I. p. 333).] - -[Sidenote: Case of McLeod.] - -[p] 446. An excellent example of the position of armed forces abroad is -furnished by the case of McLeod,[787] which occurred in 1841. Alexander -McLeod, who was a member of the British force sent by the Canadian -Government in 1837 into the territory of the United States for the -purpose of capturing the _Caroline_, a boat equipped for crossing into -Canadian territory and taking help to the Canadian insurgents, came in -1841 on business to the State of New York, and was arrested and indicted -for the killing of one Amos Durfee, a citizen of the United States, on -the occasion of the capture of the _Caroline_. The English Ambassador at -Washington demanded the release of McLeod, on the ground that he was at -the time of the alleged crime a member of a British armed force sent -into the territory of the United States by the Canadian Government -acting in a case of necessity. McLeod was not released, but had to take -his trial; he was, however, acquitted on proof of an alibi. It is of -importance to quote a passage in the reply of Mr. Webster, the Secretary -of Foreign Affairs of the United States, to a note of the British -Ambassador concerning this affair. The passage runs thus:--"The -Government of the United States entertains no doubt that, after the -avowal of the transaction as a public transaction, authorised and -undertaken by the British authorities, individuals concerned in it ought -not ... to be holden personally responsible in the ordinary tribunals -for their participation in it." - -[Footnote 787: See Wharton, I. [p] 21, and Moore, II. [p] 179.] - -[Sidenote: The Casa Blanca Incident.] - -[p] 446_a_. Another interesting example is the Casa Blanca incident. On -September 25, 1908, six soldiers--three of them Germans--belonging to -the French Foreign Legion which formed part of the French troops at -Morocco, deserted at Casa Blanca and asked for and obtained the -protection of the local German consul, who intended to take them on -board a German vessel lying in the harbour of Casa Blanca. On their way -to the ship, however, they were forcibly taken by the French out of the -custody of the secretary of the German Consulate and a native soldier in -the service of the consulate who were conducting them. Considering all -Germans in Morocco without exception exterritorial and under the -exclusive jurisdiction of her consul, Germany complained of this act of -force and demanded that those of the deserters concerned who were German -subjects should be given up to her by France, acknowledging the fact -that the consul had no right to extend his protection to other than -German subjects. France refused to concede this demand, maintaining that -the individuals concerned had even after their desertion remained under -the exclusive jurisdiction of their corps, which formed part of a French -force occupying foreign territory. As the parties could not settle the -conflict diplomatically, they agreed, on November 24, 1908, to bring it -before the Hague Court of Arbitration, which gave its award[788] on May -22, 1909, on the whole in favour of France. The Court considered: that -there was a conflict of jurisdiction with regard to the German deserters -because they were as German subjects under the exclusive jurisdiction of -the German Consulate, but as deserters from the French Foreign Legion -under the exclusive jurisdiction of the French Army of Occupation; that -under the circumstances of the case the jurisdiction of the Army of -Occupation should have the preference; that nevertheless the German -consul was not to be blamed for his action on account of the fact that -in a country granting exterritorial jurisdiction to foreigners the -question of the respective competency of the consular jurisdiction and -of the jurisdiction of an Army of Occupation was very complicated and -had never been settled in an express, distinct, and universally -recognised manner; that, since the German deserters were found at the -port under the actual protection of the German Consulate and this -protection was not manifestly illegal, the actual situation should, as -far as possible, have been respected by the French military authority; -that therefore the French military authorities ought to have confined -themselves to preventing the embarkation and escape of the deserters, -and, before proceeding to their arrest and imprisonment, to have offered -to leave them in sequestration of the German Consulate until the -question of the competent jurisdiction had been decided. The Court did -not, however, decree the restitution on the part of France of the three -German deserters to Germany.[789] - -[Footnote 788: See Martens, N.R.G. 3rd Ser. II. (1910), p. 19. An -English translation of the Award is printed in A.J. III. (1909), p. -755.] - -[Footnote 789: The ambiguity of the award has justly been severely -criticised. If, as the Court correctly asserts, the jurisdiction of an -Army of Occupation must prevail over the jurisdiction of a consul over -his nationals in a country granting exterritorial jurisdiction, a -decision of the conflict on mere legal grounds would have to be entirely -in favour of France, for it is difficult to see how a wrongfully -acquired and illegally asserted protection can create any obligation on -the part of those who are exclusively competent to exercise -jurisdiction. But it is a well-known fact that Courts of Arbitration -frequently endeavour to give an award which satisfies both parties and -the ambiguity of the award in the Casa Blanca incident is manifestly due -to this fact. The award is not of such a kind as one would expect from a -Court of Justice, although it may be an excellent specimen of an -arbitral decision. See A.J. III. (1909), pp. 698-701.] - - -II - -MEN-OF-WAR IN FOREIGN WATERS - - Hall, [p][p] 54-55--Halleck, I. pp. 215-230--Lawrence, [p][p] - 107-109--Phillimore, II. [p][p] 344-350--Westlake, pp. - 256-259--Taylor, [p] 261--Moore, II. [p][p] 252-256--Twiss, I. [p] - 165--Wheaton, [p] 100--Bluntschli, [p] 321--Stoerk in Holtzendorff, - II. pp. 434 and 446--Perels, [p][p] 11, 14, 15--Heilborn, "System," - pp. 248-279--Rivier, I. pp. 333-335--Bonfils, Nos. - 614-623--Merignhac, II. pp. 554-564--Calvo, III. [p][p] - 1550-1559--Fiore, I. Nos. 547-550--Testa, p. 86--Jordan, R.I. 2nd - Ser. X. (1908), p. 343. - -[Sidenote: Men-of-war State Organs.] - -[p] 447. Men-of-war are State organs just as armed forces are, a -man-of-war being in fact a part of the armed forces of a State. And -respecting their character as State organs, it matters nought whether -men-of-war are at home or in foreign territorial waters or on the High -Seas. But it must be emphasised that men-of-war are State organs only as -long as they are manned and under the command of a responsible officer, -and, further, as long as they are in the service of a State. A -shipwrecked man-of-war abandoned by her crew is no longer a State organ, -nor does a man-of-war in revolt against her State and sailing for her -own purposes retain her character as an organ of a State. On the other -hand, public vessels in the service of the police and the Custom House -of a State; further, private vessels chartered by a State for the -transport of troops and war materials; and, lastly, vessels carrying a -head of a State and his suite exclusively, are also considered State -organs, and are, consequently, in every point treated as though they -were men-of-war. - -[Sidenote: Proof of Character as Men-of-war.] - -[p] 448. The character of a man-of-war or of any other vessel treated as a -man-of-war is, in the first instance, proved by their outward -appearance, such vessels flying the war flag and the pennant of their -State.[790] If, nevertheless, the character of the vessel seems -doubtful, her commission, duly signed by the authorities of the State -which she appears to represent, supplies a complete proof of her -character as a man-of-war. And it is by no means necessary to prove that -the vessel is really the property of the State, the commission being -sufficient evidence of her character. Vessels chartered by a State for -the transport of troops or for the purpose of carrying its head are -indeed not the property of such State, although they bear, by virtue of -their commission, the same character as men-of-war.[791] - -[Footnote 790: Attention ought to be drawn here to Convention VII. -(concerning the conversion of merchant-ships into war-ships) of the -second Hague Peace Conference of 1907. Although this convention concerns -the time of war only, it is indirectly of importance for the time of -peace. Its stipulations are the following:--No merchant-ship converted -into a war-ship can have the rights and duties appertaining to that -status unless it is placed under the direct authority, immediate -control, and responsibility of the Power whose flag it flies (art. 1). -Merchant-ships converted into war-ships must bear the external marks -which distinguish the war-ships of their nationality (art. 2). The -commander must be in the service of the State and duly commissioned by -the proper authorities. His name must figure on the list of the officers -of the military fleet (art. 3). The crew must be subject to the rules of -military discipline (art. 4). Every merchant-ship converted into a -war-ship is bound to observe, in its operations, the laws and customs of -war (art. 5). A belligerent who converts a merchant-ship into a war-ship -must, as soon as possible, announce such conversion in the list of the -ships of its military fleet (art. 6).] - -[Footnote 791: Privateers used to enjoy the same character and -exemptions as men-of-war.] - -[Sidenote: Occasions for Men-of-war abroad.] - -[p] 449. Whereas armed forces in time of peace have no occasion to be -abroad, cases of a special right from a convention and cases of -necessity excepted, men-of-war of all maritime States possessing a navy -are constantly crossing the High Seas in all parts of the world for all -kinds of purposes. Occasions for men-of-war to sail through foreign -territorial waters and to enter foreign ports necessarily arise -therefrom. And a special convention between the flag-State and the -littoral State is not necessary to enable a man-of-war to enter and sail -through foreign territorial waters and to enter a foreign port. All -territorial waters and ports of the civilised States are, as a rule, -quite as much open to men-of-war as to merchantmen of all nations, -provided they are not excluded by special international stipulations or -special Municipal Laws of the littoral States. On the other hand, it -must be emphasised that, provided special international stipulations or -special treaties between the flag-State and the littoral State do not -prescribe the contrary in regard to one port or another and in regard to -certain territorial waters, a State is in strict law always competent to -exclude men-of-war from all or certain of its ports, and from those -territorial waters which do not serve as highways for international -traffic.[792] And a State is, further, always competent to impose what -conditions it thinks necessary upon men-of-war which it allows to enter -its ports, provided these conditions do not deny to men-of-war their -universally recognised privileges. - -[Footnote 792: The matter is controversial. See above, [p] 188, and -Westlake, I. p. 192, in contradistinction to Hall, [p] 42.] - -[Sidenote: Position of Men-of-war in foreign waters.] - -[p] 450. The position of men-of-war in foreign waters is characterised by -the fact that they are called "floating" portions of the flag-State. For -at the present time a customary rule of International Law is universally -recognised that the owner State of the waters into which foreign -men-of-war enter must treat them in every point as though they were -floating portions of their flag-State.[793] Consequently, a man-of-war, -with all persons and goods on board, remains under the jurisdiction of -her flag-State even during her stay in foreign waters. No official of -the littoral State is allowed to board the vessel without special -permission of the commander. Crimes committed on board by persons in the -service of the vessel are under the exclusive jurisdiction of the -commander and the other home authorities. Individuals who are subjects -of the littoral State and are only temporarily on board may, although -they need not, be taken to the home country of the vessel, to be there -punished if they commit a crime on board. Even individuals who do not -belong to the crew, and who after having committed a crime on the -territory of the littoral State have taken refuge on board, cannot be -forcibly taken off the vessel; if the commander refuses their surrender, -it can be obtained only by means of diplomacy from the home State. - -[Footnote 793: This rule became universally recognised during the -nineteenth century only. On the change of doctrines formerly held in -this country and the United States of America, see Hall, [p] 54, and -Lawrence, [p] 107. English and American Courts now recognise the -exterritoriality of foreign public vessels. Thus, in the case of the -_Exchange_ (7 Cranch, 116), the Supreme Court of the United States -recognised the fact that the latter had no jurisdiction over this French -man-of-war. In the case of the _Constitution_, an American man-of-war, -the High Court of Admiralty in 1879 held that foreign public ships -cannot be sued in English Courts for salvage (L.R. 4 P.D. 39). And in -the case of the _Parlement Belge_ (L.R. 5 P.D. 197) the Court of Appeal, -affirmed by the House of Lords in 1878, held that foreign public vessels -cannot be sued in English Courts for damages for collision. Again the -same was held in 1906 in the case of the _Jassy_, a Roumanian ship, 10 -Aspinall, Mar. Cas. p. 278. See also the _Charkieh_ (1873), L.R. 4 Adm. -and Eccl. 59.] - -On the other hand, men-of-war cannot do what they like in foreign -waters. They are expected voluntarily to comply with the laws of the -littoral States with regard to order in the ports, the places for -casting anchor, sanitation and quarantine, customs, and the like. A -man-of-war which refuses to do so can be expelled, and, if on such or -other occasions she commits acts of violence against the officials of -the littoral State or against other vessels, steps may be taken against -her to prevent further acts of violence. But it must be emphasised that -even by committing acts of violence a man-of-war does not fall under the -jurisdiction of the littoral State. Only such measures are allowed -against her as are necessary to prevent her from further acts of -violence.[794] - -[Footnote 794: Attention ought to be drawn to the "_Reglement sur le -regime legal des navires et de leurs equipages dans les ports -etrangers_," adopted by the Institute of International Law, in 1898, at -its meeting at the Hague of which articles 8-24 deal with men-of-war in -foreign waters; see Annuaire, XVII. (1898), pp. 275-280.] - -[Sidenote: Position of Crew when on Land abroad.] - -[p] 451. Of some importance is the unsettled question respecting the -position of the commander and the crew of a man-of-war in foreign ports -when they are on land. - -The majority of publicists distinguish between a stay on land in the -service of the man-of-war and a stay for other purposes.[795] The -commander and members of the crew on land officially in the service of -their vessel, to buy provisions or to make other arrangements respecting -the vessel, remain under the exclusive jurisdiction of their home State, -even for crimes they commit on the spot. Although they may, if the case -makes it necessary, be arrested to prevent further violence, they must -at once be surrendered to the vessel. On the other hand, if they are on -land not officially, but for purposes of pleasure and recreation, they -are under the territorial supremacy of the littoral State like any other -foreigners, and they may be punished for crimes committed ashore. - -[Footnote 795: So also Moore, II. [p] 256.] - -There are, however, a number of publicists[796] who do not make this -distinction, and who maintain that commanders or members of the crew -whilst ashore are in every case under the local jurisdiction. - -[Footnote 796: See, for instance, Hall, [p] 55; Phillimore, I. [p] 346; -Testa, p. 109. See also art. 18 of the "_Reglement sur les regime legal -des navires et de leurs equipages dans les ports etrangers_," adopted by -the Institute of International Law, in 1898, at its meeting at the Hague -(Annuaire, XVII. (1898), p. 278).] - - -III - -AGENTS WITHOUT DIPLOMATIC OR CONSULAR CHARACTER - - Hall, [p][p] 103-104*--Moore, IV. [p] 623--Bluntschli, [p][p] - 241-243--Ullmann, [p][p] 66-67--Heffter, [p] 222--Rivier, I. [p] - 44--Calvo, III. [p][p] 1337-1339--Fiore, II. Nos. 1188-1191--Martens, - II. [p] 5--Adler, "Die Spionage" (1906), pp. 63-92. - -[Sidenote: Agents lacking diplomatic or consular character.] - -[p] 452. Besides diplomatic envoys and consuls, States may and do send -various kinds of agents abroad--namely, public political agents, secret -political agents, spies, commissaries, bearers of despatches. Their -position is not the same, but varies according to the class they belong -to, and they must therefore be severally treated. - -[Sidenote: Public Political Agents.] - -[p] 453. Public political agents are agents sent by one Power to another -for political negotiations of different kinds. They may be sent for a -permanency or for a limited time only. As they are not invested with -diplomatic character, they do not receive a Letter of Credence, but a -letter of recommendation or commission only. They may be sent by one -full-Sovereign State to another, but also by and to insurgents -recognised as a belligerent Power, and by and to States under -suzerainty. Public (or secret) political agents without diplomatic -character are, in fact, the only means for personal political -negotiations with such insurgents and States under suzerainty. - -As regards the position and privileges of such agents, it is obvious -that they enjoy neither the position nor the privileges of diplomatic -envoys.[797] But, on the other hand, they have a public character, being -admitted as public political agents of a foreign State. They must, -therefore, certainly be granted a special protection, but no distinct -rules concerning special privileges to be granted to such agents seem to -have grown up in practice. Inviolability of their persons and official -papers ought to be granted to them.[798] - -[Footnote 797: Heffter, [p] 222, is, as far as I know, the only publicist -who maintains that agents not invested with diplomatic character must -nevertheless be granted the privileges of diplomatic envoys.] - -[Footnote 798: Ullmann, [p] 66, and Rivier, I. [p] 40, maintain that they -_must_ be granted the privilege of inviolability to the same extent as -diplomatic envoys.] - -[Sidenote: Secret Political Agents.] - -[p] 454. Secret political agents may be sent for the same purposes as -public political agents. But two kinds of secret political agents must -be distinguished. An agent may be secretly sent to another Power with a -letter of recommendation and admitted by that Power. Such agent is a -secret one in so far as third Powers do not know, or are not supposed to -know, of his existence. As he is, although secretly, admitted by the -receiving State, his position is essentially the same as that of a -public political agent. On the other hand, an agent may be secretly sent -abroad for political purposes without a letter of recommendation, and -therefore without being formally admitted by the Government of the State -in which he is fulfilling his task. Such agent has no recognised -position whatever according to International Law. He is not an agent of -a State for its relations with other States, and he is therefore in the -same position as any other foreign individual living within the -boundaries of a State. He may be expelled at any moment if he becomes -troublesome, and he may be criminally punished if he commits a political -or ordinary crime. Such secret agents are often abroad for the purpose -of watching the movements of political refugees or partisans, or of -Socialists, Anarchists, Nihilists, and the like. As long as such agents -do not turn into so-called _agents provocateurs_, the local authorities -will not interfere. - -[Sidenote: Spies.] - -[p] 455. Spies are secret agents of a State sent abroad[799] for the -purpose of obtaining clandestinely information in regard to military or -political secrets. Although all States constantly or occasionally send -spies abroad, and although it is neither morally nor politically and -legally considered wrong to send spies, such agents have, of course, no -recognised position whatever according to International Law, since they -are not agents of States for their international relations. Every State -punishes them severely when they are caught committing an act which is a -crime by the law of the land, or expels them if they cannot be punished. -And a spy cannot legally excuse himself by pleading that he only -executed the orders of his Government. The latter, on the other hand, -will never interfere, since it cannot officially confess to having -commissioned a spy. - -[Footnote 799: Concerning spies in time of war, see below, vol. II. [p][p] -159 and 210, and Adler, "Die Spionage" (1906), pp. 7-62.] - -[Sidenote: Commissaries.] - -[p] 456. Commissaries are agents sent with a letter of recommendation or -commission by one State to another for negotiations, not of a political -but of a technical or administrative character only. Such commissaries -are, for instance, sent and received for the purpose of arrangements -between the two States as regards railways, post, telegraphs, -navigation, delineation of boundary lines, and so on. A distinct -practice of guaranteeing certain privileges to such commissaries has not -grown up, but inviolability of their persons and official papers ought -to be granted to them, as they are officially sent and received for -official purposes. Thus Germany, in 1887, in the case of the French -officer of police Schnaebele, who was invited by local German -functionaries to cross the German frontier for official purposes and -then arrested, recognised the rule that a safe-conduct is tacitly -granted to foreign officials when they enter officially the territory of -a State with the consent of the local authorities, although Schnaebele -was not a commissary sent by his Government to the German Government. - -[Sidenote: Bearers of Despatches.] - -[p] 457. Individuals commissioned to carry official despatches from a -State to its head or to diplomatic envoys abroad are agents of such -State. Despatch-bearers who belong to the retinue of diplomatic envoys -as their couriers must enjoy, as stated above ([p] 405), exemption from -civil and criminal jurisdiction and a special protection in the State to -which the envoy is accredited, and a right of innocent passage through -third States. But bearers of official despatches who are not in the -retinue of the diplomatic envoys employing them must nevertheless be -granted inviolability for their person and official papers, provided -they possess special passports stating their official character as -despatch-bearers. And the same is valid respecting bearers of despatches -between the head of a State who is temporarily abroad and his Government -at home. - - -IV - -INTERNATIONAL COMMISSIONS - - Rivier, I. pp. 564-566--Ullmann, [p] 68--Gareis, [p][p] 51-52--Liszt, [p] - 16--Moore, IV. [p] 623. - -[Sidenote: Permanent in Contradistinction to Temporary Commissions.] - -[p] 458. A distinction must be made between temporary and permanent -international commissions. The former consist of commissaries delegated -by two or more States to arrange all kinds of non-political matters, -such as railways, post, telegraphs, navigation, boundary lines, and the -like. Such temporary commissions dissolve as soon as their purpose is -realised.[800] Besides temporary commissions, there are, however, -permanent commissions in existence. They have been instituted by the -Powers[801] in the interest of free navigation on two international -rivers and the Suez Canal; further, in the interest of international -sanitation; thirdly, in the interest of the foreign creditors of several -States unable to pay the interest on their stocks; and, lastly, -concerning bounties on sugar. - -[Footnote 800: The position of their members has been discussed above, [p] -456. Quite novel institutions are the International Commissions of -Inquiry recommended by the Hague Peace Conferences of 1890 and 1907. -Articles 9 to 36 of the Hague Convention for the peaceful adjustment of -international differences provide that, in international differences -involving neither honour nor vital interests, and arising from a -difference of opinion on matters of fact, the parties should institute -an International Commission of Inquiry; this commission to present a -report to the parties, which shall be limited to a statement of the -facts. See below, vol. II. [p] 5.] - -[Footnote 801: Only such permanent commissions are mentioned in the text -as have been instituted by the Powers in conference. There are, however, -many permanent commissions in existence which have been instituted by -neighbouring Powers for local purposes, as for example:--(1) The -American-Canadian International Fisheries Commission, instituted -according to article 1 of the Treaty of Washington of April 11, 1908; -see Treaty Series, 1908, No. 17. (2) The American-Canadian International -Joint Commission concerning boundary waters, instituted by articles 7-12 -of the Treaty of Washington of January 11, 1909; see Treaty Series, -1910, No. 23. (3) The permanent Mixed Fisheries Commission between the -United States, Canada, and Newfoundland, instituted in consequence of -the award of the Hague Court of Arbitration in the North Atlantic -Fisheries Case.] - -As regards the privileges to be granted to the members of either -temporary or permanent international commissions, no distinct practice -has grown up. If the treaty according to which a commission concerned -does not stipulate anything as regards such privileges, none need be -granted, but the persons of the commissioners must be specially -protected. However that may be, there is no doubt that members of -international commissions cannot, unless this be specially stipulated, -claim the privileges of diplomatic envoys. Thus, when in 1796 Messrs. -Gore and Pinkney,[802] the American Commissioners in London under -article 7 of the Jay Treaty, claimed these privileges, Great Britain -refused to concede them. - -[Footnote 802: See Moore, IV. [p] 623, p. 428.] - -[Sidenote: Commissions in the interest of Navigation.] - -[p] 459. Four international commissions have been instituted in the -interest of navigation--namely, two for the river Danube, one for the -Congo river, and one for the Suez Canal. - -1. With regard to navigation on the Danube, the European Danube -Commission was instituted by article 16 of the Peace Treaty of Paris in -1856. This commission, whose members are appointed by the signatory -Powers of the Treaty of Paris, was reconstituted by the Berlin -Conference in 1878 and again by the Conference of London in 1883. The -commission is totally independent of the territorial Governments, its -rights are clearly defined, and its members, offices, and archives enjoy -the privilege of inviolability. The competence of the European Danube -Commission comprehends the Danube from Ibraila downwards to its -mouth.[803] - -[Footnote 803: Details in Twiss, I. [p][p] 150-152.] - -2. The above-mentioned London Conference of 1883 has sanctioned -regulations[804] in regard to the navigation and river-police of the -Danube from the Iron Gates down to Ibraila, and has, by article 96 of -these regulations, instituted the Mixed Commission of the Danube to -enforce the observance of the regulations. The members of this -Commission are delegates from Austria-Hungary, Bulgaria, Roumania, -Servia, and the European Danube Commission--one member from each.[805] - -[Footnote 804: Martens, N.R.G. 2nd Ser. IX. p. 394.] - -[Footnote 805: Details in Twiss, [p] 152.] - -3. The Powers represented at the Berlin Congo Conference of 1884 have -sanctioned certain regulations in regard to navigation on the Congo -river, and have, by articles 17-21 of the General Act of the Conference, -instituted an International Commission of the Congo to enforce the -observance of these regulations. This Commission, in which every -signatory Power may be represented by one member, is totally independent -of the territorial Governments, and its members, offices, and archives -enjoy the privilege of inviolability.[806] - -[Footnote 806: Details in Calvo, I. [p] 334. According to Liszt, [p] 16, -II. 3, this Commission has never been appointed.] - -4. By article 8 of the Treaty of Constantinople of 1888 in regard to the -neutralisation of the Suez Canal, a Commission was instituted for the -supervision of the execution of that treaty. The Commission consists of -all the consuls of the signatory Powers in Egypt.[807] - -[Footnote 807: See above, [p] 183.] - -[Sidenote: Commissions in the interest of Sanitation.] - -[p] 460. Three international commissions in the interest of sanitation are -in existence. For the purpose of supervising the sanitary arrangements -in connection with the navigation on the lower part of the Danube, the -International Council of Sanitation was instituted at Bucharest in -1881.[808] The _Conseil superieur de sante_ at Constantinople has the -task of supervising the arrangements concerning cholera and plague. The -_Conseil sanitaire maritime et quarantenaire_ at Alexandria has similar -tasks and is subject to the control of the _Conseil superieur de sante_ -at Constantinople.[809] As regards the International Health Office at -Paris, see below, [p] 590, No. 6. - -[Footnote 808: See article 6 of the _Acte additionnel a l'Acte public du -2 novembre 1865 pour la navigation des embouchures du Danube_, signed on -May 28, 1881; Martens, N.R.G. 2nd Ser. VIII. p. 207.] - -[Footnote 809: Details in Liszt, [p] 16, III., where likewise information -is to be found as regards the _Conseil sanitaire_ at Tangiers, which -consists of all the foreign envoys in Morocco.] - -[Sidenote: Commissions in the Interest of Foreign Creditors.] - -[p] 461. Three international commissions in the interest of foreign -creditors are in existence--namely, in Turkey since 1878, in Egypt since -1880, and in Greece since 1897.[810] - -[Footnote 810: See Kaufmann, "Das internationale Recht der aegyptischen -Staatsschuld" (1891), and Murat, "Le controle international sur les -finances de l'Egypte, de la Grece et de la Turquie" (1899).] - -[Sidenote: Permanent Commission concerning Sugar.] - -[p] 462. According to article 7 of the Brussels Convention concerning -bounties on sugar, a permanent commission was instituted in 1902 at -Brussels.[811] - -[Footnote 811: See below, [p] 585, No. 3.] - - -V - -INTERNATIONAL OFFICES - - Rivier, I. pp. 564-566--Nys, II. pp. 264-270--Ullmann, [p] - 58--Liszt, [p] 17--Gareis, [p] 52--Descamps, "Les offices - internationaux et leur avenir" (1894). - -[Sidenote: Character of International Offices.] - -[p] 463. During the second half of the nineteenth century a great number -of general treaties were entered into by a greater or lesser number of -States for the purpose of settling in common certain non-political -matters. These general treaties create so-called unions among the -parties, and the business of these unions is in most cases transacted by -international offices created specially for that purpose. The -functionaries of these offices, however, ordinarily enjoy no privilege -whatever. The number of these offices is constantly increasing. Only the -more important ones are here enumerated, with the exclusion of the -International Bureau of Arbitration,[812] which, although an -international office, has no relation to those here discussed. - -[Footnote 812: See below, [p] 474.] - -[Sidenote: International Telegraph Offices.] - -[p] 464. In 1868 the international telegraph office of the International -Telegraph Union was created at Berne. It is administered by four -functionaries under the supervision of the Swiss Bundesrath. It edits -the _Journal Telegraphique_ in French.[813] Connected with this office -is, since 1906, the International Office for Radiotelegraphy.[814] - -[Footnote 813: See below, [p] 582, No. 2.] - -[Footnote 814: See below, [p] 582, No. 4.] - -[Sidenote: International Post Office.] - -[p] 465. The pendant of the international telegraph office is the -international post office of the Universal Postal Union created at Berne -in 1874. It is administered by seven functionaries under the supervision -of the Swiss Bundesrath, and edits a monthly, _L'Union Postale_, in -French, German, and English.[815] - -[Footnote 815: See below, [p] 582, No. 1.] - -[Sidenote: International Office of Weights and Measures.] - -[p] 466. The States which have introduced the metric system of weights and -measures created in 1875 the international office of weights and -measures in Paris. Of functionaries there are a director and several -assistants. Their task is the custody of the international prototypes of -the metre and kilogramme and the comparison of the national prototypes -with the international.[816] - -[Footnote 816: See below, [p] 588, No. 1.] - -[Sidenote: International Office for the Protection of Works of -Literature and Art and of Industrial Property.] - -[p] 467. In 1883 an International Union for the Protection of Industrial -Property, and in 1886 an International Union for the Protection of Works -of Literature and Art, were created, with an international office in -Berne. There are a secretary-general and three assistants, who edit a -monthly, _Le Droit d'Auteur_, in French.[817] - -[Footnote 817: See below, [p][p] 584 and 585, No. 2.] - -[Sidenote: The Pan-American Union.] - -[p] 467_a_. The first Pan-American Conference of 1889 created "The -American International Bureau," which, since the fourth Conference of -1910, bears the name "The Pan-American Union." There are a director, an -assistant director, and several secretaries. This office[818] publishes -a "Monthly Bulletin." - -[Footnote 818: See below, [p] 595.] - -[Sidenote: Maritime Office at Zanzibar, and Bureau Special at Brussels.] - -[p] 468. In accordance with the General Act of the Anti-Slavery Conference -of Brussels, 1890, the International Maritime Office at Zanzibar and the -"Bureau Special" at Brussels were established; the latter is attached to -the Belgian Foreign Office at Brussels.[819] - -[Footnote 819: See below, [p] 592, No. 1.] - -[Sidenote: International Office of Customs Tariffs.] - -[p] 469. The International Union for the Publication of Customs Tariffs, -concluded in 1890, has created an international office[820] at Brussels. -There are a director, a secretary, and ten translators. The office edits -the _Bulletin des Douanes_ in French, German, English, Italian, and -Spanish. - -[Footnote 820: See below, [p] 585, No. 1.] - -[Sidenote: Central Office of International Transports.] - -[p] 470. Nine States--namely, Austria-Hungary, Belgium, France, Germany, -Holland, Italy, Luxemburg, Russia, Switzerland--entered in 1890 into an -international convention in regard to transports and freights on -railways and have created the "Office Central des Transports[821] -Internationaux" at Berne. - -[Footnote 821: See below, [p] 583, No. 1.] - -[Sidenote: Permanent Office of the Sugar Convention.] - -[p] 471. The States which concluded on March 5, 1902, at Brussels the -Convention concerning bounties on sugar[822] have, in compliance with -article 7 of this Convention, instituted a permanent office at Brussels. -The task of this office, which is attached to the permanent -commission,[823] also instituted by article 7, is to collect, -translate, and publish information of all kinds respecting legislation -on and statistics of sugar. - -[Footnote 822: See below, [p] 585, No. 3.] - -[Footnote 823: See above, [p] 462.] - -[Sidenote: Agricultural Institute.] - -[p] 471_a_. In 1905 the Agricultural Institute[824] was established at -Rome. It consists of a General Assembly and a Permanent Committee with a -general secretary. - -[Footnote 824: See below, [p] 586, No. 1.] - -[Sidenote: International Health Office.] - -[p] 471_b_. In 1907 the International Health Office[825] was established -at Paris. It consists of a director, a general secretary, and a number -of clerks. It publishes at least once a month a bulletin in French. - -[Footnote 825: See below, [p] 590, No. 6.] - - -VI - -THE INTERNATIONAL COURT OF ARBITRATION - - Lawrence, [p] 221--Bonfils, No. 970[8]--Despagnet, Nos. 736-740. - -[Sidenote: Organisation of Court in general.] - -[p] 472. In compliance with articles 20 to 29 of the Hague Convention for -the peaceful adjustment of international differences, the signatory -Powers in 1900 organised the International Court of Arbitration at the -Hague. This organisation comprises three distinct bodies--namely, the -Permanent Administrative Council of the Court, the International Bureau -of the Court, and the Court of Arbitration itself. But a fourth body -must also be distinguished--namely, the tribunal to be constituted for -the decision of every case. Articles 20 to 29 are now replaced by -articles 41 to 50 of the Convention for the peaceful adjustment of -international differences produced by the second Hague Peace Conference -of 1907. - -[Sidenote: The Permanent Council.] - -[p] 473. The Permanent Council (article 49) consists of the diplomatic -envoys of the contracting Powers accredited to Holland and the Dutch -Secretary for Foreign Affairs, who acts as president of the Council. The -task of the Council is the control of the International Bureau of the -Court, the appointment, suspension, and dismissal of the _employes_ of -the bureau, the fixing of the payments and salaries, the control of the -general expenditure, and the decision of all questions of administration -with regard to the business of the Court. The Council has, further, the -task of furnishing the signatory Powers with a report of the proceedings -of the Court, the working of the administration, and the expenses. At -meetings duly summoned, the presence of nine members is sufficient to -give the Council power to deliberate, and its decisions are taken by a -majority of votes. - -[Sidenote: The International Bureau.] - -[p] 474. The International Bureau (article 43) serves as the Registry for -the Court. It is the intermediary for communications relating to the -meetings of the Court. It has the custody of the archives and the -conduct of all the administrative business of the Court. The contracting -Powers have to furnish the Bureau with a certified copy of every -stipulation concerning arbitration arrived at between them, and of any -award concerning them rendered by a special tribunal. They likewise have -to communicate to the Bureau the laws, regulations, and documents, if -any, showing the execution of the awards given by the Court. The Bureau -is (article 47) authorised to place its premises and its staff at the -disposal of the contracting Powers for the work of any special[826] -tribunal of arbitration not constituted within the International Court -of Arbitration. The expense (article 50) of the Bureau is borne by the -signatory Powers in the proportion established for the International -Office of the International Postal Union. - -[Footnote 826: See below, vol. II. [p] 20.] - -[Sidenote: The Court of Arbitration.] - -[p] 475. The Court of Arbitration (article 44) consists of a large number -of individuals "of recognised competence in questions of International -Law, enjoying the highest moral reputation," selected and appointed by -the contracting Powers. No more than four members may be appointed by -one Power, but two or more Powers may unite in the appointment of one or -more members, and the same individual may be appointed by different -Powers. Every member is appointed for a term of six years, but his -appointment may be renewed. The place of a resigned or deceased member -is to be refilled by the respective Powers, and in this case the -appointment is made for a fresh period of six years. The names of the -members of the Court thus appointed are enrolled upon a general list, -which is to be kept up to date and communicated to all the contracting -Powers. The Court thus constituted has jurisdiction over all cases of -arbitration, unless there shall be an agreement between the parties for -a special tribunal of arbitrators not selected from the list of the -members of the Court (article 42). - -[Sidenote: The Deciding Tribunal.] - -[p] 476. The Court of Arbitration does not as a body decide the cases -brought before it, but a tribunal is created for every special case by -selection of a number of arbitrators from the list of the members of the -Court. This tribunal (article 45) may be created directly by agreement -of the parties. If this is not done, the tribunal is formed in the -following manner:--Each party selects two arbitrators from the list, of -whom one only can be its national or chosen from the persons appointed -by it as members of the Permanent Court, and the four arbitrators so -appointed choose a fifth as umpire and president. If the votes of the -four are equal, the parties entrust to a third Power the choice of the -umpire. If the parties cannot agree in their choice of such third Power, -each party nominates a different Power, and the umpire is chosen by the -united action of the Powers thus nominated. If within two months' time -these two Powers cannot come to an agreement, each of them presents two -candidates from the list of members of the Permanent Court, exclusive -of the members selected by the parties and not being nationals of either -of them. Which of the candidates thus selected shall be the umpire is -determined by lot. - -After this is done, the tribunal is constituted, and the parties -communicate to the International Bureau of the Court the names of the -members of the tribunal, which meets at the time fixed by the parties; -the members of the tribunal must be granted the privileges of diplomatic -envoys when discharging their duties outside their own country (article -46). The tribunal sits at the Hague (article 43), and, except in case of -_force majeure_, the place of session can only be altered by the -tribunal with the assent of the parties, but the parties can from the -beginning designate another place than the Hague as the venue of the -tribunal (article 60). The expenses of the tribunal are paid by the -parties in equal shares, and each party pays its own expenses (article -85).[827] - -[Footnote 827: The procedure to be followed by and before the Tribunal -is described below, vol. II. [p] 27.] - -The following nine awards have hitherto been given by the Permanent -Court of Arbitration:-- - - (1) On October 14, 1902, in the case of the United States of - America _v._ Mexico concerning the _Fonds pieux des Californias_; - see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 193. - - (2) On February 22, 1904, in the case of Germany, Great Britain, - and Italy _v._ Venezuela concerning certain claims of their - subjects; see Martens, N.R.G. 3rd Ser. I. (1909), p. 57. - - (3) On May 22, 1905, in the case of Germany, France, and Great - Britain _v._ Japan concerning the interpretation of article 18 of - the treaty of April 4, 1896, and of other treaties; see Martens, - N.R.G. 2nd Ser. XXXV. (1908), p. 376. - - (4) On August 8, 1905, in the case of France _v._ Great Britain - concerning the Muscat Dhows; see Martens, N.R.G. 2nd Ser. XXXV. - (1908), p. 356. - - (5) On May 22, 1909, in the case of France _v._ Germany concerning - the Casa Blanca incident; see Martens, N.R.G. 3rd Ser. II. (1910), - p. 19. - - (6) On October 23, 1909, in the case of Norway _v._ Sweden - concerning the question of their maritime frontier; see Martens, - N.R.G. 3rd Ser. III. (1910), p. 85. - - (7) On September 7, 1910, in the case of the United States of - America _v._ Great Britain concerning the North Atlantic - Fisheries; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 89. - - (8) On October 25, 1910, in the case of the United States of - America _v._ Venezuela concerning the claims of the Orinoco - Steamship Co.; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 79. - - (9) On February 24, 1911, in the case of France _v._ Great Britain - concerning the British-Indian Savarkar; see Martens, N.R.G. 3rd - Ser. IV. (1911), p. 744. - - -VII - -THE INTERNATIONAL PRIZE COURT AND THE PROPOSED INTERNATIONAL COURT OF -JUSTICE - - Lawrence, [p] 192--Despagnet, No. 683_bis_--Scott, "The Hague Peace - Conferences" (1909), pp. 465-511 and 423-464, and in A.J. V. - (1911), pp. 302-324--Gregory in A.J. II. (1908), pp. 458-475. - -[Sidenote: The International Prize Court.] - -[p] 476_a_. The International Prize Court will be established at the Hague -according to Convention XII. of the second Hague Peace Conference of -1907. The following are the more important stipulations of this -Convention concerning the constitution[828] of the Court:--The Court -consists of fifteen judges and fifteen deputy-judges, who are appointed -for a period of six years and who rank equally and have precedence -according to the date of the notification of their appointment, but the -deputy judges rank after the judges (articles 10 to 12). Of the fifteen -judges of which the Court is composed, nine constitute a quorum; a judge -who is absent or prevented from sitting is replaced by his deputy judge -(article 14). The judges enjoy diplomatic privileges and immunities in -the performance of their duties when outside their own country (article -13). Each contracting Power appoints one judge and one deputy judge, and -the judges appointed by Great Britain, Germany, the United States of -America, Austria-Hungary, France, Italy, Japan, and Russia are always -summoned to sit, whereas the judges appointed by the other contracting -Powers sit by rota, as shown in the table annexed to the Convention -(article 15). If a belligerent Power has, according to the rota, no -judge sitting in the Court, it may ask that the judge appointed by it -shall take part in the settlement of all cases arising from the war; -lots shall then be drawn as to which of the judges entitled to sit -according to the rota shall withdraw, and this arrangement does not -affect the judge appointed by the other belligerent (article 16). No -judge can sit who has been a party, in any way whatever, to the sentence -pronounced by the National Courts, or has taken part in the case as -counsel or advocate for one of the parties; no judge or deputy judge -can, during his tenure of office, appear as agent or advocate before the -International Prize Court, nor act for one of the parties in any -capacity whatever (article 17). The belligerent captor is entitled to -appoint a naval officer of high rank to sit as assessor, but with no -voice in the decision; a neutral Power, which is a party to the -proceedings or whose national is a party, has the same right of -appointment; if in applying this last provision more than one Power is -concerned, they must agree among themselves, if necessary by lot, on the -officer to be appointed (article 18). The Court elects its President and -Vice-President by an absolute majority of the votes cast; after two -ballots, the election is made by a bare majority, and, in case the votes -are equal, by lot (article 19). The judges of the International Prize -Court are entitled to travelling allowances in accordance with the -regulations in force in their own country, and in addition thereto -receive, while the Court is sitting or while they are carrying out -duties conferred upon them by the Court, a sum of 100 Netherland florins -per diem; the judges may not receive from their own Governments or from -that of any other Power any remuneration in their capacity of members of -the Court (article 20). The seat of the International Prize Court is at -the Hague, and it cannot, except in the case of _force majeure_, be -transferred elsewhere without the consent of the belligerents (article -21). - -[Footnote 828: Details concerning the constitution of the International -Prize Court and the mode of procedure to be followed by and before it, -will be given below, vol. II. part III. chapter VI.] - -[Sidenote: The proposed International Court of Justice.] - -[p] 476_b_. Valuable as is the Permanent Court of Arbitration at the -Hague, it must be pointed out that it is not a real Court of Justice. -For, firstly, it is not itself a deciding tribunal, but only a list of -names out of which the parties in each case elect some members and -thereby constitute the Court. Secondly, experience teaches that a Court -of Arbitration endeavours more to give an award _ex aequo et bono_ which -more or less pleases both parties than to decide the conflict in a -judicial manner by simply applying strict legal rules without any -consideration as to whether or no the decision will please either party. -Thirdly, since in conflicts to be decided by arbitration the arbitrators -each time are selected by the parties, there are in most cases different -individuals acting as arbitrators, so that there is no continuity in the -administration of justice. - -For these reasons it would be of the greatest value to institute side by -side with the Permanent Court of Arbitration a real International Court -of Justice consisting of a number of judges in the technical sense of -the term, who are once for all appointed and will have to act in each -case that the parties choose to bring before the Court. Such a Court -would only take the legal aspects of the case into consideration and -would base its decision on mere legal deliberations. It would secure -continuity in the administration of international justice, because it -would in each case consider itself bound by its former decisions. It -would in time build up a valuable practice by deciding innumerable -controversies which as yet haunt the theory of International Law. The -second Hague Peace Conference of 1907 therefore discussed the question -of creating such a Court, but only produced the draft of a Convention -concerning the subject. It is, however, to be regretted that this draft -Convention speaks of the creation of a judicial "Arbitration" Court, and -thereby obliterates the boundary line between the arbitral and the -strictly judicial decision of international disputes; it would have been -better to speak simply of an International Court of Justice. However -that may be, there is no doubt that the near future will bring the -establishment of such a Court of Justice in contradistinction to the -Permanent Court of Arbitration, for the parties to a conflict frequently -hesitate to have it settled by arbitration, whereas they would be glad -to have it settled by a strictly judicial decision of the legal -questions involved. The same motives which urged the Powers to leave -aside the Permanent Court of Arbitration in Prize Cases and to enter -into a Convention for the establishment of a real International Prize -Court, will in time compel the Powers to establish a real International -Court of Justice.[829] - -[Footnote 829: It should be mentioned that Costa Rica, Guatemala, -Honduras, Nicaragua, and San Salvador in 1907--see Supplement to the -_American Journal of International Law_, II. (1908), p. 231--established -the "Central American Court of Justice" at Cartago, consisting of five -judges, to which they have bound themselves to submit all controversies -arising amongst them, of whatsoever nature, no matter what the origin -may be, in case they cannot be settled by diplomatic negotiation. This -Court is, however, only of local importance, although it is of great -value, being the first Court of its kind.] - - - - -PART IV - -INTERNATIONAL TRANSACTIONS - - - - -CHAPTER I - -ON INTERNATIONAL TRANSACTIONS IN GENERAL - - -I - -NEGOTIATION - - Heffter, [p][p] 234-239--Geffcken in Holtzendorff, III. pp. - 668-676--Liszt, [p] 20--Ullmann, [p] 71--Bonfils, Nos. - 792-795--Pradier-Fodere, III. Nos. 1354-1362--Rivier, II. [p] - 45--Calvo, III. [p][p] 1316-1320, 1670-1673. - -[Sidenote: Conception of Negotiation.] - -[p] 477. International negotiation is the term for such intercourse -between two or more States as is initiated and directed for the purpose -of effecting an understanding between them on matters of interest. Since -civilised States form a body interknitted through their interests, such -negotiation is in some shape or other constantly going on. No State of -any importance can abstain from it in practice. There are many other -international transactions,[830] but negotiation is by far the most -important of them. And it must be emphasised that negotiation as a means -of amicably settling conflicts between two or more States is only a -particular kind of negotiation, although it will be specially discussed -in another part of this work.[831] - -[Footnote 830: See below, [p][p] 486-490.] - -[Footnote 831: See below, vol. II. [p][p] 4-6.] - -[Sidenote: Parties to Negotiation.] - -[p] 478. International negotiations can be conducted by all such States as -have a standing within the Family of Nations. Full-Sovereign States are, -therefore, the regular subjects of international negotiation. But it -would be wrong to maintain that half- and part-Sovereign States can -never be parties to international negotiations. For they can indeed -conduct negotiations on those points concerning which they have a -standing within the Family of Nations. Thus, for instance, while -Bulgaria was a half-Sovereign State, she was nevertheless able to -negotiate on several matters with foreign States independently of -Turkey.[832] But so-called colonial States, as the Dominion of Canada, -can never be parties to international negotiations; any necessary -negotiation for a colonial State must be conducted by the mother-State -to which it internationally belongs.[833] - -[Footnote 832: See above, [p] 91.] - -[Footnote 833: The demand on the part of many influential Canadian -politicians, expressed after the verdict of the Arbitration Court in the -Alaska Boundary dispute, that Canada should have the power of making -treaties independently of Great Britain, necessarily includes the demand -to become in some respects a Sovereign State.] - -It must be specially mentioned that such negotiation as is conducted -between a State, on the one hand, and, on the other, a party which is -not a State, is not _international_ negotiation, although such party may -reside abroad. Thus, negotiations of a State with the Pope and the Holy -See are not international negotiations, although all the formalities -connected with international negotiations are usually observed in this -case. Thus, too, negotiations on the part of States with a body of -foreign bankers and contractors concerning a loan, the building of a -railway, the working of a mine, and the like, are not international -negotiations. - -[Sidenote: Purpose of Negotiation.] - -[p] 479. Negotiations between States may have various purposes. The -purpose may be an exchange of views only on some political question; but -it may also be an arrangement as to the line of action to be taken in -future with regard to a certain point, or a settlement of differences, -or the creation of international institutions, such as the Universal -Postal Union for example, and so on. Of the greatest importance are -those negotiations which aim at an understanding between members of the -Family of Nations respecting the very creation of rules of International -Law by international conventions. Since the Vienna Congress at the -beginning of the nineteenth century negotiations between the Powers for -the purpose of defining, creating, or abolishing rules of International -Law have been frequently and very successfully conducted.[834] - -[Footnote 834: See below, [p][p] 555-568_b_.] - -[Sidenote: Negotiations by whom conducted.] - -[p] 480. International negotiations are conducted by the agents which -represent the negotiating States. The heads of these States may conduct -the negotiations in person, either by letters or by a personal -interview. Serious negotiations have in the past been conducted by heads -of States, and, although this is comparatively seldom done, there is no -reason to believe that personal negotiations between heads of States -will not occur in future.[835] Heads of States may also personally -negotiate with diplomatic or other agents commissioned for that purpose -by other States. Ambassadors, as diplomatic agents of the first class, -must, according to International Law, have even the right to approach in -person the head of the State to which they are accredited for the -purpose of negotiation.[836] The rule is, however, that negotiation -between States concerning more important matters is conducted by their -Secretaries for Foreign Affairs, with the help either of their -diplomatic envoys or of agents without diplomatic character and -so-called commissaries.[837] - -[Footnote 835: See below, [p] 495.] - -[Footnote 836: See above, [p] 365.] - -[Footnote 837: Negotiations between armed forces of belligerents are -regularly conducted by soldiers. See below, vol. II. [p][p] 220-240.] - -[Sidenote: Form of Negotiation.] - -[p] 481. The Law of Nations does not prescribe any particular form in -which international negotiations must be conducted. Such negotiations -may, therefore, take place _viva voce_ or through the exchange of -written representations and arguments, or both. The more important -negotiations are regularly conducted through the diplomatic exchange of -written communications, as only in this way can misunderstandings be -avoided, which easily arise during _viva voce_ negotiations. Of the -greatest importance are the negotiations which take place through -congresses and conferences.[838] - -[Footnote 838: See below, [p] 483.] - -During _viva voce_ negotiations it happens sometimes that a diplomatic -envoy negotiating with the Secretary for Foreign Affairs reads out a -letter received from his home State. In such case it is usual to leave a -copy of the letter at the Foreign Office. If a copy is refused, the -Secretary for Foreign Affairs can on his part refuse to hear the letter -read. Thus in 1825 Canning refused to allow a Russian communication to -be read to him by the Russian Ambassador in London with regard to the -independence of the former Spanish colonies in South America, because -this Ambassador was not authorised to leave a copy of the communication -at the British Foreign Office.[839] - -[Footnote 839: As regards the language used during negotiation, see -above, [p] 359.] - -[Sidenote: End and Effect of Negotiation.] - -[p] 482. Negotiations may and often do come to an end without any effect -whatever on account of the parties failing to agree. On the other hand, -if negotiations lead to an understanding, the effect may be twofold. It -may consist either in a satisfactory exchange of views and intentions, -and the parties are then in no way, at any rate not legally, bound to -abide by such views and intentions, or to act on them in the future; or -in an agreement on a treaty, and then the parties are legally bound by -the stipulations of such treaty. Treaties are of such importance that it -is necessary to discuss them in a special chapter.[840] - -[Footnote 840: See below, [p][p] 491-554.] - - -II - -CONGRESSES AND CONFERENCES - - Phillimore, II. [p][p] 39-40--Twiss, II. [p] 8--Taylor, [p][p] - 34-36--Bluntschli, [p] 12--Heffter, [p] 242--Geffcken in Holtzendorff, - III. pp. 679-684--Ullmann, [p][p] 71-72--Bonfils, Nos. - 796-814--Despagnet, Nos. 478-482--Pradier-Fodere, VI. Nos. - 2593-2599--Rivier, II. [p] 46--Nys, III. pp. 7-17--Calvo, III. [p][p] - 1674-1681--Fiore, II. Nos. 1216-1224, and Code, Nos. - 1206-1245--Martens, I. [p] 52--Charles de Martens, "Guide - diplomatique," vol. I. [p] 58--Pradier-Fodere, "Cours de droit - diplomatique" (1881), vol. II. pp. 372-424--Zaleski, "Die - voelkerrechtliche Bedeutung der Congresse" (1874)--Nippold, "Die - Fortbildung des Verfahrens in voelkerrechtlichen Streitigkeiten" - (1907), pp. 480-526. - -[Sidenote: Conception of Congresses and Conferences.] - -[p] 483. International congresses and conferences are formal meetings of -the representatives of several States for the purpose of discussing -matters of international interest and coming to an agreement concerning -these matters. As far as language is concerned, the term "congress" as -well as "conference" may be used for the meetings of the representatives -of only two States, but as a rule congresses or conferences denote such -bodies only as are composed of the representatives of a greater number -of States. Several writers[841] allege that there are characteristic -differences between a congress and a conference. But all such alleged -differences vanish in face of the fact that the Powers, when summoning a -meeting of representatives, name such body either congress or conference -indiscriminately. It is not even correct to say that the more important -meetings are named congresses, in contradistinction to conferences, for -the Hague Peace Conferences of 1899 and 1907 were, in spite of their -grand importance, denominated conferences. - -[Footnote 841: See, for instance, Martens, I. [p] 52; Fiore, II. [p][p] -1216-1224, and Code, No. 1231.] - -Much more important than the mere terminological difference between -congress and conference is the difference of the representatives who -attend the meeting. - -For it may be that the heads of the -States meet at a congress or conference, or that the representatives -consist of diplomatic envoys and Secretaries for Foreign Affairs of the -Powers. But, although congresses and conferences of heads of States have -been held in the past and might at any moment be held again in the -future, there can be no doubt that the most important matters are -treated by congresses and conferences consisting of diplomatic -representatives of the Powers. - -[Sidenote: Parties to Congresses and Conferences.] - -[p] 484. Congresses and conferences not being organised by customary or -conventional International Law, no rules exist with regard to the -parties of a congress or conference. Everything depends upon the purpose -for which a congress or a conference meets, and upon the Power which -invites other Powers to the meeting. If it is intended to settle certain -differences, it is reasonable that all the States concerned should be -represented, for a Power which is not represented need not consent to -the resolutions of the congress. If the creation of new rules of -International Law is intended, at least all full-Sovereign members of -the Family of Nations ought to be represented. To the First Peace -Conference at the Hague, nevertheless, only the majority of States were -invited to send representatives, the South American Republics not being -invited at all. But to the Second Peace Conference of 1907 forty-seven -States were invited, although only forty-four sent representatives. -Costa Rica, Honduras, and Abyssinia were invited, but did not send any -delegates. - -It is frequently maintained that only full-Sovereign States can be -parties to congresses and conferences. This is certainly not correct, as -here, too, everything depends upon the merits of the special case. As a -rule, full-Sovereign States only are parties, but there are exceptions. -Thus, Bulgaria, at the time a vassal under Turkish suzerainty, was a -party to the First as well as to the Second Hague Peace Conference, -although without a vote. There is no reason to deny the rule that half- -and part-Sovereign States can be parties to congresses and conferences -in so far as they are able to negotiate internationally.[842] Such -States are, in fact, frequently asked to send representatives to such -congresses and conferences as meet for non-political matters. - -[Footnote 842: See above, [p] 478.] - -But no State can be a party which has not been invited, or admitted at -its own request. If a Power thinks it fitting that a congress or -conference should meet, it invites such other Powers as it pleases. The -invited Powers may accept under the condition that certain other Powers -should or should not be invited or admitted. Those Powers which have -accepted the invitation become parties if they send representatives. -Each party may send several representatives, but they have only one -vote, given by the senior representative for himself and his -subordinates. - -[Sidenote: Procedure at Congresses and Conferences.] - -[p] 485. After the place and time of meeting have been arranged--such -place may be neutralised for the purpose of securing the independence of -the deliberations and discussions--the representatives meet and -constitute themselves by exchanging their commissions and electing a -president and other officers. It is usual, but not obligatory,[843] for -the Secretary for Foreign Affairs of the State within which the congress -meets to be elected president. If the difficulty of the questions on the -programme makes it advisable, special committees are appointed for the -purpose of preparing the matter for discussion by the body of the -congress. In such discussion all representatives can take part. After -the discussion follows the voting. The motion must be carried -unanimously to consummate the task of the congress, for the vote of the -majority has no power whatever in regard to the dissenting parties. But -it is possible that the majority considers the motion binding for its -members. A protocol is to be kept of all the discussions and the voting. -If the discussions and votings lead to a final result upon which the -parties agree, all the points agreed upon are drawn up in an Act, which -is signed by the representatives and which is called the Final Act or -the General Act of the congress or conference. A party can make a -declaration or a reservation in signing the Act for the purpose of -excluding a certain interpretation of the Act in the future. And the Act -may expressly stipulate freedom for States which were not parties to -accede to it in future. - -[Footnote 843: Thus at both Hague Peace Conferences the first Russian -delegate was elected president.] - - -III - -TRANSACTIONS BESIDES NEGOTIATION - - Bluntschli, [p] 84--Hartmann, [p] 91; Gareis, [p] 77--Liszt, [p] 20. - -[Sidenote: Different kinds of Transaction.] - -[p] 486. International transaction is the term for every act on the -part of a State in its intercourse with other States. Besides -negotiation, which has been discussed above in [p][p] 477-482, there -are eleven other kinds of international transactions which are of -legal importance--namely, declaration, notification, protest, -renunciation, recognition, intervention, retorsion, reprisals, -pacific blockade, war, and subjugation. Recognition has already -been discussed above in [p][p] 71-75, as has also intervention in [p][p] -134-138, and, further, subjugation in [p][p] 236-241. Retorsion, -reprisals, pacific blockade, and war will be treated in the second -volume of this work. There are, therefore, here to be discussed -only the remaining four transactions--namely, declaration, -notification, protest, and renunciation. - -[Sidenote: Declaration.] - -[p] 487. The term "declaration" is used in three different meanings. It -is, first, sometimes used as the title of a body of stipulations of a -treaty according to which the parties engage themselves to pursue in -future a certain line of conduct. The Declaration of Paris, 1856, the -Declaration of St. Petersburg, 1868, and the Declaration of London, -1909, are instances of this. Declarations of this kind differ in no -respect from treaties.[844] One speaks, secondly, of declarations when -States communicate to other States or _urbi et orbi_ an explanation and -justification of a line of conduct pursued by them in the past, or an -explanation of views and intentions concerning certain matters. -Declarations of this kind may be very important, but they hardly -comprise transactions out of which rights and duties of other States -follow. But there is a third kind of declarations out of which rights -and duties do follow for other States, and it is this kind which -comprises a specific international transaction, although the different -declarations belonging to this group are by no means of a uniform -character. Declarations of this kind are declarations of war, -declarations on the part of belligerents concerning the goods they will -condemn as contraband, declarations at the outbreak of war on the part -of third States that they will remain neutral, and others. - -[Footnote 844: See below, [p] 508, where is mentioned the attempt of the -British Foreign Office to give to the term "declaration" a specific -meaning.] - -[Sidenote: Notification.] - -[p] 488. Notification is the technical term for the communication to other -States of the knowledge of certain facts and events of legal importance. -But a distinction must be drawn between obligatory and merely usual -notification. - -Notification has of late been stipulated in several cases to be -obligatory. Thus, according to article 34 of the General Act of the -Berlin Congo Conference of 1885, notification of new occupations and the -like on the African coast is obligatory. Thus, further, according to -article 84 of the Hague Convention for the peaceful adjustment of -international differences, in case a number of States are parties to a -treaty and two of the parties are at variance concerning the -interpretation of such treaty and agree to have the difference settled -by arbitration, they have to notify this agreement to all other parties -to the treaty. Again, according to article 2 of the Hague Convention -concerning the Commencement of Hostilities, 1907, the outbreak of war -must be notified to the neutral Powers, and so must the declaration of a -blockade,[845] according to article 11 of the Declaration of London, -1909. - -[Footnote 845: See also Declaration of London, articles 11 (2), 16, 23, -25, and 26.] - -Apart from such cases in which notification is stipulated as obligatory, -it is in principle not obligatory, although in fact it frequently takes -place because States cannot be considered subject to certain duties -without the knowledge of the facts and events which give rise to these -duties. Thus it is usual to notify to other States changes in the -headship and in the form of government of a State, the establishment of -a Federal State, an annexation after conquest, the appointment of a new -Secretary for Foreign Affairs, and the like. - -[Sidenote: Protest.] - -[p] 489. Protest is a formal communication on the part of a State to -another that it objects to an act performed or contemplated by the -latter. A protest serves the purpose of preservation of rights, or of -making it known that the protesting State does not acquiesce in and does -not recognise certain acts. A protest can be lodged with another State -concerning acts of the latter which have been notified to the former or -which have otherwise become known. On the other hand, if a State -acquires knowledge of an act which it considers internationally illegal -and against its rights, and nevertheless does not protest, such attitude -implies renunciation of such rights, provided a protest would have been -necessary to preserve a claim. It may further happen that a State at -first protests, but afterwards either expressly[846] or tacitly -acquiesces in the act. And it must be emphasised that under certain -circumstances and conditions a simple protest on the part of a State -without further action is not in itself sufficient to preserve the -rights in behalf of which the protest was made.[847] - -[Footnote 846: Thus by section 2 of the Declaration concerning Siam, -Madagascar, and the New Hebrides, which is embodied in the Anglo-French -Agreement of April 8, 1904, Great Britain withdrew the protest which she -had raised against the introduction of the Customs tariff established at -Madagascar after the annexation to France.] - -[Footnote 847: See below, [p] 539, concerning the withdrawal of Russia -from article 59 of the Treaty of Berlin, 1878, stipulating the freedom -of the port of Batoum.] - -[Sidenote: Renunciation.] - -[p] 490. Renunciation is the deliberate abandonment of rights. It can be -given _expressis verbis_ or tacitly. If, for instance, a State by -occupation takes possession of an island which has previously been -occupied by another State,[848] the latter tacitly renounces its rights -by not protesting as soon as it receives knowledge of the fact. -Renunciation plays a prominent part in the amicable settlement of -differences between States, either one or both parties frequently -renouncing their claims for the purpose of coming to an agreement. But -it must be specially observed that mere silence on the part of a State -does not imply renunciation; this occurs only when a State remains -silent, although a protest is necessary to preserve a claim. - -[Footnote 848: See above, [p] 247.] - - - - -CHAPTER II - -TREATIES - - -I - -CHARACTER AND FUNCTION OF TREATIES - - Vattel, II. [p][p] 152, 153, 157, 163--Hall, [p] 107--Phillimore, II. [p] - 44--Twiss, I. [p][p] 224-233--Taylor, [p][p] 341-342--Bluntschli, [p] - 402--Heffter, [p] 81--Despagnet, Nos. 435-436--Pradier-Fodere, II. - Nos. 888-919--Rivier, II. pp. 33-40--Nys, III. pp. 18-20 and - 43-48--Calvo, III. [p][p] 1567-1584--Fiore, II. Nos. 976-982--Martens, - I. [p] 103--Bergbohm, "Staatsvertraege und Gesetze als Quellen des - Voelkerrechts" (1877)--Jellinek, "Die rechtliche Natur der - Staatenvertraege" (1880)--Laghi, "Teoria dei trattati - internazionali" (1882)--Buonamici, "Dei trattati internazionali" - (1888)--Nippold, "Der voelkerrechtliche Vertrag" (1894)--Triepel, - "Voelkerrecht und Landesrecht" (1899), pp. 27-90. - -[Sidenote: Conception of Treaties.] - -[p] 491. International treaties are conventions or contracts between two -or more States concerning various matters of interest. Even before a Law -of Nations in the modern sense of the term was in existence, treaties -used to be concluded between States. And although in those times -treaties were neither based on nor were themselves a cause of an -International Law, they were nevertheless considered sacred and binding -on account of religious and moral sentiment. However, since the manifold -intercourse of modern times did not then exist between the different -States, treaties did not discharge such all-important functions in the -life of humanity as they do now. - -[Sidenote: Different kinds of Treaties.] - -[p] 492. These important functions are manifest if attention is given to -the variety of international treaties which exist nowadays and are day -by day concluded for innumerable purposes. In regard to State property, -treaties are concluded of cession, of boundary, and many others. -Alliances, treaties of protection, of guarantee, of neutrality, and of -peace are concluded for political purposes. Various purposes are served -by consular treaties, commercial[849] treaties, treaties in regard to -the post, telegraphs, and railways, treaties of copyright and the like, -of jurisdiction, of extradition, monetary treaties, treaties in regard -to measures and weights, to rates, taxes, and custom-house duties, -treaties on the matter of sanitation with respect to epidemics, treaties -in the interest of industrial labourers, and treaties with regard to -agriculture and industry. Again, various purposes are served by treaties -concerning warfare, mediation, arbitration, and so on. - -[Footnote 849: See below, [p][p] 578-580.] - -I do not intend to discuss the question of classification of the -different kinds of treaties, for hitherto all attempts[850] at such -classification have failed. But there is one distinction to be made -which is of the greatest importance and according to which the whole -body of treaties is to be divided into two classes. For treaties may, on -the one hand, be concluded for the purpose of confirming, defining, or -abolishing existing customary rules, and of establishing new rules for -the Law of Nations. Treaties of this kind ought to be termed -_law-making_ treaties. On the other hand, treaties may be concluded for -all kinds of other purposes. Law-making treaties as a source of rules of -International Law have been discussed above ([p] 18); the most important -of these treaties will be considered below ([p][p] 556-568_b_). - -[Footnote 850: Since the time of Grotius the science of the Law of -Nations has not ceased attempting a satisfactory classification of the -different kinds of treaties. See Heffter, [p][p] 88-91; Bluntschli, [p][p] -442-445; Martens, I. [p] 113; Ullmann, [p] 82; Wheaton, [p] 268 (following -Vattel, II. [p] 169); Rivier, II. pp. 106-118; Westlake, I. p. 283, and -many others.] - -[Sidenote: Binding Force of Treaties.] - -[p] 493. The question as to the reason of the binding force of -international treaties always was, and still is, very much disputed. -That all those publicists who deny the legal character of the Law of -Nations deny likewise a legally binding force in international treaties -is obvious. But even among those who acknowledge the legal character of -International Law, unanimity by no means exists concerning this binding -force of treaties. The question is all the more important as everybody -knows that treaties are sometimes broken, rightly according to the -opinion of the one party, and wrongly according to the opinion of the -other. Many publicists find the binding force of treaties in the Law of -Nature, others in religious and moral principles, others[851] again in -the self-restraint exercised by States in becoming a party to a treaty. -Some writers[852] assert that it is the contracting parties' own will -which gives binding force to their treaties, and others[853] teach that -such binding force is to be found _im Rechtsbewusstsein der -Menschheit_--that is, in the idea of right innate in man. I believe that -the question can satisfactorily be dealt with only by dividing it into -several different questions and by answering those questions _seriatim_. - -[Footnote 851: So Hall, [p] 107; Jellinek, "Staatenvertraege," p. 31; -Nippold, [p] 11.] - -[Footnote 852: So Triepel, "Voelkerrecht und Landesrecht" (1899), p. 82.] - -[Footnote 853: So Bluntschli, [p] 410.] - -First, the question is to be answered why treaties are legally binding. -The answer must categorically be that this is so because there exists a -customary rule of International Law that treaties are binding. - -Then the question might be put as to the cause of the existence of such -customary rule. The answer must be that such rule is the product of -several joint causes. Religious and moral reasons require such a rule -quite as much as the interest of the States, for no law could exist -between nations if such rule did not exist. All causes which have been -and are still working to create and maintain an International Law are at -the background of this question. - -And, thirdly, the question might be put how it is possible to speak of a -legally binding force in treaties without a judicial authority to -enforce their stipulations. The answer must be that the binding force of -treaties, although it is a legal force, is not the same as the binding -force of contracts according to Municipal Law, since International Law -is a weaker law, and for this reason less enforceable, than Municipal -Law. But just as International Law does not lack legal character in -consequence of the fact that there is no central authority[854] above -the States which could enforce it, so international treaties are not -deficient of a legally binding force because there is no judicial -authority for the enforcement of their stipulations. - -[Footnote 854: See above, [p] 5.] - - -II - -PARTIES TO TREATIES - - Vattel, II. [p][p] 154-156, 206-212--Hall, [p] 108--Westlake, I. - p. 279--Phillimore, II. [p][p] 48-49--Halleck, I. pp. - 275-278--Taylor, [p][p] 361-365--Wheaton, [p][p] 265-267--Moore, - V. [p][p] 734-737--Bluntschli, [p][p] 403-409--Heffter, [p][p] - 84-85--Ullmann, [p] 75--Bonfils, No. 818--Despagnet, No. - 446--Pradier-Fodere, II. Nos. 1058-1068--Rivier, II. pp. - 45-48--Nys, III. pp. 20-24--Calvo, III. [p][p] 1616-1618--Fiore, - II. Nos. 984-1000, and Code, Nos. 743-749--Martens, I. [p] - 104--Nippold, op. cit. pp. 104-112--Schoen in Z.V. V. (1911), pp. - 400-431. - -[Sidenote: The Treaty-making Power.] - -[p] 494. The so-called right of making treaties is not a right of a State -in the technical meaning of the term, but a mere competence attaching to -sovereignty. A State possesses, therefore, treating-making power only so -far as it is sovereign. Full-Sovereign States may become parties to -treaties of all kinds, being regularly competent to make treaties on -whatever matters they please. Not-full Sovereign States, however, can -become parties to such treaties only according to their competence to -conclude. It is impossible to lay down a hard-and-fast rule concerning -such competence of all not-full Sovereign States. Everything depends -upon the special case. Thus, the constitutions of Federal States -comprise provisions with regard to the competence, if any, of the -member-States to conclude international treaties among themselves as -well as with foreign States.[855] Thus, again, it depends upon the -special relation between the suzerain and the vassal how far the latter -possesses the competence to enter into treaties with foreign States; -ordinarily a vassal can conclude treaties concerning such matters as -railways, extradition, commerce, and the like. - -[Footnote 855: According to articles 7 and 9 of the Constitution of -Switzerland the Swiss member-States are competent to conclude -non-political treaties among themselves, and, further, such treaties -with foreign States as concern matters of police, of local traffic, and -of State economics. According to article 11 of the Constitution of the -German Empire, the German member-States are competent to conclude -treaties concerning all such matters as do not, in conformity with -article 4 of the Constitution, belong to the competence of the Empire. -On the other hand, according to article 1, section 10, of the -Constitution of the United States of America, the member-States are -incompetent either to conclude treaties among themselves or with foreign -States.] - -[Sidenote: Treaty-making Power exercised by Heads of States.] - -[p] 495. The treaty-making power of all States is exercised by their -heads, either personally or through representatives appointed by these -heads. The Holy Alliance of Paris, 1815, was personally concluded by the -Emperors of Austria and Russia and the King of Prussia. And when, on -June 24, 1859, the Austrian army was defeated at Solferino, the Emperors -of Austria and France met on July 11, 1859, at Villafranca and agreed in -person on preliminaries of peace. Yet, as a rule, heads of States do not -act in person, but authorise representatives to act for them. Such -representatives receive a written commission, known as powers or full -powers, which authorises them to negotiate in the name of the respective -heads of States. They also receive oral or written, open or secret -instructions. But, as a rule, they do not conclude a treaty finally, for -all treaties concluded by such representatives are in principle not -valid before ratification.[856] If they conclude a treaty by exceeding -their powers or acting contrary to their instructions, the treaty is not -a real treaty and not binding upon the State they represent. A treaty of -such a kind is called a _sponsio_ or _sponsiones_. _Sponsiones_ may -become a real treaty and binding upon the State through the latter's -approval. Nowadays, however, the difference between real treaties and -_sponsiones_ is less important than in former times, when the custom in -favour of the necessity of ratification for the validity of treaties was -not yet general. If nowadays representatives exceed their powers, their -States can simply refuse ratification of the _sponsio_. - -[Footnote 856: See below, [p] 510.] - -[Sidenote: Minor Functionaries exercising Treaty-making Power.] - -[p] 496. For some non-political purposes of minor importance, certain -minor functionaries are recognised as competent to exercise the -treaty-making power of their States. Such functionaries are _ipso facto_ -by their offices and duties competent to enter into certain agreements -without the requirement of ratification. Thus, for instance, in time of -war, military and naval officers in command[857] can enter into -agreements concerning a suspension of arms, the surrender of a fortress, -the exchange of prisoners, and the like. But it must be emphasised that -treaties of this kind are valid only when these functionaries have not -exceeded their powers. - -[Footnote 857: See Grotius, III. c. 22.] - -[Sidenote: Constitutional Restrictions.] - -[p] 497. Although the heads of States are regularly, according to the Law -of Nations, the organs that exercise the treaty-making power of the -States, constitutional restrictions imposed upon the heads concerning -the exercise of this power are nevertheless of importance for the Law of -Nations. Such treaties concluded by heads of States or representatives -authorised by these heads as violate constitutional restrictions are not -real treaties and do not bind the State concerned, because the -representatives have exceeded their powers in concluding the -treaties.[858] Such constitutional restrictions, although they are not -of great importance in Great Britain,[859] play a prominent part in the -Constitutions of most countries. Thus, according to article 8 of the -French Constitution, the President exercises the treaty-making power; -but peace treaties and such other treaties as concern commerce, finance, -and some other matters, are not valid without the co-operation of the -French Parliament. Thus, further, according to articles 1, 4, and 11 of -the Constitution of the German Empire, the Emperor exercises the -treaty-making power; but such treaties as concern the frontier, -commerce, and several other matters, are not valid without the -co-operation of the Bundesrath and the Reichstag. Again, according to -article 2, section 2, of the Constitution of the United States, the -President can only ratify treaties with the consent of the Senate. - -[Footnote 858: The whole matter is discussed with great lucidity by -Nippold, op. cit. pp. 127-164; see also Schoen, loc. cit.] - -[Footnote 859: See Anson, "The Law and Custom of the Constitution," II. -(2nd ed.), pp. 297-300.] - -[Sidenote: Mutual Consent of the Contracting Parties.] - -[p] 498. A treaty being a convention, mutual consent of the parties is -necessary. Mere proposals made by one party and not accepted by the -other are, therefore, not binding upon the proposer. Without force are -also pollicitations which contain mere promises without acceptance by -the party to whom they were made. Not binding are, lastly, so-called -_punctationes_, mere negotiations on the items of a future treaty, -without the parties entering into an obligation to conclude that treaty. -But such _punctationes_ must not be confounded either with a preliminary -treaty or with a so-called _pactum de contrahendo_. A preliminary treaty -requires the mutual consent of the parties with regard to certain -important points, whereas other points have to be settled by the -definitive treaty to be concluded later. Such preliminary treaty is a -real treaty and therefore binding upon the parties. A _pactum de -contrahendo_ requires likewise the mutual consent of the parties. It is -an agreement upon certain points to be incorporated in a future treaty, -and is binding upon the parties. The difference between _punctationes_ -and a _pactum de contrahendo_ is, that the latter stipulates an -obligation of the parties to settle the respective points by a treaty, -whereas the former does not. - -[Sidenote: Freedom of Action of consenting Representatives.] - -[p] 499. As a treaty will lack binding force without real consent, -absolute freedom of action on the part of the contracting parties is -required. It must, however, be understood that circumstances of urgent -distress, such as either defeat in war or the menace of a strong State -to a weak State, are, according to the rules of International Law, not -regarded as excluding the freedom of action of a party consenting to the -terms of a treaty. The phrase "freedom of action" applies only to the -_representatives_ of the contracting States. It is _their_ freedom of -action in consenting to a treaty which must not have been interfered -with and which must not have been excluded by other causes. A treaty -concluded through intimidation exercised against the representatives of -either party or concluded by intoxicated or insane representatives is -not binding upon the party so represented. But a State which was forced -by circumstances to conclude a treaty containing humiliating terms has -no right afterwards to shake off the obligations of such treaty on the -ground that its freedom of action was interfered with at the time.[860] -This must be emphasised, because in practice such cases of repudiation -have frequently occurred. A State may, of course, hold itself justified -by political necessity in shaking off such obligations, but this does -not alter the fact that such action is a breach of law. - -[Footnote 860: See examples in Moore, V. [p] 742.] - -[Sidenote: Delusion and Error in Contracting Parties.] - -[p] 500. Although a treaty was concluded with the real consent of the -parties, it is nevertheless not binding if the consent was given in -error, or under a delusion produced by a fraud of the other contracting -party. If, for instance, a boundary treaty were based upon an incorrect -map or a map fraudulently altered by one of the parties, such treaty -would by no means be binding. Although there is freedom of action in -such cases, consent has been given under circumstances which prevent the -treaty from being binding. - - -III - -OBJECTS OF TREATIES - - Vattel, II. [p][p] 160-162, 166--Hall, [p] 108--Phillimore, II. [p] - 51--Walker, [p] 30--Bluntschli, [p][p] 410-416--Heffter, [p] 83--Ullmann, - [p] 97--Bonfils, No. 819--Despagnet, No. 445--Pradier-Fodere, II. - Nos. 1080-1083--Merignhac, II. p. 640--Rivier, II. pp. 57-63--Nys, - III. p. 24--Fiore, II. Nos. 1001-1004, and Code, Nos. - 755-758--Martens, I. [p] 110--Jellinek, "Die rechtliche Natur der - Staatenvertraege" (1880), pp. 59-60--Nippold, op. cit. pp. 181-190. - -[Sidenote: Objects in general of Treaties.] - -[p] 501. The object of treaties is always an obligation, whether mutual -between all the parties or unilateral on the part of one only. Speaking -generally, the object of treaties can be an obligation concerning any -matter of interest for States. Since there exists no other law than -International Law for the intercourse of States with each other, every -agreement between them regarding any obligation whatever is a treaty. -However, the Law of Nations prohibits some obligations from becoming -objects of treaties, so that such treaties as comprise obligations of -this kind are from the very beginning null and void.[861] - -[Footnote 861: The voidance _ab origine_ of these treaties must not be -confounded with voidance of such treaties as are valid in their -inception, but become afterwards void on some ground or other; see -below, [p][p] 541-544.] - -[Sidenote: Obligations of Contracting Parties only can be Object.] - -[p] 502. Obligations to be performed by a State other than a contracting -party cannot be the object of a treaty. A treaty stipulating such an -obligation would be null and void. But this must not be confounded with -the obligation undertaken by one of the contracting States to exercise -an influence upon another State to perform certain acts. The object of a -treaty with such a stipulation is an obligation of one of the -contracting States, and the treaty is therefore valid and binding. - -[Sidenote: An Obligation inconsistent with other Obligations cannot be -an Object.] - -[p] 503. Such obligation as is inconsistent with obligations under -treaties previously concluded by one State with another cannot be the -object of a treaty with a third State. Thus, in 1878, when after the war -Russia and Turkey concluded the preliminary Treaty of Peace of San -Stefano, which was inconsistent with the Treaty of Paris of 1856 and the -Convention of London of 1871, England protested,[862] and the Powers met -at the Congress of Berlin to arrange matters by mutual consent. - -[Footnote 862: See Martens, N.R.G. 2nd Ser. III. p. 257.] - -[Sidenote: Object must be physically possible.] - -[p] 504. An obligation to perform a physical impossibility[863] cannot be -the object of a treaty. If perchance a State entered into a convention -stipulating an obligation of that kind, no right to claim damages for -non-fulfilment of the obligation would arise for the other party, such -treaty being legally null and void. - -[Footnote 863: See below, [p] 542.] - -[Sidenote: Immoral Obligations.] - -[p] 505. It is a customarily recognised rule of the Law of Nations that -immoral obligations cannot be the object of an international treaty. -Thus, an alliance for the purpose of attacking a third State without -provocation is from the beginning not binding. It cannot be denied that -in the past many treaties stipulating immoral obligations have been -concluded and executed, but this does not alter the fact that such -treaties were legally not binding upon the contracting parties. It must, -however, be taken into consideration that the question as to what is -immoral is often controversial. An obligation which is considered -immoral by other States may not necessarily appear immoral to the -contracting parties, and there is no Court that can decide the -controversy. - -[Sidenote: Illegal Obligations.] - -[p] 506. It is a unanimously recognised customary rule of International -Law that obligations which are at variance with universally recognised -principles of International Law cannot be the object of a treaty. If, -for instance, a State entered into a convention with another State not -to interfere in case the latter should appropriate a certain part of the -Open Sea, or should command its vessels to commit piratical acts on the -Open Sea, such treaty would be null and void, because it is a principle -of International Law that no part of the Open Sea can be appropriated, -and that it is the duty of every State to interdict to its vessels the -commission of piracy on the High Seas. - - -IV - -FORM AND PARTS OF TREATIES - - Grotius, II. c. 15, [p] 5--Vattel, II. [p] 153--Hall, [p] 109--Westlake, - I. pp. 279-281--Wheaton, [p] 253--Moore, V. [p] 740--Bluntschli, [p][p] - 417-427--Hartmann, [p][p] 46-47--Heffter, [p][p] 87-91--Ullmann, [p] - 80--Bonfils, Nos. 821-823--Pradier-Fodere, II. Nos. - 1084-1099--Merignhac, II. p. 645--Rivier, II. pp. 64-68--Nys, III. - pp. 25-28--Fiore, II. Nos. 1004-1006, and Code, Nos. - 759-763--Martens, I. [p] 112--Jellinek, "Die rechtliche Natur der - Staatenvertraege" (1880), p. 56--Nippold, op. cit. pp. 178-181. - -[Sidenote: No necessary Form of Treaties.] - -[p] 507. The Law of Nations includes no rule which prescribes a necessary -form of treaties. A treaty is, therefore, concluded as soon as the -mutual consent of the parties becomes clearly apparent. Such consent -must always be given expressly, for a treaty cannot be concluded by -tacit consent. But it matters not whether an agreement is made in -writing, orally, or by symbols. Thus, in time of war, the exhibition of -a white flag symbolises the proposal of an agreement as to a brief truce -for the purpose of certain negotiations, and the acceptance of the -proposal on the part of the other side by the exhibition of a similar -symbol establishes a convention as binding as any written treaty. Thus, -too, history tells of an oral treaty of alliance, secured by an oath, -concluded in 1697 at Pillau between Peter the Great of Russia and -Frederick III., Elector of Brandenburg.[864] Again, treaties are -sometimes concluded through an exchange of diplomatic notes between the -Secretaries for Foreign Affairs of two States or through the exchange of -personal letters between the heads of two States. However, as a matter -of reason, treaties usually take the form of a written[865] document -signed by duly authorised representatives of the contracting parties. - -[Footnote 864: See Martens, I. [p] 112.] - -[Footnote 865: The only writer who nowadays insists upon a _written_ -agreement for a treaty to be valid is, as far as I know, Bulmerincq ([p] -56). But although all important treaties are naturally concluded in -writing, the example of the agreements concluded between armed forces in -time of war either orally or through symbols proves that the written -form is not absolutely necessary.] - -[Sidenote: Acts, Conventions, Declarations.] - -[p] 508. International compacts which take the form of written contracts, -are, besides _Agreements_ or _Treaties_, sometimes termed _Acts_, -sometimes _Conventions_, sometimes _Declarations_. But there is no -essential difference between them, and their binding force upon the -contracting parties is the same whatever be their name. The Geneva -Convention, the Declarations of Paris and of London, and the Final Act -of the Vienna Congress are as binding as any agreement which goes under -the name of "Treaty" or "Convention." The attempt[866] to distinguish -fundamentally between a "Declaration" and a "Convention" by maintaining -that whereas a "Convention" creates rules of particular International -Law between the contracting States only, a "Declaration" contains the -recognition, on the part of the best qualified and most interested -Powers, of rules of universal International Law, does not stand the -test of scientific criticism. A "Declaration" is nothing else but the -title of a law-making treaty according to which the parties engage -themselves to pursue in future a certain line of conduct.[867] But such -law-making treaties are quite as frequently styled "Conventions" as -"Declarations." The best example is the Hague "Convention" concerning -the laws and usages of war, which is based upon the unratified -"Declaration" concerning the laws and customs of war produced by the -Brussels Conference of 1874. - -[Footnote 866: On the part of the British Foreign Office, see -Parliamentary Papers, Miscellaneous, No. 5 (1909), Cd. 4555, Proceedings -of the International Naval Conference held in London, December -1908-1909, p. 57.] - -[Footnote 867: See above, [p] 487.] - -[Sidenote: Parts of Treaties] - -[p] 509. Since International Law lays down no rules concerning the form of -treaties, there exist no rules concerning the arrangement of the parts -of written treaties. But the following order is usually observed. A -first part, the so-called _preamble_, comprises the names of the heads -of the contracting States, of their duly authorised representatives, and -the motives for the conclusion of the treaty. A second part consists of -the primary stipulations in numbered articles. A third part consists of -miscellaneous stipulations concerning the duration of the treaty, its -ratification, the accession of third Powers, and the like. The last part -comprises the signatures of the representatives. But this order is by no -means necessary. Sometimes, for instance, the treaty itself does not -contain the very stipulations upon which the contracting parties have -agreed, such stipulations being placed in an annex to the treaty. It may -also happen that a treaty contains secret stipulations in an additional -part, which are not made public with the bulk of the stipulations.[868] - -[Footnote 868: The matter is treated with all details by Pradier-Fodere, -II. [p][p] 1086-1096.] - - -V - -RATIFICATION OF TREATIES - - Grotius, II. c. 11, [p] 12--Pufendorf, III. c. 9, [p] 2--Vattel, - II. [p] 156--Hall, [p] 110--Westlake, I. pp. 279-280--Lawrence, - [p] 132--Phillimore, II. [p] 52--Twiss, I. [p] 214--Halleck, I. - pp. 276-277--Taylor, [p][p] 364-367--Moore, V. [p][p] - 743-756--Walker, [p] 30--Wharton, II. [p][p] 131-131A--Wheaton, - [p][p] 256-263--Bluntschli, [p][p] 420-421--Heffter, [p] - 87--Gessner in Holtzendorff, III. pp. 15-18--Ullmann, [p] - 78--Bonfils, Nos. 824-831--Pradier-Fodere, II. Nos. - 1100-1119--Merignhac, II. pp. 652-666--Nys, III. pp. - 28-36--Rivier, II. [p] 50--Calvo, III. [p][p] 1627-1636--Fiore, - II. No. 994, and Code, No. 750--Martens, I. [p][p] - 105-108--Wicquefort, "L'Ambassadeur et ses fonctions" (1680), II. - Section XV.--Jellinek, "Die rechtliche Natur der Staatenvertraege" - (1880), pp. 53-56--Nippold, op. cit. pp. 123-125--Wegmann, "Die - Ratifikation von Staatsvertraegen" (1892). - -[Sidenote: Conception and Function of Ratification.] - -[p] 510. Ratification is the term for the final confirmation given by the -parties to an international treaty concluded by their representatives. -Although a treaty is concluded as soon as the mutual consent is manifest -from acts of the duly authorised representatives, its binding force is -as a rule suspended till ratification is given. The function of -ratification is, therefore, to make the treaty binding, and, if it is -refused, the treaty falls to the ground in consequence. As long as -ratification is not given, the treaty is, although concluded, not -perfect. Many writers[869] maintain that, as a treaty is not binding -without ratification, it is the latter which really contains the mutual -consent and really concludes the treaty. Before ratification, they -maintain, there is no treaty concluded, but a mere mutual proposal -agreed to to conclude a treaty. But this opinion does not accord with -the real facts.[870] For the representatives are authorised and intend -to conclude a treaty by their signatures. The contracting States have -always taken the standpoint that a treaty is concluded as soon as their -mutual consent is clearly apparent. They have always made a distinction -between their consent given by representatives and their ratification to -be given afterwards, they have never dreamt of confounding the two and -considering their ratification their consent. It is for that reason that -a treaty cannot be ratified in part, that no alterations of the treaty -are possible through the act of ratification, that a treaty may be -tacitly ratified by its execution, that a treaty always is dated from -the day when it was duly signed by the representatives and not from the -day of its ratification, that there is no essential difference between -such treaties as want and such as do not want ratification. - -[Footnote 869: See, for instance, Ullmann, [p] 78; Jellinek, p. 55; -Nippold, p. 123; Wegmann, p. 11.] - -[Footnote 870: The matter is very ably discussed by Rivier, II. pp -74-76.] - -[Sidenote: Rationale for the Institution of Ratification.] - -[p] 511. The rationale for the institution of ratification is another -argument for the contention that the conclusion of the treaty by the -representatives is to be distinguished from the confirmation given by -the respective States through ratification. The reason is that States -want to have an opportunity of re-examining not the single stipulations, -but the whole effect of the treaty upon their interests. These interests -may be of various kinds. They may undergo a change immediately after the -signing of the treaty by the representatives. They may appear to public -opinion in a different light from that in which they appear to the -Governments, so that the latter want to reconsider the matter. Another -reason is that treaties on many important matters are, according to the -Constitutional Law of most States, not valid without some kind of -consent of Parliaments. Governments must therefore have an opportunity -of withdrawing from a treaty in case Parliaments refuse their -recognition. These two reasons have made, and still make, the -institution of ratification a necessity for International Law. - -[Sidenote: Ratification regularly, but not absolutely, necessary.] - -[p] 512. But ratification, although necessary in principle, is not always -essential. Although it is now a universally recognised customary rule of -International Law that treaties are regularly in need of ratification, -even if the latter was not expressly stipulated, there are exceptions -to the rule. For treaties concluded by such State functionaries[871] as -have within certain narrow limits, _ipso facto_ by their office, the -power to exercise the treaty-making competence of their State do not -want ratification, but are binding at once when they are concluded, -provided the respective functionaries have not exceeded their powers. -Further, treaties concluded by heads of States in person do not want -ratification provided that they do not concern matters in regard to -which constitutional restrictions[872] are imposed upon heads of States. -And, lastly, it may happen that the contracting parties stipulate -expressly, for the sake of a speedy execution of a treaty, that it shall -be binding at once without ratifications being necessary. Thus, the -Treaty of London of July 15, 1840, between Great Britain, Austria, -Russia, Prussia, and Turkey concerning the pacification of the -Turko-Egyptian conflict was accompanied by a secret protocol,[873] -signed by the representatives of the parties, according to which the -treaty was at once, without being ratified, to be executed. For the -Powers were, on account of the victories of Mehemet Ali, very anxious to -settle the conflict as quickly as possible. But it must be emphasised -that renunciation of ratification is valid only if given by -representatives duly authorised to make such renunciation. If the -representatives have not received a special authorisation to dispense -with ratification, then renunciation is not binding upon the States -which they represent. - -[Footnote 871: See above, [p] 496.] - -[Footnote 872: See above, [p] 497.] - -[Footnote 873: See Martens, N.R.G. I. p. 163.] - -[Sidenote: Length of Time for Ratification.] - -[p] 513. No rule of International Law prescribes the length of time within -which ratification must be given or refused. If such length of time is -not specially stipulated by the contracting parties in the very treaty, -a reasonable length of time must be presumed as mutually granted. -Without doubt, a refusal to ratify must be presumed from the lapse of an -unreasonable time without ratification having been made. In most cases, -however, treaties which are in need of ratification contain nowadays a -clause stipulating the reservation of ratification, and at the same time -a length of time within which ratification should take place. - -[Sidenote: Refusal of Ratification.] - -[p] 514. The question now requires attention whether ratification can be -refused on just grounds only or according to discretion. Formerly[874] -it was maintained that ratification could not be refused in case the -representatives had not exceeded their powers or violated their secret -instructions. But nowadays there is probably no publicist who maintains -that a State is in any case _legally_[875] bound not to refuse -ratification. Yet many insist that a State is, except for just reasons, -in principle _morally_ bound not to refuse ratification. I cannot see, -however, the value of such a moral in contradistinction to a legal duty. -The fact upon which everybody agrees is that International Law does in -no case impose a duty of ratification upon a contracting party. A State -refusing ratification will always have reasons for such line of action -which appear just to itself, although they may be unjust in the eyes of -others. In practice, ratification is given or withheld at discretion. -But in the majority of cases, of course, ratification is not refused. A -State which often and apparently wantonly refused ratification of -treaties would lose all credit in international negotiations and would -soon feel the consequences. On the other hand, it is impossible to lay -down hard-and-fast rules respecting just and unjust causes of refusal of -ratification. The interests at stake are so various, and the -circumstances which must influence a State are so imponderable, that it -must be left to the discretion of every State to decide the question for -itself. Numerous examples of important treaties which have not found -ratification can be given. It suffices to mention the Hay-Pauncefote -Treaty between the United States and Great Britain regarding the -proposed Nicaragua Canal, signed on February 5, 1900, which was ratified -with modifications by the Senate of the United States, this being -equivalent to refusal of ratification. (See below, [p] 517.) - -[Footnote 874: See Grotius, II. c. 11, [p] 12; Bynkershoek, "Quaestiones -juris publici," II. 7; Wicquefort, "L'Ambassadeur," II. 15; Vattel, II. -[p] 156; G. F. von Martens, [p] 48.] - -[Footnote 875: This must be maintained in spite of Wegmann's (p. 32) -assertion that a customary rule of the Law of Nations has to be -recognised that ratification can not regularly be refused. The -hair-splitting scholasticism of this writer is illustrated by a -comparison between his customary rule for the non-refusal of -ratification as arbitrarily constructed by himself, and the opinion -which he (p. 11) emphatically defends that a treaty is concluded only by -ratification.] - -[Sidenote: Form of Ratification.] - -[p] 515. No rule of International Law exists which prescribes a necessary -form of ratification. Ratification can therefore be given as well -tacitly as expressly. Tacit ratification takes place when a State begins -the execution of a treaty without expressly ratifying it. Further, -ratification may be given orally or in writing, although I am not aware -of any case in which ratification was given orally. For it is usual for -ratification to take the form of a document duly signed by the heads of -the States concerned and their Secretaries for Foreign Affairs. It is -usual to draft as many documents as there are parties to the convention, -and to exchange these documents between the parties. Sometimes the whole -of the treaty is recited _verbatim_ in the ratifying documents, but -sometimes only the title, preamble, and date of the treaty, and the -names of the signatory representatives are cited. As ratification is the -necessary confirmation only of an already existing treaty, the essential -requirement in a ratifying document is merely that it refer clearly and -unmistakably to the treaty to be ratified. The citation of title, -preamble, date, and names of the representatives is, therefore, quite -sufficient to satisfy that requirement, and I cannot agree with those -writers who maintain that the whole of the treaty ought to be recited -_verbatim_. - -[Sidenote: Ratification by whom effected.] - -[p] 516. Ratification is effected by those organs which exercise the -treaty-making power of the States. These organs are regularly the heads -of the States, but they can, according to the Municipal Law of some -States, delegate the power of ratification for some parts of the globe -to other representatives. Thus, the Viceroy of India is empowered to -ratify treaties with certain Asiatic monarchs in the name of the King of -Great Britain and Emperor of India, and the Governor-General of -Turkestan has a similar power for the Emperor of Russia. - -In case the head of a State ratifies a treaty, although the necessary -constitutional requirements have not been previously fulfilled, as, for -instance, in the case in which a treaty has not received the necessary -approval from the Parliament of the said State, the question arises -whether such ratification is valid or null and void. Many writers[876] -maintain that such ratification is nevertheless valid. But this opinion -is not correct, because it is clearly evident that in such a case the -head of the State has exceeded his powers, and that, therefore, the -State concerned cannot be held to be bound by the treaty.[877] The -conflict between the United States and France in 1831, frequently quoted -in support of the opinion that such ratification is valid, is not in -point. It is true that the United States insisted on payment of the -indemnity stipulated by a treaty which had been ratified by the King of -France without having received the necessary approval of the French -Parliament, but the United States did not maintain that the ratification -was valid; she insisted upon payment because the French Government had -admitted that such indemnity was due to her.[878] - -[Footnote 876: See, for instance, Martens, [p] 107, and Rivier, II. p. -85.] - -[Footnote 877: See above, [p] 497, and Nippold, p. 147.] - -[Footnote 878: See Wharton, II. [p] 131A, p. 20.] - -[Sidenote: Ratification can not be partial and conditional.] - -[p] 517. It follows from the nature of ratification as a necessary -confirmation of a treaty already concluded that ratification must be -either given or refused, no conditional or partial ratification being -possible. That occasionally a State tries to modify a treaty in -ratifying it cannot be denied, yet conditional ratification is no -ratification at all, but equivalent to refusal of ratification. Nothing, -of course, prevents the other contracting party from entering into fresh -negotiations in regard to such modifications; but it must be emphasised -that such negotiations are negotiations for a new treaty,[879] the old -treaty having become null and void through its conditional ratification. -On the other hand, no obligation exists for such party to enter into -fresh negotiations, it being a fact that conditional ratification is -identical with refusal of ratification, whereby the treaty falls to the -ground. Thus, for instance, when the United States Senate on December -20, 1900, in consenting[880] to the ratification of the Hay-Pauncefote -Treaty as regards the Nicaragua Canal, added modifying amendments, Great -Britain did not accept the amendments and considered the treaty fallen -to the ground. - -[Footnote 879: This is the correct explanation of the practice on the -part of States, which sometimes prevails, of acquiescing, after some -hesitation, in alterations proposed by a party to a treaty in ratifying -it; see examples in Pradier-Fodere, II. No. 1104, and Calvo, III. [p] -1630.] - -[Footnote 880: It is of importance to emphasise that the United States' -Senate, in proposing an amendment to a treaty before its ratification, -does not, strictly speaking, ratify such treaty conditionally, since it -is the President, and not the Senate, who possesses the power of -granting or refusing ratification; see Willoughby, "The Constitutional -Law of the United States" (1910), I. p. 462, note 14. The President, -however, according to article 2 of the Constitution, cannot grant -ratification without the consent of the Senate, and the proposal of an -amendment to a treaty on the part of the Senate, therefore, comprises, -indirectly, the proposal of a new treaty.] - -Quite particular is the case of a treaty to which a greater number of -States are parties and which is only partially ratified by one of the -contracting parties. Thus France, in ratifying the General Act of the -Brussels Anti-Slavery Conference of July 2, 1890, excepted from -ratification articles 21 to 23 and 42 to 61, and the Powers have -acquiesced in this partial ratification, so that France is not bound by -these twenty-three articles.[881] - -[Footnote 881: See Martens, N.R.G. 2nd Ser. XXII. (1897), p. 260.] - -But it must be emphasised that ratification is only then partial and -conditional if one or more stipulations of the treaty which has been -signed without reservation are exempted from ratification, or if an -amending clause is added to the treaty during the process of -ratification. It is therefore quite legitimate for a party who has -signed a treaty with certain reservations as regards certain -articles[882] to ratify the approved articles only, and it would be -incorrect to speak in this case of a partial ratification. - -[Footnote 882: See below, [p] 519.] - -Again, it is quite legitimate--and one ought not in that case to speak -of conditional ratification--for a contracting party who wants to secure -the interpretation of certain terms and clauses of a treaty to grant -ratification with the understanding only that such terms and clauses -should be interpreted in such and such a way. Thus when, in 1911, -opposition arose in Great Britain to the ratification of the Declaration -of London on account of the fact that the meaning of certain terms was -ambiguous and that the wording of certain clauses did not agree with the -interpretation given to them by the Report of the Drafting Committee, -the British Government declared that they would only ratify with the -understanding that the interpretation contained in the Report should be -considered as binding and that the ambiguous terms concerned should have -a determinate meaning. In such cases ratification does not introduce an -amendment or an alteration, but only fixes the meaning of otherwise -doubtful terms and clauses of the treaty. - -[Sidenote: Effect of Ratification.] - -[p] 518. The effect of ratification is the binding force of the treaty. -But the question arises whether the effect of ratification is -retroactive, so that a treaty appears to be binding from the date when -it is duly signed by the representatives. No unanimity exists among -publicists as regards this question. As in all important cases treaties -themselves stipulate the date from which they are to take effect, the -question is chiefly of theoretical interest. The fact that ratification -imparts the binding force to a treaty seems to indicate that -ratification has regularly no retroactive effect. Different, however, is -of course the case in which the contrary is expressly stipulated in the -very treaty, and, again, the case when a treaty contains such -stipulations as shall at once be executed, without waiting for the -necessary ratification. Be this as it may, ratification makes a treaty -binding only if the original consent was not given in error or under a -delusion.[883] If, however, the ratifying State discovers such error or -delusion and ratifies the treaty nevertheless, such ratification makes -the treaty binding. And the same is valid as regards a ratification -given to a treaty although the ratifying State knows that its -representatives have exceeded their powers by concluding the treaty. - -[Footnote 883: See above, [p] 500.] - - -VI - -EFFECT OF TREATIES - - Hall, [p] 114--Lawrence, [p] 134--Halleck, I. pp. 279-281--Taylor, [p][p] - 370-373--Wharton, II. [p] 137--Wheaton, [p] 266--Bluntschli, [p][p] - 415-416--Hartmann, [p] 49--Heffter, [p] 94--Bonfils, Nos. - 845-848--Despagnet, Nos. 447-448--Pradier-Fodere, II. Nos. - 1151-1155--Merignhac, II. pp. 667-672--Rivier, II. pp. - 119-122--Calvo, III. [p][p] 1643-1648--Fiore, II. Nos. 1008-1009, and - Code, Nos. 768-778--Martens, I. [p][p] 65 and 114--Nippold, op. cit. - pp. 151-160. - -[Sidenote: Effect of Treaties upon Contracting Parties.] - -[p] 519. By a treaty the contracting parties in the first place are -concerned. The effect of the treaty upon them is that they are bound by -its stipulations, and that they must execute it in all its parts. No -distinction should be made between more and less important parts of a -treaty as regards its execution. Whatever may be the importance or the -insignificance of a part of a treaty, it must be executed with good -faith, for the binding force of a treaty covers equally all its parts -and stipulations. If, however, a party to a treaty concluded between -more than two parties signs it with a reservation as regards certain -articles, such party is not bound by these articles, although it -ratifies[884] the treaty. - -[Footnote 884: See above, [p] 518.] - -[Sidenote: Effect of Treaties upon the Subjects of the Parties.] - -[p] 520. It must be specially observed that the binding force of a treaty -concerns the contracting States only, and not their subjects. As -International Law is a law between States only and exclusively, treaties -can have effect upon States and can bind States only and exclusively. If -treaties contain stipulations with regard to rights and duties of the -contracting States' subjects,[885] courts, officials, and the like, -these States have to take such steps as are necessary, according to -their Municipal Law, to make these stipulations binding upon their -subjects, courts, officials, and the like. It may be that according to -the Municipal Laws of some countries the official publication of a -treaty concluded by the Government is sufficient for this purpose, but -in other countries other steps are necessary, such as, for example, -special statutes to be passed by the respective Parliaments.[886] - -[Footnote 885: See above, [p] 289.] - -[Footnote 886: The distinction between International and Municipal Law -as discussed above, [p][p] 20-25, is the basis from which the question must -be decided whether international treaties have a direct effect upon the -officials and subjects of the contracting parties.] - -[Sidenote: Effect of Changes in Government upon Treaties.] - -[p] 521. As treaties are binding upon the contracting States, changes in -the government or even in the form of government of one of the parties -can as a rule have no influence whatever upon the binding force of -treaties. Thus, for instance, a treaty of alliance concluded by a State -with constitutional government remains valid, although the Ministry may -change. And no head of a State can shirk the obligations of a treaty -concluded by his State under the government of his predecessor. Even -when a monarchy turns into a republic, or _vice versa_, treaty -obligations regularly remain the same. For all such changes and -alterations, important as they may be, do not alter the person of the -State which concluded the treaty. If, however, a treaty stipulation -essentially presupposes a certain form of government, then a change from -such form makes such stipulation void, because its execution has become -impossible.[887] - -[Footnote 887: See below, [p] 542. Not to be confounded with the effect -of changes in government is the effect of a change in international -status upon treaties, as, for instance, if a hitherto full-sovereign -State becomes half- or part-Sovereign, or _vice versa_, or if a State -merges entirely into another, and the like. This is a case of succession -of States which has been discussed above, [p][p] 82-84; see also below, -[p] 548.] - -[Sidenote: Effect of Treaties upon third States.] - -[p] 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, [p] 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, [p] 184.] - -[Footnote 890: See above, [p] 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, [p] 573.] - -[Footnote 892: See below, [p] 569.] - - -VII - -MEANS OF SECURING PERFORMANCE OF TREATIES - - Vattel, II. [p][p] 235-261--Hall, [p] 115--Lawrence, [p] - 134--Phillimore, II. [p][p] 54-63A--Bluntschli, [p][p] - 425-441--Heffter, [p][p] 96-99--Geffcken in Holtzendorff, III. pp. - 85-90--Ullmann, [p] 83--Bonfils, Nos. 838-844--Despagnet, Nos. - 451-452--Pradier-Fodere, II. Nos. 1156-1169--Rivier, II. pp. - 94-97--Nys, III. pp. 36-41--Calvo, III. [p][p] 1638-1642--Fiore, - II. Nos. 1018-1019, and Code, Nos. 784-791--Martens, I. [p] - 115--Nippold, op. cit. pp. 212-227. - -[Sidenote: What means have been in use.] - -[p] 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.] - -[p] 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.] - -[p] 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. [p][p] 258-259.] - -[Sidenote: Pledge.] - -[p] 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. [p] 55.] - -[Sidenote: Occupation of Territory.] - -[p] 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.] - -[p] 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, [p][p] 574-576_a_. - -[Footnote 895: See below, [p] 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, [p] 114--Wheaton, [p] 288--Hartmann, [p] 51--Heffter, [p] - 88--Ullmann, [p] 81--Bonfils, Nos. 832-834--Despagnet, No. - 448--Pradier-Fodere, II. Nos. 1127-1150--Rivier, II. pp. - 89-93--Calvo, III. [p][p] 1621-1626--Fiore, II. Nos. - 1025-1031--Martens, I. [p] 111. - -[Sidenote: Interest and Participation to be distinguished.] - -[p] 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.] - -[p] 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. [p] 9. - -[Sidenote: Intervention.] - -[p] 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, [p] 135, p. 190, No. 2.] - -[Footnote 899: See R.G. II. pp. 457-463. Details concerning intervention -have been given above, [p] 134-138; see also below, vol. II. [p] 50.] - -[Sidenote: Accession.] - -[p] 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, [p] 528.] - -[Sidenote: Adhesion.] - -[p] 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. [p][p] 198-205--Hall, [p] 116--Westlake, I. pp. - 284-286--Lawrence, [p] 134--Halleck, I. pp. 293-296--Taylor, [p][p] - 394-399--Wharton, II. [p] 137A--Wheaton, [p] 275--Moore, V. [p][p] - 770-778--Bluntschli, [p][p] 450-461--Heffter, [p] 99--Ullmann, [p] - 85--Bonfils, Nos. 855-860--Despagnet, Nos. - 453-455--Pradier-Fodere, II. Nos. 1200-1218--Merignhac, II. p. - 788--Rivier, II. [p] 55--Nys, III. pp. 48-53--Calvo, III. [p][p] - 1662-1668--Fiore, II. Nos. 1047-1052--Martens, I. [p] 117--Jellinek, - "Die rechtliche Natur der Staatenvertraege" (1880), pp. - 62-64--Nippold, op. cit. pp. 235-248--Olivi, "Sull' estinzione dei - trattati internazionali" (1883)--Schmidt, "Ueber die - voelkerrechtliche _clausula rebus sic stantibus_, &c." - (1907)--Kaufmann, "Das Wesen des Voelkerrechts und die _clausula - rebus sic stantibus_" (1911)--Bonucci in Z.V. IV. (1910), pp. - 449-471. - -[Sidenote: Expiration and Dissolution in Contradistinction to -Fulfilment.] - -[p] 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, [p][p] 540-544 and 545-549.] - -[Sidenote: Expiration through Expiration of Time.] - -[p] 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.] - -[p] 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.] - -[p] 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.] - -[p] 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.] - -[p] 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, [p] 25, No. 2; Vattel, II. [p] 296; -Klueber, [p] 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 delier des -engagements d'un traite, ni en modifier les stipulations, qu'a 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, [p] 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 [p] 534. - -[Sidenote: Grounds of Voidance.] - -[p] 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, [p] 501.] - -[Sidenote: Extinction of one of the two Contracting Parties.] - -[p] 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 ([p] 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.] - -[p] 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, [p] 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.] - -[p] 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.] - -[p] 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 [p] 534. - -[Sidenote: Grounds of Cancellation.] - -[p] 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.] - -[p] 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 Plenipotentiaires -de la Russie, le Congres reconnait que la presente resolution, ne -pouvant avoir d'effet retroactif, ne saurait invalider les Conventions -anterieures." 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, [p] 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. [p] 774.] - -[Sidenote: Violation by one of the Contracting Parties.] - -[p] 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.] - -[p] 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. [p] 773, and above, [p] 82, p. 128, note 1, -and [p] 521.] - -[Sidenote: War.] - -[p] 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. [p] -99. - - -XII - -RENEWAL, RECONFIRMATION, AND REDINTEGRATION OF TREATIES - - Vattel, II. [p] 199--Hall, [p] 117--Taylor, [p] 400--Hartmann, [p] - 51--Ullmann, [p] 85--Bonfils, Nos. 851-854--Despagnet, No. - 456--Pradier-Fodere, II. Nos. 1191-1199--Rivier, II. pp. - 143-146--Calvo, III. [p][p] 1637, 1666, 1669--Fiore, II. Nos. - 1048-1049, and Code, Nos. 835-838. - -[Sidenote: Renewal of Treaties.] - -[p] 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.] - -[p] 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.] - -[p] 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. [p][p] 262-322--Hall, [p][p] - 111-112--Phillimore, II. [p][p] 64-95--Halleck, I. pp. - 296-304--Taylor, [p][p] 373-393--Walker, [p] 31--Wheaton, [p] 287--Moore, - V. [p][p] 763-764--Heffter, [p] 95--Ullmann, [p] 84--Bonfils, Nos. - 835-837--Despagnet, No. 450--Pradier-Fodere, II. Nos. - 1171-1189--Merignhac, II. p. 678--Nys, III. pp. 41-43--Rivier, II. - pp. 122-125--Calvo, III. [p][p] 1649-1660--Fiore, II. Nos. 1032-1046, - and Code, Nos. 792-816--Martens, I. [p] 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.] - -[p] 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.] - -[p] 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. [p][p] 64-95; see also -Moore, V. [p] 763, and Wharton, II. [p] 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, [p] 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.] - -[p] 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 Muenster and Osnabrueck -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, [p][p] 18 and 492.] - -[Sidenote: Final Act of the Vienna Congress.] - -[p] 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 congres de -Vienne et les traites de 1815" (4 vols., 1863).] - -[Sidenote: Protocol of the Congress of Aix-la-Chapelle.] - -[p] 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 Charges d'Affaires. - -[Footnote 915: Martens, N.R. IV. p. 648. See Angeberg, op. cit.] - -[Sidenote: Treaty of London of 1831.] - -[p] 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 neutralite de -la Belgique" (1902).] - -[Sidenote: Declaration of Paris.] - -[p] 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.] - -[p] 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 Muenzel, "Untersuchungen ueber 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.] - -[p] 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.] - -[p] 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.] - -[p] 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.] - -[p] 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.] - -[p] 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, [p] 183.] - -[Sidenote: General Act of the Brussels Anti-Slavery Conference.] - -[p] 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 Bruesseler 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.] - -[p] 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 Merignhac, "La Conference -internationale de la Paix" (1900).] - -[Sidenote: Treaty of Washington of 1901.] - -[p] 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. [p] 72.] - -[Sidenote: Conventions and Declaration of Second Hague Peace -Conference.] - -[p] 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.] - -[p] 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. [p][p] 78-102--Twiss, I. [p] - 246--Taylor, [p][p] 347-349--Wheaton, [p][p] 278-285--Bluntschli, [p][p] - 446-449--Heffter, [p] 92--Geffcken in Holtzendorff, III. pp. - 115-139--Ullmann, [p] 82--Bonfils, Nos. 871-881--Despagnet, No. - 459--Merignhac, II. p. 683--Nys, III. pp. 554-557--Pradier-Fodere, - II. Nos. 934-967--Rivier, II. pp. 111-116--Calvo, III. [p][p] - 1587-1588--Fiore, II. No. 1094, and Code, Nos. 893-899--Martens, - I. [p] 113--Rolin-Jaequemyns in R.I. XX. (1888), pp. 5-35--Erich, - "Ueber Allianzen und Allianzverhaeltnisse nach heutigem - Voelkerrecht" (1907). - -[Sidenote: Conception of Alliances.] - -[p] 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.] - -[p] 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.] - -[p] 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, [p] 505.] - -[Sidenote: Conditions of Alliances.] - -[p] 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, [p] 570.] - -[Sidenote: _Casus Foederis._] - -[p] 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, [p] -522. - - -III - -TREATIES OF GUARANTEE AND OF PROTECTION - - Vattel, II. [p][p] 235-239--Hall, [p] 113--Phillimore, II. [p][p] - 56-63--Twiss, I. [p] 249--Halleck, I. p. 285--Taylor, [p][p] - 350-353--Wheaton, [p] 278--Bluntschli, [p][p] 430-439--Heffter, [p] - 97--Geffcken in Holtzendorff, III. pp. 85-112--Liszt, [p] - 22--Ullmann, [p] 83--Fiore, Code, Nos. 787-791--Bonfils, Nos. - 882-893--Despagnet, No. 461--Merignhac, II. p. 681--Nys, III. pp. - 36-41--Pradier-Fodere, II. Nos. 969-1020--Rivier, II. pp. - 97-105--Calvo, III. [p][p] 1584-1585--Martens, I. [p] 115--Neyron, - "Essai historique et politique sur les garanties" - (1779)--Milovanovitch, "Des traites de garantie en droit - international" (1888)--Erich, "Ueber Allianzen und - Allianzverhaeltnisse nach heutigem Voelkerrecht" (1907)--Quabbe, - "Die voelkerrechtliche Garantie" (1911). - -[Sidenote: Conception and Object of Guarantee Treaties.] - -[p] 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, [p] 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.] - -[p] 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, [p] 539.] - -[Sidenote: Effect of Collective Guarantee.] - -[p] 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, [p] 113; Bluntschli, [p] 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.] - -[p] 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.] - -[p] 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, [p] 92.] - - -IV - -COMMERCIAL TREATIES - - Taylor, 354--Moore, V. [p][p] 765-769--Melle in Holtzendorff, III. pp. - 143-256--Liszt, [p] 28--Ullmann, [p] 145--Bonfils, No. 918--Despagnet, - No. 462--Pradier-Fodere, IV. Nos. 2005-2033--Merignhac, II. pp. - 688-693--Rivier, I. pp. 370-374--Fiore, II. Nos. 1065-1077, and - Code, Nos. 848-854--Martens, II. [p][p] 52-55--Steck, "Versuch ueber - Handels- und Schiffahrtsvertraege" (1782)--Schraut, "System der - Handelsvertraege und der Meistbeguenstigung" (1884)--Veillcovitch, - "Les traites de commerce" (1892)--Nys, "Les origines du droit - international" (1894), pp. 278-294--Herod, "Favoured Nation - Treatment" (1901)--Calwer, "Die Meistbeguenstigung in den - Vereinigten Staaten von Nord-America" (1902)--Glier, "Die - Meistbeguenstigungs-Klausel" (1906)--Cavaretta, "La clausola della - natiozione piu 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.] - -[p] 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.] - -[p] 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, [p] 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'Algerie ne -pourra s'effectuer que sous pavillon francais_. 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, [p] 21--the Courts are -bound to apply their Municipal Law.] - -[Sidenote: Meaning of most-favoured-nation Clause.] - -[p] 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, [p] 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 [p] 578. See also Moore, V. [p][p] 765-769.] - - -V - -UNIONS CONCERNING COMMON NON-POLITICAL INTERESTS - - Nys, II. pp. 264-270--Merignhac, 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.] - -[p] 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.] - -[p] 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); Schroeter, "Der Weltpostverein" (1900); Rolland, "De la -correspondance postale et telegraphique 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, [p] 464, and Fischer "Die Telegraphie und das -Voelkerrecht" (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, [p] 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, [p] -174, No. 2, and [p][p] 287_a_ and 287_b_, where the literature concerned is -also to be found.] - -[Sidenote: Transport and Communication.] - -[p] 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 fuer 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, [p] 470, and Kaufmann, "Die mitteleuropaeischen -Eisenbahnen und das internationale oeffentliche Recht" (1893); Rosenthal, -"Internationales Eisenbahnfrachtrecht" (1894); Magne, "Des raccordements -internationaux de chemins de fer, &c." (1901); Eger, "Das internationale -Uebereinkommen ueber 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.] - -[p] 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, [p] 467, and Orelli, "Der internationale Schutz -des Urheberrechts" (1887); Thomas, "La convention litteraire et -artistique internationale, &c." (1894); Briggs, "The Law of -International Copyright" (1906); Roethlisberger, "Die Berner Uebereinkunft -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 (revisee a Berlin) pour la protection des -oeuvres litteraires et artistiques" (1910).] - -[Sidenote: Commerce and Industry.] - -[p] 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, [p] 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, [p] 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 -propriete industrielle du 20 mars 1883 et les conferences de revision -posterieures" (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, [p][p] 462 and 471.] - -[Footnote 984: See Martens, N.R.G. 3rd Ser. I. p. 874.] - -[Sidenote: Agriculture.] - -[p] 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, [p] 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.] - -[p] 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.] - -[p] 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, [p] 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.] - -[p] 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.] - -[p] 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, [p] 471_b_.] - -[Sidenote: Pharmacopoeia.] - -[p] 591. On November 29, 1906, Great Britain, Germany, Austria-Hungary, -Belgium, Bulgaria, Denmark, Spain, the United States of America, France, -Greece, Italy, Luxemburg, Norway, Holland, Russia, Servia, Sweden, and -Switzerland signed at Brussels an agreement concerning the Unification -of the Pharmacopoeial Formulas for Potent Drugs.[1006] - -[Footnote 1006: See Martens, N.R.G. 3rd Ser. I. p. 592, and Treaty -Series, 1907, No. 1.] - -[Sidenote: Humanity.] - -[p] 592. In the interest of humanity two Unions--although the term "Union" -is not made use of in the treaties--are in existence, namely, that -concerning Slave Trade and that concerning the so-called White Slave -Traffic. - -(1) A treaty concerning slave trade[1007] was already in 1841 concluded -between Great Britain, Austria, France, Prussia, and Russia. And article -9 of the General Act of the Berlin Congo Conference of 1885 likewise -dealt with the matter. But it was not until 1890 that a Union for the -suppression of the slave trade came into existence. This Union was -established by the General Act[1008] of the Brussels Conference, signed -on July 2, 1890, and possesses two International Offices,[1009] namely, -the International Maritime Office at Zanzibar and the Bureau Special -attached to the Foreign Office at Brussels. The signatory Powers -are:--Great Britain, Austria-Hungary, Belgium, Congo Free State, -Denmark, France, Germany, Holland, Italy, Persia, Portugal, Russia, -Spain, Sweden-Norway, the United States of America, Turkey, and -Zanzibar. Liberia acceded later. - -[Footnote 1007: See above, [p] 292, p. 368, note 2.] - -[Footnote 1008: See Martens, N.R.G. 2nd Ser. XVI. p. 3.] - -[Footnote 1009: See above, [p] 468.] - -(2) On May 18, 1904, an Agreement for the Suppression of the White -Slave Traffic[1010] was signed at Paris by Great Britain, Germany, -Belgium, Denmark, Spain, France, Italy, Holland, Portugal, Russia, -Sweden-Norway, and Switzerland. Brazil and Luxemburg acceded later. A -further Agreement concerning the subject was signed at Paris on May 4, -1910, by thirteen States, but has not yet been ratified. - -[Footnote 1010: See Martens, N.R.G. 2nd Ser. XXXII. p. 160, and Treaty -Series, 1905, No. 24--See also Butz, "Die Bekaempfung des Maedchenhandels -im internationalen Recht" (1908); Rehm in Z.V. I. (1907), pp. 446-453.] - -[Sidenote: Preservation of Animal World.] - -[p] 593. Two general treaties are in existence for the purpose of -preserving certain animals in certain parts of the world:-- - -(1) In behalf of the preservation of wild animals, birds, and fish in -Africa, the Convention of London[1011] was signed on May 19, 1900, by -Great Britain, the Congo Free State, France, Germany, Italy, Portugal, -and Spain; Liberia acceded later. However, this convention has not yet -been ratified. - -[Footnote 1011: See Martens, N.R.G. 2nd Ser. XXX. p. 430.] - -(2) In behalf of the prevention of the extinction of the seals in the -Behring Sea, the Pelagic Sealing Convention[1012] of Washington was -signed on July 7, 1911, by Great Britain, the United States of America, -Japan, and Russia, but has not yet been ratified. - -[Footnote 1012: See above, [p] 284.] - -[Sidenote: Private International Law.] - -[p] 594. Various general treaties have been concluded for the purpose of -establishing uniform rules concerning subjects of the so-called Private -International Law:-- - -(1) Already on November 14, 1896, a general treaty concerning the -conflict of laws relative to procedure in civil cases was concluded at -the Hague. But this treaty was replaced by the Convention[1013] of the -Hague of July 17, 1905, which is signed by Germany, Austria-Hungary, -Belgium, Denmark, Spain, France, Italy, Luxemburg, Norway, Holland, -Portugal, Roumania, Russia, Sweden, and Switzerland. - -[Footnote 1013: See Martens, N.R.G. 3rd Ser. II. p. 243.] - -(2) On June 12, 1902, likewise at the Hague, were signed three -conventions[1014] for the purpose of regulating the conflict of laws -concerning marriage, divorce, and guardianship. The signatory Powers are -Germany, Austria-Hungary, Belgium, Spain, France, Italy, Luxemburg, -Holland, Portugal, Roumania, Sweden, and Switzerland. - -[Footnote 1014: See Martens, N.R.G. 2nd Ser. XXXI. pp. 706, 715, 724.] - -(3) Again at the Hague, on July 17, 1905, were signed two conventions -for the purpose of regulating the conflict of laws concerning the effect -of marriage upon the personal relations and the property of husband and -wife, and concerning the placing of adults under guardians or curators. -The signatory Powers are Germany, France, Italy, Holland, Portugal, -Roumania, and Sweden.[1015] - -[Footnote 1015: Meili and Mamelok, "Das internationale Privat und -Zivilprozessrecht auf Grund der Haager Konventionen" (1911), offers a -digest of all the Hague Conventions concerned.] - -[Sidenote: American Republics.] - -[p] 595. The first Pan-American Conference held at Washington in 1889 -created the International Union of the American Republics for prompt -collection and distribution of commercial information.[1016] This Union -of the twenty-one independent States of America established an -International Office at Washington, called at first "The American -International Bureau," but the fourth Pan-American Conference, held at -Buenos Ayres in 1910, changed the name of the Office[1017] to "The -Pan-American Union." At the same time this conference considerably -extended[1018] the scope of the task of this Bureau to include, besides -other objects, the function of a permanent commission of the -Pan-American Conferences which has to keep the archives, to assist in -obtaining the ratification of the resolutions and conventions adopted, -to study or initiate projects to be included in the programme of the -conferences, to communicate them to the several Governments, and to -formulate the programme and regulations of each successive conference. - -[Footnote 1016: See Barrett, "The Pan-American Union" (1911).] - -[Footnote 1017: See above, [p] 467_a_.] - -[Footnote 1018: See Reinsch, "Public International Unions" (1911), p. -117.] - -[Sidenote: Science.] - -[p] 596. In the interest of scientific research the following Unions[1019] -have been established:-- - -[Footnote 1019: The conventions which have created these Unions would -seem to be nowhere officially published and are, therefore, not to be -found in the Treaty Series or in Martens. The dates and facts mentioned -in the text are based on private and such information as can be gathered -from the _Annuaire de la Vie Internationale_, 1908-1909, pp. 389-401.] - -(1) On October 30, 1886, Great Britain, Germany, Argentina, -Austria-Hungary, Belgium, Denmark, Spain, the United States of America, -France, Greece, Italy, Japan, Mexico, Norway, Holland, Portugal, -Roumania, Russia, Sweden, and Switzerland signed a convention at Berlin -for the purpose of creating an International Geodetic Association. -Already in 1864 a number of States had entered at Berlin into an -Association concerning geodetic work in Central Europe, and in 1867 the -scope of the association was expanded to the whole of Europe, but it was -not until 1886 that the geodetic work of the whole world was made the -object of the Geodetic Association. The convention of 1886, however, was -revised and a new convention was signed at Berlin on October 11, -1895.[1020] The Association, which arranges an international conference -every three years, possesses a Central Office at Berlin. - -[Footnote 1020: For the text of this Convention, see _Annuaire de la Vie -Internationale_, 1908-1909, p. 390.] - -(2) On July 28, 1903, was signed at Strasburg a convention for the -purpose of creating an International Seismologic Association. This -convention was revised on August 15, 1905, at Berlin.[1021] The -following States are parties:--Great Britain, Germany, Austria-Hungary, -Belgium, Bulgaria, Canada, Chili, Spain, the United States of America, -France, Greece, Italy, Japan, Mexico, Norway, Holland, Portugal, -Roumania, Russia, Servia, and Switzerland. The Association, which -arranges an international conference at least once in every four years, -has a Central Office at Strasburg. - -[Footnote 1021: The text of this Convention is not published in the -_Annuaire de la Vie Internationale_, 1908-1909, but its predecessor of -1903 is published there on p. 393.] - -(3) On May 11, 1901, a convention was signed at Christiania for the -International Hydrographic and Biologic Investigation of the North -Sea.[1022] The parties are Great Britain, Germany, Belgium, Denmark, -Holland, Norway, Russia, and Sweden. The Association possesses a Central -Office. - -[Footnote 1022: For the text of this Convention, see _Annuaire de la Vie -Internationale_, 1908-1909, p. 397.] - - - - -INDEX - - -A - - Abandoned river-beds, 302 - Abdicated monarchs, 432 - Absorption of a State, 127 - Abuse of flag, 336 - Abyssinia, independence of, 76, 145, 147, 156, 164 - Accession to treaties, 568 - Accretion of territory: - abandoned river-beds, 302 - alluvions, 300 - artificial formations, 299 - conception of, 299 - deltas, 300 - different kinds of, 299 - new-born islands, 301 - Acosta, 97 - Acquisition of territory, 281-284 - Acquisition of territory by individuals and corporations, 282 - Acts, 551 - Adhesion to treaties, 569 - Administration of territory by a foreign Power, 232 - Aegi, case of, 496 - Africa: - notification of future occupations on the coast of, 294, 590 - preservation of wild animals in, 623 - African states, 164, 165 - Agadir, German action at, 76 - Agent consular, 486 - Agents lacking diplomatic or consular character, 509 - _Agents provocateurs_, 510 - Agricultural Institute, International, 518, 617 - Agriculture, Convention for preservation of birds useful to, 618 - Aix-la-Chapelle: - Congress of (1818), 67, 444, 566, 588 - Peace treaty of (1668), 62; - (1748), 64 - Aland Islands, 277, 564 - Alaska boundary dispute, 272, 320 - Alcazar, case of, 220 - Alcorta, 97 - Alexander II. of Russia, assassination of, 416, 418, 420 - Alexander VI., Pope, 316 - Alexandria, International Court of appeal at, 499 - Algeciras, International Conference of, 75, 156 - Algeria, trade between France and, 608 - Aliens Act, the, 391 - Aliens: - Act for the registration of, 398 - expulsion of, 399-403 - how far they can be treated according to discretion, 397 - in Eastern countries, 395 - protection to be afforded to, 397 - reception of, 390 - reconduction of, 402 - right of asylum of, 392 - subjected to territorial supremacy, 393 - their departure from the foreign country, 398 - under protection of their home State, 395 - Alliances: - _casus foederis_, 599 - conception of, 595 - conditions of, 598 - different kinds of, 597 - parties to, 597 - Alluvion, 300 - Alsace, 279, 291 - "Alternat" clause, the, 173 - Amakouron, river, 242 - Ambassadors, 57, 444. _See also_ Diplomatic envoys. - Ambrose Light, case of the, 342 - Amelia Island, case of the, 186 - American International Bureau, 517, 624 - American Civil War, 70 - Amos, Sheldon, 94 - Andorra, international position of, 146 - Anglo-French Agreement (1904), 278, 539 - Anglo-Japanese Alliance, text of, 596 - Anna, case of the, 301 - Annexation, 303 - Anti-Slavery Conference at Brussels, 368, 517, 560 - Antivari, port of, 327 - Antoninus Pius, 315 - Anzilotti, 104 - _Apocrisiarii_, 437 - Aral, Sea of, 245, 321 - Arbitration: - International Court of, 79, 274, 278, 372, 410, 503 - Permanent Court of, suggested in 1306 by Pierre Dubois, 58 - Tribunal at Paris (1893), 352 - Armed forces on foreign territory, 500. _See also_ Jurisdiction. - Armed neutrality, first (1780), 64 - Army of Occupation, jurisdiction of, 503 - Art, Union for the protection of works of, 516, 615 - Artificial boundaries, 270 - Artificial formation of territory, 299 - Asiatic States, 164, 165 - Asylum of criminals: - in foreign countries, 392 - in hotels of diplomatic envoys, 461 - in men-of-war and other public vessels abroad, 507 - Atmosphere, territorial, 236 - Attaches of Legation, 472 - Attentat clause, the Belgian, 416, 421 - _Aubaine, droit d'_, 398 - Aubespine, case of L', 459 - Austin, 5, 98 - Austria-Hungary as a real union, 134 - Authentic interpretation, 582 - Aviation, 236 - _Avulsio_, 300 - Awards of the Court of Arbitration, 521 - Ayala, 84 - Azoff, Sea of, 321 - Azuni, 320 - - -B - - Baker, Sir Sherston, 94 - Balance of power, 62, 65, 80, 193, 289, 307 - Baltic, the, 248, 267 - maintenance of status quo in the, 604 - Bancroft treaties, 389 - Barbeyrac, 90 - Barents Sea, 266 - Barima, river, 242 - Bass, case of De, 459 - Batoum, 539, 575, 579 - Bavaria sends and receives diplomatic envoys, 441 - Bay: - of Cancale, 262 - of Chesapeake, 262, 263 - of Conception, 262, 263 - of Delaware, 262, 263 - of Stettin, 263 - Bays, 262 - Bearers of despatches, 511, 512 - Beckert, case of, 474 - Behring Sea Award Act (1894), 352 - Behring Sea conflict between Great Britain and United States, - 320, 351 - Belgium, independence of, 68, 312 - neutralisation of, 152, 588 - Belle-Isle, case of Marechal de, 471 - Belli, 84 - Bello, 97 - Bentham, 4, 88 - Berlin: - Congo Conference of (1884-85), 72, 153, 368, 514, 537, 590, 605 - Congress of (1878), 71, 118, 272, 368, 514 - Decrees of, 65 - Treaty of (1878), 71, 76, 327, 364, 369, 387, 575, 576, 579, 590 - Bernard, 102 - Berne Convention, 615 - Bill of lading, 331 - Binding force of treaties, 541, 545, 546 - Biologic investigation of the North Sea, 626 - Birds: - in Africa, preservation of, 623 - useful to agriculture, Convention for the preservation of, 618 - Birkenfeld, 230 - Birth, acquisition of nationality by, 375 - Black Sea, 247, 268, 269, 321 - neutralisation of, 70, 325, 575 - Blockade, 63, 335, 538, 588 - of Venezuela, 74 - Bluntschli, 36, 96, 99 - Bodin, 111, 112 - Bombardments, convention concerning, 594 - Bon, 96 - Bonfils, 95, 100 - Bornemann, 97 - Bosnia and Herzegovina, international position of, 77, 233, 576 - Bosphorus and Dardanelles, 247, 266, 267, 268, 321 - Boundaries of State territory, 270-273 - Boundary: - Commissions, 272 - dispute, 272, 296 - mountains, 272 - waters, 270 - Boundary dispute: - between Great Britain and Venezuela, 198, 242 - Louisiana, 295 - Oregon, 295 - Boundary treaty: - between Great Britain and the United States, 272 - of Buenos Ayres (1881) between Argentina and Chili, 267, 564, - 592 - Bounties on sugar, Convention concerning, 515, 617 - Brazil, international position of, 72, 312 - Bristol Channel, 266 - British seas, 317 - Brooke, Sir James, Sovereign of Sarawak, 282 - Brunus, 84 - Brussels: - Anti-Slavery Conference of, 368, 517, 560, 591 - Conference of (1874), 71, 552 - Convention concerning sugar, 515, 617 - Bry, 95 - Buddhist States, 30, 154 - Buenos Ayres, Boundary treaty of (1881), between - Argentina and Chili, 267, 564, 592 - Buffer States, 148 - Bulgaria: - a party to the Hague Peace Conferences, 534 - international position of, 71, 183, 576 - _Bulletin des Douanes_, 517 - Bulmerincq, 96, 100 - Bumboats in the North Sea, 338, 351 - _Bundesrath_, the, 433, 516, 546 - _Bundesgericht_, the, 417 - Burlamaqui, 90 - Burroughs, Sir John, 319 - Bynkershoek, 91, 320 - - -C - - Cabotage, 258, 606 - Calhoun, 115 - Callao, revolutionary outbreak at, 342 - Calvo, 97, 99 - Campos, 97 - Canals, 248-254 - Cancale, bay of, 262 - Cancellation of treaties on account of: - subsequent change of status of a party, 579 - their inconsistency with subsequent rules of International Law, - 578 - their violation by one of the parties, 579 - war, 580 - Canning, case of George, 532 - Canning, case of Sir Stratford, 451 - Canonists, 55 - Canon Law, 8 - Cape Breton Island, restitution of, to France, 566 - Capitulations, 395, 482, 497 - Capture in maritime war, Convention concerning, 594 - Carlowitz, Peace Treaty of, 63 - Carnazza-Amari, 96 - Carnot, assassination of, 418, 420 - Caroline, case of the, 187, 501 - Caroline Islands, sold by Spain to Germany, 288 - Carthagena, rebel men-of-war at, 342 - Casa Blanca incident, the, 502 - Casanova, 96 - Caspian Sea, 246 - Castione, case of, 415 - Castlereagh, Lord, 412 - _Casus foederis_, 599 - Cavour, Count, 426 - Cellamare, case of Prince, 459 - Celsus, 315 - Central American Court of Justice, 525 - Ceremonials, maritime. _See_ Maritime ceremonials. - Certificate of registry, 331 - Cession of territory, 285-291 - acquisition of nationality through, 289, 377 - Ceylon, pearl fishery off the coast of, 348 - Chablais and Faucigny, 279, 286 - Chalmers, 103 - Chambers of Reunion (1680-1683), 62 - Changes in the condition of States, 121-125 - Channel: - Bristol, 266 - North, 266 - St. George's, 266 - Channel tunnel, proposed, 359 - _Chapelle, droit de_, 467 - _Charges d'Affaires_, 445-481. _See also_ Diplomatic envoys. - _Charges des Affaires_, 445 - Charkieh, case of the, 507 - Charles I., 319 - Charlton, case of Porter, 408 - Charter-party, 332 - Chesapeake, Bay of, 262, 263 - China, international position of, 164 - China and Japan, war between, 72 - Cholera. _See_ Sanitary Conventions. - Christiania, Treaty of, 75, 135 - Christina, Queen of Sweden, 431 - "Citizen" and "subject" of a State synonymous in - International Law, 370 - Civilians, the, 55 - Clayton-Bulwer Treaty, 251 - Coasting trade, 258, 606 - Code of signals, International, 333 - Codification of International Law, 35 - Collective guarantee, treaties of, 601 - Collision at sea, 334 - Colonial States cannot be parties to international - negotiation, 530 - Colonies rank as territory of the motherland, 231 - Comity of Nations, 24, 261 - Commercial Code of Signals, 333, 334 - Commissaries, 511 - Commissions, International, 512-515 - in the interest of: - fisheries, 513 - foreign creditors, 515 - navigation, 513 - sanitation, 515 - sugar, 515 - Common Consent, 16 - Como, Lake of, 245 - Composite International Persons, 132-140 - Compromise clause, 583 - Conception, Bay of, 262, 263 - Concert, European, 170 - Concordat, 161 - _Condominium_, 232, 272 - Confederate States, 133, 135 - Conferences. _See_ Congresses. - Congo, river, 242 - Congo Commission, the international, 242 - Congo Conference of Berlin, 72, 368, 514, 537, 590, 605 - Congo Free State: - annexation of, 76 - merged in Belgium, 34, 287 - neutralisation of, 153 - recognition of, 73 - Congresses, international: - cannot be distinguished from Conferences, 533 - conception of, 533 - envoys representing states at, 443, 453 - parties to, 534 - permanent, suggested by Podiebrad, 58 - procedure at, 535 - reception of envoys at, 452 - Conquest, 302. _See also_ Subjugation. - _Conseil sanitaire maritime et quarantenaire_ at - Alexandria, 515 - _Conseil superieur de sante_ at Constantinople, 515 - _Consolato del mare_, 56 - Constance, Lake of, 246 - Constantinople: - Conference of (1885-6), 71 - Treaty of (1888), 514, 591 - Constitution, case of the, 507 - Constitutional restrictions concerning the treaty-making - power, 545 - Constitutional system, 68 - Consular Act, 484 - Consular districts, 485 - Consul-general, 486 - Consular jurisdiction in non-Christian States, 497 - Consular officers, 485 - Consular service, British, 487 - Consuls: - appointment of, 487-490 - archives of, 495, 496 - consular organisation, 485 - _consules missi and electi_, 485 - consular districts, 485 - different classes of, 486 - functions of, 480, 490-493 - general character of, 484 - informal appointment of, 490 - in non-Christian States, 497 - in the fifteenth century, 483 - no obligation to admit, 488 - non-professional, 495 - position and privileges of, 493-495 - qualification of, 487 - subordinate to diplomatic envoys, 487 - termination of consular office, 496 - the institution of, 482 - _Consuls Marchands_, 482 - Contiguity, right of, 295 - Contraband, 335 - Contract debts, recovery of, 192, 592 - _Conventio omnis intelligitur rebus sic stantibus_, 573 - Convention, 551: - Anglo-French (1904), 278 - concerning matters of international administration, 79 - concerning the North Sea Fisheries, 349 - concerning radiotelegraphy, 236, 355 - for the protection of submarine cables, 354 - Co-operation, 189 - Copenhagen: - Peace Treaty of, 63 - Treaty (1857) abolishing Sound dues, 268 - Copyright: - Union concerning, 615 - Acts concerning, 616 - Corinth Canal, 248 - Corps, diplomatic, 446 - Corsica, pledged by Genoa to France, 233, 288 - Costa Rica Packet, case of the, 217 - Councillors of Legation, 472 - Couriers, 472, 473, 475. _See also_ Retinue of envoy. - Courland merged in Russia, 124, 287 - Court of Arbitration. _See_ Arbitration. - Court of Justice, Central American, 525 - Cracow, republic of, 151, 310 - Creasy, Sir Edward Shepherd, 94 - Crete: - international position of, 72, 144 - possesses no right of legation, 441 - Crews of men-of-war, their position when on land abroad, 508 - Crime: - against the Law of Nations, 209 - extraditable, 408 - political, 415 - Crimean war, 68 - Cromwell, 172, 459 - Crucee, Emeric, 58 - Cruchaga, 97 - Cuba: - independence of, 72, 181 - intervention in, 190 - Cuban debt, 132 - _Culte, droit du_, 467 - Cumberland, Duke of (1837), 433 - Cussy, 102 - Custom, as source of International Law, 16, 22, 23 - Custom tariffs, Union for publication of, 616 - office of the Union for publication of, 517 - Customs Laws Consolidation Act, 608 - Cutting, case of, 205 - Cyprus, international position of, 233 - - -D - - Danish fleet, case of, 186 - Danube, navigation on the, 71, 242 - Danube Commission, 242, 513 - Dardanelles, 247, 266, 267, 268, 321 - Davis, 95 - Dead Sea, 244, 321 - Death: - of consul, 496 - of diplomatic envoy, 480 - De Bass, case of, 459 - Debts to be taken over by the succeeding State, 131, 287 - Declaration: - of Brussels, 37 - of London, 78, 343, 537, 538, 560, 585, 595 - of Paris, 12, 68, 537, 569, 588 - of St. Petersburg, 70, 537, 590 - Declarations, 551 - three kinds of, 536 - _De facto_ subjects, 372 - De Jager _v._ Attorney-General for Natal, 394 - Delagoa Bay, case of, 314 - Delaware, Bay of, 262, 263 - Delinquency, international, 209 - _Delits complexes_, 415 - Delta, 300 - Delusion and error in parties to treaties, 547 - Deniers of the Law of Nations, 89 - Denization, 381, 383 - Denmark, 186 - her sovereignty over the Baltic, 316 - Deposed monarchs, 432 - Deprivation, loss of nationality through, 378 - _De Recuperatione Terre Sancte_, 58 - Derby, Lord, 601 - Dereliction of territory, 313 - Deserters not to be extradited, 409 - Despagnet, 95, 100 - Despatches, sealed, transmission through belligerents' lines, - 471 - Diena, 96 - Dignity of States, 174-177 - Diplomacy, 438 - language of, 439 - Diplomatic corps, 446 - Diplomatic envoys: - appointment of, 446-448 - ceremonial and political, 443 - classes of, 66, 443-481, 588 - death of, 480 - dismissal through delivery of passports, 455, 478 - exempt from criminal and civil jurisdiction, 458, 464 - exempt from police regulations, 466 - exempt from subpoena as witnesses, 465 - exempt from taxes, &c., 467 - exterritoriality of, 460 - family of, 474 - found on enemy territory by a belligerent, 471 - functions of, 453 - immunity of domicile of, 461 - injurious acts of, 215 - interference with affairs of third States by, 472 - interference in internal politics by, not permitted, 455 - inviolability of, 457-466 - official papers of, 447, 458, 478, 480 - persons and qualifications of, 446 - position of, 455 - privileges of, 456 - promotion of, 478 - recall of, 477 - reception of, 449-452 - refusal to receive certain individuals as, 450 - retinue of, 472-475 - request for, and delivery of, passports, 478 - right of chapel of, 467 - self-jurisdiction of, 468 - servants of, 474 - suspension of mission of, 476 - termination of mission of, 476-481 - travelling through third States, 469 - Diplomatic usages, 439 - Discovery, inchoate title of, 294 - Discretion of States: - to admit aliens, 391 - to appoint envoys, 446 - to conclude extradition treaties, 406 - to expel aliens, 400 - to protect their citizens abroad, 396 - to receive and send envoys, 440 - to recognise new heads of States, 426 - Dissolution of treaties: - in contradistinction to fulfilment, 570 - through mutual consent, 571 - through vital change of circumstances, 572 - through withdrawal by notice, 571 - Dogger Bank, case of the, 219 - Domicile: - of envoys abroad, 474 - through naturalisation, 375, 379 - Domin-Petrushevecz, 36 - Doyen of the diplomatic corps, 446 - Drago doctrine, 192 - _Droit_: - _d'aubaine_, 398 - _de chapelle_, 467 - _de convenance_, 184 - _d'enquete_, 336 - _d'etape_, 278 - _de preseance_, 172 - _de recousse_, 347 - _de renvoi_, 402 - _du culte_, 467 - Dubois, case of, 465 - Dubois, Pierre, 58 - Duke of Brunswick _v._ King of Hanover, 433 - Duke of Cumberland, 433 - Dum-dum bullets, 592 - Dumont, 102 - Dunkirk, fortification of, 183, 583 - Duplessix, E., 37 - - -E - - Eastern countries: - Consuls in, 497 - Protection of individuals in, 372, 395 - Effect of treaties: - how affected by changes in government, 562 - upon the parties, 561 - upon the subjects of the parties, 562 - upon third States, 563 - Effective occupation. _See_ Occupation. - Egypt, international position of, 142, 164, 498 - international courts in, 498 - possesses no right of legation, 441 - Elizabeth, Queen, 318, 459 - Emigration, 373 - loss of nationality through, 378 - Emperor William Canal, 248 - Enclosure, 230 - Enemy goods covered by neutral flag, 588 - _Enquete, droit d'_, 336 - Envoys extraordinary, 444, 445 - Equality of States, 20, 168 - Equilibrium, 80. _See also_ Balance of power. - Erie, Lake, 246, 247 - Error and delusion in parties to treaties, 547 - Estate duty, 398 - _Etape, droit d'_, 278 - European Concert, 170 - European Danube Commission, 513 - Exchange, case of the, 507 - Exchange of State territory, 287 - _Exequatur_: - requisite for consuls, 489, 493, 494, 496 - revoked, 426 - Exclusion of aliens in the discretion of every State, 391 - Expiration, loss of nationality through, 378 - Expiration of treaties: - in contradistinction to fulfilment, 570 - through expiration of time, 571 - through resolutive condition, 571 - Explosives, discharge of from balloons prohibited, 39 - Expulsion of aliens: - from Great Britain, 399 - from Switzerland, 399 - how effected, 402 - in the discretion of every State, 400 - just causes of, 400 - Exterritoriality, 460 - of a monarch's retinue abroad, 431 - of consuls in non-Christian States, 497 - of diplomatic envoys and the members of their suite, 460-469 - of monarchs and the members of their suite, 430 - of men-of-war in foreign waters, 506 - of presidents of republics, 434 - of the wife of a monarch, 430, 431 - Extinction of States, 124 - Extraditable crimes, 409 - Extradition: - conception of, 403 - condition of, 409 - effectuation of, 409 - municipal laws concerning, 406 - no obligation to grant, 404 - of deserters, 409 - of political criminals, 409, 411-422 - treaties of, 392 - treaties stipulating, how arisen, 404 - Extradition Acts, British, 406, 409 - - -F - - Family of Nations: - conditions of membership of, 31, 166 - definition of, 11 - position of States in the, 165 - Faroee Island Fisheries, 353 - Fauchille, 95, 103 - Faucigny, 279, 286 - Federal States, 136 - as regards appointment of envoys by, 138, 441 - as regards appointment of consuls by, 489 - as regards conclusion of treaties by, 544 - Federalist, The, 115, 137 - Female consuls, 488 - Female diplomatic envoys, 446 - Ferguson, 97 - _Fetiales_, 51 - Field, 36 - Final Act of a Congress, 536 - Finance Act (1894), 399 - Fiore, 37, 96, 99 - Fisheries: - around the Faroee Islands, 353 - as servitudes, 278 - in gulfs and bays, 265 - in straits, 266 - in the maritime belt, 258 - in the North Sea, 316, 337, 349 - in the Open Sea, 348-353 - in the White Sea, 348 - off the coast of Iceland, 348, 353 - pearl, off Ceylon, 348 - Fishery Commissions, 513 - Fish in Africa, preservation of, 623 - Fitzmaurice, Lord, 262 - Flag: - abuse of, on the part of vessels, 336 - claims of States to maritime, 326 - claims of vessels to sail under a certain, 329 - commercial, 327 - enemy goods covered by neutral, 588 - special, for bumboats, 351 - verification of, 335, 337 - _Force majeure_, 521, 524 - Foreign Jurisdiction Act (1890), 395, 498 - Foreign Offices, 435 - Foreigner. _See_ Alien. - Forerunners of Grotius, 83 - Form of treaties, 550 - France, as an International person, 122 - _Franchise de l'hotel_, 461 - _du quartier_, 461 - Franconia, case of, 29 - Frankfort: - Peace Treaty of, 290, 291, 606 - subjugation of, 304 - Frederick III., Emperor of Germany, 316 - Frederick William of Brandenburg, 464 - Freedom of action necessary for consent to treaties, 547 - French: - Convention, 35, 65 - Constitution, 412 - Revolution, 65, 98, 411 - Frische Haff, 263 - Fugitive Offenders Act (1881), 406 - Fulfilment of treaties, 570 - Full powers, 447, 544 - Funck-Brentano, 95 - Fundamental rights of States, 165 - - -G - - _Gabella emigrationis_, 398 - Gallatin, case of the coachman of Mr., 474 - Gareis, 96 - General Act of a Congress, 536 - Geneva Convention, 70, 569, 589 - Convention for its adaptation to Naval War, 594 - Geneva, Lake of, 246 - Genoa, her sovereignty over the Ligurian Sea, 316 - Gentilis, 84, 318 - Geodetic Association, International, 625 - Germany, member-States of: - competent to conclude treaties, 544 - recognised as independent, 61, 66 - Ghillany, 102 - Gibraltar, 278 - Good offices, 189, 568 - Gore, American Commissioner, 513 - _Grand_ cabotage, 607 - Great Powers, 3 - hegemony of, 168 - Greece, independence of, 68 - Greeks, their rules for international relations, 49 - Gregoire, Abbe, 35 - Grotians, the, 92 - Grotius, Hugo, 4, 59, 85-88, 283, 318, 438 - Guarantee as a means of securing the performance of treaties, 567 - Guarantee of government or dynasty, 191 - Guarantee, treaties of, 599 - collective, 601 - conception of, 599 - effect of, 600 - pseudo-guarantees, 602-604 - Guebriant, Madame de, 447 - Gulfs, 262 - Gulistan, Treaty of, 246 - Gurney, case of, 473 - Gyllenburg, case of, 459 - - -H - - Haggerty, case of, 489 - Hague: - Convention concerning conversion of merchant ships into war - ships, 505 - Convention (1882), concerning fisheries in the North Sea, 349 - Convention concerning laws and usages of war, 552, 569, 586 - Convention (1887), concerning Liquor Traffic on the North Sea, - 351 - Conventions (1907), 207, 213, 218, 538 - International Court of Arbitration at the, 74, 274, 278, 518 - First Peace Conference at the, 12, 37, 73, 534, 589, 591 - Second Peace Conference at the, 12, 38, 77, 365, 534, 589, 592 - Haiti, 32 - Half-Sovereign States, 141 - cannot send or receive diplomatic envoys, 441 - competent to conclude treaties, 544 - may be parties to international congresses, 534 - Hall, 94, 100 - Halleck, 95, 99 - Hamilton, A., 115 - Hanover: - King of, 433, 450 - subjugation of, 304 - Hanseatic League, 56 - Hartmann, 96, 100 - Havana, Treaty of, 181 - Hay-Pauncefote Treaty, 251, 557, 559, 563, 592 - Hay-Varilla Treaty, 252, 254, 564 - Heads of States, 425-428 - competence of, 427 - honours and privileges of, 428 - injurious acts of, 214 - legitimate, 426, 427 - objects of Law of Nations, 427 - position of, 427 - predicates of, 174 - privileges of, 428 - recognition of new, 425 - usurping, 427 - Health Office, International, 518 - Heffter, 96, 98, 509 - Henry IV. of France, 58 - Herring Fishery (Scotland) Act, 264 - Hertslet, 103 - Herzegovina, international position of, 233, 576 - Hesse-Cassel, subjugation of, 304 - Hinterland, 297 - Hobbes, 4, 89, 112 - Holland, Professor, 85 - Holldack, 104 - Holtzendorff, 96, 100 - Holy Alliance, 66, 68, 196, 413, 544, 596 - Holy Roman Empire, origin of doctrine of servitudes in the, 275 - Holy See, 157-162, 441 - cannot be party to international negotiation, 161, 441 - receives ambassadors of first class, 444 - Hostages as a means of securing the performance of treaties, 566 - Hostilities: - convention relative to the opening of, 593 - convention regarding enemy merchantmen, 593 - Hovering Acts, 261 - Huascar, the, 342 - Hubertsburg, Peace treaty of, 64 - Humanity, Unions in the interest of, 622, 623 - Humbert of Italy, assassination of King, 418, 420 - Hueningen, 279 - Huron, Lake of, 246, 247 - Hutcheson, 90 - Hydrographic investigation of the North Sea, 626 - - -I - - Iceland, fisheries around, 348, 353 - Illegal obligations, 550 - Immoral obligations, 549 - Immunity of domicile, 461, 474 - Independence of States: - consequences of, 178 - definition of, 177 - restrictions upon, 180 - violations of, 179 - Indian vassal States of Great Britain, 142 - Indians, Red, 35 - "Indigenousness," international, 367 - Individuals: - never subjects of International Law, 19, 362 - objects of International Law, 366 - stateless, 366, 387 - _In dubio mitius_, 584 - Industrial property, union for protection of, 616 - office of, 517 - Informing gun, the, 337 - Inquiry, international commissions of, 512 - Institute of International Law, the, 36 - _reglement_ concerning acts of insurgents, 224 - _reglement_ concerning consuls, 494 - _reglement_ concerning men-of-war in foreign ports, 508 - _reglement_ concerning utilisation of flow of rivers, 243 - rules concerning aliens, 391, 401 - rules concerning double and absent nationality, 390 - rules concerning extradition, 410, 417 - rules concerning immunities of diplomatic envoys, 450, 457 - _voeux_ concerning emigrants, 374 - Instructions of diplomatic envoys, 448 - Insurgents and rioters, 223 - Insurgents recognised as a belligerent Power, 107, 119 - do not possess the right of legation, 442 - _reglement_ of the Institute of International Law concerning - acts of, 224 - send public political agents, 509 - Integrate territory, 230 - Intercession, 189 - Intercourse of States, 199-201, 328 - International bureau of the International Court of - Arbitration, 516, 519 - International Code of Signals, 333 - International Commission concerning sugar, 515 - International Commission of the Congo, 514 - International Commission of the proposed Channel Tunnel, - memorandum respecting, 359 - International Commissions, 512 - in the interest of foreign creditors, 515 - of Inquiry, 512 - International Council of Sanitation at Bucharest, 515 - International Court of Arbitration at the Hague: - Awards of, 521 - Bureau of, 519 - deciding Tribunal of, 520 - Permanent Council of, 518 - International Court of Justice, proposed, 524 - International Courts in Egypt, 498 - International crimes, 209 - International delinquencies, 209 - International disputes, convention for the settlement of, 592 - International Health Office, 518 - International Jurists, schools of, 82, 89 - International Law: - basis of, 15 - basis of international relations, 67 - codification of, 35 - definition of, 3 - development of, 45, 59 - dominion of, 30 - factors influencing the growth of, 24 - legal force of, 4 - periodicals relating to, 103, 104 - relations between International Law and Municipal Law, 25 - sources of, 20 - States as subjects of, 19, 107 - International Law Association, the, 37 - International Maritime Committee, conference of (1910), 333, - 339 - International negotiation. _See_ Negotiation. - International offices: - agriculture, 518 - customs tariffs, 517 - health, 518 - industrial property, 517 - maritime office at Zanzibar, 517 - Pan-American Union, 517 - post, 516 - sugar, 517 - telegraphs, 516 - transports, 517 - weights and measures, 516 - works of literature and art, 516 - International personality as a body of qualities, 166 - definition of, 167 - International persons, 107, 121, 125, 132, 154, 162 - International Prize Court, 12, 522 - convention concerning, 594 - International Radiographic Convention, 236, 355 - International Telegraph Union, 614 - International transactions. _See_ Transactions. - Internoscia, Jerome, 37 - Internuncios, 445 - _Interpretatio authentica_, 583 - Interpretation of treaties, 582-586 - Intervention, 81, 188 - admissibility in default of right, 193 - by right, 189 - concerning a treaty concluded by other States, 568 - concerning extradited criminals, 410 - definition of, 188 - for maintaining the balance of power, 193 - in the interest of humanity, 194 - on behalf of citizens abroad, 396 - Ionian Islands, international position of, 146, 286 - Inviolability: - of bearers of despatches, 512 - of commissaries, 511 - of consular buildings, 495 - of consuls in non-Christian States, 497 - of diplomatic envoys, 457-460 - of members of international commissions, 514 - of monarchs abroad, 429 - of presidents of republics, 433, 434 - of public political agents, 510 - Irish Sea, 266 - Isabella, Queen of Spain, 426, 432 - Island, new-born, 301 - Italy as a Great Power, 70, 171 - her "Law of Guaranty" concerning the Pope, 158 - - -J - - Jacquin, case of, 416 - Jade Bay, 263 - James I., 317, 469 - Japan, 33, 72, 171 - and Russia, war between, 74 - conflict with United States concerning Japanese school - children in California, 211 - treaty of alliance with Great Britain, 565 - text of the treaty of alliance, 596 - Jassy, case of the, 507 - Jay, John, 115 - Jay Treaty, article concerning privileges of commissioners, 513 - Jenkins, Sir Leoline, 89 - Jenkinson, 103 - Jews: - not a subject of International Law, 108 - sometime excluded from Gibraltar, 278 - their rules for international relations, 46 - their treatment in Roumania and Russia, 369, 387, 392 - Johann Friederich, case of the, 339 - _Journal Telegraphique_, 516 - _Juges Consuls_, 482 - Jurisdiction, 201-205 - exemption of envoys from, 458, 462-464 - in actions for collision at sea, 334 - in Straits, 266 - of an Army of Occupation, 503 - of monarchs abroad over their retinue, 430 - of States over their citizens in Eastern countries, 395 - on the Open Sea, 203, 329-339 - over armed forces abroad, 501 - over citizens abroad, 202 - over crews of men-of-war when on land abroad, 508 - over foreigners abroad, 204 - over foreign vessels sailing under the flag of a State, 330 - over monarchs as subjects, 433 - over pirates, 345 - within the maritime belt, 260 - _Jus_: - _albinagii_, 398 - _avocandi_, 371 - _fetiale_, 51, 52 - _quarteriorum_, 461 - _repraesentationis omnimodae_, 427 - _sacrale_, 51 - _sanguinis_, 375 - _soli_, 375 - _transitus innoxii_, 470 - - -K - - Kainardgi, Treaty of, 441 - Kalkstein, case of Colonel von, 464 - Kamptz, 103 - Kara Sea, 266 - Kara Straits, 266 - Kardis, Peace Treaty of, 63 - Karlstad, Treaty of, 75 - Katschenowsky, 36 - Kattegat, the, 267 - Keiley, case of, 450 - Kelmis, 232 - Kent, James, 95, 137 - Kertch, Strait of, 267, 321 - Khedive of Egypt, 498 - Kiauchau leased to Germany, 233, 288 - King's Chamber, 263 - Klueber, 95, 98, 103 - Kohler, 104 - Korea: - extinction of treaties of, 128 - merged in Japan, 287 - Koszta, case of Martin, 388 - Kurische Haff, 263 - - -L - - Lado Enclave, leased to Congo Free State, 234 - Laibach, Congress of, 67 - Lakes, 245 - Landlocked seas, 245 - Language of diplomacy, 439 - Law of Guaranty, the Italian, 158 - Law of Nations. _See_ International Law. - Law of Nature, 86 - Law-making treaties, 23, 541, 587-595 - Lawrence, 94, 100 - Lease of territory, 233, 288 - Lebanon, the, 357 - _Le Droit d'Auteur_, 517 - Legation: - combined, 448 - institution of, 435, 438 - members of, 472-475 - papers of the, 478 - right of, 440 - _Legati a latere_ or _de latere_, 444 - _Leges Wisbuenses_, 56 - Legitimacy, doctrine of, 67 - Legnano, 84 - Leibnitz, 102 - _Lese-majeste_, 413, 415 - Letters: - of credence, 447, 476, 477, 479, 509 - of marque, 341, 342 - of recall, 477 - of recommendation, 509, 510 - _Lettre_: - _de creance_, 447 - _de provision_, 477 - _de recreance_, 477 - Levi, Leone, 37, 94 - Liberia, 32 - Lichtenstein, neither sends nor receives permanent diplomatic - envoys, 449 - Lieber, 36 - Lincoln, assassination of, 418, 420 - Liquor Traffic among North Sea Fishermen, Convention - concerning, 351 - Liszt, 96, 101 - Literature, Union for the protection of works of, 516, 615 - Log-book, 331 - Locke, John, 112 - Lombardy, ceded in 1859 by Austria to France, 288 - Lomonaco, 96 - London: - Conference of (1871), 70, 575 - Convention of (1841), 268 - Convention of (1884), 181 - Convention of (1901), concerning fisheries, 353 - Declaration of, 78, 343, 537, 538, 560, 585, 595 - Declaration of, concerning Egypt and Morocco, 249 - Naval Conference of, 38, 39, 43, 78, 595 - Treaty (1831), 588 - Treaty (1840), 555 - Treaty (1841), 268, 368 - Treaty (1867), 589 - Treaty (1871), 247, 269, 325 - Treaty (1883), 514, 587 - Treaty (1906), 76, 156 - Treaty (1908-9), 38 - Lorenzelli, 160 - Lorimer, James, 94, 100 - Lorraine, 291 - Loss of territory, 311 - Louis XI. of France, 111 - Louisiana boundary dispute, 295 - Louter, De, 97 - _L'Union Postale_, 516 - Luxemburg, neutralisation of, 152, 289, 590 - Lymoon Pass, 266 - - -M - - Macartney _v._ Garbutt, 450, 467 - Mackintosh, Sir James, 412 - McGregor, adventurer, 186 - McLeod, case of, 501 - Madagascar, annexed by France, 147, 539 - Madison, J., 115 - Magellan, Straits of, 267, 564 - Maine, Sir Henry Sumner, 94 - Maine, the river, 241 - Mancini, 36 - Manifest of cargo, 331 - Mankind, rights of, 35, 367 - Manning, 94, 98 - Mardyck, port of, 583 - _Mare clausum_, 318 - _Mare liberum_, 318 - Marini, Antoine, 58 - Marino, international position of San, 146 - Maritime belt, 255-261 - Maritime ceremonials, 176, 258, 317, 326 - Maritime Conference: - of London, 38, 39, 43, 78, 595 - of Washington, 333 - of Brussels, 333, 339 - Maritime Conventions Bill, 333, 339 - Maritime office at Zanzibar, 517 - Marmora Sea, 321 - Martens, Charles de, 92 - Martens, F. von, 97, 100 - Martens, G. F. von, 91, 102, 320 - Mary, Queen, 317 - Matzen, 97 - Maxey, 95, 101 - Means of securing performance of treaties, 565 - guarantee, 567 - hostages, 566 - oaths, 565 - occupation of territory, 566 - pledge, 566 - Measures. _See_ Weights and Measures. - Mediation, 189, 568 - Mediterranean, maintenance of status quo in the, 603 - Mehemet Ali, 555 - Mendoza, Spanish Ambassador, 318 - case of, 459 - Men-of-war: - admittance to maritime belt, 260 - admittance to gulfs, 265 - admittance to straits, 267 - excluded from the Bosphorus, 268 - in foreign waters, 504 - in revolt, 504 - on the Open Sea, 325, 326 - position in foreign waters, 235, 506 - position of crew on land abroad, 508 - proof of character, 505 - powers over merchantmen, 335, 337 - shipwrecked, 504 - Merchantmen. _See_ Merchant ships _and_ Navigation. - Merchant Shipping Act (1873), 333 - Merchant Shipping Act (1894), 330, 331, 332, 333, 337 - Merchant ships, conversion into war ships, 593 - Merger of States, 124, 127, 372 - Merignhac, 95 - Metternich, Prince, 249 - Metric system, Convention concerning, 619 - Meunier, case of, 415 - Meuse, the, 241 - Mines: - Convention concerning, 593 - in the subsoil of the sea bed, 357 - Ministers Plenipotentiary, 445 - Ministers Resident, 445, 588 - Miruss, 103 - Mixed Commission of the Danube, 514 - Mohammedan States, 30, 154 - Mohl, 103 - Moldavia, 441 - Monaco, international position of, 146 - Monaldeschi, case of, 431 - Monarchs: - acts of violence committed by foreign, 431 - consideration due to, 429 - deposed or abdicated, 432 - exterritoriality of, 430 - in the service of, or subjects of, foreign Powers, 432 - position of wife of, 430, 431 - residence of, 430 - retinue of, abroad, 431 - sovereignty of, 428 - travelling incognito, 431 - Monetary Conventions, 619 - Monetary Conference, International, 619 - Monroe Doctrine, 67, 196 - Montagnini, case of, 160 - Montenegro: - independence of, 71; - restricted, 183 - restricted to a commercial flag only, 327 - Monti, case of Marquis de, 472 - Moore, 95, 101 - Moors in Gibraltar, 278 - Moray Firth, case of the, 264 - Moresnet, 232, 273 - Morocco: - independence of, 75, 156, 164 - protection of natives by foreign Powers, 372 - treaties of (1863 and 1880), 373 - Mortensen _v._ Peters, case of, 264 - Moselle, the river, 241 - Moser, 91 - Most-favoured-nation clause, 563, 585, 606, 610 - Motor vehicles, circulation of, 615 - Motor Car (International Circulation) Act, 615 - Mulhouse merged in 1798 in France, 287 - Municipal Law: - in conflict with treaty obligations, 578 - not identical with law in general, 9, 14 - relations between International and Municipal Law, 25 - respecting offences against foreign States, 222 - Murdered rulers, 418, 420 - Muscat Convention, 373 - Muscat Dhows, case of the, 372 - Muster Roll, 331 - Mutinous crew, 343 - - -N - - Names of vessels, 332, 350 - Napoleon I., 65, 183 - Napoleon III., 416, 470 - Narrow Seas: - sovereignty of Great Britain over the, 266, 316 - Nassau, subjugation of, 304 - National. _See_ Citizen. - Nationality: - absent, 383, 387 - acquisition of, 306, 374 - conception of, 369 - difficulties arising from double and absent nationalities, 388 - double, 383, 384 - function of, 370 - loss of, 377 - principle of, 68, 81 - the link between individuals and International Law, 366 - Natural boundaries, 270 - Natural boundaries _sensu politico_, 273 - Naturalisation Acts, British, 377, 381, 382, 383 - Naturalisation in Great Britain, 382 - Naturalisation: - acquisition of nationality by, 375 - conception of, 379 - conditions of, 380 - loss of nationality through, 378, 381 - object of, 380 - through grant on application, 376 - Naturalists, the, 89 - Naval Conference of London, 38, 39, 43, 78, 595 - Naval war code of the United States, 38 - Navigation: - Commissions in the interest of, 513 - in gulfs and bays, 265 - in straits, 266 - in the Suez Canal, 513, 514 - on rivers, 240-243, 588 - on the Congo, 514 - on the Danube, 513 - on the Open Sea, 319, 324 - supervised by consuls, 491 - through the Straits of Magellan, 267 - within and through the maritime belt, 259, 326 - _See also_ Open Sea. - Navigation Act, 607 - Neckar, river, 241 - Negotiation: - by whom conducted, 531 - conception of, 529 - end and effect of, 532 - envoy's function of, 453 - form of, 531 - parties to, 529 - purpose of, 530 - Negro Republics, 32 - _Nemo plus juris transferre potest, quam ipse habet_, 288 - _Nemo potest exuere patriam_, 381 - _Ne quis invitus civitate mutetur, neve in civitate maneat - invitus_, 381 - Netherlands, revolt of, 312 - Neutralisation of the Black Sea, 575 - Neutralised States, 147-154 - as regards State servitudes, 278 - cannot cede territory without consent of the Powers, 286 - can be parties to defensive alliances, 597 - Neutral Powers in Naval War, Convention concerning the rights - and duties of, 594 - Newfoundland fishery dispute, 278 - New Hebrides, international position of, 232 - Niemeyer, 103 - Niger, river, 242 - Night work of women, Convention for the prohibition of, 618 - Nikitschenhow, case of, 463 - Nillins, case of, 407 - Non-Christian States, 154-156 - Non-extradition: - Attentat clause of, 416, 421 - principle of, 411-422 - rationale for, 418 - Russian proposal concerning, 416, 421 - Swiss solution of, 417, 421 - North Atlantic coast fisheries, case of, 275, 276, 278 - North Channel, 266 - North Pole, 292 - North Sea fisheries, 337, 349 - Convention for the regulation of, 349 - North Sea: - hydrographic and biologic investigation of, 626 - maintenance of status quo in the, 603 - Norway, international position of, 75 - Notarial functions: - of consuls, 492 - of diplomatic envoys, 454 - Notification: - as an international transaction, 537 - of a change in the headship of a State, 425 - of occupation, 294 - Nuncios, 444 - Nymeguen, Treaty of, 62 - Nys, 97, 101, 103 - Nystaedt, Treaty of, 63 - - -O - - Oath as a means of securing performance of treaties, 551, 565 - Observation, envoy's function of, 454, 455 - Occupation of territory, 291-298 - as a means of securing the performance of treaties, 566 - conception of, 291 - extent of, 295 - how affected, 292 - notification of, 294 - object of, 292 - _Office central des transports internationaux_, 517 - Offices, international, 515-518 - Official publications, 620 - Oleron, Laws of, 56 - Oliva, Peace Treaty of, 63 - Olivart, Marquis de, 97, 103 - _Omnia rex imperio possidet, singuli dominio_, 283 - Ompteda, 103 - Ontario, Lake of, 246, 247 - Open Sea, 315 - ceremonials on, 326 - claims to sovereignty over parts of, 316 - collisions on, 333 - conception of, 321 - fisheries in the, 348-353 - freedom of, 201, 323-328 - in time of war, 325 - jurisdiction on, 329-339 - legal order on, 324 - navigation on, 326 - neutralisation of parts, 325 - piracy on, 339-348 - powers of men-of-war over merchantmen on the, 335, 337 - rationale for freedom of, 327 - right of pursuit on, 336 - shipwreck and distress on, 339 - subsoil beneath the sea bed, 292, 357-361 - telegraph cables in, 353-355 - verification of flag on, 337 - wireless telegraphy on the, 355-357 - _See also_ Vessel. - Operation of nature as a mode of losing territory, 312 - Oppenheim, Heinrich Bernard, 96 - Oppenheim, L., 104 - Option: - loss of nationality through, 378 - of inhabitants of ceded territory to - retain their old citizenship, 290 - Orange Free State, 304 - Oregon Boundary dispute, 295 - Ottoman law (1863), concerning proteges, 373 - - -P - - _Pacta sunt servanda_, 573 - _Pacta tertiis nee nocent nec prosunt_, 563 - _Pactum de contrahendo_, 546 - Paladini, case of Salvatore, 408 - Panama: - international position of the Republic, 182, 312 - intervention in, 191 - Panama Canal, 251, 592 - Pan-American Conferences, 72, 405, 517 - Pan-American Union, 517, 624 - Pando, 97 - _Panther_, case of the, 219 - Papal Nuncio. _See_ Nuncio. - Papal States, 157, 450 - _Par in parem non habet imperium_, 169, 430, 460 - Paris: - Convention for the protection of submarine telegraph cables, 354 - Declaration of, 12, 68, 537, 569, 588 - Peace Treaty of (1763), 64, 183, 314 - Peace Treaty of (1856), 68, 190, 247, 268, 277, 325, 514, 549, - 564, 575, 578 - Peace Treaty of (1898), 72 - Parkinson _v._ Potter, 467 - Parlement Belge, case of the, 507 - Parliaments, injurious attitude of, 216 - Participation of third States in treaties: - accession, 568 - adhesion, 569 - good offices and mediation, 568 - intervention, 568 - Parties to treaties, 543-548 - Parts of treaties, 552 - Part-Sovereign States, 441 - Passports: - dismissal of diplomatic envoys through delivery of, 455 - of courier, 475 - of diplomatic envoy, 448 - Passport of vessels, 331 - Peace Conferences at the Hague. _See_ Hague. - Peace Treaty of: - Aix-la-Chapelle (1668), 62 - Aix-la-Chapelle (1748), 64, 183 - Carlowitz, 63 - Christiania, 75 - Copenhagen, 63 - Frankfort, 290, 291, 606 - Hubertsburg, 64 - Kainardgi (1774), 441 - Kardis, 63 - Karlstad, 75, 135 - Munster, 241 - Nymeguen, 62 - Nystaedt, 63 - Oliva, 63 - Paris (1763), 64, 183, 314 - (1856), 68, 190, 247, 268, 277, 325, 514, 549, 564, 575, 578 - (1898), 72 - Prague (1866), 364 - Pyrenees, 62 - Rastadt and Baden, 63 - Roeskild, 63 - Ryswick, 63 - San Stefano, 71, 190, 549 - Seoul, 75 - Shimonoseki, 72 - Tilsit, 183, 186 - Utrecht, 63, 183, 278 - Versailles (1783), 64, 278 - Westminster (1674), 319 - Westphalia, 61, 151, 435, 587 - Pearl fishery off Ceylon and in the Persian Gulf, 348 - Peary, Admiral, 292 - Pelagic Sealing Conference, 352 - Persia, international position of, 164 - Persian Gulf, pearl fishery in the, 348 - _Persona grata_ of diplomatic envoy, 451 - Personal supremacy: - consequences of, 178 - definition of, 177 - restrictions upon, 183 - violations of, 179 - Personal union of States, 133 - Pertille, 96 - _Petit_ cabotage, 607 - Pharmacopoeial formulas, unification of, 622 - Philip II. of Spain, 316 - Philippine Islands, 72 - Phillimore, Sir Robert, 94, 99 - Phosphorus. _See_ White phosphorus. - Phylloxera conventions, 618 - Physically impossible obligations, 549 - Piedelievre, 95, 100 - Pierantoni, 96 - Pillau, alliance of, 551 - Pinkney, American commissioner, 513 - Piracy, 203, 340-348 - _Pirata non mutat dominium_, 346 - Pirates: - jurisdiction over, 345 - may be pursued into the territorial maritime belt, 346 - Plague. _See_ Sanitary Conventions. - Platen-Hallermund, case of Count, 306 - Plebiscite concerning cession of territory, 289, 364 - Pledge, 233, 288, 566 - _Pleins pouvoirs_, 447 - Podiebrad, 58 - Poelitz, 96 - Poland, 566 - partition of, 151, 310, 370 - Polish revolution (1830), 413 - Political agents: - public, 509 - secret, 510 - spies, 510 - Political crime, conception of, 414-421 - Political criminals, non-extradition of, 411-422 - Pollicitations, 546 - Polson, Archer, 94 - Pope, position of the, 70, 157-162. _See also_ Holy See. - Port Arthur leased to Russia, 233, 288 - Porto Rico, 72 - Portugal: - her claims to parts of the Open Sea, 316 - international position of, 77 - passage of troops through territory of, 280 - republic proclaimed in, 76 - Position: - of armed forces abroad, 501 - of consuls, 493 - of diplomatic envoys, 455 - of diplomatic envoys as regards third States, 469 - Positivists, the, 90, 98 - Postal Union, Universal, 516 - Powers of men-of-war over merchantmen of all nations, 335, 337 - Pradier-Fodere, 95, 100 - Prague, Peace Treaty of (1866), 364 - Precedence among envoys, 444 - Predicates of heads of States, 174 - Prescription, 308-311 - Presidents of republics: - not sovereigns, 433 - position of, 434 - Private International Law: - conception of, 4 - Hague Conventions concerning, 623, 624 - Privateer, 341, 342 - Privateering abolished by Declaration of Paris, 69, 588 - Privileges of: - consuls, 494 - couriers, 475 - diplomatic envoys, 456 - judges of the Prize Court, 522 - members of legation, 473 - members of the Tribunal of the Court of Arbitration, 521 - Proconsul, 487 - Projectiles, Convention concerning, 594 - Protection, treaties of, 604 - Protection: - envoy's function of, 454 - of citizens abroad, 371, 372, 396, 492 - Protectorate, 144 - Protectorate as precursor of occupation, 296 - Proteges, 371 - Protest as an international transaction, 538 - Protestant States, 449 - Prussia becomes a Great Power, 64 - Pseudo-guarantees, 602 - Publications, official, 620 - Public Health, international office of, 518, 621 - Public political agents, 509 - Pufendorf, 4, 89, 112 - _Punctationes_, 546 - Pursuit into the Open Sea, right of, 336 - Pyrenees, Peace of the, 62 - - -Q - - Quabbe, 604 - _Quidquid est in territorio est etiam de territorio_, 178, 231 - _Qui in territorio meo est, etiam meus subditus est_, 231 - - -R - - Rachel, 90 - Radiotelegraphy, 236 - office of, 516 - on the Open Sea, 355 - Radiotelegraphic Convention, 355 - Union, 614 - Railway transports and freights, Union concerning, 614 - Office of, 517 - Rank of States, 171 - Rastadt and Baden, Peace Treaty of, 63 - Ratification of treaties: - by whom effected, 558 - conception of, 553 - effect of, 561 - form of, 557 - not absolutely necessary, 554 - not to be partial or conditional, 559 - rationale for, 554 - refusal of, 556 - space of time for, 555 - Rationale for the freedom of the Open Sea, 327 - Real Union of States, 123, 131, 134 - _Rebus sic stantibus_, clause of, 280, 573-574 - Recall of diplomatic envoys, 477 - Reception of diplomatic envoys, 449, 451, 452 - Reception of aliens: - may be received conditionally only, 392 - no obligation to receive aliens, 390 - Recognition: - of a change in the form of government, 120 - of a change in the title of a State, 121, 173 - of a new head of a State, 425 - of a State through appointment of consul, 489 - of States, 116-121 - of insurgents as a belligerent Power, 119 - Reconduction of foreigners, 402 - Reconfirmation of treaties, 581 - _Recousse, droit de_, 347 - Red Indians, 35 - Redintegration, acquisition of nationality by, 376 - Redintegration of treaties, 581 - Regents, 432 - Registration of Aliens, Act for the, 398 - Reign of Terror, 412 - Release, loss of nationality through, 378 - Religious disabilities, 364, 368 - in Roumania, 388 - Renewal of treaties, 580 - Renunciation as an international transaction, 539 - Renunciation of a treaty, 571 - _Renvoi, droit de_, 402 - Reprisals, 396 - Republics: - American, 624 - Italian, 438 - Negro, 32 - Presidents of, 433, 434 - Rescission of treaties, 571 - _Res extra commercium_, 323 - Residents, 445 - _Responsales_, 437 - Responsibility of States, 206-225 - for acts of courts of justice, 216 - for acts of diplomatic envoys, 215 - for acts of heads of States, 214 - for acts of insurgents and rioters, 222 - for acts of members of Governments, 215 - for acts of officials and military forces, 218 - for acts of Parliaments, 216 - for acts of private individuals, 221 - _Res transit cum suo onere_, 128, 288 - Retinue of diplomatic envoys, 472-475 - of monarchs abroad, 430 - Retorsion, 391, 396, 400 - Revenue Laws, 261 - Revolt as a mode of losing territory, 312 - Rhine, the river, 241 - Rhodian laws, 56 - Ricci-Busatti, 104 - Right: - of asylum, 392, 461, 462 - of chapel, 467 - of contiguity, 295 - of legation, 440 - of protection over citizens abroad, 395, 400 - of pursuit on the sea, 336 - Right of legation: - by whom exercised, 442 - conception, 440 - not possessed by a revolutionary party recognised as - a belligerent Power, 442 - what States possess the, 441 - Rights of mankind, 35, 367, 369 - Rights of Nations, Declaration of, 35, 65 - Rioters, _reglement_ of the Institute of International Law - concerning Acts of, 224 - Ripperda, case of the Duke of, 461 - Riquelme, 97 - Rivers, 239 - abandoned beds of, 302 - international, 240 - South American, 242 - utilisation of the flow of, 243 - _See also_ Navigation. - Rivier, 97, 101, 103 - Roeskild, Peace Treaty of, 63 - Rolin, 103 - Roman Catholic Church, 8 - Roman Law, 283 - Romans, their rules for international relations, 50 - Rome, Congress at, 613 - Ross, case of Bishop, 443 - Roumania: - Convention of 1877 with Russia, 597 - independence of, 71; - restricted, 183 - treatment of Jews in, 388 - Rousseau, J. J., 113 - Rousset, 102 - Royal honours, States enjoying, 172 - Russian Ambassador, case of, 457 - Rutherford, 90 - Rymer, 102 - Ryswick, Peace Treaty of, 63 - - -S - - Sa, case of Don Pantaleon, 475 - Saalfeld, 96 - Sackville, case of Lord, 455 - St. George's Channel, 266 - St. Lawrence, navigation on the river, 243 - St. Petersburg: - Convention of, 614 - Declaration of, 70, 537, 590 - Sale of State territory, 287 - Salvage, 339 - Samos, international position of, 144 - San Domingo, 32 - San Marino, international position of, 146 - San Stefano, Peace Treaty of, 71, 549, 568 - Sandona, 96 - Sanitary Conventions, 620 - Sanitary laws, 261 - Sanitation, International Council of, at Bucharest, 515 - Santa Lucia, case of, 313 - Sarawak, 282 - Sarpi, Paolo, 319 - Savarkar, case of, 410 - Scheldt, the river, 241 - Schmalz, 95 - Schmauss, 102 - Schnaebele, case of, 511 - Schools of International Jurists, 82, 89 - Scientific Research, Unions in the interest of, 625, 626 - Scott, James Brown, 104 - Scott, Sir William, 98. _See also_ Lord Stowell. - Sea-brief, 331 - Sea-letter, 331 - Seal fisheries in the Behring Sea, 351, 623 - Sealing Conference, pelagic, 352, 623 - Secret political agents, 510 - Secret protocol, 555 - Secretaries of Legation, 472 - Secretary for Foreign Affairs, 435 - Seismologic Association, International, 625 - Selden, John, 89, 318 - Self-jurisdiction: - of diplomatic envoys, 468 - of monarchs abroad, 429, 430 - Self-preservation, 184-187 - Semi-sovereign. _See_ Half- _and_ Part-Sovereign. - Seneca, 230, 283 - Senigallia, 104 - Seoul, Peace of, 75 - Servia, independence of, 71 - restricted, 183 - Servitudes, 273-281 - _Servitus in faciendo consistere nequit_, 279 - _Servitutes juris gentium naturales_, 274 - _Servitutes juris gentium voluntariae_, 274 - Shenandoah, case of the, 343 - Shimonoseki, Peace Treaty of, 72, 568 - Ship. _See_ Vessel. - Ship-papers, 331, 491 - Shipwreck on the Open Sea, 339 - Siam, international position of, 164 - Slave-trade, 66, 348, 368, 588, 591, 622 - Smith, F. E., 94 - Solent, the, 266 - Solferino, battle of, 544 - Sorel, Albert, 95 - Soudan, international position of, 232 - Soule, case of, 470 - Sound dues, 267 - Sources of International Law, 20 - South African Republic, 74, 142, 181, 304, 441 - her alliance with the Orange Free State, 597 - Sovereignty: - conception of, 110, 112, 177 - divisibility of sovereignty contested, 110 - history of meaning of sovereignty, 111-115 - in contradistinction to suzerainty, 141 - Sovereignty of monarchs, 428 - Spheres of influence, 297 - Spies, 510 - Spirit-trade in certain parts of Africa, 591 - Spitzbergen, 232 - _Sponsio_, 545 - Springer, case of, 461 - State, conception of, 108 - State property. _See_ State territory. - States: - American, 163 - a product of law, 14 - changes in the conditions of, 121-125 - confederated, 135 - dignity of, 174-177, 456 - equality of, 20, 168 - European, 162 - extinction of, 124 - Federal, 130, 136 - full- and not-full Sovereign, 109 - heads of. _See_ Heads of States. - independence of, 177 - intercourse of, 166, 199-201 - jurisdiction of, 201-205 - neutralised, 147-154 - new-born, 281 - non-Christian, 154, 497 - order of precedence of, 172 - part-Sovereign, 141 - personal supremacy of, 177 - personal union of, 133 - possessing royal honours, 172 - rank of, 171 - real union of, 123, 131, 134 - recognition of, 116-121 - responsibility of, 206-225 - self-preservation of, 184-187 - suzerain, 140, 190 - territorial supremacy of, 177 - titles of, 173 - under protectorate, 144 - vassal, 140 - State servitudes, 273-281 - State territory: - cession of, 285 - definition of, 229 - different kinds of, 230 - different parts of, 235 - dismembered, 230 - importance of, 231 - inalienability of parts of, 238 - integrate, 230 - loss of, 311-314 - modes of acquiring, 281-284 - servitudes on, 273-281 - States under protectorate cannot cede territory without - consent of the superior State, 286 - Status quo: - in the Baltic, 604 - in the Mediterranean, 603 - in the North Sea, 603, 604 - treaties guaranteeing maintenance of, 602-604 - Stettin, Bay of, 263 - Stockton, Capt. C. H., 38 - Stoerk, 103 - Story, 137 - Stowell, Lord, 98, 302 - Straits, 265 - of Kara, 266 - of Kertch, 267 - of Magellan, 267 - of Yugor, 266 - Strupp, 102 - Stuart Pretender, the, 278 - Suarez, 84 - Subject of a State, his position when a diplomatic envoy - of a foreign State, 450 - Subjugation: - conception of, 302 - consequences of, 305 - in contradistinction to occupation, 303 - justification of, 304 - of the whole or of a part of enemy territory, 304 - veto by third Powers, 307 - Subjugation, acquisition of nationality through, 306, 377 - Subsoil, territorial, 235 - beneath the sea bed, 357 - Substitution of one treaty for another, 571 - Substitution, loss of nationality through, 378 - Succession of States, 125-132 - Suez Canal, 249, 514, 591 - Sugar Convention, 617 - Office of, 517 - _Sujets mixtes_, 386 - Sully, 58 - Sully, case of, 468 - Sun Yat Sen, case of, 464 - Suzerainty, conception of, 141 - Sweden, her sovereignty over the Baltic, 316 - Sweden-Norway, Real Union dissolved, 135 - Swiss Confederation reorganised, 61 - Switzerland, neutralisation of, 66, 151, 588 - member-States conclude treaties, 544 - without a maritime flag, 327 - - -T - - _Tabula Amalfitana_, 56 - Taylor, Hannis, 95, 101 - Telegraph cables: - Convention for the protection of, 354 - in the Open Sea, 353 - Telegraph Union, Universal, 516 - Telegraphy, wireless, on the Open Sea, 355 - _Terrae potestas finitur ubi finitur armorum vis_, 257 - Territorial atmosphere, 236 - Territorial supremacy: - consequences of, 178 - definition of, 177 - restrictions upon, 182, 273 - violations of, 179 - Territorial waters, 235 - contrasted with Open Sea, 321 - Territorial Waters Jurisdiction Act, 29, 257, 260, 266 - _Territorium clausum_, 230 - _Territorium dominans_, 276 - _Territorium serviens_, 276 - Territory. _See_ State Territory. - Textor, 90 - Tezkereh, 389 - Thalweg, the, 271 - Tibet, international position of, 164 - Titles of States, 173 - Thomasius, 90 - Toll, maritime, 259 - Tourkmantschai, Treaty of, 246 - Tourville, case of, 407 - Trading Consular Officers, 485 - Tradition of ceded territory, 288 - Transactions: - declarations, 536 - different kinds of, 536 - notifications, 537 - protests, 538 - renunciation, 539 - Traffic on the Open Sea, 333 - Transports, Central Office of International, 517 - Transvaal. _See_ South African Republic. - Trawling in Prohibited Areas Prevention Act, 265 - Treaties: - accession and adhesion to, 568, 569 - binding force of, 541, 545, 546 - cancellation of, 578 - commercial and consular, 488, 605-612 - conception of, 540 - constitutional restrictions concerning the treaty-making - power, 545 - different kinds of, 540 - effect of, 561 - expiration and dissolution of, 570-576 - extradition, 412-422 - form of, 550 - fulfilment of, 570 - interpretation of, 582 - law-making, 23, 541, 587 - lists of, 94, 102 - means of securing performance of, 565 - objects of, 548 - of alliance, 595 - of cession, 290 - of extradition, 404-406 - of guarantee, 599 - of protection, 604 - of subsidy, 598 - _pactum de contrahendo_, 546 - participation of third States in, 567 - parties to, 543, 546-548 - parts of, 552 - pseudo-guarantees, 602 - _punctationes_, 546 - ratification of, 553-561 - reconfirmation of, 581 - redintegration of, 581 - regarding spheres of influence, 297 - renewal of, 580 - sources of International Law, 23 - voidance of, 576 - who can exercise the power of making, 543 - Triepel, 102 - Troppau, Congress of, 67 - Tucker, 95 - Tunis, international position of, 147, 164 - Tunnel, proposed Channel, 359 - Turkey, reception into the Family of Nations through Peace - Treaty of Paris (1856), 32, 69 - Twiss, Sir Travers, 94, 99, 249 - - -U - - Ullmann, 96, 101 - Ulpianus, 315 - Unions concerning: - Agriculture, 617 - birds useful to agriculture, 618 - Cholera and plague, 620 - Coinage, 619 - Copyright, 615 - Customs tariffs publication, 616 - Geodetic work, 625 - Humanity, 622 - Hydrographic work, 626 - Industrial property, 616 - Literature and Art, 615 - Metric system, the, 619 - Motor Vehicles, 615 - Night work of women, 618 - Official publications, 620 - Pelagic Sealing, 623 - Pharmacopoeial formulas, 622, 623 - Phylloxera epidemics, 618 - Post, 613 - Private International Law, 623 - Public health, 621 - Radiotelegraphy, 614 - Railway transport, 614 - Sanitation, 620 - Science, 625 - Seismology, 625 - Submarine cables, 614 - Sugar, 617 - Telegraphs, 614 - Transport, 614 - White phosphorus, the use of, 618 - White slave traffic, 622, 623 - Wild animals in Africa, 623 - Unions, object of, 612 - United States of America: - become a Great Power, 70, 171, 312 - become a member of Family of Nations, 64 - intervene in the revolt of Cuba, 72 - member-States cannot conclude treaties, 544 - naval war code of, 38 - Universal Postal Union, 613 - Universal Telegraph Union, 614 - Usage, international, in contradistinction to international - custom, 22 - Usurper, 427 - Utrecht, Peace of, 63, 278, 583 - - -V - - Vaderland, case of the, 357 - Vassal States, 140 - cannot be parties to offensive alliances, 142, 597 - cannot cede territory without consent of suzerain, 286 - competent to appoint consuls, 488 - competent to make treaties, 544 - competent to send public political agents, 509 - of Great Britain, Indian, 142 - Vatican, the, 158, 449 - Vattel, 93, 320, 405 - Venezuela, blockade of (1902), 74 - Venice: - ceded by Austria to France, 287 - her sovereignty over the Adriatic Sea, 316 - Verdun, Treaty of, 54 - Verification of flag, 335 - Verona, Congress of, 67 - Versailles, Peace of, 64, 567 - Vessels: - arrest of, 338 - collision of, 333 - distress of, 339, 356 - names of, 332, 350 - papers of, 331 - search of, 338 - territorial quality of, when on the Open Sea, 332 - visit of, 337 - _See also_ Men-of-War. - Veto concerning a cession of territory, 289 - concerning subjugation, 307 - Vexaincourt, case of, 219 - Vice-consul, 486 - Victor Emanuel, King of Italy, 426 - Victoria, 84 - Vienna Congress, 65, 75 - (1815), 241, 280, 444, 587, 588 - Vienna, Treaty of (1878), 364 - Villafranca, Preliminary Peace Treaty of, 544 - Virginius, case of the, 187 - Visit of vessels, 337 - Vital change of circumstances, 573 - Voidance of treaties: - through extinction of object concerned, 577 - through extinction of one of the parties, 576 - through impossibility of execution, 577 - through realisation of purpose, 577 - _Voelkerrechts-Indigenat_, 367 - - -W - - Waddington, case of, 475 - Walker, Thomas Alfred, 94, 100 - Wallachia, 441 - War, Convention concerning Laws of, 593 - Convention concerning rights and duties of neutrals in, 593 - Laws of (U.S.A.), 36 - Laws of (U.S.A.) at sea, 38 - Warsaw, non-admittance of consuls to, 488 - Washburne, case of, 471 - Washington: - Boundary Treaty of (1908), 272, 513 - Congress of (1890), 304 - Maritime Conference of (1889), 333 - Pelagic Fishing Conference of, 352 - Treaties (1854) and (1871), concerning navigation on the river - St. Lawrence, 243 - Treaty (1857) concerning the Sound Dues, 268 - Treaty (1901) concerning the Panama Canal, 251 - Treaty (1904), 182 - Waters, territorial. _See_ Territorial waters. - Webster, Mr., U.S.A., Secretary of Foreign Affairs, 502 - Weights and Measures, International Union of, 619 - Office of the Union of, 516 - Wei-Hai-Wei leased to Great Britain, 233, 288 - Welwood, William, 318 - Wenck, 102 - Westlake, 94, 101 - Westminster, Treaty of (1674), 319 - Westphalian Peace, 61, 151, 435, 587 - Wharton, 95, 100 - Wheaton, 95, 98 - White Phosphorus, Convention for the prohibition of the use of, - 618 - White Phosphorus Matches Prohibition Act, 618 - White Sea fisheries, 348 - White slave traffic, 623 - Wild animals, &c., in Africa, preservation of, 623 - Wildman, Richard, 94 - William of Holland, case of King, 432 - Wilson, 95, 101 - Wireless telegraphy, 236 - on the Open Sea, 355 - Wisby, the maritime laws of, 56 - Wismar, pledged by Sweden to Mecklenburg, 233, 288 - Wolff, Christian, 92 - Women. _See_ Night-work of women. - Woolsey, 95, 103 - Wrech, case of Baron de, 465 - - -Y - - Young Turks movement, 76 - Yugor Straits, 266 - - -Z - - Zanzibar, international position of, 147 - Zone for revenue and sanitary laws extended beyond the - maritime belt, 261 - Zouche, 88 - Zuider Zee, 263 - - - - -END OF VOL. 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