diff options
Diffstat (limited to '41046.txt')
| -rw-r--r-- | 41046.txt | 27657 |
1 files changed, 0 insertions, 27657 deletions
diff --git a/41046.txt b/41046.txt deleted file mode 100644 index 846c48e..0000000 --- a/41046.txt +++ /dev/null @@ -1,27657 +0,0 @@ -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: 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. I. - - - - -Printed by BALLANTYNE, HANSON & Co. - -Edinburgh & London - - - - - -End of the Project Gutenberg EBook of International Law. A Treatise. Volume -I (of 2), by Lassa Francis Oppenheim - -*** END OF THIS PROJECT GUTENBERG EBOOK INTERNATIONAL LAW, A TREATISE, VOL I *** - -***** This file should be named 41046.txt or 41046.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/1/0/4/41046/ - -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.) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. Special rules, -set forth in the General Terms of Use part of this license, apply to -copying and distributing Project Gutenberg-tm electronic works to -protect the PROJECT GUTENBERG-tm concept and trademark. Project -Gutenberg is a registered trademark, and may not be used if you -charge for the eBooks, unless you receive specific permission. If you -do not charge anything for copies of this eBook, complying with the -rules is very easy. You may use this eBook for nearly any purpose -such as creation of derivative works, reports, performances and -research. They may be modified and printed and given away--you may do -practically ANYTHING with public domain eBooks. Redistribution is -subject to the trademark license, especially commercial -redistribution. - - - -*** START: FULL LICENSE *** - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full Project -Gutenberg-tm License available with this file or online at - www.gutenberg.org/license. - - -Section 1. General Terms of Use and Redistributing Project Gutenberg-tm -electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or destroy -all copies of Project Gutenberg-tm electronic works in your possession. -If you paid a fee for obtaining a copy of or access to a Project -Gutenberg-tm electronic work and you do not agree to be bound by the -terms of this agreement, you may obtain a refund from the person or -entity to whom you paid the fee as set forth in paragraph 1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this agreement -and help preserve free future access to Project Gutenberg-tm electronic -works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the Foundation" -or PGLAF), owns a compilation copyright in the collection of Project -Gutenberg-tm electronic works. Nearly all the individual works in the -collection are in the public domain in the United States. If an -individual work is in the public domain in the United States and you are -located in the United States, we do not claim a right to prevent you from -copying, distributing, performing, displaying or creating derivative -works based on the work as long as all references to Project Gutenberg -are removed. Of course, we hope that you will support the Project -Gutenberg-tm mission of promoting free access to electronic works by -freely sharing Project Gutenberg-tm works in compliance with the terms of -this agreement for keeping the Project Gutenberg-tm name associated with -the work. You can easily comply with the terms of this agreement by -keeping this work in the same format with its attached full Project -Gutenberg-tm License when you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are in -a constant state of change. If you are outside the United States, check -the laws of your country in addition to the terms of this agreement -before downloading, copying, displaying, performing, distributing or -creating derivative works based on this work or any other Project -Gutenberg-tm work. The Foundation makes no representations concerning -the copyright status of any work in any country outside the United -States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other immediate -access to, the full Project Gutenberg-tm License must appear prominently -whenever any copy of a Project Gutenberg-tm work (any work on which the -phrase "Project Gutenberg" appears, or with which the phrase "Project -Gutenberg" is associated) is accessed, displayed, performed, viewed, -copied or distributed: - -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 - -1.E.2. If an individual Project Gutenberg-tm electronic work is derived -from the public domain (does not contain a notice indicating that it is -posted with permission of the copyright holder), the work can be copied -and distributed to anyone in the United States without paying any fees -or charges. If you are redistributing or providing access to a work -with the phrase "Project Gutenberg" associated with or appearing on the -work, you must comply either with the requirements of paragraphs 1.E.1 -through 1.E.7 or obtain permission for the use of the work and the -Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or -1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any additional -terms imposed by the copyright holder. Additional terms will be linked -to the Project Gutenberg-tm License for all works posted with the -permission of the copyright holder found at the beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including any -word processing or hypertext form. However, if you provide access to or -distribute copies of a Project Gutenberg-tm work in a format other than -"Plain Vanilla ASCII" or other format used in the official version -posted on the official Project Gutenberg-tm web site (www.gutenberg.org), -you must, at no additional cost, fee or expense to the user, provide a -copy, a means of exporting a copy, or a means of obtaining a copy upon -request, of the work in its original "Plain Vanilla ASCII" or other -form. Any alternate format must include the full Project Gutenberg-tm -License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works provided -that - -- You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is - owed to the owner of the Project Gutenberg-tm trademark, but he - has agreed to donate royalties under this paragraph to the - Project Gutenberg Literary Archive Foundation. Royalty payments - must be paid within 60 days following each date on which you - prepare (or are legally required to prepare) your periodic tax - returns. Royalty payments should be clearly marked as such and - sent to the Project Gutenberg Literary Archive Foundation at the - address specified in Section 4, "Information about donations to - the Project Gutenberg Literary Archive Foundation." - -- You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or - destroy all copies of the works possessed in a physical medium - and discontinue all use of and all access to other copies of - Project Gutenberg-tm works. - -- You provide, in accordance with paragraph 1.F.3, a full refund of any - money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days - of receipt of the work. - -- You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project Gutenberg-tm -electronic work or group of works on different terms than are set -forth in this agreement, you must obtain permission in writing from -both the Project Gutenberg Literary Archive Foundation and Michael -Hart, the owner of the Project Gutenberg-tm trademark. Contact the -Foundation as set forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -public domain works in creating the Project Gutenberg-tm -collection. Despite these efforts, Project Gutenberg-tm electronic -works, and the medium on which they may be stored, may contain -"Defects," such as, but not limited to, incomplete, inaccurate or -corrupt data, transcription errors, a copyright or other intellectual -property infringement, a defective or damaged disk or other medium, a -computer virus, or computer codes that damage or cannot be read by -your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium with -your written explanation. The person or entity that provided you with -the defective work may elect to provide a replacement copy in lieu of a -refund. If you received the work electronically, the person or entity -providing it to you may choose to give you a second opportunity to -receive the work electronically in lieu of a refund. If the second copy -is also defective, you may demand a refund in writing without further -opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO OTHER -WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO -WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of damages. -If any disclaimer or limitation set forth in this agreement violates the -law of the state applicable to this agreement, the agreement shall be -interpreted to make the maximum disclaimer or limitation permitted by -the applicable state law. The invalidity or unenforceability of any -provision of this agreement shall not void the remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in accordance -with this agreement, and any volunteers associated with the production, -promotion and distribution of Project Gutenberg-tm electronic works, -harmless from all liability, costs and expenses, including legal fees, -that arise directly or indirectly from any of the following which you do -or cause to occur: (a) distribution of this or any Project Gutenberg-tm -work, (b) alteration, modification, or additions or deletions to any -Project Gutenberg-tm work, and (c) any Defect you cause. - - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of computers -including obsolete, old, middle-aged and new computers. It exists -because of the efforts of hundreds of volunteers and donations from -people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future generations. -To learn more about the Project Gutenberg Literary Archive Foundation -and how your efforts and donations can help, see Sections 3 and 4 -and the Foundation information page at www.gutenberg.org - - -Section 3. Information about the Project Gutenberg Literary Archive -Foundation - -The Project Gutenberg Literary Archive Foundation is a non profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg -Literary Archive Foundation are tax deductible to the full extent -permitted by U.S. federal laws and your state's laws. - -The Foundation's principal office is located at 4557 Melan Dr. S. -Fairbanks, AK, 99712., but its volunteers and employees are scattered -throughout numerous locations. Its business office is located at 809 -North 1500 West, Salt Lake City, UT 84116, (801) 596-1887. Email -contact links and up to date contact information can be found at the -Foundation's web site and official page at www.gutenberg.org/contact - -For additional contact information: - Dr. Gregory B. Newby - Chief Executive and Director - gbnewby@pglaf.org - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without wide -spread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To -SEND DONATIONS or determine the status of compliance for any -particular state visit www.gutenberg.org/donate - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. -To donate, please visit: www.gutenberg.org/donate - - -Section 5. General Information About Project Gutenberg-tm electronic -works. - -Professor Michael S. Hart was the originator of the Project Gutenberg-tm -concept of a library of electronic works that could be freely shared -with anyone. For forty years, he produced and distributed Project -Gutenberg-tm eBooks with only a loose network of volunteer support. - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as Public Domain in the U.S. -unless a copyright notice is included. Thus, we do not necessarily -keep eBooks in compliance with any particular paper edition. - -Most people start at our Web site which has the main PG search facility: - - www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. |