L Oppenheim, International Law A Treatise Vol I
L Oppenheim, International Law A Treatise Vol I
L Oppenheim, International Law A Treatise Vol I
Author: L. Oppenheim
Language: English
INTERNATIONAL LAW
A TREATISE
VOL. I.
PEACE
SECOND EDITION
BY
TO
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: § 178a (concerning the Utilisation of the Flow of Rivers);
§§ 287a and 287b (concerning Wireless Telegraphy on the Open Sea); §§
287c and 287d (concerning Mines and Tunnels in the Subsoil of the Sea
bed); § 446a (concerning the Casa Blanca incident); §§ 476a and 476b
(concerning the International Prize Court and the suggested International
Court of Justice); §§ 568a and 568b (concerning the Conventions of the
Second Hague Peace Conference, and the Declaration of London); § 576a
(concerning Pseudo-Guarantees). Only towards the end of the volume has
this mode of dealing with the new topics been departed from. As the
chapter treating of Unions, the last of the volume, had to be entirely
rearranged and rewritten, and a new chapter on Commercial Treaties
inserted, the old arrangement comes to an end with § 577; and §§ 578 to
596 of this new edition present an arrangement of topics which differs from
that of the former edition.
I venture to hope that this edition will be received as favourably as was
its predecessor. My aim, as always, has been to put the matter as clearly as
possible before the reader, and nowhere have I forgotten that I am writing
as a teacher for students. It is a matter of great satisfaction to me that the
prophetic warnings of some otherwise very sympathetic reviewers that a
comprehensive treatise on International Law in two volumes would never
be read by young students have proved mistaken. The numerous letters
which I have received from students, not only in this country but also in
America, Japan, France, and Italy, show that I was not wrong when, in the
preface to the former edition, I described the work as an elementary book
for those beginning to study the subject. Many years of teaching have
confirmed me in the conviction that those who approach the study of
International Law should at the outset be brought face to face with its
complicated problems, and should at once acquire a thorough understanding
of the wide scope of the subject. If writers and lecturers who aim at this
goal will but make efforts to use the clearest language and an elementary
method of explanation, they will attain success in spite of the difficulty of
the problems and the wide range of topics to be considered.
I owe thanks to many reviewers and readers who have drawn my
attention to mistakes and misprints in the first edition, and I am especially
indebted to Mr. C. J. B. Hurst, C.B., Assistant Legal Adviser to the Foreign
Office, to Mr. E. S. Roscoe, Admiralty Registrar of the High Court, and to
Messrs. F. Ritchie and G. E. P. Hertslet of the Foreign Office who gave me
valuable information on certain points while I was preparing the manuscript
for this edition. And I must likewise most gratefully mention Miss B. M.
Rutter and Mr. C. F. Pond who have assisted me in reading the proofs and
have prepared the table of cases and the exhaustive alphabetical index.
L. OPPENHEIM.
WHEWELL HOUSE,
CAMBRIDGE,
November 1, 1911.
ABBREVIATIONS
OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT
The books referred to in the bibliography and notes are, as a rule, quoted
with their full titles and the date of their publication. But certain books and
periodicals which are very often referred to throughout this work are quoted
in an abbreviated form, as follows:—
A.J. = The American Journal of International Law.
Annuaire = Annuaire de l'Institut de Droit International.
Bluntschli = Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt,
3rd ed. (1878).
Bonfils = Bonfils, Manuel De Droit International Public, 5th ed. by Fauchille (1908).
Bulmerincq = Bulmerincq, Das Völkerrecht (1887).
Calvo = Calvo, Le Droit International etc., 5th ed. 6 vols. (1896).
Despagnet = Despagnet, Cours De Droit International Public, 4th ed. by de Boeck (1910).
Field = Field, Outlines of an International Code (1872).
Fiore = Fiore, Nouveau Droit International Public, deuxième édition, traduite de l'Italien et annotée
par Antoine, 3 vols. (1885).
Fiore, Code = Fiore, Le Droit International Codifié, nouvelle édition, traduite de l'Italien par Antoine
(1911).
Gareis = Gareis, Institutionen des Völkerrechts, 2nd ed. (1910).
Grotius = Grotius, De Jure Belli ac Pacis (1625).
Hall = Hall, A Treatise on International Law, 4th ed. (1895).
Halleck = Halleck, International Law, 3rd English ed. by Sir Sherston Baker, 2 vols. (1893).
Hartmann = Hartmann, Institutionen des praktischen Völkerrechts in Friedenszeiten (1874).
Heffter = Heffter, Das Europäische Völkerrecht der Gegenwart, 8th ed. by Geffcken (1888).
Heilborn, System = Heilborn, Das System des Völkerrechts entwickelt aus den völkerrechtlichen
Begriffen (1896).
Holland, Studies = Holland, Studies in International Law (1898).
Holland, Jurisprudence = Holland, The Elements of Jurisprudence, 6th ed. (1893).
Holtzendorff = Holtzendorff, Handbuch des Völkerrechts, 4 vols. (1885-1889).
Klüber = Klüber, Europäisches Völkerrecht, 2nd ed. by Morstadt (1851).
Lawrence = Lawrence, The Principles of International Law, 4th ed. (1910).
Lawrence, Essays = Lawrence, Essays on some Disputed Questions of Modern International Law
(1884).
Liszt = Liszt, Das Völkerrecht, 6th ed. (1910).
Lorimer = Lorimer, The Institutes of International Law, 2 vols. (1883-1884).
Maine = Maine, International Law, 2nd ed. (1894).
Manning = Manning, Commentaries on the Law of Nations, new ed. by Sheldon Amos (1875).
Martens = Martens, Völkerrecht, German translation of the Russian original in 2 vols. (1883).
Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens Moderne De L'Europe, nouvelle éd. par
Vergé, 2 vols. (1858)
Martens, R. }
Martens, N.R. }
Martens, N.S. }
Martens, N.R.G. }
Martens, N.R.G. 2nd Ser. }
Martens. N.R.G. 3rd Ser. } These are the abbreviated quotations of the different parts of Martens,
Recueil de Traités (see p. 102 of this volume), which are in common use.
Martens, Causes Célèbres = Martens, Causes Célèbres Du Droit Des Gens, 5 vols., 2nd ed. (1858-
1861).
Mérignhac = Mérignhac, Traité De Droit Public International, vol. i. (1905), vol. ii. (1907).
Moore = Moore, A Digest of International Law, 8 vols., Washington (1906).
Nys = Nys, Le Droit International, 3 vols. (1904-1906).
Perels = Perels, Das internationale öffentliche Seerecht der Gegenwart, 2nd ed. (1903).
Phillimore = Phillimore, Commentaries upon International Law, 4 vols. 3rd ed. (1879-1888).
Piedelièvre = Piedelièvre, Précis De Droit International Public, 2 vols. (1894-1895).
Pradier-Fodéré = Pradier-Fodéré, Traité De Droit International Public, 8 vols. (1885-1906).
Pufendorf = Pufendorf, De Jure Naturae et Gentium (1672).
Rivier = Rivier, Principes Du Droit Des Gens, 2 vols. (1896).
R.I. = Revue De Droit International Et De Législation Comparée.
R.G. = Revue Général De Droit International Public.
Taylor = Taylor, A Treatise on International Public Law (1901).
Testa = Testa, Le Droit Public International Maritime, traduction du Portugais par Boutiron (1886).
Twiss = Twiss, The Law of Nations, 2 vols., 2nd ed. (1884, 1875).
Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908).
Vattel = Vattel, Le Droit Des Gens, 4 books in 2 vols., nouvelle éd. (Neuchâtel, 1773).
Walker = Walker, A Manual of Public International Law (1895).
Walker, History = Walker, A History of the Law of Nations, vol. i. (1899).
Walker, Science = Walker, The Science of International Law (1893).
Westlake = Westlake, International Law, 2 vols. (1904-1907).
Westlake, Chapters = Westlake, Chapters on the Principles of International Law (1894).
Wharton = Wharton, A Digest of the International Law of the United States, 3 vols. (1886).
Wheaton = Wheaton, Elements of International Law, 8th American ed. by Dana (1866).
Z.V. = Zeitschrift für Völkerrecht und Bundesstaatsrecht.
CASES CITED
Aegi, § 437, p. 496
Ambrose Light, the, § 273 note 2; § 276, p. 345 note 1
Amelia Island, § 132, p. 186
Anderson, John, § 147, p. 205 note 1
Anna, the, § 234, p. 301
Aubespine, L', § 387, p. 459
INTRODUCTION
CHAPTER I
FOUNDATION OF THE LAW OF NATIONS
CHAPTER II
DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS
PART I
THE SUBJECTS OF THE LAW OF NATIONS
CHAPTER I
INTERNATIONAL PERSONS
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
III. Dignity
120. Dignity a Quality 174
121. Consequences of the Dignity of States 175
122. Maritime Ceremonials 176
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
PART II
THE OBJECTS OF THE LAW OF NATIONS
CHAPTER I
STATE TERRITORY
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
178a. Utilisation of the Flow of Rivers 243
V. Canals
182. Canals State Property of Riparian States 248
183. The Suez Canal 249
184. The Panama Canal 251
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
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
CHAPTER II
THE OPEN SEA
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
CHAPTER III
INDIVIDUALS
II. Nationality
293. Conception of Nationality 369
294. Function of Nationality 370
295. So-called Protégés and de facto Subjects 371
296. Nationality and Emigration 373
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
PART III
ORGANS OF THE STATES FOR THEIR INTERNATIONAL
RELATIONS
CHAPTER I
HEADS OF STATES AND FOREIGN OFFICES
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
CHAPTER II
DIPLOMATIC ENVOYS
CHAPTER IV
MISCELLANEOUS AGENCIES
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
467a. The Pan-American Union 517
468. Maritime Office at Zanzibar and Bureau Spécial at Brussels 517
469. International Office of Customs Tariffs 517
470. Central Office of International Transports 517
471. Permanent Office of the Sugar Convention 517
471a. Agricultural Institute 518
471b. International Health Office 518
VII. The International Prize Court and the proposed International Court
of Justice
476a. The International Prize Court 522
476b. 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
CHAPTER II
TREATIES
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
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
CHAPTER III
IMPORTANT GROUPS OF TREATIES
INDEX 627
INTRODUCTION
FOUNDATION AND DEVELOPMENT OF THE
LAW OF NATIONS
CHAPTER I
FOUNDATION OF THE LAW OF NATIONS
I
THE LAW OF NATIONS AS LAW
Hall, pp. 14-16—Maine, pp. 50-53—Lawrence, §§ 1-3, and Essays, pp. 1-36—Phillimore, I.
§§ 1-12—Twiss, I. §§ 104-5—Taylor, § 2—Moore, I. §§ 1-2—Westlake, I. pp. 1-13—
Walker, History, I. §§ 1-8—Halleck, I. pp. 46-55—Ullmann, §§ 2-4—Heffter, §§ 1-5—
Holtzendorff in Holtzendorff, I. pp. 19-26—Nys, I. pp. 133-43—Rivier, I. § 1—Bonfils,
Nos. 26-31—Pradier-Fodéré, I. Nos. 1-24—Mérignhac, I. pp. 5-28—Martens, I. §§ 1-5—
Fiore, I. Nos. 186-208, and Code, Nos. 1-26—Higgins, "The Binding Force of International
Law" (1910)—Pollock in The Law Quarterly Review, XVIII. (1902), pp. 418-428—Scott in
A.J. I. (1907), pp. 831-865—Willoughby and Root in A.J. II. (1908), pp. 357-365 and 451-
457.
II
BASIS OF THE LAW OF NATIONS
III
SOURCES OF THE LAW OF NATIONS
IV
RELATIONS BETWEEN INTERNATIONAL AND MUNICIPAL LAW
Presumption of the Existence of certain Municipal Rules in Conformity with Rights granted by the
Law of Nations.
§ 25. There is no doubt that a State need not make use of all the rights it
has by the Law of Nations, and that, consequently, every State can by its
laws expressly renounce the whole or partial use of such rights, provided
always it is ready to fulfil such duties, if any, as are connected with these
rights. However, when no such renunciation has taken place, Municipal
Courts ought, in case the interests of justice demand it, to presume that their
Sovereign has tacitly consented to make use of such rights. If, for instance,
the Municipal Law of a State does not by a statute extend its jurisdiction
over its maritime belt, its courts ought to presume that, since by the Law of
Nations the jurisdiction of a State does extend over its maritime belt, their
Sovereign has tacitly consented to that wider range of its jurisdiction.
A remarkable case illustrating this happened in this country in 1876. The
German vessel Franconia, while passing through the British maritime belt
within three miles of Dover, negligently ran into the British vessel
Strathclyde, and sank her. As a passenger on board the latter was thereby
drowned, the commander of the Franconia, the German Keyn, was indicted
at the Central Criminal Court and found guilty of manslaughter. The Court
for Crown Cases Reserved, however, to which the Central Criminal Court
referred the question of jurisdiction, held by a majority of one judge that,
according to the law of the land, English courts had no jurisdiction over
crimes committed in the English maritime belt. Keyn was therefore not
punished.[25] To provide for future cases of like kind, Parliament passed, in
1878, the "Territorial Waters Jurisdiction Act."[26]
[25] L.R. 2 Ex. Div. 63. See Phillimore, I. § 198 B; Maine, pp. 39-45. See also below, § 189,
where the controversy is discussed whether a littoral State has jurisdiction over foreign vessels
that merely pass through its maritime belt.
[26] 41 and 42 Vict. c. 73.
V
DOMINION OF THE LAW OF NATIONS
VI
CODIFICATION OF THE LAW OF NATIONS
CHAPTER II
DEVELOPMENT AND SCIENCE OF THE LAW OF
NATIONS
I
DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS
Lawrence, §§ 20-29—Manning, pp. 8-20—Halleck, I. pp. 1-11—Walker, History, I. pp. 30-
137—Taylor, §§ 6-29—Ullmann, §§ 12-14—Holtzendorff in Holtzendorff, I, pp. 159-386
—Nys, I. pp. 1-18—Martens, I. §§ 8-20—Fiore, I. Nos. 3-31—Calvo, I. pp. 1-32—Bonfils,
Nos. 71-86—Despagnet, Nos. 1-19—Mérignhac, I. pp. 38-43—Laurent, "Histoire du Droit
des Gens," &c., 14 vols. (2nd ed. 1861-1868)—Ward, "Enquiry into the Foundation and
History of the Law of Nations," 2 vols. (1795)—Osenbrüggen, "De Jure Belli ac Pacis
Romanorum" (1876)—Müller-Jochmus, "Geschichte des Völkerrechts im Alterthum"
(1848)—Hosack, "Rise and Growth of the Law of Nations" (1883), pp. 1-226—Nys, "Le
Droit de la Guerre et les Précurseurs de Grotius" (1882) and "Les Origines du Droit
International" (1894)—Hill, "History of Diplomacy in the International Development of
Europe," vol. I. (1905) and vol. II. (1906)—Cybichowski, "Das antike Völkerrecht" (1907)
—Phillipson, "The International Law and Custom of Ancient Greece and Rome," 2 vols.
(1910)—Strupp, "Urkunden zur Geschichte des Völkerrechts," 2 vols. (1911).
II
DEVELOPMENT OF THE LAW OF NATIONS AFTER GROTIUS
Lawrence, §§ 29-53, and Essays, pp. 147-190—Halleck, I. pp. 12-45—Walker, History, I. pp.
138-202—Taylor, §§ 65-95—Nys, I. pp. 19-46—Martens, I. §§ 21-33—Fiore, I. Nos. 32-52
—Calvo, I. pp. 32-101—Bonfils, Nos. 87-146—Despagnet, Nos. 20-27—Mérignhac, I. pp.
43-78—Ullmann, §§ 15-17—Laurent, "Histoire du Droit des Gens, &c.," 14 vols. (2nd ed.
1861-1868)—Wheaton, "Histoire des Progrès du Droit des Gens en Europe" (1841)—
Bulmerincq, "Die Systematik des Völkerrechts" (1858)—Pierantoni, "Storia del diritto
internazionale nel secolo XIX." (1876)—Hosack, "Rise and Growth of the Law of Nations"
(1883), pp. 227-320—Brie, "Die Fortschritte des Völkerrechts seit dem Wiener Congress"
(1890)—Gareis, "Die Fortschritte des internationalen Rechts im letzten Menschenalter"
(1905)—Dupuis, "Le Principe d'Équilibre et le Concert Européen de la Paix de Westphalie
à l'Acte d'Algésiras" (1909)—Strupp, "Urkunden zur Geschichte des Völkerrechts," 2 vols.
(1911).
The famous Monroe Doctrine (see below, § 139) owes its origin to that
dangerous policy of the European Powers as regards intervention, although
this doctrine embraces other points besides intervention. As from 1810
onwards the Spanish colonies in South America were falling off from the
mother country and declaring their independence, and as Spain was, after
the Vienna Congress, thinking of reconquering these States with the help of
other Powers who upheld the principle of legitimacy, President Monroe
delivered his message on December 2, 1823, which pointed out amongst
other things, that the United States could not allow the interference of a
European Power with the States of the American continent.
Different from the intervention of the Powers of the Holy Alliance in the
interest of legitimacy were the two interventions in the interest of Greece
and Belgium. England, France, and Russia intervened in 1827 in the
struggle of Turkey with the Greeks, an intervention which led finally in
1830 to the independence of Greece. And the Great Powers of the time,
namely, England, Austria, France, Prussia, and Russia, invited by the
provisional Belgian Government, intervened in 1830 in the struggle of the
Dutch with the Belgians and secured the formation of a separate Kingdom
of Belgium.
It may be maintained that the establishment of Greece and Belgium
inferred the breakdown of the Holy Alliance. But it was not till the year
1848 that this alliance was totally swept away through the disappearance of
absolutism and the victory of the constitutional system in most States of
Europe. Shortly afterwards, in 1852, Napoleon III., who adopted the
principle of nationality,[45] became Emperor of France. Since he exercised
preponderant influence in Europe, one may say that this principle of
nationality superseded in European politics the principle of legitimacy.
[45] See Bulmerincq, "Praxis, Theorie und Codification des Völkerrechts" (1874), pp. 53-70.
The last event of this period is the Crimean War, which led to the Peace
as well as to the Declaration of Paris in 1856. This war broke out in 1853
between Russia and Turkey. In 1854, England, France, and Sardinia joined
Turkey, but the war continued nevertheless for another two years. Finally,
however, Russia was defeated, a Congress assembled at Paris, where
England, France, Austria, Russia, Sardinia, Turkey, and eventually Prussia,
were represented, and peace was concluded in March 1856. In the Peace
Treaty, Turkey is expressly received as a member into the Family of
Nations. Of greater importance, however, is the celebrated Declaration of
Paris regarding maritime International Law which was signed on April 16,
1856, by the delegates of the Powers that had taken part in the Congress.
This declaration abolished privateering, recognised the rules that enemy
goods on neutral vessels and that neutral goods on enemy vessels cannot be
confiscated, and stipulated that a blockade in order to be binding must be
effective. Together with the fact that at the end of the first quarter of the
nineteenth century the principle of the freedom of the high seas[46] became
universally recognised, the Declaration of Paris is a prominent landmark in
the progress of the Law of Nations. The Powers that had not been
represented at the Congress of Paris were invited to sign the Declaration
afterwards, and the majority of the members of the Family of Nations did
sign it before the end of the year 1856. The few States, such as the United
States of America, Spain, Mexico, and others, which did not then sign,[47]
have in practice since 1856 not acted in opposition to the Declaration, and
one may therefore, perhaps, maintain that the Declaration of Paris has
already become or will soon become universal International Law through
custom. Spain and Mexico, however, signed the Declaration in 1907, as
Japan had already done in 1886.
[46]See below, § 251.
[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.
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.
[56] See Martens, N.R.G. 2nd Ser. XXXIV. p. 700.
[57] See Martens, N.R.G. 3rd Ser. II. p. 9, and below, § 574.
The rivalry between France and Germany—the latter protesting against
the position conceded to France in Morocco by the Anglo-French
agreement signed at London on April 8, 1904—leads in January 1906 to the
Conference of Algeciras, in which Great Britain, France, Germany,
Belgium, Holland, Italy, Austria-Hungary, Portugal, Russia, Sweden, Spain,
and the United States of America take part, and where on April 7, 1906, the
General Act of the International Conference of Algeciras[58] is signed. This
Act, which recognises, on the one hand, the independence and integrity of
Morocco, and, on the other, equal commercial facilities for all nations in
that country, contains:—(1) A declaration concerning the organisation of
the Moroccan police; (2) regulations concerning the detection and
suppression of the illicit trade in arms; (3) an Act of concession for a
Moorish State Bank; (4) a declaration concerning an improved yield of the
taxes and the creation of new sources of revenue; (5) regulations respecting
customs and the suppression of fraud and smuggling; (6) a declaration
concerning the public services and public works. But it would seem that this
Act has not produced a condition of affairs of any permanency. Since, in
1911, internal disturbances in Morocco led to military action on the part of
France and Spain, Germany, in July of the same year, sent a man-of-war to
the port of Agadir. Thus the Moroccan question has been reopened, and
fresh negotiations for its settlement are taking place between the Powers.[59]
[58]See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.
[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]
[60] See Martens, N.R.G. 3rd Ser. II. p. 101.
[61] See Martens, N.R.G. 3rd Ser. II. p. 606.
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).
[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 Pharmacopœial 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]
[65] See Fried, "Handbuch der Friedensbewegung," 2nd ed., 2 vols. (1911).
[66] See below, § 476.
[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.
III
THE SCIENCE OF THE LAW OF NATIONS
Forerunners of Grotius.
§ 52. The science of the modern Law of Nations commences from
Grotius's work, "De Jure Belli ac Pacis libri III.," because in it a fairly
complete system of International Law was for the first time built up as an
independent branch of the science of law. But there were many writers
before Grotius who wrote on special parts of the Law of Nations. They are
therefore commonly called "Forerunners of Grotius." The most important of
these forerunners are the following: (1) Legnano, Professor of Law in the
University of Bologna, who wrote in 1360 his book "De bello, de
represaliis, et de duello," which was, however, not printed before 1477; (2)
Belli, an Italian jurist and statesman, who published in 1563 his book, "De
re militari et de bello"; (3) Brunus, a German jurist, who published in 1548
his book, "De legationibus"; (4) Victoria, Professor in the University of
Salamanca, who published in 1557 his "Relectiones theologicae,"[71] which
partly deals with the Law of War; (5) Ayala, of Spanish descent but born in
Antwerp, a military judge in the army of Alexandro Farnese, the Prince of
Parma. He published in 1582 his book, "De jure et officiis bellicis et
disciplina militari"; (6) Suarez, a Spanish Jesuit and Professor at Coimbra,
who published in 1612 his "Tractatus de legibus et de legislatore," in which
(II. c. 19, n. 8) for the first time the attempt is made to found a law between
the States on the fact that they form a community of States; (7) Gentilis
(1552-1608), an Italian jurist, who became Professor of Civil Law in
Oxford. He published in 1585 his work, "De legationibus," in 1588 and
1589 his "Commentationes de jure belli," and in 1598 an enlarged work on
the same matter under the title "De jure belli libri tres."[72] His "Advocatio
Hispanica" was edited, after his death, in 1613 by his brother Scipio.
Gentilis's book "De jure belli" supplies, as Professor Holland shows, the
model and the framework of the first and third book of Grotius's "De Jure
Belli ac Pacis." "The first step"—Holland rightly says—"towards making
International Law what it is was taken, not by Grotius, but by Gentilis."
[71]See details in Holland, Studies, pp. 51-52.
[72]Re-edited in 1877 by Professor Holland. On Gentilis, see Holland, Studies, pp. 1-391;
Westlake, Chapters, pp. 33-36; Walker, History, I. pp. 249-277; Thamm, "Albericus Gentilis und
seine Bedeutung für das Völkerrecht" (1896); Phillipson in The Journal of the Society of
Comparative Legislation, New Series, XII. (1912), pp. 52-80; Balch in A.J. V. (1911), pp. 665-
679.
Grotius.
§ 53. Although Grotius owes much to Gentilis, he is nevertheless the
greater of the two and bears by right the title of "Father of the Law of
Nations." Hugo Grotius was born at Delft in Holland in 1583. He was from
his earliest childhood known as a "wondrous child" on account of his
marvellous intellectual gifts and talents. He began to study law at Leyden
when only eleven years old, and at the age of fifteen he took the degree of
Doctor of Laws at Orleans in France. He acquired a reputation, not only as
a jurist, but also as a Latin poet and a philologist. He first practised as a
lawyer, but afterwards took to politics and became involved in political and
religious quarrels which led to his arrest in 1618 and condemnation to
prison for life. In 1621, however, he succeeded in escaping from prison and
went to live for ten years in France. In 1634 he entered into the service of
Sweden and became Swedish Minister in Paris. He died in 1645 at Rostock
in Germany on his way home from Sweden, whither he had gone to tender
his resignation.
Even before he had the intention of writing a book on the Law of Nations
Grotius took an interest in matters international. For in 1609, when only
twenty-four years old, he published—anonymously at first—a short treatise
under the title "Mare liberum," in which he contended that the open sea
could not be the property of any State, whereas the contrary opinion was
generally prevalent.[73] But it was not until fourteen years later that Grotius
began, during his exile in France, to write his "De Jure Belli ac Pacis libri
III.," which was published, after a further two years, in 1625, and of which
it has rightly been maintained that no other book, with the single exception
of the Bible, has ever exercised a similar influence upon human minds and
matters. The whole development of the modern Law of Nations itself, as
well as that of the science of the Law of Nations, takes root from this for
ever famous book. Grotius's intention was originally to write a treatise on
the Law of War, since the cruelties and lawlessness of warfare of his time
incited him to the work. But thorough investigation into the matter led him
further, and thus he produced a system of the Law of Nature and Nations. In
the introduction he speaks of many of the authors before him, and he
especially quotes Ayala and Gentilis. Yet, although he recognises their
influence upon his work, he is nevertheless aware that his system is
fundamentally different from those of his forerunners. There was in truth
nothing original in Grotius's start from the Law of Nature for the purpose of
deducing therefrom rules of a Law of Nations. Other writers before his
time, and in especial Gentilis, had founded their works upon it. But nobody
before him had done it in such a masterly way and with such a felicitous
hand. And it is on this account that Grotius bears not only, as already
mentioned, the title of "Father of the Law of Nations," but also that of
"Father of the Law of Nature."
[73]See details with regard to the controversy concerning the freedom of the open sea below, §§
248-250. Grotius's treatise "Mare liberum" is—as we know now—the twelfth chapter of the work
"De jure praedae," written in 1604 but never published by Grotius; it was not printed till 1868. See
below, § 250.
Grotius, as a child of his time, could not help starting from the Law of
Nature, since his intention was to find such rules of a Law of Nations as
were eternal, unchangeable, and independent of the special consent of the
single States. Long before Grotius, the opinion was generally prevalent that
above the positive law, which had grown up by custom or by legislation of a
State, there was in existence another law which had its roots in human
reason and which could therefore be discovered without any knowledge of
positive law. This law of reason was called Law of Nature or Natural Law.
But the system of the Law of Nature which Grotius built up and from which
he started when he commenced to build up the Law of Nations, became the
most important and gained the greatest influence, so that Grotius appeared
to posterity as the Father of the Law of Nature as well as that of the Law of
Nations.
Whatever we may nowadays think of this Law of Nature, the fact
remains unshaken that for more than two hundred years after Grotius
jurists, philosophers, and theologians firmly believed in it. And there is no
doubt that, but for the systems of the Law of Nature and the doctrines of its
prophets, the modern Constitutional Law and the modern Law of Nations
would not be what they actually are. The Law of Nature supplied the
crutches with whose help history has taught mankind to walk out of the
institutions of the Middle Ages into those of modern times. The modern
Law of Nations in especial owes its very existence[74] to the theory of the
Law of Nature. Grotius did not deny that there existed in his time already a
good many customary rules for the international conduct of the States, but
he expressly kept them apart from those rules which he considered the
outcome of the Law of Nature. He distinguishes, therefore, between the
natural Law of Nations on the one hand, and, on the other hand, the
customary Law of Nations, which he calls the voluntary Law of Nations.
The bulk of Grotius's interest is concentrated upon the natural Law of
Nations, since he considered the voluntary of minor importance. But
nevertheless he does not quite neglect the voluntary Law of Nations.
Although he mainly and chiefly lays down the rules of the natural Law of
Nations, he always mentions also voluntary rules concerning the different
matters.
[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.
[75]
See Rivier in Holtzendorff, I. p. 412. The last English translation is that of 1854 by William
Whewell.
Zouche.
§ 54. But the modern Law of Nations has another, though minor, founder
besides Grotius, and this is an Englishman, Richard Zouche[76] (1590-1660),
Professor of Civil Law at Oxford and a Judge of the Admiralty Court. A
prolific writer, the book through which he acquired the title of "Second
founder of the Law of Nations," appeared in 1650 and bears the title: "Juris
et judicii fecialis, sive juris inter gentes, et quaestionum de eodem
explicatio, qua, quae ad pacem et bellum inter diversos principes aut
populos spectant, ex praecipuis historico jure peritis exhibentur." This little
book has rightly been called the first manual of the positive Law of Nations.
The standpoint of Zouche is totally different from that of Grotius in so far
as, according to him, the customary Law of Nations is the most important
part of that law, although, as a child of his time, he does not at all deny the
existence of a natural Law of Nations. It must be specially mentioned that
Zouche is the first who used the term jus inter gentes for that new branch of
law. Grotius knew very well and says that the Law of Nations is a law
between the States, but he called it jus gentium, and it is due to his influence
that until Bentham nobody called the Law of Nations International Law.
[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."
[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).
[78] These three schools of writers must not be confounded with the division of the present
international jurists into the diplomatic and legal schools; see above, § 51, No. 5.
The Naturalists.
§ 55. "Naturalists," or "Deniers of the Law of Nations," is the appellation
of those writers who deny that there is any positive Law of Nations
whatever as the outcome of custom or treaties, and who maintain that all
Law of Nations is only a part of the Law of Nature. The leader of the
Naturalists is Samuel Pufendorf (1632-1694), who occupied the first chair
which was founded for the Law of Nature and Nations at a University—
namely, that at Heidelberg. Among the many books written by Pufendorf,
three are of importance for the science of International Law:—(1)
"Elementa jurisprudentiae universalis," 1666; (2) "De jure naturae et
gentium," 1672; (3) "De officio hominis et civis juxta legem naturalem,"
1673. Starting from the assertion of Hobbes, "De Cive," XIV. 4, that
Natural Law is to be divided into Natural Law of individuals and of States,
and that the latter is the Law of Nations, Pufendorf[79] adds that outside this
Natural Law of Nations no voluntary or positive Law of Nations exists
which has the force of real law (quod quidem legis proprie dictae vim
habeat, quae gentes tamquam a superiore profecta stringat).
[79] De jure naturae et gentium, II. c. 3, § 22.
The most celebrated follower of Pufendorf is the German philosopher,
Christian Thomasius (1655-1728), who published in 1688 his "Institutiones
jurisprudentiae divinae," and in 1705 his "Fundamenta juris naturae et
gentium." Of English Naturalists may be mentioned Francis Hutcheson
("System of Moral Philosophy," 1755) and Thomas Rutherford ("Institutes
of Natural Law; being the Substance of a Course of Lectures on Grotius
read in St. John's College, Cambridge," 2 vols. 1754-1756). Jean Barbeyrac
(1674-1744), the learned French translator and commentator of the works of
Grotius, Pufendorf, and others, and, further, Jean Jacques Burlamaqui
(1694-1748), a native of Geneva, who wrote the "Principes du droit de la
nature et des gens," ought likewise to be mentioned.
The Positivists.
§ 56. The "Positivists" are the antipodes of the Naturalists. They include
all those writers who, in contradistinction to Hobbes and Pufendorf, not
only defend the existence of a positive Law of Nations as the outcome of
custom or international treaties, but consider it more important than the
natural Law of Nations, the very existence of which some of the Positivists
deny, thus going beyond Zouche. The positive writers had not much
influence in the seventeenth century, during which the Naturalists and the
Grotians carried the day, but their time came in the eighteenth century.
Of seventeenth-century writers, the Germans Rachel and Textor must be
mentioned. Rachel published in 1676 his two dissertations, "De jure naturae
et gentium," in which he defines the Law of Nations as the law to which a
plurality of free States are subjected, and which comes into existence
through tacit or express consent of these States (Jus plurium liberalium
gentium pacto sive placito expressim aut tacite initum, quo utilitatis gratia
sibi in vicem obligantur). Textor published in 1680 his "Synopsis juris
gentium."
In the eighteenth century the leading Positivists, Bynkershoek, Moser,
and Martens, gained an enormous influence.
Cornelius van Bynkershoek[80] (1673-1743), a celebrated Dutch jurist,
never wrote a treatise on the Law of Nations, but gained fame through three
books dealing with different parts of this Law. He published in 1702 "De
dominio maris," in 1721 "De foro legatorum," in 1737 "Quaestionum juris
publici libri II." According to Bynkershoek the basis of the Law of Nations
is the common consent of the nations which finds its expression either in
international custom or in international treaties.
[80]See Phillipson in The Journal of the Society of Comparative Legislation, New Series, IX.
(1908), pp. 27-49.
Johann Jakob Moser (1701-1785), a German Professor of Law, published
many books concerning the Law of Nations, of which three must be
mentioned: (1) "Grundsätze des jetzt üblichen Völkerrechts in
Friedenszeiten," 1750; (2) "Grundsätze des jetzt üblichen Völkerrechts in
Kriegszeiten," 1752; (3) "Versuch des neuesten europäischen Völkerrechts
in Friedens- und Kriegszeiten," 1777-1780. Moser's books are magazines of
an enormous number of facts which are of the greatest value for the positive
Law of Nations. Moser never fights against the Naturalists, but he is totally
indifferent towards the natural Law of Nations, since to him the Law of
Nations is positive law only and based on international custom and treaties.
Georg Friedrich von Martens (1756-1821), Professor of Law in the
University of Göttingen, also published many books concerning the Law of
Nations. The most important is his "Précis du droit des gens moderne de
l'Europe," published in 1789, of which William Cobbett published in 1795
at Philadelphia an English translation, and of which as late as 1864
appeared a new edition at Paris with notes by Charles Vergé. Martens began
the celebrated collection of treaties which goes under the title "Martens,
Recueil des Traités," and is continued to our days.[81] The influence of
Martens was great, and even at the present time is considerable. He is not
an exclusive Positivist, since he does not deny the existence of natural Law
of Nations, and since he sometimes refers to the latter in case he finds a gap
in the positive Law of Nations. But his interest is in the positive Law of
Nations, which he builds up historically on international custom and
treaties.
[81]Georg Friedrich von Martens is not to be confounded with his nephew Charles de Martens,
the author of the "Causes célèbres de droit des gens" and of the "Guide diplomatique."
The Grotians.
§ 57. The "Grotians" stand midway between the Naturalists and the
Positivists. They keep up the distinction of Grotius between the natural and
the voluntary Law of Nations, but, in contradistinction to Grotius, they
consider the positive or voluntary of equal importance to the natural, and
they devote, therefore, their interest to both alike. Grotius's influence was so
enormous that the majority of the authors of the seventeenth and eighteenth
centuries were Grotians, but only two of them have acquired a European
reputation—namely, Wolff and Vattel.
Christian Wolff (1679-1754), a German philosopher who was first
Professor of Mathematics and Philosophy in the Universities of Halle and
Marburg and afterwards returned to Halle as Professor of the Law of Nature
and Nations, was seventy years of age when, in 1749, he published his "Jus
gentium methodo scientifica pertractatum." In 1750 followed his
"Institutiones juris naturae et gentium." Wolff's conception of the Law of
Nations is influenced by his conception of the civitas gentium maxima. The
fact that there is a Family of Nations in existence is strained by Wolff into
the doctrine that the totality of the States forms a world-State above the
component member States, the so-called civitas gentium maxima. He
distinguishes four different kinds of Law of Nations—namely, the natural,
the voluntary, the customary, and that which is expressly created by treaties.
The latter two kinds are alterable, and have force only between those single
States between which custom and treaties have created them. But the
natural and the voluntary Law of Nations are both eternal, unchangeable,
and universally binding upon all the States. In contradistinction to Grotius,
who calls the customary Law of Nations "voluntary," Wolff names
"voluntary" those rules of the Law of Nations which are, according to his
opinion, tacitly imposed by the civitas gentium maxima, the world-State,
upon the member States.
Emerich de Vattel[82] (1714-1767), a Swiss from Neuchâtel, who entered
into the service of Saxony and became her Minister at Berne, did not in the
main intend any original work, but undertook the task of introducing
Wolff's teachings concerning the Law of Nations into the courts of Europe
and to the diplomatists. He published in 1758 his book, "Le droit des gens,
ou principes de la loi naturelle appliqués à la conduite et aux affaires des
Nations et des Souverains." But it must be specially mentioned that Vattel
expressly rejects Wolff's conception of the civitas gentium maxima in the
preface to his book. Numerous editions of Vattel's book have appeared, and
as late as 1863 Pradier-Fodéré re-edited it at Paris. An English translation
by Chitty appeared in 1834 and went through several editions. His influence
was very great, and in diplomatic circles his book still enjoys an unshaken
authority.
[82]See Montmorency in The Journal of the Society of Comparative Legislation, New Series, X.
(1909), pp. 17-39.
I
SOVEREIGN STATES AS INTERNATIONAL PERSONS
II
RECOGNITION OF STATES AS INTERNATIONAL PERSONS
III
CHANGES IN THE CONDITION OF INTERNATIONAL PERSONS
Grotius, II. c. 9, §§ 5-13—Pufendorf, VIII. c. 12—Vattel, I. § 11—Hall, § 2—Halleck, I. pp.
89-92—Phillimore, I. §§ 124-137—Taylor, § 163—Westlake, I. pp. 58-66—Wheaton, §§
28-32—Moore, I. §§ 76-79—Bluntschli, §§ 39-53—Hartmann, §§ 12-13—Heffter, § 24—
Holtzendorff in Holtzendorff, II. pp. 21-23—Liszt, § 5—Ullmann, §§ 31 and 35—Bonfils,
Nos. 214-215—Despagnet, Nos. 86-89—Pradier-Fodéré, I. Nos. 146-157—Nys, I. pp. 399-
401—Rivier, I. § 3—Calvo, I. §§ 81-106—Fiore, I. Nos. 321-331, and Code, Nos. 119-141
—Martens, I. §§ 65-69.
IV
SUCCESSION OF INTERNATIONAL PERSONS
[110]
V
COMPOSITE INTERNATIONAL PERSONS
VI
VASSAL STATES
VII
STATES UNDER PROTECTORATE
Hall, §§ 4 and 38*—Westlake, I. pp. 22-24—Lawrence, § 39—Phillimore, I. 75-82—Twiss, I.
§§ 22-36—Taylor, §§ 134-139—Wheaton, §§ 34-36—Moore, I. § 14—Bluntschli, § 78—
Hartmann, § 9—Heffter, §§ 19 and 22—Holtzendorff in Holtzendorff, II. pp. 98-117—
Gareis, § 15—Liszt, § 6—Ullmann, § 26—Bonfils, Nos. 176-187—Despagnet, Nos. 130-
136—Mérignhac, II. pp. 180-220—Pradier-Fodéré, I. Nos. 94-108—Nys, I. pp. 364-366—
Rivier, I. § 4—Calvo, I. §§ 62-65—Fiore, I. § 341, and Code, Nos. 111-118—Martens, I. §§
60-61—Pillet in R.G. II. (1895), pp. 583-608—Heilborn, "Das völkerrechtliche Protectorat"
(1891)—Engelhardt, "Les Protectorats, &c." (1896)—Gairal, "Le protectorat international"
(1896)—Despagnet, "Essai sur les protectorats" (1896)—Boghitchévitch,
"Halbsouveränität" (1903).
Conception of Protectorate.
§ 92. Legally and materially different from suzerainty is the relation of
protectorate between two States. It happens that a weak State surrenders
itself by treaty into the protection of a strong and mighty State in such a
way that it transfers the management[144] of all its more important[145]
international affairs to the protecting State. Through such treaty an
international union is called into existence between the two States, and the
relation between them is called protectorate. The protecting State is
internationally the superior of the protected State, the latter has with the loss
of the management of its more important international affairs lost its full
sovereignty and is henceforth only a half-Sovereign State. Protectorate is,
however, a conception which, just like suzerainty, lacks exact juristic
precision,[146] as its real meaning depends very much upon the special case.
Generally speaking, protectorate may, again like suzerainty, be called a kind
of international guardianship.
[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.
[145] That the admittance of Consuls belongs to these affairs became apparent in 1906, when
Russia, after some hesitation, finally agreed upon Japan, and not Korea, granting the exequatur to
the Consul-general appointed by Russia for Korea, which was then a State under Japanese
protectorate. See below, § 427.
[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.
VIII
NEUTRALISED STATES
Switzerland.
§ 98. The Swiss Confederation,[158] which was recognised by the
Westphalian Peace of 1648, has pursued a traditional policy of neutrality
since that time. During the French Revolution and the Napoleonic Wars,
however, she did not succeed in keeping up her neutrality. French
intervention brought about in 1803 a new Constitution, according to which
the single cantons ceased to be independent States and Switzerland turned
from a Confederation of States into the simple State of the Helvetic
Republic, which was, moreover, through a treaty of alliance linked to
France. It was not till 1813 that Switzerland became again a Confederation
of States, and not till 1815 that she succeeded in becoming permanently
neutralised. On March 20, 1815, at the Congress at Vienna, Great Britain,
Austria, France, Portugal, Prussia, Spain, and Russia signed the declaration
in which the permanent neutrality of Switzerland was recognised and
collectively guaranteed, and on May 27, 1815, Switzerland acceded to this
declaration. Article 84 of the Act of the Vienna Congress confirmed this
declaration, and an Act, dated November 20, 1815, of the Powers
assembled at Paris after the final defeat of Napoleon recognised it again.[159]
Since that time Switzerland has always succeeded in keeping up her
neutrality. She has built fortresses and organised a strong army for that
purpose, and in January 1871, during the Franco-German War, she disarmed
a French army of more than 80,000 men who had taken refuge on her
territory, and guarded them till after the war.
[158] See Schweizer, "Geschichte der schweizerischen Neutralität," 2 vols. (1895).
[159] See Martens, N.R. II. pp. 157, 173, 419, 740.
Belgium.
§ 99. Belgium[160] became neutralised from the moment she was
recognised as an independent State in 1831. The Treaty of London, signed
on November 15, 1831, by Great Britain, Austria, Belgium, France, Prussia,
and Russia, stipulates in its article 7 at the same time the independence and
the permanent neutrality of Belgium, and in its article 25 the guaranty of the
signatory five Great Powers.[161] And the guaranty was renewed in article 1
of the Treaty of London of April 19, 1839,[162] to which the same Powers are
parties, and which is the final treaty concerning the separation of Belgium
from the Netherlands.
[160] See Descamps, "La Neutralité de la Belgique" (1902).
[161] See Martens, N.R. XI. pp. 394 and 404.
[162] See Martens, N.R. XVI. p. 790.
IX
NON-CHRISTIAN STATES
X
THE HOLY SEE
XI
INTERNATIONAL PERSONS OF THE PRESENT DAY
European States.
§ 108. All the seventy-four European States are, of course, members of
the Family of Nations. They are the following:
Great Powers are:
Austria-Hungary.
Great Britain.
France.
Italy.
Germany.
Russia.
Smaller States are:
Bulgaria.
Denmark.
Greece.
Holland.
Montenegro.
Norway.
Portugal.
Roumania.
Servia.
Spain.
Sweden.
Turkey.
Very small, but nevertheless full-Sovereign, States are:
American States.
§ 109. In America there are twenty-one States which are members of the
Family of Nations, but it must be emphasised that the member-States of the
five Federal States on the American continent, although they are part-
Sovereign, have no footing within the Family of Nations, because the
American Federal States, in contradistinction to Switzerland and Germany,
absorb all possible international relations of their member-States.
In North America there are:
Costa Rica.
Cuba.
San Domingo.
Guatemala.
Hayti.
Honduras.
Nicaragua.
Panama (since 1903).
San Salvador.
In South America there are:
African States.
§ 110. In Africa the Negro Republic of Liberia is the only real and full
member of the Family of Nations. Egypt and Tunis are half-Sovereign, the
one under Turkish suzerainty, the other under French protectorate. Morocco
and Abyssinia are both full-Sovereign States, but for some parts only within
the Family of Nations. The Soudan has an exceptional position; being under
the condominium of Great Britain and Egypt, a footing of its own within the
Family of Nations the Soudan certainly has not.
Asiatic States.
§ 111. In Asia only Japan is a full and real member of the Family of
Nations. Persia, China, Siam, Tibet, and Afghanistan are for some parts
only within that family.
CHAPTER II
POSITION OF THE STATES WITHIN THE FAMILY OF
NATIONS
I
INTERNATIONAL PERSONALITY
Other Characteristics of the position of the States within the Family of Nations.
§ 114. But the position of the States within the Family of Nations is not
exclusively characterised by these qualities. The States make a community
because there is constant intercourse between them. Intercourse is therefore
a condition without which the Family of Nations would not and could not
exist. Again, there are exceptions to the protection of the qualities which
constitute the International Personality of the States, and these exceptions
are likewise characteristic of the position of the States within the Family of
Nations. Thus, in time of war belligerents have a right to violate one
another's Personality in many ways; even annihilation of the vanquished
State, through subjugation after conquest, is allowed. Thus, further, in time
of peace as well as in time of war, such violations of the Personality of
other States are excused as are committed in self-preservation or through
justified intervention. And, finally, jurisdiction is also important for the
position of the States within the Family of Nations. Intercourse, self-
preservation, intervention, and jurisdiction must, therefore, likewise be
discussed in this chapter.
II
EQUALITY, RANK, AND TITLES
III
DIGNITY
Dignity a Quality.
§ 120. The majority of text-book writers maintain that there is a
fundamental right of reputation and of good name belonging to every State.
Such a right, however, does not exist, because no duty corresponding to it
can be traced within the Law of Nations. Indeed, the reputation of a State
depends just as much upon behaviour as that of every citizen within its
boundaries. A State which has a corrupt government and behaves unfairly
and perfidiously in its intercourse with other States will be looked down
upon and despised, whereas a State which has an uncorrupt government and
behaves fairly and justly in its international dealings will be highly
esteemed. No law can give a good name and reputation to a rogue, and the
Law of Nations does not and cannot give a right to reputation and good
name to such a State as has not acquired them through its attitude. There are
some States—nomina sunt odiosa!—which indeed justly possess a bad
reputation.
On the other hand, a State as a member of the Family of Nations
possesses dignity as an International Person. Dignity is a quality recognised
by other States, and it adheres to a State from the moment of its recognition
till the moment of its extinction, whatever behaviour it displays. Just as the
dignity of every citizen within a State commands a certain amount of
consideration on the part of fellow-citizens, so the dignity of a State
commands a certain amount of consideration on the part of other States,
since otherwise the different States could not live peaceably in the
community which is called the Family of Nations.
Consequences of the Dignity of States.
§ 121. Since dignity is a recognised quality of States as International
Persons, all members of the Family of Nations grant reciprocally to one
another by custom certain rights and ceremonial privileges. These are
chiefly the rights to demand—that their heads shall not be libelled and
slandered; that their heads and likewise their diplomatic envoys shall be
granted exterritoriality and inviolability when abroad, and at home and
abroad in the official intercourse with representatives of foreign States shall
be granted certain titles; that their men-of-war shall be granted
exterritoriality when in foreign waters; that their symbols of authority, such
as flags and coats of arms, shall not be made improper use of and not be
treated with disrespect on the part of other States. Every State must not only
itself comply with the duties corresponding to these rights of other States,
but must also prevent its subjects from such acts as violate the dignity of
foreign States, and must punish them for acts of that kind which it could not
prevent. The Municipal Laws of all States must therefore provide for the
punishment of those who commit offences against the dignity of foreign
States,[192] and, if the Criminal Law of the land does not contain such
provisions, it is no excuse for failure by the respective States to punish
offenders. But it must be emphasised that a State must prevent and punish
such acts only as really violate the dignity of a foreign State. Mere criticism
of policy, historical verdicts concerning the attitude of States and their
rulers, utterances of moral indignation condemning immoral acts of foreign
Governments and their monarchs need neither be suppressed nor punished.
[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.
Maritime Ceremonials.
§ 122. Connected with the dignity of States are the maritime ceremonials
between vessels and between vessels and forts which belong to different
States. In former times discord and jealousy existed between the States
regarding such ceremonials, since they were looked upon as means of
keeping up the superiority of one State over another. Nowadays, so far as
the Open Sea is concerned, they are considered as mere acts of courtesy
recognising the dignity of States. They are the outcome of international
usages, and not of International Law, in honour of the national flags. They
are carried out by dipping flags or striking sails or firing guns.[193] But so far
as the territorial maritime belt is concerned, littoral States can make laws
concerning maritime ceremonials to be observed by foreign merchantmen.
[194]
[193] See Halleck, I. pp. 124-142, where the matter is treated with all details. See also below, §
257.
[194] See below, § 187.
IV
INDEPENDENCE AND TERRITORIAL AND PERSONAL SUPREMACY
V
SELF-PRESERVATION
VI
INTERVENTION
Intervention by Right.
§ 135. It is apparent that such interventions as take place by right must be
distinguished from others. Wherever there is no right of intervention,
although it may be admissible and excused, an intervention violates either
the external independence or the territorial or the personal supremacy. But if
an intervention takes place by right, it never contains such a violation,
because the right of intervention is always based on a legal restriction upon
the independence or territorial or personal supremacy of the State
concerned, and because the latter is in duty bound to submit to the
intervention. Now a State may have a right of intervention against another
State, mainly for six reasons:[214]
[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."
[215] See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79.—Even if no special right of
intervention is stipulated, it nevertheless exists in such cases. Thus—see below, § 574—those
Powers which have guaranteed the integrity of Norway under the condition that she does not cede
any part of her territory to any foreign Power would have a right to intervene in case such a
cession were contemplated, although the treaty concerned does not stipulate this.
[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.
[217] But this is not generally recognised; see, for instance, Hall, § 93, who denies the existence
of such a right. I do not see the reason why a State should not be able to undertake the obligation
to retain a certain form of government or dynasty. That historical events can justify such State in
considering itself no longer bound by such treaty according to the principle rebus sic stantibus
(see below, § 539) is another matter.
(6) The right of protection[218] over citizens abroad, which a State holds,
may cause an intervention by right to which the other party is legally bound
to submit. And it matters not whether protection of the life, security, honour,
or property of a citizen abroad is concerned.
[218] See below, § 319.
The so-called Drago[219] doctrine, which asserts the rule that intervention
is not allowed for the purpose of making a State pay its public debts, is
unfounded, and has not received general recognition, although Argentina
and some other South American States tried to establish this rule at the
second Hague Peace Conference of 1907. But this Conference adopted, on
the initiative of the United States of America, a "Convention[220] respecting
the Limitation of the Employment of Force for the Recovery of Contract
Debts." According to article 1 of this Convention, the contracting Powers
agree not to have recourse to armed force for the recovery of contract debts
claimed from the Government of one country by the Government of another
country as being due to its nationals. This undertaking is, however, not
applicable when the debtor State refuses or neglects to reply to an offer of
arbitration, or, after accepting the offer, renders the settlement of the
compromis impossible, or, after the arbitration, fails to submit to the award.
—It must be emphasised that the stipulations of this Convention concern
the recovery of all contract debts, whether or no they arise from public
loans.
[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.
[220] See Scott in A.J. II. (1908), pp. 78-94.
VII
INTERCOURSE
VIII
JURISDICTION
Jurisdiction important for the position of the States within the Family of Nations.
§ 143. Jurisdiction is for several reasons a matter of importance as
regards the position of the States within the Family of Nations. States
possessing independence and territorial as well as personal supremacy can
naturally extend or restrict their jurisdiction as far as they like. However, as
members of the Family of Nations and International Persons, the States
must exercise self-restraint in the exercise of this natural power in the
interest of one another. Since intercourse of all kinds takes place between
the States and their subjects, the matter ought to be thoroughly regulated by
the Law of Nations. But such regulation has as yet only partially grown up.
The consequence of both the regulation and non-regulation of jurisdiction is
that concurrent jurisdiction of several States can often at the same time be
exercised over the same persons and matters. And it can also happen that
matters fall under no jurisdiction because the several States which could
extend their jurisdiction over these matters refuse to do so, leaving them to
each other's jurisdiction.
Restrictions upon Territorial Jurisdiction.
§ 144. As all persons and things within the territory of a State fall under
its territorial supremacy, every State has jurisdiction over them. The Law of
Nations, however, gives a right to every State to claim so-called
exterritoriality and therefore exemption from local jurisdiction chiefly for
its head,[231] its diplomatic envoys,[232] its men-of-war,[233] and its armed
forces[234] abroad. And partly by custom and partly by treaty obligations,
Eastern non-Christian States, Japan now excepted, are restricted[235] in their
territorial jurisdiction with regard to foreign resident subjects of Christian
Powers.
[231] Details below, §§ 348-353, and 356.—The exemption of a State itself from the jurisdiction
of another is not based upon a claim to exterritoriality, but upon the claim to equality; see above, §
115.
[232] Details below, §§ 385-405.
[233] Details below, §§ 450-451.
[234] Details below, § 445.
[235] Details below, §§ 318 and 440.
CHAPTER III
RESPONSIBILITY OF STATES
I
ON STATE RESPONSIBILITY IN GENERAL
II
STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES
III
STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS
See the literature quoted above at the commencement of § 148, and especially Moore, VI. §§
998-1018.
Internationally injurious Acts of administrative Officials and Military and Naval Forces.
§ 163. Internationally injurious acts committed in the exercise of their
official functions by administrative officials and military and naval forces
of a State without that State's command or authorisation, are not
international delinquencies because they are not State acts. But a State bears
a wide, unlimited, and unrestricted vicarious responsibility for such acts
because its administrative officials and military and naval forces are under
its disciplinary control, and because all acts of such officials and forces in
the exercise of their official functions are prima facie acts of the respective
State.[258] Therefore, a State has, first of all, to disown and disapprove of
such acts by expressing its regret or even apologising to the Government of
the injured State; secondly, damages must be paid where required; and,
lastly, the offenders must be punished according to the merits of the special
case.
[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]
[259] See R.G. XIII. (1906), pp. 200-206.
[260] Another example occurred in 1904, when the Russian Baltic Fleet, on its way to the Far
East during the Russo-Japanese war, fired upon the Hull Fishing Fleet off the Dogger Bank; see
below, vol. II. § 5.
(3) On July 15, 1911, while the Spanish were in occupation of Alcazar in
Morocco, M. Boisset, the French Consular Agent, who was riding back to
Alcazar from Suk el Arba with his native servants, was stopped at the gate
of the town by a Spanish sentinel. The sentinel refused to allow him to enter
unless he and his servants first delivered up their arms. As M. Boisset
refused, the sentinel barred the way with his fixed bayonet and called out
the guard. M. Boisset's horse reared, and the sentinel thereupon covered
him with his rifle. After parleying to no purpose with the guard, to whom he
explained who he was, the French Consular Agent was conducted by an
armed escort of Spanish soldiers to the Spanish barracks. A native rabble
followed upon the heels of the procession and cried out: "The French
Consular Agent is being arrested by the Spaniards." Upon arriving at the
barracks M. Boisset had an interview with a Spanish officer, who, without
in any way expressing regret, merely observed that there had been a
misunderstanding (equivocacione), and allowed the French Consular Agent
to go his way. It is obvious that, as Consuls in Eastern non-Christian
countries, Japan now excepted, are exterritorial and inviolable, the arrest of
M. Boisset was a great injury to France, which lodged a complaint with
Spain. As promptly as July 19 the Spanish Government tendered a formal
apology to France, and instructed the Spanish Commander at Alcazar to
tender a formal apology to M. Boisset.
But it must be specially emphasised that a State never bears any
responsibility for losses sustained by foreign subjects through legitimate
acts of administrative officials and military and naval forces. Individuals
who enter foreign territory submit themselves to the law of the land, and
their home State has no right to request that they should be otherwise
treated than as the law of the land authorises a State to treat its own
subjects.[261] Therefore, since the Law of Nations does not prevent a State
from expelling aliens, the home State of an expelled alien cannot request
the expelling State to pay damages for the losses sustained by the expelled
through his having to leave the country. Therefore, further, a State need not
make any reparation for losses sustained by an alien through legitimate
measures taken by administrative officials and military forces in time of
war, insurrection,[262] riot, or public calamity, such as a fire, an epidemic
outbreak of dangerous disease, and the like.
[261] Provided, however, such law does not violate essential principles of justice. See below, §
320.
[262] See below, § 167.
IV
STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS
See the literature quoted above at the commencement of § 148, and especially Moore, VI. §§
1019-1031.
I
ON STATE TERRITORY IN GENERAL
Territorial Subsoil.
§ 173. The subsoil beneath the territorial land and water[288] is of
importance on account of telegraph and telephone wires and the like, and
further on account of the working of mines and of the building of tunnels. A
special part of territory the territorial subsoil is not, although this is
frequently asserted. But it is a universally recognised rule of the Law of
Nations that the subsoil to an unbounded depth belongs to the State which
owns the territory on the surface.
[288] As regards the subsoil of the Open Sea, see below, §§ 287c and 287d.
Territorial Atmosphere.
§ 174. The space of the territorial atmosphere is no more a special part of
territory than the territorial subsoil, but it is of the greatest importance on
account of wires for telegraphs, telephones, electric traction, and the like;
further on account of wireless telegraphy and of aviation.
(1) Nothing need be said concerning wires for telegraphs and the like,
except that obviously the territorial State can prevent neighbouring States
from making use of its territorial atmosphere for such wires.
(2) As regards wireless telegraphy,[289] the "International Radiographic
Convention," signed at Berlin on November 3, 1906, represents an
agreement[290] of the signatory Powers concerning the exchange of radio-
telegrams on the part of coast stations and ship stations, but it contains no
stipulation respecting the question in general whether the territorial State is
compelled to allow the passage over its territory of waves emanating from a
foreign wireless telegraphy station. There ought to be no doubt that no such
compulsion exists according to customary International Law, and that
therefore the territorial State can prevent the passage of such waves[291] over
its territory.
[289] See Meili, "Die drahtlose Telegraphie, &c." (1908); Schneeli, "Drahtlose Telegraphie und
Völkerrecht" (1908); Landsberg, "Die drahtlose Telegraphie" (1909); Kausen, "Die drahtlose
Telegraphie im Völkerrecht" (1910); Rolland in R.G. XIII. (1906), pp. 58-92; Fauchille in
Annuaire, XXI. (1906), pp. 76-87; Bonfils, Nos. 53110 and 53111; Despagnet, No. 433 quater;
Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.
[290] See below, §§ 287a, 287b, and 582, No. 4.
[291] The Institute of International Law—see Annuaire, XXI. (1906), p. 328—proposes by art. 3
of its "Régime de la Télégraphie sans fil" to restrict the power of the territorial State to exclude
such waves from passing over its territory to the case in which the exclusion is necessary in the
interest of its security.
(3) The space of the territorial atmosphere is of particular importance
with regard to aviation, but no customary or conventional rules of
International Law are as yet in existence which settle the very much
controverted[292] matter. An international conference for the purpose of
agreeing upon an international convention concerning aviation met in 1910
at Paris, but did not produce any result. The fact is that, since aviation is
still in its infancy, practical experience is lacking concerning many
questions which can only be settled when aviation has been more
developed. It is tempting to apply the rules concerning the maritime belt
and the Open Sea analogously to the space of the atmosphere, and,
therefore, to distinguish between a zone of a certain height, in which the
territorial State can exercise sovereignty, and, on the other hand, the
atmosphere beyond that height, which is to be considered free like the Open
Sea. This comparison between the atmosphere and the sea is, however,
faulty for two reasons. Firstly, the Open Sea is an international highway that
connects distant lands between which, except by sea, no communication
would be possible, whereas the atmosphere is not such an indispensable
highway. Secondly, navigation on the Open Sea comprises no danger
whatever to the security of the different States and the lives and property of
their inhabitants, whereas aviation threatens such danger to a great extent.
The chief question at issue is, therefore, whether the territorial State should
or should not be considered to exercise sovereignty over the space of the
atmosphere to an unbounded height, and to have the power to prevent the
passage of foreign aviators altogether, or to enact stringent rules with which
they have to comply. It would probably be best for the States in conference
to adopt such rules concerning the whole space of the atmosphere as are
similar to those valid by customary International Law for the maritime belt,
that is:—to recognise, on the one hand, sovereignty of the territorial State
over the space of its atmosphere, but, on the other hand, to give a right to
foreign States to demand from the territorial State that foreign private—but
not public!—air-vessels may pass through its atmosphere, provided they
comply with the rules enacted by the territorial State for the aerial traffic.
[293]
[292] The literature on aviation is abundant, see Holtzendorff, II. p. 230; Lawrence, § 73;
Bonfils, Nos. 5311-5319; Despagnet, Nos. 433 bis and 433 ter; Mérignhac, II. pp. 398-410; Nys, I.
pp. 523-532; Grünwald, "Das Luftschiff, &c." (1908); Meili, "Das Luftschiff, &c." (1908);
Meurer, "Luftschiffahrtsrecht" (1909); Meyer, "Die Erschliessung des Luftraums und ihre
rechtlichen Folgen" (1909); Magnani, "Il diritto sullo spazio aereo e l'aeronautica" (1909); Leech,
"The Jurisprudence of the Air" (1910), a reprint from the Journal of the Royal Artillery, vol.
XXXVII.; Lycklama à Nijeholt, "Air Sovereignty" (1910); Hazeltine, "The Law of the Air"
(1911); Bielenberg, "Die Freiheit des Luftraums" (1911); Catellani, "Il diritto aereo" (1911); Sperl,
"Die Luftschiffahrt, &c." (1911); Loubeyre, "Les principes du droit aérien" (1911); Fauchille in
Annuaire, XIX. (1902) pp. 19-114, XXIV. (1911), and in R.G. VIII. (1901), pp. 414-485, XVII.
(1910), pp. 55-62; Zitelmann in the Zeitschrift für internationales Privat- und Öffentliches Recht,
XIX. (1909), pp. 458-496; Baldwin and Kuhm in A.J. IV. (1910), pp. 95-108, 109-132; Baldwin in
Z.V. V. (1911), pp. 394-399.
[293] The Institute of International Law is studying the question of aviation, and passed, in 1911,
at its meeting in Madrid, some rules concerning the "Régime juridiques des Aéronefs"; see
Annuaire, XXIV. (1911).
Aviation through the atmosphere above the Open Sea will require special
regulation on account of the dangers to the vessels of all nations traversing
the sea, as will also aviation in general in time of war.
Inalienability of Parts of Territory.
§ 175. It should be mentioned that not every part of territory is alienable
by the owner-State. For it is evident that the territorial waters are as much
inseparable appurtenances of the land as are the territorial subsoil and
atmosphere. Only pieces of land together with the appurtenant territorial
waters are alienable parts of territory.[294] There is, however, one exception
to this, since boundary waters[295] may wholly belong to one of the riparian
States, and may therefore be transferred through cession from one to the
other riparian State without the bank itself. But it is obvious that this is only
an apparent, not a real, exception to the rule that territorial waters are
inseparable appurtenances of the land. For boundary waters that are ceded
to the other riparian State remain an appurtenance of land, although they are
now an appurtenance of the one bank only.
[294] See below, § 185.
[295] See below, § 199.
III
RIVERS
Grotius, II. c. 2, §§ 11-15—Pufendorf, III. c. 3, § 8—Vattel, II. §§ 117, 128, 129, 134—Hall, §
39—Westlake, I. pp. 142-159—Lawrence, § 92—Phillimore, I. §§ 125-151—Twiss, I. §
145—Halleck, I. pp. 171-177—Taylor, §§ 233-241—Walker, § 16—Wharton, I. § 30—
Moore, I. §§ 128-132—Wheaton, §§ 192-205—Bluntschli, §§ 314, 315—Hartmann, § 58
—Heffter, § 77—Caratheodory in Holtzendorff, II. pp. 279-406—Gareis, § 20—Liszt, §§ 9
and 27—Ullmann, §§ 87 and 105—Bonfils, Nos. 520-531—Despagnet, Nos. 419-421—
Mérignhac, II. pp. 605-632—Pradier-Fodéré, II. Nos. 688-755—Nys, I. pp. 438-441, and II.
pp. 109-131—Rivier, I. p. 142 and § 14—Calvo, I. §§ 302-340—Fiore, II. Nos. 755-776,
and Code, §§ 283-285 and 976-982—Martens, I. § 102, II. § 57—Delavaud, "Navigation ...
sur les fleuves internationaux" (1885)—Engehardt, "Du régime conventionnel des fleuves
internationaux" (1879), and "Histoire du droit fluvial conventionnel" (1889)—Vernesco,
"Des fleuves en droit international" (1888)—Orban, "Etude sur le droit fluvial
international" (1896)—Berges, "Du régime de navigation des fleuves internationaux"
(1902)—Lopez, "Regimen internacional de los rios navigables" (1905)—Huber in Z.V. I.
(1906), pp. 29 and 159—Hyde in A.J. IV. (1910), pp. 145-155.
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.
[300] See Martens, N.R.G. XV. p. 776. The documents concerning navigation on the Danube are
collected by Sturdza, "Recueil de documents relatifs à la liberté de navigation du Danube" (Berlin,
1904).
A further development took place at the Congo Conference at Berlin in
1884-85, since the General Act[301] of this Conference stipulated free
navigation on the rivers Congo and Niger and their tributaries, and created
the so-called "International Congo Commission" as a special international
organ for the regulation of the navigation of the said rivers.
[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.
[302] See Taylor, § 238, and Moore, I. § 131, pp. 639-651.
Thus the principle of free navigation, which is a settled fact as regards all
European and some African international rivers, becomes more and more
extended over all other international rivers of the world. But when several
writers maintain that free navigation on all international rivers of the world
is already a recognised rule of the Law of Nations, they are decidedly
wrong, although such a universal rule will certainly be proclaimed in the
future. There can be no doubt that as regards the South American rivers the
principle is recognised by treaties between a small number of Powers only.
And there are examples which show that the principle is not yet universally
recognised. Thus by article 4 of the Treaty of Washington of 1854 between
Great Britain and the United States the former grants to vessels of the latter
free navigation on the river St. Lawrence as a revocable privilege, and
article 26 of the Treaty of Washington of 1871 stipulates for vessels of the
United States, but not for vessels of other nations, free navigation "for ever"
on the same river.[303]
[303] See Wharton, pp. 81-83; Moore, I. § 131, p. 631, and Hall, § 39.
However this may be, the principle of free navigation embodies the rule
that vessels of all nations must be admitted without payment of any dues
whatever. Yet this principle does not exclude the levy of dues from all
navigating vessels for expenses incurred by the riparian States for such
improvements of the navigability of rivers as embankments, breakwaters,
and the like.[304]
[304] As regards the question of levying dues for navigation of the rivers Rhine and Elbe, see
Arndt in Z.V. IV. (1910), pp. 208-229.
I should mention that the Institute of International Law, at its meeting at
Heidelberg in 1888, adopted a Projet de Règlement international de
navigation fluviale,[305] which comprises forty articles.
[305] See Annuaire, IX. p. 182.
IV
LAKES AND LAND-LOCKED SEAS
V
CANALS
Westlake, I. pp. 320-331—Lawrence, § 90, and Essays, pp. 41-162—Phillimore, I. §§ 399 and
207—Moore, III. §§ 336-371—Caratheodory in Holtzendorff, II. pp. 386-405—Liszt, § 27
—Ullmann, § 106—Bonfils, Nos. 511-515—Despagnet, No. 418—Mérignhac, II. pp. 597-
604—Pradier-Fodéré, II. Nos. 658-660—Nys, I. pp. 475-495—Rivier, I. § 16—Calvo, I. §§
376-380—Fiore, Code, Nos. 983-987—Martens, II. § 59—Sir Travers Twiss in R.I. VII.
(1875), p. 682, XIV. (1882), p. 572, XVII. (1885), p. 615—Holland, Studies, pp. 270-298—
Asser in R.I. XX. (1888), p. 529—Bustamante in R.I. XXVII. (1895), p. 112—Rossignol,
"Le Canal de Suez" (1898)—Camand, "Étude sur le régime juridique du Canal de Suez"
(1899)—Charles-Roux, "L'Isthme et le canal de Suez" (1901)—Othalom, "Der Suezkanal"
(1905)—Müller-Heymer, "Der Panamakanal in der Politik der Vereinigten Staaten" (1909)
—Arias, "The Panama Canal" (1911)—Hains, Davis, Knapp, Wambough, Olney, and
Kennedy in A.J. III. (1909), pp. 354 and 885, IV. (1910), p. 314, V. (1911), pp. 298, 615,
620.
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.
[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.
[326]
See Martens, N.R.G. 2nd Ser. XXXI. p. 599.
[327]
That this grant is really cession all but in name, was pointed out above, § 171 (4); see also
below § 216.
VI
MARITIME BELT
VII
GULFS AND BAYS
VIII
STRAITS
IX
BOUNDARIES OF STATE TERRITORY
Boundary Waters.
§ 199. Natural boundaries consisting of water must be specially discussed
on account of the different kinds of boundary waters. Such kinds are rivers,
lakes, landlocked seas, and the maritime belt.
(1) Boundary rivers[370] are such rivers as separate two different States
from each other.[371] If such river is not navigable, the imaginary boundary
line runs down the middle of the river, following all turnings of the border
line of both banks of the river. On the other hand, in a navigable river the
boundary line runs through the middle of the so-called Thalweg, that is, the
mid-channel of the river. It is, thirdly, possible that the boundary line is the
border line of the river, so that the whole bed belongs to one of the riparian
States only.[372] But this is an exception created by treaty or by the fact that a
State has occupied the lands on one side of a river at a time prior to the
occupation of the lands on the other side by some other State.[373] And it
must be remembered that, since a river sometimes changes its course more
or less, the boundary line running through the middle or the Thalweg or
along the border line is thereby also altered. In case a bridge is built over a
boundary river, the boundary line runs, failing special treaty arrangements,
through the middle of the bridge. As regards the boundary lines running
through islands rising in boundary rivers and through the abandoned beds of
such rivers, see below, §§ 234 and 235.
[370] See Huber in Z.V. I. (1906), pp. 29-52 and 159-217.
[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.
[372] See above, § 175.
[373] See Twiss, I. §§ 147 and 148, and Westlake, I. p. 142.
(2) Boundary lakes and land-locked seas are such as separate the lands of
two or more different States from each other. The boundary line runs
through the middle of these lakes and seas, but as a rule special treaties
portion off such lakes and seas between riparian States.[374]
[374] See above, § 179.
(3) The boundary line of the maritime belt is, according to details given
above (§ 186), uncertain, since no unanimity prevails with regard to the
width of the belt. It is, however, certain that the boundary line runs not
nearer to the shore than three miles, or one marine league, from the low-
water mark.
(4) In a narrow strait separating the lands of two different States the
boundary line runs either through the middle or through the mid-channel,
[375]
unless special treaties make different arrangements.
[375] See Twiss, I. §§ 183 and 184, and above, § 194.
Boundary Mountains.
§ 200. Boundary mountains or hills are such natural elevations from the
common level of the ground as separate the territories of two or more States
from each other. Failing special treaty arrangements, the boundary line runs
on the mountain ridge along with the watershed. But it is quite possible that
boundary mountains belong wholly to one of the States which they
separate.[376]
[376] See Fiore, II. No. 800.
Boundary Disputes.
§ 201. Boundary lines are, for many reasons, of such vital importance
that disputes relating thereto are inevitably very frequent and have often led
to war. During the nineteenth century, however, a tendency began to prevail
to settle such disputes peaceably. The simplest way in which this can be
done is always by a boundary treaty, provided the parties can come to
terms.[377] In other cases arbitration can settle the matter, as, for instance, in
the Alaska Boundary dispute between Great Britain (representing Canada)
and the United States, settled in 1903. Sometimes International
Commissions are specially appointed to settle the boundary lines. In this
way the boundary lines between Turkey, Bulgaria, Servia, Montenegro, and
Roumania were settled after the Berlin Congress of 1878. It sometimes
happens that the States concerned, instead of settling the boundary line,
keep a strip of land between their territories under their joint tenure and
administration, so that a so-called condominium comes into existence, as in
the case of Moresnet (Kelmis) on the Prusso-Belgian frontier.[378]
[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.
[378] See above, § 171, No. 1.
X
STATE SERVITUDES
(a) The former French fishery rights in Newfoundland which were based on article 13 of the
Treaty of Utrecht, 1713, and on the Treaty of Versailles, 1783. See the details regarding the
Newfoundland Fishery Dispute, in Phillimore, I. § 195; Clauss, pp. 17-31; Geffcken in R.I. XXII.
p. 217; Brodhurst in Law Magazine and Review, XXIV. p. 67. The French literature on the
question is quoted in Bonfils, No. 342, note 1. The dispute is now settled by France's renunciation
of the privileges due to her according to article 13 of the Treaty of Utrecht, which took place by
article 1 of the Anglo-French Convention signed in London on April 8, 1904 (see Martens, N.R.G.
2nd Ser. XXXII. (1905), p. 29). But France retains, according to article 2 of the latter Convention,
the right of fishing for her subjects in certain parts of the territorial waters of Newfoundland.
(b) The fishery rights granted by Great Britain to the United States of America in certain parts
of the British North Atlantic Coast by article 1 of the Treaty of 1818 which gave rise to disputes
extending over a long period. The dispute is now settled by an award of the Hague Permanent
Court of Arbitration given in September (1910). That the Court refused to recognise the
conception of State servitudes, was pointed out above, § 203. See above, § 203, and the literature
there quoted.
[388] Phillimore (I. § 283) quotes two interesting State servitudes which belong to the past.
According to articles 4 and 10 of the Treaty of Utrecht, 1713, France was, in the interest of Great
Britain, not to allow the Stuart Pretender to reside on French territory, and Great Britain was, in
the interest of Spain, not to allow Moors and Jews to reside in Gibraltar.
[389] The controverted question whether neutralisation of a State creates a State servitude is
answered by Clauss (p. 167) in the affirmative, but by Ullmann (§ 99), correctly, I think, in the
negative. But a distinction must be drawn between neutralisation of a whole State and
neutralisation of certain parts of a State. In the latter case a State servitude is indeed created.
XI
MODES OF ACQUIRING STATE TERRITORY
Vattel, I. §§ 203-207—Hall, § 31—Westlake, I. pp. 84-116—Lawrence, §§ 74-78—
Phillimore, I. §§ 222-225—Twiss, I. §§ 113-139—Halleck, I. p. 154—Taylor, §§ 217-228
—Wheaton, §§ 161-163—Bluntschli, §§ 278-295—Hartmann, § 61—Heffter, § 69—
Holtzendorff in Holtzendorff, II. pp. 252-255—Gareis, § 76—Liszt, § 10—Ullmann, § 92
—Bonfils, No. 532—Despagnet, No. 378—Pradier-Fodéré, II. Nos. 781-787—Mérignhac,
II. pp. 410-412—Rivier, I. § 12—Nys, II. pp. 1-3—Calvo, I. § 263—Fiore, I. Nos. 838-840
—Martens, I. § 90—Heimburger, "Der Erwerb der Gebietshoheit" (1888).
Subjects of cession.
§ 214. Since cession is a bilateral transaction, it has two subjects—
namely, the ceding and the acquiring State. Both subjects must be States,
and only those cessions in which both subjects are States concern the Law
of Nations. Cessions of territory made to private persons and to
corporations[408] by native tribes or by States outside the dominion of the
Law of Nations do not fall within the sphere of International Law, neither
do cessions of territory by native tribes made to States[409] which are
members of the Family of Nations. On the other hand, cession of territory
made to a member of the Family of Nations by a State as yet outside that
family is real cession and a concern of the Law of Nations, since such State
becomes through the treaty of cession in some respects a member of that
family.[410]
[408] See above, § 209, No. 2.
[409] See below, §§ 221 and 222.
[410] See above, § 103.
Object of cession.
§ 215. The object of cession is sovereignty over such territory as has
hitherto already belonged to another State. As far as the Law of Nations is
concerned, every State as a rule can cede a part of its territory to another
State, or by ceding the whole of its territory can even totally merge in
another State. However, since certain parts of State territory, as for instance
rivers and the maritime belt, are inalienable appurtenances of the land, they
cannot be ceded without a piece of land.[411]
[411] See above, §§ 175 and 185.
The controverted question whether permanently neutralised parts of a not
permanently neutralised State can be ceded to another State must be
answered in the affirmative,[412] although the Powers certainly can exercise
an intervention by right. On the other hand, a permanently neutralised State
could not, except in the case of mere frontier regulation, cede a part of its
neutralised territory to another State without the consent of the Powers.[413]
Nor could a State under suzerainty or protectorate cede a part or the whole
of its territory to a third State without the consent of the superior State.
Thus, the Ionian Islands could not in 1863 have merged in Greece without
the consent of Great Britain, which exercised a protectorate over these
islands.
[412] Thus in 1860 Sardinia ceded her neutralised provinces of Chablais and Faucigny to France.
See above, §207.
[413] See above, § 96, and the literature there quoted.
Form of cession.
§ 216. The only form in which a cession can be effected is an agreement
embodied in a treaty between the ceding and the acquiring State. Such
treaty may be the outcome of peaceable negotiations or of war, and the
cession may be one with or without compensation.
If a cession of territory is the outcome of war, it is the treaty of peace
which stipulates the cession among its other provisions. Such cession is
regularly one without compensation, although certain duties may be
imposed upon the acquiring State, as, for instance, of taking over a part of
the debts of the ceding State corresponding to the extent and importance of
the ceded territory, or that of giving the individuals domiciled on the ceded
territory the option to retain their old citizenship or, at least, to emigrate.
Cessions which are the outcome of peaceable negotiations may be agreed
upon by the interested States from different motives and for different
purposes. Thus Austria, during war with Prussia and Italy in 1866, ceded
Venice to France as a gift, and some weeks afterwards France on her part
ceded Venice to Italy. The Duchy of Courland ceded in 1795 its whole
territory to and voluntarily merged thereby in Russia, in the same way the
then Free Town of Mulhouse merged in France in 1798, the Congo Free
State in Belgium in 1908, and the Empire of Korea in Japan in 1911.
Cessions have in the past often been effected by transactions which are
analogous to transactions in private business life. As long as absolutism was
reigning over Europe, it was not at all rare for territory to be ceded in
marriage contracts or by testamentary dispositions.[414] In the interest of
frontier regulations, but also for other purposes, exchanges of territory
frequently take place. Sale of territory is quite usual; as late as 1868 Russia
sold her territory in America to the United States for 7,200,000 dollars, and
in 1899 Spain sold the Caroline Islands to Germany for 25,000,000 pesetas.
Pledge and lease are also made use of. Thus, the then Republic of Genoa
pledged Corsica to France in 1768, Sweden pledged Wismar to
Mecklenburg in 1803; China[415] leased in 1898 Kiaochau to Germany,[416]
Wei-Hai-Wei and the land opposite the island of Hong Kong to Great
Britain,[417] and Port Arthur to Russia.
[414] Phillimore, I. §§ 274-276, enumerates many examples of such cession. The question
whether the monarch of a State under absolute government could nowadays by a testamentary
disposition cede territory to another State must, I believe, be answered in the affirmative.
[415] See above, § 171, No. 3. Cession may also take place under the disguise of an agreement
according to which territory comes under the "administration" or under the "use, occupation, and
control" of a foreign State. See above, § 171, Nos. 2 and 4.
[416] See Martens, N.R.G. 2nd Ser. XXX. (1904), p. 326.
[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).
[418]How far a succession of States takes place in the case of cession of territory has been
discussed above, § 84.
XIII
OCCUPATION
Conception of Occupation.
§ 220. Occupation is the act of appropriation by a State through which it
intentionally acquires sovereignty over such territory as is at the time not
under the sovereignty of another State. Occupation as a mode of acquisition
differs from subjugation[429] chiefly in so far as the conquered and
afterwards annexed territory has hitherto belonged to another State. Again,
occupation differs from cession in so far as through cession the acquiring
State receives sovereignty over the respective territory from the former
owner State. In contradistinction to cession, which is a derivative mode of
acquisition, occupation is therefore an original mode. And it must be
emphasised that occupation can only take place by and for a State;[430] it
must be a State act, that is, it must be performed in the service of a State, or
it must be acknowledged by a State after its performance.
[429] See below, § 236.
[430] See above, § 209.
Object of Occupation.
§ 221. Only such territory can be the object of occupation as is no State's
land, whether entirely uninhabited, as e.g. an island, or inhabited by natives
whose community is not to be considered as a State. Even civilised
individuals may live and have private property on a territory without any
union by them into a State proper which exercises sovereignty over such
territory. And natives may live on a territory under a tribal organisation
which need not be considered a State proper. But a part or the whole of the
territory of any State, even although such State is entirely outside the
Family of Nations, is not a possible object of occupation, and it can only be
acquired through cession[431] or subjugation. On the other hand, a territory
which belonged at one time to a State but has been afterwards abandoned, is
a possible object for occupation on the part of another State.[432]
[431] See above, § 214.
[432] See below, §§ 228 and 247.
Although the Open Sea is free and is, therefore, not the object of
occupation, the subsoil[433] of the bed of the Open Sea may become the
object of occupation through driving mines and piercing tunnels from the
coast.[434]
[433] See below, §§ 287c and 287d.
[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.
Extent of Occupation.
§ 225. Since an occupation is valid only if effective, it is obvious that the
extent of an occupation ought only to reach over so much territory as is
effectively occupied. In practice, however, the interested States have neither
in the past nor in the present acted in conformity with such a rule; on the
contrary, they have always tried to attribute to their occupation a much
wider area. Thus it has been maintained that an effective occupation of the
land at the mouth of a river is sufficient to bring under the sovereignty of
the occupying State the whole territory through which such river and its
tributaries run up to the very crest of the watershed.[439] Again, it has been
maintained that, when a coast line has been effectively occupied, the extent
of the occupation reaches up to the watershed of all such rivers as empty
into the coast line.[440] And it has, thirdly, been asserted that effective
occupation of a territory extends the sovereignty of the possessor also over
neighbouring territories as far as it is necessary for the integrity, security,
and defence of the really occupied land.[441] But all these and other fanciful
assertions have no basis to rest upon. In truth, no general rule can be laid
down beyond the above, that occupation reaches as far as it is effective.
How far it is effective is a question of the special case. It is obvious that
when the agent of a State takes possession of a territory and makes a
settlement on a certain spot of it, he intends thereby to acquire a vast area
by his occupation. Everything depends, therefore, upon the fact how far
around the settlement or settlements the established responsible authority
that governs the territory in the name of the possessor succeeds in gradually
extending the established sovereignty. The payment of a tribute on the part
of tribes settled far away, the fact that flying columns of the military or the
police sweep, when necessary, remote spots, and many other facts, can
show how far round the settlements the possessor is really able to assert the
established authority. But it will always be difficult to mark exactly in this
way the boundary of an effective occupation, since naturally the tendency
prevails to extend the sway constantly and gradually over a wider area. It is,
therefore, a well-known fact that disputes concerning the boundaries of
occupations can only rarely be decided on the basis of strict law; they must
nearly always be compromised, whether by a treaty or by arbitration.[442]
[439] Claim of the United States in the Oregon Boundary dispute (1827) with Great Britain. See
Twiss, I. §§ 126 and 127, and his "The Oregon Question Examined" (1846); Phillimore, I. § 250;
Hall, § 34.
[440] Claim of the United States in their dispute with Spain concerning the boundary of
Louisiana (1803), approved of by Twiss, I. § 125.
[441] This is the so-called "right of contiguity," approved of by Twiss, I. §§ 124 and 131.
[442] The Institute of International Law, in 1887, at its meeting in Lausanne, adopted a "Projet
de déclaration internationale relatif aux occupations de territoires," comprising ten articles; see
Annuaire, X. p. 201.
Spheres of influence.
§ 227. The uncertainty of the extent of an occupation and the tendency of
every colonising State to extend its occupation constantly and gradually
into the interior, the "Hinterland," of an occupied territory, has led several
States which have colonies in Africa to secure for themselves "spheres of
influence" by international treaties with other interested Powers. Spheres of
influence are therefore the names of such territories as are exclusively
reserved for future occupation on the part of a Power which has effectively
occupied adjoining territories. In this way disputes are avoided for the
future, and the interested Powers can gradually extend their sovereignty
over vast territories without coming into conflict with other Powers. Thus,
to give some examples, Great Britain has concluded treaties regarding
spheres of influence with Portugal[445] in 1890, with Italy[446] in 1891, with
Germany[447] in 1886 and 1890, and with France[448] in 1898.[449]
[445] See Martens, N.R.G. 2nd Ser. XVIII. p. 558.
[446] See Martens, N.R.G. 2nd Ser. XVIII. p. 175.
[447] See Martens, N.R.G. 2nd Ser. XII. p. 298, and XVI. p. 895.
[448] See Martens, N.R.G. 2nd Ser. XXIX. p. 116.
[449] Protectorates and Spheres of Influence are exhaustively treated in Hall, "Foreign Powers
and Jurisdiction of the British Crown," §§ 92-100; but Hall fails to distinguish between
protectorates over Eastern States and protectorates over native tribes.
Consequences of Occupation.
§ 228. As soon as a territory is occupied by a member of the Family of
Nations, it comes within the sphere of the Law of Nations, because it
constitutes a portion of the territory of a subject of International Law. No
other Power can acquire it hereafter through occupation, unless the present
possessor has either intentionally withdrawn from it or has been
successfully driven away by the natives without making efforts, or without
capacity, to re-occupy it.[450] On the other hand, the Power which now
exercises sovereignty over the occupied territory is hereafter responsible for
all events of international importance on the territory. Such Power has in
especial to keep up a certain order among the native tribes in order to
restrain them from acts of violence against neighbouring territories, and has
eventually to punish them for such acts.
[450] See below, § 247.
A question of some importance is how far occupation affects private
property of the inhabitants of the occupied territory. As according to the
modern conception of State territory the latter is not identical with private
property of the State, occupation brings a territory under the sovereignty
only of the occupying State, and therefore in no wise touches or affects
existing private property of the inhabitants. In the age of the discoveries,
occupation was indeed considered to include a title to property over the
whole occupied land, but nowadays this can no longer be maintained. Being
now their sovereign, the occupying State may impose any burdens it likes
on its new subjects, and may, therefore, even confiscate their private
property; but occupation as a mode of acquiring territory does not of itself
touch or affect private property thereon. If the Municipal Law of the
occupying State does give a title to private property over the whole
occupied land, such title is not based on International Law.
XIV
ACCRETION
Conception of Accretion.
§ 229. Accretion is the name for the increase of land through new
formations. Such new formations may be a modification only of the
existing State territory, as, for instance, where an island rises within such
river or a part of it as is totally within the territory of one and the same
State; and in such case there is no increase of territory to correspond with
the increase of land. On the other hand, many new formations occur which
really do enlarge the territory of the State to which they accrue, as, for
instance, where an island rises within the maritime belt. And it is a
customary rule of the Law of Nations that enlargement of territory, if any,
created through new formations, takes place ipso facto by the accretion,
without the State concerned taking any special step for the purpose of
extending its sovereignty. Accretion must, therefore, be considered as a
mode of acquiring territory.
Different kinds of Accretion.
§ 230. New formations through accretion may be artificial or natural.
They are artificial if they are the outcome of human work. They are natural
if they are produced through operation of nature. And within the circle of
natural formations different kinds must again be distinguished—namely,
alluvions, deltas, new-born islands, and abandoned river beds.
Artificial Formations.
§ 231. Artificial formations are embankments, breakwaters, dykes, and
the like, built along the river or the coast-line of the sea. As such artificial
new formations along the bank of a boundary river may more or less push
the volume of water so far as to encroach upon the other bank of the river,
and as no State is allowed to alter the natural condition of its own territory
to the disadvantage[451] of the natural conditions of a neighbouring State
territory, a State cannot build embankments, and the like, of such kind
without a previous agreement with the neighbouring State. But every State
may construct such artificial formations as far into the sea beyond the low-
water mark as it likes, and thereby gain considerably in land and also in
territory, since the extent of the at least three miles wide maritime belt is
now to be measured from the extended shore.
[451] See above, § 127.
Alluvions.
§ 232. Alluvion is the name for an accession of land washed up on the
sea-shore or on a river-bank by the waters. Such accession is as a rule
produced by a slow and gradual process, but sometimes also through a
sudden act of violence, the stream detaching a portion of the soil from one
bank of a river, carrying it over to the other bank, and embedding it there so
as to be immovable (avulsio). Through alluvions the land and also the
territory of a State may be considerably enlarged. For, if the alluvion takes
place on the shore, the extent of the territorial maritime belt is now to be
measured from the extended shore. And, if the alluvion takes place on the
one bank of a boundary river, and the course of the river is thereby naturally
so altered that the waters in consequence cover a part of the other bank, the
boundary line, which runs through the middle or through the mid-channel,
[452]
may thereby be extended into former territory of the other riparian
State.
[452] See above, § 199, No. 1.
Deltas.
§ 233. Similar to alluvions are Deltas. Delta is the name for a tract of
land at the mouth of a river shaped like the Greek letter Δ, 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.
New-born Islands.
§ 234. The same and other natural processes which create alluvions on
the shore and banks, and Deltas at the mouths of rivers, lead to the birth of
new islands. If they rise on the High Seas outside the territorial maritime
belt, they are no State's land, and may be acquired through occupation on
the part of any State. But if they rise in rivers, lakes, and within the
maritime belt, they are, according to the Law of Nations, considered
accretions to the neighbouring land. It is for this reason that such new
islands in boundary rivers as rise within the boundary line of one of the
riparian States accrue to the land of such State, and that, on the other hand,
such islands as rise upon the boundary line are divided into parts by it, the
respective parts accruing to the land of the riparian States concerned. If an
island rises within the territorial maritime belt, it accrues to the land of the
littoral State, and the extent of the maritime belt is now to be measured
from the shore of the new-born island.
An illustrative example is the case[453] of the Anna. In 1805, during war
between Great Britain and Spain, the British privateer Minerva captured the
Spanish vessel Anna near the mouth of the River Mississippi. When brought
before the British Prize Court, the United States claimed the captured vessel
on the ground that she was captured within the American territorial
maritime belt. Lord Stowell gave judgment in favour of this claim, because,
although it appeared that the capture did actually take place more than three
miles off the coast of the continent, the place of capture was within three
miles of some small mud-islands composed of earth and trees drifted down
into the sea.
[453] See 5 C. Rob. 373.
Abandoned Riverbeds.
§ 235. It happens sometimes that a river abandons its bed entirely or dries
up altogether. If such river was a boundary river, the abandoned bed is now
the natural boundary. But often the old boundary line cannot be ascertained,
and in such cases the boundary line is considered to run through the middle
of the abandoned bed, and the portions ipso facto accrue to the land of the
riparian States, although the territory of one of these States may become
thereby enlarged, and that of the other diminished.
XV
SUBJUGATION
Consequences of Subjugation.
§ 240. Although subjugation is an original mode of acquisition, since the
sovereignty of the new acquirer is not derived from that of the former
owner State, the new owner State is nevertheless the successor of the
former owner State as regards many points which have been discussed
above (§ 82). It must be specially mentioned that, as far as the Law of
Nations is concerned, the subjugator does not acquire the private property
of the inhabitants of the annexed territory. Being now their Sovereign, the
subjugating State may indeed impose any burdens it pleases on its new
subjects, it may even confiscate their private property, since a Sovereign
State can do what it likes with its subjects, but subjugation itself does not by
International Law touch or affect private property.
As regards the national status of the subjects of the subjugated State,
doctrine and practice agree that such enemy subjects as are domiciled on
the annexed territory and remain there after annexation become ipso facto
by the subjugation[462] subjects of the subjugator. But the national status of
such enemy subjects as are domiciled abroad and do not return, and further
of such as leave the country before the annexation or immediately
afterwards, is matter of dispute. Some writers maintain that these
individuals do in spite of their absence become subjects of the subjugator,
others emphatically deny it. Whereas the practice of the United States of
America seems to be in conformity with the latter opinion,[463] the practice
of Prussia in 1866 was in conformity with the former. Thus in the case of
Count Platen-Hallermund, a Cabinet Minister of King George V. of
Hanover, who left Hanover with his King before the annexation in 1866 and
was in 1868 prosecuted for high treason before the Supreme Prussian Court
at Berlin, this Court decided that the accused had become a Prussian subject
through the annexation of Hanover.[464] I believe that a distinction must be
made between those individuals who leave the country before and those
who leave it after annexation. The former are not under the sway of the
subjugator at the time of annexation, and, since the personal supremacy of
their home State terminates with the latter's extinction through annexation,
they would seem to be outside the sovereignty of the subjugator. But those
individuals who leave the country after annexation leave it at a time when
they have become subjects of the new Sovereign, and they therefore remain
such subjects even after they have left the country, for there is no rule of the
Law of Nations in existence which obliges a subjugator to grant the
privilege of emigration[465] to the inhabitants of the conquered territory.
[462] See Hall v. Campbell (1774), 1 Cowper 1208, and United States v. Repentigny (1866), 5
Wallace, 211. The case is similar to that of cession: see above, § 219; Keith, "The Theory of State
Succession" (1907), pp. 45 and 48; Moore, III. § 379.
[463] See Halleck, II. p. 476.
[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.
[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.
XVI
PRESCRIPTION
Conception of Prescription.
§ 242. Since the existence of a science of the Law of Nations there has
always been opposition to prescription as a mode of acquiring territory.
Grotius rejected the usucaption of the Roman Law, yet adopted the same
law's immemorial prescription[467] for the Law of Nations. But whereas a
good many writers[468] still defend that standpoint, others[469] reject
prescription altogether. Again, others[470] go beyond Grotius and his
followers and do not require possession from time immemorial, but teach
that an undisturbed continuous possession can under certain conditions
produce a title for the possessor, if the possession has lasted for some length
of time.
[467] See Grotius, II. c. 4, §§ 1, 7, 9.
[468] See, for instance, Heffter, § 12; Martens, § 90.
[469] G. F. Martens, § 71; Klüber, §§ 6 and 125; Holtzendorff, II. p. 255; Ullmann, § 92.
[470] Vattel, II. § 147; Wheaton, § 165; Phillimore, I. § 259; Hall, § 36; Bluntschli, § 290;
Pradier-Fodéré, II. No. 825; Bonfils, No. 534, and many others.
This opinion would indeed seem to be correct, because it recognises
theoretically what actually goes on in practice. There is no doubt that in the
practice of the members of the Family of Nations a State is considered to be
the lawful owner even of those parts of its territory of which originally it
took possession wrongfully and unlawfully, provided only the possessor has
been in undisturbed possession for such a length of time as is necessary to
create the general conviction among the members of the Family of Nations
that the present condition of things is in conformity with international order.
Such prescription cannot be compared with the usucaption of Roman Law
because the latter required bona-fide possession, whereas the Law of
Nations recognises prescription both in cases where the State is in bona-fide
possession and in cases where it is not. The basis of prescription in
International Law is nothing else than general recognition[471] of a fact,
however unlawful in its origin, on the part of the members of the Family of
Nations. And prescription in International Law may therefore be defined as
the acquisition of sovereignty over a territory through continuous and
undisturbed exercise of sovereignty over it during such a period as is
necessary to create under the influence of historical development the
general conviction that the present condition of things is in conformity with
international order. Thus, prescription in International Law has the same
rational basis as prescription in Municipal Law—namely, the creation of
stability of order.
[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.
XVII
LOSS OF STATE TERRITORY
Hall, § 34—Phillimore, I. §§ 284-295—Moore, I. §§ 89 and 90—Holtzendorff in
Holtzendorff, II. pp. 274-279—Gareis, § 70—Liszt, § 10—Ullmann, § 101—Pradier-
Fodéré, II. Nos. 850-852—Rivier, I. § 13—Fiore, II. No. 865—Martens, I. § 92.
Operation of Nature.
§ 245. Operation of nature as a mode of losing corresponds to accretion
as a mode of acquiring territory. Just as through accretion a State may
become enlarged, so it may become diminished through the disappearance
of land and other operations of nature. And the loss of territory through
operation of nature takes place ipso facto by such operation. Thus, if an
island near the shore disappears through volcanic action, the extent of the
maritime territorial belt of the respective littoral State is hereafter to be
measured from the low-water mark of the shore of the continent, instead of
from the shore of the former island. Thus, further, if through a piece of land
being detached by the current of a river from one bank and carried over to
the other bank, the river alters its course and covers now part of the land on
the bank from which such piece became detached, the territory of one of the
riparian States may decrease through the boundary line being ipso facto
transferred to the present middle or mid-channel of the river.
Revolt.
§ 246. Revolt followed by secession is a mode of losing territory to
which no mode of acquisition corresponds.[475] Revolt followed by secession
has, as history teaches, frequently been a cause of loss of territory. Thus the
Netherlands fell away from Spain in 1579, Belgium from the Netherlands in
1830, the United States of America from Great Britain in 1776, Brazil from
Portugal in 1822, the former Spanish South American States from Spain in
1810, Greece from Turkey in 1830, Cuba from Spain in 1898, Panama from
Colombia in 1903. The question at what time a loss of territory through
revolt is consummated cannot be answered once for all, since no hard-and-
fast rule can be laid down regarding the time when it can be said that a State
broken off from another has established itself safely and permanently. The
matter has, as will be remembered, been treated above (§ 74), in connection
with recognition. It may well happen that, although such a seceded State is
already recognised by a third Power, the mother country does not consider
the territory to be lost and succeeds in reconquering it.
[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.
Dereliction.
§ 247. Dereliction as a mode of losing corresponds to occupation as a
mode of acquiring territory. Dereliction frees a territory from the
sovereignty of the present owner State. Dereliction is effected through the
owner State's complete abandonment of the territory with the intention of
withdrawing from it for ever, thus relinquishing sovereignty over it. Just as
occupation[476] requires, first, the actual taking into possession (corpus) of
territory and, secondly, the intention (animus) to acquire sovereignty over it,
so dereliction requires, first, actual abandonment of a territory, and,
secondly, the intention to give up sovereignty over it. Actual abandonment
alone does not involve dereliction as long as it must be presumed that the
owner has the will and ability to retake possession of the territory. Thus, for
instance, if the rising of natives forces a State to withdraw from a territory,
such territory is not derelict as long as the former possessor is able and
makes efforts to retake possession. It is only when a territory is really
derelict that any State may acquire it through occupation.[477] History knows
of several such cases. But very often, when such occupation of derelict
territory occurs, the former owner protests and tries to prevent the new
occupier from acquiring it. The cases of the island of Santa Lucia and of the
Delagoa Bay may be quoted as illustrations:—
[476] See above, § 222.
[477] See above, § 228.
(a) In 1639 Santa Lucia, one of the Antilles Islands, was occupied by
England, but in the following year the English settlers were massacred by
the natives. No attempt was made by England to retake the island, and
France, considering it no man's land, took possession of it in 1650. In 1664
an English force under Lord Willoughby attacked the French, drove them
into the mountains, and held the island until 1667, when the English
withdrew and the French returned from the mountains. No further step was
made by England to retake the island, but she nevertheless asserted for
many years to come that she had not abandoned it sine spe redeundi, and
that, therefore, France in 1650 had no right to consider it no man's land.
Finally, however, England resigned her claims by the Peace Treaty of Paris
of 1763.[478]
[478] See Hall, § 34, and Moore, I. § 89.
(b) In 1823 England occupied, in consequence of a so-called cession
from native chiefs, a piece of territory at Delagoa Bay, which Portugal
claimed as part of the territory owned by her at the bay, maintaining that the
chiefs concerned were rebels. The dispute was not settled until 1875, when
the case was submitted to the arbitration of the President of France. The
award was given in favour of Portugal, since the interruption of the
Portuguese occupation in 1823 was not to be considered as abandonment of
a territory over which Portugal had exercised sovereignty for nearly three
hundred years.[479]
[479] See Hall, § 34. The text of the award is printed in Moore, "Arbitrations," V. p. 4984.
CHAPTER II
THE OPEN SEA
I
RISE OF THE FREEDOM OF THE OPEN SEA
These claims have been more or less successfully asserted for several
hundreds of years. They were favoured by a number of different
circumstances, such as the maintenance of an effective protection against
piracy for instance. And numerous examples can be adduced which show
that such claims have more or less been recognised. Thus, Frederick III.,
Emperor of Germany, had in 1478 to ask the permission of Venice for a
transportation of corn from Apulia through the Adriatic Sea.[483] Thus, Great
Britain in the seventeenth century compelled foreigners to take out an
English licence for fishing in the North Sea; and when in 1636 the Dutch
attempted to fish without such licence, they were attacked and compelled to
pay £30,000 as the price for the indulgence.[484] Again, when Philip II. of
Spain was in 1554 on his way to England to marry Queen Mary, the British
Admiral, who met him in the "British Seas," fired on his ship for flying the
Spanish flag. And the King of Denmark, when returning from a visit to
James I. in 1606, was forced by a British captain, who met him off the
mouth of the Thames, to strike the Danish flag.
[483] See Walker, "History," I. p. 163.
[484] This and the two following examples are quoted by Hall, § 40.
Practical Expression of claims to Maritime Sovereignty.
§ 249. Maritime sovereignty found expression in maritime ceremonials at
least. Such State as claimed sovereignty over a part of the Open Sea
required foreign vessels navigating on that part to honour its flag[485] as a
symbol of recognition of its sovereignty. So late as 1805 the British
Admiralty Regulations contained an order[486] to the effect that "when any of
His Majesty's ships shall meet with the ships of any foreign Power within
His Majesty's Seas (which extend to Cape Finisterre), it is expected that the
said foreign ships do strike their topsail and take in their flag, in
acknowledgment of His Majesty's sovereignty in those seas; and if any do
resist, all flag officers and commanders are to use their utmost endeavours
to compel them thereto, and not suffer any dishonour to be done to His
Majesty."
[485] See Fulton, "The Sovereignty of the Seas" (1911), pp. 38 and 204-208.
[486] Quoted by Hall, § 40.
But apart from maritime ceremonials maritime sovereignty found
expression in the levying of tolls from foreign ships, in the interdiction of
fisheries to foreigners, and in the control or even the prohibition of foreign
navigation. Thus, Portugal and Spain attempted, after the discovery of
America, to keep foreign vessels altogether out of the seas over which they
claimed sovereignty. The magnitude of this claim created an opposition to
the very existence of such rights. English, French, and Dutch explorers and
traders navigated on the Indian Ocean and the Pacific in spite of the Spanish
and Portuguese interdictions. And when, in 1580, the Spanish ambassador
Mendoza lodged a complaint with Queen Elizabeth against Drake for
having made his famous voyage to the Pacific, Elizabeth answered that
vessels of all nations could navigate on the Pacific, since the use of the sea
and the air is common to all, and that no title to the ocean can belong to any
nation, since neither nature nor regard for the public use permits any
possession of the ocean.[487]
[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.
III
THE FREEDOM OF THE OPEN SEA
IV
JURISDICTION ON THE OPEN SEA
Ship Papers.
§ 262. All States with a maritime flag are by the Law of Nations obliged
to make private vessels sailing under their flags carry on board so-called
ship papers, which serve the purpose of identification on the Open Sea. But
neither the number nor the kind of such papers is prescribed by
International Law, and the Municipal Laws of the different States differ
much on this subject.[522] But, on the other hand, they agree as to the
following papers:—
[522]
See Holland, "Manual of Naval Prize Law," §§ 178-194, where the papers required by the
different maritime States are enumerated.
(1) An official voucher authorising the vessel to sail under its flag. This
voucher consists of a Certificate of Registry, in case the flag State
possesses, like Great Britain and Germany for instance, a register of its
mercantile marine; in other cases the voucher consists of a "Passport," "Sea-
letter," "Sea-brief," or of some other document serving the purpose of
showing the vessel's nationality.
(2) The Muster Roll. This is a list of all the members of the crew, their
nationality, and the like.
(3) The Log Book. This is a full record of the voyage, with all nautical
details.
(4) The Manifest of Cargo. This is a list of the cargo of a vessel, with
details concerning the number and the mark of each package, the names of
the shippers and the consignees, and the like.
(5) The Bills of Lading. These are duplicates of the documents which the
master of the vessel hands over to the shipper of the goods at shipment.
(6) The Charter Party, if the vessel is chartered. This is the contract
between the owner of the ship, who lets it wholly or in part, and the
charterer, the person who hires it.
Names of Vessels.
§ 263. Every State must register the names of all private vessels sailing
under its flag, and it must make them bear their names visibly, so that every
vessel may be identified from a distance. No vessel must be allowed to
change her name without permission and fresh registration.[523]
[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.
V
PIRACY
Conception of Piracy.
§ 272. Piracy, in its original and strict meaning, is every unauthorised act
of violence committed by a private vessel on the Open Sea against another
vessel with intent to plunder (animo furandi). The majority of writers
confine piracy to such acts, which indeed are the normal cases of piracy.
But there are cases possible which are not covered by this narrow
definition, and yet they are practically treated as though they were cases of
piracy. Thus, if the members of the crew revolt and convert the ship and the
goods thereon to their own use, they are considered to be pirates, although
they have not committed an act of violence against another ship. Thus,
secondly, if unauthorised acts of violence, such as murder of persons on
board the attacked vessel or destruction of goods thereon, are committed on
the Open Sea without intent to plunder, such acts are practically considered
to be piratical. Under these circumstances several writers,[550] correctly, I
think, oppose the usual definition of piracy as an act of violence committed
by a private vessel against another with intent to plunder. But no unanimity
exists among these very writers concerning a fit definition of piracy, and the
matter is therefore very controversial. If a definition is desired which really
covers all such acts as are practically treated as piratical, piracy must be
defined as every unauthorised act of violence against persons or goods
committed on the Open Sea either by a private vessel against another vessel
or by the mutinous crew or passengers against their own vessel.[551]
[550]
Hall, § 81; Lawrence, § 102; Bluntschli, § 343; Liszt, § 26; Calvo, § 485.
[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.
[552] See above, § 151.
VI
FISHERIES IN THE OPEN SEA
VII
TELEGRAPH CABLES IN THE OPEN SEA
Bonfils, No. 583—Despagnet, No. 401—Pradier-Fodéré, V. No. 2548—Mérignhac, II. p. 532
—Nys, II. p. 170—Rivier, I. pp. 244 and 386—Fiore, II. No. 822, and Code, Nos. 1134-
1137—Stoerk in Holtzendorff, II. pp. 507-508—Liszt, § 29—Ullmann, § 103—Lauterbach,
"Die Beschädigung unterseeischer Telegraphenkabel" (1889)—Landois, "Zur Lehre vom
völkerrechtlichen Schutz der submarinen Telegraphenkabel" (1894)—Jouhannaud, "Les
câbles sous-marins" (1904)—Renault, in R.I. XII. (1880), p. 251, XV. (1883), p. 17. See
also the literature quoted below, vol. II., at the commencement of § 214.
VIII
WIRELESS TELEGRAPHY ON THE OPEN SEA
IX
THE SUBSOIL BENEATH THE SEA BED
(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.
The proposed Channel Tunnel.
§ 287d. 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:—
[594] See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G. XV. (1908), pp. 50-77; and
Liszt, § 26.
[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.
[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
II
NATIONALITY
Conception of Nationality.
§ 293. Nationality of an individual is his quality of being a subject of a
certain State and therefore its citizen. It is not for International but for
Municipal Law to determine who is and who is not to be considered a
subject. And therefore it matters not, as far as the Law of Nations is
concerned, that Municipal Laws may distinguish between different kinds of
subjects—for instance, those who enjoy full political rights and are on that
account named citizens, and those who are less favoured and are on that
account not named citizens. Nor does it matter that according to the
Municipal Laws a person may be a subject of a part of a State, for instance
of a colony, but not a subject of the mother-country, provided only such
person appears as a subject of the mother-country as far as the latter's
international relations are concerned. Thus, a person naturalised in a British
Colony is for all international purposes a British subject, although he may
not have the rights of a British subject within the United Kingdom itself.[611]
For all international purposes, all distinctions made by Municipal Laws
between subjects and citizens and between different kinds of subjects have
neither theoretical nor practical value, and the terms "subject" and "citizen"
are, therefore, synonymously made use of in the theory and practice of
International Law.
[611] See below, § 307, and Hall, "Foreign Powers and Jurisdiction," § 20, who quotes, however,
a decision of the French Cour de Cassation according to which naturalisation in a British Colony
does not constitute a real naturalisation. But this decision is based on the Code Civil of France and
has nothing to do with the Law of Nations. See also Westlake, I. pp. 231-233.
But it must be emphasised that nationality as citizenship of a certain State
must not be confounded with nationality as membership of a certain nation
in the sense of a race. Thus, all Englishmen, Scotchmen, and Irishmen are,
despite their different nationality as regards their race, of British nationality
as regards their citizenship. Thus, further, although all Polish individuals
are of Polish nationality qua race, they have been, since the partition of
Poland at the end of the eighteenth century between Russia, Austria, and
Prussia, either of Russian, Austrian, or German nationality qua citizenship.
Function of Nationality.
§ 294. It will be remembered that nationality is the link between
individuals and the benefits of the Law of Nations.[612] This function of
nationality becomes apparent with regard to individuals abroad, or property
abroad of individuals who themselves are within the territory of their home
State. Through one particular right and one particular duty of every State
towards all other States this function of nationality becomes most
conspicuous. The right is that of protection over its citizens abroad which
every State holds and occasionally vigorously exercises towards other
States; it will be discussed in detail below, § 319. The duty, on the other
hand, is that of receiving on its territory such citizens as are not allowed to
remain[613] on the territory of other States. Since no State is obliged by the
Law of Nations to allow foreigners to remain within its boundaries, it may,
for many reasons, happen that certain individuals are expelled from all
foreign countries. The home State of those expelled cannot refuse to receive
them on the home territory, the expelling States having a claim on the home
State that the latter do receive the expelled individuals.[614]
[612] See above, § 291.
[613] See below, § 326.
[614] Beyond the right of protection and the duty to receive expelled citizens at home, the
powers of a State over its citizens abroad in consequence of its personal supremacy illustrate the
function of nationality. (See above, § 124.) Thus, the home State can tax citizens living abroad in
the interest of home finance, can request them to come home for the purpose of rendering military
service, can punish them for crimes committed abroad, can categorically request them to come
home for good (so-called jus avocandi). And no State has a right forcibly to retain foreign citizens
called home by their home State, or to prevent them from paying taxes to their home State, and the
like.
III
MODES OF ACQUIRING AND LOSING NATIONALITY
IV
NATURALISATION IN ESPECIAL
Object of Naturalisation.
§ 304. The object of naturalisation is always an alien. Some States will
naturalise such aliens only as are stateless because they never have been
citizens of another State or because they have renounced, or have been
released from or deprived of, the citizenship of their home State. But other
States, as Great Britain, naturalise also such aliens as are and remain
subjects of their home State. Most States naturalise such person only as has
taken his domicile in their country, has been residing there for some length
of time, and intends permanently to remain in their country. And according
to the Municipal Law of many States, naturalisation of a married individual
includes that of his wife and children under age. But although every alien
may be naturalised, no alien has, according to the Municipal Law of most
States, a claim to become naturalised, naturalisation being a matter of
discretion of the Government, which can refuse it without giving any
reasons.
Conditions of Naturalisation.
§ 305. If granted, naturalisation makes an alien a citizen. But it is left to
the discretion of the naturalising State to grant naturalisation under any
conditions it likes. Thus, for example, Great Britain grants naturalisation on
the sole condition that the naturalised alien shall not be deemed to be a
British subject when within the limits of the foreign State of which he has
been a subject previously to his naturalisation, unless at the time of
naturalisation he has ceased to be a subject of that State. And it must be
specially mentioned that naturalisation need not give an alien absolutely the
same rights as are possessed by natural-born citizens. Thus according to
article 2 of the Constitution of the United States of America a naturalised
alien can never be elected President.[626]
[626] A foreigner naturalised in Great Britain by Letters of Denization does not acquire the same
rights as a natural-born British subject. See Hall, "Foreign Powers and Jurisdiction" (1894), § 22.
V
DOUBLE AND ABSENT NATIONALITY
VI
RECEPTION OF ALIENS AND RIGHT OF ASYLUM
VII
POSITION OF ALIENS AFTER RECEPTION
VIII
EXPULSION OF ALIENS
IX
EXTRADITION
Extraditable Crimes.
§ 331. Unless a State is restricted by an extradition law, it can grant
extradition for any crime it thinks fit. And unless a State is bound by an
extradition treaty, it can refuse extradition for any crime. Such States as
possess extradition laws frame their extradition treaties conformably
therewith and specify in those treaties all those crimes for which they are
willing to grant extradition. And no person is to be extradited whose deed is
not a crime according to the Criminal Law of the State which is asked to
extradite, as well as of the State which demands extradition. As regards
Great Britain, the following are extraditable crimes according to the
Extradition Act of 1870:—Murder and manslaughter; counterfeiting and
uttering counterfeit money; forgery and uttering what is forged;
embezzlement and larceny; obtaining goods or money by false pretences;
crimes by bankrupts against bankruptcy laws; fraud by a bailee, banker,
agent, factor, trustee, or by a director, or member, or public officer of any
company; rape; abduction; child stealing; burglary and housebreaking;
arson; robbery with violence; threats with intent to extort; piracy by the
Law of Nations; sinking or destroying a vessel at sea; assaults on board ship
on the High Seas with intent to destroy life or to do grievous bodily harm;
revolt or conspiracy against the authority of the master on board a ship on
the High Seas. The Extradition Acts of 1873 and 1906 added the following
crimes to the list:—Kidnapping, false imprisonment, perjury, subornation of
perjury, and bribery.
Political criminals are, as a rule, not extradited,[678] and according to many
extradition treaties military deserters and such persons as have committed
offences against religion are likewise excluded from extradition.
[678] See below, §§ 333-340.
Effectuation and Condition of Extradition.
§ 332. Extradition is granted only if asked for, and after the formalities
have taken place which are stipulated in the treaties of extradition and the
extradition laws, if any. It is effected through handing over the criminal by
the police of the extraditing State to the police of the prosecuting State. But
it must be emphasised that, according to most extradition treaties, it is a
condition that the extradited individual shall be tried and punished for those
crimes exclusively for which his extradition has been asked and granted, or
for those at least which the extradition treaty concerned enumerates.[679] If,
nevertheless, an extradited individual is tried and punished for another
crime, the extraditing State has a right of intervention.[680]
[679] See Mettgenberg in the "Zeitschrift für internationales Recht," XVIII. (1908), pp. 425-430.
[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.
[681] See Hamelin, "L'Affaire Savarkar" (Extrait du "Recueil général de Jurisprudence, de
Doctrine et de Législation coloniales," 1911), who defends the French view. The award of the
Court of Arbitration has been severely criticised by Baty in the Law Magazine and Review,
XXXVI. (1911), pp. 326-330; Kohler in Z.V. V. (1911), pp. 202-211; Strupp, "Zwei praktische
Fälle aus dem Völkerrecht" (1911), pp. 12-26; Robin in R.G. XVIII. (1911), pp. 303-352; Hamel
in R.I. 2nd Ser. XIII. (1911), pp. 370-403.
X
PRINCIPLE OF NON-EXTRADITION OF POLITICAL CRIMINALS
I
POSITION OF HEADS OF STATES ACCORDING TO INTERNATIONAL LAW
II
MONARCHS
Sovereignty of Monarchs.
§ 346. In every monarchy the monarch appears as the representative of
the sovereignty of the State and thereby becomes a Sovereign himself, a
fact which is recognised by International Law. And the difference between
the Municipal Laws of the different States regarding this point matters in no
way. Consequently, International Law recognises all monarchs as equally
sovereign, although the difference between the constitutional positions of
monarchs is enormous, if looked upon in the light of the rules laid down by
the Constitutional Laws of the different States. Thus, the Emperor of
Russia, whose powers are very wide, and the King of England, who is
sovereign in Parliament only, and whose powers are therefore very much
restricted, are indifferently sovereign according to International Law.
Consideration due to Monarchs at home.
§ 347. Not much need be said as regards the consideration due to a
monarch from other States when within the boundaries of his own State.
Foreign States have to give him his usual and recognised predicates[703] in
all official communications. Every monarch must be treated as a peer of
other monarchs, whatever difference in title and actual power there may be
between them.
[703] Details as regards the predicates of monarchs are given above, § 119.
III
PRESIDENTS OF REPUBLICS
IV
FOREIGN OFFICES
CHAPTER II
DIPLOMATIC ENVOYS
I
THE INSTITUTION OF LEGATION
Development of Legations.
§ 358. Legation as an institution for the purpose of negotiating between
different States is as old as history, whose records are full of examples of
legations sent and received by the oldest nations. And it is remarkable that
even in antiquity, where no such law as the modern International Law was
known, ambassadors enjoyed everywhere a special protection and certain
privileges, although not by law but by religion, ambassadors being looked
upon as sacrosanct. Yet permanent legations were unknown till very late in
the Middle Ages. The fact that the Popes had permanent representatives—
so-called apocrisiarii or responsales—at the Court of the Frankish Kings
and at Constantinople until the final separation of the Eastern from the
Western Church, ought not to be considered as the first example of
permanent legations, as the task of these papal representatives had nothing
to do with international affairs, but with those of the Church only. It was not
until the thirteenth century that the first permanent legations made their
appearance. The Italian Republics, and Venice in especial, created the
example[713] by keeping representatives stationed at one another's capitals
for the better negotiation of their international affairs. And in the fifteenth
century these Republics began to keep permanent representatives in Spain,
Germany, France, and England. Other States followed the example. Special
treaties were often concluded stipulating permanent legations, such as in
1520, for instance, between the King of England and the Emperor of
Germany. From the end of the fifteenth century England, France, Spain, and
Germany kept up permanent legations at one another's Courts. But it was
not until the second half of the seventeenth century that permanent legations
became a general institution, the Powers following the example of France
under Louis XIV. and Richelieu. It ought to be specially mentioned that
Grotius[714] thought permanent legations to be wholly unnecessary. The
course of events has, however, shown that Grotius's views as regards
permanent legations were short-sighted. Nowadays the Family of Nations
could not exist without them, as they are the channel through which nearly
the whole, and certainly all important, official intercourse of the States
flows.
[713] See Nys, "Les Origines du droit international" (1894), p. 295.
[714] "De jure belli ac pacis," II. c. 28, § 3: "Optimo autem jure rejici possunt, quae nunc in usu
sunt, legationes assiduae, quibus cum non sit opus, docet mos antiquus, cui illae ignoratae."
Diplomacy.
§ 359. The rise of permanent legations created the necessity for a new
class of State officials, the so-called diplomatists; yet it was not until the
end of the eighteenth century that the terms "diplomatist" and "diplomacy"
came into general use. And although the art of diplomacy is as old as
official intercourse between States, such a special class of officials as are
now called diplomatists did not and could not exist until permanent
legations had become a general institution. In this as in other cases the
office has created the class of men necessary for it. International Law has
nothing to do with the education and general character of these officials.
Every State is naturally competent to create its own rules, if any, as regards
these points. Nor has International Law anything to do with diplomatic
usages, although these are more or less of importance, as they may
occasionally grow into customary rules of International Law. But I would
notice one of these usages—namely, that as regards the language which is
in use in diplomatic intercourse. This language was formerly Latin, but
through the political ascendency of France under Louis XIV. it became
French. However, this is a usage of diplomacy only, and not a rule of
International Law.[715] Each State can use its own language in all official
communications to other States, and States which have the same language
regularly do so in their intercourse with each other. But between States of
different tongues and, further, at Conferences and Congresses, it is
convenient to make use of a language which is generally known. This is
nowadays French, but nothing could prevent diplomatists from dropping
French at any moment and adopting another language instead.
[715] See Mirus, "Das europäische Gesandtschaftsrecht," I. §§ 266-268.
II
RIGHT OF LEGATION
III
KINDS AND CLASSES OF DIPLOMATIC ENVOYS
IV
APPOINTMENT OF DIPLOMATIC ENVOYS
V
RECEPTION OF DIPLOMATIC ENVOYS
VI
FUNCTIONS OF DIPLOMATIC ENVOYS
Miscellaneous Functions.
§ 382. Negotiation, observation, and protection are tasks common to all
diplomatic envoys of every State. But a State may order its permanent
envoys to perform other tasks, such as the registration of deaths, births, and
marriages of subjects of the home State, legalisation of their signatures,
making out of passports for them, and the like. But in doing this a State
must be careful not to order its envoys to perform such tasks as are by the
law of the receiving State exclusively reserved to its own officials. Thus, for
instance, a State whose laws compel persons who intend marriage to
conclude it in presence of its registrars, need not allow a foreign envoy to
legalise a marriage of compatriots before its registration by the official
registrar. So, too, a State need not allow a foreign envoy to perform an act
which is reserved for its jurisdiction, as, for instance, the examination of
witnesses on oath.
Envoys not to interfere in Internal Politics.
§ 383. But it must be specially emphasised that envoys must not interfere
with the internal political life of the State to which they are accredited. It
certainly belongs to their functions to watch the political events and the
political parties with a vigilant eye and to report their observations to their
home States. But they have no right whatever to take part in that political
life itself, to encourage a certain political party, or to threaten another. If
nevertheless they do so, they abuse their position. And it matters not
whether an envoy acts thus on his own account or on instructions from his
home State. No strong self-respecting State will allow a foreign envoy to
exercise such interference, but will either request his home State to recall
him and appoint another individual in his place or, in case his interference is
very flagrant, hand him his passports and therewith dismiss him. History
records many instances of this kind,[730] although in many cases it is
doubtful whether the envoy concerned really abused his office for the
purpose of interfering with internal politics.
[730]See Hall (§ 98**), Taylor (§ 322), and Moore (IV. § 640), who discuss a number of cases,
especially that of Lord Sackville, who received his passports in 1888 from the United States of
America for an alleged interference in the Presidential election.
VII
POSITION OF DIPLOMATIC ENVOYS
Diplomatic Envoys objects of International Law.
§ 384. Diplomatic envoys are just as little subjects of International Law
as are heads of States; and the arguments regarding the position of such
heads[731] must also be applied to the position of diplomatic envoys, which is
given to them by International Law not as individuals but as representative
agents of their States. It is derived, not from personal rights, but from rights
and duties of their home States and the receiving States. All the privileges
which according to International Law are possessed by diplomatic envoys
are not rights given to them by International Law, but rights given by the
Municipal Law of the receiving States in compliance with an international
right of their home States. For International Law gives a right to every State
to demand for its diplomatic envoys certain privileges from the Municipal
Law of a foreign State. Thus, a diplomatic envoy is not a subject but an
object of International Law, and is in this regard like any other individual.
[731] See above, § 344.
Limitation of Inviolability.
§ 388. As diplomatic envoys are sacrosanct, the principle of their
inviolability is generally recognised. But there is one exception. For if a
diplomatic envoy commits an act of violence which disturbs the internal
order of the receiving State in such a manner as makes it necessary to put
him under restraint for the purpose of preventing similar acts, or in case he
conspires against the receiving State and the conspiracy can be made futile
only by putting him under restraint, he may be arrested for the time being,
although he must in due time be safely sent home. Thus in 1717 the
Swedish Ambassador Gyllenburg in London, who was an accomplice in a
plot against King George I., was arrested and his papers were searched. In
1718 the Spanish Ambassador Prince Cellamare in France was placed in
custody because he organised a conspiracy against the French Government.
[740]
And it must be emphasised that a diplomatic envoy cannot make it a
point of complaint if injured in consequence of his own unjustifiable
behaviour, as for instance in attacking an individual who in self-defence
retaliates, or in unreasonably or wilfully placing himself in dangerous or
awkward positions, such as in a disorderly crowd.[741]
[740]Details regarding these cases are given by Phillimore, II. §§ 166 and 170.
[741]See article 6 of the rules regarding diplomatic immunities adopted by the Institute of
International Law at its meeting at Cambridge in 1895 (Annuaire, XIV. p. 240).
IX
EXTERRITORIALITY OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 80-119—Hall, §§ 50, 52, 53—Westlake, I. pp. 263-273—Phillimore, II. §§ 176-
210—Taylor, §§ 299-315—Twiss, I. §§ 217-221—Moore, II. §§ 291-304 and IV. §§ 660-
669—Ullmann, § 50—Geffcken in Holtzendorff, III. pp. 654-659—Nys, II. pp. 353-385—
Rivier, I. 38—Bonfils, Nos. 700-721—Pradier-Fodéré, III. §§ 1396-1495—Mérignhac, II.
pp. 249-293—Fiore, II. Nos. 1145-1163—Calvo, III. §§ 1499-1531—Martens, II. §§ 12-14
—Gottschalck, "Die Exterritorialität der Gesandten" (1878)—Heyking, "L'exterritorialité"
(1889)—Odier, "Des privilèges et immunités des agents diplomatiques" (1890)—Vercamer,
"Des franchises diplomatiques et spécialement de l'exterritorialité" (1891)—Droin,
"L'exterritorialité des agents diplomatiques" (1895)—Mirre, "Die Stellung der
völkerrechtlichen Literatur zur Lehre von den sogenannten Nebenrechten der
gesandschaftlichen Functionäre" (1904).
Immunity of Domicile.
§ 390. The first of these privileges is immunity of domicile, the so-called
Franchise de l'hôtel. The present immunity of domicile has developed from
the former condition of things, when the official residences of envoys were
in every point considered to be outside the territory of the receiving States,
and when this exterritoriality was in many cases even extended to the whole
quarter of the town in which such a residence was situated. One used then
to speak of a Franchise du quartier or the Jus quarteriorum. And an
inference from this Franchise du quartier was the so-called right of asylum,
envoys claiming the right to grant asylum within the boundaries of their
residential quarters to every individual who took refuge there.[743] But
already in the seventeenth century most States opposed this Franchise du
quartier, and it totally disappeared in the eighteenth century, leaving
behind, however, the claim of envoys to grant asylum within their official
residences. Thus, when in 1726 the Duke of Ripperda, first Minister to
Philip V. of Spain, who was accused of high treason and had taken refuge in
the residence of the English Ambassador in Madrid, was forcibly arrested
there by order of the Spanish Government, the British Government
complained of this act as a violation of International Law.[744] Twenty-one
years later, in 1747, a similar case occurred in Sweden. A merchant named
Springer was accused of high treason and took refuge in the house of the
English Ambassador at Stockholm. On the refusal of the English envoy to
surrender Springer, the Swedish Government surrounded the embassy with
troops and ordered the carriage of the envoy, when leaving the embassy, to
be followed by mounted soldiers. At last Springer was handed over to the
Swedish Government under protest, but England complained and called
back her ambassador, as Sweden refused to make the required reparation.
[745]
As these two examples show, the right of asylum, although claimed and
often conceded, was nevertheless not universally recognised. During the
nineteenth century all remains of it vanished, and when in 1867 the French
envoy in Lima claimed it, the Peruvian Government refused to concede it.
[746]
[743] Although this right of asylum was certainly recognised by the States in former centuries, it
is of interest to note that Grotius did not consider it postulated by International Law, for he says of
this right (II. c. 18, § 8): "Ex concessione pendet ejus apud quem agit. Istud enim juris gentium
non est." See also Bynkershoek, "De foro legat." c. 21.
[744] See Martens, "Causes Célèbres," I. p. 178.
[745] See Martens, "Causes Célèbres," II. p. 52.
[746] The South American States, Chili excepted, still grant the right to foreign envoys to afford
asylum to political refugees in time of revolution. It is, however, acknowledged that this right is
not based upon a rule of International Law, but merely upon local usage. See Hall, § 52; Westlake,
I. p. 272; Moore, II. §§ 291-304; Chilbert in A.J. III. (1909), pp. 562-595; Robbin in R.G. XV.
(1908), pp. 461-508; Moore, "Asylum in Legations and Consulates, and in Vessels" (1892). That
actually in times of revolution and of persecution of certain classes of the population asylum is
occasionally granted to refugees and respected by the local authorities, there is no doubt, but this
occasional practice does not shake the validity of the general rule of International Law according
to which there is no obligation on the part of the receiving State to grant to envoys the right of
affording asylum to individuals not belonging to their suites. See, however, Moore, II. § 293.
Nowadays the official residences of envoys are in a sense and in some
respects only considered as though they were outside the territory of the
receiving States. For the immunity of domicile granted to diplomatic
envoys comprises the inaccessibility of these residences to officers of
justice, police, or revenue, and the like, of the receiving States without the
special consent of the respective envoys. Therefore, no act of jurisdiction or
administration of the receiving Governments can take place within these
residences, except by special permission of the envoys. And the stables and
carriages of envoys are considered to be parts of their residences. But such
immunity of domicile is granted only in so far as it is necessary for the
independence and inviolability of envoys and the inviolability of their
official documents and archives. If an envoy abuses this immunity, the
receiving Government need not bear it passively. There is, therefore, no
obligation on the part of the receiving State to grant an envoy the right of
affording asylum to criminals or to other individuals not belonging to his
suite. Of course, an envoy need not deny entrance to criminals who want to
take refuge in the embassy. But he must surrender them to the prosecuting
Government at its request, and, if he refuses, any measures may be taken to
induce him to do so, apart from such as would involve an attack on his
person. Thus, the embassy may be surrounded by soldiers, and eventually
the criminal may even forcibly be taken out of the embassy. But such
measures of force are justifiable only if the case is an urgent one, and after
the envoy has in vain been required to surrender the criminal. Further, if a
crime is committed inside the house of an envoy by an individual who does
not enjoy personally the privilege of exterritoriality, the criminal must be
surrendered to the local Government. The case of Nikitschenkow, which
occurred in Paris in 1867, is an instance thereof. Nikitschenkow, a Russian
subject not belonging to the Russian Legation, made an attempt on and
wounded a member of that legation within the precincts of the embassy.
The French police were called in and arrested the criminal. The Russian
Government required his extradition, maintaining that, as the crime was
committed inside the Russian Embassy, it fell exclusively under Russian
jurisdiction; but the French Government refused extradition and Russia
dropped her claim.
Again, an envoy has no right to seize a subject of his home State who is
within the boundaries of the receiving State and keep him under arrest
inside the embassy with the intention of bringing him away into the power
of his home State. An instance thereof is the case of the Chinaman Sun Yat
Sen which occurred in London in 1896. This was a political refugee from
China living in London. He was induced to enter the house of the Chinese
Legation and kept under arrest there in order to be conveyed forcibly to
China, the Chinese envoy contending that, as the house of the legation was
Chinese territory, the English Government had no right to interfere. But the
latter did interfere, and Sun Yat Sen was released after several days.
As a contrast to this case may be mentioned that of Kalkstein which
occurred on the Continent in 1670. Colonel von Kalkstein, a Prussian
subject, had fled to Poland for political reasons since he was accused of
high treason against the Prussian Government. Now Frederic William, the
great Elector of Brandenburg, ordered his diplomatic envoy at Warsaw, the
capital of Poland, to obtain possession of the person of Kalkstein. On
November 28, 1670, this order was carried out. Kalkstein was secretly
seized, and, wrapped up in a carpet, was carried across the frontier. He was
afterwards executed at Memel.
Right of Chapel.
§ 395. A sixth privilege of envoys in reference to their exterritoriality is
the so-called Right of Chapel (Droit de chapelle or Droit du culte). This is
the privilege of having a private chapel for the practice of his own religion,
which must be granted to an envoy by the Municipal Law of the receiving
State. A privilege of great worth in former times, when freedom of religious
worship was unknown in most States, it has at present an historical value
only. But it has not disappeared, and might become again of actual
importance in case a State should in the future give way to reactionary
intolerance. It must, however, be emphasised that the right of chapel must
only comprise the privilege of religious worship in a private chapel inside
the official residence of the envoy. No right of having and tolling bells need
be granted. The privilege includes the office of a chaplain, who must be
allowed to perform every religious ceremony within the chapel, such as
baptism and the like. It further includes permission to all the compatriots of
the envoy, even if they do not belong to his retinue, to take part in the
service. But the receiving State need not allow its own subjects to take part
therein.
Self-jurisdiction.
§ 396. The seventh and last privilege of envoys in reference to their
exterritoriality is self-jurisdiction within certain limits. As the members of
his retinue are considered exterritorial, the receiving State has no
jurisdiction over them, and the home State may therefore delegate such civil
and criminal jurisdiction to the envoy. But no receiving State is required to
grant self-jurisdiction to an ambassador beyond a certain reasonable limit.
Thus, an envoy must have jurisdiction over his retinue in matters of
discipline, he must be able to order the arrest of a member of his retinue
who has committed a crime and is to be sent home for his trial, and the like.
But no civilised State would nowadays allow an envoy himself to try a
member of his retinue. This was done in former centuries. Thus, in 1603,
Sully, who was sent by Henri IV. of France on a special mission to England,
called together a French jury in London and had a member of his retinue
condemned to death for murder. The convicted man was handed over for
execution to the English authorities, but James I. reprieved him.[752]
[752] See Martens, "Causes Célèbres," I. p. 391. See also the two cases reported by Calvo, III. §
1545.
X
POSITION OF DIPLOMATIC ENVOYS AS REGARDS THIRD STATES
Possible Cases.
§ 397. Although, when an individual is accredited as diplomatic envoy by
one State to another, these two States only are directly concerned in his
appointment, the question must be discussed, what position such envoy has
as regards third States in those cases in which he comes in contact with
them. Several such cases are possible. An envoy may, first, travel through
the territory of a third State to reach the territory of the receiving State. Or,
an envoy accredited to a belligerent State and living on the latter's territory
may be found there by the other belligerent who militarily occupies such
territory. And, lastly, an envoy accredited to a certain State might interfere
with the affairs of a third State.
Envoy travelling through Territory of third State.
§ 398. If an envoy travels through the territory of a third State incognito
or for his pleasure only, there is no doubt that he cannot claim any special
privileges whatever. He is in exactly the same position as any other foreign
individual travelling on this territory, although by courtesy he might be
treated with particular attention. But matters are different when an envoy on
his way from his own State to the State of his destination travels through
the territory of a third State. If the sending and the receiving States are not
neighbours, the envoy probably has to travel through the territory of a third
State. Now, as the institution of legation is a necessary one for the
intercourse of States and is firmly established by International Law, there
ought to be no doubt whatever that such third State must grant the right of
innocent passage (jus transitus innoxii) to the envoy, provided that it is not
at war with the sending or the receiving State. But no other privileges,[753]
especially those of inviolability and exterritoriality need be granted to the
envoy. And the right of innocent passage does not include the right to stop
on the territory longer than is necessary for the passage. Thus, in 1854,
Soulé, the envoy of the United States of America at Madrid, who had
landed at Calais, intending to return to Madrid via Paris, was provisionally
stopped at Calais for the purpose of ascertaining whether he intended to
make a stay in Paris, which the French Government wanted to prevent,
because he was a French refugee naturalised in America and was reported
to have made speeches against the Emperor Napoleon. Soulé at once left
Calais, and the French Government declared, during the correspondence
with the United States in the matter, that there was no objection to Soulé's
traversing France on his way to Madrid, but they would not allow him to
make a sojourn in Paris or anywhere else in France.[754]
[753] The matter, which has always been disputed, is fully discussed by Twiss, I. § 222, who also
quotes the opinion of Grotius, Bynkershoek, and Vattel.
[754] See Wharton, I. § 97, and Moore, IV. § 643.
XI
THE RETINUE OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 120-124—Hall, § 51—Phillimore, II. §§ 186-193—Twiss, I. § 218—Moore, IV.
§§ 664-665—Ullmann, §§ 47 and 51—Geffcken in Holtzendorff, III. pp. 660-661—Heffter,
§ 221—Rivier, I. pp. 458-461—Nys, II. pp. 386-390—Pradier-Fodéré, III. §§ 1472-1486—
Fiore, II. Nos. 1164-1168—Calvo, III. §§ 1348-1350—Martens, II. § 16—Roederer, "De
l'application des immunités de l'ambassadeur au personnel de l'ambassade" (1904), pp. 22-
84.
XII
TERMINATION OF DIPLOMATIC MISSION
Delivery of Passports.
§ 411. A mission may terminate, further, through the delivery of his
passports to an envoy by the receiving State. The reason for such dismissal
of an envoy may be either gross misconduct on his part or a quarrel
between the sending and the receiving State which leads to a rupture of
diplomatic intercourse. Whenever such rupture takes place, diplomatic
relations between the two States come to an end and all diplomatic
privileges cease with the envoy's departing and crossing the frontier. If the
archives of the legations are not removed, they must be put under seal by
the departing envoy and confided to the protection[765] of some other foreign
legation.
[765] As regards the case of Montagnini, see above, §§ 106 and 386.
Constitutional Changes.
§ 414. If the head of the sending or receiving State is a Sovereign, his
death or abdication terminates the missions sent and received by him, and
all envoys remaining at their posts must receive new Letters of Credence.
But if they receive new Letters of Credence, no change in seniority is
considered to have taken place from the order in force before the change.
And during the time between the termination of the missions and the arrival
of new Letters of Credence they enjoy nevertheless all the privileges of
diplomatic envoys.
As regards the influence of constitutional changes in the headship of
republics on the missions sent or received, no certain rule exists.[767]
Everything depends, therefore, upon the merits of the special case.
[767] Writers on International Law differ concerning this point. See, for instance, Ullmann, § 53,
in contradistinction to Rivier, I. p. 517.
Death of Envoy.
§ 417. A mission ends, lastly, by the death of the envoy. As soon as an
envoy is dead, his effects, and especially his papers, must be sealed. This is
done by a member of the dead envoy's legation, or, if there be no such
members, by a member of another legation accredited to the same State.
The local Government must not interfere, unless at the special request by
the home State of the deceased envoy.
Although the mission and therefore the privileges of the envoy come to
an end by his death, the members of his family who resided under his roof
and the members of his suite enjoy their privileges until they leave the
country. But a certain time may be fixed for them to depart, and on its
expiration they lose their privilege of exterritoriality. It must be specially
mentioned that the Courts of the receiving State have no jurisdiction
whatever over the goods and effects of the deceased envoy, and that no
death duties can be demanded.
CHAPTER III
CONSULS
I
THE INSTITUTION OF CONSULS
II
CONSULAR ORGANISATION
III
APPOINTMENT OF CONSULS
Qualification of Candidates.
§ 424. International Law has no rules in regard to the qualifications of an
individual whom a State can appoint consul. Many States, however, possess
such rules in their Municipal Law as far as professional consuls are
concerned. The question, whether female consuls could be appointed,
cannot be answered in the negative, but, on the other hand, no State is
obliged to grant female consuls the exequatur, and many States would at
present certainly refuse it.
No State obliged to admit Consuls.
§ 425. According to International Law a State is not at all obliged to
admit consuls. But the commercial interests of all the States are so powerful
that practically every State must admit consuls of foreign Powers, as a State
which refused such admittance would in its turn not be allowed to have its
own consuls abroad. The commercial and consular treaties between two
States stipulate as a rule that the contracting States shall have the right to
appoint consuls in all those parts of each other's country in which consuls of
third States are already or shall in future be admitted. Consequently a State
cannot refuse admittance to a consul of one State for a certain district if it
admits a consul of another State. But as long as a State has not admitted any
other State's consul for a district, it can refuse admittance to a consul of the
State anxious to organise consular service in that district. Thus, for instance,
Russia refused for a long time for political reasons to admit consuls in
Warsaw.
What kind of States can appoint Consuls.
§ 426. There is no doubt that it is within the faculty of every full-
Sovereign State to appoint consuls. As regards not full-Sovereign States,
everything depends upon the special case. As foreign States can appoint
consuls in States under suzerainty, it cannot be doubted that, provided the
contrary is not specially stipulated between the vassal and the suzerain
State, and provided the vassal State is not one which has no position within
the Family of Nations,[774] a vassal State is in its turn competent to appoint
consuls in foreign States. In regard to member-States of a Federal State it is
the Constitution of the Federal State which settles the question. Thus,
according to the Constitution of Germany, the Federal State is exclusively
competent to appoint consuls, in contradistinction to diplomatic envoys
who may be sent and received by every member-State of the German
Empire.
[774] See above, § 91.
V
POSITION AND PRIVILEGES OF CONSULS
Position.
§ 434. Like diplomatic envoys, consuls are simply objects of
International Law. Such rights as they have are granted to them by
Municipal Laws in compliance with rights of the appointing States
according to International Law.[779] As regards their position, it should
nowadays be an established and uncontested fact that consuls do not enjoy
the position of diplomatic envoys, since no Christian State actually grants to
foreign consuls the privileges of diplomatic agents. On the other hand, it
would be incorrect to maintain that their position is in no way different
from that of any other individual living within the consular district. Since
they are appointed by foreign States and have received the exequatur, they
are publicly recognised by the admitting State as agents of the appointing
State. Of course, consuls are not diplomatic representatives, for they do not
represent the appointing States in the totality of their international relations,
but for a limited number of tasks and for local purposes only. Yet they bear
a recognised public character, in contradistinction to mere private
individuals, and, consequently, their position is different from that of mere
private individuals. This is certainly the case with regard to professional
consuls, who are officials of their home State and are specially sent to the
foreign State for the purpose of administering the consular office. But in
regard to non-professional consuls it must likewise be maintained that the
admitting State by granting the exequatur recognises their official position
towards itself, which demands at least a special protection[780] of their
persons and residences. The official position of consuls, however, does not
involve direct intercourse with the Government of the admitting State.
Consuls are appointed for local purposes only, and they have, therefore,
direct intercourse with the local authorities only. If they want to approach
the Government itself, they can do so only through the diplomatic envoy, to
whom they are subordinate.
[779] See above, § 384.
[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.
Consular Privileges.
§ 435. From the undoubted official position of consuls no universally
recognised privileges of importance emanate as yet. Apart from the special
protection due to consuls according to International Law, there is neither a
custom nor a universal agreement between the Powers to grant them
important privileges. Such privileges as consuls actually enjoy are granted
to them either by courtesy or in compliance with special stipulations of a
Commercial or Consular Treaty between the sending and the admitting
State. I doubt not that in time the Powers will agree upon a universal treaty
in regard to the position and privileges of consuls.[781] Meanwhile, it is of
interest to take notice of some of the more important stipulations which are
to be found in the innumerable treaties between the several States in regard
to consular privileges:
[781]The Institute of International Law at its meeting at Venice in 1896 adopted a Règlement sur
les immunités consulaires comprising twenty-one articles. See Annuaire, XV. p. 304.
(1) A distinction is very often made between professional and non-
professional consuls in so far as the former are accorded more privileges
than the latter.
(2) Although consuls are not exempt from the local civil and criminal
jurisdiction, the latter is in regard to professional consuls often limited to
crimes of a more serious character.
(3) In many treaties it is stipulated that consular archives shall be
inviolable from search or seizure. Consuls are therefore obliged to keep
their official documents and correspondence separate from their private
papers.
(4) Inviolability of the consular buildings is also sometimes stipulated, so
that no officer of the local police, Courts, and so on, can enter these
buildings without special permission of the consul. But it is then the duty of
consuls to surrender criminals who have taken refuge in these buildings.
(5) Professional consuls are often exempt from all kinds of rates and
taxes, from the liability to have soldiers quartered in their houses, and from
the duty to appear in person as witnesses before the Courts. In the latter
case consuls have either to send in their evidence in writing, or their
evidence may be taken by a commission on the premises of the consulate.
(6) Consuls of all kinds have the right to put up the arms of the
appointing State over the door of the consular building and to hoist the
national flag.
VI
TERMINATION OF CONSULAR OFFICE
VII
CONSULS IN NON-CHRISTIAN STATES
Tarring, "British Consular Jurisdiction in the East" (1887)—Hall, "Foreign Powers and
Jurisdiction," §§ 64-85—Halleck, I. pp. 385-398—Phillimore, II. §§ 272-277—Taylor, §§
331-333—Twiss, I. § 136—Wheaton, § 110—Ullmann, §§ 63-65—Bulmerincq in
Holtzendorff, III. pp. 720-738—Rivier, I. § 43—Nys, II. pp. 400-414—Calvo, III. §§ 1431-
1449—Bonfils, Nos. 776-791—Pradier-Fodéré, IV. 2122-2138—Mérignhac, II. pp. 338-
351—Martens, II. §§ 24-26—Martens, "Konsularwesen und Konsularjurisdiction im
Orient" (German translation from the Russian original by Skerst, 1874)—Bruillat, "Étude
historique et critique sur les juridictions consulaires" (1898)—Lippmann, "Die
Konsularjurisdiction im Orient" (1898)—Vergé, "Des consuls dans les pays d'occident"
(1903)—Hinckley, "American Consular Jurisdiction in the Orient" (1906)—Piggott,
"Exterritoriality. The Law relating to Consular Jurisdiction, &c. in Oriental Countries" (new
edition, 1907)—Mandelstam, "La justice ottomane dans ses rapports avec les puissances
étrangères" (1911), and in R.G. XIV. (1907), pp. 5 and 534, and XV. (1908), pp. 329-384.
CHAPTER IV
MISCELLANEOUS AGENCIES
I
ARMED FORCES ON FOREIGN TERRITORY
Case of McLeod.
§ 446. An excellent example of the position of armed forces abroad is
furnished by the case of McLeod,[787] which occurred in 1841. Alexander
McLeod, who was a member of the British force sent by the Canadian
Government in 1837 into the territory of the United States for the purpose
of capturing the Caroline, a boat equipped for crossing into Canadian
territory and taking help to the Canadian insurgents, came in 1841 on
business to the State of New York, and was arrested and indicted for the
killing of one Amos Durfee, a citizen of the United States, on the occasion
of the capture of the Caroline. The English Ambassador at Washington
demanded the release of McLeod, on the ground that he was at the time of
the alleged crime a member of a British armed force sent into the territory
of the United States by the Canadian Government acting in a case of
necessity. McLeod was not released, but had to take his trial; he was,
however, acquitted on proof of an alibi. It is of importance to quote a
passage in the reply of Mr. Webster, the Secretary of Foreign Affairs of the
United States, to a note of the British Ambassador concerning this affair.
The passage runs thus:—"The Government of the United States entertains
no doubt that, after the avowal of the transaction as a public transaction,
authorised and undertaken by the British authorities, individuals concerned
in it ought not ... to be holden personally responsible in the ordinary
tribunals for their participation in it."
[787] See Wharton, I. § 21, and Moore, II. § 179.
II
MEN-OF-WAR IN FOREIGN WATERS
IV
INTERNATIONAL COMMISSIONS
V
INTERNATIONAL OFFICES
International Office for the Protection of Works of Literature and Art and of Industrial Property.
§ 467. In 1883 an International Union for the Protection of Industrial
Property, and in 1886 an International Union for the Protection of Works of
Literature and Art, were created, with an international office in Berne.
There are a secretary-general and three assistants, who edit a monthly, Le
Droit d'Auteur, in French.[817]
[817] See below, §§ 584 and 585, No. 2.
VI
THE INTERNATIONAL COURT OF ARBITRATION
VII
THE INTERNATIONAL PRIZE COURT AND THE PROPOSED INTERNATIONAL
COURT OF JUSTICE
Lawrence, § 192—Despagnet, No. 683^{bis}—Scott, "The Hague Peace Conferences"
(1909), pp. 465-511 and 423-464, and in A.J. V. (1911), pp. 302-324—Gregory in A.J. II.
(1908), pp. 458-475.
I
NEGOTIATION
Conception of Negotiation.
§ 477. International negotiation is the term for such intercourse between
two or more States as is initiated and directed for the purpose of effecting
an understanding between them on matters of interest. Since civilised States
form a body interknitted through their interests, such negotiation is in some
shape or other constantly going on. No State of any importance can abstain
from it in practice. There are many other international transactions,[830] but
negotiation is by far the most important of them. And it must be emphasised
that negotiation as a means of amicably settling conflicts between two or
more States is only a particular kind of negotiation, although it will be
specially discussed in another part of this work.[831]
[830] See below, §§ 486-490.
[831] See below, vol. II. §§ 4-6.
Parties to Negotiation.
§ 478. International negotiations can be conducted by all such States as
have a standing within the Family of Nations. Full-Sovereign States are,
therefore, the regular subjects of international negotiation. But it would be
wrong to maintain that half- and part-Sovereign States can never be parties
to international negotiations. For they can indeed conduct negotiations on
those points concerning which they have a standing within the Family of
Nations. Thus, for instance, while Bulgaria was a half-Sovereign State, she
was nevertheless able to negotiate on several matters with foreign States
independently of Turkey.[832] But so-called colonial States, as the Dominion
of Canada, can never be parties to international negotiations; any necessary
negotiation for a colonial State must be conducted by the mother-State to
which it internationally belongs.[833]
[832] See above, § 91.
[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.
Purpose of Negotiation.
§ 479. Negotiations between States may have various purposes. The
purpose may be an exchange of views only on some political question; but
it may also be an arrangement as to the line of action to be taken in future
with regard to a certain point, or a settlement of differences, or the creation
of international institutions, such as the Universal Postal Union for
example, and so on. Of the greatest importance are those negotiations which
aim at an understanding between members of the Family of Nations
respecting the very creation of rules of International Law by international
conventions. Since the Vienna Congress at the beginning of the nineteenth
century negotiations between the Powers for the purpose of defining,
creating, or abolishing rules of International Law have been frequently and
very successfully conducted.[834]
[834] See below, §§ 555-568b.
Form of Negotiation.
§ 481. The Law of Nations does not prescribe any particular form in
which international negotiations must be conducted. Such negotiations may,
therefore, take place viva voce or through the exchange of written
representations and arguments, or both. The more important negotiations
are regularly conducted through the diplomatic exchange of written
communications, as only in this way can misunderstandings be avoided,
which easily arise during viva voce negotiations. Of the greatest importance
are the negotiations which take place through congresses and conferences.
[838]
[838] See below, § 483.
During viva voce negotiations it happens sometimes that a diplomatic
envoy negotiating with the Secretary for Foreign Affairs reads out a letter
received from his home State. In such case it is usual to leave a copy of the
letter at the Foreign Office. If a copy is refused, the Secretary for Foreign
Affairs can on his part refuse to hear the letter read. Thus in 1825 Canning
refused to allow a Russian communication to be read to him by the Russian
Ambassador in London with regard to the independence of the former
Spanish colonies in South America, because this Ambassador was not
authorised to leave a copy of the communication at the British Foreign
Office.[839]
[839] As regards the language used during negotiation, see above, § 359.
II
CONGRESSES AND CONFERENCES
III
TRANSACTIONS BESIDES NEGOTIATION
Notification.
§ 488. Notification is the technical term for the communication to other
States of the knowledge of certain facts and events of legal importance. But
a distinction must be drawn between obligatory and merely usual
notification.
Notification has of late been stipulated in several cases to be obligatory.
Thus, according to article 34 of the General Act of the Berlin Congo
Conference of 1885, notification of new occupations and the like on the
African coast is obligatory. Thus, further, according to article 84 of the
Hague Convention for the peaceful adjustment of international differences,
in case a number of States are parties to a treaty and two of the parties are at
variance concerning the interpretation of such treaty and agree to have the
difference settled by arbitration, they have to notify this agreement to all
other parties to the treaty. Again, according to article 2 of the Hague
Convention concerning the Commencement of Hostilities, 1907, the
outbreak of war must be notified to the neutral Powers, and so must the
declaration of a blockade,[845] according to article 11 of the Declaration of
London, 1909.
[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.
Protest.
§ 489. Protest is a formal communication on the part of a State to another
that it objects to an act performed or contemplated by the latter. A protest
serves the purpose of preservation of rights, or of making it known that the
protesting State does not acquiesce in and does not recognise certain acts. A
protest can be lodged with another State concerning acts of the latter which
have been notified to the former or which have otherwise become known.
On the other hand, if a State acquires knowledge of an act which it
considers internationally illegal and against its rights, and nevertheless does
not protest, such attitude implies renunciation of such rights, provided a
protest would have been necessary to preserve a claim. It may further
happen that a State at first protests, but afterwards either expressly[846] or
tacitly acquiesces in the act. And it must be emphasised that under certain
circumstances and conditions a simple protest on the part of a State without
further action is not in itself sufficient to preserve the rights in behalf of
which the protest was made.[847]
[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.
[847] See below, § 539, concerning the withdrawal of Russia from article 59 of the Treaty of
Berlin, 1878, stipulating the freedom of the port of Batoum.
Renunciation.
§ 490. Renunciation is the deliberate abandonment of rights. It can be
given expressis verbis or tacitly. If, for instance, a State by occupation takes
possession of an island which has previously been occupied by another
State,[848] the latter tacitly renounces its rights by not protesting as soon as it
receives knowledge of the fact. Renunciation plays a prominent part in the
amicable settlement of differences between States, either one or both parties
frequently renouncing their claims for the purpose of coming to an
agreement. But it must be specially observed that mere silence on the part
of a State does not imply renunciation; this occurs only when a State
remains silent, although a protest is necessary to preserve a claim.
[848] See above, § 247.
CHAPTER II
TREATIES
I
CHARACTER AND FUNCTION OF TREATIES
Vattel, II. §§ 152, 153, 157, 163—Hall, § 107—Phillimore, II. § 44—Twiss, I. §§ 224-233—
Taylor, §§ 341-342—Bluntschli, § 402—Heffter, § 81—Despagnet, Nos. 435-436—
Pradier-Fodéré, II. Nos. 888-919—Rivier, II. pp. 33-40—Nys, III. pp. 18-20 and 43-48—
Calvo, III. §§ 1567-1584—Fiore, II. Nos. 976-982—Martens, I. § 103—Bergbohm,
"Staatsverträge und Gesetze als Quellen des Völkerrechts" (1877)—Jellinek, "Die
rechtliche Natur der Staatenverträge" (1880)—Laghi, "Teoria dei trattati internazionali"
(1882)—Buonamici, "Dei trattati internazionali" (1888)—Nippold, "Der völkerrechtliche
Vertrag" (1894)—Triepel, "Völkerrecht und Landesrecht" (1899), pp. 27-90.
Conception of Treaties.
§ 491. International treaties are conventions or contracts between two or
more States concerning various matters of interest. Even before a Law of
Nations in the modern sense of the term was in existence, treaties used to be
concluded between States. And although in those times treaties were neither
based on nor were themselves a cause of an International Law, they were
nevertheless considered sacred and binding on account of religious and
moral sentiment. However, since the manifold intercourse of modern times
did not then exist between the different States, treaties did not discharge
such all-important functions in the life of humanity as they do now.
Different kinds of Treaties.
§ 492. These important functions are manifest if attention is given to the
variety of international treaties which exist nowadays and are day by day
concluded for innumerable purposes. In regard to State property, treaties are
concluded of cession, of boundary, and many others. Alliances, treaties of
protection, of guarantee, of neutrality, and of peace are concluded for
political purposes. Various purposes are served by consular treaties,
commercial[849] treaties, treaties in regard to the post, telegraphs, and
railways, treaties of copyright and the like, of jurisdiction, of extradition,
monetary treaties, treaties in regard to measures and weights, to rates, taxes,
and custom-house duties, treaties on the matter of sanitation with respect to
epidemics, treaties in the interest of industrial labourers, and treaties with
regard to agriculture and industry. Again, various purposes are served by
treaties concerning warfare, mediation, arbitration, and so on.
[849] See below, §§ 578-580.
I do not intend to discuss the question of classification of the different
kinds of treaties, for hitherto all attempts[850] at such classification have
failed. But there is one distinction to be made which is of the greatest
importance and according to which the whole body of treaties is to be
divided into two classes. For treaties may, on the one hand, be concluded
for the purpose of confirming, defining, or abolishing existing customary
rules, and of establishing new rules for the Law of Nations. Treaties of this
kind ought to be termed law-making treaties. On the other hand, treaties
may be concluded for all kinds of other purposes. Law-making treaties as a
source of rules of International Law have been discussed above (§ 18); the
most important of these treaties will be considered below (§§ 556-568b).
[850] Since the time of Grotius the science of the Law of Nations has not ceased attempting a
satisfactory classification of the different kinds of treaties. See Heffter, §§ 88-91; Bluntschli, §§
442-445; Martens, I. § 113; Ullmann, § 82; Wheaton, § 268 (following Vattel, II. § 169); Rivier,
II. pp. 106-118; Westlake, I. p. 283, and many others.
Binding Force of Treaties.
§ 493. The question as to the reason of the binding force of international
treaties always was, and still is, very much disputed. That all those
publicists who deny the legal character of the Law of Nations deny likewise
a legally binding force in international treaties is obvious. But even among
those who acknowledge the legal character of International Law, unanimity
by no means exists concerning this binding force of treaties. The question is
all the more important as everybody knows that treaties are sometimes
broken, rightly according to the opinion of the one party, and wrongly
according to the opinion of the other. Many publicists find the binding force
of treaties in the Law of Nature, others in religious and moral principles,
others[851] again in the self-restraint exercised by States in becoming a party
to a treaty. Some writers[852] assert that it is the contracting parties' own will
which gives binding force to their treaties, and others[853] teach that such
binding force is to be found im Rechtsbewusstsein der Menschheit—that is,
in the idea of right innate in man. I believe that the question can
satisfactorily be dealt with only by dividing it into several different
questions and by answering those questions seriatim.
[851] So Hall, § 107; Jellinek, "Staatenverträge," p. 31; Nippold, § 11.
[852] So Triepel, "Völkerrecht und Landesrecht" (1899), p. 82.
[853] So Bluntschli, § 410.
First, the question is to be answered why treaties are legally binding. The
answer must categorically be that this is so because there exists a customary
rule of International Law that treaties are binding.
Then the question might be put as to the cause of the existence of such
customary rule. The answer must be that such rule is the product of several
joint causes. Religious and moral reasons require such a rule quite as much
as the interest of the States, for no law could exist between nations if such
rule did not exist. All causes which have been and are still working to create
and maintain an International Law are at the background of this question.
And, thirdly, the question might be put how it is possible to speak of a
legally binding force in treaties without a judicial authority to enforce their
stipulations. The answer must be that the binding force of treaties, although
it is a legal force, is not the same as the binding force of contracts according
to Municipal Law, since International Law is a weaker law, and for this
reason less enforceable, than Municipal Law. But just as International Law
does not lack legal character in consequence of the fact that there is no
central authority[854] above the States which could enforce it, so international
treaties are not deficient of a legally binding force because there is no
judicial authority for the enforcement of their stipulations.
[854] See above, § 5.
II
PARTIES TO TREATIES
Constitutional Restrictions.
§ 497. Although the heads of States are regularly, according to the Law
of Nations, the organs that exercise the treaty-making power of the States,
constitutional restrictions imposed upon the heads concerning the exercise
of this power are nevertheless of importance for the Law of Nations. Such
treaties concluded by heads of States or representatives authorised by these
heads as violate constitutional restrictions are not real treaties and do not
bind the State concerned, because the representatives have exceeded their
powers in concluding the treaties.[858] Such constitutional restrictions,
although they are not of great importance in Great Britain,[859] play a
prominent part in the Constitutions of most countries. Thus, according to
article 8 of the French Constitution, the President exercises the treaty-
making power; but peace treaties and such other treaties as concern
commerce, finance, and some other matters, are not valid without the co-
operation of the French Parliament. Thus, further, according to articles 1, 4,
and 11 of the Constitution of the German Empire, the Emperor exercises the
treaty-making power; but such treaties as concern the frontier, commerce,
and several other matters, are not valid without the co-operation of the
Bundesrath and the Reichstag. Again, according to article 2, section 2, of
the Constitution of the United States, the President can only ratify treaties
with the consent of the Senate.
[858] The whole matter is discussed with great lucidity by Nippold, op. cit. pp. 127-164; see also
Schoen, loc. cit.
[859] See Anson, "The Law and Custom of the Constitution," II. (2nd ed.), pp. 297-300.
Immoral Obligations.
§ 505. It is a customarily recognised rule of the Law of Nations that
immoral obligations cannot be the object of an international treaty. Thus, an
alliance for the purpose of attacking a third State without provocation is
from the beginning not binding. It cannot be denied that in the past many
treaties stipulating immoral obligations have been concluded and executed,
but this does not alter the fact that such treaties were legally not binding
upon the contracting parties. It must, however, be taken into consideration
that the question as to what is immoral is often controversial. An obligation
which is considered immoral by other States may not necessarily appear
immoral to the contracting parties, and there is no Court that can decide the
controversy.
Illegal Obligations.
§ 506. It is a unanimously recognised customary rule of International
Law that obligations which are at variance with universally recognised
principles of International Law cannot be the object of a treaty. If, for
instance, a State entered into a convention with another State not to
interfere in case the latter should appropriate a certain part of the Open Sea,
or should command its vessels to commit piratical acts on the Open Sea,
such treaty would be null and void, because it is a principle of International
Law that no part of the Open Sea can be appropriated, and that it is the duty
of every State to interdict to its vessels the commission of piracy on the
High Seas.
IV
FORM AND PARTS OF TREATIES
Parts of Treaties.
§ 509. Since International Law lays down no rules concerning the form
of treaties, there exist no rules concerning the arrangement of the parts of
written treaties. But the following order is usually observed. A first part, the
so-called preamble, comprises the names of the heads of the contracting
States, of their duly authorised representatives, and the motives for the
conclusion of the treaty. A second part consists of the primary stipulations
in numbered articles. A third part consists of miscellaneous stipulations
concerning the duration of the treaty, its ratification, the accession of third
Powers, and the like. The last part comprises the signatures of the
representatives. But this order is by no means necessary. Sometimes, for
instance, the treaty itself does not contain the very stipulations upon which
the contracting parties have agreed, such stipulations being placed in an
annex to the treaty. It may also happen that a treaty contains secret
stipulations in an additional part, which are not made public with the bulk
of the stipulations.[868]
[868] The matter is treated with all details by Pradier-Fodéré, II. §§ 1086-1096.
V
RATIFICATION OF TREATIES
Refusal of Ratification.
§ 514. The question now requires attention whether ratification can be
refused on just grounds only or according to discretion. Formerly[874] it was
maintained that ratification could not be refused in case the representatives
had not exceeded their powers or violated their secret instructions. But
nowadays there is probably no publicist who maintains that a State is in any
case legally[875] bound not to refuse ratification. Yet many insist that a State
is, except for just reasons, in principle morally bound not to refuse
ratification. I cannot see, however, the value of such a moral in
contradistinction to a legal duty. The fact upon which everybody agrees is
that International Law does in no case impose a duty of ratification upon a
contracting party. A State refusing ratification will always have reasons for
such line of action which appear just to itself, although they may be unjust
in the eyes of others. In practice, ratification is given or withheld at
discretion. But in the majority of cases, of course, ratification is not refused.
A State which often and apparently wantonly refused ratification of treaties
would lose all credit in international negotiations and would soon feel the
consequences. On the other hand, it is impossible to lay down hard-and-fast
rules respecting just and unjust causes of refusal of ratification. The
interests at stake are so various, and the circumstances which must
influence a State are so imponderable, that it must be left to the discretion
of every State to decide the question for itself. Numerous examples of
important treaties which have not found ratification can be given. It suffices
to mention the Hay-Pauncefote Treaty between the United States and Great
Britain regarding the proposed Nicaragua Canal, signed on February 5,
1900, which was ratified with modifications by the Senate of the United
States, this being equivalent to refusal of ratification. (See below, § 517.)
[874] See Grotius, II. c. 11, § 12; Bynkershoek, "Quaestiones juris publici," II. 7; Wicquefort,
"L'Ambassadeur," II. 15; Vattel, II. § 156; G. F. von Martens, § 48.
[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.
Form of Ratification.
§ 515. No rule of International Law exists which prescribes a necessary
form of ratification. Ratification can therefore be given as well tacitly as
expressly. Tacit ratification takes place when a State begins the execution of
a treaty without expressly ratifying it. Further, ratification may be given
orally or in writing, although I am not aware of any case in which
ratification was given orally. For it is usual for ratification to take the form
of a document duly signed by the heads of the States concerned and their
Secretaries for Foreign Affairs. It is usual to draft as many documents as
there are parties to the convention, and to exchange these documents
between the parties. Sometimes the whole of the treaty is recited verbatim
in the ratifying documents, but sometimes only the title, preamble, and date
of the treaty, and the names of the signatory representatives are cited. As
ratification is the necessary confirmation only of an already existing treaty,
the essential requirement in a ratifying document is merely that it refer
clearly and unmistakably to the treaty to be ratified. The citation of title,
preamble, date, and names of the representatives is, therefore, quite
sufficient to satisfy that requirement, and I cannot agree with those writers
who maintain that the whole of the treaty ought to be recited verbatim.
Ratification by whom effected.
§ 516. Ratification is effected by those organs which exercise the treaty-
making power of the States. These organs are regularly the heads of the
States, but they can, according to the Municipal Law of some States,
delegate the power of ratification for some parts of the globe to other
representatives. Thus, the Viceroy of India is empowered to ratify treaties
with certain Asiatic monarchs in the name of the King of Great Britain and
Emperor of India, and the Governor-General of Turkestan has a similar
power for the Emperor of Russia.
In case the head of a State ratifies a treaty, although the necessary
constitutional requirements have not been previously fulfilled, as, for
instance, in the case in which a treaty has not received the necessary
approval from the Parliament of the said State, the question arises whether
such ratification is valid or null and void. Many writers[876] maintain that
such ratification is nevertheless valid. But this opinion is not correct,
because it is clearly evident that in such a case the head of the State has
exceeded his powers, and that, therefore, the State concerned cannot be held
to be bound by the treaty.[877] The conflict between the United States and
France in 1831, frequently quoted in support of the opinion that such
ratification is valid, is not in point. It is true that the United States insisted
on payment of the indemnity stipulated by a treaty which had been ratified
by the King of France without having received the necessary approval of
the French Parliament, but the United States did not maintain that the
ratification was valid; she insisted upon payment because the French
Government had admitted that such indemnity was due to her.[878]
[876] See, for instance, Martens, § 107, and Rivier, II. p. 85.
[877] See above, § 497, and Nippold, p. 147.
[878] See Wharton, II. § 131A, p. 20.
Ratification can not be partial and conditional.
§ 517. It follows from the nature of ratification as a necessary
confirmation of a treaty already concluded that ratification must be either
given or refused, no conditional or partial ratification being possible. That
occasionally a State tries to modify a treaty in ratifying it cannot be denied,
yet conditional ratification is no ratification at all, but equivalent to refusal
of ratification. Nothing, of course, prevents the other contracting party from
entering into fresh negotiations in regard to such modifications; but it must
be emphasised that such negotiations are negotiations for a new treaty,[879]
the old treaty having become null and void through its conditional
ratification. On the other hand, no obligation exists for such party to enter
into fresh negotiations, it being a fact that conditional ratification is
identical with refusal of ratification, whereby the treaty falls to the ground.
Thus, for instance, when the United States Senate on December 20, 1900, in
consenting[880] to the ratification of the Hay-Pauncefote Treaty as regards the
Nicaragua Canal, added modifying amendments, Great Britain did not
accept the amendments and considered the treaty fallen to the ground.
[879] This is the correct explanation of the practice on the part of States, which sometimes
prevails, of acquiescing, after some hesitation, in alterations proposed by a party to a treaty in
ratifying it; see examples in Pradier-Fodéré, II. No. 1104, and Calvo, III. § 1630.
[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]
[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.
[882] See below, § 519.
Again, it is quite legitimate—and one ought not in that case to speak of
conditional ratification—for a contracting party who wants to secure the
interpretation of certain terms and clauses of a treaty to grant ratification
with the understanding only that such terms and clauses should be
interpreted in such and such a way. Thus when, in 1911, opposition arose in
Great Britain to the ratification of the Declaration of London on account of
the fact that the meaning of certain terms was ambiguous and that the
wording of certain clauses did not agree with the interpretation given to
them by the Report of the Drafting Committee, the British Government
declared that they would only ratify with the understanding that the
interpretation contained in the Report should be considered as binding and
that the ambiguous terms concerned should have a determinate meaning. In
such cases ratification does not introduce an amendment or an alteration,
but only fixes the meaning of otherwise doubtful terms and clauses of the
treaty.
Effect of Ratification.
§ 518. The effect of ratification is the binding force of the treaty. But the
question arises whether the effect of ratification is retroactive, so that a
treaty appears to be binding from the date when it is duly signed by the
representatives. No unanimity exists among publicists as regards this
question. As in all important cases treaties themselves stipulate the date
from which they are to take effect, the question is chiefly of theoretical
interest. The fact that ratification imparts the binding force to a treaty seems
to indicate that ratification has regularly no retroactive effect. Different,
however, is of course the case in which the contrary is expressly stipulated
in the very treaty, and, again, the case when a treaty contains such
stipulations as shall at once be executed, without waiting for the necessary
ratification. Be this as it may, ratification makes a treaty binding only if the
original consent was not given in error or under a delusion.[883] If, however,
the ratifying State discovers such error or delusion and ratifies the treaty
nevertheless, such ratification makes the treaty binding. And the same is
valid as regards a ratification given to a treaty although the ratifying State
knows that its representatives have exceeded their powers by concluding
the treaty.
[883] See above, § 500.
VI
EFFECT OF TREATIES
VII
MEANS OF SECURING PERFORMANCE OF TREATIES
Pledge.
§ 526. The pledging of movable property by one of the contracting
parties to the other for the purpose of securing the performance of a treaty is
possible, but has not frequently occurred. Thus, Poland is said to have
pledged her crown jewels once to Prussia.[894] The pledging of movables is
nowadays quite obsolete, although it might on occasion be revived.
[894] See Phillimore, II. § 55.
Occupation of Territory.
§ 527. Occupation of territory, such as a fort or even a whole province, as
a means of securing the performance of a treaty, has frequently been made
use of with regard to the payment of large sums of money due to a State
under a treaty. Nowadays such occupation is only resorted to in connection
with treaties of peace stipulating the payment of a war indemnity. Thus, the
preliminary peace treaty of Versailles in 1871 stipulated that Germany
should have the right to keep certain parts of France under military
occupation until the final payment of the war indemnity of five milliards of
francs.
Guarantee.
§ 528. The best means of securing treaties, and one which is still in use
generally, is the guarantee of such other States as are not directly affected
by the treaty. Such guarantee is a kind of accession[895] to the guaranteed
treaty, and a treaty in itself—namely, the promise of the guarantor
eventually to do what is in his power to compel the contracting party or
parties to execute the treaty.[896] Guarantee of a treaty is a species only of
guarantee in general, which will be discussed below, §§ 574-576a.
[895] See below, § 532.
[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
Accession.
§ 532. Of accession there are two kinds. Accession means, firstly, the
formal entrance of a third State into an existing treaty so that such State
becomes a party to the treaty with all rights and duties arising therefrom.
Such accession can take place only with the consent of the original
contracting parties, and accession always constitutes a treaty of itself. Very
often the contracting parties stipulate expressly that the treaty shall be open
to the accession of a certain State. And the so-called law-making treaties, as
the Declaration of Paris or the Geneva Convention for example, regularly
stipulate the option of accession of all such States as have not been
originally contracting parties.
But there is, secondly, another kind of accession possible. For a State
may enter into a treaty between other States for the purpose of guarantee.
[900]
This kind of accession makes the acceding State also a party to the
treaty; but the rights and duties of the acceding State are different from the
rights and duties of the other parties, for the former is a guarantor only,
whereas the latter are directly affected by the treaty.
[900] See above, § 528.
Adhesion.
§ 533. Adhesion is defined as such entrance of a third State into an
existing treaty as takes place either with regard only to a part of the
stipulations or with regard only to certain principles laid down in the treaty.
Whereas through accession a third State becomes a party to the treaty with
all the rights and duties arising from it, through adhesion a third State
becomes a party only to such parts or principles of the treaty as it has
adhered to. But it must be specially observed that the distinction between
accession and adhesion is one made in theory, to which practice frequently
does not correspond. Often treaties speak of accession of third States where
in fact adhesion only is meant, and vice versa. Thus, article 6 of the Hague
Convention with respect to the laws and customs of war on land stipulates
the possibility of future adhesion of non-signatory Powers, although
accession is meant.
IX
EXPIRATION AND DISSOLUTION OF TREATIES
X
VOIDANCE OF TREATIES
Grounds of Voidance.
§ 540. A treaty, although it has neither expired nor been dissolved, may
nevertheless lose its binding force by becoming void.[906] And such voidance
may have different grounds—namely, extinction of one of the two
contracting parties, impossibility of execution, realisation of the purpose of
the treaty otherwise than by fulfilment, and, lastly, extinction of such object
as was concerned in a treaty.
[906]But such voidance must not be confounded with the voidance of a treaty from its very
beginning; see above, § 501.
Grounds of Cancellation.
§ 545. A treaty, although it has neither expired, nor been dissolved, nor
become void, may nevertheless lose its binding force by cancellation. The
causes of cancellation are four—namely, inconsistency with International
Law created subsequent to the conclusion of the treaty, violation by one of
the contracting parties, subsequent change of status of one of them, and war.
Inconsistency with subsequent International Law.
§ 546. Just as treaties have no binding force when concluded with
reference to an illegal object, so they lose their binding force when through
a progressive development of International Law they become inconsistent
with the latter. Through the abolition of privateering among the signatory
Powers of the Declaration of Paris of 1856, for example, all treaties
between any of these Powers based on privateering as a recognised
institution of International Law were ipso facto cancelled.[908] But it must be
emphasised that subsequent Municipal Law can certainly have no such
influence upon existing treaties. On occasions, indeed, subsequent
Municipal Law creates for a State a conflict between its treaty obligations
and such law. In such case this State must endeavour to obtain a release by
the other contracting party from these obligations.[909]
[908] This must be maintained in spite of the fact that Protocol No. 24—see Martens, N.R.G.
XV. (1857), pp. 768-769—contains the following: "Sur une observation faite par M.M. les
Plénipotentiaires de la Russie, le Congrès reconnaît que la présente résolution, ne pouvant avoir
d'effet retroactif, ne saurait invalider les Conventions antérieures." This expression of opinion can
only mean that previous treaties with such States as were not and would not become parties to the
Declaration of Paris are not ipso facto cancelled by the Declaration.
[909] That Municipal Courts must apply the subsequent Municipal Law although it conflicts
with previous treaty obligations, there is no doubt, as has been pointed out above, § 21. See The
Cherokee Tobacco, 11 Wall 616; Whitney v. Robertson, 124 United States 190; Botiller v.
Dominguez, 130 United States 238. See also Moore, V. § 774.
War.
§ 549. How far war is a general ground of cancellation of treaties is not
quite settled. Details on this point will be given below, vol. II. § 99.
XII
RENEWAL, RECONFIRMATION, AND REDINTEGRATION OF TREATIES
Renewal of Treaties.
§ 550. Renewal of treaties is the term for the prolongation of such treaties
before their expiration as were concluded for a definite period of time only.
Renewal can take place through a new treaty, and the old treaty may then be
renewed as a body or in parts only. But the renewal can also take place
automatically, many treaties concluded for a certain period stipulating
expressly that they are considered renewed for another period in case
neither of the contracting parties has given notice.
Reconfirmation.
§ 551. Reconfirmation is the term for the express statement made in a
new treaty that a certain previous treaty, whose validity has or might have
become doubtful, is still, and remains, valid. Reconfirmation takes place
after such changes of circumstances as might be considered to interfere with
the validity of a treaty; for instance, after a war, as regards such treaties as
have not been cancelled by the outbreak of war. Reconfirmation can be
given to the whole of a previous treaty or to parts of it only. Sometimes
reconfirmation is given in this very precise way, that a new treaty stipulates
that a previous treaty shall be incorporated in itself. It must be emphasised
that in such a case those parties to the new treaty which have not been
parties to the previous treaty do not now become so by its reconfirmation,
the latter applying to the previous contracting parties only.
Redintegration.
§ 552. Treaties which have lost their binding force through expiration or
cancellation may regain it through redintegration. A treaty becomes
redintegrated by the mutual consent of the contracting parties regularly
given in a new treaty. Thus it is usual for treaties of peace to redintegrate all
those treaties cancelled through the outbreak of war whose stipulations the
contracting parties do not want to alter.
Without doubt, redintegration does not necessarily take place exclusively
by a treaty, as theoretically it must be considered possible for the
contracting parties tacitly to redintegrate an expired or cancelled treaty by a
line of conduct which indicates apparently their intention to redintegrate the
treaty. However, I do not know of any instance of such tacit redintegration.
XIII
INTERPRETATION OF TREATIES
CHAPTER III
IMPORTANT GROUPS OF TREATIES
I
IMPORTANT LAW-MAKING TREATIES
Declaration of Paris.
§ 559. The Declaration of Paris[917] of April 13, 1856, signed by Great
Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, is a pure
law-making treaty of the greatest importance, stipulating four rules with
regard to sea warfare—namely, that privateering is abolished; that the
neutral flag covers enemy goods with the exception of contraband of war;
that neutral goods, contraband excepted, cannot be confiscated even when
sailing under the enemy flag; that a blockade must be effective to be
binding.
[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.
Geneva Convention.
§ 560. The Geneva Convention[918] of August 22, 1864, and that of July 6,
1906, are pure law-making treaties for the amelioration of the conditions of
the wounded of armies in the field. The Geneva Convention of 1864 was
originally signed only by Switzerland, Baden, Belgium, Denmark, France,
Holland, Italy, Prussia, and Spain, but in time all other civilised States have
acceded except Costa Rica, Lichtenstein, and Monaco. A treaty [919]
containing articles additional to the Geneva Convention of 1864 was signed
at Geneva on October 20, 1868, but was not ratified. A better fate was in
store for the Geneva Convention[920] of 1906, which was signed by the
delegates of thirty-five States, many of which have already granted
ratification. Colombia, Costa Rica, Cuba, Nicaragua, Turkey, and Venezuela
have already acceded. It is of importance to emphasise that the Convention
of 1864 is not entirely replaced by the Convention of 1906, in so far as the
former remains in force between those Powers which are parties to it
without being parties to the latter. And it must be remembered that the Final
Act of the First as well as of the Second Peace Conference contains a
convention for the adaptation to sea warfare of the principles of the Geneva
Convention.
[918] Martens, N.R.G. XVIII. p. 607. See Lueder, "Die Genfer Convention" (1876), and Münzel,
"Untersuchungen über die Genfer Convention" (1901).
[919] Martens, N.R.G. XVIII. p. 612.
[920] Martens, N.R.G. 3rd Ser. II. p. 323.
II
ALLIANCES
Conception of Alliances.
§ 569. Alliances in the strict sense of the term are treaties of union
between two or more States for the purpose of defending each other against
an attack in war, or of jointly attacking third States, or for both purposes.
The term "alliance" is, however, often made use of in a wider sense, and it
comprises in such cases treaties of union for various purposes. Thus, the so-
called "Holy Alliance," concluded in 1815 between the Emperors of Austria
and Russia and the King of Prussia, and afterwards joined by almost all of
the Sovereigns of Europe, was a union for such vague purposes that it
cannot be called an alliance in the strict sense of the term.
History relates innumerable alliances between the several States. They
have always played, and still play, an important part in politics. At the
present time the triple alliance between Germany, Austria, and Italy since
1879 and 1882, the alliance between Russia and France since 1899, and that
between Great Britain and Japan since 1902, renewed in 1905 and 1911, are
illustrative examples.[935]
[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.
Parties to Alliance.
§ 570. Subjects of alliances are said to be full-Sovereign States only. But
the fact cannot be denied that alliances have been concluded by States
under suzerainty. Thus, the convention of April 16, 1877, between
Roumania, which was then under Turkish suzerainty, and Russia,
concerning the passage of Russian troops through Roumanian territory in
case of war with Turkey, was practically a treaty of alliance.[936] Thus,
further, the former South African Republic, although, at any rate according
to the views of the British Government, a half-Sovereign State under British
suzerainty, concluded an alliance with the former Orange Free State by
treaty of March 17, 1897.[937]
[936] See Martens, N.R.G. 2nd Ser. III. p. 182.
[937] See Martens, N.R.G. 2nd Ser. XXV. p. 327.
Conditions of Alliances.
§ 572. Alliances may contain all sorts of conditions. The most important
are the conditions regarding the assistance to be rendered. It may be that
assistance is to be rendered with the whole or a limited part of the military
and naval forces of the allies, or with the whole or a limited part of their
military or with the whole or a limited part of their naval forces only.
Assistance may, further, be rendered in money only, so that one of the allies
is fighting with his forces while the other supplies a certain sum of money
for their maintenance. A treaty of alliance of such a kind must not be
confounded with a simple treaty of subsidy. If two States enter into a
convention that one of the parties shall furnish the other permanently in
time of peace and war with a limited number of troops in return for a certain
annual payment, such convention is not an alliance, but a treaty of subsidy
only. But if two States enter into a convention that in case of war one of the
parties shall furnish the other with a limited number of troops, be it in return
for payment or not, such convention really constitutes an alliance. For every
convention concluded for the purpose of lending succour in time of war
implies an alliance. It is for this reason that the above-mentioned[939] treaty
of 1877 between Russia and Roumania concerning the passage of Russian
troops through Roumanian territory in case of war against Turkey was
really a treaty of alliance.
[939] See above, § 570.
Casus Fœderis.
§ 573. Casus fœderis 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 fœderis 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
fœderis, 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 fœderis.
That the casus fœderis is not influenced by the fact that a State,
subsequent to entering into an alliance, concludes a treaty of general
arbitration with a third State, has been pointed out above, § 522.
III
TREATIES OF GUARANTEE AND OF PROTECTION
Treaties of Protection.
§ 577. Different from guarantee treaties are treaties of protection.
Whereas the former constitute the guarantee of a certain object to the
guaranteed, treaties of protection are treaties by which strong States simply
engage to protect weaker States without any guarantee whatever. A treaty of
protection must, however, not be confounded with a treaty of protectorate.
[951]
[951] See above, § 92.
IV
COMMERCIAL TREATIES
Copyright.
§ 584. On September 9, 1886, the Convention of Berne was signed for
the purpose of creating an international Union for the Protection of Works
of Art and Literature. The Union has an International Office[974] at Berne.
An additional Act to the convention was signed at Paris on May 4, 1906.
Since, however, the stipulations of these conventions did not prove quite
adequate, the "Revised[975] Berne Convention" was signed at Berlin on
November 13, 1908. The parties are Great Britain, Germany, Belgium,
Denmark, Spain, France, Haiti, Italy, Japan, Liberia, Luxemburg, Monaco,
Norway, Sweden, Switzerland, Tunis; but Denmark, France, Italy, Sweden,
and Tunis have not yet ratified. Portugal acceded later. To give effect to the
Convention of Berne of 1886, Parliament passed in 1886 the "Act to amend
the Law respecting International and Colonial Copyright" (49 & 50 Vict. c.
33). This Act, however, was, in consequence of the "Revised Berne
Convention" of Berlin of 1908, repealed by section 37 of the Copyright Act,
1911 (1 Geo. V. c. 00), and sections 30 and 31 of the latter Act now deal
with International Copyright.
[974]See above, § 467, and Orelli, "Der internationale Schutz des Urheberrechts" (1887);
Thomas, "La convention littéraire et artistique internationale, &c." (1894); Briggs, "The Law of
International Copyright" (1906); Röthlisberger, "Die Berner Übereinkunft zum Schutze von
Werken der Literatur und Kunst" (1906).
[975]See Martens, N.R.G. 3rd Ser. IV. p. 590; Wauwermans, "La convention de Berne (revisée à
Berlin) pour la protection des œuvres littéraires et artistiques" (1910).
(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.
[978] See Martens, N.R.G. 2nd Ser. X. p. 133.
[979] See above, § 467.
[980] See Martens, N.R.G. 2nd Ser. XXII. p. 208, and Pelletier et Vidal-Noguet, "La convention
d'union pour la protection de la propriété industrielle du 20 mars 1883 et les conférences de
révision postérieures" (1902).
[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.
[982] See Martens, N.R.G. 2nd Ser. XXXI. p. 272, and Kaufmann, "Welt-Zuckerindustrie und
internationales und coloniales Recht" (1904).
[983] See above, §§ 462 and 471.
[984] See Martens, N.R.G. 3rd Ser. I. p. 874.
Agriculture.
§ 586. Three general conventions are in existence in the interest of
Agriculture:—
(1) On June 7, 1905, the Convention for the Creation of an International
Agricultural Institute[985] was signed at Rome by forty States. The Institute
has its seat at Rome.
[985] See above, § 471a, 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.
[986] See Martens, N.R.G. 2nd Ser. VI. p. 261.
[987] See Martens, N.R.G. 2nd Ser. VIII. p. 435.
Official Publications.
§ 589. On March 15, 1886, Belgium, Brazil, Italy, Portugal, Servia,
Spain, Switzerland, and the United States of America signed at Brussels a
convention[997] concerning the exchange of their official documents and of
their scientific and literary publications in so far as they are edited by the
Governments. The same States, except Switzerland, signed under the same
date at Brussels a convention[998] for the exchange of their Journaux officiels
ainsi que des annales et des documents parlementaires.
[997] See Martens, N.R.G. 2nd Ser. XIV. p. 287.
[998] See Martens, N.R.G. 2nd Ser. XIV. p. 285.
Sanitation.
§ 590. In the interest of public health as endangered by cholera and
plague a number of so-called sanitary conventions have been concluded:—
(1) On January 30, 1892, Great Britain, Germany, Austria-Hungary,
Belgium, Denmark, Spain, France, Greece, Italy, Holland, Portugal, Russia,
Sweden-Norway, and Turkey signed the International Sanitary Convention
of Venice.[999]
[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.
[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.
[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.
[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.
[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.
[1004] See Martens, N.R.G. 3rd Ser. II. p. 913, and Treaty Series, 1909, No. 6.
[1005] See above, § 471b.
Pharmacopœia.
§ 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 Pharmacopœial Formulas for Potent Drugs.[1006]
[1006] See Martens, N.R.G. 3rd Ser. I. p. 592, and Treaty Series, 1907, No. 1.
Humanity.
§ 592. In the interest of humanity two Unions—although the term
"Union" is not made use of in the treaties—are in existence, namely, that
concerning Slave Trade and that concerning the so-called White Slave
Traffic.
(1) A treaty concerning slave trade[1007] was already in 1841 concluded
between Great Britain, Austria, France, Prussia, and Russia. And article 9
of the General Act of the Berlin Congo Conference of 1885 likewise dealt
with the matter. But it was not until 1890 that a Union for the suppression
of the slave trade came into existence. This Union was established by the
General Act[1008] of the Brussels Conference, signed on July 2, 1890, and
possesses two International Offices,[1009] namely, the International Maritime
Office at Zanzibar and the Bureau Spécial attached to the Foreign Office at
Brussels. The signatory Powers are:—Great Britain, Austria-Hungary,
Belgium, Congo Free State, Denmark, France, Germany, Holland, Italy,
Persia, Portugal, Russia, Spain, Sweden-Norway, the United States of
America, Turkey, and Zanzibar. Liberia acceded later.
[1007] See above, § 292, p. 368, note 2.
[1008] See Martens, N.R.G. 2nd Ser. XVI. p. 3.
[1009] See above, § 468.
(2) On May 18, 1904, an Agreement for the Suppression of the White
Slave Traffic[1010] was signed at Paris by Great Britain, Germany, Belgium,
Denmark, Spain, France, Italy, Holland, Portugal, Russia, Sweden-Norway,
and Switzerland. Brazil and Luxemburg acceded later. A further Agreement
concerning the subject was signed at Paris on May 4, 1910, by thirteen
States, but has not yet been ratified.
[1010]See Martens, N.R.G. 2nd Ser. XXXII. p. 160, and Treaty Series, 1905, No. 24—See also
Butz, "Die Bekämpfung des Mädchenhandels im internationalen Recht" (1908); Rehm in Z.V. I.
(1907), pp. 446-453.
American Republics.
§ 595. The first Pan-American Conference held at Washington in 1889
created the International Union of the American Republics for prompt
collection and distribution of commercial information.[1016] This Union of
the twenty-one independent States of America established an International
Office at Washington, called at first "The American International Bureau,"
but the fourth Pan-American Conference, held at Buenos Ayres in 1910,
changed the name of the Office[1017] to "The Pan-American Union." At the
same time this conference considerably extended[1018] the scope of the task
of this Bureau to include, besides other objects, the function of a permanent
commission of the Pan-American Conferences which has to keep the
archives, to assist in obtaining the ratification of the resolutions and
conventions adopted, to study or initiate projects to be included in the
programme of the conferences, to communicate them to the several
Governments, and to formulate the programme and regulations of each
successive conference.
[1016] See Barrett, "The Pan-American Union" (1911).
[1017] See above, § 467a.
[1018] See Reinsch, "Public International Unions" (1911), p. 117.
Science.
§ 596. In the interest of scientific research the following Unions[1019] have
been established:—
[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.
[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.
[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.
[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 fœderis, 599
conception of, 595
conditions of, 598
different kinds of, 597
parties to, 597
Alluvion, 300
Alsace, 279, 291
"Alternat" clause, the, 173
Amakouron, river, 242
Ambassadors, 57, 444. See also Diplomatic envoys
Ambrose Light, case of the, 342
Amelia Island, case of the, 186
American International Bureau, 517, 624
American Civil War, 70
Amos, Sheldon, 94
Andorra, international position of, 146
Anglo-French Agreement (1904), 278, 539
Anglo-Japanese Alliance, text of, 596
Anna, case of the, 301
Annexation, 303
Anti-Slavery Conference at Brussels, 368, 517, 560
Antivari, port of, 327
Antoninus Pius, 315
Anzilotti, 104
Apocrisiarii, 437
Aral, Sea of, 245, 321
Arbitration:
International Court of, 79, 274, 278, 372, 410, 503
Permanent Court of, suggested in 1306 by Pierre Dubois, 58
Tribunal at Paris (1893), 352
Armed forces on foreign territory, 500. See also Jurisdiction
Armed neutrality, first (1780), 64
Army of Occupation, jurisdiction of, 503
Art, Union for the protection of works of, 516, 615
Artificial boundaries, 270
Artificial formation of territory, 299
Asiatic States, 164, 165
Asylum of criminals:
in foreign countries, 392
in hôtels of diplomatic envoys, 461
in men-of-war and other public vessels abroad, 507
Atmosphere, territorial, 236
Attachés of Legation, 472
Attentat clause, the Belgian, 416, 421
Aubaine, droit d', 398
Aubespine, case of L', 459
Austin, 5, 98
Austria-Hungary as a real union, 134
Authentic interpretation, 582
Aviation, 236
Avulsio, 300
Awards of the Court of Arbitration, 521
Ayala, 84
Azoff, Sea of, 321
Azuni, 320
B
Baker, Sir Sherston, 94
Balance of power, 62, 65, 80, 193, 289, 307
Baltic, the, 248, 267
maintenance of status quo in the, 604
Bancroft treaties, 389
Barbeyrac, 90
Barents Sea, 266
Barima, river, 242
Bass, case of De, 459
Batoum, 539, 575, 579
Bavaria sends and receives diplomatic envoys, 441
Bay:
of Cancale, 262
of Chesapeake, 262, 263
of Conception, 262, 263
of Delaware, 262, 263
of Stettin, 263
Bays, 262
Bearers of despatches, 511, 512
Beckert, case of, 474
Behring Sea Award Act (1894), 352
Behring Sea conflict between Great Britain and United States, 320, 351
Belgium, independence of, 68, 312
neutralisation of, 152, 588
Belle-Isle, case of Maréchal de, 471
Belli, 84
Bello, 97
Bentham, 4, 88
Berlin:
Congo Conference of (1884-85), 72, 153, 368, 514, 537, 590, 605
Congress of (1878), 71, 118, 272, 368, 514
Decrees of, 65
Treaty of (1878), 71, 76, 327, 364, 369, 387, 575, 576, 579, 590
Bernard, 102
Berne Convention, 615
Bill of lading, 331
Binding force of treaties, 541, 545, 546
Biologic investigation of the North Sea, 626
Birds:
in Africa, preservation of, 623
useful to agriculture, Convention for the preservation of, 618
Birkenfeld, 230
Birth, acquisition of nationality by, 375
Black Sea, 247, 268, 269, 321
neutralisation of, 70, 325, 575
Blockade, 63, 335, 538, 588
of Venezuela, 74
Bluntschli, 36, 96, 99
Bodin, 111, 112
Bombardments, convention concerning, 594
Bon, 96
Bonfils, 95, 100
Bornemann, 97
Bosnia and Herzegovina, international position of, 77, 233, 576
Bosphorus and Dardanelles, 247, 266, 267, 268, 321
Boundaries of State territory, 270-273
Boundary:
Commissions, 272
dispute, 272, 296
mountains, 272
waters, 270
Boundary dispute:
between Great Britain and Venezuela, 198, 242
Louisiana, 295
Oregon, 295
Boundary treaty:
between Great Britain and the United States, 272
of Buenos Ayres (1881) between Argentina and Chili, 267, 564, 592
Bounties on sugar, Convention concerning, 515, 617
Brazil, international position of, 72, 312
Bristol Channel, 266
British seas, 317
Brooke, Sir James, Sovereign of Sarawak, 282
Brunus, 84
Brussels:
Anti-Slavery Conference of, 368, 517, 560, 591
Conference of (1874), 71, 552
Convention concerning sugar, 515, 617
Bry, 95
Buddhist States, 30, 154
Buenos Ayres, Boundary treaty of (1881), between Argentina and Chili,
267, 564, 592
Buffer States, 148
Bulgaria:
a party to the Hague Peace Conferences, 534
international position of, 71, 183, 576
Bulletin des Douanes, 517
Bulmerincq, 96, 100
Bumboats in the North Sea, 338, 351
Bundesrath, the, 433, 516, 546
Bundesgericht, the, 417
Burlamaqui, 90
Burroughs, Sir John, 319
Bynkershoek, 91, 320
C
Cabotage, 258, 606
Calhoun, 115
Callao, revolutionary outbreak at, 342
Calvo, 97, 99
Campos, 97
Canals, 248-254
Cancale, bay of, 262
Cancellation of treaties on account of:
subsequent change of status of a party, 579
their inconsistency with subsequent rules of International Law, 578
their violation by one of the parties, 579
war, 580
Canning, case of George, 532
Canning, case of Sir Stratford, 451
Canonists, 55
Canon Law, 8
Cape Breton Island, restitution of, to France, 566
Capitulations, 395, 482, 497
Capture in maritime war, Convention concerning, 594
Carlowitz, Peace Treaty of, 63
Carnazza-Amari, 96
Carnot, assassination of, 418, 420
Caroline, case of the, 187, 501
Caroline Islands, sold by Spain to Germany, 288
Carthagena, rebel men-of-war at, 342
Casa Blanca incident, the, 502
Casanova, 96
Caspian Sea, 246
Castione, case of, 415
Castlereagh, Lord, 412
Casus fœderis, 599
Cavour, Count, 426
Cellamare, case of Prince, 459
Celsus, 315
Central American Court of Justice, 525
Ceremonials, maritime. See Maritime ceremonials
Certificate of registry, 331
Cession of territory, 285-291
acquisition of nationality through, 289, 377
Ceylon, pearl fishery off the coast of, 348
Chablais and Faucigny, 279, 286
Chalmers, 103
Chambers of Reunion (1680-1683), 62
Changes in the condition of States, 121-125
Channel:
Bristol, 266
North, 266
St. George's, 266
Channel tunnel, proposed, 359
Chapelle, droit de, 467
Chargés d'Affaires, 445-481. See also Diplomatic envoys
Chargés des Affaires, 445
Charkieh, case of the, 507
Charles I., 319
Charlton, case of Porter, 408
Charter-party, 332
Chesapeake, Bay of, 262, 263
China, international position of, 164
China and Japan, war between, 72
Cholera. See Sanitary Conventions
Christiania, Treaty of, 75, 135
Christina, Queen of Sweden, 431
"Citizen" and "subject" of a State synonymous in International Law, 370
Civilians, the, 55
Clayton-Bulwer Treaty, 251
Coasting trade, 258, 606
Code of signals, International, 333
Codification of International Law, 35
Collective guarantee, treaties of, 601
Collision at sea, 334
Colonial States cannot be parties to international negotiation, 530
Colonies rank as territory of the motherland, 231
Comity of Nations, 24, 261
Commercial Code of Signals, 333, 334
Commissaries, 511
Commissions, International, 512-515
in the interest of:
fisheries, 513
foreign creditors, 515
navigation, 513
sanitation, 515
sugar, 515
Common Consent, 16
Como, Lake of, 245
Composite International Persons, 132-140
Compromise clause, 583
Conception, Bay of, 262, 263
Concert, European, 170
Concordat, 161
Condominium, 232, 272
Confederate States, 133, 135
Conferences. See Congresses.
Congo, river, 242
Congo Commission, the international, 242
Congo Conference of Berlin, 72, 368, 514, 537, 590, 605
Congo Free State:
annexation of, 76
merged in Belgium, 34, 287
neutralisation of, 153
recognition of, 73
Congresses, international:
cannot be distinguished from Conferences, 533
conception of, 533
envoys representing states at, 443, 453
parties to, 534
permanent, suggested by Podiebrad, 58
procedure at, 535
reception of envoys at, 452
Conquest, 302. See alsoSubjugation
Conseil sanitaire maritime et quarantenaire at Alexandria, 515
Conseil supérieur de santé at Constantinople, 515
Consolato del mare, 56
Constance, Lake of, 246
Constantinople:
Conference of (1885-6), 71
Treaty of (1888), 514, 591
Constitution, case of the, 507
Constitutional restrictions concerning the treaty-making power, 545
Constitutional system, 68
Consular Act, 484
Consular districts, 485
Consul-general, 486
Consular jurisdiction in non-Christian States, 497
Consular officers, 485
Consular service, British, 487
Consuls:
appointment of, 487-490
archives of, 495, 496
consular organisation, 485
consules missi and electi, 485
consular districts, 485
different classes of, 486
functions of, 480, 490-493
general character of, 484
informal appointment of, 490
in non-Christian States, 497
in the fifteenth century, 483
no obligation to admit, 488
non-professional, 495
position and privileges of, 493-495
qualification of, 487
subordinate to diplomatic envoys, 487
termination of consular office, 496
the institution of, 482
Consuls Marchands, 482
Contiguity, right of, 295
Contraband, 335
Contract debts, recovery of, 192, 592
Conventio omnis intelligitur rebus sic stantibus, 573
Convention, 551:
Anglo-French (1904), 278
concerning matters of international administration, 79
concerning the North Sea Fisheries, 349
concerning radiotelegraphy, 236, 355
for the protection of submarine cables, 354
Co-operation, 189
Copenhagen:
Peace Treaty of, 63
Treaty (1857) abolishing Sound dues, 268
Copyright:
Union concerning, 615
Acts concerning, 616
Corinth Canal, 248
Corps, diplomatic, 446
Corsica, pledged by Genoa to France, 233, 288
Costa Rica Packet, case of the, 217
Councillors of Legation, 472
Couriers, 472, 473, 475. See also Retinue of envoy
Courland merged in Russia, 124, 287
Court of Arbitration. See Arbitration.
Court of Justice, Central American, 525
Cracow, republic of, 151, 310
Creasy, Sir Edward Shepherd, 94
Crete:
international position of, 72, 144
possesses no right of legation, 441
Crews of men-of-war, their position when on land abroad, 508
Crime:
against the Law of Nations, 209
extraditable, 408
political, 415
Crimean war, 68
Cromwell, 172, 459
Crucée, Émeric, 58
Cruchaga, 97
Cuba:
independence of, 72, 181
intervention in, 190
Cuban debt, 132
Culte, droit du, 467
Cumberland, Duke of (1837), 433
Cussy, 102
Custom, as source of International Law, 16, 22, 23
Custom tariffs, Union for publication of, 616
office of the Union for publication of, 517
Customs Laws Consolidation Act, 608
Cutting, case of, 205
Cyprus, international position of, 233
D
Danish fleet, case of, 186
Danube, navigation on the, 71, 242
Danube Commission, 242, 513
Dardanelles, 247, 266, 267, 268, 321
Davis, 95
Dead Sea, 244, 321
Death:
of consul, 496
of diplomatic envoy, 480
De Bass, case of, 459
Debts to be taken over by the succeeding State, 131, 287
Declaration:
of Brussels, 37
of London, 78, 343, 537, 538, 560, 585, 595
of Paris, 12, 68, 537, 569, 588
of St. Petersburg, 70, 537, 590
Declarations, 551
three kinds of, 536
De facto subjects, 372
De Jager v. Attorney-General for Natal, 394
Delagoa Bay, case of, 314
Delaware, Bay of, 262, 263
Delinquency, international, 209
Délits complexes, 415
Delta, 300
Delusion and error in parties to treaties, 547
Deniers of the Law of Nations, 89
Denization, 381, 383
Denmark, 186
her sovereignty over the Baltic, 316
Deposed monarchs, 432
Deprivation, loss of nationality through, 378
De Recuperatione Terre Sancte, 58
Derby, Lord, 601
Dereliction of territory, 313
Deserters not to be extradited, 409
Despagnet, 95, 100
Despatches, sealed, transmission through belligerents' lines, 471
Diena, 96
Dignity of States, 174-177
Diplomacy, 438
language of, 439
Diplomatic corps, 446
Diplomatic envoys:
appointment of, 446-448
ceremonial and political, 443
classes of, 66, 443-481, 588
death of, 480
dismissal through delivery of passports, 455, 478
exempt from criminal and civil jurisdiction, 458, 464
exempt from police regulations, 466
exempt from subpœna as witnesses, 465
exempt from taxes, &c., 467
exterritoriality of, 460
family of, 474
found on enemy territory by a belligerent, 471
functions of, 453
immunity of domicile of, 461
injurious acts of, 215
interference with affairs of third States by, 472
interference in internal politics by, not permitted, 455
inviolability of, 457-466
official papers of, 447, 458, 478, 480
persons and qualifications of, 446
position of, 455
privileges of, 456
promotion of, 478
recall of, 477
reception of, 449-452
refusal to receive certain individuals as, 450
retinue of, 472-475
request for, and delivery of, passports, 478
right of chapel of, 467
self-jurisdiction of, 468
servants of, 474
suspension of mission of, 476
termination of mission of, 476-481
travelling through third States, 469
Diplomatic usages, 439
Discovery, inchoate title of, 294
Discretion of States:
to admit aliens, 391
to appoint envoys, 446
to conclude extradition treaties, 406
to expel aliens, 400
to protect their citizens abroad, 396
to receive and send envoys, 440
to recognise new heads of States, 426
Dissolution of treaties:
in contradistinction to fulfilment, 570
through mutual consent, 571
through vital change of circumstances, 572
through withdrawal by notice, 571
Dogger Bank, case of the, 219
Domicile:
of envoys abroad, 474
through naturalisation, 375, 379
Domin-Petrushévecz, 36
Doyen of the diplomatic corps, 446
Drago doctrine, 192
Droit:
d'aubaine, 398
de chapelle, 467
de convenance, 184
d'enquête, 336
d'étape, 278
de préséance, 172
de recousse, 347
de renvoi, 402
du culte, 467
Dubois, case of, 465
Dubois, Pierre, 58
Duke of Brunswick v. King of Hanover, 433
Duke of Cumberland, 433
Dum-dum bullets, 592
Dumont, 102
Dunkirk, fortification of, 183, 583
Duplessix, E., 37
E
Eastern countries:
Consuls in, 497
Protection of individuals in, 372, 395
Effect of treaties:
how affected by changes in government, 562
upon the parties, 561
upon the subjects of the parties, 562
upon third States, 563
Effective occupation. See Occupation.
Egypt, international position of, 142, 164, 498
international courts in, 498
possesses no right of legation, 441
Elizabeth, Queen, 318, 459
Emigration, 373
loss of nationality through, 378
Emperor William Canal, 248
Enclosure, 230
Enemy goods covered by neutral flag, 588
Enquête, droit d', 336
Envoys extraordinary, 444, 445
Equality of States, 20, 168
Equilibrium, 80. See also Balance of power.
Erie, Lake, 246, 247
Error and delusion in parties to treaties, 547
Estate duty, 398
Étape, droit d', 278
European Concert, 170
European Danube Commission, 513
Exchange, case of the, 507
Exchange of State territory, 287
Exequatur:
requisite for consuls, 489, 493, 494, 496
revoked, 426
Exclusion of aliens in the discretion of every State, 391
Expiration, loss of nationality through, 378
Expiration of treaties:
in contradistinction to fulfilment, 570
through expiration of time, 571
through resolutive condition, 571
Explosives, discharge of from balloons prohibited, 39
Expulsion of aliens:
from Great Britain, 399
from Switzerland, 399
how effected, 402
in the discretion of every State, 400
just causes of, 400
Exterritoriality, 460
of a monarch's retinue abroad, 431
of consuls in non-Christian States, 497
of diplomatic envoys and the members of their suite, 460-469
of monarchs and the members of their suite, 430
of men-of-war in foreign waters, 506
of presidents of republics, 434
of the wife of a monarch, 430, 431
Extinction of States, 124
Extraditable crimes, 409
Extradition:
conception of, 403
condition of, 409
effectuation of, 409
municipal laws concerning, 406
no obligation to grant, 404
of deserters, 409
of political criminals, 409, 411-422
treaties of, 392
treaties stipulating, how arisen, 404
Extradition Acts, British, 406, 409
F
Family of Nations:
conditions of membership of, 31, 166
definition of, 11
position of States in the, 165
Faröe Island Fisheries, 353
Fauchille, 95, 103
Faucigny, 279, 286
Federal States, 136
as regards appointment of envoys by, 138, 441
as regards appointment of consuls by, 489
as regards conclusion of treaties by, 544
Federalist, The, 115, 137
Female consuls, 488
Female diplomatic envoys, 446
Ferguson, 97
Fetiales, 51
Field, 36
Final Act of a Congress, 536
Finance Act (1894), 399
Fiore, 37, 96, 99
Fisheries:
around the Faröe Islands, 353
as servitudes, 278
in gulfs and bays, 265
in straits, 266
in the maritime belt, 258
in the North Sea, 316, 337, 349
in the Open Sea, 348-353
in the White Sea, 348
off the coast of Iceland, 348, 353
pearl, off Ceylon, 348
Fishery Commissions, 513
Fish in Africa, preservation of, 623
Fitzmaurice, Lord, 262
Flag:
abuse of, on the part of vessels, 336
claims of States to maritime, 326
claims of vessels to sail under a certain, 329
commercial, 327
enemy goods covered by neutral, 588
special, for bumboats, 351
verification of, 335, 337
Force majeure, 521, 524
Foreign Jurisdiction Act (1890), 395, 498
Foreign Offices, 435
Foreigner. See Alien.
Forerunners of Grotius, 83
Form of treaties, 550
France, as an International person, 122
Franchise de l'hôtel, 461
du quartier, 461
Franconia, case of, 29
Frankfort:
Peace Treaty of, 290, 291, 606
subjugation of, 304
Frederick III., Emperor of Germany, 316
Frederick William of Brandenburg, 464
Freedom of action necessary for consent to treaties, 547
French:
Convention, 35, 65
Constitution, 412
Revolution, 65, 98, 411
Frische Haff, 263
Fugitive Offenders Act (1881), 406
Fulfilment of treaties, 570
Full powers, 447, 544
Funck-Brentano, 95
Fundamental rights of States, 165
G
Gabella emigrationis, 398
Gallatin, case of the coachman of Mr., 474
Gareis, 96
General Act of a Congress, 536
Geneva Convention, 70, 569, 589
Convention for its adaptation to Naval War, 594
Geneva, Lake of, 246
Genoa, her sovereignty over the Ligurian Sea, 316
Gentilis, 84, 318
Geodetic Association, International, 625
Germany, member-States of:
competent to conclude treaties, 544
recognised as independent, 61, 66
Ghillany, 102
Gibraltar, 278
Good offices, 189, 568
Gore, American Commissioner, 513
Grand cabotage, 607
Great Powers, 3
hegemony of, 168
Greece, independence of, 68
Greeks, their rules for international relations, 49
Gregoire, Abbé, 35
Grotians, the, 92
Grotius, Hugo, 4, 59, 85-88, 283, 318, 438
Guarantee as a means of securing the performance of treaties, 567
Guarantee of government or dynasty, 191
Guarantee, treaties of, 599
collective, 601
conception of, 599
effect of, 600
pseudo-guarantees, 602-604
Guébriant, Madame de, 447
Gulfs, 262
Gulistan, Treaty of, 246
Gurney, case of, 473
Gyllenburg, case of, 459
H
Haggerty, case of, 489
Hague:
Convention concerning conversion of merchant ships into war ships, 505
Convention (1882), concerning fisheries in the North Sea, 349
Convention concerning laws and usages of war, 552, 569, 586
Convention (1887), concerning Liquor Traffic on the North Sea, 351
Conventions (1907), 207, 213, 218, 538
International Court of Arbitration at the, 74, 274, 278, 518
First Peace Conference at the, 12, 37, 73, 534, 589, 591
Second Peace Conference at the, 12, 38, 77, 365, 534, 589, 592
Haiti, 32
Half-Sovereign States, 141
cannot send or receive diplomatic envoys, 441
competent to conclude treaties, 544
may be parties to international congresses, 534
Hall, 94, 100
Halleck, 95, 99
Hamilton, A., 115
Hanover:
King of, 433, 450
subjugation of, 304
Hanseatic League, 56
Hartmann, 96, 100
Havana, Treaty of, 181
Hay-Pauncefote Treaty, 251, 557, 559, 563, 592
Hay-Varilla Treaty, 252, 254, 564
Heads of States, 425-428
competence of, 427
honours and privileges of, 428
injurious acts of, 214
legitimate, 426, 427
objects of Law of Nations, 427
position of, 427
predicates of, 174
privileges of, 428
recognition of new, 425
usurping, 427
Health Office, International, 518
Heffter, 96, 98, 509
Henry IV. of France, 58
Herring Fishery (Scotland) Act, 264
Hertslet, 103
Herzegovina, international position of, 233, 576
Hesse-Cassel, subjugation of, 304
Hinterland, 297
Hobbes, 4, 89, 112
Holland, Professor, 85
Holldack, 104
Holtzendorff, 96, 100
Holy Alliance, 66, 68, 196, 413, 544, 596
Holy Roman Empire, origin of doctrine of servitudes in the, 275
Holy See, 157-162, 441
cannot be party to international negotiation, 161, 441
receives ambassadors of first class, 444
Hostages as a means of securing the performance of treaties, 566
Hostilities:
convention relative to the opening of, 593
convention regarding enemy merchantmen, 593
Hovering Acts, 261
Huascar, the, 342
Hubertsburg, Peace treaty of, 64
Humanity, Unions in the interest of, 622, 623
Humbert of Italy, assassination of King, 418, 420
Hüningen, 279
Huron, Lake of, 246, 247
Hutcheson, 90
Hydrographic investigation of the North Sea, 626
I
Iceland, fisheries around, 348, 353
Illegal obligations, 550
Immoral obligations, 549
Immunity of domicile, 461, 474
Independence of States:
consequences of, 178
definition of, 177
restrictions upon, 180
violations of, 179
Indian vassal States of Great Britain, 142
Indians, Red, 35
"Indigenousness," international, 367
Individuals:
never subjects of International Law, 19, 362
objects of International Law, 366
stateless, 366, 387
In dubio mitius, 584
Industrial property, union for protection of, 616
office of, 517
Informing gun, the, 337
Inquiry, international commissions of, 512
Institute of International Law, the, 36
règlement concerning acts of insurgents, 224
règlement concerning consuls, 494
règlement concerning men-of-war in foreign ports, 508
règlement concerning utilisation of flow of rivers, 243
rules concerning aliens, 391, 401
rules concerning double and absent nationality, 390
rules concerning extradition, 410, 417
rules concerning immunities of diplomatic envoys, 450, 457
vœux concerning emigrants, 374
Instructions of diplomatic envoys, 448
Insurgents and rioters, 223
Insurgents recognised as a belligerent Power, 107, 119
do not possess the right of legation, 442
règlement of the Institute of International Law concerning acts of, 224
send public political agents, 509
Integrate territory, 230
Intercession, 189
Intercourse of States, 199-201, 328
International bureau of the International Court of Arbitration, 516, 519
International Code of Signals, 333
International Commission concerning sugar, 515
International Commission of the Congo, 514
International Commission of the proposed Channel Tunnel, memorandum
respecting, 359
International Commissions, 512
in the interest of foreign creditors, 515
of Inquiry, 512
International Council of Sanitation at Bucharest, 515
International Court of Arbitration at the Hague:
Awards of, 521
Bureau of, 519
deciding Tribunal of, 520
Permanent Council of, 518
International Court of Justice, proposed, 524
International Courts in Egypt, 498
International crimes, 209
International delinquencies, 209
International disputes, convention for the settlement of, 592
International Health Office, 518
International Jurists, schools of, 82, 89
International Law:
basis of, 15
basis of international relations, 67
codification of, 35
definition of, 3
development of, 45, 59
dominion of, 30
factors influencing the growth of, 24
legal force of, 4
periodicals relating to, 103, 104
relations between International Law and Municipal Law, 25
sources of, 20
States as subjects of, 19, 107
International Law Association, the, 37
International Maritime Committee, conference of (1910), 333, 339
International negotiation. See Negotiation.
International offices:
agriculture, 518
customs tariffs, 517
health, 518
industrial property, 517
maritime office at Zanzibar, 517
Pan-American Union, 517
post, 516
sugar, 517
telegraphs, 516
transports, 517
weights and measures, 516
works of literature and art, 516
International personality as a body of qualities, 166
definition of, 167
International persons, 107, 121, 125, 132, 154, 162
International Prize Court, 12, 522
convention concerning, 594
International Radiographic Convention, 236, 355
International Telegraph Union, 614
International transactions. See Transactions.
Internoscia, Jerome, 37
Internuncios, 445
Interpretatio authentica, 583
Interpretation of treaties, 582-586
Intervention, 81, 188
admissibility in default of right, 193
by right, 189
concerning a treaty concluded by other States, 568
concerning extradited criminals, 410
definition of, 188
for maintaining the balance of power, 193
in the interest of humanity, 194
on behalf of citizens abroad, 396
Ionian Islands, international position of, 146, 286
Inviolability:
of bearers of despatches, 512
of commissaries, 511
of consular buildings, 495
of consuls in non-Christian States, 497
of diplomatic envoys, 457-460
of members of international commissions, 514
of monarchs abroad, 429
of presidents of republics, 433, 434
of public political agents, 510
Irish Sea, 266
Isabella, Queen of Spain, 426, 432
Island, new-born, 301
Italy as a Great Power, 70, 171
her "Law of Guaranty" concerning the Pope, 158
J
Jacquin, case of, 416
Jade Bay, 263
James I., 317, 469
Japan, 33, 72, 171
and Russia, war between, 74
conflict with United States concerning Japanese school children in
California, 211
treaty of alliance with Great Britain, 565
text of the treaty of alliance, 596
Jassy, case of the, 507
Jay, John, 115
Jay Treaty, article concerning privileges of commissioners, 513
Jenkins, Sir Leoline, 89
Jenkinson, 103
Jews:
not a subject of International Law, 108
sometime excluded from Gibraltar, 278
their rules for international relations, 46
their treatment in Roumania and Russia, 369, 387, 392
Johann Friederich, case of the, 339
Journal Télégraphique, 516
Juges Consuls, 482
Jurisdiction, 201-205
exemption of envoys from, 458, 462-464
in actions for collision at sea, 334
in Straits, 266
of an Army of Occupation, 503
of monarchs abroad over their retinue, 430
of States over their citizens in Eastern countries, 395
on the Open Sea, 203, 329-339
over armed forces abroad, 501
over citizens abroad, 202
over crews of men-of-war when on land abroad, 508
over foreigners abroad, 204
over foreign vessels sailing under the flag of a State, 330
over monarchs as subjects, 433
over pirates, 345
within the maritime belt, 260
Jus:
albinagii, 398
avocandi, 371
fetiale, 51, 52
quarteriorum, 461
repraesentationis omnimodae, 427
sacrale, 51
sanguinis, 375
soli, 375
transitus innoxii, 470
K
Kainardgi, Treaty of, 441
Kalkstein, case of Colonel von, 464
Kamptz, 103
Kara Sea, 266
Kara Straits, 266
Kardis, Peace Treaty of, 63
Karlstad, Treaty of, 75
Katschenowsky, 36
Kattegat, the, 267
Keiley, case of, 450
Kelmis, 232
Kent, James, 95, 137
Kertch, Strait of, 267, 321
Khedive of Egypt, 498
Kiauchau leased to Germany, 233, 288
King's Chamber, 263
Klüber, 95, 98, 103
Kohler, 104
Korea:
extinction of treaties of, 128
merged in Japan, 287
Koszta, case of Martin, 388
Kurische Haff, 263
L
Lado Enclave, leased to Congo Free State, 234
Laibach, Congress of, 67
Lakes, 245
Landlocked seas, 245
Language of diplomacy, 439
Law of Guaranty, the Italian, 158
Law of Nations. See International Law.
Law of Nature, 86
Law-making treaties, 23, 541, 587-595
Lawrence, 94, 100
Lease of territory, 233, 288
Lebanon, the, 357
Le Droit d'Auteur, 517
Legation:
combined, 448
institution of, 435, 438
members of, 472-475
papers of the, 478
right of, 440
Legati a latere or de latere, 444
Leges Wisbuenses, 56
Legitimacy, doctrine of, 67
Legnano, 84
Leibnitz, 102
Lèse-majesté, 413, 415
Letters:
of credence, 447, 476, 477, 479, 509
of marque, 341, 342
of recall, 477
of recommendation, 509, 510
Lettre:
de créance, 447
de provision, 477
de récréance, 477
Levi, Leone, 37, 94
Liberia, 32
Lichtenstein, neither sends nor receives permanent diplomatic envoys, 449
Lieber, 36
Lincoln, assassination of, 418, 420
Liquor Traffic among North Sea Fishermen, Convention concerning, 351
Liszt, 96, 101
Literature, Union for the protection of works of, 516, 615
Log-book, 331
Locke, John, 112
Lombardy, ceded in 1859 by Austria to France, 288
Lomonaco, 96
London:
Conference of (1871), 70, 575
Convention of (1841), 268
Convention of (1884), 181
Convention of (1901), concerning fisheries, 353
Declaration of, 78, 343, 537, 538, 560, 585, 595
Declaration of, concerning Egypt and Morocco, 249
Naval Conference of, 38, 39, 43, 78, 595
Treaty (1831), 588
Treaty (1840), 555
Treaty (1841), 268, 368
Treaty (1867), 589
Treaty (1871), 247, 269, 325
Treaty (1883), 514, 587
Treaty (1906), 76, 156
Treaty (1908-9), 38
Lorenzelli, 160
Lorimer, James, 94, 100
Lorraine, 291
Loss of territory, 311
Louis XI. of France, 111
Louisiana boundary dispute, 295
Louter, De, 97
L'Union Postale, 516
Luxemburg, neutralisation of, 152, 289, 590
Lymoon Pass, 266
M
Macartney v. Garbutt, 450, 467
Mackintosh, Sir James, 412
McGregor, adventurer, 186
McLeod, case of, 501
Madagascar, annexed by France, 147, 539
Madison, J., 115
Magellan, Straits of, 267, 564
Maine, Sir Henry Sumner, 94
Maine, the river, 241
Mancini, 36
Manifest of cargo, 331
Mankind, rights of, 35, 367
Manning, 94, 98
Mardyck, port of, 583
Mare clausum, 318
Mare liberum, 318
Marini, Antoine, 58
Marino, international position of San, 146
Maritime belt, 255-261
Maritime ceremonials, 176, 258, 317, 326
Maritime Conference:
of London, 38, 39, 43, 78, 595
of Washington, 333
of Brussels, 333, 339
Maritime Conventions Bill, 333, 339
Maritime office at Zanzibar, 517
Marmora Sea, 321
Martens, Charles de, 92
Martens, F. von, 97, 100
Martens, G. F. von, 91, 102, 320
Mary, Queen, 317
Matzen, 97
Maxey, 95, 101
Means of securing performance of treaties: 565
guarantee, 567
hostages, 566
oaths, 565
occupation of territory, 566
pledge, 566
Measures. See Weights and Measures.
Mediation, 189, 568
Mediterranean, maintenance of status quo in the, 603
Mehemet Ali, 555
Mendoza, Spanish Ambassador, 318
case of, 459
Men-of-war:
admittance to maritime belt, 260
admittance to gulfs, 265
admittance to straits, 267
excluded from the Bosphorus, 268
in foreign waters, 504
in revolt, 504
on the Open Sea, 325, 326
position in foreign waters, 235, 506
position of crew on land abroad, 508
proof of character, 505
powers over merchantmen, 335, 337
shipwrecked, 504
Merchantmen. See Merchant ships and Navigation.
Merchant Shipping Act (1873), 333
Merchant Shipping Act (1894), 330, 331, 332, 333, 337
Merchant ships, conversion into war ships, 593
Merger of States, 124, 127, 372
Mérignhac, 95
Metternich, Prince, 249
Metric system, Convention concerning, 619
Meunier, case of, 415
Meuse, the, 241
Mines:
Convention concerning, 593
in the subsoil of the sea bed, 357
Ministers Plenipotentiary, 445
Ministers Resident, 445, 588
Miruss, 103
Mixed Commission of the Danube, 514
Mohammedan States, 30, 154
Mohl, 103
Moldavia, 441
Monaco, international position of, 146
Monaldeschi, case of, 431
Monarchs:
acts of violence committed by foreign, 431
consideration due to, 429
deposed or abdicated, 432
exterritoriality of, 430
in the service of, or subjects of, foreign Powers, 432
position of wife of, 430, 431
residence of, 430
retinue of, abroad, 431
sovereignty of, 428
travelling incognito, 431
Monetary Conventions, 619
Monetary Conference, International, 619
Monroe Doctrine, 67, 196
Montagnini, case of, 160
Montenegro:
independence of, 71;
restricted, 183
restricted to a commercial flag only, 327
Monti, case of Marquis de, 472
Moore, 95, 101
Moors in Gibraltar, 278
Moray Firth, case of the, 264
Moresnet, 232, 273
Morocco:
independence of, 75, 156, 164
protection of natives by foreign Powers, 372
treaties of (1863 and 1880), 373
Mortensen v. Peters, case of, 264
Moselle, the river, 241
Moser, 91
Most-favoured-nation clause, 563, 585, 606, 610
Motor vehicles, circulation of, 615
Motor Car (International Circulation) Act, 615
Mulhouse merged in 1798 in France, 287
Municipal Law:
in conflict with treaty obligations, 578
not identical with law in general, 9, 14
relations between International and Municipal Law, 25
respecting offences against foreign States, 222
Murdered rulers, 418, 420
Muscat Convention, 373
Muscat Dhows, case of the, 372
Muster Roll, 331
Mutinous crew, 343
N
Names of vessels, 332, 350
Napoleon I., 65, 183
Napoleon III., 416, 470
Narrow Seas:
sovereignty of Great Britain over the, 266, 316
Nassau, subjugation of, 304
National. See Citizen.
Nationality:
absent, 383, 387
acquisition of, 306, 374
conception of, 369
difficulties arising from double and absent nationalities, 388
double, 383, 384
function of, 370
loss of, 377
principle of, 68, 81
the link between individuals and International Law, 366
Natural boundaries, 270
Natural boundaries sensu politico, 273
Naturalisation Acts, British, 377, 381, 382, 383
Naturalisation in Great Britain, 382
Naturalisation:
acquisition of nationality by, 375
conception of, 379
conditions of, 380
loss of nationality through, 378, 381
object of, 380
through grant on application, 376
Naturalists, the, 89
Naval Conference of London, 38, 39, 43, 78, 595
Naval war code of the United States, 38
Navigation:
Commissions in the interest of, 513
in gulfs and bays, 265
in straits, 266
in the Suez Canal, 513, 514
on rivers, 240-243, 588
on the Congo, 514
on the Danube, 513
on the Open Sea, 319, 324
supervised by consuls, 491
through the Straits of Magellan, 267
within and through the maritime belt, 259, 326
See also Open Sea.
Navigation Act, 607
Neckar, river, 241
Negotiation:
by whom conducted, 531
conception of, 529
end and effect of, 532
envoy's function of, 453
form of, 531
parties to, 529
purpose of, 530
Negro Republics, 32
Nemo plus juris transferre potest, quam ipse habet, 288
Nemo potest exuere patriam, 381
Ne quis invitus civitate mutetur, neve in civitate maneat invitus, 381
Netherlands, revolt of, 312
Neutralisation of the Black Sea, 575
Neutralised States, 147-154
as regards State servitudes, 278
cannot cede territory without consent of the Powers, 286
can be parties to defensive alliances, 597
Neutral Powers in Naval War, Convention concerning the rights and duties
of, 594
Newfoundland fishery dispute, 278
New Hebrides, international position of, 232
Niemeyer, 103
Niger, river, 242
Night work of women, Convention for the prohibition of, 618
Nikitschenhow, case of, 463
Nillins, case of, 407
Non-Christian States, 154-156
Non-extradition:
Attentat clause of, 416, 421
principle of, 411-422
rationale for, 418
Russian proposal concerning, 416, 421
Swiss solution of, 417, 421
North Atlantic coast fisheries, case of, 275, 276, 278
North Channel, 266
North Pole, 292
North Sea fisheries, 337, 349
Convention for the regulation of, 349
North Sea:
hydrographic and biologic investigation of, 626
maintenance of status quo in the, 603
Norway, international position of, 75
Notarial functions:
of consuls, 492
of diplomatic envoys, 454
Notification:
as an international transaction, 537
of a change in the headship of a State, 425
of occupation, 294
Nuncios, 444
Nymeguen, Treaty of, 62
Nys, 97, 101, 103
Nystaedt, Treaty of, 63
O
Oath as a means of securing performance of treaties, 551, 565
Observation, envoy's function of, 454, 455
Occupation of territory, 291-298
as a means of securing the performance of treaties, 566
conception of, 291
extent of, 295
how affected, 292
notification of, 294
object of, 292
Office central des transports internationaux, 517
Offices, international, 515-518
Official publications, 620
Oléron, Laws of, 56
Oliva, Peace Treaty of, 63
Olivart, Marquis de, 97, 103
Omnia rex imperio possidet, singuli dominio, 283
Ompteda, 103
Ontario, Lake of, 246, 247
Open Sea, 315
ceremonials on, 326
claims to sovereignty over parts of, 316
collisions on, 333
conception of, 321
fisheries in the, 348-353
freedom of, 201, 323-328
in time of war, 325
jurisdiction on, 329-339
legal order on, 324
navigation on, 326
neutralisation of parts, 325
piracy on, 339-348
powers of men-of-war over merchantmen on the, 335, 337
rationale for freedom of, 327
right of pursuit on, 336
shipwreck and distress on, 339
subsoil beneath the sea bed, 292, 357-361
telegraph cables in, 353-355
verification of flag on, 337
wireless telegraphy on the, 355-357
See also Vessel.
Operation of nature as a mode of losing territory, 312
Oppenheim, Heinrich Bernard, 96
Oppenheim, L., 104
Option:
loss of nationality through, 378
of inhabitants of ceded territory to retain their old citizenship, 290
Orange Free State, 304
Oregon Boundary dispute, 295
Ottoman law (1863), concerning protégés, 373
P
Pacta sunt servanda, 573
Pacta tertiis nee nocent nec prosunt, 563
Pactum de contrahendo, 546
Paladini, case of Salvatore, 408
Panama:
international position of the Republic, 182, 312
intervention in, 191
Panama Canal, 251, 592
Pan-American Conferences, 72, 405, 517
Pan-American Union, 517, 624
Pando, 97
Panther, case of the, 219
Papal Nuncio. See Nuncio.
Papal States, 157, 450
Par in parem non habet imperium, 169, 430, 460
Paris:
Convention for the protection of submarine telegraph cables, 354
Declaration of, 12, 68, 537, 569, 588
Peace Treaty of (1763), 64, 183, 314
Peace Treaty of (1856), 68, 190, 247, 268, 277, 325, 514, 549, 564, 575,
578
Peace Treaty of (1898), 72
Parkinson v. Potter, 467
Parlement Belge, case of the, 507
Parliaments, injurious attitude of, 216
Participation of third States in treaties:
accession, 568
adhesion, 569
good offices and mediation, 568
intervention, 568
Parties to treaties, 543-548
Parts of treaties, 552
Part-Sovereign States, 441
Passports:
dismissal of diplomatic envoys through delivery of, 455
of courier, 475
of diplomatic envoy, 448
Passport of vessels, 331
Peace Conferences at the Hague. See Hague.
Peace Treaty of:
Aix-la-Chapelle (1668), 62
Aix-la-Chapelle (1748), 64, 183
Carlowitz, 63
Christiania, 75
Copenhagen, 63
Frankfort, 290, 291, 606
Hubertsburg, 64
Kainardgi (1774), 441
Kardis, 63
Karlstad, 75, 135
Munster, 241
Nymeguen, 62
Nystaedt, 63
Oliva, 63
Paris (1763), 64, 183, 314
(1856), 68, 190, 247, 268, 277, 325, 514, 549, 564, 575, 578
(1898), 72
Prague (1866), 364
Pyrenees, 62
Rastadt and Baden, 63
Roeskild, 63
Ryswick, 63
San Stefano, 71, 190, 549
Seoul, 75
Shimonoseki, 72
Tilsit, 183, 186
Utrecht, 63, 183, 278
Versailles (1783), 64, 278
Westminster (1674), 319
Westphalia, 61, 151, 435, 587
Pearl fishery off Ceylon and in the Persian Gulf, 348
Peary, Admiral, 292
Pelagic Sealing Conference, 352
Persia, international position of, 164
Persian Gulf, pearl fishery in the, 348
Persona grata of diplomatic envoy, 451
Personal supremacy:
consequences of, 178
definition of, 177
restrictions upon, 183
violations of, 179
Personal union of States, 133
Pertille, 96
Petit cabotage, 607
Pharmacopœial formulas, unification of, 622
Philip II. of Spain, 316
Philippine Islands, 72
Phillimore, Sir Robert, 94, 99
Phosphorus. See White phosphorus.
Phylloxera conventions, 618
Physically impossible obligations, 549
Piédelièvre, 95, 100
Pierantoni, 96
Pillau, alliance of, 551
Pinkney, American commissioner, 513
Piracy, 203, 340-348
Pirata non mutat dominium, 346
Pirates:
jurisdiction over, 345
may be pursued into the territorial maritime belt, 346
Plague. See Sanitary Conventions.
Platen-Hallermund, case of Count, 306
Plebiscite concerning cession of territory, 289, 364
Pledge, 233, 288, 566
Pleins pouvoirs, 447
Podiebrad, 58
Poelitz, 96
Poland, 566
partition of, 151, 310, 370
Polish revolution (1830), 413
Political agents:
public, 509
secret, 510
spies, 510
Political crime, conception of, 414-421
Political criminals, non-extradition of, 411-422
Pollicitations, 546
Polson, Archer, 94
Pope, position of the, 70, 157-162. See also Holy See.
Port Arthur leased to Russia, 233, 288
Porto Rico, 72
Portugal:
her claims to parts of the Open Sea, 316
international position of, 77
passage of troops through territory of, 280
republic proclaimed in, 76
Position:
of armed forces abroad, 501
of consuls, 493
of diplomatic envoys, 455
of diplomatic envoys as regards third States, 469
Positivists, the, 90, 98
Postal Union, Universal, 516
Powers of men-of-war over merchantmen of all nations, 335, 337
Pradier-Fodéré, 95, 100
Prague, Peace Treaty of (1866), 364
Precedence among envoys, 444
Predicates of heads of States, 174
Prescription, 308-311
Presidents of republics:
not sovereigns, 433
position of, 434
Private International Law:
conception of, 4
Hague Conventions concerning, 623, 624
Privateer, 341, 342
Privateering abolished by Declaration of Paris, 69, 588
Privileges of:
consuls, 494
couriers, 475
diplomatic envoys, 456
judges of the Prize Court, 522
members of legation, 473
members of the Tribunal of the Court of Arbitration, 521
Proconsul, 487
Projectiles, Convention concerning, 594
Protection, treaties of, 604
Protection:
envoy's function of, 454
of citizens abroad, 371, 372, 396, 492
Protectorate, 144
Protectorate as precursor of occupation, 296
Protégés, 371
Protest as an international transaction, 538
Protestant States, 449
Prussia becomes a Great Power, 64
Pseudo-guarantees, 602
Publications, official, 620
Public Health, international office of, 518, 621
Public political agents, 509
Pufendorf, 4, 89, 112
Punctationes, 546
Pursuit into the Open Sea, right of, 336
Pyrenees, Peace of the, 62
Q
Quabbe, 604
Quidquid est in territorio est etiam de territorio, 178, 231
Qui in territorio meo est, etiam meus subditus est, 231
R
Rachel, 90
Radiotelegraphy, 236
office of, 516
on the Open Sea, 355
Radiotelegraphic Convention, 355
Union, 614
Railway transports and freights, Union concerning, 614
Office of, 517
Rank of States, 171
Rastadt and Baden, Peace Treaty of, 63
Ratification of treaties:
by whom effected, 558
conception of, 553
effect of, 561
form of, 557
not absolutely necessary, 554
not to be partial or conditional, 559
rationale for, 554
refusal of, 556
space of time for, 555
Rationale for the freedom of the Open Sea, 327
Real Union of States, 123, 131, 134
Rebus sic stantibus, clause of, 280, 573-574
Recall of diplomatic envoys, 477
Reception of diplomatic envoys, 449, 451, 452
Reception of aliens:
may be received conditionally only, 392
no obligation to receive aliens, 390
Recognition:
of a change in the form of government, 120
of a change in the title of a State, 121, 173
of a new head of a State, 425
of a State through appointment of consul, 489
of States, 116-121
of insurgents as a belligerent Power, 119
Reconduction of foreigners, 402
Reconfirmation of treaties, 581
Recousse, droit de, 347
Red Indians, 35
Redintegration, acquisition of nationality by, 376
Redintegration of treaties, 581
Regents, 432
Registration of Aliens, Act for the, 398
Reign of Terror, 412
Release, loss of nationality through, 378
Religious disabilities, 364, 368
in Roumania, 388
Renewal of treaties, 580
Renunciation as an international transaction, 539
Renunciation of a treaty, 571
Renvoi, droit de, 402
Reprisals, 396
Republics:
American, 624
Italian, 438
Negro, 32
Presidents of, 433, 434
Rescission of treaties, 571
Res extra commercium, 323
Residents, 445
Responsales, 437
Responsibility of States, 206-225
for acts of courts of justice, 216
for acts of diplomatic envoys, 215
for acts of heads of States, 214
for acts of insurgents and rioters, 222
for acts of members of Governments, 215
for acts of officials and military forces, 218
for acts of Parliaments, 216
for acts of private individuals, 221
Res transit cum suo onere, 128, 288
Retinue of diplomatic envoys, 472-475
of monarchs abroad, 430
Retorsion, 391, 396, 400
Revenue Laws, 261
Revolt as a mode of losing territory, 312
Rhine, the river, 241
Rhodian laws, 56
Ricci-Busatti, 104
Right:
of asylum, 392, 461, 462
of chapel, 467
of contiguity, 295
of legation, 440
of protection over citizens abroad, 395, 400
of pursuit on the sea, 336
Right of legation:
by whom exercised, 442
conception, 440
not possessed by a revolutionary party recognised as a belligerent Power,
442
what States possess the, 441
Rights of mankind, 35, 367, 369
Rights of Nations, Declaration of, 35, 65
Rioters, règlement of the Institute of International Law concerning Acts of,
224
Ripperda, case of the Duke of, 461
Riquelme, 97
Rivers, 239
abandoned beds of, 302
international, 240
South American, 242
utilisation of the flow of, 243
See also Navigation.
Rivier, 97, 101, 103
Roeskild, Peace Treaty of, 63
Rolin, 103
Roman Catholic Church, 8
Roman Law, 283
Romans, their rules for international relations, 50
Rome, Congress at, 613
Ross, case of Bishop, 443
Roumania:
Convention of 1877 with Russia, 597
independence of, 71;
restricted, 183
treatment of Jews in, 388
Rousseau, J. J., 113
Rousset, 102
Royal honours, States enjoying, 172
Russian Ambassador, case of, 457
Rutherford, 90
Rymer, 102
Ryswick, Peace Treaty of, 63
S
Sà, case of Don Pantaleon, 475
Saalfeld, 96
Sackville, case of Lord, 455
St. George's Channel, 266
St. Lawrence, navigation on the river, 243
St. Petersburg:
Convention of, 614
Declaration of, 70, 537, 590
Sale of State territory, 287
Salvage, 339
Samos, international position of, 144
San Domingo, 32
San Marino, international position of, 146
San Stefano, Peace Treaty of, 71, 549, 568
Sandona, 96
Sanitary Conventions, 620
Sanitary laws, 261
Sanitation, International Council of, at Bucharest, 515
Santa Lucia, case of, 313
Sarawak, 282
Sarpi, Paolo, 319
Savarkar, case of, 410
Scheldt, the river, 241
Schmalz, 95
Schmauss, 102
Schnaebélé, case of, 511
Schools of International Jurists, 82, 89
Scientific Research, Unions in the interest of, 625, 626
Scott, James Brown, 104
Scott, Sir William, 98. See also Lord Stowell.
Sea-brief, 331
Sea-letter, 331
Seal fisheries in the Behring Sea, 351, 623
Sealing Conference, pelagic, 352, 623
Secret political agents, 510
Secret protocol, 555
Secretaries of Legation, 472
Secretary for Foreign Affairs, 435
Seismologic Association, International, 625
Selden, John, 89, 318
Self-jurisdiction:
of diplomatic envoys, 468
of monarchs abroad, 429, 430
Self-preservation, 184-187
Semi-sovereign. See Half- and Part-Sovereign.
Seneca, 230, 283
Senigallia, 104
Seoul, Peace of, 75
Servia, independence of, 71
restricted, 183
Servitudes, 273-281
Servitus in faciendo consistere nequit, 279
Servitutes juris gentium naturales, 274
Servitutes juris gentium voluntariae, 274
Shenandoah, case of the, 343
Shimonoseki, Peace Treaty of, 72, 568
Ship. See Vessel.
Ship-papers, 331, 491
Shipwreck on the Open Sea, 339
Siam, international position of, 164
Slave-trade, 66, 348, 368, 588, 591, 622
Smith, F. E., 94
Solent, the, 266
Solferino, battle of, 544
Sorel, Albert, 95
Soudan, international position of, 232
Soulé, case of, 470
Sound dues, 267
Sources of International Law, 20
South African Republic, 74, 142, 181, 304, 441
her alliance with the Orange Free State, 597
Sovereignty:
conception of, 110, 112, 177
divisibility of sovereignty contested, 110
history of meaning of sovereignty, 111-115
in contradistinction to suzerainty, 141
Sovereignty of monarchs, 428
Spheres of influence, 297
Spies, 510
Spirit-trade in certain parts of Africa, 591
Spitzbergen, 232
Sponsio, 545
Springer, case of, 461
State, conception of, 108
State property. See State territory.
States:
American, 163
a product of law, 14
changes in the conditions of, 121-125
confederated, 135
dignity of, 174-177, 456
equality of, 20, 168
European, 162
extinction of, 124
Federal, 130, 136
full- and not-full Sovereign, 109
heads of. See Heads of States.
independence of, 177
intercourse of, 166, 199-201
jurisdiction of, 201-205
neutralised, 147-154
new-born, 281
non-Christian, 154, 497
order of precedence of, 172
part-Sovereign, 141
personal supremacy of, 177
personal union of, 133
possessing royal honours, 172
rank of, 171
real union of, 123, 131, 134
recognition of, 116-121
responsibility of, 206-225
self-preservation of, 184-187
suzerain, 140, 190
territorial supremacy of, 177
titles of, 173
under protectorate, 144
vassal, 140
State servitudes, 273-281
State territory:
cession of, 285
definition of, 229
different kinds of, 230
different parts of, 235
dismembered, 230
importance of, 231
inalienability of parts of, 238
integrate, 230
loss of, 311-314
modes of acquiring, 281-284
servitudes on, 273-281
States under protectorate cannot cede territory without consent of the
superior State, 286
Status quo:
in the Baltic, 604
in the Mediterranean, 603
in the North Sea, 603, 604
treaties guaranteeing maintenance of, 602-604
Stettin, Bay of, 263
Stockton, Capt. C. H., 38
Stoerk, 103
Story, 137
Stowell, Lord, 98, 302
Straits, 265
of Kara, 266
of Kertch, 267
of Magellan, 267
of Yugor, 266
Strupp, 102
Stuart Pretender, the, 278
Suarez, 84
Subject of a State, his position when a diplomatic envoy of a foreign State,
450
Subjugation:
conception of, 302
consequences of, 305
in contradistinction to occupation, 303
justification of, 304
of the whole or of a part of enemy territory, 304
veto by third Powers, 307
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
Pharmacopœial formulas, 622, 623
Phylloxera epidemics, 618
Post, 613
Private International Law, 623
Public health, 621
Radiotelegraphy, 614
Railway transport, 614
Sanitation, 620
Science, 625
Seismology, 625
Submarine cables, 614
Sugar, 617
Telegraphs, 614
Transport, 614
White phosphorus, the use of, 618
White slave traffic, 622, 623
Wild animals in Africa, 623
Unions, object of, 612
United States of America:
become a Great Power, 70, 171, 312
become a member of Family of Nations, 64
intervene in the revolt of Cuba, 72
member-States cannot conclude treaties, 544
naval war code of, 38
Universal Postal Union, 613
Universal Telegraph Union, 614
Usage, international, in contradistinction to international custom, 22
Usurper, 427
Utrecht, Peace of, 63, 278, 583
V
Vaderland, case of the, 357
Vassal States, 140
cannot be parties to offensive alliances, 142, 597
cannot cede territory without consent of suzerain, 286
competent to appoint consuls, 488
competent to make treaties, 544
competent to send public political agents, 509
of Great Britain, Indian, 142
Vatican, the, 158, 449
Vattel, 93, 320, 405
Venezuela, blockade of (1902), 74
Venice:
ceded by Austria to France, 287
her sovereignty over the Adriatic Sea, 316
Verdun, Treaty of, 54
Verification of flag, 335
Verona, Congress of, 67
Versailles, Peace of, 64, 567
Vessels:
arrest of, 338
collision of, 333
distress of, 339, 356
names of, 332, 350
papers of, 331
search of, 338
territorial quality of, when on the Open Sea, 332
visit of, 337
See also Men-of-War.
Veto concerning a cession of territory, 289
concerning subjugation, 307
Vexaincourt, case of, 219
Vice-consul, 486
Victor Emanuel, King of Italy, 426
Victoria, 84
Vienna Congress, 65, 75
(1815), 241, 280, 444, 587, 588
Vienna, Treaty of (1878), 364
Villafranca, Preliminary Peace Treaty of, 544
Virginius, case of the, 187
Visit of vessels, 337
Vital change of circumstances, 573
Voidance of treaties:
through extinction of object concerned, 577
through extinction of one of the parties, 576
through impossibility of execution, 577
through realisation of purpose, 577
Völkerrechts-Indigenat, 367
W
Waddington, case of, 475
Walker, Thomas Alfred, 94, 100
Wallachia, 441
War, Convention concerning Laws of, 593
Convention concerning rights and duties of neutrals in, 593
Laws of (U.S.A.), 36
Laws of (U.S.A.) at sea, 38
Warsaw, non-admittance of consuls to, 488
Washburne, case of, 471
Washington:
Boundary Treaty of (1908), 272, 513
Congress of (1890), 304
Maritime Conference of (1889), 333
Pelagic Fishing Conference of, 352
Treaties (1854) and (1871), concerning navigation on the river St.
Lawrence, 243
Treaty (1857) concerning the Sound Dues, 268
Treaty (1901) concerning the Panama Canal, 251
Treaty (1904), 182
Waters, territorial. See Territorial waters.
Webster, Mr., U.S.A., Secretary of Foreign Affairs, 502
Weights and Measures, International Union of, 619
Office of the Union of, 516
Wei-Hai-Wei leased to Great Britain, 233, 288
Welwood, William, 318
Wenck, 102
Westlake, 94, 101
Westminster, Treaty of (1674), 319
Westphalian Peace, 61, 151, 435, 587
Wharton, 95, 100
Wheaton, 95, 98
White Phosphorus, Convention for the prohibition of the use of, 618
White Phosphorus Matches Prohibition Act, 618
White Sea fisheries, 348
White slave traffic, 623
Wild animals, &c., in Africa, preservation of, 623
Wildman, Richard, 94
William of Holland, case of King, 432
Wilson, 95, 101
Wireless telegraphy, 236
on the Open Sea, 355
Wisby, the maritime laws of, 56
Wismar, pledged by Sweden to Mecklenburg, 233, 288
Wolff, Christian, 92
Women. See Night-work of women.
Woolsey, 95, 103
Wrech, case of Baron de, 465
Y
Young Turks movement, 76
Yugor Straits, 266
Z
Zanzibar, international position of, 147
Zone for revenue and sanitary laws extended beyond the maritime belt, 261
Zouche, 88
Zuider Zee, 263
END OF VOL. I.
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