Chapter III: Important Groups of Treaties (1)

I

IMPORTANT LAW-MAKING TREATIES

[Sidenote: Important Law-making Treaties a product of the Nineteenth Century.]

§ 555. Law-making treaties[913] have been concluded ever since International Law came into existence. It was not until the nineteenth century, however, that such law-making treaties existed as are of world-wide importance. Although at the Congress at Münster and Osnabrück all the then existing European Powers, with the exception of Great Britain, Russia, and Poland, were represented, the Westphalian Peace of 1648, to which France, Sweden, and the States of the German Empire were parties, and which recognised the independence of Switzerland and the Netherlands, on the one hand, and, on the other, the practical sovereignty of the then existing 355 States of the German Empire, was not of world-wide importance, in spite of the fact that it contains various law-making stipulations. And the same may be said with regard to all other treaties of peace between 1648 and 1815. The first law-making treaty of world-wide importance was the Final Act of the Vienna Congress, 1815, and the last, as yet, is the Declaration of London of 1909. But it must be particularly noted that not all of these are _pure_ law-making treaties, since many contain other stipulations besides those which are law-making.

[Footnote 913: Concerning the conception of law-making treaties, see above, §§ 18 and 492.]

[Sidenote: Final Act of the Vienna Congress.]

§ 556. The Final Act of the Vienna Congress,[914] signed on June 9, 1815, by Great Britain, Austria, France, Portugal, Prussia, Russia, Spain, and Sweden-Norway, comprises law-making stipulations of world-wide importance concerning four points--namely, first, the perpetual neutralisation of Switzerland (article 118, No. 11); secondly, free navigation on so-called international rivers (articles 108-117); thirdly, the abolition of the negro slave trade (article 118, No. 15); fourthly, the different classes of diplomatic envoys (article 118, No. 16).

[Footnote 914: Martens, N.R. II. p. 379. See Angeberg, "Le congrès de Vienne et les traités de 1815" (4 vols., 1863).]

[Sidenote: Protocol of the Congress of Aix-la-Chapelle.]

§ 557. The Protocol of November 21 of the Congress of Aix-la-Chapelle,[915] 1818, signed by Great Britain, Austria, France, Prussia, and Russia, contains the important law-making stipulation concerning the establishment of a fourth class of diplomatic envoys, the so-called "Ministers Resident," to rank before the Chargés d'Affaires.

[Footnote 915: Martens, N.R. IV. p. 648. See Angeberg, op. cit.]

[Sidenote: Treaty of London of 1831.]

§ 558. The Treaty of London[916] of November 15, 1831, signed by Great Britain, Austria, France, Prussia, and Russia, comprises in its article 7 the important law-making stipulation concerning the perpetual neutralisation of Belgium.

[Footnote 916: Martens, N.R. XI. p. 390. See Descamps, "La neutralité de la Belgique" (1902).]

[Sidenote: Declaration of Paris.]

§ 559. The Declaration of Paris[917] of April 13, 1856, signed by Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, is a pure law-making treaty of the greatest importance, stipulating four rules with regard to sea warfare--namely, that privateering is abolished; that the neutral flag covers enemy goods with the exception of contraband of war; that neutral goods, contraband excepted, cannot be confiscated even when sailing under the enemy flag; that a blockade must be effective to be binding.

[Footnote 917: Martens, N.R.G. XV. p. 767.]

Through accession during 1856, the following other States have become parties to this treaty: Argentina, Belgium, Brazil, Chili, Denmark, Ecuador, Greece, Guatemala, Hayti, Holland, Peru, Portugal, Sweden-Norway, and Switzerland. Japan acceded in 1886, Spain and Mexico in 1907.

[Sidenote: Geneva Convention.]

§ 560. The Geneva Convention[918] of August 22, 1864, and that of July 6, 1906, are pure law-making treaties for the amelioration of the conditions of the wounded of armies in the field. The Geneva Convention of 1864 was originally signed only by Switzerland, Baden, Belgium, Denmark, France, Holland, Italy, Prussia, and Spain, but in time all other civilised States have acceded except Costa Rica, Lichtenstein, and Monaco. A treaty[919] containing articles additional to the Geneva Convention of 1864 was signed at Geneva on October 20, 1868, but was not ratified. A better fate was in store for the Geneva Convention[920] of 1906, which was signed by the delegates of thirty-five States, many of which have already granted ratification. Colombia, Costa Rica, Cuba, Nicaragua, Turkey, and Venezuela have already acceded. It is of importance to emphasise that the Convention of 1864 is not entirely replaced by the Convention of 1906, in so far as the former remains in force between those Powers which are parties to it without being parties to the latter. And it must be remembered that the Final Act of the First as well as of the Second Peace Conference contains a convention for the adaptation to sea warfare of the principles of the Geneva Convention.

[Footnote 918: Martens, N.R.G. XVIII. p. 607. See Lueder, "Die Genfer Convention" (1876), and Münzel, "Untersuchungen über die Genfer Convention" (1901).]

[Footnote 919: Martens, N.R.G. XVIII. p. 612.]

[Footnote 920: Martens, N.R.G. 3rd Ser. II. p. 323.]

[Sidenote: Treaty of London of 1867.]

§ 561. The Treaty of London[921] of May 11, 1867, signed by Great Britain, Austria, Belgium, France, Holland, Italy, Prussia, and Russia, comprises in its article 2 the important law-making stipulation concerning the perpetual neutralisation of Luxemburg.

[Footnote 921: Martens, N.R.G. XVIII. p. 445. See Wampach, "Le Luxembourg Neutre" (1900).]

[Sidenote: Declaration of St. Petersburg.]

§ 562. The Declaration of St. Petersburg[922] of November 29, 1868, signed by Great Britain, Austria-Hungary, Belgium, Denmark, France, Greece, Holland, Italy, Persia, Portugal, Prussia and other German States, Russia, Sweden-Norway, Switzerland, and Turkey--Brazil acceded later on--is a pure law-making treaty. It stipulates that projectiles of a weight below 400 grammes (14 ounces) which are either explosive or charged with inflammable substances shall not be made use of in war.

[Footnote 922: Martens, N.R.G. XVIII. p. 474.]

[Sidenote: Treaty of Berlin of 1878.]

§ 563. The Treaty of Berlin[923] of July 13, 1878, signed by Great Britain, Austria-Hungary, France, Germany, Italy, Russia, and Turkey, is law-making with regard to Bulgaria, Montenegro, Roumania, and Servia. It is of great importance in so far as the present phase of the solution of the Near Eastern Question arises therefrom, although Bulgaria became full-sovereign in 1908.

[Footnote 923: Martens, N.R.G. 2nd Ser. III. p. 449. See Mulas, "Il congresso di Berlino" (1878).]

[Sidenote: General Act of the Congo Conference.]

§ 564. The General Act of the Congo Conference[924] of Berlin of February 26, 1885, signed by Great Britain, Austria-Hungary, Belgium, Denmark, France, Germany, Holland, Italy, Portugal, Russia, Spain, Sweden-Norway, Turkey, and the United States of America, is a law-making treaty of great importance, stipulating: freedom of commerce for all nations within the basin of the river Congo; prohibition of slave-transport within that basin; neutralisation of Congo Territories; freedom of navigation for merchantmen of all nations on the rivers Congo and Niger; and, lastly, the obligation of the signatory Powers to notify to one another all future occupations on the coast of the African continent.

[Footnote 924: Martens, N.R.G. 2nd Ser. X. p. 414. See Patzig, "Die afrikanische Conferenz und der Congostaat" (1885).]

[Sidenote: Treaty of Constantinople of 1888.]

§ 565. The Treaty of Constantinople[925] of October 29, 1888, signed by Great Britain, Austria-Hungary, France, Germany, Holland, Italy, Russia, Spain, and Turkey, is a pure law-making treaty stipulating the permanent neutralisation of the Suez Canal and the freedom of navigation thereon for vessels of all nations.

[Footnote 925: Martens, N.R.G. 2nd Ser. XV. p. 557. See above, § 183.]

[Sidenote: General Act of the Brussels Anti-Slavery Conference.]

§ 566. The General Act of the Brussels Anti-Slavery Conference,[926] signed on July 2, 1890, by Great Britain, Austria-Hungary, Belgium, the Congo Free State, Denmark, France,[927] Germany, Holland, Italy, Persia, Portugal, Russia, Sweden-Norway, Spain, Turkey, the United States of America, and Zanzibar, is a law-making treaty of great importance which stipulates a system of measures for the suppression of the slave-trade in Africa, and, incidentally, restrictive measures concerning the spirit-trade in certain parts of Africa. To revise the stipulations concerning this spirit-trade the Convention of Brussels[928] of November 3, 1906, was signed by Great Britain, Germany, Belgium, Spain, the Congo Free State, France, Italy, Holland, Portugal, Russia, and Sweden.

[Footnote 926: Martens, N.R.G. 2nd Ser. XVI. p. 3, and XXV. p. 543. See Lentner, "Der afrikanische Sklavenhandel und die Brüsseler Conferenzen" (1891).]

[Footnote 927: But France only ratified this General Act with the exclusion of certain articles.]

[Footnote 928: Martens, N.R.G. 3rd Ser. I. p. 722.]

[Sidenote: Two Declarations of the First Hague Peace Conference.]

§ 567. The Final Act of the Hague Peace Conference[929] of July 29, 1899, was a pure law-making treaty comprising three separate conventions--namely, a convention for the peaceful adjustment of international differences, a convention concerning the law of land warfare, and a convention for the adaptation to maritime warfare of the principles of the Geneva Convention of 1864,--and three Declarations--namely, a Declaration prohibiting, for a term of five years, the discharge of projectiles and explosives from balloons, a Declaration concerning the prohibition of the use of projectiles the only object of which is the diffusion of asphyxiating or deleterious gases, and a Declaration concerning the prohibition of so-called dum-dum bullets. All these conventions, however, and the first of these declarations have been replaced by the General Act of the Second Hague Peace Conference, and only the last two declarations are still in force. All the States which were represented at the Conference are now parties to these declarations except the United States of America.

[Footnote 929: Martens, N.R.G. 2nd Ser. XXVI. p. 920. See Holls, "The Peace Conference at the Hague" (1900), and Mérignhac, "La Conférence internationale de la Paix" (1900).]

[Sidenote: Treaty of Washington of 1901.]

§ 568. The so-called Hay-Pauncefote Treaty of Washington[930] between Great Britain and the United States of America, signed November 18, 1901, although law-making between the parties only, is nevertheless of world-wide importance, because it neutralises permanently the Panama Canal, which is in course of construction, and stipulates free navigation thereon for vessels of all nations.[931]

[Footnote 930: Martens, N.R.G. 2nd Ser. XXX. p. 631.]

[Footnote 931: It ought to be mentioned that article 5 of the Boundary Treaty of Buenos Ayres, signed by Argentina and Chili on September 15, 1881--see Martens, N.R.G. 2nd Ser. XII. p. 491--contains a law-making stipulation of world-wide importance, because it neutralises the Straits of Magellan for ever and declares them open to vessels of all nations. See above, p. 267, note 2, and below, vol. II. § 72.]

[Sidenote: Conventions and Declaration of Second Hague Peace Conference.]

§ 568_a_. The Final Act of the Second Hague Peace Conference of October 18, 1907, is a pure law-making treaty of enormous importance comprising the following thirteen conventions[932] and a declaration:--

[Footnote 932: Only a greater number of States have as yet ratified the Conventions, but it is to be expected that many more will grant ratification in the course of time.]

(1) Convention for the Pacific Settlement of International Disputes. All States represented at the Conference signed except Nicaragua, but some signed with reservations only. Nicaragua acceded later.

(2) Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, signed by Great Britain, Germany, the United States of America, Argentina, Austria-Hungary, Bolivia, Bulgaria, Chili, Columbia, Cuba, Denmark, San Domingo, Ecuador, Spain, France, Greece, Guatemala, Haiti, Italy, Japan, Mexico, Montenegro, Norway, Panama, Paraguay, Holland, Peru, Persia, Portugal, Russia, Salvador, Servia, Turkey, Uruguay; China and Nicaragua acceded later. Some of the South American States signed with reservations.

(3) Convention relative to the Opening of Hostilities. All the States represented at the Conference signed except China and Nicaragua; both, however, acceded later.

(4) Convention concerning the Laws and Usages of War on Land. All the States represented at the Conference signed except China, Spain, and Nicaragua, but Nicaragua acceded later. Some States made reservations in signing.

(5) Convention concerning the Rights and Duties of Neutral Powers and Persons in Case of War on Land. All the States represented at the Conference signed except China and Nicaragua, but some States made reservations. Both China and Nicaragua acceded later.

(6) Convention relative to the Status of Enemy Merchantmen at the Outbreak of Hostilities. All the Powers represented at the Conference signed except the United States of America, China, and Nicaragua, but the last named acceded later. Some States made reservations in signing.

(7) Convention relative to the Conversion of Merchant Ships into War Ships. All the Powers represented at the Conference signed except the United States of America, China, San Domingo, Nicaragua, and Uruguay, but Nicaragua acceded later. Turkey made a reservation in signing.

(8) Convention relative to the Laying of Automatic Submarine Contact Mines. The majority of the States represented at the Conference signed. China, Spain, Montenegro, Nicaragua, Portugal, Russia, and Sweden have not signed, but Nicaragua acceded later. Some States made reservations.

(9) Convention respecting Bombardments by Naval Forces in Time of War. Except China, Spain, and Nicaragua all the States represented at the Conference signed, but China and Nicaragua acceded later. Some States made reservations.

(10) Convention for the Adaptation to Naval War of the Principles of the Geneva Convention. All the Powers represented at the Conference signed except Nicaragua, but some made reservations. Nicaragua acceded later.

(11) Convention relative to certain Restrictions on the Exercise of the Right of Capture in Maritime War. All States represented at the Conference signed except China, Montenegro, Nicaragua, and Russia, but Nicaragua acceded later.

(12) Convention relative to the Creation of an International Prize Court. The majority of the States represented at the Conference signed. Brazil, China, San Domingo, Greece, Luxemburg, Montenegro, Nicaragua, Roumania, Russia, Servia, and Venezuela have not signed, and some of the smaller signatory Powers made a reservation with regard to the composition of the Court according to article 15 of the Convention.

(13) Convention concerning the Rights and Duties of Neutral Powers in Naval War. All the States represented at the Conference signed except the United States of America, China, Cuba, Spain, and Nicaragua. Some States made reservations. But the United States of America, China, and Nicaragua acceded later.

(14) Declaration prohibiting the Discharge of Projectiles and Explosives from Balloons. Only twenty-seven of the forty-four States represented at the Conference signed. Germany, Chili, Denmark, Spain, France, Guatemala, Italy, Japan, Mexico, Montenegro, Nicaragua, Paraguay, Roumania, Russia, Servia, Sweden, and Venezuela refused to sign, but Nicaragua acceded later.

[Sidenote: The Declaration of London.]

§ 568_b_. The Declaration of London[933] of February 26, 1909, concerning the Laws of Naval War, is a pure law-making treaty of the greatest importance. All the ten Powers represented at the Conference of London which produced this Declaration signed[934] it--namely, Great Britain, Germany, the United States of America, Austria-Hungary, Spain, France, Italy, Japan, Holland, and Russia, but it is not yet ratified.

[Footnote 933: On account of the opposition to the Ratification of the Declaration of London which arose in England, the English literature on the Declaration is already very great. The more important books are the following:--Bowles, "Sea Law and Sea Power" (1910); Baty, "Britain and Sea Law" (1911); Bentwich, "The Declaration of London" (1911); Bray, "British Rights at Sea" (1911); Bate, "An Elementary Account of the Declaration of London" (1911); Civis, "Cargoes and Cruisers" (1911); Holland, "Proposed Changes in Naval Prize Law" (1911); Cohen, "The Declaration of London" (1911). See also Baty and Macdonell in the Twenty-sixth Report (1911) of the International Law Association. There are also innumerable articles in periodicals.]

[Footnote 934: There is no doubt that the majority, if not all, of the States concerned will in time accede to the Declaration of London.]

II

ALLIANCES

Grotius, II. c. 15--Vattel, III. §§ 78-102--Twiss, I. §
246--Taylor, §§ 347-349--Wheaton, §§ 278-285--Bluntschli, §§
446-449--Heffter, § 92--Geffcken in Holtzendorff, III. pp.
115-139--Ullmann, § 82--Bonfils, Nos. 871-881--Despagnet, No.
459--Mérignhac, II. p. 683--Nys, III. pp. 554-557--Pradier-Fodéré,
II. Nos. 934-967--Rivier, II. pp. 111-116--Calvo, III. §§
1587-1588--Fiore, II. No. 1094, and Code, Nos. 893-899--Martens,
I. § 113--Rolin-Jaequemyns in R.I. XX. (1888), pp. 5-35--Erich,
"Ueber Allianzen und Allianzverhältnisse nach heutigem
Völkerrecht" (1907).

[Sidenote: Conception of Alliances.]

§ 569. Alliances in the strict sense of the term are treaties of union between two or more States for the purpose of defending each other against an attack in war, or of jointly attacking third States, or for both purposes. The term "alliance" is, however, often made use of in a wider sense, and it comprises in such cases treaties of union for various purposes. Thus, the so-called "Holy Alliance," concluded in 1815 between the Emperors of Austria and Russia and the King of Prussia, and afterwards joined by almost all of the Sovereigns of Europe, was a union for such vague purposes that it cannot be called an alliance in the strict sense of the term.

History relates innumerable alliances between the several States. They have always played, and still play, an important part in politics. At the present time the triple alliance between Germany, Austria, and Italy since 1879 and 1882, the alliance between Russia and France since 1899, and that between Great Britain and Japan since 1902, renewed in 1905 and 1911, are illustrative examples.[935]

[Footnote 935: The following is the text of the Anglo-Japanese treaty of Alliance of 1911:--

The Government of Great Britain and the Government of Japan, having in view the important changes which have taken place in the situation since the conclusion of the Anglo-Japanese agreement of the 12th August 1905, and believing that a revision of that Agreement responding to such changes would contribute to general stability and repose, have agreed upon the following stipulations to replace the Agreement above mentioned, such stipulations having the same object as the said Agreement, namely:--

(_a_) The consolidation and maintenance of the general peace in the regions of Eastern Asia and of India;

(_b_) The preservation of the common interests of all Powers in China by insuring the independence and integrity of the Chinese Empire and the principle of equal opportunities for the commerce and industry of all nations in China;

(_c_) The maintenance of the territorial rights of the High Contracting Parties in the regions of Eastern Asia and of India, and the defence of their special interests in the said regions:--

ARTICLE I.

It is agreed that whenever, in the opinion of either Great Britain or Japan, any of the rights and interests referred to in the preamble of this Agreement are in jeopardy, the two Governments will communicate with one another fully and frankly, and will consider in common the measures which should be taken to safeguard those menaced rights or interests.

ARTICLE II.

If by reason of unprovoked attack or aggressive action, wherever arising, on the part of any Power or Powers, either High Contracting Party should be involved in war in defence of its territorial rights or special interests mentioned in the preamble of this Agreement, the other High Contracting Party will at once come to the assistance of its ally, and will conduct the war in common, and make peace in mutual agreement with it.

ARTICLE III.

The High Contracting Parties agree that neither of them will, without consulting the other, enter into separate arrangements with another Power to the prejudice of the objects described in the preamble of this Agreement.

ARTICLE IV.

Should either High Contracting Party conclude a treaty of general arbitration with a third Power, it is agreed that nothing in this Agreement shall entail upon such Contracting Party an obligation to go to war with the Power with whom such treaty of arbitration is in force.

ARTICLE V.

The conditions under which armed assistance shall be afforded by either Power to the other in the circumstances mentioned in the present Agreement, and the means by which such assistance is to be made available, will be arranged by the Naval and Military authorities of the High Contracting Parties, who will from time to time consult one another fully and freely upon all questions of mutual interest.

ARTICLE VI.

The present Agreement shall come into effect immediately after the date of its signature, and remain in force for ten years from that date.

In case neither of the High Contracting Parties should have notified twelve months before the expiration of the said ten years the intention of terminating it, it shall remain binding until the expiration of one year from the day on which either of the High Contracting Parties shall have denounced it. But if, when the date fixed for its expiration arrives, either ally is actually engaged in war, the alliance shall, _ipso facto_, continue until peace is concluded.

In faith whereof the undersigned, duly authorised by their respective Governments, have signed this Agreement, and have affixed thereto their Seals.

Done in duplicate at London, the 13th day of July 1911.]

[Sidenote: Parties to Alliance.]

§ 570. Subjects of alliances are said to be full-Sovereign States only. But the fact cannot be denied that alliances have been concluded by States under suzerainty. Thus, the convention of April 16, 1877, between Roumania, which was then under Turkish suzerainty, and Russia, concerning the passage of Russian troops through Roumanian territory in case of war with Turkey, was practically a treaty of alliance.[936] Thus, further, the former South African Republic, although, at any rate according to the views of the British Government, a half-Sovereign State under British suzerainty, concluded an alliance with the former Orange Free State by treaty of March 17, 1897.[937]

[Footnote 936: See Martens, N.R.G. 2nd Ser. III. p. 182.]

[Footnote 937: See Martens, N.R.G. 2nd Ser. XXV. p. 327.]

A neutralised State can be the subject of an alliance for the purpose of defence, whereas the entrance into an offensive alliance on the part of such State would involve a breach of its neutrality.

[Sidenote: Different kinds of Alliances.]

§ 571. As already mentioned, an alliance may be offensive or defensive, or both. All three kinds may be either general alliances, in which case the allies are united against any possible enemy whatever, or particular alliances against one or more individual enemies. Alliances, further, may be either permanent or temporary, and in the latter case they expire with the period of time for which they were concluded. As regards offensive alliances, it must be emphasised that they are valid only when their object is not immoral.[938]

[Footnote 938: See above, § 505.]

[Sidenote: Conditions of Alliances.]

§ 572. Alliances may contain all sorts of conditions. The most important are the conditions regarding the assistance to be rendered. It may be that assistance is to be rendered with the whole or a limited part of the military and naval forces of the allies, or with the whole or a limited part of their military or with the whole or a limited part of their naval forces only. Assistance may, further, be rendered in money only, so that one of the allies is fighting with his forces while the other supplies a certain sum of money for their maintenance. A treaty of alliance of such a kind must not be confounded with a simple treaty of subsidy. If two States enter into a convention that one of the parties shall furnish the other permanently in time of peace and war with a limited number of troops in return for a certain annual payment, such convention is not an alliance, but a treaty of subsidy only. But if two States enter into a convention that in case of war one of the parties shall furnish the other with a limited number of troops, be it in return for payment or not, such convention really constitutes an alliance. For every convention concluded for the purpose of lending succour in time of war implies an alliance. It is for this reason that the above-mentioned[939] treaty of 1877 between Russia and Roumania concerning the passage of Russian troops through Roumanian territory in case of war against Turkey was really a treaty of alliance.

[Footnote 939: See above, § 570.]

[Sidenote: _Casus Foederis._]

§ 573. _Casus foederis_ is the event upon the occurrence of which it becomes the duty of one of the allies to render the promised assistance to the other. Thus in case of a defensive alliance the _casus foederis_ occurs when war is declared or commenced against one of the allies. Treaties of alliance very often define precisely the event which shall be the _casus foederis_, and then the latter is less exposed to controversy. But, on the other hand, there have been many alliances concluded without such specialisation, and, consequently, disputes have arisen later between the parties as to the _casus foederis_.

That the _casus foederis_ is not influenced by the fact that a State, subsequent to entering into an alliance, concludes a treaty of general arbitration with a third State, has been pointed out above, § 522.

III

TREATIES OF GUARANTEE AND OF PROTECTION

Vattel, II. §§ 235-239--Hall, § 113--Phillimore, II. §§
56-63--Twiss, I. § 249--Halleck, I. p. 285--Taylor, §§
350-353--Wheaton, § 278--Bluntschli, §§ 430-439--Heffter, §
97--Geffcken in Holtzendorff, III. pp. 85-112--Liszt, §
22--Ullmann, § 83--Fiore, Code, Nos. 787-791--Bonfils, Nos.
882-893--Despagnet, No. 461--Mérignhac, II. p. 681--Nys, III. pp.
36-41--Pradier-Fodéré, II. Nos. 969-1020--Rivier, II. pp.
97-105--Calvo, III. §§ 1584-1585--Martens, I. § 115--Neyron,
"Essai historique et politique sur les garanties"
(1779)--Milovanovitch, "Des traités de garantie en droit
international" (1888)--Erich, "Ueber Allianzen und
Allianzverhältnisse nach heutigem Völkerrecht" (1907)--Quabbe,
"Die völkerrechtliche Garantie" (1911).

[Sidenote: Conception and Object of Guarantee Treaties.]

§ 574. Treaties of guarantee are conventions by which one of the parties engages to do what is in its power to secure a certain object to the other party. Guarantee treaties may be mutual or unilateral. They may be concluded by two States only, or by a number of States jointly, and in the latter case the single guarantors may give their guarantee severally or collectively or both. And the guarantee may be for a certain period of time only or permanent.

The possible objects of guarantee treaties are numerous.[940] It suffices to give the following chief examples: the performance of a particular act on the part of a certain State, as the discharge of a debt or the cession of a territory; certain rights of a State; the undisturbed possession of the whole or a particular part of the territory; a particular form of Constitution; a certain status, as permanent neutrality[941] or independence[942] or integrity[943]; a particular dynastic succession; the fulfilment of a treaty concluded by a third State.

[Footnote 940: The important part that treaties of guarantee play in politics may be seen from a glance at Great Britain's guarantee treaties. See Munro, "England's Treaties of Guarantee," in _The Law Magazine and Review_, VI. (1881), pp. 215-238.]

[Footnote 941: See above, § 95.]

[Footnote 942: Thus Great Britain, France, and Russia have guaranteed, by the Treaty with Denmark of July 13, 1863, the independence (but also the monarchy) of Greece (Martens, N.R.G. XVII. Part. II. p. 79). The United States of America has guaranteed the independence of Cuba by the Treaty of Havana of May 22, 1903 (Martens, N.R.G. 2nd Ser. XXXII. p. 79), and of Panama by the Treaty of Washington of November 18, 1903 (Martens, N.R.G. 2nd Ser. XXXI. p. 599).]

[Footnote 943: Thus the integrity of Norway is guaranteed by Great Britain, Germany, France, and Russia by the Treaty of Christiania of November 2, 1907; see Martens, N.R.G. 3rd Ser. II. p. 9. A condition of this integrity is that Norway does not cede any part of her territory to any foreign Power.]

[Sidenote: Effect of Treaties of Guarantee.]

§ 575. The effect of guarantee treaties is the creation of the duty of the guarantors to do what is in their power in order to secure the guaranteed objects. The compulsion to be applied by a guarantor for that purpose depends upon the circumstances; it may eventually be war. But the duty of the guarantor to render, even by compulsion, the promised assistance to the guaranteed depends upon many conditions and circumstances. Thus, first, the guaranteed must request the guarantor to render assistance. When, for instance, the possession of a certain part of its territory is guaranteed to a State which after its defeat in a war with a third State agrees as a condition of peace to cede such piece of territory to the victor without having requested the intervention of the guarantor, the latter has neither a right nor a duty to interfere. Thus, secondly, the guarantor must at the critical time be able to render the required assistance. When, for instance, its hands are tied through waging war against a third State, or when it is so weak through internal troubles or other factors that its interference would expose it to a serious danger, it is not bound to fulfil the request for assistance. So too, when the guaranteed has not complied with previous advice given by the guarantor as to the line of its behaviour, it is not the guarantor's duty to render assistance afterwards.

It is impossible to state all the circumstances and conditions upon which the fulfilment of the duty of the guarantor depends, as every case must be judged upon its own merits. And it is certain that, more frequently than in other cases, changes in political constellations and the general developments of events may involve such vital change of circumstances as to justify[944] a State in refusing to interfere in spite of a treaty of guarantee. It is for this reason that treaties of guarantee to secure permanently a certain object to a State are naturally of a more or less precarious value to the latter. The practical value, therefore, of a guarantee treaty, whatever may be its formal character, would as a rule seem to extend to the early years only of its existence while the original conditions still obtain.

[Footnote 944: See above, § 539.]

[Sidenote: Effect of Collective Guarantee.]

§ 576. In contradistinction to treaties constituting a guarantee on the part of one or more States severally, the effect of treaties constituting a _collective_ guarantee on the part of several States requires special consideration. On June 20, 1867, Lord Derby maintained[945] in the House of Lords concerning the collective guarantee by the Powers of the neutralisation of Luxemburg that in case of a collective guarantee each guarantor had only the duty to act according to the treaty when all the other guarantors were ready to act likewise; that, consequently, if one of the guarantors themselves should violate the neutrality of Luxemburg, the duty to act according to the treaty of collective guarantee would not accrue to the other guarantors. This opinion is certainly not correct,[946] and I do not know of any publicist who would or could approve of it. There ought to be no doubt that in a case of collective guarantee one of the guarantors alone cannot be considered bound to act according to the treaty of guarantee. For a collective guarantee can have the meaning only that the guarantors should act in a body. But if one of the guarantors themselves violates the object of his own guarantee, the body of the guarantors remains, and it is certainly their duty to act against such faithless co-guarantor. If, however, the majority,[947] and therefore the body of the guarantors, were to violate the very object of their guarantee, the duty to act against them would not accrue to the minority.

[Footnote 945: Hansard, vol. 183, p. 150.]

[Footnote 946: See Hall, § 113; Bluntschli, § 440; and Quabbe, op. cit. pp. 149-159.]

[Footnote 947: See against this statement Quabbe, op. cit. p. 158.]

Different, however, is the case in which a number of Powers have _collectively and severally_ guaranteed a certain object. Then, not only as a body but also individually, it is their duty to interfere in any case of violation of the object of guarantee.

[Sidenote: Pseudo-Guarantees.]

§ 576_a_. Different from real Guarantee Treaties are such treaties as declare the policy of the parties with regard to the maintenance of their territorial _status quo_. Whereas treaties guaranteeing the maintenance of the territorial _status quo_ engage the guarantors to do what they can to maintain such _status quo_, treaties declaring the policy of the parties with regard to the maintenance of their territorial _status quo_ do not contain any legal engagements, but simply state the firm resolution of the parties to uphold the _status quo_. In contradistinction to real guarantee treaties, such treaties declaring the policy of the parties may fitly be called Pseudo-Guarantee Treaties, and although their political value is very great, they have scarcely any legal importance. For the parties do not bind themselves to pursue a policy for maintaining the _status quo_, they only declare their firm resolution to that end. Further, the parties do not engage themselves to uphold the _status quo_, but only to communicate with one another, in case the _status quo_ is threatened, with a view to agreeing upon such measures as they may consider advisable for the maintenance of the _status quo_. To this class of pseudo-guarantee treaties belong:--

(1) The Declarations[948] exchanged on May 16, 1907, between France and Spain on the one hand, and, on the other hand, between Great Britain and Spain, concerning the territorial _status quo_ in the Mediterranean. Each party declares that its general policy with regard to the Mediterranean is directed to the maintenance of the territorial _status quo_, and that it is therefore resolved to preserve intact its rights over its insular and maritime possessions within the Mediterranean. Each party declares, further, that, should circumstances arise which would tend to alter the existing territorial _status quo_, it will communicate with the other party in order to afford it the opportunity to concert, if desired, by mutual agreement the course of action which the two parties shall adopt in common.

[Footnote 948: See Martens, N.R.G. 2nd Ser. XXXV. p. 692, and 3rd Ser. I. p. 3.]

(2) The Declarations[949] concerning the maintenance of the territorial _status quo_ in the North Sea, signed at Berlin on April 23, 1908, by Great Britain, Germany, Denmark, France, Holland, and Sweden, and concerning the maintenance of the territorial _status quo_ in the Baltic, signed at St. Petersburg, likewise on April 23, 1908, by Germany, Denmark, Russia, and Sweden. The parties declare their firm resolution to preserve intact the rights of all the parties over their continental and insular possessions within the region of the North Sea, and of the Baltic respectively. And the parties concerned further declare that, should the present territorial _status quo_ be threatened by any events whatever, they will enter into communication with one another with a view to agreeing upon such measures as they may consider advisable in the interest of the maintenance of the _status quo_.

[Footnote 949: See Martens, N.R.G. 3rd Ser. I. pp. 17 and 18.]

There is no doubt that the texts of the Declarations concerning the _status quo_ in the North Sea and the Baltic stipulate a stricter engagement of the respective parties than the texts of the Declarations concerning the _status quo_ in the Mediterranean, but neither[950] of them comprises a real legal guarantee.

[Footnote 950: Whereas Quabbe (p. 97, note 1), correctly denies the character of a real guarantee to the Declarations concerning the Mediterranean, he (p. 105) considers the Declarations concerning the North Sea and the Baltic real Guarantee Treaties.]

[Sidenote: Treaties of Protection.]

§ 577. Different from guarantee treaties are treaties of protection. Whereas the former constitute the guarantee of a certain object to the guaranteed, treaties of protection are treaties by which strong States simply engage to protect weaker States without any guarantee whatever. A treaty of protection must, however, not be confounded with a treaty of protectorate.[951]

[Footnote 951: See above, § 92.]

IV

COMMERCIAL TREATIES

Taylor, 354--Moore, V. §§ 765-769--Melle in Holtzendorff, III. pp.
143-256--Liszt, § 28--Ullmann, § 145--Bonfils, No. 918--Despagnet,
No. 462--Pradier-Fodéré, IV. Nos. 2005-2033--Mérignhac, II. pp.
688-693--Rivier, I. pp. 370-374--Fiore, II. Nos. 1065-1077, and
Code, Nos. 848-854--Martens, II. §§ 52-55--Steck, "Versuch über
Handels- und Schiffahrtsverträge" (1782)--Schraut, "System der
Handelsverträge und der Meistbegünstigung" (1884)--Veillcovitch,
"Les traités de commerce" (1892)--Nys, "Les origines du droit
international" (1894), pp. 278-294--Herod, "Favoured Nation
Treatment" (1901)--Calwer, "Die Meistbegünstigung in den
Vereinigten Staaten von Nord-America" (1902)--Glier, "Die
Meistbegünstigungs-Klausel" (1906)--Cavaretta, "La clausola della
natiozione più favorita" (1906)--Barclay, "Problems of
International Law and Diplomacy" (1907), pp. 137-142--Hornbeck,
"The Most-Favoured Nation Clause" (1910), and in A.J. III. (1909),
pp. 394-422, 619-647, and 798-827--Lehr in R.I. XXV. (1893), pp.
313-316--Visser in R.I. 2nd Ser. IV. (1902), pp. 66-87, 159-177,
and 270-280--Lehr in R.I. 2nd Ser. XII. (1910), pp.
657-668--Shepheard in _The Journal of the Society of Comparative
Legislation_, New Series, III. (1901), pp. 231-237, and V. (1903),
pp. 132-136--Oppenheim in _The Law Quarterly Review_, XXIV.
(1908), pp. 328-334.

[Sidenote: Commercial Treaties in General.]

§ 578. Commercial treaties are treaties concerning the commerce and navigation of the contracting States and concerning the subjects of these States who are engaged in commerce and navigation. Incidentally, however, they also contain clauses concerning consuls and various other matters. They are concluded either for a limited or an unlimited number of years, and either for the whole territory of one or either party or only for a part of such territory--_e.g._, by Great Britain for the United Kingdom alone, or for Canada alone, and the like. All full-Sovereign States are competent to enter into commercial treaties, but it depends upon the special case whether half- and part-Sovereign States are likewise competent. Although competent to enter upon commercial treaties, a State may, by an international compact, be restricted in its freedom with regard to its commercial policy. Thus, according to articles 1 to 5 of the General Act of the Berlin Congo Conference of February 26, 1885, all the Powers which have possessions in the Congo district must grant complete freedom of commerce to all nations. Again, to give another example, France and Germany are by article 11 of the Peace of Frankfort of May 10, 1871, compelled to grant one another most-favoured-nation treatment in their commercial relations, in so far as favours which they grant to Great Britain, Belgium, Holland, Switzerland, Austria, and Russia are concerned.

The details of commercial treaties are for the most part purely technical and are, therefore, outside the scope of a general treatise on International Law. There are, however, two points of great importance which require discussion--namely, the meaning of coasting trade and of the most-favoured-nation clause.

[Sidenote: Meaning of Coasting Trade in Commercial Treaties.]

§ 579. The meaning of the term coasting-trade[952] in commercial treaties must not be confounded with its meaning in International Law generally. The meaning of the term in International Law becomes apparent through its synonym _cabotage_--that is, navigation from cape to cape along the coast combined with trading between the ports of the coast concerned without going out into the Open Sea. Therefore, trade between Marseilles and Nice, between Calais and Havre, between London and Liverpool, and between Dublin and Belfast is coasting-trade, but trade between Marseilles and Havre, and between London and Dublin is not. It is a universally recognised rule[953] of International Law that every littoral State can exclude foreign merchantmen from the _cabotage_ within its maritime belt. Cabotage is the contrast to the over-sea[954] carrying trade, and has nothing to do with the question of free trade from or to a port on the coast to or from a port abroad. This question is one of commercial policy, and International Law does not prevent a State from restricting to vessels of its subjects the export from or the import to its ports, or from allowing such export or import under certain conditions only.

[Footnote 952: See Oppenheim in _The Law Quarterly Review_, XXIV. (1908), pp. 328-334.]

[Footnote 953: See above, § 187.]

[Footnote 954: It must be emphasised that navigation and trade from abroad to several ports of the same coast successively--for instance, from Dover to Calais and then to Havre--is not coasting-trade but over-sea trade, provided that all the passengers and cargo are shipped from abroad.]

There is no doubt that originally the meaning of coasting-trade in commercial treaties was identical with its meaning in International Law generally, but there is likewise no doubt that the practice of the States gives now a much more extended meaning to the term coasting-trade as used in commercial treaties. Thus France distinguishes between cabotage _petit_ and _grand_; whereas _petit_ cabotage is coasting-trade between ports in the same sea, _grand_ cabotage is coasting-trade between a French port situated in the Atlantic Ocean and a French port situated in the Mediterranean, and--according to a statute of September 21, 1793--both _grand_ and _petit_ cabotage are exclusively reserved for French vessels. Thus, further, the United States of America has always considered trade between one of her ports in the Atlantic Ocean and one in the Pacific to be coasting-trade, and has exclusively reserved it for vessels of her own subjects; she considers such trade coasting-trade even when the carriage takes place not exclusively by sea around Cape Horn, but partly by sea and partly by land through the Isthmus of Panama. Great Britain has taken up a similar attitude. Section 2 of the Navigation Act of 1849 (12 & 13 Vict. c. 29) enacted "that no goods or passengers shall be carried _coastwise_ from one part of the United Kingdom to another, or from the Isle of Man to the United Kingdom, except in British ships," and thereby declared trade between a port of England or Scotland to a port of Ireland or the Isle of Man to be coasting-trade exclusively reserved for British ships in spite of the fact that the Open Sea flows between these ports. And although the Navigation Act of 1849 is no longer in force, and this country now does admit foreign ships to its coasting-trade, it nevertheless still considers all trade between one port of the United Kingdom and another to be coasting-trade, as becomes apparent from Section 140 of the Customs Laws Consolidation Act of July 24, 1876 (39 & 40 Vict. c. 36). Again, Germany declared by a statute of May 22, 1881, coasting-trade to be trade between any two German ports, and reserved it for German vessels, although vessels of such States can be admitted as on their part admit German vessels to their own coasting-trade. Thus trade between Koenigsberg in the Baltic and Hamburg in the North Sea is coasting-trade.

These instances are sufficient to demonstrate that an extension of the original meaning of coasting-trade has really taken place and has found general recognition. A great many commercial treaties have been concluded between such countries as established that extension of meaning and others, and these commercial treaties no doubt make use of the term coasting-trade in this its extended meaning. It must, therefore, be maintained that the term coasting-trade or cabotage as used in commercial treaties has acquired the following meaning: _Sea-trade between any two ports of the same country whether on the same coast or different coasts, provided always that the different coasts are all of them the coasts of one and the same country as a political and geographical unit in contradistinction to the coasts of Colonial dependencies of such country_.

In spite of this established extension of the term coasting-trade, it did not include colonial trade until nearly the end of the nineteenth century.[955] Indeed, when Russia, by _ukase_ of 1897, enacted that trade between any of her ports should be considered coasting trade and be reserved for Russian vessels, this did not comprise a further extension of the conception of coasting-trade. The reason is that Russia, although her territory extends over different parts of the globe, is a political and geographical unit, and there is one stretch of territory only between St. Petersburg and Vladivostock. But when, in 1898 and 1899, the United States of America declared trade between any of her ports and those of Porto Rico, the Philippines, and the Hawaiian Islands to be coasting-trade, and consequently reserved it exclusively for American vessels, the distinction between coasting-trade and over-sea or colonial trade fell to the ground. It is submitted that this American extension of the conception of coasting-trade as used in her commercial treaties before 1898 is inadmissible[956] and contains a violation of the treaty rights of the other contracting parties. Should these parties consent to the American extension of the meaning of coasting-trade, and should other countries follow the American lead and apply the term coasting-trade indiscriminately to trade along their coasts _and_ to their colonial trade, the meaning of the term would then become _trade between any two ports which are under the sovereignty of the same State_. The distinction between coasting-trade and colonial trade would then become void, and the last trace of the synonymity between coasting-trade and cabotage would have disappeared.

[Footnote 955: See details in Oppenheim, loc. cit. pp. 331-332, but it is of value to draw attention here to a French statute of April 2, 1889. Whereas a statute of April 9, 1866, had thrown open the trade between France and Algeria to vessels of all nations, article 1 of the statute of April 2, 1889, enacts: _La navigation entre la France et l'Algérie ne pourra s'effectuer que sous pavillon français_. This French statute does not, as is frequently maintained, declare the trade between France and Algeria to be coasting-trade, but it nevertheless reserves such trade exclusively for French vessels. The French Government, in bringing the bill before the French Parliament, explained that the statute could not come into force before February 1, 1892, because art. 2 of the treaty with Belgium of May 14, 1882, and art. 21 of the treaty with Spain of February 6, 1882--both treaties to expire on February 1, 1892--stipulated the same treatment for Belgian and Spanish as for French vessels, _cabotage excepted_. It is quite apparent that, if France had declared trade between French and Algerian ports to be coasting-trade in the meaning of her commercial treaties, the expiration of the treaties with Belgium and Spain need not have been awaited for putting the law of April 2, 1889, into force.]

[Footnote 956: In the case of Huus _v._ New York and Porto Rico Steamship Co. (1901), 182 United States 392, the Court was compelled to confirm the extension of the term coasting-trade to trade between any American port and Porto Rico, because this extension was recognised by section 9 of the Porto Rican Act, and because in case of a conflict between Municipal and International Law--see above, § 21--the Courts are bound to apply their Municipal Law.]

[Sidenote: Meaning of most-favoured-nation Clause.]

§ 580. Most of the commercial treaties of the nineteenth century contain a stipulation which is characterised as the most-favoured-nation clause. The wording of this clause is by no means the same in all treaties, and its general form has therefore to be distinguished from several others which are more specialised in their wording. According to the most-favoured-nation clause in its general form, all favours which either contracting party has granted in the past or will grant in the future to any third State must be granted to the other party. But the real meaning of this clause in its general form has ever been controverted since the United States of America entered into the Family of Nations and began to conclude commercial treaties embodying the clause. Whereas in former times the clause was considered obviously to have the effect of causing all favours granted to any one State _at once and unconditionally_ to accrue to all other States having most-favoured-nation treaties with the grantor, the United States contended that these favours could accrue to such of the other States only as _fulfilled the same conditions under which these favours had been allowed to the grantee_. The majority of the commercial treaties of the United States, therefore, do not contain the most-favoured-nation clause in its general form, but in what is called its conditional, qualified, or reciprocal, form. In this form it stipulates that all favours granted to third States shall accrue to the other party unconditionally, in case the favours have been allowed unconditionally to the grantee, but only under the same compensation, in case they have been granted conditionally. The United States, however, has always upheld the opinion, and the supreme Court of the United States has confirmed[957] this interpretation, that, even if a commercial treaty contains the clause in its general, and not in its qualified, form, it must always be interpreted as though it were worded in its qualified form.

[Footnote 957: See Bartram _v._ Robertson, 122 United States 116, and Whitney _v._ Robertson, 124 United States 190.]

Now nobody doubts that according to the qualified form of the clause a favour granted to any State can only accrue to other States having most-favoured-nation treaties with the grantor, provided they fulfil the same conditions and offer the same compensations as the grantee. Again, nobody doubts that, if the clause is worded in its so-called unconditional form stipulating the accrument of a favour to other States whether it was allowed to the grantee gratuitously or conditionally against compensation, all favours granted to any State accrue immediately and without condition to all the other States. However, as regards the clause in its general form, what might, broadly speaking, be called the European is confronted by the American interpretation. This American interpretation is, I believe, unjustifiable, although it is of importance to mention that two European writers of such authority as Martens (II. p. 225) and Westlake (I. p. 283) approve of it.

It has been suggested[958] that the controversy should be brought before the Hague Court of Arbitration, yet the United States will never consent to this. Those States which complain of the American interpretation had therefore better notify their commercial treaties with the United States and insert in new treaties the most-favoured-nation clause in such a form as puts matters beyond all doubt. So much is certain, a State that at present enters upon a commercial treaty with the United States comprising the clause in its general form cannot complain[959] of the American interpretation, which, whatever may be its merits, is now a matter of common knowledge.[960]

[Footnote 958: See Barclay, op. cit. pp. 142 and 159.]

[Footnote 959: See above, § 554, No. 9.]

[Footnote 960: It is not possible in a general treatise on International Law to enter into the details of the history, the different forms, the application, and the interpretation of the most-favoured-nation clause. Readers must be referred for further information to the works and articles of Calwer, Herod, Glier, Cavaretta, Visser, Melle, and others quoted above before § 578. See also Moore, V. §§ 765-769.]

V

UNIONS CONCERNING COMMON NON-POLITICAL INTERESTS

Nys, II. pp. 264-270--Mérignhac, II. pp. 694-731--Descamps, "Les
offices internationaux et leur avenir" (1894)--Moynier, "Les
Bureaux internationaux des unions universelles" (1892)--Poinsard,
"Les Unions et ententes internationales" (2nd ed. 1901)--Renault
in R.G. III. (1896), pp. 14-26--Reinsch, "Public International
Unions" (1911), and in A.J. I. pp. 579-623, and III. pp. 1-45.

[Sidenote: Object of the Unions.]

§ 581. The development of international intercourse has called into existence innumerable treaties for the purpose of satisfying economic and other non-political interests of the several States. Each nation concludes treaties of commerce, of navigation, of extradition, and of many other kinds with most of the other nations, and tries in this way, more or less successfully, to foster its own interests. Many of these interests are of such a particular character and depend upon such individual circumstances and conditions that they can only be satisfied and fostered by special treaties from time to time concluded by each State with other States. Yet experience has shown that the several States have also many non-political interests in common which can better be satisfied and fostered by a general treaty between a great number of States than by special treaties singly concluded between the several parties. Therefore, since the second half of the nineteenth century, such general treaties have more and more come into being, and it is certain that their number will in time increase. Each of these treaties creates what is called a Union among the contracting parties, since these parties have united for the purpose of settling certain subjects in common. The number of States which are members of these Unions varies, of course, and whereas some of them will certainly become in time universal in the same way as the Universal Postal Union, others will never reach that stage. But all the treaties which have created these Unions are general treaties because a lesser or greater number of States are parties, and these treaties have created so-called Unions, although the term "Union" is not always made use of.[961]

[Footnote 961: A general treatise on Public International Law cannot attempt to go into the details of these Unions; it is really a matter for monographs or for a treatise on International Administrative Law, such as Neumayer's "Internationales Verwaltungsrecht," which is to comprise three volumes, and of which the first volume appeared in 1910. See also Reinsch, "Public International Unions" (1911).]

[Sidenote: Post and Telegraphs.]

§ 582. Whereas previously the States severally concluded treaties concerning postal and telegraphic arrangements, they entered into Unions for this purpose during the second part of the nineteenth century:--

(1) Twenty-one States entered on October 9, 1874, at Berne, into a general postal convention[962] for the purpose of creating a General Postal Union. This General turned into the Universal Postal Union through the Convention of Paris[963] of June 1, 1878, to which thirty States were parties. This convention has several times been revised by the congresses of the Union, which have to meet every five years. The last revision took place at the Congress of Rome, 1906, where, on May 26, a new Universal Postal Convention[964] was signed by all the members of the Family of Nations for themselves and their colonies and dependencies. This Union possesses an International Office seated at Berne.[965]