International Law. A Treatise Volume I Part 76

[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. x.x.xII. p.

79), and of Panama by the Treaty of Was.h.i.+ngton of November 18, 1903 (Martens, N.R.G. 2nd Ser. x.x.xI. 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 circ.u.mstances; it may eventually be war. But the duty of the guarantor to render, even by compulsion, the promised a.s.sistance to the guaranteed depends upon many conditions and circ.u.mstances. Thus, first, the guaranteed must request the guarantor to render a.s.sistance. 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 a.s.sistance. 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 a.s.sistance. 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 a.s.sistance afterwards.

It is impossible to state all the circ.u.mstances 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 circ.u.mstances 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 const.i.tuting a guarantee on the part of one or more States severally, the effect of treaties const.i.tuting 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 cla.s.s 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 circ.u.mstances 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. x.x.xV. 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 const.i.tute 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-Fodere, IV. Nos. 2005-2033--Merignhac, II. pp.

688-693--Rivier, I. pp. 370-374--Fiore, II. Nos. 1065-1077, and Code, Nos. 848-854--Martens, II. ---- 52-55--Steck, "Versuch uber Handels- und Schiffahrtsvertrage" (1782)--Schraut, "System der Handelsvertrage und der Meistbegunstigung" (1884)--Veillcovitch, "Les traites de commerce" (1892)--Nys, "Les origines du droit international" (1894), pp. 278-294--Herod, "Favoured Nation Treatment" (1901)--Calwer, "Die Meistbegunstigung in den Vereinigten Staaten von Nord-America" (1902)--Glier, "Die Meistbegunstigungs-Klausel" (1906)--Cavaretta, "La clausola della natiozione piu favorita" (1906)--Barclay, "Problems of International Law and Diplomacy" (1907), pp. 137-142--Hornbeck, "The Most-Favoured Nation Clause" (1910), and in A.J. III. (1909), pp. 394-422, 619-647, and 798-827--Lehr in R.I. XXV. (1893), pp.

313-316--Visser in R.I. 2nd Ser. IV. (1902), pp. 66-87, 159-177, and 270-280--Lehr in R.I. 2nd Ser. XII. (1910), pp.

657-668--Shepheard in _The Journal of the Society of Comparative Legislation_, New Series, III. (1901), pp. 231-237, and V. (1903), pp. 132-136--Oppenheim in _The Law Quarterly Review_, XXIV.

(1908), pp. 328-334.

[Sidenote: Commercial Treaties in General.]

-- 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 Ma.r.s.eilles and Nice, between Calais and Havre, between London and Liverpool, and between Dublin and Belfast is coasting-trade, but trade between Ma.r.s.eilles 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 pa.s.sengers and cargo are s.h.i.+pped 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 _pet.i.t_ and _grand_; whereas _pet.i.t_ 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 _pet.i.t_ 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 att.i.tude. Section 2 of the Navigation Act of 1849 (12 & 13 Vict. c. 29) enacted "that no goods or pa.s.sengers 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 s.h.i.+ps," 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 s.h.i.+ps 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 s.h.i.+ps to its coasting-trade, it nevertheless still considers all trade between one port of the United Kingdom and another to be coasting-trade, as becomes apparent from Section 140 of the Customs Laws Consolidation Act of July 24, 1876 (39 & 40 Vict. c. 36).

Again, Germany declared by a statute of May 22, 1881, coasting-trade to be trade between any two German ports, and reserved it for German vessels, although vessels of such States can be admitted as on their part admit German vessels to their own coasting-trade. Thus trade between Koenigsberg in the Baltic and Hamburg in the North Sea is coasting-trade.

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

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

[Footnote 955: See details in Oppenheim, loc. cit. pp. 331-332, but it is of value to draw attention here to a French statute of April 2, 1889.

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

[Footnote 956: In the case of Huus _v._ New York and Porto Rico Steams.h.i.+p 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 Munic.i.p.al and International Law--see above, -- 21--the Courts are bound to apply their Munic.i.p.al Law.]