International Law Part 21

(_d_) The treaties must be in =conformity to law=, as embodied in the generally recognized principles of international law and the established usage of states. States could not by treaty appropriate the open sea, protect the slave trade, part.i.tion other states unless as a measure of self-protection, deprive subjects of essential rights of humanity, or enter into other agreements that could not be internationally obligatory.

-- 85. Cla.s.sification of Treaties

Treaties have been variously cla.s.sified, but the cla.s.sifications serve no great purpose. The most common cla.s.sification is clearly set forth by Calvo. As regards form, treaties may be, (1) transitory, or (2) permanent or perpetual; as regards nature, (1) personal, relating to the sovereign, or (2) real, relating to things and not dependent on the sovereign person; as regards effects, (1) equal or (2) unequal, or according to other effects, simple or conditional, definitive or preliminary, princ.i.p.al or accessory, etc.; as regards objects, (1) general or (2) special.[277] In a narrower sense treaties may be divided into many cla.s.ses, as political, economic, guarantee, surety, neutrality, alliance, friends.h.i.+p, boundary, cession, exchange, jurisdiction, extradition, commerce, navigation, peace, etc., and conventions relating to property of various kinds, including literary and artistic, to post and telegraph, etc. Most of these cla.s.ses are sufficiently described by their t.i.tles. The nature of some of the cla.s.ses is not fully indicated in the t.i.tle.

A treaty of guarantee is an engagement by which a state agrees to secure another in the possession of certain specified rights, as in the exercise of a certain form of government, in the free exercise of authority within its dominions, in freedom from attack, in the free navigation of specified rivers, in the exercise of neutrality, etc. In 1831 and 1839, by the Treaties of London, the independence and neutrality of Belgium were guaranteed, and in the Treaty of 1832 the affairs in Greece were adjusted under guarantee. The Treaty of Paris, 1856, guarantees "the independence and the integrity of the Ottoman Empire." When the guaranteeing state is not only bound to use its best efforts to secure the fulfillment of the treaty stipulations, but to make good the conditions agreed upon in the treaty provided one of the princ.i.p.als fails to meet its obligations, the treaty is not merely one of guarantee, but also a treaty of surety. This happens in case of loans more particularly.

Agreements of states to act together for specific or general objects const.i.tute treaties of alliance. The nature of these treaties of alliance varies with the terms. They may be defensive, offensive, equal, unequal, general, special, permanent, temporary, etc., or may combine several of these characteristics.

-- 86. Interpretation of Treaties

Sometimes clauses interpreting treaties are discussed and adopted by the states signing a treaty. These acts may take the form of notes, protocols, declarations, etc. The dispatch of the French amba.s.sador at London, Aug. 9, 1870, to the foreign secretary interprets certain clauses of the treaty guaranteeing the neutrality of Belgium. In cases where no preliminary agreement in regard to interpretation is made, there are certain general principles of interpretation which are ordinarily accepted. Many treatises follow closely the chapters of Grotius and Vattel upon this subject.[278]

The _rules usually accepted_ are: (1) Words of the treaty are to be taken in the ordinary and reasonable sense as when elsewhere used under similar conditions. (2) If the words have different meanings in the different states, the treaty should so far as possible be construed so as to accord with the meaning of the words in the states which accepted the conditions. (3) In default of a plain meaning, the spirit of the treaty or a reasonable meaning should prevail. (4) Unless the fundamental rights of states are expressly the subject of the agreement, these rights are not involved. (5) That which is clearly granted by the treaty carries with it what is necessary for its realization.

In the _cases of conflicting clauses_ in a single treaty or conflicting treaties, the general rules are: (1) Special clauses prevail against general clauses; prohibitory against permissive, unless the prohibitory is general and the permissive special; of two prohibitory clauses, the one more distinctly mandatory prevails; of two similar obligatory clauses the state in whose favor the obligation runs may choose which shall be observed. (2) In case of conflict in treaties between the same states the later prevails; in case a later treaty with a third state conflicts with an earlier treaty with other states, the earlier treaty prevails.[279]

"The most favored nation" clause is now common in treaties of commercial nature. This clause ordinarily binds the state to grant to its co-signer all the privileges similarly granted to all other states, and such as shall be granted under subsequent treaties. When privileges are granted by one state in exchange for privileges granted by another, as in a reciprocal reduction in tariff duties, a third state can lay claim to like reduction only upon fulfillment of like conditions. Under "the most favored nation" clause, Art. VIII., of the Treaty of 1803, between France and the United States, France claimed that its s.h.i.+ps were ent.i.tled to all the privileges granted to any other nation whether so granted in return for special concessions or not. This position the United States refused to accept, and by Article VII. of the Treaty of 1831 France renounced the claims.[280]

-- 87. Termination of Treaties

Treaties in general come to an end under the following conditions:--

(_a_) The complete fulfillment of all the treaty stipulations terminates a treaty.

(_b_) The expiration of the limit of time for which the treaty agreement was made puts an end to the treaty.

(_c_) A treaty may be terminated by express agreement of the parties to it.

(_d_) When a treaty depends upon the execution of conditions contrary to the principles of international law or morality or impossible of performance, it is not effective.

(_e_) A state may renounce the advantages and rights secured under a treaty, _e.g._ England renounced the protectorate of the Ionian Islands in 1864, which she had held since 1815.

(_f_) A declaration of war may put an end to those treaties which have regard only to conditions of peaceful relations, as treaties of alliance, commerce, navigation, etc., and may suspend treaties which have regard to permanent conditions, as treaties of cession, boundaries, etc. The treaty of peace between China and j.a.pan, May 8, 1895, Article 6, a.s.serts that, "All treaties between j.a.pan and China having come to an end in consequence of the war, China engages, immediately upon the exchange of ratifications of this act, to appoint plenipotentiaries to conclude, with the j.a.panese plenipotentiaries, a treaty of commerce and navigation, and a convention to regulate frontier intercourse and trade." In the war between the United States and Spain the royal decree issued by Spain, April 23, 1898, Article I., a.s.serts that "The state of war existing between Spain and the United States terminates the treaty of peace and friends.h.i.+p of the 27th October, 1795, the protocol of the 12th January, 1877, and all other agreements, compacts, and conventions that have been in force up to the present between the two countries." The declaration of war also gives special effect to certain treaties and conventions, as to those in regard to care of wounded, neutral commerce, etc.

(_g_) A treaty is voidable when, (1) it is concluded in excess of powers of contracting parties, (2) when it is concluded because of stress of force upon negotiators or because of fraud, (3) when the conditions threaten the self-preservation of the state or its necessary attributes.

Hall gives as the test of voidability the following: "Neither party to a contract can make its binding effect dependent at his will upon conditions other than those contemplated at the moment when the contract was entered into, and on the other hand a contract ceases to be binding so soon as anything which formed an implied condition of its obligatory force at the time of its conclusion is essentially altered."[281] The condition _rebus sic stantibus_ is always implied.

(_h_) A treaty may be terminated by the simple act of denunciation when this right of denunciation is specified in the treaty itself, or when the treaty is of such a nature as to be voidable by an act of one of the parties.

CHAPTER XV

AMICABLE SETTLEMENT OF DISPUTES AND NON-HOSTILE REDRESS

88. +The Amicable Settlement of Disputes.+ (_a_) Diplomatic negotiation.

(_b_) Good offices.

(_c_) Conferences and congresses.

(_d_) Arbitration.

89. +None-hostile Redress.+

90. +Retorsion.+

91. +Reprisals.+

92. +Embargo.+

93. +Pacific Blockade.+

-- 88. The Amicable Settlement of Disputes

It is now generally admitted that in the settlement of international disputes war should be regarded as a last resort. Other means of amicable settlement should be exhausted before any measures of force are tried. Among these amicable means the most common are diplomatic negotiations, the good offices or friendly mediation of a third state, conferences and congresses, and arbitration.[282]

(_a_) The settlement of disputes =by diplomatic negotiation= follows the ordinary course of diplomatic business, whether committed to the regular or to special agents. The larger number of disputed questions are settled by diplomatic negotiation.

(_b_) In the case of disputes which are not easily settled by diplomatic negotiations, a third state, friendly to the disputants, sometimes offers its =good offices= as mediator to bring about an agreement. The office of the mediating state is not to judge upon the merits of the disputed question, but to devise a practicable means of settlement of the question in view of the circ.u.mstances of the dispute. The tender of good offices is a measure involving the least possible interference in the dispute, and cannot be regarded as other than a friendly act. There is no obligation to accept the tender, and either disputant may decline it without offense. One of the disputants may request the tender of good offices or of mediation. The distinction between good offices and mediation is not always made in practice, though it may be said that good offices extend only to the establis.h.i.+ng of bases of negotiations and the commencement of the negotiations. The more direct work of carrying on the negotiations is of the nature of mediation. Either party may at the beginning or at any time refuse the mediator's offices.

(_c_) The settlement of disputes or of questions liable to give rise to disputes by =conferences and congresses= is common, and implies a meeting of representatives of the interested parties for consideration of the terms of agreement upon which a question may be adjudicated. In general the conclusions of a congress are more formal and are regarded as having more binding force than those of a conference, though this distinction is not always made. States not directly interested may partic.i.p.ate in conferences or congresses, and sometimes as mediators play a leading part.

(_d_) =Arbitration= involves an agreement between the disputants to submit their differences to some person or persons by whose decision they will abide. Arbitration has been common from early times. It is now becoming common to insert in treaties clauses providing for arbitration in cases of disagreement upon the interpretation of clauses of the treaty, and to resort more and more to this method of settling disputed international questions.

The parties submitting the question to arbitration usually provide for the naming of the arbitrator or arbitrators, and for the rules and principles in accord with which the decision shall be made.

It is generally admitted that a decision is not binding if it is not in accord with the principles to which the disputants had agreed; if it is flagrantly unjust; if it is equivocal and itself open to dispute; or if the decision is obtained by fraud or force.

Of about thirty cases of arbitration during the nineteenth century, the decision in one case was rejected by both parties to the dispute, and in one case rejected by one of the parties. In several other instances one party has refused to submit to arbitration questions readily lending themselves to such settlement, even though requested by the other party.[283]

-- 89. Non-hostile Redress

Good offices, mediation, and arbitration can only extend to international differences of certain kinds. Such measures are not applicable to all cases of disagreement, nor are such measures always acceptable to both parties. Consequently certain other practices have arisen with the view of obtaining satisfaction by measures short of war.

Formerly an individual might be commissioned by a letter of marque and reprisal to obtain satisfaction from a state for injuries which he had suffered. This practice is, however, discontinued,[284] and satisfaction must be obtained through the proper state channels. The means by which satisfaction may be claimed vary, and are usually cla.s.sed as retorsions, reprisals, of which embargo is an important variety, and pacific blockades.

-- 90. Retorsion

Retorsion is a species of retaliation in kind.[285] Retorsion may not consist in acts precisely identical with those which have given offense, though it is held that the acts should be a.n.a.logous. The offense in consequence of which measures of retorsion are taken may be an act entirely legitimate and desirable from the point of view of the offending state. Another state may, however, consider the act as discourteous, injurious, discriminating, or unduly severe. In recent years commercial retorsion has become a very important means of retaliation which, bearing heavily upon modern communities, may lead to a speedy settlement of difficulties. The tariff wars of recent years show the effectiveness of commercial retorsion, _e.g._ the measures in consequence of the tariff disagreements between France and Switzerland in 1892. These measures of retorsion should always be within the bounds of munic.i.p.al and international law.

-- 91. Reprisals