Treatise

“ Although the heads of States are regularly, according to the Law of Nations, the organs that exercise the treaty-making power of the States, constitutional restrictions imposed upon the heads concerning the exercise of this power are nevertheless of importance for the Law of Nations. ”

“ 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) .
Post and Telegraphs. ”

“ The so-called right of making treaties is not a right of a State in the technical meaning of the term, but a mere competence attaching to sovereignty. A State possesses, therefore, treating-making power only so far as it is sovereign. ”

“ To call them rights and duties—as indeed the respective treaties frequently do—is a laxity of language which is quite tolerable as long as one remembers that they neither comprise any relations between States nor any claims and obligations within the province of Municipal Law. ”

“ And countless treaties concerning trade, navigation, post, telegraph, copyright, extradition, and many other objects exist between civilised States, which treaties, resting entirely on the existence of a law between the States, presuppose such a law, and contribute by their very existence to its development and growth. ”

“ Hundreds of treaties of commerce and friendship exist between the members of the Family of Nations according to which they are obliged to receive each other's unobjectionable subjects, and thus practically the matter is settled, although in strict law every State is competent to exclude foreigners from its territory. ”

“ Not to be confounded with the effect of changes in government is the effect of a change in international status upon treaties, as, for instance, if a hitherto full-sovereign State becomes half- or part-Sovereign, or vice versa, or if a State merges entirely into another, and the like. ”

“ For as princes do actually form treaties among themselves, they must propose some advantage from the execution of them; and the prospect of such advantage for the future must engage them to perform their part, and must establish that law of nature. ”

“ In his treatise on the Commonwealth, Cicero says those wars are unjust which are undertaken without reason. ”

“ There is no doubt that in the eighteenth century, when it was recognised that a State could be considered neutral, although it was by a previous treaty bound to render more or less limited assistance to one of the belligerents, this distinction between neutrality perfect and qualified was justified. ”

“ All treaties whose obligations concern a certain object become void through the extinction of such object. Treaties, for example, concluded in regard to a certain island become void when such island disappears through the operation of nature, as likewise do treaties concerning a third State when such State merges in another. ”

“ Speaking generally, the object of treaties can be an obligation concerning any matter of interest for States. Since there exists no other law than International Law for the intercourse of States with each other, every agreement between them regarding any obligation whatever is a treaty. However, the Law of Nations prohibits some obligations from becoming objects of treaties, so that such treaties as comprise obligations of this kind are from the very beginning null and void. ”

“ If a cession of territory is the outcome of war, it is the treaty of peace which stipulates the cession among its other provisions. Such cession is regularly one without compensation, although certain duties may be imposed upon the acquiring State, as, for instance, of taking over a part of the debts of the ceding State corresponding to the extent and importance of the ceded territory, or that of giving the individuals domiciled on the ceded territory the option to retain their old citizenship or, at least, to emigrate. ”

“ Legation as an institution for the purpose of negotiating between different States is as old as history, whose records are full of examples of legations sent and received by the oldest nations. And it is remarkable that even in antiquity, where no such law as the modern International Law was known, ambassadors enjoyed everywhere a special protection and certain privileges, although not by law but by religion, ambassadors being looked upon as sacrosanct. ”

“ The Law of Nations and the Municipal Law of the single States are essentially different from each other. They differ, first, as regards their sources. Sources of Municipal Law are custom grown up within the boundaries of the respective State and statutes enacted by the law-giving authority. Sources of International Law are custom grown up within the Family [Pg 26] of Nations and law-making treaties concluded by the members of that family. ”

“ Attention must be drawn to the fact that the condition of peace created by a peace treaty is legally final in so far as the order of things set up and stipulated by the treaty of peace is the settled basis of future relations between the parties, however contentious the matters concerned may have been before the outbreak of war. ”

“ But tho' nations in this particular resemble individuals, yet as they are very different in other respects, no wonder they regulate themselves by different maxims, and give rise to a new set of rules, which we call the laws of nations. Under this head we may comprize the sacredness of the persons of ambassadors, the declaration of war, the abstaining from poison'd arms, with other duties of that kind, which are evidently calculated for the commerce, that is peculiar to different societies. ”

“ It is a customarily recognised rule of the Law of Nations that immoral obligations cannot be the object of an international treaty. Thus, an alliance for the purpose of attacking a third State without provocation is from the beginning not binding. ”

“ Persons being subjects of a country which is under the protectorate of the Power whose protection they claim; (2) individuals corresponding to the classes enumerated in the treaties with Morocco of 1863 and 1880 and in the Ottoman law of 1863; (3) persons, who under a special treaty have been recognised as protégés like those enumerated by article 4 of the French Muscat Convention of 1844 ”

“ Full-Sovereign States may become parties to treaties of all kinds, being regularly competent to make treaties on whatever matters they please. Not-full Sovereign States, however, can become parties to such treaties only according to their competence to conclude. ”

“ It is taken for granted that the contracting parties intend something reasonable, something adequate to the purpose of the treaty, and something not inconsistent with generally recognised principles of International Law nor with previous treaty obligations towards third States. ”

“ As consuls are appointed in the interest of commerce and industry, they must be allowed by the receiving State to watch over the execution of the commercial treaties of their home State, to send reports to the latter in regard to everything which can influence the development of its commerce and industry, and to give such information to merchants and manufacturers of the appointing State as is necessary for the protection of their commercial interests. ”

“ For a State may enter into a treaty between other States for the purpose of guarantee. [900] This kind of accession makes the acceding State also a party to the treaty; but the rights and duties of the acceding State are different from the rights and duties of the other parties, for the former is a guarantor only, whereas the latter are directly affected by the treaty. ”

“ For how could International Law, which is a law between States, give rights to individuals concerning their relations to a State? What the Law of Nations really does concerning individuals, is to impose the duty upon all the members of the Family of Nations to grant certain privileges to such foreign heads of States and diplomatic envoys, and certain rights to such foreign citizens as are on their territory. ”

“ For although different states make treaties not to harm one another, they always take every possible precaution against such treaties being broken by the stronger party, and do not rely on the compact, unless there is a sufficiently obvious object and advantage to both parties in observing it. ”

“ The so-called Law of Nations is nothing else than a body of customary and conventional rules regulating the conduct of the individual States with each other. Just as out of tribal communities which were in no way connected with each other arose the State, so the Family of Nations arose out of the different States which were in no way connected with each other. ”

“ 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. ”

“ Until the last two decades of the nineteenth century all jurists agreed that the membership of the Family of Nations includes so-called fundamental rights for States. Such rights are chiefly enumerated as the right of existence, of self-preservation, of equality, of independence, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation. ”

“ Intercourse being a presupposition of International Personality, the Law of Nations favours intercourse in every way. The whole institution of legation serves the interest of intercourse between the States, [Pg 201] as does the consular institution. The right of legation, [226] which every full-Sovereign State undoubtedly holds, is held in the interest of intercourse, as is certainly the right of protection over citizens abroad [227] which every State possesses. ”

“ If a treaty is concluded in two languages, for instance, a treaty between Great Britain and France in English and French, and if there is a discrepancy between the meaning of the two different texts, each party is only bound by the text of its own language. But a party cannot claim any advantage from the text of the language of the other party. [Pg 587]
CHAPTER III IMPORTANT GROUPS OF TREATIES I IMPORTANT LAW-MAKING TREATIES
Important Law-making Treaties a product of the Nineteenth Century. ”

“ 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. ”

“ A conflict between International and Municipal Law arises if a certain individual must be extradited according to an extradition treaty, but cannot be extradited according to the Municipal Law of the State from which extradition is demanded. ”

“ Again, sometimes negotiation results in a party, although it does not acknowledge the opponent's alleged rights, waiving its own rights for the sake of peace and for the purpose of making friends with the opponent. And, lastly, the effect of negotiation can be a compromise between the parties. Frequently the parties, after having come to an understanding, conclude a treaty in which they embody the terms of the understanding arrived at through negotiation. The practice of everyday life shows clearly the great importance of negotiation as a means of settling international differences. ”

“ A State could maintain that it was no party to a war, although it furnished one of the belligerents with money, troops, and other kinds of assistance. To prevent such assistance, which was in no way considered illegal, treaties were frequently concluded, during the latter part of the Middle Ages, for the purpose of specially stipulating that the parties were not to assist each other's enemies in any way during time of war, and were to prevent their subjects from rendering such assistance. ”

“ For dealing with infractions of the interdictions and injunctions of the treaty the Courts of the flag State of the infringing vessel are exclusively competent (article 8) .
(4) Men-of-war of all signatory Powers have a right [Pg 355] to stop and to verify the nationality of merchantmen of all nations which are suspected of having infringed the regulations of the treaty (article 10) .
(5) All stipulations are made for the time of peace only and in no wise restrict the action of belligerents during time of war. ”

“ Since a treaty of peace is considered a final settlement of the war, one of the effects of every peace treaty is the so-called amnesty—that is, an immunity for all wrongful acts done by the belligerents themselves, the members of their forces, and their subjects during the war, and due to political motives. ”

“ The outbreak of war cancels all political treaties between the belligerents which have not been concluded for the purpose of setting up a permanent condition of things, for instance, treaties of alliance. ”

“ As nowadays, as far as International Law is concerned, every analogy to private property has disappeared from the conception of State territory, the acquisition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory. ”

“ Be that as it may, every State can exercise this right when one of its subjects is wronged abroad in his person or property, either by the State itself on whose territory such person or property is for the time, or by such State's officials or citizens without such State's interfering for the purpose of making good the wrong done. ”