INTERNATIONAL LAW OF PEACE
CHAPTER VII
GENERAL RIGHTS AND OBLIGATIONS OF STATES
§ 30. Existence
The most comprehensive right of a state is the right to exist as a sovereign political unity. From this comprehensive right flow the general rights of independence, equality, jurisdiction, property, and intercourse and the obligations which the exercise of these rights imply. There are many classifications of the general rights of states. During the eighteenth century a classification into perfect and imperfect rights was common. A classification based on the essential nature of the state as a sovereign political unity, having (1) a right to existence and (2) from the point of view of international law, having relations to other states, has been widely followed. The rights based on the comprehensive right to existence were variously named as essential, fundamental, primitive, innate, absolute, permanent, etc., while the rights derived from the practice of states in their mutual relations were called accidental, derived, secondary, acquired, relative, contingent, etc. The view now most generally recognized is that from the single comprehensive right of states to exist, all other rights flow, and all other rights are therefore related, if not directly, at least by virtue of their common source.
§ 31. Independence
Independence from the point of view of international law is freedom from external political control. While all states possessing freedom from external political control may not be admitted to the family of states, yet in order that a state may be admitted, it is regarded as essential that it be independent. The recognition of a state carries with it the recognition of independence. However, from the fact that there are states in the world having equal rights to independence, it follows that the field of action of each state is limited by the necessity of respect for the right of independence belonging to other states.
The recognition of a state presupposes autonomy as an essential for the existence of a sovereign political unity, and autonomy implies the right to determine and pursue such lines of action as may be in accord with its policy.
§ 32. Equality
All states, the existence of which has been recognized by the family of states, are regarded as possessed of equal rights in political affairs, so far as legal competence is concerned.
This does not imply an equality of territorial area, population, wealth, rank, and influence, etc., or that a given state may not voluntarily limit the exercise of its powers.
§ 33. Jurisdiction
The right of jurisdiction is the right to exercise state authority. The right of jurisdiction is in general coextensive with the dominion of the state. It may be "laid down as a general proposition that all persons and property within the territorial jurisdiction of a sovereign are amenable to the jurisdiction of himself or his courts; and that the exceptions to this rule are such only as by common usage and public policy have been allowed, in order to preserve the peace and harmony of nations, and to regulate their intercourse in a manner best suited to their dignity and rights."[89]
§ 34. Property
In international law, as against other states, a given state has the right of property or domain in the territory and fixtures within its limits. This right of property is not the right in the old feudal sense, for in the public law of the state the title of ownership may vest in the state only in a limited sense as over territory to which none of its subjects have title, and over such other forms it has ownership in corporate capacity, as public buildings, forts, arsenals, vessels, lighthouses, libraries, museums, etc. The right of eminent domain as a domestic right may also vest in the state. While from the point of view of international law, a state has the right of property over all territorial and non-territorial possessions within its limits as against other states, yet the effect of this right is somewhat modified by the fact of public or private ownership, particularly as regards the laws of war, neutrality, and intercourse.
§ 35. Intercourse
In early periods of history intercourse among states was very limited and sometimes even prohibited. At the present time the necessities of state existence presuppose, in international law, the recognition of the right of intercourse in order that state business may be transacted. The principles upon which this intercourse is carried on are well established, and form the basis of diplomatic practice.
CHAPTER VIII
EXISTENCE
Besides the general rights of independence, equality, jurisdiction, property, and intercourse, the right of existence in its exercise may lead to certain acts for which the general principles of international law do not provide rules.[90]
(a) In face of actual dangers immediately threatening its existence, a state may take such measures as are necessary for self-preservation, even though not sanctioned by international law. Such measures, however, must be from "a necessity of self-defense, instant, overwhelming, and leaving no choice of means and no moment for deliberation," and further "must be limited by that necessity and kept clearly within it."[91] The wide discussion of the case of the Virginius involved the principle of the limits of the right of self-defense.[92]
(b) The right to act in a manner which international law does not sanction or denies, even though it may be strictly to preserve the existence of the state so acting, cannot be upheld as freeing it from responsibility for such acts, and these acts may be regarded as hostile by states affected by them.
(c) As the domestic acts of a state are not within the province of international law, a state has the right to administer its internal affairs in such manner as it may determine fit to secure and further its existence. It may adopt any form of government; may plan for its growth by developing its resources, by encouraging immigration; may strengthen defenses and forces; may regulate trade, commerce, and travel. While acts of this character may work injury to other states, they are not in general just grounds for war, but may properly be met by like acts on the part of other states.
§ 37. Extension of the Right to Subjects of the State
As the subjects of a state are necessary for its existence, the right of self-preservation has been held to justify certain acts of states to secure to their subjects in their relations with foreign states such rights as the foreign states would accord to their own subjects under similar circumstances. That a local tribunal within a purely domestic division of a state cannot secure to foreigners rights to which they are entitled, in no way frees that state, whose sovereignty extends over such domestic division, from responsibility for violation of the foreigner's right. International law recognizes only the personality of the sovereign political unity, and cannot cognize the administrative and other subdivisions. Hall says, "States possess a right of protecting their subjects abroad which is correlative to their responsibility in respect of injuries inflicted upon foreigners within their dominions."[93] "Fundamentally, however, there is no difference in principle between wrongs inflicted by breach of a monetary agreement and other wrongs for which the state, as itself the wrong-doer, is immediately responsible. The difference which is made in practice is in no sense obligatory; and it is open to governments to consider each case by itself, and to act as seems well to them on its merits."[94]
CHAPTER IX
INDEPENDENCE
§ 38. Manner of Exercise of the Right
Strictly, there can be no limitation or restriction of independence, for it is a recognized principle that independence must be absolute and inalienable. In fact, every state voluntarily accepts either formally by treaty or tacitly by practice, many conditions which restrain it in the exercise of its powers. The independence of the state is not thereby violated, since the restraint is exercised by the state itself, and is not an act of external control. The number of these restraints which states voluntarily assume is continually increasing, owing to the closer relations of humanity.
The exercise of the right of independence involves the privilege of making treaties, alliances, contracts, and municipal laws, so far as these do not violate international law or the right of independence as possessed by other states. A state may go to war to maintain its independence. The international rights of a state are in general closely related to the right of independence, and derive force from this relationship.
§ 39. Balance of Power
Undoubtedly the idea of establishing a relationship among "neighboring states more or less connected with one another, by virtue of which no one among them can injure the independence or essential rights of another without meeting with effectual resistance on some side and consequently exposing itself to danger"[95] is not a modern idea. Ancient states united to prevent the growth of some neighboring power to such magnitude as would threaten their independence.[96] From the beginning of the modern period of international law, Peace of Westphalia (1648), the idea of maintaining an equilibrium among the powers of Europe has had great influence, and until the latter part of the nineteenth century was regarded as one of the fundamental principles of European international practice. Many treaties aim to preserve this balance among the European powers, and the words "balance" and "equilibrium" often appear.[97] The Treaty of Utrecht in its provision between Spain and Great Britain, July 13, 1713, gives as its object ad firmandam stabiliendamque pacem ac tranquillitatem christiani orbis justo potentiÆ equilibro. The idea that independence was to be preserved by some balance of power reappears in successive treaties. This idea of the balance of power has led to most diverse action. Unjust rulers have made it the cloak for action entirely outside the sanction of international law. Many times it has "served as the pretext for a quarrel, and repeatedly made hostilities general which would otherwise have been shut up within a comparatively small area."[98] The feeling that the balance of power was a necessary policy for the preservation of European states, led to the idea that states should be constrained to certain lines of action, which would prevent, in many cases, normal growth. Frequently the independence of a state was violated to anticipate an action which might disturb the European equilibrium. The partitions of Poland show a violation of the principles of international law for the sake of giving equal compensation to the parties to it.
The doctrine of the balance of power is not a principle of international law, but merely a maxim of European political practice pretending to state the means of maintaining the independence of European states.[99]
§ 40. Monroe Doctrine
Another maxim of political action is that which has become known as the "Monroe Doctrine." While enunciated by a single state, it had in view the maintenance of the independence of the states of the American continent. For many years after the Revolutionary War the opinion prevailed that Europe viewed with disfavor the growth of the American republic. The Holy Alliance, formed on the downfall of Napoleon, was followed by several congresses of European powers, at one of which, held at Verona in 1822, the subject of helping Spain recover her revolting colonies in America was discussed. This led to the declaration of President Monroe in his message of Dec. 2, 1823, that there should be, (1) no more European colonies on these continents, (2) no extension of the European political system to any portion of this hemisphere, (3) no European interposition in the affairs of the Spanish-American republics. This doctrine has been repeatedly affirmed by the United States, and in some instances very liberally interpreted. It in no way embodies a principle of international law, though the European and other states may regard it as expressing the attitude of the United States upon the points covered, and if desirous of avoiding friction, govern themselves accordingly. If it were a principle of international law, the United States would not be justified in changing its attitude upon the doctrine, but probably it would not be seriously maintained that the United States might not enunciate another policy setting aside the Monroe Doctrine. Reddaway well says, "that it produced its desired effect as an act of policy, but in no way modified the Law of Nations."[100] This doctrine cannot be considered as outlining a principle of non-intervention, as has sometimes been claimed, but it rather announces a policy of intervention on the part of the United States to anticipate intervention by other powers.
The doctrine has always failed of legislative indorsement, and has been strenuously opposed by European powers. That it has been recognized, however, to a certain extent, appears by the course of events.[101] It was recently applied in the case of the intervention by the United States in the dispute over the boundary between Venezuela and British Guiana. Great Britain and the United States settled the difficulty by a submission to arbitration.[102]
§ 41. Non-intervention
With the right of independence goes the correlative obligation of non-intervention, i.e. of refraining from all acts that would forcibly limit the freedom of another state. This obligation of non-intervention does not extend to the limitation of acts involving no display or threat of force, as in the case of mediation and arbitration. Nor can it be claimed that the obligation of non-intervention can be urged against measures undertaken by a state to preserve its fundamental right to existence. There is no right of intervention, as has been sometimes argued, though an act of intervention may be sometimes justifiable in itself.[103] Intervention is the attempt of one or more states, by means of force, to coerce another state in its purely state action. The making of an alliance between two may influence a third state in its action, but it cannot be considered an intervention, nor is the tender of friendly offices in the settlement of a dispute to which a state is a party, intervention; but when a state directly interferes with the exercise of the authority in another state or by another state, it constitutes intervention. Intervention may vary greatly in degree and in character, whether it be armed or diplomatic. Each case must be considered separately on its merits, and if in any degree a justifiable measure, it must be on the highest grounds, and the motives of the intervening state must be pure. While it is still necessary to discuss the question of intervention in its various forms, yet, as Hall says: "It is unfortunate that publicists have not laid down broadly and unanimously that no intervention is legal, except for the purpose of self-preservation, unless a breach of the law as between states has taken place, or unless the whole body of civilized states have concurred in authorizing it."[104]
§ 42. Practice in Regard to Intervention
The nineteenth century might be called the century of interventions, for its whole political history has been closely related to the application of measures of intervention of the most varied sort. Naturally, all authorities do not agree as to the causes underlying the action of the several states, nor as to the nomenclature which should be used in describing these measures. A review of some of the cases of intervention during the nineteenth century shows that while the doctrine of non-intervention has been more and more widely professed, the practice has been strongly influenced by political expediency.
Intervention for any cause may always be regarded by the state whose independence is impinged as a hostile act, and a ground for war, thus putting the matter outside the international law of peace.[105]
(a) Intervention for Self-preservation. As the right of existence is the first right of a state and universally admitted, intervention may sometimes be used as a means of maintaining this existence. In such a case it is clearly a matter of policy as to the means which a state shall use, and if it resorts to intervention rather than other means, it must have ample grounds for its action in the particular case. A case of intervention on the grounds of self-preservation which has caused much debate is that of England in the two attacks upon Copenhagen in 1801 and 1807, on the ground that it was necessary for English supremacy of the seas, which formed her chief defense, to prevent the union of the Danish forces with those of the other powers. Intervention cannot be justified by any appeal to general principles which inhere in the act itself. "The facts of intervention are acts of the political existence of states. Good or bad, according as the intervention is injurious or beneficial."[106] Of intervention as a method of state action, Sir W. Harcourt says: "It is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in case of Intervention, as in that of Revolution, its essence is illegality, and its justification is its success. Of all things, at once the most injustifiable and the most impolitic is an unsuccessful Intervention."[107] Non-intervention is the obligation which international law enjoins. It gives no sanction to a "right of intervention" which would be entirely inconsistent with the right of independence. The question of intervention is one of state policy only, and is outside the limits of the field of international law. Intervention is a method of state action which is justifiable only in rare cases, and less and less justifiable as the growing mutual dependence of states makes possible other methods less open to objection. International law at the present day undoubtedly regards intervention when strictly necessary to preserve the fundamental right of the intervening state to its existence as a permissible act though contravening the right of independence in another state.
(b) Intervention to prevent Illegal Acts. As international law must rest upon the observance of certain general principles, it may in extreme cases be necessary to intervene in order that these principles may be respected by certain states in their dealings with other states which, though weaker in physical force, have equal rights in international law. How far any state will act as champion of the law of nations is a question which it must decide for itself. Unquestionably international law would look with favor upon measures necessary for its own preservation.
(c) Intervention by General Sanction. Some authorities have maintained that intervention when sanctioned by a group of states is justifiable. It is probable that a group of states would be less liable to pursue an unjust course than a single state, and that intervention under such sanction would be more liable to be morally justifiable. It is, however, no more legal than the same act by a single state; and if general consent is the only sanction, while the act may be expedient, advantageous, and morally just, it cannot be regarded as upheld by international law, nor can a single act of this kind establish a principle. The several cases of such intervention under general sanction can hardly be regarded as sufficiently similar to establish a principle even upon the Eastern Question in Europe.[108] It may be concluded that while general sanction of a considerable group of states may, for a given interference, free a state from moral blame and warrant the act as a matter of policy, yet it does not give any international law sanction for intervention by general consent.
(d) Other Grounds of Intervention. Many reasons have been advanced as justifying such measures as intervention.
(1) Intervention to carry out provisions of treaties of guaranty was formerly common, e.g. intervention by one state to preserve the same form of government in the other or to maintain the ruling family. It is now held that no treaty can justify interference in the internal affairs of a state not party to the treaty.
In general, intervention, because of treaty stipulations, even when the state subject to the intervention is a party to the treaty, is a violation of independence unless the treaty provides for such measures, in which case the state has become a protected state or entered into relations by which it has not full state powers. Such treaties must be clearly state acts and not acts of individuals "who from their position have the opportunity of giving to their personal agreements the form of a state act."[109] While there is still difference of opinion as to the question of intervention under treaty sanction, the weight of opinion seems to be decidedly to the effect that such intervention has no ground of justification in international law.
(2) Intervention to preserve the balance of power, which was regarded as a necessary means for the preservation of European peace, has been considered as justifiable till recent times. Since the middle of the nineteenth century the position has received less and less support, though advanced in behalf of the preservation of the Turkish Empire and the adjustment of the Balkan states. In 1854 Great Britain and France, on the appeal of the Sultan for assistance against the Russian aggressions, determined to aid him, "their said Majesties being fully persuaded that the existence of the Ottoman Empire in its present Limits is essential to the maintenance of the Balance of Power among the States of Europe."[110] The attitude at the present time is stated by Lawrence. "The independence of states is not to be violated on the ground of possible danger to some imaginary equilibrium of political forces."[111]
(3) Interventions upon the broad and indefinite ground of humanity have been common and were generally upheld by the writers to the time of Vattel. Since his day opposition to intervention of this kind has gradually obtained favor. What the grounds of humanity are, and which nation's ideas of humanity shall be accepted as standard, have been questions difficult to settle to the general satisfaction of states. For a state to set itself up as judge of the actions of another state and to assume that it has the right to extend its powers to settling and regulating affairs of morals, religion, and the relations of public authority to the subjects in another state, on the ground of maintaining the rights of mankind as a whole, is to take a ground which the conduct of any modern state, even the most civilized, would hardly warrant. While it is admitted that a state or states may sometimes interfere to prevent one state from unduly oppressing another, as in the intervention of the powers in Greece in 1827, yet it is generally held that to interfere because the internal affairs of a given state are not conducted in a manner pleasing to the foreign state is to give a sanction to an act that would result in far more evil than good. Such intervention has often taken place. The "Holy Alliance," in attempting to guard Europe from "the curse of Revolution," advocated in practice a most dangerous form of intervention.[112] Indeed, much of the European history of the nineteenth century is but a history of successive interventions. In spite of all this, as Walker says, "the rule regularly progresses towards more general recognition, that non-intervention in the internal affairs of a state is a law which admits of no exception to foreign powers, so long as the operations of that state are confined in their effect to the limits of the national territory."[113]
Nevertheless, the United States interfered in the affairs of Cuba on the ground of humanity. The President, in his message of April 11, 1898, says, after a long statement of the facts: "I have exhausted every effort to relieve the intolerable condition of affairs which is at our doors. Prepared to execute every obligation imposed upon me by the Constitution and the law, I await your action."[114] By joint resolution of Congress of April 20, 1898, demand was made upon Spain to relinquish its authority in Cuba, and the President was authorized to use land and naval forces to carry the resolution into effect.[115]
(4) In time of civil war, on invitation of both parties, a foreign state may act as mediator, but unless the revolting party has been recognized, this is mediation in a domestic sense rather than intervention in the sense of international law.
Under other conditions there is a diversity of view as to the proper course of action.[116] Some deny with Vattel, G. F. de Martens, Heffter, Fiore, Bluntschli, Woolsey, and others maintain or permit intervention in civil war at the request of one of the parties, though some of the authorities do not permit intervention except on the invitation of the parent state and not on that of the rebelling party. Bluntschli (§ 476) and Woolsey (§ 42) admit intervention only in behalf of the party representing the state; Vattel and some others permit intervention in behalf of the party which the intervening state considers to have the right of the contest, thus opening the arbitration of the contest to a foreign state. Both of these positions are receiving less and less of sanction. Intervention in behalf of the established state implies a doubt as to which power within the state is the de facto power, and as Hall says: "the fact that it has been necessary to call in foreign help is enough to show that the issue of the conflict would without it be uncertain, and consequently that there is a doubt as to which side would ultimately establish itself as the legal representative of the state."[117] It is plain to see that intervention in behalf of the rebelling party is a violation of the independence of the existing state. It is equally clear that international law does not give a foreign state a right to judge upon the justice or merits of domestic questions in another state.
The principle may now be regarded as established by both theory and practice that the invitation of neither party to a domestic strife gives a right to a foreign state to intervene, and that no state has a right to judge as to the merits of the contest and to interfere in behalf of the party it thinks in the right. Indeed, intervention because of civil war only is in no case justifiable, though the consequences of such a disturbance may warrant intervention upon other grounds.[118]
(5) Intervention on the ground of financial transactions is not now sanctioned. A state may make any injustice done its subjects by a foreign state a matter of diplomatic negotiations. It has sometimes been held that contracts running between a state and the subject or subjects of another state may, if violated, become grounds of just intervention, and that the subjects had a right to demand action by their sovereign. This ground is manifestly insufficient, though each state is judge as to what measures it will take in a given case. International law does not guarantee the payment of loans which are merely personal transactions between the individual and the state in its corporate capacity, nor can the public law of one state be expected to hold in another. Interference on such grounds is a matter of expediency and not a matter of right.
(e) Conclusion. In general, the best authorities seem to agree that at the present time, owing to the ease with which other measures may be taken, intervention can be admitted only on the single ground of self-preservation. The numerous cases of intervention upon varied grounds amply show that any other ground would be open to wide abuse, as has often been the case. For general purposes of remedy for injury such measures as retorsion, reprisals, embargo, and pacific blockade may be taken when a state deems it expedient and is willing to assume the responsibility for such measures.[119] While intervention is, for the sake of preserving the existence of a state, a justifiable measure, it is not a right, but merely a means sometimes justifiable to preserve a right,—the right of a state to exist, which alone supersedes the obligation of non-intervention.
CHAPTER X
EQUALITY
§ 43. Equality in General
The equality of states was an early premise of international law. This equality, however wide may have been its meaning, as interpreted by some of the earlier writers, can now be held to extend only to legal status. A state from its very being as a sovereign unity must be legally equal to any other state. Only those states members of the international circle are regarded as possessed of this equality from the point of view of international law. So far as legal attributes as states extend, the states members of the international circle are equal, yet that their weight in the world of affairs may vary by virtue of other circumstances must be admitted. The legal status of states is the same; regardless of the form of state organization, whether monarchy or republic; regardless of origin, whether by division or union of former states or even if created in a region hitherto outside the jurisdiction of any state; regardless of area, population, wealth, influence, etc.; regardless of relations to other states provided sovereignty is not impaired; regardless of any change in the form of state organization, as from a republic to a monarchy or even of a temporary lapse in the exercise of sovereignty.
§ 44. Inequalities among States
While all states, members of the family of states, are equal in international law so far as their legal attributes are concerned, they may be very unequal in other respects.
(a) One of the oldest marks of inequality is that of court precedence, which for many years was a fertile source of difficulty, and was at last settled to the extent of ranking by title of diplomatic representative by the Congress of Vienna in 1815.[120]
(b) Inequalities in matters of ceremonial of various kinds have not disappeared. These may be based upon tradition or conventional grounds, and frequently give rise to difficulties if disregarded. These ceremonials may be (1) political as between the sovereigns in their official personal capacity as emperors, kings, dukes, etc., (2) court and diplomatic in interstate negotiations, (3) treaty as in alternat or in the alphabetical signing of treaties, (4) maritime ceremonial in salutes, etc.
(c) Inequalities in weight of influence in affairs.
(1) In Europe there is distinctly recognized in political practice an inequality of the states, and they are classed as "the great powers," "the minor powers," and sometimes such states as those of the Balkan peninsula are referred to as "the little powers" or "third-rate states." These divisions are based merely upon political grounds, and states may pass from one division to another as their wealth, area, or influence increases or decreases.
At the present time "the great powers," generally mentioned officially upon the continent in the alphabetical order of their names in French, i.e. Allemagne, Angleterre, Autriche, etc., are Germany, Great Britain, Austria, France, Italy, and Russia. During the sixteenth and seventeenth centuries Spain was numbered with "the great powers." Sweden was so ranked in the seventeenth century. Italy was counted with "the great powers" after 1870. The union of several powers upon certain lines of policy, since early in the nineteenth century, has been called "the concert of Europe," "the primacy of the great powers," etc. It was not the purpose of these great powers to establish new rules of international law; but as enunciated by the five powers, Nov. 15, 1818, it was "their invariable resolution never to depart, either among themselves, or in their relations with other states, from the strictest observation of the principles of the Rights of Nations."[121]
That the practice of the Great Powers has not been strictly in accord with these expressed principles, a glance will show. The immediate action of Austria, Russia, and Prussia in the Congress of Troppau, 1820, carried the principle of interference in the internal affairs of states so far that Great Britain found itself compelled to dissent. This continuance of the policy of the Holy Alliance in putting down movements in favor of popular liberty, wherever arising, led to gross violations of international rights. Nor did Great Britain become a party to the acts of the Congress of Verona in 1822, which led to intervention to prevent changes in the internal organization of Spain in 1823. The struggles of the Greeks for independence at about this time were naturally regarded by those upholding the ideas of the Holy Alliance as dangerous to those states desiring to prevent revolutionary movements. But the narrow policy of the Alliance was gradually losing support. The opposition of Great Britain and the death of Alexander of Russia in 1825 hastened its speedy fall. Meantime the idea of a collective authority in the Great Powers had been maintained. This began to be exercised in behalf of the Greeks in 1826, and has throughout the nineteenth century been repeatedly exercised in the same behalf, sometimes unselfishly, often from motives of mixed character. During the latter half of the nineteenth century the Great Powers have continually kept a close surveillance over Grecian affairs, and enforced their judgments in regard to Greece by force (destruction of Turkish fleet at Navarino, 1827); by providing form of government and naming monarch (1829 and later); by fixing and changing boundaries (1829 and often); by pacific blockade (1827, 1850, 1886, 1897); by regulating financial affairs, and by other means of varying degree of force.[122]
The Eastern question has particularly occupied the Concert, and the disposition of the territory once within the Turkish jurisdiction has offered a fertile field for varying policy.
The establishment of Belgium as a neutral state by the treaty to which Belgium was itself a party afforded another example of the influence of the Great Powers.
Since 1839 Egypt has also been subject to frequent control by the Great Powers.
Since 1885 the unappropriated portion of Africa has been brought into the range of action of the Concert by the theory of the sphere of influence.
The Concert of the Great Powers shows then a policy which is liable to change with expediency. The two great treaties of the Concert are those of Paris, 1856, and Berlin, 1878. Of these Holland says, "The treaties of Paris and of Berlin thus resemble one another, in that both alike are a negation of the right of any one Power, and an assertion of the right of the Powers collectively, to regulate the solution of the Eastern question."[123] The fact that the action of the Great Powers has been regarded as binding and tacitly accepted in Europe in certain questions in the East, Egypt, Greece, and Belgium does not give the sanction of international law to the action. The most that can be said is that it is an alliance of a loose character, whose authority is in proportion to the force behind its decisions.[124]
(2) Another feature in European politics giving rise to further inequalities in practice was introduced by the alliance of Germany and Austria in 1879 and Italy in 1883, which is now commonly known as the Triple Alliance. This belt of powers separating Eastern from Western Europe has materially affected the action of other powers.
The "friendly understanding" between France and Russia soon after the Triple Alliance affords a measure of counter-check upon the action of the other powers.
In spite of all these alliances and counter-alliances, the recognition of the weight of the decisions of the congresses and conferences of the Great Powers upon those subjects which are held to affect "the peace of Europe" have an influence comparable to that which might be assigned to a "Supreme Court of International Appeal."[125]
The United States upon the American continent in its enunciation of the Monroe Doctrine, and the subsequent interpretation of it, has assumed a position as arbiter among the American states in some respects similar to that of the European Concert among the European states. This attitude of the United States has weight in international practice, but cannot be regarded as a part of international law.
CHAPTER XI
JURISDICTION
§ 45. Jurisdiction in General
Jurisdiction is the right to exercise state authority, and for the purposes of international law may be classified as, (a) territorial or land jurisdiction, (b) fluvial and maritime, and (c) jurisdiction over persons.
§ 46. Territorial Domain and Jurisdiction
The word "territory" is sometimes used as equivalent to domain or dominion or to an expression covering the sphere of state control. Territory is also used in the stricter sense of the land area over which a state exercises its powers. In this stricter sense, territorial jurisdiction refers to the exercise of state authority over the land within its boundaries and those things which appertain to the land. The growing international importance of railroads, telegraph, and other modern means of communication has introduced new topics not considered in early treatises, and these are still under discussion.
The fundamental law of territorial jurisdiction is that a state has within its boundaries absolute and exclusive jurisdiction over all the land and those things which appertain thereto. Certain exemptions are specially provided in international law to which all states are considered as giving express or tacit consent. In other respects than those mentioned under exemptions, the state may, as sovereign, exercise its authority at discretion within the sphere it has set for itself. The state has, as against all other states, an exclusive title to all property within its territorial jurisdiction. As regards its own subjects, it has the paramount title which is recognized in the right of eminent domain, or the right to appropriate private property when necessary for public use. A state may also in its corporate capacity hold absolute ownership in property, as in its forts, arsenals, ships, etc.
The state also has the right to enforce a lien on the land and what appertains to it in the form of taxes.
§ 47. Method of Acquisition
The method of acquisition of territorial jurisdiction is a subject which has received much attention in international law, particularly because of the remarkable expansion of the territorial area of states within the modern period of international law since 1648.
The methods commonly considered are: (1) discovery, (2) occupation, (3) conquest, (4) cession, (5) prescription, (6) accretion.
(a) In the early period of European expansion through discovery, the doctrine that title to land hitherto unknown vested in the state whose subject discovered the land was current. Gross abuse of this doctrine led to the modification that discovery without occupation did not constitute a valid title. As the field of discovery has grown less, the importance of a definition of occupation has decreased.
(b) Occupation is held to begin at the time of effective application of state authority, and strictly continues only during the exercise of such authority. In fact, however, the title by occupation is held to extend to the adjacent unoccupied territory to which the state might potentially extend the exercise of its authority, or where it may from time to time exercise its authority in an undisputed manner. Title by occupation extends as a rule to that area, not under the jurisdiction of another state, which is necessary for the safety of the occupied area or is naturally dependent upon it, as to the territory drained by a river of which a given state holds the mouth.
The "Hinterland Doctrine," brought forth during the latter years of the nineteenth century, advances the idea that no such limits as above shall bound the area which can be claimed on ground of occupation, but that coast settlements give a prima facie title to the unexplored interior.
While the uncivilized peoples living within an area to which a civilized state claimed jurisdiction by virtue of occupancy were often unjustly treated, they however "were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil of their own will, except to the government claiming the right of preËmption.... The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil, and exercise such a degree of sovereignty as circumstances required, has never been questioned."[126]
(c) Conquest in the technical sense of the status of a territory which has come permanently under the jurisdiction of the enemy is distinct from military occupation, which is a simple fact supported by force.
Military occupation may pass into conquest (1) by actual occupation for a long period, with intention on the part of the occupier to continue the possession for an indefinite period, provided there has not been a continued and material effort upon the part of the former holder to regain possession. If, after a reasonable time, this effort to regain possession seems futile, the conquest may be regarded as complete. Each state must judge for itself as to the reasonableness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, to which the inhabitants acquiesce, a subjugated territory is incorporated under a new state. (3) A treaty of peace or act of cession may confirm the title by conquest.[127]
(d) Transfer of territory by cession may be by gift, exchange, or sale.
(1) The transfer by gift is simple, and carries such obligations as the parties interested may undertake. In 1850, by a treaty with Great Britain, "Horse-shoe Reef," in Lake Erie, was ceded to the United States for the purpose of the erection of a lighthouse, "provided the Government of the United States will engage to erect such lighthouse, and to maintain a light therein; and provided no fortification be erected on said Reef."[128]
(2) Transfer of territory by exchange is not common in modern times. By the Treaty of Berlin, 1878, a portion of Bessarabia, given to Roumania by the Treaty of Paris, 1856, was given back to Russia, and Roumania received in exchange a portion of Turkey.[129]
(3) Transfer of territory by sale has been frequent. From 1311, when the Markgraf of Brandenburg sold three villages to the Teutonic knights, down to the nineteenth century, instances of sale might be found, but the nineteenth century has numerous instances which have established the principles. Napoleon sold Louisiana to the United States in 1803, the Prince of Monaco made a sale to France in 1851, Russia sold Alaska to the United States in 1867, the Netherlands sold African colonies to Great Britain in 1872, Sweden sold the island of St. Bartholomy to France in 1877, the United States bought the Philippines in 1898. The fact of the sale is not a matter of international law, but is purely within the range of the public law of the countries concerned. The change of jurisdiction of the area gives rise to certain possible complications which may involve principles of international law, though generally the conditions of sale settle such questions.
(4) Cession of jurisdiction over a given portion of territory as surety for the performance of a certain act, payment of an indemnity or the like, has for some years been a method of acquiring temporary jurisdiction which frequently becomes permanent.
(e) Prescription, or the acquisition of territory by virtue of long-continued possession, is similar to prescription in public law as applied to the acquisition of property by persons. The recognition of this principle prevents many disputes over jurisdiction of territory which originally may have been acquired in a manner open to question, e.g. the holding of the territory by the states parties to the partition of Poland may through long-continued possession be valid by prescription if not by the original act.
In regard to prescription, it should be observed that (1) it is a title valid only against other states. The inhabitants do not necessarily lose rights originally possessed. (2) This method avoids perpetual conflicts on ground of defect of original title. (3) Prescription may be considered as effective when other states have for a considerable time made no objection, threatening the exercise of jurisdiction by the state in possession. While some authors deny this right, it is generally admitted in fact, and by most of the leading authorities acknowledged in theory.[130]
(f) When land areas in the neighborhood of the boundary of a state are changed, territory may be acquired by accretion. (1) Land formed by alluvium or other cause near the coast of a state is held to belong to that state. Lord Stowell, in 1805, held that mud islands formed by alluvium from the Mississippi River should for international law purposes be held as part of the United States territory.[131] In general, alluvium becomes the property of the state to which it attaches, following the Roman law.[132] (2) Where a river is the boundary, the rule is well-established that islands formed on either side of the deepest channel belong to the state upon that side of the channel; an island formed mid-stream is divided by the old channel line. (3) When a river's channel is suddenly changed so as to be entirely within the territory of either state, the boundary line remains as before in the old channel. So also the boundary line of territory is not changed, even if the bed of a lake be changed.
§ 48. Qualified Jurisdiction
Two degrees of qualified territorial jurisdiction are exercised in the protectorate and the sphere of influence.
(a) Protectorates. The protecting state usually acquires the jurisdiction over all external affairs of the protected community, often including territorial waters, and assumes the direction of its international relations. A measure of jurisdiction of those internal affairs which may lead to international complications is also generally assumed by the protecting state, e.g. treatment of foreigners in the protected territory, relations of protected subjects in foreign countries, use of flag, etc. The conditions of protected states vary greatly, hardly the same description holding for any two. It may be safe to say that (1) the protecting state cannot be held responsible for the establishment of any particular form of government, (2) a reasonable degree of security and justice must be maintained. As to what constitutes a "reasonable degree," the circumstances of each case must determine; then the protecting state is bound to afford such justice and security and (3) must be able to exercise within the protected area such powers as are necessary to meet its responsibilities.
(b) The term "sphere of influence" has been used since the Berlin Conference, 1884-1885, to indicate a sort of attenuated protectorate in which the aim is to secure the rights without the obligations. First applied to Africa in the partition of the unexplored interior among the European powers,—Great Britain, Germany, France, Italy, Portugal,—it has since been extended to other regions. This doctrine of mutual exclusion of each from the "spheres" of all the others cannot be held to bind any states not party to the agreement.
The method of exercise of "influence," while varying, usually consists in making with the native chiefs treaties which convey privileges other than the cession of sovereignty. These privileges are often commercial, and may be with the state direct or agreements with some company to whom the state has delegated a portion of its authority, as in the African trade companies.
The "spheres of influence," gradually with the growth of power of the influencing state and the necessity of protecting the "sphere," against other states, become less vague in their relations to the influencing state and merge into protectorates or some other more stable condition.
This "sphere of influence" idea, as well as the "Hinterland Doctrine," can be of only temporary importance, owing to the limited area still open to occupation. It is maintained that within the "sphere" the influencing state has jurisdiction to the exclusion of another state, and that it has a right to occupy the territory later, if advisable. The influencing state disclaims all obligations possible.[133]
§ 49. Maritime and Fluvial Jurisdiction
Wheaton states as a general principle of maritime and fluvial jurisdiction, "Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss or inconvenience to the proprietor."[134] While the tendency of international policy is toward unrestricted freedom of river navigation, yet the principle as enunciated by Wheaton cannot be said to be established in practice. The American and Continental writers have generally favored the principle enunciated by Wheaton. English writers have contended against this position as a right, but admit that the principle is becoming established by numerous treaties and conventions. As to the sea, the principle may be said to be established.
§ 50. Rivers
The jurisdiction of rivers is a question which is not identical with the right of navigation of rivers, and may best be considered apart. The question of jurisdiction is one of general international principle, while the question of river navigation is one of particular provision, in many instances.
The rivers fall under three classes:—
1. Rivers which traverse only one state.
2. Rivers which traverse two or more states.
3. Rivers upon the opposite banks of which different states have jurisdiction.
(a) Rivers which traverse only one state are exclusively within the jurisdiction of that state. This jurisdiction may extend even to the forbidding of the use of a river to other states, and justifies the state in prescribing such regulations for its use as it may deem fit.
(b) Rivers flowing through two or more states are for those parts within the boundaries of each state under its jurisdiction for the purposes of police, tolls, and general regulations. The right of absolute exclusion of the co-riparian states by any one of the states through which a river flows has been the subject of much discussion, and authorities of great weight can be found upon either side.
(c) When two states have jurisdiction upon opposite banks of a river, the jurisdiction of each state extends to the middle of the main channel or thalweg. Before the Treaty of Luneville (Art. VI.), 1801, it had been common to consider the limit of jurisdiction of the two states the middle of the river, a line much more difficult to determine, and more changeable than the channel line. The thalweg has been frequently confirmed as the accepted boundary where no conventions to the contrary existed.[135]
§ 51. The Navigation of Rivers
The laws of jurisdiction of rivers are generally accepted. The early idea that there was a natural right of navigation, and innocent passage has received less support during the nineteenth century than formerly. The history of river navigation during the nineteenth century, as shown in the discussions between the representatives of various nations, and in the treaties and conventions agreed upon, as well as in treaties and declarations voluntarily made in regard to navigation of rivers, seem to furnish general rules.
1. That international law gives to other states no right of navigation of rivers wholly within the jurisdiction of another state.
2. That when a river forms the boundary of two or more states it is open to the navigation of each of the states.
3. That when a river passes through two or more states, international law gives no right to one of the states to pass through the part of the river in the other state or states. There is a strong moral obligation resting upon the states below to allow freedom of navigation through the river to the states upon the upper course of the river. The right of innocent use, innocent passage, freedom of river navigation, has been maintained on various grounds and in various forms, by many authorities.[136] Those who take a position opposed to this claim, assert that the navigation of rivers is, and properly should be, to avoid more serious complications, a matter of convention.
In fact, since the French Revolution, the subject has so frequently been a matter of convention[137] as to establish the general principles, that in case of no special restrictions, river navigation is free, subject to such regulations as the state having jurisdiction may deem necessary, and that the privilege of navigation carries with it the use of the river banks, so far as is necessary for purpose of navigation.[138]
§ 52. Enclosed Waters
(a) The rule in regard to waters wholly within the territory of a state such as lakes, etc., is that the jurisdiction is exclusively in that state.
(b) Gulfs, bays, and estuaries are regarded as within the jurisdiction of the state or states enclosing them, provided the mouth is not more than six miles in width. A line drawn from headland to headland on either side of the mouth is considered as the coast line of the state, and for purposes of maritime jurisdiction the marine league is measured from this line. Waters having wider openings into the sea have been claimed on special grounds, as the claim of the United States to territorial jurisdiction over the Chesapeake and Delaware bays. France and Germany claim jurisdiction over gulfs having outlets not over ten miles in width. Between states parties to treaties special claims have been made and allowed. These treaty stipulations do not necessarily bind states not parties to the treaty, e.g. treaty between Great Britain and France, 1839. "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fishing upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland."[139]
The present tendency is toward a restricted jurisdiction and the acceptance of the six-mile limit of width of mouth, though there is a reasonable claim that some ratio should be fixed for very large interior water areas to which the entrance, though more than six miles, is yet relatively narrow.
(c) Straits less than six miles in width are within the jurisdiction of the shore state or states. In case two shores are territory of different states, each state has jurisdiction to the middle of the navigable channel.
Where a state owns both shores of a strait which does not exceed six miles in width, the strait is within its territorial jurisdiction, though other states have the right of navigation. This right of navigation is in general conferred upon both merchant and war vessels of states at peace with the territorial power. These vessels must, however, comply with proper regulations in regard to navigation. The claim to exclusive jurisdiction over such narrow straits has been abandoned.
The claim of the king of Denmark to jurisdiction over the Danish Sound and the Two Belts, which entitled him to levy tolls upon vessels passing through, was based on prescription and fortified by treaties as early as the one with the Hanse towns in 1368. Against these tolls, as an unjust burden upon commerce, the United States protested in 1848, at the same time maintaining that Denmark had not the right of exclusive jurisdiction. The European states in 1855 paid a lump sum in capitalization of the sound dues. The United States, refusing to recognize the right of Denmark to levy tolls, paid $393,011 in 1857 in consideration of Denmark's agreement to keep up lighthouses, etc.
The navigation of the Bosphorus and Dardanelles has been a subject of discussion and treaty since 1774, when Russia compelled Turkey to open these straits to the passage of merchant vessels. War vessels were excluded till 1856 when, by convention attached to the Treaty of Paris, such vessels were admitted for special purposes of service to the embassies at Constantinople and protection of improvements on the Danube waterway. By the Treaty of 1871 the Sultan may admit other war vessels, if necessary for carrying out terms of the Treaty of Paris. The United States has never acknowledged that the Sultan had the right to exclude its war vessels, though always asking permission of the Sultan to pass the Dardanelles.
As a generally accepted principle the law may be stated as follows: straits connecting free seas are open to the navigation of all states, subject of course to reasonable jurisdiction of the territorial power.
(d) Canals connecting large bodies of water have been regarded as in most respects subject to jurisdiction similar to that of straits. Yet as these canals are constructed at a cost, they must also be given exemptions from certain restrictions which properly apply to natural channels.
The position of the Suez Canal as an international waterway gives some indication of existing practice.
It is to be noted, (1) that the canal is an artificial waterway; (2) that M. de Lesseps, a foreigner, in 1854, under authorization of the Viceroy, undertook its construction as a business venture; (3) that it is wholly within the territory of Egypt.
The case is then one of an artificial waterway, constructed by private capital, wholly within the territory of a state.
The negotiations continued from 1869, when the canal was opened, to 1888, when a convention was signed by the Six Great Powers, and by the Netherlands, Spain, and Turkey, by which the status of the canal was defined. By Article I. of the Conventional Act, "The Suez Maritime Canal shall always be free and open, in the time of war as in the time of peace, to every vessel of commerce or of war, without distinction of flag.
"Consequently, the High Contracting Parties agree not in any way to interfere with the free use of the Canal, in time of war as in time of peace.
"The Canal shall never be subjected to the exercise of the right of blockade."
By Article IV., the canal is not to become the base of hostile action. The marine league is to be respected in the action of foreign vessels. The twenty-four hour period was to elapse between the sailing of hostile vessels.
By Article VII., the powers might keep two war vessels in the "ports of access of Port Said and Suez," though "this right shall not be exercised by belligerents."
By Article X., the territorial jurisdiction for general administrative purposes is affirmed, and likewise for sanitary measures in Article XV.[140]
This Suez Canal of such great international importance is by this convention within the jurisdiction of Egypt, but the powers have assumed to provide that this jurisdiction shall not be exercised in such a way as to prevent innocent passage.
The Panama or Nicaraguan Canal is in part provided for by the Clayton-Bulwer Treaty, between the United States and Great Britain in 1850, but in case of actual operation new agreements would be necessary.[141]
The canal at Corinth, shortening somewhat the route to the Black Sea and Asia Minor, was opened in 1893. This canal does not, like the Suez, greatly change the current of the world's intercourse, and is entirely within the jurisdiction of Greece.
Similarly the canal at Kiel, opened in 1896, is wholly within the jurisdiction of Germany.
§ 53. The Three-mile Limit
One of the most generally recognized rules of international law is that the jurisdiction of a state extends upon the open sea to a distance of three miles from the low-water mark. In the words of the Act of Parliament passed in consequence of the case of the Franconia,[142] 1878 (41 and 42 Victoria, c. 73), "The territorial waters of Her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." The three-mile limit became more and more generally recognized after the publication of Bynkershoek's "De Dominio Maris," in which he enunciates the principle that the territorial jurisdiction ends where the effective force of arms ends, which being approximately three miles from shore at that time, has since been usually accepted.
For special purposes a wider limit of jurisdiction is maintained and sometimes accepted by courtesy, though it is doubtful whether any state would attempt to hold its position against a protest from another state. The claims are based on the jurisdiction over fisheries, the enforcement of revenue laws, and the maintenance of neutrality. Such claims as the former English claims to the "King's Chambers," announced in 1604 to be bounded by a "straight line drawn from one point to another about the realm of England," as from the Lizard to Land's End, would not now receive serious support; and since the rejection of the claims of the United States by the Bering Sea Tribunal, it can be safely stated that the expansion of territorial jurisdiction upon the open sea will only come through the consensus of states. The desirability of some new regulations upon marine jurisdiction was well shown in the discussions of the Institute of International Law at its meeting in Paris in 1894.[143]
Within the three-mile limit the jurisdiction extends to commercial regulations, rules for pilotage and anchorage, sanitary and quarantine regulations, control of fisheries, revenue, general police, and in time of war to the enforcement of neutrality.
§ 54. Fisheries
The existence of fisheries has given rise to some special claims to extension of maritime jurisdiction.
(a) As a general rule, the right of fishing on the high sea belongs to all states alike, but each must respect the rights of others. In order that these rights might be defined, it has in many cases been necessary to resort to conventions. One of the most recent examples of this kind is seen in the convention in regard to the North Sea Fisheries, May 6, 1882, to which Belgium, Denmark, France, Germany, Great Britain, and Holland are parties. The cruisers of any of these states may present the case of the fishing vessel violating the regulations of the convention in the country to which the vessel belongs, but the trial and penalty belong to the country of the vessel.[144]
(b) Special privileges granted by one state to another, or secured by custom, become servitudes, as in the case of the Canadian fisheries, and must depend upon the interpretation of the treaties by which they were granted.
By the Treaty of 1783 the United States have the right of fishing on certain parts of the coast of the British Dominion in North America.
Great Britain claimed that these rights were annulled by the Treaty of Ghent, 1814, which put an end to the War of 1812 as that treaty was silent upon the subject. The United States declared "they were not annulled by the war as they were enjoyed by the colonists before the separation from England in 1783, and so existed perpetually independent of treaty."
This claim was adjusted by the Treaty of 1818, which gave to the United States permission to take fish on certain parts of the coast of Newfoundland and Labrador, to dry and cure fish in certain inlets, and to enter other inlets for shelter, repairs, and supplies.
Disputes arising under this treaty were settled by the Treaty of 1854, which gave to Canadian fishermen certain rights of fishing along the eastern coast of the United States north of the thirty-sixth parallel of latitude.
The United States took action to terminate this treaty in accord with its terms in 1866. The conditions of the Treaty of 1818 revived.
The Treaty of Washington, 1871, practically reËstablishes the provisions of the Treaty of 1854, specifying that the difference in value between the rights granted by each state to the other should be determined by a commission. This commission awarded $5,500,000 to Great Britain in 1877.[145]
In accord with the provisions of the Treaty of 1871, it was terminated by the United States in 1886, the provisions of the Treaty of 1818 again coming in force.
A law of March 3, 1897,[146] provides that the President may in certain contingencies deny vessels of the British Dominions of North America entry into the waters of the United States, and may also prohibit the importation of fish and other goods.
(c) Another question which has given rise to much discussion is that of the seal-fishing in Bering Sea.[147]
In 1821 Russia claimed that the Pacific north of latitude 51° was mare clausum. The United States and Great Britain denied this claim. By conventions, 1824 and 1825, Russia conceded to these nations rights of navigation, fishing, etc. After the United States in 1867 acquired Russian America, seal-fishing assumed importance. As the Canadian fishermen were not restrained by the laws binding the United States fishermen, it was feared that the seal would become extinct. In 1886 three Canadian schooners were by decree of the district court of Sitka confiscated for the violation of the laws of the United States in regard to seal-fishing, the judge charging the jury that the territorial waters of Alaska embraced the area bounded by the limits named in the treaty of cession to the United States of 1867 as those "within which the territories and dominion conveyed are contained."[148] This act with others of similar character led to a formal protest by Great Britain.
The questions in dispute were referred to a court of arbitration which decided against the claims of the United States, denying that the sea referred to as the Bering Sea was mare clausum, and denying that the United States acquired jurisdiction by prescriptive right from Russia in 1867. It was also decided that the United States had no right of property in the seals in the open sea, and that the destruction of these animals was contrary to the laws of nature. The United States and Great Britain, however, entered into an agreement in regard to the protection and taking of the seals by their subjects. Other nations were also to be asked to become parties to the agreement.[149]
It may be regarded as finally established that fishing in the open sea is free to all, though of course states may by conventions establish regulations which shall be binding upon their subjects.
§ 55. Vessels
At the present time every vessel must be under the jurisdiction of some state.
(a) Classes.—Vessels are divided into two general classes.
(1) Public vessels, which include ships of war, government vessels engaged in public service, and vessels employed in the service of the state and in command of government officers.
(2) Private vessels, owned by individuals and under regulations varying in different states.
(b) The nationality of a public vessel is determined by its flag. In an extreme case the word of the commander is held to be sufficient proof.
In case of a private vessel the flag is a common evidence, but in case of doubt the vessel must show to proper authorities its papers which certify its nationality.
(c) The general exercise of jurisdiction over vessels is as follows:—
(1) Upon the high seas and within its own waters the jurisdiction of a state over its public and private vessels is exclusive for all cases.
(2) Over public vessels in foreign waters, the jurisdiction of the state to which a public vessel belongs is exclusive for all matters of internal economy. The vessels are subject to port regulations in matters of anchorage, public safety, etc. As Dana says in his note to Wheaton, "It may be considered as established law, now, that the public vessels of a foreign state coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits."[150] In general practice the waters of all states are open to the vessels of war of all other states with which they are at peace. This is a matter of courtesy and not of right, and is in fact sometimes denied, as by the provision of the Treaty of Berlin, 1878, "The port of Antivari and all the waters of Montenegro shall remain closed to the ships of war of all nations."[151] Various regulations may require, without offence, notice of arrival, probable duration of stay, rank of commander, etc.
The boats, rafts, etc., attached to a vessel of war are regarded as a part of the ship while engaged in the public service.
While there is some difference of opinion as to the immunities of the persons belonging to a ship of war in a foreign harbor, a generally admitted rule seems to be that while the persons of a ship of war are engaged in any public service that is not prohibited by the local authorities, such persons are exempt from local jurisdiction. The ship's crew would not be arrested and detained by local authorities for minor breaches of local regulations, though they might be sent on board their vessel with statement of reasons for such action. If the action of the crew constitutes a violation of the law of the country to which they belong, the commander of the ship may punish them, and report his action to the local authorities. In case of crimes of serious nature the commander may turn the offenders over to the local authorities, but must assure them a fair trial.
The commander of a vessel is, of course, always responsible to his home government, and his action may become the subject of diplomatic negotiations.
The question of right of asylum on board a ship of war has been much discussed. First, Most civilized states now afford asylum on board their ships of war to those who, in the less civilized regions, flee from slavery.[152] Second, In cases of revolution ships of war sometimes afford refuge to members of the defeated party, though the ship of war may not be used as a safe point from which further hostilities may be undertaken. Third, A commander may afford asylum to political refugees under circumstances which he thinks advisable. Fourth, In cases where asylum is granted to offenders whether political, or (in case of treaty right) criminal, if the request of the local authorities for the release of the criminal is refused by the commander of the ship, there is no recourse except to the diplomatic channels through extradition.
The immunities granted to vessels of war are also generally conceded to other vessels strictly upon public service, e.g. carrying an ambassador to his post. The largest possible exemption is given to a vessel conveying the sovereign of a state. Vessels transporting military forces in command of regularly commissioned government officers are usually granted immunities accorded to men-of-war.
(3) Over private vessels in foreign waters the amount of jurisdiction claimed by different states varies.
The principle which is meeting with growing favor, as shown by practice and by treaty stipulation, is stated by Chief Justice Waite in 1886 as follows, "Disorders which disturb only the peace of the ship, or those on board, are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction."[153]
The position of France is, briefly, to assume no jurisdiction over foreign merchantmen within her ports save in cases where the act affects some person other than those belonging to the ship, where the local authorities are expressly called upon to interfere, or, when the order of the port is disturbed.[154]
The British Territorial Waters Jurisdiction Act of Aug. 28, 1878, gives jurisdiction to the authorities over all acts committed within the marine league, even though the ships are not anchored but merely passing through territorial waters.[155] This is an extreme position, and not supported by the best authorities, even in Great Britain.
The position of France, as stated above, is open to little objection either in practice or theory, and is more and more becoming a form of treaty agreement, and may be considered generally approved. Where these principles are adopted the jurisdiction of breaches of order within the ship may be referred to the home consul at the port, who has jurisdiction, and if necessary may call upon the local officers to assist him in enforcing his authority.
(4) In recent years special exemption from jurisdiction has been accorded to certain semi-public vessels engaged particularly in the postal and scientific service. Vessels in the postal service have by treaties been accorded special freedom from customs and port regulations; and by the Convention between Great Britain and France, Aug. 30, 1890 (Art. 9), it is agreed that in time of war such vessels shall be free from molestation till one of the states shall give formal notice that communication is at an end.
§ 56. Jurisdiction over Persons—Nationality
Under the discussion of jurisdiction of the state over persons comes the question of nationality. Nationality involves the reciprocal relations of allegiance and protection on the part of the person and state. It corresponds to citizenship in the broad sense of that term. In general a state may exercise jurisdiction over its own subjects or citizens as it will, and the relations of a state to its citizens are matters of municipal law only.
A state exercises jurisdiction over all persons within its limits except certain officers of other states by exterritoriality entitled to exemption from local jurisdiction. In some of the Eastern states citizens of Western states are by treaty exempt from certain local laws. This last exemption may properly be said to be by local law, as a treaty becomes a part of the state law for the subjects upon which it touches.
The jurisdiction also varies with the status of the person as regards his relations to other states. The conflict of laws in regard to nationality forms an important part of private international law.
§ 57. Jurisdiction over Natural-born Subjects
Children born within a state of which the parents are citizens are natural-born subjects of that state. Such persons are fully under the local jurisdiction.
Foundlings, because of the uncertainty of parentage, are considered subjects of the state in which they are found.
Illegitimate children take the nationality of the mother, provided they are born in the state of which the mother is subject.
The great bulk of the population of all states, except those most recently founded, is natural-born, and therefore fully under local jurisdiction.
§ 58. Foreign-born Subjects
It is the general principle that each state determines citizenship by its own laws. The status of persons born abroad may become very uncertain by virtue of the conflict of laws of the state of which one or both the parents are citizens and the state in which the child is born.
These laws in regard to children born to parents while sojourning in foreign countries may be classified as follows:—
(a) The child born in the foreign country is a subject of the state of which his parents are citizens. That the child inherits the nationality of his father is a common maxim known as jus sanguinis. The United States law says, "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."[156] The jus sanguinis is followed by Austria,[157] Germany,[158] Hungary,[159] Sweden,[160] Switzerland,[161] and by some of the smaller European states.
(b) Certain states follow the rule of jus soli, maintaining that the place of birth determines the nationality. Great Britain, by Article 4, of the Act of May 12, 1870, adopts this principle. By the Fourteenth Amendment of the Constitution of the United States, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." The laws of the United States have given rise to many questions.[162] Portugal and most of the South American states follow the jus soli.
(c) Other states follow sometimes the jus sanguinis, sometimes jus soli, and sometimes modifications of these laws. The laws of Belgium and Spain regard the child of an alien as an alien, though on attaining majority the child may choose the citizenship of the country of his birth. The French laws of June 26-28, 1889, and July 22, 1893, consider as subjects the children born abroad to French citizens, also the children of foreigners born in France, unless these children within one year after attaining majority elect the nationality of their parents. Most states allow the descendants born to foreigners sojourning within their limits to elect their allegiance on attaining majority. Switzerland, however, strongly maintains the jus sanguinis, without according any choice to the descendants born to foreigners within her limits, or to her own subjects born abroad except by formal renunciation of citizenship. Thus the child of a citizen of Switzerland born in France would be by French law a citizen of France, and by Swiss law a citizen of Switzerland.
By the law of Germany, a citizen of Germany sojourning more than ten years abroad without registration at his consulate loses his German citizenship, without necessarily acquiring the citizenship of the country of his sojourn, thereby becoming heimatlos, or a "man without a country."
At the present time the laws in regard to descendants born to parents sojourning in a foreign state show the widest diversity and give rise to unfortunate complications.[163]
§ 59. Jurisdiction by Virtue of Acquired Nationality
The jurisdiction of a state extends to those who voluntarily acquire its citizenship.
(a) A woman in most states by marriage acquires the nationality of her husband. In some of the South American states the husband acquires the citizenship of his wife. By the law of Belgium, Aug. 6, 1881, and by the law of France, June 26, 1889, it was made easier for foreigners who had married women natives of those states to acquire Belgian or French nationality respectively. The United States law, while holding that a woman marrying a citizen of the United States acquires his nationality, does not hold that an American woman on marrying a foreigner thereby becomes expatriated, unless she takes up her residence in her husband's state.[164]
(b) A state may acquire jurisdiction over persons by naturalization, which is an act of sovereignty by which a foreigner is admitted to citizenship in another state. The method of naturalization is in accord with local law and varies greatly in different states.[165] The law of the United States prescribes that Congress has power "to establish an uniform rule of naturalization."[166] The foreigner desiring naturalization in the United States must declare on oath before a court after three years of residence in this country, his intent to become a citizen, and, after he has remained here two years longer he must take an oath of allegiance to the United States and of renunciation of his former country. An alien who has resided in the United States the three years next preceding the attaining of his majority and who continues to reside in this country at the time of his application, may, after reaching twenty-one years of age, and after residing here five years including the three years of minority, become a citizen by making a declaration at the time of admission.[167]
(c) A state may acquire jurisdiction over persons by annexation of the territory upon which they reside. The territory may be acquired by cession, exchange, purchase, conquest, etc. The conditions of the transfer of allegiance from the state formerly possessing the territory is usually fixed by the treaty. This transfer is known as collective naturalization.
Ordinarily a right to choose the allegiance to either state is left to the inhabitants of an annexed territory. Removal from the new jurisdiction is usually required if the inhabitant does not choose to change his allegiance. If the inhabitant does not take any action, it is held that he thereby tacitly transfers his allegiance unless there are special treaty provisions.[168]
(d) The effect of naturalization, whatever the method, is to make the person a citizen of the state into which he is admitted, and over him that state has jurisdiction in all places outside the jurisdiction of the state whose allegiance he has forsworn.
There is conflict of the laws determining the relations to his native state of a person who has renounced his allegiance to one state by naturalization in another state. The general law is, that he becomes entitled to all the privileges of a subject of the state of his new allegiance, except that when he is within his first state he becomes liable for the performance of any obligation which he may have incurred prior to his naturalization.[169]
A state may determine what conditions must be fulfilled in order to constitute a valid severance of allegiance. Laws are diverse upon this subject. Many states have maintained, and some still maintain, that allegiance is inalienable.[170] England formally maintained this principle till 1870, and her attempts to enforce the principle brought on the War of 1812 with the United States.
In certain countries, as in the United States and Switzerland, minor children are held to follow the allegiance of their father in case of naturalization. The French law claims that the minor child's nationality is that of his birthplace. The subject has been determined in some instances by treaty stipulation, yet must be considered, like many questions of naturalization, as unsettled.
Many states distinguish in law and more in practice between that naturalization which carries with it protection of the state and allegiance of the subject (naturalisation ordinaire) and that naturalization which carries full political privileges (grande naturalisation).
(e) Incomplete naturalization. The fact that a person has taken the preliminary steps toward acquiring the nationality of a foreign state, by making a declaration of his intention or otherwise, may give the state to which the person has assumed an inchoate allegiance the right of protection of the declarant against third states,[171] though not necessarily against the native state of the declarant.[172] Of the privileges to be accorded to one who has declared his intention to become a citizen of the United States, Secretary Marcy said, "The declaration, indeed, is prima facie evidence that the person who made it was, at its date, domiciled in the United States, and entitled thereby, though not to all, to certain rights of a citizen, and to much more consideration when abroad than is due to one who has never been in our country; but the declarant, not being a citizen under our laws, even while domiciled here, cannot enjoy all the rights of citizenship either here or abroad;"[173] and Mr. Marcy also says of the papers proving domicile, "And to this simple certificate ... the European authorities are at liberty to pay such respect as they think proper."[174]
In 1853 a case arose in which the United States affirmed: "It is a maxim of international law that domicile confers national character; ... international law looks only to the national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to respect him, in regard to protection, as an American citizen."[175] This statement was made in support of the position assumed by the United States in the case of one Martin Koszta. Koszta, a Hungarian refugee of 1848-1849, went to Turkey, was imprisoned, later was released on condition of leaving the country, went to the United States, declared his intention to become a citizen, and in 1853 returned to Turkey. He went into business at Smyrna, obtained there a traveling pass certifying that he was under protection of the United States, was seized, thrown into the sea by persons employed by the Austrian consulate, and was picked up by an Austrian man-of-war, Hussar. The consul of the United States remonstrated, but the captain of the Hussar held Koszta. The chargÉ d'affaires requested the aid of a United States man-of-war, whose captain demanded Koszta's release. To avoid conflict in the port the mediation of the French consul was accepted, and Koszta was intrusted, pending settlement of claims, to the French consul. Finally Koszta was allowed to return to the United States, though Austria maintained her right to proceed against him if he returned to Turkey. The United States in this case undoubtedly took an extreme position in its claim of jurisdiction.
By an act of March 3, 1863, the United States declared that those who had taken the preliminary oath of intention to become citizens were liable to military service. Upon protest by foreign nations against this act of Congress, the President, by proclamation, announced that, as it had been claimed that "such persons, under treaties or the law of nations, retain a right to renounce that purpose, and to forego the privileges of citizenship and residence within the United States, under the obligations imposed by the aforesaid act of Congress,"[176] to avoid all misapprehension, the plea of alienage would be accepted for sixty-five days, during which time such persons as had only declared their intention to become citizens might depart.
The position in the Koszta case, where the claim to the protection of the United States was made when the inchoate citizen was in trouble, and the claim of the inchoate citizens to renounce their allegiance when the state was in difficulties, show some of the problems to which the diverse laws and practices in regard to naturalization have given rise.
The municipal laws of some of the local states of the United States admit to all political privileges of the local state those who have taken the first steps toward naturalization. It is generally conceded that such as have exercised the privileges of full citizens can properly be held to the obligations of full citizens, as was declared in the above proclamation.
The inconsistencies in regard to jurisdiction over those naturalized or incompletely naturalized are gradually yielding to treaty provisions which distinctly determine the position of such persons.
§ 60. Jurisdiction over Aliens
Citizens of one state, when sojourning in a foreign state, have a dual relationship by which they may claim certain privileges, both from their native state and from the foreign state.
(a) The native state naturally has jurisdiction of a qualified sort over its subjects even when they are in a foreign state.
(1) The right to make emigration laws may lead to restrictions binding in a foreign state. A state may banish its subjects. No other state is obliged to receive them, however.
(2) A state may recall its citizens for special reasons, as in the case of Greece in 1897, when Greek citizens were recalled for military service.
(3) There is much difference of opinion upon the question of penal jurisdiction of the native state over its subjects who have committed crimes in a foreign state. In general American and English authorities agree that penal law is territorial. Some of the continental authorities take the view that a citizen on his return may be punished for crimes committed in a foreign state. The English law takes this position in certain crimes, as treason, bigamy, and premeditated murder. Usually a crime committed upon a vessel in a foreign harbor is held as within the jurisdiction of the state of the vessel's registry.
(4) A state may interfere to protect its subjects in a foreign state, thus extending its authority in their behalf. This has been frequently done to protect Western sojourners in Eastern states, e.g. the demands of Germany, in 1898, for concessions from China on account of injuries to missionaries. These demands, accompanied by a naval demonstration, resulted in the cession of Kaio-Chau.
(b) The jurisdiction of a state over aliens within its territory is very extensive.
(1) The absolute right of exclusion of all foreigners would hardly be maintained by any civilized state, though it could be deduced from the doctrine of sovereignty. Whether justly or not, Japan and China have been compelled by force to cede certain rights to states demanding admission for their citizens.
(2) The right of expulsion is, however, generally maintained. This right should, however, be exercised most carefully, as the fact of admission carries with it some obligation on the part of the admitting state.
(3) The right to conditional admission is generally allowed, as seen in laws in regard to immigration.
(4) The foreign state may impose such restrictions upon settlement as it sees fit.
(5) A foreign state may levy such taxes upon the person and goods of aliens as are in accord with state law.
(6) Aliens are subject to the local sanitary and police jurisdiction.
(7) The foreign state has penal jurisdiction over aliens for crimes committed within territorial limits, and many states maintain, also, for such crimes as plotting against the state, counterfeiting state money, or crimes directly imperiling the state's well-being even when committed outside of state limits.
(8) The state may require aliens to render service such as is necessary to maintain public order, even military service, to ward off immediate and sudden danger, e.g. as an attack by savages, a mob, etc., but
(9) A state cannot compel aliens to enter its military service for the securing of political ends, or for the general ends of war.
(10) In nearly all states freedom of commerce is now conceded, the state giving to native and foreigner similar privileges. China still restricts trade to certain free ports.
(11) The holding and bequeathing of property of whatever sort is subject to local law.
(12) Freedom of speech and of worship are also subject to local law.
All these laws are subject to the exemptions in favor of sovereigns, diplomatic agents, etc.
(c) Ordinarily the identity of an alien is established by a passport. This may also secure for him a measure of care in a foreign state. Below is the form of passport.
| Good only for two years from date. |
| UNITED STATES OF AMERICA |
| Department of State |
| To all to whom these presents shall come, Greeting: |
| I, the undersigned, Secretary of State of the United States of |
| America, hereby request all whom |
| DESCRIPTION | it may concern to permit |
| Age.... Years..................... | |
| Stature... Feet... Inches..., Eng. | .............. ..............., |
| Forehead.......................... | a Citizen of the United States, |
| Eyes.............................. | ........................ safely |
| Nose.............................. | and freely to pass, and in case of |
| Mouth............................. | need to give ... all lawful Aid |
| Chin.............................. | and Protection. |
| Hair.............................. | |
| Complexion........................ | Given under my hand and the |
| Face.............................. | Seal of the Department of State, |
| at the City of Washington, the |
| (SEAL) | ... day of ....... in the year |
| 19..., and of the Independence of |
| (Signature of the Bearer) | the United States the one hundred |
| .................................. | and................. |
| No..... | ................ |
§ 61. Exemptions from Jurisdiction—General
As a general principle, the sovereignty of a state within its boundaries is complete and exclusive. For various reasons there has grown up the custom of granting immunity from local jurisdiction to certain persons generally representing the public authority of a friendly state. This immunity may extend to those persons and things under their control.
This immunity has been called exterritoriality. The persons and things thus exempt from local jurisdiction are regarded as carrying with them the territorial status of their native state, or as being for purposes of jurisdiction within their own state territory, and beyond that of the state in which they are geographically. Wherever they may go they carry with them the territory and jurisdiction of their home state. Doubtless this doctrine of exterritoriality in the extreme form may be carried too far, as many late writers contend, and some have desired another term, as immunity from jurisdiction, as more exact and correct.[177] Such a term would have the merit of directing attention to the nature of the relation which the persons concerned sustained to the state. Hall sums up the case by saying, "If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested."[178] Exterritoriality should be viewed as based on the immunities conceded to public persons, rather than as the source of these immunities.
§ 62. Exemption of Sovereigns
Sovereigns sojourning in their official capacity in foreign countries are exempt from local jurisdiction. This principle is based, not merely upon courtesy, but also upon convenience and necessity. The sovereign represents the state, and therefore cannot be subjected to the jurisdiction of another state without waiving the sovereignty, and in so far depriving the state of one of its essential qualities. Nor can the visiting sovereign exercise any authority which would infringe the sovereign powers of the state in which he is. The visiting sovereign can only claim immunity for such action as is in accord with the necessities of his convenient sojourn. He, his retinue, and effects, are exempt from civil and criminal jurisdiction. He is free from taxes, duties, police and administrative regulations. In the case of Vavasseur v. Krupp, 1878, it was decided that infringement of the patent law did not constitute a ground for suit against a sovereign. In this case Vavasseur brought action against Krupp for infringement of patent on shells in custody of the agents of the Mikado of Japan. The action resulted in an injunction preventing removal of the shells to the Mikado's ships, but on application of the Mikado to remove the shells as his property, the court held that, even if the property in question infringed a patent, the Mikado could not be sued and his property could not be held.[179] The principle that the sovereign is free from suit has frequently been decided by the courts of various countries. A sovereign sojourning in a foreign state cannot, however, set up his courts and execute judgment; such functions belong to his territorial courts. Criminals in his retinue must be sent home for trial. While the sovereign's hÔtel or place of residence while abroad is exempt from local jurisdiction, the sovereign is not justified in allowing the hÔtel to become an asylum for others than members of his retinue. On demand he must give up such refugees. In case the sovereign does not observe this principle or commits acts liable to endanger the peace of the foreign state, the authorities may invite him to depart, or if necessary expel him by force.
The sovereign may, in his private capacity, hold property and become party to a suit like any citizen.[180] A sovereign may travel incognito, and is then entitled only to the recognition accorded to the rank which he assumes. He can, however, assert his sovereign capacity and obtain its immunities at any time should he deem it proper.
§ 63. Exemptions of State Officers
(a) Diplomatic agents, or those commissioned to transact the political affairs of the state abroad, are conceded a wide immunity from local jurisdiction. As representing the political will of their state, diplomatic agents have immunities similar to those conceded to the sovereign, though by virtue of the fact that the sending of diplomatic agents has long been a common practice, their immunities are quite well defined. These immunities will be considered more in detail under the subject of International Intercourse, but in general a diplomatic agent is exempt from, (1) criminal jurisdiction, (2) civil jurisdiction, (3) local police and administrative regulations, (4) taxes and duties, (5) jury and witness duty, (6) regulations in regard to religious and social action, (7) all exercise of authority by the local state within his official residence or hÔtel, (8) and from the exercise of similar authority over his household, official and unofficial.
(b) The exemptions granted to consuls vary in different states and under different circumstances. In general they are entitled to such exemptions as will enable them to perform their functions effectively.[181]
(c) Any foreign army within the territorial limits of a given state, by permission of the sovereign of said state, is free from the sovereign's jurisdiction. Chief Justice Marshall, in 1812, gave as his opinion: "In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith.... The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments, which the government of his army may require."[182] Permission, either general or special, must be obtained in order that an army may enter a foreign state in time of peace. The army must cause the least possible inconvenience to the state during its sojourn.
The military attachÉ of an embassy is regarded as a member of the official household of the diplomatic agent.
(d) Navy. As a vessel of war can without inconvenience to a foreign state pass through or remain within its maritime jurisdiction, it is customary to accord to the vessel and crew immunity from local jurisdiction and freedom of passage unless withheld for special reason. "Their immunity from local jurisdiction has come to be more absolute than that of the official residence of ambassadors, and probably for the reason that they have the efficient means of resistance which an ambassador has not."[183]
In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends: (1) to acts beginning and ending on board the vessel;[184] (2) to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; (3) to freedom from customs and all such regulations as are not necessary for the safety of the port (it was held in case of the United States frigate Constitution, in 1879, that she was not liable to salvage charges;[185] the vessel is therefore liable to quarantine, anchorage, etc., rules which imply no derogation of sovereignty); (4) to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warranting a general exercise of the right of asylum on board vessels of war. Asylum can be granted as an act of hospitality to a political refugee, who cannot use the vessel as a base for political intrigue. Asylum to common criminals cannot be granted without offense to the foreign state. Such criminals are usually surrendered on request of the local authorities.
A commander cannot pursue deserters on shore or exercise external authority.
Hall sums up the general principle as follows, "The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction."[186]
In case of abuse of exemptions the state in whose waters the foreign ship of war is, can request it to depart; and if its request is not complied with, can use force, though the customary method is to resort to diplomatic channels.
§ 64. Special Exemptions
(a) In certain Oriental states, the subjects of Western states are by treaty exempt from local jurisdiction. The extent of the exemption in each case depends upon the treaty provisions. The basis of this exemption is found in the "incompatibility of habits of thought on all legal and moral questions,"[187] and the consequent impossibility of obtaining what to the Western states seemed just treatment on the part of Oriental officials. Consular courts were established to meet the needs of foreigners within the jurisdiction of these Eastern states.[188] The consuls in these states were invested with special judicial powers, though not considered by the laws of the United States judicial officers. Each state determines the competence of its consular courts in foreign states.
The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners.
(1) Penal Matters. If a native commits a crime against a foreigner, he is generally tried in the local court.
If a foreigner commits a crime against a native, he is generally tried in the consular court of his state.
If a foreigner commits a crime against a foreigner of another nationality, he is generally tried in the consular court of the injured foreigner.
If both parties to the crime are of the same nationality, the offenders are tried in the court of their own state.
If the crime is a grave one, such as murder, sentence cannot be passed without the sanction of the home government, and in some cases the offender is sent home for trial.
(2) Civil Matters. In cases involving a foreigner and a native, the trial is generally by agents of the two countries.
In cases involving subjects of the same state, their consular court has jurisdiction.
In cases involving foreigners of different nationalities the consular court of the defendant has jurisdiction.
In cases involving large interests, there is an appeal from the consular to the higher courts of the state.
In the East registration of the head of the family at the consulate is necessary to obtain consular protection. Local statutes provide for the execution of treaty stipulations as to consular jurisdiction.[189]
(b) In Egypt mixed courts were instituted in 1875. This system, arranged by convention, has received the assent of nearly all the European states and of the United States.[190]
The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between foreigners of different nationalities. Jurisdiction for other matters remains in the consuls. These courts have been the subject of much discussion and great difference of opinion.
§ 65. Extradition
Extradition is the act by which one state delivers a person accused of crime committed beyond its borders to another state for trial and punishment.
Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from certainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, KlÜber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties.[191] The large number of extradition treaties of the last half of the nineteenth century has made the practice general. Occasionally a state has, in the absence of treaties, voluntarily surrendered fugitives from justice as an act of courtesy. The extradition of Tweed by Spain in 1876 was an act of this kind.[192] Such cases are not common, however,[193] and it is safe to derive the principles from the general practice as seen in treaties.
(a) Persons liable to extradition vary according to treaties. It is the general practice to surrender on demand of the state in which the crime is committed only those who are subjects of the state making the demand. This is the general rule of the Continental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects.[194] The practice is not uniform in the relations of these states to other states, as is shown in their treaties. The South American and Continental European states hold that their own citizens are not liable to extradition.
A large number of the modern writers are in favor of the extradition of subjects in the same manner as aliens, and it is evident that the drift of international practice, as shown by the treaties of the last quarter-century, is toward the refusal to grant protection to a subject who has sought refuge in his native state after committing a crime abroad.
In case the accused whose extradition is demanded is a citizen of a third state, the practice is not uniform, though the best authorities seem to favor the granting of the extradition only after communication with and assent of the third state, on the ground that the state to which the subject has fled is responsible to the third state for its treatment of him. This practice has been followed in many European treaties.
Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. During the last quarter of the nineteenth century few treaties have been made which do not make political criminals specifically non-extraditable. Political crimes accompanied by attacks upon the person of the sovereign or of those holding political office or position are not, however, in the above category, but are usually extraditable.
(b) Even when an accused person is extradited there are limitations as to the jurisdiction of the state to which he goes. The trial must be for the offense or offenses enumerated in the treaty. For example, a treaty between two states enumerates among extraditable crimes murder, and does not enumerate larceny. A fugitive from one of the countries is accused of both murder and larceny. The country surrendering the criminal would not permit the trial of the criminal for any other crime than murder, until the criminal should have had opportunity to return to the state from which he was surrendered. For many years Great Britain claimed that a person surrendered in accordance with an extradition treaty should be tried only for the specific offense for which he was surrendered. The United States desired to include other offenses provided the person had been once surrendered. This position of Great Britain was accepted by the treaty of July 12, 1889.[195]
(c) The conditions necessary for a claim for extradition are: (1) that the crime shall have been committed within the territorial or maritime jurisdiction of the state making the demand, (2) that there be sufficient evidence of guilt to establish a case, and (3) that the application be from the proper authority and in the proper form.[196]
(d) The procedure in cases of extradition is based on definite principles. As it is an act of sovereignty, it must be performed by agents of the sovereign person, who for this purpose, although generally engaged in other functions, are executive officers.[197] The general rule is that the demand for extradition shall be made through the ordinary diplomatic channels. In colonies and under special circumstances an officer of first rank may be the medium of the demand.
The person demanded may be placed under provisional arrest pending the full proceedings of extradition.[198]
Reasonable evidence of the identity of the person and of the facts of the crime must be furnished by the state making the demand.
In case a person is demanded by two states, his native state and a third state in which he has committed a crime, it is customary to grant the request of the state in which he has committed the crime.
When a person is demanded on the ground of separate crimes committed in both states as above, if the crimes are equally grave, the request of his native state is granted. Sometimes, however, when the third state offers to surrender the fugitive to his native state after he has paid the penalty of his crime, the request of the third state is granted.
When the crime committed in one state is more grave than that committed in another, the request of the state maintaining the graver charge is granted.
When states other than the native state request the extradition of a fugitive, the state receiving the demand may take into consideration the gravity of the offense and the probability that a given state will, after securing justice, make it possible for other states to prosecute their claims. In cases of equal gravity priority of demand usually determines the course of action.[199]
If the person demanded is accused of a crime in the state of refuge, the demand for his extradition may be refused pending his trial in the state of refuge.
Many other questions arise which complicate the actual procedure in cases of extradition, but these belong mainly to the realm of private international law.
§ 66. Servitudes
Servitudes in international law constitute a restriction upon the exercise of the territorial jurisdiction of a state in favor of one or more states.
(a) International servitudes are:—
(1) positive, implying that a state is under obligation to permit within its territory another state to exercise certain powers, as by the Treaty of Berlin, 1878, Art. XXIX. "The administration of the maritime and sanitary police, both at Antivari and along the coast of Montenegro, shall be carried out by Austria-Hungary by means of light coastguard vessels;"[200]
(2) negative, implying that a state is to refrain from certain acts, otherwise customary, as "Montenegro shall neither have ships of war nor flag of war."[201]
Among the positive servitudes are: those obligations of a state to allow within its own jurisdiction the exercise of political or administrative authority by another state, as in the execution of judicial or police regulations; those obligations to allow the exercise of military authority, as in military occupation of a portion of the territory or the passage of troops. Among the negative servitudes are: those obligations of a state to refrain from exercising within its own jurisdiction certain political or administrative authority which might be exercised, if the servitude did not exist, as in the exemption of the citizens or corporate persons of certain states from certain acts of jurisdiction or taxation; those obligations to refrain from military acts, such as the limitation of the army or navy to a certain number, or the obligation not to fortify a certain place.
(b) There are also servitudes which may be called general, because binding alike upon every state in favor of all others, such as the innocent use of territorial seas.[202]
CHAPTER XII
PROPERTY
The term "property" has been used in varying senses by writers upon international law. By virtue of the fact that a state has jurisdiction over all its public property there has sometimes been confusion between the two terms, but jurisdiction may, and does, extend to persons and things of which proprietorship cannot be affirmed by the state.
In the sense commonly used in international law the property of a state is held to be all the lands and water within its limits. Within this territory the state has rights to the exclusion of other states, and upon the land area may exercise the right of eminent domain.
The idea of property in this international sense is distinct from that of private ownership, which is merely relative and depends upon the regulations of the state; indeed, private property may be seized for the debts of the state.
A state may hold absolute possession of such objects as are capable of appropriation, as lands, buildings, and other material resources for public purposes. In some cases the state owns the railroads, telegraphs, mines, etc. In time of war such property receives treatment somewhat different from that of private property, and in time of peace it may receive special recognition, e.g. houses of ambassadors.
§ 68. State Property in International Law
Hall outlines this subject as follows: "A state may own property as a private individual within the jurisdiction of another state; it may possess the immediate as well as the ultimate property in movables, land, and buildings within its own territory; and it may hold property in its state capacity in places not belonging to its own territory, whether within or outside the jurisdiction of other states."[203] Property of the first class falls under the local law of the state in which it is. Property of the second class may come within the scope of international law in time of war. Property of the third class may come with the scope of international law both in time of peace and of war.
CHAPTER XIII
DIPLOMACY AND INTERNATIONAL RELATIONS IN TIMES OF PEACE
§ 69. General Development
Diplomacy may be broadly defined as the art and science of international negotiation. The conditions which make possible established relations among states are of comparatively recent origin. In the days when stranger and enemy were not distinguished, and when "strange air made a man unfree," there could be no extended relations among states. In very early times, however, states had some relations with each other, and general principles were observed in carrying on such business as might be necessary. These growing relations have given rise to what is known as the right of legation. Sometimes a right of intercourse between states has been claimed on the ground that the citizens of one state cannot be excluded from the natural advantages of another state, on the ground that all men have an equal right to innocent use of the earth's resources, or on more abstract grounds of moral duty variously interpreted. As the actual practice of states never has recognized such a right to contend for it would hardly be necessary. States put restrictions upon commerce, even to the exclusions of goods and persons. In some cases where the terms of the state enactment may not be prohibitive, the conditions of admission amount to practical prohibition.[204]
The influence of commerce in its many forms, the idea of unity of mankind in its various manifestations, the growth of neighborhood on the part of European states, and the necessity of respect for each other on the part of these states, made interstate relations imperative and convenient. While the right of intercourse might be questioned, the necessity and convenience of interstate relations admitted of no question.
§ 70. Diplomatic Agents
(a) Historical. In very early times special privileges were extended to heralds, ambassadors, or other bearers of the state will. Laws[205] and history record as a fact this practice which had long been observed. The ambassador was often one who in his own state held some priestly office. In the days of the Roman dominance, the office of ambassador was commonly exercised by one holding a religious office, and while the unity represented by the church remained prominent, its officials were often ambassadors. Both from necessity and from the sacred character of the person, the ambassador was usually regarded as inviolable. The person of the ambassador was respected long before there was any recognition of the rights and dignity of states as states. In order that there might be any such intercourse, it was necessary that the agents should not be placed in undue personal peril.[206]
With the preËminence of the Italian city states in the Middle Ages there came the development of diplomacy as an art. The most distinguished men of the times were called to this state service. Machiavelli's name is inseparably linked to one school of diplomacy. Dante, Petrarch, Boccaccio, and others whose names have become famous, were sent on missions.[207]
During the thirteenth century, Venice outlined the policy which her ambassadors should follow, and there the system of foreign representation became well established. This system included the granting of a commission, instructions, letter of credence, attachÉs, etc. Italy may, indeed, be called the home of the diplomatic system.
For many years, in fact till comparatively recent times, ambassadors were looked upon with suspicion, as spies whom monarchs were more willing to give than to receive. Gradually, however, the practice of sending and receiving ambassadors was seen to have much value. During the fifteenth century, which marks the beginning of the modern period in the history of diplomacy, the practice of sending permanent ambassadors seems to have arisen. There may have been isolated cases of sending of permanent ambassadors before this time, but from the fifteenth century the practice became more and more common, though the different countries did not observe any uniform regulations as to personnel, procedure, or in other respects. From this time diplomacy became more of a career, and one going on a mission to a foreign country received careful preparation that he might outwit the representatives of the state to which he was sent. Sir Henry Wotton's oft-quoted definition of an ambassador, "An ambassador is an honest man, sent to lie abroad for the good of his country,"[208] describes the attitude taken in many countries toward the office, when early in the seventeenth century he wrote the definition in Christopher Flecamore's album. Gradually the rules of international negotiation became established, and treatises upon the subject appeared.
The Peace of Westphalia in 1648, which marks the beginning of modern international relations, showed that modern diplomacy had already obtained a recognition, and served to give it a more definite form. This date serves as a boundary to the first division of the modern period in the history of diplomacy. The years from the early part of the fifteenth century to the Peace of Westphalia are the years of beginnings. From this time the system of permanent ministers, which so greatly changed the character of international negotiations, became almost a necessity through the development of the equilibrium of the states of Europe.[209]
During the years 1648 to 1815 the relations of states became more complex, and the business of international negotiation more delicate. Diplomatic practice, always tending to look to precedent, suffered severe strains under the ambitious monarchs occupying the thrones of Europe after the Peace of Westphalia. Principles and precedent were often disregarded to obtain political ends. So great was the friction that at length some of the more commonly disputed questions were settled at the Congress of Vienna, 1815.
(b) The question of relative rank of state agents gave rise, in the days before the Congress of Vienna, to many difficulties. The protocol of that Congress of March 9, 1815, together with the eighth article adopted at the Congress of Aix-la-Chapelle, Nov. 21, 1818, give the basis of present practice as follows:—
"In order to prevent in future the inconveniences which have frequently occurred, and which may still occur, from the claims of Precedence among the different Diplomatic characters, the Plenipotentiaries of the Powers who signed the Treaty of Paris have agreed on the following Articles, and think it their duty to invite those of other Crowned Heads to adopt the same regulations:—
Division of Diplomatic Characters
Art. I. Diplomatic characters are divided into Three classes: That of Ambassadors, Legates, or Nuncios.
That of Envoys, Ministers, or other persons accredited to Sovereigns.
That of ChargÉs d'Affaires accredited to Ministers for foreign affairs.
Representative Character
Art. II. Ambassadors, Legates, or Nuncios only shall have the Representative character.
Special Missions
Art. III. Diplomatic characters charged with any special Mission shall not, on that account, assume any superiority of Rank.
Diplomatic Precedence
Art. IV. Diplomatic characters shall rank in their respective classes according to the date of the official notification of their arrival.
Representatives of the Pope
The present Regulation shall not occasion any change respecting the Representative of the Pope.
Form for Reception of Diplomatic Agents
Art. V. There shall be a regular form adopted by each State for the reception of Diplomatic Characters of every Class.
Diplomatic Agents of Courts Allied by Family or Other Ties
Art. VI. Ties of consanguinity or family alliance between Courts confer no Rank on their Diplomatic Agents. The same rule also applies to political alliances.
Alteration of Signatures in Acts or Treaties
Art. VII. In Acts or Treaties between several Powers that admit alternity, the order which is to be observed in the signatures of Ministers shall be decided by ballot.[210]
Art. VIII. It is agreed between the Five Courts that Ministers Resident accredited to them shall form, with respect to their Precedence, an intermediate class between Ministers of the Second Class and ChargÉs d'Affaires."[211]
To the articles, except the last, Austria, Spain, France, Great Britain, Portugal, Prussia, Russia, and Sweden were parties. Spain, Portugal, and Sweden were not parties to the eighth article. Theoretically these rules are binding only upon those states parties to the treaties, but practically they are accepted by all civilized states.
The four grades are as follows:—
1. Ambassadors, legates, and nuncios.
2. Envoys, ministers, or other persons accredited to sovereigns.
3. Ministers resident.
4. ChargÉs d'affaires.
The first three grades are accredited to the sovereign. The fourth grade, chargÉs d'affaires, is accredited to the minister of foreign affairs.
The rank of the agent does not necessarily have any relation to the importance of the business which may be intrusted to him. The titles given to the different diplomatic agents, at the present time, are in a general way descriptive, as follows:—
(1) Diplomatic agents of the first class are held to represent the person of the sovereign. Ambassador ordinary usually designates one holding a permanent mission. Ambassador extraordinary designates one on a special mission, or having power to act in exceptional circumstances. This, however, is most often a title of somewhat superior honor giving no other advantage. Papal legates rank, and for practical purposes, are, ambassadors extraordinary, though representing particularly ecclesiastical affairs and the Pope as head of the Church. Legates are chosen from the cardinals and sent to countries recognizing the papal supremacy. Nuncios of the Pope rank as ambassadors ordinary on a permanent mission, and are usually intrusted with power to transact general affairs.[212]
(2) Envoys extraordinary, envoys ordinary, and ministers plenipotentiary have in general the same functions and rank. With these rank the papal internuncio. The general idea is that the agents of the second class do not stand for the person of the sovereign, but for the state.
(3) Ministers resident are regarded as upon a less important mission than the agents of the first or second class. They are frequently sent by the greater powers to the lesser powers.
(4) ChargÉs d'affaires ceremonially rank below the ministers resident. They are accredited to the minister of foreign affairs, while members of the first three classes are accredited to the sovereign. A chargÉ d'affaires may perform the functions of the higher grades of agents and has the same general privileges. When a consul is charged with a diplomatic mission he ranks with the chargÉs d'affaires. Commissioners on various missions are sometimes accorded the same rank; but, as they do not bear the title, commissioners cannot claim the rank of the chargÉ d'affaires, though in their functions there may be no difference.
There is no rule as to the grade of diplomatic agent which one state shall send to another, though it was formerly held that only states entitled to royal honors could send ambassadors. It is now customary for states to agree among themselves as to the relative rank of their diplomatic agent. Thus the United States by a recent act provided that "whenever the President shall be advised that any foreign government is represented or is about to be represented in the United States by an ambassador, envoy extraordinary, minister plenipotentiary, minister resident, or special, envoy or chargÉ d'affaires, he is authorized in his discretion to direct that the representative of United States to such government shall bear the same designation. This provision shall in no wise affect the duties, powers, or salary of such representative."[213]
The rank of a diplomatic agent is a mark of dignity and honor particularly of consequence in matters of etiquette and ceremonial. Reciprocity between states is the general rule in the grade of agents. The old theory that agents of the first rank had access to the ear of the sovereign is no longer held, and all grades alike represent both the sovereign and the state from which they come.
§ 71. Suite
The personnel of a mission may be distinguished as the official and the non-official.
(a) The official suite consists of the functionaries, and varies in number according to the dignity and importance of the mission. Formerly the number was scrutinized with great care, owing to the fear that a numerous suite might endanger the safety of the receiving state. The official suite may include, (1) the counsel to the mission, (2) the secretaries, (3) the attachÉs, military, naval, and others, (4) the interpreters and dragomans, (5) the clerks and accountants, (6) the couriers, (7) the chaplain, (8) the doctor, and in some instances other officers necessary for the performance of the official functions.
(b) The non-official suite includes the family of the diplomatic agent and those in his household employ. This may include, beside his immediate family, (1) the private chaplain, (2) the private doctor, (3) the private secretaries, (4) the domestic servants of various grades.
§ 72. Who may send Diplomatic Agents
It is the general rule that sovereign states only may send ambassadors or other diplomatic agents. Sometimes diplomatic relations are maintained between states when both are not fully sovereign, as in the relations between Bavaria, a member of the German Empire, and France. In general, where the sovereignty of a state is not complete, its right of legation is fixed by the treaty which impairs its sovereignty. A state which has not full sovereign powers may have a partial right of legation, either active or passive, or a right to send diplomatic agents with limited functions.
The sending of a diplomatic agent is essentially an act of the sovereign person, whether he be a monarch, president, council, or have other title. The domestic law determines who this person shall be. International law makes no distinction.
In each state a department, usually called the department of foreign affairs, has the business of international intercourse in charge. The organization of this department and the general methods are matters of domestic law. All foreign states need to know is to what extent this department is competent to carry on negotiations.
§ 73. Who may be Sent
Before actually sending a diplomatic agent, a state usually obtains assurance from the receiving state that the proposed agent will be an acceptable person. If the proposed agent is a persona non grata, it is held that the foreign state is not obliged to give its reasons for refusing to receive him. To refuse a given person does not imply any lack of courtesy to the sending state on the part of the refusing state. A state may refuse to receive one of its own citizens as the minister of a foreign state. Sometimes states have refused to receive those who have in the sending state taken positions manifesting hostile disposition toward the receiving state.
In 1885 the Italian government refused to receive Mr. Keily as United States representative on the ground that he had denounced the overthrow of the temporal power of the Pope. It was considered probable that one who had taken so decided an attitude toward an action of the government to which he was sent would hardly be acceptable. Mr. Keily had just before been refused by Austria-Hungary on the ground that his wife was a Jewess and his marriage only a civil one. President Cleveland showed his attitude toward this action in his first annual message, 1885. "The Austro-Hungarian government finally decided not to receive Mr. Keily as the envoy of the United States, and that gentleman has since resigned his commission, leaving the post vacant. I have made no new nomination, and the interests of this government at Vienna are now in the care of the secretary of legation, acting as chargÉ d'affaires ad interim."[214]
§ 74. Credentials, Instructions, Passport
Before starting upon his mission, a diplomatic representative receives, if of one of the first three classes, from the head of the state, if of the fourth class (chargÉ d'affaires) from the minister of foreign affairs, a letter of credence. In the United States the President signs the letters of credence of diplomatic agents above the rank of chargÉ d'affaires. In these instances the letter is addressed to the head of the foreign state. In the case of chargÉ d'affaires the letter is addressed to the minister of foreign affairs and signed by the Secretary of State. A letter of credence gives the name, the character and general object of the mission, and requests for the agent full faith and credence as the state's representative. In case of representatives to Turkey, besides the letter of credence to the Sultan, letters are also taken to the grand vizier and to the minister of foreign affairs. Representatives of the Pope carry in place of letters of credence papal bulls. Sometimes a diplomatic agent receives also letters of recommendation to persons of importance in the foreign country. These letters have a semi-official character in many cases. While a letter of credence may give power to open treaty negotiations, it is usual to give a special letter conferring full powers or general full powers to close and sign a treaty, or to act in behalf of the state in some manner not covered by his instructions. These letters are commonly letters patent.
The diplomatic agent also customarily receives instructions which may be either for his own guidance or to be communicated to the foreign state. If to be communicated to the foreign state, the instructions make more fully known his special functions. In all cases the agent is bound by his instructions, and in case of doubt as to method of action it is easy, in these days of rapid communication, to entertain a matter ad referendum.
The diplomatic agent also receives for himself, family, and suite a special passport. The special passport "differs from the ordinary passport in that it usually describes the official rank or occupation of the holder, and often also the purpose of his traveling abroad, while generally omitting the description of his person."[215] This may serve not only the purpose of the ordinary passport, but may also give an official introduction to the bearer.
The papers furnished to diplomatic representatives of the United States include:—
1. A sealed letter of credence to the head of the state or minister of foreign affairs according to rank of the representative.
2. "An open office copy of the letter of credence."
3. The special passport above mentioned.
4. "A copy of the Register of the Department of State."
5. A letter of credit upon the bankers of the United States.
6. A copy of Instructions to the Diplomatic Officers of the United States.
7. A copy of the Consular Regulations of the United States.
(FORM OF)
LETTER OF CREDENCE
A.............. B..............,
President of the United States of America.
To ...............................
................................
................................
Great and Good Friend:
I have made choice of ...............................
one of our distinguished citizens, to reside near the Government of
Your ............ in the quality of ...............................
He is well informed of the relative interests of the two countries and
of our sincere desire to cultivate to the fullest extent the friendship
which has so long subsisted between the two Governments. My
knowledge of his high character and ability gives me entire confidence
that he will constantly endeavor to advance the interest and prosperity
of both Governments, and so render himself acceptable to Your ......
............
I therefore request Your ............ to receive him favorably and
to give full credence to what he shall say on the part of the United
States, and to the assurances which I have charged him to convey to
you of the best wishes of this Government for the prosperity of ......
............
May God have Your ............ in His wise keeping.
Written at Washington this ............ day of ............ in the
year ................
Your good friend,
A ............ B ............
By the President,
............................
Secretary of State.
§ 75. Ceremonial
(a) General. In certain countries diplomatic ceremonial has been very elaborate and complex. The tendency during the nineteenth century has been toward simplification. Each state has the power to determine its own ceremonial for the most part. Of course no state can disregard established rules as to rank, precedence, and similarly generally recognized practices. At the time when these practices originated it was imperative that there should be some fixed mode of procedure which a state could follow without giving offense in its treatment of a foreign representative. Much of the ceremonial became fixed during the latter part of the seventeenth and during the eighteenth century. In the days of absolutism the monarch naturally demanded such recognition of his representative in a foreign country as befitted his own estimate of the dignity of the monarchical office. It may not be unfortunate that the monarch placed a high estimate upon the sovereign office and devised a ceremonial commensurate with this estimate, for what was once done out of respect for and in response to the demand of a personal sovereign, is now done out of respect for the dignity of the state itself. Thus in the days of more democratic sovereignties international representatives are clothed with a dignity which both elevates the attitude of participants in international negotiations and gives greater weight to their conclusions. The ceremonial also fixes a definite course of procedure which any state may follow without giving offense to another, whether it be weak or powerful.
(b) While the minor details of the ceremonial of reception of a diplomatic agent are not invariable, certain customs are well established. A diplomat officially notifies the receiving state of his arrival by sending, (1) if he be of the first rank, a secretary of the embassy to the minister of foreign affairs, with a copy of his letter of credence and a request for a day and hour when he may have an audience with the head of the state in order to present his credentials, (2) if of the second rank, while sometimes the above procedure is allowed, he usually makes the announcement and request in writing, (3) if of the third rank he always observes the last-mentioned procedure, (4) if of the fourth rank, chargÉ d'affaires, he notifies the minister of foreign affairs of his arrival and requests an audience.
The audience may be for any grade more or less formal, public or private. Usually diplomats of the first rank are received in public audience. At the audience the diplomat presents his letter of credence, and usually makes a brief address, of which he has earlier furnished a copy to the minister of foreign affairs in order that a suitable reply may be prepared. Diplomats of the second rank customarily receive a similar solemn audience. This may or may not be granted to ministers of the third rank. Official visits, varying somewhat in ceremonial in different states, follow.
(c) From the time when permanent missions began to be common, conflict between the representatives of different states made necessary fixed rules of precedence. As Wicquefort said in the latter part of the seventeenth century, "One of the things that most hinders Embassadors from paying one another civilities, is the Contest they have concerning Honours and Rank; not only on Account of the Competition of their Masters, but sometimes also by Reason of some Pretensions they have amongst themselves."[216] Wicquefort's citations of cases give ample evidence of the confusion prevailing in his day. Bynkershoek, in "De Foro Legatorum," Ch. I. and XII., shows that the confusion was scarcely less in 1721, though the rank by title was coming to be more fully recognized. Vattel in 1758 shows that there had arisen a more definite ceremonial[217] and a fairly clear gradation, yet as this had never been agreed to by any considerable number of states, and was not in accordance with any generally recognized principle, there were contests still. By the Congresses of Vienna (1815) and Aix-la-Chapelle (1818) many of the disputed points in regard to precedence were adjusted. Certain general propositions are now admitted, such as, that no diplomat can pretend to special honors or immunities above other diplomats of the same rank.[218] The rule of the Congress of Vienna is followed, by which diplomats of the same class rank according to the precedence in the date of the official notification of their arrival.
Places of honor are now quite definitely fixed. On ceremonial occasions, where the representatives are seated at a table, as in an international congress, it may be somewhat varied as fronting the main window, opposite the main entrance to the room, in the place receiving the light over the left shoulder. When the place is determined by the relation to the head of the table or the presiding officer, the first honor, except in Turkey, is at his right, the second at his left, the third in the second place on the right, the fourth in the second place on the left, and so on. In processions the place of honor is sometimes first, sometimes last. For relatively short processions, certain more definite rules are usually observed. When only two participate, the first place is the place of honor; when three participate, the middle place, the place in advance being the second honor and the place in the rear the third; when four participate, the second place is the place of honor, the place in advance the second, the third and fourth being in honor in order; when five participate, the middle is the place of honor, the second place being the second in honor, the first the fourth in honor, the fourth the third in honor, and the fifth the fifth in honor.[219]
To avoid friction as to place of honor in signing treaties, etc., the principle of the alternat is usually followed, by which the copy going to a given nation has the name of its own representative first in order.[220] Sometimes the order is determined by lot, and sometimes is alphabetical in the order of the names of the states parties to the treaty.
(d) Certain prerogatives are held to appertain to the office of ambassador and to diplomats of the first rank. Among these are: (1) the title of Excellency, (2) the right to remain covered in the presence of the sovereign, unless the sovereign himself is uncovered, (3) the privilege of a dais in his own home, (4) the right to use a "coach and six" with outriders, (5) military and naval honors, (6) the use of the coat of arms over the door, (7) invitations to all court ceremonies. This last is usually extended to all diplomats. Those of lower rank than the ambassador sometimes claim modified forms of the above prerogatives.
Many of the interesting phases of diplomatic ceremonial are survivals of forms which in earlier days were most jealously and strenuously guarded. The closer relations of states and better understanding of mutual relations have made unnecessary the observance of many forms once vital to harmony.
Many courtesies are regarded as due diplomatic representatives by virtue of their rank. These are not uniform at the various courts, but generally include, notification of accession to the throne, notifications of births and deaths in the royal family, congratulations and condolences as public events warrant, and many others.
Diplomats are also entitled to receive salutes, which are usually arranged for in advance. The ambassador receives a salute of fifteen guns; the minister, eleven; and the chargÉ d'affaires, nine.
§ 76. Functions
The functions of a diplomatic representative in a broad sense are, to direct the internal business of the legation, to conduct the negotiations with the state to which he is accredited, to protect citizens of his state[221] and to issue passports under proper restrictions,[222] and to make reports to his home government.
(a) The internal business of the mission may in general be classified as concerned with (1) the custody of archives, (2) diplomatic correspondence[223] involving at times the use of cipher, (3) record of the work of the legation, (4) the exercise of a measure of jurisdiction over the household. In grave cases the diplomat must send the offender home for trial, or under certain circumstances, if a native of the state, hand the offender over to the local authorities. Otherwise his jurisdiction is mainly of a minor disciplinary sort. The assumption of such authority as claimed by Sully, in 1603, when he tried and condemned to death one of the French suite, is now absolutely denied. Indeed, James I. pardoned the offender whom Sully had delivered to him for execution. In 1896 Great Britain denied the right of the Chinese ambassador to detain a Chinaman who was held in the legation under charge of political conspiracy, and compelled his release.
(b) The conduct of negotiations with the state to which he is accredited may involve, (1) verbal communications with the sovereign or ministers. The purport of such communications may be preserved in writing known as briefs of the conversation, or aids to the memory. In cases of somewhat formal conversations the written reports may be called notes or memoranda. To the procÈs-verbaux, or reports of international conferences for the discussion of treaty stipulations, the name protocol is usually given. (2) Formal communications with the sovereign or ministers, (3) the maintenance of diplomatic privileges and immunities, (4) such action as may be necessary to protect his state's interests so far as possible, and particularly its treaty rights.
(c) The diplomat's relations to the citizens of his own country are largely determined by the domestic law of his own state, and usually involve, (1) a measure of protection to his fellow-citizens; (2) issue and visÉ of passports, and in some countries the issue of certificates of nationality and travel certificates; (3) in cases of extradition of citizens of his own state from the foreign state, the presentation of the requisition for extradition; and in cases of extradition of citizens of the state to which he is accredited from his own state, usually the certification that the papers submitted as evidence are "properly and legally authenticated."[224] In some states diplomats are authorized to perform notarial acts.[225] (4) The exercise of a reasonable courtesy in the treatment of his fellow-citizens.
All these functions vary with local law. The practice is not uniform, as is evidenced in the inconsistencies in regard to regulations as to the marriage by the diplomatic agent.[226]
(d) In making reports the diplomat is supposed to keep his own government informed upon, (1) the views and policy of the state to which he is accredited, and (2) such facts as to events, commerce, discoveries, etc., as may seem desirable. These reports may be regular at specified periods, or special.
§ 77. Termination of Mission
The mission of a diplomatic representative may terminate in various ways.
(a) A mission may terminate through the death of the diplomat. In such a case there may properly be a funeral befitting the rank of the diplomat. The property and papers of the mission are inventoried and sealed by the secretary, or in case of absence of secretaries and other proper persons, by the diplomats of one or more friendly powers. The inheritance and private property of the diplomat, of course, follow the law of his country, and the property of the deceased is exempt from local jurisdiction.
(b) The mission may terminate in ordinary course of events, by (1) expiration of the period for which the letter of credence or full power is granted, (2) fulfillment of the purpose of the mission if on a special mission, (3) change of grade of diplomat, (4) the death or dethronement of the sovereign to whom the diplomatic agent is accredited, except in cases of republican forms of government. In the above case new letters of credence are usually regarded as essential to the continuance of the mission. The weight of opinion seems to indicate that the mission of a diplomat is terminated by a change in the government of his home country through revolution, and that new letters of credence are necessary for the continuance of his mission.
(c) A mission may be interrupted or broken off through strained relations between the two states or between the diplomatic agent and the receiving state. (1) A declaration of war immediately terminates diplomatic relations. (2) Diplomatic relations may be broken off by the personal departure of the agent, which departure is for a stated cause, such as the existence of conditions making the fulfillment of his mission impossible, or the violation of the principles of international law. (3) Diplomatic relations may be temporarily suspended, owing to friction between the states, as in the case of the suspension of diplomatic relations between Great Britain and Venezuela from 1887 to 1897, owing to dispute upon questions of boundary. In 1891 Italy recalled her minister from the United States on account of alleged tardiness of the United States authorities in making reparation for the lynching of Italians in New Orleans on March 14, 1891.[227] (4) A diplomatic agent is sometimes dismissed either on grounds personal to the diplomat, or on grounds involving the relations of the two states. When, in 1888, the demand for the recall of Lord Sackville, the British minister at Washington, was not promptly complied with, Lord Sackville was dismissed and his passport sent to him. Lord Sackville had, in response to a letter purporting to be from an ex-British subject, sent a reply which related to the impending presidential election. His recall was demanded by telegraph Oct. 27. The British government declined to grant it without time for investigation, and his passport was sent him on Oct. 30. In 1871, "The conduct of Mr. Catacazy, the Russian minister at Washington, having been for some time past such as materially to impair his usefulness to his own Government, and to render intercourse with him for either business or social purposes highly disagreeable," it was the expressed opinion of the President that "the interests of both countries would be promoted ... if the head of the Russian legation here was to be changed." The President, however, agreed to tolerate the minister till after the contemplated visit of the grand duke. The communication also stated, "That minister will then be dismissed if not recalled."[228]
(d) The ceremonial of departure is similar to that of reception. (1) The diplomat seeks an interview according to the method outlined in the ceremonial of reception, in order to present his letter of recall. (2) In case of remoteness from the seat of government the agent may, if necessary, take leave of the sovereign by letter, forwarding to the sovereign his letter of recall. (3) It very often happens that a diplomatic agent presents his successor at the time of his own departure. (4) In case of change of title the diplomat follows the ceremonial of departure in one capacity with that of arrival in his new capacity. (5) It is understood that the agent, after the formal close of his mission, will depart with convenient speed, and until the expiration of such period he enjoys diplomatic immunities.
§ 78. Immunities and Privileges
Few subjects involved in international relations have been more extensively discussed than the privileges and immunities of diplomatic agents. Many of the earliest treatises on international affairs were devoted to such questions. In order that any business between states might be carried on, some principles upon which the diplomatic agent could base his action were necessary. The treatment of the agent could not be left to chance or to the feeling of the authorities of the receiving state. Gradually fixed usages were recognized. These immunities and privileges may be considered under two divisions: personal inviolability, and exemption from local jurisdiction, otherwise known as exterritoriality.
(a) Inviolability. The person of the agent was by ancient law inviolable. According to the dictum of the Roman Law, sancti habentur legati. In accord with this principle the physical and moral person is inviolable. Any offense toward the person of the ambassador is in effect an offense to the state which he represents, and to the law of nations. The receiving state is bound to extend to the diplomatic agent such protection as will preserve his inviolability. This may make necessary the use of force to preserve to the diplomatic agent his privileges. The idea of inviolability, as Calvo says, is absolute and unlimited, and based, not on simple convenience, but upon necessity. Without it diplomatic agents could not perform their functions, for they would be dependent upon the sovereign to whom they might be accredited.[229] In many states laws have been enacted during the last half of the nineteenth century fixing severe penalties for acts which affect the diplomatic agent unfavorably in the performance of his functions, or reflect upon his dignity.[230]
The privilege of inviolability extends, (1) alike to agents of all classes, (2) to the suite, official and non-official, (3) to such things as are convenient for the performance of his functions, (4) during the entire time of his official sojourn, i.e. from the time of the making known of his official character to the expiration of a reasonable time for departure after the completion of his mission. This also holds even when the mission is terminated by the outbreak of war between the state from which the agent comes and the state to which he is accredited. (5) By courtesy the diplomatic agent is usually accorded similar privileges when passing through a third state in going to or returning from his post.
A diplomatic agent may place himself under the law, says Despagnet, so far as attacks upon him are concerned: (1) when he voluntarily exposes himself to danger, in a riot, duel, civil war; (2) when in his private capacity he does that which is liable to criticism, e.g. as a writer or artist, provided the criticism should not degenerate into an attack upon his public character; (3) when the attacks upon him are in legitimate personal self-defense; (4) when, by his actions, he provokes on the part of the local government precautionary measures against himself, e.g. if he should plot against the surety of the state to which he is accredited.[231] Only in the case of extreme necessity, however, should any force be used. It is better to ask for the recall of the agent. In case of refusal or in case of urgent necessity the agent may be expelled.
(b) Exemption from local jurisdiction of the state to which a diplomatic agent is sent, or exterritoriality in a limited sense, flows naturally from the admitted right of inviolability. The term "exterritoriality" is a convenient one for describing the condition of immunity which diplomatic agents enjoy in a foreign state, but it should be observed that the custom of conceding these immunities has given rise to the "legal fiction of exterritoriality," rather than that these immunities are based on a right of exterritoriality. The practice of granting immunities was common long before the idea of exterritoriality arose.[232] The exemptions give to diplomatic agents large privileges.
(1) The diplomatic agent is exempt from the criminal jurisdiction of the state to which he is accredited. In case of violation of law the receiving state has to decide whether the offense is serious enough to warrant a demand for the recall of the agent, or whether it should be passed without notice. In extreme cases a state might order the agent to leave the country, or in case of immediate danger might place the agent under reasonable restraint. Hall considers these "as acts done in pursuance of a right of exercising jurisdiction upon sufficient emergency, which has not been abandoned in conceding immunities to diplomatic agents."[233]
(2) The diplomatic agent is exempt from civil jurisdiction of the state to which he is sent, and cannot be sued, arrested, or punished by the law of that state.[234] This rule is sometimes held to apply only to such proceedings as would affect the diplomat in his official character; but unless the diplomat voluntarily assume another character, he cannot be so proceeded against. If he become a partner in a firm, engage in business, buy stocks, or assume financial responsibilities, it is held in theory by some authorities that the diplomatic agent may be proceeded against in that capacity. The diplomatic agent of the United States is distinctly instructed that "real or personal property, aside from that which pertains to him as a minister, ... is subject to the local laws."[235] The practice is, however, to extend to the diplomat in his personal capacity the fullest possible immunity, and in case of need to resort to his home courts, or to diplomatic methods by appeal to the home government, for the adjustment of any difficulties that may involve its representative in foreign court proceedings. The real property of the diplomatic agent is, of course, liable to local police and sanitary regulations. In cases where a diplomatic agent consents to submit himself to foreign jurisdiction, the procedure and the judgment, if against him, cannot involve him in such manner as to seriously interfere with the performance of his functions. He cannot be compelled to appear as witness in a case of which he has knowledge; however, it is customary in the interests of justice for the diplomatic agent to make a deposition before the secretary of the legation or some proper officer. By the Constitution of the United States, in criminal prosecutions the accused has a right to have the evidence taken orally in his presence. The refusal to give oral testimony of M. Dubois, the Dutch minister to the United States in 1856, resulted in his recall.[236] The Venezuelan minister, however, testified in open court as a courtesy to the United States government in the trial of the assassin of President Garfield.[237] The United States at the present time maintains that "a diplomatic representative cannot be compelled to testify, in the country of his sojourn, before any tribunal whatsoever." This may be considered the generally accepted principle, though the interests of general justice and international courtesy frequently lead to voluntary waiving of the rule with the consent of the accrediting state.
(3) The official and non-official family enjoy the immunities of their chief as necessary for the convenient performance of his mission. Questions in regard to the immunities of the non-official suite have sometimes arisen. To avoid this it is customary for the diplomat to furnish the receiving state with a list of his family. Great Britain does not admit the full immunity of domestic servants. When Mr. Gallatin was United States minister to Great Britain, his coachman, who had committed an assault beyond the hÔtel of the minister, was held liable to the local jurisdiction. As a diplomatic agent can voluntarily turn over an offender to the local authorities, and as he would naturally desire the observance of local law, there would be little danger of friction with local authorities anywhere, provided a just cause could be shown.
Couriers and bearers of dispatches are entitled to immunities so far as is necessary for the free performance of the specific function.
(4) The house and all grounds and buildings within the limits of the diplomatic residence are regarded as exempt from local jurisdiction. Great Britain claimed the right of entry to arrest Mr. Gallatin's coachman above mentioned, though admitting that such entrance should be made at a time to suit the convenience of the minister if he did not care to hand him over directly. This immunity extends also to carriages and other necessary appurtenances of the mission.
Children born to the official family in the house of the diplomatic agent are considered as born in the state by which the agent is accredited.
(5) The right of asylum in the house of the ambassador is now generally denied. In 1726 the celebrated case of the Duke of Ripperda, charged with treason, gave rise to the decision by the Council of Castile that the duke could be taken from the English legation by force if necessary, because the legation, which had been established to promote good relations between the states, would otherwise be used for overthrowing the state in which it had been established.[238] It may be regarded as a rule that, in Europe and in the United States, the house of a diplomatic agent affords only temporary protection for a criminal, whether political or otherwise, and that on demand of the proper authority the criminal must be surrendered. Refusal is a just ground for demand for recall of the diplomatic agent. The United States instructs its agents that "The privilege of immunity from local jurisdiction does not embrace the right of asylum for persons outside of a representative's diplomatic or personal household."[239] This right is, however, recognized in practice, both by the United States and European nations, so far as pertains to the houses of the diplomats in South American states. The United States, in 1870, tried without avail to induce the European nations to agree to the discontinuance of the practice. In 1891, in Chile, Minister Egan, of the United States, afforded refuge in the legation to a large number of the political followers of Balmaceda. Chile demanded his recall, but the United States maintained that there must be sufficient grounds for such action. In Eastern countries it has been the practice to afford asylum in legations in times of political disturbance and to political offenders. In 1895 the British ambassador at Constantinople gave asylum to the deposed grand vizier at Constantinople. It can be said, however, that the tendency is to limit the granting of asylum to the fullest possible extent,[240] and finally to abolish the practice altogether, as has been the case with the ancient extension of this privilege to the neighborhood of the legation under the name of jus quarteriorum.[241]
(6) In general, the diplomatic agent is exempt from personal taxes and from taxes upon his personal goods. The property owned by and devoted to the use of the mission is usually exempt from taxation. In this respect the principle of reciprocity is followed among some states. The taxes for betterments, such as paving, sewerage, etc., are regarded as proper charges upon the mission. A state has a right to make such regulations as it deems necessary to prevent the abuse of this immunity from taxation. It is also customary for a third state to grant to a diplomat passing through its territory immunity from duties. Diplomatic agents are also exempt from income, military, window, and similar taxes.
(7) It is hardly necessary now to mention the fact that the diplomatic agent is entitled to freedom of religious worship within the mission, provided there be no attempt by bell, symbol, or otherwise to attract the attention of the passer-by to the observance. This privilege was formerly of importance, but now is never questioned.
§ 79. Diplomatic Practice of the United States
Some of the minor points of procedure and functions may be seen by the study of the customs and rules of any large state, as in the United States.
(a) Official communications involving international relations and general international negotiations are within the exclusive province of the Department of State, at the head of which stands the Secretary of State. In other states this department is commonly called the Department of Foreign Affairs, and its chief is the Minister or Secretary for Foreign Affairs, and was so designated in the United States from 1781 to 1789. The Department of State of the United States, however, performs many functions not strictly within a Department of Foreign Affairs, as an enumeration of the Bureaus will show.
(1) Bureau of Appointments.
(2) Diplomatic Bureau.
(3) Consular Bureau.
(4) Bureau of Indexes and Archives.
(5) Bureau of Accounts.
(6) Bureau of Rolls and Library, which, besides other duties, has charge of the publication of the laws, treaties, proclamations, and executive orders.
(7) Bureau of Foreign Commerce (before July 1, 1897, called Bureau of Statistics).
(b) The Constitution provides that, "In all cases affecting ambassadors, other public ministers, and consuls," the Supreme Court has original jurisdiction.[242]
(c) A diplomatic agent cannot, without consent of Congress, "accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state."[243] This provision does not, however, prevent the rendering of a friendly service to a foreign power, and it may be proper for him, having first obtained permission from the Department of State, to accede to the request to discharge temporarily the duties of a diplomatic agent of any other state.[244]
(d) In case of revolution a diplomatic agent may extend protection to the subjects of other friendly powers left for the time without a representative.[245] In neither this nor in the preceding case does the United States become responsible for the acts of its diplomatic representative in so far as he is acting as agent of the other state or states.
(e) "It is forbidden to diplomatic officers to participate in any manner in the political concerns of the country of their residence; and they are directed especially to refrain from public expressions of opinion upon local political or other questions arising within their jurisdiction. It is deemed advisable to extend similar prohibition against public addresses, unless upon exceptional festal occasions, in the country of official residence. Even upon such occasions any reference to political issues, pending in the United States or elsewhere, should be carefully avoided."[246] A diplomatic agent is forbidden to recommend any person for office under the government to which he is accredited.[247] The diplomatic agent should not become the agent to prosecute private claims of citizens.[248] The diplomatic agent should not retain any copy of the archives, nor allow the publication of any official document, without authorization of the Department of State. The Department in general disapproves of residence of the agent elsewhere than at the capital of the receiving state.
(f) Joint action with the diplomatic agents of other powers at a foreign court is deprecated, although conferences resulting in a common understanding in cases of emergency are considered desirable.[249]
(g) It is permitted that the diplomatic agent of the United States wear the uniform and bear the title of the rank attained in the volunteer service of the Army of the United States during the rebellion.[250] It is prohibited by a later statute to wear "any uniform or official costume not previously authorized by Congress."[251] This has been interpreted as applying to dress denoting rank, but not to the prescribed court dress of certain capitals;[252] and "diplomatic officers are permitted to wear upon occasions of ceremony the dress which local usage prescribes as appropriate to the hour and place."[253]
(h) The United States has never been liberal in compensating diplomatic agents for their services. In 1784 the salary of the highest grade was fixed at nine thousand dollars, and it had only been doubled at the end of the nineteenth century. Other states of equal dignity provide far more liberally for their representatives.
The whole matter of diplomatic agents has been the subject of numerous statutes.[254]
§ 80. Consuls
(a) Historically the office of consul preceded that of ambassador. The merchants of different states had dealings with each other long before the states, as such, entered into negotiations. The Egyptians, apparently as early as the fourteenth century B.C., intrusted the trial of certain maritime cases to a designated priest. The Mediterranean merchants appealed to the judicium mercatorium et maritimum in the sixth century B.C. The Greek proxenos performed some consular functions. Rome later had similar public servants. The consular system, however, did not develop during the long period of decay of the Roman Empire. In the days of the Crusades, the merchants settled in the coast cities of the Mediterranean. Quarters of the cities practically came under the jurisdiction of the foreign occupants. The consuls, probably at first chosen by the merchants, exercised this jurisdiction, under which the law of the state of the origin of the merchants was regarded as binding. Their functions were somewhat similar to those exercised in some Eastern states at the present time. As soon as conditions became more settled, the states gradually assumed control of these consular offices. The laws of Oleron, Amalfi, Wisby, the Consolato del Mare, and the early Lex Rhodia show that many of the consular functions were recognized in the Middle Ages, and the institution of consuls seems to have been quite well established by the year 1200. The Hanseatic League in the fourteenth century had magistrates in many cities entitled aldermen, who were performing functions similar to those of the consuls of the Mediterranean.[255] England began to send consuls in the fifteenth century; the system rapidly spread, and the powers and functions of consuls were wide. From this time, with the growth of the practice of sending resident ambassadors, the extent of the consular duties was gradually lessened. The diplomatic functions formerly in the charge of the consuls were intrusted to the ambassadors, and other functions of the consuls were reduced by making them the representatives of the business interests of the subjects of the state in whose service they were, rather than of the interests of the state as such.[256] From the middle of the seventeenth century, when the responsibility of states to each other became more fully recognized, and government became more settled, the exterritorial jurisdiction of consuls was no longer necessary. The growth of commerce among the nations has increased the duties of the consul. The improved means of communication, telegraphic and other, has relieved both consuls and ambassadors of the responsibility of deciding, without advice from the home government, many questions of serious nature.
(b) The rank of consuls is a matter of domestic law, and each state may determine for its own officers the grade and honors attaching thereto in the way of salutes, precedence among its domestic officials, etc. There is no international agreement in regard to consuls similar to that of 1815-1818 in regard to diplomatic agents.
The United States differentiates the consular service more fully than most states, having the following: consuls-general, vice-consuls-general, deputy consuls-general, consuls, vice-consuls, deputy consuls, commercial agents, vice-commercial agents, consular agents, consular clerks, interpreters, marshals, and clerks.[257] The term "consular officer," however, includes only consuls-general, consuls, commercial agents, deputy consuls, vice-consuls, vice-commercial agents, and consular agents.[258] The full officers are consuls-general, consuls, and commercial agents. The vice consular officers are "substitute consular officers" and the deputy consuls-general, deputy consuls, and consular agents are "subordinate consular officers."[259]
Consuls-general ordinarily have a supervisory jurisdiction of the consuls within the neighborhood of their consulate, though sometimes they have no supervisory jurisdiction. This is often exercised by the diplomatic agent accredited to the same state.
Most states have consuls-general, consuls, vice-consuls, consular agents, sometimes also consular students.
(c) The nomination of consuls is an attribute of a sovereign state. They may be chosen either from among its own citizens or from those of the foreign state. Consuls chosen from the citizens of the state to which they are accredited exercise only in part the full consular functions, the limit of the functions being determined by the laws of the accrediting state and by the laws of the receiving state. Some states refuse to receive their own citizens as consuls; others do not accredit foreigners as consuls.
The commission or patent by which a consul-general or consul is always appointed is transmitted to the diplomatic representative of the appointing state in the state to which the consul is sent, with the request that he apply to the proper authority for an exequatur, by which the consul is officially recognized and guaranteed such prerogatives and immunities as are attached to his office. The vice-consul is usually appointed by patent, though he may be nominated by his superior, and is recognized by granting of an exequatur. The exequatur may be revoked for serious cause, though the more usual way is to ask the recall of a consul who is not satisfactory to a state. The exequatur may be refused for cause. It is usually issued by the head of the state. If the form of government in the receiving state or in the accrediting state changes, it is customary to request a new exequatur.
Note. The consular agents, while appointed and confirmed as are the higher consular officers, do not in the practice of the United States receive an exequatur.
| (FORM OF) |
| FULL PRESIDENTIAL EXEQUATUR |
| ................................................. |
| President of the United States of America. |
| To all to whom it may concern |
Satisfactory evidence having been exhibited to me
that...........................................................
has been appointed..............................................
I do hereby recognize him as such, and declare him free to exercise and enjoy such functions, powers, and privileges as are allowed to .................................................... |
[SEAL
OF THE
UNITED
STATES] | In Testimony whereof, I have caused these Letters to be made Patent, and the Seal of the United States to be hereunto affixed.
Given under my hand at the City of Washington the..............day of.............., A.D. 19...., and of the Independence of the United States of America, the............ |
| By the President, | ........................... |
| ............................ |
| Secretary of State. |
(d) Functions. The consul, as the officer representing particularly the commercial and business interests of the state from which he comes, and in a minor degree the other individual interests, has a great variety of functions. His functions are in general such as affect only indirectly the state in which he resides. He is not, like the diplomatic agent, directly concerned with affairs of state; he has no representative character, though in effect he is often the local representative of the diplomatic agent accredited to the state.
The functions of a consul are largely matters determined by custom, treaty stipulation, and by special provisions of his exequatur. Within these limits domestic law of the accrediting state determines the consul's functions. (1) In general the consul has many duties in connection with the commercial interests of the subjects of the state which he serves. These duties extend both to maritime and land commerce. The consul is to care that the provisions of commercial treaties are observed, that proper invoices of goods are submitted, and that shipment is in accord with the regulations of the state which he serves. He is to furnish such reports in regard to commercial and economic conditions as are required. These reports often involve many subjects only indirectly related to trade and commerce. (2) The consul has many duties relating to the maritime service of the state which accredits him. This usually includes such supervision of merchant vessels as the domestic law of his state may grant to him, together with that accorded by custom. His office is a place of deposit of a ship's papers while the ship remains in port. When necessary he may supervise the shipment, wages, relief, transportation, and discharge of seamen, the reclaiming of deserters, the care of the effects of deceased seamen, in some states the adjudication of disputes between masters, officers, and crews, and if necessary he may intervene in cases of mutiny or insubordination. In case of wrecked vessels the consul is usually left considerable latitude in his action. The consul may also authenticate the bill of sale of a foreign vessel to the subject of the state which accredits him. This authentication entitles the vessel to the protection of the consul's state. The consul may also be intrusted with other duties by treaties and custom of given states. (3) The consul represents the interests of the citizens of the state in whose service he is, in matters of authentication of acts under seal, in administration of the property of citizens within his district, in taking charge of effects of deceased citizens, in arbitration of disputes voluntarily submitted to him, visÉ of passports, and minor services. (4) The consul furnishes to the state which he represents information upon a great variety of subjects particularly relating to commercial, economic, and political affairs, the conditions of navigation, and general hydrographic information. Besides this he is expected to keep his state informed of the events of interest transpiring within his district.
As Hall says: "In the performance of these and similar duties the action of a consul is evidently not international. He is an officer of his state to whom are entrusted special functions which can be carried out in a foreign country without interfering with its jurisdiction. His international action does not extend beyond the unofficial employment of such influence as he may possess, through the fact of his being an official and through his personal character, to assist compatriots who may be in need of his help with the authorities of the country. If he considers it necessary that formal representations shall be made to its government as to treatment experienced by them or other matters concerning them, the step ought in strictness to be taken through the resident diplomatic agent of his state,—he not having himself a recognized right to make such communications."[260] In late years there has been in the consular conventions between different states a tendency to extend to consuls the right of complaint to the local authorities in case "of any infraction of the treaties or conventions existing between the states," and "if the complaint should not be satisfactorily redressed, the consular officer, in the absence of the diplomatic agent of his country, may apply directly to the government of the country where he resides."[261]
(e) In some of the Eastern and non-Christian states consuls have special powers and functions in addition to the ordinary powers and functions. The extent of the powers varies, and is usually determined by treaty. With the advance of civilization these special functions are withdrawn, as by the Treaty of the United States with Japan, Nov. 22, 1894,[262] the jurisdiction of the consular courts of the United States in Japan came to an end July 17, 1899.
In general, in Mohammedan and non-Christian states, treaty stipulations secure to the consuls of Western states the right of exercising extensive criminal and civil jurisdiction in cases involving citizens of their own and the Eastern states, or in cases involving citizens of their own and other Western states.[263] In some of the Eastern states the consuls have exclusive jurisdiction over all cases to which citizens of their states are parties;[264] in others the cases involving citizens of the Eastern and Western states are tried in the court of the defendant in the presence of the "authorized official of the plaintiff's nationality," who may enter protest if the proceedings are not in accord with justice,[265] while in certain states or for certain cases mixed courts are constituted. Certain Western states in their domestic laws make provisions for appeal from the decision of the consular court to specified authorities as to the diplomatic agent or to some domestic tribunal.
This jurisdiction is exceptional, furnishes no precedents for international law, tends to become more restricted, and will doubtless gradually disappear.[266]
(f) The privileges and immunities vary according to the states and from the fact that a consul may be, (1) a citizen of the state in which he exercises his consular functions, (2) a domiciled alien, (3) an alien engaged in business or some other occupation in the state where he exercises his functions, or (4) a citizen of the accrediting state engaged exclusively upon consular business.[267] It is, however, necessary that the state which grants an exequatur to, or receives as consul a person from one of the first three classes, grant to such person a measure of privilege and immunity consistent with the free performance of his consular duties.
Each consul has the privilege of placing above the door of his house the arms of the state which he serves, generally also of flying its flag. The archives and official property are inviolable.
In the case of a consul not a citizen of the receiving state and engaged exclusively in consular business, exemption from arrest except on a criminal charge, when he may be punished by local laws or sent home for trial; exemption from witness duty, though testimony may be taken in writing; exemption from taxation; exemption from military charges and service,—is usually conceded by custom and often by treaty. It is not, however, conceded that the consular residence may be used as an asylum.
The consul of the third class, who, though an alien to the receiving state, engages in business other than consular duties, is subject to all local laws governing similarly circumstanced foreigners, except when in the performance of his functions. His consular effects must be kept distinct from those appertaining to his business capacity, which last are under local law.
The domiciled alien exercising consular functions is subject to local law as others similarly circumstanced, which, in some states, may involve considerable obligations. The freedom from local restrictions sufficient for the convenient performance of his consular duties is implied in the grant of the exequatur.
The reception of a citizen as a consular representative of a foreign state does not confer upon him the personal privileges and immunities of any of the other classes, but only the immunities attaching to the office itself, and absolutely necessary for the performance of its duties, as the right to use the arms above the office door, the inviolability of archives, and respect for his authority while in the performance of his functions.
In some of the Eastern states and in some of the non-Christian and semicivilized states consuls are entirely exempt from local jurisdiction, enjoying exemptions similar to those of diplomatic agents.
In time of war the house of the consul is, when flying the flag of the state which he serves, specially protected, and liable to injury only in case of urgent military necessity. Consuls do not necessarily withdraw because of hostilities with the accrediting state.[268]
In general, the consul, by virtue of his public office, is entitled to more respect than a simple citizen, or, as Heffter puts it, "consuls are entitled to that measure of inviolability which will enable them to exercise their consular functions without personal inconvenience."[269]
(g) The consular office may be vacated by a given occupant, (1) by death, (2) by recall, (3) by expiration of his term of service, (4) by revocation of his exequatur. This last cause is the only one needing attention. The exequatur may be revoked by the state issuing it, if the conduct of the holder be displeasing to the state. The state issuing the exequatur is sole judge. This does not necessarily imply any discourtesy to the accrediting state, as the consul does not represent the sovereignty of the state. It is customary, however, to give the accrediting state an opportunity to recall its consul. Exequaturs have, on several occasions, been withdrawn from consuls who have directly or indirectly aided the enemies of the receiving state, or have given offense by their participation in the public affairs of the receiving state. Consequently consuls are usually officially advised to refrain so far as possible from expressions of their opinions upon public affairs, either of the receiving or sending state.
CHAPTER XIV
TREATIES
§ 81. Definition
A treaty is an agreement, generally in writing, and always in conformity with law, between two or more states. A treaty may establish, modify, or terminate obligations. These obligations must be such as are legally within the capacity of the states concerned to negotiate. A treaty runs between states only. As distinguished from other forms of international agreement, a treaty is usually concerned with matters of high state importance, with a considerable number of questions, or with matters involving several states.
Separate articles are clauses attached to a treaty after ratification, and to be interpreted with reference to the whole.
§ 82. Other Forms of International Agreements
Besides the treaty, which is the most formal international agreement, there may be various other methods of expressing the terms of international agreements. The importance of the matter contained in the various documents is not necessarily in proportion to their formality.
The terms "convention" and "treaty" are very generally used interchangeably, though strictly the scope of a convention is less broad, and usually applies to some specific subject, as to the regulation of commerce, navigation, consular service, postal service, naturalization, extradition, boundaries, etc. The terms below are often used loosely in practice.
(a) A protocol, or procÈs verbal, is usually in the form of official minutes, giving the conclusions of an international conference and signed at the end of each session by the negotiators. This does not require ratification by the sovereign as in the case of treaties and conventions, though it is equally binding upon the good faith of the states concerned. Ordinarily the persons signing the protocol have been duly authorized by their respective states in advance. The term "protocol" is sometimes applied to the preliminary draft of an agreement between two or more states as to the agreements entered into by negotiators in preparation of a more formal document, such as a treaty or convention.[270]
(b) Declarations are usually documents containing reciprocal agreements of states, as in granting equal privileges in matters of trade-marks, copyrights, etc., to the citizens of each state. The term is used for the documents, (1) which outline the policy or course of conduct which one or more states propose to pursue under certain circumstances, (2) which enunciate the principles adopted, or (3) which set forth the reasons justifying a given act.
(c) The terms "memoranda" and "memoires" are used to indicate the documents in which the principles entering an international discussion are set forth, together with the probable conclusions. These documents may be considered by the proper authorities, e.g. may be sent to the foreign secretaries of the states concerned, and contre-memoires may be submitted. These documents are generally unsigned.
(d) Besides the above, there may be in diplomatic negotiations letters between the agents, in which the use of the first or second person is common, and notes, which are more formal and usually in the third person. These letters, if made public, may have much force, as in the case of the collective note of the powers commonly called the "Andrassy note," by which the Powers of Europe in 1875 held that in Turkey "reform must be adopted to put a stop to a disastrous and bloody contest."
(e) When representatives of states not properly commissioned for the purpose, or exceeding the limits of their authority, enter into agreements, their acts are called treaties sub spe rati or sponsions. Such agreements require ratification by the state. This ratification may be explicit in the usual form, or tacit, when the state governs its action by the agreements.
(f) Of the nature of treaties are cartels, which are agreements made between belligerents, usually mutual, regulating intercourse during war. These may apply to exchange of prisoners, postal and telegraphic communications, customs, and similar subjects. These documents are less formal than conventions, usually negotiated by agents specially authorized, and do not require ratification, though fully obligatory upon the states parties to the agreement.[271] Here also may be named the suspension of arms, which the chief of an army or navy may enter into as an agreement for the regulation or cessation of hostilities within a limited area for a short time and for military ends. When such agreements are for the cessation of hostilities in general, or for a considerable time, they receive the name of armistices or truces. These are sometimes called conventions with the enemy. These last do not imply international negotiation.
Note. Agreements concluded between states and private individuals or corporations have not an international character, and do not come within the domain of international law. Such agreements may include:—
1. Contracts with individuals or corporations for a loan, colonization, developing a country, etc.
2. Agreements between princes in regard to succession, etc.
3. Concordats signed by the Pope as such and not as a secular prince.
§ 83. The Negotiation of Treaties
The negotiation of treaties includes, (a) the international agreement upon the terms, (b) the drafting of the terms, (c) the signing, and (d) the ratification.
(a) The first step preparatory to the agreement is the submission of proof that the parties entering into the negotiations are duly qualified and authorized. As the sovereigns themselves do not now in person negotiate treaties,[272] it is customary for those who are to conduct such negotiations to be authorized by a commission generally known as full power. The negotiators first present and exchange their full powers. They may be somewhat limited in their action by instructions.[273] Often it is the diplomatic representatives who negotiate with the proper authorities of the state to which they are accredited. The negotiations are sometimes written, sometimes verbal, and are preserved in the procÈs verbaux. In case the negotiations are for any reason discontinued before the drafting of the terms of the agreement, it is customary to state the circumstances leading to this act in a protocol signed by all the negotiators. Sometimes this takes the name of a manifest or of a declaration.
(b) The draft of the treaty is usually, though not necessarily, of a uniform style. Many early treaties opened with an invocation to Deity. This is not the custom followed by the United States, however. The general form is to specify the sovereigns of the contracting states, the purpose of the agreement, and the names of the negotiators, with their powers. This constitutes the preamble. Then follow in separate articles the agreements entered into forming the body of the treaty, the conditions of ratification, the number of copies, the place of the negotiation, the signatures and seals of the negotiators. Sometimes other articles or declarations[274] are annexed or added, with a view to defining, explaining, or limiting words or clauses used in the body of the treaty. Ordinarily the same formula is followed as in the portion of the main treaty subsequent to the body in setting forth conditions of ratification, etc.
The order of the states parties to the treaty, and of the agents negotiating it, varies in the different copies. The copy transmitted to a given state party to the treaty contains the name of that state and of its agents in the first place, so far as possible. Each negotiator signs in the first place the copy of the treaty to be transmitted to his own state, and if the agents of more than one other state sign the treaty, they sign in alphabetical order of their states, in the original language of the convention. This is known as the principle of the alternat.
The following is the beginning and end of the Treaty of Washington relative to the Alabama Claims, etc., including the President's proclamation thereof:—[275]
"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
"A Proclamation
"Whereas a treaty, between the United States of America and her Majesty the Queen of the United Kingdom of Great Britain and Ireland, concerning the settlement of all causes of difference between the two countries, was concluded and signed at Washington by the high commissioners and plenipotentiaries of the respective governments on the eighth day of May last; which treaty is word for word, as follows:—
"'The United States of America and her Britannic Majesty, being desirous to provide for an amicable settlement of all causes of difference between the two countries, have for that purpose appointed their respective plenipotentiaries, that is to say: The President of the United States has appointed, on the part of the United States, as Commissioners in a Joint High Commission and Plenipotentiaries [here follow the names]; and her Britannic Majesty, on her part, has appointed as her High Commissioners and Plenipotentiaries [here follow the names].
"'And the said plenipotentiaries, after having exchanged their full powers, which were found to be in due and proper form, have agreed to and concluded the following articles:—
[Here follow 42 articles.]
"'Article XLIII
"'The present treaty shall be duly ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, and by her Britannic Majesty; and the ratifications shall be exchanged either at Washington or at London within six months from the date hereof, or earlier if possible.
"'In faith whereof, we, the respective plenipotentiaries, have signed this treaty and have hereunto affixed our seals.
"'Done in duplicate at Washington the eighth day of May, in the year of our Lord one thousand eight hundred and seventy-one.'
[Here follow the seals and signatures.]
"And whereas the said treaty has been duly ratified on both parts, and the respective ratifications of the same were exchanged in the city of London, on the seventeenth day of June, 1871, by Robert C. Schenck, Envoy Extraordinary and Minister Plenipotentiary of the United States, and Earl Granville, her Majesty's Principal Secretary of State for Foreign Affairs, on the part of their respective governments:
"Now, therefore, be it known that I, Ulysses S. Grant, President of the United States of America, have caused the said treaty to be made public, to the end that the same, and every clause and article thereof, may be observed and fulfilled with good faith by the United States and the citizens thereof.
"In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
"Done at the City of Washington this fourth day of July, in the year of our Lord one thousand eight hundred and seventy-one, and of the Independence of the United States the ninety-sixth.
"U. S. Grant.
"By the President:
"Hamilton Fish, Secretary of State."
There is no diplomatic language, though various languages have from time to time been more commonly used. In early treaties and diplomatic works Latin was very common, and it was used so late as the Treaty of Utrecht in 1713. Spanish prevailed for some years toward the end of the fifteenth century. From the days of Louis XIV., when the French particularly became the court language, it has been widely used in congresses and treaties. Frequently, when used, there have been inserted in the treaties provisions that the use of French should not be taken as a precedent. The French language is, however, commonly employed in congresses in which a considerable number of different languages are represented, and the original forms of the treaties are drawn in French. During the nineteenth century this has been very common, as in the acts of the Congress of Vienna, 1815; Aix-la-Chapelle, 1818; Paris, 1856; Berlin, 1878 and 1885; Brussels, 1890. Even other states of Europe, in making treaties with Asiatic and African states, have agreed upon French as the authoritative text for both states. In some of the treaties of the United States and the Ottoman Porte, the French language is used.
It is customary, when the treaty is between states having different official languages, to arrange for versions in both languages in parallel columns, placing at the left the version in the language of the state to which the treaty is to be transmitted.
(c) In signing the treaty each representative signs and seals in the first place the copy to be sent to his own state. The order of the other signatures may be by lot or in the alphabetical order of the states represented. The signing of the treaty indicates the completion of the agreement between those commissioned in behalf of the states concerned. This does not irrevocably bind the states which the signers represent, though the fact that its representative has signed a treaty is a reason for ratification which cannot be set aside except for most weighty cause.
(d) Ratification is the acceptance by the state of the terms of the treaty which has been agreed upon by its legally qualified agent. The exchange of ratifications is usually provided for in a special clause, e.g. "The present treaty shall be ratified, and the ratifications exchanged at ... as speedily as possible." By this clause the state reserves to itself the right to examine the conditions before entering into the agreement. At the present time it is held that even when not expressed, the "reserve clause" is understood.
The ratification conforms to the domestic laws of each state. Ordinarily it is in the form of an act duly signed and sealed by the head of the state. In the act of ratification the text of the treaty may be reproduced entire, or merely the title, preamble, the first and last articles of the body of the treaty, the concluding clauses following the last article, the date, and the names of the plenipotentiaries.
In many states prior approval of the treaty by some legislative body is necessary. In the United States the Constitution provides that the President "shall have power by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur."[276] In the United States it has frequently happened that the Senate has not approved of treaties, and they have therefore failed of ratification. This was the fate of the Fishery Treaty with Great Britain in 1888.
The ratification may be refused for sufficient reason. Each state must decide for itself what is sufficient reason. The following have been offered at various times as valid reasons for refusal of ratification: (1) error in points essential to the agreement, (2) the introduction of matters of which the instructions of the plenipotentiaries do not give them power to treat, (3) clauses contrary to the public law of either of the states, (4) a change in the circumstances making the fulfillment of the stipulations unreasonable, (5) the introduction of conditions impossible of fulfillment, (6) the failure to meet the approval of the political authority whose approval is necessary to give the treaty effect, (7) the lack of proper credentials on the part of the negotiators or the lack of freedom in negotiating.
The exchange of ratifications is usually a solemn, i.e. highly formal, ceremony by which parties to the treaty or convention guarantee to each other the execution of its terms. As many copies of the act of ratification are prepared by each state as there are state parties to the treaty. When the representatives of the states assemble for the exchange of ratifications, they submit them to each other. These are carefully compared, and if found in correct form, they make the exchange and draw up a procÈs verbal of the fact, making as many copies of the procÈs verbal as there are parties to the treaty. At this time also a date for putting into operation the provisions of the treaty may be fixed. Sometimes clauses explanatory of words, phrases, etc., in the body of the treaty are agreed upon. Such action usually takes the form of a special procÈs verbal or protocol.
Unless there is a stipulation as to the time when a treaty becomes effective, it is binding upon the signatory states from the date of signing, provided it is subsequently ratified.
A state may assume a more or less close relation to the agreements contained in treaties made by other states, by measures less formal than ratification. These measures are commonly classed as acts of, (1) approbation, by which a state without becoming in any way a party to the treaty assumes a favorable attitude toward its provisions, (2) adhesion, by which a state announces its intention to abide by the principles of a given treaty without becoming party to it, and (3) accession, by which a state becomes a party to a treaty which has already been agreed upon by other states.
Note. After the completion of the negotiation it is customary to promulgate and publish the treaty or convention. Both these acts are matters of local rather than international law. The promulgation is the announcement by the chief of the state that the treaty or convention has been made, and the publication is the official announcement of the contents of the treaty or convention. See p. 204.
§ 84. Validity of Treaties
Four conditions are very generally recognized as essential to the validity of a treaty.
(a) The parties to the treaty must have the international capacity to contract, i.e. ordinarily they must be independent states.
(b) The agents acting for the state must be duly authorized, i.e. the plenipotentiaries must act within their powers.
(c) There must be freedom of consent in the agreements between the states. This does not imply that force, as by war, reprisals, or otherwise, may not be used in bringing about a condition of affairs which may lead a state, without parting with its independence, to make such sacrifices as may be necessary to put an end thereto. No constraint can be put upon the negotiators of the treaty by threats of personal violence, or in any way to prohibit their free action, without invalidating their acts. There is no freedom of consent when the agreement is reached through fraud of either party, and treaties so obtained are not valid.
(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, partition 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. Classification of Treaties
Treaties have been variously classified, but the classifications serve no great purpose. The most common classification 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, principal or accessory, etc.; as regards objects, (1) general or (2) special.[277] In a narrower sense treaties may be divided into many classes, as political, economic, guarantee, surety, neutrality, alliance, friendship, 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 classes are sufficiently described by their titles. The nature of some of the classes is not fully indicated in the title.
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 principals 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 constitute 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 ambassador 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 ships were entitled 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 Japan, May 8, 1895, Article 6, asserts that, "All treaties between Japan 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 Japanese 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., asserts that "The state of war existing between Spain and the United States terminates the treaty of peace and friendship 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
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 circumstances 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 establishing 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 participate 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 classed 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 analogous. 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 municipal and international law.
§ 91. Reprisals
Reprisals are acts of a state performed with a view to obtaining redress for injuries. The injuries leading to reprisals may be either to the state or to a citizen, and the acts of reprisal may fall upon the offending state or upon its citizens either in goods or person. The general range of acts of reprisal may be by (1) the seizure and confiscation of public property or private property, and (2) the restraint of intercourse, political, commercial, or general. In extreme cases, acts of violence upon persons belonging to one state, when in a foreign state, have led to similar acts upon the part of the state whose subjects are injured against the subjects of the foreign state. This practice is looked upon with disfavor, though it might be sanctioned by extremest necessity. Acts of retaliation for the sake of revenge are generally discountenanced.
§ 92. Embargo
Embargo consists in the detention of ships and goods which are within the ports of the state resorting to this means of reprisal. It may be (1) civil or pacific embargo, the detention of its own ships, as by the act of the United States Congress in 1807, to avoid risk on account of the Berlin Decree of Napoleon, 1806, and the British Orders in Council, 1807; or (2) hostile, the detention of the goods and ships of another state. It was formerly the custom to detain within the ports of a given state the ships of the state upon which it desired to make reprisals, and if the relations between the states led to war to confiscate such ships. Hostile embargo may now be said to be looked upon with disfavor, and a contrary policy is generally adopted, by which merchant vessels may be allowed a certain time in which to load and depart even after the outbreak of hostilities. The Naval War Code of the United States provides that "Merchant vessels of the enemy, in ports within the jurisdiction of the United States at the outbreak of war, shall be allowed thirty days after war has begun to load their cargoes and depart."[286] By the proclamation of the President of the United States declaring that war with Spain had existed since April 21, 1898, it was also declared that "Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places."[287] Spain, by the royal decree of April 23, 1898, declared "A term of five days from the date of the publication of the present royal decree in the Madrid Gazette is allowed to all United States ships anchored in Spanish ports, during which they are at liberty to depart."[288]
§ 93. Pacific Blockade
Pacific blockade is a form of reprisal or constraint which consists in the blockading by one or more states of certain ports of another state without declaring or making war upon that state. In the conduct of such blockades practice has varied greatly. In general, however, the vessels of states not parties to the blockade are not subject to seizure. Such vessels may be visited by a ship of the blockading squadron in order to obtain proof of identity. Whether vessels under foreign flags are liable to other inconveniences or to any penalties is not defined by practice or opinion of text writers. "The Institute of International Law," in 1887, provided that pacific blockade should be effective against the vessels of the blockaded party only. This position seemed to be one which could be generally accepted. From the nature of pacific blockade as a measure short of war, its consequences should be confined only to the parties concerned. The pacific blockade of Greece in 1886 extended only to vessels flying the Greek flag,[289] but the admirals of the Great Powers in the pacific blockade of Crete in 1897 endeavored to establish the right to control other than Greek vessels if they carried merchandise for the Greek troops or for the interior of the island. As no case arose to test the claim, this question cannot be regarded as settled.
The provisions of the pacific blockade of Crete in 1897 were as follows:—
"The blockade will be general for all ships under the Greek flag.
"Ships of the six powers or neutral may enter into the ports occupied by the powers and land their merchandise, but only if it is not for the Greek troops or the interior of the island. These ships may be visited by the ships of the international fleets.
"The limits of the blockade are comprised between 23° 24' and 26° 30' longitude east of Greenwich, and 35° 48' and 34° 45' north latitude."[290]
The Secretary of State of the United States, in acknowledging the receipt of the notification of the action of the powers, said, "I confine myself to taking note of the communication, not conceding the right to make such a blockade as that referred to in your communication, and reserving the consideration of all international rights and of any question which may in any way affect the commerce or interests of the United States."[291] The weight of authority supports the position of the United States.
The first attempt to establish a blockade without resorting to war was in 1827, when Great Britain, France, and Russia blockaded the coasts of Greece with a view to putting pressure upon the Sultan, its nominal ruler. Since that time there have been pacific blockades varying in nature: blockade of Tagus by France, 1831; New Granada by England, 1836; Mexico by France, 1838; La Plata by France, 1838 to 1840; La Plata by France and England, 1845 to 1848; Greece by England, 1850; Formosa by France, 1884; Greece by Great Britain, Germany, Austria, Italy, and Russia, 1886; Zanzibar by Portugal, 1888; and Crete by Great Britain, Germany, Austria, France, Italy, and Russia, 1897. From these instances it may be deduced (1) that pacific blockade is a legitimate means of constraint short of war, (2) that those states parties to the blockade are bound by its consequences, (3) that as a matter of policy it may be advisable to resort to pacific blockade in order to avoid the more serious resort to war, and (4) that states not parties to the pacific blockade are in no way bound to observe it, though their ships cannot complain because they are required to establish their identity in the ordinary manner.
