International Law 01 Op Peu of T

INTERNATIONAL LAW
062A..S
INTERNATIONAL
•» LAW
A TREATISE
BY
L. OPPENHEIM, M.A., LL.D.

WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW
HONORARY MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID
VOL. I.
PEACE
SECOND EDITION
LONGMANS, GREEN AND CO.

39 PATERNOSTER ROW, LONDON
1912^
NEW YORK, BOMBAY, AND CALCUTTA
All rights reserved

TO
EDWARD ARTHUR WHITTUCK
WHOSE SYMPATHY AND ENCOURAGEMENT
HAVE ACCOMPANIED THE PROGRESS OF THIS WORK
FROM ITS INCEPTION TO ITS CLOSE

PREFACE
TO THE SECOND EDITION
THE course of events since 1905, when this work first

made its appearance, and the results of further research
have necessitated not only the thorough revision of the
former text and the rewriting of some of its parts,
but also the discussion of a number of new topics.
But while the new matter which has been incorporated
has added considerably to the length of the work — the
additions to the bibliography, text, and notes amount-
ing to nearly a quarter of the former work — this second
edition is not less convenient in size than its predecessor.
By rearranging the matter on the page, using a line
extra on each, and a greater number of words on a
line, by setting the bibliography and notes in smaller
type, and by omitting the Appendix, it has been found
possible to print the text of this new edition on 626
pages, as compared with 594 pages of the first edition.
The system being elastic it was possible to place most
of the additional matter within the same sections and
under the same headings as before. Some of the points
treated are, however, so entirely new that it was neces-
sary to deal with them under separate headings, and
within separate sections. The reader will easily dis-
tinguish them, since, to avoid disturbing the arrange-
ment of topics, these new sections have been inserted
between the old ones, and numbered as the sections
preceding them, but with the addition of the letters
a, b, &c. The more important of these new sections
are the following : § 178a (concerning vii
the utilisation of
Vlli PREFACE
the flow of rivers) ; §§ 287a and 2876 (concerning Wire-

less Telegraphy on the Open Sea) ; §§ 287c and 2S7d
(concerning Mines and Tunnels in the Subsoil of the
Sea bed) ; § 446a (concerning the Casa Blanca incident) ;
§§ 476a and 4766 (concerning the International Prize
Court and the suggested International Court of Justice) ;
§§ 568a and 568& (concerning the Conventions of the
Second Hague Peace Conference, and the Declaration
of London) ; § 576a (concerning Pseudo-Guarantees).
Only towards the end of the volume has this mode of
dealing with the new topics been departed from. As
the chapter treating of Unions, the last of the volume,
had to be entirely rearranged and rewritten, and a new
chapter on Commercial Treaties inserted, the old ar-
rangement comes to an end with § 577 ; and §§ 578 to
596 of this new edition present an arrangement of topics
which differs from that of the former edition.
I venture to hope that this edition will be received
as favourably as was its predecessor. My aim, as
always, has been to put the matter as clearly as possible
before the reader, and nowhere have I forgotten that
I am writing as a teacher for students. It is a matter
of great satisfaction to me that the prophetic warnings
of some otherwise very sympathetic reviewers that a
comprehensive treatise on International Law in two
volumes would never be read by young students have
proved mistaken. The numerous letters which I have
received from students, not only in this country but
also in America, Japan, France, and Italy, show that
I was not wrong when, in the preface to the former
edition, I described the work as an elementary book
for those beginning to study the subject. Many years
of teaching have confirmed me in the conviction that
those who approach the study of International Law
should at the outset be brought face to face with its
complicated problems, and should at once acquire a
PREFACE IX
thorough understanding of the wide scope of the subject.

If writers and lecturers who aim at this goal will but
make efforts to use the clearest language and an ele-
mentary method of explanation, they will attain success
in spite of the difficulty of the problems and the wide
range of topics to be considered.
I owe thanks to many reviewers and readers who
have drawn my attention to mistakes and misprints
in the first edition, and I am especially indebted to
Mr. C. J. B. Hurst, C.B., Assistant Legal Adviser to
the Foreign Office, to Mr. E. S. Eoscoe, Admiralty
Registrar of the High Court, and to Messrs. F. Ritchie
and G. E. P. Hertslet of the Foreign Office who gave
me valuable information on certain points while I was
preparing the manuscript for this edition. And I must
likewise most gratefully mention Miss B. M. Rutter and
Mr. C. F. Pond who have assisted me in reading the
proofs and have prepared the table of cases and the
exhaustive alphabetical index.
L. OPPENHEIM.
WHEWELL HOUSE,
CAMBRIDGE,
November 1, 1911.
ABBREVIATIONS
OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT
THE books referred to in the bibliography and notes are, as a

rule, quoted with their full titles and the date of their publica-
tion. But certain books and periodicals which are very often
referred to throughout this work are quoted in an abbreviated
form, as follows :—
A.J. The American Journal of International Law.
Annuaire Annuaire de 1'Institut de Droit Inter-
national.
Bluntschli = Bluntschli, Das moderne Volkerrecht der
civilisirten Staaten als Rechtsbuch dar-
gesteUt, 3rd ed. (1878).
Bonfils Bonfils, Manuel De Droit International
Public, 5th ed. by Fauchille (1908).
Bulmerincq Bulmerincq, Das Volkerrecht (1887).
Calvo Calvo, Le Droit International etc., 5th ed.
6 vols. (1896).
Despagnet Despagnet, Cours De Droit International
Public, 4th ed. by de Boeck (1910).
Field Field, Outlines of an International Code
(1872).
Fiore Fiore, Nouveau Droit International Public,
deuxieme Edition, traduite de 1'Italien et
annotee par Antoine, 3 vols. (1885).
Fiore, Code = Fiore, Le Droit International Codifie, nou-
velle Edition, traduite de 1'Italien par
Antoine (1911).
Gareis Gareis, Institutionen des Volkerrechts, 2nd
ed. (1910).
Grotius Grotius, De Jure Belli ac Pacis (1625).
Hall Hall, A Treatise on International Law, 4th
ed. (1895).
Halleck Halleck, International Law, 3rd English ed.
by Sir Sherston Baker, 2 vols. (1893).
Hartmann Hartmann, Institutionen des praktischen
Volkerrechts in Friedenszeiten (1874).
ABBREVIATIONS OF TITLES OP BOOKS
Heffter Heffter, Das Europaische Volkerrecht der XI

Gegenwart, 8th ed. by Geffcken (1888).
Heilborn, Heilborn, Das System des Volkerrechts
System entwickelt aus den volkerrechtlichen Be-
griffen (1896).
Holland, Holland, Studies in International Law
Studies (1898).
Holland, Holland, The Elements of Jurisprudence,
Jurisprudence 6th ed. (1893).
Holtzendorff = Holtzendorff, Handbuch des Volkerrechts,
4 vols. (1885-1889).
Kliiber Kliiber, Europaisches Volkerrecht, 2nd ed.
by Morstadt (1851).
Lawrence = Lawrence, The Principles of International
Law, 4th ed. (1910).
Lawrence, = Lawrence, Essays on some Disputed Ques-
Essays tions of Modern International Law (1884).
Liszt Liszt, Das Volkerrecht, 6th ed. (1910).
Lorimer Lorimer, The Institutes of International
Law, 2 vols. (1883-1884).
Maine Maine, International Law, 2nd ed. (1894).
Manning Manning, Commentaries on the Law of
Nations, new ed. by Sheldon Amos (1875).
Martens Martens, Volkerrecht, German translation
of the Russian original in 2 vols. (1883).
Martens, G. F. = G. F. Martens, Precis Du Droit Des Gens
Moderne De L' Europe, nouvelle ed. par
Verge, 2 vols. (1858).
Martens, R.
Martens, N.R. These are the abbreviated quo-
tations of the different parts of
Martens, N.S.
Martens, Recueil De Traites (see
Martens, N.R.G.
Martens, N.R.G. 010 p. 102 of this volume), which are
Martens, N.R.G. o j o in common use.
Martens, r= Martens, Causes Celebres Du Droit Des Gens,
Causes 5 vols., 2nd ed. (1858-1861).
Merignhac Merignhac, Traite De Droit Public Inter-

national, vol. i. (1905), vol. ii. (1907).
Moore Moore, A Digest of International Law, 8
vols., Washington (1906).
Nys Nys, Le Droit International, 3 vols. (1904-
1906).
Perels Perels, Das Internationale offentliche See-
recht der Gegenwart, 2nd ed. (1903).
Xll ABBREVIATIONS OF TITLES OF BOOKS
Phillimore Phillimore, Commentaries upon Interna-

tional Law, 4 vols. 3rd ed. (1879-1888).
Piedelievre Piedelievre, Precis De Droit International
Public, 2 vols. (1894-1895).
Pradier-Fodere = Pradier-Fod6re, Traite De Droit Interna-
tional Public, 8 vols. (1885-1906).
Pufendorf Pufendorf, De Jure Naturae et Gentium
(1672).
Rivier Rivier, Principes Du Droit Des Gens, 2 vols.
(1896).
R.I. Revue De Droit International Et De Legis-
lation Comparee.
R.G. Revue General De Droit International
Public.
Taylor Taylor, A Treatise on International Public
Law (1901).
Testa Testa, Le Droit Public International Mari-
time, traduction du Portugais par Bou-
tiron (1886).
Twiss Twiss, The Law of Nations, 2 vols., 2nd ed.
(1884, 1875).
Ullmann Ullmann, Volkerrecht, 2nd ed. (1908).
Vattel Vattel, Le Droit Des Gens, 4 books in 2 vols.,
nouvelle e"d. (Neuchatel, 1773).
Walker Walker, A Manual of Public International
Law (1895).
Walker, = Walker, A History of the Law of Nations,
History vol. i. (1899).
Walker, = Walker, The Science of International Law
Science (1893).
Westlake Westlake,
1907). International Law, 2 vols. (1904-
Westlake, Westlake, Chapters on the Principles of
Chapters International Law (1894).
Wharton Wharton, A Digest of the International Law
of the United States, 3 vols. (1886).
Wheaton Wheaton, Elements of International Law,
8th American ed. by Dana (1866).
Z.V. Zeitschrift fur Volkerrecht und Bundes-
staatsrecht.
CASES CITED
Aegi, § 437, p. 496 Exchange, the, § 450, p. 507 note 1
-Ambrose Light, the, § 273, p. 342
note 2 ; § 276, p. 345 note 1 Fonds pieux des Californias, § 476,
Amelia Island, § 132, p. 186
Anderson, John, § 147, p. 205 note 1 Franconia, the, § 25, p. 29
Anna, the, § 234, p. 301 p. 521
Aubespine, L', § 387, p. 459 Gallatin, § 403, p. 474 note 1
Germany, Great Britain, and Italy v.
Bartram v. Robertson, § 580, p. 611 Venezuela, § 476, p. 521
note 1 Germany, France, and Great Britain v.
Bass, de, § 387, p. 459 Japan, § 476, p. 521
Beckert, Wilhelm, § 402, p. 474 Gore and Pinkney, § 458, p. 513
Belgenland, the, § 265, p. 335 note 3 Guebriant, Madame de, § 370, p. 447
Belle-Isle, Marechal de, § 398, p. 471 Gurney, § 402, p. 473 note 2
Boisset, M., § 163, p. 220 Gyllenburg, § 388, p. 459
Botiller v. Dominguez, § 546, p. 578
note 2 Haggerty, § 427, p. 489
Brooke, Sir James, § 209, p. 282 note 2 Hall v. Campbell, § 240, p. 306 note 1
Brunswick, Duke of, v. King of Hellfeld v. Russian Government,
Hanover, § 353, p. 433 § 115, p. 169 note 4
-Huascar, the, § 273, p. 342
Canning, George, and the Russian Huus v. New York and Porto Rico
Ambassador, § 481, p. 532 Steamship Co., § 579, p. 609 note 1
Canning, Sir Stratford, § 375, p. 451
Caroline, the, § 133, p. 187 ; § 444, Indian Chief, the, § 434, p. 494 note 1
p. 501 ; § 446, p. 501 Ionian Ships, § 93, p. 146 note 1
Casa Blanca, § 446a, p. 502 ; § 476, p. . Isabella, Queen of Spain, § 351, p. 432
521
Castioni, Ex parte, § 334, p. 415 note 4 Jacquin, § 335, p. 416
Cellamare, Prince, § 388, p. 459 Jager. See De Jager
Cespedes, the, § 273, p. 343, note 1 Jassy, the, § 450, p. 507 note 1
Charkieh, the, § 91, p. 144 note 1 ; Johann Friederich, the, § 265, p. 335
§ 450, p. 507 note 1 note 2 ; § 271, p. 339 note 1
Charlton, Porter, § 330, p. 408
Chartered Mercantile Bank of India v. Kalkstein, § 390, p. 464
Netherlands India Steam Naviga- Keiley, § 375, p. 450
tion Co., § 265, p. 335 note 2 Koszta, Martin, § 313, p. 388 note 1
Cherokee Tobacco, the, § 546, p. 578
note 2 Lebanon, the. See Vaderland
Constitution, the, § 450, p. 507 note 1 L' Aubespine. See Aubespine
Cook v. Sprigg, § 82, p. 129 note 4
Costa Rica Packet, the, § 162, p. 217 McLeod, § 133, p. 187 note 2 ; § 446,
Cutting, § 147, p. 205
Macartney v. Garbutt, § 375, p. 450
Danish Fleet, the, § 131, p. 186 p.
note5012 ; § 394, p. 467 note 1
De Jager v. The Attorney-General for Magdalena Steam Navigation Co. v.
Natal, § 317, p. 394 Martin, § 391, p. 465 note 2
De Haber v. Queen of Portugal, § 115, Maori King, the, § 261, p. 331 note 1
p. 169 note 2 Mendoza, § 387, p. 459
Delagoa Bay, § 247, p. 313 Meunier, In re, § 334, p. 415 note 4
. Dogger Bank, § 163, p. 219 note 2 § 338, p. 418 note 3
Dubois, § 392, p. 465 Monaldeschi, § 348, p. 431 note 1
xiii
XIV CASES CITED
Montngnini, § 106, p. 160 note 1 ; Sa, Don Pantaloon, § 404, p. 475

§ 386, p. 458 not* 1 ; § 411, p. 478 Sackville, Lord, § 383, p. 4f>:>
note 2 note 1
Montozuma, the, § 273, p. 343 note 1 Santa Lucia, § 247, p. 313
Monti, Marquis de, § 400, p. 472 Sapphire, the, § 115, p. 169 note 1
Firth, § 1'Jl, p. 263 note 3. Savarkar, § 332, p. 410; § 476,
See also Mortenson v. Peters ,
ele ,
Mortensen v. Peters, § 22, p. 28 note 1 ; i a aeboah, § 456 p. 511
,
t d he, e
§ 192, p. 264 note 2 c
S no a n t § 2 e, p. 263, not 23
1 ,
Muscat Dhows, the, § 295, p. 372 She e, th § 27 p. 34
u l , 8 , 0
note 2; § 476, p. 521 So nger y§de3,9 p. 47
i ia,
Muagrove v. Chun Teeong Toy, § 141, Sprrathcl § 390, . p. 461e ancon
p. 200 note 1 t
S ly, th e e
S F r the
Sul § 396, , p. 468
Ncreide, the, § 21, p. 26 note 2 Sun Yat Sen § 390, p. 464
Nikitachenkow, § 390, p. 463
Nillinu, § 330, p. 407 Taylor v. Best, § 391, p. 465 note 2
North Atlantic Coast Fisheries, § 191, Tourville, § 330, p. 407
p. 262, note 1 ; § 205, p. 276, note 2 ;
§458, p. 513 note 1 ; § 476, p. 522 22
L5
United States v. Repentigny, § 240,
Norway r. Sweden, § 476, p. 522
p. 306States
United note 1r. Prioleau, § 82, p. 129
Orinoco Steamship Co., § 476, p. 522 note 1 ; § 115, p. 169 note 3
United States v. Smith, § 21, p. 26
Paladini. § 330, p. 408 note 2
Panther, the, § 163, p. 219 United States v. Venezuela, § 476,
Paquette Habana, the, § 21, p. 26
note 2 United States v. Wagner, § 115, p. 169
Parkinson v. Potter, § 394, p. 467 notel
notel p. 522
Parlement Beige, the, § 450, p. 507
•oil Vaderland, the, § 2876, p. 357
PlAton-Hallcrmuml, § 240, p. 306 Vavasseur v. Krupp, § 115, p. 169
note 2
Portefta, the, § 273, p. 343 note 1 Vexaincourt, § 163, p. 219
Pouble, Cirilo, § 147, p. 205 note 1
Priolcau v. United States, § 82, p. 129 Virginius, the, § 133, p. 187 note 2
note 1 ; f 115, p. 169 note 3
Waddington, Carlo, § 404, p. 475
Rotf. v. Cunningham, § 194, p. 266 Washburne, § 399, p. 471
note 2 Wart Band Central Mining Co. v.
B«public of Bolivia v. The Indemnity The King, § 21, p. 26 note 2 ; § 82,
Mutual Marine Assurance Co., § 272,
p. 341 note 1 p. 129 note
William, King 4 of Holland, § 350, p.
Republic of Mexico v. Francisco de 432
Arrangoiz, § 115, p. 169 note 1 Whitney v. Robertson, § 546, p. 578
Ripperda, Duke of, § 390, p. 461 note 2 ; § 580, p. 611 note 1.
ROM, Bishop, $ 362, p. 443 note 1 Wrech, Baron de, § 391, p. 465
CONTENTS
OF
THE FIRST VOLUME
INTRODUCTION
CHAPTER I
FOUNDATION OF THE LAW OF NATIONS
I. The Law of Nations as Law

SECT. PAGE
1. Conception of the Law of Nations ... . . . 3
2. Legal Force of the Law of Nations contested . ^ , .. . 4
3. Characteristics of Rules of Law . . . '. . . . 6
4. Law-giving authority not essential for the existence of Law . 6
5. Definition and Three Essential Conditions of Law . . . 8
6. Law not to be identified with Municipal Law .... 9
7. The "Family of Nations" a Community 1 . '• •* . ; 9
8. The " Family of Nations " a Community with Rules of Conduct 11
9. External Power for the enforcement of Rules of International
Conduct 13
10. Practice recognises Law of Nations as Law .'' ' . . . 14
II. Basis of the Law of Nations
11. Common Consent the Basis of Law . . "•'*.•' . . 15

12. Common Consent of the Family of Nations the Basis of Inter-
national Law . . . . . ... .16
13. States the Subjects of the Law of Nations > >, v. . . „ .19
14. Equality an Inference from the Basis of International Law . 20
III. Sources of the Law of Nations

15. Source in Contradistinction to Cause . . . . ;. . 20
16. The Two Sources of International Law . . .; ' . .21
17-
18. Custom inas Contradistinction
Treaties to Usage Law
Source of International .. .. ...' V" . 22
23
19. Factors influencing the Growth of International Law . . 24
XVI CONTENTS OF
IV. Relations between International and Municipal Law

SECT.
20. Essential Difference between International and Municipal Law .
21. Law of Nations never per se Municipal Law ....
22. Certain Rules of Municipal Law necessitated or interdicted
23. Presumption against conflicts between International and Muni-
cipal Law ..........
24. Presumption of Existence of certain necessary Municipal Rules .
25. Presumption of the Existence of certain Municipal Rules in
Conformity with Rights granted by the Law of Nations
V. Dominion of the Law of Nations

2fl. Range of Dominion of International Law controversial
27- Three Conditions of Membership of the Family of Nations
28. Present Range of Dominion of the Law of Nations .
29. Treatment of States outside the Family of Nations .
VI. Codification of the Law of Nations

80. Movement in Favour of Codification
31. Work of the First Hague Peace Conference .
32. Work of the Second Hague Peace Conference and the Naval
Conference of London ........
33. Value of Codification of International Law contested
34. Merits of Codification in general .....
35. Merita of Codification of International Law ....
36. How Codification could be realised
CHAPTER II
DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS
I. Development of the Law of Nations before Grotius

37- No Law of Nations in Antiquity
88. The Jews
39. The Greeks
40. The Romans
41. No need for a Law of Nations during the Middle Ages
42. The Fifteenth and Sixteenth Centuries ....
II. Development of the Law of Nations after Grotius

43. The time of Grotius ....
44.
46. The
The period 1721-1789
period 1648-1721 . . '.
46. The period 1789-1815
47. The period 1815-1856
48. The period 1856-1874
49. The period 1874-1899
60. The Twentieth Century
51. Six Lessons of the History of the Law of Nations
THE FIRST VOLUME XV11
III. The Science of the Law of Nations

I !OT. PAGE
2. Forerunners of Grotms . . . . '. ; . i'" • 83

3. Grotius . . ~. ••- ;••/•• . ••';/'•**•
....... '••.• '' v!y:Vi'i-?i. ss
4,. Zouche '•?*' .'.''. . 88
5. The Naturalists . . . .' '. • •;';•; . :.l : '.." . 89
6. The Positivists . . . . ' . %'' ' .' ' :'. I '""'' "'". 90
7. The Grotians .92
8. Treatises of the Nineteenth and Twentieth Centuries . . 94
9. The Science of the Law of Nations in the Nineteenth and
Twentieth Centuries, as represented by treatises . , . 98
00. Collection of Treatises . . . . . '. . . 102
(H. Bibliographies.
()2. Periodicals . . ..,„,*,
. . ,^t. '..• ; ;«t;
. . ;,,v,
. .• 103
PART I
THE SUBJECTS OF THE LAW OF NATIONS
CHAPTER I
INTERNATIONAL PERSONS
I. Sovereign States as International Persons

63. Real and apparent International Persons . .,..,. ., . 107
64. Conception of the State . ' '. ". . . . :. . 108
65.
66. Not-full Sovereign
Divisibility States
of Sovereignty .contested
. .. ...
. . .. ''.! f.-
. ..110
109
67. Meaning of Sovereignty in the Sixteenth and Seventeenth Cen-
turies ........... Ill
68. Meaning of Sovereignty in the Eighteenth Century . . .112
69. Meaning of Sovereignty in the Nineteenth Century . . .113
70. Result of the Controversy regarding Sovereignty . . .115
II. Recognition of States as International Persons

71. Recognition a condition of Membership of the Family of Nations 116
72. Mode of Recognition . . . . . . ... 117
73. Recognition under Conditions . . .' . V'_' . .. . 118
74.
75. Recognition Timelyin and
State Recognition Precipitate . to other
contradistinction . "'/'' .' ' .
Recognitions .. 120
119
III. Changes in the Condition of International Persons

76. Important in contradistinction to Indifferent Changes . . 121
77- Changes not affecting States as International Persons . . 122
78. Changes affecting States as International Persons . ,{ ..•; • .. 123
79. Extinction of International Persons , , . «,«;,. 124
VOL. I. &
XVlli CONTENTS OF
IV. Succession of International Persons PAGE

SIVT.
80. Common Doctrine regarding Succession of International Persons 125
81. How far Succession actually takes place 127
82. Succession in consequence of Absorption 127
83. Succession in consequence of Dismemberment .... 130
84. Succession in case of Separation or Cession . . . .131
V. Composite International Persons

85. Real and apparent Composite International Persons . .132
86. States in Personal Union 133
87- States in Real Union 134
88. Confederated States (Staatenbund) 135
89. Federal States (Bundesstaaten) 136
VI. Vassal States

90. The Union between Suzerain and Vassal State . . . 140
91. International position of Vassal States . . . .141
VII. States under Protectorate
92. Conception of Protectorate 144
93. International position of States under Protectorate . . .145
94. Protectorates outside the Family of Nations .... 146
VIII. Neutralised States

95. Conception of Neutralised States 147
96. Act and Condition of Neutralisation 148
97. International position of Neutralised States . . . . . 149
98. Switzerland . . . 151
99. Belgium 152
100. Luxemburg .......... 152
101. The former Congo Free State 153
IX. Non-Christian States

102. No essential difference between Christian and other States . 154
103. International position of non-Christian States except Turkey
and Japan .......... 155
X. The Holy See

104. The former Papal States 157
105. The Italian Law of Guaranty . . . . . , .''.,'. 158
106. International position of the Holy See and the Pope . ' . 159
107. Violation of the Holy See and the Pope . . ... 161
XI. International Persons of the Present Day
108. European States ;*. . 162

109. American States 163
110. African States 164
111. Asiatic States . . . . . 164
THE FIKST VOLUME XIX
CHAPTER II
POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS
I. International Personality
SECT. PAGE
112. The so-called Fundamental Rights 165
113. International Personality a Body of Qualities . . . .166
114. Other Characteristics of the position of the States within the
Family of Nations 167
II. Equality, Rank, and Titles

115. Legal Equality of States 168
116. Political Hegemony of Great Powers ..... 170
117. Rank of States 171
118. The Alternat 173
119. Titles of States . . - 173
III. Dignity
120. Dignity a Quality . . 174
121. Consequences of the Dignity of States . . . . .175
122. Maritime Ceremonials . . . . . . . .176
IV. Independence and Territorial and Personal Supremacy

123. Independence and Territorial as well as Personal Supremacy as
Aspects of Sovereignty . . . . . . .177
124. Consequences of Independence and Territorial and Personal
Supremacy » ,; • • • • • . • « .178
125. Violations of Independence and Territorial and Personal
Supremacy. . . . . . - .^ . . . 179
126. Restrictions upon Independence .... . . 180
127. Restrictions upon Territorial Supremacy 182
128. Restrictions upon Personal Supremacy 183
V. Self-preservation
129. Self-preservation an excuse for violations ;. .» . . 184
130. What acts of self-preservation are excused . ... . 185
131. Case of the Danish Fleet (1807) . . . , . -. . . 186
132. Case of Amelia Island . . . ', ,. ., ./-.. .' , . 186
133. Case of the Caroline . .',' ,, v< . '..;•• (V.; , . v - 187
VI. Intervention
134. Conception and Character of Intervention . . . .188
135. Intervention by Right 189
136. Admissibility of Intervention in default of Right . . .193
137. Intervention in the interest of Humanity . . . .194
138. Intervention de facto a Matter of Policy 195
139. The Monroe Doctrine . . . . , . . . . 196
140. Merits of the Monroe Doctrine . . . . ,. . . 198
XX CONTENTS OF
VII. Intercourse
SECT. PAGE
141. Intercourse a presupposition of International Personality . 199
142. Consequences of Intercourse as a presupposition of International
Personality ' ... 200
VIII. Jurisdiction
143. Jurisdiction important for the position of the States within
the Family of Nations 201
144. Restrictions upon Territorial Jurisdiction . .... 202
145. Jurisdiction over Citizens abroad ...... 202
146. Jurisdiction on the Open Sea 203
147. Criminal Jurisdiction over Foreigners in Foreign States . . 203
CHAPTER III
RESPONSIBILITY OF STATES
I. On State Responsibility in General

148. Nature of State Responsibility 206
149. Original and Vicarious State Responsibility .... 207
150. Essential Difference between Original and Vicarious Responsi-
bility . . 208
II. State Responsibility for International Delinquencies

151. Conception of International Delinquencies .... 209
152. Subjects of International Delinquencies ..... 210
153. State Organs able to commit International Delinquencies . 211
154. No International Delinquency without Malice or culpable
Negligence . . 212
155. Objects of International Delinquencies . . . . 212
156. Legal consequences of International Delinquencies . . .213
III. State Responsibility for Acts of State Organs

157- Responsibility varies with Organs concerned . . . .214
158. Internationally injurious Acts of Heads of States . . . 214
159. Internationally injurious Acts of Members of Governments . 215
160. Internationally injurious Acts of Diplomatic Envoys . .215
161. Internationally injurious Attitudes of Parliaments . . .216
162. Internationally injurious Acts of Judicial Functionaries . .216
163. Internationally injurious Acts of administrative Officials and
Military and Naval Forces 218
IV. State Responsibility for Acts of Private Persons

164. Vicarious in contradistinction to Original State Responsi-
bility for Acts of Private Persons 221
165. Vicarious responsibility for Acts of Private Persons relative
only . .222
166. Municipal Law for Offences against Foreign States . J . 222
167. Responsibility for Acts of Insurgents and Rioters . . . 222
THE FIRST VOLUME XXI
PART II
THE OBJECTS OF THE LAW OF NATIONS
CHAPTER I
STATE TERRITORY
I. On State Territory in General

SECT. PAGE
168. Conception of State Territory ... . „ , . . 229

169. Different kinds of Territory . . .:•;'<; . .- '. 230
170. Importance of State Territory . .. .-..'. *. . 231
171. One Territory, one State . . ,; . •'•• • - - 231
II. The different Parts of State Territory
172. Real and Fictional Parts of Territory ..... . . 235
173. Territorial Subsoil . . . * . '..''..' . . 235
174. Territorial Atmosphere . . ;,; • ..•'.' '••/.• ,< • 236
175. Inalienability of Parts of Territory . . . . . . ' . 238
III. Rivers
176. Rivers State Property of Riparian States . . . 239
177. Navigation on National, Boundary, and not-National Rivers . 240
178. Navigation on International Rivers . . . . . .241
178a. Utilisation of the Flow of Rivers . .„, . •.•,.*••.,-,„•,•. 243
IV. Lakes and Land-locked Seas
179. Lakes and Land-locked Seas State Property of Riparian States 245
180. So-called International Lakes and Land-locked Seas . . 246
181. The Black Sea . . ,.*'VV. . ^ . . . . .247
V. Canals
182. Canals State Property of Riparian States v.. •'„ ",...",', . 248
183. The Suez Canal ..... v . •• -,0 ftn • 249
184. The Panama Canal . \ '. ..; ir^ ;; *; >•, , ><r '. ?> , i- 251
VI. Maritime Belt
185. State Property of Maritime Belt contested . . . 265

186. Breadth of Maritime Belt 256
187. Fisheries, Cabotage, Police, and Maritime Ceremonials within
the Belt '..'*. . 257
188. Navigation within the Belt , ^& . 258
189. Jurisdiction within the Belt . . . . < . >^; . 260
190. Zone for Revenue and Sanitary Laws . . i -' '» ;.?>* . . 261
VII. Gulfs and Bays
191.
192. Territorial GulfsGulfs
Non-territorial and and
Bays Bays J! '. ' . 263
262
193. Navigation and Fishery in Territorial Gulfs and Bays . . 265
Xxii CONTENTS OF
VIII. Straits
SECT. PAGB
194. What Straits are Territorial ., . 265
195. Navigation, Fishery, and Jurisdiction in Straits . . . 266
196. The former Sound Dues 267
197. The Bosphorus and Dardanelles 268
IX. Boundaries of State Territory

198. Natural and Artificial Boundaries 270
199. Boundary Waters ...... .... 270
200. Boundary Mountains 272
201. Boundary Disputes 272
202. Natural Boundaries sensu politico ...... 273
X. State Servitudes
203. Conception of State Servitudes . . . . . . 273
204- Subjects of State Servitudes 276
205. Object of State Servitudes 276
206. Different kinds of State Servitudes 278
207- Validity of State Servitudes 279
208. Extinction of State Servitudes . .280
XI. Modes of acquiring State Territory

209. Who can acquire State Territory ? : . 281
210. Former Doctrine concerning Acquisition of Territory . .282
211. What Modes of Acquisition of Territory there are . . .283
212. Original and derivative Modes of Acquisition ... . . 284
XII. Cession
v
213. Conception of Cession of State Territory 285
214. Subjects of Cession 285
215. Object of Cession . • . 286
216. Form of Cession ; . 286
217- Tradition of the ceded Territory . . . . . . 288
218. Veto of third Powers 289
219. Plebiscite and Option .289
XIII. Occupation \j
220. Conception of Occupation . . . . . . . . 291
221. Object of Occupation ;>-, . 292
222. Occupation how effected . . . . . ... 292
223. Inchoate Title of Discovery 294
224. Notification of Occupation to other Powers .... 294
225. Extent of Occupation 295
226. Protectorate as Precursor of Occupation . . . . . 296
227- Spheres of influence 297
228. Consequences of Occupation . . . . . . 298
THE FIRST VOLUME XX111
XIV. Accretion
SECT. PACK
229. Conception of Accretion . . . ..,.%, .. . < . . 299
230. Different kinds of Accretion 299
231. Artificial formations 299
232. Alluvions 300
233. Deltas 300
234. New-born Islands . .301
235. Abandoned River-beds 302
+/ XV. Subjugation
236. Conception of Conquest and of Subjugation .... 302

237. Subjugation in Contradistinction to Occupation . . . 303
238. Justification of Subjugation as a Mode of Acquisition . . 304
239. Subjugation of the whole or of a part of Enemy Territory . 304
240. Consequences of Subjugation ....... 305
241. Veto of third Powers .... .j;i!,- .,. . .307
XVI. Prescription
242. Conception of Prescription . . . « ». . . 308
243. Prescription how effected .... «... - ; • 309
XVII. Loss of State Territory

244. Six modes of losing State Territory ...... 311
245. Operation of Nature . ,»-.:> . . . . < -. . 312
246. Revolt . : . . . ' . . . .312
247. Dereliction 313
CHAPTER II
1 THE OPEN SEA
I. Rise of the Freedom of the Open Sea

248. Former Claims to Control over the Sea 315
249. Practical Expression of claims to Maritime Sovereignty . .317
250. Grotius's Attack on Maritime Sovereignty . . . .318
251. Gradual recognition of the Freedom of the Open Sea . .319
II. Conception of the Open Sea

252. Discrimination between Open Sea and Territorial Waters . 321
253. Clear Instances of Parts of the Open Sea v*v. * . . 322
III. The Freedom of the Open Sea
254- Meaning of the Term " Freedom of the Open Sea ". . . 323
255. Legal Provisions for the Open Sea . . . •» . •> ..•;' *••.-••' . 324
256. Freedom of the Open Sea and War . ! ., . , . = . ' , . 325
XXIV CONTENTS OF
SECT. PAGE
257. Navigation and ceremonials on the Open Sea * » 326
258. Claim of States to Maritime Flag . . . . . . 326
259. Rationale for the Freedom of the Open Sea . . . . 327
IV. Jurisdiction on the Open Sea

260. Jurisdiction on the Open Sea mainly connected with Flag . 329
261. Claim of Vessels to sail under a certain Flag .... 329
262. Ship Papers 331
263. Names of Vessels 332
264. Territorial Quality of Vessels on the Open Sea . . . 332
265. Safety of Traffic on the Open Sea 333
266. Powers of Men-of-war over Merchantmen of all Nations . . 335
267. How Verification of Flag is effected 337
268. How Visit is effected 337
269. How Search is effected 338
270. How Arrest is effected 338
27 1 • Shipwreck and Distress on the Open Sea . . . . . 339
V. Piracy
272. Conception of Piracy 340

273. Private Ships as Subjects of Piracy 341
274. Mutinous Crew and Passengers as Subjects of Piracy . . 343
275. Object of Piracy 344
276. Piracy, how effected 344
277. Where Piracy can be committed • • • . '.••'. 345
278. Jurisdiction over Pirates and their Punishment . . . 345
279. Pirata non mutat dominium ....... 346
280. Piracy according to Municipal Law . . . . . . 347
VI. Fisheries in the Open Sea

281. Fisheries in the Open Sea free to all Nations .... 348
282. Fisheries in the North Sea 349
283. Bumboats in the North Sea 351
284. Seal Fisheries in Behring Sea 351
285. Fisheries around the Faroe Islands and Iceland . . . 353
VII. Telegraph Cables in the Open Sea

286. Telegraph Cables in the Open Sea admitted . . . .353
287. International Protection of Submarine Telegraph Cables . . 354
VIII. Wireless Telegraphy on the Open Sea

287o. Radiotelegraphy between Ships and the Shore . . . 355
287&. Radiotelegraphy between Ships at Sea 356
IX. The Subsoil beneath the Sea Bed

287c. Five Rules concerning the Subsoil beneath the Sea Bed . 357
287d. The Proposed Channel Tunnel 359
THE FIRST VOLUME XXV
CHAPTER III
INDIVIDUALS
I. Position of Individuals in International Law

SECT. PAGE
288. Importance of Individuals to the Law of Nations ... • 362
289. Individuals never Subjects of the Law of Nations . . . 362
290. Individuals Objects of the Law of Nations .... 365
291. Nationality the Link between Individuals and the Law of
Nations '* « « 366
292. The Law of Nations and the Rights of Mankind . * . 367
II. Nationality
293. Conception of Nationality t .' 369

294. Function of Nationality . . . • — » • $'• 370
295. So-called Proteges and de facto Subjects . .-, . ,.;..,.-.. 371
296. Nationality and Emigration . . • * •> • = . • 373
III. Modes of Acquiring and Losing Nationality

297. Five Modes of Acquisition of Nationality . . . . 374
298. Acquisition of Nationality by Birth. . . - «. •. , .... . 375
299. Acquisition of Nationality through Naturalisation . . . 375
300. Acquisition of Nationality through Redintegration . . . 376
301. Acquisition of Nationality through Subjugation and Cession . 377
302. Seven Modes of losing Nationality . . . . . . 377
IV. Naturalisation in Especial
303. Conception and Importance of Naturalisation . , » «•.•-. 379

304.
305. Object of Naturalisation
Conditions of Naturalisation. .. - .,.".* •, ti*
.-.." , .* -. . >'. .: *., . 380
. ....... 380
306. Effect of Naturalisation upon previous Citizenship . . .381
307- Naturalisation in Great Britain . » . ... . . 382
V. Double and Absent Nationality

308. Possibility of Double and Absent Nationality . . . .383
309. How Double Nationality occurs 384
310. Position of Individuals with Double Nationality . . . 385
311. How Absent Nationality occurs 387
312. Position of Individuals destitute of Nationality . . . 387
313. Redress against Difficulties arising from Double and Absent
Nationality 388
VI. Reception of Aliens and Eight of Asylum

314- No Obligation to admit Aliens 390
315. Reception of Aliens under conditions 392
316. So-called Right of Asylum 392
VOL. I. 62
XXVi CONTENTS OF
VII. Position of Aliens after Reception

SECT. PAGE
317. Aliens subjected to Territorial Supremacy .... 393
318. Aliens in Eastern Countries 395
319. Aliens under the Protection of their Home State . . . 395
320. Protection to be afforded to Aliens' Persons and Property . . 397
321. How far Aliens can be treated according to Discretion . . 397
322. Departure from the Foreign Country 398
VIII. Expulsion of Aliens

323. Competence to expel Aliens 399
324. Just Causes of Expulsion of Aliens 400
325. Expulsion how effected 402
326. Reconduction in Contradistinction to Expulsion . . . 402
IX. Extradition
327. Extradition no legal duty . . 403
328. Extradition Treaties how arisen 404
329. Municipal Extradition Laws 405
330. Object of Extradition 407
331. Extraditable Crimes 408
332. Effectuation and Condition of Extradition .... 409
X. Principle of Non-Extradition of Political Criminals

333. How Non -extradition of Political Criminals became the Rule . 411
334- Difficulty concerning the Conception of Political Crime . . 414
335. The so-called Belgian Attentat Clause 416
336. The Russian Project of 1881 416
337. The Swiss Solution of the Problem in 1892 .... 417
338. Rationale for the Principle of Non-extradition of Political
Criminals 418
339. How to avoid Misapplication of the Principle of Non-extradition
of Political Criminals 420
340. Reactionary Extradition Treaties 422
PART III
ORGANS OF THE STATES FOR THEIR INTERNATIONAL
RELATIONS
CHAPTER I
HEADS OF STATES AND FOREIGN OFFICES
I. Position of Heads of States according to International Law
341. Necessity of a Head for every State 425
342. Recognition of Heads of States 425
343. Competence of Heads of States ...... 426
344. Heads of States Objects of the Law of Nations . . .427
345. Honours and Privileges of Heads of States . . . 428
THE FIRST VOLUME XXV11
II. Monarchs
SECT. PAGE
346. Sovereignty of Monarchs . 428
347. Consideration due to Monarchs at home 429
348. Consideration due to Monarchs abroad ..... 429
349. The Retinue of Monarchs abroad 431
350. Monarchs travelling incognito 431
351. Deposed and Abdicated Monarchs ...... 432
352. Regents . 432
353. Monarchs in the service or subjects of Foreign Powers . . 432
III. Presidents of Republics

354- Presidents not Sovereigns 433
355. Position of Presidents in general . .'*> •/„ ' • • • 434
356. Position of Presidents abroad . •••*''• ' • • • • 434
IV. Foreign Offices
357. Position of the Secretary for Foreign Affairs . . . .435
CHAPTER II
DIPLOMATIC ENVOYS
I. The Institution of Legation

358. Development of Legations ....... 437
359. Diplomacy 438
II. Right of Legation

360. Conception of Right of Legation ...... 440
361. What States possess the Right of Legation . . . .441
362. Right of Legation by whom exercised 442
III. Kinds and Classes of Diplomatic Envoys

363. Envoys Ceremonial and Political ...... 443
364. Classes of Diplomatic Envoys 443
365. Ambassadors ..-•-. 444
366. Ministers Plenipotentiary and Envoys Extraordinary . .445
367. Ministers Resident . . . . : .> ' '. , . . 445
368. Charges d' Affaires . *• , .->.,» . . . . 445
369. The Diplomatic Corps . . . . . . . .446
IV. Appointment of Diplomatic Envoys

370. Person and Qualification of the Envoy 446
371. Letter of Credence, Full Powers, Passports . .,.,'. . 447
372. Combined Legations . . . , ,,,, ....*-. . . 448
373. Appointment of several Envoys ,.,«*; .. » • . . 448
XXV111 CONTENTS OF
V. Reception of Diplomatic Envoys

SUCT. PAGE
374. Duty to receive Diplomatic Envoys . . . . . .449

375. Refusal to receive a certain Individual . . . . .450
376. Mode and Solemnity of Reception ...... 451
377- Reception of Envoys to Congresses and Conferences . . 452
VI. Functions of Diplomatic Envoys

378. On Diplomatic Functions in general ...... 453
379. Negotiation 453
380. Observation 454
381. Protection 454
382. Miscellaneous Functions 454
383. Envoys not to interfere in Internal Politics .... 465
VII. Position of Diplomatic Envoys

384. Diplomatic Envoys objects of International Law . . . 455
385. Privileges due to Diplomatic Envoys 456
VIII. Inviolability of Diplomatic Envoys

386. Protection due to Diplomatic Envoys 457
387. Exemption from Criminal Jurisdiction . . . . .458
388. Limitation of Inviolability 459
IX. Exterritoriality of Diplomatic Envoys

389. Reason and Fictional Character of Exterritoriality . . . 460
390. Immunity of Domicile . 461
391. Exemption from Criminal and Civil Jurisdiction . . . 464
392. Exemption from Subpoena as witness ..... 465
393. Exemption from Police 466
394. Exemption from Taxes and the like 467
395. Right of Chapel 467
396. Self -jurisdiction 468
X. Position of Diplomatic Envoys as regards Third States

397. Possible Cases „ 469
398. Envoy travelling through Territory of third State . . .469
399. Envoy found by Belligerent on occupied Enemy Territory . 471
400. Envoy interfering with affairs of a third State . . . 472
XI. The Retinue of Diplomatic Envoys

401. Different Classes of Members of Retinue 472
402. Privileges of Members of Legation 473
403. Privileges of Private Servants , 474,
404. Privileges of Family of Envoy 474
405. Privileges of Couriers of Envoy ... 475
THE FIRST VOLUME XXIX
XII. Termination of Diplomatic Mission

SECT. PAGE
406. Termination in contradistinction to Suspension . . . 476
407. Accomplishment of Object of Mission . .'.... . 476
408. Expiration of Letter of Credence .... . . 477
409. Recall 477
410. Promotion to a higher Class ....... 478
411. Delivery of Passports ..... '. . . 478
412. Request for Passports - . . . 478
413. Outbreak of War . . . . . . > ;. . .479
414- Constitutional Changes . . 479
415. Revolutionary Changes of Government ..... 479
416. Extinction of sending or receiving State ..... 480
417. Death of Envoy . . . 480
CHAPTER III
CONSULS
I. The Institution of Consuls

418. Development of the Institution of Consuls .... 482
419. General Character of Consuls 484
II. Consular Organisation

420. Different kinds of Consuls ,» ,.. ( • , f, (- . , . . . 485
421. Consular Districts . . >. <.; v. v< » • . - 485
422. Different classes of Consuls . 486
423. Consuls subordinate to Diplomatic Envoys .... 487
III. Appointment of Consuls
424. Qualification of Candidates . ... . ' . . 487

425.
426. No
WhatState
kindobliged to admit
of States Consuls Consuls
can appoint . . .. ; ' .. ;.. ' .. 488
488
427.
428. Mode of Appointment
Appointment of Consulsandincludes
of Admittance
Recognition .• .• ..'' ' .489
. 489
IV. Functions of Consuls

429. On Consular Functions in general . . . ,... , . 490
430. Fosterage of Commerce and Industry . . .,,..,.... 491
431. Supervision of Navigation . . . . f- ... . . 491
432. Protection '< . . 492
433. Notarial Functions . . . . . . ". . ". 492
V. Position and Privileges of Consuls
434. Position • > •'. - ^ ;J . 493

435. Consular Privileges . , . v< . * ' ; ' • '* '. . 494
XXX CONTENTS OP
VI. Termination of Consular Office

SECT. PAGE
436. Undoubted Causes of Termination 496
437. Doubtful Causes of Termination 496
438. Change in the Headship of States no cause of Termination . 496
VII. Consuls in non-Christian States

439. Position of Consuls in non -Christian States .... 497
440. Consular Jurisdiction in non-Christian States .... 498
441. International Courts in Egypt . . . . . . ;;. 498
442. Exceptional Character of Consuls in non-Christian States . 499
CHAPTER IV
MISCELLANEOUS AGENCIES
I. Armed Forces on Foreign Territory

443. Armed Forces State Organs 500
444. Occasions for Armed Forces abroad ...... 500
445. Position of Armed Forces abroad ...... 501
446. Case of McLeod 501
446a. The Casa Blanca incident 502
II. Men-of-war in Foreign Waters

447. Men-of-war State Organs 504
448. Proof of Character as Men-of-war 505
449. Occasions for Men-of-war abroad ...... 505
450. Position of Men-of-war in foreign waters ..... 506
451. Position of Crew when on Land abroad ..... 508
III. Agents without Diplomatic or Consular Character

452. Agents lacking diplomatic or consular character . . . 509
453. Public Political Agents . , . 509
454. Secret Political Agents 610
455. Spies
456. Commissaries . . . . . . . . ' '1. ..511
510
457- Bearers of Despatches . 511
IV. International Commissions
458. Permanent in Contradistinction to Temporary Commissions . 512
459. Commissions in the interest of Navigation . . . .513
460. Commissions in the interest of Sanitation . . . .515
461. Commissions in the interest of Foreign Creditors . . . 515
462. Permanent Commission concerning Sugar . . . . 615
V. International Offices
463. Character of International Offices 515
464. International Telegraph Offices .516
465. International Post Office <.. .... '. 516
THE FIRST VOLUME XXXI
SECT. PAGE
466. International Office of Weights and Measures . . . .516
467. International Office for the Protection of Works of Literature
and Art and of Industrial Property . . . . .516
467#. The Pan-American Union . . . . . . .517
468. Maritime Office at Zanzibar and Bureau Special at Brussels . 517
469. International Office of Customs Tariffs 517
470. Central Office of International Transports . . . .517
471. Permanent Office of the Sugar Convention . . . .517
47 la. Agricultural Institute 518
47 1&. International Health Office 518
VI. The International Court of Arbitration

472. Organisation of Court in General . . . . . .518
473. The Permanent Council 518
474. The International Bureau ....... 519
475. The Court of Arbitration 519
476. The Deciding Tribunal 520
VII. The International Prize Court and the proposed International

Court of Justice
476a. The International Prize Court 522
4766. The proposed International Court of Justice .... 524
PAET IV
INTERNATIONAL TRANSACTIONS
CHAPTER I
ON INTERNATIONAL TRANSACTIONS IN GENERAL
I. Negotiation
477- Conception of Negotiation ....... 529
478. Parties to Negotiation .' «" - . 529
479. Purpose of Negotiation : . .^.; . 530
480. Negotiations by whom conducted ...... 531
481. Form of Negotiation .531
482. End and Effect of Negotiation . ,_ ,.-•- ^ -v • • • • 532
II. Congresses and Conferences

483. Conception of Congresses and Conferences , . . -,,.-... . 533
484. Parties to Congresses and Conferences . • . ,. • • • 534
485. Procedure at Congresses and Conferences . * ». . . 535
III. Transactions besides Negotiation

486. Different kinds of Transaction . . . . .' . . 536
487. Declaration . . . ... . 536
XXX11 CONTENTS OF
SHOT.
488. Notification ..537

489. Protest . . 538
490. Renunciation 639
CHAPTER II
TREATIES
I. Character and Function of Treaties

491. Conception of Treaties 540
492. Different kinds of Treaties 540
493. Binding Force of Treaties 541
II. Parties to Treaties

494. The Treaty-making Power 543
495. Treaty -making Power exercised by Heads of States . . . 544
496. Minor Functionaries exercising Treaty-making Power . .545
497. Constitutional Restrictions . 545
498. Mutual Consent of the Contracting Parties .... 546
499. Freedom of Action of consenting Representatives . . . 547
500. Delusion and Error in Contracting Parties .... 547
III. Objects of Treaties

501. Objects in general of Treaties 548
502. Obligations of Contracting Parties only can be Object . .548
503. An Obligation inconsistent with other Obligations cannot be
an Object 549
604- Object must be physically possible • 549
505. Immoral Obligations 549
506. Illegal Obligations 550
IV. Form and Parts of Treaties

507. No necessary Form of Treaties ...... 650
608. Acts, Conventions, Declarations 661
609. Parts of Treaties 562
V. Ratification of Treaties
610. Conception and Function of Ratification 563
511. Rationale for the Institution of Ratification .... 554
512.
613. Ratification regularly,
Length of Time but not absolutely,
for Ratification ......necessary "."•'• . 555
554
514. Refusal of Ratification 656
615. Form of Ratification 557
616. Ratification by whom effected 658
617- Ratification cannot be partial and conditional . . ,« • 569
618. Effect of Ratification 561
THE FIRST VOLUME XXX111
VI. E/ect of Treaties

SECT. PAGE
519. Effect of Treaties upon Contracting Parties .... 561
520. Effect of Treaties upon the Subjects of the Parties . . . 562
521. Effect of Changes in Government upon Treaties . . . 562
522. Effect of Treaties upon Third States 563
VII. Means of Securing Performance of Treaties

523. What means have been in use ....... 565
524. Oaths ... . . . 565
525. Hostages 566
526. Pledge 566
527- Occupation of Territory 566
528. Guarantee 567
VIII. Participation of Third States in Treaties

529. Interest and Participation to be distinguished .... 567
530. Good Offices and Mediation 568
531. Intervention .......... 568
532. Accession ........... 568
533. Adhesion . 569
IX. Expiration and Dissolution of Treaties

534. Expiration and Dissolution in Contradistinction to Fulfilment . 570
535. Expiration through Expiration of Time ..... 570
536. Expiration through Resolutive Condition . . . . .571
537. Mutual Consent 571
538. Withdrawal by Notice 571
539. Vital Change of Circumstances 572
X. Voidance of Treaties
540. Grounds of Voidance 576
541. Extinction of one of the two Contracting Parties . . . 576
542. Impossibility of Execution ....... 577
543. Realisation of Purpose of Treaty other than by Fulfilment . 577
544. Extinction of such Object as was concerned in a Treaty . .577
XI. Cancellation of Treaties

545. Grounds of Cancellation . . . . --...«. ..,.r. ...... .- 578
546. Inconsistency with subsequent International Law . . . 578
547. Violation by one of the Contracting Parties .... 579
548. Subsequent Change of Status of one of the Contracting Parties 579
549. War . . . . .• .• •<;"•< "•; . . . . 680
XII. Renewal, Reconfirmation, and Redintegration of Treaties
550. Renewal of Treaties . - '. • ••••: :". ••'• '"-.'•' '• v M -V i> -. . 580
551. Reconfirmation . . . . . . . , •, s . . 581
552. Redintegration. . . . . . , .?•.'/. % .' . 581
XXXIV CONTENTS OF
XIII. Interpretation of Treaties

SECT. PAGE
553. Authentic Interpretation, and the Compromise Clause . . 682
554. Rules of Interpretation which recommend themselves . . 583
CHAPTER III
IMPORTANT GROUPS OF TREATIES
I. Important Law-making Treaties

555. Important Law-making Treaties a product of the Nineteenth
Century 587
556. Final Act of the Vienna Congress 588
557. Protocol of the Congress of Aix-la-Chapolle .... 688
658. Treaty of London of 1831 588
569. Declaration of Paris 588
660. Geneva Convention ......... 689
561. Treaty of London of 1867 . . . . . .689
662. Declaration of St. Petersburg 590
563. Treaty of Berlin of 1878 590
564. General Act of the Congo Conference ..... 590
565. Treaty of Constantinople of 1888 591
566. General Act of the Brussels Anti-Slavery Conference . .591
667. Two Declarations of the First Hague Peace Conference . .591
568. Treaty of Washington of 1901 .592
568a. Conventions and Declaration of the Second Hague Peace
Conference 592
5686. The Declaration of London 595
II. Alliances
569. Conception of Alliances ........ 595
670. Parties to Alliances 697
571. Different kinds of Alliances 597
572. Conditions of Alliances 598
573. Casus Fazderis 599
III. Treaties of Guarantee and of Protection

574. Conception and Objects of Guarantee Treaties . . . 699
575. Effect of Treaties of Guarantee 600
576. Effect of Collective Guarantee 601
576a. Pseudo-Guarantees 602
677. Treaties of Protection 604
IV. Commercial Treaties

578. Commercial Treaties in General 605
579. Meaning of Coasting-trade in Commercial Treaties . . . 606
680. Meaning of Most-favoured-nation Clause 610
V. Unions Concerning Common Non-Political Interests

681. Object of the Unions . 612
582. Post and Telegraphs ..613
THE FIRST VOLUME XXXV
SECT. PAGE
583. Transport and Communication 614
584. Copyright . . 615
585. Commerce and Industry . . . . . . . .616
586. Agriculture 617
587. Welfare of Working Classes 618
588. Weights, Measures, Coinage 619
589. Official Publications 620
590. Sanitation 620
591. Pharmacopoeia 622
592. Humanity 622
593. Preservation of Animal World 623
594. Private International Law 623
595. American Republics ......... 624
596. Science 625
INDEX . . .627
INTRODUCTION
FOUNDATION AND DEVELOPMENT
OF THE LAW OF NATIONS
VOL. I,
CHAPTER I
FOUNDATION OF THE LAW OF NATIONS
THE LAW OF NATIONS AS LAW
Hall, pp. 14-16— Maine, pp. 50-53— Lawrence, §§ 1-3, and Essays, pp. 1-36—
Phillimore, I. §§ 1-12— Twiss, I. §§ 104-5— Taylor, § 2— Moore, I. §§ 1-2
— Westlake,
46-55— I. pp.§§ 1-13—
Ullmann, Walker, §§History,
2-4— Heffter, I. §§ 1-8—inHalleck,
1-5— Holtzendorff 'l. pp.
Holtzendorff,
I. pp. 19-26— Nys, I. pp. 133-43— Rivier, I. § 1— Bonfils, Nos. 26-31—
Pradier-Fode're, I. Nos. 1-24— Me"rignhac, I. pp. 5-28— Martens, I. §§ 1-5
— Fiore, I. Nos. 186-208, and Code, Nos. 1-20— Higgins, "The Bind-
ing Force of International Law" (1910) — Pollock in The Law Quarterly
Review, XVIII. (1902), pp. 418-428— Scott in A.J. I. (1907), pp. 831-8C5—
Willoughby and Root in A.J. II. (1908), pp. 357-365 and 451-457.
§ 1. Law of Nations or International Law (Droit des Concep-

gens, Volkerrecht) is the name for the body of customary Law°ofthf
and conventional rules which are considered legally1 Nations-
binding by civilised States in their intercourse with
each other. Such part of these rules as is binding upon
all the civilised States without exception is called uni-
versal International Law,2 in contradistinction to par-
ticular International Law, which is binding on two or a
few States only. But it is also necessary to distinguish
general International Law. This name must be given
to the body of such rules as are binding upon a great
many States, including leading Powers. General Inter-
national Law, as, for instance, the Declaration of Paris
of 1856, has a tendency to become universal Inter-
national Law.
1 In contradistinction to mere 8 The best example of universal
usages and to rules of so-called Inter- International Law is the law con-
national Comity, see below §§ 9 and 19. nected with legation.
3
4 FOUNDATION OF THE LAW OF NATIONS
International Law in the meaning of the term as

used in modern times did not exist during antiquity
and the first part of the Middle Ages. It is in its origin
essentially a product of Christian civilisation, and began
gradually to grow from the second half of the Middle
Ages. But it owes its existence as a systematised
body of rules to the Dutch jurist and statesman Hugo
Grotius, whose work, " De Jure Belli ac Pacis libri III.,"
appeared in 1625 and became the foundation of all
later development.
The Law of Nations is a law for the intercourse of
States with one another, not a law for individuals. As,
however, there cannot be a sovereign authority above
the several sovereign States, the Law of Nations is a law
between, not above, the several States, and is, therefore,
since Bentham, also called " International Law."
Since the distinction of Bentham between Inter-
national Law public and private has been generally
accepted, it is necessary to emphasise that only the
so-called public International Law, which is identical
with the Law of Nations, is International Law, whereas
the so-called private International Law is not. The
latter concerns such matters as fall at the same time
under the jurisdiction of two or more different States.
And as the Municipal Laws of different States are
frequently in conflict with each other respecting such
matters, jurists belonging to different countries en-
deavour tofind a body of principles according to which
such conflicts can be avoided.
Legal § 2- Almost from the beginning of the science of the
STeilwof âw °^ Nations *ne question has been discussed whether
Nations the rules of International Law are legally binding.
Hobbes1 already and Pufendorf2 had answered the
question in the negative. And during the nineteenth
1 De Give, XIV. 4.
8 De Jure Naturae et Gentium, II. c. iii. § 22.
THE LAW OF NATIONS AS LAW
century Austin l and his followers take up the same

attitude. They define law as a body of rules for human
conduct set and enforced by a sovereign political autho-
rity. Ifindeed this definition of law be correct, the
Law of Nations cannot be called law. For Inter-
national Law is a body of rules governing the relations
of Sovereign States between one another. And there
is not and cannot be a sovereign political authority
above the Sovereign States which could enforce such
rules. However, this definition of law is not correct.
It covers only the written or statute law within a State,
that part of the Municipal Law which is expressly made
by statutes of Parliament in a constitutional State or
by some other sovereign authority in a non-constitu-
tional State. It does not cover that part of Municipal
Law which is termed unwritten or customary law.
There is, in fact, no community and no State in the
world which could exist with written law only. Every-
where there is customary law in existence besides the
written law. This customary law was never expressly
enacted by any law-giving body, or it would not be
merely customary law. Those who define law as rules
set and enforced by a sovereign political authority do
not deny the existence of customary law. But they
maintain that the customary law has the character of
law only through the indirect recognition on the part
of the State which is to be found in the fact that courts
of justice apply the customary in the same way as the
written law, and that the State does not prevent them
from doing so. This is, however, nothing else than a
fiction. Courts of justice having no law-giving power
could not recognise unwritten rules as law if these
rules were not law before that recognition, and States
recognise unwritten rules as law only because courts of
justice do so.
1 Lectures on Jurisprudence, VI.
Great Britain is behind it. That Parliament has law-

making authority is law itself, but unwritten and
customary law. Thus the very important fact comes to
light that all statute or written law is based on unwritten
law in so far as the power of Parliament to make Statute
Law is given to Parliament by unwritten law. It is the
common consent of the British people that Parliament
shall have the power of making rules which shall be
enforced by external power. But besides the statute
laws made by Parliament there exist and are constantly
growing other laws, unwritten or customary, which are
day by day recognised through courts of justice.
Definition § 5. On the basis of the results of these previous
Bssentiaf investigations we are now able to give a definition of
Sons of âw- We may say that law is a body of rules for human
Law. conduct within a community which by common consent of
th:,s community shall be enforced by external power.
The essential conditions of the existence of law are,
therefore, threefold. There must, first, be a com-
munity. There must, secondly, be a body of rules for
human conduct within that community. And there
must, thirdly, be a common consent of that community
that these rules shall be enforced by external power.
It is not an essential condition either that such rules
of conduct must be written rules, or that there should
be a law-making authority or a law-administering court
within the community concerned. And it is evident
that, if we find this definition of law correct, and accept
these three essential conditions of law, the existence of
law is not limited to the State community only, but is
to be found everywhere where there is a community.
The best example of the existence of law outside the
State is the law of the Koman Catholic Church, the so-
called Canon Law. This Church is an organised com-
munity whose members are dispersed over the whole
surface of the earth. They consider themselves bound
THE LAW OF NATIONS AS LAW 9
by the rules of the Canon Law, although there is no

sovereign political authority that sets and enforces
those rules, the Pope and the bishops and priests being
a religious authority only. But there is an external
power through which the rules of the Canon Law are ^ *
enforced — namely, the punishments of the Canon Law, ^
such as excommunication, refusal of sacraments, and
the like. And the rules of the Canon Law are in this -^ «£*
way enforced by common consent of the whole Eoman
Catholic community.
,
8 6.„But .. it. must be emphasised , that,. ifi there
.
is law
-
Law not
tobeiden-
to be iound in every community, law in tms meaning
must not be identified with the law of States, the so-
called Municipal Law,1 just as the conception of State
must not be identified with the conception of com-
munity. The conception of community is a wider one
than the conception of State. A State is a community,
but not every community is a State. Likewise the
conception of law pure and simple is a wider one than
that of Municipal Law. Municipal Law is law, but not
every law is Municipal Law, as, for instance, the Canon
Law is not. Municipal Law is a narrower conception
than law pure and simple. The body of rules which
is called the Law of Nations might, therefore, be law
in the strict sense of the term, although it might not
possess the characteristics of Municipal Law. To make
sure whether the Law of Nations is or is not law, we
have to inquire whether the three essential conditions
of the existence of law are to be found in the Law of
Nations.
§ 7. As the first condition is the existence of a com- The
munity, the question arises, whether an international of*
community exists whose law could be the Law of
Nations. Before this question can be answered, the
1 Throughout this work the term in contradistinction to International
" Municipal
in the sense ofLawnational
" is made use law
or State of Law.
conception of community must be denned. A com-

munity may be said to be the body of a number of
individuals more or less bound together through such
common interests as create a constant and manifold
intercourse between the single individuals. This defini-
tion of community covers not only a community of
individual men, but also a community of individual
communities such as individual States. A Confedera-
tion of States is a community of States. But is there
a universal international community of all individual
States in existence ? This question is decidedly to be
answered in the affirmative as far as the States of the
civilised world are concerned. Innumerable are the
interests which knit all the individual civilised States
together and which create constant intercourse between
these States as well as between their subjects. As the
civilised States are, with only a few exceptions, Christian
States, there are already religious ideas which wind a
band around them. There are, further, science and
art, which are by their nature to a great extent inter-
national, and which create a constant exchange of ideas
and opinions between the subjects of the several
States. Of the greatest importance are, however,
agriculture, industry, and trade. It is totally impossible
even for the largest empire to produce everything its
subjects want. Therefore, the productions of agricul-
ture and industry must be exchanged by the several
States, and it is for this reason that international
trade is an unequalled factor for the welfare of
every civilised State. Even in antiquity, when every
State tried to be a world in itself, States did not
and could not exist without some sort of international
trade. It is international trade which has created
navigation on the high seas and on the rivers flowing
through different States. It is, again, international
trade which has called into existence the nets of
railways which cover the continents, the international

postal and telegraphic arrangements, and the Trans-
atlantic telegraphic cables.1
The manifold interests which knit all the civilised
States together and create a constant intercourse be-
tween one another, have long since brought about the
necessity that these States should have one or more
official representatives living abroad. Thus we find
everywhere foreign envoys and consuls. They are the
agents who make possible the current stream of trans-
actions between the Governments of the different
States. A number of International Offices, Interna-
tional Bureaux, International Commissions have been
permanently appointed for the administration of in-
ternational business, a permanent Court of Arbitration
has been, and an International Prize Court will soon
be, established at the Hague. And from time to time
special international conferences and congresses of dele-
gates of the different States are convoked for discussing
and settling matters international. Though the indi-
vidual States are sovereign and independent of each
other, though there is no international Government
above the national ones, though there is no central
political authority to which the different States are
subjected, yet there is something mightier than all the
powerful separating factors : namely, the common inte- /
rests. And these common interests and the necessary
intercourse which serves these interests, unite the
separate States into an indivisible community. For
many hundreds of years this community has been called
" Family of Nations " or " Society of Nations."
§ 8. Thus the first essential condition for the exist- J
ence of law is a reality. The single States make alto- °.f Na;,
gether a body of States, a community of individual commu
1 See Fried, " Das Internationale and discussed which knit the civilised
Leben der Gegenwart" (1908), where world together,
the innumerable interests are grouped
nitywith States. But the second condition cannot be denied

Conduct, either. For hundreds of years more and more rules
have grown up for the conduct of the States between
each other. These rules are to a great extent customary
rules. But side by side with these customary and un-
written rules more and more written rules are daily
created by international agreements, such as the
Declaration of Paris of 1856, the Hague Rules concern-
ing land warfare of 1899 and 1907, and the like. The
so-called Law of Nations is nothing else than a body of
customary and conventional rules regulating the con-
duct of the individual States with each other. Just as
out of tribal communities which were in no way con-
nected with each other arose the State, so the Family
of Nations arose out of the different States which were
in no way connected with each other. But whereas
the State is a settled institution, firmly established and
completely organised, the Family of Nations is still in
the beginning of its development. A settled institution
and firmly established it certainly is, but it entirely
lacks at present any organisation whatever. Such an
organisation is, however, gradually growing into exist-
ence before our eyes. The permanent Court of Arbi-
tration created by the First Hague Peace Conference,
and the International Prize Court proposed by the
Second Hague Peace Conference, are the first small
traces of a future organisation. The next step forward
will be that the Hague Peace Conferences will meet
automatically within certain periods of time, without
being summoned by one of the Powers. A second step
forward will be the agreement on the part of the Powers
upon fixed rules of procedure for the future Hague
Peace Conferences. As soon as these two steps forward
are really made, the nucleus of an organisation of the
Family of Nations will be in existence, and out of this
nucleus will grow in time a more powerful organisation,
the ultimate characteristic features of which cannot at

present be foreseen.1
§ 9. But how do matters stand concerning the third External
essential condition for the existence of law ? Is there a
common consent of the community of States that the
rules of international conduct shall be enforced by
external power ? There cannot be the slightest doubt conduct.
that this question must be affirmatively answered,
although there is no central authority to enforce those
rules. The heads of the civilised States, their Govern-
ments, their Parliaments, and public opinion of the
whole of civilised humanity, agree and consent that the
body of rules of international conduct which is called
the Law of Nations shall be enforced by external power,
in contradistinction to rules of international morality
and courtesy, which are left to the consideration of the
conscience of nations. And in the necessary absence of
a central authority for the enforcement of the rules of
the Law of Nations, the States have to take the law
into their own hands. Self-help and intervention on
the part of other States which sympathise with the
wronged one are the means by which the rules of the
Law of Nations can be 2 and actually are enforced. It
is true that these means have many disadvantages,
but they are means which have the character of external
power. Compared with Municipal Law and the means
at disposal for its enforcement, the Law of Nations is
certainly the weaker of the two. A law is the stronger,
the more guarantees are given that it can and will be
enforced. Thus, the law of a State which is governed
by an uncorrupt Government and the courts of which
are not venal is stronger than the law of a State which
has a corrupt Government and venal judges. It is
inevitable that the Law of Nations must be a weaker
1 See Oppenheim, " Die Zukunft 2 See below, § 135, concerning

des Volkerrechts " (1911), passim. intervention by right.
law than Municipal Law, as there is not and cannot be

an international Government above the national ones
which could enforce the rules of International Law in
the same way as a national Government enforces the
rules of its Municipal Law. But a weak law is never-
theless still law, and the Law of Nations is by no means
so weak a law as it sometimes seems to be.1
Practice § 10. The fact is that theorists only are divided
Lawgof ses concerning the character of the Law of Nations as real
Nations as jaw> jn practice International Law is constantly recog-
nised as law. The Governments and Parliaments of
the different States are of opinion that they are legally,
not morally only, bound by the Law of Nations,
although they cannot be forced to go before a court in
case they are accused of having violated it. Likewise,
public opinion of all civilised States considers every
State legally bound to comply with the rules of the Law
of Nations, not taking notice of the opinion of those
theorists who maintain that the Law of Nations does
not bear the character of real law. And the several
States not only recognise the rules of International
Law as legally binding in innumerable treaties, but
emphasise every day the fact that there is a law be-
tween themselves. They moreover recognise this law
by their Municipal Laws ordering their officials, their
civil and criminal courts, and their subjects to take up
such an attitude as is in conformity with the duties
imposed upon their Sovereign by the Law of Nations.
If a violation of the Law of Nations occurs on the part
of an individual State, public opinion of the civilised
world, as well as the Governments of other States,
stigmatise such violation as a violation of law pure and
1 Those who deny to International cause and effect. Originally law was
Law the character of law because not a product of the State, but the
they identify the conception of law State was a product of law. The
in general with that of Municipal right of the State to make law is
Law and because they cannot see based upon the rule of law that the
any law outside the State, confound State is competent to make law.
BASIS OF THE LAW OF NATIONS 15
simple. And countless treaties concerning trade, navi-

gation, post, telegraph, copyright, extradition, and
many other objects exist between civilised States,
which treaties, resting entirely on the existence of a law
between the States, presuppose such a law, and con-
tribute bytheir very existence to its development and
growth. '
Violations of this law are certainly frequent. But
the offenders always try to prove that their acts do
not contain a violation, and that they have a right to
act as they do according to the Law of Nations, or at
least that no rule of the Law of Nations is against their
acts. Has a State ever confessed that it was going to
break the Law of Nations or that it ever did so ? The
fact is that States, in breaking the Law of Nations,
never deny its existence, but recognise its existence
through the endeavour to interpret the Law of Nations
in a way favourable to their act. And there is an
ever-growing tendency to bring disputed questions of
International Law as well as international differences
in general before international courts. The permanent
Court of Arbitration at the Hague established in 1899,
and the International Prize Court proposed at the
Hague according to a convention of 1907, are the first
promising fruits of this tendency.
II
BASIS OF THE LAW OF NATIONS
§ 11. If law is, as defined above (§5), a body of common

rules for human conduct within a community which by th^BaS
common consent of this community shall be enforced ofLaw-
through external power, common consent is the basis
of all law. What, now, does the term " common con-
sent "mean ? If it meant that all the individuals who
law than Municipal Law, as there is not and cannot be

an international Government above the national ones
which could enforce the rules of International Law in
the same way as a national Government enforces the
rules of its Municipal Law. But a weak law is never-
theless still law, and the Law of Nations is by no means
so weak a law as it sometimes seems to be.1
Practice § 10. The fact is that theorists only are divided
Lawgof S6S concerning the character of the Law of Nations as real
Nations as jaw> jn pracfcjce International Law is constantly recog-
nised as law. The Governments and Parliaments of
the different States are of opinion that they are legally,
not morally only, bound by the Law of Nations,
although they cannot be forced to go before a court in
case they are accused of having violated it. Likewise,
public opinion of all civilised States considers every
State legally bound to comply with the rules of the Law
of Nations, not taking notice of the opinion of those
theorists who maintain that the Law of Nations does
not bear the character of real law. And the several
States not only recognise the rules of International
Law as legally binding in innumerable treaties, but
emphasise every day the fact that there is a law be-
tween themselves. They moreover recognise this law
by their Municipal Laws ordering their officials, their
civil and criminal courts, and their subjects to take up
such an attitude as is in conformity with the duties
imposed upon their Sovereign by the Law of Nations.
If a violation of the Law of Nations occurs on the part
of an individual State, public opinion of the civilised
world, as well as the Governments of other States,
stigmatise such violation as a violation of law pure and
1 Those who deny to International cause and effect. Originally law was
Law the character of law because not a product of the State, but the
they identify the conception of law State was a product of law. The
in general with that of Municipal right of the State to make law is
Law and because they cannot see based upon the rule of law that the
any law outside the State, confound State is competent to make law.
simple. And countless treaties concerning trade, navi-

gation, post, telegraph, copyright, extradition, and
many other objects exist between civilised States,
which treaties, resting entirely on the existence of a law
between the States, presuppose such a law, and con-
tribute bytheir very existence to its development and
growth. '
Violations of this law are certainly frequent. But
the offenders always try to prove that their acts do
not contain a violation, and that they have a right to
act as they do according to the Law of Nations, or at
least that no rule of the Law of Nations is against their
acts. Has a State ever confessed that it was going to
break the Law of Nations or that it ever did so ? The
fact is that States, in breaking the Law of Nations,
never deny its existence, but recognise its existence
through the endeavour to interpret the Law of Nations
in a way favourable to their act. And there is an
ever-growing tendency to bring disputed questions of
International Law as well as international differences
in general before international courts. The permanent
Court of Arbitration at the Hague established in 1899,
and the International Prize Court proposed at the
Hague according to a convention of 1907, are the first
promising fruits of this tendency.
II
BASIS OF THE LAW OF NATIONS
§ 11. If law is, as denned above (§5), a body of Common

rules for human conduct within a community which by th^BaSs
common consent of this community shall be enforced ofLaw-
through external power, common consent is the basis
of all law. What, now, does the term " common con-
sent "mean ? If it meant that all the individuals who
are members of a community must at every moment

of their existence expressly consent to every point of
law, such common consent would never be a fact. The
individuals, who are the members of a community, are
successively born into it, grow into it together with
the growth of their intellect during adolescence, and die
away successively to make room for others. The com-
munity remains unaltered, although a constant change
takes place in its members. " Common consent " can
* therefore only mean the express or tacit consent of
such an overwhelming majority of the members that
those who dissent are of no importance whatever, and
disappear totally from the view of one who looks for the
will of the community as an entity in contradistinction
to the wills of its single members. The question as to
whether there be such a common consent in a special
case, is not a question of theory, but of fact only. It
is a matter of observation and appreciation, and not of
logical and mathematical decision, just as is the well-
known question, how many grains make a heap ?
Those legal rules which come down from ancestors to
their descendants remain law so long only as they are
supported by common consent of these descendants.
New rules can only become law if they find common
consent on the part of those who constitute the com-
munity at the time. It is for that reason that custom
is at the background of all law, whether written or
unwritten.
Common § 12. What has been stated with regard to law pure
of°thent an(^ simple applies also to the Law of Nations. How-
Family of ever, the community for which this Law of Nations is
t,h* Basis authoritative consists not of individual human beings,
national" but of individual States. And whereas in communities
Law. consisting of individual human beings there is a constant
and gradual change of the members through birth,
death, emigration, and immigration, the Family of
Nations is a community within which no such constant

change takes place, although now and then a member
disappears and a new member steps in. The members
of the Family of Nations are therefore not born into
that community and they do not grow into it. New
members are simply received into it through express or
tacit recognition. It is therefore necessary to scrutinise
more closely the common consent of the States which
is the basis of the Law of Nations.
The customary rules of this law have grown up by
common consent of the States — that is, the different
States have acted in such a manner as includes their
tacit consent to these rules. As far as the process of
the growth of a usage and its turning into a custom
can be traced back, customary rules of the Law of
Nations came into existence in the following way. The
intercourse of States with each other necessitated some
rules of international conduct. Single usages, there-
fore, gradually grew up, the different States acting in
the same or in a similar way when an occasion arose.
As some rules of international conduct were from the
end of the Middle Ages urgently wanted, the theory of
the Law of Nations prepared the ground for their
growth by constructing certain rules on the basis of
religious, moral, rational, and historical reflections.
Hugo Grotius's work, " De Jure Belli ac Pacis libri III."
(1625), offered a systematised body of rules, which
recommended themselves so much to the needs and
wants of the time that they became the basis of the
development following. Without the conviction of the
Governments and of public opinion of the civilised
States that there ought to be legally binding rules for
international conduct, on the one hand, and, on the
other hand, without the pressure exercised upon the
States by their interests and the necessity for the
growth of such rules, the latter would never have
VOL. I. B
18 FOUNDATION OF THE LAW OF NATTONS
grown up. When afterwards, especially in the nine-

teenth century, it became apparent that customs and
usages alone were not sufficient or not sufficiently clear,
new rules were created through law-making treaties
being concluded which laid down rules for future inter-
national conduct. Thus conventional rules gradually
grew up side by side with customary rules.
New States which came into existence and were
through express or tacit recognition admitted into the
Family of Nations thereby consented to the body of
rules for international conduct in force at the time of
their admittance. It is therefore not necessary to prove
for every single rule of International Law that every
single member of the Family of Nations consented to
it. No single State can say on its admittance into the
Family of Nations that it desires to be subjected to
such and such a rule of International Law, and not to
others. The admittance includes the duty to submit
to all the rules in force, with the sole exception of those
which, such as the rules of the Geneva Convention
for instance, are specially stipulated for such States
only as have concluded, or later on acceded to,
a certain international treaty creating the rules
concerned.
On the other hand, no State which is a member of
the Family of Nations can at some time or another
declare that it will in future no longer submit to a
certain recognised rule of the Law of Nations. The
body of the rules of this law can be altered by common
consent only, not by a unilateral declaration on the
part of one State. This applies not only to customary
rules, but also to such conventional rules as have been
called into existence through a law-making treaty for
the purpose of creating a permanent mode of future
international conduct without a right of the signatory
powers to give notice of withdrawal. It would, for
instance, be a violation of International Law on the

part of a signatory Power of the Declaration of Paris
of 1856 to declare that it would cease to be a party.
But it must be emphasised that this does not apply to
such conventional rules as are stipulated by a law-
making treaty which expressly reserves the right to the
signatory Powers to give notice.
§ 13. Since the Law of Nations is based on the states the
common consent of individual States, and not of indi- Of tie0 s
vidual human beings, States solely and exclusively are
the subjects of International Law. This means that
the Law of Nations is a law for the international conduct
of States, and not of their citizens. Subjects of the
rights and duties arising from the Law of Nations are
States solely and exclusively. An individual human
being, such as a king or an ambassador for example, is
never directly a subject of International Law. There- \
fore, all rights which might necessarily have to be
granted to an individual human being according to the
Law of Nations are not international rights, but rights
granted by Municipal Law in accordance with a duty
imposed upon the respective State by International
Law. Likewise, all duties which might necessarily have
to be imposed upon individual human beings according
to the Law of Nations are not international duties, but
duties imposed by Municipal Law in accordance with
a right granted to or a duty imposed upon the re-
spective State by International Law. Thus the privi-
leges of an ambassador are granted to him by the
Municipal Law of the State to which he is accredited,
but such State has the duty to grant these privileges
according to International Law. Thus, further, the
duties incumbent upon officials and subjects of neutral
States in time of war are imposed upon them by the
Municipal Law of their home States, but these States
have, according to International Law, the duty of
imposing the respective duties upon their officials and

citizens.1
Equality § 14. Since the Law of Nations is based on the
common consent of States as sovereign communities,
the member States of the Family of Nations are equal
national to each other as subjects of International Law. States
are by their nature certainly not equal as regards
power, extent, constitution, and the like. But as
members of the community of nations they are equals,
whatever differences between them may otherwise exist.
This is a consequence of their sovereignty and of the
fact that the Law of Nations is a law between, not
above, the States.2
Ill
SOURCES OF THE LAW OF NATIONS
Hall, pp. 5-14— Maine, pp. 1-25— Lawrence, §§ 61-66 — Phillimore, I.

§§ 17-33— Twiss, I. §§ 82-103— Taylor, §§ 30-36— Westlake, I. pp. 14-19
— Wheaton, § 15— Halleck, I. pp. 55-64— Ullmann, §§ 8-9— Heffter, § 3—
Holtzendorff in Holtzendorff, I. pp. 79-158— Eivier, I. § 2— Nys, I. pp.
144-165— Bonfils, Nos. 45-63— Despagnet, Nos. 58-63— Pradier-Foddre,
I. Nos. 24-35— Merignhac, I. pp. 79-113— Martens, I. § 43— Fiore, I. Nos.
224-238— Calvo, I. §§ 27-38— Bergbohm, " Staatsvertrage und Gesetze
als Quellen des Volkerrechts " (1877)— Jellinek, "Die rechtliche Natur
der Staatsvertrage" (1880) — Cavaglieri, "La consuetudine giuridica
internazionale " (1907).
Source in § ^' The different writers on the Law of Nations

tinctionto (^sa£ree widely with regard to kinds and numbers of
Cause. sources of this law. The fact is that the term " source
of law " is made use of in different meanings by the
1 The importance of the fact that des Internationalen Rechts " (1899),
subjects of the Law of Nations are passim; Rehm in Z.V.I. (1907), p. 53;
States exclusively is so great that I and Diena in R.G. XVI. pp. 57-76.
consider it necessary to emphasise 2 See below, §§ 115-116, where the
it again and again throughout this legal equality of States in contradis-
work. See, for instance, below, tinction to their political inequality
§§ 289, 344, 384. It should, however, is discussed, and where it will also
already be mentioned here that this be shown that not-full Sovereign
assertion is even nowadays st.ill States are not equals of full-Sovereign
sometimes contradicted ; see, for in- States.
stance, Kaufmann, " Die Rechtskraft
SOURCES OF THE LAW OF NATIONS 21
different writers on International Law, as on law in

general. It seems to me that most writers confound
the conception of " source " with that of " cause," and
through this mistake come to a standpoint from which
certain factors which influence the growth of Inter-
national Law appear as sources of rules of the Law of
Nations. This mistake can be avoided by going back
to the meaning of the term " source " in general.
Source means a spring or well, and has to be defined
as the rising from the ground of a stream of water.
When we see a stream of water and want to know
whence it comes, we follow the stream upwards until
we come to the spot where it rises naturally from the
ground. On that spot, we say, is the source of the
stream of water. We know very well that this source
is not the cause of the existence of the stream of water.
Source signifies only the natural rising of water from a
certain spot of the ground, whatever natural causes
there may be for that rising. If we apply the concep-
tion of source in this meaning to the term " source of
law," the confusion of source with cause cannot arise.
Just as we see streams of water running over the
surface of the earth, so we see, as it were, streams of
rules running over the area of law. And if we want to
know whence these rules come, we have to follow these
streams upwards until we come to their beginning.
Where we find that such rules rise into existence, there
is the source of them. Of course, rules of law do not
rise from a spot on the ground as water does ; they
rise from facts in the historical development of a com-
munity. Thus in Great Britain a good many rules
of law rise every year from Acts of Parliament.
" Source of Law " is therefore the name for an historical
fact out of which rules of conduct rise into existence
and legal force.
§ 16. As the basis of the Law of Nations is the sources of
inter- common consent of the member States of the Family

Law°na of Nations, it is evident that there must exist, and can
only exist, as many sources of International Law as
there are facts through which such common consent
can possibly come into existence. Of such facts there
are only two. A State, just as an individual, may give
its consent either directly by an express declaration or
tacitly by conduct which it would not follow in case
it did not consent. The sources of International Law
are therefore twofold — namely : (1) express consent,
which is given when States conclude a treaty stipu-
lating certain rules for the future international conduct
of the parties ; (2) tacit consent, which is given through
States having adopted the custom of submitting to
certain rules of international conduct. Treaties and
custom are, therefore, exclusively the sources of the
Law of Nations.
custom in § 17. Custom is the older and the original source of
distinc- International Law in particular as well as of law in
u°a*e general- Custom must not be confounded with usage.
In everyday life and language both terms are used
synonymously, but in the language of the jurist they
have two distinctly different meanings. Jurists speak
of a custom, when a clear and continuous habit of
doing certain actions has grown up under the aegis of
the conviction that these actions are legally necessary
or legally right. On the other hand, jurists speak of a
usage, when a habit of doing certain actions has grown
up without there being the conviction of their legal
character. Thus the term " custom " is in juristic
language a narrower conception than the term " usage/'
as a given course of conduct may be usual without being
customary. Certain conduct of States concerning their
international relations may therefore be usual without
being the outcome of customary International Law.
As usages have a tendency to become custom, the
SOUECES OF THE LAW OF NATIONS 23
question presents itself, at what time a usage turns

into a custom. This question is one of fact, not of
theory. All that theory can point out is this : Wherever
' and as soon as a frequently adopted international con-
duct of States is considered legally necessary or legally
right, the rule, which may be abstracted from such
conduct, is a rule of customary International Law.
§ 18. Treaties are the second source of International Treaties
Law, and a source which has of late become of the of
greatest importance. As treaties may be concluded for
innumerable purposes,1 it is necessary to emphasise that
* such treaties only are a source of International Law as
either stipulate new rules for future international con-
duct or confirm, define, or abolish existing customary
or conventional rules. Such treaties must be called
law-making treaties. Since the Family of Nations is not
a State-like community, there is no central authority
which could make law for it in a similar way as
Parliaments make law by statutes within the States.
The only way in which International Law can be made
by a deliberate act, in contradistinction to custom, is
that the members of the Family of Nations conclude
treaties in which certain rules for their future conduct
are stipulated. Of course, such law-making treaties
create law for the contracting parties solely. Their
law is universal International Law then only, when all
the members of the Family of Nations are parties to
them. Many law-making treaties are concluded by a
few States only, so that the law which they create is
particular International Law. On the other hand,
there have been many law-making treaties concluded
which contain general International Law, because the
majority of States, including leading Powers, are parties
to them. General International Law has a tendency
to become universal because such States as hitherto did
1 See below, § 492.
not consent to it will in future either expressly give

their consent or recognise the respective rules tacitly
through custom.1 But it must be emphasised that,
whereas custom is the original source of International
Law, treaties are a source the power of which derives
from custom. For the fact that treaties can stipulate
rules of international conduct at all is based on the
customary rule of the Law of Nations, that treaties are
binding upon the contracting parties.2
Factors § 19. Thus custom and treaties are the two exclusive
Sngthe sources of the Law of Nations. When writers on
Sterth°f Intemational Law frequently enumerate other sources
national besides custom and treaties, they confound the term
" source " with that of " cause " by calling sources of
International Law such factors as influence the gradual
growth of new rules of International Law without,
however, being the historical facts from which these
rules receive their legal force. Important factors of
this kind are : Opinions of famous writers 3 on Inter-
national Law, decisions of prize courts, arbitral awards,4
instructions issued by the different States for the
guidance of their diplomatic and other organs, State
Papers concerning foreign politics, certain Municipal
Laws, decisions of Municipal Courts.5 All these and
other factors may influence the growth of International
Law either by creating usages which gradually turn
into custom, or by inducing the members of the Family
of Nations to conclude such treaties as stipulate legal
rules for future international conduct.
A factor of a special kind which also influences the
growth of International Law is the so-called Comity
(Comitas Gentium, Convenance et Courtoisie Internationale,
1 Law-making treaties of world- « See Oppenheim in A.J. II. (1908),
wide importance are enumerated pp. 341-344.
below, §§ 556-568b. « See Oppenheim in A.J. II. (1908),
• See below, § 493. pp. 336-341.
3 See Oppenheim in A.J. II. (1908),
pp. 344-34*.
INTERNATIONAL AND MUNICIPAL LAW 25
Staatengunst) . In their intercourse with one another,

States do observe not only legally binding rules and
such rules as have the character of usages, but also
rules of politeness, convenience, and goodwill. Such
rules of international conduct are not rules of law, but
of comity. The Comity of Nations is certainly not a
source of International Law, as it is distinctly the
contrast to the Law of Nations. But there can be no
doubt that many a rule which formerly was a rule of
International Comity only is nowadays a rule of Inter-
national Law. And it is certainly to be expected that
this development will go on in future also, and that
thereby many a rule of present International Comity
will in future become one of International Law.1
Not to be confounded with the rules of Comity are
the rules of morality which ought to apply to the
intercourse of States as much as to the intercourse of
individuals.
IV
RE LATIONS BETWEEN INTERNATIONAL AND

MUNICIPAL LAW
Holtzendorff in Holtzendorff, I. pp. 49-53, 117-120— Nys, I. pp. 185-189 —

Taylor, § 103— Holland, Studies, pp. 176-200— Kaufmann, "Die
Rechtskraft des internationalen Rechts" (1899) — Triepel, "Volkerrecht
und Landesrecht " (1899) — Anzilotti, " II diritto internazionale nei
giudizi interni" (1905)— Kohler in Z.V. II. (1908), pp. 209-230.
§ 20. The Law of Nations and the Municipal Law Essential

of the single States are essentially different from each
other. They differ, first, as regards their sources. inter-
Sources of Municipal Law are custom grown up within and* Muni-
the boundaries of the respective State and statutes G1PalLaw-
enacted by the law-giving authority. Sources of Inter-
national Law are custom grown up within the Family
1 The matter is ably discussed in Stoerk, "Volkerrecht und Volker-
courtoisie " (1908).
of Nations and law-making treaties concluded by the

members of that family.
The Law of Nations and Municipal Law differ,
secondly, regarding the relations they regulate. Muni-
cipal Law regulates relations between the individuals
under the sway of the respective State and the relations
between this State and the respective individuals.
International Law, on the other hand, regulates rela-
tions between the member States of the Family of
Nations.
The Law of Nations and Municipal Law differ,
thirdly, with regard to the substance of their law :
whereas Municipal Law is a law of a Sovereign over
individuals subjected to his sway, the Law of Nations
is a law not above, but between Sovereign States, and
therefore a weaker law.1
Law of § 21. If the Law of Nations and Municipal Law
^êi as demonstrated, the Law of Nations can neither
as a body nor in parts be per se a part of Municipal
Law. Just as Municipal Law lacks the power of alter-
ing or creating rules of International Law, so the latter
lacks absolutely the power of altering or creating rules
of Municipal Law. If, according to the Municipal Law
of an individual State, the Law of Nations as a body
or in parts is considered the law of the land, this can
only be so either by municipal custom or by statute,
and then the respective rules of the Law of Nations
have by adoption2 become at the same time rules of
Municipal Law. Wherever and whenever such total or
partial adoption has not taken place, municipal courts
cannot be considered to be bound by International
1 See above, § 9. (1908), pp. 852-865. As regards Great
2 This has been done by the United Britain, see Blackstone, IV. ch. 5,
States. See The Nereide, 9 Cranch, and Westlake in The Law Quarterly
388 ; United States ?;. Smith, 5 Review, XXII. (1906), pp. 14-2G ; see
Wheaton, 153; The Scotia, 14 also the case of the West Rand
Wallace, 170 ; The Paquette Habana, Central Mining Co. ». The King
175 United States, 677. See also (1905), 2 K. B. 391.
Taylor, § 103, and Scott in A.J.I.
Law, because it has, per se, no power over municipal

courts.1 And if it happens that a rule of Municipal
Law is in indubitable conflict with a rule of the Law
of Nations, municipal courts must apply the former.
If, on the other hand, a rule of the Law of Nations
regulates a fact without conflicting with, but without
expressly or tacitly having been adopted by Municipal
Law, municipal courts cannot apply such rule of the
Law of Nations.
§ 22. If Municipal Courts cannot apply unadopted certain
rules of the Law of Nations, and must apply even such Municipal
rules of Municipal Law as conflict with the Law of ^Stated
Nations, it is evident that the several States, in order or inter-
to fulfil their international obligations, are compelled
to possess certain rules, and are prevented from having
certain other rules as part of their Municipal Law. It
is not necessary to enumerate all the rules of Municipal
Law which a State must possess, and all those rules it
is prevented from having. It suffices to give some
illustrative examples. Thus, on the one hand, the
Municipal Law of every State, for instance, is com-
pelled to possess rules granting the necessary privileges
to foreign diplomatic envoys, protecting the life and
liberty of foreign citizens residing on its territory,
threatening punishment for certain acts committed on
its territory in violation of a foreign State. On the
other hand, the Municipal Law of every State is pre-
vented by the Law of Nations from having rules, for
instance, conflicting with the freedom of the high seas,
or prohibiting the innocent passage of foreign mer-
chantmen through its maritime belt, or refusing justice
to foreign residents with regard to injuries committed
1 This ought to be generally recog- des einzelnen titaates nicht unterworfen

nised, but, in fact, is not ; says, for in- ist und von den Ricktern oline weiteres
stance,KohlerinZ.V.IL(1908),p.210: respectirt werden muss: das Volker-
— " . . . das Volkerrecht ist ein uber- recht steht uber dem staatlichen Recht."
staatliches Recht, das der Gesetzgebuny
on its territory to their lives, liberty, and property by

its own citizens. If a State does nevertheless possess
such rules of Municipal Law as it is prevented from
having by the Law of Nations, or if it does not possess
such Municipal rules as it is compelled to have by the
Law of Nations, it violates an international legal duty,
but its courts l cannot by themselves alter the Muni-
cipal Law to meet the requirements of the Law of
Nations.
Presump- § 23. However, although Municipal Courts must
against aP?V Municipal Law even if conflicting with the Law
between °^ Nations, there is a presumption against the exist-
inter- ence of such a conflict. As the Law of Nations is based
upon the common consent of the different States, it is
improDaDie that a civilised State would intentionally
enact a rule conflicting with the Law of Nations. A
part of Municipal Law, which ostensibly seems to con-
flict with the Law of Nations, must, therefore, if pos-
sible, always be so interpreted as essentially not con-
taining such conflict.
§ 24. In case of a gap in the statutes of a civilised
Existence State regarding certain rules necessitated by the Law
°^ Nations, such rules ought to be presumed by the
Municipal Courts to have been tacitly adopted by such Muni-
cipal Law. It may be taken for granted that a State
which is a member of the Family of Nations does not
intentionally want its Municipal Law to be deficient in
such rules. If, for instance, the Municipal Law of a
State does not by a statute grant the necessary privi-
leges to diplomatic envoys, the courts ought to presume
that such privileges are tacitly granted.
Presum- § 25. There is no doubt that a State need not make
use °f a^ the rights it has by the Law of Nations, and
, conse<luently> every State can by its laws ex-
Municipal 1 This became quite apparent in the Court had to apply British
the Moray Firth case (Mortennen v. Municipal Law.
Peters)— see below, § 192— in which
pressly renounce the whole or partial use of such rights, Rules in

provided always it is ready to fulfil such duties, if any, °0°rmity
as are connected with these rights. However, when no J^J.
. Kignts
such renunciation has taken place, Municipal Courts granted
ought, in case the interests of justice demand it, to Law of
presume that their Sovereign has tacitly consented to Natlons<
make use of such rights. If, for instance, the Muni-
cipal Law of a State does not by a statute extend its
jurisdiction over its maritime belt, its courts ought to
presume that, since by the Law of Nations the juris-
diction of a State does extend over its maritime belt,
their Sovereign has tacitly consented to that wider
range of its jurisdiction.
A remarkable case illustrating this happened in this
country in 1876. The German vessel Franconia, while
passing through the British maritime belt within three
miles of Dover, negligently ran into the British vessel
Strathclyde, and sank her. As a passenger on board the
latter was thereby drowned, the commander of the
Franconia, the German Keyn, was indicted at the
Central Criminal Court and found guilty of man-
slaughter. The Court for Crown Cases Reserved, how-
ever, to which the Central Criminal Court referred the
question of jurisdiction, held by a majority of one
judge that, according to the law of the land, English
courts had no jurisdiction over crimes committed in
the English maritime belt. Keyn was therefore not
punished.1 To provide for future cases of like kind,
Parliament passed, in 1878, the " Territorial Waters
Jurisdiction Act." 2
1 L.R. 2 Ex. Div. 63. See Philli- littoral State has jurisdiction over
more, I. § 198 B ; Maine, pp. 39-45. foreign vessels that merely pass
See also below, § 189, where the through its maritime belt,
controversy is discussed whether a 2 41 and 42 Viet. c. 73.
DOMINION OF THE LAW OF NATIONS
Lawrence, § 44— Phillimore, I. §§ 27-33— Twiss, I. § 62— Taylor, §§ 61-64—

Westlake, I. p. 40— Bluntschli, §§ 1-16— Heffter, § 7— Holtzendorff in
Holtzendorff, I. pp. 13-18 — Nys, I. pp. 116-132— Rivier, I. § 1— Bonfils,
Nos. 40-45— Despagnet, Nos. 51-53— Martens, I. § 41 — Fiore, Code, Nos.
38-43— Ullmann, § 10— NippoldinZ.V. II. (1908), pp. 441-443— Cavaglieri
in R.G. XVIII. (1911), pp. 259-292.
Range of § 26. Dominion of the Law of Nations is the name

of inter- given to the area within which International Law is
Law°con- applicable — that is, those States between which Inter-
troversiai. national Law finds validity. The range of the dominion
of the Law of Nations is controversial, two extreme
opinions concerning this dominion being opposed. Some
publicists * maintain that the dominion of the Law of
Nations extends as far as humanity itself, that every
State, whether Christian or non-Christian, civilised or
uncivilised, is a subject of International Law. On the
other hand, several jurists 2 teach that the dominion of
the Law of Nations extends only as far as Christian
civilisation, and that Christian States only are subjects
of International Law. Neither of these opinions would
seem to be in conformity with the facts of the present
international life and the basis of the Law of Nations.
There is no doubt that the Law of Nations is a product
of Christian civilisation. It originally arose between
the States of Christendom only, and for hundreds of
years was confined to these States. Between Christian
and Mohammedan nations a condition of perpetual
enmity prevailed in former centuries. And no constant
intercourse existed in former times between Christian
and Buddhistic States. But from about the beginning
of the nineteenth century matters gradually changed.
A condition of perpetual enmity between whole groups
1 See, for instance, Bluntschli, § 8, 2 See, for instance, Martens, § 41.
and Fiore, Code, No. 38.
DOMINION OF THE LAW OF NATIONS 31
of nations exists no longer either in theory or in prac-

tice. And although there is still a broad and deep
gulf between Christian civilisation and others, many
interests, which knit Christian States together, knit
likewise some non-Christian and Christian States.
§ 27. Thus the membership of the Family of Nations
has of late necessarily been increased, and the range of tions of
the dominion of the Law of Nations has extended 8hi0ft
beyond its original limits. This extension has taken
place in conformity with the basis of the Law of
Nations. As this basis is the common consent of the
civilised States, there are three conditions for the ad-
mission ofnew members into the circle of the Family
of Nations. A State to be admitted must, first, be a
civilised State which is in constant intercourse with
members of the Family of Nations. Such State must,
secondly, expressly or tacitly consent to be bound for
its future international conduct by the rules of
International Law. And, thirdly, those States which
have hitherto formed the Family of Nations must
expressly or tacitly consent to the reception of the
new member.
The last two conditions are so obvious that they
need no comment. Regarding the first condition, how-
ever, it must be emphasised that not particularly
Christian civilisation, but civilisation of such kind only
is conditioned as to enable the State concerned and its
subjects to understand and to act in conformity with
the principles of the Law of Nations. These principles
cannot be applied to a State which is not able to apply
them on its own part to other States. On the other
hand, they can well be applied to a State which is able
and willing to apply them to other States, provided a
constant intercourse has grown up between it and other
States. The fact is that the Christian States have been
of late compelled by pressing circumstances to receive
several non-Christian States into the community of

States which are subjects of International Law.
Present / § 28. The present range of the dominion of Inter-
Dominion national Law is a product of historical development
Law^f within which epochs are distinguishable marked by
Nations, successive entrances of various States into the Family
of Nations.
(1) The old Christian States of Western Europe are
the original members of the Family of Nations, because
the Law of Nations grew up gradually between them
through custom and treaties. Whenever afterwards a
new Christian State made its appearance in Europe, it
was received into the charmed circle by the old members
of the Family of Nations. It is for this reason that
this law was in former times frequently called " Euro-
pean Law of Nations." But this name has nowadays
historical value only, as it has been changed into " Law
of Nations," or " International Law " pure and simple.
(2) The next group of States which entered into
the Family of Nations is the body of Christian States
which grew up outside Europe. All the American l
States which arose out of colonies of European States
belong to this group. And it must be emphasised that
the United States of America have largely contributed
to the growth of the rules of International Law. The
two Christian Negro Republics of Liberia in West
Africa and of Haiti on the island of San Domingo
belong to this group.
(3) With the reception of the Turkish Empire into
the Family of Nations International Law ceased to be
a law between Christian States solely. This reception
has expressly taken place through Article 7 of the
Peace Treaty of Paris of 1856, in which the five Great
1 But it ought not to be maintained however, Alvarez, " Le Droit Inter-
that there is — in contradistinction to national Amdricain " (1910), and again
the European— an American Inter- Alvarez in A.J. III. (1909), pp. 2G9-
national Law in existence ; see, 363.
DOMINION OF THE LAW OF NATIONS 33
European Powers of the time, namely, France, Austria,

England, Prussia, and Russia, and besides those
Sardinia, the nucleus of the future Great Power Italy,
expressly " declarent la Sublime Porte admise a parti-
ciper aux avantages du droit public et du concert
europeens." Since that time Turkey has on the whole
endeavoured
formity with inthetime
rulesof ofpeace apd war toLaw,
International |yt and
in con-
she *^
t I
TxalCoirWe ôWeTvKn3ê?n^7reated l accordingly by

the Christian States. No general congress has taken
place since 1856 to which Turkey has not been invited
to send her delegates.
(4) Another non-Christian member of the Family of
Nations is Japan. A generation ago one might have
doubted whether Japan was a real and full member
of that family, but since the end of the nineteenth
century no doubt is any longer justified. Through
marvellous efforts, Japan has become not only a modern
State, but an influential Power. Since her war with
China in 1895, she must be considered one of the Great
Powers that lead the Family of Nations.
(5) The position of such States as Persia, Siam,
China, Morocco, Abyssinia, and the like, is doubtful.
These States are certainly civilised States, and Abyssinia
is even a Christian State. However, their civilisation
has not yet reached that condition which is necessary
to enable their Governments and their population in
every respect to understand and to carry out the com-
mand of the rules of International Law. On the other
hand, international intercourse has widely arisen be-
tween these States and the States of the so-called
1 There is no doubt that Turkey, in of the Western States. It is for this

spite of having been received into reason that the so-called Capitulations
the Family
less hithertoof been
Nations,
in anhas anomalous
neverthe- anomalies
are still instillforce and that
prevail, but other
4ttM| ^ lOlf »|S\' ât)
|
position as a member of that family, disappearance is only a question of
owing to the fact that her civilisation time,
has not yet reached the level of that
VOL. I. Ck
Western civilisation. Many treaties have been con-

cluded with them, and there is full diplomatic inter-
course between them and the Western States. China,
Persia, and Siam have even taken part in the Hague
Peace Conferences. All of them make efforts to edu-
cate their populations, to introduce modern institutions,
and thereby to raise their civilisation to the level of
that of the Western. They will certainly succeed in this
respect in the near future. But as yet they have not
accomplished this task, and consequently they are not
yet able to be received into the Family of Nations as
full members. Although they are, as will be shown
below (§ 103), for some parts within the circle of the
Family of Nations, they remain for other parts outside.
But the example of Japan can show them that it de-
pends entirely upon their own iefe^fcs to be received
as full members into that family.
(6) It must be mentioned that a State of quite
a unique character, the former Congo Free State,1
was, since the Berlin Conference of 1884-1885, a
member of the Family of Nations. But it lost its
membership in 1908 when it merged in Belgium by
cession.
Treat-
ment of
§ 29. The Law of Nations as a law between States
States based on the common consent of the members of the
outside
the Family of Nations naturally does not contain any rules
Family of
Nations. concerning the intercourse with and treatment of such
States as are outside that circle. That this intercourse
and treatment ought to be regulated by the principles
of Christian morality is obvious. But actually a prac-
tice frequently prevails which is not only contrary to
Christian morality, but arbitrary and barbarous. Be
that as it may, it is discretion, and not International
Law, according to which the members of the Family
of Nations deal with such States as still remain out-
1 See below, §101.
CODIFICATION OF THE LAW OF NATIONS 35
side that family. But the United States of America

apply, as far as possible, the rules of International Law
to their relations with the Red Indians.
VI
CODIFICATION OF THE LAW OF NATIONS
Holtzendorff in Holtzendorff, I. pp. 136-152 — Ullmann, § 11 — Despagnet,

Nos. 67-68— Bonfils, Nos. 1713-1727— Merignhac, I. pp. 26-28— Nys, I.
pp. 166-183— Rivier, I. § 2— Fiore, I. Nos. 124-127— Martens, I. § 44—
Holland, Studies, pp. 78-95 — Bergbohm, " Staatsvertrage und Gesetze
als Quellen des Volkerrechts " (1877), pp. 44-77 — Bulmerincq, " Praxis,
Theorie, und Codification des Volkerrechts" (1874), pp. 167-192—
Roszkowski in R.I. XXI. (1889), p. 520 — Proceedings of the American
Society of International Law, IV. (1910), pp. 208-227.
§ 30. The lack of precision which is natural to a Movement

large number of the rules of the Law of Nations on ofCodifT
account of its slow and gradual growth has created a catlon-
movement for its codification. The idea of a codifica-
tion of the Law of Nations in its totality arose at the
end of the eighteenth century. It was Bentham who
first suggested such a codification. He did not, how-
ever, propose codification of the existing positive Law
of Nations, but thought of a Utopian International Law
which could be the basis of an everlasting peace between
the civilised States.1
Another Utopian project is due to the French Con-
vention, which resolved in 1792 to create a Declaration
of the Kights of Nations as a pendant to the Declara-
tion of the Eights of Mankind of 1789. For this pur-
pose the Abbe Gregoire was charged with the drafting
of such a declaration. In 1795, Abbe Gregoire pro-
duced adraft of twenty-one articles, which, however,
1 See Bentham's Works, ed. Bow- Quarterly Review, XI. (1885), pp.
ring, VIII. p. 537; Nys, in The Law 226-231.
was rejected by the Convention, and the matter

dropped.1
It was not until 1861 that a real attempt was
made to show the possibility of a codification. This
was done by an Austrian jurist, Alfons von Domin-
Petruchevecz, who published in that year at Leipzig a
" Precis d'un Code de Droit International."
In 1862, the Eussian Professor Katschenowsky
brought an essay before the Juridical Society of London
(Papers II. 1863) arguing the necessity of a codifica-
tion of International Law.
In 1863, Professor Francis Lieber, of the Columbia
College, New York, drafted the Laws of War in a body
of rules which the United States published during the
Civil War for the guidance of her army.2
In 1868, Bluntschli, the celebrated Swiss inter-
preter ofthe Law
Volkerrecht of Nations, published
der civilisirten " Das
Staaten als moderne
Eechtsbuch
dargestellt." This draft code has been translated into
the French, Greek, Spanish, and Kussian languages,
and the Chinese Government produced an official
Chinese translation as a guide for Chinese officials.
In 1872, the great Italian politician and jurist
Mancini raised his voice in favour of codification of
the Law of Nations in his able essay " Vocazione del
nostro secolo per la riforma e codificazione del diritto
genti."
delleLikewise in 1872 appeared at New York David
Dudley Field's " Draft Outlines of an International
In 1873 the Institute of International Law was
Code/'
founded at Ghent in Belgium. This association of
jurists of all nations meets periodically, and has pro-
duced a number of drafts concerning various parts of
1 See Rivier, I. p. 40, where the real code, but certain principles
full text of these twenty-one articles only,
is given. They did not contain a 2 See below, vol. II. § 68.
International Law, and in especial a Draft Code of the

Law of War on Land (1880).
Likewise in 1873 was founded the Association for
the Reform and Codification of the Law of Nations,
which also meets periodically and which styles itself
now the International Law Association.
In 1874 the Emperor Alexander II. of Russia took
the initiative in assembling an international conference
at Brussels for the purpose of discussing a draft code
of the Law of Nations concerning land warfare. At
this conference jurists, diplomatists, and military men
were united as delegates of the invited States, and they
agreed upon a body of sixty articles which goes under
the name of The Declaration of Brussels. But the
Powers have never ratified these articles.
In 1880 the Institute of International Law pub-
lished its " Manuel des Lois de la Guerre sur Terre."
In 1887 Leone Levi published his " International
Law with Materials for a Code of International Law/'
In 1890 the Italian jurist Fiore published his " II
diritto internazionale codificato e sua sanzione giuri-
dica," of which a fourth edition appeared in 1911.
In 1906 E. Duplessix published his " La loi des
Nations. Pro jet destitution d'une autorite nationale,
legislative, administrative, judiciaire. Pro jet de Code
de Droit international public."
In 1911 Jerome Internoscia published his " New Code
of International
§ 31. At the end Law of" in
theEnglish, French,
nineteenth and in
century, Italian.xxx^
1899, Work of
the so-called Peace Conference at the Hague, convened Hague
on the personal initiative of the Emperor Nicholas II. conf
of Russia, has shown the possibility that parts of the ence-
Law of Nations may well be codified. Apart from
three Declarations of minor value and of the conven-
tion concerning the adaptation of the Geneva Conven-
tion to naval warfare, this conference has succeeded in
producing two important conventions which may well

be called codes — namely, first, the " Convention for the
Pacific Settlement of International Disputes," and,
secondly, the " Convention with respect to the Laws
and Customs of War on Land." The great practical
importance of the first-named convention is now being
realised, as the Permanent Court of Arbitration has in
a number of cases already successfully given its award.
Nor can the great practical value of the second-named
convention be denied. Although the latter contains,
even in the amended form given to it by the second
Hague Peace Conference of 1907, many gaps, which
must be filled up by the customary Law of Nations, and
although it is not a masterpiece of codification, it repre-
sents a model, the very existence of which teaches that
codification of parts of the Law of Nations is practicable,
provided the Powers are inclined to come to an under-
standing. The first Hague Peace Conference has there-
fore made an epoch in the history of International Law.
Work of § 32. Shortly after the Hague Peace Conference of
Hague°n 1899, the United States of America took a step with
regar(^ *° sea warfare similar to that taken by her in
and the 1863 with regard to land warfare. She published on
confer- June 27, 1900, a body of rules for the use of her navy
London, under the title " The Laws and Usages of War at Sea "
—the so-called " United States Naval War Code "-
which was drafted by Captain Charles H. Stockton, of
the United States Navy.
Although, on February 4, 1904, this code was by
authority of the President of the United States with-
drawn it provided the starting-point of a movement
for codification of maritime International Law. No
complete Naval War Code agreed upon by the Powers
has as yet made its appearance, but the second Hague
Peace Conference of 1907 and the Naval Conference
of London of 1908-9 have produced a number of law-
making treaties which represent codifications of several

parts of maritime International Law.
The second Hague Peace Conference met in 1907
and produced not less than thirteen conventions and
one declaration. This declaration prohibits the dis-
charge of projectiles and explosives from balloons and
takes the place of a corresponding declaration of the
first Hague Peace Conference. And three of the
thirteen conventions, namely that for the pacific settle-
ment of international disputes, that concerning the
laws and customs of war on land, and that concerning
the adaptation of the principles of the Geneva Conven-
tion to maritime war, likewise take the place of three
corresponding conventions of the first Hague Peace
Conference. But the other ten conventions are en-
tirely new and concern : the limitation of the employ-
ment of force for the recovery of contract debts, the
opening of hostilities, the rights and duties of neutral
Powers and persons in war on land, the status of enemy
merchant ships at the outbreak of hostilities, the con-
version ofmerchant ships into war ships, the laying of
automatic submarine contact mines, bombardments by
naval forces in time of war, restrictions on the exercise
of the right of capture in maritime war, the establish-
ment of a Prize Court, the rights and duties of neutral
Powers in maritime war.
The Naval Conference of London which met in
November 1908, and sat till February 1909, produced
the Declaration of London, the most important law-
making treaty as yet concluded. Its nine chapters
deal with : blockade, contraband, unneutral service,
destruction of neutral prizes, transfer to a neutral flag,
enemy character, convoy, resistance to search, com-
pensation. The Declaration of London, when ratified,
will make the establishment of an International Prize
Court possible.
value of § 33. In spite of the movement in favour of codi-

tlon'oT" fication of the Law of Nations, there are many eminent
national jurists who oppose such codification. They argue that
Law con- codification would never be possible on account of
differences of languages and of technical juridical terms.
They assert that codification would cut off the organic
growth and future development of International Law.
They postulate the existence of a permanent Inter-
national Court with power of executing its verdicts as
an indispensable condition, since without such a court
no uniform interpretation of controversial parts of a
code could be possible. Lastly, they maintain that the
Law of Nations is not yet at present, and will not be
for a long time to come, ripe for codification. Those
jurists, on the other hand, who are in favour of codi-
fication argue that the customary Law of Nations to a
great extent lacks precision and certainty, that writers
on International Law differ in many points regarding
its rules, and that, consequently, there is no broad and
certain basis for the practice of the States to stand upon.
Merits of § 34. I am decidedly not a blind and enthusiastic
tion in " admirer of codification in general. It cannot be main-
general, tained that codification is everywhere, at all times,
and under all circumstances opportune. Codification
certainly interferes with the so-called organic growth of
the law through usage into custom. It is true that
a law, once codified, cannot so easily adapt itself to
the individual merits of particular cases which come
under it. It is further a fact, which cannot be denied,
that together with codification there frequently enters
into courts of justice and into the area of juridical
literature a hair-splitting tendency and an interpreta-
tion of the law which often clings more to the letter
and the word of the law than to its spirit and its prin-
ciples. And it is not at all a fact that codification
does away with controversies altogether. Codification
certainly clears up many questions of law which have

been hitherto debatable, but it creates at the same
time new controversies. And, lastly, all jurists know
very well that the art of legislation is still in its infancy
and not at all highly developed. The hands of legis-
lators are very often clumsy, and legislation often does
more harm than good. Yet, on the other hand, the
fact must be recognised that history has given its
verdict in favour of codification. There is no civilised
State in existence whose Municipal Law is not to a
greater or lesser extent codified. The growth of the
law through custom goes on very slowly and gradually,
very often too slowly to be able to meet the demands
of the interests at stake. New interests and new in- '•
ventions very often spring up with which customary ;
law cannot deal. Circumstances and conditions fre-
quently change so suddenly that the ends of justice
are not met by the existing customary law of a State.
Thus, legislation, which is, of course, always partial
codification, becomes often a necessity in the face of
which all hesitation and scruple must vanish. What-
ever may be the disadvantages of codification, there
comes a time in the development of every civilised
State when it can no longer be avoided. And great
are the advantages of codification, especially of a codi-
fication that embraces a large part of the law. Many
controversies are done away with. The science of Law
receives a fresh stimulus. A more uniform spirit enters
into the law of the country. New conditions and
circumstances of life become legally recognised. Morti-
fying principles and branches are cut off with one
stroke. A great deal of fresh and healthy blood is
brought into the arteries of the body of the law in its
totality. If codification is carefully planned and pre-
pared, ifit is imbued with true and healthy conservatism,
many disadvantages can be avoided. And interpre-
tation on the part of good judges can deal with many

a fault that codification has made. If the worst
comes to the worst, there is always a Parliament or
another law-giving authority of the land to mend
through further legislation the faults of previous
codification.
Merits of § 35. But do these arguments in favour of codifica-
tion'of a tion m general also apply to codification of the Law of
inter- rf
national Nations ? . I have no doubt that , they . do more
. or. less.P
Law. It some oi these arguments nave no torce in view of
the special circumstances of the existence of Inter-
national Law and of the peculiarities of the Family of
Nations, there are other arguments which take their
place.
When opponents maintain that codification would
never be practicable on account of differences of lan-
guage and of technical juridical terms, I answer that
this difficulty is only as great an obstacle in the way
of codification as it is in the way of contracting inter-
national treaties. The fact that such treaties are con-
cluded every day shows that difficulties which arise out
of differences of language and of technical juridical
terms are not at all insuperable.
Of more weight than this is the next argument of
opponents, that codification of the Law of Nations
would cut off its organic growth and future develop-
ment. It cannot be denied that codification always
interferes with the growth of customary law, although
the assertion is not justified that codification does cut
off such growth. But this disadvantage can be met by
periodical revisions of the code and by its gradual
increase and improvement through enactment of addi-
tional and amending rules according to the wants and
needs of the days to come.
When opponents postulate an international court
with power of executing its verdicts as an indispen-
sable condition of codification, I answer that the non-
existence of such a court is quite as much or as little

an argument against codification as against the very
existence of International Law. If there is a Law of
Nations in existence in spite of the non-existence of
an international court to guarantee its realisation, I
cannot see why the non-existence of such a court
should be an obstacle to codifying the very same Law
of Nations. It may indeed be maintained that codi-
fication isall the more necessary as such an international
court does not exist. For codification of the Law of
Nations and the solemn recognition of a code by a
universal law-making international treaty would give
more precision, certainty, and weight to the rules of
the Law of Nations than they have now in their un-
written condition. And a uniform interpretation of a
code is now, since the first Hague Peace Conference
has instituted a Permanent Court of Arbitration, and
since the second Peace Conference has resolved upon
the establishment of an International Prize Court,
much more realisable than in former times, although
these courts will never have the power of executing
their verdicts.
But is the Law of Nations ripe for codification ?
I readily admit that there are certain parts of that
law which would offer the greatest difficulty, and which
therefore had better remain untouched for the present.
But there are other parts, and I think that they con-
stitute the greater portion of the Law of Nations,
which are certainly ripe for codification. There can
be no doubt that, whatever can be said against codi-
fication ofthe whole of the Law of Nations, partial
codification is possible and comparatively easy. The
work done by the Institute of International Law, and
published in the " Annuaire de Tlnstitut de Droit
International," gives evidence of it. And the number
and importance of the law-making treaties produced
by the Hague Peace Conferences and the Maritime
Conference of London, 1908-9, should leave no doubt

as to the feasibility of such partial codification.
§ 36. However, although possible, codification could
couid°be hardly be realised at once. The difficulties, though not
realised, insuperable, are so great that it would take the work of
perhaps a generation of able jurists to prepare draft
codes for those parts of International Law which may be
considered ripe for codification. The only way in which
such draft codes could be prepared consists in the
appointment on the part of the Powers of an inter-
national committee composed of a sufficient number
of able jurists, whose task would be the preparation
of the drafts. Public opinion of the whole civilised
world would, I am sure, watch the work of these men
with the greatest interest, and the Parliaments of the
civilised States would gladly vote the comparatively
small sums of money necessary for the costs of the
work. But in proposing codification it is necessary to
emphasise that it does not necessarily involve a re-
construction ofthe present international order and a
recasting of the whole system of International Law as
it at present stands. Naturally, a codification would
in many points mean not only an addition to the rules
at present recognised, but also the repeal, alteration, and
reconstruction of some of these rules. Yet, however
this may be, I do not believe that a codification ought
to be or could be undertaken which would revolutionise
the present international order and put the whole
system of International Law on a new basis. The
codification which I have in view is one that would
embody the existing rules of International Law to-
gether with such modifications and additions as are
necessitated by the conditions of the age and the very
fact of codification being taken in hand. If Inter-
national Law, as at present recognised, is once codified,
nothing prevents reformers from making proposals
which could be realised by successive codification.
CHAPTER II
DEVELOPMENT AND SCIENCE OF THE LAW OF
NATIONS
DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS
Lawrence, §§ 20-29 — Manning, pp. 8-20— Halleck, I. pp. 1-11 — Walker,

History, I. pp. 30-137— Taylor, §§ 6-29 — Ullmann, §§ 12-14 — Holtzendorff
in Holtzendorff, I, pp. 159-386— Nys, I. pp. 1-18— Martens, I. §§ 8-20—
Fiore, I. Nos. 3-31 — Calvo, I. pp. 1-32— Bonfils, Nos. 71-86 — Despagnet,
Nos. 1-19 — Merignhac, I. pp. 38-43 — Laurent, " Histoire du Droit des
Gens," &c., 14 vols. (2nd ed. 1861-1868) — Ward, "Enquiry into the
Foundation and History of the Law of Nations," 2 vols. (1795)—
Osenbriiggen, " De Jure Belli ac Pacis Romanorum " (1876) — Miiller-
Jochmus, "Geschichte des Volkerrechts im Alterthum" (1848) — Hosack,
" Rise and Growth of the Law of Nations " (1883), pp. 1-226— Nys, " Le
Droit de la Guerre et les Precurseurs de Grotius" (1882) and "Les
Origines du Droit International" (1894) — Hill, " History of Diplomacy
in the International Development of Europe," vol. I. (1905) and vol. II.
(1906)— Cybichowski, " Das antike Volkerrecht " (1907)— Phillipson, "The
International Law and Custom of Ancient Greece and Rome," 2 vols. (1910)
— Strupp, " Urkunden zur Geschichte des Volkerrechts," 2 vols. (1911).
§ 37. International Law as a law between Sove^NoLawof

reign and equal States based on the common consent
of these States is a product of modern Christian civilisa-
tion, and may be said to be hardly four hundred years
old. However, the roots of this law go very far back
into history. Such roots are to be found in the rules
and usages which were observed by the different nations
of antiquity with regard to their external relations.
But it is well known that the conception of a Family
of Nations did not arise in the mental horizon of the
ancient world. Each nation had its own religion and
gods, its own language, law, and morality. International
interests of sufficient vigour to wind a band around all
46 DEVELOPMENT OF THE LAW OF NATIONS
the civilised States, bring them nearer to each other,

and knit them together into a community of nations,
did not spring up in antiquity. On the other hand,
however, no nation could avoid coming into contact
with other nations. War was waged and peace con-
cluded. Treaties were agreed upon. Occasionally am-
bassadors were sent and received. International trade
sprang up. Political partisans whose cause was lost
often fled their country and took refuge in another.
And, just as in our days, criminals often fled their
country for the purpose of escaping punishment.
Such more or less frequent and constant contact of
different nations with one another could not exist
without giving rise to certain fairly congruent rules
and usages to be observed with regard to external
relations. These rules and usages were considered
under the protection of the gods ; their violation called
for religious expiation. It will be of interest to throw
a glance at the respective rules and usages of the
Jews, Greeks, and Komans.
The Jews. § 38. Although they were monotheists and the
standard of their ethics was consequently much higher
than that of their heathen neighbours, the Jews did
not in fact raise the standard of the international re-
lations of their time except so far as they afforded
foreigners living on Jewish territory equality before
the law. Proud of their monotheism and despising
all other nations on account of their polytheism, they
found it totally impossible to recognise other nations
as equals. If we compare the different parts of the
Bible concerning the relations of the Jews with other
nations, we are struck by the fact that the Jews were
sworn enemies of some foreign nations, as the Amale-
kites, for example, with whom they declined to have
any relations whatever in peace. When they went to
war with those nations, their practice was extremely
LAW OF NATIONS BEFORE GROTIUS 47
cruel. They killed not only the warriors on the battle-

field, but also the aged, the women, and the children
in their homes. Read, for example, the short descrip-
tion of the war of the Jews against the Amalekites in
1 Samuel xv., where we are told that Samuel instructed
King Saul as follows : (3) " Now go and smite Amalek,
and utterly destroy all that they have, and spare them
not ; but slay both man and woman, infant and suck-
ling, ox and sheep, camel and ass." King Saul obeyed
the injunction, save that he spared the life of Agag,
the Amalekite king, and some of the finest animals.
Then we are told that the prophet Samuel rebuked
Saul and " hewed Agag in pieces with his own hand."
Or again, in 2 Samuel xii. 31, we find that King David,
" the man after God's own heart," after the conquest
of the town of Kabbah, belonging to the Ammonites,
" brought forth the people that were therein and put
them under saws, and under harrows of iron, and made
them pass through the brick-kiln. ..."
With those nations, however, of which they were
not sworn enemies the Jews used to have international
relations. And when they went to war with those
nations, their practice was in no way exceptionally
cruel, if looked upon from the standpoint of their time
and surroundings. Thus we find in Deuteronomy xx.
10-14 the following rules :—
(10) " When thou comest nigh unto a city to fight
against it, then proclaim peace unto it.
(11) " And it shall be, if it make thee answer of
peace and open unto thee, that all the people that is
found therein shall be tributaries unto thee, and they
shall serve thee.
(12) " And if it will make no peace with thee,
but will make war against thee, then thou shalt
besiege it.
(13) " And when the Lord thy God hath delivered
it into thine hands, them shalt smite every male thereof

with the edge of the sword.
(14) " But the women, and the little ones, and the
cattle, and all that is in the city, even all the spoil
thereof, shalt thou take unto thyself ; and thou shalt
eat the spoil of thine enemies, which the Lord thy God
given thee."
hathComparatively mild, like these rules for warfare,
were the Jewish rules regarding their foreign slaves.
Such slaves were not without legal protection. The
master who killed a slave was punished (Exodus ii.
20) ; if the master struck his slave so severely that
he lost an eye or a tooth, the slave became a free man
(Exodus ii. 26 and 27). The Jews, further, allowed
foreigners to live among them under the full protection
of their laws. " Love . . . the stranger, for ye were
strangers in the land of Egypt," says Deuteronomy x.
19, and in Leviticus xxiv. 22 there is the command :
" You shall have one manner of law, as well for the
stranger as for one of your own country."
Of the greatest importance, however, for the Inter-
national Law of the future, are the Messianic ideals
and hopes of the Jews, as these Messianic ideals and
hopes are not national only, but fully mfernational.
The following are the beautiful words in which the
prophet Isaiah (ii. 2-4) foretells the state of mankind
when the Messiah shall have appeared :
(2) " And it shall come to pass in the last days,
that the mountain of the Lord's house shall be estab-
lished inthe top of the mountains, and shall be exalted
above the hills ; and all nations shall flow unto it.
(3) " And many people shall go and say, Come ye, and
let us go up to the mountain of the Lord, to the house of
the God of Jacob, and he will teach us of his ways, and
we will walk in his paths ; for out of Zion shall go forth
the law, and the word of the Lord from Jerusalem.
(4) " And he shall judge among the nations, and

shall rebuke many people : and they shall beat their
swords into plowshares, and their spears into pruning-
hooks : nation shall not lift up sword against nation,
neither shall they learn war any more/'
Thus we see that the Jews, at least at the time of
Isaiah, had a foreboding and presentiment of a future
when all the nations of the world should be united in
peace. And the Jews have given this ideal to the Chris-
tian world. It is the same ideal which has in bygone
times inspired all those eminent men who have laboured
to build up an International Law. And it is again
the same ideal which nowadays inspires all lovers of
international peace. Although the Jewish State and
the Jews as a nation have practically done nothing to
realise that ideal, yet it sprang up among them and
has never disappeared.
§ 39. Totally different from this Jewish contribution The
to a future International Law is that of the Greeks. Greeks-
The broad and deep gulf between their civilisation and
that of their neighbours necessarily made them look
down upon those neighbours as barbarians, and thus
prevented them from raising the standard of their
relations with neighbouring nations above the average
level of antiquity. But the Greeks before the Mace-
donian conquest were never united into one powerful
national State. They lived in numerous more or less
small city States, which were totally independent of
one another. It is this very fact which, as time went
on, called into existence a kind of International Law
between these independent States. They could never
forget that their inhabitants were of the same race.
The same blood, the same religion, and the same civilisa-
tion of their citizens united these independent and —
as we should say nowadays — Sovereign States into a
community of States which in time of peace and war
VOL. i. D
held themselves bound to observe certain rules as

regards the relations between one another. The con-
sequence was that the practice of the Greeks in
their wars among themselves was a very mild one.
It was a rule that war should never be commenced
without a declaration of war. Heralds were inviolable.
Warriors who died on the battlefield were entitled to
burial. If a city was captured, the lives of all those
who took refuge in a temple had to be spared. War
prisoners could be exchanged or ransomed ; their lot
was, at the utmost, slavery. Certain places, as, for
example, the temple of the god Apollo at Delphi, were
permanently inviolable. Even certain persons in the
armies of the belligerents were considered inviolable, as,
for instance, the priests, who carried the holy fire, and
the seers.
Thus the Greeks left to history the example that
independent and Sovereign States can live, and are
in reality compelled to live, in a community which
provides a law for the international relations of the
member-States, provided that there exist some common
interests and aims which bind these States together.
It is very often maintained that this kind of International
Law of the Greek States could in no way be compared
with our modern International Law, as the Greeks did
not consider their international rules as legally, but as
religiously binding only. We must, however, not forget
that the Greeks never made the same distinction be-
tween law, religion, and morality which the modern
world makes. The fact itself remains unshaken that
the Greek States set an example to the future that
independent States can live in a community in which
their international regulations are governed by certain
rules and customs based on the common consent of the
The members of that community.
Romans. § 40. Totally different again from the Greek con-
tribution to a future International Law is that of the
Komans. As far back as their history goes, the Romans
had a special set of twenty priests, the so-called fetiales,
for the management of functions regarding their rela-
tions with foreign nations. In fulfilling their functions
the fetiales did not apply a purely secular but a divine
and holy law, a jus sacrale, the so-called jus fetiale.
The fetiales were employed when war was declared or
peace was made, when treaties of friendship or of alli-
ance were concluded, when the Romans had an inter-
national claim before a foreign State, or vice versa.
According to Roman Law the relations of the Romans
with a foreign State depended upon the fact whether
or not there existed a treaty of friendship between
Rome and the respective State. In case no such treaty
was in existence, persons or goods coming from the
foreign land into the land of the Romans, and likewise
persons and goods going from the land of the Romans
into the foreign land, enjoyed no legal protection what-
ever. Such persons could be made slaves, and such
goods could be seized, and became the property of the
captor. Should such an enslaved person ever come
back to his country, he was at once considered a free
man again according to the so-called jus postliminii.
An exception was made as regards ambassadors. They
were always considered inviolable, and whoever violated
them was handed over to the home State of those am-
bas adors tobe punished according to discretion.
Different were the relations when a treaty of friend-
ship existed. Persons and goods coming from one
country into the other stood then under legal protec-
tion. So many foreigners came in the process of time
to Rome that a whole system of law sprang up regard-
ing these foreigners and their relations with Roman
citizens, the so-called jus gentium in contradistinction
to the jus civile. And a special magistrate, the praetor
peregrinus, was nominated for the administration of

that law. Of such treaties with foreign nations there
were three different kinds, namely, of friendship (ami-
citia), of hospitality (hospitium), or of alliance (foedus).
I do not propose to go into details about them. It
suffices to remark that, although the treaties were con-
cluded without any such provision, notice of termina-
tion could be given. Very often these treaties used
to contain a provision according to which future contro-
versies could be settled by arbitration of the so-called
recuperatores.
Very precise legal rules existed as regards war and
peace. Roman law considered war a legal institution.
There were four different just reasons for war, namely :
(1) Violation of the Roman dominion ; (2) violation of
ambassadors ; (3) violation of treaties ; (4) support
given during war to an opponent by a hitherto friendly
State. But even in such cases war was only justified
if satisfaction was not given by the foreign State.
Four fetiales used to be sent as ambassadors to the
foreign State from which satisfaction was asked. If such
satisfaction was refused, war was formally declared by
one of the fetiales throwing a lance from the Roman
frontier into the foreign land. For warfare itself no
legal rules existed, but discretion only, and there are
examples enough of great cruelty on the part of the
Romans. Legal rules existed, however, for the end of
war. War could be ended, first, through a treaty of
peace, which was then always a treaty of friendship.
War could, secondly, be ended by surrender (deditio).
Such surrender spared the enemy their lives and pro-
perty. War could, thirdly and lastly, be ended through
conquest of the enemy's country (occupatio). It was in
this case that the Romans could act according to dis-
cretion with the lives and the property of the enemy.
From this sketch of their rules concerning external
LAW OF NATIONS BEFOEE GROTIUS 53
relations, it becomes apparent that the Romans gave

to the future the example of a State with legal rules
for its foreign relations. As the legal people par ex-
cellence) the Romans could not leave their international
relations without legal treatment. And though this
legal treatment can in no way be compared to modern
International Law, yet it constitutes a contribution
to the Law of Nations of the future, in so far as its
example furnished many arguments to those to whose
efforts we owe the very existence of our modern Law
of Nations.
§ 41. The Roman Empire gradually absorbed nearly NO need
the whole civilised ancient world, so far as it was known
to the Romans. They hardly knew of any independent
civilised States outside the borders of their empire. Ages.
There was, therefore, neither room nor need for an
International Law as long as this empire existed. It
is true that at the borders of this world-empire there
were always wars, but these wars gave opportunity for
the practice of a few rules and usages only. And
matters did not change when under Constantine the
Great (313-337) the Christian faith became the religion
of the empire and Byzantium its capital instead of
Rome, and, further, when in 395 the Roman Empire
was divided into the Eastern and the Western Empire.
This Western Empire disappeared in 476, when Romu-
lus Augustus, the last emperor, was deposed by Odoacer,
the leader of the Germanic soldiers, who made himself
ruler in Italy. The land of the extinct Western Roman
Empire came into the hands of different peoples, chiefly
of Germanic extraction. In Gallia the kingdom of the
Franks springs up in 486 under Chlodovech the Mero-
vingian. In Italy, the kingdom of the Ostrogoths
under Theoderich the Great, who defeated Odoacer,
rises in 493. In Spain the kingdom of the Visigoths
appears in 507. The Vandals had, as early as in 429,
erected a kingdom in Africa, with Carthage as its

capital. The Saxons had already gained a footing in
Britannia in 449.
All these peoples were barbarians in the strict sense
of the term. Although they had adopted Christianity,
it took hundreds of years to raise them to the stan-
dard of a more advanced civilisation. And, likewise,
hundreds of years passed before different nations came
to light out of the amalgamation of the various peoples
that had conquered the old Roman Empire with the
residuum of the population of that empire. It was in
the eighth century that matters became more settled.
Charlemagne built up his vast Frankish Empire, and
was, in 800, crowned Roman Emperor by Pope Leo
III. Again the whole world seemed to be one empire,
headed by the Emperor as its temporal, and by the
Pope as its spiritual, master, and for an International
Law there was therefore no room and no need. But
the Frankish Empire did not last long. According to
the Treaty of Verdun, it was, in 843, divided into three
parts, and with that division the process of development
set in, which led gradually to the rise of the several
States of Europe.
In theory the Emperor of the Germans remained for
hundreds of years to come the master of the world,
but in practice he was not even master at home, as the
German Princes step by step succeeded in establishing
their independence. And although theoretically the
world was well looked after by the Emperor as its tem-
poral and the Pope as its spiritual head, there were
constantly treachery, quarrelling, and fighting going on.
War practice was the most cruel possible. It is true
that the Pope and the Bishops succeeded sometimes in
mitigating such practice, but as a rule there was no
influence of the Christian teaching visible.
teenthand § 42. The necessity for a Law of Nations did not
arise until a multitude of States absolutely independent sixteenth

of one another had successfully established themselves. c
The process of development, starting from the Treaty
of Verdun of 843, reached that climax with the reign of
Frederic III., Emperor of the Germans from 1440 to
1493. He was the last of the emperors crowned in Eome
by the hands of the Popes. At that time Europe was,
in fact, divided up into a great number of independent
States, and thenceforth a law was needed to deal with
the international relations of these Sovereign States.
Seven factors of importance prepared the ground for the
growth of principles of a future International Law.
(1) There were, first, the Civilians and the Canonists.
Roman Law was in the beginning of the twelfth century
brought back to the West through Irnerius, who taught
this law at Bologna. He and the other glossatores and
post-glossatores considered Roman Law the ratio scripta,
the law par excellence. These Civilians maintained that
Roman Law was the law of the civilised world ipso
facto through the emperors of the Germans being the
successors of the emperors of Rome. Their commen-
taries to the Corpus Juris Civilis touch upon many
questions of the future International Law which they
discuss from the basis of Roman Law.
The Canonists, on the other hand, whose influence
was unshaken till the time of the Reformation, treated
from a moral and ecclesiastical point of view many
questions of the future International Law concerning
war.1
(2) There were, secondly, collections of Maritime
Law of great importance which made their appearance
in connection with international trade. From the
eighth century the world trade, which had totally dis-
appeared inconsequence of the downfall of the Roman
Empire and the destruction of the old civilisation
1 See Holland, Studies, pp. 40-58 ; Walker, History, I. pp. 204-212.
during the period of the Migration of the Peoples,

began slowly to develop again. The sea trade specially
flourished and fostered the growth of rules and customs
of Maritime Law, which were collected into codes and
gained some kind of international recognition. The
more important of these collections are the following :
The Consolato del Mare, a private collection made at
Barcelona in Spain in the middle of the fourteenth
century ; the Laws of Ole'ron, a collection, made in the
twelfth century, of decisions given by the maritime
court of Oleron in France ; the Rhodian Laws, a very
old collection of maritime laws which probably was put
together between the sixth and the eighth centuries ; 1
the Tabula Amalfitana, the maritime laws of the town
of Amain in Italy, which date at latest from the tenth
century ; the Leges Wisbuenses, a collection of mari-
time laws of Wisby on the island of Gothland, in Sweden,
dating from the fourteenth century.
The growth of international trade caused also the
rise of the controversy regarding the freedom of the
high seas (see below, § 248), which indirectly influ-
enced the growth of an International Law (see below,
§§ 248-250).
(3) A third factor was the numerous leagues of
trading towns for the protection of their trade and
trading citizens. The most celebrated of these leagues
is the Hanseatic, formed in the thirteenth century.
These leagues stipulated for arbitration on controversies
between their member towns. They acquired trading
privileges in foreign States. They even waged war,
when necessary, for the protection of their interests.
(4) A fourth factor was the growing custom on the
part of the States of sending and receiving permanent
legations. In the Middle Ages the Pope alone had a
permanent legation at the court of the Frankish kings.
1 See Ashburner, " The Rhodian Sea Law " (1909), Introduction, p. cxii.
Later, the Italian Republics, as Venice and Florence for

instance, were the first States to send out ambassadors,
who took up their residence for several years in the
capitals of the States to which they were sent. At last,
from the end of the fifteenth century, it became a uni-
versal custom for the kings of the different States to
keep permanent legations at one another's capital.
The consequence was that an uninterrupted opportunity
was given for discussing and deliberating common
international interests. And since the position of
ambassadors in foreign countries had to be taken into
consideration, international rules concerning inviola-
bility and exterritoriality of foreign envoys gradually
grew up.
(5) A fifth factor was the custom of the great States
of keeping standing armies, a custom which also dates
from the fifteenth century. The uniform and stern
discipline in these armies favoured the rise of more
universal rules and practices of warfare.
(6) A sixth factor was the Renaissance and the
Reformation. The Renaissance of. science and art in
the fifteenth century, together with the resurrection of
the knowledge of antiquity, revived the philosophical
and aesthetical ideals of Greek life and transferred
them to modern life. Through their influence the
spirit of the Christian religion took precedence of its
letter. The conviction awoke everywhere that the
principles of Christianity ought to unite the Christian
world more than they had done hitherto, and that
these principles ought to be observed in matters inter-
national as much as in matters national. The Refor-
mation, on the other hand, put an end to the spiritual
mastership of the Pope over the civilised world. Pro-
testant States could not recognise the claim of the Pope
to arbitrate as of right in their conflicts either between
one another or between themselves and Catholic States.
(7) A seventh factor made its appearance in con-

nection with the schemes for the establishment of eternal
peace which arose from the beginning of the fourteenth
century. Although these schemes were Utopian, they
nevertheless must have had great influence by impress-
ing upon the Princes and the nations of Christendom
the necessity for some kind of organisation of the
numerous independent States into a community. The
first of these schemes was that of the French lawyer,
Pierre Dubois, who, as early as 1306, in "De Recupera-
tione Terre Sancte " proposed an alliance between all
Christian Powers for the purpose of the maintenance of
peace and the establishment of a Permanent Court of
Arbitration for the settlement of differences between
the members of the alliance.1 Another project arose in
1461, when Podiebrad, King of Bohemia from 1420-
1471, adopted the scheme of his Chancellor, Antoine
Marini, and negotiated with foreign courts the founda-
tion of a Federal State to consist of all the existing
Christian States with a permanent Congress, seated at
Basle, of ambassadors of all the member States as the
highest organ of the Federation.2 A third plan was
that of Sully, adopted by Henri IV. of France, which
proposed the division of Europe into fifteen States and
the linking together of these into a federation with a
General Council as its highest organ, consisting of
Commissioners deputed bjr the member States.3 A
fourth project was that of Emeric Crucee, who, in 1623,
proposed the establishment of a Union consisting not
only of the Christian States but of all States then exist-
1 See Meyer, "Die Stoats- und Podiebrad" (1909), and Schiicking,
volkerrechtlichen Ideen von Pierre " Die Organisation der Welt" (1909),
Dubois" (1909); Schiicking, "Die pp. 32-36.
Organisation der Welt " (1900), pp. 3 See Nys, " Etudes de Droit
28-30; Vesnitch, " Deux Pre"curseurs International et de Droit Politique "
Fran?ais du Pacifism, etc." (1911), (1896), pp. 301-306, and Darby,
pp. 1-29. " International Arbitration " (4th ed.
2 See Schwitzky, " Der Euro- 1904), pp. 10-21.
paeische Flirstenbund Georg's von
LAW OF NATIONS AFTER GROTIUS 59
ing in the whole of the world, with a General Council

as its highest organ, seated at Venice, and consisting
of ambassadors of all the member States of the Union.1
II
DEVELOPMENT OF THE LAW OF NATIONS AFTEK GROTIUS
Lawrence, §§ 29-53, and Essays, pp. 147-190— Halleck, I. pp. 12-45— Walker,
History, I. pp. 138-202— Taylor, §§ 65-95— Nys, I. pp. 19-46— Martens,
I. §§ 21-33— Fiore, I. Nos. 32-52— Calvo, I. pp. 32-101— Bonfils, Nos.
87-146— Despagnet, Nos. 20-27— Merignhac, I. pp. 43-78— Ullmann
§§ 15-17— Laurent, " Histoire du Droit des Gens, &c.," 14 vols. (2nd ed.
1861-1868)— Wheaton, " Histoire des Progres du Droit des Gens en
Europe" (1841)— Bulmerincq, "Die Systematik des Volkerrechts" (1858)
— Pierantoni, " Storiadel diritto internazionale nel secolo XIX." (1876) —
Hosack, " Rise and Growth of the Law of Nations" (1883), pp. 227-320
— Brie, " Die Fortschritte des Volkerrechts seit dem Wiener Congress "
(1890)— Gareis, " Die Fortschritte des internationalen Rechts im letzten
Menschenalter " (1905) — Dupuis, " Le Principe d'Equilibre et le Concert
Europeen de la Paix de Westphalie k 1'Acte d'Algdsiras " (1909)— Strupp,
" Urkunden zur Geschichte des Volkerrechts," 2 vols. (1911).
§ 43. The seventeenth century found a multitude of The time
independent States established and crowded on the
comparatively small continent of Europe. Many in-
terests and aims knitted these States together into a
community of States. International lawlessness was
henceforth an impossibility. This was the reason for
the fact that Grotius's work " De Jure Belli ac Pacis
1 See Balch, " Le Nouveau Cynee tion der Welt" (1909), and Darby,
de Emeric Cruce"e " (1909) ; Darby, " International Arbitration " (4th ed.
"International Arbitration " (4th ed. 1604). They are as Utopian as the
1904), pp. 22-33 ; Vesnitch, " Deux pre-Grotian schemes, but they are
Precurseurs Frangais du Pacifism, nevertheless of great importance,
etc." (1911), pp. 29-54. They preached again and again the
The schemes enumerated in the gospel of the organisation of the
text are those which were advanced Family of Nations, and although
before the appearance of Grotius's their ideal has not been and can
work" De Jure Belli ac Pacis "(1625). never be realised, they drew the
The numerous plans which made attention of public opinion to the
their appearance afterwards — that of fact that the international relations
the Landgrave of Hesse-Rheinfels, of States should not be based on
1666 ; of Charles, Duke of Lorraine, arbitrariness and anarchy, but on
1688 ; of William Penn, 1693 ; of rules of law and comity. And
John Bellers, 1710 ; of the Abb£ de thereby they have indirectly influ-
St. Pierre (1658-1743) ; of Kant, enced the gradual growth of rules
1795 ; and of others — are all dis- of law for these international rela-
cussed in Schucking, " Die Organisa- tions.
60 DEVELOPMENT OF THE LAW OP NATIONS
libri III.," which appeared in 1625, won the ear of the

different States, their rulers, and their writers on matters
international. Since a Law of Nations was now a
necessity, since many principles of such a law were
already more or less recognised and appeared again
among the doctrines of Grotius, since the system of
Grotius supplied a legal basis to most of those
international relations which were at the time con-
sidered as wanting such basis, the book of Grotius
obtained such a world-wide influence that he is cor-
rectly styled the " Father of the Law of Nations." It
would be very misleading and in no way congruent with
the facts of history to believe that Grotius's doctrines
were as a body at once universally accepted. No such
thing happened, nor could have happened. What did
soon take place was that, whenever an international
question of legal importance arose, Grotius's book was
consulted, and its authority was so overwhelming that
in many cases its rules were considered right. How
those rules of Grotius, which have more or less quickly
been recognised by the common consent of the writers
on International Law, have gradually received similar
acceptance at the hands of the Family of Nations is
a process of development which in each single phase
cannot be ascertained. It can only be stated that at
the end of the seventeenth century the civilised States
considered themselves bound by a Law of Nations the
rules of which were to a great extent the rules of Grotius.
This does not mean that these rules have from the end
of that century never been broken. On the contrary,
they have frequently been broken. But whenever this
occurred, the States concerned maintained either that
they did not intend to break these rules, or that their
acts were in harmony with them, or that they were
justified by just causes and circumstances in breaking
them. And the development of the Law of Nations did
not come to a standstill with the reception of the bulk

of the rules of Grotius. More and more rules were
gradually required and therefore gradually grew. All
the historically important events and facts of inter-
national life from the time of Grotius down to our own
have, on the one hand, given occasion to the manifesta-
tion of the existence of a Law of Nations, and, on the
other hand, in their turn made the Law of Nations
constantly and gradually develop into a more perfect
and more complete system of legal rules.
It serves the purpose to divide the history of the
development of the Law of Nations from the time of
Grotius into seven periods — namely, 1648-1721, 1721-
1789, 1789-1815, 1815-1856, 1856-1874, 1874-1899,
1899-1911.
§ 44. The ending of the Thirty Years' War through The period
the Westphalian Peace of 1648 is the first event of
great importance after the death of Grotius in 1645.
What makes remarkable the meetings of Osnaburg,
where the Protestant Powers met, and Minister, where
the Catholic Powers met, is the fact that there was for
the first time in history a European Congress assembled
for the purpose of settling matters international by
common consent of the Powers. With the exception of
England, Russia, and Poland, all the important Chris-
tian States were represented at this congress, as were
also the majority of the minor Powers. The arrange-
ments made by this congress show what a great change
had taken place in the condition of matters international.
The Swiss Confederation and the Netherlands were
recognised as independent States. The 355 different
States which belonged to the German Empire were
practically, although not theoretically, recognised as
independent States which formed a Confederation under
the Emperor as its head. Of these 355 States, 150
were secular States governed by hereditary monarchs
(Electors, Dukes, Landgraves, and the like), 62 were

free-city States, and 123 were ecclesiastical States
governed by archbishops and other Church dignitaries.
The theory of the unity of the civilised world under
the German Emperor and the Pope as its temporal and
spiritual heads respectively was buried for ever. A multi-
tude of recognised independent States formed a com-
munity on the basis of equality of all its members. The
conception of the European equilibrium1 made its
appearance and became an implicit principle as a
guaranty of the independence of the members of the
Family of Nations. Protestant States took up their
position within this family along with Catholic States,
as did republics along with monarchies.
In the second half of the seventeenth century the
policy of conquest initiated by Louis XIV. of France
led to numerous wars. But Louis XIV. always pleaded
a just cause when he made war, and even the estab-
lishment of the ill-famed so-called Chambers of Re-
union (1680-1683) was done under the pretext of law.
There was no later period in history in which the prin-
ciples of International Law were more frivolously
violated, but the violation was always cloaked by some
excuse. Five treaties of peace between France and
other Powers during the reign of Louis XIV. are of
great importance. (1) The Peace of the Pyrenees,
which ended in 1659 the war between France and Spain,
who had not come to terms at the Westphalian Peace.
(2) The Peace of Aix-la-Chapelle, which ended in 1668
another war between France and Spain, commenced in
1667 because France claimed the Spanish Netherlands
from Spain. This peace was forced upon Louis XIV.
through the triple alliance between England, Holland,
and Sweden. (3) The Peace of Nymeguen, which ended
in 1678 the war originally commenced by Louis XIV.
1 See below, pp. 64, 65, 80, 193, 307.
in 1672 against Holland, into which many other

European Powers were drawn. (4) The Peace of Rys-
wick, which ended in 1697 the war that had existed
since 1688 between France on one side, and, on the
other, England, Holland, Denmark, Germany, Spain,
and Savoy. (5) The Peace of Utrecht, 1713, and the
Peace of Rastadt and Baden, 1714, which ended the war
of the Spanish Succession that had lasted since 1701
between France and Spain on the one side, and, on the
other, England, Holland, Portugal, Germany, and Savoy.
But wars were not only waged between France and
other Powers during this period. The following treaties
of peace must therefore be mentioned :— (1) The Peaces
of Roeskild (1658), Oliva (1660), Copenhagen (also 1660),
and Kardis (1661). The contracting Powers were
Sweden, Denmark, Poland, Prussia, and Kussia. (2)
The Peace of Carlowitz, 1699, between Turkey, Austria,
Poland, and Venice. (3) The Peace of Nystaedt, 1721,
between Sweden and Kussia under Peter the Great.
The year 1721 is epoch-making because with the
Peace of Nystaedt Eussia enters as a member into the
Family of Nations, in which she at once held the posi-
tion of a Great Power. The period ended by the year
1721 shows in many points progressive tendencies
regarding the Law of Nations. Thus the right of visit
and search on the part of belligerents over neutral
vessels becomes recognised. The rule " free ships, free
goods/' rises as a postulate, although it was not uni-
versally recognised till 1856. The effectiveness of
blockades, which were first made use of in war by the
Netherlands at the end of the sixteenth century, rose
as a postulate and became recognised in treaties between
Holland and Sweden (1667) and Holland and England
(1674), although its universal recognition was not realised
until the nineteenth century. The freedom of the
high seas, claimed by Grotius and others, began gradu-
ally to obtain recognition in practice, although it did

likewise not meet with universal acceptance till the
nineteenth century. The balance of power is solemnly
recognised by the Peace of Utrecht as a principle of
the Law of Nations.
The period § 45. Before the end of the first half of the eighteenth
\JjH~ century peace in Europe was again disturbed. The
rivalry between Austria and Prussia, which had become
a kingdom in 1701 and the throne of which Frederick II.
had ascended in 1740, led to several wars in which Eng-
land, France, Spain, Bavaria, Saxony, and Holland took
part. Several treaties of peace were successively con-
cluded which tried to keep up or re-establish the balance
of power in Europe. The most important of these
treaties are : (1) The Peace of Aix-la-Chapelle of 1748
between France, England, Holland, Austria, Prussia,
Sardinia, Spain, and Genoa. (2) The Peace of Huberts-
burg and the Peace of Paris, both of 1763, the former
between Prussia, Austria, and Saxony, the latter be-
tween England, France, and Spain. (3) The Peace of
Versailles of 1783 between England, the United States
of America, France, and Spain.
These wars gave occasion to disputes as to the right
of neutrals and belligerents regarding trade in time of
war. Prussia became a Great Power. The so-called
First Armed Neutrality l made its appearance in 1780
with claims of great importance, which were not gener-
ally recognised till 1856. The United States of America
succeeded in establishing her independence and became
a member of the Family of Nations, whose future atti-
tude fostered the growth of several rules of International
Law.
Theperiod § 46. All progress, however, was endangered, and
indeed the Law of Nations seemed partly non-existent,
1 See below, Vol. II, §§289 and 290, and Second Armed Neutrality are
where details concerning the First given.
during the time of the French Revolution and the

Napoleonic wars. Although the French Convention
resolved in 1792 (as stated above, § 30) to create a
" Declaration of the Eights of Nations," the Revolu-
tionary Government and afterwards Napoleon I. very
often showed no respect for the rules of the Law of
Nations. The whole order of Europe, which had been
built up by the Westphalian and subsequent treaties of
peace for the purpose of maintaining a balance of power,
was overthrown. Napoleon I. was for some time the
master of Europe, Russia and England excepted. He
arbitrarily created States and suppressed them again.
He divided existing States into portions and united
separate States. The kings depended upon his good-
will, and they had to follow orders when he commanded.
Especially as regards maritime International Law, a
condition of partial lawlessness arose during this period.
Already in 1793 England and Russia interdicted all
navigation with the ports of France, with the intention
of subduing her by famine. The French Convention
answered with an order to the French fleet to capture
all neutral ships carrying provisions to the ports of
the enemy or carrying enemy goods. Again Napoleon,
who wanted to ruin England by destroying her com-
merce, announced in 1806 in his Berlin Decrees the
boycott of all English goods. England answered with
the blockade of all French ports and all ports of the
allies of France, and ordered her fleet to capture all
ships destined to any such port.
When at last the whole of Europe was mobilised
against Napoleon and he was finally defeated, the whole
face of Europe was changed, and the former order of
things could not possibly be restored. It was the task
of the European Congress of Vienna in 1814 and 1815
to create a new order and a fresh balance of power.
This new order comprised chiefly the following arrange-
VOL. I. E
ments :— The Prussian and the Austrian monarchies

were re-established, as was also the Germanic Con-
federation, which consisted henceforth of thirty-nine
member States. A kingdom of the Netherlands was
created out of Holland and Belgium. Norway and
Sweden became a Real Union. The old dynasties were
restored in Spain, in Sardinia, in Tuscany, and in
Modena, as was also the Pope in Eome. To the nine-
teen cantons of the Swiss Confederation were added
those of Geneva, Valais, and Neuchatel, and this Con-
federation was neutralised for all the future.
But the Vienna Congress did not only establish a
new political order in Europe, it also settled some
questions of International Law. Thus, free navigation
was agreed to on so-called international rivers, which
are rivers navigable from the Open Sea and running
through the land of different States. It was further
arranged that henceforth diplomatic agents should be
divided into three classes (Ambassadors, Ministers,
Charges d' Affaires). Lastly, a universal prohibition of
the trade in negro slaves was agreed upon.
The § 47. The period after the Vienna Congress begins
1815°- with the so-called Holy Alliance. Already on Sep-
1856- tember 26, 1815, before the second Peace of Paris, the
Emperors of Russia and Austria and the King of Prussia
called this alliance into existence, the object of which
was to make it a duty upon its members to apply the
principles of Christian morality in the administration
of the home affairs of their States as well as in the
conduct of their international relations. After the
Vienna Congress the sovereigns of almost all the Euro-
pean States had joined that alliance with the exception
of England. George IV., at that time' prince-regent
only, did not join, because the Holy Alliance was an
alliance not of the States, but of sovereigns, and there-
fore was concluded without the signatures of the respec-
tive responsible Ministers, whereas according to the

English Constitution the signature of such a responsible
Minister would have been necessary.
The Holy Alliance had not as such any importance
for International Law, for it was a religious, moral, and
political, but scarcely a legal alliance. But at the
Congress of Aix-la-Chapelle in 1818, which the Em-
perors of Kussia and Austria and the King of Prussia
attended in person, and where it might be said that the
principles of the Holy Alliance were practically applied,
the Great Powers signed a Declaration,1 in which they
solemnly recognised the Law of Nations as the basis
of all international relations, and in which they pledged
themselves for all the future to act according to its
rules. The leading principle of their politics was that
of legitimacy,2 as they endeavoured to preserve every-
where the old dynasties and to protect the sovereigns
of the different countries against revolutionary move-
ments oftheir subjects. This led, in fact, to a dangerous
neglect of the principles of International Law regarding
intervention. The Great Powers, with the exception
of England, intervened constantly with the domestic
affairs of the minor States in the interest of the legiti-
mate dynasties and of an anti-liberal legislation. The
Congresses at Troppau, 1820, Laibach, 1821, Verona,
1822, occupied themselves with a deliberation on such
interventions.
The famous Monroe Doctrine (see below, § 139)
owes its origin to that dangerous policy of the European
Powers as regards intervention, although this doctrine
embraces other points besides intervention. As from
1810 onwards the Spanish colonies in South America
were falling of! from the mother country and declaring
their independence, and as Spain was, after the Vienna
1 See Martens, N.R. IV. p. 560. a See Brockhaus, "Das Legi-
timitatsprincip " (1868).
Congress, thinking of reconquering these States with

the help of other Powers who upheld the principle of
legitimacy, President Monroe delivered his message on
December 2, 1823, which pointed out amongst other
things, that the United States could not allow the inter-
ference of a European Power with the States of the
American continent.
Different from the intervention of the Powers of the
Holy Alliance in the interest of legitimacy were the
two interventions in the interest of Greece and Belgium.
England, France, and Eussia intervened in 1827 in the
struggle of Turkey with the Greeks, an intervention
which led finally in 1830 to the independence of Greece.
And the Great Powers of the time, namely, England,
Austria, France, Prussia, and Russia, invited by the
provisional Belgian Government, intervened in 1830 in
the struggle of the Dutch with the Belgians and secured
the formation of a separate Kingdom of Belgium.
It may be maintained that the establishment of
Greece and Belgium inferred the breakdown of the
Holy Alliance. But it was not till the year 1848 that
this alliance was totally swept away through the dis-
ap earance ofabsolutism and the victory of the consti-
tutional system in most States of Europe. Shortly
afterwards, in 1852, Napoleon III., who adopted the
principle of nationality,1 became Emperor of France.
Since he exercised preponderant influence in Europe,
one may say that this principle of nationality super-
seded in European politics the principle of legitimacy.
The last event of this period is the Crimean War,
which led to the Peace as well as to the Declaration
of Paris in 1856. This war broke out in 1853 between
Eussia and Turkey. In 1854, England, France, and
Sardinia joined Turkey, but the war continued never-
1 See Bulraerincq, "Praxis, Theorie und Codification des Volkerrechts "
(1874), pp. 53-70.
LAW OF NATIONS AFTEB GROTIUS 69
theless for another two years. Finally, however, Russia

was defeated, a Congress assembled at Paris, where
England, France, Austria, Russia, Sardinia, Turkey,
and eventually Prussia, were represented, and peace
was concluded in March 1856. In the Peace Treaty,
Turkey is expressly received as a member into the
Family of Nations. Of greater importance, however,
is the celebrated Declaration of Paris regarding mari-
time International Law which was signed on April 16,
1856, by the delegates of the Powers that had taken
part in the Congress. This declaration abolished
privateering, recognised the rules that enemy goods on
neutral vessels and that neutral goods on enemy vessels
cannot be confiscated, and stipulated that a blockade
in order to be binding must be effective. Together
with the fact that at the end of the first quarter of
the nineteenth century the principle of the freedom
of the high seas J became universally recognised, the
Declaration of Paris is a prominent landmark in the
progress of the Law of Nations. The Powers that had
not been represented at the Congress of Paris were
invited to sign the Declaration afterwards, and the
majority of the members of the Family of Nations did
sign it before the end of the year 1856. The few States,
such as the United States of America, Spain, Mexico,
and others, which did not then sign,2 have in practice
since 1856 not acted in opposition to the Declaration,
and one may therefore, perhaps, maintain that the
Declaration of Paris has already become or will soon
become universal International Law through custom.
Spain and Mexico, however, signed the Declaration in
1907, as Japan had already done in 1886.
§ 48. The next period, the time from 1856 to 1874, Theperiod
1 See below, § 251. not go far enough, and did not 1874.
2 It should be mentioned that the interdict capture of private enemy
United States did not sign the vessels. 185ft-
Declaration of Paris because it did
is of prominent importance for the development of the

Law of Nations. Under the aegis of the principle of
nationality, Austria turns in 1867 into the dual mon-
archy ofAustria-Hungary, and Italy as well as Germany
becomes united. The unity of Italy rises out of the
war of France and Sardinia against Austria in 1859,
and Italy ranges henceforth among the Great Powers
of Europe. The unity of Germany is the combined
result of three wars : that of Austria and Prussia in
1864 against Denmark on account of Schleswig-Holstein,
that of Prussia and Italy against Austria in 1866, and
that of Prussia and the allied South German States
against France in 1870. The defeat of France in 1870
had the consequence that Italy took possession of the
Papal States, whereby the Pope disappeared from the
number of governing sovereigns.
The United States of America rise through the suc-
cessful termination of the Civil War in 1865 to the
position of a Great Power. Several rules of maritime
International Law owe their further development to
this war. And the instructions concerning warfare on
land, published in 1863 by the Government of the United
States, represent the first step towards codification of
the Laws of War. In 1864, the Geneva Convention for
the amelioration of the condition of soldiers wounded in
armies in the field is, on the initiation of Switzerland,
concluded by nine States, and in time almost all civil-
ised States became parties to it. In 1868, the Declara-
tion of St. Petersburg, interdicting the employment in
war of explosive balls below a certain weight, is signed
by many States. Since Kussia in 1870 had arbitrarily
shaken off the restrictions of Article 11 of the Peace
Treaty of Paris of 1856 neutralising the Black Sea, the
Conference of London, which met in 1871 and was
attended by the representatives of the Powers which
were parties to the Peace of Paris of 1856, solemnly
LAW OF NATIONS AFTEK GROTIUS 71
proclaimed
Law " that
of Nations thatit no
is Power
an essential principle
can liberate itselfoffrom
the
the engagements of a treaty, or modify the stipulations
thereof, unless with the consent of the contracting
Powers by means of an amicable arrangement/' The
last event in this period is the Conference of Brussels
of 1874 for the codification of the rules and usages of
war on land. Although the signed code was never
ratified, the Brussels Conference was nevertheless epoch-
making, since it showed the readiness of the Powers to
come to an understanding regarding such a code.
§ 49. After 1874 the principle of nationality con- The period
tinues to exercise its influence as before. Under its 1899.
aegis takes place the partial decay of the Ottoman
Empire. The refusal of Turkey to introduce reforms
regarding the Balkan population led in 1877 to war
between Turkey and Eussia, which was ended in 1878
by the peace of San Stefano. As the conditions of
this treaty would practically have done away with
Turkey in Europe, England intervened and a European
Congress assembled at Berlin in June 1878 which modi-
fied materially the conditions of the Peace of San
Stefano. The chief results of the Berlin Congress are :—
(1) Servia, Eoumania, Montenegro become independent
and Sovereign States ; (2) Bulgaria becomes an inde-
pendent principality under Turkish suzerainty ; (3) the
Turkish provinces of Bosnia and Herzegovina come
under the administration of Austria-Hungary ; (4) a
new province under the name of Eastern Eumelia is
created in Turkey and is to enjoy great local auto-
nomy (according to an arrangement of the Conference
of Constantinople in 1885-1886 a bond is created be-
tween Eastern Eumelia and Bulgaria by the appoint-
ment of the Prince of Bulgaria as governor of Eastern
Eumelia) ; (5) free navigation on the Danube from the
Iron Gates to its mouth in the Black Sea is proclaimed.
In 1889 Brazil becomes a Republic and a Federal

State (the United States of Brazil). In the same year
the first Pan-American Congress meets at Washington.
In 1897 Crete revolts against Turkey, war breaks
out between Greece and Turkey, the Powers interfere,
and peace is concluded at Constantinople. Crete be-
comes an autonomous half-Sovereign State under
Turkish suzerainty with Prince George of Greece as
governor, who, however, retires in 1906.
In the Far East war breaks out in 1894 between
China and Japan, on account of Korea. China is de-
feated, and peace is concluded in 1895 at Shimonoseki.1
Japan henceforth ranks as a Great Power. That she
must now be considered a full member of the Family
of Nations becomes apparent from the treaties con-
cluded soon afterwards by her with other Powers for
the purpose of abolishing their consular jurisdiction
within the boundaries of Japan.
In America the United States intervene in 1898 in
the revolt of Cuba against the motherland, whereby
war breaks out between Spain and the United States.
The defeat of Spain secures the independence of Cuba
through the Peace of Paris2 of 1898. The United
States acquires Porto Rico and other Spanish West
Indian Islands, and, further, the Philippine Islands,
whereby she becomes a colonial Power.
An event of great importance during this period is
the Congo Conference of Berlin, which took place in
1884-1885, and at which England, Germany, Austria-
Hungary, Belgium, Denmark, Spain, the United States
of America, France, Italy, Holland, Portugal, Russia,
Sweden-Norway, and Turkey were represented. This
conference stipulated freedom of commerce, interdiction
of slave-trade, and neutralisation of the territories in the
1 See Martens, N.R.G. 2nd Ser. 2 See Martens, N.R.G. 2nd Ser.
XXI. (1897), p. 641. XXXII. (1905), p. 74.
Congo district, and secured freedom of navigation on the

rivers Congo and Niger. The so-called Congo Free State
was recognised as a member of the Family of Nations.
A second fact of great importance during this period
is the movement towards the conclusion of international
agreements concerning matters of international ad-
ministration. This movement finds expression in the
establishment of numerous International Unions with
special International Offices. Thus a Universal Tele-
graphic Union is established in 1875, a Universal Postal
Union in 1878, a Union for the Protection of Industrial
Property in 1883, a Union for the Protection of Works
of Literature and Art in 1886, a Union for the Publica-
tion of Custom Tariffs in 1890. There were also con-
cluded conventions concerning :— (1) Private Inter-
national Law (1900 and 1902) ; (2) Eailway transports
and freights (1890) ; (3) the metric system (1875) ; (4)
phylloxera epidemics (1878 and 1881) ; (5) cholera and
plague epidemics (1893, 1896, &c.) ; (6) Monetary
Unions (1865, 1878, 1885, 1892, 1893).
A third fact of great importance is that in this
period a tendency arises to settle international conflicts
more frequently than in former times by arbitration.
Numerous arbitrations are actually taking place, and
several treaties are concluded between different States
stipulating the settlement by arbitration of all conflicts
which might arise in future between the contracting
parties.
The last fact of great importance which is epoch-
making for this period is the Peace Conference of the
Hague of 1899. This Conference produces, apart from
three Declarations of minor importance, a Convention
for the Pacific Settlement of International Conflicts, a
Convention regarding the Laws and Customs of War
on Land, and a Convention for the Adaptation to
Maritime Warfare of the Principles of the Geneva Con-
vention. It also formulates, among others, the three

wishes (1) that a conference should in the near future
regulate the rights and duties of neutrals, (2) that a
future conference should contemplate the declaration
of the inviolability of private property in naval war-
fare, (3)that a future conference should settle the ques-
tion of the bombardment of ports, towns, and villages
by naval forces.
The § 50. Soon after the Hague Peace Conference, in
Century. October 1899, war breaks out in South Africa between
Great Britain and the two Boer Republics, which leads
to the latter's subjugation at the end of 1901. The
assassination on June 10, 1900, of the German Minister
and the general attack on the foreign legations at
Peking necessitate united action of the Powers against
China for the purpose of vindicating this violation of
the fundamental rules of the Laws of Nations. Friendly
relations are, however, re-established with China on
her submitting to the conditions enumerated in the
Final Protocol of Peking,1 signed on September 7, 1901.
In December 1902 Great Britain, Germany, and Italy
institute a blockade of the coast of Venezuela for the
purpose of making her comply with their demands for
the indemnification of their subjects wronged during
civil wars in Venezuela, and the latter consents to pay
indemnities to be settled by a mixed commission of
diplomatists.2 As, however, Powers other than those
blockading likewise claim indemnities, the matter is re-
ferred to the Permanent Court of Arbitration at the
Hague, which in 1904 gives its award 3 in favour of the
blockading Powers. In February 1904 war breaks out
between Japan and Russia on account of Manchuria
and Korea. Russia is defeated, and peace is concluded
1 See Martens, N.R.G. 2nd Ser. 3 See Martens, N.R.G. 3rd Ser.
XXXII. p. 94. I. p. 67.
1 See Martens, N.R.G. 3rd Ser.
I. p. 46.
through the mediation of the United States of America,

on September 5, 1905, at Portsmouth.1 Korea, now
freed from the influence of Russia, places herself by the
Treaty of Seoul 2 of November 17, 1905, under the
protectorate of Japan. Five years later, however, by
the Treaty of Seoul3 of August 22, 1910, she merges
entirely into Japan.
The Real Union between Norway and Sweden, which
was established by the Vienna Congress in 1815, is peace-
fully dissolved by the Treaty of Karlstad 4 of October
26, 1905. Norway becomes a separate kingdom under
Prince Charles of Denmark, who takes the name of
Haakon VIII., and Great Britain, Germany, Russia,
and France guarantee by the Treaty of Christiania 5 of
November 2, 1907, the integrity of Norway on con-
dition that she would not cede any part of her territory
to any foreign Power.
The rivalry between France and Germany — the
latter protesting against the position conceded to France
in Morocco by the Anglo-French agreement signed at
London on April 8, 1904 — leads in January 1906 to the
Conference of Algeciras, in which Great Britain, France,
Germany, Belgium, Holland, Italy, Austria-Hungary,
Portugal, Russia, Sweden, Spain, and the United States
of America take part, and where on April 7, 1906, the
General Act of the International Conference of Algeciras 6
is signed. This Act, which recognises, on the one hand,
the independence and integrity of Morocco, and, on
the other, equal commercial facilities for all nations in
that country, contains :— (1) A declaration concerning
the organisation of the Moroccan police ; (2) regulations
concerning the detection and suppression of the illicit
1 See Martens, N.R.G. 2nd Ser. * See Martens, N.R.G-. 2nd Ser.
XXXIII. p. 3. XXXIV. p. 700.
2 See Martens, N.KG. 2nd Ser. 5 See Martens, N.R.G. 3rd Ser.
XXXIV. p. 727. II. p. 9, and below, § 574.
3 See Martens, N.R.G. 3rd Ser. 6 See Martens, N.R.G. 2nd Ser.
IV. p. 24. XXXIV. p. 238.
trade in arms ; (3) an Act of concession for a Moorish

State Bank ; (4) a declaration concerning an improved
yield of the taxes and the creation of new sources of
revenue ; (5) regulations respecting customs and the
suppression of fraud and smuggling ; (6) a declaration
concerning the public services and public works. But
it would seem that this Act has not produced a condi-
tion of affairs of any permanency. Since, in 1911,
internal disturbances in Morocco led to military action
on the part of France and Spain, Germany, in July of
the same year, sent a man-of-war to the port of Agadir.
Thus the Moroccan question has been reopened, and
fresh negotiations for its settlement are taking place
between the Powers.1
Two events of importance occur in 1908. The first
is the merging of the Congo Free State 2 into Belgium,
which annexation is not as yet recognised by all the
Powers. The other is the crisis in the Near East caused
by the ascendency of the so-called Young Turks and
the introduction of a constitution in Turkey. Simul-
taneously on October 5, 1908, Bulgaria declares herself
independent, and Austria-Hungary proclaims her sover-
eignty over Bosnia and Herzegovina, which two Turkish
provinces had been under her administration since 1878.
This violation of the Treaty of Berlin considerably
endangers the peace of the world, and an international
conference is proposed for the purpose of reconsidering
the settlement of the Near Eastern question. Austria-
Hungary, however, does not consent to this, but prefers
to negotiate with Turkey alone in the matter,* and a
Protocol is signed by the two Powers on February 26,
1909, according to which Turkey receives a substantial
indemnity in money and other concessions. Austria-
1 It should be mentioned that by of Abyssinia ; see Martens, N.K.G.
the Treaty of London of December 2nd Ser. XXXV. p. 556.
13, 1906, Great Britain, France, and 2 See Martens, N.R.G. 3rd Ser.
Italy agree to co-operate in maintain- II. p. 101.
ing the independence and integrity
Hungary negotiates likewise with Montenegro alone,

and consents to the modifications in Article 29 of the
Treaty of Berlin concerning the harbour of Antivary,
which is to be freed from Austria-Hungarian control
and is henceforth to be open to warships of all nations.
Whereupon the demand for an international conference
is abandoned and the Powers notify on April 7, 1909,
their consent to the abolition of Article 25 and the
amendment of Article 29 of the Treaty of Berlin.1
In 1910 Portugal becomes a Republic ; but the
Powers, although they enter provisionally into communi-
cation with the de facto government, do not recognise
the Republic until September 1911, after the National
Assembly adopted the republican form of government.
In September 1911 war breaks out between Italy
and Turkey, on account of the alleged maltreatment
of Italian subjects in Tripoli.
International Law as a body of rules for the inter-
national conduct of States makes steady progress during
this period. This is evidenced by congresses, confer-
ences, and law-making treaties. Of conferences and
congresses must be mentioned the second, third, and
fourth Pan-American Congresses,2 which take place at
Mexico in 1901, at Rio in 1906, and at Buenos Ayres in
1910. Although the law-making treaties of these con-
gresses have not found ratification, their importance
cannot be denied. Further, in 1906 a conference
assembles in Geneva for the purpose of revising the
Geneva Convention of 1864 concerning the wounded in
land warfare, and on July 6, 1906, the new Geneva 3
Convention is signed. Of the greatest importance,
however, are the second Hague Peace Conference of
1907 and the Naval Conference of London of 1898-9.
1 See Martens, N.R.G-. 3rd Ser. "Pan-America" (1910); Barrett,
II. p. 606. " The Pan-American Union " (1911).
8 See Moore, VI. § 969 ; Fried, 3 See Martens, N.R.G. 3rd Ser.
II. p. 323.
The second Peace Conference assembles at the Hague

on June 15, 1907. Whereas at the first there were
only 26 States represented, 44 are represented at the
second Peace Conference. The result of this Confer-
ence is contained in its Final Act,1 which is signed on
October 18, 1907, and embodies no fewer than thirteen
law-making Conventions besides a declaration of minor
importance. Of these Conventions, 1, 4, and 10 are
mere revisions of Conventions agreed upon at the first
Peace Conference of 1899, but the others are new and
concern :— The employment of force for the recovery
of contract debts (2) ; the commencement of hostilities
(3) ; the rights and duties of neutrals in land warfare
(5) ; the status of enemy merchant-ships at the out-
break of hostilities (6) ; the conversion of merchantmen
into men-of-war (7) ; the laying of submarine mines (8) ;
the bombardment by naval forces (9) ; restrictions of
the right of capture in maritime war (11) ; the estab-
lishment of an International Prize Court (12) ; the
rights and duties of neutrals in maritime war (13).
The Naval Conference of London assembles on
December 4, 1908, for the purpose of discussing the
possibility of creating a code of prize law without
which the International Prize Court, agreed upon at
the second Hague Peace Conference, could not be
established, and produces the Declaration of London,
signed on February 26, 1909. This Declaration contains
71 articles, and settles in nine chapters the law con-
cerni—g : (1) Blockade ; (2) contraband ; (3) un-
neutral service ; (4) destruction of neutral prizes ; (5)
transfer to a neutral flag ; (6) enemy character ; (7)
convoy ; (8) resistance to search ; and (9) compensa-
tion. The Declaration is accompanied by a General
Report on its stipulations which is intended to serve as
an official commentary.
1 See Martens, N.R.G. 3rd Ser. III. p. 323.
The movement which began in the last half of the

nineteenth century towards the conclusion of inter-
national agreements concerning matters of international
administration, develops favourably during this period.
The following conventions are the outcome of this
movement :— (1) Concerning the preservation of wild
animals, birds, and fish in Africa (1900) ; (2) concerning
international hydrographic and biological investigations
in the North Sea (1901) ; (3) concerning protection of
birds useful for agriculture (1902) ; (4) concerning the
production of sugar (1902) ; (5) concerning the White
Slave traffic (1904) ; (6) concerning the establishment
of an International Agricultural Institute at Kome
(1905) ; (7) concerning unification of the Pharmacopceial
Formulas (1906) ; (8) concerning the prohibition of the
use of white phosphorus (1906) ; (9) concerning the prohi-
bition of night work for women (1906) ; (10) concerning
the international circulation of motor vehicles (1909).
It is, lastly, of the greatest importance to mention
that the so-called peace movement,1 which aims at the
settlement of all international disputes by arbitration
or judicial decision of an International Court, gains
considerable influence over the Governments and public
opinion everywhere since the first Hague Peace Con-
ference. A great number of arbitration treaties are
agreed upon, and the Permanent Court of Arbitration
established at the Hague gives its first award 2 in a case
in 1902 and its ninth in 1911. The influence of these
decisions upon the peaceful settlement of international
differences generally is enormous, and it may confi-
dently be expected that the third Hague Peace Con-
ference will make arbitration obligatory for some of the
matters which do not concern the vital interests, the
honour, and the independence of the States. It is a
hopeful sign that, whereas most of the existing arbitra-
1 See Fried, " Handbuch der Frie- 2 See below, § 476.
dens-bewegung,"2nded., 2vols. (1911).
tion treaties exempt conflicts which concern the vital

interests, the honour, and the independence, Argentina
and Chili in 1902, Denmark and Holland in 1903, Den-
mark and Italy in 1905, Denmark and Portugal in 1907,
Argentina and Italy in 1907, the Central American
Republics of Costa Eica, Guatemala, Honduras, Nicar-
agua, and San Salvador in 1907, Italy and Holland in
1907, entered into general arbitration treaties according
to which all differences, without any exception, shall be
settled by arbitration.1
six Les- § 51. It is the task of history, not only to show how
HMory of things have grown in the past, but also to extract a
of Nations moral ôr the future out of the events of the past. Six
morals can be said to be deduced from the history of
the development of the Law of Nations :
(1) The first and principal moral is that a Law of
Nations can exist only if there be an equilibrium, a
balance of power, between the members of the Family
of Nations. If the Powers cannot keep one another
in check, no rules of law will have any force, since an
over-powerful State will naturally try to act according
to discretion and disobey the law. As there is not
and never can be a central political authority above the
Sovereign States that could enforce the rules of the
Law of Nations, a balance of power must prevent any
member of the Family of Nations from becoming omni-
potent. The history of the times of Louis XIV. and
Napoleon I. shows clearly the soundness of this principle.2
(2) The second moral is that International Law can
develop progressively only when international politics,
1 The general arbitration treaties writers of great authority who

concluded in August 1911 by the vigorously oppose this principle, as,
United States with Great Britain and for instance, Bulinerincq, "Praxis,
France have not yet been ratified, as Theorie und Codification des Vol-
the consent of the American Senate kerrechts" (1874), pp. 40-50. On
is previously required. the principle itself see Donnadieu,
a Attention ought to be drawn to " Essaisur la Thdorie de 1'Equilibre"
the fact that, although the neces- (1900), and Dupuis, " Le Principe
sity of a balance of power is gene- d'Equilibre et de Concert Europden "
rally recognised, there are some (1909).
especially intervention, are made on the basis of real

State interests. Dynastic wars belong to the past, as
do interventions in favour of legitimacy. It is neither
to be feared, nor to be hoped, that they should occur
again in the future. But if they did, they would hamper
the development of the Law of Nations in the future as
they have done in the past.
(3) The third moral is that the principle of nation-
ality isof such force that it is fruitless to try to stop its
victory. Wherever a community of many millions of
individuals, who are bound together by the same blood,
language, and interests, become so powerful that they
think it necessary to have a State of their own, in which
they can live according to their own ideals and can
build up a national civilisation, they will certainly get
that State sooner or later. What international politics
can, and should, do is to enforce the rule that minorities
of individuals of another race shall not be outside the
law, but shall be treated on equal terms with the majority.
States embracing a population of several nationalities
can exist and will always exist, as many examples show.
(4) The fourth moral is that every progress in the
development of International Law wants due time to
ripen. Although one must hope that the time will
come when war will entirely disappear, there is no
possibility of seeing this hope realised in our time. The
first necessities of an eternal peace are that the surface
of the earth should be shared between States of the
same standard of civilisation, and that the moral ideas
of the governing classes in all the States of the world
should undergo such an alteration and progressive de-
velopment as would create the conviction that arbitral
awards and decisions of courts of justice are alone
adequate means for the settlement of international
differences. Eternal peace is an ideal, and in the
very term " ideal " is involved the conviction of the
impossibility of its realisation in the present, although
VOL. I. V
it is a duty to aim constantly at such realisation. The

Permanent Court of Arbitration at the Hague, now
established by the Hague Peace Conference of 1899, is
an institution that can bring us nearer to such realisa-
tion than ever could have been hoped. And codifica-
tion of parts of the Law of Nations, following the codi-
fication of the rules regarding land warfare and the
codification comprised in the Declaration of London,
will in due time arrive, and will make the legal basis of
international intercourse firmer, broader, and more
manifest than before.1
(5) The fifth moral is that the progress of Inter-
national Law depends to a great extent upon whether
the legal school of International Jurists prevails over
the diplomatic school.2 The legal school desires Inter-
national Law to develop more or less on the lines of
Municipal Law, aiming at the codification of firm, de-
cisive, and unequivocal rules of International Law, and
working for the establishment of international Courts
for the purpose of the administration of international
justice. The diplomatic school, on the other hand,
considers International Law to be, and prefers it to
remain, rather a body of elastic principles than of firm
and precise rules. The diplomatic school opposes the
establishment of international Courts because it con-
siders diplomatic settlement of international disputes,
and failing this arbitration, preferable to international
administration of justice by international Courts com-
posed of permanently appointed judges. There is, how-
ever, no doubt that international Courts are urgently
needed, and that the rules of International Law require
now such an authoritative interpretation and adminis-
tration as only an international Court can supply.
1 See Oppenheim, " Die Zukunft better denomination. They must,
des Volkerrechts " (1911) where some howeyer, not be confounded with the
progressive steps are discussed which three schools of the " Naturalists,"
the future may realise. " Positivists," and " Grotians," de-
2 I name these schools " diplo- tails concerning which will be given
matic " and " legal " for want of below, §§ 55-57.
SCIENCE OF THE LAW OF NATIONS 83
(6) The sixth, and last, moral is that the progressive

development of International Law depends chiefly upon
the standard of public morality on the one hand, and,
on the other, upon economic interests. The higher the
standard of public morality rises, the more will Inter-
national Law progress. And the more important inter-
national economic interests grow, the more International
Law will grow. For, looked upon from a certain stand-
point, International Law is, just like Municipal Law, a
product of moral and of economic factors, and at the
same time the basis for a favourable development of
moral and economic interests. This being an indis-
putable fact, it may, therefore, fearlessly be maintained
that an immeasurable progress is guaranteed to Inter-
national Law, since there are eternal moral and economic
factors working in its favour.
Ill
THE SCIENCE OF THE LAW OF NATIONS
Phillimore, I. , Preface to the first edition— Lawrence, §§ 31-36— Manning,

pp. 21-65— Halleck, I. pp. 12, 15, 18, 22, 25, 29, 34, 42— Walker,
History, I. pp. 203-337, and "The Science of International Law"
(1893), passim— Taylor, §§ 37-48— Wheaton, §§ 4-13— Bivier in Holtzen-
dorff, I. pp. 337-475— Nys, I. pp. 213-328— Martens, I. §§ 34-38— Fiore,
I. Nos. 53-88, 164-185, 240-272— Calvo, I. pp. 27-34, 44-46, 51-55, 61-
63, 70-73, 101-137— Bonfils, Nos. 147-153— Despagnet, Nos. 28-35—
Ullmann, § 18— Kaltenborn, " Die Vorlaufer des Hugo Grotius" (1848)—
Holland, Studies, pp. 1-58, 168-175— Westlake, Chapters, pp. 23-77—
Ward, " Enquiry into the Foundation and History of the Law of
Nations," 2 vols. (1795) — Nys, "Le droit de la guerre et les precurseurs
de Grotius" (1882), "Notes pour servir h, 1'histoire . . . du droit
international en Angleterre" (1888), "Les origines du droit inter-
national" (1894) — Wheaton, " Histoire des progres du droit des gens en
Europe" (1841)— Oppenheim in A.J. I. (1908), pp. 313-356— Pollock
in the Cambridge Modern History, vol. XII. (1910), pp. 703-729— See also
the bibliographies enumerated below in § 61.
§ 52. The science of the modern Law of Nations Fore

commences from Grotius's work, " De Jure Belli ac
Pacis libri III.," because in it a fairly complete system
84 SCIENCE OF THE LAW OF NATIONS
of International Law was for the first time built up

as an independent branch of the science of law. But
there were many writers before Grotius who wrote on
special parts of the Law of Nations. They are therefore
commonly called " Forerunners of Grotius." The most
important of these forerunners are the following : (1)
Legnano, Professor of Law in the University of Bologna,
who wrote in 1360 his book " De bello, de represaliis,
et de duello," which was, however, not printed before
1477 ; (2) Belli, an Italian jurist and statesman, who
published in 1563 his book, " De re militari et de bello " ;
(3) Brunus, a German jurist, who published in 1548 his
book, " De legationibus " ; (4) Victoria, Professor in
the University of Salamanca, who published in 1557 his
" Eelectiones theologicae," l which partly deals with the
Law of War ; (5) Ayala, of Spanish descent but born
in Antwerp, a military judge in the army of Alexandro
Farnese, the Prince of Parma. He published in 1582
his book, " De jure et officiis bellicis et disciplina mili-
tari "; (6) Suarez, a Spanish Jesuit and Professor at
Coimbra, who published in 1612 his " Tractatus de
legibus et de legislatore," in which (II. c. 19, n. 8) for
the first time the attempt is made to found a law be-
tween the States on the fact that they form a com-
munity of States ; (7) Gentilis (1552-1608), an Italian
jurist, who became Professor of Civil Law in Oxford.
He published in 1585 his work, " De legationibus," in
1588 and 1589 his " Commentationes de jure belli," and
in 1598 an enlarged work on the same matter under the
title " De jure belli libri ties." 2 His " Advocatio His-
panica " was edited, after his death, in 1613 by his
brother Scipio. Gentilis's book " De jure belli " sup-
1 See details in Holland, Studies, " Albericus Gentilis und seine
pp. 51-52. Bedeutung fur das Volkerrecht"
2 Re-edited in 1877 by Professor (1896) ; Phillipson in The Journal
Holland. On Gentilis, see Holland, of the Society of Comparative Lcgis-
Studies, pp. 1-391 ; Westlake, lation, New ' Series, XII. (1912),
Chapters, pp. 33-36; Walker, pp. 52-80 ; Balch in A.J. V. (1911),
History, I. pp. 249-277 ; Thamm, pp. 665-679.
plies, as Professor Holland shows, the model and the

framework of the first and third book of Grotius's " De
Jure Belli ac Pacis." " The first step "—Holland rightly
says — " towards making International Law what it is
was taken, not by Grotius, but by Gentilis."
§ 53. Although Grotius owes much to Gentilis, he Grotius.
is nevertheless the greater of the two and bears by
right the title of " Father of the Law of Nations."
Hugo Grotius was born at Delft in Holland in 1583.
He was from his earliest childhood known as a " won-
drous child " on account of his marvellous intellectual
gifts and talents. He began to study law at Leyden
when only eleven years old, and at the age of fifteen he
took the degree of Doctor of Laws at Orleans in France.
He acquired a reputation, not only as a jurist, but also
as a Latin poet and a philologist. He first practised
as a lawyer, but afterwards took to politics and became
involved in political and religious quarrels which led to
his arrest in 1618 and condemnation to prison for life.
In 1621, however, he succeeded in escaping from prison
and went to live for ten years in France. In 1634 he
entered into the service of Sweden and became Swedish
Minister in Paris. He died in 1645 at Rostock in Ger-
many on his way home from Sweden, whither he had
gone to tender his resignation.
Even before he had the intention of writing a book
on the Law of Nations Grotius took an interest in matters
international. For in 1609, when only twenty- four
years old, he published — anonymously at first — a short
treatise under the title " Mare liberum," in which he
contended that the open sea could not be the property
of any State, whereas the contrary opinion was gene-
rally prevalent.1 But it was not until fourteen years
1 See details with regard to the twelfth chapter of the work " De
controversy concerning the free- jure praedae," written in 1604 but
dom of the open sea below, §§ 248- never published by Grotius ; it was
250. Grotius's treatise " Mare not printed till 1868. See below,
liberum " is — as we know now — the § 250.
later that Grotius began, during his exile in France, to

write his " De Jure Belli ac Pacis libri III.," which was
published, after a further two years, in 1625, and of
which it has rightly been maintained that no other
book, with the single exception of the Bible, has ever
exercised a similar influence upon human minds and
matters. The whole development of the modern Law
of Nations itself, as well as that of the science of the
Law of Nations, takes root from this for ever famous
book. Grotius's intention was originally to write a
treatise on the Law of War, since the cruelties and law-
lessness ofwarfare of his time incited him to the work.
But thorough investigation into the matter led him
further, and thus he produced a system of the Law of
Nature and Nations. In the introduction he speaks of
many of the authors before him, and he especially
quotes Ayala and Gentilis. Yet, although he recog-
nises their influence upon his work, he is nevertheless
aware that his system is fundamentally different from
those of his forerunners. There was in truth nothing
original in Grotius's start from the Law of Nature for
the purpose of deducing therefrom rules of a Law of
Nations. Other writers before his time, and in especial
Gentilis, had founded their works upon it. But nobody
before him had done it in such a masterly way and with
such a felicitous hand. And it is on this account that
Grotius bears not only, as already mentioned, the title
of " Father of the Law of Nations," but also that of
" Father of the Law of Nature."
Grotius, as a child of his time, could not help starting
from the Law of Nature, since his intention was to find
such rules of a Law of Nations as were eternal, un-
changeable, and independent of the special consent of
the single States. Long before Grotius, the opinion was
generally prevalent that above the positive law, which
had grown up by custom or by legislation of a State,
there was in existence another law which had its roots

in human reason and which could therefore be dis-
covered without any knowledge of positive law. This
law of reason was called Law of Nature or Natural Law.
But the system of the Law of Nature which Grotius
built up and from which he started when he commenced
to build up the Law of Nations, became the most im-
portant and gained the greatest influence, so that
Grotius appeared to posterity as the Father of the Law
of Nature as well as that of the Law of Nations.
Whatever we may nowadays think of this Law of
Nature, the fact remains unshaken that for more than
two hundred years after Grotius jurists, philosophers,
and theologians firmly believed in it. And there is
no doubt that, but for the systems of the Law of Nature
and the doctrines of its prophets, the modern Consti-
tutional Law and the modern Law of Nations would
not be what they actually are. The Law of Nature
supplied the crutches with whose help history has
taught mankind to walk out of the institutions of the
Middle Ages into those of modern times. The modern
Law of Nations in especial owes its very existence l to
the theory of the Law of Nature. Grotius did not deny
that there existed in his time already a good many
customary rules for the international conduct of the
States, but he expressly kept them apart from those
rules which he considered the outcome of the Law of
Nature. He distinguishes, therefore, between the natural
Law of Nations on the one hand, and, on the other hand,
the customary Law of Nations, which he calls the volun-
tary Law of Nations. The bulk of Grotius's interest is
concentrated upon the natural Law of Nations, since
he considered the voluntary of minor importance. But
nevertheless he does not quite neglect the voluntary
1 See Pollock in The Journal of the Society of Comparative Legislation,
New Series, III. (1901), p. 206.
Law of Nations. Although he mainly and chiefly lays

down the rules of the natural Law of Nations, he always
mentions also voluntary rules concerning the different
matters.
Grotius's influence was soon enormous and reached
over the whole of Europe. His book l went through
more than forty-five editions, and many translations
have been published.
zouche. § 54. But the modern Law of Nations has another,
though minor, founder besides Grotius, and this is an
Englishman, Richard Zouche 2 (1590-1660), Professor of
Civil Law at Oxford and a Judge of the Admiralty
Court. A prolific writer, the book through which he
acquired the title of " Second founder of the Law of
Nations/' appeared in 1650 and bears the title : " Juris
et judicii fecialis, sive juris inter gentes, et quaestionum
de eodem explicatio, qua, quae ad pacem et bellum inter
diversos principes aut populos spectant, ex praecipuis
historico jure peritis exhibentur." This little book has
rightly been called the first manual of the positive Law
of Nations. The standpoint of Zouche is totally dif-
ferent from that of Grotius in so far as, according to
him, the customary Law of Nations is the most im-
portant part of that law, although, as a child of his
time, he does not at all deny the existence of a natural
Law of Nations. It must be specially mentioned that
Zouche is the first who used the term jus inter gentes
for that new branch of law. Grotius knew very well
and says that the Law of Nations is a law between the
States, but he called it jus gentium, and it is due to his
influence that until Bentham nobody called the Law of
Nations International Law.
The distinction between the natural Law of Nations,
1 See Rivier in Holtzendorff, I. p. of the Society of Comparative Lcgis-
412. The last English translation is lation, New Series, IX. (1908), pp.
that of 1854 by William Whewell. 281-304.
2 See Phillipson in The Journal
chiefly treated by Grotius, and the customary or volun-

tary Law of Nations, chiefly treated by Zouche,1 gave
rise in the seventeenth and eighteenth centuries to
three different schools 2 of writers on the Law of Nations
— namely, the " Naturalists/' the " Positivists," and
the " Grotians."
§ 55. " Naturalists/' or " Deniers of the Law of
Nations/' is the appellation of those writers who deny
that there is any positive Law of Nations whatever as
the outcome of custom or treaties, and who maintain
that all Law of Nations is only a part of the Law of
Nature. The leader of the Naturalists is Samuel Pufen-
dorf (1632-1694), who occupied the first chair which
was founded for the Law of Nature and Nations at a
University — namely, that at Heidelberg. Among the
many books written by Pufendorf, three are of im-
portance for the science of International Law :— (1)
" Elementa jurisprudentiae universalis," 1666 ; (2)
" De jure naturae et gentium/' 1672 ; (3) " De officio
hominis et civis juxta legem naturalem," 1673. Start-
that ingNatural
from the assertion Law is toof be
Hobbes,
divided" De
intoGive," XIV.Law4,
Natural
of individuals and of States, and that the latter is the
Law of Nations, Pufendorf 3 adds that outside this
Natural Law of Nations no voluntary or positive Law
of Nations exists which has the force of real law (quod
quidem legis proprie dictae vim habeat, quae gentes tam-
quam a superior e profecta stringat).
1 It should be mentioned that especial prize law, were of the

already before Zouche, another greatest importance for the develop-
Englishman, John Selden, in his ment of maritime international law.
" De jure naturali et gentium secun- See Wynne, " Life of Sir Leoline
dum disciplinam ebraeorum" (1640), Jenkins," 2 vols. (1740).
recognised the importance of the 2 These three schools of writers
positive Law of Nations. The sue- must not be confounded with the
cessor of Zouche as a Judge of the division of the present international
Admiralty Court, Sir Leoline Jenkins jurists into the diplomatic and legal
(1625-1684) ought also to be men- schools ; see above, § 51, No. 5.
tioned. His opinions concerning 3 De jure naturae et gentium, II.
questions of maritime law, and in c. 3, § 22.
The most celebrated follower of Pufendorf is the

German philosopher, Christian Thomasius (1655-1728),
who published in 1688 his " Institutiones jurispru-
dentiae divinae," and in 1705 his " Fundamenta juris
naturae et gentium." Of English Naturalists may be
mentioned Francis Hutcheson (" System of Moral
Philosophy," 1755) and Thomas Rutherford ("Insti-
tutes of Natural Law ; being the Substance of a Course
of Lectures on Grotius read in St. John's College, Cam-
bridge," 2vols. 1754^1756). Jean Barbeyrac (1674-
1744), the learned French translator and commentator
of the works of Grotius, Pufendorf, and others, and,
further, Jean Jacques Burlamaqui (1694-1748), a
native of Geneva, who wrote the " Principes du
droit de la nature et des gens," ought likewise to be
mentioned.
The Posi- § 56. The " Positivists " are the antipodes of the
tivists. Naturalists. They include all those writers who, in
contradistinction to Hobbes and Pufendorf, not only
defend the existence of a positive Law of Nations as
the outcome of custom or international treaties, but
consider it more important than the natural Law of
Nations, the very existence of which some of the Posi-
tivists deny, thus going beyond Zouche. The positive
writers had not much influence in the seventeenth
century, during which the Naturalists and the Grotians
carried the day, but their time came in the eighteenth
century.
Of seventeenth-century writers, the Germans Rachel
and Textor must be mentioned. Rachel published in
1676which
in his twohe dissertations, " De ofjureNations
defines the Law naturae aset the
gentium,"
law to
which a plurality of free States are subjected, and
which comes into existence through tacit or express
consent of these States (Jus plurium liberalium gentium
pacto sive placito expressim aut tacite initum, quo utili-
tatis gratia sibi in vicem obligantur). Textor published

in 1680 his " Synopsis juris gentium/'
In the eighteenth century the leading Positivists,
Bynkershoek, Moser, and Martens, gained an enormous
influence.
Cornelius van Bynkershoek1 (1673-1743), a cele-
brated Dutch jurist, never wrote a treatise on the Law
of Nations, but gained fame through three books deal-
ing with different parts of this Law. He published in
1702 "De dominio maris," in 1721 " De foro lega-
torum," in 1737 " Quaestionum juris publici libri II."
According to Bynkershoek the basis of the Law of
Nations is the common consent of the nations which
finds its expression either in international custom or in
international treaties.
Johann Jakob Moser (1701-1785), a German Pro-
fessor of Law, published many books concerning the
Law of Nations, of which three must be mentioned :
(1) " Grundsatze des jetzt iiblichen Volkerrechts in
Friedenszeiten," 1750 ; (2) " Grundsatze des jetzt
iiblichen Volkerrechts in Kriegszeiten," 1752 ; (3)
' Versuch des neuesten europaischen Volkerrechts in
Friedens- und Kriegszeiten," 1777-1780. Moser's books
are magazines of an enormous number of facts which
are of the greatest value for the positive Law of Nations.
Moser never fights against the Naturalists, but he is
totally indifferent towards the natural Law of Nations,
since to him the Law of Nations is positive law only
and based on international custom and treaties.
Georg Friedrich von Martens (1756-1821), Professor
of Law in the University of Gottingen, also published
many books concerning the Law of Nations. The most
important is his " Precis du droit des gens moderne
de FEurope," published in 1789, of which William
1 See Pbillipson in The Journal of the Society of Comparative Legislation,
New Series, IX. (1908), pp. 27-49.
Cobbett published in 1795 at Philadelphia an English

translation, and of which as late as 1864 appeared a
new edition at Paris with notes by Charles Verge.
Martens began the celebrated collection of treaties
which goes under the title " Martens, Recueil des
Traites," and is continued to our days.1 The influence
of Martens was great, and even at the present time is
considerable. He is not an exclusive Positivist, since
he does not deny the existence of natural Law of Nations,
and since he sometimes refers to the latter in case he
finds a gap in the positive Law of Nations. But his
interest is in the positive Law of Nations, which he
builds up historically on international custom and
treaties.
The § 57. The " Grotians " stand midway between the
ins' Naturalists and the Positivists. They keep up the dis-
tinction ofGrotius between the natural and the volun-
tary Law of Nations, but, in contradistinction to
Grotius, they consider the positive or voluntary of
equal importance to the natural, and they devote,
therefore, their interest to both alike. Grotius's influ-
ence was so enormous that the majority of the authors
of the seventeenth and eighteenth centuries were
Grotians, but only two of them have acquired a Euro-
pean reputation — namely, Wolff and Vattel.
Christian Wolff (1679-1754), a German philosopher
who was first Professor of Mathematics and Philosophy
in the Universities of Halle and Marburg and after-
wards returned to Halle as Professor of the Law of
Nature and Nations, was seventy years of age when,
in 1749, he published his " Jus gentium methodo scien-
tifica pertractatum." In 1750 followed his " Insti-
tutiones juris naturae et gentium/' Wolff's conception
of the Law of Nations is influenced by his conception
1 Georg Friedrich von Martens is author of the " Causes celebres de
not to be confounded with his droit des gens" and of the "Guide
nephew Charles de Martens, the diplomatique."
of the Civitas gentium maxima. The fact that there is

a Family of Nations in existence is strained by Wolff
into the doctrine that the totality of the States forms
a world-State above the component member States, the
so-called civitas gentium maxima. He distinguishes four
different kinds of Law of Nations — namely, the natural,
the voluntary, the customary, and that which is ex-
pressly created by treaties. The latter two kinds are
alterable, and have force only between those single
States between which custom and treaties have created
them. But the natural and the voluntary Law of
Nations are both eternal, unchangeable, and univer-
sally binding upon all the States. In contradistinction
to Grotius, who calls the customary Law of Nations
" voluntary/' Wolff names " voluntary " those rules of
the Law of Nations which are, according to his opinion,
tacitly imposed by the civitas gentium maxima, the
world-State, upon the member States.
Emerich de Vattel1 (1714-1767), a Swiss from
Neuchatel, who entered into the service of Saxony and
became her Minister at Berne, did not in the main intend
any original work, but undertook the task of intro-
ducing Wolff's teachings concerning the Law of Nations
into the courts of Europe and to the diplomatists. He
published in 1758 his book, " Le droit des gens, ou
principes de la loi naturelle appliques a la conduite et
aux affaires des Nations et des Souverains." But it
must be specially mentioned that Vattel expressly
rejects Wolff's conception of the civitas gentium maxima
in the preface to his book. Numerous editions of
VatteFs book have appeared, and as late as 1863 Pradier-
Fodere re-edited it at Paris. An English translation
by Chitty appeared in 1834 and went through several
editions. His influence was very great, and in diplo-
1 See Montmorency in The Journal lation, New Series, X. (1909), pp.
of the Society of Comparative Legis- 17-39.
matic circles his book still enjoys an unshaken

authority.
§ 53^ Some details concerning the three schools of
Nine- the Naturalists, Positivists, and Grotians were neces-
Twentieth sary, because these schools are still in existence. I do
Centuries. no^ nowever, intend to give a list of writers on special
subjects, and the following list of treatises comprises
the more important ones only.
(1) BRITISH TREATISES

William Oke Manning : Commentaries on the Law of Nations,
1839 ; new ed. by Sheldon Amos, 1875.
Archer Poison : Principles of the Law of Nations, 1848 ; 2nd
ed. 1853.
Richard Wildman : Institutes of International Law, 2 vols.
1849-1850.
Sir Robert Phillimore : Commentaries upon International Law,
4 vols. 1854-1861 ; 3rd ed. 1879-1888.
Sir Travers Twiss : The Law of Nations, etc., 2 vols. 1861-1863 ;
2nd ed., vol. I. (Peace) 1884, vol. II. (War) 1875 ; French
translation, 1887-1889.
Sheldon Amos : Lectures on International Law, 1874.
Sir Edward Shepherd Creasy : First Platform of International
Law, 1876.
William Edward Hall : Treatise on International Law, 1880 ;
6th ed. 1909 (by Atlay).
Sir Henry Sumner Maine : International Law, 1883 ; 2nd ed.
1894 (Whewell Lectures, not a treatise).
James Lorimer : The Institutes of International Law, 2 vols.
1883-1884 ; French translation by Nys, 1885.
Leone Levi : International Law, 1888.
T. J. Lawrence : The Principles of International Law, 1895 ;
4th ed. 1910.
Thomas Alfred Walker : A Manual of Public International
Law, 1895.
Sir Sherston Baker : First Steps in International Law, 1899.
F. E. Smith: International Law, 1900; 4th ed. 1911 (by
Wylie).
John Westlake : International Law, vol. I. (Peace) 1904, vol. II.
(War) 1907 ; 2nd ed. vol. I. 1910.
SCIENCE OP THE LAW OF NATIONS 95
(2) NORTH AMERICAN TREATISES

James Kent : Commentary on International Law, 1826 ; English
edition by Abdy, Cambridge, 1888.
Henry Wheaton : Elements of International Law, 1836 ; 8th
American ed. by Dana, 1866 ; 3rd English ed. by Boyd,
1889 ; 4th English ed. by Atlay, 1904.
Theodore D. Woolsey : Introduction to the Study of International
Law, 1860 ; 6th ed. by Th. S. Woolsey, 1891.
Henry W. Halleck : International Law, 2 vols. 1861 ; 4th
English ed. by Sir Sherston Baker, 1907.
Francis Wharton : A Digest of the International Law of the
United States, 3 vols. 1886.
George B. Davis : The Elements of International Law, 1887 ;
3rd ed. 1908.
Hannis Taylor : A Treatise on International Public Law, 1901.
George Grafton Wilson and George Fox Tucker : International
Law, 1901 ; 5th ed. 1910.
Edwin Maxey : International Law, with illustrative cases, 1906.
John Basset Moore : A Digest of International Law, 8 vols. 1906.
George Grafton Wilson : Handbook of International Law, 1910.
(3) FRENCH TREATISES

Funck-Brentano et Albert Sorel : Precis du Droit des Gens,
1877 ; 2nd ed. 1894.
P. Pradier-Fodere : Traite de Droit International Public, 8 vols.
1885-1906.
Henry Bonfils : Manuel de Droit International Public, 1894 ;
5th ed. by Fauchille, 1908.
Georges Bry : Precis elementaire de Droit International Public ;
5th ed. 1906.
Frantz Despagnet : Cours de Droit International Public, 1894 ;
4th ed. by De Boeck, 1910.
Robert Piedelievre : Precis de Droit International Public, 2 vols.
1894-1895.
A. Merignhac : Traite de Droit Public International, vol. I.
1905 ; vol. II. 1907.
(4) GERMAN TREATISES

Theodor Schmalz : Europaisches Volkerrecht, 1816.
Joliann Ludwig Kliiber : Droit des Gens moderne, 1819 ;
German ed. under the title of Europaisches Volkerrecht in
1821 ; last German ed. by Morstadt in 1851, and last French
ed. by Ott in 1874.
Karl Heinrich Ludivig Poelitz : Practisches (europaisches),

Volkerrecht, 1828.
Friedrich Saalfeld : Handbuch des positiven Volkerrechts,
1833.
August Wilhelm He/ter : Das europaische Volkerrecht der
Gegenwart, 1844 ; 8th ed. by Geffcken, 1888 ; French trans-
lations byBergson in 1851 and Geffcken in 1883.
Heinrich Bernhard Oppenheim : System des Volkerrechts, 1845 ;
2nd ed. 1866.
Johann Caspar Bluntschli : Das moderne Volkerrecht der
civilisirten Staaten als Rechtsbuch dargestellt, 1868 ; 3rd
ed. 1878 ; French translation by Lardy, 5th ed. 1895.
Adolf Hartmann : Institutionen des praktischen Volkerrechts
in Friedenszeiten, 1874 ; 2nd ed. 1878.
Franz von Holtzendorf : Handbuch des Volkerrechts, 4 vols.
1885-1889. Holtzendorff is the editor and a contributor,
but there are many other contributors.
August von Bulmerincq : Das Volkerrecht, 1887.
Karl Gareis : Institutionen des Volkerrechts, 1888 ; 2nd. ed. 1901.
E. Ullmann : Volkerrecht, 1898 ; 2nd ed. 1908.
Franz von Liszt : Das Volkerrecht, 1898 ; 6th ed. 1910.
(5) ITALIAN TREATISES

Luigi Casanova : Lezioni di diritto internazionale, published
after the death of the author by Cabella, 1853 ; 3rd. ed. by
Brusa, 1876.
Pasquale Fiore : Trattato di diritto internazionale publico,
1865 ; 4th ed. in 3 vols. 1904 ; French translation of the
2nd ed. by Antoine, 1885.
Giuseppe Carnazza-Amari : Trattato di diritto internazionale di
pace, 2 vols. 1867-1875 ; French translation by Montanari-
Pevest, 1881.
Antonio del Bon : Institution! del diritto publico internazionale,
1868.
Giuseppe Sandona : Trattato di diritto internazionale moderno,
2 vols. 1870.
Gian Battista Pertille : Elementi di diritto internazionale,
2 vols. 1877.
Augusto Pierantoni : Trattato di diritto internazionale, vol. I.
1881. (No further volume has appeared.)
Giovanni Lomonaco : Trattato di diritto internazionale publico,
1905.
Giulio Diena : Principt di diritto internazionale, Parte Prima,
Diritto internaziole publico, 1908.
(6) SPANISH AND SPANISH-AMERICAN TREATISES

Andres Bello : Principios de derecho de gentes (internacional),
1832 ; last ed. in 2 vols. by Silva, 1883.
Jose Maria de Pando : Elementos del derecho internacional,
published after the death of the author, 1843-1844.
Antonio Eiquelme : Elementos de derecho publico internacional,
etc. ; 2 vols. 1849.
Carlos Calvo : Le Droit International, etc. (first edition in
Spanish, following editions in French), 1868 ; 5th ed. in
6 vols. 1896.
Amancio Alcorta : Curso de derecho internacional publico, vol. I.
1886 ; French translation by Lehr, 1887.
Marquis de Olivart : Trattato y notas de derecho internacional
publico, 4 vols. 1887 ; 4th ed. 1903-1904.
Luis Gesteso y Acosta : Curso de derecho internacional publico,
1894.
Miguel Cruchaga : Nociones de derecho internacional, 1899 ;
2nd ed. 1902.
Manuel Torres Campos : Elementos de derecho internacional
publico ; 2nd. ed. 1904.
(7) TREATISES OF AUTHORS OF OTHER NATIONALITIES

Frederick Kristian Bornemann : Forelaesninger over den positive
Folkeret, 1866.
Friedrich von Martens : Volkerrecht, 2 vols. 1883 ; a German
translation by Berghohm of the Russian original. A French
translation by Leo in 3 vols. appeared in the same year.
The Russian original went through its 5th ed. in 1905.
Jan Helenus Ferguson : Manual of International Law, etc., 2 vols.
1884. The author is Dutch, but the work is wTitten in English.
Alphonse Rivier : Lehrbuch des Volkerrechts, 1894 ; 2nd ed.
1899, and the larger work in two vols. under the title :
Principes du Droit des Gens, 1896. The author of these
two excellent books was a Swiss who taught International
Law at the University of Brussels.
H. Matzen : Forelaesninger over den positive Folkeret, 1900.
Ernest Nys : Le droit international, 3 vols. 1904-1906. The
author of this exhaustive treatise is a Belgian jurist whose
researches in the history of the science of the Law of Nations
have gained him far-reaching reputation.1
J. De Louter : Het Stellig Volkenrecht, 2 vols. 1910.
1 The first volume of Nys contains as well as monographs, and I have
in its pp. 251-328 an exhaustive enu- much pleasure in referring my
meration of all the more important readers to this learned work,
works on International Law, treatises
VOL. I. G
The § 59. The Science of the Law of Nations, as left by

fheeLaw°f the French Kevolution, developed progressively during
i°nthaetiOUS *ke nineteenth century under the influence of three
Nine- factors. The first factor is the endeavour, on the
Twentieth whole sincere, of the Powers since the Congress of Vienna
ase?epree-s to submit to the rules of the Law of Nations. The
sented by second factor
treatises. .is the many* law-making° treaties which
arose during this century. And the last, but not indeed
the least factor, is the downfall of the theory of the Law
of Nature, which after many hundreds of years has at
last been shaken off during the second half of this
century.
When the nineteenth century opens, the three schools
of the Naturalists, the Positivists, and the Grotians are
still in the field, but Positivism l gains slowly and
gradually the upper hand, until at the end it may be
said to be victorious, without, however, being omni-
potent. The most important writer 2 up to 1836 is
Kliiber, who may be called a Positivist in the same
sense as Martens, for he also applies the natural Law
of Nations to fill up the gaps of the positive. Wheaton
appears in 1836 with his " Elements/' and, although an
American, at once attracts the attention of the whole
of Europe. He may be called a Grotian. And the
same may be maintained of Manning, whose treatise
appeared in 1839, and is the first that attempts a survey
of British practice regarding sea warfare based on the
judgments of Sir William Scott (Lord Stowell). Heffter,
whose book appeared in 1844, is certainly a Positivist,
although he does not absolutely deny the Law of Nature.
In exact application of the juristic method, Heffter's
book excels all former ones, and all the following authors
1 Austin and his followers who 2 I do not intend to discuss the
hold that the rules of International merits of writers on special sub-
Law are rules of " positive morality " jects, and I mention only the authors
must be considered Positivists, al- of the most important treatises
though they do not agree to Inter- which are written in, or translated
national Law being real law. into, English, French, or German.
are in a sense standing on his shoulders. In Phillimore,

Great Britain sends in 1854 a powerful author into the
arena, who may, on the whole, be called a Positivist of
the same kind as Martens and Kliiber. Generations to
come will consult Phillimore's volumes on account of
the vast amount of material they contain and the sound
judgment they exhibit. And the same is valid with
regard to Sir Tr avers Twiss, whose first volume ap-
peared in 1861. Halleck's work, which appeared in
the same year, is of special importance as regards war,
because the author, who was a General in the service
of the United States, gave to this part his special atten-
tion. The next prominent author, the Italian Fiore,
who published his system in 1865 and may be called a
Grotian, is certainly the most prominent Italian author,
and the new edition of his work will for a long time to
come be consulted. Bluntschli, the celebrated Swiss-
German author, published his book in 1867 ; it must,
in spite of the world-wide fame of its author, be con-
sulted with caution, because it contains many rules
which are not yet recognised rules of the Law of Nations.
Calvo's work, which first appeared in 1868, contains an
invaluable store of facts and opinions, but its juristic
basis is not very exact.
From the seventies of the nineteenth century the
influence of the downfall of the theory of the Law of
Nature becomes visible in the treatises on the Law of
Nations, and therefore real positivistic treatises make
their appearance. For the Positivism of Zouche,
Bynkershoek, Martens, Kliiber, Heffter, Phillimore, and
Twiss was no real Positivism, since these authors recog-
nised a natural Law of Nations, although they did not
make much use of it. Real Positivism must entirely
avoid a natural Law of Nations. We know nowadays
that a Law of Nature does not exist. Just as the so-
called Natural Philosophy had to give way to real
natural science, so the Law of Nature had to give way

to jurisprudence, or the philosophy of the positive law.
Only a positive Law of Nations can be a branch of the
science of law.
The first real positive treatise known to me is Hart-
mann's " Institutionen des praktischen Volkerrechts in
Friedenszeiten," which appeared in 1874, but is hardly
known outside Germany. In 1880 Hall's treatise ap-
peared, and at once won the attention of the whole
world ; it is one of the best books on the Law of
Nations that have ever been written. Lorimer, whose
two volumes appeared in 1883 and 1884, is a Natu-
ralist pure and simple, but his work is nevertheless
of value. The Russian Martens, whose two volumes
appeared in German and French translations in 1883
and at once put their author in the forefront of
the authorities, certainly intends to be a real Posi-
tivist, but traces of Natural Law are nevertheless
now and then to be found in his book. A work of a
special kind is that of HoltzendorfT, the first volume
of which appeared in 1885. Holtzendorfl himself is the
editor and at the same time a contributor to the work,
but there are many other contributors, each of them
dealing exhaustively with a different part of the Law
of Nations. The copious work of Pradier-Fodere,
which also began to appear in 1885, is far from being
positive, although it has its merits. Wharton's three
volumes, which appeared in 1886, are not a treatise,
but contain the international practice of the United
States. Bulmerincq's book, which appeared in 1887,
gives a good survey of International Law from the
positive point of view. In 1894 three French jurists,
Bonfils, Despagnet, and Piedelievre, step into the arena ;
their treatises are comprehensive and valuable, but not
absolutely positive. On the other hand, the English
authors Lawrence and Walker, whose excellent manuals
appeared in 1895, are real Positivists. Of the greatest

value are the two volumes of Bivier which appeared
in 1896; they are full of sound judgment, and will
influence the theory and practice of International Law
for a long time to come. Liszt's short manual, which
in its first edition made its appearance in 1898, is posi-
tive throughout, well written, and suggestive. Ull-
mann's work, which likewise appeared in its first edition
in 1898, is an excellent and comprehensive treatise
which thoroughly discusses all the more important
problems and points from the positive standpoint.
Hannis Taylor's comprehensive treatise, which ap-
peared in 1901, is likewise thoroughly positive, and
so are the serviceable manuals of Wilson and Maxey.
Of great value are the two volumes of Westlake which
appeared in 1904 and 1907 ; they represent rather
a collection of thorough monographs than a treatise,
and will have great and lasting influence. A work
of particular importance is the "Digest" of John
Basset Moore, which appeared in 1906, comprises
eight volumes, and contains the international practice
of the United States in a much more exhaustive form
than the work of Wharton ; it is an invaluable work
which must be consulted on every subject. The same
is valid with regard to the three volumes of Nys, who
may be characterised as a Grotian, and whose work is
full of information on the historical and literary side
of the problems.1
1 On the task and method of the the positive standpoint, see Oppen-
science of International Law from heim in A.J. II. (1908), pp. 313-356.
§ 60. COLLECTIONS OF TREATIES

(1) GENERAL COLLECTIONS
Leibnitz : Codex iuris gentium diplomaticus (1693) ; Mantissa
codicis iuris gentium diplomatic! (1700).
Bernard : Recueil des traites, etc. 4 vols. (1700).
Eymer : Foedera etc. inter reges angliae et alios quosvis im-
peratores . . . ab anno 1101 ad nostra usque tempora
habita et tradata, 20 vols. 1704-1718 (Contains documents
from 1101-1654).
Dumont : Corps universel diplomatique, etc., 8 vols. (1726-1731).
Rousset : Supplement au corps universel diplomatique de
Dumont, 5 vols. (1739).
Schmauss : Corpus iuris gentium academicum (1730).
Wenck : Codex iuris gentium recentissimi, 3 vols. (1781, 1786,
1795).
Martens : Recueil de Traites d' Alliance, etc., 8 vols. (1791-1808) ;
Nouveau Recueil de Traites d' Alliance, etc., 16 vols. (1817-
1842) ; Nouveaux Supplements au Recueil de Traites et
d'autres Actes remarquables, etc., 3 vols. (1839-1842) ; Nou-
veau Recueil General de Traites, Conventions et autres Actes
remarquables, etc., 20 vols. (1843-1875) ; Nouveau Recueil
General de Traites et autres Actes relatifs aux Rapports de
droit international; Deuxieme S6rie, 35 vols. (1876-1908);
Nouveau Recueil General de Traites et autres Actes relatifs
aux Rapports de droit international, Troisieme Serie, vol.
I. 1908, continued up to date. Present editor, Heinrich
Triepel, professor in the University of Kiel in Germany.
Ghillany : Diplomatisches Handbuch, 3 vols. (1855-1868).
Martens et Cussy : Recueil manuel, etc., 7 vols. (1846-1857) ;
continuation by Geffcken, 3 vols. (1857-1885).
British and Foreign State Papers : Vol. I. 1814, continued up
to date, one volume yearly.
Das Staatsarchiv : Sammlung der officiellen Actenstiicke zur
Geschichte der Gegenwart, vol. I. 1861, continued up to
date, one volume yearly.
Archives diplomatiques : Recueil mensuel de diplomatic, d'his-
toire, et de droit international, first and second series, 1861-
1900, third series from 1901 continued up to date (4 vols.
yearly).
Recueil International des Traites du XXe Siecle : Edited by Des-
camps and Renault since 1901.
Sti-upp : Urkunden zur Geschichte des Volkerrechts, 2 vols. (1911).
(2) COLLECTIONS OF ENGLISH TREATIES ONLY

Jenkinson : Collection of all the Treaties, etc., between Great
Britain and other Powers from 1648 to 1783, 3 vols. (1785).
Chalmers : A Collection of Maritime Treaties of Great Britain
and other Powers, 2 vols. (1790).
Hertslet : Collection of Treaties and Conventions between
Great Britain and other Powers (vol. I. 1820, continued to
date).
Treaty Series : Vol. I. 1892, and a volume every year.
§ 61. BIBLIOGRAPHIES
Ompleda : Litteratur des gesammten Volkerrechts, 2 vols.
(1785).
Kamptz : Neue Litteratur des Volkerrechts seit 1784 (1817).
Kliiber : Droit des gens moderne de 1'Europe (Appendix) (1819).
Miruss : Das Europaische Gesandschafterecht, vol. II. (1847).
Mohl : Geschichte und Litteratur des Staatswissenschaften,
vol. I. pp. 337-475 (1855).
W oolsey : Introduction to the Study of International Law
(6th ed. 1891), Appendix I.
Rivier : pp. 393-523 of vol. I. of HoltzendorfFs Handbuch des
Volkerrechts (1885).
Stoerk : Die Litteratur des internatiorialen Rechts von 1884-
1894 (1896).
Olivart : Catalogue d'une bibliotheque de droit international
(1899).
Nys : Le droit international, vol. I. (1904), pp. 213-328.
§ 62. PERIODICALS
Revue de droit international et de legislation comparee. It
has appeared in Brussels since 1869, one volume yearly.
Present editor, Edouard Rolin.
Revue generale de droit international public. It has appeared in
Paris since 1894, one volume yearly. Founder and present
editor, Paul Fauchille.
Zeitschrift fiir internationales Recht. It has appeared in Leipzig
since 1891, one volume yearly. Present editor, Theodor
Niemeyer.
Annuaire de 1'Institut de Droit International, vol. I. 1877. A

volume appears after each meeting of the Institute.
Kokusaiho-Zasshi, the Japanese International Law Review.
It has appeared in Tokio since 1903.
Revista de Derecho Internacional y politica exterior. It
has appeared in Madrid since 1905, one volume yearly.
Editor, Marquis de Olivart.
Rivista di Diritto Internazionale. It has appeared in Rome
since 1906, one volume yearly. Editors, D. Anzilotti,
A. Ricci-Busatti, and L. A. Senigallia.
Zeitschrift fur Volkerrecht und Bundestaatsrecht. It has ap-
peared in Breslau since 1906, one volume yearly. Editors,
Joseph Kohler, L. Oppenheim, and F. Holldack.
The American Journal of International Law. It has appeared in
Washington since 1907, one volume yearly. Editor, James
Brown Scott.
Essays and Notes concerning International Law frequently
appear also in the Journal du droit international prive et de
la Jurisprudence comparee (Clunet), the Archiv fur offent-
liches Recht, The Law Quarterly Review, The Law Magazine
and Review, The Juridical Review, The Journal of the
Society of Comparative Legislation, The American Law
Review, the Annalen des deutschen Reiches, the Zeitschrift
fur das privat- und offendliche Recht der Gegenwart
(Griinhut), the Revue de droit public et de la science politique
(Larnaude), the Annales des sciences pohtiques, the Archivio
giuridico, the Jahrbuch des offentlichen Rechts, and many
others.
PART I
THE SUBJECTS OF THE LAW OF

NATIONS
CHAPTER I
INTERNATIONAL PERSONS
I
SOVEREIGN STATES AS INTERNATIONAL PERSONS
Vattel, I. §§ 1-12— Hall, § 1— Lawrence, § 42— Phillimore, I. §§ 61-69—

Twiss, I. §§ 1-11— Taylor, § 117— Walker, § 1— Westlake, I. pp. 1-5, 20-.
21— Wheaton, §§ 16-21— Ullraann, § 19— Heffter, § 15— Holtzendorff in
Holtzeudorff, II. pp. 5-1 1— Bonfils, Nos. 160-164— Despagnet, Nos. 69-
74— Pradier-Fodere", I. Nos. 43-81— Nys, I. pp. 329-356— Rivier, I. § 3—
Calvo, I. §§ 39-41— Fiore, I. Nos. 305-309, and Code, Nos. 51-77—
Martens, I. §§ 53-54— Mdrignhac, I. pp. 114-231, and II. pp. 5, 154-221—
Moore, I. § 3.
§ 63. The conception of International Persons is Real and

derived from the conception of the Law of Nations.
As this law is the body of rules which the civilised p
States consider legally binding in their intercourse,
every State which belongs to the civilised States, and
is, therefore, a member of the Family of Nations, is
an International Person. Sovereign States exclusively
are International Persons — i.e. subjects of International
Law. There are, however, as will be seen, full and
not-full Sovereign States. Full Sovereign States are
perfect, not-full Sovereign States are imperfect Inter-
national Persons, for not-full Sovereign States are for
some parts only subjects of International Law. v.
In contradistinction to Sovereign States which are
real, there are also apparent, but not real, International
Persons — namely, Confederations of States, insurgents
recognised as a belligerent Power in a civil war, and the
Holy See. All these are not, as will be seen,1 real
1 See below, § 88 (Confederations of States), § 106 (Holy See), and vol.
II. §§ 59 and 76 (Insurgents).
107
108 INTERNATIONAL PERSONS
subjects of International Law, but in some points are

treated as though they were International Persons,
without thereby becoming members of the Family of
Nations.
It must be specially mentioned that the character
of a subject of the Law of Nations and of an Inter-
national Person can be attributed neither to monarchs,
diplomatic envoys, private individuals, or churches,
nor to chartered companies, nations, or races after the
loss of their State (as, for instance, the Jews or the
Poles), and organised wandering tribes.1
concep- § 64. A State proper — in contradistinction to so-
stSe. tie called Colonial States — is in existence when a people
is settled in a country under its own Sovereign Govern-
ment. The conditions which must obtain for the
existence of a State are therefore four :
There must, first, be a people. A people is an
aggregate of individuals of both sexes who live to-
gether as a community in spite of the fact that they
may belong to different races or creeds, or be of different
colour.
There must, secondly, be a country in which the
people has settled down. A wandering people, such as
the Jews were whilst in the desert for forty years before
their conquest of the Holy Land, is not a State. But
it matters not whether the country is small or large ;
it may consist, as with City States, of one town only.
There must, thirdly, be a Government — that is, one
or more persons who are the representatives of the
people and rule according to the law of the land. An
anarchistic community is not a State.
There must, fourthly and lastly, be a Sovereign
1 Most jurists agree with this character for corporations; and West-
opinion, but there are some who lake, Chapters, p. 2, and Fiore, Code,
disagree. Thus, for instance, Heffter Nos. 61, 61-64, claim it for indi-
(§ 48) claims for monarchs the viduals. The matter will be dis-
character of subjects of the Law of cussed below in §§ 288, 290, 344, 384.
Nations ; Lawrence (§ 42) claims that
SOVEREIGN STATES AS INTERNATIONAL PERSONS 109
Government. Sovereignty is supreme authority, an

authority which is independent of any other earthly
authority. Sovereignty in the strict and narrowest
sense of the term includes, therefore, independence all
round, within and without the borders of the country.
§ 65. A State in its normal appearance does possess Not-full
independence all round and therefore full sovereignty. g^teerseign
Yet there are States in existence which certainly do
not possess full sovereignty, and are therefore named
not-full Sovereign States. All States which are under
the suzerainty or under the protectorate of another
State or are member States of a so-called Federal State,
belong to this group. All of them possess supreme
authority and independence with regard to a part of
the tasks of a State, whereas with regard to another
part they are under the authority of another State.
Hence it is that the question is disputed whether such
not-full Sovereign States can be International Persons
and subjects of the Law of Nations at all.1
That they cannot be full, perfect, and normal sub-
jects of International Law there is no doubt. But it
is wrong to maintain that they can have no international
position whatever and can never be members of the
Family of Nations at all. If we look at the matter as
it really stands, we observe that they actually often
enjoy in many points the rights and fulfil in other points
the duties of International Persons. They often send
and receive diplomatic envoys or at least consuls. They
often conclude commercial or other international treaties.
Their monarchs enjoy the privileges which according to
the Law of Nations the Municipal Laws of the different
States must grant to the monarchs of foreign States.
1 The question will be discussed sidered as International Persons at
again below, §§ 89, 91, 93, with all. Westlake, I. p. 21, answers it
regard to each kind of not-full affirmatively by stating : " It is not
Sovereign States. The object of necessary for a State to be inde-
discussion here is the question pendent in order to be a State of
whether such States can be con- International Law. "
No other explanation of these and similar facts can be

given except that these not-full Sovereign States are
in some way or another International Persons and
subjects of International Law. Such imperfect Inter-
national Personality is, of course, an anomaly ; but the
very existence of States without full sovereignty is an
anomaly in itself. And history teaches that States
without full sovereignty have no durability, since they
either gain in time full sovereignty or disappear totally
as separate States and become mere provinces of other
States. So anomalous are these not-full Sovereign
States that no hard-and-fast general rule can be laid
down with regard to their position within the Family
of Nations, since everything depends upon the special
case. What may be said in general concerning all the
States without full sovereignty is that their position
within the Family of Nations, if any, is always more
or less overshadowed by other States. But their partial
character of International Persons comes clearly to light
when they are compared with so-called Colonial States,
such as the Dominion of Canada or the Commonwealth
of Australia. Colonial States have no international
position l whatever ; they are, from the standpoint of
the Law of Nations, nothing else than colonial portions
of the mother-country, although they enjoy perfect
self-government, and may therefore in a sense be called
States. The deciding factor is that their Governor,
who has a veto, is appointed by the mother-country, and
that the Parliament of the mother-country could with-
draw self-government from its Colonial States and
legislate directly for them.
§ 66. The distinction between States full Sovereign
bility of
1 Therefore treaties concluded by with foreign States without the con-
Canada with foreign States are not sent of the mother-country, they
Canadian treaties, but treaties con- would become internationally part-
eluded by Great Britain for Canada. sovereign and thereby obtain a
Should Colonial States ever acquire certain international position,
the right to conclude treaties directly
and not-full Sovereign is based upon the opinion that sove-

sovereignty is divisible, so that the powers connected contested.
with sovereignty need not necessarily be united in one
hand. But many jurists deny the divisibility of sove-
reignty and maintain that a State is either sovereign or
not. They deny that sovereignty is a characteristic of
every State and of the membership of the Family of
Nations. It is therefore necessary to face the con-
ception of sovereignty more closely. And it will be
seen that there exists perhaps no conception the mean-
ing of which is more controversial than that of sove-
reignty. Itis an indisputable fact that this conception,
from the moment when it was introduced into political
science until the present day, has never had a meaning
which was universally agreed upon.1
§ 67. The term Sovereignty was introduced into Meaning
political science by Bodin in his celebrated work, " De reignty'in
la republique," which appeared in 1577. Before Bodin, ^n^nd
at the end of the Middle Ages, the word souverain 2 was seven-
used in France for an authority, political or other, which centuries,
had no other authority above itself. Thus the highest
courts were called Cours Souverains. Bodin, however,
gave quite a new meaning to the old conception. Being
under the influence and in favour of the policy of cen-
tralisation initiated by Louis XI. of France (1461-1483),
the founder of French absolutism, he defined sovereignty
as " the absolute and perpetual power within a State."
Such power is the supreme power within a State with-
out any restriction whatever except the Command-
ments of God and the Law of Nature. No constitution
can limit sovereignty, which is an attribute of the king
1 The literature upon sovereignty Sovereignty since Rousseau," 1900 ;
is extensive. The following authors Rehm, " Allgemeine Staatslehre,"
give a survey of the opinions of the 1899, §§ 10-16. See also Maine,
different writers: — Dock," Der Souve- " Early Institutions," pp. 342-400.
ranitats-begriff von Bodin bis zu 2 Souverain is derived either from
Friedrich dem Grossen," 1897 ; the Latin supcranus or from svprema
Merriam, " History of the Theory of potestas.
in a monarchy and of the people in a democracy. A

Sovereign is above positive law. A contract only is
binding upon the Sovereign, because the Law of Nature
commands that a contract shall be binding.1
The conception of sovereignty thus introduced was
at once accepted by writers on politics of the sixteenth
century, but the majority of these writers taught that
sovereignty could be restricted by a constitution and
by positive law. Thus at once a somewhat weaker
conception of sovereignty than that of Bodin made its
appearance. On the other hand, in the seventeenth
century, Hobbes went even beyond Bodin, maintaining 2
that a Sovereign was not bound by anything and had
a right over everything, even over religion. Whereas a
good many publicists followed Hobbes, others, especially
Pufendorf, denied, in contradistinction to Hobbes, that
sovereignty includes omnipotence. According to Pufen-
dorf, sovereignty is the supreme power in a State, but
not absolute power, and sovereignty may well be con-
stitutionally restricted.3 Yet in spite of all the differ-
ences indefining sovereignty, all authors of the sixteenth
and seventeenth centuries agree that sovereignty is
indivisible and contains the centralisation of all power
in the hands of the Sovereign, whether a monarch or
the people itself in a republic. Yet the way for another
conception of sovereignty is prepared by Locke, whose
:{ Two Treatises on Government " appeared in 1689,
and paved the way for the doctrine that the State itself
is the original Sovereign, and that all supreme powers
of the Government are derived from this sovereignty
of the State.
§ 68. In the eighteenth century matters changed
again. The fact that the several hundred reigning
1 See Bodin, " De la republique," 3 See Pufendorf, " De jure naturae
I. c. 8. et gentium," VII. c. 6, §§ 1-13.
2 See Hobbes, " De cive," c. 6,
§§12-15.
princes of the member-States of the German Empire in the

had practically, although not theoretically, become £j*!th
more or less independent since the Westphalian Peace Century-
enforced the necessity upon publicists to recognise
a distinction between an absolute, perfect, full sove-
reignty, on the one hand, and, on the other, a relative,
imperfect, not-full or half-sovereignty. Absolute and
full sovereignty was attributed to those monarchs who
enjoyed an unqualified independence within and with-
out their States. Relative and not-full sovereignty, or
half-sovereignty, was attributed to those monarchs who
were, in various points of internal or foreign affairs of
State, more or less dependent upon other monarchs.
By this distinction the divisibility of sovereignty was
recognised. And when in 1787 the United States of
America turned from a Confederation of States into a
Federal State, the division of sovereignty between the
Sovereign Federal State and the Sovereign member-
States appeared. But it cannot be maintained that
divisibility of sovereignty was universally recognised in
the eighteenth century. It suffices to mention Rous-
seau, whose " Contrat Social " appeared in 1762 and
defended again the indivisibility of sovereignty. Rous-
seau's conception of sovereignty is essentially that of
Hobbes, since it contains absolute supreme power, but
he differs from Hobbes in so far as, according to Rous-
seau, sovereignty belongs to the people only and ex-
clusively, isinalienable, and therefore cannot be trans-
ferred from the people to any organ of the State.
§ 69. During the nineteenth century three different Meaning
factors of great practical importance have exercised ?eignty~i
their influence on the history of the conception of thenNjne
sovereignty. Century.
The first factor is that, with the exception of Russia,
all civilised Christian monarchies during this period
turned into constitutional monarchies. Thus identifica-
VOL. I. H
tion of sovereignty with absolutism belongs practically

to the past, and the fact was during the nineteenth
century generally recognised that a sovereign monarch
may well be restricted in the exercise of his powers by
a Constitution and positive law.
The second factor is, that the example of a Federal
State set by the United States has been followed by
Switzerland, Germany, and others. The Constitution
of Switzerland as well as that of Germany declares
decidedly that the member-States of the Federal State
remain Sovereign States, thus indirectly recognising the
divisibility of sovereignty between the member-States
and the Federal State according to different matters.
The third and most important factor is, that the
science of politics has learned to distinguish between
sovereignty of the State and sovereignty of the organ
which exercises the powers of the State. The majority
of publicists teach henceforth that neither the monarch,
nor Parliament, nor the people is originally Sovereign
in a State, but the State itself. Sovereignty, we say
nowadays, is a natural attribute of every State as a
State. But a State, as a Juristic Person, wants organs
to exercise its powers. The organ or organs which
exercise for the State powers connected with sovereignty
are said to be sovereign themselves, yet it is obvious
that this sovereignty of the organ is derived from the
sovereignty of the State. And it is likewise obvious
that the sovereignty of a State may be exercised by the
combined action of several organs, as, for instance, in
Great Britain, King and Parliament are the joint ad-
ministrators ofthe sovereignty of the State. And it is,
thirdly, obvious that a State can, as regards certain
matters, have its sovereignty exercised by one organ
and as regards other matters by another organ.
In spite of this condition of things, the old contro-
versy regarding divisibility of sovereignty has by no
means died out. It acquired a fresh stimulus, on the

one hand, through Switzerland and Germany turning
into Federal States, and, on the other, through the
conflict between the United States of America and her
Southern member-States. The theory of the con-
current sovereignty of the Federal State and its member-
States, as defended by " The Federalist " (Alexander
Hamilton, James Madison, and John Jay) in 1787, was
in Germany taken up by Waitz,1 whom numerous
publicists followed. The theory of the indivisibility
of sovereignty was defended by Calhoun,2 and many
European publicists followed him in time.
§ 70. From the foregoing sketch of the history of Result of
the conception of sovereignty it becomes apparent that troversy
there is not and never was unanimity regarding this regarding
conception. It is therefore no wonder that the en- reignty.
deavour has been made to eliminate the conception of
sovereignty from the science of politics altogether, and
likewise to eliminate sovereignty as a necessary char-
acteristic ofstatehood, so that States with and without
sovereignty would in consequence be distinguishable.
It is a fact that sovereignty is a term used without any
well-recognised meaning except that of supreme author-
ity. Under these circumstances those who do not want
to interfere in a mere scholastic controversy must cling
to the facts of life and the practical, though abnormal
and illogical, condition of affairs. As there can be no
doubt about the fact that there are semi-independent
States in existence, it may well be maintained that
sovereignty is divisible.
1 Poiitik, 1862. 2 A Disquisition on Government, 1851.
II
RECOGNITION OF STATES AS INTERNATIONAL PERSONS
Hall, §§ 2 and 26— Lawrence, §§ 44-47— Phillimore, II. §§ 10-23— Taylor, §§

153-160— Walker, § 1— Westlake, I. pp. 49-58— Wheaton, § 27— Moore,
§§ 27-75— Bluntschli, §§ 28-38— Hartmann, § 11— Heffter, § 23— Holt-
zendorff in Holtzendorff, II. pp. 18-33— Liszt, § 5— Ullmann, §§ 29-30—
Bonfils, Nos. 195-213— Bespagnet, Nos. 79-85— Pradier-Foddre, I. Nos.
136-145— Nys, I. pp. 69-115— Me"ngnhac, I. pp. 320-329— Rivier, I. § 3—
Martens, I. §§ 63-6-1— Le Normand, " La reconnaissance Internationale
et ses diverses applications" (1899).
§ 71. As the basis of the Law of Nations is the

dition of common consent of the civilised States, statehood alone
ship^the does not include membership of the Family of Nations.
Nations0* ^nere are States in existence, although their number
decreases gradually, which are not, or not fully, mem-
bers of that family, because their civilisation, if any,
does not enable them and their subjects to act in
conformity with the principles of International Law.
Those States which are members are either original
members because the Law of Nations grew up gradu-
ally between them through custom and treaties, or
they are members which have been recognised by the
body of members already in existence when they were
born.1 For every State that is not already, but wants
to be, a member, recognition is therefore necessary.
A State is and becomes an International Person through
recognition only and exclusively.
Many writers do not agree with this opinion. They
maintain that, if a new civilised State comes into exis-
tence either by breaking off from an existing recognised
State, as Belgium did in 1831, or otherwise, such new
State enters of right into the Family of Nations and
becomes of right an International Person.2 They do
1 See above, §§ 27 and 28. 26 ; Ullmann, § 29 ; Gareis, p. 64 ;
* See, for instance, Hall, §§ 2 and Hivier, I. p. 57.
RECOGNITION OF STATES 117
not deny that practically such recognition is necessary

to enable every new State to enter into official inter-
course with other States. Yet they assert that theo-
retically every new State becomes a member of the
Family of Nations ipso facto by its rising into existence,
and that recognition supplies only the necessary evi-
dence for this fact.
If the real facts of international life are taken into
consideration, this opinion cannot stand. It is a rule
of International Law that no new State has a right
towards other States to be recognised by them, and
that no State has the duty to recognise a new State.
It is generally agreed that a new State before its recog-
nition cannot claim any right which a member of the
Family of Nations has towards other members. It can,
therefore, not be seen what the function of recognition
could be if a State entered at its birth really of right
into the membership of the Family of Nations. There
is no doubt that statehood itself is independent of re-
cognition. International Law does not say that a State
is not in existence as long as it is not recognised, but it
takes no notice of it before its recognition. Through
recognition only and exclusively a State becomes an
International Person and a subject of International Law.
§ 72. Recognition is the act through which it be- Mode of
comes apparent that an old State is ready to deal with
a new State as an International Person and a member
of the Family of Nations. Recognition is given either
expressly or tacitly. If a new State asks formally for
recognition and receives it in a formal declaration of
any kind, it receives express recognition. On the other
hand, recognition is tacitly and indirectly given when
an old State enters officially into intercourse with the
new, be it by sending or receiving a diplomatic envoy,1
1 Whether the sending of a consul includes recognition is discussed
below, § 428. ' /
or by concluding a treaty, or by any other act through

which it becomes apparent that the new State is actu-
ally treated as an International Person.
But no new State has by International Law a right
to demand recognition, although practically such recog-
nition cannot in the long run be withheld, because
without it there is no possibility of entering into inter-
course with the new State. The interests of the old
States must suffer quite as much as those of the new
State, if recognition is for any length of time refused,
and practically these interests in time enforce either
express or tacit recognition. History nevertheless re-
cords many cases of deferred recognition,1 and, apart
from other proof, it becomes thereby apparent that
the granting or the denial of recognition is not a
matter of International Law but of international
policy.
It must be specially mentioned that recognition by
one State is not at all binding upon other States, so
that they must follow suit. But in practice such an
example, if set by one or more Great Powers and at a
time when the new State is really established on a sound
basis, will make many other States at a later period
give their recognition too.
Recogni- § 73. Recognition will as a rule be given without
condi-nder an7 conditions whatever, provided the new State is
tions. safely and permanently established. Since, however,
the granting of recognition is a matter of policy, and
not of law, nothing prevents an old State from making
the recognition of a new State dependent upon the
latter fulfilling certain conditions. Thus the Powers
assembled at the Berlin Congress in 1878 recognised
Bulgaria, Montenegro, Servia, and Eoumania under the
condition only that these States did not2 impose any
1 See the cases enumerated by striction on the personal supremacy
Rivier, I. p. 58. of the respective States. See below,
2 This condition contains a re- § 128.
RECOGNITION OF STATES 119
religious disabilities on any of their subjects.1 The

meaning of such conditional recognition is not that
recognition can be withdrawn in case the condition is
not complied with. The nature of the thing makes
recognition, if once given, incapable of withdrawal.
But conditional recognition, if accepted by the new
State, imposes the internationally legal duty upon such
State of complying with the condition ; failing which a
right of intervention is given to the other party for the
purpose of making the recognised State comply with
the imposed condition.
§ 74. Recognition is of special importance in those
cases where a new State tries to establish itself by timely and
breaking off from an existing State in the course of a
revolution. And here the question is material whether
a new State has really already safely and permanently
established itself or only makes efforts to this end
« without having already succeeded. That in every case
tof civil war a foreign State can recognise the insurgents
as a belligerent Power if they succeed in keeping a part
of the country in their hands and set up a Government
of their own, there is no doubt. But between this
recognition as a belligerent Power and the recognition
of these insurgents and their part of the country as a
new State, there is a broad and deep gulf. And the
question is precisely at what exact time recognition of
a new State may be given instead of the recognition as
a belligerent Power. For an untimely and precipitate
recognition as a new State is a violation of the dignity 2
of the mother-State, to which the latter need not patiently
submit.
In spite of the importance of the question, no hard-
1 See arts. 5, 25, 35, and 44 of the correct, since intervention is (see
Treaty of Berlin of 1878, in Martens, below, § 134) dictatorial interference
N.R.G. 2nd Ser. III. p. 449. in the affairs of another State. The
3 It is frequently maintained that question of recognition of the belli-
such untimely recognition contains gerency of insurgents is exhaustively
an intervention. But this is not treated by Westlake, I. pp. 50-57.
and-fast rule can be laid down as regards the time

when it can be said that a State created by revolution
has established itself safely and permanently. The
characteristic of such safe and permanent establishment
may be found either in the fact that the revolutionary
State has utterly defeated the mother-State, or that
the mother-State has ceased to make efforts to subdue
the revolutionary State, or even that the mother-State,
in spite of its efforts, is apparently incapable of bringing
the revolutionary back under its sway.1 Of course, as
soon as the mother-State itself recognises the new
State, there is no reason for other States to withhold
any longer their recognition, although they have even
then no legal obligation to grant it.
The breaking off of the American States from their
European mother-States furnishes many illustrative ex-
amples. Thus the recognition of the United States by
France in 1778 was precipitate. But when in 1782
England herself recognised the independence of the
United States, other States could accord recognition
too without giving offence to England. Again, when
the South American colonies of Spain declared their
independence in 1810, no Power recognised the new
States for many years. When, however, it became
apparent that Spain, although she still kept up her
claims, was not able to restore her sway, the United
States recognised the new States in 1822, and England
followed the example in 1824 and 1825. 2
state § 75. Recognition of a new State must not be
tionfrf1 confounded with other recognitions. Recognition of
ttoctionto insurgents as a belligerent Power has already been
other
Recogni-
mentioned. Besides this, recognition of a change in the
tions. When,
1 in 1903, Panama fell away a See Gibbs, "Recognition: a
from Colombia, the United States Chapter from the History of the
immediately recognised the new Re- North American and South Ameri-
public as an independent State. For can States" (1863), and Moore, I. §§
the motives of this quick action, see 28-36.
Moore, I. § 344, pp. 4G and following.
CHANGES IN CONDITION 121
form of the government or of change in the title of an

old State is a matter of importance. But the granting
or refusing of these recognitions has nothing to do with
recognition of the State itself. If a foreign State
refuses the recognition of a change in the form of the
government of an old State, the latter does not thereby
lose its recognition as an International Person, although
no official intercourse is henceforth possible between
the two States as long as recognition is not given either
expressly or tacitly. And if recognition of a new title 1
of an old State is refused, the only consequence is that
such State cannot claim any privileges connected with
the new title.
Ill
CHANGES IN THE CONDITION OF INTERNATIONAL
PERSONS
Grotius, II. c. 9, §§ 5-13— Pufendorf, VIII. c. 12— Vattel, I. § 11— Hall, § 2—
Halleck, I. pp. 89-92— Phillimore, I. §§ 124-137— Taylor, § 163—
Westlake, I. pp. 58-66— Wheaton, §§ 28-32— Moore, I. §§ 76-79—
Bluntschli, §§ 39-53— Hartmann, §§ 12-13— Heffter, § 24— Holtzendorff
in Holtzendorff, II. pp. 21-23— Liszt, § 5— Ullmann, §§ 31 and 35—
Bonfils, Nos. 214-215— Despagnet, Nos. 86-89— Pradier-Fodere, I. Nos.
146-157— Nys, I. pp. 399-401— Rivier, I. § 3— Calvo, I. §§ 81-106—
Fiore, I. Nos. 321-331, and Code, Nos. 119-141— Martens, I. §§ 65-69.
§ 76. The existence of International Persons is important
exposed to the flow of things and times. There is a dS
constant and gradual change in their citizens through
deaths and births, emigration, and immigration. There
is a frequent change in those individuals who are at
the head of the States, and there is sometimes a change
in the form of their governments, or in their dynasties
if they are monarchies. There are sometimes changes
in their territories through loss or increase of parts
thereof, and there are sometimes changes regarding
their independence through partial or total loss of the
] See below, § 119.
same. Several of these and other changes in the con-

dition and appearance of International Persons are
indifferent to International Law, although they may
be of great importance for the inner development of
the States concerned and directly or indirectly for
international policy. Those changes, on the other hand,
which are, or may be, of importance to International
Law must be divided into three groups according to
their influence upon the character of the State con-
cerned as an International Person. For some of these
changes affect a State as an International Person,
others do not ; again, others extinguish a State as an
International Person altogether.
changes § 77. A State remains one and the same International
?not States ^>erson m sPê °^ changes in its headship, in its dynasty,
as inter- in its form, in its rank and title, and in its territory.
Persons. These changes cannot be said to be indifferent to Inter-
national Law. Although strictly no notification to and
recognition by foreign Powers are necessary, according
to the Law of Nations, in case of a change in the head-
ship of a State or in its entire dynasty, or if a monarchy
becomes a republic or vice versa, no official intercourse
is possible between the Powers refusing recognition
and the State concerned. Although, further, a State
can assume any title it likes, it cannot claim the privi-
leges of rank connected with a title if foreign States
refuse recognition. And although, thirdly, a State can
dispose according to discretion of parts of its territory
and acquire as much territory as it likes, foreign Powers
may intervene for the purpose of maintaining a balance
of power or on account of other vital interests.
But whatever may be the importance of such changes,
they neither affect a State as an International Person,
nor affect the personal identity of the States concerned.
France, for instance, has retained her personal identity
from the time the Law of Nations came into existence
CHANGES IN CONDITION 123
until the present day, although she acquired and lost

parts of her territory, changed her dynasty, was a king-
dom, a republic, an empire, again a kingdom, again
a republic, again an empire, and is now, finally as it
seems, a republic. All her international rights and
duties as an International Person remained the very
same throughout the centuries in spite of these im-
portant changes in her condition and appearance.
Even such loss of territory as occasions the reduction
of a Great Power to a small Power, or such increase
of territory and strength as turns a small State into
a Great Power, does not affect a State as an Inter-
national Person. Thus, although through the events
of the years 1859-1861 Sardinia acquired the whole
territory of the Italian Peninsula and turned into the
Great Power of Italy, she remained one and the same
International Person.
§ 78. Changes which affect States as International changes
Persons are of different character. states^!
(1) As in a Real Union the member-States of the JjJJJoMi
union, although fully independent, make one Inter- Persons.
national Person,1 two States which hitherto were separate
International Persons are affected in that character by
entering into a Real Union. For through that change
they appear henceforth together as one and the same
International Person. And should this union be dis-
solved, the member-States are again affected, for they
now become again separate International Persons.
(2) Other changes affecting States as International
Persons are such changes as involve a partial loss of
independence on the part of the States concerned.
Many restrictions may be imposed upon States with-
out interfering with their independence proper,2 but
certain restrictions involve inevitably a partial loss of
1 See below, § 87, where the char- 2 See below, §§ 126-127, where the
acter of the Real Union is fully different kinds of these restrictions
discussed. are discussed.
independence. Thus if a hitherto independent State

comes under the suzerainty of another State and be-
comes thereby a half-Sovereign State, its character as
an International Person is affected. The same is valid
with regard to a hitherto independent State which comes
under the protectorate of another State. Again, if
several hitherto independent States enter into a Federal
State, they transfer a part of their sovereignty to the
Federal State and become thereby part-Sovereign States.
On the other hand, if a vassal State or a State under
protectorate is freed from the suzerainty or protec-
torate, itis thereby affected as an International Person,
because it turns now into a full Sovereign State. And
the same is valid with regard to a member-State of a
Federal State which leaves the union and gains the
condition of a full Sovereign State.
(3) States which become permanently neutralised
are thereby also affected in their character as Inter-
national Persons, although their independence remains
untouched. But permanent neutralisation alters the
condition of a State so much that it thereby becomes
an International Person of a particular kind.
Extinction § 79. A State ceases to be an International Person
national wnen & ceases to exist. Theoretically such extinction
Persons, of International Persons is possible through emigration
or the perishing of the whole population of a State,
or through a permanent anarchy within a State. But
it is evident that such cases will hardly ever occur in
fact. Practical cases of extinction of States are :
Merger of one State into another, annexation after
conquest in war, breaking up of a State into several
States, and breaking up of a State into parts which
are annexed by surrounding States.
By voluntarily merging into another State, a State
loses all its independence and becomes a mere part of
another. In this way the Duchy of Courland merged
in 1795 into Russia, the two Principalities of Hohen-
SUCCESSION OF INTERNATIONAL PERSONS 125
zollern-Hecliingen and Hohenzollern-Sigmaringen in

1850 into Prussia, the Congo Free State in 1908 into
Belgium, and Korea in 1910 into Japan. And the same
is the case if a State is subjugated by another. In this
way the Orange Free State and the South African Ee-
public were absorbed by Great Britain in 1901. An
example of the breaking up of a State into different
States is the division of the Swiss canton of Basle into
Basel-Stadt and Basel-Land in 1833. And an example
of the breaking up of a State into parts which are an-
jnexed by surrounding States, is the absorption of
[Poland by Russia, Austria, and Prussia in 1795.
IV
SUCCESSION OF INTERNATIONAL PERSONS1

Grotius, II. c. 9 and 10— Pufendorf, VIII. c. 12—Hall, §§ 27-29— Phil limore,
I. § 137— Lawrence, § 49— Halleck, I. pp. 89-92— Taylor, §§ 164-
168— Westlake, I. pp. 68-83— Wharton, I. § 5— Moore, I. §§ 92-99—
Wheaton, §§ 28-32— Bluntschli, §§ 47-50— Hartmann, § 12— Heffter,
§ 25— Holtzendorff in Holtzendorff, II. pp. 33-47— Liszt, § 23— Ullmann,
§ 32— Bonfils, Nos. 216-233— Despagnet, Nos. 89-102— Pradier-Foddre",
I. Nos. 156-163— Nys, I. pp. 399-401— Rivier, I. § 3, pp. 69-75 and
p. 438— Calvo, I. §§ 99-103— Fiore, I. Nos. 349-366— Martens, I. § 67—
Appleton, " Des effets des annexions sur les dettes de 1'^tat de'membre'
ou annexe " (1895)— Huber, " Die Staatensuccession " (1898)— Keith,
" The Theory of State Succession, with special reference to English and
Colonial Law " (1907) — Cavaglieri, " La dottrina della successione
di stato a stato, &c." (1910) — Richards in The Law Magazine and
Review, XXVIII. (1903), pp. 129-141— Keith in Z.V. III. (1909), pp.
618-648— Hershey in A.J. V. (1911), pp. 285-297.
§ 80. Although there is no unanimity among the common

writers on International Law with regard to the so-
called succession of International Persons, nevertheless Succes-
the following common doctrine can be stated to exist, inter-
A succession of International Persons occurs when natlonal
Persons.
1 The following text treats only of Keith, " The Theory of State Suc-
the broad outlines of the subject, as cession, &c." (1907) ; the latter
the practice of the States has hardly writer's analysis of cases in Z.V.
settled more than general principles. III. (1909), pp. 618-648, is likewise
Details must be studied in Huber, very important.
41 Die Staatensuccession " (1898), and
one or more International Persons take the place of

another International Person, in consequence of certain
changes in the latter's condition.
Universal succession takes place when one Inter-
national Person is absorbed by another, either through
subjugation or through voluntary merger. And uni-
versal succession further takes place when a State
breaks up into parts which either become separate
International Persons of their own or are annexed by
surrounding International Persons.
Partial succession takes place, first, when a part of
the territory of an International Person breaks of! in
a revolt and by winning its independence becomes itself
an International Person ; secondly, when one Inter-
national Person acquires a part of the territory of an-
other through cession ; thirdly, when a hitherto full
Sovereign State loses part of its independence through
entering into a Federal State, or coming under suzerainty
or under a protectorate, or when a hitherto not-full
Sovereign State becomes full Sovereign ; fourthly, when
an International Person becomes a member of a Heal
Union or vice versa.
Nobody ever maintained that on the successor de-
volve all the rights and duties of his predecessor. But
after stating that a succession takes place, the respec-
tive writers try to educe the consequences and to make
out what rights and duties do, and what do not, devolve.
Several writers,1 however, contest the common doc-
trine and maintain that a succession of International
Persons never takes place. Their argument is that the
rights and duties of an International Person disappear
with the extinguished Person or become modified
according to the modifications an International Person
undergoes through losing part of its sovereignty.
1 See Gareis, pp. GO -70, who discusses the matter with great clearness,
and Liszt, § 23.
§ 81. If the real facts of life are taken into con- HOW far
sideration, the common doctrine cannot be upheld. To sk>n°es
say that succession takes place in such and such cases
and to make out afterwards what rights and duties
devolve, shows a wrong method of dealing with the
problem. It is certain that no general succession takes
place according to the Law of Nations. With the ex-
tinction ofan International Person disappear its rights
and duties as a person. But it is equally wrong to
maintain that no succession whatever occurs. For
nobody doubts that certain rights and duties actually
and really devolve upon an International Person from
its predecessor. And since this devolution takes place
through the very fact of one International Person fol-
lowing another in the possession of State territory, there
is no doubt that, as far as these devolving rights and
duties are concerned, a succession of one International
Person to the rights and duties of another really does
take place. But no general rule can be laid down con-
cerning all the cases in which a succession takes place.
These cases must be discussed singly.
§ 82. When a State merges voluntarily into another succes-
State — as, for instance, Korea in 1910 did into Japan — cons^
or when a State is subjugated byJ another State,'the q«enceof
latter remains one and Jtheto same International Person Absorp-
tion.
and the former becomes totally extinct as an Inter-
national Person. No succession takes place, therefore,
with regard to rights and duties of the extinct State
arising either from the character of the latter as an
International Person or from its purely political treaties.
Thus treaties of alliance or of arbitration or of neutrality
or of any other political nature fall to the ground with
the extinction of the State which concluded them.
They are personal treaties, and they naturally, legally,
and necessarily presuppose the existence of the con-
tracting State. But it is controversial whether treaties
of commerce, extradition, and the like, of the extinct

State remain valid and therefore a succession takes
place. The majority of writers correctly, I think,
answer the question in the negative, because such
treaties, although they are non-political in a sense,
possess some prominent political traits.1
A real succession takes place, however, first, with
regard to such international rights and duties of the
extinct State as are locally connected with its land,
rivers, main roads, railways, and the like. According
to the principle res transit cum suo onere, treaties of the
» extinct State concerning boundary lines, repairing of
main roads, navigation on rivers, and the like, remain
valid, and all rights and duties arising from such treaties
of the extinct State devolve on the absorbing Stated
A real succession, secondly, takes place with regard
1 On the whole question concern- ten years levy upon goods imported
ing the extinction of treaties in into Korea from foreign countries
consequence of the absorption of a or exported from Korea to foreign
State by another, see Moore, V. § 773, countries and upon foreign vessels
and below, § 548. When, in 1910, entering any of the open ports of
Korea merged into Japan, the latter Korea the same import or export
published a Declaration — see Martens, duties and the same tonnage dues as
N.R.G. 3rd Ser. IV. p. 26— contain- under the existing schedules. The
ing the following articles with regard same import or export duties and
to the treaty obligations of the tonnage dues as those to be levied
extinct State of Korea :— upon the aforesaid goods and vessels
1. Treaties hitherto concluded by will also for a period of ten years
Korea with foreign Powers ceasing to be applied in respect of goods im-
be operative, Japan's existing treaties ported into Korea from Japan or
will, so far as practicable, be applied exported from Korea to Japan and
to Korea. Foreigners resident in Japanese vessels entering any of the
Korea will, so far as conditions open ports of Korea.
permit, enjoy the same rights and 3. The Imperial Government of
immunities as in Japan proper, and Japan will also permit for a period
the protection of their legally of ten years vessels under flags of
acquired rights subject in all cases the Powers having treaties with
to the jurisdiction of Japan. The Japan to engage in the coasting
Imperial Government of Japan is trade between the open ports of
ready to consent that the jurisdiction Korea and between those ports and
in respect of the cases actually any open port of Japan.
pending in any foreign Consular 4. The existing open ports of
Court in Korea at the time the Korea, with the exemption of Mas-
Treaty of Annexation takes effect ampo, will be continued as open
shall remain in such Court until ports, and in addition Shiwiju will be
final decision. newly opened so that vessels, foreign
2. Independently of any conven- as well as Japanese, will there be
tional engagements formerly existing admitted and goods may be imported
on the subject, the Imperial Govern- into and exported from these ports.
ment of Japan will for a period of
to the fiscal property and the fiscal funds of the extinct

State. They both accrue to the absorbing State ipso
facto by the absorption of the extinct State.1 But the
debts2 of the extinct State must, on the other hand,
also be taken over by the absorbing State.3 The private
creditor of an extinct State certainly acquires no right 4
by International Law against the absorbing State, since
the Law of Nations is a law between States only and
exclusively. But if he is a foreigner, the right of pro-
tection due to his home State enables the latter to
exercise pressure upon the absorbing State for the
purpose of making it fulfil its international duty to take
over the debts of the extinct State. Some jurists5 go
so far as to maintain that the succeeding State must
take over the debts of the extinct State, even when
they are higher than the value of the accrued fiscal
property and fiscal funds. But I doubt whether in such
cases the practice of the States would follow that
opinion. On the other hand, a State which has subju-
gated another would be compelled 6 to take over even
1 This was recognised by the High ence with regard to this point.
Court of Justice in 1866 in the case (See Hall, § 29, and Westlake in The
of the United States v. Prioleau. Law Quarterly Revieio, XVII. (1901),
See Scott, "Cases on International pp. 392-401, XXXI. (1905), p. 335,
Law" (1902), p. 85. and now Westlake, I. pp. 74-82.)
2 See Moore, I. § 97, and Appleton, * This is the real portent of the
"Des effets des annexions de terri- judgment in the case of Cook v.
toires sur les dettes, &c." (1895). Sprigg, L.R. (1899), A.C. 572, and
3 This is almost generally recog- in the case of the West Rand
nised by writers on International Central Gold Mining Co. v. The King
Law and the practice of the States. (1905), 2 KB. 391. In so far as the
(See Huber, op. cit. pp. 156 and latter judgment denies the existence
282, note 449.) The Report of the of a rule of International Law that
Transvaal Concessions Commission compels a subjugator to pay the
(see British State Papers, South debts of the subjugated State, its
Africa, 1901, Cd. 623), although it arguments are in nowise decisive,
declares (p. 7), that " it is clear that An International Court would recog-
a State which has annexed another nise such a rule.
is not legally bound by any contracts 5 See Martens, I. § 67 ; Heffter,
made by the State which has ceased § 25 ; Huber, op. cit. p. 158.
to exist," nevertheless agrees that 6 See the Report of the Transvaal
"the modern usage of nations has Concession Commission, p. 9, which
tended in the acknowledgment of maintains the contrary. Westlake
such contracts." It may, however, (I. p. 78) adopts the reasoning of
safely be maintained that not a this report, but his arguments are
usage, but a real rule of International not decisive. The lending of money
Law, based on custom, is in exist- to a belligerent under ordinary
VOL. I. I
such obligations as have been incurred by the annexed

State for the immediate purpose of the war which led
to its subjugation.1
The case of a Federal State arising — like the Ger-
man Empire in 1871 — above a number of several hitherto
full Sovereign States also presents, with regard to many
points, a case of State succession.2 However, no hard-
and-fast rules can be laid down concerning it, since
everything depends upon the question whether the
Federal State is one which — like all those of America —
totally absorbs all international relations of the member-
States, or whether it absorbs — like the German Empire
and Switzerland — these relations to a greater extent
Succes- only.3
§ 83. When a State breaks up into fragments which
sion in
conse- themselves become States and International Persons,
quence of or which are annexed by surrounding States, it becomes
Dismem-
berment. extinct as an International Person, and the same rules
are valid as regards the case of absorption of one State
by another. A difficulty is, however, created when the
territory of the extinct State is absorbed by several
States. Succession actually takes place here too, first,
with regard to the international rights and duties
locally connected with those parts of the territory
which the respective States have absorbed. Succession
takes place, secondly, with regard to the fiscal property
and the fiscal funds which each of the several absorbing
States finds on the part of the territory it absorbs.
mercantile conditions — see Barclay to a private individual or to a com-
in The Law Quarterly Review, XXI. pany must be upheld by the sub-
(1905), p. 307 — is not prohibited by jugating State, is difficult to answer
International Law, although the in its generality. The merits of each
carriage of such funds in cash on case would seem to have to be taken
neutral vessels to the enemy falls into consideration. See Westlake, I.
under the category of carriage of
contraband, and can be punished by p. 82; Moore, I. § 98 ; Gidel, "Des
effets de 1'annexion sur les con-
the belligerents. (See below, Vol. II. cessions" (1904).
§ 352.) 2 See Huber, op. cit. pp. 163-169,
1 The question how far conces- and3 See
Keith,below, op. cit. § 89.pp. 92-98.
sions granted by a subjugated State
SUCCESSION OF INTEKNATIONAL PEKSONS 131
And the debts of the extinct State must be taken over.

But the case is complicated through the fact that there
are several successors to the fiscal property and funds,
and the only rule which can be laid down is that pro-
portionate parts of the debts must be taken over by
the different successors.
When — as in the case of Sweden-Norway in 1905 —
a Real Union l is dissolved and the members become
International Persons of their own, a succession like-
wise takes place. All treaties concluded by the Union
devolve upon the former members, except those which
were concluded by the Union for one member only —
e.g. by Sweden-Norway for Norway — and which, there-
fore, devolve upon such former member only, and,
further, except those which concerned the very Union
and lose all meaning by its dissolution.
§ 84. When in consequence of war or otherwise one Succes-
State cedes a part of its territory to another, or when case S
a part of the territory of a State breaks off and be-
comes a State and an International Person of its own, Cession.
succession takes place with regard to such international
rights and duties of the predecessor as are locally con-
nected with the part of the territory ceded or broken
off, and with regard to the fiscal property found on
that part of the territory. It would only be just, if
the successor had to take over a corresponding part of
the debt of its predecessor, but no rule of International
Law concerning this point can be said to exist, although
many treaties have stipulated a devolution of a part
of the debt of the predecessor upon the successor.2
Thus, for instance, arts. 9. 33, 42 of the Treaty of Berlin 3
of 1878 stipulate that Bulgaria, Montenegro, and Servia
should take over a part of the Turkish debt. On the
1 See below, § 87. Nos. 125-135 and 205, where the
2 Many writers, however, maintain respective treaties are enumerated.
that there is such a rule of Inter- 3 See Martens, N.R.G. 2nd Ser.
national Law. See Huber, op. cit. III. p. 449.
other hand, the United States refused, after the cession

of Cuba in 1898, to take over from Spain the so-called
Cuban debt — that is, the debt which was settled by
Spain on Cuba before the war.1 Spain argued that it
was not intended to transfer to the United States a
proportional part of the debt of Spain, but only such
debt as attached individually to the island of Cuba.
The United States, however, met this argument by the
correct assertion that the debt concerned was not one
incurred by Cuba, but by Spain, and settled by her on
Cuba.
COMPOSITE INTERNATIONAL PERSONS
Pufendorf, VII. c. 5— Hall, § 4— Westlake, I. pp. 31-37— Phillimore, I. §§ 71-

74, 102-105— Twiss, I. §§ 37-60— Hal leek, I. pp. 70-74— Taylor, §§ 120-
130— Wheaton, §§ 39-51— Moore, I. §§ 6-11— Hartmann, § 70— Heffter,
§§ 20 -21— Holtzendorff in Holtzendorff, II. pp. 118-141— Liszt, § 6—
Ullmann, §§ 20-24— Bonfils, Nos. 165-174— Despagnet, Nos. 109-126—
Pradier-Fodere', I. Nos. 117-123— Mdrignhac, II. pp. 6-42— Nys, I. pp.
367-378— Rivier, I. §§ 5-6— Calvo, I. §§ 44-61— Fiore, I. Nos. 335-339,
and Code, Nos. 96-104— Martens, I. §§ 56-59 — Pufendorf, " De
systematibus civitatum" (1675) — Jellinek, "Die Lehre von den
Staatenverbindungen " (1882) — Borel, "Etude sur la souverainete de
1'Etat fede"ratif" (1886)— Brie, " Theorie der Staatenverbindungen"
(1886) — Hart, "Introduction to the Study of Federal Government" in
" Harvard Historical Monographs," 1891 (includes an excellent biblio-
graphy)—Le Fur, " Etat federal et confederation d'Etats" (1896)— Moll,
" Der Bundestaatsbegriff in den Vereinigten Staaten von America "
(1905)— Ebers, " Die Lehre von Staatenbunde " (1910).
Real and § 85. International Persons are as a rule single

composite Sovereign States. In such single States there is one
inter- central political authority as Government which repre-
sents the State, within its borders as well as without
in the international intercourse with other International
Persons. Such single States may be called simple
International Persons. And a State remains a simple
1 See Moore, III. § 97, pp. 351-385.
COMPOSITE INTERNATIONAL PERSONS 133
International Person, although it may grant so much

internal independence to outlying parts of its territory
that these parts become in a sense States themselves.
Great Britain is a simple International Person, although
the Dominion of Canada, Newfoundland, the Common-
wealth of Australia, New Zealand, and the Union of
South Africa, are now States of their own, because
Great Britain is alone Sovereign and represents ex-
clusively the British Empire within the Family of
Nations.
Historical events, however, have created, in addition
to the simple International Persons, composite Inter-
national Persons. A composite International Person is
in existence when two or more Sovereign States are
linked together in such a way that they take up their
position within the Family of Nations either exclusively
or at least to a great extent as one single International
Person. History has produced two different kinds of
such composite International Persons — namely, Real
Unions and Federal States. In contradistinction to
Real Unions and Federal States, a so-called Personal
Union and the union of so-called Confederated States
are not International Persons.1
§ 86. A Personal Union is in existence when two states in
Sovereign States and separate International Persons are union!al
linked together through the accidental fact that they
have the same individual as monarch. Thus a Personal
Union existed from 1714 to 1837 between Great Britain
and Hanover, from 1815 to 1890 between the Nether-
lands and Luxemburg, and from 1885 to 1908 between
1 I cannot agree with Westlake question, for instance, whether a

(I. p. 37) that " the space which diplomatic envoy sent by Bavaria
some writers devote to the dis- to this country must be granted
tinctions between the different the privileges due to a foreign
kinds of union between States " is diplomatic envoy depends upon the
" disproportioned ... to their question whether Bavaria is an
international importance." Very International Person in spite of her
important questions are connected being a member-State of the German
with these distinctions. The Empire.
Belgium and the former Congo Free State v At present

there is no Personal Union in existence. ( A Personal
Union is not, and is in no point treated as though it
were, an International Person, and its two Sovereign
member-States remain separate International Persons.
Theoretically it is even possible that they make war
against each other, although practically this will never
occur. If, as sometimes happens, they are represented
by one and the same individual as diplomatic envoy,
such individual is the envoy of both States at the same
time, but not the envoy of the Personal Union.
states in § 87. A Real Union 1 is in existence when two
Union. Sovereign States are by an international treaty, recog-
nised by other Powers, linked together for ever under
the same monarch, so that they make one and the
same International Person. A Real Union is not
itself a State, but merely a union of two full Sove-
reign States which together make one single but com-
posite International Person. They form a compound
Power, and are by the treaty of union prevented from
making war against each other. On the other hand,
they cannot make war separately against a foreign
Power, nor can war be made against one of them separ-
ately. They can enter into separate treaties of com-
merce, extradition, and the like, but it is always the
Union which concludes such treaties for the separate
States, as they separately are not International Persons.
It is, for instance, Austria-Hungary which concludes an
international treaty of extradition between Hungary
. and a foreign Power. The only Real Union at present
. in existence outside the German Empire 2 is that of
Austria-Hungary, that of Sweden-Norway having been
dissolved in 1905.
Austria-Hungary became a Real Union in 1723. In
1 See Bliithgen in Z.V., I. (1906), Saxe-Coburg and Saxe-Gotha within
pp. 237-263. the German Empire.
a There is a Real Union between
1849, Hungary was united with Austria, but in 1867

Hungary became again a separate Sovereign State and
the Real Union was re-established. Their army, navy,
and foreign ministry are united. The Emperor-King
declares war, makes peace, concludes alliances and
other treaties, and sends and receives the same diplo-
matic envoys for both States.
Sweden-Norway became a Eeal Union1 in 1814.
The King could declare war, make peace, conclude
alliances and other treaties, and send and receive the
same diplomatic envoys for both States. The Foreign
Secretary of Sweden managed at the same time the
foreign affairs of Norway. Both States had, however,
in spite of the fact that they made one and the same
International Person, different commercial and naval
flags. The Union was peacefully dissolved by the
Treaty of Karlstad of October 26, 1905. Norway
became a separate kingdom, the independence and
integrity of which is guaranteed by Great Britain,
France, Germany, and Russia by the Treaty of Chris-
tiania of November 2, 1907.2
§ 88. Confederated States (Staatenbund) are a num- confeder-
ber of full Sovereign States linked together for the g^s
maintenance of their external and internal independence (Staaten-
by a recognised international treaty into a union with
organs of its own, which are vested with a certain power
over the member-States, but not over the citizens of .
these States. Such a union of Confederated States is
not any more itself a State than a Real Union is ; it
is merely an International Confederation of States, a
society of international character, since the member-
States remain full Sovereign States and separate Inter-
national Persons. Consequently, the union of Con-
1 This is not universally recog- Twiss, I. § 40, calls it a Federal
nised. Phillimore, I. § 74, maintains Union,
that there was a Personal Union 2 See above, § 50, p. 75.
between Sweden and Norway, and
federated States is not an International Person, although

it is for some parts so treated on account of its re-
presenting the compound power of the full Sovereign
member-States. The chief and sometimes the only
organ of the union is a Diet, where the member-States
are represented by diplomatic envoys. The power
vested in the Diet is an International Power which does
not in the least affect the full sovereignty of the member-
States. That power is essentially nothing else than the
right of the body of the members to make war against
such a member as will not submit to those command-
ments of the Diet which are in accordance with the
Treaty of Confederation, war between the member-
States being prohibited in all other cases.
History has shown that Confederated States repre-
sent an organisation which in the long run gives very
little satisfaction. It is for that reason that the three
important unions of Confederated States of modern
times— namely, the United States of America, the
German, and the Swiss Confederation — have turned
into unions of Federal States. Notable historic^Qon-
federations are those of the Netherlands from 1580 to
1795, the United States of America from 1778 to 1787,
Germany from 1815 to 1866, Switzerland from 1291 to
1798 and from 1815 to 1848, and the Confederation of
the Ehine (Rheinbund) from 1806 to 1813. At present
there is no union of Confederated States. The last in
existence, the major Republic of Central America,1
which comprised the three full Sovereign States of
Honduras, Nicaragua, and San Salvador, and was
established in 1895, came to an end in 1898.
Federal § 89. A Federal State 2 is a perpetual union of several
(Bundes- Sovereign States which has organs of its own and is
staaten).
* See N.R.G. 2nd Ser. XXXII. pp. is not at all universally recognised,
27G-292. and the terminology is consequently
a The distinction between Con- not at all the same with all writers
federated States aud a Federal State on International Law.
invested with power, not only over the member-

States, but also over their citizens. The union is based,
first, on an international treaty of the member-States,
and, secondly, on a subsequently accepted constitution
of the Federal State. A Federal State is said to be a
real State side by side with its member-States because
its organs have a direct power over the citizens of those
member-States. This power was established by Ameri-
can *jurists of the eighteenth century as a character-
istic distinction of a Federal State from Confederated
States, and Kent as well as Story, the two later
authorities on the Constitutional Law of the United
States, adopted this distinction, which is indeed kept
up until to-day by the majority of writers on politics.
Now if a Federal State is recognised as a State of its
own, side by side with its member-States, it is evident
that sovereignty must be divided between the Federal
State on the one hand, and, on the other, the member-
States. This division is made in this way, that the com-
petence over one part of the objects for which a State is
in existence is handed over to the Federal State, whereas
the competence over the other part remains with the
member-States. Within its competence the Federal State
can make laws which bind the citizens of the member-
States directly without any interference of these member-
States. On the other hand, the member-States are
totally independent as far as their competence reaches.
1 When in 1787 the draft of the points among themselves and treated
new Constitution of the United them separately. All these articles,
States, which had hitherto been which were not signed with the
Confederated States only, was under names of their authors, appeared
consideration by the Congress at under the common title "The
Philadelphia, three members of the Federalist." They were later on
Congress — namely, Alexander Hamil- collected into book-form and have
ton, James Madison, and John Jay been edited several times. It is
— made up their minds to write especially Nos. 15 and 16 of " The
newspaper
Constitution articles
with theon intention
the draft
of Federalist
difference " between
which establish the
Confederated
enlightening the nation which had States and a Federal State in the
to vote for the draft. For this way mentioned in the text above,
purpose they divided the different
For International Law this division of competence

is only of interest in so far as it concerns competence
in international matters. Since it is always the Federal
State which is competent to declare war, make peace,
conclude treaties of alliance and other political treaties,
and send and receive diplomatic envoys, whereas no
member-State can of itself declare war against a foreign
State, make peace, conclude alliances and other political
treaties, the Federal State, if recognised, is certainly an
International Person of its own, with all the rights and
duties of a sovereign member of the Family of Nations.
On the other hand, the international position of the
member-States is not so clear. It is frequently main-
tained that they have totally lost their position within
the Family of Nations. But this opinion cannot stand
if compared with the actual facts. Thus, the member-
States of the Federal State of Germany have retained
their competence to send and receive diplomatic envoys,
not only in intercourse with one another, but also with
foreign States. Further, the reigning monarchs of these
member-States are still treated by the practice of the
States as heads of Sovereign States, a fact without legal
basis if these States were no longer International Persons.
Thirdly, the member-States of Germany as well as of
Switzerland have retained their competence to conclude
international treaties between themselves without the
consent of the Federal State, and they have also re-
tained the competence to conclude international treaties
with foreign States as regards matters of minor interest.
If these facts1 are taken into consideration, one is
obliged to acknowledge that the member-States of a
Federal State can be International Persons in a degree.
Full subjects of International Law, International Per-
sons with all the rights and duties regularly connected
with the membership of the Family of Nations, they
1 See Riess," AuswartigeHoheitsrechte der deutschen Einzelstaaten "(1905).
certainly cannot be. Their position, if any, within this

circle is overshadowed by their Federal State, they are
part-Sovereign States, and they are, consequently,
International Persons for some parts only.
But it happens frequently that a Federal State
assumes in every way the external representation of
its member-States, so that, so far as international re-
lations are concerned, the member-States do not make
an appearance at all. This is the case with the United
States of America and all those other American Federal
States whose Constitution is formed according to the
model of that of the United States. Here the member-
States are sovereign too, but only with regard to internal x
affairs. All their external sovereignty being absorbed
by the Federal State, it is certainly a fact that they
are not International Persons at all so long as this
condition of things lasts.
This being so, two classes of Federal States must be
distinguished 2 according to whether their member-
States are or are not International Persons, although
Federal States are in any case composite International
Persons. And whenever a Federal State comes into
existence which leaves the member-States for some parts
International Persons, the recognition granted to it by
foreign States must include their readiness to recognise
for the future, on the one hand, the body of the member-
States, the Federal State, as one composite International
Person regarding all important matters, and, on the
other hand, the single member-States as International
Persons with regard to less important matters and side
by side with the Federal State. That such a condition
1 The Courts of the United States "History of the Theory of Sovereignty
of America have always upheld the since Rousseau" (1900), p. 163.
theory that the United States are 2 This distinction is of the greatest
sovereign as to all powers of govern- importance and ought to be accepted
ment actually surrendered, whereas by the writers on the science of
each member-State is sovereign as to politics,
all powers reserved. See Merriam,
of things is abnormal and illogical cannot be denied, but

the very existence of a Federal State side by side the
member-States is quite as abnormal and illogical.
The Federal States in existence are the following :—
The United States of America since 1787, Switzerland
since 1848, Germany since 1871, Mexico since 1857,
Argentina since 1860, Brazil since 1891, Venezuela since
1893.
VI
VASSAL STATES
Hall, § 4— Westlake, L pp. 25-27— Lawrence, § 39— Phillimore, I. §§ 85-99—

Twiss, I. §§ 22-36, 61-73— Taylor, §§ 140-144— Wheaton, § 37— Moore, I.
§ 13— Bluntschli, §§ 76-77— Hartmann, § 16— Heffter, §§ 19 and 22—
Holtzendorff in Holtzendorff, II. pp. 98-117— Liszt, § 6— Ullmann, § 25
— Gareis, § 15— Bonfils, Nos. 188-190— Despagnet, Nos. 127-129—
Me"rignhac, I. pp. 201-218— Pradier-Fode're, I. Nos. 109-112— Nys, I.
pp. 357-364— Rivier, I. § 4— Calvo, I. §§ 66-72— Fiore, I. No. 341, and
Code, Nos. 105-110— Martens, I. §§ 60-61— Stubbs, " Suzerainty" (1884)
— Baty, "International Law in South Africa" (1900), pp. 48-68—
BoghitcheVitch, " Halbsouveranitat " (1903).
The Union § 90. The union and the relations between a Suzerain
strata anc* its Vassal State create much difficulty in the science
statlassal °^ *ê âw °^ Nations. As both are separate States, a
union of States they certainly make, but it would be
wrong to say that the Suzerain State is, like the Real
Union of States or the Federal State, a composite
International Person. And it would be equally wrong to
maintain either that a Vassal State cannot be in any way
a separate International Person of its own, or that it is
an International Person of the same kind as any other
State. What makes the matter so complicated, is the
fact that a general rule regarding the relation between
the suzerain and vassal, and, further, regarding the
position, if any, of the vassal within the Family of
Nations, cannot be laid down, as everything depends
upon the special case. What can and must be said is
VASSAL STATES 141
that there are some States in existence which, although

they are independent of another State as regards their
internal affairs, are as regards their international affairs
either absolutely or for the most part dependent upon
another State. They are called half -Sovereign l States
because they are sovereign within their borders but not
without. The full Sovereign State upon which such
half-Sovereign States are either absolutely or for the
most part internationally dependent, is called the
Suzerain State.
Suzerainty is a term which originally was used for
the relation between the feudal lord and his vassal ;
the lord was said to be the suzerain of the vassal, and
at that time suzerainty was a term of Constitutional
Law only. With the disappearance of the feudal
system, suzerainty of this kind likewise disappeared.
Modern suzerainty contains only a few rights of the
Suzerain State over the Vassal State which can be
called constitutional rights. The rights of the Suzerain
State over the Vassal are principally international
rights, of whatever they may consist. Suzerainty is by
no means sovereignty. If it were, the Vassal State
could not be Sovereign in its domestic affairs and could
never have any international relations whatever of its
own. And why should suzerainty be distinguished
from sovereignty if it be a term synonymous with
sovereignty? One may correctly maintain that suzer-
ainty is a kind of international guardianship, since the
Vassal State is either absolutely or mainly represented
internationally by the Suzerain State.
§ 91. The fact that the relation between the suzerain inter
and the vassal always depends upon the special case,
excludes the possibility of laying down a general rule gft
as regards the position of Vassal States within the Family
1 In contradistinction to the States called 7ta//"-Sovereign States, I call
which are under suzerainty or pro- member-States of a Federal State
tectorate, and which are commonly parZ-Sovereign States.
of Nations. It is certain that a Vassal State as such

need not have any position whatever within the Family
of Nations. In every case in which a Vassal State has
absolutely no relations whatever with other States,
since the suzerain absorbs these relations entirely, such
vassal remains nevertheless a half-Sovereign State on
account of its internal independence, but it has no posi-
tion whatever within the Family of Nations, and conse-
quently isfor no part whatever an International Person
and a subject of International Law. This is the position
of the Indian Vassal States of Great Britain, which have
no international relations whatever either between them-
selves or with foreign States.1 Yet instances can be
given which demonstrate that Vassal States can have
some small and subordinate position within that family,
and that they must in consequence thereof in some few
points be considered as International Persons. Thus
Egypt can conclude commercial and postal treaties with
foreign States without the consent of suzerain Turkey,
and Bulgaria could, while she was under Turkish Suze-
rainty, conclude treaties regarding railways, post, and
the like. Thus, further, Egypt can send and receive
consuls as diplomatic agents, and so could Bulgaria
while she was a Turkish Vassal State. Thus, thirdly,
the former South African Kepublic, although in the
opinion of Great Britain under her suzerainty, could
conclude all kinds of treaties with other States, pro-
vided Great Britain did not interpose a veto within six
months after receiving a copy of the draft treaty, and
was absolutely independent in concluding treaties with
the neighbouring Orange Free State. Again, Egypt
possesses, since 1898, together with Great Britain con-
dominium2 over the Soudan, which means that they
1 See Westlake, Chapters, pp. See also Lee- Warner, "The Native
211-219 ; Westlake, I. pp. 41-43, and States of India " (1910), pp. 254-279.
again Westlake in The Law Quarterly 2 See below, § 171.
Review, XXVI. (1910), pp. 312-319—
VASSAL STATES 143
exercise conjointly sovereignty over this territory.

Although Vassal States have not the right to make war
independently of their suzerain, Bulgaria, at the time a
Vassal State, nevertheless fought a war against the full-
Sovereign Servia in 1885, and Egypt conquered the
Soudan conjointly with Great Britain in 1898.
How could all these and other facts be explained, if
Vassal States could never for some small part be Inter-
national Persons ?
Side by side with these facts stand, of course, other
facts which show that for the most part the Vassal
State, even if it has some small position of its own
within the Family of Nations, is considered a mere
portion of the Suzerain State. Thus all international
treaties concluded by the Suzerain State are ipso facto
concluded for the vassal, if an exception is not expressly
mentioned or self-evident. Thus, again, war of the
suzerain is ipso facto war of the vassal. Thus, thirdly,
the suzerain bears within certain limits a responsibility
for actions of the Vassal State.
Under these circumstances it is generally admitted
that the conception of suzerainty lacks juridical pre-
cision, and experience teaches that Vassal States do
not remain half-Sovereign for long. They either shake
of? suzerainty, as Roumania, Servia, and Montenegro did
in 1878, and Bulgaria l did in 1908, or they lose their
half -Sovereignty through annexation, as in the case of
the South African Republic in 1901, or through merger,
as when the half-Sovereign Seignory of Kniephausen
in Germany merged in 1854 into its suzerain Oldenburg.
Vassal States of importance which are for some
parts International Persons are, at present, Egypt,2 and
1 As regards the position of Bui- liche Entwickelung Bulgarians "
garia while she was a Vassal State (1908).
under Turkish suzerainty, see Hoi- a See Holland, "The European
land, " The European Concert in the Concert in the Eastern Question "
Eastern Question " (1885), pp. 277- (1885), pp. 89-205 ; Griinau, " Die
307, and Nedjmidin, " Volkerrecht- staats- und volkerrechtliche Stellung
Crete.1 They are both under Turkish suzerainty,

although Egypt is actually under the administration
of Great Britain. Samos,2 which some writers consider
a Vassal State under Turkish suzerainty, is not half-
Sovereign, but enjoys autonomy to a vast degree.
VII
STATES UNDER PROTECTORATE
Hall, §§ 4 and 38*— Westlake, I. pp. 22-24— Lawrence, § 39— Phillimore, I.

75-82— Twiss, I. §§ 22-36— Taylor, §§ 134-139— Wheaton, §§ 34-36—
Moore, I. § 14— Bluntschli, § 78— Hartmann, § 9— Heffter, §§ 19 and 22—
Holtzendorff in Holtzendorff, II. pp. 98-117— Gareis, § 15— Liszt, § 6—
Ullmann, § 26— Bonfils, Nos. 176-187— Despagnet, Nos. 130-136—
Me"rignhac, II. pp. 180-220— Pradier-Fode"rd, I. Nos. 94-108— Nys, I. pp.
364-366— Rivier, I. § 4— Calvo, I. §§ 62-65— Fiore, I. § 341, and Code,
Nos. 111-118— Martens, I. §§ 60-61— Fillet in R.G. II. (1895), pp. 583-
608— Heilborn, " Das volkerrechtliche Protectorat " (1891)— Engelhardt,
" Les Protectorats, &c." (1896) — Gairal, "Le protectorat international"
(1896)— Despagnet, " Essai sur les protectorats " (1896)— BoghitcheVitch,
" Halbsouveranitat " (1903).
Concep- § 92. Legally and materially different from suzerainty

Protec- is the relation of protectorate between two States. It
torate. happens that a weak State surrenders itself by treaty
into the protection of a strong and mighty State in
such a way that it transfers the management3 of all
its more important 4 international affairs to the pro-
tecting State. Through such treaty an international
Aegyptens " (1903) ;Cocheris,"Situa- 3 A treaty of protectorate must
tion internationale de 1'Egypte et du not be confounded with a treaty of
Soudan" (1903); Freycinet, "La protection in which one or more
question d'Egypte " (1905) ; Moret in strong States promise to protect a
R.J. XIV. (1907), pp. 405-416 ; weak State without absorbing the
Lamba in R.G. XVII. (1910), pp. 36- international relations of the latter.
55. In the case of the " Charkieh," 4 That the admittance of Consuls
1873, L.R. 4 Adm. and Eccl. 59, the belongs to these affairs became
Court refused to acknowledge the apparent in 1906, when Russia, after
half -sovereignty of Egypt ; see some hesitation, finally agreed upon
Phillimore, I. § 99. Japan, and not Korea, granting the
1 See Streit in R.G. X. (1903), pp. exequatur to the Consul-general
399-417. appointed by Russia for Korea, which
8 See Albrecht in Z.V. I. (1907), was then a State under Japanese
pp. 56-112. protectorate. See below, § 42?.
STATES UNDEE PROTECTORATE 145
union is called into existence between the two States,

and the relation between them is called protectorate.
The protecting State is internationally the superior of
the protected State, the latter has with the loss of the
management of its more important international affairs
lost its full sovereignty and is henceforth only a half-
Sovereign State. Protectorate is, however, a concep-
tion which, just like suzerainty, lacks exact juristic
precision,1 as its real meaning depends very much upon
the special case. Generally speaking, protectorate may,
again like suzerainty, be called a kind of international
guardianship.
§ 93. The position of a State under protectorate inter-
within the Family of Nations cannot be defined by a position of
general rule, since it is the treaty of protectorate which
indirectly specialises it by enumerating the reciprocal tectorate.
rights and duties of the protecting and the protected
State. Each case must therefore be treated according
to its own merits. Thus the question whether the
protected State can conclude certain international
treaties and can send and receive diplomatic envoys,
as well as other questions, must be decided according to
the terms of the individual treaty of protectorate. In
any case, recognition of the protectorate on the part of
third States is necessary to enable the superior State
to represent the protected State internationally. But
it is characteristic of the protectorate, in contradis-
tinction to suzerainty, that the protected State always
has and retains for some parts a position of its own
within the Family of Nations, and that it is always for
some parts an International Person and a subject of
1 It is therefore of great import- at Uccialli on May 2, 1889 — see

ance that the parties should make Martens, N.R.G-. 2nd Ser. XVIII.
quite clear the meaning of a clause p. 697 — was interpreted by Italy as
which is supposed to stipulate a establishing a protectorate over
protectorate. Thus art. 17 of the Abyssinia, but the latter refused to
Treaty of Friendship and Commerce recognise it.
between Italy and Abyssinia, signed
VOL. I. K
International Law. It is never in any respect con-

sidered a mere portion of the superior State. It is,
therefore, not necessarily a party in a war l of the
superior State against a third, and treaties concluded
by the superior State are not ipso facto concluded for
the protected State. And, lastly, it can at the same
time be under the protectorate of two different States,
which, of course, must exercise the protectorate con-
jointly.
In Europe there are at present only two very small
States under protectorate — namely, the republic of
Andorra, under the joint protectorate of France and
Spain,2 and the republic of San Marino, an enclosure of
Italy, which was formerly under the protectorate of the
Papal States and is now under that of Italy. The
Principality of Monaco, which was under the protec-
torate, first of Spain until 1693, afterwards of France
until 1815, and then of Sardinia, has now, through
custom, become a full-Sovereign State, since Italy has
never 3 exercised the protectorate. The Ionian Islands,
which were under British protectorate from 1815,
merged into the Kingdom of Greece in 1863.
Protec- § 94. Outside Europe there are numerous States
outside under the protectorate of European States, but all of
Family of them are non- Christian States of such a civilisation as
Nations, would not admit them to full membership of the Family
of Nations, apart from the protectorate under which they
are now. And it may therefore be questioned whether
they have any real position within the Family of Nations
at all. As the protectorate over them is recognised by
third States, the latter are legally prevented from exer-
1 This was recognised by the 2 This protectorate is exercised
English Prize Courts during the for Spain by the Bishop of Urgel.
Crimean War with regard to the As regards the international position
Ionian Islands, which were then of Andorra, see Vilar, " L'Andorre "
still under British protectorate ; see (1905).
the case of the Ionian Ships, 2 Spinks 3 This is a clear case of desuetudo.
212, and Phillimore, I. § 77.
NEUTRALISED STATES 147
cising any political influence in these protected States,

and, failing special treaty rights, they have no right to
interfere if the protecting State annexes the protected
State and makes it a mere colony of its own, as, for
instance, France did with Madagascar in 1896. Pro-
tectorates ofthis kind are actually nothing else than
the first step to annexation.1 Since they are based on
treaties with real States, they cannot in every way be
compared with the so-called protectorates over African
tribes which European States acquire through a treaty
with the chiefs of these tribes, and by which the respec-
tive territory is preserved for future occupation on the
part of the so-called protector.2 But actually they
always lead to annexation, if the protected State does
not succeed in shaking off by force the protectorate, as
Abyssinia did in 1896 when she shook off the pretended
Italian protectorate.
VIII
NEUTRALISED STATES
Westlake, I. pp. 27-30— Lawrence, §§ 43 and 225— Taylor, § 133— Moore, I.

§ 12— Bluntschli, § 745— Heffter, § 145— Holtzendorff in Holtzendorff, II.
pp. 643-646— Gareis, § 15— Liszt, § 6— Ullmann, § 27— Bonfils, Nos. 348-
369— Despagnet, Nos. 137-146— M6rignhac, II. pp. 56-65— Pradier-
Fodere, II. Nos. 1001-1015— Nys, I. pp. 379-398— Rivier, I. § 7— Calvo,
IV. §§ 2596-2610— Piccioni's "Essai sur la neutralite perpetuelle" (2nd
ed. 1902)— Regnault, " Des effets de la neutralite perpetuelle " (1898)—
Tswettcoff, " De la situation juridique des etats neutralises " (1895)—
Morand in R.G. I. (1894), pp. 522-537— Hagerup in R.G. XII. (1909),
pp. 577-602— Nys in R.I. 2nd Ser. II. (1900), pp. 468-583, III. (1901),
p. 15— Westlake in R.I. 2nd Ser. III. (1901), pp. 389-397— Winslow in A.J.
II. (1908), pp. 366-386— Wicker in A.J. v. (1911), pp. 639-654.
§ 95. A neutralised State is a State whose indepen- concep-

dence and integrity are for all the future guaranteed
by an international convention of the Powers, under States.
1 Examples of such non-Chris- 2 See below, § 226, and Perrin-
tian States under protectorate are jaquet in R.G. XVI. (1909), pp. 316-
Zanzibar under Great Britain and 367.
Tunis under France.
the condition that such State binds itself never to take

up arms against any other State except for defence
against attack, and never to enter into such international
obligations as could indirectly drag it into war. The
reason why a State asks or consents to become neutral-
ised is that it is a weak State and does not want an
active part in international politics, being exclusively
devoted to peaceable developments of welfare. The
reason why the Powers neutralise a weak State may be
a different one in different cases. The chief reasons
have been hitherto the balance of power in Europe and
the interest in keeping up a weak State as a so-called
Buffer-State between the territories of Great Powers.
Not to be confounded with neutralisation of States
is neutralisation of parts of States,1 of rivers, canals,
and the like, which has the effect that war cannot there
be made and prepared.
Act and § 96. Without thereby becoming a neutralised State,
of°Neutra- every State can conclude a treaty with another State
an^ undertake the obligation to remain neutral if such
other State enters upon war. The act through which
a State becomes a neutralised State for all the future
is always an international treaty of the Powers between
themselves and between the State concerned, by which
treaty the Powers guarantee collectively the indepen-
dence and integrity of the latter State. If all the Great
Powers do not take part in the treaty, those which do
not take part in it must at least give their tacit consent
by taking up an attitude which shows that they agree
to the neutralisation, although they do not guarantee
it. In guaranteeing the permanent neutrality of a
State the contracting Powers enter into the obligation
not to violate on their part the independence of the
neutral State and to prevent other States from such
violation. But the neutral State becomes, apart from
1 See below, Vol. II. § 72.
the guaranty, in no way dependent upon the guarantors,

and the latter gain no influence whatever over the
neutral State in matters which have nothing to do with
the guaranty.
The condition of the neutralisation is that the
neutralised State abstains from any hostile action, and
further from any international engagement which could
indirectly1 drag it into hostilities against any other
State. And it follows from the neutralisation that the
neutralised State can, apart from frontier regulations,
neither cede a part of its territory nor acquire new parts
of territory without the consent of the Powers.2
§ 97. Since a neutralised State is under the obliga- inter-
tion not to make war against any other State, except position1 of
when attacked, and not to conclude treaties of alliance, Neutral-
1^G(1
guaranty, and the like, it is frequently maintained that states.

neutralised States are part-Sovereign only and not
International Persons of the same position within the
Family of Nations as other States. This opinion has,
however, no basis if the real facts and conditions of the
neutralisation are taken into consideration. If sove-
reignty isnothing else than supreme authority, a neutral-
ised State is as fully Sovereign as any not neutralised
State. It is entirely independent outside as well as
inside its borders, since independence does not at all
mean boundless liberty of action.3 Nobody maintains
that the guaranteed protection of the independence and
integrity of the neutralised State places this State under
the protectorate or any other kind of authority of the
1 It was, therefore, impossible for 2 This is a much discussed and very
Belgium, which was a party to the controverted point. See Descamps,
treaty that neutralised Luxemburg " La Neutrality de la Belgique "
in 1867, to take part in the guarantee (1902), pp. 508-527 ; Fauchille in B.G.
of this neutralisation. See article 2 II. (1895), pp. 400-439 ; Westlake in
of the Treaty of London of May 11, B.I. 2nd Ser. III. (1901), p. 396; Graux
1867 : " sous la sanction de la in R.I. 2nd Ser. VII. (1905), pp. 33-
garantie collective des puissances 52 ; Rivier, I. p. 172. See also below,
signataires, a 1'exception de la § 215.
Belgique, qui est elle-meme un etat 3 See below, § 126.
neutre."
guarantors. And the condition of the neutralisation

to abstain from war, treaties of alliance, and the like,
contains restrictions which do in no way destroy the
full sovereignty of the neutralised State. Such condi-
tion has the consequence only that the neutralised
State exposes itself to an intervention by right, and
loses the guaranteed protection in case it commits hos-
tilities against another State, enters into a treaty of
alliance, and the like. Just as a not-neutralised State
which has concluded treaties of arbitration with other
States to settle all conflicts between one another by
arbitration has not lost part of its sovereignty because
it has thereby to abstain from arms, so a neutralised
State has not lost part of its sovereignty through enter-
ing into the obligation to abstain from hostilities and
treaties of alliance. This becomes quite apparent when
it is taken into consideration that a neutralised State
not only can conclude treaties of all kinds, except
treaties of alliance, guarantee, and the like, but can
also have an army and navy * and can build fortresses,
as long as this is done with the purpose of preparing
defence only. Neutralisation does not even exercise an
influence upon the rank of a State. Belgium, Switzer-
land, and Luxemburg are States with royal honours and
do not rank behind Great Britain or any other of the
guarantors of their neutralisation. Nor is it denied
that neutralised States, in spite of their weakness and
comparative unimportance, can nevertheless play an
important part within the Family of Nations. Al-
though she has no voice where history is made by the
sword, Switzerland has exercised great influence with
regard to several points of progress in International
Law. Thus the Geneva Convention owes its existence
to the initiative of Switzerland. The fact that a per-
1 The case of Luxemburg, which with the exception of a police, is an
became neutralised under the con- anomaly,
dition not to keep an armed force
NEUTEALISED STATES 151
manently neutralised State is in many questions a

disinterested party makes such State fit to take the
initiative where action by a Great Power would create
suspicion and reservedness on the part of other Powers.
But neutralised States are and must always be an
exception. The Family and the Law of Nations could
not be what they are if ever the number of neutralised
States should be much increased. It is neither in the
interest of the Law of Nations, nor in that of humanity,
that all the small States should become neutralised, as
thereby the political influence of the few Great Powers
would become still greater than it already is. The
neutralised States still in existence — namely, Switzer-
land, Belgium, and Luxemburg — are a product of the
nineteenth century only, and it remains to be seen
whether neutralisation can stand the test of history.1
§ 98. The Swiss Confederation,2 which was recog-
nised by the Westphalian Peace of 1648, has pursued a land
traditional policy of neutrality since that time. During
the French Revolution and the Napoleonic Wars, how-
ever, she did not succeed in keeping up her neutrality.
French intervention brought about in 1803 a new Con-
stitution, according to which the single cantons ceased
to be independent States and Switzerland turned from
a Confederation of States into the simple State of the
Helvetic Republic, which was, moreover, through a
treaty of alliance linked to France. It was not till 1813
that Switzerland became again a Confederation of
States, and not till 1815 that she succeeded in becoming
permanently neutralised. On March 20, 1815, at the
1 The fate of the Republic of neutralised States have no durability.
Cracow, which was created an This annexation was only the last
independent State under the joint act in the drama of the absorption
protection of Austria, Prussia, and of Poland by her neighbours. As re-
Russia by the Vienna Congress in gards the former Congo Free State,
1815, and permanently neutralised, t;ee below, § 101.
but which was annexed by Austria 2 See Schweizer, " Geschichte der
in 1846 (see Nys, I. pp. 383-385), schweizerischen Neutralitat," 2 vols.
cannot be quoted as an example tbat (1895).
Congress at Vienna, Great Britain, Austria, France,

Portugal, Prussia, Spain, and Eussia signed the declara-
tion in which the permanent neutrality of Switzerland
was recognised and collectively guaranteed, and on
May 27, 1815, Switzerland acceded to this declaration.
Article 84 of the Act of the Vienna Congress confirmed
this declaration, and an Act, dated November 20, 1815,
of the Powers assembled at Paris after the final defeat
of Napoleon recognised it again.1 Since that time
Switzerland has always succeeded in keeping up her
neutrality. She has built fortresses and organised a
strong army for that purpose, and in January 1871,
during the Franco-German War, she disarmed a French
army of more than 80,000 men who had taken refuge
on her territory, and guarded them till after the war.
Belgium. § 99. Belgium2 became neutralised from the mo-
ment she was recognised as an independent State in
1831. The Treaty of London, signed on November 15,
1831, by Great Britain, Austria, Belgium, France,
Prussia, and Kussia, stipulates in its article 7 at the
same time the independence and the permanent neu-
trality ofBelgium, and in its article 25 the guaranty of
the signatory five Great Powers.3 And the guaranty
was renewed in article 1 of the Treaty of London of
April 19, 1839,4 to which the same Powers are parties,
and which is the final treaty concerning the separation
of Belgium from the Netherlands.
Belgium has, just like Switzerland, also succeeded
in keeping up her neutrality. She, too, has built for-
tresses and possesses a strong army.
Luxem- § 100. The Grand Duchy of Luxemburg 5 was since
1815 in personal union with the Netherlands, but at
1 See Martens, N.R. II. pp. 157, 3 See Martens, N.R. XI. pp. 394
173, 419, 740. and 404.
* See Descamps," La Neutralite de * See Martens, N.R. XVI. p. 790.
la Belgique " (1902). 8 See Wompach
neutre" (1900). " Le Luxembourg
the same time a member of the Germanic Confederation,

and Prussia had since 1856 the right to keep troops
in the fortress of Luxemburg. In 1866 the Germanic
Confederation came to an end, and Napoleon III. made
efforts to acquire Luxemburg by purchase from the
King of Holland, who was at the same time Grand Duke
of Luxemburg. As Prussia objected to this, it seemed
advisable to the Powers to neutralise Luxemburg. A
Conference met in London, at which Great Britain,
Austria, Belgium, France, Holland and Luxemburg,
Italy, Prussia, and Eussia were represented, and on
May 11, 1867, a treaty was signed for the purpose of the
neutralisation, which is stipulated and collectively guar-
anteed byall the signatory Powers, Belgium as a neu-
tralised State herself excepted, by article 2.1
The neutralisation took place, however, under the
abnormal condition that Luxemburg is not allowed to
keep any armed force, with the exception of a police
for the maintenance of safety and order, nor to possess
any fortresses. Under these circumstances Luxemburg
herself can do nothing for the defence of her neutrality,
as Belgium and Switzerland can.
§ 101. The former Congo Free State,2 which was re- The
cognised as an independent State by the Berlin Congo Congo
Conference 3 of 1884-1885, was a permanently neutral-
ised State from 1885-1908, but its neutralisation was
imperfect in so far as it was not guaranteed by the
Powers. This fact is explained by the circumstances
under which the Congo Free State attained its neutral-
isation. Article 10 of the General Act of the Congo
Conference of Berlin stipulates that the signatory Powers
shall respect the neutrality of any territory within the
1 See Martens, N.R.G. XVIII. p. dant du Congo," Vol. I. (1905) ;
448. f Reeves in A.J. III. (1909), pp. 99-
2 Moynier, " La fondation de 1'Etat 118.
independant du Congo " (1887) ; Hall, 3 See Protocol 9 of that Conference
§26; Westlake, I. p. , 30 ; Navez, in Martens, N.R.G. , 2nd Ser. X.
" Essai historique sur 1'Etat Indepen- p. 353.
Congo district, provided the Power then or hereafter in

possession of the territory proclaims its neutrality.
Accordingly, when the Congo Free State was recognised
by the Congress of Berlin, the King of the Belgians, as
the sovereign of the Congo State, declared l it per-
manently neutral, and this declaration was notified to
and recognised by the Powers. Since the Congo Con-
ference did not guarantee the neutrality of the terri-
tories within the Congo district, the neutralisation of
the Congo Free State was not guaranteed either. In
1908 2 the Congo Free State merged by cession into
Belgium.
IX
NON-CHRISTIAN STATES
Westlake, I. p. 40— Phillimore, I. §§ 27-33— Bluntschli, §§ 1-16— Heffter, § 7

— Gareis, § 10— Kivier, I. pp. 13-18— Bonfils, No. 40— Martens, § 41—
Nys, I. pp. 122-125— Westlake, Chapters, pp. 114-143.
NO essen- § 102. It will be remembered from the previous dis-

ference" cussion of the dominion 3 of the Law of Nations that
chiStan ^s dominion extends beyond the Christian and in-
and other eludes now the Mahometan State of Turkey and the
Buddhistic State of Japan. As all full-Sovereign Inter-
national Persons are equal to one another, no essential
difference exists within the Family of Nations between
Christian and non-Christian States. That foreigners
residing in Turkey are still under the exclusive juris-
diction of their consuls, is an anomaly based on a re-
striction on territorial supremacy arising partly from
custom and partly from treaties. If Turkey could ever
succeed, as Japan did, in introducing such reforms as
1 See Martens, N.R.G. 2nd Ser. ful, whether the guarantee of the
XVI. p. 585. neutrality of Belgium extends now
2 See Martens, N.R.G. 3rd Ser. to territory of the former Congo Free
II. pp. 101, 106, 109, and Delpech State ipso facto by its merger into
and Marcaggi in R.G. XVIII. (1911), Belgium.
pp. 105-163. The question is doubt- 3 See above, § 28.
NON-CHRISTIAN STATES 155
would create confidence in the impartiality of her Courts

of Justice, this restriction would certainly be abolished.
§ 103. Doubtful is the position of all non-Christian inter-
States except Turkey and Japan, such as China, Mor-
occo, Siam, Persia, and further Abyssinia, although the tian
latter is a Christian State, and although China, Persia, states
and Siam took part in the Hague Peace Conferences Turkey
of 1899 and 1907. Their civilisation is essentially so
different from that of the Christian States that inter-
national intercourse with them of the same kind as
between Christian States has been hitherto impossible.
And neither their governments nor their populations are
at present able to fully understand the Law of Nations
and to take up an attitude which is in conformity with
all the rules of this law. There should be no doubt that
these States are not International Persons of the same
kind and the same position within the Family of Nations
as Christian States. But it is equally wrong to main-
tain that they are absolutely outside the Family of
Nations, and are for no part International Persons.
Since they send and receive diplomatic envoys and con-
clude international treaties, the opinion is justified that
such States are International Persons only in some
respects — namely, those in which they have expressly
or tacitly been received into the Family of Nations.
When Christian States begin such intercourse with these
non-Christian States as to send diplomatic envoys to
them and receive their diplomatic envoys, and when
they enter into treaty obligations with them, they in-
directly declare that they are ready to recognise them
for these parts as International Persons and subjects of
the Law of Nations. But for other parts such non-
Christian States remain as yet outside the circle of the
Family of Nations, especially with regard to war, and
they are for those parts treated by the Christian Powers
according to discretion. This condition of things will,
however, not last very long. It may be expected that

with the progress of civilisation these States will become
sooner or later International Persons in the full sense
of the term. They are at present in a state of transi-
tion, and some of them are the subjects of international
arrangements of great political importance. Thus by
the Treaty of London of December 13, 1906, Great
Britain, France, and Italy agree to co-operate in main-
taining the independence and integrity of Abyssinia,1
and the General Act of the Conference of Algeciras of
April 7, 1906,2 signed by Great Britain, Germany,
Austria-Hungary, Belgium, Spain, the United States
of America, France, Italy, Holland, Portugal, Kussia,
Sweden, and Morocco herself, endeavours to suppress
anarchy in Morocco and to introduce reforms in its
internal administration. This Act,3 which recognises, on
the one hand, the independence and integrity of Morocco,
and, on the other, equal commercial facilities in that
country for all nations, contains :— (1) A Declaration
concerning the organisation of the Moroccan police;
(2) Regulations concerning the detection and suppression
of the illicit trade in arms ; (3) An Act of concession
for a Moorish State Bank ; (4) A Declaration concerning
an improved yield of the taxes and the creation of new
sources of revenue ; (5) Regulations respecting customs
and the suppression of fraud and smuggling ; (6) A
Declaration concerning the public services and public
works.
1 See Martens, N.RG. 2nd Ser. 76, that the Moroccan question has
XXXV. p. 556. been reopened, and that fre.sh nego-
a See Martens, N.R.G. 2nd Ser. tiations are taking place for its
XXXIV. p. 238. settlement.
3 It has been mentioned above, p.
THE HOLY SEE 157
X
THE HOLY SEE
Hall, § 98— Westlake, I. pp. 37-39— Phillimore, I. §§ 278-440— Twiss, I.

§§ 206-207— Taylor, §§ 277, 278, 282— Wharton, I. § 70, p. 546— Moore, I.
§ 18— Bluntschli, § 172— Heffter, §§ 40-41— Geffcken in Holtzendorff, II.
pp. 151-222— Gareis, § 13— Liszt, § 5— Ullmann, § 28— Bonfils, Nos. 370-
396— Despagnet, Nos. 147-164— Me'rignhac, II. pp. 119-153— Nys, II.
pp. 297-324— Rivier, I. § 8— Fiore, I. Nos. 520, 521— Martens, I. § 84—
Fiore, "Delia condizione giuridica internazionale della chiesa e del,
Papa " (1887)— Bombard, " Le Pape et le droit des gens " (1888)— Imbart-
Latour, " La papaute en droit international " (1893) — Olivart, " Le Pape,
les eâts de 1'eglise et lltalie" (1897)— Chretien in E.G. VI. (1899)
pp. 281-291— Bompart in R.G. VII. (1900), pp. 369-387— Higgins in The
Journal of the Society for Comparative Legislation, New Series, IX. (1907),
pp. 252-264.
§ 104. When the Law of Nations began to grow up The

among the States of Christendom, the Pope was the
monarch of one of those States — namely, the so-called States-
Papal States. This State owed its existence to Pepin-
le-Bref and his son Charlemagne, who established it in
gratitude to the Popes Stephen III. and Adrian I., who
crowned them as Kings of the Franks. It remained
in the hands of the Popes till 1798, when it became a
republic for about three years. In 1801 the former
order of things was re-established, but in 1809 it be-
came a part of the Napoleonic Empire. In 1814 it was
re-established, and remained in existence till 1870, when
it was annexed to the Kingdom of Italy. Through-
out the existence of the Papal States, the Popes were
monarchs and, as such, equals of all other monarchs.
Their position was, however, even then anomalous, as
their influence and the privileges granted to them by
the different States were due, not alone to their being
monarchs of a State, but to their being the head of
the Roman Catholic Church. But this anomaly did not
create any real difficulty, since the privileges granted to
the Popes existed within the province of precedence
only.
Italian § 105' Wnen> in 187()> Italy annexed the Papal

Law^f States and made Home her capital, she had to under-
Guaranty. taê ^ ^^ Q| crea^ng a position for the Holy See
and the Pope which was consonant with the importance
of the latter to the Roman Catholic Church. It seemed
impossible that the Pope should become an ordinary
Italian subject and that the Holy See should be an
institution under the territorial supremacy of Italy.
For many reasons no alteration was desirable in the
administration by the Holy See of the affairs of the
Roman Catholic Church or in the position of the Pope
as the inviolable head of that Church. To meet the case
the Italian Parliament passed an Act regarding the
guaranties granted to the Pope and the Holy See, which
is commonly called the " Law of Guaranty/' Accord-
ing to this the position of the Pope and the Holy See is
in Italy as follows : —
The person of the Pope is sacred and inviolable
(article 1), although he is subjected to the Civil Courts
of Italy.1 An offence against his person is to be pun-
ished in the same way as an offence against the King
of Italy (article 2). He enjoys all the honours of a
sovereign, retains the privileges of precedence conceded
to him by Roman Catholic monarchs, has the right to
keep an armed body-guard of the same strength as
before the annexation for the safety of his person and
of his palaces (article 3), and receives an allowance of
3,225,000 francs (article 4). The Vatican, the seat of
the Holy See, and the palaces where a conclave for the
election of a new Pope or where an Oecumenical Council
meets, are inviolable, and no Italian omcial is allowed
to enter them without consent of the Holy See (articles
5-8). The Pope is absolutely free in performing all the
functions connected with his mission as head of the
Roman Catholic Church, and so are his officials (articles
1 See Bonfils, No. 379.
THE HOLY SEE 159
9 and 10). The Pope has the right to send and to

receive envoys, who enjoy all the privileges of the
diplomatic envoys sent and received by Italy (article
11). The freedom of communication between the Pope
and the entire Roman Catholic world is recognised, and
the Pope has therefore the right to a post and telegraph
office of his own in the Vatican or any other place of
residence and to appoint his own post-office clerks
(article 12). And, lastly, the colleges and other insti-
tutions ofthe Pope for the education of priests in Rome
and the environments remain under his exclusive super-
vision, without any interference on the part of the
Italian authorities.
No Pope has as yet recognised this Italian Law of
Guaranty, nor had foreign States an opportunity of
giving their express consent to the position of the Pope
in Italy created by that law. But practically foreign
States as well as the Popes themselves, although the
latter have never ceased to protest against the condition
of things created by the annexation of the Papal States,
have made use of the provisions x of that law. Several
foreign States send side by side with their diplomatic
envoys accredited to Italy special envoys to the Pope,
and the latter sends envoys to several foreign States.
§ 106. The Law of Guaranty is not International inter-
but Italian Municipal Law, and the members of the
Family of Nations have hitherto not made any special
arrangements with regard to the International position the Pope
of the Holy See and the Pope. And, further, there can
be no doubt that since the extinction of the Papal States
the Pope is no longer a monarch whose sovereignty is
derived from his position as the head of a State. For
these reasons many writers2 maintain that the Holy
See and the Pope have no longer any international
1 But the Popes have hitherto a Westlake, I. p. 38, now joins the
never accepted the allowance pro- ranks of these writers,
vided by the Law of Guaranty.
position whatever according to the Law of Nations,

since States only and exclusively are International
Persons. But if the facts of international life and the
actual condition of things in every-day practice are
taken into consideration, this opinion has no basis to
stand upon. Although the Holy See is not a State, the
envoys sent by her to foreign States are treated by the
latter on the same footing with diplomatic envoys as
regards exterritoriality, inviolability, and ceremonial
privileges, and those foreign States which send envoys
to the Holy See claim for them from Italy all the privi-
leges and the position of diplomatic envoys. Further,
although the Pope is no longer the head of a State, the
privileges due to the head of a monarchical State are
still granted to him by foreign States. Of course,
through this treatment the Holy See does not acquire
the character of an International Person, nor does the
Pope thereby acquire the character of a head of a
monarchical State. But for some points the Holy See
is actually treated as though she were an International
Person, and the Pope is treated actually in every point
as though he were the head of a monarchical State. It
must therefore be maintained that by custom, by tacit
consent of the members of the Family of Nations, the
Holy See has a quasi international position. This posi-
tion allows her to claim against all the States treatment
on some points as though she were an International
Person, and further to claim treatment of the Pope in
every point as though he were the head of a monarchical
State. But it must be emphasised that, although the
envoys sent and received by the Holy See must be
treated as diplomatic envoys,1 they are not such in fact,
1 The case of Montagnini, which and the Holy See had come to an
occurred in December 1906, cannot end in 1905 by France recalling her
be quoted against this assertion, for envoy at the Vatican and at the same
Montagnini was not at the time a time sending the passports to Loren-
person enjoying diplomatic privileges. zelli, the Papal Nuncio in Paris.
Diplomatic relations between France Montagnini, who remained at the
THE HOLY SEE 161
for they are not agents for international affairs of

States, but exclusively agents for the affairs of the
Roman Catholic Church. And it must further be em-
phasised that the Holy See cannot conclude inter-
national treaties or claim a vote at international con-
gresses and conferences. The so-called Concordats—
that is, treaties between the Holy See and States with
regard to matters of the Roman Catholic Church — are
not international treaties, although analogous treatment
is usually given to them. Even formerly, when the Pope
was the head of a State, such Concordats were not con-
cluded with the Papal States, but with the Holy See and
the Pope as representatives of the Roman Catholic
Church.
§ 107. Since the Holy See has no power whatever violation
to protect herself and the person of the Pope against Ho^see
violations, the question as to the protection of the Holy p"dethe
See and the person of the Pope arises. I believe that,
since the present international position of the Holy See
rests on the tacit consent of the members of the Family
of Nations, many a Roman Catholic Power would raise
its voice in case Italy or any other State should violate
the Holy See or the person of the Pope, and an inter-
vention for the purpose of protecting either of them
would have the character of an intervention by right.
nunciature in Paris, did not possess It must be specially mentioned that

any diplomatic character after the the seizure of his papers and the
departure of the Nuncio. Neither arrest and expulsion of Montagnini
his arrest and his expulsion in took place because he conspired
December 1906, nor the seizure of his against the French Government by
papers at the nunciature amounted encouraging the clergy to refuse
therefore to an international delin- obedience to French laws. And it
quency on the part of the French must further be mentioned that
Government. The papers left by the Lorenzelli, when he left the nuncia-
former Papal Nuncio Lorenzelli were ture, did not, contrary to all pre-
not touched and remained in the cedent, place the archives of the
archives of the former nunciature nunciature under seals and confide
until the Austrian ambassador in them to the protection of another
Paris, in February 1907, asked the diplomatic envoy in Paris. Details
French Foreign Office to transfer of the case are to be found in R.I.
them to him for the purpose of 2nd Ser. IX. (1907), pp. 60-66, and
handing them on to the Holy See. R.G., XIV. (1907), pp. 175-186.
VOL I. L
Italy herself would certainly make such a violation by

a foreign Power her own affair, although she has no
more than any other Power the legal duty to do so,
and although she is not responsible to other Powers
for violations of the Personality of the latter by the
Holy See and the Pope.
XI
INTERNATIONAL PERSONS OF THE PRESENT DAY
European § 108. All the seventy-four European States are, of

states. course, members of the Family of Nations. They are
the following :
Great Powers are :
Austria-Hungary. Great Britain.
France. Italy.
Germany. Russia.
Smaller States are :
Bulgaria. Portugal.
Denmark. Roumania.
Greece. Servia.
Holland. Spain.
Montenegro. Sweden.
Norway. Turkey.
Very small, but nevertheless full-Sovereign, States
are :
Monaco and Lichtenstein.
Neutralised States are :
Switzerland, Belgium, and Luxemburg.
Half-Sovereign States are :
Andorra (under the protectorate of France and
Spain).
San Marino (under the protectorate of Italy).
Crete (under the suzerainty of Turkey).
INTERNATIONAL PERSONS OF THE PRESENT DAY 163
Part-Sovereign States are :

(a) Member-States of Germany :
Kingdoms : Prussia, Bavaria, Saxony, Wiir-
temberg.
Grand-Duchies : Baden, Hesse, Mecklenburg-
Schwerin, Mecklenburg- Strelitz, Oldenburg.
Dukedoms : Anhalt, Brunswick, Saxe-Alten-
burg, Saxe-Coburg-Gotha, Saxe-Meiningen,
Saxe-Weimar.
Principalities : Reuss Elder Line, Reuss Younger
Line, Lippe, Schaumburg-Lippe, Schwarz-
burg-Rudolstadt, Schwarzburg-Sondershausen
Waldeck.
Free Towns are : Bremen, Liibeck, Hamburg.
(b) Member-States of Switzerland :

Zurich, Berne, Lucerne, Uri, Schwyz, Unter-
walden (ob und nid dem Wald), Glarus, Zug,
Fribourg, Soleure, Basle (Stadt und Land-
schaft), SchafUhausen, Appenzell (beider Rho-
den), St. Gall, Grisons, Aargau, Thurgau,
Tessin, Vaud, Valais, Neuchatel, Geneva.
§ 109. In America there are twenty-one States American

which are members of the Family of Nations, but it £
must be emphasised that the member-States of the five
Federal States on the American continent, although
they are part-Sovereign, have no footing within the
Family of Nations, because the American Federal
States, in contradistinction to Switzerland and Ger-
many, absorb all possible international relations of
their member-States.
In North America there are :
The United States of America.
The United States of Mexico.
In Central America there are :

Costa Eica. Honduras.
Cuba. Nicaragua.
San Domingo. Panama (since 1903).
Guatemala. San Salvador.
Hayti.
In South America there are :
The United States of Ecuador.
Argentina. Paraguay.
Bolivia. Peru.
The United States of Uruguay.
Brazil. The United States
Chili. of Venezuela.
Colombia.
African § HO. In Africa the Negro Republic of Liberia is

states. the only real and full member of the Family of Nations.
Egypt and Tunis are half-Sovereign, the one under
Turkish suzerainty, the other under French protec-
torate. Morocco and Abyssinia are both full-Sovereign
States, but for some parts only within the Family of
Nations. The Soudan has an exceptional position ;
being under the condominium of Great Britain and
Egypt, a footing of its own within the Family of Nations
the Soudan certainly has not.
Asiatic § HI- I*1 Asia only Japan is a full and real member
states. Of fae Family of Nations. Persia, China, Siam, Tibet,
and Afghanistan are for some parts only within that
family.
CHAPTER II
POSITION OF THE STATES WITHIN THE FAMILY
OF NATIONS
INTERNATIONAL PERSONALITY
Vattel, I. §§ 13-25— Hall, § 7— Westlake, I. pp. 293-296— Lawrence, § 57—

Phillimore, I. §§ 144-147— Twiss, I. § 106— Wharton, § 60— Moore, I.
§ 23— Bluntschli, §§ 64-81— Hartmann, § 15— Heffter, § 26— Holtzendorff
in Holtzendorff, II. pp. 47-51— Gareis, §§ 24-25— Liszt, § 7— Ullmann,
§ 38— Bonfils, Nos. 235-241— Despagnet, Nos. 165-166— Nys, II. pp.
176-181— Pradier-Foderd, I. Nos. 165-195— Merignbac, I. pp. 233-238—
Rivier, I. § 19— Fiore, I. Nos. 367-371— Martens, I. § 72— Fontenay,
" Des droits et des devoirs des itats entre enx " (1888)— Fillet in E.G., V.
(1898), pp. 66 and 236, VI. (1899), p. 503— Cavaglieri, "I diritti fonda-
mentali degli Stati nella Societb, Internazionale " (1906).
§ 112. Until the last two decades of the nineteenth The

century all jurists agreed that the membership of the
Family of Nations includes so-called fundamental rights
for States. Such rights are chiefly enumerated as the
right of existence, of self-preservation, of equality, of
independence, of territorial supremacy, of holding and
acquiring territory, of intercourse, and of good name
and reputation. It was and is maintained that these
fundamental rights are a matter of course and self-
evident, since the Family of Nations consists of Sove-
reign States. But no unanimity exists with regard to
the number, the names, and the contents of these
alleged fundamental rights. A great confusion exists
in this matter, and hardly two text-book writers agree
in details with regard to it. This condition of things
has led to a searching criticism of the whole matter,
166 POSITION OF THE STATES
and several writers x have in consequence thereof asked

that the fundamental rights of States should totally
disappear from the treatises on the Law of Nations. I
certainly agree with this. Yet it must be taken into
consideration that under the wrong heading of funda-
mental rights a good many correct statements have
been made for hundreds of years, and that numerous
real rights and duties are customarily recognised which
are derived from the very membership of the Family
of Nations. They are rights and duties which do not
rise from international treaties between a multitude of
States, but which the States customarily hold as Inter-
national Persons, and which they grant and receive
reciprocally as members of the Family of Nations.
They are rights and duties connected with the position
of the States within the Family of Nations, and it is
therefore only adequate to their importance to discuss
them in a special chapter under that heading,
inter- § 113. International Personality is the term which
Per!°onal characterises fitly the position of the States within the
Bod7 a0f Family of Nations, since a State acquires International
Qualities. Personality through its recognition as a member. What
it really means can be ascertained by going back to the
basis 2 of the Law of Nations. Such basis is the com-
mon consent of the States that a body of legal rules
shall regulate their intercourse with one another. Now
a legally regulated intercourse between Sovereign States
is only possible under the condition that a certain
liberty of action is granted to every State, and that,
on the other hand, every State consents to a certain re-
1 See Stoerk in Holtzendorff's of fundamental rights of States is
" Encyklopadie der Rechtswissen- emphatically defended by other
schaft," 2nd ed. (1890), p. 1291 ; writers. See, for instance, Fillet
Jellinek, "System der subjectiven I.e., Liszt, § 7, and Gareis, §§ 24 and
offentlichen Rechte " (1892), p. 302 ; 25. Westlake, I. p. 293, now joins
Heilborn, " System," p. 279 ; and the ranks of those writers who deny
others. The arguments of these the existence of fundamental rights,
writers have met, however, consider- 2 See above, § 12.
able resistance, and the existence
INTERNATIONAL PERSONALITY 167
striction of action in the interest of the liberty of action

granted to every other State. A State that enters into
the Family of Nations retains the natural liberty of
action due to it in consequence of its sovereignty, but
at the same time takes over the obligation to exercise
self-restraint and to restrict its liberty of action in the
interest of that of other States. In entering into the
Family of Nations a State comes as an equal to equals l ;
it demands that certain consideration be paid to its
dignity, the retention of its independence, of its terri-
torial and its personal supremacy. Recognition of a
State as a member of the Family of Nations contains
recognition of such State's equality, dignity, indepen-
dence, and territorial and personal supremacy. But
the recognised State recognises in turn the same qualities
in other members of that family, and thereby it under-
takes responsibility for violations committed by it.
All these qualities constitute as a body the International
Personality of a State, and International Personality
may therefore be said to be the fact, given by the very
membership of the Family of Nations, that equality,
dignity, independence, territorial and personal supre-
macy, and the responsibility of every State are recog-
nised byevery other State. The States are International
Persons because they recognise these qualities in one
another and recognise their responsibility for violations
of these qualities.
§ 114. But the position of the States within the other
Family of Nations is not exclusively characterised by
these
. qualities.
. The .States make a community Jbecause tlie
tion P°si:
of the
there is constant intercourse between them. Inter- states
course is therefore a condition without which the Family Famlfy of
of Nations would not and could not exist. Again, there Natlous-
are exceptions to the protection of the qualities which
constitute the International Personality of the States,
1 See above, § 14.
and these exceptions are likewise characteristic of the

position of the States within the Family of Nations.
Thus, in time of war belligerents have a right to violate
one another's Personality in many ways ; even anni-
hilation ofthe vanquished State, through subjugation
after conquest, is allowed. Thus, further, in time of
peace as well as in time of war, such violations of the
Personality of other States are excused as are com-
mitted in self-preservation or through justified inter-
vention. And, finally, jurisdiction is also important
for the position of the States within the Family of
Nations. Intercourse, self-preservation, intervention,
and jurisdiction must, therefore, likewise be discussed
in this chapter.
II
EQUALITY, RANK, AND TITLES
Vattel, II. §§ 35-48— Westlake, I. pp. 308-312— Lawrence, §§ 112-119—

Phillimore, I. § 147, II. §§ 27-43— Twiss, I. § 12— Halleck, I. pp. 116-
140— Taylor, § 160— Wheaton, §§ 152-159— Moore, I. § 24— Bluntschli,
§§ 81-94— Hartmann, § 14— Hefffcer, §§ 27-28— Holtzendorff in Holtzen-
dorff, II. pp. 11-14— Ullmann, §§ 36 and 37— Bonfils, Nos. 272-278—
Despagnet, Nos. 167-171— Pradier-Fodere", II. Nos. 484-594— Mdrignhac,
I. pp. 310-320— Rivier, I. § 9— Nys, II. pp. 194-199, 208-218— Calvo, I.
§§ 210-259— Fiore, I. Nos. 428-451, and Code, Nos. 388-421— Martens,
I- §§70-71— Lawrence, Essays, pp. 191-213— Westlake, Chapters, pp. 86-
109— Huber, " Die Gleichheit der Staaten" (1909)— Streit in R.I. 2nd
Ser. II. pp. 5-27— Hicks in A.J. II. (1908), pp. 530-561.
, § ^* ê e(lua^y before International Law of all

of states. member-States of the Family of Nations is an invariable
quality derived from their International Personality.1
Whatever inequality may exist between States as
regards their size, population, power, degree of civilisa-
tion, wealth, and other qualities, they are nevertheless
equals as International Persons. This legal equality
has three important consequences :
1 See above, §§ 14 and 113.
EQUALITY, BANK, AND TITLES 169
The first is that, whenever a question arises which

has to be settled by the consent of the members of the
Family of Nations, every State has a right to a vote,
but to one vote only.
The second consequence is that legally — although
not politically — the vote of the weakest and smallest
State has quite as much weight as the vote of the largest
and most powerful. Therefore any alteration of an
existing rule or creation of a new rule of International
Law by a law-making treaty has legal validity for the
signatory Powers and those only who later on accede
expressly or submit to it tacitly through custom.
The third consequence is that — according to the rule
par in parem non habet imperium — no State can claim
jurisdiction over another full-Sovereign State. There-
fore, although foreign States can sue in foreign Courts,1
they cannot as a rule be sued 2 there, unless they volun-
tarily accept 3 the jurisdiction of the Court concerned,
or have submitted themselves to such jurisdiction by
suing in such foreign Court.4
To the rule of equality there are three exceptions:—
First, such States as can for some parts 5 only be
considered International Persons, are not equals of the
full members of the Family of Nations.
Secondly, States under suzerainty and under pro-
tectorate which are half-Sovereign and under the
1 See Phillimore, II. §113 A ; Nys, Vavasseur v. Krupp (1878), L.R. 9
II. pp. 288-296; Loening, "Die Ch. D. 351.
Gerichtsbarkeit iiber fremde Staaten 3 See Prioleau v. United States,
und Souverane" (1903); and the &c. (1866), L.R. 2 Equity. 656.
following cases :— The United States 4 Provided the cross-suit is really
v. Wagner (1867), L.R. 2 Ch. App. connected with the claim in the
582 ; The Republic of Mexico v. action. As regards the German case
Francisco de Arrangoiz, and others, of Hellfeld v. the Russian Govern-
11 Howard's Practice Reports 1 merit, see Kohler in Z.V. IV. (1910),
(quoted by Scott, " Cases on Inter- pp. 309-333 ; the opinions of
national Law," 15)02, p. 170) ; The Laband, Meili, and Seuffert, ibidem,
Sapphire (1870), 11 Wallace, 164. pp. 334-448; Baty in The Law
See also below, § 348. Magazine and Review. XXV. (1909-
2 See De Haber r. the Queen of 1910), p. 207 ; Wolf man in A.J. IV.
Portugal (1851), 17 Ch. D. 171, and (1910), pp. 373-383.
6 See above, § 103.
guardianship 1 of other States with regard to the man-

agement of external affairs, are not equals of States
which enjoy full sovereignty.
Thirdly, the part-sovereign member-States of a
Federal State are not equals of full-Sovereign States.
It is, however, quite impossible to lay down a
hard and fast general rule concerning the amount of
inequality between the equal and the unequal States,
as everything depends upon the circumstances and
conditions of the special case.
political § 116. Legal equality must not be confounded with
o?GrSitny political equality. The enormous differences between
Powers. States as regards their strength are the result of a natural
inequality which, apart from rank and titles, finds its
expression in the province of policy. Politically, States
are in no manner equals, as there is a difference between
the Great Powers and others. Eight States must at
present be considered as Great Powers — namely, Great
Britain, Aus^ria-Hungafy, France, Gerjaara'ny, Italy, and
Ku«£ia in Europe, the United States in America, and
Japan in Asia. All arrangements made by the body
of the Great Powers naturally gain the consent of the
minor States, and the body of the six Great Powers in
Europe is therefore called the European Concert. The
Great Powers are the leaders of the Family of Nations,
and every progress of the Law of Nations during the
past is the result of their political hegemony, although
the initiative towards the progress was frequently
taken by a minor Power.
But, however important the position and the influ-
ence of the Great Powers may be, they are by no means
derived from a legal basis or rule.2 It is nothing else
than powerful example which makes the smaller States
1 See above, §§ 91 and 93. and 114; Westlake, I. pp. 308, 309;
2 This is, however, maintained by and Pitt Cobbett, " Cases and
a few writers See, for instance, Opinions on International Law," 2nd
Lorimer, I. p. 170 ; Lawrence, §§ 113 ed. vol. I. (1909), p. 50.
EQUALITY, RANK, AND TITLES 171
agree to the arrangements of the Great Powers. Nor has

a State the character of a Great Power by law. It is *
nothing else than its actual size and strength which
makes a State a Great Power. Changes, therefore,^
often take place. Whereas at the time of the Vienna
Congress in 1815 eight States — namely, Great Britain,
Austria, France, Portugal, Prussia, Spain, Sweden, and
Eussia — were still considered Great Powers, their number
decreased soon to five, when Portugal, Spain, and Sweden
lost that character. But the so-called Pentarchy of
the remaining Great Powers turned into a Hexarchy
after the unification of Italy, because the latter became
at once a Great Power. The United States rose as a
Great Power out of the civil war in 1865, and Japan
did the same out of the war with China in 1895. Any
day a change may take place and one of the present
Great Powers may lose its position, or one of the weaker
States may become a Great Power. It is a question
of political influence, and not of law, whether a State
is or is not a Great Power. Whatever large-sized State
with a large population gains such strength that
its political influence must be reckoned with by the
other Great Powers, becomes a Great Power itself.1
§ 117. Although the States are equals as Inter- Rank of
national Persons, they are nevertheless not equals as
regards rank. The differences as regards rank are
recognised by International Law, but the legal equality
of States within the Family of Nations is thereby as
little affected as the legal equality of the citizens is
1 In contradistinction to the gene- legal inequality. I cannot agree
rally recognised political hegemony of with Lawrence when he says (§ 114,
the Great Powers, Lawrence (§§ 113 p. 276) :— " ... in a system of rules
and 114) and Taylor (§ 69) maintain depending, like International Law,
that the position of the Great Powers for their validity on general consent,
is legally superior to that of the what is political is legal also, if it is
smaller States, being a "Primacy" generally accepted and acted on."
or " Overlordship." This doctrine, The Great Powers are de facto, by the
which professedly seeks to abolish smaller States, recognised as political
the universally recognised rule of the leaders, but this recognition does not
equality of States, has no sound involve recognition of legal super-
basis, and confounds political with iority.
within a modern State where differences in rank and

titles of the citizens are recognised by Municipal Law.
The vote of a State of lower rank has legally as much
weight as that of a State of higher rank. And the
difference in rank nowadays no longer plays such an
important part as in the past, when questions of etiquette
gave occasion for much dispute. It was in the six-
teenth and seventeenth centuries that the rank of the
different States was zealously discussed under the head-
ing of droit de pre'se'ance or questions de preseance. The
Congress at Vienna of 1815 intended to establish an
order of precedence within the Family of Nations, but
dropped this scheme on account of practical difficulties.
Thus the matter is entirely based on custom, which
recognises the following three rules :
(1) The States are divided into two classes — namely,
States with and States without royal honours. To the
first class belong Empires, Kingdoms, Grand Duchies,
and the great Republics such as France, the United
States of America, Switzerland, the South American
Republics, and others. All other States belong to the
second class. The Holy See is treated as though it
were a State with royal honours. States with royal
honours have exclusively the right to send and receive
* diplomatic envoys of the first class J — namely, ambas-
sadors ; and their monarchs address one another as
^"brothers" in their official letters. States with royal
honours always precede other States.
(2) Full-Sovereign States always precede those under
suzerainty or protectorate.
(3) Among themselves States of the same rank do
not precede one another. Empires do not precede
kingdoms, and since the time of Cromwell and the first
French Republic monarchies do not precede republics.
But the Roman Catholic States always concede prece-
EQUALITY, RANK, AND TITLES 173
dence to the Holy See, and the monarchs recognise

among themselves a difference with regard to cere-
monials between emperors and kings on the one hand,
and, on the other, grand dukes and other monarchs.
§ 118. To avoid questions of precedence, on signing The
a treaty, States of the same rank observe a conventional nat."
usage which is called the " Alternat." According to
that usage the signatures of the signatory States of a
treaty alternate in a regular order or in one determined
by lot, the representative of each State signing first
the copy which belongs to his State. But sometimes
that order is not observed, and the States sign either in
the alphabetical order of their names in French or in
no order at all (pele-mcle).
§ 119. At the present time, States, save in a few Titles of
exceptional instances, have no titles, although formerly
such titles did exist. Thus the former Republic of
Venice as well as that of Genoa was addressed as " Serene
Republic/' and up to the present day the Republic of
San Marino 1 is addressed as " Most Serene Republic."
Nowadays the titles of the heads of monarchical States
are in so far of importance to International Law as they
are connected with the rank of the respective States.
Since States are Sovereign, they can bestow any titles
they like on their heads. Thus, according to the German
Constitution of 1871, the Kings of Prussia have the title
" German Emperor " ; the Kings of England have since
1877 borne the title " Emperor of India " ; the Prince
of Servia assumed in 1881, that of Roumania in 1882,
that of Bulgaria in 1908, and that of Montenegro in
1910, the title " King." But no foreign State is obliged
to recognise such a new title, especially when a higher
rank would accrue to the respective State in consequence
of such a new title of its head. In practice such recog-
nition will regularly be given when the new title really
1 See Treaty Series, 1900, No. 9.
corresponds with the size and the importance of the

respective State.1 Servia, Koumania, Bulgaria, and
Montenegro had therefore no difficulty in obtaining
recognition as kingdoms.
With the titles of the heads of States are connected
predicates. Emperors and Kings have the predicate
" Majesty," Grand Dukes " Royal Highness/' Dukes
'' Highness/' other monarchs " Serene Highness." The
Pope is addressed as " Holiness " (Sanctitas). Not to
be confounded with these predicates, which are recog-
nised by the Law of Nations, are predicates which
originally were bestowed on monarchs by the Pope and
which have no importance for the Law of Nations.
Thus the Kings of France called themselves Rex Chris-
tianissimus or " First-born Son of the Church," the
Kings of Spain have called themselves since 1496 Rex
Catholicus, the Kings of England since 1521 Defensor
Fidei, the Kings of Portugal since 1748 Rex Fidelis-
simus, the Kings of Hungary since 1758 Rex Apostolicus.
Ill
DIGNITY
Vattel, II. §§ 35-48— Lawrence, § 120— Phillimore, II. §§ 27-43— Halleck, I.

pp. 124-142— Taylor, § 162— Wheaton, § 160— Bluntsohli, §§ 82-83—
Hartmann, § 15— Heffter, §§ 32, 102, 103— Holtzendorff in Holtzendorff,
II. pp. 64-69— Ullmann, § 38— Bonfils, Nos. 279-284— Despagnet, Nos.
184-186— Moore, I. pp. 310-320— Pradier-Fodere, II. Nos. 451-483—
Rivier, I. pp. 260-262— Nys, II. pp. 212-214— Calvo, III. §§ 1300-1302—
Fiore, I. Nos. 439-451— Martens, I. § 78.
Dignity a § 120. The majority of text-book writers maintain

Quality, faofo there is a fundamental right of reputation and of
good name belonging to every State. Such a right,
however, does not exist, because no duty corresponding
1 History, however, reports several recognised by France till 1745, by
cases where recognition was withheld Spain till 1759, nor by Poland till
for a long time. Thus the title 1764. And the Pope did not recog-
"Peter
Emperor of Russia," assumed
the Great in 1701, by
was not nise the inkingly
assumed 1701, tilltitle
1786.of Prussia,
DIGNITY 175
to it can be traced within the Law of Nations. Indeed,

the reputation of a State depends just as much upon
behaviour as that of every citizen within its boundaries.
A State which has a corrupt government and behaves
unfairly and perfidiously in its intercourse with other
States will be looked down upon and despised, whereas
a State which has an uncorrupt government and behaves
fairly and justly in its international dealings will be
highly esteemed. No law can give a good name and
reputation to a rogue, and the Law of Nations does not
and cannot give a right to reputation and good name
to such a State as has not acquired them through its
attitude. There are some States — nomina sunt odiosa !
— which indeed justly possess a bad reputation.
On the other hand, a State as a member of the
Family of Nations possesses dignity as an International
Person. Dignity is a quality recognised by other
States, and it adheres to a State from the moment of
its recognition till the moment of its extinction, what-
ever behaviour it displays. Just as the dignity of
every citizen within a State commands a certain amount
of consideration on the part of fellow-citizens, so the
dignity of a State commands a certain amount of con-
sideration on the part of other States, since otherwise
the different States could not live peaceably in the
community which is called the Family of Nations.
§ 121. Since dignity is a recognised quality of States ConseX/o^
as International Persons, all members of the Family of
Nations grant reciprocally to one another by custom
certain rights and ceremonial privileges. These are
chiefly the rights to demand-Athat their heads shall
not be libelled and slandered(^>that their heads and
likewise their diplomatic envoys shall be granted ex-
territoriality and inviolability when abroad, and at
home and abroad in the official intercourse with repre-
sentatives offoreign States shall be granted certain
titles (3 feat their men-of-war shall be granted exterri-

toriality when in foreign waters (tytfhat their symbols of
authority, such as flags and coats of arms, shall not
be made improper use of and not be treated with dis-
X respect on the part of other States. Every State must
not only itself comply with the duties corresponding to
these rights of other States, but must also prevent its
subjects from such acts as violate the dignity of foreign
States, and must punish them for acts of that kind which
it could not prevent. The Municipal Laws of all States
must therefore provide for the punishment of those who
commit offences against the dignity of foreign States,1
and, if the Criminal Law of the land does not contain
such provisions, it is no excuse for failure by the respec-
tive States to punish offenders. But it must be empha-
sised that a State must prevent and punish such acts
only as really violate the dignity of a foreign State.
Mere criticism of policy, historical verdicts concerning
the attitude of States and their rulers, utterances of
moral indignation condemning immoral acts of foreign
Governments and their monarchs need neither be sup-
pressed nor punished.
Maritime § 122. Connected with the dignity of States are the
menials maritime ceremonials between vessels and between
vessels and forts which belong to different States. In
former times discord and jealousy existed between the
States regarding such ceremonials, since they were
looked upon as means of keeping up the superiority of
one State over another. Nowadays, so far as the Open
Sea is concerned, they are considered as mere acts of
courtesy recognising the dignity of States. They are
1 According to the Criminal Law with the intent to disturb peace and
of England, " every one is guilty of friendship between the United King-
a misdemeanour who publishes any dom and the country to which any
libel tending to degrade, revile, or such person belongs." See Stephen,
expose to hatred and contempt any " A Digest of the Criminal Law,"
foreign prince or potentate, am- article 91.
bassador or other foreign dignitary,
INDEPENDENCE AND SUPREMACY 177
the outcome of international usages, and not of Inter-

national Law, in honour of the national flags. They
are carried out by dipping flags or striking sails or
firing guns.1 But so far as the territorial maritime belt
is concerned, littoral States can make laws concerning
maritime ceremonials to be observed by foreign mer-
chantmen.2
IV
INDEPENDENCE AND TERRITORIAL AND PERSONAL
SUPREMACY
Vattel, I. Preliminaires, §§ 15-17— Hall, § 10— Westlake, I. pp. 308-312—

Lawrence, §§ 58-61— Philli more, I. §§ 144-149— Twiss, I. § 20— Halleck,
I. pp. 93-113— Taylor, § 160— Wheaton, §§ 72-75— Bluntschli, §§ 64-69—
Hartmann, § 15— Heffter, §§ 29 and 31— Holtzendorff in Holtzendorff , II.
pp. 36-60— Gareis, §§ 25-26— Ullmann, § 38— Bonfils, Nos. 253-271—
Despaguet, Nos. 187-189— Me*rignhac, I. pp. 233-383— Pradier-Fodere,
I. Nos. 287-332— Rivier, I. § 21— Nys, II. pp. 182-184— Calvo, I. §§ 107-
109— Fiore, I. Nos. 372-427, and Code, Nos. 180-387— Martens, I. §§ 74
and 75— Westlake, Chapters, pp. 86-106.
§ 123. Sovereignty^ as supreme authority, which is indepen-

independent of any other earthly authority, may be Territorial
said to have different aspects. As excluding depen-
dence from any other authority, and in especial from
the authority of another State, sovereignty is indepen-
dence. It is external independence with regard to the
liberty of action outside its borders in the intercourse
with other States which a State enjoys. It is internal
independence with regard to the liberty of action of
a State inside its borders. As comprising the power
of a State to exercise supreme authority over all per-
sons and things within its territory, sovereignty is terri-
torial supremacy. As comprising the power of a State
to exercise supreme authority over its citizens at home
and abroad, sovereignty is personal supremacy.
1 See Halleck, I. pp. 124-142, 2 See below, § 187.
where the matter is treated with alj
details. Sue also below, § 257,
VOL. I. M
s
For these reasons a State as an International Person
possesses independence and territorial and personal
supremacy. These three qualities are nothing else than
three aspects of the very same sovereignty of a State,
and there is no sharp boundary line between them.
The distinction is apparent and useful, although internal
independence is nothing else than sovereignty compris-
ing territorial supremacy, but viewed from a different
point of view.
Conse- § 124. Independence and territorial as well as per-
indepen-°f sonal supremacy are not rights, but recognised and
Territorial therefore protected qualities of States as International
and Persons. The protection granted to these qualities by
Supr°ena the Law of Nations finds its expression in the right of
macy- every State to demand that other States abstain them-
selves, and prevent their agents and subjects, from
committing any act which contains a violation of its
independence and its territorial as well as personal
supremacy.
% In consequence of its external independence, a State
can manage its international affairs according to dis-
cretion, especially enter into alliances and conclude
other treaties, send and receive diplomatic envoys,
acquire and cede territory, make war and peace.
In consequence of its internal independence and
territorial supremacy, a State can adopt any Constitu-
tion it likes, arrange its administration in a way it
thinks fit, make use of legislature as it pleases, organise
its forces on land and sea, build and pull down for-
tresses, adopt any commercial policy it likes, and so
on. According to the rule, quidquid est in territorio est
etiam de territorio, all individuals and all property
within the territory of a State are under the latter's
dominion and sway, and even foreign individuals and
property fall at once under the territorial supremacy
of a State when they cross its frontier. /Aliens
residing in a State can therefore be compelled to pay

rates and taxes, and to serve in the police under the
same conditions as citizens for the purpose of maintain-
ing order and safety. But aliens may be expelled, or
not received at all. On the other hand, hospitality may
be granted to them whatever act they have committed
abroad, provided they abstain from making the hos-
pitable territory the basis for attempts against a foreign
J^ State. And a State can through naturalisation adopt
foreign subjects residing on its territory without the
consent of the home State, provided the individuals
themselves give their consent. £•
In consequence of its personal supremacy, a State
can treat its subjects according to discretion, and it
retains its power even over such subjects as emigrate
without thereby losing their citizenship. A State may
therefore command itsx?itizens abroad to come home and
fulfil their military service, may require them to pay
rates and taxes for the support of the home finances,
may ask them to comply with certain conditions in case
they desire marriages concluded abroad or wills made
abroad recognised by the home authorities, can punish
them on their return for crimes they have committed
abroad.
§ 125. The duty of every State itself to abstain and violations
to prevent its agents and subjects from any act which
contains a violation 1 of another State's independence or
territorial and personal supremacy is correlative to the Personal
respective right of the other State. It is impossible
to enumerate all such actions as might contain a viola-
tion of this duty. But it is of value to give some illus-
trative examples. Thus, in the interest of the inde-
pendence ofother States, a State is not allowed to inter-
fere in the management of their international affairs
nor to prevent them from doing or to compel them
\
to do certain acts in their international intercourse.

Further, in the interest of the territorial supremacy of
other States, a State is not allowed to send its troops,
its men-of-war, or its police forces into or through
foreign territory, or to exercise an act of administration
or jurisdiction on foreign territory, without permission.1
Again, in the interest of the personal supremacy of
other States, a State is not allowed to naturalise aliens
residing on its territory without their consent,2 nor to
prevent them from returning home for the purpose of
fulfilling military service or from paying rates and taxes
to their home State, nor to incite citizens of foreign
States to emigration.
Restric- § 126. Independence is not boundless liberty of a
in«ie8puen0n State to do what & likes without any restriction what-
dence. ever. The mere fact that a State is a member of the
Family of Nations restricts its liberty of action with
regard to other States because it is bound not to inter-
vene in the affairs of other States. And it is generally
admitted that a State can through conventions, such as
a treaty of alliance or neutrality and the like, enter into
many obligations which hamper it more or less in the
management of its international affairs. Independence
is a question of degree, and it is therefore also a question
o[ d<yrrce whether the independence of a Slate is de-
stroyed or not by certain restrictions. Thus it is gene-
rally admitted that States under suzerainty or under
protectorate are so much restricted that they are not
fully independent, but half-Sovereign. And the same
is the case with the member-States of a Federal State
which are part-Sovereign. On the other hand, the
1 But neighbouring States very 2 See, however, below (§ 299),
often give such permission to one where the fact is stated that some
another. Switzerland, for instance, States naturalise an alien through
allows German Custom House officers the very fact of his taking domicile
to be stationed on two railway on their territory,
stations of Basle for the purpose of
examining the luggage of travellers
from Basle to Germany.
restrictions connected with the neutralisation of States

does not, according to the correct opinion,1 destroy
their independence, although they cannot make war
except in self-defence, .cannot conclude alliances, and
are in other ways hampered in their liberty of action.
From a political and a legal point of view it is of
great importance that the States imposing and those
accepting restrictions upon independence should be
clear in their intentions. For the question may arise
whether these restrictions make the respective State a
dependent one.
Thus through article 4 of the Convention of London
of 1884 between Great Britain and the former South
African Republic stipulating that the latter should
not conclude any treaty with any foreign State, the
Orange Free State excepted, without approval on the
part of Great Britain, the Republic was so much re-
stricted that Great Britain considered herself justified
in defending the opinion that the Republic was not
an independent State, although the Republic itself and
many writers were of a different opinion.2
Thus, to give another example, through article 1 of
the Treaty of Havana 3 of May 22, 1903, between the
United States of America and Cuba, stipulating that
Cuba shall never enter into any such treaty with a
foreign Power as will impair, or tend to impair, the
independence of Cuba, and shall abstain from other
acts, the Republic of Cuba is so much restricted that
some writers maintain — wrongly, I believe — that Cuba
is under an American protectorate and only a half-
Sovereign State.
1 See above, § 97. See Eivier, I. p. 89, and Holtzendorff
2 It is of interest to state the fact in Holtzendorff, II. p. 115.
that, before the last phase of the 3 See Martens, N.R.G. 2nd Ser.
conflict between Great Britain and XXXII. (1905), p. 79. As regards
the Republic, influential Continental the international position of Cuba,
writers stated the suzerainty of see Whitcomb, " La situation inter-
Great Britain over the Republic. nationale de Cuba " (1905).
Again, the Kepublic of Panama is, by the Treaty of

Washington J of 1904, likewise burdened with some
restrictions in favour of the United States, but here,
too, it would be wrong to maintain that Panama is
under an American protectorate.
Restric- § 127. Just like independence, territorial supremacy
Territorial ôes no^ g™ a boundless liberty of action. Thus, by
SuPre- customary International Law every State has a right
to demand that its merchantmen can pass through the
maritime belt of other States. Thus, further, naviga-
tion on so-called international rivers in Europe must
be open to merchantmen of all States. Thus, thirdly,
foreign monarchs and envoys, foreign men-of-war, and
foreign armed forces must be granted exterritoriality.
Thus, fourthly, through the right of protection over
citizens abroad which is held by every State according
to customary International Law, a State cannot treat
foreign citizens passing through or residing on its terri-
tory arbitrarily according to discretion as it might treat
its own subjects ; it cannot, for instance, compel them to
serve 2 in its army or navy. Thus, to give another and
fifth example, a State, in spite of its territorial supre-
macy, is not allowed to alter the natural conditions of
its own territory to the disadvantage of the natural
conditions of the territory of a neighbouring State — for
instance, to stop or to divert the flow of a river which
runs from its own into neighbouring territory.3
In contradistinction to these restrictions by the
customary Law of Nations, a State can through treaties
1 See Martens, N.RG. 2nd Ser. est exempt de tout service militaire
XXXI. (1905), p. 601. dans 1'Etat ou il; reside. Cependant
* Great Britain would seem to dans les colonies britanniques et,
uphold an exception to this rule, for dans une certaine mesure, dans tons
Lord Reay, one of her delegates, les pays en voie de formation, la
declared — see " Deuxieme Conference situation est tout autre et la popula-
Internationale de la Paix, Actes et tion toute enti&re, sans distinction
Documents," vol. III. p. 41 — the de nationalite, peut etre appelee sous
following at the second Hague Peace les armes pour d^fendre leurs foyers
Conference of 1907 : " Nous recon- menaced."
naissons qu'en regie gendrale le neutre 8 See below, § 178 a.
enter into obligations of many a kind without thereby

losing its internal independence and territorial supre-
macy. Thus France by three consecutive treaties of
peace — namely, that of Utrecht of 1713, that of Aix-
la-Chapelle of 1748, and that of Paris of 1763— entered
into the obligation to pull down and not to rebuild the
fortifications of Dunkirk.1 Napoleon I. imposed by
the Peace Treaty of Tilsit of 1807 upon Prussia the
restriction not to keep more than 42,000 men under
arms. Again, article 29 of the Treaty of Berlin of 1878
imposed upon Montenegro the restriction not to possess
a navy.2 There is hardly a State in existence which is
not in one point or another restricted in its territorial
supremacy by treaties with foreign Powers.
§ 128. Personal Supremacy does not give a bound- Restric
less liberty of action either. Although the citizens of
a State remain un4er its power when abroad, such
State is restricted in the exercise of this power with
regard to all those matters in which the foreign State
on whose territory these citizens reside is competent
in consequence of its territorial supremacy. The duty
to respect the territorial supremacy of a foreign State
must prevent a State from doing all acts which, al-
though they are according to its personal supremacy
within its competence, would violate the territorial
supremacy of this foreign State. -V Thus, for instance, a
State is prevented from requiring such acts from its
citizens abroad as are forbidden to them by the Muni-
cipal Law of the land in which they reside. *
But a State may also by treaty obligation be for
some parts restricted in the liberty of action with
regard to its citizens. Thus articles 5, 25, 35, and 44
of the Treaty of Berlin of 1878 restrict the personal
supremacy of Bulgaria, Montenegro, Servia, and Eou-
1 This restriction was abolished by 2 It is doubtful whether this re-
article 17 of the Treaty of Paris of striction is still in force ; see below,
1783. § 258.
mania in so far as these States are thereby obliged not

to impose any religious disabilities on any of their
subjects.1
SELF-PRESERVATION
Vattel, II. §§ 49-53— Hall, §§ 8, 83-86— Westlake, I. pp. 296-304— Phillimore,

I. §§ 210-220— Twiss, I. §§ 106-112— Halleck, I. pp. 93-113— Taylor,
§§ 401-409— Wheaton, §§ 61-62— Moore, II. §§ 215-219— Hartmann, § 15
—Heffter, § 30— Holtzendorff in Holtzendorff, II. pp. 51-56— Gareis,
§ 25— Liszt, § 7— Ullmann, § 38— Bonfils, Nos. 242-252— Despagnet,
Nos. 172-175— Merignhac, I. pp. 239-245— Pradiere-Fode're', I. Nos. 211-
286— Rivier, I. § 20— Nys, II. pp. 178-181— Calvo, I. §§ 208-209— Fiore,
I. Nos. 452-466— Martens, I. § 73— Westlake, Chapters, pp. 110-125.
Self -pre- § 129. From the earliest time of the existence of

an'excuse the Law of Nations self-preservation was considered
tionliola sufficient justification for many acts of a State which
violate other States. Although, as a rule, all States
have mutually to respect one another's Personality
and are therefore bound not to violate one another, as
an exception, certain violations of another State com-
mitted bya State for the purpose of self-preservation
are not prohibited by the Law of Nations. Thus,
self-preservation is a factor of great importance for
the position of the States within the Family of
Nations, and most writers maintain that every State
has a fundamental right of self-preservation.2 But
nothing of the kind is actually the case, if the real facts
of the law are taken into consideration. If every State
really had a right of self-preservation, all the States
would have the duty to admit, suffer, and endure every
violation done to one another in self-preservation. But
such duty does not exist. On the contrary, although
1 See above, § 73. every State to act in favour of its
2 This right was formerly fre- interests in case of a conflict between
qnently called droit de convenance, its own and the interests of another
and was said to exist in the right of State. See Heffter, § 26.
SELF-PRESERVATION 185
self-preservation is in certain cases an excuse recognised

by International Law,^no State is obliged patiently to
submit to violations done to it by such other State as
acts in self-preservation, but can repulse them. j~ It is
a fact that in certain cases violations committed in
self-preservation are not prohibited by the Law of
Nations. But, nevertheless, they remain violations and
can therefore be repulsed. Self-preservation is conse-
quently an excuse, because violations of other States are
in certain exceptional cases not prohibited when they
are committed for the purpose and in the interest of
self-preservation, although they need not patiently be
suffered and endured by the States concerned.
S 130. It is frequently maintained that every viola- /What acts
. 5 . T .. T , ,, J ,. of self-
tion is excused so long as it was caused by the motive / preserva-
of self-preservation, but it becomes more and more
recognised that violations of other States in the in-
terest of self-preservation are excused in cases of neces-
sitii only. Such acts of violence in the interest of self-
preservation are exclusively excused as are necessary
in self-defence, because otherwise the acting State
would have to suffer or have to continue to suffer a
violation against itself. If an imminent violation or
the continuation of an already commenced violation
can be prevented and redressed otherwise than by a
violation of another State on the part of the endangered
State, this latter violation is not necessary, and there-
fore not excused and justified^^/When, to give an ex-
ample, aState is informed that on neighbouring territory
a body of armed men is being organised for the purpose
of a raid into its own territory, and when the danger
can be removed through an appeal to the authorities
of the neighbouring country, no case of necessity has
arisen. But if such an appeal is fruitless or not pos-
sible, or if there is danger in delay, a case of necessity
arises and the threatened State is justified in invading
186 POSITION OP THE STATES
the neighbouring country and disarming the intending

raiders. ^
The reason of the thing, of course, makes it necessary
for every State to judge for itself when it considers
a case of necessity has arisen, and it is therefore im-
possible tolay down a hard-and-fast rule regarding the
question when a State can or cannot have recourse
to self-help which violates another State. Everything
depends upon the circumstances and conditions of the
special case, and it is therefore of value to give some
historical examples.
case of § 131. After the Peace of Tilsit of 1807 the British
Danish Government1 was cognisant of the provision of some
^* secret articles of this treaty that France should be at
liberty to seize the Danish fleet and to make use of
it against Great Britain. This plan, when carried out,
would have endangered the position of Great Britain,
which was then waging war against France. As Den-
mark was not capable of defending herself against an
attack of the French army in North Germany under
Bernadotte and Davoust, who had orders to invade
Denmark, the British Government requested Denmark
to deliver up her fleet to the custody of Great Britain,
and promised to restore it after the war. And at the
same time the means of defence against French invasion
and a guaranty of her whole possessions were offered
to Denmark by England. The latter, however, refused
to comply with the British demands, whereupon the
British considered a case of necessity in self-preserva-
tion had arisen, shelled Copenhagen, and seized the
Danish fleet.
case of § 132. " Amelia Island, at the mouth of St. Mary's
island3" River, and at that time in Spanish territory, was seized
in 1817 by a band of buccaneers, under the direction
of an adventurer named McGregor, who in the name
1 I follow Hall's (§ 86) summary of the facts.
SELF-PRESERVATION 187
of the insurgent colonies of Buenos Ayres and Venezuela

preyed indiscriminately on the commerce of Spain and
of the United States. The Spanish Government not
being able or willing to drive them off, and the nuisance
being one which required immediate action, President
Monroe called his Cabinet together in October 1817,
and directed that a vessel of war should proceed to the
island and expel the marauders, destroying their works
and vessels/' 1
§ 133. In 1ft32 during the Canadian rebellion, several f
Case of
hundreds of insurgents got hold of an island in the river C
Niagara, on the territory of the United States, and with
the help of American subjects equipped a boat called
the Caroline, with the purpose of crossing into
Canadian territory and bringing material help to the
insurgents. The Canadian Government, timely informed
of the imminent dariger, sent a British force over into
the American territory, which obtained possession of
the Caroline, seized her arms, and then sent her
adrift down the falls of the Niagara. The United States
complained of this British violation of her territorial
supremacy, but Great Britain was in a position to prove
that her act was necessary in self-preservation, since
there was not sufficient time to prevent the imminent
invasion of her territory through application to the
United States Government.2
1 See Wharton, § 50 a, and Moore, vessel (see Moore, II. § 309, pp. 895-
II. § 216. 903). That a vessel sailing under
2 See Wharton, I. § 50 c, Moore, another State's flag can nevertheless
II. § 217, and Hall, § 84. With the be seized on the high seas in case
case of the Caroline is connected she is sailing to a port of the cap-
the case of Macleod, which will be turing State for the purpose of an
discussed below, § 446. Hall (§ 86), invasion or bringing material help to
Martens (I. § 73), and others quote insurgents, there is no doubt. No
also the case of the Virginius better case of necessity of self-
(1873) as an example of necessity of preservation could be given, since
self-preservation, but it seems that the danger is imminent and can be
the Spanish Government did not frustrated only by capture of the
plead self-preservation but piracy as vessel.
justification of the capture of the
VI
INTERVENTION
Vattel, II. §§ 54-62— Hall, §§ 88-95— Westlake, I. pp. 304-308— Lawrence,

§§ 62-70— Phillimore, I. §§ 390-415A— Halleck, I. pp. 94-109— Taylor,
§§ 410-430— Walker, § 7— Wharton, I. §§ 45-72— Moore, VI. §§ 897-926
— Wheaton, §§ 63-71— Bluntschli, §§ 474-480— Hartmann, § 17— Heffter,
§§ 44-46— Geffcken in Holtzendorff, II. pp. 131-168— Gareis, § 26—
Liszt, § 7— Ullmann, §§ 163-164— Bonfils, Nos. 295-323— Despagnet,
Nos. 193-216— Me*rignhac, I. pp. 284-310— Pradier-Fodere', I. Nos. 354-
441— Rivier, I. § 31— Nys, II. pp. 185-193, 200 -205— Calvo, I. §§ 110-206
— Fiore, I. Nos. 561-608, and Code, Nos. 543-557— Martens, I. § 76—
Bernard, "On the Principle of non-Intervention" (1860) — Hautefeuille,
" Le principe de non-intervention " (1863) — Stapleton, "Intervention
and Non-intervention, or the Foreign Policy of Great Britain from 1790
to 1865" (1866)— Geffcken, "Das Recht der Intervention" (1887)—
Kebedgy, "De 1' intervention " (1890)— Floecker, "De 1'intervention en
droit international" (1896) — Drago, " Cobro coercitivo de deudas
publicas " (1906)— Moulin, " La doctrine de Drago " (1908).
Concep-
tion and ^
§ 134. Intervention is dictatorial interference by a
character" State in the affairs of another State for the purpose of
of Inter-
vention. maintaining or altering the actual condition of things.
Such intervention can take place by right or without
a right, but it always concerns the external indepen-
dence or the territorial or personal supremacy of the
respective State, and the whole matter is therefore of
great importance for the position of the States within
the Family of Nations. -VThat intervention is, as a rule,
forbidden by the Law of Nations which protects the
International Personality of the States, there is no
doubt. ^ On the other hand, there is just as little doubt 1
that this rule has exceptions, for there are interventions
which take place by right, and there are others which,
although they do not take place by right, are never-
theless admitted by the Law of Nations and are excused
in spite of the violation of the Personality of the respec-
tive States they involve.
Intervention can take place in the external as well
1 The so-called doctrine of non- who deny that intervention is ever
intervention as defended by some justifiable, is a political doctrine
Italian writers (see Fiore, I. No. 565), without any legal basis whatever.
INTERVENTION 189
as in the internal affairs of a State. It concerns in the

first case the external independence, and in the second
either the territorial or the personal supremacy. But
it must be emphasised that intervention proper is always
dictatorial interference, not interference pure and simple.1
Therefore intervention must neither be confounded with
good offices, nor with mediation, nor with intercession,
nor with co-operation, because none of these imply a
dictatorial interference. Good offices is the name for
such acts of friendly Powers interfering in a conflict
between two other States as tend to call negotiations into
existence for the peaceable settlement of the conflict,
and mediation is the name for the direct conduct on
the part of a friendly Power of such negotiations.2
Intercession is the name for the interference consisting
in friendly advice given or friendly offers made with
regard to the domestic affairs of another State. And,
lastly, co-operation is the appellation of such inter-
ference as consists in help and assistance lent by one
State to another at the latter's request for the purpose
of suppressing an internal revolution. Thus, for ex-
ample, Russia sent troops in 1849, at the request of
Austria, into Hungary to assist Austria in suppressing
the Hungarian revolt.
§ 135. It is apparent that such interventions as take interven-
place by right must be distinguished from others. R°ght.y
Wherever there is no right of intervention, although it
may be admissible and excused, an intervention violates
either the external independence or the territorial or
the personal supremacy. )^But if an intervention takes
place by right, it never contains such a violation, be-
cause the right of intervention is always based on a
legal restriction upon the independence or territorial or
personal supremacy of the State concerned, and because
this1 Many writers constantly commit

confusion. 2 See below, vol. II. § 9.
the latter is in duty bound to submit to the intervention.

Now a State may have a right of intervention against
another State, mainly for six reasons 1 :
(1) A Suzerain State has a right to intervene in
many affairs of the Vassal, and a State which holds a
protectorate has a right to intervene in all the external
affairs of the protected State.
(2) If an external affair of a State is at the same
time by right an affair of another State, the latter has
a right to intervene in case the former deals with that
affair unilaterally. The events of 1878 provide an
illustrative example. Eussia had concluded the pre-
liminary Peace of San Stefano with defeated Turkey ;
Great Britain protested because the conditions of this
peace were inconsistent with the Treaty of Paris of 1856
and the Convention of London of 1871, and Russia
agreed to the meeting of the Congress of Berlin for the
purpose of arranging matters. Had Russia persisted
in carrying out the preliminary peace, Great Britain as
well as other signatory Powers of the Treaty of Paris
and the Convention of London doubtless possessed a
right of intervention.
(3) If a State which is restricted by an international
treaty in its external independence or its territorial or
personal supremacy does not comply with the restric-
tions concerned, the other party or parties have a right
to intervene. Thus the United States of America, in
1906, exercised intervention in Cuba in conformity with
article 3 of the Treaty of Havana 2 of 1903, which
stipulates : " The Government of Cuba consents that the
United States may exercise the right to intervene for
1 The enumeration is not intended tegrityof Norway under the condition
to be exhaustive. that she does not cede any part of her
a See Martens, N.R.G. 2nd Ser. territory to any foreign Power would
XXXII. (1905), p. 79.— Even if no have a right to intervene in case
special right of intervention is stipu- such a cession were contemplated,
lated, it nevertheless exists in such although the treaty concerned does
cases. Thus— see below, § 574— those not stipulate this.
Powers which have guaranteed the in-
INTERVENTION 191
the preservation of Cuban independence, the mainte-

nance of a Government adequate for the protection of
life, property, and individual liberty. . . ." And like-
wise the United States of America, in 1904, exercised
intervention in Panama in conformity with article 7
of the Treaty of Washington l in 1903, which stipulates :
" The same right and authority are granted to the
United States for the maintenance of public order in
the cities of Panama and Colon and the territories and
harbours adjacent thereto in case the Eepublic of
Panama should not be, in the judgment of the United
States, able to maintain such order."
(4) If a State in time of peace or war violates such
rules of the Law of Nations as are universally recognised
by custom or are laid down in law-making treaties,
other States have a right to intervene and to make the
delinquent submit tc\ the rules concerned. If, for in-
stance, State
a undertook to extend its jurisdiction over
the merchantmen of another State on the high seas,
not only would this be an affair between the two States
concerned, but all other States would have a right to
intervene because the freedom of the open sea is a uni-
versally recognised principle. Or if a State which is a
party to the Hague Regulations concerning Land War-
fare were to violate one of these Regulations, all the
other signatory Powers would have a right to intervene.
(5) A State that has guaranteed by treaty the form
of government of a State or the reign of a certain dynasty
over the same has a right 2 to intervene in case of change
of form of government or of dynasty, provided the
respective treaty of guaranty was concluded between
1 See Martens, N.K.Gr. 2nd Ser. a certain form of government or
XXXI. (1905), p. 599. dynasty. That historical events can
2 But this is not generally recog- justify such State in considering
nised ; see, for instance, Hall, § 93, itself no longer bound by such treaty
•who denies the existence of such according to the principle rebus sic
a right. I do not see the reason stantibus (see below, § 539) is another
why a State should not be able to matter.
undertake the obligation to retain
the respective States and not between their monarchs

personally.
(6) The right of protection l over citizens abroad,
which a State holds, may cause an intervention by right
to which the other party is legally bound to submit.
And it matters not whether protection of the life,
security, honour, or property of a citizen abroad is con-
cerned.
The so-called Drago 2 doctrine, which asserts the rule
that intervention is not allowed for the purpose of
making a State pay its public debts, is unfounded, and
has not received general recognition, although Argen-
tina and some other South American States tried to
establish this rule at the second Hague Peace Confer-
ence of 1907. But this Conference adopted, on the
initiative of the United States of America, a " Conven-
tion3 respecting the Limitation of the Employment of
Force for the Kecovery of Contract Debts." According
to article 1 of this Convention, the contracting Powers
agree not to have recourse to armed force for the re-
covery of contract debts claimed from the Government
of one country by the Government of another country
as being due to its nationals. This undertaking is,
however, not applicable when the debtor State refuses
or neglects to reply to an offer of arbitration, or, after
accepting the offer, renders the settlement of the com-
promis impossible, or, after the arbitration, fails to
submit to the award. — It must be emphasised that the
stipulations of this Convention concern the recovery of
1 See below, § 319. (1909), pp. 184-197 ; Scott, " The
2 The Drago doctrine originates Hague Peace Conferences" (1909),
from Louis M. Drago, sometime vol. I. pp. 415-422 ; Calvo in R.I. 2nd
Foreign Secretary of the Republic Ser. V. (1903), pp. 597-623 ; Drago
of Argentina. See Drago, " Cobro in R.G. XIV. (1907), pp. 251-287;
coenutivo de deudas publicas " Moulin in R.G. XIV. (1907), pp. 417-
(1906; ; Barclay, " Problems of Inter- 472 ; Hershey in A.J. I. (1907), pp.
national Practice, &c. " (1907), pp. 26-45 ; Drago in A.J. I. (1907),
115-122; Moulin, "La Doctrine de pp. 692-720.
Drago" (1908); Higgins, "The 3 See Scott in A.J. II. (1908),
Hague Peace Conferences, &c." pp. 78-94.
INTERVENTION 193
all contract debts, whether or no they arise from public

loans.
§ 136. In contradistinction to intervention by right,
there are other interventions which must be considered interven-
admissible, although they violate the independence or êf^to
the territorial or personal supremacy of the State con- Right,
cerned, and although such State has by no means any
legal duty to submit patiently and sutler the interven-
tion. Of such interventions in default of right there
are two kinds generally admitted and excused — namely,
such as are necessary in self-preservation and such as
are necessary in the interest of the balance of power. -V
(1) As regards interventions for the purpose of self-
preservation, it is obvious that, if any necessary viola-
tion committed in self-preservation of the International
Personality of other States is, as shown above (§ 130),
excused, such violation must also be excused as is con-
tained in an intervention. And it matters not whether
such an intervention exercised in self-preservation is
provoked by an actual or imminent intervention on the
part of a third State, or by some other incident.
(2) As regards intervention in the interest of the
balance of power, it is likewise obvious that it must
be excused. An equilibrium between the members of
the Family of Nations is an indispensable l condition of
the very existence of International Law. If the States
could not keep one another in check, all Law of Nations
would soon disappear, as, naturally, an over-powerful
State would tend to act according to discretion instead
of according to law. Since the Westphalian Peace of
1 A survey of the opinions con- "Le principe d'equilibre et le concert
cerning the value of the principle europeen " (1909), pp. 90-108, and
of balance of power is given by 494-513. It is necessary to empha-
Bulmerincq, " Praxis, Theorie und sise that the principle of the balance
Codification des Vb'lkerrechts " of power is not a legal principle and
(1874), pp. 40-50, but Bulmerincq therefore not one of International
himself rejects the principle. See also Law, but one of International policy ;
Donnadieu, " Essai sur la the"orie de it is a political principle indispensable
1'^quilibre" (1900) where the matter to the existence of International Law
is exhaustively treated, and Dupuis, in its present condition.
VOL. I. N
1648 the principle of balance of power has played a

preponderant part in the history of Europe. It found
express recognition in 1713 in the Treaty of Peace of
Utrecht, it was the guiding star at the Vienna Congress
in 1815 when the map of Europe was rearranged, at
the Congress of Paris in 1856, the Conference of London
in 1867, and the Congress of Berlin in 1878. The States
themselves and the majority of writers agree upon the
admissibility of intervention in the interest of balance
of power. Most of the interventions exercised in the
interest of the preservation of the Turkish Empire must,
in so far as they are not based on treaty rights, be
classified as interventions in the interest of balance of
power. Examples of this are supplied by collective
interventions exercised by the Powers in 1886 for the
purpose of preventing the outbreak of war between
Greece and Turkey, and in 1897 during the war between
Greece and Turkey with regard to the island of Crete,
interven- § 137. Many jurists maintain that intervention is
interest^ likewise admissible, or even has a basis of right, when
of HU- exercised in the interest of humanity for the purpose of
stopping religious persecution and endless cruelties in
time of peace and war. That the Powers have in the
past exercised intervention on these grounds, there is
no doubt. Thus Great Britain, France, and Eussia
intervened in 1827 in the struggle between revolutionary
Greece and Turkey, because public opinion was horri-
fied at the cruelties committed during this struggle.
And many a time interventions have taken place to
stop the persecution of Christians in Turkey. But
whether there is really a rule of the Law of Nations
which admits such interventions may well be doubted.
Yet, on the other hand, it cannot be denied that public
opinion and the attitude of the Powers are in favour
of such interventions, andXit may perhaps be said that
in time the Law of Nations will recognise the rule that
INTERVENTION 195
interventions in the interests of humanity are admis-

sible provided they are exercised in the form of a
collective intervention of the Powers.1*^
§ 138. Careful analysis of the rules of the Law of interven-
Nations regarding intervention and the hitherto exer- facto a,
cised practice of intervention make it apparent that
intervention is de facto a matter of policy just like war.
This is the result of the combination of several factors.
Since, even in the cases in which it is based on a right,
intervention is not compulsory, but is solely in the dis-
cretion ofthe State concerned, it is for that reason alone
a matter of policy. Since, secondly, every State must
decide for itself whether vital interests of its own are
at stake and whether a case of necessity in the interest
of self-preservation has arisen, intervention is for this
part again a matter oi; policy. Since, thirdly, the ques-
tion of balance of power is so complicated and the his-
torical development of the States involves gradually an
alteration of the division of power between the States,
it must likewise be left to the appreciation of every
State whether or not it considers the balance of power
endangered and, therefore, an intervention necessary.
And who can undertake to lay down a hard-and-fast rule
with regard to the amount of inhumanity on the part
of a Government that would justify intervention accord-
ing to the Law of Nations ?
No State will ever intervene in the affairs of another
if it has not some important interest in doing so, and it
has always been easy for such State to find or pretend
some legal justification for an intervention, be it self-
preservation, balance of power, or humanity. There is
no great danger to the welfare of the States in the fact
that intervention is de facto a matter of policy. Too
many interests are common to all the members of the
1 See Hall, §§ 91 and 95, where below, § 292, and Rougier in E.G.
the merits of the problem are dis- XVII. (1910), pp. 468-526.
cussed from all sides. See also
Family of Nations, and too great is the natural jealousy

between the Great Powers, for an abuse of intervention
on the part of one powerful State without calling other
States into the field. Since unjustified intervention
violates the very principles of the Law of Nations, and
since, as I have stated above (§ 135), in case of a viola-
tion of these principles on the part of a State every
other State has a right to intervene, any unjustifiable
intervention by one State in the affairs of another gives
a right of intervention to all other States. Thus it
becomes apparent here, as elsewhere, that the Law of
Nations is intimately connected with the interests of
all the States, and that they must themselves secure
the maintenance and realisation of this law. This con-
dition of things tends naturally to hamper more the
ambitions of weaker States than those of the several
Great Powers, but it seems unalterable.
The § 139. The de facto political character of the whole
Doctrine ma^ter °^ intervention becomes clearly apparent through
the so-called Monroe doctrine l of the United States of
America. This doctrine, at its first appearance, was in-
directly a product of the policy of intervention in the
interest of legitimacy which the Holy Alliance pursued
in the beginning of the nineteenth century after the
downfall of Napoleon. The Powers of this alliance were
inclined to extend their policy of intervention to America
and to assist Spain in regaining her hold over the former
Spanish colonies in South America which had declared
and maintained their independence, and which were
recognised as independent Sovereign States by the
United States of America. To meet and to check the
1 Wharton, § 57 ; Dana's Note No. h, la fin du XIX0 siecle " (1896 ) ;

30 to Wharton, p. 36 ; Tucker, " The Beaumarchais, " La doctrine de
Monroe Doctrine " (1885) ; Moore, Monroe " (1898) ; Redaway, " The
"The Monroe Doctrine" (1895), and Monroe Doctrine" (1898); Pdkin,
Digest, VI. §§ 927-968; Cespedes, " Les Etats-Unis ct la doctrine de
"La doctrine de Monroe" (1893); Monroe " (1900).
Mdrignhac, " La doctrine de Monroe
INTERVENTION 197
imminent danger, President James Monroe delivered his

celebrated Message to Congress on December 2, 1823.
This Message contains two quite different, but never-
theless equally important, declarations.
(1) In connection with the unsettled boundary lines
in the north-west of the American continent, the Mes-
sage declared " that the American continents, by the
free and independent condition which they have assumed
and maintained, are henceforth not to be considered
as subjects for future colonisation by any European
Power." This declaration was never recognised by
the European Powers, and Great Britain* and Russia
protested expressly against it. In fact, however, no
occupation of American territory has since then taken
place on the part of a European State.
(2) In regard to the contemplated intervention of
the Holy Alliance between Spain and the South Ameri-
can States, the Message declared that the United States
had not intervened, and never would intervene, in wars
in Europe, but could not, on the other hand, in the
interest of her own peace and happiness, allow the allied
European Powers to extend their political system to
any part of America and try to intervene in the inde-
pendence ofthe South American republics.
(3) Since the time of President Monroe, the Monroe
doctrine has been gradually somewhat extended in so
far as the United States claims a kind of political hege-
mony over all the States of the American continent.
Whenever a conflict occurs between such an American
State and a European Power, the United States is ready
to exercise intervention. Through the civil war her
hands were to a certain extent bound in the sixties of
the last century, and she could not prevent the occu-
pation of Mexico by the French army, but she inter-
vened in
! 1865. Again, she did not intervene in 1902
1 See Moore, VI. § 957.
when Great Britain, Germany, and Italy took combined

action against Venezuela, because she was cognisant
of the fact that this action intended merely to make
Venezuela comply with her international duties. But
she intervened in 1896 in the boundary conflict between
Great Britain and Venezuela when Lord Salisbury had
sent an ultimatum to Venezuela, and she retains the
Monroe doctrine as a matter of principle.
Merits of § 140. The importance of the Monroe doctrine is of
Monroe a political, not of a legal character. Since the Law of
Doctrine. Nations is a law between all the civilised States as equal
members of the Family of Nations, the States of the
American continent are subjects of the same inter-
national rights and duties as the European States.
The European States are, as far as the Law of Nations
is concerned, absolutely free to acquire territory in
America as elsewhere. And the same legal rules are
valid concerning intervention on the part of European
Powers both in American affairs and in affairs of other
States. But it is evident that the Monroe doctrine, as
the guiding star of the policy of the United States, is
of the greatest political importance. And it ought not
to be maintained that this policy is in any way incon-
sistent with the Law of Nations. In the interest of
balance of power in the world, the United States con-
siders ita necessity that European Powers should not
acquire more territory on the American continent than
they actually possess. She considers, further, her own
welfare so intimately connected with that of the other
American States that she thinks it necessary, in the
interest of self-preservation, to watch closely the rela-
tions of these States with Europe and also the relations
between these very States, and eventually to intervene
in conflicts. Since every State must decide for itself
whether and where vital interests of its own are at stake
and whether the balance of power is endangered to its
INTERCOURSE 199
disadvantage, and since, as explained above (§ 138),

intervention is therefore de facto a matter of policy,
there is no legal impediment to the United States carry-
ing out a policy in conformity with the Monroe doctrine.
This policy hampers indeed the South American States,
but with their growing strength it will gradually dis-
appear. For, whenever some of these States become
Great Powers themselves, they will no longer submit
to the political hegemony of the United States, and the
Monroe doctrine will have played its part.
VII
INTERCOURSE
Grotius, II. c. 2, § 13— Vattel, II. §§ 21-26— Hall, § 13— Taylor, § 160—
Bluntschli, § 381 and p. 26 — Hartmann, § 15— Heffter, §§ 26 and 33—
Ullmann, § 38— Bonfils, Nos. 285-289— Despagnet, No. 183— Mdrignhac,
I. pp. 256-257— Pradier-Fodere, I. No. 184— Rivier, I. pp. 262-264—
Nys, II. pp. 221-228— Calvo, III. §§ 1303-1305— Fiore, I. No. 370—
Martens, I. § 79.
§ 141. Many adherents of the doctrine of funda- inter-

mental rights include therein also a right of intercourse
of every State with all others. This right of intercourse p?esuppo-
is said to contain a right of diplomatic, commercial, national
A. i j.
postal, i
telegraphic i-' intercourse,
• J oft intercourse
• A "i
by rail- Person-
aiity.
way, a right of foreigners to travel and reside on the
territory of every State, and the like. But if the real
facts of international life are taken into consideration,
it becomes at once apparent that such a fundamental
right of intercourse does not exist. All the conse-
quences which are said to follow from the right of
intercourse are not at all consequences of a right,
but nothing else than consequences of the fact that
intercourse between the States is a condition without
which a Law of Nations would not and could not exist.
The civilised States make a community of States because
they are knit together through their common interests

and the manifold intercourse which serves these in-
terests. Through intercourse with one another and
with the growth of their common interests the Law of
Nations has grown up among the civilised States.
Where there is no intercourse there cannot be a com-
munity and a law for such community. A State cannot
be a member of the Family of Nations and an Inter-
national Person, if it has no intercourse whatever with
at least one or more other States. Varied intercourse
with other States is a necessity for every civilised
State. The mere fact that a State is a member of the
Family of Nations shows that it has various inter-
course with other States, for otherwise it would never
have become a member of that family. Intercourse is
therefore one of the characteristics of the position of
the States within the Family of Nations, and it may be
maintained that intercourse is a presupposition of the
international Personality of every State. But no special
right or rights of intercourse between the States exist
according to the Law of Nations. It is because such
special rights of intercourse do not exist that the States
conclude special treaties regarding matters of post,
telegraphs, telephones, railways, and commerce. On
the other hand, most States keep up protective duties
to exclude or hamper foreign trade in the interest of
their home commerce, industry, and agriculture. And
although as a rule they allow l aliens to travel and
to reside on their territory, they can expel every foreign
subject according to discretion.
conse- § 142. Intercourse being a presupposition of Inter-
interCes°f naônal Personality, the Law of Nations favours inter-
course as course in every way. S-The whole institution of legation
posltionof serves the interest of intercourse between the States,
1 That an alien has no right to Musgrove v. Chun Teeong Toy, L.R.
demand to be admitted to British (1891), App. Gas. 272.
territory was decided in the case of
JURISDICTION 201
as does the consular institution. The right of legation,1 inter

which every full-Sovereign State undoubtedly holds, is
held in the interest of intercourse, as is certainly the allty
right of protection over citizens abroad 2 which every
State possesses. The freedom of the Open Sea,3 which
has been universally recognised since the end of the
first quarter of the nineteenth century, the right of
every State to the passage of its merchantmen through
the maritime belt4 of all other States, and, further,
freedom of navigation for the merchantmen of all nations
on so-called international rivers,5 are further examples
of provisions of the Law of Nations in the interest of
international intercourse. X
The question is frequently discussed and answered
in the affirmative whether a State has the right to
require such States as are outside the Family of Nations
to open their ports and allow commercial intercourse.
Since the Law of Nations is a law between those States
only which are members of the Family of Nations, it
has certainly nothing to do with this question, which
is therefore one of mere commercial policy and of
morality.
VIII
JURISDICTION
Hall, §§ 62, 75-80— Westlake, I. pp. 236-271— Lawrence, §§ 93-109—

Phillimore, I. §§ 317-356— Twiss, I. §§ 157-171— Halleck, I. pp. 186-245
—Taylor, §§ 169-171— Wheaton, §§ 77-151— Moore, II. §§ 175-249—
Bluntschli, §§ 388-393— Heffter, §§ 34-39— Bonfils, Nos. 263-266— Rivier,
I. § 28— Nys, II. pp. 257-263— Fiore, I. Nos. 475-588.
§ 143. Jurisdiction is for several reasons a matter

of importance as regards the position of the States
within the Family of Nations. States possessing inde-
1 See below, § 360. is really a right in the interest of
2 See below, § 319. The right of intercourse.
Erotection over citizens abroad is 3 See below, § 259.
requently said to be a special * See below, § 188.
right of self-preservation, but it 5 See below, § 178.
202 POSITION OP THE STATES
states pendence and territorial as well as personal supremacy

Family of can naturally extend or restrict their jurisdiction as far
Nations. as tkev jê. However, as members of the Family of
Nations and International Persons, the States must
exercise self-restraint in the exercise of this natural
power in the interest of one another. Since intercourse
of all kinds takes place between the States and their
subjects, the matter ought to be thoroughly regulated
by the Law of Nations. But such regulation has as
yet only partially grown up. The consequence of both
the regulation and non-regulation of jurisdiction is that
concurrent jurisdiction of several States can often at
the same time be exercised over the same persons and
matters. And it can also happen that matters fall
under no jurisdiction because the several States which
could extend their jurisdiction over these matters refuse
to do so, leaving them to each other's jurisdiction.
Restric- s'
tionsupon
144. As all persons and things
°.
within the territory
Territorial or a otate tall under its territorial supremacy, every
tion.sd State has jurisdiction over them. The Law of Nations,
however, gives a right to every State to claim so-called
exterritoriality and therefore exemption from local
jurisdiction chiefly for its head,1 its diplomatic envoys,2
its men-of-war,3 and its armed forces 4 abroad. And
partly by custom and partly by treaty obligations,
Eastern non-Christian States, Japan now excepted, are
restricted5 in their territorial jurisdiction with regard
to foreign resident subjects of Christian Powers.
§ 145. The Law of Nations does not prevent a State
^rom exercising jurisdiction over its subjects travelling
abroad. or residing abroad, since they remain under its per-
sonal supremacy. As every State can also exercise
1 Details below, §§ 348-353, and 2 Details below, §§ 385-105.
356.— The exemption of a State itself 3 Details below, §§ 450-451.
from the jurisdiction of another is not * Details below, § 445.
based upon a claim to exterritoriality, 5 Details below, §§ 318 and 440.
but upon the claim to equality ; see
above, § 115.
J URISDICTION 203
jurisdiction over aliens1 within its boundaries, such

aliens are often under two concurrent jurisdictions.
And, since a State is not obliged to exercise jurisdiction
for all matters over aliens on its territory, and since
the home State is not obliged to exercise jurisdiction
over its subjects abroad, it may and does happen that
aliens are actually for some matters under no State's
jurisdiction.
§ 146. As the Open Sea is not under the sway of Jurisdic-
any
But State,
it is a no ruleState
of thecanLawexercise its jurisdiction
of Nations there, open sea6
that the vessels
and the things and persons thereon remain during the
time they are on the Open Sea under the jurisdiction
of the State under whose flag they sail.2 It is another
rule of the Law of Rations that piracy 3 on the Open
Sea can be punished by any State, whether or no
the pirate sails under the flag of a State. Further,4
a general practice seems to admit the claim of every
maritime State to exercise jurisdiction over cases of
collision at sea, whether the vessels concerned are or
are not sailing under its flag. Again, in the interest
of the safety of the Open Sea, every State has the right
to order its men-of-war to ask any suspicious merchant-
man they meet on the Open Sea to show the flag, to
arrest foreign merchantmen sailing under its flag with-
out an authorisation for its use, and to pursue into the
Open Sea and to arrest there such foreign merchantmen
as have committed a violation of its law whilst in its
ports or maritime belt.5 Lastly, in time of war belli-
gerent States have the right to order their men-of-
war to visit, search, and eventually capture on the
Open Sea all neutral vessels for carrying contraband,
breach of blockade, or unneutral services to the enemy.
§ 147. ManyJ States claim jurisdiction and threaten criminal
Jurisdic-
1 See below, § 317. * See below, § 265.
2 See below, § 260. 6 See below, §§ 265-266.
turnover punishment for certain acts committed by a foreigner

inFofeig™ in foreign countries.1 States which claim jurisdiction
of this kind threaten punishment for certain acts either
against the State itself, such as high treason, forging
bank-notes, and the like, or against its citizens, such as
murder or arson, libel and slander, and the like. These
States cannot, of course, exercise this jurisdiction as
long as the foreigner concerned remains outside their
territory. But if, after the committal of such act, he
enters their territory and comes thereby under their
territorial supremacy, they have an opportunity of
inflicting punishment. The question is, therefore,
whether States have a right to jurisdiction over acts of
foreigners committed in foreign countries, and whether
the home State of such an alien has a duty to acqui-
esce in the latter's punishment in case he comes into
the power of these States. The question must be an-
swered inthe negative. For at the time such criminal
acts are committed the perpetrators are neither under
the territorial nor under the personal supremacy of the
States concerned. And a State can only require respect
for its laws from such aliens as are permanently or
transiently within its territory. No right for a State
to extend its jurisdiction over acts of foreigners com-
mitted in foreign countries can be said to have grown
up according to the Law of Nations, and the right of
protection over citizens abroad held by every State
would justify it in an intervention in case one of its
citizens abroad should be required to stand his trial
before the Courts of another State for criminal acts
which he did not commit during the time he was under
the territorial supremacy of such State.2 In the
1 See Hall, § 62 ; Westlake, I. pp. Law has studied the question at
251-253 ; Lawrence, § 104 ; Taylor, several meetings and in 1883, at its
§ 191 ; Moore, II. §§ 200 and 201 ; meeting at Munich (see Annuaire,
Phillimore, I. § 334. VII. p. 156), among a body of fifteen
2 The Institute of International articles concerning the conflict of the
JURISDICTION 205
only l case which is reported — namely, in the case of

Cutting — an intervention took place according to this
view. In 1886, one A. K. Cutting, a subject of the United
States, was arrested in Mexico for an alleged libel against
one Emigdio Medina, a subject of Mexico, which was
published in the newspaper of El Paso in Texas. Mexico
maintained that she had a right to punish Cutting,
because according to her Criminal Law offences com-
mitted by foreigners abroad against Mexican subjects
are punishable in Mexico. The United States, however,
intervened,2 and demanded Cutting's release. Mexico
refused to comply with this demand, but nevertheless
Cutting was finally released, as the plaintiff withdrew his
action for libel. Since Mexico likewise refused to comply
with the demand of^ the United States to alter her
Criminal Law for the purpose of avoiding in the future
a similar incident, diplomatic practice has not at all
settled the subject.
Criminal Laws of different States, proved to be a case of a crime
adopted the following (article 8) :— committed within Spanish juris-
" Every State has a right to punish diction. The case of John Anderson
acts committed by foreigners outside — see Moore, I. § 174, p. 933 — is like-
its territory and violating its penal wise not relevant, as he claimed to be
laws when those acts contain an a British subject,
attack upon its social existence or 2 See Westlake, I. p. 252 ; Taylor,
endanger its security and when they § 192; Calvo, VI. §§ 171-173;
are not provided against by the Moore, II. § 201, and "Keport on
Criminal Law of the territory where Extraterritorial Crime and the Cut-
they take place." But it must be ting Case " (1887) ; Rolin in R.I. XX.
emphasised that this resolution has (1888), pp. 559-577. The case is
value dc lege fcrenda only. fully discussed and the American
1 The case of Cirilo Pouble — see claim is disputed by Mendelssohn
Moore, II. § 200, pp. 227-228— con- Bartholdy, "Das raumliche Herr-
cerning which the United States at schaftsgebiet des Strafgesetzes "
first were inclined to intervene, (1908), pp. 135-143.
CHAPTER III
RESPONSIBILITY OF STATES
I
ON STATE EESPONSIBILITY IN GENERAL
Grotius, II. c. 21, § 2— Pufendorf, VIII. c. 6, § 12— Vattel, II. §§ 63-78—

Hall, § 65— Halleck, I. pp. 440-444— Wharton, I. § 21 -Moore, VI. §§
979-1039— Wheaton, § 32— Bluntschli, § 74— Heffter, §§ 101-104—
Holtzendorff in Holtzendorff, II. pp. 70-74— Liszt, § 24— Ullmann, § 39
— Bonfils, Nos. 324-332— Despagnet, No. 466— Piedelievre, I. pp. 317-
322— Pradier-Fode're', I. Nos. 196-210— Rivier, I. pp. 40-44— Calvo, III.
§§ 1261-1298— Fiore, I. Nos. 659-679, and Code, Nos. 591-610—
Martens, I. § 118 — Clunet, " Offenses et actes hostiles commis par
particuliers contre un e"tat Stranger" (1887) — Triepel, " Volkerrecht
und Landesrecht" (1899), pp. 324-381— Anzillotti, "Teoria generale
della responsabilith dello stato nel diritto internazionale " (1902) — Wiese,
" Le droit international appliqu£ aux guerres civiles " (1898), pp. 43-65 —
Rougier, " Les guerres civiles et le droit des gens" (1903), pp. 448-474
— Baty, " International Law " (1908), pp. 91-242— Anzillotti in R.G. XIII.
(1906), pp. 5-29 and 285-309— Foster in A.J. I. (1907), pp. 5-10— Bar in
R.I. 2nd Ser. I. (1899), pp. 464-481.
Nature of § 148. It is often maintained that a State, as a

State
Responsi- sovereign. person, can 111 '"u-i-j.
nave no legal responsibility
whatever. This is only correct with reference to cer-
tain acts of a State towards its subjects. Since a State
can abolish parts of its Municipal Law and can make
new Municipal Law, it can always avoid legal, although
not moral, responsibility by a change of Municipal Law.
Different from this internal autocracy is the external
responsibility of a State to fulfil its international legal
duties. Responsibility for such duties is, as will be re-
membered,1 aquality of every State as an International
Person, without which the Family of Nations could not
peaceably exist. Although there is no International
206
ON STATE RESPONSIBILITY IN GENERAL 207
Court of Justice which could establish such responsi-

bility and pronounce a fine or other punishment against
a State for neglect of its international duties, State
responsibility concerning international duties is never-
theless a legal responsibility. For a State cannot
abolish or create new International Law in the same
way as it can abolish or create new Municipal Law. A
State, therefore, cannot renounce its international duties
unilaterally1 at discretion, but is and remains legally
bound by them. And although there is not and never
will be a central authority above the single States to
enforce the fulfilment of these duties, there is the legal-
ised self-help of the single States against one another.
For every neglect of an international legal duty consti-
tutes an international delinquency.2 and the violated
State can through reprisals or even war compel the
delinquent State to comply with its international duties.
It is only theorists who deny the possibility of a legal
responsibility of States, the practice of the States
themselves recognises it distinctly, although there may
in a special case be controversy as to whether a re-
sponsibility isto be borne. And State responsibility
is now in a general way recognised for the time of war
by article 3 of the Hague Convention of 1907, concern-
ing the .Laws and Customs of War on Land, which
stipulates : "A belligerent party which violates the
provisions of the said Regulations shall, if the case
demands, be liable to make compensation. It shall be
responsible for all acts committed by persons forming
part of its armed forces."
§ 149. Now if we examine the various international original
duties out of which responsibility of a State may rise, and
1 See Annex to Protocol I. of of a treaty, or modify the stipula-
Conference of London, 1871, where tions thereof, unless with the consent
the Signatory Powers proclaim that of the contracting Powers by means
" it is an essential principle of the of an amicable arrangement."
Law of Nations that no Power can 2 See below, § 151.
liberate itself from the engagements
208 RESPONSIBILITY OF STATES
vicarious
we find that there is a necessity for two different kinds
°f State responsibility to be distinguished. They may
biiity. be namec[ " original " in contradistinction to " vica-
rious " responsibility. I name as " original " the re-
sponsibility borne by a State for its own — that is, its
Government's actions, and for such actions of the lower
agents or private individuals as are performed at the
Government's command or with its authorisation. But
States have to bear another responsibility besides that
just mentioned. For States are, according to the Law
of Nations, in a sense responsible for certain acts other
than their own — namely, certain unauthorised injurious
acts of their agents, of their subjects, and even of such
aliens as are for the time living within their terri-
tory. This responsibility of States for acts other than
their own I name " vicarious " responsibility. Since the
Law of Nations is a law between States only, and since
States are the sole exclusive subjects of International
Law, individuals are mere objects1 of International Law,
and the latter is unable to confer directly rights and
duties upon individuals. And for this reason the Law
of Nations must make every State in a sense responsible
for certain internationally injurious acts committed by
its officials, subjects, and such aliens as are temporarily
resident on its territory.2
Essential § 150. It is, however, obvious that original and
between06 vicari°us State responsibility are essentially different.
Original Whereas the one is responsibility of a State for a neglect
vicarious of its own duty, the other is not. A neglect of inter-
Smy°nsl national legal duties by a State constitutes an inter-
national delinquency. The responsibility which a State
bears for such delinquency is especially grave, and
1 See below, § 290. his able article in E.G. XIII. (1900),
J The distinction between original p. 292. The fact that he does not
and vicarious responsibility was first appreciate this distinction is pre-
made, in 1905, in the first edition of judicial to the results of his re-
this treatise and ought therefore to searches concerning the responsibility
have been discussed by Anzillotti in of States.
INTERNATIONAL DELINQUENCIES 209
requires, apart from other especial consequences, a

formal expiatory act, such as an apology at least, by
the delinquent State to repair the wrong done. On
the other hand, the vicarious responsibility which a
State bears requires chiefly compulsion to make those
officials or other individuals who have committed inter-
nationally injurious acts repair as far as possible the
wrong done, and punishment, if necessary, of the wrong-
doers. In case a State complies with these requirements,
no blame falls upon it on account of such injurious acts.
But of course, in case a State refuses to comply with
these requirements, it commits thereby an international
delinquency, and its hitherto vicarious responsibility
turns ipso facto into original responsibility.
II
STATE RESPONSIBILITY FOR INTERNATIONAL
DELINQUENCIES
See the literature quoted above at the commencement of § 148.
§ 151. International delinquency is every injury to concep-

another State committed by the head and the Govern- J^r°f
ment of a State through violation of an international J^°nal
legal duty. Equivalent to acts of the head and Govern- quencies.
ment are acts of officials or other individuals com-
manded or authorised by the head or Government.
An international delinquency is not a crime, because
the delinquent State, as a Sovereign, cannot be pun-
ished, although compulsion may be exercised to procure
a reparation of the wrong done.
International delinquencies in the technical sense of
the term must not be confounded either with so-called
" Crimes against the Law of Nations " or with so-called
" International
VOL. I. Crimes." " Crimes against the OLaw of
Nations " in the wording of many Criminal Codes of

the single States are such acts of individuals against
foreign States as are rendered criminal by these Codes.
Of these acts, the gravest are those for which the State
on whose territory they are committed bears a vicarious
responsibility according to the Law of Nations. " Inter-
' national Crimes," on the other hand, refer to crimes like
piracy on the high seas or slave trade, which either every
State can punish on seizure of the criminals, of whatever
nationality they may be, or which every State has by
the Law of Nations a duty to prevent.
An international delinquency must, further, not be
confounded with discourteous and unfriendly acts.
Although such acts may be met by retorsion, they are
not illegal and therefore not delinquent acts.
Subjects § 152. An international delinquency may be com-
nationai" mitted by every member of the Family of Nations, be
Deiin- sucn member a full-Sovereign, half-Sovereign, or part-
Sovereign State. Yet, half- and part-Sovereign States
can commit international delinquencies in so far only
as they have a footing within the Family of Nations,
and therefore international duties of their own. And
even then the circumstances of each case decide whether
the delinquent has to account for its neglect of an inter-
national duty directly to the wronged State, or whether
it is the full-Sovereign State (suzerain, federal, or pro-
tectorate-exercising State) to which the delinquent
State is attached that must bear a vicarious responsi-
bility for the delinquency. On the other hand, so-called
Colonial States without any footing whatever within the
Family of Nations and, further, the member-States of
the American Federal States, which likewise lack any
footing whatever within the Family of Nations because
all their possible international relations are absorbed
by the respective Federal States, cannot commit an
international delinquency. Thus an inj urious act against
France committed by the Government of the Common-

wealth ofAustralia or by the Government of the State
of California in the United States of America, would not
be an international delinquency in the technical sense
of the term, but merely an internationally injurious act
for which Great Britain or the United States of America
must bear a vicarious responsibility. An instance of
this is to be found in the conflict l which arose in 1906
between Japan and the United States of America on
account of the segregation of Japanese children by the
Board of Education of San Francisco and the demand
of Japan that this measure should be withdrawn. The
Government of the United States at once took the side
of Japan, and endeavoured to induce California to com-
ply with the Japanese demands.
§ 153. Since States are juristic persons, the question state
arises, Whose internationally injurious acts are to be abfe to
considered State acts and therefore international de-
linquencies ? It is obvious that acts of this kind are,
first, all such acts as are performed by the heads of
States or by the members of Government acting in
that capacity, so that their acts appear as State acts.
Acts of such kind are, secondly, all acts of officials or
other individuals which are either commanded or
authorised by Governments. On the other hand, un-
authorised acts of corporations, such as Municipalities,
or of officials, such as magistrates or even ambassadors,
or of private individuals, never constitute an inter-
national delinquency. And, further, all acts committed
by heads of States and members of Government outside
their official capacity, simply as individuals who act for
themselves and not for the State, are not international
delinquencies either.2 The States concerned must cer-
tainly bear a vicarious responsibility for all such acts,
1 See Hyde in " The Green Bag," in KG. XIV. (1907), pp. 636-685.
XIX. (1907), pp. 38-49 ; Root in A.J. 2 See below §§ 157-158.
I. (1907), pp. 273-286 ; Barthelemy
but for that very reason these acts do not comprise

international delinquencies.
NO inter- § 154. An act of a State injurious to another State
nation a .g neverfcne}ess not an international delinquency if corn-
without niitted neither wilfully and maliciously nor with culp-
Maiice
culpable
or ,abie .negligence.
,
Therefore, ir
an act of a State
.
committed
Negii- by right or prompted by self-preservation in necessary
self-defence does not contain an international delin-
quency, however injurious it may actually be to an-
other State. And the same is valid in regard to acts of
officials or other individuals committed by command or
with the authorisation of a Government.
objects of § 155. International delinquencies may be corn-
national mitted against so many different objects that it is im-
possible to enumerate them. It suffices to give some
striking examples. Thus a State may be injured — in
regard to its independence through an unjustified inter-
vention in
; regard to its territorial supremacy through
a violation of its frontier ; in regard to its dignity
through disrespectful treatment of its head or its diplo-
matic envoys ; in regard to its personal supremacy
through forcible naturalisation of its citizens abroad ;
in regard to its treaty rights through an act violating a
treaty ; in regard to its right of protection over citizens
abroad through any act that violates the body, the
honour, or the property l of one of its citizens abroad.
A State may also suffer various injuries in time of war
by illegitimate acts of warfare, or by a violation of
neutrality on the part of a neutral State in favour of
the other belligerent. And a neutral may in time of
war be injured in various ways through a belligerent
violating neutrality by acts of warfare within the
1 That a State which does not pay is no donbt. On the so-called Drago
its public debts due to foreigners and doctrine and the Hague Convention
refuses, on the demand of the home concerning the Employment of Force
State of the foreigners concerned, to for the Recovery of Contract Debts,
make international
mits satisfactory arrangements com-
delinquency there see'above, § 135, No. G.
neutral State's territory ; for instance, through a belli-

gerent man-of-war attacking an enemy vessel in a
neutral port or in neutral territorial waters, or through
a belligerent violating neutrality by acts of warfare
committed on the Open Sea against neutral vessels.
§ 156. The nature of the Law of Nations as a law Legal con-
between, not above, Sovereign States excludes the
possibility of punishing a State for an international
delinquency and of considering the latter in the light
of a crime. The only legal consequences of an inter-
national delinquency that are possible under existing
circumstances are such as create a reparation of the
moral and material wrong done. The merits and the
conditions of the special cases are, however, so different
that it is impossible for the Law of Nations to prescribe
once for all what legal consequences an international
delinquency should have. The only rule which is
unanimously recognised by theory and practice is that
out of an international delinquency arises a right for
the wronged State to request from the delinquent State
the performance of such expiatory acts as are necessary
for a reparation of the wrong done. What kind of acts
these are depends upon the special case and the dis-
cretion ofthe wronged State. It is obvious that there
must be a pecuniary reparation for a material damage.
Thus, according to article 3 of the Hague Convention
of 1907, concerning the Laws and Customs of War on
Land, a belligerent party which violates these laws shall,
if the case demands, be liable to make compensation.
But at least a formal apology on the part of the delin-
quent will in every case be necessary. This apology may
have to take the form of some ceremonial act, such as
a salute to the flag or to the coat of arms of the wronged
State, the mission of a special embassy bearing apolo-
gies, and the like. A great difference would naturally
be made between acts of reparation for international
delinquencies deliberately and maliciously committed,

on the one hand, and, on the other, for such as arise
merely from culpable negligence.
When the delinquent State refuses reparation of the
wrong done, the wronged State can exercise such means
as are necessary to enforce an adequate reparation.
In case of international delinquencies committed in
time of peace, such means are reprisals l (including
embargo and pacific blockade) and war as the case may
require. On the other hand, in case of international
delinquencies committed in time of war through ille-
gitimate acts of warfare on the part of a belligerent,
such means are reprisals and the taking of hostages.2
Ill
STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS
See the literature quoted above at the commencement of § 148, and especially
Moore, VI. §§ 998-1018.
Responsi- § 157. States must bear vicarious responsibility for

varies a^ internationally injurious acts of their organs. As,
with however, these organs are of different kinds and of
different position, the actual responsibility of a State
for acts of its organs varies with the agents concerned.
It is therefore necessary to distinguish between inter-
nationally injurious acts of heads of States, members
of Government, diplomatic envoys, parliaments, judi-
cial functionaries, administrative officials, and military
and naval forces.
inter- § 158. Such international injurious acts as are com-
nationaiiy
injurious
mitted
p .
byJ heads of States in the exercise of their official
Acts of functions are not our concern here, because they con-
stitute international delinquencies which have been
discussed above (§§ 151-156). But a monarch can, just
1 See below, vol. II. § 34. 2 See below, vol. II. §§ 248 and 269.
ACTS OF STATE ORGANS 215
as any other individual, in his private life commit many

internationally injurious acts, and the question is,
whether and in what degree a State must bear respon-
sibility for such acts of its head. The position of a
head of a State, who is within and without his State
neither under the jurisdiction of a Court of Justice nor
under any kind of disciplinary control, makes it a neces-
sity for the Law of Nations to claim a certain vicarious
responsibility from States for internationally injurious
acts committed by their heads in private life. Thus,
for instance, when a monarch during his stay abroad
commits an act injurious to the property of a foreign
subject and refuses adequate reparation, his State may
be requested to pay damages on his behalf.
§ 159. As regards internationally injurious acts of inter-
members of a Government, a distinction must be made
between such acts as are committed by the offenders in
their official capacity, and other acts. Acts of the first of Govern-
kind constitute international delinquencies, as stated
above (§ 153). But members of a Government can in
their private life perform as many internationally in-
jurious acts as private individuals, and we must ascer-
tain therefore what kind of responsibility their State
must bear for such acts. Now, as members of a Govern-
ment have not the exceptional position of heads of
States, and are, therefore, under the jurisdiction of the
ordinary Courts of Justice, there is no reason why their
State should bear for internationally injurious acts
committed by them in their private life a vicarious
responsibility different from that which it has to bear
for acts of private persons.
§ 160. The position of diplomatic envoys who, as inter-
representatives of their home State, enjoy the privi-
leges of exterritoriality, gives, on the one hand, a very
great importance to internationally injurious acts com-
mitted by them on the territory of the receiving State,
and, on the other hand, excludes the jurisdiction of

the receiving State over such acts. The Law of Nations
therefore makes the home State in a sense responsible
for all acts of an envoy injurious to the State or its
subjects in whose territory he resides. But it depends
upon the merits of the special case what measures
beyond simple recall must be taken to satisfy the
wronged State. Thus, for instance, a crime committed
by the envoy on the territory of the receiving State
must be punished by his home State, and according to
special circumstances and conditions the home State
may be obliged to disown an act of its envoy, to apolo-
gise or express its regret for his behaviour, or to pay
damages. It must, however, be remembered that such
injurious acts as an envoy performs at the command
or with the authorisation of the home State, constitute
international delinquencies for which the home State
bears original responsibility and for which the envoy
cannot personally be blamed.
inter- § 161- As regards internationally injurious attitudes
injurious7 °^ Parliaments, it must be kept in mind that, most
Attitudes important as may be the part parliaments play in the
ments.1 political life of a nation, they do not belong to the
agents which represent the States in their international
. relations with other States. Therefore, however in-
jurious to a foreign State an attitude of a parliament
may be, it can never constitute an international delin-
quency. That, on the other hand, all States must bear
vicarious responsibility for such attitudes of their par-
liaments, there can be no doubt. But, although the
position of a Government is difficult in such cases,
especially in States that have a representative Govern-
ment, this does not concern the wronged State, which
has a right to demand satisfaction and reparation for
the wrong done.
nationally §162. Internationally injurious acts committed by
judicial functionaries in their private life are in no way injurious

different from such acts committed by other individuals.
But these functionaries may in their official capacity
commit such acts, and the question is how far a State's
vicarious responsibility for acts of its judicial function-
aries can reasonably be extended in face of the fact that
in modern civilised States these functionaries are to a
great extent independent of their Government.1 Un-
doubtedly, incase o£ such denial or undue delay of
justice by the Courts as is internationally injurious, a
State must find means to exercise compulsion against
such Courts. And the same is valid with regard to an
obvious and malicious act of misapplication of the law
by the Courts which is injurious to another State. But
if a Court observes its own proper forms of justice and
nevertheless makes a materially unjust order or pro-
nounces a materially unjust judgment, matters become
so complicated that there is hardly a peaceable way in
which the injured State can successfully obtain repara-
tion for the wrong done, unless the other party consents
to bring the case before a Court of Arbitration.
An illustrative case is that of the Costa Eica Packet?
which happened in 1891. Carpenter, the master of
this Australian whaling-ship, was, by order of a Court
of Justice, arrested on November 2, 1891, in the port
of Ternate, in the Dutch East Indies, for having com-
mitted three years previously a theft on the sea within
Dutch territorial waters. He was, however, released
on November 28, because the Court found that the
alleged crime was not committed within Dutch terri-
torial waters, but on the High Seas. Great Britain
demanded damages for the arrest of the master of
the Costa Rica Packet, but Holland maintained that,
1 Wharton, II. § 230, comprises (1897), pp. 735-745 ; Valery in E.G.
abundant and instructive material on V. (1898), pp. 57-66 ; Moore, I. § 148.
this question. See also Ullmann, " De la responsa-
2 See Bles in R.I. XXVIII. (1896), bilite de 1'e'tat en matiere judiciaire "
pp. 452-468 ; Regelsperger in R.Gr. IV. (1911).
since the judicial authorities concerned had ordered

the arrest of Carpenter in strict conformity with
the Dutch laws, the British claim was unjustified.
After some correspondence, extending over several
years, Great Britain and Holland agreed, in 1895, upon
having the conflict settled by arbitration and upon
appointing the late Professor de Martens of St. Peters-
burg as arbitrator. The award, given in 1899, was in
favour of Great Britain, and Holland was condemned to
pay damages to the master, the proprietors, and the
crew of the Costa Rica Packet.1
inter- § 163. Internationally injurious acts committed in
nationally , .
injurious the exercise ot. their
. . „ \ , f"
official .
functions , , ...... .
by administrative
officials and military and naval forces of a State with-
officlais ou^ ât State's command or authorisation, are not
and Miii- international delinquencies because they are not State
Navatn acts. But a State bears a wide, unlimited, and unre-
36St stricted vicarious responsibility for such acts because
its administrative officials and military and naval forces
are under its disciplinary control, and because all acts
of such officials and forces in the exercise of their official
functions are prima facie acts of the respective State.2
Therefore, a State has, first of all, to disown and dis-
approve of such acts by expressing its regret or even
apologising to the Government of the injured State ;
secondly, damages must be paid where required ; and,
lastly, the offenders must be punished according to the
merits of the special case.
As regards the question what kind of acts of ad-
ministrative officials and military and naval forces are
of an internationally injurious character, the rule may
safely be laid down that such acts of these subjects are
1 The whole correspondence on the tion of 1907, concerning the Laws
subject and the award are printed in and Customs of War on Land, which
Martens, N.R.G. 2nd Ser. XXIII. stipulates that a State is responsible
(1898), pp. 48, 715, and 808. for all acts committed by its armed
2 It is of importance to quote again forces.
here art. 3 of the Hague Conven-
internationally injurious as would constitute inter-

national delinquencies when committed by the State
itself or with its authorisation. Three very instructive
cases may be quoted as illustrative examples :
(1) On September 26, 1887, a German soldier on
sentry duty at the frontier near Vexaincourt shot from
the German side and killed an individual who was on
French territory. As this act of the sentry violated
French territorial supremacy, Germany disowned and
apologised for it and paid a sum of 50,000 francs to
the widow of the deceased as damages. The sentry,
however, escaped punishment because he proved that
he had acted in obedience to orders which he had mis-
understood.
(2) On November 26, 1906, Hasmann, a member
of the crew of the German gunboat Panther,1 at
that time in the port of Itajahi in Brazil, failed to
return on board his ship. The commander of the
Panther sent a searching party, comprising three
officers in plain clothes and a dozen non-commissioned
officers and soldiers in uniform, on shore for the purpose
of finding the whereabouts of Hasmann. This party,
during the following night, penetrated into several
houses, and compelled some of the residents to assist
them in their search for the missing Hasmann, who.
however, could not be found. He voluntarily returned
on board the following morning. As this act violated
Brazilian territorial supremacy, Brazil lodged a com-
plaint with Germany, which, after an inquiry, disowned
the act of the commander of the Panther, formally
apologised for it, and punished the commander of the
Panther by relieving him of his command.2
(3) On July 15, 1911, while the Spanish were in occu-
1 See E.G. XIII. (1906), pp. 200- on its way to the Far East during the
206. Russo-Japanese war, fired upon the
2 Another example occurred in Hull Fishing Fleet off the Dogger
1904, when the Eussian ^Baltic Fleet, Bank ; see below, vol. II. § 5.
pation of Alcazar in Morocco, M. Boisset, the French

Consular Agent, who was riding back to Alcazar from
Suk el Arba with his native servants, was stopped at
the gate of the town by a Spanish sentinel. The sen-
tinel refused to allow him to enter unless he and his
servants first delivered up their arms. As M. Boisset
refused, the sentinel barred the way with his fixed
bayonet and called out the guard. M. Boisset's horse
reared, and the sentinel thereupon covered him with
his rifle. After parleying to no purpose with the guard,
to whom he explained who he was, the French Consular
Agent was conducted by an armed escort of Spanish
soldiers to the Spanish barracks. A native rabble fol-
lowed upon the heels of the procession and cried out :
!( The French Consular Agent is being arrested by the
Spaniards." Upon arriving at the barracks M. Boisset
had an interview with a Spanish officer, who, without
in any way expressing regret, merely observed that
there had been a misunderstanding (equivocacione), and
allowed the French Consular Agent to go his way. It
is obvious that, as Consuls in Eastern non-Christian
countries, Japan now excepted, are exterritorial and
inviolable, the arrest of M. Boisset was a great injury
to France, which lodged a complaint with Spain. As
promptly as July 19 the Spanish Government tendered
a formal apology to France, and instructed the Spanish
Commander at Alcazar to tender a formal apology to
M. Boisset.
But it must be specially emphasised that a State
never bears any responsibility for losses sustained by
foreign subjects through legitimate acts of adminis-
trative officials and military and naval forces. Indi-
viduals who enter foreign territory submit themselves
to the law of the land, and their home State has no
right to request that they should be otherwise treated
than as the law of the land authorises a State to treat
ACTS OF PEIVATE PERSONS 221
its own subjects.1 Therefore, since the Law of Nations

does not prevent a State from expelling aliens, the
home State of an expelled alien cannot request the
expelling State to pay damages for the losses sustained
by the expelled through his having to leave the country.
Therefore, further, a State need not make any repara-
tion for losses sustained by an alien through legiti-
mate measures taken by administrative officials and
military forces in time of war, insurrection,2 riot, or
public calamity, such as a fire, an epidemic outbreak of
dangerous disease, and the like.
IV
STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS
See the literature quoted above at the commencement of § 148, and

especially Moore, VI. §§ 1019-1031.
§ 164. As regards State responsibility for acts of vicarious

private persons, it is first of all necessary not to con-
found the original with the vicarious responsibility of
States for internationally • injurious acts of private
T i • * i T • .1 ^ i
persons. International Law imposes the duty upon bility
Acts offor
every State to prevent as far as possible its own subjects,
and such foreign subjects as live within its territory,
from committing injurious acts against other States.
A State which either intentionally and maliciously or
through culpable negligence does not comply with this
duty commits an international delinquency for which
it has to bear original responsibility. But it is prac-
tically impossible for a State to prevent all injurious acts
which a private person might commit against a foreign
State. It is for that reason that a State must, accord-
ing to International Law, bear vicarious responsibility
1 Provided, however, such law does justice. See below, § 320.
not violate essential principles of 2 See below, § 167.
for such injurious acts of private individuals as are

incapable of prevention.
vicarious § 165. Now, whereas the vicarious responsibility of
bii£ynfor States for official acts of administrative officials and
Private military and naval forces is unlimited and unrestricted,
Persons their vicarious responsibility for acts of private persons
only.1™ is only relative. For their sole duty is to procure satis-
faction and reparation for the wronged State as far as
possible by punishing the offenders and compelling
them to pay damages where required. Beyond this
limit a State is not responsible for acts of private per-
sons ; there is in especial no duty of a State itself to
pay damages for such acts if the offenders are not able
to do it.
Municipal § 166. It is a consequence of the vicarious responsi-
offlncTs ^Hity of States for acts of private persons that by the
against Criminal Law of every civilised State punishment is
state?* severe for certain offences of private persons against
foreign States, such as violation of ambassadors' privi-
leges, libel on heads of foreign States and on foreign
envoys, and other injurious acts.1 In every case that
arises the offender must be prosecuted and the law
enforced by the Courts of Justice. And it is further a
consequence of the vicarious responsibility of States
for acts of private persons that criminal offences of
private persons against foreign subjects — such offences
are indirectly offences against the respective foreign
States because the latter exercise protection over their
subjects abroad — must be punished according to the
ordinary law of the land, and that the Civil Courts of
Justice of the land must be accessible for claims of
foreign subjects against individuals living under the
territorial supremacy of such land.
Responsi- § 167. The vicarious responsibility of States for acts
biiity for Q£ insurgents and rioters is the same as for acts of other
1 As regards the Criminal Law of England concerning such acts, see
Stephen's Digest, articles 96-103.
ACTS OF PRIVATE PERSONS 223
private individuals. As soon as peace and order are Acts of

re-established, such insurgents and rioters as have com- andUrgen
mitted criminal injuries against foreign States must be Rloters-
punished according to the law of the land. The point
need not be mentioned at all were it not for the fact
that, in several cases of insurrection and riots, claims
have been made by foreign States against the local State
for damages for losses sustained by their subjects through
acts of the insurgents, or rioters respectively, and that
some writers l assert that such claims are justified by
the Law of Nations. The majority of writers main-
tain, correctly, I think, that the responsibility of States
does not involve the duty to repair the losses which
foreign subjects have sustained through acts of insur-
gents and rioters. Individuals who enter foreign terri-
tory must take the risk of an outbreak of insurrections
or riots just as the risk of the outbreak of other cala-
mities. When they sustain a loss from acts of insur-
gents or rioters, they may, if they can, trace their losses
to the acts of certain individuals, and claim damages
from the latter before the Courts of Justice. The re-
sponsibility oaf State for acts of private persons injurious
to foreign subjects reaches only so far that its Courts
must be accessible to the latter for the purpose of claim-
ing damages from the offenders, and must punish such
of those acts as are criminal. And in States which, as
France for instance, have such Municipal Laws as make
the town or the county where an insurrection or riot has
taken place responsible for the pecuniary loss sustained
by individuals during those events, foreign subjects must
be allowed to claim damages from the local authorities
for losses of such kind. But the State itself never has
by International Law a duty to pay such damages.
The practice of the States agrees with this rule laid
down by the majority of writers. Although in some
1 See, for instance, Rivier, II. p. -137 ; Bar in R.I. 2nd Ser. I. (1899)
43 ; Brusa in Annuaire XVII. pp. 96 pp. 464-481.
cases several States have paid damages for losses of

such kind, they have done it, not through compulsion
of law, but for political reasons. In most cases in which
the damages have been claimed for such losses, the
respective States have refused to comply with the
request.1 As such claims have during the second half
of the nineteenth century frequently been tendered
against American States which have repeatedly been
the scene of insurrections, several of these States have
in commercial and similar treaties which they concluded
with other States expressly stipulated2 that they are
not responsible for losses sustained by foreign subjects
on their territory through acts of insurgents and rioters.
The Institute of International Law has studied the
matter and has proposed 3 the following Reglement con-
cerning it:—
(1) Independently of the case in which indemnities are due
to foreigners by virtue of the general laws of the country, for-
eigners have a right to compensation when they are injured as
to their person or as to their property in the course of a riot, of
an insurrection, or of a civil war :
(a) When the act from which they have suffered is directed
against foreigners as such in general, or against them as under
the jurisdiction of a certain State, or
(b) When the act from which they have suffered consists
in closing a port without due and proper previous notification,
or in retaining foreign ships in a port, or
(c) When the injury is the result of an act contrary to the
laws committed by a government official, or
(d) When the obligation to compensate is established by
virtue of the general principles of the law of war.
(2) The obligation is equally well established when the injury
has been committed (No. 1, a and d) on the territory of an in-
surrectionary government, whether by this government itself,
or by one of its functionaries.
On the other hand, certain demands for indemnity may be
1 See the cases in Calvo, III. §§ (Germany and Colombia) ; XXII. p.
1283-1290. 308 (Italy and Colombia) ; and p. 507
2 See Martens, N.R.G. IX. p. 474 (Italy and Paraguay).
(Germany and Mexico) ; XV. p. 840 8 At its meeting at Neuch.ltel in
(France and Mexico) ; XIX. p. 831 1900 ; see Annuaire, XVIII. p. 254.
ACTS OF PRIVATE PERSONS 225
set aside when they concern facts which occur after the govern-
ment of the State to which the injured person belongs has recog-
nised the insurrectionary government as a belligerent Power,
and when the injured person has continued to keep his domicile
or his habitation on the territory of the insurrectionary govern-
ment.
As long as the latter is considered by the government of the
person alleged to be injured as a belligerent Power, the demand
may only be addressed, in the case of paragraph 1 of article 2,
to the insurrectionary government and not to the legitimate
government.
(3) The obligation to compensate disappears when the injured
persons are themselves a cause of the event which has brought
the injury.1 Notably no obligation exists to indemnify those
who have returned to the country or who wish to give themselves
up to commerce or industry there, when they know, or ought
to know, that troubles have broken out, nor to indemnify those
who establish themselves or sojourn in a country which offers
no security on account of the presence of savage tribes, unless
the government of the country has given express assurance to
immigrants.
(4) The government of a Federal State composed of a certain
number of smaller States, which it represents from an inter-
national point of view, may not plead, in order to avoid the
responsibility which falls upon it, the fact that the constitution
of the Federal State does not give it .the right to control the
member-States, nor the right to exact from them the discharge
of their obligations.
(5) The stipulations mutually exempting States from the
duty of giving their diplomatic protection ought not to comprise
the cases of refusal of justice, or of evident violation of justice or
of International Law.2
1 For example, in the case of the States which, on account of
conduct which is particularly pro- extraordinary circumstances, do not,
vocative to a crowd. feel themselves at all in a position/
2 The Institute of International to assure protection in a sufficiently
Law has likewise — see Annuaire, efficacious manner to foreigners on
XVIII. pp. 253 and 256 — expressed their territory, can only avoid the
the two following vceux :— consequences of this condition of
(a) The Institute of International things by temporarily prohibiting
Law expresses the wish that the foreigners to enter their territory.
States should avoid inserting in (b) Recourse to international corn-
treaties clauses of reciprocal irre- missions of inquiry and to inter-
sponsibility. It considers that these national tribunals is in general
clauses are wrong in exempting States recommended for all differences
from the fulfilment of their duty of which may arise on account of injury
protecting their nationals abroad and to foreigners in the course of a riot,
of their duty of protecting foreigners an insurrection, or of civil war.
on their territory. It considers that
VOL. I. P
PART II
THE OBJECTS OF THE LAW OF
NATIONS
CHAPTER I
STATE TERRITORY
I
ON STATE TERRITORY IN GENERAL
Vattel, II. §§ 79-83— Hall, § 30— Westlake, I. pp. 84-88— Lawrence, §§ 71-72
— Phillimore, I. §§ 150-154— Twiss, I. §§ 140-144— Halleck, I. pp. 150-
156— Taylor, § 217— Wheaton, §§ 161-163— Moore, I. § 125— Bluntschli,
§ 277— Hartmann, § 58— Holtzendorff in Holtzendorff, II. pp. 225-232—
Gareis, § 18— Liszt, § 9— Ullmann, § 86— Heffter, §§ 65-68— Bonfils, No.
483— Despagnet, Nos. 374-377— Pradier-Fodere", II. No. 612— Merignhac,
II. pp. 356-366— Nys, I. pp. 402-412— Rivier, I. pp. 135-142— Calvo, I.
§§ 260-262— Fiore, I. Nos. 522-530— Martens, I. § 88— Del • Bon,
" Proprieta territoriale degli Stati " (1867)— Fricker, "Vom Staats-
gebiet" (1867).
§ 168. State territory is that definite portion of the concep-

surface of the globe which is subjected to the sove- st°ate°f
reignty of the State. A State without a territory is Territory,
not possible, although the necessary territory may be
very small, as in the case of the Free Town of Ham-
burg, the Principality of Monaco, the Republic of San
Marino, or the Principality of Lichtenstein. A wan-
dering tribe, although it has a Government and is other-
wise organised, is not a State before it has settled down
on a territory of its own.
State territory is also named territorial property of
a State. Yet it must be borne in mind that territorial
property is a term of Public Law and must not be con-
founded with private property. The territory of a
State is not the property of the monarch, or of the
Government, or even of the people of a State ; it is
the country which is subjected to the territorial supre-
macy or the imperium of a State. This distinction has,
230 STATE TERRITORY
however, in former centuries not been sharply drawn.1

In spite of the dictum of Seneca, " Omnia rex imperio
possidet, singuli dominio," the imperium of the mon-
arch and the State over the State territory has very
often been identified with private property of the
monarch or the State. But with the disappearance of
absolutism this identification has likewise disappeared.
It is for this reason that nowadays, according to the
Constitutional Law of most countries, neither the mon-
arch nor the Government is able to dispose of parts of
the State territory at will and without the consent of
Parliament.2
It must, further, be emphasised that the territory
of a State is totally independent of the racial character
of the inhabitants of the State. The territory is the
public property of the State, and not of a nation in the
sense of a race. The State community may consist of
different nations, as, for instance, the British or the Swiss
or the Austrians.
Different § 169. The territory of a State may consist of one
Territory, piece of the surface of the globe only, such as that of
Switzerland. Such kind of territory is named " inte-
grate territory " (territorium clausum). But the terri-
tory of a State may also be dismembered and consist
of several pieces, such as that of Great Britain. All
States with colonies have a " dismembered territory."
If a territory or a piece of it is absolutely surrounded
by the territory of another State, it is named an " en-
closure." Thus the Republic of San Marino is an
enclosure of Italy, and Birkenfeld, a piece of the terri-
tory of the Grand Duchy of Oldenburg situated on the
river Rhine, is an enclosure of Prussia.
Another distinction is that between motherland and
1 And some writers refuse to draw sion of the Island of Heligoland to
it even nowadays, as, for instance, Germany in 1890 was, however, made
Lawrence, § 71. conditional on the approval of Par-
2 In English Constitutional Law liaraent.
this point is not settled. The ces-
ON STATE TERRITORY IN GENERAL 231
colonies. Colonies rank as territory of the motherland,

although they may enjoy complete self-government and
therefore be called Colonial States. Thus, if viewed
from the standpoint of the Law of Nations, the Do-
minion of Canada, the Commonwealth of Australia,
New Zealand, and the Union of South Africa are British
territory.
As regards the relation between the Suzerain and
the Vassal State, it is certain that the vassal is not, in
the strict sense of the term, a part of the territory of
the suzerain. Crete and Egypt are not Turkish terri-
tory, although under Turkish suzerainty. But no
general rule can be laid down, as everything depends on
the merits of the special case, and as the vassal, even if
it has some footing of its own within the Family of
Nations, is internationally for the most part considered
a mere portion of the Suzerain State.1
§ 170. The importance of State territory lies in the import-
fact that it is the space within which the State exer- state°
cises its supreme authority. State territory is an object Territory-
of the Law of Nations because the latter recognises the
supreme authority of every State within its territory.
Whatever person or thing is on or enters into that terri-
tory, is ipso facto subjected to the supreme authority
of the respective State according to the old rules, Quid-
quid est in territorio, est etiam de territorio and Qui in
territorio meo est, etiam meus subditus est. No foreign
authority has any power within the boundaries of the
home territory, although foreign Sovereigns and diplo-
matic envoys enjoy the so-called privilege of exterri-
toriality, and although the Law of Nations does, and
international treaties may, restrict 2 the home authority
in many points in the exercise of its sovereignty.
§ 171. The supreme authority which a State exer- oneTem
cises over its territory makes it apparent that on one state.0"
1 See above, § 91. 2 See above, §§ 126-128.
232 STATE TERRITORY
and the same territory can exist one full-Sovereign

State only. Two or more full-Sovereign States on one
and the same territory are an impossibility. The fol-
lowing five cases, of which the Law of Nations is
cognisant, are apparent, but not real, exceptions to
this rule.
(1) There is, first, the case of the so-called con-
dominium. Ithappens sometimes that a piece of terri-
tory consisting of land or water is under the joint
tenancy of two or more States, these several States
exercising sovereignty conjointly over such piece and
the individuals living thereon. Thus Schleswig-Hol-
stein and Lauenburg from 1864 till 1866 were under the
condominium of Austria and Prussia. Thus, further,
Moresnet (Kelmis), on the frontier of Belgium and
Prussia, is under the condominium of these two States *
because they have not yet come to an agreement regard-
ing the interpretation of a boundary treaty of 1815
between the Netherlands and Prussia. And since 1898
the Soudan is under the condominium of Great Britain
and Egypt. It is easy to show that in such cases2
there are not two States on one and the same territory,
but pieces of territory, the destiny of which is not
decided, and which are kept separate from the terri-
tories of the interested States 3 under a separate ad-
ministration. Until a final settlement the interested
States do not exercise each an individual sovereignty
over these pieces, but they agree upon a joint admin-
istration under their conjoint sovereignty.
(2) The second case is that of the administration of
1 See Schroder, " Das grenz- of joint influence " with regard to
streitige Gebiet von Moresnet " the New Hebrides. See Brunet, " Le
(1902). Regime International des Nouvelles-
2 The New Hebrides are materi- Hebrides" (1908), and Politis in R.G.
ally likewise under a condominium, XIV. (1907), pp. 089-759.
namely, that of Great Britain and 3 As regards the proposed con-
France, although article 1 of the Con- dominiwn over Spitzbergen, see
vention of October 20, 1906— see Waultrin in R.G. XV. (1908), pp.
Martens, N.R.G. 3rd Ser. I. (1909), 80-105, and Piccioni in R.G. XVI.
p. 523— speaks only of "a region (1909), pp. 117-134.
ON STATE TERRITORY IN GENERAL 233
a piece of territory by a foreign Power, with the consent

of the owner-State. Thus, since 1878 the Turkish
island of Cyprus has been under British administration,
and the then Turkish provinces of Bosnia and Herze-
govina were from 1878 to 1908 under the administra-
tion of Austria-Hungary. In these cases a cession of
pieces of territory has for all practical purposes taken
place, although in law the respective pieces still belong
to the former owner-State. Anyhow, it is certain that
only one sovereignty is exercised over these pieces —
namely, the sovereignty of the State which exercises
administration. On the other hand, however, the fact
that in these cases pieces of territory have for all prac-
tical purposes been ceded to another State does not
empower the latter arbitrarily to annex the territory
without the consent of the State owning it in law.
Austria-Hungary had therefore no right to annex, in
1908, without the previous consent of Turkey, the
provinces of Bosnia and Herzegovina.1
(3) The third case is that of a piece of territory
leased or pledged by the owner-State to a foreign Power.
Thus, China in 1898 leased2 the district of Kiauchau
to Germany, Wei-Hai-Wei and the land opposite the
island of Hong-Kong to Great Britain, and Port Arthur
to Eussia.3 Thus, further, in 1803 Sweden pledged the
town of Wismar 4 to the Grand Duchy of Mecklenburg-
Schwerin, and the Republic of Genoa in 1768 pledged
the island of Corsica to France. All such cases com-
prise, for all practical purposes, cessions of pieces of
territory, but in strict law they remain the property
of the leasing State. And such property is not a mere
1 See above, § 50. of 100 years, should be entitled to
2 See below, § 216. take back the town of Wismar on
3 Russia in 1905, by the Peace repayment of the money, with 3 per
Treaty of Portsmouth, transferred cent, interest per annum. Sweden
her lease to Japan. in 1903— see Martens, N.R.G-. 2nd
4 This transaction took place for Ser. XXXI. (1905), pp. 572 and 574—
the sum of 1,258,000 thaler, on con- formally waived her right to retake
dition that Sweden, after the lapse the town.
Z64: STATE TERRITORY
fiction, as some writers l maintain, for it is possible that

the lease comes to an end by expiration of time or by
rescission. Thus the lease, granted in 1894 by Great
Britain to the former Congo Free State, of the so-called
Lado Enclave, was rescinded 2 in 1906. However this
may be, as long as the lease has not expired it is the
lease-holder who exercises sovereignty over the territory
concerned.
(4) The fourth case is that of a piece of territory of
which the use, occupation, and control is in perpetuity
granted by the owner-State to another State with the
exclusion of the exercise of any sovereign rights over
the territory concerned on the part of the grantor. In
this way 3 the Republic of Panama transferred, in 1903,
to the United States of America a ten-mile wide strip
of territory for the purpose of constructing, adminis-
trating, and defending the so-called Panama Canal. In
this case the grantor retains only in name the property
of the territory, the transfer of the land concerned is
really cession all but in name, and it is certain that
only the grantee exercises sovereignty there.
(5) The fifth case is that of the territory of a Federal
State. As a Federal State is considered 4 a State of
its own side by side with its single member-States, the
fact is apparent that the different territories of the
single member-States are at the same time collectively
the territory of the Federal State. But this fact is
only the consequence of the other illogical fact that
sovereignty is divided between a Federal State and its
member-States. Two different sovereignties are here
by no means exercised over one and the same territory,
for so far as the Federal State possesses sovereignty
the member-States do not, and vice versa.
1 See, for instance, Perrinjaquet N.R.G. 2ndSer.XXXV. (1908), p. I." I.
in E.G. XVI. (1909), pp. 349-367. 3 See below, § 184, and Boyd in
2 By article 1 of the Treaty of E.G. XVII. (1910), pp. 014-624.
London of May 9, 1906 ; see Martens, 4 See above, § 89.
THE DIFFERENT PARTS OF STATE TERRITORY 235
II
THE DIFFERENT PARTS OF STATE TERRITORY
§ 172. To the territory of a State belong not only Real and

the land within the State boundaries, but also the so- parts™?1
called territorial waters. They consist of the rivers, Territory.
canals, and lakes which water the land, and, in the case
of a State with a seacoast, of the maritime belt and
certain gulfs, bays, and straits of the sea. These dif-
ferent kinds of territorial waters will be separately dis-
cussed below in §§ 176-197. In contradistinction to
these real parts of State territory there are some things
that are either in every point or for some part treated
as though they were territorial parts of a State. They
are fictional and in a sense only parts of the territory.
Thus men-of-war and other public vessels on the high
seas as well as in foreign territorial waters are essen-
tially inevery point treated as though they were floating
parts of their home State.1 And the houses in which
foreign diplomatic envoys have their official residence
are in many points treated as though they were parts
of the home States of the respective envoys.2 Again,
merchantmen on the high seas are for some points
treated as though they were floating parts of the terri-
tory of the State under whose flag they legitimately
sail.3
§ 173. The subsoil beneath the territorial land and Territorial
water 4 is of importance on account of telegraph and Subsoil-
telephone wires and the like, and further on account of
the working of mines and of the building of tunnels.
A special part of territory the territorial subsoil is not,
although this is frequently asserted. But it is a uni-
versally recognised rule of the Law of Nations that the
1 See below, § 450. * As regards the subsoil of the
2 See below, § 390. Open Sea, see below, §§ 287c and
3 See below, § 264. 2S7d.
236 STATE TERRITORY
subsoil to an unbounded depth belongs to the State

which owns the territory on the surface.
Territorial § 174. The space of the territorial atmosphere is no
sphere. niore a special part of territory than the territorial sub-
soil, but it is of the greatest importance on account of
wires for telegraphs, telephones, electric traction, and
the like ; further on account of wireless telegraphy and
of aviation.
(1) Nothing need be said concerning wires for tele-
graphs and the like, except that obviously the territorial
State can prevent neighbouring States from making use
of its territorial atmosphere for such wires.
(2) As regards wireless telegraphy,1 the " Inter-
national Eadiographic Convention," signed at Berlin
on November 3, 1906, represents an agreement2 of
the signatory Powers concerning the exchange of radio-
telegrams on the part of coast stations and ship stations,
but it contains no stipulation respecting the question in
general whether the territorial State is compelled to
allow the passage over its territory of waves emanating
from a foreign wireless telegraphy station. There ought
to be no doubt that no such compulsion exists according
to customary International Law, and that therefore the
territorial State can prevent the passage of such waves 3
over its territory.
(3) The space of the territorial atmosphere is of
particular importance with regard to aviation, but no
customary or conventional rules of International Law
1 See Meili, " Die drahtlose Tele- 2 See below, §§ 287a, 2876, and 582,
graphic, &c." (1908); Schneeli, No. 4.
" Drahtlose Telegraphic und Volker- 3 The Institute of International
recht" (1908); Landsberg, "Die draht- Law— see Annuaire, XXL (1906), p.
lose Telegraphic" (1909); Kausen, 328 — proposes by art. 3 of its
"Die drahtlose Telegraph iei in Volker- •' Rdgime de la Telegraphic sans fil "
recht " (1910) ; Holland in B.G. XIII. to restrict the power of the territorial
(1906), pp. 58-92 ; Fauchille in State to exclude such waves from
Annuaire, XXI. (1906), pp. 76-87 ; passing over its territory to the case
Bonfils, Nos. 53110 and 53111 ; in which the exclusion is necessary
Despagnet, No. 433 qnatcr ; Meurer in the interest of its security,
and Boidin in R.G. XVI. (1909), pp.
76 and 261.
THE DIFFERENT PAETS OF STATE TERRITORY 237
are as yet in existence which settle the very much

controverted l matter. An international conference for
the purpose of agreeing upon an international conven-
tion concerning aviation met in 1910 at Paris, but did
not produce any result. The fact is that, since aviation
is still in its infancy, practical experience is lacking
concerning many questions which can only be settled
when aviation has been more developed. It is tempt-
ing to apply the rules concerning the maritime belt and
the Open Sea analogously to the space of the atmo-
sphere, and, therefore, to distinguish between a zone
of a certain height, in which the territorial State can
exercise sovereignty, and, on the other hand, the atmo-
sphere beyond that height, which is to be considered
free like the Open Sea. This comparison between the
atmosphere and the sea is, however, faulty for two
reasons. Firstly, the Open Sea is an international high-
way that connects distant lands between which, except
by sea, no communication would be possible, whereas
the atmosphere is not such an indispensable highway.
Secondly, navigation on the Open Sea comprises no
danger whatever to the security of the different States
and the lives and property of their inhabitants, whereas
aviation threatens such danger to a great extent. The
chief question at issue is, therefore, whether the terri-
torial State should or should not be considered to
1 The literature on aviation is aNijeholt, "Air Sovereignty" (1910) ;
abundant, see Holtzendorff, II. p. Hazeltine, "The Law of the Air"
230 ; Lawrence, § 73 ; Bonfils, Nos. (1911) ; Bielenberg, " Die Freiheit des
SSl^-SSl9; Despagnet, Nos. 433 bis Luftraums" (1911); Catellani, "II
and 433 ter ; Merignhac, II. pp. 398- diritto aereo " (1911) ; Sperl, "Die
410 ; Nys, I. pp. 523-532 ; Griinwald, Luf tschiffahrt, &c." (1911); Loubeyre,
" Das Luftschiff, &c." (1908) ; Meili, "Lesprincipesdudroitaerien"(1911);
" Das Luftschiff, &c." (1908); Meurer, Fauchillein Annuaire,XIX. (1902) pp.
"Luftschiffahrtsrecht" (1909); Meyer, 19-114, XXIV. (1911), and in E.G.
"Die Erschliessung des Luftraums VIII. (1901), pp. 414-485, XVII.
undihre rechtlichen Folgen" (1909) ; (1910), pp. 55-62 ; Zitelmann in the
Magnani," II diritto sullo spazio aereo Zeitschrift fur Internationales Privat-
e 1'aeronautica " (1909) ; Leech, "The und 0/cntliches Recht, XIX. (1909),
Jurisprudence of the Air" (1910), a pp. 458-496; Baldwin and Kuhm in
reprint from the Journal of the Royal A. J. IV. (1910), pp. 95-108, 109-132 ;
Artillery, vol. XXXVII.; Lycklama Baldwin inZ.V.V. (1911), pp. 394-399.
238 STATE TERRITORY
exercise sovereignty over the space of the atmosphere

to an unbounded height, and to have the power to
prevent the passage of foreign aviators altogether, or to
enact stringent rules with which they have to comply.
It would probably be best for the States in conference
to adopt such rules concerning the whole space of the
atmosphere as are similar to those valid by customary
International Law for the maritime belt, that is :— to
recognise, on the one hand, sovereignty of the territorial
State over the space of its atmosphere, but, on the other
hand, to give a right to foreign States to demand from
the territorial State that foreign private — but not
public !— air-vessels may pass through its atmosphere,
provided they comply with the rules enacted by the
territorial State for the aerial traffic.1
Aviation through the atmosphere above the Open
Sea will require special regulation on account of the
dangers to the vessels of all nations traversing the
sea, as will also aviation in general in time of war.
inaiiena- § 175. It should be mentioned that not every part
Parts of of territory is alienable by the owner-State. For it is
Territory. evident that the territorial waters are as much in-
separable appurtenances of the land as are the terri-
torial subsoil and atmosphere. Only pieces of land
together with the appurtenant territorial waters are
alienable parts of territory.2 There is, however, one
exception to this, since boundary waters 3 may wholly
belong to one of the riparian States, and may therefore
be transferred through cession from one to the other
riparian State without the bank itself. But it is obvious
that this is only an apparent, not a real, exception to
the rule that territorial waters are inseparable appur-
1 The Institute of International Aeronefs " ; see Annuaire, XXIV.
Law is studying the question of (1911).
aviation, and passed, in 1911, at its 2 See below, § 186.
meeting in Madrid, some rules con- 3 See below, § 199.
cerning the " Regime juridiques des
RIVERS 239
tenances of the land. For boundary waters that are

ceded to the other riparian State remain an appurte-
nance of land, although they are now an appurtenance
of the one bank only.
Ill
RIVERS
Grotius, II. c. 2, §§ 11-15— Pufendorf, III. c. 3, §8— Vattel, II. §§ 117, 128,
129, 134— Hall, § 39— Westlake, I. pp. 142-159— Lawrence, § 92—
Phillimore, I. §§ 125-151— Twiss, I. § 145— Halleck, I. pp. 171-177—
Taylor, §§ 233-241— Walker, § 16— Wharton, I. § 30— Moore, I. §§ 128-
132— Wheaton, §§ 192-205— Bluntschli, §§ 314, 315— Hartmann, § 58—
Heffter, § 77— Caratheodory in Holtzendorff, II. pp. 279-406— Gareis, § 20
—Liszt, §§ 9 and 27— Ullmann, §§ 87 and 105— Bonfils, Nos. 520-531—
Despagnet, Nos. 419-421— Me"rignhac, II. pp. 605-632— Pradier-Fodere,
II. Nos. 688-755— Nys, I. pp. 438-441, and II. pp. 109-131— Bivier, I.
p. 142 and § 14— Calvo, I. §§ 302-340— Fiore, II. Nos. 755-776, and
Code, §§ 283-285 and 976-982— Martens, I. § 102, II. § 57— Delavaud,
"Navigation . . . sur les fleuves internationaux " (1885) — Engehardt,
"Du regime conventionnel des fleuves internationaux" (1879), and
" Histoire du droit fluvial conventionnel " (1889) — Vernesco, " Des fleuves
en droit international" (1888) — Orban, "Etude sur le droit fluvial
international " (1896) — Berges, " Du regime de navigation des fleures
internationaux " (1902) — Lopez, "Regimen internacional de los rios
navigables" (1905)— Huber in Z.V. I. (1906), pp. 29 and 159— Hyde in
A.J. IV. (1910), pp. 145-155.
§ 176. Theory and practice agree upon the rule that Rivers
rivers are part of the territory of the riparian State. perty of °
Consequently, if a river lies wholly, that is, from its
source to its mouth, within the boundaries of one and
the same State, such State owns it exclusively. As
such rivers are under the sway of one State only and
exclusively, they are named " national rivers." Thus,
all English, Scotch, and Irish rivers are national, and
so are, to give some Continental examples, the Seine,
Loire, and Garonne, which are French ; the Tiber,
which is Italian ; the Volga, which is Russian. But
many rivers do not run through the land of one and
the same State only, whether they are so-called " boun-
dary rivers," that is, rivers which separate two different
240 STATE TERRITORY
States from each other, or whether they run through

several States and are therefore named " not-national
rivers/' Such rivers are not owned by one State alone.
Boundary rivers belong to the territory of the States
they separate, the boundary line l running either
through the middle of the river or through the middle
of the so-called mid-channel of the river. And rivers
which run through several States belong to the terri-
tories of the States concerned ; each State owns that
part of the river which runs through its territory.
There is, however, another group of rivers to be
mentioned, which comprises all such rivers as are navi-
gable from the Open Sea and at the same time either
separate or pass through several States between their
sources and their mouths. Such rivers, too, belong to
the territory of the different States concerned, but they
are nevertheless named " international rivers," because
freedom of navigation in time of peace on all of those
rivers in Europe and on many of them outside Europe
for merchantmen of all nations is recognised by Inter-
national Law.
§ 177. There is no rule of the Law of Nations in
National, existence which grants foreign States the right of ad-
Boundary mittance of their public or private vessels to navigation
National on national rivers. In the absence of commercial or
Rivers. o^ner treaties granting such a right, every State can
exclude foreign vessels from its national rivers or admit
them under certain conditions only, such as the pay-
ment of a due and the like. The teaching of Grotius
(II. c. 2, § 12) that innocent passage through rivers
must be granted has not been recognised by the prac-
tice of the States, and Bluntschli's assertion (§ 314)
that such rivers as are navigable from the Open Sea
must in time of peace be open to vessels of all nations,
is at best an anticipation of a future rule of International
Law, it does not as yet exist.
1 See below, § 199, and Huber in Z.V. I. (1906), pp. 29 and 159.
RIVERS 241
As regards boundary rivers and rivers running

through several States, the riparian States l can regu-
late navigation on such parts of these rivers as they
own, and they can certainly exclude vessels of non-
riparian States altogether unless prevented therefrom
by virtue of special treaties.
§ 178. Whereas there is certainly no recognised
principle of free navigation on national, boundary, and
not-national ... rivers, a movement
.for the recognition
r of Rivers.
national
tree navigation on international rivers set in at the
beginning of the nineteenth century. Until the French
Kevolution towards the end of the eighteenth century,
the riparian States of such rivers as are now called
international rivers could, in the absence of special
treaties, exclude foreign vessels altogether from those
parts of the rivers which run through their territory,
or admit them under discretionary conditions. Thus,
the river Scheldt was wholly shut up in favour of the
Netherlands according to article 14 of the Peace Treaty
of Munster of 1648 between the Netherlands and Spain.
The development of things in the contrary direction
begins with a Decree of the French Convention, dated
November 16, 1792, which opens the rivers Scheldt and
Meuse to the vessels of all riparian States. But it was
not until the Vienna Congress2 in 1815 that the prin-
ciple of free navigation on the international rivers of
Europe by merchantmen of not only the riparian but
of all States was proclaimed. The Congress itself realised
theoretically that principle in making arrangements3
for free navigation on the rivers Scheldt, Meuse, Rhine,
and on the navigable tributaries of the latter — namely,
the rivers Neckar, Maine, and Moselle — although more
than fifty years elapsed before the principle became
realised in practice.
1 See below, § 178a. 3 " R^glements pour la libre navi-
2 Articles 108-117 of the Final Act gation des rivieres " ; see Martens,
of the Vienna Congress ; see Martens, N.R. II. p. 434.
N.R. II. p. 427.
VOL. I. Q
242 STATE TERRITORY
The next step was taken by the Peace Treaty of

Paris of 1856, which by its article 15 l stipulated free
navigation on the Danube and expressly declared the
principle of the Vienna Congress regarding free navi-
gation on international rivers for merchantmen of all
nations as a part of ''' European Public Law." A
special international organ for the regulation of navi-
gation on the Danube was created, the so-called Euro-
pean Danube Commission.
A further development took place at the Congo
Conference at Berlin in 1884-85, since the General Act 2
of this Conference stipulated free navigation on the
rivers Congo and Niger and their tributaries, and
created the so-called " International Congo Commis-
sion "as a special international organ for the regulation
of the navigation of the said rivers.
Side by side with these general treaties, which re-
cognise free navigation on international rivers, stand
treaties3 of several South American States with other
States concerning free navigation for merchantmen of
all nations on a number of South American rivers. And
the Arbitration Court in the case of the boundary
dispute between Great Britain and Venezuela decided
in 1903 in favour of free navigation for merchantmen
of all nations on the rivers Amakourou and Barima.
Thus the principle of free navigation, which is a
settled fact as regards all European and some African
international rivers, becomes more and more extended
over all other international rivers of the world. But
when several writers maintain that free navigation on
all international rivers of the world is already a recog-
nised rule of the Law of Nations, they are decidedly
1 See Martens, N.R.G. XV. p. 776. 2 See Martens, N.R.G. 2nd Ser.
The documents concerning naviga- X. p. 417.
tion on the Danube are collected by 3 See Taylor, § 238, and Moore, I.
Sturdza, " Recueil de documents § 131, pp. G39-651.
relatifs h, la libert^ de navigation du
Danube " (Berlin, 1904).
RIVEKS 243
wrong, although such a universal rule will certainly be

proclaimed in the future. There can be no doubt that
as regards the South American rivers the principle is
recognised by treaties between a small number of Powers
only. And there are "examples which show that the
principle is not yet universally recognised. Thus by
article 4 of the Treaty of Washington of 1854 between
Great Britain and the United States the former grants
to vessels of the latter free navigation on the river St.
Lawrence as a revocable privilege, and article 26 of the
Treaty of Washington of 1871 stipulates for vessels of
the United States, but not for vessels of other nations,
free navigation " for ever " on the same river.1
However this may be, the principle of free naviga-
tion embodies the rule that vessels of all nations must
be admitted without payment of any dues whatever.
Yet this principle does not exclude the levy of dues
from all navigating vessels for expenses incurred by
the riparian States for such improvements of the navi-
gability ofrivers as embankments, breakwaters, and the
"
I should mention that the Institute of International
like.2
Law, at its meeting at Heidelberg in 1888, adopted a
Projet de Reglement international de navigation fluviale*
which comprises forty articles.
§ 178a. Apart from navigation on rivers, the ques- utilisa-
tion of the utilisation of the flow of rivers is of impor- flow of
tance. With regard to national rivers, the question can nvers>
not indeed be raised, since the local State is absolutely
unhindered in the utilisation of the flow. But the flow
of not-national, boundary, and international rivers is
not within the arbitrary power of one of the riparian
States, for it is a rule of International Law4 that no
1 See Wharton, pp. 81-83 ; Moore, Rhine and Elbe, see Arndt in Z.V.
I. § 131, p. G31, and Hall, § 39. IV. (1910), pp. 208-229.
2 As regards the question of levy- 3 See Annuaire, IX. p. 182.
iug dues for navigation of the rivers * See above, § 127.
244 STATE TERRITORY
State is allowed to alter the natural conditions of its

own territory to the disadvantage of the natural con-
ditions of the territory of a neighbouring State. For
this reason a State is not only forbidden to stop or to
divert the flow of a river which runs from its own to a
neighbouring State, but likewise to make such use of
the water of the river as either causes danger to the
neighbouring State or prevents it from making proper
use * of the flow of the river on its part. Since, apart
from special treaties between neighbouring countries
concerning special cases, neither customary nor con-
ventional detailed rules of International Law concerning
this subject are in existence, the Institute of Inter-
national Law, at its meeting at Madrid 2 in 1911, adopted
the following " Reglementation Internationale des cours
d'eau internationaux au point de vue de leur force motrice
et de leur utilisation industrielle ou agricole " :—
I. When a stream of water forms the frontier of two States,
neither State may, without the consent of the other, and in the
absence of a special and valid legal title, make any changes
prejudicial to the bank of the other State, nor allow such changes
to be made by individuals, societies, &c. Moreover, neither
State may on its own territory utilise the water, or allow it to
be utilised, in such a manner as to cause great damage to its
utilisation by the other State or by the individuals, societies, &c.,
of the other.
The foregoing conditions are also applicable when a lake is
situated between territories of more than two States.
II. When a stream of water traverses successively the terri-
tories of two or of several States :—
(1) The point at which this stream of water traverses the
frontiers of the two States, whether natural or from time im-
memorial, may not be changed by the establishments of one of
the States without the assent of the other.
(2) It is forbidden to make any alteration injurious to the
1 See, for instance, the treaty of tion of the boundary waters between
Washington of January 11, 1909 — the United States and Canada.
Martens, N.R.G. 3rd Ser. (1911), p. 208 2 See Annuaire, XXIV. (1911).
—between Great Britain and the See also Bar in R.G. XVII. (1910),
United States concerning the utilisa- pp. 281-288.
LAKES AND LAND-LOCKED SEAS 245
water, or to throw in injurious matter (coming from factories,

&c.).
(3) Water may not be withdrawn by the establishments (espe-
cially factories for the working of hydraulic pressure) in such a
quantity as to modify greatly the constitution, or, in other words,
the utilisable character or the essential character, of the stream
of water on its arrival at the territory nearer the mouth of the
river.
The right of navigation by virtue of a title recognised by
International Law cannot be restricted by any usage whatever.
(4) A State farther down the river may not make, or allow
to be made, in its territory any constructions or establishments
which might cause danger of flooding a State farther up the
river.
(5) The foregoing rules are applicable in the same way to
the case in which streams of water flow from a lake, which is
situated in one territory, into the territory of another State or
the territories of other States.
(6) It is recommended that the States concerned appoint
common permanent Commissions which may give decisions, or
at least may give their advice, when such new establishments
are built, or when such modifications are made in the existing
establishments, as may influence the flow of the stream of water
situated on the territory of another State.
IV
LAKES AND LAND-LOCKED SEAS

Vattel, I. § 294— Hall, § 38— Phillimore, I. §§ 205-205A— Twiss, I. § 181—
Halleck, I. p. 170— Moore, I. §§ 135-143— Bluntschli, § 316— Hartmann,
§ 58— Heffter, § 77— Caratheodory in Holtzendorff, II. pp. 378-385—
Gareis, §§ 20-21— Liszt, § 9— Ullmann, §§ 88 and 106— Bonfils, Nos. 495-
505— Despagnet, No. 407— Merignhac, II. 587-596— Pradier-Fodere, II.
Nos. 640-649— Nys, I. pp. 447-450— Calvo, I. §§ 301, 373, 383— Fiore, II.
Nos. 811-813, and Code, Nos. 279 and 1000— Martens, I. § 100— Rivier, I.
pp. 143-145, 230 — Mischeff, " La Mer Noire et les detroits de Con-
stantinople" (1901)— Hunt in A.J. IV. (1910), pp. 285-313.
§ 179. Theory and practice agree upon the rule that Lakes and
such lakes and land-locked seas as are entirely enclosed locked
by the land of one and the same State are part of the
territory of this State. Thus the Dead Sea in Palestine of
is Turkish, the Sea of Aral is Russian, the Lake of Como states.
246 STATE TERRITORY
is Italian territory. As regards, however, such lakes

and land-locked seas as are surrounded by the territories
of several States, no unanimity exists. The majority
of writers consider these lakes and land-locked seas
parts of the surrounding territories, but several1 dis-
sent, asserting that these lakes and seas do not belong
to the riparian States, but are free like the Open Sea.
The practice of the States seems to favour the opinion
of the majority of writers, for special treaties frequently
arrange what portions of such lakes and seas belong to
the riparian States.2 Examples are :— The Lake of
Constance,3 which is surrounded by the territories of
Germany (Baden, Wiirtemberg, 'Bavaria), Austria, and
Switzerland (Thurgau and St. Gall) ; the Lake of
Geneva, which belongs to Switzerland and France ; the
Lakes of Huron, Erie, and Ontario, which belong to
British Canada and the United States ; the Caspian Sea,
which belongs to Persia and Russia.4
So-caiied § 180. In analogy with so-called international rivers,
national sucn laês an(^ land-locked seas as are surrounded by
Lakes and the territories of several States and are at the same
locked time navigable from the Open Sea, are called " inter-
national lakes and land-locked seas." However, al-
though some writers 5 dissent, it must be emphasised
that hitherto the Law of Nations has not recognised
the principle of free navigation on such lakes and seas.
The only case in which such free navigation is stipulated
is that of the lakes within the Congo district.6 But
1 See, for instance, Calvo, I. § 301 ; * But the Caspian Sea is almost
Caratheodory in Holtzendorff, II. entirely under Russian control
p. 378. through the two treaties of Gulistan
2 As regards the utilisation of the (1813) and Tourkmantschai (1828).
flow of such lakes and seas, the same See Bivier, I. p. 144, and Phillimore,
is valid as that concerning the utilisa- I. § 205.
tion of the flow of rivers ; see above, 5 See, for instance, Rivier, I. p.
§ 178a. 230 ; Caratheodory in Holtzendorff,
3 See Stoffel, " Die Fischerei-Ver- II. p. 378 ; Calvo, I. § 301.
hiiltnisse des Bodensees unter beson- 6 Article 15 of the General Act of
derer Beriicksichtigung der an ihm the Congo Conference. (See Martens,
bestehenden Hoheitsrechte " (1906). N.R.G. 2nd Ser. X. p. 417.)
LAKES AND LAND-LOCKED SEAS 247
there is no doubt that in a near future this principle will

be recognised, and practically all so-called international
lakes and land-locked seas are actually open to mer-
chantmen ofall nations. Good examples of such inter-
national lakes and land-locked seas are the fore-named
lakes of Huron, Erie, and Ontario.
§ 181. It is of interest to give some details regarding The Black
the Black Sea. This is a land-locked sea which was
undoubtedly wholly a part of Turkish territory as long
as the enclosing land was Turkish only, and as long as
the Bosphorus and the Dardanelles, the approach to the
Black Sea, which are exclusively part of Turkish terri-
tory, were not open for merchantmen of all nations.
But matters have changed through Russia, Roumania,
and Bulgaria having become littoral States. It would
be wrong to maintain that now the Black Sea belongs
to the territories of the four States, for the Bosphorus
and the Dardanelles, although belonging to Turkish
territory, are nevertheless parts of the Mediterranean
Sea, and are now open to merchantmen of all nations.
The Black Sea is consequently now part of the Open
Sea l and is not the property of any State. Article 11
of the Peace Treaty of Paris,2 1856. neutralised the
Black Sea, declared it open to merchantmen of all
nations, but interdicted it to men-of-war of the littoral
as well as of other States, admitting only a few Turkish
and Russian public vessels for the service of their coasts.
But although the neutralisation was stipulated " for-
mally and in perpetuity," it lasted only till 1870. In
that year, during the Franco-German War, Russia shook
off the restrictions of the Treaty of Paris, and the Powers
assembled at the Conference of London signed on
March 13, 1871, the Treaty of London,3 by which the
neutralisation of the Black Sea and the exclusion of
1 See below, § 252. 3 See Martens, N.K.G-. XVIII. p.

_ 2 See Martens, N.R.G. XV. p. 775. 303.
248 STATE TERRITORY
men-of-war therefrom were abolished. But the right of

the Porte to forbid foreign men-of-war passage through
the Dardanelles and the Bosphorus 1 was upheld by that
treaty, as was also free navigation for merchantmen of
all nations on the Black Sea.
CANALS
Westlake, I. pp. 320-331— Lawrence, § 90, and Essays, pp. 41-162— Phillimore,
I. §§ 399 and 207— Moore, III, §§ 336-371— Caratheodory in Holtzendorff,
II. pp. 386-405— Liszt, § 27— Ullmann, § 106— Bohfils, Nos. 511-515—
Despagnet, No. 418— Merignhac, II. pp. 597-604— Pradier-Fode're', II.
Nos. 658-G60— Nys, I. pp. 475-495— Rivier, I. § 16— Calvo, I. §§ 376-380—
Fiore, Code, Nos. 983-987— Martens, II. § 59— Sir Travers Twiss in B.I.
VII. (1875), p. 682, XIV. (1882), p. 572, XVII. (1885), p. 615— Holland,
Studies, pp. 270-298— Asser in B.I. XX. (1888), p. 529— Bustamante in
B.I. XXVII. (1895), p. 112— Rossignol, " Le Caual de Suez" (1898)—
Camand, "Etude sur le regime juridique du Canal de Suez" (1899) —
Charles-Roux, " L'Isthme et le canal de Suez" (1901)— Othalom, "Der
Suezkanal " (1905)— Muller-Heymer, " Der Panamakanal in der Politik
der Vereinigten Staaten " (1909)— Arias, "The Panama Canal" (1911)—
Hains, Davis, Knapp, Wambough, Olney, and Kennedy in A.J. III. (1909),
pp. 354 and 885, IV. (1910), p. 314, V. (1911), pp. 298, 615, 620.
Canals § 182. That canals are parts of the territories of the

perfyof° resPective territorial States is obvious from the fact
Riparian that they are artificially constructed waterways. And
there ought to be no doubt 2 that all the rules regarding
rivers must analogously be applied to canals. The
matter would need no special mention at all were it not
for the interoceanic canals which have been constructed
during the second half of the nineteenth century or are
contemplated in the future. And as regards two of
these, the Emperor William (Kiel or Baltic) Canal,
which connects the Baltic with the North Sea, and the
Corinth Canal, which connects the Gulf of Corinth with
the Gulf of Êgina, there is not much to be said. The
former is a canal made mainly for strategic purposes
1 See below, § 197. 2 See, however, Holland, Studies, p. 278.
CANALS 249
by the German Empire entirely through German terri-

tory. Although Germany keeps it open for navigation
to vessels of all other jiations, she exclusively controls
the navigation thereof, and can at any moment exclude
foreign vessels at discretion, or admit them upon any
conditions she likes, apart from special treaty arrange-
ments to the contrary. The Corinth Canal is entirely
within the territory of Greece, and although the canal
is kept open for navigation to vessels of all nations,
Greece exclusively controls the navigation thereof.
§ 183. The most important of the interoceanic canals The Suez
is that of Suez, which connects the Eed Sea with the
Mediterranean. Already in 1838 Prince Metternich
gave his opinion that such a canal, if ever made, ought
to become neutralised by an international treaty of the
Powers. When, in 1869, the Suez Canal was opened,
jurists and diplomatists at once discussed what means
could be found to secure free navigation upon it for
vessels of all kinds and all nations in time of peace as
well as of war. In 1875 Sir Travers Twiss l proposed
the neutralisation of the canal, and in 1879r the Institute
of International Law gave its vote 2 in favour of the
protection of free navigation on the canal by an inter-
national treaty. In 1883 Great Britain proposed an
international conference to the Powers for the purpose of
neutralising the canal, but it took several years before
an agreement was actualised. This was done by the
Convention of Constantinople 3 of October 29, 1888,
1 See R.I. VII. pp. 682-694. being in consequence of her occupa-
2 See Annuaire, III. and IV. vol. tion by British forces, and in so far
I. p. 349. as they might fetter the liberty of
3 See Martens, N.R.G. 2nd,Ser. action of the British Government
XV. p. 557. It must, however, be during the occupation of Egypt.
mentioned that Great Britain is a But article 6 of the Declaration
party to the Convention of Con- respecting Egypt and Morocco signed
stantinople under the reservation at London on April 8, 1904, by
that its terms shall not be brought Great Britain and France (see
into operation in so far as they Parliamentary Papers, France, No. 1
would not be compatible with the (1904), p. 9), has done away with
transitory and exceptional condition this reservation, since it stipulates
in which Egypt is put for the time the following : — " In order to ensure
250 STATE TERRITORY
between Great Britain, Austria-Hungary, France, Ger-

many, Holland, Italy, Spain, Russia, and Turkey. This
treaty comprises seventeen articles, whose more im-
portant stipulations are the following :—
(1) The canal is open in time of peace as well as of
war to merchantmen and men-of-war of all nations.
No attempt to restrict this free usage of the canal is
allowed in time either of peace or of war. The canal
can never be blockaded (article 1).
(2) In time of war, even if Turkey is a belligerent,
no act of hostility is allowed either inside the canal
itself or within three sea miles from its ports. Men-
of-war of the belligerents have to pass through the canal
without delay. They may not stay longer than twenty-
four hours, a case of absolute necessity excepted, within
the harbours of Port Said and Suez, and twenty-four
hours must intervene between the departure from those
harbours of a belligerent man-of-war and a vessel of
the enemy. Troops, munitions, and other war material
may neither be shipped nor unshipped within the canal
and its harbours. All rules regarding belligerents' men-
of-war are likewise valid for their prizes (articles 4, 5, 6).
(3) No men-of-war are allowed to be stationed inside
the canal, but each Power may station two men-of-war
in the harbours of Port Said and Suez. Belligerents,
however, are not allowed to station men-of-war in these
harbours (article 7). No permanent fortifications are
allowed in the canal (article 2).
(4) It is the task of Egypt to secure the carrying
out of the stipulated rules, but the consuls of the Powers
in Egypt are charged to watch the execution of these
rules (articles 8 and 9).
the free passage of the Suez Canal, guaranteed, the execution of the
his Britannic Majesty's Government last sentence of paragraph 1 as well
declare that they adhere to the as of paragraph 2 of article 8 of that
stipulations of the Treaty of October treaty will remain in abeyance."
29, 1888, and that they agree to (See Holland, Studies, p. 293, and
their being put in force. The free Westlake, I. p. 328.)
passage of the canal being thus
CANALS 251
(5) The signatory Powers are obliged to notify the

treaty to others and to invite them to accede thereto
(article 16).
§ 184. Already in 1850 Great Britain and the United The
States in the Clayton-Bulwer Treaty1 of Washington canaima
had stipulated the free navigation and neutralisation of
a canal between the Pacific and the Atlantic Ocean
proposed to be constructed by the way of the river St.
Juan de Nicaragua and either or both of the lakes of
Nicaragua and Managua. In 1881 the building of a
canal through the Isthmus of Panama was taken in
hand, but in 1888 the works were stopped in conse-
quence of the financial collapse of the Company under-
taking its construction. After this the United States
came back to the old project of a canal by the way of
the river St. Juan de Nicaragua. For the eventuality
of the completion of this canal, Great Britain and the
United States signed, on February 5, 1900, the Con-
vention ofWashington, which stipulated free navigation
on and neutralisation of the proposed canal in analogy
with the Convention of Constantinople, 1888, regarding
the Suez Canal, but ratification was refused by the
Senate of the United States. In the following year,
however, on November 18, 1901, another treaty was
signed and afterwards ratified. This so-called Hay-
Pauncefote Treaty 2 applies to a canal between the
Atlantic and Pacific Oceans by whatever route may
be considered expedient, and its five articles are the
following :—
Article 1
The High Contracting Parties agree that the present

Treaty shall supersede the aforementioned Convention of April
19, 1850.
1 See Martens, N.R.G. XV. p. 187, canal through the Isthmus of

and Moore, III. §§ 351-365. Accord- Panama.
ing to its article 8 this treaty was 2 See Moore, III. §§ 366-368.
also to be applied to a proposed
252 STATE TERRITORY
Article 2
It is agreed that the canal may be constructed under the
auspices of the Government of the United States, either directly
at its own cost, or by gift or loan of money to individuals or
corporations, or through subscription to or purchase of stock or
shares, and that, subject to the provisions of the present Treaty,
the said Government shall have and enjoy all the rights incident
to such construction, as well as the exclusive right of providing
for the regulation and management of the canal.
Article 3
The United States adopts, as the basis of the neutralisation
of such ship canal, the following Rules, substantially as em-
bodied in the Convention of Constantinople, signed October 29,
1888, for the free navigation of the Suez Canal, that is to say :—
1. The canal shall be free and open to the vessels of com-
merce and of war of all nations observing these Rules, on terms
of entire equality, so that there shall be no discrimination against
any such nation, or its citizens or subjects, in respect of the
conditions or charges of traffic, or otherwise. Such conditions
and charges of traffic shall be just and equitable.
2. The canal shall never be blockaded, nor shall any right
of war be exercised or any act of hostility be committed within
it. The United States, however, shall be at liberty to maintain
such military police along the canal as may be necessary to
protect l it against lawlessness and disorder.
3. Vessels of wrar of a belligerent shall not revictual nor take
any stores in the canal except so far as may be strictly neces-
1 This does not mean that the United to the United States all the rights,
States have a right permanently to power, and authority which the
fortify the canal. Such a right has United States would possess and
likewise been deduced from article exercise if she were the sovereign
23 of the Hay-Varilla Treaty of of the territory concerned, could be
November 18, 1903, which runs: — "If quoted as indirectly empowering the
it should become necessary at any United States to fortify the Panama
time to employ armed forces for the Canal permanently. But the ques-
safety or protection of the canal, or of tion is whether article 3 must not
the ships that make use of the same, be interpreted in connection with
or the railways and auxiliary works, article 23. The fact that article
the United States shall have the 23 stipulates expressly the power
right, at all times in its discretion, of the United States temporarily to
to use its police and its land and establish fortifications would seem
naval forces or to establish fortifica- to indicate that it was intended
tions for these purposes." However, to exclude permanent fortifications,
it would seem that by this article The question of the fortification of the
23 only temporary fortifications are Panama Canal is discussed by Mains
contemplated. On the other hand, (contra) and Davis (pro) in A.J. III.
if read by itself, article 3 of the (1909), pp. 354-394 and pp. 885-908,
Hay-Varilla Treaty, according to and by Olney, Wambough, and Ken-
which the Republic of Panama grants nedy in A.J.V.(1911),pp. 298,615, 620.
CANALS 253
sary ; and the transit of such vessels through the canal shall
be effected with the least possible delay in accordance with the
regulations in force, and with only such intermission as may
result from the necessities of the service.
Prizes shall be in all respects subject to the same rules as
vessels of war of belligerents.
4. No belligerent shall embark or disembark troops, muni-
tions of war, or warlike materials in the canal, except in case
of accidental hindrance of the transit, and in such case the
transit shall be resumed with all possible despatch.
5. The provisions of this article shall apply to waters ad-
jacent to the canal, within three marine miles of either end.
Vessels of war of a belligerent shall not remain in such waters
longer than twenty-four hours at any one time except in case
of distress, and in such case shall depart as soon as possible ;
but a vessel of war of one belligerent shall not depart within
twenty-four hours from the departure of a vessel of war of the
other belligerent.
6. The plant, establishments, buildings and all works neces-
sary to the construction, maintenance, and operation of the
canal shall be deemed to be part thereof, for the purposes of
this Treaty, and in time of war, as in time of peace, shall enjoy
complete immunity from attack or injury by belligerents, and
from acts calculated to impair their usefulness as part of the
canal.
Article 4
It is agreed that no change of territorial sovereignty or of
the international relations of the country or countries traversed
by the before-mentioned canal shall affect the general principle
of neutralisation or the obligation of the high contracting parties
under the present Treaty.
Article 5
The present Treaty shall be ratified by his Britannic Majesty
and by the President of the United States, by and with the
advice and consent of the Senate thereof ; and the ratifications
shall be exchanged at Washington or at London at the earliest
possible time within six months from the date hereof.
In faith whereof the respective Plenipotentiaries have signed
this Treaty and thereunto affixed their seals.
Done in duplicate at Washington, the 18th day of November,
in the year of Our Lord 1901.
(Seal) PAUNCEFOTE.
(Seal) JOHN HAY.
254 STATE TERRITORY
On November 18, 1903, the so-called Hay-Varilla

Treaty l was concluded between the United States and
the new Republic of Panama, according to which, on
the one hand, the United States guarantees and will
maintain the independence of the Republic of Panama,
and, on the other hand, the Republic of Panama grants 2
to the United States in perpetuity for the construction,
administration, and protection of a canal between Colon
and Panama the use, occupation, and control of a strip
of land required for the construction of the canal, and,
further, of land on both sides of the canal to the extent
of five miles on either side, with the exclusion, however,
of the cities of Panama and Colon and the harbours
adjacent to these cities. According to article 18 of this
treaty the canal and the entrance thereto shall be neu-
tral in perpetuity, and shall be open to vessels of all
nations as stipulated by article 3 of the Hay-Pauncefote
Treaty.
1 See Martens, N.R.G. 2nd Ser. all but in name, was pointed out
XXXI. p. 599. above, § 171 (4) ; see also below,
2 That this grant is really cession § 216.
MARITIME BELT 255
X VI
MARITIME BELT
Grotius, II. c. 3, § 13— Vattel, I. §§ 287-290— Hall, §§ 41-42— Westlake, I. pp.

183-192— Lawrence, § 187— Phillimore, . I. §§ 197-201— Twiss, I. §§ 144,
190-192— Halleck, I. pp. 157-167— Taylor, §§ 247-250— Walker, § 17—
Wharton, § 32— Moore, I. §§ 144^152— Wheaton, §§ 177-180— Bluntschli,
§§ 302, 309-310— Hartmann, § 58— Heffter, § 75— Stoerk in Holtzendorff,
II. pp. 409-449— Gareis, § 21— Liszt, § 9— Ullmann, § 87— Bonfils, Nos.
491-494— Despagnet, Nos. 403-414— Me'rignhac, II. pp. 370-392—
Pradier-Fode're, II. Nos. 617-639 — Nys, I. pp. 496-520— Rivier, I. pp.
145-153— Calvo, I. §§ 353-362— Fiore, II. Nos. 801-809, and Code, Nos.
271-273, 1025— Martens, I. § 99— Bynkershoek, " De dominio maris " and
" Quaestiones juris publici," I. c. 8 — Ortolan, " Diplomatic de la mer "
(1856), I. pp. 150-175— Heilborn, System, pp. 37-57— Imbart-Latour,
"La mer territoriale, &c." (1889)— Godey, "La mer cotiere" (1896) —
Schucking, " Das Kustenmeer im internationalen Recht" (1897) — Perels,
§ 5— Fulton, " The Sovereignty of the Seas " (1911), pp. 537-740— Barclay
in Annuaire, XII. (1892), pp. 104-136, and XIII. (1894), pp. 125-162—
Martens in R.G. I. (1894), pp. 32-43— Aubert, ibidem, pp. 429-441—
Engelhardt in R.I. XXVI. (1894), pp. 209-213— Godey in R.G. III. (1896),
pp. 224-237— Lapradelle in R.G. V. (1898), pp. 264-284, 309-347.
§ 185. Maritime belt is that part of the sea which, state Pr°-
in contradistinction to the Open Sea, is under the sway Maritime
of the littoral States. But no unanimity exists with
regard to the nature of the sway of the littoral States.
Many writers maintain that such sway is sovereignty,
that the maritime belt is a part of the territory of the
littoral State, and that the territorial supremacy of the
latter extends over its coast waters. Whereas it is
nowadays universally recognised that the Open Sea
cannot be State property, such part of the sea as makes
the coast waters would, according to the opinion of
these writers, actually be the State property of the
littoral States, although foreign States have a right of
innocent passage of their merchantmen through the
coast waters.
On the other hand, many writers of great authority
emphatically deny the territorial character of the mari-
time belt and concede to the littoral States, in the
interest of the safety of the coast, only certain powers of
256 STATE TERRITORY
control, jurisdiction, police, and the like, but not sove-

reignty.
This is surely erroneous, since the real facts of
international life would seem to agree with the first-
mentioned opinion only. Its supporters rightly main-
tainthat
l the universally recognised fact of the exclusive
right of the littoral State to appropriate the natural
products of the sea in the coast waters, especially the
use of the fishery therein, can coincide only with the
territorial character of the maritime belt. The argu-
ment of their opponents that, if the belt is to be con-
sidered a part of State territory, every littoral State
must have the right to cede and exchange its coast waters,
can properly be met by the statement that territorial
waters of all kinds are inalienable appurtenances 2 of
the littoral and riparian States.3
Breadth of § 186. Be that as it may, the question arises how
Beit!1" far into the sea those waters extend which are coast
waters and are therefore under the sway of the littoral
State. Here, too, no unanimity exists upon either the
starting line of the belt on the coast or the breadth
itself of the belt from such starting line.
(1) Whereas the starting line is sometimes drawn
along high-water mark, many writers draw it along
low- water mark. Others draw it along the depths
where the waters cease to be navigable ; others again
along those depths where coast batteries can still be
erected, and so on.4 But the number of those who
draw it along low-water mark is increasing. The
1 Hall, p. 158. The question is tion 13 (Neutral Rights and Duties
treated with great clearness by in Maritime War) of the second
Heilborn, " System," pp. 37-57, and Hague Peace Conference, 1907,
Schucking, pp. 14-20. speaks of sovereign rights ... in
2 See above, § 175. Bynkershoek's neutral waters would seem to indi-
("De Dominio Maris," c. 5) opinion cate that the States themselves
that a littoral State can alienate its consider their sway over the maritime
maritime belt without the coast belt to be of the nature of sove-
itself, is at the present day un- reignty.
tenable. * See Schucking, p. 13.
3 The fact that art. 1 of Conven-
MARITIME BELT 257
Institute of International Law1 has voted in favour

of this starting line, and many treaties stipulate the
same.
(2) With regard to the breadth of the maritime belt
various opinions have in former times been held, and
very exorbitant claims have been advanced by different
States. And although Bynkershoek's rule that terrae
potestas Jinitur ubi finitur armorum vis is now generally
recognised by theory and practice, and consequently a
belt of such breadth is considered under the sway of
the littoral State as is within effective range of the
shore batteries, there is still no unanimity on account
of the fact that such range is day by day increasing.
Since at the end of the eighteenth century the range of
artillery was about three miles, or one marine league,
that distance became generally 2 recognised as the
breadth of the maritime belt. But no sooner was a
common doctrine originated than the range of projec-
tiles increased with the manufacture of heavier guns.
And although Great Britain, France, Austria, the United
States of America, and other States, in Municipal Laws
and International Treaties still adhere to a breadth of
one marine league, the time will come when by a com-
mon agreement of the States such breadth will be very
much extended.3 As regards Great Britain, the Terri-
torial Waters Jurisdiction Act4 of 1878 (41 and 42
Viet. c. 73) specially recognises the extent of the
territorial maritime belt as three miles, or one marine
league, measured from the low-water mark of the
coast.
§ 187. Theory and practice agree upon the following Cabotage,
Fisheries,
1 See Annuaire, XIII. p. 329. Law has voted in favour of six miles,
2 But not universally. Thus or two marine leagues, as the breadth
Norway claims a breadth of four of the belt. See Annuaire, XIII.
miles and Spain even a breadth of p. 281.
six miles. As regards Norway, see 4 See above, § 25, and Maine,
Aubert in R.G. I. (1894), pp. 429-441. p. 39.
3 The Institute of International
VOL. I. R
258 STATE TERRITORY
Poiice,and principles with regard to fisheries, cabotage, police, and

maritime ceremonials within the maritime belt :—
(1) ê u'ttoral State can exclusively reserve the
Beit. fishery within the maritime belt l for its own subjects,
whether fish or pearls or amber or other products of
the sea are in consideration.
(2) The littoral State can, in the absence of special
treaties to the contrary, exclude foreign vessels from
navigation and trade along the coast, the so-called
cabotage,2 and reserve this cabotage exclusively for its
own vessels. Cabotage meant originally navigation and
trade along the same stretch of coast between the ports
thereof, such coast belonging to the territory of one and
the same State. However, the term cabotage or coast-
ing trade as used in commercial treaties comprises now 3
sea trade between any two ports of the same country,
whether on the same coasts or different coasts, pro-
vided always that the different coasts are all of them
the coasts of one and the same country as a political
and geographical unit in contradistinction to the coasts
of colonial dependencies of such country.
(3) The littoral State can exclusively exercise police
and control within its maritime belt in the interest of
its custom-house duties, the secrecy of its coast forti-
fications, and the like. Thus foreign vessels can be
ordered to take certain routes and to avoid others.
(4) The littoral State can make laws and regula-
tions regarding maritime ceremonials to be observed
by such foreign merchantmen as enter its territorial
maritime belt.4
tion
§ 188. Although the maritime belt is a portion of
1 All treaties stipulate for the 1882. (Martens, N.R.G. 2nd Set.
purpose of fishery a three miles wide IX. p. 556.)
territorial maritime belt. See, for a See Pradier-Foddrd, V. Nos.
instance, article 1 of the Hague 2441, 2442.
Convention concerning police and 3 See below, § 579, where the
fishery in the North Sea of May 6, matter is more amply treated.
4 See Twiss, I. § 194.
MARITIME BELT 259
the territory of the littoral State and therefore under within the
the absolute territorial supremacy of such State, the
belt is nevertheless, according to the practice of all the
States, open to merchantmen of all nations for inoffen-
sive navigation, cabotage excepted. And it is the
common conviction l that every State has by customary
International Law the right to demand that in time of
peace its merchantmen may inoffensively pass through
the territorial maritime belt of every other State. Such
right is correctly said to be a consequence of the freedom
of the Open Sea, for without this right navigation on
the Open Sea by vessels of all nations would in fact
be an impossibility. And it is a consequence of this
right that no State can levy tolls for the mere passage
of foreign vessels through its maritime belt. Although
the littoral State may spend a considerable amount of
money for the erection and maintenance of lighthouses
and other facilities for safe navigation within its mari-
time belt, it cannot make merely passing foreign vessels
pay for such outlays. It is only when foreign ships
cast anchor within the belt or enter a port that they
can be made to pay dues and tolls by the littoral State.
Some writers 2 maintain that all nations have the right
of inoffensive passage for their merchantmen by usage
only, and not by the customary Law of Nations, and
that, consequently, in strict law a littoral State can
prevent such passage. They are certainly mistaken.
An attempt on the part of a littoral State to prevent
free navigation through the maritime belt in time of
peace would meet with stern opposition on the part of
all other States.
But a right of foreign States for their men-of-war
to pass unhindered through the maritime belt is not
generally recognised. Although many writers assert
the existence of such a right, many others emphatically
1 See above, § 142. 2 Kltiber, § 76 ; Pradier-Foddre, II. No. 628.
260 STATE TERRITORY
deny it. As a rule, however, in practice no State

actually opposes in time of peace the passage of foreign
men-of-war and other public vessels through its mari-
time belt. And it may safely be stated, first, that a
usage has grown up by which such passage, if in every
way inoffensive and without danger, shall not be denied
in time of peace ; and, secondly, that it is now a cus-
tomary rule of International Law that the right of
passage through such parts of the maritime belt as
form part of the highways for international traffic
cannot be denied to foreign men-of-war.1
Juris- § 189. That the littoral State has exclusive juris-
withTiTthe diction within the belt as regards mere matters of police
elt* and control is universally recognised. Thus it can
exclude foreign pilots, can make custom-house arrange-
ments, sanitary regulations, laws concerning stranded
vessels and goods, and the like. It is further agreed
that foreign merchantmen casting anchor within the
belt or entering a port,2 fall at once and ipso facto under
the jurisdiction of the littoral State. But it is a moot
point whether such foreign vessels as do not stay but
merely pass through the belt are for the time being
under this jurisdiction. It is for this reason that the
British Territorial Waters Jurisdiction Act of 1878 (41
& 42 Viet. c. 73), which claims such jurisdiction, has
called forth protests from many writers.3 The contro-
versy itself can be decided only by the practice of
the States. The British Act quoted, the basis of
which is, in my opinion, sound and reasonable, is a
powerful factor in initiating such a practice ; but as
1 See below, § 449. . Institute of International Law,
8 The Institute of International which at its meeting at Paris in 1894
Law — see Annuaire, XVII. (1898), p. adopted a body of eleven rules
273 — adopted at its meeting at the regarding the maritime belt, gulfs,
Hague in 1898 a " Reglement sur le bays, and straits, voted against the
regime le"gal des navires et de leurs jurisdiction of a littoral State over
Equipages dans les ports Grangers " foreign vessels merely passing
comprising seven rules. through the belt. See Annuaire,
3 See Perels, pp. 69-77. The XIII. p. 328.
MARITIME BELT 261
yet no common pra&tice of the States can be said

to exist.
§ 190. Different from the territorial maritime belt zone for
is the zone of the Open Sea, over which a littoral State and
extends the operation of its revenue and sanitary laws. tairLaws-
The fact is that Great Britain and the United States,
as well as other States, possess revenue and sanitary
laws which impose certain duties not only on their own
but also on such foreign vessels bound to one of their
ports as are approaching, but not yet within, their
territorial maritime belt.1 Twiss and Phillimore agree
that in strict law these Municipal Laws have no basis,
since every State is by the Law of Nations prevented
from extending its jurisdiction over the Open Sea, and
that it is only the Comity of Nations which admits
tacitly the operation of such Municipal Laws as long as
foreign States do not object, and provided that no
measure is taken within the territorial maritime belt
of another nation. I doubt not that in time special
arrangements will be made as regards this point by
a universal international convention. But I believe
that, since Municipal Laws of the above kind have been
in existence for more than a hundred years and have
not been opposed by other States, a customary rule of
the Law of Nations may be said to exist which allows
littoral States in the interest of their revenue and sani-
tary laws to impose certain duties on such foreign
vessels bound to their ports as are approaching, al-
though not yet within, their territorial maritime belt.
1 See, for instance, the British 157 ; Stoerk in Holtzendorfi, II. pp.
so-called Hovering Acts, 9 Geo. II. c. 475-478 ; Perels, § 5, pp. 25-28.
35 and 24 Geo. III.' c. 47. The See also Hall, " Foreign Powers and
matter is treated by Moore, I. § 151 ; Jurisdiction," §§ 108 and 109, and
Taylor, § 248 ; Twiss, I. § 190 ; Annuaire, XIII. (1894), pp. 135 and
Phillimore, I. § 198 ; Halleck, I. p. 141.
262 STATE TERRITORY
VII
GULFS AND BAYS
Vattel, I. § 291— Hall, § 41— Westlake, I. pp. 183-192— Lawrence, § 72—

Phillimore, I. §§ 19G-206— Twiss, I. §§ 181-182— Halleck, I. pp. 165-170—
Taylor, §§ 229-231— Walker, § 18— Wharton, I. §§ 27-28— Moore, I. § 153—
Wheaton, §§ 181-190— Bluntschli, §§ 309-310— Hartmann, § 58— Hefiter,
§ 76— Stoerk in Holtzendorff, II. pp. 419-428— Gareis, § 21— Liszt, § 9—
Ullmann, § 88— Bonfils, No. 516— Despagnet, Nos. 405-406— Me"rignhac,
II. pp. 394-397— Pradier-Fode-re, II. Nos. 661-681— Nys, I. pp. 441-447—
Rivier, I. pp. 153-157— Calvo, I. §§ 366-367— Fiore, II. Nos. 808-815, and
Code, Nos. 278-279— Martens, I. § 100— Perels, § 5— Schiicking, "Das
Kiistenmeer im internationalen Recht " (1897), pp. 20-24— Barclay in
Annuaire, XII. pp. 127-129— Oppenheim in Z.V. I. (1907), pp. 579-587,
and V. (1911), pp. 74-95.
Territorial § 191. It is generally admitted that such gulfs and

Bays!ai [ bays as are enclosed by the land of one and the same
littoral State, and whose entrance from the sea is nar-
row enough to be commanded by coast batteries erected
on one or both sides of the entrance, belong to the
territory of the littoral State even if the entrance is
wider l than two marine leagues, or six miles.
Some writers maintain that gulfs and bays whose
entrance is wider than ten miles, or three and a third
marine leagues, cannot belong to the territory of the
littoral State, and the practice of some States accords
with this opinion. But the practice of other countries,
1 I have no reason to alter the not generally done by international
above statement, although Lord lawyers, and as is certainly not
Fitzinaurice declared in the House recognised by geography ; for the
of Lords on February 21, 1907, in very examples which he enumerates
the name of the British Government, as yulfs are all called bays, namely
that they considered such bays only those of Conception, of Cancale,
to be territorial as possessed an of Chesapeake, and of Delaware,
entrance not wider than six miles. In the North Atlantic Coast Fisheries
The future will have to show case, between the United States and
whether Great Britain and her self- Great Britain, which was decided by
governing colonies consider them- the Permanent Court of Arbitration
selves bound by this statement. No at the Hague in 1910, the United
writer of authority can be quoted in States — see the official publication of
favour of it, although Walker (§ 18) the case, p. 136 — also contended that
and Wilson and Tucker (5th ed., only such bays could be considered
1910, § 53) state it. Westlake (vol. territorial as possessed an entrance
I. p. 187) cannot be cited in favour not wider than six miles, but the
of it, since he distinguishes between Court refused to agree to this con-
bays and gulfs in such a way as is tention.
GULFS AND BAYS 263
approved by many .writers, goes beyond this limit.

Thus Great Britain holds the Bay of Conception in
Newfoundland to be territorial, although it goes forty
miles into the land and has an entrance more than
twenty miles wide. And the United States claim the
Chesapeake and Delaware Bays, as well as other inlets
of the same character, as territorial,1 although many
European writers oppose this claim. The Institute of
International Law has voted in favour of a twelve miles
wide entrance, but admits the territorial character of
such gulfs and bays with a wider entrance as have been
considered territorial for more than one hundred years.2
As the matter stands, it is doubtful as regards many
gulfs and bays whether they are territorial or not.
Examples of territorial bays in Europe are : The Zuider
Zee is Dutch ; the Frische HafF , the Kurische HafT, and
the Bay of Stettin, in the Baltic, are German, as is also
the Jade Bay in the North Sea. The whole matter
calls for an international congress to settle the question
once for all which gulfs and bays are to be considered
territorial. And it must be specially observed that it
is hardly possible that Great Britain would still, as she
formerly did for centuries, claim the territorial char-
acter of the so-called King's Chambers,3 which include
portions of the sea between lines drawn from headland
to headland.
§ 192. Gulfs and bays surrounded by the land of Non-tem-
one and the same littoral State whose entrance is so Gulfs and
wide that it cannot be commanded by coast batteries, Bays>
and, further, all gulfs and bays enclosed by the land of
more than one littoral State, however narrow their
1 See Taylor, § 229 ; Wharton, I. bers," Phillimore (I. § 200) still

§§ 27 and 28 ; Moore, I. § 153. keeps up this claim. The attitude of
2 See Annuaire, XIII. p. 329. the British Government in the Moray
3 Whereas Hall (§ 41, p. 162) says : Firth Case— see below, p. 264— would
" England would, no doubt, not seem to demonstrate that this claim
attempt any longer to assert a right is no longer upheld. See also Law-
of property over the King's Cham- rence, § 87, and Westlake, I. p. 188.
264 STATE TERRITORY
entrance may be, are non-territorial. They are parts

of the Open Sea, the marginal belt inside the gulfs and
bays excepted. They can never be appropriated, they
are in time of peace and war open to vessels of all
nations including men-of-war, and foreign fishing vessels
cannot, therefore, be compelled to comply with muni-
cipal regulations of the littoral State concerning the
mode of fishing.
An illustrative case is that of the fisheries in the
Moray Firth. By article 6 of the Herring1 Fishery
(Scotland) Act, 1889, beam and otter trawling is pro-
hibited within certain limits of the Scotch coast, and
the Moray Firth inside a line drawn from Duncansby
Head in Caithness to Eattray Point in Aberdeenshire
is included in the prohibited area. In 1905, Mortensen,
the captain of a Norwegian fishing vessel, but a Danish
subject, was prosecuted for an offence against the above-
mentioned article 6, convicted, and fined by the Sheriff
Court at Dornoch, although he contended that the
incriminating act was committed outside three miles
from the coast. He appealed to the High Court of
Justiciary, which,2 however, confirmed the verdict of
the Sheriff Court, correctly asserting that, whether or
not the Moray Firth could be considered as a British
territorial bay, the Court was bound by a British Act
of Parliament even if such Act violates a rule of Inter-
national Law. The British Government, while recog-
nising that the Scotch Courts were bound by the Act of
Parliament concerned, likewise recognised that, the
Moray Firth not being a British territorial bay, foreign
fishing vessels could not be compelled to comply with
an Act of Parliament regulating the mode of fishing in
the Moray Firth outside three miles from the coast,
and therefore remitted Mortensen's fine. To remedy the
conflict between article 6 of the above-mentioned Herring
1 52 and 53 Viet. c. 23. 2 Mortensen v. Peters, " The Scotch
Law Times Reports," vol. 14, p. 227.
STRAITS 265
Fishery (Scotland) Act, 1889, and the requirements of

International Law, Parliament passed the Trawling in
Prohibited Areas Prevention Act,1 1909, according to
which no prosecution can take place for the exercise
of prohibited fishing methods outside the three miles
from the coast, but the fish so caught may not be landed
or sold in the United Kingdom.2
§ 193. As regards navigation and fishery within
territorial gulfs and bays, the same rules of the Law of Fishery in
Nations are valid as in the case of navigation and fishery
within the territorial maritime belt. The right of fishery Bays-
may, therefore, exclusively be reserved for subjects of
the littoral State.3 And navigation, cabotage ex-
cepted, must be open to merchantmen of all nations,
but foreign men-of-war need not be admitted.
VIII
STRAITS
Vattel, I. § 292— Hall, § 41— Westlake, I. pp. 193-197— Lawrence, §§ 87-89—

Phillimore, I. §§ 180-196— Twiss, I. §§ 183,' 184, 189— Halleck, I. pp. 165-
170— Taylor, §§ 229-231— Walker, § 17— Wharton, §§ 27-29— Wheaton,
§§ 181-190— Moore, I. §§ 133-134— Bluntschli, § 303— Hartmann, § 65—
Heffter, § 76— Stoerk in Holtzendorff, II. pp. 419-428— Gareis, § 21 —
Liszt, §§ 9 and 26— Ullmann, § 88— Bonfils, Nos. 506-511— Despagnet,
Nos. 415-417— Pradier-Fode're, II. Nos. 650-656— Nys, I. pp. 451-474—
Rivier, I. pp. 157-159— Calvo, I. §§ 368-372— Fiore, II. Nos. 745-754, and
Code, Nos. 280-281— Martens, I. § 101— Holland, Studies, p. 277.
§ 194. All straits which are so narrow as to be under What

the command of coast batteries erected either on one
or both sides of the straits, are territorial. Therefore, torial
1 9 Edw. VII. c. 8. entrance from the sea not wider than
2 See Oppenheim inZ.V. V. (1911), ten miles, but reserves likewise a
pp. 74—95. maritime belt of three miles to be
3 The Hague Convention concern- measured from the line where the
ing police and fishery in the North entrance is ten miles wide. Practi-
Sea, concluded on May 6, 1882, cally the fishery is therefore reserved
between Great Britain, Belgium, for subjects of the littoral State
Denmark, France, Germany, and within bays with an entrance
Holland reserves by its article 2 thirteen miles wide. See Martens,
the fishery for subjects of the littoral N.R.G. 2nd Ser. IX. (1884), p. 556.
States of such bays as have an
266 STATE TERRITORY
straits of this kind which divide the land of one and the
same State belong to the territory of such State. Thus
the Solent, which divides the Isle of Wight from Eng-
land, isBritish, the Dardanelles and the Bosphorus are
Turkish, and both the Kara and the Yugor Straits,
which connect the Kara Sea with the Barents Sea, are
Russian. On the other hand, if such narrow strait
divides the land of two different States, it belongs to
the territory of both, the boundary line running, failing
a special treaty making another arrangement, through
the mid-channel.1 Thus the Lymoon Pass, the narrow
strait which separates the British island of Hong Kong
from the continent, was half British and half Chinese
as long as the land opposite Hong Kong was Chinese
territory.
It would seem that claims of States over wider
straits than those which can be commanded by guns
from coast batteries are no longer upheld. Thus Great
Britain used formerly to claim the Narrow Seas—
namely, the St. George's Channel, the Bristol Channel,
the Irish Sea, and the North Channel — as territorial ;
and Phillimore asserts that the exclusive right of Great
Britain over these Narrow Seas is uncontested. But
it must be emphasised that this right is contested, and
I believe that Great Britain would now no longer up-
hold her former claim,2 at least the Territorial Waters
Jurisdiction Act 1878 does not mention it.
Naviga- § 195. All rules of the Law of Nations concerning
Fishery navigation, fishery, and jurisdiction within the mari-
and juris- time belt apply likewise to navigation, fishery, and
diction in . . _. . r.r/. . _ . /*
straits. junsdiction within straits. Foreign merchantmen, there-
1 See below, § 199. the whole of the Bristol Channel
8 See Phillimore, I. § 189, and between Somerset and Glamorgan is
above, § 191 (King's Chambers). British territory ; possibly, however,
Concerning the Bristol Channel, the Court intended to refer only to
Hall (§ 41, p. 162, note 2) remarks : that portion of the Channel which
"It was apparently decided by the lies within Steepholm and Flatholm."
Queen's Bench in Reg. v. Cunning- See also Westlake, I. p. 188, note 3.
ham (Bell's " Crown Cases," 86) that
STRAITS 267
fore, cannot 1 be excluded ; foreign men-of-war must be

admitted to such straits as form part of the highways
for international traffic ; 2 the right of fishery may ex-
clusively be reserved for subjects of the littoral State ;
and the latter can exercise jurisdiction over all foreign
merchantmen passing through the straits. If the narrow
strait divides the land of two different States, juris-
diction and fishery are reserved for each littoral State
within the boundary line running through the mid-
channel or otherwise as by treaty arranged.
It must, however, be stated that foreign merchant-
men cannot be excluded from the passage through
territorial straits only when these connect two parts
of the Open Sea. In case a territorial strait belong-
ing to one and the same State connects a part of the
Open Sea with a territorial gulf or bay, or with a
territorial land-locked sea belonging to the same State —
as, for instance, the Strait of Kertch3 at present, and
formerly the Bosphorus and the Dardanelles 4 — foreign
vessels can be excluded therefrom.
§ 196. The rule that foreign merchantmen must be The
allowed inoffensive passage through territorial straits
without any dues and tolls whatever, had one excep- Dues-
tion until the year 1857. From time immemorial,
Denmark had not allowed foreign vessels the passage
through the two Belts and the Sound, a narrow strait
which divides Denmark from Sweden and connects the
Kattegat with the Baltic, without payment of a toll,
the so-called Sound Dues.5 Whereas in former cen-
1 The claim of Russia— see Waul- Chili and Argentina. See Abribat,
trin in E.G. XV. (1908), p. 410— to have " Le ddtroit de Magellan au point de
a right to exclude foreign merchant- vue international" (1902) ; Nys, I. pp.
men from the passage through the 470-474 ; and Moore, I. § 134.
Kara and the Yugor Straits, is there- 3 See below, § 252.
fore unfounded. As regards the Kara * See below, § 197.
Sea, see below, § 253, note 2. 5 See the details, which have
2 As, for instance, the Straits of historical interest only, in Twiss, I.
Magellan. These straits were neutra- § 188 ; Phillimore, I. § 189 ; Wharton,
lised in 1881— see below, § 568, and I. § 29 ; and Scherer, " Der Sundzoll"
vol. II. § 72— by a treaty between (1845).
268 STATE TERRITORY
turies these dues were not opposed, they were not con-
sidered any longer admissible as soon as the principle
of free navigation on the sea became generally recog-
nised, but Denmark nevertheless insisted upon the dues.
In 1857, however, an arrangement l was completed be-
tween the maritime Powers of Europe and Denmark by
which the Sound Dues were abolished against a heavy
indemnity paid by the signatory States to Denmark.
And in the same year the United States entered into
a convention'2 with Denmark for the free passage of
their vessels, and likewise paid an indemnity. With
these dues has disappeared the last witness of former
times when free navigation on the sea was not uni-
versally recognised.
The BOS- § 197. The Bosphorus and Dardanelles, the two
SdDar- Turkish territorial straits which connect the Black Sea
daneiies. with the Mediterranean, must be specially mentioned.3
So long as the Black Sea was entirely enclosed by
Turkish territory and was therefore a portion of this
territory, Turkey could exclude 4 foreign vessels from
the Bosphorus and the Dardanelles altogether, unless
prevented by special treaties. But when in the eight-
eenth century Eussia became a littoral State of the Black
Sea, and the latter, therefore, ceased to be entirely a
territorial sea, Turkey, by several treaties with foreign
Powers, conceded free navigation through the Bosphorus
and the Dardanelles to foreign merchantmen. But she
always upheld the rule that foreign men-of-war should
be excluded from these straits. And by article 1 of
the Convention of London of July 10, 1841, between
Turkey, Great Britain, Austria, France, Prussia, and
Russia, this rule was once for all accepted. Article 10
of the Peace Treaty of Paris of 1856 and the Conven-
1 The Treaty of Copenhagen of 3 See Holland, " The European
March 14, 1857. See Martens, Concert in the Eastern Question,"
N.R.G. XVI. 2nd part, p. 345. p. 225, and Perels, p. 29.
2 Convention of Washington of * See above, § 195.
April 11, 1857. See Martens, N.R.G.
XVII. 1st part, p. 210.
STRAITS 269
tion No. 1 annexed to this treaty, and, further, article 2

of the Treaty of London, 1871, again confirm the rule,
and all those Powers which were not parties to these
treaties submit nevertheless to it.1 According to the
Treaty of London of 1871, however, the Porte can open
the straits in time of peace to the men-of-war of friendly
and allied Powers for the purpose, if necessary, of
securing the execution of the stipulations of the Peace
Treaty of Paris of 1856.
On the whole, the rule has in practice always been
upheld by Turkey. Foreign light public vessels in the
service of foreign diplomatic envoys at Constantinople
can be admitted by the provisions of the Peace Treaty
of Paris of 1856. And on several occasions when Turkey
has admitted a foreign man-of-war carrying a foreign
monarch on a visit to Constantinople, there has been
no opposition by the Powers.2 But when, in 1902,
Turkey allowed four Russian torpedo destroyers to pass
through her straits on the condition that these vessels
should be disarmed and sail under the Russian com-
mercial flag, Great Britain protested and declared that
she reserved the right to demand similar privileges for
her men-of-war should occasion arise. As far as I
know, however, no other Power has joined Great Britain
in this protest. On the other hand, no protest was
raised when, in 1904, during the Russo-Japanese war,
two vessels belonging to the Russian volunteer fleet in
the Black Sea were allowed to pass through to the
Mediterranean, for nobody could presume that these
vessels, which were flying the Russian commercial flag,
would later on convert themselves into men-of-war by
hoisting the Russian war flag.3
1 The United States, although she not a party. See Wharton, I. § 29,
actually acquiesces in the exclusion pp. 79 and 80, and Moore, I. § 134,
of her men-of-war, seems not to pp. 666-668.
consider herself bound by the Con- 2 See Perels, p. 30.
vention of London, to which she is 3 See below, vol. II. § 84.
270 STATE TERRITORY
IX
BOUNDARIES OF STATE TERRITORY
Grotius, II. c. 3, § 18— Vattel, I. § 266— Hall, § 38— Westlake, I. pp. 141-142
— Twiss, I. §§ 147-148— Taylor, § 251— Moore, I. §§ 154-162— Bluntschli,
§§ 296-302— Hartmann, § 59— Hefiter, § 66— Holtzendorff in Holtzendorff,
II. pp. 232-239— Gareis, § 19— Liszt, § 9— Ullmann, § 91— Bonfils, Nos.
486-489— Despagnet, No. 377— Pradier-Fodere", II. Nos. 759-777—
Me'rignhac, II. p. 358— Nys, I. pp. 413-422— Rivier, L § 11— Calvo, I. §§
343-352— Fiore, II. Nos. 799-806, and Code, Nos. 1040-1049— Martens, I.
§ 89— Lord Curzon of Kedleston, " Frontiers " (Romanes lecture of 1907).
Natural
and Arti- § 198. Boundaries of State territory are the imagi-
ficial nary lines on the surface of the earth which separate
Bounda-
ries. the territory of one State from that of another, or from
unappropriated territory, or from the Open Sea. The
course of the boundary lines may or may not be indi-
cated by boundary signs. These signs may be natural
or artificial, and one speaks, therefore, of natural in
contradistinction to artificial boundaries. Natural boun-
daries may consist of water, a range of rocks or moun-
tains, deserts, forests, and the like. Artificial boundaries
are such signs as have been purposely put up to indicate
the way of the imaginary boundary-line. They may
consist of posts, stones, bars, walls,1 trenches, roads,
canals, buoys in water, and the like. It must, however,
be borne in mind that the distinction between artificial
and natural boundaries is not sharp, in so far as some
natural boundaries can be artificially created. Thus a
forest may be planted, and a desert may be created, as
was the frequent practice of the Romans of antiquity,
for the purpose of marking the frontier.
Boundary
Waters. § 199. Natural boundaries consisting of water must
be specially discussed on account of the different kinds
of boundary waters. Such kinds are rivers, lakes, land-
locked seas, and the maritime belt.
(1) Boundary rivers 2 are such rivers as separate
1 The Romans of antiquity very 2 See Huber in Z.V. I. (1906), pp.
often constructed boundary walls, 29-52 and 159-217.
and the Chinese Wall may also be
cited as an example.
BOUNDARIES OF STATE TERRITORY 271
two different States frem each other.1 If such river is

not navigable, the imaginary boundary line runs down
the middle of the river, following all turnings of the
border line of both banks of the river. On the other
hand, in a navigable river the boundary line runs
through the middle of the so-called Thalweg, that is.
the mid-channel of the river. It is, thirdly, possible
that the boundary line is the border line of the river, so
that the whole bed belongs to one of the riparian States
only.2 But this is an exception created by treaty or
by the fact that a State has occupied the lands on one
side of a river at a time prior to the occupation of the
lands on the other side by some other State.3 And
it must be remembered that, since a river sometimes
changes its course more or less, the boundary line run-
ning through the middle or the Thalweg or along the
border line is thereby also altered. In case a bridge is
built over a boundary river, the boundary line runs, fail-
ing special treaty arrangements, through the middle of the
bridge. As regards the boundary lines running through
islands rising in boundary rivers and through the aban-
doned beds of such rivers, see below, §§ 234 and 235.
(2) Boundary lakes and land-locked seas are such as
separate the lands of two or more different States from
each other. The boundary line runs through the middle
of these lakes and seas, but as a rule special treaties
portion off such lakes and seas between riparian States.4
(3) The boundary line of the maritime belt is, accord-
ing to details given above (§ 186), uncertain, since no
unanimity prevails with regard to the width of the belt.
It is, however, certain that the boundary line runs not
nearer to the shore than three miles, or one marine
league, from the low-water mark.
1 This case is not to be confounded 2 See above, § 175.
with the other, in which a river runs 3 See Twiss, I. §§ 147 and 148, and
through the lands of two different Westlake, I. p. 142.
States. In this latter case the * See above, § 179. '
boundary line runs across the river.
272 STATE TERRITORY
(4) In a narrow strait separating the lands of two

different States the boundary line runs either through
the middle or through the mid-channel,1 unless special
treaties make different arrangements.
Boundary § 200. Boundary mountains or hills are such natural
tains.' elevations from the common level of the ground as
separate the territories of two or more States from each
other. Failing special treaty arrangements, the boun-
dary line runs on the mountain ridge along with the
watershed. But it is quite possible that boundary
mountains belong wholly to one of the States which
they separate.2
Boundary § 201. Boundary lines are, for many reasons, of such
Disputes. v-âj imp0rtance that disputes relating thereto are in-
evitably very frequent and have often led to war.
During the nineteenth century, however, a tendency
began to prevail to settle such disputes peaceably. The
simplest way in which this can be done is always by
a boundary treaty, provided the parties can come to
terms.3 In other cases arbitration can settle the matter,
as, for instance, in the Alaska Boundary dispute between
Great Britain (representing Canada) and the United
States, settled in 1903. Sometimes International Com-
missions are specially appointed to settle the boundary
lines. In this way the boundary lines between Turkey,
Bulgaria, Servia, Montenegro, and Koumania were
settled after the Berlin Congress of 1878. It sometimes
happens that the States concerned, instead of settling
the boundary line, keep a strip of land between their
territories under their joint tenure and administration,
so that a so-called condominium comes into existence,
1 See Twiss, I. §§ 183 and 184, and tion of the international boundary
above, § 194. between the United States and the
2 See Fiore, II. No. 800. Dominion of Canada, signed at
3 A good example of such a Washington on April 11, 1908. See
boundary treaty is that between Martens, N.R.G. 3rd Ser. IV. (1911),
Great Britain and the United States p. 191.
of America respecting the demarca-
STATE SERVITUDES 273
as in the case of Moresnet (Kelmis) on the Prusso-

Belgian frontier.1
§ 202. Whereas the term " natural boundaries " in Natural
the theory and practice of the Law of Nations means
natural signs which indicate the course of boundary
lines, the same term is used politically 2 in various dif-
ferent meanings. Thus the French often speak of the
river Ehine as their " natural " boundary, as the Italians
do of the Alps. Thus, further, the zones within which
the language of a nation is spoken are frequently termed
that nation's " natural " boundary. Again, the line
enclosing such parts of the land as afford great facili-
ties for defence against an attack is often called the
" natural " boundary of a State, whether or not these
parts belong to the territory of the respective State.
It is obvious that all these and other meanings of
the term " natural boundaries " are of no importance
to the Law of Nations, whatever value they may have
politically.
X
STATE SERVITUDES
Vattel, I. § 89— Hall, § 42*— Westlake, I. p. 61— Pkillirnore, I. §§ 281-283—

Twiss, I. § 245— Taylor, § 252— Moore, I. §§ 163-168, II. § 177—
Bluntschli, §§ 353-359— Hartmann, § 62— Heflter, § 43— Holtzendorff
in Holtzendorff, II. pp. 242-252— Gareis, § 71— Liszt, §§ 8 and 19—
Ullmann, § 99— Bonfils, Nos. 340-344— Despagnet, Nos. 190-192—
Mengnhac, II. pp. 366-368— Pradier-Fodere, II. Nos. 834-845, 1038—
Rivier, I. pp. 296-303— Nys, II. -pp. 271-279— Calvo, III. § 1583— Fiore,
I. § 380, and Code, Nos. 1095-1097— Martens, I. §§ 94-95— Clauss, " Die
Lehre von den Staatsdienstbarkeiten " (1894) — Fabres, "Des servitudes
dans le droit international" (1901)— Hollatz, " Begriff und Wesen der
Staatsservituten " (1909) — Labrousse, "Des servitudes en droit inter-
national public " (1911)— Nys in R.I. 2nd Ser. VII. (1905), pp. 118-125,
and XIII. (1911), pp. 312-323.
§ 203. State servitudes are those exceptional and concep-

conventional restrictions on the territorial supremacy state Ser-
of a State by which a part or the whole of its territory vitudes-
1 See above, § 171, No. 1. * See Rivier, I. p. 166.
VOL. I. S
274 STATE TERRITORY
is in a limited way made perpetually to serve a certain

purpose or interest of another State. Thus a State
may by a convention be obliged to allow the passage
of troops of a neighbouring State, or may in the interest
of a neighbouring State be prevented from fortifying a
certain town near the frontier.
Servitudes must not be confounded l with those
general restrictions upon territorial supremacy which,
according to certain rules of the Law of Nations, con-
cern all States alike. These restrictions are named
" natural " restrictions of territorial supremacy (servi-
tudes juris gentium naturales), in contradistinction to the
conventional restrictions (servitutes juris gentium volun-
tariae) which constitute the State servitudes in the
technical sense of the term. Thus, for instance, it is
not a State servitude, but a " natural " restriction on
territorial supremacy, that a State is obliged to admit
the free passage of foreign merchantmen through its
territorial maritime belt.
That State servitudes are or may on occasions be of
great importance, there can be no doubt whatever.
The vast majority 2 of writers and the practice of the
States accept, therefore, the conception of State servi-
tudes, although they do not agree with regard to the
definition and the width of the conception, and al-
though, consequently, in many cases the question is
disputed whether a certain restriction upon territorial
supremacy is or is not a State servitude.
The theory of State servitudes has of late been
rejected by the Permanent Court of Arbitration at
the Hague in the case (1910) of the North Atlantic
1 This is done, for instance, by 3 See the official publication of the
Heffter (§ 43), Martens (§ 94), Nys case, pp. 115-116; Hoggin The Law
(II. p. 271), and Hall (§ 42*) ; the Quarterly Review, XXVI. (1910), pp.
latter speaks of the right of innocent 415-417 ; Richards in The Journal of
use of territorial seas as a servitude. the Society of Comparative Legislation,
2 The conception of State servi- New Series, XI. (1910), pp. 18-27;
tudes is rejected by Bulraerincq (§ Lansing in A.J. V. (1911), pp. 1-31 ;
49), Gareis (§ 71), Liszt (§§ 8 and 19), Balch and Louter in R.I. 2nd Ser.
Jellinek (" Allgemeine Staatslehre," XIII. (1911), pp. 5-23, 131-157.
p. 366).
Coast Fisheries between Great Britain and the United

States, chiefly for the three reasons that a servitude in
International Law predicated an express grant of a
sovereign right, that the doctrine of international servi-
tude originated in the peculiar and now obsolete condi-
tions prevailing in the Holy Koman Empire, and that
this doctrine, being little suited to the principle of
sovereignty which prevails in States under a constitu-
tional government and to the present international
relations of Sovereign States, had found little, if any,
support from modern publicists. It is hardly to be ex-
pected that this opinion of the Court will induce theory
and practice to drop the conception of State servitudes,
which is of great value because it fitly covers those
restrictions on the territorial supremacy of the State
by which a part or the whole of its territory is in a
limited way made perpetually to serve a certain purpose
or interest of another State. That the doctrine of
State servitudes originated in the peculiar conditions of
the Holy Koman Empire does not make it unfit for the
conditions of modern life if its practical value can be
demonstrated. Further, the assertion that the doctrine
is but little suited to the principle of sovereignty which
prevails in States under a constitutional government,
and has, therefore, found little, if any, support from
modern publicists, does not agree with the facts.
Lastly, the statement that a servitude in International
Law predicated an express grant of a sovereign right,
is not based on any other authority than the conten-
tion of the United States, which made this unfounded
statement in presenting their case before the Tribunal.
The fact is that a State servitude, although to a certain
degree it restricts the sovereignty (territorial supre-
macy) of the State concerned, does as little as any
other restriction upon the sovereignty of a State confer
a sovereign right upon the State in favour of which
it is established.
276 STATE TERRITORY
subjects § 204. Subjects of State servitudes are States only

serv£te and exclusively, since State servitudes can exist be-
tudes. tween States only (territorium dominans and territorium
serviens). Formerly some writers l maintained that
private individuals and corporations were able to
acquire a State servitude ; but nowadays it is agreed
that this is not possible, since the Law of Nations is a
law between States only and exclusively. Whatever
rights may be granted by a State to foreign individuals
and corporations, such rights can never constitute State
servitudes.
On the other hand, every State can acquire and
grant State servitudes, although some States may, in
consequence of their particular position within the
Family of Nations, be prevented from acquiring or
granting some special kind or another of State servi-
tudes. Thus neutralised States are in many points
hampered in regard to acquiring and granting State
servitudes, because they have to avoid everything that
could drag them indirectly into war. Thus, further,
half-Sovereign and part-Sovereign States may not be
able to acquire and to grant certain State servitudes on
account of their dependence upon their superior State.
But apart from such exceptional cases, even not-full
Sovereign States can acquire and grant State servi-
tudes, provided they have any international status at all.
object of § 205. The object of State servitudes is always the
vitudes.er~ whole torial
or a supremacy
part ofofthewhich
territory of the State
is restricted the terri-
by any such
servitude.2 Since the territory of a State includes not
only the land but also the rivers which water the land,
the maritime belt, the territorial subsoil, and the terri-
1 Bluzitschli, § 353 ; Heffter, § 44. Fisheries, that a State servitude
8 The contention of the United conferred a sovereign right upon the
States, adopted by the Hague State in favour of which it is estab-
Arbitration Tribunal, in 1910, in the lished, was refuted above in § 203,
case of the North Atlantic Coast p. 275.
torial atmosphere, all these can, as well as the service

of the land itself, be an object of State servitudes.
Thus a State may have a perpetual right of admittance
for its subjects to the fishery in the maritime belt of
another State, or a right to lay telegraph cables through
a foreign maritime belt, or a right to make and use a
tunnel through a boundary mountain, and the like.
And should ever aerostation become so developed as
to be of practical utility, a State servitude might be
created through a State acquiring a perpetual right to
send military aerial vehicles through the territorial
atmosphere of a neighbouring State. It must, however,
be emphasised that the Open Sea can never be the
object of a State servitude, since it is no State's
territory.
Since the object of State servitudes is the territory
of a State, all such restrictions upon the territorial
supremacy of a State as do not make a part or the
whole of its territory itself serve a purpose or an interest
of another State are not State servitudes. The terri-
tory as the object is the mark of distinction between
State servitudes and other restrictions on the territorial
supremacy. Thus the perpetual restriction imposed
upon a State by a treaty not to keep an army beyond
a certain size is certainly a restriction on territorial
supremacy, but is not, as some writers1 maintain, a
State servitude, because it does not make the territory
of one State serve an interest of another. On the other
hand, when a State submits to a perpetual right enjoyed
by another State of passage of troops, or to the duty
not to fortify a certain town, place, or island,2 or to the
claim of another State for its subjects to be allowed the
1 See, for instance, Bluntschli,§ 356. of Paris— see Martens, N.R.G. XV.
2 Thus by article 32 of the peace pp. 780 and 788 — Russia is prevented
treaty of Paris, 1856, and by the from fortifying the Aland Islands in
Convention of March 30, 1856, the Baltic. See below, § 522, and
between Great Britain, France, and Waultrin in E.G. XIV. pp. 517-533.
Russia, annexed to the peace treaty See also A.J. II. (1908), p. 397.
278 STATE TERRITORY
fishery within the former's territorial belt ; l in all these

and the like 2 cases the territorial supremacy of a State
is in such a way restricted that a part or the whole of
its territory is made to serve the interest of another
State, and such restrictions are therefore State servi-
tudes.3
Different § 206. According to different qualities different kinds
state ser- of State servitudes must be distinguished.
vitudes.
(1) Affirmative, active, or positive, are those servi-
tudes which give the right to a State to perform certain
acts on the territory of another State, such as to build
and work a railway, to establish a custom-house, to
let an armed force pass through a certain territory
(droit d'e'tape), or to keep troops in a certain fortress,
to use a port or an island as a coaling station, and
the like.
(2) Negative, are such servitudes as give a right to
1 Examples of such fishery servi- gave rise to disputes extending over
tudes are :— a long period. The dispute is now
(a) The former French fishery settled by an award of the Hague
rights in Newfoundland which were Permanent Court of Arbitration
based on article 13 of the Treaty of given in September (1910). That
Utrecht, 1713, and on the Treaty of the Court refused to recognise the
Versailles, 1783. See the details conception of State servitudes, was
regarding the Newfoundland Fishery pointed out above, § 203. See above,
Dispute, in Phillimore, I. § 195 ; § 203, and the literature there quoted.
Clauss, pp. 17-31 ; Geffcken in R.I. 2 Phillimore (I. § 283) quotes two
XXII. p. 217; Brodhurst in Law interesting State servitudes which
Magazine and Review, XXIV. p. 67. belong to the past. According to
The French literature on the ques- articles 4 and 10 of the Treaty of
tion is quoted in Bonfils, No. 342, Utrecht, 1713, France was, in the
note 1. The dispute is now settled interest of Great Britain, not to
by France's renunciation of the allow the Stuart Pretender to reside
privileges due to her according to on French territory, and Great
article 13 of the Treaty of Utrecht, Britain was, in the interest of Spain,
which took place by article 1 of the not to allow Moors and Jews to
Anglo-French Convention signed in reside in Gibraltar.
London on April 8, 1904 (see Martens, 3 The controverted question
N.R.G. 2nd Ser. XXXII. (1905), p. 29). whether neutralisation of a State
But France retains, according to creates a State servitude is answered
article 2 of the latter Convention, by Clauss (p. 167) in the aflirmative,
the right of fishing for her subjects but by Ullmann (§ 99), correctly, I
in certain parts of the territorial think, in tinction
the mustnegative.
waters of Newfoundland. be drawn Butbetween
a dis-
(6) The fishery rights granted by neutralisation of a whole State and
Great Britain to the United States neutralisation of certain parts of a
of America in certain parts of the State. In the latter case a State
British North Atlantic Coast by servitude is indeed created.
article 1 of the Treaty of 1818 which
a State to demand of "another State that the latter shall

abstain from exercising its territorial supremacy in
certain ways. Thus a State can have a right to demand
that a neighbouring State shall not fortify certain towns
near the frontier, that another State shall not allow
foreign men-of-war in a certain harbour.1
(3) Military, are those State servitudes which are
acquired for military purposes, such as the right to keep
troops in a foreign fortress, or to let an armed force pass
through foreign territory, or to demand that a town on
foreign territory shall not be fortified, and the like.
(4) Economic, are those servitudes which are ac-
quired for the purpose of commercial interests, traffic,
and intercourse in general, such as the right of fisheries
in foreign territorial waters, to build a railway on or
lay a telegraph cable through foreign territory, and the
like.
§ 207. Since State servitudes, in contradistinction to validity of
personal rights (rights in personam), are rights inherent
to the object with which they are connected (rights
in rem), they remain valid and may be exercised how-
ever the ownership of the territory to which they apply
may change. Therefore, if, after the creation of a State
servitude, the part of the territory affected comes by
subjugation or cession under the territorial supremacy
of another State, such servitude remains in force. Thus,
when the Alsatian town of Hiiningen became in 1871,
together with the whole of Alsace, German territory,
the State servitude created by the Treaty of Paris, 1815,
that Hiiningen should, in the interest of the Swiss canton
of Basle, never be fortified, was not extinguished.2
Thus, further, when in 1860 the former Sardinian pro-
vinces of Chablais and Faucigny became French, the
1 Affirmative State servitudes con- quit has been adopted by the Law of
sist in patiendo, negative servitudes Nations.
in non faciendo. The rule of Roman 2 Details in Clauss, pp. 15-17.
Law servitus in faciendo consistere ne-
280 STATE TERRITORY
State servitude created by article 92 of the Act of the

Vienna Congress, 1815, that Switzerland should have
temporarily during war the right to locate troops in
these provinces, was not extinguished.1
It is a moot point whether military State servitudes
can be exercised in time of war by a belligerent if the
State with whose territory they are connected remains
neutral. Must such State, for the purpose of upholding
its neutrality, prevent the belligerent from exercising
the respective servitude — for instance, the right of
passage of troops ? 2
Extmc- § 208. State servitudes are extinguished by agree-
s£Jte0f ment between the States concerned, or by express or
P6™-
tudes. tacit3
. renunciation on the part*j of the State in whose
interest they were created. They are not, according to
the correct opinion, extinguished by reason of the
territory involved coming under the territorial supre-
macy of another State. But it is difficult to under-
stand why, although State servitudes are called into
existence through treaties, it is sometimes maintained
that the clause rebus sic stantibus 4 cannot be applied
in case a vital change of circumstances makes the exer-
cise of a State servitude unbearable. It is a matter of
course that in such case the restricted State must pre-
viously try to come to terms with the State which is
the subject of the servitude. But if an agreement cannot
be arrived at on account of the unreasonableness of the
other party, the clause rebus sic stantibus may well be
resorted to.5 The fact that the practice of the States
does not provide any example of an appeal to this clause
1 Details in Clauss, pp. 8-15. 3 See Bluntschli, § 359 b. The
2 This question became practical opposition of Clauss (p. 219) and
when in 1900, during the South others to this sound statement of
African war, Great Britain claimed, Bluntschli's is not justified.
and Portugal was ready to grant, * See below, § 639.
passage of troops through Portuguese 6 See Bluntschli, § 359 d, and
territory
vol. II. §§in 306
SouthandAfrica. See below,
323 ; Clauss, Pradier-Fode're',
pp. (p. II. No. oppose
222) and others 845. Clauss
this
212-217 ; and Dumas in R.G. XVI. sound statement likewise.
(1909), pp. 289-316.
MODES OF ACQUIRING STATE TERRITORY 281
for the purpose of doing away with a State servitude

proves only that such appeal has hitherto been un-
necessary.
XI
MODES OF ACQUIRING STATE TERRITORY
Vattel, I. §§ 203-207— Hall, § 31— Westlake, I. pp. 84-116— Lawrence, §§ 74-78

— Phillimore, I. §§ 222-225— Twiss, I. §§ 113-139— Halleck, I. p. 154—
Taylor, §§ 217-228— Wheaton, §§ 161-163— Bluntschli, §§ 278-295—
Hartmann, § 61— Heffter, § 69— Holtzendorff in Holtzendorff, II. pp.
252-256— Gareis, § 76— Liszt, § 10— Ullmann, § 92— Bonfils, No. 532—
Despagnet, No. 378— Pradier-Foddrd, II. Nos. 781-787— Merignhac, II.
pp. 410-412— Rivier, I. § 12— Nys, II. pp. 1-3— Calvo, I. § 263— Fiore,
I. Nos. 838-840— Martens, I. § 90— Heimburger, "Der Erwerb der
Gebietshoheit " (1888).
§ 209. Since States only and exclusively are sub- who can
jects of the Law of Nations, it is obvious that, as far as statere
the Law of Nations is concerned, States1 solely can Territory?
acquire State territory. But the acquisition of terri-
tory by an existing State and member of the Family of
Nations must not be confounded, first, with the founda-
tion of a new State, and, secondly, with the acquisition
of such territory and sovereignty over it by private
individuals or corporations as lies outside the dominion
of the Law of Nations.
(1) Whenever a multitude of individuals, living on
or entering into such a part of the surface of the globe
as does not belong to the territory of any member of
the Family of Nations, constitute themselves as a State
and nation on that part of the globe, a new State comes
into existence. This State is not, by reason of its birth,
a member of the Family of Nations. The formation of
a new State is, as will be remembered from former
1 There is no doubt that no full- doing. As regards the question
Sovereign State is, as a rule, pre- whether a neutralised State is, by its
vented by the Law of Nations from neutralisation, prevented from acquir-
acquiring more territory than it ing territory, see above, § 96, and
already owns, unless some treaty below, § 215.
arrangement precludes it from so
282 STATE TERRITORY
statements,1 a matter of fact, and not of law. It is

through recognition, which is a matter of law, that such
new State becomes a member of the Family of Nations
and a subject of International Law. As soon as recog-
nition isgiven, the new State's territory is recognised
as the territory of a subject of International Law, and
it matters not how this territory was acquired before
the recognition.
(2) Not essentially different is the case in which a
private individual or a corporation acquires land with
sovereignty over it in countries which are not under the
territorial supremacy of a member of the Family of
Nations. The actual proceeding in all such cases is that
all such acquisition is made either by occupation of
hitherto uninhabited land, for instance an island, or
by cession from a native tribe living on the land. Ac-
quisition ofterritory and sovereignty thereon in such
cases takes place outside the dominion of the Law of
Nations, and the rules of this law, therefore, cannot
be applied. If the individual or corporation which has
made the acquisition requires protection by the Law of
Nations, they must either declare a new State to be
in existence and ask for its recognition by the Powers,
as in the case of the former Congo Free State,2 or they
must ask a member of the Family of Nations to acknow-
ledge the acquisition as made on its behalf.3
Former § 210. No unanimity exists among writers on the
concern6 Law of Nations with regard to the modes of acquiring
ingAcqui-
sition of territoryJ
on the part of the members of the Family* of
Territory. Nations. The topic owes its controversial character to
1 See above, § 71. Brooke is still recognised as Sove-
2 See above, § 101. The case of reign.
Sir James Brooke, who acquired in 8 The matter is treated with gi'eat
1841 Sarawak, in North Borneo, and lucidity by Heimburger, pp. 44-77,
established an independent State who defends the opinion represented
there, of which he became the in the text against Sir Travers Twiss
Sovereign, may also be cited. Sara- (I. Preface, p. x. ; also in R.I. xv.
wak is under English protectorate, p. 547, and xvi. p. 237) and other
but the successor of Sir James writers. See also Ullmann, § 93.
MODES OF ACQUIRING STATE TERRITORY 283
the fact that the conception of State territory has under-

gone a great change since the appearance of the science
of the Law of Nations. When Grotius created that
science, State territory used to be still, as in the Middle
Ages, more or less identified with the private property
of the monarch of the State. Grotius and his followers
applied, therefore, the rules of Roman Law concerning
the acquisition of private property to the acquisition of
territory by States.1 As nowadays, as far as Interna-
tional Law is concerned, every analogy to private
property has disappeared from the conception of State
territory, the acquisition of territory by a State can
mean nothing else than the acquisition of sovereignty
over such territory. It is obvious that under these
circumstances the rules of Roman Law concerning the
acquisition of private property can no longer be applied.
Yet the fact that they have been applied in the past
has left traces which can hardly be obliterated ; and
they need not be obliterated, since they contain a good
deal of truth in agreement with the actual facts. But
the different modes of acquiring territory must be
taken from the real practice of the States, and not from
Roman Law, although the latter's terminology and
common-sense basis may be made use of.
§ 211. States as living organisms grow and decrease what
in territory. If the historical facts are taken into con-
sideration, different reasons may be found to account
for the exercise of sovereignty by a State over the there are.
different sections of its territory. One section may
have been ceded by another State, another section may
have come into the possession of the owner in conse-
quence of accretion, a third through subjugation, a
1 See above, § 168. The dis- and Grotius, II. c. 3, § 4, quotes it,
tinction between imperium and but the consequences thereof were
dominium in Seneca's dictum that nevertheless not deduced. (See
" omnia rex imperio possidet, sin- Westlake, Chapters, pp. 129-133, and
guli dominio" was well known, Westlake, I. pp. 84-88.)
284 STATE TERRITORY
fourth through occupation of no State's land. As re-

gards afifth section, a State may say that it has exer-
cised its sovereignty over the same for so long a period
that the fact of having had it in undisturbed possession
is a sufficient title of ownership. Accordingly, five
modes of acquiring territory may be distinguished,
namely : cession, occupation, accretion, subjugation,
and prescription. Most writers recognise these five
modes. Some, however, do not recognise prescription ;
some assert that accretion creates nothing else than a
modification of the territory of a State ; and some do
not recognise subjugation at all, or declare it to be only
a special case of occupation. It is for these reasons that
some writers recognise only two or three1 modes of
acquiring territory. Be that as it may, all modes,
besides the five mentioned, enumerated by some writers,
are in fact not special modes, but only special cases of
cession.2 And whatever may be the value of the
opinions of publicists, so much is certain that the
practice of the States recognises cession, occupation,
accretion, subjugation, and prescription as distinct
modes of acquiring territory.
original § 212. The modes of acquiring territory are correctly
vatdi4en~ divided according as the title they give is derived from
Ac°duisi°f ê ê °* a Pr*or owner State, or not. Cession is there-
tion. fore a derivative mode of acquisition, whereas occupa-
tion, accretion, subjugation, and prescription are original
modes.3
1 Thus Gareis (§ 70) recognises 3 Lawrence (§ 74) enumerates
cession and occupation only, whereas conquest (subjugation) and pre-
Heimburger (pp. 106-110) and Holt- scription besides cession as derivative
zendorff (II. p. 254) recognise cession, modes. This is, however, merely the
occupation, and accretion only. consequence of a peculiar conception
2 See below, § 216. Such alleged of what is called a derivative mode
special modes are sale, exchange, of acquisition.
gift, marriage contract, testamentary
disposition, and the like.
CESSION 285
XII
CESSION
Hall, § 35— Lawrence, § 76— Phillimore, I. §§ 252-273— Twiss, I. § 138— Walker,

§ 10— Halleck, I. pp. 154-157— Taylor, § 227— Moore, I. §§ 83-86—
Bluntschli, §§ 285-287— Hartmann, § 61— Heffter, §§ 69 and 182—
Holtzendorfi in Holtzendorff, II. pp. 269-274— Gareis, § 70— Liszt, § 10—
Ullmann, §§ 97-98— Bonfils, Nos. 364-371— Merignhac, II. pp. 487-497—
Despagnet, Nos. 381-391— Pradier-Fodere, II. Nos. 817-819— Rivier, I.
pp. 197-217— Nys, II. pp. 8-31— Calvo, I. § 266— Fiore, II. §§ 860-861,
and Code, No. 1053— Martens, I. § 91— Heimburger, " Der Erwerb der
Gebietshoheit " (1888), pp. 110-120.
§ 213. Cession of State territory is the transfer of Concep-

sovereignty over State territory by the owner State to cession of
another State. There is no doubt whatever that such Territory.
cession is possible according to the Law of Nations, and
history presents innumerable examples of such transfer
of sovereignty. The Constitutional Law of the different
States may or may not lay down special rules 1 for the
transfer or acquisition of territory. Such rules can
have no direct influence upon the rules of the Law of
Nations concerning cession, since Municipal Law can
neither abolish existing nor create new rules of Inter-
national Law.2 But if such municipal rules contain
constitutional restrictions on the Government with re-
gard to cession of territory, these restrictions are so far
important that such treaties of cession concluded by
heads of States or Governments as violate these re-
strictions are not binding.3
§ 214. Since cession is a bilateral transaction, it has Subjects
two subjects — namely, the ceding and the acquiring
State. Both subjects must be States, and only those
cessions in which both subjects are States concern
the Law of Nations. Cessions of territory made to
private persons and to corporations4 by native tribes
or by States outside the dominion of the Law of Nations
1 See above, § 168. 3 See below, § 497.
2 See above, § 21. * See above, § 209, No. 2.
286 STATE TERRITORY
do not fall within the sphere of International Law, neither

do cessions of territory by native tribes made to States 1
which are members of the Family of Nations. On the
other hand, cession of territory made to a member of
the Family of Nations by a State as yet outside that
family is real cession and a concern of the Law of Nations,
since such State becomes through the treaty of cession
in some respects a member of that family.2
object of § 215. The object of cession is sovereignty over such
territory as has hitherto already belonged to another
State. As far as the Law of Nations is concerned, every
State as a rule can cede a part of its territory to another
State, or by ceding the whole of its territory can even
totally merge in another State. However, since certain
parts of State territory, as for instance rivers and the
maritime belt, are inalienable appurtenances of the land,
they cannot be ceded without a piece of land.3
The controverted question whether permanently
neutralised parts of a not permanently neutralised
State can be ceded to another State must be answered
in the affirmative,4 although the Powers certainly can
exercise an intervention by right. On the other hand,
a permanently neutralised State could not, except in
the case of mere frontier regulation, cede a part of its
neutralised territory to another State without the con-
sent of the Powers.5 Nor could a State under suzerainty
or protectorate cede a part or the whole of its territory
to a third State without the consent of the superior
State. Thus, the Ionian Islands could not in 1863 have
merged in Greece without the consent of Great Britain,
which exercised a protectorate over these islands.
Form of § 216. The only form in which a cession can be effected
cession.
1 See below, §§ 221 and 222. and Faucigny to France. See above,
* See above, § 103. § 207.
3 See above, §§ 175 and 185. 6 See above, § 96, and the litera-
4 Thus in 1860 Sardinia ceded her ture there quoted,
neutralised provinces of Chablais
CESSION 287
is an agreement embodied in a treaty between the ceding

and the acquiring State. Such treaty may be the out-
come of peaceable negotiations or of war, and the
cession may be one with or without compensation.
If a cession of territory is the outcome of war, it
is the treaty of peace which stipulates the cession
among its other provisions. Such cession is regularly
one without compensation, although certain duties may
be imposed upon the acquiring State, as, for instance,
of taking over a part of the debts of the ceding State
corresponding to the extent and importance of the
ceded territory, or that of giving the individuals domi-
ciled on the ceded territory the option to retain their
old citizenship or, at least, to emigrate.
Cessions which are the outcome of peaceable negotia-
tions may be agreed upon by the interested States from
different motives and for different purposes. Thus
Austria, during war with Prussia and Italy in 1866,
ceded Venice to France as a gift, and some weeks after-
wards France on her part ceded Venice to Italy. The
Duchy of Courland ceded in 1795 its whole territory to
and voluntarily merged thereby in Russia, in the same
way the then Free Town of Mulhouse merged in France
in 1798, the Congo Free State in Belgium in 1908, and
the Empire of Korea in Japan in 1911.
Cessions have in the past often been effected by
transactions which are analogous to transactions in
private business life. As long as absolutism was reign-
ing over Europe, it was not at all rare for territory to
be ceded in marriage contracts or by testamentary dis-
positions.* Inthe interest of frontier regulations, but
also for other purposes, exchanges of territory frequently
take place. Sale of territory is quite usual ; as late as
1 Phillimore, I. §§ 274-276, enu- government could nowadays by a
merates many examples of such testamentary disposition cede terri-
cession. The question whether the tory to another State must, I believe,
monarch of a State under absolute be answered in the affirmative.
288 STATE TERRITORY
1868 Russia sold her territory in America to the United

States for 7,200,000 dollars, and in 1899 Spain sold the
Caroline Islands to Germany for 25,000,000 pesetas.
Pledge and lease are also made use of. Thus, the then
Republic of Genoa pledged Corsica to France in 1768,
Sweden pledged Wismar to Mecklenburg in 1803 ; China l
leased in 1898 Kiaochau to Germany,2 Wei-Hai-Wei
and the land opposite the island of Hong Kong to
Great Britain,3 and Port Arthur to Russia.
Whatever may be the motive and the purpose of
the transaction, and whatever may be the compensa-
tion, ifany, for the cession, the ceded territory is trans-
ferred to the new sovereign with all the international
obligations4 locally connected with the territory (Res
transit cum suo onere, and Nemo plus juris transferre
potest, quam ipse habet).
Tradition § 217. The treaty of cession must be followed by
ceded actual tradition of the territory to the new owner State,
Territory. unless SUch territory is already occupied by the new
owner, as in the case where the cession is the outcome
of war and the ceded territory has been during such
war in the military occupation of the State to which
it is now ceded. But the validity of the cession does
not depend upon tradition,5 the cession being completed
by ratification of the treaty of cession, and the capa-
bility of the new owner to cede the acquired territory
to a third State at once without taking actual posses-
sion of it.6 But of course the new owner State cannot
1 See above, § 171, No. 3. Cession takes place in the case of cession of
may also take place under the dis- territory has been discussed above,
guise of an agreement according to
which territory comes under the 6 This is controversial. Many
" administration " or under the " use, writers — see, for instance, Rivier, I.
occupation, p.
in 203
§84.the —text.
oppose the opinion presented
State. See and control§ "171,
above, of a foreign
Nos. 2
and 4. 9 Thus France, to which Austria
2 See Martens, N.R.G. 2nd Ser. ceded in 1859 Lombardy, ceded this
XXX. (1904), p. 326. territory on her part to Sardinia
3 See Martens, N.R.G. 2nd Ser. without previously having actually
XXXII. ( 1905), pp. 89 and 90. taken possession of it.
4 How far a succession of States
CESSION 289
exercise its territorial supremacy thereon until it has

taken physical possession of the ceded territory.
§ 218. As a rule, no third Power has the right of veto of
veto with regard to a cession of territory. Exception-
ally, however, such right may exist. It may be that a
third Power has by a previous treaty acquired a right
of pre-emption concerning the ceded territory, or that
some early treaty has created another obstacle to the
cession, as, for instance, in the case of permanently
neutralised parts of a not-permanently neutralised
State.1 And the Powers have certainly the right of
veto in case a permanently neutralised State desires to
increase its territory by acquiring land through cession
from another State.2 But even where no right of veto
exists, a third Power might intervene for political rea-
sons. For there is no duty on the part of third States
to acquiesce in such cessions of territory as endanger
the balance of power or are otherwise of vital impor-
tance.3 And a strong State will practically always
interfere in case a cession of such a kind as menaces its
vital interests is agreed upon. Thus, when in 1867 the
reigning King of Holland proposed to sell Luxemburg
to France, the North German Confederation intervened,
and the cession was not effected, but Luxemburg became
permanently neutralised.
§ 219. As the object of cession is sovereignty over Plebiscite
the ceded territory, all such individuals domiciled thereon tion.°P~
as are subjects of the ceding State become ipso facto by
the cession subjects 4 of the acquiring State. The hard-
ship involved in the fact that in all cases of cession the
inhabitants of the territory lose their old citizenship
and are handed over to a new Sovereign whether they
like it or not, has created a movement in favour of the
1 See above, § 215. Succession, &c." (1907), pp. 42-45 ;
2 See above, §§ 209 and 215. Cogordan, " La Nationalite " (1890),
3 See above, § 136. pp. 317-400 ; Moore, III. § 379.
* See Keith, " The Theory of State
VOL. I. T
290 STATE TERRITORY
claim that no cession shall be valid until the inhabi-

tants have by a plebiscite1 given their consent to the
cession. And several treaties 2 of cession concluded
during the nineteenth century stipulate that the cession
shall only be valid provided the inhabitants consent to
it through a plebiscite. But it is doubtful whether the
Law of Nations will ever make it a condition of every
cession that it must be ratified by a plebiscite.3 The
necessities of international policy may now and then
allow or even demand such a plebiscite, but in most
cases they will not allow it.
The hardship of the inhabitants being handed over
to a new Sovereign against their will can be lessened
by a stipulation in the treaty of cession binding the
acquiring State to give the inhabitants of the ceded
territory the option of retaining their old citizenship
on making an express declaration. Many treaties of
cession concluded during the second half of the nine-
teenth century contain this stipulation. But it must
be emphasised that, failing a stipulation expressly for-
bidding it,the acquiring State may expel those in-
habitants who have made use of the option and retained
their old citizenship, since otherwise the whole popula-
tion of the ceded territory might actually consist of
aliens and endanger the safety of the acquiring State.
The option to emigrate within a certain period, which
is frequently stipulated in favour of the inhabitants of
ceded territory, is another means of averting the charge
that inhabitants are handed over to a new Sovereign
against their will. Thus article 2 of the Peace Treaty
of Frankfort, 1871, which ended the Franco-German
war, stipulated that the French inhabitants of the
1 See Stoerk, " Option und Plebis- 2 See Rivier, I. p. 210, where all
cite " (1879) ; Rivier, I. p. 204 ; Freu- these treaties are enumerated,
denthal, "Die Volksabstimmung bei 3 Although Grotius (II. c. VI. § 4)
Gebietsabtretungen und Eroberuri- taught this to be necessary,
gen " (1891) ; Bonfils, No. 570 ; Des-
pagnet, No. 391 ; Ullmann, § 97.
OCCUPATION 291
ceded territory of Alsace and Lorraine should up to

October 1, 1872, enjoy the privilege of transferring
their domicile from the ceded territory to French soil.1
XIII
OCCUPATION
Hall, §§ 32-34— Westlake, I. pp. 96-111, 119-133— Lawrence, § 74— Phillimore,

I. §§ 236-250— Twiss, I. §§ 118-126— Halleck, I. p. 154— Taylor, §§ 221-
224— Walker, § 9— Whartoii, I. § 2— Moore, I. §§ 80-81— Wheaton, §§
165-174— Bluntschli, §§ 278-283— Hartmann, § 61— Heffter, § 70—
Ullmann, §§ 93-96— Bonfils, Nos. 536-563— Despagnet, Nos. 329-399—
Merignhac, II. pp. 419-487— Pradier-Fodere, II. Nos. 784-802— Rivier,
I. pp. 188-197— Nys, II. pp. 47-108— Calvo, I. §§ 266-282— Fiore, II.
Nos. 841-849, and Code, Nos. 1054-1067 — Martens, I. § 90— Tartarin,
"Traite de 1'occupation" (1873)— Westlake, Chapters, pp. 155-187—
Heimburger, " Der Erwerb der Gebietshoheit " (1888), pp. 1C3-155 —
Salomon, " L'occupation des territoires sans maitre " (1889) — Jeze,
" Etude theorique et pratique sur 1'occupation, &c." (1896) — Macdonell
in the Journal of the Society of Comparative Legislation, New Series, I.
(1899), pp. 276-286— Waultrin in R.G. XV. (1908), pp. 78, 185, 401.
§ 220. Occupation is the act of appropriation by a concep-

State through which it intentionally acquires sove- o°cupa-
reignty over such territory as is at the time not under tion-
the sovereignty of another State. Occupation as a mode
of acquisition differs from subjugation 2 chiefly in so
far as the conquered and afterwards annexed territory
has hitherto belonged to another State. Again, occupa-
tion differs from cession in so far as through cession
the acquiring State receives sovereignty over the respec-
tive territory from the former owner State. In contra-
distinction to cession, which is a derivative mode of
1 The important question whether time of the cession in Great Britain,
subjects of the ceding States who are would not have lost their French
born on the ceded territory but have citizenship through the cession to
their domicile abroad become ipso Germany but for article 1, part 2, of
facto by the cession subjects of the the additional treaty of Dec. 11,
acquiring State, must, I think, be 1871, to the Peace Treaty of Frank-
answered in the negative, unless fort. (Martens, N.R.G. XX. p. 847.)
special treaty arrangements stipulate See Bonfils, No. 427, and Cogordan,
the contrary. Therefore, Frenchmen " La Nationalite, &c." (1890), p. 361.
born in Alsace but domiciled at the 2 See below, § 236.
292 STATE TERRITORY
acquisition, occupation is therefore an original mode.

And it must be emphasised that occupation can only
take place by and for a State ; l it must be a State act,
that is, it must be performed in the service of a State,
or it must be acknowledged by a State after its per-
formance.
occupa-0i: § 221' Onty suc]l territor7 can be tne object of

tion. occupation as is no State's land, whether entirely un-
inhabited, as e.g. an island, or inhabited by natives
whose community is not to be considered as a State.
Even civilised individuals may live and have private
property on a territory without any union by them into
a State proper which exercises sovereignty over such
territory. And natives may live on a territory under
a tribal organisation which need not be considered a
State proper. But a part or- the whole of the territory
of any State, even although such State is entirely out-
side the Family of Nations, is not a possible object of
occupation, and it can only be acquired through cession 2
or subjugation. On the other hand, a territory which
belonged at one time to a State but has been afterwards
abandoned, is a possible object for occupation on the
part of another State.3
Although the Open Sea is free and is, therefore, not
the object of occupation, the subsoil 4 of the bed of the
Open Sea may become the object of occupation through
driving mines and piercing tunnels from the coast.5
Occupa- § 222. Theory and practice agree nowadays upon the
effected* ruê â^ occupation is effected through taking posses-
sion of and establishing an administration over the
territory in the name of and for the acquiring State.
1 See above, § 209. North Pole could be the object of
- See above, § 214. occupation. The question must, I
;! See below, §§ 228 and 247. believe, be answered in the negative
4 See below, §§ 287c and 287d. since there is no land on the Pole.
5 When, in 1909, Admiral Peary See Scott in A.J. III. (1909), pp. 928-
reached the North Pole and hoisted 941 and Balch in A.J. IV. (1910), pp.
the flag of the United States the 2G5-275.
question was discussed whether the
OCCUPATION 293
Occupation thus effected is real occupation, and, in

contradistinction to fictitious occupation, is named
effective occupation. Possession and administration
are the two essential facts that constitute an effective
occupation.
(1) The territory must really be taken into possession
by the occupying State. For this purpose it is neces-
sary that the respective State should take the territory
under its sway (corpus) with the intention to acquire
sovereignty over it (animus). This can only be done
by a settlement on the territory accompanied by some
formal act which announces both that the territory has
been taken possession of and that the possessor intends
to keep it under his sovereignty. The necessary formal
act is usually performed either by the publication of a
proclamation or by the hoisting of a flag. But such
formal act by itself constitutes fictitious occupation
only, unless there is left on the territory a settlement
which is able to keep up the authority of the flag. On
the other hand, it is irrelevant whether or not some
agreement is made with the natives by which they
submit themselves to the sway of the occupying State.
Any such agreement is usually neither understood nor
appreciated by them, and even if the natives really do
understand the meaning, such agreements have a moral
value only.1
(2) After having, in the aforementioned way, taken
possession of a territory, the possessor must establish
some kind of administration thereon which shows that
the territory is really governed by the new possessor.
If within a reasonable time after the act of taking
possession the possessor does not establish some re-
sponsible authority which exercises governing functions,
1 If an agreement with natives usual to obtain a cession from a
were legally important, the respec- native chief, this is, nevertheless,
tive territory would be acquired by not cession in the technical sense of
cession, and not by occupation. the term in International Law ; see
But although it is nowadays quite above, § 214.
294 STATE TERRITORY
there is then no effective occupation, since in fact no

sovereignty of a State is exercised over the territory.
inchoate § 223. In former times the two conditions of posses-
Discovery, sion and administration which now make the occupation
effective were not considered necessary for the acquisi-
tion of territory through occupation. In the age of
the discoveries, States maintained that the fact of dis-
covering ahitherto unknown territory was sufficient
reason for considering it as acquired through occupation
by the State in whose service the discoverer made his
explorations. And although later on a real taking
possession of the territory was considered necessary for
its occupation, it was not until the eighteenth century
that the writers on the Law of Nations postulated an
effective occupation as necessary,1 and it was not until
the nineteenth century that the practice of the States
accorded with this postulate. But although nowadays
discovery does not constitute acquisition through occu-
pation, itis nevertheless not without importance. It is
agreed that discovery gives to the State in whose service
it was made an inchoate title ; it " acts as a temporary
bar to occupation by another State " 2 within such a
period as is reasonably sufficient for effectively occupy-
ing the discovered territory. If such period lapses with-
out any attempt by the discovering State to turn its
inchoate title into a real title of occupation, such inchoate
title perishes, and any other State can now acquire the
territory by means of an effective occupation.
Notifica- § 224. No rule of the Law of Nations exists which
occupL makes notification of occupation to other Powers a
ot°her° necessary condition of its validity. But as regards all
Powers, future occupations on the African coast the Powers
assembled at the Berlin Congo Conference in 1884-1885
have by article 34 of the General Act 3 of this Conference
1 See Vattel, I. § 208. 3 See Martens, N.R.G. 2nd Ser. X.
- Thus Hall, § 32. p. 426.
OCCUPATION 295
stipulated that occupation shall be notified to one an-

other, so that such notification is now a condition of
the validity of certain occupations in Africa. And there
is no doubt that in time this rule will either by custom
or by treaty be extended from occupations on the
African coast to occupations everywhere else.
§ 225. Since an occupation is valid only if effective, Extent of
it is obvious that the extent of an occupation ought tionUpa"
only to reach over so much territory as is effectively
occupied. In practice, however, the interested States
have neither in the past nor in the present acted in
conformity with such a rule ; on the contrary, they
have always tried to attribute to their occupation a
much wider area. Thus it has been maintained that
an effective occupation of the land at the mouth of a
river is sufficient to bring under the sovereignty of the
occupying State the whole territory through which such
river and its tributaries run up to the very crest of the
watershed.1 Again, it has been maintained that, when
a coast line has been effectively occupied, the extent
of the occupation reaches up to the watershed of all
such rivers as empty into the coast line.2 And it has,
thirdly, been asserted that effective occupation of a
territory extends the sovereignty of the possessor also
over neighbouring territories as far as it is necessary
for the integrity, security, and defence of the really
occupied land.3 But all these and other fanciful asser-
tions have no basis to rest upon. In truth, no general
rule can be laid down beyond the above, that occupa-
tion reaches as far as it is effective. How far it is
effective is a question of the special case. It is obvious
1 Claim of the United States in their dispute with Spain concerning
the Oregon Boundary dispute (1827) the boundary of Louisiana (1803),
with Great Britain. See Twiss, I. approved of by Twiss, I. § 125.
§§ 126 and 127, and his '« The Oregon 3 This is the so-called "right of
Question Examined " (1846) ; Philli- contiguity," approved of by Twiss,
more, I. § 250 ; Hall, § 34. I. §§ 124 and 131.
2 Claim of the United States in
296 STATE TERRITORY
that when the agent of a State takes possession of a

territory and makes a settlement on a certain spot of
it, he intends thereby to acquire a vast area by his
occupation. Everything depends, therefore, upan the
fact how far around the settlement or settlements the
established responsible authority that governs the terri-
tory in the name of the possessor succeeds in gradually
extending the established sovereignty. The payment
of a tribute on the part of tribes settled far away, the
fact that flying columns of the military or the police
sweep, when necessary, remote spots, and many other
facts, can show how far round the settlements the
possessor is really able to assert the established authority.
But it will always be difficult to mark exactly in this
way the boundary of an effective occupation, since
naturally the tendency prevails to extend the sway
constantly and gradually over a wider area. It is,
therefore, a well-known fact that disputes concerning
the boundaries of occupations can only rarely be decided
on the basis of strict law ; they must nearly always be
compromised, whether by a treaty or by arbitration.1
Protec- § 226. The growing desire to acquire vast territories
torateas
Precursor as colonies on, the part of .....
States unable at once to
ofoccupa- occupy effectively such territories has, in the second
half of the nineteenth century, led to the contracting
of agreements with the chiefs of natives inhabiting
unoccupied territories, by which these chiefs commit
themselves to the " protectorate " of States that are
members of the Family of Nations. These so-called
protectorates are certainly not protectorates in the
technical sense of the term designating the relation that
exists between a strong and a weak State through a
treaty by which the weak State surrenders itself into
the protection of the strong and transfers to the latter
1 The Institute of International occupations de territoires," corn-
Law, in 1887, at its meeting in prising ten articles ; see Annuaire,
Lausanne, Internationale
declaration adopted a " relatif
Projet aux
de X. p. 201.
OCCUPATION 297
the management of its more important international

relations.1 Neither can they be compared with the
protectorate of members of the Family of Nations exer-
cised over such non- Christian States as are outside
that family,2 because the respective chiefs of natives
are not the heads of States, but heads of tribal com-
munities only. Such agreements, although they are
named " Protectorates/' are nothing else than steps
taken to exclude other Powers from occupying the
respective territories. They give, like discovery, an
inchoate title, and are preparations and precursors of
future occupations.
§ 227. The uncertainty of the extent of an occupa- Spheres of
tion and the tendency of every colonising State to
extend its occupation constantly and gradually into
the interior, the " Hinterland/' of an occupied terri-
tory, has led several States which have colonies in
Africa to secure for themselves " spheres of influence "
by international treaties with other interested Powers.
Spheres of influence are therefore the names of such
territories as are exclusively reserved for future occu-
pation on the part of a Power which has effectively
occupied adjoining territories. In this way disputes
are avoided for the future, and the interested Powers
can gradually extend their sovereignty over vast terri-
tories without coming into conflict with other Powers.
Thus, to give some examples, Great Britain has con-
cluded treaties regarding spheres of influence with
Portugal3 in 1890, with Italy4 in 1891, with Germany5
in 1886 and 1890, and with France6 in 1898.7
1 See above, §§ 92 and 93. 7 Protectorates and Spheres of
2 See above, § 94. Influence are exhaustively treated
3 See Martens, N.K.G. 2nd Ser. in Hall, " Foreign Powers and Juris-
XVIII. p. 558. diction of the British Crown," §§
4 See Martens, N.R.G. 2nd Ser. 92-100 ; but Hall fails to distinguish
XVIII. p. 175. between protectorates over Eastern
5 See Martens, N.K.G. 2nd Ser. States and protectorates over native
XII. p. 298, and XVI. p. 895. tribes.
6 See Martens, N.R.G. 2nd Ser.
XXIX. p. 116.
298 STATE TERRITORY
conse- § 228. As soon as a territory is occupied by a member

of Ooo«8- of the Family of Nations, it comes within the sphere
pation. Of fae Law 0£ âtions, because it constitutes a portion
of the territory of a subject of International Law. No
other Power can acquire it hereafter through occupa-
tion, unless the present possessor has either intention-
ally withdrawn from it or has been successfully driven
away by the natives without making efforts, or without
capacity, to re-occupy it.1 On the other hand, the Power
which now exercises sovereignty over the occupied
territory is hereafter responsible for all events of inter-
national importance on the territory. Such Power has
in especial to keep up a certain order among the native
tribes in order to restrain them from acts of violence
against neighbouring territories, and has eventually to
punish them for such acts.
A question of some importance is how far occupation
affects private property of the inhabitants of the occu-
pied territory. As according to the modern conception
of State territory the latter is not identical with private
property of the State, occupation brings a territory
under the sovereignty only of the occupying State,
and therefore in no wise touches or affects existing
private property of the inhabitants. In the age of
the discoveries, occupation was indeed considered to
include a title to property over the whole occupied
land, but nowadays this can no longer be maintained.
Being now their sovereign, the occupying State may
impose any burdens it likes on its new subjects, and
may, therefore, even confiscate their private property ;
but occupation as a mode of acquiring territory does
not of itself touch or affect private property thereon.
If the Municipal Law of the occupying State does give
a title to private property over the whole occupied
land, such title is not based on International Law.
1 Sec below, § 247.
ACCRETION 299
XIV
ACCRETION
Grotius, II. c. 8, §§ 8-1(5— Hall, § 37— Lawrence, § 75— Phillimore, I. §§ 240-

241— Twiss, I. §§ 131 and 154— Moore, I. § 82— Bluntschli, §§ 294-295—
Hartmann, § 61— Heffter,§ 69— Holtzendorff in Holtzendorff, II. pp. 26(5-
268— Gareis, § 20— Liszt, § 10— Ullmann, § 92— Bonfils, No. 633— Despag-
net, No. 387— Pradier-Fod&e, II. Nos. 803-816— Rivier, I. pp. 179-180—
Nys, II. pp. 3-7— Calvo, I. § 266— Fiore, II. No. 852, and Code, Nos. 1068-
1070— Martens, I. § 90— Heimburger, " Der Erwerb der Gebietshoheit "
(1888), p. 107.
§ 229. Accretion is the name for the increase of land Concep-
through new formations. Such new formations may Accretion,
be a modification only of the existing State territory,
as, for instance, where an island rises within such river
or a part of it as is totally within the territory of one
and the same State ; and in such case there is no in-
crease of territory to correspond with the increase of
land. On the other hand, many new formations occur
which really do enlarge the territory of the State to
which they accrue, as, for instance, where an island rises
within the maritime belt. And it is a customary rule
of the Law of Nations that enlargement of territory, if
any, created through new formations, takes place ipso
facto by the accretion, without the State concerned
taking any special step for the purpose of extending its
sovereignty. Accretion must, therefore, be considered
as a mode of acquiring territory.
§ 230. New formations through accretion may be Different
artificial or natural. They are artificial if they are Accretion.
the outcome of human work. They are natural if
they are produced through operation of nature. And
within the circle of natural formations different kinds
must again be distinguished — namely, alluvions, deltas,
new-born islands, and abandoned river beds.
§ 231. Artificial formations are embankments, break- Artificial
waters, dykes, and the like, built along the river or the
coast-line of the sea. As such artificial new formations
300 STATE TERRITORY
along the bank of a boundary river may more or less

push the volume of water so far as to encroach upon
the other bank of the river, and as no State is allowed
to alter the natural condition of its own territory to
the disadvantage l of the natural conditions of a neigh-
bouring State territory, a State cannot build embank-
ments, and the like, of such kind without a previous
agreement with the neighbouring State. But every
State may construct such artificial formations as far
into the sea beyond the low-water mark as it likes, and
thereby gain considerably in land and also in territory,
since the extent of the at least three miles wide mari-
time belt is now to be measured from the extended shore.
Alluvions. § 232. AUuvion is the name for an accession of land
washed up on the sea-shore or on a river-bank by the
waters. Such accession is as a rule produced by a slow
and gradual process, but sometimes also through a
sudden act of violence, the stream detaching a portion
of the soil from one bank of a river, carrying it over
to the other bank, and embedding it there so as to be
immovable (avulsio). Through alluvions the land and
also the territory of a State may be considerably en-
larged. For, if the alluvion takes place on the shore,
the extent of the territorial maritime belt is now to be
measured from the extended shore. And, if the alluvion
takes place on the one bank of a boundary river, and the
course of the river is thereby naturally so altered that
the waters in consequence cover a part of the other
bank, the boundary line, which runs through the middle
or through the mid-channel,2 may thereby be extended
into former territory of the other riparian State.
Deltas. § 233. Similar to alluvions are Deltas. Delta is the
name for a tract of land at the mouth of a river shaped
like the Greek letter A, which land owes its existence
to a gradual deposit by the river of sand, stones, and
1 See above, § 127. a See above, § 199, No. 1.
ACCRETION 301
earth on one particular place at its mouth. As the

Deltas are continually increasing, the accession of land
they produce may be very considerable, and such
accession is, according to the Law of Nations, con-
sidered an accretion to the land of the State to whose
territory the mouth of the respective river belongs,
although the Delta may be formed outside the terri-
torial maritime belt. It is evident that in the latter
case an increase of territory is the result, since the at
least three miles wide maritime belt is now to be mea-
sured from the shore of the Delta.
§ 234. The same and other natural processes which
create alluvions on the shore and banks, and Deltas
at the mouths of rivers, lead to the birth of new islands.
If they rise on the High Seas outside the territorial mari-
time belt, they are no State's land, and may be acquired
through occupation on the part of any State. But if
they rise in rivers, lakes, and within the maritime belt,
they are, according to the Law of Nations, considered
accretions to the neighbouring land. It is for this
reason that such new islands in boundary rivers as rise
within the boundary line of one of the riparian States
accrue to the land of such State, and that, on the other
hand, such islands as rise upon the boundary line are
divided into parts by it, the respective parts accruing
to the land of the riparian States concerned. If an
island rises within the territorial maritime belt, it
accrues to the land of the littoral State, and the extent
of the maritime belt is now to be measured from the
shore of the new-born island.
An illustrative example is the case1 of the Anna.
In 1805, during war between Great Britain and Spain,
the British privateer Minerva captured the Spanish
vessel Anna near the mouth of the Eiver Mississippi.
When brought before the British Prize Court, the United
1 See 5 C. Rob. 373.
302 STATE TERRITORY
States claimed the captured vessel on the ground that

she was captured within the American territorial mari-
time belt. Lord Stowell gave judgment in favour of
this claim, because, although it appeared that the cap-
ture did actually take place more than three miles off
the coast of the continent, the place of capture was
within three miles of some small mud-islands composed
of earth and trees drifted down into the sea.
doned § ^^' ^ happens sometimes that a river abandons
itiver- its bed entirely or dries up altogether. If such river
was a boundary river, the abandoned bed is now the
natural boundary. But often the old boundary line
cannot be ascertained, and in such cases the boundary
line is considered to run through the middle of the
abandoned bed, and the portions ipso facto accrue to
the land of the riparian States, although the territory of
one of these States may become thereby enlarged, and
that of the other diminished.
XV
SUBJUGATION
Vattel, III. §§ 199-203— Hall, §§ 204-205— Lawrence, § 77— Halleck, II. pp.
467-498— Taylor, § 220— Walker, § 11— Wheaton, § 165— Moore, I. § 87—
Bluntschli, §§ 287-289, 701-702— Heffter, § 178— Liszt, § 10— Ullmann,
§§ 92 and 97— Bonfils, No. 535— Despagnet, Nos. 387-390— Rivier, I. pp.
181-182, II. 436-441— Nys, II. pp. 40-46— Calvo, V. § 3117, 3118— Fiore,
II. No. 863, III. No. 1693, and Code, Nos. 1078-1081— Martens, I. § 91—
Holtzendorfi, " Eroberung und Eroberungsrecht " (1871) — Heimburger,
" Der Erwerb der Gebietshoheit " (1888), pp. 121-132 — Westlake in The
Law Quarterly Review, XVII. (1901), p. 392.
Concep- § 236. Conquest is the taking possession of enemy

conquest territory through military force in time of war. Con-
sub'ifa- (luest al°ne d°es n°t ipso facto make the conquering
tion. State the sovereign of the conquered territory, although
such territory comes through conquest for the time
under the sway of the conqueror. Conquest is only a
SUBJUGATION 303
mode of acquisition if the conqueror, after having

firmly established the conquest, formally annexed the
territory. Such annexation makes the enemy State
cease to exist and thereby brings the war to an end.
And as such ending of war is named subjugation, it is
conquest followed by subjugation, and not conquest
alone, which gives a title and is a mode of acquiring
territory.1 It is, however, quite usual to speak of con-
quest as a title, and everybody knows that subjugation
after conquest is thereby meant. But it must be
specially mentioned that, if a belligerent conquers a
part of the enemy territory and makes afterwards the
vanquished State cede the conquered territory in the
treaty of peace, the mode of acquisition is not sub-
jugation but cession.2
1
§ 237. Some -1
writers3
£
maintain
A.'
that
"L
subjugation.1 is tion in
only a special case of occupation, because, as they contradis-
assert, through conquest the enemy territory becomes
no State's land and the conqueror can acquire it by tion-
turning his military occupation into absolute occupa-
tion. Yet this opinion cannot be upheld, because mili-
tary occupation, which is conquest, in no way makes
enemy territory no State's land. Conquered enemy
territory, although actually in possession and under the
sway of the conqueror, remains legally under the sove-
reignty ofthe enemy until through annexation it comes
under the sovereignty of the conqueror. Annexation
turns the conquest into subjugation. It is the very
annexation which uno actu makes the vanquished State
cease to exist and brings the territory under the con-
queror's sovereignty. Thus the subjugated territory
has not for one moment been no State's land, but comes
from the enemy's into the conqueror's sovereignty,
although not through cession, but through annexation.
1 Concerning the distinction be- 2 See above, §§ 216 and 219.
tween conquest and subjugation, 3 Holtzendorff, II. p. 255 ; Heim-
see below, vol. II. § 264. burger, p. 128 ; Salomon, p. 24.
304 STATE TERRITORY
justifica- § 238. As long as a Law of Nations has been in

subjuga- existence, the States as well as the vast majority of
Mode 0? waters have recognised subjugation as a mode of
Acquisi- acquiring territory. Its justification lies in the fact
that war is a contention between States for the purpose
of overpowering one another. States which go to war
know beforehand that they risk more or less their very
existence, and that it may be a necessity for the victor
to annex the conquered enemy territory, be it in the
interest of national unity or of safety against further
attacks, or for other reasons. One must hope that the
time will come when war will disappear entirely, but, as
long as war exists, subjugation will also be recognised.
If some writers l refuse to recognise subjugation at all
as a mode of acquiring territory, they show a lack of
insight into the historical development of States and
nations.2
Subjuga-
tion of the
§,1239. Subjugation
•• ,
is as
•,
a rule
rm
a mode
j_ i
of acquir-
whole or mg the entire enemy territory. Ihe actual process is
of Enemy regularty that the victor destroys the enemy military
Territory, forces, takes possession of the enemy territory, and then
annexes it, although the head and the Government of
the extinguished State might have fled, might protest,
and still keep up a claim. Thus after the war with
Austria and her allies in 1866, Prussia subjugated the
territories of the Duchy of Nassau, the Kingdom of
Hanover, the Electorate of Hesse-Cassel, and the Free
Town of Frankfort-on-the-Maine ; and Great Britain
subjugated in 1900 the territories of the Orange Free
State and the South African Eepublic.
But it is possible, although it will nowadays hardly
occur, for a State to conquer and annex a part of enemy
territory, whether the war ends by a Treaty of Peace
1 Bonfils, No. 535 ; Fiore, II. No. ton, 1890, passed a resolution that
863, III. No. 1G93, and Code N. conquest should hereafter not be a
See also Despagnet, Nos. 387-390. mode of acquisition of territory in
2 It should be mentioned that the America ; see Moore, I. § 87.
Pan-American Congress at Washing-
SUBJUGATION 305
in which the vanquished State, without ceding the

conquered territory, submits silently * to the annexa-
tion, or by simple cessation of hostilities.2
It must, however, be emphasised that such a mode
of acquiring a part of enemy territory is totally different
from forcibly taking possession of a part thereof during
the continuance of war. Such a conquest, although the
conqueror may intend to keep the conquered territory
and therefore annex it, is not a title as long as the war
has not terminated either actually through simple ces-
sation of hostilities or through a Treaty of Peace.
Therefore, the practice, which sometimes prevails, of
annexing a conquered part of enemy territory during
war cannot be approved. Concerning subjugation either
of the whole or of a part of enemy territory, it must be
asserted that annexation gives a title only after a
firmly established conquest. So long as war continues,
conquest is not firmly established.3
§ 240. Although subjugation is an original mode of conse
acquisition, since the sovereignty of the new acquirer
is not derived from that of the former owner State, the tion-
new owner State is nevertheless the successor of the
former owner State as regards many points which have
been discussed above (§ 82). It must be specially men-
tioned that, as far as the Law of Nations is concerned,
the subjugator does not acquire the private property
of the inhabitants of the annexed territory. Being
now their Sovereign, the subjugating State may indeed
impose any burdens it pleases on its new subjects, it
may even confiscate their private property, since a
Sovereign State can do what it likes with its subjects,
but subjugation itself does not by International Law
touch or affect private property.
1 See below, vol. II. § 273. termination of real war. Many
2 See below, vol. II. § 263. writers, however, deny that a
3 See below, vol. II. § 60, con- conquest is firmly established as
cerning guerilla war after the long as guerilla war is going on.
VOL. I. U
306 STATE TERRITORY
As regards the national status of the subjects of

the subjugated State, doctrine and practice agree that
such enemy subjects as are domiciled on the annexed
territory and remain there after annexation become
ipso facto by the subjugation l subjects of the subju-
gator. But the national status of such enemy subjects
as are domiciled abroad and do not return, and further
of such as leave the country before the annexation or
immediately afterwards, is matter of dispute. Some
writers maintain that these individuals do in spite of
their absence become subjects of the subjugator, others
emphatically deny it. Whereas the practice of the
United States of America seems to be in conformity
with the latter opinion,2 the practice of Prussia in 1866
was in conformity with the former. Thus in the case
of Count Platen-Hallermund, a Cabinet Minister of
King George V. of Hanover, who left Hanover with his
King before the annexation in 1866 and was in 1868
prosecuted for high treason before the Supreme Prussian
Court at Berlin, this Court decided that the accused had
become a Prussian subject through the annexation of
Hanover.3 I believe that a distinction must be made
between those individuals who leave the country before
and those who leave it after annexation. The former
are not under the sway of the subjugator at the time
of annexation, and, since the personal supremacy of
their home State terminates with the latter's extinction
through annexation, they would seem to be outside the
sovereignty of the subjugator. But those individuals
who leave the country after annexation leave it at a
1 See Hall v. Campbell (1774), 1 3 See Halleck, II. p. 476, on the
Cowper 1208, and United States v. one hand, and, on the other, Rivier,
Repentigny (1866), 5 Wallace, 211. II. p. 436. Valuable opinions of
The case is similar to that of Zachariae and Neumann, who deny
cession : see above, § 219 ; Keith, that Count Platen was a Prussian
"The Theory of State Succession" subject, are printed in the" Peutsche
(1907), pp. 45 and 48; Moore, III. Strafrechts-Zeitung" (1868), pp. 304-
§ 379. 320.
8 See Halleck, II. p. 476.
SUBJUGATION 307
time when they have become subjects of the new Sove-

reign, and they therefore remain such subjects even
after they have left the country, for there is no rule of
the Law of Nations in existence which obliges a sub-
jugator to grant the privilege of emigration l to the
inhabitants of the conquered territory.
Different from the fact that enemy subjects become
through annexation subjects of the subjugator is the
question what position they acquire within the subju-
gating State. This question is one of Municipal, and
not of International Law. The subjugator can, if he
likes, allow them to emigrate and to renounce their
newly acquired citizenship, and the Municipal Law of
the subjugating State can put them in any position it
likes, can in especial grant or refuse them the same
rights as those which its citizens by birth enjoy.
§ 241. Although subjugation is an original mode of Veto of
acquiring territory and no third Power has as a rule 2 a Powers,
right of intervention, the conqueror has not in fact an
unlimited possibility of annexation of the territory of
the vanquished State. When the balance of power is
endangered or when other vital interests are at stake,
third Powers can and will intervene, and history records
many instances of such interventions. But it must be
emphasised that the validity of the title of the sub-
jugator does not depend upon recognition on the part
of other Powers. And a mere protest of a third Power
is of no legal weight either.
1 Both Westlake and Halleck state 2 But this rule has exceptions, as in
that the inhabitants must have a free the case of a State whose indepen-
option to 'stay or leave the country ; dence and integrity have been guar-
but'i there is no rule of International anteed by one or more Powers.
Law which imposes the duty upon a
subjugator to grant this option.
308 STATE TERRITORY
XVI
PRESCRIPTION
Grotius, II. c. 4— Vattel, I. §§ 140-151— Hall, § 36— Westlake, I. pp. 92-94

—Lawrence, § 78— Phillimore, I. §§ 251-261— Twiss, I. § 129— Taylor,
§§ 218-219— Walker, § 13— Wheaton, § 164— Moore, I. § 88— Bluntschli,
§ 290— Hartmann, § 61— Heffter, § 12— Holtzendorff in Holtzendorff, II. p.
255— Ullmann, § 92— Bonfils, No. 534— Merignhac, II. p. 412— Despagnet,
No. 380— Pradier-Fodere, II. Nos. 820-829— Rivier, I. pp. 182-184— Nys,
II. pp. 34-39— Calvo, I. §§ 264-265— Fiore, II. Nos. 850-851, and Code,
Nos. 1074-1077— Martens, I. § 90— G. F. Martens, §§ 70-71— Bynkershoek,
" Quaestiones juris publici," IV. c. 12 — Heimburger, " Der Erwerb der
Gebietshoheit
144. " (1888), pp. 140-155— Ralston in A.J. IV. (1910), pp. l:j:j-
Concep- § 242. Since the existence of a science of the Law

Prescrip- of Nations there has always been opposition to pre-
scription as a mode of acquiring territory. Grotius
rejected the usucaption of the Roman Law, yet adopted
the same law's immemorial prescription 1 for the Law
of Nations. But whereas a good many writers 2 still
defend that standpoint, others 3 reject prescription
altogether. Again, others 4 go beyond Grotius and his
followers and do not require possession from time im-
memorial, but teach that an undisturbed continuous
possession can under certain conditions produce a title
for the possessor, if the possession has lasted for some
length of time.
This opinion would indeed seem to be correct, be-
cause it recognises theoretically what actually goes on
in practice. There is no doubt that in the practice of
the members of the Family of Nations a State is con-
sidered to be the lawful owner even of those parts of
its territory of which originally it took possession wrong-
fully and unlawfully, provided only the possessor has
1 See Grotius, II. c. 4, §§ 1, 7, 9. * Vattel, II. § 147 ; Wheaton, §
2 See, for instance, Heffter, § 12 ; 165 ; Phillimore, I. § 259 ; Hall. § 36 ;
Martens, § 90. Bluntschli, § 290 ; Pradier-Foderd, II.
8 G. F. Martens, §71; Kliiber, No. 825 ; Bonfils, No. 534, and many
§§ 6 and 125 ; Holtzendorff, II. p. others.
255 ; Ullmann, § 92.
PRESCRIPTION 309
been in undisturbed possession for such a length of

time as is necessary to create the general conviction
among the members of the Family of Nations that the
present condition of things is in conformity with inter-
national order. Such prescription cannot be compared
with the usucaption of Roman Law because the latter
required bona-jftde possession, whereas the Law of
Nations recognises prescription both in cases where
the State is in bona-fde possession and in cases where
it is not. The basis of prescription in International
Law is nothing else than general recognition l of a fact,
however unlawful in its origin, on the part of the mem-
bers of the Family of Nations. And prescription in
International Law may therefore be defined as the
acquisition of sovereignty over a territory through con-
tinuous and undisturbed exercise of sovereignty over it
during such a period as is necessary to create under the
influence of historical development the general conviction
that the present condition of things is in conformity with
international order. Thus, prescription in International
Law has the same rational basis as prescription in
Municipal Law — namely, the creation of stability of
order.
§ 243. From the conception of prescription, as above prescrip-
defined, it becomes apparent that no general rule can
be laid down as regards the length of time and other
circumstances which are necessary to create a title by
prescription. Everything depends upon the merits of
the individual case. As long as other Powers keep up
protests and claims, the actual exercise of sovereignty
is not undisturbed, nor is there the required general
conviction that the present condition of things is in
conformity with international order. But after such
1 This is pointed out with great a customary rule of International
lucidity by Heimburger, pp. 151- Law in existence according to which
155 ; he rejects, however, pre- recognition can make good originally
scription as a mode of acquiring wrongful possession,
territory, maintaining that there is
310 STATE TERRITORY
protests and claims, if any, cease to be repeated, the

actual possession ceases to be disturbed, and thus under
certain circumstances matters may gradually ripen into
that condition which is in conformity with international
order. The question, at what time and under what
circumstances such a condition of things arises, is not
one of law but of fact. The question, for instance,
whether, although the three partitions of Poland were
wrongful and unlawful acts, Prussia, Austria, and
Eussia have now a good title by prescription to hold
territories which were formerly Polish must, I doubt
not, be answered in the affirmative. For all the mem-
bers of the Family of Nations have now silently acqui-
esced in the present condition of things, although as
late as 1846 Great Britain and France protested against
the annexation of the Eepublic of Cracow on the part of
Austria. In spite of the fact that the Polish nation
has not yet given up its hope of seeing a Polish
State re-established on the former Polish territory, the
general conviction among the members of the Family
of Nations is that the present condition of things is
in conformity with international order. When, to give
another example, a State which originally held an island
mala fide under the title by occupation, knowing well
that this land had already been occupied by another
State, has succeeded in keeping up its possession un-
disturbed for so long a time that the former possessor
has ceased to protest and has silently dropped the
claim, the conviction will be prevalent among the mem-
bers of the Family of Nations that the present condition
of things is in conformity with international order.
These examples show why a certain number of years ]
1 Vattel (II. § 151) suggests that following rule (52) in his Outlines of
the members of the Family of an International Code: "The unin-
Nations should enter into an agree- terrupted possession of territory or
ment stipulating the number of other property for fifty years by a
years necessary for prescription, and nation excludes the claim of every
David Dudley Field proposes the other nation."
LOSS OF STATE TERRITORY 311
cannot, once for all, be fixed to create the title by pre-

scription. There are indeed immeasurable and im-
ponderable circumstances and influences besides the
mere run of time l at work to create the conviction on
the part of the members of the Family of Nations that
in the interest of stability of order the present possessor
should be considered the rightful owner of a territory.
And these circumstances and influences, which are of
a political and historical character, differ so much in
the different cases that the length of time necessary
for prescription must likewise differ.
XVII
LOSS OF STATE TERRITORY
Hall, § 34— Phillimore, I. §§ 284-295— Moore, I. §§ 89 and 90— Holtzendorff

in Holtzendorflf, II. pp. 274-279— Gareis, § 70— Liszt, § 10— Ullmann,
§ 101— Pradier-Fodere, II. Nos. 850-852— Rivier, I. § 13— Fiore, II.
No. 865— Martens, I. § 92.
§ 244. To the five modes of acquiring sovereignty six modes

over territory correspond five modes of losing it— state ing
namely, cession, dereliction, operation of nature, sub- Terntory-
jugation, prescription. But there is a sixth mode of
losing territory — namely, revolt. No special details are
necessary with regard to loss of territory through sub-
jugation, prescription, and cession, except that it is of
some importance to repeat here that the historical cases
of pledging, leasing, and giving territory to another
State to administer are in fact, although not in strict
law, nothing else than cessions 2 of territory. But
operation of nature, revolt, and dereliction must be
specially discussed.
1 Heffter's
dert (§ 12) dictum,
Jahre Unrecht ist noch "Hun- but the and
kein stances co-operation
influencesof which
other circum-
creates
Tag Recht " is met by the fact that the title by prescription,
it is not the operation of time alone, 2 See above, §§ 171 and 216.
312 STATE TERRITORY
operation
of Nature.. § 245.
^ Operation . .of nature ,as a .
mode ,of. losing corre-
sponds to accretion as a mode of acquiring territory.
Just as through accretion a State may become enlarged,
so it may become diminished through the disappearance
of land and other operations of nature. And the loss
of territory through operation of nature takes place
ipso facto by such operation. Thus, if an island near
the shore disappears through volcanic action, the extent
of the maritime territorial belt of the respective littoral
State is hereafter to be measured from the low-water
mark of the shore of the continent, instead of from the
shore of the former island. Thus, further, if through a
piece of land being detached by the current of a river
from one bank and carried over to the other bank, the
river alters its course and covers now part of the land
on the bank from which such piece became detached,
the territory of one of the riparian States may decrease
through the boundary line being ipso facto transferred
to the present middle or mid-channel of the river.
Revolt. § 246. Revolt followed by secession is a mode of
losing territory to which no mode of acquisition corre-
sponds.1 Revolt followed by secession has, as history
teaches, frequently been a cause of loss of territory.
Thus the Netherlands fell away from Spain in 1579,
Belgium from the Netherlands in 1830, the United States
of America from Great Britain in 1776, Brazil from
Portugal in 1822, the former Spanish South American
States from Spain in 1810, Greece from Turkey in 1830,
Cuba from Spain in 1898, Panama from Colombia in
1903. The question at what time a loss of territory
through revolt is consummated cannot be answered
once for all, since no hard-and-fast rule can be laid
down regarding the time when it can be said that a
1 The possible case where a pro- conquer it, unites itself with the
vince revolts, secedes from the territory of another State, is a case
mother country, and, after having of merger by cession of the whole
successfully defended itself against territory,
the attempts of the latter to re-
LOSS OF STATE TERRITORY 313
State broken off from another has established itself

safely and permanently. The matter has, as will be
remembered, been treated above (§ 74), in connection
with recognition. It may well happen that, although
such a seceded State is already recognised by a third
Power, the mother country does not consider the terri-
tory to be lost and succeeds in reconquering it.
§ 247. Dereliction as a mode of losing corresponds tion.
to occupation as a mode of acquiring territory. Dere-
liction frees a territory from the sovereignty of the
present owner State. Dereliction is effected through
the owner State's complete abandonment of the terri-
tory with the intention of withdrawing from it for ever,
thus relinquishing sovereignty over it. Just as occu-
pationrequires,
l first, the actual taking into possession
(corpus) of territory and, secondly, the intention (animus)
to acquire sovereignty over it, so dereliction requires,
first, actual abandonment of a territory, and, secondly,
the intention to give up sovereignty over it. Actual
abandonment alone does not involve dereliction as long
as it must be presumed that the owner has the will and
ability to retake possession of the territory. Thus, for
instance, if the rising of natives forces a State to with-
draw from a territory, such territory is not derelict as
long as the former possessor is able and makes efforts
to retake possession. It is only when a territory is
really derelict that any State may acquire it through
occupation.2 History knows of several such cases.
But very often, when such occupation of derelict terri-
tory occurs, the former owner protests and tries to
prevent the new occupier from acquiring it. The cases
of the island of Santa Lucia and of the Delagoa Bay
may be quoted as illustrations :—
(a) In 1639 Santa Lucia, one of the Antilles Islands,
was occupied by England, but in the following year
1 See above, § 222. 2 See above, § 228.
314 STATE TERRITORY
the English settlers were massacred by the natives.

No attempt was made by England to retake the island,
and France, considering it no man's land, took posses-
sion of it in 1650. In 1664 an English force under
Lord Willoughby attacked the French, drove them into
the mountains, and held the island until 1667, when
the English withdrew and the French returned from
the mountains. No further step was made by England
to retake the island, but she nevertheless asserted for
many years to come that she had not abandoned it
sine spe redeundi, and that, therefore, France in 1650
had no right to consider it no man's land. Finally,
however, England resigned her claims by the Peace
Treaty of Paris of 1763.1
(b) In 1823 England occupied, in consequence of a
so-called cession from native chiefs, a piece of territory
at Delagoa Bay, which Portugal claimed as part of the
territory owned by her at the bay, maintaining that
the chiefs concerned were rebels. The dispute was not
settled until 1875, when the case was submitted to
the arbitration of the President of France. The award
was given in favour of Portugal, since the interruption
of the Portuguese occupation in 1823 was not to be
considered as abandonment of a territory over which
Portugal had exercised sovereignty for nearly three
hundred years.2
1 See Hall, § 34, and Moore, I. 2 See Hall, § 34. The text of the
§ 89. award is printed in Moore, " Arbitra-
tions," V. p. 4984.
CHAPTER II
THE OPEN SEA
I
EISE OF THE FREEDOM OF THE OPEN SEA
Grotius, II. c. 2, § 3— Pufendorf, IV. c. 5, § 5— Vattel, I. §§ 279-286— Hall,

§ 40— Wesfclake, I. pp. 161-162— Phillimore, I. §§ 172-179— Taylor, §§ 242-
246— Walker, Science, pp. 163-171— Wheaton, §§ 186-187— Hartmann,
§ 64— Heffter, § 73— Stoerk in Holtzendorff, II. pp. 483-490— Bonfils, Nos.
573-576— Despagnet, No. 401— Pradier-Fodere, II. Nos. 871-874— Nys,
II. pp. 132-139— Merignhac, II. pp. 498-505— Calvo, I. §§ 347-352—
Fiore, II. Nos. 718-726— Martens, I. § 97— Perels, § 4— Azuni, " Diritto
maritime " (1796), 1, c. I. Article III. — Cauchy, " Le droit maritime
international conside're dans ses origines," 2 vols. (1862) — Nys, " Les
origines du droit international" (1894), pp. 377-388— Castel, " Du
principe de la liberte des mers" (1900), pp. 1-15— Fulton, "The
Sovereignty of the Seas" (1911), pp. 1-56.
§ 248. In antiquity and the first half of the Middle Former

Ages navigation on the Open Sea was free to everybody, control
According to Ulpianus,1 the sea is open to everybody sg®rthe
by nature, and, according to Celsus,2 the sea, like the
air, is common to all mankind. Since no Law of Nations
in the modern sense of the term existed during anti-
quity and the greater part of the Middle Ages, no im-
portance isto be attached to the pronouncement of
Antoninus Pius, Roman Emperor from 138 to 161 :—
" Being 3 the Emperor of the world, I am consequently
the law of the sea." Nor is it of importance that the
Emperors of the old German Empire, who were con-
sidered to be the successors of the Roman Emperors,
styled themselves among other titles " King of the
1 L. 13, pr. D. VIII. 4 : mari quod munem usum omnibus hominibus ut
natura omnibus patet. aeris.
2 L. 3 D. XLIII. 8: Maris com- 3 L. 9 D. XIV. 2: 4yb tfv rov
KOfffjLQV KVplOS, 6 3£ VO/J.OS TTJS 8a\dffffT]S.
315
316 THE OPEN SEA
Ocean." Keal claims to sovereignty over parts of the

Open Sea begin, however, to be made in the second
half of the Middle Ages. And there is no doubt what-
ever that at the time when the modern Law of Nations
gradually rose it was the conviction of the States that
they could extend their sovereignty over certain parts
of the Open Sea. Thus, the Republic of Venice was
recognised as the Sovereign over the Adriatic Sea, and
the Republic of Genoa as the Sovereign of the Ligurian
Sea. Portugal claimed sovereignty over the whole of
the Indian Ocean and of the Atlantic south of Morocco,
Spain over the Pacific and the Gulf of Mexico, both
Portugal and Spain basing their claims on two Papal
Bulls promulgated by Alexander VI. in 1493, which
divided the new world between these Powers. Sweden
and Denmark claimed sovereignty over the Baltic,
Great Britain over the Narrow Seas, the North Sea,
and the Atlantic from the North Cape to Cape Finis-
terre.
These claims have been more or less successfully
asserted for several hundreds of years. They were
favoured by a number of different circumstances, such
as the maintenance of an effective protection against
piracy for instance. And numerous examples can be
adduced which show that such claims have more or
less been recognised. Thus, Frederick III., Emperor
of Germany, had in 1478 to ask the permission of Venice
for a transportation of corn from Apulia through the
Adriatic Sea.1 Thus, Great Britain in the seventeenth
century compelled foreigners to take out an English
licence for fishing in the North Sea ; and when in 1636
the Dutch attempted to fish without such licence, they
were attacked and compelled to pay £30,000 as the
price for the indulgence.2 Again, when Philip II. of
1 See Walker, " History," I. p. 163. 2 This and the two following ex-
amples are quoted by Hall, § 40.
RISE OF THE FREEDOM OF THE OPEN SEA 317
Spain was in 1554 on his way to England to marry

Queen Mary, the British Admiral, who met him in the
" British Seas," fired on his ship for flying the Spanish
flag. And the King of Denmark, when returning from
a visit to James I. in 1606, was forced by a British
captain, who met him off the mouth of the Thames, to
strike the Danish flag.
§ 249. Maritime sovereignty found expression in practical
maritime ceremonials at least. Such State as claimed
sovereignty over a part of the Open Sea required
foreign vessels navigating on that part to honour its Sove-
flag l as a symbol of recognition of its sovereignty.
So late as 1805 the British Admiralty Regulations
contained an order 2 to the effect that " when any of
His Majesty's ships shall meet with the ships of any
foreign Power within His Majesty's Seas (which extend
to Cape Finisterre), it is expected that the said foreign
ships do strike their topsail and take in their flag, in
acknowledgment of His Majesty's sovereignty in those
seas ; and if any do resist, all flag officers and com-
manders are to use their utmost endeavours to compel
them thereto, and not suffer any dishonour to be done
to His Majesty."
But apart from maritime ceremonials maritime sove-
reignty found expression in the levying of tolls from
foreign ships, in the interdiction of fisheries to foreigners,
and in the control or even the prohibition of foreign
navigation. Thus, Portugal and Spain attempted, after
the discovery of America, to keep foreign vessels alto-
gether out of the seas over which they claimed sove-
reignty. The magnitude of this claim created an
opposition to the very existence of such rights. English,
French, and Dutch explorers and traders navigated on
the Indian Ocean and the Pacific in spite of the Spanish
1 See Fulton, "The Sovereignty of 2 Quoted by Hall, § 40.
the Seas" (1911), pp. 38 and 204-208.
318 THE OPEN SEA /-
and Portuguese interdictions. And when, in 1^80,

the Spanish ambassador Mendoza lodged a complaint
with Queen Elizabeth against Drake for having made
his famous voyage to the Pacific, Elizabeth answered
that vessels of all nations could navigate on the Pacific,
since the use of the sea and the air is common to all,
and that no title to the ocean can belong to any nation,
since neither nature nor regard for the public use
permits any possession of the ocean.1
§ 250. Queen Elizabeth's attitude was the germ out
Maritime11 of which grew gradually the present freedom of the
' Open Sea. Twenty-nine years after her answer to
Mendoza, in 1609, appeared Grotius's short treatise 2
;f Mare liberum." The intention of Grotius was to
show that the Dutch had a right of navigation and
commerce with the Indies in spite of the Portuguese
interdictions. He contends that the sea cannot be
State property, because it cannot really be taken into
possession through occupation,3 and that consequently
the sea is by nature free from the sovereignty of any
State.4 The attack of Grotius was met by several
authors of different nations. Gentilis defends Spanish
and English claims in his " Advocatio Hispanica,"
which appeared in 1613. Likewise, in 1613 William
Welwood defends the English claims in his book, " De
dominio maris." John Selden wrote his " Mare Clau-
1 See Walker, " History," I. p. 161. a Its full title is : " Mare liberum,
It is obvious that this attitude of seu de jure quod Batavis competit ad
Queen Elizabeth was in no way the Indicana commercia Dissertatio,"
outcome of the conviction that really and it is now proved that this short
no State could claim sovereignty over treatise is only chapter 12 of another
a part of the Open Sea. For she work of Grotius, " De jure praedae,"
herself did not think of dropping which was found in manuscript in
the British claims to sovereignty 1864 and published in 1868. See
over the "British Seas." Her argu- above, § 53.
ments against the Spanish claims 3 See below, § 259.
were made in the interest of the * Grotius was by no means the
growing commerce and navigation first author who defended the
of England, and any one daring to freedom of the sea. See Nys, " Les
apply the same arguments against origines du droit international," pp.
England's claims would have incurred 381 and 382.
her royal displeasure.
RISE OF THE FREEDOM OF THE OPEN SEA 319
sum sive de dominio maris " in 1618, but it was not

printed until 1635. Sir John Burroughs published in
1653 his book, " The Sovereignty of the British Seas
proved by Records, History, and the Municipal Laws
of this Kingdom." And in defence of the claims of
the Republic of Venice Paolo Sarpi published in 1676
his book " Del dominio del mare Adriatico." The
most important of these books defending maritime
sovereignty is that of Selden. King Charles I., by
whose command Selden's " Mare Clausum " was printed
in 1635, was so much impressed by it that he instructed
in 1619 his ambassador in the Netherlands to complain
of the audacity of Grotius and to request that the
author of the " Mare liberum " should be punished.1
The general opposition to Grotius's bold attack on
maritime sovereignty prevented his immediate victory.
Too firmly established were the then recognised claims
to sovereignty over certain parts of the Open Sea for
the novel principle of the freedom of the sea to supplant
them. Progress was made regarding one point only—
namely, freedom of navigation of the sea. England
had never pushed her claims so far as to attempt the
prohibition of free navigation on the so-called British
Seas. And although Venice succeeded in keeping up
her control of navigation on the Adriatic till the middle
of the seventeenth century, it may be said that in the
second half of that century navigation on all parts of
the Open Sea was practically free for vessels of all
nations. But with regard to other points, claims to
maritime sovereignty continued to be kept up. Thus
the Netherlands had by article 4 of the Treaty of West-
minster, 1674, to acknowledge that their vessels had
to salute the British flag within the " British Seas "
as a recognition of British maritime sovereignty.2
§ 251. In spite of opposition, the work of Grotius
1 See Phillimore, I. § 182. 2 See Hall, § 40, p. 152, note 1.
320 THE OPEN SEA
tionofthe was not to be undone. All prominent writers of the

ofrthe m eighteenth century take up again the case of the free-
Open Sea. ciom of the Open Sea, making a distinction between
the maritime belt which is to be considered under the
sway of the littoral States, and, on the other hand,
the High Seas, which are under no State's sovereignty.
The leading author is Bynkershoek, whose standard
work, " De dominio maris," appeared in 1702. Vattel,
G. F. de Martens, Azuni, and others follow the lead.
And although Great Britain upheld her claim to the
salute due to her flag within the " British Seas " through-
out the eighteenth and at the beginning of the nine-
teenth century, the principle of the freedom of the Open
Sea became more and more vigorous with the growth
of the navies of other States ; and at the end of the
first quarter of the nineteenth century this principle
became universally recognised in theory and practice.
Great Britain silently dropped her claim to the salute
due to her flag, and with it her claim to maritime sove-
reignty, and became now a champion of the freedom
of the Open Sea. When, in 1821, Eussia, who was
then still the owner of Alaska in North America, at-
tempted to prohibit all foreign ships from approaching
the shore of Alaska within one hundred Italian miles,
Great Britain and the United States protested in the
interest of the freedom of the Open Sea, and Russia
dropped her claims in conventions concluded with the
protesting Powers in 1824 and 1825. And when, after
Eussia had sold Alaska in 1867 to the United States,
the latter made regulations regarding the killing of
seals within Behring Sea, claiming thereby jurisdiction
and control over a part of the Open Sea, a conflict arose
in 1886 with Great Britain, which was settled by arbitra-
tion lin 1893 in favour of the freedom of the Open Sea.
CONCEPTION OF THE OPEN SEA 321
II
CONCEPTION OF THE OPEN SEA
Field, article 53— Westlake, I. p. 160— Moore, II. § 308— Rivier, I. pp. 234-
235—
dorfi, Pradier-Fodere",
II. p. 483. II. No. 868— Ullmann, § 101— Stoerk in Holtzen-
§ 252. Open Sea or High Seas l is the coherent

body of salt water all over the greater part of the globe,
with the exception of the maritime belt and the terri-
torial straits, gulfs, and bays, which are parts of the toriai
sea, but not parts of the Open Sea. Wherever there is ^
a salt-water sea on the globe, it is part of the Open Sea,
provided it is not isolated from, but coherent with, the
general body of salt water extending over the globe,
and provided that the salt water approach to it is
navigable and open to vessels of all nations. The en-
closure ofa sea by the land of one and the same State
does not matter, provided such a navigable connection
of salt water as is open to vessels of all nations exists
between such sea and the general body of salt water,
even if that navigable connection itself be part of
the territory of one or more littoral States. Whereas,
therefore, the Dead Sea is Turkish and the Aral Sea
is Eussian territory, the Sea of Marmora is part of
the Open Sea, although it is surrounded by Turkish
land and although the Bosphorus and the Dardanelles
are Turkish territorial straits, because these are now
open to merchantmen of all nations. For the same
reason the Black Sea 2 is now part of the Open Sea.
On the other hand, the Sea of Azof! is not part of the
Open Sea, but Russian territory, although there exists
a navigable connection between it and the Black Sea.
The reason is that this connection, the Strait of Kertch,
1 Field defines in article 53 : " The territorial limits of any nation what-
High Seas are the ocean, and all ever."
connecting thereof
extensions arms andnotbayswithin
or other
the a See above, § 181.
VOL. I. X
322 THE OPEN SEA
is not according to the Law of Nations open to vessels

of all nations, since the Sea of AzofE is less a sea than
a mere gulf of the Black Sea.1
clear in- § 253. It is not necessary and not possible to par-
° ticularise every portion of the Open Sea. It is sufficient
Sea°pen ^° state instances which clearly indicate the extent of
the Open Sea. To the Open Sea belong, of course, all
the so-called oceans — namely, the Atlantic, Pacific,
Indian, Arctic, and Antarctic. But the branches of the
oceans, which go under special names, and, further, the
branches of these branches, which again go under special
names, belong likewise to the Open Sea. Examples of
these branches are : the North Sea, the English Channel,
and the Irish Sea ; the Baltic Sea, the Gulf of Bothnia,
the Gulf of Finland, the Kara Sea,2 and the White Sea ;
the Mediterranean and the Ligurian, Tyrrhenian, Adri-
atic, Ionian, Marmora, and Black Seas ; the Gulf of
Guinea ; the Mozambique Channel ; the Arabian Sea
and the Red Sea ; the Bay of Bengal, the China Sea,
the Gulf of Siam, and the Gulf of Tonking ; the Eastern
Sea, the Yellow Sea, the Sea of Japan, and the Sea of
Okhotsk ; the Behring Sea ; the Gulf of Mexico and the
Caribbean Sea ; Baffin's Bay.
It will be remembered that it is doubtful as regards
many gulfs and bays whether they belong to the Open
Sea or are territorial.3
1 So say Rivier, I. p. 237, and publicists that the Kara Sea is
Martens, I. § 97 : but Stoerk in Russian territory is refuted by
Holtzendorff, II. p. 513, declares that Martens, I. § 97. As regards the
the Sea of AzofE is part of the Kara Straits, see above, § 194.
Open Sea. 3 See above, § 191.
2 The assertion of some Russian
THE FREEDOM OF THE OPEN SEA 323
III
THE FREEDOM OF THE OPEN SEA
Hall, § 75— Westlake, I. pp. 160-166— Lawrence, § 100— Twiss, I. §§ 172-173

—Moore, II. §§ 309-310— Taylor, § 242— Wheaton, § 187— Bluntschli,
§§ 304-308— Heffter, § 94— Stoerk in Holtzendorff, II. pp. 483-498—
Ullmann, § 101— Bonfils, Nos. 572-577— Pradier-Fodere, II. Nos. 874-881
— Rivier, I. § 17— Nys, II. pp. 140-166— Calvo, I. § 346— Fiore, II. Nos.
724, 727, and Code, Nos. 928-930— Martens, I. § 97— Perels, § 4— Testa,
pp. 63-66- Ortolan, " Diplomatic de la mer" (1856), I. pp. 119-149—
De Burgh, " Elements of Maritime International Law " (1868), pp. 1-24
— Castel, " Du principe de la liberte des mers " (1900), pp. 37-80.
§ 254. The term " Freedom of the Open Sea " indi- Meaning
cates the rule of the Law of Nations that the Open Sea Term3
is not and never can be under the sovereignty of any o
State whatever. Since, therefore, the Open Sea is not °Paen,
the territory of any State, no State has as a rule a right
to exercise its legislation, administration, jurisdiction,1
or police 2 over parts of the Open Sea. Since, further,
the Open Sea can never be under the sovereignty of any
State, no State has a right to acquire parts of the Open
Sea through occupation,3 for, as far as the acquisition
of territory is concerned, the Open Sea is what Roman
Law calls res extra commercium* But although the
Open Sea is not the territory of any State, it is never-
theless an object of the Law of Nations. The very fact
alone of such a rule exempting the Open Sea from the
sovereignty of any State whatever shows this. But
there are other reasons. For if the Law of Nations
1 As regards jurisdiction in cases And some French writers go even
of collision and salvage on the Open beyond that and claim a certain zone
Sea, see below, §§ 265 and 271. round the respective vessel as tem-
2 See, however, above, § 190, con- porary territory of the flag State,
cerning the zone for Revenue and But this is an absolutely superfluous
Sanitary Laws. fiction. (See Stoerk in Holtzendorff,
3 Following Grotius (II. c. 3, § 13) II. p. 494 ; Rivier, I. p. 238 ; Perels,
and Bynkershoek (" De dominio pp. 37-39.)
maris,"c. 3), some writers (forinstance, * But the subsoil of the bed of the
Phillimore, I. § 203) maintain that Open Sea can well, through driving
any part of the Open Sea covered for mines and piercing tunnels from the
the time by a vessel is by occupation coast, be acquired by a littoral State.
to be considered as the temporary See above, § 221, and below, §§ 287c
territory of the vessel's flag State. and 287c?.
324 THE OPEN SEA
were to content itself with the rule which excludes the

Open Sea from possible State property, the consequence
would be a condition of lawlessness and anarchy on the
Open Sea. To obviate such lawlessness, customary
International Law contains some rules which guarantee
a certain legal order on the Open Sea in spite of the
fact that it is not the territory of any State.
Legal Pro- § 255. This legal order is created through the co-
the10openr operation of the Law of Nations and the Municipal
Laws of such States as possess a maritime flag. The
following rules of the Law of Nations are universally
recognised, namely :— First, that every State which has
a maritime flag must lay down rules according to
which vessels can claim to sail under its flag, and must
furnish such vessels with some official voucher author-
ising them to make use of its flag ; secondly, that every
State has a right to punish all such foreign vessels as
sail under its flag without being authorised to do so ;
thirdly, that all vessels with their persons and goods
are, whilst on the Open Sea, considered under the sway
of the flag State ; fourthly, that every State has a right
to punish piracy on the Open Seas even if committed
by foreigners, and that, with a view to the extinction
of piracy, men-of-war of all nations can require all
suspect vessels to show their flag.
These customary rules of International Law are, so
to say, supplemented by Municipal Laws of the mari-
time States comprising provisions, first, regarding the
conditions to be fulfilled by vessels for the purpose of
being authorised to sail under their flags ; secondly,
regarding the details of jurisdiction over persons and
goods on board vessels sailing under their flags ; thirdly,
concerning the order on board ship and the relations
between the master, the crew, and the passengers ;
fourthly, concerning punishment of ships sailing with-
out authorisation under their flags.
The fact that each maritime State has a right to

legislate for its own vessels gives it a share in keeping
up a certain order on the Open Sea. And such order
has been turned into a more or less general order since
the large maritime States have concurrently made more
or less concordant laws for the conduct of their vessels
on the Open Sea.
§ 256. Although the Open Sea is free and not the Freedom
territory of any State, it may nevertheless in its whole cfpeTsea
extent become the theatre of war, since the region of andwar-
war is not only the territories of the belligerents, but
likewise the Open Sea, provided that one of the belli-
gerents atleast is a Power with a maritime flag.1 Men-
of-war of the belligerents may fight a battle in any part
of the Open Sea where they meet, and they may cap-
ture all enemy merchantmen they meet on the Open
Sea. And, further, the jurisdiction and police of the
belligerents become through the outbreak of war in so
far extended over vessels of other States, that belli-
gerent men-of-war may now visit, search, and capture
neutral merchantmen for breach of blockade, contra-
band, and the like.
However, certain parts of the Open Sea can become
neutralised and thereby be excluded from the region
of war. Thus, the Black Sea became neutralised in
1856 through article 11 of the Peace Treaty of Paris
stipulating :— " La Mer Noire est neutralisee : ouverte
a la marine marchande de toutes les nations, ses eaux
et ses ports sont formellement et a perpetuite interdites
au pavilion de guerre, soit des puissances riveraines,
soit de tout autre puissance." Yet this neutralisation
of the Black Sea was abolished2 in 1871 by article 1
of the Treaty of London, and no other part of the Open
Sea is at present neutralised.
1 Concerning the distinction between theatre and region of war, see
below, vol. II. § 70. 2 See above, § 181.
326 THE OPEN SEA
Naviga- § 257. The freedom of the Open Sea involves per-

ce°re-an< feet freedom of navigation for vessels of all nations,
^The8 whether men-of-war, other public vessels, or merchant-
Open sea. men. It involves, further, absence of compulsory
maritime ceremonials on the Open Sea. According to
the Law of Nations, no rights whatever of salute exist
between vessels meeting on the Open Sea. All so-called
maritime ceremonials on the Open Sea l are a matter
either of courtesy and usage or of special conventions and
Municipal Laws of those States under whose flags
vessels sail. There is in especial no right of any State
to require a salute from foreign merchantmen for its
men-of-war.2
The freedom of the Open Sea involves likewise
freedom of inoffensive passage 3 through the maritime
belt for merchantmen of all nations, and also for men-
of-war of all nations in so far as the part concerned of
the maritime belt forms a part of the highways for
international traffic. Without such freedom of passage,
navigation on the Open Sea by vessels of all nations
would be a physical impossibility.
claim of § 258. Since no State can exercise protection over
Maritime vessels that do not sail under its flag, and since every
Flag. vessel must, in the interest of the order and safety of
the Open Sea, sail under the flag of a State, the ques-
tion has been raised whether not only maritime States
but also such States as are not littoral States of the
Sea have a claim to a maritime flag. There ought to
be no doubt 4 that the freedom of the Open Sea involves
a claim of any State to a maritime flag. At present
no non-littoral State actually has a maritime flag, and
1 But not within the maritime belt with the supervision of the Open Sea
or other territorial waters. See in the interest of its safety. See
above, §§ 122 and 187. below, § 266.
2 That men-of-war can on the 3 See above, § 188.
Open Sea ask suspicious foreign * See, however, Westlake, I. p.
merchantmen to show their flags has 165.
nothing to do with ceremonials, but
all vessels belonging to subjects of such non-littoral

States sail under the flag of a maritime State. But
any day might bring a change. The question as to the
claim to a maritime flag on the part of a non-littoral
State was discussed in Switzerland. When, in 1864,
Swiss merchants in Trieste, Smyrna, Hamburg, and
St. Petersburg applied to the Swiss Bundesrath for per-
mission to have their vessels sailing under the Swiss
flag, the Bundesrath was ready to comply with the
request, but the Swiss Parliament, the Bundesversamm-
lung, refused the necessary consent. In 1889 and 1891
new applications of the same kind were made, but
Switzerland again refused to have a maritime flag.1
She had no doubt that she had a claim to such flag, but
was aware of the difficulties arising from the fact that,
having no seaports of her own, vessels sailing under
her flag would in many points have to depend upon
the goodwill of the maritime Powers.2
Such States as have a maritime flag as a rule have
a war flag different from their commercial flag ; some
States, however, have one and the same flag for both
their navy and their mercantile marine. But it must
be mentioned that a State can by an international
convention be restricted to a mercantile flag only, such
State being prevented from having a navy. This is
the position of Montenegro 3 according to article 29 of
the Treaty of Berlin of 1878.
§ 259. Grotius and many writers who follow 4 him Kationaie
establish two facts as the reason for the freedom of Freedom
the Open Sea. They maintain, first, that a part of Qpe^sea
1 See Salis, " Schweizerisches Bun- Herzegovina by Austria in 1908,
desrecht " (1891), vol. I. p. 234. been modified by the Powers, so that
2 The question is discussed by the port of Antivari and the other
Calvo, I. § 427 ; Twiss, I. §§ 197 and Montenegrin waters are now no
198 ; and Westlake, I. p. 165. longer closed to men-of-war of all
3 See above, § 127, but it is doubt- nations. See R.G. XVII. (1910), pp.
ful whether this restriction is still in 173-176.
existence, since article 29 has, after * See, for instance, Twiss, I. § 172,
the annexation of Bosnia and and Westlake, I. p. 160.
328 THE OPEN SEA
the Open Sea could not effectively be occupied by a

Navy and could therefore not be brought under the
actual sway of any State. And they assert, secondly,
that Nature does not give a right to anybody to ap-
propriate such things as may inoffensively be used by
everybody and are inexhaustible, and, therefore, suffi-
cient for all.1 The last argument has nowadays hardly
any value, especially for those who have freed them-
selves from the fanciful rules of the so-called Law of
Nature. And the first argument is now without basis
in face of the development of the modern navies, since
the number of public vessels which the different States
possess at present would enable many a State to occupy
effectively one part or another of the Open Sea. The
real reason for the freedom of the Open Sea is repre-
sented in the motive which led to the attack against
maritime sovereignty, and in the purpose for which
such attack was made — namely, the freedom of com-
munication, and especially commerce, between the
States which are severed by the Sea. The Sea being
an international highway which connects distant lands,
it is the common conviction that it should not be under
the sway of any State whatever. It is in the interest
of free intercourse 2 between the States that the prin-
ciple of the freedom of the Open Sea has become uni-
versally recognised and will always be upheld.3
1 See Grotius, II. c. 2, § 3. an international treaty be prevented
2 See above, § 142. from navigating on the whole or on
8 Connected with the reason for certain parts of the Open Sea. See
the freedom
merely of the question
theoretical Open Seawhether
is the Pradier-Fode"re,
where this point II. isNos. 881-885,
exhaustively
the vessels of a State could through discussed.
JURISDICTION ON THE OPEN SEA 329
IV
JURISDICTION ON THE OPEN SEA
Vattel, II. § 80— Hall, § 45— Westlake, I. pp. 166-176— Lawrence, § 100—
Halleck, p. 438— Taylor, §§ 262-267— Walker, § 20— Wheaton, § 106—
Moore, II. §§ 309-310— Bluntschli, §§ 317-352— Heffter, §§ 78-80—
Stoerk in Holtzendorff, II. pp. 518-550— Liszt, § 26— Bonfils, Nos. 578-
580, 597-613— Despagnet, Nos. 422-430— Merignhac, II. pp. 505-511—
Pradier-Fodere, V. Nos. 2376-2470— Kivier, I. § 18— Nys, II. pp. 139-165
— Calvo, I. §§ 385-473— Fiore, II. Nos. 730-742, and Code, Nos. 1001-
1027— Martens, II. §§ 55-56— Perels, § 12— Testa, pp. 98-112— Ortolan,
" Diplomatie de la mer " (1856), II. 254-326— Hall, " Foreign Powers
and Jurisdiction of the British Crown " (1894), §§ 106-109.
§ 260. Jurisdiction on the Open Sea is in the main

connected with the maritime flag under which vessels the open
sail. This is the consequence of the fact stated above l
that a certain legal order is created on the Open Sea
through the co-operation of rules of the Law of Nations
with rules of the Municipal Laws of such States as
possess a maritime flag. But two points must be em-
phasised. The one is that this jurisdiction is not juris-
diction over the Open Sea as such, but only over vessels,
persons, and goods on the Open Sea. And the other
is that jurisdiction on the Open Sea is, although mainly,
not exclusively connected with the flag under which
vessels sail, because men-of-war of all nations have,
as will be seen,2 certain powers over merchantmen of
all nations. The points which must therefore be here
discussed singly are — the claim of vessels to sail under
a certain flag, ship-papers, the names of vessels, the
connection of vessels with the territory of the flag
State, the safety of traffic on the Open Sea, the powers
of men-of-war over merchantmen of all nations, and,
lastly, shipwreck.
§ 261. The Law of Nations does not include any claim of
rules regarding the claim of vessels to sail under a
certain
certain maritime flag, but imposes the duty upon every ^cert
330 THE OPEN SEA
State having a maritime flag to stipulate by its own

Municipal Laws the conditions to be fulfilled by those
vessels which wish to sail under its flag. In the interest
of order on the Open Sea, a vessel not sailing under the
maritime flag of a State enjoys no protection whatever,
for the freedom of navigation on the Open Sea is free-
dom for such vessels only as sail under the flag of a
State. But a State is absolutely independent in fram-
ing the rules concerning the claim of vessels to its flag-
It can in especial authorise such vessels to sail under
its flag as are the property of foreign subjects ; but
such foreign vessels sailing under its flag fall thereby
under its jurisdiction. The different States have made
different rules concerning the sailing of vessels under
their flags.1 Some, as Great Britain2 and Germany,
allow only such vessels to sail under their flags as are
the exclusive property of their citizens or of corpora-
tions established on their territory. Others, as Argen-
tina, admit vessels which are the property of foreigners.
Others again, as France, admit vessels which are in
part the property of French citizens.3
But no State can allow such vessel to sail under its
flag as already sails under the flag of another State.
Just as a vessel not sailing under the flag of a State,
so a vessel sailing under the flags of two different States
does not enjoy any protection whatever. Nor is pro-
tection enjoyed by such vessel as sails under the flag of
a State which, like Switzerland, has no maritime flag.
Vessels belonging to persons who are subjects of States
without a maritime flag must obtain authority to sail
1 See Calvo, I. §§ 393-423, where Law adopted, at its meeting at
the respective Municipal Laws of Venice— see Annuaire, XV. (189G),
most countries are quoted. p. 201— in 1896, a body of ten rules
2 See section 1 of the Merchant concerning the sailing of merchant-
Shipping Act, 1894 (27 and 28 Viet. men under the maritime flag of a
c. 60), and sections 51 and 80 of the State under the heading :— " Rtgles
Merchant Shipping Act, 1906 (6 Ed. relatives A Uusage du pavilion national
VII. c. 7). pour Ics navires de commerce."
3 The Institute of International
under some other State's flag, if they wish to enjoy

protection on the Open Sea. And any vessel, although
the property of foreigners, which sails without authority
under the flag of a State, may be captured by the men-
of-war of such State, prosecuted, punished, and con-
fiscated.1
§ 262. All States with a maritime flag are by the ship
Law of Nations obliged to make private vessels sailing
under their flags carry on board so-called ship papers,
which serve the purpose of identification on the Open
Sea. But neither the number nor the kind of such
papers is prescribed by International Law, and the
Municipal Laws of the different States differ much on
this subject.2 But, on the other hand, they agree as
to the following papers :—
(1) An official voucher authorising the vessel to sail
under its flag. This voucher consists of a Certificate of
Registry, in case the flag State possesses, like Great
Britain and Germany for instance, a register of its
mercantile marine ; in other cases the voucher consists
of a " Passport," " Sea-letter," " Sea-brief," or of some
other document serving the purpose of showing the
vessel's nationality.
(2) The Muster Roll. This is a list of all 'the mem-
bers of the crew, their nationality, and the like.
(3) The Log Book. This is a full record of the
voyage, with all nautical details.
(4) The Manifest of Cargo. This is a list of the cargo
of a vessel, with details concerning the number and the
mark of each package, the names of the shippers and
the consignees, and the like.
(5) The Bills of Lading. These are duplicates of
1 See the case of the steamship 2 See Holland, " Manual of Naval
Maori King v. His Britannic Majesty's Prize Law," §§ 178-194, where the
Consul-General at Shanghai, L.R., papers required by the different
App. c. 1909, p. 562, and sections 69 maritime States are enumerated,
and 76 of the Merchant Shipping
Act, 1894 (27 -and 28 Viet. c. 60).
332 THE OPEN SEA
the documents which the master of the vessel hands

over to the shipper of the goods at shipment.
(6) The Charter Party, if the vessel is chartered.
This is the contract between the owner of the ship,
who lets it wholly or in part, and the charterer, the
person who hires it.
Names of § 263. Every State must register the names of all
els< private vessels sailing under its flag, and it must make
them bear their names visibly, so that every vessel
may be identified from a distance. No vessel must be
allowed to change her name without permission and
fresh registration.1
Terri- § 264. It is a customary rule of the Law of Nations
Quality of that men-of-war and other public vessels of any State
are' wn^s^ on *ne Open Sea as well as in foreign terri-
torial waters, in every point considered as though they
were floating parts of their home States.2 Private
vessels are only considered as though they were floating
portions of the flag State in so far as they remain whilst
on the Open Sea in principle under the exclusive juris-
diction ofthe flag State. Thus the birth of a child, a
will or business contract made, a crime 3 committed on
board ship, and the like, are considered as happening
on the territory and therefore under the territorial
supremacy of the flag4 State. But although they
appear in this respect as though they were, private
vessels are in fact not floating portions of the flag State.
For in time of war belligerent men-of-war can visit,
search, and capture neutral private vessels on the Open
Sea for breach of blockade, contraband, and the like,
1 As regards Great Britain, see * Since, however, individuals
sections 47 and 48 of the Merchant abroad remain under the personal
Shipping Act, 1894, and sections 50 supremacy of their home State,
and 53 of the Merchant Shipping nothing can prevent a State from
Act, 1906. legislating as regards such of its
2 See above, § 172, and below, §§ citizens as sail on the Open Sea on
447-451. board a foreign vessel.
3 See Jordan in R.I. 2nd Ser. X.
(1908), pp. 340-362 and 481-500.
and in time of peace men-of-war of all nations have

certain powers l over merchantmen of all nations.
§ 265. No rules of the Law of Nations exist as yet 2 safety of
F ,-, £ ,. ,v . . v Traffic on
tor the purpose 01 preventing collisions, saving lives the open
after collisions, and the like, but every State possess- Sea'
ing a maritime flag has legislated for the conduct on
the Open Sea of vessels sailing under its flag concerning
signalling, piloting, courses, collisions, and the like.
Although every State can legislate on these matters
independently of other States, more and more corre-
sponding rules have been put into force by all the States
during the second half of the nineteenth century, fol-
lowing the lead given by Great Britain through section 25
of the Merchant Shipping Act Amendment Act of 1862,
the " Regulations for preventing Collisions at Sea "
which accompany this Act, and, further, Sections 16
to 20 of the Merchant Shipping Act, 1873.3 And the
" Commercial Code of Signals for the Use of all Nations,"
published by Great Britain in 1857, has been adopted
by all maritime States. In 1889 a maritime Conference
took place at Washington, at which eighteen maritime
States were represented and which recommended a
body of rules for preventing collisions at sea to be
adopted by the single States,4 and a revision of the
Code of Signals. These regulations were revised in
1890 by a British Committee appointed by the Board
1 See below, § 266. The question which is now before Parliament, pro-
of the territoriality of vessels is ably poses such alterations of British
discussed by Hall, §§ 76-79. Municipal Law as would enable the
2 It is to be expected that matters British Government to ratify this
will soon undergo a change, for the Convention. The Institute of Inter-
Conference of the International national Law already in 1888, at its
Maritime Committee, which met at meeting at Lausanne — see Annuaire,
Brussels in September 1910 and X. (1889), p. 150— adopted a body of
where all the maritime States of eight rules concerning the subject.
Europe, the United States of 3 See 25 and 26 Viet. c. 63 ; 36 and
America, most of the South Ameri- 37 Viet. c. 83. The matter is now
can States, and Japan were repre- dealt with by sections 418—421 of the
sented, produced a draft convention Merchant Shipping Act, 1894 (57 and
concerning collisions (s£e Supplement 58 Viet. c. 60).
to the American Journal of Inter- * See Martens, N.R.Gr. 2nd Ser.
national Law, IV. (1910), p. 121). XII. p. 416.
The "Maritime Conventions Bill,"
334 THE OPEN SEA
of Trade,1 and, after some direct negotiations between

the Governments, most maritime States have made
corresponding regulations by their Municipal Laws.2
And a new and revised edition of " The International
Code of Signals " was published by the British Board
of Trade, in conformity with arrangements with
other maritime Powers, in 1900, and is now in
general use.3
The question of jurisdiction in actions for damages
for collision at sea is not at all settled.4 That the dam-
aged innocent vessel can bring an action against the
guilty ship in the Courts of the latter's flag State is
beyond doubt since jurisdiction on the Open Sea follows
the flag. If the rule that all vessels while on the Open
Sea are considered under the sway of their flag State
were one without exception, no other State would claim
jurisdiction in cases of collision but the flag State of the
guilty ship. Yet the practice of the maritime States 5
goes far beyond this, without, however, being uniform.
Thus, for instance, France6 claims jurisdiction if the
damaged ship is French, although the guilty ship may
be foreign, and also in the event of both ships being
foreign in case both consent, or for urgent measures
having a provisionary character, or in case France is a
place of payment. Thus, further, Italy 7 claims juris-
diction even if both ships are foreign in case an Italian
port is the port nearest to the collision, or in case the
damaged ship was forced by the collision to remain in
1 See Martens, N.R.G. 2nd Ser. "Conflict of Laws" (2nd ed.), pp.
XXII. p. 113. 650-652 and 790 ; Foote, " Private
2 Latest British Regulations, 1896. International Law " (3rd ed.), pp.
3 The matter of collision at sea is 486 and 495 ; Westlake, " Private
exhaustively treated by Prien, " Der International Law " (3rd ed.), pp.
Zusammenstoss von Schiflen nach 266-269 ; Marsden, " The Law of
dem Gesetzen des Erdballs " (2nd ed. Collisions at Sea " (6th ed. 1910) ;
1899). Williams and Bruce, " Treatise on
* See Phillimore, IV. § 815 ; Calvo, the Jurisdiction of English Courts in
I. § 444; Pradier-Fodere, V. Nos. Admiralty Actions " (3rd ed. 1902).
2362-2374 ; Bar, " Private Inter- 6 See above, § 146.
national Law" (2nd ed. translated 6 See Pradier-Fodere", No. 2363.
by Gillespie), pp. 720 and 928 ; Dicey, 7 See Pradier-Fod6rd, No. 2364.
an Italian port. Great Britain goes farthest, for the

Admiralty Court claims jurisdiction provided the guilty
ship is in a British port at the time the action for dam-
ages isbrought, even if the collision took place between
two foreign ships anywhere on the High Seas.1 And the
Admiralty Court justifies this extended claim of juris-
diction 2by maintaining that collision is a matter of
communis juris, and can therefore be adjudicated upon
by the Courts 3 of all maritime States.4
§ 266. Although the freedom of the Open Sea and Powers of
the fact that vessels on the Open Sea remain under the warmer
jurisdiction of the flag State exclude as a rule the exer- êôf an
cise of any State's authority over foreign vessels, there Nations.
are certain exceptions in the interest of all maritime
nations. These exceptions are the following :—
(1) Blockade and Contraband. In time of war
belligerents can blockade not only enemy ports and
territorial coast waters, but also parts of the Open Sea
adjoining those ports and waters, and neutral merchant-
men attempting to break such a blockade can be con-
fiscated. And, further, in time of war belligerent
men-of-war can visit, search, and eventually seize
neutral merchantmen for contraband, and the like.
(2) Verification of Flag. It is a universally recog-
nised customary rule of International Law that men-
of-war of all nations have, to maintain the safety of
the Open Sea against piracy, the power to require sus-
picious private vessels on the Open Sea to show their
1 Or even in foreign territorial Mercantile Bank of India, London,
waters. See Williams and Bruce, and China v. The Netherlands India
op. cit., p. 78:— "The Admiralty Steam Navigation Co., 10 Q.B.D. 537-
Court from ancient times exercised 3 The practice of the United States
jurisdiction in cases of collision of America coincides with that of
between foreign vessels on the High Great Britain ; see the case of the
Seas ; and since the Admiralty Court Belgerdand, 114, United States, 355,
Act, 1861, it has entertained suits and Wharton, I. § 27.
for collision between ships in foreign 4 The Institute of International
waters, and between an English and Law, at its meeting at Lausanne in
a foreign ship in foreign waters." 1888, adopted two rules concerning
2 The Johann Friederich (1838), the jurisdiction in cases of collision ;
1 W. Robinson, 35; the Chartered see Annuaire, X. (1889), p. 152.
336 THE OPEN SEA
flag.1 But such vessels must be suspicious, and, since

a vessel may be a pirate although she shows a flag, she
may eventually be stopped and visited for the purpose
of inspecting her papers and thereby verifying the flag.
It is, however, quite obvious that this power of men-of-
war must not be abused, and that the home State is
responsible for damages in case a man-of-war stops and
visits a foreign merchantman without sufficient ground
of suspicion. The right of every State to punish piracy
on the Open Sea will be treated below, §§ 272-280.
(3) So-called Right of Pursuit. It is a universally
recognised customary rule, that men-of-war of a littoral
State can pursue into the Open Sea, seize, and bring
back into a port for trial any foreign merchantman
that has violated the law whilst in the territorial waters
of the State in question. But such pursuit into the
Open Sea is permissible only if commenced while the
merchantman is still in the said territorial waters or
has only just escaped thence, and the pursuit must stop
as soon as the merchantman passes into the maritime
belt of a foreign State.2
(4) Abuse of Flag. It is another universally recog-
nised rule that men-of-war of every State may seize
and bring to a port of their own for punishment any
foreign vessel sailing under the flag of such State with-
out authority.3 Accordingly, Great Britain has, by
1 So-called " Droit d'enquete " or to enter into treaty agreements
" Verification du pavilion." This according to which their men-of-war
power of men-of-war has given acquire certain powers over each
occasion to much dispute and dis- other's merchantmen on the Open
cussion, but in fact nobody denies Sea. According to such agreements,
that in case of grave suspicion this which are, however, not universal,
power does exist. See Twiss, I. § the following additional exceptions
193; Hall, § 81, p. 276; Fiore, II. may be enumerated :-—
Nos. 732-736; Perels, § 17; Taylor, (1) In the interest of the sup-
§ 266 ; Bonfils, No. 519. pression of the slave trade, the
2 See Hall, § 80. signatory Powers of the General Act
8 The four exceptions mentioned of the Brussels Conference of 1890
in the text above are based on to which all the larger maritime
universally recognised customary Powers belong, have, by articles 20-
rules of the Law of Nations. It is, 65, stipulated that their men-of-war
of course, possible for several States shall have the power, in certain parts
section 69 of the Merchant Shipping Act, 1894, enacted :

— "If a person uses the British flag and assumes the
British national character on board a ship owned in
whole or in part by any persons not qualified to own a
British ship, for the purpose of making the ship appear
a British ship, the ship shall be subject to forfeiture
under this Act, unless the assumption has been made
for the purpose of escaping capture by an enemy or by
a foreign ship of war in the exercise of some belligerent
right."
§ 267. A man-of-war which meets a suspicious HowVeri-
merchantman not showing her colours and wishes to Fiagis*
verify the same, hoists her own flag and fires a blank effected-
cartridge. This is a signal for the other vessel to hoist
her flag in reply. If she takes no notice of the signal,
the man-of-war fires a shot across her bows. If the
suspicious vessel, in spite of this warning, still declines to
hoist her flag, the suspicion becomes so grave that the
man-of-war may compel her to bring to for the purpose
of visiting her and thereby verifying her nationality.
§ 268. The intention to visit may be communicated HOW visit
to a merchantman either by hailing or by the " in-
forming gun"— that is, by firing either one or two
blank cartridges. If the vessel takes no notice of this
communication, a shot may be fired across her bows
as a signal to bring to, and, if this also has no effect,
force may be resorted to. After the vessel has been
brought to, either an officer is sent on board for the
purpose of inspecting her papers, or her master is
ordered to bring his ship papers for inspection on board
the man-of-war. If the inspection proves the papers to be
of the Open Sea where slave traffic (3) In the interest of Transatlantic
still continues, to stop every suspect telegraph cables, men-of-war of the
vessel under 500 tons. signatory Powers of the treaty for
(2) In the interest of the Fisheries 'the protection of such cables have
in the North Sea, special cruisers of certain powers over merchantmen,
the littoral Powers control all fishing (See below, § 287.)
vessels and bumboats. See below,
§§ 282 and 283.
VOL. I. Y
338 THE OPEN SEA
in order, a memorandum of the visit is made in the log-

book, and the vessel is allowed to proceed on her course.
HOW § 269. Search is naturally a measure which visit
effected.8 no
mus^satisfaction
always precede. It is because
that search the visit Search
is instituted. has givenis
effected by an officer and some of the crew of the man-
of-war, the master and crew of the vessel to be searched
not being compelled to render any assistance whatever
except to open locked cupboards and the like. The search
must take place in an orderly way, and no damage must
be done to the cargo. If the search proves everything
to be in order, the searchers have carefully to replace
everything removed, a memorandum of the search is
to be made in the log-book, and the searched vessel
is to be allowed to proceed on her course.
HOW § 270. Arrest of a vessel takes place either after
effected! y'ls^ an(^ searcn nave shown her liable thereto, or after
she has committed some act which alone already justi-
fies her seizure. Arrest is effected through the com-
mander of the arresting man-of-war appointing one of
her officers and a part of her crew to take charge of the
arrested vessel. Such officer is responsible for the
vessel and her cargo, which latter must be kept safe
and intact. The arrested vessel, either accompanied by
the arresting vessel or not, must be brought to such
harbour as is determined by the cause of the arrest.
Thus, neutral or enemy ships seized in time of war are
always 1 to be brought into a harbour of the flag State
of the captor. And the same is the case in time of
peace, when a vessel is seized because her flag cannot
be verified, or because she was sailing under no flag at
all. On the other hand, when a fishing vessel or a
bumboat is arrested in the North Sea, she is always to
be brought into a harbour of her flag State and handed
over to the authorities there.2
1 Except in the case of distress II. § 193.
or unseaworthiness ; see below, vol. 8 See below, §§ 282 and 283.
§ 271. It is at present the universal conviction on shipwreck

the part of the States that goods and persons ship-
wrecked on the Open Sea do not thereby lose the pro-
tection of the flag State of the shipwrecked vessel.
No State is allowed to recognise appropriation of aban-
doned vessels and other derelicts on the Open Sea by
those of its subjects who take possession thereof. But
every State can by its Municipal Laws enact that those
of its subjects who take possession of abandoned vessels
and of shipwrecked goods need not restore them to
their owners without salvage,1 whether the act of taking
possession occurred on the actual Open Sea or within
territorial waters and on shore of the respective State.
As regards vessels in distress on the Open Sea, some
writers2 maintain that men-of-war must render assist-
ance even to foreign vessels in distress. But it is im-
possible tosay that there is a customary or conventional
rule of the Law of Nations in existence which imposes
upon all States the duty of instructing their men-of-war
to render assistance to foreign vessels in distress, al-
though many States order by Municipal Regulations
their men-of-war to render such assistance, and although
morally every vessel is bound to render assistance to
another vessel in distress.3
1 The Conference of the Maritime and Dicey, " Conflict of Laws " (2nd
Committee held at Brussels in Sep- ed. 1908), p. 791. See also sect. 545
tember 1910 also produced a draft con- and 565 of the Merchant Shipping
vention concerning salvage, which Act, 1894.
the British Government likewise in- 2 See, for instance, Perels, § 25,
tends to ratify provided Parliament and Fiore, II. No. 732.
passes the "Maritime Conventions 3 According to article 11 of the
Bill," see above, § 265, p. 333, note 2, draft convention concerning salvage
and Supplement to the American produced by the Conference of the
Journal of International Law, IV. Maritime Committee at Brussels in
(1910), p. 126. According to the September 1910 — see above, note 1 —
practice of the Admiralty Court " every master shall be obliged, as
— see the case of the Johann far as he can do so without serious
Friederich, 1 W. Robinson, 35 — danger to his vessel, his crew, or his
salvage on the Open Sea is, just like passengers, to lend assistance to any
collisions, a matter of communis juris person, even an enemy, found at sea
upon which the Courts of all mari- in danger of perishing. The owner
time States are competent to adjudi- of the vessel shall not be liable for
cate. See Phillimore, IV. § 815; violations of the foregoing provision."
340 THE OPEN SEA
PIRACY
Hall, §§ 81-82— Westlake, I. pp. 177-182— Lawrence, § 102— Phillimore, I.

§§ 356-361— Twiss, I. §§ 177 and 193— Halleck, I. pp. 444-450— Taylor, §§
188-189— Walker, § 21— Westlake, I. pp. 177-182— Wheaton, §§ 122-124
—Moore, II. §§ 311-315— Bluntschli, §§ 343-350— Heffter, § 104— Gareis in
Holtzendorff, II. pp. 571-581— Gareis, § 58— Liszt, § 26— Ullmann, § 104—
Bonfils, Nos. 592-594— Despagnet, Nos, 431-433— Merignhac, II. pp.
506-511— Pradier-Fodere", V. Nos. 2491-2515— Rivier, I. pp. 248-251—
Perels, §§ 16-17— Testa, pp. 90-97— Ortolan, "Diplomatic de la mer"
(1856), I. pp. 231-253— Stiel, " Der Thatbestand der Piraterie " (1905).
concep- § 272. Piracy, in its original and strict meaning, is

Piracy every unauthorised act of violence committed by a
private vessel on the Open Sea against another vessel
with intent to plunder (animo furandi). The majority
of writers confine piracy to such acts, which indeed are
the normal cases of piracy. But there are cases pos-
sible which are not covered by this narrow definition,
and yet they are practically treated as though they
were cases of piracy. Thus, if the members of the crew
revolt and convert the ship and the goods thereon to
their own use, they are considered to be pirates, al-
though they have not committed an act of violence
against another ship. Thus, secondly, if unauthorised
acts of violence, such as murder of persons on board the
attacked vessel or destruction of goods thereon, are
committed on the Open Sea without intent to plunder,
such acts are practically considered to be piratical.
Under these circumstances several writers,1 correctly,
I think, oppose the usual definition of piracy as an act
of violence committed by a private vessel against an-
other with intent to plunder. But no unanimity exists
among these very writers concerning a fit definition of
piracy, and the matter is therefore very controversial.
If a definition is desired which really covers all such
1 Hall, § 81 ; Lawrence, § 102 ; Bluntschli, § 343 ; Liszt, § 26 ;
Calvo, § 485,
PIRACY 341
acts as are practically treated as piratical, piracy must

be defined as every unauthorised act of violence against
persons or goods committed on the Open Sea either by a
private vessel against another vessel or by the mutinous
crew or passengers against their own vessel.1
Already, before a Law of Nations in the modern
sense of the term was in existence, a pirate was con-
sidered an outlaw, a " hostis humani generis/' Accord-
ing to the Law of Nations the act of piracy makes the
pirate lose the protection of his home State, and thereby
his national character ; and his vessel, although she
may formerly have possessed a claim to sail under a
certain State's flag, loses such claim. Piracy is a so-
called " international crime " ; 2 the pirate is considered
the enemy of every State, and can be brought to justice
anywhere.
§ 273. Private vessels only 3 can commit piracy. A Private
, ,,. /. , J . Ships as
man-ot-war or other public snip, as long as she remains Subjects
such, is never a pirate. If she commits unjustified acts
of violence, redress must be asked from her flag State,
which has to punish the commander and to pay dam-
ages where required. But if a man-of-war or other
public ship of a State revolts and cruises the sea for her
own purposes, she ceases to be a public ship, and acts
of violence now committed by her are indeed piratical
acts. A privateer is not a pirate as long as her acts of
violence are confined to enemy vessels, because such
acts are authorised by the belligerent in whose services
she is acting. And it matters not that the privateer is
originally a neutral vessel.4 But if a neutral vessel
were to take Letters of Marque from both belligerents,
she would be considered a pirate.
1 The conception of Piracy is dis- 3 Piracy committed by the muti-
cussed in the case of the Republic of nous crew will be treated below,
Bolivia v. The Indemnity Mutual § 274.
Marine Assurance Co., L.B. (1909), 4 See details regarding this con-
1 K.B., 785. troversial point in Hall, § 81. See
2 See above, § 161. also below, vol. II. §§ 83 and 330.
342 THE OPEN SEA
Doubtful is the case where a privateer in a civil war

has received her Letters of Marque from the insur-
gents, and, further, the case where during a civil war
men-of-war join the insurgents before the latter have
been recognised as a belligerent Power. It is evident
that the legitimate Government will treat such ships
as pirates ; but third Powers ought not to do so, as
long as these vessels do not commit any act of violence
against ships of these third Powers. Thus, in 1873,
when an insurrection broke out in Spain, Spanish men-
of-war stationed at Carthagena fell into the hands of
the insurgents, and the Spanish Government proclaimed
these vessels pirates, England, France, and Germany
instructed the commanders of their men-of-war in the
Mediterranean not to interfere as long as these insurgent
vessels 1 abstained from acts of violence against the
lives and property of their subjects.2 On the other
hand, when in 1877 a revolutionary outbreak occurred
at Callao in Peru and the ironclad Huascar, which had
been seized by the insurgents, put to sea, stopped
British steamers, took a supply of coal without payment
from one of these, and forcibly took two Peruvian
officials from on board another where they were pas-
sengers, she was justly considered a pirate and
attacked by the British Admiral de Horsey, who
1 See Calvo, I. §§ 497-501 ; Hall, bore a commission from Columbian

§ 82 ; Westlake, I. pp. 179-182. insurgents, and was designed to assist
2 But in the American case of the in the blockade of the port of
Ambrose Light (25 Federal 408 ; see Carthagena by the rebels. Corn-
also Moore, II. § 332, p. 1098) the mander Clark considered the vessel
Court did not agree with this. The to be a pirate and sent her in for
Ambrose Z^fa wasabrigantine which, condemnation. The Court held that
when on April 24, 1885, she was in absence of any recognition of
sighted by Commander Clark of the Columbian insurgents as a belli-
the U.S.S. Alliance in the Caribbean gerent Power the Ambrose Light had
Sea, was flying a strange flag showing been lawfully seized as a pirate.
a red cross on a white ground, The vessel was, however, neverthe-
but she afterwards hoisted the less released because the American
Columbian flag ; when seized she Secretary of State had recognised by
was found to carry sixty armed implication a state of war between
soldiers, one cannon, and a consider- the insurgents and the legitimate
able quantity of ammunition. She Columbian Government.
PIRACY 343
was in command of the British squadron in the

Pacific.1
The case must also be mentioned of a privateer or
man-of-war which after the conclusion of peace or the
termination of war by subjugation and the like con-
tinues to commit hostile acts. If such vessel is not
cognisant of the fact that the war has come to an end
she cannot be considered as a pirate. Thus the Con-
federate cruiser Shenandoah, which in 1865, for some
months after the end of the American Civil War, attacked
American vessels, was not considered a pirate 2 by the
British Government when her commander gave her up
to the port authorities at Liverpool in November 1865,
because he asserted that he had not known till August
of the termination of the war, and that he had ab-
stained from hostilities as soon as he had obtained this
information.
It must be emphasised that the motive and the
purpose of such acts of violence do not alter their
piratical character, since the intent to plunder (animus
furandi) is not required. Thus, for instance, if a private
neutral vessel without Letters of Marque during war
out of hatred of one of the belligerents were to attack
and to sink vessels of such belligerent without plunder-
ing at all, she would nevertheless be considered as a
pirate.3
§ 274. The crew or the whole or a part of the pas- Mutinous
sengers who revolt on the Open Sea and convert the passen-
vessel and her goods to their own use, commit thereby fleets
piracy, whether the vessel is private or public. But a of piracy,
simple act of violence alone on the part of crew or
passengers does not constitute in itself the crime of
1 As regards the case of the 2 See Lawrence, § 102.

Argentinian vessel Portena, and the 8 This statement is correct in spite
Spanish vessel Montezuma, after- of art. 46, No. 1, of the Declaration of
•wards called Cespedes, see Calvo, I. London ; see below, vol. II. § 410,
§§ 502 and 503. No. 1.
344 THE OPEN SEA
piracy, at least not as far as International Law is con-

cerned. If,for instance, the crew were to murder the
master on account of his cruelty and afterwards carry
on the voyage, they would be murderers, but not pirates.
They are pirates only when the revolt is directed not
merely against the master, but also against the vessel,
for the purpose of converting her and her goods to
their own use.
object of § 275. The object of piracy is any public or private
vessel, or the persons or the goods thereon, whilst on
the Open Sea. In the regular case of piracy the pirate
wants to make booty ; it is the cargo of the attacked
vessel which is the centre of his interest, and he might
free the vessel and the crew after having appropriated
the cargo. But he remains a pirate whether he does so
or kills the crew and appropriates the ship, or sinks her.
On the other hand, it does not matter if the cargo is
not the object of his act of violence. If he stops a
vessel and takes a rich passenger off with the intention
to keep him for the purpose of a high ransom, his act
is piracy. It is likewise piracy if he stops a vessel for
the purpose of killing a certain person only on board,
although he may afterwards free vessel, crew, and cargo.
That a possible object of piracy is not only another
vessel, but also the very ship on which the crew and
passenger navigate, is an inference from the statements
above in § 274.
Piracy, § 276. Piracy is effected by any unauthorised act of
effected, violence, be it direct application of force or intimidation
through menace. The crew or passengers who, for
the purpose of converting a vessel and her goods to
their own use, force the master through intimidation
to steer another course, commit piracy as well as those
who murder the master and steer the vessel themselves.
And a ship which, through the threat to sink her
if she should refuse, forces another ship to deliver up
PIRACY 345
her cargo or a person on board, commits piracy as well

as the ship which attacks another vessel, kills her crew,
and thereby gets hold of her cargo or a person on board.
The act of violence need not be consummated to
constitute the crime of piracy. The mere attempt, such
as attacking or even chasing only for the purpose of
attack, by itself comprises piracy. On the other hand,
it is doubtful whether persons cruising in armed vessels
with the intention of committing piracies are liable to
be treated as pirates before they have committed a
single act of violence.1
§ 277. Piracy as an " international crime " can be where
committed on the Open Sea only. Piracy in territorial
coast waters has quite as little to do with International mitted-
Law as other robberies on the territory of a State. Some
writers 2 maintain that piracy need not necessarily be
committed on the Open Sea, but that it suffices that the
respective acts of violence are committed by descent
from the Open Sea. They maintain, therefore, that
if " a body of pirates land on an island unappropriated
by a civilised Power, and rob and murder a trader who
may be carrying on commerce there with the savage
inhabitants, they are guilty of a crime possessing all
the marks of commonplace professional piracy." With
this opinion I cannot agree. Piracy is, and always has
been, a crime against the safety of traffic on the Open
Sea, and therefore it cannot be committed anywhere
else than on the Open Sea.
§ 278. A pirate and his vessel lose ipso facto by an Jurisdic-
act of piracy the protection of their flag State and their pirates,
national character. Every maritime State has by a
customary rule of the Law of Nations the right to ment
1 See Stephen, " Digest of the no attempt to commit a piratical act
Criminal Law," article 104. In the had been made by her.
case of the Ambrose Light — see 2 Hall, § 81; Lawrence, § 102;
above, § 273— the Court considered Westlake, I. p. 177.
the vessel to be a pirate, although
346 THE OPEN SEA
punish pirates. And the vessels of all nations, whether

men-of-war, other public vessels, or merchantmen,1 can
on the Open Sea 2 chase, attack, seize, and bring the
pirate home for trial and punishment by the Courts of
their own country. In former times it was said to be
a customary rule of International Law that pirates
could at once after seizure be hanged or drowned by the
captor. But this cannot now be upheld, although some
writers assert that it is still the law. It would seem
that the captor may execute pirates on the spot only
when he is not able to bring them safely into a port for
trial ; but Municipal Law may, of course, interdict such
execution. Concerning the punishment for piracy, the
Law of Nations lays down the rule that it may be
capital. But it need not be, the Municipal Law of the
different States being competent to order any less severe
punishment. Nor does the Law of Nations make it a
duty for every maritime State to punish all pirates.3
That men-of-war of all nations have, with a view to
insuring the safety of traffic, the power of verifying the
flags of suspicious merchantmen of all nations, has
already been stated above (§ 266, No. 2).
Pirata
non mutat § 279. The question as to the property in the seized
domi-
nium.
piratical vessels and the goods thereon has been the
subject of much controversy. During the seventeenth
century the practice of several States conceded such
vessel and goods to the captor as a premium. But
during the eighteenth century the rule pirata non mutat
1 A few writers (Gareis in Criminal Code, piracy committed by
Holtzendorff, II. p 575 ; Liszt, § 26 ; foreigners against foreign vessels
Ullmann, § 104; Stiel, op. cit., p. 51) cannot be punished by German
maintain, however, that men-of-war Courts (see Perels, § 17). From
only have the power to seize the article 104 of Stephen's "Digest of
pirate. the Criminal Law," there seems to be
2 If a pirate is chased on the Open no doubt that, according to English
Sea and flees into the territorial Law, all pirates are liable to be
maritime belt, the pursuers may punished. See Stiel, op. cit., p. 15,
follow, attack, and arrest the pirate note 4, where a survey is given of
there ; but they must give him up to the Municipal Law of many States
the authorities of the littoral State. concerning this point.
3 Thus, according to the German
PIRACY 347
dominium became more and more recognised. Now-

adays the conviction would seem to be general that
ship and goods have to be restored to their proprietors,
and may be conceded to the captor only when the real
ownership cannot be ascertained. In the first case,
however, a certain percentage of the value is very often
conceded to the captor as a premium and an equivalent
for his expenses (so-called droit de recousse1). Thus,
according to British Law,2 a salvage of 12J per cent,
is to be paid to the captor of the pirate.
§ 280. Piracy, according to the Law of Nations, piracy
which has been defined above (§ 272) as every un-
authorised act of violence against persons or goods
committed on the Open Sea either by a private vessel
against another vessel or by the mutinous crew or
passengers against their own vessel, must not be con-
founded with the conception of piracy according to the
different Municipal Laws.3 The several States may con-
fine themselves to punishing as piracy a narrower circle
of acts of violence than that which the Law of Nations
defines as piracy. On the other hand, they may punish
their subjects as pirates for a much wider circle of acts.
Thus, for instance, according to the Criminal Law of
England,4 every English subject is inter alia deemed to
be a pirate who gives aid or comfort upon the sea to
the King's enemies during a war, or who transports
slaves on the High Seas.
However, since a State cannot on the Open Sea
enforce its Municipal Laws against others than its own
subjects, no State can treat such foreign subjects on
the Open Sea as pirates as are not pirates according
1 See details regarding the question of Piratical Ships, &c." (13 &
tion as to the piratical vessels and 14 Viet. ch. 26).
goods in Pradier-Fodere, V. Nos. 8 See Calvo, §§ 488-492 ; Lawrence,
2496-2499. § 103 ; Pradier-Fodere, V. Nos. 2501
2 See section 5 of the " Act to and 2502.
repeal an Act of the Sixth Year of * See Stephen, "Digest of the
King George the Fourth, for en- Criminal Law," articles 104-117.
couraging the Capture or Destruc-
348 THE OPEN SEA
to the Law of Nations. Thus, when in 1858, before

the abolition of slavery in America, British men-of-war
molested American vessels suspected of carrying slaves,
the United States objected and rightly complained.1
VI
FISHERIES IN THE OPEN SEA
Grotius, II. c. 3, § 4— Vattel, I. § 287— Hall, § 27— Lawrence, §§ 86 and 91—

Phillimore, I. §§ 181-195— Twiss, I. § 185— Taylor, §§ 249-250— Wharton,
II. §§ 300-308— Wheaton, §§ 167-171— Moore, I. §§ 169-173— Bluntschli,
§ 307— Stoerk in Holtzendorff, II. pp. 504-507— Gareis, § 62— Liszt, § 35
— Ullmann, § 103— Bonfils, Nos. 581-582, 595— Despagnet, Nos. 411-413
— Mengnbac, II. p. 531— Pradier-Fode're, V. Nos. 2446-2458— Rivier, I.
pp. 243-245— Nys, II. pp. 165-169— Calvo, I. §§ 357-364— Fiore, II. Nos.
728-729, and Code, Nos. 995-999— Martens, I. § 98— Perels, § 20— Hall,
"Foreign Powers and Jurisdiction" (1894), § 107— David, "La p6cbe
maritime au point de vue international" (1897)— Fulton, "The
Sovereignty of the Seas " (1911), pp. 57-534.
Fisheries § 281. Whereas the fisheries in the territorial mari-

Open Sea time belt can be reserved by the littoral State for its
NationSa11 own subjects, it is an inference of the freedom of the
Open Sea that the fisheries thereon are open 2 to vessels
1 See Wharton, III. § 327, pp. 142 of certain submerged portions of
and 143 ; Taylor, § 190 ; Moore, II. land which have been treated from
§ 310, pp. 941-946. time immemorial by the successive
a Denmark silently, by fishing rulers of the island as subject of
regulations of 1872, dropped her
claim to an exclusive right of property and jurisdiction." See Hall,
fisheries within twenty miles of " Foreign Powers and Jurisdiction "
(1894), p. 243, note 1. See also
the coast of Iceland ; see Hall, § 40, Westlake, I. p. 186, who says: "The
p. 153, note 2. Russia promulgated, case of the pearl fishery is peculiar,
in 1911, a statute forbidding the the pearls being obtained from the
fisheries to foreign vessels within sea bottom by divers, so that it has
twelve miles of the shore of the White a physical connection with the
Sea, but the Powers protested against stable element of the locality which
this encroachment upon the freedom is wanting to the pursuit of fish
of the Open Sea ; the matter is still swimming in the water. When
unsettled. carried on under State protection, as
A case of a particular kind would that off the British island of Ceylon,
seem to be the pearl fishery off or that in the Persian Gulf which is
Ceylon, which extends to a distance protected by British ships in pursu-
of twenty miles from the shore ance of treaties with certain chiefs
and for which regulations exist of the Arabian mainland, it may be
which are enforced against foreign regarded as an occupation of the bed
as well as British subjects. The of the sea. In that character the
claim on which these regulations pearl fishery will be territorial even
are based is one " to the products though the shallowness of the water
FISHERIES IN THE OPEN SEA 349
of all nations. Since, however, vessels remain whilst

on the Open Sea under the jurisdiction of their flag
State, every State possessing a maritime flag can legis-
late concerning the exercise of fisheries on the Open
Sea on the part of vessels sailing under its flag. And
for the same reason a State can by an international
agreement renounce its fisheries on certain parts of the
Open Sea, and accordingly interdict its vessels from
exercising fisheries there. If certain circumstances and
conditions make it advisable to restrict and regulate
the fisheries on some parts of the Open Sea, the Powers
are therefore able to create restrictions and regulations
for that purpose through international treaties. Such
treaties have been concluded — first, with regard to the
fisheries in the North Sea and the suppression of the
liquor trade among the fishing vessels in that Sea ;
secondly, with regard to the seal fisheries in the Behring
Sea ; thirdly, with regard to the fisheries around the
Faroe Islands and Iceland.
§ 282. For the purpose of regulating the fisheries in Fisheries
the North Sea, an International Conference took place North Sea.
at the Hague in 1881 and again in 1882, at which Great
Britain, Belgium, Denmark, France, Germany, Holland,
and Sweden-Norway were represented, and on May 6,
1882, the International Convention for the Regulation
may allow it to be practised beyond Parliamentary Papers, United States,
the limit which the State in question No. 4 (1893) Behring Sea Arbitration,
generally fixes for the littoral seas, Archives of His Majesty's Govern-
as in the case of Ceylon it is practised ment, pp. 51 and 59. But it is sub-
beyond the three miles limit mitted that the bed of the Open Sea
generally recognised by Great is not a possible object of occupation.
Britain. * Qui doutera,' says Vattel The explanation of the pearl fisheries
(I. §28), 'queles pecheries de Bahrein off Ceylon and in the Persian Gulf
et de Ceylon ne puissent legitime- being exclusively British is to be
ment tomber nature
the territorial en proprie'te
of the ?industry
' And found
the Openin the Sea
fact was
that not
the freedom of
a rule of
will carry with it, as being necessary International Law when these
for its protection, the territorial fisheries were taken possession of.
character of the spot." This opinion See Oppenheim in Z.V. II. (1908), pp.
of Westlake coincides with that 6-10, and Westlake, I. (2nd ed.),
contended by Great Britain during p. 203.
the Behring Sea Arbitration ; see
350 THE OPEN SEA
of the Police of the Fisheries in the North Sea outside

the territorial waters l was signed by the representatives
of all these States, Sweden-Norway excepted, to which
the option of joining later on is given. This treaty
contains the following stipulations : 2 —
(1) All the fishing vessels of the signatory Powers
must be registered, and the registers have to be ex-
changed between the Powers (article 5). Every vessel
has to bear visibly in white colour on black ground its
number, name, and the name of its harbour (articles
6-11). Every vessel must bear an official voucher of
her nationality (articles 12-13).
(2) To avoid conflicts between the different fishing
vessels, very minute interdictions and injunctions are
provided (articles 14-25).
(3) The supervision of the fisheries by the fishing
vessels of the signatory Powers is exercised by special
cruisers of these Powers (article 26). With the ex-
ception of those contraventions which are specially
enumerated by article 27, all these cruisers are com-
petent to verify all contraventions committed by the
fishing vessels of all the signatory Powers (article 28).
For that purpose they have the right of visit, search,
and arrest (article 29). But a seized fishing vessel is
to be brought into a harbour of her flag State and to
be handed over to the authorities there (article 30).
All contraventions are to be tried by the Courts of the
State to which the contravening vessels belong (article
36) ; but in cases of a trifling character the matter can
be compromised on the spot by the commanders of the
special public cruisers of the Powers (article 33).
1 Martens, N.R.G. 2nd Ser. IX. fisheries in the North Sea, Great
p. 556. Britain enacted in 1883 the " Act to
2 The matter is exhaustively carry into effect an International
treated by Rykere, " Le regime legal Convention concerning the Fisheries
de la peche maritime dans la Mer in the North Sea, and to amend the
du Nord" (1901). To carry out the Laws relating to British Sea
obligations undertaken by her in the Fisheries " (46 and 47 Viet. ch. 22).
Convention for the regulation of the
FISHERIES IN THE OPEN SEA 351
§ 283. Connected with the regulation of the fisheries Bumboats

is the abolition of the liquor trade among the fishing
vessels in the North Sea. Since serious quarrels and
difficulties were caused through bumboats and floating
grog-shops selling intoxicating liquors to the fishermen,
an International Conference took place at the Hague
in 1886, where the signatory Powers of the Hague Con-
vention concerning the fisheries in the North Sea were
represented. And on November 16, 1887, the Inter-
national Convention concerning the Abolition of the
Liquor Traffic among the fishermen in the North Sea
was signed by the representatives of these Powers —
namely, Great Britain, Belgium, Denmark, France,
Germany, and Holland. This treaty * was, however,
not ratified until 1894, and France did not ratify it at
all. It contains the following stipulations : 2—
It is interdicted to sell spirituous drinks to persons
on board of fishing vessels, and these persons are pro-
hibited from buying such drinks (article 2). Bum-
boats, which wish to sell provisions to fishermen, must
be licensed by their flag State and must fly a white flag 3
with the letter S in black in the middle (article 3). The
special cruisers of the Powers which supervise the
fisheries in the North Sea are likewise competent to
supervise the treaty stipulations concerning bum-
boats ; they have the right to ask for the production
of the proper licence, and eventually the right to arrest
the vessel (article 7). But arrested vessels must always
be brought into a harbour of their flag State, and all
contraventions are to be tried by Courts of the flag
State of the contravening vessel (articles 2, 7, 8).
§ 284. In 1886 a conflict arose between Great Britain Fisheries
seal
1 See Martens, N.R.G. 2nd Ser. 3 This flag was agreed upon in the
XIV. p. 540, and XXII. p. 563. Protocol concerning the ratification
2 The matter is treated by of the Convention. (See Martens,
Guillaume in B.I., XXVI. (1894), N.R.G. 2nd Ser. XXII. p. 565.)
p. 488.
352 THE OPEN SEA
in and the United States through the seizure and con-

Behnng fiscatiOn of British-Columbian vessels which had hunted
seals in the Behring Sea outside the American terri-
torial belt, infringing regulations made by the United
States concerning seal fishing in that sea. Great Britain
and the United States concluded an arbitration treaty l
concerning this conflict in 1892, according to which the
arbitrators should not only settle the dispute itself, but
also (article 7) " determine what concurrent regulations
outside the jurisdictional limits of the respective Govern-
ments are necessary " in the interest of the preservation
of the seals. The Arbitration Tribunal, which assembled
and gave its award 2 at Paris in 1893, imposed the duty
upon both parties of forbidding their subjects to kill
seals within a zone of sixty miles around the Pribiloff
Islands ; the killing of seals at all between May 1 and
July 31 each year ; seal-fishing with nets, firearms, and
explosives ; seal-fishing in other than specially licensed
sailing vessels. Both parties in 1894 carried out this
task imposed upon them.3 Other maritime Powers were
at the same time asked by the United States to submit
voluntarily to the regulations made for the parties by
the arbitrators, but only Italy 4 has agreed to this.
Experience has shown that the provisions made
by the Arbitration Tribunal for the purpose of pre-
venting the extinction of the seals in the Behring Sea
are insufficient. The United States therefore invited
the maritime Powers whose subjects are engaged in the
seal fisheries to a Pelagic Sealing Conference which took
place at Washington in 1911, and produced a conven-
tion 5which was signed on July 7, 1911, by which the
1 See Martens, N.R.G. 2nd Ser. Mer de Behring" (1906), and Balch,
XVIII. p. 587. " Involution de TArbitrage Inter-
8 See Martens, N.R.G-. 2nd Ser. national" (1908), pp. 70-91.
XXI. p. 439. The award is discussed 3 See the Behring Sea Award Act,
by Barclay in R.I. XXV. (1893), p. 1894 (57 Viet. c. 2).
417, and Engelhardt in R.I. XXVI. « See Martens, N.R.G. 2nd Ser.
(1894), p. 386, and R.G. V. (1898), XXII. p. 624.
pp. 193 and 347. See also Tillier, 6 See below, § 593, No. 2.
"Les Pecheries de Phoques de la
TELEGEAPH CABLES IN THE OPEN SEA 353
suspension of pelagic sealing for fifteen years was agreed

upon.
[No further details of this Convention are as yet known,
and it has not yet been ratified.]
§ 285. For the purpose of regulating the fisheries Fisheries

outside territorial waters around the Faroe Islands and
Iceland, Great Britain and Denmark signed on June 24,
1901, the Convention of London,1 whose stipulations land.
are for the most part literally the same as those of the
International Convention for the Regulation of the
Fisheries in the North Sea, concluded at the Hague in
1882. 2 The additional article of this Convention of
London stipulates that any other State whose subjects
fish around the Faroe Islands and Iceland may accede
to it.
VII
TELEGRAPH CABLES IN THE OPEN SEA
Bonfils, No. 583— Despagnet, No. 401— Pradier-Fodere, V. No. 2548—

Merignhac, II. p. 532— Nys, II. p. 170— Rivier, I. pp. 244 and 386—
Fiore, II. No. 822, and Code, Nos. 1134-1137— Stoerk in Holtzendorff,
II. pp. 507-508— Liszt, § 29— Ullmann, § 103— Lauterbach, "Die
Beschadigung unterseeischer Telegraphenkabel " (1889) — Landois, "Zur
Lehre vom volkerrechtlichen Schutz der submarinen Telegraphenkabel "
(1894) — Jouhannaud, " Les cables sous-marins " (1904) — Renault, in R.I.
XII. (1880), p. 251, XV. (1883), p. 17. See also the literature quoted
below, vol. II., at the commencement of § 214.
§ 286. It is a consequence of the freedom of the Telegraph

Open Sea that no State can prevent another from laying
telegraph and telephone cables in any part of the Open
Sea, whereas no State need allow this within its terri-
torial maritime belt. As numerous submarine cables
have been laid, the question as to their protection arose.
Already in 1869 the United States proposed an inter-
national convention for this purpose, but the matter
1 See Martens, N.R.G-. 2nd Ser. 2 See above, § 282.
XXXIII. (1906), p. 268.
VOL. I. Z
354 THE OPEN SEA
dropped in consequence of the outbreak of the Franco-

German war. The Institute of International Law took
up the matter in 1879 1 and recommended an inter-
national agreement. In 1882 France invited the Powers
to an International Conference at Paris for the purpose
of regulating the protection of submarine cables. This
conference met in October 1882, again in October 1883,
and produced the " International Convention for the
Protection of Submarine Telegraph Cables " which was
signed at Paris on April 16, 1884.2
The signatory Powers are :— Great Britain, Argen-
tina, Austria-Hungary, Belgium, Brazil, Colombia, Costa
Rica, Denmark, San Domingo, France, Germany, Greece,
Guatemala, Holland, Italy, Persia, Portugal, Eoumania,
Russia, Salvador, Servia, Spain, Sweden-Norway, Turkey,
the United States, and Uruguay. Colombia and Persia
did not ratify the treaty, but, on the other hand, Japan
acceded to it later on.
interna- § 287. The protection afforded to submarine tele-
Protection graph cables finds its expression in the following stipu-
marine lations of this international treaty :—
Telegraph (1) Intentional or culpably negligent breaking or
damaging of a cable in the Open Sea is to be punished
by all the signatory Powers,3 except in the case of such
damage having been caused in the effort of self-preserva-
tion (article 2).
(2) Ships within sight of buoys indicating cables
which are being laid or which are damaged must keep
at least a quarter of a nautical mile distant (article 6).
(3) For dealing with infractions of the interdictions
and injunctions of the treaty the Courts of the flag
State of the infringing vessel are exclusively com-
petent (article 8).
(4) Men-of-war of all signatory Powers have a right
1 See Annuaire, III. pp. 351-394. 3 See the Submarine Telegraph
2 See Martens, N.K.G. 2nd Ser. Act, 1885 (48 & 49 Viet. c. 49).
XI. p. 281.
WIRELESS TELEGEAPHY ON THE OPEN SEA 355
to stop and to verify the nationality of merchantmen of

all nations which are suspected of having infringed the
regulations of the treaty (article 10).
(5) All stipulations are made for the time of peace
only and in no wise restrict the action of belligerents
during time of war.1
VIII
WIKELESS TELEGRAPHY ON THE OPEN SEA
Bonfils, Nos. 531 10. u— Despagnet, 433 2««te»-— Liszt, § 29— Ullmann, § 147—
Meili, "Die drahtlose Telegraphic, &c." (1908)— Schneeli, "Drahtlose
Telegraphic und Volkerrecht " (1908) — Landsberg, " Die drahtlose Tele-
graphic" (1909) — Kausen, " Die drahtlose Telegraphic im Volkerrecht"
(1910)— Holland in R.G. XIII. (1906), pp. 58-92— Fauchille in Annuaire,
XXI. (1906), pp. 76-87— Meurer and Boidin in R.G. XVI. (1909), pp. 76
and 261.
§ 287a. To secure radio-telegraphic 2 communication Radio-

between ships of all nations at sea and the continents, beween J
a Conference met at Berlin in 1906, where Great Britain,
Germany, the United States of America, Argentina,
Austria-Hungary, Belgium, Brazil, Bulgaria, Chili, Den-
mark, Spain, France, Greece, Italy, Japan, Mexico,
Monaco, Norway, Holland, Persia, Portugal, Koumania,
Russia, Sweden, Turkey, and Uruguay were repre-
sented, and where was signed on November 3, 1906,
the International Radio-telegraphic Convention.3 This
Convention, which consists of twenty-three articles, is
accompanied by a Final Protocol, comprising six im-
1 See below, vol. II. § 214, and art. III. (1910), p. 147. But not all the
54 of the Hague rules concerning signatory Powers have as yet ratified
land warfare which enacts :— ' ' Sub- the Convention, ratification having
marine cables connecting a territory been given hitherto only by Great
occupied with a neutral territory Britain, Austria-Hungary, Belgium,
shall not be seized or destroyed Brazil, Bulgaria, Denmark, France,
except in the case of absolute Germany, Japan, Mexico, Monaco,
necessity. They also must be re- Holland, Norway, Portugal, Rou-
stored and indemnities for them mania, Russia, Spain, Sweden and
regulated at the peace." Turkey ; and Tunis acceded to it.
2 See above, § 173, and below, §§ Italy has reserved ratification on
464 and 582, No. 4. account of her relations with the
3 See Martens, N.R.G. 3rd Ser. Marconi Wireless Telegraphy Co.
356 THE OPEN SEA
portant articles, and by Service Regulations, embodying

fifty-two articles. The more important stipulations of
the Convention are the following :— Coast Stations and
ships are bound to exchange radio-telegrams reciprocally
without regard to the particular system of radio-tele-
graphy adopted by them (article 3). Each of the con-
tracting parties undertakes to cause its coast stations
to be connected with the telegraph system by means of
special wires, or at least to take such other measures as
will ensure an expeditious exchange of traffic between
the coast stations and the telegraph system (article 5).
Radio-telegraph stations are bound to accept with ab-
solute priority calls of distress from ships, to answer
such calls with similar priority, and to take the neces-
sary steps with regard to them (article 9). An Inter-
national Bureau shall be established with the duty of
collecting, arranging, and publishing information of
every kind concerning radio-telegraphy, and for some
other purposes mentioned in article 13.
Radio- § 2876. To secure radio-telegraphic communication
between 7 between such ships at sea as possess installations for
seaps at wireless telegraphy, an Additional Convention * to that
mentioned above in § 287a was signed on November 3,
1906, by all the Powers who signed the forementioned
Convention except by Great Britain, Italy, Japan,
Mexico, Persia, and Portugal. According to this addi-
tional Convention all ships at sea which possess radio-
telegraphic installations are compelled to exchange
radio-telegrams reciprocally at all times without regard
to the particular system of radio-telegraphy adopted.
It is to be hoped that in time all the Powers will
accede to this Additional Convention, for its stipulation
is of great importance in cases of shipwreck. If ships
at sea can refuse to exchange radio-telegrams, it is im-
1 See Martens, N.R.G. 3rd Ser. vention likewise has not yet been
III. (1910), p. 168. But this Con- ratified by all the signatory Powers.
THE SUBSOIL BENEATH THE SEA BED 357
possible for them to render one another assistance. It

ought not to be possible for the following case l to occur,
to which attention was drawn at the Berlin Conference
by the delegate of the United States of America :— The
American steamer Lebanon had received orders to search
the Atlantic for a wrecked vessel which offered great
danger to navigation. The Lebanon came within com-
municating reach of the liner Vaderland, and inquired
by wireless telegraphy whether the Vaderland had seen
the wreck. The Vaderland refused to reply to this
question, on the ground that she was not permitted to
enter into communication with a ship provided with a
wireless apparatus other than the Marconi.
IX
THE SUBSOIL BENEATH THE SEA BED
§ 287c. The subsoil beneath the bed of the Open Sea Five rules
requires special consideration on account of coal or fog t£T
other mines, tunnels, and the like, for the question is
whether such buildings can be driven into that subsoil the sea
at all, and, if this can be done, whether they can be
under the territorial supremacy of a particular State.
The answer depends entirely upon the character in law
of such subsoil. If the rules concerning the territorial
subsoil 2 would have analogously to be applied to the
subsoil beneath the bed of the Open Sea, all rules con-
cerning the Open Sea would necessarily have to be
applied to the subsoil beneath its bed, and no part of
this subsoil could ever come under the territorial supre-
macy of any State. It is, however, submitted 3 that it
would not be rational to consider the subsoil beneath
1 See Hazeltine, " The Law of the 3 See Oppenheimin Z.V. II. (1908),
Air" (1911), p. 101. p. 11.
2 See above, §§ 173, 175.
358 THE OPEN SEA
the bed of the Open Sea an inseparable appurtenance

of the latter, such as the subsoil beneath the territorial
land and water is. The rationale of the Open Sea
being free and for ever excluded from occupation on the
part of any State is that it is an international highway
which connects distant lands and thereby secures free-
dom of communication, and especially of commerce,
between such States as are separated by the sea.1
There is no reason whatever for extending this freedom
of the Open Sea to the subsoil beneath its bed. On the
contrary, there are practical reasons — taking into con-
sideration the building of mines, tunnels, and the like
—which compel the recognition of the fact that this
subsoil can be acquired through occupation. The fol-
lowing five rules recommend themselves concerning
this subject :—
(1) The subsoil beneath the bed of the Open Sea is
no man's land, and it can be acquired on the part of
a littoral State through occupation, starting from the
subsoil beneath the bed of the territorial maritime belt.
(2) This occupation takes place ipso facto by a tunnel
or a mine being driven from the shore through the sub-
soil of the maritime belt into the subsoil of the Open Sea.
(3) This occupation of the subsoil of the Open Sea can
be extended up to the boundary line of the subsoil of
the territorial maritime belt of another State, for no
State has an exclusive claim to occupy such part of
the subsoil of the Open Sea as is adjacent to the subsoil
of its territorial maritime belt.
(4) An occupation of the subsoil beneath the bed of
the Open Sea for a purpose which would endanger the
freedom of the Open Sea is inadmissible.
(5) It is likewise inadmissible to make such arrange-
ments in a part of the subsoil beneath the Open Sea
which has previously been occupied for a legitimate
purpose as would indirectly endanger the freedom of

the Open Sea.
If these five rules are correct, there is nothing in
the way of coal and other mines which are being ex-
ploited on the shore of a littoral State being extended
into the subsoil beneath the Open Sea up to the boun-
dary line of the subsoil beneath the territorial maritime
belt of another State. Further, a tunnel which might
be built between such two parts of the same State —
for instance, between Ireland and Scotland — as are
separated by the Open Sea would fall entirely under
the territorial supremacy of the State concerned. On
the other hand, for a tunnel between two different
States separated by the Open Sea special arrangements
by treaty would have to be made concerning the terri-
torial supremacy over that part of the tunnel which
runs under the bed of the Open Sea.
§ 2Sld. Since there is as yet no submarine tunnel in The
existence, it is of interest to give some details concern-
ing the project of a Channel Tunnel 1 between Dover Tunnel
and Calais, and the preliminary arrangements between
France and England concerning it. Already some
years before the Franco-German War the possibility of
such a tunnel was discussed, but it was not until 1874
that the first preliminary steps were taken. The sub-
soil of the Channel was geologically explored, plans were
worked out, and a shaft of more than a mile long was
tentatively bored from the English shore. And in 1876
an International Commission, appointed by the English
and French Governments, and comprising three French
and three English members, made a report on the con-
struction and working of the proposed tunnel.2 The
report enclosed a memorandum, recommended by the
1 See Oppenheim in Z.V. II. 1576, Report of the Commissioners
(1908), pp. 1-16 ; Robin in R.G. XV. for the Channel Tunnel and Railway,
(1908), pp. 50-77 ; and Liszt, § 26. 1876.
2 See Parliamentary Papers, C.
360 THE OPEN SEA
Commissioners to be adopted as the basis of a treaty

between Great Britain and France concerning the
tunnel, the juridically important articles of which are
the following :—
(Article 1) The boundary between England and
France in the tunnel shall be half-way between low-
water mark (above the tunnel) on the coast of England,
and low-water mark (above the tunnel) on the coast of
France. The said boundary shall be ascertained and
marked out under the direction of the International
Commission to be appointed, as mentioned in article 4,
before the Submarine Eailway is opened for public
traffic. The definition of boundary provided for by
this article shall have reference to the tunnel and Sub-
marine Railway only, and shall not in any way affect
any question of the nationality of, or any rights of
navigation, fishing, anchoring, or other rights in, the
sea above the tunnel, or elsewhere than in the tunnel
itself.
(Article 4) There shall be constituted an Interna-
tional Commission to consist of six members, three of
whom shall be nominated by the British Government
and three by the French Government ,
The International Commission shall . . . submit to

the two Governments its proposals for Supplementary
Conventions with respect — (a) to the apprehension and
trial of alleged criminals for offences committed in the
tunnel or in trains which have passed through it, and
the summoning of witnesses ; (b) to customs, police,
and postal arrangements, and other matters which it
may be found convenient so to deal with.
(Article 15) Each Government shall have the right
to suspend the working of the Submarine Railway and
the passage through the tunnel whenever such Govern-
ment shall, in the interest of its own country, think

necessary to do so. And each Government shall have
power, to be exercised if and when such Government
may deem it necessary, to damage or destroy l the works
of the tunnel or Submarine Eailway, or any part of
them, in the territory of such Government, and also
to flood the tunnel with water.
In spite of this elaborate preparation the project
could not be realised, since public opinion in England
was for political reasons opposed to it. And although
several times since— in 1880, 1884, 1888, and 1908-
steps were again taken in favour of the proposed tunnel,
public opinion in England remained hostile and the
project has had for the time to be abandoned. It is,
however, to be hoped and expected that ultimately the
tunnel will be built when the political conditions which
are now standing in the way of its realisation have
undergone a change.
1 This stipulation was proposed in Channel Tunnel in time of war, see
the interest of defence in time of Oppenheim in Z.V. II. (1908), pp.
war. As regards the position of a 13-16.
CHAPTER III
INDIVIDUALS
I
POSITION OF INDIVIDUALS IN INTERNATIONAL LAW
Lawrence, § 42— Taylor, § 171— Heffter, § 58— Stoerk in Holtzendorff, II. pp.
585-592— Gareis, § 53— Liszt, §§ 5 and 11— Ullmann, § 107— Bonfils, Nos.
397-409— Despagnet, No. 328— Merignhac, II. pp. 169-172— Pradier-
Foddre", I. Nos. 43-49— Fiore, II. Nos. 568-712— Martens, I. §§ 85-86—
Jellinek, " System der subjectiven offentlichen Rechte" (1892), pp. 310-
314 — Heilborn, " System," pp. 58-138 — Kaufmanu, " Die Rechtskraft des
International Rechtes " (1899) — Buonvino, " Diritto e personality
giuridica internazionale " (1910)— Rehm and Adler in Z.V. II. (1908), pp.
53-55 and 614-618— Kohler in Z.V. III. (1909), pp. 209-230— Diena in
R.G. XVI. (1909), pp. 57-76.
import- § 288. The importance of individuals to the Law

incu-0f °^ Nations is just as great as that of territory, for
mdividuals are the personal basis of every State. Just
Nations, as a State cannot exist without a territory, so it cannot
exist without a multitude of individuals who are its
subjects and who, as a body, form the people or the
nation. The individuals belonging to a State can and
do come in various ways in contact with foreign States
in time of peace as well as of war. The Law of Nations
is therefore compelled to provide certain rules regard-
ing individuals.
indi- § 289. Now, what is the position of individuals in
neterSub- International Law according to these rules ? Since
Lats<offthe *ke ^jaw °^ Nations is a law between States only and
Nations, exclusively, States only and exclusively1 are subjects
of the Law of Nations. How is it, then, that, although
individuals are not subjects of the Law of Nations,
1 See above, §§ 13 and 63.
THEIR POSITION IN INTERNATIONAL LAW 363
they have certain rights and duties in conformity with

or according to International Law ? Have not mon-
archs and other heads of States, diplomatic envoys, and
even simple citizens certain rights according to the
Law of Nations whilst on foreign territory ? If we look
more closely into these rights, it becomes quite obvious
that they are not given to the favoured individual by
the Law of Nations directly. For how could Inter-
national Law, which is a law between States, give rights
to individuals concerning their relations to a State ?
What the Law of Nations really does concerning indi-
viduals, isto impose the duty upon all the members
of the Family of Nations to grant certain privileges
to such foreign heads of States and diplomatic envoys,
and certain rights to such foreign citizens as are on
their territory. And, corresponding to this duty, every
State has by the Law of Nations a right to demand that
its head, its diplomatic envoys, and its simple citizens
be granted certain rights by foreign States when on
their territory. Foreign States granting these rights
to foreign individuals do this by their Municipal Laws,
and these rights are, therefore, not international rights,
but rights derived from Municipal Laws. International
Law is indeed the background of these rights in so far
as the duty to grant them is imposed upon the single
States by International Law. It is therefore quite
correct to say that the individuals have these rights in
conformity with or according to International Law, if
it is only remembered that these rights would not exist
had the single States not created them by their Muni-
cipal Law.
And the same is valid as regards special rights of
individuals in foreign countries according to special
international treaties between two or more Powers.
Although such treaties mostly speak of rights which
individuals shall have as derived from the treaties them-
364 INDIVIDUALS
selves, this is nothing more than an inaccuracy of lan-

guage. In fact, such treaties do not create these rights,
but they impose the duty upon the contracting States of
calling these rights into existence by their Municipal
Laws.1
Again, in those rare cases in which States stipulate
by international treaties certain favours for individuals
other than their own subjects, these individuals do not
acquire any international rights under these treaties.
The latter impose the duty only upon the State whose
subjects these individuals are of calling those favours
into existence by its Municipal Law. Thus, for example,
when articles 5, 25, 35, and 44 of the Treaty of Berlin,
1878, made it a condition of the recognition of Bulgaria,
Montenegro, Servia, and Roumania, that these States
should not impose any religious disability upon their
subjects, the latter did not thereby acquire any inter-
national rights. Another instructive example 2 is fur-
nished byarticle 5 of the Peace Treaty of Prague, 1866,
between Prussia and Austria, which stipulated that
the northern district of Schleswig should be ceded by
Prussia to Denma.rk in case the inhabitants should by
a plebiscite vote in favour of such cession. Austria, no
doubt, intended to secure by this stipulation for the
inhabitants of North Schleswig the opportunity of
voting in favour of their union with Denmark. But
these inhabitants did not thereby acquire any inter-
national right. Austria herself acquired only a right
to insist upon Prussia granting to the inhabitants the
opportunity of voting for the union with Denmark.
Prussia, however, intentionally neglected her duty,
Austria did not insist upon her right, and finally relin-
quished itby the Treaty of Vienna of 1878.3
1 The whole matter is treated with 3 It ought to be mentioned that
great lucidity by Jellinek, " System the opinion presented in the text
der subjectiven offentlichen Rechte " concerning the impossibility for
(1892), pp. 310-314, and Heilborn, individuals to be subjects of Inter-
•' System," pp. 58-138. national Law, which is now mostly
2 See Heilborn, " System," p. 67. upheld, is vigorously opposed by
Now it is maintained1 that, although individuals

cannot be subjects of International Law, they can
nevertheless acquire rights and duties from International
Law. But it is impossible to find a basis for the exis-
tence of such rights and duties. International rights
and duties they cannot be, for international rights and
duties can only exist between States. Likewise they
cannot be municipal rights, for municipal rights and
duties can only be created by Municipal Law. The
opponents answer that such rights and duties never-
theless exist, and quote for example articles 4 and 5 of
Convention XII. (concerning the establishment of an
International Prize Court) of the second Hague Peace
Conference, according to which individuals have a right
to bring an appeal before the International Prize Court.
But is this a real right ? Is it not more correct to say
that the home States of the individuals concerned have
a right to demand that these individuals can bring the
appeal before the Court ? Wherever International Law
creates an independent organisation, such as the Inter-
national Prize Court at the Hague or the European
Danube Commission and the like, certain powers and
claims must be given to the Courts and Commissions
and the individuals concerned, but these powers and
claims, and the obligations deriving therefrom, are neither
international nor municipal rights and duties : they
are powers, claims, and obligations existing only within
the organisations concerned. To call them rights and
duties — as indeed the respective treaties frequently do
—is a laxity of language which is quite tolerable as long
as one remembers that they neither comprise any rela-
tions between States nor any claims and obligations
within the province of Municipal Law.
§ 290. But what is the real position of individuals viduals
indi-
Kaufmann, "Die Rechtskraft des pp. 57-76 ; Rehm and-Adler in Z.V.
internationalen Rechtes" (1899), §§ I. (1908), pp. 53 and 614 ; Liszt,! § 5;
1-4, and a few others. Kohler in Z.V." II. (1909), pp. 209-
1 See Diena in R.G. XVI. (1909), 230.
366 INDIVIDUALS
objects in International Law, if they are not subjects thereof ?

Lawof The answer can only be that they are objects of the
Nations. Law of Nations. They appear as such from many
different points of view. When, for instance, the Law
of Nations recognises the personal supremacy of every
State over its subjects at home and abroad, these
individuals appear just as much objects of the Law
of Nations as the territory of the States does in conse-
quence of the recognised territorial supremacy of the
States. When, secondly, the recognised territorial
supremacy of every State comprises certain powers
over foreign subjects within its boundaries without
their home State's having a right to interfere, these
individuals appear again as objects of the Law of
Nations. And, thirdly, when according to the Law
of Nations any State may seize and punish foreign
pirates on the Open Sea, or when belligerents may
seize and punish neutral blockade-runners and carriers
of contraband on the Open Sea without their home
State's having a right to interfere, individuals appear
here too as objects of the Law of Nations.1
Nation- § 291. If, as stated, individuals are never subjects
i!^nkthe k^ always objects of the Law of Nations, then nation-
between a\^y [s the link between this law and individuals. It
is through the medium of their nationality only that
individuals can enjoy benefits from the existence of
Nations. ê âw of Nations. This is a fact which has its conse-
quences over the whole area of International Law.2
Such individuals as do not possess any nationality enjoy
no protection whatever, and if they are aggrieved by
a State they have no way of redress, there being no
State which would be competent to take their case in
1 Westlake, Chapters, p. 2, main- based. The correct standpoint is
tains that in these cases individuals taken up by Lorimer, II. p. 131, and
appear as subjects of International Holland, "Jurisprudence," p. 341.
Law ; but I cannot understand upon 2 See below, § 294.
what argument this assertion is
hand. As far as the Law of Nations is concerned,

apart from morality, there is no restriction whatever to
cause a State to abstain from maltreating to any extent
such stateless individuals.1 On the other hand, if
individuals who possess nationality are wronged abroad,
it is their home State only and exclusively which has
a right to ask for redress, and these individuals them-
selves have no such right. It is for this reason that
the question of nationality is a very important one for
the Law of Nations, and that individuals enjoy benefits
from this law not as human beings but as subjects of
such States as are members of the Family of Nations.
And so distinct is the position as subjects of these
members from the position of stateless individuals and
from subjects of States outside the Family of Nations,
that it has been correctly characterised as a kind of
international " indigenousness," a Volkerrechts-Indi-
genat* Just as municipal citizenship procures for an
individual the enjoyment of the benefits of the Muni-
cipal Laws, so this international " indigenousness," ,
which is a necessary inference from municipal citizen-
ship, procures the enjoyment of the benefits of the
Law of Nations.
§ 292. Several writers 3 maintain that the Law of The Law
Nations guarantees to every individual at home and
abroad the so-called rights of mankind, without re-
garding whether an individual be stateless or not, or
whether he be a subject of a member-State of the
Family of Nations or not. Such rights are said to
comprise the right of existence, the right to protection
of honour, life, health, liberty, and property, the right
of practising any religion one likes, the right of emi-
gration, and the like. But such rights do not in fact
1 See below, § 312. Martens, I. §§ 85 and 86 ; Fiore, I.
2 See Stoerk in Holtzendorfi, II. Nos. 684-712, and Code, Nos. 614-
p. 588. 669 ; Bonfils, No. 397, and others.
3 Bluntschli, §§ 360-363 and 370 ;
368 INDIVIDUALS
enjoy any guarantee whatever from the Law of Nations,1

and they cannot enjoy such guarantee, since the Law
of Nations is a law between States, and since individuals
cannot be subjects of this law. But there are certain
facts which cannot be denied at the background of this
erroneous opinion. The Law of Nations is a product
of Christian civilisation and represents a legal order
which binds States, chiefly Christian, into a community.
It is therefore no wonder that ethical ideas which are
some of them the basis of, others a development from,
Christian morals, have a tendency to require the help
of International Law for their realisation. When the
Powers stipulated at the Berlin Congress of 1878 that
the Balkan States should be recognised only under the
condition that they did not impose any religious dis-
abilities on their subjects, they lent their arm to the
realisation of such an idea. Again, when the Powers
after the beginning of the nineteenth century agreed
to several international arrangements in the interest
of the abolition of the slave trade,2 they fostered the
realisation of another of these ideas. And the innum-
erable treaties between the different States as regards
extradition of criminals, commerce, navigation, copy-
right, and the like, are inspired by the idea of affording
ample protection to life, health, and property of indi-
viduals. Lastly, there is no doubt that, should a State
venture to treat its own subjects or a part thereof with
1 The matter is treated with great General Act of the Congo Conference
lucidity by Heilborn, "System," pp. of Berlin, 1885, whose article 9 deals
83-138. with the slave trade ; (3) the General
2 It is incorrect to maintain that Act of the anti-slavery Conference
the Law of Nations has abolished of Brussels, 1890, which is signed
slavery, but there is no doubt that by Great Britain, Austria-Hungary,
the conventional Law of Nations has Belgium, the Congo Free State,
tried to abolish the slave trade. Denmark, France, (see, however,
Three important general treaties below, § 517), Germany, Holland,
have been concluded for that pur- Italy, Luxemburg, Persia, Portugal,
pose during the nineteenth century, Russia, Spain, Sweden, Norway, the
since the Vienna Congress— namely, United States, Turkey, and Zanzibar.
(1) the Treaty of London, 1841, See Queneuil, "De la traite des
between Great Britain, Austria, noirs et de I'esclavage " (1907).
France, Prussia, and Russia ; (2) the
NATIONALITY 369
such cruelty as would stagger humanity, public opinion

of the rest of the world would call upon the Powers to
exercise intervention1 for the purpose of compelling
such State to establish a legal order of things within its
boundaries sufficient to guarantee to its citizens an
existence more adequate to the ideas of modern civilisa-
tion. However, a guarantee of the so-called rights of
mankind cannot be found in all these and other facts.
Nor do the actual conditions of life to which certain
classes of subjects are forcibly submitted within certain
States show that the Law of Nations really comprises
such guarantee.2
II
NATIONALITY
Vattel, I. §§ 220-226— Hall, §§ 66 and 87— Westlake, I. pp. 213, 231-233—

Halleck, I. p. 401— Taylor, §§ 172-178— Moore, III. §§ 372-376—
Bluntschli, §§ 364-380— Stoerk in Holtzendorff, II. pp. 630-650— Gareis,
§ 54— Liszt, § 11— Ullmann, § 108— Bonfils, Nos. 433-454— Despagnet,
Nos. 329-333— Pradier-Fode"re", III. No. 1645— Rivier, I. p. 303— Nys, II.
pp. 214-220, 229-237— Calvo, II. §§ 539-540— Fiore, I. Nos. 644-658,
684-717, and Code, Nos. 638-641— Martens, I. §§ 85-87— Hall, " Foreign
Powers and Jurisdiction" (1894), § 14 — Cogordan, "La nationality au
point de vue des rapports international^ " (2nd ed. 1890) — Gargas in
Z.V. V. (1911), pp. 278-316 and ...
§ 293. Nationality of an individual is his quality of conoep-

being a subject of a certain State and therefore its Nation-
citizen. It is not for International but for Municipal ality-
Law to determine who is and who is not to be con-
sidered a subject. And therefore it matters not, as
far as the Law of Nations is concerned, that Municipal
Laws may distinguish between different kinds of sub-
1 See above, § 137. to the spirit of article 44 of the
3 The reader may think of the sad Treaty of Berlin of 1878, a right of
position of the Jews within the intervention, shows even more clearly
Russian Empire. The treatment of that the Law of Nations does not
the native Jews in Roumania, guarantee what are called rights of ,
although the Powers have, according mankind. See below, § 312.
VOL. I, 2A
370 INDIVIDUALS
jects — for instance, those who enjoy full political rights

and are on that account named citizens, and those who
are less favoured and are on that account not named
citizens. Nor does it matter that according to the
Municipal Laws a person may be a subject of a part
of a State, for instance of a colony, but not a subject
of the mother-country, provided only such person
appears as a subject of the mother-country as far as
the latter's international relations are concerned. Thus,
a person naturalised in a British Colony is for all inter-
national purposes a British subject, although he may
not have the rights of a British subject within the United
Kingdom itself.1 For all international purposes, all
distinctions made by Municipal Laws between subjects
and citizens and between different kinds of subjects
have neither theoretical nor practical value, and the
terms " subject " and " citizen " are, therefore, synony-
mously made use of in the theory and practice of Inter-
national Law.
But it must be emphasised that nationality as citizen-
ship of a certain State must not be confounded with
nationality as membership of a certain nation in the
sense of a race. Thus, all Englishmen, Scotchmen, and
Irishmen are, despite their different nationality as
regards their race, of British nationality as regards
their citizenship. Thus, further, although all Polish
individuals are of Polish nationality qua race, they
have been, since the partition of Poland at the end of
the eighteenth century between Kussia, Austria, and
Prussia, either of Russian, Austrian, or German nation-
ality qua citizenship.
§ 294' Jt wil1 be remembered that nationality is
ality. i gee below, § 307, and Hall, a real naturalisation. But this
" Foreign Powers and Jurisdiction," decision is based on the Code Civil of
§ 20, who quotes, however, a decision France and has nothing to do with
of the French Cour de Cassation the Law of Nations. See also
according to which naturalisation in Westlake, I. pp. 231-233.
a British Colony does not constitute
NATIONALITY 371
the link between individuals and the benefits of the

Law of Nations.1 This function of nationality becomes
apparent with regard to individuals abroad, or property
abroad of individuals who themselves are within the
territory of their home State. Through one particular
right and one particular duty of every State towards
all other States this function of nationality becomes
most conspicuous. The right is that of protection over
its citizens abroad which every State holds and occa-
sionally vigorously exercises towards other States ; it
will be discussed in detail below, § 319. The duty, on
the other hand, is that of receiving on its territory such
citizens as are not allowed to remain 2 on the territory
of other States. Since no State is obliged by the Law
of Nations to allow foreigners to remain within its
boundaries, it may, for many reasons, happen that
certain individuals are expelled from all foreign coun-
tries. The home State of those expelled cannot refuse
to receive them on the home territory, the expelling
States having a claim on the home State that the latter
do receive the expelled individuals.3
§ 295. Although nationality alone is the regular so-caiied
means through which individuals can derive benefit fncftf
from the Law of Nations, there are two exceptional f™*°o Sub-
cases in which individuals may come under the inter-
national protection of a State without these individuals
being really its subjects. It happens, first, that a State
undertakes by an international agreement the diplo-
matic protection of another State's citizens abroad, and
1 See above, § 291. request them to come home for the
2 See below, § 326. purpose of rendering military service,
3 Beyond the right of protection can punish them for crimes com-
and the duty to receive expelled mitted abroad, can categorically
citizens at home, the powers of a request them to come home for good
State over its citizens abroad in con- (so-called jus avocandi). And no
sequence of its personal supremacy State has a right forcibly to retain
illustrate the function of nationality. foreign citizens called home by their
(See above, § 124.) Thus, the home home State, or to prevent them from
State can tax citizens living abroad paying taxes to their home State,
in the interest of home finance, can and the like.
372 INDIVIDUALS
in this case the protected foreign subjects are named

" proteges " of the protecting States. Such agreements
are either concluded for a permanency as in the case of a
small State, Switzerland for instance, having no diplo-
matic envoy in a certain foreign country where many
of its subjects reside, or in time of war only, a belli-
gerent handing over the protection of its subjects in
the enemy State to a neutral State.
It happens, secondly, that a State promises diplo-
matic protection within the boundaries of Turkey and
other Oriental countries to certain natives. Such pro-
tected natives are likewise named protege's, but they
are also called " de facto subjects " of the protecting
State. The position of these proteges is quite anoma-
lous, it is based on custom and treaties, and no
special rules of the Law of Nations itself are in exis-
tence concerning such de facto subjects. Every State
which takes such de facto subjects under its protection
can act according to its discretion, and there is no
doubt that as soon as these Oriental States have reached
a level of civilisation equal to that of the Western
members of the Family of Nations, the whole institu-
tion of the de facto subjects will disappear.
Concerning the exercise of protection in Morocco, a
treaty l was concluded at Madrid on July 3, 1880, signed
by Morocco, Great Britain, Austria-Hungary, Belgium,
France, Germany, Holland, Italy, Portugal, Spain,
Sweden-Norway, and the United States of America,
which sanctions the stipulations of the treaty of 1863
between France and Morocco concerning the same
subject. According to this treaty the term " protege"
embraces 2 in relation to States of Capitulations only
1 See Martens, N.R.G. 2nd Ser. VI. Britain concerning the Muscat
(1881), p. 624. Dhows.
2 See p. 56 of the official publica- It is of interest to note that the
tion of the Award, given in 1905, Court considers it a fact that the
of the Hague Court of Arbitration Powers have no longer the right to
in the case of France v. Great create prot&jfa in unlimited numbers
NATIONALITY 373
the following classes of persons :— (1) Persons being

subjects of a country which is under the protectorate
of the Power whose protection they claim ; (2) indi-
viduals corresponding to the classes enumerated in the
treaties with Morocco of 1863 and 1880 and in the
Ottoman law of 1863 ; (3) persons, who under a special
treaty have been recognised as proteges like those
enumerated by article 4 of the French Muscat Con-
vention of 1844 ; and (4) those individuals who can
establish that they had been considered and treated
as proteges by the Power in question before the year
in which the creation of new proteges was regulated
and limited — that is to say, before the year 1863, these
individuals not having lost the status they had once
legitimately acquired.
§ 296. As emigration comprises the voluntary re- Nation-
moval of an individual from his home State with the
intention of residing abroad, but not necessarily with tion-
the intention of renouncing his nationality, it is obvious
that emigrants may well retain their nationality. Emi-
gration isin fact entirely a matter of internal legis-
lation of the different States. Every State can fix for
itself the conditions under which emigrants lose or
retain their nationality, as it can also prohibit emigra-
tion altogether, or can at any moment request those
who have emigrated to return to their former home,
provided the emigrants have retained their nationality
of birth. And it must be specially emphasised that
the Law of Nations does not and cannot grant
a right of emigration to every individual, although
it is frequently maintained that it is a " natural "
in any of the Oriental States, for the has been abandoned also in relation
Award states on p. 56 :— " Although to other Oriental States, analogy
the Powers have expressis verbis re- having always been recognised as a
signed the exercise of the pretended means to complete the very deficient
right to create 'proteges' in unwritten regulations of the capitula-
limited number only in relation to tions as far as circumstances are
Turkey and Morocco, nevertheless analogous."
the exercise of this pretended right
374 INDIVIDUALS
right of every individual to emigrate from his own

State.1
Ill
MODES OF ACQUIRING AND LOSING NATIONALITY

Vattel, I. §§ 212-219 -Hall, §§ 67-72— Westlake, I. pp. 213X^20— Lawrence,
§§ 94-95— Halleck, I. pp. 402-418— Moore, III. Sf 372-473— Taylor,
§§ 176-183— Walker, § 19— Bluntschli, §§ 364-3<#— Hartnmnn, § 81—
Heffter, § 59— Stoerk in Holtzendorff, II. pp. 502-630— Gareis, § 55—
Liszt, § 11— Ullmann, §§ 110 and 112— Bonfils, $fos. 417-432— Despagnet,
Nos. 318-327— Pradier-Fodere, III. Nos. 1640^1691— Rivier, I. pp. 303-
306— Calvo, II. §§ 541-654, VI. §§ 92-117— Martens, II. §§ 44-48— Fiore,
Code, Nos. 660-669— Foote, " Private International Jurisprudence " (3rd
ed. 1904), pp. 1-52— Dicey, "Conflict of Laws" (1896), pp. 173-204—
Martitz, " Das Recht der Staatsangehorigkeit irn internationalen
Verkehr" (1885)— Cogordan, "La nationality &c " (2nd ed. 1890), pp.
21-116, 317-400— Lapradelle, "De la nationality d'origine" (1893)—
Berney, "La nationality h, PInstitut de Droit International" (1897)—
Bisocchi, "Acquisto e perdita della Nazionalita, &c." (1907)— Sieber,
"Das Staatsburggerecht in internationalera Verkehr," 2 vols. (1907) —
Lehr, " La nationalite dans les principaux e"tats du globe" (1909), and
in R.I. 2nd Ser. X. (1908), pp. 285, 401, and 525.
In 1893 the British Government addressed a circular to its representatives
abroad requesting them to send in a report concerning the laws relating
to nationality and naturalisation in force in the respective foreign
countries. These reports have been collected and presented to
Parliament. They are printed in Martens, N.R.G. 2nd Ser. XIX. pp.
515-760.
Five
Modes of § 297. Although it is for Municipal Law to deter-
Acquisi- mine who is and who is not a subject of a State, it is
tion of
Nation- nevertheless of interest for the theory of the Law of
ality.
Nations to ascertain how nationality can be acquired
according to the Municipal Law of the different States.
The reason of the thing presents fivjejgosgWejaodes^ of
acquiring nationality, and, although no State is obliged
to recognise all five, nevertheless all States practically
do recognise them. They are birth, naturalisation,
redintegration, subjugation, and cession.
1 Attention ought to be drawn to of fourteen principles concerning
the fact that, to ensure the protec- emigration under the heading " Voeux
tion of the interests of emigrants and relatifs h, la mature
immigrants from the moral, hygienic, see Annuaire, XVI.de (1897),
1'emigration ";
p. 276.
and economic view, the Institute of See also Gargas in Z.V. V. (1911), pp.
International Law, at its meeting at 278-316.
Copenhagen in 1897, adopted a body
MODES OF ACQUIRING AND LOSING NATIONALITY 375
§ 298. The first and chief mode of acquiring nation-

ality is by birth, for the acquisition of nationality by
another modes exceptional only, since the vast majority
of mankind acquires nationality by birth and does not
change it afterwards. But no uniform rules exist ac-
cording to the Municipal Law of the different States
concerning this matter. Some States, as Germany and
Austria, have adopted the rule that descent alone is
the decisive factor,1 so that a child born of their subjects
becomes ipso facto by birth their subject likewise, be
the child born at home or abroad. According to this
rule, illegitimate children acquire the nationality of
their mother. Other States, such as Argentina, have
adopted the rule that the territory on which birth occurs
is exclusively the decisive factor.2 According to this
rule every child born on the territory of such State,
whether the parents be citizens or aliens, becomes
a subject of such State, whereas a child born abroad
is foreign, although the parents may be subjects.
Again, other States, as Great Britain3 and the United
States, have adopted a mixed principle, since, accord-
ing to their Municipal Law, not only children of their
subjects born at home or abroad become their subjects,
but also such children of alien parents as are born on
their territory.
§ 299. The most important mode of acquiring
nationality besides birth is that of naturalisation in
the wider sense of the term. Through naturalisation
an alien by birth acquires the nationality of the natu-
ralising State. According to the Municipal Law of the
different States naturalisation may take place through
six different acts — namely, marriage, legitimation, option,
acquisition of domicile, appointment as Government
official, grant on application. Thus, according to the
1 Jus sanguinis. law on this point in Hall, " Foreign
2 Jus soli. Powers and Jurisdiction " (1894),
3 See details concerning British § 14.
376 INDIVIDUALS
Municipal Law of most States, an alien female marrying

a subject of such State becomes thereby ipso facto
naturalised. Thus, further, according to the Municipal
Law of several States, an illegitimate child born of an
alien mother, and therefore an alien himself, becomes
ipso facto naturalised through the father marrying the
mother and thereby legitimating the child.1 Thus,
thirdly, according to the Municipal Law of some States,
which declare children of foreign parents born on their
territory to be aliens, such children, if, after having
come of age, they make a declaration that they intend
to be subjects of the country of their birth, become ipso
facto by such option naturalised. Again, fourthly, some
States, such as Venezuela, let an alien become natural-
ised ipso facto by his taking his domicile 2 on their
territory. Some States, fifthly, let an alien become
naturalised ipso facto on appointment as a Government
official. And, lastly, in all States naturalisation may
be procured through a direct act on the part of the
State granting nationality to an alien who has applied
for it. This last kind of naturalisation is naturalisation
in the narrower sense of the term ; it is the most im-
portant for the Law of Nations, and, whenever one
speaks of naturalisation pure and simple, such natural-
isation through direct grant on application is meant ;
it will be discussed in detail below, §§ 303-307.
Acquisi- § 300. The third mode of acquiring nationality is
Nation- ^hat ^7 so-called redintegration or resumption. Such
tnrou h individuals as have been natural-born subjects of a
Redinte- State, but have lost their original nationality through
on" naturalisation abroad or for some other cause, may
1 English law has not adopted where the rule has been stated that
this rule. in consideration of the personal
2 It is the
whether doubtful
home (seeStateHall,of §such
64) its
supremacy
citizens of abroad
the home
no State
State over
can
individuals naturalised against their naturalise foreigners against their
will must submit to this ipso facto will.
naturalisation. See above, § 125,
MODES OF ACQUIRING AND LOSING NATIONALITY 377
recover their original nationality on their return home.

One speaks in this case of redintegration or resumption
in contradistinction to naturalisation, the favoured
person being redintegrated and resumed into his original
nationality. Thus, according to Section 10 of the
Naturalisation Act,1 1870, a widow being a natural-born
British subject, who has lost her British nationality
through marriage with a foreigner, may at any time
during her widowhood obtain a certificate of readmis-
sion to British nationality, provided she performs the
same conditions and adduces the same evidence as is
required in the case of an alien applying for naturalisa-
tion. And according to section 8 of the same Act, a
British-born individual who has lost his British nation-
ality through being naturalised abroad, may, if he
returns home, obtain a certificate of readmission to
British nationality, provided he performs the same
conditions and adduces the same evidence as is required
in the case of an alien applying for naturalisation.
§ 301. The fourth and fifth modes of acquiring A
nationality are by subjugation after conquest and by Nation-
cession of territory, the inhabitants of the subjugated through
as well as of the ceded territory acquiring ipso facto I^SS
by the subjugation or cession the nationality of the Cession.
State which acquires the territory. These modes of
acquisition of nationality are modes settled by the
customary Law of Nations ; it will be remembered
that details concerning this matter have been given
above, §§ 219 and 240.
§ 302. Although it is left in the discretion of the seven
different States to determine the grounds on which
individuals lose their nationality, it is nevertheless of
interest for the theory of the Law of Nations to take
notice of these grounds. Seven modes of losing nation-
ality must be stated to exist according to the reason
1 33 and 34 Viet. e. 14.
378 INDIVIDUALS
of the thing, although all seven are by no means recog-

nised by all the States. These modes are :— Eelease,
deprivation, expiration, option, substitution, subjuga-
tion, and cession.
(1) Release. Some States, as Germany, give their
citizens'^the right to ask to be released from their nation-
ality. Such release, if granted, denationalises the re-
leased individual.
(2) Deprivation. According to the Municipal Law
of some States, as, for instance, Bulgaria, Greece, Italy,
Holland, Portugal, and Spain, the fact that a citizen
enters into foreign civil or military service without per-
mission ofhis Sovereign deprives him of his nationality.
(3) Expiration. Some States have legislated that
citizenship expires in the cases of such of their subjects
as have emigrated and stayed abroad beyond a certain
length of time. Thus, a German ceases to be a German
subject through the mere fact that he has emigrated
and stayed abroad for ten years without having under-
taken the necessary step for the purpose of retaining
his nationality.
(4) Option. Some States, as Great Britain, which
declare a child born of foreign parents on their terri-
tory to be their natural-born subject, although he be-
comes at the same time according to the Municipal
Law of the home State of the parents a subject of
such State, give the right to such child to make, after
coming of age, a declaration that he desires to cease to
be a citizen. Such declaration of alienage creates ipso
facto the loss of nationality.
(5) Substitution. Many States, as, for instance, Great
Britain, have legislated that the nationality of their
subjects extinguishes ipso facto by their naturalisation
abroad, be it through marriage, grant on application,
or otherwise. Other States, however, as, for instance,
Germany, do not object to their citizens acquiring
NATURALISATION IN ESPECIAL 379
another nationality besides that which they already

possess.
(6) Subjugation and cession. It is a universally re-
cognised customary rule of the Law of Nations that the
inhabitants of subjugated as well as ceded territory lose
their nationality and acquire that of the State which
annexes the territory.1
IV
NATURALISATION IN ESPECIAL
Vattel, I. § 214— Hall, §§ 71-71*— Westlake, § I. pp. 225-230— Lawrence, §§ 95-

96— Phillimore, I. §§ 326-332— Halleck, I. pp. 403-410— Taylor, §§ 181-
182— Walker, § 19— Wharton, II. §§ 173-183— Moore, III. §§ 377-380
— Wheaton, § 85— Bluntschli, §§ 371-372— Ullmarm, §§ 110-111— Pradier-
Fodere, III. Nos. 1656-1659— Calvo, II. §§ 58 1-646— Martens, II. §§ 47-
48 — Stoicesco, " l£tude sur la naturalisation " (1875) — Folleville,
" Trait6 de la naturalisation " (1880) — Cogordan, " La nationalite, &c."
(2nd ed. 1890), pp. 117-284, 307-316— Delecaille, " De la naturalisation "
(1893)— Henriques, " The Law of Aliens, &c." (1906), pp. 91-121— Piggott,
" Nationality and Naturalisation, &c." 2 vols. (new ed. 1907)— Hart, in
the Journal of the Society of Comparative Legislation, new series,
vol. II. (1900), pp. 11-26.
§ 303. Naturalisation in the narrower sense of the concep-

term — in contradistinction to naturalisation ipso facto I
through marriage, legitimation, option, domicile, and
Government office (see above, § 299) — must be defined
as reception of an alien into the citizenship of a State
through a formal act on application of the favoured
individual. International Law does not provide any
such rules for such reception, but it recognises the
natural competence of every State as a Sovereign to
increase its population through naturalisation, although
a State might by its Municipal Law be prevented from
making use of this natural competence.2 In spite,
however, of the fact that naturalisation is a domestic
affair of the different States, it is nevertheless of special
1 See above, § 301. Concerning the 2 But there is, as far as I know, no
option sometimes given to inhabitants civilised State in existence which
of ceded territory to retain their abstains altogether from naturalising
former nationality, see above, § 219. foreigners.
380 INDIVIDUALS
importance to the theory and practice of the Law of

Nations. This is the case because naturalisation is
effected through a special grant of the naturalising
State, and regularly involves either a change or a
multiplication of nationality, facts which can be and
have been the source of grave international conflicts. In
the face of the fact that millions of citizens emigrate every
year from their home countries with the intention of
settling permanently in foreign countries, where the
majority of them become sooner or later naturalised,
the international importance of naturalisation cannot
be denied.
§ 304. The object of naturalisation is always an
sation. alien. Some States will naturalise such aliens only as
are stateless because they never have been citizens of
another State or because they have renounced, or have
been released from or deprived of, the citizenship of
their home State. But other States, as Great Britain,
naturalise also such aliens as are and remain subjects
of their home State. Most States naturalise such
person only as has taken his domicile in their country,
has been residing there for some length of time, and
intends permanently to remain in their country. And
according to the Municipal Law of many States, natu-
ralisation ofa married individual includes that of his
wife and children under age. But although every alien
may be naturalised, no alien has, according to the Muni-
cipal Law of most States, a claim to become naturalised,
naturalisation being a matter of discretion of the Govern-
ment, which can refuse it without giving any reasons.
Condi- § 305. If granted, naturalisation makes an alien a
Naturaii- citizen. But it is left to the discretion of the natural-
sation. jgjng gfafo ô grant naturalisation under any conditions
it likes. Thus, for example, Great Britain grants
naturalisation on the sole condition that the naturalised
alien shall not be deemed to be a British subject when
NATURALISATION IN ESPECIAL 381
within the limits of the foreign State of which he has

been a subject previously to his naturalisation, unless
at the time of naturalisation he has ceased to be a
subject of that State. And it must be specially men-
tioned that naturalisation need not give an alien ab-
solutely the same rights as are possessed by natural-
born citizens. Thus according to article 2 of the Con-
stitution ofthe United States of America a naturalised
alien can never be elected President.1
§ 306. Since the Law of Nations does not comprise Effect of
any rules concerning naturalisation, the effect of natu-
rah'sation upon previous citizenship is exclusively a
matter of the Municipal Law of the States concerned.
Some States, as Great Britain,2 have legislated that one
of their subjects becoming naturalised abroad loses
thereby his previous nationality ; but other States, as
Germany, have not done this. Further, some States,
as Great Britain again, deny every effect to the natu-
ralisation granted by them to an alien whilst he is
staying on the territory of the State whose subject he
was previously to his naturalisation, unless at the time
of naturalisation he was no longer a subject of such
State. But other States do not make this provision.
Be that as it may, there can be no doubt that a person
who is naturalised abroad and temporarily or per-
manently returns into the country of his origin, can be
held responsible3 for all acts done there at the time
before his naturalisation abroad.
1 A foreigner naturalised in Great nianeat invitus (Cicero, " Pro Balbo,"

Britain by Letters of Denization c. 13, § 31; see Kattigan, "Private
does not acquire the same rights as International Law " (1895), p. 29, No.
a natural-born. British subject. See 21).
Hall, " Foreign Powers and Juris- 3 Many instructive cases concern-
diction " (1894), § 22. ing this matter are reported by
2 Formerly Great Britain upheld Wharton, II. §§ 180 and 181, and
the rule nemo potest exuere patriam, Moore, III. §§ 401-407, See also
but Section 6 of the Naturalisation Hall, § 71, where details concerning
Act, 1870, does away with that rule. the practice of many States are
Its antithesis is the rule ne quis given with regard to their subjects
invitus civitate mutetur, neve in civitate naturalised abroad.
382 INDIVIDUALS
Naturaii- § 307. The present law of Great Britain l concerning

Great" Naturalisation is mainly contained in the Naturalisa-
tion Acts of igyQ, 1874, and 1895.2 Aliens may on
their application become naturalised by a certificate
of naturalisation in case they have resided in the United
Kingdom or have been in the service of the British
Crown for a term of not less than five years, and in
case they have the intention to continue residing within
the United Kingdom or serving under the Crown. But
naturalisation may be refused without giving a reason
therefor (section 7). British possessions may legislate
on their own account concerning naturalisation (sec-
tion 16), and aliens so naturalised are for all inter-
national purposes 3 British subjects. Where the Crown
enters into a convention with a foreign State to the
effect that the subjects of such State who have been
naturalised in Great Britain may divest themselves of
their status as British subjects, such naturalised British
subjects can through a declaration of alienage shake
off the acquired British nationality (section 3). Natu-
ralisation ofthe husband includes that of his wife,
and naturalisation of the father, or mother in case she
is a widow, includes naturalisation of such children as
have during infancy become resident in the United
Kingdom at the time of their father's or mother's
naturalisation (section 10). Neither the case of chil-
dren who are not resident within the United Kingdom
or not resident with their father in the service of the
Crown abroad at the time of the naturalisation of their
father or widowed mother, nor the case of children
born abroad after the naturalisation of the father is
mentioned in the Naturalisation Act. It is, therefore,
1 As regards naturalisation in the Westlake, " Private International
United States of America, see Moore, Law," 4th ed. (1905), §§ 284-287;
III. §§ 381-389, and Dyne, " Naturaii- Dicey, " Conflict of Laws," 2nd ed.
sation in the United States " (1907). (1908), pp. 172-191.
* 33 Viet. c. 14 ; 35 and 36 Viet. c. 3 See Hall, " Foreign Powers and
39; 58 & 59 Viet. c. 43. See Jurisdiction," §§ 20 and 21, especially
Foote, " Private International Juris- concerning naturalisation in India.
prudence," 3rd ed. (1904), pp. 1-51 ;
DOUBLE AND ABSENT NATIONALITY 383
to be taken for granted that such children are not l

British subjects, except children born of a naturalised
father abroad in the service of the Crown.2
Not to be confounded with naturalisation proper is
naturalisation through denization by means of Letters
Patent under the Great Seal. This way of making an
alien a British subject is based on a very ancient prac-
tice which
3 has not yet become obsolete. Such deniza-
tion requires no previous residence within the United
Kingdom. " A person may be made a denizen without
ever having set foot upon British soil. There have been,
and from time to time there no doubt will be, persons
of foreign nationality to whom it is wished to entrust
functions which can only be legally exercised by British
subjects. In such instances, the condition of five years'
residence in the United Kingdom would generally be
prohibitory. The difficulty can be avoided by the issue
of Letters of Denization ; and it is believed that on
one or two occasions letters have in fact been issued
with the view of enabling persons of foreign nationality
to exercise British consular jurisdiction in the East."
(Hall.)
V
DOUBLE AND ABSENT NATIONALITY
Hall, § 71— Westlake, I. pp. 221-225— Lawrence, § 96— Halleck, I. pp. 410-
413— Taylor, § 183— Wheaton, § 85 (Dana's note)— Moore, III. §§ 426-^30
— Bluntschli, §§ 373-374— Hartmann, § 82— Heffter, § 59— Stoerk in
HoltzendorfT, II. pp. 650-655— Ullmann, § 110— Bonfils, No. 422—
Pradier-Fodere, III. Nos. 1660-1665— Rivier, I. pp. 304-306— Calvo, II.
§§ 647-654— Martens, II. § 46.
§ 308. The Law of Nations having no rule concern- Possibility

ing acquisition and loss of nationality beyond this, that J^01
nationality is lost and acquired through subjugation
1 See Hall, " Foreign Powers and 3 See Hall, " Foreign Powers and
Jurisdiction," § 19. Jurisdiction," § 22.
2 See Naturalisation Act, 1895
(58 & 59 Viet. c. 43).
384 INDIVIDUALS
and cession, and, on the other hand, the Municipal

Laws of the different States differing in many points
concerning this matter, the necessary consequence is
that an individual may own two different nationalities
as easily as none at all. The points to be discussed
here are therefore : how double nationality occurs, the
position of individuals with double nationality, how
absent nationality occurs, the position of individuals
destitute of nationality, and, lastly, means of redress
against difficulties arising from double and absent
nationality.
It must, however, be specially mentioned that the
Law of Nations is concerned with such cases only of
double and absent nationality as are the consequences
of conflicting Municipal Laws of several absolutely
different States. Such cases as are the consequence
of the Municipal Laws of a Federal State or of a State
which, as Great Britain, allows outlying parts to legis-
late on their own account concerning naturalisation,
fall outside the scope of the Law of Nations. Thus the
fact that, according to the law of Germany, a German
can be at the same time a subject of several member-
States of the German Empire, or can be a subject of
this Empire without being a subject of one of its mem-
ber-States, does as little concern the Law of Nations
as the fact that an individual can be a subject of a
British Colonial State without at the same time being
a subject of the United Kingdom. For internationally
such individuals appear as subjects of such Federal
State or the mother-country, whatever their position
may be inside these States.
How § 309. An individual may own double nationality
Nation knowingly or unknowingly, and with or without in-
aiity
occurs.
tention. And r double.. nationality
.•
may be
i»j -ri
produced
i • ji
by
every mode of acquiring nationality. Jiiven birth can
vest a child with double nationality. Thus, every child
born in Great Britain of German parents acquires at

the same time British and German nationality, for such
child is British according to British, and German
according to German Municipal Law. Double nation-
ality can likewise be the result of marriage. Thus, a
Venezuelan woman marrying an Englishman acquires
according to British law British nationality, but accord-
ing to Venezuelan law she does not lose her Venezuelan
nationality. Legitimation of illegitimate children can
produce the same effect. Thus, an illegitimate child of
a German born in England of an English mother is a
British subject according to British and German law,
but if after the birth of the child the father marries the
mother and remains a resident in England, he thereby
legitimates the child according to German law, and
such child acquires thereby German nationality with-
out losing his British nationality, although the mother
does lose her British nationality.1 Again, double
nationality may be the result of option. Thus, a child
born in France of German parents acquires German
nationality, but if, after having come of age, he acquires
French nationality by option through making the
declaration necessary according to French Municipal
Law, he does not thereby, according to German Muni-
cipal Law, lose his German nationality. It is not neces-
sary to give examples of double nationality caused by
taking domicile abroad, accepting foreign Government
office, and redintegration, and it suffices merely to draw
attention to the fact that naturalisation in the nar-
rower sense of the term is frequently a cause of double
nationality, since individuals may apply for and re-
ceive naturalisation in a State without thereby losing
the nationality of their home State.
§ 310. Individuals owning double nationality bear Position
of Indi-
1 This is the
Naturalisation Act, consequence
1870. of Section 10, Nos. 1 and 3, of the vl ua S
VOL. I. 2B
386 INDIVIDUALS
with in the language of diplomatists the name sujets mixtes.

Nation- The position of such " mixed subjects " is awkward
:Llitr- on account of the fact that two different States claim
them as subjects, and therefore their allegiance. In
case a serious dispute arises between these two States
which leads to war, an irreconcilable conflict of duties
is created for these unfortunate individuals. It is all
very well to say that such conflict is a personal matter
which concerns neither the Law of Nations nor the
two States in dispute. As far as an individual has,
through naturalisation, option, and the like, acquired
his double nationality, one may say that he has placed
himself in that awkward position by intentionally and
knowingly acquiring a second without being released
from his original nationality. But those who are
natural-born sujets mixtes in most cases do not know
thereof before they have to face the conflict, and their
difficult position is not their own fault.
Be that as it may, there is no doubt that each
of the States claiming such an individual as subject
is internationally competent to do this, although they
cannot claim him against one another, since each of
them correctly maintains that he is its subject.1 But
against third States each of them appears as his Sove-
1 I cannot agree with the state- England, because British law does
ment in its generality made by not admit of marriage between
Westlake, I. p. 221 :— " If, for uncle and niece. The case is
instance, a man claimed as a national different when a German who
both by the United Kingdom and by marries his niece in Germany, after-
another country should contract in wards takes his domicile and be-
the latter a marriage permitted by comes naturalised in England ; in
its laws to its subjects, an English this case English Courts would have
Court would have to accept him as a to recognise the marriage as legal
married man." If this were correct, because German law does not object
the marriage of a German who, to a marriage between uncle and
without having given up his German niece, and because the marriage was
citizenship, has become naturalised concluded before the man took his
in Great Britain and has afterwards domicile in England and became a
married his niece in Germany, would British subject. See Foote, "Private
have to be recognised as legal by the International Jurisprudence," 3rd
English Courts. The correct solution ed. (1904), p. 106, and the cases there
seems to me to be that such marriage cited.
is legal in Germany, but not legal in
reign, and it is therefore possible that each of them

can exercise its right of protection over him within
third States.
§ 311. An individual may be destitute of nation- HOW
ality knowingly or unknowingly, intentionally or Nation-
through no fault of his own. Even by birth a person ality
may be stateless. Thus, an illegitimate child born in
Germany of an English mother is actually destitute of
nationality because according to German law he does
not acquire German nationality, and according to
British law he does not acquire British nationality.
Thus, further, all children born in Germany of parents
who are destitute of nationality are themselves, accord-
ing to German law, stateless. But statelessness may
take place after birth. All individuals who have
lost their original nationality without having acquired
another are in fact destitute of nationality.
§ 312. That stateless individuals are objects of the Position
Law of Nations in so far as they fall under the territorial viduîs
supremacy of the State on whose territory they live J Nation-
there is no doubt whatever. But since they do not ality-
own a nationality, the link * by which they could derive
benefits from International Law is missing, and thus
they lack any protection whatever as far as this law
is concerned. The position of such individuals desti-
tute of nationality may be compared to vessels on the
Open Sea not sailing under the flag of a State, which
likewise do not enjoy any protection whatever. In
practice, stateless individuals are in most States treated
more or less as though they were subjects of foreign
States, but as a point of international legality there is
no restriction whatever upon a State's maltreating them
to any extent.2
1 See above, § 291. are, with a few exceptions, con-
2 The position of the Jews in sidered as foreigners for the purpose
Roumania furnishes a sad example. of avoiding the consequences of
According to Municipal Law they article 44 of the Treaty of Berlin,
388 INDIVIDUALS
Redress § 313. Double as well as absent nationality of indi-

Difficui- viduals has from time to time created many difficulties
in* from ôr ê States concerned. As regards the remedy for
Double such difficulties, it is comparatively easy to meet those
Absent created by absent nationality. If the number of state-
Nation- iess individuals increases much within a certain State,
the latter can require them to apply for naturalisation
or to leave the country ; it can even naturalise them
by Municipal Law against their will, as no other State
will, or has a right to, interfere, and as, further, the
very fact of the existence of individuals destitute of
nationality is a blemish in Municipal as well as in
International Law. Much more difficult is it, how-
ever, to find, within the limits of the present rules of
the Law of Nations, means of redress against conflicts
arising from double nationality. Very grave disputes
indeed have occasionally occurred between States on
account of individuals who were claimed as subjects
by both sides. Thus, in 1812, a time when England
still kept to her old rule that no natural-born English
subject could lose his nationality, the United States
went to war with England because the latter impressed
Englishmen naturalised in America from on board
American merchantmen, claiming the right to do so,
as according to her law these men were still English
citizens. Thus, further, Prussia frequently had during
the sixties of the last century disputes with the United
States on account of Prussian individuals who, with-
out having rendered military service at home, had
emigrated to America to become there naturalised
and had afterwards returned to Prussia.1 Again, during
1878, according to which no religious of protection over them. See Key in
disabilities may be imposed by R.G. X. (1903), pp. 460-52G, and Bar
lioumania upon her subjects. But in R.I. 2nd Ser. IX. (1907), pp. 711-
as these Jews are nob subjects of any 716. See also above, § 293, p. 3(59,
other State, Roumania compels them note 2.
to render military service, and actu- l The case of Martin Koszta ought
ally treats them in every way accord- here to be mentioned, details of
ing to discretion without any foreign which are reported by Wharton, II.
State being able to exercise a right § 175 ; Moore, III. §§ 490-491, and
the time of the revolutionary movements in Ireland

in the last century before the Naturalisation Act of
1870 was passed, disputes arose between Great Britain
and the United States on account of such Irishmen
as took part in these revolutionary movements after
having become naturalised in the United States.1 It
would seem that the only way in which all the diffi-
culties arising from double and absent nationality could
really be done away with is for all the Powers to agree
upon an international convention, according to which
they undertake the obligation to enact by their Muni-
Martens, " Causes Celebre?," V. pp. sense acquired the national character
583-599. Koszta was a Hungarian of an American.
subject who took part in the revolu- 1 The United States have, through
tionary movement of 1848, escaped the so-called "Bancroft Treaties,"
to the United States, and in July, attempted to overcome conflicts
1852, made a declaration under oath, arising from double nationality.
before a proper tribunal, of his The first of these treaties was con-
intention to become naturalised cluded in 1868 with the North
there. After remaining nearly two German Confederation, the precursor
years in the United States, but of the present German Empire, and
before he was really naturalised, he signed on behalf of the United States
visited Turkey, and obtained a by her Minister in Berlin, George
tezkerch, a kind of letter of safe- Bancroft. (See Wharton, II. §§ 149
conduct, from the American Charge and 179, and Moore, III. §§ 391-400.)
d' Affaires at Constantinople. Later In the same and the following years
on, while at Smyrna, he was seized treaties of the same kind were con-
by Austrian officials and taken on cluded with many other States, the
board an Austrian man-of-war with last with Portugal in 1908. A treaty
the intention of bringing him to of another kind, but with the same
Austria, to be there punished for his object, was concluded between the
part in the revolution of 1848. The United States and Great Britain on
American Consul demanded his re- May 13, 1870. (See Martens, N.R.G.
lease, but Austria maintained that XX. p. 524, and Moore, III. § 397.)
she had a right to arrest Koszta All these treaties stipulate that
according to treaties between her naturalisation in one of the contract-
and Turkey. Thereupon the American ing States shall be recognised by the
man-of-war Saint Louis threatened other, whether the naturalised indi-
to attack the Austrian man-of-war in vidual has or has not previously been
case she would not give up her pris- released from his original citizenship,
oner, and an arrangement was made provided he has resided for five years
that Koszta should be delivered into in such country. And they further
the custody of the French Consul at stipulate that such naturalised in-
Smyrna until the matter was settled dividuals, in case they return after
between the United States and Aus- naturalisation into their former home
trian Governments. Finally, Austria State and take their residence there for
consented to Koszta's being brought some years, either ipso facto become
back to America. Although Koszta again subjects of their former home
was not yet naturalised, the United State and cease to be naturalised
States claimed a right of protection abroad (as the Bancroft Treaties), or
over him, since he had taken his can be reinstated in their former
domicile on her territory with the citizenship, and cease thereby to be
intention to become there naturalised naturalised abroad (as the treaty
in due time, and had thereby in a with Great Britain).
390 INDIVIDUALS
cipal Law such corresponding rules regarding acquisi-

tion and loss of nationality as make the very occurrence
of double and absent nationality impossible.1
VI
RECEPTION OF ALIENS AND RIGHT OF ASYLUM
Vattel, II. § 100— Hall, §§ 63-64— Westlake, I. pp. 208-210— Lawrence, §§ 97-
98— Phillimore, I. §§ 365-370— Twiss, I. § 238— Halleck, I. pp. 452-
454— Taylor, § 186— Walker, § 19— Wharton, II. § 206— Wheaton, § 115,
and Dana's Note — Moore, IV. §§ 560-566— Bluntschli, §§ 381-398—
Hartmann, §§ 84-85, 89— Heffter, §§ 61-63— Stoerk in Holtzendorff, II.
pp. 637-650— Gareis, § 57— Liszt, § 25— Ullrnann, §§ 113-115— Bon fiIs,
Nos. 441-446— Despagnet, Nos. 339-343— Rivier, I. pp. 307-309— Nys,
II. pp. 232-237— Calvo, II. .§§ 701-706, VI. 119— Martens, II. § 46—
Overbeck, " Niederlassungsfreiheit und Ausweisungsrecht " (1906);
Henriques, "The Law of Aliens, &c." (1906)— Sibley and Elias, "The
Aliens Act, &c." (1906)— Proceedings of the American Society of Inter-
national Law, 1911, pp. 65-115.
NO owi- § 314. Many writers 2 maintain that every member

adm0^0 °* tne Family of Nations is bound by International
Aliens. Law to admit all aliens into its territory for all lawful
purposes, although they agree that every State could
exclude certain classes of aliens. This opinion is gene-
rally held by those who assert that there is a funda-
mental right of intercourse between States. It will be
remembered3 that no such fundamental right exists,
but that intercourse is a characteristic of the position
of the States within the Family of Nations and there-
fore a presupposition of the international personality of
every State. A State, therefore, cannot exclude aliens
altogether from its territory without violating the
spirit of the Law of Nations and endangering its very
membership of the Family of Nations. But no State
actually does exclude aliens altogether. The question
is only whether an international legal duty can be said
1 The Institute of International would do away with many of the diffi-
Law has studied the matter, and culties. (See Annuaire, XV. p. 270.)
formulated at its meeting in Venice 2 See, for instance, Bluntschli, §
in 1896 six rules, which, if adopted 381, and Liszt, § 25.
on the part of the different States, 3 See above, jj 141.
RECEPTION OF ALIENS AND RIGHT OF ASYLUM 391
to exist for every State to admit all unobjectionable

aliens to all parts of its territory. And it is this duty
which must be denied as far as the customary Law of
Nations is concerned. It must be emphasised that,
apart from general conventional arrangements, as, for
instance, those concerning navigation on international
rivers, and apart from special treaties of commerce,
friendship, and the like, no State can claim the right
for its subjects to enter into and reside on the territory
of a foreign State. The reception of aliens is a matter
of discretion, and every State is by reason of its terri-
torial supremacy competent to exclude aliens from the
whole or any part of its territory. And it is only by
an inference of this competence that Great Britain,1 the
United States of America, and other States have made
special laws according to which paupers and criminals,
as well as diseased and other objectionable aliens, are
prevented from entering their territory. Every State
is and must remain master in its own house, and such
mastership is of especial importance with regard to the
admittance of aliens. Of course, if a State excluded all
subjects of one State only, this would constitute an
unfriendly act, against which retorsion would be ad-
mis ible ;but it cannot be denied that a State is com-
petent to do this, although in practice such wholesale
exclusion will never happen. Hundreds of treaties of
commerce and friendship exist between the members
of the Family of Nations according to which they are
obliged to receive each other's unobjectionable subjects,
and thus practically the matter is settled, although
in strict law every State is competent to exclude
foreigners from its territory.2
1 See the Aliens Act, 1905 (5 Edw. adopted, at its meeting at Geneva
VII. c. 13). See also Henriques, in 1892 (see Annuaire, XII. p. 219),
" The Law of Aliens, &c." (1906), and a body of forty-one articles con-
Sibley and Elias. " The Aliens Act, cerning the admission andexpul-
&c." (1906 ). si°n °f aliens ; articles 6-13 deal
2 The Institute of International with the admittance of aliens.
Law has studied the matter, and
392 INDIVIDUALS
Reception § 315. It is obvious that, if a State need not receive

under aliens at all, it can, on the other hand, receive them
ons " under certain conditions
only. Thus, for example,
Russia does not admit aliens without passports, and if
the alien adheres to the Jewish faith he has to submit
to a number of special restrictions. Thus, further,
during the time Napoleon III. ruled in France, every
alien entering French territory from the sea or from
neighbouring land was admitted only after having
stated his name, nationality, and the place to which he
intended to go. Some States, as Switzerland, make a
distinction between such aliens as intend to settle down
in the country and such as intend only to travel in the
country ; no alien is allowed to settle in the country
without having asked and received a special authorisa-
tion on the part of the Government, whereas the country
is unconditionally open to all mere travelling aliens.
so-caiied § 316. The fact that every State exercises territorial
supremacy over all persons on its territory, whether
they are its subjects or aliens, excludes the prosecution
of aliens thereon by foreign States. Thus, a foreign
State is, provisionally at least, an asylum for every
individual who, being prosecuted at home, crosses its
frontier. In the absence of extradition treaties stipu-
lating the contrary, no State is by International Law
obliged to refuse admittance into its territory to such
a fugitive or, in case he has been admitted, to expel
him or deliver him up to the prosecuting State. On
the contrary, States have always upheld their com-
petence to grant asylum if they choose to do so. Now
the so-called right of asylum is certainly not a right of
the alien to demand that the State into whose territory
he has entered with the intention of escaping prosecu-
tion from some other State should grant protection and
asylum. For such State need not grant them. The
so-called right of asylum is nothing but the competence
POSITION OF ALIENS AFTER RECEPTION
mentioned above of every State, and inferred from its

territorial supremacy, to allow a prosecuted alien to
enter and to remain on its territory under its protec-
tion, and to grant thereby an asylum to him. Such
fugitive alien enjoys the hospitality of the State which
grants him asylum ; but it might be necessary to place
him under surveillance, or even to intern him at some
place in the interest of the State which is prosecuting
him. For it is the duty of every State to prevent
individuals living on its territory from endangering the
safety of another State. And if a State grants asylum
to a prosecuted alien, this duty becomes of special
importance.
VII
POSITION OF ALIENS AFTER RECEPTION
Vattel, I. § 213, II. §§ 101-115— Hall, §§ 63 and 87— Westlake, I. pp. 211-212,
313-316— Lawrence, §§ 97-98— Phillimore, I. §§ 332-339— Twiss, I. § 163
—Taylor, §§ 173, 187, 201-203— Walker, § 19— Wharton, II. §§ 201-205
— Wheaton, § 77-82— Moore, IV. §§ 534-549— Bluntschli, §§ 385-393—
Hartmann, §§ 84-85— Hefiter, § 62— Stoerk in Holtzendorff, II. pp. 637-
650— Gareis, § 57— Liszt, § 25— Ullmann, §§ 113-115— Bonfils, Nos.
447-454— Despagnet, Nos. 339-343— Rivier, I. pp. 309-311— Calvo, II.
§§ 701-706 — Martens, II. § 46 — Gaston de Leval, "De la protection des
nationaux h, 1'etranger " (1907) — Wheeler in A.J. III. (1909), pp. 869-884
— Proceedings of the American Society of International Law, 1911, pp.
32-65, 150-225.
§ 317. With his entrance into a State, an alien, Aliens

unless he belongs to the class of those who enjoy so- toêm^
called exterritoriality, falls at once under such State's torial Su~
territorial supremacy, although he remains at the same
time under the personal supremacy of his home State.
Such alien is therefore under the jurisdiction of the
State in which he stays, and is responsible to such
State for all acts he commits on its territory. He is
further subjected to all administrative arrangements of
such State which concern the very locality where the
alien is. If in consequence of a public calamity, such
394 INDIVIDUALS
as the outbreak of a fire or an infectious disease, cer-

tain administrative restrictions are enforced, they can
be enforced against all aliens as well as against citizens.
But apart from jurisdiction and mere local adminis-
trative arrangements, both of which concern all aliens
alike, a distinction must be made between such aliens
as are merely travelling and stay, therefore, only tem-
porarily on the territory, and such as take their residence
there either permanently or for some length of time.
A State has wider power over aliens of the latter kind ;
it can make them pay rates and taxes, and can even
compel them in case of need, under the same conditions
as citizens, to serve in the local police and the local
fire brigade for the purpose of maintaining public order
and safety. On the other hand, an alien does not fall
under the personal supremacy of the local State ; there-
fore he cannot be made to serve 1 in its army or navy,
and cannot, like a citizen, be treated according to
discretion.
It must be emphasised that an alien is responsible
to the local State for all illegal acts which he commits
while the territory concerned is during war temporarily
occupied by the enemy. An illustrative case is that of
De Jager v. the Attorney-General for Natal.2 De Jager
was a burgher of the South African Republic, but a settled
resident at Natal when the South African War broke
out. In October 1899 the British forces evacuated
that part of Natal in which Waschbank, where he lived,
is situated, and the Boer forces were in occupation for
some six months. He joined them, and served in
different capacities until March 1900, when he went to
the Transvaal, and took no further part in the war.
1 See, however, above, § 127, con- Baty in The Law Magazine and
cerning the attitude of Great Britain Renew, XXXIII. (1908), pp. 214-218,
with regard to aliens in British who disapproves of the conviction of
colonies. De Jager.
» L.R. [1907] App. C., 326. See
POSITION OF ALIENS AFTER EECEPTION 395
He was tried in March 1901, and convicted of high

treason, and sentenced to five years'* imprisonment and
a fine of £5000, or, failing payment thereof, to a further
three years.
§ 318. The rule that aliens fall under the territorial Aliens
supremacy of the State they are in finds an exception countries.
in Turkey and, further, in such other Eastern States,
like China, as are, in consequence of their deficient
civilisation, only for some parts members of the Family
of Nations. Aliens who are subjects of Christian States
and enter into the territory of such Eastern States,
remain wholly under the jurisdiction1 of their home
State. This exceptional condition of things is based,
as regards' Turkey, on custom and treaties which are
called Capitulations, as regards other Eastern States
on treaties only.2 Jurisdiction over aliens in these
countries is exercised by the consuls of their home
States, which have enacted special Municipal Laws for
that purpose. Thus, Great Britain has enacted so-
called Foreign Jurisdiction Acts at several times, which
are now all consolidated in the Foreign Jurisdiction
Act of 1890.3 It must be specially mentioned that
Japan has since 1899 ceased to belong to the Eastern
States in which aliens are exempt from local jurisdiction.
§ 319. Although aliens fall at once under the terri- Aliens
torial supremacy of the State they enter, they remain
nevertheless under the protection of their home State, of their
By a universally recognised customary rule of the Law state.
of Nations every State holds a right of protection 4
over its citizens abroad, to which corresponds the duty
1 See below, § 440. to Consular Jurisdiction, &c.," new
2 See Twiss, I. § 163, who edition (1907).
enumerates many of these treaties ; * This right has, I believe, grown
see also Phillimore, I. §§ 336—339 ; up in furtherance of intercourse be-
Hall, " Foreign Powers and Jurisdic- tween the members of the Family
tion," §§ 59-91 ; and Scott, " The Law of Nations (see above, § 142); Hall
affecting Foreigners in Egypt as the (§ 87) and others deduce this in-
Result of the Capitulations " (1907). dubitable right from the "funda-
3 53 & 54 Viet. c. 37. See Piggott, mental " right of self-preservation.
" Exterritoriality. The Law relating
396 INDIVIDUALS
of every State to treat foreigners on its territory with a

certain consideration which will be discussed below,
§§ 320-322. The question here is only when and how
this right of protection can be exercised.1 Now there
is certainly, as far as the Law of Nations is concerned,
no duty incumbent upon a State to exercise its pro-
tection over its citizens abroad. The matter is ab-
solutely inthe discretion of every State, and no citizen
abroad has by International Law, although he may have
it by Municipal Law, a right to demand protection from
his home State. Often for political reasons States have
in certain cases refused the exercise of their right of
protection over citizens abroad. Be that as it may,
every State can exercise this right when one of its
subjects is wronged abroad in his person or property,
either by the State itself on whose territory such person
or property is for the time, or by such State's officials
or citizens without such State's interfering for the
purpose of making good the wrong done.2 And this
right can be realised in several ways. Thus, a State
whose subjects are wronged abroad can diplomatically
insist upon the wrongdoers being punished according
to the law of the land and upon damages, if necessary,
being paid to its subjects concerned. It can, secondly,
exercise retorsion and reprisals for the purpose of making
the other State comply with its demands. It can,
further, exercise intervention, and it can even go to
war when necessary. And there are other means be-
sides those mentioned. It is, however, quite impos-
sible to lay down hard-and-fast rules as regards the
1 See Moore, VI. §§ 979-997, and right of protection over citizens
Wheeler in A.J. III. J1909), pp. 869- abroad is discussed in detail by
884. Hall, § 87, Westlake, I. pp. 313-320,
a Concerning the responsibility of and Gaston de Leval, op. cit. Con-
a State for internationally injurious cerning the right of protection of ;i
acts of its own, its organs and other State over its citizens with regard to
officials, and its subjects, see above, public debts of foreign States, see
§§ 151-167, and Arizilloti in R.G. above, §§ 135 (6) and 155.
XITI. (1906), pp. 5 and 285. The
POSITION OF ALIENS AFTER RECEPTION t J. 397
question in which way and how far in every case the

right of protection ought to be exercised. Everything
depends upon the merits of the individual case and
must be left to the discretion of the State concerned.
The latter will have to take into consideration whether
the wronged alien was only travelling through or had
settled down in the country, whether his behaviour had
been provocative or not, how far the foreign Govern-
ment identified itself with the acts of officials or subjects,
and the like.
§ 320. Under the influence of the right of protection Protec-
over its subjects abroad which every State holds, and
the corresponding duty of every State to treat aliens
on its territory with a certain consideration, an alien, and
provided he owns a nationality at all, cannot be out-
lawed in foreign countries, but must be afforded protec-
tion of his person and property.^, The home State of
the alien has by its right of protection a claim upon such
State as allows him to enter its territory that such pro-
tection shall be afforded, and it is no excuse that such
State does not provide any protection whatever for its
own subjects. In consequence thereof every State is
by the Law of Nations compelled, at least, to grant to
aliens equality before the law with its citizens as far as
safety of person and property is concerned. An alien
must in especial not be wronged in person or property
by the officials and Courts of a State. Thus, the police
must not arrest him without just cause, custom-house
officials must treat him civilly, Courts of Justice must
treat him justly and in accordance with the law.
Corrupt administration of the law against natives is no
excuse for the same against aliens, and no Government
can cloak itself with the judgment of corrupt judges.
§321. Apart from protection of person and property, HOW far
every State can treat aliens according to discretion, caifbe
those points excepted concerning which discretion is treatec
398 INDIVIDUALS
according restricted through international treaties between the

cretin. States concerned. Thus, a State can exclude aliens
from certain professions and trades ; it can, as Great
Britain did formerly and Eussia does even to-day,
exclude them from holding real property ; it can, as
again Great Britain * did in former times, compel them
to have their names registered for the purpose of keep-
ing them under control, and the like. It must, however,
be stated that there is a tendency within all the States
which are members of the Family of Nations to treat
admitted aliens more and more on the same footing as
citizens, political rights and duties, of course, excepted.
Thus, for instance, with the only exception that an
alien cannot be sole or part owner of a British ship,
aliens having taken up their domicile in this country
are for all practical purposes treated by the law 2 of
the land on the same footing as British subjects.
Departure § 322. Since a State holds territorial only, but not
Foreign6 personal supremacy over an alien within its boundaries,
Country. j£ can never under any circumstances prevent him from
leaving its territory, provided he has fulfilled his local
obligations, as payment of rates and taxes, of fines, of
private debts, and the like. And an alien leaving a
State can take all his property away with him, and a
tax for leaving the country or tax upon the property
he takes away with him3 cannot be levied. And it
must be specially mentioned that since the beginning
of the nineteenth century the so-called droit d'aubaine
belongs to the past ; this is the name of the right, which
was formerly frequently exercised, of a State to confiscate
the whole estate of an alien deceased on its territory.4
But if a State levies estate duties in the case of a citizen
1 See an Act for the Registration British Municipal Law, but of regula-
of Aliens, &c., 1836 (6 & 7 William tions of the Stock Exchange.
IV. c. 11). 8 So-called yabella emigrationis.
2 That aliens cannot now any * See details in Wheaton, § 82.
longer belong to the London Stock The droit d'aubaine was likewise
Exchange, is an outcome not of named jus albinagii.
EXPULSION OF ALIENS 399
dying on its territory, as Great Britain does according

to the Finance Act * of 1894, such duties can likewise
be levied in case of an alien dying on its territory.
VIII
EXPULSION OF ALIENS
Hall, § 63— Westlake, I. p. 210— Phillimore, I. § 364— Halleck, I. pp. 460-461

—Taylor, § 186— Walker, § 19— Wharton, II. § 206— Moore, IV. §§ 550-
559— Bluntschli, §§ 383-384— Stoerk in Holtzendorff, II. pp. 646-656
— Ullmann, § 115— Bonfils, No. 442— Despagnet, Nos. 336-337—
Pradier-Fodere, III. Nos. 1857-1859— Rivier, I. pp. 311-314— Nys, II.
pp. 229-237— Calvo, VI. §§ 119-125— Fiore, Code, Nos. 252-259—
Martens, I. § 79 — Bleteau, " De 1'asile et de 1'expulsion" (1886) — Berc,
" De 1'expulsion des etrangers " (1888) — F6raud-Giraud, " Droit
d'expulsion des etrangers " (1889) — Langhard, "Das Recht der politischen
Fremdenausweisung " (1891)— Overbeck, " Niederlassungsfreiheit und
Ausweisungsrecht " (1906)— Rolin-Jaequemyns in R.I. XX. (1888), pp.
499 and 615 — Proceedings of the American Society of International Law,
1911, pp. 119-149.
§ 323. Just as a State is competent to refuse admit- com-

tance to an alien, so it is, in conformity with its terri- toe^p
torial supremacy, competent to expel at any moment Aliens-
an alien who has been admitted into its territory. And
it matters not whether the respective individual is
only on a temporary visit or has settled down for pro-
fessional orbusiness purposes on that territory, having
taken his domicile thereon. Such States, of course, as
have a high appreciation of individual liberty and
abhor arbitrary powers of Government will not readily
expel aliens. Thus, the British Government has no
power to expel even the most dangerous alien without
the recommendation of a Court, or without an Act of
Parliament making provision for such expulsion. And
in Switzerland, article 70 of the Constitution empowers
the Government to expel such aliens only as endanger
1 57 & 58 Viet. c. 30. Estate duty ever been resident there. As far as
is levied in Great Britain in the case the Law of Nations is concerned, it
also of such alien dying abroad as is doubtful whether Great Britain is
leaves movable property in the competent to claim estate duties in
United Kingdom without having such cases.
400 INDIVIDUALS
the internal and external safety of the land. But

many States are in no way prevented by their Municipal
Law from expelling aliens according to discretion, and
examples of arbitrary expulsion of aliens, who had made
themselves objectionable to the respective Govern-
ments, are numerous in the past and the present.
On the other hand, it cannot be denied that, espe-
cially in the case of expulsion of an alien who has been
residing within the expelling State for some length of
time and has established a business there, the home
State of the expelled individual is by its right of pro-
tection over citizens abroad justified in making diplo-
matic representations to the expelling State and asking
for the reasons for the expulsion. But as in strict law
a State can expel even domiciled aliens without so much
as giving the reasons, the refusal of the expelling State
to supply the reasons for expulsion to the home State
of the expelled alien does not constitute an illegal,
although a very unfriendly, act. And there is no doubt
that every expulsion of an alien without just cause is,
in spite of its international legality, an unfriendly act,
which can rightfully be met with retorsion,
just § 324. On account of the fact that retorsion might
Expueilion be justified, the question is of importance what just
of Aliens, causes of expulsion of aliens there are. As International
Law gives no detailed rules regarding expulsion, every-
thing is left to the discretion of the single States and
depends upon the merits of the individual case. Theory
and practice correctly make a distinction between ex-
pulsion in time of war and in time of peace. A belli-
gerent may consider it convenient to expel all enemy
subjects residing or temporarily staying within his
territory. And, although such a measure may be very
hard and cruel, the opinion is general that such ex-
pulsion isjustifiable.1 As regards expulsion in time of
1 Thus in 1870, during the Franco- Germans from France, and the
German war, the French expelled all former South African Republic
EXPULSION OF ALIENS 401
peace, on the other hand, the opinions of writers as

well as of States naturally differ much. Such State
as expels an alien will hardly admit not having had
a just cause. Some States, as Belgium * since 1885,
possess Municipal Laws determining just causes for the
expulsion of aliens, and such States' discretion con-
cerning expulsion is, of course, more or less restricted.
But many States do not possess such laws, and are,
therefore, entirely at liberty to consider a cause as
justifying expulsion or not. The Institute of Inter-
national Law at its meeting at Geneva in 1892 adopted
a body of forty-one articles concerning the admittance
and expulsion of aliens, and in article 28 thereof enumer-
ated nine just causes for expulsion in time of peace.2
I doubt whether the States will ever come to an agree-
ment about just causes of expulsion. The fact cannot
be denied that an alien is more or less a guest in the
foreign land, and the question under what conditions
such guest makes himself objectionable to his host
cannot once for all be answered by the establishment
of a body of rules. So much is certain, that with the
gradual disappearance of despotic views in the different
States, and with the advance of true constitutionalism
guaranteeing individual liberty and freedom of opinion
and speech, expulsion of aliens, especially for political
reasons, will become less frequent. Expulsion will,
however, never totally disappear, because it may well be
justified. Thus, for example, Prussia after the annexation
of the formerly Free Town of Frankfort-on-the-Main,
was certainly justified in expelling those individuals
who, for the purpose of avoiding military service in the
Prussian Army, had by naturalisation become Swiss
citizens without giving up their residence at Frankfort.
expelled in 1899, during the Boer Many of these causes, as convic-
war, almost all British subjects. tion for crimes, for instance, are
See below, vol. II. § 100. certainly just causes, but others are
1 See details in Rivier, I. p. 312. doubtful.
8 See Annuaire, XII. p. 223.
VOL. I. 2c
402 INDIVIDUALS
Expulsion § 325. Expulsion is, in theory at least, not a punish-

effected, ment, but an administrative measure consisting in an
order of the Government directing a foreigner to leave
the country. Expulsion must therefore be effected
with as much forbearance and indulgence as the circum-
stances and conditions of the case allow and demand,
especially when compulsion is meted out to a domiciled
alien. And the home State of the expelled, by its right
of protection over its citizens abroad, may well insist
upon such forbearance and indulgence. But this is
valid as regards the first expulsion only. Should the
expelled refuse to leave the territory voluntarily or,
after having left, return without authorisation, he may
be arrested, punished, and forcibly brought to the
frontier.
Reconduc- § ^26. In many Continental States destitute aliens,
tionin foreign vagabonds, suspicious aliens without papers of
Contradis- P & • • i i i
tinctionto legitimation, alien criminals who have servedj ^their•
punishment, and the like, are without any formalities
arrested by the police and reconducted to the frontier.
There is no doubt that the competence for such recon-
duction, which is often called droit de renvoi, is an in-
ference from the territorial supremacy of every State,
for there is no reason whatever why a State should not
get rid of such undesirable aliens as speedily as pos-
sible. But although such reconduction is materially
not much different from expulsion, it nevertheless
differs much from this in form, since expulsion is an
order to leave the country, whereas reconduction is
forcible conveying away of foreigners.1 The home State
of such reconducted aliens has the duty to receive
them, since, as will be remembered,2 a State cannot
refuse to receive such of its subjects as are expelled
from abroad. Difficulties arise, however, sometimes
1 Rivier, I. p. 308, correctly distin- expulsion, but Phillimore, I. § 364,
guishes between reconduction and seems to confound them.
EXTRADITION 403
concerning the reconduction of such alien individuals

as have lost their nationality through long-continued
absence * from home without having acquired another
nationality abroad. Such cases are a further example
of the fact that the very existence of stateless indi-
viduals is a blemish in Municipal as well as Inter-
national Law.2
IX
EXTRADITION
Hall, §§ 13 and 63— Westlake, I. pp. 241-251— Lawrence, §§ 110-111—

Phillimore, I. §§ 3G5-389D— Twiss, I. § 236— Halleck, I. pp. 257-268—
Taylor, §§ 205-211— Walker, § 19— Wharfcon, II. §§ 268-282— Wheaton,
§§ 115-121— Moore, IV. §§ 579-622— Bluntschli, §§ 394-401— Hartmann,
§ 89— Heffter, § 63— Lammasch in Holtzendorff, III. pp. 454-566—
Liszt, § 33— Ullmann, §§ 127-131— Bonfils, Nos. 455-481— Despagnet,
Nos. 276-286— Pradier-Fodere, III. Nos. 1863-1893— Merignhac, II.
pp. 732-777— Rivier, I. pp. 348-357— Nys, II. pp. 244-253— Calvo, II.
§§ 949-1071— Fiore, Code, Nos. 584-586— Martens, II. §§ 91-08— Spear,
"The Law of Extradition" (1879)— Lammasch, " Auslieferung^pflicht
und Asylrecht " (1887) — Martitz, "Internationale Rechtshilfe in
Strafsachen," 2 vols. (1888 and 1897)— Bernard, " Traite theorique et
pratique de 1'extradition," 2 vols. (2nd ed. 1890) — Moore, "Treatise on
Extradition" (1891)— Hawley, "The Law of International Extradition"
(1893)— Clark, "The Law of Extradition" (3rd ed. 1903)— Birori and
Chalmers, "The Law and Practice of Extradition" (1903)— Piggott,
"Extradition" (1910)— Lammasch in E.G. III. (1896), pp. 5-14— Diena
in R.G. XII. (1905), pp. 516-544— See the French, German, and Italian
literature concerning extradition quoted by Fauchille in Boufils, No.
455.
§ 327. Extradition is the delivery of a prosecuted Extradi-

individual to the State on whose territory he has com-
mitted a crime by the State on whose territory the
criminal is for the time staying. Although Grotius 3
holds that every State has the duty either to punish
or to surrender to the prosecuting State such in-
dividuals within its boundaries as have committed
a crime abroad, and although there is as regards the
1 See above, § 302, No. 3. stipulated proper treatment of each
2 It ought to be mentioned that other's destitute subjects on each
many States have, either by special other's territory.
treaties or in their treaties of 3 II. c. 21, § 4.
commerce, friendship, and the like,
404 INDIVIDUALS
majority of such cases an important interest of civilised

mankind that this should be done, this rule of Grotius
has never been adopted by the States and has, there-
fore, never become a rule of the Law of Nations. On
the contrary, States have always upheld their com-
petence to grant asylum to foreign individuals as an
inference from their territorial supremacy, those cases,
of course, excepted which fall under' stipulations of
special extradition treaties, if any. There is, therefore,
no universal rule of customary International Law in
existence which commands I extradition.
Extradi- § 328. Since, however, modern civilisation categori-
Treatiei cally demands extradition of criminals as a rule, num-
ho.w erous treaties have been concluded between the several
States stipulating the cases in which extradition shall
take place. According to these treaties, individuals pro-
secuted for the more important crimes, political crimes
excepted, are actually always surrendered to the prose-
cuting State, if not punished locally. But this solution
of the problem of extradition is a product of the nine-
teenth century only. Before the eighteenth century
extradition of ordinary criminals hardly ever occurred,
although many States used then frequently to surrender
to each other political fugitives, heretics, and even emi-
grants, either in consequence of special treaties stipu-
lating the surrender of such individuals, or voluntarily
without such treaties. Matters began to undergo a
change in the eighteenth century, for then treaties
between neighbouring States frequently stipulated ex-
tradition ofordinary criminals besides that of political
fugitives, conspirators, military deserters, and the like.
1 Clarke, op. cit. pp. 1-15, tries to (see p. 14). But nobody has ever
prove that a duty to extradite crimi- denied this as far as the ordinary
nals does exist, but the result of all criminal is concerned. The question
his labour is that he finds that the is only whether an international leyal
refusal of extradition is " a serious duty exists to surrender a criminal,
violation of the moral obligations And this legal duty States have
which exist between civilised States " always denied.
EXTRADITION 405
Vattel (II. § 76) is able to assert in 1758 that murderers,

incendiaries, and thieves are regularly surrendered by
neighbouring States to each other. But general treaties
of extradition between all the members of the Family
of Nations did not exist in the eighteenth century, and
there was hardly a necessity for such general treaties,
since traffic was not so developed as nowadays and
fugitive criminals seldom succeeded in reaching a foreign
territory beyond that of a neighbouring State. When,
however, in the nineteenth century, with the appear-
ance of railways and Transatlantic steamships, transit
began to develop immensely, criminals used the oppor-
tunity to flee to distant foreign countries. It was then
and thereby that the conviction was forced upon the
States of civilised humanity that it was in their com-
mon interest to surrender ordinary criminals regularly
to each other. General treaties of extradition became,
therefore, a necessity, and the several States succeeded
in concluding such treaties with each other. There is
no civilised State in existence nowadays which has not
concluded such treaties with the majority of the other
civilised States. And the consequence is that, although
no universal rule of International Law commands it,
extradition of criminals between States is an estab-
lished fact based on treaties. The present condition of
affairs is, however, very unsatisfactory, since there are
many hundreds of treaties in existence which do not
at all agree in their details. What is required nowadays,
and what will certainly be realised in the near future,
is a universal treaty of extradition, one single treaty
to which all the civilised States become parties.1
§ 329. Some States, however, were unwilling to de- Municipal
1 The Second Pan-American Con- Salvador, Guatemala, Extradi-
Haiti, Hon- tionLaws.
ference of 1902 produced a treaty of duras, Mexico, and Nicaragua, but
extradition which was signed by this treaty has not been ratified ; see
twelve States, namely, the United the text in "Annuaire de la Vie
States of America, Colombia, Costa Internationale " (1908-9), p. 461.
Rica, Chili, San Domingo, Ecuador,
406 INDIVIDUALS
pend entirely upon the discretion of their Governments

as regards the conclusion of extradition treaties and
the procedure in extradition cases. They have there-
fore enacted special Municipal Laws which enumerate
those crimes for which extradition shall be granted and
asked in return, and which at the same time regulate
the procedure in extradition cases. These Municipal
Laws 1 furnish the basis for the conclusion of extradi-
tion treaties. The first in the field with such an extra-
dition law was Belgium in 1833, which remained, how-
ever, for far more than a generation quite isolated. It
was not until 1870 that England followed the example
given by Belgium. English public opinion was for
many years against extradition treaties at all, consider-
ing them as a great danger to individual liberty and to
the competence of every State to grant asylum to
political refugees. This country possessed, therefore,
before 1870 a few extradition treaties only, which
moreover were in many points inadequate. But in
1870 the British Government succeeded in getting
Parliament to pass the Extradition Act.2 This Act,
which was amended by another in 1873 3 and a third
in 1895,4 has furnished the basis for extradition treaties
of Great Britain with forty other States.5 Belgium
enacted a new extradition law in 1874. Holland en-
acted such a law in 1875, Luxemburg in the same
year, Argentina in 1885, the Congo Free State in 1886,
Peru in 1888, Switzerland in 1892.
Such States as possess no extradition laws and
whose written Constitution does not mention the
1 See Martitz, "Internationale 6 The full text of these treaties
the history of all 747-818,
Rechtshilfe," I. pp. these lawswhereis is
Bironprinted
and byChalmers.
Clarke, asNot wellto be
as
sketched and their text is printed. confounded with extradition of
2 33 & 34 Viet. c. 52. criminals to foreign States is ex-
3 36 & 37 Viet. c. 60. tradition within the British Em-
* 58 & 69 Viet. c. 33. On the pire from one part of the British
history of extradition in Great dominions to another. This matter
Britain before the Extradition Act, is regulated by the Fugitive Offenders
1870, see Clarke, op. cit. pp. 126-166. Act, 1881 (44 & 45 Viet. c. 169).
EXTRADITION 407
matter, leave it to their Governments to conclude

extradition treaties according to their discretion. And
in these countries the Governments are competent to
extradite an individual even if no extradition treaty
exists.
§ 330. Since extradition is the delivery of an in- object of
criminated individual to the State on whose territory
he has committed a crime by the State on whose terri-
tory he is for the time staying, the object of extra-
dition can be any individual, whether he is a subject
of the prosecuting State, or of the State which is re-
quired to extradite him, or of a third State. Many
States, however, as France and most other States of
the European continent, have adopted the principle
never to extradite one of their subjects to a foreign
State, but themselves to punish subjects of their own
for grave crimes committed abroad. Other States, as
Great Britain and the United States, have not adopted
this principle, and do extradite such of their subjects
as have committed a grave crime abroad. Thus Great
Britain surrendered in 1879 to Austria, where he was
convicted and hanged,1 one Tourville, a British subject,
who, after having murdered his wife in the Tyrol, had
fled home to England. And it must be emphasised
that the object of extradition is an individual who has
committed a crime abroad, whether or not he was
during the commission of the criminal act physically
present on the territory of the State where the crime was
committed. Thus, in 1884, Great Britain surrendered
one Nillins to Germany, who, by sending from South-
ampton forged bills of exchange to a merchant in Ger-
many as payment for goods ordered, was considered to
1 This case is all the more remark- extradition treaty of 1873 between
able, as (see 24 & 25 Viet. c. 100, § 9) England and Austria-Hungary, the
the criminal law of England extends contracting parties are in no case
over murder and manslaughter com- under obligation to extradite their
mitted abroad by English subjects, own subjects,
and as, according to article 3 of the
408 INDIVIDUALS
have committed forgery and to have obtained goods

by false pretences in Germany.1
A conflict between International and Municipal Law
arises if a certain individual must be extradited accord-
ing to an extradition treaty, but cannot be extradited
according to the Municipal Law of the State from which
extradition is demanded. Thus in the case of Salvatore
Paladini,2 whose extradition was demanded by the
United States of America from the Italian Government
in 1888 for having passed counterfeit money, Italian
Municipal Law, which prohibits the extradition of an
Italian citizen, came into conflict with article 1 of the
Extradition Treaty of 1868 between Italy and the
United States which stipulates extradition of criminals
without exempting nationals. For this reason Italy re-
fused to extradite Paladini. It is noteworthy that the
United States, although they do not any longer press
for extradition of Italian subjects who, after having
committed a crime in the United States have returned
to Italy, nevertheless consider themselves bound by
the above-mentioned treaty of 1868 to extradite to
Italy such American subjects as have committed a crime
in Italy. Therefore, when in 1910 the Italian Govern-
ment demanded from the United States extradition of
one Porter Charlton,3 an American citizen, for having
committed a murder in Italy, extradition was granted.
Extra- § 331. Unless a State is restricted by an extradition
Crime*, law, it can grant extradition for any crime it thinks
fit. And unless a State is bound by an extradition
treaty, it can refuse extradition for any crime. Such
States as possess extradition laws frame their extra-
dition treaties conformably therewith and specify in
those treaties all those crimes for which they are willing
to grant extradition. And no person is to be extra-
1 See Clarke, op. oil. pp. 177 and a See Moore, IV. § 594, pp. 29C-297.
262, who, however, disapproves of 3 See A. J. V. (1911), pp. 182-191.
this surrender.
EXTRADITION 409
dited whose deed is not a crime according to the

Criminal Law of the State which is asked to extradite,
as well as of the State which demands extradition.
As regards Great Britain, the following are extraditable
crimes according to the Extradition Act of 1870 :—
Murder and manslaughter ; counterfeiting and uttering
counterfeit money ; forgery and uttering what is
forged ; embezzlement and larceny ; obtaining goods
or money by false pretences ; crimes by bankrupts
against bankruptcy laws ; fraud by a bailee, banker,
agent, factor, trustee, or by a director, or member, or
public officer of any company ; rape ; abduction ; child
stealing ; burglary and housebreaking ; arson ; rob-
bery with violence ; threats with intent to extort ;
piracy by the Law of Nations ; sinking or destroying a
vessel at sea ; assaults on board ship on the High Seas
with intent to destroy life or to do grievous bodily
harm ; revolt or conspiracy against the authority of
the master on board a ship on the High Seas. The
Extradition Acts of 1873 and 1906 added the following
crimes to the list : — Kidnapping, false imprisonment,
perjury, subornation of perjury, and bribery.
Political criminals are, as a rule, not extradited,1
and according to many extradition treaties military
deserters and such persons as have committed offences
against religion are likewise excluded from extradition.
§ 332. Extradition is granted only if asked for, and Effectua-
after the formalities have taken place which are stipu-
lated in the treaties of extradition and the extradition dition* of Extra-
laws, if any. It is effected through handing over the
criminal by the police of the extraditing State to the
police of the prosecuting State. But it must be empha-
sised that, according to most extradition treaties, it is
a condition that the extradited individual shall be tried
and punished for those crimes exclusively for which his
1 See below, §§ 333-340.
410 INDIVIDUALS
extradition has been asked and granted, or for those at

least which the extradition treaty concerned enumer-
ates.1 If,nevertheless, an extradited individual is tried
and punished for another crime, the extraditing State
has a right of intervention.2
An important question is whether., in case a criminal,
who has succeeded in escaping into the territory of
another State, is erroneously handed over, without the
formalities of extradition having been complied with,
by the police of the local State to the police of the
prosecuting State, such local State can demand that the
prosecuting State shall send the criminal back and ask
for his formal extradition. This question was decided
in the negative in February 1911 by the Court of Arbi-
tration at the Hague in the case of France v. Great
Britain concerning Savarkar. This British-Indian sub-
ject, who was prosecuted for high treason and abatement
of murder, and was being transported in the P. and 0.
boat Morea to India for the purpose of standing his
trial there, escaped to the shore on October 25, 1910,
while the vessel was in the harbour of Marseilles. He
was, however, seized by a French policeman/ who, erro-
neously and without further formalities, reconducted
him to the Morea with the assistance of individuals
from the vessel who had raised a hue-and-cry. Since
Savarkar was prima facie a political criminal, France
demanded that England should give him up and should
request his extradition in a formal way, but England
refused to comply with this demand, and the parties,
therefore, agreed to have the conflict decided by the
Court of Arbitration at the Hague. The award, while
admitting that an irregularity had been committed by
1 See Mettgenberg in the "Zeit- 1880, at its meeting in Oxford (see

schrift fur Internationales Recht," Annuaire, V. p. 117), adopted a body
XVIII. (1908), pp. 425-430. of twenty-six rules concerning extra-
the1 Institute
It ought oftoInternational
be mentionedLawthat
in dition.
NON-EXTRADITION OF POLITICAL CRIMINALS 411
the reconduction of Savarkar to the British vessel,

decided, correctly, I believe, in favour of Great Britain,
asserting that there was no rule of International Law
imposing, in circumstances such as those which have
been set out above, any obligation on the Power which
has in its custody a prisoner, to restore him on account
of a mistake committed by the foreign agent who de-
livered him up to that Power.1 It should be mentioned
that the French Government had been previously in-
formed of the fact that Savarkar would be a prisoner
on board the Morea while she was calling at Marseilles,
and had agreed to this.
PRINCIPLE OF NON-EXTRADITION OF POLITICAL

CRIMINALS
Westlake, I. pp. 247-248— Lawrence, § 111— Taylor, § 212— Wharton, II.

§ 272— Moore, IV. § 604— Bluntschli, § 396— Hartmann, § 89— Lammasch
in Holtzendorff, III. pp. 485-510— Liszt, § 33— Ullmann, § 129— Rivier,
I. pp. 351-357— Nys, II. pp. 253-256— Calvo, II. §§ 1034-1036— Martens,
II. § 96— Bonfils, Nos. 466-467— Pradier-Fodere, III. Nos. 1871-1873—
Merignhac, II. pp. 754-771— Soldan, " L'extradition des criminels
politiques " (1882)— Martitz, " Internationale Rechtshilfe in Strafsachen,"
vol. II. (1897), pp. 134-707 — Lammasch, " Auslieferungspflicht und
Asylrecht" (1887), pp. 203-355— Grivaz, "Nature et efiets du principe
de 1'asyle politique " (1895)— Piggott, " Extradition " (1910), pp. 42-60—
Scott in A.J. III. (1909), pp. 459-461.
§ 333. Before the French Revolution2 the term HOW

" political crime " was unknown in either the theory tradition
or the practice of the Law of Nations. And the prin-
ciple of non-extradition of political criminals
,
was like- became
T . the Rule.
wise non-existent. On the contrary, whereas extradi-
1 See Hamelin, " L' Affaire Savar- in Z.V. V. (1911), pp. 202-211;
kar" (Extraitdu " Recueil general de Strupp, " Zwei praktische Falle aus
Jurisprudence, de Doctrine et de d em Volkerrecht " (1911), pp. 12-26 ;
Legislation coloniales," 1911), who Robin in KG. XVIII. (1911), pp.
defends the French view. The 303-352 ; Hamelin R.I. 2nd Ser. XIII.
award of the Court of Arbitration (1911), pp. 370-403.
has been severely criticised by Baty 2 If ollowin this section for the most
in the Law Magazine and Review, part the summary of the facts given
XXXVI. (1911), pp. 326-330 ; Kohler by Martitz, op. cit. II. pp. 134-184.
412 INDIVIDUALS
tion of ordinary criminals was, before the eighteenth

century at least, hardly ever stipulated, treaties very
often stipulated the extradition of individuals who had
committed such deeds as are nowadays termed " poli-
tical crimes," and such individuals were frequently
extradited even when no treaty stipulated it.1 And
writers in the sixteenth and seventeenth centuries did
not at all object to such practice on the part of the
States ; on the contrary, they frequently approved of
it.2 It is indirectly due to the French Kevolution that
matters gradually underwent a change, since this event
was the starting-point for the revolt in the nineteenth
century against despotism and absolutism throughout
the western part of the European continent. It was
then that the term " political crime " arose, and article
120 of the French Constitution of 1793 granted asylum
to foreigners exiled from their home country " for the
cause of liberty." On the other hand, the French
emigrants, who had fled from France to escape the
Reign of Terror, found an asylum in foreign States.
However, the modern principle of non-extradition of
political criminals even then did not conquer the world.
Until 1830 political criminals frequently were extradited.
But public opinion in free countries began gradually to
revolt against such extradition, and Great Britain was
its first opponent. The fact that several political
fugitives were surrendered by the Governor of Gibraltar
to Spain created a storm of indignation in Parliament
in 1815, where Sir James Mackintosh proclaimed the
principle that no nation ought to refuse asylum to
political fugitives. And in 1816 Lord Castlereagh de-
clared that there could be no greater abuse of the law
than by allowing it to be the instrument of inflicting
punishment on foreigners who had committed political
1 Martitz, op. cit. II. p. 177, gives political criminals which took place
a list of important extraditions of between 1648 and 1789.
2 So Grotius, II. c. 21, § 5, No. 5.
crimes only. The second in the field was Switzerland,

the asylum for many political fugitives from neigh-
bouring countries, when, after the final defeat of
Napoleon, the reactionary Continental monarchs refused
the introduction of constitutional reforms which were
demanded by their peoples. And although, in 1823,
Switzerland was forced by threats of the reactionary
leading Powers of the Holy Alliance to restrict somewhat
the asylum afforded by her to individuals who had
taken part in the unsuccessful political revolts in Naples
and Piedmont, the principle of non-extradition went
on fighting its way. The question as to that asylum
was discussed with much passion in the press of Europe.
And although the principle of non-extradition was far
from becoming universally recognised, that discussion
indirectly fostered its growth. A practical proof thereof
is that in 1830 even Austria and Prussia, two of the
reactionary Powers of that time, refused Russia's
demand for extradition of fugitives who had taken
part in the Polish Eevolution of that year. And an-
other proof thereof is that at about the same time, in
1829, a celebrated dissertation 1 by a Dutch jurist made
its appearance, in which the principle of non-extradi-
tion of political criminals was for the first time defended
with juristic arguments and on a juristic basis.
On the other hand, a reaction set in in 1833, when
Austria, Prussia, and Russia concluded treaties which
remained in force for a generation, and which stipulated
that henceforth individuals who had committed crimes
of high treason and lese-majeste, or had conspired against
the safety of the throne and the legitimate Government,
or had taken part in a revolt, should be surrendered
to the State concerned. The same year, however, is
epoch-making in favour of the principle of non-extra-
dition ofpolitical criminals, for in 1833 Belgium enacted
1 H. Provo Kluit, " De deditione profugorum."
414 INDIVIDUALS
her celebrated extradition law, the first of its kind,

being the very first Municipal Law which expressly
interdicted the extradition of foreign political criminals.
As Belgium, which had seceded from the Netherlands
in 1830 and became recognised and neutralised by the
Powers in 1831, owed her very existence to revolt, she
felt the duty of making it a principle of her Municipal
Law to grant asylum to foreign political fugitives, a
principle which was for the first time put into practice
in the treaty of extradition concluded in 1834 between
Belgium and France. The latter, which to the present
day has no municipal extradition law, has nevertheless
henceforth always in her extradition treaties with other
Powers stipulated the principle of non-extradition of
political criminals. And the other Powers followed
gradually. Even Russia had to give way, and since
1867 this principle is to be found in all extradition
treaties of Russia with other Powers, that with Spain
of 1888 excepted. It is due to the stern attitude of
Great Britain, Switzerland, Belgium, France, and the
United States that the principle has conquered the
world. These countries, in which individual liberty is
the very basis of all political life, and constitutional
government a political dogma of the nation, watched
with abhorrence the methods of government of many
other States between 1815 and 1860. These Govern-
ments were more or less absolute and despotic, repress-
ing by force every endeavour of their subjects to obtain
individual liberty and a share in the government.
Thousands of the most worthy citizens and truest
patriots had to leave their country for fear of severe
punishment for political crimes. Great Britain and
the other free countries felt in honour bound not to
surrender such exiled patriots to the persecution of
their Governments, but to grant them an asylum.
§ 334> Chough the principle became and is
generally 1 recognised that political criminals shall not fog the

be extradited, serious difficulties exist concerning the
conception of " political crime." Such conception is of
great importance, as the extradition of a criminal may
depend upon it. It is unnecessary here to discuss the
numerous details of the controversy. It suffices to
state that whereas many writers call such crime " poli-
tical "as was committed from a political motive, others
call " political " any crime committed for a political
purpose ; again, others recognise such crime only as
" political " as was committed from a political motive
and at the same time for a political purpose ; and,
thirdly, some writers confine the term " political crime "
to certain offences against the State only, as high
treason, lese-majeste, and the like.2 To the present day
all attempts have failed to formulate a satisfactory
conception of the term, and the reason of the thing
will, I believe, for ever exclude the possibility of finding
a satisfactory conception and definition.3 The diffi-
culty iscaused through the so-called " relative political
crimes " or delits complexes — namely, those complex
cases in which the political offence comprises at the
same time 4 an ordinary crime, such as murder, arson,
theft, and the like. Some writers deny categorically
that such complex crimes are political ; but this opinion
is wrong and dangerous, since indeed many honourable
1 See, however, below, § 340, con- In re Meunier, L.R. [1894] 2 Q.B.
cerning the reactionary movement in 415. In the case of Castione, a
the matter. Swiss who had taken part in a
2 See Mettgenberg, "Die Attentats- revolutionary movement in the
klausel irn deutschen Auslieferungs- canton of Ticino and had incidentally
recht" (1906), pp. 61-76, where a shot a member of the Government,
survey of the different opinions is the Court refused extradition because
given. the crime was considered to be
3 According to Stephen, "History political. On the other hand, in the
of the Criminal Lawiu England," vol. case of Meunier, a French anarchist
II. p. 71, political crimes are such as who was prosecuted for having
are identical to and form a part of caused two explosions in France, one
political disturbances. of which resulted in the death of two
* The problem came twice before individuals, the extradition was
the English courts ; see Ex parte granted because the crime was not
Castione, L.R. [1891] 1 Q.B. 149, and considered to be political.
416 INDIVIDUALS
political criminals would have to be extradited in

consequence thereof. On the other hand, it cannot be
denied that many cases of complex crimes, although
the deed may have been committed from a political
motive or for a political purpose, are such as ought not
to be considered political. Such cases have roused the
indignation of the whole civilised world, and have indeed
endangered the very value of the principle of non-
extradition of political criminals. Three practical
attempts have therefore been made to deal with such
complex crimes without violating this principle.
The § 335. The first attempt was the enactment of the
Belgian so-called attentat clause by Belgium in 1856,1 following
clause* *ê case °^ Jac(lum m 1854. A French manufacturer
named Jules Jacquin, domiciled in Belgium, and a
foreman of his factory named Celestin Jacquin, who
was also a Frenchman, tried to cause an explosion on
the railway line between Lille and Calais with the
intention of murdering the Emperor Napoleon III.
France requested the extradition of the two criminals,
but the Belgian Court of Appeal had to refuse the sur-
render on account of the Belgian extradition law inter-
dicting the surrender of political criminals. To provide
for such cases in the future, Belgium enacted in 1856
a law amending her extradition law and stipulating that
murder of the head of a foreign Government or of a
member of his family should not be considered a political
crime. Gradually all European States, with the ex-
ception ofEngland and Switzerland, have adopted that
attentat clause, and a great many Continental writers
urge its adoption by the whole of the civilised world.2
The § 336. Another attempt to deal with complex crimes
?K)Tectnof without detriment to the principle of non-extradition
1881. of political criminals was made by Russia in 1881.
Influenced by the murder of the Emperor Alexander
1 See details in Martitz, op. cit. 2 See Mettgenberg, op. cit. pp.
II. p. 372. 109-114.
II. in that year, Kussia invited the Powers to hold an

International Conference at Brussels for the considera-
tion of the proposal that thenceforth no murder or
attempt to murder ought to be considered as a political
crime. But the Conference did not take place, since
Great Britain as well as France declined to take part
in it.1 Thus the development of things had come to a
standstill, many States having adopted, others declin-
ing to adopt, the Belgian clause, and the Russian
proposal having fallen through.
§ 337. Eleven years later, in 1892, Switzerland The Swiss
attempted a solution of the problem on a new basis. thePro-
In that year Switzerland enacted an extradition law
whose article 10 recognises the non-extradition of
political criminals, but at the same time lays down the
rule that political criminals shall nevertheless be sur-
rendered incase the chief feature of the offence wears
more the aspect of an ordinary than of a political crime,
and that the decision concerning the extraditability of
such criminals rests with the " Bundesgericht," the
highest Swiss Court of Justice. This Swiss rule contains
a better solution of the problem than the Belgian attentat
clause in so far as it allows the circumstances of the
special case to be taken into consideration. And the fact
that the decision is taken out of the hands of the Govern-
ment and transferred to the highest Court of the country,
denotes likewise a remarkable progress.2 For the Govern-
ment cannot now be blamed whether extradition is
granted or refused, the decision of an independent Court
of Justice being a certain guarantee that an impartial
view of the circumstances of the case has been taken.3
1 See details in Martitz, op. cit. II. the Institute of International Law at
p. 479. its meeting at Geneva in 1892 (see
2 See Langhard, " Das Schweiz- Annuaire, XII. p. 182) adopted four
erische Auslieferungsrecht " (1910), rules concerning extradition of
where all the cases are discussed political criminals, but I do not
which have come before the Court think that on the whole these rules
since 1892. give much satisfaction.
3 It outjht to be mentioned that
VOL. I. 2 I)
418 INDIVIDUALS
Rationale § 338. The numerous attempts l against the lives of

principle heads of States and the frequency of anarchistic crimes
tradition*" âve snaên tne value of the principle of non-extradi-
ofpoijticai tion of political criminals in the opinion of the civilised
world as illustrated by the three practical attempts
described above to meet certain difficulties. It is,
consequently, no wonder that some writers 2 plead
openly and directly for the abolition of this principle,
maintaining that it was only the product of abnormal
times and circumstances such as were in existence
during the first half of the nineteenth century, and that
with their disappearance the principle is likely to do
more harm than good. And indeed it cannot be denied
that the application of the principle in favour of some
criminals, such as anarchistic3 murderers and bomb-
throwers, could only be called an abuse. But the ques-
tion iswhether, apart from such exceptional cases, the
principle itself is still to be considered as justified or not.
1 Not less than nineteen of these attempts have been successful since
1850, as the following formidable list shows :—
Charles II., Duke of Parma, murdered on March 26, 1854.
Prince Danilo of Montenegro, „ August 14, 1860.
President Abraham Lincoln, U.S.A., „ April 14, 1865.
Prince Michael of Servia, „ June 10. 18<>8.
President Balta of Peru, „ July, 1872.
President Moreno of Ecuador, ,, August 6, 1872.
Sultan Abdul Assis of Turkey, „ June 4, 1876.
Emperor Alexander II. of Russia, „ March 13, 1881.
President G-arfield, U.S.A., „ July 2, 1881.
President Carnot of France, „ June 24, 1894.
Shah Nazr-e-Din of Persia, „ May 1, 1896.
Empress Elizabeth of Austria, „ September 10, 1898.
King Humbert I. of Italy, „ July 30, 1900.
President McKinley, U.S.A., „ September 6, 1901.
King Alexander I. of Servia and
Queen Draga, „ June 10, 1903.
King Carlos I. of Portugal and
the Crown Prince, „ February 15, 1908.
President Caceres of San Domingo, ,, November 19, 1911.
1 See, for instance, Rivier, I. p. 354, secondarily and incidentally, commit
and Scott in A.J. III. (1909), p. 459. offences against some particular
3 " . . . the party with whom the government, but anarchist offences
accused is identified . . . namely are mainly directed against private
the party of anarchy, is the enemy citizens." (From the judgment of
of all governments. Their efforts Cave, J. In re Meunier, L.R. [1894] 2
are directed primarily against the Q.B. 419.) — See also Diena in R.G. II.
general body of citizens. They may, (1905), pp. 306-336.
Without doubt the answer must be in the affirma-

tive. Ireadily admit that every political crime is by
no means an honourable deed, which as such deserves
protection. Still, political crimes are committed by
the best of patriots, and, what is of more weight, they
are in many cases a consequence of oppression on the
part of the respective Governments. They are com-
paratively infrequent in free countries, where there is
individual liberty, where the nation governs itself, and
where, therefore, there are plenty of legal ways to bring
grievances before the authorities. A free country can
never agree to surrender foreigners to their prosecuting
home State for deeds done in the interest of the same
freedom and liberty which the subjects of such free
country enjoy. For individual liberty and self-govern-
ment of nations are demanded by modern civilisation,
and their gradual realisation over the whole globe is
conducive to the welfare of the human race.
Political crimes may certainly be committed in the
interest of reaction as well as in the interest of progress,
and reactionary political criminals may have occasion
to ask for asylum as well as progressive political crim-
inals. The principle of non-extradition of political
criminals indeed extends its protection over the former
too, and this is the very point where the value of the
principle reveals itself. For no State has a right to
interfere with the internal affairs of another State, and,
if a State were to surrender reactionary political crim-
inals but not progressive ones, the prosecuting State
of the latter could indeed complain and consider the
refusal of extradition an unfriendly act. If, however,
non-extradition is made a general principle which finds
its application in favour of political criminals of every
kind, no State can complain if extradition is refused.
Have not reactionary States the same faculty of refus-
ing the extradition of reactionary political criminals as
420 INDIVIDUALS
free States have of refusing the extradition of pro-

gressive political criminals ?
Now, many writers agree upon this point, but main-
tain that such arguments meet the so-called purely
political crimes only, and not the relative or complex
political crimes, and they contend, therefore, that the
principle of non-extradition ought to be restricted to
the former crimes only. But to this I cannot assent.
No revolt happens without such complex crimes taking
place, and the individuals who commit them may indeed
deserve the same protection as other political criminals.
And, further, although I can under no circumstances
approve of murder, can never sympathise with a mur-
derer, and can never pardon his crime, it may well be
the case that the murdered official or head of a State
has by inhuman cruelty and oppression himself whetted
the knife which cut short his span of life. On the other
hand, the mere fact that a crime was committed for a
political purpose may well be without any importance
in comparison with its detestability and heinousness.
Attempts on heads of States, such, for example, as the
murders of Presidents Lincoln and Carnot or of Alex-
ander II. of Russia and Humbert of Italy, are as a rule,
and all anarchistic crimes are without any exception,
crimes of that kind. Criminals who commit such
crimes ought under no circumstances to find protection
and asylum, but ought to be surrendered for the pur-
pose of receiving their just and appropriate punishment.
HOW to § 339. The question, however, is how to sift the chaff
appifcf-18 from the wheat, how to distinguish between such poli-
tionofthe
Principl ^{C3\ criminals
e . as, .deserve an asylum and such as do
of Non-ex- not. The difficulties are great and partly insuperable
tradition . ,
ofPoiiticai as long as we do not succeed, in
. £ *.
finding aJ satisfactory
,. *
criminals. conception of the term " political crime." But such

difficulties are only partly, not wholly, insuperable.
The step taken by the Swiss extradition law of 1892 is
so far in advance as to meet a great many of the diffi-

culties. There is no doubt that the adoption of the
Swiss rule by all the other civilised States would im-
prove matters more than the universal adoption of the
so-called Belgian attentat clause. The fact that accord-
ing to Swiss law each case of complex political crime is
unravelled and obtains the verdict of an independent
Court according to the very circumstances, conditions,
and requirements under which it occurred, is of the
greatest value. It enables every case to be met in such
a way as it deserves, without compromising the Govern-
ment, and without sacrificing the principle of non-extra-
dition ofpolitical criminals as a valuable rule. I cannot
support the charge made by some writers l that the Swiss
law is inadequate because it does not give criteria for
the guidance of the Court in deciding whether or no
extradition for complex crimes should be granted. In
my opinion, the very absence of such criteria proves the
superiority of the Swiss clause to the Belgian attentat
clause. On the one hand, the latter is quite insufficient,
for it restricts its stipulations to murder of heads of
States and members of their families only. But I see
no reason why individuals guilty of any murder — as
provided by the Eussian proposal — or who have com-
mitted other crimes, such as arson, theft, and the like,
should not be surrendered in case the political motive
or purpose of the crime is of no importance in com-
parison with the crime itself. On the other hand, the
Belgian clause goes too far, since exceptional cases of
murder of heads of States from political motives or for
political purposes might occur which do not deserve
extradition. The Swiss clause, however, with its ab-
sence of fixed distinctions between such complex crimes
as are extraditable, and such as are not, permits the
consideration of the circumstances, conditions, and
1 See, for instance, Martitz, op. cit. II. pp. 533-539.
422 INDIVIDUALS
requirements under which a complex crime was com-

mitted. Itis true that the responsibility of the Court
of Justice which has to decide whether such a complex
crime is extraditable is great. But it is to be taken
for granted that such Court will give its decision with
impartiality, fairness, and justice. And it need not be
feared that such Court will grant asylum to a murderer,
incendiary, and the like, unless convinced that the deed
was really political.
Reaction- § 340. Be that as it may, the present condition of
dttiorf r matters is a danger to the very principle of non-extra-
Treaties. djtjon of political criminals. Under the influence of
the excitement caused by numerous criminal attempts
in the last quarter of the nineteenth century, a few
treaties have already been concluded which make a
wide breach in this principle. It is Kussia which is
leading the reaction. This Power in 1885 concluded
treaties with Prussia and Bavaria which stipulate the
extradition of all individuals who have made an attack
on the life, the body, or the honour * of a monarch, or
of a member of his family, or who have committed any
kind of murder or attempt to murder. And the extra-
dition treaty between Russia and Spain of 1888 goes
even further and abandons the principle of non-extra-
dition of political criminals altogether. Fortunately,
the endeavour of Russia to abolish this principle alto-
gether has not succeeded. In her extradition treaty
with Great Britain of 1886 she had to adopt it without
any restriction, and in her extradition treaties with
Portugal of 1887, with Luxemburg of 1892, and with
the United States and Holland of 1893, she had to
adopt it with a restrictive clause similar to the Belgian
attentat clause.
1 Thus, even for Use majcste extradition must be granted.
PART III
ORGANS OF THE STATES FOR THEIR
INTERNATIONAL RELATIONS
CHAPTER I
HEADS OF STATES, AND FOREIGN OFFICES
I
POSITION OF HEADS OF STATES ACCORDING TO
INTERNATIONAL LAW
Hall, § 97— Phillimore, II. §§ 101 and 102— Bluntschli, §§ 115-125— Holtzen-
dorff in Holtzendorff, II. pp. 77-81— Ullmann, § 40— Rivier, I. § 32—
Nys, II. pp. 325-329— Fiore, II. No. 1097— Bonfils, No. 632— Merignbac,
II. pp. 294-305— By nkershoek, "De foro legatorum" (1721), c. III. § 13.
§ 341. As a State is an abstraction from the fact Necessity

that a multitude of individuals live in a country under foA^r
a Sovereign Government, every State must have a head state>
as its highest organ, which represents it within and
without its borders in the totality of its relations. Such
head is the monarch in a monarchy and a president or
a body of individuals, as the Bundesrath of Switzerland,
in a republic. The Law of Nations prescribes no rules
as regards the kind of head a State may have. Every
State is, naturally, independent regarding this point,
possessing the faculty of adopting any Constitution it
likes and of changing such Constitution according to its
discretion. Some kind or other of a head of the State
is, however, necessary according to International Law,
as without a head there is no State in existence, but
anarchy.
§ 342. In case of the accession of a new head of a Recogni-
State, other States are as a rule notified. The latter Head°sof
usually recognise the new head through some formal Sfcates>
act, such as a congratulation. But neither such
notification nor recognition is strictly necessary ac-
426 HEADS OF STATES, AND FOREIGN OFFICES
cording to International Law, as an individual be-

comes head of a State, not through the recognition of
other States, but through Municipal Law. Such noti-
fication and recognition are, however, of legal impor-
tance. For through notification a State declares that
the individual concerned is its highest organ, and has
by Municipal Law the power to represent the State in
the totality of its international relations. And through
recognition the other States declare that they are ready
to negotiate with such individual as the highest organ
of his State. But recognition of a new head by other
States is in every respect a matter of discretion. Neither
has a State the right to demand from other States
recognition of its new head, nor has any State a right
to refuse such recognition. Thus Russia, Austria, and
Prussia refused until 1848 recognition to Isabella, Queen
of Spain, who had come to the throne as an infant in
1833. But, practically, in the long run recognition can-
not be withheld, for without it international intercourse
is impossible, and States with self-respect will exercise
retorsion if recognition is refused to the heads they
have chosen. Thus, when, after the unification of Italy
in 1861, Mecklenburg and Bavaria refused the recogni-
tion of Victor Emanuel as King of Italy, Count Cavour
revoked the exequatur of the consuls of these States in
Italy.
But it must be emphasised that recognition of a
new head of a State by no means implies the recog-
nition of such head as the legitimate head of the State
in question. Eecognition is in fact nothing else than
the declaration of other States that they are ready to
deal with a certain individual as the highest organ of
the particular State, and the question remains totally
undecided whether such individual is or is not to be
considered the legitimate head of that State.
tencepeof § 343. The head of a State, as its chief organ and
POSITION OF HEADS OF STATE 427
representative in the totality of its international rela- Heads of

tions, acts for his State in the latter's international states'
intercourse, with the consequence that all his legally
relevant international acts are considered acts of his
State. His competence to perform such acts is termed
jus repraesentationis omnimodae. It comprises in sub-
stance chiefly : reception and mission of diplomatic
agents and consuls, conclusion of international treaties,
declaration of war, and conclusion of peace. But it is
a question of the special case, how far this competence
is independent of Municipal Law. For heads of States
exercise this competence for their States and as the
latter's representatives, and not in their own right. If
a head of a State should, for instance, ratify a treaty
without the necessary approval of his Parliament, he
would go beyond his powers, and therefore such treaty
would not be binding upon his State.1
On the other hand, this competence is certainly inde-
pendent of the question whether a head of a State is
the legitimate head or a usurper. The mere fact that
an individual is for the time being the head of a State
makes him competent to act as such head, and his State
is legally bound by his acts. It may, however, be diffi-
cult to decide whether a certain individual is or is not
the head of a State, for after a revolution some time
always elapses before matters are settled.
§ 344. Heads of States are never subjects 2 of the Heads of
Law of Nations. The position a head of a State has objects of
according to International Law is due to him, not as
an individual, but as the head of his State. His posi-
tion is derived from international rights and duties of
his State, and not from international rights of his own.
Consequently, all rights possessed by heads of States
1 See below, § 497. derivatively as subjects of Interna-
2 But Heffter (§ 48) maintains the tional Law. The matter is treated
contrary, and Phillimore (II. § 100) in detail above, §§13 and 288-290 ;
designates monarchs mediately and see also below, § 384.
abroad are not international rights, but rights which

must be granted to them by the Municipal Law of the
foreign State on whose territory such foreign heads of
States are temporarily staying, and such rights must be
granted in compliance with international rights of the
home States of the respective heads. Thus, heads of
States are not subjects but objects of International
Law, and in this regard are like any other individual.
Honours § 345. All honours and privileges of heads of States
leges o/1" due to them by foreign States are derived from the fact
Sates. °f *ât dignity is a recognised quality of States as mem-
bers of the Family of Nations and International Persons.1
Concerning such honours and privileges, International
Law distinguishes between monarchs and heads of
republics. This distinction is the necessary outcome of
the fact that the position of monarchs according to the
Municipal Law of monarchies is totally different from
the position of heads of republics according to the
Municipal Law of the republics. For monarchs are
sovereigns, but heads of republics are not.
II
MONARCHS
Vattel, I. §§ 28-45 ; IV. § 108— Hall, § 49— Lawrence, § 105— Phillimore, II.
§§ 108-113— Taylor, § 129— Moore, II § 250— Bluntschli, §§ 126-153—
Heffter, §§ 48-57— Ullmann, §§ 41-42— Rivier, I. § 33— Nys, II. pp. 280-
296— Calvo, III. §§ 1454-1479— Fiore, II. Nos. 1098-1102— Bonfils, Nos.
633-647—
1591. Me"rignhac, II. pp. 94-105— Pradier-Fod6r6, III. Nos. 1564-
sove- § 346. In every monarchy the monarch appears as

Monarch! the representative of the sovereignty of the State and
thereby becomes a Sovereign himself, a fact which is
recognised by International Law. And the difference
between the Municipal Laws of the different States
MONARCHS 429
regarding this point matters in no way. Consequently,

International Law recognises all monarchs as equally
sovereign, although the difference between the consti-
tutional positions of monarchs is enormous, if looked
upon in the light of the rules laid down by the Constitu-
tional Laws of the different States. Thus, the Emperor
of Russia, whose powers are very wide, and the King of
England, who is sovereign in Parliament only, and
whose powers are therefore very much restricted, are
indifferently sovereign according to International Law.
§ 347. Not much need be said as regards the con-
sideration due to a monarch from other States when
within the boundaries of his own State. Foreign States
have to give him his usual and recognised predicates *
in all official communications. Every monarch must
be treated as a peer of other monarchs, whatever dif-
ference intitle and actual power there may be between
them.
§ 348. As regards, however, the consideration due Consi
to a monarch abroad from the State on whose territory
he is staying in time of peace and with the consent and
the knowledge of the Government, details must neces-
sarily be given. The consideration due to him consists
in honours, inviolability, and exterritoriality.
(1) In consequence of his character of Sovereign,
his home State has the right to demand that certain
ceremonial honours be rendered to him, the members
of his family, and the members of his retinue. He
must be addressed by his usual predicates. Military
salutes must be paid to him, and the like.
(2) As his person is sacrosanct, his home State has
a right to insist that he be afforded special protection
as regards personal safety, the maintenance of personal
dignity, and the unrestrained intercourse with his
Government at home. Every offence against him must
1 Details as regards the predicates of monarchs are given above, § 119.
be visited with specially severe penalties. On the other

hand, he must be exempt from every kind of criminal
jurisdiction. The wife of a Sovereign must be afforded
the same protection and exemption.
(3) He must be granted so-called exterritoriality
conformably with the principle : " Par in par em non
habet imperium" according to which one Sovereign
cannot have any power over another Sovereign. He
must, therefore, in every point be exempt from taxa-
tion, rating, and every fiscal regulation, and likewise
from civil jurisdiction, except when he himself is the
plaintiff.1 The house where he has taken his residence
must enjoy the same exterritoriality as the official resi-
dence of an ambassador ; no policeman or other official
must be allowed to enter it without his permission.
Even if a criminal takes refuge in such residence, the
police must be prevented from entering it, although,
if the criminars surrender is deliberately refused, the
Government may request the recalcitrant Sovereign to
leave the country and then arrest the criminal. If a
foreign Sovereign has real property in a country, such
property is under the latter 's jurisdiction. But as soon
as such Sovereign takes his residence on the property,
it must become exterritorial for the time being. Further,
a Sovereign staying in a foreign country must be allowed
to perform all his own governmental acts and functions,
except when his country is at war with a third State
and the State in which he is staying remains neutral.
And, lastly, a Sovereign must be allowed, within the
same limits as at home, to exercise civil jurisdiction over
the members of his retinue. In former times even
criminal jurisdiction over the members of his suite was
very often claimed and conceded, but this is now anti-
1 See above, § 115, and the cases barkeit iiber fremde Staaten und
there quoted ; see also Phillimore, II. Souverane " (1903).
§ 113A, and Loening, " Die Gerichts-
MONARCHS 431
quated.1 The wife of a Sovereign must likewise be

granted exterritoriality, but not other members of a
Sovereign's family.2
However, exterritoriality is in the case of a foreign
Sovereign, as in any other case, a fiction only, which
is kept up for certain purposes within certain limits.
Should *a Sovereign during his stay within a foreign
State abuse his privileges, such State is not obliged to
bear such abuse tacitly and quietly, but can request
him to leave the country. And when a foreign Sove-
reign commits acts of violence or such acts as endanger
the internal or external safety of the State, the latter
can put him under restraint to prevent further acts of
the same kind, but must at the same time bring him as
speedily as possible to the frontier.
§ 349. The position of individuals who accompany The
a monarch during his stay abroad is a matter of some
dispute. Several publicists maintain that the home abroad
State can claim the privilege of exterritoriality as well
for members of his suite as for the Sovereign him-
self, but others deny this.3 I believe that the opinion
of the former is correct, since I cannot see any reason
why a Sovereign abroad should as regards the members
of his suite be in an inferior position to a diplomatic
envoy.4
§ 350. Hitherto only the case where a monarch is
staying in a foreign country with the official knowledge
of the latter's Government has been discussed. Such
knowledge may be held in the case of a monarch travel-
ling incognito, and he enjoys then the same privileges as
if travelling not incognito. The only difference is that
1 A celebrated case happened on Bluntschli, § 154 ; but, according to
November 10, 1656, in France, when Bluntschli, exterritoriality need not
Christina, Queen of Sweden, although in strict law be granted even to the
she had already abdicated, sentenced wife of a Sovereign,
her grand equerry, Monaldeschi, to 3 See Bluntschli, § 154, and Hall,
death, and had him executed by her § 49, in contradistinction to Martens,
bodyguard. I. § 83.
* 'See Rivier, I. p. 421, and * See below, §§ 401-405.
many ceremonial observances, which are due to a mon-

arch, are not rendered to him when travelling incognito.
But the case may happen that a monarch is travelling
in a foreign country incognito without the latter's
Government having the slightest knowledge thereof.
Such monarch cannot then of course be treated other-
wise than as any other foreign individual; but he can
at any time make known his real character and assume
the privileges due to him. Thus the late King William
of Holland, when travelling incognito in Switzerland in
1873, was condemned to a fine for some slight contra-
vention, but the sentence was not carried out, as he
gave up his incognito.
Deposed- § 351. All privileges mentioned must be granted to
oatedAbdl" a monarch onty as l°ng as he is really the head of a
Monarchs. State. As soon as he is deposed or has abdicated, he
is no longer a Sovereign. Therefore in 1870 and 1872
the French Courts permitted, because she was de-
posed, a civil action against Queen Isabella of Spain,
then living in Paris, for money due to the plaintiffs.
Nothing, of course, prevents the Municipal Law of
a State from granting the same privileges to a
foreign deposed or abdicated monarch as to a foreign
Sovereign, but the Law of Nations does not exact any
such courtesy.
Regents. § 352. All privileges due to a monarch are also due
to a Regent, at home or abroad, whilst he governs on
behalf of an infant, or of a King who is through illness
incapable of exercising his powers. And it matters not
whether such Regent is a member of the King's family
and a Prince of royal blood or not.
Monarchs § 353. When a monarch accepts any office in a foreign
or State, when, for instance, he serves in a foreign army,
of r oreign as t^ monarcns of the small German States have for-
subjects
Powers, merly frequently done, he submits to such State as far
as -the duties of the office are concerned, and his home
PRESIDENTS OF REPUBLICS 433
State cannot claim any privileges for him that other-

wise would be due to him.
When a monarch is at the same time a subject of
another State, distinction must be made between his
acts as a Sovereign, on the one hand, and his acts as a
subject, on the other. For the latter, the State whose
subject he is has jurisdiction over him, but not for the
former. Thus, in 1837, the Duke of Cumberland be-
came King of Hanover, but at the same time he was by
hereditary title an English Peer and therefore an English
subject. And in 1844, in the case Duke of Brunswick v.
King of Hanover,1 the Master of the Bolls held that the
King of Hanover was liable to be sued in the Courts of
England in respect of any acts done by him as an English
subject.
Ill
PRESIDENTS OF REPUBLICS
Bluntschli, § 134— Stoerk in Holtzendorff, II. p. 661— Ullmann, § 42— Eivier,

I. § 33— Martens, I. § 80— Walther, " Das Staatshaupt in den Kepubliken "
(1907), pp. 190-204.
§ 354. In contradistinction to monarchies, in re- Presidents

publics the people itself, and not a single individual, re°ign°.ve
appears as the representative of the sovereignty of the
State, and accordingly the people styles itself the
Sovereign of the State. And it will be remembered
that the head of a republic may consist of a body of
individuals, such as the Bundesrath in Switzerland.
But in case the head is a President, as in France and
the United States of America, such President repre-
sents the State, at least in the totality of its inter-
national relations. He is, however, not a Sovereign,
but a citizen and subject of the very State whose head
he is as President.
1 6 Beavan, 1 ; 2 House of Lords Cases, 1 ; see also Phillimore, II. § 109.
VOL. I. 2 E
Position § 355. Consequently, his position at home and abroad

dentîn cannot be compared with that of monarchs, and Inter-
generai. national Law does not empower his home State to
claim for him the same, but only similar, consideration
as that due to a monarch. Neither at home nor abroad,
therefore, does a president of a republic appear as a peer
of monarchs. Whereas all monarchs are in the style
of the Court phraseology considered as though they
were members of the same family, and therefore address
each other in letters as " my brother," a president of
a republic is usually addressed in letters from monarchs
as " my friend." His home State can certainly at home
and abroad claim such honours for him as are due to
its dignity, but no such honours as must be granted to
a Sovereign monarch.
Position § 356. As to the position of a president when abroad,
derlts681 writers on the Law of Nations do not agree. Some *
abroad, maintain that, since a president is not a Sovereign, his
home State can never claim for him the same privileges
as for a monarch, and especially that of exterritoriality.
Others 2 make a distinction whether a president is
staying abroad in his official capacity as head of a
State or for his private purposes, and they maintain
that his home State could only in the first case claim
exterritoriality for him. Others 3 again will not admit
any difference in the position of a president abroad
from that of a monarch abroad. How the States them-
selves think as regards the question of the exterritori-
ality of presidents of republics abroad cannot be ascer-
tained, since to my knowledge no case has hitherto
occurred in practice from which a conclusion may be
drawn. But practice seems to have settled the ques-
tion of ceremonial honours due to a president officially
1 Ullmann, § 42 ; Kivier, I. p. 423 ; 3 Bonfils, No. 632 ; Nys, II. p. 287 ;
Stoerk in Holtzendorff, II. p. 658. M6rignhac, II. p. 298 ; Liszt, § 13 ;
2 Martens, I. § 80 ; Bluntschli, Walther, op. cit., p. 195.
§ 134 ; Despagnet, No. 254 ; Hall,
§97.
FOREIGN OFFICES 435
abroad ; they are such as correspond to the rank of his

home State, and not such as are due to a monarch.
As regards exterritoriality, I believe that future contin-
gencies will create the practice on the part of the States
of granting this privilege to presidents and members
of their suite as in the case of monarchs. I cannot
see that there is any danger in such a grant. And no-
body can deny that, if exterritoriality is not granted,
all kinds of friction and even conflicts might arise.
Although not Sovereigns, presidents of republics fill for
the time being a sublime office, and the grant of ex-
ter itoriality tothem is a tribute paid to the dignity of
the States they represent.
IV
FOREIGN OFFICES
Heffter, § 201— Geffcken in Holtzendorff, III. p. 668— Ullmann, § 43—

Rivier, I. § 34— Bonfils, Nos. 648-651— Nys, II. pp. 330-334.
§ 357. As a rule nowadays no head of a State, be Position

he a monarch or a president, negotiates directly and in secretary
person with a foreign Power, although this happens jj?orejgn
occasionally. The necessary negotiations are regu- Affairs.
larly conducted by the Foreign Office, an office which
since the Westphalian Peace has been in existence in
every civilised State. The chief of this office, the
Secretary for Foreign Affairs, who is a Cabinet Minister,
directs the foreign affairs of the State in the name of
the head and with the latter's consent ; he is the middle-
man between the head of the State and other States.
And although many a head of a State directs in fact all
the foreign affairs himself, the Secretary for Foreign
Affairs is nevertheless the person through whose hands
all transactions must pass. Now, as regards the posi-
tion of such Foreign Secretary at home, it is the Muni-
cipal Law of a State which regulates this. International

Law defines his position regarding international inter-
course with other States. He is the chief over all the
ambassadors of the State, over its consuls, and over
its other agents in matters international. It is he who,
either in person or through the envoys of his State,
approaches foreign States for the purpose of negotiating
matters international. And again it is he whom foreign
States through their Foreign Secretaries or their envoys
approach for the like purpose. He is present when
Ministers hand in their credentials to the head of the
State. All documents of importance regarding foreign
matters are signed by him or his substitute, the Under-
secretary for Foreign Affairs. It is, therefore, usual
to notify the appointment of a new Foreign Secretary
of a State to such foreign States as are represented
within its boundaries by diplomatic envoys ; the new
Foreign Secretary himself makes this notification.
CHAPTER II
DIPLOMATIC ENVOYS
I
THE INSTITUTION OF LEGATION
Phillimore, II. §§ 143-153— Taylor, § 274— Twiss, § 199— Geffcken in Holtzen-

dorff, III. pp. 605-618— Nys, II. pp. 335-339— Rivier, I. § 35— Ullmann,
§ 44— Martens, II. § 6— Gentilis, "De legationibus libri III." (1585)—
Wicquefort, " L'Ambassadeur et ses f onctions " (1680) — Bynkershoek,
" De foro legatorum " (1721) — Garden, " Traite1 complet de diplomatic"
(3 vols. 1833) — Minis, " Das europaische Gesandtschaftsrecht " (2 vols.
1847) — Charles de Martens, " Le guide diplomatique" (2 vols. 1832 ; 6th
ed. by Geffcken, 1866) — Montague Bernard, " Four Lectures on Subjects
connected with Diplomacy" (1868), pp. 111-162 (3rd Lecture)— Alt,
"Handbuch des Europiiischen Gesandtschaf tsrechts " (1870) — Pradier-
Fodere, " Cours de droit diplomatique " (2 vols. 2nd ed. 1899) —
Krauske, "Die Entwickelung der stiindigen Diplomatic," &c. (1885)—
Lehr, " Manuel theorique et pratique des agents diplomatiques " (1888) —
Hill, " History of Diplomacy in the International Development of Europe,"
vol. I. (1905), vol. II. (1906 ; the other vols. have not yet appeared).
§ 358. Legation as an institution for the purpose of Deveiop-

negotiating between different States is as old as history,
whose records are full of examples of legations sent
and received by the oldest nations. And it is remark-
able that even in antiquity, where no such law as the
modern International Law was known, ambassadors
enjoyed everywhere a special protection and certain
privileges, although not by law but by religion, am-
bassadors being looked upon as sacrosanct. Yet per-
manent legations were unknown till very late in the
Middle Ages. The fact that the Popes had permanent
representatives — so-called apocrisiarii or responsales —
at the Court of the Frankish Kings and at Constan-
tinople until the final separation
437 of the Eastern from the
438 DIPLOMATIC ENVOYS
Western Church, ought not to be considered as the

first example of permanent legations, as the task of
these papal representatives had nothing to do with
international affairs, but with those of the Church
only. It was not until the thirteenth century that the
first permanent legations made their appearance. The
Italian Kepublics, and Venice in especial, created the
example 1 by keeping representatives stationed at one
another's capitals for the better negotiation of their
international affairs. And in the fifteenth century
these Republics began to keep permanent representa-
tives in Spain, Germany, France, and England. Other
States followed the example. Special treaties were often
concluded stipulating permanent legations, such as in
1520, for instance, between the King of England and
the Emperor of Germany. From the end of the fifteenth
century England, France, Spain, and Germany kept up
permanent legations at one another's Courts. But it
was not until the second half of the seventeenth century
that permanent legations became a general institution,
the Powers following the example of France under
Louis XIV. and Richelieu. It ought to be specially
mentioned that Grotius 2 thought permanent legations
to be wholly unnecessary. The course of events has,
however, shown that Grotius's views as regards per-
manent legations were short-sighted. Nowadays the
Family of Nations could not exist without them, as
they are the channel through which nearly the whole,
and certainly all important^ official intercourse of the
States flows.
Dipio- § 359. The rise of permanent legations created the
macy. necessity for a new class of State officials, the so-called
diplomatists ; yet it was not until the end of the eight-
1 See Nys, " Les Origines du droit possunt, quae nunc in usu sunt,
international" (1894), p. 295. legationes assiduae, quibus cum non
8 " De jure belli ac pacis," II. c. sit opus, docet mos antiquus, cui illae
28, § 3 : " Optimo autem jure rejici ignoratae."
THE INSTITUTION OF LEGATION 439
eenth century that the terms " diplomatist " and

" diplomacy " came into general use. And although
the art of diplomacy is as old as official intercourse
between States, such a special class of officials as are
now called diplomatists did not and could not exist
until permanent legations had become a general insti-
tution. In this as in other cases the office has created f
the class of men necessary for it. International Law
has nothing to do with the education and general char-
acter of these officials. Every State is naturally com-
petent to create its own rules, if any, as regards these
points. Nor has International Law anything to do
with diplomatic usages, although these are more or less
of importance, as they may occasionally grow into
customary rules of International Law. But I would
notice one of these usages — namely, that as regards the/
language which is in use in diplomatic intercourse]
This language was formerly Latin, but through the'r
political ascendency of France under Louis XIV. it be-1
came French. However, this is a usage of diplomacy
only, and not a rule of International Law.1 Each State
can use its own language in all official communications
to other States, and States which have the same lan-
guage regularly do so in their intercourse with each
other. But between States of different tongues and,
further, at Conferences and Congresses, it is convenient
to make use of a language which is generally known.
This is nowadays French, but nothing could prevent
diplomatists from dropping French at any moment and
adopting another language instead.
1 See Mirus, " Das europaische Gesandtschaftsrecht," I. §§ 266-268.
II
RIGHT OF LEGATION
Grotius, II. c. 18— Vattel, IV. §§ 55-68— Hall, § 98— Phillimore, II. §§ 115-
139— Taylor, §§ 285-288— Twiss, §§ 201-202— Wheaton, §§ 206-209—
Bluntschli, §§ 159-165— Heffter, § 200— Geffcken in Holtzendorff, III.
pp 620-631— Ullmann, § 45— Rivier, I. § 35— Nys, II. p. 339— Bonfils,
Nos. 658-667— Pradier-Fodere, II. Nos. 1225-1256— Fiore, II. Nos. 1112-
1117— Calvo, III. §§ 1321-1325— Martens, II. §§ 7-8.
Concep- § 360. Right of legation is the right of a State toi

Sight of sen<^ an<^ receive diplomatic envoys. The right to send]
Legation. sucfo envoys is termed active right of legation, in contra-
distinction tothe passive right of legation, as the right
to receive such envoys is termed. Some writers l on
International Law assert that no right but a mere
competence to send and receive diplomatic envoys
exists according to International Law, maintaining that
no State is bound by International Law to send or
receive such envoys. But this is certainly wrong in its
generality. Obviously a State is not bound to send
diplomatic envoys or to receive permanent envoys.
But, on the other hand, the very existence2 of the
Family of Nations makes it necessary for the members
or some of the members to negotiate occasionally on
certain points. Such negotiation would be impossible
in case one member could always and under all cir-
cumstances refuse to receive an envoy from the other
members. The duty of every member to listen, under
ordinary circumstances, to a message from another
brought by a diplomatic envoy is, therefore, an out-
come of its very membership of the Family of Nations,
and this duty corresponds to the right of every member
to send such envoys. But the exercise of the active
right of legation is discretionary. No State need send
diplomatic envoys at all, although practically all States
1 See, for instance, Wheaton, § 2 See above, § 141.
207 ; Heilborn, " System," p. 182.
RIGHT OF LEGATION 441
do at least occasionally send such envoys, and most

States send permanent envoys to many other States.
The passive right of legation is discretionary as regards/
the reception of permanent envoys only.
§ 361. Not every State, however, possesses the right \ what
of legation. Such right pertains chiefly to full-Sove-lp0ssesS
reign States,1 for other States possess this right under !jj
certain conditions only. tion.
(1) Half-Sovereign States, such as States under the
suzerainty or the protectorate of another State, can as
a rule neither send nor receive diplomatic envoys.
Thus, Crete and Egypt are destitute of such right,
and the Powers are represented in these States only by
consuls or agents without diplomatic character. But
there may be exceptions to this rule. Thus, according
to the Peace Treaty of Kainardgi of 1774 between
Russia and Turkey, the two half-Sovereign principalities
of Moldavia and Wallachia had the right of sending
Charges dj Affaires to foreign Powers. Thus, further,
the late South African Republic, which was a State
under British suzerainty in the opinion of Great Britain,
used to keep permanent diplomatic envoys in several
foreign States.
(2) Part-Sovereign member-States of a Federal State
may or may not have the right of legation besides the
Federal State. It is the constitution of the Federal
State which regulates this point. Thus, the mem-
ber-States ofSwitzerland and of the United States of
America have no right of legation, but those of the
German Empire certainly have. Bavaria, for example,
sends and receives several diplomatic envoys.
1 It should be emphasised that the not diplomatic envoys, although so

Holy See, which is in some respects treated, becomes apparent from the
treated as though an International fact that they are not agents for
Person, can send and receive envoys, international affairs of States, but
who musjt in every respect be con- exclusively for affairs of the Roman
sidered as though they were diplo- Catholic Church. (See above, § 106.)
matic envoys. That they are actually
Right of § 362. As, according to International Law, a State

bygwhom *s represented in its international relations by its head,
exercised, it is he who acts in the exercise of his State's right of
legation. But Municipal Law may, just as it desig-
nates the person who is the head of the State, impose
certain conditions and restrictions upon the head as
regards the exercise of such right. And the head him-
self may, provided that it is sanctioned by the Muni-
cipal Law of his State, delegate l the exercise of such
right to any representative he chooses.
It may, however, in consequence of revolutionary
movements, be doubtful who the real head of a State is,
and in such cases it remains in the discretion of foreign
States to make their choice. But it is impossible for
foreign States to receive diplomatic envoys from both
claimants to the headship of the same State, or to send
diplomatic envoys to both of them. And as soon as
a State has recognised the head of a State who came into
his position through a revolution, it can no longer keep
up diplomatic relations with the former head.
It should be mentioned that a revolutionary party
which is recognised as a belligerent Power has never-
theless no right of legation, although foreign States
may negotiate with such party in an informal way
through political agents without diplomatic character,
to provide for the temporal security of the persons and
property of their subjects within the territory under
the actual sway of such party. Such revolutionary
party as is recognised as a belligerent Power is in some
points only treated as though it were a subject of
International Law ; but it is not a State, and there is
no reason why International Law should give it the
right to send and receive diplomatic envoys.
It should further be mentioned that neither an
1 See Phillimore, II. §§ 126-133, where several interesting cases of such

delegation are discussed.
KINDS AND CLASSES OF DIPLOMATIC ENVOYS 443
abdicated nor a deposed head has a right to send and

receive diplomatic envoys.1
Ill
KINDS AND CLASSES OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 69-75— Phillimore, II. §§ 211-224— Twiss, I. §§ 204-209— Moore,

IV. § 624— Heffter, § 208— Geffcken in Holtzendorff, III. pp. 635-646
— Calvo, III. §§ 1326-1336— Bonfils, Nos. 668-676— Pradier-Fodere, III.
§§ 1277-1290— Eivier, I. pp. 443-453— Nys, II. pp. 342-352.
§ 363. Two different kinds of diplomatic envoys are Envoys

to be distinguished — namely, such as are sent for poli-
tical negotiations and such as are sent for the purpose
of ceremonial function or notification of changes in the
headship. For States very often send special envoys
to one another on occasion of coronations, weddings,
funerals, jubilees, and the like ; and it is also usual to
send envoys to announce a fresh accession to the throne.
Such envoys ceremonial have the same standing as envoys
political for real State negotiations. Among the envoys
political, again, two kinds are to be distinguished —
namely, first, such as are permanently or temporarily
accredited to a State for the purpose of negotiating with
such State, and, second, such as are sent to represent
the sending State at a Congress or Conference. The latter
are not, or need not be, accredited to the State on
whose territory the Congress or Conference takes place,
but they are nevertheless diplomatic envoys and enjoy
all the privileges of such envoys as regards exterritori-
ality and the like which concern the inviolability and
safety of their persons and the members of their suites.
§ 364. Diplomatic envoys accredited to a State differ classes of
in class. These classes did not exist in the early stages ^°c'
of International Law. But during the sixteenth cen- Envoys.
1 See Phillimore, II. §§ 124-125, where the case of Bishop Ross, ambas-
sador of Mary Queen of Scots, is discussed.
tury a distinction between two classes of diplomatic

envoys gradually arose, and at about the middle of the
seventeenth century, after permanent legations had
come into general vogue, two such classes became gener-
ally recognised — namely, extraordinary envoys, called
Ambassadors, and ordinary envoys, called Residents ;
Ambassadors being received with higher honours and
taking precedence of the other envoys. Disputes arose
frequently regarding precedence, and the States tried
in vain to avoid them by introducing during the eight-
eenth century another class — namely, the so-called
Ministers Plenipotentiary. At last the Powers assembled
at the Vienna Congress came to the conclusion that the
matter ought to be settled by an international under-
standing, and they agreed, therefore, on March 19,
1815, upon the establishment of three different classes
—namely, first, Ambassadors ; second, Ministers Pleni-
potentiary and Envoys Extraordinary ; third, Charges
d'Affaires. And the five Powers assembled at the
Congress of Aix-la-Chapelle in 1818 agreed upon a
fourth class — namely, Ministers Resident, to rank be-
tween Ministers Plenipotentiary and Charges d' Affaires.
All the other States either expressly or tacitly accepted
these arrangements, so that nowadays the four classes
are an established order. Although their privileges are
materially the same, they differ in rank and honours,
and they must therefore be treated separately.
Ambas- § 365. Ambassadors form the first class. Only
3rs' States enjoying royal honours l are entitled to send and
to receive Ambassadors, as also is the Holy See, whose
first-class envoys are called Nuncios, or Legati a latere
or de latere. Ambassadors are considered to be personal
representatives of the heads of their States and enjoy
for this reason special honours. Their chief privilege)
—namely, that of negotiating with the head of the'
1 See above, § 117, No. 1.
KINDS AND CLASSES OF DIPLOMATIC ENVOYS 445
State personally — has, however, little value nowadays,

as almost all States have to a certain extent con-
stitutional government, which necessitates that all the
important business should go through the hands of a
Foreign Secretary.
§ 366. The second class, the Ministers Plenipoten-f Ministers
tiary and Envoys Extraordinary, to which also belong )tentiary
the Papal Internuncios, are not considered to be per-j ^0 s
sonal representatives of the heads of their States. Extra-
Therefore they do not enjoy all the special honours of!
the Ambassadors, and have not the privilege of treat- 1
ing with the head of the State personally. But other- >
wise there is no difference between these two classes.
§ 367. The third class, the Ministers Resident, enjoy Ministers
fewer honours and rank below the Ministers Pleni-i *
potentiary. But beyond the fact that Ministers Resi-
dent do not enjoy the title " Excellency/' there is no
difference between them and the Ministers Plenipo-
tentiary.
§ 368. The fourth class, the Charges d'Affaires, charges
differs chiefly in one point from the first, second, and dAffaires-
third class — namely, in so far as its members are ac-
credited from Foreign Office to Foreign Office, whereas
the members of the other classes are accredited from
head of State to head of State. Charges d'Affaires
do not enjoy, therefore, so many honours as other
diplomatic envoys. And it must be specially mentioned
that a (Distinction ought to be made between a Charge*
d'Affaires who is the head of a Legation, and who,!
therefore, is accredited from Foreign Office to Foreign!
Office, and a Charge d' Affaires ad interim. The latter
is a member of a Legation whom the head of the Lega-
tion delegates for the purpose of taking his place during
absence on leave. Such Charge d'Affaires ad interim,
who had better be called a Charge des Affaires,1 ranks
1 See Rivier, II. pp. 451-452.
below the ordinary Charge (T Affaires ; he is not ac-

credited from Foreign Office to Foreign Office, but is
simply a delegate of the absent head of the Legation.
The Di- § 369. All the Diplomatic Envoys accredited to the
corp£ 1C same State form, according to a diplomatic usage, a
body which is styled the " Diplomatic Corps." The
head of this body, the so-called " Doyen/' is the Papal
Nuncio, or, in case there is no Nuncio accredited, the/
oldest Ambassador, or, failing Ambassadors, the oldest
Minister Plenipotentiary, and so on. As the Diplo-^1
matic Corps is not a body legally constituted, it per-
forms no legal functions, but it is nevertheless of great
importance, as it watches over the privileges and
honours due to diplomatic envoys.
IV
APPOINTMENT OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 76-77— Phillimore, II. §§ 227-231— Twiss, I. §§ 212-214—

Ullmann, § 48— Calvo, III. §§ 1343-1345— Bonfils, Nos. 677-680—
Wheaton, §§ 217-220— Moore, IV. §§ 632-635.
Person § 370. International Law has no rules as regards the

ficatioiTof qualification of the individuals whom a State can
Etavo appoint as diplomatic envoys, States being naturally
competent to act according to discretion, although
of course there are many qualifications a diplomatic
envoy must possess to fill his office successfully. The
Municipal Laws of many States comprise, therefore,
many details as regards the knowledge and training
which a candidate for a permanent diplomatic post
must possess, whereas, regarding envoys ceremonial
even the Municipal Laws have no provisions at all.
The question is sometimes discussed whether females 1
1 See Mirus, " Das europaische trici del secoli XVII. e XVIII. e loro
Gesandtschaftsrecht," I. §§ 127- posizione nel diritto diplomatico "
128; Phillimore, II. § 134; and (1909).
Focherini, " Le Signore Ambascia-
APPOINTMENT OF DIPLOMATIC ENVOYS 447
might be appointed envoys. History relates a few

cases of female diplomatists. Thus, for example, Louis
XIV. of France accredited in 1646 Madame de Gue-
briant ambassador to the Court of Poland. During the
last two centuries, however, no such case has to my
knowledge occurred, although I doubt not that Inter-
national Law does not prevent a State from sending
a female as diplomatic envoy. But under the present
circumstances many States would refuse to receive her.
§ 371. The appointment of an individual as a diplo- Letter of
matic envoy is announced to the State to which he is
accredited in certain official papers to be handed in by p
the envoy to the receiving State. Letter of Credence
(lettre de creance) is the designation of the document
in which the head of the State accredits a permanent
ambassador or minister to a foreign State. Every such
envoy receives a sealed Letter of Credence and an
open copy. As soon as the envoy arrives at his des-
tination, he sends the copy to the Foreign Office in
order to make his arrival officially known. The sealed
original, however, is handed in personally by the envoy
to the head of the State to whom he is accredited.
Charges d' Affaires receive a Letter of Credence too, but
as they are accredited from Foreign Office to Foreign
Office, their Letter of Credence is signed, not by the
head of their home State, but by its Foreign Office.
Now a permanent diplomatic envoy needs no other
empowering document in case he is not entrusted with
any task outside the limits of the ordinary business of
a permanent legation. But in case he is entrusted
with any such task, as, for instance, if any special
treaty or convention is to be negotiated, he requires a
special empowering document — namely, the so-called
Full Powers (Pleins Pouvoirs). They are given in
Letters Patent signed by the head of the State, and
they are either limited or unlimited Full Powers, accord-
ing to the requirements of the case. Such diplomatic
envoys as are sent, not to represent their home State

permanently, but on an extraordinary mission such as
representation at a Congress, negotiation of a special
treaty, and other transactions, receive full Powers
only, and no Letter of Credence. Every permanent or
other diplomatic envoy is also furnished with so-called
Instructions for the guidance of his conduct as regards
the objects of his mission. But such Instructions are
a matter between the Envoy and his home State ex-
clusively, and they have therefore, although they may
otherwise be very important, no importance for Inter-
national Law. Every permanent diplomatic envoy
receives, lastly, Passports for himself and his suite
specially made out by the Foreign Office. These Pass-
ports the envoy after his arrival deposits at the Foreign
Office of the State to which he is accredited, where they
remain until he himself asks for them because he desires
to leave his post, or until they are returned to him on
his dismissal.
combined § 372. As a rule, a State appoints different indi-
Legations. yûals as permanent diplomatic envoys to different
States, but sometimes a State appoints the same indi-
vidual as permanent diplomatic envoy to several States.
As a rule, further, a diplomatic envoy represents one
State only. But occasionally several States appoint
the same individual as their envoy, so that one envoy
represents several States.
Appoint- § 373. In former times States used frequently l to
sevenS* appoint more than one permanent diplomatic envoy as
Envoys, their representative in a foreign State. Although this
would hardly occur nowadays, there is no rule against
such a possibility. And even now it happens frequently
that States appoint several envoys for the purpose of
representing them at Congresses and Conferences. In
such cases one of the several envoys is appointed senior,
to whom the others are subordinate.
1 See Mirus, op. cit. I. §§ 117-119.
RECEPTION OF DIPLOMATIC ENVOYS 449
RECEPTION OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 65-67— Hall, § 98— Phillimore, II. §§ 133-139— Twiss, I. §§ 202-
203— Taylor, §§ 285-290— Moore, IV. §§ 635, 637-638— Martens, II. § 8—
Calvo, III. §§ 1353-1356— Pradier-Fodere, III. §§ 1253-1260— Fiore, II.
Nos. 1118-1120— Rivier, I. pp. 455-457.
§ 374. Every member of the Family of Nations that Duty to

possesses the passive right of legation is under ordi- Dipio-
nary circumstances bound to receive diplomatic envoys Envoys.
accredited to itself from other States for the purpose
of negotiation. But the duty extends neither to the
reception of permanent envoys nor to the reception of
temporary envoys under all circumstances.
(1) As regards permanent envoys, it is a generally
recognised fact that a State is as little bound to receive
them as it is to send them. Practically, however, every
full-Sovereign State which desires its voice to be heard
among the States receives and sends permanent envoys,
as without such it would, under present circumstances,
be impossible for a State to have any influence what-
ever in international affairs. It is for this reason that
Switzerland, which in former times abstained entirely
from sending permanent envoys, has abandoned her
former practice and nowadays sends and receives
several. The insignificant Principality of Lichtenstein
is, as far as I know, the only full-Sovereign State which
neither sends nor receives one single permanent legation.
But a State may receive a permanent legation from
one- State and refuse to do so from another. Thus,
the Protestant States never received a permanent lega-
tion from the Popes, even when the latter were heads
of a State, and they still observe this rule, although one
or another of them, such as Prussia for example, keeps
a permanent legation at the Vatican.
(2) As regards temporary envoys, it is likewise a
generally recognised fact among those writers who
VOL. i. 2F
assert the duty of a State to receive under ordinary

circumstances temporary envoys that there are excep-
tions to that rule. Thus, for example, a State which
knows beforehand the object of a mission and does not
wish to negotiate thereon can refuse to receive the
mission. Thus, further, a belligerent can refuse 1 to
receive a legation from the other belligerent, as war
involves the rupture of all peaceable relations.
Refusal to
receive a,
§ 375. But the refusal to receive an envoy must not
£ i i • i i ri
certain be confounded with the retusal to receive
• a certain
visual. individual as envoy. A State may be ready to receive
a permanent or temporary envoy, but may object to
the individual selected for that purpose. International
Law gives no right to a State to insist upon the recep-
tion of an individual appointed by it as diplomatic
envoy. Every State can refuse to receive as envoy a
person objectionable to itself. And a State refusing
an individual envoy is neither compelled to specify what
kind of objection it has, nor to justify its objection.
Thus, for example, most States refuse to receive one of
their own subjects as an envoy from a foreign State.2
Thus, again, the King of Hanover refused in 1847 to
receive a minister appointed by Prussia, because the
individual was of the Koman Catholic faith. Italy
refused in 1885 to receive Mr. Keiley as ambassador of
the United States of America because he had in 1871
protested against the annexation of the Papal States.
1 But this is not generally recog- of its embassy and received by Great
nised. See Vattel, IV. § 67 ; Philli- Britain in that capacity without an
more, II. § 1 38 ; and Pradier-Fodere',
III. No. 1255. express subject
remain condition that jurisdiction,
to British he should
a In case a State receives one of was exempt from British jurisdiction,
its own subjects as diplomatic envoy See, however, article 15 of the
of a foreign State, it has to grant Reglement sur les Immunites Diplo-
him all the privileges of such envoys, matiques, adopted in 1895 by the
including exterritoriality. Thus in Institute of International Law (see
the case of Macartney v. Garbutt and Annuaire, XIV. p. 244), which denies
others (1890, L.R. 24 Q.B. 368) it was to such an individual exemption
decided that a British subject from jurisdiction. See also Philli-
accredited to Great Britain by the more, II. § 135, and Twiss, I. § 203.
Chinese Government as a Secretary
RECEPTION OF DIPLOMATIC ENVOYS 451
And when the United States sent the same gentleman

as ambassador to Austria, the latter refused him recep-
tion on the ground that his wife was said to be a Jewess.
Although, as is apparent from these examples, no State
has a right to insist upon the reception of a certain
individual as envoy, in practice States are often offended
when reception is refused. Thus, in 1832 England did
not cancel for three years the appointment of Sir Strat-
ford Canning as ambassador to Eussia, although the
latter refused reception, and the post was practically
vacant. In 1885, when, as above mentioned, Austria
refused reception to Mr. Keiley as ambassador of the
United States, the latter did not appoint another, al-
though Mr. Keiley resigned, and the legation was for
several years left to the care of a Charge d'Affaires.1
To avoid such conflicts it is a good practice of many
States never to appoint an individual as envoy without
having ascertained beforehand whether the individual
would be persona grata. And it is a customary rule of
International Law that a State which does not object
to the appointment of a certain individual, when its
opinion has been asked beforehand, is bound to receive
such individual.2
§ 376. In case a State does not object to the re- Mode and
ception of a person as diplomatic envoy accredited to of
itself, his actual reception takes place as soon as he tion-
has arrived at the place of his designation. But the
mode of reception differs according to the class to which
the envoy belongs. If he be one of the first, second,
or third class, it is the duty of the head of the State
to receive him solemnly in a so-called public audience
with all the usual ceremonies. For that purpose the
1 See Moore, IV. § 638, p. 480. whom reception as an envoy is re-

2 The question is of interest fused. I think the question ought to
whether the privileges due to dip- be answered in the affirmative ; see,
lomatists must be granted on his however, Moore, IV. § 666, p. 668.
journey home to an individual to
envoy sends a copy of his credentials to the Foreign

Office, which arranges a special audience with the head
of the State for the envoy, when he delivers in person
his sealed credentials.1 If the envoy be a Charge
d'Affaires only, he is received in audience by the Secre-
tary of Foreign Affairs, to whom he hands his credentials.
Through the formal reception the envoy becomes
officially recognised and can officially commence to
exercise his functions. But such of his privileges as
exterritoriality and the like, which concern the safety
and inviolability of his person, must be granted even
before his official reception, as his character as diplo-
matic envoy is considered to date, not from the time
of his official reception, but from the time when his
credentials were handed to him on leaving his home
State, his passports furnishing sufficient proof of his
diplomatic character.
Reception § 377. It must be specially observed that all these
of Envoys details regarding the reception of diplomatic envoys
grosses accredited to a State do not apply to the reception of
ferences! envoys sent to represent the several States at a Congress
or Conference. As such envoys are not accredited to
the State on whose territory the Congress or Conference
takes place, such State has no competence to refuse the
reception of the appointed envoys, and no formal and
official reception of the latter by the head of the State
need take place. The appointing States merely notify
the appointment of their envoys to the Foreign Office of
the State on whose territory the transactions take place,
the envoys call upon the Foreign Secretary after their
arrival to introduce themselves, and they are cour-
teously received by him. They do not, however, hand
in to him their Full Powers, but reserve them for the
first meeting of the Congress or Conference, where they
produce them in exchange with one another.
1 Details concerning reception of envoys are given by Twiss, I. § 215,
and Rivier, I. p. 467.
FUNCTIONS OF DIPLOMATIC ENVOYS 453
VI
FUNCTIONS OF DIPLOMATIC ENVOYS
Rivier, I. § 37— Ullmann, § 49— Bonfils, Nos. 681-683— Pradier-Foder6, III.

§§ 1346-1376.
§ 378. A distinction must be made between functions On pipio-

of permanent envoys and of envoys for temporary Functions
purposes. The functions of the latter, who are either in£eneral-
envoys ceremonial or such envoys political as are
only temporarily accredited for the purpose of some
definite negotiations or as representatives at Congresses
and Conferences, are clearly demonstrated by the
very purpose of their appointment. But the functions
of the permanent envoys demand a closer considera-
tion. These regular functions may be grouped together
under the heads of negotiation, observation, and pro-
tection. But besides these regular functions a diplomatic
envoy may be charged with other and more miscel-
laneous functions.
§ 379. A permanent ambassador or other envoy Negotia-
represerits his home State in the totality of its inter- tion'
national relations not only with the State to which he
is accredited, but also with other States. He is the
mouthpiece of the head of his home State and its
Foreign Secretary as regards communications to be
made to the State to which he is accredited. He like-
wise receives communications from the latter and
reports them to his home State. In this way not only
are international relations between these two States
fostered and negotiated upon, but such international
affairs of other States as are of general interest to all
or a part of the members of the Family of Nations are
also discussed. Owing to the fact that all the more
important Powers keep permanent legations accredited
to one another, a constant exchange of views in regard
to affairs international is taking place between them.
qbserva- § 380. But these are not all the functions of per-
manent diplomatic envoys. Their task is, further, to
observe attentively every occurrence which might affect
the interest of jbheir home States, and to report such
observations to their Governments. It is through
these reports that every member of the Family of
Nations is kept well informed in regard to the army
and navy, the finances, the public opinion, the com-
merce and industry of foreign countries. And it must
be specially observed that no State that receives
diplomatic envoys has a right to prevent them from
exercising their function of observation.
Protec- § 381. A third task of diplomatic envoys is the
protection of the persons, property, and interests of
such subjects of their home States as are within the
boundaries of the State to which they are accredited.
If such subjects are wronged without being able to find
redress in the ordinary way of justice, and ask the
help of the diplomatic envoy of their home State, he
must be allowed to afford them protection. It is, how-
ever, for the Municipal Law and regulations of his home
State, and not for International Law, to prescribe to an
envoy the limits within which he has to afford protec-
tion to his compatriots.
ianeous § ^^* Negotiation, observation, and protection are
Functions, tasks common to all diplomatic envoys of every State.
But a State may order its permanent envoys to perform
other tasks, such as the registration of deaths, births,
and marriages of subjects of the home State, legalisation
of their signatures, making out of passports for them,
and the like. But in doing this a State must be careful
not to order its envoys to perform such tasks as are by
the law of the receiving State exclusively reserved to
its own officials. Thus, for instance, a State whose
laws compel persons who intend marriage to conclude
it in presence of its registrars, need not allow a foreign
POSITION OF DIPLOMATIC ENVOYS 455
envoy to legalise a marriage of compatriots before its

registration by the official registrar. So, too, a State '
need not allow a foreign envoy to perform an act which '
is reserved for its jurisdiction, as, for instance, the ex- .
amination of witnesses on oath.
§ 383. But it must be specially emphasised that Envoys
envoys must not interfere with the internal political interfere
life of the State to which they are accredited. It cer-
tainly belongs to their functions to watch the political
events and the political parties with a vigilant eye and
to report their observations to their home States. But
they have no right whatever to take part in that poli-
tical life itself, to encourage a certain political party,
or to threaten another. If nevertheless they do so,
they abuse their position. And it matters not whether
an envoy acts thus on his own account or on instruc-
tions from his home State. No strong self-respecting
State will allow a foreign envoy to exercise such inter-
ference, but will either request his home State to recall
him and appoint another individual in his place or,
in case his interference is very flagrant, hand him his
passports and therewith dismiss him. History records
many instances of this kind,1 although in many cases
it is doubtful whether the envoy concerned really
abused his office for the purpose of interfering with
internal politics.
VII
POSITION OF DIPLOMATIC ENVOYS
§ 384. Diplomatic envoys are just as little subjects Dipio-

of International Law as are heads of States ; and the Envoys
arguments regarding the position of such heads 2 must j£j®°ts of
1 See Hall (§ 98**), Taylor (§ 322), passports in 1888 from the United national
and Moore (IV. § 640), who discuss a States of America for an alleged inter- Law-
number of cases, especially that of ference in the Presidential election.
Lord Sackville, who received his 2 See above, § 344.
also be applied to the position of diplomatic envoys,

which is given to them by International Law not as
individuals but as representative agents of their States.
It is derived, not from personal rights, but from rights
and duties of their home States and the receiving States.
All the privileges which according to International Law
are possessed by diplomatic envoys are not rights
given to them by International Law, but rights given
by the Municipal Law of the receiving States in com-
pliance with an international right of their home States.
For International Law gives a right to every State to
demand for its diplomatic envoys certain privileges
from the Municipal Law of a foreign State. Thus, a
diplomatic envoy is not a subject but an object of
International Law, and is in this regard like any other
individual.
privileges § 385. Privileges due to diplomatic envoys, apart
Dipio° from ceremonial honours, have reference to their in-
Envoys, violability- and to their so-called exterritoriality. The
reasons why these privileges must be granted are that
diplomatic envoys are representatives of States and of
their dignity,1 and, further, that they could not exercise
their functions perfectly unless they enjoyed such
privileges. For it is obvious that, were they liable to
ordinary legal and political interference like other
individuals and thus more or less dependent on the
good-will of the Government, they might be influenced
by personal considerations of safety and comfort to
such a degree as would materially hamper the exercise
of their functions. It is equally clear that liability to
interference with their full and free intercourse with
their home States through letters, telegrams, and
couriers would wholly nullify their raison d'etre. In
this case it would be impossible for them to send inde-
pendent and secret reports to or receive similar instruc-
INVIOLABILITY OF DIPLOMATIC ENVOYS 457
tions from their home States. From the consideration

of these and various cognate reasons their privileges
seem to be inseparable attributes of the very existence
of diplomatic envoys.1
VIII
INVIOLABILITY OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 80-107— Hall, §§ 50, 98*— Phillimore, II. §§ 154-175— Twiss.
I. §§ 216-217— Moore, IV. §§ 657-659— Ullmann, § 50— Geffcken in
Holtzendorff, III. pp. 648-654— Rivier, I. § 38— Nys, II. pp. 372-374 —
Bonfils, Nos. 684-699— Pradier-Fodere, III. §§ 1382-1393— Merignhac, II.
pp. 264-273— Fiore, II. Nos. 1127-1143— Calvo, III. §§ 1480-1498—
Martens, II. § 11 — Crouzet, " De 1'inviolabilite . . . des agents
diplomatiques " (1875).
§ 386. Diplomatic envoys are just as sacrosanct as Protec-

heads of States. They must, therefore, on the one to°DipUio-
hand, be afforded special protection as regards the
safety of their persons, and, on the other hand, they
must be exempted from every kind of criminal juris-
diction of the receiving States. Now the protection
due to diplomatic envoys must find its expression not
only in the necessary police measures for the preven-
tion of offences, but also in specially severe punish-
ments to be inflicted on offenders. Thus, according to
English Criminal Law,2 every one is guilty of a mis-
demeanour who, by force or personal restraint, violates
any privilege conferred upon the diplomatic representa-
tives of foreign countries, or who 3 sets forth or prose-
cutes or executes any writ or process whereby the
person of any diplomatic representative of a foreign
1 The Institute of International 3 7 Anne, c. 12, sect. 3-6. This
Law, at its meeting at Cambridge statute, which was passed in 1708 in
in 1895, discussed the privileges of consequence of the Russian Am-
diplomatic envoys, and drafted a bassador in London having been
body of seventeen rules in regard arrested for a debt of £50, has always
thereto ; see Annuaire, XIV. p. 240. been considered as declaratory of the
2 See Stephen's Digest, articles existing law in England, and not as
96-97. creating new law.
country or the person of a servant of any such repre-

sentative isarrested or imprisoned. The protection of
diplomatic envoys is not restricted to their own person,
but must be extended to the members of their family
and suite, to their official residence, their furniture,
carriages, papers, and likewise to their intercourse with
their home States by letters, telegrams, and special
messengers. Even after a diplomatic mission has come
to an end, the archives of an Embassy must not be
touched, provided they have been put under seal and
confided to the protection of another envoy.1
Exemp- §387. As regards the exemption of diplomatic
criminal envoys from criminal jurisdiction, theory and practice of
tionisdic International Law agree nowadays 2 upon the fact that
the receiving States have no right, under any circum-
stances whatever, to prosecute and punish diplomatic
envoys. But among writers on International Law the
question is not settled whether the commands and in-
junctions ofthe laws of the receiving States concern
diplomatic envoys at all, so that the latter have to
comply with such commands and injunctions, although
the fact is established that they can never be prosecuted
and punished for any breach.3 This question ought
to be decided in the negative, for a diplomatic envoy
must in no point be considered under the legal authority
of the receiving State. But this does not mean that a
diplomatic envoy must have a right to do what he
likes. The presupposition of the privileges he enjoys
is that he acts and behaves in such a manner as har-
monises with the internal order of the receiving State.
He is therefore expected voluntarily to comply with
all such commands and injunctions of the Municipal Law
as do not restrict him in the effective exercise of his
1 See above, § 106 (case of Mon- 3 The point is thoroughly dis-
tagnini), and below, § 411. cussed by Beling, "Die strafrecht-
* In former times there was no liche Bedeutung der Exterritoria-
unanimity amongst
Philliuiore, II. § 154. publicists. See litat " (1896), pp. 71-90.
INVIOLABILITY OF DIPLOMATIC ENVOYS 459
functions. In case he acts and behaves otherwise, and

disturbs thereby the internal order of the State, the
latter will certainly request his recall or send him back
at once.
History records many cases of diplomatic envoys
who have conspired against the receiving States, but
have nevertheless not been prosecuted. Thus, in 1584,
the Spanish Ambassador Mendoza in England plotted
to depose Queen Elizabeth ; he was ordered to leave
the country. In 1586 the French Ambassador in
England, I/Aubespine, conspired against the life of
Queen Elizabeth ; he was simply warned not to commit
a similar act again. In 1654 the French Ambassador
in England, De Bass, conspired against the life of
Cromwell ; he was ordered to leave the country within
twenty-four hours.1
§ 388. As diplomatic envoys are sacrosanct, the Limita-
principle of their inviolability is generally recognised. iîoV
But there is one exception. For if a diplomatic envoy bility>
commits an act of violence which disturbs the internal
order of the receiving State in such a manner as makes
it necessary to put him under restraint for the purpose
of preventing similar acts, or in case he conspires against
the receiving State and the conspiracy can be made
futile only by putting him under restraint, he may be
arrested for the time being, although he must in due time
be safely sent home. Thus in 1717 the Swedish Am-
bassador Gyllenburg in London, who was an accom-
plice in a plot against King George I., was arrested and
his papers were searched. In 1718 the Spanish Am-
bassador Prince Cellamare in France was placed in
custody because he organised a conspiracy against the
French Government.2 And it must be emphasised that
a diplomatic envoy cannot make it a point of complaint
1 These and other cases are dis- given by Phillimore, II. §§ 166 and
cussed by Phillimore, II. §§ 160-165. 170.
2 Details regarding these cases are
if injured in consequence of his own unjustifiable be-

haviour, asfor instance in attacking an individual who
in self-defence retaliates, or in unreasonably or wilfully
placing himself in dangerous or awkward positions, such
as in a disorderly crowd.1
IX
EXTERRITORIALITY OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 80-119— Hall, §§ 50, 52, 53— Westlake, I. pp. 263-273—
Phillimore, II. §§ 176-210— Taylor, §§ 299-315— Twiss, I. §§ 217-221—
Moore, II. §§ 291-304 and IV. §§ 660-669— Ullmann, § 50— Geffcken in
Holtzendorff, III. pp. 654-659— Nys, II. pp. 353-385— Rivier, I. 38—
Bonfils, Nos. 700-721— Pradier-Fodere, III. §§ 1396-1495— Merignhac, II.
pp. 249-293— Fiore, II. Nos. 1145-1 163— Calvo, III. §§1499-1531— Martens,
II. §§ 12-14— Gottschalck, "Die Exterritorialitat der Gesandten"
(1878)— Heyking, " L'exterritorialit6 " (1889)— Odier, " Des privileges et
immunit^s des agents diplomatiques " (1890) — Vercamer, " Des franchises
diplomatiques et specialement de 1'exterritorialite " (1891) — Droin,
" L'exterritorialit6 des agents diplomatiques" (1895) — Mirre, "Die
Stellung der volkerrechtlichen Literatur zur Lehre von den sogenannten
Nebenrechten der gesandschaftlichen Functionare " (1904).
Reason § 389. The exterritoriality which must be granted

diplomatic envoys by the Municipal Laws of all the
- members of the Family of Nations is not, as in the
toriaiity. case of sovereign heads of States, based on the principle
par in parem non habet imperium, but on the necessity
that envoys must, for the purpose of fulfilling their
duties, be independent of the jurisdiction, the control,
and the like, of the receiving States. Exterritoriality,
in this as in every other case, is a fiction only, for diplo-
matic envoys are in reality not without, but within, the
territories of the receiving States. The term " Ex-
ter itoriality "is nevertheless valuable, because it
demonstrates clearly the fact that envoys must in most
points be treated as though they were not within the
1 See article 6 of the rules regard- at its meeting at Cambridge in 1895
ing
ig diplomatic immunities adopted
adopted (Annuaire, XIV. p. 240).
by the }Ii
Institute of International Law
EXTERRITORIALITY OF DIPLOMATIC ENVOYS 461
territory of the receiving States.1 And the so-called

exterritoriality of envoys is actualised by a body of
privileges which must be severally discussed.
§ 390. The first of these privileges is immunity of immunity
domicile, the so-called Franchise de I'hotel. The present iJ£oml
immunity of domicile has developed from the former
condition of things, when the official residences of envoys
were in every point considered to be outside the terri-
tory of the receiving States, and when this exterri-
toriality was in many cases even extended to the whole
quarter of the town in which such a residence was
situated. One used then to speak of a Franchise du
quartier or the Jus quarteriorum. And an inference
from this Franchise du quartier was the so-called right
of asylum, envoys claiming the right to grant asylum
within the boundaries of their residential quarters to
every individual who took refuge there.2 But already
in the seventeenth century most States opposed this
Franchise du quartier, and it totally disappeared in the
eighteenth century, leaving behind, however, the claim
of envoys to grant asylum within their official resi-
dences. Thus, when in 1726 the Duke of Kipperda, first
Minister to Philip V. of Spain, who was accused of high
treason and had taken refuge in the residence of the
English Ambassador in Madrid, was forcibly arrested
there by order of the Spanish Government, the British
Government complained of this act as a violation of
International Law.3 Twenty-one years later, in 1747,
a similar case occurred in Sweden. A merchant named
Springer was accused of high treason and took refuge
1 With a few exceptions (see not consider it postulated by Inter -
Droin, " L'exterritorialite des agents national Law, for he says of this
diplomatiques " (1895), pp. 32-43), right (II. c. 18, § 8): "Ex con-
all publicists accept the term and cessione pendet ejus apud quern agit.
the fiction of exterritoriality. Istud enim juris gentium non est."
2 Although this right of asylum See also Bynkershoek, "De foro
was certainly recognised by the legat." c. 21.
States in former centuries, it is of 3 See Martens, " Causes Celebres,"
interest to note that Grotius did I. p. 178.
in the house of the English Ambassador at Stockholm.

On the refusal of the English envoy to surrender Springer,
the Swedish Government surrounded the embassy with
troops and ordered the carriage of the envoy, when
leaving the embassy, to be followed by mounted soldiers.
At last Springer was handed over to the Swedish
Government under protest, but England complained and
called back her ambassador, as Sweden refused to make
the required reparation.1 As these two examples show,
the right of asylum, although claimed and often con-
ceded, was nevertheless not universally recognised.
During the nineteenth century all remains of it van-
ished, and when in 1867 the French envoy in Lima
claimed it, the Peruvian Government refused to con-
cede it.2
Nowadays the official residences of envoys are in
a sense and in some respects only considered as though
they were outside the territory of the receiving States.
For the immunity of domicile granted to diplomatic
envoys comprises the inaccessibility of these residences
to officers of justice, police, or revenue, and the like,
of the receiving States without the special consent of
the respective envoys. Therefore, no act of jurisdic-
tion or administration of the receiving Governments
can take place within these residences, except by special
permission of the envoys. And the stables and car-
riages of envoys are considered to be parts of their
1 See Martens, " Causes Celebres," Vessels " (1892). That actually in
II. p. 52. times of revolution and of persecution
* The South American States, of certain classes of the population
Chili excepted, still grant the right asylum is occasionally granted to
to foreign envoys to afford asylum to refugees and respected by the local
political refugees in time of revolu- authorities, there is no doubt, but
tion. It is, however, acknowledged this occasional practice does not
that this right is not based upon a shake the validity of the general rule
rule of International Law, but merely of International Law according to
upon local usage. See Hall, § 62 ; which there is no obligation on the
Westlake, I. p. 272: Moore, II. §§ part of the receiving State to grant to
291-304 ; Chilbert in A.J. III. (1909), envoys the right of affording asylum
pp. 562-595 ; Robbin in R.G. XV. to individuals not belonging to their
(1908), pp. 461-508 ; Moore, "Asylum suites. See, however, Moore, II.
in Legations and Consulates, and in § 293.
residences. But such immunity of domicile is granted

only in so far as it is necessary for the independence
and inviolability of envoys and the inviolability of
their official documents and archives. If an envoy
abuses this immunity, the receiving Government need
not bear it passively. There is, therefore, no obliga-
tion on the part of the receiving State to grant an
envoy the right of affording asylum to criminals or to
other individuals not belonging to his suite. Of course,
an envoy need not deny entrance to criminals who
want to take refuge in the embassy. But he must
surrender them to the prosecuting Government at its
request, and, if he refuses, any measures may be taken
to induce him to do so, apart from such as would in-
volve an attack on his person. Thus, the embassy may
be surrounded by soldiers, and eventually the criminal
may even forcibly be taken out of the embassy. But
such measures of force are justifiable only if the case is
an urgent one, and after the envoy has in vain been
required to surrender the criminal. Further, if a crime
is committed inside the house of an envoy by an indi-
vidual who does not enjoy personally the privilege of
exterritoriality, the criminal must be surrendered to
the local Government. The case of Nikitschenkow,
which occurred in Paris in 1867, is an instance thereof.
Nikitschenkow, a Eussian subject not belonging to the
Russian Legation, made an attempt on and wounded a
member of that legation within the precincts of the
embassy. The French police were called in and arrested
the criminal. The Russian Government required his
extradition, maintaining that, as the crime was com-
mitted inside the Russian Embassy, it fell exclusively
under Russian jurisdiction ; but the French Govern-
ment refused extradition and Russia dropped her claim.
Again, an envoy has no right to seize a subject of
his home State who is within the boundaries of the
receiving State and keep him under arrest inside the.

embassy with the intention of bringing him away into
the power of his home State. An instance thereof is
the case of the Chinaman Sun Yat Sen which occurred
in London in 1896. This was a political refugee from
China living in London. He was induced to enter the
house of the Chinese Legation and kept under arrest
there in order to be conveyed forcibly to China, the
Chinese envoy contending that, as the house of the
legation was Chinese territory, the English Government
had no right to interfere. But the latter did interfere,
and Sun Yat Sen was released after several days.
As a contrast to this case may be mentioned that
of Kalkstein which occurred on the Continent in 1670.
Colonel von Kalkstein, a Prussian subject, had fled to
Poland for political reasons since he was accused of
high treason against the Prussian Government. Now
Frederic William, the great Elector of Brandenburg,
ordered his diplomatic envoy at Warsaw, the capital
of Poland, to obtain possession of the person of Kalk-
stein. On November 28, 1670, this order was carried
out. Kalkstein was secretly seized, and, wrapped up
in a carpet, was carried across the frontier. He was
afterwards executed at Memel.
8 391. The second privilege of envoys in reference
tionfrom
Criminal to their.exterritoriality., . ,., . ,, .
is ,. J .
their exemption . . ,
from criminal
an(^ c^^ jurisdiction. As their exemption from crim-
tion- inal jurisdiction is also a consequence of their inviola-
bility, ithas already been discussed,1 and we have here
to deal with their exemption from civil jurisdiction
only. No civil action of any kind as regards debts and
the like can be brought against them in the Civil Courts
of the receiving States. They cannot be arrested for
debts, nor can their furniture, their carriages, their
horses, and the like, be seized for debts. They cannot
1 See above, §§ 387-388.
be prevented from leaving the country for not having

paid their debts, nor can their passports be refused to
them on the same account. Thus, when in 1772 the
French Government refused the passports to Baron de
Wrech, the envoy of the Landgrave of Hesse-Cassel at
Paris, for not having paid his debts, all the other
envoys in Paris complained of this act of the French
Government as a violation of International Law.1 But
the rule that an envoy is exempt from civil juris-
diction has certain exceptions. If an envoy enters an
appearance to an action against himself, or if he him-
self brings an action under the jurisdiction of the
receiving State, the courts of the latter have civil
jurisdiction in such cases over him. And the same
is valid as regards real property held within the boun-
daries of the receiving State by an envoy, not in his
official character, but as a private individual, and as
regards mercantile 2 ventures in which he might engage
on the territory of the receiving State.
§ 392. The third privilege of envoys in reference Exemp-
to their exterritoriality is exemption from subpoena as subpoena
witnesses. No envoy can be obliged, or even required,
to appear as a witness in a civil or criminal or adminis-
trative Court, nor is an envoy obliged to give evidence
before a Commissioner sent to his house. If, however,
an envoy chooses for himself to appear as a witness or
to give evidence of any kind, the Courts can make use
of such evidence. A remarkable case of this kind is
that of the Dutch envoy Dubois in Washington, which
happened in 1856. A case of homicide occurred in
1 See Martens, " Causes Celebres," grants, therefore, to foreign envoys
II. p. 282. even in such cases exemption from
2 The statute of 7 Anne, c. 12, on local jurisdiction ; see the case (1859)
which the exemption of diplomatic of Magdalena Steam Navigation Co.
envoys from English jurisdiction is ' v. Martin, 2 Ellis and Ellis 94, over-
based, does not exclude such envoy ruling the case of Taylor v. Best, 14
as embarks on mercantile ventures C.B. 487. See also Westlake, I.
from the benefit of the Act, and p. 267.
the practice of the English Courts
VOL. i. 2a
the presence of M. Dubois, and, as his evidence was

absolutely necessary for the trial, the Foreign Secretary
of the United States asked Dubois to appear before the
Court as a witness, recognising the fact that Dubois had
no duty to do so. When Dubois, on the advice of all
the other diplomatic envoys in Washington, refused to
comply with this desire, the United States brought the
matter before the Dutch Government. The latter, how-
ever, approved of Dubois' refusal, but authorised him to
give evidence under oath before the American Foreign
Secretary. As, however, such evidence would have had
no value at all according to the local law, Dubois' evi-
dence was not taken, and the Government of the United
States asked the Dutch Government to recall him.1
§ 393. The fourth privilege of envoys in reference to
their exterritoriality is exemption from the police of
the receiving States. Orders and regulations of the
police do in no way bind them. On the other hand,
this exemption from police does not contain the privi-
lege of an envoy to do what he likes as regards matters
which are regulated by the police. Although such
regulations can in no way bind him, an envoy enjoys
the privilege of exemption from police under the pre-
supposition that he acts and behaves in such a manner
as harmonises with the internal order of the receiving
State. He is, therefore, expected to comply voluntarily
with all such commands and injunctions of the local
police as, on the one hand, do not restrict him in the
effective exercise of his duties, and, on the other hand,
are of importance for the general order and safety of
the community. Of course, he cannot be punished if
he acts otherwise, but the receiving Government may
request his recall or even be justified in other measures
of such a kind as do not injure his inviolability. Thus,
for instance, if in time of plague an envoy were not
1 See Wharton, I. § 98 ; Moore, IV. § 662 ; and Calvo, III. § 1520.
voluntarily to comply with important sanitary arrange-

ments of the local police, and if there were great danger
in delay, a case of necessity would be created and the
receiving Government would be justified in the exercise
of reasonable pressure upon the envoy.
§ 394. The fifth privilege of envoys in reference to
their exterritoriality is exemption from taxes and the Taxes and
like. As an envoy, through his exterritoriality, is thellke-
considered not to be subjected to the territorial supre-
macy of the receiving State, he must be exempt from
all direct personal taxation and therefore need not pay
either income-tax or other direct taxes. As regards
rates, it is necessary to draw a distinction. Payment
of rates imposed for local objects from which an envoy
himself derives benefit, such as sewerage, lighting,
water, night-watch, and the like, can be required of the
envoy, although this is often 3 not done. Other rates,
however, such as poor-rates and the like, he cannot be
requested to pay. As regards customs duties, Interna-
tional Law does not claim the exemption of envoys
therefrom. Practically and by courtesy, however, the
Municipal Laws of many States allow diplomatic envoys
within certain limits the entry free of duty of goods
intended for their own private use. If the house of an
envoy is the property of his home State or his own
property, the house need not be exempt from property
tax, although it is often so by the courtesy of the re-
ceiving State. Such property tax is not a personal and
direct, but an indirect tax.
§ 395. A sixth privilege of envoys in reference to Right of
their exterritoriality is the so-called Eight of Chapel
(Droit de chapelle or Droit du culte). This is the privi-
lege of having a private chapel for the practice of his
1 As, for instance, in England Parkinson v. Potter, 16 Q.B. 152, and
where the payment of local rates Macartney v. Garbutt, L.E. 24 Q.B.
cannot be enforced by suit or distress 368. See also Westlake, I. p. 268.
against a member of a legation ; see
own religion, which must be granted to an envoy by

the Municipal Law of the receiving State. A privilege
of great worth in former times, when freedom of re-
ligious worship was unknown in most States, it has at
present an historical value only. But it has not dis-
appeared, and might become again of actual importance
in case a State should in the future give way to reac-
tionary intolerance. It must, however, be emphasised
that the right of chapel must only comprise the privilege
of religious worship in a private chapel inside the official
residence of the envoy. No right of having and tolling
bells need be granted. The privilege includes the office
of a chaplain, who must be allowed to perform every
religious ceremony within the chapel, such as baptism
and the like. It further includes permission to all the
compatriots of the envoy, even if they do not belong
to his retinue, to take part in the service. But the
receiving State need not allow its own subjects to take
part therein.
seif-juris- § 396. The seventh and last privilege of envoys in
diction, reference to their exterritoriality is self -jurisdiction
within certain limits. As the members of his retinue
are considered exterritorial, the receiving State has no
jurisdiction over them, and the home State may there-
fore delegate such civil and criminal jurisdiction to the
envoy. But no receiving State is required to grant
self- jurisdiction to an ambassador beyond a certain
reasonable limit. Thus, an envoy must have juris-
diction over his retinue in matters of discipline, he
must be able to order the arrest of a member of his
retinue who has committed a crime and is to be sent
home for his trial, and the like. But no civilised State
would nowadays allow an envoy himself to try a mem-
ber of his retinue. This was done in former centuries.
Thus, in 1603, Sully, who was sent by Henri IV. of
France on a special mission to England, called together
THEIR POSITION AS REGARDS THIRD STATES 469
a French jury in London and had a member of his

retinue condemned to death for murder. The con-
victed man was handed over for execution to the
English authorities, but James I. reprieved him.1
X
POSITION OF DIPLOMATIC ENVOYS AS REGARDS
THIRD STATES
Vattel, IV. §§ 84-86— Hall, §§ 99-101— Fhillimore, II. §§ 172-175— Taylor,

§§ 293-295— Moore, IV. §§ 643-644— Twiss, I. § 222— Wheaton, §§ 242-
247— Ullmann, § 52— Geffcken in Holtzendorff, III. pp. 665-668—
Heffter, § 207— Rivier, § 39— Nys, II. p. 390— Pradier-Fodere, III.
§ 1394— Fiore, II. Nos. 1143-1144— Calvo, III. §§ 1532-1539.
§ 397. Although, when an individual is accredited Possible

as diplomatic envoy by one State to another, these Cases'
two States only are directly concerned in his appoint-
ment, the question must be discussed, what position
such envoy has as regards third States in those cases
in which he comes in contact with them. Several such
cases are possible. An envoy may, first, travel through
the territory of a third State to 'reach the territory of
the receiving State. Or, an envoy accredited to a
belligerent State and living on the latter's territory
may be found there by the other belligerent who mili-
tarily occupies such territory. And, lastly, an envoy
accredited to a certain State might interfere with the
affairs of a third State.
f|v § 398. If an envoy travels through the territory of Envoy
a third State incognito or for his pleasure only, there t
is no doubt that he cannot claim any special privileges
whatever. He is in exactly the same position as any state.
other foreign individual travelling on this territory,
although by courtesy he might be treated with par-
ticular attention. But matters are different when an
1 See Martens, "Causes Cflfebres," I. p. 391. See also the two cases
reported by Calvo, III. § 1545.
envoy on his way from his own State to the State of his
destination travels through the territory of a third
State. If the sending and the receiving States are not
neighbours, the envoy probably has to travel through
the territory of a third State. Now, as the institution
of legation is a necessary one for the intercourse of
States and is firmly established by International Law,
there ought to be no doubt whatever that such third
State must grant the right of innocent passage (jus
transitus innoxii) to the envoy, provided that it is not
at war with the sending or the receiving State. But
no other privileges,1 especially those of inviolability
and exterritoriality need be granted to the envoy.
And the right of innocent passage does not include the
right to stop on the territory longer than is necessary
for the passage. Thus, in 1854, Soule, the envoy of
the United States of America at Madrid, who had
landed at Calais, intending to return to Madrid via
Paris, was provisionally stopped at Calais for the pur-
pose of ascertaining whether he intended to make a
stay in Paris, which the French Government wanted to
prevent, because he was a French refugee naturalised
in America and was reported to have made speeches
against the Emperor Napoleon. Soule at once left
Calais, and the French Government declared, during
the correspondence with the United States in the
matter, that there was no objection to Soule 'a traversing
France on his way to Madrid, but they would not allow
him to make a sojourn in Paris or anywhere else in
France.2
It must be specially remarked that no right of
passage need be granted if the third State is at war with
the sending or receiving State. The envoy of a belli-
1 The matter, which has always opinion of Grotius, Bynkershoek,
been disputed, is fully discussed by and Vattel.
Twiss, I. § 222, who also quotes the 2 See Wharton, I. § 97, and Moore,
IV. § 643.
THEIR POSITION AS REGARDS THIRD STATES 471
gerent, who travels through the territory of the other

belligerent to reach the place of his destination, may
be seized and treated as a prisoner of war. Thus, in
1744, when the French Ambassador, Marechal de Belle-
Isle, on his way to Berlin, passed through the territory
of Hanover, which country was then, together with
England, at war with France, he was made a prisoner
of war and sent to England.
§ 399. When in time of war a belligerent occupies Envoy
the capital of an enemy State and finds there envoys of
other States, these envoys » do not lose their diplomatic rent on _
occupied
privileges as long as the State to which they are ac- Enemy
credited is in existence. As military occupation does
not extinguish a State subjected thereto, such envoys
do not cease to be envoys. On the other hand, they
are not accredited to the belligerent who has taken
possession of the territory by military force, and the
question is not yet settled by International Law how
far the occupying belligerent has to respect the in-
violability and exterritoriality granted to such envoys
by the law of the land in compliance with a demand
of International Law. It may safely be maintained
that he must grant them the right to leave the occupied
territory. But must he likewise grant them the right
to stay ? Has he to respect their immunity of domicile
and their other privileges in reference to their exterri-
toriality ? Neither customary rules nor international
conventions exist as regards these questions, which
must, therefore, be treated as open. The only case
which occurred concerning this problem is that of Mr.
Washburne, ambassador of the United States in Paris
during the siege of that town in 1870 by the Germans.
This ambassador claimed the right of sending a mes-
senger with despatches to London in a sealed bag
through the German lines. But the Germans refused
to grant that right, and did not alter their decision
although the Government of the United States pro-

tested.1
§ 400. There is no doubt that an envoy must not
ing with interfere with affairs concerning the State to which he is
affthird°f accredited and a third State. If nevertheless he does
state. interfere, he enjoys no privileges whatever against such
third State. Thus, in 1734, the Marquis de Monti, the
French envoy in Poland, who took an active part in
the war between Poland and Kussia, was made a pri-
soner of war by the latter and not released till 1736,
although France protested.2
XI
THE RETINUE OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 120-124— Hall, § 51— Phillimore, II. §§ 186-193— Twiss, I.

§ 218— Moore, IV. §§ 664-665— Ullmann, §§ 47 and 51— Geffcken in
Holtzendorff, III. pp. 660-661— Heffter, § 221— Rivier, I. pp. 458-461—
Nys, II. pp. 386-390— Pradier-Fode"re, III. §§ 1472-1486— Fiore, II. Nos.
1164-1168— Calvo, III. §§ 1348-1350— Martens, II. § 16— Roederer,
"De 1'applicatiou des immunite's de I'ambassadeur au personnel de
1'ambassade " (1904), pp. 22-84.
Different § 401. The individuals accompanying an envoy

Member? officially, or in his private service, or as members of
ofRetinue. j^g familv> or as couriers, compose his retinue. The
members of the retinue belong, therefore, to four dif-
ferent classes. All those individuals who are officially
attached to an envoy are members of the legation and
are appointed by the home State of the envoy. To
this first class belong the Councillors, Attaches, Secre-
taries of the Legation ; the Chancellor of the Legation
and his assistants ; the interpreters, and the like ; the
chaplain, the doctor, and the legal advisers, provided
that they are appointed by the home State and sent
specially as members of the legation. A list of these
1 See below, vol. II. § 157, and - See Martens, " Causes Celebres,"
Wharton, I. § 97. I. p. 207.
THE RETINUE OF DIPLOMATIC ENVOYS 473
members of legation is handed over by the envoy to

the Secretary for Foreign Affairs of the receiving State
and is revised from time to time. The Councillors and
Secretaries of Legation are personally presented to the
Secretary for Foreign Affairs, and very often also to
the head of the receiving State. The second class com-
prises all those individuals who are in the private
service of the envoy and of the members of legation,
such as servants of all kinds, the private secretary of
the envoy, the tutor and the governess of his children.
The third class consists of the members of the family
of the envoy — namely, his wife, children, and such of
his other near relatives as live within his family and
under his roof. And, lastly, the fourth class consists
of the so-called couriers. They are the bearers of
despatches sent by the envoy to his home State, who on
their way back also bear despatches from the home
State to the envoy. Such couriers are attached to
most legations for the guarantee of the safety and
secrecy of the despatches.
§ 402. It is a universally recognised 1 rule of Inter- privileges
national Law that all members of a legation are as berô?
inviolable and exterritorial as the envoy himself. They Legation.
must, therefore, be granted by the receiving State
exemption from criminal and civil jurisdiction, exemp-
tion from police,2 subpoena as witnesses, and taxes. They
are considered, like the envoy himself, to retain their
domicile within their home State. Children born to
them during their stay within the receiving State are
considered born on the territory of the home State.
And it must be emphasised that it is not within the
envoy's power to waive these privileges of members
1 Some authors, however, plead Legation at Washington, was fined
for an abrogation of this rule. See by the police magistrate of Lee, in
Martens, II. § 16. Massachusetts, for furiously driving
2 A case of this kind occurred in a motor-car. But the judgment was
1904 in the United States. Mr. afterwards annulled, and the fine
Gurney, Secretary of the British imposed remitted.
of legation, although the home State itself can waive

these privileges. Thus when, in 1909, Wilhelm Beckert,
the Chancellor of the German Legation in Santiago de
Chili, murdered the porter of this legation, a Chilian
subject, and then set fire to the Chancery in order to
conceal his embezzlements of money belonging to the
legation, the German Government consented to his
being prosecuted in Chili ; he was tried, found guilty,
and executed at Santiago on July 5, 1910.
privileges § 403. It is a customary rule of International Law
Servants.6 that ^ne receiving State must grant to all persons in
the private service of the envoy and of the members
of his legation, provided such persons are not subjects
of the receiving State, exemption from civil and crim-
inal jurisdiction.1 But the envoy can disclaim these
exemptions, and these persons cannot then claim ex-
emption from police, immunity of domicile, and exemp-
tion from taxes. Thus, for instance, if such a private
servant commits a crime outside the residence of his
employer, the police can arrest him ; he must, however,
be at once released if the envoy does not waive the
exemption from criminal jurisdiction.
Privileges § 404. Although the wife of the envoy, his children,
of EnT0ily an(^ suca °^ k*s near relatives as live within his family
and under his roof belong to his retinue, there is a
distinction to be made as regards their privileges. His
wife must certainly be granted all his privileges in so
far as they concern inviolability and exterritoriality.
As regards, however, his children and other relatives,
no general rule of International Law can safely be said
to be generally recognised, but that they must be
1 This rule seems to be everywhere charged before a local magistrate,
recognised except in Great Britain. and the British Foreign Office re-
When, in 1827, a coachman of Mr. fused to recognise the exemption of
Gallatin, the American Minister in the coachman from the local juris-
London, committed an assault out- diction. See Wharton, I. § 94, and
side the embassy, he was arrested Hall, § 50.
in the stable of the embassy and
THE RETINUE OF DIPLOMATIC ENVOYS 475
granted exemption from civil and criminal jurisdiction.

But even this rule was formerly not generally recognised.
Thus, when in 1653 Don Pantaleon Sa, the brother of
the Portuguese Ambassador in London and a member
of his suite, killed an Englishman named Greenway, he
was arrested, tried in England, found guilty, and exe-
cuted.1 Nowadays the exemption from civil and crim-
inal jurisdiction of such members of an envoy's family
as live under his roof is always granted. Thus, when
in 1906 Carlo Waddington,2 the son of the Chilian
envoy at Brussels, murdered the secretary of the
Chilian Legation, the Belgian authorities did not take
any step to arrest him. Two days afterwards, however,
the Chilian envoy waived the privilege of the immunity
of his son, and on March 2 the Chilian Government like-
wise agreed to the murderer being prosecuted in Belgium.
The trial took place in July 1907, but Waddington was
acquitted by the Belgian jury.
§ 405.
?• i
To insure, ithe T
safety and •
secrecy A.of^the diplo- Privileges
j. J ofCouriers
matic despatches they bear, couriers must be granted Of Envoy.
exemption from civil and criminal jurisdiction and
afforded special protection during the exercise of their
office. It is particularly important to observe that they
must have the right of innocent passage through third
States, and that, according to general usage, those parts
of their luggage which contain diplomatic despatches
and are sealed with the official seal must not be opened
and searched. It is usual to provide couriers with
special passports for the purpose of their legitimation.
1 The case is discussed by Philli- 2 See R.G. XIV. (1907), pp.
more, II. § 169. 159-165.
XII
TERMINATION OF DIPLOMATIC MISSION
Vattel, IV. §§ 125-126— Hall, § 98**— Phillimore, II. §§ 237-241— Moore,

IV. §§ 636, 639, 640, 666— Taylor, §§ 320-323— Wheaton, §§ 250-251—
Ullmann, § 53— HeSter, §§ 223-226— Rivier, I. § 40— Nys, II. p. 392—
Bonfils, Nos. 730-732— Pradier-Foder6, III. §§ 1515-1535— Fiore, II.
Nos. 1169-1175— Calvo, III. §§ 1363-1367— Martens, II. § 17.
Termina- § 406. A diplomatic mission may come to an end

is- fr°m eleven different causes — namely, accomplishment
tinctionto of £ne obiect for which the mission was sent ;' expira-
Suspen- J
sion. tion of such Letters or Credence as were given to an
envoy for a specific time only ; recall of the envoy
by the sending State ; his promotion to a higher class ;
the delivery of passports to him by the receiving State ;
request of the envoy for his passports on account of
ill-treatment ; war between the sending and the re-
ceiving State ; constitutional changes in the headship
of the sending or receiving State ; revolutionary change
of government of the sending or receiving State ; ex-
tinction ofthe sending or receiving State ; and, lastly,
death of the envoy. These events must be treated
singly on account of their peculiarities. But the ter-
mination ofdiplomatic missions must not be confounded
with their suspension. Whereas from the foregoing
eleven causes a mission comes actually to an end, and
new Letters of Credence are necessary, a suspension
does not put an end to the mission, but creates an
interval during which the envoy, although he remains
in office, cannot exercise his office. Suspension may be
the result of various causes, as, for instance, a revolu-
tion within the sending or receiving State. Whatever
the cause may be, an envoy enjoys all his privileges
during the duration of the suspension.
Accom- § 407. A mission comes to an end through the ful-
filment ofits objects in all cases of missions for special
TERMINATION OF DIPLOMATIC MISSION 477
purposes. Such cases may be ceremonial functions like of object

representations at weddings, funerals, coronations ; or
notification of changes in the headship of a State, or
representation of a State at Conferences and Congresses ;
and other cases. Although the mission is terminated
through the accomplishment of its object, the envoys
enjoy all their privileges on their way home.
T
§ 408. If a Letter of Credence
......
for a specified time
. ., tion of
only is given to an envoy, his mission terminates with Letter of
the expiration of such time. A temporary Letter of Credence-
Credence may, for instance, be given to an individual
for the purpose of representing a State diplomatically
during the interval between the recall of an ambassador
and the appointment of his successor.
§ 409. The mission of an envoy, be he permanently Recall.
or only temporarily appointed, terminates through his
recall by the sending State. If this recall is not caused
by unfriendly acts of the receiving State but by other
circumstances, the envoy receives a Letter of Recall
from the head, or, in case he is only a Charge d' Affaires,
from the Foreign Secretary of his home State, and he 1
hands this letter over to the head of the receiving State
in a solemn audience, or in the case of a Charge d'Affaires
to the Foreign Secretary. In exchange for the Letter
of Recall the envoy receives his passports and a so-
called Lettre de recreance, a letter in which the head of
the receiving State (or the Foreign Secretary) acknow-
ledges the Letter of Recall. Although therewith his
mission ends, he enjoys nevertheless all his privileges
on his home journey.2 A recall may be caused by the
resignation of the envoy, by his transference to another
post, and the like. It may, secondly, be caused by the
outbreak of a conflict between the sending and the
1 But sometimes his successor Secretary in the case of Charges
presents the letter recalling his d'Afiaires.
predecessor to the head of the 2 See the interesting cases dis-
receiving State, or to the Foreign cussed by Moore, IV. § 666,
receiving State which leads to a rupture of diplomatic

intercourse, and under these circumstances the sending
State may order its envoy to ask for his passports and
depart at once without handing in a Letter of Eecall.
And, thirdly, a recall may result from a request of the
receiving State by reason of real or alleged misconduct
of the envoy. Such request of recall l may lead to a
rupture of diplomatic intercourse, if the receiving State
insists upon the recall, although the sending State does
not recognise the act of its envoy as misconduct.
Promo- § 410. When an envoy remains at his post, but is
higher * promoted to a higher class — for instance, when a Charge
class. d'Affaires is created a Minister Resident or a Minister
Plenipotentiary is created an Ambassador — his original
mission technically ends, and he receives therefore a
new Letter of Credence.
Delivery § 411. A mission may terminate, further, through
ports.58 the delivery of his passports to an envoy by the re-
ceiving State. The reason for such dismissal of an
envoy may be either gross misconduct on his part or
a quarrel between the sending and the receiving State
which leads to a rupture of diplomatic intercourse.
Whenever such rupture takes place, diplomatic relations
between the two States come to an end and all diplo-
matic privileges cease with the envoy's departing and
crossing the frontier. If the archives of the legations
are not removed, they must be put under seal by the
departing envoy and confided to the protection 2 of
some other foreign legation.
Request § 412. Without being recalled, an envoy may on his
own account ask for his passports and depart in conse-
quence ofill-treatment by the receiving State. This may
or may not lead to a rupture of diplomatic intercourse.
1 Notable cases of request of 2 As regards the case of Montag-
recall of envoys are reported by nini, see above, §§ 106 and 386.
Taylor, § 322 ; Hall, § 98** ; Moore,
IV. § 639.
§ 413. When war breaks out between the sending outbreak

and the receiving State before their envoys accredited ofWar<
to each other are recalled, their mission nevertheless
conies to an end. They receive their passports, but
nevertheless they must be granted their privileges 1 on
their way home.
§ 414. If the head of the sending or receiving State constitu-
is a Sovereign, his death or abdication terminates the changes.
missions sent and received by him, and all envoys
remaining at their posts must receive new Letters of
Credence. But if they receive new Letters of Credence,
no change in seniority is considered to have taken
place from the order in force before the change. And
during the time between the termination of the missions
and the arrival of new Letters of Credence they enjoy
nevertheless all the privileges of diplomatic envoys.
As regards the influence of constitutional changes
in the headship of republics on the missions sent or
received, no certain rule exists.2 Everything depends,
therefore, upon the merits of the special case.
§ 415. A revolutionary movement in the sending Eevoiu-
or receiving State which creates a new government, chang
changing, for example, a republic into a monarchy or
a monarchy into a republic, or deposing a Sovereign
and enthroning another, terminates the missions. All
envoys remaining at their posts must receive new
Letters of Credence, but no change in seniority takes
place if they receive them. It happens that in cases of
revolutionary changes of government foreign States for
some time neither send new Letters of Credence to their
envoys nor recall them, watching the course of events
in the meantime and waiting for more proof of a real
settlement. In such cases the envoys are, according
to an international usage, granted all privileges of
1 See below, vol. II. § 98. for instance, Ullmann, § 53, in
2 Writers on International Law contradistinction to Kivier, I. p. 517.
differ concerning this point. See,
diplomatic envoys, although in strict law they have

ceased to be such. In cases of recall subsequent to
revolutionary changes, the protection of subjects of the
recalling States remains in the hands of their consuls,
since the consular office * does not come to an end through
constitutional or revolutionary changes in the headship
of a State.
§ 416. If the sending or receiving State of a mission
sending or is extinguished by voluntary merger into another State
setate!ing or through annexation in consequence of conquest, the
mission terminates ipso facto. In case of annexation
of the receiving State, there can be no doubt that,
although the annexing State will not consider the envoys
received by the annexed State as accredited to itself,
it must grant those envoys the right to leave the terri-
tory of the annexed State unmolested and to take their
archives away with them. In case of annexation of
the sending State, the question arises what becomes
of the archives and legational property of the missions
of the annexed State accredited to foreign States. This
question is one on the so-called succession 2 of States.
The annexing State acquires, ipso facto, by the an-
nexation the property in those archives and other lega-
tional goods, such as the hotels, furniture, and the like.
But as long as the annexation is not notified and recog-
nised, the receiving States have no duty to interfere.
Death of § 417. A mission ends, lastly, by the death of the
ivoy* envoy. As soon as an envoy is dead, his effects, and
especially his papers, must be sealed. This is done by
a member of the dead envoy's legation, or, if there be
no such members, by a member of another legation
accredited to the same State. The local Government
must not interfere, unless at the special request by
the home State of the deceased envoy.
Although the mission and therefore the privileges of
1 See below, § 438. 2 See above, § 82.
the envoy come to an end by his death, the members

of his family who resided under his roof and the members
of his suite enjoy their privileges until they leave the
country. But a certain time may be fixed for them
to depart, and on its expiration they lose their privilege
of exterritoriality. It must be specially mentioned
that the Courts of the receiving State have no juris-
diction whatever over the goods and effects of the
deceased envoy, and that no death duties can be de-
manded.
VOL. I.
CHAPTER III
CONSULS
THE INSTITUTION OF CONSULS
Hall, § 105— Phillimore, II. §§ 243-246— Halleck, I. p. 369— Taylor, §§ 325-

326 — Twiss, I. § 223— Ullmann, §§ 54-55— Bulmerincq in Holtzendorff,
II. pp. 687-695— Heffter, §§ 241-242— Rivier, I. § 41— Nys, II. pp. 394-
399— Calvo, III. §§ 1368-1372— Bonfils, Nos. 731-743— Pradier-Fodere,
IV. §§ 2034-2043— Martens, II. §§ 18-19— Fiore, II. Nos. 1176-1178—
Warden, "A Treatise on the Origin, Nature, &c., of the Consular
Establishment " (1814)— Miltitz, Manuel des Consuls, 5 vols (1837-1839)—
Cussy, "Reglements consulaires des principaux Etats maritimes" (1851)
— H. B. Oppenheim, "Handbuch der Consulate aller Lander" (1854) —
Clercq et Vallat, " Guide pratique des consulats " (5th ed. 1898)— Salles,
" L'institution des consulats, son origine, &c." (1898) — Chester Lloyd
Jones, "The Consular Service of the United States. Its History and
Activities" (1906)— Stowell, " Le Consul" (1909), and "Consular Cases
and Opinions, &c." (1910) — Pillaut, " Manuel de droit Consulaire " (1910)
—Jordan in R.I. 2nd Ser. VIII. (1906), pp. 479-507 and 717-750.
Develop-
ment of § 418. The roots of the consular institution go back
the"insti- to the second half of the Middle Ages. In the com-
Consuis.f niercial towns of Italy, Spain, and France the mer-
chants used to appoint by election one or more of their
fellow-merchants as arbitrators in commercial disputes,
who were called Juges Consuls or Consuls Marchands.
When, between and after the Crusades, Italian, Spanish,
and French merchants settled down in the Eastern
countries, founding factories, they brought the institu-
tion of consuls with them, the merchants belonging to
the same nation electing their own consul. The com-
petence of these consuls became, however, more and
more enlarged through treaties, so-called " Capitula-
tions," between the home States of the merchants and
THE INSTITUTION OF CONSULS 483
the Mohammedan monarchs on whose territories these

merchants had settled down.1 The competence of
consuls comprised at last the whole civil and criminal
jurisdiction over, and protection of, the privileges, the
life, and the property of their countrymen. From the
East the institution of consuls was transferred to the
West. Thus, in the fifteenth century Italian consuls
existed in the Netherlands and in London, English
consuls in the Netherlands, Sweden, Norway, Denmark,
Italy (Pisa). These consuls in the West exercised, just
as those in the East, exclusive civil and criminal juris-
diction over the merchants of their nationality. But
the position of the consuls in the West decayed in the
beginning of the seventeenth century through the influ-
ence of the rising permanent legations on the one hand,
and, on the other, from the fact that everywhere foreign
merchants were brought under the civil and criminal
jurisdiction of the State in which they resided. This
change in their competence altered the position of
consuls in the Christian States of the West altogether.
Their functions now shrank into a general supervision
of the commerce and navigation of their home States,
and into a kind of protection of the commercial interests
of their countrymen. Consequently, they did not re-
ceive much notice in the seventeenth and eighteenth
centuries, and it was not until the nineteenth century
that the general development of international com-
merce, navigation, and shipping drew the attention of
the Governments again to the value and importance of
the institution of consuls. The institution was now
systematically developed. The position of the consuls,
their functions, and their privileges, were the subjects
of stipulations either in commercial treaties or in special
consular treaties,2 and the several States enacted statutes
1 See Twiss, I. §§ 253-263. of 2such
Phillimore,
treaties. II. § 255, gives a list
484 CONSULS
regarding the duties of their consuls abroad, such as

the Consular Act passed by England in 1826. *
General 8 419. Nowadays consuls are agents of States resid-
Character -IJP r -i-j-u • i
of consuls, mg abroad tor purposes of various kinds, but mainly
in the interests of commerce and navigation of the
appointing State. As they are not diplomatic repre-
sentatives, they do not enjoy the privileges of diplo-
matists. Nor have they, ordinarily, anything to do with
intercourse between their home State and the State
in which they reside. But -these rules have exceptions.
Consuls of Christian Powers in non-Christian States,
Japan now excepted, have retained their former com-
petence and exercise full civil and criminal jurisdiction
over their countrymen. And sometimes consuls are
charged with the tasks which are regularly fulfilled by
diplomatic representatives. Thus, in States under
suzerainty the Powers are frequently represented by
consuls, who transact all the business otherwise trans-
acted by diplomatic representatives, and who have,
therefore, often the title of " Diplomatic Agents."
Thus, too, on occasions small States, instead of ac-
crediting diplomatic envoys to another State, send only
a consul thither, who combines the consular functions
with those of a diplomatic envoy. It must, however, be
emphasised that consuls thereby neither become diplo-
matic envoys, although they may have the title of
" Diplomatic Agents," nor enjoy the diplomatic envoys'
privileges, if such privileges are not specially provided
for by treaties between the home State and the State
in which they reside. Different, however, is the case in
which a consul is at the same time accredited as Charge
d' Affaires, and in which, therefore, he combines two
different offices ; for as Charge d'Affaires he is a diplo-
matic envoy and enjoys all the privileges of such an
envoy, provided he has received a Letter of Credence.
1 6 Geo. IV. c. 87.
CONSULAR ORGANISATION 485
II
CONSULAR ORGANISATION
Hall, " Foreign Powers and Jurisdiction," § 13— Phillimore, II. §§ 253-254—
Halleck, I. p. 371— Taylor, § 528— Moore, V. § 696— Ullmann, § 57—
Bulmerincq in Holtzendorff, III. pp. 695-701— Kivier, I. § 41— Calvo,
III. §§ 1373-1376— Bonfils, Nos. 743-748— Pradier-Fode're', IV. §§ 2050-
2055 — Merignhac, II. pp. 320-333— Martens, II. § 20 — Stowell, "Le
Consul," pp. 186-206— "General Instructions for His Majesty's Consular
Officers " (1907).
§ 420. Consuls are of two kinds. They are either Different

specially sent and paid for the administration of their
consular office (Consules missi), or they are appointed
from individuals, in most cases merchants, residing in
the district for which they are to administer the con-
sular office (Consules electi).1 Consuls of the first kind,
who are so-called professional consuls and are always
subjects of the sending State, have to devote their
whole time to the consular office. Consuls of the second
kind, who may or may not be subjects of the sending
State, administer the consular office besides following
their ordinary callings. Some States, such as France,
appoint professional consuls only ; most States, how-
ever, appoint Consuls of both kinds according to the
importance of the consular districts. But there is a
general tendency with most States to appoint profes-
sional consuls for important districts.
No difference exists between the two kinds of consuls
as to their general position according to International
Law. But, naturally, a professional consul enjoys
actually a greater authority and a more important
social position, and consular treaties often stipulate
special privileges for professional consuls.
§ 421. As the functions of consuls are of a more or consular
less local character, most States appoint several consuls r
on the territory of other larger States, limiting the
1 To this distinction corresponds Officers " and " Trading Consular
in the British Consular Service Officers."
the distinction between "Consular
486 CONSULS
duties of the several consuls within certain districts
of such territories or even within a certain town or
port only. Such consular districts as a rule coincide
with provinces of the State in which the consuls ad-
minister their offices. The different consuls appointed
by a State for different districts of the same State are
independent of each other and conduct their corre-
spondence directly with the Foreign Office of their home
State, the agents-consular excepted, who correspond
with their nominators only. The extent of the districts
is agreed upon between the home State of the consul
and the admitting State. Only the consul appointed
for a particular district is entitled to exercise consular
functions within its boundaries, and to him only the local
authorities have to grant the consular privileges, if any.
Different § 422. Four classes of consuls are generally distin-
c<?nsuis.of guisned according to rank : consuls-general, consuls,
vice-consuls, and agents-consuls. Consuls-general are
appointed either as the head of several consular dis-
tricts, and have then several consuls subordinate to
themselves, or as the head of one very large consular
district. Consuls are usually appointed for smaller
districts, and for towns or even ports only. Vice-
consuls are such assistants of consuls-general and
consuls as themselves possess the consular character
and take, therefore, the consul's place in regard to the
whole consular business ; they are, according to the
Municipal Law of some States, appointed by the consul,
subject to the approbation of his home State. Agents-
consular are agents with consular character, appointed,
subject to the approbation of the home Government,
by a consul-general or consul for the exercise of
certain parts of the consular functions in certain towns
or other places of the consular district. Agents-consular
are not independent of the appointing consul, and do
not correspond directly with the home State, as the
APPOINTMENT OF CONSULS 487
appointing consul is responsible to his Government for

the agents-consular. The so-called Proconsul is not a
consul, but a locum tenens of a consul only during the
latter's temporary absence or illness ; he possesses,
therefore, consular character for such time only as he
actually is the locum tenens.
The British Consular Service consists of the following
six ranks : (1) Agents and consuls-general, commissioners
and consuls-general; (2) consuls-general; (3) consuls;
(4) vice-consuls ; (5) consular agents ; (6) proconsuls.
In the British Consular Service pro-consuls only exercise,
as a rule, the notarial functions of a consular officer.
§ 423. Although consuls conduct their correspon- consuls
dence directly with their home Government, they are
nevertheless, subordinate to the diplomatic envoy of
their home Government accredited to the State in which Envoys.
they administer the consular offices. According to the
Municipal Law of almost every State except the United
States of America, the diplomatic envoy has full
authority and control over the consuls. He can give
instructions and orders, which they have to execute.
In doubtful cases they have to ask his advice and in-
structions. On the other hand, the diplomatic envoy
has to protect the consuls in case they are injured by
the local Government.
Ill
APPOINTMENT OF CONSULS
Hall, § 105— Phillimore, II. § 250— Halleck, I. p. 371— Moore, V. §§ 697-700

— Ullmann, § 58— Bulmerincq in Holtzendorff, III. pp. 702-706— Rivier,
I. § 4l_Nys, II. p. 400— Calvo, III. §§ 1378-1384— Bonfils, Nos. 749-752—
Pradier-Fode"re, IV. §§ 2056-2067— Fiore, II. Nos. 1181-1182— Martens,
II. § 21— Stowell, "Le Consul," pp. 207-216.
§ 424. International Law has no rules in regard to
the qualifications of an individual whom a State can
appoint consul. Many States, however, possess such dafces
488 CONSULS
rules in their Municipal Law as far as professional
consuls are concerned. The question, whether female
consuls could be appointed, cannot be answered in the
negative, but, on the other hand, no State is obliged
to grant female consuls the exequatur, and many States
would at present certainly refuse it.
NO state § 425. According to International Law a State is
adm1tedl° not at all obliged to admit consuls. But the com-
Consuis. mercial interests of all the States are so powerful that
practically every State must admit consuls of foreign
Powers, as a State which refused such admittance would
in its turn not be allowed to have its own consuls abroad.
The commercial and consular treaties between two
States stipulate as a rule that the contracting States
shall have the right to appoint consuls in all those parts
of each other's country in which consuls of third States
are already or shall in future be admitted. Consequently
a State cannot refuse admittance to a consul of one
State for a certain district if it admits a consul of an-
other State. But as long as a State has not admitted
any other State's consul for a district, it can refuse
admittance to a consul of the State anxious to organise
consular service in that district. Thus, for instance,
Kussia refused for a long time for political reasons to
admit consuls in Warsaw.
What § 426. There is no doubt that it is within the faculty
stages can °f e very full-Sovereign State to appoint consuls. As
Consuls regards not full-Sovereign States, everything depends
upon the special case. As foreign States can appoint
consuls in States under suzerainty, it cannot be doubted
that, provided the contrary is not specially stipulated
between the vassal and the suzerain State, and provided
the vassal State is not one which has no position within
the Family of Nations,1 a vassal State is in its turn
competent to appoint consuls in foreign States. In
1 See above, § 91.
APPOINTMENT OF CONSULS 489
regard to member-States of a Federal State it is the

Constitution of the Federal State which settles the
question. Thus, according to the Constitution of
Germany, the Federal State is exclusively competent
to appoint consuls, in contradistinction to diplomatic
envoys who may be sent and received by every member-
State of the German Empire.
§ 427. Consuls are appointed through a patent or Mode of
commission, the so-called Lettre de provision, of the
State whose consular office they are intended to ad-
minister. Vice-consuls are sometimes, and agents-con-
sular are always, appointed by the consul, subject to
the approval of the home State. Admittance of consuls
takes place through the so-called exequatur, granted by
the head of the admitting State.1 The diplomatic
envoy of the appointing State hands the patent of the
appointed consul on to the Secretary for Foreign Affairs
for communication to the head of the State, and the
exequatur is given either in a special document or by
means of the word exequatur written across the patent.
But the exequatur can be refused for personal reasons.
Thus, in 1869 England refused the exequatur to an Irish-
man named Haggerty, who was naturalised in the
United States and appointed American consul for
Glasgow. And the exequatur can be withdrawn for
personal reasons at any moment. Thus, in 1834 France
withdrew it from the Prussian consul at Bayonne for
having helped in getting into Spain supplies of arms
for the Carlists.
§ 428. As the appointment of consuls takes place in
the interests of commerce, industry, and navigation, and consuls
has merely local importance without political conse- ReCcog-es
quences, it is maintained2 that a State does not indirectly nition-
1 That, in case a consul is has been pointed out above, § 92,
appointed for a State which is under p. 144, note 4.
the protectorate of another, it is 2 Hall, §§ 26* and 105, and Moore,
within the competence of the latter I. § 72.
to grant or refuse the exequatur,
490 CONSULS
recognise a newly created State ipso facto by appointing a

consul to a district in such State. This opinion, however,
does not agree with the facts of international life. Since
no consul can exercise his functions before he has handed
over his patent to the local State and received the latter's
exequatur, it is evident that thereby the appointing
State enters into such formal intercourse with the ad-
mitting State as indirectly l involves recognition. But
it is only if consuls are formally appointed and formally
receive the exequatur on the part of the receiving State,
that indirect recognition is involved. If, on the other
hand, no formal 2 appointment is made, and no formal
exequatur is asked for and received, foreign individuals
may actually with the consent of the local State exercise
the functions of consuls without recognition following
therefrom. Such individuals are not really consuls,
although the local State allows them for political reasons
to exercise consular functions.
IV
FUNCTIONS OF CONSULS
Hall, § 105— Phillimore, II. §§ 257-260— Taylor, § 327— Halleck, I. pp. 380-
385— Moore, V. §§ 717-731— Ullmann, § 61 — Bulmerincq in Holtzendorff,
III. pp. 738-749— Rivier, I. § 42— Calvo, III. §§ 1421-1429— Bonfils, Nos.
762-771— Pradier-Fodere, IV. §§ 2069-2113— Fiore, II. Nos. 1184-1185—
Martens, II. § 23— Stowell, " Le Consul," pp. 15-136.
on con- § 429. Although consuls are appointed chiefly in

Functions the interest of commerce, industry, and navigation,
in general. ^y are nevertheless charged with various functions
for other purposes. Custom, commercial and consular
treaties, Municipal Laws, and Municipal Consular In-
1 See above, § 72. presumed — without the individuals
2 The case mentioned by Hall, concerned asking formally for the
§ 26*, of Great Britain appointing, in exequatur of the various South
1823, consuls to the South American American States, would seem to be a
Republics, without gazetting the case of informal appointment,
various consuls and — as must be
FUNCTIONS OF CONSULS 491
structions contain detailed rules in regard to these

functions. They may be grouped under the heads of
fosterage of commerce and industry, supervision of
navigation, protection, notarial functions.
§ 430. As consuls are appointed in the interest of Fosterage
commerce and industry, they must be allowed by the merceand
receiving State to watch over the execution of the Industry-
commercial treaties of their home State, to send reports
to the latter in regard to everything which can influence
the development of its commerce and industry, and to
give such information to merchants and manufacturers
of the appointing State as is necessary for the pro-
tection oftheir commercial interests. Municipal Laws
of the several States and their Consular Instructions
comprise detailed rules on these consular functions,
which are of the greatest importance. Consular re-
ports, on the one hand, and consular information to
members of the commercial world, on the other, have
in the past and the present rendered valuable assistance
to the development of commerce and industry of their
home States.
§ 431. Another task of consuls consists in super- super-
vision of the navigation of the appointing State. A JJaviga*-
consul at a port must be allowed to keep his eye on all tion-
merchantmen sailing under the flag of his home State
which enter the port, to control and legalise their ship
papers, to exercise the power of inspecting them on their
arrival and departure, to settle disputes between the
master and the crew or the passengers. He assists
sailors in distress, undertakes the sending home of ship-
wrecked crews and passengers, attests averages. It is
neither necessary nor possible to enumerate all the
duties and powers of consuls in regard to supervision of
navigation. Consular and commercial treaties, on the
one hand, and, on the other, Municipal Laws and Con-
sular Instructions, comprise detailed rules regarding
492 CONSULS
these consular functions. It should, however, be added
that consuls must assist in every possible way any
public vessel of their home State which enters their
port, if the commander so requests. But consuls have
no power of supervision over such public vessels.
Protec- § 432. The protection which consuls must be
allowed by the receiving State to provide for subjects
of the appointing State is a very important task. For
that purpose consuls keep a register, in which these
subjects can have their names and addresses recorded.
Consuls make out passports, they have to render a certain
assistance and help to paupers and the sick, and to liti-
gants before the Courts. If a foreign subject is wronged
by the local authorities, his consul has to give him advice
and help, and has eventually to interfere on his behalf.
If a foreigner dies, his consul may be approached for
securing his property and for rendering all kind of
assistance and help to the family of the deceased.
As a rule, a consul exercises protective functions over
subjects of the appointing State only ; but the latter
may charge him with the protection of subjects of other
States which have not nominated a consul for his
district.
Notarial § 433. Very important are the notarial and the
Sons. like functions with which consuls are charged. They
attest and legalise signatures, examine witnesses and
administer oaths for the purpose of procuring evidence
for the Courts and other authorities of the appointing
State. They conclude or register marriages of the latter's
subjects, take charge of their wills, legalise their adop-
tions, register their births and deaths. They provide
authorised translations for local as well as for home
authorities, and furnish attestations of many kinds. All
consular functions of this kind are specialised by Muni-
cipal Laws and Consular Instructions. But it should
be specially observed that whereas fosterage of com-
POSITION AND PRIVILEGES OF CONSULS 493
merce, supervision of navigation, and protection are

functions the exercise of which must, according to a
customary rule of International Law, be granted to
consuls by receiving States, many of their notarial
functions need not be permitted by such receiving
States in the absence of treaty stipulations.
POSITION AND PRIVILEGES OF CONSULS
Hall, § 105— Phillimore, II. §§ 261-271— Halleck, I. pp. 371-379— Taylor, §§

326, 332-333— Moore, V. §§ 702-716— Ullmann, §§ 60 and 62— Bulmerincq
in Holtzendorff, III. pp. 710-720— Bivier, I. § 42— Calvo, III. §§ 1385-
1420— Bonfils, Nos. 753-761— Pradier-Fode're', IV. §§ 2114-2121— Fiore,
II. No. 1183— Martens, II. § 22— Bodin, " Les immunites consulates "
(1899)— Stowell, "Le Consul," pp. 137-185.
§ 434. Like diplomatic envoys, consuls are simply Position.

objects of International Law. Such rights as they have
are granted to them by Municipal Laws in compliance
with rights of the appointing States according to
International Law.1 As regards their position, it should
nowadays be an established and uncontested fact that
consuls do not enjoy the position of diplomatic envoys,
since no Christian State actually grants to foreign
consuls the privileges of diplomatic agents. On the
other hand, it would be incorrect to maintain that their
position is in no way different from that of any other
individual living within the consular district. Since
they are appointed by foreign States and have received
the exequatur, they are publicly recognised by the ad-
mitting State as agents of the appointing State. Of
course, consuls are not diplomatic representatives, for
they do not represent the appointing States in the
totality of their international relations, but for a limited
number of tasks and for local purposes only. Yet they
494 CONSULS
bear a recognised public character, in contradistinction

to mere private individuals, and, consequently, their
position is different from that of mere private indi-
viduals. This is certainly the case with regard to
professional consuls, who are officials of their home
State and are specially sent to the foreign State for the
purpose of administering the consular office. But in
regard to non-professional consuls it must likewise be
maintained that the admitting State by granting the
exequatur recognises their official position towards itself,
which demands at least a special protection 1 of their
| persons and residences. The official position of con-
suls, however, does not involve direct intercourse with
the Government of the admitting State. Consuls are
appointed for local purposes only, and they have, there-
fore, direct intercourse with the local authorities only.
If they want to approach the Government itself, they
can do so only through the diplomatic envoy, to whom
they are subordinate.
consular! § ^35. From the undoubted official position of con-
Pnviieges. gu|s no universally recognised privileges of importance
emanate as yet. Apart from the special protection due
to consuls according to International Law, there is
neither a custom nor a universal agreement between the
Powers to grant them important privileges. Such
privileges as consuls actually enjoy are granted to them
either by courtesy or in compliance with special stipu-
lations of a Commercial or Consular Treaty between
the sending and the admitting State. I doubt not that
in time the Powers will agree upon a universal treaty
in regard to the position and privileges of consuls.2
1 According to British and Ameri- character ; see the case of the Indian
can practice a consul of a neutral Chief, 3 C. Rob. 12.
Power accredited to the enemy State 2 The Institute of International
who embarks upon mercantile ven- Law at its meeting at Venice in
tures, is not by his official position 1896 adopted a Rlglement sur Ics im-
protected against seizure of his goods munites consulaires comprising twenty-
carried by enemy vessels, for by one articles. See Annuaire, XV.
trading in the enemy country he p. 304.
acquires to a certain extent enemy
POSITION AND PRIVILEGES OF CONSULS 495
Meanwhile, it is of interest to take notice of some of

the more important stipulations which are to be found
in the innumerable treaties between the several States
in regard to consular privileges :
(1) A distinction is very often made between pro-
fessional and non-professional consuls in so far as the
former are accorded more privileges than the latter.
(2) Although consuls are not exempt from the local
civil and criminal jurisdiction, the latter is in regard to
professional consuls often limited to crimes of a more
serious character.
(3) In many treaties it is stipulated that consular
archives shall be inviolable from search or seizure.
Consuls are therefore obliged to keep their official
documents and correspondence separate from their
private papers.
(4) Inviolability of the consular buildings is also
sometimes stipulated, so that no officer of the local
police, Courts, and so on, can enter these buildings
without special permission of the consul. But it is
then the duty of consuls to surrender criminals who
have taken refuge in these buildings.
(5) Professional consuls are often exempt from all
kinds of rates and taxes, from the liability to have
soldiers quartered in their houses, and from the duty
to appear in person as witnesses before the Courts. In
the latter case consuls have either to send in their
evidence in writing, or their evidence may be taken
by a commission on the premises of the consulate.
(6) Consuls of all kinds have the right to put up
the arms of the appointing State over the door of the
consular building and to hoist the national flag.
496 CONSULS
VI
TERMINATION OF CONSULAR OFFICE
Hall, § 105— Moore, V. § 701— Ullmann, § 59— Bulmerincq in Holtzendorff,

III. p. 708— Rivier, I. § 41— Calvo, III. §§ 1382, 1383, 1450— Bonfils, No.
775— Fiore, II. No. 1187— Martens, II. § 21— Stowell "Le Consul," pp.
217-222.
Un- § 436. Death of the consul, withdrawal of the exe-

causes of quatur, recall or dismissal, and, lastly, war between the
Monnma appointing and the admitting State, are universally
recognised causes of termination of the consular office.
When a consul dies or war breaks out, the consular
archives must not be touched by the local authorities.
They remain either under the care of an employe of the
consulate, or a consul of another State takes charge of
them until the successor of the deceased arrives or
peace is concluded.
Doubtful § 437. It is not certain in practice whether the office
Termlna- of a consul terminates when his district, through cession,
conquest followed by annexation, or revolt, becomes
the property of another State. The question ought to
be answered in the affirmative, because the exequatur
given to such consul originates from a Government
which then no longer possesses the territory. A prac-
tical instance of this question occurred in 1836, when
Belgium, which was then not yet recognised by Russia,
declared that she would henceforth no longer treat the
Kussian consul Aegi at Antwerp as consul, because he
was appointed before the revolt and had his exequatur
granted by the Government of the Netherlands. Al-
though Belgium gave way in the end to the urgent
remonstrances of Russia, her original attitude was
legally correct.
change in § 438. It is universally recognised that, in contra-
shipof distinction to a diplomatic mission, the consular office
cause of0* does not come to an end through a change in the bead-
o ™"1*" sk*P °^ *ke appointing or the admitting State. Neither
CONSULS IN NON-CHRISTIAN STATES 497
a new patent nor a new exequatur is therefore necessary

whether another king comes to the throne or a mon-
archy turns into a republic, or in any like case.
VII
CONSULS IN NON-CHRISTIAN STATES
Tarring, "British Consular Jurisdiction in the East" (1887) — Hall,

" Foreign Powers and Jurisdiction," §§ 64-85— Halleck, I. pp. 385-398—
Phillimore, II. §§ 272-277— Taylor, §§ 331-333— Twiss, I. § 136— Wheaton,
§ 110— Ullmann, §§ 63-65— Bulmerincq in Holtzendorff, III. pp. 720-738
— Rivier, I. § 43— Nys, II. pp. 400-414— Gal vo, III. §§ 1431-1449—
Bonfils, Nos. 776-791— Pradier-Fodere", IV. 2122-2138— Merignhac, II.
pp. 338-351— Martens, II. §§ 24-26— Martens, " Konsularwesen und
Konsular jurisdiction im Orient " (German translation from the Russian
original by Skerst, 1874) — Bruillat, "Etude historique et critique sur
les juridictions consulaires " (1898) — Lippmann, " Die Konsularjuris-
diction im Orient" (1898) — Verge, "Des consuls dans les pays
d' Occident" (1903) — Hinckley, "American Consular Jurisdiction in the
Orient" (1906)— Piggott, "Exterritoriality. The Law relating to Con-
sular Jurisdiction, &c. in Oriental Countries" (new edition, 1907) —
Mandelstam, "La justice ottomane dans ses rapports avec les
puissances e"trangeres" (1911), and in R.G-. XIV. (1907), pp. 5 and 534,
and XV. (1908), pp. 329-384.
§ 439. Fundamentally different from the regular Position of

position is that of consuls in non-Christian States, with
the single exception of Japan. In, the Christian coun-
tries of the West alone consuls have, as has been stated
before (§ 418), lost jurisdiction over the subjects of the
appointing States. In the Mohammedan States consuls
not only retained their original jurisdiction, but the
latter became by-and-by so extended through the so-
called Capitulations that the competence of consuls
soon comprised the whole civil and criminal jurisdiction,
the power of protection of the privileges, the life, and
property of their countrymen, and even the power to
expel one of their countrymen for bad conduct. And
custom and treaties secured to consuls inviolability,
exterritoriality, ceremonial honours, and miscellaneous
other rights, so that there is no doubt that their posi-
VOL. i. 21
498 CONSULS
tion is materially the same as that of diplomatic envoys.

From the Mohammedan countries this position of con-
suls has been extended and transferred to China, Japan,
Persia, and other non-Christian countries, but in Japan
the position of consuls shrank in 1899 into that of
consuls in Christian States.
Consular § 440. International custom and treaties lay down
tioifin10 the rule only that all the subjects of Christian States
Christian residing in non-Christian States shall remain under the
states. jurisdiction of the home State as exercised by their
consuls.1 It is a matter for the Municipal Laws of
the several Christian States to organise this consular
jurisdiction. All States have therefore enacted statutes
dealing with this matter. As regards Great Britain,
several Orders in Council and the Foreign Jurisdiction
Act (53 & 54 Viet., c. 37) of 1890 are now the legal basis
of the consular jurisdiction.2 The working of this
consular jurisdiction is, however, not satisfactory in
regard to the so-called mixed cases. As the national
consul has exclusive jurisdiction over the subjects of
his home State, he exercises this jurisdiction also in
cases in which the plaintiff is a native or a subject of
another Christian State, and which are therefore called
mixed cases.
inter- § 441. To overcome in some points the disadvan-
courtfin tages of the consular jurisdiction, an interesting experi-
Egypt. ment is being made in Egypt. On the initiative of the
Khedive, most of the Powers in 1875 agreed upon an
organisation of International Courts in Egypt for mixed
cases.3 These Courts began their functions in 1876.
They are in the main competent for mixed civil cases,
mixed criminal cases of importance remaining under
1 See above, § 318. Affecting Foreigners in Egypt as the
2 See Piggott, op. cit. Result of the Capitulations " (1907) ;
3 See Holland, " The European Goudy in The Law Quarterly Review,
Concert in the Eastern Question," XXIII. (1907), pp. 409-413.
pp. 101-102; Scott, "The Law
CONSULS IN NON-CHRISTIAN STATES 499
the jurisdiction of the national consuls. There are three

International Courts of first instance — namely, at
Alexandria, Cairo, and Ismailia (formerly at Zagazig),
and one International Court of Appeal at Alexandria.
The tribunals of first instance are each composed of
three natives and four foreigners, the Court of Appeal
is composed of four natives and seven foreigners.
§ 442. There is no doubt that the present position Excep-
of consuls in non-Christian States is in every point an character
exceptional one, which does not agree with the prin- ^nonSuls
ciples of International Law otherwise universally recog- Christian
nised. But the position is and must remain a necessity
as long as the civilisation of non-Christian States has
not developed their ideas of justice in accordance with
Christian ideas, so as to preserve the life, property,
and honour of foreigners before native Courts. The
case of Japan is an example of the readiness of the
Powers to consent to the withdrawal of consular
jurisdiction in non-Christian States as soon as they
have reached a certain level of civilisation.
CHAPTER IV
MISCELLANEOUS AGENCIES
I
AHMED FORCES ON FOREIGN TERRITORY
Hall, §§ 54, 56, 102— Lawrence, § 107— Halleck, I. pp. 477-479— PhiUimore,
I. § 341— Taylor, § 131— Twiss, I. § 165— Wheaton, § 99— Moore, II.
§ 251— Westlake, I. p. 255— Stoerk in Holtzendorff, II. pp. 664-666
— Kivier, I. pp. 333-335— Calvo, III. § 1560— Fiore, I. Nos. 528-529.
Armed § 443. Armed forces are organs of the State which

state68 maintains them, because such forces are created for the
Organs. pUrpOSe of maintaining the independence, authority,
and safety of the State. And in this respect it matters
not whether armed forces are at home or abroad, for
they are organs of their home State even when on foreign
territory, provided only they are there in the service
of their State and not for their own purposes. For if
a body of armed soldiers enters foreign territory without
orders from, or without being otherwise in the service
of, its State, but on its own account, be it for pleasure
or for the purpose of committing acts of violence, it is
no longer an organ of its State.
Occasions § 444. Besides war, there are several occasions for
F°orrcVsmed armed forces to be on foreign territory in the service
abroad. of their home State. Thus, a State may have a right
to keep troops in a foreign fortress or to send troops
through foreign territory. Thus, further, a State which
has been victorious in war with another may, after the
conclusion of peace, occupy a part of the territory of
its former opponent as a guarantee for the execution
of the Treaty of Peace. After the Franco-German war,
600
ARMED FORCES ON FOREIGN TERRITORY 501
for example, the Germans in 1871 occupied a part of

the territory of France until the final instalments of the
indemnity for the war costs of five milliards of francs
were paid. It may also be a case of necessity for the
armed forces of a State to enter foreign territory and
commit acts of violence there, such as the British did
in the case of the Caroline.1
§ 445. Whenever armed forces are on foreign terri- Position
tory in the service of their home State, they are con- Forces^
sidered exterritorial and remain, therefore, under the abroad-
jurisdiction of the latter. A crime committed on foreign
territory by a member of the force cannot be punished
by the local civil or military authorities, but only
by the commanding officer of the forces or by other
authorities of its home State.2 This is, however, valid
only in case the crime is committed either within
the place where the force is stationed, or anywhere else
where the criminal was on duty. If, for example,
soldiers belonging to a foreign garrison of a fortress
leave the rayon of the latter, not on duty but for recrea-
tion and pleasure, and then and there commit a crime,
the local authorities are competent to punish them.
§ 446. An excellent example of the position of armed Case of
forces abroad is furnished by the case of McLeod,3
which occurred in 1841. Alexander McLeod, who was
a member of the British force sent by the Canadian
Government in 1837 into the territory of the United
States for the purpose of capturing the Caroline, a boat
equipped for crossing into Canadian territory and
taking help to the Canadian insurgents, came in 1841
on business to the State of New York, and was arrested
and indicted for the killing of one Amos Durfee, a citizen
1 See above, § 133, and below, authorities, such as Bar ("Lehrbuch
§ 446. des internationalen Privat- und
2 This is nowadays the opinion Strafrecht" (1892), p. 351),andKivier
of the vast majority of writers on (I. p. 333).
International Law. There are, 3 See Wharton, I. § 21, and Moore,
however, still a few dissenting II. § 179.
502 MISCELLANEOUS AGENCIES
of the United States, on the occasion of the capture of

the Caroline. The English Ambassador at Washington
demanded the release of McLeod, on the ground that
he was at the time of the alleged crime a member of a
British armed force sent into the territory of the United
States by the Canadian Government acting in a case
of necessity. McLeod was not released, but had to
take his trial ; he was, however, acquitted on proof of
an alibi. It is of importance to quote a passage in the
reply of Mr. Webster, the Secretary of Foreign Affairs
of the United States, to a note of the British Ambas-
sador concerning this affair. The passage runs thus :—
'' The Government of the United States entertains no
doubt that, after the avowal of the transaction as a
public transaction, authorised and undertaken by the
British authorities, individuals concerned in it ought
not ... to be holden personally responsible in the
ordinary tribunals for their participation in it."
TheCasa § 446a. Another interesting example is the Casa
Blanca incident. On September 25, 1908, six soldiers
—three of them Germans — belonging to the French
Foreign Legion which formed part of the French troops
at Morocco, deserted at Casa Blanca and asked for and
obtained the protection of the local German consul,
who intended to take them on board a German vessel
lying in the harbour of Casa Blanca. On their way to
the ship, however, they were forcibly taken by the
French out of the custody of the secretary of the German
Consulate and a native soldier in the service of the
consulate who were conducting them. Considering all
Germans in Morocco without exception exterritorial
and under the exclusive jurisdiction of her consul,
Germany complained of this act of force and demanded
that those of the deserters concerned who were German
subjects should be given up to her by France, acknow-
ledging the fact that the consul had no right to extend
ARMED FORCES ON FOREIGN TERRITORY 503
his protection to other than German subjects. France

refused to concede this demand, maintaining that the
individuals concerned had even after their desertion
remained under the exclusive jurisdiction of their corps,
which formed part of a French force occupying foreign
territory. As the parties could not settle the conflict
diplomatically, they agreed, on November 24, 1908, to
bring it before the Hague Court of Arbitration, which
gave its award * on May 22, 1909, on the whole in favour
of France. The Court considered : that there was a
conflict of jurisdiction with regard to the German de-
serters because they were as German subjects under the
exclusive jurisdiction of the German Consulate, but as
deserters from the French Foreign Legion under the
exclusive jurisdiction of the French Army of Occupa-
tion ; that under the circumstances of the case the
jurisdiction of the Army of Occupation should have
the preference ; that nevertheless the German consul
was not to be blamed for his action on account of the
fact that in a country granting exterritorial jurisdiction
to foreigners the question of the respective competency
of the consular jurisdiction and of the jurisdiction of
an Army of Occupation was very complicated and had
never been settled in an express, distinct, and univer-
sally recognised manner ; that, since the German
deserters were found at the port under the actual pro-
tection of the German Consulate and this protection
was not manifestly illegal, the actual situation should,
as far as possible, have been respected by the French
military authority ; that therefore the French military
authorities ought to have confined themselves to pre-
venting the embarkation and escape of the deserters,
and, before proceeding to their arrest and imprisonment,
to have offered to leave them in sequestration of the
1 See Martens, N.R.G. 3rd Ser. tion of the Award is printed in A.J.
II. (1910), p. 19. An English transla- III. (1909), p. 755.
German Consulate until the question of the competent

jurisdiction had been decided. The Court did not,
however, decree the restitution on the part of France
of the three German deserters to Germany.1
II
MEN-OF-WAR IN FOREIGN WATERS
Hall, §§ 54-55— Halleck, I. pp. 215-230— Lawrence, §§ 107-109— Phillimore,

II. §§ 344-350— Westlake, pp. 256-259— Taylor, § 261— Moore, II. §§
252-256— Twiss, I. § 165— Wheaton, § 100— Bluntschli, § 321— Stoerk in
Holtzendorff, II. pp. 434 and 446— Perels, §§ 11, 14, 15— Heilborn,
" System," pp. 248-279— Rivier, I. pp. 333-335— Bonfils, Nos. 614-623—
Me"rignhac, II. pp. 554-564— Calvo, III. §§ 1550-1559— Fiore, I. Nos.
547-550— Testa, p. 86^Jordan, R.I. 2nd Ser. X. (1908), p. 343.
Men-of- § 447. Men-of-war are State organs just as armed

f°rces are> a man-of-war being in fact a part of the
armed- forces of a State. And respecting their char-
acter as State organs, it matters nought whether men-of-
war are at home or in foreign territorial waters or on
the High Seas. But it must be emphasised that men-
of-war are State organs only as long as they are manned
and under the command of a responsible officer, and,
further, as long as they are in the service of a State.
A shipwrecked man-of-war abandoned by her crew is
no longer a State organ, nor does a man-of-war in revolt
against her State and sailing for her own purposes
retain her character as an organ of a State. On the
1 The ambiguity of the award has are exclusively competent to exercise
justly been severely criticised. If, jurisdiction. But it is a well-known
as the Court correctly asserts, the fact that Courts of Arbitration
jurisdiction of an Army of Occupa- frequently endeavour to give an
tion must prevail over the juris- award which satisfies both parties
diction of a consul over his nationals and the ambiguity of the award in
in a country granting exterritorial the Casa Blanca incident is mani-
jurisdiction, a decision of the con- festly due to this fact. The award
flict on mere legal grounds would is not of such a kind as one would
have to be entirely in favour of expect from a Court of Justice,
France, for it is difficult to see how although it may be an excellent
a wrongfully acquired and illegally specimen of an arbitral decision,
asserted protection can create any See A.J. III. (1909), pp. 698-701.
obligation on the part of those who
MEN-OF-WAR IN FOREIGN WATERS 505
other hand, public vessels in the service of the police

and the Custom House of a State ; further, private
vessels chartered by a State for the transport of troops
and war materials ; and, lastly, vessels carrying a head
of a State and his suite exclusively, are also considered
State organs, and are, consequently, in every point
treated as though they were men-of-war.
§ 448. The character of a man-of-war or of any Proof of
other vessel treated as a man-of-war is, in the first asMen-of-
instance, proved by their outward appearance, such wan
vessels flying the war flag and the pennant of their
State.1 If, nevertheless, the character of the vessel
seems doubtful, her commission, duly signed by the
authorities of the State which she appears to repre-
sent, supplies a complete proof of her character as a
man-of-war. And it is by no means necessary to prove
that the vessel is really the property of the State, the
commission being sufficient evidence of her character.
Vessels chartered by a State for the transport of troops
or for the purpose of carrying its head are indeed not
the property of such State, although they bear, by
virtue of their commission, the same character as men-
of-war.2
S 449. Whereas armed forces in time of peace have occasions
of-war
for Men-
1 Attention ought to be drawn The commander must be in the abroad,
here to Convention VII. (concerning service of the State and duly com-
the conversion of merchant-ships missioned by the proper authorities,
into war-ships) of the second Hague His name must figure on the list of
Peace Conference of 1907. Although the officers of the military fleet
this convention concerns the time of (art. 3). The crew must be subject
war only, it is indirectly of import- to the rules of military discipline
ance for the time of peace. Its (art. 4). Every merchant-ship
stipulations are the following :— No converted into a war-ship is bound
merchant-ship converted into a war- to observe, in its operations, the
ship can have the rights and duties laws and customs of war (art. 5).
appertaining to that status unless it A belligerent who converts a mer-
is placed under the direct authority, chant-ship into a war-ship must, as
immediate control, and responsibility soon as possible, announce such
of the Power whose flag it flies conversion in the list of the ships of
(art. 1). Merchant-ships converted its military fleet (art. 6).
into warships must bear the external 2 Privateers used to enjoy the
marks which distinguish the war- same character and exemptions as
ships of their nationality (art. 2). men-of-war.
no occasion to be abroad, cases of a special right from

a convention and cases of necessity excepted, men-of-
war of all maritime States possessing a navy are con-
stantly crossing the High Seas in all parts of the world
for all kinds of purposes. Occasions for men-of-war
to sail through foreign territorial waters and to enter
foreign ports necessarily arise therefrom. And a special
convention between the flag-State and the littoral State
is not necessary to enable a man-of-war to enter and
sail through foreign territorial waters and to enter a
foreign port. All territorial waters and ports of the
civilised States are, as a rule, quite as much open to
men-of-war as to merchantmen of all nations, provided
they are not excluded by special international stipula-
tions or special Municipal Laws of the littoral States.
On the other hand, it must be emphasised that, provided
special international stipulations or special treaties
between the flag-State and the littoral State do not
prescribe the contrary in regard to one port or another
and in regard to certain territorial waters, a State is
in strict law always competent to exclude men-of-war
from all or certain of its ports, and from those terri-
torial waters which do not serve as highways for inter-
national traffic.1 And a State is, further, always com-
petent to impose what conditions it thinks necessary
upon men-of-war which it allows to enter its ports, pro-
vided these conditions do not deny to men-of-war their
universally recognised privileges.
Position § 450. The position of men-of-war in foreign waters
waffn °f *s cnaracterised by the fact that they are called " float-
foreign ing " portions of the flag-State. For at the present
time a customary rule of International Law is univer-
sally recognised that the owner State of the waters into
which foreign men-of-war enter must treat them in
1 The matter is controversial. p. 192, in contradistinction to Hall,
See above, § 188, atid Westlake, I. § 42.
MEN-OF-WAR IN FOREIGN WATERS 507
every point as though they were floating portions of

their flag-State.1 Consequently, a man-of-war, with all
persons and goods on board, remains under the juris-
diction ofher flag-State even during her stay in foreign
waters. No official of the littoral State is allowed to
board the vessel without special permission of the
commander. Crimes committed on board by persons
in the service of the vessel are under the exclusive juris-
diction ofthe commander and the other home authori-
ties. Individuals who are subjects of the littoral State
and are only temporarily on board may, although they
need not, be taken to the home country of the vessel,
to be there punished if they commit a crime on board.
Even individuals who do not belong to the crew, and
who after having committed a crime on the territory
of the littoral State have taken refuge on board, cannot
be forcibly taken of! the vessel ; if the commander
refuses their surrender, it can be obtained only by
means of diplomacy from the home State.
On the other hand, men-of-war cannot do what they
like in foreign waters. They are expected voluntarily
to comply with the laws of the littoral States with
regard to order in the ports, the places for casting
anchor, sanitation and quarantine, customs, and the
like. A man-of-war which refuses to do so can be ex-
pelled, and, if on such or other occasions she commits
1 This rule became universally war, the High Court of Admiralty
recognised during the nineteenth in 1879 held that foreign public ships
century only. On the change of cannot be sued in English Courts for
doctrines formerly held in this salvage (L.R., 4 P.D. 39). And in
country and the United States of the case of the Parlement Beige
America, see Hall, § 54, and (L.R. 5 P.D. 197) the Court of
Lawrence, § 107. English and Appeal, affirmed by the House of
American Courts now recognise Lords in 1878, held that foreign
the exterritoriality of foreign public public vessels cannot be sued in
vessels. Thus, in the case of the English Courts for damages for
Exchange (1 Cranch, 116), the collision. Again the same was held
Supreme Court of the United States in 1906 in the case of the Jassy, a
recognised the fact that the latter Roumanian ship, 10 Aspinall, Mar.
had no jurisdiction over this French Gas. p. 278. See also the Charkieh
man-of-war. In the case of the (1873), L.R. 4 Adm. and EccL 59.
Constitution, an American man-of-
acts of violence against the officials of the littoral State

or against other vessels, steps may be taken against her
to prevent further acts of violence. But it must be
emphasised that even by committing acts of violence a
man-of-war does not fall under the jurisdiction of the
littoral State. Only such measures are allowed against
her as are necessary to prevent her from further acts
of violence.1
Position § 451. Of some importance is the unsettled question
of Crew
when on respecting
r 3the rposition
. of the commander and the crew
Land ot a man-of-war in foreign ports when they are on land.
The majority of publicists distinguish between a
stay on land in the service of the man-of-war and a
stay for other purposes.2 The commander and mem-
bers of the crew on land officially in the service of their
vessel, to buy provisions or to make other arrangements
respecting the vessel, remain under the exclusive juris-
diction oftheir home State, even for crimes they commit
on the spot. Although they may, if the case makes it
necessary, be arrested to prevent further violence, they
must at once be surrendered to the vessel. On the
other hand, if they are on land not officially, but for
purposes of pleasure and recreation, they are under the
territorial supremacy of the littoral State like any other
foreigners, and they may be punished for crimes com-
mitted ashore.
There are, however, a number of publicists 3 who do
not make this distinction, and who maintain that com-
manders or members of the crew whilst ashore are in
every case under the local jurisdiction.
1 Attention ought to be drawn to 9 See, for instance, Hall, § 55 ;
the " Reglement sur le regime legal des Phillimore, I. § 346 ; Testa, p. 109.
navires et de leurs equipages dans Us See also art. 18 of the " Jleglcment
ports Strangers," adopted by the sur les regime I6gal des navires et de
Institute of International Law, in leurs Equipages dans les ports Grangers,"
1898, at its meeting at the Hague adopted by the Institute of Inter-
of which articles 8-24 deal with national Law, in 1898, at its meeting
men-of-war in foreign waters; see at the Hague (Annuaire, XVII. (1898),
Annuaire, XVII. (1898), pp. 275-280. p. 278).
8 So also Moore, II. § 256.
WITHOUT DIPLOMATIC OR CONSULAR CHARACTER 509
III
AGENTS WITHOUT DIPLOMATIC OR CONSULAR

CHARACTER
Hall, §§ 103-104*— Moore, IV. § 623— Bluntschli, §§ 241-243— Ullmann, §§

66-67— Heffter, § 222— Kivier, I. § 44— Calvo, III. §§ 1337-1339— Fiore,
II. Nos. 1188-1191— Martens, II. § 5— Adler, "Die Spionage " (1906), pp.
63-92.
§ 452. Besides diplomatic envoys and consuls, States Agents

may and do send various kinds of agents abroad — Ông
namely, public political agents, secret political agents, maticor
spies, commissaries, bearers of despatches. Their posi- character.
tion is not the same, but varies according to the class
they belong to, and they must therefore be severally
treated.
§ 453. Public political agents are agents sent by one public
Power to another for political negotiations of different Agent?1
kinds. They may be sent for a permanency or for a
limited time only. As they are not invested with diplo-
matic character, they do not receive a Letter of Credence,
but a letter of recommendation or commission only.
They may be sent by one full-Sovereign State to an-
other, but also by and to insurgents recognised as a
belligerent Power, and by and to States under suzerainty.
Public (or secret) political agents without diplomatic
character are, in fact, the only means for personal poli-
tical negotiations with such insurgents and States under
suzerainty.
As regards the position and privileges of such agents,
it is obvious that they enjoy neither the position nor
the privileges of diplomatic envoys.1 But, on the other
hand, they have a public character, being admitted as
public political agents of a foreign State. They must,
therefore, certainly be granted a special protection, but
1 Hefiter, § 222, is, as far as I diplomatic character must neverthe-
know, the only publicist who main- less be granted the privileges of
tains that agents not invested with diplomatic envoys.
no distinct rules concerning special privileges to be

granted to such agents seem to have grown up in prac-
tice. Inviolability of their persons and official papers
ought to be granted to them.1
Secret § 454. Secret political agents may be sent for the
Political iV v,- i T>
Agents, same purposes as public political agents. But two
kinds of secret political agents must be distinguished.
An agent may be secretly sent to another Power with
a letter of recommendation and admitted by that
Power. Such agent is a secret one in so far as third
Powers do not know, or are not supposed to know, of
his existence. As he is, although secretly, admitted
by the receiving State, his position is essentially the
same as that of a public political agent. On the other
hand, an agent may be secretly sent abroad for political
purposes without a letter of recommendation, and
therefore without being formally admitted by the
Government of the State in which he is fulfilling his
task. Such agent has no recognised position whatever
according to International Law. He is not an agent
of a State for its relations with other States, and he is
therefore in the same position as any other foreign indi-
vidual living within the boundaries of a State. He
may be expelled at any moment if he becomes trouble-
some, and he may be criminally punished if he commits
a political or ordinary crime. Such secret agents are
often abroad for the purpose of watching the movements
of political refugees or partisans, or of Socialists, Anar-
chists, Nihilists, and the like. As long as such agents
do not turn into so-called agents provocateurs, the local
authorities will not interfere.
Spies. § 455. Spies are secret agents of a State sent abroad 2
for the purpose of obtaining clandestinely information
1 Ullmann, § 66, and Rivier, I. § 40, 2 Concerning spies in time of war,
maintain that they must be granted see below, vol. II. §§ 159 and 210,
the privilege of inviolability to the and Adler, "Die Spionage" (1906),
same extent as diplomatic envoys. pp. 7-62.
WITHOUT DIPLOMATIC OR CONSULAR CHARACTER 511
in regard to military or political secrets. Although all

States constantly or occasionally send spies abroad, and
although it is neither morally nor politically and legally
considered wrong to send spies, such agents have, of
course, no recognised position whatever according to
International Law, since they are not agents of States
for their international relations. Every State punishes
them severely when they are caught committing an act
which is a crime by the law of the land, or expels them
if they cannot be punished. And a spy cannot legally
excuse himself by pleading that he only executed the
orders of his Government. The latter, on the other
hand, will never interfere, since it cannot officially
confess to having commissioned a spy.
§ 456. Commissaries are agents sent with a letter Com-
of recommendation or commission by one State to an-
other for negotiations, not of a political but of a tech-
nical or administrative character only. Such commis-
saries are, for instance, sent and received for the purpose
of arrangements between the two States as regards rail-
ways, post, telegraphs, navigation, delineation of boun-
dary lines, and so on. A distinct practice of guarantee-
ing certain privileges to such commissaries has not
grown up, but inviolability of their persons and official
papers ought to be granted to them, as they are officially
sent and received for official purposes. Thus Germany,
in 1887, in the case of the French officer of police Schnae-
bele, who was invited by local German functionaries to
cross the German frontier for official purposes and then
arrested, recognised the rule that a safe-conduct is
tacitly granted to foreign officials when they enter
officially the territory of a State with the consent of
the local authorities, although Schnaebele was not a
commissary sent by his Government to the German
Government. ^DeT
§ 457. Individuals commissioned to carry official patches.
despatches from a State to its head or to diplomatic

envoys abroad are agents of such State. Despatch-
bearers who belong to the retinue of diplomatic envoys
as their couriers must enjoy, as stated above (§ 405),
exemption from civil and criminal jurisdiction and a
special protection in the State to which the envoy is
accredited, and a right of innocent passage through
third States. But bearers of official despatches who
are not in the retinue of the diplomatic envoys employ-
ing them must nevertheless be granted inviolability for
their person and official papers, provided they possess
special passports stating their official character as
despatch-bearers. And the same is valid respecting
bearers of despatches between the head of a State who
is temporarily abroad and his Government at home.
IV
INTERNATIONAL COMMISSIONS
Rivier, I. pp. 564-566— Ullmann, § 68— Gareis, §§ 51-52— Liszt, § 16— Moore,
IV. § 623.
Perma- § 458. A distinction must be made between tem-

contradis- porary and permanent international commissions. The
tinction to former consist of commissaries delegated by two or more
porary States to arrange all kinds of non-political matters,
sions. such as railways, post, telegraphs, navigation, boundary
lines, and the like. Such temporary commissions dis-
solve as soon as their purpose is realised.1 Besides
temporary commissions, there are, however, permanent
1 The position of their members involving neither honour nor vital
has been discussed above, § 456. interests, and arising from a differ-
Quite novel institutions are the ence of opinion on matters of fact,
International Commissions of In- the parties should institute an Inter-
quiry recommended by the Hague national Commission of Inquiry ;
Peace Conferences of 1890 and 1907. this commission to present a re-
Articles 9 to 36 of the Hague Con- port to the parties, which shall be
vention for the peaceful adjustment limited to a statement of the facts,
of international differences provide See below, vol. II. § 5.
that, in international differences
INTERNATIONAL COMMISSIONS 513
commissions in existence. They have been instituted

by the Powers l in the interest of free navigation on two
international rivers and the Suez Canal ; further, in
the interest of international sanitation ; thirdly, in the
interest of the foreign creditors of several States unable
to pay the interest on their stocks ; and, lastly, concern-
ing bounties on sugar.
As regards the privileges to be granted to the mem-
bers of either temporary or permanent international
commissions, no distinct practice has grown up. If the
treaty according to which a commission concerned does
not stipulate anything as regards such privileges, none
need be granted, but the persons of the commissioners
must be specially protected. However that may be,
there is no doubt that members of international com-
missions cannot, unless this be specially stipulated,
claim the privileges of diplomatic envoys. Thus, when
in 1796 Messrs. Gore and Pinkney,2 the American Com-
mis ioners inLondon under article 7 of the Jay Treaty,
claimed these privileges, Great Britain refused to
concede them.
§ 459. Four international commissions have been com-
instituted in the interest of navigation — namely, two h^the"8
for the river Danube, one for the Congo river, and one rfNa
for the Suez Canal. *«>n.
1. With regard to navigation on the Danube,
the European Danube Commission was instituted by
1 Only such permanent com- International Joint Commission con-
missions are mentioned in the text cerning boundary waters, instituted
as have been instituted by the by articles 7-12 of the Treaty of
Powers in conference. There are, Washington of January 11, 1909 ;
however, many permanent commis- see Treaty Series, 1910, No. 23.
sions in existence which have been (3) The permanent Mixed Fisheries
instituted by neighbouring Powers Commission between the United
for local purposes, as for example :— States, Canada, and Newfoundland,
(1) The American-Canadian Inter- instituted in consequence of the
national Fisheries Commission, award of the Hague Court of Arbitra-
instituted according to article 1 of tion in the North Atlantic Fisheries
the Treaty of Washington of April Case.
11, 1908 ; see Treaty Series, 1908, * See Moore, IV. § 623, p. 428.
No. 17. (2) The American-Canadian
VOL. I. 2 K
article 16 of the Peace Treaty of Paris in 1856. This

commission, whose members are appointed by the
signatory Powers of the Treaty of Paris, was reconsti-
tuted by the Berlin Conference in 1878 and again by
the Conference of London in 1883. The commission
is totally independent of the territorial Governments,
its rights are clearly defined, and its members, offices,
and archives enjoy the privilege of inviolability. The
competence of the European Danube Commission com-
prehends the Danube from Ibraila downwards to its
mouth.1
2. The above-mentioned London Conference of 1883
has sanctioned regulations 2 in regard to the navigation
and river-police of the Danube from the Iron Gates
down to Ibraila, and has, by article 96 of these regula-
tions, instituted the Mixed Commission of the Danube to
enforce the observance of the regulations. The members
of this Commission are delegates from Austria-Hungary,
Bulgaria, Eoumania, Servia, and the European Danube
Commission — one member from each.3
3. The Powers represented at the Berlin Congo
Conference of 1884 have sanctioned certain regulations
in regard to navigation on the Congo river, and have,
by articles 17-21 of the General Act of the Conference,
instituted an International Commission of the Congo
to enforce the observance of these regulations. This
Commission, in which every signatory Power may be
represented by one member, is totally independent of
the territorial Governments, and its members, offices,
and archives enjoy the privilege of inviolability.4
4. By article 8 of the Treaty of Constantinople of
1888 in regard to the neutralisation of the Suez Canal,
a Commission was instituted for the supervision of the
1 Details in Tvviss, I. §§ 150-152. * Details in Calvo, I. § 334.
2 Martens, N.R.G. 2nd Ser. IX. According to Liszt, § 16, II. 3, this
p. 394. Commission has never been ap-
8 Details in Twiss, § 152. pointed.
INTERNATIONAL OFFICES 515
execution of that treaty. The Commission consists of

all the consuls of the signatory Powers in Egypt.1
§ 460. Three international commissions in the in-
terest of sanitation are in existence. For the purpose
of supervising the sanitary arrangements in connection
with the navigation on the lower part of the Danube, tion.
the International Council of Sanitation was instituted
at Bucharest in 1881. 2 The Conseil superieur de saute
at Constantinople has the task of supervising the arrange-
ments concerning cholera and plague. The Conseil sani-
taire maritime et quarantenaire at Alexandria has similar
tasks and is subject to the control of the Conseil superieur
de sante at Constantinople.3 As regards the International
Health Office at Paris, see below, § 590, No. 6.
§ 461. Three international commissions in the in-
terest of foreign creditors are in existence — namely, in
Turkey since 1878, in Egypt since 1880, and in Greece
Since 1897.4 Creditors.
§T-*
462. According -,
to article
..
7 of the Brussels Con-. Perma-
nentCom-
vention concerning bounties on sugar, a permanent mission
commission was instituted in 1902 at Brussels.5
INTERNATIONAL OFFICES
Rivier, I. pp. 564-566— Nys, II. pp. 264-270— Ullmann, § 58— Liszt, § 17—
Gareis, § 52 — Descaraps, " Les offices internationaux et leur avenir "
(1894).
§ 463. During the second half of the nineteenth cen- character

tury a great number of general treaties were entered national
Offices.
into by a greater or lesser number of States for the pur-
1 See above, § 183. Tangiers, which consists of all the
2 See article 6 of the Acte addi- foreign envoys in Morocco.
tionnel a I'Acte public du 2 novembre * See Kaufmann, "Das inter-
1865 pour la navigation des em- nationale Recht der aegyptischen
bouchures du Danube, signed on May Staatsschuld " (1891), and Murat," Le
28, 1881 ; Martens, N.R.G. 2nd Ser. contrdle international sur les finances
VIII. p. 207. de 1'Egypte, de la Grece et de la
8 Details in Liszt, § 16, III., where Turquie " (1899).
likewise information is to be found 5 See below, § 585, No. 3.
as regards the Conseil sanitaire at
pose of settling in common certain non-political matters.

These general treaties create so-called unions among the
parties, and the business of these unions is in most cases
transacted by international offices created specially for
that purpose. The functionaries of these offices, however,
ordinarily enjoy no privilege whatever. The number
of these offices is constantly increasing. Only the more
important ones are here enumerated, with the exclusion
of the International Bureau of Arbitration,1 which,
although an international office, has no relation to
those here discussed.
inter- § 464. In 1868 the international telegraph office
Telegraph °^ the International Telegraph Union was created at
offices. Berne. It is administered by four functionaries under
the supervision of the Swiss Bundesrath. It edits the
Journal Telegraphique in French.2 Connected with
this office is, since 1906, the International Office for
Kadiotelegraphy.3
inter- § 465. The pendant of the international telegraph
Post°n2 office is the international post office of the Universal
office- Postal Union created at Berne in 1874. It is ad-
ministered by seven functionaries under the super-
vision of the Swiss Bundesrath, and edits a monthly,
L 'Union Postale, in French, German, and English.4
inter- § 466. The States which have introduced the metric
SfficTof system of weights and measures created in 1875 the
weights international office of weights and measures in Paris.
Measures. Of functionaries there are a director and several assis-
tants. Their task is the custody of the international
prototypes of the metre and kilogramme and the com-
parison ofthe national prototypes with the international.5
inter- § 467. In 1883 an International Union for the Pro-
officTfor tection of Industrial Property, and in 1886 an Inter-
the Pro- of national Union for the Protection of Works of Literature
tection
Works of i See below, § 474. 4 See below, § 682, No. 1.
2 See below, § 582, No. 2. 6 See below, § 588, No. 1.
3 See below, § 582, No. 4.
INTERNATIONAL OFFICES 517
and Art, were created, with an international office in Literature

Berne. There are a secretary-general and three assis- SSdof*
tants,' who edit a monthly,/' Le Droit d'Auteur, in industrial
Property.
French.1
§ 467a. The first Pan-American Conference of 1889 The Pan-
created " The American International Bureau/' which, union?*"
since the fourth Conference of 1910, bears the name
tf The Pan-American Union." There are a director, an
assistant director, and several secretaries. This office 2
publishes a " Monthly Bulletin."
§ 468. In accordance with the General Act of the Maritime
Anti-Slavery Conference of Brussels, 1890, the Inter- Zanzibar,
national Maritime Office at Zanzibar and the " Bureau
Special " at Brussels were established ; the latter is
attached to the Belgian Foreign Office at Brussels.3
§ 469. The International Union for the Publication inter-
of Customs Tariffs, concluded in 1890, has created an
international office 4 at Brussels. There are a director,
a secretary, and ten translators. The office edits the
Bulletin des Louanes in French, German, English,
Italian, and Spanish.
§ 470. Nine States — namely, Austria-Hungary, Bel- central
gium, France, Germany, Holland, Italy, Luxemburg,
Russia, Switzerland— entered in 1890 into an inter-
national convention in regard to transports and freights ports.
on railways and have created the " Office Central des
Transports 5 Internationaux " at Berne.
§ 471. The States which concluded on March 5, Perman-
1902, at Brussels the Convention concerning bounties of the °
on sugar6 have, in compliance with article 7 of this c^ven-
Convention, instituted a permanent office at Brussels.
The task of this office, which is attached to the per-
manent commission,7 also instituted by article 7, is to
1 See below, §§ 584 and 585, No. 2. 5 See below, § 583, No. 1.
2 See below, § 595. 6 See below, § 585, No. 3.
3 See below, § 592, No. 1. 7 See above, § 462.
* See below, § 585, No. 1.
collect, translate, and publish information of all kinds

respecting legislation on and statistics of sugar.
Agricui- § 47 la. In 1905 the Agricultural Institute 1 was
institute, established at Rome. It consists of a General Assembly
and a Permanent Committee with a general secretary.
inter- § 4716. In 1907 the International Health Office2
Health3 was established at Paris. It consists of a director, a
general secretary, and a number of clerks. It pub-
lishes atleast once a month a bulletin in French.
VI
THE INTERNATIONAL COURT OF ARBITRATION
Lawrence, § 221— Bonfils, No. 970 8 — Despagnet, Nos. 736-740.
organ isa- § 472. In compliance with articles 20 to 29 of the

Court in Hague Convention for the peaceful adjustment of inter-
generai. national differences, the signatory Powers in 1900
organised the International Court of Arbitration at
the Hague. This organisation comprises three distinct
bodies — namely, tlie Permanent Administrative Council
of the Court, the International Bureau of the Court,
and the Court of Arbitration itself. But a fourth body
must also be distinguished — namely, the^tribunal to be
constituted for the decision of every case. Articles 20
to 29 are now replaced by articles 41 to 50 of the Con-
vention for the peaceful adjustment of international
differences produced by the second Hague Peace Con-
ference of1907.
The Per- § 473. The Permanent Council (article 49) consists
council °f the diplomatic envoys of the contracting Powers
accredited to Holland and the Dutch Secretary for
Foreign Affairs, who acts as president of the Council.
The task of the Council is the control of the Inter-
1 See below, § 586, No. 1. 2 See below, § 590, No. 6.
THE INTERNATIONAL COURT OF ARBITRATION 519
national Bureau of the Court, the appointment, sus-

pension, and dismissal of the employes of the bureau,
the fixing of the payments and salaries, the control of
the general expenditure, and the decision of all ques-
tions of administration with regard to the business of
the Court. The Council has, further, the task of fur-
nishing the signatory Powers with a report of the pro-
ce dings ofthe Court, the working of the administration,
and the expenses. At meetings duly summoned, the
presence of nine members is sufficient to give the Council
power to deliberate, and its decisions are taken by a
majority of votes.
§ 474. The International Bureau (article 43) serves The int
as the Registry for the Court. It is the intermediary
for communications relating to the meetings of the
Court. It has the custody of the archives and the
conduct of all the administrative business of the Court.
The contracting Powers have to furnish the Bureau
with a certified copy of every stipulation concerning
arbitration arrived at between them, and of any award
concerning them rendered by a special tribunal. They
likewise have to communicate to the Bureau the laws,
regulations, and documents, if any, showing the execu-
tion of the awards given by the Court. The Bureau is
(article 47) authorised to place its premises and its staff
at the disposal of the contracting Powers for the work
of any special * tribunal of arbitration not constituted
within the International Court of Arbitration. The
expense (article 50) of the Bureau is borne by the
signatory Powers in the proportion established for the
International Office of the International Postal Union.
§ 475. The Court of Arbitration (article 44) consists The court
of a large number of individuals " of recognised com-
petence in questions of International Law, enjoying the
highest moral reputation/' selected and appointed by
1 See below, vol. II. § 20.
the contracting Powers. No more than four members

Power, butof two~o~r more
may be may
Powers appointedunite inbytheoneappointment one or more
members, and the same individual may be appointed
by different Powers. Every member is appointed for
a term of six years, but his appointment may be re-
newed. The pjace of a resigned or deceased member
is to be refilled by the respective Powers, and in this
case the appointment is made for a fresh period of six
years. The names of the members of the Court thus
appointed are enrolled upon a general list, which is to
be kept up to date and communicated to all the con-
tracting Powers. The Court thus constituted has
jurisdiction over all cases of arbitration, unless there
shall be an agreement between the parties for a special
tribunal of arbitrators not selected from the list of the
members of the Court (article 42).
The De- § 476. The Court of Arbitration does not as a body
Tribunal, decide the cases brought before it, but a tribunal is
created for every special case by selection of a number
of arbitrators from the list of the members of the Court.
This tribunal (article 45) may be created directly by
agreement of the parties. If this is not done, the
tribunal is formed in the following manner :— Each party
I selects two arbitrators from the list, of whom one only
j can be its national or chosen from the persons appointed
I by it as members of the Permanent Court, and the four
arbitrators so appointed choose a fifth as umpire and
president. If the votes of the four are equal, the
parties entrust to a third Power the choice of the umpire.
If the parties cannot agree in their choice of such third
Power, each party nominates a different Power, and the
umpire is chosen by the united action of the Powers
thus nominated. If within two months' time these two
Powers cannot come to an agreement, each of them
presents two candidates from the list of members of
THE INTERNATIONAL COUET OF ARBITRATION 521
the Permanent Court, exclusive of the members selected

by the parties and not being nationals of either of them.
Which of the candidates thus selected shall be the
umpire is determined by lot.
After this is done, the tribunal is constituted, and
the parties communicate to the International Bureau
of the Court the names of the members of the tribunal,
which meets at the time fixed by the parties ; the
members of the tribunal must be granted the privileges
of diplomatic envoys when discharging their duties
outside their own country (article 46). The tribunal
sits at the Hague (article 43), and, except in case of
force majeure, the place of session can only be altered
by the tribunal with the assent of the parties, but the
parties can from the beginning designate another place
than the Hague as the venue of the tribunal (article 60).
The expenses of the tribunal are paid by the parties in
equal shares, and each party pays its own expenses
(article 85). *
The following nine awards have hitherto been given
by the Permanent Court of Arbitration :—
(1) On October 14, 1902, in the case of the United States of
America v. Mexico concerning the Fonds pieux des Californias ;
see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 193.
(2) On February 22, 1904, in the case of Germany, Great
Britain, and Italy v. Venezuela concerning certain claims of
their subjects ; see Martens, N.R.G. 3rd Ser. I. (1909), p. 57.
(3) On May 22, 1905, in the case of Germany, France, and
Great Britain v. Japan concerning the interpretation of article
18 of the treaty of April 4, 1896, and of other treaties ; see
Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 376.
(4) On August 8, 1905, in the case of France v. Great Britain
concerning the Muscat Dhows ; see Martens, N.R.G. 2nd Ser.
XXXV. (1908), p. 356.
(5) On May 22, 1909, in the case of France v. Germany con-
cerning the Casa Blanca incident ; see Martens, N.R.G. 3rd
Ser. II. (1910), p. 19.
1 The procedure to be followed by and before the Tribunal is described
below, vol. II. § 27.
(6) On October 23, 1909, in the case of Norway v. Sweden

concerning the question of their maritime frontier ; see Martens,
N.R.G. 3rd Ser. III. (1910), p. 85.
(7) On September 7, 1910, in the case of the United States of
America v. Great Britain concerning the North Atlantic Fish-
eries ;see Martens, N.R.G. 3rd Ser. IV. (1911), p. 89.
(8) On October 25, 1910, in the case of the United States of
America v. Venezuela concerning the claims of the Orinoco
Steamship Co. ; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 79.
(9) On February 24, 191 1 , in the case of France v. Great Britain
concerning the British-Indian Savarkar ; see Martens, N.R.G.
3rd Ser. IV. (1911), p. 744.
VII
THE INTERNATIONAL PRIZE COURT AND THE PROPOSED
INTERNATIONAL COURT OF JUSTICE
Lawrence, § 192 — Despagnet, No. 683 bi8 — Scott, "The Hague Peace Con-
ferences (1909),
" pp. 465-511 and 423-464, and in A.J. V. (1911), pp. 302-
324— Gregory in A.J. II. (1908), pp. 458-475.
The inter- § 476&. The International Prize Court will be estab-

Prizenal lished at the Hague according to Convention XII. of
Court- the second Hague Peace Conference of 1907. The fol-
lowing are the more important stipulations of this
Convention concerning the constitution 1 of the Court :—
The Court consists of fifteen judges and fifteen deputy
judges, who are appointed for a period of six years and
who rank equally and have precedence according to
the date of the notification of their appointment, but
the deputy judges rank after the judges (articles 10 to
12). Of the fifteen judges of which the Court is com-
posed, nine constitute a quorum ; a judge who is absent
or prevented from sitting is replaced by his deputy judge
(article 14). The judges enjoy diplomatic privileges
and immunities in the performance of their duties
1 Details concerning the constitu- followed by and before it, will be
tion of the International Prize Court given below, vol. II. part III.
and the mode of procedure to be chapter VI.
THE INTERNATIONAL PRIZE COURT 523
when outside their own country (article 13). Each

contracting Power appoints one judge and one deputy
judge, and the judges appointed by Great Britain,
Germany, the United States of America, Austria-Hun-
gary, France, Italy, Japan, and Russia are always
summoned to sit, whereas the judges appointed by the
other contracting Powers sit by rota, as shown in the
table annexed to the Convention (article 15). If a
belligerent Power has, according to the rota, no judge
sitting in the Court, it may ask that the judge appointed
by it shall take part in the settlement of all cases arising
from the war ; lots shall then be drawn as to which of
the judges entitled to sit according to the rota shall
withdraw, and this arrangement does not affect the
judge appointed by the other belligerent (article 16).
No judge can sit who has been a party, in any way
whatever, to the sentence pronounced by the National
Courts, or has taken part in the case as counsel or
advocate for one of the parties ; no judge or deputy
judge can, during his tenure of office, appear as agent
or advocate before the International Prize Court, nor
act for one of the parties in any capacity whatever
(article 17). The belligerent captor is entitled to ap-
point a naval officer of high rank to sit as assessor, but
with no voice in the decision ; a neutral Power, which
is a party to the proceedings or whose national is a
party, has the same right of appointment ; if in apply-
ing this last provision more than one Power is con-
cerned, they must agree among themselves, if necessary
by lot, on the officer to be appointed (article 18). The
Court elects its President and Vice-President by an
absolute majority of the votes cast ; after two ballots,
the election is made by a bare majority, and, in case
the votes are equal, by lot (article 19). The judges of
the International Prize Court are entitled to travelling
allowances in accordance with the regulations in force
in their own country, and in addition thereto receive,

while the Court is sitting or while they are carrying
out duties conferred upon them by the Court, a sum
of 100 Netherland florins per diem ; the judges may
not receive from their own Governments or from that
of any other Power any remuneration in their capacity
of members of the Court (article 20). The seat of the
International Prize Court is at the Hague, and it cannot,
except in the case of force majeure, be transferred else-
where without the consent of the belligerents (article 21).
The pro- § 4766. Valuable as is the Permanent Court of Arbi-
inter- tration at the Hague, it must be pointed out that it is
courtof not a real Court of Justice. For, firstly, it is not itself
justice, a deciding tribunal, but only a list of names out of
which the parties in each case elect some members
and thereby constitute the Court. Secondly, experience
teaches that a Court of Arbitration endeavours more to
give an award ex aequo et bono which more or less pleases
both parties than to decide the conflict in a judicial
manner by simply applying strict legal rules without
any consideration as to whether or no the decision
will please either party. Thirdly, since in conflicts to
be decided by arbitration the arbitrators each time
are selected by the parties, there are in most cases
different individuals acting as arbitrators, so that there
is no continuity in the administration of justice.
For these reasons it would be of the greatest value
to institute side by side with the Permanent Court of
Arbitration a real International Court of Justice con-
sisting ofa number of judges in the technical sense of
the term, who are once for all appointed and will have
to act in each case that the parties choose to bring
before the Court. Such a Court would only take the
legal aspects of the case into consideration and would
base its decision on mere legal deliberations. It would
secure continuity in the administration of international
THE INTERNATIONAL PRIZE COURT 525
justice, because it would in each case consider itself

bound by its former decisions. It would in time build
up a valuable practice by deciding innumerable con-
troversies which as yet haunt the theory of International
Law. The second Hague Peace Conference of 1907
therefore discussed the question of creating such a
Court, but only produced the draft of a Convention
concerning the subject. It is, however, to be regretted
that this draft Convention speaks of the creation of a
judicial " Arbitration " Court, and thereby obliterates
the boundary line between the arbitral and the strictly
judicial decision of international disputes ; it would
have been better to speak simply of an International
Court of Justice. However that may be, there is no
doubt that the near future will bring the establishment
of such a Court of Justice in contradistinction to the
Permanent Court of Arbitration, for the parties to a
conflict frequently hesitate to have it settled by arbi-
tration, whereas they would be glad to have it settled
by a strictly judicial decision of the legal questions in-
volved. The same motives which urged the Powers to
leave aside the Permanent Court of Arbitration in Prize
Cases and to enter into a Convention for the establish-
ment of a real International Prize Court, will in time
compel the Powers to establish a real International
Court of Justice.1
1 It should be mentioned that selves to submit all controversies
Costa Eica, Guatemala, Honduras, arising amongst them, of whatsoever
Nicaragua, and San Salvador in 1907 nature, no matter what the origin
— see Supplement to the American may be, in case they cannot be
Journal of International Zaw, II. settled by diplomatic negotiation.
( 1908), p. 231— established the This Court is, however, only of local
" Central American Court of Justice " importance, although it is of great
at Cartago, consisting of five judges, value, being the first Court of its
to which they have bound them- kind.
PART IV
INTERNATIONAL TRANSACTIONS
CHAPTER I
ON INTERNATIONAL TRANSACTIONS IN GENERAL
I
NEGOTIATION
Heffter, §§ 234-239— Geffcken in Holtzendorff, III. pp. 668-676— Liszt, § 20

— Ullmann, § 71— Bonfils, Nos. 792-795— Pradier-Fode're', III. Nos.
1354-1362— Rivier, II. § 45— Calvo, III. §§ 1316-1320, 1670-1673.
§ 477. International negotiation is the term for such Concep-

intercourse between two or more States as is initiated NegotL-
and directed for the purpose of effecting an under- tion-
standing between them on matters of interest. Since
civilised States form a body interknitted through their
interests, such negotiation is in some shape or other
constantly going on. No State of any importance can
abstain from it in practice. There are many other
international transactions,1 but negotiation is by far
the most important of them. And it must be empha-
sised that negotiation as a means of amicably settling
conflicts between two or more States is only a particular
kind of negotiation, although it will be specially dis-
cussed inanother part of this work.2
§ 478. International negotiations can be conducted Parties to
by all such States as have a standing within the Family tion.° l'
of Nations. Full-Sovereign States are, therefore, the
regular subjects of international negotiation. But it
would be wrong to maintain that half- and part-Sove-
reign States can never be parties to international negotia-
tions. For they can indeed conduct negotiations on
1 See below, §§ 486-490. 2 See below, vol. II. §§ 4-6.
VOL. I. 529 2 L
530 INTERNATIONAL TRANSACTIONS IN GENERAL
those points concerning which they have a standing

within the Family of Nations. Thus, for instance, while
Bulgaria was a half-Sovereign State, she was nevertheless
able to negotiate on several matters with foreign States
independently of Turkey.1 But so-called colonial
States, as the Dominion of Canada, can never be parties
to international negotiations ; any necessary negotia-
tion for a colonial State must be conducted by the
mother- State to which it internationally belongs.2
It must be specially mentioned that such negotiation
as is conducted between a State, on the one hand, and,
on the other, a party which is not a State, is not inter-
national negotiation, although such party may reside
abroad. Thus, negotiations of a State with the Pope
and the Holy See are not international negotiations,
although all the formalities connected with international
negotiations are usually observed in this case. Thus,
too, negotiations on the part of States with a body of
foreign bankers and contractors concerning a loan, the
building of a railway, the working of a mine, and the
like, are not international negotiations.
Purpose of & 479. Negotiations between States may have various
Negotia- J J
tion. purposes. The purpose may be an exchange of views
only on some political question ; but it may also
be an arrangement as to the line of action to be taken
in future with regard to a certain point, or a settle-
ment of differences, or the creation of international
institutions, such as the Universal Postal Union for
example, and so on. Of the greatest importance are
those negotiations which aim at an understanding be-
tween members of the Family of Nations respecting the
very creation of rules of International Law by inter-
1 See above, § 91. Canada should have the power of
2 The demand on the part of making treaties independently of
many influential Canadian poli- Great Britain, necessarily includes
ticians, expressed after the verdict the demand to become in some
of the Arbitration Court in the respects a Sovereign State.
Alaska Boundary dispute, that
NEGOTIATION 531
national conventions. Since the Vienna Congress at

the beginning of the nineteenth century negotiations
between the Powers for the purpose of defining, creating,
or abolishing rules of International Law have been
frequently and very successfully conducted.1
§ 480. International negotiations are conducted by Negotia-
the agents which represent the negotiating States, whom y
The heads of these States may conduct the negotiations
in person, either by letters or by a personal interview.
Serious negotiations have in the past been conducted
by heads of States, and, although this is comparatively
seldom done, there is no reason to believe that personal
negotiations between heads of States will not occur in
future.2 Heads of States may also personally negotiate
with diplomatic or other agents commissioned for that
purpose by other States. Ambassadors, as diplomatic
agents of the first class, must, according to International
Law, have even the right to approach in person the head
of the State to which they are accredited for the purpose
of negotiation.3 The rule is, however, that negotiation
between States concerning more important matters is
conducted by their Secretaries for Foreign Affairs, with
the help either of their diplomatic envoys or of agents
without diplomatic character and so-called commis-
saries.4
§ 481. The Law of Nations does not prescribe any Form of
particular form in which international negotiations tion.
must be conducted. Such negotiations may, there-
fore, take place viva voce or through the exchange of
written representations and arguments, or both. The
more important negotiations are regularly conducted
through the diplomatic exchange of written communica-
tions, as only in this way can misunderstandings be
1 See below, §§ 555-5686. forces of belligerents are regularly
2 See below, § 495. conducted by soldiers. See below,
3 See above, § 365. vol. II. §§ 220-240.
4 Negotiations between armed
avoided, which easily arise during viva voce negotiations.

Of the greatest importance are the negotiations which
take place through congresses and conferences.1
During viva voce negotiations it happens sometimes
that a diplomatic envoy negotiating with the Secretary
for Foreign Affairs reads out a letter received from his
home State. In such case it is usual to leave a copy
of the letter at the Foreign Office. If a copy is refused,
the Secretary for Foreign Affairs can on his part refuse
to hear the letter read. Thus in 1825 Canning refused
to allow a Russian communication to be read to him
by the Russian Ambassador in London with regard to
the independence of the former Spanish colonies in
South America, because this Ambassador was not
authorised to leave a copy of the communication at
the British Foreign Office.2
End and § 482. Negotiations may and often do come to an
Negotiaf en(^ w^hout any effect whatever on account of the
tion- parties failing to agree. On the other hand, if negotia-
tions lead to an understanding, the effect may be two-
fold. It may consist either in a satisfactory exchange
of views and intentions, and the parties are then in no
way, at any rate not legally, bound to abide by such
views and intentions, or to act on them in the future ;
or in an agreement on a treaty, and then the parties
are legally bound by the stipulations of such treaty.
Treaties are of such importance that it is necessary to
discuss them in a special chapter.3
1 See below, § 483. 3 See below, §§ 491-554.
a As regards the language used
during negotiation, see above, § 359.
CONGRESSES AND CONFERENCES 533
II
CONGRESSES AND CONFERENCES
Phillimore, II. §§ 39-40— Twiss, II. § 8— Taylor, §§ 34-36— Bluntschli, § 12—

HeSter, § 242 — Geficken in Holtzendorff, III. pp. 679-684— Ullmann,
§§ 71-72— Bonfils, Nos. 796-814— Despagnet, Nos. 478-482— Pradier-
Fodere, VI. Nos. 2593-2599— Kivier, II. § 46— Nys, III. pp. 7-17—
Calvo, III. §§ 1674-1681— Fiore, II. Nos. 1216-1224, and Code, Nos.
1206-1245— Martens, I. § 52— Charles de Martens, " Guide diplomatique,"
vol. I. § 58 — Pradier-Fodere, " Cours de droit diplomatique" (1881), vol.
II. pp. 372-424— Zaleski, "Die volkerrechtliche Bedeutung der Con-
gresse " (1874) — Nippold, "Die Fortbildung des Verfahrens in vol-
kerrechtlichen Streitigkeiten " (1907), pp. 480-526.
§ 483. International congresses and conferences are concep

formal meetings of the representatives of several States £°JJ of
for the purpose of discussing matters of international
interest. rand/
coming to an agreement concerning. these and con-
ferences.
matters. As far as language is concerned, the term
" congress " as well as " conference " may be used for
the meetings of the representatives of only two States,
but as a rule congresses or conferences denote such
bodies only as are composed of the representatives of
a greater number of States. Several writers 1 allege
that there are characteristic differences between a con-
gress and a conference. But all such alleged differences
vanish in face of the fact that the Powers, when sum-
moning a meeting of representatives, name such body
either congress or conference indiscriminately. It is
not even correct to say that the more important meet-
ings are named congresses, in contradistinction to con-
ferences, for the Hague Peace Conferences of 1899 and
1907 were, in spite of their grand importance, denomi-
nated conferences.
Much more important than the mere terminological
difference between congress and conference is the dif-
ference ofthe representatives who attend the meeting.
1 See, for instance, Martens, I. § 52 ; Fiore, II. §§ 1216-1224, and
Code, No. 1231.
For it may be that the heads of the States meet at a

congress or conference, or that the representatives con-
sist of diplomatic envoys and Secretaries for Foreign
Affairs of the Powers. But, although congresses and
conferences of heads of States have been held in the
past and might at any moment be held again in the
future, there can be no doubt that the most important
matters are treated by congresses and conferences con-
sisting ofdiplomatic representatives of the Powers.
Parties to § 484. Congresses and conferences not being organ-
greaeea ised by customary or conventional International Law,
ferencea" no ruês exigt with regard to the parties of a congress or
conference. Everything depends upon the purpose for
which a congress or a conference meets, and upon the
Power which invites other Powers to the meeting. If
it is intended to settle certain differences, it is reasonable
that all the States concerned should be represented, for a
Power which is not represented need not consent to
the resolutions of the congress. If the creation of new
rules of International Law is intended, at least all full-
Sovereign members of the Family of Nations ought to
be represented. To the First Peace Conference at the
Hague, nevertheless, only the majority of States were
invited to send representatives, the South American
Eepublics not being invited at all. But to the Second
Peace Conference of 1907 forty-seven States were in-
vited, although only forty-four sent representatives.
Costa Rica, Honduras, and Abyssinia were invited, but
did not send any delegates.
It is frequently maintained that only full-Sovereign
States can be parties to congresses and conferences.
This is certainly not correct, as here, too, everything
depends upon the merits of the special case. As a
rule, full-Sovereign States only are parties, but there
are exceptions. Thus, Bulgaria, at the time a vassal
under Turkish suzerainty, was a party to the First as
CONGRESSES AND CONFERENCES 535
well as to the Second Hague Peace Conference, although

without a vote. There is no reason to deny the rule
that half- and part-Sovereign States can be parties to
congresses and conferences in so far as they are able
to negotiate internationally.1 Such States are, in fact,
frequently asked to send representatives to such con-
gresses and conferences as meet for non-political matters.
But no State can be a party which has not been
invited, or admitted at its own request. If a Power
thinks it fitting that a congress or conference should
meet, it invites such other Powers as it pleases. The
invited Powers may accept under the condition that
certain other Powers should or should not be invited
or admitted. Those Powers which have accepted the
invitation become parties if they send representatives.
Each party may send several representatives, but they
have only one vote, given by the senior representative
for himself and his subordinates.
§ 485. After the place and time of meeting have Procedure
been arranged — such place may be neutralised for the
purpose of securing the independence of the delibera-
tions and discussions — the representatives meet and
constitute themselves by exchanging their commissions
and electing a president and other officers. It is usual,
but not obligatory,2 for the Secretary for Foreign
Affairs of the State within which, the congress meets
to be elected president. If the difficulty of the ques-
tions on the programme makes it advisable, special
committees are appointed for the purpose of preparing
the matter for discussion by the body of the congress.
In such discussion all representatives can take part.
After the discussion follows the voting. The motion
must be carried unanimously to consummate the task
of the congress, for the vote of the majority has no
1 See above, § 478. Conferences the first Russian delegate
2 Thus at both Hague Peace was elected president.
power whatever in regard to the dissenting parties.

But it is possible that the majority considers the motion
binding for its members. A protocol is to be kept of
all the discussions and the voting. If the discussions
and votings lead to a final result upon which the parties
agree, all the points agreed upon are drawn up in an
Act, which is signed by the representatives and which
is called the Final Act or the General Act of the con-
gress or conference. A party can make a declaration
or a reservation in signing the Act for the purpose of
excluding a certain interpretation of the Act in the
future. And the Act may expressly stipulate freedom
for States which were not parties to accede to it in
future.
Ill
TRANSACTIONS BESIDES NEGOTIATION
Bluntschli, § 84— Hartmann, § 91 ; Gareis, § 77— Liszt, § 20.
Different § 486. International transaction is the term for

Transac- everv ac^ on *ne Par^ °^ a State in its intercourse with
tion- other States. Besides negotiation, which has been
discussed above in §§ 477-482, there are eleven other
kinds of international transactions which are of legal
importance — namely, declaration, notification, protest,
renunciation, recognition, intervention, retorsion, re-
prisals, pacific blockade, war, and subjugation. Ke-
cognition has already been discussed above in §§ 71-75,
as has also intervention in §§ 134-138, and, further,
subjugation in §§ 236-241. Ketorsion, reprisals, pacific
blockade, and war will be treated in the second volume
of this work. There are, therefore, here to be discussed
only the remaining four transactions — namely, declara-
tion, notification, protest, and renunciation.
t,ion.ai § 487. The term " declaration " is used in three
TRANSACTIONS BESIDES NEGOTIATION 537
different meanings. It is, first, sometimes used as the

title of a body of stipulations of a treaty according to
which the parties engage themselves to pursue in future
a certain line of conduct. The Declaration of Paris,
1856, the Declaration of St. Petersburg, 1868, and the
Declaration of London, 1909, are instances of this.
Declarations of this kind differ in no respect from
treaties.1 One speaks, secondly, of declarations when
States communicate to other States or urbi et orbi an
explanation and justification of a line of conduct pur-
sued by them in the past, or an explanation of views
and intentions concerning certain matters. Declara-
tions of this kind may be very important, but they
hardly comprise transactions out of which rights and
duties of other States follow. But there is a third
kind of declarations out of which rights and duties do
follow for other States, and it is this kind which com-
prises a specific international transaction, although the
different declarations belonging to this group are by
no means of a uniform character. Declarations of this
kind are declarations of war, declarations on the part
of belligerents concerning the goods they will condemn
as contraband, declarations at the outbreak of war on
the part of third States that they will remain neutral,
and others.
§ 488. Notification is the technical term for the Notifica-
communication to other States of the knowledge of
certain facts and events of legal importance. But a
distinction must be drawn between obligatory and
merely usual notification.
Notification has of late been stipulated in several
cases to be obligatory. Thus, according to article 34 of
the General Act of the Berlin Congo Conference of 1885,
notification of new occupations and the like on the
1 See below, § 508, where is men- term " declaration " a specific
tioned the attempt of the British meaning.
Foreign Office to give to the
African coast is obligatory. Thus, further, according to

article 84 of the Hague Convention for the peaceful
adjustment of international differences, in case a num-
ber of States are parties to a treaty and two of the
parties are at variance concerning the interpretation of
such treaty and agree to have the difference settled by
arbitration, they have to notify this agreement to all
other parties to the treaty. Again, according to article
2 of the Hague Convention concerning the Commence-
ment of Hostilities, 1907, the outbreak of war must be
notified to the neutral Powers, and so must the declara-
tion of a blockade,1 according to article 11 of the
Declaration of London, 1909.
Apart from such cases in which notification is stipu-
lated as obligatory, it is in principle not obligatory,
although in fact it frequently takes place because
States cannot be considered subject to certain duties
without the knowledge of the facts and events which
give rise to these duties. Thus it is usual to notify to
other States changes in the headship and in the form
of government of a State, the establishment of a Federal
State, an annexation after conquest, the appointment
of a new Secretary for Foreign Affairs, and the like.
Protest. § 489. Protest is a formal communication on the
part of a State to another that it objects to an act
performed or contemplated by the latter. A protest
serves the purpose of preservation of rights, or of
making it known that the protesting State does not
acquiesce in and does not recognise certain acts. A
protest can be lodged with another State concerning
acts of the latter which have been notified to the former
or which have otherwise become known. On the other
hand, if a State acquires knowledge of an act which it
considers internationally illegal and against its rights,
and nevertheless does not protest, such attitude im-
1 See also Declaration of London, articles 11 (2), 16, 23, 25, and 26.
TRANSACTIONS BESIDES NEGOTIATION 539
plies renunciation of such rights, provided a protest

would have been necessary to preserve a claim. It
may further happen that a State at first protests, but
afterwards either expressly * or tacitly acquiesces in the
act. And it must be emphasised that under certain
circumstances and conditions a simple protest on the
part of a State without further action is not in itself
sufficient to preserve the rights in behalf of which the
protest was made.2
§ 490. Eenunciation is the deliberate abandonment
of rights. It can be given expressis verbis or tacitly.
If, for instance, a State by occupation takes possession
of an island which has previously been occupied by
another State,3 the latter tacitly renounces its rights
by not protesting as soon as it receives knowledge of
the fact. Renunciation plays a prominent part in the
amicable settlement of differences between States, either
one or both parties frequently renouncing their claims
for the purpose of coming to an agreement. But it
must be specially observed that mere silence on the
part of a State does not imply renunciation ; this occurs
only when a State remains silent, although a protest is
necessary to preserve a claim.
1 Thus by section 2 of the Declara- lished at Madagascar after the
tion concerning Siam, Madagascar, annexation to France,
and the New Hebrides, which is 2 See below, § 539, concerning the
embodied in the Anglo-French withdrawal of Russia from article 59
Agreement of April 8, 1904, Great of the Treaty of Berlin, 1878,
Britain withdrew the protest which stipulating the freedom of the port
she had raised against the intro- of Batoum.
duction of the Customs tariff estab- 3 See above, § 247.
CHAPTER II
TREATIES
I
CHARACTER AND FUNCTION OF TREATIES
Vattel, II. §§ 152, 153, 157, 163— Hall, § 107— Phillimore, II. § 44— Twiss, I.
§§ 224-233— Taylor, §§ 341-342— Bluntschli, § 402— Heffter, § 81—
Despagnet, Nos. 435-436— Pradier-Fode're, II. Nos. 888-919— Rivier, II.
pp. 33-40— Nys, III. pp. 18-20 and 43-48— Calvo, III. §§ 1567-1584—
Fiore, II. Nos. 976-982— Martens, I. § 103— Bergbohm, " Staatsvertrage
und Gesetze als Quellen des Volkerrechts " (1877)— Jellineko " Die
rechtliche Natur der Staatenvertrage " (1880)— Laghi, " Teoria del
trattati internazionali " (1882) — Buonamici, " Deitrattati internazionali "
(1888)— Nippold, "Der volkerrechtliche Vertrag " (1894)— Triepel,
" Volkerrecht und Landesrecht" (1899), pp. 27-90.
Concep- § 491. International treaties are conventions or con-

Treaties, tracts between two or more States concerning various
matters of interest. Even before a Law of Nations in
the modern sense of the term was in existence, treaties
used to be concluded between States. And although
in those times treaties were neither based on nor were
themselves a cause of an International Law, they were
nevertheless considered sacred and binding on account
of religious and moral sentiment. However, since the
manifold intercourse of modern times did not then exist-
between the different States, treaties did not discharge
such all-important functions in the life of humanity as
they do now.
Different § 492. These important functions are manifest if
Treaties, attention is given to the variety of international treaties
which exist nowadays and are day by day concluded for
innumerable purposes. In regard to State property,
640
CHARACTER AND FUNCTION OF TREATIES 541
treaties are concluded of cession, of boundary, and

many others. Alliances, treaties of protection, of
guarantee, of neutrality, and of peace are concluded
for political purposes. Various purposes are served
by consular treaties, commercial l treaties, treaties in
regard to the post, telegraphs, and railways, treaties of
copyright and the like, of jurisdiction, of extradition,
monetary treaties, treaties in regard to measures and
weights, to rates, taxes, and custom-house duties,
treaties on the matter of sanitation with respect to
epidemics, treaties in the interest of industrial labourers,
and treaties with regard to agriculture and industry.
Again, various purposes are served by treaties concern-
ing warfare, mediation, arbitration, and so on.
I do not intend to discuss the question of classi-
fication ofthe different kinds of treaties, for hitherto
all attempts 2 at such classification have failed. But
there is one distinction to be made which is of the
greatest importance and according to which the whole
body of treaties is to be divided into two classes. For
treaties may, on the one hand, be concluded for the
purpose of confirming, defining, or abolishing existing
customary rules, and of establishing new rules for the
Law of Nations. Treaties of this kind ought to be
termed law-making treaties. On the other hand,
treaties may be concluded for all kinds of other pur-
poses. Law-making treaties as a source of rules of
International Law have been discussed above (§ 18) ;
the most important of these treaties will be considered
below (§§ 556-5686).
§ 493. The question as to the reason of the binding Binding
force of international treaties always was, and still is, Treaties.
1 See below, §§ 578-580. Bluntschli, §§ 442-445 ; Martens, I.
2 Since the time of Grotius the §113; Ullmann, § 82; Wheaton,
science of the Law of Nations has § 268 (following Vattel, II. § 169; ;
not ceased attempting a satisfactory Rivier, II. pp. 106-118 ; Westlake, I.
classification of the different kinds p. 283, and many others.
of treaties. See Heffter, §§ 88-91 ;
542 TREATIES
very much disputed. That all those publicists who

deny the legal character of the Law of Nations deny
likewise a legally binding force in international treaties
is obvious. But even among those who acknowledge
the legal character of International Law, unanimity by
no means exists concerning this binding force of treaties.
The question is all the more important as everybody
knows that treaties are sometimes broken, rightly ac-
cording to the opinion of the one party, and wrongly
according to the opinion of the other. Many publicists
find the binding force of treaties in the Law of Nature,
others in religious and moral principles, others * again
in the self-restraint exercised by States in becoming a
party to a treaty. Some writers 2 assert that it is the
contracting parties' own will which gives binding force
to their treaties, and others 3 teach that such binding
force is to be found im Rechtsbewusstsein der Menschheit
—that is, in the idea of right innate in man. I believe
that the question can satisfactorily be dealt with only
by dividing it into several different questions and by
answering those questions seriatim.
First, the question is to be answered why treaties
are legally binding. The answer must categorically be
that this is so because there exists a customary rule of
International Law that treaties are binding.
Then the question might be put as to the cause of
the existence of such customary rule. The answer
must be that such rule is the product of several joint
causes. Religious and moral reasons require such a
rule quite as much as the interest of the States, for no
law could exist between nations if such rule did not
exist. All causes which have been and are still work-
ing to create and maintain an International Law are
at the background of this question.
1 SoHan,§107; Jellinek,"Staaten- 2 So Triepel, "Volkerrecht uml
vertrage," p. 31 ; Nippold, § 11. Landesrecht" (1899),
8 So Bluntschli, p. 82.
§ 410.
PARTIES TO TREATIES 543
And, thirdly, the question might be put how it is

possible to speak of a legally binding force in treaties
without a judicial authority to enforce their stipula-
tions. The answer must be that the binding force of
treaties, although it is a legal force, is not the same as
the binding force of contracts according to Municipal
Law, since International Law is a weaker law, and for
this reason less enforceable, than Municipal Law. But
just as International Law does not lack legal character
in consequence of the fact that there is no central
authority * above the States which could enforce it, so
international treaties are not deficient of a legally
binding force because there is no judicial authority for
the enforcement of their stipulations.
II
PARTIES TO TREATIES
Vattel, II. §§ 154-156, 206-212— Hall, § 108— Westlake, I. p. 279— Phillimore,

II. §§ 48-49— Halleck, I. pp. 275-278— Taylor, §§ 361-365— Wheaton,
§§ 265-267— Moore, V. §§ 734-737— Bluntschli, §§ 403-409— Heffter, §§
84-85— Ullmann, § 75— Bofcfils, No. 818— Despagnet, No. 446— Pradier-
Fodere, II. Nos. 1058-1068— Rivier, II. pp. 45-48— Nys, III. pp. 20-24—
Calvo, III. §§ 1616-1618— Fiore, II. Nos. 984-1000, and Code, Nos. 743-
749— Martens, I. § 104— Nippold, op. cit. pp. 104-112— Schoen in Z.V.
V. (1911), pp. 400-431.
§ 494. The so-called right of making treaties is not The

a right of a State in the technical meaning of the term,
but a mere competence attaching to sovereignty. A Power-
State possesses, therefore, treating-making power only
so far as it is sovereign. Full-Sovereign States may
become parties to treaties of all kinds, being regularly
competent to make treaties on whatever matters they
please. Not-full Sovereign States, however, can be-
come parties to such treaties only according to their
competence to conclude. It is impossible to lay down
„ . 1 See above, § 5.
544 TREATIES
a hard-and-fast rule concerning such competence of

all not-full Sovereign States. Everything depends
upon the special case. Thus, the constitutions of
Federal States comprise provisions with regard to the
competence, if any, of the member-States to conclude
international treaties among themselves as well as with
foreign States.1 Thus, again, it depends upon the
special relation between the suzerain and the vassal
how far the latter possesses the competence to enter
into treaties with foreign States ; ordinarily a vassal
can conclude treaties concerning such matters as rail-
ways, extradition, commerce, and the like.
Treaty- § 495. The treaty-making power of all States is
Powerg exercised by their heads, either personally or through
bX6Heads rePresenâtives appointed by these heads. The Holy
of states. Alliance of Paris, 1815, was personally concluded by
the Emperors of Austria and Russia and the King of
Prussia. And when, on June 24, 1859, the Austrian
army was defeated at Solferino, the Emperors of Austria
and France met on July 11, 1859, at Villafranca and
agreed in person on preliminaries of peace. Yet, as a
rule, heads of States do not act in person, but authorise
representatives to act for them. Such representa-
tives receive a written commission, known as powers
or full powers, which authorises them to negotiate in the
name of the respective heads of States. They also
receive oral or written, open or secret instructions.
But, as a rule, they do not conclude a treaty finally,
for all treaties concluded by such representatives are
1 According to articles 7 and 9 of petent to conclude treaties con-
the Constitution of Switzerland the cerning all such matters as do not,
Swiss member-States are competent in conformity with article 4 of the
to conclude non-political treaties Constitution, belong to the com-
among themselves, and, further, such petence of the Empire. On the other
treaties with foreign States as con- hand, according to article 1, section
cern matters of police, of local 10, of the Constitution of the United
traffic, and of State economics. States of America, the member-
According to article 11 of the States are incompetent either to
Constitution of the German Empire, conclude treaties among themselves
the German member-States are com- or with foreign States.
in principle not valid before ratification.1 If they

conclude a treaty by exceeding their powers or acting
contrary to their instructions, the treaty is not a real
treaty and not binding upon the State they represent.
A treaty of such a kind is called a sponsio or sponsiones.
Sponsiones may become a real treaty and binding
upon the State through the latter's approval. Now-
adays, however, the difference between real treaties
and sponsiones is less important than in former times,
when the custom in favour of the necessity of ratifica-
tion for the validity of treaties was not yet general.
If nowadays representatives exceed their powers, their
States can simply refuse ratification of the sponsio.
§ 496. For some , • non-political
- , . purposes
. of minor Minor
. T Function-
importance, certain minor functionaries are recognised aries
as competent to exercise the treaty-making power of Treaty-1Dg
their States. Such functionaries are ipso facto by their
offices and duties competent to enter into certain agree-
ments without the requirement of ratification. Thus,
for instance, in time of war, military and naval officers
in command 2 can enter into agreements concerning
a suspension of arms, the surrender of a fortress, the
exchange of prisoners, and the like. But it must be
emphasised that treaties of this kind are valid only
when these functionaries have not exceeded their
powers.
§ 497. Although the heads of States are regularly, Con-
according to the Law of Nations, the organs that exer- Restrfo-
cise the treaty-making power of the States, constitu- tlons>
tional restrictions imposed upon the heads concerning
the exercise of this power are nevertheless of import-
ance for the Law of Nations. Such treaties concluded
by heads of States or representatives authorised by these
heads as violate constitutional restrictions are not real
treaties and do not bind the State concerned, because
1 See below, § 510. 2 See Grotius, III. c. 22.
VOL. I. 2M
546 TREATIES
the representatives have exceeded their powers in con-

cluding the treaties.1 Such constitutional restrictions,
although they are not of great importance in Great
Britain,2 play a prominent part in the Constitutions
of most countries. Thus, according to article 8 of the
French Constitution, the President exercises the treaty-
making power ; but peace treaties and such other
treaties as concern commerce, finance, and some other
matters, are not valid without the co-operation of the
French Parliament. Thus, further, according to articles
1, 4, and 11 of the Constitution of the German Empire,
the Emperor exercises the treaty-making power ; but
such treaties as concern the frontier, commerce, and
several other matters, are not valid without the co-
operation ofthe Bundesrath and the Keichstag. Again,
according to article 2, section 2, of the Constitution of
the United States, the President can only ratify
treaties with the consent of the Senate.
Mutual § 498. A treaty being a convention, mutual consent
thTcon-0 of the parties is necessary. Mere proposals made by
Parties? one Party and n°t accepted by the other are, therefore,
not binding upon the proposer. Without force are
also pollicitations which contain mere promises without
acceptance by the party to whom they were made.
Not binding are, lastly, so-called punctationes, mere
negotiations on the items of a future treaty, without
the parties entering into an obligation to conclude
that treaty. But such punctationes must not be con-
founded either with a preliminary treaty or with a so-
called pactum de contrahendo. A preliminary treaty
requires the mutual consent of the parties with regard
to certain important points, whereas other points have
to be settled by the definitive treaty to be concluded
later. Such preliminary treaty is a real treaty and
1 The whole matter is discussed 2 See Anson, " The Law and
with great lucidity by Nippold, op. cit. Custom of the Constitution," II.
pp. 127-164 ; see also Schoen, loc. cit. (2nd ed.), pp. 297-300.
therefore binding upon the parties. A pactum de con-

trahendo requires likewise the mutual consent of the
parties. It is an agreement upon certain points to be
incorporated in a future treaty, and is binding upon
the parties. The difference between punctationes and
a pactum de contrahendo is, that the latter stipulates
an obligation of the parties to settle the respective
points by a treaty, whereas the former does not.
§ 499. As a treaty will lack binding force without Freedom
real consent, absolute freedom of action on the part
of the contracting parties is required. It must, how-
ever, be understood that circumstances of urgent dis-
tress, such as either defeat in war or the menace of a
strong State to a weak State, are, according to the
rules of International Law, not regarded as excluding
the freedom of action of a party consenting to the
terms of a treaty. The phrase " freedom of action "
applies only to the representatives of the contracting
States. It is their freedom of action in consenting to
a treaty which must not have been interfered with and
which must not have been excluded by other causes.
A treaty concluded through intimidation exercised
against the representatives of either party or con-
cluded by intoxicated or insane representatives is not
binding upon the party so represented. But a State
which was forced by circumstances to conclude a treaty
containing humiliating terms has no right afterwards
to shake off the obligations of such treaty on the ground
that its freedom of action was interfered with at the
time.1 This must be emphasised, because in practice
such cases of repudiation have frequently occurred.
A State may, of course, hold itself justified by political
necessity in shaking off such obligations, but this does
not alter the fact that such action is a breach of law.
§ 500. Although a treaty was concluded with the Delusion
and Error
1 See examples in Moore, V. § 742. in Con-
548 TREATIES
tracting real ...consent

Parties. .-, of the parties,
. it is
. nevertheless not
, hind-
,
ing it the consent was given in error, or under a de-
lusion produced by a fraud of the other contracting
party. If, for instance, a boundary treaty were based
upon an incorrect map or a map fraudulently altered
by one of the parties, such treaty would by no means
be binding. Although there is freedom of action in
such cases, consent has been given under circumstances
which prevent the treaty from being binding.
Ill
OBJECTS OF TREATIES
Vattel, II. §§ 160-162, 166— Hall, § 108— Phillimore, II. § 51— Walker, § 30—
Bluntschli, §§ 410-416— Heffter, § 83— Ullmann, § 97— Bonfils, No. 819—
Despagnet, No. 445— Pradier-Fode"re, II. Nos. 1080-1083— Me"rignhac,
II. p. 640— Rivier, II. pp. 57-63— Nys, III. p. 24— Fiore, II. Nos. 1001-
1004, and Code, Nos. 755-758— Martens, I. § 110— Jellinek, "Die
rechtliche Natur der Staatenvertrage " (1880), pp. 59-60— Nippold, op. cit.
pp. 181-190.
Objects in § 501. The object of treaties is always an obligation,
.0* whether mutual between all the parties or unilateral
on the part of one only. Speaking generally, the object
of treaties can be an obligation concerning any matter
of interest for States. Since there exists no other law
than International Law for the intercourse of States
with each other, every agreement between them re-
garding any obligation whatever is a treaty. However,
the Law of Nations prohibits some obligations from
becoming objects of treaties, so that such treaties as
comprise obligations of this kind are from the very
beginning null and void.1
§ 502. Obligations to be performed by a State other
contract- ^nan a contracting party cannot be the object of a
ingParties
only can 1 The voidance ab origine of these valid in their inception, but become
be Object, treaties must not be confounded afterwards void on some ground or
with voidance of such treaties as are other ; see below, §§ 541-544.
OBJECTS OF TREATIES 549
treaty. A treaty stipulating such an obligation would

be null and void. But this must not be confounded with
the obligation undertaken by one of the contracting
States to exercise an influence upon another State to
perform certain acts. The object of a treaty with such
a stipulation is an obligation of one of the contracting
States, and the treaty is therefore valid and binding.
§ 503. Such obligation as is inconsistent with obliga- An obii-
tions under treaties previously concluded by one State fonSstent
with another cannot be the object of a treaty with a ^ °ther
third State. Thus, in 1878, when after the war Eussia tions can-
and Turkey concluded the preliminary Treaty of Peace object.
of San Stefano, which was inconsistent with the Treaty
of Paris of 1856 and the Convention of London of 1871,
England protested,1 and the Powers met at the Con-
gress of Berlin to arrange matters by mutual consent.
§ 504. An obligation to perform a physical impossi- object
bility 2 cannot be the object of a treaty. If perchance ^sicaiiy
a State entered into a convention stipulating an obli- possible,
gation of that kind, no right to claim damages for non-
fulfilment of the obligation would arise for the other
party, such treaty being legally null and void.
§ 505. It is a customarily recognised rule of the Law immoral
of Nations that immoral obligations cannot be the
object of an international treaty. Thus, an alliance for
the purpose of attacking a third State without provoca-
tion is from the beginning not binding. It cannot be
denied that in the past many treaties stipulating im-
moral obligations have been concluded and executed,
but this does not alter the fact that such treaties were
legally not binding upon the contracting parties. It
must, however, be taken into consideration that the
question as to what is immoral is often controversial.
An obligation which is considered immoral by other
1 See Martens, N.R.G. 2nd Ser. 2 See below, § 542.
III. p. 257.
550 TREATIES
States may not necessarily appear immoral to the

contracting parties, and there is no Court that can
decide the controversy.
illegal § 506. It is a unanimously recognised customary
Sonsga rule of International Law that obligations which are
at variance with universally recognised principles of
International Law cannot be the object of a treaty.
If, for instance, a State entered into a convention with
another State not to interfere in case the latter should
appropriate a certain part of the Open Sea, or should
command its vessels to commit piratical acts on the
Open Sea, such treaty would be null and void, because
it is a principle of International Law that no part of
the Open Sea can be appropriated, and that it is the
duty of every State to interdict to its vessels the com-
mission ofpiracy on the High Seas.
IV
FORM AND PARTS OF TREATIES
Grotius, II. c. 15, § 5— Vattel, II. § 153— Hall, § 109— Westlake,- 1. pp. 279-
281— Wheaton, § 253— Moore, V. § 740— Bluntschli, §§ 417-427—
Hartmann, §§ 46-47— Heffter, §§ 87-91— Ullmann, § 80— Bonfils, Nos.
821-823— Pradier-Fodere, II. Nos. 1084-1099— M6rignhac, II. p. 645—
Bivier, II. pp. 64-68— Nys, III. pp. 25-28— Fiore, II. Nos. 1004-1006, and
Code, Nos. 759-763— Martens, I. § 112— Jellinek, " Die rechtliche Natur
der Staatenvertrage " (1880), p. 56— Nippold, op. cit. pp. 178-181.
Noneces- § 507. The Law of Nations includes no rule which
saryForm prescribes a necessary form of treaties. A treaty is,
Treaties, therefore, concluded as soon as the mutual consent
of the parties becomes clearly apparent. Such consent
must always be given expressly, for a treaty cannot
be concluded by tacit consent. But it matters not
whether an agreement is made in writing, orally, or
by symbols. Thus, in time of war, the exhibition of
a white flag symbolises the proposal of an agreement
as to a brief truce for the purpose of certain negotia-
FORM AND PARTS OF TREATIES 551
tions, and the acceptance of the proposal on the

part of the other side by the exhibition of a similar
symbol establishes a convention as binding as any
written treaty. Thus, too, history tells of an oral treaty
of alliance, secured by an oath, concluded in 1697 at
Pillau between Peter the Great of Russia and Frederick
III., Elector of Brandenburg.1 Again, treaties are
sometimes concluded through an exchange of diplomatic
notes between the Secretaries for Foreign Affairs
of two States or through the exchange of personal
letters between the heads of two States. However, as
a matter of reason, treaties usually take the form of
a written 2 document signed by duly authorised repre-
sentatives ofthe contracting parties.
.§508. International compacts . Aots,Con-
which take the form of ventions,
written contracts, are, besides Agreements or Ireaties, Deciara-
sometimes termed Acts,
times Declarations. But sometimes
there is no Conventions, some- tj
essential difference
between them, and their binding force upon the contract-
ing parties is the same whatever be their name. The
Geneva Convention, the Declarations of Paris and of
London, and the Final Act of the Vienna Congress are
as binding as any agreement which goes under the name
of "Treaty" or "Convention." The attempt3 to
distinguish fundamentally between a " Declaration "
and a " Convention " by maintaining that whereas a
" Convention " creates rules of particular International
Law between the contracting States only, a " Declara-
tion " contains the recognition, on the part of the best
qualified and most interested Powers, of rules of uni-
1 See Martens, I. § 112. either orally or through symbols
2 The only writer who nowadays proves that the written form is not
insists upon a written agreement for absolutely necessary.
a treaty to be valid is, as far as I 3 On the part of the British
know, Bulmerincq (§ 56). But Foreign Office, see Parliamentary
although all important treaties are Papers, Miscellaneous, No. 5 (1909),
naturally concluded in writing, the Cd. 4555, Proceedings of the Inter-
example of the agreements concluded national Naval Conference held in
between armed forces in time of war London, December 1908-1909, p. 57.
552 TREATIES
versal International Law, does not stand the test of

scientific criticism. A " Declaration " is nothing else
but the title of a law-making treaty according to which
the parties engage themselves to pursue in future a
certain line of conduct.1 But such law-making treaties
are quite as frequently styled " Conventions " as
" Declarations." The best example is the Hague
" Convention " concerning the laws and usages of war,
which is based upon the unratified " Declaration "
concerning the laws and customs of war produced by
the Brussels Conference of 1874.
parts of § 509. Since International Law lays down no rules
Treaties, concerning the form of treaties, there exist no rules
concerning the arrangement of the parts of written
treaties. But the following order is usually observed.
A first part, the so-called preamble) comprises the names
of the heads of the contracting States, of their duly
authorised representatives, and the motives for the
conclusion of the treaty. A second part consists of the
primary stipulations in numbered articles. A third
part consists of miscellaneous stipulations concerning
the duration of the treaty, its ratification, the accession
of third Powers, and the like. The last part comprises
the signatures of the representatives. But this order
is by no means necessary. Sometimes, for instance,
the treaty itself does not contain the very stipulations
upon which the contracting parties have agreed, such
stipulations being placed in an annex to the treaty.
It may also happen that a treaty contains secret stipu-
lations inan additional part, which are not made public
with the bulk of the stipulations.2
12 See
The above,
matter§ 487.
is treated with all details
1086-1096.by Pradier-Fodere", II. §§
RATIFICATION OF TREATIES 553
RATIFICATION OF TREATIES
Grotius, II. c. 11, § 12— Pufendorf, III. c. 9, § 2— Vattel, II.' § 156— Hall,
§ 110— Westlake, I. pp. 279-280— Lawrence, § 132— Phillimore, II. § 52—
Twiss, I. § 214— Halleck, I. pp. 276-277— Taylor, §§ 364-367— Moore, V.
§§ 743-756— Walker, § 30— Wharton, II. §§ 131-131A— Wheaton, §§ 256-
263— Bluntschli, §§ 420-421— Heffter, § 87— Gessner in Holtzendorff,
III. pp. 15-18— Ullmann, § 78— Bonfils, Nos. 824-831— Pradier-Fode're',
II. Nos. 1100-1119— Merignhac, II. pp. 652-666— Nys, III. pp. 28-36—
Rivier, II. § 50— Calvo, III. §§ 1627-1636— Fiore, II. No. 994, and Code,
No. 750— Martens, I. §§ 105-108— Wicquefort, " L'Ambassadeur et ses
fonctions" (1680), II. Section XV. — Jellinek, "Die rechtliche Natur
der Staatenvertrage " (1880), pp. 53-56— Nippold, op. cit. pp. 123-125—
Wegraann, "Die Ratifikation von Staatsvertragen " (1892).
§ 510. Katification is the term for the final confirma-
tion given by the parties to an international treaty Function
concluded by their representatives. Although a treaty
is concluded as soon as the mutual consent is manifest
from acts of the duly authorised representatives, its
binding force is as a rule suspended till ratification is
given. The function of ratification is, therefore, to
make the treaty binding, and, if it is refused, the treaty
falls to the ground in consequence. As long as ratifica-
tion isnot given, the treaty is, although concluded, not
perfect. Many writers * maintain that, as a treaty is
not binding without ratification, it is the latter which
really contains the mutual consent and really concludes
the treaty. Before ratification, they maintain, there is
no treaty concluded, but a mere mutual proposal agreed
to to conclude a treaty. But this opinion does not
accord with the real facts.2 For the representatives
are authorised and intend to conclude a treaty by their
signatures. The contracting States have always taken
the standpoint that a treaty is concluded as soon as
their mutual consent is clearly apparent. They have
always made a distinction between their consent given
by representatives and their ratification to be given
1 See, for instance, Ullmann, § 78 ; 2 The matter is very ably dis-
Jellinek, p. 55 ; Nippold, p. 123 ; cussed by Rivier, II. pp 74-76.
Wegmann, p. 11.
554 TREATIES
afterwards, they have never dreamt of confounding

the two and considering their ratification their consent.
It is for that reason that a treaty cannot be ratified in
part, that no alterations of the treaty are possible
through the act of ratification, that a treaty may be
tacitly ratified by its execution, that a treaty always
is dated from the day when it was duly signed by the
representatives and not from the day of its ratifica-
tion, that there is no essential difference between such
treaties as want and such as do not want ratification.
Rationale § 511. The rationale for the institution of ratifica-
institution is another argument for the contention that the
RaTifica conclusi°n of the treaty by the representatives is to be
tion. £ distinguished from the confirmation given by the
respective States through ratification. The reason is
that States want to have an opportunity of re-examin-
ing not the single stipulations, but the whole effect of
the treaty upon their interests. These interests may
be of various kinds. They may undergo a change
immediately after the signing of the treaty by the
representatives. They may appear to public opinion
in a different light from that in which they appear to
the Governments, so that the latter want to reconsider
the matter. Another reason is that treaties on many
important matters are, according to the Constitutional
Law of most States, not valid without some kind of
consent of Parliaments. Governments must therefore
have an opportunity of withdrawing from a treaty in
case Parliaments refuse their recognition. These two
reasons have made, and still make, the institution of
ratification a necessity for International Law.
Ratifica- § 512. But ratification, although necessary in prin-
ciple, is not always essential. Although it is now a
universa% recognised customary rule of International
necessary. Law that treaties are regularly in need of ratification,
even if the latter was not expressly stipulated, there
are exceptions to the rule. For treaties concluded by

such State functionaries 1 as have within certain narrow
limits, ipso facto by their office, the power to exercise
the treaty-making competence of their State do not
want ratification, but are binding at once when they
are concluded, provided the respective functionaries
have not exceeded their powers. Further, treaties
concluded by heads of States in person do not want
ratification provided that they do not concern matters
in regard to which constitutional restrictions 2 are
imposed upon heads of States. And, lastly, it may
happen that the contracting parties stipulate expressly,
for the sake of a speedy execution of a treaty, that it
shall be binding at once without ratifications being
necessary. Thus, the Treaty of London of July 15,
1840, between Great Britain, Austria, Russia, Prussia,
and Turkey concerning the pacification of the Turko-
Egyptian conflict was accompanied by a secret pro-
tocol,3 signed by the representatives of the parties,
according to which the treaty was at once, without
being ratified, to be executed. For the Powers were,
on account of the victories of Mehemet Ali, very anxious
to settle the conflict as quickly as possible. But it
must be emphasised that renunciation of ratification
is valid only if given by representatives duly authorised
to make such renunciation. If the representatives
have not received a special authorisation to dispense
with ratification, then renunciation is not binding upon
the States which they represent.
§ 513. No rule of International Law prescribes the Length of
length of time within which ratification must be given
or refused. If such length of time is not specially stipu- tlon-
lated by the contracting parties in the very treaty, a
reasonable length of time must be presumed as mutually
1 See above, § 496. 3 See Martens, N.R.G. I. p. 163.
556 TREATIES
granted. Without doubt, a refusal to ratify must be

presumed from the lapse of an unreasonable time without
ratification having been made. In most cases, however,
treaties which are in need of ratification contain now-
adays a clause stipulating the reservation of ratification,
and at the same time a length of time within which
ratification should take place.
Refusal of § 514. The question now requires attention whether
tion.fica~ ratification can be refused on just grounds only or
according to discretion. Formerly * it was maintained
that ratification could not be refused in case the repre-
sentatives had not exceeded their powers or violated
their secret instructions. But nowadays there is prob-
ably no publicist who maintains that a State is in any
case legally2 bound not to refuse ratification. Yet
many insist that a State is, except for just reasons, in
principle morally bound not to refuse ratification. I
cannot see, however, the value of such a moral in contra-
distinction toa legal duty. The fact upon which every-
body agrees is that International Law does in no case
impose a duty of ratification upon a contracting party.
A State refusing ratification will always have reasons
for such line of action which appear just to itself,
although they may be unjust in the eyes of others. In
practice, ratification is given or withheld at discretion.
But in the majority of cases, of course, ratification is
not refused. A State which often and apparently
wantonly refused ratification of treaties would lose all
credit in international negotiations and would soon feel
the consequences. On the other hand, it is impossible
1 See Grotius, II. c. 11, § 12 ; ratification can not regularly be re-
Bynkershoek, " Quaestiones juris fused. The hair-splitting scholasti-
publici," II. 7 ; Wicquefort, " L'Am- cism of this writer is illustrated by a
bassadeur,"IL 15; Vattel, II. § 156 ; comparison between his customary
G. F. von Martens, § 48. rule for the non-refusal of ratification
* This must be maintained in spite as arbitrarily constructed by himself,
of Wegmann's (p. 32) assertion that and the opinion which he (p. 11)
a customary rule of the Law of emphatically defends that a treaty is
Nations has to be recognised that concluded only by ratification.
to lay down hard-and-fast rules respecting just and

unjust causes of refusal of ratification. The interests
at stake are so various, and the circumstances which
must influence a State are so imponderable, that it must
be left to the discretion of every State to decide the
question for itself. Numerous examples of important
treaties which have not found ratification can be given.
It suffices to mention the Hay-Pauncefote Treaty be-
tween the United States and Great Britain regarding
the proposed Nicaragua Canal, signed on February 5,
1900, which was ratified with modifications by the
Senate of the United States, this being equivalent to
refusal of ratification. (See below, § 517.)
§ 515. No rule of International Law exists which Form of
prescribes a necessary form of ratification. Ratifica- tion.
tion can therefore be given as well tacitly as expressly.
Tacit ratification takes place when a State begins the
execution of a treaty without expressly ratifying it.
Further, ratification may be given orally or in writing,
although I am not aware of any case in which ratifica-
tion was given orally. For it is usual for ratification
to take the form of a document duly signed by the
heads of the States concerned and their Secretaries
for Foreign Affairs. It is usual to draft as many docu-
ments as there are parties to the convention, and to
exchange these documents between the parties. Some-
times the whole of the treaty is recited verbatim in the
ratifying documents, but sometimes only the title,
preamble, and date of the treaty, and the names of the
signatory representatives are cited. As ratification is
the necessary confirmation only of an already existing
treaty, the essential requirement in a ratifying docu-
ment is merely that it refer clearly and unmistakably
to the treaty to be ratified. The citation of title, pre-
amble, date, and names of the representatives is, there-
fore, quite sufficient to satisfy that requirement, and I
558 TREATIES
cannot agree with those writers who maintain that the

whole of the treaty ought to be recited verbatim.
Ratifica- § 516. Ratification is effected by those organs which
whom7 exercise the treaty-making power of the States. These
effected. organs are regularly the heads of the States, but they
can, according to the Municipal Law of some States,
delegate the power of ratification for some parts of the
globe to other representatives. Thus, the Viceroy of India
is empowered to ratify treaties with certain Asiatic mon-
archs in the name of the King of Great Britain and
Emperor of India, and the Governor-General of Turkes-
tan has a similar power for the Emperor of Russia.
In case the head of a State ratifies a treaty, although
the necessary constitutional requirements have not
been previously fulfilled, as, for instance, in the case
in which a treaty has not received the necessary ap-
proval from the Parliament of the said State, the ques-
tion arises whether such ratification is valid or null
and void. Many writers l maintain that such ratifica-
tion is nevertheless valid. But this opinion is not
correct, because it is clearly evident that in such a
case the head of the State has exceeded his powers,
and that, therefore, the State concerned cannot be held
to be bound by the treaty.2 The conflict between the
United States and France in 1831, frequently quoted in
support of the opinion that such ratification is valid,
is not in point. It is true that the United States in-
sisted on payment of the indemnity stipulated by a
treaty which had been ratified by the King of France
without having received the necessary approval of the
French Parliament, but the United States did not
maintain that the ratification was valid ; she insisted
upon payment because the French Government had
admitted that such indemnity was due to her.3
1 See, for instance, Martens, § 107, * See above, § 497, and Nippold,
and Eivier, II. p. 85. p. 147.
3 See Wharton, II. § 13U, p. 20.
§ 517. It follows from the nature of ratification Ra tinea,

as a necessary confirmation of a treaty already con- noTbeT11
eluded that ..,
ratification must
.,
be.« either
.
given
, .
or refused, paâi
and con-
no conditional or partial ratification being possible, ditionai.
That occasionally a State tries to modify a treaty in
ratifying it cannot be denied, yet conditional ratifica-
tion is no ratification at all, but equivalent to refusal
of ratification. Nothing, of course, prevents the other
contracting party from entering into fresh negotiations
in regard to such modifications ; but it must be empha-
sised that such negotiations are negotiations for a new
treaty,1 the old treaty having become null and void
through its conditional ratification. On the other
hand, no obligation exists for such party to enter into
fresh negotiations, it being a fact that conditional
ratification is identical with refusal of ratification,
whereby the treaty falls to the ground. Thus, for
instance, when the United States Senate on December
20, 1900, in consenting 2 to the ratification of the Hay-
Pauncefote Treaty as regards the Nicaragua Canal,
added modifying amendments, Great Britain did not
accept the amendments and considered the treaty
fallen to the ground.
Quite particular is the case of a treaty to which a
greater number of States are parties and which is only
partially ratified by one of the contracting parties.
Thus France, in ratifying the General Act of the Brussels
1 This is the correct explanation dent, and not the Senate, who
of the practice on the part of States, possesses the power of granting or
which sometimes prevails, of ac- refusing ratification ; see Willoughby,
quiescing, after some hesitation, in " The Constitutional Law of the
alterations proposed by a party to a United States " (1910), I. p. 462, note
treaty in ratifying it ; see examples 14. The President, however, accord-
in Pradier-Fode're', II. No. 1104, and ing to article 2 of the Constitution,
Calvo, III. § 1630. cannot grant ratification without the
3 It is of importance to emphasise consent of the Senate, and the proposal
that the United States' Senate, in of an amendment to a treaty on the
proposing an amendment to a treaty part of the Senate, therefore, corn-
before its ratification, does not, prises, indirectly, the proposal of a
strictly speaking, ratify such treaty new treaty,
conditionally, since it is the Presi-
560 TREATIES
Anti-Slavery Conference of July 2, 1890, excepted from

ratification articles 21 to 23 and 42 to 61, and the Powers
have acquiesced in this partial ratification, so that France
is not bound by these twenty-three articles.1
But it must be emphasised that ratification is only
then partial and conditional if one or more stipulations
of the treaty which has been signed without reservation
are exempted from ratification, or if an amending clause
is added to the treaty during the process of ratification.
It is therefore quite legitimate for a party who has
signed a treaty with certain reservations as regards
certain articles 2 to ratify the approved articles only,
and it would be incorrect to speak in this case of a
partial ratification.
Again, it is quite legitimate — and one ought not in
that case to speak of conditional ratification — for a
contracting party who wants to secure the interpreta-
tion of certain terms and clauses of a treaty to grant
ratification with the understanding only that such terms
and clauses should be interpreted in such and such a
way. Thus when, in 1911, opposition arose in Great
Britain to the ratification of the Declaration of London
on account of the fact that the meaning of certain terms
was ambiguous and that the wording of certain clauses
did not agree with the interpretation given to them by
the Report of the Drafting Committee, the British
Government declared that they would only ratify with
the understanding that the interpretation contained in
the Report should be considered as binding and that
the ambiguous terms concerned should have a deter-
minate meaning. In such cases ratification does not
introduce an amendment or an alteration, but only
fixes the meaning of otherwise doubtful terms and
clauses of the treaty.
1 See Martens, N.R.G. 2nd Ser. 2 See below, § 519.
XXII. (1897), p. 260.
EFFECT OF TEEATIES 561
§ 518. The effect of ratification is the binding force Effect of

of the treaty. But the question arises whether the tion. Ratifica-
effect of ratification is retroactive, so that a treaty
appears to be binding from the date when it is duly
signed by the representatives. No unanimity exists
among publicists as regards this question. As in all
important cases treaties themselves stipulate the date
from which they are to take effect, the question is
chiefly of theoretical interest. The fact that ratifica-
tion imparts the binding force to a treaty seems to indi-
cate that ratification has regularly no retroactive effect.
Different, however, is of course the case in which the
contrary is expressly stipulated in the very treaty, and,
again, the case when a treaty contains such stipulations
as shall at once be executed, without waiting for the
necessary ratification. Be this as it may, ratification
makes a treaty binding only if the original consent was
not given in error or under a delusion.1 If, however,
the ratifying State discovers such error or delusion and
ratifies the treaty nevertheless, such ratification makes
the treaty binding. And the same is valid as regards
a ratification given to a treaty although the ratifying
State knows that its representatives have exceeded
their powers by concluding the treaty.
VI
EFFECT OF TREATIES
Hall, § 114— Lawrence, § 134— Halleck, I. pp. 279-281— Taylor, §§ 370-373—

Wharton, II. § 137— Wheaton, § 266— Bluntschli, §§ 415-416— Hartmann,
§ 49— Heffter, § 94— Bonfils, Nos. 845-848— Despagnet, Nos. 447-448—
Pradier-Fodere, II. Nos. 1151-1155— Merignhac, II. pp. 667-672—
Rivier, II. pp. 119-122— Calvo, III. §§ 1643-1648— Fiore, II. Nos. 1008-
1009, and Code, Nos. 768-778— Martens, I. §§ 65 and 114— Nippold, op. cit.
pp. 151-160.
§ 519. By a treaty the contracting parties in the first Effect of
place are concerned. The effect of the treaty upon
them is that they are bound by its stipulations, and that
VOL. I. 2N
562 TREATIES
they must execute it in all its parts. No distinction

should be made between more and less important parts
of a treaty as regards its execution. Whatever may be
the importance or the insignificance of a part of a treaty,
it must be executed with good faith, for the binding
force of a treaty covers equally all its parts and stipu-
lations. If,however, a party to a treaty concluded
between more than two parties signs it with a reserva-
tion as regards certain articles, such party is not bound
by these articles, although it ratifies 1 the treaty.
Effect of § 520. It must be specially observed that the binding
f°rce °f a treaty concerns the contracting States only,
and not their subjects. As International Law is a law
Parties, between States only and exclusively, treaties can have
effect upon States and can bind States only and ex-
clusively. Iftreaties contain stipulations with regard
to rights and duties of the contracting States' subjects,2
courts, officials, and the like, these States have to take
such steps as are necessary, according to their Muni-
cipal Law, to make these stipulations binding upon
their subjects, courts, officials, and the like. It may
be that according to the Municipal Laws of some coun-
tries the official publication of a treaty concluded by
the Government is sufficient for this purpose, but in
other countries other steps are necessary, such as,
for example, special statutes to be passed by the re-
spective Parliaments.3
Effect of § 521. As treaties are binding upon the contracting
changes gtategj changes in the government or even in the form
vemment of government of one of the parties can as a rule have
Treaties, no influence whatever upon the binding force of treaties.
Thus, for instance, a treaty of alliance concluded by a
State with constitutional government remains valid,
1 See above, § 518. basis from which the question must
2 See above, § 289. be decided whether international
8 The distinction between Inter- treaties have a direct effect upon the
national and Municipal Law as officials and subjects of the con-
discussed above, §§ 20-25, is the tracting parties.
EFFECT OF TREATIES 563
although the Ministry may change. And no head of

a State can shirk the obligations of a treaty concluded
by his State under the government of his predecessor.
Even when a monarchy turns into a republic, or vice
versa, treaty obligations regularly remain the same.
For all such changes and alterations, important as they
may be, do not alter the person of the State which
concluded the treaty. If, however, a treaty stipulation
essentially presupposes a certain form of government,
then a change from such form makes such stipulation
void, because its execution has become impossible.1
§ 522. According to the principle pacta tertiis nee Effect of
nocent nee prosunt, a treaty concerns the contracting £™*tles
States only ; neither rights nor duties, as a rule, arise *hlrd
under a treaty for third States which are not parties to
the treaty. But sometimes treaties have indeed an effect
upon third States. Such an effect is always produced
when a treaty touches previous treaty rights of third
States. Thus, for instance, a commercial treaty con-
ceding more favourable conditions than hitherto have
been conceded by the parties thereto has an effect upon
all such third States as have previously concluded com-
mercial treaties containing the so-called most-favoured-
nation clause 2 with one of the contracting parties.
The question arises whether in exceptional cases
third States can acquire rights under such treaties as
were specially concluded for the purpose of creating
such rights not only for the contracting parties but also
for third States. Thus, the Hay-Pauncefote Treaty
between Great Britain and the United States of 1901,
1 See below, § 542. Not to be and the like. This is a case of

confounded with the effect of changes succession of States which has been
in government is the effect of a discussed above, §§ 82-84 ; see also
change in international status upon below, § 548.
treaties, as, for instance, if a hitherto 2 See below, § 580, but note the
full-sovereign State becomes half- or American interpretation of this
part-Sovereign, or vice versa, or if a clause.
State merges entirely into another,
564 TREATIES
and the Hay-Varilla Treaty between the United States

and Panama of 1903, stipulate that the Panama Canal
to be built shall be open to vessels of commerce and of
war of all nations, although Great Britain, the United
States, and Panama only are parties.1 Thus, further,
article 5 of the Boundary Treaty of Buenos Ayres of
September 15, 1881, stipulates that the Straits of
Magellan shall be open to vessels of all nations, although
Argentina and Chili only are parties. Again, the Treaty
of Paris, signed on March 30, 1856, and annexed to the
Peace Treaty of Paris of 1856, stipulates that Russia
shall not fortify the Aland 2 Islands ; although this
stipulation was made in the interest of Sweden, only
Great Britain, France, and Russia are parties. I be-
lieve that the question must be answered in the nega-
tive, and nothing prevents the contracting parties from
altering such a treaty without the consent of third States,
provided the latter have not in the meantime acquired
such rights through the unanimous tacit consent of all
concerned.
It must be emphasised that a treaty between two
States can never invalidate a stipulation previously
created by a treaty between one of the contracting
parties and a third State, unless the latter expressly
consents. If, for instance, two States have entered
into an alliance and one of them afterwards concludes a
treaty with a third State, according to which all con-
flicts without exception shall be settled by arbitration,
the previous treaty of alliance remains valid even in
the case of war breaking out between the third State
and the other party to the alliance.3 Therefore, when
in 1911 Great Britain contemplated entering, with the
United States of America, into a treaty of general
arbitration according to which all differences should
a See above, § 205, p. 277, note 2.
SECURING PERFORMANCE OP TREATIES 565
be decided by arbitration, she notified Japan of her

intention, on account of the existing treaty of alliance,
and Japan consented to substitute for the old treaty
a new treaty of alliance,1 article 4 of which stipu-
lates that the alliance shall never concern a war with
a third Power with whom one of the allies may have
concluded a treaty of general arbitration.
VII
MEANS OF SECURING PERFORMANCE OF TREATIES
Vattel, II. §§ 235-261— Hall, § 115— Lawrence, § 134— Phillimore, II. §§ 54-63A
— Bluntschli, §§ 425-441— Heffter, §§ 96-99— Geffcken in Holtzendorff,
III. pp. 85-90— Ullmann, § 83— Bonfils, Nos. 838-844— Despagnet, Nos.
451-452— Pradier-Fodere, II. Nos. 1156-1169— Rivier, II. pp. 94-97—
Nys, III. pp. 36-41— Calvo, III. §§ 1638-1642— Fiore, II. Nos. 1018-1019,
and Code, Nos. 784-791— Martens, I. § 115— Nippold, op. cit. pp. 212-227.
§ 523. As there is no international institution which what

could enforce the performance of treaties, and as history ISvT
teaches that treaties have frequently been broken, inuse
various means of securing performance of treaties have
been made use of. The more important of these means
are oaths, hostages, pledges, occupation of territory,
guarantee. Nowadays these means, which are for the
most part obsolete, have no longer great importance
on account of the gratifying fact that all States are
now much more conscientious and faithful as regards
their treaty obligations than in former times.
§ 524. Oaths are a very old means of securing the oaths,
performance of treaties, which was constantly made use
of not only in antiquity and the Middle Ages, but also
in modern times. For in the sixteenth and seventeenth
centuries all important treaties were still secured by
oaths. During the eighteenth century, however, the
custom of securing treaties by oaths gradually died out,
566 TREATIES
the last example being the treaty of alliance between

France and Switzerland in 1777, which was solemnly con-
firmed bythe oaths of both parties in the Cathedral at
Solothurn. The employment of oaths for securing treaties
was of great value in the times of absolutism, when little
difference used to be made between the State and its
monarch. The more the distinction grew into existence
between the State as the subject of International Law
on the one hand, and the monarch as the temporary
chief organ of the State on the other hand, the more
such oaths fell into disuse. For an oath can exercise
its force on the individual only who takes it, and not
on the State for which it is taken.
Hostages. § 525. Hostages are as old a means of securing
treaties as oaths, but they have likewise, for ordinary
purposes 1 at least, become obsolete, because they have
practically no value at all. The last case of a treaty
secured by hostages is the Peace of Aix-la-Chapelle
in 1748, in which hostages were stipulated to be sent
by England to France for the purpose of securing the
restitution of Cape Breton Island to the latter. The
hostages sent were Lords Sussex and Cathcart, who
remained in France till July 1749.
pledge. § 526. The pledging of movable property by one of
the contracting parties to the other for the purpose of
securing the performance of a treaty is possible, but
has not frequently occurred. Thus, Poland is said to
have pledged her crown jewels once to Prussia.2 The
pledging of movables is nowadays quite obsolete,
although it might on occasion be revived.
Occupa- § 527. Occupation of territory, such as a fort or even
Territory. a wn°le province, as a means of securing the performance
of a treaty, has frequently been made use of with regard
to the payment of large sums of money due to a State
1 Concerning hostages nowadays a See Phillimore, II. § 55.
taken in time of war, see below,
voL II. §§ 258-259.
PARTICIPATION OF THIRD STATES IN TREATIES 567
under a treaty. Nowadays such occupation is only

resorted to in connection with treaties of peace stipu-
lating the payment of a war indemnity. Thus, the
preliminary peace treaty of Versailles in 1871 stipulated
that Germany should have the right to keep certain
parts of France under military occupation until the final
payment of the war indemnity of five milliards of francs.
§ 528. The best means of securing treaties, and one Guaran-
which is still in use generally, is the guarantee of such tee'
other States as are not directly affected by the treaty.
Such guarantee is a kind of accession l to the guaranteed
treaty, and a treaty in itself — namely, the promise of
the guarantor eventually to do what is in his power to
compel the contracting party or parties to execute the
treaty.2 Guarantee of a treaty is a species only of
guarantee in general, which will be discussed below,
§§ 574-576a.
VIII
PARTICIPATION OF THIRD STATES IN TREATIES
Hall, § 114— Wheaton, § 288— Hartmann, § 51— Heffter, § 88— Ullmann, § 81

— Bonfils, Nos. 832-834— Despagnet, No. 448— Pradier-Fodere", II. Nos.
1127-1150— Rivier, II. pp. 89-93— Calvo, III. §§ 1621-1626— Fiore, II.
Nos. 1025-1031— Martens, I. § 111.
§ 529. Ordinarily a treaty creates rights and duties interest

between the contracting parties exclusively. Never- participa-
theless, third States may be interested in such treaties, *° be
for the common interests of the members of the Family
of Nations are so interlaced that few treaties between
single members can be concluded in which third States
have not some kind of interest. But such interest, all-
important as it may be, must not be confounded with
1 See below, § 532. guaranteeing for the present and the
2 Nippold (p. 266) proposes that a future all international treaties. I
universal treaty of guarantee should do not believe that this well-meant
be concluded between all the proposal is feasible.
members of the Family of Nations
568 TREATIES
participation of third States in treaties. Such partici-

pation can occur in five different forms — namely, good
offices, mediation, intervention, accession, and ad-
hesion.1
Good § 530. A treaty may be concluded with the help of
an/6' the good offices or through the mediation of a third
Mediation. gtate> whether these offices be asked for by the con-
tracting parties . or be exercised spontaneously by a
third State. Such third State, however, does not
necessarily, either through good offices or through media-
tion, become a real party to the treaty, although this
might be the case. A great many of the most im-
portant treaties owe their existence to the good offices
or mediation of third Powers. The difference between
good offices and mediation will be discussed below,
vol. II. § 9.
interven- § 531. A third State may participate in a treaty in
such a way that it interposes dictatorially between two
States negotiating a treaty and requests them to drop
or to insert certain stipulations. Such intervention
does not necessarily make the interfering State a real
party to the treaty. Instances of threatened inter-
vention of such a kind are the protest on the part of
Great Britain against the preliminary peace treaty con-
cluded in 1878 at San Stefano 2 between Russia and
Turkey, and that on the part of Russia, Germany, and
France in 1895 against the peace treaty of Shimonoseki 3
between Japan and China.
Accession. § 532. Of accession there are two kinds. Accession
means, firstly, the formal entrance of a third State
into an existing treaty so that such State becomes a
1 That certain treaties concluded has given a mandate to another State
by the suzerain are ipso facto con- to contract on its behalf,
eluded for the vassal State does not 2 See above, § 135, p. 190, No. 2.
make the latter participate in such 3 See R.G. II. pp. 457-463. De-
treaties. Nor is it correct to speak tails concerning intervention have
of participation of a third State in a been given above, § 134-138 ; see
treaty when a State becomes party also below, vol. II. § 50.
to a treaty through the fact that it
PARTICIPATION OF THIRD STATES IN TREATIES 569
party to the treaty with all rights and duties arising

therefrom. Such accession can take place only with
the consent of the original contracting parties, and
accession always constitutes a treaty of itself. Very,
often the contracting parties stipulate expressly that the
treaty shall be open to the accession of a certain State.
And the so-called law-making treaties, as the Declaration
of Paris or the Geneva Convention for example, regu-
larly stipulate the Option of accession of all such States
as have not been originally contracting parties.
But there is, secondly, another kind of accession
possible. For a State may enter into a treaty between
other States for the purpose of guarantee.1 This kind
of accession makes the acceding State also a party to
the treaty ; but the rights and duties of the acceding
State are different from the rights and duties of the
other parties, for the former is a guarantor only, whereas
the latter are directly affected by the treaty.
§ 533. Adhesion is defined as such entrance of a third Adhesion.
State into an existing treaty as takes place either with
regard only to a part of the stipulations or with regard
only to certain principles laid down in the treaty.
Whereas through accession a third State becomes a
party to the treaty with all the rights and duties aris-
ing from it, through adhesion a third State becomes a
party only to such parts or principles of the treaty as
it has adhered to. But it must be specially observed
that the distinction between accession and adhesion is
one made in theory, to which practice frequently does
not correspond. Often treaties speak of accession of third
States where in fact adhesion only is meant, and vice
versa. Thus, article 6 of the Hague Convention with
respect to the laws and customs of war on land stipulates
the possibility of future adhesion of non-signatory
Powers, although accession is meant.
570 TREATIES
IX
EXPIRATION AND DISSOLUTION OF TREATIES
Vattel, II. §§ 198-205— Hall, § 116— Westlake, I. pp. 284-286— Lawrence,

§ 134— Halleck, I. pp. 293-296— Taylor, §§ 394-399— Wharton, II. § 137A
— Wheaton, § 275— Moore, V. §§ 770-778— Bluntschli, §§ 450-461—
Heffter, § 99— Ullmann, § 85— Bonfils, Nos. 855-860— Despagnet, Nos.
453-455— Pradier-Fodere, II. Nos. 1200-1218— Merignhac, II. p. 788—
Rivier, II. § 55— Nys, III. pp. 48-53— Calvo, III. §§ 1662-1668— Fiore,
II. Nos. 1047-1052— Martens, I. § 117— Jellinek, " Die rechtliche Natur
der Staatenvertrage" (1880), pp. 62-64— Nippold, op. cit. pp. 235-248—
Olivi, " Sull' estinzione dei trattati internazionali " (1883)— Schmidt,
" Ueber die volkerrechtliche clausula rebus sic stantibus, &c." (1907) — Kauf-
mann, " Das Wesen des Volkerrechts und die clausula rebus sic staniibus "
(1911)— Bonucci in Z.V. IV. (1910), pp. 449-471.
Expira-
tion and § 534. The binding force of treaties may terminate
Dissolu- in four different ways, because a treaty may either
tion in
Contradis- expire, or be dissolved, or become void, or be can-
tinction
to Fulfil- celled.1 The grounds of expiration of treaties are,
ment. first, expiration of the time for which a treaty was
concluded, and, secondly, occurrence of a resolutive
condition. Of grounds of dissolution of treaties there
are three — namely, mutual consent, withdrawal by
notice, and vital change of circumstances. In contra-
distinction to expiration and dissolution as well as to
voidance and cancellation, performance of treaties does
not terminate their binding force. A treaty whose
obligation has been performed is as valid as before,
although it is now of historical interest only.
Expira-
tion § 535. All such treaties as are concluded for a cer-
through tain period of time only, expire with the expiration of
Expira-
tion such time, unless they are renewed or prolonged for
of Time.
another period. Such time-expiring treaties are fre-
quently concluded, and no notice is necessary for their
expirations, except when specially stipulated.
1 The distinction made in the text would seem to be of considerable
between fulfilment, expiration, dis- importance. Voidance and cancel-
solution, voidance, and cancellation lation will be discussed below, §§
of treaties is, as far as I know, 540-544 and 545-549.
nowhere sharply drawn, although it
EXPIRATION AND DISSOLUTION OF TREATIES 571
A treaty, however, may be concluded for a certain

period of time only, but with the additional stipulation
that the treaty shall after the lapse of such period be
valid for another such period, unless one of the con-
tracting parties gives notice in due time.
§ 536. Different from time-expiring treaties are such
as are concluded under a resolutive condition, which
means under the condition that they shall at once condition6
expire with the occurrence of certain circumstances.
As soon as these circumstances arise, the treaties expire.
§ 537. A treaty, although concluded for ever or for Mutual
• I £ j.' 1 • -L T- • J Consent.
a period of time which has not yet expired, may never-
theless always be dissolved by mutual consent of the
contracting parties. Such mutual consent can become
apparent in three different ways.
First, the parties can expressly and purposely de-
clare that a treaty shall be dissolved ; this is rescission.
Or, secondly, they can conclude a new treaty concerning
the same objects as those of a former treaty without
any reference to the latter, although the two treaties
are inconsistent with each other. This is substitution,
and in such a case it is obvious that the treaty previously
concluded was dissolved by tacit mutual consent. Or,
thirdly, if the treaty is such as imposes obligations upon
one of the contracting parties only, the other party
can renounce its rights. Dissolution by renunciation
is a case of dissolution by mutual consent, since accept-
ance of the renunciation is necessary.
§ 538. Treaties, provided they are not such as are with-
concluded for ever, may also be dissolved by with-
drawal, after notice by one of the parties. Many
treaties stipulate expressly the possibility of such
withdrawal, and as a rule contain details in regard to
form and period in which notice is to be given for the
purpose of withdrawal. But there are other treaties
which, although they do not expressly stipulate the
572 TREATIES
possibility of withdrawal, can nevertheless be dis-

solved after notice by one of the contracting parties.
To that class belong all such treaties as are either not
expressly concluded for ever or apparently not in-
tended to set up an everlasting condition of things.
Thus, for instance, a commercial treaty or a treaty of
alliance not concluded for a fixed period only can always
be dissolved after notice, although such notice be not
expressly stipulated. Treaties, however, which are ap-
parently intended, or expressly concluded, for the pur-
pose of setting up an everlasting condition of things, and,
further, treaties concluded for a certain period of time
only, are as a rule not notifiable, although they can be
dissolved by mutual consent of the contracting parties.
It must be emphasised that all treaties of peace and
all boundary treaties belong to this class. It cannot
be denied that history records many cases in which
treaties of peace have not established an everlasting
condition of things, since one or both of the con-
tracting States took up arms again as soon as they re-
covered from the exhausting effect of the previous war.
But this does not prove either that such treaties can
be dissolved through giving notice, or that, at any rate
as far as International Law is concerned, they are not
intended to create an everlasting condition of things.
vital § 539. Although, as just stated, treaties concluded
stances.
for B, certain period of time, and such treaties as are
apparently intended or expressly contracted for the
purpose of setting up an everlasting condition of things,
cannot in principle be dissolved by withdrawal of one
of the parties, there is an exception to this rule. For
it is an almost universally recognised fact that vital
changes of circumstances may be of such a kind as to
justify a party in notifying an unnotifiable treaty.
The vast majority of publicists, as well as all the Govern-
ments of the members of the Family of Nations, defend
the principle Conventio omnis intelligitur rebus sic

stantibus, and they agree,1 therefore, that all treaties
are concluded under the tacit condition rebus sic stanti-
bus. That this condition involves a certain amount of
danger cannot be denied, for it can be, and indeed
sometimes has been, abused for the purpose of hiding
the violation of treaties behind the shield of law, and
of covering shameful wrong with the mantle of righteous-
ness. But all this cannot alter the fact that this ex-
ceptional condition is as necessary for International
law and international intercourse as the very rule
pacta sunt servanda. When, for example, the existence
or the necessary development of a State stands in
unavoidable conflict with such State's treaty obliga-
tions, the latter must give way, for self-preservation
and development in accordance with the growth and
the necessary requirements of the nation are the primary
duties of every State. No State would consent to any
such treaty as would hinder it in the fulfilment of
these primary duties. The consent of a State to a
treaty presupposes a conviction that such treaty is not
fraught with danger to its existence and development,
and implies a condition that, if by an unforeseen change
of circumstances the obligations stipulated in the treaty
should imperil the said State's existence and necessary
development, the treaty, although by its nature un-
notifiable, should nevertheless be notifiable.
The danger of the clause rebus sic stantibus is to be
found in the elastic meaning of the term " vital changes
of circumstances," as, after all, a State must in every
1 See Bonucci in Z.V. IV. (1910), " Institutes of International Law," I.
pp. 449-471. Many writers agree to (1849), p. 175. Schmidt, op. cit. pp.
it with great reluctance only and in 97-118, would seem to reject the
a very limited sense, as, for instance, clausula altogether, but can neverthe-
Grotius, II. c. 16, § 25, No. 2 ; Vattel, less not help recognising it in the
II. § 296 ; Kliiber, § 165. Some few end. A good survey of the practice
writers, however, disagree altogether, of the States in the matter during the
as, for instance, Bynkershoek," Quest. nineteenth century is given by Kauf-
jur. public." II. c. 10, and Wildman, mann, op. cit. pp. 12-37.
574 TREATIES
special case judge for itself whether or no there is a

vital change of circumstances justifying its withdrawal
from an unnotifiable treaty. On the other hand, the
danger is counterbalanced by the fact that the frequent
and unjustifiable use of the clause rebus sic stantibus by
a State would certainly destroy all its credit among the
nations.
Be that as it may, it is generally agreed that certainly
not every change of circumstances justifies a State
in making use of the clause. All agree that, although
treaty obligations may through a change of circum-
stances become disagreeable, burdensome, and onerous,
they must nevertheless be discharged. All agree,
further, that a change of government and even a change
in the form of a State, such as the turning of a monarchy
into a republic and vice versa, does not alone and in
itself justify a State in notifying such a treaty as is by
its nature unnotifiable. On the other hand, all agree
in regard to many cases in which the clause rebus sic
stantibus could justly be made use of. Thus, for ex-
ample, ifa State enters into a treaty of alliance for a
certain period of time, and if before the expiration of
the alliance a change of circumstances occurs, so that
now the alliance endangers the very existence of one
of the contracting parties, all will agree that the clause
rebus sic stantibus would justify such party in notify-
ing the treaty of alliance.
A certain amount of disagreement as to the cases
in which the clause might or might not be justly ap-
plied will of course always remain. But the fact is
remarkable that during the nineteenth century not
many cases of the application of the clause have oc-
curred. And the States and public opinion everywhere
have come to the conviction that the clause rebus sic
stantibus ought not to give the right to a State at once to
liberate itself from the obligations of a treaty, but only
the claim to be released from these obligations by the

other parties to the treaty. Accordingly, when a State
is of the opinion that the obligations of a treaty have
through a vital change of circumstances become unbear-
able, itshould first approach the other party or parties
and request them to abrogate the treaty. And it is only
when such abrogation is refused that a State may
perhaps be justified in declaring that it could no longer
consider itself bound by the obligations concerned.
Thus, when, in 1870, during the Franco-German War,
Russia declared her withdrawal from such stipulations
of the Treaty of Paris of 1856 as concerned the neutral-
isation of the Black Sea and the restriction imposed
upon Eussia in regard to men-of-war in that sea, Great
Britain protested, and a conference was held in London
in 1871. Although by a treaty signed on March 13,
1871, this conference, consisting of the signatory Powers
of the Treaty of Paris — namely, Austria, England,
France, Germany, Italy, Russia, and Turkey — complied
with the wishes of Russia and abolished the neutralisa-
tion of the Black Sea, it adopted in a protocol 1 of
January 17, 1871, the following declaration :— " Que
c'est un principe essentiel du droit des gens qu'aucune
Puissance ne peut se delier des engagements d'un
traite, ni en modifier les stipulations, qu'a la suite de
Passentiment des parties contractantes, au moyen d'une
entente amicale."
In spite of this declaration, signed also by herself,
Russia in 1886 notified her withdrawal from article 59
of the Treaty of Berlin of 1878 stipulating the freedom
of the port of Batoum.2 The signatory Powers of the
Treaty of Berlin seem to have tacitly consented, with
the exception of Great Britain, which protested. Again,
in October 1908, Austria-Hungary, in defiance of article
nSee Martens, N.R.G. XVIII. 2 See Martens, N.R.G. 2nd Ser.
p 278 XIV. p. 170, and Rolin-Jaequemyns
in R.I. XIX. (1887), pp. 37-49.
576 TREATIES
25 of the Treaty of Berlin, 1878, proclaimed her sove-

reignty over Bosnia and Herzegovina, which hitherto
had been under her occupation and administration,
and simultaneously Bulgaria, in defiance of article 1
of the same treaty, declared herself independent.1
Thus the standard value of the Declaration of the Con-
ference ofLondon of 1871 has become doubtful again.
X
VOIDANCE OF TREATIES
See the literature quoted at the commencement of § 534.
Grounds § 540. A treaty, although it has neither expired

of void- nor been dissolved, may nevertheless lose its binding
force by becoming void.2 And such voidance may
have different grounds — namely, extinction of one of
the two contracting parties, impossibility of execution,
realisation of the purpose of the treaty otherwise than
by fulfilment, and, lastly, extinction of such object as
was concerned in a treaty.
Extinc- § 541. All treaties concluded between two States
one of the become void through the extinction of one of the con-
tracthT tracting parties, provided they do not devolve upon
Parties, such State as succeeds to the extinct State. That
some treaties devolve upon the successor has been
shown above (§ 82), but many treaties do not. On
1 See above, § 50, p. 76 ; Martens, nified Turkey. This is to be inferred
N.R.G. 3rd Ser. II. p. 606 ; and from the fact that, when Austria-
Blociszewski in KG. XVII. (1910), Hungary proclaimed her sovereignty
pp. 417-449. There is hardly any over the provinces, Turkey accepted
doubt that, if Austria- Hungary had compensation, and the Powers, which
not ignored the above-mentioned first had protested and demanded an
Declaration contained in the protocol international conference, consented
of January 17, 1871, and had to the abrogation of the Treaty of
approached the Powers in the Berlin.
matter, the abrogation of article 25 2 But such voidance must not be
of the Treaty of Berlin would have confounded with the voidance of a
been granted and she would have treaty from its very beginning ; see
been allowed to annex Bosnia and above, § 501.
Herzegovina after having indem-
VOIDANCE OF TREATIES 577
this ground all political treaties, such as treaties of

alliance, guarantee, neutrality, and the like, become
void.
§ 542. All treaties whose execution becomes im-
possible subsequent to their conclusion are thus Execution
rendered void. A frequently quoted example is that
of three States concluding a treaty of alliance and
subsequent war breaking out between two of the con-
tracting parties. In such case it is impossible for the
third party to execute the treaty, and it becomes void.1
It must, however, be added that the impossibility of
execution may be temporary only, and that then the
treaty is not void but merely suspended.
§ 543. All treaties whose purpose is realised other-
wise than by fulfilment become void. For example, a
treaty concluded by two States for the purpose of
inducing a third State to undertake a certain obliga-
tion becomes void if the third State voluntarily under-
takes the same obligation before the two contracting
States have had an opportunity of approaching the
third State with regard to the matter.
§ 544. All treaties whose obligations concern a cer- Extinc
tain object become void through the extinction of such such
object. Treaties, for example, concluded in regard to
a certain island become void when such island dis-
appears through the operation of nature, as likewise
do treaties concerning a third State when such State
merges in another.
1 See also above, § 521, where the reason cannot be executed when
case is mentioned that a treaty this form of government undergoes a
essentially presupposes a certain change,
form of government, and for this
VOL. I. 2o
578 TREATIES
XI
CANCELLATION OF TREATIES
See the literature quoted at the commencement of § 534.
Grounds § 545. A treaty, although it has neither expired,

lation.06 nor been dissolved, nor become void, may nevertheless
lose its binding force by cancellation. The causes of
cancellation are' four — namely, inconsistency with Inter-
national Law created subsequent to the conclusion of
the treaty, violation by one of the contracting parties,
subsequent change of status of one of them, and war.
inconsis- § 546. Just as treaties have no binding force when
subC-ywUh concluded with reference to an illegal object, so they
inter30* ôse their binding force when through a progressive
national development of International Law they become incon-
sistent with the latter. Through the abolition of pri-
vateering among the signatory Powers of the Declara-
tion of Paris of 1856, for example, all treaties between
any of these Powers based on privateering as a recog-
nised institution of International Law were ipso facto
cancelled.1 But it must be emphasised that subsequent
Municipal Law can certainly have no such influence
upon existing treaties. On occasions, indeed, subse-
quent Municipal Law creates for a State a conflict
between its treaty obligations and such law. In such
case this State must endeavour to obtain a release by
the other contracting party from these obligations.2
1 This must be maintained in spite become parties to the Declaration of
of the fact that Protocol No. 24 — see Paris are not ipso facto cancelled by
Martens, N.R.G. XV. (1857), pp. the Declaration.
768-769— contains the following: 2 That Municipal Courts must
" Sur une observation faite par MM. apply the subsequent Municipal Law
les Ple*nipotentiaires de la Russie, le although it conflicts with previous
Congres reconnalt que la prdsente treaty obligations, there is no doubt,
resolution, ne pouvant avoir d'effet as has been pointed out above, § 21.
retroactif, ne saurait invalider les See The Cherokee Tobacco, 1 1 Wall
Conventions ant6rieures." This 616 ; Whitney v. Robertson, 124
expression of opinion can only mean United States 190 ; Botiller v. Domin-
that previous treaties with such guez, 130 United States 238. See also
States as were not and would not Moore, V. § 774.
CANCELLATION OF TREATIES 579
§ 547. Violation of a treaty by one of the contract- violation

ing States does not ipso facto cancel such treaty, but it the°con°-f
is in the discretion of the other party to cancel it on tractmg
p3.rti.6s
the ground of violation. There is no unanimity among

writers on International Law in regard to this point,
in so far as a minority makes a distinction between
essential and non-essential stipulations of the treaty,
and maintains that violation of essential stipulations
only creates a right for the other party to cancel the
treaty. But the majority of writers rightly oppose
this distinction, maintaining that it is not always
possible to distinguish essential from non-essential
stipulations, that the binding force of a treaty protects
non-essential stipulations as well as essential ones,
and that it is for the faithful party to consider for
itself whether violation of a treaty, even in its least
essential parts, justifies the cancelling of the treaty.
The case, however, is different when a treaty expressly
stipulates that it should not be considered broken by
violation of merely one or another part of it. And it
must be emphasised that the right to cancel the treaty
on the ground of its violation must be exercised within
a reasonable time after the violation has become known.
If the Power possessing such right does not exercise it
in due time, it must be taken for granted that such right
has been waived. A mere protest, such as the protest of
England in 1886 when Russia withdrew from article
59 of the Treaty of Berlin of 1878, which stipulated
the freedom of the port of Batoum, neither constitutes
a cancellation nor reserves the right of cancellation.
§ 548. A cause which ipso facto cancels treaties is
such subsequent change of status of one of the con-
tracting States as transforms it into a dependency of
another State. As everything depends upon the merits Contract-
of each case, no general rule can be laid down as regards pities.
the question when such change of status must be con-
580 TREATIES
sidered to have taken place, or, further, as regards

the other question as to the kind of treaties cancelled
by such change.1 Thus, for example, when a State
becomes a member of a Federal State, it is obvious that
all its treaties of alliance are ipso facto cancelled, for in
a Federal State the power of making war rests with the
Federal State, and not with the several members. And
the same is valid as regards a hitherto full-Sovereign
State which comes under the suzerainty of another
State. On the other hand, a good many treaties retain
their binding force in spite of such a change in the
status of a State, all such treaties, namely, as concern
matters in regard to which the State has not lost its
sovereignty through the change. For instance, if the
constitution of a Federal State stipulates that the
matter of extradition remains fully in the competence
of the member-States, all treaties of extradition of mem-
bers concluded with third States previous to their
becoming members of the Federal State retain their
binding force.
War. § 549. How far war is a general ground of cancella-
tion of treaties is not quite settled. Details on this
point will be given below, vol. II. § 99.
XII
RENEWAL, RECONFIRMATION, AND REDINTEGRATION
OF TREATIES
Vattel, II. § 199— Hall, § 117— Taylor, § 400— Hartmann, § 51— Ullmann,
§ 85— Bonfils, Nos. 851-854— Despagnet, No. 456— Pradier-Foderd, II.
Nos. 1191-1199— Rivier, II. pp. 143-146— Calvo, III. §§ 1637, 1666, 1669
— Fiore, II. Nos. 1048-1049, and Code, Nos. 835-838.
Renewal § 550. Renewal of treaties is the term for the prolon-

Treaties. gation of such treaties before their expiration as were
concluded for a definite period of time only. Renewal
1 See Moore, V. § 773, and above, § 82, p. 128, note 1, and § 521.
RENEWAL— RECONFIRMATION— REDINTEGRATION 581
can take place through a new treaty, and the old treaty
may then be renewed as a body or in parts only. But
the renewal can also take place automatically, many
treaties concluded for a certain period stipulating ex-
pressly that they are considered renewed for another
period in case neither of the contracting parties has
given notice.
§ 551. Reconfirmation is the term for the express
statement made in a new treaty that a certain previous firmation-
treaty, whose validity has or might have become doubt-
ful, isstill, and remains, valid. Reconfirmation takes
place after such changes of circumstances as might be
considered to interfere with the validity of a treaty ;
for instance, after a war, as regards such treaties as
have not been cancelled by the outbreak of war. Re-
confirmation can be given to the whole of a previous
treaty or to parts of it only. Sometimes reconfirmation
is given in this very precise way, that a new treaty
stipulates that a previous treaty shall be incorporated
in itself. It must be emphasised that in such a case
those parties to the new treaty which have not been
parties to the previous treaty do not now become so
by its reconfirmation, the latter applying to the pre-
vious contracting parties only.
§ 552. Treaties which have lost their binding force Redinte-
through expiration or cancellation may regain it through gra
redintegration. A treaty becomes redintegrated by the
mutual consent of the contracting parties regularly
given in a new treaty. Thus it is usual for treaties of
peace to redintegrate all those treaties cancelled through
the outbreak of war whose stipulations the contracting
parties do not want to alter.
Without doubt, redintegration does not necessarily
take place exclusively by a treaty, as theoretically it must
be considered possible for the contracting parties tacitly
to redintegrate an expired or cancelled treaty by a line
582 TREATIES
of conduct which indicates apparently their intention

to redintegrate the treaty. However, I do not know of
any instance of such tacit redintegration.
XIII
INTERPRETATION OF TREATIES
Grotius, II. c. 16— Vattel, II. §§ 262-322— Hall, §§ 111-112— Phillimore, II.
§§ 64-95— Halleck, I. pp. 296-304— Taylor, §§ 373-393— Walker, § 31—
Wheaton, § 287— Moore, V. §§ 763-764— Heffter, § 95— Ullmann, § 84—
Bonfils, Nos. 835-837— Despagnet, No. 450— Pradier-Fodere, II. Nos.
1171-1189— Mdrignhac, II. p. 678— Nys, III. pp. 41-43— Rivier, II. pp. 122-
125— Calvo, III. §§ 1649-1660— Fiore, II. Nos. 1032-1046, and Code, Nos.
792-816— Martens, I. § 116— Westlake, I. pp. 282-283— Pick in B.G-.
XVII. (1907), pp. 5-35— Hyde in A.J. III. (1909), pp. 46-61.
Authentic § 553. Neither customary nor conventional rules of

teS'6" International Law exist concerning interpretation of
Comthe treaties. Grotius and the later authorities applied the
promise rules of Roman Law respecting interpretation in general
to interpretation of treaties. On the whole, such ap-
plication iscorrect in so far as those rules of Roman
Law are full of common sense. But it must be empha-
sised that interpretation of treaties is in the first in-
stance a matter of consent between the contracting
parties. If they choose a certain interpretation, no
other has any basis. It is only when they disagree that
an interpretation based on scientific grounds can ask
a hearing. And these scientific grounds can be no
other than those provided by jurisprudence. The best
means of settling questions of interpretation, provided
the parties cannot come to terms, is arbitration, as the
appointed arbitrators will apply the general rules of
jurisprudence. Now in regard to interpretation given
by the parties themselves, there are two different ways
open to them. They may either agree informally upon
the interpretation and execute the treaty accordingly ;
or they may make an additional new treaty and stipu-
INTERPRETATION OF TREATIES 583
late therein such interpretation of the previous treaty

as they choose. In the latter case one speaks of
" authentic " interpretation in analogy with the au-
thentic interpretation of Municipal Law given expressly
by a statute. Nowadays treaties very often contain
the so-called " compromise clause " as regards inter-
pretation — namely, the clause that, in case the parties
should not agree on questions of interpretation, these
questions shall be settled by arbitration. Italy and
Switzerland regularly endeavour to insert that clause
in their treaties.
§ 554. It is of importance to enumerate some rules Rules of
of interpretation 1 which recommend themselves on tatioT^
account of their suitability.
(1) All treaties must be interpreted according to mend
their reasonable in contradistinction to their literal selves.
sense. An excellent example illustrating this rule is
the following, which is quoted by several writers :—
In the interest of Great Britain the Treaty of Peace of
Utrecht of 1713 stipulated in its article 9 that the port
and the fortifications of Dunkirk should be destroyed
and never be rebuilt. France complied with this
stipulation, but at the same time began building an
even larger port at Mardyck, a league off Dunkirk.
Great Britain protested on the ground that France in
so acting was violating the reasonable, although not
the literal, sense of the Peace of Utrecht, and France
in the end recognised this interpretation and discon-
tinued the building of the new port.
(2) The terms used in a treaty must be interpreted
according to their usual meaning in the language of
every-day life, provided they are not expressly used in
a certain technical meaning or another meaning is not
apparent from the context.
1 The whole matter of interpre- 64-95 ; see also Moore, V. § 763, and
tation of treaties is dealt with in an Wharton, II. § 133.
admirable way by Phillimore, II. §§
584 TREATIES
(3) It is taken for granted that the contracting

parties intend something reasonable, something adequate
to the purpose of the treaty, and something not incon-
sistent with generally recognised principles of Inter-
national Law nor with previous treaty obligations to-
wards third States. If, therefore, the meaning of a
stipulation is ambiguous, the reasonable meaning is
to be preferred to the unreasonable, the more reason-
able to the less reasonable, the adequate meaning to the
meaning not adequate for the purpose of the treaty,
the consistent meaning to the meaning inconsistent
with generally recognised principles of International
Law and with previous treaty obligations towards third
States.
(4) The principle in dubio mitius must be applied in
interpreting treaties. If, therefore, the meaning of a
stipulation is ambiguous, such meaning is to be pre-
ferred as is less onerous for the obliged party, or as
interferes less with the parties' territorial and personal
supremacy, or as contains less general restrictions upon
the parties.
(5) Previous treaties between the same parties, and
treaties between one of the parties and third parties,
may be alluded to for the purpose of clearing up the
meaning of a stipulation.
(6) If there is a discrepancy between the clear
meaning of a stipulation, on the one hand, and, on the
other, the intentions of one of the parties declared
during the negotiations preceding the signing of a
treaty, the decision must depend on the merits of the
special case. If, for instance, the discrepancy was
produced through a mere clerical error or by some other
kind of mistake, it is obvious that an interpretation is
necessary in accordance with the real intentions of the
contracting parties.
(7) In case of a discrepancy between the clear
INTERPRETATION OF TREATIES 585
meaning of a stipulation, on the one hand, and, on the

other, the intentions of all the parties unanimously de-
clared during the negotiations preceding the signing of
the treaty, the meaning which corresponds to the real
intentions of the parties must prevail over the meaning
of the text. If, therefore — as in the case of the Declara-
tion of London of 1909 — the Keport of the Drafting
Committee contains certain interpretations and is unani-
mously accepted as authoritative by all the negotiators
previous to the signing of the treaty, their interpreta-
tions must prevail.
(8) If two meanings of a stipulation are admissible
according to the text of a treaty, such meaning is to
prevail as the party proposing the stipulation knew at
the time to be the meaning preferred by the party
accepting it.
(9) If it is a matter of common knowledge that a
State upholds a meaning which is different from the
generally prevailing meaning of a term, and if never-
theless another State enters into a treaty with the former
in which such term is made use of, such meaning must
prevail as is upheld by the former. If, for instance,
States conclude commercial treaties with the United
States of America in which the most-favoured-nation
clause l occurs, the particular meaning which the United
States attribute to this clause must prevail.
(10) If the meaning of a stipulation is ambiguous
and one of the contracting parties, at a time before a
case arises for the application of the stipulation, makes
known what meaning it attributes to the stipulation,
the other party or parties cannot, when a case for the
application of the stipulation occurs, insist upon a
different meaning. They ought to have previously pro-
tested and taken the necessary steps to secure an
authentic interpretation of the ambiguous stipulation.
586 TREATIES
Thus, when in 1911 it became obvious that Germany

and other continental States attributed to article 23 (A)
of the Hague Eegulations respecting the Laws and
Usages of War on Land a meaning different from the
one preferred by Great Britain, the British Foreign
Office made the British interpretation of this article
known.
(11) It is to be taken for granted that the parties
intend the stipulations of a treaty to have a certain
effect and not to be meaningless. Therefore, such
interpretation is not admissible as would make a stipu-
lation meaningless or inefficient.
(12) All treaties must be interpreted so as to ex-
clude fraud and so as to make their operation con-
sistent with good faith.
(13) The rules commonly applied by the Courts as
regards the interpretation and construction of Muni-
cipal Laws are in so far only applicable to the inter-
pretation and construction of treaties, and in especial
of law-making treaties, as they are general rules of
jurisprudence. If, however, they are particular rules,
sanctioned only by the Municipal Law or by the prac-
tice of the Courts of a particular country, they may not
be applied.
(14) If a treaty is concluded in two languages, for
instance, a treaty between Great Britain and France
in English and French, and if there is a discrepancy
between the meaning of the two different texts, each
party is only bound by the text of its own language.
But a party cannot claim any advantage from the
text of the language of the other party.
CHAPTER III
IMPORTANT GROUPS OF TREATIES
I
IMPORTANT LAW-MAKING TREATIES
§ 555. Law-making treaties l have been concluded important

ever since International Law came into existence. It was Baking
not until the nineteenth century, however, that such law- Treaties *
. product of
making treaties existed as are of world- wide importance, the Nine-
Although at the Congress at Miinster and Osnabriick century,
all the then existing European Powers, with the excep-
tion of Great Britain, Russia, and Poland, were repre-
sented, the Westphalian Peace of 1648, to which France,
Sweden, and the States of the German Empire were
parties, and which recognised the independence of
Switzerland and the Netherlands, on the one hand, and,
on the other, the practical sovereignty of the then exist-
ing 355 States of the German Empire, was not of world-
wide importance, in spite of the fact that it contains
various law-making stipulations. And the same may
be said with regard to all other treaties of peace between
1648 and 1815. The first law-making treaty of world-
wide importance was the Final Act of the Vienna Con-
gress, 1815, and the last, as yet, is the Declaration of
London of 1909. But it must be particularly noted
that not all of these are pure law-making treaties, since
many contain other stipulations besides those which
are law-making.
and 1 492.
Concerning the conception of 587
law-making treaties, see above, §§ 18
588 IMPORTANT GROUPS OF TREATIES
Final Act § 556. The Final Act of the Vienna Congress,1 signed
Vienna °n June 9, 1815, by Great Britain, Austria, France,
congress. Portugal, Prussia, Russia, Spain, and Sweden-Norway,
comprises law-making stipulations of world-wide im-
portance concerning four points — namely, first, the
perpetual neutralisation of Switzerland (article 118,
No. 11) ; secondly, free navigation on so-called inter-
national rivers (articles 108-117) : thirdly, the aboli-
tion of the negro slave trade (article 118, No. 15) ;
fourthly, the different classes of diplomatic envoys
(article 118, No. 16).
Protocol § 557. The Protocol of November 21 of the Con-
g*ess of Aix-la-Chapelle,2 1818, signed by Great Britain,
Charlie Austria, France, Prussia, and Russia, contains the im-
portant law-making stipulation concerning the estab-
lishment of a fourth class of diplomatic envoys, the
so-called " Ministers Resident/' to rank before the
Charges d' Affaires.
Lonadon°of § 558' ^ Treat7 of London 3 of November 15, 1831,
isTi. °n ' signed by Great Britain, Austria, France, Prussia, and
Russia, comprises in its article 7 the important law-
making stipulation concerning the perpetual neutralisa-
tion of Belgium.
Deciara- § 559. The Declaration of Paris 4 of April 13, 1856,
Paris. signed by Great Britain, Austria, France, Prussia,
Russia, Sardinia, and Turkey, is a pure law-making
treaty of the greatest importance, stipulating four rules
with regard to sea warfare — namely, that privateering
is abolished ; that the neutral flag covers enemy goods
with the exception of contraband of war ; that neutral
goods, contraband excepted, cannot be confiscated even
when sailing under the enemy flag ; that a blockade
must be effective to be binding.
1 Martens, N.R. II. p. 379. See 3 Martens, N.R. XI. p. 390. See
Angeberg, " Le congrfcs de Vienne et Descamps, " La neutrality de la
les traites de 1815 " (4 vols., 1863). Belgique " (1902).
2 Martens, N.R. IV. p. 648. See 4 Martens, N.R.G. XV. p. 767.
Angeberg, op. cit.
IMPORTANT LAW-MAKING TREATIES 589
Through accession during 1856, the following other

States have become parties to this treaty : Argentina,
Belgium, Brazil, Chili, Denmark, Ecuador, Greece,
Guatemala, Hayti, Holland, Peru, Portugal, Sweden-
Norway, and Switzerland. Japan acceded in 1886,
Spain and Mexico in 1907.
§ 560. The Geneva Convention 1 of August 22, 1864, Geneva
and that of July 6, 1906, are pure law-making treaties
for the amelioration of the conditions of the wounded
of armies in the field. The Geneva Convention of 1864
was originally signed only by Switzerland, Baden, Bel-
gium, Denmark, France, Holland, Italy, Prussia, and
Spain, but in time all other civilised States have acceded
except Costa E/ica, Lichtenstein, and Monaco. A
treaty2 containing articles additional to the Geneva
Convention of 1864 was signed at Geneva on October 20,
1868, but was not ratified. A better fate was in store
for the Geneva Convention 3 of 1906, which was signed
by the delegates of thirty-five States, many of which
have already granted ratification. Colombia, Costa Rica,
Cuba, Nicaragua, Turkey, and Venezuela have already
acceded. It is of importance to emphasise that the
Convention of 1864 is not entirely replaced by the Con-
vention of1906, in so far as the former remains in force
between those Powers which are parties to it without
being parties to the latter. And it must be remembered
that the Final Act of the First as well as of the Second
Peace Conference contains a convention for the adapta-
tion to sea warfare of the principles of the Geneva
Convention.
§ 561. The Treaty of London4 of May 11, 1867,
signed by Great Britain, Austria, Belgium, France,
Holland, Italy, Prussia, and Russia, comprises in its
1 Martens, N.R.G. XVIIL p. 607. 3 Martens, N.E.G. 3rd Ser. II.
See Lueder, " Die Genfer Conven- p. 323.
tion" (1876), and Miinzel, " Unter- * Martens, N.R.G. XVIII. p. 445.
suchungen iiber die Genfer Con- See Wampach, " Le Luxembourg
vention " (1901). Neutre " (1900).
2 Martens, N.R.G. XVIII. p. 612.
article 2 the important law-making stipulation con-

cerning the perpetual neutralisation of Luxemburg.
Deciara- § 562. The Declaration of St. Petersburg1 of No-
Petei»- vember 29, 1868, signed by Great Britain, Austria-
Hungary, Belgium, Denmark, France, Greece, Holland,
Italy, Persia, Portugal, Prussia and other German
States, Kussia, Sweden-Norway, Switzerland, and Tur-
key— Brazil acceded later on — is a pure law-making
treaty. It stipulates that projectiles of a weight below
400 grammes (14 ounces) which are either explosive or
charged with inflammable substances shall not be made
use of in war.
Treaty of § 563. The Treaty of Berlin2 of July 13, 1878,
?878.D °f signed by Great Britain, Austria-Hungary, France,
Germany, Italy, Kussia, and Turkey, is law-making
with regard to Bulgaria, Montenegro, Roumania, and
Servia. It is of great importance in so far as the
present phase of the solution of the Near Eastern
Question arises therefrom, although Bulgaria became
full-sovereign in 1908.
General § 564. The General Act of the Congo Conference 3
of Berlin of February 26, 1885, signed by Great Britain,
Austria-Hungary, Belgium, Denmark, France, Ger-
many, Holland, Italy, Portugal, Eussia, Spain, Sweden-
Norway, Turkey, and the United States of America, is
a law-making treaty of great importance, stipulating :
freedom of commerce for all nations within the basin of
the river Congo ; prohibition of slave-transport within
that basin ; neutralisation of Congo Territories ; freedom
of navigation for merchantmen of all nations on the
rivers Congo and Niger ; and, lastly, the obligation of
the signatory Powers to notify to one another all future
occupations on the coast of the African continent.
1 Martens, N.R.G. XVIII. p. 474. 3 Martens, N.R.G. 2nd Ser. X. p.
2 Martens, N.R.G. 2nd Ser. III. 414. See Patzig, " Die afrikaniscbe
p. 449. See Mulas, " II congresso di Conferenz und der Congostaat "
Berlino" (1878). (1885).
§ 565. The Treaty of Constantinople l of October 29, Treaty of

1888, signed by Great Britain, Austria-Hungary, France, SjjK*1"
Germany, Holland, Italy, Russia, Spain, and Turkey, 1888'
is a pure law-making treaty stipulating the permanent
neutralisation of the Suez Canal and the freedom of
navigation thereon for vessels of all nations.
§ 566. The General Act of the Brussels Anti-Slavery General
Conference,2 signed on July 2, 1890, by Great Britain,
Austria-Hungary, Belgium, the Congo Free State,
Denmark, France,3 Germany, Holland, Italy, Persia, Confer.
Portugal, Russia, Sweden-Norway, Spain, Turkey, the
United States of America, and Zanzibar, is a law-
making treaty of great importance which stipulates a
system of measures for the suppression of the slave-trade
in Africa, and, incidentally, restrictive measures con-
cerning the spirit-trade in certain parts of Africa. To
revise the stipulations concerning this spirit-trade the
Convention of Brussels 4 of November 3, 1906, was
signed by Great Britain, Germany, Belgium, Spain, the
Congo Free State, France, Italy, Holland, Portugal,
Russia, and Sweden.
§ 567. The Final Act of the Hague Peace Conference 5 TWO
of July 29, 1899, was a pure law-making treaty com-
prising three separate conventions — namely, a conven-
tion for the peaceful adjustment of international dif- Peace
, J . ,, , , , -, Con-
ferences, a convention concerning the law ot land war- ference.
fare, and a convention for the adaptation to maritime
warfare of the principles of the Geneva Convention of
1864, — and three Declarations — namely, a Declaration
prohibiting, for a term of five years, the discharge of
1 Martens, N.R.G. 2nd Ser. XV. * Martens, N.R.G. 3rd Ser. I. p.
p. 557, See above, § 183. 722.
2 Martens, N.R.G. 2nd Ser. XVI. 6 Martens, N.R.G. 2nd Ser. XXVI.
p. 3, and XXV. p. 543. See Lentner, p. 920. See Holls, "The Peace
" Der afrikanische Sklavenhandel und Conference at the Hague" (1900),
die Briisseler Conferenzen " (1891). and Merignhac, "La Conference
3 But Act
General Francewith only
the ratified
exclusion this
of Internationale de la Paix " (1900).
certain articles.
592 tMPOKTANT GROUPS OF TREATIES
projectiles and explosives from balloons, a Declaration

concerning the prohibition of the use of projectiles the
only object of which is the difTusibti of asphyxiating or
deleterious gases, and a Declaration concerning the
prohibition of so-called dum-dum bullets. All these
conventions, however, and the first of these declarations
have been replaced by the General Act of the Second
Hague Peace Conference, and only the last two declara-
tions are still in force. All the States which were repre-
sented at the Conference are now parties to these
declarations except the United States of America.
Treaty of § 568. The so-called Hay-Pauncefote Treaty of
washing Washington i between Great Britain and the United
States of America, signed November 18, 1901, al-
though law-making between the parties only, is never-
theless ofworld-wide importance, because it neutralises
permanently the Panama Canal, which is in course of
construction, and stipulates free navigation thereon for
vessels of all nations.2
Conven- § 568#. The Final Act of the Second Hague Peace
DecTaraand Conference of October 18, 1907, is a pure law-making
tion of treaty of enormous importance comprising the following
Hague thirteen conventions 3 and a declaration :—
Confer-
ence. (1) Convention for the Pacific Settlement of Inter-
national Disputes. All States represented at the Con-
ference signed except Nicaragua, but some signed with
reservations only. Nicaragua acceded later.
(2) Convention respecting the Limitation of the
Employment of Force for the Recovery of Contract
Debts, signed by Great Britain, Germany, the United
i Martens, N.R.G. 2nd Ser. XXX. Magellan for ever and declares them
p. 631. open to vessels of all nations. See
a It ought to be mentioned that above, p. 267, note 2, and below, vol.
article 5 of the Boundary Treaty of II. § 72.
Buenos Ayres, signed by Argentina Only a greater number of States
and Chili on September 15, 1881 — have as yet ratified the Conventions,
see Martens, N.R.G. 2nd Ser. XII. p. but it is to be expected that many
491 — contains a law-making stipu- more will grant ratification in the
lation of world- wide importance, course of time,
because it neutralises the Straits of
States of America, Argentina, Austria-Hungary, Bolivia,

Bulgaria, Chili, Columbia, Cuba, Denmark, San Do-
mingo, Ecuador, Spain, France, Greece, Guatemala,
Haiti, Italy, Japan, Mexico, Montenegro, Norway,
Panama, Paraguay, Holland, Peru, Persia, Portugal,
Kussia, Salvador, Servia, Turkey, Uruguay ; China and
Nicaragua acceded later. Some of the South American
States signed with reservations.
(3) Convention relative to the Opening of Hostilities.
All the States represented at the Conference signed ex-
cept China and Nicaragua ; both, however, acceded later.
(4) Convention concerning the Laws and Usages of
War on Land. All the States represented at the Con-
ference signed except China, Spain, and Nicaragua, but
Nicaragua acceded later. Some States made reserva-
tions in signing.
(5) Convention concerning the Rights and Duties of
Neutral Powers and Persons in Case of War on Land.
All the States represented at the Conference signed
except China and Nicaragua, but some States made
reservations. Both China and Nicaragua acceded later.
(6) Convention relative to the Status of Enemy
Merchantmen at the Outbreak of Hostilities. All the
Powers represented at the Conference signed except the
United States of America, China, and Nicaragua, but
the last named acceded later. Some States made reser-
vations insigning.
(7) Convention relative to the Conversion of Merchant
Ships into War Ships. All the Powers represented at
the Conference signed except the United States of
America, China, San Domingo, Nicaragua, and Uru-
guay, but Nicaragua acceded later. Turkey made a
reservation in signing.
(8) Convention relative to the Laying of Automatic
Submarine Contact Mines. The majority of the States
represented at the Conference signed. China, Spain,
VOL. i. 2p
Montenegro, Nicaragua, Portugal, Russia, and Sweden

have not signed, but Nicaragua acceded later. Some
States made reservations.
(9) Convention respecting Bombardments by Naval
Forces in Time of War. Except China, Spain, and
Nicaragua all the States represented at the Conference
signed, but China and Nicaragua acceded later. Some
States made reservations.
(10) Convention for the Adaptation to Naval War of
the Principles of the Geneva Convention. All the Powers
represented at the Conference signed except Nicaragua,
but some made reservations. Nicaragua acceded later.
(11) Convention relative to certain Restrictions on
the Exercise of the Right of Capture in Maritime War.
All States represented at the Conference signed except
China, Montenegro, Nicaragua, and Russia, but Nicar-
agua acceded later.
(12) Convention relative to the Creation of an Inter-
national Prize Court. The majority of the States
represented at the Conference signed. Brazil, China,
San Domingo, Greece, Luxemburg, Montenegro, Nicar-
agua, Roumania, Russia, Servia, and Venezuela have
not signed, and some of the smaller signatory Powers
made a reservation with regard to the composition of
the Court according to article 15 of the Convention.
(13) Convention concerning the Rights and Duties
of Neutral Powers in Naval War. All the States repre-
sented at the Conference signed except the United
States of America, China, Cuba, Spain, and Nicaragua.
Some States made reservations. But the United States
of America, China, and Nicaragua acceded later.
(14) Declaration prohibiting the Discharge of Pro-
jectiles and Explosives from Balloons. Only twenty-
seven of the forty-four States represented at the Con-
ference signed. Germany, Chili, Denmark, Spain,
France, Guatemala, Italy, Japan, Mexico, Montenegro,
ALLIANCES 595
Nicaragua, Paraguay, Roumania, Russia, Servia, Sweden,

and Venezuela refused to sign, but Nicaragua acceded
later.
§ 5686. The Declaration of London * of February The
26, 1909, concerning the Laws of Naval War, is a pure tion of
law-making treaty of the greatest importance. All London>
the ten Powers represented at the Conference of
London which produced this Declaration signed 2 it—
namely, Great Britain, Germany, the United States of
America, Austria-Hungary, Spain, France, Italy, Japan,
Holland, and Russia, but it is not yet ratified.
II
ALLIANCES
Grotius, II. c. 15— Vattel, III. §§ 78-102— Twiss, I. § 246— Taylor, §§ 347-349—
Wheaton, §§ 278-285— Bluntschli, §§ 446-449— Heffter, § 92— Geffcken in
Holtzendorff, III. pp. 115-139— Ullmann, § 82— Bonfils, Nos. 871-881—
Despagnet, No. 459— Merignhac, II. p. 683— Nys, III. pp. 554-557—
Pradier-Fodere, II. Nos. 934-967— Bivier, II. pp. 111-116— Calvo, III.
§§ 1587-1588— Fiore, II. No. 1094, and Code, Nos. 893-899— Martens, I.
§ 113— Rolin-Jaequemyns in B.I. XX. (1888), pp. 5-35— Erich, " Ueber
Allianzen und Allianzverhaltnisse nach heutigem Volkerrecht " (1907).
§•569. Alliances in the strict sense ofo«

the term are tion
concep-
of
treaties of union between two or more States for the Alliances.
purpose of defending each other against an attack in
war, or of jointly attacking third States, or for both
purposes. The term ee alliance " is, however, often
made use of in a wider sense, and it comprises in such
1 On account of the opposition to and Cruisers" (1911); Holland,
the Ratification of the Declaration of " Proposed Changes in Naval Prize
London which arose in England, the Law" (1911) ; Cohen, " The Declara-
English literature on the Declaration tion of London" (1911). See also
is already very great. The more Baty and Macdonell in the Twenty-
important books are the following :— sixth Beport (1911) of the Inter-
Bowles, " Sea Law and Sea Power " national Law Association. There
(1910) ; Baty, " Britain and Sea are also innumerable articles in
Law" (1911); Bentwich, "The periodicals.
Declaration of London " (1911) ; 2 There is no doubt that the
Bray, " British Bights at Sea " majority, if not all, of the States
(1911) ; Bate, "An Elementary concerned will in time accede to the
Account of the Declaration of Declaration of London.
London" (1911); Civis, "Cargoes
cases treaties of union for various purposes. Thus, the

so-called " Holy Alliance/' concluded in 1815 between
the Emperors of Austria and Russia and the King of
Prussia, and afterwards joined by almost all of the
Sovereigns of Europe, was a union for such vague pur-
poses that it cannot be called an alliance in the strict
sense of the term.
History relates innumerable alliances between the
several States. They have always played, and still
play, an important part in politics. At the present time
the triple alliance between Germany, Austria, and Italy
since 1879 and 1882, the alliance between Russia and
France since 1899, and that between Great Britain
and Japan since 1902, renewed in 1905 and 1911, are
illustrative examples.1
1 The following is the text of the ARTICLE I.
Anglo-Japanese treaty of Alliance of It is agreed that whenever, in the
1911 :— opinion of either Great Britain or
The Government of Great Britain Japan, any of the rights and in-
terests referred to in the preamble
and the Government of Japan, having of this Agreement are in jeopardy,
in view the important changes which the two Governments will communi-
have taken place in the situation cate with one another fully and
since the conclusion of the Anglo- frankly, and will consider in common
Japanese agreement of the 12th the measures which should be taken
August 1905, and believing that a to safeguard those menaced rights or
revision of that Agreement respond- interests.
ing to such changes would contri-
bute to general stability and repose, ARTICLE II.
have agreed upon the following
stipulations to replace the Agree- If by reason of unprovoked attack
ment above mentioned, such stipula- or aggressive action, wherever aris-
tions having the same object as the ing, on the part of any Power or
said Agreement, namely :— Powers, either High Contracting
(a) The consolidation and main- Party should be involved in war in
tenance of the general peace in the defence of its territorial rights or
regions of Eastern Asia and of India ; special interests mentioned in the
(6) The preservation of the preamble of this Agreement, the
common interests of all Powers other High Contracting Party will
in China by insuring the indepen- at once come to the assistance of
dence and integrity of the Chinese its ally, and will conduct the war
Empire and the principle of equal in common, and make peace in
opportunities for the commerce and mutual agreement with it.
industry of all nations in China 5 ARTICLE III.
(c) The maintenance of the terri-
torial rights of the High Contracting The High Contracting Parties
Parties in the regions of Eastern agree that neither of them will,
Asia and of India, and the defence without consulting the other, enter
of their special interests in the said into separate arrangements with
regions :— another Power to the prejudice of
ALLIANCES 597
§ 570. Subjects of alliances are said to be full- Parties to

Sovereign States only. But the fact cannot be denied Am'
that alliances have been concluded by States under
suzerainty. Thus, the convention of April 16, 1877,
between Roumania, which was then under Turkish
suzerainty, and Russia, concerning the passage of Russian
troops through Roumanian territory in case of war with
Turkey, was practically a treaty of alliance.1 Thus,
further, the former South African Republic, although,
at any rate according to the views of the British
Government, a half - Sovereign State under British
suzerainty, concluded an alliance with the former Orange
Free State by treaty of March 17, 1897.2
A neutralised State can be the subject of an alliance
for the purpose of defence, whereas the entrance into
an offensive alliance on the part of such State would
involve a breach of its neutrality.
§ 571. As already* mentioned, an alliance mayJ be kinds
Different
of Alliances.
the objects described in the pre- into effect immediately after the
amble of this Agreement. date of its signature, and remain in
ARTICLE IV. force- for ten years from that date.
In case neither of the High Con-
Should either High Contracting tracting Parties should have notified
Party conclude a treaty of general twelve months before the expiration
arbitration with a third Power, it is of the said ten years the intention of
agreed that nothing in this Agree- terminating it, it shall remain bind-
ment shall entail upon such Con- ing until the expiration of one year
tracting Party an obligation to go to from the day on which either of the
war with the Power with whom such High Contracting Parties shall have
treaty of arbitration is in force. denounced it. But if, when the
date fixed for its expiration arrives,
ARTICLE V. either ally is actually engaged in
The conditions under which armed war, the alliance shall, ipso facto,
assistance shall be afforded by either continue until peace is concluded.
Power to the other in the circum- In faith whereof the undersigned,
stances mentioned in the present duly authorised by their respective
Agreement, and the means by which Governments, have signed this
such assistance is to be made avail- Agreement, and have affixed thereto
able, will be arranged by the Naval their Seals.
and Military authorities of the High Done in duplicate at London, the
Contracting Parties, who will from 13th day of July 1911.
time to time consult one another
fully and freely upon all questions of
mutual interest. 1 Seel Martens, N.R.G. 2nd Ser.
ARTICLE VI. III. p. 182.
2 See Martens, N.R.G. 2nd Ser.
The present Agreement shall come XXV. p. 327.
offensive or defensive, or both. All three kinds may be

either general alliances, in which case the allies are
united against any possible enemy whatever, or par-
ticular alliances against one or more individual enemies.
Alliances, further, may be either permanent or tem-
porary, and in the latter case they expire with the
period of time for which they were concluded. As
regards offensive alliances, it must be emphasised that
they are valid only when their object is not immoral.1
Condi- § 572. Alliances may contain all sorts of conditions.
Alliances. The most important are the conditions regarding the
assistance to be rendered. It may be that assistance
is to be rendered with the whole or a limited part of
the military and naval forces of the allies, or with the
whole or a limited part of their military or with the
whole or a limited part of their naval forces only.
Assistance may, further, be rendered in money only,
so that one of the allies is fighting with his forces while
the other supplies a certain sum of money for their
maintenance. A treaty of alliance of such a kind
must not be confounded with a simple treaty of subsidy.
If two States enter into a convention that one of the
parties shall furnish the other permanently in time of
peace and war with a limited number of troops in
return for a certain annual payment, such convention
is not an alliance, but a treaty of subsidy only. But
if two States enter into a convention that in case of
war one of the parties shall furnish the other with a
limited number of troops, be it in return for payment
or not, such convention really constitutes an alliance.
For every convention concluded for the purpose of
lending succour in time of war implies an alliance.
It is for this reason that the above-mentioned 2 treaty
of 1877 between Kussia and Roumania concerning
the passage of Russian troops through Roumanian
1 See above, § 505. 2 See above, § 570.
TREATIES OF GUARANTEE AND OF PROTECTION 599
territory in case of war against Turkey was really a

treaty of alliance.
§ 573. Casus fcederis is the event upon the occur-
rence of which it becomes the duty of one of the allies Foederi*'
to render the promised assistance to the other. Thus
in case of a defensive alliance the casus fader is occurs
when war is declared or commenced against one of the
allies. Treaties of alliance very often define precisely
the event which shall be the casus jfcederis. and then
the latter is less exposed to controversy. But, on the
other hand, there have been many alliances concluded
without such specialisation, and, consequently, disputes
have arisen later between the parties as to the casus
fcederis.
That the casus faderis is not influenced by the fact
that a State, subsequent to entering into an alliance,
concludes a treaty of general arbitration with a third
State, has been pointed out above, § 522.
Ill
TREATIES OF GUARANTEE AND OF PROTECTION
Vattel, II. §§ 235-239— Hall, § 113— Phillimore, II. §§ 56-63— Twiss, I. § 249—
Halleck, I. p. 285— Taylor, §§ 350-353— Wheaton, § 278— Bluntschli, §§
430-439— Heffter, § 97— Geffcken in Holtzendorff, III. pp. 85-112—
Liszt, § 22— Ullmann, § 83— Fiore, Code, Nos. 787-791— Bonfils, Nos.
882-893— Despagnet, No. 461— Merignhac, II. p. 681— Nys, III. pp. 36-
41— Pradier-Fodere, II. Nos. 969-1020— Rivier, II. pp. 97-105— Calvo,
III. §§ 1584-1585— Martens, I. § 115— Neyron, " Essai historique et
politique sur les garanties " (1779) — Milovanovitch, " Des traites de
garantie en droit international" (1888)— Erich, '* Ueber Allianzen und
Allianzverhaltnisse nach heutigem Volkerrecht " (1907)— Quabbe, "Die
volkerrechtliche Garantie" (1911).
§ 574. Treaties of guarantee are conventions by concep

which one of the parties engages to do what is in its
power to secure a certain object to the other party.
Guarantee treaties may be mutual or unilateral. They
may be concluded by two States only, or by a number
of States jointly, and in the latter case the single guar-

antors may give their guarantee severally or collectively
or both. And the guarantee may be for a certain period
of time only or permanent.
The possible objects of guarantee treaties are
numerous.1 It suffices to give the following chief
examples : the performance of a particular act on
the .part of a certain State, as the discharge of a debt
or the cession of a territory ; certain rights of a State ;
the undisturbed possession of the whole or a particular
part of the territory ; a particular form of Constitution ;
a certain status, as permanent neutrality 2 or indepen-
dence 3or integrity 4 ; a particular dynastic succession ;
the fulfilment of a treaty concluded by a third State.
Effect of § 575. The effect of guarantee treaties is the creation
GuearanS-°f °f the duty of the guarantors to do what is in their
tee. power in order to secure the guaranteed objects. The
compulsion to be applied by a guarantor for that pur-
pose depends upon the circumstances ; it may eventually
be war. But the duty of the guarantor to render, even
by compulsion, the promised assistance to the guaranteed
depends upon many conditions and circumstances.
Thus, first, the guaranteed must request the guarantor
to render assistance. When, for instance, the pos-
session of a certain part of its territory is guaranteed
to a State which after its defeat in a war with a third
1 The important part that treaties Cuba by the Treaty of Havana of
of guarantee play in politics may be May 22, 1903 (Martens, N.R.G. 2nd
seen from a glance at Great Britain's Ser. XXXII. p. 79), and of Panama
guarantee treaties. See Munro, by the Treaty of Washington of
"England's Treaties of Guarantee," November 18, 1903 (Martens, N.R.G.
in The Law Magazine and Review, VI. 2nd Ser. XXXI. p. 599).
(1881), pp. 215-238. * Thus the integrity of Norway is
2 See above, § 95. guaranteed by Great Britain, Ger-
8 Thus Great Britain, France, and many, France, and Russia by the
Russia have guaranteed, by the Treaty of Christiania of November 2,
Treaty with Denmark of July 13, 1907; see Martens, NRG. 3rd Ser.
1863, the independence (but also the II. p. 9. A condition of this integ-
monarchy) of Greece (Martens, rity is that Norway does not cede
N.R.G. XVII. Part. II. p. 79). The any part of her territory to any
United States of America has foreign Power,
guaranteed the independence of
TREATIES OF GUARANTEE AND OP PROTECTION 601
State agrees as a condition of peace to cede such piece

of territory to the victor without having requested the
intervention of the guarantor, the latter has neither a
right nor a duty to interfere. Thus, secondly, the
guarantor must at the critical time be able to render
the required assistance. When, for instance, its hands
are tied through waging war against a third State, or
when it is so weak through internal troubles or other
factors that its interference would expose it to a serious
danger, it is not bound to fulfil the request for assist-
ance. So too, when the guaranteed has not complied
with previous advice given by the guarantor as to the
line of itsassistance
to render behaviour, it is not the guarantor's duty
afterwards.
It is impossible to state all the circumstances and
conditions upon which the fulfilment of the duty of the
guarantor depends, as every case must be judged upon
its own merits. And it is certain that, more frequently
than in other cases, changes in political constellations
and the general developments of events may involve
such vital change of circumstances as to justify J a
State in refusing to interfere in spite of a treaty
of guarantee. It is^ for this reason that treaties of
guarantee to secure permanently a certain object to a
State are naturally of a more or less precarious value
to the latter. The practical value, therefore, of a
guarantee treaty, whatever may be its formal character,
would as a rule seem to extend to the early years only
of its existence while the original conditions still obtain.
§ 576. In contradistinction to treaties constituting Effect of
a guarantee on the part of one or more States severally, Guaran-ve
the effect of treaties constituting a collective guarantee tee-
on the part of several States requires special considera-
tion. On June 20, 1867, Lord Derby maintained 2 in
the House of Lords concerning the collective guarantee
1 See above, § 539. 2 Hansard, vol. 183, p. 150.
by the Powers of the neutralisation of Luxemburg that

in case of a collective guarantee each guarantor had
only the duty to act according to the treaty when all
the other guarantors were ready to act likewise ; that,
consequently, if one of the guarantors themselves
should violate the neutrality of Luxemburg, the duty
to act according to the treaty of collective guarantee
would not accrue to the other guarantors. This opinion
is certainly not correct,1 and I do not know of any
publicist who would or could approve of it. There
ought to be no doubt that in a case of collective guarantee
one of the guarantors alone cannot be considered bound
to act according to the treaty of guarantee. For a
collective guarantee can have the meaning only that
the guarantors should act in a body. But if one of the
guarantors themselves violates the object of his own
guarantee, the body of the guarantors remains, and
it is certainly their duty to act against such faithless
co-guarantor. If, however, the majority,2 and there-
fore the body of the guarantors, were to violate the
very object of their guarantee, the duty to act against
them would not accrue to the minority. •
Different, however, is the case in which a number of
Powers have collectively and severally guaranteed a certain
object. Then, not only as a body but also individually,
it is their duty to interfere in any case of violation of
the object of guarantee.
Pseudo- § 576a. Different from real Guarantee Treaties are
Guaran-
tees. such treaties as declare the policy of the parties with
regard to the maintenance of their territorial status quo.
Whereas treaties guaranteeing the maintenance of the
territorial status quo engage the guarantors to do what
they can to maintain such status quo, treaties declaring
the policy of the parties with regard to the maintenance
1 See Hall, § 113; Bluntschli, § 2 See against this statement
440; and Quabbe, op. cit. pp. 149-159. Quabbe, op. cit. p. 158.
TREATIES OF GUARANTEE AND OF PROTECTION 603
of their territorial status quo do not contain any legal

engagements, but simply state the firm resolution of
the parties to uphold the status quo. In contradistinc-
tion to real guarantee treaties, such treaties declaring
the policy of the parties may fitly be called Pseudo-
Guarantee Treaties, and although their political value
is very great, they have scarcely any legal importance.
For the parties do not bind themselves to pursue a
policy for maintaining the status quo, they only declare
their firm resolution to that end. Further, the parties
do not engage themselves to uphold the status quo, but
only to communicate with one another, in case the
status quo is threatened, with a view to agreeing upon
such measures as they may consider advisable for the
maintenance of the status quo. To this class of pseudo-
guarantee treaties belong :-—
(1) The Declarations l exchanged on May 16, 1907,
between France and Spain on the one hand, and, on
the other hand, between Great Britain and Spain, con-
cerning the territorial status quo in the Mediterranean.
Each party declares that its general policy with regard
to the Mediterranean is directed to the maintenance of
the territorial status quo, and that it is therefore resolved
to preserve intact its rights over its insular and maritime
possessions within the Mediterranean. Each party de-
clares, further, that, should circumstances arise which
would tend to alter the existing territorial status quo,
it will communicate with the other party in order to
afford it the opportunity to concert, if desired, by
mutual agreement the course of action which the two
parties "shall adopt in common.
(2) The Declarations 2 concerning the maintenance
of the territorial status quo in the North Sea, signed at
Berlin on April 23, 1908, by Great Britain, Germany,
1 See Martens, N.K.G-. 2nd Ser. 2 See Martens, N.R.G. 3rd Ser. I.
XXXV. p. 692, and 3rd Ser. I. p. 3. pp. 17 and 18.
Denmark, France, Holland, and Sweden, and concerning

the maintenance of the territorial status quo in the
Baltic, signed at St. Petersburg, likewise on April 23,
1908, by Germany, Denmark, Russia, and Sweden. The
parties declare their firm resolution to preserve intact
the rights of all the parties over their continental and
insular possessions within the region of the North Sea,
and of the Baltic respectively. And the parties con-
cerned further declare that, should the present terri-
torial status quo be threatened by any events whatever,
they will enter into communication with one another
with a view to agreeing upon such measures as they
may consider advisable in the interest of the mainte-
nance of the status quo.
There is no doubt that the texts of the Declarations
concerning the status quo in the North Sea and the
Baltic stipulate a stricter engagement of the respective
parties than the texts of the Declarations concerning
the status quo in the Mediterranean, but neither 1 of
them comprises a real legal guarantee.
Treaties § 577. Different from guarantee treaties are treaties
tion. of protection. Whereas the former constitute the
guarantee of a certain object to the guaranteed, treaties
of protection are treaties by which strong States simply
engage to protect weaker States without any guarantee
whatever. A treaty of protection must, however, not
be confounded with a treaty of protectorate.2
1 Whereas Quabbe (p. 97, note 1), (p. 105) considers the Declarations
correctly denies the character of a concerning the North Sea and the
real guarantee to the Declarations Baltic real Guarantee Treaties,
concerning the Mediterranean, he a See above, § 92.
COMMERCIAL TREATIES 605
IV
COMMERCIAL TREATIES
Taylor, 354— Moore, V. §§ 7G5-769— Melle in Holtzendorff, III. pp. 143-256

—Liszt, § 28— Ullmann, § 145— Bonfils, No. 918— Despagnet, No. 462—
Pradier-Fodere, IV. Nos. 2005-2033— Merignhac, II. pp. 688-693—
Rivier, I. pp. 370-374— Fiore, II. Nos. 1065-1077, and Code, Nos. 848-
854— Martens, II. §§ 52-55— Steck, " Versuch iiber Handels- nnd
Schiffahrtsvertrage " (1782)— Schraut, "System der Handelsvertrage
und der Meistbegiinstigung " (1884)— Veillcovitch, " Les trait^s de
commerce" (1892) — Nys, "Les origines du droit international" (1894),
pp. 278-294— Herod, "Favoured Nation Treatment" (1901) — Calwer,
" Die Meistbegiinstigung in den Vereinigten Staaten von Nord-America "
(1902)— Glier, "Die Meistbegiinstigungs-Klausel " (1906)— Cavaretta,
" La clausola della natiozione piu favorita" (1906) — Barclay, " Problems
of International Law and Diplomacy " (1907), pp. 137-142 — Hornbeck,
"The Most-Favoured Nation Clause" (1910), and in A.J. III. (1909), pp.
394-422, 619-647, and 798-827— Lehr in H.I. XXV. (1893), pp. 313-316—
Visser in R.I. 2nd Ser. IV. (1902), pp. 66-87, 159-177, and 270-280— Lehr
in R.I. 2nd Ser. XII. (1910), pp. 657-668— Shepheard in The Journal of
the Society of Comparative Legislation, New Series, III. (1901), pp.
231-237, and V. (1903), pp. 132-136— Oppenheim in The Law Quarterly
Revieio, XXIV. (1908), pp. 328-334.
§ 578. Commercial treaties are treaties concerning com-

the commerce and navigation of the contracting States Treaties in
and concerning the subjects of these States who are General-
engaged in commerce and navigation. Incidentally, how-
ever, they also contain clauses concerning consuls and
various other matters. They are concluded either for a
limited or an unlimited number of years, and either for
the whole territory of one or either party or only for a
part of such territory — e.g., by Great Britain for the
United Kingdom alone, or for Canada alone, and the
like. All full-Sovereign States are competent to enter
into commercial treaties, but it depends upon the
special case whether half- and part-Sovereign States are
likewise competent. Although competent to enter upon
commercial treaties, a State may, by an international
compact, be restricted in its freedom with regard to
its commercial policy. Thus, according to articles 1
to 5 of the General Act of the Berlin Congo Conference
of February 26, 1885, all the Powers which have posses-

sions in the Congo district must grant complete freedom
of commerce to all nations. Again, to give another ex-
ample, France and Germany are by article 11 of the
Peace of Frankfort of May 10, 1871, compelled to grant
one another most-favoured-nation treatment in their
commercial relations, in so far as favours which they
grant to Great Britain, Belgium, Holland, Switzerland,
Austria, and Eussia are concerned.
The details of commercial treaties are for the most
part purely technical and are, therefore, outside the
scope of a general treatise on International Law. There
are, however, two points of great importance which
require discussion — namely, the meaning of coasting
trade and of the most-favoured-nation clause.
Meaning
of Coast-
8 579.•lax' The meaning of theA. T_
term coasting-
£
trade-.1 1 »Ain
i -i
ing Trade commercial treaties must not be confounded with its
merciai" meaning in International Law generally. The meaning
Treaties. of the term in International Law becomes apparent
through its synonym cabotage — that is, navigation from
cape to cape along the coast combined with trading
between the ports of the coast concerned without going
out into the Open Sea. Therefore, trade between Mar-
seilles and Nice, between Calais and Havre, between
London and Liverpool, and between Dublin and Belfast
is coasting- trade, but trade between Marseilles and
Havre, and between London and Dublin is not. It is a
universally recognised rule 2 of International Law that
every littoral State can exclude foreign merchantmen
from the cabotage within its maritime belt. Cabotage
is the contrast to the over-sea 3 carrying trade, and has
1 See Oppenheim in The Law successively — for instance, from
Quarterly Review, XXIV. (1908), pp. Dover to Calais and then to Havre—
328-334. is not coasting-trade but over-sea
2 See above, § 187. trade, provided that all the pas-
8 It must be emphasised that navi- sengers and cargo are shipped from
gation and trade from abroad to abroad,
several ports of the same coast
nothing to do with the question of free trade from or

to a port on the coast to or from a port abroad. This
question is one of commercial policy, and International
Law does not prevent a State from restricting to
vessels of its subjects the export from or the import
to its ports, or from allowing such export or import
under certain conditions only.
There is no doubt that originally the meaning of
coasting-trade in commercial treaties was identical with
its meaning in International Law generally, but there
is likewise no doubt that the practice of the States
gives now a much more extended meaning to the term
coasting- trade as used in commercial treaties. Thus
France distinguishes between cabotage petit and grand ;
whereas petit cabotage is coasting-trade between ports
in the same sea, grand cabotage is coasting-trade be-
tween aFrench port situated in the Atlantic Ocean and
a French port situated in the Mediterranean, and —
according to a statute of September 21, 1793 — both
grand and petit cabotage are exclusively reserved for
French vessels. Thus, further, the United States of
America has always considered trade between one of
her ports in the Atlantic Ocean and one in the Pacific
to be coasting- trade, and has exclusively reserved it for
vessels of her own subjects; she considers such trade
coasting-trade even when the carriage takes place not
exclusively by sea around Cape Horn, but partly by
sea and partly by land through the Isthmus of Panama.
Great Britain has taken up a similar attitude. Section
2 of the Navigation Act of 1849 (12 & 13 Viet. c. 29)
enacted " that no goods or passengers shall be carried
coastwise from one part of the United Kingdom to an-
other, or from the Isle of Man to the United Kingdom,
except in British ships," and thereby declared trade
between a port of England or Scotland to a port of Ire-
land or the Isle of Man to be coasting-trade exclusively
reserved for British ships in spite of the fact that the

Open Sea flows between these ports. And although
the Navigation Act of 1849 is no longer in force, and
this country now does admit foreign ships to its coasting-
trade, it nevertheless still considers all trade between
one port of the United Kingdom and another to be
coasting-trade, as becomes apparent from Section 140
of the Customs Laws Consolidation Act of July 24, 1876
(39 & 40 Viet. c. 36). Again, Germany declared by a
statute of May 22, 1881, coasting-trade to be trade
between any two German ports, and reserved it for
German vessels, although vessels of such States can be ad-
mitted as on their part admit German vessels to their own
coasting- trade. Thus trade between Koenigsberg in the
Baltic and Hamburg in the North Sea is coasting- trade.
These instances are sufficient to demonstrate that
an extension of the original meaning of coasting-trade
has really taken place and has found general recogni-
tion. A great many commercial treaties have been
concluded between such countries as established that
extension of meaning and others, and these commercial
treaties no doubt make use of the term coasting-trade
in this its extended meaning. It must, therefore, be
maintained that the term coasting-trade or cabotage as
used in commercial treaties has acquired the following
meaning : Sea-trade between any two ports of the same
country whether on the same coast or different coasts,
provided always that the different coasts are all of them
the coasts of one and the same country as a political and
geographical unit in contradistinction to the coasts of
Colonial dependencies of such country.
In spite of this established extension of the term
coasting-trade, it did not include colonial trade until
nearly the end of the nineteenth century.1 Indeed,
1 See details in Oppenheim, loc. cit. a statute of April 9, 1866, had
pp. 331-332, but it is of value to thrown open the trade between
draw attention here to a French France and Algeria to vessels of all
statute of April 2, 1889. Whereas nations, article 1 of the statute of
when Russia, by ukase of 1897, enacted that trade

between any of her ports should be considered coast-
ing trade and be reserved for Russian vessels, this did
not comprise a further extension of the conception
of coasting-trade. The reason is that Russia, although
her territory extends over different parts of the globe,
is a political and geographical unit, and there is one
stretch of territory only between St. Petersburg and
Vladivostock. But when, in 1898 and 1899, the United
States of America declared trade between any of her
ports and those of Porto Rico, the Philippines, and the
Hawaiian Islands to be coasting-trade, and conse-
quently reserved it exclusively for American vessels,
the distinction between coasting-trade and over-sea or
colonial trade fell to the ground. It is submitted that
this American extension of the conception of coasting-
trade as used in her commercial treaties before 1898 is
inadmissible * and contains a violation of the treaty
rights of the other contracting parties. Should these
parties consent to the American extension of the mean-
ing of coasting-trade, and should other countries follow
the American lead and apply the term coasting-trade
indiscriminately to trade along their coasts and to
their colonial trade, the meaning of the term would
April 2, 1889, enacts : La navigation that, if France had declared trade
entre la France et VAlgerie tie pourra between French and Algerian ports
s'effectuer que sous pavilion franpais. to be coasting-trade in the meaning
This French statute does not, as is of her commercial treaties, the ex-
frequently maintained, declare the piration of the treaties with Belgium
trade between France and Algeria to and Spain need not have been
be coasting- trade, but it nevertheless awaited for putting the law of April
reserves such trade exclusively for 2, 1889, into force.
French vessels. The French Govern- 1 In the case of Huus v. New York
ment, in bringing the bill before the and Porto Rico Steamship Co. (1901),
French Parliament, explained that 182 United States 392, the Court was
the statute could not come into compelled to confirm the extension
force before February 1, 1892, be- of the term coasting-trade to trade
cause art. 2 of the treaty with between any American port and
Belgium of May 14, 1882, and art. Porto Rico, because this extension
21 of the treaty with Spain of was recognised by section 9 of the
February 6, 1882 — both treaties to Porto Rican Act, and because in
expire on February 1, 1892— stipu- case of a conflict between Municipal
lated the same treatment for Belgian and International Law— see above,
and Spanish as for French vessels, § 21 — the Courts are bound to apply
cabotage excepted. It is quite apparent their Municipal Law.
VOL. I. 2 Q
then become trade between any two ports which are under
the sovereignty of the same State. The distinction be-
tween coasting-trade and colonial trade would then
become void, and the last trace of the synonymity be-
tween coasting-trade and cabotage would have dis-
appeared.
Meaning § 580. Most of the commercial treaties of the nine-
fayoured- teen^h century contain a stipulation which is character-
Clause *se(^ as ê most-favoured-nation clause. The wording
of this clause is by no means the same in all treaties,
and its general form has therefore to be distinguished
from several others which are more specialised in their
wording. According to the most-favoured-nation clause
in its general form, all favours which either contracting
party has granted in the past or will grant in the future
to any third State must be granted to the other party.
But the real meaning of this clause in its general form
has ever been controverted since the United States of
America entered into the Family of Nations and began
to conclude commercial treaties embodying the clause.
Whereas in former times the clause was considered
obviously to have the effect of causing all favours
granted to any one State at once and unconditionally
to accrue to all other States having most-favoured-
nation treaties with the grantor, the United States con-
tended that these favours could accrue to such of the
other States only as fulfilled the same conditions under
which these favours had been allowed to the grantee.
The majority of the commercial treaties of the United
States, therefore, do not contain the most-favoured-
nation clause in its general form, but in what is called
its conditional, qualified, or reciprocal, form. In this form
it stipulates that all favours granted to third States shall
accrue to the other party unconditionally, in case the
favours have been allowed unconditionally to the
grantee, but only under the same compensation, in case
they have been granted conditionally. The United

States, however, has always upheld the opinion, and
the supreme Court of the United States has confirmed l
this interpretation, that, even if a commercial treaty
contains the clause in its general, and not in its qualified,
form, it must always be interpreted as though it were
worded in its qualified form.
Now nobody doubts that according to the qualified
form of the clause a favour granted to any State can
only accrue to other States having most-favoured-
nation treaties with the grantor, provided they fulfil
the same conditions and offer the same compensations
as the grantee. Again, nobody doubts that, if the
clause is worded in its so-called unconditional form
stipulating the accrument of a favour to other States
whether it was allowed to the grantee gratuitously or
conditionally against compensation, all favours granted
to any State accrue immediately and without condition
to all the other States. However, as regards the clause
in its general form, what might, broadly speaking, be
called the European is confronted by the American
interpretation. This American interpretation is, I be-
lieve, unjustifiable, although it is of importance to
mention that two European writers of such authority
as Martens (II. p. 225) and Westlake (I. p. 283) approve
of it.
It has been suggested 2 that the controversy should
be brought before the Hague Court of Arbitration, yet
the United States will never consent to this. Those
States which complain of the American interpretation
had therefore better notify their commercial treaties
with the United States and insert in new treaties the
most-favoured-nation clause in such a form as puts
matters beyond all doubt. So much is certain, a State
1 See Bartram v. Robertson, 122 2 See Barclay, op. cit. pp. 142 and
United States 116, and Whitney v. 159.
Robertson, 124 United States 190. j
that at present enters upon a commercial treaty with

the United States comprising the clause in its general
form cannot complain l of the American interpretation,
which, whatever may be its merits, is now a matter of
common knowledge.2
UNIONS CONCERNING COMMON NON-POLITICAL

INTERESTS
Nys, II. pp. 264-270— Merignhac, II. pp. 694-731— Descamps, " Les offices
internationaux et leur avenir" (1894)— Moynier, "Les Bureaux
internationaux des unions universelles " (1892) — Poinsard, " Les
Unions et ententes Internationales" (2nd ed. 1901)— Renault in R.G-
III. (1896), pp. 14-26— Reinsch, "Public International Unions" (1911),
and in A.J. I. pp. 579-623, and III. pp. 1-45.
object of § 581. The development of international intercourse

Unions, has called into existence innumerable treaties for the
purpose of satisfying economic and other non-political
interests of the several States. Each nation con-
cludes treaties of commerce, of navigation, of extradi-
tion, and of many other kinds with most of the other
nations, and tries in this way, more or less successfully,
to foster its own interests. Many of these interests
are of such a particular character and depend upon such
individual circumstances and conditions that they can
only be satisfied and fostered by special treaties from
time to time concluded by each State with other States.
Yet experience has shown that the several States
have also many non-political interests in common
which can better be satisfied and fostered by a general
treaty between a great number of States than by special
1 See above, § 554, No. 9. must be referred for further infor-
8 It is not possible in a general mation to the works and articles of
treatise on International Law to Calwer, Herod, Glier, Cavaretta,
enter into the details of the history, Visser, Melle, and others quoted
the different forms, the application, above before § 578. See also Moore,
and the interpretation of the most- V. §§ 765-769,
favoured-nation clause. Readers
UNIONS CONCERNING NON-POLITICAL INTERESTS 613
treaties singly concluded between the several parties.

Therefore, since the second half of the nineteenth
century, such general treaties have more and more come
into being, and it is certain that their number will in
time increase. Each of these treaties creates what is
called a Union among the contracting parties, since
these parties have united for the purpose of settling
certain subjects in common. The number of States
which are members of these Unions varies, of course,
and whereas some of them will certainly become in
time universal in the same way as the Universal Postal
Union, others will never reach that stage. But all
the treaties which have created these Unions are general
treaties because a lesser or greater number of States
are parties, and these treaties have created so-called
Unions, although the term " Union " is not always
made use of.1
§ 582. Whereas previously the States severally Post and
concluded treaties concerning postal and telegraphic graphs,
arrangements, they entered into Unions for this
purpose during the second part of the nineteenth
century :—
(1) Twenty-one States entered on October 9, 1874,
at Berne, into a general postal convention 2 for the
purpose of creating a General Postal Union. This
General turned into the Universal Postal Union through
the Convention of Paris 3 of June 1, 1878, to which
thirty States were parties. This convention has several
times been revised by the congresses of the Union,
which have to meet every five years. The last revision
took place at the Congress of Home, 1906, where, on
1 A general treatise on Public three volumes, and of which the
International Law cannot attempt to first volume appeared in 1910. See
rinto the details of these Unions ; also Reinsch, " Public International
is really a matter for mono- Unions" (1911).
graphs or for a treatise on Inter- 2 See Martens, N.R.G. 2nd Ser. I.
national Administrative Law, such p. 651,
as Neumayer's " Internationales Ver- 3 See Martens, N.R.G. 2nd Ser.
waltungsrecht," which is to comprise III. p. 699.
May 26, a new Universal Postal Convention 1 was

signed by all the members of the Family of Nations for
themselves and their colonies and dependencies. This
Union possesses an International Office seated at Berne.2
(2) A general telegraphic convention was concluded
at Paris already on May 17, 1865, and in 1868 an
International Telegraph Office 3 was instituted at Berne.
In 'time more and more States joined, and the basis of
the Union is now the Convention of St. Petersburg 4
of July 22, 1875, which has been amended several times,
the last time at Lisbon on June 11, 1908. That the
Union will one day become universal there is no doubt,
but as yet, although called " Universal " Telegraphic
Union, only about thirty States are members.
(3) Concerning the general treaty of March 14, 1884,
for the protection of submarine telegraph cables,5 see
above, § 287.
(4) A general radio-telegraphic convention 6 was
signed by twenty-seven States on November 3, 1906,
at Berlin. This Union has an International Office at
Berne which is combined with that of the Universal
Telegraph Union.
Transport § 583. Two general conventions are in existence in
rSfnica-m the interest of transport and communication :—
tion. (1) A general convention 7 was concluded on October
14, 1890, at Berne concerning railway transports and
freights. The parties — namely, Austria-Hungary, Bel-
gium, France, Germany, Holland, Italy, Luxemburg,
Russia, and Switzerland — form a Union for this pur-
pose, although the term " Union " is not made use of.
1 See Martens, N.R.G. 3rd Ser. I. * See Martens, N.R.G. 2nd Ser.
p. 355. III. p. 614.
a See Fischer, " Post und Tele- 6 See Martens, N.R.G. 2nd Ser.
graphic im Weltverkehr " (1879) ; XI. p. 281.
Schroter, " Der Weltpostverein " 6 See Martens, N.R.G. 3rd Ser.
(1900) ; Rolland, "De la correspon- III. p. 147, and above, § 174, No. 2,
dance postale et tlldgraphique dans and §§ 287a and 2876, where the
les relations internationales " (1901). literature concerned is also to be
3 See above, § 464, and Fischer found.
"Die Telegraphic und das Volker- 7 See Martens. N.R.G. 2nd Ser.
recht " (1876). XIX. p. 289.
The Union possesses an International Office 1 at Berne,

which issues the Zeitschrift fur den internationalen
Eisenbahn transport and the Bulletin des transports
internationaux par chemins de fer. Denmark, Rou-
mania, and Sweden acceded to this Union some time
after its conclusion.
(2) A general convention concerning the Interna-
tional Circulation of Motor Vehicles 2 was concluded on
October 11, 1909, at Paris. The original signatory
Powers were :— Great Britain, Germany, Austria-Hun-
gary, Belgium, Bulgaria, Spain, France, Greece, Italy,
Monaco, Montenegro, Holland, Portugal, Roumania,
Russia, Servia ; but Greece, Montenegro, Portugal, and
Servia have not yet ratified. Luxemburg, Sweden, and
Switzerland acceded later on. To give effect to this
convention in Great Britain, Parliament passed in 1909
the Motor Car (International Circulation) Act,3 9 Edw.
VII. c. 37.
§ 584. On September 9, 1886, the Convention of
Berne was signed for the purpose of creating an inter-
national Union for the Protection of Works of Art and
Literature. The Union has an International Office4
at Berne. An additional Act to the convention was
signed at Paris on May 4, 1906. Since, however, the
stipulations of these conventions did not prove quite
adequate, the " Revised 5 Berne Convention " was
signed at Berlin on November 13, 1908. The parties
1 See above, § 470, and Kaufmann, * See above, § 467, and Orelli,
"DiemitteleuropaischenEisenbahnen " Der Internationale Schutz des
und das Internationale offentliche Urheberrechts " (1887); Thomas,
Recht" (1893); Bosenthal, "Inter- "La convention litte"raire et artis-
nationales Eisenbahnfrachtrecht " tique Internationale, &c." (1894);
(1894) ; Magne, "Des raccordements Briggs, "The Law of International
internationaux de chemins defer,&c." Copyright" (1906); Rothlisberger,
(1901); Eger, "Das den
Uebereinkommeniiber internationale
Eisenbahn- "Die
Schutze Berner Ubereinkunft
von Werken zum
der Literatur
frachtverkehr " (2nd ed. 1903). und Kunst " (1906).
2 See Martens, N.R.G. 3rd Ser. 5 See Martens, N.R.G. 3rd Ser. IV.
III. p. 834, and Treaty Series, 1910, p. 590 ; Wauwermans, " La con-
No. 19. vention de Berne (revise'e b, Berlin)
3 See also the Motor Car (Inter- pour la protection des oeuvres
national
1910. Circulation) Order in Council, litte"raires et artistiques " (1910).
are Great Britain, Germany, Belgium, Denmark, Spain,

France, Haiti, Italy, Japan, Liberia, Luxemburg,
Monaco, Norway, Sweden, Switzerland, Tunis ; but
Denmark, France, Italy, Sweden, and Tunis have not
yet ratified. Portugal acceded later. To give effect
to the Convention of Berne of 1886, Parliament passed
in 1886 the " Act to amend the Law respecting Inter-
national and Colonial Copyright " (49 & 50 Viet. c. 33).
This Act, however, was, in consequence of the " Re-
vised Berne Convention " of Berlin of 1908, repealed
by section 37 of the Copyright Act, 1911 (1 Geo. V. c. 00),
and sections 30 and 31 of the latter Act now deal with
International Copyright.
commerce § 585. In the interests of commerce and industry
industry, three Unions are in existence :—
(1) On July 5, 1890, the Convention of Brussels was
signed for the purpose of creating an international
Union for the Publication of Customs Tariffs.1 The
Union has an International Office 2 at Brussels, which
publishes the customs tariffs of the various States of
the globe. The members of the Union are at present
the following States :— Great Britain, Germany, Argen-
tina, Austria-Hungary, Belgium, Bolivia, Brazil, Bul-
garia, Chili, China, Colombia, Costa Rica, Cuba, Den-
mark, San Domingo, Ecuador, Egypt, France, Greece,
Guatemala, Haiti, Holland, Honduras, Italy, Japan,
Mexico, Nicaragua, Norway, Panama, Paraguay, Persia,
Peru, Portugal, Roumania, Russia, Salvador, Servia,
Siam, Spain, Sweden, Switzerland, Turkey, the United
States of America, Uruguay, and Venezuela.
(2) On March 20, 1883, the Convention of Paris3
was signed for the purpose of creating an international
Union for the Protection of Industrial Property. The
original members were :— Belgium, Brazil, San Do-
1 See Martens, N.R.G. 2nd Ser. 8 See Martens, N.R.G. 2nd Ser.
XVIII. p. 558. X. p. 133.
mingo, France, Holland, Guatemala, Italy, Portugal,

Salvador, Servia, Spain, and Switzerland. Great
Britain, Japan, Denmark, Mexico, the United States of
America, Sweden-Norway, Germany, Cuba, and Austria-
Hungary acceded later. This Union has an International
Office * at Berne. The object of the Union is the pro-
tection ofpatents, trade-marks, and the like. On April
14, 1891, at Madrid, this Union agreed to arrangements
concerning false indications of origin and the registra-
tion of trade-marks 2 ; and an additional Act 3 was
signed at Brussels on December 14, 1900. These
later arrangements, however, are accepted only by
certain States of the Union ; Great Britain, for instance,
is a party to the former but not to the latter.
(3) On March 5, 1902, the Convention of Brussels 4
was signed concerning the abolition of bounties on the
production and exportation of sugar. The original
parties were :— Great Britain, Austria-Hungary, Bel-
gium, France, Germany, Holland, Italy, Spain, and
Sweden ; but Spain has never ratified. Luxemburg, Peru,
and Russia acceded later. A Permanent Commis-
sion 5was established at Brussels for the purpose of super-
vising the execution of the convention. An additional
Act 6 was signed at Brussels on August 28, 1907.
§ 586. Three general conventions are in existence in Agricui-
the interest of Agriculture :—
(1) On June 7, 1905, the Convention for the Creation
of an International Agricultural Institute 7 was signed
at Rome by forty States. The Institute has its seat
at Rome.
1 See above, § 467. * See Martens, N.R.G. 2nd Ser.
2 See Martens, N.R.G. 2nd Ser. XXXI. p. 272, and Kaufmann, " Welt-
XXII. p. 208, and Pelletier et Vidal- Zucker Industrie und Internationales
Noguet, "La convention d'union und coloniales Recht" (1904).
pour la protection de la proprie^ 6 See above, §§ 462 and 471.
industrielle du 20 mars 1883 et les 6 See Martens, N.R.G. 3rd Ser. I.
conferences de revision posterieures " p. 874.
(1902). 7 See above, § 471a, and Martens,
8 See Martens, N.R.G. 2nd Ser. N.R.G. 3rd Ser. II. p. 238, and
XXX. p. 475. Treaty Series, 1910, No. 17.
(2) Owing to the great damage done to grapes

through, phylloxera epidemics a general convention 1
for the prevention of the extension of such epidemics
was concluded on September 17, 1878, at Berne. Its
place was afterwards taken by the convention 2 signed
at Berne on November 3, 1881. The original members
were :— Austria-Hungary, France, Germany, Portugal,
and Switzerland. Belgium, Italy, Spain, Holland,
Luxemburg, Roumania, and Servia acceded later.
(3) On March 19, 1902, a general convention 3 was
signed at Paris concerning the preservation of birds
useful to agriculture. The parties are :— Germany,
Austria-Hungary, Belgium, Spain, France, Greece,
Luxemburg, Monaco, Norway, Portugal, Sweden, Swit-
zerland.
Welfare § 587. Two general treaties are in existence with
°ngWork~ regard to the welfare of the working classes :—
classes. (l) On September 26, 1906, was signed at Berne a
convention4 concerning the prohibition of the use of
white phosphorus in the manufacture of matches. The
original parties were :— Germany, Denmark, France,
Holland, Luxemburg, Switzerland. Great Britain,
Italy, Spain, and Tunis acceded later. To give effect
to this convention in Great Britain, Parliament passed
in 1908 the White Phosphorus Matches Prohibition Act
(8 Edw. VII. c. 42).
(2) Likewise at Berne on September 26, 1906, was
signed the convention5 for the prohibition of night-
work for women in industrial employment. The original
parties are :— Great Britain, Germany, Austria-Hungary,
Belgium, Spain, France, Luxemburg, Holland, Portugal,
and Switzerland. Italy and Sweden, which had signed
1 See Martens, N.R.G. 2nd Ser. * See Martens, N.R.G. 3rd Ser.
VI. p. 261. II. p. 872, and Treaty Series, 1909,
8 See Martens, N.R.G. 2nd Ser. No. 4.
VIII. p. 435. 5 See Martens, N.R.G. 3rd Ser. II.
3 See Martens, N.R.G. 2nd Ser. p. 861, and Treaty Series, 1910, No.
XXX. p. 686. 21.
the convention, but had not ratified in time, acceded

in 1910.
§ 588. One Union concerning weights and measures Weights,
and two monetary Unions are in existence.
(1) In the interest of the unification and improve-
ment of the metric system a general convention ] was
signed at Paris on May 20, 1875, for the purpose of
instituting at Paris an International Office 2 of Weights
and Measures. The original parties were :— Argentina,
Austria-Hungary, Belgium, Brazil, Denmark, France,
Germany, Italy, Peru, Portugal, Eussia, Spain,
Sweden-Norway, Switzerland, Turkey, the United States
of America, and Venezuela ; but Brazil has never
ratified. Great Britain, Japan, Mexico, Roumania, and
Servia acceded later.
(2) On December 23, 1865, Belgium, France, Italy,
and Switzerland signed the Convention of Paris which
created the so-called " Latin Monetary Union " be-
tween the parties ; Greece acceded in 1868.3 This
convention was three times renewed and amended —
namely, in 1878, 1885, and 1893.4
Another Monetary Union is that entered into by
Denmark, Sweden, and Norway by the Convention of
Copenhagen 5 of May 27, 1873.
On November 22, 1892, the International Monetary
Conference 6 met at Brussels, where the following States
were represented :— Great Britain, Austria-Hungary,
Belgium, Denmark, France, Germany, Greece, Holland,
Italy, Mexico, Portugal, Roumania, Spain, Sweden-
Norway, Switzerland, Turkey, and the United States of
America. The deliberations of this conference, how-
ever, had no practical result.
1 See Martens, N.R.G. 2nd Ser. I. 4 See Martens, N.R.G. 2nd Ser.
p. 663. IV. p. 725, XI. p. 65, XXI. p. 285.
2 See above, § 466. 5 See Martens, N.R.G. 2nd Ser.
3 See Martens, N.R.G. XX. pp. I. p. 290.
688 and 694. 6 See Martens, N.R.G. 2nd Ser.
XXIV. pp. 167-478.
official § 589. On March 15, 1886, Belgium, Brazil, Italy,

tions!ca Portugal, Servia, Spain, Switzerland, and the United
States of America signed at Brussels a convention 1
concerning the exchange of their official documents
and of their scientific and literary publications in so
far as they are edited by the Governments. The same
States, except Switzerland, signed under the same date
at Brussels a convention 2 for the exchange of their
Journaux officiels ainsi que des annales et des docu-
ments parkmentaires.
Sanita-
tion. § 590. In the interest of public health as endangered
by cholera and plague a number of so-called sanitary
conventions have been concluded :—
(1) On January 30, 1892, Great Britain, Germany,
Austria-Hungary, Belgium, Denmark, Spain, France,
Greece, Italy, Holland, Portugal, Russia, Sweden-Nor-
way, and Turkey signed the International Sanitary
Convention of Venice.3
(2) On April 15, 1893, Germany, Austria-Hungary,
Belgium, France, Italy, Luxemburg, Montenegro, Hol-
land, Russia, Switzerland signed the Cholera Conven-
tion of Dresden ; 4 but Montenegro has not ratified.
Great Britain, Servia, Lichtenstein, and Roumania
acceded later.
(3) On April 3, 1894, Great Britain, Germany,
Austria-Hungary, Belgium, Denmark, Spain, France,
Greece, Italy, Holland, Persia, Portugal, and Russia
signed the Cholera Convention of Paris ; an additional
declaration was signed at Paris on October 30, 1897.6
Sweden-Norway acceded later.
(4) On March 19, 1897, Great Britain, Germany,
1 See Martens, N.R.G. 2nd Ser. * See Martens, N.R.G. 2nd Ser.
XIV. p. 287. XIX. p. 39, and Tieaty Series, 1894,
2 See Martens, N.R.G. 2nd Ser. No. 4.
XIV. p. 285. 6 See Martens, N.R.G. 2nd Ser.
» See Martens, N.R.G. 2nd Ser. XXIV. pp. 516 and 552, and Treaty
XIX. p. 261, and Treaty Series, Series, 1899, No. 8.
1893, No. 8.
Austria-Hungary, Belgium, Spain, France, Greece, Italy,

Luxemburg, Montenegro, Turkey, Holland, Persia,
Portugal, Roumania, Russia, Servia, and Switzerland
signed the Plague Convention of Venice ; an additional
declaration was signed at Rome on January 24, 1900 ; 1
but Greece, Turkey, Portugal, and Servia do not seem
to have ratified. Sweden acceded later.
(5) For the purpose of revising the previous cholera
and plague conventions and amalgamating them into
one document, Great Britain, Germany, Austria-Hun-
gary, Belgium, Brazil, Spain, the United States of
America, France, Italy, Luxemburg, Montenegro, Hol-
land, Persia, Portugal, Roumania, Russia. Switzerland,
and Egypt signed on December 3, 1903, the Inter-
national Sanitary Convention of Paris.2 Denmark,
Mexico, Norway, Sweden, and Zanzibar acceded later.
It is, however, of importance to mention that the
previous sanitary conventions remain in force for those
signatory Powers who do not become parties to this
convention.
(6) For the purpose of organising the International
Office of Public Health contemplated by the Sanitary
Convention of Paris of December 3, 1903, Great Britain,
Belgium, Brazil, Spain, the United States of America,
France, Italy, Holland, Portugal, Russia, Switzerland,
and Egypt signed at Rome on December 9, 1907, an
agreement 3 concerning the establishment of such an
office at Paris ; 4 but it would seem that Holland and
1 See Martens, N.R.G. 2nd Ser. of the battlefields, Ullmann suggests
XXVIII. p. 339, XXIX. p. 495, and a general convention instituting
Treaty Series, 1900, No. 6— See neutral sanitary commissions whose
also Loutti, " La politique sanitaire duty would be to take all necessary
Internationale " (1906). Attention sanitary measures after a battle,
should be drawn to a very valu- 8 See Martens, N.R.G. 3rd Ser.
able suggestion made by Ullmann I. p. 78, and Treaty Series, 1907,
in R.I. XI. (1879), p. 527, and in No. 27.
R.G. IV. (1897), p. 437. Bearing in 3 See Martens, N.R.G. 3rd Ser. II.
mind the fact that frequently in time p. 913, and Treaty Series, 1909,
of war epidemics break out in con- No. 6.
sequence of insufficient disinfection * See above, § 4716.
Portugal have not yet ratified. Argentina, Bulgaria,

Mexico, Persia, Peru, Servia, Sweden, and Tunis ac-
ceded later.
Pharma- § 591. On November 29, 1906, Great Britain, Ger-
many, Austria-Hungary, Belgium, Bulgaria, Denmark,
Spain, the United States of America, France, Greece,
Italy, Luxemburg, Norway, Holland, Eussia, Servia,
Sweden, and Switzerland signed at Brussels an agree-
ment concerning the Unification of the Pharmacopceial
Forrmuas for Potent Drugs.1
Human- § 592. In the interest of humanity two Unions —
although the term " Union " is not made use of in the
treaties — are in existence, namely, that concerning Slave
Trade and that concerning the so-called White Slave
Traffic.
(1) A treaty concerning slave trade 2 was already
in 1841 concluded between Great Britain, Austria,
France, Prussia, and Eussia. And article 9 of the
General Act of the Berlin Congo Conference of 1885
likewise dealt with the matter. But it was not until
1890 that a Union for the suppression of the slave
trade came into existence. This Union was established
by the General Act 3 of the Brussels Conference, signed
on July 2, 1890, and possesses two International Offices,4
namely, the International Maritime Office at Zanzibar
and the Bureau Special attached to the Foreign Office
at Brussels. The signatory Powers are :— Great Britain,
Austria-Hungary, Belgium, Congo Free State, Denmark,
France, Germany, Holland, Italy, Persia, Portugal,
Eussia, Spain, Sweden-Norway, the United States of
America, Turkey, and Zanzibar. Liberia acceded
later.
(2) On May 18, 1904, an Agreement for the Suppres-
1 See Martens, N.R.G. 3rd Ser. I. » See Martens, N.R.G. 2nd Ser.
&502, and Treaty Series, 1907, XVI. p. 3.
o. 1. * See above, § 468.
2 See above, § 292, p. 368, note 2.
sion of the White Slave Traffic 1 was signed at Paris by

Great Britain, Germany, Belgium, Denmark, Spain,
France, Italy, Holland, Portugal, Russia, Sweden-
Norway, and Switzerland. Brazil and Luxemburg
acceded later. A further Agreement concerning the
subject was signed at Paris on May 4, 1910, by thirteen
States, but has not yet been ratified.
§ 593. Two general treaties are in existence for the Preserva-
purpose of preserving certain animals in certain parts Animal
of the world :- World-
(1) In behalf of the preservation of wild animals,
birds, and fish in Africa, the Convention of London 2
was signed on May 19, 1900, by Great Britain, the
Congo Free State, France, Germany, Italy, Portugal,
and Spain ; Liberia acceded later. However, this
convention has not yet been ratified.
(2) In behalf of the prevention of the extinction of
the seals in the Behring Sea, the Pelagic Sealing Con-
vention3 of Washington was signed on July 7, 1911,
by Great Britain, the United States of America, Japan,
and Russia, but has not yet been ratified.
§ 594. Various general treaties have been concluded Private
for the purpose of establishing uniform rules concerning national
subjects of the so-called Private International Law :— Law<
(1) Already on November 14, 1896, a general treaty
concerning the conflict of laws relative to procedure
in civil cases was concluded at the Hague. But this
treaty was replaced by the Convention 4 of the Hague of
July 17, 1905, which is signed by Germany, Austria-
Hungary, Belgium, Denmark, Spain, France, Italy,
Luxemburg, Norway, Holland, Portugal, Roumania,
Russia, Sweden, and Switzerland.
1 See Martens, N.K.G. 2nd Ser. 2 See Martens, N.R.G. 2nd Ser.
XXXII. p. 160, and Treaty Series, XXX. p. 430.
1905, No. 24— See also Butz, " Die 3 See above, § 284.
Bekampfung des Madchenhandels im * See Martens, N.R.G. 3rd Ser.
internationalen Recht " (1908) ; Rehm II. p. 243.
in Z.V. I. (1907), pp. 446-453.
(2) On June 12, 1902, likewise at the Hague, were

signed three conventions 1 for the purpose of regulating
the conflict of laws concerning marriage, divorce, and
guardianship. The signatory Powers are Germany,
Austria-Hungary, Belgium, Spain, France, Italy, Lux-
emburg, Holland, Portugal, Eoumania, Sweden, and
Switzerland.
(3) Again at the Hague, on July 17, 1905, were signed
two conventions for the purpose of regulating the con-
flict of laws concerning the effect of marriage upon the
personal relations and the property of husband and wife,
and concerning the placing of adults under guardians
or curators. The signatory Powers are Germany, France,
Italy, Holland, Portugal, Koumania, and Sweden.2
American § 595. The first Pan-American Conference held at
Republics. Waskmgton in 1889 created the International Union of
the American Republics for prompt collection and
distribution of commercial information.3 This Union
of the twenty-one independent States of America estab-
lished an International Office at Washington, called at
first " The American International Bureau," but the
fourth Pan-American Conference, held at Buenos Ayres
in 1910, changed the name of the Office 4 to " The Pan-
American Union." At the same time this conference
considerably extended 5 the scope of the task of this
Bureau to include, besides other objects, the function of
a permanent commission of the Pan-American Confer-
ences which has to keep the archives, to assist in ob-
taining the ratification of the resolutions and conven-
tions adopted, to study or initiate projects to be in-
cluded in the programme of the conferences, to com-
municate them to the several Governments, and to
1 See Martens, N.RG. 2nd Ser. 3 See Barrett, " The Pan-American
XXXI. pp. 706, 715, 724. Union " (1911).
2 Meili and Mamelok, " Das inter- 4 See above, § 467a.
nationale Privat-und Zivilprozess- 6 See Reinsch, " Public Inter-
recht auf Grund der Haager Konven- national Unions " (1911), p. 117.
tionen" (1911), offers a digest of all
the Hague Conventions concerned.
formulate the programme and regulations of each suc-

cessive conference.
§ 596. In the interest of scientific research the fol- Science,
lowing Unions J have been established :—
(1) On October 30, 1886, Great Britain, Germany,
Argentina, Austria-Hungary, Belgium, Denmark, Spain,
the United States of America, France, Greece, Italy,
Japan, Mexico, Norway, Holland, Portugal, Roumania,
Russia, Sweden, and Switzerland signed a convention at
Berlin for the purpose of creating an International
Geodetic Association. Already in 1864 a number of
States had entered at Berlin into an Association con-
cerning geodetic work in Central Europe, and in 1867
the scope of the association was expanded to the whole
of Europe, but it was not until 1886 that the geodetic
work of the whole world was made the object of the
Geodetic Association. The convention of 1886, how-
ever, was revised and a new convention was signed at
Berlin on October 11, 1895.2 The Association, which
arranges an international conference every three years,
possesses a Central Office at Berlin.
(2) On July 28, 1903, was signed at Strasburg a
convention for the purpose of creating an International
Seismologic Association. This convention was revised
on August 15, 1905, at Berlin.3 The following States
are parties :— Great Britain, Germany, Austria-Hungary,
Belgium, Bulgaria, Canada, Chili, Spain, the United
States of America, France, Greece, Italy, Japan, Mexico,
Norway, Holland, Portugal, Roumania, Russia, Servia,
and Switzerland. The Association, which arranges an
1 The conventions which have 2 For the text of this Convention,
created these Unions would seem to see Annuairc de la Vie Internationale,
be nowhere officially published and 1908-1909, p. 390.
are, therefore, not to be found in the 3 The text of this Convention is
Treaty Series or in Martens. The not published in the Annuaire de la
dates and facts mentioned in the Vie Internationale, 1908-1909, but its
text are based on private and snch predecessor of 1903 is published
information as can be gathered from there on p. 393.
the Annuaire de la Vie Internationale,
1908-1909, pp. 389-401.
VOL. I. 2E
international conference at least once in every four years,

has a Central Office at Strasburg.
(3) On May 11, 1901, a convention was signed at
Christiania for the International Hydrographic and
Biologic Investigation of the North Sea.1 The parties
are Great Britain, Germany, Belgium, Denmark, Hol-
land, Norway, Russia, and Sweden. The Association
possesses a Central Office.
1 For the text of this Convention, see Anrwa-ire dc la Vie Internationale,
1908-1909, p. 397.
INDEX
Alexandria, International Court of
appeal at, 499
Abandoned river-beds, 302 Algeciras, International Conference
Abdicated monarchs, 432 of, 75, 156
Absorption of a State, 127 Algeria, trade between France and,
Abuse of flag, 336 608
Abyssinia, independence of, 76, 145, Aliens Act, the, 391
147, 156, 164 Aliens :
Accession to treaties, 568 Act for the registration of, 398
Accretion of territory : expulsion of, 399-403
abandoned river-beds, 302 how far they can be treated accord-
alluvions, 300 ing to discretion, 397
artificial formations, 299 in Eastern countries, 395
conception of, 299 protection to be afforded to, 397
deltas, 300 reception of, 390
different kinds of, 299 reconduction of, 402
new-born islands, 301 right of asylum of, 392
Acosta, 97 subjected to territorial supremacy,
393
Acquisition of territory, 281-284
Acquisition of territory by individuals their departure from the foreign
and corporations, 282 country, 398
Acts, 551 under protection of their home
Adhesion to treaties, 569 State, 395
Alliances :
Administration of territory by a
foreign Power, 232 casus fcederis, 599
Aegi, case of, 496 conception of, 595
Africa : conditions of, 598
notification of future occupations different kinds of, 597
on the coast of, 294, 590 parties to, 597
preservation of wild animals in, 623 Alluvion, 300
African states, 164, 165 Alsace, 279, 291
Agadir, German action at, 76 " Alternat " clause, the, 173
Agent consular, 486 Amakouron, river, 242
Agents lacking diplomatic or consular Ambassadors, 57, 444. See also Diplo-
character, 509 matic envoys.
Agents provocateurs, 510 Ambrose Light, case of the, 342
Agricultural Institute, International, Amelia Island, case of the, 186
518, 617 American International Bureau, 517,
624
Agriculture, Convention for preserva-
tion of birds useful to, 618 American Civil War, 70
Aix-la-Chapelle : Amos, Sheldon, 94
Congress of (1818), 67, 444, 566, 588 Andorra, international position of,
Peace treaty of (1668), 62 ; (1748), 146
64
Anglo-French Agreement (1904), 278,
Aland Islands, 277, 564 539
Alaska boundary dispute, 272, 320 Anglo- Japanese Alliance, text of, 596
Alcazar, case of, 220 Anna, case of the, 301
Alcorta, 97 Annexation, 303
Alexander II. of Russia, assassination
627 Anti-Slavery Conference at Brussels,
of, 416, 418, 420 368, 517, 560
Alexander VI., Pope, 316 Antivari, port of, 327
628 INDEX
Antoninus Pius, 315 Bay (continued)

Anzilotti, 104 of Delaware, 262, 263
Apocrisiarii, 437 of Stettin, 263
Aral, Sea of, 245, 321 Bays, 262
Arbitration : Bearers of despatches, 511, 512
International Court of, 79, 274, 278, Beckert, case of, 474
372, 410, 503 Behring Sea Award Act (1894), 352
Permanent Court of, suggested in Behring Sea conflict between Great
1306 by Pierre Dubois, 58 Britain and United States, 320, 351
Tribunal at Paris (1893), 352 Belgium, independence of, 68, 312
Armed forces on foreign territory, neutralisation of, 152, 588
500. See also Jurisdiction. Belle-Isle,
Armed neutrality, first (1780), 64 Belli, 84 case of Marechal de, 471
Army of Occupation, jurisdiction of, Bello, 97
503 Bentham, 4, 88
Art, Union for the protection of works Berlin :
of, 516, 615 Congo Conference of (1884-85), 72,
Artificial boundaries, 270 153, 368, 514, 537, 590, 605
Artificial formation of territory, 299 Congress of (1878), 71, 118, 272,
Asiatic States, 164, 165 368, 514
Asylum of criminals : Decrees of, 65
in foreign countries, 392 Treaty of (1878), 71, 76, 327, 364,
in hotels of diplomatic envoys, 461 369, 387, 575, 576, 579, 590
in men-of-war and other public Bernard, 102
vessels abroad, 507 Berne Convention, 615
Atmosphere, territorial, 236 Bill of lading, 331
Attaches of Legation, 472 Binding force of treaties, 541, 545, 546
Attentat clause, the Belgian, 416, Biologic investigation of the North
421
Aubaine, droit d\ 398 BirdsSea,
: 626
Aubespine, in Africa, preservation of, 623
Austin, 5, 98case of L', 459 useful to agriculture, Convention
Austria-Hungary as a real union, 134 for the preservation of, 618
Authentic interpretation, 582 Birkenfeld, 230
Aviation, 236 Birth, acquisition of nationality by,
Avulsio, 300 375
Awards of the Court of Arbitration, Black Sea, 247, 268, 269, 321
521 neutralisation of, 70, 325, 575
Ayala, 84 Blockade, 63, 335, 538, 588
Azoff, Sea of, 321 of Venezuela, 74
Azuni, 320 Bluntschli, 36, 96, 99
Bodin, 111, 112
Bombardments, convention concern-
Baker, Sir Sherston, 94 Bon, 96 ing, 594
Balance of power, 62, 65, 80, 193, 289, Bonfils, 95, 100
307 Bornemann, 97
Baltic, the, 248, 267 Bosnia and Herzegovina, international
maintenance of status quo in the, position of, 77, 233, 576
604 Bosphorus and Dardanelles, 247, 266,
Bancroft treaties, 389 267, 268, 321
Barbeyrac, 90 Boundaries of State territory, 270-273
Barents Sea, 266 Boundary :
Barima, river, 242 Commissions, 272
Bass, case of De, 459 dispute, 272, 296
Batoum, 539, 575, 579 mountains, 272
Bavaria sends and receives diplomatic waters, 270
envoys, 441 Boundary dispute :
Bay: between Great Britain and Vene-
of Cancale, 262 zuela, 198, 242
of Chesapeake, 262, 263 Louisiana, 295
of Conception, 262, 263 Oregon, 295
INDEX 629
Boundary treaty : Canon Law, 8
between Great Britain and the Cape Breton Island, restitution of,
United States, 272 to France, 566
of Buenos Ayres (1881) between Capitulations, 395, 482, 497
Argentina and Chili, 267, 564, 592 Capture in maritime war, Convention
Bounties on sugar, Convention con- concerning, 594
cerning, 515, 617 Carlowitz, Peace Treaty of, 63
Brazil, Carnazza-Amari, 96
312 international position of, 72, Carnot, assassination of, 418, 420
Bristol Channel, 266 Caroline, case of the, 187, 501
British seas, 317 Caroline Islands, sold by Spain to
Brooke, Sir James, Sovereign of Germany, 288
Sarawak, 282 Carthagena, rebel men-of-war at, 342
Brunus, 84 Casa Blanca incident, the, 502
Brussels : Casanova, 96
Anti-Slavery Conference of, 368, Caspian Sea, 246
517, 560, 591 Castione, case of, 415
Conference of (1874), 71, 552 Castlereagh, Lord, 412
Convention concerning sugar, 515, Gasus feeder is, 599
617 Cavour, Count, 426
Bry, 95 Cellamare, case of Prince, 459
Buddhist States, 30, 154 Celsus, 315
Buenos Ayres, Boundary treaty of Central American Court of Justice,
(1881), between Argentina and 525
Chili, 267, 564, 592 Ceremonials, maritime. See Maritime
Buffer States, 148 ceremonials.
Bulgaria : Certificate of registry, 331
a party to the Hague Peace Con- Cession of territory, 285-291
ferences, 534 acquisition of nationality through,
international position of, 71, 183, 289, 377
576
Ceylon, pearl fishery ofi the coast
Bulletin des Douanes, 517 of, 348
Bulmerincq, 96, 100 Chablais and Faucigny, 279, 286
Bumboats in the North Sea, 338, Chalmers, 103
351 Chambers of Reunion (1680-1683), 62
Bundesrath, the, 433, 516, 546 Changes in the condition of States,
Bundesgericht, the, 417 121-125
Burlamaqui, 90 Channel :
Burroughs, Sir John, 319 Bristol, 266
Bynkershoek, 91, 320 North, 266
St. George's,
Channel tunnel, 266
proposed, 359
0
Chapelle, droit de, 467
Charges d' Affaires, 445-481. See also
Cabotage, 258, 606 Diplomatic envoys.
Calhoun, 115 Charges des Affaires, 445
Callao, revolutionary outbreak at, 342 Charkieh, case of the, 507
Calvo, 97, 99 Charles I., 319
Campos, 97 Charlton, case of Porter, 408
Canals, 248-254 Charter-party, 332
Cancale, bay of, 262 Chesapeake, Bay of, 262, 263
Cancellation of treaties on account of : China, international position of, 164
subsequent change of status of a China and Japan, war between, 72
party, 579 Cholera. See Sanitary Conventions.
their inconsistency with subsequent Christiania, Treaty of, 75, 135
rules of International Law, 578 Christina, Queen of Sweden, 431
their violation by one of the parties, " Citizen " and " subject " of a State
579
war, 580 synonymous in InternationalLaw,
370
Canning, case of George, 532 Civilians, the, 55
Canning, case of Sir Stratford, 451 Clayton-Bulwer Treaty, 251
Canonists, 55 Coasting trade, 258, 606
630 INDEX
Code of signals, International, 333 Constitutional restrictions concerning

Codification of International Law, 35 the treaty-making power, 545
Collective guarantee, treaties of, 601 Constitutional system, 68
Collision at sea, 334 Consular Act, 484
Colonial States cannot be parties to Consular districts, 485
international negotiation, 530 Consul-general, 486
Colonies rank as territory of the Consular jurisdiction in non -Christian
motherland, 231 States, 497
Comity of Nations, 24, 261 Consular officers, 485
Commercial Code of Signals, 333, Consular service, British, 487
334 Consuls :
Commissaries, 511
appointment of, 496
archives of, 495, 487-490
Commissions, International, 512-515
in the interest of : consular organisation, 485
fisheries, 513 consules missi and electi, 485
foreign creditors, 515 consular districts, 485
navigation, 513 different classes of, 486
sanitation, 515 functions of, 480, 490-493
sugar, 515 general character of, 484
Common Consent, 16 informal appointment of, 490
Como, Lake of, 245 in non-Christian States, 497
Composite in the fifteenth century, 483
140 International Persons, 132- no obligation to admit, 488
Compromise clause, 583 non-professional, 495
Conception, Bay of, 262, 263 position and privileges of, 493—495
Concert, European, 170 qualification of, 487
Concordat, 161 subordinate to diplomatic envoys,
Condominium, 232, 272 487
Confederate States, 133, 135 termination of consular office, 496
Conferences. See Congresses. the institution of, 482
Congo, river, 242 Consuls Marchands, 482
Congo Commission, the international, Contiguity, right of, 295
242 Contraband, 335
Congo Conference of Berlin, 72, 368, Contract debts, recovery of, 192, 592
514, 537, 590, 605 Conventio omnis intelligitur rebus sic
Congo Free State : stantibus, 573
annexation of, 76 Convention, 551 :
merged in Belgium, 34, 287 Anglo-French (1904), 278
neutralisation of, 153 concerning matters of international
recognition of, 73 administration, 79
Congresses, international : concerning the North Sea Fisheries,
cannot be distinguished from Con- 349
ferences, 533 concerning radiotelegraphy, 236,
conception of, 533 355
envoys representing states at, 443, for the protection of submarine
453 cables, 354
parties to, 534 Co-operation, 189
permanent, suggested byPodiebrad, Copenhagen :
58 Peace Treaty of, 63
procedure at, 535 Treaty (1857) abolishing Sound
reception of envoys at, 452 dues, 268
Conquest, 302. See also Subjugation. Copyright :
Conseil sanitaire maritime et quaran- Union concerning, 615
tenaire at Alexandria, 515 Acts concerning, 616
Conseil super ieur de sants at Con- Corinth Canal, 248
stantinople, 515 Corps, diplomatic, 446
Consolato del mare, 56 Corsica, pledged by Genoa to France,
Constance, Lake of, 246 233, 288
Constantinople : Costa Rica Packet, case of the, 217
Conference of (1885-6), 71 Councillors of Legation, 472
Treaty of (1888), 514, 591 Couriers, 472, 473, 475. See also
Constitution, case of the, 507 Retinue of envoy.
INDEX 631
Courland merged in Russia, 124, 287 Delaware, Bay of, 262, 263
Court of Arbitration. See Arbitration Delinquency, international, 209
Court of Justice, Central American, 525 Delits complexes, 415
Cracow, republic of, 151, 310 Delta, 300
Creasy, Sir Edward Shepherd, 94 Delusion and error in parties to
Crete : treaties, 547
international position of, 72, 144 Deniers of the Law of Nations, 89
possesses no right of legation, 441 Denization, 381, 383
Crews of men-of-war, their position Denmark, 186
when on land abroad, 508 her sovereignty over the Baltic, 316
Crime : Deposed monarchs, 432
against the Law of Nations, 209 Deprivation, loss of nationality
extraditable, 408 through, 378
political, 415 De Recuperatione Terre Sancte, 58
Crimean war, 68 Derby, Lord, 601
Cromwell, 172, 459 Dereliction of territory, 313
Crucee, Îmeric, 58 Deserters not to be extradited, 409
Cruchaga, 97 Despagnet, 95, 100
Cuba: Despatches, sealed, transmission
independence of, 72, 181 through belligerents' lines, 471
intervention in, 190 Diena, 96
Cuban debt, 132 Dignity of States, 174-177
Culte, droit du, 467 Diplomacy, 438
Cumberland, Duke of (1837), 433 language of, 439
Cussy, 102 Diplomatic corps, 446
Custom, as source of International Diplomatic envoys :
Law, 16, 22, 23
Custom tariffs, Union for publication appointmentandof,political,
ceremonial 446-448 443
of, 616 classes of, 66, 443-481, 588
office of the Union for publication death of, 480
of, 517 dismissal through delivery of pass-
Customs Laws Consolidation Act, 608 ports, 455, 478
Cutting, case of, 205 exempt from criminal and civil
Cyprus, international position of, 233 jurisdiction, 458, 464
exempt from police regulations, 466
exempt from subpoena as witnesses,
465
exempt from taxes, &c., 467
Danish fleet, case of, 186 exterritoriality of, 460
Danube, navigation on the, 71, 242 family of, 474
Danube Commission, 242, 513 found on enemy territory by a
DardaneUes, 247, 266, 267, 268, 321 belligerent, 471
Davis, 95 functions of, 453
Dead Sea, 244, 321 immunity of domicile of, 461
Death : injurious acts of, 215
of consul, 496 interference with affairs of third
of diplomatic envoy, 480 States by, 472
De Bass, case of, 459 interference in internal politics by,
Debts to be taken over by the suc- not permitted, 455
ceeding State, 131, 287 inviolability of, 457-466
Declaration : official papers of, 447, 458, 478, 480
of Brussels, 37 persons and qualifications of, 446
of London, 78, 343, 537, 538, 560, position of, 455
585, 595 privileges of, 456
of Paris, 12, 68, 537, 569, 588 promotion of, 478
of St. Petersburg, 70, 537, 590 recall of, 477
Declarations, 551
three kinds of, 536 reception of, 449-452
refusal to receive certain individuals
De facto subjects, 372 as, 450
De Jager v. Attorney-General for retinue of, 472-475
Natal, 394
request for, and delivery of, pass-
Delagoa Bay, case of, 314
ports, 478
632 INDEX
Diplomatic envoys (continued) Effect of treaties (continued)

right of chapel of, 467 upon the parties, 561
self-jurisdiction of, 468 upon the subjects of the parties, 562
servants of, 474 upon third States, 563
suspension of mission of, 476 Effective
termination of mission of, 476-481 tion. occupation. See Occupa-
travelling through third States, 469 Egypt, international position of, 142,
Diplomatic usages, 439 164, 498
Discovery, inchoate title of, 294 international courts in, 498
Discretion of States : possesses no right of legation, 441
to admit aliens, 391 Elizabeth, Queen, 318, 459
to appoint envoys, 446 Emigration, 373
to conclude extradition treaties, 406 loss of nationality through, 378
to 'expel aliens, 400 Emperor William Canal, 248
to protect their citizens abroad, 396 Enclosure, 230
to receive and send envoys, 440 Enemy goods covered by neutral
to recognise new heads of States, flag, 588
426 Enqutie, droit d\ 336
Dissolution of treaties : Envoys extraordinary, 444, 445
in contradistinction to fulfilment, Equality of States, 20, 168
570
Equilibrium, 80. See also Balance
through mutual consent, 571 of power.
through vital change of circum- Erie, Lake, 246, 247
stances, 572 Error and delusion in parties to
through withdrawal by notice, 571 treaties, 547
Dogger Bank, case of the, 219 Estate duty, 398
Domicile : Etape, droit d\ 278
of envoys abroad, 474 European Concert, 170
through naturalisation, 375, 379 European Danube Commission, 513
Domin-Petruchevecz, 36 Exchange, case of the, 507
Doyen of the diplomatic corps, 446 Exchange of State territory, 287
Drago doctrine, 192 Exequatur :
Droit : requisite for consuls, 489, 493, 494,
d'aubaine, 398 496
de chapelle, 467 revoked, 426
de convenance, 184 Exclusion of aliens in the discretion
d'enqu&e, 336 of every State, 391
d'etape, 278 Expiration, loss of nationality
de preseance, 172 through, 378
de recousse, 347 Expiration of treaties :
de renvoi, 402 in contradistinction to fulfilment,
du culte, 467 570
Dubois, case of, 465 through expiration of time, 571
Dubois, Pierre, 58 through resolutive condition, 571
Duke of Brunswick v. King of Explosives, discharge of from balloons
Hanover, 433
Duke of Cumberland, 433 prohibited, 39
Expulsion of aliens :
Dum-dum bullets, 592 from Great Britain, 399
Dumont, 102 from Switzerland, 399
Dunkirk, fortification of, 183, 583 how effected, 402
Duplessix, E., 37 in the discretion of every State,
400
B just causes of, 400
Exterritoriality, 460
Eastern countries : of a monarch's retinue abroad, 431
of consuls in non-Christian States,
Consuls in, 497 497
Protection of individuals in, 372, of diplomatic envoys and the
395 members of their suite, 460-469
Effect of treaties : of monarchs and the members of
how affected by changes in govern- their suite, 430
ment, 562 of men-of-war in foreign waters, 506
INDEX 633
Exterritoriality (continued) Flag (continued)

of presidents of republics, 434 claims of States to maritime, 326
of the wife of a monarch, 430, 431 claims of vessels to sail under a
Extinction of States, 124 certain, 329
Extraditable crimes, 409 commercial, 327
Extradition : enemy
588 goods covered by neutral,
conception of, 403
condition of, 409 special, for bumboats, 351
effectuation of, 409 verification of, 335, 337
municipal laws concerning, 406 Force majeure, 521, 524
no obligation to grant, 404 Foreign Jurisdiction Act (1890), 395,
of deserters, 409 498
of 422
political criminals, 409, 411- Foreign Offices, 435
Foreigner. See Alien.
treaties of, 392 Forerunners of Grotius, 83
treaties stipulating, how arisen, Form of treaties, 550
404 France, as an International person,
Extradition Acts, British, 406, 409 122
Franchise de V hotel, 461
du quartier, 461
Franconia, case of, 29
F Frankfort :
Peace Treaty of, 290, 291, 606
Family of Nations : subjugation of, 304
conditions of membership of, 31, 166 Frederick III., Emperor of Germany,
definition of, 11 316
position of States in the, 165 Frederick William of Brandenburg,
Faroe Island Fisheries, 353 464
Fauchille, 95, 103 Freedom of action necessary for con-
Faucigny, 279, 286 sent to treaties, 547
Federal States, 136 French :
as regards appointment of envoys Convention, 35, 65
by, 138, 441 Constitution, 412
as regards appointment of consuls Revolution, 65, 98, 411
by, 489 Frische Haff , 263
as regards conclusion of treaties Fugitive Offenders Act (1881), 406
by, 544 Fulfilment of treaties, 570
Federalist, The, 115, 137 Full powers, 447, 544
Female consuls, 488 Funck-Brentano, 95
Female diplomatic envoys, 446 Fundamental rights of States, 165
Ferguson, 97
Fetiales, 51
Field, 36
Final Act of a Congress, 536
Finance Act (1894), 399
Fiore, 37, 96, 99 Odbella emigrations, 398
Fisheries : Gallatin, case of the coachman of Mr.,
around the Faroe Islands, 353 474
as servitudes, 278 Gareis, 96
in gulfs and bays, 265 General Act of a Congress, 536
in straits, 266 Geneva Convention, 70, 569, 589
in the maritime belt, 258 Convention for its adaptation to
in the North Sea, 316, 337, 349 Naval War, 594
in the Open Sea, 348-353 Geneva, Lake of, 246
in the White Sea, 348 Genoa, her sovereignty over the
off the coast of Iceland, 348, 353 Ligurian Sea, 316
pearl, off Ceylon, 348 Gentilis, 84, 318
Fishery Commissions, 513 Geodetic Association, International,
Fish in Africa, preservation of, 623 625
Fitzmaurice, Lord, 262 Germany, member-States of :
Flag: competent to conclude treaties, 544
abuse of, on the part of vessels, 336 recognised as independent, 61, 66
634 INDEX
Ghillany, 102 Hamilton, A., 115

Gibraltar, 278 Hanover :
Good offices, 189, 568 King of, 433, 450
Gore, American Commissioner, 513 subjugation of, 304
Grand cabotage, 607 Hanseatic League, 56
Great Powers, 3 Hartmann, 96, 100
hegemony of, 168 Havana, Treaty of, 181
Greece, independence of, 68 Hay-Pauncefote Treaty, 251, 557, 559,
Greeks, their rules for international 563, 592
relations,
'4 49 Hay-Varilla Treaty, 252, 254, 564
Gregoire,38 Abbe, 35 Heads of States, 425-428
Grotians, the, 92 competence of, 427
Grotius, Hugo, 4, 59, 85-88, 283, 318, honours and privileges of, 428
injurious acts of, 214
Gua as a mea of secu the legitimate, 426, 427
ran n
tee
performance of streaties, r567
ing objects of Law of Nations, 427
Guarantee of government or dynasty, position of, 427
191 predicates of, 174
Guarantee, treaties of, 599 privileges of, 428
collective, 601 recognition of new, 425
conception of, 599 usurping, 427
effect of, 600 Health Office, International, 518
Heffter, 96, 98, 509
pseudo-guarantees, 602-604
Guebriant, Madame de, 447 Henry IV. of France, 58
Gulfs, 262 Herring Fishery (Scotland) Act, 264
Gulistan, Treaty of, 246 Hertslet, 103
Gurney, case of, 473 Herzegovina, international position
Gyllenburg, case of, 459 of, 233, 576
Hesse-Cassel, subjugation of, 304
Hinterland, 297
Hobbes, 4, 89, 112
Holland, Professor, 85
Holldack, 104
Haggerty, case of, 489 Holtzendorff, 96, 100
Hague : Holy AUiance, 66, 68, 196, 413, 544,
Convention concerning conversion 596
of merchant ships into war ships, Holy Roman Empire, origin of
505 doctrine of servitudes in the, 275
Convention (1882), concerning fish- Holy See, 157-162, 441
eries in the North Sea, 349 cannot be party to international
Convention concerning laws and negotiation, 161, 441
usages of war, 552, 569, 586 receives ambassadors of first class,
Convention (1887), concerning 444
Liquor Traffic on the North Sea, Hostages as a means of securing the
351 performance of treaties, 566
Conventions (1907), 207, 213, 218, Hostilities :
538 convention relative to the opening
International Court of Arbitration
of, 593
at the, 74, 274, 278, 518 convention regarding enemy mer-
First Peace Conference at the, 12, chantmen, 593
37, 73, 534, 589, 591 Hovering Acts, 261
Second Peace Conference at the, Huascar, the, 342
12, 38, 77, 365, 534, 589, 592 Hubertsburg, Peace treaty of, 64
Haiti, 32 Humanity, Unions in the interest of,
Half -Sovereign States, 141 622, 623
cannot send or receive diplomatic Humbert of Italy, assassination of
envoys, 441 King, 418, 420
competent to conclude treaties, 544 Hiiningen, 279
may be parties to international Huron, Lake of, 246, 247
congresses, 534 Hutcheson, 90
Hall, 94, 100 Hydrographic investigation of the
Halleck, 95, 99 North Sea, 626
INDEX
635
International Commission of the
Congo, 514
Iceland, fisheries around, 348, 353 International Commission of the pro-
Illegal obligations, 550 posed Channel Tunnel, memo-
Immoral obligations, 549 randum respecting, 359
Immunity of domicile, 461, 474 International Commissions, 512
Independence of States : in 515
the interest of foreign creditors,
consequences of, 178
definition of, 177 of Inquiry, 512
restrictions upon, 180 International Council of Sanitation at
violations of, 179 Bucharest, 515
Indian vassal States of Great Britain, International Court of Arbitration at
142 the Hague :
Indians, Red, 35 Awards of, 521
Bureau of, 519
"Individuals
Indigenousness,"
: international, 367
deciding Tribunal of, 520
never subjects of International Law, Permanent Council of, 518
19, 362 International Court of Justice, pro-
objects of International Law, 366
stateless, 366, 387 Internationalposed, Courts
524 in Egypt, 498
In dubio mitius, 584 International crimes, 209
Industrial property, union for pro- International delinquencies, 209
tection of, 616 International disputes, convention for
office of, 517 the settlement of, 592
Informing gun, the, 337 International Health Office, 518
Inquiry, international commissions International Jurists, schools of, 82,
of, 512 89
Institute of International Law, the, 36 International Law :
rtylement concerning acts of in- basis of, 15
surgents, 224 basis of international relations, 67
reglement concerning consuls, 494 codification of, 35
reglement concerning men-of-war definition of, 3
in foreign ports, 508 development of, 45, 59
reglement concerning utilisation of dominion of, 30
flow of rivers, 243 factors influencing the growth of, 24
rules concerning aliens, 391, 401 legal force of, 4
rules concerning double and absent periodicals relating to, 103, 104
nationality, 390 relations between International Law
rules concerning extradition, 410, and Municipal Law, 25
417 sources of, 20
rules concerning immunities of States as subjects of, 19, 107
diplomatic envoys, 450, 457 International Law Association, the, 37
vceux concerning emigrants, 374 International Maritime Committee,
Instructions of diplomatic envoys, 448 conference of (1910), 333, 339
Insurgents and rioters, 223 International negotiation. See Ne-
Insurgents recognised as a belligerent
Power, 107, 119 gotiation. offices :
International
do not possess the right of legation, agriculture, 518
442 customs tariffs, 517
health, 518
reglement ofnational
the"Law concerning
Institute ofacts
Inter-
of, industrial property, 517
224 maritime office at Zanzibar, 517
send public political agents, 509 Pan-American Union, 517
Integrate territory, 230
Intercession, 189 post, 516
sugar, 517
Intercourse of States, 199-201, 328 telegraphs, 516
International bureau of the Inter- transports, 517
national Court of Arbitration, weights and measures, 516
516, 519 works of literature and art, 516
International Code of Signals, 333 International personality as a body of
International Commission concerning qualities,of,166
sugar, 515 definition 167
636 INDEX
International persons, 107, 121, 125, Jay Treaty, article concerning privi-
132, 154, 162 leges of commissioners, 513
International Prize Court, 12, 522 Jenkins, Sir Leoline, 89
convention concerning, 594 Jenkinson, 103
Jews :
International Radiographic Conven-
tion, 236, 355 not108a subject of International Law,
International Telegraph Union, 614
International transactions. See sometime excluded from Gibraltar,
Transactions. 278
Internoscia, Jerome, 37 their rules for international rela-
Internuncios, 445 tions, 46
Interpretatio authentica, 583 their treatment in Roumania and
Interpretation of treaties, 582-586 Russia, 369, 387, 392
Intervention, 81, 188 Johann Friederich, case of the, 339
admissibility in default of right, 193 Journal TelegrapJiique, 516
by right, 189 Juges Consuls, 482
concerning a treaty concluded by Jurisdiction, 201-205
other States, 568 exemption of envoys from, 458,
concerning extradited criminals, 410 462-464
definition of, 188 in actions for collision at sea, 334
for maintaining the balance of in Straits, 266
power, 193 of an Army of Occupation, 503
in the interest of humanity, 194 of monarchs abroad over their re-
on behalf of citizens abroad, 396 tinue, 430
Ionian Islands, international position of States over their citizens in
of, 146, 286 Eastern countries, 395
Inviolability : on
of bearers of despatches, 512 overthearmed
Open forces Sea, 203, 329-339
abroad, 501
of commissaries, 511 over citizens abroad, 202
of consular buildings, 495 over crews of men-of-war when on
of consuls in non-Christian States, land abroad, 508
497 over foreigners abroad, 204
of diplomatic envoys, 457-460 over foreign vessels sailing under
of members of international com- the flag of a State, 330
missions, 514 over monarchs as subjects, 433
of monarchs abroad, 429 over pirates, 345
of presidents of republics, 433, 434 within the maritime belt, 260
of public political agents, 510 Jus :
Irish Sea, 266 albinagii, 398
Isabella, Queen of Spain, 426, 432 avocandi, 371
Island, new-born, 301 fetiale, 51, 52
Italy as a Great Power, 70, 171 quarter iorum, 461
her " Law of Guaranty " concerning repraesentationis omnimodae, 427
the Pope, 158 sacrale, 51
sanguinis, 375
soli, 375
transitus innoxii, 470
Jacquin, case of, 416 K

Jade Bay, 263
James I., 317, 469 Kainardgi, Treaty of, 441
Japan, 33, 72, 171 Kalkstein, case of Colonel von, 464
and Russia, war between, 74 Kamptz, 103
conflict with United States con- Kara Sea, 266
cerning Japanese school children Kara Straits, 266
in California, 211 Kardis, Peace Treaty of, 63
treaty of alliance with Great Britain, Karlstad, Treaty of, 75
565 Katschenowsky, 36
text of the treaty of alliance, 596 Kattegat, the, 267
Jassy, case of the, 507 Keiley, case of, 450
Jay, John, 115 Kelmis, 232
637
INDEX
Kent, James, 95, 137 Liszt, 96, 101

Kertch, Strait of, 267, 321 Literature, Union for the protection of
Khedive of Egypt, 498 works of, 516, 615
Kiauchau leased to Germany, 233, 288 Log-book, 331
King's Chamber, 263 Locke, John, 112
Kluber, 95, 98, 103 Lombardy, ceded in 1859 by Austria
Kohler, 104 to France, 288
Korea : Lomonaco, 96
extinction of treaties of, 128 London :
merged in Japan, 287 Conference of (1871), 70, 575
Koszta, case of Martin, 388 Convention of (1841), 268
Kurische Haff, 263 Convention of (1884), 181
Convention of (1901), concerning
fisheries, 353
Declaration of, 78, 343, 537, 538,
560, 585, 595
Lado Enclave, leased to Congo Free Declaration of, concerning Egypt
State, 234 and Morocco, 249
Laibach, Congress of, 67 Naval Conference of, 38, 39, 43, 78,
Lakes, 245 595
Landlocked seas, 245 Treaty (1831), 588
Language of diplomacy, 439 Treaty (1840), 555
Law of Guaranty, the Italian, 158 Treaty (1841), 268, 368
Law of Nations. See International Treaty (1867), 589
Law. Treaty (1871), 247, 269, 325
Law of Nature, 86 Treaty (1883), 514, 587
Law-making treaties, 23, 541, 587-595 Treaty (1906), 76, 156
Lawrence, 94, 100 Treaty (1908-9), 38
Lease of territory, 233, 288 LorenzeUi, 160
Lebanon, the, 357 Lorimer, James, 94, 100
Le Droit d'Auteur, 517 Lorraine, 291
Legation : Loss of territory, 311
combined, 448 Louis XI. of France, 111
institution of, 435, 438 Louisiana boundary dispute, 295
members of, 472-475 Louter, De, 97
papers of the, 478 IS Union Posiale, 516
right of, 440 Luxemburg, neutralisation of, 152,
Legati a latere or de latere, 444 289, 590
Leges Wisbuenses, 56 Lymoon Pass, 266
Legitimacy, doctrine of, 67
Legnano, 84
Leibnitz, 102 M
Ltse-majeste, 413, 415
Letters :
of credence, 447, 476, 477, 479, 509 Macartney v. Garbutt, 450, 467
of marque, 341, 342 Mackintosh, Sir James, 412
of recall, 477 McGregor, adventurer, 186
of recommendation, 509, 510 McLeod, case of, 501
Lettre : Madagascar, annexed by France, 147,
de creance, 447 539
de provision, 477 Madison, J., 115
de recreance, 477 Magellan, Straits of, 267, 564
Levi, Leone, 37, 94 Maine, Sir Henry Sumner, 94
Liberia, 32 Maine, the river, 241
Lichtenstein, neither sends nor re- Mancini, 36
ceives permanent diplomatic en- Manifest of cargo, 331
voys, 449 Mankind, rights of, 35, 367
Lieber, 36 Manning, 94, 98
Lincoln, assassination of, 418, 420 Mardyck, port of, 583
North Sea Mare clausum, 318
Liquor Traffic among Mare liberum, 318
Fishermen, Convention concern-
ing, 351 Marini, Antoine, 58
638 INDEX
Marino, international position of San, Ministers Plenipotentiary, 445

146 Ministers Resident, 445, 588
Maritime belt, 255-261 Miruss, 103
Maritime ceremonials, 176, 258, 317, Mixed Commission of the Danube, 514
326 Mohammedan States, 30, 154
Maritime Conference : Mohl, 103
of London, 38, 39, 43, 78, 595 Moldavia, 441
of Washington, 333 Monaco, international position of, 146
of Brussels, 333, 339 Monaldeschi, case of, 431
Maritime Conventions Bill, 333, 339 Monarchs :
Maritime office at Zanzibar, 517 acts of violence committed by
Marmora Sea, 321 foreign, 431
Martens, Charles de, 92 consideration due to, 429
Martens, F. von, 97, 100 deposed or abdicated, 432
Martens, G. F. von, 91, 102, 320 exterritoriality of, 430
Mary, Queen, 317 in the service of, or subjects of,
Matzen, 97 foreign Powers, 432
Maxey, 95, 101 position of wife of, 430, 431
Means of securing performance of residence of, 430
treaties, 565 retinue of, abroad, 431
guarantee, 567 sovereignty of, 428
travelling incognito, 431
oaths, 565 Monetary Conventions, 619
occupation of territory, 566 Monetary Conference, International,
pledge, 566 619
Measures. See Weights and Measures. Monroe Doctrine, 67, 196
Mediation, 189, 568 Montagnini, case of, 160
Mediterranean, maintenance of status Montenegro :
quo in the, 603 independence
183 of, 71 ; restricted,
Mehemet Ali, 555
Mendoza, Spanish Ambassador, 318 restricted to a commercial flag only,
case of, 459 327
Men-of-war : Monti, case of Marquis de, 472
admittance to maritime belt, 260 Moore, 95, 101
admittance to gulfs, 265 Moors in Gibraltar, 278
admittance to straits, 267 Moray Firth, case of the, 264
excluded from the Bosphorus, 268 Moresnet, 232, 273
in foreign waters, 504 Morocco :
in revolt, 504 independence of, 75, 156, 164
on the Open Sea, 325, 326 protection of natives by foreign
position in foreign waters, 235, 506 Powers, 372
position of crew on land abroad, 508 treaties of (1863 and 1880), 373
proof of character, 505 Mortensen v. Peters, case of, 264
powers over merchantmen, 335, 337 MoseUe, the river, 241
shipwrecked, 504 Moser, 91
Merchantmen. See Merchant ships Most-favoured-nation clause, 563, 585,
and Navigation. 606, 610
Merchant Shipping Act (1873), 333 Motor vehicles, circulation of, 615
Merchant Shipping Act (1894), 330, Motor Car (International Circulation)
331, 332, 333, 337 Act, 615
Merchant ships, conversion into war Mulhouse
287 merged in 1798 in France,
ships, 593
Merger of States, 124, 127, 372 Municipal Law :
M6rignhac, 95 in conflict with treaty obligations,
Metternich, Prince, 249 578
Metric system, Convention concern- not identical with law in general, 9,
ing, 619 14
Meunier, case of, 415 relations between International and
Meuse, the, 241 Municipal Law, 25
Mines : respecting offences against foreign
Convention concerning, 593 States, 222
in the subsoil of the sea bed, 357 Murdered rulers, 418, 420
INDEX 639
Muscat Convention, 373 Negotiation :
Muscat Dhows, case of the, 372 by whom conducted, 531
Muster Roll, 331 conception of, 529
Mutinous crew, 343 end and effect of, 532
envoy's function of, 453
form of, 531
parties to, 529
N
purpose of, 530
Negro Republics, 32
Names of vessels, 332, 350 Nemo plus juris transferre potent, quam
Napoleon I., 65, 183 ipse habet, 288
Napoleon III., 416, 470 Nemo potest exuere patriam, 381
Narrow Seas : Ne quis invitus civitate mutetur, neve
sovereignty of Great Britain over in civitate maneat invitus, 381
the, 266, 316 Netherlands, revolt of, 312
Nassau, subjugation of, 304 Neutralisation of the Black Sea, 575
National. See Citizen. Neutralised States, 147-154
Nationality : as regards State servitudes, 278
absent, 383, 387 cannot cede territory without con-
acquisition of, 306, 374 sent of the Powers, 286
conception of, 369 can be parties to defensive alliances,
difficulties arising from double and 597
absent nationalities, 388 Neutral Powers in Naval War, Con-
double, 383, 384 vention concerning the rights
function of, 370 and duties of, 594
loss of, 377 Newfoundland fishery dispute, 278
principle of, 68, 81 New Hebrides, international position
the link between individuals and of, 232
International Law, 366 Niemeyer, 103
Natural boundaries, 270 Niger, river, 242
Natural boundaries sensu politico, 273 Night work of women, Convention for
Naturalisation Acts, British, 377, 381, the prohibition of, 618
382, 383 Nikitschenhow, case of, 463
Naturalisation in Great Britain, 382 Nillins, case of, 407
Naturalisation : Non-Christian States, 154-156
acquisition of nationality by, 375 Non-extradition :
conception of, 379 Attentat clause of, 416, 421
conditions of, 380
loss of nationality through, 378, 381 principle
rationale of,
for, 411-422
418
object of, 380 Russian proposal concerning, 416,
through grant on application, 376 421
Naturalists, the, 89 Swiss solution of, 417, 421
Naval Conference of London, 38, 39, North Atlantic coast fisheries, case
43, 78, 595 of, 275, 276, 278
Naval war code of the United States, North Channel, 266
38 North Pole, 292
Navigation : North Sea fisheries, 337, 349
Commissions in the interest of, 513 Convention for the regulation of ,349
in gulfs and bays, 265 North Sea :
in straits, 266
in the Suez Canal, 513, 514 hydrographic and biologic investi-
gation of, 626
on rivers, 240-243, 588 maintenance of status quo in the,
on the Congo, 514 603
on the Danube, 513 Norway, international position of, 75
on the Open Sea, 319, 324 Notarial functions :
supervised by consuls, 491 of consuls, 492
through the Straits of Magellan, 267 of diplomatic envoys, 454
within and through the maritime Notification :
belt, 259, 326 as an international transaction, 537
See also Open Sea. of a change in the headship of a
Navigation Act, 607 State, 425
Neckar, river, 241 of occupation, 294
640 INDEX
Nuncios, 444
Nymeguen, Treaty of, 62 Option
loss of: nationality through, 378
Nys, 97, 101, 103 of inhabitants of ceded territory to
Nystaedt, Treaty of, 63 retain their old citizenship, 290
Orange Free State, 304
Oregon Boundary dispute, 295
Ottoman law (1863), concerning pro-
teges, 373
Oath as a means of securing perform-
ance of treaties, 551, 565
Observation, Pacta sunt servanda, 573
454, 455 envoy's function of, Pacta tertiis nee nocent nee prosunl, 563
Occupation of territory, 291-298 Pactum de contrahendo, 546
as a means of securing the perform- Paladini, case of Salvatore, 408
ance of treaties, 566 Panama :
conception of, 291 international position of the Re-
extent of, 295
how affected, 292 interventionpublic, 182,
in,312191
notification of, 294 Panama Canal, 251, 592
object of, 292 Pan-American Conferences, 72, 405,
Office central des transports interna- 517
tionaux, 517 Pan-American Union, 517, 624
Offices, international, 515-518 Pando, 97
Official publications, 620 Panther, case of the, 219
Oleron, Laws of, 56 Papal Nuncio. See Nuncio.
Oliva, Peace Treaty of, 63 Papal States, 157, 450
Olivart, Marquis de, 97, 103 Par in parem non habet imperium, 169,
Omnia rex imperio possidet, singuli 430, 460
dominio, 283 Paris :
Ompteda, 103 Convention for the protection of
Ontario, Lake of, 246, 247 submarine telegraph cables, 354
Open Sea, 315 Declaration of, 12, 68, 537, 569, 588
ceremonials on, 326 Peace Treaty of (1763), 64, 183, 314
claims to sovereignty over parts of, Peace Treaty of (1856), 68, 190, 247,
316 268, 277, 325, 514, 549, 564, 575,
collisions on, 333 578
conception of, 321 Peace Treaty of (1898), 72
fisheries in the, 348-353 Parkinson v. Potter, 467
freedom of, 201, 323-328 Parlement Beige, case of the, 507
in time of war, 325 Parliaments, injurious attitude of, 216
jurisdiction on, 329-339 Participation of third States in
legal order on, 324 treaties :
navigation on, 326 accession, 568
neutralisation of parts, 325 adhesion, 569
piracy on, 339-348 good offices and mediation, 568
powers of men-of-war over mer- intervention, 568
chantmen on the, 335, 337 Parties to treaties, 543-548
rationale for freedom of, 327 Parts of treaties, 552
right of pursuit on, 336 Part-Sovereign States, 441
shipwreck and distress on, 339
subsoil beneath the sea bed, 292, Passports :
dismissal of diplomatic envoys
357-361 through delivery of, 455
telegraph cables in, 353-355 of courier, 475
verification of flag on, 337 of diplomatic envoy, 448
wireless telegraphy on the, 355- Passport of vessels, 331
357 Peace Conferences at the Hague. See
See also Vessel. Hague.
Operation of nature as a mode of Peace Treaty of :
losing territory, 312 Aix-la-Chapelle(1668), 62
Oppenheim, Heinrich Bernard, 96 Aix-la-Chapelle (1748), 64, 183
Carlowitz, 63
Oppenheim, L., 104
INDEX 641
Peace Treaty of (continued) Plague See Sanitary Conventions.
Christiania, 75 Platen-Hallermund.caseof Count,
Copenhagen, 63 Plebiscite concerning cession of ter- 306
Frankfort, 290, 291, 606 ritory, 289, 364
Hubertsburg, 64 Pledge, 233, 288, 566
Kainardgi( 1774), 441 Pleins pouvoirs, 447
Kardis, 63 Podiebrad, 58
Karlstad, 75, 135 Poelitz, 96
Munster, 241 Poland, 566
Nymeguen, 62 partition of, 151, 310, 370
Nystaedt, 63 Polish revolution (1830), 413
Oliva, 63 Political agents :
Paris (1763), 64, 183, 314 public, 510 509
(1856), 68, 190, 247, 268, 277 325 secret,
514, 549, 564, 575, 578 spies, 510
(1898), 72 Political crime, conception of, 414-421
Prague (1866), 364 Political criminals, non-extradition of
Pyrenees, 62 411-422
Rastadt and Baden, 63 Pollicitations, 546
Roeskild, 63 Poison, Archer, 94
Ryswick, 63 Pope, position of the, 70, 157-162.
San Stefano, 71, 190, 549 See also Holy See.
Seoul, 75 Port Arthur leased to Russia, 233, 288
Shimonoseki, 72
Tilsit, 183, 186 Portugal :
Utrecht, 63, 183, 278 her claims to parts of the Open Sea,
Versailles (1783), 64, 278 316
Westminster (1674), 319 international position of, 77
Westphalia, 61, 151, 435, 587 passage of troops through territory
Pearl fishery off Ceylon and in the
Persian Gulf, 348 republic: proclaimed in, 76
Peary, Admiral, 292 Position
Pelagic Sealing Conference, 352 of armed forces abroad, 501
Persia, international position of, 164 of consuls, 493
Persian Gulf, pearl fishery in the, 348 of diplomatic envoys, 455
Persona grata of diplomatic envoy, 451 of diplomatic envoys as regards
Personal supremacy : third States, 469
consequences of, 178 Positivists, the, 90, 98
definition of, 177 Postal Union, Universal, 516
restrictions upon, 183 Powers of men-of-war over merchant-
violations of, 179 men of all nations, 335, 337
Personal union of States, 133 ?radier-Fodere, 95, 100
Pertille, 96 Drague, Peace Treaty of (1866), 364
Petit cabotage, 607 Precedence among envoys, 444
Pharmacopoeial formulas, unification 3redicates of heads of States, 174
of, 622 description, 308-311
Philip II. of Spain, 316 'residents of republics :
Philippine Islands, 72 not sovereigns, 433
Phillimore, Sir Robert, 94, 99 position of, 434
Phosphorus. See White phosphorus 'rivate International Law :
Phylloxera conventions, 618 conception of, 4
Physically impossible obligations, 549 Hague
624 Conventions concerning, 623,
Piedelievre, 95, 100
Pierantoni, 96 Mvateer, 341, 342
Pillau, alliance of, 551 Privateering abolished by Declara-
Pinkney, American commissioner 513 tion of Paris, 69, 588
Piracy, 203, 340-348 *rivilege s of :
Pirata non mutat dominium, 346 consuls, 494
Pirates : couriers, 475
jurisdiction over, 345 diplomatic envoys, 456
may be pursued into the territorial judges of the Prize Court, 522
maritime belt, 346 members of legation, 473 2s
VOL. I.
642 INDEX
Privileges of (continued) Rationale for the freedom of the Open

members of the Tribunal of the Sea, 327
Court of Arbitration, 521 Real Union of States, 123, 131, 134
Proconsul, 487 Rebus sic stantibus, clause of, 280,
Projectiles, Convention concerning, 573-574
594 Recall of diplomatic envoys, 477
Protection, treaties of, 604 Reception of diplomatic envoys, 449,
Protection : 451, 452
envoy's function of, 454 Reception of aliens :
of citizens abroad, 371, 372, 396, may be received conditionally only,
492
Protectorate, 144 392
no obligation to receive aliens, 390
Protectorate as precursor of occupa- Recognition :
tion, 296 of a change in the form of govern-
Proteges, 371 ment, 120
Protest as an international transac- of a change in the title of a State,
tion, 538 121, 173
Protestant States, 449 of a new head of a State, 425
Prussia becomes a Great Power, 64 of a State through appointment of
Pseudo-guarantees, 602 consul, 489
Publications, official, 620 of States, 116-121
Public Health, international office of, of insurgents as a belligerent Power,
518, 621
Public political agents, 509 Reconduction of foreigners, 402
Pufendorf, 4, 89, 112 Reconfirmation of treaties, 581
Punctationes, 546 Recousse, droit de, 347
Pursuit into the Open Sea, right of, Red Indians, 35
336 Redintegration, acquisition of na-
Pyrenees, Peace of the, 62 tionality by,376
Redintegration of treaties, 581
Regents, 432
Q Registration of Aliens, Act for the,
Quabbe, 604 398
Quidquid est in territorio est etiam de Reign of Terror, 412
territorio, 178, 231 Release, loss of nationality through,
Qui in territorio meo est, etiam meus 378
subditus est, 231 Religious disabilities, 364, 368
in Roumania, 388
Renewal of treaties, 580
R Renunciation as an international
Rachel, 90 transaction, 539
Radiotelegraphy, 236 Renunciation of a treaty, 571
office of, 516 Renvoi, droit de, 402
on the Open Sea, 355 Reprisals, 396
Radiotelegraphic Convention, 355
Union, 614 Republics
American,: 624
Railway transports and freights, Italian, 438
Union concerning, 614 Negro, 32 of, 433, 434
Office of, 517 Presidents
Rank of States, 171 Rescission of treaties, 571
Rastadt
63 and Baden, Peace Treaty of, Res extra commercium, 323
Residents, 445
Ratification of treaties : Responsales, 437
by whom effected, 558 Responsibility of States, 206-225
conception of, 553 for acts of courts of justice, 216
effect of, 561 for acts of diplomatic envoys, 215
form of, 557 for acts of heads of States, 214
not absolutely necessary, 554 for acts of insurgents and rioters, 222
not to be partial or conditional, 559 for acts of members of Governments,
rationale for, 554 215
refusal of, 556 for acts of officials and military
space of time for, 555 forces, 218
INDEX 643
Responsibility of States (continued) S
for acts of Parliaments, 216
for acts of private individuals, 221 Sa, case of Don Pantaleon, 475
Ees transit cum suo onere, 128, 288 Saalfeld, 96
Retinue of diplomatic envoys, 472-475 Sackville, case of Lord, 455
of monarchs abroad, 430 St. George's Channel, 266
Retorsion, 391, 396, 400 St. Lawrence,
243 navigation on the river,
Revenue Laws, 261
Re volt as a mode of losing territory, 312 St. Petersburg :
Rhine, the river, 241 Convention of, 614
Rhodian laws, 56 Declaration of, 70, 537, 590
Ricci-Busatti, 104 Sale of State territory, 287
Right : Salvage, 339
of asylum, 392, 461, 462 Samos, international position of, 144
of chapel, 467 San Domingo, 32
of contiguity, 295 San Marino,
146 international position of,
of legation, 440
of protection over citizens abroad, San Stefano,
568 Peace Treaty of , 71, 549,
395, 400
of pursuit on the sea, 336 Sandona, 96
Right of legation : Sanitary Conventions, 620
by whom exercised, 442 Sanitary laws, 261
conception, 440 Sanitation, International Council of,
not possessed by a revolutionary at Bucharest, 515
party recognised as a belligerent Santa Lucia, case of, 313
Power, 442 Sarawak, 282
what States possess the, 441 Sarpi, Paolo, 319
Rights of mankind, 35, 367, 369 Savarkar, case of, 410
Rights of Nations, Declaration of, 35, Scheldt, the river, 241
65 Schmalz, 95
Rioters, reglement of the Institute Schmauss, 102
of International Law concerning Schnaebele, case of, 511
Acts of, 224 Schools of International Jurists, 82, 89
Ripperda, case of the Duke of, 461 Scientific Research, Unions in the
Riquelme, 97 interest of, 625, 626
Rivers, 239 Scott, James Brown, 104
abandoned beds of, 302 Scott, Sir William, 98. See also Lord
international, 240 Stowell.
South American, 242 Sea-brief, 331
utilisation of the flow of, 243 Sea-letter, 331
See also Navigation. Seal fisheries in the Behring Sea, 351 ,
Rivier, 97, 101, 103 623
Roeskild, Peace Treaty of, 63 Sealing Conference, pelagic, 352, 623
Rolin, 103 Secret political agents, 510
Roman Catholic Church, 8 Secret protocol, 555
Roman Law, 283 Secretaries of Legation, 472
Romans, their rules for international Secretary for Foreign Affairs, 435
relations, 50 Seismologic
625 Association, International,
Rome, Congress at, 613
Ross, case of Bishop, 443 Selden, John, 89, 318
Roumania :
Convention of 1877 with Russia, Self-jurisdiction :
of diplomatic envoys, 468
597 of monarchs abroad, 429, 430
independence of , 71 ; restricted, 183 Self-preservation, 184-187
treatment of Jews in, 388 Semi-sovereign. See Half- and Part-
Rousseau, J. J., 113 Sovereign.
Rousset, 102 Seneca, 230, 283
Royal honours, States enjoying, 172 Senigallia, 104
Russian Ambassador, case of, 457 Seoul, Peace of, 75
Rutherford, 90 Servia, independence of, 71
Rymer, 102 restricted, 183
Ryswick, Peace Treaty of, 63 Servitudes, 273-281
644 INDEX
Servitus in faciendo consistere nequit, States (continued)

279 part-Sovereign, 141
Servitutes juris gentium naturales, 274 personal supremacy of, 177
Servitutes juris gentium voluntaries, 274 personal union of, 133
Shenandoah, case of the, 343 possessing royal honours, 172
Shimonoseki, Peace Treaty of, 72, 568 rank of, 171
Ship. See Vessel. real union of, 123, 131, 134
Ship-papers, 331, 491 recognition of, 116-121
Shipwreck on the Open Sea, 339 responsibility of, 206-225
Siam, international position of, 164 self-preservation of, 184-187
Slave-trade, 66, 348, 368, 588, 591, suzerain, 140, 190
622 territorial supremacy of, 177
Smith, F. E., 94 titles of, 173
Solent, the, 266 under protectorate, 144
Solferino, battle of, 544 vassal, 140
Sorel, Albert, 95 State servitudes, 273-281
Soudan, international position of, 232 State territory :
Soule, case of, 470 cession of, 285
Sound dues, 267 definition of, 229
Sources of International Law, 20 different kinds of, 230
South African Republic, 74, 142, 181, different parts of, 235
304, 441 dismembered, 230
her alliance with the Orange Free importance of, 231
State, 597 inalienability of parts of, 238
Sovereignty : integrate, 230
conception of, 110, 112, 177 loss of, 311-314
divisibility of sovereignty con- modes of acquiring, 281-284
tested, 110 servitudes on, 273-281
history of meaning of sovereignty, States under protectorate cannot cede
111-115 territory without consent of the
in contradistinction to suzerainty, superior State, 286
141 Status quo :
Sovereignty of monarchs, 428 in the Baltic, 604
Spheres of influence, 297 in the Mediterranean, 603
Spies, 510 in the North Sea, 603, 604
Spirit-trade in certain parts of Africa, treaties guaranteeing maintenance
591
of, 602-604
Stettin, Bay of, 263
Spitzbergen, 232
Sponsio, 545 Stockton, Capt. C. H., 38
Springer, case of, 461 Stoerk, 103
State, conception of, 108 Story, 137
State property. See State territory. Stowell, Lord, 98, 302
States : Straits, 265
American, 163 of Kara, 266
a product of law, 14 of Kertch, 267
changes of Magellan, 267
125 in the conditions of, 121- of Yugor, 266
confederated, 135 Strupp, 102
dignity of, 174-177, 456 Stuart Pretender, the, 278
equality of, 20, 168 Suarez, 84
European, 162 Subject of a State, his position when
extinction of, 124 a diplomatic envoy of a foreign
Federal, 130, 136 State, 450
full- and not-full Sovereign, 109 Subjugation :
heads of. See Heads of States. conception of, 302
independence of, 177 consequences of, 305
intercourse of, 166, 199-201 in contradistinction to occupation,
jurisdiction of, 201-205 303
neutralised, 147-154 justification of, 304
new-born, 281 of the whole or of a part of enemy
non-Christian, 154, 497 territory, 304
order of precedence of, 172 veto by third Powers, 307
INDEX 645
Subjugation, acquisition of nationality Toll, maritime, 259
through, 306, 377 Tourkmantschai, Treaty of, 246
Subsoil, territorial, 235 Tourville, case of, 407
beneath the sea bed, 357 Trading Consular Officers, 485
Substitution of one treaty for another, Tradition of ceded territory, 288
571 Transactions :
Substitution, loss of nationality declarations, 536
through, 378 different kinds of, 536
Succession of States, 125-132 notifications, 537
Suez Canal, 249, 514, 591 protests, 538 539
Sugar Convention, 617 renunciation,
Office of, 517 Traffic on the Open Sea, 333
Sujets mixtes, 386 Transports, Central Office of Inter-
Sully, 58 national, 517
Sully, case of, 468 Transvaal. See South African Re-
Sun Yat Sen, case of, 464
Suzerainty, conception of, 141 Trawling
public.in vention
Prohibited Areas Pre-
Sweden, her sovereignty over the Act, 265
Baltic, 316 Treaties :
Sweden-Norway, Real Union dis- accession and adhesion to, 568, 569
solved, 135 binding force of, 541, 545, 546
Swiss Confederation reorganised, 61 cancellation of, 578
Switzerland, neutralisation of, 66, commercial and consular, 488,
151, 588 605-612
member-States conclude treaties, conception of, 540
544 constitutional restrictions concern-
without a maritime flag, 327 ing the treaty-making power, 545
different kinds of, 540
effect of, 561
expiration
576 and dissolution of, 570-
Tabula Amalfitana, 56 extradition, 412-422
Taylor, Hannis, 95, 101 form of, 550
Telegraph cables : fulfilment of, 570
Convention for the protectionTof, interpretation of, 582
354 law-making, 23, 541, 587
in the Open Sea, 353 lists of, 94, 102
Telegraph Union, Universal, 516 means of securing performance of,
Telegraphy, wireless, on the Open 565
Sea, 355 objects of, 548
Terrae potestas finitur\ ubi finitur of alliance, 595
armorum vis, 257 of cession, 290
Territorial atmosphere, 236 of extradition, 404-406
Territorial supremacy : of guarantee, 599
consequences of, 178 of protection, 604
definition of, 177 of subsidy, 598
restrictions upon, 182, 273 pactum de contrahendo, 546
violations of, 179 participation of third States in, 567
Territorial waters, 235 parties to, 543, 546-548
contrasted with Open Sea, 321 parts of, 552
Territorial Waters Jurisdiction Act, pseudo-guarantees, 602
29, 257, 260, 266 punctationes, 546
Territorium clausum, 230 ratification of, 553—561
Territorium dominans, 276 reconfirmation of, 581
Territorium serviens, 276 redintegration of, 581
Territory. See State Territory. regarding spheres of influence, 297
Textor, 90 renewal of, 580
Tezkereh, 389 sources of International Law, 23
Thalweg, the, 271 voidance of, 576
ibet, international position of, 164 who can exercise the power of
Titles of States, 173 making, 543
Thomasius, 90 Triepel, 102
646 INDEX
Troppau, Congress of, 67 Usurper, 427

Tucker, 95 Utrecht, Peace of, 63, 278, 583
Tunis, international position of, 147,
164
Tunnel, proposed Channel, 359
Turkey, reception into the Family of Vaderland, case of the, 357
Nations through Peace Treaty of Vassal States, 140
Paris (1856), 32, 69 cannot be parties to offensive alli-
Twiss, Sir Travers, 94, 99, 249 ances, 142, 597
cannot cede territory without con-
U sent of suzerain, 286
competent to appoint consuls, 488
Ullmann, 96, 101 competent to make treaties, 544
Ulpianus, 315 competent to send public political
Unions concerning : agents, 509
Agriculture, 617 of Great Britain, Indian, 142
birds useful to agriculture, 618 Vatican, the, 158, 449
Cholera and plague, 620 Vattel, 93, 320, 405
Coinage, 619 Venezuela, blockade of (1902), 74
Copyright, 615 Venice :
Customs tariffs publication, 616 ceded by Austria to France, 287
Geodetic work, 625 her sovereignty over the Adriatic
Humanity, 622 Sea, 316
Hydrographic work, 626 Verdun, Treaty of, 54
Industrial property, 616 Verification of flag, 335
Literature and Art, 615 Verona, Congress of, 67
Metric system, the, 619 Versailles, Peace of, 64, 567
Motor Vehicles, 615 Vessels :
Night work of women, 618 arrest of, 338
Official publications, 620 collision of, 333
Pelagic Sealing, 623 distress of, 339, 356
Pharmacopceial formulas, 622, 623 names of, 332, 350
Phylloxera epidemics, 618
Post, 613 papers of,
search of, 338
331
Private International Law, 623 territorial quality of, when on the
Public health, 621 Open
Radiotelegraphy, 614 visit of, Sea,
337 332
Railway transport, 614 See also Men-of-War.
Sanitation, 620 Veto concerning a cession of territory.
Science, 625 289
Seismology, 625 concerning subjugation, 307
Submarine cables, 614 Vexaincourt, case of, 219
Sugar, 617 Vice-consul, 486
Telegraphs, 614 Victor Emanuel, King of Italy, 426
Transport, 614 Victoria, 84
White phosphorus, the use of, 618 Vienna Congress, 65, 75
White slave traffic, 622, 623 (1815), 241, 280, 444, 587, 588
Wild animals in Africa, 623 Vienna, Treaty of (1878), 364
Unions, object of, 612 Villaf ranca, Preliminary Peace Treaty
United States of America :
become a Great Power, 70, 171, 312 of, 544
Virginius, case of the, 187
become a member of Family of Visit of vessels, 337
Nations, 64 Vital change of circumstances, 573
intervene in the revolt of Cuba, 72 Voidance of treaties :
member-States cannot conclude through extinction of object con-
treaties, 544 cerned, 577
naval war code of, 38 through extinction of one of the
Universal Postal Union, 613
Universal Telegraph Union, 614 parties,impossibility
through 576 of execution,
Usage, international, in contradis- 577
tinction to international custom, through realisation of purpose, 577
22 Volkerrechts-Indigenat, 367
INDEX 647
w Westphalian Peace, 61, 151, 435, 587
Wharton, 95, 100
Waddington, case of, 475 Wheaton, 95, 98
Walker, Thomas Alfred, 94, 100 White Phosphorus, Convention for
Wallachia, 441 the prohibition of the use of, 618
War, Convention concerning Laws of, White Phosphorus Matches Prohibi-
593 tion Act, 618
Convention concerning rights and White Sea fisheries, 348
duties of neutrals in, 593 White slave traffic, 623
Laws of (U.S.A.), 36 Wild animals, &c., in Africa, preserva-
Laws of (U.S.A.) at sea, 38 tion of, 623
Warsaw, non-admittance of consuls Wildman, Richard, 94
to, 488 William of Holland, case of King, 432
Washburne, case of, 471 Wilson, 95, 101
Washington : Wireless telegraphy, 236
Boundary Treaty of (1908), 272, 513 on the Open Sea, 355
Congress of (1890), 304 Wisby, the maritime laws of, 56
Maritime Conference of (1889), 333 Wismar, pledged by Sweden to
Pelagic Fishing Conference of, 352 Mecklenburg, 233, 288
Treaties (1854) and (1871), concern- Wolff, Christian, 92
ing navigation on the river St. Women. See Night-work of women.
Lawrence, 243 Woolsey, 95, 103
Treaty (1857) concerning the Wrech, case of Baron de, 465
Sound Dues, 268
Treaty (1901) concerning the
Panama Canal, 251
Treaty (1904), 182
Waters, territorial. See Territorial Young Turks movement, 76
waters. Yugor Straits, 266
Webster, Mr., U.S.A., Secretary of
Foreign Affairs, 502
Weights and Measures, International
Union of, 619
Office of the Union of, 516 Zanzibar, international position of,
Wei-Hai-Wei leased to Great Britain, 147
233, 288 Zone for revenue and sanitary laws
Welwood, William, 318 extended beyond the maritime
Wenck, 102 belt, 261
Westlake, 94, 101 Zouche, 88
Westminster, Treaty of (1674), 319 Zuider Zee, 263
END OF VOL. I.
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INTERNATIONAL LAW

L. OPPENHEIM, M.A., LL.D.

LONGMANS, GREEN AND CO.

All rights reserved

EDWARD ARTHUR WHITTUCK

WHOSE SYMPATHY AND ENCOURAGEMENT

HAVE ACCOMPANIED THE PROGRESS OF THIS WORK

FROM ITS INCEPTION TO ITS CLOSE

THE course of events since 1905, when this work first

the flow of rivers) ; §§ 287a and 2876 (concerning Wire-

thorough understanding of the wide scope of the subject.

THE books referred to in the bibliography and notes are, as a

Heffter Heffter, Das Europaische Volkerrecht der XI

Merignhac Merignhac, Traite De Droit Public Inter-

Phillimore Phillimore, Commentaries upon Interna-

Montngnini, § 106, p. 160 note 1 ; Sa, Don Pantaloon, § 404, p. 475

THE FIRST VOLUME

I. The Law of Nations as Law

II. Basis of the Law of Nations

11. Common Consent the Basis of Law . . "•'*.•' . . 15

III. Sources of the Law of Nations

IV. Relations between International and Municipal Law

V. Dominion of the Law of Nations

VI. Codification of the Law of Nations

I. Development of the Law of Nations before Grotius

II. Development of the Law of Nations after Grotius

III. The Science of the Law of Nations

2. Forerunners of Grotms . . . . '. ; . i'" • 83

I. Sovereign States as International Persons

II. Recognition of States as International Persons

III. Changes in the Condition of International Persons

IV. Succession of International Persons PAGE

V. Composite International Persons

VI. Vassal States

VIII. Neutralised States

IX. Non-Christian States

X. The Holy See

XI. International Persons of the Present Day

108. European States ;*. . 162

II. Equality, Rank, and Titles

IV. Independence and Territorial and Personal Supremacy

I. On State Responsibility in General

II. State Responsibility for International Delinquencies

III. State Responsibility for Acts of State Organs

IV. State Responsibility for Acts of Private Persons

I. On State Territory in General

168. Conception of State Territory ... . „ , . . 229

185. State Property of Maritime Belt contested . . . 265

IX. Boundaries of State Territory

XI. Modes of acquiring State Territory

236. Conception of Conquest and of Subjugation .... 302

XVII. Loss of State Territory

I. Rise of the Freedom of the Open Sea

II. Conception of the Open Sea

III. The Freedom of the Open Sea

IV. Jurisdiction on the Open Sea

272. Conception of Piracy 340

VI. Fisheries in the Open Sea

VII. Telegraph Cables in the Open Sea