Chapter 80
International Law. A Treatise.
Volume II.
by La.s.sa Francis Oppenheim.
PREFACE
TO THE SECOND EDITION
The course of events since 1906, when the second volume of this work first made its appearance, and the results of further research have necessitated, as in the case of the first volume, the thorough revision of the text, the rewriting of many portions, and the discussion of a number of new topics. The additions to this volume are even more numerous than those to the first, with the consequence that, in spite of the typographical devices explained in the preface to the second edition of the first volume, the text of this volume has been increased by one hundred pages. The increase is, in some measure, due to the fact that the thirteen Conventions of the Second Hague Peace Conference, and, further, the Declaration of London, are fully discussed and expounded.
But the increase is also due to the fact that a number of other new topics have been discussed; I will only mention the questions whether enemy subjects have _persona standi in judicio_ (-- 100_a_), and whether trading with enemy subjects is permitted (-- 101).
The system of the work, with but occasional slight alterations in arrangement and the headings of the sections, remains the same. In those cases, however, in which a portion had to be entirely rewritten--as, for instance, that on Enemy Character, that on Commencement of War, and that on Unneutral Service--the arrangement of the topics differs from that in the first edition, and the headings of the sections also differ. Apart from many new sections, a whole chapter treating of the proposed International Prize Court has been added at the end of the volume.
Since some of the Conventions produced by the Second Peace Conference, and, further, the Declaration of London, have not yet been ratified, the task of the writer of a comprehensive treatise on International Law is very difficult: he must certainly not treat the rules in these unratified doc.u.ments as law, but, on the other hand, he must not ignore them. For this reason the right method seemed to be to give everywhere the law hitherto prevailing, and to give also the changes in the law which are proposed by these unratified doc.u.ments. I venture to hope that this method will enable the reader to form a judgment of his own with regard to the merits of the Declaration of London. I have not concealed my conviction that the ratification of this Declaration would mark great progress in the development of International Law, since it offers a common agreement upon a number of subjects concerning which there has been hitherto much discord both in theory and practice. But I have endeavoured to put the matter impartially before the reader, and I have taken special care to draw attention to very numerous points which have not been settled by the Declaration of London.
In revising and rewriting this volume I have remained true to the principle of impartiality, neither taking the part of any one nation, nor denouncing any other. The discredit which International Law concerning War and Neutrality suffers in the minds of certain sections of the public is largely due to the fact that many writers have not in the past approached the subject with that impartial and truly international spirit which is indispensable for its proper treatment.
Many friends of the book have asked that the second edition might, in the Appendix, offer an English translation of the French texts concerned. I was prepared to accede to their request, but had to abstain from doing so on account of the fact that the addition of a translation would have made the volume too bulky for convenience; the new Conventions of the Second Hague Peace Conference, the Declaration of London together with the Report of the Drafting Committee of the Naval Conference of London, the Naval Prize Bill of 1911, and the Geneva Convention Act of 1911, all of which necessarily had to be added, having increased the Appendix very considerably.
It has been the aim of my a.s.sistants and myself to make the quotations in this and the preceding volume as correct as possible. However, considering that there are many thousands of citations, it would be a miracle if there were not numerous mistakes and misprints in them, in spite of the great care which has been bestowed upon the matter. I shall be most grateful, therefore, if readers will kindly draw my attention to any inaccuracy they may notice.
My thanks are once more due to reviewers and readers who have drawn my attention to mistakes and misprints in the first edition; and I am again indebted to Miss B. M. Rutter and Mr. C. F. Pond for their valuable a.s.sistance in reading the proofs and in drawing up the Table of Cases
L. OPPENHEIM.
PART I
SETTLEMENT OF STATE DIFFERENCES
CHAPTER I
AMICABLE SETTLEMENT OF STATE DIFFERENCES
I
STATE DIFFERENCES AND THEIR AMICABLE SETTLEMENT IN GENERAL
Twiss, II. ---- 1-3--Ullmann, ---- 148-150--Bulmerincq in Holtzendorff, IV. pp. 5-12--Heffter, ---- 105-107--Rivier, II. -- 57--Bonfils, No. 930--Despagnet, No. 469--Pradier-Fodere, IV. Nos.
2580-2583--Calvo, III. ---- 1670-1671--Martens, II. ---- 101-102--Fiore, II. Nos. 1192-1198, and Code, No. 1246--Wagner, _Zur Lehre von den Streiterledigungsmitteln des Volkerrechts_ (1900.)
[Sidenote: Legal and political International Differences.]
-- 1. International differences can arise from a variety of grounds.
Between the extremes of a simple and comparatively unimportant act of discourtesy committed by one State against another, on the one hand, and, on the other, so gross an insult as must necessarily lead to war, there are many other grounds varying in nature and importance. State differences are correctly divided into legal and political. Legal differences arise from acts for which States have to bear responsibility, be it acts of their own or of their Parliaments, judicial and administrative officials, armed forces, or individuals living on their territory.[1] Political differences are the result of a conflict of political interests. But although this distinction is certainly theoretically correct and of practical importance, frequently in practice a sharp line cannot be drawn. For in many cases States either hide their political interests behind a claim for an alleged injury, or make a positive, but comparatively insignificant, injury a pretext for the carrying out of political ends. Nations which have been for years facing each other armed to the teeth, waiting for a convenient moment to engage in hostilities, are only too ready to obliterate the boundary line between legal and political differences. Between such nations a condition of continuous friction prevails which makes it difficult, if not impossible, in every case which arises to distinguish the legal from the political character of the difference.
[Footnote 1: See above, vol. I. -- 149.]
[Sidenote: International Law not exclusively concerned with Legal Differences.]
-- 2. It is often maintained that the Law of Nations is concerned with legal differences only, political differences being a matter not of law but of politics. Now it is certainly true that only legal differences can be settled by a juristic decision of the underlying juristic question, whatever may be the way in which such decision is arrived at.
But although political differences cannot be the objects of juristic decision, they can be settled short of war by amicable or compulsive means. And legal differences, although within the scope of juristic decision, can be of such kinds as to prevent the parties from submitting them to such decision, without being of a nature that they cannot be settled peaceably at all. Moreover, although the distinction between legal and political differences is certainly correct in theory and of importance in practice, nevertheless, in practice, a sharp line frequently cannot be drawn, as has just been pointed out. Therefore the Law of Nations is not exclusively concerned with legal differences, for in fact all amicable means of settling legal differences are likewise means of settling political differences, and so are two of the compulsive means of settling differences--namely, pacific blockade and intervention.
[Sidenote: Amicable in contradistinction to compulsive settlement of Differences.]
-- 3. Political and legal differences can be settled either by amicable or by compulsive means. There are four kinds of amicable means--namely, negotiation between the parties, good offices of third parties, mediation, and arbitration.[2] And there are also four kinds of compulsive means--namely, retorsion, reprisals (including embargo), blockade, and intervention of third States. No State is allowed to make use of compulsive means before negotiation has been tried, but there is no necessity for the good offices or mediation of third States, and eventually arbitration,[3] to be tried beforehand also. Frequently, however, States nowadays make use of the so-called Compromise Clause[4]
in their treaties, stipulating thereby that any differences arising between the contracting parties with regard to matters regulated by, or to the interpretation of, the respective treaties shall be settled through the amicable means of arbitration to the exclusion of all compulsive means. And there are even a few examples of States which have concluded treaties stipulating that all differences, without exception, that might arise between them should be amicably settled by arbitration.[5] These exceptions, however, only confirm the rule that no international legal duty exists for States to settle their differences amicably through arbitration, or even to try to settle them in this way, before they make use of compulsive means.
[Footnote 2: Some writers (see Hall, -- 118, and Heilborn, _System_, p.
404) refuse to treat negotiation, good offices, and mediation as means of settling differences, because they cannot find that these means are of any legal value, it being in the choice of the parties whether or not they agree to make use of them. They forget, however, the enormous political value of these means, which alone well justifies their treatment; moreover, there are already some positive legal rules in existence concerning these means--see Hague Arbitration Treaty, articles 2-7 and 9-36--and others will in time, no doubt, be established.]
[Footnote 3: Except in the case of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals. See Convention II.; above, vol. I. -- 135, p. 192; and below, -- 19.]
[Footnote 4: See above, vol. I. -- 553.]
[Footnote 5: See below, -- 17.]
II
NEGOTIATION
Twiss, II. -- 4--Lawrence, -- 220--Moore, VII. -- 1064--Taylor, ---- 359-360--Heffter, -- 107--Bulmerincq in Holtzendorff, IV. pp.
13-17--Ullmann, -- 151--Bonfils, Nos. 931-932--Despagnet, Nos. 470 and 477--Pradier-Fodere, VI. Nos. 2584-2587--Rivier, II. -- 57--Calvo, III. ---- 1672-1680--Martens, II. -- 103--Nys, III. pp.
56-58.
[Sidenote: In what Negotiation consists.]
-- 4. The simplest means of settling State differences, and that to which States always resort before they make use of other means, is negotiation. It consists in such acts of intercourse between the parties as are initiated and directed for the purpose of effecting an understanding and thereby amicably settling the difference that has arisen between them.[6] Negotiation as a rule begins by a State complaining of a certain act, or lodging a certain claim with another State. The next step is a statement from the latter making out its case, which is handed over to the former. It may be that the parties come at once to an understanding through this simple exchange of statements. If not, other acts may follow according to the requirements of the special case. Thus, for instance, other statements may be exchanged, or a conference of diplomatic envoys, or even of the heads of the States at variance, may be arranged for the purpose of discussing the differences and preparing the basis for an understanding.
[Footnote 6: See above, vol. I. ---- 477-482, where the international transaction of negotiation in general is discussed.]
[Sidenote: International Commissions of Inquiry.]
-- 5. The contracting Powers of the Hague Convention for the peaceful settlement of international differences deem it expedient and desirable that, if the ordinary diplomatic negotiation has failed to settle such differences as do not involve either honour or vital interests, the parties should, so far as circ.u.mstances allow, inst.i.tute an International Commission of Inquiry[7] for the purpose of elucidating the facts underlying the difference by an impartial and conscientious investigation. The Convention of 1899 had only six articles (9-14) on the subject. The Second Conference of 1907, profiting by the experience gained by the Commission of Inquiry in the Dogger Bank[8] case, the first and as yet only occasion on which a Commission of Inquiry was inst.i.tuted, remodelled the inst.i.tution, and Convention I. treats of the subject in twenty-eight articles (9-36). The more important stipulations are the following:--
(1) The Commissions are to be const.i.tuted by a special treaty of the parties, which is to determine the facts to be examined, the manner and period within which the Commission is to be formed, the extent of the powers of the Commissioners, the place where the Commission is to meet and whether it may remove to another place, the languages to be used by the Commission and parties, and the like (articles 9-10). If the treaty does not determine the place where the Commission is to sit, it shall sit at the Hague; if the treaty does not specify the languages to be used, the question shall be decided by the Commission; and if the treaty does not stipulate the manner in which the Commission is to be formed, it shall be formed in the manner determined by articles 45 and 57 of Convention I. (articles 11-12). The parties may appoint a.s.sessors, Agents, and Counsel (articles 10, 13, 14).
(2) The International Bureau of the Permanent Court of Arbitration acts as Registry for the Commissions which sit at the Hague; but if they sit elsewhere, a Secretary-General is to be appointed whose office serves as Registry (articles 15-16).