B 350883
$
I
C
1837
ARTES
SCIENTIA
VERITAS
LIBRARY
OF THE
UNIVERSITY OF MICHIGAN
TIMURIDUS uwis
:,:.
TCEBOR
QUERIS-PENINSULAM-AMONA
WISATA
CIRCUMSPICE
JUW.U.V.
(U.C.W.O.,WAR
ISH MUIHINOSIINIK
.
ORII
1
THE GIFT OF
Coopnenie Encomment
STI
ух
1890
0593
है
INTERNATIONAL LAW
CODIFIED
AND
ITS LEGAL SANCTION
OR
THE LEGAL ORGANIZATION OF THE SOCIETY
OF STATES
Le Droit sera un jour le souverain du Monde
MIRABEAU
BY
PASQUALE FIORE
PROPESSOR OF INTERNATIONAL LAW AT THE ROYAL UNIVERSITY
OF NAPLES; SENATOR OF ITALY; MEMBER OF THE
INSTITUTE OF INTERNATIONAL LAW
TRANSLATION FROM THE FIFTH ITALIAN EDITION
WITH AN INTRODUCTION
BY
EDWIN M. BORCHARD
BOMETIME ASSISTANT SOLICITOR, DEPARTMENT OF STATE
PROFESSOR OF LAW, YALE UNIVERSITY SCHOOL OF LAW
NEW YORK
BAKER, VOORHIS AND COMPANY
1918
COPYRIGHT, 1918
BY,
BAKER, VOORHIS & COMPANY
1
PREFACE
The translator's admiration for his friend, Pasquale Fiore,
made him the more eager to pay a just tribute to a constructive
scholar of international renown by accepting the invitation of the
Division of International Law of the Carnegie Endowment to in-
troduce to the English-speaking public Fiore's "International
Law Codified.” The Carnegie Endowment, in offering the book
to the American public is carrying out its plan of widening the
horizon of American students in the field of international law, as
is already being done with marked success by the Institute of
Criminal Law and the Association of American Law Schools in the
fields of criminology, philosophy of law and legal history.
The book does not purport to be a code of existing international
law, but rather a systematic body of rules evolved by the author
out of his accurate knowledge of positive law and of the defects
of the prevailing system and submitted for adoption to the nations
of the world for the better legal regulation of their mutual interests
and relations. In this day of reorganization of the international
order, Fiore's proposals for reform cannot but meet with attentive
consideration, and the scientific and practical training of the author
must lend weight to his recommendations. The book, begun in the
author's fiftieth year, embodies the fruits of long thought upon and
extensive experience with the problems with which it deals. The
principal reforms suggested by the author are more specifically set
forth in the Introduction.
E. M. B.
New Haven, Conn.
September 1, 1917.
324006
iii
INTRODUCTION
International law, in so far as it relates to the rules governing
war, is to-day undergoing the same experience it has had many
times in the last two hundred years. Each of the great conflicts
in the history of international relations has threatened with de-
struction the most sacred institutions of the law of nations;
yet, notwithstanding, the progress of civilization has wit-
nessed the tissue of that law emerge from each crisis tougher and
firmer.
The Thirty Years' War, the Wars of Louis XIV, the many
continental wars of the eighteenth century (particularly those of
its last two decades), the Napoleonic struggles, have each been
followed by an era of law-making designed to establish a more
orderly regulation of international relations. The necessity for
greater order and the strengthening of international law has been
emphasized in the last half-century, when the remarkable develop-
ment of commerce and industry, with the realization of the inter-
dependence of nations, led to several international conferences
terminating with those of The Hague, whose activities seemed to
bring very near the day of the international legislature. In trou-
blous times like the present, it is not sufficiently recalled that al-
though international relations in time of peace have grown con-
tinually more complex, the rules governing those relations are
commonly observed and judicially enforced. Moreover, the vast
growth in arbitration during the last century affords unmistakable
evidence of the toughening fibre of the law and its processes. Even
the laws governing war are not without their sanction, as was
shown in the Russo-Japanese war. Only when a majority of the
Great Powers, impelled by the exigencies of the moment and their
physical ability to depart from its recognized precepts, undertake
to violate international law-fortunately only an infrequent occur-
rence does the weakness of the system afford ground for com-
plaint and manifest the necessity for improvement. Its defects
consist, therefore, not in the absence of commonly recognized rules
V
vi
INTRODUCTION
to govern the situations usually arising, nor even in their general
non-observance; but rather in the physical inability-under the
present international organization--to enforce its sanctions when
the Great Powers simultaneously disregard its provisions, and in
the lack of a sufficiently strong legal organization of the nations
of the world to compel joint action if the rules are violated by any
member of the society of nations. This end, to bring about the
reign of law among nations and to establish a legal organization
among them, with agencies and instrumentalities capable of en-
forcing the rules of law, has been the aim of numerous thinkers
and publicists, among the foremost of whom is the great Italian
jurist, Pasquale Fiore.
Fiore, the leading Italian authority on public international law,
was born April 8, 1837, and devoted a long and useful life to the
study and development of international law—as a jurist, teacher,
writer, Senator of Italy and legal adviser to the Italian govern-
ment. With the usual preparation in law, theology, and philos-
ophy-which subject he taught for two years at Cremona-he
entered in 1863 upon his career in the science with which he will
always be identified, by accepting an appointment as professor of
international law at the University of Urbino. In 1865 he was
called by the University of Pisa; thence in 1876, he went to Turin
and in 1882 to Naples, where he occupied the chair of international
law—and for some time that of comparative law—until the time
of his death, December 17, 1914.
In 1865, while professor at Pisa, be published the first edition
of his well-known work Diritto internazionale pubblico, the first
systematic modern treatise on international law published in Italy.
As a disciple of the great Italian jurist, Mancini, the father of the
school and doctrine of nationality, Fiore published in 1869 his
Diritto internazionale privato. Both works were marked by orig-
inality and an objective scientific point of view then rare among
writers on international law. His active participation as consulting
counsel in numerous cases and his unremitting labors in the con-
structive work of the Institute of International Law progressively
added to the scientific and practical merits of his treatise on public
international law as, with the years, new editions were issued, both
in Italian and in foreign languages.
Fiore's aspirations for the legal organization of the society of
INTRODUCTION
vii
nations and the safeguarding of international law by joint action
may be traced to the Wolffian doctrines of the magna civitas and
the Ciceronean principles of the universality of law. They were
fortified by his training in philosophy and in civil law, by his many
years of study of comparative law, by his legal activities as private
counsel and adviser of his Government, and finally by his profound
knowledge of history and of international law. With this equip-
ment, fortified by experience, he began, in his fiftieth year, the
preparation of the constructive work herewith présented to the
English-speaking world under the title “International Law Codi-
fied.”
In this work, which was first published in 1890 under the title
Il diritto internazionale e la sua sanzione giuridica, Fiore has syn-
thesized the fruits of his many years of study and experience by
setting forth a plan of international organization with the rules
of law to govern the relations between states. His work is not a
code of existing international law, like that of Bluntschli and of
Field, but a proposed body of rules which should govern states
in their mutual relations, de lege ferenda. His unusual equipment
and authority give weight to his recommendations. His proposals
are founded in part upon positive law, in part upon the accumu-
lated labors of the Institute of International Law in the reform of
international law, in which Fiore took so prominent a share, and
in part upon his own solutions for the existing defects in the law
of nations which matured thought and experience had dictated. It
was a matter of justifiable pride with him that the Hague Confer-
ences had transformed into legislation so many of the rules he had
advocated and so many of the proposals arising out of the collective
scientific labor of conferences in which he had participated. His
ideal of the magna civitas and the universalization of international
law seemed to him to approach realization with the successful
meetings of the Hague Conferences. Yet he expressly rejected
the implication that all his proposals could be immediately trans-
lated into positive law, a reservation which the present crisis in
international relations has justified.
Throughout his work he has endeavored to find a feasible rem-
edy for the recognized defects of the existing system—the divergent
doctrines in certain particulars of the two principal schools of
international law, the Anglo-American and the continental, es-
viu
INTRODUCTION
pecially in their views as to the relation of international law to
municipal law; the absence of any recognized method to change
a rule of international law or to repeal an antiquated or obsolete
rule, inapplicable to changed conditions; the absence of any
method to interpret uniformly an obscure or ambiguous rule of
law; the want of any machinery to compel nations to submit their
disputes to arbitration; and the lack of any substitute for force
and war in effecting political changes, a phenomenon which history
has shown to be inevitable.
To meet these admitted defects of the existing order he has pro-
posed (1) the periodical meeting of a Congress which shall have
the power to legislate for the magna civitas and provide means for
the enforcement of the rules of law established, by authorizing
collective action by states; and (2) the convening of a Conference,
which shall, on the request of any state, settle political contro-
versies, interpret ambiguous rules of law, and insure the execution
of rulings of the Congress by referring the case to arbitration or to
the Congress for executive action. His proposals for the pacific
settlement of international disputes have already been fully
adopted and probably his proposal for compulsory arbitration of
certain types of differences will some day find universal recognition.
Among the numerous reforms and progressive doctrines which
Fiore advocated, several will command the attention of statesmen
and thinkers:
He contends that every individual has international rights as a
human being-apart from his rights as a citizen of a particular
state-which must be universally respected. These "international
rights of man" include the unrestricted freedom of migration and
the freedom of expatriation without the state's consent. He would
place limitations upon the arbitrary power of the State; thus, he
denies the State's right to exclude foreigners or to prohibit them
from acquiring real property.
In the elaboration of his plan for the institution of the Congress,
the Conference, and the Court of Arbitration, it is interesting to
observe his deference to public opinion as the controlling agency
in the shaping of foreign policy. He is an ardent champion of the
democratization of foreign policy; and his denunciation of the
evils of secret diplomacy, with the result that whole peoples are
bound to treaties and alliances without their knowledge or con-
INTRODUCTION
ix
sent, lend authoritative support to the principles of the Union
for Democratic Control in England.
Fiore believed firmly in the principle that international law could
at no period be permanent and definitive, but that it changed and
grew with the times. He was, therefore, of the opinion that the
Congress should not be a permanent legislature, but should meet
only at periodic intervals or as exigencies required. He believed
that the people should be specially represented in the Congress,
because they have international rights distinct from those apper-
taining to the State, and the force of public opinion he would es-
pecially respect. But he would confine the right to vote only to the
well-informed classes.
He was opposed to any permanent confederation of states where
the Great Powers prevailed, and he decried any combination to
maintain the status quo, such as Rousseau's Project of Perpetual
Peace, in which some may find a prototype for the proposed League
to Enforce Peace. He considered arbitration as inadequate, as
most of the complex questions which disturb the peace of nations
cannot be submitted to arbitration. To deal with these questions,
he would call the Conference of states, a quasi-judicial body vested
with power to adjust political differences, and an instrument de-
signed to take the place of force in the settlement of international
problems. It is not at all improbable that the world possesses or
can develop statesmen of sufficient breadth and vision to accom-
modate the political equilibrium to the economic and social virility
of peoples, and thus replace the present artificial system by which
conflicting ambitions without regard to larger social necessities
ultimately lead to destructive clashes.
In the new edition from which the present translation has been
made Fiore bas substituted for the term "natural law" the term
“rational law,” which he regards as the law of reason and as a
residuary source from which positive law is derived.
It is Fiore's view and one which already has many earnest ad-
herents, that whenever a state violates a rule of international law
in its relations with another state, the immediate damage arising
from the wrongful act not only violates the right of the injured
state but also that of all the states jointly and severally interested
in the legal organization of the society of states. Hence he posits
the doctrine that all the measures and institutions designed to
X
INTRODUCTION
assure the authority of international law must be considered within
the collective protection of all the states which established them.
He strongly supports collective intervention in behalf of the rights
of humanity.
He manifests excellent understanding of the true purport of the
Monroe doctrine by denying its efficacy to prevent European
nations from prosecuting the diplomatic claims of their citizens
against Latin-American states and, if necessary, undertaking col-
lective interposition to effect that purpose. He rejects the exag-
gerated views of its meaning which prevail throughout the world
and, not least of all, in the United States. Moreover, in the matter
of international claims, he considers that no state should deny a
claimant the right to bring suit against it, if an adjustment can-
not be made diplomatically. While he suggests no method of pro-
cedure, others have advocated an International Court of Claims.
In the chapter on the American Institute of International Law,
one of the two new chapters added to the previous editions of the
work, Fiore makes the fruitful suggestion that the so-called
American international law is really interstatal law in the par-
ticular fields in which it is applied, as distinguished from inter-
national law. This view has been adopted by von Liszt; and
Alejandro Alvarez, the learned Chilean publicist, has developed
the idea into several different divisions of international law-
continental, interstatal, schools of international law, etc.
Not the least valuable contributions of Fiore's work are his
criticism of existing institutions of positive law and his suggestions
for reform. For example, in the matter of extradition, he is op-
posed to the principle of Italian law and that of other states, often
incorporated in treaties, by which the State refuses to deliver up
its own citizens on a demand for their extradition. Among ques-
tions arising out of war, he condemns severely the assumed right
of belligerents to determine for themselves without restriction the
list of articles they will consider contraband of war.
The present work reached its fourth edition in Italy in 1911.
The revision of that edition for the present English version was
the last scientific work of its distinguished author. Although the
present edition takes almost no account of the legal problems aris-
ing out of the European War, the work of reconstruction which
must follow the crisis through which we are now passing will find
INTRODUCTION
xi
a fruitful source of inspiration in the thoughtful contributions of
Pasquale Fiore.
The literary fruits of his prolific mind are represented in the
appended list of his publications, as drawn up by Professor
Catellani:
WORKS OF PASQUALE FIORE
Elementi di diritto costituzionale e amministrativo. Cremona, 1862.
Nuovo diritto internazionale pubblico. Milano, 1865. Second edition en-
titled Trattato di diritto internazionale pubblico, 3 v., Torino, Unione
tip. editrice, 1879–1884. Third edition, ibid., 1887–89. Fourth edition,
ibid., 1904-06. The first edition was translated into French by Pradier-
Fodéré under the title, Nouveau droit international public, 2 v., Paris,
Durand et Pedone Lauriel, 1869; and the following edition into French
by Ch. Antoine (Traité de droit international public, Paris, Durand et
Pedone Lauriel, 1885-86) and into Spanish, by A. Garcia Moreno (Tra-
tado de derecho internacional publico, Madrid, F. Gongora, 1879–85, in
3 volumes and in 1894–95 in 4 volumes).
Diritto internazionale privato, Firenze, Le Monnier, 1869. Second reprint
edition, 1874. Third edition, entirely revised, Torino, Unione tip. ed.,
1888–1891, in four volumes. Fourth edition, ibid., 1902–1909. The
first edition was translated into French and annotated by Pradier-Fodéré
(Droit international privé, trad. de l'italien, annoté, etc., Paris, Durand et
Pedone Lauriel, 1875); into Spanish, by Garcia Moreno (Derecho inter-
nacional privado, Madrid, F. Gongora, 1878, 2 v.); the third into French
by Ch. Antoine, 4 v., Paris, Pedone Lauriel, 1890–91, and into Spanish
by Garcia Moreno, 4 v., Madrid, Gongora, 1888–91.
Del fallimento secondo il diritto internazionale privato. Pisa, Nistri, 1873.
Effetti internazionali delle sentenze e degli atti in materia civile. Pisa, Nistri,
1875.
Della guirisdizione penale relativamente ai reati commessi all'estero. Pisa,
Nistri, 1875.
Degli 'effetti estraterritoriali delle sentenze penali: della estradizione. Pisa,
Nistri, 1877. Translated into French by Ch. Antoine (Traité de droit
pénal international et de l'extradition, Paris, Pedone Lauriel, 1880, 2 v.)
and into Spanish under the direction of the “Revista general de legis-.
lación y jurisprudencia” (Tratado de derecho penal internacional, Madrid,
1880). Of this work and the one preceding on civil judgments, a Spanish
version was published by Garcia Moreno (Efectos internacionales de las
sentencias de los tribunales, Madrid, Gongora, 1888).
Sul problema internazionale della società giuridica degli stati. Torino,
Stamperia reale, 1878.
Delle aggregazioni legittime secondo il diritto internazionale. Torino, Stam-
peria reale, 1879.
La nave mercantile nei suoi rapporti col diritto internazionale. In “La Legge"
1882, II, col. 317.
Les lois réelles et les lois personnelles d'après les principes du droit international
et la jurisprudence. In “France judiciaire,” 1882, p. 117.
Consideraciones sobre el movimiento juridico internacional moderno. In
“Revista general de legislacion y jurisprudencia.” Madrid, 1882, p. 338.
xü
INTRODUCTION
De la protection des marques de fabrique et de commerce d'après le droit
international positif. In “Journal du droit international privé,” vol. IX,
1882, p. 50.
Agenti diplomatici. In the “Digesto italiano," vol. II, Parte 18.
Adozione. In the “Digesto italiano,” vol. II, Parte 18.
Delle disposizioni generali sulla pubblicazione, applicazione ed interpretazione
delle leggi. In the “Diritto civile italiano secondo la dottrina e la giuris-
prudenza esposto dai proff. ecc.," edited by P. Fiore, Napoli, Marghieri,
vol. I, 1886, vol. II, 1887. Second edition, Napoli, Marghieri, 1908-09.
Del matrimonio degli stranieri nel regno: osservazioni sull'art. 102 cod. civ.
confrontato con l'art. 6 disp. prelim. In “Diritto e giurisprudenza,”
vol. 1, 1886, p. 447.
De la retroactividad de les leyes. In the "Revista general de legislacion y
jurisprudencia” Anno 1886 et seq. (Chapters of the Work, “Delle dis-
posizioni generali, ecc.")
Considerazioni sull'art. 10 disp. gener. del cod. civ. per quello che concerne
le sentenze straniere. In “Diritto e giurisprudenza," vol. 2, 1887, p. 301.
Della prova della legge straniera e della sua retta applicazione. In “Monitore
dei tribunali," 1887, p. 1005.
Degli atti dello stato civile formati in paese straniero. In "Diritto e giuris-
prudenza," vol. IV, 1889, p. 253.
Elementi di diritto internazionale privato. Manuale ad uso degli istituti
superiori. Torino, Unione tip. ed., 1889.
De la possession en droit international privé. In “France judiciaire," 1889.
Del diritto di ritenzione secondo il diritto internazionale privato. In “Mon-
itore dei tribunali,” 1889, p. 301.
Considerazioni intorno al diritto spettante al coniuge divorziato di celebrar
nuove nozze. In “Legge,” 1889, I, col. 534 and 786.
Il diritto internazionale codificato e la sua sanzione giuridica. Torino,
Unione tip. ed., 1889-90. Second edition, ibid., 1898. Third reprint
edition, 1900. Fourth, revised and enlarged edition, Torino, Unione tip.
ed., 1909. Fifth enlarged, ibid., 1915. French translation of the first
edition by A. Chrétien (Le droit international codifié, Paris, Chevalier,
Maresca, 1889), and of the fourth edition by Ch. Antoine (Le droit inter-
national codifié et sa sanction juridique, Paris, Pedone, 1911). Spanish
translation by Garcia Moreno (El derecho internacional codificado,
Madrid, Gongora, 1891). Revised and enlarged edition, translated under
the direction of the “Revista general de legislacion y jurisprudencia
(third ed., Madrid, De Reus, 1911); English translation, from the fifth
Italian edition, by Edwin M. Borchard. (Washington, Carnegie Endow-
ment for International Peace, 1917.)
Sulla controversia del divorzio in Italia. Torino, Unione tip. ed., 1891.
Del diritto dello straniero di adire i tribunali italiani. In “Monitore dei tri-
bunali” 1891, p. 93.
Sentenze straniere ed atti. In “Digesto italiano," vol. XXI, pt. 2.
Dello stato e della condizione giuridica delle persone secondo la legge civile.
Napoli, Marghieri, 1893. In “Diritto civile italiano secondo la dottrina,
etc." Second edition, entitled “Della cittadinanza; del matrimonio."
Napoli, Marghieri, 1909.
Alleanza. In "Digesto italiano,” vol. II, parte 2.
Controversia fra la Grecia e la Rumenia: consultazione pro veritate. Roma,
tip. nazionale, 1894.
INTRODUCTION
xiii
“
Sulla competenza dei tribunali italiani di giudicare e decidere controversie
relative alla successione di uno straniero apertasi all'estero. Napoli,
Pirrotti, 1894.
Il riordinamente degli studi superiori. Napoli, Schipani, 1894.
Della personalità giuridica dei corpi morali e della personalità giuridica dello
Stato all'interno e all'estero. In "Giurispridenza italiana," 1894, IV col.
219. Published also in the "Revue générale de droit international
public," vol. 1, 1894; in the “Zeitschrift für internationales Privat- und
Strafrecht,” vol. IV-V, 1894-95; and in the "Revista general de legislacion
y jurisprudencia,” 1895.
Lo stato e i diritti dell'uomo. In “Diritto pubblico" anno V°, Palermo, 1894.
German translation, Berlin, Hoffman, 1895, and Spanish in “Revista
general de legislacion y jurisprudencia," 1896.
Sugli effetti legali della condanna penale straniera secondo il diritto pubblico e
civile. In “Revista penale," vol. XLI, 1895, p. 305. German translation
in “Zeitschrift für internationales Privat- u. Strafrecht," vol. VI, 1896,
pp. 25, 141, 210.
De l'abordage des navires suivant le droit international. In “Revue du droit
public et de la science politique,” vol. II, Paris, 1895, p. 293.
I condannati per complicità in brigantaggio e nell'associazione a delinquere e
l'azione di risarcimento dei danneggiati dai singoli reati. In "Foro
italiano,” 1896, I, col. 1117.
Settlement of international questions. In vol. VIII, 1897, of the “International
journal of ethics."
La compra-venta en el derecho internacional. In “Revista general de legis-
lacion y jurisprudencia,” 1898.
El contrabando de guerra. Estudio de derecho internacional. Ibid., 1898.
Contrebande de guerre. In “Pandectes françaises," vol. XXI.
Della legge che secondo i principi del diritto internazionale deve regolare le
obbligazioni che nascono senza convenzione. In the third volume of his
"Studi pel 50° anno d'insegnamento di E. Pessina." Napoli, tip. A.
Trani, 1899. Published also in the “Revista general de legislacion y juris-
prudencia," 1900, and in the "Journal du droit international privé," vol.
XXVII, 1900.
Dei conflitti fra le disposizioni legislative di diritto internazionale privato
(questione del rinvio). In “Giurisprudenza italiana," 1900. IV, col.
129 and in “Journal du droit international privé," vol. XXIX, 1902.
Sull'art. 8 delle disposizioni generali del cod. civ. italiano. In "Giurisprudenza
italiana,” 1901, IV, col. 193.
Della capacità dello Stato straniero, della Chiesa e della S. Sede si acquistare
per successione. In “Revista di diritto internazionale e di legislazione
comparata," vol. IV, Napoli, 1901, p. 96.
Se un r. agente diplomatico possa esercitare le funzioni di ufficiale di stato
civile e celebrare il matrimonio fra Italiani nonostante si trovi nello stesso
paese l'ufficio consolare italiano. Roma, casa ed. italiana, 1902. Pub-
lished also in the “Rivista di diritto internazionale e di legislazione com-
parata," vol. IV, p. 492, and in “Foro italiano,” 1902, I, col. 389.
Legge applicabile alla collazione delle donazioni fatte al figlio dal padre stra-
niero divenuto poi cittadino italiano e morto in tale condizione. In “Foro
italiano,” 1902, I, col. 558.
Sul questionario proposto dal socio prof. Gianturco: 1. Da quali caratteristiche
deve desumersi se una persona giuridica sia nazionale o straniera? 2.
xiv
INTRODUCTION
La Chiesa cattolica può riguardarsi come una persona giuridica universale?
Paper read before the r. Accademia di scienze morali e politiche di Napoli
(Atti, vol. XXXIV, p. 350) Napoli, stab. tip. della r. Università, 1902.
De la succession des étrangers en Italie, in the "Journal du droit international
privé," vol. XXX, 1903, p. 42.
Questioni di diritto su casi controversi esaminati e discussi. Torino, Unione
tip. ed., 1904.
1. Sulla legge regolatrice della successione. 2. Sulla competenza dei
tribunali italiani rispetto alla successione di straniero apertasi
all'estero. 3. Sulla capacità di uno Stato straniero di acquistare per
successione (successione Zappa). 4. Sulla nazionalità delle persone
giuridiche. 5. Sulla capacità giuridica della Chiesa. 6. Della legge
che deve regolare la collazione della donazione fatta all'estero.
7. Sugli effetti legali della condenna penale straniera secondo il
diritto pubblico e civile. 8. Sugli effetti della perdita di cittadinanza
del padre rispetto al figlio minore in rapporto all'obbligo del servizio
militare. 9. Della condizione dello straniero secondo le leggi vigenti
nel regno d'Italia. 10. Sulla responsabilità dello Stato per la deten-
zione di un neutrale come prigioniero di guerra. 11. Se la vedova
abbai diritto di portare il cognome del defunto marito. 12. Sul valore
giuridico della disposizione testamentaria fatta da uno straniero con
l'espressa dichiarazione di volersi riferire alle leggi italiano. 13. Della
responsabilità civile nascente dal reato. 14. Della responsabilità
civile dello Stato pel danno sofferto dai privati. 15. Sulla validità
del matrimonio celebrato dall'agente diplomatico italiano in un paese
straniero ove si trovi altresi il console italiano. 16. Sulla competenza
dei tribunali italiani nelle questioni di stato fra stranieri e sugli effetti
di una sentenza straniera di divorzio. 17. Successione di un italiano
apertasi all'estero; tribunale competente a procedere alla divisione:
beni esistenti a Costantinopoli: competenza del tribunale consolare
in forza dell'art. 94 cod. proc. civ. 18. Finalità del giudizio di
delibazione delle sentenze pronunziate da tribunali stranieri: quando
tale giudizio sia richiesto: efficacia della sentenza straniera che abbia
pronunziato il divorzio. 19. Principi di diritto internazionale in caso
di urto di navi. 20. Dell'urto di due navi e delle conseguenze giuri-
diche del naufragio. 21. Della giurisdizione e della competenza nei
loro rapporti col diritto internazionale. 22. Sulla composizione del
consiglio di famiglia. 23. Sul pagamento della dote e sull'obbligo
della collazione. 24. Del legatario universale e dell'esecutore testa-
mentario secondo la legge inglese e della loro responsibilità verso i
creditori del de cuius. 25. Sulla nomina del curatore al minore sotto
patria potestà. 26. Sul contratto di appalto. 27. Sulla proroga della
giurisdizione ai tribunali stranieri e sulla domanda riconvenzionale.
La condizione dello straniero secondo le leggi civile del regno. Paper read
before the royal Accademia delle scienze morali e politiche di Napoli
(Atti, volume XXXIV, p. 457), Napoli, stab. tip. della r. Università, 1903.
Sulla responsabilità civile dello Stato pel danno recato ai privati in forza di
un atto del ministro dell'interno. Paper, read as above (Atti, vol. XXXV,
pag. 365), Napoli, stab. tip. della r. Università, 1905.
Parere giuridico sulla questione della frontiera fra il Peru e l'Equatore deferita
all'arbitrato di S. M. il Re di Spagna. Napoli, A. Trami, 1906.
Del protettorato coloniale e della sfera d'influenza. Paper, read as above (Atti,
INTRODUCTION
vol. XXXVII, pag. 1), Napoli, stab. tip. della r. Università; 1906. Published
also in the “Revue générale de droit international public," vol. XIX, 1907,
p. 149.
Sulla limitazione dell'autorità delle leggi straniere: determinazione delle leggi
d'ordine pubblico. Paper, read as above (Atti, vol. XXXVIII, pag. 47),
Napoli, stab. tip. della r. Università, 1909.
Sulla libertà di disporre con testamento e sulla riserva. Paper, read as above
(Atti, vol. XXXVIII, pag. 447), Napoli, stab. tip. r. Università, 1909.
Osservazioni sulla sentenza arbitrale pronunciata dal Presidente della Re-
publica Argentina nella vertenzo per regolamento di confini fra la Bolivia
e il Perù. In “Rivista di diritto internazionale," vol. IV, 1909, p. 425 and
in the “Revue générale de droit international public," vol. XVII, 1910,
p. 225.
Quando il mutamento di cittadinanza possa reputarsi inefficace perchè fatto
in frode alla legge. Paper, read as above (Atti, vol. XXXIX, p. 187),
Napoli, stab. tip. della r. Università, 1910.
I nuovi orizzonti della scienza del diritto internazionale. Conferenza all'Acca-
demia di legislazione di Madrid il 20 aprile 1909. Napoli, Cimmaruta,
1909. Published also in the "Rivista di diritto internazionale," vol. III,
p. 241, and in the “Revue générale de droit international public," vol.
XVI, 1909, p. 463.
De l'ordre public en droit international privé. Report to the Institut de droit
international. In the “Annuaire de l'Institut de droit international,"
vol. XXIII, 1910, p. 205.
Considerazioni storiche sul diritto di guerra. Paper, read before the r. Acca-
demia di scienze morali e politiche di Napoli (Atti, vol. XLI, p. 99),
Napoli, stab. tip. della r. Università, 1912.
Degli aereonauti nei loro rapporti con le leggi e i costumi di guerra. Paper,
read as above (Atti, vol. XLII, p. 66), Napoli, stab. tip. della r. Uni-
versità, 1913.
Sulla condizione giuridica della Tripolitania e della Cirenaica di fronte al di-
ritto costituzionale e al diritto internazionale. Paper, read as above
(Atti, vol. XLII, p. 119). Napoli, stab. tip. della r. Università, 1913.
Dell'uso delle mine sottomarine nella guerra marittima e della relativa con-
venzione stipulata all'Aja dalla Conferenza del 1907. Paper, read as
above (Atti, vol. XLII, p. 155). Napoli, stab. tip. della r. Università,
1913.
L'istituto di diritto internazionale fondato a Gand e l'istituto americano di
diritto internazionale. Paper, read as above (Atti, vol. XLII, p. 184).
Napoli, stab. tip, della r. Università, 1913.
EDWIN M. BORCHARD.
YALE UNIVERSITY SCHOOL OF LAW,
NEW HAVEN, CONN.
i
TABLE OF CONTENTS
PAGE
V
Translator's Introduction.
Author's Introduction...
1
CHAPTER
1
I. General Survey of the Organization of the International
Society..
II. True Purpose of the Science of International Law. Interna-
national rights of the State, of Man, of Collectivities, and
of the Church and of Uncivilized Peoples.....
III. Formulation and Legal Enforcement of International Law..
IV. The American Institute of International Law Jerome In-
ternoscia's new Code of International Law....
V. Purpose of the present Work--Sources of the Legal Rules
formulated therein-Division of the Subject...
29
53
69
78
BOOK ONE
PERSONS AND ENTITIES SUBJECT TO INTERNATIONAL LAW
TITLE
.
I. Persons and their International Rights.
105
II. Persons under the Authority of International Law and their
Rights..
117
III. Political Constitution of the State with regard to Personal-
ity....
122
IV. Transformations of the Personality of the State.
130
V. Cession of Territory and resulting Annexations
137
VI. Recognition of the State....
145
VII. Identity and Loss of Personality of the State.
151
VIII. Rights of Liberty and Autonomy.
152
IX. Right of Independence. .
170
X. Right of Imperium..
174
XI. 'Right of Jurisdiction.
188
XII. Exterritoriality.
208
XIII. The Legal Equality of States
222
XIV. Representation of States.
231
XV. Consuls..
249
C
1
1
+
xvii
xviii
CONTENTS
TITLE
XVI. Of the Protection of Citizens Abroad..
XVII. International Duties of the State..
XVIII. Duties of Non-intervention...
XIX. Duties of Collective Intervention.
XX. Duty of Mutual Assistance. .
XXI. International Responsibility of the State.
XXII. Duties of Humanity.
XXIII. International Rights and Duties of Man.
XXIV. International Rights and Duties of the Church.
PAGE
259
264
265
268
273
282
289
291
312
BOOK TWO
INTERNATIONAL OBLIGATIONS
I. General and Fundamental Rules. ...
II. Treaties and the Conditions for their Validity.
III. Legal Force and Execution of Treaties.
IV. Abrogation and Annulment of Treaties.
V. Special Treaties.
325
328
336
348
355
BOOK THREE
PROPERTY AND ITS RELATIONS WITH
INTERNATIONAL LAW
I. Of Common Property...
385
II. Public Property in its Relations with International Law... 415
III. Methods of Acquiring Territory.
422
IV. Property of the State and Taxation.
436
V. Property belonging to Private Individuals.
448
BOOK FOUR
THE ENUNCIATION OF INTERNATIONAL LAW
AND ITS ENFORCEMENT
I. The Congress
467
II. The Conference..
478
III. Of the Effective Means of Settling Differences between
States and of Preventing Litigation
484
IV. Of International Arbitration...
494
V. Coercive Means in Time of Peace..
519
1.
CONTENTS
xix
TITLE
PAGE
VI. The last Recourse for Juridical Protection-War...
532
VII. Exercise of the Rights of War...
548
VIII. Hostile Acts in War on Land.
554
IX. Military Operations during War on Land.
564
X. Prisoners of War. The Wounded and Sick..
579
XI. Rights of the Belligerents over Enemy Property.
590
XII. Belligerents in Naval War..
594
XIII. Acts of Hostility in Maritime War...
602
XIV. Rights of a Belligerent with respect to Enemy Persons.. 613
XV. The Capture of Enemy Merchant Ships and Cargo.
621
XVI. Conventions Governing War.
632
XVII. Rights of Belligerents towards Neutrals.
643
XVIII. Neutrality and the Rights and Duties Arising therefrom... 645
.
0
0
.
WAR ON LAND (CONVENTION V.)
CHAPTER
I. Rights and Duties of Neutrals Powers.
658
II. Belligerents Interned and Wounded tended in Neutral
Territory...
659
III. Neutral Persons..
660
IV. Railway Material...
660
XIX. Of Blockade and its Effects with respect to Neutrals. 667
XX. Contraband of War.
673
XXI. Of the Right of Visit..
684
XXII. Of the Right of Capture in Time of Naval War..
689
XXIII. The End of War...
715
.
1
CONCLUSION
Of the second and third Italian Editions.
725
INTERNATIONAL LAW CODIFIED
AND ITS LEGAL SANCTION
CHAPTER I
AUTHOR'S INTRODUCTION
GENERAL SURVEY OF THE ORGANIZATION OF THE
INTERNATIONAL SOCIETY
1. Historical view of the conception of a community of law among the dif-
ferent nations. 2. Present condition of the society of states. 3. Need
of providing it with a more rational form of organization and of creating
a sanction for the law which ought to govern it. 4. Imperfection of the
different projects conceived. 5. Proposal of arbitration as a means of
ending armed peace. 6. Insufficiency of the proposal: Note of the Czar
of August 12/24, 1898. 7. The First Peace Conference of July 29, 1899.
8. The Second Conference assembled on the invitation of the Emperor
of Russia on July 15, 1907. 9. Solution of the problem of providing the
society of nations with a legal organization.
1. The great problem of the present day requiring early solu-
tion is to provide for a more rational organization of international
society. Indeed, the present condition of that society is obviously
imperfect. Notwithstanding their arduous labors, publicists have
failed to agree upon the principles by which international society
should be governed. Governments have, it is true, admitted
certain rules which have been given the authority of "common
law; but those of such rules which have a sound basis constitute
only a minor part of the domain of international law.
The greatest difficulty in this respect consists in inşuring recogni-
tion for established rules. In civil society, social activity, liberty
and actions are not only prescribed and regulated by laws and
codes, but courts and well established legal methods of coercion
exist to prevent and punish the violation of law.
In international society, on the contrary, no superior authority
is invested with the power of preventing this or that state from
abusing its power to violate the right of others, nor is there any
1
2
INTERNATIONAL LAW CODIFIED
legal institution generally recognized to settle the difficulties aris-
ing out of the abuses of liberty. Every state must insure the de-
fense of its rights, and when wronged, has no other means of
redress than recourse to reprisals, and as a last resort, the employ-
ment of armed force.
Now, considering these obvious imperfections of international
law, might we not consider as valueless the intellectual and political
movement of our time aiming at the organization of international
society?
Why is it that, notwithstanding the time elapsed, and long and
serious effort, the problem is still so far from solution? What
has been done up to this time to insure its solution? And is this
solution now near at hand? What may we hope of the present?
What must be done to attain the end desired in the future?
All these questions are extremely complex. To examine the
matter thoroughly, it would be necessary to study the past as well
as the present; to consult both public history and the secret his-
tory of diplomacy; to inquire into the hidden motives of many
events; to set forth the causes which, both in the past and in the
present, have constituted an obstacle to the establishment-if
not among all the states, at least among all the civilized countries
of a real community of law, so as to endow the international so-
ciety with a genuine legal organization.
To study the question thoroughly would require the writing of
several volumes; but it is our intention to confine ourselves to a
rapid survey, presenting only a general and summary idea of the
subject.
In the first place, let us remember that if so little pregress has
been made towards the solution of the problem, it is because the
problem has but recently been presented. Furthermore, a legal
community among the states was an idle dream so long as the true
idea of such a community had not been conceived. To this, there
were many obstacles. First, there was the obstructing tendency
of each nation to live apart and to foster sentiments of distrust
against foreigners, whence originated the erroneous idea of re-
stricting the community to the people belonging to one nation
only. Such was the case in Greece.
1 Pastoret, Histoire de la législation, v. V, 5 and 372-73; Montesquieu,
Esprit des lois, xxi, 7; Herodotus, lib. vii, $ 133.
ORGANIZATION OF THE INTERNATIONAL SOCIETY
3
The community of language, of artistic and scientific genius, of
religion and of customs among the different Greek cities led to the
formation of a bond amongst them, but not between them and
foreigners. The Greeks considered as barbarians the nations which
did not belong to Greece. The philosophers favored these exclu-
sive tendencies. Plato, indeed, considered the human race as
divided into Greeks and barbarians; and Aristotle proclaimed
that all other nations were barbarians predestined by nature to
be subjected to the Greeks.
Another obstacle was the professed superiority of certain races,
a superiority founded on religious beliefs. Such was the case with
the theocratic states, which considered as beyond the pale of
"common" law all the peoples who did not share their beliefs.
The immoderate passion for conquest also constituted an ob-
stacle. Thus, the policy of the Romans in their relations with
other nations was inspired by a boundless desire to subdue them
and to bring to fruition the proud project of making of all countries
colonies of the Empire.
Christ, by proclaiming the unity of mankind and the fraternity
of all peoples, gave the true conception of humanity: “There are
neither Hebrews, nor Greeks, nor slaves, nor free men, since you
are all brothers in Jesus-Christ." ? This conception is broader
and more complete than those advocated by all the philosophies.
Tertulian said in effect that the world should form one single
republic: "I know," said he, “but one republic—the world.” 3
This doctrine would certainly have inaugurated the idea of com-
munity amongst all the peoples of the universe; but a new ob-
stacle contributed to retard that splendid end.
The most serious mistake of the Papacy was to assume that it
was the sole and exclusive repository of truth, and that every one,
voluntarily or by force, had to be brought to the faith.
To Saint Thomas, who asked of Him how to find his way,
1
1
Ortolan, Histoire de la législation romaine (Politique extérieure de Rome);
Laurent, Histoire du droit des gens, v. 3; Osenbrueggen, De jure belli et pacis
Romance
2 Non est Judæus neque Græcus; non est servus nec liber; non est masculus
neque fæmina. Omnes enim vos unum estis in Christo Jesu (Epist. Pauli ad
Galatos, 3-28). See also In Romanos, III, 28–29; Coloss., III, II. Compare
Laurent, Hist., v. 4.
3 Unum omnium rempublicam agnoscimus, mundum. Apolog. 39.
4
INTERNATIONAL LAW CODIFIED
1
Jesus-Christ answered: “I am the truth and the life; no one can
go to the Father except through Me."
As vicar of Christ, the Pope believed that he alone was in posses-
sion of the truth and proclaimed that all those who did not follow
his doctrine were lost. This resulted in intolerance and persecution
to suppress heresy, and in the mistaken idea that it was an act of
charity to combat the adversaries of the doctrine of the Papacy.
So it happened that a new form of dualism was created between
the orthodox Christians and the heretics. Just as the Greeks con-
sidered foreigners as barbarians outside the "common” law, so
the Papacy considered as excluded from that law the peoples who
did not follow its doctrine.
The Catholic Princes were urged by the Pope to resort to arms
for the defense of the faith, and the most cruel wars against heretics
and infidels were undertaken in the name of the religion of Christ,
a religion of peace and love.2
This was the sanguinary period of the religious wars. The hor-
rible war of the Albigenses, the Crusades, the relentless struggles
against the Protestants were directly due to the doctrine of the
Papacy.
A reaction, however, was not long in coming. A struggle began
for the separation of the public law of the State from the public
law of the Church, for the vindication of the essential attribute of
human personality, the right to freedom of conscience, and for the
freedom and equality of the three churches, Catholic, Lutheran
and Calvinist.
The Reformation finally triumphed and the victories it had
gained were recognized in the treaty of Westphalia, which conse-
crated a principle of community among peoples professing different
religious beliefs.3 .
1 Saint Augustine, Epist. 185, De correctione Donatistorum, n° 13; he expresses
himself as follows in Chapter XXIII: An non pertinet ad diligentiam pastoralem,
etiam illas oves, quæ non violenter eruptæ sed blande leniterque seducta, a grege
aberraverint, et ab alienis cooperint possideri inventas ad ovile dominicum, si
resistere voluerint, flagellorum terroribus, vel etiam doloribus revocare? Sic enim
error corrigendus est ovis, ut non in ea corrumpatur signaculum Redemptoris.
Compare Saint Bernard, In cantica, sermo 66, n° 12; Baronius, Ann., anno 385,
v. IV; Barbeyrac, Traité de la morale des Pères; Saint John Chrisostome,
Homelia in Psalm. 43, Alieni filii qui sunt, B.
2 See Robertson, History of America.
3 See on the influence of Richelieu, Monteil, Histoire des Français, v. VII,
ORGANIZATION OF THE INTERNATIONAL SOCIETY
5
Nevertheless, the struggle assumed a new form by reason of the
erroneous conception of the basis of the true community and of
rational principles designed to protect it.
We shall not enter into the details of this question, as it would
be necessary for us to follow the winding road which nations have
had to travel under the pressure of circumstances and of false
notions concerning the foundation of political greatness and eco-
nomic prosperity. We would have to bring to light the secret
history of politics and diplomacy of the different countries and
expose the errors of the system known as “Colbertism," a system
which perverted the mission of the State, the basis of commercial
relations and the bond of relationship between the different coun-
tries of the world.
It was believed that, in order to preserve the independence of
states, it was indispensable to prevent the renewal of the danger
of universal monarchy, and consequently to maintain among the
states a certain balance of power to render impossible the pre-
ponderance of any one of them.
Frederick the Great, assuming the role of interpreter of the
general convictions of his time, wrote in his Anti-Machiavelli
that the peace of Europe was based largely upon the maintenance
of that well conceived equilibrium by which the superior strength
of one monarchy was counterbalanced by the combined power of
several other sovereigns.
How many events have there been, how many conflicts, how
many alliances contracted and broken, how many treaties signed
and violated, whose purpose was to prevent the preponderance of
this or that country, always designed to assure the European
equilibrium and the well known balance of power!
When France, at the time of Henry IV, and in greater degree
during the reign of Louis XIV, became powerful and feared, the
other states allied themselves against her in order to weaken her.
France, which had dictated the conditions of peace in the treaty
of Nimègue of 1678 and in the treaty of Ryswick of 1697, had to
submit in 1713 to the conditions which the allied Powers imposed
on her and sign the treaty of Utrecht, by which she renounced her
1
p. 114; Champion, Mémoires; Mémoires du Cardinal de Retz; Le-Vassor, His-
toire de Louis XIII, v. X; Caussin, Mémoires de Richelieu.
1 Anti-Machiavelli, Part 3, chap. XXVI, p. 58.
6
INTERNATIONAL LAW CODIFIED
projects of aggrandizement. Other wars were also undertaken to
maintain the equilibrium, notably the Polish war, terminated by
the treaty of Vienna of 1738 and the war of the Austrian succes-
sion, terminated by the treaty of Aix-la-Chapelle of 1748. There
was also the Seven Years' War which resulted in the treaty of
Paris of 1763. It would take too long to enumerate all the san-
guinary struggles inspired by the fear of preponderance or he-
gemony.
Since the discovery of America and of the maritime route to
the Indies, the struggle assumed a new form. Every state sought
to acquire commercial supremacy and conceived that, to that
end, it was necessary to acquire for its own advantage the mo-
nopoly of exchanges and exports and to create every form of ob-
stacle to the freedom of commerce of the other states and to the
development of their resources.
Such was the origin of wars undertaken to maintain what was
called the balance of trade. The results of this false system desig-
nated by the name of "Colbertism," have not been less serious
than those of the system of political equilibrium. Pretexts for
making war were constantly sought for the purpose of compelling
the rival powers to sign a treaty of commerce to the advantage
of the conquering state,
The treaties concluded in the 17th and 18th centuries as a con-
sequence of commercial wars demonstrated clearly the confusion
existing as to the liberty of commerce and navigation.
This confusion as to the rights of neutral states during war began
to be dissipated only as a consequence of the leagues of armed
neutrality of 1780 and 1800. Nevertheless, the states which had
recognized the rules applicable to neutral powers disregarded or
modified them arbitrarily, inasmuch as there was no other means
to insure their respect than the force of arms.
Could the idea of a community be conceived, while false notions
prevailed as regards the prosperity of nations, and while it was
every government's aim so to organize its commercial relations
as to import the most gold and the least merchandise in order to
insure the so-called balance of trade?
1
1 Campbell, Lives of the Chancellors, v. V, p. 89. See also the Speech of the
Earl of Shaftesbury, Lord Chancellor, when he endeavored to prove that it
was time to make war on Holland (Parliament, Hist., v. IV, p. 587).
ORGANIZATION OF THE INTERNATIONAL SOCIETY
7
Thus, we reach the period of the French Revolution amidst the
greatest confusion of ideas and false notions as to the particular
interests of each nation, the general interests of states and the
just principles calculated to insure the independence of each
country.
The abnormal conditions under which the wars of the French
Revolution were undertaken served to justify the violence and
abuses which were committed by both parties. The fact is that
the most arbitrary actions were justified under color of reprisals,
and that all the principles of international law were disregarded.
The condition of neutral states grew worse. The rights of neutrals
which had been solemnly proclaimed by various powers were
grossly violated.
At the time of the fall of Bonaparte, Europe presented a new
aspect; while certain states had disappeared, others had sprung
up. The authority of the treaty of Westphalia had been ignored,
the equilibrium had been upset. The question was to provide
for the final organization of Europe, to give a solid foundation to
the vital principle of the community of interests and to establish
properly the just principle of equilibrium.
The experience of the past should have convinced the powerful
Allies that if a certain form of balance was necessary to assure the
orderly coexistence of states and to preserve their independence
and rights, it was indispensable to give other bases to this equilib-
rium. Nevertheless, the Powers, in the excitement of victory,
thought only of insuring the so-called rights of legitimate sover-
eigns and dynasties, taking historical right as the basis of legiti-
macy. It was thought that, in order to restore the equilibrium,
territorial possessions should be restored to the condition prevail-
ing before the French Revolution. In order to make this work
lasting, the Great Powers, acting as dictators, decided reciprocally
to guarantee to one another the possessions which they had claimed
for themselves by virtue of their alleged legitimate rights, by en-
gaging to intervene and to resort to force to repress any attack
whatever upon the balance they had established. Their artificial
labors were summed up in the Final Act signed at Vienna on
June 9, 1815, and completed by the treaty of the Holy Alliance.
And so we arrive at the beginning of the 19th century and find
that the true idea of the international community was still unborn.
8
INTERNATIONAL LAW CODIFIED
It was believed, as a matter of fact, that the supreme interest
of international society lay in the protection of the so-called rights
of legitimate sovereigns and dynasties, and that historical right
was the basis of legitimacy. It was thought that the power of
legitimate monarchs was absolute; that the people had no rights
whatever; that their interest was in a way represented by the in-
terest of the Prince; that legitimate monarchies could annex
territories on the basis of historical right, without taking into
account either the interests of the people or the moral position of
the different countries.
As a natural consequence, the problem of international organiza-
tion had not been presented in its proper light. Indeed, how could
an organization, whose main purpose was the preservation of the
so-called rights of legitimate sovereigns and dynasties, constitute
the principle of a rational institution?
Conflict was to be the consequence of this system, and of the
palpable violation of the liberty and sacrifice of the rights of
peoples.
Relying on their reciprocal agreements under the celebrated
treaty of the Holy Alliance, governments endeavored to suppress
what they called revolutionary ideas; they organized the system
of armed intervention to wage war against liberty and the rights
of nationalities; but all their armies put together were not strong
enough to preserve the political balance established at Vienna
under Metternich's inspiration.
The first great success of the new theory, which proclaimed the
inalienable rights of nationalities as opposed to the pretended
rights of legitimate monarchies was obtained in Greece.
The relentless struggle of the country for the recognition of its
independence against Turkish rule began in 1821 and continued
until 1829. In that year, the Sultan was compelled to sign the
treaty of Adrianople, by the terms of which the Greek provinces
were constituted as an independent state at whose head was placed
Prince Otto of Bavaria with the title of King.
In the same way, in the Belgian provinces which formed a part
of the Kingdom of the Netherlands, the revolution was inspired
by the noble idea of defense of national interests. It resulted in
the separation from Holland of Belgium, which became an inde-
pendent Kingdom. This independence, consecrated by the treaty
ORGANIZATION OF THE INTERNATIONAL SOCIETY
9
of London of November 15, 1831, was recognized by the King of
the Netherlands himself by another treaty of London of April 19,
1839.
Egypt had also revolted to win its independence, under the
leadership of Mehemet-Ali, and fought against Turkey until the
treaty of London of 1840 recognized the hereditary right of
Mehemet-Ali as sovereign of Egypt, under the suzerainty of the
Porte.
Furthermore, divers political movements broke out in 1848 and
1849 which deeply disturbed France, Germany, Hungary and
Italy. Their final result was gradually to reduce to naught the
hare-brained dream of Metternich, namely, the political balance
of 1815, and to effect a radical change in the basis of legitimacy.
For the sovereignty of divine right was substituted the free suf-
frage of the people.
The essentially democratic movement to which the Revolution
of 1848 owes its origin was inspired by an absolute reaction against
the spirit of the Holy Alliance. The greater representation of the
interests of the people, the control exercised by public opinion
upon both the internal and foreign policies of the majority of
states, the extraordinary development of commercial relations and
means of communication between the different countries, every-
thing, so to speak, contributed to do away with unreasonable
prejudices, to develop the sentiment of solidarity of interests and
to bring forward the true principle of a community of interests.
Indeed, it began gradually to be understood that, in order to
assure the development of national prosperity in each country,
ispensable to facilitate the development of international
relations and to guarantee and protect common interests.
2. This fundamental conception was better understood during
the second half of the 19th century. It owed its success to two
important factors. One was the development of international
trade, which became a powerful agent of civilization by establishing
permanent bonds among the different nations. The other factor,
even more important, was the scientific movement, which con-
tributed in the most direct manner to the overthrow of the past
and to reconstruction upon its ruins.
It would be a long task to enumerate, even in a summary manner,
the great builders who helped to tear down the old political struc-
10
INTERNATIONAL LAW CODIFIED
ture and to construct the monument of modern civilization, based
on the great fundamental idea of humanity. We shall mention
only a few of them.
To the Italian Albericus Gentilis, among the publicists, is due
the merit of having emancipated the science of international law
from the authority of theology by giving it a rational basis. He
was the first to teach that the rules of justice ought to be deduced
from natural reason.
He had as his successor, Hugo Grotius, who perfected his work.
These two learned writers gave the first serious impulse to intel-
lectual activity in its work of total destruction of the past and of
reconstruction upon its ruins. Among those who contributed
to that work, special mention must be made of Hobbes, Pufen-
dorf, Leibnitz, and Wolff.4 Then followed the long line of pub-
licists who sought to elucidate and expound the rules for the gov-
ernment of states and the true bases of international relations.
Among those who gave the first impulse to political science, we
may, with justifiable pride, mention our countryman Machiavelli,
one of the first to apply to politics the historical and empirical
method. His great merit lies in having thoroughly studied the
causes upon which depend the establishment, conservation, pros-
perity and decadence of states, and in having left the most com-
plete series of profound observations upon the relations existing
between facts and the causes from which they are derived. He
applied the force of his original genius to separate the domain of the
State from the domain of the Roman Church and to regard the
problem of the art of governing nations as altogether independent
of the authority of theology. This method resulted in releas
governments from the all-powerful authority of the Church.
The detractors of this great Italian thinker have claimed that
he did not take sufficient notice of the laws of justice, that he
considered the art of governing from the point of view of success
rather than of law and that he considered interest as the basis of
politics. But, apart from the defects of his method, there is no
doubt that Machiavelli has rendered the greatest service to
1 De cive, Parisiis, 1646.
2 De jure nature et gentium; De officiis hominis et civis; specimen contro-
versiarum citra jus naturale.
3 Codex juris gentium diplomaticus.
4 Jus naturae methodo scientifica per tractatum.
ORGANIZATION OF THE INTERNATIONAL SOCIETY
11
civilization by dissipating the false notion that the State should
be considered as subject to the Church and that the Pope could
assume the right to command sovereigns of States. The prepon-
derance of the Papacy and the subjection of the State to the pro-
tection of the Church were reduced to naught owing to Machia-
velli's important concept, which was to remove politics from the
Church's authority and to give to governments and politics a new
basis and a proper purpose.
The publicists who came after Machiavelli, adopting his method,
improved the principles which he had laid down and succeeded
in re-establishing the theory of government on its true foundations.
Among these, we shall mention only Locke in England and Mon-
tesquieu in France.
Locke,' in his Two treatises on government has left us the most
liberal theory of constitutional monarchies and of the legitimacy
of powers. His work was perfected and completed by Montes-
quieu, who defended the rights of mankind, and elucidated and
developed the proper principles of the greatness of states. The
science of politics as independent of the authority of the Church
gradually entered the domain of intellectual activity; it would
take too long to mention the authors who have taken part in the
great work of destruction and reconstruction, the purpose of which
was to determine the true principle of political wisdom.
Among the economists who contributed most to demonstrate
the fatal error of the mercantile system, we shall name Hume,
Quesnay and Turgot, who foresaw the great truth that liberty is
the principal condition of commercial prosperity. The true doc-
trine of free trade, which brought about the great revolution
which has taken place in economic life and even in the political
existence of states, subsequently was clothed in its most perfect
scientific form by Adam Smith. His work on the Wealth of Nations
absolutely discredited the false theory of protection.
Among the philosophers, we might mention our countrymen
Pomponaccio, Giordano Bruno and Telesio, who helped to eman-
cipate thought from the authority of theology. But the most
decisive revolution in behalf of the preponderance of reason must
1 His work, Two treatises on government, published in 1690, was later trans-
lated into French under the title of Essai du gouvernement civil.
2 Cf. Buckle, History of Civilization.
12
INTERNATIONAL LAW CODIFIED
certainly be traced to Descartes. He did for philosophy what
Luther had begun to do for religion; what Machiavelli had done
in theory and what Richelieu and Cromwell had done in practice
for politics; and what Galileo had accomplished in the domain of
the physical sciences. Descartes, disregarding tradition and
authority, and relying on the force of intelligence, began the vast
work of destruction of the past. It cannot be said of him, perhaps,
that he was a creative genius, as he destroyed more than he re-
built; but without him we would not have had the liberal and
humanitarian philosophy of the 18th century. After him, we find
Jean-Baptiste Vico, who by sheer reasoning succeeded in con-
ceiving the fruitful idea that mankind is an organism whose ele-
ments are peoples, and in describing the ideal circle within which,
he believed, the world revolves. I
After Descartes and Vico, the work of the philosophers pro-
gressed rapidly and when the end of the 18th century is reached, it
may be observed that, always on the basis of reason, they asserted
the rights of man and prepared the way for the Revolution which
broke out in 1789.
Voltaire,? Mably, Diderot 4 and Rousseau 5 had all defended
the rights of mankind, demanded the emancipation of the serfs and
the suppression of war and indicated the true object of politics
which, as Mably said, was justice. We come now to Condorcet
who in his draft of a constitution proposes to regulate the conduct
of the French Republic towards other nations.
We shall pass over unmentioned' other equally illustrious writers,
who contributed to the destruction of the past and to the develop-
ment of the eminently just principles of the international com-
munity.
It is an undisputed fact that we have gradually come to under-
6
1 Compar. Ferrari, La mente di G. B. Vico.
2 Correspondance de Voltaire et de Catherine II; Dictionnaire Philosophique
(Words Supplice and Torture); Extrait d'un mêmoire pour l'entière abolition
ole la servitude en France; Salire, La Tactique (Odes XVIII, Dialogue XXIV);
Eloge funèbre des officiers morts en 1641.
3 Élude l'histoire; Observations sur l'histoire de la Grèce.
* Fragments politiques.
5 Émile.
6 Projet de constitution française, tit. XIII, Moniteur, 1793, p. 235; Euvres
de Condorcel, v. X, p. 580. See also Lettres d'un citoyen des États-Unis à un
Français, Euvres, v. IX, p. 97.
ORGANIZATION OF THE INTERNATIONAL SOCIETY
13
1 ܙܙ
stand the great conception expressed by Seneca: “All this world
that you see and which contains everything that is divine and
human, is one . . . We are the members of a great body. No-
where is man a stranger . The universe is his true country." 1
But in order to make this conception evident to all men, it was
necessary to bring out the idea foreseen by Hume, Quesnay and
Turgot, that liberty is the principal condition of commercial
prosperity.
It was necessary for everybody to understand that, for the
benefit of all nations, the solidarity of interest of all civilized coun-
tries should come before the egotistical interests of their own
country. It was also necessary that public opinion should come
to realize the necessity and usefulness of community among
civilized nations.
All this has been brought to fruition only in our time, especially
during the last fifty years.
It is now easy to see why the problem of the organization of
international society is still so far from solution. A rational or-
ganization of the international society was not possible so long
as the true concept of the community and of its rational basis was
not fully perceived.
J. B. Vico, in his profound work La scienza nuova, had claimed
that the community of rights can only arise out of the community
of interests, which, as he expressed it, may create in all nations
certain uniform ideas as to the necessity of their association and
the utility of each of them.?
Montesquieu, in his celebrated work on the Spirit of the Laws
had also proclaimed that the great conception of community was
the natural consequence of trade. “The spirit of trade" said he,
“unites nations. All unions are based upon mutual needs. Two
nations trading together are reciprocally dependent upon one
another. If it is the interest of one of them to buy, it is the interest
of the other to sell."
Now if we consider that these views have been understood only
of late, that is, only during the second half of the 19th century,
1 Epist. 95.
2 See Vico's work printed in 1725 under the title Principii di una scienza
nuova intorno alla natura delle Nazioni per li quali si ritrovano altri principi
del Diritti naturale delle genti.
14
INTERNATIONAL LAW CODIFIED
we can see why it is that as yet the international community is far
from practical realization. Indeed, the question has only recently
been clearly formulated.
In our time, however, most people have grasped the meaning
of the true community among states, and the idea of providing the
international society with a better organization thoroughly per-
vades the present intellectual, parliamentary, scientific and popu-
lar movement. That aim will never again be separated from the
intellectual domain of the civilized world. It will impose itself
irresistibly and with increasing force on the conception of statesmen
and the aspirations of peoples. It does not matter whether this idea
be of more or less remote realization. Every new idea progresses
more or less slowly, but progresses surely by reason of its first
impulse, and cannot be permanently interrupted. It develops,
constantly growing in importance, and becomes a power increas-
ingly irresistible. It spreads in the conscience of the masses and
gradually becomes a popular conviction; finally, the idea succeeds
in dominating all facts and in exercising an irresistible influence
over all minds, and becomes, so to speak, the religion of the time
until the day of its ultimate triumph.
So it is with all reforms, and such will be the history of the
international community. The final result of this idea will not
be the work of to-day or to-morrow, but that of time and the last
expression of the progress of civilization; its full realization will
occur only in a more or less remote future.
3. It would be a serious mistake to misconceive the fact that
the problem of the legal organization of the international society
is one of extreme complexity and most difficult solution.
For this solution, it is necessary in the first place to determine
the "common” law applicable to the community of civilized na-
tions, then to insure the effective sanction of that law, and finally
to provide for efficient measures and means to settle conflicts and
difficulties which may arise among states.
As to the recognition of a "common” law, it cannot be said that
much has been done to establish it; but we may say that a be-
ginning has been made along that line. The treaty of Paris of
1856 marked in that respect an important step in advance. The
Great Powers, instead of confining their mission to regulating the
consequences of war, as was customary in the past, established
ORGANIZATION OF THE INTERNATIONAL SOCIETY
15
measure.
uniform rules respecting the rights of neutrals and belligerents
in maritime war.
Subsequently, several treaties were concluded designed to assure
the needs of commerce, the protection of property and industry,
the freedom of river navigation, the abolition of the slave trade, the
development of civilization and trade in Africa, and the uniform
regulation of other common interests. It would take too long to
enumerate these treaties. Finally, it was proposed to establish a
common” law intended to civilize war, and to limit so far as
possible its evils and dangers, and delegates of the nations even
met for that purpose at Brussels in 1874.
As has already been observed, the idea of recognizing that it is
the collective interest of all states to regulate certain matters
pertaining to their general needs has already been realized in some
.
So far the most serious difficulty, one considered as almost in-
superable, lies in the establishment of appropriate institutions to
insure the legal sanction and protection of the common law, and
of legal means for settling conflicts and compelling everyone to
respect established rules. The result of the lack of a superior au-
thority and of appropriate legal institutions is that states have thus
far found no other efficient means of protecting their rights than
the employment of their military forces and those of their allies.
Thus it happens that states having to rely only on their military
power, have all sought to be better armed than their rivals. This
unfortunate tendency has resulted in a system of excessive arma-
ments. The means of attack being constantly perfected, makes it
likewise necessary for the states constantly to improve their means
of defense so as to be able to oppose a more effective resistance to
an increasingly efficient attack.
As a consequence of these armaments whose cost is constantly
growing, the greater part of the revenues of practically every state
is at the present time absorbed by military expenditures, and the
requirements of every other branch of the public service are sub-
ordinate to those of the Ministry of War. Furthermore, as the
ordinary resources are not always sufficient to meet the needs,
governments have recourse to extraordinary taxes and to loans.
The figures of Europe's debt and interest payments are stupendous.
As a consequence of this state of affairs, there is already in all
16
INTERNATIONAL LAW CODIFIED
1
countries a movement of protest against the scourge of armed
peace, which has transformed the civilized world into a huge gun
factory. The complaints against the evils due to that fatal exalta-
tion of militarism, have become in the last few years more frequent
and more general.
Publicists, statesmen, associations of manufacturers, and the
workers throughout the world are all agreed upon the necessity of
establishing upon sound bases the organization of the international
society and of finding means to end this unfortunate state of
affairs in which the principal guaranty of a nation's rights is its
army and, in last resort, war.
1 The associations for eliminating the evils of armed peace and the dangers
of war originated in the United States, extending later on to Europe. Accord-
ing to the Bureau international de la Pair, there are 94 of these, 54 of which
are in America and 40 in Europe.
The first societies of the friends of peace originated in the United States,
one of the first to initiate the movement being Rev. Mr. Worcester, who
founded in Boston a religious paper, in which he stigmatized the evils of war.
Then came George Channing, who addressed to the Congress of the United
States a memorial in which he said: “We are convinced that a government
sincerely disposed to undertake the great and sublime mission of pacifying
the world would not lack means for succeeding in this task. Thanks to the
persistent and wise efforts of such a government, more moderate principles
would prevail in the settlement of international disputes, differences between
nations could be referred to an impartial arbitrator and peoples could reach
an agreement for the purpose of reducing their military organizations, so
great and so costly."
From America, the movement spread to Europe, especially in England,
where the society of the Friends of Peace founded a paper called The Herald
of Peace. (For more details, see the work of Descamps and the pamphlet of
Catellani, La propaganda della pace.) Nor should we fail to recall that in 1873
there was created in London the Association for the Reform and Codification
of the Law of Nations, which changed its name in 1894 to “International Law
Association"; that in 1873 also, at the suggestion of the Americans Lieber
and Miles and of the Genevese Moynier, the Institute of International Law
was founded by Rolin-Jacquemyns, Bluntschli, Mancini and other jurists.
This institution, whose object was the promotion of international law, would
certainly have produced excellent results had it always been maintained within
the domain which had been assigned to it at the time of its foundation,
The propaganda in favor of international arbitration as a means of elim-
inating war has made rapid progress and the movement has received great
unity of action as the result of international congresses, in which the associa-
tions of the different countries have met. The Americans are still foremost.
The jurists of that country held a congress at Lisbon in 1888 with the Spanish
and Portuguese jurists to discuss the need of instituting a court of arbitration.
One of the most important meetings was the Pan-American Congress, held
in the United States on the initiative of Secretary of State Blaine.
ORGANIZATION OF THE INTERNATIONAL SOCIETY
17
4. Various plans have been suggested with a view to securing a
more rational organization of the international society. This is
not the place to enumerate all these propositions. Some issue from
scientists and scientific associations which have studied the solu-
tion of this complicated problem; others sum up the general senti-
ment expressed by the associations in public meetings.
Bluntschli conceived the idea of organizing mankind as a
great state, of which all the individual states were to be members.
In his view, no universal empire or monarchy was necessary
to attain that end. The confederation, or union of states, was
sufficient. This ideal conception, however, does not appear to
us more practicable of realization than Plato's Republic or
Thomas More's Utopia. We readily admit that a certain com-
munity of interests may develop among men of similar origin,
traditions and language, living under the same social and moral
conditions, and that these men may form a state for the defense
of those interests; but it would seem extremely difficult to expect
the same result from the combined nations of the universe.
While not questioning the unity of mankind, it must be remem-
bered that civilization describes a parabola and that the diverse
moral conditions prevailing in the various nations will always
determine certain differences in the intellectual development and
civilization of the peoples of the various portions of the universe.
To give to the society of states the form of a Confederation,
with its distinctive legislature, judiciary and Executive above and
beyond the governments of the different states, is the basis,
seemingly attractive, of the numerous schemes conceived with that
end in view, beginning with those of Sully, Kant, Rousseau and
Bentham, and ending with those of our contemporaries, among
whom may be found Malardies, Lorimer and others. The scheme
generally proposed was to constitute a permanent Congress;
giving to the assembled confederated States voting representation
proportional to their actual degree of power and importance and
placing at the disposal of the central power an armed body suffi-
cient to insure the respect of its decisions.
In our opinion, however, these schemes which at first sight are
attractive would not eliminate the evils they are designed to
remove, but would rather perpetuate them. Indeed, they are
calculated to bring about the preponderance of the great powers
18
INTERNATIONAL LAW CODIFIED
to the detriment of the independence of the smaller states. The
same thing occurs in cases of bankruptcy, in which, inasmuch as
each creditor has a vote proportional to the importance of his
claim, it often suffices for the debtor to make an arrangement
with his principal creditor to the disadvantage of the smaller
creditors.
5. The manifestations against armed peace having, within the
last few years, become more general, the measure which has been
considered as expressing popular sentiment as to the best way to
render armaments unnecessary and to eliminate war is arbitration
as a judicial method of peacefully settling all international dif-
ferences.
This measure has been on the program of legal and scientific
associations, and of philanthropic, political, and labor associations
of all nations. Peace societies have been particularly active in
their propaganda in favor of arbitration; several of these societies
have been founded for the special purpose of bringing about its
adoption as the best means of ending the scourge of armed peace.
All these societies agree that the legal organization of interna-
tional society could be effected if all the states would bind them-
selves to submit all their differences to arbitration.
They believe that general disarmament and the disappearance
of war might thus be brought about.
Arbitration has become popular especially since the settlement
by the Geneva Tribunal of Arbitration of the important dispute
between Great Britain and the United States. From the view-
point of the gravity of the matter in issue, it is the only very im-
portant case submitted to arbitration. Other questions settled
by arbitration are notable rather on account of their number than
on account of the point involved. There have been some seventy
1
1 The society which has given to the movement a truly international char-
acter is the Inter-Parliamentary Union for establishing arbitration as the
system of procedure for the solution of international controversies and for the
prevention of war.
The Union's first conference was held in Paris, in June, 1889, under the
presidency of Jules Simon; the second conference was held at London, under
the presidency of Lord Herschell; the third at Rome in 1891, under the presi-
dency of Biancheri; the fourth at Berne in 1892, presided over by NIr. Droz;
the fifth, at The Hague, in 1894, presided over by Mr. Rohasen; the sixth, at
Brussels, in 1895, presided over by Senator Descamps, and the seventh at
Budapesth in 1906.
ORGANIZATION OF THE INTERNATIONAL SOCIETY
19
cases of arbitration since 1815, the United States participating in
thirty-five and Great Britain in twenty-one. But there has been
no other case of arbitration so important as that of the Alabama
Claims, which, had it not been amicably settled, would inevitably
have led to war between Great Britain and the United States.
In that case, the particular factor preventing a recourse to arms
was the realization of the British Government that a peaceful
settlement of the difficulty was most desirable, as it knew that if
war were declared, the United States would blockade the northern
and southern ports of England and that, the cotton trade being
at a standstill, 500,000 workers employed in cotton factories would
have to be taken care of. The United States was likewise con-
vinced of the advantage of a peaceful settlement. The two Govern-
ments were consequently disposed to adopt any measure which
would satisfy the national pride of the United States without
wounding that of Great Britain. That is the secret of the Geneva
arbitration.
We do not wish in any way to lessen the importance of that
arbitration. It is highly to the credit of the statesmen in power
that they realized the true interests of their respective countries,
and had the energy and sagacity necessary for carrying to a
successful end negotiations which covered a period of six years.
Great difficulties had to be overcome in order to conclude the
treaty of Washington upon which the compromis was based.
It required remarkable political wisdom to conduct the long and
heated discussions, amid the excitations of the press and the
recriminations of a parliamentary opposition which threatened
to force the two countries into war.
It is also greatly to the credit of the jurists who composed the
arbitral tribunal that they succeeded in rendering an award ac-
ceptable to both parties; and it is with a justifiable national pride
that we mention the fact that an Italian, Count Sclopis, was the
President of the tribunal.
But to infer from this decision that the solution of the grave
problem has been found; to believe, in the present state of the
case, that by making arbitration the common form of international
justice the elimination of war and of disarmament have been
achieved is, in our opinion, a great illusion.
6. While recognizing the great importance of arbitration, we
20
INTERNATIONAL LAW CODIFIED
can not admit that the mere fact that a great number of states
(as, for example, whose which were represented at the Hague
Conference) have agreed to sign a general treaty of arbitration,
could suffice to abolish the predominance of military force and
provide a definitive legal organization of international society.
First of all, it must be borne in mind that a general obligation
to submit to arbitration is subjected, even by those who favor it,
to the reservation that it must not involve either the dignity or
the honor of the nation.
The difficulties existing between Great Britain and the United
States were easily settled, owing to the willingness of both Govern-
ments, which were equally desirous of reaching a peaceful solution.
Would it have been so, had one or the other considered war ad-
vantageous to its policies? If so, what would have prevented it
from claiming that its national honor was violated?
Furthermore, let us consider that the necessity of armaments
and the desire to be stronger than the other states are not designed
to bring about the use of arms for the settlement of all kinds of
difficulties, such as those concerning boundary limits, fishing privi-
leges in certain seas, or international pecuniary claims for indem-
nities for private injuries sustained. Every Great Power seeks to
predominate in strength in order to give weight to its preponder-
ance in international questions, such as those relating to the Near-
East and the Mediterranean. Now, whenever it is admitted that
disagreements on such questions, for example, those of colonial
expansion, or of influence in China or Africa, cannot be referred to
arbitration, it must be recognized that it is quite natural that none
of the Great Powers, obliged in such matters to rely solely upon
their own strength and that of their allies, can afford to dispense
with the endeavor to be the best armed.
Should the noble efforts of the scientists and of scientific so-
cieties in favor of arbitration, the propaganda pursued by all the
peace societies of Europe and America, be considered as of no
avail?
Should the unremitting perseverance and great wisdom of states-
men, the measures introduced in parliaments to induce Govern-
ments to engage to submit to arbitration all international disputes,
be considered as aspirations without result and practical effect?
Certainly not.
ORGANIZATION OF THE INTERNATIONAL SOCIETY
21
This trend of public opinion-a tendency which has acquired
of late a better unity of direction, owing to a concentration of all
the forces favoring arbitration must be deemed without doubt
the most remarkable achievement of civilization.
The votes expressed in favor of arbitration by congresses of
scientists, parliaments, and popular assemblies, are the most
solemn expression of the general sentiment, which is a protest
against armed peace; they are the luminous expression of the
thought in the mind of all, that is, to give a new direction to
international politics and to make governments recognize that,
instead of continuing to rely on force, their supreme duty lies in
submission to justice.
And who will deny that humanitarian propaganda has not met
already with great practical success? It has already acquired a
footing in parliaments; but thereafter, just as success always re-
wards perseverance, so public sentiment against the scourge of
armed peace has entered the highest spheres.
The sovereign of a powerful Empire finally had the courage
solemnly to declare to other governments that armed peace was
ruinous to all; that it was absolutely necessary to find a remedy to
this necessity of continual armaments and that it was the duty of
all governments to devise means for preventing the calamity which
was threatening the whole world. For that purpose, the Czar, by
his note of August 12/24, 1898, invited all the Governments of
the world to agree on the best means of preventing the inevitable
disastrous consequences of excessive armaments.
7. The Czar's note greatly impressed statesmen and Govern-
ments, and awakened great hopes and encouragement. One of
the difficulties was to determine the programme of the Conference.
Nevertheless, the Conference assembled at The Hague on May 18,
1899, with the object of adopting measures best calculated to en-
sure to nations the blessings of peace and a proper limitation of
excessive armaments.
The Conference did not succeed in fulfilling the great hopes of
its achievements which had been entertained, nor did it succeed
in developing the programme of work for which it had been called.
1 See our article written at the time of the publication of the note of Nicolas
II to Count Mouraview, in the Revue générale de droit international public,
y. V, 1898, p. 732.
22
INTERNATIONAL LAW CODIFIED
Nevertheless, it laid down the primary bases for the pacific settle-
ment of international disputes and for the substitution of law and
justice for force.
The Powers which were represented there were Austria-Hungary,
Belgium, Bulgaria, China, Denmark, France, Germany, Japan,
Great Britain, Greece, Italy, Luxemburg, Mexico, Montene-
gro, The Netherlands, Persia, Portugal, Rumania, Russia, Servia,
Siam, Spain, the United States, Sweden and Norway, Switzerland,
and Turkey.
The plenipotentiaries of these states succeeded in establishing
rules for peacefully settling international disputes, admitting that,
in order to prevent, so far as possible, recourse to force for their
settlement, it was necessary to resort to all measures calculated to
attain that end-good offices, mediation, examination of the facts
by international Commissions of Inquiry, and arbitration. Those
matters constituted the object of the first Convention, in which
were formulated rules concerning recourse to good offices and to
mediation; the institution of an international Commission of In-
quiry, whose office would be to facilitate the solution of differences
of an international nature not involving honor or vital interests,
but arising from a difference of view on questions of fact, and
lastly, international arbitration, having for its object the settle-
ment of disputes between states arising out of questions of a legal
nature and particularly questions of interpretation and application
of international conventions. The plenipotentiaries proposed, be-
sides, to regulate war on land between two or more Powers rep-
resented at the Conference, declaring at the same time that the
provisions would cease to be compulsory if, in a war between the
contracting Powers, a non-contracting Power should join one of
them.
This Convention was signed on July 29, 1899, by all the states
except Switzerland and China and, according to the provisions
of article 3, was to enter into force from the day of its ratification
by the individual Powers, with the understanding that the rati-
fications should be deposited at The Hague and that a copy thereof
should be notified through diplomatic channels to each of the con-
tracting Powers. On this basis were laid the foundations of the
laws and customs of war on land, regulations being drawn up for
determining the rights and duties of the belligerent parties and
ORGANIZATION OF THE INTERNATIONAL SOCIETY
23
their obligations in regard to prisoners of war, the sick and the
wounded, and for defining the exercise of belligerent rights with
a view to restricting the indiscriminate use of methods and instru-
ments intended to injure the enemy.
With a view to diminishing the evils incidental to war, the
plenipotentiaries agreed to make applicable to maritime war the
principles of the Geneva Convention of August 22, 1864, which
regulated the condition of hospital-ships, of the sick and the
wounded, and of those engaged in caring for them.
The plenipotentiaries finally signed three declarations concern-
ing:
I. A prohibition against launching projectiles and explosives
from balloons, or similar contrivances. (This declaration was not
signed by Great Britain.)
II. A prohibition against the use of projectiles the object of
which is the diffusion of asphyxiating or deleterious gases. This
declaration was compulsory for the states which subscribed it,
among which Great Britain and the United States of America were
not included.
III. The prohibition against the use of dum-dum bullets which
expand and flatten easily in the human body, such as bullets with
a hard envelope which does not entirely cover the core, or is pierced
with incisions. This declaration was not signed by Great Britain,
Portugal, and the United States of America.
These declarations were not binding upon the states which signed
them unless ratified and the ratifications were deposited at The
Hague.
The Conference, furthermore, expressed various solemn wishes
(veux) in regard to matters which should constitute the programme
of a later conference; Revision of the Geneva Convention relating
to the sick and wounded in time of war; rights and duties of neu-
trals; adoption of an agreement regarding the type and caliber of
naval guns; conventional limitation of armed forces on land and
sea; immunity of private property in maritime war; and the
regulation of bombardment.
Thus, the first Conference did not succeed in developing the pro-
gramme outlined in the Czar's note, but established the principle
that the matters on which an agreement had not been reached
should constitute the subject-matter of future Conferences.
24
INTERNATIONAL LAW CODIFIED
8. In a protocol signed at The Hague on June 14, 1907, baving
in view the fact that states not admitted to the first Conference
might have adhered to the Convention for the pacific settlement
of international disputes signed on July 29, 1899, the adherence
of several States was recorded, namely: Argentina, Bolivia, Brazil,
Chili, Colombia, Cuba, Ecuador, Guatemala, Haiti, Nicaragua,
Panama, Paraguay, Peru, Santo Domingo, Salvador, Venezuela.
The problem which then urgently required solution consisted
in giving a better legal organization to international society; and
this undoubtedly could not be considered as solved. That is the
reason why a second Conference was proposed on the initiative
of Mr. Roosevelt, President of the United States of America. He
proposed its meeting by his circular note of October 21, 1904,
to discuss and settle various questions in conformity with the
solemn wishes expressed by the first Conference, which had post-
poned their solution. It met at The Hague on the invitation of
the Emperor of Russia July 15, 1907, and ended its labors with
the Final Act signed on the 18th of October following. 44 States
were represented, namely: Argentina, Austria-Hungary, Belgium,
Bolivia, Brazil, Bulgaria, Chile, China, Colombia, Denmark,
Ecuador, France, Germany, Japan, Great Britain, Greece, Guate-
mala, Haiti, Italy, Luxemburg, Mexico, Montenegro, Nicaragua,
Norway, Panama, Paraguay, Netherlands, Persia, Peru, Portugal,
Rumania, Russia, Salvador, Santo Domingo, Servia, Siam, Spain,
the United States, Switzerland, Sweden, Turkey, Uruguay, and
Venezuela.
The conventions and declarations were as follows:
I. Convention pour le règlement pacifique des conflits interna-
tionaux (Convention for the pacific settlement of international dis-
putes)
II. Convention concernant la limitation de l'emploi de la force
pour le recouvrement de dettes contractuelles (convention respect-
ing the limitation of the employment of force for the recovery of
contract debts).
III. Convention relative à l'ouverture des hostilités (Conven-
tion relative to the opening of hostilities).
IV. Convention concernant les lois et coutumes de la guerre
sur terre (Convention respecting the laws and customs of war on
land).
ORGANIZATION OF THE INTERNATIONAL SOCIETY
25
V. Convention concernant les droits et les devoirs des Puissances
et des personnes neutres en cas de guerre sur terre (Convention
respecting the rights and duties of neutral Powers and persons in
case of war on land).
VI. Convention relative au régime des navires de commerce
ennemis, au début des hostilités (Convention relative to the status
of enemy merchant ships at the outbreak of hostilities).
VII. Convention relative à la transformation des navires de
commerce en bâtiments de guerre (Convention relative to the
conversion of merchant ships into war ships).
VIII. Convention relative à la pose de mines sous-marines auto-
matiques de contact (Convention relative to the laying of auto-
matic submarine contact mines).
IX. Convention concernant le bombardement par des forces
navales en temps de guerre (Convention respecting bombardment
by naval forces in time of war).
X. Convention pour l'adaptation à la guerre maritime des
principes de la Convention de Genève (Convention for the adapta-
tion to naval war of the principles of the Geneva Convention).
XI. Convention relative à certaines restrictions à l'exercice du
droit de capture dans la guerre maritime (Convention relative to
certain restrictions with regard to the exercise of the right of
capture in naval war).
XII. Convention relative à l'établissement d'une Cour inter-
nationale des prises (Convention relative to the creation of an
international prize court).
XIII. Convention concernant les droits et les devoirs des Puis-
sances neutres en cas de guerre maritime (Convention concerning
the rights and duties of neutral Powers in naval war).
XIV. Déclaration relative à l'interdiction de lancer des pro-
jectiles et des explosifs du haut de ballons (Declaration prohibiting
the discharge of projectiles and explosives from balloons)
The above conventions and the declaration each constituted
separate acts and all bore the date of the Final Act, namely,
October 18, 1907, the Plenipotentiaries having the right to sign
them until the end of June, 1908. On that day, by virtue of the
provisions sanctioned in the Final Act, the term expired which had
been granted for the signature of the separate acts, except conven-
tion XII, which, it was provided (Art. 53), was to be signed on the
>
20
INTERNATIONAL LAW CODIFIED
day of the deposit of ratifications. The said acts were signed on
the day fixed by all of the contracting states, every state making
certain reservations concerning various articles, as had been
brought out in the general discussion.
The United States did not sign the sixth, seventh and thirteenth
conventions, and made reservations as to the first.
The Conference, actuated by the spirit of mutual agreement
and concession characterizing its deliberations, made the following
declaration in the Final Act, affirming the principles which they
regarded as unanimously admitted:
“It is unanimous:
1. In admitting the principle of compulsory arbitration.
2. In declaring that certain disputes, in particular those relat-
ing to the interpretation and application of the provisions of inter-
national agreements, may be submitted to compulsory arbitration
without restriction.
“3. Finally, it is unanimous in proclaiming that although it has
not yet been found feasible to conclude a convention in this sense,
nevertheless the divergences of opinion which have come to light
have not exceeded the bounds of judicial controversy, and that, by
working together here during the past four months, the assembled
Powers have not only learned to understand one another and to
draw closer together, but have succeeded in the course of this long
collaboration in evolving a very lofty conception of the common
welfare of humanity."
The Conference further unanimously adopted the following
resolution: "The Second Peace Conference confirms the resolution
adopted by the Conference of 1899 in regard to the limitation of
military expenditure; and inasmuch as military expenditure has
considerably increased in almost every country since that time,
the Conference declares that it is eminently desirable that the
governments should resume the serious examination of this ques-
tion."
It also gave expression to the following opinions:
1. The Conference calls the attention of the signatory Powers
to the advisability of adopting the annexed draft convention for
the creation of a Judicial Arbitration Court, and of bringing it
into force as soon as an agreement has been reached respecting
the selection of the judges and the constitution of the court.
ORGANIZATION OF THE INTERNATIONAL SOCIETY
27
2. The Conference expresses the opinion that, in case of war,
the responsible authorities, civil as well as military, should make
it their special duty to ensure and safeguard the maintenance of
pacific relations, more especially of the commercial and industrial
relations between the inhabitants of the belligerent states and
neutral countries.
3. The Conference expresses the opinion that the Powers should
regulate, by special treaties, the position, as regards military bur-
dens, of foreigners residing within their territories.
4. The Conference expresses the opinion that the preparation
of regulations relative to the laws and customs of naval war
should figure in the program of the next Conference, and that
in any case the Powers may apply, as far as possible, to war at
sea the principles of the convention relative to the laws and customs
of war on land.
5. Finally, the Conference recommends to the Powers the
assembly of a Third Peace Conference, which might be held within
a period corresponding to that which has elapsed since the pre-
ceding Conference, at a date to be fixed by common agreement
between the Powers, and it calls their attention to the necessity of
preparing the programme of this Third Conference a sufficient
time in advance to ensure its deliberations being conducted with
the necessary authority and expedition.
In order to attain this object the Conference considers that it
would be very desirable that, some two years before the probable
date of the meeting, a preparatory Committee should be charged
by the Governments with the task of collecting the various pro-
posals to be submitted to the Conference, of ascertaining what
subjects are ripe for embodiment in an international regulation,
and of preparing a program which the Governments should
decide upon in sufficient time to enable it to be carefully examined
by the countries interested. This Committee should further be
intrusted with the task of proposing a system of organization and
procedure for the Conference itself.
Without entering into the details of the rules established in
common accord between the states through the conventions in-
dicated, which we shall cite hereafter, it is an indisputable fact
that the work of the Conference, taken as a whole, constitutes
the most important effort of international action toward facilitat-
28
INTERNATIONAL LAW CODIFIED
ing the solution of many questions and especially toward develop-
ing the noble idea of the preponderance of justice and right in the
international society.
The periodicity of the Peace Conferences, voted unanimously
by the many states represented, is the surest proof of the common
aspiration to find means of limiting excessive armaments. This,
on the whole, affords ground for the belief that in a more or less
remote future the preponderance of right and justice will prevail
in the international society.
9. The solution of the problem cannot be, however, the ex-
clusive work of diplomacy; it will be, in the last analysis, the work
of the combined intellectual forces of all civilized countries. The
combination of forces and the propaganda of those favoring a
peaceful organization of the international society have had very
important results by way of positing the problem and causing
diplomacy to recognize the necessity of reaching a solution. Now,
the intellectual forces of all countries are needed to indicate to
diplomacy what this solution must be. If science unites all its
forces for the purpose of solving the problem of the organization
of the society of nations, can it be unsuccessful?
Considering that science's attempt to reclaim the rights of
human individuality resulted in the memorable proclamation of
the rights of man of 1789; that science has succeeded in framing
legal rules for the rational organization of the family, city and
state, and in drawing up the rules of political society now recog-
nized as definite principles in the constitutions of all civilized
countries, -who will believe that modern science is powerless to
bring about a sound organization of the society of civilized coun-
tries?
Can it be conceded that the present anarchy will last indef-
initely? Can it be supposed that science may not be able to fulfill
its mission? Decidedly not, for fortune does not favor those who,
discouraged by the present, lose their faith in the future.
The main difficulty lies in taking the right direction and in
concentrating all intellectual forces upon a thorough solution of
the problem.
To determine which direction to follow must always be the
ultimate aim of science.
2
CHAPTER II
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL
LAW. INTERNATIONAL RIGHTS OF THE STATE,
OF MAN, OF COLLECTIVITIES-OF THE CHURCH
AND OF UNCIVILIZED PEOPLES
10. How the science of international law must contribute its share toward a
complete solution of the problem of the juridical organization of interna-
tional society. 11. Method pursued up to the present. 12. Necessity of
ascertaining the rights of all the members of that society. 13. Objects
of international law. 14. The states, man, people, nationalities, Church
and collectivities. 15. International rights appertaining to them. 16.
Collectivity as an object of international law. 17. Equilibrium between
the Church and the State. 18. General lines of the system best adapted
to give to international society its true organization.
10. In order that science may efficiently co-operate in solving
the problem of the legal organization of international society, it
is indispensable that we endeavor to fix the rules governing all the
relations operating between the members of such society. For that
purpose, it is necessary in the first place to determine among which
persons and individuals these relations may exist; it is then neces-
sary to specify the rights and duties which may flow from such
relations, to fix the rules governing them and to protect the rights
of and insure the observance of duties by all.
No association of free individuals may be considered well or-
ganized without a law establishing a rule of equilibrium and
certain rules of proportion both between what every one may do
and what every one should refrain from doing. This rule of
equilibrium and proportion may insure the rational organization
of a community, and should, in addition, legal means for protecting
the rights of all be provided, it will be possible to acquire the re-
spect due to the person of every one and the development of
freedom in his relations with his fellow man.
It is useless to plan for international society a suitable form of
organization without determining the rights and property of each
member, and what every one may or may not do. So long as this
29
30
INTERNATIONAL LAW CODIFIED
law of proportion is not found, it will be impossible to give to
international society a legal organization.
There are two great republics. One has no limits to its exten-
sion, including all those who are united by the bonds of civilization.
The other is composed of men united by civil, social and political
interests, which take the form of a state. The principles for the
legal organization of either republic do not materially differ.
To give to either form of republic a regular and rational organiza-
tion would require the adoption of a system of juridical equilibrium,
that is to say, the line of demarcation between what every one
may do and may not do. Now, it seems to me that in order to
work out the legal organization of the great republic, of the Magna
civitas, the same method is required as that followed to attain the
legal organization of political society.
The latter was the final outcome of the enlightened idea of politi-
cal freedom and legal equality advocated by the philosophers and
publicists of the last century, which has inspired the intellectual
movement and popular aspirations up to the present, and in which
people have come to claim the rights of man in opposition to
sovereignty. It was the work of the Revolution. History calls
it the French Revolution, while as a matter of fact it was the
revolution of the human mind; it was the outcome of the co-
operation of the intellectual forces of all countries which, at the
end of the last century, caused the proclamation of the rights of
man in opposition to sovereignty.
The declaration of the rights of man has made us understand
certain rules of proportion and has led us gradually to determine
the legal equilibrium of the political society. I do not say that
everything has been accomplished in a perfect and thorough
manner; in my opinion, however, the declaration of the rights of
all those belonging to the political community and the recognition
of the rights of man over the sovereign make it possible to fix the
basis of the legal equilibrium. This equilibrium is founded upon
the principle that within the state the sovereign is not omnipotent,
and that, in opposition to the absolute power of the King, stand
the intangible rights of man, the consequence of which has been
to oppose the rights of man as a resisting force to the king's rights,
which at one time were absolute. So one may determine the rules
of proportion between what a king can do and what he has no
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 31
right to do. To-day the work goes on; the effort is to perfect the
principle already secured, and to better determine the rights of
the individual, of society and of the collectivity as opposed to the
rights of sovereignty. The work is always aiming to perfect itself,
to develop, and to better determine the rights of every one, with a
view better to fix and determine the fields of freedom, and to
establish more surely a proper balance.
In international society, disorder, confusion, and lack of juridical
organization are caused by the fact that thus far the idea has been,
first, to recognize the rights of dynasties and then, the rights of
states, as if international society was only composed of the states
and governments represented by those rights; as if outside of the
state no one could be entitled to have and enjoy international
rights. Hence the result that the state considers itself as omnipo-
tent, that political considerations outweigh law and that the per-
sonal and temporary interests of rulers prevail over the general
interests and requirements of those who belong to the international
society. Finally, owing to the lack of secure legal rules, arbitrari-
ness has sometimes had a greater power and has relied on military
force, which has come effectively to predominate over the world.
Should one wish to remedy this abnormal situation and the con-
fusion resulting therefrom, it will become necessary to resist the
omnipotent force of politics and arbitrariness. And to that end,
it would be indispensable, in my opinion, to specify and vindicate
the international rights appertaining to all those constituting the
international society, and to enlarge the enlightened concept of
juridical freedom and equality, acknowledging the fact that the
latter are not territorial rights, but properly international rights.
The question should be considered in its broad aspect, not from
the restricted point of view of each single country and each single
political community. It is necessary to concede more freedom and
legal equality and to extend the benefit thereof to all the countries
of the world. Freedom and legal equality should be recognized as
international rights appertaining to that great republic constituted
by mankind which I call Magna civitas.
We should determine and vindicate, in my opinion, the inter-
national rights of man, of the people, of nationality, of the Church
and of other forms of society. We should also vindicate the in-
ternational rights of uncivilized nations.
32
INTERNATIONAL LAW CODIFIED
11. It seems to us that publicists have gone astray when de-
scribing international society as the result of the union of states
such as they are and such as historical events have made them,
and when teaching that the sole purpose of the science of inter-
national law was the examination of the rules designed to proclaim,
determine and protect the rights of constituent states. According
to them, it should be assumed that international society is com-
posed of states only, that no relations can exist and be developed
except between states, and that, consequently, the law by which
such society is to be governed can only concern states.
As a matter of fact, in the great society of societies, which we
name Magna civitas, we first found man with his personality and
the rights which are his as a man, independently of his status as
a citizen of a state.
Could it by any chance be conceived that man, as regards
mankind and the law which must govern mankind, might lose his
individuality, in the same manner as a drop of water falls into the
sea? Certainly not. Man is entitled to rights of his own in his
intercourse with other men and within the sphere of private te-
lations; he has his own rights in his relations with the state, that
is to say, within the domain of public and political relations; he
enjoys, furthermore, rights of his own in his relations with all his
fellow-beings and all the states of the world.
A consequence of his personality is to endow him with civil
and political, as well as international rights, for it is man's princi-
pal and essentially personal right, in relation with all the states of
the world, freely to belong to any state. He may, consequently
choose his nationality and renounce the one already his in order
to acquire a new one.
He enjoys, besides, the right to personal inviolability and liberty;
he has the right to acquire property anywhere and to require the
respect thereof; he is entitled to freedom of conscience, to the free
exercise of his activities, to the free exercise of international trade.
Are those rights in any respect rights belonging to man as the
citizen of a particular state, or are they international rights ap-
pertaining to man as such? In our opinion they unquestionably
belong to the human personality, independently of the bond unit-
ing every one, as a citizen, to some given country.
12. Now, is it not for science, whose aim should be to eliminate
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 33
absolutism and the preponderance of force, to attempt to determine
the rights of the people in relation to states and governments, and
to fix the rules governing them, as well as the measures of legal
protection designed to guarantee and safeguard such rights?
Another form of union existing in international society is the
union arising out of the natural affinities of individuals, whose
community of views and tendency to associate with one another
are due to a similarity of race, language, traditions, aspirations,
and to an ensemble of ethnographical, geographical and moral
considerations. This is what constitutes nationality. The senti-
ment of moral unity animating men of the same race, speaking
the same language, having for centuries experienced the same
events, shared the same joys and the same sorrows, having always
had the same aspirations--that is the origin of nationality, upon
which peculiar and special rights are based.
An association equally important is that derived from the free-
dom of conscience. A more or less considerable number of individ-
uals, of the same faith, and observing the same religious law, form
a de facto society and freely acknowledge the authority of a chief:
this association is the Church.
It cannot be denied that the Church is a natural society, the
result of freedom, as all those professing the same faith may freely
form a spiritual association and submit to the authority of a su-
preme chief who, without using any coercive means exercises over
them his moral authority.
Consequently churches also are part of international society,
and among them the first place belongs to the Roman Catholic
Church, cemented by an existence of twenty centuries and pre-
served by the most compact and powerful hierarchy in the
world.
The Catholic Church carries on relations with all the states of
the world and from these relations are derived certain rights and
duties affecting not only the public law of each country, but also,
to some degree, international society as well. Should not the
science of international law, which purposes to establish rules of
proportion between all the individuals and collectivities constitut-
ing mankind, take up the problem of solving the situation of the
Church towards States? This is a thing that international law
must do in order that none of the elements which are to constitute
34
INTERNATIONAL LAW CODIFIED
the object of the search for the rules of proportion or proper
balance may be overlooked.
There are other forms of association, less important than
churches, that must be taken into account: human associations,
which, although not enjoying a perfect political organization, form
a union under the authority of a chief, as represented by tribes
or other analogous aggregations.
Can barbarous tribes, whatever their degree of culture, be de-
nied the capacity of being considered subject to international law?
Supposing even that they lack all political organization and
that they live their own life upon the territory they occupy, could
the application of international law be refused to them in so far
as it must protect the rights of the human personality?
One may say of those tribes that, while acknowledging the
authority of a chief, they cannot be placed on the same footing of
equality as the other members of the Magna civitas. One could
not, however, refuse to apply international law to them as a means
of regulating de facto relations which may be established between
them and civilized states. One could not admit of a legal equality
between such tribes and states, even by limiting it to the enjoy-
ment of the rights which properly are theirs, because the necessary
basis for such equality is a certain uniformity in regard to funda-
mental notions of law, which are indispensable for the legal com-
munity. It must be owned, however, that neither a barbarous
nation nor an uncivilized tribe may be left outside the law of
humanity.
There are also associations created for an international purpose
which, after being recognized as such by states, may exercise their
activity in the international world. In the enjoyment of the
international rights that are theirs, they must likewise be governed
by international law.1
i Certain forms of societies-(the result of freedom of association for a
common interest)--are formed within a state. These societies are endowed
with a legal personality, when the sovereignty of such state, by reason of
their public interest, bas given them such personality and the power to ex-
ercise rights appropriate to that end. These associations, however, may not as
of right exercise their functions in foreign countries, as the sovereignty of each
state may recognize juridical persons and grant them the capacity for certain
acts only within the limits of the territory over which it commands. General
interest may require certain associations to extend their sphere of action be-
yond their boundaries, but this may not take place as of right, as the previous
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 35
13. Now in order properly to fulfill its task, science must not
be content to determine the rules governing the relations between
established states; it must also fix the rules governing all the rela-
tions of fact and law existing between all the individuals and en-
tities belonging to the international society.
Whether these relations exist between states, or individuals and
states, or collectivities of individuals and states, and when, by
reason of their nature, purpose or development, they can not be
considered merely as relations of territorial interest, science must
take cognizance of them.
That is why we assign to the science of international law a
much more lofty and wider object than had at first been ascribed
to it. We would even change its name if it were possible, so as
to better express its purpose. International law means law between
nations, law between states. The expression Droit des gens (Law
of nations) is indeed a better one; but, in order more completely
to indicate the object of the science, it would be still better to
employ the expression Law of mankind, which well describes the
great republic composed of all beings considered either individ-
ually or as groups of individuals.
In our opinion, the object of international law should be to
investigate and determine the international rights and reciprocal
duties which must belong to every member of such society, and
to fix the legal rules governing such rights and duties and the legal
measures designed to protect their fulfillment. For that purpose
it is necessary to determine first of all which are the persons and
subjects enjoying such rights and which may lay claim to them.
14. I believe that one should consider as a person of interna-
tional society every being and institution having individuality by
virtue of their own right, and capable of exercising their functions
in all parts of the world. Individuality constitutes always the
essential characteristic of every person. But, in order to possess
authorization of the foreign sovereign, given as a recognition or otherwise,
must always be considered indispensable.
All that we have said about the international rights of collectivities applies
to collectivities existing jure suo, that is to say, those whose existence is a
natural fact, or the result of natural factors; that is, those which must be
considered as existing independently of territorial law, such, for example, as
a nation, or people, and the association resulting from the unity of religious
belief.
36
INTERNATIONAL LAW CODIFIED
personality in international society, it is necessary that a being be
possessed of individuality in his own right, and not by virtue of
some form of concession on the part of the territorial sovereign.
When individuality is the result of an act of the territorial
sovereign, it may be sufficient to cause the legal entity or institu-
tion to be considered as a person within the limits of the territory
of the granting sovereign.
Consequently, we recognize the existence in international so-
ciety of three persons: the state, man, and the Roman Catholic
Church. As to the state, its personality can not be questioned, as
every one admits that, as soon as constituted, it is jure suo a person
of the Magna civitas.
The point as to whether man should be considered as a person
of the international society is one that may be questioned. There
is no doubt that man is a person in his relations with civil and
political society. But that he should be considered as a person
of international society, may, at first, be disputed.
For my part, I certainly do not contend that man is a person of
international society in the same manner as the state, and that he
may acquire and exercise the rights belonging to the state, or to
contract and execute international obligations in the same manner
as a government. I claim only that man, by the fact that he exists
as such, exists with the personality which is his jure suo; that he
exists with his freedom and capacity to exercise his activity not
only as a citizen, in his relations with the government of the state
to which he belongs, but also with respect to all the world's gov-
ernments, and that he may claim from all the respect of his per-
sonality and the rights which are his, not as a citizen, but as a
man. The personality jure suo is possessed in the first place by
man considered in the civil and political society arising out of the
state of which he is a citizen; but it must be conceded, furthermore,
that man is to be considered jure suo as a person, with rights pro-
tecting his personality, in the eyes of all the states of the world.
The difficulty is greater when it comes to considering the Church
as a person of the Magna civitas. In order to avoid any misunder-
standing, I wish it to be understood that my argument refers to all
churches. But it is important to consider that they have not all
in fact acquired the position of a true international institution. At
the present time, the Roman Catholic Church is the only true
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 37
international institution. It possesses, as other churches, not only
its own individuality jure suo, but besides, an international or-
ganization of its own; it exercises its own rights and its activity
extends over all the world. Other churches may also undoubtedly
acquire some day the position of an international institution; and
in such case, all my remarks may apply to any church actually
enjoying such situation. But, as I have said, the position of a true
international institution belongs at this time perforce to the
Roman Catholic Church. And for that reason, acknowledging
it to be in fact an international institution and considering that
its personality (that is, its individuality as such) is its own as of
right, jure suo, I maintain that it must be considered as an inter-
national entity."
1 The notion of international personality, such as I understand it, should
not be confused with the notion of legal personality. In my opinion in-
ternational personality belongs to any individual and institution enjoying
de jure an individuality of its own and possessing jure suo the capacity to
develop its activity in the field of international society in conformity with the
rules governing such society. It does not follow that any individual or in-
stitution may claim international personality and enjoyment of the rights
which (taking always into account, of course, their nature and purpose) are
theirs in the international society, and which constitute their international
rights.
Legal personality, on the contrary, may belong to any collectivity not
enjoying an individuality of its own de jure, but to which the sovereign power
has granted such individuality, while at the same time conferring upon it the
enjoyment of certain rights.
Considering this as a thing substantially different from the other, it will
readily be seen why, while granting to the Church an international personal-
ity, I do not go so far as to admit that it may claim to be considered de jure
as an international legal entity.
Nor have I ever thought that the Church may be deemed jure suo an inter-
national legal entity, which would imply the acknowledgment that it may
de jure claim the capacity to exercise property rights. As a matter of fact
such capacity does not belong to the Church as an international institution,
because, considering its nature and purpose, the enjoyment of property rights
is not indispensable to it. And consequently, no Church, not even the
Catholic Church, may be deemed a legal entity unless such condition be
granted by the sovereign power of the state conformably to territorial law.
(See the first edition of the present work translated by Chrétien, rules 31, 441,
442, 456, 464 and 466, and Diritto internazionale pubblico, 3rd ed., Torino,
1887: Dei diritti internazionale della Chiesa, pp. 485 et seq.)
The State alone is de jure an international entity, and an international legal
entity possessing legal capacity and the enjoyment of property rights belong-
ing to it as a State, such enjoyment being indispensable in order that the
State may subsist as such and pursue the object for which it was created.
(See my opinion (consulto) on the differences between Greece and Rumania
38
INTERNATIONAL LAW CODIFIED
Two institutions among mankind, the State and the Church, are
of a nature fundamentally different.
The State is a political institution owing its existence to political
freedom and possessing its own power to govern all the relations
which arise and develop within the field of national, civil and
social interests.
The Church is an ethical institution, arising out of freedom of
conscience and existing by reason of a religious sentiment. It
is organized under the authority of a chief whose sole power is to
maintain the principles of faith and to proclaim the dogma for
those who wish freely and spontaneously to accede to it. He ex-
ercises his functions over the soul and within the field of conscience.
For my part, accepting things in this world as God, history,
and freedom have made them, I dare not disregard historical
facts. I find, in the international society, the existence of man
endowed with a personality which is his jure suo. I establish the
existence of the state, which, once constituted by virtue of the
political freedom of associates, possesses a personality of its own
ipso jure ipsoque facto. I establish the existence of the Church
organized under the form of an international institution. These
are three personalities, each one of which is of a different nature and
legal condition.
Is the capacity of being a subject of international law the ex-
clusive privilege of the State? Are there not, in international
society, other entities entitled to international rights?
Admitting that no one may claim the international rights of
the State and that therefore no one may enjoy, as a subject of
national law, the same capacity as the State, how may one
absolutely deny to other individualities, which effectively belong
to international society, the right to claim their own international
rights and to consider themselves as entitled to enjoy them?
Publicists, by wrongly teaching that only the State is a person,
and that, consequently, man has no right to an international
personality, have encouraged the unfortunate error that the rights
of man, the rights of human personality, exist only so far as inter-
relative to the Zappa inheritance, and my pamphlet Della personalità giuridica
dei Corpi morali e della Personalità giuridica dello Stato all interno ed all
estero. Torino, Unione Tipografico-Editrice, 1895; and Tratado de derecho
internacional publico, 2a edicion, 1894, vol. I, chapter VII, De la personalidad
civil del Estado.)
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 39
national public law is concerned, and that a foreigner, in so far
as his private and civil rights are concerned, may be deemed
outside of “common” law.
This same false theory, namely, that only the State is an inter-
national person and that it alone is entitled to enjoy international
rights, has also had as a result the raising of the "Roman question."
The partisans of the Pope's rights, in view of this theory that
the State alone should have an international personality, held
that the temporal power of the Papacy was indispensable to
secure the respect of its rights. They alleged that the Roman
Catholic Church exercises certain international rights and main-
tains certain international relations; its head exercises the right
of legation, and may conclude concordats. If it is granted that
the State alone may be an international person, it appears nat-
ural for the Pope's partisans to maintain that, for the regular
and safe exercise of the Pope's functions as head of the Church,
and in order to secure complete guaranties, the Church must
have a form of political organization as a state, and the Pope,
as head of the Church, must be given territorial possessions and
temporal power.
Thus, by an error, have publicists encouraged the Pope's claims,
their theory going so far as almost to justify the remarkable
sophism of the Papacy and of its partisans as to the Pope's alleged
necessity for temporal power and political sovereignty.
Should one wish to establish the true political equilibrium
all facts must be viewed in their true light; every one must be
granted what is his, but denied also what is not his. This explains
my theory. The precept of the Romans, unicuique suum, has been
my inspiration.
15. What are the international rights to which every one is
entitled? And how, in accordance with the declaration of the
rights that every one expects, shall the political equilibrium be
effected?
This is not the time to set forth at length the international
rights of the State, man, the Church, corporations, associations,
nomads and barbarians, as this question will later constitute the
object of our study. It will suffice for the present to insist on the
fundamental point, namely, that in order to effect a legal equilib-
rium it is absolutely necessary that the legal limitations upon the
40
INTERNATIONAL LAW CODIFIED
activity of every one be determined, and that, for this purpose, it
is important to ascertain and recognize the international rights
of all persons and bodies, of the State, man, associations or collec-
tivities, and of civilized and uncivilized peoples. After these shall
have been determined, it will be necessary also to recognize that
the liberty which any state may possess in its relations with other
states and collectivities, cannot exist, except in the power to exer-
cise their proper rights and activity, without invading the legal
sphere of the rights of others.
The international rights of the State, it is generally agreed, are
rights of autonomy and independence, of sovereignty and jurisdic-
tion, of equality, of eminent domain and of representation. These
rights, it is also said, should be considered as absolute. But as it is
not admitted that international rights likewise belong to man and
to collectivities and that such rights ought to be considered in-
tangible, the result is that arbitrariness prevails in international
society. The right of autonomy of the State, in fact, justifies
everything, and in order that they may support any claim they
may assert, states are endeavoring unceasingly to increase their
military strength.
To oppose a legal power to the omnipotent power of arbitrariness
would call for a recognition of the international rights of man and
of entities or collectivities.
Man's rights comprise the rights of freedom and of personal
inviolability, the right of choosing his citizenship, renouncing
the one he has acquired and of choosing a new one, the right to own
property, of liberty of conscience, of free activity and interna-
tional trade, and the right of emigration. These are the interna-
tional rights of the human being. 1
1 In addition to the international rights pertaining to every one as a man,
we recognize likewise in everyone the international rights to which he is en-
titled as a citizen.
And, as a matter of fact, their status as citizens of a state constitutes
the basis of civil and of political rights, and of certain international rights.
Civil rights find their true foundation in the laws of every country, which
determine, regulate and protect certain rights, the enjoyment of which is
exclusively reserved to the citizens of the state. Political rights find their
true foundation in the constitution of each individual state. The international
rights of man as a citizen rest upon the treaties concluded between the state
of which he is a citizen and other states.
Any person who belongs to a state as a citizen has a right, in the first place,
to claim the protection of the sovereign and government of his country against
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 41
Whatever his race and degree of culture, whether he lives in polit-
ical association or leads a nomadic existence, man never loses the
characteristics and attributes of human nature and consequently
never loses the rights which, always and everywhere, must pertain
to the human personality. Therefore, it should be recognized that
he may claim such rights all over the world, demand respect for
them and enjoy them in every country, on the sole condition of
recognizing the authority of territorial laws and complying with
the provisions thereof.
Collectivities are merely aggregations of persons united by a
common bond and a common interest. Naturally they enjoy their
own international rights, the same as do the individuals constitut-
ing them.
One cannot deny to nations their own international rights,
the more important of which are the liberty to establish and
modify their own political constitution, the right to adopt the
government which they think may best secure the rights of the
political association and the right to expect that, once established,
the government will be recognized by other states as a legiti-
mate one as soon as it is effectively in possession of rights of
sovereignty.
Nationalities, likewise, have their own rights, the principal of
which is that of not being constrained to remain in this or that
political association, but of being able in all freedom to unite in
accordance with their natural aspirations and affinities.
I have spoken previously of the Churches and other collectivi-
ties. Let us see now what may be inferred from the facts already
set forth.
That every state as well as the government which represents it
should possess both autonomy and independence, must surely be
admitted. But what is to be the nature of such autonomy and in-
any state or government attempting arbitrarily to violate the rights which,
according to international law, are his.
But in addition to this any individual who is a citizen of a state may, in
the pursuit of his business and activity abroad, claim and obtain the enjoy-
ment of any private right, faculty, advantage, and privilege granted to the
respective citizens by treaties concluded between state and state. Upon
commercial treaties, consular conventions and those relating to the protection
of literary, artistic and industrial property and many others, are founded
special rights which may be enjoyed only by those who, as citizens, belong to
the states which have concluded such treaties.
42
INTERNATIONAL LAW CODIFIED
dependence? Can one speak of the autonomy and independence
of arbitrary power? Certainly not.
The just limit of a power lies in due regard for the international
rights of other members of the international society.
A sovereign may properly claim only the liberty and independ-
ence compatible with the requirements of international society.
For that reason, he must so exercise his powers as not to violate
the rights and legitimate interests of other governments, nor in-
fringe the international rights of man or of the community, or
the general requirements of international society.
Autonomy cannot, to be sure, be absolute, to the exclusive
advantage of the State. In the international society, there are
other individualities also invested with international rights. Now,
it is quite evident that the preservation of the principle of equilib-
rium and the rule of just proportion requires that the autonomy
of the State be consistent with a due regard for the rights of
others.
From the principles above posited it follows that a state can
neither prevent foreigners from entering its territory, nor subject
them to vexatious measures. Neither can it expel them without
sufficient reason. It cannot forbid its citizens to renounce their
citizenship in order to acquire another. It cannot subordinate
the right of renouncing original citizenship to the necessity of
previous authorization.
There is no doubt that a sovereign right over its territory inheres
in every state; but from this it must not be inferred that the state,
as a consequence of its right of sovereignty, may deny to a foreigner
the privilege of acquiring and devising property, subject to the
regulations prescribed by territorial law.
The State cannot, by reason of its autonomy, deny to a for-
eigner the power to acquire, within the territory of the State, any
movable or immovable property on the same conditions as citi-
zens, or deny them the enjoyment of the particular rights com-
prised within the general right of property. Such a measure
could not be legitimate unless, on serious grounds of public policy
or social welfare, the ownership of certain specific things should be
exclusively reserved to citizens.
He who agrees with my theory relative to the international
rights of man will consider in quite a different light the problem
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 43
whose solution is the object of private international law and is
concerned with the authority of foreign laws.
As a matter of principle, it must first be admitted that the enjoy-
ment of civil rights by foreigners cannot be deemed a gracious
concession depending upon the arbitrary power of any state;
it is properly to be considered as the legal recognition of the in-
ternational rights of man.
We must acknowledge, furthermore, that any person has the
right not only to select the state to which he wishes to swear alle-
giance, but that he is also entitled to claim that the law of the state
to which he belongs, upon which his legal condition and civil rights
depend, as well as his personal and family status and the private
rights derived therefrom, be recognized in foreign countries, and
that it be app'ed to such relations, provided that the application
of such law be not detrimental to the territorial public law nor
to the laws governing public policy and protecting the social
order.
Thus, we cannot support the opinion expressed by Feelix,
namely, that "in admitting the application of foreign laws, legis-
lators, public authorities, courts and writers have been guided
not by an obligation, whose observance may be claimed, but
solely by considerations of reciprocal utility and convenience,
er comitate et reciprocam utilitatem.” 1
Instead of admitting that no state possesses an absolute and un-
limited discretionary power to grant or deny recognition of the
enjoyment of the civil rights of foreigners or to subordinate them
to the condition of reciprocity, as it pleases, one should consider
the denial to a foreigner of the right to demand the application
of his personal statute as an actual violation of the international
rights of man.
Therefore, one must also admit that no state can, as a conse-
quence of its autonomy, justify legal reprisals founded upon the
rule of reciprocity.
In short, remembering that neither the territorial or extra-
territorial authority of a law is exclusively dependent on auton-
omy, but properly requires to be determined, taking into account
the international rights of man, the nature of each separate rela-
Preliminary title of his Trattato di Diritto internazionale privato, chap. III,
no. II.
1
44
INTERNATIONAL LAW CODIFIED
1
tion and social as well as international interests, the problem of
private international law may be successfully placed on its true
legal basis. Thus, it has in fact come to recognize the rational
domain of every law, based upon the legislative competence of
every state, and to submit every relation to the law governing it,
according to the nature of the relation itself and to the principles
of legislative competence, within the just limitations which, in
the application of foreign laws, the political and social interests
asserting themselves in every state impose.
16. Let us briefly point out a few of the consequences which,
from the point of view of legal equilibrium, arise out of the recog-
nition of the international rights of collectivities.
Because a nation has a right to adopt and amend its own po-
litical constitution, it necessarily follows that states and govern-
ments have no right to interfere in the internal affairs of a foreign
country, in order to prevent or hinder the free exercise of the in-
ternational rights belonging to the people. Any form of either
armed or moral intervention should likewise be considered as
absolutely unlawful and arbitrary. Neither can the intervention
designed to prevent a people from modifying the political constitu-
tion of the state and the form of government be justified upon the
ground that the protection of the general interest required such
intervention.
The collective intervention of the Great Powers, in order to
maintain a state of things by force, thus violating the right which,
according to international law, belongs to every people, cannot be
legitimated by an agreement among the Powers. They may not,
by reason of their autonomy, agree to settle in their own way the
internal affairs of other states.
A “European concert” or an “American concert" is not enough
to justify everything. The European concert should be held legit-
imate, no doubt, when its object is the legal protection of in-
ternational law; but it should not be so considered when it is
formed for the purpose of maintaining conditions in opposition
to the international rights appertaining to peoples and nationalities.
See my work: Diritto internazionale privato, 3rd ed., chap. V, Principi
fondamentali, Torino, Unione Tipografico-Editrice, 1888, translated into
French by Charles Antoine (Paris, Pedone-Lauriel, 1890) and into Spanish
by Garcia Moreno (Madrid, Gongora, 1888).
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 45
Within the last few years,-especially in connection with Cretan
affairs,--the European concert has been formed for the purpose
of securing by concerted action the recognition of a state of affairs
no longer in harmony with the principles which, according to our
system, should govern international society. The Great Powers,
unable to agree in regulating the new conditions which would re-
sult from the liberation of the Christian provinces, agreed upon the
necessity of preserving the integrity of the Ottoman Empire,
subordinating to that end the just aspirations of the Cretans.
In like manner, the European concert ought to have compelled
the other states, including Greece, not to interfere with the right
of the Cretan people to adopt the political constitution most
conformable to their national aspirations.
From the principles set forth, it follows, furthermore, that as a
nation has the right to provide its own political constitution and
if necessary, to defend, by force, the right to modify or change it,
one must agree that the acts of a revolutionary party intended to
overthrow a constituted government cannot always be subject to
the criminal laws applying to rebels, and that, when armed struggle
assumes the character of a true civil war, rebels have the right to
be considered as belligerents.
Another result of the recognition of the international rights
of nationalities is that the efforts of peoples of the same nation-
ality bent upon forming a national state, cannot be suppressed, but
should, on the contrary, be respected as a consequence of a legit-
imate right.
Nothing can justify the recourse to coercive measures designed
to preserve a state of affairs opposed to national aspirations, based
upon pretended dynastic rights and treaties. Neither historic
rights based on treaties nor prescription can effect the destruction
or curtailment of the right which all nationalities possess of con-
stituting themselves into states.
Having admitted international rights in favor of uncivilized
countries, it is now easy to lay down the principles intended to
dispel the erroneous conception that such countries may be con-
sidered as outside the common” law. Uncivilized tribes are not
indeed in the same condition as civilized peoples; the "common ”
law cannot be applied in the same way, whatever the degree of cul-
ture may be. Nevertheless, one can hardly imagine that any form
46
INTERNATIONAL LAW CODIFIED
of aggregation of individuals could be beyond the pale of interna-
tional law.
Certainly, as a matter of principle, colonization and colonial
expansion cannot be questioned; one should even admit as desira-
ble a certain proportion between the population and the territory,
and that civilized countries, in order to find new outlets for their
ever increasing activity, need to extend their present posses-
sions and to occupy those parts of the earth which are not of
any use to uncivilized peoples. One should, however, consider
that colonization is legitimate only when exercised in a manner
not in disregard of the international rights of uncivilized
countries.
Colonization in relation to autonomy and to the international
rights appertaining to barbarous tribes is a complex question
which cannot be taken up here. I claim only that no result of a
rational and equitable nature can be obtained unless the interna-
tional rights of uncivilized and barbarous countries are recognized
and respected like those of civilized countries.
17. And now, let us quickly endeavor to find the true balance
between Church and State.
I have shown how the Church was entitled to certain inter-
national rights and how its individuality and personality as re-
gards the faculty of enjoying and exercising its own rights were
to be recognized.
Now, in order properly to determine the international position
of the Church and to fix precisely the principle of equilibrium in
the relations between the Church and the State, it is important
to bear in mind the fact that the Church is an institution of
spiritual nature, and may claim its individuality and existence
jure suo, only, of course, within the determined scope of its nature
and purposes.
The Church may certainly demand the respect of its interna-
tional rights as do the various states of the world. But what are
these rights? They are:
a. The liberty of formation and organization in every part of
the world:
b. The liberty of the head of the Church to communicate with
followers in order to maintain the unity of dogma and faith, with-
out resorting to coercive measures:
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 47
c. The liberty of government within the field of action pos-
sessed by the Church, as an institution of a spiritual nature.
This is the extent of the Church's autonomy and independence,
the extent of its individuality and personality existing jure suo,
to which are opposed the State's rights and the rights of other
collectivities.
To sum up the question, the whole matter resolves itself into
the right of liberty of conscience, an intangible right of the human
person, which takes the form of a collective right whenever the
followers of the same faith, scattered all over the world, form a
religious association and recognize a chief to whose supreme au-
thority they submit.
In order not to interfere with the liberty of conscience which,
under the circumstances, becomes a collective right, it must also
be conceded that the head recognized by such free association
should have as much freedom to govern it as possible within the
field legally determined by the very nature of the institution,
which constitutes a true spiritual community. Then, to determine
the nature of such freedom and to establish properly the respective
extent of the Church's and State's autonomy, it is necessary to
study very closely the nature of both institutions and of their
relations with one another.
In my opinion, the relations between the State and the Church
cannot be properly understood unless we recognize the principle
that the sovereignty appertaining to the head of the State differs
materially—by nature, characteristics, powers and purposes--from
that of the head of the Church.
The correct principle of the balance between the State and the
Church will appear easy of determination once we admit the faculty
of both to exercise their rights, powers and functions within their
own legal sphere. I mean that their relations must be estab-
lished upon the basis of a complete separation of their powers.
And so, it must be admitted that any Church, so far as its con-
stitution, organization and spiritual power are concerned, should
be independent of the jurisdiction of any territorial sovereign, and
that no state may hinder the liberty of the Church so far as its
organization and the exercise of any spiritual authority over its
followers are concerned.
The head of the Church, having the right freely to decide upon
48
INTERNATIONAL LAW CODIFIED
all matters relating to the high administration of the communion,
ought also to have the right to communicate with all the clergy
and persons exercising spiritual functions; to convoke councils
and synods; to exercise his ecclesiastical legislative power under
canonical form, excluding for that reason any coercive action and
any assistance on the part of public authority against persons un-
willing spontaneously to accede to canonical rules and preferring
to abandon their religious confession.
One must, furthermore, recognize that the persons who take part
in the high administration of the Church and exercise spiritual
functions in congregations, synods, and councils, cannot be re-
sponsible to the head of the State, whenever, of course, the exer-
cise of their functions aims to regulate and develop the spiritual
interests of the Church.
Any interference of the government of the State in acts relating
to the high administration of the Church, provided such acts be
limited to the field of spiritual interests, must be considered unlaw-
ful and contrary to the principles of international law.
Such in brief are the rights appertaining to the Church before
the governments of the whole world and which, for that reason, I
have called the international rights of the Church.
And now let us see what are the rights of the State, by reason
of its nature as a political institution compared with the Church.
The sovereign power of every state has a perfect right to protect
the interests of the political community and to subject to its laws
the persons and the acts of everyone, whatever the social interests
involved.
It is consequently the duty of a sovereign to control the acts of
any form of association, of any form of collectivity, and therefore
of any Church, not excluding the Roman Catholic Church, when-
ever such acts extend beyond the religious and spiritual domain to
enter the field of public internal law.
The first result of this is that the Roman Catholic Church, in
so far as it is considered by us an international institution, cannot
establish diplomatic relations with a state without the previous
consent of that state itself.
In no case can it claim the capacity to acquire and transfer
property, for it is within the power of each state to grant or refuse
legal personality to any association existing within it, and so it
.
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW 49
must be with respect to the Church. So far as the acts of the
government are concerned, one cannot deny that the sovereign's
interference is always justifiable when the head of the Church,
making an unjust use of his spiritual power, attempts, through the
doctrine he promulgates, to incite and instigate the believers to
disregard the laws of the State or to perform external acts contrary
to the rights and interests of the State.
Admitting, nevertheless, that the inviolability of the Church's
head must always be respected, although he unduly exercises his
power under a canonical form, one must also recognize the right
of the sovereign of any state to protect the interests of the political
community against any attack from ecclesiastical power. The
sovereign, therefore, confronted by encyclical letters, bills, acts
in disciplinary matters opposed to the law of the State, may pro-
hibit their public exhibition and their coming to the knowledge of
the faithful. He may, furthermore, subject to the laws in force
and to the sanctions of penal law persons who, in consequence of
the excitations of the ecclesiastical authorities, have in the exercise
of their functions, violated the rights of the State. Finally, he
may forbid the promulgation by those who owe obedience to the
superior ecclesiastical authorities of a doctrine contrary to the
rights of the State.
Unicuique Suum.
The sovereign of a State cannot enter the domain of conscience,
but he undoubtedly can repress any external act contrary to the
rights and interests of the State and can make the guilty persons
answer therefor in accordance with the laws in force, even though
such acts are alleged to have been performed in obedience to and
under the influence of a religious sentiment.
And so, a church must, so far as the external development of its
functions and cult is concerned, remain always subject to the
laws of the state in which the exterior functions and the cult are
being exercised, its relations naturally falling within the scope of
public internal law.
The administrative functions appertaining to the goverment of
the Church must be subject to the general law in force in the
state where such functions are exercised, whenever such exercise
implies relations within the domain of municipal public or private
law.
50
INTERNATIONAL LAW CODIFIED
The independence of the ecclesiastical government, for example,
certainly cannot claim to be endangered by reason of the fact that
disputes which may arise between the administration and private
persons in consequence of administrative acts are referred to the
ordinary courts. Supposing that the head of a pontifical congrega-
tion, in the necessary conduct of its affairs, had signed a contract
which had caused litigation, could one truly deny to the ordinary
courts the jurisdiction to settle the controversy and claim that,
if we admit such authority, the independence of the ecclesiastical
government has thereby been endangered? In our opinion, cer-
tainly not.
To sum up, the relations between Church and State must be
based on reciprocal liberty and independence. Free Church and
free State--always, of course, in the sense that freedom, which
may be claimed by any one, is the freedom to exercise our powers
and to develop our activity within the limits of our own right.
It is, consequently, the duty of every state to repeal all laws
restricting the freedom of the Church and to prohibit all interfer-
ence of the political authority in matters relating to the exercise
of the spiritual power and to ecclesiastical functions.
It is the duty of all churches and of the head of the Roman
Catholic church to renounce all claims whatever to territorial
sovereignty and any exercise of the rights of political authority.
18. At this point, I beg leave to sum up the ensemble of the
system which, in my opinion, may be best designed to give in-
ternational society its true political organization. We must en-
deavor to arrive at the declaration and vindication of the rights
of all members of the international society. It is necessary to
broaden the conception of freedom and equality and to consider
both not only as territorial, but as international rights as well.
Nevertheless, by accepting the concession of international
freedom and of international legal equality, it does not follow that
they may all claim the same legal status and capacity.
International legal equality means that each must be equal
to the others so far as the legal capacity determined by his legal
status and the enjoyment and free exercise of his own rights are
concerned.
Therefore, it is quite evident that individuals, peoples, nation-
alities, Churches and other collectivities cannot claim all the rights
TRUE PURPOSE OF THE SCIENCE OF INTERNATIONAL LAW
51
appertaining to the State. Each can have only the right which
belongs to it, according to its own legal status.
It is manifest, for example, that the capacity to conclude treaties
can be possessed by no one but the State, which is due to the fact
that the State alone can contract an international obligation and
stipulate the terms of a treaty. Neither man, nation, people (be-
fore they constitute a State) the Church, nor any other association
can conclude a treaty or contract a true international obligation.
An international obligation, unlike the obligation which may
exist between private parties in civil or commercial matters, is,
by nature and object, an obligation of public law and political
law. A treaty whose object would be the obligation to give, or to
do or not to do a thing, or whose object would be to regulate or
limit the exercise of the respective rights or to annul or modify
previous obligations, can be entered into only by the State, as the
international obligation can only be assumed by the State. Such
obligation, as a matter of fact, always bears the characteristics of
a material obligation, or is of a nature seriously affecting the
economic life and financial interests of all the community, or of
a political nature affecting the life and personality of the State.
It is quite evident, therefore, that the State alone can conclude
a treaty, as the obligation contracted by means of a treaty is one
of public and political law, and represents always an obligation of
the political community uti universitas.
It is clear to my mind that the capacity to contract an obliga-
tion of such a nature is one which can belong to the State alone,
which is a political and public institution. My theory, therefore,
does not contradict the aphorism of publicists, according to which
only the State can be considered a subject capable of assuming an
international obligation to other states and to subscribe a treaty;
an aphorism from which they have deduced the principle that the
State alone must be considered a subject of international law.
Thus, it must be agreed that the capacity of each depends on his
legal status; consequently, it is not difficult to understand that,
granted the existence in the international society of various indi-
vidualities and collectivities, and that all must be considered
subjects of international law, still it cannot be admitted that they
all have the same legal status and capacity.
Not even the head of the Roman Church has the power to con-
52
INTERNATIONAL LAW CODIFIED
clude treaties. Such power ought to be denied him for the simple
reason that the Church is not a political institution, but an insti-
tution of a religious nature, and for that reason, he is not qualified
to assume an obligation of a political nature. No one can prevent
the head of the Church from concluding with sovereigns of different
states conventions designed to regulate by agreement the exercise
of their powers in all matters concerning common interests. But
the conventions called "Concordats," referring always to matters
of public internal interest, fall for that reason within the domain
of the public law of each state and not within the sphere of inter-
national law.
What we have said may serve to indicate roughly the way
which must be followed in order to give to international society
a proper legal organization. It will take a long time to attain that
end and success will come only in a more or less remote future. It
will be the work of time and civilization; it will be the final result
of the evolution which must take place through the co-operation
of the intellectual forces of all civilized countries.
It is well to bear in mind that in determining the principles of
equilibrium and in regulating the exercise of rights and liberty in
the modern state it was necessary to correct many wrong opinions,
to destroy many prejudices, and to go through different cycles:
e. g., the preponderance of the sacerdotal caste; class privilege;
the autocracy of monarchs; pre-eminence of dynastic politics;
sovereignty of the people; and parliamentary sovereignty.
And the same will be true in attaining that arduous, complex and
difficult object, namely, the legal organization of international
society. It will be reached only by a transition through various
cycles. That will be the task of science and the work of time and
civilization.
The sages of centuries ago unceasingly advanced and perse-
veringly struggled, united, under the motto: Equality and Liberty.
Their efforts have resulted for us in the great benefit of the organi-
zation of the political community. It is incumbent upon us to fol-
low the good road and to struggle united under the motto:Mankind,
Fraternity, Cosmopolitism, in order to hand down to our successors
the rational organization of international society.
CHAPTER III
FORMULATION AND LEGAL PROTECTION OF
INTERNATIONAL LAW
19. Method of enunciating the common " law. 20. The Congress and its
authority. 21. Its constitution. 22. The confederation of states as a
means of maintaining order in the international society. 23. Codification
of international law. 24. How to insure full efficacy to the international
jurisdiction. 25. The Conference. 26. Arbitral jurisdiction. 27. How to
make it effective. 28. Diplomatic action, good offices, mediation. 29.
Efficacy of public discussion. 30. Coercive measures short of war.
31. Conclusion.
19. One of the greatest difficulties to overcome in order to attain
progress--the realization of which is the aim of science--is to
find a method of formulating and announcing the rules which
should constitute common," law, to make such rules binding as
law, and to insure their universal respect.
The difficulty is all the more serious and complex because the
idea of a state possessing over others superior authority, by which
it might impose its will upon them, is one that cannot be enter-
tained.
After the Congress of Aix-la-Chapelle of 1818, the five great
European Powers believed that they had the right to constitute
themselves as a permanent council to regulate, by common agree-
ment, European affairs, and to exercise a veritable hegemony
over the minor states. The development of more accurate legal
views, however, and the progress of civilization took from this
Council, called the Pentarchy, all its power. The principle of
the legal equality of states is inconsistent with the preponderance
of certain states over others.
One should bear in mind that the purpose of the common law.
of the international society must be to declare and guarantee the
rights of all and to regulate all the relations and interests of the
members of that society. This law must not be proclaimed for the
sole advantage of states and governments; its object should also
be to protect the rights of nations, nationalities and collectivities,
53
54
INTERNATIONAL LAW CODIFIED
which should themselves, in their relations with the State, be
governed by the law common to them all. It should contribute to
preserve the balance of all active forces and to determine the rule
of proportion between what everyone may and may not do.
Inasmuch as the law of the international society must be pro-
claimed in the interest of all its members, it is evident that the
right to determine this "common” law cannot be the privilege of
any one member of that society. One must likewise bear in mind
that, since all human things are subject to the law of evolution, the
same axiom applies to international relations at various periods. It
is, therefore, necessary that the laws which at the present time may
govern legal relations in the international society should not hinder
future progress and should take sufficient account of the evolution
such relations must experience. These cannot be immutable and
permanent. Consequently, it will be expedient to determine the
laws most suitable at any given period to govern international so-
ciety, and it will be necessary for that purpose to take into account
historical conditions—the result of intellectual activity, culture
and the progress of civilization.
Such is likewise the general rule applying to all branches of
human law. Man cannot lay down absolute, immutable and
permanent rules. He must not forget that the laws intended to
regulate any form of relations must be based on principles of
natural justice; but as he is always supposed to take historical
exigencies into account, he should lay down legal rules suitable
to the circumstances of the time.
Accordingly, the common law of the international society should
be formulated and declared binding by the members of such de
facto society, interested in providing themselves with a law to gov-
ern their association. Another result is that, as such a law is
subject to evolution, it is quite useless to establish a permanent
legislative power.
20. Consequently, the best policy, in our opinion, would be to
create a legislative assembly, in which all those having de facto
relations with one another in the international society would be
represented. This assembly would constitute the Congress, to be
composed of the representatives of all the states desiring to or-
ganize into a union, and of members directly elected by the people
of such states.
1
FORMULATION OF INTERNATIONAL LAW
55
The Congress, we believe, should not be a permanent organiza-
tion, but should convene whenever the historical exigencies of the
international society require the declaration of new rules or the
modification of existing rules. It should then adjourn directly
after accomplishing the task for which it convened.
In order clearly to explain our idea, we say that we believe it
indispensable that the assembly be composed both of the repre-
sentatives of the State and of those of the people. As previously
pointed out, the people have international rights which may be
distinct from those appertaining to the State.
I have said that it seems to me indispensable to dismiss the idea
of a permanent Congress, for, inasmuch as any human law must
follow the progressive movement of evolution, there is an incom-
patibility between such movement and any permanent legislative
authority.
21. How should the Congress be constituted?
So far as the representatives of the states are concerned, we
agree that they may be designated by the sovereign of each state,
two in number, for instance, without any difference between great
and small states. This we consider indispensable to give to the
assembly its true character. If the Great Powers could have
more representatives, or their representatives have more votes,
the result would be to give the ascendancy to those Powers and,
indirectly, to admit that superior force might constitute the basis
of a pretended legal authority.
The true organization of the international society is not possible
unless all the states, when it comes to draw up the “common” law,
occupy a position of legal equality. Common law does not favor
the interests of any particular state; it concerns the general in-
terests of all society. It must, therefore, be admitted that all
the states desiring to organize into a union have an equal interest,
as states, in formulating the common law to govern their relations.
The representatives of the people in the Congress would be
elected by the people themselves, according to a special elective
system provided by the law of each country, and distinct from the
system in use for political elections. The law governing the elec-
tion to the Congress of the representatives of the people should, in
our judgment, sanction the principle of restricted and limited
suffrage, inasmuch as, in order to arrive at a judicious choice it
56
INTERNATIONAL LAW CODIFIED
would seem necessary that the electorate be limited to the well-
informed classes.
We do not favor the election of the representatives of the people
by parliament, because with the parliamentary system where the
majority represents the Government's present policy, the members
of the Congress so elected would merely reflect the policy of their
country's parliament.
The Assembly or Congress, as we conceive it, would not be
constituted permanently. It should not be allowed to become an
institution hampered by tradition; it should be an assembly con-
stituted from time to time to settle certain international questions.
We fully realize that the system we are suggesting will not become
a reality either at the present time or in the near future. We are
urging it only because we think that all the other systems suggested
are inadequate. Such systems either require a complete transfor-
mation of international society, and for that very reason are im-
practicable, or else they sanction the preponderance of the Great
Powers over small states and may cause politics to prevail over
right, and as such are equally dangerous.
22. In our book, published in 1865, we examined the pro-
posal of a confederation of states as a mean of preserving order
within the international society and of eliminating war. Such a
measure had been suggested by several jurists, who had in view the
formation of an association between equals, all the members of
which would be so dependent on one another that any arbitrary
act on the part of any one of them could be forbidden.
This is the system conceived by Rousseau in his Project of perpe-
tual peace. All the European Powers were to unite in a confedera-
tion; a legislative body would represent the central power and
could enact laws and issue general regulations for the government
of the Confederation; a judicial body would be entrusted with
the application of the regulations designed to settle all differences;
a central authority would have the coercive power to force the
confederated states to abide by the “common” law and to induce
them to comply with their obligations.
This project was favored by many. Its main fault was that the
Confederation, like the Germanic Confederation, would have been
composed of sovereigns, and that it was proposed to organize a cen-
tral armed power for the purpose of eliminating military preponder-
FORMULATION OF INTERNATIONAL LAW
57
How could one expect the triumph of justice under these
circumstances? Justice is not always found on the side in which
political interests predominate; it is found at its best in the con-
science of the people and in the impersonal domain of public opin-
ion. How, on the other hand, could one lastingly assure the legal
equilibrium between the interest of the Great Powers and the inter-
est of collectivities and nations? 1
As a matter of fact, international society includes states, in-
dividuals and collectivities, and each one of its members has in-
ternational rights as against the others. Now, in the natural order
of things, such society ought, we think, to provide a law for its
organization.
These two considerations have led us to believe that the co-
operation of all the parties concerned should be deemed indispen-
sable. We cannot concede either the superiority of the Great
Powers over the minor states, or the exclusive authority of gov-
ernments, or any privilege. It is best to allow all the interested
parties to participate in the making of the common law.
The realization of our scheme does not call for a complete modi-
fication of the present organization of international society; it
only requires the perfection of that organization. Moreover, we
are already following the right direction. All the states, great and
small, have been convoked in the Hague Conference. This fact
constitutes a precedent of importance. It has thereby been rec-
ognized that the international society of states must be a true as-
sociation of equals, and that an assembly meeting to draw up
general regulations cannot comprise merely the representatives of
the Great Powers.
1 This is what we said in our book published in 1865, in opposition to this
proposal: “We ask the partisans of the permanent Congress and of the per-
manent Court: What assurance have we that in this congress of Princes justice
will truly prevail? To expect such justice, sovereigns, in the first place (the
most inveterate sinners the world has ever seen), would have to be converted.
And should the interests of the Great Powers supersede justice in the permanent
Congress, one would have to justify their omnipotence by placing all armed
force at their disposal, and, by paralyzing the other states, condemn them to
inactivity. If the interest of the minor states is, in the Germanic Confedera-
tion (which inspired the scheme for an European Confederation), sacrificed
to that of the two Great Powers belonging thereto, why should we not suppose
that the same will be true of the European Confederation?” (Op. cit., Chap.
VI, Della confederazione degli Stati come mezzo per prevenire la guerra, p. 350,
French edition, p. II, p. 190–191.)
58
INTERNATIONAL LAW CODIFIED
The only thing lacking to make such an assembly conform with
our scheme, is popular representation, which, we may hope, will
ultimately prevail. Perhaps the Interparliamentary Union might
demand and obtain popular representation.
23. What should be the purpose of an assembly organized along
the lines stated? Should it be to undertake the drafting of a real
international code?
The idea of codifying international law has been urged as one
of the means of bringing about the legal organization of interna-
tional society.
First, let us note the fact that the codification of a part of the
law, whatever part it be, can only be the final outcome of long
and scientific preparation and labor. The codification of inter-
national law, even limited to civilized countries, would be an un-
timely undertaking. In our opinion, the assembly should limit
its work to fixing by common agreement the rules of the common
law, which may constitute a new basis of organization of inter-
national society and result in ending the present situation, in which
force prevails over right. In fact, to attain practical results, one
must not overdo things and be content with slow progress.
The work begun at the Congress of Paris of 1856 should be
carried on, and be directed toward fixing those principles of the
modus virendi which are most urgent and are most generally and
consistently recognized. This Congress laid out the rules concern-
ing the obligations arising out of neutrality, the suppression of pri-
vateering, and the rights of belligerents in time of maritime war.
These rules are merely the expression of the legal principles con-
sequent upon prolonged legal work, whose adoption was demanded
by the public opinion of civilized countries. The wisest plan would
be to fix the rules on which an agreement is most likely to be
reached, because public conscience demands them, and to place
them under the collective guaranty of the states recognizing them.
As to the points on which differences of view exist, it will be nec-
essary to wait until science and civilization have opened the way
to an agreement. As regards certain matters of common interest,
we shall have to wait until a common opinion shall have been
expressed as to the necessity of a partial codification.
We have already developed this idea in our lectures given at Brussels.
We had, indeed, formulated this view in the early stage of our study of the
1
FORMULATION OF INTERNATIONAL LAW
59
We cannot better express the true purpose of future congresses,
as regards the codification of international law, than by quoting
Rolin-Jacquemyns: “The progress of science and of law in this
matter of codification," he says, "may be somewhat likened to the
land cultivated, near the mouths of the Scheldt, over the area
formerly covered by water. The riparian owner, patient and
experienced, does not hasten to dam up the area left uncovered
matter; for, on page 277 of our work, published at Milan in 1865 (Nuovo Di-
ritto internazionale pubblico secondo i besogni della civiltà moderna), we said:
“The Congresses should not, in our opinion, attempt to limit war and dis-
putes, but ought to study the means of preventing them. Since the Congress
of Paris opened up a new era in the history of diplomacy, we hope that
the meetings of sovereigns will become as useful as they have, till now, proved
harmful. The Congress of Vienna represents to our mind the last form of
what congresses have been in the past; the Congress of Paris is the beginning
of what congresses will be in the future. Thus, as the former ends the old his-
tory of diplomacy, the latter is the beginning of its modern history.
“We know that reforms cannot be realized at once. The intrinsic perturba-
tions of law can only be remedied gradually by successive reforms and con-
tinuous efforts; but we feel certain that public opinion,--that all-powerful
ægis of the public law of the future, with its hundred voices, like hundred-eyed
Argus-will be the guide-posts of future congresses."
Again, on page 293 of the same work, we said:
'We hope that the program outlined at the Congress of Paris will be more
thoroughly developed in another general European congress, and we desire
that important congresses shall meet, not after a bloody war, but in time of
peace, to lay down the principles of the new international law, upon which
must be based the existing social order.
"The European Powers declined the invitation of France to meet in a con-
gress in order to settle the many questions which are compelling Europe to
remain under arms in time of peace and constitute an obstacle to public
prosperity. But the only reasons which caused the Great Powers to decline
that invitation were self-interest and the love of unsound politics. As a matter
of fact, they saw the need of adopting new principles in contradiction with the
policy they had hitherto followed, and that they further intend to follow. But
the need of a general congress is felt even by the Powers opposed to it; and
what will bring them to discuss the questions that have disturbed, and are
still agitating, Europe, will be the force of events and the indestructible power
of public opinion.
"The most powerful protection of the right of peoples, and the most power-
ful force likely to end the exterior perturbations of states, is public opinion,
sovereign of the world, as Pascal called it. Diplomacy would deny the secret
of its power, but it is nevertheless certain that, sooner or later, diplomacy will
have to take it into account, because it is implacable, unbridled, and immut-
able. It cannot be subdued by interest, nor subjected by force, because it is
impersonal. The force of public opinion lies in its impartiality, and we are
fully satisfied that it will reconcile the Powers to the idea of the meeting of a
congress, and compel them to acknowledge principles of law hitherto disre-
garded and violated in the interests of sovereigns,"
60
INTERNATIONAL LAW CODIFIED
by the receding water, for fear that a violent return of the tide
may take away from him more than he had been eager to appropri-
ate. He waits--as he expresses it-until the alluvion is ripe.
Similarly, the codification of international law must be like a pro-
gressive damming of the matured parts of the law against the
waves of arbitrariness.” 1
24. We have attempted thus far to determine the law which
should govern international society; but it is necessary, besides, to
insure the respect of established rules, and to find, as a means of
coercion, a rational system other than the recourse to force.
We leave aside the constitution of an international permanent
court. Besides, as we have said, we consider arbitration as in-
adequate.
An arbitral court could not settle all difficulties, for certain dis-
putes cannot be submitted to it as involving general interests
and the existence of international society.
And so, without underrating the importance of arbitration, we
favor a different institution, the Conference, which would become
a sort of arbitral court, to which would be referred those disputes
which, by their nature and object, cannot be submitted to arbitra-
tion.
To our mind, the Conference should represent a sort of executive
and judicial power. It would not be a permanent body, but an
institution with a well-defined purpose, to be constituted whenever
circumstances might justify it. It should be given the necessary
power to insure the respect of the international laws promulgated
by the Congress, to prevent disturbances arising out of the non-
observance of such laws and to apply them towards settling
disputes of a complex nature which may disturb peace and the
legal organization of international society. The Conference
should consequently, we believe, represent a sort of arbitral court,
but of a superior order; its purpose would be to preserve in the
international society the legal organization established by the
Congress. In order to attain a true international organization,
it is necessary to find the principle of equilibrium, and to define
accurately the attributes of any institution. Arbitration is a use-
ful institution and if, under the present conditions, governments,
seeing the advantage of peacefully settling differences, undertake
1 Revue de droit international, v. IX, p. 147.
FORMULATION OF INTERNATIONAL LAW
61
to consent to arbitration (even in a limited manner), they are thus
clearly manifesting their desire to prevent international distur-
bances. But, we repeat, the international questions liable to dis-
turb peaceful relations and to bring about a general conflagration,
are those complex questions which by their nature cannot be
submitted to arbitration.
Such disputes ought to be referred to the Conference. As they
are not of daily occurrence, it is not indispensable that the Con-
ference be a permanent institution. It should convene only when
a dispute arises within the domain of its jurisdiction.
25. How should the Conference be constituted? It should, we
believe, comprise two delegates from each of the Great Powers,
appointed by the governments at the time of the meeting of the
Conference; the delegates of the government or governments
directly interested in the case; and finally the representatives of
the people, specially elected by the people for the Congress. 1
The delegates of the Great Powers and the people's representa-
tives ought to have a deliberative voice. The representatives of
the state directly interested in the pending question ought to take
part in all the discussions, but without any right of vote.
According to the system proposed, any of the states belonging
to the union might call a meeting of the Conference. Such meet-
ing would take place whenever a dispute has arisen between two
or more states concerning the interpretation of a rule of law pro-
claimed by the Congress, or concerning any principle of general or
common law, provided the question could not be settled by di-
plomacy.
26. Now, let us take up arbitration. The purpose of arbitration
must be to settle all questions of personal interest arising between
two or more states by applying rules of common law laid down by
the Congress, or rules arising out of treaties concluded between
the parties to the case.
Everything relating to the formation of the arbitral court:
choice of the arbitrators, qualifications required to be an arbitra-
1 In order that our idea may clearly be understood, we may say that, as
the communal or provincial council selects the Junta from its own members,
so the members elected by the people for the Congress should, before the
Congress adjourns, select among themselves the members for the Conference,
when such Conference eventually convenes. These members so nominated
might number seven, for example, or be more numerous.
62
INTERNATIONAL LAW CODIFIED
tor, procedure of the arbitral court beginning with the compromis,
annulment or suspension of the compromis, rules to be observed
by the court in order to render an award and make it operative,
causes of nullity entitling the parties to take exception to the
award-all this should be provided for in general regulations en-
acted by the Congress.
There is no necessity here to examine the principles governing
the general rules relating to arbitration. It is merely necessary to
determine what we consider essential to give to arbitration its
full operative power.
Let us suppose that the point at issue is one concerning a partic-
ular interest, which, as we have said before, may be referred to
arbitration, and that one or other of the parties declines to sub-
mit to arbitration and threatens to disturb the peaceful relations
existing between itself and the opposing party. The difficulty
thus arising would constitute a question of general interest. In-
deed it is a matter of common interest to prevent complications
which threaten or disturb the peaceful relations of states, since
an arbitrary act in the international society constitutes a danger
for all, and not merely for the state against which such act is
directed.
It should not, in our opinion, be left to either party freely and ar-
bitrarily to accept or decline arbitration, for otherwise a true legal
organization would be created in appearance only. We do not
go so far as to consider arbitration as an institution capable
of eliminating absolutely all danger of war; but we maintain
that it must be considered as capable of bringing about the peace-
ful settlement of any question within the domain of arbitral
jurisdiction.
We believe, therefore, that the submission to arbitration, may,
if not willingly accepted, be imposed.
The voluntary submission would always arise out of an express
clause of a treaty under whose provisions the parties may have
agreed to submit to arbitrators any misunderstanding which might
arise between them, or out of a special compromis, under which
they may have bound themselves to refer to arbitrators some
particular legal dispute.
Compulsory arbitration should be the result of a deliberation
of the Conference which, by affirming that the point at issue is
FORMULATION OF INTERNATIONAL LAW
63
.
justiciable by arbitrators, would impose arbitration on the parties
in the absence of a compromis.
27. Accepting the conception of the Conference as we do, its
aim would be to prevent international difficulties liable to disturb
peace. Consequently, it ought to be entrusted with the mission
of giving to arbitration its full effect, and of deciding that the
parties should submit to arbitration when the nature of the dispute
is capable of submission to arbitration.
The Conference should also have the power to compel the par-
ties to execute the arbitrators' award.
The method to adopt, we believe, might be as follows: Let us
suppose that a dispute arises between two or more states, and that,
in the absence of any contractual agreement, one of the parties
should claim that, the case being of a nature to be submitted to
arbitrators, it is willing to agree to arbitration, and so notifies the
other party. If, following this diplomatic notification, the other
party should persist, while maintaining its contentions, in refus-
ing to agree to arbitration, the adverse party, after establishing
such refusal, could appeal to the Conference and the latter would
have the right to impose arbitration.
The Conference could be appealed to even where a compromis
exists, when one of the parties refuses to accept arbitration be-
cause the object in dispute is alleged to be outside the terms of
the arbitral agreement, or when one of the parties claims that, in
the particular circumstances of the case, the object in dispute
could not be referred to arbitration, notwithstanding the agree-
ment of both parties to refer to the decision of arbitrators any
difficulty whatever.
Now let us suppose that the party found in the wrong by the
arbitral court should refuse to abide by the award.
It is absolutely necessary, in order to make arbitration really
successful, that the execution of awards be assured. The arbi-
trators' decision must as a rule be considered as final and as settling
completely the question submitted to them. Therefore, the parties
must recognize in the decision of an arbitral court the authority
of a final judgment and execute it fairly, without reservation or
restriction. Should one of the parties refuse ultimately to execute
an award and if, the other party insisting, it should persist in its
refusal, it should be determined whether such refusal is legitimate
64
INTERNATIONAL LAW CODIFIED
or not. The decision of such a question would lie with the Con-
ference.
It might happen that such refusal is based on the alleged nullity
of the award. In order justly to weigh such a contention, it would
be necessary that the general regulations on arbitration, drawn up
by the Congress, should fix and determine the grounds for nullity
which might be invoked against an award. It would be quite
proper, furthermore, to charge the Conference--whose duty,
according to our system, it should be to insure the observance of
the rules adopted by the Congress-with the decision as to whether
the refusal to comply with the award because of nullity is legitimate
or arbitrary, with the faculty, in appropriate cases, to suspend
the execution of the award either wholly or in part, or to compel its
execution.
28. Among the measures calculated to prevent international
difficulties must be mentioned diplomatic action, good offices and
mediation.
It is not merely to fulfill a humane duty, but also to protect
the interests of its country, that every government must co-
operate and employ its moral influence to settle a dispute arising
between two states. At this time, in fact, the interests of all
countries are so completely interdependent, that no event can take-
place in any part of the world which affects merely the personal
interests of the parties concerned. International trade has made
the division of labor and the maintenance of peaceful relations
between all states an absolute necessity. Any disturbance
always brings about within a state economic and social unrest.
The true aim of a prudent and shrewd policy must be to recon-
cile the interests of each country with those of other countries.
Any diplomatic action tending peacefully to settle conflicts be-
tween states must, consequently, be considered not only as a
humane action, but as an act of wise policy.1
29. Public discussion will prove one of the best means of con-
tributing to the pacific solution of disputes. It is important to
place the question at issue squarely before public opinion, in order
that it may pass judgment.
The mysterious power of public opinion is growing constantly,
1 See our article published in the Digesto italiano, s. V, Agenti diplomatici,
$ 385 et seq., Della vera missione della diplomazia,
FORMULATION OF INTERNATIONAL LAW
65
now that the telegraph informs us with the swiftness of thought, as
it were, of anything that takes place in the most distant countries.
In proportion as the sentiment of solidarity of the civilized nations
develops, they will better understand their common interest in
assuring the dominance of the principles of justice over those
of politics. Public opinion will be increasingly better informed,
in proportion as popular representation assumes a larger share
in the government of public affairs and in the direction of foreign
policies. Within each state, public opinion may be influenced
and corrupted by the intrigues of politicians; but public opinion
in the world at large is always impartial, just as it is impersonal
and disinterested. It is called upon to exercise an ever-increasing
moral influence over diplomacy. Discussion taking place in broad
daylight, it will be more difficult for politics to prevail over right,
and for governments to upset with impunity the equilibrium of
the international society.
It is this that suggests to us, as a rule of common law, which the
Congress could formulate, that whenever a dispute arises between
states of the Union which has failed of settlement through dip-
lomatic negotiations, good offices, and mediation, the parties
should acquaint the other states with the cause of their misunder-
standing
The state claiming injury should be bound to specify, through
a diplomatic note addressed to the other governments, the reasons
upon which its claims are based. The other party should likewise
explain its conduct in a note addressed to the same governments.
All the communications should be made public, in order properly
to enlighten the discussion and squarely to set forth the conditions
of the international dispute to public opinion.
If, after such a public discussion, the party in the wrong should
persist in its claims, the question could be referred to the Con-
ference, to decide whether the matter in dispute is within the
jurisdiction of an arbitral court or within its own jurisdiction.
In the former case, the Conference would order that the question
be brought up before the arbitral court, and arbitration would be
imposed.
Should the matter in dispute be complex and should it be feared
that peaceful relations between the states organized as a Union
might be disturbed, the Conference could decree the coercive
66
INTERNATIONAL LAW CODIFIED
measures necessary to insure the observance of the common law
which should govern international society.
In this order of ideas, one could justify collective intervention
whenever it should be necessary to safeguard the authority and
the observance of the common or general law.
For it must be admitted that it is the duty of all the states
organized as a Union to assure the respect of the common law es-
tablished by them through legal measures provided in conformity
with international law. The particular law established between
two or more states by treaty may be the object of protective
measures agreed upon by the parties, provided that such measures
are not contrary to common law. Nothing more effective could
be found to safeguard common law than the collective legal pro-
tection of the associated states. The Conference which, under
our system, must assure the respect of international law by all
the world must justly be considered competent to determine the
measures best adapted to that end.
The Conference would, consequently, be competent to decide
whether a state or a people have so acted as to violate common law.
To prevent an unlawful act, it should be given the power, in the
first place, to order the use of all the peaceful means usually re-
sorted to in settling disputes, that is to say, good offices, mediation
and all forms of diplomatic action. It could, consequently, en-
trust a Power with the mission of acting as mediator to the parties.
In such case, in order properly to fulfill its mission, the state so
designated ought to have the right to request the submission of all
the documents relating to the dispute, to seek information con-
cerning the nature of the dispute, to examine the diplomatic
negotiations and the supporting documents of all the parties.
It should weigh in good faith and impartially the reasons invoked
in support of the reciprocal claims of the parties, and should act
as a wise and prudent conciliator in order to remove all difficulties
and endeavor to bring about between the opponents an agreement
or a reasonable compromise.
If that be not sufficient, if the party in the wrong should per-
sistently refuse to yield, the Conference could finally order the
use of the coercive means authorized in times of peace, without
resorting to the disastrous and terrible method of war.
This is a case where collective interference (or what we would
1
FORMULATION OF INTERNATIONAL LAW
67
call the European or American Concert) is fully justified. The
concert cannot compel the world to accept the decisions of the
Great Powers; but we must consider as legitimate and conforma-
ble to justice the collective protection of common law, whose
respect it would insure by applying to any state violating it the
peaceful coercive measures decreed by the Conference.
30. We do not think it necessary to dwell at length on the sub-
ject of lawful peaceful measures other than war. As a matter of
fact, no one can deny that, if a state refused to respect common
law, to comply with the decisions of the Conference, or to execute
the awards of an arbitral court, the Conference should have the
right to decree the use of coercive measures lawful in time of peace.
According to our system, such measures should be decided upon
by the Congress. Everything relating to general interests would be
within its domain. It would have to regulate the international
society formed by the states constituting the Union, and to lay
down the rules for the collective legal protection of common law.
It should also have the power to provide for extraordinary means
to prevent an impending war, or, after it has broken out, to in-
terrupt its disastrous consequences.
Among such measures, we admit the commercial or pacific
blockade, provided it does not assume the same character as the
blockade resorted to in time of war.
31. The system thus set forth has guided us in the study of
the principles which we shall develop in the course of this work,
although at the same time we do not believe that its immedi-
ate realization is possible. This great reform will be the work of
time and evolution. We have merely attempted to point the
way which must be followed, with the object of inducing every-
1 This idea to give to Congresses a purpose quite different from the one they
now have and to consider this reform as the most useful measure for the legal
organization of international society has been my constant conviction from
the very beginning of my studies on this subject. In the book published at
Milan in 1865 under the title Nuovo Diritto internazionale pubblico secondo i
bisogni della civilta moderna, which was translated into French by Pradier-
Fodéré in 1868, I had demonstrated the necessity of giving to Congresses
the noble mission of establishing the general rules of the law of nations, and I
had maintained that all the representatives of the states, without distinction
between small and great Powers, should sit in these Congresses. See Chap-
ter XLII of the work Principii direttivi dei congressi internazionale, p. 272,
and the important foot-note of Pradier-Fodéré on this chapter in the French
translation, v. II, p. 64.
68
INTERNATIONAL LAW CODIFIED
body to lend us the most effective co-operation of his intellectual
powers.
This movement will be particularly favored by the increasing de-
velopment of international trade and civilization. These constitute
two powerful factors, which will continue to secure, strengthen and
increase the same aspirations, the same sentiments, and the same
ideas, as far as the common interests of mankind are concerned.
Instead of a coalition of states, we shall see realized a confedera-
tion of civilized nations. All will agree in considering war a most
disastrous scourge, and by the union of their forces, they will com-
pel governments to renounce the aspirations of military greatness
and to consider war as the greatest of all crimes.
As for us, we shall never lose faith in our ideal.
THE PRIMITIVE BOND OF MANKIND WAS THE FAM-
ILY, THE FINAL BOND WILL BE THE LEGAL CON-
FEDERATION OF CIVILIZED NATIONS.
CHAPTER IV
THE AMERICAN INSTITUTE OF INTERNATIONAL LAW
JEROME INTERNOSCIA'S NEW CODE OF INTER-
NATIONAL LAW
32. The American Institute of International Law proposed by James Brown
Scott and Alvarez, and its purpose. 33. Opinion of various European
jurists as to its purpose. 34. Our opinion. 35. Internoscia's new Code
of International Law and its purpose. 36. Our opinion of Internoscia's
work.
32. On the initiative of the eminent publicists, Drs. James
Brown Scott and Alexander Alvarez, there has been founded in
America the important association known as the American Institute
of International Law. It is a scientific association with no official
character, whose aim is:
a. To contribute to the progress of international law and to
cause the nations of the American continent to accept its principles;
b. To promote the scientific and methodical study of interna-
tional law, to popularize its principles, to diffuse their knowledge
in their application to the conduct of international relations;
c. To contribute towards a better understanding of interna-
tional rights and duties, and the formation of a common sentiment
of international justice among the peoples of the American con-
tinent;
d. To endeavor to bring about the universal acceptance of
pacific action in the adjustment of the international relations of the
nations of the American continent.
With these objects, the American Institute of International Law
was created to formulate general principles of international law,
to strengthen the bonds which unite the American peoples to one
another in order adequately to provide for the needs of the Ameri-
can Republics in their reciprocal relations, as also for those of an
internal character, so as to respond to the legal conscience of the
civilized world. It also proposed to discuss questions of inter-
national law, especially those likely to arise among the Ameri-
69
70
INTERNATIONAL LAW CODIFIED
can Republics, and to endeavor so far as possible to settle them
in conformity with the principles generally accepted by interna-
tional law; or by extending and developing such principles in
response to the express or implied aspirations of the American
Republics, in conformity with the essential principles of right and
justice.
The two eminent American publicists then outlined the pro-
gramme of their new institution and requested European jurists
to express their opinion as to the advisability of the new Institute
contemplated.
33. Various members of the Institute of International Law have
discussed the proposed foundation at length. The discussion was
initiated by an article published in the Revue générale de droit
international public by Lapradelle, under the title: L'Institut
américan de droit international.? Thereupon, Bar, Catellani,
Dupuis, Fauchille, Lammasch, Politis, Albéric-Rolin, Weiss, West-
lake and others expressed their opinions. The majority notes
the difficulty arising from the very title of the new foundation,
which, by assuming the name of "American," thus alters in a
measure the conception of the Institute of International Law, to
which ought to be assigned a world, rather than an European,
Asiatic, or American, character. The discussion of this matter
created great general interest, the more so as Dr. Alvarez (one of
the founders of the new institution) relied squarely on the Mon-
roe Doctrine and had in 1910 published a book entitled: Le droit
international américain, son fondement, sa nature. This volume
provoked the publication of the work of the Brazilian professor, Sá
Vianna: De la non-existence d'un droit international américain,
which he presented in 1912 at the Pan-American Congress. The
two publications gave rise to long discussions in America and in
Europe as to whether or not it could be admitted that American
international law possesses a special character, different from that
appertaining to universal international law. This, in fact, taken in
its correct sense, would mean the law of international society, that
is to say, of all peoples scattered over the world, with due regard,
for its proper application, to all the historical and moral conditions
of each region to which such law must be applied. The distinction
between American international law and international law being
1 Revue générale de droit internat. public, v. XIX, 1912, p. 1.
THE AMERICAN INSTITUTE OF INTERNATIONAL LAW
71
granted, hardly a person would admit the alleged distinction be-
tween American international law and European international law.
34. This is not the place to examine at length such a controversy,
or to set out and discuss the opinion of the eminent jurists who
expressed their views concerning the step taken by Drs. Scott
and Alvarez, who stood as sponsors for the creation of the
American Institute of International Law. We wish only to state
our own modest opinion as to the advisability of establishing such
an Institute.
No one, on principle, can deny that all men should co-operate
in the great work of establishing and drawing up a common law
and the rules of the association of civilized states.
This is the task of science, which best asserts itself in the scien-
tific society where collective effort takes the place of individual
endeavor. Its noble task is the development of the legal con-
science of civilized peoples with respect to the rules adopted to
govern the mutual relations of states, and the enunciation of the
present common law. Thus it will be possible to induce national
representatives to accept that law and to cause its proclamation
by the collective representatives of the states assembled in a
Congress.
The Institute of International Law, founded at Ghent in 1873
upon the initiative of eminent European and American jurists,
was established with that humanitarian end in view. Now the
great advantage which may also be derived from the contribution
to the great work of the American jurists assembled as a scientific
association must be generally recognized. I consider, therefore,
that the foundation of the American Institute of International
Law will be of great value from the point of view of the general
interest.
The foundation of the new association appears to us important
from another point of view. International positive law cannot
become the common law of the states in union unless it is accepted
and ratified by those who must recognize its compulsory legal
force. Now it seems to us that the American Institute of Inter-
national Law will be able to assist in demonstrating how certain
rules of common law are adaptable to the historical and moral
requirements of the American Republics. Thus, it will be possible
to eliminate certain difficulties in bringing about the acceptance
72
INTERNATIONAL LAW CODIFIED
by America of the rules of positive international law. The latter
will not constitute the common law of the states and groups of
states which live in a society unless they consent to recognize
its authority. Hence, it is necessary that it be adapted to the
historical and moral conditions and requirements of these states,
in order to make their recognition less difficult.
Now it is a fact that the American Republics constituted with
the sentiment of their independence have bound themselves
jointly and severally to protect it. This sentiment was solemnly
proclaimed by Monroe in his message of December 2, 1823, in
which he asserted that no European Power would have the right
to interfere with the destinies of the American Republics or with
their independence. This conception was subsequently exag-
gerated to the point of professing to uphold their independence
even in spite of international law and of laying claim to an Ameri-
can international law, a claim which, in an absolute sense, we can-
not support.
In a measure it cannot be regarded as forbidden to a state, as a
consequence of its autonomy and independence, to proclaim in its
relations with other states certain rules of law. It is necessary,
however, to observe that the rules thus proclaimed can only be
considered as rules of public internal law. We consider that the
same may be said of a group of states situated on the same conti-
nent. Such states, basing themselves on their autonomy and
independence, and with a view to better meeting their historical
and moral needs collectively considered, and to better safeguard
the development of their common interests, may agree to proclaim
in their relations with other states certain rules as their common
law. It must furthermore be noted that such rules, to be accurate,
could not have the character of international law, but rather that
of interstate common law. International law properly speaking
should constitute the common law of the states in any section of
the world which, being in union, have recognized the compulsory
legal force of the law proclaimed through their co-ordinate action.
A striking example of this is found in the rules agreed upon in the
last Hague Conference of 1907, in which states from all over the
world participated, 44 in number, several of them from America
and others from Asia.
The delegates plenipotentiary appointed to represent the several
1
THE AMERICAN INSTITUTE OF INTERNATIONAL LAW
73
1
states were unanimous in signing the various conventions, but
each made some reservation to the rules approved.
The conclusion to be drawn from the above is that the inde-
pendence of the American Republics in establishing rules of in-
ternational law proper may be considered as dangerous.
Unwillingness on the part of other states to recognize as common
law the law proclaimed by the American states would cause a great
practical drawback in the development of international law.
Thus, there would follow an actual change in the conception of
international law by the creation of an obstacle to the practical
establishment of a legal homogeneity between the European and
American states.
In order to obviate all disadvantages and prevent difficulties
which may arise in practice, we deem it advisable to draw a line
of distinction between international law proper and interstate law.
International law would be the complement of the legal rules most
likely to bring about the legal communion of all the civilized
states of the world, whether European, Asiatic or American. In-
terstate law, on the other hand, would indicate the common and
public law of the American Republics in their relations among
themselves.
Now, international law proper must, in respecting interstate
law, be in harmony with it. It would be necessary also to have
due regard for the rules established by the American Republics
as interstate law.
On the other hand, in order to contribute to the development
of international law and to make it applicable to all the American
Republics, the interstate law established by them should not be an
obstacle to their relations with other states. This must be deemed
indispensable in order to establish a legal community between
the European and American states.
This would be the exalted purpose of the American Institute of
International Law and the great contribution it could make to
the promotion of international law and the creation of a legal
community between European and American states.
Such an institution, as a scientific association without any offi-
cial status, should also endeavor to bring about the acceptance of
the general principles of international law proper by the American
See supra for the conventions signed.
74
INTERNATIONAL LAW CODIFIED
Republics and to aid as much as possible in harmonizing inter-
state law with the common principles of international law.
Bearing in mind this important mission, we feel sure that those
who have launched the project of the new institution will know
best how to organize their work so as to insure the realization of its
practical aims, and we predict for it the greatest success.
35. Internoscia is one of the most recent writers on interna-
tional law, and the author of the New Code of International Law,
published in 1910 in New York in three languages-English,
French and Italian.
In his introduction, the author, regarding the present law as
inadequate and in need of recasting, proposes a new order of
things designed to improve the internal law of nations. It is not
our intention to develop the author's conception as manifested
in his introduction, but to outline its fundamental points in order
to show the errors of method and system.
The author plans to present a code of international law capable
of regulating all possible relations between states, and of individ-
uals with states, with a view to abolish war and to substitute
armed peace. He states that "two-thirds of this Code contain
what is found in books on international law, published during the
last two or three generations. The rest, while it is not to be found
in such books, is yet not altogether new to modern minds; in fact
it is something felt by almost every heart beating in this twentieth
century, something which, if expressed in one phrase, might be
said to be a longing for universal peace.
He affirms that "the law, as it is, is inadequate, it needs recast-
ing; the law, as it is, is eaten by its own rust; at certain places it
reaches the ideal, at others it falls short of common sense.” “When
I say law-he says-I mean the highest type of law, the law of
nations, the international law which includes in itself all the other
laws of mankind.
Accordingly he conceives an interna-
tional law which, in his opinion, would be the law that the repre-
sentatives of all the states of the world ought to proclaim in the
international Congress. It is the latter's function, in his opinion,
to carry out the law and to insure respect for it, with the supreme
2 در
1 Internoscia, New Code of International Law, First ed., 1910, Introduction,
P. ix.
2 Id., op. cit., p. X.
THE AMERICAN INSTITUTE OF INTERNATIONAL LAW
75
1
right of appealing to international force in order to destroy a
state which would refuse to comply with the law so proclaimed.
He considers that "the most important function of the interna-
tional Congress is that of ordering the forcible execution of its
judgments. Such an execution, when made necessary by the per-
sistent refusal of the condemned state to comply with the inter-
national command, is nothing less than war; but if such an event
ever happens, it will be because of the folly of a single state, which
will still have the right to assert its independence and claim the
rights of a belligerent, even in opposition to the international
force." 2
He arrives at this result by considering that "the ideal of peace
is found in the aspiration towards a new organization of the com-
munity of states, an organization in which all the controversies
between state and state must, without exception, be solved by
legal means provided for that purpose, namely, an adequate body
of laws, magistrates to apply them, punishments for infringers,
and a regular force sufficient to inflict the punishment that any
state may incur." 3
He states that it would not even be decisive, as the community
of states, to be organized for the legal protection of international
law, must be a supreme power, designed to respect and to command
respect for the independence of peoples. Hence it seems to pro-
vide a codification which represents positive international law
and to institute a magistracy competent to apply that law. He
looks forward, therefore, to the realization of the triumph of peace,
as the outcome of a state of affairs which he thus describes: “when
the codification of international law will be identically accepted
by all the states, and when by the will of the whole civilized world
there will exist a supreme magistrature (sic) constituted by all the
states. Until this is done, and until war is abolished by the act
of all the states and a world-wide jurisdiction is constituted, war
will not change its functions and the dangers for right and for
civilization will not be diminished." 4
The author thus indicates his conception which prompts him
1 Internoscia, New Code of International Law, First ed., 1910, Introduction,
p. xi.
2 Id., op. cit., p. xliv.
3 Id., op. cit., p. xiv.
* Id., op. cit., p. XV.
76
INTERNATIONAL LAW CODIFIED
to request the co-operation of thought and action united for a
common purpose.
Proceeding along these lines, Internoscia has presented to the
public a complete code containing 5657 articles, the most exten-
sive code that has ever been written. For that reason, he declares
that two-thirds of it contains what is found in books on inter-
national law, and he does not cite any of the writers whose theories
he has accepted. In order, however, to prevent any criticism,
he announces that he will name the authors upon whom he has
drawn and whose works were published in French, English and
Italian.1
36. Without attempting to examine what the author planned
to do, we shall merely say that the whole work can be divided into
two parts. In the first part, which, as he states, represents two-
thirds of the book, he gives what is found in the works on interna-
tional law published during the last two or three generations; in
the second part, he endeavors to explain how the longing for uni-
versal peace can be realized.
Among the writers whose opinions the author has freely and
literally quoted, it must be stated that in public law he has text-
ually reproduced several of the rules codified by us; thus, for
example, articles 2, 3, 71, 72, 360, 368, 369, 371, 394, 1069, 1071,
1077, 1078, 1090, 1163, 1172, 1173, 1419, 1420, 1421, 1422, 1414,
1415, etc. of Internoscia correspond to the articles in Fiore (Diritto
internazionale codificato, 1909) numbered 40, note to rule 54, 389,
392, 983, 978, 963, 953, 275, 543, 545, 611, 613, 396, 643, 649-652,
653, 1175, 1176, 1178, 1179, 1182, 1185, etc.
In private international law, also, he sums up principles set
forth by us, as, for example, articles 1976, 1979, 1981, 1984, 1990,
etc., which correspond to articles 1044, 1048, 1053, 1057, etc., of
Fiore (Diritto internazionale privato, 1901, vol. III).
Desiring to express my opinion of Internoscia's work, I shall
merely say that the account he gives of the principles advocated
by writers for settling international questions constitutes the best
part of his work and testifies to the author's extensive study.
The means that he recommends for the abolition of war and for
providing all mankind with a legal organization, without making
1 Internoscia, New Code of International Law, First ed., 1910, Introduction,
pp. vi-ix
THE AMERICAN INSTITUTE OF INTERNATIONAL LAW
77
any allowance for the various gradations that exist between the
different states of the world, make his work a vain and useless
labor. For an equality of legal condition among the states of the
various regions of the world is not admissible unless the fact is
recognized that a difference exists between them, determined by
circumstances, culture and civilization,-circumstances which es-
pecially distinguish the actual condition in which the natives of
Asia and Africa are found, as compared to the civilized peoples
of the other parts of the world. Nor can the constitution of a Con-
gress be effectuated which would have the authority and the means
of subjecting all the inhabitants of the world to its high authority;
nor is it conceivable that it could have the authority to order the
use of coercive measures against whatsoever agglomeration of
peoples declined to accept its decisions.
The writer finally asserts that the said Congress may order the
dissolution of a state which does not submit to its authority and
that it may compel it to do so by force, using for this purpose the
coercive means of war.
Without going any further, our conclusion is that the writer,
for the purpose of furnishing a legal organization to the whole
international society, planned an unsound and unpracticable
undertaking.
CHAPTER V
PURPOSE OF THE PRESENT WORK-SOURCES OF THE
LEGAL RULES FORMULATED THEREIN—DIVISION
OF THE SUBJECT
37. Purpose of this treatise. 38. Explanation of its title. 39. Practical efficacy
of scientific law. 40. Sources of our codified rules. 41. Importance of
popular legal convictions. 42. Authors and historical law. 43. Divisions
of the present work.
37. From the ideas developed in the foregoing chapters, it
follows that international law constitutes a branch of the whole
sphere of law, still in its period of elaboration. Therefore, those
wishing to discuss it cannot confine themselves to a doctrinal ex-
position of the existing law, as in the case of civil and commercial
law and of other branches of positive law, composed of a collection
of codified laws. It has already been observed that the rules of
international law which at the present time have the authority
of positive law are few and are wanting in a true legal sanction.
The scholar is naturally obliged to consider the future as well as
the present, and must take reason and induction as a guide of his
observations in order to complete and perfect the existing law and
to prepare its progressive elaboration. The ultimate purpose, in
fact, is to bring about a systematic drafting of the body of rules
which ought to constitute the common law of civilized countries
and serve to bring to realization the legal organization of society.
Accordingly, we purpose to set forth international law, taking
into account the existing law and such rules as may be capable of
becoming law. In other words, we intend systematically to form-
ulate the body of rules which consist in part of those accepted by
states in general treaties, in their legislation or in diplomatic docu-
ments, and in part of those rules found either in the popular con-
victions which have manifested themselves in our time, or in the
common thought of scholars and the most learned jurists. As a
natural consequence, the rules systematically assembled in the
present volume represent in part present international law, and in
78
PURPOSE OF THE PRESENT WORK
79
1
part the international law of the future. As a whole, it comprises
the system which, in our opinion is calculated to endow interna-
tional society with a legal organization.
38. We are presenting this body of rules, based on historical,
scientific and rational law, under the title of International Law
Codified.
This very title indicates that it does not deal with a body of
legal rules having the same authority as those collected in a code
of positive law, for in that case the work would have been entitled
Code of International Law. On the contrary, it was our wish to
follow the example first given by the Genoese jurist Paroldo,
and at a later period, by Petrusheveez,2 Bluntschli,3 Field, 4 and
others, and we have purposed to set forth, in the form of a code, the
rules of international law, with a view, primarily, to present to the
public a system as methodical and complete as possible.
Neither should it be supposed that international law codified,
as we present it, is to be considered as a project of an international
code proposed to governments to be adopted by them in its en-
tirety. We are, nevertheless, convinced that sometime the inter-
national society will bring to realization Mirabeau's prophetic
phrase: “Le droit sera un jour le souverain du monde." But to
imagine that governments could all immediately agree upon a
complete and codified body of rules would be to hope for the reali-
zation of a fanciful and untimely enterprise.
It is our firm belief that, in the international society, force will
cease to exercise absolute preponderance, and will be replaced by
the authority of law. But we also believe that this end will be
better attained by proceeding cautiously and being guided by
favorable circumstances. It would be an exaggeration to conceive
the idea of codifying international law in its entirety. It will be
possible indeed to effectuate the codification of such matters on
which common legal convictions have been formed, and to wait
until civilization, progress and the community of commercial rela-
tions make possible the codification of new subjects of common
international interest. Every new step will be a conquest tending
1 Saggio di codificazione del Diritto internazionale.
2 Précis d'un code de droit international.
3 Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt, mit
Erläuterungen. Droit international codifié translated by Lardy.
* Outlines of an international code, 2d edition.
80
INTERNATIONAL LAW CODIFIED
to assure the sovereignty of law in the world; but it will be neces-
sary to wait until the precious fruit is ripe, and it will always be
necessary to proceed gradually.
Now that we have disposed of ambiguities and explained the title
given to this book, we may say that we have tried to explain in the
notes which rules have the authority of positive law and which the
force of scientific law. For it must be said that the rules evolved
by scholars cannot possibly have the same compulsory legal
force as those proclaimed by the authorities qualified to lay down
the positive rules of the relations existing amongst the subjects
belonging to international society. Such rules have, however, the
authority which must be assigned to the general principles of law
whenever no rule of positive law has been enunciated either by the
competent organs of the state or by plenipotentiaries in a treaty
and rendered compulsory amongst states by reciprocal consent.
Rules derived from the concurrence of opinion among the foremost
publicists on a particular principle acquire, therefore, an effective
authority, even with governments. For it cannot be denied that
when the most qualified publicists of different countries are in
accord upon proposing a legal rule, that circumstance must mili-
tate strongly in favor of the legitimacy of the principle. The re-
sult is that rules elaborated by jurists, though actually lacking the
force of positive law for want of governmental consent, have never-
theless a great value, since governments cannot fail to consider
them as the most exact expression of the legal sentiment of our
time, and cannot disregard their reciprocal obligation to apply
them in their mutual relations.1
39. We must note that the practical authority of scientific law
is greater in proportion as the domain of positive law is smaller.
Even when positive laws are codified, the legal principles derived
from scientific law exercise their authority whenever there is no
positive law to govern and the omission cannot be supplied by the
application of legal rules provided to govern similar or analogous
cases.
The legislators of all countries recognize that no system of
Solent autem gentium sentencia de eo quod inter illas justem esse debet triplici
modo manifestari, moribus scilicet et usu, pactio et fæderibus, et tacita appro-
batione juris regularum a prudentibus, ex ipsis rerum causis per interpretationem
et per rationem deductarum. Warkönig, Doctrina jurisphilosophica, No. 146.
PURPOSE OF THE PRESENT WORK
81
positive law can be so complete and perfect as to comprise all the
rules intended to apply to all cases and to settle all disputes.
They admit, therefore, that, all difficulties having to be settled by
judges, the latter, in the absence of a rule of law applicable to the
case submitted to them or of a rule covering similar or analogous
cases, must decide according to the principles of law. Now, it is
generally recognized that the general principles of law are indeed
those laid down by jurists who, at various periods, expound the
legal thought of their day on current matters and lay down rules
responding to the exigencies of real life.
Consequently, principles of scientific law always have their
practical authority and efficacy, even when positive and concrete
legal rules are codified, whenever a particular case cannot be de-
cided by applying the rules formulated by legislators. The practi-
cal value of such principles is always certain for the reason that a
judge can never refuse to pass upon a case under pretense of the
non-existence or insufficiency of the law, inasmuch as the state
imposes upon him the duty of deciding every case.
As a consequence, the authority of scientific law being greater
in proportion to the deficiencies of positive law, its authority in
international law must be very great, since positive law, so to
speak, is conspicuously absent.
40. We shall now indicate the sources from which we have drawn
our legal rules.
The main source is found in general conventions. These are
not very numerous, but their number is constantly increasing;
they constitute the best source of positive law because they
represent the uniform law accepted, by reciprocal agreement,
by the parties who have signed or given their adhesion to these
conventions.
We have, furthermore, ascribed great importance to the pro-
ceedings of congresses, and especially to the declarations of the
representatives of governments in the protocols relating to gen-
eral conventions, as such declarations must be considered as ex-
pressing the common views of the governments represented. Even
when certain rules have not the character of law and of positive
law by virtue of the consent of the governments represented, one
must, nevertheless, consider as very important the authority
arising from the accord existing in the wording of a draft agreement
82
INTERNATIONAL LAW CODIFIED
accepted by a large number of plenipotentiaries meeting to agree
upon questions of common law, although the draft itself is subject
to the approval of their respective governments. Even though the
rules so formulated assuredly cannot by that fact acquire legal
force, they must, nevertheless, have great authority as expressing
the views of the representatives of states upon rules which in
their opinion, ought to be adopted as law.
In this category fall, for example, the rules adopted at the Con-
ference of Brussels of August 27th, 1874, on the laws and usages
of war. The draft presented to that Conference, convened at the
suggestion of Russia, was drawn up after a long discussion, and
although not finally approved and made compulsory, it has,
nevertheless, a great value. For one cannot deny that, as govern-
ments saw the need of laying down in common accord concrete
and positive legal rules concerning their relations in time of war
in order to lessen so far as possible the injuries which war causes
to neutral states and to the non-combatant citizens of the belliger-
ent states, and as they had met in Conference for such a purpose, -
one must assign a considerable value to the rules adopted by the
plenipotentiaries in the form of a draft, subject to the final ap-
proval of their respective governments.
Particular treaties, that is, those concluded between two or more
states for the purpose of regulating their special interests, can be
considered as formulating legal rules binding only upon the states
concerned.
It must, however, be observed that so far as certain matters
are concerned, particular treaties may be considered as valuable
sources of legal rules for common international law, which may be
authoritative with respect to other states, although they may not
yet have received the general approval of those states, or been
accepted as rules of positive and concrete law through the recipro-
cal agreement of such states. This point must be explained. .
Special treaties may represent all the positive and binding rules
concluded between states entering into them, which rules must
be considered reciprocally binding by reason of their assent. It
must, however, be observed that, especially in the particular
treaties concluded since 1856 on matters of common interest, a
certain uniformity of principles is found. Now it seems to us that
such uniformity must have great authority in assigning to these
PURPOSE OF THE PRESENT WORK
83
principles the character of common law for all the states having the
same degree of civilization.
This may be said, for example, of certain uniform rules relating
to the rights of consuls, the extradition of offenders and the pro-
tection of trade or commercial marks. It cannot be contended
that the legal rules contained in the majority of particular treaties
have the force of positive law, not only between the parties which
have concluded them, but also with respect to others. Never-
theless, particular treaties may be considered a source of common
international law, for it seems to us that a uniformity in treaties
must be deemed an indirect recognition of the common law of
civilized states; and while, therefore, such uniform law, embodied
in particular treaties, has not, strictly speaking, the true authority
of common law, yet it represents what with little difficulty may
be said to be an approximation to a collective declaration on the
subjects under consideration.
We have also taken into account the municipal legislation of
civilized countries, because from it international law may be de-
duced, especially when it regulates international relations in a uni-
form manner. This point, indeed, must be clearly understood in
order to avoid ambiguities. The law proclaimed by a sovereign is
only binding on his subjects. Although a national legislature may
codify the principles of public or private international law, the
law thus promulgated retains none the less its proper character as
the municipal law of a particular state, or of civil law, in the sense
given to that word by Roman jurists, jus quod quisque populus ipse
sibi constituit et proprium ipsius civitatis est, quod vocatur JUS
CIVILE quia quasi jus proprium ipsius civitatis.
Thus, for example, in Italy, many rules of international law gov-
erning war are found in the field regulations of the Italian army.2
Other analogous provisions are found in Italy in the military
penal code and in the merchant marine code. The latter contains
a section relating to maritime law in time of war, in which the legit-
imate acts of war, the treatment of neutral ships and merchandise,
and the duties of neutrality are laid down and the articles consti-
tuting contraband of war enumerated.
In the legislation of other civilized countries, provisions are also
* L. 9, Dig., De justicia et jure, 1, i.
2 See these regulations, approved by royal decree of November 26, 1882.
1
84
INTERNATIONAL LAW CODIFIED
to be found regulating certain matters of international law. Thus,
in the United States, the Instructions for the Government of the
Armies in the Field, published in 1863, comprise a complete body
of international rules in time of war. We need not refer to the
special rules issued by France, and the regulations of Russia.
Attention must again be called to the fact that the municipal
laws of the different states cannot have any force beyond their own
territory and their own citizens. It must be said, however, that,
just as the concurrence of jurists contributes to give authoritative
weight to the principles they recognize, so the concurrence of a
great many legislatures with regard to certain rules of international
law contributes largely to impose such rules upon the civilized world.
In order to make this proposition clear, we may recall the uni-
formity of the municipal legislation of civilized states concerning
the legal status of foreigners and the acquirement of civil rights
properly so called, namely, the inviolability of personal property,
right of choosing one's nationality and of expatriation without the
previous consent of the government.
We have also considered as a source of the rules of international
law, the acts of governments in their diplomatic relations. Al-
though it is quite evident that, strictly speaking, the unquestioned
and unreserved acceptance by governments of certain principles
of international law, solemnly proclaimed in diplomatic acts, can-
not accord to these principles the authority of positive law, never-
theless the enunciation of these principles by one nation and their
tacit acceptance by another must give them great authority in
both countries.
This is true especially with regard to the principles involved in the
Roman question, explained in a circular communication of the
Italian government in 1870 after the annexation by Italy of the
Papal States. In that note the right of the Romans was proclaimed
to avail themselves of their natural liberty to join the Kingdom of
Italy, and the respect due to their will solemnly expressed by a
plebiscite.
This principle having been generally accepted must be deemed
a rule of international law. One must accordingly exclude as
contrary to modern public law the inaccurate principle advanced
by the partisans of the Papacy that, in order to protect the pre-
tended interests of that institution, the Pope should have been left
PURPOSE OF THE PRESENT WORK
*85
to his temporal domain, and, contrary to common law, all political
liberty have been refused to the Romans.
This must also be said of the affirmation of the principles made
successively by the French and Italian governments in the matter
of the abolition of extra-territorial rights at Massouah and Tunis.
We have likewise stated the importance of the custom by which,
as a consequence of tacit consent, the reciprocal and uniform ob-
servance of the same rule of law gives it the same authority as a
rule established by express consent.
In all periods custom has been considered as one of the factors
of positive law. In the absence of a positive and concrete rule in a
matter of law, it has been considered reasonable that the matter
be governed by the rule derived from common practice. This
principle has been set forth by Albericus Gentilis in his renowned
work on the law of war, in which, studying the sources from which
to derive the rules of justice to be observed during hostilities, he
said: “Though one ought not to judge according to precedent,
conformably to a very wise law of Justinian, nevertheless it is a
fact that precedents open the way to probable conclusions and that
when in doubt, precedents and custom ought to furnish a guide.
It is certainly not expedient to change what has become certain
and constant by continuous observance.
Grotius has likewise held that custom among states ought
to be considered as law. "Non negamus, says he, more vim pacti
accipere.”
41. We have, besides, attributed great importance to legal con-
victions which, owing to the constant progress of civilization, have
progressively taken form and developed within the conscience of
civilized peoples.
It is a fact which no one would deny that the community of
interests among the inhabitants of the different countries, which
has resulted from the development of international trade and
civilization, and the community of their ideas as to the conditions
required for the legal organization of international society, have
caused the formation in all civilized countries of certain uniform
convictions as regards the legal rules applicable to international
11
1 Albericus Gentilis, De jure belli, chap. I, Book I, no. 6, translated into
Italian by Fiorini.
2 Lib. II, cap. V, no. 24.
86
INTERNATIONAL LAW CODIFIED
society. These convictions no doubt, are neither proclaimed nor
established through an agency qualified to formulate them; but
they assert themselves under the form of a popular sentiment
which expresses the public conscience, which comprises and claims
the observance of certain principles indispensable for the common
life of nations and for the protection of everyone's rights in in-
ternational society.
These principles have not been solemnly sanctioned like those
recognized by governments in treaties or enunciated by them in
diplomatic acts. Nevertheless, they exercise a great authority,
having its origin in the mysterious and unquestionable force of
public opinion which compels governments to observe principles
of justice in exact conformity with historical and moral require-
ments and which is inspired by reason and universal conscience.
In order to be convinced of this fact, it is merely necessary to
read the history of diplomacy and to take account of the acceptance
by governments of certain principles which have been dictated by
public opinion, and to refer to Chapter I of the present work. We
shall here merely reiterate that popular legal convictions ought to
be the most certain source of international law. We have taken it
into very considerable account, because the rules which are in the
common conscience of nations in intercourse with one another must
be considered as the most exact expression of certain moral needs
and of the principles of social justice which have developed with
the progress of civilization.
Publicists engaged in determining the legal rules of international
relations should therefore direct their special attention toward the
general popular feeling concerning these relations, a feeling which
reflects public opinion. Public opinion is formed through the
communications maintained by the press and telegraph between
the inhabitants of the various parts of the world. It is the final
result of the development of uniform thoughts and sentiments on
every event which takes place in both hemispheres, on recipro-
cal needs and interests and on the common requirements of the
international relations of states. Public opinion does not now ex-
ercise its full influence on international life, because it has not yet
acquired its full force and is not yet properly represented. But we
feel sure that in time it will become the most fruitful source of legal
rules, which will have to be admitted by governments in the con-
PURPOSE OF THE PRESENT WORK
87
1
3
duct of international relations. In proportion as public opinion
becomes enlightened, more developed and united, it will acquire
greater authority.
42. The most important source of the subject-matter of the body
of rules we have systematically collected in this volume, lies in the
uniform views of the best qualified authors on the legal rules of
international relations in keeping with the present and positive
needs of international society. We have laid under contribution
the works of all the jurists who have studied international law,
and we could not truthfully state which have contributed the most
to formulate our convictions.
We have especially studied the works of Phillimore,Calvo,
Heffter, 4 Wheaton, Pradier-Fodéré, Lawrence,” Bluntschli, Field,
Woolsey, 10 Halleck, 11 Hall,12 Rivier, 13 and Oppenheim. 14
1 We have always considered public opinion, developed and enlightened by
civilization, as the principal factor in the reform of international law.
On page 347 of our work published in 1865, we' said: “We believe that,
without creating an armed tribunal, the most effective guaranty must be
public opinion; it must be, in our judgment, the aegis and guaranty of right,
it is the best and most impartial of courts. We do not advocate material con-
straint among nations, but moral constraint, and the latter we cannot conceive
otherwise than in the mysterious power of public opinion, a power, however,
undervalued because it has not yet shown its full force, but which will prove
itself strong and all-powerful when it becomes fully conscious of its rights.”
Proceeding with our argument to oppose the idea of a proposed confedera-
tion, we concluded by extolling the power of public opinion, expressing the
idea as follows: "Just as the principles of justice which regulate the relations
of persons in private society, when made clear to social conscience and to
public opinion govern civil societies, so the principles of justice which must
regulate international relations once they are clear to national consciences
and public opinion, will regulate and govern international society.”
2 International Law, 2d ed., 1874.
3 Le droit international théorique et pratique, 1872.
4 Das europäische Völkerrecht der Gegenwart, translated by Bergson, 1873.
5 Elements of international law, New York, 1836. Droit des gens mis au cola
rant des progrès du droit public moderne, trans. by Pradier-Fodéré, 1863.
6 Traité de droit international public européen et américain, 1885–1894.
? Commentaire sur les éléments du droit international et sur l'histoire des progrès
du droit des gens, de Wheaton, Leipzig, 1868-1873.
8 Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt mit
Erläuterungen, translated by Lardy.
9 Outlines of an international code, New York, 1876.
10 Introduction to the study of international law, New York, 1875.
11 International law, San Francisco, 1861.
12 International law, Oxford, 2d ed., 1886.
13 Principes du droit des gens, 1896.
14 International law, v. 2, 2d ed.
88
INTERNATIONAL LAW CODIFIED
We have given to legal history a limited space. We cannot, in-
deed, draw much from that source, for legal history has often repre-
sented occurrences which were due to the abnormal conditions in
which international society was placed as a result of the tyrannical
preponderance of politics, and at times has been the accepted result
arising from necessities of fact at a critical period in the life of
peoples.
As our purpose has been to frame a system of rules designed to
eliminate all arbitrariness and to give a legal organization to the
society of states, it was essential not to consider legal history as a
trustworthy source. In fact, in the history of international re-
lations, many principles are accepted which are opposed to ra-
tional law, and not only is it useless to translate the fact into law,
but it is well always to bear in mind the rule of the Roman jurist
Paul: "Quod vero contra rationem juris receptum est non est produ-
cendum ad consequentiam." I
43. For the division of the subject matter of this work, we have
been guided by the following principles:
In order to proceed systematically, it was necessary in the first
place to determine in a general way the concept of the law which
must govern any kind of relation which may arise and develop in
international society, and to fix that law; to establish the basis of
its authority; to distinguish the various forms this law may assume;
to establish the limit and extent of its domain; and to state pre-
cisely its legal protection. These matters are the aim of the rules
collected in the preliminary part under the title of Fundamental
Principles.
Having determined and specified the concept of international
law, we have divided the remainder of the work into four books, as
follows:
Book One:-Persons and things subject to international law.
Book Two: International obligations.
Book Three:-Property as an object of international law.
Book Four:-Sanctions of international law.
In Book one, it has been our purpose to determine who or what
must be considered subject to the authority of international law,
the subjectum juris. We have determined the concept of the person
and specified what must be considered as a person. Yet, as there
1 L. 48, Dig., De Legibus, I. 3.
PURPOSE OF THE PRESENT WORK
89
are in international society besides persons properly so called,
entities which, while unable to assume the condition of interna-
tional persons, must nevertheless, in their relations and actions, be
subject to the rules of law which must govern international so-
ciety, we have sought to determine their rights and the legal rules
governing them.
Inasmuch as the theory of rights must always be complemented
by the theory of duties, we have, after having determined the rights
of the state and pointed out the rules which should govern the
acquisition and exercise of these rights, sought to establish the
duties of states in their reciprocal relations.
The same principle has been followed with regard to the indi-
vidual and the Church, whose rights and duties we have de-
fined, and the means of whose legal protection we have es-
tablished.
Book two refers to international obligations, which arise princi-
pally from treaties. Consequently, this book is mainly composed
of matters relating to general and special treaties. In it we have
also laid down the rules which apply to obligations arising in the
absence of agreement.
Book three refers to things and property in their relations with
international law. In it we deal with common and public things,
territory, state property and private property.
Book four comprises the fundamental principles which must
govern the enunciation and legal protection of international law.
As regards such protection, we set forth the principles applicable
to the settlement of disputes between states and to the prevention
of such disputes and in addition, we point out the coercive meas-
ures legitimate in time of peace to restore to violated law its
authority.
Finally, we treat of war as an extreme measure of legal protec-
tion and we lay down the rules regarding its lawfulness, the rights
and duties arising out of it for belligerents and neutrals, and we dis-
cuss the exercise of the rights of war and the proper methods of
settling the difficulties which may arise out of the exercise of these
rights.
90
INTERNATIONAL LAW CODIFIED
FUNDAMENTAL PRINCIPLES
INTERNATIONAL LAW AS A SCIENCE
1. International law is a body of rules designed to determine,
govern and protect the rights and duties of states, and the rights
and duties of individuals and juristic persons in their relations
with states, and among themselves whenever these relations af-
fect or are likely to affect the international society.
International law, in its exact literal sense, would signify the law which con-
cerns the relations between two or more nations. Thus, the term does not
quite correspond with the idea it is designed to convey. The expression Inter-
state law could not, however, be substituted for it, as it would only indicate
the law concerning the relations between two or more states; neither would the
expressions Law of Nations, Law of Humanity or Public External law be ac-
ceptable. The most appropriate name for such a law would be the Law of
Mankind, which is the collective term, comprising all beings united with one
another by a common bond and constituting mankind. We prefer, neverthe-
less, to accept the term international law sanctioned by tradition.
2. International law may be viewed either as rational or
positive.
RATIONAL LAW
3. Rational international law is the body of legal rules which
the human mind perceives, infers or deduces from the principles
of natural justice so far as they govern the relations existing be-
tween the persons and beings existing in the Magna civitas, taking
into account their condition and status and their historical and
moral exigencies.
The principles of natural justice exist in the conscience of the people and
develop gradually with civilization. Reason understands and conceives them
as the rules of the harmonious development of each relation, taking into ac-
count the nature of the relation itself and the historical and moral exigencies
of those to whom it must be applied. Positive law commenced to exist as a
rational precept or principle of natural justice before assuming the form of
law.
The same was true of international law. The rational principles governing
international society, before they became legal rules and were accepted by
states as rules of positive law, followed the law of gradual development and
evolution. Governments have not, as a matter of fact, wholly ignored the
binding force of the principles of the rational law of nations.
In 1753, the British Government in an answer to a note of the Prussian
FUNDAMENTAL PRINCIPLES
91
Government, said: “The law of nations is founded upon justice, equity, con-
venience, and the reason of the thing, and confirmed by long usage.” Philli-
more, v. I, chap. III, § 20. See the note of Great Britain to Russia in 1780
and the circular note of the Russian government to the allied Powers in Fiore's
Diritto internazionale pubblico, v. I, 4th ed., $ 179. Cf. Bluntschli, Le Droit
international codifié, Introduction and rule 3; Calvo, Droit international, v. I,
Principes; Renault, Introduction à l'étude du droit international, $$ 1-19.
Wheaton, International law, chap. I, § 11, defines international law as
consisting of "those rules of conduct which reason deduces as consonant to
justice from the nature of the society existing among independent nations;
with such definitions and modifications as may be established by general
consent.”
If the precepts of natural justice were not to exercise any authority over
the conduct of states, 'it would result rather absurdly in excluding the legal
community uniting them in cases where the rules of their conduct are not
fixed by treaty.
4. Any rule will be considered as conforming with the principles
of rational law which is admitted by philosophers, scientists,
publicists, statesmen or by governments in their diplomatic acts,
and especially those concerning which popular legal convictions
have been formed.
The basis of this rule is the idea expressed by Albericus Gentilis, that true
philosophers and scientists are accustomed to reason according to natural law
(De jure belli, lib. I, cap. I, $ 5). That rule was later accepted in a broader
sense by Grotius, who based the rules of the law of nations on the universal
agreement of philosophers, historians, poets and orators.
Vico considered popular legal convictions as the principal source of the
law of nations. He said in effect: “As a result of the union of several nations
of different language in common thought, by reason of wars, alliances or trade,
the natural law of mankind is the outgrowth of uniform ideas among all nations
on the needs and utility of each of them.” See his pamphlet entitled Principii
di una scienza nuova intorno alla natura delle nazioni, per le quali si ritrovano
altri principii del diritto naturale delle genti (Edition of 12 folios printed at
Naples by Felice Mosca in 1725).
POSITIVE LAW
5. Positive international law is the law expressly established
by the common will of states entering into certain relations, these
states having agreed, expressly or tacitly, to subject these relations
to certain legal rules which have been duly ratified in accordance
with municipal constitutional law
6. The law established by custom, resulting from the constant
and unequivocal observance by two or more states of a certain
92
INTERNATIONAL LAW CODIFIED
rule concerning matters of common interest, constitutes a part of
positive law.
7. A rule established by a state by unilateral act, which relates
to questions of international interest, must in like manner be
considered as a rule of positive international law. Cf. rule 30.
Any state may lay down by unilateral act certain rules of international law,
which have authority as municipal law and an imperative value so long as they
are in force. These rules constitute part of positive international law, since
80 long as they are not legally abrogated, they must be applied in the cases
they contemplate. The sovereign state which enacted them is always at
liberty, however, to abrogate them.
There are numerous examples of rules of positive international law estab-
lished by unilateral act.
Some of the rules appearing in the draft of the laws of war proposed by the
Conference of Brussels have been accepted by various states by unilateral act,
that is to say, by the service regulations in time of war binding upon their own
armies.
The inviolability of private property during maritime war is recognized,
subject to reciprocity, by the Italian law in article 211 of the Code of the mer-
chant marine, which reads as follows: “The capture and seizure of merchant
ships of a hostile nation by the war vessels of the state shall be abolished,
subject to reciprocity, by the enemy nation, to the national merchant marine."
8. International positive law is divided into common and particu-
lar or special law.
COMMON POSITIVE LAW
9. Common positive law consists of the legal rules solemnly
formulated by the states assembled in congress or conference by
means of general treaties, by which they have expressly agreed to
consider the rules established as the law governing certain specific
relations and matters, provided, however, that the treaties in
question are duly ratified.
States cannot be subject to any one exercising over them the authority of a
legislator. The principle of legal equality is absolutely opposed to the doctrine
that any one of them may dictate the law to the others. Therefore, it is for
the states to formulate and fix in common accord, the rules governing their
reciprocal relations and to recognize the binding force of these rules, which
acquire the authority of law for the ratifying states by virtue of the consensus
gentium. The common international law consecrated by general treaties con-
cluded by a considerable number of states is constantly growing.
We may mention among others the international convention for the protec-
tion of industrial property of March 20, 1883; the treaty for the development
of commerce and civilization in Africa, of February 26, 1885; the convention
FUNDAMENTAL PRINCIPLES
93
for the protection of literary and artistic property, of September 9, 1887;
the
convention for the free navigation of the Suez Canal, of October 29, 1888; the
general anti-slavery act of July 2, 1890; and the regulations to avoid collisions
at sea, of December 13, 1896. We shall refrain from citing other conventions
relating to transportation by rail, health regulations, and land and naval
warfare. (First Hague Conference of 1899.)
10. The rules of common law established by means of trea-
ties have the force of law for the signatory and adhering states
from the date of ratification and adhesion respectively.
PARTICULAR POSITIVE LAW
11. Particular positive law is the body of rules established be-
tween two or more states by a treaty concluded and ratified on
matters of their own particular interest. The same effect may be
attained through the constant and reciprocal observance of a
certain legal rule.
RULES ACCORDING TO THE “COMITAS GENTIUM”
12. A rule may be considered as based on the comitas gentium,
if it cannot be considered as established in accordance with pos-
itive international law, or based on the principles of natural or
rational justice, but is founded on certain usages conforming with
the reciprocal convenience of states and on their friendly relations,
when these usages are not in conflict with positive international
law.
The rules of the comitas gentium are the only ones which must be considered
as based on international courtesy. They tend to strengthen the relations of
friendship and good will and are inspired by practical utility and political
considerations. Such are, for instance, the rules observed on the occasion of
the visit of sovereigns and reception of diplomatic agents. The same is true
of the usages established in consequence of civilization. The observance of
the rules of comitas gentium may be considered as a moral duty among states.
These rules, however, are different from those which may be considered as
based on moral precepts.
13. Any state which, ob comitatem, has voluntarily observed
certain rules of conduct towards another state, may request the
latter to put in practice the rule of reciprocity under the same
circumstances, but cannot lay claim to a perfect right in that
respect.
94
INTERNATIONAL LAW CODIFIED
RULES BASED ON MORAL PRECEPTS
14. The observance of every provision which may be considered
as based upon moral law may be deemed obligatory upon states,
but the execution of these provisions must be considered as a moral
obligation.
15. States should be disposed to assist one another; to act
reciprocally with kindness; to co-operate in the protection of gen-
eral interests whenever it can be done without causing any direct
or indirect injury to national prosperity.
16. It is the duty of civilized states to spread civilization among
barbarous and uncivilized peoples by every lawful means, but
without violating the rules of international law.
These rules tend to establish the authority of moral law in the relations of
international life. We believe that the precept of Ulpian, honeste vivere, which
indicates morality as the supreme principle of life and tends to bring to realiza-
tion the most perfect development of every activity, should be applied among
states as well as among individuals. We recognize, however, that it will be
many years before the international life of states achieves that desirable result.
So long as utility and egoistic interest prevail in international politics, and
every noble sentiment of humanity is subordinated to these motives, it will
be very difficult to bring about the reign of moral principles.
Nevertheless, the countries enjoying the advantages of a superior civiliza-
tion do not wholly disregard the authority of moral precepts. The measures
already adopted toward the abolition of slavery, the repression of the slave
trade, the civilization of Africa, the assistance and care of the wounded in
time of war, the prevention of contagious diseases, are consequences of the
realization of the moral duties which have inspired them, so as gradually to
transform these duties into legal obligations. The domain of moral duties
will always be more extensive than that of legal duties; for, as Bentham has
said, law will always have the same center as morals, but can never have the
same circumference (Traité de législation civile et pénale, v. I, ch. XII, p. 93).
Hence it follows that there will always exist among states, in addition to legal
duties, moral duties. Non omne quod licet honestum est. It will be for civiliza-
tion to make evident the precepts of international morals and for the most
progressive states to recognize their binding force. Cf. the rules of title IX,
book I.
1
BINDING FORCE OF RATIONAL LAW
17. The rules of rational law have the same binding force as the
principles of rational justice.
18. Any state which intends not to disregard the imperative
force of the precepts of rational justice, must be considered as
bound to observe them in its relations with other states.
FUNDAMENTAL PRINCIPLES
95
19. Above all, it is incumbent on a civilized state always to con-
sider as binding, in regard to any fact or relation affecting interna-
tional society, the rule most conformable to the rational principles
of international law, with due regard to the circumstances, which
must be carefully ascertained and considered.
The two preceding rules are designed to eliminate the erroneous idea that
whatever cannot be considered as established by solemn agreements con-
tracted by states, under the stipulations of treaties or otherwise, may be
deemed within the domain of their freedom of action, and that, consequently,
any one may or may not comply with the rules of justice, and that the spon-
taneous observance of such rules must be considered as an act of courtesy, ob
comitatem.
Certain authors have based upon this inaccurate notion the contention that,
in the absence of a general or special treaty, which is no doubt the most perfect
legal title from which to derive the reciprocal legal right and duty to require
the observance of stipulated rules, each state may or may not, as it chooses,
respect international law, and that the respect of that law must be considered
as suggested by the comitas gentium.
See, to that effect, Foelix, Traité de droit international privé, chap. III, nos.
9, 11, v. I; Travers Twiss, The law of nations, Part I, chap. I, § 13.
We believe that among states, the perfect duty is that which corresponds
to the right of one state to require the other to give, to do or to perform that
which it has agreed to give, do or perform. Nevertheless, we cannot admit
that, in the absence of the perfect obligation arising from treaties, everything
may be considered as within the domain of liberty of action, and that respect
for the precepts of rational justice may not be obligatory, but optional, and
constitutes an act of mere courtesy. We believe, on the contrary, that it is
incumbent on states to acknowledge the requirements of rational justice, and
that the observance of these principles, far from being an act of courtesy, is
the performance of a natural duty. These principles have in some degree been
recognized by the five great European Powers at the Congress of Aix-la-
Chapelle, in the declaration of November 15, 1818, which reads: "The sover-
eigns, in forming this august union, have considered as a fundamental basis
their invariable resolution never to depart, either among themselves or in
their relations with other states, from the most rigid observance of the prin-
ciples of the law of nations, principles which, being applied to a permanent
state of peace, can alone guarantee effectively the independence of each
government and the stability of the general association."
RATIFICATION
20. Ratification is the approval or confirmation of what has
been done or promised, executed in an authentic and official man-
ner by the government of each country, according to the constitu-
tion. It is required for international acts and treaties.
21. The right to ratify, in monarchies, resides in the ruler,
either alone or with the concurrence of delegates from the national
96
INTERNATIONAL LAW CODIFIED
representative assemblies; in republics, it resides in the chief
executive, with the direct or indirect concurrence of one of the
great branches of the government, determined by the constitution.
22. Ratification must relate, as a rule, to the act as a whole as
drawn up and signed by the states' plenipotentiaries and cannot
contain any reservation. It must be made by each of the con-
tracting parties and must reproduce, word for word, the act which
it is intended to ratify. The parties, however, may follow by
common agreement a different course. Each may limit itself to
transcribing the title, the preamble, the first and the last articles
of the treaty, the date of the signature and the names of the signa-
tory plenipotentiaries, affixing the ratification, however, without
reservation.
23. The ratification, signed by the persons necessary for its
validity, is effective only when the exchange takes place between
the contracting parties. Such exchange does not require sovereign
full powers; it may be entrusted to a delegate of each of the govern-
ments concerned or to the diplomatic agent accredited to the
country. It is only after such formal act has been complied with
and duly recorded, that the treaty becomes fully operative and
that the term assigned for its duration commences.
24. Refusal to ratify on the part of one of the contracting par-
ties implies, per se, with respect to such party, the annulment of
the treaty signed by its representative.
BINDING FORCE OF POSITIVE LAW
25. The rules of positive common law established by general
treaty have the authority of law for the states which signed and
ratified them, as well as for states legally adhering thereto.
26. None of the parties which have signed and ratified a general
treaty may avoid the obligation to observe the rules therein sanc-
tioned, nor at will modify its scope, as no modification is valid
except by consent of all the contracting parties.
This maxim is based on the idea that the solemn recognition of a legal rule by
civilized states, which have established it by common agreement and recorded
it later in a protocol or treaty subscribed and ratified by them, or to which
they subsequently adhered, must clothe such rule with the authority of law,
and place it under the protection of the states which have proclaimed and
ratified it. A state which, after having recognized the authority of a certain
FUNDAMENTAL PRINCIPLES
97
law, afterwards ceases to observe it with regard to any one of the signatory
states, not only infringes upon the right of the state to whose detriment the
violation has occurred, but is contrary to the right of all the signatory parties,
because the obligation to respect a certain rule must be considered as having
been undertaken toward all the contracting parties.
The aforesaid maxim on the obligatory force of general treaties was formu-
lated in the declaration made by the delegates to the London Conference of
January 17, 1871.
See also the rules on the legal protection of "common” law, rule 47 et seq.;
the speech of Cobden, v. II, p. 300, and Fiore, Dir. internazionale pubblico,
v. 1, 4th ed., $$ 570–72.
27. The rules of positive law established in a treaty must be
deemed obligatory upon the parties ratifying or adhering to it,
until the treaty is solemnly abrogated.
If, however, in the treaty proper, it is expressly stipulated that
each party has the power, on its own part, to release itself from
the binding force of the treaty by a declaration duly notified to the
other parties, its binding force would cease for the declaring state
from the day such declaration was duly and legally notified.
28. The rules of particular positive law shall be binding between
the states which subscribe and ratify the treaty, so long as the
treaty shall be deemed in force.
29. The rules of positive law established by custom shall con-
tinue in force so long as a contrary custom is not proved.
30. The rules of international law laid down by a state by uni-
lateral act shall be binding until legally repealed.
The rules of international law established by unilateral act have to a large
extent the same character as those established by a municipal law. Hence the
state which, through its constituted powers, has legally proclaimed those
rules, must be considered as bound toward the other states; that is, it must
see that they are impartially observed so long as they have not been legally
repealed.
Any state may assume an international obligation through unilateral act
(law, manifesto, diplomatic note and similar acts) and although it cannot exact
reciprocal treatment from the other states, yet it must consider itself as bound
toward them by its own action.
A striking example of this is found in the Italian law relating to the preroga-
tives of the Pope and of the Holy See, promulgated May 13, 1871. Italy pro-
claimed thereby the rights of the Pope and sought to assure his independence
as head of the Catholic Church. We cannot share the opinion which considers
that law as having established a kind of international servitude in the sense
that Italy, which had assumed the obligation on the one hand, having thus
provided for the independence of the Pope, and the other states which have the
right to protect the interests of their Catholic subjects having accepted the
law without protest or reservation on the other hand, Italy thereby undertook
98
INTERNATIONAL LAW CODIFIED
a tacit international obligation to maintain the law regarding the prerogatives
of the Pope.
We consider this law in fact as a municipal law which, as such, may be freely
modified by the Italian legislature, without possible control by any other
states. We recognize the fact, however, that political wisdom and foresight
should always restrain the Italian government from interfering with that law.
While it is true that, when promulgated, all governments recognized it as de-
signed to assure the independence and liberty of the Pope, it is not certain that
it would be so recognized if amended or repealed. Undoubtedly, the other
states could not impair the legislative autonomy of the Italian government, but
unquestionably, just as they have the right to protect the legitimate interests
of their Catholic citizens, and, consequently, the free constitution of the
Church to which the latter belong, so they could criticize the new law as not
assuring complete independence to the supreme head of the Catholics.
We do not think it necessary to dwell longer on this question, for it does
not scem probable that Italy will be so imprudent as to modify the law under
consideration. Therefore, considering the actual condition of affairs, it must
be admitted that Italy has, by virtue of that law, assumed the international
obligation to observe it and to see that it is observed as long as it is in force,
and that she would incur an international responsibility in case of its arbitrary
violation.
Another example is found in the army regulations in time of war, in which
Italy has, by unilateral act, established the rules of international law to be
observed by the Italian army during the war. So long as these regulations
remain in force they will be internationally binding, and the responsibility for
their non-observance will naturally fall on the Italian government.
31. Rules of international law based on the comitas gentium have
no binding force; no state can compel another to comply with
them, nor consider their non-observance as an unfriendly act.
Retorsion may, however, be considered legitimate.
APPLICATION OF INTERNATIONAL LAW
32. The rules of international law must in principle be applied
by assigning to them the meaning deduced from the proper accep-
tation of the words according to their context and to the clear and
evident intention of the parties.
33. No state may claim that the rules of international law should
be so applied as to better its condition to the detriment of others.
34. The state which, in asserting its rights, has insisted that the
rules of international law should be applied, cannot afterwards
request that the rules so invoked shall not be applied, so far as it
is concerned, in its disputes with other states, in the manner it
bas itself established.
FUNDAMENTAL PRINCIPLES
99
The basis of this rule is the precept of Roman law, quod quisque juris in
alterum statuerit, ipse eodem jure utatur (L. I, § I, Dig. II, 2). A state which
has obtained a decision by invoking the application of a rule of law in its
favor, must allow such rule to be applied in the same way against it.
Compare the law I, § 1, Dig., Quod quisque juris, with the arguments of the
law 5, Cod., De obligationibus quod semel placuit amplius displicere nequit.
35. A state may demand that the rules of international law be so
applied as to favor it when they do not injure others.
This rule is based on the adage: quod tibi non nocet, alteri vero prodest, non
est ,denegandum.
36. The rules of positive international law must be applied in
such a way as to insure not only the fulfillment of their purpose,
but of that which, in the very nature of things, must be considered
necessary to legitimately attain that object.
This rule is based on the precept of Roman law: qui voluit finem et ea voluisse
creditur quæ ad illud honeste consequendum sunt necessaria.
37. In applying the rules of international law, the good faith of
those who established them should always be presumed, and it
should be conceded that none of the parties intends to transfer to
another more than it may own according to common law and the
nature of things.
38. The rules of positive law may be applied to facts and rela-
tions of the same nature, and to similar cases and analogous ob-
jects.
INTERPRETATION
39. Rules of positive law should not be interpreted according
to the literal meaning of the words, but according to the intention
of the parties which have formulated them.
40. In the interpretation of the rules of positive law, that which
leads to a useful result and excludes the useless should be pre-
ferred.
41. The rules of positive law should be interpreted in such a way
as to best insure the respect of the rational principles of interna-
tional law and to exclude the patent violation of such principles.
42. Rules implying a restriction of the free exercise of the
natural rights of states or admitting of a derogation from the rules
of common law, should be interpreted restrictively, without being
100
INTERNATIONAL LAW CODIFIED
extended beyond the cases indicated and the periods of time
stated.
SCOPE OF INTERNATIONAL LAW
1
43. International law must be considered as the common law
of mankind and should be respected and applied with a view to
bringing about the legal organization of society.
Mankind is the collective term including and comprising all beings taken
individually or collectively, living in the society of societies known as humanity.
No human being, whether he be an individual like man or a legal entity or
group (that is to say, one arising from the co-existence of a large or small
number of men united by a common cause or purpose or by local contiguity)
can be regarded as outside the legal community, which is based on human
nature and should comprise all beings included in the term humanity.
States having active relations with one another, primarily feel the need of
establishing a legal community. Nevertheless, such community should also
include the groups of men, whatever the cause and object of their association,
in so far as this may affect the legal organization of the society of societies,
namely, humanity. Civilization and commerce constantly tend to bring the
inhabitants of the different parts of the world into relations with one another
and to insure to all men the respect of those rights which belong to human
beings as such. The ultimate purpose of international law should be to estab-
lish a legal regulation of every kind of activity which may concern mankind.
44. Any state which enters into relations with other states is
bound to recognize in its actual relations with them, the impera-
tive force of international law, and to consider that law as the com-
mon law of the Magna civitas.
45. International law should be applied to every state, without
regard to its political constitution and religious faith; to every man,
whatever his race and color; to every group of men in whatever
country they live; to every relation which happens to arise in
any part of the world, whenever by reason of its nature or develop-
ment that relation affects or may affect international society.
Formerly, the effect of religion was to establish a difference of legal status,
so that the international law of Christian states differed materially from
that of infidels. The Congress of Westphalia dispelled the erroneous idea
that religion could constitute the basis of a difference of legal conditions.
From that time, the principle of the legal community was admitted among
Christian states having different religions. Later, it was thought that inter-
national law should be considered as the law of civilized countries only, and
it was called European international law. At the present day, no state of
Africa, Asia or other parts of the world is excluded from the legal community.
Accordingly, except for certain limitations admitted in its application by
reason of the historic and moral conditions of the peoples to whom it is applied,
FUNDAMENTAL PRINCIPLES
101
international law has extended its dominion over all the inhabitants of the
world and has acquired its true character as the law of mankind.
All those constituting part of the Magna Civitas and among whom certain
relations exist should be subject to the authority of international law, which is
the common law of the Magna Civitas, since that law must govern intercourse
among all divisions of peoples, and provide for the legal organization of the
society which comprises mankind as a whole.
1
46. The imperative force of international law, based on perfect
equality, should be considered as in fact limited to the states
among which, by reason of their civilization, there should be de-
veloped the fundamental legal principles indispensable to the ad-
mission of the community of law among them.
47. A state which, owing to lack of civilization or traditional
prejudices based upon religion, customs, political institutions, or
other cause, is actually unable to guarantee the respect and ob-
servance of international law, cannot demand its application with
perfect equality so long as it is not internally so organized as to be,
in a measure, on the same footing with other states.
It is an undeniable fact that the various countries of the world differ greatly
according to their degree of civilization. This explains the non-existence of
the de facto condition indispensable to a complete legal community among all
the peoples which make up mankind. In our opinion, such a community will
never be brought to realization equally and uniformly with all states, because
it will never be possible for civilization to extend uniformly over all parts of the
world. History shows us that civilization describes parabolas, as our eminent
countryman, Vico, tells us in his profound studies on civilization. Thus, it
follows that the legal community may in fact be considered as complete in
countries endowed with a certain degree of culture, whereas it must indeed be
limited in other countries whose civilization is as yet inferior. However, just
as the basis of the reciprocal moral and commercial needs of peoples enlarges,
so does the domain of international law gradually widen.
48. It is incumbent upon civilized states to promote the gradual
development of international law in all parts of the world so that
it will govern the relations which may be established between
civilized and uncivilized peoples.
LEGAL PROTECTION OF INTERNATIONAL LAW
49. States living in a de facto society 'must insure the respect
of international law and restore its authority in case of arbitrary
violation by means of appropriate and reciprocally binding in-
stitutions and legal measures, in order to avoid war.
1
102
INTERNATIONAL LAW CODIFIED
50. The institutions and legal measures established by common
agreement with a view to insuring the authority of international
law must be considered as under the collective legal protection
of the states which established them.
Since, notwithstanding the non-existence of a legitimate superior among
states, it is urgently necessary that the legal organization established by agree-
ment be maintained in its integrity and be not violated with impunity by any
of them, it must be admitted in principle, we believe, that all the states which
have established a certain legal organization should be considered as jointly
and severally interested in protecting it by all legal means. Therein lies the
justification of the right of collective legal protection. Whenever a state
violates the rules of international law in its relations with another state, the
immediate damage arising from the arbitrary act not only violates the right
of the injured state, but also that of all the states jointly and severally inter-
ested in the legal organization of international society. That is why the states
should be given the right to restore the authority of the common law.
At the Hague Conference, certain useful institutions were created to remove
many causes of war, and on that matter we expressed our opinion in the
Appendix to volume one of our Diritto internazionale pubblico, 4th ed. (Union
Tipografica-Editrice, Turin, 1904). It cannot be claimed, however, that the
idea of legal protection has been given much thought by the various govern-
ments. It would be necessary in the first place for each one to understand
the common reciprocal usefulness of maintaining the authority of law in the
society of societies. At the present time, every state is actuated with the
egoistic desire of protecting its own interests. We are convinced, however,
that in the course of time it will be better understood that the legal organiza-
tion of international society is strictly connected with the existence and the
moral and material prosperity of the states belonging to it.
51. Civilized states may have recourse to any legitimate form of
influence which will induce the majority of states to recognize
and observe the legal institutions and measures to which they have
agreed.
This rule tends increasingly to enlarge the domain of law, and to promote
the progress of civilization, which can exercise its full influence only when
law becomes the sovereign of the world. We do not believe, however, that
such result will ever be reached, because civilization is constantly describing
its parabolas and is subject to the law of ebb and flow. Be that as it may,
we believe that the institutions and measures designed to prevent war and to
affirm the authority of law, will be established gradually, in proportion as
the domain of civilization enlarges.
52. States establishing particular rules of law with one another
by means of conventions, may also agree upon special measures
to insure their respect, provided, however, that such measures be
permitted by and be not contrary to international law.
'
FUNDAMENTAL PRINCIPLES
103
53. The rules of international law based on the comitas gentium
must be observed for reciprocal utility. The state, to whose det-
riment they are disregarded, cannot have recourse to legal meas-
ures to compel their respect by the other party; it may only re-
quest the explanations to which it is entitled and exercise a right
of retorsion in case of non-observance without justifiable reason.
Retorsion is a legitimate coercive measure in time of peace; it is a political
expedient to compel the state against which it is directed to cease injuring
another state in order to avoid more serious measures.
THE SCIENCE OF INTERNATIONAL LAW
54. The object of the science of international law is to study the
nature of the relations which are formed among the states and those
which arise among the persons and legal entities co-existing in the
Magna civitas, and to select the facts which may concern the
international society. It must search for, determine and formulate
the legal rules best adapted to govern such relations and facts.
55. It is incumbent on the scholar to follow the philosophic-
historical method and to make use of induction and deduction,
in order to discover in the legal organization of international so-
ciety, in the past and in the present, the point of departure for
amelioriating the law which must govern that society in the future.
The law best adapted to govern human society must necessarily have its
historical evolution, since the development of any form of activity determines
new moral exigencies and constantly extends the sphere of law. Consequently,
positive laws in general can not be absolute and permanent, but must be modi-
fied and adapted to new historical and moral conditions, so as to obtain the
best and avoid the worst ends.
These principles must find their application even with regard to the laws
best suited to govern international society, which is subject to the force of
constant progress. Therefore, it is the duty of scholarship to search for and
determine the legal rules best adapted to new historical conditions.
1
BOOK ONE
PERSONS AND MORAL ENTITIES SUBJECT TO IN-
TERNATIONAL LAW
TITLE I
PERSONS AND THEIR INTERNATIONAL RIGHTS
WHO IS A PERSON?
56. Every being or entity must be deemed a person in interna-
tional society who possesses jure suo individuality, liberty and the
ability to act in the Magna civitas, and who has the right to re-
quest in his relations with other beings or entities the application
of international law.
The substantial characteristics of a person are individuality, will, freedom
and the ability to maintain legal relations or connections with other beings
who, possessing like characteristics, belong to the same de facto society. Now,
as we see it, in order for a being to be considered as a person of the Magna
civitas, it is indispensable that he be possessed of individuality jure suo, as
well as of will, freedom and the capacity to enter into legal relationship with
other beings who are members of the international society.
We believe it to be indispensable that individuality be his jure suo, because,
otherwise, he could not demand or vindicate his rights in his own name, nor
require respect for them as against all the world, nor invoke in his relations
with other beings who possess the same characteristics and legal condition, the
application of international law.
There are certain entities endowed also with the will, liberty and faculty
to act and exercise their own rights, but to whom individuality belongs not
jure suo but only by virtue of the territorial law and power of the State. Such
are the associations and groups of men organized for a certain civil or social
object, to whom personality is assigned by an act of the State giving them
the character of juridical persons or corporations. They may also exercise a
sphere of action beyond the limits of the territory in which they have obtained
personality, but they cannot take advantage jure suo of the right to act as
persons, and to exercise as such their rights in international society, for the
personality which they hold from the State, being a legal fact essentially
territorial, makes them necessarily territorial persons, but not international
persons. Their personality does not exist in effect jure suo in all parts of the
105
106
INTERNATIONAL LAW CODIFIED
universe, but is subordinated to a previous recognition by the government at
the head of each state. Therefore, in our opinion, the legal persons who may,
by reason of that recognition acquire the faculty to develop their activity in
the Magna civitas, cannot on that account be considered as persons of the
international society. Accordingly, townships, provinces, corporations, in-
dustrial and commercial societies, even when they may under certain circum-
stances exercise their activity in foreign countries, cannot for that reason
assume the status of international persons.
THE STATE IS A PERSON
57. The State is an association of a considerable number of men
living within a definite territory, constituted in fact as a political
society and subject to the supreme authority of a sovereign, who
has the power, ability and means to maintain the political organi-
zation of the association, with the assistance of the law, and to reg-
ulate and protect the rights of the members, to conduct relations
with other states and to assume responsibility for its acts.
58. The State is by full right a person of the Magna civitas and
must as such be considered capable of entering into relations with
other states, of acquiring the rights that it may possess, of enjoy-
ing and exercising them, of performing the legal obligations in-
cumbent upon it, and of invoking in its relations with other states
the application of international law.
The State possesses individuality jure suo resulting from its political con-
stitution as a state. All peoples who by virtue of their will and freedom con-
stitute a state assume thus, jure proprio, the character of persons in the Magna
civitas. In effect, as soon as politically constituted, it has the power to require
of all other states the respect of its own rights and of all that belongs to it;
it may, besides, in its relations with other states, require the application of
international law. That point is unquestioned, and even most authors admit
that the State alone must be considered as a person in the Magna civitas.
INTERNATIONAL RIGHTS OF THE STATE
59. Every state having some form of political constitution and
a government capable of entering into political relations with
other states and of assuming responsibility for its acts, has the
right in its relations with other states to be considered as politi-
cally constituted.
International law need not be concerned with the legitimacy of the con-
stituted powers, in contrast with constitutional law which admits of the study
of these same powers according to internal law, and consequently, the examina-
PERSONS AND THEIR INTERNATIONAL RIGHTS
107
tion of their legitimacy. Qui de facto regit is considered as sovereign in inter-
national society. Consequently, international law must apply to states as
they are and as history has made them.
60. Every state which is considered as politically constituted, is
entitled to assume jure suo the status of a person, independently
of the formality of recognition (compare rule 168) and may require
in its relations with other states the application of international
law.
61. Every state politically constituted must be considered ipso
jure ipsoque facto as possessed of all the rights which ought to be
considered as its rational rights and of the ability to assume in-
ternational obligations in its relations with other states.
62. The rational international rights which every state possesses
are those which by reason of its nature as an institution must be
considered indispensable in order that it may exist, with its neces-
sary characteristics. These are:
a. The right of autonomy, independence and liberty;
b. The right of sovereignty and jurisdiction;
c. The right to legal equality;
d. The right of representation.
63. The rational rights of the State must be considered as ab-
solute, inalienable and intangible.
64. Every state admitted into relationship with another state
must be considered as being so admitted with the enjoyment of
its rational international rights, and it may ipso jure exercise the
said rights without any authorization from the sovereign of the
state.
65. No limitation upon the enjoyment and exercise of the ra-
tional rights of the State can exist except by virtue of a general
treaty subscribed and ratified by the State, or of a special treaty
concluded and ratified by two states, or of the constitutional law
of both countries.
No limitation of the said rights can be based on analogy or in-
duction (Cf. rule 42).
The two rules set forth are based on the just idea that every state is free to
enter into relations with another state, but that, 'being unable at its own
volition to concede or deny that such state is a jure proprio person of the
Magna civitas, it cannot decide arbitrarily whether that state may or may not
enjoy its rational international rights, that is to say, those which are its own
as a state according to international law (see Fiore, Consultazione tra la Grecia
108
INTERNATIONAL LAW CODIFIED
e la Romania, successione Zappa, Rome; Della personalità giuridica dei corpi
morali e della personalità giuridica dello Stato a l'interno e all'estero; Questioni
di Diritto, Turin, Unione Tip.-Editrice).
MAN IS A PERSON
66. Man must be considered as a person of the Magna civitas;
as such he is a subject of law in his relations with international
law.
Man is the natural person. He is born and exists according to natural law
with his own individuality and is endowed with liberty and the capacity to
maintain legal relations with other persons.
It is important to remember that human individuality and the rational
rights which belong to man as such exist as well in his relations with civil
society as in his relations with both political and international society. Man
must, therefore, be considered as a subject of law in so far as all the relations
he may establish by reason of his liberty and activity are concerned.
As regards civil society, he must be considered as a subject of private rights
even when he has not the status of citizenship in a particular state. As regards
political society, when he belongs to it as a citizen, he must be considered as a
subject of those private and public rights which rest upon citizenship. As
regards international society, since his individuality in his relations with
mankind, far from being lost like a drop of water in the ocean, subsists with his
personality and all the rights which are his in accordance with rational law, he
must be considered as a subject of the international rights which are based on
rational law. Therefore, he may claim the application of international law
and the respect of what we call the international rights of human personality
in his relations with mankind, that is to say, in the relations which, by reason
of his liberty and activity, he may establish with other men living in the
Magna Civitas and with the various states belonging to international society.
Would any one venture by any chance to maintain that the man who is not
a citizen of a particular state, whatever his race or color or whether he be civ-
ilized or not, may within international society be considered as a material thing,
incapable of being a subject of rights? That, independently of treaties, man
cannot require respect for the rights of his human personality, those rights
which belong to him as a man according to rational law?
If that cannot be reasonably maintained, can it be denied that man, as such,
must be deemed a subject of the international rights arising out of his nature
as a human being?
We know very well that our theory is received with some distrust, owing to
the fact that most authors consider as international rights only those belonging
to states in their relations with other states and which have been recognized
and consecrated by treaties. It is said, in order to combat our opinion, that
man has neither the power to conclude a treaty nor to assume an international
obligation. But to such criticism we answer that we never meant to claim that
man could be the subject of the international rights which belong to states
alone in their relations with one another.
In their respective relations with the Magna civitas, the status and per-
sonality of the State is one thing, the status and personality of man, another.
That is why it must be admitted that the international rights which they
PERSONS AND THEIR INTERNATIONAL RIGHTS
109
respectively possess must differ substantially, as well as their ability to act
and bind themselves mutually. Accordingly, it may be said with reason that
only a state may conclude a treaty and assume an international obligation.
This is based on the just principle that every international obligation has the
nature and character of a public and political obligation and that the State
alone has the necessary capacity to contract it, because it alone is a political
and public institution. Man, as we shall note in Book II, has not the capacity
to assume an international obligation and cannot claim the enjoyment in the
Magna civitas of the rights appertaining to the State. We hold, however,
that he may require the respect and the enjoyment of the rights based on
human nature. That is, in that respect he must be considered jure suo as a
subject of international rights.
The theory which we have always sustained, previously set forth by Heffter
(Le droit international de l'Europe) and criticised by his annotator Geffcken
($ 14, note 2 and § 58), has been admitted by Chrétien. It has also been
admitted by Bonfils in his important work, Le droit international public, § 157.
It is to be hoped that other courageous champions will be found and that,
just as the rights of human personality with regard to internal public law have
been successfully vindicated by proclaiming the rights of man in the political
constitutions of all civilized countries, so the international rights of man as
regards international law will be finally proclaimed.
We find in an important international document of our time facts tending
to corroborate us. Article 40 of the treaty of Berlin of July 13, 1878, prescribes
that, until the conclusion of a treaty between Turkey and Servia, Servian
subjects must be treated in accordance with the general principles of international
law. Thus, it was admitted that man may find the basis of his rights in inter-
national law.
1
INTERNATIONAL RIGHTS OF MAN
67. The international rational rights of man are those which
belong to him as a man. They constitute the international rights
of the human personality. They are mainly:
a. The right of liberty and personal inviolability;
b. The right to choose citizenship in a certain state, to renounce
the one acquired and to select another;
c. The right to emigrate;
d. The right of unhampered activity and international trade;
e. The right to own property;
f. The right to freedom of thought;
68. No man can claim the enjoyment and exercise of his ra-
tional rights unless he abides by the laws of the country in which
he expects to enjoy and exercise such rights.
69. The positive international rights of man are those he may
enjoy as a citizen of the state by reason of the treaties concluded
between that state and other states.
110
INTERNATIONAL LAW CODIFIED
Every individual may claim the right to enjoy in international relations all
the rights, advantages and privileges which, by the terms of the treaties be-
tween two states, are reserved for their respective citizens. Thus, for instance,
the right of authors of literary or artistic works to request and obtain the pro-
tection of their works, belongs exclusively to citizens of the states which have
signed the convention of the international copyright union, or adhered thereto.
Private rights granted to the respective citizens of states which are parties to
treaties of commerce, capitulations and consular conventions, must be deduced
in like manner.
THE CATHOLIC CHURCH IS A PERSON
70. The Catholic church is an institution constituted as a re-
sult of freedom of thought by a great number of men scattered all
over the world, but united in a religious association by the bond of
a common faith under the supreme authority of the Pope, who
maintains the unity of the association by promulgating the dogma
and principles of its belief, and by providing for its government
without resorting to coercive measures.
71. The Catholic church is a person of the Magna civitas.
J
The Catholic church, taking it as it is, as time, tradition and history have
made it, is a world institution admirable by reason of its organization, grad-
ually cemented by the work of twenty centuries and preserved by the most
compact and well-disciplined hierarchy that ever existed. It has as such its
individuality jure suo, since it is constituted by virtue of the right of liberty
of conscience which belongs to every man, such right assuming the character
of a collective right with regard to all the believers who formed the Catholic
church. Moreover, it possesses its own sphere of activity, which is not re-
stricted to the territory of any one state, but is exercised over all parts of the
world where there are believers united in religious association under the su-
preme authority of the Pope by virtue of unity of faith, discipline and worship.
Since it is undeniable that the Catholic church is in fact an international in-
stitution, that it is such jure proprio and that it belongs to the Magna civitas, it
must, therefore, be conceded that it is also a person of the international society.
The great difficulty which lies in the way of the acceptance of our idea is the
fact that the Catholic church is at once a religious association exercising its
rights within the state, and a corporation residing in the said state, by reason
of which it falls under the power of the sovereign and must obey the provisions
of public territorial law.
It is truly difficult to consider the Church from each of these points of
view. Consequently, certain publicists such as Bluntschli (rule 26, Droit int.
codifié), Heffter-Geffcken (Droit intern., $ 40), T. Martens (Droit intern., v. I,
p. 426), Pradier-Fodéré, no. 81; Bonfils (Droit intern., $ 155), have held that
they could not admit that the Catholic church had an international person-
ality. They stated in effect, that it is the public law of each country which
determines the rights and privileges of the Church as a corporation; that it is
the political legislation of the State which regulates the acts of the Church
and the responsibility of the persons designated to exercise their functions as
PERSONS AND THEIR INTERNATIONAL RIGHTS
111
ministers of the Pope; that, in substance, everything is regulated by con-
cordats when there are any, and in their absence, by public internal law, and
that nothing belongs to the domain of international law. Hence, they say,
the Church has no international personality.
After carefully considering every side of the question, we, on the contrary,
deem it necessary to distinguish the Catholic church as a universal institution
from that church, considered as an association and corporation existing within
the state; and we believe, that by determining, on the one hand, the legal
rights and faculties which belong to it as an association of men scattered over
all parts of the world and united by the same religious belief under the au-
thority of the Pope, and by examining, on the other hand, the legal rights and
powers that are accorded to it within each state as a corporation, one may ad-
mit the personality of the Catholic church as a world institution, without cur-
tailing in any way the authority of public internal law over it.
We concede that public internal law is controlled by international law,
which fixes the legal sphere within which the absolute autonomy of the sov-
ereignty of every state can be admitted. Therefore, the international rights
which belong to persons existing in the Magna civitas are quite different from
those which may belong to them in their relations with internal law. The fun-
damental question is always the same; it consists in establishing whether or
not a being or entity may become the subject of international rights. Now, we
hold that the Catholic church, as a world institution, must be considered as a
subject of public rights, and even, under the circumstances, of private rights,
if it is characterized as a legal person under the terms of internal law. We
concede, therefore, that as a world institution, it is a person of the Magna
civitas, and may require the application of international law; and that as a
corporation, it has the same status as any association existing within a state,
and consequently must be subject to the authority of public internal law.
Bonfils agrees with the opinion that international personality is denied the
Catholic church, on the ground that public international law does not regulate
the relations of the Catholic church with states. He notes, besides, that it is
public internal law, which, in treating the Church as a corporation subject to
political legislation, determines the rights and privileges that are accorded to
it, as well as the restrictions it must suffer as a corporation.
We grant that, in general, international rights cannot be accorded to persons
unless they are subject to international law; but that such rights must be
declared and regulated whenever, in accordance with the principles of natural
justice, such rights are conceded to them.
It is a fact that in the great republic called humanity or mankind, the
Catholic church exists as a world institution, and as such, has its own in-
dividuality independently of territorial law. It is also certain that its followers,
scattered over all parts of the world, by reason of the right of religious liberty,
recognize the authority of the Pope as their supreme head. Now, the ensemble
of the indispensable conditions required, according to principles of justice, in
order that such a world institution may exist, constitutes the international
rights of the Catholic church as a world institution, in so far as these rights do
not arise from internal law, but belong to the Catholic church jure suo with
regard to all states, and are based on the higher principles which must govern
international society.
Objections are raised that political law is the only basis of the rights and
privileges of the Catholic church and the whole matter, it is argued, is merely a
question of public internal law. With this we cannot agree at all.
112
INTERNATIONAL LAW CODIFIED
Let us study carefully the history of the occupation and annexation of Rome
and of the Pontifical states by Italy. Such occupation and annexation have,
with reason, been considered as questions of public internal law. Italy was
able on that occasion to suppress religious corporations, to subject the Church
to its internal laws so far as the acquisition of property is concerned, to regu-
late the exercise of worship, to subject the ministers of worship to the authority
of civil and penal laws even in regard to the exercise of their calling, and no
one had or will have the right to interfere with such measures, which are fully
within the domain of the internal public law of Italy. But in occupying Rome,
would it have been possible for Italy to interfere with the independence of
the Pope, to prevent or restrict the exercise of his supreme power as head of
the Church, to prohibit or hinder the convening in Rome of councils or synods,
to obstruct the free intercourse of the Holy See with Catholics in different
parts of the world, to forbid these Catholics coming to Rome to recognize
the Pope as their supreme head, and finally to deny the Pope the right of
representation in his relations with foreign governments wishing to maintain
diplomatic relations with him?
Can these questions in any way be considered as within the domain of public
internal law?
It is with good reason that the suppression of concordats, the separation
of Church and State and the suppression of certain privileges have been
considered as within the domain of public internal law; but could it ever be
possible to regard as within the domain of this law the denial of the right of
religious belief for Christians, the massacre of Christians and their persecution
by infidels aroused by religious fanaticism? Can it be held that attacks upon
the natural rights of the Church and its members must be treated with in-
difference by international law, because it does not regulate the relations of
the Catholic church with the various states?
History points to the contrary. The worthy idea of Cavour, the free
Church in the free State, the diplomatic note of Viscount Venosta informing
the Catholic world that Italy in occupying Rome intended carefully to respect
the independence of the Pope and the Church, the law of May 19, 1871, pro-
claiming and guaranteeing the rights of the Papacy in its relations with the
international association of Catholics and with the Italian State,-everything,
so to speak, tends to prove that the Church, as a world institution, must be
endowed with certain rights, independent and quite distinct from those which
it possesses as a corporation and religious association in its relations with each
particular state, for the latter must be governed by public internal law.
To conclude, the Roman Catholic church, as a world institution, should be
considered as a subject of international rights—which we shall indicate pres-
ently--and is consequently, as such, a person of the Magna civitas. It is
therefore evident that in regard to the rights we call international rights, the
Catholic church may claim the application of international law and the
collective legal protection of civilized states.
72. Every Church may be regarded as a person of the Magna
civitas when, considering its constitution and organization, it
actually occupies the position of an international or world insti-
tution.
International law must, in principle, protect the right of freedom of con-
science both as a right of man and as a collective right. It must, therefore, safe-
PERSONS AND THEIR INTERNATIONAL RIGHTS
113
guard the freedom of religious association and faith. Nevertheless, in order that
a Church may assume the condition of a person in the Magna civitas, it is indis-
pensable that it be a world institution. It must, therefore, comprise a great
number of followers scattered all over the world and associated by reason of
their common belief and, finally, organized under the authority of a chief
who effectively exercises over them his supreme power through the clergy and
religious hierarchy.
INTERNATIONAL RIGHTS OF THE CHURCH
73. The international rights of the Roman Catholic church are
those which belong to it as a spiritual and world institution. They
are:
a. The right of independence in regard to its constitution and
organization;
b. The right to liberty of government in the sphere of its purpose
as a spiritual institution;
c. The right of the Pope to maintain free and reciprocal inter-
course with all persons forming the hierarchy and with the
followers of the Church;
d. The right of representation;
e. The inviolability of the Pope as the spiritual head of the re-
ligious association.
74. The Church cannot be assimilated to a state, nor claim the
enjoyment of the rights belonging to a state as such. Neither can
it claim for its supreme head the enjoyment of the rights and pre-
rogatives which, according to international law, belong to the ruler
of the State considered as a political institution.
75. The Church, which, as a spiritual world institution, is an
international person, cannot claim any territorial domain on the
pretext that such domain is indispensable to its independence, nor
the enjoyment of any right whatever based on territorial sovereignty
or ordinary jurisdiction which implies the exercise of temporal and
political power.
The international rights to be assigned to the Church are those, we believe,
which, considering its nature as a spiritual world institution, are indispensable
to it in enabling it to exist as such and to attain its ultimate purpose. Its
primordial and fundamental right is independence; but in order to insure for
that right a firm legal basis, there is no need of political independence, terri-
torial power, ordinary jurisdiction, the right of imperium or finally, coercive
power. The whole thing is summed up in the perfect freedom of promulgating
the dogma and principles of the faith, by bringing them to the knowledge of
114
INTERNATIONAL LAW CODIFIED
the individuals who wish freely and spontaneously to recognize them. Con-
sequently there cannot be anything in common between the rights of the State
and those of the Church, between the rights of a political sovereign and those
of the Pope. The sovereign exercises his power over the persons in his terri-
tory; he must be invested with coercive power so as to fulfil his mission, which
consists in providing for the unhampered development of freedom and ac-
tivity of every one in his own legal sphere. The head of the Church does not
exercise his supreme power within certain territorial limits, but extends it all
over the world. His subjects are souls, and his function consists in promul-
gating principles of faith without resorting to coercive measures.
Conse-
quently, it cannot be said that the Pope exercises any territorial and temporal
power, or claims any of the rights belonging to the sovereign of the State as
head of a political institution.
In considering the Catholic church as a person of the Magna civitas, we
assign to it the rights which we believe are its international rights. We can-
not, therefore, allow it the power to acquire international rights, as a state
does, by means of treaties. In fact, concordats are acts of public internal
law, on which international rights cannot be based.
We find the solemn recognition of the rights of the Catholic church in the
Italian law of May 13, 1871, promulgated with a view to proclaiming them
before the whole world. Those who deny international personality to the
Church should consider that if the Holy See were to reside outside of Rome,
it would be incumbent upon the sovereign of the state in which the Pope
might reside, to do spontaneously what Italy has done, namely, to proclaim
and guarantee the international rights of the Church. Otherwise, by virtue
of the principles of international law, the power to insure the free ex-
ercise of the international rights of the Holy See would reside in states
having Catholic interests to protect, especially in those professing the
Catholic faith.
1
76. The Church cannot possess de jure the right to acquire prop-
erty or to be considered as a universal juridical person: it may
enjoy such a right only by express grant of the territorial govern-
ment. In such a case, it may be deemed a juridical person within
the limits of the territory of the State and must conform to the
territorial law as regards the acquisition and exercise of any prop-
erty right.
Certain authors who do not recognize the distinction between the position
of the Church as a person of the Magna civitas and that of a juridical person,
combat our theory, claiming that the Church cannot be a universal juridical
person.
That is, for instance, the contention of Professor Scaduto. However, far
from ever having asserted it, we have denied that the Church could be an
international juridical person. See Fiore, Diritto internazionale pubblico, 3d
and 4th ed., vol. I, Dei diritti internazionali della Chiesa; Id., Diritto inter-
nazionale codificato, 1st ed., 1890, rule 31, note, and 2d ed., rule 37, note,
pages 81-82; 3d ed., rule 37; 4th ed., rule 71, pages 120-121, and the present
note.
PERSONS AND THEIR INTERNATIONAL RIGHTS
115
INDEPENDENT TRIBES
77. Every independent tribe, which has its own organization and
recognizes the authority of a supreme chief who rules it and re-
spects the fundamental principles of international law, must be
considered a person of the Magna civitas.
78. International law should be applied to independent tribes
within the limits determined by rules 46 and 47.
Independent tribes are those which inhabit a certain definite region and
have a certain form of political constitution according to their written statutes
and common law. Each of them usually has a chief, hereditary or elected by
the people. He himself appoints the subordinate chiefs, over whom he exer-
cises supreme authority, having the power to depose them or to call upon them
to give account of their duties and to punish them, or to decide disputes arising
among them.
When tribes have a more or less perfect political organization, international
personality should not be denied them, although they cannot be assimilated
to a state. It must be conceded, of course, that international law should be
applied to them in varying degrees to accord with historical exigencies; but
they cannot be excluded from the legal community as claimed by certain
authors who wish to make legitimate certain usages, especially the conquest
of the territories of those peoples, under the pretext that uncivilized inde-
pendent tribes do not belong to international society. It must certainly be
recognized that there are civilized, uncivilized and barbarian nations in the
world. We believe that they should all be subject to the superior authority
of international law, although we admit that it cannot be identical for each
of them, but must be modified as needed to conform to historical and moral
exigencies.
INTERNATIONAL RIGHTS OF INDEPENDENT TRIBES
79. Every tribe organized according to its own law, having any
form of government capable of commanding the respect of the
fundamental principles of international law, may require that in
its de facto relations established with civilized states, international.
law may be applied with the limitations justified by its historical
and moral status.
80. The violent conquest of an independent tribe must be
deemed a veritable violation of the common law of humanity.
Independent tribes cannot be considered as outside the law of humanity.
It can only be said that they cannot require the full application of international
law, as is the case with civilized states.
116
INTERNATIONAL LAW CODIFIED
LEGAL ENTITIES
81. The status of a person in international society may be
claimed by legal entities personified by reason of a well-defined
purpose of international interest. This status is limited to the
states which have recognized them as persons and given them the
right to acquire certain privileges, which they must exercise and
enjoy in order to fulfill the international mission for which they
were created.
82. The international personality of legal entities must, in
principle, be considered as limited to the exercise of the interna-
tional rights granted to them, and it cannot have any effect on
states which have not recognized these entities as international
juridical persons.
The condition of legal persons according to international law is similar to
that of legal persons under the civil law. The individuality of these two classes
of persons which, as we have said elsewhere (rule 56), must be considered as
an essential condition of their existence, depends on the personification which
proceeds from the purpose by reason of which legal entities that are not
persons jure proprio, acquire personality. Legal persons must be considered
individualized in consequence of a legal fiction and become persons by virtue
of the act granting them the capacity to operate, to bind themselves and to
be considered the subjects of rights.
There are numerous instances in which the capacity to exercise certain
international rights was conferred on certain legal entities, by the consent of
states. Such was the case with the German confederation. It is also the case
with the International Congo Association, which prior to its being incorporated
with Belgium, was recognized by Germany, Austria-Hungary, Belgium, Den-
mark, Spain, the United States, France, Great Britain, Italy, the Netherlands,
Portugal, Russia, Sweden and Norway. (See Nouveau Recueil général des
traités, continuation of Martens, by Jules Hopf, 2d ser., v. X, 1885, and the
important work of Catellani, Le colonie e la Confederenza di Berlino, chap. VIII,
Associazione internazionale del Congo, p. 499.)
TITLE II
PERSONS UNDER THE AUTHORITY OF INTERNA-
TIONAL LAW AND THEIR RIGHTS
83. Groups of men united by a common cause, reason or purpose,
so far as they interest international society in the exercise of their
rights and the development of their activity, constitute beings
which must be considered subject to international law. Such are:
a. The people;
b. The nation-in the sense of a nationality;
c. Uncivilized tribes.
THE PEOPLE
84. Men who inhabit the same territory, live under the same
laws, and are united by the bond of common civil, economic, social
and political interests, constitute the people.
THE NATION
85. The nation is composed of people of the same origin and
race, who speak the same language, live in the same region, and
are united by the bond of common traditions, aspirations, affec-
tions, and uniform and constant moral tendencies.
UNCIVILIZED TRIBES
86. An uncivilized tribe is composed of a group of persons,
formed by the union of families. It lacks a definite political or-
ganization and has neither the laws nor the customs of civilized
peoples.
INTERNATIONAL STATUS OF THE PEOPLE AND OF THE NATION
87. The people and the nation cannot be considered as persons
of the Magna civitas. They cannot claim the necessary capacity
117
118
INTERNATIONAL LAW CODIFIED
to exercise their rights and assume international obligations until
they have succeeded in organizing themselves as a political body
and constitute an independent government.
However, as groups of men, while exercising their collective
rights, which may be of international concern, they must be con-
sidered subject to international law.
The distinctive characteristic of a person is individuality; hence, the char-
acteristics of international personality are individuality independent of terri-
torial law and a sphere of activity which cannot be limited to the boundaries
of any one state. Consequently, we deny the character of international person
to the people and to the nation, because neither one possesses the necessary
qualifications of international activity and capacity. The bond of community
capable of making a people or a nation of a group of men is not sufficient to
give them the capacity to act in the Magna civitas so as to be considered as a
person of the international society, except in the case where men, thus united,
have made their union effective by the adoption of a certain political con-
stitution; that is to say, by establishing a government personifying and repre-
senting the principle of their union. So long as the people or nation do not
attain that result, it may be said that they are in a state of evolution tending
toward personality. So they must be considered as possessing certain rights
based on human nature, which are theirs as collective beings. In reality,
they are not actually persons, but (if I may be permitted to use the expression
they are persons in fieri, persons in futuro. The people and the nation from
the point of view of international law seem to us analogous to the unborn
child in ventre sa mère from the point of view of the civil law.
С C
88. The international status of the people and of nations is
essentially different and distinct from the condition of the State
(Cf. rules 57 et seq.).
INTERNATIONAL RIGHTS OF THE PEOPLE
89. People who intend to establish or modify their political
constitution, have the right to expect, so far as everything per-
taining to their internal life is concerned, no interference from
foreign governments.
90. The acts of a revolutionary faction, engaging in hostilities
to settle a question of public moment, must be governed, as re-
gards any domestic conditions, by the public law of the State, and
as regards any external effects and relations, by international law.
91. When a government constituted by the people as a result
of a revolution, is found to be possessed of rights of sovereignty,
it must be admitted by other states to be legally constituted.
PERSONS UNDER INTERNATIONAL LAW
119
Such a government may demand that its relations with foreign
powers be regulated by international law.
According to the principles of international law, he is sovereign qui de facto
regit. The legality or illegality of a constituted government is a question of
internal public law. Even when a government constituted in evident violation
of the principles of common law succeeds in establishing itself, it may in its re-
lations with other states, invoke the application of international law.
INTERNATIONAL RIGHTS OF NATIONALITIES
92. Populations which fulfill the requirements necessary to
make them a nation, have chiefly the right to unite with one
another as a political body and to constitute a State.
93. No sovereign, on the basis of treaties, dynastic interests or
prescription, can properly maintain the right to set bounds to the
liberty of people of the same nationality who wish to unite politi-
cally in conformity with their national aspirations.
94. International law should protect the formation of national
states, safeguard the rights of people of the same nationality and
should see that the national aspirations spontaneously and con-
stantly asserted are not repressed by deception or force.
In order to strengthen the legal organization of international
society and to eliminate several causes of internal struggles, it is
especially advisable to favor the formation of national states.
INTERNATIONAL STATUS OF BARBAROUS POPULATIONS
95. Barbaric people, even when they settle in a territory where
they live as they please and recognize the authority of their chief,
cannot be considered as persons of the Magna civitas; yet, so far
as concerns the de facto relations which may be established be-
tween them and states, they may invoke the application of in-
ternational law within the just limitations determined by cir-
cumstances and by their status.
96. Nomadic peoples who have no form whatever of political
organization and who live in their own way on the territory they
occupy, must be considered as subject to international law, in so
far as it protects the rights of human personality.
In applying this rule, we must admit that people occupying certain regions,
such as the Arab shepherds who till the ground and hunt, cannot be unjustly
120
INTERNATIONAL LAW CODIFIED
treated and ruthlessly deprived of their lands. International law must be
applied to them in conformity with the requirements of justice, by observing
the general duties resulting from the obligation to respect the rights of man
and of human personality.
INTERNATIONAL RIGHTS OF BARBAROUS TRIBES
r
97. Barbarous tribes, living in their own way, may always, in
their relations with civilized states, require the respect of the
international rights of the human personality, which are theirs.
Therefore, it is not lawful for Christian and civilized states to
consider barbaric and uncivilized tribes as outside of the law of
humanity.
98. Barbarous tribes have the right to retain the land they ac-
tually occupy and the right not to be deprived of it by violence or
without their consent, in open defiance of the fundamental princi-
ples of international law.
At the Conference of Berlin, where the final act relating to the occupation
and civilization of the African regions was drawn up, Mr. John A. Kasson,
delegate of the United States, spoke as follows at the session of January 31,
1885: “International law constantly follows a course which leads to the
recognition of the right of indigenous races to provide for themselves and
their hereditary property. In conformity with this principle, my government
would willingly submit to a broader rule based on a principle which would
aim at the voluntary assent of the natives whose country is taken possession of,
whenever they have not provoked an aggressive act.”
99. The right to occupy land which is of no use to the savages
cannot be denied to civilized states; but it is incumbent upon them
to effect such occupation by the employment of means least in-
jurious to the savages from whom the useless land is taken.
This rule is based on the principle that the earth is in general designed to
serve the needs of everyone and that it is not permissible that savages who are
unable to derive any profit from natural products should be allowed to leave
sources of wealth unproductive, leaving the ground uncultivated. See Fiore,
Diritto internazionale pubblico, 4th ed., $ 867.
JURISTIC PERSONS
100. Juristic persons are akin to natural persons in the exercise of
the rights assigned to them under the law of the state which recog-
nizes them. They cannot for this reason exercise their rights in an-
other state unless they have legally been recognized there.
PERSONS UNDER INTERNATIONAL LAW
121
This rule applies to juristic persons or corporations proper, formed from all
classes of associations of men, property or purposes, to which the sovereign
of the State has granted personality and the capacity to exercise the rights
considered necessary to the realization of their social usefulness, which is the
purpose of the association. Even when, in order to attain that end, it may be
of general interest that the legal entities extend their sphere of activity to
foreign countries, they cannot do so without the authorization of the sovereign
of the foreign state, granted to them in the form of recognition or otherwise.
What we have said of the nation, people and uncivilized people cannot be
applied to legal entities. It is a fact that in the case of the former, the bond of
union is based on human nature and finds its efficient cause in natural factors.
On the other hand, as regards legal entities, this bond results from their pur-
pose, in consideration of which the government has given them the right to be
the subjects of law. It follows, therefore, that such persons cannot de jure ex.
tend their sphere of activity into foreign countries without the previous authori-
zation of the sovereigns of those states. Cf. Fiore, Diritto internazion. privato,
4th ed., vol. I, parte speciale, Cap. II,-Consultazione sulla controversia fra la
Grecia e la Romania. Successione Zappa.--Della personalità giuridica dei corpi
morali, Extract from Giurisprudenza Italiana, vol. XLVI-XLVII.
1
TITLE III
POLITICAL CONSTITUTION OF THE STATE WITH
REGARD TO PERSONALITY
101. The political constitution of the State and its modifications
should be considered as matters subject to public internal law. Yet
the political constitution, in so far as it establishes the sovereignty
of the State and regulates the form of political organization, exer-
cises its influence on the international personality of the State
where the exercise of the international rights of the State is con-
cerned.
SIMPLE STATE
102. Every political organization having, according to its
constitution, a single undivided and permanent central power,
assigned to a ruler invested with the right to represent the State
and to contract international obligations in its name, is called a
simple State. A state so organized has without doubt a single
international personality.
France, Italy, Russia and Spain are simple states.
COMPOUND STATE
103. A compound state is one formed by the union of several
states which have, by virtue of a constitutional agreement, es-
tablished a central power, which exercises sovereign functions in
their behalf, represents them in their relations with other states
and is empowered to contract international obligations in their
name and to protect their rights and interests in their relations
with other states.
A compound state may present different forms of structure:
federal union, real union, personal union, or confederation.
122
INTERNATIONAL PERSONALITY OF THE STATE
123
VARIOUS FORMS OF A COMPOUND STATE
104. A compound state may assume the form of united states,
incorporate states, federated states, federal empire, or real union,
whenever a central power representing the union of states is es-
tablished. Whenever united states give a unitary form to their
union, their international personality must be considered as single
or sole.
The structure of states under the authority of a common sovereign is ca-
pable of various forms. One of these forms is represented by the union of the
United States of America and that of the Swiss cantons. This is the result of
the submission of independent states to the authority of a central power,
superior and sovereign, not only as regards its powers with respect to the
associated states or cantons, but particularly in its relations with foreign
governments. Consequently, the sovereign of the union has the power to
negotiate and conclude treaties of alliance and commerce in conformity with
the rules established by the constitutional law; to declare war and conclude
treaties of peace; to accredit and receive diplomatic agents; to exercise all the
international rights belonging to each state and to assume international
obligations. This sort of union is called "federal State.”
Another form of union is called real or incorporate. This is the result of
the union of two or more states, which preserve their own individuality in
matters of public internal law, but at the same time, recognize a single sov-
ereign power charged to represent them in international relations, to exercise
rights against and to contract obligations with other states.
Sweden and Norway, united under the authority of a single ruler by virtue
of the act of Charles XIII of August 6, 1815, each had its own government,
its special legislation, its own parliament and its distinct cabinet ministers,
so that while each preserved its individuality in its internal relations, they
were represented in the exercise of international rights by a single sovereign
power. In effect, the power to conclude treaties, to receive and accredit
diplomatic agents and to regulate all affairs of common interest in the relations
of the two states with foreign countries was exclusively granted to the King of
Sweden. That union, which had the characteristics of a real union, has ceased
to exist owing to the separation of these two countries on the 26th of October,
1905. In like manner, the union of the three kingdoms of England, Scotland
(united since 1707), and Ireland (united since 1801), under the name of United
Kingdom of Great Britain, is an instance of what English publicists call
incorporate union.
Another example of union is found in the German Empire. It also has the
character of a compound state, but in the unitary form, in spite of the absence
of any establishment of a central power, separate and distinct from the sovereign
power belonging to each of the confederated states. It is, in fact, the King
of Prussia who has joined the imperial crown to his royal crown, in consequence
of which the central power is in the hands of one of the confederated states.
Therefore, in effect, all the German states, great and small, are dependents of
the King of Prussia, now the Emperor, who represents all the states in the
German Empire and exercises in their name all international rights. Bavaria
alone, for certain particular interests, has retained the right of legation. With
124
INTERNATIONAL LAW CODIFIED
that exception, since the exercise of all international rights, the conclusion of
treaties, declaration of war, conclusion of peace and diplomatic relations, is
assigned to the Emperor, there is no doubt that the international personality
of all the states of the German Empire is one.
The character of each of these forms of union is determined by constitutional
agreement. The manner in which the exercise of the powers is regulated ac-
cording to public internal law, is of no moment; from the point of view of
international law, all that is required is to determine how the sovereign power
in its relations with other states is to be personified. When the exercise of such
a power is granted to a single personality, no matter whether the form of union
be federative, real or incorporate, only a single international personality can
be admitted.
105. When, according to the constitutional agreement of union,
each of the component states has international capacity with re-
gard to certain acts limited to its own particular interest, inter-
national personality is not bestowed on each of them, but only the
capacity to perform these acts within the limits strictly specified
by constitutional law.
PERSONAL UNION
S
106. Two autonomous states, entrusting to the same person the
power to exercise sovereign rights and to represent them in their
relations with other states are considered in personal union, and
each of them has its own international personality distinct from
that of the other.
The bond of personal union does not imply the confusion of the individuality
of the two states and consequently the confusion of international personality
of both. Two states completely independent of one another in every respect,
which have given to the same person the authority to represent them in their
relations with other states, must on that account be considered as subject to
personal union. It should be said, however, that the title of sovereign rights
with regard to each of these two states is not the same and their exercise may
consequently cease for one while it continues for the other. Personal union is
not, therefore, by nature permanent.
Under the provisions of the final act of the Congress of Vienna (arts. 67 and
71), the Kingdom of the Netherlands and the Grand-Duchy of Luxemburg
were constituted in a personal union. This situation lasted until the death
of William III, that is, until November 23, 1890. Since, according to the
constitution of the Grand-Duchy, the ruler of that state could not be a woman,
and the daughter of William III succeeded him as queen of the Netherlands,
the Grand Duke Adolph of Nassau became ruler of Luxemburg, in accordance
with the act of June 30, 1783, and the treaties of Vienna of 1815 and of London,
May 11, 1867.
The same thing occurred with regard to the personal union of Great Britain
and the Kingdom of Hanover which ceased in 1838, because under the provia
INTERNATIONAL PERSONALITY OF THE STATE
125
sions of the British constitution a woman could reign, while under the Han-
overian constitution a woman could succeed to the throne only in the absence
of male descendants in collateral lines.
STATUS OF COLONIES
107. Colonies consist of the over-seas possessions of states.
Their inhabitants have no political autonomous organization, but
are in fact, subject to the power and superior jurisdiction of the
sovereign of the state to which they belong.
108. Colonies have no international personality. Even when
they enjoy a limited autonomy with regard to their own govern-
ment and the authority to perform certain well-defined acts of an
international character, they must be considered as parts of the
state to which they belong, until they have constituted themselves
as independent states.
The legal status of colonies, the various degrees of their political dependency
and their power to perform certain acts in their relations with foreign coun-
tries can be determined only by referring to the special laws enacted by the
government of the state to which the colony belongs, and by studying the
succession of events which may have modified in law and in fact, the status
of any colony. It can only be said that, as a rule, so long as the dependency
exists and the colony has not been able to free itself completely from the dom-
inant state, sovereignty, in everything relating to its functions and rights within
the domain of international law, extends over its colonial domain, which in
fact must be considered as a possession of that state. See Catellani, Le
colonie et la Conferenza di Berlino.
109. The right of colonies to free themselves from the domina-
tion of the mother country and to form their own independent
government is a legitimate right which belongs to all peoples or
nations. The struggle between the colony and its mother country
should be governed by the same rules as apply to civil war waged
with the purpose of effecting a separation within a state and of
establishing a government in conformity with the wish of the
majority.
VASSAL STATES
110. When a state in the exercise of its sovereign powers is in
law and in fact subject to the sovereignty of another state and is
not able to exercise rights and assume obligations in international
affairs except with the permission of the state which exercises
126
INTERNATIONAL LAW CODIFIED
supreme authority over it, it must be considered a vassal of that
state, known as its suzerain,
111. The relation of vassalage must be deemed exceptional
and abnormal and its consequences in the domain of interna-
tional law must be necessarily limited like those arising from any
form of bondage.
112. As long as the subjection of the vassal state to the suzerain
state lasts, the vassal state does not enjoy complete international
personality.
113. The attempt of vassal states to acquire complete independ-
ence and to free themselves from the domination of their suzerain
must be considered as within their legitimate right and they must
be protected in accordance with the principles of international law.
Armed conflict between the vassal state and the suzerain must
be subject to the rules applicable to any form of civil war.
The subordination of a vassal state to a suzerain is greater than that arising
from a protectorate. It may assume various forms resulting from feudal
bonds, which were the origin of vassalage. Civilization tends to establish the
principle of unity of sovereignty, because in reality dualism cannot subsist,
as history shows. The condition of the vassal states of Turkey was modified
by the stipulations of the treaty of Berlin of 1878. Vassalage must be con-
sidered as an anomaly according to modern international law, because it
implies a capitis diminutio. Therefore, with the progress of civilization, vassal-
age must naturally tend to disappear in countries still subject to the supreme
authority of a foreign government.
See, with regard to the present condition of semi-sovereign states, Calvo,
Droit intern., v. I, § 64; Pradier-Fodéré, v. I, 86, 110; Rivier, op. cit., v. I, § 4,
p. 79; Bonfils, Droit intern. public, $$ 188 et seq.; Despagnet, Droit intern., § 127.
TRIBUTARY STATES
114. A tributary state is one which pays tribute to another state
for an indefinite period.
The payment of tribute cannot always be considered as an evi-
dence of dependency. It may sometimes be an imposition in-
flicted by the stronger upon the weaker state to save the latter
greater difficulties, and sometimes a spontaneous offer made to
avoid annoyance and to secure the good will of another state.
Grotius, in speaking of states which pay tribute, says: “I do not see any
reason to question their sovereignty, although the acknowledgment of their
weakness detracts somewhat from their dignity." Le Droit de la guerre, liv. I,
ch. III, $ 22, translation of Pradier-Fodéré, p. 282,
INTERNATIONAL PERSONALITY OF THE STATE
127
Vattel writes: “The custom of paying tribute was frequent in former times:
the weaker, by means of it, buying off the aggressions of the stronger or pro-
curing the latter's protection at this price without ceasing to be sovereign."
Droit des gens, liv. I, ch. I, $7.
Formerly, the principal European maritime powers paid tribute to the
Barbary states to exempt themselves from the annoyances of the latter. This
payment, however, did not in any way affect either the sovereignty or the
independence of these powers. See Wheaton, International law, v. I, § 14,
pp. 48–49; Calvo, Le Droit international théorique et pratique, v. I, § 43; Bonfils,
Droit intern., 3d ed., § 191.
115. Tribute paid by a vassal state to a suzerain state is a
manifest acknowledgment of its dependency and its submission
to its sovereign power.
Such is the tribute paid by Egypt as vassal state to Turkey. It amounts to
the yearly sum of 750,000 pounds sterling (18 million francs). See, with
regard to the present status of Egypt, Bonfils, Droit intern., $ 189, and the
authors cited by him. Also Oppenheim, Int. law, 2d ed., pp. 142, 164. (Great
Britain declared Egypt to be a protectorate on December 18, 1914–Transl.]
PROTECTED STATES
116. A state which is not in the same condition of culture as
civilized states, or which, owing to its weakness, does not possess
sufficient means to protect its rights in its relations with other
states, may place itself under the protection of a more powerful
state and consent to be represented by that state in international
affairs in acts within the domain of international law.
Treaties establishing a protectorate have become numerous in our time.
Germany, Great Britain and France are foremost with regard to protectorates
established in Africa, over several islands in Oceanica and in other regions.
Cf. Bonfils, Droit int., $g 182 et seq., and the full bibliography there cited.
117. The relation of protectorate can be established only by
express consent and when such consent exists, the legal authority
of the protected state as regards the exercise of sovereign powers
in international relations cannot be limited except by the clauses
of the treaty establishing the protectorate, which cannot be given
a broad or liberal interpretation.
118. When, under the clauses of the treaty of protection, the
protected state is deprived not only of legal capacity de jure and
de facto in its international relations, but is, besides, subject to the
protecting state in the exercise of its sovereign powers at home,
1
128
INTERNATIONAL LAW CODIFIED
the condition thus arising constitutes a veritable annexation under
the form of a protectorate.
119. A protectorate, although established by treaty, can be
considered valid by other states only from the time of its due
notification to each of them by the government assuming the pro-
tectorate, and upon their acquiescence therein.
This rule was established by the treaty of Berlin of February 26, 1885, of
which article 34 reads as follows:“. a power which assumes a protectorate
there, shall accompany the respective act with a notification thereof addressed
to the other signatory powers of the present act, in order to enable them if
need be to make good any claims of their own."
120. It is incumbent upon the state which has assumed the pro-
tectorate to assure the protected territories freedom of interna-
tional commerce and to establish therein a force invested with
sufficient authority to induce respect for international law.
This rule is based on the rule sanctioned in article 35 of the above-mentioned
treaty of Berlin, which reads: "The signatory powers of the present act
recognize the obligation to insure the establishment of authority in the regions
occupied by them on the coasts of the African continent, sufficient to protect
existing rights and, as the case may be, freedom of trade and of transit under
the conditions agreed upon.”
This rule providing for the occupation of the coast of Africa should in our
opinion, as we have already said, include the protectorate. See Fiore, Diritto
internaz. pubblico, v. II, 4th ed., Appendix, p. 628.
121. The legal status resulting from the protectorate is excep-
tional and may be likened to that of a minor under guardianship
or to a person alieni juris for incompetence. This condition may
last as long as do the circumstances which gave rise to it.
122. The protecting state cannot, by virtue of a stipulation of
established and accepted protectorate take advantage of the ab-
solute right to compel the protected state, by force, to remain
subject to its protection.
The relation of protectorate introduced in modern times constitutes a
veritable anomaly, like suzerainty and vassalage. As a matter of fact, the
protectorate creates an abnormal situation between a stronger state and a
weaker one. One guarantees existence to the other and the more or less
limited exercise of sovereign powers at home, while the other agrees, in all
matters relating to its international life and relations with otherstates, to be sub-
ject to the sovereignty of its protector. Thus, a dualism is established with
regard to the sovereignty of the protected state which, from a certain point
of view, subsists and from another, is annihilated or at least subordinated to a
foreign sovereignty. As sovereignty tends naturally toward unity, it is quite
INTERNATIONAL PERSONALITY OF THE STATE
129
evident that the relation of protectorate cannot last forever, but is destined
to disappear, either through the complete annexation of the protected state,
or through its emancipation.
The protectorate of France over the island of Madagascar, by virtue of the
treaty concluded December 17, 1885 with the queen of the Hovas, resulted
finally in the annexation of the island, which was proclaimed a French colony
by the law of August 6, 1896.
123. Armed conflict between the protected and the protecting
states to break off the relation of protectorate should be subject
to the rules of the following title which apply to any form of
warlike contest within a state involving political questions of pub-
lic concern.
TITLE IV
TRANSFORMATIONS OF THE PERSONALITY OF THE
STATE
CIVIL WAR
124. Any form of armed internal struggle by persons subject
to the authority of the same sovereign constitutes civil war, when
these persons, militarily organized and observing the laws of war,
engage in hostilities to settle a question of public law.
125. Civil war must, in principle, be subject to the internal laws
of each state; but so far as its exterior effects are concerned, it
may be governed by international law.
The character of civil war may be assigned to armed conflict between citizens
of a state militarily organized and the forces of the government, for the
purpose of changing the political constitution of the state. The same character
is attributed to armed conflict between two countries which by virtue of an
agreement of union, are subject to the same ruler, either in the relation of real
subordination which binds vassal or semi-sovereign states together or the
relation of real union which brings together incorporate states, or that of
federal union which unites confederated States or states constituted as a
federative empire. Provided that such states have a single international per-
sonality and that their struggle tends to disrupt the union, the contest should
be considered as civil war. Consequently, to mention instances in modern
times, we should not only consider as civil wars the armed struggles in Portugal
between the partisans of Queen Dona Maria and those of Don Miguel, and
in Spain between the partisans of Isabella II and those of Don Carlos, but we
must also consider as such the war of secession in the United States of America
(1860-1865) and the wars of independence between colonies and their mother
country, and more particularly, those between Cuba and Spain (cf. Calvo,
Droit internat., v. I, S$ 84 et seq., V. IV, $$ 1882 et seq., and Rivier, op. cit., v. I,
pp. 83 et seq., v. II, pp. 213 et seq.; Pradier-Fodéré, Traité de droit international
public, v. I, § 378).
126. A neutral power may or may not recognize the insurgents
as belligerents; but this recognition cannot prevent the government
of the state from considering and treating them as rebels, until
the armed struggle really assumes the obvious character of civil
war, when it is no longer possible justly to deny the application
of the laws which must govern war. (Cf. rule 128.)
130
CHANGES IN PERSONALITY OF THE STATE
131
}
SEPARATION FROM A CONSTITUTED STATE
127. The people who constitute part of a state may separate
from it and form an autonomous and independent state. They
may claim this right for themselves by all means legitimate ac-
cording to public internal law and international law.
128. The government established by virtue of the political
constitution or agreement of union may treat those concerned
in the separation as rebels and apply the municipal law to them.
Nevertheless, when they succeed in obtaining military organiza-
tion or in occupying a part of the territory of the state by armed
force, and maintain a sufficient force to wage war against the army
of the government and comply with the laws of war, they may
demand that international law be applied to them.
It is extremely difficult in this matter to lay down precise rules for deter-
mining when the criminal law should be applied to the insurgents and when
they must be treated as belligerents governed by international law. Every-
thing depends on the circumstances, length and extent of the insurrection
and on the means at the disposal of the insurgents to enable them to win.
When the insurrection, by reason of its importance, can be called the result of
the collective will of so. large a number of people that they all but form the
majority, and when the insurgent party, owing to the elements of strength at
its disposal, succeeds in avoiding all measures of repressive justice, such an
exceptional condition must be considered as a fact subject to international
rather than municipal law.
The government of the United States displayed political wisdom in treating
as enemies the states which, from 1860 to 1865, fought to secede from the
Union, and by applying to them the laws of war, instead of the provisions
of the criminal law punishing acts of rebellion.
129. The recognition or non-recognition of insurgents as bel-
ligerents must be left to the judgment of each of the neutral powers.
Nevertheless, aside from such recognition, the insurgents cannot
in international relations be considered as malefactors or free-
booters, but the acts performed by them in the course of the armed
conflict must be deemed acts of war, if they abide by the rules of
international law and the customs accepted by civilized people
with regard to ordinary war.
In the application of this rule, it is necessary to point out that, even though
the belligerency of the revolutionary party had not been duly recognized, the
seizure of the property of the enemy in conformity with the usages of war
could not be considered as an act of piracy. It would not be possible, there-
fore, in such a case, to apply the rules of international law relating to piracy,
which we shall set forth hereafter.
132
INTERNATIONAL LAW CODIFIED
WARS OF SECESSION FROM THE POINT OF VIEW OF PERSONALITY
1
130. Conflict between the seceding party and the state does not
pso facto modify the personality of the states. If, however, the
seceders succeed in establishing a government which in fact ex-
ercises sovereign functions in an autonomous and independent
manner and maintains sufficient means to support itself, the
personality of the state may be considered as divided into two
parts.
131. The division of a state into two or more states becomes
effective and final in its effect on international relations, only after
the failure of the means resorted to by the government of the state
to restore its authority over the seceding parts, and the effective
and permanent character of the new state formed by the seceding
subdivisions or provinces has been ascertained.
RELATIONS BETWEEN THE NEW STATE AND OTHER STATES
132. A new state constituted as a result of secession can es-
tablish international relations as an autonomous and independent
state only with the states which have recognized it.
Aside, however, from recognition, such acts as are accomplished
by the government established during the war are considered acts
of government, and with respect to their international conse-
quences, the rules governing the acts of a belligerent power during
military occupation should be applied.
This rule is based on the general principle that in international relations he
who de facto regit must be deemed sovereign.
133. Treaties concluded by the original state from which the
provinces or countries seceded do not continue to apply to the
new state established as a result of the secession.
The English, Spanish and Portuguese colonies which separated from the
mother country and formed independent states were considered as distinct
and autonomous persons. Consequently, the treaties concluded by the mother
countries were not considered binding upon these new states. Cf. Bonfils,
Droit intern., $$ 100-101.
134. The obligations incumbent upon the old state and upon the
new state formed as a result of the secession, in so far as concerns
the public debt and engagements to private individuals contracted
!
CHANGES IN PERSONALITY OF THE STATE
133
by the state prior to the secession, are to be governed by the con-
vention expressly concluded between the old and the new state.
In the absence of such convention, the rules governing these
legal relations in case of cession must by analogy be applied.
RESTORATION
135. In case of restoration, the sovereign of the state recovers
entirely the exercise of his sovereign rights with regard to the
regions occupied by the seceding insurgents, just as if there had
been no interruption or discontinuance, with the qualification,
however, of observing rights acquired by neutrals during the con-
flict or interregnum up to the day of the restoration.
136. The restored ruler cannot be permitted to make use of his
sovereign rights retroactively, or to disavow the acts of the govern-
ment instituted by the seceding insurgents, provided, however,
that such government has fulfilled its duties without violating
international law.
1
This rule is based on the idea that in relations of public municipal law, the
person holding de facto the sovereign power may exercise all the rights and
functions of the government and compel private individuals, citizens and
foreigners, to recognize the force of his command and the authority of his acts.
A STATE FORMED BY THE UNION OF SEVERAL STATES
137. When several states unite to form a new one, the result is
the extinction in fact and in law of the right of personality of each
of the states and the birth of the international personality of the
new state arising out of the union.
138. The new state thus established must be considered the
successor in entirety of the several united states in all that relates
to obligations toward private individuals as well as toward third
powers, and in these matters the rules governing such relations
in case of annexation should be applied.
139. Treaties concluded by each of the states shall not be deemed
binding as of right upon the state formed by their union. . Never-
theless, such treaties as are compatible with the political constitu-
tion and public law of the new state may be considered binding
until, within the shortest time possible, they shall be renewed.
134
INTERNATIONAL LAW CODIFIED
COMPLETE ANNEXATION OF THE STATE
140. Complete annexation takes place when an autonomous and
independent state is either of its own free will or by force incor-
porated in another state.
141. The state which by reason of its voluntary or forcible in-
corporation becomes an integral part of the annexing state loses its
international personality, which is absorbed in that of the state
which effects the complete annexation.
142. Annexation ends ipso jure ipsoque facto the exercise by the
annexed state of every sovereign right in international relations.
It also ends any personal duty on the part of such state as regards
the fulfillment of the international obligations assumed before the
annexation. The state for whose aggrandizement the annexation
was undertaken succeeds to the annexed state in that respect.
The rule must be applied to the rights and obligations which had at-
tached to the sovereign state before it ceased to exist. The idea of succession
to rights and duties applicable in so far as it is possible in relations of public
and private law in the case of cession of a part of the territory of a state, is
applicable with still more reason when the state ceases to exist in consequence
of total annexation, or when several states cease to exist by reason of their
fusion into a single state. International personality undoubtedly disappears;
but as neither the territory nor the population disappear, so the territorial
and economic personality of the extinct state does not disappear. Conse-
quently it must be admitted that all rights and duties are transferred to its
successor, which continues the economic and corporate personality of the
state.
At the time of the annexation of Hanover, Electoral Hesse, the Duchy of
Nassau and the city of Frankfort-a-Main, Prussia, by the law of September 22,
1866, declared itself responsible for the debts and all international obligations
of these states.
143. Treaties concluded by the annexing state must be ipso
jure ipsoque facto considered as extending to the annexed state.
Treaties concluded by the annexed state resulting in an inter-
national servitude established for the advantage of third powers,
should be respected.
Treaties resulting in reciprocal advantages and obligations
between the annexed state and another state, may be enforced if
the annexing state intends to take advantage of them, by limiting
them to the territory of the annexed state, and if there is no oppo-
sition from the state which signed them.
CHANGES IN PERSONALITY OF THE STATE
135
The first part of this rule is based on the theory that except in the case of
express declaration to the contrary, treaties are concluded to be applied to all
the territory of the state and that, in principle, the possibility of the territorial
extension of the states with which they are concluded must be contemplated.
The second part is founded on the general principles: Res transit cum onere
Suo;-Nemo plus juris transferre potest quam ipse habet. Consequently, if the
annexed state, for example, has concluded a treaty limiting its right to rebuild
or erect fortifications on its boundaries, or creating an international servitude,
these treaties must be respected by the annexing state.
With regard to the third part of the rule, it should be observed that it is not
possible to maintain absolutely that all treaties must be annulled by reason
of the disappearance of the subject of the international obligation. On the
contrary, it must be admitted that the treaties concluded by the extinguished
state from which those rights proceed must be respected by the annexing state,
so long as they have not been expressly revoked. Consequently, treaties of
extradition, alliance and similar treaties connected with the exercise of sover-
eign rights must be annulled. But it would not be possible to annul ipso jure
ipsoque facto, treaties relating to boundaries, navigable canals and thorough-
fares. With regard to treaties of commerce, in so far as they relate to private
rights, if the period of time fixed for their denunciation has not expired, the
annexing state must respect them. But as to those treaties which relate to
the exercise of sovereign rights, as for example, the exercise of consular
functions in the respective territories and the rules agreed upon for the
execution of judgments, these acts must be considered as having been an-
nulled by reason of the cessation of the sovereign rights in international
relations.
When the state of Texas ceased to exist by reason of its annexation to the
United States, France and Great Britain, through their ministers, notified
the government of Texas that the treaties of commerce previously concluded
should be considered as still in force and the fulfillment of the financial obliga-
tions contracted by that government should be still binding. (Lawrence,
Commentaire, v. I, p. 210.)
144. With regard to the payment of the public debt, the respect
of rights acquired by private individuals and public officers and
every sort of financial obligation, the annexing state must undoubt-
edly be considered as a successor in entirety.
At the time of the annexation of Texas to the United States, President Tyler
said in his message: "We cannot honorably take the lands without assuming
the payment of all the debts with which they are encumbered.”
145. When a state ceases to exist because of annexation to
several states, the succession both in rights and obligations shall
be distributed proportionately among the annexing states. The
proportion shall be determined by taking into account the total
amount of personal and real taxes collected from the inhabitants
and real estate of the annexed territory.
For the apportionment of the state domain to the different
136
INTERNATIONAL LAW CODIFIED
annexing states, the same rules shall apply as in the case of cession.
146. The property obligations assumed by the extinguished
state must be fulfilled by the successor state, and it is the latter's
duty to respect the rights acquired by private individuals with
regard to the state's property, provided that such rights are per-
fect rights and not mere options or reversions.
TITLE V
CESSION OF TERRITORY AND RESULTING
ANNEXATION
147. The cession of a portion of territory made by the state to
which it belongs to the state acquiring and annexing it to its own
territory, may take place voluntarily, by sale, exchange or gift,
or forcibly as the result of war. The cession must be regulated by
a treaty concluded in conformity with the rules of international
law and the public law of the two contracting parties.
There are numerous examples of cessions, sanctioned by treaties, for an
agreed sum. Such was the case of Louisiana sold by the First Consul to the
United States under the provisions of the treaty of Paris of 1803, and that of
Russian America also ceded to the United States in 1867 for $7,200,000. See
other examples in Calvo, $8 290 et seq.; Rivier, v. I, pp. 197 et seq.
Forced cessions imposed as conditions of peace have usually been the result
of war. Thus, Prussia was compelled to give up certain territory at the peace
of Tilsit in 1807; likewise France, after the wars of 1814–1815 and the war of
1870. Austria was obliged to cede Lombardy to Italy after the war of 1859
and Venice after the war of 1866.
}
148. The consent of the inhabitants of the ceded territory can-
not be considered necessary to render the cession effective. Never-
theless, it is considered advisable in order to prevent opposition
to urge the representatives of the ceded state to vote.
The territory of a state cannot possibly be considered as the property of the
prince. Still less may the inhabitants be considered as accessories of the terri-
tory they occupy. Accordingly, certain authors have held that the assent of
the populations of ceded countries should be held indispensable for the effec-
tualness of the cession. Nevertheless, the majority now agree that as terri-
torial cessions always take place for reasons of public interest, their effectual-
ness cannot be subordinated to the formality of the plebiscite.
Thiers spoke as followsin the Legislative Assembly on March 18, 1867: “The
new principle of the assent of the people is an arbitrary one very often mislead-
ing and at bottom only a principle of confusion when it is sought to be applied.”
Every matter of public interest must as a rule be subject to the approval
of the whole; it is sufficient, however, if the representative bodies of the ceding
state recognize the public necessity or advantage of effecting the cession.
Compare Fiore, Diritto internazionale pubblico, v. II, 4th ed., § 1123;
137
138
INTERNATIONAL LAW CODIFIED
Rouard De Card, Les annexions et les plébiscites dans l'histoire contemporaine;
Lodijenski, Des plébiscites en droit international, 1883.
The formality of the plebiscite is sanctioned in several treaties. See article
I of the treaty of Turin of March 24, 1860, for the cession of Nice and Savoy.
It is also mentioned as a condition in the treaty of Vienna of August 23, 1866,
between Austria and Prussia (art. 5); but that provision was modified by the
convention of October 11, 1878.
The clause most in conformity with rational principles is that of the treaty
of August 10, 1877, between Sweden and France for the retrocession of the
island of Saint-Barthélemy, which reads as follows: "His Majesty the king of
Sweden and Norway recedes the island of Saint-Bartholomew to France and
consequently renounces for himself and all his descendants and successors
the rights and titles over the said colony. This retrocession is made with the
express reservation of the assent of the people of Saint Bartholomew."
The treaty of peace signed at Versailles February 24, 1871, stipulates in
article I: "France renounces in favor of the German Empire all her rights over
the territories situated to the east of the boundary hereafter designated.
“The German Empire shall possess these territories in perpetuity in full
sovereignty and dominion."
149. It is incumbent, however, on the contracting parties to
allow every one full liberty to retain his citizenship in the ceding
state or to acquire that of the transferee, by giving substantial
guaranties for the free and spontaneous exercise of that right.
C
In the treaty of May 30, 1814 (art. 17), a term of six years was given to
the inhabitants to dispose of their property and to withdraw to the country of
their choice.
The right of election of nationality has been admitted in favor of the in-
habitants of, and persons born in, the ceded territories; but it has not always
been clothed with sufficient guaranties for insuring its free exercise. See
treaty of Paris of 1856, art. 21; of Zurich, November 10, 1859, art. 12; of
Turin, March 24, 1860, art. 6. Compare the critical observations of the con-
ditions established for the exercise of that right in Fiore, Diritto internazionale
privato, 4th ed., v. I, $$ 386 et seq.
150. Cession and annexation are considered complete from the
day the transferee takes possession of the ceded territory.
So long as the cession has not become effective by means of
actual occupation, it cannot be said that the territorial government
is, by virtue of the treaty, established in the ceded territory with
all the rights attaching thereto.
The transferee can only demand that the treaty of cession be
fully executed.
The signing of the treaty cannot be deemed sufficient to make the cession
complete, with all the consequences that may arise therefrom. If, by virtue
of the laws of the ceding state or those of the transferee, exchanges or changes
in territorial possessions had necessarily to be approved by the legislative
CESSION OF TERRITORY AND ANNEXATION
139
bodies, as is the case for example under the terms of article 5 of the Italian
law, every consequence arising out of the treaty of cession would necessarily
have to be subject to the approval of Parliament.
EFFECTS OF CESSION AND ANNEXATION
151. The cession of a portion of territory to the state annexing
it does not modify either the personality of the transferor or
transferee but only the exercise of their respective rights of sover-
eignty.
152. As soon as the cession becomes effective, it implies on the
part of the ceding state the renunciation of the exercise of every
right of sovereignty over the ceded territory and its inhabitants.
Usually, formal renunciation of all sovereign rights is specially stipulated.
In the treaty of Vienna of June 9, 1815, the following clause was invariably
inserted in the case of all the cessions subscribed to: "renounces in perpetuity,
for himself and his heirs and successors, all rights over the said provinces, etc.,
in favor of His Majesty. ...
153. After the annexation of the ceded territory is accomplished
by the transferee, the public and constitutional law of that state
must be considered as extending to the annexed territory without
further declaration.
Compare Court of Turin, 24 Messidor year XIII, Journ. du Palais and note;
Cass. française, July 6, 1833, Sirey, 1834, I, 338.
Taking possession by the transferee must be considered as accomplished
without any further formality when the treaty is executed and when that
state has, in any manner whatever, actually exercised its rights over the
ceded territory. Ordinarily, certain formalities which have to be observed by
the two contracting parties to make the act valid, are indicated in the treaty.
The publication of the treaty or a manifesto or proclamation addressed to the
inhabitants of the ceded territory is always considered indispensable.
154. International treaties and every right of the state with
regard to its territorial possessions must be considered as extend-
ing fully to the annexed territory.
On the other hand, international treaties concluded by the
ceding state cease to be applicable to it. In like manner the exer-
cise of every international right by the former sovereign ceases
ipso jure ipsoque facto with regard to the ceded territories, unless
the treaty of cession otherwise provides.
The Court of Aix sanctioned the first part of our rule in its decision of
November 8, 1875 (Sirey, 1876, II, 134).
140
INTERNATIONAL LAW CODIFIED
German courts have held that the Franco-Swiss convention of June 15,
1869, could not be considered in force in Alsace-Lorraine. Court of Mülhausen,
October 31, 1885, and superior court of Colmar, April 2, 1886. (Journ. des
Trib. de Lausanne, June 25, 1886.)
C
155. With regard to third powers, the foregoing rule, so far as
the binding force of treaties is concerned, must be subject to their
previous recognition of the cession.
Nevertheless, the respective rights belonging to the transferor
and transferee states over their respective territorial possessions
cannot be disputed, even as regards the consequences of these
rights in the international relations of the states.
The first part of this rule is based on the just idea that the cession agreed
upon between two or more states pursuant to a treaty which is valid in the
relations of the parties without recognition of third powers, may, however,
be considered by such powers as res inter alios acta, in so far as the said cession
may violate rights acquired under treaties concluded with the ceding state
with respect to the ceded territory. Accordingly, it must be admitted that
third powers, although not qualified to validate the cession or to subordinate
its effectiveness as between the parties to their own previous recognition,
may, however, safeguard their rights acquired over the ceded territory by
subordinating their recognition of the new state of affairs to the condition of
obtaining recognition for these rights by the transferee. Let us suppose, for
instance, that a state has acquired by treaty certain commercial privileges in
the ports of the ceded territory, or the right to coastwise trade, or of fishing
within territorial waters. It could not reasonably be maintained that such
state ought to be deprived of these contractual rights. (Compare the last
part of the note to rule 143.)
The second part of the rule is based upon the general idea that in interna-
tional relations, territorial sovereignty must always be conceded to the de
facto sovereign.
156. The effects flowing from the cession with particular re-
gard to the obligations contracted by the ceding government with
respect to the ceded territory, the enjoyment of property rights in
the public domain, the rights acquired by public officers, the fulfil-
ment of obligations toward private individuals and contribution
to the payment of the public debt, must as a rule be regulated
by the treaty of cession.
157. For all matters not regulated by express stipulation,
the transferee must be deemed to assume the position of uni-
versal successor with regard to rights and obligations connected
with the exercise of public power or arising out of contracts
executed by the government of the ceding state, on grounds
of public utility, with respect to the ceded territory.
CESSION OF TERRITORY AND ANNEXATION
141
The principles governing universal succession according to the civil law
may be applied by analogy to the case of state succession, with proper reserva-
tions.
On principle, it must be admitted that the territory with all its accessories
and with everything belonging to the public domain, passes to the transferee,
who is entitled to enjoy all the advantages connected with the territorial pos-
sessions acquired, without having to pay any compensation to the ceding state
except as expressly stipulated. Thus, if there existed in the ceded territory a
public institution or a charitable organization for the benefit of all the in-
habitants of the ceding state, and if no indemnity had been demanded to
provide for the burdens thus imposed on the ceding state, which would have
to undertake new expenditures to provide for the needs of its citizens, no in-
demnity could be claimed in the absence of express stipulation.
Compare, Court of Cassation of Palermo, January 7, 1868 (Gazetta dei Tri-
bunali, 1868, 257) and January 15, 1871 (Giurisprudenza, v. VIII, 616). See
article 8 of the treaty of peace between Austria and Italy of October 3,
1866.
As regards debts, it must be said that the personality of the ceding state
remains complete notwithstanding the cession of a part of its territory. Hence
it follows that it must remain responsible for the obligations it has contracted,
although originally connected with the ceded territory, whenever by reason
of their nature and object they are considered as property (real) obligations in
the interest of the ceding state. Thus, for instance, the obligations assumed for
works of defense built by the ceding state on the ceded territory and the in-
demnities due by it to private individuals could not be charged to the trans-
feree unless expressly stipulated in the treaty. Inasmuch as the personality
of the ceding state remains intact and complete, the obligations incidental to
the general interests of that state, even though they may be the consequence
of acts connected with the ceded territory, could not be charged to the trans-
feree.
On the other hand, obligations assumed by the ceding state for an object
of public utility relating to the ceded territory, must naturally pass to the
transferee, as a debt assumed by a successor. This would be the case when,
by reason of the erection of a public building on the ceded territory, which
naturally would pass with the territory to the transferee, the ceding state
may have concluded a building contract or proceeded to expropriate private
property for which it would have to pay compensation.
The treaty of Vienna of October 3, 1866, sanctions this rule expressly in
article 8, which reads: “The government of His Majesty, the King of Italy,
succeeds to the rights and obligations arising out of contracts regularly con-
cluded by the Austrian government for objects of public interest especially
concerning the ceded country.". See the same clause in the treaty of Vienna
of October 30, 1864, between Austria, Prussia and Denmark, art. 17.
Compare Fiore, Diritto internazionale pubblico, 4th ed., v. I, $$ 129 et seq.;
Phillimore, Intern. law, v. I, § 137; Bluntschli, Droit intern. codifié, $$ 66–67;
Field, International code, art. 24; Fusinato, in Enciclopedia giuridica italiana,
Vº, Annessione.
168. It is incumbent on the transferee to assume the payment
of a part of the public debt in proportion to the importance of the
ceded territory.
142
INTERNATIONAL LAW CODIFIED
Moreover, it should assume the exclusive burden of the debts
contracted in the public interest of the ceded territory.
See the treaty of Zurich of November 10, 1859, between Austria, France
and Sardinia, art. 5; the treaty of Vienna of October 30, 1864, between Austria,
Prussia and Denmark, art. 17; the treaty of Berlin of July 13, 1878, articles 9,
33 and 42.
The second part of this rule ought to be applied especially when the ceding
state has contracted a loan to erect a building on the ceded territory. It ought
to be applied with still more reason when the loan was for the building of a
railroad across such territory.
159. The transferee is bound to respect the rights acquired by
individuals in the ceded territory, and also those acquired by public
officers in virtue of the exercise of their functions in the ceded
territory.
This rule is applicable to the rights that may be acquired according to the
principles of common law, but is not applicable either to prospective rights or
to privileges based on misuse or on the implied consent of the ceding state.
As regards the rights acquired by public officers exercising their functions on
the ceded territory, their case is usually provided for in the treaties of cession.
There is such a provision in the treaty of Vienna of October 3, 1866, article 17:
“Pensions, military as well as civil, regularly liquidated, which were in the
custody of the public treasury of the Lombard-Venetian Kingdom, shall
continue to be payable to the incumbents and if need be, to their widows and
children, and shall be paid from now on by the government of His Italian
Majesty.”
Nevertheless, even when the treaty is silent, it is always considered in con-
formity with the principles of justice to take account of the rights acquired
by public officers and to have the transferee pay them their pensions when the
said officers have exercised their duties in the ceded territory.
160. The liabilities included in the budget of the ceding state
shall be justly divided so that a part will be assigned to the suc-
cessor, taking into account the intention and object of such
assignment and taking as a basis of the apportionment the eco-
nomic importance and the amount of taxes of the ceded territory.
The expenses of the ceding state to provide for the exigencies of public
service and administration must continue to be borne, because the cession
has not modified its personality. It must be considered, however, that the
assets of the ceding state's budget undergo a diminution in proportion to the
importance of the ceded territory. It is therefore fair, if not just, that the
succeeding state bear a part of the financial obligations.
At the time of the cession of Alsace-Lorraine, it was stipulated in the
additional convention of December 11, 1871: “The German Empire recog-
nizes and holds itself responsible for the civil and ecclesiastical pensions regu-
larly obtaining and liquidated on the 2d of March, 1871 (date of ratification
of the preliminaries of peace) in the name either of individuals born in the
n
CESSION OF TERRITORY AND ANNEXATION
143
1
ceded territories or of their widows and orphans, provided that the persons en-
joying such pensions reside in the territory of the German Empire."
161. When the treaty does not provide for it, the difficulties
relating to the just apportionment of the public debt between the
transferor and transferee and those relating to the execution of the
clauses of the treaty on this matter must be referred to a mixed
commission, observing the rules of procedure used in case of arbi-
tration.
Concerning the difficulties which may arise from cession or annexation, see:
Selosse, Traité de l'annexion au territoire français ou de son démembrement, 1880;
Ca Des annexions de territoire et de leurs principales conséquences, 1881;
Appleton, Des effets des annexions de territoires sur les dettes de l'Etat démembré
ou annexé, 1895; Katibian, Conséquences juridiques des transformations ter-
ritoriales des Etats sur les traités; Fusinato, Cessione, Annessione e loro effetti
giuridici, in l'Enciclopedia italiana, 1890; Corsi, Trasmissione degli obblighi
patrimoniali degli stati in caso di mutazioni territoriali, 1895; Calvo, Droit
intern., v. I, $8 263–298; Bonfils, Droit intern., $$ 214 et seq.; Pradier-Fodéré,
Droit intern. v. II, 98 781, 849; Chrétien, Droit intern., $$ 135-139; Despagnet,
Droit intern., § 96; Oppenheim, International law, I, 2d ed., pp. 285-291.
ADMINISTRATION AND JUSTICE
162. The transferee state must have the power to provide in
complete independence for the administration of the annexed
countries and the position of administrative officers.
Nevertheless, it is incumbent on the state to exercise this power
with moderation and to regulate the status of administrative
officers with justice.
In the treaty of Vienna of 1866, this point is regulated in article 15 as
follows: “Civil employees born in the Lombard-Venetian Kingdom, shall have
the right to choose either to remain in the service of Austria or to enter the
Italian service, in which case His Majesty the King of Italy undertakes to give
them offices similar to those they enjoyed, or to grant them a pension the
amount of which shall be determined by the laws and regulations in force in
Austria."
The Italian government has regulated the status of civil employees as
follows, by the decree of July 19, 1866: “Without prejudice to special meas-
ures, all the employees in the Venetian provinces are, until further orders,
confirmed in their offices with the salary attached thereto, except those who
may have followed the Austrian army or have left their homes at the approach
of the national army, these being considered as having resigned.”
163. Justice shall be administered and decisions executed in
the ceded territory in the name of the transferee or successor
state.
144
INTERNATIONAL LAW CODIFIED
Pending cases shall be governed by the law of procedure in force
in the successor state, except in the case of rights acquired by the
contending parties under proceedings which took place before
the cession.
164. As regards decisions in civil and criminal cases rendered
before the cession, which have not yet acquired the authority of
final judgments, the principles of transitory law governing judg-
ments and jurisdictions when a new law is substituted for an old
one shall be applied.
The two foregoing rules are the legitimate results of the principle that the
cession implies the substitution of one government for the other and that, in
all matters relating to public law (in which are included police and penal laws
and those relating to actions, jurisdiction and procedure), the legislature of
the transferee state comes into power from the time the cession takes effect,
excepting in the case of previously acquired rights. The law of the successor
state, therefore, so far as the ceded territory is concerned, possesses the same
authority as any new law. It is, therefore, natural, as regards all the effects
that the new law may have on legal relations derived from actions and pro-
ceedings commenced and terminated before the cession, that the rules of transi-
tory law governing the consequences of the taking effect of any new law must
be applied.
TITLE VI
RECOGNITION OF THE STATE
GENERAL RULES
165. Recognition of a state is the solemn act necessary to es-
tablish diplomatic relations between states as well as the recipro-
cal enjoyment and exercise of international rights.
166. While a state may exist as such according to its constitu-
tional law, if it desires in its relations with other states to exercise
fully the international rights to which it is entitled and to request
the recognition of its international privileges and powers, it must
first be recognized by the other state or states.
WHEN IS RECOGNITION NECESSARY
167. Recognition is necessary when a new state is formed,
either by forced or conventional separation of a part of the old
state, by the emancipation of states subject as vassals to a suze-
rain, by the liberation of a colony from the mother country, or by
the union of several states into one.
Recognition may be desirable when a new territory is added to
a new state and when it is intended that it should be recognized
as an integral part of the territory of such state, or when some
change in the political constitution of a state has taken place.
There are, in our times, numerous instances of such an occurrence: Belgium
was formed into an autonomous state as a result of its separation from the
Netherlands; Greece, Montenegro, Servia and Rumania, as a result of their
emancipation from the vassalage of Turkey; the American republics, as a
result of their colonial liberation from Great Britain, Spain and Portugal;
and the Kingdom of Italy, formed by the union of the Italian states, etc.
168. A state does not need to be recognized as soon as it is
politically constituted in order to be considered a person, even in
its international relations, nor in order to be held capable of en-
145
146
INTERNATIONAL LAW CODIFIED
joying the international rights which it possesses as a state. Yet,
the admittance of the new state into international society and the
normal and effective exercise of all its international rights must be
considered as conditioned upon its entrance into relations with
other states, which occurs when each of these powers recognizes it.
To decide whether a new state is or is not politically constituted and to
estimate the genuineness of the motives which may have inspired its formation
is a question of constitutional law. The existence of a state depends wholly
on the will of the people who intended to form the state. The legality of the
means is a question of constitutional and not international law. Granted the
existence of a new state, the international question to be solved with regard
to it is the decision as to whether or not it should be admitted as a member of
international society with all the privileges which according to international
law belong to every state effectively constituted. Third powers, therefore,
are merely called upon to decide whether the political personality of the new
political organism is such as to guarantee the exercise and the fulfillment of
international rights and duties. Such is the purpose of recognition.
NATURE OF RECOGNITION
169. Recognition is in its nature a political act. It is the privi-
lege of every government to determine with perfect freedom and
independence whether conditions render desirable or opportune
the recognition of a new state, and it need not account for its
decision to other governments which may consider its recognition
as untimely or tardy.
Great Britain recognized the constitution of the new government at Naples
in 1860 while King Francis II was still at Gaëte and still hoped to defend his
crown with the aid of the military forces at his disposal. The United States,
on the contrary, refused to recognize the independence of Hungary in 1849.
Great Britain delayed until 1782 the recognition of the United States, which
France had recognized in 1778. The states of South America were recognized
by Great Britain in 1825, while Spain did not do so until much later, although
these states had been in existence since 1810 as a result of their independence
from Spanish control. (See Calvo, v. I, § 94.)
170. Recognition may be considered in good faith when it takes
place after the new political organism has acquired a certain
strength, that is to say, when it has at its command the power and
the necessary means for exercising the rights and privileges of the
state, preserving order, administering justice and assuming re-
sponsibility for its own acts.
171. Recognition of a new state may be considered in bad faith
if it takes place during the course of hostilities between the older
1
RECOGNITION OF THE STATE
147
government which seeks by force to restore the old state of affairs,
and the actually victorious party which, though it has succeeded
in establishing a government, does not yet show sufficient stability.
When France recognized the independence of the United States by conclud-
ing with it the treaty of commerce of February 6, 1778, when its struggle with
the mother country had not yet ended, Great Britain considered this untimely
recognition as a hostile act and recalled its ambassador.
VALUE OF RECOGNITION
1
4
172. Recognition must be limited to what appears de facto,
and can never have the effect of an approval of the means used to
secure the triumph of the new government nor constitute a dec-
laration of the lawfulness of these means or of the legitimacy of
the new order of things.
The legality of the means used for the political constitution of a new state
is a matter mainly of constitutional law. No new state can be formed either
by separation or emancipation, without violent means, without revolution,
without desperate struggle; but all that is in the realm of history. In inter-
national law, states must be considered as they have actually been constituted
as a consequence of political events. Every political organism having a
political personality of its own, a government established by the will of the
people, provided with sufficient means to operate as a regular government,
and which gives sufficient proof of its stability and fitness to exercise its own
rights in international society and to assume responsibility for its acts, may
be recognized without the necessity of having to consider the means resorted
to in the formation of the new state.
173. Recognition of a new state cannot be regarded as a hostile
act toward the country of which it was formerly a part, and cannot
be considered as a just ground for complaint, except in cases where,
owing to special circumstances, such recognition might be tanta-
mount to moral assistance given to the new state.
174. The unjustifiable refusal to recognize as an autonomous
and independent state one constituted de facto, must be considered
as contrary to international law and may justify acts of retorsion.
It should be considered as good policy not to postpone the recognition of a
state which has in fact become independent. No attention need be paid the
old government which may make every effort to prevent third parties from
recognizing the new state and to restore its own complete sovereignty. А
tardy refusal, therefore, may no doubt justify acts of retorsion.
At the time of the formation of the Italian Kingdom, certain states of
Germany having persisted in their refusal of recognition, Count Cavour with-
drew the exequatur from the consuls of these states on Sardinian territory,
which act of retorsion brought about the desired result.
148
INTERNATIONAL LAW CODIFIED
175. The recognition of a new state by a congress should be
considered as final in granting the effective enjoyment of interna-
tional rights to such a state, not only as regards the powers as-
sembled in Congress and those which have adhered to its decisions,
but also to legalize the new order of things with regard to the state
whose interest it may be not to extend recognition.
The final separation of Belgium from Holland was recognized by the five
great powers under the terms of the treaty of London of January 26, 1831.
The independence of Greece was recognized at the Conference of Constanti-
nople of 1832; that of the new states of Rumania, Servia and Montenegro, at
the Congress of Berlin, 1878. The new state of Congo was recognized at the
Conference of Berlin, 1885.
176. A state whose rights are impaired by the formation of a
new state cannot refuse for an indefinite period to recognize the
new conditions.
Recognition on its part should be considered as effecting a final
renunciation of any design to restore the old conditions.
It is but natural for the injured state to decide slowly upon recognition of
the new conditions. Not until September 24, 1782, did Great Britain recognize
the independence of the United States, established in 1776. Spain decided
still more slowly to recognize as states its former American colonies, the inde-
pendence of which dated back to 1810. It recognized Chile in 1844, Venezuela
in 1846 and Nicaragua in 1850. Undoubtedly, recognition by the injured
state must be considered as most important in demonstrating its final ac-
quiescence and consequently the end of any contest. But no time can be
fixed to compel that state to effect its recognition. Economic, commercial
and political interests are always the most efficacious motives, and it behooves
the old state to bear them in mind.
RECOGNITION OF CONSTITUTIONAL CHANGES
177. Recognition in the event of a change in the political con-
stitution of a state may be required in order to maintain diplomatic
relations with the new government of that state.
178. The government of every state has the right to maintain
or to suspend its relations with a new government established in
accordance with the new political constitution, and may exercise
the right freely.
179. It is good policy to consider the form of government as
of no import to international society. A sovereign may, however,
refuse to recognize a new government which proclaims principles
subversive and contrary to the fundamental laws of international
RECOGNITION OF THE STATE
149
society, or which impairs, in one way or another, the authority
of the principles of common law indispensable for the preservation
of the legal community among the states.
FORM OF RECOGNITION
180. No particular formality is required to recognize a new state
or government. The fact of establishing diplomatic relations with
it is equivalent to a formal recognition.
The formal recognition of a new state or government may take place in
different ways. The appointment of consular agents, the conclusion of an
international convention, the admission of a new state as such to the provi-
sions of a treaty with other states, and other similar acts of a nature proving
the establishment of diplomatic relations may be equivalent to a formal act
of recognition.
EXERCISE OF ITS RIGHTS BY A STATE NOT RECOGNIZED
181. Every state may freely exercise its rights of sovereignty
within its own territory independently of recognition, and foreign
officials and courts cannot ignore the entirely legal authority of
the sovereign acts thus undertaken.
Since a constituted authority must be considered as invested with all rights
of sovereignty as soon as the people have established or accepted a government
which exercises de facto all sovereign powers, it follows that the exercise of
those rights must be given effect in foreign countries independently of recog-
nition,
The Supreme Court of the United States declared in 1808 that the sovereign
rights of the United States were to be considered as complete from the day
of the declaration of their independence, that is to say, from the 4th of July,
1776, independently of their recognition by Great Britain in the treaty of 1782.
The Court of Cassation of Turin has held with reason that a private person
who has paid to the old government annuities due to the territorial sovereign,
cannot be exempted on the ground of lack of recognition of the new govern-
ment and of his good faith. The rights of sovereignty, said the court, belong
in effect, in their entirety, to the de facto government. (Cass. Turin, July 1,
1869, Giurisprudenza, 1869, 526.)
182. The acts of government of a new state, so far as their
operative effect in international relations is concerned, may be
deemed as of no value in a state which has not recognized it.
Consequently, the courts and political authorities of the latter
country may consider the former conditions as still existing, until
their government recognizes the new state.
}
150
INTERNATIONAL LAW CODIFIED
Although a state, independently of its recognition, must be considered in
legal possession of its internal sovereign rights from the time it is politically
constituted, it cannot be held that its acts, in so far as they are intended to
regulate international relations or be effective abroad, must be considered
valid, as regards another state which has not recognized it.
Let us suppose, for instance, that the new government has, by new laws,
modified public external law by changing, say, the rules relating to the ex-
tradition of criminals or the execution of foreign judgments. Let us suppose it
has, for instance, declared valid a decision of its own courts which has annulled
a marriage by granting a divorce under application of its own law. The courts
of justice and authorities of a foreign country which had not recognized the
new state could disregard these laws so far as their extraterritorial effect is
concerned, and could indeed consider the former conditions as still in force.
(Compare Phillimore, International law, v. II, chap. IV, $ 22, p. 33; Calvo,
Droit international, $$ 99 et seq.)
In order to make our rule clearer, let it be supposed that under the law of
a given state, every act directed against a foreign ruler is punished and that
a newly organized state, not yet recognized, issues a loan for the purpose of
strengthening its position and of repelling the attack of the dispossessed sov-
ereign. Let it furthermore be supposed that a citizen of that state, considering
the government of the new state as legally constituted, lends it a large sum
of money, and the question arises as to whether such an act comes within the
criminal law of his country. Under such circumstances, the loan, as a com-
mercial transaction, could not be considered as a hostile act calling for punish-
ment; but, as a matter of fact, it could be regarded as assistance given to the
ruler not yet recognized, against the dispossessed sovereign. Therefore, it
must be admitted that the courts of the state which has not recognized the
new state should take account of penal sanctions and deem international
relations unchanged.
TITLE VII
IDENTITY AND LOSS OF PERSONALITY OF THE
STATE
183. The personality of the state must be considered as un-
changed and subsisting with all the rights and privileges appertain-
ing thereto, so long as the state preserves its substantial charac-
teristics as a political institution.
184. A state loses its personality when it ceases to constitute
an independent political association.
This may be the result of:
a. Its voluntary incorporation into another state;
b. The voluntary union of several states, forming a new and more
important one;
c. Forcible incorporation into another state, by conquest or
subjection rendered legal in conformity with international
law.
151
TITLE VIII
RIGHTS OF LIBERTY AND AUTONOMY
LIBERTY
185. Liberty, a right possessed by every state in its relations
with other states, is the legal power to act with independence and
without external bindrance within the sphere of its own right.
186. Each state may claim only the liberty and independence
compatible with the respect for the rights of the other states of
the Magna civitas, all being subject to the exigencies of a well-reg-
ulated common existence.
187. Each state, in its relations with other states, must so exer-
cise its liberty as not to infringe upon the rights and legitimate
interests of the others, and not to violate directly or indirectly the
private rights of foreigners.
188. Every government, independently of the obligations con-
tracted by treaties, must, in exercising its rights, be considered
bound to take into account the general interests of international
society and the requirements of common life with other states.
AUTONOMY
$
189. Autonomy is the right of every state to establish and
modify its political constitution and to exercise freely and fully
over its own territory all the powers and functions of sovereignty
without violating international law, free from any direct or indirect
interference by other states in all matters relating to internal
public law.
190. It should be presumed, in principle, that every state enjoys
complete and indivisible autonomy. The state may, however, by
treaty, consent to certain limitations upon the exercise of its
sovereign powers, provided that such limitations be stipulated in
clear, precise and unequivocal language and be not contrary to the
principles of international law.
152
RIGHTS OF LIBERTY AND AUTONOMY
153
191. Every state may, with full autonomy, provide for its pres-
ervation, well-being and development, and its liberty in that re-
spect cannot be limited by fear of any possible danger which
may arise from the continued and progressive increase of its eco-
nomic, intellectual and moral power attained without injury to
the rights of others.
192. Every government may provide with full autonomy for
the defense of the state by organizing its army and navy, building
fortifications, concluding alliances, and adopting all necessary
measures to that end, without being subjected either to limitations
or prohibitions of any kind by foreign governments.
193. Nevertheless, the right of every state to increase its mili-
tary power should always be exercised within just limits estab-
lished by common or general law, as will be explained hereafter,
and should not be so extended as to jeopardize the safety of third
parties.
This rule is based on the idea of limiting armaments according to the rules
to be laid down hereafter. It is in effect inadmissible that a state, by rea-
son of its liberty, may without just reasons increase inordinately its land
and sea forces and thus augment the enormous cost of armaments by forc-
ing the other states to increase their military forces in order to preserve
peace.
Exaggerated armaments may always be considered as injurious to common
interests and may constitute just grounds for demanding explanations, es-
pecially when it may be presumed that they are directed against a certain
state.
AUTONOMY OF LEGISLATIVE POWER
194. Every government may, with absolutely complete auton-
omy, enact and amend its laws and subject to the laws persons,
property, legal acts and facts, under the condition, however, that
it exercise its power within its legal sphere and do not violate
international law.
JUST LIMITATIONS OF LEGISLATIVE AUTONOMY
195. It is not permissible, under the guise of legislative autonomy
to subject foreigners to territorial laws which concern their per-
sonal status, nor to refuse recognition to the personal status of
these foreigners, except where such non-recognition aims to main-
tain the authority of the laws of public policy or those protecting
morals or social order.
154
INTERNATIONAL LAW CODIFIED
196. Any system of law which attributes the character of a real
statute to every provision relating to real property and which
subjects to territorial law every legal relation without regard to its
nature and the enjoyment of any right over real property, no
matter what its nature, as well as the status of the person in whom
that right is vested, should be considered as contrary to the ra-
tional principles of private international law, which fixes the limits
of the legislative power of every government.
197. The respective right of the territorial and foreign sover-
eignty to regulate through its own laws the rights to personal
and real property; the acquisition of the ownership of such prop-
erty; its transfer by deed or will; the extrinsic forms of the instru-
ments to be used in such a case; and the exercise of any right re-
lating to property, must be fixed and determined by agreement
between states, which should lay down uniform rules as regards the
legislative power of every government and should determine the
just limitations upon that power.
In the absence of such an agreement, the power to assign
territorial or exterritorial authority to every law cannot be
considered as within the competence of national autonomy, but
should be governed by the rational principles of private inter-
national law.
These proposed rules aim to establish the rule that, in principle, the sov-
ereignty of the state cannot by reason of its eminent domain over the whole
territory, subject to its own laws every relation of private law concerning real
property, nor the right to transfer it by inheritance or otherwise. It should be
admitted that the legislative power of every sovereignty in its relations with
the legislative power of other states must be determined through rules estab-
lished by treaties, or according to the rational principles of law. Then it is
for private international law to lay down the rules designed to determine the
true rational limits of the authority of every law, so as to eliminate all causes of
conflicts between the laws of the different states. In order to attain that end,
we must refer to the special rules which govern this matter. (See on this
subject, my work, Sull'autorità e sull'applicazione delle leggi straniere o Diritto
internazionale privato, v. 4. Turin, Unione Tip. Editrice, 1902, and the French
translation by C. Antoine, Paris, A. Pedone.)
Compare, Demangeat, Introduction to Clunet, Journal du droit international
privé, v. I.
AUTONOMY IN ITS RELATIONS WITH FOREIGNERS
198. It is always incumbent upon every state to regulate the
legal status of foreigners and all their rights, so as to reconcile its
RIGHTS OF LIBERTY AND AUTONOMY
155
own autonomy with its respect for the common interests and the
rational principles of law.
199. It is a violation of the rational principles of law for any
state to refuse to foreigners, by virtue of its autonomy, the en-
joyment of their private or civil rights, or to sanction legal repris-
als, or to establish an essential difference of legal status between
citizens and foreigners as to the acquisition of private rights,
except to reserve to its citizens alone for reasons of public policy
the acquisition and enjoyment of certain defined rights.
The private rights of every man, called civil rights, are in reality but the
natural rights recognized by civil law, which proclaims them, regulates their
exercise and insures their enjoyment.
A difference of legal status between the citizen and the foreigner as regards
the respect of the private rights of the latter according to his personal statute
cannot, therefore, in principle, be justified. Nor can one any more justify
the subordination of the enjoyment of these rights to the condition of reci-
procity; for legal reprisals must be considered contrary to the principles of
international law and a violation of the rights of man, the respect of which
may be claimed by any one in international society according to the principles
laid down in rules 67 and 68. [The grievous effects of the war on juristic
thought may be seen in an article by the brilliant French jurist, Pillet, of
the University of Paris, who openly advocates discrimination against certain
foreigners after the war. Yale Law Journal for June, 1917, v. 26, pp. 631-
644.—Transl.]
200. It is not permissible, by virtue of legislative autonomy,
to refuse to foreigners the application of the laws in force in the
state protecting the person and the private rights of every one, or
to establish a substantial diversity of treatment in that respect
by reason of the mere circumstance of alienage.
The legislatures of civilized countries have a tendency at the present time
to remove the difference existing between citizens and foreigners with respect
to the enjoyment of civil rights. A good example is furnished by Italy, which
embodied the principle in article 3 of the Civil Code and has assimilated the
foreigner to the citizen with respect to the enjoyment of civil rights. (Compare
Laurent, Droit civ, intern., v. II, § 38, p. 65.) [The Chilean Civil Code, drafted
by Andres Bello, anticipated Italy by ten years in this provision.-Trans.)
The right of the state to reserve the enjoyment of certain rights to citizens, for
reasons of public policy, is one that cannot be denied. It may be considered as
within the domain of legislative autonomy. But no system of law can be estab-
lished by virtue of autonomy, by which foreigners would be placed outside
common law as regards the acquirement and enjoyment of civil rights, or
which would justify all the excessive measures, called droit d'aubaine, which
used to oppress foreigners under the old law. Nor can the security judicatum
solvi or pro expensis imposed on the foreigner who prosecutes his rights in the
courts be justified. This security is not only not required in Italy, but, fur-
156
INTERNATIONAL LAW CODIFIED
thermore, the legislature (art. 8 of the law of December 6, 1865) has extended
to foreigners the benefit of the laws of December 6, 1865, and of July 19, 1880,
under which in certain cases the free services of a lawyer and the advance cost
of law suits may be obtained.
See my works: Diritto internazionale privato, 5th ed., v. I, Preliminari,
cap. III, Parte speciale, lib. I, cap. I, Torino, 1914; Dell'autorità della leggi
nei suoi rapporti col territorio, v. I, sec. II of the work: Delle disposizione
generali sulla pubblicazione ed applicazione delle leggi, 2d ed., Napoli, Eugenio
Marghieri, Torino, Unione Tip.-Ed. Torinese, 1914; Della cittadinanza,
cap. VIII, pp. 167 et seq., Napoli, E. Marchieri, Torino, Unione Tip.-Ed.
Torinese, 1909.
EXERCISE OF THE LEGISLATIVE POWER AND ITS JUST
LIMITATIONS
3
201. Every state has the exclusive power to determine the
appropriateness of its laws, the necessity of modifying them and
their efficacy to protect the rights of private persons and to secure
the respect of international law.
202. Any interference by a foreign power to compel a state to
modify its laws under the pretense of better protecting the rights
of its citizens, should be considered as a violation of the legislative
autonomy inherent in every state.
203. It is always incumbent upon the legislature of every coun-
try to see that its own legislation sufficiently protects the rights
of private persons in their relations among themselves and with
the state and secures the respect of international law.
204. It is not permissible for a foreign state to criticize the legis-
lative system of another state, or to request that it be modified
under the pretext of not being adequate properly to protect the
rights of persons. Only the right to make representations in the
matter may be deemed proper, leaving it to the discretion of the
other government to take notice of the request submitted.
205. Nevertheless, when the legislative system in force in a
state is considered by a Congress as inadequate to protect the
rights of foreigners or to secure the respect of international law
and as requiring certain reforms, the state cannot refuse to heed
such collective representations. It must modify its existing laws
by remedying their deficiencies, under penalty of placing itself
without the law which ought to govern international society.
There are quite a number of cases of collective representation made by
the Great Powers assembled in a Congress to demand the amelioration of the
RIGHTS OF LIBERTY AND AUTONOMY
157
legislation of certain states considered insufficient for the protection of the
rights of persons, or to impose the execution of a promise of certain legis-
lative reforms.
The Congress of Paris of 1856 imposed on Turkey the revision of the statutes
in force in the principalities of Valachia and Moldavia, and charged an inter-
national commission to assume control of the bases of the new organization
of these principalities and to make proposals on the subject (art. 23).
In the treaty of Berlin of 1878, the Great Powers assembled in Congress
recognized the independence of Montenegro, Servia and Rumania, under the
condition, however, that the public law in force in these states be based on
certain rules fixed by the Great Powers (arts. XXVII, XXXVI, XLIV).
Under this same treaty, there was imposed upon Turkey the obligation to
carry out the improvements and legislative reforms required to protect the
rights of the Armenians and to insure their security against the Circassians
(art. LX).
In the treaty concluded at Constantinople September 6–18, 1897, between
the Great Powers and the Ottoman Empire to fix the conditions of peace with
Greece, it was stipulated (art. 3) that the two contracting parties would see
to the removal of all obstacles likely to hinder the regular course of justice;
to insure the execution of the judgments rendered by their respective courts;
and to protect the interests of the Ottoman and foreign citizens in their dis-
putes with Greek citizens, even in case of bankruptcy.
AUTONOMY OF JUDICIAL POWER
RULES RELATING TO JURISDICTION AND COMPETENCE
206. Every government must be considered autonomous from
the point of view of the exercise of its judicial power; and it may
fix the territorial jurisdiction and determine the competence of its
own judges with reference to any litigation relating to persons,
property, obligations or any other matters.
207. Nevertheless, no government may, by virtue of its auton-
omy, attribute jurisdiction to its courts whenever the potestas
judicandi causam belongs to a foreign government.
When it assumes a jurisdiction which it does not properly pos-
sess according to the principles of law, such act must be considered
as an arbitrary usurpation of jurisdiction and as a violation of
international law.
208. The rules relating to the right of jurisdiction possessed by
this or that government, and whose purpose is to determine to
which of these governments the potestas judicandi causam ought
properly to be attributed constitute the rules of jurisdiction ac-
cording to international law. They must be fixed by agreement, or
158
INTERNATIONAL LAW CODIFIED
in the absence of treaty, deduced from the general principles of
law, as is the case whenever no positive rule exists.
It is desirable to distinguish clearly between jurisdiction and competence
considered as powers of the magistrate, which may be assigned to the judge
by the territorial sovereign, and jurisdiction considered as a right belonging to
every government concurrently with other governments and which constitutes,
properly speaking, the potestas judicandi causam as a power of the state.
The sovereign of every state may determine with absolute autonomy which
of the jurisdictions of his own country must be given the right to pass upon
any particular case, and which of the judges in a certain jurisdiction must be
held competent to decide the case, considering its nature, importance and
locality. All these are matters of public law in each country and fall under
the application of rule 206.
The case is quite different when the question involves jurisdiction consid-
ered as a power of the state. When the question arises of establishing whether
the potestas judicandi causam belongs to Italy, France or Germany, it is no
longer a question of public law which is involved, to be determined with entire
liberty by each state by virtue of its autonomy, but it is a true question of
international law, for whose solution no sovereign can impose rules binding
upon the other states. Such a question could be solved only by reciprocal
agreement. In the absence of such an agreement the only course to be followed
is to apply the general principles of law. Consequently, if the state, by
reason of its autonomy, should give jurisdiction to its judges in a case where
the potestas judicandi causam belongs to a foreign state, the act must be con-
sidered as arbitrary and contrary to international law; for it would consti-
tute an unjustifiable usurpation of the jurisdiction belonging to a foreign state.
In the terms of article 14 of the French civil code there is found an example
of jurisdiction assigned arbitrarily to the courts of the state in contradiction
to international law. As for us, we have always maintained that the autonomy
of a state in violation of the rules of jurisdiction according to international
law can never be admitted. See Fiore, Effetti internazionali delle sentenza
(Materia civile), cap. III, § 3, Torino, 1875; id., Note on the decision of the
court of Catania of March 22, 1879, in F'oro italiano, 1879, p. 714; id., Diritto
internaz. pubblico, 4th edition, Torino, 1904, SS 402, 405; id., Sulle disposizioni
generali delle leggi, 2d edition, Napoli, Marghieri, 1908, Torino, Unione
Tipografico-Editrice Torinese, v. I, $$ 454-458; id., Questioni di diritto,
Della giurisdizione e della competenza nei loro rapporti col Diritto internazionale,
pp. 533-40. Torino, Unione Tip.-Editrice Torinese, 1905.
The principles which we have set forth were admitted for the first time in
the Court of Florence in its decision of December 2, 1882, in the case of Blanc v.
Trafford. The Court says: “The question to be decided as to which of two
courts of a foreign state is competent, must be settled in accordance with the
law of the country where the action was brought; but when, on the contrary,
the courts whose jurisdiction is brought in question do not belong to the same
state, the question is settled in conformity with the principles of international
law. (See Foro italiano, 1882, I, p. 1148.)
EXTRATERRITORIAL EFFECT OF A CIVIL JUDGMENT
209. Every government may, with the fullest autonomy, fix
the legal conditions required to give to a foreign judgment the
RIGHTS OF LIBERTY AND AUTONOMY
159
authority of a final judgment. It may also limit, for reasons of
public policy, the effects produced by such judgment.
210. No foreign judgment can, in principle, be considered suffi-
ciently effective to permit it to be forcibly executed. Executory
force must be given to it by the competent judicial authority in
conformity with the territorial law, which must determine whether,
how and when the foreign judgment may be executed and what
rules of procedure must be followed.
The two preceding rules are based on the distinction between the two sub-
stantial elements of any judicial decision. The judge called upon to decide the
case must in the first place examine the rights of the parties and declare their
reciprocal rights in law. This declaration of the right in dispute amounts to
a legal truth and it cannot be denied, in principle, that it ought to be given
extraterritorial effect. Nevertheless, the sovereign of every country may
determine the legal requirements according to which the authority of a final
foreign judgment must be admitted. It is undoubtedly necessary that the
decision of the judge should conform with the required conditions in order that
it may be considered a judgment. Now, the determination of those charac-
teristic conditions, in the absence of uniform rules laid down by agreement
in a treaty, must be considered as within the domain of the autonomy of every
state. Therefore, it is in accordance with the law of each state that we must
decide the conditions which the judgment emanating from a foreign court
must meet in order to have the authority of a final judgment.
The judge, however, does not limit himself to declaring the right of a party,
but orders the other party also to recognize the declared right and allows the
party whose right is recognized to resort to coercive measures to compel his
adversary to execute the decision. This is what gives executory force to the
judgment. Now, it is natural that, by reason of the autonomy of every state,
the coercive measures should be exclusively prescribed by the state on whose
territory the forcible execution of the judgment takes place.
211. Except for the right possessed by every state under the two
foregoing rules, it should be considered contrary to the principles
of international law to refuse all effect to the judgment pro-
nounced by a foreign court, and to compel the contending parties
to litigate again the merits of the controversy.
212. It is the duty of civilized states to determine by treaty
what indispensable conditions must be met in order that a foreign
judgment may have the extraterritorial authority of a final judg-
ment and be executory. Such conditions ought to restrict the
powers of the state court-called upon under territorial law to
order the execution-merely to an examination as to whether the
judgment fulfills the legal conditions necessary to give it extra-
territorial effect, without the power of compelling the parties to
160
INTERNATIONAL LAW CODIFIED
discuss anew the subject-matter of their contested rights. After
this is done, the authority of the territorial law could be admitted
in the matter of execution. In that respect it is advisable to ad-
here to the authority of the law in force in the place where it is
desired to proceed with the execution.
The reciprocal advantage to states of regulating by treaty the execution of
foreign judgments is generally recognized; but an agreement has not yet been
reached in that respect, notwithstanding various attempts.
A conference was contemplated which was to meet in Rome on the initi-
ative of Mancini, but it did not take place. There is no doubt that in
order to establish a uniform law on the subject, a treaty is indispensable.
This treaty ought to determine the rules of international jurisdiction (leaving
to the autonomy of each state those of territorial jurisdiction and competence),
and ought also to establish the rules regarding service of process on absent
foreigners and judicial commissions rogatory, as well as the rules which, in
general, relate to the conditions required for the extraterritorial validity of
judgments. Thus, judgments pronounced by the respective courts of the
states which may be parties to the treaty could have the legal force of
final judgments in the territories of the contracting powers. As to making
executory in a state final judgments rendered in a foreign country, it
must be noted that such judgments might be executed whenever they are
held final and executory in the country where rendered, and it would be
necessary to adhere to the law in force in the country where they are to be
executed. It should make no difference whether the judgment was pronounced
by the competent court against a foreigner, a citizen of the state where it is
to be executed, nor should execution be denied on that ground. Instead, the
fact should be ascertained whether the judgment was pronounced in conformity
with the rules established in the treaty, and the execution of the judgment
pronounced against the citizen of the state in which it is desired to proceed
to execution ought not, in principle, to be refused.
CONDITIONS REQUIRED OF A FOREIGN JUDGMENT UNDER INTER-
NATIONAL LAW
213. The conditions required of every judgment, under the
rational principles of international law, in order to give it extrater-
ritorial authority and be declared executory are:
a. That it bear the character of a final judgment under the law
of the country where the action was brought and that it be
executable in accordance with that law.
6. That it shall have been pronounced by a court competent
under the same law with the condition, however, that such
competence is not assigned to the court in violation of rule
207;
c. That the party against whom it is desired to execute the judg-
RIGHTS OF LIBERTY AND AUTONOMY
161
ment has been duly served with a summons, or has been
legally in default, taking into account the rules prescribed
for the summoning of absent foreigners under the law of the
place where the suit was instituted;
d. That it does not wholly lack good cause;
e. That the judgment be not in any way derogatory to the pub-
lic law of the state where it is desired to execute it, nor to the
territorial laws concerning persons or property, nor to public
policy;
f. That it be not pronounced in violation of the rules of private
international law provided for in any treaty in force between
the state where the judgment was rendered and the state
where it is to be executed;
g. That, when the judgment has been pronounced against a
citizen of the state where its execution is desired and the
judge has had to apply the law of that state, no erroneous
application of that law has been made.
The object of this rule is to enumerate the conditions which might be con-
sidered as essential, according to rational international law, for the execution
of a foreign judgment. These conditions, we believe, might constitute the
common law of states which might wish to conclude a treaty in the matter.
In such a case, the execution and mode of procedure for declaring the judgment
executable must be regulated by the law of the place where it is to be executed.
So long as such a treaty has not been concluded, it is natural that not only
the execution of foreign judgments, but also their executory force, must be
governed in every state by the territorial law. Accordingly, the execution of
such judgments must at the present time depend upon the municipal law of
every country and it may be observed that in that status of the law, no state
may claim that its own rules shall have any extraterritorial authority under
the principles of reciprocity, unless formally so stipulated between the country
where the judgment was pronounced and the country where execution is
desired.
Italy has regulated this matter in articles 941 and following of the Code
of Civil Procedure. The exequatur is issued upon a proceeding called delibazione,
but it cannot be claimed that the rules sanctioned by Italy have any authority
to regulate the execution in foreign countries of judgments of Italian courts.
214. When the party against whom it is desired to execute the
foreign judgment insists that it could not be executed under the
lex fori, it is incumbent on the party requesting execution to prove
that it is executable in the country where rendered.
215. Even when the judgment may be executed under the law
of the country where rendered, the exequatur may be refused:
a. When the legal effects of the judgment, or the legal fact
162
INTERNATIONAL LAW CODIFIED
which it is desired to establish are contrary to the local public
law or public policy.
6. When the means or measure of execution ordered by the
foreign judge is forbidden by the territorial law.
216. It is the right of every state to regulate by its own laws
the methods and forms of execution and all matters relating to the
proceedings for execution.
217. When a foreign judgment is introduced in evidence for the
mere purpose of proving a legal fact or of establishing the status
of persons, without any desire that execution issue upon it, such
judgment has of itself the probative force of any duly authenti-
cated act, and shall fully prove its contents. It is the right, how-
ever, of every state to determine the value which shall be assigned
to the foreign judgment produced, and it must always be left to
the discretion of the competent judge to decide whether the said
judgment may or may not have probative force as against the
party against whom it is invoked.
It may be remarked that the judgment in so far as it is final implies, according
to Italian law, a legal presumption of truth. The party in whose favor it was
rendered and who produced it to establish his right, is consequently exempted
from producing any other proof.
Nevertheless, if such presumption of truth is assigned, according to the laws
of civilized countries, to the judgments of the courts of the state under the
principle res judicata pro veritate habetur, that principle cannot apply to the
judgments rendered by foreign courts. As regards them, we must posit other
principles. It cannot be maintained, in fact, that the presumption of truth
assigned by the legislator to final judgments rendered by the courts of the
state must be extended to those proceeding from foreign courts. The legis-
lator may undoubtedly determine under what conditions the presumption of
truth may be assigned to such decisions; but when the statute is silent, it
must be admitted that it is within the power of the judge to decide the question
by applying the general principles of law.
Certainly, it cannot be sufficient, by producing a document in authentic
form with the claim that it is a judgment, to draw the conclusion that it must
have the authority of a final judgment against the party against whom it is
invoked. It is necessary for the judge to make sure that the document pro-
duced is a true judgment and in order to assign to it that character, it is
necessary to establish that it fulfills all the requirements of the territorial
law in that respect.
The Italian legislator, as we have already said, has established in the Code
of Civil Procedure, certain rules for the execution of foreign judgments. But,
when execution is not in question and the foreign judgment is produced merely
for the purpose of establishing the legal fact which the judgment sets forth,
it may be doubtful whether the conditions necessary for execution can be
regarded as complied with or whether it can be deemed sufficient to assign to
1
163
RIGHTS OF LIBERTY AND AUTONOMY
the judgment which is produced in authentic form, the legal presumption of
truth. Indeed, it does not seem so; but this is not the place to discuss the
question.
Compare: Fiore, Disposizioni generali sull'applicazione e interpretazione delle
leggi, v. II, 2d ed., 1914, $$ 977, 982, Napoli, Marghieri, Torino; Unione Tip.-
Ed. Torinese; id., Memoria letta all'Accademia delle scienze morali of Naples,
Atti dell'Accademia, Resoconti, 1903.
AUTONOMY OF THE STATE IN CRIMINAL MATTERS
218. Every state has the autonomous right to designate by
appropriate laws the acts which shall be deemed offenses and to
provide for their repression and punishment by means of penalties
pronounced against their authors and accomplices, subjecting
indiscriminately to penal and police laws and to the application of
the appropriate penalties all individuals within the state, whether
citizens or foreigners.
219. No state can object to the system of penal legislation in
force in another country, on the pretext that the penalties appli-
cable to its own citizens guilty of an offense are unjust, oppressive
and not in accord with the laws of a civilized state. It can only
object if its citizens are not subjected to the same formalities of
procedure and furnished the same legal guaranties as are extended
to the citizens of the state.
220. In like manner, every state has the exclusive right to regu-
late criminal prosecutions and to object absolutely to the per-
formance by a foreign government of any act, whatever its nature,
implying the exercise of penal jurisdiction on the part of that
state.
EXECUTION OF FOREIGN PENAL JUDGMENT
221. No state can, without forfeiting its autonomy, recognize
in its territory the authority, as a final judgment, of a foreign penal
decision, or insure its execution there.
222. The state can only admit by an express law that, under
certain fixed legal conditions and in specific cases, certain legal
effects (such as the prohibition of the holding of public office
and other incapacities) arising from a penal sentence may result
from the penal judgment of a foreign court.
The state may, besides, hold that the foreign criminal judgment
164
INTERNATIONAL LAW CODIFIED
is an effective title for demanding the extradition of the accused
or convicted person, reserving to itself the right to grant it.
Our rules tend to establish the principle of the territoriality of penal law
and of the criminal action and to exclude the execution of a penal sentence
in a foreign country. There are, however, certain cases where the state may
assign an extraterritorial authority to the penal law which it has enacted; but
such cases constitute an exception to common law. See below, the rules re-
lating to penal jurisdiction.
The criminal action is, however, always exclusively territorial, like the
executory force of the penal judgment. Criminal conviction implies, in fact, a
restriction upon the free exercise of personal rights and liberty, and it cannot
be admitted that it may produce such effects outside of the territory of the
state in whose name the proceedings were instituted. . The sovereign may
decide, however, that in certain cases the penal sentence pronounced in a
foreign country against a citizen can bring about certain effects resulting from
the status of the convicted.
The Italian legislator has provided as follows in these matters in article 7
of the Criminal Code of 1890: “If, against a citizen, for an offense committed
on foreign territory, which is not one of the territories where extradition is not
recognized, -a sentence has been pronounced which, under the Italian law,
might involve as a penalty or penal effect the interdiction of public office
or other incapacity, the judicial authority, on recommendation of the public
prosecutor, may declare that the sentence pronounced in a foreign country
shall produce in Italy the said interdiction or incapacity; subject to the right
of the convicted person to ask that before deciding on the recommendation
of the public prosecutor, the proceedings pursued abroad be reviewed.” See
also article 9 of the Criminal Code of Baden and article 37 of the German
Criminal Code,
AUTONOMY OF THE EXECUTIVE POWER
223. The sovereign of the state has the exclusive right to provide,
with the most complete autonomy, for the execution of the laws
of the state and for matters relating to public administration; and
he is bound to account for his conduct only to the authorities
established according to constitutional provisions.
224. Interference of a foreign state in the acts of public admin-
istration cannot be justified under pretense of protecting the inter-
ests of citizens. Protection in that connection must be considered
in the first place as unlawful whenever its purpose is to obtain for
citizens residing in the foreign state a privileged position.
225. Nevertheless, a government believing itself injured by the
actions of a foreign government or considering that the interests
of its own citizens are injuriously affected by such actions, may
protest and make reclamation through the diplomatic channel.
RIGHTS OF LIBERTY AND AUTONOMY
165
It may, moreover, in appropriate cases, undertake judicial action
before the courts of the foreign country in conformity with the
laws there in force, for the defense of its property rights vio-
lated either by the administrative acts or abuses of authority of the
foreign government.
The foregoing rules are based on the idea of the autonomy of the state in
the exercise of its powers and functions within the state. Nevertheless, as it is
incumbent on every government to exercise its powers without injuring the
interests of foreign governments and citizens, if the administration should be
completely disorganized (as is the case in Turkey, for instance) foreign govern-
ments cannot be denied protection, through diplomacy, of their own interests
and those of their citizens, by making before the disorganized government the
necessary representations to obtain the reorganization of its administration,
This is especially necessary where it concerns the financial administration,
whose abuses and corruption may gravely compromise the pecuniary interests
of foreign governments and persons.
In the case of a genuine injury to property rights, judicial action could be
exercised in the cases and according to the principles set forth below.
226. No sovereign can assign jurisdiction to the courts of his
state in proceedings instituted by citizens against foreign gov-
ernments for damages caused by acts of administration of a for-
eign government. Such claims could only be advanced through
administrative channels and give rise to diplomatic action, in
appropriate cases.
This rule is based on the generally recognized principle of international law
that the jurisdiction with respect to administrative acts belongs to the state
in whose name the acts were performed and that to submit administrative
acts of a government to the jurisdiction of a foreign state would be like sub-
jecting one sovereign to another.
See, to this effect, the judgment of the civil court of the Department of the
Seine of May 2, 1828, in the case of Ternaux Gandolphe against the Republic
of Haiti:
“In view of the fact," said the Court, "that it is an established principle of
international law that states are independent of each other; that the most
immediate consequence of this fact is the right of jurisdiction which each
state retains over its own acts; that to subject the engagements or contracts of
one state to the jurisdiction of another would necessarily deprive the former
of independence and render it subject to the other, whose decision it would
be compelled to obey.
The French Court of Cassation has sanctioned the same principle in the
case of Lambège and Poujol against the Spanish government. Its judgment
reads:
“In view of the fact that the reciprocal independence of states is one of
the most universally recognized principles of the law of nations; that conse-
quently a government cannot be subjected with respect to its contracts to the
jurisdiction of a foreign state; that, indeed, the right of jurisdiction possessed
by every government to pass upon differences or cases which arise out of its
166
INTERNATIONAL LAW CODIFIED
governmental acts is a right inherent in its sovereign authority, which a foreign
government cannot usurp without exposing itself to the danger of altering
their mutual relations.
See Fiore, Diritto internazionale pubblico, 4th ed., 1904, v. I, 98 418-419, and
the article under Agenti diplomatici, in the Digesto italiano, nos. 211-217; Dal-
loz, Jurispr. générale, 1849, I, 5.
227. The autonomy of the administrative power of every state
must be reconciled with the exigencies arising out of the common
existence of states in international society.
LIMITATION OF AUTONOMY
228. The autonomy of each state cannot be considered as abso-
lute. It is limited by the obligations imposed on all members of
the Magna civitas to respect, in the exercise of all their rights, the
superior principles .protecting the necessities of international life,
and not to violate the rules established to insure the respect of
the common interests of states.
This autonomy may, moreover, be limited by virtue of conven-
tions concluded with one or several other powers.
229. Every convention which limits the autonomy possessed by
each state according to common law, must be considered an ex-
ception to the general rule. It cannot extend beyond the case
expressly stipulated nor be applied beyond the time fixed; it must
always be construed as is every exceptional law which restrains
the free exercise of rights, that is to say, in the sense most favorable
to the state which must suffer the restraint and least restrictive
of its natural liberty.
230. No limitations of autonomy can be based on presumptions
or inference or on usage observed even for a considerable length of
time.
231. Forced limitation of the autonomy of a state should be
considered as opposed to modern international law when its im-
portance is so great as to deprive the state of its full international
legal capacity, by placing it, with respect to another state, in the
situation of a vassal.
Such a limitation imposed by force can be considered valid
only if recognized and ratified by a Congress.
Modern international law must aim at doing away with the anomaly of
semi-sovereign states, because history shows that any relation of subordina-
tion and vassalage between two states is a permanent cause of international
RIGHTS OF LIBERTY AND AUTONOMY
167
difficulties and social disturbances. Dualism in the exercise of sovereign
powers is incompatible with the idea of sovereignty, because sovereignty
must be one and indivisible. In the old international society, there was a
perpetual struggle between the vassal states, who wished constantly to recover
their absolute independence, and the suzerain states who wished to maintain
their high suzerainty at any cost. A striking example of such a struggle is
furnished by the sanguinary wars waged by the Danube principalities against
Turkey.
232. The limitation of autonomy may be extinguished by
written agreement, by express or implied renunciation by the
state in whose favor such limitation had been adopted or by
all the modes of denouncing or terminating international conven-
tions.
233. The limitation is also considered annulled when circum-
stances have so changed that if they had existed thus modified
at the time the limitations were established, the limitations would
have had no reason to exist.
This rule would apply in case of the proclamation of new principles of
common international law under which the restriction of autonomy previously
established would be incompatible.
The same conclusion would be reached in cases where, on account of certain
events, relations between states are substantially modified. Thus, many
servitudes of international law born in the middle ages by reason of the
feudal organization of certain principalities were extinguished in consequence
of the organization of modern states.
A restriction upon the free exercise of the rights and autonomy of the state
is that arising from the system of extraterritoriality. Nevertheless, as this
system constitutes an exception to the general rules and finds its justification
in the special historical circumstances existing in the state subject thereto, it
follows that when, owing to the progress of civilization, the conditions are so
modified as to destroy the historical conditions which justified such an ex-
ceptional situation, it should be considered as naturally abolished.
234. Any kind of conventional limitation of the autonomy of
the state which gives rise to a restriction of the free exercise of
sovereign rights, may be considered as a form of international
servitude.
It may consist in the obligation not to do something that one
should have the right to do, or in the obligation to suffer and toler-
ate another state's doing something which, under common law,
it would not be authorized to do.
We say, a form of international servitude, because servitude, properly speak-
ing, always implies a territorial right, as for instance the obligation of passage
or the obligation to build a road for commerce.
See the rules relating to international servitudes, set forth below.
168
INTERNATIONAL LAW CODIFIED
235. The first category consists of:
a. The conventional obligation imposed on certain states to
observe perpetual neutrality;
b. The obligation to destroy certain fortresses and not to allow
their reconstruction;
c. The obligation not to possess war vessels above a certain
number and not to allow them to enter certain waters of the
state;
d. The obligation of having no arsenals or custom offices or
garrisons in certain parts of the territory of a state, and all
other analogous restrictions.
The obligation of permanent neutrality imposed on certain states is to be
considered as a limitation of their autonomy. Such is the case of the Swiss
Confederation by virtue of the treaty of Vienna of March 20, 1815; of Belgium
under the treaty of London of November 15, 1831; of Luxemburg, under the
treaty of London of May 11, 1867; of Congo, under the declaration made by
that state on August 1, 1885, in conformity with article 10 of the treaty of
Berlin of 1885.
The obligation to destroy certain fortresses and not to be allowed to rebuild
them has been stipulated in various treaties, old and recent.
Thus, the obligation to demolish the fortifications of Dunkirk and not to
rebuild them was imposed on France by article 9 of the treaty of Utrecht of
March 13 and April 11, 1713. In the treaty of Berlin of July 13, 1878, there
was imposed on Bulgaria the obligation not to erect any fortress within a
radius of ten kilometers around Samakov (art. 2). In like manner, under the
same treaty, Montenegro was forbidden to have any ships or flag of war and
the obligation was imposed on her to demolish the existing fortresses and not
to build any on her territory between the lake of Scutari and the coast (art. 29).
Compare: Bonfils, Droit international public, 88 338 et seq.
/
236. The second category consists of:
a. The obligation to allow a state to exercise the right of police
and to maintain a garrison;
b. The obligation to allow one or more states to exercise finan-
cial control or to collect taxes;
c. The obligation to allow one or more foreign states to interfere
in the operation of certain public services, and to provide for
the administration of justice.
Instances of this sort of servitude in international law are not lacking. Thus,
under the treaty of Berlin of July 13, 1878, the obligation was imposed on
Montenegro of allowing Austria to exercise maritime and sanitary jurisdiction
at Antivari and on the Montenegrin coast.
In 1876 the obligation was imposed upon Egypt of allowing financial control
by the states interested in preventing the bankruptcy of that country, which
RIGHTS OF LIBERTY AND AUTONOMY
169
might have resulted from the financial maladministration of the Khedive.
After the war of 1897 with Turkey, the Great Powers imposed their financial
control on Greece so as to protect the interests of their citizens. Cf. Bonfils,
op. cit., § 189.
The institution of mixed courts in Egypt is an example of limitation of the
autonomy of the judicial power, constituting a sort of servitude of international
law.
237. Every kind of limitation of autonomy may be extinguished
either by express agreement or by virtue of the termination of
the convention which established it.
France was liberated from the obligation not to rebuild the fortification of
Dunkirk which had been imposed on it under the treaty of Utrecht of 1713,
by causing the repeal of that stipulation in article 17 of the treaty of Paris
of September 3, 1783.
Russia which, under articles 13 and 14 of the treaty of Paris of 1856, had
been compelled to demolish the fortifications it had built on the coast of the
Black Sea, was liberated from this servitude by declaring during the Franco-
German war of 1870-1871, that she did not intend any longer to be bound by
the treaty of Paris in so far as it restricted her rights on the Black Sea. In
consequence of this declaration, the Great Powers met in London, and under
the treaty concluded there March 13, 1871, Russia was relieved from the
obligation which had been imposed on her by the treaty of 1856.
TITLE IX
RIGHT OF INDEPENDENCE
GENERAL RULES
238. The independence of every state consists in the right to
prevent any sort of interference on the part of a foreign state and
to forbid on its territory the exercise, in the name of a foreign
state, of any act which implies the exercise of sovereign power.
Independence is self-government, that is to say, the most com-
plete autonomy as regards every act of government.
239. If a state, by virtue of its independence, were to adopt a
system of isolation, forbidding international commerce, prohibiting
the peaceful use of avenues of communication and of public insti-
tutions, closing all its ports to merchants and preventing civilized
states from procuring on its territory objects of prime necessity
indispensable for the satisfaction of their intellectual or moral
needs, it would violate the principles of international law and
would justify the collective intervention of the other states in order
to remedy such abnormal conditions, so contrary to the general
interests of international society.
This rule may serve to explain how China was compelled to open a cer-
tain number of her commercial ports, owing to the necessity of European
states to import opium and to trade. The absolute isolation in which China
wished to live brought about the war which England declared against her
in order to compel her to abandon her erroneous ideas of superiority and
to conclude the treaty of peace of Nankin of 1842, which resulted in the
establishment of the first commercial relations of Europe with China by the
opening up to trade of the ports of Canton, Amoy, Foochow, Ning-Po and
Shanghai.
Two years later, by the treaty of Wampo of October 24, 1844, France was
recognized by China as having the right to trade and to establish consulates.
PROPER LIMITATIONS OF INDEPENDENCE
240. No state can claim absolute independence, but only such
independence as is compatible with that of others, with the exigen-
170
RIGHT OF INDEPENDENCE
171
cies of international society and with the conditions indispensable
to the maintenance of the legal organization of that society.
241. No state can, by virtue of its independence, claim the
right to reject the collective intervention of states which agree
unanimously that the exercise of its sovereign powers constitutes
a palpable violation of international law, an offense against the
rights of humanity and an evident violation of common law.
Domestic revolutions must be considered in principle as questions of public
internal law. Nevertheless, it cannot properly be claimed that no matter
what the conditions within a state, it is a matter of no import to the other
countries of the international society, and that any interference by them
may be rejected by virtue of the right to independence possessed by every
state,
When, in the course of civil war, massacres, spoliations, torture and other
atrocities occur, provided these acts as a whole are in the nature of an evident
violation of international law and the sovereign of the state has neither the
power nor the means to prevent offenses against the rights of humanity, the
intervention of the great powers, which agree upon the necessity of ending
such abnormal conditions and of restoring the authority of common law,
cannot be contested on a claim of the right of independence.
To be sure, if only one or two states wish to intervene, their action might
be considered as an attack on independence, but the same argument cannot
hold when the great powers agree upon the necessity of intervening. Their
action would then be in the nature of a collective legal protection.
The slaughter of the Christians by Mussulmen, encouraged by the indif-
ference if not the complicity of the Turkish authorities, which took place in
Syria in 1860 and those perpetrated in Bulgaria in 1876, constitute cases calling
clearly for the application of our rule.
242. Collective intervention should be admitted:
a. In case of violation of the rules of international law by the
government of a state;
b. When the public authorities, in the exercise of their functions,
have manifestly violated a municipal law by applying it with
palpable injustice to the prejudice of foreigners, and the
government, notwithstanding the just protests of the states
of which these foreigners are citizens, has not granted them
any satisfaction as a reparation for the arbitrary acts com-
mitted to their detriment;
c. When municipal laws do not afford sufficient protection to
the rights of foreigners or when legal guaranties are not
deemed sufficient in matters of procedure effectively to pre-
vent any abuses of power on the part of public authorities.
243. When, in spite of a collective protest, the government to
172
ÎNTERNATIONAL LAW CODIFIED
which it was made continues arbitrarily to maintain the conditions
considered by other states as contrary to the principles of inter-
national law and to those regarded by the protesting govern-
ments as essential for the effective protection of the rights of for-
eigners, the difference thus arising may properly be referred, as
the case may be, either to an arbitral court or to a Conference.
244. When the arbitral court or the Conference recognizes the
justice of the claim, it is incumbent on the state summoned before
it to conform to the award or finding. In case of a persistent
refusal voluntarily to execute such award, the government which
filed the protest may, after it has exhausted diplomatic action,
and should the case warrant it, resort to compulsion to secure
execution by means admissible under international law.
Suppose, for instance, that during a civil war, justice should be administered
with partiality, as happened in 1907 in Guatemala where, as the result of an
attempt to assassinate President Cabrera, a court-martial rendering summary
justice pronounced the death sentence upon 19 persons who were declared
guilty of that crime, in the absence of all regular proceedings. One could not
in our opinion, under such circumstances justify matters by invoking the
principle of the autonomy of the judicial power of every state.
Autonomy could not, in fact, be invoked to the extent of violating, to the
prejudice of foreigners, the principles of common law which protect the rights
of humanity; nor could objection be made to collective interference and
action to insure respect for the authority of law.
245. The principle of collective intervention, considered as a
legal method of limitation upon the absolute independence of a
state, must be applied without discrimination whether the facts
occurred in Europe or America.
The purpose of this rule is to determine the correct conception of the law
which ought to govern international society. Since this society is constituted
by all the states which have relations with one another, they must all without
distinction be subject to the fundamental laws designed to maintain the legal
organization of such society. It cannot be admitted that international law
may have a varying authority, depending upon whether it is to be applied to
the states of Europe or America. Contrary to this correct idea is the hardly
reasonable one proclaimed by the United States under the name of the Monroe
doctrine, according to which American states alone have the right to settle
with complete independence any question which might concern them. Presi-
dent Monroe, in his message at the convening of Congress on Dec. 3, 1823,
expressed himself as follows:
But, with the governments who have declared their independence, and
maintained it, and whose independence we have, on great consideration, and
on just principles, acknowledged, we could not view any interposition for the
purpose of oppressing them, or controlling, in any other manner, their destiny,
RIGHT OF INDEPENDENCE
173
by any European power, in any other light than as the manifestation of an
unfriendly disposition towards the United States.” The President really
meant to oppose any intervention of the European powers which contemplated
an attack upon the independence of the colonies which had lately declared
their independence. In that respect he expressed a proper view in affirming
that the political independence of those new states could not admit of any limi-
tation.
Monroe's doctrine was subsequently exaggerated by those who, making
no proper distinction between matters of general interest which doubtless
cannot be solved independently of each of the interested states, and those of
private interest, have sought to find in the message the affirmation of the
absolute independence of the American states in all matters in which they
might be concerned, whatever their substance or purpose. This is abso-
lutely inadmissible.
Finally, it has been sought to invoke the Monroe doctrine by objecting to
any action of European powers, when, in order to protect the interests of their
subjects, they have rightly reminded certain American states that they must
respect their obligations toward these individuals.
The Monroe doctrine, thus understood, results in allowing an American state
to disregard the principles of justice in its relations with foreigners, to violate
moral laws, to refuse to entertain the just claims of foreigners injured by its
acts, to create, thus, an abnormal and illicit state of affairs under the principles
of common law and international morals, and to object to any form whatsoever
of interference designed to put an end to such manifest violations of the prin-
ciples of justice, by advancing in opposition the principle of its independence
and the Monroe doctrine. Surely, this is not admissible.
Can it be maintained that the American states may so take advantage of
their independence as to scorn openly the legal order and the laws of the
international society?
TITLE X
RIGHT OF IMPERIUM
GENERAL RULES
U
246. The right of imperium or sovereignty consists of the emi-
nent domain which resides in the sovereign of every state over all
its territory and over analogous places.
Under this right, the sovereign possesses the supreme power to
subject all individuals, either citizens or foreigners, residing in the
territory or places within his domain, to the laws he has enacted
to protect the rights of individuals, of groups and corporations and
of the State and to assure the respect of international law.
247. No act of authority, command or coercion can be enforced
outside the territory and places where the sovereign exercises
eminent domain.
Roman jurists considered the right of imperium as so exclusively territorial
that they defined territory as the whole of the lands over which command
and coercive power could be exercised. Territorium, said Pomponius, est
universitas agrorum intra fines cujusque civitatis, quod ab eo dictum quidam aiunt
quod magistratus ejus loci intra eos fines terrendi, id est summovendi jus habet
(L. 239, § 8, Dig., De verborum significatione).
On the bases of this same idea, the jurist Paul said: Extra territorium jus
dicendi impune non paretur (L. 20, Dig., De jurisdictione, 2, 1).
248. The right of imperium is exercised with respect to per-
sons and to the territory and to things in the territory.
RIGHT OF IMPERIUM WITH REGARD TO CITIZENS
249. The right of imperium or sovereignty of the sovereign of
the State with regard to citizens is based on the nature of citizen-
ship and consists in his power to regulate by his laws the status
of the state's citizens even in foreign countries—their personal
status and legal capacity, their family relations and all rights
arising from these relations, including the right to transfer prop-
erty to legitimate heirs by gift or by will.
174
RIGHT OF IMPERIUM
175
250. The sovereign of the State may also recall to the territory
citizens residing abroad, when he deems their presence necessary
for the defense of the country or for the performance of their
military service.
251. The submission of a citizen to the authority of the sover-
eign of the state to which he belongs, arising as it does out of the
very nature of citizenship, may be held to subsist until the citizen
loses his nationality of origin by becoming a citizen of another
state.
252. No sovereign may refuse to a citizen the right to expatriate
himself and to acquire citizenship in another state. The previous
authorization of the sovereign as a condition preliminary to the
exercise of such right cannot be considered as based on allegiance.
The sovereign has the right, however, to demand that those who
would wish to expatriate themselves shall first serve their time in
the army in the country of their origin. Furthermore, he has the
right to treat as a rebel anyone who has fought against his mother
country.
Formerly, it was admitted that every individual was considered as attached
to the sovereign of his mother country by allegiance, which was held to be in
itself a permanent and everlasting bond which could not be broken by the
person so bound without the consent of his prince.
It is by reason of this relation that the legislation of certain states provides
for a permanent obligation of fidelity and obedience of a citizen towards the
sovereign of his country of origin and denies him the right to expatriate himself
and to become naturalized abroad without the consent of the sovereign. In
some countries allegiance was considered as a relation so absolute and per-
manent that it was called inalienable and imprescriptible, notwithstanding
the many personal facts to repudiate it.
Such was the case under the Swiss federal law previous to the Act of July 6,
1876, and under the English law previous to that of May 12, 1870, providing
that an Englishman may forswear his allegiance by becoming naturalized
abroad.
This relation, so far as it is considered absolute, inalienable and imprescript-
ible, must be held contrary to the international rights of man. Compare:
Bonfils, Droit international public, $ 423. [See also, Borchard, Diplomatic pro-
tection of citizens abroad, New York, 1915, $$ 4-5, 237-238, 316, 320-321—
Transl.]
253. The sovereign may punish a citizen guilty of an offense
committed on foreign territory, when he returns to his home terri-
tory and has not been tried and punished in the country where the
offense was committed.
This power should be justly exercised when it involves offenses
1
176
INTERNATIONAL LAW CODIFIED
of some importance, such as those involving punishment restrict-
ing personal liberty for not less than three years.
Without admitting that criminal law may assume with respect to the
citizen the character of a personal statute, we may justify the punishment
of the citizen who has debased the dignity of the national character abroad.
LIMITATION OF THE RIGHT OF IMPERIUM
254. The sovereign cannot, by virtue of his right of sovereignty
over citizens, execute against them, while abroad, any coercive acts,
either directly or indirectly, to compel them to obey him. Nor
can he require the sovereign of the foreign state to recognize the
authority of the laws enacted by him with respect to the said
citizens, unless so provided in a special treaty.
RIGHT OF IMPERIUM AS REGARDS FOREIGNERS
255. Every foreigner entering the territory of a state is bound,
so long as he remains there, to submit to the authority of the laws
of public security, police and public order and to the municipal
public law in general. He cannot complain if those laws are more
oppressive than or different from those of his own country. He
can only demand that there be no discrimination between him-
self as a foreigner and citizens of the state in the rules of proce-
dure and the application of legal guaranties.
256. It cannot be considered as in conformity with the princi-
ples of law and international practice to subject foreigners who are
not permanent residents to civil and military service, forced loans,
war contributions and any extraordinary contribution imposed
on citizens.
These charges may be imposed only on foreigners who are per-
manently domiciled in the state on the condition, however, that
they be granted a reasonable time to transfer their residence else-
where, if they are unwilling to submit to the application of oppres-
sive laws promulgated since the establishment of their residence.
257. The sovereign of every state has the right to expel a for-
eigner on grounds of public policy or if his presence is harmful
to the state. This right must be admitted especially with regard
to the foreigner convicted of crime, when, according to territorial
RIGHT OF IMPERIUM
177
law, expulsion is a collateral penalty attaching to criminal convic-
tion.
We must also admit the right to expel the foreigner who, by
general common law, would be subject to extradition, if the re-
quest for extradition is not made by the state concerned, either
because of neglect on its part, or because of the absence of an
extradition treaty.
Expulsion can never be ordered in the interest of private in-
dividuals, either to prevent legitimate competition, or to protect
them from law suits instituted against them in the territorial courts
or before competent territorial authorities, or for any other reason
foreign to the public interest.
258. Expulsion of a foreigner ought always to be justifiable if he
is found to be a beggar or in a state of vagrancy; if he has settled
in the state secretly or under a fictitious name; if he is suffering
from a contagious disease liable to constitute a menace to public
health; if, by the life he is leading, he offends public morals, as in
the case of prostitution or the practice of professions or trades
forbidden by law; if through his illegal acts he endangers the
domestic safety of the state or exposes the government to just
claims on the part of friendly governments, thus imperilling the
amicable relations existing between the two.
259. It is incumbent on civilized states to regulate by law the
expulsion of foreigners, in ordinary as well as extraordinary cases,
so as to prevent any arbitrary act by the executive power and
to protect the personal liberty and inviolability of foreigners.
260. Expulsion of a foreigner by administrative decision may
be justified in exceptional cases on serious grounds of public policy.
Nevertheless, the expelled individual ought to have the privilege
of entering a caveat against the administrative decision before a
court, which would then be called upon to examine the circum-
stances upon which the expulsion was based. In all cases, we
should admit the right of the government of the country of the
expelled individual to demand and obtain explanations as to the
reasons which brought about the expulsion and to require the ob-
servance of the rules of procedure laid down by municipal law.
See on this subject: Fiore, Traité de droit pénal international, translated by
Charles Antoine, Paris, 1880, v. I, chap. 3: Du droit d'expulser l'étranger.
There are mentioned in this chapter the laws in force in various countries
relating to the expulsion of foreigners.
178
INTERNATIONAL LAW CODIFIED
Institut de droit international, session of Hamburg, v. XI. See in that
volume, the Projet de réglementation de l'expulsion des étrangers, by Feraud-
Giraud. See also Oppenheim, International law, v. I, 2d ed., $$ 323-326, p.
399; (and Borchard op. cit., $$ 27-32—Transl.}
261. The wholesale expulsion of foreigners may be justified
only when, by their presence, they seriously disturb public order
and tranquillity. This measure, therefore, may be maintained so
long as the public necessities which caused it continue to exist. In
time of war, the collective expulsion of foreigners may be justified
by the necessity of protecting the national interests.
262. The foreigner must be served with a notice of his expulsion,
and he must be given a reasonable time to leave the territory of
the state. Coercive measures to carry out the order of expulsion
are legitimate only after the expiration of this reasonable time or
when the foreigner has failed to meet the conditions imposed upon
him by the order of expulsion.
263. Expulsion ordered against a class of individuals or against
all foreigners belonging to the same state should be subject to the
rules of legal publication laid down by municipal law.
The interested parties should in principle be granted a reasonable
time for the voluntary execution of the order of expulsion. Coer-
cive measures should only be resorted to after this period has
expired.
However, in certain exceptional and urgent cases, the expulsion
may be carried out by the use of coercive measures directed against
all individuals declaring themselves unwilling to comply with the
order as published, especially when these individuals prepare to
resist its execution.
264. The order of expulsion may also indicate the point of the
frontier designated for leaving the territory, taking into account,
so far as possible, the interests of the expelled individual.
The government may always keep the expelled foreigner under
surveillance as far as the frontier, and if need be, oblige him to leave
the territory on board a certain ship, so as to insure the execution
of the order of expulsion.
RIGHT OF SOVEREIGNTY OVER TERRITORIAL WATERS
265. The territorial sea must be considered as constituting a
part of the domain of the state to which the coasts belong. By
RIGHT OF IMPERIUM
179
virtue of this eminent domain, every state has the exclusive
right to provide for the security and defense of the territory of the
State, the protection of the private interests of its citizens, the free
carrying on of commerce, and the protection of the general and
fiscal interests of the State.
No state can, however, assume the right to prohibit the in-
offensive use of its territorial waters.
266. Every state has the exclusive right to regulate the patrol
of navigation within territorial waters, the approach to the coasts,
the entrance into ports, the obligation to take a local pilot, free
pratique and all similar matters. It is incumbent upon it to es-
tablish a strict supervision so as to insure compliance with the laws
and regulations by providing punishment for those who infringe
them.
267. The right to fish and collect all under-water products
within territorial waters may be reserved for citizens, except when
treaties extend the fishing privilege to foreigners.
Fishing in territorial waters is generally regulated by commercial treaties
and by special conventions covering the matter. In several treaties concluded
by Italy, fishing in Italian territorial waters is reserved for her citizens. It is
so stipulated in the treaty with Austria-Hungary of December 6, 1891, ar-
ticle 18, and in the treaty with Mexico of April 6, 1890, article 17, and others.
The delimitation of the fishing limits in the bay of Mentone was determined
by the convention of June 18, 1892, between Italy and France. There are
many instances of treaties where the reservation of the exclusive right of
citizens to fish in territorial waters is not stipulated. It is always necessary
to refer to special conventions, to decide whether or not such reservation has
been made. In principle, in the absence of a treaty of commerce, the privilege
ought to be recognized as reserved to citizens. Compare Oppenheim, Inter-
national law, I, § 187.
268. Let us suppose that by the law of a state fishing in
territorial waters is reserved to citizens, and in a special treaty
concluded with another state the right of fishing is granted to the
citizens of that state. If, in the commercial treaty concluded with
another state the right of fishing is not expressly reserved to citi-
zens, and if the treaty contains the clause under which the con-
tracting parties are assured the privileges of the most favorec
nation, the reservation based on the law granting citizens alone the
right to fish in territorial waters should not be considered as im-
pliedly renounced on the ground that the right of fishing has been
granted in a treaty concluded with another state.
180
INTERNATIONAL LAW CODIFIED
The French law of March 1, 1885 prohibits foreigners from fishing in the
territorial waters of France and Algeria and reserves this right to French
citizens. Now, let us suppose that a state, such as France, reserves fishing in
its territorial waters to its citizens and that, afterward, by a treaty concluded
with state A, it stipulates that fishing in the respective territorial waters shall
be permitted under reciprocity to the citizens of the two contracting parties.
Let us suppose, furthermore, that in a later treaty concluded with state B
there is inserted the most favored nation clause. In such instances, could it
be held that, by reason of such clause, the citizens of state B could claim the
right of fishing conceded to state A? Derogations from the general law reserv-
ing fishing to citizens may only be sought in a special law, and as special laws
derogating from the general law are strictly interpreted, it cannot be admitted
that the derogation contained in the special concession to state A should
apply to other powers. It would in fact require another special express pro-
vision in favor of another state to furnish a derogation in its favor, from the
general law reserving fishing in territorial water to citizens.
269. The sovereign of every state also has the right to reserve
the coasting trade to citizens. This right must be considered as
reserved, whenever it has been established by law or custom and no
derogation therefrom has been suffered by treaty.
The expression "coasting trade” denotes the transportation of merchandise
and passengers between two parts of the same state. This trade as a rule is
reserved exclusively for national ships. We believe, however, that as the right
of free, peaceful navigation over the territorial sea is now conceded, the
privilege cannot be sustained'except by virtue of a special law of the state or
established custom. The rule reserving the coasting trade to citizens is gen-
erally adopted in all European states; in Germany, by the law of May 22, 1881,
in Spain, by the ordinance of July 15, 1870, and in France, by the law of April 2,
1889. In England, an order in council prohibits the coasting trade to vessels of
countries which do not admit reciprocity. In the United States, foreign vessels
are absolutely excluded from the coasting trade. On the other hand, in Bel-
gium, the coasting trade is free because there is no law prohibiting it. In
Italy, by the law of July 11, 1904, no. 167, the coasting trade is reserved to the
national flag, provided no special conventions or treaties stipulate otherwise.
Compare: Oppenheim, International law, v. I, S8 187–188.
C .
270. The State has the right to regulate transit in territorial
waters in order to provide for the necessities of its defense and to
protect its fishing interests and to prohibit the transportation of
certain goods (arms, ammunition, alcohol, etc.) and in general any
transportation which may be suspected of violating the customs
laws. It may, therefore, subject foreign vessels entering territorial
waters to visit and inspection in order to prevent any violation
of the laws and regulations against smuggling.
This rule may find application with respect to the trade in fire-arms, muni-
tions of war and alcoholic drinks intended for Africa. Since experience has
RIGHT OF IMPERIUM
181
proved that the importation of such goods greatly imperils the security of the
states which exercise rights of sovereignty or protection in Africa, it was
agreed that, independently of the agreement concluded under the general
Act of the Conference of Brussels of July 2, 1890, any state could by law
forbid the transportation of such merchandise in the territorial waters of its
African possessions and declare it smuggling and punish it as such.
271. The right of control and patrol of a state over its territorial
waters may be properly exercised by subjecting merchant vessels
suspected of carrying on smuggling to the visit of its war vessels
or those specially designated for the purpose, and by applying
the penalties provided by law (fines, confiscation of merchandise,
etc.) to those found guilty of that offense.
The application of police measures and regulations shall always
be permissible in the territorial waters of any state for the protec-
tion of its fishing interests and the observance of its customs laws.
A special law is indispensable for the exercise of such a right; because the
application of penalties is not, in principle, admissible without a statute.
Great Britain has a special law on this matter, that of August 28, 1833, which
prohibits the violation of customs regulations. Under this law, merchant ves-
sels found in British territorial waters are considered as suspects whenever
they deviate from their route to their port of destination and cannot justify
such deviation by the condition of the weather and sea. They may be liable
to penalties to the extent of confiscation of their merchandise, when they
fail to comply with the notice to retire within 48 hours. In France, they
apply the law of Germinal 4, year 2, article 7, title 11, which provides the
penalty of confiscation of goods whose importation into France is prohibited,
when these goods are found on board a merchant ship in French territorial
waters, and which inflicts, besides, a fine of 500 francs on the captain of such
vessel.
EXTENT OF THE TERRITORIAL SEA
272. By customary law, territorial waters extend three sea
miles from low water mark.
Nevertheless, we must recognize the common advantage in
extending the territorial sea to at least five miles from the coast, so
as more effectively to safeguard the rights of the littoral states.
The three mile limit is at the present time considered as generally fixed to
determine the maritime zone over which a state may exercise its jurisdiction.
See Calvo, Droit international public, $ 355, 4th ed., 1887. “This zone," he
says “is the limit which has been generally recognized by international con-
ventions, notably by article 1 of the treaty of October 20, 1818, between Great
Britain and the United States; by the Belgian law of June 7, 1832; by articles 9
and 10 of the treaty of August 2, 1839 and article 1 of the treaty of Novem-
ber 11, 1867, between France and Great Britain.
To-day, the tendency is to extend the limit of the territorial sea especially
182
INTERNATIONAL LAW CODIFIED
with a view to insuring a better defense, the necessities of which have grown
greater by reason of the progress in the means of attack and the range of guns.
Nevertheless, an international convention is needed to modify customary law.
The government of the Netherlands, in 1895, took the initiative in negotiating
for an extension of the territorial sea to six miles from the coast. This was also
the proposition advanced by the Institute of International Law in 1894 at
the Paris session.
273. No state can by a special law extend the territorial sea
beyond the limits established by customary law.
If, however, a state has proclaimed by municipal law that its
territorial waters in the matter of the exercise of police and fishing
jurisdiction, are to be considered as extending beyond three miles
(six at the utmost) and if the other states have not protested,
the state's exercise of police jurisdiction and supervision of customs
within the limits thus fixed cannot be disputed, unless a court of
arbitration decides to the contrary.
Certain states have, in fact, extended the limits of the territorial sea from
the point of view of the dominion which they claim over it. Great Britain
proclaims and exercises its right of supervision to twelve miles from the coast.
In France, the zone for the supervision of customs was carried to two myria-
meters by the law of March 27, 1817 (art. 13). We cannot admit, however,
that the rules of international law can be modified by a unilateral act.
Nevertheless, we may observe that, on the one hand, the majority of publicists
recognize the necessity of extending the territorial sea to at least five sea miles
from the coast, and that, on the other hand, certain states, in fact, have by
municipal law enlarged the limits of their territorial waters for the exercise of
their jurisdiction. Under such circumstances of fact, it would seem that, al-
though not admitting that a state may assume the right to modify by a mu-
nicipal law the rule of international law relating to the width of the territorial
sea without exposing itself to the just protests of the other powers, yet it may
be said that everyone may rely upon the common opinion of writers and on
fact, to practice what others practice. In this way, the adoption of a different
customary law as regards the extent of the territorial sea may gradually be
arrived at, or else, on account of the just protests of third powers, the necessity
will arise of referring to the decision of an arbitral court the question as to
whether or not a state may assign a greater extent to its territorial sea for
the exercise of its jurisdiction. Of course, through its award, the Court would
lay down a rule obligatory on all the states until such time as they may agree
to establish rational rules for determining the extent of the territorial sea and
their reciprocal rights in relation to it.
274. The territorial sea can be extended by a treaty designed
to regulate the application of customs laws and the reciprocal
right of supervision and control of the respective governmental
authorities of the contracting states.
Such conventional extension should be deemed operative only
between the contracting parties.
RIGHT OF IMPERIUM
183
See the Anglo-American treaty of October 20, 1818, those between France
and Great Britain of August 2, 1839 (arts. 9 and 10), and November 11, 1867
(art. 1), and the treaty between France and Mexico of November 27, 1886, by
which it was agreed to extend respectively the territorial sea to 20 kilometers.
Compare: Ortolan, Règles internationales et diplomatie de la mer, 1864, livre II,
ch. VIII, v. I, p. 159. Pradier-Fodéré, Droit internat. public, v. II, § 633;
Bonfils, op. cit., $ 492. Cf. Oppenheim, International law, v. I, 2d ed., pp.
235 et seq., $$ 176-197.
275. As regards bays, the distance of three sea miles shall be
reckoned from a straight line drawn across the bay where its shores
converge to a distance of six marine miles.
JUST LIMITATIONS OF THE RIGHT OF DOMINIUM
1
276. The eminent domain which every state has in its territorial
waters cannot be considered as a right of property. Since its
object is the security and the defense of the general and individual
interests of its citizens, it must be limited by its purpose.
277. Every state is bound to exercise its right of domain over
territorial waters in such a manner as not to injure the rights of
vessels who make a peaceful and harmless use of such waters for
the purposes of navigation. It is a universal right, in times of
peace, freely to traverse territorial waters in order to reach the
open sea.
278. No sovereign has the right to subject merchant vessels
crossing territorial waters to the payment of fees, under any
form whatever, for the right of transit or navigation, nor by law
or regulation render transit oppressive and difficult.
RIGHT OF SOVEREIGNTY OVER PORTS AND ROADSTEADS
279. Every sovereign exercises dominion over his seaports.
He can, therefore, by law and regulation, regulate the police of
ports, anchorage, the loading and unloading of ships and the secur-
ity and custody of goods. He can, moreover, require those who
enter in order to transact business to pay dues for tonnage, light-
house, port, pilotage and similar dues. Nevertheless, the more
favorable treatment granted, under existing treaties, to the ships
of certain countries must not be considered as contrary to inter-
national law.
280. It is the privilege of the sovereign of a state to declare
184
INTERNATIONAL LAW CODIFIED
seaports open or closed to commerce. However, when they are
declared open, the merchant vessels of all countries must, under
the guaranties of international law, be permitted to enter, subject
to the observance of territorial laws and regulations and the obli-
gation to pay the necessary fiscal taxes and duties.
281. Every sovereign may, for reasons of public policy, forbid
war vessels to enter the ports of the state. When he allows them
to enter port and to remain in territorial waters, he may impose
on them such conditions as he may deem appropriate.
282. In no case can the sovereign refuse entrance to ports, even
those closed to commerce, nor to roadsteads, to vessels forced to
take refuge therein by stress of maritime disaster or any other case
of force majeure.
It is the duty of the State to consider such vessels as under the
protection of international law so far as concerns the ownership
of the vessels and cargoes, to treat them according to the dictates
of humanity and, saving the precautions which might be deemed
necessary to avoid and prevent imposition, to grant them, subject
to the observance of local laws and regulations, the means to re-
pair their damages and to do everything that may be necessary to
enable them to proceed on their voyage.
The rules proposed with regard to ports are based on the just concept that
ports are part of the public domain of the State, a fact which makes it neces-
sary to admit the eminent domain of the territorial sovereignty with respect
thereto and the right of such sovereignty to subject their use and enjoyment
to certain conditions, especially the payment of certain dues to the Treasury.
Roadsteads are like natural ports; they must be considered as a dependency
of the territory and the eminent domain which resides in the state must
comprise them. The British Admiralty sought to include within the domain
of Great Britain wide expanses of sea enclosed by the British coasts which it
called "narrow seas," "King's Chambers.” But such a claim is not justifiable.
The rules concerning gulfs must be applied to roadsteads of considerable
extent. In the treaty between France and Great Britain of August 2, 1839,
relating to fishing in the English Channel, it is provided in article 5 that
bays less than ten miles wide must be considered as dependencies of the
territory.
RIGHT OF SOVEREIGNTY OVER GULFS AND LAKES
283. Gulfs should be considered within the eminent domain of
the territorial sovereign when their width does not exceed the
range of a cannon-shot. Otherwise, they must be assimilated to
RIGHT OF IMPERIUM
185
the open sea, applying the rules governing the extent of and juris-
diction over territorial waters.
The rule proposed is based on the theory that every state must provide for
its safety and defense. We must, besides, bear in mind that the sea cannot
be considered as within the domain of any state because of the impossibility
of acquiring exclusive possession of it. Now, this possession is possible with
respect to gulfs where entrance and egress may be prevented by means of
cross fire from the guns of a battery on the two opposite coasts. On the other
hand, it is natural that in the absence of such circumstances, the gulf must
be assimilated to the open sea by fixing the limits of territorial waters according
to existing customary law, or at six miles, when that new distance proposed
shall have been adopted by international convention.
284. The right of sovereignty over lakes situated on the bound-
ary of two states extends, on the part of each riparian state, to the
middle of the lake.
RIGHT OF SOVEREIGNTY OVER STRAITS
285. The right of sovereignty of the state in possession of both
shores of a strait should be considered as limited to its power to
patrol navigation therein and to do whatever is necessary for
the safety and defense of the state.
286. No sovereign, by virtue of his power of control, can subject
ships passing through a strait to the payment of passage and
transit dues, or prevent the peaceful use of the strait. He can
merely ask to be indemnified for the expenditures incurred to
maintain the strait in a condition of navigability and to assure the
safety of commerce.
Denmark for a long time imposed on merchant vessels crossing the Sund
and Belt Straits on their way to the Baltic Sea, the payment of passage dues.
These dues, fixed and recognized for the first time in the treaty concluded in
1645 between the Danish Government and the States General of the United
Provinces of the Netherlands were later admitted by other states, especially
by France in the treaties of 1663 and 1742. Subsequently, as the amount of
the dues thus collected by Denmark exceeded considerably the expenditures
of the navigation service and as those dues amounted to veritable taxes upon
passage at the expense of international trade, just protests against this
abuse, especially by the United States, resulted in a convention, March 14,
1857, between Denmark on the one hand and Austria, Belgium, France,
Great Britain, Hanover, Mecklenburg-Schwerin, Oldenburg, the Netherlands,
Prussia, Russia, Sweden and Norway, the Hanse towns of Lubeck, Bremen
and Hamburg, on the other. Under this agreement the dues for passage were
redeemed for the sum of 91,434,975 francs.
Compare the rules formulated in Book III, On the liberty of straits.
186
INTERNATIONAL LAW CODIFIED
RIGHT OF SOVEREIGNTY OVER INLAND SEAS
287. The right of sovereignty over inland seas is subject to the
rules which apply to the high sea, except for modifications estab-
lished by international treaties.
No sovereign can consider an inland sea to be within his domain,
although he possesses all the coasts that surround it and the
strait by which it communicates with the ocean, under the pre-
tense of his power to prevent access thereto with his guns.
While the straits of the Bosphorus and the Dardanelles are under the domain
of Turkey, she cannot consider the Black Sea as within her domain, even
when she had possession of all the coasts bounding the sea.
See the various phases relating to that sea and the conventions signed to
regulate its navigation in Bonfils-Fauchille, 3d ed., $$ 499 et seq.; see also the
statements there in regard to the Baltic and Behring seas.
See also Oppenheim, op. cit., v. I, p. 603:
“The declaration exchanged on May 16, 1907, between France and Spain,
on the one hand, and on the other hand, between Great Britain and Spain,
concerning the territorial status quo in the Mediterranean ... [and that]
concerning the maintenance of the territorial status quo in the North Sea,
signed at Berlin on April 23, 1908, by Great Britain, Germany, Denmark,
France, Holland, and Sweden . (and another, of like date), signed at St.
Petersburg by Germany, Denmark, Russia and Sweden “concerning the
territorial status quo in the Baltic."
C
RIGHT OF SOVEREIGNTY OVER RIVERS
288. The sovereign of every state has the right of sovereignty
and domain over rivers and canals which, throughout their entire
course, traverse the territory of the state. He may, consequently,
determine the conditions under which foreign vessels may be
allowed to make use of these waters for commercial purposes.
289. The right of sovereignty and domain over a river which
crosses several states, resides in the state crossed by the river over
all that portion of its course which passes through its territory.
This right must always be exercised without impairing in any way
the freedom of navigation and the rights of riparian states, which
find themselves in natural community with respect to the use of
the waters.
290. The right of sovereignty and domain with regard to a river
which separates two states must be considered as belonging to each
state up to the middle of the river, following the line called thalweg.
Compare the rules relating to navigable rivers and to territorial limits and
boundaries in Book III.
RIGHT OF IMPERIUM
187
RIGHT OF SOVEREIGNTY OVER MOVABLES IN THE TERRITORY
291. Everything actually in the territory of the state, considered
in itself and independently of the persons to whom it belongs,
must be deemed subject to the right of imperium of the territorial
sovereign.
292. The sovereign of the state has the right to regulate the
legal condition and possession of things both personal and real, and
the just limits to the free exercise of the right of property in its
relations with general interests and with the protection of social
rights and of the rights of third parties.
293. No right over property in the territory of the state can
become effective except as a result of a law of the territorial sov-
ereign and in conformity with that law.
No legal relation concerning things located in the territory
of the state shall be held effective, if the result entails a deroga-
tion from the laws of public policy relating to property or from
public municipal law.
Even when the right over a thing located in a country must be held to be
based on a foreign law, such right may be effective as jus ad rem, but the real
right proper, the jus in re, from which arises a real action, can be acquired
only in conformity with the provisions of territorial law. In fact, the territory
with all it contains must be considered as the basis and limit of sovereignty
and of the real jurisdiction of any sovereign.
See infra, Book III, Property belonging to private individuals, in its relation to
international law. Compare: Fiore, Diritto internazionale priv., 4th ed., v. I,
parte generale, cap. III, p. 100: Della legge che deve regolare i diritti reali;
Diena, I diritti reali considerati nel Diritto internazionale privato, Torino,
Unione Tip.-Editrice Torinese, 1895.
294. No act of execution upon things located in the territory
of the state can take place either by virtue of a foreign law, or of
à contract made in a foreign country, or of a judgment pronounced
by a foreign court. It is necessary that the acts of execution be
previously authorized by the territorial sovereign in conformity
with his municipal law.
The executory force of acts rests solely upon the sovereign power possessed
by the sovereign of the state where the executory acts must take place. It is,
in fact, by reason of the order given in the name of the sovereign to his public
officers that the latter may carry out the execution. It is evident, therefore,
that, as the right of imperium belongs exclusively to the territorial sovereign,
the exercise of imperative power on the part of a foreign sovereign cannot
be admitted.
TITLE XI
RIGHT OF JURISDICTION
JURISDICTION AS A RIGHT OF THE SOVEREIGN
295. Jurisdiction which, by international law, belongs to the
sovereign of each state, consists in the faculty to exercise the judi-
cial power and to submit to the courts legally established by him
differences between persons relating to their reciprocal rights and
obligations, to the exercise of their rights over things, and to ques-
tions of all kinds which must be referred to the decision of the
competent judges.
In order to distinguish jurisdiction as a right of the state, from jurisdiction
and competence as powers assigned to judges, compare rules 206-208.
JURISDICTION OF COURTS IN CRIMINAL MATTERS
296. Jurisdiction of courts in criminal matters must be con-
sidered as based on criminal law, which has, in principle, an im-
personal and absolute territorial authority.
Whoever, in the territory of the state or in places assimilated
to it, commits an offense under the law must be indicted and pun-
ished by a sentence of a competent judge.
JURISDICTION EXERCISED BY THE COURTS OVER GUILTY PERSONS
When, however, the author of an offense committed on the
territory of the state happens to be a foreigner who has already
been tried by the courts of his country, it should be considered in
accordance with the principles of equity and international justice,
when necessary to prosecute him, to take into consideration
the penalty already pronounced by the foreign courts.
The jurisdiction of the courts of the state of the place where the offense
was committed cannot as a rule be denied. But if the concurrence of the
territorial and extraterritorial jurisdictions is admitted, as is done in certain
188
RIGHT OF JURISDICTION
189
cases, it is necessary for the legislature of each country to determine, in ac-
cordance with just principles, when the prosecution should be resumed and
in what measure account should be taken of the penalty already inflicted and
suffered. Compare: Fiore, Effetti internazionali delle sentenze penali, materia
penale, Turin, Loescher, 1877, ch. III, and Droit pénal intern., translated by
Charles Antoine, Paris, 1880.
EXTRATERRITORIAL AUTHORITY OF CRIMINAL LAW AND COMPETENT
COURT
297. Criminal law can have extraterritorial authority only when
the violation of the right protected by the law is the result of an
offense committed in a foreign country.
In such case, the right of the sovereign of the state to bring the
offender before his courts and to punish him in accordance with
his laws must be admitted.
It is important not to confuse the extraterritorial authority of criminal law
with the institution of a criminal action, which is the immediate consequence
and effect of that law. The extension of the authority of criminal law to
offenses committed abroad which violate certain rights cannot be considered
contrary to the principles of international law and to the reciprocal inde-
pendence of states. Such a principle would certainly not justify the institu-
tion of a criminal action in a foreign country, but only the jurisdiction of the
courts of the state with respect to the offender, with the power to pronounce
against him the penalties provided for the legal protection of the right violated.
Compare: Fiore, Effetti internazionali delle sentenze penali e della estradizione,
ch. II: Della giurisdizione penale relativamente ai reati commessi all'estero, n. 12
et seq.; and Traité du Droit pénal international, translated by Charles Antoine,
v. I: Du droit de réprimer les délits commis hors du territoire de l'Etat, n. 43 et
seq., Paris, 1880.
298. Extraterritorial authority may be assigned to criminal law
with regard to the following offenses:
a. Offenses against the safety of the state and public credit;
b. Offenses against property or persons, when the criminal has
gone to a foreign country where the offense is not punished in
order to perpetrate it in fraud of the law of the original coun-
try which declares such act to be punishable.
c. Receiving stolen goods, when the objects stolen in the state
have been fraudulently carried into the territory of another
state;
d. Complicity on the part of an individual living abroad, who
has by order, advice or inducements led the offender to com-
mit the offense in the state.
190
INTERNATIONAL LAW CODIFIED
299. Every state has criminal jurisdiction over any act con-
sidered an offense according to international law.
Such offenses are:
a. Piracy and any act relating thereto;
6. The destruction or injury of submarine cables or of any por-
tion of the apparatus belonging thereto;
c. The destruction or injury of an international railroad, or of
canals or public works intended for the common use of states,
committed willfully in time of peace or by an unauthorized
person in time of war.
PIRACY IN RELATION TO CRIMINAL JURISDICTION
1
300. By piracy we understand any violent act committed on
the high sea for the purpose of robbery or depredation, by a ship
not provided with a license or letters of marque emanating from a
recognized government, and when the offense is directed indis-
criminately against the ships of any country.
Compare: Oppenheim, International law, v. 1, $8 275, et seq.
301. We cannot characterize as piracy the acts of a ship which
has been commissioned by a government to commit acts of vio-
lence or depredation against the ships of a certain country, even
though the captain of the ship may have exceeded the terms of his
commission. Nevertheless, the author of such acts should be held
responsible, even criminally, for having exceeded the limits of his
commission, and in like manner, the government which commis-
sioned him must always be considered responsible.
302. When, on board a ship carrying the flag of a recognized
nation, mutinous members of the crew commit acts of plunder,
depredation, murder and assault, such facts cannot be charac-
terized as acts of piracy and the ship must remain subject to the
jurisdiction of the state whose flag she flies. When, however, the
mutineers, having assumed command of the ship, have broken off
all relations with the home state and have ceased flying its flag, the
acts committed by them would be deemed acts of piracy accord-
ing to rule 300.
See Phillimore, v. I, 357, stating a case which took place in Chilean waters
and to which the present rule may apply.
RIGHT OF JURISDICTION
191
303. International criminal jurisdiction for the crime of piracy
can be admitted only when the act charged meets all the condi-
tions necessary to piracy under the principles of international law.
The municipal law of a state which denominates as piracy
certain acts not considered to be such by international law, can-
not be applied against aliens to assign to those acts a piratical
character and justify the jurisdiction of the state which enacted
the law.
1
Piracy in international law must not be confused with the crime of piracy
so qualified under the municipal law of a state. Thus, for example, under
British law, any British subject is considered a pirate who, in time of war, aids
or assists at sea the enemies of the king or who transports slaves on the high
(See Stephens, Criminal Law, arts. 104-117.) It goes without saying
that under this law, only British subjects who violate the laws of their sover-
eign can be sentenced for piracy.
Compare: Oppenheim, International law, $ 280.
seas.
304. The pirate ship, whether or not she flies the flag of a state or
keeps log-books, is subject to the jurisdiction of any state that has
her in its power.
305. Whoever possesses proof that a ship is guilty of piracy, or
has serious reasons for suspecting her, has the right to seize her,
but must conduct her into the port of a state for trial.
If the acts of piracy were committed in the territorial waters of
a state, the jurisdiction of that state should be recognized in pref-
erence to any other.
CRIMINAL JURISDICTION OVER TERRITORIAL WATERS
306. It is incumbent upon states to determine in common ac-
cord the extent of territorial waters with respect to criminal juris-
diction.
In principle, the complete assimilation of territorial waters to
the landed territory, from the point of view of the authority of
criminal law over offenses committed in the said waters and the
resulting criminal jurisdiction, should not be admitted.
307. In the absence of an international agreement, every state
can by law establish rules for the exercise of criminal jurisdiction
over offenses committed within its territorial waters.
In Great Britain, this matter is regulated by a law of 1878 (An act to regulate
the law relating to the trial of offenses committed on the sea within a certain dis-
192
INTERNATIONAL LAW CODIFIED
tance of Her Majesty's dominions, 41 and 42 Vict., c. 73). Article 7 of this
law reads: “And for the purpose of any offense declared by this Act to be
within the jurisdiction of the Admiral, any part of the open sea within one
marine league of the coast measured from low water mark shall be deemed
to be open sea within the territorial waters of Her Majesty's dominions."
This law was enacted following the discussions arising out of the collision
owing to negligent navigation of the German ship Franconia, at a distance of
about three sea miles off the English coast. The killing of a sailor having been
proved and charged against the captain of the vessel, the claim was made
that the English law was applicable and that the High Court of Admiralty
had jurisdiction of the case. At that time, that is in 1877, no statute relating
to this matter existed in Great Britain and the discussions involved the gen-
eral principles of law. Phillimore, a judge of the High Court, held, with much
reason, that from the point of view of criminal jurisdiction, territorial waters
could not be assimilated in all matters to the landed territory. (See Regina v.
Keyn, 2 Ex. D. 63.]
At the time of the debates on the law of 1878, the principle which it was
intended to sanction was bitterly opposed both in the House of Lords and in
the House of Commons. In the latter, the law was opposed by Sir George
Bowyer. Phillimore persistently held that the British Parliament could not
establish a criminal jurisdiction in opposition to international law, and that
was the opinion held by the Lord Chief Justice.
308. It must always be considered in conformity with the most
just principles of international law to admit the criminal jurisdic-
tion of the state over offenses committed in territorial waters within
a mile from the coast measured from low water mark, and beyond
that limit, to assimilate territorial waters to the high sea from the
point of view of criminal jurisdiction.
This rule is based on the idea and ultimate purpose of the penalty. The
political alarm and damage which justify the penal sanctions necessary for
the legal protection of violated rights, cannot arise from acts which are com-
mitted at a great enough distance from the coast to exclude any idea of threat-
ening the public safety of the territory of the state.
CRIMINAL JURISDICTION OVER MERCHANT VESSELS
309. Criminal jurisdiction over merchant vessels for offenses
committed thereon, must be assigned to the state which gives the
vessel its nationality. This jurisdiction holds, even when the ship
is in foreign territorial waters and ports, provided, however, that
the offenses committed on board have no exterior consequences
and do not affect the patrol of territorial waters or territorial
public order.
310. The territorial sovereign has criminal jurisdiction whenever
RIGHT OF JURISDICTION
193
the offenses, even if committed on board a foreign vessel, have or
may have external consequences.
This is illustrated principally in the following cases:
a. When an offense, although committed on board among
members of the crew, may endanger the public safety or
tranquillity;
b. When the offense was initiated outside the ship and termi-
nated on board;
c. When the commander of the vessel is unable to prevent or
punish the offense and requires the intervention of the local
authorities.
311. With regard to serious offenses against "common" law
which are committed on board without having any exterior conse-
quences, the territorial state may be granted the right to intervene
in order to proceed with the necessary preliminary examinations to
preserve the proofs and the corpus delicti, reserving the surrender
of the guilty person to the courts of the state to which the vessel
belongs, in order that he may be tried in conformity with the law
of that state.
The French Court of Cassation said in the Jally case: “In view of the fact
that merchant vessels, entering the port of a nation other than that to which
they belong, cannot be subjected to the territorial jurisdiction whenever the
interests of the territorial state are involved, without danger to the public
order and dignity of the Government. . (Cass. Feb. 25, 1859, Journal
du Palais, 1859, 420.) See the comments of the reporter and the note. Cf. the
decisions of American courts in Fiore: Diritto intern. pubblico, 4th ed., v. I,
$$ 513 et seq. and Calvo, Droit intern., $$ 462 et seq. (see Wildenhuis' case, 120
U. S. 1].
312. Before undertaking to assume jurisdiction of foreign vessels
in territorial waters, the local authorities must advise the consul
or consular representative of the state to which the vessel belongs
and undertake no act without his intervention, whenever con-
veniently possible.
This rule is based on the general principle of international law that consuls
are the natural protectors of the citizens of the state which has appointed
them and of their commerce. Article 12 of the consular convention between
Italy and France reads as follows: “It is agreed that judicial officers and cus-
toms officers and employees shall not conduct examinations, visit or search on
board vessels without being accompanied by the Consul or Vice-Consul of the
nation to which the vessel belongs; they shall also give opportune notice to
said consular officers in order that they may be present when captains or
members of the crew of vessels make depositions or declarations before the
194
INTERNATIONAL LAW CODIFIED
1
courts and local administrative authorities, in order thus to avoid any error
or misinterpretation which might interfere with the proper administration
of justice.
The citation which for this purpose shall be served upon the Consuls or
Vice-Consuls shall indicate a certain day and hour, and if the Consuls or Vice-
Consuls fail to appear, personally or by a representative, the proceedings
shall continue in their absence."
CRIMINAL JURISDICTION WITH REGARD TO WAR VESSELS
313. A war vessel is one of any form and size authorized under
the law of the state to which she belongs to fly the military flag
and placed under command of an officer of the navy.
314. The territorial sovereign cannot exercise jurisdiction over
a war vessel which, with its consent, has entered territorial waters;
nor can it interfere with acts which occur on board the vessel, even
when very serious offenses are committed on board by members of
the crew.
The state has the right merely to require the observance of the
conditions under which it has granted permission to enter its
territorial waters.
315. The commanding officer of a foreign war vessel which en-
ters territorial waters to perform an act violative of the rights of
the state, under the orders of his government, shall not be per-
sonally subject to criminal jurisdiction therefor.
The territorial sovereign must consider the state to which the
vessel belongs as responsible and may do everything necessary for
the national defense and protection of its rights. It may, accord-
ingly, treat the vessel as an enemy vessel.
316. A foreign war vessel which, without commission or tacit
authorization of her government, has entered territorial waters
in order to perform acts in violation of the rights of the state, may
be subjected to the jurisdiction of the territorial sovereign. The
latter has the right to prosecute the offenders, or to demand that
they be punished by the state to which the vessel belongs and may
consider the vessel as a material instrument and treat her as an
enemy. That sovereign cannot, however, hold the state responsi-
ble by applying to it the laws of war, when it is proved that the
foreign government was not aware of the criminal designs of
the ship's commander or had done its best to prevent their
execution.
1
RIGHT OF JURISDICTION
195
See the decisions of the Court of Aix, of August 6, 1832, and of the French
Court of Cassation, of September 7, 1832, in the celebrated case of the ship
Carlo Alberto, and the important speech of Tupin for the prosecution in
Journal du Palais, 1832, p. 1457. See also the diplomatic correspondence be-
tween the government of Sardinia and the two Sicilies in the well known case
of the ship Cagliari in June, 1857, and Fiore, Droit pénal international, v. I,
no. 15.
317. The government can subject foreign war vessels which
enter the territorial waters of the state to the laws governing
health, harbor rules and the rules of navigation.
318. The territorial sovereign always has the right to exercise
criminal jurisdiction over the crew of a foreign war vessel for
offenses committed by them on land, provided however, that the
local authorities succeed in arresting the guilty persons before their
return on board the vessel or the ship's boat.
So long as the person accused of an offense against "common”
law, although a member of the crew of a foreign war vessel, is on
the territory of the state, the right of the territorial state to arrest
such person in order to arraign him before its courts and to punish
him in conformity with "common" law cannot be limited.
Compare the decision of the French Court of Cassation February 29, 1868,
in the case of the sailor Der, of the British sloop of war Pearl and the important
speech of the Public Prosecutor in the Journal du Palais, 1868, p. 905.
319. The territorial state may exercise criminal jurisdiction
over a foreign war vessel in its territorial waters whenever there
occur on board offenses with respect to which the criminal law
is assigned an extraterritorial authority, and it is consequently
urgent to arrest the offender and to prosecute the ship's commander
so as to make sure of having him.
The exercise of jurisdiction must likewise be admitted when the
commander of the foreign vessel himself requests the intervention
of the local authorities; or when the commander has lost his au-
thority, owing to a mutiny of the crew which may greatly endanger
the public peace and security.
Our rule tends to maintain in its legal sphere the privilege of extraterrito-
riality recognized by international law in favor of war vessels. No other juris-
diction can, in principle, be admitted over such a vessel, which is a floating
fortress, except that which belongs to the naval commander and which he
exercises by virtue of the laws of the state to which the vessel belongs. This
commander represents the sovereign of his state, which consequently excludes
any act of sovereignty by a foreign government. Nevertheless, it may be
196
INTERNATIONAL LAW CODIFIED
found necessary to limit the privilege of extraterritoriality by its very purpose.
Let us suppose that the commander of a war vessel in territorial waters should
take advantage of his situation to commit grave offenses on board, such as the
falsification of the state's seals, money or bonds of its public debt, or that the
war vessel should become a refuge where “common” law offenses are com-
mitted (excitation to revolt by means of publications secretly printed). It
would be impossible in such cases to deny the sovereignty of the state thus
offended the right to repress such offenses and to punish their authors.
The same rule would govern if the commander had lost his authority; or
if a mutiny had broken out rendering the commander powerless to assert
his authority and the war vessel were therefore in a state of anarchy.
320. In the cases covered by the foregoing rule, the state to
which the vessel belongs may request that the offenders, who are
in the custody of the territorial authorities, be delivered to it for
trial by its own courts; but it must request and obtain their ex-
tradition.
JURISDICTION OVER ISLANDS
321. Criminal jurisdiction of offenses committed on islands
which do not belong to any state should be assigned to the state
of which the offender is a citizen.
ORDINARY JURISDICTION OVER MERCHANT VESSELS
322. Jurisdiction over foreign merchant vessels which enter
territorial waters or ports must be assigned, in principle, to the
sovereign of the state to which such waters or ports belong.
It is incumbent upon foreign merchant vessels to recognize
the authority of the police laws and all regulations there in force
relating to:
a. The entrance and departure of vessels;
b. Anchorages and moorings;
c. The embarkation and landing of passengers;
d. The loading and unloading and storing of goods and ballast;
e. The use of signal lights and precautions against fire;
f. Everything relating to the police and security of the port or
roadstead and its dependencies.
323. It is incumbent upon the territorial sovereign to extend
equal treatment in the application of the relevant laws and regu-
lations, to foreign vessels entering an open port, subject to excep-
tions which may arise from treaties.
RIGHT OF JURISDICTION
197
That sovereign, moreover, must allow the authorities of the
country to which the vessel belongs to exercise their powers with
respect to the vessel in conformity with applicable treaties and
common” law.
This rule refers to the exercise of the powers of consuls and consular agents
with respect to the merchant vessels of their country. Under the Italian
consular law (art. 26), Italian consuls may inflict on Italian seamen disci-
plinary punishment for breaches of discipline committed by them on board;
they have, besides, other duties under Italian laws and regulations.
324. The laws of the state to which the ship belongs must govern
her legal status everywhere as an object of property, with regard
to her valid transfer, the obligations and responsibility of her
owners, and the relations between her commander and crew, ex-
cept for the rules of private international law which must govern
private relations and the rights acquired over the ship by creditors
in the country where she may happen to be.
The foregoing rules are based on the principles expounded by writers and
on the decisions of the courts, as more fully set forth in the following works:
Fiore, Trattato di diritto internaz. pubblico, 4th ed., 1905, v. II, SS 984 et seq.,
and 2d ed. translated into French by Charles Antoine, Paris, 1885, $$ 535
et seq.; La nave commerciale nei suoi rapporti col Diritto internazionale, in the
periodical La Legge, 1882 (theoretical and practical studies), p. 317; 4th ed. of
the aforesaid work: Trattato di Diritto internaz. pubblico, v. I, $$ 513-520, and
v. II, 98 984 et seq.; Calvo, Droit internat., v. I, $$ 459 et seq.
At the Congress of Antwerp of 1885, the following rule was adopted: “The
powers of the captain to provide for the pressing needs of the vessel, to mort-
gage or sell her, or contract a bottomry loan are determined by the law of the
flag, except that, in matters of form, he must be governed either by the law
of the flag or the law of the port where the transactions are undertaken.”
325. The powers of the captain, both with respect to the persons
on board the vessel and to the vessel herself and the measures and
acts which he may prescribe or order for purposes of navigation,
must be determined by the national law of the vessel; subject,
however, in matters relating to the exercise of such powers in
territorial waters, to compliance with the special provisions of the
local law.
Compare the opinion of the French Council of State of November 20, 1806,
with respect to the offenses committed on the American ships the Newton
and the Sally, and Vincent, Dictionnaire de droit international privé, v. I, 1887–
1889, word Navire, p. 616.
326. All disputes of a private nature which may arise between
the captain, members of the crew and persons not connected with
ܘܘܘ
198
INTERNATIONAL LAW CODIFIED
the vessel, are within the jurisdiction of the territorial state or
of the state to which the vessel belongs, according to the prin-
ciples of "common law," and all questions relating to the pay-
ment of dues, taxes and duties owed by the foreign vessel, are
to be settled by the territorial jurisdiction in conformity with the
rules of "common law” in force in the country where the vessel
is located.
JURISDICTION RELATING TO MAIL STEAMERS
327. Vessels engaged in the postal service, whether they belong
to the state or to a private concern, must be considered under the
protection of international law with respect to all matters con-
cerning the postal service.
Jurisdiction over mail steamers must be governed by the rules
established by treaties. In the absence of treaties, it must be
exercised within just limits and with the restrictions which, under
“common" law, must be considered as inherent in the service and
in the international interests likely to suffer from a lack of regu-
larity in the mails.
328. It should be deemed more conformable to common” law
to assimilate mail steamers to war vessels than to merchant vessels
and to refrain from any assumption of jurisdiction over or police
measure against them which is not based upon urgent necessity.
329. A government which, without grave and urgent reasons,
delays the sailing of a mail steamer, may be held liable for the
actual damages incurred through the delay by private individuals.
In several conventions, mail steamers are assimilated to war vessels.
In the postal convention between Italy and France, of March 3, 1869, the
following provision may be found (art. 6):“When mail steamers employed by
the postal authorities of France or Italy for the carriage of mails in the Medi-
terranean are national vessels owned by the state or vessels chartered or sub-
ventioned by the state, they shall be considered and received as war vessels
in the respective ports of the two countries to which they ply regularly or oc-
casionally, and they shall enjoy therein the honors and privileges of war
vessels.
“These mail steamers shall be exempt in the said ports, both in entrance
and departure, from all tonnage, navigation and port dues, unless they load
or discharge cargo in which case they shall pay the same dues as national
vessels. They shall, in no case, be deviated from their destination, nor be
subject to detention, embargo, arrest or restraint of princes.'
330. No mail steamer can claim the attentions and privileges
RIGHT OF JURISDICTION
199
due her by reason of her postal character, when she has abused her
position to evade or violate the laws and regulations in force in the
foreign port which she has entered as a mail steamér.
Such would be the case of a mail boat which had attempted
smuggling; or had received on board, in territorial waters, offenders,
fugitives from justice; or which, after it had received them on board
at some other point, should attempt to land them in the territorial
waters of the státe; or if it had in any other way abused its posi-
tion to violate the customs, or criminal or police regulations.
In such cases, the local authorities who contemplate assuming
jurisdiction over a foreign mail steamer, must advise the consul of
the state to which such vessel belongs and invite him to be present.
331. It is incumbent on every government to compel the mail
steamers of the state entering foreign territorial waters to observe
the laws and regulations enacted by the territorial sovereign, and
to refrain from protecting mail steamers which violate or attempt
to violate them, and to file no unjustified claim when as a result
of the violation of such laws and regulations, the steamers cease
to enjoy the privileges guaranteed them.
JURISDICTION OVER FOREIGN SOVEREIGNS
332. Foreign sovereigns who, as such, are in the territory of a
state, cannot, as such, be personally subjected to its jurisdiction.
If, however, sovereigns should abuse their position to foment
disorder, or to attack the security of the state, they may be forced
to leave the territory and if they commit hostile acts of exceptional
gravity, may be treated as prisoners of war.
The principle of extraterritoriality is opposed to subjecting to the criminal
jurisdiction of the state foreign sovereigns, transiently resident, who may
violate the local laws. Nevertheless, the injured state has the right not only
to prevent, if need be by force, a criminal act, but even, if it has been accom-
plished, to seize the offender and to hold him until reparation or indemnity
has been obtained. It may even answer an attack upon its existence and
integrity by a declaration of war (Heffter, Droit international, $ 102).
333. A sovereign who, in a foreign country, undertakes civil or
commercial acts which, by their nature, cannot be considered as
political acts, but rather as private acts, may be subject to the
local jurisdiction according to the rules which govern the exercise
of jurisdiction with respect to a sovereign in matters of private law.
200
INTERNATIONAL LAW CODIFIED
The following may be considered as coming within this rule:
a. The case of a sovereign who has acquired realty in a foreign
country;
b. The case of a sovereign who becomes a manager of public
utilities or undertakes commercial acts (e. g., the manage-
ment of a railroad, chartering of a ship for carriage of
freight, etc.)
334. We may consider as subject to the state's jurisdiction
a foreign sovereign who voluntarily submits to it.
The following cases may be considered as coming within this
rule:
a. The case of a sovereign who has enlisted in the army of a
foreign state;
b. The case of a sovereign who has commenced an action
as plaintiff, without appointing an attorney-in-fact to
represent him and to answer the counterclaims of the de-
fendant.
The rules proposed are based on the just principle that transactions of
private law and the relations which arise therefrom, cannot materially differ
according to the status of the persons between whom such transactions take
place. Whenever the sovereignty cannot be considered to be actually involved,
the fundamental reason against a sovereign appearing before the local courts
disappears.
In an action against the Khedive of Egypt, who had chartered his public
vessel for the carriage of freight, the jurisdiction of the courts was admitted.
See the decision of the British High Court of Admiralty of May 7, 1873, in the
Journal du droit international privé, 1874, p. 36. (This case, The “Charkieh,”
4 A. and E. 59, was an action in rem, although the Court actually held that
the Khedive, by engaging in the shipping business, was not entitled to the
immunities of a sovereign prince-Transl.]
In the Hullet case, begun by the King of Spain in the character of a sover-
eign, as plaintiff, without appointing a public officer to represent him, the
American (Sic) courts declared they had jurisdiction over him. (The King of
Spain v. Hullet, Reports of Lords, vol. I, p. 333.) [This case, decided by a Brit-
ish court, really held that a foreign sovereign Prince, though entitled to sue in
his political capacity, stands on the same footing as ordinary suitors as to
the rules and practice of the Court, and is bound, like them, to answer a
cross-bill personally and upon oath. 1 Cl. and Fin. (1833), p. 333.-Transl.)
Compare: Fiore, Diritto pubblico internazionale, 4th ed., v. I, $$ 493 et seq.,
and the words Agenti diplomatici in Digesto italiano.
[To the effect that a state by bringing suit does not thereby abandon its
sovereignty and subject itself to an affirmative judgment upon a counterclaim
see People v. Dennison, 84 N. Y. 272; U. S. v. Eckford, 6 Wall. 490. As to
inadmissibility of executing the judgment against a foreign sovereign, even if
he has submitted to the jurisdiction in the matter of a counterclaim against
him, see the important case of von Hellfeld v. Russia, decided by the Prussian
.-
RIGHT OF JURISDICTION
201
$
Court for the determination of Jurisdictional Conflicts, June 25, 1910, printed
in Amer. Journ. of Int. Law, v. 5, pp. 490-519.-Transl.)
335. The sovereign of a state cannot be subjected to civil
jurisdiction on account of acts undertaken as head of the state,
even though these acts may violate the rights of foreigners and
they may claim the jurisdiction of their national courts.
Jurisdiction, considered as a right of the state, cannot extend to the actions
of a foreign sovereign as such without implying the submission of one state to
another. See, the suit entered by Madame Masset, who had summoned the
Czar before the French Courts, for an arbitrary act for which she held him re-
sponsible, Paris, August 23, 1870, Journal du Palais, 1871, p. 73.
See also the Solon case. Mr. Solon, having been instructed by the Khedive
to open a school at Cairo, sued this Prince for damages arising out of his arbi-
trary dismissal. This case is reported by Phillimore in the appendix to his
first volume.
336. A deposed sovereign who no longer effectively exercises
supreme power, cannot legally perform any act of government.
Therefore, if he should undertake such acts and thereby cause
injuries to individuals, he could not claim immunity from the
local jurisdiction in actions brought against him by the persons
he has unjustly injured.
See the suit brought against the former Duke of Modena who, after his fall,
had quite a number of political prisoners transferred to the fortress of Mantua
and kept there as prisoners, notwithstanding the loss of his sovereign power.
The suit brought against the ex-Duke by the prisoners, who demanded dam-
ages for their arbitrary imprisonment, came before the Italian courts.
See the decision of the Court of Genoa of August 6, 1869, and that of the
Court of Cassation of Turin of July 8, 1871, which recognized the competence
of the courts with respect to the acts performed by the ex-Duke since he
had, by virtue of the plebiscite, lost his sovereignty.
JURISDICTION OVER FOREIGN STATES
337. The foreign state, as a political entity, when perform-
ing acts of government in the exercise of its functions and sover-
eign rights, cannot be subjected to the jurisdiction of the country
of which the persons claiming to have been injured by such acts
are citizens.
The responsibility of the state for acts done in its name must be
governed by the rules concerning the international obligations of
the state in its relations with foreign states.
Compare rules 223-226.
202
INTERNATIONAL LAW CODIFIED
338. Those acts of administration performed by a foreign gov-
ernment, which by their nature must be considered as within the
domain of civil relations, must, so far as their litigious consequences
are concerned, be subject to the ordinary jurisdiction of the courts
and to the rules of procedure.
1
In order to understand fully the importance of the two foregoing rules, it
must be noted that the state may be considered from a double point of view,
as a political entity and as a juridical person. From the former point of view,
the acts it performs always imply the exercise of sovereign power and must
be governed by public and constitutional law for their internal consequences
and by international law for their external consequences. They are, therefore,
not within the local jurisdiction. The case is quite different as regards acts
performed by the state as a juridical person. It has, as such, the power to
bind itself, to contract, to acquire property in a private capacity, to incur
debts, and to perform all the acts of civil life just like any other juridical
person. Now since, in these acts, sovereignty is not in question, and since
by their nature, the said acts must be considered as within the domain of
private law, it follows that the principles which must govern them, as well
as the civil consequences and legal actions to which they may give rise, are
those of private law. Thus, a deed of sale does not change either its nature
or character, according as the contracting parties are both private persons
or one of them is a corporation, a foundation, a state or a foreign government.
Compare: Court of Cassation of Rome, joint sitting, May 30, 1869. Comune
di Firenze v. Pontonari, Foro italiano, 1879, 1190.-Cass. of Florence, Novem-
ber 27, 1879, Lucchi v. Comune di Firenze, id., 1879, 1072.
It is, therefore, undeniable that the rules of "common" law relating to
contractual obligations, so far as their consequences and the legal actions to
which they may give rise are concerned, must be applied even to a foreign
government which has contracted in the fiscal interests of the state it repre-
sents.
It is according to that distinction that we have already shown in our article
under the words Agenti diplomatici in the Digesto italiano (v. II, p. 915, no. 217)
that we may determine when to admit or deny jurisdiction with regard to
foreign governments.
339. All acts must be deemed within the domain of civil rela-
tions which by their nature do not affect the personality of the
state as a political institution, but which concern it rather as a
corporation.
Such are:
a. The acts and contracts concluded for the purpose of adminis-
tration, e. g., the operation of public works;
b. The acquisition of real or personal property under contract
either by private title or by way of universal succession to
or by legacy from a private individual;
RIGHT OF JURISDICTION
203
c. Acts relating to industrial or commercial undertakings, for
their effects in the territory of a foreign state;
d. All similar acts, for the effects they may produce in private
international relations, provided they do not affect the
political personality of the foreign state.
340. Whenever the competence of territorial courts over acts
performed by a foreign government is admitted, the rules of
'common” law in force in the country where the action is brought
must be observed in all matters relating to practice and procedure,
as in the case of civil actions brought against the state as a corpora-
tion.
341. Judgment rendered against a foreign state shall not be
carried into effect by forcible execution upon its property or reve-
nues; but diplomatic channels must be resorted to in accordance
with the rules of administrative procedure, save in cases where
the foreign state in its private capacity possesses property in the
country where the judgment was rendered.
This proposed rule is based on the just idea that the same rules cannot be
applied to the property of the state and to that of private persons, when we
deal with forcible execution against the property. State property is intended
for the satisfaction of public needs, and it is easy to understand that ordinary
methods of execution must be deemed inconsistent with the administration
of the property of the state and the ultimate use of its funds and revenues.
The obstacle which inevitably stands in the way of executing a judgment
against a foreign state does not constitute a decisive argument to defeat the
jurisdiction itself. The right of a plaintiff to request a competent court to
render a judgment and to find against the foreign state cannot be denied, not-
withstanding the fact that after having obtained the judgment he cannot
enforce it except in the forms and under the conditions prescribed by con-
stitutional and international law.
Compare the decision of the Court of Lucca, of March 22, 1887, Hampson
v. Bey of Tunis, Foro italiano, 1887, I, 474. [See also the exhaustive opinion
of the German court in Hellfeld v. Russia, printed in Amer. Journ. of Int.
Law, v. 5, pp. 490-519.-Transl.)
342. It must always be considered proper according to the
comitas gentium, in the case of judicial proceedings against a for-
eign government, to make all possible efforts to settle the difficulty
by diplomacy. If, however, the government of the foreign state
refuses to recognize the claims of the plaintiff and declines to settle
the case through administrative channels, the institution of an
action brought against the state cannot be opposed.
204
INTERNATIONAL LAW CODIFIED
JURISDICTION OVER FOREIGN MINISTERS
343. Foreign diplomatic agents shall not be subject to the
territorial jurisdiction for acts performed by them as such, while
invested with the public character of representatives of a foreign
government. If, however, their acts involve civil consequences and
obligations, the rules concerning acts of gestion or administration
performed by a foreign government must be applied in all matters
relating to judicial proceedings and the competence of courts.
By virtue of this rule, it must be admitted that a foreign minister cannot be
held personally responsible even for the civil consequences of acts performed
by him as a diplomatic agent and representative of a foreign government.
Nevertheless, we must admit the right of a foreign minister, authorized to
provide for the needs of the legation, to conclude a lease of a residence for
the legation or to furnish the residence. In this and in similar cases, since he
acts as a representative of his government, it is natural that the civi conse-
quences of his acts come under the above mentioned rules concerning acts
performed by a foreign government.
344. The foreign minister who, in the exercise of his functions as
such, offends the sovereign or his government, cannot be criminally
prosecuted; his recall only may be requested, or his passports
given him.
It is always incumbent on the state represented to disavow the
acts of its minister and to offer to the offended state the satisfaction
to which it is entitled. Otherwise, it would assume responsibility
for the acts committed by its minister as its representative.
345. When a foreign minister performs an act which is clearly
of a hostile character, the government of the state to which he is
accredited may detain him until the government he represents has
recognized the justice of its complaint and until the pending
difficulty has been settled by diplomacy.
If that difficulty should lead to war between the two states, the
foreign minister may be detained as a prisoner of war.
In principle, the foreign minister, in so far as he represents the state and
performs acts as such in the name of his government, cannot be held personally
responsible for his acts, since by reason of his representative character he is
acting in the name of the foreign state. Hence it follows that when such acts
give rise to a difficulty between the two governments, it must come under
the general rules governing disputes between states.
( 346. Diplomatic agents who, in the state where they reside,
perform acts in no way connected with their character as public
officers or representatives of a foreign government, but which, by
RIGHT OF JURISDICTION
205
.
their nature, must be considered as within the domain of civil and
private relations, may, with respect to all the consequences of those
acts, be rendered subject to the territorial courts, save for such
concessions as are necessary to protect the dignity of the rep-
resented state.
The purpose of the foregoing rules is to determine exactly the scope of the
privilege of exterritoriality enjoyed by the representatives of foreign states.
Leaving aside legal fictions, it must be recognized that, from the nature of
things, the representative of a foreign state being endowed in all his acts with
a public character, cannot be subject to the jurisdiction of the state to which
he is accredited. He represents, in fact, the very person of the sovereign, and
he cannot be subject to the local jurisdiction, because, since this is inseparable
from the local sovereignty, his submission to territorial jurisdiction would be
equivalent to making the sovereign he represents a dependent of the sovereign
of a foreign state.
It was, therefore, very properly that the Court of Paris, in the Massé case,
expressed itself as follows: "Inasmuch as the reciprocal independence of states
is established by international law and to undertake to subject to
the local jurisdiction the sovereign of a foreign country, i. e., to the jurisdiction
and orders of a judge of another country, would be a manifest injury to a foreign
state and violate to that extent the law of nations. ; and the incom-
petence of the court was in that respect a matter of public policy and ab-
solute, ..." (Paris, August 23, 1870, Journal du Palais, 1871, p. 73.)
Thus, it is not under the fiction of exterritoriality but under the principle
of the reciprocal independence of states, that foreign ministers must be ex-
empted from territorial jurisdiction for all acts performed as representatives
of the state which has accredited them.
In private legal relations, it cannot be maintained that they must be exempt
from territorial jurisdiction, because these relations are always identical
whether they are contracted between two private individuals or between an
individual and a foreign minister.
Sale, rent or deposit do not change their nature, character or substance
when a foreign minister assumes the part of seller, buyer, lessor, lessee, de-
positor or depositary. See Fiore: Agenti diplomatici, in the Digesto italiano,
$$ 171 et seq.; Diritto internazionale pubblico, 4th ed., v. II, $$ 1194–1229.
Compare: Féraud-Giraud, Etats et souverains devant les tribunaux étrangers,
v. II, Paris, 1895, Appendix.
347. Diplomatic agents who criminally violate the rights of
private parties are subject to the criminal jurisdiction of the state
to which they are accredited, save for such concessions as are
necessary to protect the dignity of the represented state.
Oppenheim, International law, 2d ed., v. I, 98 301 et seq.
JURISDICTION OVER FOREIGN CONSULS
348. Foreign consuls are not subject to territorial jurisdiction
for acts performed by them as public officials, according to the
206
INTERNATIONAL LAW CODIFIED
laws and regulations and the functions assigned to them by the
consular convention and agreements concluded between the two
states.
If, however, these acts should have civil consequences and justify
a civil action against their home government, the competence of
territorial courts could be admitted under the rules relating to the
jurisdiction over foreign governments and states.
In order that this rule may be fully understood, it is necessary to recall that
public officers, although not personally responsible for acts performed in their
capacity as public officers, may under certain circumstances involve the re-
sponsibility of the state.
This question was argued before the Italian courts, in consequence of a
promise made by the consul of Greece, as such, to pay the sums due to the
Aversa insane asylum where he had requested the confinement of an insane
Greek woman.
On request of the management of the asylum, the Italian
courts declared themselves competent. The Court of Cassation of Naples,
in its decision of March 16, 1886, decided that the foreign consul (and through
him the government to which he owes his office) cannot be considered as im-
mune from the jurisdiction of the courts of the state with regard to the obli-
gations contracted in Italy in providing, as a consul, for the needs of his coun-
trymen (Giurisprudenza italiana, Typaldos, consul of Greece v. Manicomio di
Aversa, 1886, Parte I, sezione I, 228).
See also the judgment of the Court of Catania, of August 16, 1888, in Leva
v. Belfiore, Giurispr. catanese, 1888, p. 189.
349. Consuls engaged in commerce or performing acts of private
business are in these matters fully subject to the commercial or
civil jurisdiction of the country in which these transactions are
undertaken.
Even when, under a consular convention, the respective consuls must enjoy,
under reciprocity, certain privileges, exemptions, prerogatives and immunities,
it cannot be maintained that they may benefit by them when they are engaged
in business or perform acts governed by private law.
In the protocol signed by Italy and Roumania to fix the exact scope of the
consular convention concluded between them, it is provided: “It is understood
that the respective consuls of the two countries, if they engage in business,
shall be entirely subject, in so far as concerns provisional detention in commer-
cial transactions, to the legislation of the country in which they act as consuls."
(Bucharest, March 13, 1881, Collezione dei trattati e convenzioni tra l'Italia egli
Stati stranieri, v. X, p. 799.)
350. The state must regulate the exercise of its jurisdiction and
the rights of the local authorities with respect to foreign consuls
with the consideration and regard due them by reason of their
public character; it must also assure them the enjoyment of all
the rights, immunities, privileges and exemptions which are
granted them by the consular convention or under “common” law.
RIGHT OF JURISDICTION
207
351. It must be admitted, in principle, that while consuls can-
not enjoy all the rights and privileges granted to diplomatic agents,
they are, nevertheless, entitled to all the guaranties of their per-
sonal security, to entire liberty properly to perform their duties,
and to the effective co-operation of the local authorities for the
execution of the measures they are bound to take in order to per-
form their duties.
In most consular conventions, while not recognizing the exemption of consuls
and consular agents from the territorial jurisdiction, the principle is admitted
that they cannot be subject to arrest unless they are guilty of serious offenses.
In the convention of May 15, 1874, between Italy and Austria, article 5 reads
as follows: "Consuls general, consuls, vice-consuls and consular agents, subjects
of the high contracting party which named them, shall enjoy personal im-
munity from arrest and imprisonment, unless the offense, if committed in
Austria-Hungary, is considered a crime or punished by a grave penalty, or,
if committed in Italy, is affected with a criminal penalty.'
The same provision is contained in the consular convention between Italy
and Russia of April 16, 1875, under which arrest is permitted only when the
offenses are punishable by a penalty of more than one year's imprisonment.
(Convention of April 16–28, 1875, art. 2, sect. 2.)
To complete these rules, see infra, the rights and prerogatives of consuls.
TITLE XII
EXTERRITORIALITY
352. Exterritoriality is a form of privilege or exemption con-
sisting of a limitation of territorial sovereignty with regard to cer-
tain persons and certain places, which under international law
enjoy the privilege of remaining outside the jurisdiction of the state
in whose territory they are situated.
The word exterritoriality expresses inadequately and vaguely the excep-
tional situation in which certain persons and objects find themselves with
respect to territorial law. Taking the word in its literal meaning, it might be
supposed that it means that the persons enjoying exterritoriality are in the
same situation as those who are outside the territory, and that objects must be
considered as not part of the territory, which is entirely wrong. The fact is
merely that certain persons and things, because of an exception based on inter-
national law, are outside of the general rules of territorial law. Therefore,
the jurisdictional power of the territorial sovereign is to be regarded as limited
with respect to what is comprised in the exception, and in that respect persons
and things must be considered as if they were outside the territory of the state.
All authors are now agreed on the true meaning of the word. Compare:
Fiore, Nuovo diritto internazionale pubblico, Ist. ed., 1865, p. 582; id., Effetti
internazionali delle sentenze e degli atli, parte 2, $$ 412 et seq. (Torino, Loescher,
1877); id., Trattato di Diritto internazionale pubblico, v. I, p. 372 (Torino, 1879);
Laurent, Droit civil international, v. I, 51-89; Bar, Theorie und Praxis, v. II,
509-526, Lehrbuch, $ 77; Heffter, Droit international, $ 42; Rivier, Principes du
droit des gens, v.1, $ 67, p. 330; Bluntschli, Droil international, rule 135; Bonfils,
Droit international, $ 337; Oppenheim, International law, Exterritoriality, v. I,
2d ed., Monarchs, pp. 429-431, of diplomatic envoys, 460–463.
We have fully explained the principles which should govern exterritoriality
in Digesto italiano, word Agenti diplomatici.
PERSONS WHO ENJOY THE PRIVILEGE OF EXTERRITORIALITY
353. The privilege of exterritoriality extends:
a. To sovereigns;
b. To diplomatic agents invested with the character of repre-
sentatives of a foreign state;
c. To the Pope;
d. To citizens who live in countries subject to the system of
capitulations.
208
EXTERRITORIALITY
209
354. Exterritoriality, with respect to the persons who enjoy it,
cannot signify that they should be considered as not actually in
the territory of the state; it merely implies a limitation of the right
of local sovereignty with respect to such persons, to safeguard their
independence or to protect their rights.
Compare: Delepoulle, Exposé théorique de la fiction d'exterritorialité par
rapport aux personnes, 1897; Pietri, Etude critique sur la fiction d'exterrito-
rialité, 1895, pp. 68 et seq.
SOVEREIGNS AND FOREIGN DIPLOMATIC REPRESENTATIVES
355. The sovereign cannot exercise jurisdiction over foreign
sovereigns who are temporarily in the territory of the state, nor
with respect to diplomatic agents so far as concerns acts performed
in their character as representatives of the foreign state. These
agents can only be subject to local jurisdiction with respect to acts
having no connection with their public character, but which must
be considered as within the domain of private legal relations.
Compare rules 333-338.
THE POPE
356. The Pope must be considered personally inviolable and
not subject to the jurisdiction of the territorial sovereign with
respect to all acts he happens to perform in the exercise of his
supreme authority as head of the government of the Church and
of the ecclesiastical hierarchy and priesthood.
357. No government can without violating the independence and
international liberty of the Pope, impute legal liability to him and
subject him to its own jurisdiction in order to nullify the exercise
of his spiritual powers, which he ought to be able to use with abso-
lute freedom, e. g., promulgating the dogma, the principles of the
faith and the rules of discipline and worship.
PERSONS SUBJECT TO THE SYSTEM OF CAPITULATIONS
358. Foreigners living in countries where Capitulations are in
force must be considered as outside the jurisdiction of the territorial
sovereign in the cases provided for by the Capitulations themselves,
210
INTERNATIONAL LAW CODIFIED
by treaties or by customary law; they must submit to the jurisdic-
tion of their national consuls and consular agents, whose duty it
is to settle their difficulties in conformity with the rules of the
Capitulations, treaties or established custom.
359. The limitation of the jurisdictional rights of the terri-
torial sovereign delegated by convention to the authority desig-
nated must be considered as an exception and must not extend
beyond the cases and circumstances expressed or contemplated
in the Capitulations. Consequently, capitulations must, in so far
as they are derogatory to the rules of “common” law, be inter-
preted and applied in a restrictive sense, just like any special and
exceptional law restricting the free exercise of the rights of the
territorial sovereign.
360. The privilege of extraterritoriality, which can be enjoyed
under Capitulations, is personal and cannot be so extended as to
cover consular districts in the countries where such Capitulations
are in force and hence citizens of different states there resident.
361. The public legal relations between the foreign sovereign
who exercises extraterritorial jurisdiction and the territorial
sovereign, with respect to acts performed in the consular district,
must be governed by the principles of “common” law, it being
admitted that the consular district cannot be considered as terri-
tory of the state which exercises jurisdictional rights by virtue of
the Capitulations.
As regards the relations of individuals, the rules of private
international law must be applied, except for such derogations
from these rules as are contemplated in the Capitulations, treaties
and customary law.
The purpose of the foregoing rules is to determine clearly the extraterrito-
riality resulting from the system of Capitulations. Capitulations, in reality,
constitute derogations from “common” law, since under them the territorial
state suffers a considerable limitation in the exercise of its jurisdiction and is
obliged to permit the foreign state to exercise jurisdictional rights with respect
to its citizens residing in the territory.
It cannot be inferred, however, that the territorial state is deprived of emi-
nent domain and imperium as if the consular district were no longer a part of
the territory of the state. This district must merely be considered as an appen-
dage of the territory of the foreign state which, by reason of the Capitulations,
exercises jurisdictional rights over its citizens residing in the consular district.
An application of our rule was made by the French courts with reference to
the form of celebration of marriage and to the observance of the rule locus
regit actum. Thus, the French Court of Cassation said: “The fiction of extra-
EXTERRITORIALITY
211
territoriality which arises from the Capitulations, so far as concerns French-
men residing in the Levant, cannot in consequence necessarily impose on them
the obligation of subjecting themselves to the French law in respect to all acts
they may perform in that country (Cass. April 18, 1865, Journal du Palais,
1865, p. 770).
The same view was taken by the Court of Cassation of Turin in its decision
of July 29, 1870 (Monitore dei Tribunali, 1870, 749).
See also the decision of the Court of Cassation of Rome, November 26, 1888,
in the Russo case. The Court decided that the offense committed by an
Italian citizen in a country where the consular jurisdiction is recognized
(Smyrna), while subject to Italian laws and justiciable by Italian courts,
could not be considered as an offense committed in the kingdom, but rather in
a foreign country. Foro italiano, 1889, part 2, p. 3; and Pomodoro, Le capi-
tolazioni e la giuridizione consolare negli scali del Levante, in the magazine La
Legge, 1889, v. I. Compare, Fiore, Diritto internazionale privato, 4th ed., v. I,
§ 240.
362. The régime of Capitulations and the resulting limitations
upon the jurisdiction of the territorial sovereign should be con-
sidered as abrogated in fact and in law:
a. When the country where the Capitulations are in force is
annexed to an independent state;
b. When it ranks by reason of its civilization with civilized
countries;
C. When it is under the protectorate of a civilized state.
This principle may be considered as established, since all governments have
agreed that Capitulations cannot remain in force in countries where the Mus-
sulman administration has been replaced by Christian civilized states (as
happened at Massaua), or by the protectorate of a civilized state (as was the
case in Tunis).
In the treaty of June 26, 1884, between Italy and Korea, the following pro-
vision is found (article 11): “It is declared and established that the right of
territorial jurisdiction over Italian subjects in Korea conceded in this treaty
shall be relinquished by the Italian government when in the opinion of the
said government the laws and legal procedure of Korea shall have been so
modified and reformed as to overcome all the objections which now prevent
the submission of Italian subjects to Korean jurisdiction, and when Korean
judges shall have been invested with the same legal functions and the same
independent position as Italian judges.” [The extraterritorial jurisdiction
of the United States has been relinquished in Korea since 1905.-Transl.)
PLACES WHICH ENJOY THE PRIVILEGE OF EXTERRITORIALITY
363. The privilege of exterritoriality is assigned:
a. To the offices of foreign legations and to the consular archives;
b. To the buildings intended as the usual residence of the min-
212
INTERNATIONAL LAW CODIFIED
1
isters and diplomatic agents accredited to the sovereign of
the state; :
c. To the places where a foreign army is quartered;
d. To the buildings used for the habitual residence of the Pope,
for the Administration of the Holy See, for the meeting
of a conclave or of an ecumenical council, or for the offices
of the pontifical congregation.
364. The sovereign of the state has no right to exercise any
jurisdictional act over the places which enjoy extraterritoriality.
Consequently, he cannot proceed to search a dwelling, or ex-
amine any papers, documents or records, or undertake any other
act of investigation in such places.
365. The territorial state cannot, however, be considered as
completely deprived of eminent domain over the places possessing
the privilege of exterritoriality. It can only be considered as de-
prived of the exercise of its jurisdiction according to “common”
law.
Exterritoriality has been considered as a legal fiction, under which persons
who may claim the enjoyment thereof, are to be considered as outside terri-
torial jurisdiction, as if they were not (although in fact they are) in the terri-
tory of the state. With regard to places, it has come to be decided, always be-
cause of the fiction, that they must be considered as if they were not in fact
a part of the state. This legal fiction was accepted by the old writers. Grotius
was among the first to hold that diplomatic agents sunt quasi extra territorium
(L. II, cap. XVIII). Nowadays, it seems more reasonable not to accept such
an exaggeration and it is not considered necessary to resort to legal fiction in
order to justify the limitation of territorial jurisdiction. It is held that such
limitation must be considered as based on the general principles which govern
the reciprocal independence of states and these principles render it indispensa-
ble to restrict the exercise of jurisdiction with respect to certain persons and
places, for the safeguarding of the reciprocal security of states and interna-
tional relations.
4
EXTERRITORIALITY OF LEGATIONS
366. That part of the legation where the archives are kept and
everything relating to the legation's office, including the documents
and objects incident to the public service of the diplomatic repre-
sentative, must be considered as absolutely outside the jurisdiction
of the territorial state.
The building used as a residence by the diplomatic representa-
tive must in like manner be considered as outside territorial juris-
diction.
EXTERRITORIALITY
213
As regards minor buildings such as kitchens, stables and others
of a similar nature, the limitation of local jurisdiction cannot be
considered as absolute, but must be deemed subject only to certain
immunities based on proper consideration due to a foreign minister.
This rule seeks to give to the privilege of exterritoriality its proper limita-
tions. It implies in principle a partial relinquishment by the state of its terri-
torial sovereignty. The restriction, within the limits ascribed to it, must be
considered absolute. It constitutes, however, an exception and, as such, must
be given strict interpretation according to the general principles of law.
“Every state,” said Portalis, “has the right to look to its preservation, and in
this right resides sovereignty. This sovereign power cannot be limited,
either as to persons or as to things. It is nothing, if not complete. . .
(Code civil suivi de l'exposé des motifs, II, p. 12.)
Under the exaggerated view of exterritoriality, it was conceived that the
foreign legation was a part of the foreign state represented, and it was held
that the territorial sovereign should be considered as deprived of any right of
jurisdiction. Calvo goes so far as to deny jurisdiction in criminal cases over
any offense under "common” law committed in the legation building, even
by persons of no official character, such as servants and clerks (4th ed., $$ 1540–
1541). There is no profit in further discussion. We favor the absolute ex-
ception, restricted within its purposes.
Compare: Fiore, Agenti diplomatici, in Digesto italiano, $ 6; id., Effetti in-
ternazionali delle sentenze penali, $$ 417–418, and the authors there cited; Rivier,
Principes du droit des gens, v. I, pp. 330; Heffter, $ 205.
We have always maintained that it is never possible to act in all matters
concerning a foreign minister without due regard for the dignity of his office.
Therefore, it must be considered essential to make all possible concessions,
and the local authorities should always refer the matter to the Minister of
Foreign Affairs. Be that as it may, we cannot admit that the territorial sov-
ereign can be considered as deprived of all right and power over the building
used as a residence by the foreign diplomatic representative.
ASYLUM
367. Diplomatic agents must not make use of the legation
building to shelter persons in it from the jurisdiction of the terri-
torial sovereignty and must not abuse the privilege of exterritori-
ality.
In case abuse of privilege can be fully and conclusively proved,
the diplomatic agent's home government must be held responsible.
368. Foreign diplomatic officers cannot be regarded as forbidden
to grant asylum to persons accused of political offenses, or to pro-
tect them in their personal safety from the local government.
Any measure by the local authorities against persons who have
taken refuge in the residence of a foreign minister is to be con-
214
INTERNATIONAL LAW CODIFIED
sidered contrary to those principles of international law which
justify the protection extended in all civilized countries to political
offenders.
369. Nevertheless, the foreign minister cannot carry the pro-
tection of political offenders to the point of giving them refuge in
his residence to plot against the government and combat the politi-
cal institutions of the state.
370. The foreign accrediting government must see that its
legation is not used as an asylum for plotting against the govern-
ment of a friendly state, and for want of vigilance in that respect
it shall be held responsible as in any other case of violation of
proper diplomatic relations.
Asylum by legations to political offenders is generally admitted; but to use
it in order to facilitate attacks upon the safety of the state would be im-
moderate.
Compare, Calvo, Droit internat., v. III, $ 1521; Oppenheim, International
law, v. I, 2d ed., p. 461; Moore, Asylum in legations and consulates and in
vessels, 1892.
V
D
1
CRIMINAL PROCEDURE AND JURISDICTION
371. The local authorities should never be permitted to search the
residence occupied by a foreign diplomatic officer. In the matter
of the legation offices and other buildings attached to the legation,
although they are not used for his residence or dwelling, the local
authorities should not be able to act as they would with regard
to private individuals, merely following the rules of "common"
law; they must also take into account the exceptions properly
based on the consideration due to the representative of a foreign
state.
372. If justice should require a search in order to arrest a crimi-
nal who has taken refuge in the residence of a foreign minister,
his consent must be obtained, or the good offices of the Minister
of Foreign Affairs must be sought to obtain such consent.
Local authorities can merely adopt the immediately necessary
measures to prevent the escape of the accused person and to assure
the regular course of justice.
373. If, by reason of very exceptional circumstances, it should
be necessary to search a foreign minister's legation against his will,
it would be necessary first to establish the grave reasons requiring
EXTERRITORIALITY
215
such a measure and to make them known to the foreign minister,
so as to give him time, if desired, to remove all documents and
papers relating to his mission. The search should take place with
great moderation, supposing it to have but one purpose, the arrest
of the offender.
The foregoing rules tend to correct the erroneous idea that the house of a
foreign minister can be considered as an asylum for criminals and can com-
pletely escape the jurisdiction of the territorial sovereignty. The considera-
tion due the representative of a friendly state ceases when that officer attempts
to take advantage of it to protect offenders against the law. Calvo mentions
various cases which corroborate the established rules. The Duke of Riperda
was arrested in the house of the ambassador at Madrid. The Swedish au-
thorities surrounded the house of the British ambassador at Stockholm, who
had refused to deliver up a criminal who had taken refuge there. Calvo, Droit
internat. public, $$ 513 et seq.
See Fiore, Effetti internazionali delle sentenze penali e dell' estradizione, § 417;
Droit pénal international, v. I, § 27, and the article under the head Agenti
diplomatici in Digesto italiano, $ 6, notes 243–264.
374. If it should be necessary to try a criminal for a crime com-
mitted in the house of a foreign minister, the jurisdiction of the
territorial state must be deemed entire and absolute as in any other
case of offense committed in the territory of the state,
CIVIL ACTS PERFORMED BY LEGATIONS
375. Acts affecting the civil status performed in legation build-
ings by persons attached to the legation or by others, cannot be
considered as having taken place in the territory of the foreign
accrediting state.
Consequently, we must apply to marriages performed in the
legation or consulate the principles of “common” law which govern
marriages celebrated abroad, and to regard those performed there
as valid only when the parties are both citizens of the country to
which the legation or consulate belongs, subject to the exceptions
provided for by treaty.
Under the rules established by treaty, it is generally agreed that when the
prospective husband and wife are nationals of the country of the diplomatic
agent or consul, their inarriage can take place at the legation or consulate in
accordance with the formalities required by their national law, and that
marriages so performed must be considered valid everywhere. Besides, it is a
general rule of customary law that it is permissible for contracting parties to
follow in a foreign country the forms of their national law, when that law is
common to all the parties. In such case, they may claim that the act so per-
formed is valid so far as its form is concerned.
1
216
INTERNATIONAL LAW CODIFIED
Owing to the exterritoriality of legations, it was believed, furthermore, that
a marriage performed at the legation could be considered as performed in the
country to which the legation belongs and therefore that the forms required
under the law of that country could be followed by all. To-day, however, the
principle set forth in our rule prevails.
See the decision of the civil tribunal of the Seine in reference to a marriage
performed at the British Embassy in Paris between a Frenchwoman and an
Englishman: "In view of the fact," said the Court, “that although the lega-
tion of an Embassy should, according to international law, be regarded as the
territory of the state which accredits the ambassador, this is only so from the
point of view of the immunities granted by treaties to diplomatic officers, but
that this fiction of exterritoriality cannot be extended to include acts affecting
the civil status of inhabitants of the country to which the ambassador
is accredited; it was therefore in France and on French territory that
Morgan and Miss French were when they contracted marriage on Novem-
ber 23, 1867. .
Tribunal de la Seine, Nov. 23, 1867. Clunet, Journal du droit international
privé, 1874, p. 71. See, for diplomatic correspondence on the subject, Fiore,
words Agenti diplomatici, in Digesto italiano and Diritto internazionale pubblico,
4th ed., v. II, SS 1231 et seq.
)
HOW THE PRIVILEGE OF EXTERRITORIALITY MAY BE LOST
376. Persons who enjoy the privilege of exterritoriality for cer-
tain acts may lose that privilege by abusing it and violating
territorial law.
Such abuse must, however, be conclusively proved.
377. The privilege of exterritoriality possessed by certain places
may be lost when it has been misused for a purpose different from
that for which it was granted. Such misuse must, however, be
definitely established and clearly proved.
378. The sovereign of a state who is unable definitely to es-
tablish the abuse of the privilege of exterritoriality and neverthe-
less performs some act of jurisdiction over a person or in a place
enjoying exterritoriality, assumes international responsibility for
that unlawful act, which should, in principle, be characterized
as a manifest violation of international law, subject to the rules
which govern the international responsibility of states.
The violation of exterritoriality should in principle be considered as a vio-
lation of international law which may legitimate all the measures appropriate
for redressing violations of that law. It must be said, however, that as exterri-
toriality depends upon the urgent need of effectively protecting the purpose
for which it was established, should such purpose as to certain persons and
places happen to be wanting, the privilege itself would cease to exist. An abuse
of the object for which exterritoriality is admitted, would justify the extension
of the local jurisdiction to the abusing person or place. The great difficulty
mot en sang
EXTERRITORIALITY
217
consists in fully and clearly proving the abuse of exterritoriality. In its ab-
sence, the extension of local jurisdiction could not have any other character
than that of a violation of international law.
EXTERRITORIALITY OF CONSULATES
379. Consulates cannot be considered as covered by the privi-
lege of exterritoriality; but the consular archives are removed from
the local jurisdiction of the territorial state.
380. Consuls must provide a special place for the safe keeping
of all consular and administrative documents, giving previous
notice to the authorities of the country and indicating the place
selected for such deposit.
Consuls must also keep in a separate place the books, papers and
documents which relate to commerce and industry and any other
documents relating to their personal affairs and having no con-
nection with their official duties,
381. The local authorities cannot, in principle, undertake any act
of jurisdiction in that part of the consulate which contains the
consular archives, nor proceed to any search or seizure of the
official documents, papers and objects connected with the service
or functions of the foreign consul.
382. Consuls should not take advantage of the inviolability of
their archives to remove from the local jurisdiction, documents
and objects, etc., requested by the local judicial authorities, nor
make use of the said archives for a purpose different from that for
which they were intended. In case of proved abuse, the judicial
authorities may prescribe the measures best adapted to the proper
administration of justice. They must, however, exercise their
jurisdictional powers with the respect due to consuls and resort
to diplomacy to recall those officials to the observance of their
professional duties.
In the agreement concluded between Italy and France, on December 8, 1888,
to interpret article 5 of the consular convention of July 26, 1882, relating to the
inviolability of consular archives, it was stipulated:
“Art. 1. The words 'consular archives' apply exclusively to the files of
official documents and others directly connected with the service, as well as
to the place designated for their safe keeping.
"Art. 2. Consuls
Consuls general, vice-consuls and consular agents are expressly
forbidden to place documents or objects not having that character in the rooms
or files set aside for the archives.
"The rooms or room used for this purpose shall be absolutely distinct from
218
INTERNATIONAL LAW CODIFIED
3
those used for the private residence of the Consul and cannot be used for any
other purpose.
For the details of the difficulty which arose between Italy and France with
respect to a seizure made in the archives of the consul of France at Florence,
see Fiore, Diritto internazionale pubblico, 4th ed., Appendix, p. 651.
EXTERRITORIALITY OF PLACES SET APART FOR THE HOLY SEE
383. All places set apart for the government of the Church and
in which the Holy See exercises its spiritual powers and func-
tions, are removed from the territorial jurisdiction, that is, the
places selected by the Pope for his permanent or temporary resi-
dence, those used for the establishment of the congregations and
other high ecclesiastical offices, and those where a conclave or an
ecumenical council convenes.
384. The exterritoriality of places set apart for the Holy See
must be considered entire and absolute. The local authorities,
therefore, with respect to such places, must refrain from every act
of jurisdiction in all matters which concern the exercise of the
power and functions of the high administration of the church by
the ecclesiastical authorities. Searches, investigations, or seizures
of papers, documents, books or registers in the offices intended for
the pontifical congregations must, therefore, be forbidden in every
case.
385. It is incumbent upon the ecclesiastical authorities to pre-
vent the places assigned to the Holy See from being used as an
asylum for the protection of offenders against “common” terri-
torial law, or to insure safety to those persons who might seek to
use such places to commit serious offenses against the security of
the state.
Exemption from jurisdiction under the rules of territorial law
must be regarded as absolute and unrestricted so long as the object
for which the privilege was established subsists; but it must be
considered as abrogated when that purpose ceases and its termina-
tion is clearly proved.
386. When the local authorities deem themselves justified, in
order to safeguard the internal security of the state, in under-
taking acts of jurisdiction in the places assigned to the Holy See,
it is incumbent on them to act with moderation. Consequently,
any impairment of the privilege of exterritoriality can be admitted
EXTERRITORIALITY
219
only within the limits strictly necessary to guarantee public safety
and to insure the authority and enforcement of the local police
and criminal laws.
Article 7 of the law of May 13, 1871, relating to the prerogative of the Pope
and of the Holy See reads as follows: "No public officer or agent may, in order
to perform his duties, enter the palaces or places of habitual residence or tem-
porary abode of the Sovereign Pontiff, or in which a conclave or an ecumenical
council is meeting, unless he is authorized by the Sovereign Pontiff, conclave
or council.”
By this article, it is indirectly admitted that the public authorities, in ex-
ceptional circumstances, may exercise their powers of jurisdiction in the places
enjoying the privilege of exterritoriality. It is true that the authorization of
the Pope, conclave or council, is a condition precedent to the exercise of juris-
dictional acts; but such condition must be considered as established to insure
the respect due to the Holy See, and also because it cannot be presumed that
the ecclesiastical authorities would ever refuse the authorization of proceeding
according to law, when they recognize that the necessities of justice require it.
CORRECT VIEW OF THE EXTERRITORIALITY OF THE HOLY SEE
387. The privilege of exterritoriality enjoyed by the places set
apart for the Holy See cannot result in assigning to these places
the legal status of territory subject to the sovereign rule of the
Pope. Therefore, while the Sovereign Pontiff may freely exercise
spiritual jurisdiction, he cannot, in these places, perform jurisdic-
tional acts implying the exercise of the powers of political sover-
eignty.
The foregoing rules must serve to determine the true legal domain, within
whose limits the rights of jurisdiction of the territorial sovereignty are exer-
cised. The exterritoriality of the places designed for the use of the Holy See
must be considered as absolute within its purpose. It tends to assure to the
Pope complete freedom and independence with respect to all matters concern-
ing the government of the Church and the exercise of his powers and functions,
and in that respect such freedom and independence cannot be limited. Free-
dom of government implies the freedom and independence of the ecclesiastical
authorities entrusted by the Pope with the high administration and govern-
ment of the Church. It must be admitted, therefore, that these author-
ities, in so far as they exercise their powers and functions as delegates of
the Pope, must be completely exempt from the ordinary jurisdiction and
command of the territorial sovereignty. The exterritoriality of the places
assigned to the congregations and offices charged with the high administra-
tion of the Church must be held to be absolute.
Nevertheless, it must be observed, that for the exercise of the high adminis-
tration and government of the Church, it has been necessary to occupy several
buildings located in various sections of the city of Rome and that the Vatican
is in itself a great space which comprises, besides the portion assigned to the
220
INTERNATIONAL LAW CODIFIED
habitual or temporary residence of the Pope, great buildings where a great
many persons live (about 20,000) who do not share in the exercise of spiritual
power and the majority of whom are Italian citizens. Now, it certainly cannot
be admitted that all these buildings and such an extensive portion of the city
can be considered as not in fact a part of Italian territory, regarding such
places, dwellings and persons as absolutely exempt from the territorial sov-
ereignty, just as if we were dealing with a foreign territory subject to the power
of a foreign political sovereignty.
The territorial state exercises its power first of all by imposing its laws on the
persons who live in the said places and who perform acts in their private and
civil law relations. Consequently, so far as private acts are concerned, the
people who live in the Vatican are considered as living on Italian territory and
as recognizing in fact the authority of the Italian law, when, for example, they
wish to marry or to perform any other civil act.
As regards disagreements which may arise by reason of acts performed in
the Vatican and which do not concern the administration of the Church, but
the property and private interests of people, the competence of the Italian
courts cannot be questioned. It is not possible to attribute to the head of the
Church the power to create courts to decide civil law cases.
The competence of the Italian courts was recognized in fact in the
Martinucci-Theodoli case by decision of the Court of Appeal of Rome of
November 9, 1882 (Foro italiano, 1883, I, 663).
In case it should be necessary to punish “common” law offenses committed
in the places set apart for the use of the Holy See by people not connected with
the government of the Church, the jurisdiction of the territorial state could
not be questioned. We may admit that, in order to assure the freedom of
government of the church, those who, while exercising the functions assigned
to them, have abused their powers, can be held accountable to the head of the
Church; but, beyond all doubt, private persons guilty of “common” law
offenses could not be tried and punished by the Pope, whence the necessity of
recognizing the criminal jurisdiction of the territorial sovereignty with respect
to such offenders.
388. The violation of the exterritoriality of the places assigned
to the Holy See must be considered as a violation of the rules of
international law; it would justify the collective legal defense of
that law on the part of other states.
Granted that the independence of the head of the Church and the exterri-
toriality of the Holy See must be considered as based on “common” inter-
national law, the respect or violation of exterritoriality cannot be conceived
as questions of territorial interest.
PLACE WHERE A FOREIGN ARMY IS QUARTERED
389. The privilege of exterritoriality should be assigned to the
place where a foreign army is quartered, and the territorial state
should not exercise its jurisdiction in such a place as long as the
said army remains there. Jurisdiction, both as regards military
A
EXTERRITORIALITY
221
and “common” law offenses, committed within the limits of the
encampment, resides exclusively in the sovereignty of the state
whose army is quartered there.
390. The said exterritoriality cannot limit the rights of the
territorial state, nor the exercise of its jurisdiction as regards per-
sons belonging to the foreign army who have violated the terri-
torial laws and ordinances, outside the limits of the encampment.
391. The territorial authorities are bound to deliver over to the
military authorities, without any formality, persons belonging to
the army, who, having committed an offense within the limits of
the encampment, have taken refuge in the territory of the state.
392. The military authorities must deliver over to the local
authorities persons who are wanted for a “common” law offense,
and have taken refuge within the encampment.
1
TITLE XIII
THE LEGAL EQUALITY OF STATES
393. Every state has the right to be considered in international
society as the equal of others in all matters relating to its legal
capacity, the exercise of all rights derived from sovereignty and
the fulfillment of its obligations.
394. The large or small extent of territory, population, or eco-
nomic and military power cannot in any degree affect the legal
equality of states as regards the enjoyment of their rights and the
performance of their duties.
The equality of states, said Sumner in the United States Senate on March 23,
1871, is a principle of international law, just as the equality of citizens is an
axiom of our declaration of independence. One cannot do to a small and weak
people what could not be done to a great and powerful people or what we would
not suffer to be done to us.
395. The natural difference between the white and colored races
cannot serve to establish a substantial difference in the legal condi-
tion of these races from the point of view of international law.
Nevertheless, complete legal equality must be, in fact, considered
as limited to the states which admit the fundamental legal ideas
that are indispensable to the establishment of the legal community
among states.
The principle of the legal equality of all the independent states which are
members of the international society must on the whole be admitted without
question. Yet, in order that such equality may be realized, it is indispensable
that states have a uniform conception of the principles which must govern
their reciprocal relations. Now, such uniformity in the legal community can
be considered as actually effective only among the states of Europe, among
those states and certain states of America, and among only a few states of Asia
and Africa. With respect to the former, Japan, now considered a great Power,
must be noted, while Persia, China, Siam, Thibet and Afghanistan are con-
sidered in some respects only as belonging to the great family. In Africa, the
Republic of Liberia is regarded as a member of the great family of states.
Compare Oppenheim, Op. cit., pp. 162-164.
396. Every act of jurisdiction of the Great Powers with regard
to smaller states, or their claim of any right to settle the difficulties
222
THE LEGAL EQUALITY OF STATES
223
in which these states are concerned, without granting them the
privilege of being represented or of asserting their rights, must be
considered as contrary to the legal equality of states.
No free and sovereign people can be compelled to recognize a more powerful
state as their superior. After the Congress of Aix-la-Chapelle of 1818, the
five Great Powers of Europe, Austria, France, Great Britain, Prussia and
Russia constituted themselves a permanent council to settle European affairs
by common accord. The development of sounder legal views and the progress
of civilization have broken down the power of that pentarchy and have in-
creased the number of the Great Powers by admitting Italy, the United States
of North America and still more recently, Japan. The result has been that,
although the Great Powers have not renounced the exercise of their right of
hegemony in questions of actual general interest, yet, whenever in the settle-
ment of affairs of importance some one or other of the minor powers have been
involved, the latter have been asked to submit their views to the Great Powers
without, however, being permitted to cast a vote.
From the view-point of law, there are neither great nor small states. Victor
Hugo wrote with reason: The greatness of a people is no more measured by
their number than the greatness of a man is measured by his stature." Letter
of Victor Hugo to Pastor Bost de Genève, Nov. 7, 1862. Cf. Nys, Le droit
international, II, p. 194, and the authorities there cited.
INEQUALITY IN FACT
-
397. Legal equality between states cannot imply equality in
fact. The natural development of each state and the increase in
power resulting from the constant progress of intellectual and
moral forces and the resulting inequalities in fact must be respected
as the natural effects of legal liberty.
398. The effective enjoyment of rights, which presuppose cer-
tain conditions of fact, may be refused to states which do not at
the present time meet the factual requirements.
One can understand, for instance, that the right to hoist a flag can only be-
long to states which have seacoasts. Therefore, Switzerland was wrong in
assuming the right to fly the federal maritime flag on the high seas.
399. A state which, by reason of traditional prejudices, of its
internal organization or its customs and religious creed, is not
competent to fulfill its international duties towards other states,
cannot request the full enjoyment of international rights on a foot-
ing of complete equality; that would require a modification of its
internal organization so as to offer effective guaranties for the
fulfillment of its duties towards other states.
400. Yet, states which entertain de facto relations with another
224
INTERNATIONAL LAW CODIFIED
state whose legal equality cannot be recognized, ought always to
comply with the rules and stipulations of conventions. As for
the rules of “common" international law, they ought to observe
those which, considering the social conditions of the uncivilized
state, must be deemed necessary for the safeguard of public and
private rights,
RESPECT OF MORAL PERSONALITY AND HONOR
1
401. All states, great and small, empires, kingdoms, republics,
principalities, or duchies, are equally entitled to the respect of their
personality and moral dignity. Each has the right to require due
satisfaction in case its personality or dignity be violated.
402. The honors due to a state and to the sovereign who repre-
sents it, in view of his title and international position, must be
regulated in accordance with international ceremonial and appli-
cable agreements.
403. No rule of international ceremonial, whether resulting from
custom or treaties, can be observed if it is offensive to the moral
dignity of a state.
404. Every state has the right to assume the title which corre-
sponds to its importance and international position. The highest
title cannot, however, entitle a state to a superior legal position,
but only to the right to such honors as are recognized by interna-
tional usage or by treaties.
In the event of a change in the original title of a state, the recog-
nition of other governments must be deemed necessary in order
that the new title may be admitted in international relations.
405. Every sovereign in his diplomatic relations with other
sovereigns has the right to use his title and to require that it be
used by others.
As regards correspondence, the forms established by diplomatic
usage must be observed.
406. It cannot be considered as contrary to the dignity of states
to agree by common consent to make use, in diplomatic corre-
spondence, of the French language, which is universally known.
On the contrary, the attempt of a government to impose the use of
its language on one or more countries in diplomatic acts, would be
derogatory to that dignity.
THE LEGAL EQUALITY OF STATES
225
PRECEDENCE AND RANK
407. No state can claim a right of precedence over other states,
so as thus to establish its legal superiority. All questions relating
to precedence and rank must be regulated in conformity with
diplomatic ceremonial and usage. These questions must be con-
sidered from the point of view of the comitas gentium.
Controversies relating to precedence and rank were agitated at great length
as late as the 18th century. History abounds with examples of ardent contro-
versies and conflicts due to claims to precedence on the part of certain states.
In the 16th century, one of the most spirited disputes arose among the diplo-
matic representatives assembled at the Council of Trent. In the 17th century,
a celebrated dispute arose at London between the Comte d'Estrade, the French
Ambassador and Baron de Divatteville, the Spanish Ambassador. Again, in
the 18th century, a notorious dispute took place between the British Ambassa-
dor, Lord Kimoul and the French Ambassador, Comte de Merle. The efforts
made at the Congress of Aix-la-Chapelle to settle such controversies failed
owing to the vanity and customs of Courts. In the 19th century, an unsuc-
cessful attempt was made at the Congress of Vienna (1815) to determine the
rank of states. Regulations, however, were adopted to determine the rank of
diplomatic agents (March 19, 1815). For the order of precedence at the time
of the signing of the final act of the Congress of Vienna, it was agreed to adopt
the alphabetical order according to the initial letter of the name of each state.
RULES OF DIPLOMATIC USAGE
408. All the states whose sovereign has the title of king are to
be considered of royal rank. They are on an equality with those
having imperial rank. These two classes of states have the right
to send and receive ambassadors, to make use of royal emblems,
crowns, scepters and coats of arms. For the subscription of trea-
tises, precedence among them is fixed by alphabetical order.
With respect to their representatives, rank and precedence are to
be fixed according to the date of the presentation of their creden-
tials.
409. Republics which have royal rank must be considered in the
same position as monarchies and other sovereign states and sub-
ject to the same rules of diplomatic ceremonial,—these rules in
their application being considered independent of the constitu-
tional differences in states.
410. States not of royal rank must be considered, from the point
of view of precedence, as inferior to monarchies and any other
states of royal rank.
226
INTERNATIONAL LAW CODIFIED
411. Semi-sovereign or dependent states, by reason of vassalage,
protectorate or feudal relations, must admit the precedence both
of the states under whose dependency they come and of other
sovereign states.
A relation of dependency naturally determines the inferiority of semi-
sovereign or protected states. Therefore, the principality of Bulgaria had to
submit to the precedence of Turkey; the same is true of the German princes
with respect to the Emperor.
At the Peace Conference of The Hague in 1899, all the states represented
signed according to alphabetical order. Bulgaria as a vassal state of Turkey,
signed after all the other powers.
412. The Pope, as head of the Catholic Church, may enjoy
precedence in his relations with other monarchs and princes of
Catholic states, but not in his relations with Russia and Protestant
states.
The Pope, although he may enjoy sovereign honors under article 3 of the
Italian law of May 13, 1871, in regard to the prerogatives of the Sovereign
Pontiff and the Holy See, is not in the same position as when he was King of
the Pontifical States. Since he had lost political sovereignty, he could no
longer invoke the application of the rules of precedence applicable between
the sovereigns of states. Article 3 of the aforesaid law, it may be observed, reads
as follows: "The Italian government pays to the Sovereign Pontiff on the
territory of the kingdom the sovereign honors and upholds the honorary prec-
edences accorded him by Catholic sovereigns." It is not possible to claim
under this article that when the Pope wishes to take part in a congress as head
of the Catholic Church, he can avail himself of the right of precedence estab-
lished in his favor when he had the dual character of sovereign of the Pontifical
State and head of the Catholic Church, since Italy undoubtedly could not
by its internal legislation bind other states.
At any rate, it is quite evident in our opinion that if the Pope should partici-
pate in an international meeting of political sovereigns, the rules which de-
termine precedence among states could not be applied. Undoubtedly, the
Pope cannot be considered as a political sovereign. It must indeed be ad-
mitted that he occupies a quite exceptional position. The respect due the
head of the Church by reason of the high authority he possesses might even
lead Protestant states to grant him the precedence he has always enjoyed, not
as king of the small state which the Papal States used to be, but as Sovereign
Pontiff. In this way, placing him outside the relations established between
political sovereigns, his true position of precedence would be determined by
the honorary sovereignty which is granted to him.
MARITIME CEREMONIAL
413. Every state has the right to fix the rules of maritime cere-
monial which national vessels must observe toward one another
and toward foreign vessels; but they cannot require the reciprocal
THE LEGAL EQUALITY OF STATES
227
adoption of these rules by other states unless there is an express
convention.
414. Every state can declare the observance of the maritime
ceremonial thus established obligatory upon ships which cross its
territorial waters or enter its ports.
415. A sovereign can never legitimately impose on foreign vessels
entering his territorial waters, a form of salute which, from a
general standpoint, may be regarded as humiliating. Such would
be the case of a salute rendered by lowering the flag or of any other
form of salute which might imply an act of subjection. Such also
would be a salute by salvos of artillery, when there is no obligation
to return them.
416. The rules governing the salute of ships meeting on the
high seas and all maritime ceremonial should be established by
common accord; in the absence of such rules, those based on cus-
tomary law and on the comitas gentium should be observed.
417. When the rules of ceremonial to be reciprocally observed
are established by treaty, their non-observance may justify a
protest and give a right to demand explanations.
418. Non-observance of the ceremonial adopted by common
accord is not sufficient in itself, however, to give rise to the pre-
sumption of an intention to offend the foreign state, unless well-
established precedents and well-defined circumstances lead to a
contrary conclusion.
419. In the absence of an agreement relating to the salute of
vessels meeting on the high seas, the rules sanctioned by usage
must be observed. These rules are as follows:
Merchant vessels meeting on the high seas are not obliged to
salute.
War vessels must salute. The ship of lower rank must salute
first. When the ships are of equal rank, the one to salute first, is
the one sailing leeward.
A war vessel must salute first when nearing a fortress or a port or
when leaving it, when meeting a squadron, when meeting a ship
having on board a sovereign or member of a royal family or an
ambassador.
An auxiliary squadron must salute a main squadron first.
420. A salute given by salvos of artillery must be returned gun
for gun; but a vessel of superior rank, which responds to the salute
228
INTERNATIONAL LAW CODIFIED
of one of inferior rank, may fire one gun less. This practice, how-
ever, could not be impelled by the consideration of superiority
in maritime power of the state to which a ship of equal rank be-
longs.
421. During solemnities, court functions and national mourn-
ing, foreign war vessels should observe the rules established by the
regulations of the state to which the port belongs. Commanders
of vessels who believe that they ought not or cannot conform to
them should leave the port.
POLITICAL EQUILIBRIUM
422. The equilibrium of forces and material power of states can-
not be deemed necessary to assure the protection of their rights
and their security.
Nevertheless, the legal equilibrium whose purpose must be to
insure in the relations of states the preponderance and sovereign
empire of law, should be considered as indispensable.
The conception of political equilibrium was understood by the older thinkers
as the proportional distribution of the material forces of states to safeguard
their security and their reciprocal rights. This conception was brought about by
the Abbé de Saint-Pierre in his Projet de trailé pour rendre la paix perpetuelle, and
was considered as one of the requirements to assuring peace and prevent-
ing a state, by reason of the increase of its territorial possessions, from dictating
its laws to all the other powers. Article 2 of the Treaty of Utrecht of July 13,
1713,contains the expression of Justum potentiæ equilibrium. Fénélon (Oeuvres,
v. III, p. 361, edition of 1835) demonstrated the necessity of checking the
increasing power of the House of Austria under Charles the Fifth, and from
that time up to the present day the policy of statesmen has constantly been to
maintain the so-called balance of power and to work towards its restoration
when disturbed by the growth of territorial possessions and conquests. At
the Congress of Vienna, the repartition of territorial possessions was justified
by the idea of maintaining the equilibrium. The dismemberment of Poland
has been justified on the same grounds.
In like manner, the annexation of Nice and Savoy was claimed by reason of
the necessity of restoring the equilibrium which was broken by the formation
and extension of the Kingdom of Italy. The preservation of Turkey has
likewise been held indispensable for the so-called balance of power, which most
certainly would be disturbed if the territorial possessions of the Porte in Eu-
rope were to be apportioned among those who covet them. For these reasons,
the statesmen of the Great Powers have agreed to maintain an order of things
which surely could not be justified. Impelled by the fear of the unavoidable
upsetting of the balance of power, and of the difficulty of restoring it, they have
preferred to maintain a state of affairs which certainly does not reflect credit
either on Christianity or civilization. When the time came, the great Powers
THE LEGAL EQUALITY OF STATES
229
were powerless to prevent the acts which have materially changed the position
of Turkey.
Useful information is to be found in the article by Nys, La théorie de l'équi-
libre européen, Revue de Droit international, v. XVI, 1893, and in the work by
Stieglitz, De l'équilibre politique, du légitimisme et du principe des nationalités
(in Russian) 1889–1892, French translation, 1893.
423. The freedom which every state possesses to provide for the
increase of its powers, cannot be limited by reason of the so-called
balance of power, if such increase does not interfere with the right
of other states and does not violate the rules of international law.
It is the privilege of the states which consider themselves men-
aced by the constant increase of power of another state, to provide
for their security and safety and to conclude alliances with one
another so as to unite their forces to resist the attacks of the grow-
ing power.
424. It must always be considered necessary for the orderly
existence of states in the international society, to determine by
legal rules the just limit of action of each of them and to assure
legal protection for the rules.
425. Every state which, by misuse of its power, would assure
its supremacy in disregard of the rights of other states, or would
extend its territorial possessions in violation of international law,
would justify resistance on the part of other states, which might
with reason consider such an attempt to secure supremacy as a
menace to their independence and as derogatory to the legal
equilibrium which is indispensable to the existence of interna-
tional society.
A certain equilibrium must be considered indispensable to assure the exist-
ence of international society. We believe, however, that such an equilibrium
will be realized only when, in that society, the preponderance of right is sub-
stituted for that of force. With a view to justifying certain pretensions to
territorial aggrandizement, diplomacy sought to have them considered as
essential for the maintenance of the equilibrium, and so in various cases the
necessity of compensation among states was advocated. Thus, in the 18th
century, they tried to justify the partition of Poland by this theory of com-
pensation, which was also sanctioned in 1878 at the Congress of Berlin, in
order to recognize the privileged position of Austria with respect to Bosnia
and Herzegovina. While we believe that a certain equilibrium is indispensable
for insuring the rational organization of international society, we cannot,
however, admit that it may consist in the equalization of material forces or in
their artificial distribution. Equilibrium cannot proceed from artificial meas-
ures; it can become effective only when law becomes preponderant in inter-
national society and when its legal protection is effectively assured. We can-
230
INTERNATIONAL LAW CODIFIED
not conceive the realization of political equilibrium in international society
until Mirabeau's prophecy comes true: le droit soit le souverain du monde.
£26. It is the duty of states, in order to insure the existence of
general peace, to fix by common agreement the limit of armaments,
so as to prevent the unjustifiable increase of the military forces of
any one of them from compelling the others to perfect their mili-
tary establishment and so cause an economic and moral disturbance
in all countries.
>
TITLE XIV
REPRESENTATION OF STATES
1
TO WHOM SHOULD REPRESENTATION BE ASSIGNED
427. The representation of a state in its relations with other
states should be assigned to the person or persons to whom its
constitution actually entrusts the exercise of governmental power.
These are:
a. The sovereign or head of the state;
b. The persons who, by constitutional law, exercise at the time
the powers of sovereignty;
c. Diplomatic agents.
THE SOVEREIGN AND HIS FAMILY
428. The person who reigns and governs as sovereign is in full
right the legal representative of the state and may, as such, exer-
cise in international relations the public power which is entrusted
to him by the constitution.
There is no difference in this respect whether the head of state
be king, emperor, president or prince.
429. The right of representation must be granted in like manner
to any person who in fact is in effective possession of the sovereign
power. As such, he may exercise all the rights attaching to this
power, with respect to the states which have recognized the actual
order of things and entered into relations with the new government.
430. He who in fact loses the exercise of sovereign power ceases
to represent the state in his acts, until he has recovered the free
exercise of sovereignty.
History affords us several instances of sovereigns deprived of their supreme
authority. Even when this is temporary, expediency may guide rulers to de-
cide whether or not they should continue to bestow on the fallen sovereign the
titles and honors which were previously accorded him; but as regards the legit-
231
232
INTERNATIONAL LAW CODIFIED
7
imate representation of the state in its international relations, they cannot
admit that this sovereign may represent the state, when as a matter of fact he
is deprived of public power and of his legal position as head of the government.
In international relations, the head of a state is he qui de facto regit: it is he,
therefore, who must be considered the legal representative of the state with
respect to other governments which intend to maintain international relations
with it or wish to renew such relations after their temporary interruption.
431. In all his acts as representative of the state, the ruler must
be deemed invested with sovereignty and subject as such to in-
ternational law.
432. The persons who belong to the family of the sovereign can-
not share in the enjoyment of the rights which are assigned to him
as representative of the state. They must, however, be considered
under the protection of international law and enjoy the rights and
prerogatives which, according to custom and international usage,
belong.to the members of reigning sovereign families.
MINISTER OF FOREIGN AFFAIRS
433. In the exercise of his functions and duties under the law of
the state, the minister of foreign affairs represents the state in his
acts.
He is considered as invested with his powers as such, from the
day he sends notice of his appointment to the members of the diplo-
matic corps accredited to the head of the state, and to the diplo-
matic agents and consuls of his own country accredited to foreign
governments.
434. The duties of the minister of foreign affairs are determined
by the law of each state.
He must be considered in principle as authorized to maintain
relations with the representatives of foreign states, and in the name
of his government to issue communications and declarations to the
said representatives; to negotiate with them treaties of alliance
and to appoint the persons delegated especially to negotiate
treaties of commerce and extradition, etc.; to prepare the instruc-
tions issued to these persons; to provide for the protection of
citizens abroad and to safeguard abroad the interests of citizens
and of the state; and to perform, in general, all acts which under the
law of the state or diplomatic usage, must be performed by the
minister of foreign affairs.
REPRESENTATION OF STATES
233
DIPLOMATIC AGENTS
435. Persons who are assigned the mission of maintaining diplo-
matic relations between the state they represent and the one to
which they are officially accredited are diplomatic agents. They
may be either ambassadors ordinary or extraordinary, public
ministers, envoys extraordinary or persons entrusted with special
missions.
. The category of persons chosen to represent the state in international re-
lations must serve to determine their hierarchical position, as well as their
rights and prerogatives by reason of official hierarchy. The category of
public ministers comprises a first and a second class: (1) resident ministers and
(2) ministers extraordinary or temporary envoys sent on special missions.
The difference in their position, as regards the object of their appointment and
their hierarchical rank, may have the effect of assigning to them certain rights
and prerogatives under the diplomatic ceremonial and to fix their position as
members of the diplomatic corps; but it does not affect their legal status, in
so far as in their acts they represent the state.
In the class of envoys extraordinary may be put all persons who have the
temporary mission of representing the state. Thus, commissioners charged
with representing their government to negotiate certain special matters, and
also consuls invested temporarily with a diplomatic mission may be included
in this class.
( 436. It is the duty of the sovereign of every state to determine
the class and rank of the diplomatic agent accredited by him to a
foreign sovereign.
Whatever may be the hierarchical position of the accredited
person, he must be considered as the legal representative of the
state as regards acts performed by him by virtue of his commission.
This arises from the fact that the sovereign commissioned him to
represent the state officially,
Under the regulations drawn up at Vienna, March 19, 1815, and completed
later at Aix-la-Chapelle, November 21, 1818, diplomatic agents were divided
into four classes. The first class comprised ambassadors and legates a or de
latere, envoys extraordinary of the Pope. The second class was composed of
ministers plenipotentiary, envoys extraordinary and internuncios of the Pope.
Ministers resident formed the third class. Chargés d'affaires constituted
the fourth class. However, this classification seems to us of no importance so
far as the representation of the state is concerned. In effect, representation
depends only on commission and mandate, not on rank, which is important
only for the determination of hierarchy and diplomatic ceremonial. There-
fore, the representative character which is attributed to agents of the first
class, must be understood as meaning that ambassadors, by virtue of the high
dignity with which they are invested, can represent the sovereign personally
and consequently enjoy certain special prerogatives.
Compare rule 462.
234
INTERNATIONAL LAW CODIFIED
(HOW
HOW THE CHARACTER OF REPRESENTATIVE OF THE STATE IS ESTAB-
LISHED
437. The public character of representative of the state is
established by the appointment of one or more persons as such, by
the sovereign of the state who sends them, and through the official
notification made to the government to which the agent is accred-
ited, which notification is expressly or tacitly accepted by such
government.
WHO HAS THE RIGHT TO SEND DIPLOMATIC AGENTS
1
438. The right to be represented by diplomatic agents is pos-
sessed by every independent state which, as a person in the in-
ternational society, actually maintains relations with other states.
This right can equally be attributed to legal entities qualified
as such and to associations whose international personality is
recognized.)
Compare rules 81-82.
Under these rules, it must be admitted that, should several independent
states be united in a "union” established for a well-defined purpose, and should
the international personality of this “union” be recognized, there could be an
international representation of the states thus limited within the scope of their
union. The North Germanic Confederation, founded in 1867, is an example of
this sort of union and representation. A federative empire which had not
the unitary form (such as the German Empire in 1871), and allowed the per-
sonality of the confederated states to subsist, could also be entitled to a dual
representation corresponding to its dual personality.
(439.
439. The right to maintain international relations through dip-
lomatic agents may be accorded a government arising out of a
revolution or civil war, whenever it is found to be in effective
possession of public power and sovereign functions and has been
recognized by foreign governments.)
While it must be left to the judgment of every government whether or not
it should enter into diplomatic relations with a government which was con-
stituted as a result of a revolution or civil war, political wisdom must impel
it not to receive diplomatic agents until the new government is not only in de
facto possession of the rights of sovereignty, but also presents the stability re-
quired in order that it may be considered capable of assuming the responsibil-
ity both for its own acts and those of the people it governs.
440. It is the privilege of the government of every state to
decide with absolute freedom whether it should establish diplo-
REPRESENTATION OF STATES
235
matic relations with the government of a state newly constituted
or continue relations with the dispossessed sovereign.
In principle, we cannot consider diplomatic relations with the
government of a new state to be established in good faith until
that state presents sufficient guaranties of stability and the former
sovereign is no longer possessed of sufficient means to restore his
authority.
441. The sovereign who is considered as effectively ousted,
cannot assume the right to maintain relations with other states
through diplomatic agents appointed by him, nor to confer on these
agents the right to represent the state.
442. The title of diplomatic agents cannot be applied to com-
missioners or agents sent by a revolutionary party during a civil
war to deliver communications to foreign governments.
The right of legation can be granted only to the one qui de facto
regit.
ACCEPTANCE OF THE DIPLOMATIC AGENT APPOINTED
443. A state which has consented to establish or to continue to
maintain diplomatic relations with another state cannot in prin-
ciple refuse to accept the diplomatic agent appointed.
444. It must be considered in conformity with sound interna-
tional custom to accredit as a diplomatic agent only a persona
grata.
The previous consent of the person invested with the character
of diplomatic agent cannot be considered as necessary to deter-
mine his status. Nevertheless, a government may refuse to re-
ceive as a diplomatic agent a person who is a citizen of the state,
or who, for serious reasons may be considered as unfit to maintain
good relations between the two governments. )
In principle, it must be admitted that the appointment of a diplomatic agent
is an act of sovereignty, and that it cannot be subordinated to the condition of
previous consent.
But since the purpose of permanent legations is to maintain good relations
between the two governments and since this cannot be done by persons who are
not acceptable and who do not inspire full confidence, the more general prac-
tice is for any government, before appointing the person whom it wishes to
accredit to another, to sound the latter on the matter and obtain its consent.
This is what, in diplomatic language, is called aggréation. It cannot, however,
be considered as indispensable and a previous condition to the exercise of the
right of legation. It is to be noted, however, that as reciprocal consent must
236
INTERNATIONAL LAW CODIFIED
always be deemed requisite for creating and maintaining legations, a govern-
ment, even after its previous agreement, may revoke its consent and refuse
to receive or to keep an envoy on particular grounds. If, on the other hand,
such refusal were arbitrary, obstinate and unjustified, it is obvious that good
diplomatic relations might be impaired and even interrupted.
445. The sending without previous consent of a diplomatic
agent may be considered as an unfriendly act, but the well-founded
refusal to receive or retain a given person as diplomatic agent
cannot be so considered.
446. The refusal to receive an accredited diplomatic agent must
be considered as effectively depriving him of his public character
not only with respect to the state to which he is accredited but
to third states as well.
An unreasonable refusal may justify the breaking off of ordinary
diplomatic relations as the government may have good reasons for
not appointing another person to represent it.
These rules are based on the idea that the sending of a diplomatic agent is
an act of sovereignty, and must be, consequently, exercised with the fullest
independence. It is only according to the comitas gentium, that the mainte-
nance of diplomatic relations presupposes the express or tacit consent of the
state to which the diplomatic agent is sent. Consequently, in the absence of
such previous general or special consent, the government may always refuse
to receive a diplomatic envoy charged with a special mission, or refuse on good
grounds to continue to negotiate with the diplomatic agent already accredited.
r
POWERS OF A DIPLOMATIC AGENT
447. The powers of a diplomatic agent as representative of the
state which has accredited him are those specified in his creden-
tials, indicating the object and scope of his mission. These powers
can be better fixed and specified in the official notes addressed and
communicated to the foreign sovereign.
448. The instructions given a diplomatic agent in his creden-
tials, and specified and determined by means of notes communi-
cated in diplomatic form to the foreign sovereign and government,
cannot be considered as modified by secret instructions given by a
government to its diplomatic agent, but not communicated offi-
cially to the foreign government.
449. The formalities to be observed in the presentation of cre-
dentials and the communication of notes and official acts are de-
termined by the ceremonial and rules of diplomatic intercourse.
450. The diplomatic agent, in all acts performed within the
REPRESENTATION OF STATES
237
scope of his instructions, as they appear from his credentials and
the notes officially communicated, legally represents the state
which has accredited him. Therefore, the obligations which he
contracts by virtue of his instructions, must be considered as
contracted in the name of the state he represents, subject always,
for their effectiveness, to the obligation of ratification by the
sovereign or the person who has that power under the constitution.
RESPONSIBILITY OF THE DIPLOMATIC AGENT
451. The diplomatic agent is not personally responsible toward
the other state or states for what he does as representative of the
state. The government which accredited him is responsible for
such acts. This responsibility must be determined and fixed in
accordance with the rules of international law applicable to the
responsibility of states in their reciprocal relations.
452. In all matters relating to the fulfillment of his mission, the
diplomatic agent is entitled to personal inviolability, in peace as
well as in war. When war has been declared, however, he can
enjoy inviolability only during the time necessary for him to leave
his residence and return to his own country or proceed elsewhere.
RIGHTS AND PRIVILEGES OF DIPLOMATIC AGENTS
-
453. A diplomatic agent has the right to be allowed to fulfill
the high mission with which he is entrusted with complete freedom
and independence. He may, therefore, demand the enjoyment of
the rights and privileges which are considered as appropriate by
international custom. Such privileges are:
a. Exemption from inspection of his baggage and of any package
addressed to him when sealed with the seal of his govern-
ment;
b. Immunity from customs duties;
c. The exercise of his own religion and consequently, the right
to have a chapel and a minister with the personnel necessary
to celebrate divine service;
d. Exemption from personal taxes and forced loans.
454. A diplomatic agent may also demand the enjoyment of
the immunities and privileges established by usage or
conventions or reciprocity.
238
INTERNATIONAL LAW CODIFIED
Such are:
a. Exemption from war taxes, the obligation of billeting, etc.;
b. Exemption from charges imposed on resident foreigners.
Publicists admit that the privileges and iminunities which the diplomatic
agent may enjoy, cannot be determined according to uniform and absolute
rules. Some of them are founded on international customary law. Others are
based on the comitas gentium and must be governed either by conventions,
usage or reciprocity. Exemption from taxes and immunity from customs
certainly have no legal basis. It can even strictly be held that since the diplo-
matic agent must pay the taxes on consumable goods, he must pay the taxes
on goods brought into the country to satisfy his personal needs. Compare:
Heffter, Droit international, $ 217; Pradier-Fodéré, Cours de droit diplomatique,
v. 2, p. 45; Calvo, Droit international, S$ 1529 et seq.; Bluntschli, Droit inter-
national codifié, rules 222-223; Oppenheim, International law, v. I, 2d ed.,
pp. 460–472.
455. It is incumbent upon the diplomatic agent to make use of
his privileges with dignity and in good faith and not to avail him-
self of the immunities that are granted to him either to favor third
parties or to procure for himself certain commercial advantages.
456. Customs officers cannot be prohibited from examining,
with the proper respect due a foreign minister, packages and
goods addressed to the diplomatic agent not under the seal of his
government. By the comitas gentium, however, it is considered
obligatory not to subject to inspection the packages of a diplomatic
agent who has declared that they do not contain any goods pro-
hibited or intended for commercial purposes.
457. The diplomatic agent may demand the honors and ex-
emptions which, under the usage of ceremonial and "common”
law are due him in accordance with his rank, mission and hier-
archical position.
458. The diplomatic agent who has a permanent mission, may
hoist over his official residence the flag of the state he represents
and affix thereon the arms of his state, or an inscription designed
to indicate that this place is the seat of the legation.
459. Diplomatic agents have the right to exercise with respect
to their countrymen all the functions assigned to them under the
law of the state they represent. Their acts of this character must
be held valid even in the state where the legation is established,
except for express reservations duly stipulated by the government.
This rule is based on the idea that when a state agrees that another state
may establish a legation, it agrees implicitly by that very fact that diplomatic
REPRESENTATION OF STATES
239
agents may exercise with respect to their countrymen all the privileges which
are conferred on them under the law of the country they represent. This has
special reference to the authentication of documents, the drawing up of wills
and certain acts affecting the civil status, such as the celebration of marriage
between citizens. Nevertheless, the government to which the diplomatic
agent is accredited may, if it sees fit, make reservations as to the validity on its
territory of acts affecting the civil status performed by said agent.
PREROGATIVES OF DIPLOMATIC AGENTS
460. Whenever the rules of “common” law are applied to any
matter concerning the diplomatic agent in his private relations,
having no connection with the exercise of his functions, he has the
right to expect that his high position and his character as repre-
sentative of a foreign state will be taken into account.
461. A diplomatic agent cannot be subject to personal arrest
for debts, as a private person would. He is not obliged to appear
personally in court to be examined, to make a deposition, or
to perform acts required by the code of procedure. He may de-
mand that an examining magistrate proceed to his residence for the
performance of the said acts, giving him proper notice in advance.
462. A diplomatic agent may claim the enjoyment of all the
honorary prerogatives generally admitted by ceremonial and
international usage, taking into account his rank and class.
These prerogatives, for ambassadors and ministers of the first
class, are:
a. The right to the title of Excellency on the part of those who
treat with them either by correspondence or personally,
provided it is sanctioned by the ceremonial of the court
of the sovereign to which the diplomats are accredited;
b. The right to have a throne in their reception room;
c. The right to remain covered during their presentation cere-
mony when the sovereign to whom they are accredited
himself remains covered;
d. The right to receive military honors when they officially
attend public ceremonies.
It is because of these honorary prerogatives that it is commonly said that
only ambassadors represent the sovereign who has accredited them.
Since diplomatic agents of the second and third classes do not represent the
person of the sovereign, they cannot enjoy the honors reserved to the sovereign.
Consequently, they have no direct access to the head of the state, whose
audience they must request through the Minister of Foreign Affairs.
240
INTERNATIONAL LAW CODIFIED
All these matters relate to diplomatic ceremonial and etiquette.
Compare rules 401, 406, 407.
INVIOLABILITY OF CORRESPONDENCE
463. The correspondence of a diplomatic agent with his govern-
ment must be considered inviolate, whether it be carried on by
ordinary means or by special couriers.
The responsibility of the state for violation of correspondence
cannot be considered as having ceased directly after diplomatic
relations between the two governments have been broken. It
must, on the contrary, continue during that reasonable time which
must always be given the diplomatic agent to leave his post.
464. The molestation of the official correspondence of diplomatic
agents is on a parity with the violation of exterritoriality, the
enjoyment of which they are entitled to in the exercise of their
functions as representatives of their sovereign. The government
which infringes such exemption, therefore, must be held responsi-
ble under international law for the grave offense involved in a
violation of state secrets.
IMMUNITIES OF DIPLOMATIC AGENTS AND VIOLATIONS THEREOF
465. Diplomatic agents must be held completely and abso-
lutely immune so far as concerns their personal responsibility in
the performance of their functions as representatives of a foreign
state.
Even when the case demands that they be subject to the appli-
cation of the rules of "common” law for their private acts, it is
always necessary to safeguard the prestige and the respect due to
their dignity. This must be considered indispensable for the
protection of the reciprocal interests of states and for the readier
maintenance of their diplomatic relations.
We do not admit, in principle, the absolute immunity of diplomatic agents,
as it is recognized by time-honored theory (compare rules 334 et seq. and 346).
Nevertheless, it should be recognized that diplomatic agents, as representa-
tives of foreign sovereigns, must be protected in their high mission and freedom
of action; otherwise, international relations of which they are the mediums,
would become impossible. It is, therefore, evident that the rules, which in
certain cases justify their submission to the ordinary courts, must normally
cease of application by reason of the necessities of the case and the require-
5
Yn y su
!
REPRESENTATION OF STATES
241
ments looking to the friendly relations of the several states. Consequently
any question which concerns diplomatic agents must be examined with ex-
treme moderation, taking into account their high mission and the principles
both of the law of nations and of the political policy of each country. Even
when diplomatic agents abuse their position it must be considered preferable
to have them recalled by their government rather than jeopardize friendly
relations with the state they represent.
466. Any offense offered to the representative of a foreign state
as such, involves the direct or indirect responsibility of the gov-
ernment and must be deemed a violation of the “common” law
of the international society.
467. We must admit the direct responsibility of the government
for any offense against a foreign diplomatic agent offered by an
official intrusted with the maintenance of diplomatic relations,
provided the head of the government has not frankly disavowed
the acts of its official and made proper amends.
468. The indirect responsibility of the government must be
admitted in case of an offense against a diplomatic agent by a minor
official of the state, when the government, having had notice of
the act, has failed to make proper reparation.
Such responsibility must also be admitted in case of an offense
on the part of private individuals, when the government has not
taken the necessary steps to discover the authors and punish them;
or when it has failed to take all necessary measures to prevent the
offense, when this was possible.
469. The responsibility of the state should always be diminished
when the injury to the diplomatic agent has resulted from his own
imprudence, and it should be still less when he has virtually pro-
voked it.
470. If, by reason of the very nature of the acts or of circum-
stances, the offense directed against the foreign minister by indi-
viduals is presumably unconnected with his office, it cannot give
rise to diplomatic complaints, except to obtain proper explanations.
The offense may, however, constitute a crime on the part of
the offenders under municipal law, when they knew the character of
the person injured, or when they could not have been ignorant of it.
The laws of different states provide in various ways for the punishment of
offenses against foreign ministers. Great Britain has a special law on the
matter, "an act for preserving the privileges of ambassadors and other public
ministers of foreign princes and states" (Statute of 7 Anne, chap. XII.) In
Italy, such offenses are punished by article 130 of the Criminal Code; in
242
INTERNATIONAL LAW CODIFIED
France, by the law of July 29, 1881, articles 37 and 47, and by the law of
March 16, 1893. In Germany, there is a relevant provision in article 104 of
the criminal code; in Austria, in article 494; in Holland, in articles 118 and 119;
in Portugal, in article 159; in Russia, in article 261; finally, in Belgium, in
articles 6 and 7 of the law of March 12, 1858.
In some countries, the criminal code contains special provisions; in others,
on the contrary, "common” law is applied with respect to the punishment of
offenses against public officers. Pradier-Fodéré believes that, in the case of an
offense against the ambassador of a foreign country, articles 84 and 85 of the
French criminal code, which punish hostile acts that have exposed the state
to a declaration of war, should be applied. (Cours de droit diplomatique, v. II,
p. 13.)
See Fiore, words Agenti diplomatici in the Digesto italiano, no. 86 et seq.,
where the laws of the different states are set forth.
PERSONS ATTACHED TO THE LEGATION
471. Persons attached to the legation, who exercise public
functions under the law of their home state and who have been
officially recognized as such by the government where the legation
is established, should enjoy the rights and prerogatives of diplo-
matic agents in the exercise of such of their functions as are indis-
pensable to the right of legation on the part of the state repre-
sented.
472. When the Minister of Foreign Affairs has received notice
of their official position and privileges, officials temporarily at-
tached to the legation should be considered as an integral part of
the legation, and should enjoy, with respect to their functions, the
rights and prerogatives which according to international law, per-
sons acting in the name of the state must enjoy.
473. An official attached to the legation, who in case of the death
or absence of the foreign diplomatic agent, is called upon to act in
his place, has the character of a temporary diplomatic agent and
should enjoy provisionally all the powers, rights and prerogatives
of the titular diplomatic agent.
474. Persons composing the family of the minister do not enjoy
any other rights and prerogatives beyond those which are due them
in accordance with propriety and diplomatic ceremonial, in con-
sideration of the high dignity with which the minister as head of
the family is invested. These persons cannot enjoy the rights and
prerogatives which, according to international law, belong to the
representative of a foreign state.
1
REPRESENTATION OF STATES
243
Since all the rights and prerogatives which belong to foreign ministers under
international law, are founded on the theory that they represent the state in
their acts, and since the independence of states does not allow any state to ex-
ercise its jurisdiction according to “common” law over the acts of another,
either directly or indirectly, it follows that the same right must be granted to
persons attached to the legation when they perform acts or exercise public
functions by delegation from the state they represent.
The wife of a foreign diplomatic agent cannot strictly share the rights and
immunities which belong to the minister. Nevertheless, she has the right to
share in the dignity of her husband and to participate in the respect which is
due him, and it is clear that the independence which he enjoys and the excep-
tional respect to which he is always entitled, by reason of his high functions,
must extend to his wife and family more than to other persons.
See, Martens, Guide diplomatique, v. I, p. 79.
475. Persons attached to the service of a foreign ambassador or
minister cannot enjoy any immunity; they must remain subject
to the usual jurisdictions, even with respect to acts committed by
them in the performance of their duties.
Nevertheless, the local authorities must always act with reserve
and prudence because of the respect due to the diplomatic'agent
and of the obligations of courtesy incumbent on the government
to which he is accredited.
In every question concerning diplomatic agents and their suite, it is always
necessary to differentiate between considerations based on the strict principles
of international law and what political tact and prudence may suggest. It is
easy to understand that, in order to maintain amicable relations with the gov-
ernment represented, it is necessary to act with a great deal of tact even when,
for example, it involves the question of applying police regulations to the
coachman of a foreign minister when they have been violated. Instead of
following the principles of law, it is preferable for the government to which
the minister is accredited to be guided by rules of courtesy.
Compare the decision of the French Court of Cassation of June 11, 1852,
Journal du Palais, 1852, v. 2, p. 57.
See also the case of the coachman of the French ambassador at Berlin in
1888 in Calvo, Dr. internat., v. 6, § 315, and the decision of the Alderman's
Court of Berlin of December 18, 1888 (Clunet, Journal, 1889, p. 82).
RIGHTS OF DIPLOMATIC AGENTS WITH RESPECT TO THIRD POWERS
476. Diplomatic agents may avail themselves of their rights
and prerogatives in the foreign countries they must traverse to
reach the territory of the state to which they are sent, when they
have established their character and have been authorized by the
government of the third power to travel as foreign officials through
its territory
244
INTERNATIONAL LAW CODIFIED
477. The public character of a diplomatic agent is considered as
established with respect to a third state when the foreign minister
has advised the government of that state of his character and has
been advised that he may officially travel through its territory to
reach his post.
478. Even in the absence of such previous authorization, when
a diplomatic agent has by official documents shown his authority
and his public character, he must be considered under the protec-
tion of international law and may require, even in a third state, the
respect which is due him as the representative of his own state, and
the enjoyment of the rights and privileges which according to
"common” law may be deemed compatible with the safety of the
state.
479. It is always incumbent on states that wish to maintain
amicable international relations and not violate the principles of
the comitas gentium, to treat with respect and consideration for
their high functions, foreign diplomatic agents who travel through
the country to reach their destination and have announced their
position by means of official, trustworthy documents.
480. No government can obstruct the freedom of diplomatic
relations and claim any justification, in the protection of its own
interests, to disturb or render such relations difficult; it can only
take all the measures which, according to the circumstances of the
case, may be necessary to protect the safety of the state and to
defend its interests.
Under this rule, it must be admitted that no government can hinder abso-'
lutely the free correspondence of diplomatic agents with their own govern-
ment, nor make use of the monopoly of submarine cables to prevent or delay
in time of war the free correspondence of foreign ministers with their sovereign,
as happened in 1899 during the war between Great Britain and the South
African Republic.
In like manner, it must be admitted that a government cannot absolutely
forbid a diplomatic agent to travel through its territory to reach his des-
tination or to return to his country. It can merely take the precautions
justified by necessity for the protection of the interests of the state. Thus,
for instance, it may deny a diplomatic agent the privilege of sojourn in its
territory, or trace for him in advance an obligatory route.
0
2
)
DUTIES OF DIPLOMATIC AGENTS
481. It is incumbent on a diplomatic agent to protect scrupu-
lously the interests of the state he represents; to carefully look to
REPRESENTATION OF STATES
245
the maintenance of good relations between the respective govern-
ments; to remove any cause which might disturb harmony be-
tween the two governments.
It is incumbent on him, also, to safeguard the interests of his
fellow nationals and to defend them against any abuse of power
on the part of the state to which he is accredited.
482. The diplomatic agent is bound to fulfill his mission with
prudence and moderation. He must abstain from any direct
interference with the local administrative or judicial authorities
with a view to defending the interests of his countrymen; he must
be content to take diplomatic action with proper reserve before
the Minister of Foreign Affairs. He must scrupulously avoid every
form of pressure, provocation and threat, and content himself
with giving his assistance to the just claims of his fellow nationals,
by facilitating them in pursuing the regular channels to obtain
justice from the local authorities.
483. It devolves upon the diplomatic agent to respect the in-
stitutions and national customs of the country. He must abstain
from every act calculated to give affront to the convictions of the
people; he must also respect popular prejudices, of which the
masses, less cultured, are especially jealous.
He must refrain from fomenting any conflict between political
parties and abstain from any intrigue to approve or disapprove the
acts of the government.
484. Any direct or indirect interference of diplomatic agents in
the internal affairs of the state to which they are accredited must
be considered as directly contrary to their mission, and may justify
the government in preventing or repressing such an illegitimate
interference.
The most frequent cases of interference of diplomatic agents in internal
affairs are those of the envoys of the Pope, who by exercising a direct action
on the clergy, have used their influence to uphold political parties. Thus, in
1895, Monsignor Agliardi, Papal Nuncio in Austria, interfered with the in-
ternal affairs of that country, criticising politics on certain points of interest to
the Catholic religion, by means of speeches he addressed to the Catholics. In
France, where the struggle between the parties is more accentuated, the Papal
Nuncio, on several occasions, exercised his influence on the national clergy to
sustain the political views of a particular party, at times encouraging the faith-
ful to resist the laws promulgated by the government. This was done by Mon-
signor Ferrata, Papal Nuncio, in 1894 and more recently, by Monsignor Mon-
tagnini. The incident arising from the seizure of the documents of the latter
was a consequence of the undue interference of the Pope's envoy. This is
246
INTERNATIONAL LAW CODIFIED
not the place to discuss the matter. It would be necessary, in the first place,
to decide whether the Pope's envoy to France was in the position of a diplo-
matic agent with all the prerogatives assigned to such agent under interna-
tional law.
485. A diplomatic agent must not avail himself of the privilege
of exterritoriality which the legation enjoys, to make it available
to conspirators who might wish to assemble with impunity in
order to prepare or uphold a revolution or to organize an attack
against the security of the state or the authority of the govern-
ment. The non-observance of such duty would justify all the
measures taken by the government to prevent an attack against
the safety of the state, even by withdrawing the privilege of ex-
territoriality from the legation building.
486. A diplomatic agent cannot shelter in his legation persons
wanted by the police or local judicial authorities. He can only
give protection to political offenders and refuse to turn them over
to the proper local authorities.
487. A diplomatic envoy, in order to safeguard his independence
and freedom of action toward the government to which he is ac-
credited, cannot accept any honorary distinction nor any benefits
from said government, without the authorization of his own
government.
As a rule, a diplomatic agent cannot accept any decoration or present from
the government to which he is accredited without the authorization of his own
government.
OBSERVANCE OF CEREMONIAL
488. A diplomatic agent may require that the rules established
by the practice of diplomacy, ceremonial and usage, be ob-
served; he has, in case of non-observance, the right to demand
and obtain an explanation, so as to preclude any unfriendly in-
tention on the part of the government to which he is accredited.
489. The formalities to be observed at the time of the reception
of diplomatic agents, of the presentation of their credentials, as
regards visits and precedence are those established by the rules of
diplomacy and court ceremonial.
REPRESENTATION OF STATES
247
SUSPENSION OF THE POWERS OF A DIPLOMATIC AGENT
490. The powers of a diplomatic agent must be considered as
temporarily suspended:
a. In case of the death, deposition or abdication of the head of
the state by whom the minister was decredited, so long as
the latter has not been officially instructed by the succes-
sor to the throne to announce his accession.
b. When, by reason of a revolution or any other cause, the politi-
cal constitution either of the minister's home state or of
that to which he is accredited, undergoes a change, so long
as the respective governments have not, on the one hand,
given official notice of the occurrence, or acknowledged it
on the other.
c. When, for personal reasons, the diplomatic agent finds him-
self in fact absolutely unable to fulfill his mission.
d. When the diplomatic agent has officially resigned, so long as
his resignation has not been accepted.
491. When the temporary suspension of the diplomatic mission
takes place, the diplomatic agent does not lose ipso facto the char-
acter of representative of the state, nor the enjoyment of the rights
and privileges which, according to international law, he possesses in
that capacity.
CESSATION OF THE DIPLOMATIC MISSION
492. The diplomatic mission ceases:
a. When the agent was sent on a special mission which has
terminated;
b. When recalled by his government, the government to which
he is accredited being notified of the recall;
c. When the territorial sovereign has sent him his passport,
fixing a time limit to leave the territory of the state;
d. When he has sent in his resignation and its acceptance has
been noted by the government to which he is accredited
as well as accepted by his own;
e. When war is declared between the two states.
493. In whatever manner the diplomatic mission may cease,
not excluding the case of a declaration of war, it is always necessary
248
INTERNATIONAL LAW CODIFIED
to grant the minister a easonable time limit for returning to his
country and to assure him of his privilege of personal inviolability
and security until he crosses the frontier.
USURPATION OF DIPLOMATIC FUNCTIONS
494. Whoever assumes the character of representative of a
state and exercises the functions of a diplomatic agent without
being legally authorized thereunto, should be held guilty of vio-
lating international law and may be punished accordingly, not only
in his own country, but also in the country in which he has usurped
diplomatic functions.
TITLE XV
CONSULS
GENERAL CHARACTERISTICS OF CONSULS
495. Consuls have not in general the characteristics of diplo-
matic agents. Nevertheless, they must be regarded as public
officers of the government which has appointed them; all of their
acts must be considered as of a public character. In the exercise
of their duties they may claim the enjoyment of the rights and
privileges which are granted them according to international law.
496. Consuls may be considered as the representatives of the
state in its political relations with the state to which they are sent
only in cases where the exercise of diplomatic duties has been
assigned to them with the formalities indicated for diplomatic
agents. In that event, they are subject to the rules which govern
diplomatic agents, by reason of the duties they exercise and within
the limits of their appointment.
We believe that the substantial distinction between diplomatic agents and
consuls must be maintained and that the former only should be given the
power to represent the state. This cannot, however, prevent a government
from assigning to its consul duties of a political nature, by instructing him to
represent the state. We are of the opinion that in such case, it is indispensable
that the special political powers assigned to the consul be determined and speci-
fied in the credentials which he must present to the foreign government.
There are numerous instances of diplomatic duties assigned to consuls
general. Such duties are especially assigned by states of secondary impor-
tance, for example, by certain republics of South America, and by states which
do not have full sovereignty, as Egypt.
497. Consuls sensu stricto are officials sent by a state to a city
of another state there to exercise their public functions, consules
missi. They are not allowed to engage in business.
The name of consul is also given to officials who, while not
citizens of the state sending them but of the state to which they are
accredited, have instructions to exercise consular duties in another
country. They are called consules electi and constitute a class
249
250
INTERNATIONAL LAW CODIFIED
inferior to the first, that of consules missi. They may engage in
business.
The full enjoyment of the rights and privileges assigned to
consuls under international law must, in principle, be considered as
extended to consules missi.
ESTABLISHMENT OF CONSULATES
498. Consulates can be established only by virtue of a previous
agreement of the two governments, either a consular or any other
convention or agreement.
It is, however, considered contrary to good international relations
arbitrarily to refuse the authorization for the establishment of a
consulate at places where the commerce between the citizens of
the two states has assumed considerable proportions.
499. When, in the convention between two states, the cities
where consulates are to be established have been decided upon, the
express consent of the two governments must be considered es-
sential to the creation of a consulate at a place not indicated in the
convention.
In principle, establishing consulates must be considered as within the sphere
of the reciprocal freedom of states. But since, in places where commercial
relations assume, in fact, a great development, the reciprocal interest of states
that desire to continue good relations requires that the institutions capable
of contributing to the development of commerce and the protection of public
and private interests be promoted, the arbitrary refusal of the creation of
consulates may with reason be considered as an unfriendly act so far as the
maintenance of good relations between the two states is concerned. Such
unjustified refusal might even be considered offensive by the state which de-
sires to establish the consulate and has made a formal request to that effect.
500. When the two contracting states have reserved to them-
selves the reciprocal right to establish a consulate or vice-consulate
in the cities, ports or places of their respective territories without
indicating the location of such consulate, the right of one of the
parties to prohibit the other from establishing a consulate in a
certain place is always reserved.
This rule is based on the principle of independence and of the respect of the
rights of territorial sovereignty. The general privilege to establish consulates
in the respective territories does not imply the right to establish them against
the will of the territorial state in any place within its jurisdiction. It can only
be admitted that when a port is open to trade and consulates of different states
are established there, the territorial sovereign cannot limit the right of the for-
9
CONSULS
251
eign sovereign under the general agreement by forbidding him to establish a
consulate in that port. Indeed, a restriction that would not apply to other
states would not be justifiable.
POWERS AND DUTIES OF CONSULS
501. The powers of consuls, in so far as they constitute their
right as public officers to exercise duties as such, find their basis in
the law of the state to which they belong. Every power, therefore,
implies the right of the consul as a public officer under the law of
the state which has appointed him.
His duties denote the exercise of the powers of the consul, under
the rules established between the two states by a consular conven-
tion or treaty of commerce.
502. Aside from special rules established by common agreement
between the two states, it must be admitted in principle that
consuls have the right to protect the interests of their fellow-
citizens, to lend assistance to their countrymen, and to see that
the rules contained in treaties of commerce and navigation and in
the agreements concluded between the two states are applied to
their countrymen.
Moreover, they may exercise administrative functions with
respect to their fellow-citizens, e. g., those of public registration
officers and all other duties assigned to them with respect to the
said citizens under the laws and regulations of their country. The
acts thus performed by consuls have in the country which appointed
them such legal value as the law of their state provides.
503. A consul cannot exercise any functions producing full
legal effects in the country where he resides, except when the
exercise of his powers under his national law may be considered as
admitted by virtue of the conventions concluded between the
two states.
To determine the powers of the consul of a state, we should first refer to
his national law, to see whether or not he is competent to perform a specified
act. His competence must be founded upon the law of his country as amplified
by regulations. Thus, for instance, Italian consuls, under article 171 of the
consular law may not only execute judicial commissions which are sent to them
by the courts of Italy, but are also authorized to execute those sent them by
foreign courts. Consequently, they have the power to undertake searches,
make valuations, hear witnesses and receive depositions of Italian citizens
established in or passing through their consular district. When, on the other
hand, the question is to determine the exercise of his duties, with relation to
252
INTERNATIONAL LAW CODIFIED
the country of his residence, it is indispensable to refer to the convention con-
cluded between the two states. No function directly or indirectly implying a
jurisdictional or imperative power can be exercised except under the consular
convention. This, for example, is the case with respect to the right to affix
seals and to institute guardianship, etc.
504. The powers of consuls must be considered as limited, not
only when the limitations proceed expressly from the convention,
but also when the exercise of such powers is inconsistent with the
respect due to territorial law.
Even when, in the convention, the exercise of a power belonging to the
respective consuls is not expressly reserved, the limitation may, nevertheless,
arise from territorial law.
Let us suppose, for instance, that the territorial law stipulates that in all
its civil effects, a marriage is valid only when celebrated before the territorial
civil officer, and that the said law thus excludes the civil effects of a marriage
celebrated by a consul, even though the intended husband and wife be fellow-
citizens of the consul. In that case, the character of a civil officer conferred
on the consul with respect to his fellow-citizens by the law of his country must
be considered as limited, from the view-point of the territorial effect of acts
under territorial law, from which it is not permitted to derogate.
WHEN IS THE CHARACTER OF CONSUL ESTABLISHED
505. A consul can only exercise his functions in the country
where the consulate is established from the time the government
of that country has officially recognized him.
506. The official recognition of the public character of a consul
must be considered as effected through the observance of terri-
torial laws and regulations relating to the official acceptance of
foreign consuls.
Official relations between the local authorities and the consul are usually
established as a result of the official communication made by the government
which sends the consul and of his official acceptance as such by the territorial
authorities, in conformity with local laws and regulations.
Under the laws of certain countries, a foreign consul is accepted through
the official note which recognizes him as such and which is called exequatur.
This is the case in France, Italy, Spain and the United States. In other coun-
tries, the official letter of acceptance is called placet. In still other states, like
Russia and Germany, the consul is simply advised that his appointment has
received the exequatur. In Austria, an official visé is affixed to the official letter
of communication.
507. The exequatur can be withdrawn not only in cases deter-
mined by the convention, but also because of reasons personal to
CONSULS
253
the consul. In the latter case, however, the government which
sent him has the right to demand and obtain explanations.
PROTECTION OF CITIZENS
508. Consuls must always be considered as authorized to pro-
tect the interests of absent or incompetent citizens of the state -
which sent them; they may do whatever may be required by cir-
cumstances to safeguard and protect the rights and interests of
these citizens, observing, however, the provisions both of the
territorial law and of the consular convention.
509. Even when not authorized by a convention to affix seals
in case of the death of a citizen, consuls may nevertheless officially
request the local authorities to provide for the protection and
conservation of decedents' estates and rights of inheritance; they
may be present or assist in all the proceedings of affixing and remov-
ing seals, drawing up the inventory and reports of the proceedings,
and the prompt sale of perishable property of the estate. They
may, for these purposes, request the local authorities to advise them
of the date on which the various acts in the proceedings will be
undertaken, and request that they be expedited. They may,
moreover, require that the effects and securities inventoried be
duly preserved, and supervise their preservation. They may
demand that the funds realized from the sale of securities and
property be deposited in public banks so as to earn interest,
and they may prosecute the claims of deceased persons. In a word,
they may do in the foreign country everything the interested
parties are authorized to do under the law, provided they give
their assent or are otherwise legally represented. When the in-
terested nationals are present or legally represented, they may
assist them to obtain the proper application of the law and of
all the proceedings necessary for the preservation of their rights.
510. Consuls cannot, unless authorized by the consular con-
vention, institute a guardianship or trusteeship in conformity with
the law of their country; but they may always, in the interest of
heirs, see to it that the guardianship is duly instituted and operates
properly, referring the case if need be to the competent local
authorities and assisting the interested parties before the courts.
511. The right of consuls to assist their nationals in all matters
254
INTERNATIONAL LAW CODIFIED
not regulated by the consular convention, considering that it is
based on the comitas gentium, cannot limit the power of the ter-
ritorial authorities to apply the law of their country. Nevertheless,
they must show the greatest courtesy to the consul who has asked
assistance for his fellow-citizens.
DUTIES WITH REGARD TO THE MERCHANT MARINE
512. Consuls have the right to protect the merchant vessels
of their country and to exercise over them a police jurisdiction
consistent with proper respect for the local laws and the port
regulations. To that end, they may receive the declarations of
the captain, members of the crew and passengers with regard to
events having occurred on board during the voyage, examine the
ship's papers and exercise on board the ship all the powers con-
ferred on them by their national law. They may, furthermore,
require compliance with the local laws and regulations relating to
the police of the port, the loading and unloading of vessels and the
safe storage of merchandise.
513. Consuls may, without opposition from the local authorities,
observe the provisions of their national law for settling minor
difficulties which have occurred on board a national merchant
vessel, provided their consequences do not extend beyond the ship.
They may also settle disagreements between the captain and the
crew by applying their national law and render assistance in all
cases to the master of the ship when the local authorities are per-
mitted by the local laws and regulations to interfere on board.
514. Consuls must be regarded as authorized to look after the
property belonging to sailors of their country who may have died
on board during the voyage or at the port of arrival. They may,
therefore, proceed to inventory the effects and undertake other
steps, except those requiring acts of sovereignty, for the preserva-
tion of the property of a decedent's estate, for which their right
to apply to the proper territorial authorities must be recognized.
515. Consuls may, in the interest of their fellow-citizens, require
the observance of the local laws, statutes and regulations relating
to the police of ports, the loading and unloading of vessels and the
safe storage of goods.
It devolves upon them, however, to carry out their duties of
CONSULS
255
assistance with moderation and discretion, and on the other hand,
the local authorities must not, on the pretext of irregularity, reject
or obstruct the intervention of a consul called upon to protect
the merchant marine of his country; on the contrary, they should
observe toward him all proper courtesy.
516. Consuls cannot exercise coercive power over members of
the crew of national merchant ships, who have deserted and are
in port simultaneously with the ship. They may, however, request
the assistance of the local authorities in returning on board men
who in fact belong to the crew and are needed to man the ship.
Yet these individuals can only be arrested in conformity with the
provisions of the appropriate consular convention. *
DUTIES OF CONSULS IN UNCIVILIZED COUNTRIES
517. The duties of consuls in uncivilized countries must, in
general, be considered as more extensive than in civilized countries;
they must, in principle, be governed by special treaties or by
capitulations.
518. Consuls must be considered as having, in the countries
where capitulations are in force, a right of jurisdiction in civil
and criminal matters, as well as the powers assigned to them by
the law of their country for the administration of justice and the
execution of judgments rendered by them.
As regards the exercise of consular jurisdiction in countries where capitula-
tions are in force, compare rules 357 et seq.
See also, Contuzzi, La istituzione dei consolati ed il diritto internazionale
europeo nella sua applicabilità in Oriente, Naples, 1885,-Féraud-Giraud,
De la juridiction française dans les Echelles du Levant, Paris, 1866.—Lawrence,
Études sur la juridiction consulaire en pays chrétiens et en pays non chrétiens,
Leipzig, 1880.
519. In principle, consuls enjoy, in uncivilized countries, the
immunities, freedom and privileges indispensable to the exercise
of the powers vested in them. The privilege of exterritoriality
must be considered as granted to them, and must also be recog-
nized on the part of persons attached to the consulate, such as the
[By sections 16 and 17 of the United States Seaman's Act (Act of March 4,
1915 38 Stat. L. 1184) arrest for desertion and the assistance of the local
authorities in effecting such arrest were abolished, and directions given to the
President to give notice to foreign governments of the termination of any
treaties inconsistent with the above provisions of the Act-Transl.]
256
INTERNATIONAL LAW CODIFIED
vice-consul, interpreters, dragomen, and other clerks of the con-
sulate placed under the immediate control of the consul.
520. The privilege of exterritoriality must also extend to the
house where the consulate is established. The local authorities
cannot take any jurisdiction over this house; they are bound to
protect it in case of public disturbance, as well as the consul and
persons attached to the consulate. If he requests it, they must
give the consul a safe-conduct, and assure him sufficient protec-
tion to insure the inviolability of his person and residence.
The exceptional position of consuls in non-Christian countries and in Mus-
sulmen and uncivilized countries makes it indispensable that they be vested
with more extensive rights and privileges than those enjoyed by ordinary
consuls.
The enumeration of these rights and privileges is found in capitulations and
in the various treaties concluded by each state. In principle, however, it must
be admitted that, since in non-Christian countries the consul lawfully ad-
ministers civil and criminal justice and is one of the judicial authorities of the
country to which he belongs, he must be considered as invested with all the
rights, prerogatives and privileges which are deemed indispensable for main-
taining the independence of the foreign state in the exercise of its powers in
the administration of justice.
PREROGATIVES OF CONSULS UNDER
COMMON" LAW
521. The rights and prerogatives of consuls under "common”
law must be accorded in principle only to consular envoys (con-
sules missi), that is, to those who are citizens of the state which
has appointed them expressly to exercise consular functions, with
a prohibition against carrying on commerce or business.
522. Consular envoys, whether consuls general or vice-consuls,
whenever they are accepted and recognized as such under the rules
and formalities in use in the country where they are to exercise
their functions, are not personally responsible for acts they per-
form as official representatives of their government, within the
scope of their authority under official instructions and of their
character as public officers.
As regards acts performed in their official capacity and within
the scope of their authority, they engage the responsibility of
the state which has appointed them.
Compare, with regard to the submission of consuls to the local jurisdiction,
rules 347–350, and as regards the civil or international responsibility of the
foreign state, rules 595 et seq., 603 et seq.
CONSULS
257
623. Consuls must be fully protected in the exercise of their
functions; they cannot be arrested or detained except for offenses
involving severe punishment. They cannot be compelled to
appear as witnesses before the local courts, nor to appear per-
sonally for examination in a criminal case; but their depositions
must be taken in writing, or verbally at their residence.
524. In every instance, the local authorities must proceed with
a foreign consul with all the respect due him by virtue of his public
character. When it is necessary to prosecute him for serious
offenses, they must advise the government of his country and, if
possible, delay the. proceedings until it has taken appropriate
measures, either by revoking his instructions or otherwise.
The purpose of these rules is to protect the exercise of consular functions, and
to prevent the possible injury which might arise if consuls were prevented or
retarded in the exercise of their duties. In most consular conventions, it is
recognized, in principle, that consular envoys cannot be arrested except in case
of offenses considered as crimes and punished as such by the courts of the state
where they reside. See the consular convention between Italy and the United
States of February 8, 1868, arts. 3 and 4; with Austria-Hungary, of May 15,
1874, arts. 4 and 5; between the United States and Belgium, of December 5,
1868; between Italy and France, of July 26, 1862, arts. 2 and 3.
525. In all cases where the consul must appear in person before
the local courts, he cannot refuse, but the local authorities must
invite him to appear with all possible respect for his position and
the official duties committed to his charge.
526. Consuls have the right to be exempted from municipal or
state burdens or charges imposed on citizens and resident for-
eigners. They are not subject, therefore, to military billetting,
to service in the militia, or to any public service of a municipal
character. They are also exempt from the obligation to pay
military taxes and direct personal or sumptuary taxes imposed by
the state, province or town, unless they own real property or en-
gage in business.
527. Consuls may place on the outer door of their offices or
residence, the arms of their state with the inscription, consulate.
They may also hoist their national flag on their residence or
offices, when they do not reside in the capital of the country where
the legation of their country is located.
For the inviolability of consular officers, see rules 378-381.
258
INTERNATIONAL LAW CODIFIED
CONSULAR AGENTS
528. Consular agents, whether they are citizens of the state
which appointed them, or of the state where they exercise their
functions, do not enjoy the same rights as consuls of the first class.
Nevertheless, for acts performed in the exercise of their func-
tions, by virtue of their commission and within the scope of their
special authority, they are not personally responsible.
529. Consular agents may place on the outer door of their resi-
dence or offices, the arms of the foreign state for which they act,
with the inscription, consular agency.
Under the Italian law, the personnel of consulates is divided into two classes,
those who cannot engage in business and must be Italian citizens, and those
who may engage in business and may be foreigners. The latter are called vice-
consuls or consular agents.
TITLE XVI
OF THE PROTECTION OF CITIZENS ABROAD
PROTECTION AS A RIGHT OF SOVEREIGNTY
530. Every state has the right to protect and defend its citizens
residing abroad by all the means considered lawful in international
law. It must oppose all arbitrary acts committed against them,
and in case of an infringement upon their rights, must support
them in legal actions brought to obtain satisfaction for unjust in-
jury, and demand, according to circumstances, appropriate guar-
anties to prevent the recurrence of similar acts.
531. The right of protection of citizens abroad must be exer-
cised particularly by the sovereign of the state and by the diplo-
matic agents vested with its legal representation. It may also be
exercised by consuls in the countries where they are established
and within the limits fixed by the consular convention, which
determines the attributes of consuls in the respective countries.
The purpose of the foregoing rules is to lay down the principle of the legal
protection of the rights of man in the international society. Even in the sup-
position that these rights would not be recognized by treaties, they ought
nevertheless to be always under the protection of the sovereign of the state of
which the individual is a citizen. Such sovereign has not only the right, but
the duty, to protect citizens resident abroad and to demand for them the appli-
cation of the laws which must insure the protection of the human person and
his rights. Usually, the reciprocal obligation to respect the rights of humanity
-established infra in title XXII—is recognized, by way of reciprocity, in
treaties. Nevertheless, it cannot be claimed that such obligation does not
exist in the absence of a treaty, and that the national state of the alien may
not come to his defense when his personal rights are infringed.
PROTECTION AS A RIGHT OF THE CITIZEN
632. The right of citizens to claim the diplomatic protection of
the country to which they belong, must be considered as hav-
ing for its basis the relation resulting from citizenship. Conse-
quently, the proof of citizenship must be considered a prerequisite
259
260
INTERNATIONAL LAW CODIFIED
for the legitimate exercise of diplomatic action and of the right
and duty of protection incumbent on the sovereign towards the
citizen.
533. Any question concerning the citizenship of the individual
who claims the protection of the state, must be decided according
to the law of the country to which said individual claims to belong.
The diplomatic action of the government of each state can be
recognized as legitimate only when such individual has not, under
the law of his native country, lost the citizenship of that country.
534. When the citizenship of the individual who seeks protec-
tion is a matter of doubt, and especially when he has left his native
country without any intention of returning, the result being that
he has in fact broken the ties which bound him to his country, it
must be considered as contrary to political expediency and equity
(even though not opposed to strict right) to set in motion the
state's diplomatic machinery for the advantage of a person who,
having renounced his native country, seeks afterwards to avail
himself of its political forces to defend his interests.
It cannot be considered wise policy to place the state's diplomacy at the
service of individuals who unquestionably cannot be regarded as citizens of the
state whose protection they request.
WHEN PROTECTION MAY BE LEGITIMATE
535. The protection of citizens must be considered legitimate
whenever, according to the principles of “common” law, the in-
ternational responsibility of the state against which diplomatic
action is being exercised must be considered as well-founded.
536. International responsibility may, in principle, arise from
unlawful acts of the government or of public officers, which acts
constitute a violation of the rights of person or property of citizens
of the state which exercises the diplomatic action.
This rule may be applied to damages caused to foreigners during revolutions
and civil wars, which frequently disturb the American republics, and during
which the rules of international law are not always observed.
537. The international responsibility which may justify diplo-
matic action may also arise from contractual engagements under-
taken by the state with private individuals, when, under the
circumstances, the non-performance of the contract can be consid-
OF THE PROTECTION OF CITIZENS ABROAD
261
ered a result of bad faith of the government, which has misused
its power to violate the legitimate rights of private individuals,
refuses them the legal protection to which they are entitled and
commits to their detriment a veritable denial of justice.
538. Although in a treaty concluded between the state which
exercises the diplomatic action and the state against which the
action is directed, there may have been an express stipulation of
a reciprocal obligation to refrain from any interference in all mat-
ters relating to the administration of justice, such an engagement
cannot limit diplomatic action in case of denial of justice, as that
fact must be considered a manifest violation of the principles of
international law.
These rules may be applied in case of the protection of citizens, creditors of a
foreign state. While in principle the claims of those creditors cannot justify
diplomatic action, when they have at their disposal means of judicial recourse
to protect their rights and interests, yet when the government of the debtor
state acts in bad faith to obstruct the ordinary course of justice and thus
infringes directly upon the intangible rights of the individual, diplomatic pro-
tection may then be considered legitimate.
INDIVIDUALS MAY NOT LIMIT THE RIGHT OF THE STATE
539. When individuals, in contracts concluded with a foreign
government, have expressly renounced the right of protection on
the part of their own government such stipulation cannot have
legal force to prevent the diplomatic action of their national
government, when lawfully exercised.
Protection must not be considered as an enforcible right of a private individ-
ual, but as a public right and duty of the state in its relations with foreign
states. It must be admitted that protection has as its basis the relations ex-
isting between the sovereign of the state and the collectivity, to which belong
the citizens in whose favor diplomatic action is exercised. The sovereign, as the
supreme organ of right, must legally protect the rights of the individual mem-
bers of the collectivity, in so far as those rights are exercised within the do-
main of international relations.
RATIONAL LIMIT OF PROTECTION
540. It is incumbent upon prudent and enlightened governments
carefully to examine and weigh all the circumstances in order to
determine whether diplomatic action should be exercised.
Even admitting the widest discretion and freedom of judgment on the part
of the government in its decision as to the grant or refusal of diplomatic pro-
262
INTERNATIONAL LAW CODIFIED -
tection on behalf of citizens who allege injury by foreign governments, we are
of the opinion that interfering in the financial or judicial administration of a
foreign state must always be considered as a grave and delicate matter. It
often happens that contractors and speculators take advantage of the circum-
stances in which the American republics are placed (especially during their
internal strifes) to use their money in more or less successful operations, and
then invoke the diplomatic protection of their government in order to realize
the exaggerated profits they wished to obtain. Without entering into details,
we shall merely say that the main question which any prudent government
must seriously examine is whether the claims are or are not justified, taking
into account the good or bad faith of the government against which they are
directed. It cannot be admitted in principle that those who risk their money
by entering into more or less speculative contracts should not run the risks
of their undertaking.
541. Governments must not exaggerate diplomatic action by
diverting it from its true purpose, so as to make of a question of
private law a matter of international interest, unless, owing to
peculiar circumstances, the dignity of the state is involved.
It must always be considered contrary to a wise and prudent policy to make
the case of a private individual the case of the government. Compare: Philli-
more, pt. V, chap. II, v. 2; and Heffter, Droit international, § 58.
542. Protection designed to secure for citizens residing abroad
a privileged position must be considered unlawful and unjusti-
fiable:
a. When it is exercised with a view to substitute diplomatic
action for the action of the territorial sovereign;
b. When it is so exaggerated as to be equivalent to a pressure
by a powerful state upon a weak state to procure for its citi-
zens unjustified advantages or exemption from obligations
arising under territorial law.
These rules tend to exclude undue protection on the part of powerful gov-
ernments, which have sometimes demanded from weaker governments that
their citizens, established in foreign countries to engage in business, should not
be subject to local laws, or should obtain through administrative channels the
protection of their rights, notwithstanding the existence of judicial means by
which such protection might have been obtained.
Among the different cases of undue protection, see the case of. MacDonald
mentioned by Calvo, Droit international, 4th ed., § 1279. Compare: Fiore,
Diritto internazionale pubblico, 4th ed., v. I, pp. 412 et seq.
PROTECTION OF NATURALIZED PERSONS
543. The right of protection appertaining to the sovereignty of
each state may be exercised even with respect to naturalized per-
OF THE PROTECTION OF CITIZENS ABROAD
263
sons, provided that they are not protected against the state of
which they were citizens originally, for the purpose of exempting
them from the performance of duties and obligations which subsist
notwithstanding the change of nationality.
This rule tends to exclude the protection of a naturalized person against his
native country, in cases where he is called to perform certain duties which he
has failed to fulfill before emigrating, for instance, that of military service.
In the case of Meyer, a Prussian citizen naturalized in the United States who,
having returned to Prussia was compelled to perform his military service, the
just principles governing the situation may be found in the note of Baron
Manteuffel to Mr. Fay, United States Minister, dated October 2, 1852:
“When any individual obtains naturalization in a foreign country, the
gov-
ernment of his native country can never acknowledge that this fact, of itself,
releases him from the obligations which were imposed upon him in his for-
mer country before his naturalization. I will add, that in cases like this, in
which the said Meyer finds himself, it is much less a question of retaking any
individual to enroll him in the army, than to maintain the respect due to the
law, and to insure its execution. And if the government of his Majesty pro-
poses to execute the law against a Prussian subject on Prussian territory, I
desire to persuade myself that the government of the United States has too
much respect for its own dignity to be willing to oppose itself thereto.” (36th
Congress, 1st session, Senate Ex. Doc. No. 38, 1860.)
544. The right of protection may be exercised by a state with
respect to individuals who, though not its citizens, happen to be
its protégés.
Among these we may consider not all the persons who ask and
obtain the protection of the diplomatic agents of a given state, but
those who, by virtue of treaties concluded with Oriental states and
uncivilized states, may lawfully claim the condition of protégés,
and who in fact must be considered as assimilated to the citizens
of the protecting state.
This rule applies to individuals in the service of ambassadors and consuls in
Oriental countries and in uncivilized states, who, under the treaties, have in
fact the same legal status as citizens, as long as they exercise their functions
as employees. Compare the treaty of July 3, 1880, concluded by Italy and
other states with Morocco (Martens, N. R. G., 2d série, v. VI, p. 624), in which
the condition of protégés is regulated. See also Oppenheim, International law,
v. I, § 295.
TITLE XVII
INTERNATIONAL DUTIES OF THE STATE
GENERAL PRINCIPLES
545. Each state is bound to respect the international rights of
the other members of the international society and to exercise all
its functions, activities and rights in such a way as not to in-
fringe upon the rights of others.
The purpose of this rule is to formulate the general principle of equilibrium
and of legal organization, which can be maintained only on condition that a
state does not encroach upon the domain of others and that each one renders
to others their due. The existence in common of persons who have identical
rights cannot be conceived without presupposing the constant observance of
a certain law of proportion as to their actions and forbearance of action. Other-
wise, their coexistence would be impossible. The rights of states set forth in
the foregoing titles have as a necessary complement duties which each is
bound to observe.
546. Moreover, it is incumbent upon states and on the govern-
ments which represent them to recognize the authority of moral
law and natural justice and not to violate their precepts either in
war or in peace.
Moral law, which should regulate all the relations of reasonable beings, must
apply to all the relations arising among civilized peoples who constitute the
international society. The observance of the principles which that law im-
poses characterizes civilization and gives rise to all the duties known as duties
of humanity.
547. The principal international duties of states are:
a. The duty of non-intervention;
6. The duty of collective intervention;
c. The international duty of mutual assistance;
d. The duty of international responsibility;
e. The duties of humanity.
In addition, states have the general duty of performing honestly
and in good faith the obligations contracted by virtue of treaties,
or express or tacit agreements, or which arise out of any acts they
may have undertaken in international society.
264
TITLE XVIII
DUTIES OF NON-INTERVENTION
INTERVENTION MUST BE DEEMED ABSOLUTELY UNLAWFUL
548. Each state is bound not to interfere in the affairs of other
states, with a view to obstructing or preventing the free and inde-
pendent exercise of their rights of sovereignty and the free develop-
ment of all the functions and legitimate activities of government.
549. Intervention must be considered absolutely unlawful.
Interference in internal and external affairs effected by moral
force constitutes moral intervention; that effected by armed force
constitutes armed intervention. Both must be deemed absolutely
unlawful and considered as a violation of international law,
550. It must be deemed as absolutely prohibited:
a. To intervene in a struggle between a sovereign and people
who desire to modify the political constitution of the state
or the form of government;
b. To hinder the free development of the constituted govern-
ment and of public administration;
c. To interfere with the exercise of the powers of the state by
hindering in any way whatever the right of each state to
enact its laws with entire independence; nor should it
violate international law, either by restricting the inde-
pendence of the judiciary, or by seeking to influence ap-
pointments to public office or the development of sovereign
functions, etc.
d. To indulge in any direct or indirect attack against the auton-
omy and independence of the state.
The duty of non-intervention, in any question concerning the political con-
stitution of the state and the free exercise of any sovereign function and power
within and without the state, is the indispensable condition of the real and
effective autonomy and independence of the state. Every right is correlative
to a duty and it is clear that the rights of sovereignty which have been men-
tioned in the foregoing titles imply the correlative duty of respecting law and
265
266
INTERNATIONAL LAW CODIFIED
1
refraining from any interference on the part of other states. This duty has
been more generally recognized in the second half of the 19th century. Since
the treaty of Vienna of 1815, which laid down as the basis of the new organiza-
tion of Europe the maintenance and defense of the territorial possessions of
the reigning dynasties and of the rights accorded to each of them under that
treaty, armed intervention was justified by the pretended necessity of main-
taining the organization of Europe as it was established and of maintaining
the balance of power. See the history of the armed interventions to arrest
the liberal movement in Spain, at Naples, in Portugal and elsewhere, in Calvo,
Droit international, v. I, $$ 168 et seq.
551. The immediate injury and the detriment to national inter-
ests and prospects, which may indirectly result from a revolution
within a foreign state and from civil war, do not justify armed
intervention.
There is a tendency at the present time to give to international society the
legal organization that it needs and to establish the dominance of law and
justice. It may happen that acts occurring within a state may be detrimental
to the interests of a foreign state; but it should not be admitted that the state
which claims to have been injured thereby may become in fact judge and
party at the same time and render justice to itself by its own intervention.
The observance of the procedure provided for by international law for the
protection and safeguarding of reciprocal interests must be considered indis-
pensable among states existing in common in the Magna civitas for the main-
tenance of the supremacy of law.
552. When revolution and civil war in a state result in real and
actual injury to the rights of another state, the latter may defend
itself by all the means permitted by international law.
To protect one's own right is not committing an injustice against others.
It should be considered unlawful to meddle in the internal political affairs of a
foreign country, and to use moral or material force to make one's will or de-
signs prevail. If, however, a revolutionary party, in order to gain adherents,
seeks to overturn the political institutions of a neighboring country, the right
of every state to assure its own defense by every available means would justify
resistance and action, as the case may be. It could also employ armed force
to repel unjust invasion, and to combat the direct action of the revolutionary
party. This would not in reality be intervention, but an act of legitimate
defense, which might sometimes give rise to a casus belli.
INTERVENTION CANNOT BE JUSTIFIED BY A TREATY
553. Intervention in internal affairs to assist a foreign govern-
ment in case of civil war cannot be considered lawful, even though
it might occur under the terms of a treaty and with the formal
consent of the erstwhile constituent government; indeed, it should
always be considered as a palpable violation of the international
rights of the people.
DUTY OF NON-INTERVENTION
267
Compare rules 89 et seq. (By article 3 of the treaty of May 22, 1903, be-
tween the United States and Cuba (Malloy, Treaties, p. 362) it was agreed
“that the United States may exercise the right to intervene for the preserva-
tion of Cuban independence, the maintenance of a government adequate for
the protection of life, property, and individual liberty," etc.-Transl.]
554. Intervention by a state by means of its moral and armed
force to maintain the political organization of another state cannot
be justified on the ground that it is done under the express stipu-
lation of a previous treaty concluded between the governments
reciprocally to guarantee their territorial possessions, or the pre-
tended rights of reigning dynasties.
This rule is based on the principle that the right to provide for the internal
organization of the state and for its political constitution vests originally and
wholly in the people, and that sovereigns cannot, through the stipulations of
treaties, deprive the people of the complete right to govern themselves and
administer their affairs with the fullest independence. The pretended rights
of reigning dynasties founded upon historical right and other titles cannot
ever weaken the international rights of peoples and nations and therefore
cannot legitimate the use of armed force and the assistance of foreign states
through intervention. This rule does not bar a defensive alliance between two
nations, which may legitimate armed assistance when the casus foederis is
applicable to the defense of the rights of the state or of its people, but not
those of the government or dynasties against the people.
INTERVENTION IN FAVOR OF THE POPE
555. The absolute duty of non-intervention in the internal
affairs of a state cannot suffer any modification on the ground that
its object is to safeguard the pretended rights of the Papacy and
its aspirations toward temporal power.
One of the most specious sophisms of the Papacy and of its partisans, is the
pretended necessity of temporal power and political sovereignty on the part of
the Pope to insure to him the most complete independence in his functions
as head of the church. It was through this fallacy that they sought to justify,
at Rome, the intervention of France, which maintained its troops there until
1870, on the pretext of protecting the interests of the Catholic Church and of
its head. Rules 74 and 75 and those we shall set forth hereafter to establish
the exercise of the rights of the Church, exclude the necessity of political and
temporal sovereignty on the part of the Pope. Certain attempts have been
made, especially by Catholic bishops, to urge governments to intervene at
Rome, in order to restore the temporal sovereignty of the Pope; but from this
time on, it may be considered as established that intervention for such purpose
is contrary to the principles of modern international law.
The legal safeguard of the international rights of the Church, as they are set
out in rule 73, may be the object of collective legal protection, in conformity
with the principles embodied in rules 49, 50 and following and of the other
rules concerning collective interference which are set forth in the following title,
but it could never legitimate intervention as the individual action of a state,
TITLE XIX
DUTIES OF COLLECTIVE INTERVENTION
WHEN IS INTERVENTION REQUIRED
)
556. Collective intervention must be considered obligatory when
its object is to protect the rights of the persons and legal entities
who are members of the international society, and whose rights
have been determined in titles I and II preceding.
Compare rules 62, 67, 73, 79, 89, 92, 97.
In order fully to understand the foregoing rule, we must bear in mind that
collective intervention may be justified by the idea of asserting the supremacy
of law. Its ultimate purpose should be the realization of the words of Mira-
beau: “Law will some day be the sovereign of the world.” Hence any arbi-
trary violation of the rights of persons (state, men, people, nations or churches),
can never be justified by virtue of the European concert.
We reprint what we said at page 249 of the third edition of the present work
in reference to the question of Crete:
"In the question of Crete or Candia, which is being discussed at the present
time, we cannot deny that the intervention of the great powers is required as
an international duty to proceed by common agreement to the solution of the
Eastern question. We are even convinced that the most urgent duty would be
not to delay its solution in conformity with the most just principles of modern
international law. Nevertheless, the European nations have sought to con-
form to the political views of the most powerful governments, which desire to
secure the integrity of the Ottoman Empire, principally because they are not
all in accord as to the regulation of the new order of things which would result
from the emancipation of the Christian provinces subject, by historical right,
to the authority of a Mussulman ruler, and because they fear the danger of a
European war if the integrity of Turkey were disturbed.
“The bombardment of Candia and the threat of blockade of the Piræus to
compel the universal acceptance of the law made by the European concert, to
respect the integrity of the Ottoman Empire and to subordinate the just aspira-
tions of the Cretes or Candians to this supreme necessity, is not at all in keep-
ing with the principle formulated in our rule. Coercive measures would have
been more justified if they had compelled everyone, including Greece, not to
oppose the right of the Cretes to adopt the political constitution most con-
formable with their national aspirations with complete autonomy and inde-
pendence. The time, on the other hand, has not yet come to give to collective
intervention-which in principle must be admitted to be just and legitimate-
rational rules determining its exercise and development. It will be necessary
to wait until public opinion, which in that case displayed its power and force,
acquires a greater influence in the direction of international politics.”
1
268
DUTIES OF COLLECTIVE INTERVENTION
269
!
557. Collective intervention must be considered as a form of
protection of international law, and must be deemed legitimate
only when its object is to protect or restore the authority of "com-
mon" law violated by one or more states.
Compare rule 49.
To determine clearly the conception of collective intervention and its legit-
imacy, it must be remembered that its main object is the legal protection
of international law. We cannot admit, in principle, that all that the great
powers have established by common accord may be justified by virtue of the
so-called European or American concert. To admit this, would, under another
form, restore the preponderance of the pentarchy, which was the consequence
of the concert established by the great powers at the Congress of Vienna in
1815. In that Congress it was thought that, in order to maintain the so-called
balance of power and secure peace, it was indispensable to preserve territorial
possessions under the rule of the reigning dynasties, to which they had been
assigned even by resorting to coercive measures. Thus originated the erro-
neous conception that everything could be justified by agreement of sovereigns
and they sought in this manner to justify the armed interventions planned at
Laybach in 1821 and at Verona in 1822 to repress the liberal movements in
the Kingdom of Naples, in Piedmont and in Spain.
If everything could be justified under the so-called European concert, by
reason of the accord of the great powers, it would result in strengthening the
autocracy of politics and justifying recourse to arms to maintain it. There
would thus ensue a return in another form of conditions similar to those which
arose from the erroneous conception of the legitimacy of constituted powers as
conceived by Metternich and the disregard of the sacred and inviolable rights
of peoples.
In his note of May 12, 1821, Metternich, to justify the concert of the great
powers as to armed intervention, wrote as follows at Laybach:
“The useful or necessary changes in legislation and in the administration of
states can only emanate from the free will and the deliberate and clear judg-
ment of those whom God has made responsible for the power. Everything
which departs from this principle, necessarily leads to disorder, to disturbances,
and to evils more unbearable than those it is sought to remedy. Convinced of
this eternal truth, the sovereigns have not hesitated frankly and vigorously
to proclaim it. They have declared, that in respecting the rights and inde-
pendence of all legitimate power, they regarded as legally null and in conflict
with the principles constituting the public law of Europe, every alleged reform
brought about by revolt and open force. They have acted upon this declara-
tion in the events which occurred at Naples and in Piedmont."
Our conception of collective intervention must not be confused with that
which inspired the so-called European concert, whose traces are still visible in
contemporary political history.
558. Collective intervention may also be considered obligatory
when its purpose is to put an end to conditions of anarchy which
might continue for a long time and prove highly detrimental to
international trade, industry and general interests.
The revolution which broke out in June, 1875, in Bosnia and Herzegovina
and lasted so long that it endangered general peace, brought about the inter-
270
INTERNATIONAL LAW CODIFIED
vention of Germany, Austria-Hungary, Russia, France and Italy, who offered
their mediation, so as to facilitate the pacification of the provinces subject to
Turkey. Great Britain refused to join it, because, as Lord Derby wrote in his
note of August 24 of that year, the British government believed that inter-
ference would encourage the insurrection and would assume the character of an
intervention in the internal affairs of Turkey. This is not the place to discuss
the political views of governments in this respect; we merely wish to say, that
if in such cases, collective intervention is not considered obligatory, it must be
deemed permissible and justifiable. The main point in this matter is that
states agree upon the need and expediency of such a measure, or, in other
words, that a considerable number of states, representing the majority, recog-
nize that interference is justified by the circumstances.
Thus, by excluding, in so delicate a matter, the predominance of individual
judgment and by recognizing the necessity of the agreement, not of several,
but of the majority of states, the danger that our rule, as formulated, may lead
to arbitrariness is dispelled.
The arguments set forth in the note of December 30, 1875, to justify collec-
tive intervention as regards Bosnia and Herzegovina, seem to us to justify
the measure: “The state of anarchy," the note reads, "which prevails in the
North-East provinces of Turkey, does not merely imply difficulties for the
Porte. It also involves grave danger to the general peace, and the various
states of Europe cannot with indifference observe the perpetuation and aggra-
vation of a situation which now weighs heavily upon commerce and industry
and which, as it daily continues to shake the public confidence in the mainte-
nance of peace, tends to compromise the interests of all.”
WHEN COLLECTIVE INTERVENTION MAY BE JUSTIFIABLE
559. Collective intervention is justifiable:
a. When its object is to prevent or to put an end to a state of
affairs contrary to law: such as the incorporation of a terri-
tory by conquest, the execution of a treaty imposed by
violence on the vanquished by the victor and any acts which
must be deemed unjust and illegitimate under “common"
law;
6. When it seeks to repress the violation of an order of things
previously established by a general treaty, a violation
arbitrarily committed by one of the contracting parties to
the detriment of the other parties;
c. When one of the parties fails to carry out the particular
stipulations of a general treaty, thus violating the right of
those for whose benefit the stipulations were made, provided
the wrongdoing party acts arbitrarily and in bad faith.
The second part of the rule would find its application in case one of the
powers which subscribed to the treaty of Paris of 1856, or the treaty of Brussels
of July 2, 1890, for the repression of the slave trade, were to fail to observe the
DUTIES OF COLLECTIVE INTERVENTION
271
rules laid down in these conventions with respect to maritime war or the re-
pression of the traffic in slaves. Such would be the case of a state which, in
the event of war with another state, failed to respect the rule relating to real
and effective blockade, or which would not honestly fulfill its obligations con-
cerning the repression of the slave trade. In such case, it would be fair to
maintain that the state which violated, to the prejudice of another state, the
rules agreed upon in a general treaty would not merely violate the right of that
state but of other powers as well, since all the states are jointly and severally
interested in seeing that the rules established among them by common consent
are respected.
The other part of the rule would find its application in the case of Turkey
not observing the stipulations according to which, under article 61 of the
treaty of Berlin of July 13, 1878, it has assumed "to effect without delay the
improvements and reforms required according to local needs in the provinces
inhabited by the Armenians and to guarantee their security against the Kurds
and Circassians.” Collective intervention would be justified, not only by
reason of the general principles according to which the respect of the law es-
tablished by common accord among states must be recognized, but also by
reason of the particular fact that Turkey failed, as it was bound to do, to report
to the other signatory powers of the treaty the nature of the measures adopted,
so as to make it possible for them to supervise the execution of its stipulations.
WHEN COLLECTIVE INTERVENTION MAY BE UNJUSTIFIABLE
560. Collective intervention in the public administration and
exercise of the sovereign powers of a foreign state may be con-
sidered a violation of the rights of autonomy and independence
of that state, and therefore illegitimate, whenever it is not based
upon protection of national interests.
Therefore, if a government takes undue advantage of its position
in its relations with private individuals, violates its duly contracted
obligations, declines to heed the just claims of foreigners, or exer-
cises its sovereign powers contrary to the principles of justice and
in creating a state of affairs essentially abnormal,-collective
intervention to repress open violence and prevent violation of
the absolute principles of justice may be considered lawful and
justifiable.
One is bound to admit that a moral law exists between states and that they
are bound by a natural and reciprocal obligation to maintain intact the
fundamental principles of “common” law. If it could ever be maintained that
a state may with impunity violate those principles and that the other states
would be bound to remain indifferent, it would be impossible for international
society to exist. Therefore, a collective remonstrance can always be justified
as a protection of law against arbitrary and persistent infringement. Compare
rule 537.
272
INTERNATIONAL LAW CODIFIED
INTERVENTION IN THE RELATIONS BETWEEN THE CHURCH AND THE
STATE
561. Collective intervention on the part of Catholic or non-
Catholic states may be legitimately exercised to protect the in-
ternational rights of the Church or to insure the performance of
its international duties.
It should be considered, however, as inherent in the autonomy of
each state to regulate its relations with the Roman Catholic Church,
in so far as such relations are within the sphere of operation of pub-
lic municipal law, and to provide, in accordance with municipal
laws, for safeguarding the dignity of the head of the Church.
The purpose of the first part of this rule is the legal protection of the rights of
the Roman Catholic Church which, as an international institution, must be con-
sidered as a person of the Magna civitas (compare rules 70 and 71.) Its rights
(compare rule 73) must be deemed under the collective guaranty of all states,
which have the right to safeguard the interests of Catholic citizens and their
religious liberty.
The purpose of the second part of the rule, on the contrary, is to safeguard
the autonomy of the state as regards its powers over persons, over the collec-
tivity and any association belonging to such collectivity,-an autonomy which
cannot be limited with respect to the churches existing in the state (not ex-
cluding the Roman Catholic Church) in so far as, in the exercise of their func-
tions and worship, they are in the juridical circle within which the rights of the
state must be exercised with full independence.
If the rights of these two institutions—the state and the church-each one
of which has its raison d'être, its own rules of operation, and an essentially
distinct purpose, could be determined and fixed by a solemn declaration made
in a congress, the conflicts between the two powers could be more easily ad-
justed. Under the present conditions, it may well happen that one of the
institutions insists that the other has encroached upon its rights. In order to
avoid a conflict, such an occurrence would give occasion to resort to all
peaceful means, that is to say, to good offices, mediation, and finally, to collec-
tive intervention and arbitration.
GENERAL PRINCIPLE
562. The rules relating to collective intervention apply to all the
states that are in the de facto society and must be considered as
jointly and severally interested in maintaining intact the respect
of international law and in restoring its authority in case of arbi-
trary violation.
Compare rules 43 et seq.; 49 et seq.; 245.
TITLE XX
DUTY OF MUTUAL ASSISTANCE
GENERAL PRINCIPLES
563. Civilized states must consider themselves bound, inde-
pendently of treaties, to do what the exigencies of common life
may require. They must consider themselves reciprocally bound
to afford mutual assistance and not to oppose in any way whatever
acts may help to promote their reciprocal advantages and safeguard
their respective interests.
564. Duties of mutual assistance and those arising from the
foregoing rule cannot be considered as legal duties but as obliga-
tions based on moral law and on the comitas gentium; they must
be applied not only among civilized states, but also govern relations
with states which are in an inferior condition, from the point of
view of culture and civilization.
Compare rules 17, 19 et seq., and 31.
565. Assistance must be considered especially obligatory:
a. With respect to ships seeking shelter because of the neces-
sities or dangers of navigation;
b. With respect to vessels which have suffered a disaster at sea
or are shipwrecked;
c. With respect to the acts necessary for the administration of
justice or the trial of lawsuits.
ASSISTANCE TO FOREIGN SHIPS SEEKING SHELTER
566. Each state, independently of treaties, must receive foreign
ships in its ports, whether they are war vessels or merchantmen,
when they are compelled to enter, either by reason of the danger-
ous condition of the sea, or to repair damages suffered during the
voyage, or to procure what they may need to proceed on their way.
567. Foreign ships compelled by reason of force majeure to enter
273
274
INTERNATIONAL LAW CODIFIED
the territorial waters of a state must be protected and be exempted
from the ordinary laws applicable to ships entering for commercial
purposes.
568. Any ship which, compelled by a disaster at sea, wishes to
enter the ports of a foreign state, whether closed or open to trade,
and to land in roadsteads, bays, or on beaches must display the
customary signals to indicate the forced nature of the landing,
and may require that the local authorities shall not only not pre-
vent her from landing, but give her all necessary assistance to make
repairs, take in provisions and proceed on her way.
569. No civilized state should consider as a commercial act the
unloading and reloading of merchandise by a foreign ship which
was obliged by force majeure to enter; nor can it subject to “com-
mon” law the operations of revictualling and selling of damaged
goods, the reshipment of merchandise on another ship by one
which, through damage at sea, has become unseaworthy. Such
operations, however, must have been recognized as necessary and
duly authorized by the customs authorities.
The rules applicable to foreign ships which by force of circumstances enter
territorial waters, are ordinarily stipulated in treaties of commerce. When
there is no treaty, every question must be settled by administrative regulations
in conformity with the principles of equity. A foreign ship which is forced to
put into port cannot be exempt from the payment of compensation due under
the regulations to private individuals who have lent their assistance, for ex-
ample, the local pilots who steered her in. But one should always consider it
contrary to the principles of international law and to the moral duty of mutual
assistance to regard as commercial transactions' those which a ship is com-
pelled to undertake in order to make herself seaworthy.
570. It is incumbent on foreign ships which enter by force ma-
jeure to conform to the instructions given by the local authorities
according to the requirements of the case. It is incumbent, more-
over, on the local authorities not to subject these ships to condi-
tions which might be considered excessive and inconsistent with
the international duty of mutual assistance.
ASSISTANCE IN CASE OF MARITIME DISASTER OR SHIPWRECK
571. Every state is bound to organize the maritime services
required to assist foreign ships, in danger within territorial waters
or along the coasts of the country, and to do all it can to prevent
shipwrecks and all other maritime disasters.
DUTY OF MUTUAL ASSISTANCE
275
572. In case of shipwreck or any other disaster, it is the duty of
the state which has jurisdiction over the territorial waters to pro-
vide aid for the ship and endeavor to rescue property and preserve
it for its owners.
573. The operations incidental to salvage must, in principle, be
undertaken by the consul of the state to which the ship belongs,
and it is the duty of local authorities to lend him assistance. In
the absence of the consul, the maritime authorities of the port and
the civil authorities of the coast where the disaster occurred must
be considered as bound to undertake salvage and to recover the
wreckage.
The obligation to help ships in danger is a duty of humanity. Certain states
have in their laws made it a legal obligation. Italy, for example, in the Mer-
chant Marine Code, provides as follows in article 120: “The captain of a na-
tional vessel, meeting any ship, even foreign or enemy, in danger of being
wrecked, must hasten to her assistance and help her in every possible way.
Article 385 of the same Code punishes the captain or master of a national vessel
by a fine from 200 to 1000 lire, and by suspension from his position from six
months to a year, if he negligently fails to assist a ship in danger.
574. The state must refrain from exercising any royal or fiscal
right to wreckage or to the ship wrecked in territorial waters, and
also from the right to appropriate articles cast up by the sea in
consequence of a shipwreck or a disaster on the high sea.
575. The organization of the salvage service must be considered
as within the duty of international assistance. Accordingly, each
government must defray the expenses required for such service,
and cannot ask reimbursement from the foreign state whose
merchant vessel was wrecked. It may only request the repay-
ment of the actual expenses incurred in order to rescue the ship
and the property wrecked.
RULES RELATING TO SALVAGE AND PROPERTY SALVAGED
576. It is incumbent on each state to provide by legislation
that all local authorities and especially maritime authorities shall
give assistance to the wrecked, shall undertake salvage and pro-
tect the rights of shipowners and of property belonging to the
shipwreck.
577. The appropriation of articles proceeding from a wreck or
any other maritime disaster should be prohibited.
It should be considered unlawful on the part of salvors to make
276
INTERNATIONAL LAW CODIFIED
exaggerated salvage claims. It is the duty of the local authorities
to see that all salvors obtain a reward commensurate with the
service rendered; including the promptness of the rescue or sal-
vage, the danger incurred, and the value of the property saved.
578. All property saved from a shipwreck must be kept in a safe
place, at the disposition of its owners, under the care of the local
authorities, who must give public notice of the salvage and invite
the interested parties to prove their claims to the property saved.
579. The local authorities may order the sale of perishable
merchandise or of goods whose preservation would cause excessive
expense, and hold the proceeds at the disposal of the owners.
Moreover, they may order the sale of property saved whenever
such course is necessary to pay salvage expenses and the expenses
of feeding the shipwrecked persons and sending them back to their
own country.
580. The state may appropriate property saved or the price of
property sold, only when, after a reasonable time following public
notice to the interested parties to present claims, none shall have
appeared, and the property saved may, therefore, be presumed to
be without an owner.
581. A ship submerged in territorial waters without leaving any
apparent trace, shall be considered abandoned by her owners, or
by those interested in her and her cargo, when, notwithstanding
public notice, no one has appeared to undertake salvage operations
within a reasonable time indicated in the notice (3 months) or
when the interested parties, having commenced salvage, have
abandoned it for a reasonable time (4 months) so as to permit the
presumption that they intend to abandon the ship and cargo.
The property may then be turned over to the Treasury or to the
actual salvors.
These rules are for the most part in accordance with those adopted by Italy
(chap. XII, title II of the Codice per la marina mercantile).
The statutes of the Italian maritime cities sanctioned the most liberal prin-
ciples with respect to assistance in case of disaster or shipwreck. (See the
Statute of Pisa of 1160, Constituta usus, Pardessus, Lois maritimes, v. 4, 583;
Statute of Rimini of 1303, Pardessus, id., v. 5, p. 113.)
ASSISTANCE TO SHIPWRECKED SAILORS
582. It is the duty of every civilized state to assist foreign
sailors who, owing to shipwreck or other maritime disaster, are
DUTY OF MUTUAL ASSISTANCE
277
without means and (in the absence of a consul of the state whose
flag the ship flies) to provide for them until they can find employ-
ment or return home.
The state may, however, demand reimbursement for expenses
incurred for the maintenance and return to their own country of
foreign shipwrecked sailors, unless otherwise provided by treaty.
ASSISTANCE TO FACILITATE THE ADMINISTRATION
OF JUSTICE
COMMISSIONS ROGATORY
583. It must be considered an international duty of mutual
assistance on the part of states, independently of treaties, recip-
rocally to co-operate in every possible way in the administration
of justice in civil and criminal cases.
584. It must always be deemed a reciprocal moral duty for the
respective judges of two states to execute commissions rogatory
and to proceed, on request of the foreign judge, to hear witnesses,
take depositions on interrogatory or undertake judicial acts of any
kind which may be useful to the foreign court having jurisdiction
of the case in the administration of justice.
Article 171 of the Italian consular law reads as follows: “Consuls are auth-
orized to execute commissions rogatory which are addressed to them by foreign
tribunals for the purpose of undertaking personal visits, making inspections
and hearing witnesses, and of receiving the depositions of citizens resident or
temporarily sojourning in the consular district."
585. It is desirable, in order to hasten the proceedings, to admit
direct correspondence between the judges of civilized states, leav-
ing it to the judge to decide as to the legality of the rogatory com-
mission and the expediency of executing it.
In case of the incompetence of the court upon which the request
is made, it should be bound to transfer the commission rogatory
to the competent territorial court, so advising the commissioning
court.
The rule of direct correspondence between the respective judges is admitted
in the convention between Austria and Italy of June 11–21, 1867, by which the
two governments reciprocally consented, in the interest of the dispatch of
civil and criminal proceedings, to allow neighboring judicial authorities to
correspond directly with one another in certain cases.
/
278
INTERNATIONAL LAW CODIFIED
EXECUTION OF COMMISSIONS ROGATORY
586. Judicial authorities must not consider themselves obligated
to execute commissions rogatory in the absence of a special con-
vention between the two states. If, however, the commission
should be executed by reason of the duty of mutual assistance,
such voluntary execution would imply the obligation of reciprocity
between the two states.
587. The judge to whom the commission is issued cannot exe-
cute a rogatory commission which would violate public territorial
law. In case the commission does not violate it, the judge should
follow the law of his own country in the matter of the formalities
of procedure relating to the execution of the commission.
When, owing to the necessities of foreign justice, a special form
of procedure may be required and indicated in the commission
rogatory, the territorial judge may follow the formalities of pro-
cedure indicated, provided they are not contrary to the provisions
of the territorial law.
The purpose of this rule is to dispel the difficulty which may present itself
when, under foreign law, the complaint cannot be valid unless accompanied
by certain formalities of procedure. In such case, by reason of the duty of
mutual assistance, the judge to whom the commission is issued, may, when the
local law is not opposed and the required formality is practicable, comply with
the formalities indicated in the commission rogatory.
ASSISTANCE IN THE ADMINISTRATION OF CRIMINAL JUSTICE
588. It is incumbent upon states reciprocally to assist each
other in the administration of criminal law so as not to allow an
individual suspected of an offense to escape the judgment of the
competent tribunal, and not to allow him when convicted, to en-
joy immunity from punishment.
Beccaria said that nothing can prevent crime better than the firm conviction
that the offender cannot find any place to escape punishment.
589. By reason of the moral duty of reciprocal assistance, in-
dependently of treaties, it is the duty of states to co-operate in
bringing about the regular course of proceedings for the prosecu-
tion of “common” law offenses and to permit the foreign judge
competent to try the case to request the territorial judge to exe-
cute, within the limits of his jurisdiction, any judicial acts re-
quested of him in the interest of justice.
1
DUTY OF MUTUAL ASSISTANCE
279
No judicial act may be requested or executed in the case of a
prosecution involving a political offense.
590. It should be considered a duty of civilized states to deter-
mine by means of extradition treaties the reciprocal obligation to
deliver over fugitive criminals accused of a “common” law offense
---not in the nature of a political offense or tried and convicted for
such an offense without having paid the penalty, who have taken
refuge on their respective territories.
591. In the absence of an extradition treaty, or in the case of an
offense not provided for in the treaty, the authorities of the country
where the offense was committed may, however, request extra-
dition.
The state upon which the demand is made, may in accordance
with the requirements of the territorial law concerning extradi-
tion deliver the criminal accused of a “common” law offense to
the state where the offense was committed.
In case an offense, which under the territorial criminal law and
under that of the state where the offense was committed is punish-
able by a restriction of personal liberty for not less than three years,
the government of the state of refuge should either offer extradi-
tion or punish the criminal according to territorial law.
The surrender of criminals must undoubtedly be considered a legal obliga-
tion when it is stipulated in an extradition treaty. Furthermore, it must be
admitted that all states being interested in maintaining order and general se-
curity and in preventing the political injury resulting from the non-punishment
of offenses, the surrender of the criminal to his natural judge (who is the judge
of the place where the offense was committed) must be considered a moral
duty reciprocal on the part of all states desiring the proper administration
of criminal justice. Of course, it is incumbent upon the government of the
country where the criminal took refuge to see that the judicial authorities,
after examining all the facts, decide whether or not the extradition may be
granted. When, from all the facts, a serious presumption of the guilt of the
criminal arises, a refusal to surrender him must be considered contrary to the
principles of modern law which tends to strengthen the idea of solidarity of
civilized states in the punishment of offenders to safeguard the respect and
authority of law, a conception more just and rational than that which prevailed
in former times, which was inspired by ideas of antagonism, indifference and
egotism.
Compare: Fiore, Effetti internazionali delle sentenze penali e dell'estradizione,
Turin, Loescher, 1877; and Droit pénal international, translated by Ch. An-
toine, Paris, Pédone-Lauriel, 1880.
The new Italian Penal Code sanctions the principle that a foreigner, who
has committed abroad, to the prejudice of another foreigner, an offense punish-
able under Italian law by a penalty restrictive of personal liberty for at least
280
INTERNATIONAL LAW CODIFIED
)
three years, and who has taken refuge in Italy, must be punished even if there
is no extradition treaty, and in such case extradition must be offered by the
Italian government to the government of the state where the offense was
committed, or to that of his country, and when neither governme accepts
such offer, he must be tried by the Italian courts at the request of the Minister
of Justice, and punished, subject to a reasonable diminution of the penalty
(art. 6).
592. The duty of reciprocal assistance for the proper adminis-
tration of criminal justice, should not be considered as limited
where a preliminary examination may be required by reason of a
prosecution directed against a citizen of the state whose assistance
is requested, said citizen having been arrested by a foreign govern-
ment and detained for trial. The same would apply where the
extradition of a citizen is requested.
This rule meets with very grave contradictions. The opposite principle is,
indeed, sanctioned by legislation. (Compare art. 9 of the Italian penal code;
art. 36 of the Austrian criminal code; § 9 of the preliminary provisions of the
criminal code of the German Empire; Belgian law on extradition of March
15, 1874; Dutch law on extradition of April 6, 1885.) The extradition of
citizens is usually excluded by treaties. Therefore, it is contrary to the most
generally admitted principles to surrender a citizen in the absence of a pro-
vision to that effect in the extradition treaty. Yet we hold the contrary view;
because a country ought not to consider criminals as its citizens, nor should
it object to their being made answerable for their offenses.
See Fiore, Effetti internazionali delle sentenze penali e dell' estradizione, chap.
VII, Turin, Loescher, 1877; and Droit pénal international et de l'extradition,
part 2, $$ 343, 374, translated by Antoine, Paris, Pedone-Lauriel, 1880.
In Great Britain and the United States, the non-surrender of a citizen is
not considered an absolute rule; on the contrary, they admit that the criminal
citizen as well as the foreigner, must not escape the jurisdiction of the state
where the offense was committed. Accordingly, in certain extradition treaties
concluded by Great Britain, and especially in those of 1843 with France and of
1855 with Switzerland, the exception in favor of citizens is not expressed.
Nevertheless, as the laws of several states forbid the extradition of citizens,
Great Britain and the United States in their most recent extradition treaties
have had to admit this restriction. The United States in the convention of
June 16, 1852, with Prussia (Malloy's Treaties, p. 1501) stipulated that "none
of the contracting parties shall be bound to deliver up its own citizens or sub-
jects under the stipulations of this convention."
[By article I of the extradition treaty of March 23, 1868, between the United
States and Italy the two governments mutually agreed to deliver up all “per-
sons," etc. It was held by the Supreme Court in the celebrated case of Porter
Charlton (Charlton v. Kelly, 229 U. S. 447) that “persons” included citizens
of the country of asylum. The position of the United States has been that
citizens were included among the persons subject to extradition unless ex-
pressly excluded. (See the able argument of Secretary of State Blaine in
Foreign Relations, 1890, pp. 557 et seq.) The United States has .concluded
treaties both with and without the reservation as to citizens. Among those
containing no limitation or qualification are the treaty with Great Britain,
DUTY OF MUTUAL ASSISTANCE
281
August 9, 1842, extended July 12, 1889, Malloy's Treaties, pp. 650 and 740;
with Italy, March 23, 1868, ibid., p. 966; with Venezuela, August 27, 1860,
ibid., p. 1845; and with Ecuador, June 28, 1872, ibid., p. 436. The Supreme
Court in Charlton v. Kelly, 229 U. S. 447, 467, decided that "there is no prin-
ciple of international law by which citizens are excepted out of an agreement
to surrender 'persons,' where no such exception is made in the treaty itself.”
It has come to be the preponderant practice among many nations, however,
to refuse to deliver up their citizens. The ablest discussion of the whole
question is to be found in J. B. Moore, A treatise on extradition, etc., Boston,
1891, v. I, Ch. V.-Transl.]
JUDICIAL ASSISTANCE TO INDIVIDUALS
593. No civilized state should refuse the assistance of its courts
to foreigners requesting the legal protection of their rights.
All civilized states must admit in principle that the judicial
machinery should not be considered an exclusive privilege for the
benefit of citizens, but that it is their supreme duty to assure its
benefits to all who require it, whether citizens or foreigners.
594. Every state, independently of treaties, must secure by
law the legal protection of the rights of foreigners, by granting to
them, as to citizens, the privilege of using all legal means for the
preservation and legal protection of their rights.
595. It should be considered contrary to modern international
law to compel the foreign plaintiff to furnish in advance security
for the costs of the suit in case he is nonsuited.
It is also desirable that every state grant the privilege of suing
in forma pauperis to destitute foreigners as to its own citizens,
when the competent territorial authorities decide that in the par-
ticular circumstances of the case the foreigner is entitled to avail
himself of that privilege.
The obligation to furnish security for the costs of a suit (cautio judicatum
solvi) is established in various countries, unless expressly renounced by treaty.
In France, the obligation to furnish such security is provided in article 16
of the Civil Code as amended by the law of March 5, 1895, which reads: "In
all cases, the foreign plaintiff, principal or intervenor, shall be obliged to give
security for the costs of the litigation and the eventual damages, etc.”
In Italy, on the contrary, not only is no security required of the foreigner,
but if he fulfills the conditions required to obtain credit from the government
for the expenses of the suit, under the law of December 16, 1865, relating to
suits of poor persons, he may in that respect enjoy the same privilege as citi-
In fact, article 8 provides that foreigners, if they comply with the re-
quirements of the law, are not excluded from the privilege of suing in forma
pauperis.
zens.
TITLE XXI
INTERNATIONAL RESPONSIBILITY OF THE STATE
FUNDAMENTAL PRINCIPLES
596. Every state which commits an act violative of the right of
another state or of private individuals, in its character as a sov-
ereign or by persons entrusted with the exercise of public power,
incurs responsibility and must make compensation for the injury
inflicted.
Every state having to exercise its rights and all the functions assigned to the
sovereign in conformity with the rules of international law, must exercise its
sovereign powers without violating them. That is the principle of its general
responsibility, which may be incurred in the exercise of legislative, judicial, or
executive powers, whenever it does not respect the rules of law governing
their exercise. It is our purpose here to examine the particular responsibility
which may result from the acts of the government or from those of public
officers causing damage and giving rise to the obligation of indemnification
and reparation.
597. The international responsibility of the state, according to
the circumstances of the case, may be either direct or indirect.
It is considered direct whenever it arises as a consequence of
acts committed by the government or with its authorization.
It is considered indirect when it arises from acts done by public
officers, and even in certain cases by individuals, when the injury
may be regarded as inflicted through the fault of the government
whose duty to prevent the injury it has negligently failed to ac-
complish.
598. It is incumbent upon every state to decide whether the
obligation to repair the damage caused by persons vested with
public power should fall upon the state or upon its officers by apply-
ing the rules of public administrative law or special municipal
laws, or in their absence, the general principles of law, and to de-
termine the damages due to the injured parties, whether alien or
national.
282
INTERNATIONAL RESPONSIBILITY OF THE STATE
283
DIRECT RESPONSIBILITY
599. When the government of a state, by reason of momentary
exigencies and public necessities, takes action which results in an
injury to a foreign state or to its citizens, it is bound to repair the
damage. The state must be held directly responsible therefor,
even though the action of the government may be deemed lawful
and justified as such.
In order to understand our rules fully, it must be observed that the legal
exercise of sovereign powers may exclude in principle any international responsi-
bility of the state. No one, in effect, may forbid the state from doing what-
ever public necessities require, and whatever may be considered as within the
limits of legality. Therefore, if a government, even in doing what it has a
right to do, should be led to injure the property rights of others, it could be
held with reason that it ought not to be bound to repair the damage, rejecting
any claim of the injured parties to indemnification.
The right of private persons must necessarily be subordinated to that of the
collectivity and of the sovereignty which represents it. Therefore, the acts
of the sovereign to provide for the social requirements and defense of the rights
of the state cannot imply any international responsibility. Yet, in our opin-
ion, it cannot be maintained that the injured person should not receive any
indemnity and that the responsibility of the state is not to be admitted as re-
gards indemnification for the injury done to foreigners through the necessity
of providing for the protection of the social interests.
Consequently, we believe that the case requires the application by analogy
of the general principles which justify expropriation on grounds of public
utility, and that a just indemnity should be recognized. (Compare: Fiore,
Questioni di diritto: Sulla responsabilità dello Stato, pp. 364 et seq.)
Our rule might find application in a case where, during a revolution, civil
and military authorities exercise exceptional powers justifiable under inter-
national or public municipal law, the exercise of which inflicts a real and ma-
terial damage upon foreigners, as, for instance, in case of the bombardment of
a fortified commercial city.
600. The direct responsibility of the state should be admitted
whenever the damage can be considered as a consequence of its
own act.
We consider as within this rule the maintenance by a state of a
system of laws recognized as ineffectual in the repression of in-
juries to the rights of a friendly state or of its citizens and in the
reparation of the resulting damage, provided the defects of the
system are serious and notorious and the state has failed promptly
to remedy them.
601. It is incumbent upon every state in good faith to do every-
thing necessary to ensure the respect of the rules of international
284
INTERNATIONAL LAW CODIFIED
law by private individuals, and to repress acts prejudicial to a
foreign state or foreign citizens.
602. A government which has honestly and in good faith taken
all possible measures to prevent injurious acts, may base upon
that fact an allegation of a presumption of non-responsibility on
its part.
This presumption should not be overcome by the mere fact that
the government has not resorted to measures inconsistent with the
political institutions of the state or bas been unable to amend its
legislation so as to put an end to the resulting inconveniences.
In order to make quite clear the suggestive idea of the foregoing rules relat-
ing to the inherent defects in legislation and the measures designed to repair
injuries inflicted on other states or foreigners, it must be noted that in order to
determine in practice the efficacy of a system of law, it is necessary to ascer-
tain exactly whether or not such system can prevent the injurious acts. When
the defects of such legislation are serious and notorious, and especially when
the necessity of amending the system is recognized by the states assembled in
a Congress (as is the case with respect to Turkey, for instance), one could not
reasonably assert, as a bar to responsibility, that the government had resorted
to all the means at its disposal. Valid presumptions in the state's favor could
be admitted only when the defects and inefficiency of the legislation have not
yet been established. It is necessary, therefore, to examine carefully the
circumstances of the case to determine whether or not any of the rules proposed
should be applied.
603. The responsibility of the state cannot be denied for the
voluntary commission of acts forbidden by international law
whenever damage has thereby been caused to another state or its
citizens.
Any act forbidden by international law must be considered unlawful, and
when it can be charged against a person exercising public power, it must
naturally imply the international responsibility of the state and its obligation
to make due reparation. In such case, we must apply the principles governing
civil responsibility arising from tortious injuries.
INDIRECT RESPONSIBILITY
604. The indirect responsibility of the state for the acts of its
officers or private individuals who have committed an injury upon
others must be admitted whenever the government has failed to
take all measures necessary to prevent the injurious acts,
This rule is based on the theory of the Roman jurisconsults in the matter of
responsibility, which may also result from the negligent omission (in case of
an injury caused by others) to do whatever one was bound to do to prevent
1
INTERNATIONAL RESPONSIBILITY OF THE STATE
285
the damage: qui non facit quod facere debet, videtur facere adversus ea quia non
facit (Leg. 121, Dig. De diversis regulis juris, 50, 17) See Sourdat, Traité
générale de la responsabilité ou de l'action en dommages-intérêts en dehors des
contrats.
605. The responsibility of the state for the acts of others may
grow out of the negligence or grave indiscretion of the government.
The promptness with which each government is bound to pre-
vent injurious acts forbidden under international law, must be
judged according to the contingencies and circumstances of the
case, the interests involved, and the degree of possibility of antic-
ipating events which might inflict injury upon a friendly state or
its citizens.
It must be admitted in principle that every civilized government is bound to
prevent, and that it is at fault when it has not done everything that it should
to prevent known violations of international law and injuries to the property
rights of foreign states or citizens. Nevertheless, concretely, negligence may
be determined by the imminence of the danger and the possibility of anticipat-
ing it. Effective responsibility and the obligation to repair a damage can arise
only in consequence of a fault imputable to the government and it is only by
taking circumstances into account that it is possible to determine the com-
parative degree of fault.
606. A state should be held responsible for voluntary failure of
prompt action, when, having had cognizance of the event respon-
sible for the injury, it has not, in order to prevent its effects, em-
ployed the means at its disposal or those it could readily obtain
from the legislative power.
The extent of the responsibility of the state should be propor-
tionate to the imminence or danger of the injury and the possibility
of preventing it.
607. The responsibility of the state for culpable omission on the
part of the government should be admitted when it has not done
everything possible to prevent others from committing an in-
jurious act.
RESPONSIBILITY FOR ACTS OF OFFICERS
608. The subsidiary responsibility of the state may be admitted
for the acts of its public officers who have caused injury to foreign
interests, when they have abused or exceeded their authorized
powers or when, even in the absence of express authorization of
the government, there is tacit connivance on its part.
This responsibility should be recognized when the government:
286
INTERNATIONAL LAW CODIFIED
a. Having known of, in sufficient time to prevent, the proposed
unlawful act of the public officer and, being able to prevent it,
has failed to do so;
b. Having had sufficient time to annul the act of its officer or
to prevent its detrimental effects, it failed immediately to
annul it or prevent its injurious effects;
c. Alleging ignorance of the act intended by the officer may,
under the circumstances, be considered as in bad faith or
culpable;
d. Having been informed either through official channels, or
trustworthy information, of the act committed, it failed to re-
primand the officer immediately and take the necessary meas-
ures to arrest the detrimental effects of the act and prevent
its future recurrence.
See, Oppenheim, International law, $$ 157 et seq.
609. The responsibility of the state arising out of the acts of
public officers may be transformed into true direct responsibility
whenever it is possible to establish from the circumstances that
the officers have acted in obedience to the instructions of the
government.
This would undoubtedly be the case when, in the different sections of the
country, officers have acted uniformly, thus giving the impression, beyond all
possible contradiction, that they must have obeyed official instructions.
610. The indirect responsibility of the state for the acts of
public officers should be denied when, under municipal law, the
injured party may have recourse to the courts effectively to compel
the officer to make amends for the injury he has inflicted on
foreigners.
The difficulties connected with the responsibility of the state due to the acts
of its officers are very complex, not only in international law, but even in
public municipal law. It must be admitted in principle that foreigners cannot
claim a greater advantage than citizens. For applications of the rules relating
to the international responsibility of states, see, Calvo, Droit internat., $$ 1266
et seq.; Bonfils, Manuel de droit international public, $$ 324–352.
The responsibility of the state arising from acts of its officers must always
be considered as based on the presumption of culpability of the government
for lack of promptness in doing what it should have done. It may be negli-
gence on the part of the government when it has failed to take the measures
required by the most elementary prudence to prevent the injurious act, or to
arrest or minimize its effects. It should, moreover, be considered necessary in
order to fix responsibility on the state, that the damage shall have been
inflicted in the exercise of the officer's duties.
INTERNATIONAL RESPONSIBILITY OF THE STATE
287
RESPONSIBILITY OF THE STATE ARISING FROM ACTS OF PRIVATE
PERSONS
611. The indirect responsibility of the state arising out of acts
of private persons to the injury of foreign states or citizens can be
predicated only when the government may be considered as obli-
gated to prevent the acts and has omitted to do what it should
have done, or when it may be reasonably presumed that the
government has, with evident culpability, allowed private indi-
viduals to commit injurious acts which it was its duty to prevent,
or when it failed to make use of all the means at its disposal to
arrest their effects.
In principle, the indirect responsibility of the state arising from the acts of
others cannot be admitted. The basis of this responsibility must always be
culpable omission of a duty legally or morally imposed upon it. There must
be a general obligation on the part of the government, with respect to an in-
jurious act, to do something on its own part (to exercise surveillance, to pre-
vent, or to punish) in order to raise the presumption of fault by reason of an
omission to do something it was bound to do. (Compare: Fiore, Questioni
di diritto, p. 295, Turin, Unione Tipografico-Editrice, 1904.)
The proposed rule would find its application in time of war with regard to a
state which had declared its neutrality. Neutrality not only implies the
obligation of the government to refrain from any direct assistance, but also
that of preventing private persons from giving assistance to the belligerents
and organizing it on the territory of the state which has declared its neutrality.
The indirect responsibility of the state should be conceded when the govern-
ment has negligently allowed private individuals to organize on its territory
means of assistance of a nature hostile and prejudicial to one of the belligerents.
These are the principles on which was based the award of the Geneva arbitral
tribunal in the celebrated controversy between Great Britain and the United
States arising out of the Alabama claims during the Civil War.
612. In order to concede or deny the responsibility of the state
for acts of private persons, it is necessary to adduce or disprove
evidence of fault on the part of the government.
It rests with the claimant to establish by sufficient evidence the
presumption of culpability of the government, so as to charge it
with responsibility for injuries inflicted by others.
It is the right of the government, when the presumption of
culpability on its part has been raised, to furnish complete proof
that it has acted promptly and done all it possibly could to pro-
hibit and prevent the injurious act or arrest its effects.
It would surely not be sufficient to assert that the government should be
presumed to be culpable; it would be necessary to prove that it was bound to
take precautions to prevent the injurious act, and that it has neglected to do
288
INTERNATIONAL LAW CODIFIED.
SO.
,
The burden of proof must rest upon the claimant. After the presump-
tion of fault of the government is thus established, it is clear that it can-
not deny its responsibility, except by proving that it was guilty of no omission
of duty implying fault.
613. Whenever the responsibility of the state for injuries to
foreign states or to foreigners has been established, and the obliga-
tion of reparation for the injuries has been admitted, no difference
should be made whether the injured party is a citizen or a foreigner
Even when it is necessary to concede the application of the prin-
ciples of equity and rules of public administration for the repara-
tion of the injury, these principles ought to be applied to foreigners
and to citizens alike.
614. As to the indemnities due for damage caused during ordi-
nary or civil war, the rules relating to the exercise of the rights of
war should be applied, in so far as they modify the rules previously
established.
615. International disputes growing out of the responsibility of
the state for the reparation of injuries to property suffered by
foreign states and private persons must be submitted to inter-
national commissions of inquiry and to arbitral courts.
TITLE XXII
DUTIES OF HUMANITY
616. Every civilized state must always act in conformity with
the principles of moral law and comply with the duties of humanity.
Every state should refrain from actions which may be contrary
to the well-being of other states or might injure them. It should
also co-operate, without detriment to its national interests, in the
promotion of general prosperity.
We may apply, even in international relations, the principle formulated by
the Roman jurists: Quod tibi non nocet, alteri vero prodest, non est denegandum.
617. No state may compel another state to observe the duties of
humanity, nor may a state consider, the refusal of another as un-
friendly and hostile.
Yet, when the act of another state may be considered as con-
trary to the principles of moral law or to those of humanity and of
the comitas gentium, and inflicts a real injury upon other states, it
may call for a collective remonstrance for the protection of common
interests.
The precept honeste vivere commends itself to states as well as to all persons
wishing to act in conformity with the principles of natural justice. This precept
requires no demonstration and no power of dialectics could augment its clear-
ness and force.
We must admit, therefore, that the performance of moral duties must be
left to the unrestricted appreciation of each government. We believe, how-
ever, that an arbitrary and persistent refusal cannot be justified in any case.
Thus, for instance, it cannot be admitted that a state may arbitrarily refuse
to receive a scientific mission which intends to study a contagious disease,
determining its cause, development and propagation. Such unjustified refusal
may be a serious ground for complaints by other states.
618. It should be considered a moral duty imposed on every
civilized state to do everything necessary to prevent public calam-
ities.
For that purpose, states should:
(a) Encourage scientific research into the causes of certain
289
290
INTERNATIONAL LAW CODIFIED
contagious diseases, pursued with the object of preventing their
propagation;
(6) Co-operate to prevent the spread of epidemics, by imme-
diately advising foreign governments of the first appearance on
their territory of cases of contagious disease (plague, cholera,
etc.); by making known the region where the disease has appeared,
its gravity and the measures adopted to arrest its spreading;
(c) Prescribe without delay the sanitary measures designed to
prevent the spread of contagious diseases;
(d) Promote the meeting of sanitary conferences and encourage
discussions for the study of questions of public health in their
relations with effective international co-operation;
(e) Co-operate to assist foreigners employed in industry, in case
of accident, destitution or sickness, and to send them to their own
country if without means or the assistance of a consul of their
country.
At the sanitary conference of Vienna of August 1, 1874, the wish was ex-
pressed that a permanent international commission be created for the study of
contagious diseases and the prescription of measures designed to prevent them
from spreading.
This wish was realized in the convention signed at Vienna, March 19, 1897,
in which the necessary measures to prevent the introduction of bubonic plague
in Europe were established by the following countries: Germany, Austria-
Hungary, Belgium, Spain, United States, France, Great Britain, Greece,
Italy, Luxemburg, Montenegro, the Netherlands, Persia, Rumania, Russia,
Switzerland and Turkey.
Finally, on December 13, 1903, with a view to preventing the spreading of
plague and cholera, there was concluded at Paris an international sanitary con-
vention between Germany, Austria-Hungary, Belgium, Brazil, Egypt, Spain,
the United States, France, Great Britain, Greece, Italy, Luxemburg, Monte-
negro, the Netherlands, Persia, Portugal, Rumania, Russia and Switzerland.
TITLE XXIII
INTERNATIONAL RIGHTS AND DUTIES OF MAN
GENERAL RULE
619. Whatever his race, degree of culture and color may be,
man, so long as he lives in political association, even if he has a
nomadic existence, does not lose the rights of human personality
which are his according to international law. He may everywhere
request the respect, enjoyment and exercise of these rights, on
condition of subjecting himself to the authority of territorial laws
and of observing the local laws.
Compare rules 1-66 et seq.
INVIOLABILITY OF THE PERSON
620. Every one is entitled to personal inviolability as a man and
any injury to his person and his liberty must be considered con-
trary to international law, which protects man, even when not a
member of a political body organized as a state.
621. The liberty of man must be respected as his personal
right, independently of treaties, and must be protected and guar-
anteed by all the legal and judicial measures employed in behalf
of citizens.
622. The right of personal liberty and inviolability cannot be
denied to any man, whatever his race or color.
PERSONAL RIGHTS OF NEGROES
623. Any state which denies to negroes the rights of human
personality and permits them to be bought and sold, as it does
property, violates international law.
624. The traffic in negroes, under whatever form it may be
291
292
INTERNATIONAL LAW CODIFIED
-
carried on, and even with the authorization and tolerance of the
state where it is conducted, must be considered as an infringe-
ment of the rights of human personality and declared absolutely
unlawful and contrary to international law.
625. Every civilized state must do everything necessary to
guarantee the personal inviolability of negroes, use all the means
at its disposal to put an end to the shameful traffic in them and
punish those who carry it on or take part in it either directly or
indirectly
The Italian law severely punishes the slave trade by penalties providing for
the punishment of maritime offenses in Chapter V of the Merchant Marine
Code. Article 337 provides that the offense of slave trading shall be considered
as committed whenever a slave shall be treated as such on board a national
vessel. The Code also provides for the punishment of attempts at slave trad-
ing, which is considered as accomplished when a vessel fitted out for the trans-
port of slaves has been caught before the act of slave trading has taken place.
(Arts. 340-341.)
626. Any slave, although bought where the slave trade is de-
clared lawful, must be considered free and inviolable in his person
as soon as he enters the territory of a civilized state, which is
bound to protect his liberty and the inviolability of his person.
This rule was sanctioned in the anti-slave Act of July 2, 1890, article 7 of
which reads as follows: “Every fugitive slave who, or the continent, claims the
protection of the signatory Powers, must receive it and shall be received in the
camps and stations officially established by the Powers or on board public
vessels navigating in the lakes and rivers. Stations and private vessels can
exercise the right of asylum only with the prior consent of the state."
627. All civilized states should adopt the measures necessary to
put an end to the slave trade in the regions where it still exists,
considering as unlawful not only the traffic itself, but also all
operations on land and sea designed to maintain and exercise it.
They must, moreover, use all their influence to compel bar-
barian sovereigns and uncivilized peoples who permit the slave
trade, to put an end to it.
This rule is sanctioned by article 9 of the treaty of Berlin of Feb-
ruary 26, 1885, and forms the "common” law of the following states: Austria-
Hungary, Belgium, Denmark, France, Germany, Great Britain, Italy, the
Netherlands, Luxemburg, Norway, Portugal, Russia, Spain, the United States,
Sweden, and Turkey. These countries have adopted the following declara-
tion relating to the slave trade: “Article 9: In conformity with the prin-
ciples of the law of nations as recognized by the signatory Powers, the slave
trade as well as all incidental operations on land and sea being prohibited, the
Powers which now or hereafter exercise rights of sovereignty or influence in
INTERNATIONAL RIGHTS AND DUTIES OF MAN
293
the territories forming the conventional Congo basin declare that these terri-
tories shall pot serve either as a market or as a channel of transit for the trade
in slaves of any race. Each of the Powers undertakes to employ all the means
within its power to put an end to the trade and punish those who engage in it.”
628. The rules adopted in the General Act signed at Brussels
on July 2, 1890, for the suppression of the slave trade must be
considered as the expression of the principles demanded by civili-
zation to protect the individual liberty and inviolability of the
human person and must be deemed binding on all civilized states.
The general anti-slave act, concluded at Brussels July 2, 1890, was signed by
Austria-Hungary, Belgium, Congo, Denmark, France, Germany, Great Brit-
ain, Italy, the Netherlands, Persia, Portugal, Russia, Spain, the United States,
Sweden and Norway, Turkey and Zanzibar. Under this treaty the signatory
powers adopted the most effective means of suppressing the slave trade in the
maritime zones where it still existed. Besides the means designed to prevent
the transportation of slaves, e. g., the reciprocal right of surveillance, search
and seizure of the ships engaged in transporting slaves (art. 22), the signatory
powers authorized more efficient means of suppressing the slave trade in the
places of origin in the interior of Africa (art. 1) and watching convoys along
the land roads used by slave dealers (arts. 15 and 19). They prescribed in like
manner the best means of protecting liberated slaves and founded places of
refuge for the purpose of encouraging the liberation of slaves (art. 86).
INVIOLABILITY OF PROPERTY
629. Private property must be considered inviolate under inter-
national law, no matter what form it may assume.
630. Every man may employ his faculties with regard to prop-
erty, wherever located, and acquire it under the conditions estab-
lished and determined by the lex rei sitæ.
631. Literary, artistic and industrial property should likewise
be considered inviolate.
We do not admit that the fruits of the intellect should be considered as
property. We do not find therein the requisites and characteristics of things
constituting the object of property. However, this is not the place to expound
our views, and we shall merely say that we have adopted the usual terminology,
without undertaking to guarantee its accuracy.
632. The right of the author of a product of the intellect to
obtain the legal protection of his right, whatever it may be, under
the conditions determined by law, must be considered as founded
on the respect due to the international rights of man in the noblest
manifestations of his activity. While an international right of
man apart from treaty, it is incumbent on states to assure legal
294
INTERNATIONAL LAW CODIFIED
protection for the rights in literary and artistic property by means
of treaties.
The foregoing rules seek to respect the right of an author over his production
and the inviolability of such right from a legal point of view. It cannot be
considered as a gracious concession of a prince, nor as a privilege based on
treaties, nor as a privilege assured exclusively to citizens. It is the most
sacred right of the human personality, because it is the fruit of personal ac-
tivity which has manifested itself and been developed through work. It must,
therefore, be considered as a right of man and as such have the character of an
international right for the good reason that the rights of the human personality
cannot be restricted within the territorial limits of any one country.
633. Save for the right of every state to subject the protection
of literary, artistic and industrial property to certain legal condi-
tions previously determined, it must be conceded that a failure
to assure equal treatment to foreigners and citizens is a violation
of international law on the part of the state.
634. It is contrary to modern international law for a state to
forbid to foreigners the acquisition of real or personal property
under the same legal conditions as citizens, or to deny to foreigners
the enjoyment of the private rights embraced in the right of prop-
erty. The state may reserve to citizens exclusively, on grounds of
public policy or social welfare, certain rights relating to particular
matters. The state may also grant the enjoyment of certain rights
connected with real property to citizens alone, by reason of the
special nature of the rights and their connection with public law
and public policy.
635. Yet when by the laws of a country foreigners or foreign
states are prohibited from acquiring real property by inheritance,
provided the right to inherit is recognized, the territorial state
cannot confiscate decedent's estates to its own profit; it can only
compel the heir or successor to the estate to alienate the property,
with the right to receive and take away the purchase price.
This rule was developed at greater length in our legal opinion on the Zappa
succession in Rumania. Under the legislation of that country, foreigners being
forbidden to acquire the real property bequeathed by the deceased to Greece
the question arose as to whether Rumania could confiscate the property.
See Fiore, Successione Zappa, Controversia tra la Grecia e la Romania. As
regards legacies to the Pope and to the Church, see rule 712.
636. Private property, whoever its owner, must be held invio-
late, even on the high seas in time of war, save when the rights of
ownership are subject to just limitations under rules of inter-
INTERNATIONAL RIGHTS AND DUTIES OF MAN
295
national law governing the rights of belligerents and private per-
sons in time of war.
637. Civilized states must consider as reciprocally binding upon
each other all legal rules designed for the protection of property
in all its forms.
RIGHT OF FREE MIGRATION
638. Everyone, whether a citizen of a state or belonging to an
uncivilized tribe or living a nomadic existence, has the right freely
to enter the territory of any state open to trade, observing the laws
of police and public security applicable to foreigners, and he may
sojourn there, provided he complies with the local laws.
This rule seeks to do away with the necessity of the passport imposed upon
foreigners desiring to enter the territory of a state. The passport may always
be useful in ascertaining the nationality of the holder and furnishing prima
facie evidence thereof. But it cannot be maintained that the right to enter a
state is based on the passport, and that the absence of that document consti-
tutes sufficient grounds to deny admission to a state open to trade.
639. No state professing to respect the principles of modern
international law may, through exaggerated measures of precau-
tion, hinder or impede the entrance of foreigners into its territory,
nór oppose their sojourning without reasonable grounds based on
public order or policy.
Compare rules 261 et seq.
640. A state always has the right to regulate by special laws the
entrance of foreigners into its territory and to determine the neces-
sary conditions for the practice of professions, arts and trades, in
harmony with the social, economic and political interests of the
country.
641. A foreigner who has entered a state may depart without
previous authorization of the government unless, under the terri-
torial laws, he must be considered as temporarily deprived of his
personal liberty.
642. Every foreigner, independently of treaties, must be pro-
tected by the laws of the state where he resides in the enjoyment
and exercise of his civil rights; he must be allowed to undertake
civil acts, without being considered, as a foreigner, outside the
pale of “common” law.
1
296
INTERNATIONAL LAW CODIFIED
RIGHT TO EMIGRATE
643. The right to emigrate is one of the personal rights of man,
and must be considered as a development of individual freedom.
No state may prevent its citizens freely and without obstacle
to leave its territory to go abroad in order to develop their activity
with the hope of larger rewards. The emigrant may, however, be
required to have fulfilled his military obligations for the period le-
gally imposed upon all citizens.
644. Emigration does not break the bond between the emigrant
and his native country. Nevertheless, the emigrant is bound to
obey the laws of the state where he resides, even as regards the
exercise of rights accorded him by the laws of his native country.
645. The government of the state of which the emigrant is a
citizen may use any lawful means to maintain the bond which
connects him with his country, by encouraging the preservation
of his national sentiments, promoting his attachment to the insti-
tutions of his native country and protecting him against vexatious
measures of local governments.
It must be observed, however, that in principle this must be
done without violating or disregarding the rights of the territorial
state and without effecting a sort of disguised invasion or inter-
vention.
A well-organized emigration may become an important factor of the eco-
nomic and commercial prosperity of states and an efficient instrument of the
civilization of barbarian nations. Instead of opposing it, therefore, states
should encourage emigration by considering it as a measure well adapted to
meet the pressing necessity of individuals to earn a livelihood through profita-
ble labor, and to bring about a more equitable relation between the lands of
the earth and the men who must people and work it. Emigration may ad-
mirably contribute to the spread of civilization, by permitting barbarian peo-
ples peacefully to benefit by the more advanced culture and energy of more
industrious workers and more enlightened commerce, so as gradually to attain
the same level of culture and civilization.
646. It is the duty of the territorial state to regulate immigra-
tion by limiting it, according to circumstances, in order to prevent
the moral and economic disturbances likely to arise from an ex-
cessive immigration and by reconciling the practice of professions,
arts and trades on the part of immigrants with the moral and eco-
nomic interests of citizens and the political interests of the state.
647. It is incumbent on the states of which the emigrants are
INTERNATIONAL RIGHTS AND DUTIES OF MAN
297
citizens, to protect them against the traps of speculators and emi-
gration agencies and to prevent emigration from being fomented
by fallacious promises of exaggerated profit.
To that end it should:
a. Regulate emigration by special laws;
b. Subject agencies to the authorization of the government and
supervise the operations of securing employment, embar-
cation and transportation effected by them;
c. Subject to legislative rules the relations of emigration agents
to emigrants;
d. Take into consideration the claims of emigrants and compel,
by criminal penalties, the observance of the obligations
imposed on emigration agents;
e. Do everything that may be required to modify the political
or social conditions which may influence emigration.
FREEDOM OF NAVIGATION AND COMMERCE
648. Everyone has the right to navigate freely on the high seas
and in the waters included within the territorial domain of any
state, on condition of observing the rules governing navigation;
he may invoke the application of the international laws which
protect persons and property engaged in navigation.
See Book III for the rules of navigation.
649. Anyone may enter territorial waters and invoke the pro-
tection of international law in so far as it governs the peaceful use
of such waters, on condition of complying with the laws and regu-
lations of the territorial state.
He may freely use all means of communication for the free
exercise of his activities, provided be observes the local laws and
regulations.
The purpose of this rule is to establish the fact that the right of navigation
over the territorial waters of a state must not be considered as based on trea-
ties and reserved only for the citizens of states which have concluded treaties.
No sovereign who does not wish to violate the principles of international law,
may arbitrarily deny the peaceful use of channels of communication by land
and sea to an individual who is not a citizen of a state with which there exists
a treaty granting such right under reciprocity. We believe, therefore, that the
peaceful use of means of communication must be considered as an inherent
right of man, whenever the individual who seeks to avail himself of it complies
with the territorial laws governing the subject.
298
INTERNATIONAL LAW CODIFIED
RIGHT OF FREEDOM OF CONSCIENCE
650. Freedom of religious worship must be protected by inter-
national law and considered as one of the international rights of
1
man.
Everyone may retain or change his religious faith with complete
freedom and does not have to account to anyone for his decision
nor for his refusal to join any particular faith.
651. Everyone is entitled freely to practise his religion, pro-
vided that it is not prohibited by the territorial law, or does not
happen to be subsequently prohibited for reasons of public policy
or order.
652. Religious persecution should be considered as an infringe-
ment of the right of freedom of conscience and should be deemed
a grave violation of international law on the part of the state, if
it has authorized it and has failed to do everything in its power to
prevent it.
653. It should be considered as a grave infringement of modern
international law to condition the enjoyment of civil rights upon
religious faith, or to bring into play any kind of influence whatso-
ever to compel foreigners to change their religious faith and es-
pecially to expose them to persecution or annoyance for refusing
to change it.
In like manner, it must be held unlawful to subject foreigners
to examinations and inquisitorial measures in order to ascertain
their religious faith.
RIGHT OF CITIZENSHIP
| 654. Every person legally capable of exercising civil rights
may freely choose the state to which he wishes to belong and
when he has fulfilled all the conditions fixed by the legislature, he
may demand recognition of his citizenship and the enjoyment of
all the rights and privileges granted by law to citizens.
655. The title of citizen may be given to any person who, while
not legally capable of choosing the state to which he wishes to
belong, nevertheless fulfils the conditions fixed by law to be deemed
a citizen.
The legislatures of the different countries assign the title of citizen to persons
who are not capable of expressing their own will, by taking into account their
INTERNATIONAL RIGHTS AND DUTIES OF MAN
299
4
natural tendencies predetermined by blood ties and family relations. It is
justly presumed that the child should desire to follow the legal status of his
father. Accordingly, the laws provide that the child acquires at his birth the
citizenship of the father and preserves it, first during his minority and then
after his majority so long as he does not manifest his desire to acquire another
citizenship.
656. Every state may determine the persons who are to be
considered citizens and foreigners, and the rules for the determina-
tion of these matters must be considered within the sphere of the
state's autonomy and independence.
657. We must admit the anomalous condition by which under
the municipal law of two different states an individual may be
deemed a citizen of both states, thus possessing dual citizenship.
It often happens that, in consequence of the legislative autonomy of every
state, a person is endowed with dual citizenship. According to article 8 of
the French Civil Code, as amended by the law of July 22, 1893, any person
born in France of foreign parents one of whom was born in France, is consid-
ered French, provided he does not renounce his French citizenship within a
year of his majority, determined in conformity with French law. On the
other hand, according to article 4 of the Italian Civil Code, a child born in
France of an Italian father is deemed an Italian, although he meets the con-
di provided for in article 8 of the French Civil Code. It remains to be
said that national courts must decide questions of citizenship in accordance
with national law, disregarding the fact that the same person possesses also
a dual nationality.
The same thing happens under laws granting citizenship to persons born
within the state of foreign parents. This is the case in the Argentine Republic
by the law of October 1, 1869; in Bolivia, according to the constitution of
February 15, 1878; in Ecuador, according to the constitution of August 11,
1869; in Guatemala, under the constitution of 1851, revised in 1859;
in Mexico, in conformity with articles 1 and 2 of the law of May 28,
1886; as well as in a great many other countries. Now, under article 4 of the
Italian Civil Code, children born in those countries of Italian fathers, are de-
clared to be Italian, so that the fact that they are citizens of two states
is the unavoidable consequence of the conflict of municipal legislation relating
to citizenship. This anomalous condition fortifies the opinion of jurists who
demand an international agreement to prevent these inconveniences. [See
Lelong's case and the views of the Department of State on dual nationality
in July, 1915, Supplement to American Journal of International Law, pp. 369–
375. See also Borchard, Diplomatic protection of citizens abroad (New York,
1915), $$ 253–261.-Transl.]
Compare: Court of Cassation of Florence, February 3, 1875, Vincentini case.
(Bettini, XXXI, I, 1, 429.)
CHANGE OF CITIZENSHIP
658. Any person legally competent under his national law may
renounce the citizenship of that country to acquire another. This
300
INTERNATIONAL LAW CODIFIED
is one of the personal rights of man, which cannot be conditioned
upon the previous authorization of the state of which he is ac-
tually a citizen.
659. The loss of nationality of origin may be effected by express
or tacit renunciation; it cannot, however, become effective until
a new citizenship in another state has been acquired.
660. Express or tacit renunciation is valid when it takes place
in accordance with the forms determined by law.
Tacit renunciation of the nationality of origin may be accom-
plished by voluntarily doing something which, under the national
law of a person, is incompatible with the retention of citizenship.
Citizenship must be considered as a great benefit to the person who possesses
it. Consequently, it must be presumed that every one, so long as he has not
renounced it, desires to retain his citizenship.
In order to admit tacit renunciation, two conditions are required: 1st, that
the act from which the inference is drawn shall have been voluntary; 2d, that
the act be expressly indicated in the law as sufficient in itself to cause a loss
of citizenship. This is the only way in which the respect of the right of free
attachment to the state, one of the personal rights of man, may be assured.
UNLAWFUL CHANGE OF CITIZENSHIP
661. Renunciation of citizenship should not be considered as
valid, if effected fraudulently and in bad faith. This would be
the case if citizenship is renounced merely with a view to escape
the authority and penalty of the law in order to accomplish a pro-
hibited act or to violate a right acquired by a third person ac-
cording to his national law.
662. Renunciation of citizenship may likewise be considered to
have been effected in bad faith, when it appears from the circum-
stances that the person, without any permanent intention of
abandoning his native country, actually and finally, has tempo-
rarily changed his personal statute for the sole purpose of thus
exercising certain rights which his national law denies him. This
intention may be inferred from the fact that he has maintained
the bonds which connected him with his country, by manifesting
his intention to reacquire anew his renounced citizenship.
In order properly to explain the idea developed in the foregoing rules, we
must recall that in admitting the right of every one to select freely the state
of his choice, we stated that it cannot be considered a fraud on the law to change
citizenship in order to acquire the enjoyment of rights more extensive than
those granted by the law of his country.
This being his personal right, it cannot be said that a person exercises that
INTERNATIONAL RIGHTS AND DUTIES OF MAN
301
right in bad faith and unlawfully when by so doing he has defeated the expec-
tations of others: qui suo jure utitur nemini injuriam facit. This would be
the case, for example, of a person who, in order to dispose more freely of his
property, renounces his present citizenship so as to have greater liberty to
bequeath by will. Such action could not be said to be fraudulent because
the expectations of his legal successors may have been defeated.
Since the right to succeed becomes effective at the time of death only, the
order and measure of rights of succession can be determined under the law in
force only at the time of the decedent's death. Considering that the right to
change citizenship is essentially personal, one cannot allege the invalidity of
the new citizenship legally acquired, on the ground of the possible injury to
the heirs, for the latter cannot profit by any right of succession during the life
of the decedent; for expectations never constitute vested rights.
Invalidity because of fraud upon the law can be asserted in the case of a
person, incompetent to change his citizenship and to avoid the effect of the law
which governs the exercise of his rights, who seeks to acquire the citizenship
of another state in order to exercise rights denied to him by the law of his
country; or when a person changes his citizenship to avoid the obligation of
respecting rights acquired by third persons under the law. (This would be
the case of a husband who, in order to deprive his wife of the right to demand
the return of her dowry, becomes naturalized in a country where this right is
not admitted against the husband).
The same thing may be said where, under the circumstances, citizenship
could not be considered as real and effective, but as essentially void by reason
of the fact that its main object is to withdraw the person acquiring it from the
authority of his national law; as, for example, when an Italian, in order to
escape the authority of the Italian law forbidding divorce becomes naturalized
pro forma in a foreign country so as to secure a divorce with the intention of
subsequently recovering his Italian citizenship in order to marry another
woman in Italy. Owing to the fact that, while he renounces his Italian citizen-
ship, he still retains Italy as the main center of his affairs and interests, and
that, all things considered, it appears that his renunciation of Italian citizen-
ship was neither genuine or real, but was effected merely with a view to avoid
the imperative commands of his national law, the fraud upon the law is clear.
663. It cannot be considered fraudulent to renounce one's citi-
zenship in order to change one's personal statute so as to acquire
more extended rights, even though this renunciation may be
prejudicial to the expectations of third parties.
664. Change of citizenship can have no retroactive effects.
Therefore, the acquisition of foreign citizenship can never relieve
a person from fulfilling obligations imposed on citizens, such as
the civil obligations incurred before the loss of citizenship, military
service, and the respect of the rights acquired by third parties, etc.
NECESSITY OF A COMMON LAW RELATING TO CITIZENSHIP
665. It is incumbent on states, in order to avoid difficulties due
to questions of citizenship and to prevent the multiplicity or ab-
302
INTERNATIONAL LAW CODIFIED
sence of such citizenship, to adopt in common accord uniform
fundamental rules designed to reconcile both their legislative
autonomy and the individual's liberty to choose his home state,
the purpose being one of reciprocal utility in determining exactly
the citizenship of every one and bringing the municipal law into
harmony with the fundamental rules which ought to constitute
tbe "common” law of civilized states in the matter of citizenship.
666. The legislative autonomy of the sovereignty of every state
with respect to citizenship should consist in fixing the conditions
necessary to acquire, renounce, lose and reacquire citizenship,
without, however, violating the fundamental rules adopted by
common agreement.
It is well to note that citizenship is the basis of political, private and inter-
national rights, for political rights, public and civil, which under municipal
law are granted to citizens only, are founded on citizenship. Private rights
which are determined by the personal statute also depend on citizenship.
The same is true of international rights, which according to treaties are ac-
corded to the respective citizens of the contracting parties. It thus follows
that in order to prevent conflicts which may arise whenever the title of a
certain person to certain rights comes into question, it is necessary to establish
beyond controversy the exact citizenship of the person. At present, since
each state regulates citizenship by virtue of its own legislative autonomy,
without regard to the laws of other states, it may happen that a person is at
the same time a citizen of two states or of none at all. This lack of legislative
harmony results unavoidably in uncertainty in the status of persons and their
rights and in unfortunate conflicts with respect to the powers of a state as
regards individuals invested with the legal status of dual nationality.
RATIONAL RULES ON THE ATTRIBUTES OF CITIZENSHIP
667. States must regulate the acquisition and loss of citizenship,
admitting as a principle that no one may be without citizenship
or be a citizen of two states at the same time.
668. The imposition of citizenship upon individuals without
their express or tacit consent must be considered a violation of the
personal right of man freely to attach himself to a given state.
Illustrations of this are:
(a) A provision to the effect that persons born in the territory
of the state of foreign parents shall not have any other citizenship.
(6) A provision declaring as citizens persons residing in the state
in order to carry on their trade, although they manifest no inten-
tion of renouncing their citizenship and of acquiring that of the
state of residence.
INTERNATIONAL RIGHTS AND DUTIES OF MAN
303
(c) The grant of citizenship in the state to an individual marry-
ing a native woman.
[This is the law of Brazil. See Rodrigo Octavio in 6 Rev. de l'Inst. de Droit
Comp., 307–Transl.]
(d) The grant of citizenship in the state, the presumption of
consent being based on silence or a negative act when nothing
positive has been done implying tacit consent to acquire citizen-
ship.
(On imposition of citizenship by the Constitution of Brazil and statutes of
other Latin-American countries see Borchard, Diplomatic protection of citizens
abroad, § 232—Transl.)
(e) Any other form of imposing citizenship without express
manifestation of the will of the individual to that effect, or without
any rational presumption of consent on the part of a person not
in a position to manifest it, based on a proper interpretation of
the natural sentiments of the individual.
(f) The grant of collective citizenship to all the inhabitants of a
country conquered or voluntarily ceded, without properly guaran-
teeing them liberty of election to retain their citizenship or making
the right of election illusory and onerous.
The right freely to become a member of a state, as an essentially personal
right of man, must be respected and protected. Therefore, citizenship cannot
be imposed against the will of the individual and a change of nationality must
always follow a free manifestation of the will. Naturalization, accordingly, can
only be recognized when it is requested and obtained by virtue of a voluntary
act of the individual. Imposed citizenship cannot be considered as an acquired
citizenship. Individual initiative is always required.
669. The citizenship of the father shall be assigned to his legit-
imate child, wherever born, the child retaining that citizenship
unless, having full capacity, he requests and obtains citizenship in
another state.
670. The citizenship of an illegitimate child follows the citizen-
ship of the father, if the latter has recognized him, or that of the
mother if she alone has recognized it, provided that by the law
the father's country such effect follows recognition.
671. An individual born of unknown parents within the territory
of a state is a citizen of that state.
When, however, an individual registered as a citizen by reason
of birth of unknown parents is subsequently recognized by his
foreign father or by both a father and a mother of different na-
304
INTERNATIONAL LAW CODIFIED
tionalities he shall follow his father's status. If recognized by the
mother alone he shall follow her citizenship.
[As to the effect of illegitimacy on citizenship in U. S. see Borchard, Diplo-
matic protection of citizens abroad, $ 273-Transl.]
672. A woman marrying a foreigner loses her nationality and by
reason of her marriage acquires that of her husband. She has the
right to retain the nationality so acquired until the dissolution
of the marriage, and cannot acquire another, even after a legal
separation from her husband.
[See MacKenzie v. Hare, 239 U. S. 299-Transl.)
673. The wife and minor children of a man who has acquired a
foreign nationality and thereby lost his original nationality retain
their original nationality.
The wife shall be deemed a citizen of the husband's new country
only when she has freely and expressly declared her desire to follow
his status. The minor child shall retain his nationality unless,
having become of age under the laws of his native country, he
declares (as provided by that law) his desire to follow the status
of his father.
(As to the effect of naturalization of husband and father on a married
woman and minor child under the law of the United States, see Borchard,
Diplomatic protection of citizens abroad, Sg 264, 272 and cases there cited,
-Transl.]
674. There is a legal presumption that every person retains
his nationality of origin so long as it is not proved, under the law
of his country of origin, that he has voluntarily lost his original
citizenship and, under the law of the foreign country, that he has
duly become naturalized as a citizen.
The reasons upon which it seems to us the foregoing rules are founded are
developed in our works, namely: Fiore, Diritto internazionale privato, 4th ed.
(Turin, Unione Tip.-Editrice, 1902, v. 1, Leggi civile, Parte speciale, chap. III.)
See also the French translation of Ch. Antoine and the Spanish translation
of Garcia Moreno; Fiore, Sulle disposizioni generali dell'applicazione e in-
terpretazione delle leggi (Naples, Marghieri, 1890), v. II, chap. XI; Della citta-
dinanza in rapporto alla legge personale.
The rules concerning minor children and married women are designed to
prevent the citizenship acquired by them by reason of birth or marriage from
being altered by the will of the husband or father and to establish the principle
that the status civitatis is a personal right of every one, of which he or she alone
has the right to dispose, provided he or she has legal capacity.
On questions of citizenship under the Italian civil law, see: Fiore, Diritto
INTERNATIONAL RIGHTS AND DUTIES OF MAN
305
civile italiano; Della condizione giuridica delle persone (Naples, Marghieri, 1889),
title I: Della cittadinanza.
NATURALIZATION AND ITS EFFECTS
675. Naturalization voluntarily and lawfully obtained should
entail ipso jure ipsoque facto the loss of the prior citizenship and
the acquisition of the new. A change of the personal statute
begins from the time naturalization has been legally perfected
under the law of the naturalizing country.
676. The change of personal statute can have no retroactive
effect; hence the respective authority of the law of the original
and of the new country should be determined in accordance with
the principles of transitory law. .
677. A concession of the power to exercise civil rights on an
equality with citizens of the country, granted by act of the Exec-
utive, is not the equivalent of naturalization. It is always neces-
sary, in order to admit a change of the personal statute, that the
foreigner be assimilated to the citizen with respect to the enjoy-
ment of civil rights and, at least partially, of political rights ac-
corded to citizens.
1 A
Under the laws of certain countries in which foreigners are not treated like
citizens with respect to the enjoyment of civil rights, these rights are granted
them by act of the executive. By article 13 of the French Civil Code, as
amended by the law of June 26, 1889, the enjoyment of civil rights is granted
to the foreigner who is authorized by decree to establish his residence in France.
Undoubtedly, this concession does not produce the effects of naturalization.
It is a temporary one, and is good for five years only, after which time it be-
comes void if the foreigner has not applied for and obtained his naturalization.
It is evident that the decree above mentioned cannot produce a change of
personal statute, for the foreigner who obtains the decree in his favor is, during
the five years, in the same legal position as in Italy, where, by virtue of article
3 of the Civil Code the foreigner is granted the enjoyment of civil rights on the
same terms as the citizen. So, also, in England, the enjoyment of civil rights
or of some of them only (as, for instance, the right to acquire real estate, to
inherit and to dispose of property by will) was granted by act of denization,
the importance of which has decreased greatly since the law of 1870, when
foreigners were granted the exercise and enjoyment of property rights. The
denizen, according to the English law, is unquestionably not in the position of
a person who has obtained his naturalization and it cannot be said, therefore,
that his personal statute is changed. The same is true with respect to other
countries where, by law, the foreigner may be granted the indigénat as well
as the enjoyment of certain special rights, such, for instance, as that of casting
a vote in municipal elections.
Compare: Fiore, Diritto internazionale privato, 5th ed., 1903, v. I, 98 379 et seq.
306
INTERNATIONAL LAW CODIFIED
678. Naturalization may result from the voluntary or forced
cession of a part of the territory of a state to another state annex-
ing it. This is called collective naturalization.
679. Collective naturalization, like individual naturalization,
may become operative from the time the annexation has become
effective and real, and from the time the conditions stipulated in
the treaty of cession with regard to the retention and loss of origi-
nal nationality have been fulfilled.
Even in case of collective naturalization by reason of annexation, we must
respect the right of the individual to attach himself freely either to the annex-
ing state or to the ceding one, and of persons born in the ceded territory not to be
forced against their express or tacit desire, to change their nationality. It is,
therefore, essential to grant the inhabitants of the ceded territory the liberty
of electing to retain their original nationality by fixing a reasonable time limit
for exercising the right of election.
Compare: Fiore, op. cit., 88 382 et seq.
DOMICIL IN ITS RELATION TO CITIZENSHIP
680. Domicil cannot be considered sufficient in itself to attribute
citizenship to the person domiciled, especially when the require-
ments of business have caused his residence. It should, however,
be considered in accord with reciprocal interests to admit in prin-
ciple that one who establishes his civil domicil in a foreign country
without expressly declaring that he wishes to reserve his rights of
citizenship in his native country, should at the end of a certain
period (five or ten years at least) be held to be a citizen of the
state of his residence.
While the relations arising out of domicil and those arising from nationality
are of a different nature, yet since the actual population of a country is made
up of all the persons permanently resident and having there the centre of their
business and interests and since, therefore, domicil establishes certain bonds
between domiciled residents and the sovereign of the state, it must be admitted
that when this condition has subsisted sufficiently long to warrant the pre-
sumption of a desire to join the local population and abandon the country
of origin by manifesting an intention not to return, these circumstances may
be equivalent to a tacit renunciation of native citizenship and a tacit adoption
of the citizenship of the country of residence.
(This principle has not been adopted by Anglo-American law, although the
Department of State has adopted rules by which a loss of American protec-
tion follows long-continued residence abroad under certain circumstances; and
by the Act of March 2, 1907, in the case of naturalized citizens, residence of
two years in the native country or of five years in any other country, results
in a presumption of loss of American citizenship. See Borchard, Diplomatic
protection of citizens abroad, 88 326-330—Transl.]
INTERNATIONAL RIGHTS AND DUTIES OF MAN
307
Such effect should not be attributed to commercial domicil established for
business purposes, but it would be reasonable to recognize it in case of civil
residence.
See, Fiore, Diritto internazionale privato, 2d ed., 1874, Appendix, p. 552,
and 5th ed., v. I, § 58.
Under the law of the German Empire of June 1, 1870, art. 21, Germans
leaving the Empire and residing abroad for ten years without interruption lose
their citizenship. [This provision has been repealed by the German law of July
22, 1913—Transl.)
This principle is also recognized in the treaty of February 22, 1868, between
the North German Union and the United States, article 1 of which reads as
follows: “Citizens of the North German Confederation who become natural-
ized citizens of the United States of America and shall have resided uninter-
ruptedly within the United States five years, shall be held by the North German
Confederation to be American citizens, and shall be treated as such.
“Reciprocally, citizens of the United States of America who become natu-
ralized citizens of the North German Confederation, and shall have resided
uninterruptedly within North Germany five years, shall be held by the United
States to be North German citizens, and shall be treated as such. The dec-
laration of an intention to become a citizen of the one or the other country
has not for either party the effect of naturalization. . . .”[Malloy, Treaties,
etc., 1910, v. II, p. 1298.]
681. Domicil and even long-continued sojourn in a country with
the intention of remaining may be deemed sufficient to warrant
considering the domiciled person as a citizen, provided he belongs
to no particular state and is in the position of a man without a
country (Heimathlos).
The civil status of every person and the enjoyment of private rights must
be determined in accordance with the law of the country to which he belongs.
International law must eliminate persons without a country, the heimathlosen.
When a person cannot invoke the protection of his national law, it is reasonable
to consider him, even with respect to his civil status, as governed by the law
of the state of domicil
. [In Anglo-American law, the law of the domicil and
not of nationality controls civil status, for nearly all purposes-Transl.]
PROOF OF CITIZENSHIP
682. Whoever claims citizenship in a state must prove it by
the law of that state.
683. The proof of citizenship should be judged by the courts in
accordance with the rules enacted by the legislature for the de-
termination of citizenship.
684. The mere fact that a person establishes that he has ac-
quired citizenship abroad cannot be sufficient to prove the loss
of his original nationality before the courts of his original state;
308
INTERNATIONAL LAW CODIFIED
he must prove that the loss of citizenship was effected in accordance
with the laws of that state.
The purpose of this rule is to eliminate the inconveniences likely to arise
when a person who, incapable under his national law of acquiring foreign
citizenship, acquires it under the foreign law and afterwards claims in his
country of origin the enjoyment of rights granted him under the foreign law.
This would be the case of the foreign nationality acquired by a married woman
during marriage. Such an acquisition of citizenship undoubtedly could not be
considered as valid to effect a loss of the previous nationality and justify in
her original state the enjoyment of rights under the law of the state of which
the woman may have become a citizen. If these rights should be claimed be-
fore the courts of her original state, they could not consider her as a foreigner
if she had not, according to the law of that state, legally acquired foreign cit-
izenship.
This rule should apply even when the foreign nationality is acquired during
a judicial separation, which does not dissolve the marriage bonds.
RIGHTS OF MAN AS A CITIZEN
685. Any person who under the law of a state is considered a
citizen has the right to reside in that state and cannot be expelled.
686. It should be deemed contrary to the general interests of
the international society, in order to get rid of native offenders, to
sentence them to exile, banishment or deportation to a foreign
country.
Banishment or exile from the territory of a state and from its
colonial possessions can be justified only in case of political offenses.
Other states may always refuse to grant asylum to exiles and
may expel them, having them accompanied to the frontier.
687. Every citizen of a state is entitled to recognition as such
abroad, where he may demand that his status and his rights by
reason of his nationality be recognized and respected, unless their
exercise is contrary to the local laws of public order. He may
invoke the protection of his home state, according to the rules of
international law, in case of a harsh or arbitrary violation of his
rights.
688. It should be considered as a right of man qua citizen to
invoke the application of the treaties in force between his national
state and foreign states in all matters relating to the carrying on
of business and the enjoyment of private rights.
689. Any man who can prove his status as a citizen, may de-
mand that the law of his state be recognized in foreign countries
INTERNATIONAL RIGHTS AND DUTIES OF MAN
309
to establisb his personal statute and family relations, except where,
according to the local law, the enjoyment of certain rights is sub-
ject to the application of the law of the place of residence.
690. In a foreign country, no one can demand the recognition
of the authority of the law regulating his civil status, personal
statute and the enjoyment of the resulting rights, if the result of
the application of that law were a derogation from the territorial
laws of public order or the public law of the state.
Compare, for the development of the idea set forth in the proposed rule,
Fiore, Diritto internazionale privato, v. III, SS 1321–1326; the paper on the limi-
tation of the authority of foreign law in the Alti dell'Accademia di scienze
morali di Napoli, v. XXXVIII, 1907, and the article in the Journal du Droit
international privé, 1908, p. 351.
DUTIES OF MAN AS A CITIZEN
691. Every person who is actually the citizen of a state is bound
to fulfill the obligations of citizenship.
692. Every citizen must be considered bound to discharge the
civic obligations based on citizenship, such, for example, as war
contributions, forced loans, and military service. He cannot be
exempted therefrom during his sojourn in a foreign country.
693. The citizen who lives in a foreign country and fails to heed
a call by the government of his country to fulfill his military sery-
ice, is liable to punishment on his return to his native land; but
he cannot be compelled by the foreign government to comply with
that duty. In fact, it is not bound to lend its assistance to compel
the unwilling foreigner to serve in his native army.
694. A citizen should avoid any act liable to prejudice the inter-
ests of a foreign state, thus exposing his own country to a weaken-
ing of its friendly relations with that state.
It is within the power of every state to adopt the necessary
measures to prevent its good relations with foreign states from
being affected by the acts of private persons and to punish them
for injuries committed, in order to avoid any moral responsibility
attaching to unjustifiable indifference.
This rule may be applied where no real prejudice to the rights of a foreign
state subject to penal sanctions is involved, but where injury to interests
worthy of consideration comes into question.
Let us suppose that an association of speculators wishes to depreciate the
public funds of a foreign state and speculates on the fall of its securities brought
about by methods known to gamblers, and that a dishonest intent to carry out
310
INTERNATIONAL LAW CODIFIED
4
a fraudulent speculation is apparent. It seems to us that in this case the gov-
ernment should be bound to adopt the necessary measures to prevent the
foreign interests involved from sustaining damage.
The same would apply to an association which aims to bring about the failure
of an undertaking of public interest which a state has assumed. Although the
members of the scheme may not commit actual statutory offenses, if it is
established that they are acting in accord to carry out their dishonest purpose,
we believe that some preventive action of the government which desires to
maintain friendly relations with the foreign state must be considered as obliga-
tory by virtue of the moral duty of all states to co-operate for their reciprocal
well-being and prevent any act liable to entail serious and considerable injury
to a friendly state.
Without entering more deeply into the question, we may observe that our
rule should be understood with the moderation required by political prudence
and the art of government.
695. While abroad, the citizen should not degrade his character
and dignity as such. In the event of his committing grave offenses,
such as those subject to punishment restricting personal liberty
for at least three years, without having been tried by the courts of
the place where the offense was committed, or without having un-
dergone the punishment pronounced by those courts, he ought to be
prosecuted before the courts of his own country, so as to prevent
international and political damage arising out of his escape from
punishment.
Although criminal law has per se the character of territoriality in considera-
tion of the motives and purpose of criminal law, by reason of which it cannot
be regarded as personal law, yet the safeguard ºf general interests and of the
legal order may justify the punishment of the citizen who has committed an
offense in a foreign country and returns to his own without having expiated
the political damage resulting from the offense by undergoing punishment.
Compare: Fiore, Effetti internazionali delle sentenze penali, $ 33, Turin,
Loescher, 1877; Id., Traité de droit pénal international, trans. by Charles An-
toine, $$ 61 et seq., Paris, Pédone, 1879.
696. No person, even when he has renounced or incurred the
loss of his nationality, shall take arms against his native country;
he shall be held guilty of a felony and treason, if he does not
strictly observe this duty.
No civilized state can compel naturalized citizens to take arms
against their native country, nor urge them to commit an act of
treason.
INTERNATIONAL DUTIES OF MAN
697. No one may invoke the protection of international law or
claim the enjoyment and exercise of the rights belonging to all
INTERNATIONAL RIGHTS AND DUTIES OF MAN
311
individuals under international law unless he recognizes its au-
thority and complies with its rules.
698. Every individual, even when not the citizen of any particu-
lar state, is bound to observe the rules of navigation on the high
seas and must be held responsible for any damage caused by reason
of their non-observance.
699. Whoever, on the high seas is guilty of an act characterized
as an offense under international law, is bound to answer therefor,
and may be tried and punished in conformity with the rules of
international law. Examples of such offenses are piracy, damage
or destruction of submarine cables and their apparatus, of inter-
oceanic canals, and of works intended for the common use of all
states or the necessities of navigation.
LEGAL SANCTION OF THE INTERNATIONAL RIGHTS OF MAN
700. The international rights of man must be considered to be
under the collective legal protection of all civilized states. Any
attempt against the inviolability and liberty of man and against
the rights which are his according to international law, shall legiti-
mate the collective intervention of civilized states to restore the
legal order violated, complying with the rules previously formu-
lated and with those relating to the legal sanction of international
law which we shall set forth hereafter.
TITLE XXIV
INTERNATIONAL RIGHTS AND DUTIES OF THE
CHURCH
701. Those who voluntarily accept the principles of their
religious faith and have settled in different parts of the world
have the right to organize and to form as a church and to recog-
nize the supreme authority of the head of that church, who pro-
claims the principles of the dogma and faith and provides for the
government of their religious association.
The word church designates the association of worshippers spiritually united
by the same faith. It is the result of freedom of conscience. It is natural that
churches should differ, since the principles of belief and faith cannot be uniform.
Therefore, the liberty to organize and to form as a church must be recognized
and respected with regard to all persons who, inspired with the same faith,
voluntarily wish to unite as a religious association. The Roman Catholic
church exists in fact under very special conditions, but it does not exclude other
churches having different principles of belief and faith from being organized.
702. Any state hindering the free constitution of the church or
disregarding the autonomy or independence of its head in the
exercise of his spiritual authority over believers in the faith or
violating their freedom with respect to their faith and worship
lawfully practised, violates international law.
703. No church may claim the legal status of a person of the
Magna civitas unless its constitution and organization possess the
character of an international religious institution.
This character can be assigned to it only when it is an institution
constituted by virtue of freedom of conscience by a large number
of persons scattered over the world, united as a religious associa-
tion in the bond of a common faith and subject to the authority
of a head who admittedly has the supreme power to promulgate
the dogma and principles of belief, discipline and worship.
704. Any church, having at present the character of an inter-
national institution, has the right to demand the application of
the rules of international law for the enjoyment, exercise and legal
protection of its rights as a church.
312
INTERNATIONAL RIGHTS AND DUTIES OF THE CHURCH
313
ROMAN CATHOLIC CHURCH
705. The right to be considered a world institution and to as-
sume jure suo the status of an international person must be attrib-
uted at the present time to the Roman Catholic Church.
Just as certain circumstances of fact and law must be considered essential in
order that an association of men may assume the status of a state, so must
certain conditions of fact be deemed essential in order than an association of
worshippers constituted as a church may possess the character of an interna-
tional institution. Now, whatever may be thought of the constitution of the
Roman Catholic Church, as it is and as tradition and history have made it,
it cannot be contested that it alone among religions presents the characteristics
of a world institution.
Compare rules 70 and 71.
RIGHT OF AUTONOMY AND INDEPENDENCE OF THE POPE
706. The Pope, head of the Roman Catholic Church, in so far
as he exercises his supreme authority for the promulgation of the
dogma and principles of the faith to the believers who freely
consent to accept them, must be held autonomous and independent.
707. The Pope should enjoy the right of freedom of government
in all matters relating to the maintenance of the constitution and
the organization of the church and worship, limiting his action,
however, to the purpose of the church as a spiritual organization
and without power, directly or indirectly, to resort to coercive
measures.
FREEDOM OF GOVERNMENT
708. The right of freedom of government may be granted to
the Pope only within the limits of his legal sphere as determined
by the nature and purpose of his functions with respect to the
church considered as a spiritual association.
This liberty should consist in the free promulgation of the
principles of belief and faith with regard to those who voluntarily
accept them; in the publication of the precepts insuring the appli-
cation of those principles; in the establishment of the rules of
discipline and worship without recourse to coercive measures;
and in the unrestricted administration of the government of the
church,
314
INTERNATIONAL LAW CODIFIED
709. The rigbt of the Pope to communicate freely with the
clergy and persons exercising spiritual functions should be con-
sidered as embraced in the freedom of government, as well as the
convocation and assembling of synods and councils, the exercise
in canonical form of the ecclesiastical legislative power, and the
pronouncing of censures. Nevertheless, the right to request the
assistance of the political authorities against persons who, in-
stead of readily submitting to the orders of the church, prefer
giving up their religion, should be denied.
710. Persons participating in the high government of the church
or undertaking acts of spiritual power in its name, should be held
answerable only to the Pope; they cannot be held answerable to
the chief executive of the state except in the case contemplated in
rule 714.
711. Any interference by the government of the state in the
acts and high administration of the church shall be deemed unlaw-
ful and contrary to the principles of international law which in-
sure the autonomy and independence of the Pope.
LIMITATION OF THE RIGHTS OF THE POPE
712. The Pope as head of the church cannot be considered
qualified to acquire by succession like the sovereign of a state,
even in case of a legacy left to the congregations and offices
instituted by him for the exercise of spiritual power, unless, by
the law of the state where the succession takes place, the church
is recognized as a legal person.
The legal capacity to acquire property rights resides de jure in man, who is
the natural subject of private rights. This capacity is also possessed by the
state jure proprio from the time of its constitution, because as an institution
of social, civil and political order, it is necessarily a legal person. In effect,
considering the purpose of the establishment of the state by the people, it is
evident that by its very purpose, it is essential that it be possessed of property
and the capacity to acquire it. The church, having regard to its purpose, is
an institution of an ethical and moral order. The freedom of association of
the faithful under the authority of their supreme head must be considered as
an essential condition of its existence and development. Such liberty of asso-
ciation does not in any way, however, imply the liberty of incorporation. The
church may claim, as against all governments, the liberty to constitute and
organize itself and the enjoyment of all rights deemed essential to this end.
That is why it may claim international personality; but it cannot, as against
all governments, claim the right to acquire property rights.
Property is not indispensable to the church to fulfill its high mission. Even
INTERNATIONAL RIGHTS AND DUTIES OF THE CHURCH
315
admitting that it needs economic resources to exercise its administrative func-
tions, the possession of property cannot be considered indispensable; the charity
of the worshipper so generously practised under the form of Peter's pence is
sufficient. No one denies to the Pope the right to receive such bounties, and
to use them for the purpose intended. We do not admit that the church as an
institution is a necessary legal person. Therefore, the capacity to acquire,
by succession and by gift, property or real rights in the territory of the state can
be granted only by the territorial sovereignty which alone has the sovereign
power to confer on corporations, endowed with legal personality, the legal
power to acquire property rights.
Compare: rules 75, 76; Fiore, Della capacità dello Stato straniero, della Chiesa
e della Santa Sede di acquistare per successione, in Rivista di diritto internazionale
e di legislazione comparata, v. IV, 1901, p. 97; Id. Consultazione pro veritate,
Successione Zappa, Controversia tra la Grecia e la Romania, Rome, 1894.
713. The exercise of the administrative functions connected
with the government of the church, when their sphere of action
lies within the domain of municipal public or private law, is sub-
ject to the general law in force in the state where such functions
are exercised.
This rule aims to distinguish between matters connected with the govern-
ment of the church and the promotion of its spiritual interests and matters re-
lating to the administrative functions of the church. These administrative
functions must be subject to the laws of the state, whenever, by the nature of
things, they fall within the domain of public territorial or private law. The
independence of the government of the church cannot be considered as vio-
lated by reason of the fact, for example, that the congregations entrusted
with the administration of the Holy See, by the drawing of a contract which
afterwards gives rise to disputes in private law, thereby become subject to the
municipal law of the state and to the ordinary courts. A contract or any
private law relation cannot lose its character as such by reason of the partici-
pation of some one who has a part in the government of the church.
714. The Pope cannot, by virtue of his autonomy and independ-
ence in promulgating the principles of doctrine and belief, encour-
age the faithful to commit acts contrary to the laws of the state
or prejudicial to public interests.
It is the duty of the state, while respecting the inviolability of
the Pope, to subject to the laws in force and to the penal sanctions
of municipal law persons who, because of religious doctrine or
sentiment, commit overt acts contrary to the rights and interests
of the state.
The purpose of this rule is to determine the legal domain within which the
liberty of the Pope to undertake acts of government in canonical form can be
exercised. It is indisputable that the Pope should not be held responsible even
when he promulgates the rules of discipline imposed on the faithful who con-
sider themselves bound conscientiously to adopt those rules. Since, however,
the acts promulgated by the Pope in matters of discipline constitute for the
316
INTERNATIONAL LAW CODIFIED
faithful rules of conduct, if the ecclesiastical authorities intended through
those acts to encourage the worshippers to oppose the application of the public
law of the state and its ordinances with respect to civil or political matters,
this fact would naturally justify the latter in defending itself against the acts
of the ecclesiastical authorities. In the first place, it could forbid such acts
being brought to the knowledge of the worshippers by placarding the outside
of churches or otherwise prohibiting their publication. Furthermore, it could
subject to the criminal law persons who, by reason of the instigation of the
ecclesiastical authorities, have infringed the rights of the state.
715. The Pope cannot exercise any coercive jurisdiction, even
within the confines of the buildings assigned to the Holy See,
or any functions implying the exercise of powers of political sov-
ereignty.
The church cannot be likened to a state, nor may the Pope, as sovereign of
the church, be likened to a king as sovereign of the state. The two institutions
are essentially different. One is of an ethical and moral order—the church, in
fact, constitutes the union of souls spiritually bound by the same faith. The
character of the other is social and political. Therefore, it is evident that one
institution cannot be compared with the other and that the rights which belong
to the sovereign of the state cannot be claimed by the Pope as sovereign of
the church.
The Italian law of May 13, 1871, on the prerogatives of the Sovereign Pon-
tiff, assimilates the Pope to a sovereign by his personal inviolability, by penal
sanctions designed to prevent and punish attacks upon this inviolability and
by the sovereign honors conferred on him. Yet, as it does not imply the as-
similation of the two sovereignties, it cannot imply an equality of rights,
attributes and functions of the two sovereigns.
INVIOLABILITY OF THE POPE
716. The Pope should be considered inviolable and without re-
sponsibility for the exercise of his spiritual power and exempt
from the jurisdiction of the regular courts.
Compare rule 356.
717. It is incumbent on every state to repress by effective penal
sanctions not only every attack upon the person of the Pope, but
also offenses and insults offered him through speeches, acts or
other means which directly or indirectly offend him.
Non-compliance with this duty may justify collective inter-
vention.
RIGHT OF REPRESENTATION
718. The Roman Catholic church, which is to be considered as
a person of the Magna ciritas, has the power to exercise the right
INTERNATIONAL RIGHTS AND DUTIES OF THE CHURCH
317
of representation near the governments of states which have
agreed to enter into diplomatic relations with it. The exercise
of this right, however, is not identical with that exercised between
two governments.
This right should be exercised by persons who are entrusted
with that mission by the Pope.
It is to be observed that personality is one thing and the exercise and enjoy-
ment of the rights which attach to the person is another. The church as an
international institution, may assume jure suo the status of a person, but may
not as such enter into relations with a certain state and undertake in fact the
exercise and enjoyment of international rights with respect to that state ex-
cept with the previous consent of the sovereign.
Compare rules 165 et seq. and 438.
719. The right of legation which is possessed by the Roman
Catholic church is not identical with the right of legation of states;
the church, moreover, cannot claim to be considered a state by
reason of the exercise of that right.
The right of the head of the church to maintain direct relations with the
head of a state who has consented thereto is based on the principles of
public municipal and international law. Considering the frequent inter-
course between the ecclesiastical and the political authorities concerning
the carrying on of worship and the administration and external manifesta-
tion of religious functions, the sovereign of the state cannot be denied the
right to regulate such matters by agreement with the head of the church and
even, in appropriate cases, to conclude a concordat; nor is it possible to deny
the reciprocal right of the sovereign and the Pope to send one another diplo-
matic agents to regulate matters which have constituted the object of the
concordat or those with respect to which, without having concluded a con-
cordat, the two authorities desire to proceed in common accord.
All this may serve to explain the true character of the agents (nuncios,
legates, etc.), charged with maintaining friendly relations between the head of
the church and the sovereign of the state. It is apparent how, by reason of
the personal independence of the head of the church with respect to the exer-
cise of his supreme authority, the independence of the persons delegated to
represent him before the governments which have consented to receive them
must likewise be recognized. But in these matters there is no ground to as-
similate the church to the state in the exercise of the right of legation. The
diplomatic agents of the state represent the political sovereignty in the exer-
cise of its political functions and in its relations with a foreign government; the
diplomatic agents of the Pope represent the head of the church in the exercise
of his spiritual authority in so far as such authority may enter into relations
with the attributes and functions of the foreign government. Therefore, the
two things differ as completely as the state and the church: on the one hand,
political sovereignty and functions, on the other, spiritual authority and power.
720. The diplomatic agents of the Pope should everywhere be
considered under the protection of international law, so far as the
318
INTERNATIONAL LAW CODIFIED
respect due their public character and the liberty to fulfill their
mission are concerned.
They should enjoy the prerogatives and immunities attributed
by international law to diplomatic agents travelling through the
territories of third powers to reach the seat of their mission or re-
turn therefrom. In the state which has consented to receive
them as the Pope's envoys, they should enjoy the rights, priv-
ileges and immunities which are granted them by the law of that
state.
By article 11 of the Italian law of May 13, 1871, on the prerogatives of the
Pope, it is provided as follows: "Envoys of foreign governments to His Holiness
enjoy in the kingdom all the prerogatives and immunities of diplomatic agents
in conformity with international law.
"To offenses against them are extended the penal sanctions which apply to
offenses against the envoys of the powers near the Italian government.
"Envoys of His Holiness to foreign governments are assured in the territory
of the kingdom the customary prerogatives and immunities under the same
law, when proceeding to and returning from the place of their mission."
A careful reading of this article clearly shows the inaccuracy of the opinion
that the law of 1871 has accorded the right of legation to the Pope. His
right to maintain direct relations with the sovereigns of states which consent
thereto unquestionably does not grow out of the Italian law of 1871 and
would not be abrogated should that law be repealed. The maintenance of
diplomatic relations through agents vested with a public character is, with
respect to the foreign state wishing to maintain such relations, an act of sover-
eignty within the domain of its autonomy. What the foreign government
could not claim as of right would be that the agents sent by it and accredited
to the head of the church should enjoy in Italy the prerogatives and immunities
granted by international law to diplomatic agents. Moreover, the Pope
could not claim that his envoys be given in Italy the same prerogatives and
immunities when they proceed to or return from the place of their mission.
That is what article 11 of the above-mentioned law has granted.
INTERNATIONAL DUTIES OF THE CHURCH
721. Every church is bound to exercise all its rights and func-
tions within the legal limits determined by its nature and purpose
as an institution of a moral order.
722. It is incumbent on the head of the church and on the
ecclesiastical authorities who exercise the functions of government
assigned to them to refrain from resorting to any direct or indirect
external coercive measure to regulate and preserve discipline and
to refrain from requesting any kind of assistance from the political
authorities.
1
INTERNATIONAL RIGHTS AND DUTIES OF THE CHURCH
319
723. The head of the church violates international law and the
right of freedom of worship when, by previous agreement, he se-
cures the assistance of the political authorities to exercise his
spiritual powers.
This is the case also when the object of the previous agreement
between the two authorities is reciprocally to assist each other in:.
the enforcement of their respective powers.
RELATIONS OF THE CHURCH WITH THE STATE
724. The Roman Catholic church cannot claim any special
privilege or prerogative as against other churches, but only the
enjoyment of the international rights which it now possesses
in consideration of the special historical circumstances in which it
is placed with respect to other religions.
725. It is the duty of every state to consider the Roman Catholic
church as in the same legal position as any other religion in its
relations with municipal public law, and to regulate the legal posi-
tion of all churches so as to respect the right of freedom of worship
both as an individual and as a collective right.
Compare rules 650 et seq.; 701 et seq.
726. Every church, so far as the external development of its
functions and the exercise of worship are concerned, must be
deemed subject to the laws of the state where the religion is prac-
tised, and its relations with the sovereignty of the state must be
considered within the exclusive domain of public municipal law.
727. Every state must insure full liberty to the ecclesiastical
authorities in the fulfillment of their duties and refrain from annoy-
ing them or subjecting them to investigations or to censure in the
matter of the promulgation of dogma, the rules of discipline, the
administration of sacraments and religious acts performed with-
out prejudice to the rights of the state.
728. Every state must be considered bound to abolish any
special restriction upon the exercise of worship and the powers
possessed by the head of the church. Any interference of the
political authority, under the form of governmental assent, in the
publication of the acts of the ecclesiastical authority or in the
exercise of the powers of the Sovereign Pontiff, must be considered
as a violation of the independence of the church.
320
INTERNATIONAL LAW CODIFIED
729. The exercise of the powers of the head of the church and
the sovereign of the state in their reciprocal relations must be
considered as based on the essential concept of their respective
liberty and of the complete separation of the two institutions, ex-
cept as to the exact determination of the legal sphere within which
the autonomy and independence of the two sovereignties must be
acknowledged.
730. The rules which serve to determine the relations between
the political and the ecclesiastical power, so far as the exercise of
their respective rights and duties is concerned, may be the object
of a concordat concluded between the sovereign of the state and
the head of the church, in conformity with the constitutional law
of the state and with the rules of international law.
731. The concordat cannot be likened to a treaty between two
states. It must always be deemed an act governed by public
municipal law. Consequently, it remains in force until repealed.
If, however, the prerogatives of the church and of the Pope under
international law should be recognized in the concordat, and it
should then be repealed, the church and its head could nevertheless
claim their prerogatives according to international law, which
must be deemed independent of concordats.
LEGAL PROTECTION OF THE RIGHTS OF THE CHURCH
732. The international rights of every church should be con-
sidered under the collective guaranty of all the states which con-
stitute the de facto society. Differences which may arise between
the Pope and the sovereign of any state in the respective exercise
of their reciprocal rights should be settled in the forms to be in-
dicated hereafter for the determination of international disputes.
As to differences which may arise from the exercise of the re-
spective rights within each state, they must be considered within
the domain of public municipal law.
In order to explain the basic idea of this rule, we would observe that, being
unable to disregard the historic fact that the Roman Catholic Church has at
present the position of an international institution, or to dispute the right
which it possesses as such to be considered an international person, although
not a state, we have reached the conclusion that the church has international
rights, which we have had to determine. These rights are quite distinct from
those which it may possess as a religious association and as a corporation.
They must be determined and governed by municipal law. It must be said
INTERNATIONAL RIGHTS AND DUTIES OF THE CHURCH
321
that the church cannot, unassisted, insure the observance and protection of its
rights; for it has not the powers and means which the state has at its disposal to
protect itself. The partisans of the claims of the papacy, who have upheld the
need of temporal power, have alleged that the church ought to constitute a state
in order to be independent and to provide for the protection of its rights in the
same manner as the state. It seems to us, however, that this conception is
inspired by a sophism tending to confound the two powers and to misrepresent
the two institutions. The legal protection of the rights of the church may be
achieved through the collective guaranty of civilized states. Every state,
whether Catholic or not, must protect with solicitude the freedom of worship
of its citizens. Catholics are not found in any one country; they number
millions upon millions scattered throughout the world. Therefore, all the
states of Europe, America and other parts of the world are bound to protect
the freedom of religious belief of their Catholic citizens, and have the right and
duty to prevent the freedom of their religious faith from being violated, not
only as an individual but as a collective right, in so far as all persons united by
the same faith belong to the Roman Catholic church and are subject to the
supreme authority of the Pope who represents that church. Any attack
upon the autonomy of the church and upon the independence of the Pope and
the free exercise of his rights as head of the church is an attack upon the church
itself and upon the freedom of worship of the persons who constitute it.
Therefore, it is incumbent on every state, which must safeguard the per-
sonal rights of man, including that of freedom of conscience, to prevent the
violation of these rights. Collective intervention to assure the autonomy and
independence of the Catholic Church as a spiritual institution arises, therefore,
reasonably as a right and duty on the part of all states to protect the right of
freedom of worship. All must consider themselves equally interested in
maintaining the political sovereignty of each country within the field of its
own rights, by preventing its taking undue advantage of those sovereign
powers to violate rights which, according to international law, belong to the
Roman Catholic Church.
Conflict between the two institutions cannot always be avoided, but may be
solved like any other international difficulty by peaceful means, namely, good
offices, mediation of friendly powers, and finally, arbitration or other means
admitted by international law, of which we shall speak hereafter. The Pope
ould not declare war, as the church is not a state; but he can be more effi-
ciently protected, so far as the exercise and enjoyment of the rights he possesses
under international law are concerned, through peaceful means.
BOOK TWO
INTERNATIONAL OBLIGATIONS
TITLE I
GENERAL AND FUNDAMENTAL RULES
733. International obligations arising between one state and
another are derived from treaties, acts (cartels, manifestos, dec-
larations, etc.) and facts which imply and involve international
effects and relations voluntarily created by those exercising sov-
ereign power.
734. States alone, by express or tacit consent, may assume to-
ward one another the obligation to give, to do or forbear from
doing a particular thing; to regulate or to limit the exercise of
their respective rights; or to annul or to modify the obligations
previously assumed.
735. Every obligation contracted by one state toward another
produces a legal duty of the obligor to carry out his undertaking,
and a legal right of the obligee to demand and exact its fulfillment.
The object of the above rules is to establish the nature and true character
of an international obligation and to determine its subjects.
The international obligation, unlike that which may exist between private
persons in civil and commercial matters, is, by reason of its nature and object,
a political and public obligation. Whether it produces engagements and
rights of the nature of property, or is designed to regulate and limit the exer-
cise of the respective sovereign rights, it always implies an engagement con-
tracted by the state, as a political person, towards one or more states, with
which it has intercourse in international society.
Engagements of a property or fiscal nature affect the economic life and finan-
cial interests of the state as a person, and do not distinctly burden the individ-
uals who compose the state, but rather the political community considered as
an universitas: Quod debet universitas singuli non debent and quod universitas
debetur, singulis non debetur.
It follows, therefore, that the proper subject of an international obligation,
even when it consists in the obligation to give, to do or forbear from doing, can
only be the state as a political institution.
The same is true of obligations which may arise from facts involving in-
ternational effects and relations, because it is evident that the st ite alone as
an universitas can assume the responsibility arising out of the exercise of sov-
ereign powers in international relations.
Obligations which seek to regulate or limit the exercise of reciprocal rights
of sovereignties can be contracted only by states. They alone by reciprocal
agreement can establish particular rules of their respective relations and
325
326
INTERNATIONAL LAW CODIFIED
pledge themselves to subject their acts to the particular legal rules adopted
in common. Thus, through reciprocal agreement states may recognize the
binding force of any particular legal rule by assigning to it the authority of
“common” law.
It is evident, therefore, that the state alone may contract an international
obligation, and that, accordingly, it alone may be considered as a subject
capable of concluding an international treaty.
One of the arguments invoked by authors who have firmly upheld the
aphorism that the state alone may be deemed the subject of international law,
is that it alone can conclude a treaty. But this argument is of questionable
value if we take into consideration the fact that the capacity of every one is
determined by his legal status. We also admit that the state alone can con-
tract a true international obligation; but that is not at all inconsistent with
what has been said in Book I, with respect to the persons and entities subject
to international law and is explained by the simple consideration that the
state alone may be regarded as capable of so contracting. We must repeat
that the legal capacity of every one depends absolutely on his legal status,
and recall that while we have admitted that man and the church are persons
of the international society, we have, on the other hand, always maintained
that their legal status is substantially different from that of the state. Accord-
ingly, the unquestionable conclusion is that their capacity must also be differ-
ent. It is clear, therefore, why the state alone may sign a treaty and assume
international obligations.
The international obligation, being inherently political and public, can be
created only by the state, which is a political and public institution.
736. Express or tacit consent is the basis of every positive obli-
gation contracted by one state toward another.
This rule must be understood in the sense that, through reciprocal consent,
states may assign the authority of law to rules agreed upon and not in the sense
that their reciprocal consent may be sufficient to create an obligation. The
sovereign power to create an obligation by consent is limited mainly by the
legality of the subject-matter and by the substantial requirements for the
validity of the consent.
See rules 760 et seq.
737. Two or more states which, by words or acts equivalent
to words, have manifested the agreement of their wills to establish
or modify their respective rights or to regulate, annul or limit a
legal relation subsisting among them, must be considered as re-
ciprocally bound by reason of their consent, expressly manifested,
to observe their engagements.
738. Every state which, in its relations with another, has volun-
tarily observed a constant rule of conduct in a series of acts, un-
equivocal, uniform, notorious, continuous and in conformity with
international law, is to be held bound, by tacit consent, to adhere
to that rule of conduct so long as it is not expressly disavowed, or
events arise which prevent its observance.
GENERAL AND FUNDAMENTAL RULES
327
739. No consensual obligation should be held valid if contrary
to a rule of international "common” law.
740. Every state must be considered legally liable, by reason
of its international responsibility, for all the consequences of in-
juries inflicted, in the exercise of sovereign powers, upon a foreign
state or private individual.
DIFFERENT FORMS OF OBLIGATIONS
741. Consensual obligations between states are bilateral or
unilateral.
By the former, the contracting parties reciprocally obligate one
another.
The unilateral obligation is one contracted by a state towards
one or more states, without the assumption of a corresponding
obligation by the latter.
742. All obligations contracted by states may be divided into:
a. Positive or negative;
b. Simple or conditional;
c. Joint or alternative;
d. Principal or accessory;
e. Binding or optional;
f. Divisible or indivisible;
g. Of definite or indefinite duration.
743. The substance of an obligation, having regard to its nature,
must be determined according to the general principles of "com-
mon" or natural law, in so far as a similarity between the obliga-
tions contracted by private persons and by states may be admitted.
Although the general principles of “common” and natural law relating to
consensual obligations and to their nature and consequences cannot be ma-
terially different from those applicable to obligations contracted by states,
it would nevertheless be a mistake to admit of a complete similarity between
civil and international obligations.
TITLE II
TREATIES AND THE CONDITIONS FOR THEIR
VALIDITY
TREATIES IN GENERAL
744. Any convention between two or more states, drawn up
in writing and concluded with a view thereby to create an obliga-
tion or to annul or modify one already subsisting, is called a treaty.
745. Treaties may be divided into named and unnamed.
The former are those which by international law are designated
by a particular name, derived from the subject matter of the
agreement. Such are treaties of commerce, territorial cession,
extradition and the like.
Unnamed treaties are those concluded for different objects, not
subsumed under a specific name, but which, nevertheless, affect
certain political or social interests of states. They are more com-
monly called conventions.
746. Whatever the denomination of a written act concluded
by the sovereignty of the state to declare its will to bind itself, the
resulting international obligation with all its effects should be
considered as subsisting whenever the act complies with the sub-
stantial conditions necessary to its validity.
In practice written acts containing agreements between two or more states
are sometimes called either treaties, conventions, declarations, cartels, or
protocols, etc. These various names, however, do not alter the substance,
because the desire to bind oneself may be valid whatever the act be called.
According to the commonest usage, the term treaty is applied to the more
important acts, for example, those relating to commerce and navigation; and
the term convention to the less important acts, such as agreements for the
publication of customs tariffs, for the exchange of parcels post, and for the
regulation of the transportation of merchandise by railroad, etc. The term
declaration, or simple agreement, designates conventions relating to particular
objects, such as the interpretation of the articles of a treaty, or the engagement
to communicate reciprocally certain acts (acts of civil status, information
service, etc.)
328
TREATIES AND THE CONDITIONS FOR THEIR VALIDITY
329
REQUIREMENTS FOR THE VALIDITY OF A TREATY
747. The conditions necessary to the validity of a treaty are:
a. The capacity of the parties;
b. Reciprocal consent, legally expressed;
c. A lawful and attainable object, according to the principles
of international law.
See our work: Trattato di Diritto internazionale pubblico, 4th ed., v. 2; Con-
dizioni intrinseche per la validità di un trattato, pp. 273 et seq.
CAPACITY TO CONCLUDE A TREATY
748. Any state which enjoys rights of sovereignty must be
deemed capable, in principle, of concluding a treaty and thus
contracting legal obligations and acquiring rights with respect to
the other contracting party, subject, however, to the limitation set
forth in rule 739.
This capacity, furthermore, may be possessed by associations
to which international personality has been attributed (see rule
81) within the limits, nevertheless, of the purposes for which per-
sonality was recognized and is considered as subsisting.
The International Congo Association, to which international personality
was attributed for the limited purpose for which it was formally recognized, was
regarded as capable of concluding treaties, and has concluded several, including
one with Italy, December 19, 1884.
The Customs Association of the German States, known as the Zollverein
had the power to and did conclude, in its own name, several treaties, until it
lost its international personality by the establishment of the German Empire.
749. The power to conclude treaties may be attributed to
states not fully possessed of international personality, when, by
the constitutional law governing their union, this power is re-
served to them for certain specific objects.
It is always necessary to refer to the constitutional compact which governs
the union of two or more states and their relations of protectorate or vassalage,
to establish their capacity to conclude treaties and the limitations on their
capacity.
Semi-sovereign states sometimes have the power to conclude treaties which
have neither the nature nor the character of political treaties, such, for ex-
ample, as conventions relating to the postal service and transportation by
railroads. Bulgaria, which, under Article 8 of the Treaty of Berlin of July 13,
1878, was not capable of concluding treaties of commerce and of a political
character without the previous consent of the Porte, nevertheless, on June 11/
330
INTERNATIONAL LAW CODIFIED
23rd, 1893, concluded a treaty with Greece to regulate the question of the
nationality of Greeks living in the principality. In like manner, in order to
determine the competency of Egypt, it is necessary to examine its relations
with Turkey, so as to determine within what limits it may conclude treaties
with foreign states.
750. In a state, constituted under the form of a federated state
or of a confederation, the power of the individual states to con-
clude treaties must be determined by their international person-
ality, as fixed in the constitutional compact.
A federative union or confederation of several states may sometimes give
rise to an international personality based on the title of the union and distinct
from the international personality of the states united as a confederation.
Such was the case with the former Germanic Confederation, which had its
legal personality as such and could conclude treaties concerning matters of
general interest to the confederation, as it had been created by the final act
of the Congress of Vienna of 1815. This international personality possessed
by the confederation permitted that of the constituent states to subsist and
with it the capacity of each to conclude treaties within the limits of its own
jurisdiction.
>
PERSONS COMPETENT TO CONCLUDE TREATIES
761. Only persons having the power to negotiate and conclude
a treaty under the constitutional law of the state should be deemed
competent to negotiate a treaty in the name of the state.
752. When, by the constitutional law of a state, the Executive
is given the power to negotiate treaties, reserving to another gov-
ernmental body a final assent to their definitive conclusion, the
rules of the constitution govern the competency of the various
parties in the conclusion of treaties.
According to the constitution of the Kingdom of Italy, Article 5, the King,
as chief executive, is competent to conclude treaties of peace, alliance and
others, with the single obligation that he must notify Parliament. As to
treaties involving financial burdens or changes in the territory of the state,
they become effective only after their approval by Parliament. Therefore,
the King may conclude a treaty of navigation, but commercial treaties, which
necessarily have financial consequences, can become valid only after their
approval by Parliament.
In Germany, under Article 11 of the Constitution of April 16, 1871, the Em-
peror represents the Empire in its international relations and concludes with
foreign states treaties of alliance and others in the name of the Empire. If,
however, the treaties refer to objects which, according to the provisions of
Article 4, are within the sphere of legislative competence of the Empire, the
assent of the Federal Council (Bundesrat) is required for their conclusion and
the ratification of the Reichstag for their validity.
It is clear that under this article, the Emperor cannot alone assure the
TREATIES AND THE CONDITIONS FOR THEIR VALIDITY
331
validity of treaties of commerce, customs and those relating to the other ob-
jects specified in Article 4 of the Constitution.
Compare: Fiore, Trattato di Diritto internazionale, § 1019.
753. Plenipotentiaries may be considered as properly delegated
to represent the state to negotiate and conclude a treaty, when
they are provided with official full powers, conferred upon them
for that purpose. They should be exhibited to the other party,
who should take cognizance of them. Conventions concluded
within the limits of the full powers officially exhibited should be
regarded as legally concluded.
754. Secret instructions given to the plenipotentiary delegated
to conclude a treaty cannot have any legal force to modify in its
international effects the full powers officially communicated to the
other contracting party.
In case the plenipotentiary has concluded a treaty within the
limits of the full powers exhibited, but contrary to the secret
instructions of his government, he would incur personal responsi-
bility to his government, which might justifiably punish the de-
linquency in conformity with its municipal law, but could not affect,
in any way, the legal value of the international obligation con-
tracted by virtue of the instructions contained in the full powers of
its agent.
RATIFICATION OF TREATIES
755. Ratification must be considered essential to making a
treaty final and perfect:
a. When required by the constitutional law of the state to make
the treaty binding upon it;
b. When the plenipotentiaries who negotiated and concluded
the treaty have made its validity dependent upon its rati-
fication by the sovereign they represent or by the proper
authorities.
Outside of these cases a treaty concluded by a plenipotentiary
and signed by him without reserving ratification, by virtue of the
full powers conferred on him and duly exhibited to the other party,
and within the strict limits of his powers, must be considered as
final and perfect from the day of its signature.
Ratification cannot be considered an essential condition of the conclusion
of a treaty when, under the constitutional law, the sovereign has the power to
332
INTERNATIONAL LAW CODIFIED
conclude it. There is nothing in that case to prevent the sovereign, as chief
executive of the state, from delegating his power to a plenipotentiary by con-
ferring on him the right to definitively conclude and sign his name to the
treaty. A treaty executed under such circumstances, so far as the interna-
tional obligations contracted by the chief executive of the state are concerned,
must, independently of ratification, be held perfect and final for all purposes
as between the contracting parties.
If, as is the case under the Italian constitution, the head of the state may
conclude certain treaties, on condition of notice to the legislative bodies, that
formality should be deemed one of mere municipal public law. Therefore,
treaties of that category, concluded by a plenipotentiary vested with full
powers of concluding them independently of the sovereign's ratification,
ought to be regarded as perfect and final as an international obligation. Even
if the chief executive should fail to give notice of such a treaty to the legisla-
ture, the result would be that within the state the treaty could not be consid-
ered to possess binding legal force, by reason of the absence of a constitutional
formality. But it would not lessen in the least the legal value of the treaty
with respect to the foreign state and might involve the international re-
sponsibility of the government for having failed to do what it should have
done to make the treaty binding on its citizens.
The case is quite different when, under the constitution, the head of the
state is not qualified to conclude the treaty without the consent of the legisla-
ture. In such case, as the other contracting party must know the power of
its co-contracting party, it cannot consider the approval of the legislature as a
question of public municipal law, but a condition indispensable to the legal
value of the treaty. In the absence of this condition precedent there is no
treaty, nor do the international obligations created therein by the chief ex-
ecutive exist, for the reason that the latter had the power to enter into an
obligation only with the consent of the legislature.
In practice treaties concluded by plenipotentiaries become binding between
the contracting parties from the day of the exchange of ratifications. This prac-
tice, however, does not preclude treaties of the first category from being con-
sidered final and perfect independently of ratification, when such reservation
of ratification is not stipulated in the full powers, or was not made by the
plenipotentiary in the protocol of signature.
CONSENT REQUIRED FOR THE VALIDITY OF A TREATY
756. Treaties concluded between states must be freely assented
to. Assent is not valid if given by mistake, extorted by violence
or obtained by fraud.
757. The consent cannot be considered as lacking freedom when
the treaty is assented to under pressure of a hostile power
which has occupied part of the state territory, threatening the
invaded state with greater disaster if the proposed conditions
should not be accepted.
In laying down this rule we do not mean to say that any condition whatever
imposed by the victor on the vanquished and accepted in a treaty should be
1
TREATIES AND THE CONDITIONS FOR THEIR VALIDITY
333
considered as freely assented to. It is necessary in that respect to apply the
rules relating to treaties of peace and the lawful subject-matter of conventions
between the victor and the vanquished. We do say, however, that when a
party, taking advantage of its right to resort to armed force to compel an ad-
verse party to give, to do or refrain from doing, or to recognize a disputed
right, has occupied the territory of the enemy in order to compel the latter to
recognize, against its will, the disputed right, or to make amends for an offense,
and has imposed on the vanquished, with that end in view, the obligation to
sign a treaty, the fact that the latter has consented to such signature merely
for the sake of avoiding greater calamities cannot, in itself, constitute sufficient
ground for invalidating the treaty on the pretext that the vanquished lacked
full liberty of assent at the time of signature.
758. Duress resorted to by one party to a treaty against an-
other is a ground for nullity only when it constitutes true physical
violence, or when the person who signed the treaty was compelled
to do so through external constraint which deprived him of all de-
liberation and freedom of judgment.
Such would be the case of a treaty concluded by a sovereign fallen into the
power of the enemy and constrained to sign it by means of bodily violence or
by reason of measures calculated to inspire him with a justifiable fear,
759. Fraud may be deemed a ground for the nullity of treaties
only when the fraudulent methods resorted to by one of the parties
were such as to mislead the other party as to the object of the
convention.
This rule finds its application in the case of treaties concluded by a plenipo-
tentiary possessing absolute and full powers, with faculty to conclude finally,
without necessity of ratification. Diplomatic devices resorted to by a party,
even if such that the other party without them would not have signed the
treaty, would not in themselves constitute a ground for nullity. The rules of
the civil law relating to the validity of obligations and to the defects of consent
cannot be fully applied to international treaties. Indeed, these acts, while
consensual conventions, can not be subject to the same rules as consensual
contracts between private persons, because the general interests of mankind
require that treaties be respected, and the rules relating to duress, fraudulent
devices and mistake as causes vitiating consent in contracts between private
persons experience important modifications in the case of international con-
ventions concluded between states.
LAWFUL SUBJECT-MATTER OF TREATIES
760. No state may by a treaty engage to do anything contrary
to positive international law or to the precepts of morals or uni-
versal justice. No state may by treaty absolutely renounce its
fundamental rights, enumerated in rule 62.
761. A lawful subject-matter of contracts between states should
334
INTERNATIONAL LAW CODIFIED
1
be considered to be only such as concerns the public interests
of the state and may be regarded as within the conventional
power of the contracting parties, according to the principles of
“common” law.
762. An engagement which violates, to the injury of another
state, an obligation previously contracted by treaty with one of
the parties, cannot constitute the object of a convention.
763. Anything implying a violation of the constitutional law
of either contracting party cannot constitute a lawful subject-
matter of a treaty. But a subject-matter not in harmony with the
municipal law of one of the contracting parties may be covered
by a treaty, provided the contracting party has not conditioned
the legal force of the treaty upon a change in its municipal law.
The sovereign of a state cannot be regarded as competent to violate the
constitution, and since the other party ought not to be ignorant of the consti-
tutional law of the state with which it is negotiating, it is impossible to con-
sider as the lawful subject-matter of a treaty anything directly opposed to the
respective constitutional law of the contracting states.
As the laws in force may be amended when not contrary to constitutional
law, a treaty cannot be considered void on the ground that the law in force is
an obstacle to the fulfillment of the engagements contracted. It is for the
government to decide, with political foresight, whether it may rely on the
enactment of legislative changes necessary for the execution of the treaty
subscribed. Undoubtedly, if it had made the validity of the treaty conditional
upon anticipated changes in its municipal legislation, it would be bound to do
everything in its power to obtain from the legislature the necessary amend-
ment of its municipal law. If, on the contrary, without political foresight, the
government bad concluded a treaty promising the legislative amendments
required for its execution and if it then transpires that the legislature refuses
to amend the laws in force, the state would incur a double responsibility, that
is to say, political responsibility of the government to the representatives of
the nation and international responsibility to the other contracting party.
The political responsibility would raise a question of public municipal law; and
when the head of the state, notwithstanding its opposition to municipal legis-
lation, declares the treaty executory, the municipal courts of the state are not
bound to give it effect. If, however, he fails to declare the treaty executory
by reason of its opposition to municipal legislation, he incurs international
responsibility for having contracted with another state an obligation he was
unable to fulfill. The treaty, considered as a convention between states, can-
not become null and void because the executive of one of the states could not
obtain from the legislature the promised amendment of municipal legislation,
by which promise he engaged his international responsibility for having con-
tracted without reservation an engagement which afterwards he found him-
self unable to fulfill.
>
TREATIES AND THE CONDITIONS FOR THEIR VALIDITY
335
EXTRINSIC REQUIREMENTS, INCLUDING FORM
1
764. International treaties should be drawn up in writing, and
do not acquire perfect form until they have been subscribed by all
the parties to them.
765. An agreement upon certain articles of a treaty, even when
drawn up in writing and signed by the contracting parties, cannot
be considered a perfect reciprocal obligation with respect to the
clauses adopted, independently of the final conclusion and signa-
ture of the treaty.
When, however, the clauses agreed to and subscribed are con-
sidered as a preliminary convention, concluded in order to estab-
lish the reciprocal obligations of a status quo, they should be re-
garded as perfect and valid until the conclusion of the final treaty
or of a formal declaration that the parties consider themselves
freed from any previous engagement.
766. When, in the negotiation of a treaty, a reciprocal agree-
ment is reached on various distinct points, principal or accessory
but related, and this agreement has been drawn up in writing and
signed by the contracting parties, the engagements assumed do
not acquire binding legal force until the treaty is finally concluded
and agreement established on all the separate parts which con-
stitute the treaty as a whole.
767. The form of the reciprocal agreement concluded between
the contracting parties may vary according to the degree of im-
portance of the object of the convention. We may, therefore, con-
sider as sufficient a diplomatic exchange of two declarations
written and subscribed by persons duly authorized, or of two
cartels, notes, or manifestos, properly subscribed.
768. An agreement relating to particular matters concluded by
persons competent to contract international obligations will be
valid, even though not drawn up in writing, but concluded verbally,
on condition, however, that the agreement may be proved without
difficulty, and that evidence thereof may be readily adduced.
This rule may find its application in case of preliminary agreements in time
of war concluded by persons duly authorized; although concluded verbally,
they must be regarded as binding as written conventions.
1
TITLE III
LEGAL FORCE AND EXECUTION OF TREATIES
INVIOLABILITY OF TREATIES
769. International conventions duly concluded between the
parties have the same authority as law and must be held inviolable.
They cannot be revoked except by mutual consent of the parties
or for causes determined by international law, ascertained and
recognized as having force to that end.
770. Every treaty binds the parties, not only with respect to
matters formally promised by each, but also incidental matters
which, according to equity, usage and the rules of international
law, must be considered as virtually included in what was prom-
ised.
771. An impairment of or injury to moral and economic interests,
which may result from the faithful execution of a treaty duly con-
cluded, cannot be a sufficient reason for not observing it (compare
rule 778).
Every government should be thoroughly aware of the obligations it con-
tracts, and if it should inadvisedly have consented without sufficient infor-
mation, it ought to bear the consequences of its imprudence, without disavow-
ing the authority and violating the obligations of the treaty on the pretext of
injury to the interests of the state and possible damage to itself.
Compare rules 787, 833 and 834.
772. Every valid treaty gives rise, not only to a perfect right
on the part of either party of exacting the fulfillment of the as-
sumed obligations, but also to a right to prevent third powers
from meddling in the agreement or from placing any obstacle in
the way of its faithful execution.
.
EFFECTS OF TREATIES
773. A treaty takes effect only from the time it can be consid-
ered legally perfect.
774. When ratification is necessary to the legal existence of a
336
LEGAL FORCE AND EXECUTION OF TREATIES
337
treaty, duly concluded and signed (see rule 755), it shall take effect
only after ratification.
Nevertheless, the contracting parties may stipulate that when
the treaty is ratified, its effects should relate back to the time of its
signature. But this requires an express declaration.
775. International conventions must, in principle, be consid-
ered as having effect over all the territory of the state and be re-
garded as extending actively and passively to all its dependencies,
unless a contrary conclusion may be drawn either from a special
clause in the convention, from the nature of the treaty itself or
from the general principles of “common” law.
This rule may help to solve the problem of determining whether treaties
concluded by a state should extend to its colonies, to its possessions abroad
and to the provinces that it may have annexed since the conclusion of the
treaty. For that purpose, it is necessary to refer to the convention itself and
to consider whether it was concluded with or without reservation as regards
colonies, possessions or annexed provinces, and to examine the form of the
constitution of those colonies or possessions and the nature of their union with
the state which has concluded the treaty.
776. Every treaty must have full effect, even when some change
takes place in the form of the government or the internal constitu-
tion of the state, except as this may be modified by rule 836.
It must be regarded as valid with respect to the state in whose
name it was concluded, so long as the international personality of
that state subsists.
777. Treaties legally and validly concluded by the sovereign
of the state transmit their obligations upon the state, actively and
passively, to whomsoever succeeds by universal title to the rights
of sovereignty, in conformity with the rules which govern cessions
and annexations.
778. Treaties concluded to regulate matters of public or social
interest to the contracting states extend their effects to legal rela-
tions which arose before their conclusion, save in the case of an
express declaration to the contrary.
When, however, the application of a treaty to legal facts or
relations prior to its conclusion would result in injury to or diminu-
tion of private rights already vested in individuals, the treaty can-
not apply to these rights.
This rule relates to the retroactive force of a treaty, and, in order to make the
principle clear, it must be remarked that treaties have the authority of law,
even as to their effects upon the rights of private persons. In matters of public
338
INTERNATIONAL LAW CODIFIED
law, the respect for vested private rights cannot influence the applicability
or effect of the treaty. Thus, if a treaty has modified the rules governing the
jurisdiction of the courts of the two contracting states, or the execution of
foreign judgments in the respective territories, private individuals in either
state could not claim that differences arising between them before the con-
clusion of the treaty ought to be settled by the application of the rules pre-
viously in force relating to jurisdiction and the execution of judgments. In
matters of public law and social order, rights acquired by private persons
could not be taken into account to defeat or modify the authority of the new
rules sanctioned by the treaty. Should the treaty, on the other hand, modify,
for example, the rules relating to the acquisition and loss of citizenship in the
state, the rules sanctioned therein would not be applicable to persons who were
already citizens of either of the countries. The same thing would be true with
respect to a treaty that would include within literary copyright the right to
forbid translation, such a treaty could not apply. to translations already made
before its conclusion. See Fiore: Delle disposizioni generali sulla pubblica-
zione e interpretazione delle leggi (Marghieri; Unione Tip.-Ed. Tor., 2d ed.,
1914) v. I: Sulla irretroattivild delle leggi, chap. II, par. 27 et seq.; De la irre-
troactividad é interpretación de las leyes (Madrid, 1893); and ibid., De la re-
troactividad e irretroactividad de las leyes de procedimiento en los juicios civiles,
p. 429.
EFFECTS OF TREATIES WITH REGARD TO THIRD PARTIES
779. A treaty can establish, modify, extend or extinguish rights
only between the states which concluded it as contracting parties;
as to third states, not parties to the treaty, it must be considered
as res inter alios acta.
780. When two or more parties to a treaty have inserted some
clause impairing the interests of a third power, such clause must
be considered inoperative as to a state that has not taken part
in the treaty, even in the absence of protest.
781. When, in a treaty, an advantage to a third state has been
provided for, such stipulation does not become perfect and opera-
tive unless the third state has declared its intention to take ad-
vantage of it, or has in fact profited thereby.
782. Non-acceptance on the part of the third state cannot affect
the validity of the treaty unless its acceptance constitutes an
integral and principal part of the agreement, by making the valid-
ity of the treaty conditional upon its acceptance by the third
state.
783. No stipulation can be held valid and operative unless it
has been agreed to by each of the contracting parties in its own
name. When one of them, unknown to a third state, has promised
something for the third state, undertaking to obtain its consent,
f
LEGAL FORCE AND EXECUTION OF TREATIES
339
that party is bound to use its good offices with the said power to
obtain the approval of the clauses which concern it; but it would
not be bound to do anything, if, confident of fulfilling its undertaking
by the employment of its good offices, after having assumed an
engagement in the name of a third power, it had subsequently been
unsuccessful in obtaining the expected adhesion, notwithstanding
the employment in good faith of all means to that end.
EXECUTION OF TREATIES
1
784. International treaties must be held to be contracted in good
faith and executed accordingly. The contracting parties are
always bound, not only to carry out what they have expressly
stipulated, but also whatever may be presumed to have been
within their common intention, considering the subject-matter and
nature of the treaty.
785. Neither party should be allowed to vary or to add any
condition in the execution of the treaty, even when it may seem
that such condition is advantageous to the other party.
786. International custom cannot alter or modify an express
stipulation; but as to anything not the object of express declara-
tion and of a formal provision of the treaty, it is presumed that the
parties intended to comply with custom in the matter of its execu-
tion.
787. It must be held a fundamental principle of the law relating
to treaties that none of the signatory parties may at will be deemed
excused from executing it in good faith, in all its parts, owing to
changed circumstances or to a possible eventual prejudice to its
interests arising from its execution.
In principle, it must be observed that the possible injury and prejudice
which may result from the execution of a treaty could not constitute a suffi-
cient ground to justify a refusal to execute it by the state claiming to be in-
jured. In matters of private interest and in civil contracts it may be admitted
that an injury might, within certain limits, constitute a just ground for sus-
pending the execution of a contract and for bringing an action for annul-
ment. But, in international relations, if a state could, after having concluded
a treaty, suspend its execution on its own authority, alleging possible injury
and prejudice, it would be admitting a dangerous pretext for disregarding the
faith due to treaties, based on their inviolability.
See Fiore, Trattato di Diritto internazionale pubblico, 4th ed., v. 2; Inviolabi-
lita dei trattati, 1030.
There may be exceptional cases in which, in consequence of supervening
340
INTERNATIONAL LAW CODIFIED
events, the respect of the rule of inviolability of treaties might endanger the
political and economic life of the state. Yet, even in such a case, we believe
that the state cannot alone free itself from observance of the treaty, but
should submit its case to a tribunal of arbitration or to a conference.
788. Should one of the parties declare a suspension or actually
suspend the execution of a treaty which it had subscribed, the
other contracting parties would also be justified in suspending its
execution. Such a state of facts could only temporarily suspend
the execution of the treaty, but would not imply its annulment or
abrogation until the advisability of annulling the treaty had been
agreed upon by the contracting parties themselves as a result of
amicable negotiations, or until the demand of the party requesting
its abrogation had been recognized as well founded in law by a
tribunal of arbitration or a conference, after duly hearing the other
party which insists on its maintenance and execution.
LAWFUL MEANS OF ASSURING THE EXECUTION OF TREATIES
789. Parties may, by express undertakings, guarantee the execu-
tion of obligations contracted, assuring their execution through real
guaranties or means lawful according to international law.
790. A right given to one of the contracting parties to occupy
a portion of the territory until after fulfillment of the obligations
contracted must be considered as one of the lawful forms of real
guaranty to assure the execution of a treaty.
It is also permissible to furnish security to insure the payment
of a certain sum undertaken to be paid, or to provide for the in-
tervention of a third power as guarantor.
Other means of security may also be adopted, provided they are
not contrary to the general principles of international law.
791. It may be considered lawful for the parties to provide for
a penalty clause in case of non-fulfillment of the obligation. But
matters which cannot constitute the object of a lawful international
convention cannot be stipulated as a penal clause in case of non-
execution.
GUARANTY OF A THIRD POWER
792. A third state cannot be held as guarantor of an assumed
obligation, except by virtue of an explicit, certain stipulation
accepted in the form established for the conclusion of treaties.
LEGAL FORCE AND EXECUTION OF TREATIES
341
The obligation of guaranty cannot be inferred from the simple
fact that the state acted as mediator in the negotiations.
793. If the guaranty has been explicitly assented to and has
not been limited to certain specific obligations assumed in the
treaty it should be regarded as given and accepted for the fulfill-
ment of all obligations incurred in the treaty.
OBLIGATIONS ARISING OUT OF A GUARANTY
794. A state guaranteeing the obligations assumed by another
state in a treaty is bound, when so required, to assist in compelling
the other party to execute the treaty through means permitted by
international law. It is not bound to repair any damage caused to
the other state which relied upon its guaranty if, having done
everything in its power, without prejudice to its own rights, it
failed to secure the proper execution of the treaty.
795. The guaranteeing state is not bound to give what the
original debtor state has promised but failed to give, except in the
case of payment of a certain sum of money for which it has given
security by express declaration, or for which it has made itself
surety.
796. The guaranteeing state is not permitted to use the coercive
measures allowed by international law, in order forcibly to compel
both parties to execute the treaty, except where that state has an
actual interest, based on the ground that non-execution will inflict
a real and effective injury upon its own rights.
0
INTERPRETATION OF TREATIES
797. Interpretation of a treaty is necessary:
(a) When the words used in drafting the stipulations between
the parties have not a clearly determined meaning, and do not,
therefore, express a clear and exact concept.
(6) When the wording, while clear in itself, does not render
precisely and exactly the idea of the parties.
(c) When the general provisions of the treaty are not definitely
applicable to a particular case.
(d) When unexpected circumstances give rise to inconsistencies
between the present state of affairs and the stipulations of the
342
INTERNATIONAL LAW CODIFIED
treaty, or between the provisions of two treaties concluded be-
tween the same parties.
798. Interpretation may be grammatical or logical. The former
may be necessary to determine the sense of obscure or badly
drafted expressions. The latter serves to fix precisely the con-
cept and extent of the reciprocal obligations assumed by the high
contracting parties.
RULES OF GRAMMATICAL INTERPRETATION
799. There is no deed to interpret that which does not require
interpretation.
800. The meaning of words used must be fixed and determined
according to common usage, rather than according to elegant
language with all literary niceties.
801. Every fault of construction or syntax must be eliminated,
taking into account what precedes and what follows.
802. A word susceptible of different meanings may be con-
sidered as used sometimes with one meaning, sometimes with
another, according to whether the meaning coincides with its use
in a particular clause.
803. Technical expressions used in a treaty should be under-
stood in their technical, rather than in their popular sense.
If, however, according to specialists, technical terms or words
of art may have different meanings, one need not adhere strictly
to general definitions, but the words used should be understood
in the sense best adapted to the subject to which they refer.
804. There need be no subtle discussion on the true meaning
of the words used to express an idea when, according to the in-
tention of the parties, the meaning clearly appears. It should be
considered captious cavil to adhere to the strict meaning of an ex-
pression in order to elude the true sense of the words, as deduced
from the intention of the parties.
Puffendorff relates the case of Tamerlane who, having negotiated the sur-
render of a city and promised not to shed blood, caused the soldiers of the
garrison to be buried alive. Such subtle cavil and others of the same category
must be considered as gross and wretched subterfuges, which intensifies the
culpability of the treachery.
805. Words which have a different legal meaning in each of the
contracting states must be considered as used in the sense ascribed
LEGAL FORCE AND EXECUTION OF TREATIES
343
to them in the state which, by the treaty, undertakes an ob-
ligation.
806. The meaning of obscure or equivocal expressions must be
determined so as to make them agree with clear and unambiguous
expressions used in the same act or in other acts concluded be-
tween the same parties.
It is reasonable to presume that parties which, in manifesting their will,
have left some uncertainty as to the meaning of the words used to express it,
have employed those words in the sense deducible clearly and without ambi-
guity from another agreement between them. There is no reason why it should
not be conceded that the contracting parties have probably entertained the
same thought as in other analogous cases.
RULES OF LOGICAL INTERPRETATION
807. When the stipulation does not present any ambiguity it
may be interpreted so as to establish the intention of the parties
and to fix precisely the extent of their respective obligations.
808. The substance of the obligation must be determined by
recalling the thought and intention of the contracting parties, as
appears from the context of the treaty, rather than by referring
to the dead letter of the document (in fide semper autem quid
senseris, non quid dixeris cogitandum).
809. Yet, the state which has clearly assumed an obligation
cannot restrict its extent by invoking its unexpressed intention.
If it has not clearly expressed itself the clause under discussion
should not be interpreted in its favor, but against it, for having
failed clearly to express the obligation it intended to assume.
Compare L. 39, Dig. De Pactis (2, XIV): "Pactionem obscuram, vel am-
biguam, venditori, et qui locavit, nocere, in quorum fuit potestate legem apertius
conscribere.” Applying the proposed rule, it must be affirmed in principle that,
in order to determine the substance of an obligation, the meaning deducible
from the words used by the one assuming an undertaking or obligation must
be considered as decisive. It is to be presumed, in fact, that whoever prom-
ises voluntarily to do or to furnish something should take the greatest care to
use the most precise terms to express clearly what he promises. Therefore,
should expressions used by an obligor present some ambiguity, it should be
resolved by adhering to the sense of the words used in the promise, which
must be considered as accepted by the promisee in the terms used by the
promisor. We must, therefore, consider as true and absolute against the
promisor what he has sufficiently declared.
810. None of the contracting parties may so interpret a stipula-
tion as to draw undue advantage from it. The substance and ex-
344
INTERNATIONAL LAW CODIFIED
tent of the assumed obligation must be understood in the sense
most equitable and liberal to the respective interests of the con-
tracting parties.
811. Clauses which are not capable of execution because they
imply either a violation of principles of "common” law or a
violation of general interests or an impracticable result, must be
regarded as non-existing.
Treaty stipulations must be understood in the most equitable
sense, and always so as to produce some useful effect and to avoid
any derogation from "common" international law or the public
law of the contracting parties.
812. The intention of the parties, when it comes to determine
the substance and extent of each provision, must be deduced
from the treaty as a whole, considered as indivisible and homo-
geneous.
813. We should avoid an interpretation which leads to absurd-
ity; or one which renders the treaty null and void; or one which
would lead to an invidious result, by making one of the contracting
parties bear all of the burdens without any reciprocal obligations
by the other,
814. The spirit of every provision must be sought in its moving
reasons. Yet, the discussions relating to the stipulations of the
treaty, as found in the proceedings and preparatory work leading
to its conclusion, cannot serve to interpret the treaty so as to give
it a meaning substantially different from its express stipulations,
save when the negotiators themselves have drawn up and signed
a protocol to determine the legal meaning and value of the agree-
ment.
We may observe, to explain our rule, that what has been said by the pleni-
potentiaries in the course of the negotiations may be taken into considera-
tion to explain the scope of a particular stipulation when it does not fully
appear from the wording of the act. Nevertheless, it cannot be admitted
that what the negotiators may have said hinc et inde and their reserved and
unexpressed intentions may serve to weaken the juridical force of the written
agreement. Supposing that the agreement be clear, express and not ambig-
uous, its force could not be weakened by the contracting parties, by relying
upon verbal statements of the negotiators and on intentions in harmony with
secret instructions. These secret intentions, as well as equivocal expressions
used in the course of the negotiations, cannot serve to alter the legal force or
import of a written document, properly drawn up and signed.
1
YT
LEGAL FORCE AND EXECUTION OF TREATIES
345
BROAD OR RESTRICTIVE INTERPRETATION
815. On principle, it is not proper to give to a treaty a broad
interpretation by application of the rules relating to the interpre-
tation of statutes; it is necessary to conform to the intention of
the contracting parties and to consider every provision applicable
to the case which constituted the object of the agreement, apart
from unforeseen cases.
816. It is not proper to proceed by analogy to give a broad in-
terpretation to a provision in itself clear and explicit; it should, in
fact, be considered as applying only to that which constituted the
subject-matter of the treaty.
Analogy may be invoked when the provision lacks clearness and
precision, and is, therefore, ambiguous. Ambiguity may be elim-
inated by referring to the stipulations of another treaty relating to
analogous matters between the same parties.
817. Any provision tending to limit the free exercise of the
rights of either of the two contracting parties must be understood
in the most restrictive sense, like any other impairment of the
liberty of persons under "common" law. Provisions entailing
a burden must likewise be understood in a restrictive sense, when
the words used do not clearly express what the party has engaged
to undertake or do.
This rule is founded on the aphorism: Odia restringi, favores convenit am-
pliari, which itself is based on the presumption that a party who has ac-
cepted a restriction upon his natural liberty has intended to sacrifice as little
as possible of that liberty, and to assume the least burdensome obligation,
since the party in whose favor he has bound himself has not required of him
an explicit and precise declaration determining the extent of his obligation.
LEGAL INTERPRETATION OF A TREATY
818. It is incumbent upon parties which have concluded a
treaty to adjust differences and doubts which arise as to its import.
To this end, they may subscribe a declaration or protocol, which
is then regarded as an integral part of the treaty.
819. The interpretation of the doubtful clauses of a treaty,
made by declaration or protocol, will be regarded as legal and
authentic whenever they fulfill the requirements for the validity
of a convention between two states.
346
INTERNATIONAL LAW CODIFIED
820. Whenever the contracting parties are unable to agree as to
the interpretation of a treaty, the difficulty should be adjusted
like any dispute involving individual interests between two states,
and its interpretation should be submitted to the decision of a
tribunal of arbitration.
821. The treaty, considered 'as a statute, may be interpreted
by the courts when it is necessary to apply it in the interest of
private persons. This interpretation, however, has merely the
same effect as the interpretation of any other legislative provision.
Therefore, it is only of value in the state in which the court sits.
It has no influence on the interpretation of the treaty as a politi-
cal act, save where expressly or tacitly accepted by the contracting
parties.
In order fully to determine the import of the proposed rules it may be ob-
served that any treaty, in so far as it establishes the respective rights of the
contracting parties and the “ 'common” law of their relations in regard to
the subject-matter of their convention, is a political act. Therefore, since the
interpretation of such a convention always involves the determination of the
respective sovereign rights, it is evident that, in that respect, the treaty can
be interpreted only by the contracting parties, and that, for the validity of
the act, it is essential that the protocol of interpretation shall present the same
intrinsic and extrinsic characteristics as any other convention between two
states.
The treaty, however, may be considered as the law of the state
promulgating it, and the courts that have to apply it within the domain of
private and of public municipal law may interpret it as they interpret any
statute adduced in private litigation.
Compare: French Court of Cassation, June 30, 1884 (Journal du droit in-
ternational privé, 1885, p. 307); January 6, 1873 (Dalloz, 1873, I, 117); Jan-
uary 6, 1861 (Journal du Palais, 1861, 1149); Court of Cassation of Florence,
July 3, 1874 (Bettini, XXVI, I, 866); Court of Cassation of Rome, June 12,
1895 (La Legge, XXVth year, § 2, p. 895).
[By article VI of the Constitution of the United States "all treaties made or
which shall be made under the authority of the United States shall be the
supreme law of the land; and the judges in every state shall be bound thereby,
anything in the constitution or laws of any state to the contrary notwith-
standing"-Transl.]
DISPUTES RELATING TO THE EXECUTION OF A TREATY
822: Every dispute relating to the execution of a treaty con-
cerning special interests concluded between two or more states
must be decided in accordance with the rules governing the so-
lution of questions of a political nature, by reference to the applica-
ble principles of international law.
I
LEGAL FORCE AND EXECUTION OF TREATIES
347
823. It is incumbent on states concluding a treaty to make a
stipulation of a reciprocal obligation to refer to a tribunal of arbi-
tration any difficulties arising out of it, and to draw up, as the case
may be, a compromis for the submission of a specific case to ar-
bitrators.
824. The parties are bound to observe any rules laid down in
the treaty concerning the constitution of the arbitral tribunal
and the procedure to be followed. If no rules are provided, and
yet the parties have agreed to submit differences to arbitral juris-
diction, they shall be considered as bound to observe the rules of
“common law," both as regards the constitution of the tribunal
and arbitral procedure.
825. The obligation to refer every difficulty relating to the
execution of a treaty to arbitrators must be considered as based
on the general principles of law, even when not expressly stipulated
in the treaty. Consequently, in case of a controversy as to the
execution of a treaty and of failure of diplomatic negotiations to
adjust it, one of the parties always has the right to notify the other
party of its intention to refer the question to the decision of a
tribunal of arbitration, and if the latter declines to agree to the
proposition, the notifying party may hold the other responsible
for all the consequences which may result from the unavoidable
severance of friendly relations between the two states.
826. Every difficulty relating to the execution of a treaty of
general interest must be submitted to the decision of a Conference
to be established and to operate in conformity with the rules laid
down in the following book.
We believe it essential to distinguish between treaties of general interest
and those of special interest to a few states, because we do not believe they
can be subjected to the same rules. The distinction must be based on the
subject-matter and purpose of the agreements. A treaty concluded between
two or more states to regulate their special concerns, as for example, interna-
tional literary and artistic copyright, international postal service, extradition
of criminals, customs relations and maritime service, cannot be compared
with a treaty relating to the navigation of international rivers, the suppression
of the slave trade or to any other agreement concerning common interests.
We concede that difficulties relating to the execution of either class of treaties
should be adjusted through peaceful means; but, in our opinion, those relating
to treaties of general interest, like those concerning treaties of particular in-
terest, may be referred to arbitrators. Yet, with respect to the former class
of treaties a certain peaceful collective intervention cannot be excluded; hence
we hold that difficulties relating thereto ought to be referred to the Confer-
ence, whose organization and operation will be set forth below.
1
TITLE IV
ABROGATION AND ANNULMENT OF TREATIES
GENERAL PRINCIPLES
827. Every treaty may be abrogated, either in whole or in part,
by agreement of the states concluding it, or by a renunciation
of its benefits on the part of the state profiting by it.
There are numerous instances of conventional abrogation of obligations aris-
ing out of a treaty. The provision of article 5 of the treaty concluded at Prague
between Prussia and Austria, August 23, 1866, was abrogated by the treaty
signed between the same states at Vienna, October 11, 1878. Under that
article of the Treaty of Prague, Austria renounced all the rights that were
granted her over the duchies of Schleswig and Holstein by the Treaty of Vienna
of October 30, 1864, and transferred her rights to Prussia, reserving to the
people of North Schleswig the right to unite with Denmark, if by a vote freely
expressed, they manifested this desire. Owing to the abrogation of that
article by the agreement of 1878 the plebiscite was not required.
828. None of the contracting parties may on its own authority
consider the treaty as abrogated either as a whole or in part, or
suspend its execution, but must deem itself bound to observe it
in all its parts until abrogation has been legally pronounced by a
competent tribunal. If, however, one of the parties should suspend
the execution of the treaty without evoking any protest from in-
terested states, from which acquiescence may be presumed, the
treaty ought to be considered as annulled by reciprocal tacit
consent.
829. A party which has sufficient grounds to consider the abroga-
tion of a treaty as justified, may suspend its execution and
denounce it, notifying the interested parties, through diplomatic
channels, of its asserted right to terminate the treaty. The abro-
gation, however, shall not be considered as having legally taken
place except through a formal agreement of the interested parties,
or the decision of a competent court.
After the fall of the Second Empire, the Russian Government in October,
1870, informed the signatory powers of the treaty of Paris of 1856, that,
348
ABROGATION AND ANNULMENT OF TREATIES
349
owing to the violation of the stipulations relating to the neutrality of the Black
Sea, Russia considered itself released from the restrictions upon the right to
have a fleet in that sea, and invited them to meet in conference in order to
amend the clauses of the treaty.
Nevertheless, the abrogation of those stipulations could not be deemed to
have been legally effected until, as a result of the London Conference, the
treaty of March 13, 1871 abrogated articles 11, 13 and 14 of the Treaty of
Paris.
830. Unilateral denunciation may be effectual in annulling a
treaty only when the right is recognized in the treaty and it is
carried out in the terms and cases provided therein and in the
forms established by “common” law.
JUDICIAL PROCEEDINGS FOR THE ABROGATION OF A TREATY
831. The abrogation of a treaty ought to be pronounced by a
competent court, at the formal instance of a signatory party.
832. The right of a party to request the annulment of a treaty
must be considered as well founded, when it is proved and recog-
nized that the treaty lacks one of the essential conditions required
by international law for its validity.
Compare rules 747 et seq.
833. Prejudice to the interests of a signatory power arising out of
the execution of a treaty cannot be deemed a sufficient ground to
request its annulment.
Even when a state has imprudently concluded a treaty without full knowl-
edge of the case, it must be bound to bear the consequences and is not war-
ranted in requesting its annulment on the ground of prejudice to its interests.
Even if, owing to a change of circumstances, the state suffers grave injury
by reason of the execution of the treaty, it cannot on that ground refuse to
execute it. If it were ever to be admitted that a state could cancel its obliga-
tions when it considered the treaty as disadvantageous, what would become
of the good faith due to agreements and the inviolability of international
treaties? Private law has admitted the rescission of contracts on the ground
of injury because they involve only private interests, whereas treaties involve
public and international interests and the maintenance of their inviolability
constitutes the highest international interest.
Compare rule 787.
834. No state may base its right to regard a treaty as annulled
on the ground that circumstances have so changed that, had they
existed at the time the treaty was concluded, they would have
constituted a serious impediment to the giving of its consent, es-
sential to the conclusion of the agreement.
350
INTERNATIONAL LAW CODIFIED
}
It is contended that every convention must be subordinated to the clause
rebus sic stantibus. Admitting this conception in a general and indefinite
sense, it would follow that the termination of a treaty could be brought about
by the unilateral conclusions of one of the parties as to unexpected changes in
the state of fact existing at the time the treaty was concluded. In fact, by
accepting the rule without reservation, each of the contracting parties would be
considered as warranted in freeing itself from its obligations by alleging a change
of the state of affairs existing at the time when it had decided to bind itself.
It may be admitted that a change in such state of affairs might constitute a
sufficient motive for requesting the annulment of the treaty by a competent
court, leaving it to that court to decide whether, considering the serious
prejudice likely to arise from the fulfillment of the obligations of the treaty, it
should be revoked as inoperative by reason of changed circumstances. But,
so long as the court has not passed upon the request for annulment presented
by the interested party, the rule of inviolability must prevail absolutely.
Compare the protocol of January 17, 1871, signed by the plenipotentiaries
at the conference of London (Martens, Nouv. recueil général, XVIII, p. 278).
835. When a treaty, however, has been concluded with a view
to conditions which afterwards come to be materially changed, so
that the object of the convention may be considered as having
completely disappeared, the treaty ought to be annulled by a
competent authority, after establishing the absence of any reason
for the continuance of the obligation.
This rule is based on the just view that when a state of facts which con-
stituted the principal and substantial object of an agreement happens later
to be completely changed, the treaty, although valid at the time of its con-
clusion, subsequently loses its raison d'être, since it must be considered as lack-
ing in object and in basic reason. Therefore, the idea of this rule is quite
different from that on which the preceding rule is based. In fact, assuming
that the treaty is concluded to regulate a certain predetermined condition,
which constituted the principal and substantial object of the agreement, it is
reasonable to admit that when the continuance of the condition assumes the
actual character of a tacit sine quâ non, the absence or removal of the con-
dition renders the agreement without object, and the treaty, consequently,
without legal effect.
Compare Rule 874.
836. A change in the political constitution of either of the con-
tracting states, cannot ipso facto be deemed a sufficient ground for
annulling a treaty, except when its execution may be considered
incompatible with the new constitution of the state.
Changes in the political constitution of a state do not affect its personality
(compare Rules 101, 183, 776). Therefore, the obligations assumed by the
state must subsist in the same way as do the rights which it possesses.
837. When, by reason of a change in the political constitu-
tion of a state, certain clauses of a treaty become impossible of
1
ABROGATION AND ANNULMENT OF TREATIES
351
fulfillment, their abrogation could be effected by agreement be-
tween the parties because of established impossibility of fulfill-
ment, if it were desired to continue in force the remainder of the
treaty.
In the absence of such an agreement, the interested party could
suspend the execution of the treaty, which, since it must be re-
garded as an indivisible whole, could not be fully executed, and if
the other contracting party does not consent, the dispute arising
out of its suspension ought to be referred to a tribunal of arbitra-
tion, which should first of all decide whether in effect the fulfillment
of all the obligations assumed under the treaty is incompatible with
the new political constitution of the state, and then determine the .
effects of the inconsistency, that is, whether the partial annulment
of the incompatible agreement should be decreed, while maintain-
ing the rest of the treaty in force, or whether the entire treaty
should be held to be terminated.
838. When, in order to carry a treaty into effect, one of the
contracting parties is required to take certain legislative action
and the government of the state so obligated has failed to provide
or was unable to obtain from the legislature the necessary legisla-
tion to carry out its obligations under the treaty, the other con-
tracting party has the right to suspend the execution of the treaty
until the legislative measures have been enacted, and may move
the annulment of the treaty for non-execution by the other state.
In such a case, the international responsibility of the state which
has assumed obligations it could not meet, remains complete.
Except where the impossibility of execution arises out of the political con-
stitution of the state, when rule 763 must be applied, the enactment of legis-
lation required for the execution of a treaty, which the government has under-
taken to enact (when it has not clearly conditioned its obligations under the
treaty to the anticipated legislation, so as to make the legislation a suspensive
condition), must be deemed a matter of municipal law, that can have no in-
fluence whatever on the legal force of the treaty as an international obligation
of the state. Therefore, its responsibility always exists, owing to the fact that
it has assumed an obligation without being certain of overcoming the ob-
stacles necessary to carry it into effect.
839. If a treaty concluded between two or more states should
be incompatible with another treaty concluded by one of the con-
tracting parties with a third power, the latter could demand of its
co-contractor the abrogation of the later treaty, which would im-
pair rights previously acquired.
352
INTERNATIONAL LAW CODIFIED
When the parties are unable to agree, the difficulty ought to be
submitted to the judgment of a tribunal of arbitration, and if that
tribunal should recognize the complaint of the third power as well
founded it should decree the later treaty to be inoperative, so far
as that power is concerned. This would give rise to the responsi-
bility of the state in its relations with the other contracting party
for having undertaken an obligation that it certainly knew it
could not assume. It would be necessary then to apply the rules
relating to the international responsibility of the state, which by
its own act has violated the rights of others.
In order to explain this rule fully, it should be recalled that a violation of the
rights of others cannot lawfully constitute the object of an obligation. Thus,
in the relations of the state obligated to the third power, if the latter wishes
to maintain intact all rights previously acquired, the treaty should be declared
null and void in order to maintain undisturbed previously vested rights. But,
in the relations of that state with the other parties, the treaty could subsist
notwithstanding the opposition of the third power, for the reason that the
prior treaty with the third power must be deemed res inter alios acta with
respect to the other contracting parties.
The case would be quite different, should the treaty imply in itself a viola-
tion of the rights of a third power according to international law. In such case,
the treaty would be invalid as to all the parties, owing to the fact that the vio-
lation of the rights of third parties cannot lawfully be the subject-matter of a
convention.
Let us suppose, for example, that a treaty for a customs union was con-
cluded between states A, B, C and D; that state B had previously concluded
another customs treaty with state X, and that the obligations it has assumed
in the treaty for a customs union imply a violation of the rights already ac-
quired by state X. In that circumstance, the treaty for a customs union would
subsist with respect to states A, C and D, and could be declared inoperative
only with respect to state B, for which state the violation of the rights already
acquired by state X under the previous treaty, could not constitute the lawful
subject-matter of a convention. The result would be that state B could not
be a member of the customs union, and would incur international responsi-
bility towards states A, C and D, in case the customs union concluded be-
tween them and State B had provided for pecuniary benefits.
TERMINATION AND RENEWAL OF TREATIES
840. When, in a treaty, it has been formally agreed that at the
expiration of the stated term, the treaty will be deemed to con-
tinue from year to year, or for a longer period, if either of the
parties should fail to declare its intention to terminate it, the
treaty must be considered in force until officially denounced within
the period and according to the forms stipulated.
ABROGATION AND ANNULMENT OF TREATIES
353
841. The party desiring to exercise its right to denounce
a treaty must do so through diplomatic channels within the
period agreed upon. The other party may similarly denounce it.
But, even in the absence of such formality, the treaty would cease
to be in force by reason of the act of denunciation legally notified.
842. If, in the treaty, an obligatory term has been stipulated,
without a clause providing for tacit termination in default of de-
nunciation, and should the parties, after the contractual period
has expired, continue reciprocally to observe their obligations, the
treaty should be considered as tacitly renewed, when the reciprocal
observance of the treaty is proved in a formal, explicit and un-
equivocal manner, and is such as to establish clearly the reciprocal
intention of maintaining the treaty in force after the expiration of
the contractual period.
843. The intention of the contracting parties to maintain the
treaty in force after the expiration of the contractual period cannot
be considered to arise from the observance of certain rules of
"common" law, which happened, however, to be recognized in the
treaty.
Compare the case discussed before the French Court of Cassation in con-
nection with the tacit renewal of consular conventions between France and
the United States and the motion of Public Prosecutor Dupin, Cass., July 24,
1861 (Journal du Palais, 1861, p. 1149).
EXPIRATION OF TREATIES
1
844. Treaties expire legally:
(a) By reciprocal consent of the contracting parties;
(6) By performance of the obligation contemplated;
(c) By the expiration of the term fixed in the treaty, when not
continued by the parties;
(d) By the express renunciation of the state which is alone in-
terested in maintaining the treaty in force;
(e) By the fulfillment of a condition subsequent;
(1) By the complete disappearance, fortuitous and nonculpable,
of the circumstances which constituted the object of the con-
vention.
845. All treaties do not expire ipso jure ipsoque facto, by reason
of war between the contracting states, although they cease to be
operative. All conventions between the two states, however in-
354
INTERNATIONAL LAW CODIFIED
compatible with a state of war, must 'be deemed suspended ipso
jure ipsoque facto when war breaks out.
The principle maintained by some publicists that, unless there is a formal
stipulation to the contrary, treaties expire in consequence of a declaration of
war which suspends and destroys all their effects (see Calvo, Droit internat.,
4th ed., $ 362) does not seem to us consistent with the principles of modern law,
which tend to restrict the effects of war to the relations between state and
state. All treaties certainly cannot be considered as utterly extinguished on
account of war.
Compare: : Rule•859, and Fiore, Trattato di diritto internazionale pubblico,
4th ed., v. 3. ...
TITLE V
SPECIAL TREATIES
846. Special treaties may be as numerous as are the matters
that may form the subject of international relations and of the
agreement of states in matters of reciprocal interest.
It seems unnecessary to classify treaties and we may refer to our work:
Diritto internazionale pubblico, v. 2, § 1008. At the present time, especially,
when international relations between states have considerably extended and
the necessity to regulate them through conventions and treaties has conse-
quently increased, it may be said with reason that the enumeration would be
long, and it does not seem to us necessary to make it here.
847. Every treaty should be characterized by its object and con-
tent, rather than by the name chosen by the parties.
This rule is based on the wise maxim: plus valet quod agitur quam quod simu-
late concipitur. It may happen that two states have, for example, denominated
as a treaty of customs union a convention concluded to regulate trade. Since
the stipulations of the treaty show that the convention has not the nature,
characteristics and conditions of a treaty of customs union, it cannot be con-
sidered such merely because the parties have so named it. If it were proved
that the convention was substantially a treaty of commerce, it would be
operative as such with respect to other states parties to a treaty of commerce,
should they be entitled to the treatment of the most favored nation.
Sometimes, also, the title "treaty of commerce" is given to a convention
which, besides stipulations relating to trade, contains clauses concerning
literary copyright or patent and trade-mark protection, the institution of con-
sulates and the extradition of criminals. It is the subject-matter and not the
name of a treaty which controls its functions, operation and status.
848. A special treaty must be judged, executed and interpreted,
not only in accordance with the general rules governing all treaties,
but also in conformity with those which relate to its special na-
ture and particular subject.
TREATIES OF CESSION
849. A treaty of cession is a treaty by which a state cedes to
another state a portion of the territory that it owns, by renouncing
its rights of sovereignty over it.
355
356
INTERNATIONAL LAW CODIFIED
Provided it be legally concluded and satisfies all the require-
ments of validity, such a treaty results in a loss of the rights of
sovereignty over the territory ceded by the ceding state and the
acquisition of the same rights by the transferee state (see rules 147
and et seq.)
A treaty of cession does not become operative at the time of the stipulation,
but at the time the ceded territory is taken over.
Compare rule 150.
We must, therefore, admit that if the transferee power should fail to exer-
cise its rights for a considerable time, the treaty of cession might be considered
inoperative, on the ground of tacit renunciation on the part of the trans-
feree. It is true that, in international law, there is no rule relating to extinc-
tive prescription, as is the case in positive civil law; but we must admit, under
general principles, that he who fails, for a long period of time, to claim his
rights, must be regarded as having renounced them. As some form of taking
possession of the ceded territory must be deemed essential to make a treaty of
cession operative, it is reasonable to concede that, if the transferee should fail to
take possession of the said territory and should allow a great many years to
pass (30 or 50, for example), without availing itself of its rights, it should be
proper to claim extinctive prescription.
850. No peaceful treaty of voluntary cession of a portion of
territory can be considered valid unless it has been concluded by
those authorized thereto by the constitutional laws of the ceding
country and in conformity with the forms required under public
municipal and international law (see rules 751, 759).
851. The effects of a treaty of cession, either so far as they
modify the exercise of the respective rights of sovereignty, or so far
as the rights of private persons are concerned, must be determined
in conformity with the rules relating to cession and annexation.
See the rules laid down in Book I, $$ 154 et seq.
852. Leaving aside the question of the right of every victor to
condition the conclusion of peace upon the cession of a portion of
territory, and the question of the advisability of profiting by the
fortunes of war and of imposing that condition on the vanquished,
treaties of forced territorial cession lawfully concluded (con-
formably to the principles of rule 850) must be deemed valid be-
tween the contracting parties, if the general rules of international
law relating to the validity of treaties have been observed.
TREATIES OF COMMERCE
853. The main object of commercial treaties must be to regulate
commercial relations between the contracting parties for the
SPECIAL TREATIES
357
purpose of protecting, extending and developing the freedom of
commerce.
854. States should conclude treaties of commerce in order to
facilitate exchanges, to overcome obstacles which hinder the free
movement of the products of the soil and industry and to protect
the freedom of competition, rather than to organize, directly or
indirectly, a protective system or to establish, in the interest of
the Treasury, any form whatever of restriction upon the freedom
of commerce.
855. Commercial treaties must be based on the most complete
equality of treatment so as to assure equivalent and proportion-
ately equal advantages to the contracting states and their citizens,
without either of the parties taking advantage of its preponderance
and greater power to compel the other, weaker or less powerful, to
accede to less favorable or more onerous conditions.
856. States may regulate, through a treaty of commerce, all
matters concerning their international relations, but the proper
object of these conventions is to regulate importation and exporta-
tion, the transit, transfer, and deposit of merchandise, customs
tariffs, navigation dues, quarantine, coastwise trade, fishing and
other commercial acts.
857. Each state should conclude commercial treaties with the
greatest possible number of states, so as to extend the freedom of
international exchanges and to promote reciprocal interest as
much as possible by developing competition.
The foregoing rules seek to introduce in practice the principles advocated by
modern science, namely, that the reciprocal interest of all the states seeking
to assure the development of the different factors of national wealth consists
in multiplying international exchanges as much as possible and in promoting
competition. Without competition, national industry cannot thrive; it re-
mains stationary, and if industry were not stimulated and encouraged by
competition to greater productivity, there would be no stimulus to labor, the
principal factor of national prosperity, and the increase of capital essential to
the development of agriculture, industry and commerce. It is certain that
in order to meet the movement of international exchanges and foreign compe-
tition, it is indispensable to improve and encourage national industry. That
must be the task of each government. Nevertheless, it is evident that public
prosperity and national wealth could not be achieved and increase without the
development of all the contributing factors, and that such development is
bound up with the laws governing freedom of production, commerce, competi-
tion and international exchanges. Each government must improve the agri-
culture and industry of its country, in order that it may be able to hold its
358
INTERNATIONAL LAW CODIFIED
own in the struggle with foreign competition and international exchanges; and
therein lies the secret of public prosperity.
858. Treaties of commerce must be executed with the most
scrupulous integrity and good faith. Governments must examine
and weigh carefully the obligations they are about to assume
in a convention of this kind and absolutely avoid recourse to
any subterfuge to evade the faithful execution of its stipula-
tions.
INTERPRETATION OF TREATIES OF COMMERCE
859. Treaties of commerce must be interpreted according to
their purpose and the intention of the parties.
They must be considered as concluded mainly to regulate com-
mercial intercourse and cultivate amicable relations between the
contracting parties, and must be regarded as completely suspended
when war breaks out, provided there is no clause to the contrary
in the treaty expressly declaring that certain clauses are to apply
in time of war.
Since it is generally admitted that war does not annul ipso jure ipsoque
facto treaties concluded before the declaration of war, but only suspends the
operation of those inconsistent with war, it follows that treaties of commerce
and navigation and those concerning certain customs relations and others of
like nature, while they cannot be deemed null and void, must be regarded as
suspended in their operation by reason of the war. Still, it is necessary to
bear in mind that in certain commercial treaties, as in that between the United
States and Italy of 1871, certain articles, and especially articles 12 to 21, have
no application in time of peace, but only apply when war breaks out between
the two countries. As regards private rights governed by treaties, it may be
said, in principle, that even though they must be regarded as suspended when-
ever their exercise happens to be connected with sovereign rights, a differ-
ent rule must, nevertheless, be followed in certain cases. Thus, for example,
it might be said (when so stipulated in the agreement) that judgments ren-
dered by the respective courts are to be executed. In such case it could not
be maintained that this could be continued notwithstanding the war, owing
to the fact that the right of sovereignty is at stake jointly with the right of
individuals. On the other hand, copyright rights regulated by treaty should
be respected notwithstanding the state of war. This applies also to treaties
concerning exclusively the exercise and enjoyment of private rights. Now-a-
days, especially since war is admitted, with more reason, to be a relation be-
tween states and that individuals in the exercise of their rights should not
be involved in the relations between states, the supreme rule in deciding the
matter may be found in this principle.
SPECIAL TREATIES
359
1
TREATMENT OF THE MOST FAVORED NATION
860. A reciprocal most-favored-nation clause in a treaty implies
the right of one of the parties to enjoy any favor whatever granted
by the other party, by treaty, to a third power.
(This represents the usual continental view. The position of the United
States has been that privileges extended in a treaty in return for reciprocal
advantages cannot be claimed gratuitously by another power under a most-
favored-nation clause, but must rest upon a grant of equivalent benefits to the
United States.-See Moore, Digest of International Law, v. 5, § 765.—Transl.]
861. The right to enjoy the treatment of the most favored na-
tion is, in principle, conditioned upon the treaty with the third
power being still in force. It must, therefore, be deemed extin-
guished by reason of the expiration of the final term stipulated in
the treaty with the third power, and cannot be operative beyond
the term stipulated in the most-favored-nation treaty itself.
It is evident that, as the advantages and favors granted by the clause cannot
be extended, neither can the term be extended, since it must be considered as
an integral element of the thing enjoyed.
862. When the state which has stipulated for most-favored-
nation treatment claims its privilege by formally notifying the
other party, through diplomatic channels, that it considers itself
entitled to a more favorable concession granted to a third power,
and the other party has expressly acknowledged the claim, the
right so acquired under the clause will be regarded as fully vested
and will subsist until the expiration of the treaty between the
parties, of which the right thus formally acquired is to be con-
sidered an integral part.
863. When the express declaration of intention to take ad-
vantage of the right of most favored treatment has not been
made through diplomatic channels, as stated in the foregoing rule,
we must hold as ineffectual any tardy declaration made after the
treaty executed with the more favored third power has expired,
and the more favorable treatment will have to be considered as
having ceased from the day when the treaty with the third power
went out of force.
Treaties concluded with third powers cannot, in principle, grant the enjoy-
ment of any right, except when the parties have agreed that one of them
could avail itself of the more favorable advantages granted by the other to a
third power and could claim the same rights. As to it, it is evident that
since the right arises from the more favorable treatment of the third power,
360
INTERNATIONAL LAW CODIFIED
it can only subsist so long as the treaty of which the claiming state desires to
avail itself exists. Therefore, if that treaty has expired, the right to invoke
its enjoyment must be likewise considered as having lapsed. This is a
case where we may apply the maxim: Conventio omnis intelligitur rebus sic
stantibus. A party may claim the enjoyment of a privilege so long as it
is granted to a third power. It could not, however, take advantage of a privi-
lege that no longer exists.
The case seems to us quite different where an express declaration is made by
a party which notifies the other that it considers itself entitled to a privileged
right under the most-favored-nation clause of a treaty. In such a case it
exercises its own right in considering itself as the grantee of the concession of
the more favorable treatment extended to the third power, and the right so
acquired becomes the complement of the right arising from the treaty con-
cluded with its co-contracting party. Therefore, that party could no longer
limit the enjoyment of the right to the term fixed for the expiration of the
treaty concluded with the third power. It would suffice, indeed, if the claim-
ing party based its right on the most-favored-nation clause of the treaty and
its express and duly notified declaration that it intended taking advantage of
the more favorable concession made to a third power. Having thus acquired
jure proprio the right to enjoy that concession, the right thus formally acquired
should be considered independent of the concomitant existence of the treaty
with the third power, which would merely serve to determine the extent of
the more favorable treatment without regard to the length of time of its
enjoyment.
864. The general clause extending most-favored-nation treat-
ment cannot be invoked to claim the enjoyment of any privilege
whatsoever granted to a third power, under any kind of treaty
concluded with that power, but must be considered as limited to
the treaties which have the same object and purpose.
The stipulations of treaties of commerce must be interpreted by taking
into account the object and purpose of the treaty and the intention of the
parties; such must be the case especially as regards the clause, often inserted,
under which one of the parties has the right to enjoy the advantages that are
or shall be granted by the other to the most favored nation. If, for instance,
a treaty be concluded with a third power, in which other matters foreign to
commerce were provided for, e. g., the transfer of successions in its relation
with the applicable law, or liquidation in case of bankruptcy, etc., it could not
be claimed, in our opinion, that such provisions, undoubtedly foreign to com-
merce, ought to be enjoyed by the other state under the most-favored-nation
clause embodied in a treaty of commerce. The import and extent of such a
clause, like those of any treaty stipulation, must be determined by the object
and purpose of the treaty.
UTILITY OF TREATIES OF COMMERCE
865. Treaties of commerce, save for express provision to the
contrary, extend to all the possessions of the contracting states at
the time of the conclusion of the treaty.
SPECIAL TREATIES
361
With respect to possessions subsequently acquired by the state,
the rules hereinbefore laid down relating to annexation are appli-
cable.
866. A treaty of commerce, although duly concluded, becomes
operative between the contracting parties only after its ratifica-
tion in conformity with the constitutional law of the respective
states and after the exchange of ratifications.
It must be considered in force until the expiration of the
term fixed therein, unless its duration is extended by express or
tacit consent of the parties themselves. In that case, it will be
held to be reciprocally binding until either party has notified the
other through diplomatic channels of its intention to terminate it,
fixing the day on which it shall be considered abrogated.
TREATIES OF CUSTOMS UNION
867. The purpose of treaties of customs union is to establish
between the states organized as a union the right of free exchange
of products, without subjecting their respective citizens to the
payment of customs duties at the frontier.
The result of these treaties is, with respect to the collection of
the respective customs duties, to suppress the effect of boundaries
between the states of the union.
Customs unions aim to consolidate the economic interests of the peoples
who are members thereof, and thus to prepare gradually for their political
union. The most striking instance is found in the present political union of
the states of Germany, which was the final outcome of the Zollverein (German
Customs Union). This union, initiated by Prussia in 1828, was successively
enlarged with admirable perseverance by consolidating the economic inter-
ests of the different states of Germany associated with the intention of pre-
paring and bringing about their political union, as happened after the events
of 1866 and 1870.
Compare: Funck-Brentano and Sorel, Précis du droit des gens, pp. 158 to 174,
on the political consequences of the customs union; Richelot, L'association
douanière allemande; and Bonfils, 3d ed., where in a foot-note under $ 919,
numerous works on the subject are cited.
CONSULAR CONVENTIONS
868. The purpose of consular conventions is to establish con-
sulates by common agreement in the countries parties thereto,
and to determine the rights, attributes, functions and prerogatives
362
INTERNATIONAL LAW CODIFIED
of the respective consuls and their relations with the territorial
law and authorities in the exercise of consular rights.
869. It is the duty of states to extend the conclusion of consular
treaties as much as possible for the protection of their citizens
residing abroad and to assist them in carrying on and developing
trade and commerce.
870. Consular treaties must be considered especially useful and
desirable when they improve the organization or operation of the
consular establishment.
For the determination of these functions and relations, compare
rules 495-529.
CAPITULATIONS
871. The object of Capitulations is to determine and to regulate
the relations between civilized and uncivilized states, as regards
the exercise of their respective sovereign rights with respect to the
citizens of civilized states who reside in the countries where Capit-
ulations are in force; to regulate the administration of civil and
criminal justice with respect to these citizens; and to determine the
prerogatives and privileges of diplomatic and consular agents and
their special functions.
872. In principle, Capitulations are derogatory to the local
common” law; they are based on the inferior state of civiliza-
tion of certain states of Africa, Asia and other barbarous regions,
which makes it impracticable to exercise sovereign rights mutually
and reciprocally with perfect equality of legal condition.
873. Capitulations must be considered as concluded for an in-
determinate period, and held binding in their derogations from
“common” law until revoked by reciprocal consent of the states
between which they are in force.
In the countries where Capitulations are in force, it is necessary
not only to apply their provisions but also to observe the rules
arising from custom established by a constant practice in the
exercise of the functions assigned to the respective authorities.
The first Capitulation dates back to February, 1535, and was obtained by
Francis I from Soliman the Magnificent. See, for the history of Capitulations
and of the conventions successively concluded and renewed: Féraud-Giraud,
De la juridiction française dans les Echelles du Levant et de Barberie et les jus-
tices mixtes dans les pays hors chrétienté; Benoit, Etude sur les capitulations
entre l'empire Ottoman et la France, Paris, 1890; Pradier-Fodéré, La question
SPECIAL TREATIES
363
des capitulations en Orient, Revue de droit internat., 1869, p. 118; Bonfils,
Manual du droit internat. public, p. 423; Contuzzi, Il diritto internazionale
nella sua applicabilità in Oriente; Olivi Luigi, under the word Capitolazioni,
in the Digesto Italiano.
At the present time, besides the Ottoman Empire, Capitulations are in
force in other oriental states.
The countries where Italian consuls exercise civil and criminal jurisdiction
under Capitulations are:
China--(See, for jurisdiction in criminal matters, the treaty of October 25,
1866, art. 26).
Corea-(Treaty of June 26, 1884) art. 3.
Morocco—(Treaty of June 30, 1825; treaty of Madrid of July 3, 1880, and
General Act of Algeciras of April 7, 1906, Ch. II and V.)
Persia—(Treaty of September 26, 1862, art. 5.)
Siam-(Treaty of April 8, 1905, art. 3.)
Turkey, for all its provinces and dependencies. In Turkey, Italian con-
sulates are established in Europe proper, at Constantinople; at Canea, for
the whole territory of the Island of Crete; at Philippopoli and Sofia, for Bul-
garia; at Janina, Salonika, Scutari, and Uskub. For Turkey in Asia, they are
located at Aleppo; for Syria, at Beirut, Damascus and Jerusalem, Smyrna and
Trebizond. For the Turkish provinces of Africa, they are established at
Bengazi, at Tripoli [before the Italian occupation) at Alexandria in Egypt,
Cairo and Port Said. See for Egypt the protocol of January 23, 1875, and the
judicial regulations annexed thereto, and for the other provinces, the treaty
of July 10, 1861, article I, and the treaty of Berlin of July 13, 1878, articles
8 and 20.
See for the changes which have occurred in the system of Capitulations in
Egypt, Algeria, Tripoli, Morocco, Madagascar, etc., A. Mérignac, Traité de
droit public international, pp. 91 et seq., and the authors cited by him, pp. 66
and 67.
[Turkey, by unilateral notification to the Powers shortly after the outbreak
of the European War of 1914, undertook to terminate the Turkish Capitula-
tions. The United States, and some other powers, have not acquiesced in
this attempt of Turkey to rid itself of the serious encroachment upon national
sovereignty imposed by the Capitulations; its success will possibly depend
considerably upon the outcome of the European War-Transl.]
874. Although concluded for an indeterminate period, Capitula-
tions should not be maintained in force after the state of affairs
upon which they were brought into existence has ceased to exist.
In that event, the Capitulations may be revoked by reciprocal
consent of the parties. In the absence of such agreement, the
state where the Capitulations are in force has the right to annul
them and to demand their revocation before a competent inter-
national court.
This rule is founded on the principle of the tacit condition precedent which
is the foundation of conventional law (see Rule 835). When the presupposed
fact, which presents the characteristics stated in rule 835, and constitutes the
main object of the convention happens to disappear, the convention must be
364
INTERNATIONAL LAW CODIFIED
annulled. The presupposed fact which legitimates Capitulations is the ab-
sence of legal guaranties, due to a lack of civilization, which makes it indis-
pensable, for the security of persons and property and for the administration
of civil and criminal justice, to apply theinternational system of Capitulations.
according to which, in derogation from local law, the exercise of the power of
jurisdiction is granted to the state to which the persons are attached, either as
citizens or dependents. Now, when the presupposed fact, lack of civilization,
disappears in a given country, the Capitulations no longer have any raison
d'être. This was observed, with reference to Japan, which was still under the
system of Capitulations, in our second edition, 1898 (rule 748).
That coun-
try, having made great progress toward raising itself to the level of the civilized
states of Europe, was justified in bringing about the revocation of the Capitu-
lations. At present, that right is extended to Japan by all civilized states.
The same thing occurred in the Christian countries which formerly were part
of the Ottoman Empire, where Capitulations ceased to be in force when they
were recognized as independent states by the treaty of Berlin of July 13, 1878.
TREATY OF PROTECTORATE
875. A treaty of protectorate is one by which a weak or uncivil-
ized state, which assumes the condition of a protected state, and a
powerful state, which assumes the position of a protecting state,
establish by common agreement the conventional limitations upon
the exercise of their respective rights of sovereignty in international
relations.
876. Whether concluded by voluntary request of one of the
parties or imposed by force, the treaty of protectorate can be
valid only when there exists the freedom of consent required for
the validity of treaties.
It is valid in regard to third powers only after diplomatic notifica-
tion and when not opposed by any of the powers, in which case
it becomes effective from the day of its notification.
Compare Arts. 34 and 35 of the Treaty of Berlin of February 26, 1885.
877. The treaty of protectorate can be effective only if the
limitations upon the exercise of the rights of sovereignty are de-
termined in a certain and unequivocal manner. Like any con-
vention limiting the free exercise of the rights of sovereign states,
it must be strictly interpreted and in the sense least unfavorable
to the liberty of the protected state.
In every doubtful case, the rules relating to the interpretation
of the limitations upon the liberty of persons must be applied.
878. The limitation upon the exercise of the rights of sover-
eignty established through a protectorate may be applied only
SPECIAL TREATIES
365
to rights concerning the international personality of the protected
state, that is, the capacity to conclude treaties, to assume inter-
national obligations, to maintain diplomatic relations in its own
name, and do any other act manifesting the international person-
ality of the state.
879. No treaty establishing a protectorate can validly seek to
impose any form of political, economic or administrative depend-
ency on the protected state, which implies a limitation of its inter-
nal sovereignty by placing it in the condition of a semi-sovereign
state, thus constituting a relation of vassalage with the intention
of effecting the conquest, submission and annexation of the pro-
tected state.
A protectorate properly speaking should have for its object protection, de-
fense and assistance on the part of the protecting state, in order to encourage
the development of civilization in the protected state and to represent that
state in its relations with other states. A treaty establishing a protectorate,
strictly speaking, may merely modify the international personality of the pro-
tected state, leaving its sovereign free and autonomous in the exercise of his
functions within. On the contrary, when the protected state is subject to the
suzerainty of and political dependency upon the protecting state, the protecto-
rate serves merely to cover the annexation and subjection of the protected
country.
The relations established by the treaty of December 17, 1885, between the
French Republic and the Queen of Madagascar were always given the name of
protectorate; but the final outcome sanctioned by the law of August 6, 1896,
which declared the island of Madagascar and the dependent islands to be
French, shows what the true character of the French protectorate was.
See, on the question of protectorates: Despagnet, Essai sur les protectorats;
Wilhelm, Théorie juridique des protectorats, in Journal du droit international
privé, 1890, p. 204; Pic, Influence de l'établissement d'un protectorat, in Revue
générale de droit international public, 1896, p. 613, and the works cited in the
notes; Catellani, Nota critica sugli ultimi studi sul protettorato in Rivista italiana
per le scienze giuridiche, v. XXIII, fasc. I, and the authors cited by him;
Fiore, Diritto internazionale pubblico, 4th ed., Del protettorato coloniale, v.
2, p.
620; Oppenheim, International law, I, $ 92.
880. A treaty establishing a protectorate, when properly con-
cluded, modifies the political constitution of the protected state,
in the sense that it modifies its international personality.
The consequences of a protectorate relation upon the modifica-
tions in the powers and functions of the state in its relations with
foreign governments should be subject to the rules that apply to a
change in the constitutional law.
881. Acts performed by the protected state prior to the estab-
lishment of the protectorate, which have given rise on the part of
2
366
INTERNATIONAL LAW CODIFIED
third states to perfect rights legitimately vested, continue to be
operative, save when clearly incompatible with the new condi-
tions arising out of the protectorate, and so long as their legal
value has not been destroyed in conformity with the rules of
"common” law, or they do not become extinguished by the
expiration of the term of their duration.
EFFECTS OF TREATY ESTABLISHING A PROTECTORATE
882. A treaty, properly concluded, establishing a protectorate
must be deemed binding between the parties until revoked.
Both parties therefore must fully execute the obligations contracted
notwithstanding the fact that the execution may be considered
onerous or humiliating.
The protected state, however, may bring about the suspension
of the treaty by submitting its demand to the decision of a tribunal
of arbitration and observing the rules of "common” law relative
to the suspension or revocation of treaties.
883. Should either party avail itself of the right to suspend the
treaty establishing a protectorate, the effects thereof with regard
to third powers ought to be determined in accordance with the
rules of "common" law relative to the suspension or denunciation
of a treaty before its regular expiration.
884. The legal import of the international acts accomplished
both by the protected and the protecting state must be determined
in accordance with the stipulations of the treaty and in conformity
with the rules of “common” law.
TREATIES CONCERNING SPHERES OF INFLUENCE
885. The object of a treaty concerning spheres of influence in
uncivilized countries is to determine the portion of territory occu-
pied by the natives with respect to which one of the signatory
states may develop its colonizing activity without interference or
objection on the part of the other.
In order to set out precisely the substance of this sort of convention, we
cannot do better, we believe, than refer to the text of the treaty concluded be-
tween Great Britain and Portugal on June 11, 1891, defining their respective
spheres of influence in Africa. After having fixed (Arts. 1-7) the boundary of
their respective spheres, the two states define their rights as follows:
SPECIAL TREATIES
367
Art 8. "The two Powers engage respectively not to interfere in matters
relating to the sphere of influence reserved to the other by articles 1 to 6.
Neither of the two Powers shall acquire territory, conclude treaties, accept
1 sovereign rights or protectorates in the sphere of influence of the other. It is
understood that corporations or individuals, citizens of one of the Powers,
can enjoy sovereign rights in a sphere of influence reserved to the other only
with the consent of the latter Power."
886. Treaties concerning spheres of influence may be considered
as designed merely to determine the personal obligations assumed
by the contracting parties.
The delimitation of the respective spheres of influence between
two contiguous colonizing states may, therefore, be considered as
a guide to determine the normal development of their respective
activity and to delimit the domain within which they may exercise
their initiative with regard to uncivilized tribes in conformity
with the principles of “common” law; but it has no value in
ascribing territorial rights to either of the contracting parties.
887. Treaties concerning respective spheres of influence must
be notified to third powers, so as to give them an opportunity to
advance their claims and rights, and may be deemed valid only
under the conditions established in the treaty of Berlin of 1885 for
the notification of territorial occupations.
Treaties relating to spheres of influence are effective only for the contracting
parties. As to third powers, they must be regarded as res inter alios acta.
Nevertheless, it is incumbent upon third powers, by reason of the comitas
gentium, to respect these treaties, allowing states that have concluded them
time to accomplish their civilizing mission undisturbed.. One must admit, on
the other hand, that colonizing states cannot, by reason of the treaty estab-
lishing a sphere of influence (hinterland), be considered as authorized to act
with entire liberty, and, on pretense of colonization, to prepare for conquest.
See infra, rules 1093 et seq.
TREATIES OF SUZERAINTY AND VASSALAGE
888. A treaty of suzerainty is one concluded between a civilized
and an uncivilized state, in which the former imposes on the latter
(which accepts it) every obligation of mediate or immediate de-
pendency in the exercise of its rights of sovereignty within the
state. When the stipulations imply the submission of the sover-
eign powers of the uncivilized state to the supreme jurisdiction and
authority of the civilized state, the treaty is called a treaty of
vassalage.
368
INTERNATIONAL LAW CODIFIED
Under the foregoing names we may rank all the different forms of conven-
tion which, at this time, are a result of the so-called colonial policy and
which aim in substance to carry out so-called peaceful “conquests," but whose
purpose, in reality, is to restore that anomalous form of state without com-
plete autonomy within, denominated semi-sovereign state, destined to tempo-
rary existence and unceasing struggle. This has always been the inevitable
historical consequence of semi-sovereignty.
These categories of convention are subject to so many gradations that it is
difficult to classify them and to apply to them general and uniform principles.
889. Since it implies a kind of alienation of the internal rights
of sovereignty and a substitution in the exercise of these rights of
the suzerain state, the treaty of suzerainty and vassalage can be
valid only when the subject state has freely assented to it and the
state has not unduly resorted to force, contrary to the princi-
ples of international "common” law, to compel its consent.
890. The treaty of suzerainty, so long as it subsists and is in
force, is of value in determining the respective status of the signa-
tory states as regards the exercise of sovereign powers, and particu-
larly of the legislative, judicial and administrative powers, each
of which must be exercised by the suzerain and vassal states in
conformity with the stipulations of the treaty.
Compare rules 110 et seq.
891. Although the state of affairs resulting from the dismember-
ment of sovereignty and the dualism of empire and sovereign
power should be considered abnormal, yet the treaty which es-
tablished it must be considered as valid so long as it subsists, and,
so far as the exercise of sovereign powers are concerned, must pro-
duce the same effects as those which arise from modifications in the
constitutional law of the state.
Such effects must be admitted, not only by the contracting
parties, but also by third powers, which have de facto without
protest recognized the state of affairs established by the treaty.
892. The rules relating to collective intervention to safeguard
respect for legal principles according to “common” law may be
applied to treaties of suzerainty and vassalage imposed by force
and in violation of the principles of international law.
Compare rule 559.
893. Collective intervention is especially justifiable when the
suzerain state attacks by force the international existence of the
vassal state by transforming the relation of suzerainty into actual
annexation.
SPECIAL TREATIES
369
There is no need to lay down more complete rules, which the subject
might require, in order to determine the legal value of treaties of suzerainty,
because with respect to this exceptional relation, which has initiated a new
phase in the relations of civilized states with barbarous and uncivilized tribes,
there exists the greatest confusion, caused by the social and international
necessity of expansion and by the current of contemporary politics, which, it
is said, must aim at the peaceful conquest of less civilized countries, regard-
ing the continual increase of possessions in Asia, Africa and other barbarous
regions as contributing to the progress of civilization.
See Fiore, Diritto internazionale pubblico, 4th ed., Appendix, v. 2, Del pro-
tettorato coloniale, p. 628.
TREATIES OF CONFEDERATION
894. A treaty of confederation is one by which autonomous and
independent sovereign states establish their compact of union,
to realize a common purpose of political interest and determine
their reciprocal obligations with respect to the object of their
political union.
895. The treaty of confederation must determine and establish
between the contracting parties the rules of their conduct, and the
exercise and limitations of their respective sovereign rights, in-
ternal and external, in all matters constituting the object of the
political union or confederation.
In its international results, the treaty may be considered effect-
ive only as to states which have recognized the confederation es-
tablished by the treaty.
896. When, by the treaty of confederation, there is constituted
a central power, with special functions determined by the purposes
of the political union and with powers designed to attain these
purposes and to protect the common interests which are the basis
of the political union, and when, by consent of the confederated
states, there has been assigned to the central power thus created
an international legal capacity corresponding with the intended
purposes of the union and the development of the common in-
terests, this organization may give rise to a special form of inter-
national personality of the Confederation with respect to the states
which have recognized it.
Compare Rule 82.
A typical example of this form of political organization was found in the
Germanic Confederation, constituted by articles 53, 54 and 55 of the final
Act of the Congress of Vienna of June 9, 1815. The Confederation, as a
collective entity perfectly distinct, in the internal and external relations of
370
INTERNATIONAL LAW CODIFIED
the confederated states, had its own international personality, until dissolved
in 1866, owing to the war between the confederated states and the victories
of Prussia, crowned by the celebrated battle of Sadowa. The Confederation
had, in effect, the right to conclude treaties, to send and to receive diplomatic
agents, to make war, to conclude peace and to exercise other powers, but
always in a manner limited by the purpose of the union and without inter-
fering with the international personality of the confederated states, which
remained complete and unaffected in all matters not involving the common
interests aimed at by the treaty creating the Confederation.
897. The treaty of confederation has nothing in common with
the federative compact established between several states, united
under a political constitution and forming an association called a
federal state, federative empire, or compound state.
The federative compact bears the true character of any consti-
tutional law, and in international relations produces the same
effects as the political constitution of a state.
Compare rules 104, 105.
TREATIES OF POLITICAL ALLIANCE
898. A treaty of political alliance is one by which two or more
states, in order to realize a certain political object, determine the
conditions of their association and of their reciprocal political
or military assistance.
899. Treaties of alliance may be regarded as useful and not
contrary to the principles of justice and of international law,
whenever the association of forces is intended for the protection
of law and common interests,
900. Every treaty of alliance concluded to attain a political
object, may be considered just only when the political purpose in
view may be considered just and not contrary to the rules of com-
mon international law.
The rules that we propose are certainly not in harmony with the conception
and purpose of the alliances concluded in our time. In the present state of
affairs, since politics predominate over right, and every state ranks greater as
its strength inspires fear and respect, the conclusion of alliances with powerful
states is an inexorable necessity for governments which, aiming to assure the
riu of their policy in international life, are impelled to take advantage
of the association of forces in order to exercise influence. The fear of isolation,
which would undoubtedly lead to oppression, sometimes prompts the union
of states having very different tendencies and interests. It will suffice to men-
tion the treaty of alliance between France and Russia and the treaty between
Italy and Austria. Thus, alliances assume the aspect of veritable leagues of
SPECIAL TREATIES
371
princes and are more productive of political disturbance and disorder than they
are contributors to the protection and development of national interests. There
will come a time when states will feel that they are associated with one another,
either through the natural force of their common interests or through the noble
purpose of protecting “common” law, and then treaties of alliance will attain
their true object; but we are still far from that time. It will be necessary for
international society, instead of being, as it is to-day, organized to serve political
designs, to be transformed into a veritable society of law among the states
which enjoy the same degree of civilization. See our article under the word
Alleanza in Digesto Italiano.
901. Treaties of alliance must define exactly the object and
conditions of the association and the reciprocal and respective
obligations of the allied states, and be interpreted and executed by
both parties loyally and in good faith.
Since the justice or injustice of an alliance concluded by a treaty and the
legal value of the treaty itself depend on the political object and purpose of
the alliance, it must be considered essential that its object be well defined and
specified without ambiguity. One of the treaties of alliance concluded with
no definite object was that of September 14, 1815, between the sovereigns of
Austria, Prussia and Russia, which was called the Treaty of the Holy Alliance.
By reading the text of that treaty, it will be seen how difficult it is to determine
the object of that alliance of sovereigns.
902. A treaty of alliance, concluded with the obligation to unite
the respective military forces to repulse any armed aggression on
the part of one or more specified states, is called a treaty of de-
fensive alliance.
A treaty which, on the contrary, implies an obligation of render-
ing military assistance in case either one of the allied states wages
war upon one or more specified states is known as a treaty of
offensive alliance.
The treaty signed at Vienna on October 7, 1879, between Germany and
Austria and to which Italy adhered in 1882 has the true character of a treaty
of defensive alliance. In 1888, it was publicly proclaimed; but the complete
text of the treaty has always been kept a secret.
903. A treaty of offensive alliance even when not concluded in
view of an impending war, must be executed with absolute sin-
cerity and good faith. However, as no military alliance could be
considered binding if it should have an object contrary to inter-
national law, a treaty of offensive alliance would be inoperative,
should the allied state wish to wage war in evident disregard of the
rules of international law.
This rule, which bases the treaty of offensive alliance upon the tacit condi-
tion that no unjust war shall be waged, might lead to arbitrariness, should
372
INTERNATIONAL LAW CODIFIED
one admit on the part of the allies a wide latitude of decision as to the casus
fæderis, and every treaty of alliance would thus be rendered offensive. Good
faith compels the admission of a sort of presumption that a war waged by the
allies is not unjust, and that, consequently, the state which has assumed the
obligation to lend military assistance cannot honestly refuse to fulfill its ob-
ligation. The legal presumption of the intrinsic justice of the cause of the
allies could not, therefore, be destroyed except by undeniable proof to the
contrary.
904. Treaties of military alliance can be deemed binding only
when the casus fæderis supervenes, and while the allied state may
consider and decide, according to circumstances, whether the
casus fæderis exists or not, we must, nevertheless, consider as cul-
pable and wrongful the conduct of a state which seeks by sub-
terfuge to avoid the fulfillment of obligations assumed towards
its allies under the treaty.
See, for the non-observance of the obligations assumed by a treaty of al-
liance, the controversy between the British Government and the States General
of the Netherlands, in reference to the assistance requested by Great Britain
on the occasion of the expedition against Minorca, in Dumont, v. 7, part I, p.
398.
It is difficult in this matter to reason rigorously and to lay down rules con-
formable to the principles of law. Now-a-days political interest creates and
maintains political alliances and all that can be said is that the obligations of
the allies are as effective as the political interest which gave rise to the alliance
itself.
TREATIES OF PACIFIC ALLIANCE
905. A treaty of peaceful alliance is one in which two or more
states, desiring to attain a peaceful purpose of common interest,
lay down the conditions of their friendly and reciprocal co-opera-
tion.
906. Any undertaking that may be pursued by a state according
to the principles of international law may constitute the object
of a treaty of peaceful association.
Examples of such undertakings are the co-operative associations
established by treaty for the purpose of promoting civilization in
uncivilized countries, for suppressing the slave trade where it is
still carried on, for laying down the basis of a customs union, and
in general any form of association which aims to unite forces
towards better achieving some civilizing mission and co-operating
for the progressive and successful development of justice in inter-
national life.
SPECIAL TREATIES
373
1
Treaties of pacific alliance, as we understand them, ought in a more or less
remote future to replace those of political alliance, especially between
states on the same continent which have attained the same degree of
civilization. It will be necessary, however, for the system now predominating,
where politics prevail over right and justice in international life, to make room
for one more rational and useful, subordinating politics to the principles of
justice. The conception of the solidarity of interests of civilized peoples, the
necessity of the international division of labor and the indissoluble bond be-
tween the well-being and prosperity of all peoples, and the rational and pro-
gressive development of common interests in international life must be better
understood. Then the importance of co-operative association will be realized
and it will be admitted as a positive principle that the sound and permanent
interests of any people cannot be distinguished from those of others.
An example of peaceful association for the development of the economic
industrial and commercial interests of the associated states is found in the
German Customs Union, called Zollverein. Compare Calvo, Droit interna-
tional, v. 1, $$ 79, 80. For the other forms of union see Oppenheim, Interna-
tional law, v. I, p. 622.
Compare rule 867.
TREATIES OF COMMON INTEREST
907. Treaties of common interest include all the special con-
ventions by which a greater or smaller number of states agree to
regulate their legal relations in matters of common interest by
uniformity of law.
908. Governments must recognize the evident reciprocal utility
of regulating by treaty relations of common interest, in order thus
to establish a uniform law and to effect the progressive develop-
ment of the legislative work essential to translate into actual fact
the legal community of civilized states.
909. Treaties of common interest should follow the progres-
sive development of the common needs which proceed from the
development of industry, commerce, international exchanges, art,
and division of labor, and must seek to establish law regulating
public and private relations and the protection of the rights of
states and of their respective citizens.
910. The subject matter of treaties of common interest may be:
(a) The establishment of uniform and reciprocally binding
rules of private international law, fixing the principles according
to which the authority of each law is to control with respect to
foreigners, persons, property, the modes of acquiring and trans-
ferring property by act inter viros or by will, procedure, the juris-
diction of the courts when a foreigner is plaintiff or defendant, the
374
INTERNATIONAL LAW CODIFIED
order of proceedings to which foreigners are parties, and the
execution of the judgments rendered by foreign courts;
(6) The regulation of the numerous relations arising out of
the international development of industry, commerce, art and
division of labor;
(c) The facilitating of international exchanges by organizing
in an uniform method postal correspondence, telegraphic service,
the legal quotation of money exchange, weights and measures, and
international railroad transportation;
(d) The legal protection of foreigners by recognizing the inter-
national property in trade-marks and commercial marks, designs
and products of intelligence and art;
(e) The simplification of legislation regulating the relations
arising out of trade, by establishing a uniform law governing bills
of exchange, the recognition of foreign corporations, the regulation
of general average, bankruptcy, etc.;
(f) The rendering of mutual assistance, so far as it may contrib-
ute to promote the respective material and moral interests.
In this category of treaties of public interest fall conventions concluded for
the protection of public health, and to prevent the spread of contagious dis-
eases, etc. One of the conventions, inspired by the eminently lofty purpose of
safeguarding public morality is that of May 18, 1904, concluded with a view
to prevent the traffic in women and young girls, victims of the fraud of pro-
curers who took them abroad for purposes of prostitution. This convention
for the suppression of the white slave traffic was signed by Belgium, Den-
mark, France, Germany, Holland, Italy, Norway, Portugal, Russia, Spain,
Sweden, and Switzerland. Austria and Brazil later adhered to the treaty by
protocols of January 18, and May 12, 1905. The signatory states agreed to
institute measures of surveillance for the repression of the shameful traffic.
See Collezione dei trattati, v. XVII, pp. 317, 492 and 511, and Italian decree of
April 8, 1905, No. 171.
911. Treaties of common interest will increase in usefulness in
proportion as the co-operating states grow more numerous.
When such treaties are concluded by states assembled in Con-
gress or Conference, they acquire the true authority of interna-
tional statutes.
912. Treaties of common interest are strictly binding between
the states that have signed and ratified them or have adhered
thereto.
Those concluded by states assembled in Congress or Conference
must also be held binding only on the signatory or adhering stateş
SPECIAL TREATIES
375
which have ratified them, and must, as to their observance, be
considered under the collective guaranty of all the signatory
states. They should, however, be considered as the most exact
and correct expression of the rules of law, even with respect to
states not concerned therein, and as having the same authority
as any rule of justice.
Legislative work in international society cannot be carried out otherwise
than through treaties, by which the states that sign them determine the rules
of their relations and conduct for the future, formally engaging to consider
them as binding and to recognize their imperative authority. It is natural
that the legislative work that is carried out through treaties should have an
importance all the greater as the subscribing states increase in number. It is,
moreover, evident that when the rules which in the future are to serve as the
basis of the conduct of states have been laid down in a Congress, they must
have more authority and indirectly exercise an influence even on the states
that have not taken part in the Congress. For, indeed, those states must not
only feel induced to adopt such rules by adhering to the treaty, but must also
consider themselves as bound to recognize therein the authority that the prin-
ciples of justice solemnly acknowledged must always have in international life.
States assembled in Congress which determine the rules of their conduct for
the future consequently fulfill a mission analogous to that of the legislature.
The authority of the rules on the rights of belligerents in maritime war, laid
down at the Congress of Paris of 1856, those established in the Brussels Anti-
Slave Trade Conference of July 2, 1890, and others adopted at The Hague
by the states assembled in Congress, have undoubtedly a much greater au-
thority than those relating to copyright or to the unification of the metric sys-
tem.
EXTRADITION TREATIES
913. A treaty of extradition is one by which two states settle
upon the rules for the extradition of those who have been accused
and convicted of offenses committed in one of the states, and have
taken refuge in the other.
914. An extradition treaty, duly concluded, determines the
reciprocal legal obligation of the contracting states to deliver up to
one another criminals who have taken refuge in their territory
and are accused or convicted of one of the crimes and offenses
specified in the convention, and subject to the conditions named
in its stipulations.
The obligation to deliver up to one another fugitive criminals must in gen-
eral be considered as based on the duty of all states to co-operate in punishing
every grave offense and to facilitate the proper administration of criminal
justice. The duty, however, cannot be converted into a true legal obligation
except through an extradition treaty.
Compare rules 590 et seq.
376
INTERNATIONAL LAW CODIFIED
915. States should conclude extradition conventions in order
thus to render effective the duty of co-operating for the repression
of offenses, on the basis of a perfect reciprocity. They should
adopt provisions best calculated to facilitate the punishment of
offenses and the administration of criminal justice, by including
in the treaty any offense which by its gravity is punishable by a
penalty restricting personal liberty for more than three years,
excepting only political offenses and those connected with them.
916. The legal obligation of extradition, so far as it is based on
treaty, exists only from the day the convention becomes operative
and applies only to offenses specifically stipulated in the treaty
and committed after it has come into force.
We stress the legal obligation that has a treaty as its basis. As to the right
of the sovereign to deliver up offenders, independently of treaty, see rules 591
et seq.
917. The stipulations of an extradition treaty may be restric-
tively interpreted whenever the sovereignty of the state intends
to avail itself of its power not to surrender a criminal who has
taken refuge in its territory, unless it is bound to deliver him up
in conformity with the provisions of the treaty.
The stipulations may, on the other hand, be interpreted broadly
when the state, taking a better view of its duty of assistance for the
punishment of serious offenses wherever committed, seeks to co-
operate in the administration of criminal justice rather than to
favor immunity.
All this depends on the manner in which the duty of international justice
and mutual assistance to repair the social damage arising from offenses that
have no political character is understood.
If one accepts the more just view, namely, that the fugitive criminal, when
escaping from the country where he committed the offense, does not acquire
any right to immunity, and that the sovereignty of the state where he took
refuge has the power and interest to punish him or deliver him up to his natural
judge, so that, by undergoing the punishment he deserves he may expiate the
social damage he has caused, it follows that the extradition treaty, in so far as
it specifies the cases in which surrender is obligatory, cannot be considered as
limiting the power of the territorial state to deliver up the individual accused
of a common law offense. It also clearly follows that the state may give an
extensive interpretation to the provisions of the treaty.
It is, therefore, unnecessary to observe literally the terms of the extradition
treaty. The observance of the principles of justice depends, in international
relations, on the manner in which their value is understood.
[In the United States, inasmuch as a treaty is the supreme law of the land,
a municipal court acting as a committing magistrate cannot legally order the
SPECIAL TREATIES
377
surrender of a fugitive to a foreign country on requisition for a crime not men-
tioned in the treaty, or in any case in the absence of a treaty. The United
States does not make demands for the surrender of fugitive criminals in the
absence of a treaty' or for any other than the enumerated offenses. See Moore
on Extradition, v. I, § 42—Transl.]
Compare: Fiore, Effetti internazionali delle sentenze penali dell' estradizione,
Turin, 1877, and Traité de droit pénal international et de l'extradition, trans. by
Ch. Antoine, Paris, Pedone-Lauriel, 1880.
In the system of Italian legislation, extradition is not considered as based
on treaty (see note under rule 591).
We consider the true principles in this matter supported in article 4 of the
extradition convention between Italy and Uruguay of April 14, 1879, which
reads as follows:
“The high contracting parties consider as enunciative and not limitative
(the list of crimes) and therefore recognize the power to request and to grant,
by reciprocity, the extradition of individuals accused or convicted of other
crimes not enumerated in the present convention, provided they are such
upon which the legislation of the two countries visits a corporal or infamous
punishment. In that case, the action of the two governments is discretionary
and optional."
CONVENTIONS OF WAR AND TREATIES OF PEACE
918. Conventions of war are those concluded between belliger-
ents to regulate an act or relation existing between them during
war.
A treaty of peace is a convention by which the belligerents stipu-
late the conditions upon which they terminate the war.
The rules governing these conventions and treaties will be developed in
Book IV.
OBLIGATIONS ARISING IN THE ABSENCE OF CONVENTION
919. International obligations may arise between states in the
absence of any convention, by reason of acts accomplished by one
of them or of relations arising out of a given state of facts for which
they are responsible.
920. A state which, by unilateral act, has assumed an interna-
tional obligation is bound to carry out what it has voluntarily
undertaken to do or not to do, so long as it does not revoke the
act by which it bound itself.
Examples of obligations arising out of a unilateral act are not lacking.
The Italian legislature, by article 211 of the Merchant Marine Code, has
assumed the international obligation to abstain from the right of capturing
the merchant ships of an enemy, with respect to all states which, when the war
378
INTERNATIONAL LAW CODIFIED
breaks out, declare before the commencement of hostilities that they also re-
nounce that right with respect to Italian merchant ships.
Thus, the conventional obligation to consider the private property of their
respective citizens inviolate, contracted between Italy and the United States
by the treaty of February, 26, 1871, article 11, is assumed, by unilateral act,
with respect to all states which, before commencing hostilities with Italy,
shall have declared their intention to consider Italian property on the high
seas immune from capture.
It is evident that the unilateral obligation assumed by the Italian
govern-
ment towards all states by reciprocity has as much value as that arising out of
the treaty with the United States.
The obligation assumed by Italy, by the law of May 13, 1871, concerning
the prerogatives of the Sovereign Pontiff and of the Holy See, with respect
to all states that have taken cognizance thereof, has, as regards those states,
the same legal value as an international treaty concluded with them and im-
plies the obligation to observe the rules sanctioned by that law, so long as
Italy, as is its privilege, does not repeal the statute.
Compare rule 25.
The same might be said of the rules of international law relating to the exe-
cution of foreign judgments, embodied in the Italian Code of Civil Procedure,
title XII, articles 941, et seq. The resulting obligation of the Italian government
to assure the execution of the judicial decisions of foreign courts in its territory
will last so long as the Italian Code of Civil Procedure is not amended or
repealed.
921. An international obligation, independently of any conven-
tion, may arise from a legal or illegal act of a state, which should
be considered as obligated towards private citizens in all matters
arising out of such acts as affect property relations, according to
international law.
Some authorities admit that obligations between state and state may arise
out of quasi-contract. See, among others, Heffter (Droit internat., § 100)
citing in support of his opinion Neumann, Jus princ. priv. de pact. et contract,
$S 824 et seq.
He gives as an example the payment of money not due, the
administration of the affairs of a state without opposition by others, and the
acceptance and administration of the guardianship of a minor sovereign.
It does not really seem to us that the principles applicable to civil obliga-
tions derived from quasi-contract find a just application with regard to inter-
national obligations between states. It may happen that the representative
of a state has made a payment not due and that this gives rise to an obligation
of the payee state to make restitution; but that obligation has not the true
character of an international obligation. It cannot, indeed, be maintained
that any obligation of a state has the character of an international obligation
merely because the subject of the obligation is a state. The state, as a matter
of fact, has a dual personality, a political and a legal personality, and therefore
the capacity to assume an international obligation and an obligation according
to civil or private law. The international obligation of the state, properly
speaking, is that which affects its international personality, which concerns it as
a person of the Magna civitas and is based on international law. We do not deny
that the state may be bound by quasi-contract as well as by contract; but the
SPECIAL TREATIES
379
obligation arising out of contract or quasi-contract gives rise to a contractual
or quasi-contractual obligation, and not to an international one. That rela-
tion affects the legal personality of the state, and not its international per-
sonality. The obligation must, consequently, be fixed and governed in accord-
ance with the principles which relate to obligations arising out of contract and
not those derived from a treaty or from acts of the state, which may give rise
to international obligations independently of express and written conventions.
The international obligation may arise from a lawful act, when the sover-
eignty, in the lawful exercise of its powers within the state, has injured a
foreign state or its citizens. In such case, the international obligation of the
state to make amends for the damage arises, and it is founded on its interna-
tional responsibility, which affects its international personality. This may
occur, for example, during a civil war or a revolution within a country, when
the sovereign, in the legal exercise of his powers, injuries foreign states or
individuals.
922. Any act committed by a state in violation of the principles
of international law should be considered unlawful on the part of
the culpable state. In such case an international obligation arises
on the part of that state to repair any injury caused by the act.
Compare rules 596 et seq. on the international responsibility of the state.
CONVENTIONS BETWEEN THE HEAD OF THE CHURCH AND THE STATE.
CONCORDATS
923. The name “concordat” is given to a convention concluded
between the head of the Church and the State to regulate their
relations and the exercise of their respective powers in regard to
certain matters of common interest.
Although the relations between the State, as a political institution, and the
Church, as a religious one, should be regarded as established on a basis of
reciprocal independence, yet the supreme ecclesiastic power, in so far as it lays
down the rules of discipline and supervises the exercise of worship, necessarily
enters into relation with the territorial law; and since the two powers, in the
development of their functions and the exercise of their respective rights,
come into contact with one another, there is no reason why they should not,
in common agreement, determine the rules governing their relations by a
convention, which, by reason of its special object, is called a "concordat.”
Compare rules 723, 729, et seq.
924. The concordat has not the character of a treaty, but of an
agreement concluded between two independent powers on a matter
of public interest. The general rules relating to treaties may,
however, by analogy be applied to such an agreement in so far as
the substantial requisites for the validity and execution of the
assumed obligations are concerned.
380
INTERNATIONAL LAW CODIFIED
Compare rule 731.
It being granted that the term treaty may be ascribed only to the written
agreement of a state, which is a political institution and which, by that act, as-
sumes an obligation towards another state, it is evident that it is not possible
to denominate as a treaty an agreement concluded between one reigning house
and another to regulate their personal interests, or between a government and
some association for an object of public interest; nor can the name of treaty
be assigned to an agreement between the head of the Church, which is not a
political institution, and the head of the State, concerning their functions in
their reciprocal relations.
It is equally clear that since every form of obligation must have certain req-
uisites of substance and form, that are indispensable both in an agreement
concluded between private persons and between states, such requisites are
likewise essential in the conventions drawn up between the head of the Church
and the head of the State.
Moreover, since the object of such agreements is always a matter of public
interest, it is logical to apply to them by analogy the general principles of law
which govern treaties rather than those which apply to contracts between
private persons. It should be noted, however, that in applying these princi-
ples, it would not be correct to admit an exact comparison between the obliga-
tions assumed by virtue of a treaty between states and those derived from a
concordat concluded between the Pope and the chief executive of a state.
Compare rule 734 and the note under rule 735.
[The Nicaraguan Mixed Claims Commission in passing upon a claim
brought by the Bishop of Nicaragua for violation of the Concordat entered
into by the Republic of Nicaragua and the Holy See in 1861, held that the
Concordat could not be regarded as an international treaty, but as a contract-
ual arrangement which ceases to bind either party if one of them repudiates
the obligation. See 9 American Journ. of Int. Law (Oct., 1915), page 869.-
Transl.)
925. A lawful object of a concordat is the regulation of the pub-
lic functions of the head of the State and the head of the Church,
provided this does not involve a violation of the independence of
the two powers in the exercise of their respective international
rights.
Compare rules 724 et seq.
Originally concordats were compromises between the Pope, as spiritual head
of the Church, and the sovereign, as head of the State, rather than a regulation
of their respective public functions on the basis of their reciprocal indepen-
dence.
Beginning with the first Concordat concluded at Worms in 1122 between
Pope Calixtus II and Henry V, the Emperor of Germany, up to those concluded
in our time, it will be seen that they sometimes represent an invasion of the
political authority with a sacrifice of the independence of the church, and
sometimes reciprocal concessions and compromises. Article 3 of the Concordat
of 1801 between the Pope and Napoleon shows most clearly the nature of such
agreements.
Compare: Orlando, Sub Concordato, in 'Digesto italiano; Calvo, Droit
internat., 4th ed, § 1605; Bluntschli
, Droit internat. codifié, rule 443; Bonfils,
Manuel de droit international public, S$ 896 et seq.
SPECIAL TREATIES
381
926. When duly concluded, the concordat must be deemed
binding between the parties that have signed it, until revoked.
Nevertheless, in so far as it regulates the relations of Church and
State in matters of public interest, it must be subject to the political
constitution and to the public law of the state in everything in-
volving its validity, authority and revocability, and it must bear
the consequences which arise from changes which may occur in the
political constitution with respect to matters of public law.
Taking into account the preceding rule and the true nature of the conven-
tions concluded between the head of the Church and the sovereign of the
state, it follows that any difference as to the legal value of the concordat, from
the viewpoint of its legal efficacy in regulating the relations between the ec-
clesiastical and the civil authorities must be decided in conformity with the
constitutional law of the state. One should, in fact, determine according to
that law the scope of the concordat and the limitations upon the capacity of
the state to conclude conventions with the head of the Church and to regulate
their mutual relations.
It is also clear that since the changes which have occurred in the political
constitution of a state imply necessary changes in all the rights and powers
that are inconsistent with the constitutional law (including concordats, in so
far as they imply the exercise of public powers and functions), it must be ad-
mitted that the promulgation of new constitutional law implies the abrogation
ipso jure ipsoque facto of incompatible conventions previously concluded.
Moreover, since concordats do not give rise to international obligations
properly speaking, such as those that arise from treaties, one cannot admit
with respect to concordats, as in the case of treaties, the principle of succession
in case of annexation, or of the constitution of a new state by uniting small
states (compare rules 157 et seq.) In such matters, indeed, it is proper to decide
any controversy by applying the constitutional law and seeking what influence
that law may have on the relations arising out of conventions concluded prior
to its coming into force. In principle, it cannot be maintained that, by a change
in the international personality of the contracting state, any convention con-
cluded between the church and a state, to which a new state has succeeded,
should be considered extinct. It cannot validly be contended, in fact, that
because of the new political constitution of a state, one should not respect
perfect and vested rights acquired under prior public conventions, when the
respect of those rights is compatible with the new constitution, and when the
prior convention or concordat has not been expressly abrogated. Everything,
therefore, should depend on the nature and object of the agreement and on its
compatibility or incompatibility with the new political constitution of the
state.
We cannot here develop our ideas any further, because the question really
involves public municipal law.
Compare: Scadutto, Diritto ecclestiastico vigente in Italia, 2d ed., v. I, pp.
3-5, 7-82, 110-113, and Orlando, Sub. Vº Concordato in Digesto italiano and the
authors cited by him in the bibliography; Merlin, Répertoire, Sub Vº Concordat.
927. Any matter implying a violation of the international rights
of man or of the church cannot be the object of a concordat.
382
INTERNATIONAL LAW CODIFIED
In that respect, the efficacy of the concordat must be determined
in conformity with the principles of international law and those
which should govern the validity of conventions.
The legal value of a concordat, as regards the international rights of man
and of the church, must be determined in conformity with the principles of
international law. It cannot be claimed that the sovereignty of the state
may not grant privileges to a certain religious faith or certain powers of juris-
diction to ecclesiastical authorities, or, on the other hand, that the head of the
church may not agree to the intervention of the political authorities in the
exercise of their powers, in so far as he regulates ecclesiastical discipline and
worship. But these are matters of public municipal law, and the efficacy of
the agreements depend on the political constitution of the state.
If, however, the two powers should wish, through agreements concluded
with one another, to interfere with the right of freedom of worship, as an in-
ternational right of man, and if this should result in a struggle which, by its
form and intensity, could be considered as a disturbance of the international
society, collective intervention would be justified, in order to protect rights
thus infringed and put an end to such a manifest violation of international law.
Such would be the case if, through a concordat, a state sought to legitimate
the violations contemplated in rules 652 and 653. The same would be true if
the sovereignty of the state in any way whatever imposed on the head of the
church the obligation to renounce, by concordat, his international rights
(rules 73, 706, 727 et seq.). In that case third states would secure the right
to intervene and be protected (rules 561 and 732.)
BOOK THREE
PROPERTY IN ITS RELATIONS WITH INTER-
NATIONAL LAW
GENERAL PRINCIPLES
928. International law must regulate the acquisition, enjoy-
ment and exercise of rights over corporeal and incorporeal things,
whenever the interests of international society are involved.
929. No right over property can be considered as absolute and
unlimited; but it must, so far as its acquisition, enjoyment and
exercise are concerned, be regarded as subordinated to the higher
principle that it does not entail any injury to the general interests
of international society.
Whatever the nature of the property which may constitute the object of
the right, its titulary or owner must, for the acquisition, exercise and enjoyment
of such right, submit to the limitations which have their origin in the exigencies
of life in society and in the superior necessity of not violating the general
interests of international society.
International law must regulate every relation which operates in the Magna
civitas. Therefore, it must be admitted that international law must govern
the acquisition, enjoyment and exercise of every right over things, in so far as
the act performed by the titulary or owner of the right may be related to the
general interests of other states or to the collective interests of peoples.
930. Property, with respect to its legal condition, may be divided
into the following classes:
(a) Common, according to natural law;
(6) In the dominion or subject to the supreme power of the
state, according to international law;
(c) Public and corporeal or incorporeal, according to the munic-
ipal laws of each country;
(d) Private and belonging to individuals or to legal persons,
who must be deemed owners or possessors according to civil law.
384
TITLE I
OF COMMON PROPERTY
THINGS WHICH MUST BE DEEMED COMMON
931. Common property is that which everybody may enjoy,
and which cannot be the object of an exclusive right on the part
of the state or of individuals. ,
Examples of common property are:
(a) The high seas;
(b) Navigable international rivers;
(C) Straits which unite two connecting seas.
932. Any state that should assert an exclusive right over com-
mon property or should commit an act of dominion over it,
would violate international law, and its arbitrary acts with respect
thereto could not be legitimated by immemorial usage, by pre-
scription, or by any other title whatsoever.
LIBERTY OF THE HIGH SEAS
933. The high seas are constituted by all the waters that lie
beyond the jurisdictional limits of any state. No part of the high
seas may be dominated by any state; they must be considered as
open to the common use of the whole world. Every one, there-
fore, may freely use them in all their extent, observing, how-
ever, the rules of international law that must govern the enjoy-
ment of common property and the exercise of rights over it.
The liberty of the high seas implies the liberty of navigation
and of freely taking submarine products by fishing.
It is the duty, however, of those who navigate the sea to comply
with the international rules relating to navigation.
The rules relating to navigation, either on the high seas or in
territorial waters, will be discussed hereafter.
934. Any claim of dominion over any portion whatever of the
385
386
INTERNATIONAL LAW CODIFIED
high seas, and likewise any exercise of jurisdiction of vessels of
war over ships that do not belong to the navy or to the merchant
marine of the state, subject to the special stipulations of treaties,
must be considered contrary to the absolute liberty of the high
seas.
Some publicists have maintained that as any vessel of war dominates the
waters that surround her within gun shot, we might hold that within this per-
imeter, waters should be deemed in the legal possession of the vessel. But this
opinion is not admissible, according to true principles, since common property
absolutely lacks the possibility of being either as a whole or in part the object
of a right. Hence no right over the whole or over a part of such common
property may be acquired or retained by force.
935. No war vessel on the high seas can, except on serious and
well-founded grounds, compel a ship sailing under the flag of the
state to which she belongs to stop in order to verify her nationality
or to subject her to an examination by megaphone. Any act of
sovereignty and jurisdiction unduly exercised must, in general, be
considered as a violation of the absolute principle of the liberty of
the seas and involve the responsibility of the commander of the
war vessel.
INQUIRY INTO THE NATIONALITY OF A VESSEL
936. The flag carried by a merchant ship must be considered
prima facie as the distinctive token of its nationality and, conse-
quently, of the jurisdiction to which she must be deemed subject.
A war vessel may, by hoisting her flag to indicate her nationality,
request the merchant ship she meets to hoist her own flag, and
compel her to do so in case of non-compliance by firing a blank
shot, and this failing, a cannon shot, but without seeking to hit
her.
937. When the war vessel is in serious doubt as to the nationality
indicated by the flag, she may, in order to verify the point, call the
ship to parley, requesting her to answer the questions put to her
by megaphone or otherwise, but without compelling her to deviate
from her course.
If, following this interpellation, the commander of the war
vessel is still in serious doubt as to the nationality indicated by the
flag, he may compel the vessel to stop in order to verify her
papers; but he is bound, both in compelling her to stop and
1
387
COMMON PROPERTY
verifying her papers, to proceed with moderation and tact as
indicated hereafter (rule 947).
The nationality of a ship always determines the jurisdiction to which she is
subject and the privileges she must enjoy by reason of the fact that she belongs
to this or that state. It must, therefore, be conceded as a rule of “common
law that every ship must have a nationality which she is bound to establish.
Consequently, when, owing to exceptional circumstances, there is ground to
doubt the nationality asserted by the flag, it ought to be permissible to pro-
ceed to the verification of her nationality, but with moderation and without
abuse of the power.
Thus, for instance, within the zone fixed by the General Act of Brussels of
July 12, 1890, the right of search is reciprocally admitted over all vessels be-
longing to the nationality of the signatory or adhering states, in order to ascer-
tain whether such vessels are engaged in the slave trade. Nevertheless, this
right cannot be exercised with respect to French ships, as France, in ratifying
the Act of Brussels, made reservation as to articles XXI, XXII, XXIII, XLII
and LXI. Now it is evident that in order to decide whether or not a ship may
enjoy the privilege of French ships, it is necessary to ascertain whether or not
the ship met within the zone where search is allowed, has French nationality,
and in that regard the mere fact of flying the French flag cannot be considered
decisive. It is necessary that she present her sea-letter or passport (Acte de
francisation) which determines her nationality, and therefore the right of veri-
fying that document should be conceded when the nationality displayed by
the French colors may be considered doubtful.
Compare the instructions of 1867 to French cruisers for the verification of
nationality and the similar instructions to British cruisers in 1891, with respect
to their attitude towards ships flying the French flag. The latter instructions
were communicated December 31, 1891, to the Prince de Chimay, Belgian
Minister for Foreign Affairs.
VISIT AND SEARCH ON THE HIGH SEAS
938. Examination as to the nature of the cargo and search may
be admitted only in time of war and outside the territorial waters
of neutral powers, while observing the rules relating to the exer-
cise of this belligerent right.
In time of peace, the inspection of the ship's papers and search
on the high seas may be justified by way of exception:
(a) With respect to vessels committing piracy or open to serious
suspicion thereof;
(6) With regard to ships engaged in the slave trade or in the
importation of arms, ammunition or spirituous liquors into
Africa, complying, however, with the rules laid down in the Act
concluded at Brussels on July 2, 1890, even in so far as it deter-
mines the zone within which such exceptional powers may be
exercised:
388
INTERNATIONAL LAW CODIFIED
(c) With regard to ships caught in the act of cutting or damaging
a submarine cable, or giving rise to serious suspicions of an attempt
on their part wholly or partially to interrupt interoceanic commu-
nications.
In such case, the commander of the war vessel may undertake the
necessary examination to establish the offense or attempted offense
and to seize the ship, mentioning in his log book all the circum-
stances justifying his intervention.
POWERS WITH RESPECT TO A VESSEL ENGAGED IN PIRACY
939. The commander of a war vessel which, on the high seas,
meets a ship engaged in piracy or open to suspicion thereof, and
compels her to stop, may proceed to the examination necessary to
establish the true character of the ship.
940. The right of jurisdiction granted to the commander of a war
vessel with respect to a ship suspected of piracy which he meets
on the high seas must, on principle, be considered as limited in pro-
portion to the degree of basis for suspicion, and it should in no
way be abused.
He is, therefore, bound to proceed with caution with the exam-
ination necessary to ascertain the true character of the vessel and
to refrain from any act not warranted by the circumstances
and which might cause him to be suspected of having sought to
interfere with the liberty of navigation.
941. When, as a result of his examination, the commander
ascertains that the vessel is engaged in piracy, or that she is open
to suspicion thereof, he may seize her and compel her to follow the
war vessel to be delivered up to the competent authorities for
trial on the charge of piracy.
Compare rules 301 et seq., relating to criminal jurisdiction with regard to
pirate ships.
942. The commander who has seized a ship engaged in piracy
or suspected thereof must mention in his log book the circum-
stances on which his action was based.
Should it afterwards appear in the trial that he had abused the
power vested in him, he is to be held responsible for his acts and
may be compelled to pay damages, taking account of the circum-
stances and of the degree of fault of the ship in giving rise to a
COMMON PROPERTY
389
justifiable suspicion and to the action of the commander in ascer-
taining the character of the ship.
943. A merchant vessel attacked by a pirate ship always has the
right to defend herself by force, and if she succeeds in capturing
her, she may take her to the first accessible port and deliver her
over to the maritime authorities in order that justice may take its
course.
EXCEPTIONAL PRINCIPLES FOR THE SUPPRESSION OF THE SLAVE
TRADE
944. The principle of the liberty of the high seas cannot be re-
garded as violated because, in order to suppress the slave trade, the
signatory states of the General Anti-slave Act of July 2, 1890, have
given to their respective war vessels the power of jurisdiction over
the non-territorial waters of Africa and the regions where slavery
is tolerated, so as to suppress the unlawful traffic in negroes. .
945. The exceptional powers attributed under that Act to ships
of war with regard to their respective merchant ships on the basis
of a strict reciprocity are founded upon the Brussels Act of July 2,
1890. This convention is binding only upon the states which, after
signing it, ratified it or subsequently adhered to it.
These powers, which constitute a derogation from the “com-
mon ” law, must be considered as specifically set forth in the clauses
of that convention and must be exercised in conformity therewith.
The Anti-slave Act of July 2, 1890, was signed by the following states:
Austria-Hungary, Belgium, Congo, Denmark, France, Germany, Great
Britain, Italy, Netherlands, Norway, Persia, Portugal, Russia, Sweden, Tur-
key, United States and Zanzibar.
The exchange of ratifications took place at Brussels, by the protocol of
January 2, 1892 (Trattati relativi all'Africa, v. I, p. 363). France, however,
made reservation with regard to articles XXI, XXII, XXIII, XLII and LXI,
and consequently, with respect to ships of French nationality, the exercise
of exceptional powers, such as the examination of the manifest and visit, is
excluded and the special treaties concluded by France with each of the signa-
tory powers must be considered as applicable. The General Act was subse-
quently completed by the conventions of June 8, 1899, and of November 3,
1906, also signed at Brussels, regarding the traffic in spirituous liquors in
Africa.
See concerning all these acts the volumes published by the General Office of
Colonial Affairs of the Kingdom of Italy (Documenti relativi all'Africa), 1906.
946. The principle of the liberty of the seas must be regarded
as violated, if the states signatory to the Anti-slave Act of 1890,
390
INTERNATIONAL LAW CODIFIED
in order better to attain their noble purpose, should assimilate
the slave trade to piracy or assume any right of jurisdiction what-
ever over the merchant vessels of other states that have not signed
the treaty or subsequently adhered thereto.
Everybody must recognize that the negro trade constitutes the gravest
assault upon the rights of human beings and that the suppression of such a
trade must be regarded as an act of international justice. It must be admitted,
nevertheless, that the repressive measures ought in principle to be within the
exclusive competence of each state, which possesses the right to subject its
merchant vessels to the jurisdiction of its war vessels, prescribing penal sanc-
tions for the suppression of this unlawful traffic. Acts of jurisdiction of the
war vessels of a state over foreign merchant vessels can be justified only by
virtue of a treaty conferring such right subject to reciprocity to the respective
war vessels of the signatory powers. Any act of jurisdiction not based on a
treaty, notwithstanding its praiseworthy purpose, must accordingly be re-
garded as opposed to the principle of the liberty of the sea and hence to the
independence of states.
This idea is formulated in article XLV of the Act of Brussels, which reads, in
translation: “The examination of the cargo or search can only take place in
the case of vessels sailing under the flag of one of the powers which have con-
cluded or may subsequently conclude the special conventions provided for in
article XXII and in accordance with the provisions of such conventions.”
METHOD OF PROCEDURE FOR INSPECTION AND SEARCH
947. The commander of the war vessel may resort to coercive
measures in order to proceed to the inspection of the ship's papers
and to visit in the cases provided for in the foregoing rules, only
when the merchant vessel does not promptly respond to the re-
quest to stop. In that case, he may support his demand by firing
a gun with successive blank shots and if the vessel does not stop,
he may direct the shots first at the sails, then at the masts, and
finally, if the vessel should persistently refuse to obey, at the hull,
until the vessel heeds the warning and heaves to.
948. As soon as the vessel has stopped, as a result of the warning
or the coercive measures, the commander may personally under-
take the inspection of the ship's papers and, if necessary, search
ber, or charge with that duty an officer delegated by him, who must
be accompanied by another officer who, in case of need, may bear
witness to what has taken place during the visit.
949. The boarding officer will undertake the inspection of the
papers and if necessary, the search of the vessel in the manner least
vexatious, bearing in mind the instructions of the commander.
COMMON PROPERTY
391
Any unjustified delay must always be avoided and the vessel be
allowed to proceed freely on her way when prima facie all reason
for suspicion against her appears unwarranted.
950. The boarding officer must first examine the ship's papers
and can proceed to the examination of the cargo only when, from
the papers, there exists a serious suspicion that the vessel is en-
gaged in a trade declared unlawful under the above-mentioned
Act of Brussels or other acts which prohibit traffic in certain
things (spirituous liquors, firearms, or ammunition) and which
admit the right of visit and search as a measure of repression.
951. When it is necessary to proceed to the examination of the
cargo, it can take place only on formal authorization of the 'com-
mander of the war vessel on whom rests the responsibility therefor.
The examination must always be made with circumspection and
moderation, avoiding damage to the cargo so as to prevent just
claims.
952. The inquiry on the part of the war vessel to ascertain
whether the vessel under examination is lawfully authorized to
carry the flag she is flying, must take place in an appropriate case
under due observation of the rules set forth above as regards visit
and search.
SEIZURE OF THE SHIP ON THE HIGH SEAS
963. Besides the ships included within the categories mentioned
in paragraphs a and c of rule 938, any merchant ship, under the
general Act of Brussels of July 2, 1890, may be seized:
a. Which, being liable to search, shall attempt to avoid it by
flight or force;
b. Which declines to produce the ship's papers in a case where
she must be considered bound to do so, or which, in any
manner whatever, has hindered the work of the officials
who, under the terms of the Brussels Act, are charged with
the duty of examining these papers;
c. Which has no ship's papers or whose papers present grave
irregularities;
d. Which are unlawfully engaged in transporting firearms,
ammunition, or spirituous liquors intended for countries
or coasts where such traffic is prohibited by treaty, either
392
INTERNATIONAL LAW CODIFIED
when the prohibited goods are on board or when it is proved
that the ship has jettisoned such goods before submitting
to the search;
e. Which is not duly authorized to sail under the flag she flies
and is therefore guilty of a fraudulent use of the flag.
OFFICIAL MINUTES AND RESPONSIBILITY
954, In whatever case commanders of war vessels exercise on
the high seas the exceptional powers prescribed in the foregoing
rules, they are bound to draw up an official statement of the acts
performed and of all the circumstances on which they were based
and to mention the declarations and protests of the captain or
commander of the ship subjected to inquiry, inspection, search or
seizure, and to transmit to the Minister of Foreign Affairs of their
country a detailed report which must serve to determine the re-
sponsibility for the commander's acts in the proceeding which
must be instituted before the competent authorities to determine
their legality.
VISIT AND SEIZURE WITHIN TERRITORIAL WATERS
955. As the sovereign of a state enjoys the unquestionable right
of exercising jurisdiction and police powers within the limits of its
territorial waters, it follows that he may regulate commerce and
navigation over these waters; prohibit therein traffic in certain
goods (provisions, ammunition, spirituous liquors, etc.); provide
for the punishment of those who violate such prohibitions; exercise
police powers with respect to all foreign ships without distinction
in territorial waters; and subject to search those suspected of
violating the prescribed laws and regulations.
956. The surveillance, control, inspection of cargo and search
within the limits of territorial waters, or to the limit of the maritime
frontier of every state, must be deemed justified as measures of
security and public order required for the protection of the con-
tinental territory and by the necessity of preventing contraband
trading or smuggling.
The word contraband must be understood in its general acceptation, that is,
of a thing done “contra il bando,” in other words, contrary to law and duly
1
COMMON PROPERTY
393
published preventive regulations. It is, therefore, fiscal contraband to import
goods in violation of fiscal laws and customs regulations. It is contraband of
war unlawfully to transport arms and articles intended for the enemy in vio-
lation of the laws of war. In like manner, if a state should prohibit by law the
importation of arms and ammunition in the countries subject to its sovereignty
or protectorate, traffic within the territorial waters of that state in such pro-
hibited goods must be designated as contraband.
Compare, for the basis of the proposed rules: Calvo, Droit international, 4th
ed., v. I, § 383, p. 517; Pradier-Fodéré, Droit international, v. II, § 630; Perels,
Droit maritime, French translation, p. 50; Ortolan, Droit pénal, 3d ed, v. I, p.
390; Faustin Hélie, Traité d'instruction criminelle, v. XI, p. 508; British law
of August 16, 1868.
Search within French territorial waters to prevent smuggling is admitted
under the law of 4 Germinal, year II, art. 7, title II and under that of March 27,
1817, art. 13.
957. Any war vessel intending to subject to inquiry and search
a foreign merchant ship within territorial waters, must undertake
the search in conformity with the provisions of the treaties con-
cluded by its government with the state to which the merchant
ship belongs. According to these treaties, the assistance of the
consul may or may not be required. The war vessel, furthermore,
may compel the merchant ship to heave to and may keep her in
custody in order to search her in accordance with the rules of exist-
ing treaties.
See the treaty concluded at London, December 13, 1906, between France,
Great Britain and Italy, to regulate visit in territorial waters with a view to
suppress the traffic in arms in Africa.
958. When a war vessel which intends to subject to search a
merchant ship in territorial waters suspected of contraband trad-
ing, has without avail requested the ship to stop and has com-
menced pursuit to compel her to heed the request, she may con-
tinue the pursuit beyond the maritime belt, provided the pursuit
is continuous, and use the coercive measures indicated in rule 947.
PROCEEDINGS UPON SEIZED SHIPS
959. Proceeding against ships seized in time of peace in the cases
set forth in the foregoing articles must be instituted before the
competent court, which must pass upon the grounds on which the
seizure was based, and determine the penalties incurred.
960. When a foreign merchant ship has been arrested in
territorial waters, the case must be referred to an authority com-
394
INTERNATIONAL LAW CODIFIED
petent under the law of the arresting state. If the seizure was
made on the high seas, the proceedings must be instituted before
an authority competent under the law of the flag of the merchant
ship.
Compare the general Act of Brussels of July 2, 1890, arts. XLIX et seq. and
that of Algesiras of April 7, 1906, for the suppression of the traffic in arms in
Morocco.
NAVIGABLE RIVERS
961. Navigable rivers passing through or separating the terri-
tory of different states are deemed international rivers and are
subject to the rules that must govern the high seas, as regards the
liberty of navigation and their peaceful use for the needs of com-
merce. These rules are applicable to them from their mouth as
far down as they are navigable.
962. Riparian states must consider themselves in de facto com-
munity and none of them may to the prejudice of others limit the
liberty of navigation over the section of the river passing through
its territory, nor interfere with the freedom of international com-
.
963. It is the duty of states through which a navigable river
passes to determine by common agreement the rules of naviga-
tion, in order to assure to navigators the free use of the river for
the needs of commerce without undue restrictions.
merce.
This rule is based on that laid down in articles 108 and 109 of the treaty of
Vienna of 1815, which read as follows:
Art. 108. “The powers whose states are crossed or separated by the same
river undertake to regulate by mutual agreement all matters related to the
navigation of that river."
Art. 109. “Navigation over the entire course of rivers indicated in the pre-
ceding article from the point where they become navigable up to their mouths
is to be entirely free and cannot, with respect to commerce, be forbidden to
any one.”
The community of fact which, by the nature of things, exists between ri-
parian states, prevents one of them from doing anything contrary to the pur-
poses of the common thing. It thus follows that, as the river is an indivisible
whole and must be deemed as intended to serve the needs of international
commerce, the liberty of navigation possessed by all cannot be limited or
restricted at the pleasure of the state which possesses the banks of one of the
sections of the river, without changing the nature of the common thing.
Compare: Fiore, Diritto internazionale pubblico, 4th ed., v. II, $$ 794
et seq.
COMMON PROPERTY
395
RULES FOR THE NAVIGATION OF INTERNATIONAL RIVERS
964. The rules of river navigation must on principle be laid down
in harmony with the general interests and not in favor exclusively
of the private interests of one or other of the riparian states.
When the latter do not agree upon the regulations to be observed
in navigating the whole course of the river, any of the riparian
states may require that regulations be prepared by an international
commission in conformity with the principles of law relating to the
freedom of international commerce.
The regulations for the liberty of the navigation of rivers, drawn up in
conformity with the treaty of Vienna, provide: “Article 2. Navigation over
the entire course of the rivers indicated from the point where they become
navigable to their mouths is to be absolutely free and cannot, with respect
to commerce, be forbidden to any one, provided he conforms to the uniform
regulations established for the policing of navigation, and so far as possible,
favorable to the commerce of all states.
Art. 3. The system which is to be established for the collection of tolls and
for the maintenance of navigation is to be as far as possible the same through-
out the entire course of the river and is to extend, unless special circumstances
interfere, to the arms and affluents thereof which, throughout the length of the
navigable portions, separate or cross different states.
965. No riparian state can subject the section of an interna-
tional river that passes through its territory to special regulations
favorable to its own interests. It must be deemed a violation of
international law for riparian states to agree to enact regulations
applicable to the whole river, an act opposed to the principle of
the free navigation of the river.
966. The right of riparian states to regulate in common accord
the navigation of an international river passing through or
separating their territory must always be subordinated to the
common” law which protects the freedom of navigation.
967. Riparian states must not make any change nor undertake
any public work susceptible of making the river unfit for its pur-
pose. If it should do so, any riparian state may require that the
river be maintained throughout its course in a condition fit for
the needs of international commerce and that every obstacle to
the freedom of navigation be removed.
968. It is the duty of every riparian state to undertake the
works necessary to maintain the river in a good condition of navi-
gability. When unable to construct them, it cannot oppose their
396
INTERNATIONAL LAW CODIFIED
construction by all the riparian states or by one of them, all agree-
ing to a pro rate contribution to the expenses incurred.
PRINCIPLES CONCERNING THE REGULATION OF RIVER NAVIGATION
969. The regulation of river navigation must provide for:
(a) Effecting whatever may be necessary to secure the easy and
safe navigation of the navigable course of the river;
(6) Determining the technical works to be constructed at joint
expense or at the expense of one or other of the riparian states and
supervising their construction;
(c) Preventing such works as may alter the course or distribu-
tion of the waters or create some obstacle to the freedom or safety
of navigation;
(d) Reconciling the private interests of every riparian state and
of its citizens with general interests;
(e) Establishing an authority to enforce the regulations.
970. It is the duty of each riparian state to provide, by special
regulation, for the police of navigation over the section of the
river flowing through its territory; to prevent smuggling therein;
and to regulate health inspection, quarantine, and the payment of
navigation dues by the ships entering its ports, all without preju-
dice to general interests.
971. The arms of an international river, communicating with
the sea and meeting the proper conditions of navigability must,
throughout their navigable course, be considered as constituting
part of the river and subject with respect to navigation to the
regulations governing the river.
NAVIGATION TAXES AND DUES
972. The right of each state crossed or bounded by an inter-
national river to collect any kind of contribution under the name
of navigation tax must be determined and limited in proportion
to its share of expense in maintaining the river in a condition of
navigability. Such tax is to be considered as compensation for
the expenses incurred to that end.
973. Every regulation of a riparian state which subjects navi-
gation over a river to the payment of transit dues must be con-
sidered as a violation of international law. Such taxes would
COMMON PROPERTY
397
imply the assertion of a right of sovereignty over waters which,
according to “common” law, every one has the right freely to
enjoy for the requirements of navigation.
974. The general taxes of entry and transit which each of the
riparian states may collect upon vessels navigating the section of
the river within its jurisdiction must be determined by means of
tariffs officially published and proportionate to those established
for the seaports open to commerce, increased only in consideration
of the expenses necessary to maintain the river in its own section
in a state of navigability.
975. Any form of contribution, imposed for any reason what-
ever by one of the riparian states on ships transporting goods in
transit, which is not conformable to the general tariff and in pro-
portion to the technical and administrative expenses incurred in
the interests of navigation, is to be considered as an arbitrary
charge and as contrary to the principle of the international free-
dom of navigation and commerce.
976. The collection of navigation dues, when justified, must
always be simplified so as not to interfere with the freedom of
commerce.
It must be deemed essential, therefore, that the amount of such
duties be independent of the nature of the cargo, and proportion-
ate to the capacity of the ship, and that all forms of differential
treatment be eliminated.
The capacity of a ship must be considered as established by its
tonnage as indicated in the ship's papers.
The only vessels which may be subjected to the payment of
customs duties are those entering ports for commercial purposes,
exempting those which, through the necessities of navigation, are
forced to discharge or deposit their cargo, which must be subjected
only to the expenses of discharge and deposit in accordance with
local regulations.
COMPULSORY PILOTAGE
977. No riparian state can compel the ships that pass through
the section of the river under its jurisdiction to employ an expe-
rienced local pilot, except under circumstances and in localities in
which it might be dangerous to trust the management of a ship
to a foreign pilot
398,
INTERNATIONAL LAW CODIFIED
COASTING TRADE
978. Every riparian state may reserve the coasting trade in the
section of the river under its jurisdiction to its own citizens. The
transportation of passengers along the banks of the different sec-
tions of the river must be subject to the rules governing the mari-
time coasts of civilized states.
LEGAL ENFORCEMENT OF THE REGULATIONS
979. Regulations concerning the navigation of international
rivers are considered to be under the collective guaranty of all the
states constituting the international society, and may be declared
binding by them upon any riparian state which may have refused
to subscribe or adhere to them.
980. A regulation of river navigation, drawn up by common
agreement among the riparian states and accepted by other states
without opposition, cannot be modified independently by any of
the states parties to it.
Each state has the right to provide for the enforcement of
regulations established by common accord to protect the freedom
of navigation and commerce and to control any modifications
which might be made to the detriment of the general interests.
JURISDICTION OVER CONTROVERSIES REGARDING RIVER NAVIGATION
981. The decision of any controversy of international import
relating to the navigation of international rivers, or which may
proceed from a violation of or non-compliance with, the rules of
international law which concern the control and administration
of these rivers, must be referred to a permanent international
commission, or to a special tribunal constituted both by the repre-
sentatives of the riparian states and by those of other states.
982. Controversies which may arise from acts of private persons
occasioned by some event or by an accident of navigation in one
section or other of the river, or from non-compliance with the
special regulations established by each riparian state are to be re-
ferred to the courts of the state having jurisdiction of the section
of the river in which such acts or violation of regulations occurred.
COMMON PROPERTY
399
This rule aims to fix the competence of the international commission and
that of the territorial authorities. An international jurisdiction could not be
justified with respect to acts of all kinds occurring on an international river.
Whenever such acts, by their nature, cannot be deemed of international im-
port, it is reasonable that they should be submitted to the territorial adminis-
trative or judicial authorities. So far as they are concerned, indeed, the com-
pétence of a special international jurisdiction substituted for the ordinary
territorial jurisdiction cannot be justified.
NAVIGABLE RIVERS FLOWING THROUGH THE TERRITORY OF A SINGLE
STATE
983. Navigable rivers which from their source to their mouth
flow through the territory of only one state must be assimilated
to the open sea from the point where they become navigable.
The right to navigate them freely and to fish in them must,
therefore, be recognized as open to the vessels of all nations, but
it must be conceded also, that the sovereign, having dominion
over the banks of the river, may fix the conditions upon which
foreign ships may utilize the banks and ports for commercial
purposes.
This rule is based on the idea that all waters which cannot be considered
within the dominion of any particular sovereignty ought to be in the class of
common things which, according to the law of nations, may be used and en-
joyed freely by every one.
The state to which the banks of a navigable river belong cannot have legal
possession of the waters beyond the maritime frontier, that is, beyond three
miles from the shore. Therefore, the state cannot prevent ships wishing to
enter the river from the sea from navigating freely over the portion beyond the
maritime frontier, either to carry on fishing, or to occupy an island formed in
the bed of the river, or for any other purpose. The navigable river even when
it flows through a single state must be assimilated to the open sea. Yet
such river cannot be used for international commerce, and therefore, could not
be subject to the same regulations as international rivers in the matter of the
freedom of international commerce. The interference with commerce on an
international river may undoubtedly be considered as opposed to the princi-
ples of an enlightened policy and to the economic interests of the state itself;
but we cannot maintain that the territorial sovereign has not the right to
apply to the commerce carried on within his territorial river waters the prin-
ciples which he considers best, without being subject to the restrictions which,
in the common interest in the freedom of international commerce, ought to be
considered imposed on all the riparian states with regard to international
rivers.
984. The state to which both banks of a navigable river belong
may prohibit navigation within its territorial waters to foreign
400
INTERNATIONAL LAW CODIFIED
ships and the carrying on of trade in the open ports throughout
the course of the river or may regulate navigation and trading
without equality of treatment.
Every right of the sovereignty of the state over a river within
its territorial limits must be subject to the same rules which govern
the rights of sovereignty over territorial waters.
POSITIVE LAW RELATING TO RIVER NAVIGATION
985. Save for the application of the principles of "common”
law in the absence of treaty regulating the navigation of an inter-
national river, everything concerning the liberty of navigation of
a river and the exercise of the respective rights of the states sep-
arated or traversed by such river must be considered as governed
by treaties or special regulations.
986. Whenever the treaty or the regulations are silent, or it be-
comes necessary to construe the stipulations of the convention or
regulations, every question or dispute must be decided in the sense
most favorable to the principle of the freedom of navigation and
of international commerce.
987. It is the duty of international commissions created to
provide for the execution of the provisions of treaties, to draw up
without delay the regulations of navigation and river police with a
view to assure the navigability of the river; to fix the general tariffs
for navigation dues; and to regulate the police, administration and
supervision and do everything required in the common interest to
facilitate navigation and to promote the freedom of international
commerce.
The treaties concluded to regulate the navigation of the different interna-
tional rivers are rather numerous and to set out the rules of positive law accord-
ing to such treaties would be a long and involved task. Certain data on the
most important rivers will be found in v. II of our work: Trattato di diritto
internazionale pubblico, $$ 805 et seq. One of the most important acts, in which
are embodied the most liberal principles relating to river navigation, is the
general and final act of the Conference of Berlin of February 2, 1885, in Chap-
ters IV and V of which are contained the rules adopted for the navigation of
the Congo and Niger rivers. See, Catellani, Le colonie e la Conferenza di
Berlino; Calvo, Droit international, $$ 308 et seq.; Engelhardt, Du régime con-
ventionnel des fleuves internationaux; Bonfils, Manuel de droit international
public, $$ 520 et seq. and the authors there cited; Pradier-Fodéré, Droit in-
ternat., v. II, $$ 682, 757; Rivier, Principes de droit des gens, v. I, pp. 220 et seg.;
Oppenheim, International law, vol. I, 2d ed., pp. 240-244. The Institut de
COMMON PROPERTY
401
1
droit international adopted at Madrid certain international rules regarding
rivers. See Annuaire, v. XXIV, 1911.
ARTIFICIAL NAVIGABLE CANALS
988. Navigable canals artificially constructed to be used for
international navigation, even when, throughout their whole
length, they cross the territory of a single state, must be considered
as governed by the rules of international law which guarantee the
freedom of navigation.
The most important interoceanic maritime canal opened to international
commerce is the Suez Canal, which represents one of the most stupendous
works performed during the XIXth century. It is situated entirely in Egypt.
Another is the Corinth Canal, built on Greek territory and opened on Au-
gust 24, 1893, but it has not the same international importance. The Panama
Canal unites the Atlantic with the Pacific Ocean. Finally there is the Kiel
Canal, uniting the bay of the same name with the mouth of the Elba river.
989. The rights of the territorial sovereign of the territory
traversed by the canal and those of the contractors who built
it must be subordinated to the general interest, which con-
sists in using such means of communication for international
transportation and commerce. Therefore, aside from the rights
of jurisdiction of the territorial sovereign according to "common"
law, and those which must be recognized on the part of the con-
cessionaires under the contract providing for the undertaking,
everything concerning the free use of the canal on the basis of
perfect equality must be determined by common accord and re-
main under the protection and control of the states whose duty it
is to safeguard the use of the canal for the needs of navigation.
990. The establishment of rules guaranteeing the free use of a
navigable canal and reconciling general interests which arise from
its use by all states for the needs of international commerce, with
the rights of the territorial sovereignty, ought to be reserved for
an international conference or commission.
The regulations for the navigation of the Suez Canal were drawn up in
common accord at the suggestion of Great Britain, which proposed the meet-
ing of a conference of the interested powers in order to establish conventional
regulations to guarantee the freedom of navigation in time of peace and in
time of war. This invitation was notified through diplomatic channels by the
circular note of Lord Granville, of January 3, 1883. On March 17, 1885, there
was signed at London the following declaration, by which there was instituted
402
INTERNATIONAL LAW CODIFIED
a commission to prepare a draft of the regulations: “Whereas the powers are
agreed in recognizing the pressing need of a negotiation with a view to sanc-
tioning through a convention the establishment of a definite régime with the
object of guaranteeing at all times and to all the powers the free use of the
Suez Canal, it is agreed between the seven aforesaid governments that a com-
mission composed of delegates appointed by the said governments shall meet
at Paris on March 30 to prepare and draw up such convention, taking as a
basis the circular of His Britannic Majesty's government of January 3, 1883."
Compare: Fiore, Diritto internazionale pubblico, 4th ed., v. II, Appendix, pp.
616 et seq.
991. States must see to it that artificial maritime canals are
always free and open to commerce in times of peace and of war,
maintaining the principle of perfect equality with respect to the
ships of all nations and avoiding any privilege and advantage that
might be established by private agreement. They must, more-
over, arrange to eliminate any obstacle by the territorial sovereign
to the entire freedom of navigation, while reserving the rights of
such sovereign, subordinating them, however, to the safeguard of
the general interests.
The conventional régime of the Suez maritime canal, established by the
Conference of Paris of 1885, and confirmed in the treaty signed at Constanti-
nople, October 29, 1888, complies fully with the principles of science and the
exigencies of the freedom of international commerce. Under that treaty,
not only was the free use of the Suez Canal guaranteed in times of peace and of
war, but there was secured as well the principle of equality as regards the free
use of the canal. In effect, the signatory powers formally engaged not to
attempt to obtain any territorial or commercial advantage or privileges through
international agreements which might subsequently be concluded with respect
to the canal (art. 12): “The high contracting parties agree, by application of
the principle of equality as regards the free use of the Suez Canal (a principle
which is one of the bases of the present treaty) that none of them shall seek
territorial or commercial advantages, or any privileges in the international
arrangements which may take place with respect to the Canal. The rights
of Turkey, furthermore, as a territorial power are reserved."
992. Dues and tolls of transit, pilotage, towing, etc., paid by
the ships that use an artificial canal, must be established with
moderation and be regarded as intended to make good the money
expended in building the canal and to cover the expenses neces-
sary to maintain the canal in a condition of navigability.
LIBERTY OF STRAITS
993. Straits that unite open seas, or a sea open or closed, with an
international river, must, so far as concerns their use, be deemed
COMMON PROPERTY
403
1
common property, everybody having the right to use them freely
for the needs of navigation and of commerce.
994. No territorial sovereign may, without violating interna-
tional law, refuse to recognize the freedom of transit through
straits or consider straits as within his exclusive domain even
when both shores belong to him and he can in fact prohibit their
use by force.
995. It must be regarded as contrary to international law to
compel ships which cross a strait to pay to the sovereign to whom
the shores belong any tax or toll which might have the character
of a tax for passage, save when such tax may be considered as
representing the services rendered and expenses incurred in render-
ing the strait fit for navigation.
996. Any toll which might be justified ought to be confined
within the strict limits of reimbursement for actual services and
actual expenditures incurred in rendering the strait navigable, so
as to remove from the toll any character of a tax for passage.
997. A state which would collect a duty disproportionate to the
services rendered by it could be compelled to put an end to such
an abuse and to limit its claims according to equity or as might be
determined by arbitration.
998. The state to which the shores belong always has the right
to regulate the navigation of the strait, so as to assure its own
safety and defense in time of war. Such right must be recog-
nized particularly with respect to straits which connect an open
sea with a closed sea.
999. The right of passage of war vessels through the straits of
the Bosphorus and the Dardanelles must remain subject to the
conventions concluded between the Ottoman Empire and the
other powers relating to navigation in these straits.
The navigation of the Bosphorus and of the Dardanelles was regulated by
the convention of July 13, 1841, which was revived by article 10 of the treaty
of Paris of March 30, 1856, and was regulated by the convention of the same
day annexed to that treaty. This latter convention was maintained by the
treaty of London of March 13, 1871, which provides in article 2: “The principle
of the closing of the Straits of the Dardanelles and the Bosphorus, as laid down
by the separate convention of March 30, 1856, is maintained, with the faculty
on the part of His Imperial Majesty the Sultan to open the said Straits in
time of peace to the ships of war of friendly and allied powers in case the Sub-
lime Porte should deem it necessary in order to safeguard the execution of the
stipulations of the treaty of Paris of March 30, 1856.”
1
1
404
INTERNATIONAL LAW CODIFIED
LIBERTY OF FISHING ON THE HIGH SEAS AND IN NON-TERRITORIAL
WATERS
A
1000. Liberty of fishing on the high seas and in non-territorial
waters must be deemed the natural right of man.
It is the duty of the sovereign of every state to regulate this
branch of industry with respect to his citizens who wish to carry
it on and to protect their right in competition with foreign fisher-
men, assuring the respect of and compliance with the rules founded
on “common" law and those which, according to usage and cus-
tom, must govern fishing in open waters.
1001. No state may claim the exclusive right to fish beyond its
territorial sea, nor can it base its pretended right to extend the
limits of such sea, for the advantage of its citizens, upon treaties
or immemorial possession contrary to the principles of “common"
law, which recognize the liberty of fishing on the high seas.
1002. Conventions concluded between two or more states to
regulate fishing beyond their respective territorial waters cannot
be considered as binding except with respect to the citizens of the
contracting states.
It is unquestionable that two or more states may by common agreement
regulate fishing by their respective citizens in the marginal waters of their
territorial sea and may establish conventional rules in their common interest.
Nevertheless, this cannot render obligatory upon other states regulations
thus established. In effect, so far as third powers are concerned, the conven-
tion should be held res inter alios acta. It could not, therefore, have any legal
value to modify the principles of common international law which assure the
liberty of fishing on the high seas. The claims of certain states, based on im-
memorial usage (such as those, for instance, of Denmark, which claimed the
monopoly of open sea fishing over the whole of the sea of Greenland), must be
regarded as contrary to the principles of international law.
1003. States which, in order either to regulate open sea fishing
in their common interest or to prevent conflicts between their
respective citizens engaged in that industry, adopt to that end
regulations applicable beyond their territorial waters and provide
punishment for violations thereof, committing to their war vessels
the enforcement of rules thus established, cannot consider such
regulations applicable to the ships that do not belong to the mer-
chant marine of the contracting states.
An example of such a convention is that concluded May 6, 1882, between
Belgium, Denmark, France, Germany, Great Britain and Holland, to regulate
COMMON PROPERTY
405
fishing in the North Sea beyond territorial waters. It goes without saying
that such treaty cannot give any jurisdiction over tbe ships of states other
than those which signed it.
1004. Treaties concluded to regulate fishing in the open sea, in
so far as they derogate from the principles of “common” law re-
lating to the freedom of the sea, must, as regards their validity be-
tween the contracting parties, be strictly construed, as must every
conventional clause which implies a limitation upon the free exer-
cise of a right.
Compare, as regards the questions that arose with respect to fishing in the .
Behring Sea, the award handed down August 15, 1893, by the tribunal of
arbitration; Calvo, Droit international, v. 6, Supplément général, $$ 379 et seq.;
Fiore, Diritto internazionale pubblico, 4th ed., v. II, Appendix, p. 607; Oppen-
heim, International law, v. I, 2d ed., p. 351.
LAKES
1005. Lakes situated between several states and accessible from
the river by which they are formed or from the sea, and navigable
like international rivers, must be considered as common property
and come within the application of the principles relating to the
navigation of international waters.
When situated between the territories of several states, but not
accessible from the sea, they come under the rules relating to the
liberty of navigation and fishing of the states to which belong the
surrounding landed territories.
In the treaty of Berlin of February 26, 1885, the rules relating to the liberty
of commerce in the Congo basin were declared applicable (article 2) to the
navigation of all the rivers that disembogue into the sea and to all the waters
of the Congo and its tributaries, including lakes. In article 15, the régime
established for the navigation of rivers is declared equally applicable to the
tributaries of the Congo River and to lakes. One of the great lakes of North
America, Lake Ontario, which belongs partly to the state of New York and
partly to Canada, is subject to special regulations of navigation under the
treaty of Washington of June 5, 1854, article 5.
As to lakes surrounded by the territories of several states, we are of the
opinion that they must be deemed common property so far as such states are
concerned and must be governed by the rules applicable to common property.
(See rules 1098 et seq.)
FREEDOM OF NAVIGATION
1006. Any ship may navigate freely in the ocean and the waters
which are not within the jurisdiction of any state, on condition,
406
INTERNATIONAL LAW CODIFIED
however, of complying with the rules of "common" law relating
to navigation on the high seas.
All waters that cannot be regarded as within the territorial dominion of a
state must, according to natural law, be deemed as intended to serve the needs
of those who wish to use them, the same as light, air and natural heat. There-
fore, the principles which relate to the freedom of navigation must be applica-
ble to all free waters, whether those of the sea, of a lake or of a river.
1007. Any limitation upon or obstacle to the freedom of naviga-
tion in free waters imposed by a state, as well as any act of sover-
eignty or jurisdiction on the part of the said state that may not be
justified under the principles of "common” law, must be regarded
as violations of the freedom of the sea and involve the international
responsibility of the state.
1008. It must be considered as contrary to the freedom of the
sea and of navigation to require from ships encountered on the
high seas, whether they belong to the merchant marine or are
minor war vessels, an obligatory salute or any other act which
might indicate their dependence upon or subjection to war vessels
of another state.
.
CONTROL ON THE HIGH SEAS DURING THE VOYAGE
1009. Supervision and control of navigation during the voyage
on the high seas must be regarded as assigned to the war vessels
of every state, confined exclusively, however, to the ships of its
national merchant marine. Any derogation from this principle
of “common” law can only be established through a special con-
vention, applicable by reciprocity among the assenting states.
1010. The internal control of the ship during the voyage must
be considered as committed to the person in command. He has the
right to preserve order and discipline on board and to assure the
safety of passengers.
1011. Any person going on board, whether a citizen or a for-
eigner, is bound to comply with the laws and regulations provided
by the sovereign of the state of the flag of the ship and to recognize
during the passage the authority of the persons who, under the law,
are empowered to maintain order and control on board, save his
right, on landing, to protest against any abuse of power on the
part of such persons.
1012. It is the duty of the sovereign of every state to determine
COMMON PROPERTY
407
by special laws the powers of every commander of a national
vessel, during the voyage, with respect to the crew and the passen-
gers.
1013. In no case can the commander of the vessel prevent any-
one from freely protesting against acts occurring during the voyage.
The commander is not bound to delay the voyage, but he cannot
prevent or hinder the landing at a port of call of the person who
desires to land for the purpose of making protest before the mari-
time or consular authorities. Any act of violence on his part in
that respect must be considered as arbitrary and as a violation of
the rules of “common” international law.
NATIONALITY OF THE SHIP
1014. Every ship must have its own character and be in a posi-
tion to establish the state to which it must be considered as be-
longing and whose flag it has the right to fly.
The national character of merchant ships must be determined
by means of a certificate of nationality or passport which every
yessel must have among its ship's papers.
With regard to war vessels, their nationality must appear from
the military flag, which they have the right to fly and which is
considered as covering them.
1015. The requisites and form of the documentary evidence of
nationality are to be determined according to the law of each
country. We must consider, therefore, as possessing the national-
ity of a state any ship which is legally in possession of the docu-
ment of nationality required under the laws and regulations of the
state to which she claims to belong.
.
SHIP'S PAPERS
1016. The papers that ships as a rule must have are:
(a) The certificate establishing their identity, indicating their
name, class and tonnage;
(6) The certificate authorizing them to navigate under the na-
tional flag, which is called the certificate of nationality or passport;
(c) The bill of sale or certificate of ownership of the vessel;
(d) The crew list;
408
INTERNATIONAL LAW CODIFIED
(e) The ship's inventory;
(f) The log book;
(9) The charter-party and bills of lading;
These documents may be drawn up in various forms and may be
included in one document.
With regard to the papers that Italian merchant ships must possess, see
Codice di marina mercantile, arts. 37 et seq., and Codice di commercio, arts. 500
and 503.
INTERNATIONAL RULES OF NAVIGATION
1017. The international rules of navigation are those agreed
upon in a treaty and those which, in the absence of treaty, are the
result of usage, the practice of mariners and the exigencies of navi-
gation.
1018. The rules of navigation must aim at preventing collisions
at sea and when the ships enter and leave ports. They must
regulate the maritime route, the signals intended to prevent disas-
ters, speed, the management and steering of ships and everything
necessary to insure safe navigation.
The regulations which seek to avoid collisions, while not signed at the same
time by all the states that have successively accepted them, have, however,
the character of an international act, because in fact at the present time they
represent the "common” law of a great many states. In effect, they have been
accepted by Belgium, Chile, Denmark, France, Great Britain, Greece, Italy,
Norway, the Netherlands, Portugal, Russia, Spain, Sweden (the United States
made the reservation that within American territorial waters certain special
rules of American law are to be observed) and Turkey (under reservation
that, on Ottoman ships, a drum should be substituted for the bell for fog
signals). Other states have adopted these regulations, which in Italy be-
came operative September 1, 1880, under royal decree of April 4, 1880 (no.
5390, series 2 of the session laws), with the exception of article 10, repealed by
the new decree of July 2, 1882 (id., no. 882, series 3), which was replaced by
art. 9 of the regulation approved by royal decree of February 1, 1883 (id., no.
1143), which refers to fishing vessels.
1019. Every ship of one of the nations which have declared the
rules of navigation obligatory upon their respective ships is bound
scrupulously to comply with such regulations, and in case of non-
compliance must be presumed guilty of and responsible for all the
injurious consequences thereof.
1020. Nevertheless, when, owing to special circumstances, it
may be considered necessary to depart from the rules prescribed
in the navigation regulations to prevent or to avoid an impending
COMMON PROPERTY
409
danger or to take precautions immediately necessary for her own
safety, the ship which has not observed the rules may offset the
presumption of culpability by proving that it has followed the
practice of mariners in the special circumstances of the case.
This rule aims to prevent disasters and, especially, collisions which might
under certain exceptional circumstances follow the formal and literal execution
of the rules adopted to prevent collisions. Let us suppose, for instance, that
it is proved that a ship, able easily to carry out a maneuver that
she was not obliged under the rules to execute, but which, according to the
practice of the sea was necessary, in the circumstances in which she was placed,
to avoid a collision, has performed such maneuver, owing to the great diffi-
culty for the other ship to go through the maneuver required under the rules;
in such circumstances, even if the collision could not have been avoided, it
would not be just to invoke the presumption of culpability against the ship
which had not observed the rule, when an established custom of the sea re-
quired her so to act.
RULES CONCERNING SIGNALS
1021. Ships of the states that have accepted the international
signal code, are bound to comply with the provisions of the code.
The international signal code for ships was drawn up in 1856 by the Anglo-
French Commission, taking into account the signals adopted by different
states, which were then classified after a thorough examination and brought
into one code. Several states have successively adopted it: Great Britain
(April, 1857), France (June 2, 1866), Russia (June 28, 1867), Netherlands
(January, 1867), Austria (April 4, 1867) Sweden and Norway (May 18, 1867),
Prussia (May 3, 1867), Brazil (February 21, 1868) Portugal (December 29,
1868), Italy (April 4, 1869), Belgium (December 18, 1869), Denmark (March,
1870), Spain (June 1, 1871), Turkey (March 31, 1880), Greece (April 26, 1882).
The United States accepted the provisions of the Code in principle (1873),
but did not formally adhere thereto.
REVISION OF THE NAVIGATION REGULATIONS
1022. It is incumbent upon the states which have accepted the
regulations designed to avoid collisions to determine, establish and
enforce the rules relating to the construction and equipment of
ships which, according to the principles of modern science, may be
considered as useful in avoiding collisions, rendering their conse-
quences less disastrous and facilitating the mangement of ships
so as to prevent maritime disasters.
It might be advantageous for that purpose to create an inter-
national technical commission to revise, perfect and complete the
regulations in force.
410
INTERNATIONAL LAW CODIFIED
RATIONAL RULES OF MARITIME COURSES OR ROUTES
1023. Every ship, independently of the international regulations
compulsory upon the ships of the states which have accepted them,
is bound to comply during the voyage with the rules deemed
binding according to the practice of mariners and the requirements
of navigation.
RULES CONCERNING SIGNAL LIGHTS
1024. Every steamship must have a signal-light placed at a
certain height and sufficiently luminous to be visible on a dark
night and clear atmosphere at a distance of at least five miles, and
projecting light uniformly and without interruption. It must also
have on each side a light visible on a dark night and clear atmos-
phere, at a distance of at least two miles.
These lights must remain burning from sunset to sunrise, re-
gardless of atmospheric conditions.
1025. Every sailing vessel must carry on the foremast and on
both sides, three lights casting a light visible on a dark night and
clear atmosphere at the same distance as in the case of steamships.
1026. Steam and sailing vessels, when at anchor, must have a
light so placed as to cast a light visible from all points of the hori-
zon and at a distance of at least one mile.
1027. Fishing boats and all small craft must carry a visible light
on both sides, casting a light discernible at a sufficient distance to
avoid collisions on the part of steam or sailing ships approaching
them.
FOG SIGNALS
1028. Every steam or sailing vessel, although not belonging to
one of the states which have accepted the signal code, must be
provided with an instrument capable of producing a sound that
can be heard at a reasonable distance, so as to avoid collisions in
fog or thick weather, or in case of snow, and must signal both in
daytime and at night at intervals not exceeding two minutes.
These signals, according to maritime practice, are the fog horn,
the bells, the drum and other similar instruments capable of pro-
ducing a sharp and prolonged sound, and whose transmission can-
COMMON PROPERTY
411
not be prevented by atmospheric conditions or by reason of the
fact that the body producing the sound is situated on the ship.
GENERAL RULES FOR DIRECTING AND MANAGING A SHIP
1029. All ships following opposite or almost opposite courses
proceeding toward each other and running the danger of collision
are bound, independently of the obligation of complying with the
regulations, to maneuver according to the rules accepted in prac-
tice by mariners, so as to leave the way free to the other ship and
thus avoid the risk of a collision.
The rules are as follows:
(a) A vessel which sails in the open sea must leave the course
free to a vessel which runs close upon the wind;
(6) A vessel which is close upon the larboard tack must leave the
course free to the vessel which is close upon the starboard tack;
(c) When two vessels sail in the open sea, but with different
tacks, the one which has larboard wind must leave the course free
to the other;
(d) When two vessels sail in the open sea, both having the wind
on the same side, the one which runs windward must leave the
course free to the one which runs leeward;
(e) Vessels running with wind aft must leave the course free to
any other;
(f) If two steam boats follow routes which so cross each other as
to involve a risk of collision the vessel that has the other on the
starboard must give the latter a free course;
(g) If two vessels, one a sailing vessel and the other a steam-
ship, navigate in such directions as to run the risk of colliding, the
steamship must clear the way for the sailing vessel.
(h) Any steamship approaching another so as to cause the fear
of collision must slacken her speed or stop, or even reverse the
engines, if necessary;
(i) Any ship overtaking another must keep outside the latter's
track.
RULES OF NAVIGATION IN TERRITORIAL WATERS
1030. Every state may require foreign ships which enter its
territorial waters to observe not only the general rules of naviga-
412
INTERNATIONAL LAW CODIFIED
tion, but also the special rules that it prescribes for the carrying
on of commerce within its waters, and ships which have not com-
plied with such rules cannot avoid the presumption of fault for
disasters resulting from their non-observance.
The United States, when adhering to the common regulations relating to
navigation, made the reservation that, in the matter of navigation within the
territorial waters of the United States, the laws and regulations provided
for by the Union to avoid collisions within its territorial sea, as specified in
section 4233 of the Revised Statutes of the United States, must be observed.
RESPONSIBILITY FOR COLLISION
1031. Any vessel which has not observed the rules of navigation
according to the international regulations or those which must be
considered compulsory according to the common practice of
mariners to avoid collisions, will be presumed at fault and be held
responsible for the damage resulting from the collision.
Such vessel will also be answerable for her fault and even neg-
ligence, when she has omitted the precautions required by the
common practice of mariners and by the special circumstances of
the case.
1
DISTRIBUTION OF DAMAGES IN CASE OF COLLISION
1032. States must establish by common agreement the regula-
tions relating to damage and loss in case of collision and determine
how and in what proportions the damages must be borne, dis-
tributed or made good.
Until such regulations have been drawn up, the following rules
may be considered as conformable to just principles:
(a) If the collision is the result of force majeure, the damage
and loss arising therefrom must be borne by the ship that has sus-
tained them, without right or claim to contribution;
(6) If the collision is due to the fault of one of the ships, the
damage and loss must be borne by the ship in fault, determined in
conformity with its national law;
(c) A collision occurring in territorial waters, rivers and ports,
between ships of different nationalities, must be regulated accord-
ing to the law of the place of collision.
(d) When the collision has taken place in territorial waters
COMMON PROPERTY
413
between two ships of the same nationality, the territorial law will
be applied to determine the fault and responsibility, and the
national law of the ships, to fix the apportionment of the damages;
(e) If the collision has occurred on the high seas between
ships of different nationalities, and if it is not ascertained to which
of the two vessels the fault is chargeable, or if the fault is common
to both, the damages to the ships and their cargoes must be added
together and borne by each in proportion to the respective value
of the ship and the cargo;
(f) In case of a collision where the fault is in doubt or of a col-
lision chargeable to both, occurring on the high seas between ships
of the same nationality, the national law of the ships must be
applied, even when a foreign court passes upon the case.
At the Congress of Antwerp, the following rule was proposed: “If the vessels
are of different nationality, in case of a collision on the high seas chargeable
to the fault of both or when it is not certain to which of the ships the fault
is chargeable, each ship is bound within the limits of the law of her own flag
and cannot receive more than that law allows her."
See, for observations concerning this rule and for reasons which might be
invoked in support of the one we propose: Fiore, De l'abordage des navires
suivant le droit international in Revue du droit public, v. 3, 1895, p. 293.
RULES CONCERNING THE COMPETENT COURT
1033. States must draw up in common agreement uniform
rules relating to the jurisdiction of litigation relating to collisions.
In the absence of such an agreement, the following rules may be
considered as conforming with correct principles:
(a) The courts of each state are competent to pass upon cases
relating to collisions occurring in territorial waters or on the high
seas between national vessels;
(6) They are also competent to pass upon collisions on the high
seas between ships of different nationalities, when the damaged
ship has been compelled to seek refuge in one of the ports of the
state;
(c) When the damaged ship has not been forced by circum-
stances to take refuge in the nearest port, the action must be
brought before the court of the place of destination, if the ship at
fault or her owner or his representative is there; otherwise, the
ordinary rules of jurisdiction must be observed;
414
CODIFIED
INTERNATIONAL LAW CODIFIED
(d) The court of the place where the ship at fault is seized is
considered competent;
(e) The authorities of the port of refuge and of the place of
destination of the damaged ship will always be competent to re-
ceive the report of the ship's 'master and to draw up the protest
necessary for the bringing of the action, to take depositions of
witnesses, to order a technical survey, to ascertain the damages
and to perform all the acts of investigation necessary to determine
the responsibilities.
TITLE II
PUBLIC PROPERTY IN ITS RELATIONS WITH
INTERNATIONAL LAW
GENERAL PRINCIPLES
1034. Public property is corporeal or incorporeal. The for-
mer consists of material things of which each state has the ex-
clusive legal possession as against other states. The latter con-
sists of property which each state enjoys exclusively, that is, things
that the sovereign has within his control and may dispose of for
the needs of the commonwealth.
Modern systems of legislation have admitted the distinction drawn by Jus-
tinian between the res publice and the res universitatis (Inst., lib. 2, tit. I).
They admit, therefore, that the state may enjoy uti singulus certain property
which it owns, while it may enjoy other things only uti cives. This distinction
is a matter of public internal law, according to which the property of the state
is divided into property merely under its eminent dominion and property of
which it has title and of which it may or may not dispose. In international
law, there is no such distinction. The question is to determine the right of
each state over the whole public property concurrently with the other states
which exist with it in the Magna civitas. Consequently, the distinction which
we have made seems to us sufficient.
1035. International law, while recognizing that the sovereign
of each state has an exclusive right over the things which consti-
tute the property of the state, must determine also how each
sovereign state must make use of and enjoy its rights over that
property so as not to cause any prejudice to the interests of the
states and peoples which co-exist with it in the Magna civitas.
The state cannot be deemed to own the things which constitute its patri-
mony, for its right over such things lacks the essential character of property,
the absolute power to dispose of it. The patrimonial rights of the state are
subject to the limitations prescribed by the laws that protect public interests
and the rights of the state. In external relations, as the exercise of the patri-
monial rights of each state may compete with the interests of other states, it is
indispensable that international law should regulate their exercise and enjoy-
ment in conformity with the requirements of the existence in common of all
the members of the Magna civitas.
415
416
INTERNATIONAL LAW CODIFIED
THINGS IN THE LEGAL POSSESSION OF EVERY STATE
1036. We must regard as in the exclusive legal possession of
every state the things over which the state has eminent domain,
with the power to retain possession thereof and to defend it against
other states.
These things consist of:
(a) Physical territory;
(6) Sea, river and lake waters, as far as their boundary line,
called territorial waters;
(c) Colonial possessions;
(d) War vessels which, combined, constitute the fleet:
(e) The islands that are located in territorial waters.
1037. Legal possession on the part of a state is effected through
the assertion of its sovereignty over things taken as a whole uti
universitas; and must be regarded as extending to the frontier
which constitutes the line of separation between the territory of
two contiguous countries.
Possession as exercised by a state cannot be compared with that exercised by
a private individual. In order that possession may be considered as effected
by a private individual, it is an essential condition in the first place that he
control the thing with the intention of exercising a right over it. Conse-
quently, possession may be considered as valid only if the possessor has the
physical disposition of the thing. On the other hand, as regards the sovereign
state, possession must be considered as effected through the assertion of the
right of dominion. Thus, it follows that a sovereign state may be in legal pos-
session of a whole continent and of its colonial possessions by the mere fact
that it asserts through sovereign acts its dominion over such territories with the
intention of maintaining their possession and of defending it against the world.
Therefore, the possession of the state extends over all the things that are under
its rule and over all its territory, whatever its extent, as far as the boundary
line, beyond which are asserted the sovereign rights of another state.
TERRITORY OF THE STATE
1038. The physical territory of the state is constituted by all
the contiguous land comprised within the limits of the region
subject to its sovereignty.
TERRITORIAL WATERS
1039. Territorial waters, that is to say, those contained between
the shores of a state and the line that constitutes its maritime or
PROPERTY IN ITS RELATIONS WITH INTERNATIONAL LAW 417
river boundary, must be deemed to be in the juridical possession
of the territorial sovereign. That sovereign has the right in these
waters to regulate navigation, transit, the landing of national and
foreign vessels according to the established laws and regulations,
and to insure their enforcement, without, however, preventing or
obstructing the peaceful use of the said waters.
See with respect to the right of dominion of the sovereign state over terri-
torial waters, rules 265 et seq.; on criminal jurisdiction, see rules 306 et seq.
COLONIAL POSSESSIONS
1040. Colonial possessions must be deemed within the lega
possession of the state to which they belong, in the same manner
as any other portion of the real territory of the state, so far as the
exercise of its sovereign rights is concerned.
1041. The rights of the state over the colonies as against the
rights of third powers must be considered as coming under the
application of the rules that relate to the exercise of the rights of
the different states over their respective territories.
GOVERNMENT OF COLONIES
1042. The administrative and economic government of each
colony must be deemed within the exclusive domain of the public
law of each country.
No state, however, may, without committing an arbitrary act,
so organize the government of its colonies as to disregard the in-
ternational rights of man, which cannot be denied to colonists and
must be under the protection of international law.
Compare rule 109.
1043. A state which, for the purpose of deriving an undue ad-
vantage out of its colonial possessions, sanctions by its law the
civil, economic and political servitude of the colonists and disre-
gards, to their prejudice, the fundamental rights of civilized
peoples, violates international law.
The subservience of colonies, as understood and practiced by some govern-
ments which were impelled by mercantile greed to found and to maintain
colonies so as to enrich themselves at the expense of colonists, is contrary to
the principles of modern law. The fact that colonists might have been con-
418
INTERNATIONAL LAW CODIFIED
sidered outside the "common” law of civilized peoples, up to the point of
denying them the free enjoyment of the rights of man, may have contributed
toward the colonial policy of organizing labor in the colonies and commercial
monopoly for the exclusive profit of the mother country, and of maintaining
the civil and political servitude of colonists. The development of civilization
must, however, naturally lead to the suppression of the system of perpetual
subjection, which was called colonial servitude, and justify the emancipation
of colonies.
The relation between the colony and the mother-country must be regarded
as within the domain of public internal law. Nevertheless, it must be admitted.
that the autonomy inherent in every sovereign state cannot justify the viola-
tion of the rights of the human person, which must be respected and protected
even with respect to population less civilized than the colonists. Arbitrary
violation of those rights and the powerlessness of the colonists to assure their
respect might justify collective intervention according to the rules hereinbe-
fore mentioned.
See rules 556 et seq.
ISLANDS
1044. Islands that may form in territorial waters should be
considered in the legal possession of the state to which such waters
belong.
Those which may form in the territorial waters of a river belong-
ing to several states should be considered in the legal possession of
each of the riparian states so far as they lie within the respective
boundary lines.
Those which form at the mouth of a river must be deemed in the
legal possession of the state to which belongs the territory where
the river disembogues into the sea and are to be regarded as a de-
pendency of the mainland even when they are unoccupied.
Compare: Perels, Droit maritime, translated by Brendt, who cites in con-
nection with the last part of the rule the decision of the Supreme Court of
Prussia of November 28, 1860.
BOUNDARY OF THE TERRITORY
1045. The boundary of every state is formed by the line of
separation which determines the limit of its territory and of that
of the contiguous state.
The line which constitutes the limit or boundary of contiguous
territories may be fixed according to a natural or conventional
demarcation,
The former must be regarded as indicated by the nature of the
region, the position of things and the geographical structure of the
PROPERTY IN ITS RELATIONS WITH INTERNATIONAL LAW 419
land. The latter may be established as the result of a reciprocal
agreement of the interested parties.
1046. The boundary of every state must be considered as per-
manently fixed when the states agree upon visible monuments, or in
their absence, when the separation line is fixed by arbitrators who,
taking into account both natural lines and rights respectively
vested, lay out the boundary by erecting visible monuments.
1047. When the boundary line is marked, the following rules
may be observed:
(a) To trace the boundary line by observance of the mathe-
matical line, but avoiding an unreasonable and harsh rigorism,
and taking into account the unevenness of the ground, the nature
of cultivated soil and the requirements of agriculture, subordinat-
ing, however, the strictly mathematical line to considerations of
equity;
(6) Not to complicate the difficulty by verifying long established
boundaries, whose visible signs may have disappeared, and to
confine the work to the tracing of the boundary in the parts where
an actual uncertainty exists.
(c) To correct the lines traced by nature, when necessary in
order not to separate a connected series of works or cultivated
land.
BOUNDARY LINE AS REGARDS CONTERMINOUS MOUNTAINS
1048. When two or more states are separated by a mountain
range and the boundary line is not determined by treaties, or in-
dicated by visible monuments, each state must be regarded as en-
titled to the slope situated on its side from the culminating point
or summit, and the water shed must be taken into account in fix-
ing the respective limits.
The line determined by the water discharge (water-shed line) is, in our
opinion, the line that should serve to establish the boundary of the mountains
or of the mountain range separating states. This line may sometimes differ
from that indicated by the culminating points, as the water shed is determined
by the inclination of the slopes on one side or the other.
MARITIME BOUNDARY
1049. The maritime boundary must be considered as fixed with
respect to any state by the limit established in conformity with
420
INTERNATIONAL LAW CODIFIED
customary law, or the limit which may be established by an in-
ternational convention determining the extent of territorial waters.
Compare rules 279 et seq.
1050. When territorial waters are in the dominion of two
states, as may be the case when the territory crossed by an open
sea belongs on the one side to one state and on the other to the
other state and the sea is so narrow that it constitutes the terri-
torial waters of both countries, or when the mouth of a river
is in the limits of two states, the boundary line of such common
waters must be determined by common agreement, taking into
account the median line between the shores of the two states.
BOUNDARY LINE WITH RESPECT TO COMMON NON-NAVIGABLE RIVERS
1051. When two or more states are separated by a common
non-navigable river, the boundary of the two contiguous states
must be considered as established by the intersecting line, called
the thalweg. This line must be regarded as determined by the
median part of the current at the point where the stream flows
with the greatest speed.
The thalweg unquestionably is not the middle part of the stream, but is
determined by the intersecting line of the currents of greatest volume on both
sides. It may be subject to deviations determined by the depth of the river
bed at different points, and may be established in navigable rivers by observing
the route of the boats of greatest tonnage.
1052. If the river should abandon its old bed and form a new
one, the boundary of the two states ought to be considered as re-
maining fixed as before with regard to the old bed.
If a gradual change has taken place in the course of the river,
the median line should be regarded as changed and each of the two
states must suffer either a diminution of territory or profit by the
actual accretion.
BOUNDARY LINE OF NAVIGABLE INTERNATIONAL RIVERS
1053. The boundary line, as regards riparian states, of an inter-
national river must be fixed at the limit of territorial waters, ob-
serving the same rules as for the maritime boundary. Waters
beyond this limit should be assimilated to the open sea.
PROPERTY IN ITS RELATIONS WITH INTERNATIONAL LAW 421
When, owing to its narrowness, the middle of the river is not
situated beyond the respective territorial waters of the riparian
states, their boundary ought to be established by application of
rule 1051.
BOUNDARY LINE WITH REGARD TO ISLANDS
1054. As to the islands that form in the middle of a river, the
boundary line must be established by taking into account the
thalweg, which ought to serve as a basis to determine the line of
division and boundary between the two riparian states.
TITLE III
METHODS OF ACQUIRING TERRITORY
1055. Territory may be acquired by a state:
(a) By annexing another state;
(6) By voluntary cession of a part of its territory, with or with-
out compensation, by the state to which it belonged;
(c) By compulsory cession, imposed as a condition of peace and
regulated by a treaty duly ratified;
(d) By the primary methods of acquisition, namely, occupation,
accession and usucaption,
1056. Conquest cannot be regarded as a legal method of ac-
quiring territory, nor can peaceful conquest under the form of
expansion or colonial protectorate, in violation of the principles
of "common” law, be regarded as legitimate.
See in this work, rules 1082 et seq; Oppenheim, International
Law, v. I, 2d ed., p. 281 et seq.
ANNEXATION
1057. When an autonomous state is incorporated into another,
voluntarily or by force, all its territory becomes an integral part
of the state to which it is annexed. This territory must be con-
sidered as in the legal possession of the state to which it is annexed
from the moment the incorporation became effective.
There are numerous examples of annexation of one state to another. The
independent state of Texas was annexed in 1845 by the United States. Like-
wise Hanover was, in 1866, incorporated with Prussia, at the same time with
the Electorate of Hesse and the Duchy of Nassau.
On the consequences of annexation as regards the exercise of sovereign rights,
see rules 140 et seq.
CESSION
1058. Cession of a portion of territory voluntarily transferred by
a sovereign in conformity with constitutional law produces, from
422
METHODS OF ACQUIRING TERRITORY
423
the moment it has become effective by actual possession of the
state to which it is ceded, the acquisition of that territory which
then becomes an integral part of the domain of the transferee state.
Compulsory cession imposed as a condition of peace produces the
same effect from the execution of the treaty and its actual posses-
sion by the transferee state.
For the legal consequences of cession with regard to the exercise of sovereign
rights of the ceding state to the transferee state, and of the rights of the in-
habitants of the ceded territory, see rules 147 et seq.
ACQUISITION OF TERRITORY BY OCCUPATION
1059. The acquisition of territory by occupation can only
take place in regions which are not in the legal possession of another
state.
1060. Countries which are a part of a continent inhabited by
civilized peoples with an established government, although not
actually occupied by the people, cannot be regarded as unoccupied
territory. Consequently the claim of a state which undertakes to
apply to such regions the principles governing unoccupied terri-
tory must be regarded as contrary to international law.
Compare rules 1036 and 1037.
1061. Countries which are not in the legal possession of any
civilized state, but which are inhabited by savage tribes may be
acquired by occupation; limiting it, however, to the portions of
territory unused by the natives and in which, by reason of the
disproportion between their area and their needs, they cannot
apply the ordinary means of exploitation to render them produc-
tive.
1062. Occupation by force of a country actually inhabited by
savage tribes must be considered as a disguised form of conquest.
Any state which desires to occupy territory inhabited by un-
civilized tribes, without violating international law, must negotiate
with them and obtain a cession by payment of compensation.
Moreover, while always excluding every form of violence against
persons and every other violent means of forcing the natives to
cede their surplus territory, the indirect and passive means for
inducing them to yield their territory to colonization must be
regarded as lawful.
424
INTERNATIONAL LAW CODIFIED
Countries inhabited by savage tribes, governed by chiefs elected according
to their custom, must be regarded as invested with sovereign power and can-
not in truth be considered as territories without a sovereign. Therefore, we
cannot, in principle, admit that the occupation of these countries can take
place in the same way as in countries actually unoccupied, however praise-
worthy may be the object of states desiring to occupy these countries for the
purposes of civilization. We cannot, indeed, admit that civilization may be
promoted by armed force. Our rule, therefore, seeks to render obligatory the
qualifications mentioned.
1063. A state which has succeeded in occupying a country by
any method, and which intends to retain possession, is bound to
notify the fait accompli through diplomatic channels in order to
put the other states upon notice to enter contesting claims. They
must, moreover, establish in the country occupied an authority
clothed with sufficient power to maintain order and to assure the
freedom of commerce.
In the general and final act of the Conference of Berlin, signed February 26,
1885, by Austria, Denmark, France, Germany, Great Britain, Italy, the
Netherlands, Luxemburg, Portugal, Russia, Spain, Sweden, Norway, Turkey
and the United States, the following rules were established for the subsequent
occupation of regions of the African continent:
Art. 34. The power which henceforth takes possession of a tract of land on
the coasts of the African continent, outside of its present possessions, or which,
being hitherto without such possessions, shall acquire them, as well as a power
which assumes a protectorate there, shall accompany the respective act with
a notification thereof addressed to the other signatory powers of the present
act, in order to enable them, if need be, to make good any claims of their own.
Art. 35. The signatory powers of the present act recognize the obligation
to insure the establishment of authority in the regions occupied by them on
the coasts of the African continent, sufficient to protect existing rights, and, as
the case may be, freedom of trade and of transit under the conditions agreed
upon.
WHEN OCCUPATION MAY BE CONSIDERED AS EFFECTIVELY
ESTABLISHED
1064. Every state may undertake to bring about the exploration
of deserted countries which are not in the domain of another state
and to effect the occupation thereof with the intention of acquiring
sovereignty.
1065. Occupation can be effected only by effective possession,
uninterrupted and permanent, of the territory desired, in the name
of the state. This effective possession cannot arise from a mere
diplomatic notification. The actual exercise of sovereign power is
indispensable.
METHODS OF ACQUIRING TERRITORY
425
By the terms of articles 34 and 35 of the general act of the Conference of
Berlin above mentioned, the diplomatic notification is required to confirm
the taking of possession; but possession can be considered as effective only
when the occupying state establishes in the occupied territory an authority
capable of assuring respect for the rights acquired and for the freedom of
trade and transit.
1066. The taking possession of regions discovered by explorers,
in the name of their country, cannot suffice to make effective an
occupation by the state, unless the latter has, in fact, undertaken
acts in its own name to confirm its rights of sovereignty over these
regions. Indeed, the exercise of sovereign rights in some effective
and permanent manner is always necessary to establish the acqui-
sition of newly discovered territory.
1067. Discovery of a country by unauthorized individuals
without the support or approval of their government may be
considered as sufficient to accord to the state of which they are
citizens the right of occupying this region in preference to any
other state. It is, however, incumbent upon the government
which has been notified of the discovery and which proposes to
profit by it, to notify, through diplomatic channels, its intention
to occupy the newly discovered territory; and it is always essen-
tial that it take possession and exercise sovereign rights in the
territory to render its occupation effective.
Even if the individuals who have discovered a new territory have raised
thereon the national flag or left an inscription on a momument erected by
them, or set up other evidences of discovery to fix the priority thereof, they
cannot be considered by this fact alone as having established occupation in the
name of their national state. It is always indispensable that the state exercise
sovereign rights in its own name.
1068. The period within which the state must, in order to render
its occupation effective, proceed with the occupation of territory
discovered by its nationals should be established uniformly by a
Congress. In the absence of such an agreement, however, after
the expiration of a reasonable time for occupation, if the gov-
ernment has undertaken no act with that end in view, it
must be presumed that it has tacitly renounced its right of pref-
erence.
1069. Inasmuch as the occupation must take effect by means of
acts of possession or appropriation carried out in the name of the
state, the acquisition of territory must extend to all parts which,
426
INTERNATIONAL LAW CODIFIED
according to rational principle, the nature of things and the physi-
cal configuration of the country, constitute a whole.
Compare rule 1037.
EXTENT OF OCCUPATION
1070. The effects of taking possession or appropriation cannot
extend to places where there already exist rights acquired by
another state, even though unexercised, unless there is a presump-
tion of abandonment.
1071. A state which is in legal possession of the mouth of a river
cannot thereby be considered as having occupied the entire hydro-
graphic basin of the river, if it has undertaken no act of sover-
eignty or appropriation with respect to the various regions which
are parts of the basin.
The hydographic basin of a river is very complex and may comprise territory
completely distinct, according to the hydography and the orography. There-
fore, on principle, the possession of the mouth of a river cannot imply the occu-
pation and acquisition of the entire basin of the river. This difficulty was
prominent in the controversy between the United States and Spain with re-
spect to the western boundary of Louisiana in 1815, and in that between Great
Britain and the United States with respect to the Oregon territory in 1846.
It is freely admitted that when a state possesses the mouth of a navigable
river, it has within its control a natural instrument for penetrating into the
entire region constituting the basin, but it cannot be admitted that the pos-
session of the mouth alone involves possession of all the country comprising the
hydrographic basin, although by reason of their hydrographic and orographic
configuration they constitute a single and homogeneous whole.
1072. A state which, without violating the principles of "com-
mon” law, has occupied the regions occupied by savage tribes not
formed into a political association, and which has appropriated the
territory, may be considered as having effected the acquisition of
all the country inhabited by the barbarous tribes which have
recognized its sovereignty.
The legal possession of the regions occupied must be con-
sidered also as extending to those of which the occupying state
has granted the use, under private title, to individuals. Conse-
quently, a third power claiming to have acquired these regions,
in whole or in part, from the natives, cannot thereby invalidate
the rights already acquired by the first occupying state, confirmed
by its appropriation of all the country, not excluding the territory
METHODS OF ACQUIRING TERRITORY
427
which it had already granted to the use and occupation of individ-
uals.
ACQUISITION OF TERRITORY BY ACCESSION
1073. A state acquires the portions of land which, by natural
causes, happen to unite in a permanent manner with the terri-
tory which is actually and effectively in its legal possession. As
such portions of land we must consider the accretions which,
through alluvion, form along the sea shore or the banks of a river,
the islands which form within the limits of the territorial waters
of a state, and the accretion, even if gradual, resulting from the
shifting bed of a river.
1074. Islands which form at the mouth of a river, and especially
deltas, must be regarded as acquired by acquisition by the state
to which the nearest bank belongs.
In the Treaty of Berlin of 1878, article XLVI provides that "islands formed
in the delta of the Danube, as well as the Island of Serpents, etc., shall belong
to Roumania."
A controversy arose between the United States and Great Britain with
respect to an island which had formed at the mouth of the Mississippi, which
Great Britain claimed as its own by reason of discovery by an Englishman.
In principle it cannot be assumed that islands, even though not occupied by
the state within whose possession are the waters in which the island forms,
can be regarded as res nullius. They must be considered as a dependent terri-
tory of the state and deemed to be comprised among the things within its legal
possession.
1075. If, between two states separated by a watercourse, a
considerable portion of territory belonging to one should be de-
tached by force of a cataclysm and incorporated into the territory
of another, the latter would acquire it by accession. Neverthe-
less, if the land detached were considerable and could be recog-
nized, the acquiring state ought to pay an indemnity to the other
state or to the private owners. And this indemnity ought to be
fixed by treaty or submission to arbitration.
Should the lands carried away be woodland belonging to the
state or private owners, and if a considerable quantity of wood had
been carried off by the violence of the waters of the river to the
opposite bank, the state or private individuals to whom the wood
belonged might claim it and the other state would be obliged to
restore it.
428
INTERNATIONAL LAW CODIFIED
ACQUISITION BY USUCAPTION
1076. Usucaption may be considered as a mode of acquisition
with respect to certain contiguous regions which may be regarded
as abandoned by the state to which they belong and which are
effectively occupied in the name of an adjacent state.
1077. Usucaption can be effective between two states, so as to
modify their respective rights over certain territory situated near
their respective boundaries only when the state which claims to
have acquired these territories by usucaption has actually occupied
them and exercised sovereign rights in a notorious and continuous
manner without opposition on the part of the other state and has
exercised its legal possession uninterruptedly and for a sufficient
length of time to legitimize its acquisition.
1078. The length of time should be established by agreement
among the nations. In the absence of such agreement it must be
fixed in such a way as to justify a presumption of the abandonment
of sovereign rights on the part of the state against which title is
claimed.
This presumption must be considered as founded on immemorial
possession, but, if it concerns the acquisition of unimportant
territory, a possession for fifty years might be considered as suffi-
cient.
Many controversies concerning the acquisition of certain portions of the
American continent took place between the European states which founded
their respective rights upon occupation and upon long continued possession.
Compare Calvo, Droit international public, $$ 283 et seq., $$ 1692 et seq.
TITLE BY ACQUISITIVE PRESCRIPTION
1079. Acquisitive prescription cannot, in principle, be deemed a
legal method of acquiring territorial sovereignty over a country,
based upon the exercise of sovereign rights for a certain period.
According to international law the claim of a third state which
asserts a legitimate title to a given territory by acquisitive pre-
scription cannot be supported. It may be admitted, however,
that possession de facto, although not legally legitimate originally,
if established and maintained during a considerable number of
years, which should be definitely fixed, may ripen into a title by
acquisition by virtue of the respect due to accomplished facts.
1
METHODS OF ACQUIRING TERRITORY
429
Acquisitive prescription is regulated by the civil law as a mode of acquisi-
tion among individuals. Nevertheless, it can be considered as based upon
rational law, which is equally applicable to states constituting the interna-
tional society
See Fiore: Nuovo Diritto internazionale pubblico, secondo i bisogni della civiltà
moderna (Milan, 1865), Sect. II, Chap. V, p. 181, and the translation of Pradier-
Fodéré (Paris, 1868), pp. 389, 394; Fiore, Parere giuridico sulla questione tra
il Peru e l'Equatore, Naples, 1906, pp. 52, 54.
1080. Any state which is in de facto possession of a territory may
assert the right of continuing its possession and defending it. It
may be regarded as a status of fact, to be respected by other states,
so long as the third power which seeks to contest its possession has
not established its own legitimate rights by conclusive proof.
1081. The claim of a third power contesting the de facto posses-
sion cannot be asserted during an indefinite period. A limit must
be fixed, admitting that, in principle, time may validate every-
thing and that one cannot indefinitely controvert the initial ac-
quisition.
A de facto possession, maintained for a long period of years,
fixed and determined, must be regarded as an obstacle to the ad-
mission of the contesting claim and may validate the acquisition
by virtue of prescription.
International law does not furnish any rules for determining the number of
years required for acquisitive prescription of sovereignty nor for ascertaining
the required conditions. Nevertheless, we believe that the principle of pre-
scription is indispensable in the interests of the security of states and the as-
surance of peace. Even though the original title of acquisition may be unlaw-
ful, if the de facto established possession could be forever contested, disastrous
consequences would follow, with a veritable chaos among the states of Europe
as well as of America. We admit, therefore, the necessity of some kind of
acquisitive prescription in international law. There should be referred to the
decision of a conference of states the delicate question of determining the
conditions for its application and for the validity of de facto possession, as a
final answer to the claim of another state. (See infra, concerning Conferences
of states).
The principal, or substantial reasons, which ought to be the basis for deci-
sion in this matter, should be founded on the present state of facts concerning
the territory in dispute. It would be necessary to ascertain whether the popu-
lation has recognized the authority of the sovereign who has exercised author-
ity there, and for how long a period the state has exercised its rights of control
and jurisdiction over the country and the population.
1082. Acquisitive prescription can have no value in the acquisi-
tion of sovereign rights as against the people who inhabit a terri-
tory to take by prescription the absolute and intangible right of
430
INTERNATIONAL LAW CODIFIED
the people to recognize or deny the sovereign power established and
exercised over them.
This may find its application in connection with possessions
acquired by conquest, colonial protectorate, or by means of spheres
of influence (hinterland) although these measures do not constitute
legitimate modes of acquisition.
See further, rules 1087 et seq., and 1093.
Sovereign power belongs in reality to the people and can be exercised legit-
imately only by him who has been invested with superior authority by the
people themselves. This, however, relates to the legitimate power established
according to constitutional law and in this respect prescription is absolutely
inoperative. Is the right of the people to govern themselves as they wish sus-
ceptible of prescription? No dynasty, however long its power may last, can
establish its right as against the people by acquisitive prescription. On the
other hand, from the point of view of international law, inasmuch as he who
governs de facto must be considered as sovereign, it must be admitted that that
fact, provided it be confirmed by long usage or duration, may constitute a just
title to sovereignty.
CONQUEST
1083. Conquest, which consists in the occupation by force of
the territory of another state, cannot per se be considered a legally
valid title to the occupied territory. It must always be considered
as illegal according to modern international law, whatever its
purpose may be.
1084. Conquest can never be a legitimate purpose of war. It
cannot be justified by the military occupation of a part of the
enemy territory and by its forced cession, imposed upon the van-
quished people as a condition of peace. It is necessary to apply
the rules governing the validity of treaties of peace in order to
decide whether the victor may appropriate a portion of the con-
quered territory.
Compare rules 241, 242, 559, and infra, concerning the validity of treaties
of peace.
1
1085. No state may justify the right of conquest either by the
theory of the balance of power or by invoking the utility of the
formation of a great national state, or by the diffusion of civiliza-
tion and promotion of progress. The appropriation of the terri-
tory of another state by force and its incorporation must be con-
sidered illegitimate under the principles of law.
1086. Although conquest per se cannot constitute a legitimate
METHODS OF ACQUIRING TERRITORY
431
mode of acquisition, nevertheless, when it is accomplished, when
the new conditions have by degrees been gradually accepted by the
population, and when the fact, illegal in its origin, has been grad-
ually legalized, conquest may result in the acquisition of conquered
territory, by reason of the necessity of accepting an established
condition strengthened by time and of respecting accomplished
facts.
Compare rules 1079, 1082, and the corresponding notes. See Oppenheim,
International Law, $ 236, 2d edition, pp. 302 et seq.
COLONIAL PROTECTORATE
1087. A protectorate may be deemed a legitimate mode of ac-
quiring territory inhabited by uncivilized tribes only when es-
tablished in accordance with the principles of conventional law
and when notified to the other powers, indicating the regions over
which it is asserted and showing that it does violate the principles
of “common” law.
According to article 34 of the Treaty of Berlin of February 26, 1885, the
state intending to assume a protectorate is obliged to notify the other powers
signatory to the act that it has undertaken a protectorate over the country
named; but, aside from such notification, the protectorate must become effec-
tive.
The protectorate over barbarous countries may be justified on the ground of
promoting civilization. Hence, it is indispensable for the protecting state
to effectively encourage the development of all kinds of civilizing activity
in the regions under its protection. Should it do otherwise, and should
the inactivity of the protecting state continue for an excessive period, another
power cannot be denied the right of substituting itself for the protecting power.
It seems to us, therefore, that the validity of a protectorate is subject to the
application of the same rules as the validity of occupation. This is the basic
idea of the rules which we have proposed.
1088. No state may establish a protectorate in Africa or in other
uncivilized countries by mere notification. The protecting state
must, in addition, undertake other acts to render its right effective,
namely:
(a) Establish a regular government, capable of protecting the
rights of individuals and assuring the freedom of commerce;
(6) Establish and assure order, peace and the exercise and legal
enjoyment of rights;
(c) Do everything which a state is bound to do in order to render
occupation of territory by occupation valid.
432
INTERNATIONAL LAW CODIFIED
1089. A mere verbal notification, not followed by any act of
sovereignty and jurisdiction, cannot be regarded as an effective
means of justifying the protectorate as an exclusive right, when
such notification is not followed by other acts required to make it
effective.
1090. The treaties concluded by the colonizing state with the
natives who have ceded the sovereignty over the territory in
which they live, assuming that the notification and the other rules
above mentioned have not been observed, cannot per se legally
constitute a valid cession upon which to base the legitimacy of the
acquisition of territorial sovereignty.
It may be noted that cessions agreed upon with the natives cannot per se
alone suffice for the acquisition of territorial sovereignty because barbarous
tribes have not the same conception of sovereignty that prevails among civil-
ized states and consequently cannot transfer what they are not conscious of
possessing.
Compare rules 877 et seq.; Fiore, Del Protettorate coloniale, Memoria alla
Reale Accademia di Napoli, v. XXVI, and Trattato di diritto internazionale
pubblico, 4th ed., v. II Appendix, p. 628.
1091. The colonial protectorate, supposing it to be effectively
established, cannot be deemed to extend beyond the limits within
which it may be regarded as effective. Its extent must be deter-
mined in accordance with the rules applicable to the extension of
title acquired by occupation.
If a protectorate could be acquired by mere notification it might comprise
an enormous extent of territory, much in excess of that in which the protecting
state may effectively exercise its sovereign rights. But the nominal protec-
torate does not seem to us sufficient to create an exclusive right in the protect-
ing state which has proclaimed and notified it.
1092. It is within the domain of international law to determine
the legal conception of a protectorate and to regulate it in accord-
ance with sound principles, so that it may not become an expedient
through which to effect, by unlawful means, the gradual expansion
of the colonial possessions of any state, and thus justify a dis-
guised form of conquest.
SPHERES OF INFLUENCE (HINTERLAND)
1093. The sphere of influence, established in common accord
by a treaty in the interest of each of the contracting parties, can-
not be deemed sufficient per se to attribute to the favored state
METHODS OF ACQUIRING TERRITORY
433
the right to acquire the territories indicated and comprised within
the line established as the boundary of its colonial activity.
1094. Any state may voluntarily limit the development of
its activity in barbarbous countries to the advantage of another
state, but the reciprocal obligations must be regarded as valid only
between the contracting parties. They may not entitle either
party to the right of territorial sovereignty over the territory
within their respective spheres of influence.
The development of the activity of each state may lead to the
acquisition of territorial sovereignty only when accomplished with-
out violation of the principles of international law.
1095. The right to colonize and to extend colonial possessions
in barbarous countries may be justified on grounds based upon
moral, economic and political considerations, but on condition of
maintaining intact the superior principles of justice and the su-
premacy of law.
The fundamental question of the right on the part of civilized states to colo-
nize barbarous countries and to extend civilization by means of spheres of
influence is naturally a complex one. It may rightfully be claimed that a
certain ratio between the extent of territory and the number of its inhabitants
is indispensable, and that it is extremely useful to open up new outlets to the
activity of civilized peoples, in order to enable them to extend the field of
their activity and production, so as to satisfy their ever increasing needs
through an increase of wealth. Yet this could not justify the employment of
any means to attain that noble end. It must always be remembered that in the
Magna civitas the supremacy of law must be maintained intact, and that on
civilized states is imposed the supreme duty of not disregarding the principles
of international law in their relations with uncivilized peoples. The whole
question of colonization and expansion by means of spheres of influence must
be governed by these high conceptions.
1096. The sphere of influence recognized by one or more states
in, favor of another state can never be assumed to authorize the
state in whose favor it is established to act with arbitrary freedom
and to carry out a disguised conquest.
There are numerous treaties relating to spheres of influence, among which
may be mentioned the following:
Germany and Great Britain, for East Africa and Zanzibar, of November 1,
1886, and July 1, 1890; and for Central Africa, of November 15, 1893.
Great Britain and Italy, for East Africa, of March 24, and April 15, 18
France and Portugal, for Guinea and Congo, of May 12, 1891.
Portugal and Congo, of May 25, 1891.
Great Britain and Portugal, for Central South Africa, of June 11, 1891.
Germany and Great Britain, of November 15, 1893, for determining their
respective spheres of influence in the Gulf of Guinea.
434
INTERNATIONAL LAW CODIFIED
Germany and France, of February 4, 1894, for determining their respective
spheres of influence in the Lake Tchad region in Africa.
Compare: Despagnet, Les occupations de territoires et le procédé de l'hinter-
land; Bonfils, Manuel de droit international public, 3d ed., by Paul Fauchille,
1901, XV, 558; Ernest Nys, Le droit international: Les principes, les théories,
les faits, v. II, pp. 28 et seq.
1097. International law must fix the legal organization of colo-
nial policy and regulate by just principles the rational expansion
of the respective domains of the colonizing states.
COMMUNITY OF INDIVISIBLE TERRITORY
1098. Community may take place between two or more states
which have rights of property over an indivisible possession.
1099. Each of the states in common ownership is bound to do
whatever is necessary to maintain the common possession under
the conditions required for its final purpose, and not to do anything
which may prevent its enjoyment or prejudice their respective
interests.
This rule may find its application in the case of a bridge uniting two adjacent
countries. Each has the right to prevent the other from injuring its own part
of the bridge, rendering it unfit for use, and may require the other to undertake
whatever may be necessary to render it fit for its purpose.
The rule may also be applied with respect to rivers flowing through or be-
tween two states. Thus, the upper state cannot alter a watercourse, stream
or river, to the prejudice of the lower state; neither can it modify the water-
course by means of falls, or build any work likely to affect the flow of water
or impair such flow through the territory of the lower state.
INTERNATIONAL SERVITUDES
1100. An international servitude is a territorial right in favor
of one state over the territory of another state. It can be consti-
tuted only by virtue of a title.
There are many examples of international servitudes. Under the treaty of
Utrecht of March 13-April 11, 1713, Great Britain, to which France ceded the
island of Newfoundland, granted to France the right of fishing on certain
shores of the island, and of using the banks to dry their fish, and of erecting
on certain coasts buildings necessary to conduct the fishery. This servitude
was confirmed in Article 5 of the Treaty of Paris of February 10, 1763, modified
by the treaty of Westphalia of September 3, 1783. The fishery constituted
the object of provisional agreements between France and Great Britain in
1857, 1884, 1885, 1890 and 1891, and gave rise to a convention of arbitration
signed at London March 11, 1891.
Another example of such servitude is found in the right of passage granted
to Prussia to communicate with its Rhenish provinces, which it could reach
only through Brunswick, Hanover and Hesse.
METHODS OF ACQUIRING TERRITORY
435
Another case of international servitude is contained in the treaty concluded
in 1873 between Russia, the Emir of Bokhara and the Khan of Khiva, by
which Russia acquired the right to build bridges, custom houses and landings
on the left bank of the Amu-Daria.
These servitudes, which are true territorial servitudes, must not be confused
with others, also named international servitudes, but which, in reality, are
limitations of the right of sovereignty and consist in the fulfillment of a per-
sonal obligation, such as the dismantling of fortresses, or the construction of
certain works to maintain a strait in a navigable condition. A servitude
proper always implies the active exercise of a territorial right and a passive
obligation on the part of the servient state.
The name servitude is also applied to certain limitations upon the rights of
territorial sovereignty, such as the servitude not to build either fortresses or
military establishments imposed upon one state for the advantage of another
state. Thus, under article 29 of the Treaty of Berlin of 1878, there was im-
posed on Montenegro a subjection to the exercise of maritime and sanitary
police on the part of Austria at Antivari as well as on the coasts of the Adriatic
Sea.
[The United States supported its principal contention under Question 1
of the North Atlantic Coast Fisheries Arbitration compromis with Great
Britain, 1910, on the assertion that the treaties of 1783 and 1818 established
an international servitude in favor of the United States, exempting American
fishermen from obedience to British fishing regulations, a contention which
was not sustained by the Tribunal. See the Proceedings, Senate Doc. 870,
61st Cong. 3d. Sess., v. 1, 9, 11; and the valuable compilation of extracts from
the writings of leading authorities, particularly Clauss, prepared by Dr. James
Brown Scott in connection with the arbitration (Washington, G. P. O., 1910)
--Transl.)
1101. A servitude must be regarded as a permanent relation
with respect to realty, that is, a territorial right supported by the
servient state for the advantage of the dominant state. As long
as the title which established it subsists it passes with the legal
possession of the territory to which it is attached, so far as con-
cerns both the dominant and the servient state. A servitude, like
every other exceptional right imposed as a limitation upon sover
eign rights, must be interpreted restrictively and least prejudicially
to the territorial rights which, by "common” law, belong to the
servient state.
1102. The servitude may become extinct:
(a) By a convention to the contrary or by a denunciation of the
treaty which created it;
(6) Through the consolidation of the two territories, servient
and dominant, under one sovereign;
(c) By express or tacit renunciation on the part of the dominant
state.
TITLE IV
PROPERTY OF THE STATE AND TAXATION
GENERAL PRINCIPLES
1103. Every state has the exclusive enjoyment of the property
which, according to constitutional and municipal law, constitutes
what may be called the fiscal patrimony of the state, and of all
the funds and securities intended to constitute the public Treasury.
The sovereignty of the state, in order to provide for the administration of its
finances, concentrates in its hands an ensemble of funds and securities which is
constituted in part by the sums levied upon individuals under the form of oblig-
atory contributions or taxes, in part by certain lucrative rights and privileges
which the state exercises under the form of profitable public services, viz, rail-
roads, posts, telegraphs, etc., or fiscal industries and monopolies. The state
also derives funds from deductions made from the income of individuals under
the form of progressive income taxes, inheritance taxes, etc. The sum total of
all the sources of income designed to satisfy the needs of the state constitutes
the public treasury and is the object of its fiscal administration.
1104. The sovereign power of each state should exercise its
patrimonial and fiscal rights in order to meet the requirements
of the public treasury in such manner as not to injure the general
interests of the Magna civitas, and without violating the principles
common to the life of all nations and peoples.
In principle, a state is unquestionably free to provide as it wishes the best
method of enjoying its rights; nevertheless, as the exercise of the sovereign
rights of the state must be brought into harmony with the general interests
of the Magna civitas, so it must be with respect to the rights relating to the
fiscal patrimony, contributions and taxes, which, under some form, are de-
signed to satisfy the needs of the treasury. Even in these matters the inde-
pendent autonomy of the state must submit to certain just limitations im-
posed by the necessities of the common life of the society of states.
1105. International law must establish general rules governing
the exercise of the fiscal and property rights of every state, so as
to bring them into harmony with the exigencies of the society of
states. This should be the case with respect
(a) To the system of taxation and especially the customs sys-
tem;
436
PROPERTY OF THE STATE AND TAXATION
437
(6) To the operation of railroads and railroad transportation;
(c) To the postal and telegraph service;
(d) To the means of communication.
TAXATION
1106. Taxes constitute a part of the property of the state. They
consist in the ensemble of obligatory contributions which the state
is authorized to levy upon individuals in order to provide for the
necessities of the state.
1107. The right of resorting to taxation in order to meet the
financial requirements of the state may be freely exercised by
every government in conformity with its public law and cannot be
considered as limited with respect to foreigners, except by virtue
of provisions of treaties in force and by the rules of international
law which limit the autonomy of every state in this respect.
It could not be considered in conformity with the principles of international
law to submit aliens to a direct form of obligatory contribution, in exchange
for their enjoyment of rights which have been called the international rights
of mankind, mentioned in Title XXIII, Book I. Compare also rules 255 and
256. In modern legislation the various forms of exorbitant taxes imposed
upon aliens and designated under the general name of droit d'aubaine have
been abolished.
1108. It may be considered in harmony with the principles of
international law, equity and justice to subject to the payment of
taxes merely such aliens as are permanently established in the
state, and not to expand, by other imposts, the system of taxation.
Aliens must be permitted to engage in trade and commerce, to
acquire property, to sue and be sued, and to obtain the protection
and security of their persons and property, without subjection to
continual extortion. They must only bear certain special reason-
able taxes, which may be considered as the equivalent for the local
protection which is assured them and for the public service which
they receive from the state.
CUSTOMS SYSTEM
1109. Every state may, through its customs system, freely
regulate imports and exports in accordance with the principles
which it deems most desirable for the promotion of trade and
438
INTERNATIONAL LAW CODIFIED
commerce or protective restrictions. It may also, by means of
treaties, reduce or modify its customs tariff in favor of one or more
states.
1110. A state which, by treaty, grants favors to the citizens of
one state but refuses them to citizens of another state or which,
in the absence of treaties, applies the rule of reciprocity does not
violate international law by thus establishing an inequality of
treatment.
1111. States must recognize the reciprocal advantage of ex-
tending customs unions in order better to assure the development
of trade and industry, to encourage the international diffusion of
labor through free exchanges and to facilitate international com-
petition and production.
Customs unions may be useful for states which have homogeneous interests
and which find themselves in analagous conditions with respect to means of
production, circulation, and exchange. One of the most important and pros-
perous customs unions was that between the states of Germany which com-
menced with the treaty concluded by the governments of Bavaria and Wurt-
emberg in 1827, under the name of the Bavarian League (for the history of
the formation and development of the German Customs Union called Zoll-
verein, see Calvo, Droit international, v. I, $$ 79, 80).
A project of an American Zollverein proposed by the United States at the
international conference assembled at Washington in 1890 was not accepted
by all the states; it met with a great deal of opposition especially on the part of
the Argentine Republic (see Calvo, op. cit., v. VI, Supplément Général, $ 348).
Some authorities maintain the utility of an European customs union to
counterbalance the competition of America with Europe and which Asia will
soon offer. See in this connection Molinari's article in Journal des Econo-
mistes, 1888.
A very useful institution created in the interest of international commerce
is that created on the initiative of Belgium, consisting in the establishment,
through an international agreement, of a bureau located at Brussels for the
publication of the customs tariffs of all the signatory states. At the confer-
ence held for that purpose March 15-21, 1888, there were represented twenty-
five states. Following the conference of July 5, 1890, the convention for the
creation of an international union was signed by thirty-four states and the
international bureau established at Brussels April 2, 1891. It is operated under
the supervision of the Minister for Foreign Affairs of Belgium.
1112. The customs system can have the character of a perfect
customs union only between the signatory states. Hence, in order
to constitute a perfect union, it will be necessary to abolish the
customs boundaries between the contracting states, to institute a
single customs frontier separating the union from the non-signatory
states, to promulgate uniform legislation and a common customs
PROPERTY OF THE STATE AND TAXATION
439
tariff and create a single customs administration. All these may
be advantageously established by a treaty among states having
common commercial interests.
CUSTOMS SYSTEM IMPOSED UPON A STATE
1113. No state may impose a customs system upon a weaker
state by compelling it to sign a treaty framed for its exclusive
advantage.
1114. A state which, through the favorable issue of a war,
would compel a weaker state, powerless to sustain competition,
to adopt a customs system designed for its exclusive advantage,
would be guilty of a culpable abuse of power, which would justify
the moral support of the other governments in favor of the weaker
state in order to prevent such a disastrous situation. If the ruinous
consequences to the defeated state were evident, they might jus-
tify the collective interference or interposition of the other states
in order to prevent and end such an abnormal condition.
Compare rules 557 and 559.
INTERNATIONAL RAILROADS
1115. States situated in the same section of a continent must
assign to railroad lines connecting contiguous states the character
of international railroads. They must be deemed jointly and
severally bound to assure their regular operation, conceding to
every one the right to use them freely for commerce and inter-
course,
1116. International railroads must be regarded as intended to
promote the moral and economic development of civilized peoples
and, while safeguarding the rights of territorial sovereignty, must
be placed under the protection of international law in so far as
concerns their peaceful use, the safety and regularity of operation,
the facility and economy of transportation and the guaranty of
private rights.
1117. States in the same section of a continent crossed by con-
necting railroads must agree upon the adoption of international
regulations, subjecting to common rules the operation of and
transportation on these international railroads.
440
INTERNATIONAL LAW CODIFIED
INTERNATIONAL RAILROAD REGULATIONS
1118. International railroad regulations must provide for the
transportation of passengers and merchandise, for the uniformity
of tariffs and rates, for the responsibility of the railroad manage-
ment in all cases of delays, damages, losses or analogous matters,
for the construction of the necessary buildings on the frontier
zones of contiguous states, so as to facilitate the service and im-
prove the traffic, and for the apportionment of the expenses in-
curred in these operations, without any discrimination between
nationals of the states crossed and foreigners.
1119. The international railroad regulations adopted by states
through a treaty must be regarded as obligatory even upon private
companies which have constructed lines at their own expense or
which have a monopoly of operation. Every state is bound to
compel these companies to observe the regulations, subject to its
responsibility for all the consequences of their non-observance by
the companies, if it failed to adopt effective means to compel them
to comply with and fulfill the obligations assumed by the state
under the terms of the international convention.
1120. The international railroad regulations must be deemed,
so far as their execution is concerned, under the legal protection
of the states connected by the railroad and signatory to the treaty,
and any question which might arise among these states with ref-
erence to the execution of the treaty should be referred to an arbi-
tral tribunal
A convention for the transportation of freight by railroad was concluded at
Berne, October 4, 1890, between Germany, Austria-Hungary, Belgium, France,
Italy, the Netherlands, Russia and Switzerland by which “common” legal
rules were established among the signatory states, regulating the contract of
international railroad transportation and also determining the responsibility
of the management and the rules governing actions for damages. [A standard
authority on the Berne convention and on international railroad transporta-
tion in general is the late Georg Eger, who wrote numerous works on the
subject-Transl.)
TRANSPORTATION OF FREIGHT BY INTERNATIONAL RAILROADS
1121. In the absence of a special treaty governing international
railroad transportation the principles of “common” law relating
PROPERTY OF THE STATE AND TAXATION
1
441
to the contract of transportation will be applied to the carriage of
freight on an international railway, from the point of shipment to
the point of destination or delivery of the goods.
1122. Actions at law against railroad managements, arising out
of the contract of transportation, subject to the conditions re-
quired for their legal institution, may be brought against any one
of the constituent roads of an international railroad which has
participated in the international carriage of the freight.
1123. A railroad which has by bill of lading accepted freight for
transportation is responsible for the fulfillment of the transporta-
tion on all connecting lines to the point of destination. Every
successive connecting railroad, by the very fact of shipping the
freight on the original bill of lading becomes a party to the con-
tract of transportation and is obliged to execute it to the point of
destination.
1124. The managements of the various railroads which have
successively taken up the carriage of the goods confided to them
on the original bill of lading, will be considered as parties to the
original contract of transportation and bound to execute it in con-
formity with such bill, and will be held responsible for its execution.
1125. The right of legal recourse against railroad managements
resides, by reason of the contract of international transportation,
in the shipper or consignee of the goods, and may be brought either
against the carrier who received the goods and issued the original
bill of lading, or against each connecting carrier which successively
participated in the international transportation, or against the
carrier on whose line the loss or damage occurred, subject, however,
to the right of subrogation, which is always reserved to the partici-
pating carrier. In either case the action can be brought only in a
competent court in accordance with the rules of “common” law.
1126. A connecting carrier which has participated in a contract
of international transportation is responsible for the loss, total or
partial, or damage to merchandise from the station or point where
it undertook the carriage to the point where it made delivery to the
next connecting carrier. Each public carrier is relieved of its re-
sponsibility by proving that the damage resulted from the act of
the claimant himself, either the shipper or the consignee, who had
modified in transit the conditions of the bill of lading, or by prov-
ing that the damage arose through an inherent defect in the goods
442
INTERNATIONAL LAW CODIFIED
(natural deterioration or spoiling), or from a natural fact (congeal-
ing or leakage of a liquid) or through an Act of God or force ma-
jeure.
1127. When the bill of lading mentions a place of destination
which is not a railroad station the contract of international trans-
portation must be considered as perfect and executed upon the
arrival of the goods at the last station of the railroad. In so far
as concerns the ultimate carriage of the goods to a consignee not
located at the place of the last station of the railroad, it is proper
to apply the railroad regulations in force at the place where the
station is located in all matters relating to the delivery of the goods
and the responsibility of the final carrier.
The above rules are based upon the principles of "common” law relating
to railroad transportation. The contract must be considered as concluded by
the mere fact of the acceptance of the goods at the point of shipment for their
transportation to the place indicated in the bill of lading.
The station master at the point of shipment, who has certified the acceptance
of the merchandise by delivering a duly signed and sealed bill of lading, indi-
cating the date of acceptance of the goods, has thus undertaken the contract
of transportation and the obligation of executing it for himself and for the
connecting carriers, by ordinary means; consequently, the shipment must
remain subject to the rules of "common” law which govern contractual re-
lations. The same rule applies to the station master of successive lines who
receives the merchandise with the bill of lading or way bill and duly receipts
therefor. He thus establishes the acceptance of the goods and assumes the
obligation to continue the transportation. He consequently participates in the
execution of the contract, becoming responsible for any damage arising through
non-execution or defective execution, upon the condition, of course, that the
carrier which assumes the transportation, either the first carrier or a connecting
carrier, and continues it, also assumes the position of a common carrier. Hence
it must be admitted that the railroad is subject to all the obligations imposed
upon a carrier of goods, and is responsible even for its employees and any
other persons to whom it entrusts the obligation of executing the contract of
transportation.
1128. The regulations of different individual carriers, denying
or limiting their responsibility and obligations contrary to the
principles of “common” law relating to the contract of transporta-
tion, cannot be regarded as valid so far as concerns the interna..
tional railroad transportation. In the absence of positive rules
established by treaty, the transportation must be governed by the
principles of international "common" law and not by the regula-
tions of the various carriers in derogation of those principles.
This rule rests upon the principle that international transportation has, by
the nature of things, the true character of an international contract. The
PROPERTY OF THE STATE AND TAXATION
443
question may arise according to the law of each country, whether railroad
companies may, by their regulations, reject or limit their liability contrary to
the principles established by the municipal law which governs in matters re-
lating to railroad transportation. The legislation of certain governments
excludes this possibility absolutely. This is the rule in Italy which, in the new
Commercial Code, regulates by special articles the contract of railroad trans-
portation and has fixed the responsibility of railroad carriers and removed
every doubt upon the validity of railroad regulations by the following provi-
sions of Article 416:
“Stipulations rejecting or limiting the obligations and responsibilities enu-
merated in articles 392, 393, 394, 400, 402, 404, 405, 407, 408, 411 and 415 are
null and void, even if they are permissible under general or special regulations,
save when the limitation of responsibility is accompanied by a reduction of the
freight rate established in the ordinary tariffs, set forth in special tariffs.”
Supposing that this provision is not incorporated into the legislation of a
foreign country and that the local carrier has, by its regulations, denied its
'common” law responsibility for the execution of the contract of transporta-
tion; in our opinion the regulation would not be valid to limit its responsibility
for the international transportation. In fact, since the contract, by its very ob-
ject and nature, has the inherent character of an international contract, the
question of the responsibility of the carrier who has undertaken to execute
the contract, must be resolved according to the principles of international
“common” law, and not according to the regulations which, at the utmost,
may be applied to contracts made and executed wholly within the territory
of the state. To remove every uncertainty it is eminently desirable that the
states establish a uniform law in the matter of international transportation.
Nevertheless, we repeat that in the absence of any international convention,
justice requires that difficulties and controversies be settled according to the
principles of “common” law.
INTERNATIONAL TELEGRAPH LINES
(
1129. It is incumbent on every state to consider telegraph lines
which connect contiguous states as intended to maintain relations
of international intercourse and commerce, and a state must exer-
cise its own rights over them in such manner as not to impair the
general interests.
The peaceful use of international telegraph lines must be under
the protection of international law.
1130. Save for the right of every state to defend its rights of
sovereignty over telegraph lines within its territory, to protect
its interests and to prevent the lines from being employed in a
manner prejudicial to public security and order, no state may so
exercise its own rights as to violate the right of all persons, without
distinction, to use international lines for telegraphic communica-
tion.
444
INTERNATIONAL LAW CODIFIED
1131. It is incumbent upon all states to enact uniform legisla-
tion governing the use of telegraph lines. On its part, every state
must bring its municipal laws into harmony with the rules adopted
in common accord, and will be responsible for its failure to do so.
1132. The regulations for the operation of international tele-
graph lines must fix the tariffs, the supervision, the priority of
official dispatches, establish and keep the lines in repair and pre-
scribe the proper measures to prevent their destruction or deterio-
ration.
In the absence of such regulations the rules of “common” law
and those stipulated in treaties must be observed.
International telegraph service was regulated by the treaty concluded at
St. Petersburg July 10/22, 1875, under which a union was formed by numerous
states. See the regulations of July 22, 1896, and July 10, 1903.
1
OPERATION OF INTERNATIONAL TELEGRAPH LINES
1133. No telegraph lines may be established or extended in or
over the territory of a state without the previous consent of the
state. Except for the right to lay submarine cables in the high seas,
therefore, it is unlawful to prolong the lines and extend them into
the territorial waters of a state without the consent of the state.
1134. The right of every state to grant or to deny authorization
to prolong a telegraph line is inherent in its right of autonomy and
independence, even when such extension is necessary to connect
two international lines. Nevertheless, the unjustified refusal of a
state to permit the extension of lines might be deemed arbitrary
and might justify indirect measures of constraint and reprisal,
provided good offices have failed to obtain the desired authoriza-
tion.
1135. When an international telegraph line is in actual opera-
tion, no government may suspend the use of that portion of the
line on its territory without proper official notice.
1136. The right of a state to suspend the use of international
telegraph lines on its territory for certain classes of messages or
for all messages, by giving public notice, may in all cases be recog-
nized only for dispatches originating in or destined for its terri-
tory, but cannot extend to dispatches in transit or those addressed
in time of peace from one state to another state.
PROPERTY OF THE STATE AND TAXATION
445
VIOLATION OF DISPATCHES IN TRANSIT
1137. Every government should, by its criminal law, punish
any interference with international dispatches in transit as it does
those transmitted within the state.
1138. Every government must also take administrative meas-
ures, in the absence of criminal proceedings, to prevent any arbi-
trary or unlawful interference of private persons in the regular
operation of international telegraph lines, and to provide that
persons responsible for any unnecessary delay in the transmission
of messages, resulting in damage, shall be held personally liable.
SUBMARINE CABLES
1139. That portion of submarine cables which is outside the
territorial waters of a state must be deemed under the protection
of international law, so far as the establishment and preservation
of cables are concerned.
1140. To cut or to injure a submarine cable, intentionally or
through culpable neglect, the result of which may be partly, or
completely, to interrupt telegraphic communication, is to be
deemed a violation of international law, and should be punished
when it bears the character of a criminal act, without prejudice to
a civil action for damages.
1141. Every state must recognize that for the protection of the
general interests, it is necessary to confer on the war vessels of all
countries the right to repress and prevent the cutting or injury of
submarine cables on the high seas and to arrest offending or sus-
pected individuals, in order to bring them to trial before a compe-
tent court according to the general rules of criminal jurisdiction of
offenses committed on the high seas.
1142. The states signatory to the convention for the protection
of submarine cables, concluded at Paris, March 14, 1884, are
bound to comply with its provisions, the observance of which must
be considered under the collective guaranty of all the signatory or
adhering powers.
The convention of March 14, 1884, was originally signed by the following
states: Austria-Hungary, Argentine Republic, Belgium, Brazil, Colombia,
Costa Rica, Denmark, France, Germany, Great Britain, Greece, Guatemala,
446
INTERNATIONAL LAW CODIFIED
Italy, Netherlands, Persia, Peru, Portugal, Roumania, Russia, San Salvador,
Santo Domingo, Spain, Sweden and Norway, Servia, Turkey, United States
and Uruguay.
INTERNATIONAL POSTAL SERVICE
1143. Every state is bound to facilitate the development of
postal communication and so to exercise its sovereign rights over
this service as not to interfere with the free right of international
correspondence, which must be protected and encouraged.
1144. No state, under its rights of territorial sovereignty, may
be deemed authorized to interfere with postal intercourse or to
violate the secrecy of correspondence, even upon a well founded
ground of political or administrative interest. It may be admitted,
however, that for very serious reasons connected with public
security, a government may suspend the sending or delivery of
newspapers, giving notice of such a measure through all possible
means of publicity.
1145. The postal service between states, so far as concerns its
free exercise and the observance of the two preceding rules, must
be deemed under the protection of the civilized states of the
world.
1146. The states which subscribed the Postal Union Convention
of June 1, 1878, the additional act of March 21, 1885, and the
subsequent regulations relating to that convention, and the other
states which subsequently adhered thereto, must faithfully carry
out their agreements, subject to reservations made by any state
at the time of signature or adherence to the original treaty.
The international postal union has the true character of a universal union
of all civilized states, which have agreed to regulate the important public
service of international correspondence in the best and most economical man-
ner. Besides the ordinary postal service the agreement referred to the ex-
change of registered letters with a declared value, postal orders and parcel
post, and to the service of collecting letters and bills of exchange (see the
treaty of March 21, 1885).
TELEPHONES
1147. International correspondence by telephone and public
operation of the telephone service should be governed by analogy
by the rules concerning telegraphic correspondence.
PROPERTY OF THE STATE AND TAXATION
447
MARITIME POSTAL SERVICE
1148. Correspondence maintained by means of mail steamers
must be protected in conformity with international law by appli-
cation of the rules governing navigation and the landing of mail
steamers.
Compare rules 327 et seq.
ROADS AND HIGHWAYS OF COMMUNICATION
1149. No state may, without violating international law, deny
the inoffensive use of public roads to foreigners who desire to use
them as a means of communication and transit for the carrying on
of peaceful commerce.
Nevertheless, every state has the right to regulate the use of
and transit on its public roads, so as to assure public order and the
security and defense of the state.
1150. A state which, without grave reasons, refuses to facilitate
communication with foreign countries, violates international law.
The object of this rule is to concede that well founded international require-
ments might be the basis of a sort of lawful servitude of transit, in the sense
that an intermediate state could not, without committing an arbitrary act,
interfere with the right of travelling freely over the world, by placing impedi-
ments in the way of the free development of international activity and by its
refusal to permit the transit necessary for international commerce. Let us
suppose that, for such purpose, it may be useful to build a tunnel, and that a
state, without good reason, on the one hand, refuses to contribute its share to
the work, and on the other hand, does not allow the other interested states to
construct it at their own expense; its unjustified opposition ought to be re-
garded as arbitrary and ought to give rise to collective remonstrances and the
use against it of indirect pacific means to compel it to withdraw its opposition.
PEACEFUL USE OF ISTHMUSES
1161. The right to the inoffensive use of channels of communica-
tion must include also the use of isthmuses, whether they consti-
tute a part of the territory of a state or belong in common owner-
ship to several states, and, saving the right to regulate such use by
administrative and financial laws, the restriction of the use of
isthmuses to citizens or rendering their use by foreigners onerous
and difficult, must always be regarded as an arbitrary act.
i
TITLE V
PROPERTY BELONGING TO PRIVATE INDIVIDUALS
GENERAL PRINCIPLES
1152. Real and personal property in the state, although belong-
ing to private foreigners, must be subject to the authority of the
territorial sovereign who has eminent domain over all the territory
of the state and over things which must be regarded as constitut-
ing part of the territory.
Compare rules 246 et seq., 291 et seq.
1153. International law must determine the just conditions to
which foreigners must be subjected in the exercise and enjoyment
of their rights within a state, so as to co-ordinate the free enjoyment
of those rights with the interests of the territorial state and of its
inhabitants.
1154. All the laws of the state relating to things, considered
by themselves and independently of the persons to whom they
belong, must have an absolute authority ergo omnes. The same
rule applies to the laws governing the exercise of rights over mova-
ble and immovable property designed to safeguard the id quod ad
universitatis utilitatem spectat, and which constitute the social and
public law of the state.
1155. The laws which govern the rights of private persons over
property, with a view to regulating the id quod ad singulorum
utilitatem spectat must, in principle, exercise their authority only
upon persons over whom the legislature has authority.
1156. No state may, without violating the principles of "com-
mon” law, subject to its laws all the personal rights of foreigners
over movable and immovable property in its territory nor de-
termine the extent of such rights. On the contrary, the state must
recognize, in principle, the authority of foreign laws which, accord-
ing to the principles of "common” law, are designed to determine
and govern a foreigner's rights over property wherever it may be,
448
PROPERTY BELONGING TO PRIVATE INDIVIDUALS
449
on condition that their exercise and enjoyment by the owner shall
not involve a breach of the municipal public law or public policy
governing property.
1157. Legislative jurisdiction to determine personal rights over
property derived from family relations, succession or any other
title, cannot be attributed to the sovereignty of the state in which
the property is located, but must be established according to the
rules of private international law.
Exclusive legislative jurisdiction of the territorial sovereign
must be recognized only in the cases which come within rule 1153.
The rules proposed are based upon the principles which we enunciated in our
younger days, in the first volume of the science which for 43 years has been
the object of our study. This is, in effect, what we wrote in 1865, in chapter
VIII, p. 133, of our Nuovo Diritto internazionale pubblico:
“We cannot speak of the public law of a state in the same light as we
have spoken of its private law. The public law has as its object the mainte-
nance of the social organization, and to that end the persons and things within
the national territory must be subject to the principles of the public law of the
territorial state. The right of every state to regulate the private life of its
subjects may be exercised in foreign countries so long as the use thereof is
inoffensive, that is to say, so long as it is not derogatory to the principles of
public law of the foreign state.
“It follows from what we have just said, that the status and capacity of
persons, wherever their rights may be exercised, the legal status of the family,
the rights and duties of the individuals who compose it and the effects of such
rights and duties upon the property of the family and its members in different
parts of the world, the obligations arising out of contracts relating to property
and other analogous matters, must be governed by the national law, and the
citizen in his legal and international relations may rightfully invoke in the
territory of every state the application of the law which governs his status
and that of his family, even in relation to property wherever situated, as well
as the law which has first governed the agreements and relations entered into
by him, provided that the application of the law in the territory of a foreign
state is not prejudicial to its political and economic interests, nor contrary to
the principles which the legislature has fixed as laws of public policy.
See the French translation by Pradier-Fodéré, Paris, 1868, v. I, pp. 297, 298.
We have set forth these principles at some length in our Diritto interna-
zionale privato, Florence, 1869, and at greater length in the 4th edition, Turin
and Paris, 1902. Most present day writers have developed the same theory,
especially Laurent in his important work Droit civil international, published
in 1880.
1158. Civilized states should establish by treaty uniform rules
concerning the legislative jurisdiction of the territorial state and
of the foreign state in regard to the exercise and enjoyment of
rights over property situated within their respective territories, in
order to determine the authority of the territorial law or of the
450
INTERNATIONAL LAW CODIFIED
foreign law which must govern all relations with respect to prop-
erty. This would avoid the conflict of laws.
Considering that, in principle, a state cannot claim the right of subjecting
to its laws all legal relations concerning property in its territory, and that it is
only. entitled to this right when it involves safeguarding the political and eco-
nomic interests of the state and its inhabitants it can readily be seen that un-
less the legal limits of the legislative jurisdiction of the territorial sovereignty
are fixed conflicts involving the legislative jurisdiction of each state, which
only a treaty on the subject can avoid, are inevitable.
REASONABLE RULES CONCERNING THE LEGISLATIVE JURISDICTION
OF STATES
1159. In the absence of a treaty on the subject, the legislature
of each state may establish rules binding on the courts of the
country. Failing such rules the courts must, in determining the
law applicable, rely upon the general principles of private inter-
national law as in all cases where there exists no rule of positive
law.
Undoubtedly the legislature of each state has not the power to proclaim
rules of private international law. Nevertheless, it may furnish the courts
with rules to determine which laws are to be applied in deciding cases
submitted to them. Such rules, which are not obligatory upon foreign courts,
are binding upon the judges of the territorial state.
The Italian legislature has thus sanctioned in articles 7, 8, 9, 10 and 12 of the
general provisions of the Civil Code, the rules regarding the authority of the
Italian law when in conflict with the law of other states. The German legis-
lature has done the same in the introductory law to the Civil Code of Au-
gust 7th, 1896.
The rules provided for by each legislature are binding upon the judges of
the territorial state, and their violation or misapplication may give rise to an
appeal to the higher courts, as in the case of the violation of a territorial law.
Compare Fiore: Delle disposizioni generali sulla pubblicazione, applicazione e
interpretazione delle leggi, Naples, Marghieri, 2d ed., v. 2, p. 640, no. 449, and
Trattato di diritto internazionale privato, 4th ed., Leggi civili, v. I, p. 265, No. 273.
See also, Demangeat, Introduction to Journal du droit international privé, v.
I, 1874.
1160. Legislative jurisdiction as regards personal rights over
property should be ascribed to the state which, as against others,
has the power to regulate the title upon which the owner bases
his right.
1161. Legislative jurisdiction concerning property situated in
the territory of the state, considered objectively, must be ascribed
exclusively to the territorial sovereignty.
PROPERTY BELONGING TO PRIVATE INDIVIDUALS
451
This sovereignty has not only the power to determine the legal
status of property, but has also the power to fix the conditions
necessary for the validity of rights in rem and to determine the
legal recourse which the owner may have as to his own property or
that of others situated within the national territory.
Compare rules 291 et seq.
1162. No right belonging to one person as against other persons
with respect to property in a given state (jus ad rem) may legally
subsist and be effectively exercised as a real right (jus in re) with
power of bringing a real action (actio) except in conformity with
the territorial law, which has exclusive jurisdiction of the matter.
The actio, as a form of legal protection of a real right (jus in re) implies the
power to act directly upon the property, in whosesoever hands it may be, and
to make use of the coercive means allowed by the law to claim, maintain and
defend one's right and to reject any demand on the part of others. It is clear
that all this must be regulated by the territorial law of the state having do-
minion, jurisdiction and the power of authorizing and sanctioning the use of
coercive measures. Any form whatever of interference in such matters on the
part of a foreign sovereignty would be inconsistent with the autonomy and
independence of a state. The principle extra territorium jus dicendi impune
non paretur may be appropriately invoked.
Compare rule 293.
1163. Legislative jurisdiction must be recognized on the part
of the territorial sovereignty in the following respects:
(a) To exclude every real relation between persons and things
on the national territory, if that relation cannot subsist without
prejudice to the territorial public law or the rules of public policy.
(6) To determine the principal conditions essential in order that
the right over the property may be considered legally valid and
effective;
(c) To fix the forms of public notice or record absolutely essen-
tial in order that the right over the property may be deemed valid
as regards third parties;
(d) To limit the exercise and enjoyment of rights over property
with a view to safeguarding the public interest and the organiza-
tion of landed property and to assure the protection of the rights
of property;
(e) To regulate the effects of possession and the legal conse-
quences arising from a state of facts and relations established be-.
tween persons and property within the national territory.
452
INTERNATIONAL LAW CODIFIED
We cannot here develop the principles which serve as the basis for this rule.
This has been done in our other works. See: Fiore, Diritto internazionale
privato, and paper read before the Royal Academy of Naples Sulla limitazione
dell'autorità delli leggi straniere; determinazione delle leggi di ordine pubblico,
Atti, v. XXXVIII.
We will explain our views by means of examples:
(a) The territorial law may prohibit trusts, irredeemable rents, or mortmain;
(b) The territorial law may absolutely require written consent for the sale
of real property;
(c) The territorial law may require the registration or recording in a regis-
tration office of all transfers of property or a specification of mortgages, in
order to give them effect with respect to third parties;
(d) The territorial law may prohibit the leasing of immovables for more than
thirty years, sub-emphyteusis, or joint ownership beyond a certain period of
years;
(e) The territorial law may govern possessory actions; forbid spoliation;
regulate the effects of possession upon third parties, admitting that possession
in good faith is equivalent to title with respect to third parties; or may fix the
rules of acquisitive prescription.
1164. Legislative jurisdiction concerning rights over property
which constitutes a decedent's estate, whether personal or real
(limiting such jurisdiction, however, to the order of succession or the
measure of distribution) must be ascribed to the state having
authority to regulate family relationship and the rights of its
members, subject, however, to the power of every territorial
sovereignty to establish by its own laws the necessary measures
to render the succession effective and to determine the cases in
which the effective scope of this right of succession must be limited.
The principle inspiring this rule is sanctioned by Italy in article 8 of the
general provisions of the Civil Code, which recognizes the authority of the
national law of the deceased to regulate the order of inheritance and the meas-
ure of distribution, whatever the nature of the property and wherever situated.
The Italian legislature has thus regulated the right of succession considered as a
personal right over the patrimony of the deceased; but the legislature could
not and did not intend to grant a real right over the immovables of the de-
ceased. On the contrary, in this matter, the legislature has sanctioned the
prevailing authority of the territorial law, by providing, in a general way
in article 7, that "immovables are governed by the laws of the place where
they are located.” See Fiore, Dirillo internazionale privato, v. III, Book V,
Chapters II, V, VI, and the article published in Giurisprudenza italiana, v.
LIII, on article 8 of the general provisions of the Italian Code, Turin, 1901.
INVIOLABILITY OF PRIVATE PROPERTY
1165. Every state is bound to recognize that the property of
private persons, whether citizens or foreigners, is inviolate. No
PROPERTY BELONGING TO PRIVATE INDIVIDUALS
453
state may deprive a foreigner of his property or compel him to part
with it against his will, nor subject him to vexatious measures as a
condition of the enjoyment of his rights over his property.
The foreigner may be compelled to yield a part or the whole
of his property for the public use but he may require the payment
of a just and fair price, to be determined in accordance with the
territorial law, under the same conditions as govern citizens.
1166. It is the duty of every state to determine the property
which may be possessed or owned, establish the legal means of
acquiring and disposing of property, and assure the exercise and
enjoyment of all the rights of the owner, placing the foreigner in
the same position as the citizen with respect to the local law and
regulations.
1167. The right to dispose of property at death either by will or
in accordance with the laws of intestacy, and the right to require
that the intrinsic validity of the testamentary provisions and the
order and measure of rights by succession under intestacy may be
regulated by the law governing the status and capacity of the
deceased and his personal and family relationships, if not inconsist-
ent with the above mentioned rules, must be regarded as included
within the rights of ownership over property.
1168. Possession of property acquired according to the con-
ditions fixed by territorial law and having the character required
by that law, should produce all the legal consequences ascribed to
it, whether the possessor be a citizen or a foreigner.
1169. It is incumbent upon every civilized state to protect the
possessor, even if a foreigner, and to grant him the faculty of
availing himself of all the legal means authorized by the lex loci,
to remove obstacles to his possession and enjoyment of the prop-
erty and to recover such possession if deprived thereof.
1170. Legal acts or conditions accomplished or arising in con-
formity with the territorial law, from which rights of property may
be derived, produce the same legal effects, whether brought by an
alien or with respect to property owned by him. (For example,
accession, confusion, specification, compensation for betterment
of the thing, etc.)
Compare Fiore, Diritto internazionale privato, 4th ed., v. II, Book III, Dei
diritti che hanno per oggetto le cose.
1171. Rights acquired by third parties over real or personal
454
INTERNATIONAL LAW CODIFIED
property by virtue of the lex rei site must be governed by that law,
even with regard to the property of foreigners, and although their
personal rights over their property within the territory are gov-
erned by the foreign law.
The basis of this rule is presented in the principles formulated in rules 1162
and 1163.
1172. The state must recognize and protect the rights of owner-
ship of foreigners whatever the nature of the property in question
1
may be.
Rules established must consequently be considered as applicable
to private property, whatever its form, whether real or personal
corporeal property, capable of possession or appropriation, or
incorporeal rights, the products of the intellect or industrial in-
vention, such as trade-marks and commercial and trade names,
bonds, stocks, temporary or perpetual rents supported by the state
and any other form of property having a pecuniary value.
LITERARY PROPERTY
1173. The right of an author to works of the intellect, books,
discoveries, inventions, intellectual productions of all kinds, must
be protected in the same manner as property in corporeal or incor-
poreal things.
1174. It is the duty of the state to determine by law which
works of the intellect may be worthy of protection, the conditions
under which legal protection may be granted and how it may be
assured and limited. Every state must assimilate aliens to na-
tionals in the enjoyment and exercise of the rights of authors to
the products of their intellects and the institution of actions at
law against those who violate their rights.
1175. It is the duty of states to establish through international
convention uniform laws for the legal protection of intellectual
property and provide the necessary sanction for the apprehension
and punishment of infringements of copyright, maintaining the
right of each of them by its own legislation to enforce the perfor-
mance of the treaty.
The principles which may serve as the basis of an international convention
on this subject may be determined differently according to the greater or less
protection which it is desired to afford to authors in proportion to the work
PROPERTY BELONGING TO PRIVATE INDIVIDUALS
455
they have done and the reward to which they are entitled for the services
rendered to society. Thus, it may be admitted that the author may be al-
lowed to reserve the right of authorizing translations of his work; that the
duration of his rights be extended or restricted; that the causes for forfeiture
be determined in a liberal or restrictive manner, etc. All these matters may
constitute the object of special laws which may be fixed by treaty and do not
come within the general rules we have endeavored to set forth.
A body of special rules on the subject has already been formulated in the
treaty for the protection of literary and artistic property concluded at Berne,
between Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia,
Spain, Switzerland and Tunis, September 9, 1886. See further: Fiore, Diritto
internazionale privato, 4th ed., v. II, Chap. IX, Turin, 1902, and the French
translation of Charles Antoine, Paris, Pedone-Lauriel.
WORKS WORTHY OF PROTECTION
1176. Every state must consider as worthy of legal protection
all scientific, literary and artistic works, i. e., books, dramatic and
musical compositions, designs, paintings, sculptures, scientific
models, drawings and any other work which may be considered a
product of the mind, taste, wit and intelligence of its author.
RULES CONCERNING THE EFFECTS OF COPYRIGHT
1177. Copyright acquired by the author of an intellectual work
in the country of original publication may secure legal protection
in other countries only upon complying with the formalities of the
territorial law.
1178. In every state the territorial law is applied to determine
whether the right to protection has been acquired or lost, and to
determine questions of piracy and infringement of copyright.
1179. Copyright originally acquired in a certain state cannot
be deemed valid in a foreign country by the territorial law of which
state such right is not recognized.
COMMERCIAL AND TRADE NAMES
1180. The commercial name, that is, the name which identifies
each person or commercial firm must be regarded everywhere as a
part of the property of the person or association entitled to be so
designated and should be protected everywhere as is the physical
person or entity itself.
456
INTERNATIONAL LAW CODIFIED
1181. Usurping the name of another person must be considered
as a violation of his rights and when done in bad faith and tor-
tiously it must be punished as a criminal offense, whether the per-
son injured be a citizen or an alien.
1182. It is a violation of international law for a state to permit,
by reason of the absence of an international treaty, the usurpation
of the commercial name of a foreigner or foreign association to go
unpunished, when such usurpation assumes a tortious character.
1183. Every state must sanction by law the rules determining
when the usurpation of a commercial name assumes the character
of an offense and gives rise to judicial action. These provisions of
the law must be considered as applying to all interested parties,
without distinction between citizens and aliens, and without sub-
ordinating their application to the principle of reciprocity.
See for the further development of this rule and of the principles mentioned
our work on private international law and the judicial decisions there cited.
1184. The name of a person or commercial association cannot
lose its character as such when it is part of a trade-mark or is con-
nected with commercial emblems or other signs. It cannot be
considered as subject to the rules concerning trade-marks, however,
unless the owner has assigned to it the character of a trade-mark by
registering it as such.
TRADE-MARKS
1185. Any sign may be considered as a trade-mark which serves
to distinguish products of a manufacturer or a certain line of
business and of which the manufacturer or merchant has acquired
the exclusive use in the country of origin by formally recording it
under the provisions of law.
1186. The right of every merchant and manufacturer to in-
dividualize the products of his trade or industry by certain dis-
tinctive signs or marks and to prevent the unfair use by others of
the same sign to deceive consumers must be regarded as one of the
rights which should be protected under international law. inde-
pendently of treaties and reciprocity.
1187. Every state may fix by law the conditions under which a
person may claim the exclusive use of a trade-mark or under which
the right may be preserved or lost, but a discrimination between
PROPERTY BELONGING TO PRIVATE INDIVIDUALS
457.
citizens and aliens or a toleration of fraud or unfair competition
must be regarded as contrary to international law.
1188. Whenever the ownership of a trade-mark or the legal
title to its use is contested the prima facie owner, merchant or
manufacturer must prove his exclusive right to use the trade-mark
in the country where the suit is brought and that the right has not
been lost by virtue of its laws and regulations.
1189. The ownership of a trade-mark, lawfully acquired in the
country of origin should be regarded as acquired in all other coun-
tries where the trade-mark shall have been duly registered. The
alien who has thus acquired the right to the exclusive use of a
trade-mark must be permitted to assert his rights and obtain pro-
tection for the trade-mark thus registered. He may invoke the
application of the criminal laws to prevent usurpation, or counter-
feiting or unlawful use thereof.
1190. The penalties against the usurpation of a registered
trade-mark should be applied without distinction against citizen
and alien and a criminal action must be instituted on request of the
public prosecutor or interested parties, in accordance with the
municipal laws of each state.
NECESSITY OF A CONVENTIONAL
COMMON" LAW
1191. States which have by common agreement established
rules for the acquisition of ownership in trade-marks and for their
legal protection must bring their territorial legislation into har-
mony with the principles of conventional law.
PATENTS FOR INVENTIONS
1192. A state may grant to an inventor and his assigns the
exclusive privilege of working his invention by conferring this
exceptional right upon him by means of a patent. It may also
determine by law the conditions under which such privilege may
subsist, as well as its duration, extent and protection.
1193. The patent is also to be considered as a privileged con-
cession granted by the state to an inventor. It can never give to
the inventor the right to demand respect for his invention in other
countries, as in the case of property rights.
Il
458
INTERNATIONAL LAW CODIFIED
INTERNATIONAL PROTECTION OF PATENTS
1194. The international protection of patents for inventions
can be secured only by means of an agreement between the states
and can be effective only in those states which by treaty ad hoc
have established the rules, conditions and formalities necessary
to secure in their respective territories the legal protection of
patents granted by each of them.
1195. In the absence of such an agreement every state may
apply within its own territory its own municipal law in determin-
ing whether or not a patent shall be granted, and when and how
infringements and the sale of the patented articles may be pre-
vented and punished.
1196. When the legal protection of patents is assured between
two or more states by means of a treaty the privilege acquired in
one of the contracting states cannot be regarded as valid in the
other states unless the patent has been legally secured in the
country of origin and no cause of forfeiture has arisen, and unless
the protected inventor shall have complied with all of the formali-
ties required by the municipal law of each state to enjoy within
its territory the privilege of the patent and the preservation of his
rights.
1197. An inventor who may in a given state demand protection
for a patent taken out in a foreign country cannot be expropriated
of his right for the public use without just compensation.
MERCHANT SHIPS
1198. A ship can have only one nationality and it cannot
quire another unless it establishes by means of a document fur-
nished by the competent maritime authorities of the country of
origin that it has completely renounced or lost the right to fly its
flag.
1199. Every ship must be presumed to have retained its na-
tionality of origin so long as it does not establish the legitimate ac-
quisition of another nationality, or has not been deprived of its
national character, either by the provisions of its national law or
by the operation of the rules of customary international law.
According to the legislation of certain states a ship may lose its national
character. This is the case under the Italian law if an Italian merchant vessel,
PROPERTY BELONGING TO PRIVATE INDIVIDUALS
459
for any reason, becomes the property of a foreigner. This may also be the case,
according to the principles of international law, when a merchant vessel cap-
tured in time of war, after its adjudication to the captor in a prize court, loses
its nationality of origin.
1200. Each state has the right to fix the conditions which mer-
chant vessels must fulfill in order to obtain national registry and
the right of flying the national flag, and to determine when the
original nationality is lost.
PROOF OF THE NATIONALITY OF A VESSEL
1201. Every vessel is bound to prove its nationality and may
demand that the certificate, in proper form and duly authenticated
and endorsed, obtained from the state to which it claims to belong,
shall be considered as conclusive evidence and decisive of the
question. Such certificate must be regarded as prima facie suffi-
cient to establish and prove its nationality in the absence of proof
of fraud or arbitrary use.
1202. The certificate of nationality must mention the name of
the vessel, its dimensions, its tonnage and the means of identify-
ing it, the name or names of its owner or owners, specifying the
share of each, the maritime district in which it is registered, its
changes of ownership, all liens and mortgages or maritime pledges
existing against it, and everything that it is necessary prima facie
to know in order to establish its legal status with respect to those
having rights or claims against the vessel.
The legislation of the various states is not uniform in this matter. According
to the English act of 1854 (Merchant Shipping Act) mortgages need not be de-
scribed in the certificate of nationality, but only registered in the district where
the ship is registered. The certificate of nationality, however, states that it
does not constitute a title or document to establish mortgages. The purpose
of our rule is to establish that the papers on board should suffice to make known
the legal status of the vessel with respect to its owners and their assigns and
to give notice to third parties.
1203. It should be deemed a matter of common interest for all
states to agree upon establishing a uniform law in the matter
of preserving and changing the national character of merchant
vessels and to subject the grant and use of the certificate of na-
tionality to such conditions as may be required to safeguard the
carrying of passengers and the security of navigation.
The conditions required for the granting of the certificate of nationality
must on principle be considered as within the domain of the municipal law of
460
INTERNATIONAL LAW CODIFIED
each state. Nevertheless, the conditions surrounding the construction of
ships with respect to the guaranty of capacity required of ship builders as well
as those concerning inspection as evidence of seaworthiness must always be
regarded as of international concern.
RIGHTS OF A MERCHANT VESSEL
1204. Any merchant vessel which has lawfully acquired the
right to fly the flag of a nation and obtained, in conformity with
its laws, a certificate of nationality has the right everywhere of
invoking the application of its national laws in all questions relat-
ing to its legal status as an object of property.
1205. The law of the national state of a vessel must likewise
be applied to determine the total or partial transfer of ownership,
the nature and order of precedence of rights acquired by creditors
in conformity with the law of the maritime district in which it is
registered, and the obligations and responsibility of its owners, pro-
vided, however, that the latter be not inconsistent with the princi-
ples of public law or public policy in force in the state where its
application is invoked, or with the rules of international law.
MORTGAGES AND REAL RIGHTS IN A VESSEL
1206. The national law of a vessel must determine whether it
may constitute the object of a mortgage or lien. By that law, also,
the formalities required for the valid acquisition of those rights
must be regulated, to determine their extent, their effect and con-
ditions of validity and their duration and extinction.
1207. A mortgage on a foreign vessel, properly registered accord-
ing to its national law, must be recognized in other countries, even
in those whose laws have not recognized maritimes mortgages, and
the mortgage creditors may, in conformity with the foreign law,
claim their right to resort to foreclosure proceedings wherever the
vessel may be found. No obstacle can be found in the diversity
of the local law relating to foreclosure.
1208. The rights acquired by creditors upon a vessel in a cer-
tain place must be governed by the law of that place. This law
must always recognize real rights acquired in the vessel by
third parties in conformity with its national law before its enter-
ing territorial waters, provided that this recognition of vested
PROPERTY BELONGING TO PRIVATE INDIVIDUALS
461
rights, attacbing according to the national law of the vessel, as
against those acquired by creditors under the local law, shall not
involve any violation of local public law or public policy.
These rules seek to establish that the ownership of a vessel and its transfer,
entire or partial, effected through a mortgage or lien which the owner has given
as security for a debt, must be everywhere governed by the law of the state to
which the vessel belongs, regarding as the permanent situs of the vessel the
maritime district in which it has been registered and inscribed after its con-
struction.
For further details see our Diritto internazionale privato, 3d ed., v. II, chap.
VII, § 4, and the French translation of that work by Charles Antoine, Paris,
Pedone-Lauriel.
BOOK FOUR
THE ENUNCIATION OF INTERNATIONAL LAW AND
ITS ENFORCEMENT
FUNDAMENTAL PRINCIPLES
1209. All states constituting a de facto society should provide
for the legal organization of that society, especially with a view
to preserving a state of peace and preventing the disturbances
which inevitably result from war. To this end it is essential:
(a) To create (1) a supreme organ invested with the power of
proclaiming the rules of “common” law and assuring their obliga-
tory force; (2) an organ charged with the interpretation, develop-
ment and application of the rules proclaimed in order to safeguard
their observance; (3) a tribunal charged with adjudicating legal
controversies arising between the states constituted as a society
when by diplomacy and other means agreed upon no friendly
arrangement shall have been reached;
(6) To provide for the punishment of violations of the "common”
law, to re-establish the authority of that law and to re-affirm and
strengthen respect for it by coercive measures admissible in time
4
of peace;
(C) To proclaim the legal rules according to which, in extreme
cases, the use of force may be legitimate, to punish arbitrary vio-
lations of the "common” law and to regulate the exercise of ex-
ceptional rights in time of war, with reference both to belligerent
and neutral powers.
1210. The institutions designed to meet the requirements in
paragraph (a) are the Congress, the Conference and Tribunals of
Arbitration. The principal means for settling disputes and pre-
venting litigation are resort to diplomatic negotiations, good
offices, mediation and international commissions of inquiry.
The coercive measures admissible in time of peace to attain the
purposes indicated in paragraph (b) are retorsion, reprisals, col-
lective intervention and pacific blockade.
The laws and customs referred to in paragraph (c) constitute
the law of war.
A large number of states established in different parts of the world have
gradually constituted themselves into a de facto society and have in principle
464
INTERNATIONAL LAW: ENUNCIATION AND ENFORCEMENT 465
recognized the authority of international law in regulating their relations
among themselves. They have not, however, agreed to ascribe to the rules of
international law the authority of “common” law and still less to insure its
observance by legal methods. Therefore, up to the present time the organiza-
tion of the international society of states has not had a legal basis. The ten-
dency at present is to solve the problem by gradually eliminating the unorgan-
ized state of nature, the preponderance of force, the absence of a “common” ”
law, and to give to international society a legal organization. It is proper to
state that governments have already made a beginning in the right direction,
for the two Hague Conferences of 1899 and 1907 constitute the most important
event of our time.
Under these conditions of fact we have studied the solution of the problem
on a broader plane, taking into account what has already been done and sug-
gested as a solution of the problem, although we recognize that the measures we
propose could not at present be brought to realization. In order to be produc-
tive, science must always consider not only the present, but the future as well.
The present is history and the future must be a rational development of the
historical fact. Otherwise progress cannot be conceded as possible of reali-
zation even in a more or less distant future, but would be merely fanciful
thought, idealistic and utopian. Our proposals, though admitting that they
may not all be practicable at the present time, have for their basis the histori-
cal fact which has been our constant guide, and appear to us to be a rational
development of that fact. Time, moreover, has justified many of our views.
Many propositions set forth in our Nuovo diritto internazionale, published in
1865, which appeared then purely idealistic, have become actual facts (see
supra, Introduction.)
In order to provide international society with a true legal organizaton and to
develop the sentiment of justice, it will be necessary gradually to eliminate the
preponderance of politics and to admit that law must be the sovereign of the
world. In order to attain that exalted end the existence of an international
organ or agency is indispensable to elaborate and to proclaim the “common
law of civilized states constituted as a society and to insure its obligatory force.
There is need also of another agency or organ to maintain the legal organiza-
tion established and the observance of the law proclaimed. Finally, a third
agency is required to apply the law and to settle according to justice the con-
troversies that may arise between states.
The institutions that we propose, the Congress, the Conference and Tribu-
nals of Arbitration, are designed to bring about the objects indicated. It will
be well to take into account the rules already adopted, and those likely to be
adopted, in order to determine the attributes and functions of each of these
institutions so as to effect the best legal organization of international society.
This necessity of creating such a legal organization by means of organs de-
signed to proclaim the “common” law and to assure its enforcement had al-
ready been recognized by eminent publicists, by whom different solutions have
been proposed. Lorimer recommended the permanent establishment of three
organs such as those existing in every state, namely, an international parlia-
ment, an Executive power and a judiciary. Bluntschli advocated also an
international society organized as a state. Others were in favor of a confedera-
tion of states, with a central power endowed with the legislative function and
coercive power of enforcement and having at its disposal the federal military
force. Yet these publicists, by proposing to ascribe a preponderant vote to
the great powers tended thereby to emphasize the predominance of politics
466
INTERNATIONAL LAW CODIFIED
prevailing among those powers. (For critical observations see: Fiore, Diritto
internazionale pubblico, 1865, chap. VI, of Part second, pp. 347 et seq.; Trattato
di diritto internazionale, v. I, Introduzione, Chap. VI, pp. 94 et seq.; v. II,
$$ 1498 et seq., p. 489, 2d edition.)
We shall not mention the other systems proposed which, in general, con-
stitute no improvement because they imply an absolute necessity of radically
transforming international society, or sanctioning the superiority of the great
powers, thus supporting necessarily the supremacy of politics over right.
It must be added, that the best conceived legal organization will never pre-
vent the arbitrary and violent infringement of “common” law established
among the states. Hence the necessity for coercive measures to enforce the
observance of that law. Some of these measures may be resorted to without
disturbing peace, but where they remain ineffectual war may become unavoid-
able. The idea of perpetual peace, cherished by philanthropists as the ulti-
mate result of legal organization of international society does not seem to us
to be possible of fulfillment.
TITLE I
THE CONGRESS
1211. The Congress must be deemed the principal organ of the
international society constituted by all of the states entertaining
de facto relations, which seek to organize a society by establishing
in common accord and proclaiming the rules governing their re-
ciprocal relations, by making provision to assure their observance,
and by determining upon the method of procedure calculated to
bring about the legal settlement of any international controversy
which may arise between them.
In view of the fundamental idea that the states constituting a de facto so-
ciety must be deemed equal and independent, whatever their actual physical
power with respect to territory, population and financial and military strength,
it follows that none of them may aspire to hegemony and still less assume to
dictate its laws to others. As it is, nevertheless, indispensable to proclaim the
'common” law of the international society, it must be admitted that those
which constitute it should proclaim the law, provided they can agree upon it.
As the legal rules of the international society must have for their basis the
reciprocal consent of its members, it follows that they cannot be dependent
upon the arbitrary interests of politics. They must be the rational expression
of the principles of justice as best adapted to the present conditions of that
society, so as to protect the rights of its members and to safeguard their com-
mon interests. Nevertheless, the common consent of states is indispensable
in order to secure recognition for the laws and to proclaim them, as well as to
clothe them with binding force by punishing their violation. To attain this
end an organ is required, endowed with sovereign power, which, in our opinion,
should be the Congress. The Congress should, on principle, be constituted
as mentioned hereafter, so as to safeguard the legal equality of the states
forming the international society, as well as the personal rights of the legal
entities which compose it.
In our opinion there exist, in substance, two great republics. The one
has neither territorial limits, nor seas, rivers or mountain boundaries, and
comprises the human population united among themselves by the bonds of
civilization and their collective interests, constituting a de facto society or
Magna civitas. The other republic is formed by those who, united by their
social, civil and economic interests, constitute a state.
Neither of these republics can exist without a law which fixes the fundamen-
tal rules of the normal development of their activity and their reciprocal rela-
tions and actions. The observance of these rules must be admitted as indis-
pensable to their harmonious co-existence. Each of these republics, therefore,
is under the necessity of having a superior organ invested with the power of
467
468
INTERNATIONAL LAW CODIFIED
proclaiming the organic law of the society. This superior organ in the greater
republic of the Magna Civitas must be the Congress.
In effect, the reciprocal independence and legal equality of the states in the
de facto society cannot be safeguarded otherwise than by requiring these
states, assembled in a Congress, to recognize the rules most conformable
to the principles of justice and the exigency of actual fact, and therefore best
designed to regulate their common relations, and to proclaim those rules as
obligatory upon its members. On the other hand, with respect to the other
republic, namely, that constituted by each individual state, the people thus
politically organized in each country constitute the superior power and invest
it with the function of proclaiming the law and safeguarding the organization
of the state. It is thus reasonable, so far as concerns the state, that the organ
designated to proclaim the law should be the organ which the political consti-
tution entrusts with such power.
FUNCTIONS OF THE CONGRESS
1212. It is the duty of the Congress:
(a) To draw up the legal rules which must govern the relations
between the states constituted as a society, and to declare the
rights which must be ascribed to the persons and legal entities
constituting part of the Magna civitas;
(6) To amplify, modify and abrogate rules previously enun-
ciated;
(c) To provide for the maintenance of legal order in the inter-
national society by insuring the observance of respect for the
"common” law, and proclaiming the rules which must govern the
use of coercive measures permitted in time of peace;
(d) To devise means best adapted to insure peace and to
eliminate the causes of difference which might disturb it;
(e) To lay down rules relating to compulsory arbitration and to
regulate the constitution of a permanent court of arbitration, in-
vested with arbitral jurisdiction in cases where the parties must be
considered as obligated to submit to arbitration;
(f) To inaugurate measures best adapted to prevent an impend-
ing war between states, members of the society, to bring them
into operation and arrest the disastrous consequences of war after
hostilities have begun;
(9) To regulate war by proclaiming the rules which ought to
govern war and be applied in the conclusion of peace, so as to
prevent the victor from taking undue advantage of his power to
impose upon the vanquished unjust conditions, in violation of the
rules of orderly co-existence in international society;
THE CONGRESS
469
(h) To protect the natural rights of persons and legal entities
belonging to the Magna civitas, with respect to nations and peoples
not members of the society;
(i) To exercise supreme authority over the Conference by modi-
fying or reversing its decisions, and over any state declining to
comply with the decisions of the Conference or with the award
pronounced by a tribunal of arbitration, by ordering the employ-
ment of coercive measures to assure the recognition and execution
of such award;
(1) To lay down rules which shall govern and may justify collec-
tive intervention in the cases contemplated in rules 556 et seq. in
order to repress, within a state, disorders involving a violation of
common” law;
(k) To fix the reasonable limit of armaments in time of peace, by
determining the maximum contingent of army and navy of the
states of the society, taking into account their special conditions,
the requirements of internal and external security and the extent
of their dominions, both continental and colonial.
The problem of the limitation of armaments is beginning to impress itself
seriously upon the attention of all governments, and it is to be hoped that it
will be finally adjusted, after a thorough examination, by future peace con-
ferences. In the last Congress of 1907 it appeared in the Russian program,
but it was eliminated owing to the opposition of several governments. The
question, undoubtedly, is not yet ripe for settlement, but, as the burden of
military expenditures becomes increasingly heavy, with a growing disposition
among civilized peoples not to bear such a burden, the necessity of limiting
armaments must be faced. The time will come when public opinion will
succeed in imposing itself upon governments, which, in order to support their
international policy and endeavor to maintain themselves in the first rank of
states are prompted to burden the country with increasingly heavy charges.
We are convinced that the heavier the military expenditures become the sooner
will public opinion impose on governments a new course in their international
policy, which will make possible the limitation of armaments.
Be this as it may, in the last Peace Conference of 1907 the following motion
was unanimously adopted:
“The Second Peace Conference confirms the resolution adopted by the
Conference of 1899 in regard to the limitation of military expenditure; and
inasmuch as military expenditure has considerably increased in almost every
country since that time, the Conference declares that it is eminently desir-
able that the Governments should resume the serious examination of this
question."
1213. The decisions of the Congress must have the same obliga-
tory authority and value as any positive agreement with respect
to the states represented and actually members of the interna-
470
INTERNATIONAL LAW CODIFIED
tional society and with respect to other states which may be con-
stituted members of the society by adhering to it.
CONSTITUTION OF THE CONGRESS
1214. The Congress should be constituted:
(a) By representatives of the states constituting the society of
states;
(6) By delegates elected by the people of the states;
(c) By delegates elected by the universities.
1215. The representatives of the states shall be two and are
to be designated by the sovereign of each state, large and small
states being equally represented.
The delegates of the people, two in number, shall be elected by
single suffrage by those who, according to the municipal law of
each country, have the right of voting for delegates to the Congress.
The scientific delegates to the number of ten in all shall be elected
by a system of limited votes by all the universities of the states
represented.
In order that the Assembly or Congress may have its own distinctive char-
acter, that of representation in the international society, it has seemed to us
essential that it should be so constituted as to make such representation
effective and complete. Accordingly, we believe that all states, small or great,
weak or powerful, should be placed on the same footing of liberty and equality,
otherwise strength would have a preponderating influence in the enunciation
of the law which would govern the Magna civitas. Just as within the state the
rights of man cannot be in proportion to his physical strength, so in the Magna
civitas the rights of states ought not to depend upon their importance.
In view of the fact that the international society does not merely comprise
the states which are subjects of international law, properly speaking, but also
other forms of association which may lay claim to their own international
rights independent of those of the state, and that international law must
govern the rights and interests of all legal entities constituting the Magna
civitas, we have considered it indispensable that the people be represented in
the Congress.
In the desire to give such representation its true character, we have deemed
it advisable that the delegates of the people to the Congress should be elected
by the people and not by parliament. In a parliamentary government the
majority represents the policy of the present government actually in power,
and if parliament should appoint the delegates to the Congress it would serve
merely to give added strength to the prevailing policy.
As to the method of election by the people, we do not believe that the sys-
tem in use for political elections should be adopted. The electoral vote for
representation in parliament may be more or less extended, but for representa-
tion in the Congress it is indispensable for an intelligent and enlightened vote
that the electoral right be exclusively reserved to the intelligent classes,
THE CONGRESS
471
We have proposed single suffrage for the electors called to choose the two
delegates in order to secure representation of minorities. Absolute govern-
ment by majority is not government of the people, but that of the majority
over the minority. By single suffrage the two delegates having the greatest
number of votes would be elected, and thus the representation of the popular
majority and minority would be obtained.
Finally, in view of the fact that in elaborating the laws of the Magna civitas,
reason and history must be laid under contribution, also taking into account
present historical contingencies and popular convictions, and that scholars are
qualified by reason of their gifts, to formulate the principles best adapted to
govern the international society, we have deemed it advisable that science
should also be represented in the Congress. We have proposed that the repre-
sentatives of science be limited to ten, believing that, notwithstanding their
unquestioned competency, their influence should not be preponderant, for
scholars will not always take into account the actual conditions which must
govern the drafting of positive law. They often follow the straight scientific
course without taking account of the fact that positive law cannot be best
represented by such course, but that, on the contrary, they must occasionally
follow a modified line, more or less close to the straight course, and that posi-
tive law at any time can only be designed to obtain the best and to avoid the
worst.
We have, furthermore, proposed that the delegates of science be designated
by the scientific bodies represented by the universities, and we have suggested
for their election a system of limited suffrage in order to assure among them
also a representation of minorities. We fully realize that many people will
consider our system as a philosophical conception and a mere Utopia. We do
not hesitate in saying that we do not mean to claim for our proposal any early
realization, but that it can only be achieved in the more or less remote future.
It will be necessary, in the first place, for states to acquire a better idea of their
reciprocal interests; for states to understand the necessity of giving the Magna
civitas a more rational legal organization and finally to be able to impose upon
their governments the task of thoroughly solving the problem. It will be the
work of time, and, indeed, of a very long time. The organization of the people
associated as states did not take place in a day. Evolution has experienced
several cycles; the successive preponderance of the sacerdotal caste, and of
privileged castes, autocracy, first of the monarchies of divine right and then
of dynastic policy, and finally, parliamentary government.
The organization of international society can only come about through evo-
lution. The initial movement must describe its parabola in successive cycles.
The two Hague Conferences represent one of the cycles truly characteristic
of evolution. It is, indeed, a fact most worthy of consideration, that in 1899
and 1907 a great many states in various parts of the world met at The Hague
in order to proclaim by common agreement the rules of their relations and to
formulate their common law of nations in regard to many questions. The
states represented in these two great assemblies had the true character of a
Congress, in our sense of the term, 26 in 1899, and 44 in 1907, namely,
Argentina, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chile, China,
Colombia, Cuba, Denmark, Dominican Republic, Ecuador, France, Germany,
Great Britain, Greece, Guatemala, Haiti, Italy, Japan, Luxemburg, Mexico,
Montenegro, Netherlands, Nicaragua, Norway, Panama, Paraguay, Persia,
Peru, Portugal, Roumania, Russia, Salvador, Servia, Siam, Spain, Sweden,
Switzerland, Turkey, United States, Uruguay and Venezuela,
472
INTERNATIONAL LAW CODIFIED
One thing leads to another. The fact already achieved is that the legislative
assembly of international society has been constituted and before adjournment
of the second conference unanimously expressed the wish that a third confer-
ence or congress be held within a period of time equivalent to that between
the first and second conferences, and that a committee be created to prepare
the program and to collect the different propositions and to assemble the
matters susceptible of international regulation. Under these conditions it
may already be affirmed that the Congress or Legislative Assembly, as an
institution suggested by us in our first edition of 1890, translated into French
by Chrétien in 1893, is an accomplished fact, and that at present all that re-
mains to be done is to perfect its organization, to set forth its objects with
greater precision, and to better regulate its constitution.
1216. Besides sovereign and autonomous states, that is to say,
those having the complete enjoyment and independent exercise
of the rights of sovereignty, both internal and external, there
should likewise be admitted to the Congress semi-sovereign states,
namely, those in a relation of vassalage toward or dependence
upon a suzerain state.
As on principle there is no doubt that semi-sovereign states, as well as sov-
ereign states, belong to the Magna civitas, it follows that they should likewise
be admitted to the deliberations of the Congress and to cast a vote in the pro-
mulgation of the legal rules which must protect the rights of all the legal en-
tities constituting the international society.
Bulgaria, notwithstanding the fact that it was under the dependency of
Turkey, was allowed to take part in the Hague Conference.
It would be best that representation in the Congress be as great as possible.
1217. The Pope, as sovereign head of the Catholic Church,
may be admitted to the Congress, provided that he recognizes
that he participates therein, not in the same capacity as any other
political sovereign but as the spiritual sovereign of the Catholic
Church.
In view of the rules posited to determine the legal status of the Roman
Catholic Church, and the character of its international personality, it follows
that, while the Church may not be assimilated to a state, it belongs, neverthe-
less, to the international society and may claim international rights. It has
undoubtedly the right to be represented in the Congress in order to request
the protection of its international rights as a subject of Magna civitas. To be
sure, so long as the Church persists in its claims to temporal power, and shall
desire to be assimilated to a state, it will be impossible, with such unjustified
pretensions, to admit it to the deliberations of the Congress of states. To do
so would be indirectly equivalent to assimilation and to confuse the two in-
terests of state and church which, as previously shown, are and must remain,
by reason of their character and purpose, completely separate. (Compare
rules 74 to 76, and 729.)
1218. The members of the Congress, on their first meeting,
shall appoint their President and other officers,
THE CONGRESS
473
1219. The Congress shall initiate its labors by verifying the
legality of the certificates of election or appointment of its mem-
bers.
After this preliminary work, provision ought to be made for the
discussion of questions which are to constitute the object of its
deliberations, in accordance with a program in which the topics to
be discussed will have been determined in their order of discussion.
The representatives of states and the delegates to the Congress
shall retain their character as such until such time as the Congress
to which they are delegated shall have ended its labors.
CONVOCATION AND DURATION OF THE CONGRESS
1120. The Congress may be convoked on the initiative of one
of the member states of the society, which shall present in a diplo-
matic note the reasons why the meeting of a general Assembly is
considered opportune, designating, as well, the country in which
it shall meet. This note shall be addressed to all of the member
states of the society and shall be sufficient to convoke the meeting
of the Congress when it is supported by a third of the states which
shall have taken part in the previous Congress.
1221. The Congress, constituted as a result of the convocation,
shall remain in session until the completion of the labors for which
it was convoked.
The Congress, in our view, is not a permanent body, nor do we claim any
permanence of power for its members.
Undoubtedly the international society cannot remain at a standstill. Hence
the laws adopted in common accord to govern it cannot remain immutable.
As these laws must be adapted to historical and moral requirements and to the
needs of such society, it is natural that when, owing to changes and the devel-
opment of their respective interests, the laws in force become inadequate, it
is necessary to modify them and to convoke for that purpose a new Congress.
Hence, it must be deemed preferable to deny the permanence of the powers
of the members of the Congress who are to enunciate new laws, because they
will be better able to respond to the needs of progress and inevitable evolution.
1222. The conclusions of the Congress, adopted by majority,
ought to have the same authority as any international agreement
and the rules proclaimed by it ought to have the character of posi-
tive rules with respect to all the states of the international society,
including those subsequently joining it, and none ought to disre-
gard the binding force of such rules so long as they have not been
amended by a new Congress.
474
INTERNATIONAL LAW CODIFIED
1
In view of the fact that the rules and laws of the Magna civitas must be
those which its representatives, that is to say, the Congress, have proclaimed
as best adapted to govern the relations of all the legal entities constituting it,
it is reasonable to assume that, once decided upon, a rule of international law
must be binding upon all the member states, and that none of them should
disregard the authority thereof by making reservations. At present, it is ad-
mitted that any one of the states assembled in a Congress may avoid the bind-
ing force of the rules adopted by the Congress by making reservations upon the
principles adopted by the majority. This can be done because at present the
principles which must govern the Congress and the authority of their con-
clusions are not yet definitely established. A state may or may not, as it
chooses, come into a Conference and prefer a condition of complete isolation,
but it does not seem admissible in our opinion that a state may be a member
of the international society and yet disregard the authority of the laws which
must govern it. This would in effect be admitting that the representative of
an electoral district, by his reservation upon the binding force of a law enacted
by the legislature, could save his district from the authority of a law adopted
by the majority.
Bonfils is of the opinion that the minority cannot be compelled to submit
to the vote of the majority, because thereby the independence of every state
would be compromised and diminished. (Droit international public, $ 806.)
This cannot be denied under present conditions. But if our system could be
adopted, if, in other words, the states were to recognize the Congress as the
supreme agency through which rules governing their relations could be es-
tablished, it would not be necessary to agree with Bonfils. Certainly, every
state would be free to join or not to join the union or society of states. But it
would be inadmissible that, although a member, such state could freely avoid
the authority of a law adopted by the legislative power of the union, namely,
the Congress, and that the other states of the union or society could not resort
to any methods proper in time of peace to compel such recalcitrant state to
recognize the binding force of the law adopted. If it were otherwise, the legal
rules of the international society, framed by the states constituted as a union
would be binding only upon those willing to recognize them. How, under such
conditions, could the international society be given a true legal organization?
1223. The functions of each Congress must be regarded as con-
cluded with the signature of the treaty in which are incorporated
the rules adopted by its members, or with the signature of the final
and general protocol, in which all the protocols previously sub-
scribed are approved and confirmed.
.
PROCEDURE
1224. Every member whose credentials as a member of the
Congress are approved shall be entitled to take part in and vote
in all the deliberations of the Congress.
1225. Each member of the Congress shall be entitled to one
yote.
THE CONGRESS
475
The vote shall always be cast by name, according to the alpha-
betical order of the states represented. Any proposition shall be
considered approved when voted for by a majority of the members
present.
1226. Whoever shall have taken part in the discussion shall be
bound to cast his vote and subscribe the resolution. In case the
delegates of a state who have taken part in the discussion shall
absent themselves from the meeting in which the vote is to be signed
or shall refuse to sign it, they would be guilty of censurable con-
duct in neglect of the general duties incumbent upon all the states
of the union represented in the Congress, and mention of the mat-
ter should be made in the proceedings of the Congress. The dele-
gates of a state signing a resolution adopted by the majority,
against which they have voted, shall be allowed to insert in the
record of the proceedings their dissenting vote, indicating the rea-
sons therefor.
1227. The proceedings of the Congress must be drawn up in
writing and the discussions and resolutions of each meeting must
be confirmed in a protocol to be signed by all the representatives,
whether members of the majority or minority.
All the proceedings of the Congress should be officially pub-
lished.
1228. When the Congress is called upon to examine and pass
upon the resolutions adopted by a Conference it may not only
require the exhibition of all the papers and documents submitted
to the Conference, but may also require the production of other
documents and papers which may be deemed necessary for its
information.
SANCTION OF THE RESOLUTIONS OF THE CONGRESS
1229. The Congress shall insure the proper recognition of its
resolutions by providing appropriate penalties to that end.
1230. When the Congress proclaims a new rule binding upon all
the member states of the union or society, the power to declare
any state which refuses to abide by the rule as excluded from the
“union" must be deemed a sufficient sanction to assure respect for
the rules adopted. Moreover, a state desiring to continue its de
facto relations as a member of the union cannot be permitted to
476
INTERNATIONAL LAW CODIFIED
disregard the imperative authority of any of the legal rules pro-
claimed by the Congress.
1231. When the Congress, in the general aim to assure peace
and prevent war, has proclaimed a legal rule and adopted a resolu-
tion with a view to settle a difficulty pending between two or more
states, these states may be compelled to comply with the resolution
or decision by all lawful means proper in time of peace.
In view of the fact that the preservation of peace is of chief interest and that
war gives rise to a very serious moral and economic disturbance, not only with
regard to the belligerents, but also with regard to all the states constituting the
Magna civitas, the Congress, as the supreme agency for the protection of the
general interests, must possess the power to order the use of all peaceful means
to obtain the observance of its resolutions and conclusions and prevent war.
1232. When the Congress shall have directed one or more of the
states of the "union” or society to resort to lawful and peaceful
means to compel the refractory state to observe a resolution or rule
concerning it, the state or states intrusted with such a mandate will
be invested as of right with all the powers granted by international
law for the execution of the mandate. This ought to be the case
when the Congress shall direct a state to exercise its good offices
or mediation or shall appoint an international commission of in-
quiry.
1233. Should the Congress recognize that, under the principles
of “common” law, it would be proper to impose arbitration upon
the parties to a dispute, it could order arbitration and determine
the rules for the constitution of the arbitral tribunal, assuming
that a permanent court of arbitration shall not have been estab-
lished (as it should be) for the exercise of arbitral jurisdiction in
cases for which the Congress should determine arbitration to be
obligatory.
As we shall see hereafter, arbitration can only become an institution capable
of peacefully settling difficulties and preventing war on condition that it be
obligatory. We believe, therefore, that the Congress ought to have the right
to determine arbitration to be obligatory whenever it considers it advisable.
1234. When, after the exhaustion of all other means to compel
a refractory state to execute its rules or decisions, the Congress
shall deem a resort to coercive measures indispensable, it shall have
the right to order a pacific blockade and to entrust to certain states
of the union or society the task of applying such measures. The
states thus designated shall be invested as of right with all the
THE CONGRESS
477
powers necessary to make the blockade effective, taking into ac-
count the special rules which the Congress may have established
with respect to the use of such measures of forcible execution. The
other states would be bound to abide by the determination of the
Congress and to adopt the measures required to make the blockade
effective.
The precedents established with reference to the pacific blockade against
China and Greece support our proposition, which aims at legitimating this
method of forcible execution. We believe that in order to bring about a realiza-
tion of a more just and rational system of safeguarding the law, the duty of
ordering a pacific blockade and declaring it binding upon all the states must
be undertaken by the states assembled in Congress, so as to prevent combina-
tions between the more powerful states which might exercise a preponderant
influence in international politics.
1235. In case of a serious and violent attack upon the legal rules
of the international society, the Congress, after the unsuccessful
employment of other means of establishing the authority of the
law, may authorize recourse to armed force against the states
which have successfully resisted peaceful measures of coercion.
This would be an example of intervention legitimated by the prin-
ciples which justify collective intervention and the use of armed
force to punish the violation of international law.
When this extreme measure is ordered by the Congress the
state or states of the union authorized to resort to armed force to
punish violations of the common law of nations and to restore its
authority must be rightfully regarded as allies for the purpose.
All the other states of the “union" must necessarily be regarded as
neutral.
}
TITLE II
THE CONFERENCE
DEFINITION
1236. The Conference is an agency of high administration, a
sort of executive power possessing the faculty to maintain and
protect the legal organization established by the Congress and to
apply the rules proclaimed to settle questions of general interest
which, by their nature, cannot constitute the object of an award.
According to our system the Conference would be an agency of the interna-
tional society with a purpose quite distinct from that of the Congress. The
Congress ought to be empowered to proclaim the rules which shall constitute
the basis of the legal organization of the international society. The Confer-
ence ought to maintain the legal organization established by the Congress,
to assure the recognition of the rules proclaimed and to apply them in appro-
priate cases.
At the present time there is no substantial difference between a Conference
and a Congress. This is due to the fact that the true principles of the legal
organization of international society and the agencies best adapted to bring
it about are not yet fully understood. When, in the future, a more rational
organization of international society will be constituted, the necessity must be
recognized of establishing, on the one hand, an agency to draw up, elaborate
and proclaim the rules of the society, namely, the Congress, and, on the other
hand, a distinct agency entrusted with their execution, namely, the Conference.
At the present time the term “Congress” or “Conference” is indifferently
ascribed to an assembly of states united for the purpose of regulating their
relations by an agreement. Thus, the term Conference was applied to the
assembly of states which met at Berlin in 1884-5 to protect the liberty of
navigation, industry and commerce in the regions of Africa, and which pro-
claimed, by the General Act of February 26, 1885, the rules governing the
occupation of African territories for protectorates, and for the improvement
of the moral and material condition of the natives. The term Conference was
also applied to the assembly that met at Brussels in 1889 to develop and apply
the principles enunciated at Berlin by establishing in common accord rules
designed for the suppression of slavery, which were proclaimed in the anti-
slavery Act of July 2, 1890.
In our opinion, the term Conference is properly applied to the meeting at
Brussels, which did not declare new principles but merely applied and devel-
oped those which had been proclaimed at the Congress of Paris in 1856 and the
Conference of Berlin in 1885, which, like that of Paris, should have been called
a Congress. In like manner, the meeting of the states held at The Hague in
478
THE CONFERENCE
479
1899 and in 1907 called “Peace Conferences " should rather have been called
"Congresses,” their object having been to enunciate superior principles, to
strengthen peace and prevent war as well as rules which should govern certain
relations arising out of war. These two assemblages constitute the most im-
portant precedent of our time, and furnish an admirable example for future
Congresses, as we understand them.
CONSTITUTION OF THE CONFERENCE
1237. The Conference should be constituted:
(a) By two representatives of the great powers appointed to
the Congress. When the representative designated cannot fulfill
his duties by reason of death, illness, or other cause, the
sovereign of the state shall appoint a representative to the Con-
ference;
(6) By five delegates appointed by the Congress from among
the delegates of the people in the Congress;
(C) By the representatives of the state or states which have a
direct and material interest in the questions to be discussed by the
Conference.
1238. The designation of the members of the Conference shall
be made by the Congress before the termination of its labors and
the members so designated shall be invested with all their powers
until the meeting of a new Congress.
1239. The admission of the representatives of the state or states
which have a direct and material interest in the question to be
discussed by the Conference shall be decided upon by the Con-
ference itself at its first meeting.
To justify our proposition it may be observed that, as the Conference must
constitute a sort of executive body delegated by the Congress to assure a recog-
nition of the laws enacted by it and to exercise functions of high administra-
tion, it is reasonable to hold that the number of its members should be limited.
We believe that it should be composed only of representatives of the great
powers, because it cannot be denied that the latter are more competent and
more interested than other states in preventing disturbances which may arise
from the non-observance of the laws enacted by the Congress. Always firm in
the desire to avoid in all international questions the preponderance of political
influence, we have considered it advisable that there be popular representation
in the Conference in order to protect the interests of the international com-
munity and the peoples which constitute it.
So far as concerns the representation of the interested state or states it has
appeared to us in conformity with general principles of justice and equity that
they should be at least permitted to assert their contentions, even though they
may not be granted a deliberative vote.
480
INTERNATIONAL LAW CODIFIED
DUTIES OF THE CONFERENCE
1240. The Conference shall be deemed competent:
(a) To apply any legal rules enunciated by the Congress and
to settle any question of complex interest which, by reason of its
nature, cannot be the object of an award;
(6) To interpret the rules designed to preserve the legal organi-
zation of international society as proclaimed by the Congress,
without, however, interfering with the substantial authority of
these rules.
Nevertheless, in the absence of a special provision in the rules
adopted by the Congress, the Conference could, under the partic-
ular circumstances of a case, deduce the applicable rule from that
enacted by the Congress, either by a literal interpretation or by
analogy, provided, however, that a different sense from that
clearly expressed be not arrived at nor a new rule of "common' ”
law derived from the general principles of international law;
(c) To order a reference to arbitration, even in the absence of
an agreement to that effect between the parties, either in cases
where, according to the rules established by the Congress, a sub-
mission to a court of arbitration shall be deemed compulsory, or
in the case contemplated in rule 825; to settle the difficulties which
may arise from the execution of an arbitral award; to examine the
grounds of nullity invoked against such an award by the defeated
party; and to pass judgment upon the request for revision of the
award;
(d) To examine the circumstances which might justify collective
intervention in accordance with rules 556 et seq.; to regulate such
intervention, according to its purpose, when authorized by the
Congress, and to control its operation;
(e) To safeguard the rights of aliens injured by the action of a
government which shall have abused its authority by arbitrarily
violating their rights or by refusing to carry out its engagements
or admit the just pecuniary claims of the interested parties,
thereby creating an abnormal condition of affairs.
This would be the case if a government arbitrarily and un-
justifiably refused to pay its contractual debts;
(f) To authorize the employment of diplomatic measures
legitimate in time of peace to assure the execution of an arbitral
THE CONFERENCE
481
award rendered against a state which refuses to recognize or
execute it;
(9) To pass upon the revocation or suspension of a treaty con-
cluded between two or more states in the cases designated in rules
787, 788, 826 and 829;
(h) To suspend the execution of a treaty of peace and to refer
the matter to the Congress whenever it may consider the stipula-
tions of such treaty as violating the principles which, according to
the rules enunciated by the Congress, govern the conclusion of
.
peace.
PROCEDURE
1241. The meeting of the Conference may take place at the
request of one of the states of the union which, in a note communi-
cated through diplomatic channels, shall state the reasons for the
desired convocation of the members. Such request must be recog-
nized as well founded by three of the governments of the states
which are to join in the Conference.
When the meeting of the Conference requested by one of the
states of the union shall be approved by three of the governments
of the states invited, these states shall determine by agreement the
program for the Conference.
1242. When the meeting of the Conference shall be called be-
cause of a difficulty between two or more states which, not having
been adjusted by peaceful means, threatens to cause war, the
parties in dispute shall all be considered defendants.
1243. When the parties in dispute are all in the position of
defendants before the Conference it is the duty of each party to
place at the disposal of the Conference all the documents in sup-
port of its claim and those which may be required by the Con-
ference. In the case of good offices or mediation on the part of
third powers, they must furnish the relevant papers and all docu-
ments necessary to acquaint the Conference with the nature and
object of the dispute and the grounds invoked by each of the con-
tending parties in order that an intelligent decision may be reached.
1244. The parties called before the Conference shall be permitted
to present their own arguments and to take part in the proceedings
of the Conference by appointed representatives; but they shall not
be entitled to a vote.
.
482
INTERNATIONAL LAW CODIFIED
They may present to the Conference all the memorials and docu-
ments calculated to strengthen their case, so long as the assembly
shall not have declared the period for the submission of documents
closed.
1245. Any decision of the Conference, whether provisional or
final, shall be reached by a majority of votes, each state represented
and each delegate to the Conference possessing one vote.
1246. Every decision shall be drawn up in writing and contain
an exact enunciation of the rules of law on which it is based, the
grounds for the application of such rules, and a clear and precise
judgment.
1247. The resolutions of the Conference shall be signed by all
participating members who have not been excluded from it for
justifiable reasons.
Each member of the minority shall have the right to state the
reasons for his dissenting vote and to require mention thereof in the
proceedings, but he shall not have the right to refuse to sign the
award or resolution adopted by the majority.
1248. The decision of the Conference shall be deemed final and
it shall be communicated by diplomatic channels to all the member
states of the union and notified to the interested partiés upon
whom it shall thereupon become obligatory
SANCTION OF THE DECISIONS OF THE CONFERENCE
1249. The Conference may assure respect for its decisions by
proposing to the Congress, by a resolution based upon stated
reasons, the use of coercive measures against such members as may
refuse to execute the decision.
1250. The behavior of any state which might decline to abide
by the decisions of the Conference and to execute the orders im-
posed upon it would be deemed censurable and contrary to the
common law of nations, which must govern the states constituting
the “union" or society; and it might be necessary to convoke a Con-
gress to prescribe the employment of appropriate coercive measures.
We do not deceive ourselves by assuming that the rules we propose for the
rational organization of international society can at present be accepted and
enforced. It will require, first of all, a complete transformation of present
conditions and a gradual restriction and final and complete elimination of the
preponderance of political influence in international relations. It will be neces-
1
483
THE CONFERENCE
sary for public opinion-which is the manifestation of the legal conscience of
the peoples comprising the Magna civitas, formerly suppressed, but whose in-
fluence upon the operation of international society is constantly increasing-
to become preponderant. It will be necessary for peoples, more conscious of
their respective interests and legitimate rights, to assert their solidarity. It
will be necessary, so to speak, for the legal entities constituting the Magna
civitas to realize clearly that law and justice, and not private interest and poli-
tics, must be the final sovereign of the world.
Whoever considers conditions from a lofty point of view must agree that
the life of nations is being transformed by the influence of new ideas; these are
limiting, little by little, the preponderant influence of politics, which will be
ultimately eliminated, since ideas, not facts, govern the world.
Undoubtedly, on the other hand, politics, failing to base their proponderance
upon the irresistible and mysterious power of ideas are now under the necessity
of appealing to force. They will not be able to do this indefinitely. The result
of the increasing progress of science is that ultimately states will be unable to
maintain their armaments on a par with such progress. The wonderful discov-
eries in ballistics and of more powerful weapons of attack, which make quite
useless the present means of defense; the discouraging progress of artillery
which reduces to naught any study to perfect resistance by improving the con-
struction of ships; new and more powerful explosives; submarines, dirigible
balloons, aëroplanes and other powerful means of destruction-all this, to any
thoughtful person, signifies that politics, in course of time, will have to recog-
nize its inability to stand the strain.
At the present writing, August 26, 1908, the two great powers which by
their policy seek to acquire preponderance upon the sea, recognizing the diffi-
culty of maintaining their efforts, have attempted to reach an agreement.
Having failed in that attempt, they are induced by their rivalry to excessive
and ever increasing expenditures. Thus, Great Britain plans to build thirty
ships of the Dreadnought type, entailing an expenditure of $250,000,000 and
may be obliged to have recourse to a loan (Le Matin, August 23, 1908). In
Germany, an increase of taxes of 500,000,000 marks has been announced to
meet new naval expenditures.
TITLE III
EFFECTIVE MEANS OF SETTLING DIFFERENCES BE
TWEEN STATES AND PREVENTING LITIGATION
OF DIPLOMATIC ACTION
1251. Whenever there arises between two or more states a
difference likely to disturb their friendly relations, it must be
deemed a common duty of humanity and an act of good policy
for all the governments of the states of the international society,
and for each of them in particular, to make use of all the means
available under the “common” law to settle the difference by
diplomatic action and thus, if possible, avoid litigation or recourse
to arms.
The true mission of politics and diplomacy should be to bring about the-
disappearance of all ground of disagreement between the states of the in-
ternational society and to employ any honorable means calculated to settle
differences between them and to insure the maintenance of their friendly
relations.
See Fiore, word Alleanza in Digesto italiano, chap. IV. La vera missione
della diplomazia.
This principle is at present recognized in article I of Convention I of the
General Act of The Hague of 1907, which provides as follows:
Article I.—“ With a view to obviating as far as possible recourse to force in
the relations between states, the contracting Powers agree to use their best
efforts to ensure the pacific settlement of international differences.
The proclamation of principles made by the forty-four states assembled at
The Hague, forming the preamble of the convention for the pacific settlement
of international disputes, which also comprises arbitral procedure, deserves
most careful attention. It reads thus:
“Animated by the sincere desire to work for the maintenance of general
peace;
Resolved to promote by all the efforts in their power the friendly settlement
of international disputes;
Recognizing the solidarity uniting the members of the society of civilized
nations;
Desirous of extending the empire of law and of strengthening the apprecia-
tion of international justice;
Convinced that the permanent institution of a Tribunal of Arbitration ac-
cessible to all, in the midst of independent powers, will contribute effectively
to this result;
484
SETTLING DIFFERENCES BETWEEN STATES
485
Having regard to the advantages attending the general and regular organiza-
tion of the procedure of arbitration;
Sharing the opinion of the august initiator of the International Peace Con-
ference that it is expedient to record in an International Agreement the princi-
ple of equity and right on which are based the security of States and the wel-
fare of peoples;
Being desirous, with this object, of insuring the better working in practice
of Commissions of Inquiry and Tribunals of Arbitration, and of facilitating
recourse to arbitration in cases which allow of a summary procedure;
Have deemed it necessary to revise in certain particulars and to complete
the work of the First Peace Conference for the pacific settlement of interna-
tional disputes."
MEANS DEEMED EFFICACIOUS
1252. The means considered efficacious and admitted by all the
states which signed the General Act of the Hague Conference of
1907 are:
(a) Good offices;
(6) Mediation;
(c) International Commissions of Inquiry.
Concerning these and other matters, there exists a body
of rules which constitute the “common” law of the states repre-
sented in the Second Hague Conference of 1907 and signatory of
the General Act of October 18, 1907, which contains the different
conventions they concluded. Although binding on all the signa-
tory (i. e., ratifying) states, these rules are not fully reproduced
in this work, because they are not all reconcilable with our system,
for instance, certain rules concerning arbitration. The reader will
find, however, printed in italics, a verbatim copy of such of the
rules as are not opposed to our principles. There are fourteen
conventions and each is divided into articles. The number of the
convention will be cited in connection with a textual reproduction
of the articles,-using our own numeration.
GOOD OFFICES
1253. Good offices consist in the attempt of a friendly power
to facilitate negotiations between two or more states in contro-
versy.
The good offices of a friendly power may be required by
either one of the states in controversy, when they have failed
through diplomatic negotiations to reach an agreement and there
486
INTERNATIONAL LAW CODIFIED
is danger of their disagreement becoming so serious as to disturb
their friendly relations.
1254. Any government of the states of the international soci-
ety may, without being requested, tender its good offices to
the states in controversy, for the purpose of exercising its moral
influence toward reconciling them and endeavoring to bring about
an amicable agreement or an honorable compromise.
This rule, proposed in the preceding editions of the present work (3d ed.,
$ 1118) is thus formulated in article 3 of Convention I of the General Act of
the Hague Conference of October 18, 1907:
The Contracting Powers deem it expedient and desirable that one or more
powers, strangers to the dispute, should, on their own initiative and as far as
circumstances may allow, offer their good offices or mediation to the states at
variance.
Powers strangers to the dispute have the right to offer good offices or media-
tion even during the course of hostilities.
The exercise of this right can never be regarded by either of the parties in
dispute as an unfriendly act."
1255. Refusal on the part of a government to accept good
offices proposed by the government of the opposing state, or prof-
fered by a friendly power on its own initiative will in itself raise
a grave presumption that that government does not desire to
reach an amicable arrangement. Such refusal virtually consti-
tutes a breach of political etiquette.
1256. Good offices voluntarily tendered by a power not inter-
ested in the difference should not be declined without good reasons.
If accepted by the states in controversy, they must communicate
and furnish to such power all the documents and notes relative
to the matter in dispute and whatever may be necessary to eluci-
date the case. They must also advance their arguments in support
of their respective claims.
1257. The tender of good offices cannot be considered by any of
the states between which a difference has arisen as improper or
as an unfriendly act or undue interference.
1258. The government that has proffered its good offices must
act in regard to the two states in controversy with absolute im-
partiality and moderation and use its moral influence to facilitate
conciliation and to effect an honorable compromise of the disputed
points; but it may not expect that either state shall accept its
proposals to the prejudice of its dignity or honor.
The rules set forth are the same as those in preceding editions.
SETTLING DIFFERENCES BETWEEN STATES
487
OF MEDIATION
1259. Mediation is the act of a friendly state which interposes
between two states between which a difference has arisen, with
a view to composing it and reëstablishing good relations between
them.
The states between which a difference has arisen may pro-
pose to invest one or more friendly states, strangers to the ques-
tion, with power to interpose as amiables compositeurs or mediators
in the settlement of the controversy.
The privilege to proffer mediation inheres in every state stranger
to the difference.
1260. The mediation proposed can never be regarded by either of
the states in dispute as an unfriendly act.
General Act of the Hague Conference. Convention for the pacific settle-
ment of international disputes of October 18, 1907, art. 3, last paragraph.
1261. The part of the mediator consists in reconciling the opposing
claims and appeasing the feelings of resentment which may have arisen
between the states in controversy.
Article 4 of that Convention.
1262. It is the duty of the mediating state, whenever mediation
has been requested or proffered and accepted by the states in
controversy, to ascertain the precise points and matters in dis-
pute, the negotiations entered into and still pending, and all the
evidentiary documents, etc., likely to throw light upon the case.
1263. It is incumbent upon the states in controversy, which
have requested or accepted mediation, candidly to communicate
all information to the mediator, so that he may properly fulfill his
mission.
After having accepted mediation, it must be deemed unfair on
the part of either state to endeavor to mislead the mediator by
unjustified reticence.
1264. It must be deemed the mediator's principal duty to con-
sider in good faith and impartially the arguments of each state;
to refrain from using his moral influence in favor of either; to act,
not as a judge or arbitrator, but as a conciliator, an impartial
friend, a skillful and prudent composer of differences, seeking to
bring about a reasonable arrangement between the contending
188
INTERNATIONAL LAW CODIFIED
states without in any way depriving them of their full liberty to
accept or reject the settlement proposed.
1265. The functions of the mediator are at an end when once it is
declared, either by one of the parties to the dispute or by the mediator
himself, that the means of reconciliation proposed by him are not
accepted.
Article 5 of the Convention cited.
1266. Good offices and mediation undertaken either at the request
of the parties in dispute or on the initiative of Powers strangers to the
dispute have exclusively the character of advice, and never have binding
force.
1
Article 6 of the Convention cited.
1267. The Powers which have concluded the Hague Convention of
1907 are agreed in recommending the application, when circumstances
allow, of special mediation in the following form:
In case of a serious difference endangering peace, the states at
variance choose respectively a Power to which they entrust the mission
of entering into direct communication with the Power chosen on
the other side, with the object of preventing the rupture of pacific
relations.
For the period of this mandate, the term of which, unless otherwise
stipulated, cannot exceed thirty days, the States in dispute cease from
all direct communication on the subject of the dispute, which is re-
garded as referred exclusively to the mediating Powers, which must
use their best efforts to settle it.
In case of a definite rupture of pacific relations, these Powers are
charged with the joint task of taking advantage of any opportunity
to restore peace.
Article 8 of the Convention cited.
OF THE INTERNATIONAL COMMISSION OF INQUIRY
1268. In disputes of an international nature involving neither
honor nor vital interests, and arising from a difference of opinion on
points of fact, the contracting Powers deem it expedient and desirable
that the parties who have not been able to come to an agreement by
means of diplomacy, should, as far as circumstances allow, institute
SETTLING DIFFERENCES BETWEEN STATES
489
an international commission of inquiry, to facilitate a solution of these
disputes by elucidating the facts by means of an impartial and con-
scientious investigation. (Art. 9.)
The provisions governing the international Commission of Inquiry con-
stitute the “common” law of the forty-four states assembled at The Hague,
which have signed and ratified the Convention of October 18, 1907, for the
pacific settlement of international disputes. They are consequently just as
binding upon these states as any rule of positive law. For that reason the
full text of the convention is given herein.
N. B. The consecutive numbering of the rules has been preserved, indicating
throughout the articles of the convention to which the rules correspond.
1269. International commissions of inquiry are constituted by
special agreement between the parties in dispute.
The inquiry convention defines the facts to be examined; it deter-
mines the mode and time in which the commission is to be formed and
the extent of the powers of the commissioners.
It also determines, if there is need, where the commission is to sit,
and whether it may remove to another place, the language the com-
mission shall use and the languages the use of which shall be authorized
before it, as well as the date on which each party must deposit its
statement of facts, and, generally speaking, all the conditions upon
which the parties have agreed.
If the parties consider it necessary to appoint assessors, the con-
vention of inquiry shall determine the mode of their selection and the
extent of their powers. (Art. 10.)
1270. If the inquiry convention has not determined where the
commission is to sit, it will sit at The Hague.
The place of meeting, once fixed, cannot be altered by the commission
except with the assent of the parties.
If the inquiry commission has not determined what languages
are to be employed, the question shall be decided by the commission.
(Art. 11.)
1271. Unless an undertaking is made to the contrary, commissions
of inquiry shall be formed by choosing the members from among the
list of members appointed as members of the permanent Court of Ar-
bitration.
The commission selects its President from among its members.
(Art. 12.)
1272. Should one of the commissioners or one of the assessors, if
any, either die or resign, or be unable for any reason whatever to dis-
/
490
INTERNATIONAL LAW CODIFIED
charge his functions, the same procedure is followed for filling the
vacancy as was followed for appointing him. (Art. 13.)
1273. The parties are entitled to appoint special agents to attend
the convention of inquiry, whose duty it is to represent them and to
act as intermediaries between them and the commission.
They are further authorized to engage counsel or advocates, ap-
pointed by themselves, to state their case and uphold their interests
before the commission. (Art. 14.)
1274. The International Bureau of the Permanent Court of Arbi-
tration acts as registry for the commissions which sit at The Hague,
and shall place its offices and staff at the disposal of the contracting
Powers for the use of the commission of inquiry. Art. 15.)
1275. If the commission meets elsewhere than at The Hague, it
appoints a secretary-general, whose office serves as registry.
It is the function of the registry, under the control of the President,
to make the necessary arrangements for the sittings of the commission,
the preparation of the minutes, and, while the inquiry lasts, for the
charge of the archives, which shall subsequently be transferred to the
International Bureau at The Hague. (Art. 16.)
1276. In order to facilitate the constitution and working of com-
missions of inquiry, the following rules, which shall be applicable
to the inquiry procedure in so far as the parties do not adopt other
rules, are recommended. (Art. 17.)
1277. The commission shall settle the details of the procedure not
covered by the special inquiry convention or the present Convention,
and shall arrange all the formalities required for dealing with the
evidence. (Art. 18.)
1278. On the inquiry both sides must be heard.
At the dates fixed, each party communicates to the commission and
to the other party the statements of facts, if any, and in all cases, the
instruments, papers, and documents which it considers useful for
ascertaining the truth, as well as the list of witnesses and experts whose
evidence it wishes to be heard. (Art. 19.)
1279. The commission is entitled, with the assent of the Powers,
to move temporarily to any place where it considers it may be useful
to have recourse to this means of inquiry or to send one or more of its
members. Permission must be obtained from the state on whose terri-
tory it is proposed to hold the inquiry. (Art. 20.)
1280. Every investigation, and every examination of a locality
SETTLING DIFFERENCES BETWEEN STATES
491
must be made in the presence of the agents and counsel of the parties
or after they have been duly summoned. (Art. 21.)
1281. The commission is entitled to ask from either party for such
explanation and information as it considers necessary. (Art. 22.)
1282. The parties must supply the commission of inquiry, as fully
as possible, with all means and facilities necessary to enable it to
thoroughly understand the facts in question. Likewise they must
make use of all means at their disposal under their municipal law to
insure the appearance of the witnesses or experts who are in their
territory and have been summoned before the commission.
If the witnesses or experts are unable to appear before the commis-
sion, the parties will arrange for their evidence to be taken before the
qualified officials of their own country. (Art. 23.)
1283. For all notices to be served by the commission in the territory
of a third contracting Power, the commission shall apply direct to the
government of the said Power. The same rule applies in the case of
procuring evidence from witnesses residing in foreign territory.
Such requests are to be executed by the Power to which they are di-
rected so far as the means at its disposal and its laws will permit.
They cannot be rejected unless the Power applied to considers com-
pliance therewith as prejudicial to its sovereign rights or its safety.
The commission will equally be always entitled to act through the
Power on whose territory it meets. (Art. 24.)
1284. The witnesses and experts may be summoned at the request
of the parties in controversy or by the commission on its own motion,
but in every case through the government of the State in whose territory
it may be assembled.
The witnesses are heard in succession and separately, in the pres-
ence of the agents and counsel, and in the order determined by the
commission. (Art. 25.)
1285. The examination of witnesses is conducted by the president.
The members of the commission may, however, ask any witness
such questions as they consider likely to elucidate and complete the
evidence, or obtain information on any point concerning the witness
that may be pertinent and necessary to disclose the truth.
The agents and counsel of the parties in controversy may not in-
terrupt the witness when he is making his statement, nor put any direct
question to him, but they may ask the president to put such additional
questions to the witness as they may deem expedient. (Art. 26.)
492
INTERNATIONAL LAW CODIFIED
1286. The witness must give his evidence without being allowed to
read any written draft. He may, however, be permitted by the presi-
dent to consult notes or documents if the nature of the facts referred to
necessitates their employment. (Art. 27.)
1287. A minute of the evidence of the witness is drawn up forthwith
and read to the witness. The latter may make such alterations and
additions as he thinks necessary, which will be recorded at the end of his
statement.
When the whole of his statement has been read to the witness, he is
asked to sign it. (Art. 28.)
1288. The agents are authorized, in the course of or at the close of
the inquiry, to present in writing to the commission and to the other
party such statements, requisitions, or summaries of the facts as they
consider useful for ascertaining the truth. (Art. 29.)
1289. The commission considers its decisions in private and the
proceedings are secret.
All questions are decided by a majority of the members of the com-
mission.
If a member declines to vote, the fact must be recorded in the min-
utes. (Art. 30.)
1290. The sittings of the commission are not public, nor the min-
utes and documents pertaining to the inquiry published except by
virtue of a decision of the commission made with the consent of the
parties in controversy. (Art. 31.)
1291. After the parties have presented all the explanations and
evidence, and the witnesses have all been heard, the president declares
the inquiry terminated, and the commission adjourns to deliberate
and to draw up its report. (Art. 32.)
1292. The report is signed by all the members of the commission.
If one of the members refuses to sign, the fact is mentioned, but the
validity of the report is not affected. (Art. 33.)
1293. The report of the commission is read at a public sitting, the
agents and counsel of the parties in controversy being present or duly
summoned.
A copy of the report is given to each party. (Art. 34.)
1294. The report of the commission is limited to a statement of
facts, and has in no way the character of an award. It leaves to the
parties in controversy entire freedom as to the effect to be given to the
statement. (Art. 35.)
SETTLING DIFFERENCES BETWEEN STATES
493
1296. Each party pays its own expenses and an equal share of the
expenses incurred by the commission. (Art. 36.)
1296. The rules relating to international commissions of inquiry,
having been sanctioned by the special convention which is part of the
General Act of the second Hague Conference, have, with respect to all
the states which subscribed the convention, the authority of their "com-
mon" law, and they must all recognize its binding force.
1297. International commissions of inquiry, in addition to the cases
contemplated in the engagements assumed by the States signatory of
the Convention of October 18, 1907, may be instituted by virtue of a
resolution of the Conference, whenever such measure may be deemed
expedient.
They may further be instituted by an award of the Permanent
Court of Arbitration at The Hague, which, having jurisdiction to
decide a dispute upon the points indicated in the compromis, deems it
expedient to ascertain certain facts in order to be able to reach a proper
decision.
1298. Whenever the Commission of Inquiry may be instituted
by a resolution of the Conference or of the Hague Court of Arbitration,
the resolution will define the facts that are to be investigated and will
regulate all the particulars contemplated in Article 1269, supra.
TITLE IV
OF INTERNATIONAL ARBITRATION
EFFICACY OF ARBITRATION
1299. Arbitration must be deemed the most equitable and
effective means of settling questions of a legal nature, especially
those of interpretation and application of international conven-
tions, disagreements which diplomacy cannot adjust.
It is imperatively necessary that the empire of law and institu-
tions of a legal order be fostered and maintained by the states of
the international society.
Propaganda in favor of arbitration, as an equitable and effective means of
settling disputes and of eliminating war, has been the principal object of the
movements of the last century, and the common aspiration of various European
and American associations organized to substitute the use of armed force by
a judicial institution capable of solving such differences as may exist between
states. See supra, Introduction, and the numerous works on the subject, of
which the following merit special mention, viz.:
Merignhac, L'arbitrage international; Deschamps, Essais sur l'organisation
de l'arbitrage international; Pradier-Fodéré, Traité de droit international, v. VI,
$$ 2602–2630; Oppenheim, International law, v. II, SS 12 et seq.; Bonfils-
Fauchille, $$ 944–969; Darby, International arbitration. For the actual prac-
tice and operation of arbitration, see Moore, History and Digest of the arbi-
trations to which the United States has been a party, and Lapradelle and
Politis, Recueil des arbitrages internationaux.
The Institute of International Law discussed this question at length in its
sessions at The Hague in 1875 and at Zurich of September 12, 1877, and has
even drafted a plan for regulating the procedure of arbitration.
The principle of arbitration has received serious and widespread recognition,
the forty-four states assembled at The Hague in 1907 having admitted its
value. It should be noted, however, that these states, while recognizing, in
the preamble of Convention I, that the permanent institution of an arbitral
jurisdiction may prove efficacious in extending the domain of law and fortify-
ing the sentiment of international justice, yet they did not assert that 'submis-
sion to arbitral jurisdiction should be considered compulsory upon the states
of the international society, and furthermore, they materially modified its
usefulness by vague restrictions. Article 38 reads:
“In questions of a legal nature, and especially in the interpretation or appli-
cation of international conventions, arbitration is recognized by the contract-
ing Powers as the most effective, and, at the same time, the most equitable
means of settling disputes which diplomacy has failed to settle.
494
INTERNATIONAL ARBITRATION
495
Consequently, it would be desirable that, in disputes concerning the above
mentioned questions, the contracting Powers should, if the case arose, have
recourse to arbitration in so far as circumstances permit.”
OBLIGATORY CHARACTER OF ARBITRATION
1300. Submission to arbitration furnishes evidence of the good
faith of the states in controversy, and even though it cannot be
regarded altogether as a moral duty, it ought to be declared by the
Congress as a legal duty of the states of the international society
in all cases in which, by the nature of the dispute, arbitration can-
not be regarded as inappropriate.
1301. Submission to arbitration shall be conventional or obliga-
tory.
The former originates in that clause of a treaty by which the
parties have agreed to refer to arbitration any disputes relative to
the interpretation or application of the treaty; or from a special
treaty of arbitration concluded by the parties in dispute by which
they have agreed to submit it to a court of arbitration; or it may
originate in a general treaty of arbitration under which the parties
have mutually agreed to submit to arbitration the settlement of
any dispute of a legal nature that may arise between them.
The latter derives its obligatory character from a rule laid down
by the Congress, or from a decision of the Conference which de-
clares arbitration compulsory under certain circumstances of fact
which determine the application of the general principles adopted
by the Congress concerning the obligation to arbitrate, or refers
the parties to the arbitral jurisdiction in conformity with its attri-
butes in cases (c) and (e) of rule 1240.
Considering that, in principle, arbitration must be regarded as the most
equitable and effective means of settling disputes of a legal nature which may
arise between states, it appears manifestly desirable to declare it compulsory
in all cases where the matter in dispute may be the object of a compromise,
and not to leave it to the voluntary choice of the parties in controversy to
decide whether or not they shall submit to arbitration.
Inasmuch as the prevailing international sentiment is highly favorable to
the suppression of war as much as possible and to the substitution of arbitra-
tion therefor, it must be recognized that this measure will become effective
only when submission to arbitral jurisdiction is made compulsory. (Compare
Introduction.)
When states, in their general treaties of arbitration, include a reservation
such as is formulated in some of the thirty-three treaties of that kind already
concluded, namely, that all disputes of a legal nature shall be submitted to
496
INTERNATIONAL LAW CODIFIED
arbitration, provided, however, that neither the vital interests, nor the inde-
pendence, nor the honor of either of the states in controversy are involved, and
that it must be left for the states themselves to decide whether or not the res-
ervation is applicable, every one understands that submission to arbitration
depends entirely on the good faith of the contracting parties.
1302. When the parties in dispute are unable to decide whether
the difference existing between them can, by reason of its nature
and subject-matter, be submitted to arbitration, the final decision
of its justiciability must be left to the Conference.
1303. When the Conference finds that the matter in dispute
is justiciable by arbitration, its decision should be accepted and
the states in controversy should be required to submit to arbitra-
tion.
When, on the contrary, the Conference finds that the object
of the dispute is complex and partakes both of a legal and political
nature, it may take upon itself the right to decide.
Nevertheless, should the case involve questions of fact, the Con-
ference could refer the settlement of such questions to arbitrators,
in order later to avail itself of their finding in the decision of the
principal and fundamental question held in reserve.
1304. The Congress must determine what matters must be
regarded as obligatory for submission to arbitration on the part
of the states of the international society, without power of any
reservation on their part.
In cases not specified, when one of the parties in dispute desires
to submit to arbitration while the other declines to do so, the will-
ing party may send to the International Office at The Hague a
note containing a declaration of its willingness to submit to arbi-
tration.
The International Office will communicate the declaration to the
other party.
If the proposition to submit to arbitration should not be ac-
cepted, the requesting parties could refer the difficulty to the
Conference, which would decide whether or not the case ought to
be referred to the Tribunal of Arbitration, and on an affirmative
decision to that effect arbitration should be made obligatory.
This rule is based in part on those proposed in our 2d edition (1898, arts.
1069–1070), and in part on the proposition advanced at the Conference of
1907 by the delegates from Peru and China; it was accepted and added to
article 27 of the Convention on arbitral justice signed at the Conference of
1899. This article, thus modified, became article 48 of the Convention on the
INTERNATIONAL ARBITRATION
497
same subject drawn up by the Conference of October 18, 1907. See that
article, paragraphs 3 and 4.
1305. It is the duty of the states that have endorsed the principle
of arbitration to agree upon the rules which must govern the ob-
ligatory character of arbitral justice, in order thus to make possible
the conclusion of a universal Convention of arbitration, and also
to prevent the obligation to arbitrate as well as the essential ele-
ments of the treaty from being violated or rendered nugatory by
the reservations of the states in controversy. Otherwise arbitral
justice will be unable to fulfill its high mission for the common
welfare of all peoples.
The long-discussed question of obligatory arbitration is in a fair way of
being solved in a manner satisfactory to all those who have been seeking as
far as possible to substitute arbitral justice for war in the settlement of in-
ternational disputes. The progress made since the first Conference of 1899 is
noteworthy. At that time the proposition to endorse the principle of obliga-
tory arbitration was opposed and defeated. The states there represented
merely reserved to themselves the right of concluding with one another general
treaties of arbitration with a view to making the measure obligatory in certain
cases. (Art. 19 of the Convention for the pacific settlement of international
disputes, title IV.) No treaties of that kind were concluded until the signature
of the general treaty of arbitration of October 14, 1903, between France and
Great Britain, after which nearly all the great Powers followed this example
and successively concluded general treaties of arbitration. These numbered
sixty in April, 1908. Italy has concluded nine: with France (December 25,
1903); Great Britain (February 1, 1904); Switzerland (November 16, 1904);
Peru (April 18, 1905); Portugal (May 11, 1905); Denmark (December 16,
1905); Mexico (October 16, 1907); Argentine Republic (October 16, 1907);
and the United States (March 28, 1908).
In the recent Conference of 1907, the proposition to conclude a general
treaty by which the states would agree to submit to arbitration any dispute of
a legal nature, was adopted with certain reservations in the sitting of October 5,
1907, by the delegates of thirty-five states. Only five voted against the
proposition and four abstained from voting. The whole scheme of obligatory
arbitration which, besides the general formula, specified the cases in which the
obligation was established without reservation, was voted by 32 states; but
owing to the lack of complete agreement the final solution of the question was
postponed
At any rate, it is especially noteworthy that the obligation of arbitration
being admitted in principle, the question may likewise be considered settled
in principle. It therefore seems reasonable to assume that in one of the future
conferences of states of the international society, a general treaty of obligatory
arbitration will be finally concluded.
The following is the text of the declaration voted in the sitting of October 16,
1907:
The Conference is unanimous:
(1) In admitting the principle of compulsory arbitration;
(2) In declaring that certain disputes, in particular those relating to the
498
INTERNATIONAL LAW CODIFIED
interpretation and application of the provisions of international agreements,
may be submitted to compulsory arbitration without restriction.
Finally, it is unanimous in proclaiming that, although it has not yet been
found feasible to conclude a convention in this sense, nevertheless the diver-
gencies of opinion which have come to light have not exceeded the bounds of
judicial controversy, and that, by working together during the past four
months, the collected Powers not only have learned to understand one another
and to draw closer together, but have succeeded in the course of this long col-
laboration in evolving a very lofty conception of the common welfare of hu-
inanity.”
1306. In view of the fact that in order to establish the reign of
law in the international society, it must be deemed a legal duty for
all the states, members thereof, to submit all disputes of a legal
nature to arbitration, while in the general treaty of obligatory
arbitration there would be specified the cases in which the parties
in controversy should submit to arbitration without reservation,
the enumeration of the treaty should be considered as indicative,
not as limitative.
It will, therefore, always be optional for one of the litigating
parties in a case not contemplated in the treaty of obligatory arbi-
tration, to announce through diplomatic channels its intention to
submit the dispute to an arbitral award, and in such case rule 1304
is to be applied.
1307. It will be considered as an unwarranted refusal to submit
to arbitration:
(a) For one of the states in controversy not to designate the
arbitrator or arbitrators in conformity with the stipulations of the
"compromis."
(6) For a state, in the event of a regular and well-founded chal-
lenge by its opponent, in accordance with rule 1315, to the arbi-
trator named by it, to refuse satisfactorily to overcome the ob-
jection, especially by not naming a new arbitrator in lieu of the
one opposed.
(c) For a state in controversy, when the arbitrators appointed
have been unable to agree upon a third arbitrator or umpire,
not to accept any fair proposition proffered by the opposing party
for the selection of such umpire, if the treaty of arbitration has not
contemplated and provided for such an emergency.
The party which considers itself aggrieved may in that event re-
fer the case to the Conference, calling upon it to determine whether
the parties are bound to submit to arbitration.
INTERNATIONAL ARBTRATION
499
1
1308. In case the Conference should be requested to pass upon
the refusal to submit to arbitration, it must decide in accordance
with the principles of “common” law whether such refusal is or
is not justifiable, and, if necessary, require the refractory state to
do anything it properly should do in order to make the operation
of arbitration possible.
The Conference may, when occasion requires, designate any
arbitrators needed, choosing them from the general panel of arbi-
trators selected for the Permanent Court of Arbitration, and
declare obligatory a submission to the jurisdiction of the arbitra-
tors so chosen.
It may undertake to regulate the procedure in case of challenge
of an appointed arbitrator and entrust to an arbitral tribunal
constituted by it, the duty of passing upon the challenge, reserving
to itself the right of confirming or rejecting their decision.
It may draw up the “compromis” in case of obligatory arbitra-
tion, either by virtue of the principles of “common” law or by
reason of its decision declaring arbitration obligatory, when one of
the parties in dispute would make arbitration inoperative by re-
fusing to concur in the "compromis.
In order to make arbitration really effective whenever it is deemed obliga-
tory between states, it is important to avoid the possibility of this procedure-
recognized in principle as the best means of peaceably settling international
disputes,-being defeated by reason of bad faith on the part of the states
themselves, notwithstanding their agreement to submit to arbitration. Conse-
quently, it is deemed essential that arbitral justice should be so organized as
to render its operation effective and to compel the parties in controversy to
appear before the court when they have assumed the obligation to arbitrate.
Hence we maintain that not only the arbitration but even the "compromis"
must be obligatory, and, likewise, in order to avoid any subterfuge or fraud,
there should be an institution empowered to assure the operation of arbitral
justice when either of the parties in dispute attempts, in any way, to avoid it.
This result will be attained, however, only when the political element in the
enunciation of the principles of “common” law will have been eliminated.
ADMINISTRATION OF ARBITRAL JUSTICE
1309. Arbitral justice is administered by the Permanent Court
of Arbitration constituted under the rules formulated in the Con-
vention signed October 18, 1907, by the representatives to the
second Hague Conference, or by the persons chosen as arbitrators
500
INTERNATIONAL LAW CODIFIED
1
by the parties in controversy in accordance with the rules stipu-
lated in the treaty of arbitration or in the compromis.
1310. Except in cases of special agreements concluded by the
parties in dispute in a treaty of arbitration between them, the ar-
bitrators must decide issues by applying the rules of “common
law proclaimed by the Congress, or those proclaimed for similar
cases or analogous matters; and in the absence of such rules, they
will apply the rules that may be deduced from the general princi-
ples of international law.
When the object of the arbitration is the interpretation and
application of a treaty concluded by the parties in controversy,
the arbitrators must settle the dispute by application of the princi-
ples laid down in the treaty.
1311. Matters relating to the operation of arbitral justice must
be regulated in conformity with the convention concluded at The
Hague, October 18, 1907, by the forty-four states represented
at the Second Conference; for this convention, so far as these
states are concerned, has the authority of conventional positive
law and possesses the same authority over other states which may
adhere to the General Act of The Hague of 1907 as it has over those
which, in case of a difference arising between them, declare that
they wish to apply the rules of that convention, although they did
not subscribe or adhere to it.
The Convention relating to international arbitration is part of the General
Act of October 18 1907; it is the first of the fourteen conventions compos-
ing that Act. It is termed: Convention for the pacific settlement of international
disputes. The subject of international arbitration is regulated therein in
Title IV. The provisions of Chapter I are not reproduced herein because they
are not in harmony with our system; the other provisions which constitute
Chapter II of that title are reproduced textually.
ARBITRAL CONVENTION AND “COMPROMIS"
1312. It is incumbent upon the parties between whom a dispute,
exists, the settlement of which they wish to refer to arbitration,
to formulate their agreement on the matter in a compromis,
whether their submission to arbitration is the result of a general
treaty of arbitration or of a special convention concluded for the
case in controversy.
They must also state the disputed points that are in issue and
lay down the rules of procedure.
INTERNATIONAL ARBITRATION
501
The states which have signed the Convention of October 18,
1907, or those which may later adhere thereto, will be deemed
obliged conventionally to abide by the provision of article 52 con-
cerning the "compromis" and the other provisions governing pro-
cedure.
All other states have the right to agree in the "compromis"
that they shall submit their dispute to the decision of the Perma-
nent Court of Arbitration established at The Hague, or constitute
a special tribunal of arbitration, and that they will adopt the rules
of arbitral procedure laid down by the convention of 1907 or settle
upon others in the "compromis" itself.
Where arbitration would be imposed by a decision of the Con-
ference, the "compromis" ought also to be drawn up by that body.
Article 52 of the aforesaid Convention is textually reproduced hereafter
under rule 1328.
Enforced submission to arbitration by decision of the Conference may occur
in the cases contemplated in rules 1302–1304.
1313. The "compromis" must be drawn up in writing and signed
by the parties.
It must be deemed operative and cannot be impugned except
when it lacks the requisites for the validity of a treaty.
It may become inoperative by non-compliance with the condi-
tions under which the parties had agreed to submit to arbitration.
This would occur if the dispute should involve several points and
the parties succeeded in coming to an agreement on some of them,
without expressly declaring their intention of allowing the "com-
promis" to subsist as to the other points in issue.
CONSTITUTION OF THE TRIBUNAL OF ARBITRATION
1314. The tribunal of arbitration will be deemed constituted as
soon as the arbitrators named under the "compromis" or under the
rules formulated in the Convention of October 18, 1907 (when
the parties shall have declared their willingness to comply there-
with) have accepted their commission.
It will begin the effective discharge of its duties on the day indi-
cated in the "compromis.'
1315. An arbitrator designated may be challenged and ob-
jected to:
502
INTERNATIONAL LAW CODIFIED
1
(a) When it can be proved that he has an interest in the case;
(6) When, a sovereign being appointed, it can be clearly estab-
lished that the state he represents has an identical or similar ques-
tion of law which must be decided in consequence of a pending
difference with another state;
(c) When the sovereign named as arbitrator has proffered his
good offices or mediation in the controversy which forms the object
of the arbitration;
(d) When, owing to changed conditions of fact, his impartiality
may be seriously questioned, the suspension being based on facts
and circumstances of considerable gravity and importance.
1316. When the party to the dispute, to whose arbitrator ob-
jection has been made, does not deem the objection well-founded
and refuses to appoint another arbitrator conformably to the
compromis," the "compromis” is thereby invalidated.
Nevertheless, the parties may, by means of a special agreement,
name other arbitrators with power to decide upon the merits of the
objection.
Such a decision could not be rendered by the tribunal of arbitra-
tion constituted under the original “compromis.”
1
ON THE PERMANENT COURT OF ARBITRATION
1317. With the object of facilitating an immediate recourse to
arbitration for international differences, which it has not been possible
to settle by diplomacy, the Contracting Powers undertake to maintain
the Permanent Court of Arbitration, as established by the First Peace
Conference, accessible at all times, and operating, unless otherwise
stipulated by the parties, in accordance with the rules of procedure
inserted in the present Convention. (Art. 41.)
1318. The Permanent Court is competent for all arbitration cases,
unless the parties agree to institute a special Tribunal. (Art. 42.)
1 Here will be found a verbatim copy of the codification worked out by the
Conference of 1907 which, as regards the forty-four signatory states and the
states which may adhere to the Convention, constitutes, when ratified, the
“common” law of the international society.
These provisions, textually reproduced, form chapter II of Convention I.
The numbers of the rules, which are placed at the head of the articles of this
Convention, correspond to articles 41 et seq. of the official text, arbitration
being regulated in articles 37 to 97.
INTERNATIONAL ARBITRATION
503
SEAT OF THE PERMANENT COURT
1319. The Permanent Court sits at The Hague.
An International Bureau serves as registry for the Court.
It is the channel for communications relative to the meetings of the
Court. It has charge of the archives and conducts all the administra-
tive business.
The Contracting Powers undertake to communicate to the Bureau, as
soon as possible, a certified copy of any conditions of arbitration
arrived at between them and of any award concerning them delivered
by a special Tribunal.
They likewise undertake to communicate to the Bureau the laws,
regulations, and documents eventually showing the execution of the
awards given by the Court. (Art. 43.)
SELECTION OF THE MEMBERS OF THE COURT
1320. Each Contracting Power selects four persons at the most,
of known competency in questions of international law, of the highest
moral reputation, and disposed to accept the duties of Arbitrator.
The persons thus selected are inscribed, as members of the Court,
in a list which shall be notified to all the Contracting Powers by the
Bureau.
Any alteration in the list of Arbitrators is brought to the knowledge
of the Contracting Powers.
Two or more. Powers may agree on the selection in common of one
or more members.
The same person can be selected by different Powers.
The members of the Court are appointed for a term of six years.
These appointments are renewable.
Should a member of the Court die or resign, the same procedure is
followed for filling the vacancy as was followed for appointing him.
In this case, the appointment is made for another period of six years.
(Art. 44.)
SELECTION OF ARBITRATORS
1321. When the Contracting Powers wish to have recourse to the
Permanent Court for the settlement of a difference which has arisen
504
INTERNATIONAL LAW CODIFIED
between them, the Arbitrators called upon to form the Tribunal having
jurisdiction to decide this difference, must be chosen from the general
list of members of the Court.
If direct agreement of the parties on the composition of the Arbitra-
tion Tribunal cannot be obtained, the following course shall be pur-
sued:
Each party appoints two Arbitrators, of whom one only can be its
national representative or chosen from among the persons selected by
it as members of the Permanent Court. These Arbitrators together
choose an Umpire.
If the votes are equally divided, the choice of the Umpire is en-
trusted to a third Power mutually agreed upon by the parties.
If an agreement is not reached on this subject, each party selects
a different Power, and the choice of the Umpire is made in concert
by the Powers thus selected.
If, within two months' time, these two Powers cannot come to an
agreement, each of them presents two candidates taken from the list
of members of the Permanent Court, exclusive of the members selected
by the parties and not being nationals of either of them. Drawing lots
determines which of the candidates thus presented shall be Umpire.
(Art. 45.)
INSTALLATION OF THE ARBITRATION TRIBUNAL AND JURISDICTION
OF THE PERMANENT COURT
1322. The Tribunal being thus composed, the parties notify the
Bureau of their determination to have recourse to the Court, the text
of their compromis, and the names of the Arbitrators.
The Bureau communicates without delay to each Arbitrator the
"compromis," and the names of the other members of the Tribunal.
The Tribunal assembles at the date fixed by the parties. The Bu-
reau makes the necessary arrangements for the meeting.
The members of the Tribunal, in the exercise of their duties and out
of their own country, enjoy diplomatic privileges and immunities.
(Art. 46.)
1323. The Bureau is authorized to place its offices and staff at the
disposal of the Contracting Powers for the use of any special Board of
Arbitration.
The jurisdiction of the Permanent Court may, within the conditions
INTERNATIONAL ARBITRATION
505
laid down in the regulations, be extended to disputes between non-
contracting Powers or between Contracting Powers and non-Contract-
ing Powers, if the parties are agreed on recourse to this Tribunal.
(Art. 47.)
1324. The Contracting Powers consider it their duty, if a serious
dispute threatens to occur between two or more of them, to remind the
contending parties that the Permanent Court is open to them.
Consequently they declare that the fact of reminding the parties in
dispute of the provisions of the present Convention, and the advice
given to them, in the interest of peace, to have recourse to the Perma-
nent Court, can only be regarded as friendly actions.
In case of dispute between two Powers, one of them can always
address to the International Bureau a note containing a declaration
of its willingness to submit the dispute to arbitration.
The Bureau must at once inform the other Power of the declaration.
(Art. 48.)
PERMANENT ADMINISTRATIVE COUNCIL
1325. The Permanent Administrative Council, composed of the
Diplomatic Representatives of the Contracting Powers accredited to
The Hague and of the Netherland Minister for Foreign Affairs, who
will act as President, is charged with the direction and control of the
International Bureau.
The Council settles its rules of procedure and all other necessary
regulations.
It decides all questions of administration which may arise with re-
gard to the operations of the Court.
It has entire control over the appointment, suspension, or dismissal
of the officials and employees of the Bureau.
It fixes the payments and salaries, and controls the general expendi-
ture.
At meetings duly summoned the presence of nine members is suffi-
cient to render valid the discussions of the Council. The decisions are
made by majority vote.
The Council communicates to the Contracting Powers without delay
the regulations adopted by it. It furnishes them with an annual report
on the labors of the Court, the working of the administration, and the
expenditure. The report likewise contains a résumé of what is im-
506
INTERNATIONAL LAW CODIFIED
portant in the documents communicated to the Bureau by the Powers
in virtue of Article XLIII, (I) paragraphs 3 and 4 (Art. 49). Vide
No. 1319 of rules above set forth.
1326. The expenses of the Bureau shall be borne by the Contracting
Powers in the proportion fixed for the International Bureau of the
Universal Postal Union.
The expenses to be charged to the adhering Powers shall be reckoned
from the date on which their adhesion takes effect.
{
ARBITRAL PROCEDURE.
“COMPROMIS"
1327. With a view to encouraging the development of arbitration,
the Contracting Powers have agreed upon the following rules, which are
applicable to arbitration procedure, unless special rules have been
mutually adopted by the parties in dispute. (Art. 51.)
1328. The Powers which have recourse to arbitration sign a com-
promis,” in which the subject of the dispute is clearly defined, the
time allowed for appointing arbitrators, the form, order and time in
which the communication referred to in Article LXIII (rule 1339
hereinafter stated) must be made, and the amount which each party
must contribute in advance toward defraying the expenses.
The "compromis” likewise defines, if there is occasion, the manner
of appointing arbitrators, any special powers which may eventually
belong to the Tribunal, where it shall meet, the language it shall use,
and the languages the employment of which shall be authorized before
it, and, generally speaking, all the conditions upon which the parties
are agreed. (Art. 52.)
COMPETENCE OF THE COURT IN REGARD TO THE
COMPROMIS”
1329. The Permanent Court is competent to settle the "com-
promis” if the parties are agreed to submit it to said Tribunal for
that purpose.
It is likewise competent, even though the request be made by only
one of the parties, when all attempts to reach an understanding through
diplomatic channels have failed, in the case of:-
(1) A dispute covered by a general treaty of arbitration concluded
or renewed after the present Convention has become effective, and
providing for a "compromis” in all disputes and not either explicitly
INTERNATIONAL ARBITRATION
507
or implicitly excluding the settlement of the "compromis” from the
competence of the Court.
Recourse cannot, however, be had to the Court if the other party
declares that, in its opinion, the dispute does not belong to the category
of disputes which can be submitted to compulsory arbitration, unless
the treaty of arbitration confers upon the Arbitration Tribunal the
power of deciding this preliminary question.
(2) A dispute arising from contract debts claimed from one Power
by another Power as due to its nationals, and for the settlement of
which the offer of arbitration has been accepted. This arrangement
is not applicable if acceptance is subject to the condition that the "com-
promis” should be settled in some other way. (Art. 53.)
1330. In the cases contemplated in the preceding Article, the "com-
promis” shall be settled by a Commission consisting of five members
selected in the manner indicated in Article XLV (1321), paragraphs
3 to 6.
The fifth member is President of the Commission ex officio.
(Art. 54.)
CONSTITUTION OF THE ARBITRAL TRIBUNAL
1331. The duties of Arbitrator may be conferred on one Arbitrator
alone or on several arbitrators selected by the parties as they please,
or chosen by them from the members of the Permanent Court of Arbi-
tration established by the Convention of October 18, 1907.
In the event of failure to constitute the Tribunal by direct agreement
between the parties in dispute, the course indicated in Article XLV
(1321) paragraphs 3 to 6, is followed (Art. 55.)
1332. When a Sovereign or the Chief of a State is chosen as Arbi-
trator, the arbitration procedure is settled by him. (Art. 56.)
1333. The Umpire is President of the Tribunal ex officio.
When the Tribunal does not include an Umpire, it appoints its
own President. (Art. 57.)
1334. When the "compromis" is settled by a Commission, as
contemplated in Art. XLV (1321), and in the absence of an agreement
to the contrary, the Commission itself shall form the Arbitration Tri-
bunal. (Art. 58.)
1335. Should one of the Arbitrators either die, retire, or, for any
reason whatsoever, be unable to discharge his functions, the same
4 1
508
INTERNATIONAL LAW CODIFIED
procedure is followed for filling the vacancy as was followed for ap-
pointing him. (Art. 59.)
PLACE OF MEETING OF THE ARBITRATION TRIBUNAL
1336. The Tribunal sits at The Hague, unless some other place is
selected by the parties in dispute.
The Tribunal can only assemble on the territory of a third Power
with the latter's consent.
The place of meeting once fixed cannot be altered by the Tribunal
except by mutual consent of the parties. Art. 60.)
1337. If the question as to what languages are to be used has not
been settled by the "compromis," it shall be decided by the Tribunal.
(Art. 61.)
PROCEDURE
1338. The parties in dispute are entitled to appoint special agents
to attend the Tribunal and to act as intermediaries between themselves
and the Tribunal.
They are further authorized to appoint and retain counsel or
advocates for the defense of their rights and interests before the
Tribunal.
The members of the Permanent Court may not act as agents, counsel
or advocates except on behalf of the Power which appointed them mem-
bers of the Court. (Art. 62.)
1339. As a general rule, arbitration procedure comprises two dis-
tinct phases,pleadings and oral discussion.
The pleadings consist in the communication by the respective agents
to the members of the Tribunal and the opposite party of cases, counter-
cases, and, if necessary, of replies. The parties annex thereto all
papers and documents pertinent to the case. This communication
shall be made either directly or through the intermediary of the In-
ternational Bureau, in the order and within the time fized by the
"compromis."
The time fixed by the "compromis" may be extended by mutual
agreement of the parties, or by the Tribunal when the latter considers
it necessary for the purpose of reaching a just decision.
The discussions consist in the oral development of the arguments
of the parties before the Tribunal. (Art. 63.)
INTERNATIONAL ARBITRATION
509
1340. A certified copy of every document produced by one party
must be communicated to the other party. (Art. 64.)
1341. Unless special circumstances arise, the Tribunal does not
meet until the pleadings are closed. (Art. 65.)
1342. The discussions are under the control of the President.
They are not public unless it be so decided by the Tribunal with
the assent of the parties.
They are recorded in minutes drawn up by the Secretaries ap-
pointed by the President. These minutes are signed by the President
and by one of the Secretaries, without which signatures they have no
authentic character. (Art. 66.)
1343. After the close of the pleadings, the Tribunal is entitled to
refuse discussion of all new papers or documents which one of the
parties may wish to submit to it without the consent of the other party.
(Art. 67.)
1344. The Tribunal is free to consider new papers or documents
to which its attention may be drawn by the agents or counsel of the
parties.
In this case, the Tribunal has the right to require the production of
these papers or documents, but is obliged to make them known to the
opposite party. (Art. 68.)
1345. The Tribunal can also require the production of all papers
and demand all necessary explanations from the agents of the parties
in dispute. In case of refusal the Tribunal makes note of it. (Art.
69.)
1346. The agents and the counsel of the parties in controversy are
authorized to present orally to the Tribunal all the arguments they may
consider expedient in defense of their case. (Art. 70.)
1347. They are entitled to raise objections and points. The deci-
sions of the Tribunal on these points are final and cannot form the
subject of any subsequent discussion. (Art. 71.)
1348. The members of the Tribunal are entitled to interrogate the
agents and counsel of the parties, and to ask them for explanations on
doubtful points.
Neither the questions asked, nor the remarks made by members of
the Tribunal in the course of the discussions can be regarded as an
expression of opinion by the Tribunal in general or by its members in
particular. (Art. 72.)
1349. The Tribunal is authorized to declare its competence in inter-
510
INTERNATIONAL LAW CODIFIED
the case.
preting the “compromis," as well as the other treaties which may be
invoked, and in applying the principles of law. (Art. 73.)
1350. The Tribunal is entitled to issue rules of procedure for the
conduct of the case, to decide the forms, order, and time in which each
party must conclude its arguments, and to arrange all the formalities
required for dealing with the evidence. (Art. 74.)
1351. The parties undertake to supply the Tribunal, as fully as
they consider possible, with all the information required for deciding
(Art. 75).
1352. For all notices which the Tribunal has to serve in the territory
of a third Contracting Power, the Tribunal shall apply direct to the
Government of that Power. The same rule applies in the case of steps
being taken to procure evidence on the spot.
The requests for this purpose are to be executed so far as the means
at the disposal of the Power applied to, under its municipal law, will
permit. They cannot be rejected unless the Power in question con-
siders them calculated to impair its own sovereign rights or its safety.
The Court will be always entitled to act through the Power on whose
territory it assembles. (Art. 76.)
1353. When the agents and counsel of the parties in dispute have
submitted all the explanations and evidence in support of their respec-
tive contentions, the President shall declare the discussion closed.
(Art. 77.)
1354. The Tribunal considers its decisions in private and the pro-
ceedings remain secret.
All questions are decided by a majority of the members of the Tribu-
nal. (Art. 78.)
1355. The award must give the reasons upon which it is based.
It contains the names of the Arbitrators, and is signed by the
President and Registrar or by the Secretary acting as Registrar.
(Art. 79.)
1356. The award is read out in public sitting, the agents or counsel
for the parties being present or duly summoned to attend. (Art. 80.)
1357. The award, duly pronounced and communicated to the agents
of the parties, settles the dispute definitively and without appeal.
1358. Any dispute arising between the parties as to the interpreta-
tion and execution of the award shall, in the absence of an agreement .
to the contrary, be submitted to the Tribunal which pronounced it.
(Art. 82.)
INTERNATIONAL ARBITRATION
511
1359. The parties can reserve in the “compromis” the right to
demand the revision of the award.
In this case and unless there be an agreement to the contrary, the
demand must be addressed to the Tribunal which pronounced the
award. It can only be made on the ground of the discovery of some
new fact calculated to materially affect the award and which was un-
known to the Tribunal and to the party which demanded the revision
at the time the discussion was closed.
Proceedings for revision can only be instituted by a decision of the
Tribunal expressly recording the existence of the new evidence, recog-
nizing in it the character described in the preceding paragraph, and
declaring the demand admissible on this ground.
The "compromis” fixes the period within which the demand for
revision must be made. (Art. 83.)
1360. The award is binding only upon the parties in dispute.
When it concerns the interpretation of a Convention to which Powers
other than those in dispute are parties, they shall inform all the signa-
tory Powers in ample time. Each of these Powers is entitled to inter-
vene in the case. If one or more avail themselves of this right, the inter-
pretation contained in the award is equally binding on them. (Art.
84.)
While this rule is binding upon all the states which took part in The Hague
Conference of 1907, we deem it expedient to state that, just as any conven-
tional obligation is binding upon all the states which have assumed it, so like-
wise should its interpretation by an Arbitration Tribunal be binding upon
them. It is manifestly proper that in a case involving interpretation, all the
interested states should be represented and that accordingly, every Power
signatory to the disputed treaty should be informed in ample time to enable
them to intervene in the arbitration if they so desire. Should some of them
intervene, however, while others fail to do so, we think that the interpretative
award is binding upon all the parties signatory to the treaty. The interpreta-
tion given in the arbitral award establishes the meaning of the treaty and the
nature and extent of the obligation assumed by the parties which subscribed
the treaty. Certainly, when duly interpreted, it must have the same legal
value for all parties concerned.
If, in effect, the Powers not intervening in the case could disregard the arbi-
trator's interpretation and bring about another interpretative award, it would
follow, in case of dissimilarity of the awards, that the same convention might
have a different value with respect either to one or other of the signatory
Powers.
1361. Each party in controversy pays its own expenses as well as
an equal share of the expenses of the Tribunal. (Art. 85.)
512
INTERNATIONAL LAW CODIFIED
ARBITRATION BY SUMMARY PROCEDURE
1362. With a view to facilitating the working of the system of arbi-
tration in disputes admitting of a summary procedure, the Contract-
ing Powers adopt the following rules, which shall be observed in the
absence of other arrangements and subject to the reservation that the
rules concerning arbitration procedure already established shall apply
as far as practicable. (Art. 86.)
1363. Each of the parties in dispute appoints an Arbitrator. The
two Arbitrators thus selected choose an Umpire. If they do not agree
on this point, each of them proposes two candidates taken from the
general list of the members of the Permanent Court exclusive of the
members appointed by either of the parties in controversy and not
being nationals of either of them; from among the candidates thus
proposed the Umpire is determined by lot.
The Umpire presides over the Tribunal which gives its decisions
by a majority of votes. (Art. 87.)
1364. In the absence of any previous agreement, the Tribunal, so
soon as it is formed, settles the time within which the parties in dispute
must submit their respective claims to it. (Art. 88.)
1365. Each party is represented before the Tribunal by an Agent,
who serves as intermediary between the Tribunal and the Government
which appointed him. (Art. 89).
1366. The proceedings are conducted exclusively in writing. Each
party, however, is entitled to ask that witnesses and experts be called.
The Tribunal reserves the right to demand oral explanations from the
Agents of the parties in controversy, as well as from experts and wit-
nesses whose appearance in Court it may deem necessary. (Art. 90.)
We have reproduced verbatim the Convention concerning arbitration and
arbitral procedure, which is part of the General Act signed at The Hague on
October 18, 1907, because it virtually constitutes the conventional law of
the forty-four states represented at the Second Hague Conference. This con-
vention has amplified and modified in some particulars the General Act of the
first Convention signed July 29, 1899, which contained only forty-seven (47)
articles.
Taken as a whole, the conventional rules of arbitral justice of 1907 are very
complete so far as concerns the formal matter of procedure in arbitration; but
with respect to the substantial part, they constitute rather a doctrinal declara-
tion than a set of legal rules. In effect, the provisions of articles 38 and 48
(given verbatim as a note under rule 1299, and under rule 1324) do not es-
tablish any legal duty, so that arbitration is in substance left entirely to the
good faith of the contracting states. Article 40 stipulates as follows concern-
INTERNATIONAL ARBITRATION
513
ing the general or special treaties of arbitration which may be concluded be-
tween states:
"Independently of general or private treaties expressly stipulating recourse
to arbitration as obligatory on the contracting Powers, the said Powers
reserve to themselves the right of concluding new agreements, general or
particular, with a view to extending compulsory arbitration to all cases which
they may deem it possible to submit to it."
Nevertheless, even in the case of a general treaty of compulsory arbitration,
should one of the parties declare that in its opinion the dispute does not come
within the category of disputes which can be submitted to compulsory arbitra-
tion, the obligation assumed by the general treaty of compulsory arbitration
would become useless according to the provision of article 53, No. I (given
verbatim in rule 1329).
While admitting in principle the efficacy of arbitration, the contracting
states have never established in common accord the requirements legally
indispensable for making arbitral justice practically effective; that is to say,
they have not yet concluded a convention which prohibits parties in dispute
from arbitrarily determining for themselves whether the controversy does or
does not belong in the category of disputes which are properly subject to com-
pulsory arbitration. It is, therefore, apparent that much progress will have
to be made in this direction in order that arbitration may become the most
effective and equitable means of settling disputes between states. To accom-
plish this purpose it will first be necessary to overcome the resistance of poli-
tics and in some measure to modify its tendency.
Another observation deemed appropriate at this juncture has reference to
the order of the provisions of the Convention, which are not grouped in a very
methodical manner. For example, in the matter of the jurisdiction of the
Court of Arbitration, it is necessary to refer to rules scattered here and there
and indeed often misplaced (see articles 47, 53, 73, 74 and 83, given herein as
rules 1323, 1329, 1349, 1350, 1359). Would it not be better to provide for the
grouping of all rules bearing upon the same subject? The same observation
may be made concerning the rules of the "compromis," etc., but as it will be
necessary to revise the Convention in question, it is hoped that provision will
be made for better regulation not only of its substance and content but also
of its form and methodical arrangement.
RULES CONCERNING THE ARBITRATION
1367. The arbitral Tribunal, when duly constituted, cannot re-
fuse to render a decision on all the points of the dispute, as deter-
mined and stated in the "compromis." It ought not to extend its
award beyond the matter in dispute.
1368. The Tribunal must pronounce its award within a reason-
able time, and cannot extend the time indefinitely by claiming
that it is insufficiently enlightened on the questions of fact or
principles of law which it is to apply.
When the parties in dispute have mutually determined the time
limit within which the Tribunal must render its decision, the Tri-
"
514
INTERNATIONAL LAW CODIFIED
bunal should have the right to determine whether or not it will be
able to render its award within the time specified, and to establish
such time limit as, in its judgment, the nature of the controversy
may require.
Any such determination as to the time limit provided for the
award must be communicated to the parties in dispute.
1369. The Tribunal, having regard for the declarations of the
parties in controversy, may, by a provisional ruling, order the post-
ponement of the case, in order to give the parties due time in
which to reach an understanding and to compose their dif-
ferences.
1370. It is the duty of each arbitrator to take part in the deliber-
ation of the Court, save in case of physical impossibility.
In case of justifiable absence of one of the arbitrators, the Tribu-
nal must postpone its decision if the cause of absence be temporary.
If, however, the cause is of a permanent character or protracted, it
then becomes necessary to provide a substitute for the arbitrator
who is unable to discharge his duties, applying the same rules
which governed his selection.
1371. When the absence of an arbitrator, at the time the award
is to be pronounced, is manifestly due to a predetermined conclu-
sion or to a subterfuge on his part, a majority of the Tribunal
present should be entitled to prescribe the proper measures for
obviating the difficulty and deciding the case.
1372. When the measures prescribed by the Tribunal prove
ineffective, and serious reasons exist for presuming connivance on
the part of the interested, Government, such treacherous action
ought to be considered as an act of bad faith and contrary to the
principles of law; it should constitute sufficient ground to appeal
to the Conference, as in case of arbitrary refusal to submit to arbi-
tral jurisdiction or to execute the award.
1373. It is the duty of each arbitrator to subscribe the award
adopted by the majority, although dissenting. Should one of
them refuse, the award signed by the majority will be valid and
operative, if the majority has certified such refusal in a declaration
duly subscribed.
1374. The award must be reduced to writing and must indicate
the reasons on which it is based and its effective conclusions on all
the contested points submitted to arbitration.
INTERNATIONAL ARBITRATION
515
EXECUTION OF THE AWARD
1375. The award, when duly pronounced and communicated
in conformity with rules 1354-1357, must be executed in good
faith.
1376. When the award has imposed a financial burden or re-
quires legislative measures for its execution on the part of the los-
ing party, it has, nevertheless, the authority of a final judgment
with respect to the losing state, and its validity and force, so far as
the obligation of its execution is concerned, cannot be made de-
pendent upon the approval or ratification of the legislature.
The award, in so far as it settles a controversy between state and state must
be considered final, and its authority absolute in so far as it pronounced upon
the rights and obligations of the Parties on the basis of the "compromis”
submitting the case to arbitration. The decision rendered by a Tribunal in-
vested with such a power must, therefore, have the authority of res adjudicata
in the relations between state and state, and consequently its findings and con-
clusions cannot be subordinated to any extraneous conditions. The question
of legislative measures which might be necessary to execute the award, is one
of municipal public law. It is the duty of the Government, therefore, to do
whatever may be necessary to carry out the obligations imposed upon the
state by virtue of the award. If, however, it could be admitted that the
legislative power could render ineffective the authority of a final judgment
(res adjudicata) denying to the Government the means of fulfilling the obliga-
tions imposed upon the state by a final judgment, it would also follow that the
final decisions of the courts of the state could be rendered fruitless and
nuga-
tory by refusing the means to execute them. This would imply a strange con-
fusion of the three powers of government which constitute sovereignty.
1
1377. A State which, on being requested by the other party,
should refuse to fulfill in good faith the obligations imposed on it
by the award, would commit an arbitrary act in opposition to con-
ventional law, and would thus assume an international responsibil-
ity warranting recourse to the Conference. The latter could au-
thorize such steps to be taken as might be required for settling
the difference and, if necessary, could employ coercive measures
permissible in time of peace for compelling the refractory state to
respect the final judgment.
1378. The suspension of execution of an arbitral award on the
part of a losing state could only be justified if that state were to
lodge an appeal before the Conference, claiming either (a) that
the award was affected with a vice entailing its nullity, or (b) that
it should be declared incapable of execution either in whole or in
516
INTERNATIONAL LAW CODIFIED
part, because its findings and dispositive conclusions were in
opposition to the constitutional law of the country, or (c) that it
should demand its revision on the grounds stated in rule 1359.
In that case, even if the faculty of applying for revision should not
have been reserved in the "compromis," the appeal could not be
rejected by the Conference, which would be competent under rule
1240, paragraph c.
GROUNDS OF NULLITY OF AN ARBITRAL AWARD
1379. An arbitral award shall be deemed null and void:
(a) If the decision was not made with the co-operation of all the
arbitrators designated to constitute the tribunal of arbitration;
(6) If it wholly lacks reasons both in fact and in law;
(c) If the dispositive part is contradictory;
(d) If it was not drawn up in writing and signed by all the arbi-
trators, or if the omission to sign by one of them is not recorded
in the minutes, establishing the presence of the arbitrator who did
not sign and his presence at the time of the decision and vote.
This rule is strictly in accord with that formulated in our first edition (1890)
and in the two following ones (1898 and 1900).
We hold that the arbitral award must be deemed null and void if it implies a
manifest contradiction in its dispositive clauses, that is to say, if the tribunal
has ordered something quite contrary to another thing also ordered. It is
difficult to understand how Mérignhac, in his notable book on Arbitration,
ascribes to us an opinion that we never held, when he states in § 328, page 311:
“M. Fiore proposes to reject an award whose character is equivocal”; but,
while criticising me, he fails to cite the page of my work containing the opinion
which he gratuitously attributes to me.
1380. The arbitral award may be impugned by either of the
parties in dispute and may be annulled:
(a) If the arbitrators in their award have transcended the limits
of the "compromis," or have made an award under a “compromis"
null and void or which ought to be considered as annulled;
(6) If it was pronounced by a person who did not possess the
legal capacity for sitting as an arbitrator or had become legally
incompetent to act in such capacity while the case was pending,
or by an arbitrator legally unqualified to replace another who was
absent;
(c) When, upon proof duly furnished, the award must be con-
INTERNATIONAL ARBITRATION
517
sidered either as based on error, or as having been extorted by
deceit or violence;
(d) When the dishonesty of one of the arbitrators can be fully
proved;
(e) When the forms of procedure stipulated in the "compromis"
on pain of nullity, or those which are established under conven-
tional "common" law and which the parties have not expressly
declared their desire to exclude, or those which must be regarded
as indispensable under the general principles of international law,
have not been observed.
Of course the rules of arbitral procedure accepted by the states which have
signed the Convention of 1907, must be deemed binding on those states, when
in a “compromis” concluded between themselves they have not stipulated
for the application of other rules.
ACTION IN CLAIM OF NULLITY OR ANNULMENT
1381. The claim of nullity or for annulment on the part of the
state which advances this plea as a ground for refusing to execute
an arbitral award must be made before the Conference. This
also applies to the demand of the party requesting the revision
of the award in the case contemplated in rule 1359.
1382. The Conference called upon to decide as to the nullity of
an award must in fact ascertain whether the reasons invoked are
well founded and pronounce the award null according to law.
In case of a demand in annulment, it must be examined accord-
ing to law to determine whether the reasons invoked are meritori-
ous and the Conference must then decide whether, considering the
circumstances and evidence adduced, the annulment of the award
should or should not be pronounced.
1383. When the Conference denies the appeal in annulment and
confirms the award, it may order recourse to the means calculated
to compel the party to observe and execute the award.
When, on the other hand, it recognizes the claim as well-founded
and admits the nullity or annulment of the award, it shall have the
right to order a new arbitration, providing, if necessary, for the
proper constitution of the tribunal of arbitration,
1
518
INTERNATIONAL LAW CODIFIED
SUSPENSION OF THE EXECUTION OF THE AWARD
1384. The suspension of the execution of the arbitral award may
be authorized by the Conference as a consequence of the appeal of
either party under rule 1378 during the time allowed for its consid-
eration of the award.
Should the Conference report favorably on the request for re-
vision of the award, its decision would naturally suspend the exe-
cution thereof, and it would then be necessary to consider the effect
and provisions of the revised award.
1385. Changes occurring in the political constitution of a state
do not constitute a sufficient reason for suspending the execution
of an arbitral award, so long as the international personality of
such state subsists. If, however, the new political constitution of
the state should render the award impossible of execution, the
party required to do something which, owing to changed condi-
tions, it is quite impossible for it to do should leave it to the same
arbitral tribunal to determine what alternative course should be
pursued.
TITLE V
COERCIVE MEANS IN TIME OF PEACE
WHEN RECOURSE TO COERCIVE MEANS IS JUSTIFIABLE
1386. No state whose rights have been violated or whose inter-
ests have been prejudiced by another state, can have recourse to
violence against that state, except after resort to all pacific
means, such as diplomatic negotiations, good offices, and media-
tion, in order to obtain satisfaction for the injury sustained.
1387. When the state which has sustained injury and demands
satisfaction therefor can submit its claim to arbitration, it must be
considered as bound to initiate the arbitration, in accordance with
the rules laid down in the preceding title.
1388. Indirect coercive means may be deemed lawful only as to
certain international differences of a political character, but not as
to those of a legal nature, which must be settled in accordance
with the rules prescribed in the preceding title.
1389. It is highly desirable that, in order to reduce to a mini-
mum the possibility of recourse to violent means for the settle-
ment of an international dispute, civilized states, in controversies
of a political nature, should first publicly set forth their respective
claims in the matter at issue before resorting to violent means for
its settlement. It will be expedient for this purpose that the state
alleging to be injured shall set forth in a diplomatic note the rea-
sons upon which it bases its claims, thus making it necessary for
the adverse party to justify its conduct, and in this way clearly
present the dispute before the bar of public opinion.
The rules that we suggest tend to prevent civilized states from considering
themselves both judges and parties, and to obligate them to do everything
possible toward preserving their peaceful relations.
We admit, in principle, that a state whose sovereign rights and dignity have
been assailed is entitled to obtain satisfaction therefor, and we further acknowl-
edge that recourse to arbitration in such cases does not readily commend itself
as a proper or satisfactory means of redress. We believe, however, that a
peaceful settlement of the difference is advisable, if it can be effected with
519
520
INTERNATIONAL LAW CODIFIED
honor, and before resorting to warlike measures it is well that all points in the
controversy should be publicly proclaimed.
The mysterious power of public opinion,-now that the telegraph and other
modern means of communication inform us almost with the swiftness of
thought of what is happening at the farthest end of the world is becoming
greater day by day; and with it, there is developing the sentiment of solidarity
of civilized peoples. So it will be deemed the common interest of nations thus
to assure peace and leave undisturbed the legal order of the international
society. Public opinion, within a state, may be perverted and corrupted by the
machinations of contending political partisans; but that of the civilized world
remains always impartial, because it is impersonal and disinterested. The
moral influence that the press can exercise will continue to increase with civili-
zation, and will be all the more effective with the greater participation of the
representatives of the people in the direction of public affairs and in the shap-
ing of foreign policy. Diplomacy, being no longer compelled to act secretly
in a cloud of mystery, and the policy of a state being frankly made known to the
public, it will hardly be possible for politics to continue to prevail over right
and for governments for political ends to disturb with impunity the peace of
the international society.
LAWFUL COERCIVE MEANS
1390. The coercive means permitted in time of peace are those
which have the character, properly speaking, of forced restraint
but which must, nevertheless, be regarded as indirect means of
compelling a state to make amends for an offense or for an injury
done.
These measures are:
(a) Retorsion;
(6) Reprisals;
Direct coercive means must also be deemed permissible when
they are authorized by the Congress or initiated by the Conference.
These are:
(a) Collective intervention;
(6) Commercial blockade.
RETORSION
1391. Retorsion consists in certain acts of violence committed
by a state which has sustained injury by another state, the acts
being designed to compel such state to desist from its wrongful
violation of the rights or interests of the country or of its citizens.
Retorsion may be deemed lawful, provided it is not contrary
to legal order.
1
COERCIVE MEANS IN TIME OF PEACE
521
1392. Any state which does not respect the rules resting upon
the comitas gentium, equity or the principles of natural justice,
has no right to complain because another state, injured by its
unlawful acts, retaliates in like manner in order to safeguard its
rights and interests and those of its citizens.
The basis of these rules is the well-known principle of the prætor Octavius,
contained in the Perpetual Edict:
“Quod quisque juris in alterum statuerit et ipse eodem jure utatur."
Thus, if a state provides strict measures against foreigners and subjects
them to the payment of heavy taxes either for the privilege of residing on its
territory, engaging in business, or acquiring and transmitting property, it has
no ground for complaint if other states, wishing to protect the interests of
their citizens, employ similar means or even more rigorous measures against
its citizens in order thus indirectly to compel it to modify its injurious conduct.
The same would be true if a state were radically to increase its customs tar-
iffs or in any other way exercise its sovereign rights so as to impair the freedom
of commerce or navigation over its territorial waters.
1393. It ought to be considered legitimate retorsion for a gov-
ernment to interpret restrictively an extradition treaty under
which the other contracting party has refused it extradition, and
in analogous cases to refuse to deliver criminals over to that state.
In like manner, courts may have recourse to retorsion in interpret-
ing laws which require reciprocity.
1394. No state can rely upon the right of retorsion in order to
violate the rights of private individuals, or to infringe upon the
principles of “common” law, on the ground that the other state
has violated those rights or principles to its injury.
Retorsion may be justified only when the act of violence is not contrary to
the legal order. Its object may be to prevent a foreign state from exercising
its rights in violation of the principles of equity. Unquestionably, retorsion
cannot legitimate retaliation, nor permit the commission of a palpable wrong
against a state guilty of a similar wrong, to its injury. Modern international
law provides for the repression of arbitrary violations of the legal order through
the effective means set forth in the preceding title. Therefore a state can never
be permitted to violate the laws of the international society on the mere ground
that another state has so acted toward it.
1395. It is to the interest of states and in accord with political
foresight to limit somewhat the field of retorsion in order to avoid
fomenting hostile tendencies in the relations between states; re-
course to such a measure should only be had when prudent diplo-
matic action has been unable satisfactorily to modify or dispose of
an injurious condition of affairs.
4
522
INTERNATIONAL LAW CODIFIED
REPRISALS
1396. Reprisals consist in coercive measures resorted to by one
state against another state with a view to obtaining from the
latter reparation for an injury or offense, or terminating a state of
affairs contrary to "common" law.
Reprisals consist in measures of violence based upon acts more serious than
those legitimating retorsion. Such acts are not in reality an arbitrary viola-
tion of law, but rather an irregular and discourteous manner of exercising a
state's right. On the other hand, the facts which give rise to reprisals are
contrary to the legal order, as, for instance, the arbitrary occupation of foreign
territory, the refusal to pay a debt, the refusal to make reparation for an offense
or injury, etc.
1397. Reprisals may be justified when by their nature and
manner of execution they are not manifestly opposed to the legal
organization of the international society.
1398. The act of reprisal cannot be deemed contrary to the
legal organization of the international society whenever its aim
is directly to injure the rights of the state or to cause it a direct
or immediate damage with a view to obtaining reparation of some
damage or offense committed by it, although this act of violence
may indirectly be prejudicial to its citizens.
Any act of reprisal shall be deemed contrary to the legal order
which injures directly the rights of private individuals guaranteed
by international law or tends to cause a direct and immediate prej-
udice to private individuals, although accomplished with the
intention of indirectly punishing the state.
This rule aims at consecrating the inviolability of private property and pro-
tecting the international rights of persons, by expressly prohibiting direct
injury to private persons or property through reprisals in order thus to strike
indirectly at the state of which those individuals are citizens. The citizens
of a state are bound uti universitas and not uti singuli, to bear the burdens of
the state in its international relations. Si quid universitati debetur singulis
non debetur, nec quod debet universitas singuli debent. This maxim finds its
true application in the sense that citizens are responsible for the international
obligations of the state, but are not individually liable: Repræsalius in singulos
cives alicujus civitatis non dari ob sponsionem et debitum ipsius civitatis.
During Cromwell's time, an English merchant ship had been captured on
the coast of France and confiscated without just grounds. The owner re-
quested the protection of his government and Cromwell addressed a note to
Mazarin in which he demanded compensation, within three days, for the
Englishman who owned the ship and cargo wrongfully confiscated. No heed
having been paid to this request, Cromwell, without any further diplomatic
negotiations, ordered two English ships of war to seize any French merchant
COERCIVE MEANS IN TIME OF PEACE
523
ships found in the English channel. The war vessels returned to English ports
with their prizes and Cromwell had the captured vessels sold with their car-
goes, paid out of the proceeds what was due to the injured Englishman and
sent the surplus to Mazarin. It is beyond question that such flagrant acts are
quite incompatible with the principles recognized under the international law
of our time.
1399. The following shall be considered as legitimate acts of
reprisal without a declaration of war.
(a) The refusal to pay a debt or obligation due to the state;
(6) The seizure of property belonging to the state;
(c) The interruption of commercial, postal, and telegraphic
relations established under "common” law;
(d) The suspension of all treaties or of some of them;
(e) The withdrawal of certain rights belonging to the state ac-
cording to “common” law, provided it is not one of the fundamen-
tal rights in the absence of which the international personality
of the state would no longer exist. Thus, a state could be deprived
of the right of representation or of maintaining consulates;
(1) The closing to a state and to its citizens of certain ports open
to commerce, or the prohibition of exporting goods absolutely
essential to the state;
(g) Expulsion of the citizens of a foreign state, provided it has
denied freedom of residence or has expelled nationals;
(h) Denial of the privileges and immunities granted to citizens
of the foreign state;
() Arrest of the public officers of a foreign state, if it has ar-
rested some officer of the state, or has denied him the right freely
to leave the foreign territory in order to return to his own country;
(j) Any other form of coercive measure authorized by the Con-
gress or by the Conference as reprisals.
Recourse to reprisals, as understood and admitted up to the present time,
is inconsistent with the principles that must govern the legal organization of
the international society. The most powerful states have admitted that, by
taking advantage of their strength, it is possible for them to take the law into
their own hands and thus impose their pretensions upon weaker states, if
necessary by armed force; while the use of these violent measures on their
part, legitimated as reprisals in time of peace, did not bring to an end the state
of peace and the application of the international law in force in time of peace.
Thus, they have come to the point of justifying the use of any coercive means
imposed by armed force, in order either to obtain justice in their own right, or
to protect the interests of nationals, or to compel a government to pay con-
tractual debts claimed by private persons, and similar ends. As to this last
point, the Hague Convention of 1907 (the second of the General Act) relating
!
524
INTERNATIONAL LAW CODIFIED
to the limitation of the use of armed force in the collection of contract debts
denies that reprisals can be justified on any such ground.
Article 1 of this Convention reads:
“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 Govern-
ment of another country as being due to its nationals. This undertaking is, how-
ever, not applicable when the debtor state refuses or neglects to reply to an offer
of arbitration, or, after accepting the offer, prevents any compromis' from being
agreed on, or, after the arbitration, fails to submit to the award.”
This Convention thus limits the principle which had prevailed until 1907
that the state might employ force to obtain its alleged rights. Yet it is to be
noted that the provision contained in the second paragraph still admits the use
of armed force in the cases therein stated. Should our propositions concerning
compulsory arbitration and the use of coercive means be accepted, it would
result in eliminating recourse to armed force in time of peace without first
resorting to all legal means calculated to prevent the violation of law.
The Convention, which bears the date of October 18th, 1907, was not ac-
tually signed until June 30, 1908, with numerous reservations. By carefully
examining these reservations, it will enable one better to appreciate the rules
that we propose, the object of which is to assure the sovereignty of law in the
international society.
1400. It cannot be deemed permissible to resort to reprisals
without first attempting to settle the differences by diplomatic
negotiations and other measures recognized by international law.
1401. In questions of a legal nature which in case of dispute
might constitute the object of an arbitration, recourse to reprisals
must be deemed inadmissible.
1402. Every civilized state is bound not to have recourse to
reprisals in order to assert its rights when it can make use of ordi-
nary means to obtain recognition thereof.
1403. When a state can be held responsible for an offense com-
mitted against the dignity or honor of another state and, although
invited to give proper satisfaction it declines to do so and by
subterfuge seeks to evade its obligation, the offended state may
with justice resort to reprisals to compel it to make satisfactory
amends.
In such case, the nature and extent of the reprisals must be
proportionate to the seriousness of the offense.
Offenses against the dignity and honor of a state cannot be the object of an
arbitration, and the reparation required cannot be long deferred. Should
diplomatic negotiations prove of no avail
, the offended state may then resort
to reprisals. In that case, it is permissible to present a claim supported by
armed force and by the threat of a declaration of war formulated as an ulti-
matum.
The right of legitimate defense must be admitted between states, and,
1
COERCIVE MEANS IN TIME OF PEACE
525
when honor and dignity are involved, it is futile to prolong matters by detailed
procedure in order to obtain what may properly be exacted without delay.
Nevertheless, we believe it to be essential that a public presentation of the
circumstances of the case should be made in conformity with rule 1389.
THE SEIZURE OF MERCHANT SHIPS OR EMBARGO
1404. The seizure of the merchant ships of a state, lying in the
ports of another state claiming to have a cause of complaint, can-
not be deemed a lawful form of reprisals.
An embargo laid upon these ships in order thus to compel a
state to satisfy the claims of the seizing state must be regarded as
absolutely contrary to the principles of international law.
It has been sought to justify the seizure of merchant ships of a state, against
which a claim is asserted, as a reprisal, permissible in time of peace, in order
thus to compel it to satisfy claims directed against it.
This pernicious measure is currently called embargo (a Spanish word, de-
rived from the verb embargar, to seize). History furnishes numerous instances
of such a measure having been taken in the ports of a state having grievances
against the state to which the ships belonged and which it threatened with war
and confiscation of the ships if the demands of the claimant state were not
satisfied. Cf. Pradier-Fodéré, Droit international, v. 5, § 2478.
We consider this coercive measure as absolutely unjustifiable. The property
of private persons, which ought to be held inviolable in time of war, should
certainly, and with even more reason, be regarded as sacred in time of peace.
Therefore, embargo of merchant vessels must be considered to be a violation
of the principles of international law.
We shall refer hereafter to embargo as a police measure in case of an impend-
ing declaration of war. (See rule 1449.)
INTERVENTION IN CASE OF LEGITIMATE INTERFERENCE
1405. Intervention in cases of legitimate interference can only
be justified when it has been authorized by the Congress as a
coercive measure against a state which has violated the principles
of international law or the rules proclaimed by the Congress as
conventional laws of the states constituting the international
society.
One of the most noteworthy cases of intervention under the principles which
may justify collective interference for the purpose of regulating the internal
affairs of a state and to assure order therein, without infringing the principle
of sovereignty and independence, is that provided for by the Algeciras Confer-
ence with respect to Morocco. France and Spain were entrusted with the
execution of the measures adopted in common accord in the General Act of
April 7, 1906, which was signed by Austria-Hungary, Belgium, France, Ger-
526
INTERNATIONAL LAW CODIFIED
many, Great Britain, Italy, Morocco, the Netherlands, Portugal, Russia,
Spain, Sweden and the United States.
1406. The intervention thus authorized can only have as its
object the assurance of respect for international law and the re-
pression of violations thereof.
1407. Intervention as a coercive measure ordered by the Con-
gress can take place whenever, in accordance with rules 556-562,
collective interference is legitimate and necessary to enforce re-
spect of international law.
Considering the fundamental principle that states constituting the inter-
national society are jointly and severally concerned in the maintenance of the
legal organization of that society, it logically follows that after peaceful means
have proved ineffectual to bring to an end a state of affairs antagonistic to such
organization, recourse to coercive measures is required. In order, however,
to determine their advisability and regulate their employment, the judgment
of a superior authority is necessary.
To allow one or more states independent authority to decide and act in that
respect would, manifestly, be unwise and would open the way to arbitrary
acts, inspired perhaps by selfish or interested motives. Therefore, we deem
the intervention of the Congress and its authorization as an indispensable
prerequisite to order and regulate collective interference.
We cannot share the opinion of Rivier, who would recognize friendly inter-
vention (v. II, $ 58), nor that of Oppenheim, who favors the intervention of a
state as a sort of dictatorial interference to end a conflict. (International Law,
v. II, 98 50 et seq.)
1408. When the Congress has authorized intervention, the
state or states which have been entrusted with the mission of
employing coercive measures against the culpable state, must ob-
serve the rules established by the Congress which commands
them, and, in all matters not covered by special instructions, must
comply with the general principles of international law.
COMMERCIAL BLOCKADE
1409. Commercial blockade, called pacific blockade, consists
in the investment of a port or coast of a state, effected and main-
tained by means of a number of ships of war sufficient for prohibit-
ing access thereto or egress therefrom, and designed to interrupt
completely the relations and especially commercial transactions
between the citizens of the state or states which have declared the
blockade and the state against which this coercive measure is
employed.
COERCIVE MEANS IN TIME OF PEACE
527
1410. Commercial blockade can only be considered lawful when
authorized by the Congress as a coercive measure directed against
a state of the international society guilty of violating the conven-
tional law proclaimed by the Congress, or against a state not a
member of that society in case of serious infringement of the prin-
ciples of international law.
1411. The purpose of commercial blockade must be to prevent
the importation and exportation of any kind of merchandise
through the port or ports of the state against which it has been
ordered and effectively maintained, and thus to cause real damage
to the culpable state, in order to compel it to remedy the unlawful
conditions which caused the blockade to be instituted.
1412. Commercial blockade in time of peace cannot have the
same legal character as in time of war. Consequently, it cannot
assume all the privileges which legitimately belong to belligerents
during war, but only such rights as are compatible with the purpose
of such coercive measure.
There has been much discussion as to the legitimacy of blockade in time
of peace, and many authors have contended that it could not be regarded as
a regular coercive measure according to international law. Such is the view
of Fauchille, Du blocus maritime, pp. 38 et seq.; of Geffken, Revue de droit in-
ternational, 1887; of Testa, Le Droit public international maritime, p. 229; of
Woolsey, International Law; of Gessner, Le droit des neutres sur mer; of Pradier-
Fodéré, Droit international public, v. 5, $$ 2483 et seq.; of Bonfils, 5th Ed., p.
992; and of Martens, v. 3, p. 175.
The opposite view also has its partisans, among whom we may cite Heffter,
Droit international, $ 111; Bulmerincq, Journal du droit international privé,
1888, p. 569; Annuaire of the Institut de droit international, 1887; Perels,
Manuel de droit maritime (Arendt's translation), § 30, p. 180; Rolin Jacque-
myns, Revue de droit international, 1876, pp. 618, 623; Wharton, International
Law Digest, $ 364; Fiore, Diritto internazionale pubblico, 2d ed., 1884, trans-
lated into French by Ch. Antoine, $ 1629, and 3d ed., 1888, § 1324; Oppen-
heim, International Law, § 44. Cf. Calvo, Le droit international, who cites
many historical facts and the opinions of several publicists in his 4th edition,
v. 3, §§ 1832 et seq. [See also, Hogan, Pacific blockade, London, 1908—Transl.]
It seems to us that the principal reason for the controversy lies in the fact
that no clear distinction is made between the legal character of the blockade
used as a coercive measure in time of peace and that of the blockade as prac-
ticed in time of war. Certainly blockade, with all the rights it confers upon the
belligerent against the enemy and with respect to neutrals, can only properly
exist when war is declared. To admit blockade as an operation of war in the
absence of a state of war would be a true anomaly. This anomaly disappears
when the line is clearly drawn between the two kinds of blockade and when it
is considered that the states constituting the international society cannot be
denied the right to utilize coercive means against a member state and to cause
it a certain prejudice in order to compel it by force to submit to the decision
528
INTERNATIONAL LAW CODIFIED
of the Congress. Now, commercial blockade is one of these coercive means
the employment of which is manifestly less harmful than war.
As regards states which do not belong to the international society, commer-
cial blockade can be justified in case they seriously violate the principles of
international law, which must be deemed under the collective protection of
civilized states in so far as it consecrates the rules that are indispensable for
assuring the relations of states in the international society.
1413. It is the duty of the Congress which has ordered a com-
mercial blockade to publish notice thereof through diplomatic
channels; to fix the date on which it shall take effect; to determine
on what coast and against which ports it shall extend; to grant a
reasonable time limit to all ships which may have entered the ports
before the declaration of blockade to complete their operations
and depart therefrom; and, finally, to determine which state
shall enforce the blockade.
EFFECTIVENESS OF THE BLOCKADE
1414. A commercial blockade is only effective from the time
the blockading fleet actually invests the blockaded port or ports
with a force sufficient to prevent the egress or entrance of ships.
1415. The blockade must be deemed compulsory and must be
respected by all the vessels of the merchant marine of the states
constituting the international society.
It may also be applicable to third powers, if this has been ex-
pressly stated in the note which notified the blockade diplomatic-
ally.
The blockade ordered by the Congress and notified through diplomatic chan-
nels must be deemed compulsory upon all the states constituting the interna-
tional society, by reason of the authority possessed by the Congress to order
recourse to coercive measures designed to assure respect for the laws mutually
adopted by the states in question.
It may likewise be effective as to third powers by imposing upon the citizens
of those powers the prohibition of egress from or entrance to the blockaded
ports by any ships, and this by virtue of the community of interest on the
part of all civilized countries in safeguarding the principles of international
law. States so authorized by the Congress cannot be denied the right forcibly
to exercise control over the territorial waters of the state against which the
blockade is declared so as to punish it for misdeeds and compel it to respect
international law. In such a case, without declaring war upon the culpable
state, the closing to commerce of some or all of its ports may be ordered and
universal respect for the blockade induced, not by virtue of the rights of war,
but on the ground of effective possession of its territorial waters by the states
which have forcibly occupied them and have substituted themselves there in
the exercise of the rights of sovereignty of the blockaded state.
COERCIVE MEANS IN TIME OF PEACE
529
The states which maintain an effective blockade can prohibit the ships of all
countries from crossing the blockade line. They can neither punish them,
nor subject them to the laws of war applicable in case of breach of blockade,
but they can, under the conditions determined in the following rules, prevent
them from crossing the blockade line.
We do not maintain that all this can be strictly reconciled with the freedom
of the sea and the liberty of navigation in time of peace. We acknowledge it
to be a derogation from the principles upon which must be based the respect
due to such freedom, and for that reason we deem the authorization of the
Congress to be indispensable.
Such derogation, as an exceptional measure, may be justified if, authorized
as a coercive means less disastrous than war, it may serve to attain the same
object.
1416. The blockading squadron must be considered as author-
ized to prevent merchant vessels from crossing the blockade line,
adopting the least injurious means of compulsion.
The commander of each of the war ships of the blockading fleet,
who is within signaling distance of a merchant ship about to enter
the blockaded zone, must request her to stop, observing the rules
established for the exercise of the right of visit and search, and
notify the captain not to cross the blockade line. Such notification
must be conveyed by an officer of the war vessel and entered on
the ship's journal.
1417. Should the vessel on which this notification has been
served attempt, nevertheless, to cross the blockade line, any ship
of the blockading squadron could arrest her, 'adopting, however,
the least injurious means.
The vessel once captured, the commander of the blockading fleet
may detain her. Should the culpable vessel give sufficient and
satisfactory guaranty that she will not again attempt to cross the
blockade line, the commander of the blockading fleet may allow
the vessel to proceed; otherwise, he shall have the right to order
the seizure of the captured ship and detain her until the blockade
is raised.
1418. A merchant vessel which has attempted to violate, or
which has actually succeeded in-violating the blockade cannot be
subjected to capture, nor to any other penalty applicable in case
of breach of blockade in time of war; such vessel must be restored
to her owners immediately after the raising of the blockade. She
cannot, however, claim reparation for injury arising from the
seizure. This rule will also apply to the merchant ships of the
blockaded state.
530
INTERNATIONAL LAW CODIFIED
:
The rules proposed are no doubt justifiable with respect to the states consti-
tuting the international society by virtue of the conventional rules adopted
by them on the subject of commercial blockade in time of peace. As to the
remaining non-member states, regarding which, according to paragraph 2 of
rule 1415, we consider that the commercial blockade should be likewise effica-
cious, we acknowledge, at the same time, that the limitation of the freedom of
commerce and navigation is not, as a general principle, strictly justifiable.
We observe, however, that in the international society, states must sometimes
suffer certain limitations of their right for reasons of public welfare, as private
persons do in civil society. Certain limited forms of expropriation of rights
may in certain cases be justified by supreme necessities or general welfare and
by the advisability of securing the best results and of avoiding the worst in the
interest of the community and of the Magna civitas.
1419. When a ship which has violated the blockade belongs to
the navy of a state, and it appears that she has entered or left the
blockaded port in order to carry on a commercial operation, she
thereby involves the responsibility of her country.
A
Commercial blockade, as a coercive measure resorted to without completely
breaking off peaceful relations, was often utilized in the course of the nine-
teenth century. A noteworthy example is the blockade of the coasts of Greece
in 1827 by the fleets of France, Great Britain and Russia in order to cut off
communication between Turkey and the army of Ibrahim Pasha which was
operating in Morea [Peloponnesus). In 1838, a French squadron blockaded
the ports of Mexico and took possession of the fortress of San Juan d'Ulloa,
while the French government kept on asserting its pacific intentions. We
need not mention other instances of pacific blockade, but would refer the
reader to the following.works where this subject is discussed: Calvo, 4th ed.,
v.3, $$ 1832 et seq.; Bonfils-Fauchille, $ 987; Pradier-Fodéré, v. 5, $$ 2483 et seq.
We deem it expedient, however, to note that pacific blockade, as it has been
understood up to this time, is nothing but a deplorable recognition of the pre-
ponderance of force. In other words, the strongest, in order to enforce its
claims, resorts to the simplest measures, such as reprisals and blockade, and
when these means prove inadequate, confiscates ships, even in time of peace.
When can recourse be had to pacific blockade? According to present inter-
national law, the answer would be, when the Power enforcing it has sufficient
strength to impose it.
In 1850, a certain Pacifico, a Jewish merchant, who claimed to be a British
citizen merely because he was born at Gibraltar, and demanded indemnity
from Greece for the loss of his property, instead of resorting to the courts,
succeeded in obtaining the diplomatic protection of the British government.
Lord Palmerston, head of the British cabinet, insisted that Greece should pay
the indemnity claimed, and, as it was not paid promptly, he had the coast of
Greece blockaded. As if this was not yet sufficient, he granted letters of re-
prisal, had Greek vessels in the open sea seized and declared an embargo upon
those in British ports. Great Britain won her point only because she was the
stronger of the two states in controversy; but it is impossible to find a princi-
ple of law justifying so iniquitous a procedure, which was condemned by the
British Parliament itself and stigmatized as improper, unjust, and brutal by
Lord Stanley in the House of Lords. It can only be justified on the ground
;
COERCIVE MEANS IN TIME OF PEACE
531
that in the international society as constituted to-day, the right of the strongest
is always the better.
According to the principles of justice, the right of Greece was better founded
than that of Great Britain in the particular instance cited. Greece alleged
that she could not indemnify the claimant, who professed to have suffered
injury, if the latter did not present his claim to the courts of Greece which
alone could determine the title to and amount of the indemnity. Yet Greece,
because she was the weaker, was compelled to recede from her contention,
and to pay what was required of her. All Europe was indignant at the conduct
of Great Britain, but no third Power saw fit to interpose to defend the right
of the weaker state.
Thus, until this day, pacific blockade has served only to strengthen the arbi-
trary dominance of the more powerful states, but without contributing much,
if anything, toward assuring the reign of law within the international society.
TITLE VI
THE LAST RECOURSE FOR JURIDICAL PROTECTION.
WAR
WHEN IS WAR JUSTIFIABLE?
1420. The international right of coercive action by means of
armed force should not be exercised by any state until it has ex-
hausted all diplomatic, legal and coercive means admitted in time
of peace for the settlement of a controversy existing between itself
and another state,' or unless the nature of the controversy and
special circumstances surrounding it render immediate action
imperative. The exercise of that right constitutes war.
The right of armed action inheres in the state as a last resort in protecting
itself and those belonging to it, whenever the offending government arbitrarily
refuses to submit to the authority of law and all pacific means looking to a
settlement of the dispute have been exhausted. It then becomes a necessity
for the injured state, in the absence of any supreme power having authority
to direct armed force, to protect its own right and seek proper redress for the
violation thereof, through action directed against the government which arbi-
trarily persists in refusing satisfactory reparation.
1421. The exercise of the right of war on the part of a state is
justifiable only when the necessity of resorting to this extreme and
always pernicious measure arises in order to defend its own right
from arbitrary violation by armed force.
The protection of the interests of dynasties can never justify
war; nor can war be rightfully invoked in the interests of politics
posing in disguise as the interests of the people.
Whoever reflects upon the terrible effects and lamentable consequences of
war is easily convinced that it absolutely ought not to be undertaken in the
absence of the most serious grounds.” Vattel, Le droit des gens, Pradier-
Fodéré's edition, Bk. III, chap. III, $ 24, t. XII, p. 366..
1422. It is the duty of any state which, in order to protect its
right, feels disposed to declare war upon another state, to consider
seriously the grave responsibilities which the exercise of the right
of war entails.
532
THE LAST RECOURSE-WAR
533
“Kings"-wrote Fénelon-"ought to beware of the wars which
they undertake. They ought to be just. But this is not enough;
they must be necessary for the public welfare. The blood of a
people ought not to be spilled, except to save the people in extreme
necessity." Télémaque, liv. XII.
INTERNATIONAL WAR AND CIVIL WAR
1423. War, as a legal form of international action, consists in the
use of military forces on the part of one or more states against one
or more states, in order to settle a controversy involving interna-
tional law.
Internal armed conflict between the citizens of a statewho under-
take hostilities for the object either of modifying the political con-
stitution of the state or of seceding and forming an independent
state, constitutes civil war, which, as a form of action within the
state, is governed by municipal public law.
1424. Civil war cannot be subjected to the same rules as inter-
national war. If, however, one or more foreign governments
should expressly recognize the rebels as belligerents, this would
have the effect of transforming the character of the war and the
relations between the combatants and the recognizing govern-
ments, so that the rules of international war would apply.
War, as a form of international action, brings about international legal con-
sequences and must be governed by international law. In fact, it modifies the
law which governs the international society in time of peace, not only as re-
gards the belligerents, but also as regards third powers not involved in the war.
Such exceptional modification of the laws of the international society cannot
be effected by an armed struggle having for its object the solution of an internal
difference concerning public law, but can only be warranted by war in its
true and broader sense as a legal form of international action.
It is, therefore, necessary to determine precisely whether an international
war or a civil war exists, in order accurately to establish the rules to be applied.
Even though it be conceded that a people, not constituting a State, may be
induced to establish one and that, having exhausted all other means, it may
have recourse to armed force in order to assert and defend this right against
a government which refuses to acknowledge and opposes its purpose, such
a form of action is not primarily international war, but civil war, which must
be governed by municipal public law and not by international law. It is
· true that such internecine strife, by reason of its form and development, may
under certain circumstances concern and affect international society and may
eventually require the application of international law; but that will then be
due to other reasons. (Cf. rules 556, 558 and 700.)
1
534
INTERNATIONAL LAW CODIFIED
1425. The legal character of civil war may be considered as
legally transformed when the insurgents succeed in occupying a
considerable portion of the territory of the state they oppose, and
in establishing therein a government operating as a regular govern-
ment and capable of assuming responsibilities as such.
Should the new government thus established be then recognized
by the majority of the states of the international society, and
should war continue, it could no longer be considered a civil war,
but an international war subject to the rules of international war.
In principle, the legal character of international war must be attributed to
armed struggles between states, but not to internecine struggles. Neverthe-
less, it must be recognized, by way of illustration, that although at the start
a war of secession must be deemed a civil war, yet when the seceders have
been able to constitute themselves as an independent state, the former state
is bound to be considered as provisionally divided in two, and the new state,
as a political entity, should be admitted to enjoy the rights inherent in those
who are in fact in possession of sovereign rights, who de facto regit. (Cf. rules
57, 60, 61, 128, 130, 132, 168.)
We believe that the same rules should apply in case of colonial war, when
colonies succeed in constituting themselves as independent states. Even
though the mother country may not have recognized the new state and should
continue to wage war against it in order to restore the colonial bond, it would
be illogical to regard such struggle as a civil war. Its legal character is that of
international war. (Cf. rules 168, 174, 176.)
1426. The legal character of international war cannot be as-
signed to an armed struggle between a vassal state and its suzerain
state. Such character may, however, be assigned to a war between
a protected state and the state which exercises the protectorate.
The vassal state has no international personality distinct from that of the
suzerain state, and manifestly there cannot exist between them an interna-
tional war. (Cf. rules 113 and 114).
While the relation of protectorate modifies the legal status of the protected
state, it does not, however, entail the loss of the international personality of
that state. (Cf. rules 116 et seq.)
See, on the legal character of war, Oppenheim, International law; Phillimore,
Commentaries upon international law, III, $ 49; Pradier-Fodéré, Traité, de droit
international public, v. VI, SS 2658 et seq.; Pillet, Les lois actuelles de la guerre,
chap. I, no. 7.
THE DECLARATION OF WAR
1427. Any state wishing formally to wage war against another
state should give notice of its intention to resort to armed force
for the settlement of the controversy, by publishing a diplomatic
THE LAST RECOURSE-- WAR
535
note wherein the reasons of the casus belli are summarily stated.
It cannot then begin hostilities without a preliminary declaration
of war.
1428. Hostile acts and the exercise of the rights of war, as re-
gards both the belligerents and neutrals, are justifiable only from
the time when war shall actually have begun, either through formal
declaration, or through an ultimatum notified with indication of a
peremptory time limit for the commencement of hostilities.
An ultimatum, without formal intimation of war in case of its
non-acceptance, cannot be equivalent to a declaration of war.
One of the reasons assigned for advocating the elimination of the formal
declaration of war, was that of preventing the enemy from having time in
which to complete his preparations for defense and thus rendering the other
state the better prepared to make the offensive attack. This danger may be
avoided, but the exercise of the right of war before the regular opening
hostilities is not justifiable on any ground.
It is not at all necessary that the ultimatum grant a long time limit. Strictly
speaking, a few hours might suffice to answer it, if the other state should decide
to accept the demands categorically formulated under threat of war.
At the time of the war of 1866, Bismark granted to Hesse, Hanover and Sax-
ony a time limit of twenty-four hours by the ultimatum of the 15th of June,
and, no answer having been made, the Prussian army, on the 16th of June,
entered the territory of Hanover and, on the 17th, occupied its capital.
At the time of the Transvaal war, the ultimatum notified October 10, 1899,
under threat of war, granted less than 24 hours time to Great Britain.
1429. Formal declaration of war cannot be deemed incumbent
upon a state which finds itself obliged to repel by force the armed
aggression of another state, nor upon a state against which war
has been declared and which finds itself compelled immediately to
defend itself. In such cases, however, it seems desirable that the
pending difficulty be notified to neutral powers through a public
manifesto.
1430. After the declaration of war, or after the expiration of
the peremptory time limit fixed in the ultimatum, the law of peace
must be considered as having become inapplicable, and the law of
war as having come into force both as regards belligerents and
third powers.
1431. Should any state commence hostilities without previous
declaration of war, it shall be deemed dishonorable and contrary
to modern international law.
The rules proposed are in accord with our previous opinions. Fiore,
Diritto internazionale pubblico, 1st ed., 1865, p. 387; id., 2d ed., $$ 1551 and
536
INTERNATIONAL LAW CODIFIED
1879; former editions of the present work, arts. 936 et seq., 1st. ed., 1890; art.
1146, 3d ed., 1900. They have been solemnly sanctioned in the third Conven-
tion of the General Act of The Hague of 1907, which provides as follows:
Article 1.--The Contracting Powers recognize that hostilities between themselves
must not commence without previous and explicit warning, in the form either of a
reasoned declaration of war or of an ultimatum with conditional declaration of war.
Article II.-The existence of a state of war must be notified to the neutral Power's
without delay, and shall not take effect in regard to them until after the receipt of a
notification, which may, however, be given by telegraph. Neutral Powers, never-
theless, cannot rely on the absence of notification if it is clearly established that
they were in fact aware of the existence of a state of war.
Article III.-Article I of the present Convention shall take effect in case of war
between two or more of the Contracting Powers. Article II is binding as between
a belligerent Power which is a party to the Convention and neutral Powers which
are also parties to the Convention.
WHEN DOES WAR EXIST IN FACT?
1432. Even when a state engages in armed hostilities against
another state without having previously exhausted all the meas-
ures agreed upon for the pacific settlement of the dispute, and
without having formally declared war, the struggle will, neverthe-
less, possess the true character of war whenever made with or-
ganized armies and fleets, and with the object of settling by force
of arms a contest involving international law.
Leaving aside the question of the legitimacy of war, there is no doubt that
an open struggle conducted by organized military forces for the purpose of
settling a question of public law, cannot lose its legal character on account of
the non-observance of the measures which in ordinary cases should precede
the opening of hostilities. It might well happen that a war breaks out between
one state and another which is not a member of the international society, or
that a state belonging to the international society places itself outside the
"common” law by forthwith employing armed force for settling a dispute with
another state. It might also happen that a state, without having recourse to
pacific means to secure the recognition of its rights, asserts and supports them
by armed force. In such a case, it cannot be maintained that an armed strug-
gle between two or more states should not be characterized as war. When the
cause of the hostilities is a violation of law and is clearly characterized as an
arbitrary act, while having a decisive influence upon the legitimacy or illegiti-
macy of the war, it cannot affect the armed struggle as a state of actual war,
even as to a state which employs armed force to disregard the right of others
'or to violate the laws of the international society.
1433. The state of war must be considered as existing de facto
from the time when either of the contending states has committed
the first hostile act.
While it is desirable according to the just principles of modern law that the
state of war, with all its legal consequences, should be considered as existing
THE LAST RECOURSE-WAR
537
only from the time the state has made known in a precise and unequivocal
manner that it resorts to armed force for the protection of its rights, yet if one
of the contending states commits the first act of hostility, that fact will be
deemed sufficient to establish the beginning of a state of war. Any discussion
as to the regularity of the procedure, the legitimacy of the acts of violence
and hostility previous to the declaration of war must be considered as fruitless.
Once the act of hostility is accomplished, war must be deemed as having, ipso
facto, begun.
GENERAL EFFECTS OF WAR
1434. The general and immediate effect of war is to render
applicable, from the time it begins until peace is concluded, the
laws, usages, and international conventions that relate thereto,
both as between the belligerents and with respect to neutral states.
1435. An immediate effect of war is to make lawful between the
belligerents, ipso jure ipsoque facto, acts of violence against persons
who take an active part therein and against the enemy's property,
and to legitimate operations of attack and defense conformable
to the usages of war and those which unforeseen necessities may
require.
DIPLOMATIC RELATIONS
1436. Once war has broken out, diplomatic relations between
the belligerent states are severed.
The diplomatic representatives will be recalled by their respec-
tive governments or they may be dismissed by handing them their
passports and granting them sufficient time to leave the country
with the privileges and guaranties which are due them according
to international law.
If they should not leave within the time granted, the Govern-
ment may compel their departure by having them conducted to the
frontier.
1437. The belligerent government ought not to withdraw the
exequatur from all the consuls of the enemy state, but should
maintain it in force with respect to those who do not take undue
advantage of their situation and who continue to exercise their
legitimate functions. It may, however, withdraw the exequatur
from consuls whose attitude is open to suspicion, and especially
from those who, as citizens of the hostile state, may naturally
take undue advantage of their position.
538
INTERNATIONAL LAW CODIFIED
Since war does not interrupt all commercial intercourse and relations be-
tween private citizens of the belligerent states, the presence and functions of
consuls are not, in principle, necessarily inconsistent with a state of war. The
dismissal of all the consuls who exercise their functions in a hostile country
would not, therefore, as a general rule be justified. It is preferable that gov-
ernments should act with caution and should not withdraw the exequatur ex-
cept as to such consuls as may be suspected of taking undue advantage of their
position in order to promote the interests of the belligerent state to which they
belong.
At any rate, the government of a belligerent state should never be denied
the privilege of entrusting to the representations of a neutral and friendly
Power the protection of its nationals in an enemy state.
TREATIES
1438. The extinction of all treaties and conventions concluded
between the belligerent states cannot be deemed an immediate
effect of war, but only the termination of those which, by their
nature and object, are necessarily inconsistent with a state of war.
Even though the execution or performance of a treaty must be
regarded as suspended during the state of war by reason of its
incompatibility with that condition of affairs or because of the
obstacles created by hostilities, that circumstance cannot annul
the legal force of the conventional obligations assumed by the
belligerent states. These obligations again become valid and
operative at the end of the war, unless the terms of peace modify
the conventional relations previously established.
Several writers (Cf. Phillimore, v. 3, § 530; Twiss, v. 1, § 252; Calvo,
4th ed., § 362) have held that treaties concluded between states were automat-
ically terminated whenever war broke out between them; but this theory
does not seem to us justifiable. (Cf. rules 845 and 859.)
War does not place the combatants in the status of the so-called "state of
nature” and does not destroy the authority of international and of conven-
tional law so far as they are concerned. To be sure, war constitutes in itself a
case of force majeure with respect to the exercise of any right which may be
exercised and enjoyed only during peace. Yet, since war, considered as ul-
tima ratio, must tend to restore the authority and respect of violated right,
it is decidedly illogical to admit that it may destroy, with respect to belliger-
ents, pre-existing rights, whether those rights arise out of custom or treaties.
It is very likely that the state of war, while it lasts, may render impossible the
execution of treaties, and it must be admitted that performance must be sus-
pended while the impossibility lasts. But this suspension of treaties cannot
bar those acts whose execution is compatible with the state of war; e. g.,
treaties concerning the execution of judgments of the respective courts, ar-
tistic and literary copyright and trade-mark treaties, those governing succes-
sion and bankruptcy, treaties of residence and travel, etc.
We persist, therefore, in maintaining that war does not in general destroy
THE LAST RECOURSE-WAR
539
the legal force of the conventional relations previously established between the
belligerent states, but that legal rights and obligations based upon previous
treaties recover their value when war has ceased, unless the treaty of peace
shall otherwise provide. Cf. Bluntschli, Le droit international codifié, 3d ed.
(transl. by Lardy), rule 538; Oppenheim, op. cit., v. II, § 99; Bonfils-
Fauchille, $ 1049; Pradier-Fodéré, v. VI, § 2704.
1439. All treaties, either general or special, concluded by states
with a view to conditions of war, become operative from the time
war is declared.
This is illustrated by the Paris Convention of 1856 concerning maritime
war; by the conventions concluded at The Hague in 1907, relating to rights
and duties of nations in time of war; and by the conventional provisions relat-
ing to contraband of war, embargo, etc.
MILITARY POWER-MARTIAL LAW
1440. One of the effects of war is to bestow extraordinary powers
upon the commanding officers of the army and navy, both as
regards combatants and non-combatants who happen to be in the
war areas.
The commanding officer has the right to authorize whatever
measures he may deem necessary to assure the success of the
military operations, and to provide for urgent necessities through
proclamation, even to the extent of proclaiming martial law.
1141. The proclamation and application of martial law cannot
take place except at the time when enemy territory is seized and
occupied.
With respect to the extent of the powers based upon martial law, see here-
after the rules relating to military occupation.
1442. Every military commander, in exercising the extraordi-
nary powers which attach to his position in time of war must,
however, refrain from violating the principles of natural justice,
and must not disregard, in an arbitrary manner and without'good
reasons, the fundamental rights of persons and the guaranties
which are vouchsafed to them by international law.
While the eventual necessities of war may, in principle, occasionally justify
derogations from the “common” law, nevertheless it is inadmissible that any
arbitrary wish or order of a military commander should supersede the law.
When exaggeration and abuse are clear in the circumstances, the extraordinary
powers of the commander cannot justify his usurpation of authority.
540
INTERNATIONAL LAW CODIFIED
MUNICIPAL LEGISLATION IN TIME OF WAR
1443. War at once brings into operation that part of municipal
legislation which, in practically every country, governs the state
of war, and maintains it in force until peace is concluded.
War is an exceptional state of affairs which, so far as the exercise of rights is
concerned, constitutes force majeure. Therefore, during its continuance, the
legislator must, by means of exceptional provisions, regulate the enjoyment
and exercise of rights, and indicate the changes in public law which the exi-
gency of war may require. Thus, in most if not all countries there exist excep-
tional provisions in the Civil Code concerning the forms of wills in time of war;
in the Commercial Code, as regards the time periods for the bringing of an
action of guaranty against the joint debtors under a bill of exchange; in the
Merchant Marine Code, concerning goods which constitute contraband of war.
The Military Criminal Code is divided into two parts,-one in force in time
of peace, the other in force in time of war. By the legislation of some countries,
the principal change which public law may undergo in time of war arises from
the possibility of proclaiming martial law. For example, this is expressly
provided by the French law of April 3, 1898. That is one of the reasons why
it is necessary to establish precisely when peace ends and war begins; hence
the absolute necessity of a formal declaration of war.
EFFECTS OF WAR ON PERSONS AND THEIR PROPERTY
1444. As a general effect of war, the citizens of the belligerent
states or those of neutral countries who take part in the war oper-
ations are subject, as such, to the laws of war, which limit the free
enjoyment of rights, so long as the necessities of war and the duties
of neutrality may so require. Members of the army or the navy, or
those who in any way participate in the armed struggle must be
regarded as enemies. Private citizens of either of the belligerent
states who do not take any effective part in the war, must be
protected in the respective territories of those states in their per-
sonal security, the inviolability of their property, and the exercise
and enjoyment of their private rights.
Modern law is opposed to the old idea or theory which regarded all of the
nationals of the belligerent states as enemies. At present, only the individuals
who actively participate in the struggle are considered enemies. This proper
conception was formulated as follows in the remarkable speech made by Por-
talis in Year VIII, on opening the Council of Prizes:
“Between two or more belligerent nations, the individuals of which these
nations are composed are enemies only by accident; they are not enemies
even as citizens, they are enemies as soldiers only."
[This principle was in fact enunciated by Rousseau in his Contrat Social
and was quoted by Portalis and others after him with unreflecting commenda-
tion. Anglo-American courts of law have adopted an entirely different view,
1
THE LAST RECOURSE-WAR
541
whatever philosophical justification may be found in Rousseau's doctrine.
The matter is accurately analyzed by Westlake, International Law, II, p. 37
Transl.)
1445. A belligerent may subject those who are in the area of
war and who do not take an active part in the hostilities to the
orders of the military authorities and punish them for non-compli-
ance therewith. He may also impose limitations upon them in the
exercise and enjoyment of their rights, which may be justified by
the exigencies of war. He may also subject their property to the
necessities of war upon taking possession of the enemy's territory,
yet without violating the laws and usages of war or the rules set
forth below.
See hereinafter the rules concerning the rights of belligerents over the prop-
erty of citizens of the enemy state in time of war.
1446. A belligerent state has no right to prevent the citizens
of the hostile state from continuing to reside on its territory and
to pursue their peaceful vocations, trade and commerce. Such
obligation, however, would no longer exist if their conduct gives
rise to well-founded suspicions that, for the purpose of war, they
were aiding or favoring the government of the country of which
they were citizens.
1447. It must be deemed contrary to the just principles of
modern law to order the expulsion en masse of all the citizens of a
hostile state who conduct themselves peacefully and do not com-
mit any violation of law.
Even when the expulsion of some of them might be justified by
their suspicious conduct, it ought to be considered contrary to
natural justice to refuse them a reasonable time for settling their
affairs before their enforced departure.
During the war of 1877, between Russia and Turkey, the Emperor of Russia
authorized Turkish citizens residing in Russia to continue to live there and
to exercise their peaceful callings under the protection of Russian laws. Dur-
ing the Russo-Japanese war, only the Japanese living in the oriental provinces
were expelled, those living in the other provinces of the Russian Empire being
permitted to continue their peaceful residence therein.
In many treaties of commerce and residence there is stipulated a time limit
granted to merchants, in the event of war breaking out between the contract-
ing states, for settling their affairs and placing their merchandise in safety
before their departure. This clause, generally accepted, should henceforth
be regarded as a rule of “common” law and respected as such.
At any rate, it would be unfair for a government to order the immediate
departure of private citizens of the enemy state without granting them a
542
INTERNATIONAL LAW CODIFIED
reasonable time in which to settle their affairs (three months at least). If
the correct conception of Portalis (note under rule 1444) is borne in mind, that
private citizens of the belligerent states are not at war with one another, the
most natural and equitable rule consists in respecting the peaceful relations
existing between the citizens of the contending governments notwithstanding
the state of war. Such a course appears all the more reasonable when it is
considered that the adoption of the opposite rule cannot be of any practical
value to the belligerent states.
1448. It should be regarded as an act clearly contravening
the principles of modern law to confiscate the property of private
citizens of an enemy state who were residing in the state before
the declaration of war, and especially to seize by embargo and to
confiscate the merchant ships belonging to citizens of the other
belligerent, before the declaration of war. Such a course would
manifestly constitute a most serious violation of private property
and would be an unwarranted impeachment of the good faith of
peaceful merchants.
Confiscating enemy merchant ships subjected to embargo before the declara-
tion of war cannot be justified under any circumstance, not even as an act
of reprisal. How, in effect, could the legal character of an act accomplished
in time of peace be perverted in order to subject it to the laws of war?
Honesty, good faith and respect for the principles of natural justice require
that merchants who have entered foreign ports for the purpose of transacting
business under the protection of the law of peace, should, in the event that
war breaks out, have a reasonable time limit in which to complete their busi-
ness and seek safety before being subjected to the laws of war.
1449. Temporary sequestration of enemy merchant ships in
the ports of the other state at or near the time of the declaration
of war, may be justifiable as a reasonable police measure when its
object is to prevent divulgence by such detained vessels of the facts
and circumstances relating to the preparations for or operations
of war which it is necessary to keep secret. However, this measure,
required for the safety of the state must, so far as its duration is
concerned, be limited to the object it has in view.
1450. The states which signed the Convention of October 18,
1907, must be deemed bound to observe the provisions of that
Convention with respect to merchant ships in their ports when
hostilities begin.
The other states which did not sign it must, nevertheless, con-
șider the rules it contains as the expression of the best principles
of modern international law.
The Convention relating to the treatment of the merchant ships of a hostile
state is the sixth of the Final Act of The Hague Conference; it bears the date
THE LAST RECOURSE-WAR
543
of October 18, 1907, but was in reality signed June 30, 1908. Germany and
Russia made certain reservations.
The convention contains the following provisions:
Art 1.-When a merchant ship belonging to one of the belligerent powers is,
at the commencement of hostilities, in an enemy port, it is desirable that it should
be allowed to depart freely, either immediately, or after a reasonable number of
days of grace, and to proceed, after being furnished with a pass, direct to its port
of destination or any other port indicated.
The same rule should apply in the case of a ship which has left its last port of
departure before the commencement of the war and entered a port belonging to the
enemy while still ignorant that hostilities had broken out.
Art 2.-A merchant ship unable, owing to circumstances of force majeure, to
leave the enemy port within the period contemplated in the above article or which
was not allowed to leave, cannot be confiscated.
The belligerent may only detain it, without payment of compensation, but sub-
ject to the obligation of restoring it after the war, or requisition it on payment of
compensation.
Art. 3.-Enemy merchant ships which left their last port of departure before
the commencement of the war, and are encountered on the high seas while still
ignorant of the outbreak of hostilities cannot be confiscated. They are only liable
to detention on the understanding that they shall be restored after the war without
compensation, or to be requisitioned, or even destroyed, on payment of compensa-
tion, but in such case provision must be made for the safety of the persons on board
as well as the security of the ship's papers.
After touching at a port in their own country or at a neutral port, these ships
are subject to the laws and customs of maritime war.
Art. 4.-Enemy cargo on board the vessels referred to in Articles 1 and 2 is
likewise liable to be detained and restored after the termination of the war without
payment of compensation, or to be requisitioned on payment of compensation,
with or without the ship.
The same rule applies in the case of cargo on board the vessels referred to in
Article 3.
Art. 5.-The present Convention does not affect merchant ships whose build
shows that they are intended for conversion into war ships.
Art. 6.--The provisions of the present convention do not apply except between
contracting Powers, and then only if all the belligerents are parties to the Con-
vention.
GENERAL RULES CONCERNING THE EXERCISE OF THE RIGHTS OF WAR
1451. It is the duty of every civilized state, aside from the
obligations expressly undertaken in an international convention
concluded on the subject, to exercise the rights of war according
to the rational principles of international law, the laws of human-
ity and the requirements of civilization.
For this purpose, every government must draft suitable regula-
tions and instructions calculated to prevent any arbitrary act on
the part of the military authorities; to prevent, so far as possible,
the excesses and violence not justified by the exigency of war; to
544
INTERNATIONAL LAW CODIFIED
regulate the behavior of the army and navy in their relations with
the belligerents of the hostile state and with the peaceful popu-
lation, in order to restrict within just limits the disastrous conse-
quences and unavoidable evils incident to war, and likewise to
protect the rights of man, the laws of humanity and the require-
ments of civilization.
1452. Every government which has failed so to provide, by
promulgating and making compulsory army and navy regula-
tions and instructions to that end, or which, having provided
therefor, has shown culpable neglect by failing to take the measures
necessary for assuring the execution of the said regulations and
instructions, or which fails to punish those who have violated the
laws and usages of war declared compulsory, shall be deemed
legally liable in damages. Such fact shall give rise to the inter-
national responsibility of the state for any damage arising from
offenses or atrocities committed by its army or navy in violation
of the laws and usages of war declared compulsory.
Several governments have, in fact, and aside from any engagement imposed
by an international convention, drawn up regulations and instructions for
their troops in time of war and have made them compulsory by law or decree.
This is what the United States government has done.
The instructions for the government of the armies of the United States in
the field were drawn up by Professor Lieber, author of the draft, which was
later revised by a committee of officers. They were ratified by President
Lincoln in 1863, and are the most complete in existence.
In like manner, Italy, in a spirit as usual fair and liberal, promulgated by
a decree of November 2, 1882, the regulations for the service of the army in
time of war, amended later by the decree of September 16, 1896.
In France the provisional regulations for the troops in the field were ap-
proved by decree of October 11, 1809, dated from Schoenbrunn; they were
followed by other provisional instructions in 1823; and finally the army service
was regulated by the presidential decree of October 28, 1883.
Germany proclaimed its last regulations for the service in time of war under
date of January 1, 1900.
The first attempt toward rendering compulsory any international regula-
tions concerning the laws and customs of war on the European continent was
initiated by the Russian government, which prepared a draft agreement to
determine the rights and duties of belligerent states and summoned the meet-
ing of a Conference. This Conference met at Brussels on July 27, 1874, dis-
cussed the draft, amended it materially on various points, and drew up a new
draft which was submitted to the approval of governments. It was not finally
approved. The first Peace Conference of 1899, guided by the draft conven-
tion of the Brussels Conference of 1874, regulated certain matters relating to
the exercise of the right of war. The Second Peace Conference of 1907 de-
voted its attention to the same question; the fourth convention of the General
Act relates specifically to the regulation of war and makes the provisions
THE LAST RECOURSE-WAR
545
relating to the laws and customs of war, as adopted, compulsory upon the
signatory states.
1453. All the states of the international society which have
signed the conventions relating to the laws and customs of war
concluded at The Hague on July 29, 1899, and October 18, 1907,
must under these Conventions be deemed bound to observe the
provisions agreed upon as compulsory in land warfare, provided
they have been ratified.
1454. It is the duty of every one of the states which has signed
and ratified the Convention of October 18, 1907, and of all the
states which have adhered thereto, to give to their land forces
instructions in accordance with the regulations concerning the
laws and customs of continental war annexed to the said Conven-
tion and which are to be regarded as compulsory and applicable
between the contracting parties should war break out between them.
Cf. articles 1 and 2 of the Convention under rule 1456.
1455. The laws and customs of war declared obligatory in con-
tinental war upon the states which have signed and ratified the
General Act of The Hague Conference of October 18, 1907, must
be considered under the guaranty and collective protection of the
signatory states, like any other international engagement con-
tracted in a general treaty.
Compare the declaration made at the London Conference, on January 17,
1871, Protocol No. 1, which reads as follows:
"The Plenipotentiaries convened in Conference recognize that it is an
essential principle of international law that no power can free itself from the
engagements of a treaty, or modify its stipulations except with the consent
of the contracting parties through a friendly understanding."
[This was mere lip service to the principle of the sanctity of treaties. As
a matter of fact, Russia had just then taken advantage of the Franco-German
war of 1870 to denounce certain stipulations of the treaty of Paris of 1856.
See Westlake, 2d ed., v. I, p. 297.-Transl.)
1456. Any state of the international society which may be at
war with another member state or with one which has adhered to
and ratified the aforesaid Convention, shall be held responsible
for any violation of the provisions of the regulations, subscribed
and ratified, committed on its own part or by persons constituting
part of its armed forces; moreover, in proper cases, it shall be
bound to make compensation for the damage so inflicted.
The rules that we propose are based on the Convention which is part of the
General Act of The Hague of 1907, which amended that of July 29, 1899,
546
INTERNATIONAL LAW CODIFIED
concerning the laws and customs of war. It is the fourth convention of the
General Act and stipulates as follows:
ARTICLE 1.—The Contracting Powers shall issue instructions to their armed
land forces which shall be in conformity with the Regulations respecting the laws
and customs of war on land, annexed to the present Convention.
ARTICLE 2.-The provisions contained in the Regulations referred to in Ar-
ticle 1, as well as in the present Convention, do not apply except between Contract-
ing Powers, and then only if all the belligerents are parties to the Convention.
ARTICLE 3.—A belligerent party which violates the provisions of the said Regula-
tions shall, if the case warrants, be liable to pay compensation. It shall be respon-
sible for all acts committed by persons forming part of its armed forces.
ARTICLE 4.-The present Convention, duly ratified, shall as between Contract-
ing Powers, be substituted for the Convention of the 29th July, 1899, respecting
the laws and customs of war on land.
The Convention of 1899 remains in force as between the Powers which signed
it, and which do not also ratify the present Convention.
1457. For the general purpose of restricting the evils and suffer-
ings of war, it is incumbent upon the states constituting the in-
ternational society to complete the codification of the laws and
usages of land and maritime war and to sign and ratify the same.
In this way, the conduct of belligerents in their relations with one
another and with non-combatants would be governed by the
principles of justice and humanity, and, as far as practicable, all
arbitrary, unlawful or inhuman acts of the military authorities
and combatants would be eliminated.
The regulations of the laws and usages of land war as stipulated by the
Convention of 1907 are, on several points, quite satisfactory. They were the
outcome of numerous studies on the subject made by those who drew up
the instructions given to the armies of the civilized states, among which in-
structions special mention must be made of those given by the United States
in 1863, by publicists, by the Brussels Conference of 1874, and by the Institute
of International Law, which drafted a Regulation which was discussed and
approved at the Oxford session of September 9, 1880.
The Conference of 1899 had already regulated certain points; but that of
1907, while revising the regulations of 1899, has introduced some noteworthy
improvements in the codification of the laws and usages of land war. A fact
of very great importance is that the convention was signed without reservation
by the following thirty-eight (38) states:
Argentina Denmark
Luxemburg
Roumania
Belgium Dominican Republic Mexico
Salvador
Bolivia
Ecuador
Netherlands
Servia
Brazil
France
Nicaragua
Siam
Bulgaria Great Britain
Norway
Spain
Chile
Greece
Panama
Sweden
China
Guatemala
Paraguay,
Switzerland
Colombia Haiti
Persia
United States
Cuba
Italy
Peru
Uruguay
Portugal
Venezuela
THE LAST RECOURSE-WAR
547
1
It was signed with certain reservations by Austria-Hungary, Germany,
Japan, Montenegro, Russia and Turkey.
We shall set out the articles of these regulations, studying each of the points
to which they refer. It is to be hoped that this work will go on and that mari-
time war will be likewise regulated.
1458. So long as a complete code respecting the laws and usages
of land and maritime war shall not have been issued, the states
represented at the Conference of 1907 are bound to exercise the
rights of war in cases not contemplated and regulated by the rules,
in conformity with the principles of the law of nations, which are
founded upon the usages established among civilized peoples, the
laws of humanity and the dictates of public conscience.
This rule is based on the declaration made and signed without reservation
by the forty-four states represented at the Conference of 1907, and which
constitutes the preamble of the Convention respecting the laws and usages
of land war, the fourth Convention of the General Act of October 18, 1907.
It reads:
“The High Contracting Parties clearly do not intend that unforeseen cases
should, in the absence of a written undertaking, be left to the arbitrary judgment
of military commanders.
“Until a more complete code of the laws of war has been issued, the High Con-
tracting Parties deem it expedient to declare that, in cases not included in the
Regulations adopted by them, the inhabitants and the belligerents remain under
the protection and the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from the laws of humanity
and the dictates of public conscience.''
2
TITLE VII
EXERCISE OF THE RIGHTS OF WAR
BELLIGERENTS MAY EXERCISE THE RIGHTS OF WAR
1459. The exercise of the rights of war can lawfully appertain
only to the persons who may be rightfully regarded as belligerents
under the laws of war.
Any act of hostility, any armed violence against the person or
property of the hostile sovereign or state and of its citizens, even
though legitimate under the laws of war, shall be deemed unlawful
and punishable according to "common" law, if committed by
one who is not properly a belligerent.
Compare rules 1474 and 1477.
Considering the fundamental principle that war, according to modern law,
is not an armed struggle between all the citizens of the belligerent states, but
a struggle between the military forces of these states, it logically follows that
only the individuals who belong to such forces are at all justified in committing
acts of hostility.
WHO MUST BE DEEMED A BELLIGERENT
1460. All the individuals who constitute the regular military
force in the service of the state, without distinction as between
combatants and non-combatants, shall be regarded as belligerents.
1461. The military force comprises:
(a) The regular army;
(6) Any kind of militia organized in conformity with the military
law (territorial militia, landwehr, national or civic guard);
(c) Volunteer corps militarily organized with the approval of
the government, having a responsible chief and under the supreme
authority of the commander-in-chief;
(d) The navy and merchant ships duly converted into ships of
war, and privateers duly licensed. (Cf. rules 1613 et seq.)
(e) The crews of ships of war and war craft.
548
EXERCISE OF THE RIGHTS OF WAR
549
1462. The volunteer corps shall be deemed belligerents in war on
land when they fulfill the following conditions:
(1) To be commanded by a person responsible for his subordinates;
(2) To have a fixed distinctive emblem recognizable at a distance;
(3) To carry arms openly; and
(4) To conduct their operations in accordance with the laws and
customs of war. (Art. 1 of the Regulations of October 18, 1907, of
The Hague Conference.)
1463. The inhabitants of a territory which has not been occupied,
who, on the approach of the enemy, spontaneously take up arms to
resist the invading troops without having had time to organize them-
selves in accordance with Article 1, shall be regarded as belligerents
if they carry arms openly and if they respect the laws and customs of
war.
Article 2 of the aforesaid regulations.
In the preceding editions, we have formulated this rule as follows:
“The inhabitants of a country not militarily occupied by the enemy, who,
on his approach, without being militarily organized resist openly, with arms,
to defend their country, and who, united, commit acts of hostility and exercise
as best they can the right of legitimate defense, shall be likewise regarded as
belligerents.” (Rule 947, 1st edition (1890); rule 1163, 2d and 3d ed.)
We had not deemed it necessary that the population, prompted by the
sentiment of defending their native soil against invaders, should be bound to
comply with the laws and usages of war in order to be treated as belligerents.
Should inhabitants who defend their country as best they can against a mili-
tary attack or occupation come within the criminal law, without being able
to invoke the protection of international law applicable in time of war?
REGULAR MILITIA, VOLUNTEERS, SAVAGES
1464. It is the duty of the governments of civilized states to
provide by their laws for the organization of militia, so as to utilize
all the fighting strength of their country and thus oppose the enemy
with corps of troops militarily organized rather than rely upon
volunteers.
1465. Every government shall have the right to employ volun-
teer corps, but shall not encourage irregular warfare by persons not
accustomed to military discipline. It shall see that volunteer
corps comply strictly with the laws of war and recognize the su-
preme authority of the commander-in-chief.
1466. No government of a civilized state shall have the right,
even in case of necessity, to make use of the savages of its colonial
550
INTERNATIONAL LAW CODIFIED
possessions, who wage war in their own way and are devoid of the
sentiment of military honor and discipline like civilized peoples.
WHO CAN BE CONSIDERED A BELLIGERENT IN A CIVIL WAR
1467. A faction which conducts an armed struggle against the
troops of the State in order to throw off the authority of the Gov-
ernment, or in the effort to secede and constitute an independent
state, may be recognized as a belligerent when the following con-
ditions are present:
(1) That the insurrection has broken out in a portion of the
territory considerable in extent and the insurgents are sufficiently
numerous and militarily organized as to offer serious resistance to
the armed forces of the State;
(2) That the armed struggle, having regard to its duration,
extent, political object, etc., assumes the character of war between
the insurgent party and the State;
(3) That the insurgents succeed in establishing, somewhere in
the territory of the State, a government which is so organized as
to give the movement a unity of direction, and that they are
directed and controlled by a commander-in-chief whom they obey
and who is capable of assuming responsibility for their acts;
(4) That the insurgents respect the principles of international
law and comply in their military operations with the laws and
usages of war.
1468. Even though the insurgents may be recognized as bellig-
erents by third Powers, that fact cannot prevent the regularly
established government which they are opposing, from treating
the leaders of the insurrection as rebels or as guilty of high treason.
1469. Every state which has recognized the insurgents as bel-
ligerents is bound to adhere to the laws and usages of war in its
relations with them and with the Government they are opposing.
1470. When the State against which the insurrection is directed
shall, of its own accord, recognize the latter as belligerents, their
character as such must be regarded as established in their favor
with respect to all third Powers, a fact which makes it possible
for the insurgents to require from all parties the application of the
laws of war and the recognition of the rights and duties arising out
of a regular war between two independent states.
#
EXERCISE OF THE RIGHTS OF WAR
551
1471. Recognition as belligerents on the part of the regularly
established Government cannot be regarded as equivalent to the
recognition of their independence, but compels the State, in its
relations with the combatant and non-combatant insurgents, to
apply and observe in their entirety the laws of war.
VOLUNTEERS
1472. Volunteers and irregulars who, without the express au-
thorization of the government of the belligerent state, participate
in the war, can be regarded as belligerents and require the applica-
tion of the laws of war under the following conditions:
(1) That they be of a considerable number, militarily organized,
and subject to the supreme authority of a commander-in-chief;
(2) That they carry visible arms;
(3) That they loyally fight for the principle which was the cause
of the war;
}
(4) That in their movements they conduct themselves as soldiers
and observe the laws and usages of war like regular troops.
We believe that a distinction should be made between bodies of volunteers
which take part in the military operations on request of the government or
with its consent, and those which are occasionally formed in the course of
the war, usually on the initiative of some leader, and composed of individuals
who act on their own responsibility, being impelled and inspired by a full
belief in the justice of the cause for which the war is waged. The former must
be considered as an element of the military force of the State according to
rule 1461c. The latter cannot be deemed to belong to the military force of
the State. Therefore, in order that volunteers may be considered as soldiers,
it should not be necessary to require the carrying of an exterior distinctive
emblem recognizable at a distance. When fulfilling the conditions set forth
in our rule, the belligerent ought not to be regarded as beyond the pale of
international law.
Partisan war (guerilla) can really become unrestrained because it leaves the
door open to individual initiative and can easily be transformed into a military
venture for the advantage of partisans. The principal condition of the recogni-
tion of irregulars as belligerents ought to be loyalty, both in the manner of
conducting engagements and in their military behavior, refraining from surpris-
ing the enemy by deceit. We acknowledge that in this respect much must
be left to the prudent judgment of the commander-in-chief, but he must not
exceed his powers. Thus, we think that the chief of the German army over-
stepped his authority during the war of 1870, when he promulgated the fol-
lowing proclamation:
“Every person arrested, who desires to be treated as a prisoner of war,
will have to prove his character as a French soldier by exhibiting the order
of the proper authority and proving that he was called to perform his military
552
INTERNATIONAL LAW CODIFIED
service and that his name is entered on the matriculation book of a corps
militarily organized by the French Government."
1473. In case the government calls for volunteers for the de-
fense of the country, or in case of wholesale levies, all the citizens
called to the colors and those who, on their own initiative, may
have organized themselves into military corps, shall be treated as
soldiers:
(1) When they openly carry arms and perform acts of hostility
without treachery or dishonesty;
(2) When they are commanded by a responsible chief;
(3) When their character as combatants is established by their
organizations, movements and military conduct.
THOSE HAVING NO RIGHT TO BE CALLED BELLIGERENTS
1474. It is impossible to grant the exercise of rights of war to
persons militarily organized, however considerable their number
may be, when they make use of armed force to plunder or rob, or
commit other acts contrary to international law.
1475. Armed bands committing hostile acts in time of war by
engaging in operations on their own account and without au-
thorization of the Government and, when necessary, concealing
their identity as combatants, cannot invoke the application of
the laws of war nor be recognized as belligerents. Acts of violence
committed by them shall be regarded as crimes and subject, as
such, to the application of the criminal law.
The armed bands which used to devastate Southern Italy, sacking private
property, were militarily organized and had chiefs; by no means, however,
could they rightfully be regarded as belligerents when they made use of their
arms to violate the rights of private persons. Although composed of a con-
siderable number of men, they were merely a band of marauders unworthy
of being treated like enemies of the State; they could only be considered as
criminals.
1476. The status of a belligerent may be refused to volunteer
bodies undertaking a military expedition without authorization
or tacit connivance of the Government, and committing acts of
war, not in the interest of the State or for the triumph of an idea
representing the sentiments of a considerable part of the people,
but for the fulfillment, at their own risk, of a political object.
EXERCISE OF THE RIGHTS OF WAR
553
It is inadmissible that the status of a belligerent should be conferred upon
every one undertaking a military expedition with a political object in view.
The motive or purpose of certain undertakings will no doubt have to be con-
sidered before assigning to acts of violence the character of political offenses.
Nevertheless, since the right to wage war is not a private right, it cannot be
usurped by any given number of persons undertaking a military expedition.
1477. The status of a belligerent can be denied to any volun-
teer corps, even waging war in the interest of the State and mili-
tarily organized, when they not only fail to wear any fixed dis-
tinctive emblem recognizable at a distance, but moreover endeavor
by deceit and artifice to conceal the fact that they are soldiers
in order to wage an unfair war.
PERSONS ATTACHED TO THE SERVICE OF THE ARMY
1478. The armed forces of the belligerent parties may consist of
combatants and non-combatants.
In the case of capture by the enemy, both have a right to be treated
as prisoners of war.
Article 3 of the annex to The Hague Convention of October 18, 1907, 4th
convention of the General Act.
1479. All persons attached to the service of troops, although
not participating in the operations of war as combatants shall
have the same status as belligerents and be subject to the laws
of war.
The application of these laws shall be extended to persons who,
although not among the combatants and not attached to the serv-
ice of the army, are in the area of war for a purpose not incon-
sistent with the purpose of war.
1480. In like manner, the right to be regarded as belligerents
may be claimed by all persons engaged as couriers, messengers or
bearers of official dispatches, and by those charged with main-
taining communications between the different divisions of the
army or navy, in whatsoever manner they perform their respec-
tive duties; likewise by those who make use of balloons or similar
contrivances, provided, however, they are not in a position to be
considered as spies.
TITLE VIII
ACTS OF HOSTILITY IN WAR ON LAND
LAWFUL AND UNLAWFUL ACTS
.
1481. Belligerents have not an unlimited right with respect
to the means to be employed to injure the enemy.
Article 22 of the Regulations respecting the laws and customs of war on
land, annexed to the Convention of October 18, 1907, the 4th of the General
Act of The Hague.
N. B.—These will always be cited as The Hague Regulations.
1482. Hostile acts calculated to attain the aims of war may be
considered lawful if they weaken the enemy so as to compel him
to capitulate, provided that such acts are not committed without
necessity therefor and do not exceed the military object in view.
War must not tend to the extermination, destruction and annihilation of
the enemy, but to his defeat in order to compel him to surrender.
Any hostile act not required by the object of war must be regarded as un-
justifiable; any act exceeding the object in view is to be deemed contrary to
the laws of humanity.
1483. Any hostile act shall be deemed unlawful which increases
unnecessarily and without reason the sufferings of the enemy, as
shall, also, any act which may be regarded as barbarous, cruel,
unfair and treacherous.
1484. Any act of unnecessary destruction committed without
an order of a superior authority shall be deemed unlawful, as
well as acts of useless destruction authorized and ordered but
which cannot be justified by the necessities of the defense, or
which may be committed in excess of military needs.
The principles laid down in the preceding rules were solemnly recognized
in the Convention signed at St. Petersburg on December 11, 1868, to which
the majority of civilized states have adhered. It was concluded with the
object of prohibiting the use, in time of war, of explosive projectiles weighing
less than 400 grams or charged with inflammable or fulminating material.
In the preamble to this Convention the just principles which must inspire
hostile acts in wars between nations are clearly stated as follows:
554
ACTS OF HOSTILITY IN WAR ON LAND
555
Whereas, the progress of civilization should, so far as possible, result in
an attenuation of the horrors of war;
'Whereas, the sole legitimate aim which states ought to entertain during
war is the weakening of the military forces of the enemy;
Whereas, for this purpose, it is sufficient to place hors de combat the greatest
possible number of men;
“Whereas, this object would be exceeded by the employment of arms which
would uselessly aggravate the sufferings of men placed hors de combat, or
would render their death inevitable;
"Whereas, the employment of such arms would therefore be contrary to
the laws of humanity. ..."
The military penal code of Italy (art. 252) provides the penalty of death
by degradation for any person who, without superior orders and constraint
impelled by the necessity of defense, shall set fire to a house or other building
in the enemy's country.
ACTS PROHIBITED ACCORDING TO THE LAWS OF HONOR AND CUSTOMS
OF WAR OF CIVILIZED STATES
1485. Besides the hostile acts contemplated in special con-
ventions concluded between them, we should consider as abso-
lutely prohibited in wars between civilized states, those acts
which were specifically prohibited by the states represented at
the Hague Conference of 1907, namely:
(a) To employ poison or poisoned weapons;
(6) To kill or wound treacherously any individuals belonging to
the hostile nation or army;
(c) To kill or wound an enemy who, having laid down his arms,
or having no longer means of defense, has surrendered at discretion;
(d) To declare that no quarter will be given;
(e) To employ arms, projectiles, or materials calculated to cause
unnecessary suffering;
(f) To make improper use of a flag of truce, of the national flag,
or of the military insignia and uniform of the enemy, as well as the
distinctive badges of the Geneva Convention;
(g) To destroy or seize the enemy's property, unless such destruc-
tion or seizure be imperatively demanded by the necessities of war,
(h) To declare abolished, suspended, or inadmissible in a court of
law the rights and actions of the nationals of the hostile party.
A belligerent is likewise forbidden to compel the nationals of the
hostile party to take part in the operations of war directed against
their own country, even if they were in the belligerent service before
the commencement of the war.
556
INTERNATIONAL LAW CODIFIED
Such is the text of article 23 of The Hague Regulations.
In rule 1214 of our 2d and 3d editions, sub-head (d), which we had advo-
cated, was formulated as follows:
(c) Refusing quarter to a garrison, even if it should be done in execution
of a previous declaration that no quarter would be given.
We thought, and we still think, that the unlawful act must consist in the
refusal to give quarter, as the declaration might be made for the purpose of
intimidation.
Sub-head (e) was thus formulated in the same rule 1214:
(e) The use, in the armed conflict, of projectiles and materials calculated
to cause unnecessary damage and wounds painful and difficult to heal.
The subhead thus formulated seems to us more comprehensible and humani-
tarian.
1486. To massacre persons who surrender at discretion or a
garrison offering to capitulate cannot be justified either on the
ground of reprisals, or by reason of the difficulty of insuring the
custody and providing for the maintenance of the prisoners of
war thus placed in the power of the hostile army.
The right of life and death is the belligerent's as against the enemy who
attacks him with arms and is committing hostile acts. Any killing inflicted
while the fight is in progress may be justifiable, if its purpose is to paralyze
the enemy's forces and thus induce the enemy to surrender. The combatant
who does not resist, but surrenders unconditionally, ceases to be an enemy
and can never be killed; his massacre could not be justified on the ground of
the difficulty of caring for prisoners of war, or on the ground of retaliation for
a similar massacre of prisoners of war by the opposing forces. Refusal to
give quarter to a garrison which offers to surrender and the massacre of sol-
diers who have laid down their arms can never constitute legitimate warfare.
Murdering a man is always a crime.
The Italian army regulations of the 26th of November, 1882, provide as
follows:
“Art. 718.--Any act whatever of cruelty and barbarity is absolutely pro-
hibited, and shall be severely punished. Respect and protection are due to
the inhabitants remaining neutral, both in their persons and in their property.
"Art. 719.—Whoever abuses or despoils enemies unarmed, sick, wounded,
or dead; whoever sets on fire, destroys or damages without necessity the prop-
erty of others, is liable to the penalties provided by the Code.”
These articles are reproduced verbatim in the regulations of September 16,
1896, at present in force.
RIGHTS WHILE ENGAGED IN FIGHTING
1487. A belligerent may attack, fire upon and kill any individual
who takes an active part in the war, so long as he resists with
arms or commits hostile acts.
1488. A belligerent has no right to direct his attack against
ACTS OF HOSTILITY IN WAR ON LAND
557
individuals who accompany the troops and take no active part
in the fighting. Nevertheless, the killing of such persons in the
heat of battle must be regarded as the consequence of the regular
exercise of the rights of war.
RIGHTS OF PERSONS WHO FALL INTO THE POWER OF THE ENEMY
1489. Any man committing hostile acts by taking an active
part in the war, and having the status of or assimilated to a bel-
ligerent (cf. rules 1455 et seq.) shall be treated as a prisoner of war
provided he has laid down his arms, or offered to surrender, or
otherwise shall have fallen into the power of the enemy.
The same right appertains to individuals belonging to a troop
or to a garrison which shall have collectively capitulated or sur-
rendered unconditionally.
1490. The fact that a commander or army chief should declare
his unwillingness to recognize as belligerents those who are prop-
erly entitled to claim that status, could not legally justify his
refusal to apply the laws of war to persons who have fallen into
his power, or deprive them of the rights which, by customary
international law, they may properly claim as prisoners of war.
1491. Belligerents must not exercise the rights of war against
wounded enemies who are in military hospitals or ambulances
for the purpose of receiving the necessary care and treatment,
but must observe the rules stipulated in the Geneva Convention
of August 22, 1864, concerning the care of the sick and wounded
in time of war.
1
SPIES
1492. Any person, whether belonging to the enemy's army or
not, who clandestinely, secretly, under false pretenses or in dis-
guise, enters the hostile lines and tries to procure information
useful for military purposes shall be deemed a spy.
1493. A soldier not in disguise cannot be regarded as a spy even
though he has secretly entered the zone of operations of the hostile
army in order to secure information useful to combat the opposing
forces. In like manner, a non-military person, charged with the
1 We reproduce without change the rules laid down in the second, third and
fourth editions of this work.
558
INTERNATIONAL LAW CODIFIED
transmission of dispatches intended for the army of his country,
who openly fulfills his mission, cannot be regarded as a spy.
1494. Neither are those persons to be regarded as spies who,
as soldiers or civilians, have endeavored, by means of a balloon,
to maintain communications between the various sections of an
army or of a country, or who have approached the zone of opera-
tions of the hostile army for the purpose of obtaining useful in-
formation.
In the case of individuals who make use of a balloon in order to approach
the enemy's camp or to obtain information, it cannot be held that they act
clandestinely, under false pretenses or under disguise so as to be characterized
as spies. The belligerent, no doubt, has the right to attack and kill them; but
if they fall into the enemy's power, they will have to be treated as prisoners
of war and not as spies, for they will have performed a legitimate act of war-
fare in thus openly attempting to get useful information.
1495. Municipal law may assimilate to espionage and punish as
such, or even more severely, the crime of a citizen or of a foreigner
residing in the territory of the state who shall impart information
to the enemy or maintain relations with him for the purpose of
communicating information useful for his operations; and what-
ever the nature of these facts and regardless of the severity of the
punishment inflicted, the provisions of the local law as to juris-
diction, procedure and punishment may, without condition, be
applied to any person residing within the state.
RIGHTS OF THE BELLIGERENTS RESPECTING SPIES
1496. It shall not be considered contrary to the usages of war
nor to the military honor of the commander of an army to make
use of secret agents or spies in order to obtain information which
he may need.
1497. A belligerent has the right to inflict severe punishment,
according to martial law, upon any person who may be considered
a spy, provided that such person falls into his power while caught
in the act of spying. The belligerent is bound, however, to re-
mand the offender to a court which, under martial law, is com-
petent to try and sentence him.
The rules concerning spies, established in common accord by the states
represented at The Hague, are as follows (4th Convention, Annex):
ART. 29.-A person can only be considered a spy when, acting clandestinely
or under false pretenses, he obtains or endeavors to obtain information in the zone
ACTS OF HOSTILITY IN WAR ON LAND
559
of operations of a belligerent, with the intention of communicating it to the hostile
party.
Thus, soldiers not wearing a disguise who have penetrated into the zone of
operations of the hostile army, are not considered spies. Similarly, the following
are not considered spies: Soldiers and civilians, carrying out their mission openly,
intrusted with delivery of dispatches intended either for their own army or for the
enemy's army. To this class belong likewise persons sent in balloons for the pur-
pose of carrying dispatches and, generally, of maintaining communications be-
tween the different parts of an army or a territory.
ART. 30.-A spy taken in the act shall not be punished without previous trial.
ART. 31.-A spy who, after rejoining the army to which he belongs, is subse-
quently captured by the enemy, is treated as a prisoner of war, and incurs no
responsibility for his previous acts of espionage.
GUIDES
1498. A belligerent has no right to compel the citizens of the
hostile country, who fall into his power, to act as guides for him
or to impart to him the information he needs. He shall have
the right, however, to punish those who knowingly have volun-
teered their services for the purpose of misleading him.
This rule may be considered as based upon the last paragraph of article 23
of The Hague Regulations, which formally forbids the belligerent to force
the citizens of the hostile state to participate in the operations of war directed
against their country. Supra, rule 1485.
1499. A belligerent state shall have the right to punish, as
traitors to their country, such of its citizens as voluntarily shall
have acted as guides to the enemy; but it would be unfair and
unjust to punish those who, under duress of the enemy by force,
violence or threat of death, have done that which, under the cir-
cumstances of the case, they were unable to refuse to do while in
the enemy's power.
FLAGS OF TRUCE
1
1500. A person is regarded as bearing a flag of truce if he has
been authorized by the belligerent to enter into communication
with the enemy and he appears as such for the purpose of treating
and negotiating during the course of the hostilities, making him-
self known by means of a distinctive sign, a white flag, recognized
under the usages of war.
1 We reproduce the rules proposed in the second, third and fourth editions.
560
INTERNATIONAL LAW CODIFIED
Persons who accompany him, such as flag-bearer, trumpeter or
drummer, must be plainly identified with the flag of truce.
1501. The military commander of the enemy is not in all cases
and under all circumstances obliged to receive the flag of truce,
or to stop firing when the enemy sends it to him for the purpose
of negotiating during the course of the hostilities. It is optional
with him to decide whether or not the persons presenting the flag
of truce shall be received.
1502. It is always contrary to military honor to fire at the bearer
of a flag of truce approaching the zone of action, even when the
commander is not inclined to receive him or later refuses to admit
him.
If, however, the commander should refuse to receive the bearer
of a flag of truce by expressly declaring his unwillingness to nego-
tiate with the enemy's representative within a certain time, and
if, after such refusal and due notice, the flag of truce should again
be presented, its bearer could be treated as an enemy who,
in bad faith, attempts to approach the lines of the other
belligerent.
1503. A commander consenting to receive a flag of truce may
take all precautionary steps that he may deem necessary to pre-
vent the flag-bearer from taking advantage of his stay in the lines,
even to the extent of temporarily detaining the envoy if, in the
opinion of the commander, he was able, even involuntarily and
in good faith, to ascertain something which it would be to the
commander's prejudice to have the enemy know.
1504. The bearer of a flag of truce who should fail to respect
the conditions imposed for its reception or who, taking undue
advantage of his position, should surreptitiously procure or at-
tempt to procure information, would thereby lose all right of
immunity and could be declared a prisoner of war. Indeed, if it
should clearly appear from the circumstances that the envoy has
taken undue advantage of his position and committed an act of
treachery, he could be regarded as a spy and summarily punished
as such.
1505. The bearer of a flag of truce should always carry out his
mission scrupulously and honestly. It shall be deemed abso-
lutely contrary to military honor to take improper advantage
of his privileged position.
ACTS OF HOSTILITY IN WAR ON LAND
561
The rules respecting flags of truce adopted by the states represented at
The Hague are as follows:
ART. 32.-A person is regarded as bearing a flag of truce who has been au-
thorized by one of the belligerents to enter into communication with the other, and
who advances bearing a white flag. He has a right to inviolability, as well as the
trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany
him.
ART. 33.—The commander to whom a flag of truce is sent is not in all cases
obliged to receive it.
He may take all the necessary steps to prevent the envoy taking advantage of
his mission to obtain information.
In case of abuse, he has the right to detain the envoy temporarily.
ART. 34.--The envoy loses his right of inviolability if it is proved in clear
and incontestable manner that he has taken advantage of his privileged position
to provoke or commit an act of treachery.
RIGHTS OF THE BELLIGERENTS AGAINST PERSONS NOT OF THE ARMY
1506. Persons and bands who, while not belonging to the army
and not meeting the conditions required to be considered as bel-
ligerents, accomplish during the war acts of hostility, undertake
marauding expeditions, destroy property, or maltreat the enemy's
soldiers, have no right whatever to be treated as public enemies,
and cannot invoke the application of the laws governing com-
batants. If they fall into the power of either belligerent, they are
subject to the criminal laws and may be punished as felons, plun-
derers or pirates, and cannot claim any of the privileges of prisoners
of war.
1507. All nationals of the hostile state, who cannot be deemed
public enemies and do not commit acts of hostility, must be con-
sidered as peaceful citizens and can, during the war, continue
freely to exercise their rights and enjoy their property under the
protection of international law.
The belligerents are not permitted to apply the laws of war to
or treat as enemies the citizens of the opposing state who are in
their country, or even in the zone of military operations, when they
do not take any direct or indirect part in the war, but continue to
carry on their ordinary callings as in time of peace.
JOURNALISTS AND CORRESPONDENTS
1508. No journalist or newspaper correspondent can be per-
mitted to follow armies without special authorization of the com-
562
INTERNATIONAL LAW CODIFIED
mander-in-chief, who may prescribe such conditions and regula-
tions in the case as he may deem necessary.
1509. The commander of the belligerent army may enforce any
measures that he may deem necessary to control the news service
of journalists, for the purpose of preventing them, through lack
of discretion, from jeopardizing the success of the military opera-
tions and movements.
1510. Any person wishing to avail himself of this authorization
to follow the belligerent armies, must state his name and that
of the newspaper or news agency he represents, and give his
word of honor that he will send out communications only in
strict compliance with the conditions imposed by the commander-
in-chief.
Any violation of the regulations prescribed will justify the
withdrawal of the authorization and even, under certain circum-
stances, the imprisonment of the journalist or correspondent for
such length of time as the commander may deem adequate, and
during such imprisonment the journalist or correspondent shall
be treated as a prisoner of war.
1511. As a rule, ciphered correspondence, as well as direct and
uncontrolled correspondence, shall be considered prohibited, in
case the commander shall have subjected such correspondence to
the previous revision of an officer entrusted with power to
censor or revise all communications liable to jeopardize military
interests.
1512. Any newspaper correspondent may be punished, if it is
proved that he is spreading false news or is taking advantage of
the authorization he has obtained, by publishing in the press in-
formation gained and communicated without previously sub-
mitting it to the approval of the official censor.
He may even be treated as a spy, if it appears from the circum-
stances that, under the guise of a newspaper correspondent, he has
endeavored clandestinely to obtain news and information for the
purpose of favoring the military operations of the enemy, and has
divulged information thus obtained.
ACTS OF HOSTILITY IN WAR ON LAND
563
DESERTERS
1513. Each commander of the belligerent armies shall have the
right, without violating the law of military honor, to welcome
enemy deserters.
It would, however, be contrary to the laws of honor to resort
to corruption, dishonest actions and immoral means for the pur-
pose of inciting desertion and rebellion. The use of such means
ought to constitute a criminal offense.
1514. Each commander of the hostile armies may apply the
laws against deserters to those who, after desertion, enter the
service of the enemy and are later captured in the course of the
operations of war, even though, when captured, they constitute
part of a body of the enemy which surrendered and had the right
to demand the application of the laws governing prisoners of war.
TITLE IX
MILITARY OPERATIONS DURING WAR ON LAND
LAWFUL MEANS OF ATTACK AND DEFENSE
1515. Belligerents may resort to all means of attack or defense
which, according to military science, may be deemed effective for
the purpose of weakening, paralyzing or destroying the enemy's
military forces.
They may undertake any military operation calculated to attain
the object of war so as to compel the enemy to acknowledge his
defeat.
SIEGE 1
1516. It shall be deemed lawful in time of war to lay siege to any
fortified position, or to any position whatever, if it offers resistance,
for the purpose of cutting off all communications and of forcing its
defenders to surrender through dire want of food, ammunition or
other needful supplies.
1517. Investment of a place executed by means of a siege or
blockade is regarded as a lawful means of attack between belliger-
ents, even when resorted to for the purpose of occupying an un-
fortified position, whether the resistance comes from the troops or
from the inhabitants.
1518. The siege must be effective. It will be regarded as such
when the place is invested by the establishment around it of a
cordon of troops and by the occupation of positions calculated to
prevent any communication.
1519. A commander wishing to lay siege to a fortress or to a
city must make his intention known through a public proclama-
tion. Once this formality has been observed, any act of private
persons, accomplished with a view to maintaining communica-
1 We reproduce the rules proposed in the second, third and fourth editions
respecting siege and bombardment.
564
MILITARY OPERATIONS DURING WAR ON LAND
565
tions with the besieged city or fortress and especially for the pur-
pose of supplying the inhabitants with food and supplies designed
to prolong their resistance, shall be regarded as an act of hostility.
RIGHTS RESPECTING PERSONS IN CASE OF SIEGE
1520. The commanders of besieged fortresses must exercise
their powers in conformity with the military law of their country
and provide for the necessities of defense and resistance. It shall
be deemed one of their rights to order all the inhabitants who
happen to be in the stronghold and have not sufficient means
of subsistence, to leave it before the siege begins. These com-
manders shall even have the right to resort to force to compel such
inhabitants to leave, and also the right to expel, without any
formality, all foreigners and suspected persons.
1521. After the proclamation of the siege and the investment of
the place, it shall be deemed contrary to the laws of war to order
the departure of peaceful citizens who happen to be in the besieged
place.
1522. The commander of the army which is preparing for the
siege shall have no right to prevent peaceful citizens desirous of
leaving the besieged place or who, in anticipation of the siege, may
have been expelled by the enemy commander, from freely depart-
ing from the zone of military operations. But if, after the siege
has been declared and effected, the commander of the place, in
order to prolong resistance and reduce the consumption of the
limited supply of stores, has compelled all persons not engaged in
defending the garrison to leave the city, it would be proper for the
commander of the besieging army to make use of the least rigorous
means to force the expelled persons to re-enter the besieged place
and thereby curtail resistance.
In such a case, it should be considered an act contrary to the
laws of war for the commander of the besieged place to refuse to
the peaceful inhabitants expelled the privilege of re-entering the
city, thus exposing them to serious and inevitable dangers.
1523. Should hostile prisoners of war happen to be in the be-
sieged place, the commander would have the absolute right of
expelling them even after the siege had commenced, if he deemed
such action in the interest of prolonged resistance.
566
INTERNATIONAL LAW CODIFIED
BOMBARDMENT
1524. Bombardment may be resorted to only in time of war as a
direct means of obtaining the surrender of a fortress or of a fortified
place, or as an auxiliary means in the operation of a blockade or
siege.
This method of attack shall not be permitted against cities or
thickly populated communities which are not defended and for-
tified.
Notifying a bombardment, in the case contemplated in the second part of
the rule, must be deemed an obligatory formality indispensable for allowing
peaceful citizens to provide, so far as possible, for the protection of their per-
sons and property. It may also be considered as an effective measure toward
coercing the commander to surrender, in order not to expose the lives and
property of peaceful citizens to grave and inevitable dangers.
1525. The commander shall have the right to lay siege to and
bombard, without formality, an isolated fortress which is defended
by the enemy; but if such fortress is attached to a city or a place
inhabited by a considerable number of peaceful citizens, he shall be
obliged, before commencing the bombardment, to give notice
thereof to the hostile authorities, so as to restrict this means of
attack to the object in view.
1626. Reasonable precautions shall be taken to direct the bom-
bardment against fortified points and, so far as practicable, to-
ward sparing private property, public buildings dedicated to
charitable purposes, science and religion, and military hospitals,
provided always that these buildings are not at the same time
being used for military purposes.
The Italian army regulations of 1882, provide as follows:
“ART. 705.—The use of arms is prohibited against enemy hospitals and
ambulances and against the personnel thereof, whenever they are performing
their special duties and bear the distinctive emblēms established by the Geneva
Convention. (For hospitals and ambulances, white flag with red cross, for the
personnel, white brassard with red cross.)
1527. The throwing of explosives and incendiary projectiles
with a view to destroying the houses of the inhabitants and com-
mercial establishments shall not in any case be considered as a
lawful war operation, even if it should be done with the purpose of
terrorizing the inhabitants and inducing surrender of the place.
1528. The commander of a fortress or besieged city must in-
dicate the presence of public buildings which are not employed
MILITARY OPERATIONS DURING WAR ON LAND
567
for the purposes of defense, by means of plainly visible signs, which
signs must be made known to the besieger.
Moreover, it is always to be considered contrary to the laws of
war and to military honor in any way to employ, for purposes of
defense, any buildings which have been pointed out as being de-
voted to pacific use.
1529. Bombardment of a closed and defended city shall be
deemed an unfair means of attack, when practiced for the sole
purpose of causing damage and intimidating the inhabitants and
not for the direct purpose of compelling the enemy to surrender.
This should be true especially when the occupation of the defended
locality cannot have a serious influence on the ultimate issue of the
war, and when circumstances clearly indicate that the belligerent
has merely utilized the defense of the city as a pretext to bombard
it and thus injure and terrify the peaceful citizens therein.
We have reproduced without change the rules proposed in our first three
editions.
Those of The Hague Regulations respecting bombardment are as follows:
ART. 25.—The attack or bombardment, by whatever means, of towns, villages,
dwellings, or buildings which are undefended is prohibited.
ART. 26.—The officer in command of an attacking force must, before com-
mencing a bombardment, except in cases of assault, do all in his power to warn
the authorities.
ART. 27.-In sieges and bombardments, all necessary steps must be taken to
spare, as far as possible, buildings dedicated to religion, art, science, or charitable
purposes, historic monuments, hospitals, and places where the sick and wounded
are collected, provided that they are not being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places
by distinctive and visible signs, which shall be notified to the enemy beforehand.
DESTRUCTION AND FIRE
1530. It shall be permissible to devastate the property of the
enemy, to set on fire and voluntarily destroy his buildings and
things appurtenant thereto, whenever this may be necessary in
order to attain the objects of war; but devastation and wanton
destruction for the sole purpose of vengeance must be regarded as
unlawful and contrary to the laws of war.
It shall likewise be permissible to devastate and destroy private
property; but only when such action may be considered as required
by the actual necessities of war and military operations.
1531. In no case must the acts of destruction often imposed
568
INTERNATIONAL LAW CODIFIED
by the necessities of war and of military operations exceed, with-
out reason, the object intended to be attained.
1532. It shall be considered barbarous to destroy commercial
ports, public buildings dedicated to peaceful use, objects of science
and art and collections which are in private and public buildings,
even when the belligerent has taken possession of a city by assault,
siege, or bombardment.
1533. Commanders of armies must forbid and prevent any
unjustified act of barbarism and punish soldiers who, without
military necessity, set on fire, destroy or damage the dwellings of
private citizens of enemy nationality.
1534. It is the duty of governments to determine by law, which
acts directed against enemy property shall be deemed crimes in
time of war, and to provide for the punishment of those acts.
SACKING OR PILLAGE
1535. It shall always be deemed unlawful to authorize the pillage
or sacking of towns taken by assault, and as contrary to military
honor to encourage pillage and not to do everything possible
to prevent it.
1536. It shall not be regarded as pillage for soldiers, upon en-
tering a hostile country following an assault or a battle, to take,
without further formality, whatever they may need for their ur-
gent and immediate necessities.
The Italian legislation declares pillage absolutely unlawful and punishes
the offender. Article 275, of the Military Criminal Code of Italy, provides
in effect as follows:
‘Pillage is prohibited. The person who has ordered it or who, without
order, shall be guilty of it, shall be punished with death."
The Hague Regulations contain the following rule:
ART. 28.—The pillage of a town or place, even when taken by assault, is pro-
hibited.
STRATAGEMS AND TRICKS
1537. It shall be deemed permissible to combat the enemy by
means of stratagems and tricks, provided, however, that these
acts do not imply the violation of an engagement assumed or of the
laws of war and imply neither faithlessness nor treachery.
1538. It shall be deemed strictly prohibited even for the pur-
pose of stratagem, to make wrongful use:
MILITARY OPERATIONS DURING WAR ON LAND
569
(a) Of a flag of truce;
(6) Of the distinctive signs prescribed under the Geneva Con-
vention to protect certain places and persons from the laws of war.
(Cf. rule 1609 and the note under rule 1610.)
(c) of the flag, insignia, and uniform of the enemy;
(d) Of the distinctive signs used for places dedicated to peaceful
objects in case of bombardment. (Cf, rule 1528.)
Recourse to such means for the purpose of misleading the enemy
shall always be regarded as contrary to the laws of war and shall
in no case be justified by the pretext of stratagem.
1539. Whoever, unfairly and in bad faith, shall make use of
one of these means to deceive the enemy in the course of hostilities,
cannot invoke the protection of the laws of war if he should sub-
sequently fall into his power.
The Italian army regulations of November 26, 1882 and September 16,
1896, contain the following provision:
ART. 701.-There is no disgrace in losing a flag when it is defended to the
last extremity; it is, on the contrary, a disgraceful action to save it by hiding
it, with a few men as protection, from the enemy's sword and fire.
1
MILITARY OCCUPATION
1540. Military occupation is a legitimate war operation. It
may be considered as having taken place when a belligerent has
entered into possession of a more or less extensive portion of the
enemy's territory and has thus placed himself in a position of
actually exercising sovereign authority therein.
Military occupation, properly speaking, is neither invasion nor conquest.
Invasion is a war operation of a belligerent who, after having taken a portion
of the enemy's territory by assault, takes advantage of the positions occupied
by him for the necessities of war, by applying military law to the hostile coun-
try while there, making requisitions and imposing war contributions. Inva-
sion also gives to the belligerent certain rights to the territory taken. No
doubt the belligerent can take advantage of the conquered position and pursue
such course as may be necessary to retain possession thereof. Nevertheless,
so long as the struggle is proceeding with doubtful success and the belligerent
has displayed no intention to settle on the conquered territory, notwithstand-
ing the fact that the sovereign power of the invaded territory has been sup-
planted by that of the conquering belligerent, it cannot be said that military
occupation, properly speaking, has taken place.
1 We reprint here all the rules respecting military occupation as they are
formulated in our 2d, 3d and 4th editions.
570
INTERNATIONAL LAW CODIFIED
HOW OCCUPATION BECOMES EFFECTIVE
1641. Military occupation shall not be deemed effective so long
as the struggle continues against the inhabitants of the invaded
country, and so long as they shall not have ceased legitimate acts
of hostility in their efforts to defend it.
1542. Military occupation shall be regarded as effected by the
fact of taking possession of the hostile country by an occupying
army corps. It does not matter how the complete subjection of
the territory occupied was secured whether as a result of capitula-
tion or of the inability of the inhabitants to continue fighting,
thereby necessitating their submission to and recognition of hostile
authority.
IMMEDIATE CONSEQUENCES OF MILITARY OCCUPATION
1543. An effected occupation involves the actual submission of
the inhabitants of the occupied country to the authority of the oc-
cupant, and the incidental obligation on the part of said inhabitants
to recognize that their government, as constituted before it fell
into the power of the victor, is no longer qualified to exercise
public functions.
1544. The obligation imposed on the inhabitants of the occupied
country of considering their relations with the defeated sovereign
as temporarily suspended, and of recognizing the victor's authority
established in fact over all the territories militarily occupied, must
be considered as effective, independently of the victor's intention
to retain possession for a longer or shorter time of the occupied
territory.
1545. The occupying military authority shall take all neces-
sary steps to preserve order and exercise sovereign power in the
occupied territory, so as to insure the respect of persons and prop-
erty as well as the regular exercise and protection of all their
legal rights.
1546. Military authorities shall have the right to avail them-
selves of all possible advantages of the occupation, but shall be
bound to exercise the rights and duties of sovereignty within rea-
sonable limits, taking into account the necessities of war and the
very nature of military occupation.
{ l
1
MILITARY OPERATIONS DURING WAR ON LAND
571
In principle, military occupation deprives the enemy of the possession of
the occupied territory and substitutes therein the victor's exercise of the rights
of sovereignty. Yet, as this fact is subject to the eventualities of war and
can only become final through a treaty of peace and the cession of the territory
in question, the occupying sovereign must exercise his powers only within
the limits of actual necessity. Therefore, he shall have the right to do what
is at the moment essential to maintain himself in possession of the occupied
territory, to prevent and punish any attempt to hinder his government, to
compel the inhabitants to obey him and to insure public order. But he would
overstep the just limits imposed by the nature. of his authority if he should
assume to act as if he possessed absolute sovereignty over the occupied terri-
tory, e. g., if he should treat the inhabitants as his subjects, and consider oc-
cupation during war as a definitive conquest.
/
RIGHTS OF THE OCCUPANT RESPECTING PERSONS
1547. The occupant shall have the right to force all the inhabi-
tants to obey him, to compel them to recognize the status quo,
and to consider their relations of loyalty and subjection to the de-
feated sovereign as temporarily suspended; but he shall not have
the right to compel them to adopt an attitude of enmity toward
their former sovereign, nor shall he construe any sentiment of
patriotism on their part as an offense.
Cf. the last paragraph of article 23 of The Hague Regulations given under
rule 1485.
1548. Any invasion of individual liberty, any act of servility
imposed by force on the inhabitants of the occupied country, any
punishment of patriotic sentiment which does not manifest itself
in the form of hostile acts or demonstrations, shall be deemed
contrary to the laws of war.
1549. It would be unfair and arbitrary to require the oath of
allegiance of the judges and civil officials of the occupied country.
The occupying authority may divest public officials of their offices
and require of those who, owing to the necessities of the situation,
must continue in the exercise of their duties, their word of honor
that they will obey the government of occupation so long as the
victor shall remain in control of the occupied territory.
To impose the oath of allegiance, properly speaking, upon persons who are
compelled to submit to the necessities of war, while considering as still sub-
sisting the bonds which unite them to their fatherland, would not only be a
fallacious guaranty, but an act absolutely arbitrary and unfair on the part
of the victor, who would thus impose on officials the violation of their political
loyalty,
572
INTERNATIONAL LAW CODIFIED
1550. It shall be considered as absolutely contrary to the laws
of war and as a most grievous offense to compel the inhabitants of
the occupied territory to perform military service or commit hostile
acts against their country.
1551. The occupant shall have no right to forbid the inhabi-
tants of the occupied country to leave it at will; neither shall he
be permitted to consider the entire population as prisoners of war.
CIVIL OFFICIALS AND EMPLOYÉS
1552. Civil officials and employés of all kinds consenting to
continue in the performance of their respective duties must enjoy
the protection of the occupant. They shall always be subject to
dismissal and shall have the right to resign their respective offices.
They shall not be subject to disciplinary punishment except when
they fail to perform obligations freely assumed, and shall only be
liable to prosecution when they violate their duties.
ART. 45 of the Manual of the Institute of International Law, Les lois de
guerre sur terre adopted at Oxford, 1880.—Complete freedom of judgment and
action should in general be allowed as to keeping or suspending civil officials
and employés during occupation. All those who fulfill political functions
cannot, to be sure, be maintained in the exercise of their duties. As to all
others, their retention or dismissal must naturally depend on the influence
they may exercise, in the performance of their duties, on the necessities of war.
With respect to railroad employés, for example, when the importance of rail-
road service, from a military standpoint, is realized, dismissal of the national
personnel, who might cause considerable prejudice to the interests of the oc-
cupying belligerent, is justifiable. It must be deemed essential, however,
that the railroad service be not disorganized, in order not to impair the in-
terests of commerce and free circulation. It is necessary, moreover, to respect
the legal rights of the dismissed employés against the State, according to the
laws, and against the Railroad Company, according to contract, and to see
that they are indemnified at the conclusion of peace for the losses sustained
by reason of their suspension.
MEASURES OF SAFETY
1563. The military occupant of a territory has not only the right
to require of the inhabitants complete submission to his authority
and the right to punish any violation of that obligation; he has
likewise the right to prevent any attempt at such violation by
providing very severe punishments against any person making
MILITARY OPERATIONS DURING WAR ON LAND
573
or attempting to make an attack upon the established government
and the safety of the army of occupation.
It should, however, be considered contrary to the principles of
international justice to order summary executions or sentences of
death without regular judicial procedure, for the purpose of in-
spiring terror in the population.
1554. The inhabitants of the country militarily occupied must
recognize the authority of the government of occupation and re-
frain from any act likely, either directly or indirectly, to jeopardize
the safety of the army of occupation or to impair its actual inter-
ests.
CRIMINAL LAWS AND CONVICTIONS
1555. The military government shall have the right to apply
martial law in the occupied territory and also order such rigorous
measures as may be required by circumstances. It may proclaim
martial law and enforce any measure necessary to maintain its
authority and prevent an insurrection. It must, however, exer-
cise its authority without substantially violating the superior
principles of the penal law of war, so far as regards responsibility,
procedure, and trial.
The penal law of war likewise has its principles. It should be considered
contrary to justice to inflict the death penalty for any offense whatsoever
committed during military occupation, or to substitute collective responsi-
bility for individual responsibility. This is what would happen if, for instance,
communities were declared responsible for criminal offenses committed in
their jurisdiction, or if the execution of a sentence should be ordered against
any person suspected of an offense, without any semblance of trial.
1556. The various degrees of punishment inflicted may some-
times be necessarily severe owing to the degree of difficulty en-
countered by the sovereign occupant in retaining possession of the
territory.
One can never, however, justify arbitrary punishments inflicted
by the military authority without previous promulgation of an
official decree or ordinance providing such punishment for the for-
bidden act.
574
INTERNATIONAL LAW CODIFIED
PRIVILEGES OF THE OCCUPANT IN THE EXERCISE OF LEGISLATIVE
POWER
1
1567. The occupant is not permitted arbitrarily to repeal the
civil legislation of the conquered country, or to alter the public
law in force. To exercise such power would be a perversion of his
rightful authority and would be regarded as an unwarranted abuse
of his functions, unless it can be clearly justified by the necessities
of war.
He must,
1558. He must not, during the military occupation, alter the
prevailing laws relating to judicial organization, jurisdiction and
competence, save with respect to cases which must be submitted
to special courts on account of their nature or military necessity,
and cases within the jurisdiction of courts-martial.
with these exceptions, maintain the status quo, allowing ordinary
courts to continue their regular functions.
1559. The occupant must provide for the regular administration
of civil justice, and protect the status of persons and family rela-
tions, without modifying them in any way by general laws.
PUBLIC ADMINISTRATION
1560. It is the duty of the government of occupation to provide
for the public service and administration. For this purpose it
may request all employés whose functions have no political char-
acter, to continue in the performance of their duties. It has no
authority to compel them individually, but may consider as an
act of hostility the collective refusal of all the employés of the
public administration or of a branch of the public service to per-
form their duties.
1561. During military occupation, the exercise of any function
of sovereignty must be deemed regular and lawful, even as to con-
sequences affecting private relations. Contracts signed by the
government constituted by the army of occupation shall be valid,
as well as transfers of property regularly made in conformity with
the laws in force; and private persons shall be entitled to avail
themselves of the rights acquired through judgments pronounced
by courts of law during the occupation, provided such judgments
can be regarded as final and as having acquired the authority of
MILITARY OPERATIONS DURING WAR ON LAND
575
res judicata. The same shall apply to any other right acquired and
perfected under the laws promulgated and in force during the oc-
cupation.
RIGHTS OF THE OCCUPANT AS TO PROPERTY
1562. The military occupant shall have the unconditional right
to take possession of, and appropriate to his own use, all property
belonging to the State which he finds in the occupied territory.
He shall have not only the right to take possession of arms, depots
of munitions and supplies for the use of troops, and everything
seful in warfare, but also of transportation and railroad equip-
ment (locomotives, railroad material, ships, etc.), telegraph sys-
tems, building materials, etc., belonging to the enemy State.
He shall also have the right to take possession of the cash and
of the liquid assets which are strictly the property of the State,
whether this be in the public treasury or consist of claims of the
State against private persons, provided they are claims due or
becoming due during the period of occupation.
1563. The belligerent shall have no right to take possession of
public property devoted to peaceful objects, e. g., religion, charity
or education.
Such exempted property shall include the establishments and
property belonging to churches, hospitals, and charitable institu-
tions, those devoted to education, such as universities, academies,
observatories, museums of fine arts and all endowments of a
scientific or charitable character.
1564. The belligerent shall be permitted to enjoy all the ad-
vantages arising out of the temporary possession of all the prop-
erty belonging to the public domain, but shall have no right to
alienate such property, except when the alienation of a given
portion thereof shall be required by the urgent necessities of
war.
1565. The occupant must always deem private property in-
violable and not confiscate it under any pretext, and acknowledge
the same inviolability respecting municipal property. He shall
have the right to subject to forced expropriation only such prop-
erty of private persons which is likely to be required in the opera-
tions of war, subject, however, to the payment of a just indemnity,
576
INTERNATIONAL LAW CODIFIED
or to the reservation of such payment as may be provided by the
eventual treaty of peace.
He shall be able to levy contributions of war upon towns and
communes in conformity with the rules which govern such levies.
See, as to requisitions, The Hague Convention at the end of this Title.
RAILROADS AND TELEGRAPH LINES BELONGING TO PRIVATE PERSONS
1566. During the military occupation, it shall not only be per-
missible to the occupying belligerent to make use of the railroad
and telegraph material belonging to companies or to private
persons, that may be required in the prosecution of the war, but
he shall also be entitled to regulate with full freedom the manage-
ment of such railroads and telegraph lines, reserving the rights of
the companies or private persons in order that such rights may be
adjusted at the conclusion of peace. He shall have no right, how-
ever, to take possession of the cash which may happen to be in the
treasuries of companies. He shall be bound to organize the man-
agement and operation thereof in such manner as not unnecessa-
rily to impair the rights of the companies and employes, and effect-
ively to protect the interests of peaceful commerce.
RIGHT OF THE OCCUPANT AS TO TAXES
1567. During the military occupation, the government of the
occupant shall have the right to collect the taxes already estab-
lished by law in the manner and conformably to the usages in
force in the occupied country. Power to amend the fiscal legis-
lation or the system of levying taxes, and the privilege of intro-
ducing new taxes cannot wholly be denied to the occupant; but it
is advisable that he should not undertake any legislative changes
without necessity and that he should always exercise his sovereign
powers with great moderation.
A modification in the system of levying taxes during military occupation
might consist in subjecting towns to the payment of a single tax, leaving it
to the municipal administration to apportion it out among the taxpayers.
The preferable policy, however, is to make no changes either in the basis or
form of the tax system unless such modification is urgently required by the
necessities of war.
[See U. S. v. Rice, 4 Wheaton, 246; Mazatlan and Bluefield's cases, Moore's
MILITARY OPERATIONS DURING WAR ON LAND
577
Digest, I, 49 et seq.; Message of the President, For. Rel. 1900, xxiv; MacLeod
v. U.S. (1913), 229 U. S. 416, 429——Transl.]
PUBLIC SERVICES
1568. The military occupant must devote the moneys col-
lected by means of taxes to their natural and proper purposes,
namely, that of providing for the needs of the occupied country
and especially for public services, education, and public works.
The states represented at The Hague have settled in common accord the
rights of the military authority over hostile territory. See Section III of
the Regulations annexed to the fourth Convention. They have laid down the
following rules, which have obligatory legal force among these states.
RIGHT OF THE BELLIGERENT OVER THE TERRITORY OF THE HOSTILE
STATE
ART. 42.-Territory is considered occupied when it is actually placed under
the authority of the hostile army.
The occupation extends only to the territory where such authority has been es-
tablished and can be exercised.
ART. 43.-The authority of the legitimate power having in fact passed into
the hands of the occupant, the latter shall take all the measures in his power to
restore, and ensure, as far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the country.
ART. 44.—A belligerent is forbidden to force the inhabitants of territory oc-
cupied by it to furnish information about the army of the other belligerent, or
about its means of defense.
ART. 45.--It is forbidden to compel the inhabitants of occupied territory to
swear allegiance to the hostile power.
ART. 46.–Family honor and rights, the lives of persons, and private property,
as well as religious convictions and practice, must be respected.
ART. 47.-Pillage is formally forbidden.
ART. 48.---If, in the territory occupied, the occupant collects the taxes, dues,
and tolls imposed for the benefit of the state, he shall do so, as far as is possible, in
accordance with the rules of assessment and incidence in force, and shall in con-
sequence be bound to defray the expenses of the administration of the occupied
territory to the same extent as the legitimate Government was so bound.
Money contributions, requisitions, contributions in kind
ART. 49.-If, in addition to the taxes mentioned in the above article, the oc-
cupant levies other money contributions in the occupied territory, this shall only
be for the needs of the army or of the administration of the territory in question.
ART. 50.—No general penalty, pecuniary or otherwise, shall be inflicted upon
the population on account of the acts of individuals for which they cannot be re-
garded as jointly and severally responsible,
578
INTERNATIONAL LAW CODIFIED
ART. 51.-No contribution shall be collected except under a written order, and
on the responsibility of a Commander-in-Chief. The collection of the said con-
tribution shall only be effected as far as possible in accordance with the rules of
assessment and incidence of the taxes in force. For every contribution a receipt
shall be given to the contributors.
ART. 52.--Requisitions in kind and services shall not be demanded from
municipalities or inhabitants except for the needs of the army of occupation.
They shall be in proportion to the resources of the country, and of such a nature
as not to involve the inhabitants in the obligation of taking part in military opera-
tions against their own country. Such requisitions and services shall only be de-
manded on the authority of the commander in the locality occupied. Contributions
in kind shall as far as possible be paid for in cash; if not, a receipt shall be given
and the payment of the amount due shall be made as soon as possible.
Rights over the property of the hostile state and of municipalities
Art. 53.-An army of occupation can only take possession of cash, funds,
and realizable securities which are strictly the property of the state, depôts of
arms, means of transport, stores and supplies, and, generally, all movable prop-
erty belonging to the state which may be used for military operations.
All appliances, whether on land, at sea, or in the air, adapted for the transmis-
sion of news, or for the transport of persons or things, exclusive of cases governed
by naval law, depôts of arms, and, generally, all kinds of ammunition of war,
may be seized, even if they belong to private individuals, but must be restored and
compensation fixed when peace is made.
ART. 54.–Submarine cables connecting an occupied territory with a neutral
territory shall not be seized or destroyed except in the case of absolute necessity.
They must likewise be restored and compensation fixed when peace is made.
ART. 55.--The occupying state shall be regarded only as administrator and
usufructuary of public buildings, real estate, forests, and agricultural estates
belonging to the hostile state, and situated in the occupied country. It must safe-
guard the capital of these properties, and administer them in accordance with
the rules of usufruct.
ART. 56.-The property of municipalities, that of institutions dedicated to
religion, charity and education, the arts and sciences, even when state property,
shall be treated as private property.
All seizure of, destruction or wilful damage done to institutions of this charac-
ter, historic monuments, works of art and science, is forbidden, and should be
made the subject of legal proceedings.
1
TITLE X
PRISONERS OF WAR. THE WOUNDED AND SICK
1569. Every individual is considered a prisoner of war who,
taking part in the war either as a combatant or non-combatant,
falls into the hands of the enemy in any manner whatever and is
captured.
Persons attached to the service of the army (sutlers, contractors,
etc.) or following it as journalists, reporters, etc., who fall into the
hands of the enemy must, if the latter deems it expedient to de-
tain them provisionally, be considered as prisoners of war.
1570. Any individual of the hostile army who lays down his
arms and surrenders has the right to be safe from any attack upon
his person and cannot either be wounded or killed; he is simply to
be declared a prisoner of war.
1571. Any one who is declared a prisoner of war must, as such,
be regarded as under the immediate control of the belligerent
sovereign and not under that of the person who made him prisoner
and who cannot, without violating military discipline, have any
right to set him free and much less to exact from him the payment
of any sum of money to buy his freedom.
1
DUTIES OF BELLIGERENTS TOWARDS PRISONERS
1572. Belligerents must treat prisoners of war with humanity
i We reprint the rules that we proposed in the 2d, 3rd and 4th editions
of the present work. They must be regarded as being founded upon the
“common” law established by civilized states, as sanctioned in the instruc-
tions given by several states to their armies and navies, in conformity with
the usages accepted in the wars of our time, in the Manual of the Institute of
International law, arts. 61 et seq., session of Oxford (1880), and in the numerous
works which have treated the question. Of course, these rules could in reality
only have compulsory legal force between states through their reciprocal
agreement. Such an agreement was reached by the states represented at
the Hague Conference which, among other matters, adopted rules concerning
prisoners of war. We present hereafter their agreement on this subject.
579
580
INTERNATIONAL LAW CODIFIED
and show them the regard which is due them by reason of their
rank and civil condition. They must, besides, see that military
commanders do not take any unfair advantage of their powers
and punish any act of their inferiors violative of the respect due
to prisoners.
1573. It must always be considered disgraceful and treacherous
to deprive prisoners of their personal belongings (jewels, watches
and the like), even if such objects are of small value.
Nevertheless, the commander always has the right to order
that all personal belongings of prisoners be deposited by them
to be sequestered during their captivity. It is only permissible
to appropriate arms, horses and other objects pertaining to
warfare
1574. The capturing government shall defray the expenses of
caring for prisoners of war, giving them lodging and rations ac-
cording to their station and ranks, taking as a basis the salary
of its own officers and soldiers, subject to the subsequent settle-
ment in the treaty of peace of the respective expenses of main-
taining prisoners.
1575. Lack of resources for the maintenance of prisoners of war
cannot justify the conduct of a government which, in violation of
the rules of “common” law, considers itself authorized to refuse
to give quarter to soldiers who would surrender or to order the
massacre of those whom it could not support as prisoners.
1576. The belligerent shall always be able to safeguard his
rights and interests, either by making it impossible for prisoners
to participate in the war operations, or by securing their pledged
word not to take any further active part in the war, and then by
punishing those who, having been set free, have been recaptured
with arms in violation of their parole.
There is no doubt that the hostile soldier who surrenders at discretion is
entitled to his life and that the belligerent cannot violate this right of man
without committing a veritable crime. We absolutely deny, therefore, for
any cause, however peremptory it may be, the right of a belligerent to de-
prive a soldier who has laid down his arms of his life.
We recognize only his right to punish a prisoner set free on parole not
to take any further part in the war, whom he has recaptured bearing arms.
The military criminal code of Italy punishes with death a hostile officer
who, set free on parole, has been recaptured bearing arms (art. 292).
The French code of military justice (art. 204, § 2), contains a similar provi-
sion.
PRISONERS OF WAR
581
RIGHTS RESPECTING PRISONERS WAR
1577. The commanding officer of an army, who has prisoners of
war in his power, may order that they be disarmed, making no
exception for officers of all ranks, to whom, however, it is proper
to restore their swords provided they have surrendered them
in token of submission, and on condition of their remaining dis-
armed during their captivity.
1578. The government in whose power prisoners happen to be
may employ them in useful labor, taking into account their re-
spective rank and social status. In no case is it permissible to
employ them in building fortresses or any work of defense even in
a place far removed from the seat of war, whenever such works
might be used in the operations of the war.
1579. A belligerent may, with respect to prisoners of war he does
not wish to set free, take the necessary steps towards ensuring
their custody and preventing their escape. He may intern them
and confine under detention those he deems most necessary.
1580. Prisoners of war may be subjected, in principle, to the
military laws and regulations in force in the country where they
are detained; any act of insubordination or any attempt at revolt
or escape may be punished under such laws and regulations.
1581. A prisoner attempting to escape is subject to disciplinary
penalties. Recourse to armed force, as in warfare, is likewise
permissible to arrest and capture him while in flight; but his escape
cannot be regarded as a crime so as to subject to the criminal law
a prisoner who has succeeded in escaping or has attempted to do so.
should he again fall into the hands of the enemy or be captured in
the attempt to escape.
1582. Plotting on the part of prisoners to recover their liberty
and to employ the means likely to realize that end is liable to pun-
ishment as a military offense. Any act of resistance to the author-
ities entrusted with their custody shall likewise be considered as
an act of rebellion and punished more or less severely, according
to circumstances, and in serious cases even with the death penalty.
582
INTERNATIONAL LAW CODIFIED
CONVENTIONS RESPECTING THE EXCHANGE AND RELEASE OF
PRISONERS
1583. Exchange of prisoners between belligerents shall be
effected as they may deem most convenient. If one of them de-
clares his wish to release them on parole, he shall have no right to
demand the same treatment, or the acceptance of an offer of ex-
change, from his adversary.
1584. When the exchange of prisoners or their release on parole,
or the conditions respecting their maintenance have been the sub-
ject of a special agreement between the belligerents, it is neces-
sary in determining the scope and execution of the convention to
refer to the rules respecting conventions and agreements concluded
in time of war.
1585. If a belligerent has accepted the offer of the enemy as to
the exchange of prisoners and the conditions of the exchange have
not been fixed, it ought to take place man for man, rank for rank,
wounded for wounded, and under the same conditions on both
sides.
1586. A belligerent shall have the right to release prisoners who
are in his power, by imposing on the enemy the condition of ex-
changing a certain quantity of ammunition, stores and material
necessary for the army; but it shall never be permissible to enter
into an agreement with the prisoner himself for the purchase of
his liberty.
PAROLE OF PRISONERS
1587. A belligerent cannot compel prisoners to give their word
to comply with all the conditions which he imposes as the price
of freedom.
A prisoner who has given a promise, contrary to military honor,
which was imposed on him as a condition of his freedom, shall
not be bound to keep his word. Nor shall the prisoner be con-
strained to keep his promise when, unable by the laws of his coun-
try to engage on honor to comply with the conditions which were
submitted to him for his freedom and having so declared, the bellig-
erent shall, notwithstanding, have imposed these conditions on him
and obliged him to give his word of honor.
PRISONERS OF WAR
583
1588. The word of honor given on the battlefield while the
battle is in progress, has no value. Neither is the word of honor
valid, given when the fight is over, by a military commander in
the name of a whole army corps, which would on this simple dec-
laration be set at liberty.
1689. When prisoners have been released on parole, the govern-
ment to which they belong must respect their parole and not im-
pose on them any service conflicting with the obligation assumed.
Moreover, soldiers are bound to conform to the laws of their
country when they assume obligations and give their word of honor
to comply therewith.
1590. We must particularly condemn as dishonest and dis-
honorable the act of a government in compelling prisoners to serve
against the enemy who has released them or against his allies,
during the progress of the war in which the obligation of honor
was assumed.
We cannot include in this category the act of a government
which imposes on prisoners who have been given their freedom
the obligation to perform active public duties at home or in the
administrative services of the army.
The states represented at The Hague have established in common accord
the following conventional rules as regards the treatment of prisoners of war.
They are part of the 4th convention of the General Act of October 18, 1907,
which was actually signed on June 30, 1908. They read as follows (Annex
to the Convention):
ART. 4.–Prisoners of war are in the power of the hostile Government, but not
of the individuals or corps who capture them.
They must be humanely treated.
All their personal belongings, except arms, horses and military papers, remain
their property.
Art. 5.—Prisoners of war may be interned in a town, fortress, camp or other
place, and bound not to go beyond certain fixed limits; but they cannot be confined
except as an indispensable measure of safety and only while the circumstances
which necessitate the measure continue to exist.
ART. 6.-The state may utilize the labor of prisoners of war according to their
rank and aptitude, officers excepted. The tasks shall not be excessive and shall
have no connection with the operations of the war.
Prisoners may be authorized to work for the public service, for private persons
or on their own account.
Work done for the State is paid at the rates in force for work of a similar kind
done by soldiers of the national army, or, if there are none in force, at a rate ac-
cording to the work executed.
When the work is for other branches of the public service or for private persons
the conditions are settled in agreement with the military authorities.
The wages of the prisoners shall go towards improving their position, and the
584
INTERNATIONAL LAW CODIFIED
balance shall be paid them on their release, after deducting the cost of their main-
tenance.
ART. 7.—The Government into whose hands prisoners of war have fallen is
charged with their maintenance.
In the absence of a special agreement between the belligerents, prisoners of war
shall be treated as regards board, lodging and clothing on the same footing as the
troops of the Government who captured them.
ART. 8.-Prisoners of war shall be subject to the laws, regulations, and orders
in force in the army of the state in whose power they are. Any act of insubordina-
tion justifies the adoption towards them of such measures of severity as may be
considered necessary.
Escaped prisoners who are retaken before being able to rejoin their own army
or before leaving the territory occupied by the army which captured them are liable
to disciplinary punishment.
Prisoners who, after succeeding in escaping, are again taken prisoners are not
liable to any punishment on account of the previous flight.
ART. 9.—Every prisoner is bound to give, if he is questioned on the subject,
his true name and rank, and if he infringes this rule, he is liable to have the ad-
vantages given to prisoners of his class curtailed.
ART. 10.-Prisoners of war may be set at liberty on parole if the laws of their
country allow, and, in such cases, they are bound, on their personal honor, scrupu-
lously to fulfil, both towards their own Government and the Government by whom
they were made prisoners, the engagements they have contracted.
In such cases their own Government is bound neither to require of nor accept
from them any service incompatible with the parole given.
Art. 11.--A prisoner of war cannot be compelled to accept his liberty on parole;
similarly the hostile Government is not obliged to accede to the request of the prisoner
to be set at liberty on parole.
ART. 12.-Prisoners of war liberated on parole and recaptured bearing arms
against the Government to whom they had pledged their honor, or against the allies
of that Government, forfeit their right to be treated as prisoners of war,
and can
be brought before the courts.
ART. 13.-Individuals who follow an army without directly belonging to it,
such as newspaper correspondents and reporters, sutlers and contractors, who
fall into the enemy's hands and whom the latter thinks expedient to detain are en-
titled to be treated as prisoners of war, provided they are in possession of
a certificate from the military authorities of the army which they were accom-
panying.
Art. 14.-An inquiry office for prisoners of war is instituted on the com-
mencement of hostilities in each of the belligerent States, and, when necessary, in
neutral countries which have received belligerents in their territory. It is the
function of this office to reply to all inquiries about the prisoners. It receives
from the various services concerned full information respecting internments and
transfers, releases on parole, exchanges, escapes, admissions into hospital, deaths,
as well as other information necessary to enable it to make out and keep up to date
an individual return for each prisoner of war. The office must state in this return
the regimental number, name and surname, age, place of origin, rank, unit,
wounds, date and place of capture, internment, wounding and death, as well as
any observations of a special character. The individual return shall be sent to
the Government of the other belligerent after the conclusion of peace.
It is likewise the function of the inquiry office to receive and collect all objects
of personal use, valuables, letters, etc., found on the field of battle or left by prisoners
PRISONERS OF WAR
585
who have been released on parole, or exchanged, or who have escaped, or died in
hospitals or ambulances, and to forward them to those concerned.
ART. 15.—Relief societies for prisoners of war, which are properly constituted
in accordance with the laws of their country and with the object of serving as the
channel for charitable effort shall receive from the belligerents, for themselves and
their duly accredited agents every facility for the efficient performance of their
humane task within the bounds imposed by military necessities and administra-
tive regulations. Agents of these societies may be admitted to the places of intern-
ment for the purpose of distributing relief, as also to the halting places of repa-
triated prisoners, if furnished with a personal permit by the mililary authorities,
and on giving an undertaking in writing to comply with all measures of order
and police which the latter may issue.
ART. 16.-Inquiry offices enjoy the privilege of free postage. Letters, money
orders, and valuables, as well as parcels by post, intended for prisoners of war, or
dispatched by them, shall be exempt from all postal duties in the countries of
origin and destination, as well as in the countries they pass through.
Presents and relief in kind for prisoners of war shall be admitted free of all
import or other duties, as well as of payments for carriage by the State railways.
ART. 17.-Officers taken prisoners shall receive the same rate of pay as officers
of corresponding rank in the country where they are detained, the amount to be
ultimately refunded by their own Government.
ART. 18.–Prisoners of war shall enjoy complete liberty in the exercise of their
religion, including attendance at the services of whatever church they may belong
to, on the sole condition that they comply with the measures of order and police
issued by the military authorities.
ART. 19.—The wills of prisoners of war are received or drawn up in the same
way as for soldiers of the national army.
The same rules shall be observed regarding death certificates as well as for the
burial of prisoners of war, due regard being paid to their grade and rank.
ART. 20.--After the conclusion of peace, the repatriation of prisoners of war
shall be carried out as quickly as possible.
HOSTAGES
1591. The custom of demanding one or more persons as hostages
to ensure the fulfillment of certain agreements between the bellig-
erents must be regarded as contrary to the laws of war.
1592. In no case may a belligerent consider himself authorized
to put hostages to death because of the non-fulfilment of obliga-
tions or as reprisals in case the persons given as hostages to the
enemy have been injured or killed.
1593. It shall only be lawful to detain certain influential persons
as hostages in order to take advantage of their moral authority
to obtain from a country the fulfilment of the obligations assumed
by or imposed on it in time of war. Such persons must, however, be
treated as prisoners of war, due regard being paid to their rank
and condition; they cannot be punished nor subjected to cruel
586
INTERNATIONAL LAW CODIFIED
treatment in case the purpose which was sought by detaining them
as hostages has not been attained.
DUTIES OF BELLIGERENTS TOWARDS THE WOUNDED AND SICK
1594. Belligerents must consider the wounded and sick as
exempt from the laws of war and allow the greatest freedom to the
members of the medical service and to those assisting them. They
must permit them to fulfill, under the protection of the "common”
law of peace, their humanitarian mission, and remove all obstacles
preventing their carrying out all the measures which, according
to medical science and humanitarian requirements, they may deem
necessary to ameliorate the condition of the wounded. The laws
of humanity impose in effect a sacred duty to consider persons
attached to and materials used in the medical service in time of
war as inviolable.
1595. All the signatory states of the Geneva Convention of
August 22, 1864, renewed July 6, 1906, respecting the amelioration
of the condition of the wounded in time of war, or states which have
adhered to that Convention, are bound to abide faithfully and
strictly by all the provisions of that Act and must see that it is
strictly complied with by soldiers, bringing it to the notice of all
the army corps and punishing violations thereof.
1596. Similarly, Governments must accept the changes which
are deemed necessary by specialists for the better functioning of the
medical service in time of war, in order better to carry out the hu-
manitarian purpose sought by the Geneva Convention.
1597. Any state which, in time of war, intends to abide by the
laws of civilization and the duties of humanity must (independently
of any participation in or adhesion to the Geneva Convention or of
the observance of the same rules by the enemy) consider as an im-
perative principle of the law of natural justice and humanity the
respect of sick or wounded soldiers and of the medical personnel
by applying to them the laws of humanity rather than those of war,
saving the necessary safeguard of its own interests and observing
the rules which follow.
1598. Wounded or sick soldiers must be received and cared for,
whatever their nationality may be. Therefore, it is left to the com-
manders-in-chief either to deliver up immediately to the hostile
outposts enemy soldiers wounded during the fight, if circumstances
WOUNDED AND SICK
587
permit or to allow the greatest liberty to all persons of the medical
corps in giving these wounded all the care and attention necessary.
AMBULANCES, HOSPITALS, MEDICAL SERVICE
1599. The personnel of military ambulances and hospitals,
which comprises the commissariat, the medical service, that of
administration and transport of wounded, as well as voluntary
aids, members and agents of voluntary aid societies duly author-
ized to assisť the official medical personnel, shall be considered
neutral so long as they attend to their duties and there are wounded
to receive and care for.
1600. The persons mentioned in the preceding article shall have
the right even after the military occupation of the enemy has
ceased, to continue attending to their duties in the hospitals and
ambulances to the service of which they are attached, or to ask
permission to join the corps to which they belong. It shall then
be left to the officer commanding the army of occupation to insure
the freedom of departure of such persons, subject to the conditions
fixed by him in conformity with military necessities. He may
impose on them the obligation to postpone their departure for a
few days and have them escorted as far as the hostile outposts.
1601. Military ambulances and hospitals which are in terri-
tory occupied by the enemy also enjoy the privilege of neutrality,
so long as they contain sick or wounded; and the evacuation of the
ambulances and hospitals together with the personnel directing
them shall likewise enjoy the same privilege.
1602. The belligerents must place on the ambulances, hospitals
and wagons or other contrivances serving for the transport of
wounded, the uniform and special flag prescribed by the Geneva
Convention. This flag must always be accompanied by the na-
tional flag. In like manner, the personnel attached to the medical
service must wear a special brassard, save when otherwise author-
ized by the military authorities.
RIGHTS OVER HOSPITAL. FURNISHINGS
1603. The furnishings of military hospitals shall be subject to the
laws of war, when there are no longer sick or wounded to be cared
for.
.
588
INTERNATIONAL LAW CODIFIED
The furnishings of field hospitals and ambulances enjoy the
privilege of neutrality.
Persons attached to the hospital service shall always have the
right, when they leave, to take away with them any articles of
their personal property.
WOUNDED RECEIVED IN PRIVATE HOUSES
1604. It shall be left to the commanders of the belligerent armies
to respect and protect the inhabitants of the country occupied by
them who care for the wounded, and to encourage them by appeal-
ing to their generosity and granting them certain advantages
in return for their generous conduct.
WHEN CAN THE MEDICAL STAFF BE DENIED THE PRIVILEGE OF
NEUTRALITY?
1605. A belligerent has the right to deny all privileges of neu-
trality to the medical staff and establishments when it is shown and
the proof thereof may be adduced, that the persons attached to this
service, or the hospitals, establishments and ambulances desig-
nated to receive the wounded and sick, have been employed for
any operation foreign to their humanitarian purpose.
DUTIES TOWARD THE DEAD ON THE FIELD OF BATTLE
1606. The belligerents must respect the corpses of soldiers
killed in battle, protect them against plunder and outrage, insuring,
by means of appropriate punishment, the observance of orders by
their soldiers and by private persons.
1607. Outrages upon the corpses of soldiers killed on the field of
battle and especially mutilation, shall be deemed dishonorable
acts on the part of persons and governments which have not taken
the necessary steps for their prevention.
1608. It shall be deemed a duty of humanity to take, when cir-
cumstances allow, the necessary measures to give burial to the
dead and assure full liberty and absolute security to persons who
may wish to fulfil this sacred duty.
WOUNDED AND SICK
589
1609. It shall likewise be considered a reciprocal duty upon bel-
ligerents, when they may do so without grave difficulties, to
collect, before burying the dead, all the tokens likely to establish
their identity and to forward these to the commander of the hos-
tile army.
TITLE XI
RIGHTS OF THE BELLIGERENTS OVER ENEMY
PROPERTY
1
RIGHTS OVER THE PROPERTY BELONGING TO THE STATE AND TO
PRIVATE PERSONS
1610. A belligerent has the right to take possession of and con-
fiscate property belonging to the enemy State which may come into
his hands.
He may therefore seize and appropriate to his own use, arms and
any kind of munitions of war, even if in warehouses, supplies,
money and securities strictly the property of the State, the rolling
stock of government-owned railroads and the apparatus of the
telegraph service, war vessels and others adapted to war purposes,
and in general, any personal property of the State apt to be used
or usable for war purposes.
A belligerent is bound to respect and leave untouched the per-
sonal property of institutions dedicated to religion, charity, edu-
cation, arts and sciences, notwithstanding the fact that such es-
tablishments belong to the enemy State.
1611. The private property of enemy citizens should be regarded
as inviolate, in war on land as well as in maritime war, subject,
however, to the limitations which may be regarded as based upon
the necessities of war, the damage and destruction justified as
incidental to attack or defense, and in certain well-established
cases, the liability to confiscation, when the belligerent may be
regarded as authorized to exercise the right of prize capture.
ENFORCED EXPROPRIATION OF PRIVATE PROPERTY
1612. Military commanders may take possession in enemy
territory of the personal property of private persons which may
590
RIGHTS OF BELLIGERENTS OVER ENEMY PROPERTY
591
be useful for war purposes, and especially of property which may
be required for security and defense, subject, however, to the ob-
ligation of indemnifying the expropriated owners.
1613. It shall be within the power of the aforesaid commanders
in the enemy country to compel private individuals or corporations,
by the use of force, if necessary, to surrender all such personal
property as may, by its nature or design, be useful for war purposes,
paying to such persons or corporations due compensation, or by
reserving their right to obtain payment from the belligerent
subsequently held obligated to pay.
The following property shall come under this head: railroad and
telegraph apparatus, arms, munitions and supplies intended for
the army and which might be needed for the equipment of troops.
Army commanders may also provide themselves in the enemy
country with materials or supplies needed by them, by imposing
requisitions and war contributions.
REQUISITIONS
1614. Requisition consists in providing things necessary to the
troops (provisions, forage, fuel, clothing, means of transportation,
etc.) by imposition of the commander upon the country crossed
or occupied by him, and without any right to reimbursement.
1615. The military commanders who wish to make a requisition
in the enemy country must apply to the local authorities, leaving
it to the latter to furnish what is demanded of them and to ap-
portion the burden among the inhabitants of the country.
The commander is always bound to give a receipt showing the
nature and quantity of the things furnished which may serve as a
title or evidence for any claims which may eventually be brought
by the authorities or private persons who furnished the material
requisitioned.
1616. When there is no authority in the enemy country to
undertake the apportionment of the requisition, or when, on de-
mand, they do not furnish the supplies promptly, or when their
work is ineffective, the military commander has the right to order
compulsory requisitions, employing soldiers directly to obtain the
desired supplies from private individuals, delivering to them a mere
receipt.
592
INTERNATIONAL LAW CODIFIED
1617. Military commanders must undertake requisitions in
the enemy country with moderation and caution, assisting the
local authorities in maintaining order and not making excessive
demands, having due regard to the means and resources of the
country.
1618. It is not lawful in an enemy country to impose as a
requisition any service of such a nature as to involve the inhabi-
tants in the obligation to take part in military operations against
their own country.
[See art. 52 of Convention IV, Hague Regulations of 1907–
Transl).
CONTRIBUTIONS OF WAR
1619. A request for money made in an enemy country consti-
tutes a war contribution.
1620. A military commander may levy a war tax for the sole
purpose of replenishing the military cash box. He shall be bound
to deliver a receipt to the commune or person upon which or whom
it was imposed so as to safeguard their rights to an eventual fu-
ture reimbursement.
A contribution may also be levied against an enemy country
by way of punishment when:
(a) The country has declined to satisfy a requisition of provi-
sions or a service of any kind, and there is reasonable ground for
belief that the refusal was impelled by ill-will or that the supplies
requested have been sent away or concealed in bad faith.
(6) The country itself, or the authority representing the govern-
ment thereof has violated the laws of war;
(c) There exists a well-founded suspicion that the authority
representing the government of a country or of a commune has
facilitated the execution of crimes punishable under the laws of
war, or has negligently failed to prevent them.
1621. War contributions must be proportioned according to the
resources of each country.
Heavier contributions may be imposed when they are inflicted
as punishment, although they may not be so excessive as to become
a veritable spoliation.
RIGHTS OF BELLIGERENTS OVER ENEMY PROPERTY
593
WAR BOOTY
1622. Anything which, following a battle or fight, has fallen
into the hands of the soldiers of the adverse party and whose
owner cannot be found may be regarded as an object of war prize
or deemed war booty.
1623. Every soldier may take the arms, horses and equipment
belonging to the beaten enemy, but it shall not be lawful to take
valuables belonging to the soldiers of the adverse party found
dead on the battlefield or declared prisoners of war.
Wrongful appropriation of such articles must be deemed a
crime punishable under military law.
The military penal code of Italy provides severe punishment for the wrong-
ful appropriation of articles belonging to soldiers of the enemy, as follows:
ART. 276.-Whoever shall have despoiled a soldier or any other individual
attached to the army or to a corps thereof, that is to say, a prisoner of war,
who is found wounded, shall be punished, according to the circumstances, by
death preceded by degradation, or by hard labor for life or for a fixed period.
ART. 278.—The party guilty of plunder shall be punished with a term in
the military prison or some other form of punishment to be determined by
special order.
The officer who failed to prevent plunder, while able to do so, shall incur
the punishment of a term in the military prison accompanied by his dismissal.
When he shall have participated therein, the punishment shall be confine-
ment in a military prison for not more than three years, always accompanied
by dishonorable discharge.
ART. 279.—If in connection with the crime of plunder violence or maltreat-
ment occur, the punishment inflicted shall be military confinement for no
less than five or more than seven years if the guilty party is an officer, without
prejudice to any punishment incurred for other and greater crimes.
TITLE XII
BELLIGERENTS IN NAVAL WAR
WHO MUST BE REGARDED AS BELLIGERENTS
1624. In time of naval war the following should be considered
as having the status of belligerents:
(a) All war vessels of the enemy State, that is, those which,
manned by a naval crew, under the direction of a naval commander,
are authorized to carry the flag and ensign of the navy;
(b) The ships transformed by the State into war vessels and
placed under the direct authority and immediate control and re-
sponsibility of the State whose flag they carry;
(c) The volunteer auxiliary navy created by reason of the war
under due authorization of the Government;
(d) Private ships legally commissioned by the Government
as privateers under letters patent or letters of marque;
(e) All the sailors constituting the crews of such ships;
(f) The mustered-in personnel of the coast guard;
(g) The marines of the naval reserve;
(h) The population of a territory not occupied which, on the
approach of the enemy, immediately fit out vessels to combat
them without having had time to have them transformed into war
craft, provided such population acts openly and respects the laws
and usages of war.
See the Manual adopted at Oxford by the Institute of International Law
and published in volume xxiv of the Annuaire.
The formation of a volunteer auxiliary navy should always be authorized by
decree of the sovereign. During the Franco-German war of 1870, the King
of Prussia created a volunteer navy by decree of July 24, 1870, the text of
which is here given as cited by Perels in § 34 of his work:
“I authorize, on your recommendation, the formation of a volunteer naval
corps as follows:
1. An appeal shall be made to all German sailors and ship owners request-
ing them to place themselves with their resources and ships at the disposal
of the fatherland under the following conditions:
“(a) The vessels offered shall be examined as to their fitness by a commis-
594
BELLIGERENTS IN NAVAL WAR
595
sion composed of two officers and a naval engineer. Their value, if necessary,
shall be appraised and the owner shall immediately receive one-tenth of the
appraisement value to enlist sailors in sufficient number.
(b) The officers and sailors thus enlisted shall belong during the war to the
federal navy; they shall wear its uniform and insignia, be subject to regula-
tions and shall take the military oath. The officers shall receive a commis-
sion of their rank and assurance that, on request, they shall, in case of excep-
tional service, be admitted finally into the navy. The officers and sailors
who, in the performance of their duties and without any fault of theirs shall
become incapable of working, shall receive a pension in accordance with the
rules in force in the navy;
“2. The chartered vessels shall navigate under the military flag of the Con-
federation.
"3. They shall be fitted out for the federal navy according to the use that
may be made of them."
Then follow the provisions respecting indemnities which we do not deem
it necessary to give.
It ensues from this decree that the volunteer navy thus organized was to
be considered as an auxiliary fleet of the regular fleet, and that, accordingly,
the French government properly could not, as it did, protest against such an
organization, by claiming that its result was to restore privateering by artifice.
MERCHANT SHIPS CONVERTED INTO WAR VESSELS
1625. Any belligerent state shall have the right in a naval war
to make use, in addition to its war vessels composing its regular
fleet, of merchant ships fitted out as war vessels, when they meet
the conditions required by the principles of international law.
All the ships of the belligerent state commissioned to take
part in the war, whether combatants or not, belong to the armed
force of the State and must be governed by the laws of war.
1626. All the states which have signed and ratified Convention
VII, which is part of the General Act of The Hague of October 18,
1907, must, under this convention, comply with the following
rules therein set forth, when they wish to add merchant ships
to their regular fleet and assign to such vessels the status of war
ships.
1627. A merchant ship converted into a war vessel can not have the
rights and duties accruing to such vessels unless it is placed under the
direct authority, immediate control and responsibility of the Power
whose flag it flies (art. 1).
1628. Merchant ships converted into war vessels must bear the
external marks which distinguish the war-ships of their nationality
(art. 2).
596
INTERNATIONAL LAW CODIFIED
:
i
1629. The commander must be in the service of the State and duly
commissioned by the competent authorities. His name must figure
on the list of the officers of the fighting fleet (art. 3).
1630. The crew must be subject to military discipline (art. 4).
1631. Every merchant ship converted into a war vessel must observe
in its operations the laws and customs of war (art. 5).
1632. A belligerent who converts a merchant ship into a war vessel
must, as soon as possible, announce such conversion in the list of
war-ships (art. 6).
These rules are the literal reproduction of articles 1 to 6 of the Convention
relative to the conversion of merchant ships into war vessels; it is the VIIth
Convention of the General Act of The Hague of October 18, 1907. This con-
vention, signed at first by 29 states was subsequently signed on June 30, 1908,
by the other states represented at the second Conference, with the exception
of the United States, China, the Dominican Republic, Nicaragua and Uruguay.
Turkey signed it with reservations.
1633. While the rules laid down in the foregoing articles can
be deemed binding under the convention only upon the states
which signed and ratified it, and then only in case of war among
themselves, nevertheless, they must be considered as expressing
just principles. No belligerent state can ever expect that mer-
chant ships added to its regular fleet shall be regarded as warships
capable of exercising the rights of war unless they display external
distinguishing marks identifying them as belonging to the regular
navy; unless in their conduct and operations, they comply with
the laws and usages of war; unless they are under the direct super-
vision of the naval authorities of the State whose flag they ily;
and unless the State which makes use of them for warfare assumes
responsibility for their acts.
Even admitting that in case of urgent need and in order to increase the
power of its navy, a state may appeal to the co-operation of its merchant
marine, it must be considered indispensable, in order to prevent the indirect
revival of privateering, to place the volunteer navy directly under the mili-
tary authority of the State and to compel it to comply with military discipline.
Otherwise, they would legitimate war waged by private persons in the in-
terest of the State, but in their own way, which would be inconsistent with
the fundamental principle that war must be a struggle between the military
forces of the belligerent states.
During the war of 1870 between France and Germany, the Prussian mili-
tary authorities, by decree of July 24, 1870, called upon all German sailors
and owners of merchant vessels to place themselves at the disposal of the
Government in order to be used against enemy war-ships. France protested
against the conduct of Prussia, which had signed the Paris treaty of 1856,
BELLIGERENTS IN NAVAL WAR
597
insisting that she was reviving privateering. The protest, however, was
considered ill-founded, on the ground that the merchant vessels which had
heeded the appeal of the Prussian government could not be considered as
private ships authorized to perform acts of warfare, since according to the
decree, they were to be subject to the military authorities and fly the war
flag of the Confederation (see the text of this decree in Perels, Manuel de droit
maritime, note under rule 1605).
PRIVATEERS
1634. None of the signatory states of the Treaty of Paris of
1856 can authorize private ships to perform acts of warfare against
the enemy as privateers, without violating the conventional rule
established by that treaty, which has declared privateering to
be abolished between the signatory powers and, at all events,
can deny international responsibility arising out of the viola-
tion of the conventional legal obligation.
The declaration formulated at Paris in the protocol of April 16, 1856, was
signed by Austria, France, Great Britain, Prussia, Russia, Sardinia and
Turkey. The following states subsequently adhered to it: Belgium, Den-
mark, Greece, Netherlands, Portugal, Sweden, Norway, Switzerland, Argen-
tina, Brazil, Chile, Ecuador, Guatemala, Haiti, Peru, and Uruguay.
Under this declaration, the above-mentioned states cannot fit out priva-
teers in a war with one another. Some writers (cf. Wolheim de Fonseca, Le
commerce allemand et les tribunaux des prises français; Gibson Bowles, The
declaration of Paris of 1856) have raised the question whether the abolition of
privateering, not having been stipulated in the treaty, but formulated by a
declaration, should be considered as a rule of conventional positive law with
respect to the signatory or adhering states; but the solution of this question
cannot give rise to any serious difficulty. International agreements can be
concluded in different ways (compare rule 746); now, the states having signed
the protocol embodying the rules respecting maritime war, it is clear that
they have thus established these rules in common accord with compulsory
legal force both for themselves and adhering states.
It was also asked whether one of the signatory states could be released
from the obligation of not fitting out privateers, by giving notice to the other
states of its intention of withdrawing its full acceptance of the Paris declara-
tion. A motion to that effect was made in 1877 in Great Britain and was
subsequently discussed on the 2d of March, 1877, in the House of Commons
(see for the details, Perels, $ 34B and Gessner, Préliminaire, Le droit maritime
à l'époque actuelle, pp. 55 et seq.) In order to remove all doubt, we refer to the
principles laid down in rules 26, 830 and 912.
[The United States abstained from signing the Declaration of Paris be-
cause it did not, in addition to privateering, also abolish the practice of cap-
turing private property at sea. - Transl.)
1635. Using privateers to fight the enemy must always be re-
garded as contrary to the fundamental principles of modern custom-
598
INTERNATIONAL LAW CODIFIED
$
ary law, which aims principally at controlling and civilizing war-
fare and at rendering its baneful consequences less detrimental.
Every civilized state should refrain from authorizing privateering.
1636. Fitting out privateers may be justified as a necessary
measure of defense as regards a belligerent state which, under the
right of reprisal, authorizes privateering against a hostile state
which, in arbitrary violation of conventional law, attacks it by
means of privateers.
1637. When a state is compelled to authorize privateering as
reprisals against a hostile state not a signatory of the treaty of
Paris of 1856 or not adhering thereto, or which violates that treaty,
it must be regarded as bound to see that the exercise of the rights
of war, on the part of the privateers which it has duly commis-
sioned, are strictly regulated; it would incur responsibility for any
negligent failure in this respect, or if it had not, by means of proper
regulations, sought to prevent all excess and arbitrary acts on the
part of its privateers.
1638. Privateers cannot be considered as belonging to the public
forces of the State unless they are provided with the special au-
thorization to undertake acts of warfare by the superior military
authorities empowered to confer upon them the license to engage
in privateering, known as letters of marque.
Acts of warfare undertaken by them shall not be deemed lawful
unless the instructions contained in the letter of marque are strictly
adhered to.
1639. Privateers duly authorized by a belligerent state possess-
ing that right may demand that the laws and usages of war be
applied to them, provided however, that they themselves observe
the rules of war.
1640. A belligerent has no right to treat privateers duly com-
missioned by the Government of the hostile state as pirates, al-
though it may have formally declared its intention so to consider
them.
If, however, privateers have been authorized to wage war as such
by one of the states bound by the prohibition against privateering
contained in the treaty concluded at Paris, March 30, 1856, any
belligerent could hold both the privateers and the state licensing
them liable for the acts committed by them.
Compare rules 301, 603 and 611.
BELLIGERENTS IN NAVAL WAR
599
1641. If, under the national law of the flag of a merchant ship
which has accepted letters of marque from a foreign government,
national merchant vessels are prohibited from undertaking service
as privateers for a foreign state under penalty of being treated
as pirates, any such vessel could be treated as such, not only by
the state whose nationality it bears, but also by any third bellig-
erent Power against which it may have committed hostile acts.
There are numerous examples of the kind contemplated in this rule.
The French naval ordinance of 1681 reads as follows (III, art. 3):
“We forbid all our subjects to accept commissions from any kings, princes
or foreign states, to arm vessels in time of war to act as privateers under their
flag, without our permission, under penalty of being treated as pirates.”
Sometimes the prohibition is decreed by each state declaring its neutrality,
at the same time forbidding national merchant ships to accept letters of marque
from either belligerent. This is what Spain and the United States did when
the Franco-German war of 1870 broke out.
There are treaties in which it is stipulated that the respective merchant
ships are prohibited from accepting letters of marque in case of war between
one of the contracting parties and a third power.
Article 20 of the treaty of Sept. 10, 1785, between Prussia and the United
States reads as follows: "No citizen or subject of the contracting parties shall
take from any Power with which the other may be at war any commission or
letter of marque for arming any vessel to act as a privateer against the other,
on pain of being punished as a pirate.”
It seems evident to us that in such a case the belligerent may treat as a
pirate a privateer which has violated its national law.
1642. Privateers may be treated as pirates:
(a) If they wage war after the time fixed by the letters of marque
which have authorized them to fit out as privateers, or after the
war is over, and when their bad faith may be presumed;
(6) If they have accepted letters of marque from both bel-
ligerents.
Compare Perels, Droit maritime, $ 34B.
1643. It is the duty of all civilized states to consider the aboli-
tion of privateering, which was declared binding upon the signa-
tory states of the treaty of Paris of 1856, as the rule most rational
and just to everyone, in view of the intrinsic difficulty of subject-
ing privateers to discipline.
It suffices to note that while the privateer is considered as belonging to the
naval forces of the State, in reality it is subject to the authority of the captain.
Therefore, the absence of control of the military authorities constitutes a
primary intrinsic difficulty to compliance with military duties, and to modera-
tion and discipline on the part of privateers. Besides, as prizes are divided
600
INTERNATIONAL LAW CODIFIED
between the State which has granted the letters of marque and the privateer,
the result is to legitimate acts of warfare performed both for a private purpose
and in a public interest and necessarily the use of armed force for the advan-
tage of private persons.
It is preferable for states whose navy is inadequate to have recourse to an
auxiliary volunteer navy.
The Italian merchant marine code lays down as a principle, in article 208,
that privateering is abolished, and declares it lawful only by way of reprisal
against states which have not adhered to the Paris convention of 1856 or have
denounced it.
MERCHANT SHIPS ENGAGED IN WARFARE
1644. No private ship which has not been duly mustered into
the navy of a belligerent state and which performs acts of hos-
tility against the ships of the enemy state can expect such acts
to be considered as acts of war. They must, on the contrary, be
regarded as acts of piracy.
1645. The belligerent acts of any private ship which, even when
privateering is permitted, operates without a legal commission or
letters of marque, shall likewise be regarded as acts of piracy.
The acts of a privateer, provided with letters of marque, which
exceed or are not comprised within its legal commission or letters
of marque shall also be regarded as acts of piracy.
1646. Private ships shall be permitted, in time of maritime war,
to resort to force to defend themselves against hostile ships which
seek to attack them, and any hostile act accomplished by them
under these circumstances shall be regarded as an act of legitimate
defense.
1647. Any act of hostility on the part of a national merchant
ship shall be likewise regarded as legitimate if the ship, being pres-
ent when an enemy vessel attacks another national ship, proceeds
to the latter's defense and in some way makes use of her armament
to repel the attack.
(Whatever authority there may be for the arming of merchant ships to resist
capture, a practice quite common during the wars between 1780 and 1860,
and their concdeed privilege, it is necessary to add that by so arming these
vessels waive their immunities as merchant ships, with all the legal conse-
quences flowing from that change of status. Their status as armed enemies
is evident when the principle is recalled that war makes enemies of the na-
tionals of the respective belligerents. By taking arms a vessel of a belliger-
ent nation becomes an armed enemy, and can hardly lay claim to any im-
munities as a peaceful merchantman. The test of her status lies in her
capacity to inflict injury upon a belligerent. Hence in these days, since priva-
BELLIGERENTS IN NAVAL WAR
601
teering and piracy have nearly disappeared, there is practically no impor-
tance attached to the distinction between arming for “defense” and arming
for “offense." In our war of 1812 with Great Britain, there does not appear
to have been any case where an armed merchantman claimed immunity
from attack, with or without warning. The question of warning seems never
to have been raised. This is made clear by Chief Justice Marshall and other
justices of the Supreme Court in the case of The Nereide, 9 Cranch, 330.
Neutral ships, it would seem, can hardly justify the carrying of armament, a
practice entirely inconsistent with a non-belligerent status.-Transl.)
TITLE XIII
ACTS OF HOSTILITY IN MARITIME WAR
GENERAL RULE
1648. Maritime war must be regarded, in principle, as subject
to the laws and usages of war on land, except for the diversity in
the means adopted to attain its ultimate purpose.
Belligerents cannot claim unlimited freedom in the choice of
the means to be used to attain their purpose, which is to destroy
the naval force of the enemy. They are bound, as regards means
of attack and defense, not only to respect the prohibitions estab-
lished by "common" and conventional law; but they must also
refrain from attempting, by invoking the necessities of war, to
justify certain usages commonly considered as contrary to the
rational principles of international justice, the interests of inter-
national society and the sentiments of humanity and civilization.
At present, according to the customs admitted by the civilized states of
Europe and America, maritime war is an armed struggle against the military
power and naval force of the enemy and against its economic power, which
gives rise to the attack upon the peaceful commerce of private persons of the
hostile country.
The general conception of hostilities admitted and regarded as lawful in
time of naval war is sanctioned in the instructions of the United States for
the service of the navy of June 27, 1900, The laws and usages of war on sea,
known as the United States Naval War Code.
Article I reads as follows: "The general object of war is to procure the com-
plete submission of the enemy at the earliest possible period with the least
expenditure of life and property. In maritime operations the usual measures
for attaining this object are: To capture or destroy the military and naval
forces of the enemy; his fortifications, arsenals, dry docks or dockyards; his
various military and naval establishments, and his maritime commerce and
communications; to prevent his procuring war material from neutral sources;
to coöperate with the army in military operations on land, and to protect and
defend the national territory, property, and seaborne commerce.”
FIELD OF OPERATIONS OF NAVAL WAR
1649. The field of operations of naval war comprises the high
sea and the territorial waters of the belligerents. Hostilities can-
602
ACTS OF HOSTILITY IN MARITIME WAR
603
not take place either in the territorial waters of neutral states or
on parts of the sea conventionally neutralized, or in canals or
straits which, for the protection of collective interests, have been
neutralized.
Cf. Bonfils-Fauchille, $ 1269; Perels, Droit maritime, $ 553; Oppenheim,
op. cit., II, § 70.
İnstances of waters neutralized in the collective interests of trade and com-
merce are numerous. Under the convention of Constantinople of October 29,
1888, the Suez Canal was neutralized, as were also, under the treaty of Berlin
of July 13, 1878, the river Danube, from the Iron Gates to its mouth (art. 52),
and the Congo and the Niger, under the treaty of Berlin of February 26, 1885
(art. XXV).
The belligerents may also, by means of conventions concluded in contem-
plation of war between them, establish in common agreement that acts of
hostility cannot take place in certain parts of the sea. This was agreed upon
in 1759 between Russia and Sweden with respect to the Baltic Sea and was
proposed during the war of 1870 between France and Germany, with respect
to the seas of the Far East. See Bonfils-Fauchille, loc. cit.
LAWFUL MEANS OF ATTACK UNDER PRESENT LAW
1650. Belligerents are permitted under the customs at present
in force, to employ in maritime war the most powerful means of
destruction and the terrible engines which modern science is con-
stantly perfecting for annihilating the enemy's naval force.
They may, with that object in view, make use of cannons of
all kinds, rifles of any model, torpedoes, ships of any construction,
submarine boats and any other contrivance which may be invented
to destroy the naval forces of the adversary as rapidly as possible.
Maritime war in our time is a veritable war of extermination and destruc-
tion, and modern science concentrates all its efforts towards securing the most
up to date and powerful means of sinking hostile warships with their crews.
In short, naval battles are a destruction of naval forces and an annihilation
of human lives. It is with reason that it is claimed as neither logical nor
human to admit such customs; but they are the unavoidable consequence of
maritime war, on account of the lack of conventional rules and the nature of
the element on which the struggle is carried on. So long as war shall not have
been abolished, it will always be difficult to regulate and place it in harmony
with the principles of humanity. It is a pity that the noblest sentiments are
disregarded, even those of loyalty and military honor, which ought to be re-
spected during the struggle.
This can be said, for example, with regard to the use of submarines in
launching torpedoes against which the enemy is powerless to defend himself.
It may with reason be maintained that it is not fair to sink by means of sub-
marines a ship which is unable to distinguish her adversary so as to enable
her to defend herself against it, and that such unfair means of attack should
be prohibited. But those who believe that one of the principal characteristics
604
INTERNATIONAL LAW CODIFIED
of maritime war is a struggle for destruction, the purpose of which can only
be attained through the annihilation of the crew of the hostile ship, go so far
as to claim that any means of destruction aimed directly at the enemy is per-
missible and that, consequently, the use of submarines cannot be prohibited.
MEANS THAT SHOULD BE CONSIDERED LAWFUL
1651. Belligerents have not an unlimited right in the choice of
means for injuring the enemy.
1652. Means which imply treachery must be regarded as unlaw-
ful. These should include:
(a) The killing or wounding of individuals of the adverse party
by treachery;
(6) The improper use of the flag of truce, the use of a false flag
or uniforms or insignia of any kind, especially those of the enemy,
as well as the distinctive signs of hospital relief organizations
indicated hereafter.
1653. The following must be deemed barbarous, in addition to
prohibitions established in special conventions:
(a) The use of poison or of poisoned weapons;
(6) The use of arms, projectiles or materials capable of inflicting
unnecessary injury. In this category must be classed explosive
projectiles or cartridges of fulminant or inflammable matter
weighing less than 400 grams.
1654. It should be considered as highly desirable for civilized
states to agree to regulate maritime war and to insure in its prose-
cution the observance by the belligerents of the laws of honor and
fairness.
These states, therefore, must prohibit any treacherous means of
attack which, instead of aiming at paralyzing the naval force,
inevitably results in the destruction of many human lives, victims
to military duty, and they should limit and regulate the combat
so that the attack will, so far as possible, be directed against the
ship to compel her to surrender and not against the crew.
For this purpose, the use of torpedoes, submarines, ships laden
with explosives, ships with rams, or hollow balls filled with in-
flammable materials, should be prohibited so as to reduce the
struggle to an artillery combat, where treachery would not pre-
vail, but where superiority would be assured to military art and
the competent organization of the naval force,
ACTS OF HOSTILITY IN MARITIME WAR
605
The first Hague Conference of 1899 had already expressed the wish that
governments should reach an agreement towards establishing uniform rules
as to the types and bores of marine guns and cannons. The second Con-
ference of 1907 thus formulated its wish on the 18th of October, at the signing
of the General Act:
The Conference expresses the opinion that the preparation of regulations rela-
tive to the laws and customs of naval war should figure in the program of the next
Conference, and that in any case the powers may apply, as far as possible, to war
at sea the principles of the convention relating to the laws and customs of war on
land.
It is necessary to note also that in the circular addressed on December 30,
1898-January 11, 1899, by the Russian government to the representatives of
the foreign powers, among other subjects of discussion, the following were
suggested:
“1. To prohibit the use in the armies and navies of any kind of firearms,
and new explosives, or any powder more powerful than those now in use,
either for rifles or cannon.
"2. To prohibit the use, in naval warfare, of submarine torpedo boats or
submersibles, or other similar engines of destruction; to undertake not to
construct vessels with rams in the future."
It is to be hoped that, having due regard to these precedents, civilized states
will arrive at an agreement to render naval warfare less terrible, by prohibit-
ing means of attack which, according to present customs, greatly shock the
sentiments of civilization and humanity.
BOMBARDMENT
1655. Bombardment may be considered as a lawful means of
attack in naval warfare; provided, however, that it can be justi-
fied by the final end of war, and that it is effected in accordance
with the rules of bombardment adopted in war on land.
This means of attack when resorted to in naval war for the sole
purpose of terrifying the enemy, causing him damage, destroying
public and private property, provided such devastation cannot
be regarded as required by the actually pressing necessities of
war, must be deemed unlawful and contrary to the rational prin-
ciples of law and natural justice, which should govern war.
1656. It is incumbent upon all civilized states to recognize that
the legal rules established and stipulated by the states represented
at the second Hague Conference are the expression of the just
principles of international law, and to comply with such rules
in order to determine when bombardment may be deemed lawful
and when unlawful in naval war.
Civilized states should repudiate the erroneous idea that any
form of devastation, any means of terror by naval forces, any
606
INTERNATIONAL LAW CODIFIED
damage caused to private persons of the hostile state with the ob-
ject of terrifying them by the horrors of war may be justified,
although not required by the urgent necessities of military opera-
tions.
It is not always easy to determine through positive, unequivocal rules when
bombardment may or may not be justified by the necessities of military opera-
tions. Undoubtedly, a bombardment could never be deemed legitimate if
effected for the sole purpose of terrifying, or of punishing the resistance of the
enemy by the destruction of public and private property. Some of the parti-
sans of unlimited bombardment seek to justify everything by means of the
specious argument that anything which may increase the horrors of naval war
tends to render it difficult and to shorten its duration; but that would render
lawful any devastation, destruction, fire and all other measures calculated
to terrify the state which resists, in an attempt to compel it to lay down its
arms when it sees the disastrous effects of its resistance. The bombardment
of Copenhagen by Nelson, in 1801, was designed to terrify the Danish fleet
which was at anchor in the Sund and to accelerate its surrender, yet Cauchy
has characterized the conduct of the British admiral as perfidious and odious
and uncalled for (v. II, p. 255). Cf. Calvo, v. IV, $ 2090–2091; Oppenheim,
v. II, $ 213; Bonfils-Fauchille, $ 1277 and the report of Holland to the In-
stitute of International Law at the session of Venice in 1896 and the rules
voted by the Institute, Annuaire, 1896, pp. 311-312.
1657. The bombardment of an open and undefended city, or of
unfortified ports and coasts must be regarded as unlawful when
effected by naval forces and when not required by the necessities
of war and of military operations.
These necessities may be recognized as valid when the purpose
of the bombardment is to destroy dock-yards, military establish-
ments, arsenals or war supply depôts.
Such would be the case also when the bombardment is designed
to protect the landing of troops or marines which the inhabitants
of the open and undefended town might seek to prevent.
1658. The following rules respecting bombardment by naval
forces in time of war, formulated in convention IX, should be con-
sidered as legally binding upon the states which have signed and
ratified the General Act of The Hague of 1907.
1659. The bombardment by naval forces of undefended ports, towns,
villages, dwellings or buildings is forbidden.
A place cannot be bombarded solely because automatic submarine
contact mines are anchored off the harbor. (Art. 1.)
1660. Military works, military or naval establishments, depôts of
arms or war material, workshops or plants which could be utilized
ACTS OF HOSTILITY IN MARITIME WAR
607
for the needs of the hostile fleet or army, and the ships of war in the
harbor are not, however, included in this prohibition. The comman-
der of a naval force may destroy them with artillery, after a summons
followed by a reasonable time of waiting, if all other means are im-
possible, and when the local authorities have not themselves de-
stroyed them within the time fixed.
He incurs no responsibility for any unavoidable damage which may
be caused by a bombardment under such circumstances.
If for military reasons, immediate action is necessary, and no delay
can be allowed the enemy, it is understood that the prohibition to bom-
bard the undefended town holds good, as in the case given in para-
graph I, and that the commander shall take all due measures in order
that the town may suffer as little harm as possible. (Art. 2.)
1661. After due notice has been given, the bombardment of unde-
fended ports, towns, villages, dwellings or buildings may be com-
menced, if the local authorities, after a formal summons has been
made to them, decline to comply with requisitions for provisions or
supplies necessary for the imṁediate use of the naval force before the
place in question.
These requisitions shall be in proportion to the resources of the place.
They shall only be demanded in the name of the commander of the
said naval force and they shall, as far as possible, be paid for in cash;
if not, they shall be evidenced by receipts. (Art. 3.)
1662. Undefended ports, towns, villages, dwellings or buildings
may not be bombarded on account of failure to pay money contribu-
tions. (Art. 4.)
1663. In bombardment by naval forces all the necessary measures
must be taken by the commander to spare as far as possible sacred
edifices, buildings used for artistic, scientific, or charitable purposes,
historic monuments, hospitals and places where the sick and wounded
are collected on the understanding that they are not used at the same
time for military purposes.
It is the duty of the inhabitants to indicate such monuments, edifices
or places by visible signs, which shall consist of large, stiff rectangular
panels divided diagonally into two colored triangular portions, the
upper portion black, the lower portion white. (Art. 5.)
1664. If the military situation permits, the commander of the
attacking naval force, before commencing the bombardment, must do
his utmost to warn the authorities. (Art. 6.)
608
INTERNATIONAL LAW CODIFIED
UNLAWFUL MEANS OF ATTACK
1665. The use of bullets which explode on contact and flatten,
causing wounds hard to heal should be prohibited to belligerents
in naval warfare. This includes bullets with a hard envelope
which does not completely cover the core and contains incisions.
The throwing of cannon shells or projectiles which emit as-
phyxiating or deleterious gases should likewise be prohibited.
As to the use of submarine mines, we must regard it as indis-
pensable to the protection of the rights of peaceful commerce to
recognize as binding upon all civilized states the following rules
adopted in common agreement by the Powers represented at the
Hague Conference of 1907.
It is the duty of every civilized state to declare these rules com-
pulsory by means of instructions given to its navy.
The use of dumdum bullets employed by certain states, among others by
Great Britain in her colonial wars, was prohibited by the convention of St.
Petersburg of November 29-December 11, 1878. See the note under rule
1484.
In like manner, the rule proclaimed by the first Hague Conference, which
reads as follows, is to be observed: “The contracting parties agree to abstain
from the use of bullets which expand or flatten easily in the human body, such
as bullets with a hard envelope which does not entirely cover the core or is
pierced with incisions.” (Third declaration of the Final Act of the Interna-
tional Peace Conference of July 29, 1899.) These various rules, binding upon
the states which have signed the conventions wherein they are stipulated,
ought to be likewise regarded as binding upon other states, by virtue of “com-
mon” law and of the general principles which compel belligerents not to vio-
late the rights of peaceful traders of neutral states in time of war.
AUTOMATIC SUBMARINE CONTACT-MINES
1666. It should be considered as forbidden as between the bel-
ligerent states which have signed or adhered to the Hague Conven-
tion of 1907, provided they alone are involved in war:
1. To lay unanchored automatic contact mines, except when they
are so constructed as to become harmless one hour at most after the
person who laid them ceases to control them;
in
2. To lay anchored automatic contact mines which do not become
harmless as soon as they have broken loose from their moorings;
3. To use torpedoes which do not becomes harmless when they have
missed their mark. (Art. 1.)
1
ACTS OF HOSTILITY IN MARITIME WAR
609
1667. It is forbidden to lay automatic contact mines off the coast
and ports of the enemy, with the sole object of intercepting commer-
cial shipping. (Art. 2.)
1668. When anchored automatic contact mines are employed, every
possible precaution must be taken for the security of peaceful shipping.
The belligerents undertake to do their utmost to render these mines
harmless within a limited time and should they cease to be under sur-
veillance, to notify the danger zones as soon as military exigencies
permit, by a notice addressed to ship owners, which must also be com-
municated at once to the Governments through the diplomatic channel.
(Art. 3.)
1669. Neutral Powers which lay automatic contact mines off their
coasts must observe the same rules and take the same precautions as
are imposed on belligerents. The neutral Power must inform ship
owners by a notice issued in advance, where automatic contact mines
have been laid. This notice must be communicated at once to the Gov-
ernments through the diplomatic channel. (Art. 4.)
1670. At the close of war, the contracting Powers undertake to do
their utmost to remove the mines which they had laid, each Power re-
moving its own mines.
As regards anchored automatic contract mines laid by one of the bel-
ligerents off the coast of the other, their position must be notified to
the other party by the Power which laid them, and each Power must
proceed with the least possible delay to remove the mines in its own
waters. (Art. 5.)
1671. The contracting Powers which do not at present own per-
fected mines of the pattern contemplated in the present Convention
and which, consequently, could not at present carry out the rules laid
down in Articles 1 and 3, undertake to convert the matériel of their
mines as soon as possible, so as to bring it into conformity with the
foregoing requirements. (Art. 6.)
SUBMARINE CABLES
1672. A belligerent cannot, in time of war, remove a submarine
cable, when the interruption of telegraphic correspondence may
be detrimental to the interests of neutrals, except when the latter
allow the use of such cable for communicating with the other
belligerent.
610
INTERNATIONAL LAW CODIFIED
He may cut a submarine cable which connects parts of the ter-
ritory of the hostile state, and which connects his own territory
with that of the other belligerent.
1673. A submarine cable between two neutral territories shall
be deemed inviolable and shall not be cut.
A belligerent may, however, cut a submarine cable connecting
neutral territories, if he has good reasons to believe that this means
of communication is being used for war purposes.
1674. A submarine cable which connects neutral territory with
a hostile territory may be cut in the territorial waters of the enemy.
It may also be cut beyond territorial waters in case of effective
blockade and within the limits of the blockade line.
1675. Whenever the belligerent may deem it necessary by reason
of the exigencies of war to cut a submarine cable, he must refrain
from any unnecessary injuries which might make it difficult to
put the cable into operation when peace is concluded.
1676. The preceding rules shall be applied without any differ-
ence between submarine cables belonging to the State and those
belonging to private individuals. As regards private individuals,
however, the expenses necessary to restore to service the cables cut
by reason of the exigencies of war and the damages arising there-
from shall be repaid or settled at the conclusion of peace.
1677. It is to be desired that states shall in common accord
establish rules for the protection of submarine cables in time of
war, by completing the convention of March 14, 1884, and by
providing that international correspondence, in the interest of
neutral commerce and private persons, shall not suffer any of the
unavoidable damages arising from its interruption on account of
war.
So long as such a convention has not been concluded, the com-
mander in chief of the fleet must determine, in his discretion,
whether the exigencies of war make it indispensable to interrupt
telegraphic communications. Since, by reason of its consequences,
it is a very serious measure, he should act with moderation and
great caution.
The rules we advocate are based on the principles admitted in conformity
with the regulations of naval warfare, on the rules adopted by the Institute
of International law at the session of Brussels of 1902, and on the doctrines
of writers.
The United States Naval Code contains the following rules in its article 5:
ACTS OF HOSTILITY IN MARITIME WAR
611
“1. Submarine telegraph cables between points in the territory of an enemy,
or between the territory of the United States and that of an enemy are sub-
ject to such treatment as the necessities of war may require.
“2. Submarine telegraph cables between the territory of an enemy and
neutral territory may be interrupted within the territorial jurisdiction of the
enemy, or at any point outside of neutral jurisdiction if the necessities of war
require.
(3. Submarine telegraph cables between two neutral territories shall be
held inviolable and free from interruption.”
Cited by Oppenheim, v. II, § 214, p. 224.
Compare: Renault, De la propriété internationale des câbles télégraphiques
sous-marins, in Revue de droit international, v. XII, p. 251; Holland, in Journal
du droit international privé, XXV, 1908; Zumlin, I cavi soltomarini e il tele-
grafo senza filo nel Diritto di guerra; Perdrix, Les câbles sous-marins et leur
protection internationale.
In the convention of March 14, 1884, the rights of belligerents are not regu-
lated; on the contrary, under article 15, their freedom of action is expressly
reserved.
1
LIMITATIONS UPON THE RIGHT OF ATTACK
1678. It should be held contrary to the law of nations to con-
tinue firing at a hostile vessel which, by striking its colors, manifests
its intention to surrender.
1679. The commander of a warship who is sure that the striking
of colors of the hostile vessel is not the result of an accident of the
fight, but a sign of surrender, is bound at once to order the ces-
sation of firing and must provide for the taking of the vessel.
These rules are based on the customary law of civilized countries.
Article 96 of the German instructions given by Perels, Droit maritime,
$ 35C reads as follows:
“As soon as a hostile ship has struck her colors, firing against her must
cease, and she must be taken possession of at once. The commander must
immediately send an officer with a provisional crew to take the ship and give
notice to the admiral of the squadron.”
Similarly, the Austrian regulations (111, n. 1488) provide as follows:
"If a foreign ship has struck her colors and if it is certain that the colors
have really been struck and not carried away by a shot, firing must immedi-
ately cease.” Compare Perels, loc. cit.
UNLAWFUL STRATAGEMS
1680. Surprise and stratagems implying deceit and violation
of the laws of military honor must be held unlawful in naval war-
fare.
The simulation of the flag when it is the intention to commence
action against the enemy must be regarded as such a stratagem.
612
INTERNATIONAL LAW CODIFIED
1681. It may be permitted to the commander of a warship to
hoist a false flag in order to escape the surveillance of a hostile
ship on the high sea, but simulating a flag when an attack is about
to be commenced must be held a deplorable violation of the laws
of war and of military honor.
Such is the case also when the flag is hoisted, and at the same
time a gun is fired to assert the true character of the flag.
The French decree of August 15, 1851, relating to service on board war
vessels provides as follows in article 121:
“Before commencing action, the commander in chief shall order the dis-
tinctive signs and the French flag to be hoisted on all ships. In no case must
he fight under a false flag. In night engagements, he must order a light to
be placed over the flag astern.”'
Similarly, the Austrian regulations (111, n. 1476) read as follows:
Before commencing fire, the national colors and the distinctive signs of
the command must be hoisted. In night engagements, a light must be placed
over the flag astern.'
1682. The use of a false flag by a war vessel can never be legit-
imate, not even as a reprisal, in cases where she is compelled to
hoist her own flag.
Conduct contrary to military honor on the part of a hostile
ship can never justify the adversary in acting in like manner.
This rule may be considered as based on the regulations governing the laws
of war drawn up by the Hague Conference of 1907, article 23f of which reads:
“It is especially forbidden to make improper use of the national flag,
or of the military insignia and uniform of the enemy.
While this text refers to war on land, no different rule should be admitted
in naval war.
1683. It must similarly be regarded as absolutely forbidden
during naval war, to use the distinctive signs of hospital ships es-
tablished by the Hague Convention of 1907, in order to avoid the
vigilance and action of hostile ships.
TITLE XIV
RIGHTS OF A BELLIGERENT WITH RESPECT TO
PERSONS OF THE ENEMY COUNTRY
1684. A belligerent may declare as a prisoner of war any person
of the enemy country who takes part in the war and falls into his
power.
Accordingly, not only the crews of war vessels shall be captured,
but also those of the volunteer navy and privateers duly author-
ized to take part in the war.
1685. A belligerent shall have no right to subject to the laws of
war private non-combatants, that is to say, those who do not
belong to the armed forces and do not take any part in the hostili-
ties, although they may be on board war vessels for the purpose of
fulfilling their peaceful mission. Therefore, it shall not be permis-
sible to capture as prisoners of war physicians, nurses and priests
on board a captured enemy vessel; they should be free to leave
the vessel after having accomplished their mission and to take
away with them all their personal property.
Compare art. 10 of the Convention of October 18, 1907, for the adaptation
to maritime warfare of the principles of the Geneva Convention.
PASSENGERS AND CREWS OF CAPTURED MERCHANT VESSELS
1686. Persons on board a merchant vessel not members of the
crew cannot be captured and declared prisoners of war, no matter
what their nationality may be, except when, being citizens of the
hostile state, there is ground to believe that they constitute part
of the armed forces or are called upon to serve in the army or in
the navy of their country.
1687. The crews of captured enemy merchant ships shall al-
ways retain their freedom, and it shall not be allowable, even by
way of reprisal, to declare the members of the crew of such vessels
prisoners of war, except when they have been guilty or suspected
of veritable acts of hostility or of lending assistance to the enemy.
613
614
INTERNATIONAL LAW CODIFIED
The belligerent shall, however, be allowed provisionally to de-
tain the captain, owner, pilot and any other person whom it might
be necessary to examine in order to ascertain the facts and cir-
cumstances, so long as their presence shall be deemed necessary for
the preliminary examination into the case.
1688. The belligerent must land in a safe and hospitable place
all members of the crew of the captured enemy merchant ship
whom there is no need to detain conformably to the foregoing rule,
and provide, in so far as circumstances permit, for their repatria-
tion. It shall never be permissible to abandon them on barren
and uninhabited coasts, nor in countries where their life and
liberty might be in danger.
These rules, already proposed in the preceding editions (rules 1307, 1308)
are opposed to customary law and the opinion of the majority of authors. In
the Prussian regulations of 1864, it is provided in article 18: "The crew of a
captured ship shall be maintained at the expense of the State until the deci-
sion of the case. If the captured ship is condemned, the citizens of the hostile
State among the members of the crew shall be declared prisoners of war."
The same provision is found in article 20 of the French instructions of 1854.
The British government favors the same custom and Lord Palmerston
used to say: "If Great Britain did not detain as prisoners of war sailors of
the hostile country taken on board a merchant ship, she would subsequently
have to fight them on board hostile war vessels."
Among writers, we shall mention Ortolan, Diplomatie de la mer, II, pp. 35
et seq., Hautefeuille, Droit et devoir des neutres, Westlake, in Revue de droit in-
ternational, v. VII, p. 258; Oppenheim, International Law, v. II, 88 201 and
249.
We have always considered war upon peaceful commerce as a veritable
anomaly (Fiore, Diritto internazionale pubblico, $$ 1503 et seq.) and as a still
greater anomaly the subjection to the laws of war of the peaceful citizens
who belong to the crew of a merchant ship. Compare id., v. III, 3d ed.,
§ 1759. In order to justify the capture of hostile merchant ships, the pre-
text of weakening the commercial power of the enemy is invoked. But how
can the capture as prisoners of war of the sailors of these ships be justified?
The possibility of employing them on war vessels is alleged. If so, all enemy
citizens who fall into the power of a belligerent ought to be declared pris-
oners of war, since they may be called to the colors. This custom, generally
accepted, is contrary to the general principle that private persons who do
not take part in the war must be considered as not involved in the hostilities
in progress between the states of which they are citizens.
Fortunately, Convention XI of the General Act of The Hague of 1907 has
settled the question conformably to more correct principles, in articles 5 and
6, which read as follows:
ART. 5.-—"When an enemy merchant ship is captured by a belligerent,
such of its crew as are nationals of a neutral state are not made prisoners of
war.
'The same rule applies in the case of the captain and officers likewise na-
RIGHTS OF BELLIGERENTS
615
tionals of a neutral state, if they promise formally in writing not to serve on
an enemy ship while the war lasts.
ART. 6.The captain, officers and members of the crew, when nationals
of the enemy state, are not made prisoners of war, on condition that they
make a formal promise in writing not to undertake, while hostilities last, any
service connected with the operations of the war.”
THE SHIPWRECKED AND WOUNDED IN MARITIME WAR
1689. It is incumbent upon all states, even upon those which
have not signed or adhered to the Hague Convention of 1907 to
consider it a duty under the principles of humanity and civiliza-
tion, not to subject to the laws of war the ships and craft which,
at their own risk, during or after the fight, pick up shipwrecked
persons or wounded without regard to nationality, but to regard
such vessels as neutral.
1690. Every state which has seized a war vessel fitted out as a
hospital ship with wounded and sick aboard, must deem it contrary
to military honor and to its dignity to divert it from its special pur-
pose and to subject it to the laws of war, by capturing it with its
hospital material and declaring the sick and wounded prisoners
of war. It must, on the contrary, allow the medical corps to con-
tinue to discharge its duties and when the sick and wounded, after
having been tended and cured, are capable of resuming their mili-
tary service, must allow them to return to their country, provided
they give their parole not to take any further part in the war.
1691. It is the duty of the states which have signed the Hague
Convention of October 18, 1907, to acknowledge the binding legal
force of the rules respecting the wounded, the sick and shipwrecked
persons in maritime war and to carry out faithfully all the stipu-
lations of that convention with respect to persons and vessels de-
signed to aid and assist them.
1
HOSPITAL SHIPS ACCORDING TO THE HAGUE CONVENTION OF 1907
1692. Military hospital ships, that is to say, ships constructed or
assigned by states specially and solely with a view to assisting the
wounded, sick and shipwrecked, the names of which have been com-
municated to the belligerent powers at the commencement or during the
course of hostilities, and in any case before they are employed, shall be
respected and cannot be captured while hostilities last.
616
INTERNATIONAL LAW CODIFIED
These ships, moreover, are not on the same footing as war vessels as
regards their stay in a neutral port. (Art. 1.)
We reproduce verbatim the articles of the convention concluded by the states
represented at The Hague at the second Conference of 1907. It sums up the
wishes of philanthropists and scientists as regards the application to naval
warfare of the Geneva Convention of August 22, 1864, which had already
been declared extended to such warfare by the first Hague Conference of 1899.
The Convention of 1907 is much more complete than that of 1899. It is the
tenth convention of the General Act of The Hague and constitutes in that
respect the "common” law of the 44 states which have signed it, except for
certain reservations made by China, Great Britain, Persia and Turkey.
As regards other states, while not strictly binding, it must be regarded as
the most complete expression of the principles of law and of humanitarian
sentiments, which no government can with impunity violate; it ought to be
declared compulsory at the beginning of every war.
This convention comprises 22 principal articles: the others, to article 28,
refer to ratification and adhesions. We affix to these articles, in reproducing
them, the consecutive numbers of the present work, indicating, however, at
the end the number they bear in the convention.
1693. Hospital ships, equipped wholly or in part at the expense
of private individuals or officially recognized relief societies, shall be
likewise respected and exempt from capture, if the belligerent Power
to whom they belong has given them an official commission and has
notified their names to the hostile Power at the commencement of or
during hostilities, and in any case before they are employed.
These ships must be provided with a certificate from the competent
authorities declaring that the vessels have been under their control while
fitting out and on final departure. (Art. 2.)
1694. Hospital ships, equipped wholly or in part at the expense of
private individuals or officially recognized societies of neutral coun-
tries, shall be respected and exempt from capture, on condition that
they are placed under the control of one of the belligerents with the
previous consent of their own Government and with the authorization
of the belligerent himself, and that the latter has notified their names
to his adversary at the commencement of or during hostilities, and in
any case, before they are employed. (Art. 3.)
1695. The ships mentioned in Articles 1, 2, and 3 shall afford relief
and assistance to the wounded, sick, and shipwrecked of the belliger-
ents without distinction of nationality.
The Governments undertake not to use these ships for any military
purpose.
These vessels must in no wise hamper the movements of the com-
batants.
RIGHTS OF BELLIGERENTS
617
During and after an engagement they will act at their own risk and
peril.
The belligerents shall have the right to control and search them;
they can refuse to help them, order them off, make them take a certain
course, and put a commissioner on board; they can even detain them,
if important circumstances require it.
As far as possible, the belligerents shall enter in the log of the hos-
pital ships the orders which they give them. (Art. 4.)
1696. Military hospital ships shall be distinguished by being
painted white outside with a horizontal band of green about a meter
and a half in breadth.
The ships mentioned in Articles 2 and 3 shall be distinguished by
being painted white outside with a horizontal band of red about a
meter and a half in breadth.
The boats of the ships above mentioned, as also small craft which
may be used for hospital work, shall be distinguished by similar paint-
ing.
All hospital ships shall make themselves known by hoisting, with
their national flag, the white flag with a red cross provided by the Geneva
Convention, and, further, if they belong to a neutral State, by flying
at the mainmast the national flag of the belligerent under whose con-
trol they are placed.
Hospital ships which, in the terms of Article 4, are detained by the
enemy, must haul down the national flag of the belligerent to whom
they belong.
The ships and boats above mentioned which wish to ensure by right
the freedom from interference to which they are entitled, must, subject
to the assent of the belligerent they are accompanying, take the neces-
sary measures to render their special painting sufficiently plain.
(Art. 5.)
1697. The distinguishing signs referred to in Article 5 can only
be used, whether in time of peace or war, for protecting or indicating
the ships therein mentioned. (Art. 6.)
1698. In the case of a fight on board a war-ship, the sick wards
shall be respected and spared as far as possible.
The said sick wards and the matériel belonging to them remain sub-
ject to the laws of war; they cannot, however, be used for any pur-
pose other than that for which they were originally intended, so long
as they are required for the sick and wounded.
618
INTERNATIONAL LAW CODIFIED
The commander, however, into whose power they have fallen may
apply them to other purposes, if the military situation requires it,
after seeing that the sick and wounded are properly provided for.
(Art. 7.)
1699. Hospital ships and sick wards of vessels are no longer en-
titled to protection if they are employed for the purpose of injuring
the enemy.
The fact of the staff of the said ships and sick wards being armed for
maintaining order and for defending the sick and wounded, and the
presence of wireless telegraphy apparatus on board, is not a sufficient
reason for withdrawing protection. (Art. 8.)
1700. Belligerents may appeal to the charity of the commanders
of neutral merchant ships, yachts, or boats to take on board and tend
the sick and wounded.
Vessels responding to this appeal, and also vessels which have of
their own accord rescued sick, wounded or shipwrecked men, shall
enjoy special protection and certain immunities. In no case can
they be captured for having such persons on board, but, apart from
special undertakings that have been made to them, they remain liable
to capture for any violations of neutrality they may have committed.
(Art. 9.)
1701. The religious, medical, and hospital staff of any captured
ship is inviolable, and its members cannot be made prisoners of war.
On leaving the ship they may take away with them the objects and
surgical instruments which are their own private property.
This staff shall continue to discharge its duties while necessary, and
can afterwards leave, when the commander-in-chief considers it
possible.
The belligerents must guarantee to the said staff, when it has fallen
into their hands, the same allowances in pay which are given to the
staff of corresponding rank in their own navy. (Art. 10.)
1702. Sailors and soldiers on board, when sick or wounded, as well
as other persons officially attached to fleets or armies, whatever their
nationality, shall be respected and tended by the captors. (Art. 11.)
1703. Any war-ship belonging to a belligerent may demand that
sick, wounded, or shipwrecked men on board military hospital ships,
hospital ships belonging to relief societies or to private individuals,
merchant ships, yachts, or boats, whatever the nationality of these
vessels, should be handed over. (Art. 12.)
RIGHTS OF BELLIGERENTS
619
1704. If sick, wounded, or shipwrecked persons are taken on board
a neutral war-ship, every possible precaution must be taken that they
do not again take part in the operations of the war. (Art. 13.)
1705. The shipwrecked, wounded, or sick of one of the belliger-
ents who fall into the power of the other belligerent are prisoners of
war. The captor must decide, according to circumstances, whether
to keep them, send them to a port of his own country, to a neutral
port, or even to an enemy port. In this last case, prisoners thus re-
patriated cannot serve again while the war lasts. (Art. 14.)
1706. The shipwrecked, sick, or wounded, who are landed at a
neutral port with the consent of the local authorities, must, unless an
arrangement is made to the contrary between the neutral state and the
belligerent states, be guarded by the neutral state so as to prevent them
from again taking part in the operations of the war.
The expenses of tending them in hospital and interning them shall
be borne by the state to which the shipwrecked, sick, or wounded persons
belong. (Art. 15.)
1707. After every engagement, the two belligerents, so far as mili-
tary interests permit, shall take steps to look for the shipwrecked,
sick, and wounded, and to protect them, as well as the dead, against
pillage and ill treatment.
They shall see that the burial, whether by land or sea, or cremation
of the dead shall be preceded by a careful examination of the corpse.
(Art. 16.)
1708. Each belligerent shall send, as early as possible, to the au-
thorities of their country, navy or army the military marks or docu-
ments of identity found on the dead and the description of the sick
and wounded picked up by him.
The belligerents shall keep each other informed as to internments
and transfers as well as to the admissions into hospital and deaths
which have occurred among the sick and wounded in their hands.
They shall collect all the objects of personal use, valuables, letters,
etc., which are found in the captured ships, or which have been left
by the sick or wounded who died in hospital, in order to have them
forwarded to the persons concerned by the authorities of their own
country. (Art. 17.)
1709. The provisions of the present Convention do not apply except
between contracting Powers, and then only if all the belligerents are
parties to the Convention. (Art. 18.)
620
INTERNATIONAL LAW CODIFIED
1710. The commanders-in-chief of the belligerent fleets must see
that the above articles are properly carried out; they will have also to
see to cases not covered thereby, in accordance with the instructions
of their respective Governments and in conformity with the general
principles of the present Convention. (Art. 19.)
1711. The signatory Powers shall take the necessary measures for
bringing the provisions of the present Convention to the knowledge of
their naval forces, and especially of the members entitled thereunder
to immunity, and for making them known to the public. (Art. 20.)
1712. The signatory Powers likewise undertake to enact or to
propose to their legislatures, if their criminal laws are inadequate,
sures necessary for checking in time of war individual acts
of pillage and ill-treatment in respect to the sick and wounded in the
fleet, as well as for punishing, as an unjustifiable adoption of naval
and military marks, the unauthorized use of the distinctive marks
mentioned in Article 5 (rule 1696) by vessels not protected by the pres-
ent Convention.
They will communicate to each other, through the Netherland Gov-
ernment, the enactments for preventing such acts at the latest within
five years of the ratification of the present Convention. (Art. 21.)
1713. In the case of operations of war between the land and sea
forces of belligerents, the provisions of the present Convention do not
apply except between the forces actually on board ship. (Art. 22.)
All the states represented at The Hague have subscribed this agreement, ,
but China made a reservation as to article 21 (rule 1712); Great Britain, as
to arts. 6 and 21 (rules 1697, 1712), and with a declaration that article 12 (rule
1703) should be considered as limited to the sole case of combatants rescued
during or after a naval engagement in which they have taken part; Persia,
under reservation of the right to use the Lion and Red Sun instead of the
Red Cross; and Turkey, under reservation of the right to use the Red Crescent.
TITLE XV
THE CAPTURE OF ENEMY MERCHANT SHIPS AND
CARGO
INVIOLABILITY OF PRIVATE PROPERTY
1714. According to proper laws of war, the property (ships or
cargo) of private persons of the enemy state should be deemed
inviolable in naval as well as land war, and it is the duty of all
civilized states to make this rule obligatory through a conventional
agreement, by declaring enemy merchant ships and their enemy
cargoes to be inviolable, save when the ships clearly perform hostile
acts and take an active part in the war under any form of assist-
ance to the enemy fleet.
It is a great mistake and anomaly to implicate in a naval war private per-
sons not involved in it, while the opposite doctrine prevails in land war. It
is claimed that naval war cannot attain its object through the mere destruc-
tion of the naval forces of the enemy, but that it must besides ruin his eco-
nomic and commercial power by attacking his shipping. This is a very weak
argument for attempting to justify a barbarous practice. How, indeed, by
causing actual and immediate damage to private persons, could the economic
and commercial power of the State be weakened during the course of hostilities?
We have treated this question in detail in our work Trattato di Diritto inter-
nazionale pubblico, v. III, 3d ed., chap. X, § 11, pp. 195 et seq.
The great majority of writers favor the doctrine of the inviolability of
private property in time of naval war. We may refer to the very complete
bibliographical notes of Bonfils-Fauchille, 3d ed., § 1281; Oppenheim, op. cit.,
v. II, $$ 173 and 180; de Boeck, De la propriété privée ennemie sous pavillon
ennemi. See also the proceedings of the Institute of International Law at
the session of The Hague of 1875 and of Zurich of 1877. For historical par-
ticulars, see, Nys, Droit international, les principes, les théories, les faits, v. III,
chap. X; La guerre maritime et la propriété privée ennemie sous pavillon ennemi.
This doctrine is already accepted in practice by the most civilized states:
it is expressly sanctioned in some treaties, among which we may note the
treaty concluded between Italy and the United States on February 22, 1871.
It is to be hoped that public opinion will succeed in overcoming the stubborn
resistance of certain countries, among which Great Britain is especially no-
torious, and that ultimately an international agreement will proclaim the in-
violability of enemy private property under the enemy flag.
At the first Hague Conference of 1899, the question of the inviolability of
private property was considered; but the states represented confined them-
selves to expressing the desire that the proposition should be referred for ex-
621
622
INTERNATIONAL LAW CODIFIED
amination to the next Conference. The question was again called up in 1907,
but owing to serious differences of opinion and conflict of the respective in-
terests, it was not discussed. Nevertheless, the wish was expressed that the
program of the next Conference should be to draw up regulations of the laws
of naval warfare, among which is comprised our proposal, which it is hoped
states will finally agree to. This would be easy, if Great Britain would give
up her traditional policy in the matter which maintains the utility of destroy-
ing maritime commerce during war and adopt the opinion of British jurists,
who themselves disapprove it. See the important article of Hall in the Con-
temporary Review, v. XXVI, pp. 735 et seq.
(For an illuminating account by Harold Scott Quigley of the traditional
policy of the United States in favor of the immunity from capture of private
property at sea, cf. 11 Amer. Journ. of Int. Law (1917), pp. 820-838.-
Transl.)
CAPTURE ACCORDING TO THE PRESENT CUSTOMS OF NAVAL WARFARE
1715. According to the present abnormal custom of naval war-
fare, it is to be regarded as lawful for belligerents to seize enemy
merchant ships and the enemy cargo on board, and to exercise
the right of capture with the purpose of confiscating both ship and
cargo, since under the laws and customs actually governing the
matter, the competent tribunal may declare the capture lawful
and the prize valid.
CHARACTERISTICS OF THE RIGHT OF CAPTURE
1716. The right of capture as now admitted according to the
abnormal usages of naval warfare, must be considered as an ex-
ceptional right, in derogation of "common” law.
It should, therefore, be considered in principle subject to re-
strictions likely to be favorable to those against whom it is invoked,
rather than to greater extensions with a view to supporting the
pretensions of the belligerent who seeks to appropriate and con-
fiscate the prize.
1717. Any arbitrary exercise of the right of capture, although
it is sought to justify it on the pretext of reprisals or reciprocity,
must be considered as contrary to the true laws of war.
WHEN CAN THE RIGHT OF CAPTURE BE EXERCISED?
1718. The right of capture can only be exercised after a formal
declaration of war and the opening of hostilities.
Hostile merchant ships which happen to be in the ports of a
CAPTURE OF ENEMY MERCHANT SHIPS AND CARGO
623
belligerent when hostilities break out or which, having left their
last port before the commencement of the war, have entered a
hostile port not knowing that a state of war existed, ought not to
be subject to capture and confiscation, but should be given a safe
conduct for proceeding to their port of destination, as soon as
they can be allowed to depart without prejudice to the exigencies
of war.
It is the duty of belligerents to consider as obligatory, and not
merely as desirable, the non-application of the exceptional right
of naval warfare, which legitimates capture, to merchant ships
which have entered their ports under the protection of the “com-
mon" law in force in time of peace.
Compare rules 1448 et seq.
This principle may be regarded as accepted under customary law. France
and Great Britain acted accordingly during the war of 1854 with respect to
Russian ships which were in French or British ports or were bound thereto,
and gave them a time limit within which to seek safety. The same procedure
was adopted by Prussia in 1866, by Russia and Turkey in 1877, by the United
States in 1898, and finally by Russia and Japan in 1904. We do not know
why the Conference of 1907 was satisfied with declaring merely as desirable
what it should have considered as an absolute duty. See article I of the Con-
vention given as a note under rule 1450.
WHO MAY EXERCISE THE RIGHT OF CAPTURE AND WHERE
1719. The right to capture enemy merchant ships belongs to
the war vessels of the belligerents and to the vessels attached to
the fleet and authorized to exercise the right of war.
In cases where the fitting out of privateers may be regarded as
duly authorized, the right to capture private merchandise under
the enemy flag shall similarly belong to privateers to which the
belligerent sovereign has granted letters of marque, subject to
the conditions imposed by those letters.
1720. A merchant vessel attacked by an enemy war vessel or
privateer may always defend itself by every means and if it should
succeed in capturing the ship which attacked it, it may claim the
right of prize capture.
1721. The right of prize capture may be exercised in the ter-
ritorial waters of the belligerents and on the high sea. It cannot
be exercised in the territorial waters of neutral Powers, nor in
neutralized waters.
624
INTERNATIONAL LAW CODIFIED
A belligerent may, however, continue in those waters against
an enemy merchant ship an attack and pursuit for purpose of
capture which had commenced on the high sea and had been
prosecuted without interruption.
OBJECT OF CAPTURE
1722. A belligerent may properly exercise the right of capture:
(a) With respect to an enemy merchant ship;
(6) With respect to merchandise loaded on board an enemy
merchant ship, if the owner of the merchandise can be considered
an enemy.
WHEN
MERCHANT VESSEL MAY BE REGARDED AS AN ENEMY
1723. The nationality of a vessel as ascertained by the ship's
papers and by the flag it has a legal right to fly, must determine its
legal status as an enemy or not.
1724. The nationality of the ship's owners cannot have any in-
fluence at the time when the belligerent, in conformity with exist-
ing usages, exercises his right to seize a vessel then entitled to fly
the enemy flag. If the ship, however, belongs partly to citizens
of neutral countries, that fact ought to be taken into account in
the legal proceedings relating to the validity of the prize.
Our rule would apply to a ship which, carrying the enemy flag, belongs
wholly or in part to neutrals who prove beyond doubt their right of ownership.
Considering that, in principle, the right of capture must be regarded as an
exceptional right, whose scope should be restricted rather than extended, it
follows that when a ship belongs wholly or in part to a neutral, a belligerent
cannot confiscate it to his profit. The opposite principle is adopted by the
courts, and was especially sanctioned by the judgment of the French Prize
Court of December 22, 1870, in the Turner case, which states that from the
viewpoint of the right of capture, the ownership of the vessel is wholly in-
divisible, and that neutral citizens, co-owners of the ship, cannot claim against
the captor their share of property in a vessel navigating under the enemy
flag. This decision is based upon a conception opposite to ours, which in fact
deems it necessary not to restrict but to extend the right of capture. (Compare
rule 1716.)
The opposite view was taken with more reason in the case of the ship La
Palme, during the Franco-German war. That vessel, which carried the Ger-
man flag, was seized, although, in fact, belonging to the Mission Society of
Basel. The Prize Court had condemned the ship, but the Council of State
reversed the decision on the ground that for Swiss owners of vessels, naviga-
tion under a foreign flag is a case of necessity, since Switzerland has no mari-
time flag. Rivier, Droit des gens, II, p. 345.
CAPTURE OF ENEMY MERCHANT SHIPS AND CARGO
625
(Municipal law furnishes the test of title to fly the flag. In the United
States, it is ownership by American citizens.-
Transl.)
1725. Any vessel duly flying the enemy flag may be regarded
as an enemy, in determining the legality of the seizure or the obli-
gation to make compensation.
On the other hand, in order to determine the validity of the prize,
it is necessary to ascertain the essential fact of the legal status of
the owners of the ship and of the cargo.
1726. A belligerent cannot regard as an enemy and seize as
such a vessel navigating under a neutral flag, although the prop-
erty of a citizen of the enemy state before or even after the out-
break of the war, if it was really sold to a neutral, and it so appears
clearly from the ship's papers, so as to exclude all possibility of
doubt as to the transfer of ownership.
When the sale of a merchant vessel belonging to a citizen of the enemy state
is made to a citizen of a neutral state, either prior to or after the outbreak of
the war, and while in transit, the belligerent cannot disregard the effects of
the transfer of property, which is lawful in time of war.
Perels quotes the report of the Attorney-General of the United States, who
said: “Neutrals have the right to purchase the property of belligerents, whether
ships or any other thing, during war, and any rule of any one state in op-
position to this principle, which is conformable to the rules of international
law, must be held contrary to public law and in pure derogation to the sovereign
authority of every sovereign state.” Opinion of May, 1855, in Soether's
Recueil, nouv. série, I, n. 156 and of August 7, 1854, II, n. 182, given by Perels,
op. cit., $ 36. Compare, Holland, Prize Law, § 19, and Oppenheim, op. cit., II,
$ 199.
Of course, the whole proposition is based upon the fact that the bill of sale
is bona fide and that property was really transferred without reservation to
the neutral so as to exclude any element of fraud from the sale.
(While the law of the United States and of Great Britain is in accord with
that of the vast majority of states to the effect that a sale of a vessel after the
outbreak of war, from a belligerent citizen to a neutral, if bona fide and ir-
revocable, is valid, France is still numbered among the few countries which
regard such a sale as ipso facto void, its law being therefore opposed to the
general rule, which is approved by Fiore. See the case of The Dacia, captured
by France, March 1, 1915.--Transl.)
NATIONAL SHIPS CAPTURED BY THE ENEMY AND RETAKEN
1727. A belligerent has no right to consider as an enemy vessel
a national merchant ship captured by the other belligerent, and
retaken by him before a Prize Court has passed on the ownership
of the vessel and condemned it as enemy property.
626
INTERNATIONAL LAW CODIFIED
1728. A national merchant ship captured by the enemy, even
if taken by him to his ports, when retaken by a national war vessel,
must be restored to its owner without subjecting him to the pay-
ment of any indemnity.
When retaken by a privateer duly commissioned, the owner
could be made to pay compensation to the privateer.
It can never be considered as enemy property nor subject to
the same rules as an enemy ship captured by a privateer.
The Italian Merchant Marine Code provides as follows in article 221:
“A national or foreign merchant ship chartered by the State, which has
been retaken by a war vessel after having fallen into the power of the enemy,
shall be restored to the owner, who shall not be subject to any payment of
compensation.
"If the chartered ship has been retaken by a national merchant ship, the
latter shall receive a reward to be paid out of the State Treasury, equal to a
fourth or sixth part respectively of the property recovered, according to the
various cases contemplated in the first part of article 219."
WHEN IS MERCHANDISE TO BE CONSIDERED ENEMY?
1729. All merchandise loaded on board a merchant ship duly
flying the flag of the enemy state must be considered as enemy
cargo and as such subject to the right of prize capture, provided
it is the property of a person who, by his legal status, must be
regarded as a subject of the enemy state.
1730. Merchandise belonging to a neutral when taken on board
an enemy ship consigned to a person who, by his legal status, must
be deemed a citizen of the enemy state, may be subject to the right
of prize capture as enemy property, when the transfer of owner-
ship of the merchandise may be considered as having taken place
at the time of shipment but not if the transfer of title occurs on
delivery at the place of destination.
Such determination of ownership may in a certain measure de-
pend upon whether the merchandise shipped travels at the risk
and peril of the shipper or the consignee.
The general principle res perit dominio may as a rule be applied; but the cir-
cumstance of the risk cannot always be decisive in determining ownership. It
may happen that the seller has assumed the risks even of things which have
become the property of the consignee. It is necessary, therefore, to examine
the contract in order completely to settle the matter, which may have an
influence on the decision as to the validity of the prize. As regards seizure,
it may be admitted that a belligerent has the right to seize as enemy property
all merchandise consigned to a national of the enemy state.
CAPTURE OF ENEMY MERCHANT SHIPS AND CARGO
627
ENEMY CHARACTER OF SHIP AND MERCHANDISE
1731. A belligerent may assimilate to an enemy vessel any ship,
of whatever nationality and flag, which takes part in the war by
performing acts of hostility and by lending assistance to his ad-
versary.
He may therefore apply to it and to the merchandise on board
belonging to its owner or charterer, the laws and customs of war
applicable to enemy ships.
Albericus Gentilis held that any ship ought to be considered as an enemy
which becomes so of its own accord. In undertaking to indicate when for-
eigners (neutrals) may be regarded as enemies, he said: “It is necessary to
bear in mind the cause of the act, and as regards the foreigner (neutral), it
must be ascertained that he does not do anything likely to be of advantage
to the enemy, which would make an enemy of himself not unlike any other
who might help the enemy. Any one must be considered as an enemy who
does what pleases the enemy, and furnishes his army with things necessary for
Any one helps the enemy who by his co-operation makes him
bolder. That can be said of the Hanseatic ships supplying the Spaniards
with provisions and other war supplies.” Albericus Gentilis, De jure belli,
cap. XXII, no. 5. See the Italian translation of Fiorini, p. 353.
Everybody must recognize that in this quotation of Albericus Gentilis,
written before Grotius, is found in condensed statement the true doctrine of
neutrality. Those who have not read the remarkable work of our country-
man should not fail to do so in order to give him the credit he deserves.
war.
SHIPS AND PROPERTY EXEMPT FROM CAPTURE
1732. All the states which have subscribed the Paris treaty of
1856 or have adhered thereto must consider themselves legally
bound not to exercise the right of capture in regard to neutral
ships and neutral merchandise on board a captured enemy ship
nor in regard to enemy property on board a neutral ship, and to
consider the neutral ship and merchandise and enemy merchandise
on board a neutral ship, as inviolate, except when the neutral
ship is found guilty of violating à blockade or when the mer-
chandise carried may be regarded as contraband of war.
The basis of our rules is the declaration signed by the states represented at
Paris, which is an integral part of the treaty concluded between them on
March 30, 1856:
“2. The neutral flag covers enemy goods, excepting only contraband of war;
“3. Neutral goods cannot be confiscated on board an enemy vessel, except-
ing only contraband of war.”
1733. As regards the states not signatory to the treaty nor ad-
628
INTERNATIONAL LAW CODIFIED
hering to it, the two rules established by the Declaration of 1856
must be regarded as expressing rational principles of law, and they
must be recognized as having the binding force assigned to any
rule of natural justice.
In fact, it is to be regarded as conformable to the general principles of law,
not to be able to accomplish any act of hostility on neutral territory; to con-
sider a ship as a dependency of the state to which it belongs, and consequently
to have no right to capture enemy goods which happen to be on a neutral
ship; nor to have the right to implicate neutrals in the war by applying to
them the laws of war applicable to the enemy.
1734. Boats exclusively employed in coast fishing or in minor
local navigation, together with their rigging, tackle, appliances
and cargo, shall be considered as exempt from capture, according
to the rules of “common” law and those established by the second
Hague Conference of 1907.
This exemption shall cease as soon as they participate in hos-
tilities in any manner whatever.
The contracting states must agree not to take advantage of the
harmless character of these ships in order to use them for military
purposes while preserving their pacific appearance.
1735. Similarly, ships employed in religious, scientific or philan-
thropic missions are exempt from capture.
The two preceding rules reproduce articles 3 and 4 of Convention XI of
the General Act of The Hague of 1907 respecting certain restrictions upon the
exercise of the right of capture in naval warfare.
Hospital ships and those engaged in receiving the wounded and shipwrecked
must be considered as engaged in a philanthropic mission. Such ships are
exempt from capture on the part of the states which have signed the Hague
Convention of 1907.
Compare rules 1692 et seq.
PROPER RESTRICTIONS UPON THE EXERCISE OF THE RIGHT OF
CAPTURE
1736. It is the duty of belligerents not to subject to the laws of
war enemy ships which touch their coasts owing to a forced entry
or shipwreck.
It must always be deemed contrary to the principles of humanity,
natural justice and equity to take advantage of disasters of the
sea in order to subject to the rigors of the laws of war those who
have with difficulty been able to escape the dangers of the sea.
CAPTURE OF ENEMY MERCHANT SHIPS AND CARGO
629
All writers do not admit this rule: Among those favorable to it, we find
Bluntschli, rule 668; Boeck, no. 198; Gessner, p. 14; Calvo, $ 2374. Among
those who reject it are: Hall, § 145; Massé, v. 1, no. 363; Ortolan, p. 321;
Perels, 8 37, Oppenheim, $ 189; Dupuis, no. 156.
1737. The right of capture must not be exercised with respect
to ships flying a flag of truce and charged with carrying to the
enemy a cartel or conveying communications; the rules governing
flags of truce in war on land must be applied to them, subject to
the same conditions.
Compare rules 1500 et seq.
1738. The right of capture must be considered as legally limited,
with respect to states which, by treaty, have undertaken in case
of war to abstain from exercising the right among themselves.
This rule, however, would no longer be applicable in case of
participation in the war by other states which have not signed
such a treaty and have not, when war commenced, undertaken
to comply with its provisions.
This conventional restriction upon the right of capture is found in the
treaty concluded February 28, 1871, between Italy and the United States:
"ART. 12.—The high contracting parties agree, that in the unfortunate
event of a war between them, the private property of their respective citizens
and subjects, with the exception of contraband of war, shall be exempt from
capture or seizure on the high seas or elsewhere, by the armed vessels or by
the military forces of either party; it being understood that this exemption
shall not extend to vessels and their cargoes which may attempt to enter a
port blockaded by the naval forces of either party."
1739. Similarly, the right of capture shall be considered as
legally restricted between states which, when war breaks out,
formally undertake reciprocally to abstain from exercising such
right in the course of hostilities.
There is a very important provision on this subject in the Italian Merchant
Marine Code, articles 211 and 212 of which read as follows:
“ART. 211.-The capture and seizure of the merchant ships of a hostile
nation by the war vessels of the State shall be abolished by way of reciprocity
with respect to Powers which shall adopt the same treatment in favor of the
national merchant marine.
Treatment by reciprocity may originate in local laws, diplomatic conven-
tions, or declarations made by the enemy before the outbreak of hostilities.
“ART. 212.-Capture and confiscation on account of contraband of war
shall be excepted from the provisions of the preceding article; in such case,
the offending ship shall be subject to the treatment of neutral ships violating
neutrality.
“Capture and confiscation for running an effective and declared blockade
shall likewise be excepted from the above provision."
630
INTERNATIONAL LAW CODIFIED
Under these provisions, Italy is bound toward other states to regard as
inviolable the private property of all belligerent Powers which have declared,
before the outbreak of hostilities, their intention of abstaining from capturing
the private property of Italian citizens.
MAIL STEAMERS AND CORRESPONDENCE
1740. It is to be considered as highly desirable that civilized
states should determine by common agreement that private ships
engaged in postal service between belligerent states and between
them and neutral states shall be neutralized and subject to the
same rules as the ships of neutrals, so far as the exercise of the rights
of war are concerned.
Should the belligerent deem it advisable, however, to interrupt
ordinary postal service between certain countries, the right to do
so through a previous declaration should not be denied to him.
In such case, mail steamers should always be allowed freely to
return to their country, and the laws of war ought to be applied
only to such of them as may subsequently have violated the pro-
hibition to continue mail service.
Immunity for mail steamers in time of war is stipulated in treaties con-
cluded between certain states. Thus, article 4 of the postal convention of
June 26, 1846, between Great Britain and Denmark reads as follows: "In
the event of war between Great Britain and Denmark, mail carrying ships
shall be free to continue their navigation without hindrance or annoyance, so
long as due notice shall not have been given by either one of the two govern-
ments that the service is to be suspended, in which case they shall be allowed
free return, under special protection, to their country.”
A similar clause is found in article 17 of the postal convention of
1833 between France and Great Britain.
1741. With respect to the states represented at the Hague in
1907, the following rules which they have adopted in common
agreement must be regarded as legally binding:
The postal correspondence of neutrals or belligerents, whatever its
official or private character may be, found on the high seas on board
a neutral or enemy ship, is inviolable. If the ship is detained, the
correspondence is forwarded by the captor with the least possible delay.
The provisions of the preceding paragraph do not apply, in case
of violation of blockade, to correspondence destined for or proceeding
from a blockaded port. (Art. 1.)
The inviolability of postal correspondence does not exempt a neutral
CAPTURE OF ENEMY MERCHANT SHIPS AND CARGO
631
mail steamer from the laws and customs of maritime war as to neu-
tral merchant ships in general. The ship, however, may not be searched
except when absolutely necessary, and then only with as much con-
sideration and expedition as possible. (Art. 2.)
These are articles 1 and 2 of convention XI of the General Act of the second
Hague Conference.
CAPTURE IN RELATION TO THE RIGHT OF PRIZE
1742. The capture or seizure of an enemy merchant ship and
of the enemy goods on board, when it may be considered as prop-
erly effected according to the laws and customs of war, must always
be deemed provisional and cannot have the effect of giving to the
belligerent the right to appropriate the captured ship and goods. It
must be considered as indispensable for that purpose to obtain
from a competent court a judgment sanctioning the validity of a
capture and of the prize, in conformity with the rules respect-
ing the lawfulness of maritime prizes set forth hereafter.
OCCUPATION OF MARITIME TERRITORY AND ITS EFFECTS
1743. Occupation of maritime territories, that is to say, of
gulfs, bays, ports, and territorial waters, is not possible except
where continental territory is occupied. In that case, the occupa-
tion shall always be subject to the laws and customs of war on
land.
TITLE XVI
CONVENTIONS GOVERNING WAR
WHO MAY CONCLUDE CONVENTIONS GOVERNING WAR
1744. The name convention of war is given to conventions
concluded between belligerents to regulate any act or relation
existing between them in time of war.
1745. Conventions providing for the general interests of armies
and regulating the exercise of the reciprocal rights of belligerents
in time of war can only be concluded validly by the supreme
authority in the State.
The military commanders of the two belligerent armies can
only conclude, within the limits of their powers, conventions pro-
viding for:
(a) The necessities of the armies under their authority;
(6) Matters which may concern eventual or temporary military
interests relating to operations of war.
Conventions of this kind relate particularly to the reception
of flags of truce, the exchange of prisoners, and the burial of the
dead; suspension of hostilities, armistices, capitulations and
agreements of any kind for the purpose of providing for the even-
tual necessities of war and having for their object certain well-
defined military interests.
1746. Every convention of war must be scrupulously re-
spected by belligerents and executed with integrity and in good
faith.
It shall be considered as contrary to military honor to violate
promises made to the enemy and agreements concluded verbally.
Our countryman Albericus Gentilis treats of conventions of war in chapters X
and following of book II of his De jure belli and says: “In any war many
things are done by means of arms but quite a number by means of compacts
and conventions," and he expounded the principles which ought to govern
the value of agreements between belligerents respecting truce, safe-conduct,
the redemption of prisoners and hostages.
632
CONVENTIONS GOVERNING WAR
633
SUSPENSION OF ARMS
1747. Suspension of arms consists in the interruption, for a pur-
pose of general interest, of war operations for a fixed and very
limited period (a few hours or at most a few days) in a particular
place.
This may include the temporary cessation of hostilites to bury
the dead on the field of battle; to effect an exchange of prisoners or
the sick; to negotiate an armistice; to give time, in the event of
bombardment, to the inhabitants of a fortified town to leave it
without danger.
1748. The commanders of the hostile armies and any troop
commander, acting separately and independently of the rest of the
army, shall have the right to demand or grant a suspension of
hostilities.
Such suspension may also take place by tacit understanding; but
in that case it does not produce the same legal consequences and
reciprocal obligation as the suspension of arms by express agree-
ment.
1749. A commander who desires to request a suspension of
arms shall be entitled to send a messenger with a flag of truce
supplied with a declaration authorizing him to treat in the com-
mander's name with the hostile commander. The latter shall not
be bound to interrupt the battle or attack nor any other operations
merely because of the appearance of the bearer of the flag of truce
authorized to negotiate a suspension; he shall merely be obliged
to comply with the rules governing the sending and receiving of
flags of truce.
1750. The commander who receives a flag of truce may accept
or decline the proposal to suspend hostilities. It shall, however,
be considered contrary to military honor to refuse the suspension
of arms requested for the sake of humanity, especially when the
commander shall have no reason to suspect the good faith of the
enemy and when no inconvenience or disadvantage from the view-
point of military operations can arise from granting the request.
(Compare rule 1608.)
634
INTERNATIONAL LAW CODIFIED
CONSEQUENCES OF THE SUSPENSION OF ARMS
1751. In case of a suspension of arms, provisions as to its dura-
tion and execution shall be precisely fixed either in writing or
verbally. The military authorities shall clearly determine the
respective obligations and reciprocal guaranties, the movements
of troops, and especially state exactly the respective positions, so
as to avoid any ambiguity and doubt.
1752. Once the suspension of arms is concluded, the command-
ers shall be bound to bring it at once to the knowledge of their
troops and any unjustified delay shall be considered as a treacherous
violation of the convention.
1753. Cessation of hostilities on the part of the hostile troops
shall only be compulsory from the time their respective chiefs
have directly brought to their knowledge the agreement to suspend
hostilities.
Nevertheless, the commander of the troops who shall have been
notified of the convention shall have the right to bring it to the
knowledge of the commander of the hostile troops confronting
him. The latter, while not bound at once to execute the agree-
ment thus unofficially conveyed, must, however, take account of
such notification and execute the operations in progress so as not
to hinder the purpose of the suspension and at the same time try
to get official communication of the agreement from his direct
superior.
1754. When the time limit fixed by the convention shall have
expired, hostilities may be resumed without any other condition,
save in the event of extension by express agreement.
1755. In case of ascertained violation by the enemy of the con-
ditions agreed upon, hostilities may be resumed at once and the
suspension of arms shall thereby be considered as not existing.
CAPITULATION
1756. A capitulation of war is a convention by which there are
stipulated the conditions of the surrender of a fortress, of a fortified
position or of an army corps or body of troops, which have ceased
resistance. It may be concluded between the commander of the
fortress, fortified position, or troops obliged to surrender and the
hostile commander who directs the assault or battle.
CONVENTIONS GOVERNING WAR
635
1757. The capitulation is only valid when drawn up in writing
by the commanders and signed by them. The conditions agreed
upon between the respective military authorities charged with
fixing the bases of the capitulation cannot be deemed effective
unless approved and ratified by the commanders.
1758. It must be considered contrary to the usages of war
between civilized peoples to refuse to grant the request for a sus-
pension of arms made by the commander of a fortress or army corps
with the declaration that he wishes to capitulate, whenever there
is no danger in granting it and there exists no good reason to sus-
pect the good faith of the enemy.
OBJECT OF THE CAPITULATION
1759. The commanders shall have the power to fix the conditions
of the capitulation. They shall only be entitled, however, to adopt
conditions within the limits of their powers and the purpose of
the capitulation itself.
These include stipulations relating to the treatment of troops
which capitulate; the mode of relinquishment of the fortress and
the time allowed to evacuate it; the manner in which the delivery
to the enemy of arms as well as war material, etc., shall take place;
the mode of occupation by the latter of the fortress and its annexes
or of military positions; and everything relating to military opera-
tions and to the condition of the troops and property belonging
both to the soldiers and to the inhabitants of the place compelled
to capitulate.
The commanders shall have no right to enter into any stipula-
tions concerning the political or administrative status of the
capitulating country or of another territory belonging to the
vanquished state. Accordingly, all provisions relating to such
matters shall be deemed inoperative.
The Italian legislature in its service regulations in time of war, 1882, fixed
as follows the objects of capitulation:
"Art. 1155.--The following shall form the object of negotiations in capitu-
lations: the treatment of the troops which capitulate, the hour at which such
troops shall leave the place and the manner in which they shall evacuate
their positions, the manner in which the delivery of arms, horses, and war
material which the capitulating troops must surrender shall take place, the
mode of occupation of the fortress and its annexes or of positions on the part
of the victorious troops, the latter's obligations towards the persons and prop-
erty of non-belligerents, towards hospitals, public establishments, etc.
636
INTERNATIONAL LAW CODIFIED
“The contracting parties shall not be free to insert provisions relating to
the situation or to the political or administrative status of the capitulating
fortress or of any other territory."
Calvo, in his Dictionnaire de droit international, determines the objects of
capitulation, and then adds: “ but (there shall be) no stipulation relating to
the political constitution and the administration of the capitulating city"
(p. 123).
Considering these principles as established by "common” law, the reason-
ing of the partisans of the Pope's rights appears to have no serious ground.
They base themselves in effect upon the fact that the capitulation signed on
the 20th of September, 1870, between the commanders of the Italian and Pon-
tifical troops relative to the surrender of Rome, does not include the Mount
Vatican, the Castel Sant'Angelo and the “Citta Leonina,” to contend that
the Pope's sovereignty was reserved as to that portion of the territory. They
forget that the military commanders were without power to stipulate anything
in regard to the political and administrative status of the territory compelled
to capitulate.
CONSEQUENCES OF THE CAPITULATION
1760. All the conditions agreed upon in the capitulation, which
do not exceed the powers of the commandants, shall be faithfully
observed and deemed obligatory upon the State just like any obli-
gation assumed by a public official in the exercise of his public
duties.
It shall, however, be considered as contrary to military honor
and as an arbitrary and excessive proceeding to impose dishonor-
able conditions on a body of troops compelled to capitulate or on
their commander.
1761. When a belligerent has imposed and obtained an uncon-
ditional capitulation he may exercise his rights with respect to
persons, to the fortress or fortified position and to property within
the limits of the laws and customs of war.
It shall never be permissible to put to death the commander or
the soldiers, even when they have offered a stubborn resistance;
it shall merely be permissible to declare them prisoners according
to the usages of war.
In regard to property, the victor has the same rights as in the
case of military occupation of the hostile country.
1762. The capitulation shall be considered valid and operative
with all its necessary effects as regards the state against which it
has been stipulated. Even when the commander of a fortress or of
a body of troops has surrendered unconditionally without being
compelled thereto by necessity, the sovereign may remand him
CONVENTIONS GOVERNING WAR
637
to a court-martial to account for his conduct, but he cannot
disregard the effectiveness of the capitulation concluded by the
officer.
1763. The commander of the fortress or fortified position who
has capitulated must see that after the capitulation his troops
do not destroy or damage in bad faith the defense works, nor carry
away the arms and ammunition in their possession which must
be turned over to the victor. Any destruction or wilful damage
on the part of the troops after the conclusion of the capitulation
shall be regarded as committed in bad faith and in violation of
military honor.
OBLIGATIONS ARISING FROM A UNILATERAL ACT
1764. Military honor requires that commanders of armies or
army corps shall strictly fulfill the engagements they have form-
ally entered into by means of proclamations, formal promises and
unilateral acts of whatsoever nature.
It shall be regarded as an act of veritable treachery for a military
commander to violate his engagements formally undertaken.
SAFE-CONDUCT-LICENSES
1765. A safe-conduct consists in the permission given in writing
by a commander to one or more persons to cross the zone of ter-
ritory occupied by troops without being liable to any search or
molestation.
License is the permission to undertake certain specific acts
which as a rule are to be considered as prohibited according to the
laws and customs of war and the provisions of martial law pro-
claimed by a commander in a certain locality.
1766. A safe-conduct may be temporary or permanent. The
former is only valid for the time therein mentioned; the latter is
valid as long as the war lasts or until annulled or revoked.
1767. A safe-conduct properly delivered by a competent au-
thority shall be considered as subject to the following rules:
(a) When given to enable the holder to proceed to a certain
place, it also includes permission to return therefrom, provided
this is within the purposes of the safe-conduct;
638
INTERNATIONAL LAW CODIFIED
(6) Permission to leave a certain place implies also that the
holder shall be protected during the trip so long as he shall not go
beyond the limits of the occupied territory or the lines of the troops;
(c) The safe-conduct is personal only and shall not be considered
as applying to persons of the incumbent's family except when
expressly so stated;
(d) The holder shall not be free to transport merchandise or
other objects without special permission;
(e) The safe-conduct granted to a class of persons (newspaper
correspondents, officers of neutral Powers following the operations
of war, etc.) shall be understood to comprise all persons capable
of proving that they belong to the said class;
(f) The safe-conduct granted to the diplomatic agent of a neu-
tral Power shall be deemed to include all persons who, under in-
ternational usages, belong to his official suite.
1768. Any person who has obtained a safe-conduct shall be
bound strictly and faithfully to abide by its provisions. Should
he violate or take undue advantage of his permission in a manner
detrimental to the belligerents, he could be treated as an enemy
and subjected to the laws of war.
1769. A safe-conduct may be withdrawn by any authority
superior to the granting authority. The revocation, however,
must be notified to the officer who issued it and to the incumbent,
so that the latter may adopt any measures that circumstances
may suggest to protect himself.
1770. A safe-conduct granted for a certain period expires
automatically at the time indicated. Should the person to whom
it is granted be prevented, however, by force majeure from getting
completely out of the territory occupied by the troops, when the
time expires, the military authorities, after having verified the
circumstances of the case, ought to take such circumstances and
the purpose of the authorization into account and consider such
person as still protected by the safe-conduct.
SAFEGUARD
1771. Safeguard is a concession on the part of a belligerent,
declaring certain persons or places to be relieved from the laws of
war and covered by a special protection.
CONVENTIONS GOVERNING WAR
639
1772. A belligerent who has granted safeguard to establish-
ments, institutions and places devoted to a public service must
also consider as immune any persons connected with the man-
agement of these establishments. He must even respect enemy
soldiers who may be there, and may not declare them prisoners of
war, but shall provide them with a safe-conduct to rejoin their
regiments.
ARMISTICE
}
1773. An armistice is a convention concluded by the com-
manders-in-chief of the hostile armies or by the sovereigns of the
belligerent states, the purpose of which is the temporary cessation
of hostilities in the whole theater of war. Should this convention
be limited to a particular area, it would be known as a truce.
1774. An armistice must be considered as designed to provide
an opportunity, while it lasts for an agreement on peace conditions.
In the meantime, it shall not be permissible to alter essentially the
respective positions of the belligerents or to undertake military
operations likely to modify the reciprocal situation of the armies
or to affect the final outcome of the war.
1775. An armistice may be concluded for a time either fixed
or indeterminate. In the latter case, it shall be fully operative
until denounced by one of the belligerents.
Nevertheless, even when the armistice shall have been concluded
for an indeterminate period or shall have been extended indefinitely,
it can never be assimilated to peace, nor can the state of war be
considered as terminated.
The principle just set forth is designed to establish the fact that an armistice,
even when long protracted, cannot be assimilated to peace. Suspension of hos-
tilities in the whole theater of war is one thing; concluding peace which im-
plies immediate cessation of the application of the law of war, is another. An
armistice, however long protracted, is not peace. So long as peace is not
concluded, hostilities may be renewed—it would not require either a new ob-
ject of dispute, new formalities, or a new declaration of war; notification of
the ending of the armistice would be sufficient to renew and continue the hos-
tilities interrupted. It is necessary to bear these principles in mind, because
both in the relations of public internal law and in those of international law,
during an armistice, however long protracted, the law of war, not the law of
peace, must be applied..
640
INTERNATIONAL LAW CODIFIED
REQUISITES OF AN ARMISTICE
1776. An armistice must fulfill all the essential conditions of a
treaty and can therefore only be valid if concluded by persons
fully competent to do so.
1777. The commanders-in-chief of the belligerent armies must
be considered as possessing the power to conclude an armistice.
Should they have concluded it subject to the ratification of the
head of the State, it would provisionally be fully operative during
the time fixed by the commanders themselves for the exchange of
ratifications.
1778. The armistice convention must be considered as perfected
at the time of its concludion and signature, subject to the provisions
of the preceding rule.
It expires at the end of the time established in the convention
which shall be fixed by counting the dies a quo.
1779. The contracting parties must clearly and precisely de-
termine the conditions of the armistice, especially as regards:
(a) The day and hour from which the armistice shall commence
and its duration;
(6) The principal lines of the respective positions of the bellig-
erents and all other points calculated to determine the situation
of the armies and to establish what is to be prohibited or allowed
during the armistice;
(c) The determination of the time to elapse between the de-
nunciation of the armistice by one of the belligerents and the re-
newal of hostilities, should the duration of the armistice not be
fixed.
RECIPROCAL OBLIGATIONS DURING THE ARMISTICE
1780. Independently of any express agreement, it shall be con-
sidered as absolutely prohibited during the armistice to undertake
any defense work in the theater of war, to rebuild destroyed works,
to introduce ammunition into a besieged fortress, or to undertake
any operation whatever likely to strengthen the respective mili-
tary positions on either side. But it is not forbidden to either
party to do anything which, without substantially altering their
respective military positions, might contribute to make the com-
CONVENTIONS GOVERNING WAR
641
batants stronger. Under this head we might include the drilling
of troops, the manufacture of arms, the building of defense works
outside the theater of war and any other operation which the bel-
ligerent might have undertaken had not the war been suspended,
and which the enemy would have been unable to prevent had the
struggle continued.
1781. A belligerent may not during an armistice revictual a
besieged or blockaded place, but he cannot be denied the intro-
duction into such place of the quantity of provisions which may
be required for the daily consumption of the garrison.
To avoid all difficulty, it will be advisable to fix the quantity
in advance in the convention itself.
EXECUTION OF THE ARMISTICE
1782. An armistice, whatever its conditions may be, must be
executed honestly and in good faith. The commanders of the
armies must notify its conclusion as soon as possible, and all the
military authorites to whom it shall have been officially communi-
cated must at once order the suspension of hostilities.
1783. The contracting parties are bound to carry out faithfully
those provisions of the armistice which concern their relations with
private persons and with the inhabitants of the country militarily
occupied by either of them.
It shall always be deemed contrary to military honor and to the
laws of war for a belligerent during the armistice to incite to re-
bellion or treason the inhabitants of the territory he occupies or
in any way to encourage the soldiers of his adversary to desert.
ACTS OF HOSTILITY DURING THE ARMISTICE
1784. Any violation of the armistice committed by one of the
parties shall give to the other the right to denounce the convention
and to renew hostilities. Should the violation be serious, the other
party could, by this very fact, consider the armistice convention
as terminated. Such a violation would involve the international
responsibility of the State just as any wrongful violation of a
treaty legally concluded.
It shall not be deemed a violation of the armistice for a body
642
INTERNATIONAL LAW CODIFIED
of troops to have continued hostilities after the conclusion of the
armistice, but prior to their notification. The case would be
different if the delay in notification should be considered as due
to bad faith; it would be so presumed if sufficient time had elapsed
to communicate it.
1785. Hostile acts on the part of private individuals or volunteers
not under military authority, who have acted on their own initia-
tive without the tacit connivance of the military authorities or of
the Government, shall not be considered as violations of the pro-
visions of the armistice. They merely warrant the belligerents in
treating the persons who have committed such acts, knowing of
the armistice, as rebels punishable under martial law, or to re-
quest their punishment by the hostile Government. Further-
more, when these acts are such as to involve the indirect respon-
sibility of the Government, the belligerent shall have the right to
claim an indemnity for the injury sustained.
TRUCE
1786. A truce or local armistice does not completely interrupt
hostilities or the war, but merely suspends the belligerent opera-
tions in that portion of the territory to which the convention refers.
A truce is subject to the same rules as an armistice, and may
be considered a local armistice.
Albericus Gentilis defines a truce as follows: (Lib. II, cap. XII, De jure
belli): “A truce is a convention between enemy parties reciprocally to abstain
from giving offense to one another for a short period of time. It takes
place in the course of hostilities not in order to end, but merely to interrupt
them. . A prolonged truce would bear great similarity to peace.”
PRELIMINARIES OF PEACE
1787. Conventions by means of which the preliminary conditions
of peace are determined can only be validly entered into by per-
sons competent to conclude a treaty of peace under the consti-
tutional law of the belligerent state, and they are subject to the
same rules as such a treaty. The stipulations of these conventions
to prepare the conclusion of final peace shall be deemed obligatory
and must be observed honestly and in good faith, so long as the
negotiations for peace shall not have been terminated or suspended.
TITLE XVII
RIGHTS OF BELLIGERENTS TOWARDS NEUTRALS
1788. Every belligerent state has the right to subject all neutral
states to the exigencies and requirements of the war.
For this purpose it may require:
(a) That every neutral state shall strictly maintain its legal
status as such and observe its neutral duties as determined by
the common law of nations, express conventions and the general
principles of international law, under penalty of assuming the
position of an enemy when it commits hostile acts;
(b) That the ships of neutral states shall be subject to inter-
ference with their peaceful commerce by being compelled to
refrain from trading with hostile places effectively blockaded;
(c) That no neutral state shall directly perform acts of assist-
ance for the enemy, nor fail in due diligence to prevent its nationals
from lending such assistance;
(d) That no merchant vessel flying a neutral flag shall carry
to the enemy goods considered as contraband of war;
(e) That every neutral merchant vessel shall submit to search
on the high seas and in the territorial waters of the belligerent
state, with a view to determining its legal status as a neutral
and the nature of its cargo;
() That the penal sanctions provided for by international law
to compel the observance by neutrals of the laws and customs of
war and the legal protection of the rights of belligerents as respects
neutrals shall be applied by a competent court.
1789. No belligerent has the right to claim the respect of its
own rights by neutrals unless it strictly observes, in their exercise,
the laws and customs of war which govern those rights.
1790. The laws and customs of war which ought to govern the
rights of belligerents toward neutrals and the duties of neutrals
must be those established in conformity with the customary law of
643
644
INTERNATIONAL LAW CODIFIÈD
nations and with conventional law, and in their absence in con-
formity with the general principles of international law.
Among the states represented at the second Hague Conference
the rules which are established in conventions constituting a
part of the General Act of October 18, 1907, must be considered
as legally binding.
TITLE XVIII
NEUTRALITY AND THE RIGHTS AND DUTIES ARISING
THEREFROM 1
CONCEPT AND NATURE OF NEUTRALITY
1791. Neutrality, objectively considered, is in itself a state
of fact, and consists in the complete abstention from any hostile
act against either one of the belligerents and from any act cal-
culated to favor either one of the belligerents in their military
operations.
Subjectively considered, it indicates the legal status of a state
which, in the event of war, takes no part in the hostilities, either
directly or indirectly.
The definition of neutrality given in preceding editions of this work and
which is here reproduced, has given rise to various criticisms on the part of
those who have not carefully considered our concept. It is our intention to
determine synthetically the objective and substantial conditions from which
are derived the legal situation and condition of a neutral. Such a legal state
or condition of a neutral power may be called neutrality; but, as every legal
relation presupposes certain conditions of fact from which arises the condition
of law (jus ex facto oritur) regulating the presupposed fact which constitutes
and characterizes the status known as neutrality, we have maintained, and
still maintain, that such a preliminary fact consists in the complete abstention
from any hostile act against the two belligerents and from any act calculated
to be of assistance or aid to either one in the prosecution of the war. Accord-
ingly our definition did not refer to the legal content of the state of neutrality,
and consequently did not determine the legal conditions of neutrality, and
did not specify which acts might be considered as giving assistance. Matters
relating to the legal content were not the object of our definition; we referred
to the presupposed fact out of which arises the legal concept, namely, the fact
from which arises the original right itself and the legal status called neu-
trality.
1792. Neutrality may be voluntary, absolute or conventional.
The first is a consequence of the autonomy of every state and
1 The rules concerning neutrality, and the rights and duties arising there-
from are reprinted in the same form as presented in preceding editions of this
work.
645
646
INTERNATIONAL LAW CODIFIED
of the right which it possesses to regulate with complete in-
dependence all matters concerning its relations with other states
and to determine freely the position which it intends to assume on
the outbreak of war.
The second is the neutrality which in a general and absolute
manner is imposed in the common interest of all the states upon
one of them, either by means of a general treaty or of a rule es-
tablished in common accord by the states assembled in a Congress,
or through conditions agreed upon as to the recognition of the in-
ternational personality of such state.
The third may be the consequence of a special treaty, by the
terms of which two or more states undertake by reciprocity to
observe neutrality in the event of a war between one of them and a
third power.
1793. General or absolute neutrality should be deemed under
the legal protection of all the states interested in having it re-
spected.
STATES ENTITLED TO BE CONSIDERED NEUTRAL
1794. Every state has the right, when war breaks out, to declare
and notify, through diplomatic channels, its intention to remain
neutral. Having made such a declaration and notification it has
the right to expect to be considered as a neutral and shall be en-
titled to the rights which arise from such legal status from the time
of its declaration.
States whose neutrality must be deemed obligatory shall be
considered ipso facto neutral as soon as war breaks out.
1795. A state which did not declare its intention of remaining
neutral, but actually fulfills the conditions necessary to be so con-
sidered, in the fact that it does not, directly or indirectly, take any
part in the war, shall have the right to be considered neutral and
entitled to enjoy and exercise the rights arising therefrom on con-
dition of complying with the duties of neutrals.
1796. A state forfeits its right to neutrality whenever it takes
part in the war for any reason, or furnishes assistance to a belliger-
ent, either by undertaking some hostile act against one of the
belligerents or by promising to do something which may be re-
garded as an act of military assistance.
NEUTRALITY: ITS RIGHTS AND DUTIES
647
4
The act of assistance does not lose its character as such by reason
of the fact that the state would be obliged to undertake it on ac-
count of a previous treaty concluded with a belligerent, or other-
wise.
1797. No state may limit its neutrality to a part of its territory
only.
The legal status of every state, from the viewpoint of absolute
abstention or non-abstention from the war, shall be considered
just as indivisible as its personality.
1798. No state which is the ally of a belligerent in a war waged
by the latter against a certain state can lay claim to being a neutral
in another war sustained at the same time by its ally against an-
other state.
The assistance given to a state in a war is undoubtedly an indirect help in
any other war waged against another country by that state, since its result
is to make the belligerent stronger as against both adversaries.
RIGHTS OF NEUTRAL STATES
1799. Any state which has declared its neutrality may make use
of its military forces to defend it. In like manner, states which
have declared themselves neutral can form an alliance among
themselves in order to defend their rights as such.
At any rate, the states which have remained neutral could in-
crease their armaments with a view to defending their neutrality.
1800. Every neutral state may claim the legal and legitimate
enjoyment of all the rights appertaining to an independent coun-
try in time of peace. It cannot, however, exercise them except
subject to the restrictions made necessary by and the require-
ments of the state of war.
1801. No limitation upon the exercise of the rights of neutrals
may be arbitrarily imposed by either belligerent. Such a restric-
tion is only justified when provided for in the conventional rules
established by the states with regard to their reciprocal duties
in cases where they shall have declared their intention of remaining
neutral, or when the restriction arises from the very nature of neu-
trality.
What has rendered the legal status of neutrality uncertain and indefinite
is the lack of positive rules regarding the duties of neutrality. Neutral states
must undoubtedly suffer from the consequences of war and their rights must
648
INTERNATIONAL LAW CODIFIED
be exercised with such limitations as the requirements of the struggle may
impose. But should the belligerents themselves be permitted to determine
the duties or other conditions to be imposed upon neutrals the result would
be that when either one of them should unduly increase the restrictions placed
upon the exercise of the rights of neutrals, all that the belligerent would have
to do to justify his claims would be to invoke the so-called necessities of war.
Restrictions would then be made so severe that neutrals would not be able to
exercise the rights to which they are entitled. To prevent all arbitrariness in
the matter it must be admitted as a fixed rule that the exercise of the rights
of neutrals cannot be otherwise limited than in accordance with the rules of
law relating to the duties of neutrals.
For further discussion of this point see our former work, Diritto interna-
zionale pubblico, v. III, 3d ed., chap. entitled “Considerazioni storiche sulla
neutralita” (Turin, Unione Tipografico Editrice) and the French translation
of Ch. Antoine (Paris, Pedone-Lauriel, publishers).
INVIOLABILITY OF NEUTRAL TERRITORY
1802. It must be considered an absolute right of any neutral
state to preserve, during the war, the inviolability of all its terri-
tory with its dependencies and of its territorial waters, and to
insist that no act of warfare shall be consummated therein by any
of the belligerents.
1803. The belligerents are bound scrupulously to respect the
inviolability of neutral territory and its dependencies and to abstain
from committing therein any act of hostility, even of completing
therein a military operation commenced outside such territory.
Every act of warfare undertaken or accomplished in the ter-
ritory of a neutral state must be considered as contrary to the laws
of war. Accordingly, it is unlawful to seize an enemy ship within
the territorial waters of a neutral country, even when the ship
has taken refuge there in order to escape the enemy.
If, however, a belligerent should commence an attack on the
high seas and near the end of the battle the attacked ship should
enter neutral waters, the inviolability of such waters could not
be considered as infringed by the fact that the attack ended
there, provided there was unity of action on the part of the enemy
war-ship.
INDEPENDENCE IN THE EXERCISE OF THE RIGHTS OF SOVEREIGNTY
1804. Every neutral state is entitled to exercise with absolute
independence its rights of sovereignty in time of war as in time of
NEUTRALITY: ITS RIGHTS AND DUTIES.
649
peace. The free exercise of these rights may not be restricted on
the ground of the possible consequent prejudice to either belliger-
ent. It may be limited only in accordance with the preceding
rules, or under special circumstances calculated to attribute to
the acts of sovereignty the character of interference and of as-
sistance to one of the combatants.
This rule may find its application in the case of a neutral government hav-
ing recognized a government constituted by an insurgent party, in a civil
war, by regarding it as entitled to all the rights of a belligerent. Such a recog-
nition may, of course, be considered unwarranted by the particular govern-
ment which characterizes the insurgents as rebels; the conduct of the neutral
government might be regarded as a manifestation of sympathy towards the
insurgent party, and on the other hand as an unfriendly act towards the
constituted government. Yet the neutral state cannot be denied the right
so to act.
(Compare Rule 173.)
FREEDOM OF PEACEFUL COMMERCE
1805. A neutral state has the right to protect the freedom of
peaceful commerce of its citizens in time of war, and to insure in
every way the security of navigation and the inviolability of its
merchant vessels and their cargoes. It is likewise its duty to pro-
tect the undeniable rights of its nationals to be considered as
exempt from the laws of war so long as they have not infringed the
duties of neutrality, and to safeguard their right to do business
as freely as in time of peace. Moreover, such right may be exer-
cised through the maintenance of commercial relations not only
between neutral ports and those of the enemy, but between any
two ports of the belligerents, in execution of treaties concluded
during peace and which must be considered as having remained
in full force notwithstanding the outbreak of war.
1806. The belligerents are bound to consider in full force trea-
ties concluded during peace with states which, at the outbreak of
war, have made a declaration of neutrality, and to continue to
assure to them and to their citizens the full enjoyment of all the
rights and advantages arising out of these treaties, just as if the
war, to which these states remain neutral, had not supervened.
Since it is of the very nature of neutrality that the international law govern-
ing peaceful relations subsists in its entirety between the belligerents and
neutral states, it follows that it is not sufficient in order to suspend such right
or to modify its application to invoke the pretended right of preventing neu-
650
INTERNATIONAL LAW CODIFIED
trals from profiting from the advantages which the war may give them. In-
deed, the old theory cannot be admitted that the belligerents have the right
to prevent neutrals from profiting by the war. On the contrary, it must be
admitted in principle that the law of peace, subsisting in its entirety so far
as neutrals are concerned, binds the belligerents to regulate their conduct in
conformity with it.
DUTIES OF NEUTRAL STATES
1807. A neutral state must:
(a) Abstain faithfully and completely from taking part in the
war and do nothing which, directly or indirectly, may contribute
to render either belligerent stronger; in general, abstain from any
act whatever having the character of assistance to one of the bel-
ligerents for war purposes; and abstain impartially from lending
assistance to either belligerent.
(b) Neither permit nor tolerate either belligerent, on the ter-
ritory of the state or its dependencies, to undertake any operation
of war or accomplish any act with respect to the war;
(c) Undertake by its laws to compel all persons subject to its
jurisdiction to respect the rules of neutrality and the duties arising
therefrom;
(d) Undertake to enforce its criminal laws to the end that per-
sons subject to its jurisdiction may not violate with impunity the
rules of neutrality and the resulting duties;
(e) Prevent, by all means at its disposal and with due diligence,
any eventual injury which may be done to either belligerent from a
violation of its neutrality by private individuals;
The obligations arising from neutrality do not merely concern the govern-
ment of the state which has made a declaration of neutrality, so as to involve
its direct responsibility in case of violation, but concerns likewise the citizens
of that state. These citizens, indeed, are bound individually not to violate
the duties of neutrality by undertaking hostile acts contrary to the obligations
assumed by their government when declaring its neutrality.
Yet, hostile acts accomplished by citizens of the state do not always involve
the responsibility of the government. The indirect responsibility of the
state can only arise if it can be considered as having been obliged to prevent
the accomplishment of these acts and had voluntarily failed to do what it
could and should have done towards preventing them. This is covered by
sections c, d and e of our rule.
Compare: Fiore, Questioni di diritto su casi controversi-Contraversia tra il
governo olandese ed il governo inglesa, p. 299.
NEUTRALITY: ITS RIGHTS AND DUTIES
651
ACTS WHICH MAY BE CHARACTERIZED AS ACTS OF HOSTILITY
1808. The following shall be deemed acts of hostility:
(a) Assistance given to one of the belligerents by means of
armed troops or placing at his disposal ships of war or vessels
built and equipped for war, or by giving him a subsidy or loan
calculated to aid in the operations of the war;
Assistance shall be deemed an act of hostility, even when furnished with
perfect impartiality and equality to both belligerents.
(b) The permission or toleration of the use of its territory by one
of the belligerents for the passage of its armies;
The acts contemplated in paragraphs a and b do not lose their real character
as such even if the state by a previous treaty had undertaken to grant as-
sistance or passage.
(c) Permission for or toleration of any operation within its ports
or territorial waters by a belligerent war-ship calculated to
strengthen its power or augment its armament, or to take in pro-
visions and coal, except in case of urgent necessity, and then not
beyond the quantity necessary for the needs of the crew during
the time required to reach the nearest home port of the belligerent.
(d) Openly favoring or encouraging the enlistment of recruits
within its territory on behalf of one of the belligerents;
(e) Permission for or toleration of a ship of war or privateer of
one of the belligerents entering its ports or territorial waters to sell
or to place in safety its prizes, except in cases of forcible entry
under distress, in which circumstances shelter may be granted,
on condition, however, of not taking advantage thereof for pur-
poses of war;
(f) Permission granted to citizens to enlist in belligerent armies,
or to accept letters of marque to engage in privateering, or to
accept proposals of the belligerent states for fitting out ships of
war or for participating in any manner whatever in the fitting out
or armament of a privateer.
ACTS CONSISTENT WITH NEUTRALITY
1809. The following shall not be deemed hostile acts or acts
inconsistent with neutrality:
(a) The passage of armies through neutral territory, when the
652
INTERNATIONAL LAW CODIFIED
belligerent has crossed it without authorization and the territorial
sovereign is powerless to prevent it except by becoming involved
in the war;
(6) The enlistment in the belligerent armies of private individ-
uals without authorization of the Government, provided the Gov-
ernment has applied to its citizens the laws in force concerning
the legal consequences of enlisting abroad;
(c) Open and impartial commerce in munitions of war carried
on by individuals at their own account and risk, without direct
or indirect encouragement of the Government;
(d) Any act whatever on the part of private individuals, not
prohibited by municipal law, which may have been of advantage
to one of the belligerents, but which was accomplished on the
initiative of a private individual alone without the State having
done anything that may have contributed to lessen the individ-
ual's risk and to protect him against the laws of war.
In order to make clear the principles above mentioned, it must be observed
that no government can be compelled to suspend the operation of municipal
laws which permit enlistment abroad, or commerce in arms and munitions of
war, loans, subsidies, the formation of relief committees, etc. It is, however,
bound to apply those laws so as to eliminate any suspicion of indirect en-
couragement given to the initiative of individuals and to commercial under-
takings which must always be carried out at the risk of the persons engaged
therein.
The belligerent always has the right to provide against all the consequences
of the acts of individuals, by enforcing against them the laws of war. It is
sufficient that the neutral government does not shield its citizens from meas-
ures adopted by belligerents and justified by the laws of war and provides for
the application by the authorities of all the penalties of its municipal law
against certain unlawful acts undertaken by individuals in time of war.
1810. It is no longer to be regarded as contrary to the duties
of neutrality to grant permission to the belligerents to transport
the sick and the wounded through neutral territory.
BELLIGERENTS TAKING REFUGE IN NEUTRAL PORTS OR TERRITORY
1811. It shall not be regarded as contrary to the duties of neu-
trality to give refuge in neutral ports to belligerent ships com-
pelled to enter on account of stress of weather or of maritime
disasters, or to receive on neutral territory soldiers requesting
asylum after battle or troops pursued by the enemy who may seek
NEUTRALITY: ITS RIGHTS AND DUTIES
653
refuge. These duties of humanity must, however, be accomplished
without any indirect prejudice to the interests of the other bel-
ligerent and in compliance with the following rules.
1812. The neutral government may protect troops which, pur-
sued by the enemy, have taken refuge in its territory. It may
likewise do everything required by humanity for the maintenance
and lodging of the soldiers, subject to the right to be repaid for the
expenses incurred therefor by the State to which the troops be-
long; but it may not allow them to resume fighting unless they
have been disarmed before leaving the neutral territory.
1813. The neutral government is bound to subject belligerent
ships of war which have sought refuge in its ports on account of
stress of weather to the condition of resuming their navigation
only after a certain period of time, not less than twenty-four
hours, following their arrival. It may permit ships which have
been forced to put in for the purpose of repairing damages
to make only such repairs as are necessary to render them
seaworthy and to resume their voyage without augmenting their
armament.
If a belligerent vessel has taken refuge in a neutral port to es-
cape the attack of an enemy, which was pursuing it with superior
forces and was certain to capture it, the neutral government could
not, without violating the laws of neutrality, allow it to put to sea
again in order to continue fighting, but must detain it and permit
it to depart only after the commander has given his word to take
no further part in the war.
This rule tends to reconcile the duties of humanity with the necessities of
war and the rights of neutral states with those of the belligerents. In regard
to the ship which has entered a neutral port owing to stress of weather, it
should be considered sufficient to prevent it from taking any military arma-
ment and to detain it at least twenty-four hours, in order to prevent its en-
trance into the neutral port from constituting an operation of war. As to
the ship which has sought shelter therein in consequence of a battle and has
availed itself of the protection of the neutral state in order to escape the
superior forces of the enemy pursuing it, and has thus avoided the impending
danger of capture, it must be deemed indispensable not to permit it to put to
sea again except on condition of taking no further part in the war. A neutral
which would not only prevent a belligerent from pursuing and capturing an
enemy ship in neutral territorial waters, but would allow such ship again to
take an active part in the war would be furnishing a veritable military as-
sistance to one of the belligerents.
Compare, for the provisions of Italian legislation on this subject, the note
under rule 1826.
654
INTERNATIONAL LAW CODIFIED
PRISONERS LANDED AND PRIZES ABANDONED IN NEUTRAL PORTS
1814. A neutral state should not permit a ship of war which by
unavoidable circumstances is compelled to enter one of its ports to
land prisoners of war therein unless they are set free and permitted
freely to depart.
1815. Should a belligerent vessel, owing to unavoidable causes,
be compelled to abandon in a neutral port or in neutral territory
prizes which it has captured, the neutral government ought to
provide for the custody of the goods so abandoned and place them
at the disposal of their owners, unless the goods are contraband
of war. In that case, the goods would have to be kept in custody
until the end of the war and should only be placed at the disposal
of their owners or of the captors in conformity with the decision
of the International Prize Court.
DILIGENCE REQUIRED IN THE OBSERVANCE OF THE DUTIES OF
NEUTRALITY
1816. Any government of a neutral state which has not dis-
played perfect fairness and good faith in the strict observance of
the duties of neutrality, and that due diligence which is required
by the nature of things and the necessities of war shall be held re-
sponsible for any consequences of its failure to exercise due dili-
gence.
1817. The diligence required of any government shall be de-
termined with due regard to the circumstances which might render
more or less imminent the danger of violating the duties of neutral-
ity and the possibility of preventing injury to one or other of the
belligerents.
Its responsibility would be in direct proportion to the means
at its disposal to prevent the violation or to avoid or diminish the
resulting injury to a belligerent, and the degree of diligence dis-
played in adopting them.
(Compare rules 604 et seq.)
FAULTS RESULTING FROM THE LACK OF DILIGENCE
1818. Ignorance on the part of a government of an act accom-
plished or planned by private individuals with the intention of vio-
NEUTRALITY: ITS RIGHTS AND DUTIES
655
lating the duties of neutrality, cannot bar its liability for lack
of diligence on its part whenever such ignorance may, under the
circumstances, be considered as malevolent or grossly negligent.
1819. No neutral government shall be deemed guilty of a want
of due diligence for not having adopted extraordinary precautions
for the protection of the interests of the belligerents by limiting
the liberty of its citizens beyond the bounds permitted by the in-
stitutions of the country. Nevertheless, the present powerlessness
of a neutral government in preventing a violation of its duties
of neutrality shall not be sufficient to bar its liability, whenever
it is shown to have failed in due time properly to provide the legal
means calculated to prevent private individuals from violating the
duties of neutrality.
ARBITRAL AWARD ON THE QUESTION OF DILIGENCE
1820. The determination of the degree of diligence which a
government is bound to observe in the faithful discharge of its
duties of neutrality is an unusually complex question which must
be referred to a tribunal of arbitration.
1
For a further discussion of these rules, see Fiore: Trattato di diritto inter-
nazionale pubblico, III, 3d ed., $$ 1672 et seq., p.384.
DUTIES OF BELLIGERENTS TOWARD NEUTRALS
1821. The belligerents are bound to consider all states which,
at the outbreak of war, have made a declaration of neutrality or
have fulfilled the conditions required to be legally deemed neutrals,
as enjoying all the rights of neutrals in time of peace, subject
to the restrictions imposed in accordance with the “common” law
in case of war.
They must also abstain from applying the laws of war to the
citizens of neutral states not engaging in hostile acts, and consider
them under the protection of the law in force in time of peace
whenever they honestly and in good faith perform the duties of
neutrality and do not infringe the laws and usages of war.
1822. The belligerents shall have no right by virtue of the ex-
ceptional law of war to capture neutral goods on board an enemy
ship, except in case of contraband of war. (See rules 1870 et seq.)
656
INTERNATIONAL LAW CODIFIED
1823. It shall not be permissible to treat a neutral vessel as an
enemy or commit against it any act of hostility, when, by its papers,
the vessel is able to establish its legal status as a neutral, and when
there shall be no well-founded or reasonable ground to suspect the
genuineness of the documents produced, or to raise the presumption
that the vessel has forfeited its rights as a neutral.
1824. In principle, it should be deemed unlawful to capture
enemy goods on board a neutral ship, unless they be contraband of
war, even with respect to states which did not sign the treaty of
1856.
1826. Capturing an enemy ship in neutral territorial waters
shall likewise be deemed unlawful, and the belligerent shall be
bound to recognize the right of the neutral state to request that
the prize be set free. Cf. Rule 1803.
1826. The belligerents have no right in time of war to modify
the rules governing peaceful commerce, but it is their duty to allow
the citizens of neutral states to navigate their vessels and conduct
commercial relations with perfect freedom and security under the
protection of the common” law in force in time of peace and
of treaties, subject only to the restrictions arising out of effective
blockade and the prohibition of carrying contraband of war.
The Italian legislature has determined the rights and duties of neutrality
by certain provisions of the Merchant Marine Code of October 24, 1877,
Chapter III, Title IV, Part I. These provisions read:
ART. 246.- In the event of war between Powers with which Italy remains
neutral, no privateers or ships of war shall be received in the ports, roadsteads
or the shores of the State, except owing to stress of weather.
They shall be required to leave as soon as the danger is over.
No belligerent war-vessel or privateer shall be permitted to sojourn more
than twenty-four hours in a port, in a roadstead or on the shores of the State
or in adjacent waters, even if it should come alone, unless it is compelled to
put in under stress of weather, damage or lack of provisions necessary for the
security of navigation.
In no case shall they be allowed, in the ports, in the roadsteads or on the
shores of the State, to sell, exchange, barter or give away captured goods.
ART. 247.-The vessels of war of a friendly Power, even belligerent, shall
be allowed to enter and sojourn in the ports, in the roadsteads and on the
shores of the State, provided their mission is exclusively scientific.
ART. 248.-In no case shall a belligerent vessel be permitted to make use
of an Italian port for the purposes of war, or to obtain a supply of arms or
munitions.
It shall not be permitted, under pretext of repairs, to undertake works likely
to increase in any way its military power.
ART. 249.- Vessels of war and privateers shall only be supplied with the
NEUTRALITY: ITS RIGHTS AND DUTIES
657
provisions and commodities and means of repair necessary for the subsistence
of their crew and the security of their navigation.
Belligerent war-vessels or privateers wishing to take in coal shall be allowed
to do so only within twenty-four hours after their arrival.
ART. 250.-When war vessels, privateers or merchant ships of the two
belligerents shall simultaneously be in a port, a roadstead or on the coast of
the State, there must be an interval of at least twenty-four hours between
the departure of any vessel of one belligerent and the departure of any vessel
of the other belligerent.
This interval may be increased according to circumstances by the maritime
authorities of the place.
ART. 251.--Prize capture and any act of hostility between vessels of bel-
ligerent nations in territorial waters and in the sea adjacent to the islands of
the State shall constitute a violation of national territory,
RIGHTS AND DUTIES OF NEUTRALITY ACCORDING TO THE HAGUE
CONVENTION OF 1907
1827. The states represented at the Hague Conference of 1907
and those which shall subsequently adhere to the General Act shall
be bound to recognize the compulsory legal force of the conven-
tional rules, adopted in common agreement, concerning the rights
and duties of neutrality during war on land and on sea, provided
the states which have signed the General Act are parties to the
war, and subject to the reservations made by individual signa-
tory states.
The rules herein mentioned are founded in the Vth and in the XIIIth con-
ventions of the General Act of October 18, 1907. The former was signed with-
out reservation by all the states, except the Argentine Republic and Great
Britain, which alone made reservations. The latter, signed without reserva-
tions by the majority of the states, was signed with reservations by Germany,
the Dominican Republic, Great Britain, Japan, Persia, Siam and Turkey.
The text of this Convention is as follows:
WAR ON LAND (CONVENTION V)
CHAPTER I
RIGHTS AND DUTIES OF NEUTRAL POWERS
Art. 1. The territory of neutral Powers is inviolable.
Art. 2. Belligerents are forbidden to move troops or convoys
of either munitions of war or supplies across the territory of a
neutral Power.
Art. 3. Belligerents are likewise forbidden to-
(a) Erect on territory of a neutral Power a wireless telegraphy
station or other apparatus for the purpose of communicating with
belligerent forces on land or sea;
(6) Use any installation of this kind established by them before
the war on the territory of a neutral Power for purely military
purposes, and which has not been opened for the service of public
messages.
Art. 4. Corps of combatants cannot be formed nor recruiting
agencies opened on the territory of a neutral Power to assist the
belligerents.
Art. 5. A neutral Power must not allow any of the acts referred
to in Articles 2 to 4 to occur on its territory.
It is not called upon to punish acts in violation of its neutrality
unless the said acts have been committed on its own territory.
Art. 6. The responsibility of a neutral Power is not engaged
by the fact of persons crossing the frontier separately to offer
their services to one of the belligerents.
Art. 7. A neutral Power is not called upon to prevent the export
or transport, on behalf of one or other of the belligerents, of arms,
munitions of war, or, in general, of anything which can be of use
to an army or a fleet.
Art. 8. A neutral Power is not called upon to forbid or restrict
the use on behalf of the belligerents of telegraph or telephone cables
or of wireless telegraphy apparatus belonging to it or to companies
or private individuals.
658
WAR ON LAND (CONVENTION V)
659
Art. 9. Every measure of restriction or prohibition taken by a
neutral Power in regard to the matters referred to in Articles 7 and
8 must be impartially applied by it to both belligerents.
A neutral Power must see to the same obligation being observed
by companies or private individuals owning telegraph or telephone
cables or wireless telegraphy apparatus.
Art. 10. The fact of a neutral Power resisting, even by force,
attempts to violate its neutrality cannot be regarded as a hostile
act.
CHAPTER II
BELLIGERENTS INTERNED AND
WOUNDED TENDED IN NEUTRAL
TERRITORY
Art. 11. A neutral Power which receives on its territory troops
belonging to the belligerent armies shall intern them, as far as
possible, at a distance from the theatre of war.
It may keep them in camps and even confine them in fortresses
or in places set apart for this purpose.
It shall decide whether officers can be left at liberty on giving
their parole not to leave the neutral territory without permission.
Art. 12. In the absence of a special convention to the contrary,
the neutral Power shall supply the interned with the food, clothing,
and relief required by humanity.
At the conclusion of peace the expenses caused by internment
shall be made good.
Art. 13. A neutral Power which receives escaped prisoners of
war shall leave them at liberty. If it allows them to remain on its
territory it may assign them a place of residence.
The same rule applies to prisoners of war brought by troops
taking refuge in the territory of a neutral Power.
Art. 14. A neutral Power may authorize the passage through its
territory of the sick and wounded belonging to the belligerent
armies, on condition that the trains bringing them shall carry
neither personnel or war material. In such a case, the neutral
Power is bound to take whatever measures of safety and control
are necessary for the purpose.
The sick or wounded brought under these conditions into neutral
660
INTERNATIONAL LAW CODIFIED
.
territory by one of the belligerents, and belonging to the hostile
party, must be guarded by the neutral Power so as to ensure their
not taking part again in the military operations. The same duty
shall devolve on the neutral State with regard to wounded or sick
of the other army who may be committed to its care.
Art. 15. The Geneva Convention applies to sick and wounded
interned in neutral territory.
CHAPTER III
NEUTRAL PERSONS
Art. 16. The nationals of a State which is not taking part in
the war are considered as neutrals.
Art. 17. A neutral cannot avail himself of his neutrality:
(a) If he commits hostile acts against a belligerent;
(6) If he commits acts in favor of a belligerent, particularly if
he voluntarily enlists in the ranks of the armed force of one of the
parties.
In such a case, the neutral shall not be more severely treated by
the belligerent as against whom he has abandoned his neutrality
than a national of the other belligerent State could be for the same
act.
Art. 18. The following acts shall not be considered as committed
in favor of one belligerent in the sense of Article 17, letter (6):
(a) Supplies furnished or loans made to one of the belligerents,
provided that the person who furnishes the supplies or who makes
the loans lives neither in the territory of the other party nor in
the territory occupied by him, and that the supplies do not come
from these territories;
(6) Services rendered in matters of police or civil administra-
tion.
CHAPTER IV
RAILWAY MATERIAL
Art. 19. Railway material coming from the territory of neutral
Powers, whether it be the property of the said Powers or of com-
panies or private persons, and recognizable as such, shall not be
WAR ON LAND (CONVENTION V)
661
requisitioned or utilized by a belligerent except where and to the
extent that it is absolutely necessary. It shall be sent back as
soon as possible to the country of origin.
A neutral Power may likewise, in case of necessity, retain and
utilize to an equal extent material coming from the territory of
the belligerent Power.
Compensation shall be paid by one party or the other in pro-
portion to the material used, and to the period of usage.
NAVAL WAR (CONVENTION XIII)
Art. 1. Belligerents are bound to respect the sovereign rights of
neutral Powers and to abstain, in neutral territory or neutral
waters, from any act which would, if knowingly permitted by any
Power, constitute a violation of neutrality.
Art. 2. Any act of hostility, including capture and the exercise
of the right of search, committed by belligerent war-ships in the
territorial waters of a neutral Power, constitutes a violation of
neutrality and is strictly forbidden.
Art. 3. When a ship has been captured in the territorial waters of
a neutral Power, this Power must employ, if the prize is still within
its jurisdiction, the means at its disposal to release the prize with
its officers and crew, and to intern the prize crew.
If the prize is not in the jurisdiction of the neutral Power, the
captor Government, on the demand of that Power, must liberate
the prize with its officers and crew.
Art. 4. A prize court cannot be set up by a belligerent on neu-
tral territory or on a vessel in neutral waters.
Art. 5. Belligerents are forbidden to use neutral ports and waters
as a base of naval operations against their adversaries, and in
particular to erect wireless telegraphy stations or any apparatus
for the purpose of communicating with the belligerent forces on
land or sea.
Art. 6. The supply, in any manner, directly or indirectly, by a
neutral Power to a belligerent Power, of war-ships, ammunition,
or war material of any kind whatever, is forbidden.
Art. 7. A neutral Power is not bound to prevent the export or
transit, for the use of either belligerent, of arms, ammunitions, or
in general, of anything which could be of use to an army or fleet.
Art. 8. A neutral Government is bound to employ the means at
its disposal to prevent the fitting out or arming of any vessel within
its jurisdiction which it has reason to believe is intended to cruise,
or engage in hostile operations, against a Power with which that
Government is at peace. It is also bound to display the same
662
NAVAL WAR (CONVENTION XIII)
663
vigilance to prevent the departure from its jurisdiction of any
vessel intended to cruise, or engage in hostile operations, which
had been adapted entirely or partly within the said jurisdiction
for use in war.
Art. 9. A neutral Power must apply impartially to the two bel-
ligerents the conditions, restrictions, or prohibitions made by it
in regard to the admission into its ports, roadsteads, or territorial
waters, of belligerent war-ships or of their prizes.
Nevertheless, a neutral Power may forbid a belligerent vessel
which has failed to conform to the orders and regulations made by
it, or which has violated neutrality, to enter its ports or roadsteads.
Art. 10. The neutrality of a Power is not affected by the mere
passage through its territorial waters of war-ships or prizes be-
longing to belligerents.
Art. 11. A neutral Power may allow belligerent war-ships to
employ its licensed pilots.
Art. 12. In the absence of special provisions to the contrary in
the legislation of a neutral Power, belligerent war-ships are not
permitted to remain in the ports, roadsteads, or territorial waters
of the said Power for more than twenty-four hours, except in the
cases covered by the present convention.
Art. 13. If a Power which has been informed of the outbreak
of hostilities learns that a belligerent war-ship is in one of its ports
or roadsteads, or in its territorial waters, it must notify the said
ship to depart within twenty-four hours or within the time pre-
scribed by local regulations.
Art. 14. A belligerent war-ship may not prolong its stay in a
neutral port beyond the permissible time except on account of
damage or stress of weather. It must depart as soon as the cause
of the delay is at an end.
The regulations as to the question of the length of time which
these vessels may remain in neutral ports, roadsteads, or waters,
do not apply to war-ships devoted exclusively to religious, scientific,
or philanthropic purposes.
Art. 15. In the absence of special provisions to the contrary
in the legislation of a neutral Power, the maximum number of
war-ships belonging to a belligerent which may be in one of the
ports or roadsteads of that Power simultaneously shall be three.
Art. 16. When war-ships belonging to both belligerents are
664
INTERNATIONAL LAW CODIFIED
present simultaneously in a neutral port or roadstead, a period of
not less then twenty-four hours must elapse between the departure
of the ship belonging to one belligerent and the departure of the
ship belonging to the other.
The order of departure is determined by the order of arrival,
unless the ship which arrived first is so circumstanced that an ex-
tension of its stay is permissible.
A belligerent war-ship may not leave a neutral port or road-
stead until twenty-four hours after the departure of a merchant
ship flying the flag of its adversary.
Art. 17. In neutral ports and roadsteads belligerent war-ships
may only carry out such repairs as are absolutely necessary to
render them seaworthy, and may not add in any manner what-
soever to their fighting force. The local authorities of the neutral
Power shall decide what repairs are necessary, and these must
be carried out with the least possible delay.
Art. 18. Belligerent war-ships may not make use of neutral
ports, roadsteads, or territorial waters for replenishing or increas-
ing their supplies of war material or their armament, or for complet-
ing their crews.
Art. 19. Belligerent war-ships may only revictual in neutral
ports or roadsteads to bring up their supplies to the peace standard.
Similarly these vessels may only ship sufficient fuel to enable
them to reach the nearest port in their own country. They may,
on the other hand, fill up their bunkers built to carry fuel, when in
neutral countries which have adopted this method of determining
the amount of fuel to be supplied.
If, in accordance with the law of the neutral Power, the ships
are not supplied with coal within twenty-four hours of their ar-
rival, the permissible duration of their stay is extended by twenty-
four hours.
Art. 20. Belligerent war-ships which have shipped fuel in a port
belonging to a neutral Power may not within the succeeding three
months replenish their supply in a port of the same Power.
Art. 21. A prize may only be brought into a neutral port on
account of unseaworthiness, stress of weather, or want of fuel or
provisions.
It must leave as soon as the circumstances which justified its
entry are at an end. If it does not, the neutral Power must order
1
NAVAL WAR (CONVENTION XIII)
665
it to leave at once; should it fail to obey, the neutral Power must
employ the means at its disposal to release it with its officers and
crew and to intern the prize crew.
Art. 22. A neutral Power must, similarly, release a prize brought
into one of its ports under circumstances other than those referred
to in Article 21.
Art. 23. A neutral Power may allow prizes to enter its ports
and roadsteads, whether under convoy or not, when they are
brought there to be sequestrated pending the decision of a Prize
Court. It may have the prize taken to another of its ports.
If the prize is convoyed by a war-ship, the prize crew may go on
board the convoying ship.
If the prize is not under convoy, the prize crew are left at liberty.
Art. 24. If, notwithstanding the notification of the neutral
Power, a belligerent ship of war does not leave a port where it is
not entitled to remain, the neutral Power is entitled to take such
measures as it considers necessary to render the ship incapable of
taking the sea during the war, and the commanding officer of the
ship must facilitate the execution of such measures.
When a belligerent ship is detained by a neutral Power, the
officers and crew are likewise detained.
The officers and crew thus detained may be left in the ship or
kept either on another vessel or on land, and may be subjected
to the measures of restriction which it may appear necessary to
impose upon them. A sufficient number of men for looking after
the vessel must, however, be always left on board.
The officers may be left at liberty on giving their word not to
quit the neutral territory without permission.
Art. 25. A neutral Power is bound to exercise such surveillance
as the means at its disposal allow to prevent any violation of the
provisions of the above Articles occurring in its ports or roadsteads
or in its waters.
Art. 26. The exercise by a neutral Power of the rights laid down
in the present Convention can under no circumstances be con-
sidered as an unfriendly act by one or other belligerent who has
accepted the articles relating thereto.
Art. 27. The contracting Powers shall communicate to each
other in due course all laws, proclamations, and other enactments
regulating in their respective countries the status of belligerent
666
INTERNATIONAL LAW CODIFIED
war-ships in their ports and waters, by means of a communication
addressed to the Government of the Netherlands, and forwarded
immediately by that Government to the other contracting Powers.
Art. 28. The provisions of the present Convention do not apply
except to the contracting Powers, and then only if all the bel-
ligerents are parties to the convention.
TITLE XIX
OF BLOCKADE AND ITS EFFECTS WITH RESPECT TO
NEUTRALS
BLOCKADE: PLACES WHICH MAY BE SUBJECTED THERETO
1828. A blockade is an operation of war consisting in the in-
vestment of any portion of the enemy coast effected by means of
a naval force for the purpose of cutting off all communication by
sea, and maintained by ships in sufficient number really and ef-
fectively to prevent, by force, any ship from crossing the line of
blockade without running the risk of being hit by the guns of
stationary vessels.
1829. A belligerent may blockade not only military or for-
tified ports but also commercial ports, roadsteads, gulfs and any
portion of the enemy shore with which he intends to interrupt all
communication.
1830. According to the general principles of international law
and to conventional rules, the mouths of international rivers,
straits-even when both shores belong to the enemy state--and
interoceanic canals cannot be subjected to blockade.
The purpose of this rule is to establish that, aside from international agree-
ments relating to the neutrality of straits and interoceanic canals, the Suez
Canal, for example, the right of a belligerent to blockade such straits and
canals and the mouths of international rivers must be considered as forbidden
by the principles of the "common” law of nations. Were it otherwise, the
result would be that an operation of war directed against the enemy would
equally affect neutrals entitled to employ these means of communication for
peaceful purposes.
1831. A belligerent shall have no right to subject to blockade
his own ports and to apply thereto the laws of war concerning
the blockade of enemy ports. He shall have the right, however,
during war, to decree the closing of one or more of his ports and to
use force to prevent neutral ships from entering them.
If, however, national ports have fallen into the hands of the
enemy, the belligerent may, during their military occupation by
667
668
INTERNATIONAL LAW CODIFIED
the enemy, effect their blockade under the normal conditions of
making it effective and obligatory in conformity with the following
rules governing the blockade of hostile ports.
WHEN IS BLOCKADE LEGALLY ESTABLISHED?
1832. A blockade can only be considered as existing de facto
when it is real and effective. It can be so regarded only when all
the ships composing the blockading squadron are stationed per-
manently so as to form a semi-circle before the blockaded port or
coast, and to make it, in all probabilities, impossible for a ship
to pass the line of blockade without exposing itself to grave dangers
and to imminent peril while passing under the fire of guns.
1833. As an operation of war, a blockade shall be deemed a
warrant to confer upon the belligerent the rights flowing from it
according to the laws and customs of war-not only as regards the
enemy, but even as regards neutrals, with power in case of viola-
tion, to punish them--on condition, however, that it shall be real
and effective under the provisions of the preceding rule.
The foregoing rules, as we have formulated them, tend to dissipate any uncer-
tainty as to the existence of the blockade and to establish the fact that it is to
be considered as legally existing only after the belligerent has really invested
the port, roadstead, or coast of the enemy, by stationing before it a number
of ships forming a veritable semi-circle, in order to prevent any vessel from
passing through the line of blockade without liability to being fired upon by
stationary ships.
1834. The blockade shall not cease to be real and effective
owing to the fact that one or more ships have succeeded, by taking
great risks, in running the blockade; it shall be sufficient, in order
that it may be so considered, that this line may not be normally
crossed without danger of being hit by the guns of the stationary
ships.
This rule tends to avoid all exaggeration as to the reality and effectiveness
of the blockade. If the fact that one or more ships have been able, by way
of exception only, to force the blockade line should suffice to annul its legal
existence, the result would be that the most effective blockade could be disre-
garded. It often happens, indeed, that steamships of great speed, commanded
by daring captains, escape the surveillance of the blockading squadron, owing
to the darkness and to weather conditions. This does not modify the effec-
tiveness of the blockade. But the case would be different should ships re-
peatedly cross the line without danger.
OF BLOCKADE AND NEUTRALS
669
BLOCKADE NOTIFIED ONLY THROUGH DIPLOMATIC CHANNELS
1835. A blockade, declared and notified only through diplo-
matic channels, in accordance with rule 1837 shall only be con-
sidered as in force and binding upon neutrals, if real and effective,
notwithstanding the fact that the belligerent who has proclaimed
and notified it has a naval force sufficient to enforce it effectively.
This rule tends to exclude any system of blockade which is not real and
effective in accordance with the foregoing rules. In order to legitimate what
is known as “paper blockade," or fictitious blockade, or blockade by diplo-
matic notification, it was contended that the belligerent did not need to have
ships stationed permanently to enforce it; but that it should be sufficient for
him to have notified the blockade and to have a fleet adequate to enforce it
and cause it to be respected. This is how the system of “cruiser blockade"
was introduced. Nevertheless, under the rule established by the Declaration
signed at Paris in 1856, no belligerent can avail himself of the rights of war
resulting from a blockade unless he in fact occupies the littoral waters of the
blockaded coasts by a permanent fleet, which is in fact capable of preventing
all communication with the coasts.
TEMPORARY SUSPENSION OF THE INVESTMENT
1836. Temporary suspension of the investment for any cause
whatever suspends the application of the laws of war consequent
upon blockade for the period during which the real and effective
investment ceases to exist.
The object of this rule is completely to dismiss the idea that a belligerent
may impose the laws of blockade and apply them without a real and effective
occupation. In view of the fact that everything depends upon such occupa-
tion, it naturally follows that when it comes to an end, the application of the
laws of blockade must cease; that when it is suspended, the application of
these laws must likewise be suspended. Ships bound for a blockaded coast
which do not find before them the blockading fleet, cannot be compelled to
ascertain whether the investment has ceased, through the final cessation of
the blockade or for any other cause. If the blockade does not exist in fact,
the laws relating thereto cannot be applied.
DIPLOMATIC NOTIFICATION OF THE BLOCKADE
1837. A belligerent intending to blockade a port or a coast
must give public notice of his intention to do so through the
channels of diplomacy, indicate the port and coast he intends to
blockade and state the day on which the investment is to begin,
670
INTERNATIONAL LAW CODIFIED
allowing neutral ships a reasonable time to complete commercial
transactions in progress in the blockaded places and subsequently
to leave them with full security.
The omission of such diplomatic notification shall not suffice
to deprive of its legality a blockade which is in fact real and effect-
ive and has been specially notified under the provisions of the
following rule.
SPECIAL NOTIFICATION OF THE BLOCKADE
1838. The special notification of a blockade consists in its official
declaration made by an officer of the blockading squadron to the
captain or master of a neutral ship bound for the blockaded coast
or port. This declaration must be transcribed in the ship's log,
with mention of the day and hour when made and determination
of the limits of the blockade, indicating both the latitude and longi-
tude.
1839. A blockade shall not be considered as in force with all its
legal effects as to a ship bound for or wishing to leave the block-
aded territory, after until the special notification and from the
time it was entered in the ship's log.
TIME LIMIT FOR DEPARTING FROM THE BLOCKADED PLACE
1840. The commander of a squadron who wishes to establish
a blockade is always bound, whenever he can do so without serious
impairment of military operations, to notify it to the representa-
tives of neutral states residing within the blockaded zone, making
known to them the day on which the blockade is to commence and
the time limit allowed to neutral ships to depart from the block-
aded place.
Such notification may be made to the consuls of neutral states
(cf. rule 1845) and the time for departure shall commence from the
day such notification shall have been made.
1841. If, under the treaties concluded between the blockading
belligerent and the national state of the merchant ships anchored
in the blockaded port, a period of time has been fixed for the de-
parture of vessels in case of blockade, such period of time so stipu-
lated shall only begin to run from the day when the commence-
OF BLOCKADE AND NEUTRALS
671
ment of the blockade shall have been notified to the consul residing
in the blockaded port.
In the absence of an official notice to the consuls of neutral
states, the time limit as stipulated in the treaties shall begin from
the day the blockade shall have been notified through diplomatic
channels. (Rule 1837.)
DUTIES OF NEUTRALS IN CASE OF BLOCKADE
1842. Neutral ships intending to observe the duties of neutrality
must recognize all the effects flowing from the blockade in accord-
ance with the laws of war, when all the conditions required for
the effectiveness of the blockade have been fulfilled and when it
has been properly notified in conformity with the foregoing rules;
they shall absolutely refrain from sailing for the blockaded port
or coast or from leaving it by forcing the line of investment, under
pain of liability, in case of violation, to the penalties provided by
international law, and mentioned in rules 1848-1849.
1843. The law of blockade shall be deemed violated only when
·a ship, to which the special notice shall have been communicated
as prescribed in rule 1838, shall attempt to reach the blockaded
coast or port or to leave it. (Compare rule 1846.)
RIGHTS OF NEUTRALS IN CASE OF BLOCKADE
1844. A neutral ship, notwithstanding the diplomatic noti-
fication of the blockade by a belligerent and announced by its
Government, shall be entitled to sail for a blockaded port, and may
not be considered guilty of violating the blockade unless, having
received the special notification referred to in rule 1838, it has
attempted to force or has forced the line of real and effective block-
ade. (Compare rule 1846.)
[This is the continental, but not the Anglo-American rule.--Transl.)
1845. The official communication conveyed to the consuls of
neutral states residing in the blockaded countries shall not be
equivalent to the special notice that must be given to merchant
vessels of these states. If one of these vessels, finding itself in a
blockaded port, should attempt to leave it after the blockade has
672
INTERNATIONAL LAW CODIFIED
been established in a real and effective manner, it shall not be
deemed guilty of violating the blockade unless it had been reached
by the special notice contemplated in rule 1838.
Such ship, as well as any vessel which may attempt to enter
the blockaded port after special notice, would be subject to the
laws of war governing blockade and to the penalties provided by
those laws.
1846. The laws of war governing blockade shall not apply to
neutral vessels leaving blockaded ports in ballast, or which, hav-
ing taken a cargo on board before the commencement of the block-
ade, shall cross the line of blockade within the time fixed by the
commander for leaving, or within the time stipulated in treaties,
observing to that end the provisions of rules 1840 and 1841.
APPLICATION OF THE RULES OF BLOCKADE TO ENEMY MERCHANT
VESSELS
1847. The foregoing rules shall be applicable likewise to enemy
merchant vessels regarded as violating the blockade, provided
enemy private property had been declared inviolable during mari-
time war, thus abrogating the exceptional rule now in force, which
permits their capture as ships of the enemy.
PENALTIES
1848. A belligerent has the right to seize any merchant vessel,
whoever its owner, which, having been specially notified not to
cross the blockading line-as provided by rule 1838—has attempted
to violate or has violated the blockade and was caught in the act.
1849. He has the right likewise to confiscate the ship and the
cargo, whoever the owner and whatever its nature may be, when a
competent court has decided that the ship seized was actually
guilty of violating the blockade or of attempting its violation at
the time it was caught in the act and captured.
TITLE XX1
CONTRABAND OF WAR
1850. Contraband of war is the transport by sea, addressed to
or destined for the enemy, of any kind of arms, machines, engines,
or any other articles which may be considered as designed for use
in land or naval war and which, as such, must be regarded as con-
traband of war under the customary law of nations or conven-
tional law.
1861. The belligerent has the right to forbid the transport,
addressed to or destined for the enemy, of goods likely to be of
service in war; to consider the transport of these goods by neutral
ships as an act of assistance for the purposes of war quite irrecon-
cilable with the legal status of neutrality and with the duties aris-
ing therefrom, and to consider any ship engaged in such traffic
as at once deprived of the right to be deemed a neutral, by subject-
ing it to the penalties applicable under the laws and customs of
war to those carrying contraband of war.
ARTICLES CONSIDERED CONTRABAND ACCORDING TO THE “COMMON”
LAW OF NATIONS
1852. Articles of any kind manufactured, prepared and designed
for use in war shall be deemed, according to customary law,
contraband goods. Such are:
(a) All species of arms designed for attack and defense, whatever
their nature;
(6) Munitions of war and likewise all explosive or fulminating
material which may take the place of powder, or which, in the
progress of science, is likely to be made use of as a means of de-
struction in time of war;
? We reprint here, with a few changes, the rules relating to contraband
of war as formulated in the preceding editions of this book and as developed
in our other works. See: Fiore, Dirillo internazionale pubblico, no. 117.
673
674
INTERNATIONAL LAW CODIFIED
(c) Articles of equipment and armament for the army and navy;
(d) War-ships and all kinds of boats likely to be used in war and
the constituent parts of such ships and boats, provided that they
are, in their present state, manufactured, prepared, and designed
so as to be added to the principal structure, of which they are
accessories;
(e) All other articles which, in the progress of military science,
are manufactured, prepared, and designed for immediate service
in the actual uses of land or naval war;
(f) Machines and instruments for manufacturing the things
above mentioned.
Although considerable differences exist as to the determination of the things
which must be considered contraband of war, whose transport to the enemy
must be deemed prohibited, it is universally agreed that the articles above
enumerated, which are to be considered as manufactured and prepared for
use in war, must be regarded as contraband of war. It must, therefore, be
considered that they surely constitute contraband according to the customary
law of nations.
Italy, in article 216 of the Merchant Marine Code, defines contraband of
war as follows: "The following are declared to be contraband of war: Cannon,
rifles, carbines, revolvers, pistols, sabers and other firearms and portable arms
of all kinds, and in general everything that may, without treatment, serve for
immediate naval or land armament."
A BELLIGERENT CANNOT EXTEND AS HE PLEASES THE CONCEPTION
OF CONTRABAND OF WAR
1863. A belligerent is not allowed, through orders, decrees and
proclamations promulgated at the outbreak of war, to declare
that the transport of certain articles not forbidden by the custom-
ary law of nations shall be considered as contraband of war.
If, however, in consequence of such an order or decree, the gov-
ernment of a neutral state has ordered its citizens to abstain from
transporting to a belligerent the articles indicated in a decree
promulgated by the other belligerent, and has declared that the
prohibited transport should be held to be aid or assistance for the
purposes of war, the prohibition of the government of the neutral
state should be deemed binding upon its citizens.
This could also be established by treaties in conformity with rule
1854, infra.
Rule 1853 tends to establish that the true conception of contraband must be
considered as fixed universally according to the principles of the “common"
CONTRABAND OF WAR
675
law of nations and that belligerents cannot be allowed to fix it themselves by
orders, decrees and proclamations. Some writers, however, have maintained
that the belligerents themselves should be allowed to determine which articles
may be carried and the articles whose transport ought to be regarded as an
act of assistance and subject to the laws of war applicable to the carriage of
contraband. We find this doctrine formulated in the international regulations
of maritime prizes adopted by the Institute of International Law in 1882,
$ 30, which reads: “Belligerent governments shall have to determine in
advance in each particular war the articles which they will consider as contra-
band.” Should this view be admitted, the result would be that, as the bel-
ligerents could determine the prohibition to suit themselves, they could ex-
tend it beyond the limits which ought always to be considered as established
according to the nature of things and the necessities of war; and thus the liberty
of trading freely in time of war as in time of peace, recognized generally as
belonging to neutrals (provided they do not by their trade lend direct aid or
assistance to the belligerents) would be in fact considerably reduced, since
states engaged in war would be allowed at will to characterize as aid and as-
sistance any kind of trade whatever and prohibit it as such. This is the way
the great maritime powers have viewed the matter, and it has had as its result
the arbitrary restriction of the trade of neutrals, as each of the belligerents
enumerated to suit himself the articles which he considered contraband of
war and subjected to the laws in suppression of contraband any vessel carrying
goods the trading in which he had chosen to prohibit.
We admit that special necessities may, under certain circumstances, justify
the increase beyond normal limits of the number of articles, commerce in
which should be prohibited. Nevertheless, as no belligerent has the right to
assume jurisdiction over all states, it is impossible to admit that he may, with
imperative authority, declare forbidden to all neutral states all traffic in ar-
ticles indicated by him as contraband of war. Otherwise, we would be led
to the conclusion that this belligerent could impose upon other Powers a rule
in derogation of the “common” law of nations, and subject them in case of
violation to all the penalties provided therefor by the customary law of nations.
Therefore, if, owing to peculiar circumstances, it should become absolutely
necessary to prevent commerce in certain goods, the prohibition proclaimed
for this purpose by ordinances or decrees published at the outbreak of war
could only become effective as declarations of contraband if the governments
of neutral states had recognized the fact that the commerce thus prohibited
presented the character of aid and assistance for the purposes of the war and
had forbidden their citizens to transport these particular things, by declaring
them to be included amongst articles of contraband.
CONVENTIONAL CONTRABAND OF WAR
1864. The category of articles of contraband may be extended
beyond the limits established by the "common” law of nations
by virtue of the express stipulations of treaties between the bel-
ligerent and other states, and concluded, either previously to or at
the outbreak of the war. In such case, the extension of the con-
traband lists shall be valid only for such states as shall be bound
676
INTERNATIONAL LAW CODIFIED
by treaty, and the prohibition to transport the articles stated
shall only be binding upon the citizens of the states that have
signed the agreement.
Admitting that the category of the articles regarded as contraband of war
may be extended by virtue of a treaty, we infer therefrom that the conven-
tional law thus fixed can only apply to the citizens of the states signatory of
such treaty. This, far from disproving, confirms our rule above set forth, by
which the determination of contraband of war in conformity with international
law and the application of the rules and penalties relating thereto must be
considered as fixed according to the customary law of nations and cannot
depend upon the pleasure and interests of the belligerents in each particular
war. The "common” law, indeed, can not be modified by conventions except
as regards entities which may validly bind themselves by treaty.
RIGHT OF A BELLIGERENT TO PROHIBIT COMMERCE IN CERTAIN
OBJECTS
1855. A belligerent may, owing to the necessities of war, pro-
hibit the carriage of certain articles to his enemy and prevent
such transport by force, on condition of indemnifying private
individuals for any damage arising from such prohibition.
In order to make clear the concept involved in this rule, we must note that
it is impossible to deny completely the right of a belligerent in some cases to
prevent the delivery to the enemy of certain fixed articles of which he may
have a pressing need and whose privation is quite certain to be prejudicial to
him and to weaken his power to continue the war. Prohibition and recourse
to force for the purpose of making it effective would be justified as any other
operation of war, since no one can deny that war is in itself a case of force
majeure calculated to modify the authority of the principles of the "common
law of nations. There is, in time of war, an ensemble of rights based upon
the necessities of attack and defense, and amongst them is the right of forcible
expropriation, which takes the form of requisitions, forced contributions, etc.
It must be admitted, therefore, that in order to weaken his enemy a belligerent
may forbid the shipment to him of certain articles, so as to diminish his power
of resistance and prevent him from proceeding with the war.
What he cannot do is to transform the legal nature of his act, by assign-
ing to an act which he is allowed to undertake as an operation of war the
character of a right which belongs to a belligerent by customary law, namely,
the right to prevent the carriage of contraband of war. He is not, therefore,
justified in considering a neutral ship as deprived of the privilege of neutrality
by the mere fact that it is transporting to the enemy articles which he has
himself classed as contraband, nor in subjecting such ship to the penalties
provided for by international law against those who violate the duties of
neutrality.
And so, we admit the right of prohibition as based on the necessities of war,
deeming the said prohibition to be a case of force majeure; and we hold also
that the belligerent is bound to indemnify private individuals whose interests
CONTRABAND OF WAR
677
suffer from the seizure in transitu of such goods transported for or destined to
the enemy. Indeed, such transport cannot be called contraband of war; it is
merely liable to be prohibited in the belligerent's exclusive interest.
DESTINATION OF THE GOODS AND OF THE SHIP
1856. All articles which, in conformity with the foregoing rules,
may be called contraband of war are subject to the laws of war
which govern their transport, when it appears on clear and con-
clusive proofs and undoubted circumstances of fact that they are
destined to one or the other belligerent, even through a false des-
tination or intermediary consignee.
Contraband goods apparently bound for a neutral port may in reality be
bound for a belligerent state. It may happen, indeed, that in reality these
goods are to be delivered to a belligerent in the course of the voyage, or are
to be landed in a neutral port near the border of the belligerent state in order
to be shipped, with less risk, to the territory of that state by another vessel,
or to be sent there by land. In such case, it is held that the enemy destina-
tion of the contraband articles arises from the principle of the continuity of
the voyage. This principle has given rise to long discussions and to various
applications for justifying the repression, by penalties, of a carriage or trans-
port considered as contraband, owing to fraud as to the real destination.
Compare Fiore, Diritto internazionale pubblico, v. III, SS 1649 et seq.; Fau-
chille, La théorie du voyage continu en matiére de contrebande de guerre, in Revue
générale de droit international, 1907, pp. 298 et seq.; Bonfils, no. 1569; Bluntschli
rule 835; Kleen, De la contrebande de guerre,-I, $ 95; Holland, Prize law and
Report to the Institute of International Law, Annuaire, 1898; Oppenheim,
§ 401.
As enemy destination constitutes the essential characteristic of contraband
and as the fraudulent act is only an apparent act devoid of legal efficacy, it
must be conceded that, when it is possible to establish clearly and convincingly
the real destination of articles considered as contraband, the appearance shall
necessarily yield to the reality. In such matters, the difficulty consists in
verifying the presumption of fraud.
1857. Contraband goods on board a neutral ship may be pre-
sumed to be intended for the enemy whenever such ship must, in
the course of its voyage, call at an enemy port, although the place
of destination is a neutral port, or when, during the voyage, it
must cross waters where the hostile fleet or a portion of such fleet
is stationed,
Likewise, the destination of the goods may be presumed to be
hostile if the ship follows a course different from the normal route
in order to reach the port of destination indicated in the ship's
papers, or when the ship's papers are found to be forged, simulated
or altered.
678
INTERNATIONAL LAW CODIFIED
1858. Any neutral ship which has been chartered by one of the
belligerents, shall be deemed to have been chartered for a military
purpose and as being in the service of the enemy or intended for
such service, and, as such, shall be considered contraband of war.
FORBIDDEN TRADE ASSIMILATED TO CONTRABAND OF WAR
1859. Carriage of goods by sea undertaken in time of war for the
account of or destined to the enemy and having the character of
military assistance shall be assimilated to contraband of war.
Transporting soldiers, dispatches, fuel, or agents of the belliger-
ents under the conditions specified in the following rules shall be
regarded as such contraband.
TRANSPORT OF SOLDIERS AND OFFICERS
1860. The fact that a ship has voluntarily agreed to transport
the officers or soldiers of a belligerent, or persons sent by him for
a military purpose or to perform a public service connected with
military operations shall be considered an act of military assist-
ance and assimilated to contraband of war.
A neutral ship, compelled by violence or force to transport soldiers or sailors
of one or the other belligerent, could not be considered as guilty of a violation
of neutrality. For such transport is imputable to a ship only when she has
voluntarily consented to undertake it for the belligerent. The transport of
an officer or commander even when accomplished voluntarily cannot be
charged against a neutral ship, when it is proved that, although it did volun-
tarily agree to undertake it, it was wholly ignorant of the status of the person
or persons carried as passengers. Our rule, therefore, tends to establish that
the neutral ship cannot be treated as an enemy unless it has voluntarily and
knowingly accomplished the act of military assistance.
TRANSPORT OF DISPATCHES
1861. It shall be an act assimilated to contraband of war for a
ship to have voluntarily agreed to carry the dispatches of a mili-
tary authority, whoever the addressees may be, or those addressed
to a military authority, whoever the senders may be, as well as for
a ship to transport from one port to another port of one of the
belligerents the dispatches of a public official addressed to another
public official of the same state, and also knowingly and volun-
CONTRABAND OF WAR
679
tarily to undertake to carry correspondence for the purposes of
war. (Compare rule 1865.)
A condition which seems to us indispensable in considering as an act of
hostility the carriage of dispatches, is that in so doing the vessel knowingly
wished to assist the belligerent, and that it thus became an enemy just as
would any one who attempts to help the belligerent in any way. When the
ship carries the dispatches of a military authority it cannot be ignorant of
the fact that by so doing it is aiding one of the states engaged in war and thus
commits an act of hostility. Its hostile intention cannot be doubted when
it voluntarily plays the part of a courier by carrying the dispatches of a public
official of the belligerent state addressed to another official of the same country,
wherever it may be delivered. As regards any other kind of correspondence,
the knowledge of its purpose seems to us an indispensable condition; accord-
ingly, in the second part of our rule we have used the words knowingly and
voluntarily, because it is only when the neutral ship spontaneously does some-
thing advantageous to the belligerent that it becomes an enemy. If it had
carried the dispatch in good faith without knowing its origin, and could prove
it, its action could not be regarded as an act of hostility.
TRANSPORT OF COAL
1862. The transport of coal for a belligerent shall be assimilated
to contraband of war, if it is intended for the military authorities
located in a portion of the territory of the belligerent state or for
a ship belonging to the fleet, wherever it is to be delivered.
CARRIAGE OF DIPLOMATIC AGENTS
1863. The transport of the diplomatic agents of a belligerent
state shall not be assimilated to contraband of war.
Nevertheless, in time of civil war, a ship knowingly and volun-
tarily transporting agents of a revolutionary party which is waging
war, may be deemed guilty of an unlawful transport assimilated
to contraband of war.
It cannot be held in principle that transporting the agents or commissioners
of one of the belligerents may be assimilated to an act of contraband carriage.
Yet such action, under certain circumstances, may be regarded as a direct
intention to aid and assist in the purposes of the war. If the transport does
not bear the true character of an act of hostility and assistance, the fact of
transporting cannot be characterized as a hostile act, nor can it be assimilated
to contraband of war.
680
INTERNATIONAL LAW CODIFIED
ARTICLES WHICH CANNOT BE CONSIDERED AS CONTRABAND OF WAR
1864. Arms and ammunition on board a neutral ship, which
must be considered as intended for its use and defense shall not be
included among the articles of contraband of war.
1865. The carriage of ordinary correspondence contained in mail
bags destined for a hostile port and emanating from a neutral
port, and the carriage of dispatches sent to their government by
the ministers or consuls of the belligerent state accredited to or
residing in a neutral port, shall not be assimilated to contraband
of war.
As diplomatic relations between the belligerent states and neutral states
are not interrupted in time of war, it must necessarily be admitted that the
correspondence of the ministers and consuls residing in the territory of neutral
states with their own government may not be interrupted on account of war.
1866. The voluntary transport by a neutral ship of citizens of
one of the belligerents residing abroad, who at the outbreak of the
war have set sail for their home country, even if they may be sus-
pected of returning for the purpose of taking part in the war, shall
not be regarded as contraband of war.
Persons who emigrate even for the purpose of enlisting as volunteers in the
armies of their country certainly cannot be considered as soldiers, and conse-
quently the fact of transporting them cannot be assimilated to the transport
of soldiers forbidden by rule 1860.
PENALTIES APPLICABLE TO THE TRANSPORT OF CONTRABAND OF WAR
1867. The transport of contraband of war, whether undertaken
by an enemy ship or by a neutral ship, shall entail the application
of the penalties provided under "common" or conventional law for
preventing and punishing such unlawful act of assistance in time
of war.
Penalties, however, shall only apply to the acts which may be
considered contraband of war according to the rules hereinbefore
laid down.
1868. The penalties designed to prevent the transport of con-
traband of war cannot have the character and nature of a penalty
intended to punish a criminal act but must have the character of
measures calculated to insure the right of legitimate defense of a
belligerent against his enemy. It is required, therefore, that the
CONTRABAND OF WAR
681
ship be caught in the act, and when the fact is ascertained (i. e.,
the carriage of contraband of war destined to a belligerent), it is
useless to inquire into the intention.
Hence penalties cannot be exaggerated and increased to make
the punishment more effective, but must be restricted and limited
to whatever is necessary to safeguarding the right of defense.
1869. The governments of civilized states must in common
agreement adopt international regulations concerning the penalties
likely to prevent unlawful acts of military assistance in time of
war, so as to avoid all arbitrary acts in so delicate a matter.
So long as such agreement does not exist, penalties can only be
justified when conforming to the general principles of international
law.
PENALTIES ACCORDING TO THE GENERAL PRINCIPLES OT
INTERNATIONAL LAW
1870. A belligerent has the right to confiscate all goods on board
neutral ships, when they constitute contraband of war according
to international law.
1871. A belligerent may stop and detain a ship which is trans-
porting contraband goods, in so far as this action may be necessary
in order to confiscate the goods and transport them to a safe place.
1872. The right of prize over a neutral ship carrying contra-
band may be accorded to a belligerent only when such ship, by
reason of the military assistance it is giving to the other belliger-
ent, can be likened to an enemy ship.
It shall be necessary, therefore, that the facts and circumstances
be such as to cause the ship to be considered guilty of active par-
ticipation in the hostilities.
1873. Active participation in the hostilities may be regarded as
established in the following cases:
(a) When the ship has voluntarily and knowingly undertaken
to transport soldiers for a belligerent;
(6) When the ship has been knowingly and voluntarily chartered
for the transport of dispatches to the enemy under such circum-
stances as to cause such transport to be assimilated to an act of
contraband of war,
(c) When it has been chartered for the transport of provisions
and stores intended for the navy or the army;
682
INTERNATIONAL LAW CODIFIED
(d) When it is to be placed at the belligerent's disposal;
(e) When the contraband goods transported constitute the
major part of the cargo (three-fourths or at least two-thirds);
( When, suspected of transporting contraband, it has at-
tempted to resist search by the use of force.
The rules we propose are based upon the idea that the exceptional law in
force in time of war may give the belligerent the power to prevent, on the
part of neutrals, the performance of any act likely to conflict with his interests
of legitimate defense. As, however, he cannot assume the attributes of a
legislator and the power of compelling everybody to respect his decrees, he
can not apply, as a punishment, the most severe penalties for insuring by terror
the protection of his interests. To accord to the belligerent a right of jurisdic-
tion over the high seas, or to allow him to characterize as crimes actions which
might be detrimental to his interests or to grant him the right to subject to
the penalties provided by him those who infringe the prohibitions declared
by him for the purpose of protecting his interests, would be out of the ques-
tion. It is impossible, indeed, to admit that in order to render the punish-
ment more effective, the belligerent may make the penalty more severe by
confiscating the ship transporting the articles designated by him as contraband
on the pretext of intimidating those who might attempt to injure his interests.
The most exact view of this matter and the one most conformable to justice
is that the right of the belligerent consists in providing effectively for his
defense and in preventing his adversary from resorting to the assistance of
neutrals to increase his military power. It follows therefrom that he may
seize articles considered as contraband of war, but not the ships transporting
them, because the simple act of transportation can be regarded as a commer-
cial transaction.
If all states should agree to assign to contraband carriage the character of
an offense against international law and to decide that the ship which may
have committed it would be liable to confiscation, the capture of the ship
could be justified by reason of the violation of the "common” law proclaimed
by the states; but, under present conditions, the belligerent can only exercise
the exceptional rights which he has in time of war, considering the object
to be attained by means of the hostilities. According to these rights, con-
fiscating the ship which transports contraband is not justifiable.
The case is different when the ship, by its acts, takes an active part in the
hostilities, which would occur in the cases contemplated by us. When it
performs an act of military assistance serious enough to be regarded as hostile,
it is natural to liken it to a merchant ship aligned with warships intended for
military operations.
At any rate, it is reasonable to acknowledge simply that a ship which under-
takes an unlawful transportation at its own risk and peril should suffer all
the consequences thereof. If, consequently, a belligerent interrupts its voy-
age and compels it to stop; if, in order to bring to a safe place articles of con-
traband, he compels it to take them to one of his ports, it cannot complain,
because it is suffering the consequences of the unlawful act and of the risks it
has voluntarily assumed. But when the belligerent has provided for the pro-
tection of his own rights, he cannot require anything else of the ship, nor
treat it as an enemy ship.
See, for further developments of our doctrine the article published by us in
CONTRABAND OF WAR
683
the Pandectes françaises under the word Contrebande de guerre and the study
on the same subject translated into Spanish and published at Madrid, Revista
de legislación, 1896.
(With reference to subdivision (e) of rule 1873, it may be said that the
rule of the Declaration of London, article 40, and that adopted by the prin-
cipal maritime countries is that "a vessel carrying contraband may be con-
demned if the contraband, reckoned either by value, weight, volume, or freight,
forms more than half the cargo." See, The Hakan, L. R. [1916] P. 266.—Transl.)
1874. In no case shall the belligerent have the right to confis-
cate the lawful cargo which happens to be on board a ship trans-
porting contraband.
The owners of the lawful goods shall not be entitled to require
of the belligerents any indemnification for the damage incurred
by them from the interruption of the voyage or from the seizure
of the ship; they may only bring their action for damages against
the captain or the shipowner.
Even though the lawful and unlawful cargoes should belong to the same
owner, it could not be permissible to pronounce the confiscation of the lawful
cargo. Confiscation thus extended would have the character of a veritable
penalty, which is inadmissible, since, as we have already shown, confiscation
in case of contraband of war must be restricted within the bounds created by
the law of war. It may merely be conceded that when a belligerent has the
right to detain a ship which is transporting contraband or to confiscate it
under the exceptional circumstances hereinbefore indicated, he can interrupt
the ship's voyage and that, when thus exercising a legitimate right, he can-
not be held to repair the damage arising from the exercise of such right. The
captain or the ship-owner is to be held responsible for the damages arising
from the interruption of the voyage, according to the principles of "common
law relating to the transportation contract, which principles determine the
responsibility of these two persons towards the owner of the goods for damages
which, in the course of navigation, have been incurred by him through the
fault of the person managing the ship.
1875. It is the duty of the civilized states which have signed the
Declaration of Paris of 1856, or which have adhered thereto, to .
eliminate all uncertainty as to the rules of maritime law in time of
war, by fixing in common agreement the articles to be regarded as
contraband of war, and by providing penalties for the purpose of
insuring the protection of the belligerent's right to prevent unlaw-
ful transportation in time of war.
[This was apparently written before the Declaration of London was adopted
in 1909; its failure of ratification and its arbitrary disavowal and disregard
by some of the leading belligerents in the European War have, of course, left
it without effect as positive law.--Transl.]
TITLE XX
OF THE RIGHT OF VISIT
CONCEPT AND NATURE OF THE RIGHT OF VISIT
1876. The right of visit consists in the right of a belligerent,
in time of war, to compel any merchant ship encountered within
his own territorial waters, within those of his allies, or on the high
seas, to stop in order to verify the legal status and the nature of
the ship's cargo.
This right may be exercised by the commanders of ships of war
of the belligerent, as well as by those of duly commissioned pri-
vateers, should the belligerent admit privateering.
1877. The right of visit must be considered as an exceptional
right recognized in time of war by reason of military necessity.
It must, consequently, be exercised with the just restrictions in-
cidental to the nature of the case and the object in view, and shall
not be deemed legitimate and proper when the person exercising
it has no serious reason for ascertaining the status of the ship
and the nature of its cargo.
This rule tends to establish that, although in principle the right of visit on
the part of a belligerent cannot be limited, yet it must not be resorted to
except in the places and circumstances likely to justify the belligerent's present
interest in ascertaining the nationality of the ship met on the high seas or in
his territorial waters, or the nature of the cargo on board.
WHEN MAY THE RIGHT OF VISIT BE EXERCISED
1878. Visit may be undertaken wherever any other war opera-
tion is allowed. It cannot occur in neutral territorial waters
without violation of the rights of neutral states (compare rule
1802), but may be exercised in the territorial waters of an allied
state waging war on the side of the belligerent.
.
684
OF THE RIGHT OF VISIT
685
SHIPS EXEMPT FROM VISIT
1879. A belligerent shall not have the right to subject to visit:
(a) Ships of war of a neutral state, nor those which belong in
any capacity to the navy of that state;
(6) Mail steamers, carrying mail for a neutral government,
whose flag they are flying, when the government agent on board
declares in writing that the vessel is not transporting for the enemy
either soldiers, dispatches, contraband of war or articles assimil-
ated to such contraband.
CONVOYED SHIPS
1880. Convoyed merchant ships escorted by a war vessel are
exempt from visit, provided her commander gives the name of
every ship composing the convoy placed under his charge and
declares that there is no contraband of war nor any article assimil-
ated thereto being transported for the account of or bound for the
enemy.
The declaration shall be made by the commander of the convoy
on his word of honor and mention of it shall be made in the ship's
log.
Ships adhering to the convoy cannot claim privileged treatment
unless they fulfill the conditions required in order to be lawfully
regarded as belonging to the convoy.
1881. Every government must regulate the organization of
maritime convoys by means of laws calculated to safeguard the
rights of the belligerents and the necessities of war, and especially
to enjoin the commanders of escorting vessels not to receive any
ship in the convoy until its papers have been carefully examined
and it has been ascertained that it is not carrying contraband
of war.
Strict service regulations in that matter must be considered as
an indispensable condition for the exemption of the ships of the
convoy from visit and search.
The Austrian regulations contain numerous detailed provisions concerning
the formation and direction of convoys, as do also the Prussian regulations.
The armed neutrality of the Northern Powers in 1800 fixed, by regulations,
the conditions required for exempting convoys from visit. Other rules have
been established in treaties, e. g., in that of June 17, 1801, between Great
Britain and Russia (art. IV). Compare: Perels, op. cit., § 56.
686
INTERNATIONAL LAW CODIFIED
VISIT OF CONVOYED SHIPS
1882. Visiting convoyed ships shall be deemed legitimate:
(a) If the service regulations do not properly permit the com-
mander of the war vessel escorting the convoy to make a solemn
declaration as to the nationality of the ships and the destination of
the cargo;
(6) If the commander has refused to make the required declara-
tion, or has made it in an incomplete and unsatisfactory manner;
or if circumstances are such as to arouse the suspicion that he is
taking undue advantage of his position; or if, finally, serious rea-
sons exist for suspecting that he is not acting in good faith.
1883. Should a convoyed ship be properly subjected to visit
and search, the actual proceedings connected with the search
might, according to circumstances, be vested in the commander
of the escorting ship himself; or he could be admitted to attend it
personally or to delegate an officer for this purpose.
METHOD OF PROCEDURE IN CASE OF VISIT AND SEARCH
1884. Any war-vessel of the belligerent state, which is in waters
where it can proceed to undertake visit and search and wishes to
order a merchant ship to stop for the purpose of inquiring into its
nationality, must hoist the national flag and fire a gun.
The merchant ship must answer the signal by flying its own flag
and by stopping at once.
1885. The commander of the war-ship must in turn stop at a
convenient distance to be able, without danger, having regard to
the condition of the sea and wind, to send a ship's boat with an
officer and two or three men in order to proceed with the visit.
1886. The captain of the merchant ship is bound to present the
ship's papers, especially the certificate of nationality, the muster-
roll and all the documents likely to disclose the nature and desti-
nation of the cargo.
When the officer who has examined these documents finds them
to be in order and has no reason to suspect their genuineness, the
visit must be considered as ended. After mention of that formality
in the ship's papers, the ship is permitted to resume her voyage
undisturbed.
OF THE RIGHT OF VISIT
687
SEARCH AND EXAMINATION
1887. If the ship's papers are not perfectly regular and if serious
reasons exist for questioning the genuineness of these documents,
search and examination may be conducted for the purpose of as-
certaining whether other documents or suspicious goods are on
board.
The captain cannot object to this. In the event of his refusing, ,
the search and examination may be undertaken by force. Never-
theless, the officer of the war-ship must always act with the great-
est moderation and refrain from abusing his right; he must limit
the search to the matters concerning which there exists a more or
less well-founded suspicion, and ordinarily he should request the
captain of the ship to open all closed boxes and lockers.
1888. Serious grounds for suspicion shall be deemed to exist:
(a) If the ship has not stopped at once and heaved to on hearing
the gun of the war vessel;
(b) If it does not possess all the papers which it ought to have,
even if they are alleged to have fallen overboard or have been
destroyed during the voyage for any reason whatsoever;
(c) If the papers, while regular, appear to have been altered or
counterfeited;
(d) If the attitude of the commander and crew is such as to
arouse suspicion of irregularity;
(e) If the vessel is navigating under a false flag.
1889. In the cases specified and in any other where, owing to
peculiar circumstances, serious ground for suspicion might exist,
the search could be extended, by compelling the captain of the
ship to open the compartments, closets, and lockers. This exam-
ination could not, however, go so far as to justify the opening or
breaking open of boxes, casks, and closets, on the pretext of look-
ing for papers or suspicious goods.
Such acts could only be justified in case the captain has objected
to the search of sealed boxes suspected of containing the ship’s
papers or contraband of war.
SEIZURE OF THE VISITED SHIP
1890. Should it appear from the visit and search that the ship
stopped is open to the charge of violating the duties of neutrality,
688
INTERNATIONAL LAW CODIFIED
the belligerent would have the right to seize it, in accordance witb
the rules of procedure set forth in the following title.
1891. Seizure may likewise be made if the ship stopped shall be
unable, by its papers, to prove its status as a neutral ship, pro-
vided, of course, the belligerents resort to the exceptional right of
seizure of private enemy property.
Compare, so far as regards the right of seizure and the procedure relating
thereto, the important paper of M. Bulmerincg, Prises maritimes, Report to
the Institute of International Law, published in Revue de droit international et
de législation comparée, v. X, XI, XII and XIII.
TITLE XXII
OF THE RIGHT OF CAPTURE IN TIME OF NAVAL WARI
SEIZURE OF SHIP AND CARGO
1892. The seizure of ships or of the cargo on board must be con-
sidered as an exceptional act, justifiable by the necessities of the de-
fense. It consists in the right of a belligerent to take possession of
an enemy merchant ship or of the cargo on board, when, according
to the laws of war, he is permitted to appropriate the ship or cargo
or to prevent its arriving at its destination.
WHEN AND BY WHOM SEIZURE MAY BE MADE
1893. A seizure shall be deemed lawful only when made by a
war-vessel or by a vessel which, in conformity with the laws of
war, belongs to the military forces of the belligerent.
It shall be considered valid only when the legal formalities of
procedure laid down by international law, or arising from treaties,
are observed.
1894. A seizure is presumed to be made by a belligerent for the
1 We reprint the rules relating to the right of capture as we had formulated
them in the preceding editions of the present work, under nos. 1485-1544 of
the 2d edition (1898) and of the 3d edition (1900). We also append the rules
adopted by the Second Hague Conference of 1907 which serve to give more
authority to our rules, since they are substantially similar to them.
Our conception as to the necessity of constituting an international court to
have cognizance of prize cases was set forth as early as the time we published
our first work on international law, under the title of Nuovo Diritto interna-
zionale (Milan, 1865).
In that work, we held that the sovereign of the captor could not assume
jurisdiction either as regards the captured ship or its crew, and therefore that
the judgment of his court could not be regarded as final with respect to the
captured ship; that the belligerent could refer his agents who had made the
seizure to the decisions of his courts, in order to determine their conduct and
decide whether the responsibility should be assumed (p. 553; French transla-
tion of Pradier-Fodéré, v. 2, p. 526).
We subsequently elaborated our ideas: See Pasquale Fiore, Trattato di
diritto internazionale, 2d ed., 1884. § 1963; 3d ed., 1891, § 1770.
689
690
INTERNATIONAL LAW CODIFIED
purpose of protecting his interests and of meeting the requirements
of war. It shall be considered as made under his responsibility
and as giving rise to damages, if it is subsequently held by a com-
petent court to have been made arbitrarily without cause or in
violation of the laws and customs of war.
1895. A belligerent may seize any enemy merchant ship, or one
suspected of being an enemy, whenever the exceptional right of
confiscating the private property of the enemy in time of war is
admitted.
He shall have the right, furthermore, to seize a neutral merchant
ship or goods belonging to neutrals, whenever he shall have good
reason to consider these things as subject to confiscation under the
law of war, or when he shall be able to avail himself of the right
of preventing these things from reaching their destination. In
all these cases, he shall act upon his own responsibility.
FORMALITIES OF SEIZURE ACCORDING TO THE “COMMON" LAW OF
NATIONS
1896. The commander of a war-vessel or of a privateer, properly
commissioned, who wishes to undertake a seizure, must draw up a
report mentioning the legal status of the ship and cargo, at the
time, day, and date the seizure took place, the latitude and longi-
tude of the place where the ship was captured, and the circum-
stances which brought about the seizure.
1897. The commander must draw up a descriptive inventory
of all the documents and papers on board, noting the papers
missing, and making mention of the whole in a document signed
by himself and by the captain of the seized ship. All these docu-
ments, together with all writings and letters found on board shall
be placed together under cover, with the seals of the commander
and of the captain of the seized ship affixed thereto.
All closets and lockers, furthermore, must be locked and on
them shall be placed the respective seals of the commander and
the captain.
The inventory of the cargo and the list of the members of the
crew and of all on board must likewise be made out.
1898. A record shall be kept of each of these proceedings, to be
signed by the commander and the captain. These acts must be
OF THE RIGHT OF CAPTURE IN NAVAL WAR
691
considered as properly done in the interest both of the captor and
of the prize.
1899. The commander of a belligerent ship cannot refuse to
enter in the record any circumstance of fact on request of the
captain of the seized ship, or to comply with all the additional
formalities requested by the captain in the drawing up of the in-
ventory and the affixing of the seals, even if he deems these for-
malities useless.
PRESERVATION OF THINGS CAPTURED
1900. The captor must, if possible, preserve things captured in
their present condition, and neither change nor destroy them, ex-
cept in case of grave and urgent necessity duly established and
recognized.
If, however, the cargo should consist of things likely to deterio-
rate easily or already damaged, the commander of the war-ship
could take any measures best calculated to preserve them, but
always with the consent of the captain of the prize and in his
presence, or in the presence of the national consul of the captain.
Should it be necessary to sell part of the cargo, he could do so, re-
questing, as far as possible, the assistance of the consul.
WHEN MAY THE CAPTURED SHIP BE DESTROYED
1901. The commander of the war-ship cannot in principle con-
sider himself authorized to destroy or sink the captured ship.
He may, however, do so on his own responsibility (see rule 1940):
1st. When the condition of the sea or of the captured ship will
not permit of its remaining afloat;
2d. When the ship, owing to its bad condition or inferior mo-
tive power, is incapable of following the war-vessel, and may not,
without serious danger, be towed by the latter;
3d. When, on enemy war-ships approaching, it becomes im-
possible for the commander to keep the captured ship without
giving up his freedom of movement and running the risk of its
being retaken by the other belligerent;
4th. When it is not possible to send aboard the captured ship
a prize crew sufficient to insure its custody without too greatly
692
INTERNATIONAL LAW CODIFIED
reducing the crew necessary for the manning and security of the
war-vessel;
5th. When the taking of the captured ship into one of the ports
of the belligerent may interfere with the military operations in
which the war-ship is engaged.
1902. In all the cases contemplated in the foregoing rule, the
commander shall draw up a detailed report signed by two officers
of the ship, in which shall be stated the circumstances which led
to the destruction of the captured ship and the grounds on which
the commander may have ordered it. This report shall be re-
corded in the ship's log and forwarded to the superior naval au-
thorities in a copy signed by the commander.
In case of destruction of the prize, the commander is not only responsible
to the owner of the ship and of the cargo as stated under rule 1940, but also
to his own government. Furthermore, he may be liable to penalties provided
by the military penal code which punishes in time of war acts of destruction
not justified by actual necessities. (Compare rules 1484, 1530 et seq.)
1903. The commander who has ordered the destruction of the
captured ship must always transfer to his vessel and place in
safety all persons on board, all the papers and documents under
cover and seal (see rule 1897), a portion of the cargo which brought
about the seizure, and, as far as possible, the articles of greatest
value which may be considered as exempt from confiscation and
as belonging to their owners.
PERSONS ON BOARD
1904. The commander of the war-ship shall have the right to
declare as prisoners of war all persons belonging to the fighting
force of the enemy, as well as the members of the crew, provided
the ship has taken an active part in the military operations or has
by armed force resisted visit and search.
A CAPTURED SHIP TAKEN INTO A PORT OF THE CAPTOR BELLIGERENT
1905. When the commander of the war-ship can take his prize
to one of the ports of his country or of an allied state, he must do
so. On arriving at that port, he must turn over to the superior
military authorities a written report relating to the seizure and all
OF THE RIGHT OF CAPTURE IN NAVAL WAR
693
documents under cover and seal, and the military authorities
shall keep these documents in order to forward them, as received,
to the judicial authorities competent to undertake preliminary
examinations in ordinary cases, observing the formalities and
principles indicated in the following rule.
1906. The maritime authorities of the port into which the prize
may have been taken shall be obliged to record in a report all
the sealed papers turned over by the war-vessel, ascertaining the
exact condition of the seals. They shall, besides, receive the re-
ports made by the commander of the cruiser and by the captain of
the prize and the declarations of the members of the crew. They
shall take an inventory of the packages deposited, draw up a list
of the persons on board, and require that an account of the voy-
age be made without delay, and they shall prescribe the measures
necessary in order to determine the status of the ship and of its
cargo and request the delivery of the ship's papers on board the
captor vessel.
All these acts and formalities once accomplished, the maritime
authorities shall, without delay and within twenty-four hours,
deliver the documents relating to the seizure and status of the ship
to the judicial authorities competent to undertake preliminary
examinations in ordinary cases.
1907. Should there be, in the port where the initial proceedings
are to take place, a consul of the neutral state to which the prize
belongs, he would have the right to assist the naval administrative
officer in drawing up the report. In the absence of a consul, the
captain of the prize shall have the right to take part in such draft
or have himself represented therein and to have the circumstances
which he wishes particularly to have noted mentioned in the report.
FUNCTION OF THE JUDICIAL AUTHORITIES
1908. The judicial authorities competent to make the prelimi-
nary examination in ordinary cases shall perform all the subse-
quent acts which they may deem useful in enlightening the court
having jurisdiction in cases of maritime capture and prize. They
shall gather all the evidence which they deem capable of facilitating
a decision in the case and shall heed the demands of the interested
parties which request certain instructions or findings.
/
694
INTERNATIONAL LAW CODIFIED
1909. The said judicial authorities shall have the right to pre-
scribe urgent measures for the preservation of the captured ship
and of all its cargo. They shall have the right to order the restitu-
tion to their legitimate owners of all things which cannot right-
fully be seized as prize and especially those belonging to the mem-
bers of the crew or to the passengers who were on board the
captured vessel.
1910. On completing the initial examination, the judicial au-
thorities must without delay turn over the whole record to the
prize court instituted by their own government for passing in
first instance upon the validity of the capture. (Compare rule
1918.)
PRIZE TAKEN TO A NEUTRAL PORT
1911. A war-ship shall not have the right to take a prize into
a neutral port except in case of force majeure, or when it shall have
been compelled to take refuge therein, with its prize, owing to the
enemy's pursuit.
1912. The maritime authorities of the neutral port and the
judicial authorities competent preliminarily to examine ordinary
cases must perform all the acts indicated in the foregoing rules and
see that the captured ship is kept in custody in the port of refuge,
to remain there until such time as the International Prize Court
shall decide upon the validity of the capture and of the prize.
After judgment, the ship may be placed at the disposal of the
owner, if the prize court decides that the capture must be deemed
unlawful, or declares the ship and its cargo or a part thereof to be
free from seizure.
The same course shall be followed, when the government of the
belligerent state in whose name the capture was made and the
interested owners of the captured property shall have concluded
an amicable arrangement concerning the ship and the cargo.
The purpose of this rule is to protect adequately the rights of sovereignty
of a neutral state which has given refuge to a belligerent ship and to its
prize. It is inadmissible that a belligerent ship pursued by the enemy may
not only obtain shelter in a neutral port, but require from the sovereign of
that state the privilege of leaving the port with its prize, when the danger is
We cannot agree with certain jurists who hold that the neutral govern-
ment may declare the prize to be free, because that would constitute the
neutral a judge in the matter and no such jurisdiction can be admitted. Nor
do we believe that it may allow the cruiser to take its prize away, because it
over.
OF THE RIGHT OF CAPTURE IN NAVAL WAR
695
would be furnishing indirect assistance by giving it a refuge to accomplish a
belligerent operation, namely, that of placing its prize in safety.
Our rule, as formulated, guarantees all interests and insures the protection
of the neutral ship captured until such time as the International Prize Court
(rule 1914) shall have passed upon the case, or until such time as the parties
shall have concluded an amicable arrangement.
THE COMPETENT TRIBUNAL IN CASE OF SEIZURE AND PRIZE
1913. The lawfulness and regularity of the seizure of merchant
ships in time of war and of the confiscation of these vessels and
their cargo must be referred to the judgment of a special tribunal.
It shall be its duty to pass upon these matters and render a judg-
ment by which it shall determine the validity and regularity of the
seizure, and shall give to the belligerent, in whose name the seizure
was made, the right to take possession of the things seized as prize
of war, or shall order the belligerent to restore these things to their
owners.
1914. The special tribunal competent to pass upon the seizure
of merchant ships in time of war and upon the validity of prizes
shall be constituted as an international court invested with an
international jurisdiction.
CONSTITUTION OF THE PRIZE COURT
1915. The International Prize Court shall be constituted when
war breaks out in conformity with the rules to be established in a
Congress or in a Conference. It should be composed of five judges,
three of them to be designated by the representatives of neutral
states and chosen from among the judges of the highest tribunals
or admiralty courts of three neutral states, and one designated by
each of the belligerents.
1916. In the absence of rules established in advance through an
international agreement, the court competent to decide finally
between the belligerents and the interested parties in the matter
of prizes shall always have the special character of an international
court and the following rules shall always be observed for its con-
stitution:
Each belligerent shall name one judge; the three others shall be
appointed by neutral states, and they shall be selected by lot from
among the judges of the supreme or admiralty courts. Each of
these states shall have the right to designate three names and the
696
INTERNATIONAL LAW CODIFIED
three candidates who obtain the greatest number of votes shall
be deemed elected.
The interested governments shall agree upon designating one
of them to count the votes and, in the absence of an agreement,
such duty shall be considered as devolving upon the government
of one of the states which, according to the "common” law of
nations, is bound to absolute neutrality.
The belligerents shall have the right to be represented at the
balloting.
1917. Should one or both of the belligerent states fail to appoint
a judge, the rules established for the appointment of arbitrators
whom the parties decline to appoint in case of compulsory arbitra-
tion, as provided for in rule 1308, would be followed for his appoint-
ment.
SPECIAL PRIZE COURT CONSTITUTED BY THE BELLIGERENT
1918. Every belligerent state shall have the right to create a
special court for the prizes taken by his war-vessels, their function
being to decide upon the regularity of the seizures and the validity
of the prizes; but he may not ascribe to such court an international
jurisdiction in the matter of prize, by conferring upon it the power
of pronouncing judgments having final authority with respect to
the validity of the seizure and prize, with all the effects arising
from the recognition of the prize according to international law.
1919. The prize court instituted by each state according to its
municipal law shall be considered as a court of first instance with
respect to the property seized and subjected to confiscation.
Private persons condemned by the court shall have the right
either to accept the judgment or to attack it by appealing to the
International Prize Court, alone deemed competent to render
final judgment. (Id., 2d and 3d editions, rules 1511-1512.)
The rules here formulated have as their object the removal of the anomaly
of the sovereign of a state being at once a judge and a party. The litigation
as to the legitimacy of the prize in time of naval war always exists between
the government in whose name the capture was made and the owner of the
property captured, and as this litigation can only be settled by application
of the rules of international law (which determine when a neutral ship or an
enemy merchant ship may be seized and when the property seized must be
adjudged to the belligerent), it is inadmissible that the sovereign who is a
party in the case may himself be the judge. To admit that he may create a
OF THE RIGHT OF CAPTURE IN NAVAL WAR
697
court with final jurisdiction amounts to recognizing in him the faculty of
creating an international jurisdiction by virtue of a municipal law,--a possi-
bility contrary to the "common " law of nations. The sovereign måy create a
special prize commission for the sole purpose of examining the validity of acts
performed in his name and interest during war and of deciding whether the
commanders of his cruisers have complied with all the conditions required by
the laws and customs of war for undertaking the seizure and whether or not
it may be declared a valid and rightful prize. This commission should confine
its work to enabling the government to control the exercise of the right of prize
delegated by the sovereign of the state to the commanders of war vessels and
to duly commissioned privateers. But this fact cannot be considered as
finally settling the question, exclusively one of international law, as to whether
the seizure must be deemed rightful and the prize valid according to the rules
of “common” or conventional international law. The belligerent sovereign
cannot assume any right to settle that question, because he is a party in the
case, either as plaintiff or as defendant as against the owner of the prize, who
attacks the seizure as irregular and the prize as unlawful. Accordingly, final
judgment in the litigation must be referred to an international court, to be
constituted in conformity with the rules adopted in common accord by states
or with those established according to the "common" law of nations for the
constitution of tribunals of arbitration. We concede, that if the belligerent
sovereign has instituted a prize court, this jurisdiction may be considered as a
court of first instance and that, whatever may have been the decision of that
court, if the interested party accepts it, it may become final by the voluntary
submission of the losing party. But should the decision not be accepted, it
would be wholly impossible to concede that the state, in violation of the rules
of “common” law, has the right not only to create such a court but to declare
it competent to examine and decide, according to its own laws, questions of
international law. (Id., 2d and 3d editions.)
COMPETENCE OF THE INTERNATIONAL COURT
1920. The international court, constituted in accordance with
the foregoing rules to decide upon questions of maritime capture
and prizes, shall alone be deemed competent to adjudge finally
the cases submitted to its jurisdiction. It shall have the same
powers as an appellate court in case each of the belligerent states
had, according to rule 1918, instituted a special court in conformity
with its municipal law.
1921. The international prize court shall sit in the territory of a
neutral state.
PROCEDURE BEFORE THE PRIZE COURT
1922. With respect to the formalities of procedure before the
prize court, the rules established for proceedings before tribunals
of arbitration shall be observed.
698
INTERNATIONAL LAW CODIFIED
In conformity with these rules, all the preliminary examinations
designed to determine the alleged facts and to collect all the evi-
dence which the court may deem necessary in order to decide upon
the lawfulness of the prize shall be undertaken. In that respect,
both the captor and the prize shall alike be bound to furnish to the
court all the evidence which it may request in order to judge in-
telligently.
1923. Subject to its right to accept or reject any form of evidence,
the court must allow both parties to establish the lawfulness or
unlawfulness of the seizure and the validity or invalidity of the
confiscation.
1924. As to the right of the parties to be represented in the case
and to submit complaints and answers, with supporting briefs and
arguments; as well as all matters of delays and adjournments, the
preliminary examination of the case and organization of the pro-
ceedings, the rules of procedure applicable before tribunals of ar-
bitration shall be observed.
PROCEEDINGS RELATIVE TO THE LAWFULNESS AND REGULARITY OF
THE CAPTURE
1925. It is the office of the prize court to decide whether the
seizure of the merchant ship has been effected lawfully and regu-
larly.
1926. The court shall have to determine the lawfulness of the
seizure according to the rules of customary or conventional inter-
national law in time of war. In order to construe and apply these
rules, the court should take into account the state documents which
fix their meaning and the principles of conventional law established
between the states in dispute. It may also have reference to the
decisions of prize courts, which have construed and applied these
rules in similar cases, and to the opinion of writers.
1927. The court shall pass upon the admissibility of any par-
ticular evidence; it may not, however, reject the documents which
were not on board at the time of the seizure and which may exer-
cise a vital influence on the validity of the prize.
It shall evaluate all the evidence and circumstances of fact
according to its own convictions and prudent judgment, taking
into account the grave necessities of war, which compel the bellig-
OF THE RIGHT OF CAPTURE IN NAVAL WAR
699
erent to look carefully after his own defense and so to exercise all
his rights in that respect as to protect his interests most zealously
by making a capture whenever he considers himself legally war-
ranted in so doing.
WHEN THE CAPTURE OF A SHIP MAY BE CONSIDERED LEGITIMATE
1928. The capture of a ship shall be deemed legitimate:
(a) When, the confiscation of enemy merchant ships being ad-
mitted (compare rules 1716 et seq.), the vessel shall not be able
completely to establish its nationality;
(6) When the ship has no papers on board, or when those it has
are not quite regular; or when there are reasons for considering
them suspicious, e. g., when they have been visibly tampered
with, or there is reason to regard them as false or altered;
(c) When the ship, summoned to stop for purposes of visit, has
attempted to resist visit and search by force;
(d) When the visit and search have shown in fact that the ship
has taken an active part in the hostilities or purposed doing so;
A neutral ship shall always be considered as guilty of this offense
when it is chartered by the enemy especially to transport for his
account soldiers, provisions or stores intended for troops;
(e) When the ship carries articles of contraband of war and
occupies the status contemplated in rule 1872;
(1) When it is employed as a spy, or there is serious reason to
suspect it of espionage;
(g) When it has by force undertaken the defense of a hostile
ship which was attacked, or has attempted to defend it by taking
part in the fight;
(h) When it has been caught in the act of violating a blockade,
after it had received a special notification of the blockade.
WHEN A CAPTURE IS TO BE CONSIDERED UNLAWFUL
1929. A capture shall be considered absolutely unlawful and
contrary to customary international law, if the ship, by means of
its papers, was able to prove its neutral nationality and the peace-
ful purpose of its sailing.
The documents to be considered as decisive in that respect are;
00
INTERNATIONAL LAW CODIFIED
(a) The certificate of nationality;
(6) Documents relating to the ownership of the ship, when such
ownership is not established by the certificate of nationality;
(c) The charter party, with all the documents relating to the
nature and destination of the cargo;
(d) The muster-roll;
(e) The ship's papers establishing the route of the ship according
to its destination.
These documents if drawn up regularly and without alteration
must be regarded as sufficient to establish prima facie the legal
status of the ship and the destination of the cargo. Whenever
the genuineness of these documents is not open to suspicion, they
must be recognized as having complete probative force; and any
capture made, contrary to their tenor, on the ground of the na-
tionality of the ship or of the nature and destination of the cargo
must be considered unlawful.
CAPTURE ON ACCOUNT OF CARRIAGE OF CONTRABAND
1930. The capture of contraband of war may be considered
rightful only when it consists of articles comprised among those
constituting contraband according to the rules of international
law and destined for the other belligerent. (See rules 1850 et seq.)
1931. The seizure of goods constituting contraband of war
which the ship is taking in good faith to a neutral port may be
considered lawful whenever the belligerent shall be able to furnish
proof that the said goods are to be transhipped in that neutral port
to an enemy destination.
But, in that case, it will not be permissible to seize a neutral
ship transporting the said goods, unless it shall be established
prima facie that the ship has committed a hostile act by under-
taking voluntarily and knowingly to transport prohibited articles,
and has thus placed itself in the position of being considered as a
vessel in the service of the enemy. (Compare rule 1873.)
1932. The capture of any ship knowingly transporting contra-
band intended for the enemy shall be deemed lawful only when such
contraband shall, in quantity, constitute a considerable part (three-
fourths at least) of the cargo.
When the contraband shall be less in quantity, the belligerent
OF THE RIGHT OF CAPTURE IN NAVAL WAR
701
shall have the right to detain the ship when unable to provide
otherwise for the safekeeping of the seizable goods.
[See rule 1873(e), and note thereunder.—Transl.)
1933. The capture of a ship transporting contraband of war shall
not be considered lawful if the contraband does not constitute the
main part of the cargo, and especially if the captain has imme-
diately declared its presence on board.
In such case, only the seizure of the contraband goods is lawful.
CAPTURE FOR VIOLATION OF BLOCKADE
1934. Capture for violation of blockade shall be deemed lawful
whenever a merchant ship, having received special notification of
the blockade (see rule 1838), has crossed or attempted to cross the
blockade line.
1935. Capture for attempted violation of the blockade may also
be considered lawful, when undertaken against a ship which has, in
bad faith, tried to enter or leave the blockaded port, avoiding, by
means of some fraudulent stratagem, the receipt of the special
notification, and thus succeeding in escaping the vigilance of the
blockading squadron,--provided it cannot prove that it did not
know of the existence of the blockade.
1936. The capture of a merchant ship shall not be deemed
lawful when based solely upon the fact that the ship was chartered
for a destination which was a blockaded port or that it was bound
for such port. The ship must actually be in a position, at the time
of seizure, to be considered guilty of violation or attempted viola-
tion of blockade conformably to the foregoing rules.
JUDGMENT AS TO CAPTURE
1937. After having completed the examination of the case,
ascertained the facts and circumstances, and studied the arguments
of the parties, the court must determine whether, according to the
rules of international law, the capture may be regarded as regular
and made in accordance with the formalities required for its
legality, reserving its decision on the question of the belligerent's
right to confiscate the ship or the cargo, or a portion thereof.
702
INTERNATIONAL LAW CODIFIED
1938. When the ground of the capture is not considered in it-
self sufficient to legitimate it according to the principles of the
"common" law of nations, the court must order the belligerent
to restore the property captured, and, taking into account the
circumstances which may have brought it about, must determine
the responsibility of the belligerent, and, if the case warrants it,
condemn him in damages.
If the capture has been made in violation of the rules of inter-
national law, or has been proved groundless, the court must con-
demn the captor not only to restore the ship and its cargo to the
owners, but to indemnify the latter for all the damages they may
have sustained, and to pay the costs of the proceedings and judg-
ment.
1939. The captor shall likewise be condemned to pay damages,
as in the case contemplated in the second part of the preceding rule,
when the capture, made for a reason apparently legitimate, shall
have been subsequently maintained by reason of some irregularity
in procedure chargeable to the commander of the belligerent ship,
or by the non-observance of the rules established with respect to
the petition for the validation or adjudication of the capture, or
when an unjustified delay has occurred, chargeable to the gov-
ernment, in the petition for the validation of the capture. (See
rules 1905 et seq.)
The three preceding rules aim at distinguishing between the proceedings
relating to the regularity of the seizure and the proceedings for the confiscation
and condemnation of the property captured. The seizure is always made by
the commanders of warships and cruisers, authorized to that effect, under
their own responsibility and consequently under the responsibility of the
government in whose name the operations of war are being undertaken. It
inay happen that, while the capture was lawfully and regularly made, the
belligerent had no right to confiscate the property seized. Thus, if the seizure
had been that of a ship loaded with contraband of war which had been unable,
by its papers, to establish satisfactorily that it was bound for a neutral port,
it should be considered as accomplished in conformity with the principles of
common” law. If the ship owner, however, could subsequently furnish
proof of the peaceful destination of the ship and of the cargo, so as to preclude
any right of confiscation in favor of the belligerent as to the ship or cargo,
that fact would exclude the right of prize condemnation, but would not change,
as regards capture, the relations between the belligerent in whose name the
seizure may have been made, and the ship owner and the owners of the goods
who may have suffered damage on account of the seizure. The government
of the belligerent state in whose name the seizure may have been made would
certainly not be civilly liable for these damages. The whole matter reduces
itself to examining and deciding whether, considering the circumstances under
2
OF THE RIGHT OF CAPTURE IN NAVAL WAR
703
which the capture has been made, it had a plausible and justifiable reason.
If the court has ascertained the existence of such reason, all responsibility on
the part of the government must reasonably be denied, and the responsibility
will fall upon the ship owner or the captain towards the owners of the cargo
who have suffered damage on account of the seizure. For the captain, in
sailing in time of war without having on board absolutely regular papers, has
afforded the belligerent a just reason for considering him as an enemy and for
seizing the ship and its cargo. In view, also, of the fact that in the proceed-
ings for the validation of the prize, the captured party may be able fully to
prove that the ship does not belong to the enemy and has not violated the
duties of neutrality, so as absolutely to exclude, on the part of the vessel, any
act of hostility likely to cause it to be considered an enemy, that fact would
result in denying the right of the belligerent to confiscate the property seized,
but could not in any way interfere with his right to make the seizure, since
we have supposed that it took place under circumstances when, according to
international law, a well-founded and plausible reason for seizure existed.
How, then, could there be any responsibility of the government for the dam-
age sustained? Such responsibility could only exist in the second contingency
contemplated in our rule, namely, when the seizure, although made for a
reason apparently legitimate, may subsequently have been maintained owing
to irregularities in the procedure which should have been but was not followed,
or owing to an unjustified delay in the closing of the proceedings and in the
decision as to the validity of the seizure.
JUDGMENT IN THE CASE OF THE DESTRUCTION OF THE CAPTURED
SHIP
1940. When the commander of the cruiser which has made the
seizure is unable to take the prize to a safe anchorage and has
therefore sunk it, he is bound as a rule to make compensation for
any damage caused and he cannot be exonerated unless the prize
court, on the merits of the case, has decided that the belligerent
had the right to confiscate the destroyed ship and cargo.
Assuming, however, that the belligerent had the right to con-
fiscate only the ship and a part of the cargo, he should be held
liable for all damages caused to the owners of the portion of the
cargo with respect to which there was no right of prize condemna-
tion.
PROCEEDINGS CONCERNING THE RIGHTFULNESS OF THE PRIZE
1941. No belligerent state shall have the right to appropriate
a ship or its cargo seized in time of war, unless a judgment of the
international court has recognized its right of prize over the ship
or the cargo.
704
INTERNATIONAL LAW CODIFIED
WHEN CAN A SHIP BE CONFISCATED?
1942. The right of prize in a ship can only be accorded to a
belligerent in the following cases:
1st. If it belongs to the navy or is attached thereto (rules 1628-
1629) or if it is a privateer, assuming that privateering is resorted
to (see rules 1640, 1642);
2d. If it is the property of private persons, nationals of the
enemy state, assuming that the exceptional right of capturing
private enemy property contemplated in rules 1716 and following
is admitted;
3d. If, being a neutral ship carrying contraband of war, it is
subject to the right of prize under the rules hereinbefore laid
down (see rules 1872 et seq.);
4th. If it is guilty of violating or of an attempt to violate a
blockade under the provisions of rule 1848;
5th. If the acts by which it has by force resisted the summons to
submit to visit, are such as to cause it to be assimilated to a hostile
ship (see rule 1873 f);
6th. If it is guilty of participating in acts of hostility committed
in the name and in the interest of the enemy (see rule 1872).
1
WHEN CAN A SHIP'S CARGO BE CONFISCATED?
1943. The belligerent shall have the right of prize over the whole
cargo only in case of violation of blockade. In any other case,
non-contraband goods on board a ship subject to confiscation
must be restored to their owners, but without any obligation of
the captor government to indemnify them for damages arising
from the seizure.
This rule tends to restrict within just limits the right of prize. Assuming
that the ship is engaged in hostile acts and that, by reason of these acts, it
becomes an enemy, it does not follow that the owners of the goods who, for
commercial purposes, have used the ship for the peaceful carriage of their
goods, are to be treated as enemies. It must be said that, even according to
the exceptional right which allows the confiscation of enemy merchant ships,
it is admitted that the right of prize cannot include neutral goods on board.
Therefore, in none of the contingencies in which the ship would become an
enemy by the act of the shipowner or of the captain, could the extension of
the right of prize to the goods belonging to neutral citizens—which goods by
chance are on board such vessel-be justifiable. In case of blockade, it is the
destination of the goods for the blockaded port which constitutes the act of
OF THE RIGHT OF CAPTURE IN NAVAL WAR
705
hostility, and it is reasonable then to admit that the belligerent has the right
of prize over the ship and the cargo, as he has also undoubtedly the right to
appropriate to his own use any arms brought to the enemy to enable him to
continue his resistance. Thus, in case of confiscation for carriage of contra-
band, the right of prize (supposing it applicable not only to the prohibited
goods but to the ship as well), could never be extended to include non-contra-
band goods belonging to peaceful citizens and loaded by them on a ship with a
peaceful destination, without indirectly invoking the maxim: roba del nemico
confisca quella del amico. (The confiscation of the enemy's goods entails that
of the friend's goods.)
We have not admitted the state's obligation to pay damages to the owners,
to whom the goods must be restored, for the injuries they may have sus-
tained; because, if these owners are entitled to indemnity for the damage
suffered on account of the seizure, they must bring their action against the
shipowner who has invited the damage by his own act, and not against the
government which has exercised a legitimate right in time of war.
WHEN MUST THE RIGHT OF PRIZE BE DENIED?
1
1944. The claim of prize over a ship shall not be entertained
when the belligerent undertakes to base this right on his own law,
and especially on that promulgated at the beginning of the war.
The right of prize, indeed, must have as its basis the rules of
“common” international law which must govern the rights of
the belligerents; otherwise, it could not be considered as lawfully
exercised.
1945. The right of prize shall never be recognized when a ship
has been seized after the term fixed in the preliminaries of peace
for the cessation of hostilities, and the ignorance of the captor
war-ship that hostilities had ceased does not affect the matter.
1946. The capture of a ship seized in neutral territorial waters,
although meeting the other conditions required for confiscation
according to the "common” law of nations, shall be declared un-
lawful. If, then, it is proved that the belligerent has made the
capture in disregard of the inviolability of neutral territory, the
court must declare the prize to be free.
NATIONAL SHIPS RETAKEN
1947. The right of prize shall not be recognized with regard to
any national merchant ship or ship attached to the service of the
State during war which, having been taken by the enemy, shall
have been retaken before the International Prize Court had ad-
judged it to the captor as a good prize,
706
INTERNATIONAL LAW CODIFIED
1948. Every state must determine by its laws the status of
merchant ships taken by the enemy, which are retaken before
having been legally adjudged to the first captor.
A reward may be granted to those who shall have retaken the
ship, or shall have taken or rescued it after abandonment by the
capturing belligerent; but it shall always be considered contrary
to customary law to apply to merchant ships seized by the enemy
and retaken before having been legally adjudged to him, the same
rules as apply to enemy ships in the matter of the right of confisca-
tion and prize in time of war.
DECISION OF THE PRIZE COURT AND ITS EXECUTORY FORCE
1949. The decision of the prize court shall state the reasons on
which it is based, and the facts and the rules of law on which the
final judgment or order is founded.
It shall decide as to the lawfulness or unlawfulness of the capture
condemn the ship or the cargo or a portion of the cargo as legiti-
mate prize or order the liberation or restitution of free articles
to their legitimate owners.
It must, moreover, provide for the payment of damages, when
they are legally due, and fix all the expenses of the proceedings
and those arising out of the capture and custody of the property
seized.
1950. The decision shall be final between the parties and deemed
effective to determine their respective rights.
1951. The parties legally represented in the proceedings or
legally in default are bound to consider as final the decision of the
prize court, and must execute the decision in all its parts. In case
of refusal so to do, the action of the delinquent party shall be
deemed in violation of the "common” law of nations and may
give rise to all the measures of compulsion established for the
purpose of assuring respect for and compliance with international
obligations.
1952. The states which have signed and ratified or adhered to
the XIIth Hague Convention of 1907 must be considered as legally
bound to comply, in naval war, with the conventional rules adopted
by them with respect to the International Prize Court.
These rules shall, therefore, have binding legal force, subject,
OF THE RIGHT OF CAPTURE IN NAVAL WAR
707
however, to the express condition that the said Convention shall
apply as of right only in case the belligerent Powers are all parties
to the Convention or have adhered thereto.
With respect to the other States which have not signed and
ratified or adhered to the Convention, it must be considered as the
most exact expression of the general principles of law.
The Convention which bears the title Convention relalive to the creation of an
International Prize Court is a part of the Hague General Act of October 18,
1907. It was signed on June 30, 1908, by almost all the states represented.
On that date it lacked the signatures of Brazil, China, the Dominican Re-
public, Great Britain, Greece, Japan, Luxemburg, Peru, Portugal, Roumania,
and Venezuela.
It was signed subject to a reservation as to article 15 by Chile, Cuba, Ecua-
dor, Guatemala, Haiti, Persia, Salvador, Siam, Turkey and Uruguay.
The text of the Convention follows:
PART I
GENERAL PROVISIONS
Article 1. The validity of the capture of a merchant ship or its cargo is decided
before a prize court in accordance with the present Convention when neutral or
enemy property is involved.
Art. 2. Jurisdiction in matters of prize is exercised in the first instance by
the prize courts of the belligerent captor.
The judgments of these courts are pronounced in public or are officially notified
to parties concerned who are neutrals or enemies.
Art. 3. The judgments of national prize courts may be brought before the
International Prize Court:
1. When the judgment of the national prize courts affects the property of a
neutral Power or individual;
2. When the judgment affects enemy property and relates to:
(a) Cargo on board a neutral ship;
(b) An enemy ship captured in the terrilorial waters of a neutral Power, when
that Power has not made the capture the subject of a diplomatic claim;
(c) A claim based upon the allegation that the seizure has been effected in viola-
tion, either of the provisions of a convention in force between the bel-
ligerent Powers or of an enactment issued by the belligerent captor.
The appeal against the judgment of the national court can be based on the ground
that the judgment was wrong either in fact or in law.
Art. 4. An appeal may be brought:
1. By a neutral Power, if the judgment of the national tribunals injuriously
affects its property or the property of its nationals (article 3, no. 1) or if the cap-
ture of an enemy vessel is alleged to have taken place in the territorial waters of
that Power (article 3, no. 26);
2. By a neutral individual, if the judgment of the national court injuriously
affects his property (article 3, no. 1) subject, however, to the reservation that the
Power to which he belongs may forbid him to bring the case before the Court, or may
itself undertake the proceedings in his place;
.
708
INTERNATIONAL LAW CODIFIED":
3. By an individual subject or citizen of an enemy Power, if the judgment of
the national court injuriously affects his property in the cases referred to in ar-
ticle 3, no. 2, except that mentioned in paragraph b.
Art. 5. An appeal may also be brought on the same conditions as in the pre-
ceding article, by persons belonging either to neutral states or to the enemy, deriving
their rights from and entitled to represent an individual qualified to appeal and
who have taken part in the proceedings before the national court. Persons so en-
titled may appeal separately to the extent of their interest.
The same rule applies in the case of persons belonging either to neutral states or
to the enemy who derive their rights from and are entitled to represent a neutral
Power whose property was the subject of the decision.
Art. 6. When, in accordance with the above article 3, the International Court
has jurisdiction, the national courts cannot deal with a case in more than two
instances. The municipal law of the belligerent captor shall decide whether the
case may be brought before the International Court after judgment has been given
in first instance or only after an appeal.
If the national courts fail to give final judgment within two years from the date
of capture, the case may be carried direct to the International Court.
Art. 7. If a question of law to be decided is covered by a treaty in force between
the belligerent captor and a Power which is itself or whose subject or citizen is a
party to the proceedings, the Court is governed by the provisions of the said treaty.
In the absence of such provisions, the Court shall apply the rules of international
law. If no generally recognized rule exists the Court shall give judgment in ac-
cordance with the general principles of justice and equity.
The above provisions apply equally to questions relating to the order and mode
of proof.
If, in accordance with Article 3, no. 2, c, the ground of appeal is the violation
of an enactment issued by the belligerent captor, the Court will enforce the enact-
ment.
The Court may disregard failure to comply wilh the procedure laid down in
the enactments of the belligerent captor, when it is of opinion that the consequences
of complying therewith are unjust and inequitable.
Art. 8. If the Court pronounces the capture of the vessel or cargo to be valid,
they shall be disposed of in accordance with the laws of the belligerent captor.
If it pronounces the capture to be null, the Court shall order the restitution of
the vessel or cargo, and shall fix, if there is occasion, the amount of the damages.
If the vessel or cargo shall have been sold or destroyed, the Court shall determine
the compensation to be given to the owner on this account.
If the national court pronounced the capture to be null, the Court can only be
asked to decide as to the damages.
Art. 9. The contracting Powers undertake to submit in good faith to the deci-
sions of the International Prize Court and lo carry them out with the least possible
delay.
OF THE RIGHT OF CAPTURE IN NAVAL WAR
709
PART II
CONSTITUTION OF THE INTERNATIONAL PRIZE COURT
Art. 10. The International Prize Court is composed of judges and deputy
judges, who will be appointed by the contracting Powers, and must all be jurists
of known proficiency in questions of international maritime law, and of the highest .
moral reputation.
The appointment of these judges and deputy judges shall be made within six
months after the ratification of the present Convention.
Art. 11. The judges and deputy judges are appointed for a period of six years,
reckoned from the date on which the notification of their appointment is received
by the Administrative Council established by the Convention for the pacific settle-
ment of international disputes of the 29th July, 1899. Their appointments can
be renewed.
Should one of the judges or deputy judges die or resign, the same procedure is
followed for filling the vacancy as was followed for appointing him. In this case,
the appointment is made for a fresh period of six years.
Art. 12. The judges of the International Prize Court are all equal in rank
and have precedence according to the date on which the notification of their ap-
pointment was received (article 11, paragraph 1), and if they sit by rota (article 15,
paragraph 2), according to the date on which they entered upon their duties. When
the date is the same the senior in age takes precedence.
The deputy judges when acting are assimilated to the judges. They rank, how-
ever, after them.
Art. 13. The judges enjoy diplomatic privileges and immunities in the per-
formance of their duties and when outside their own country.
Before taking their seat, the judges must swear, or make a solemn promise be-
fore the Administrative Council, to discharge their duties impartially and con-
scientiously.
Art. 14. The Court is composed of fifteen judges; nine judges constitute a
quorum.
A judge who is absent or prevented from sitting is replaced by the deputy judge.
Art. 15. The judges appointed by the following contracting Powers; Ger-
many, the United States of America, Austria-Hungary, France, Great Britain,
Italy, Japan, and Russia are always summoned to sit.
The judges and deputy judges appointed by the other contracting Powers sit by
rota as shown in the table annexed to the present Convention; their duties may
be performed successively by the same person. The same judge may be appointed
by several of the said Powers.
Art. 16. If a belligerent Power has, according to the rota, no judge sitting in
the Court, it may ask that the judge appointed by it should take part in the settle-
ment 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. This arrange-
ment does not affect the judges appointed by the other,belligerent.
Art. 17. 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.
Art. 18. The belligerent captor is entitled to appoint a naval officer of high
rank to sit as assessor, but with no voice in the decision. A neutral Power,
710
INTERNATIONAL LAW CODIFIED
which is a party to the proceedings or whose subject or citizen is a party, has the
same right of appointment; if as the result of this last provision more than one
Power is concerned, they must agree among themselves, if necessary by lot, on the
officer to be appointed.
Art. 19. The Court elecls its president and vice-president by an absolute ma-
jority of the votes cast After two ballots, the election is made by a bare majority,
and, in case the votes are equal, by lot.
Art. 20. The judges on the International Prize Court are entitled to traveling
allowances in accordance with the regulations in force in their own country, and
in addition receive, while the Court is silting or while they are carrying out duties
conferred upon them by the Court, a sum of 100 Netherland florins per diem.
These payments are included in the general expenses of the Court dealt with in
Article 47, and are paid through the International Bureau established by the
Convention of the 29th July, 1899.
The judges may not receive from their own Government or from that of any
other Power any remuneration in their capacity of members of the Court.
Art. 21. The seat of the International Prize Court is at The Hague and it
cannot, except in the cases of force majeure, be transferred elsewhere without the
consent of the belligerenis.
Art. 22. The Administrative Council fulfills with regard to the International
Prize Court, the same functions as to the Permanent Court of Arbitration, but
only representatives of contracting Powers will be members of it.
Art. 23. The International Bureau acts as registry to the International Prize
Court and must place its offices and staff at the disposal of the Court. It has charge
of the archives and carries out the administrative work.
The Secretary-General of the International Bureau acts as registrar.
The necessary secretaries to assist the registrar, translators and short-hand
writers are appointed and sworn in by the Court.
Art. 24. The Court determines which language it will itself use and what
languages may be used before it.
In every case the official language of the national courts which have had cog-
nizance of the case may be used before the Court.
Art. 25. Powers which are concerned in a case may appoint special agents
to act as intermediaries between themselves and the Court. They may also engage
counsel and advocates to defend their rights and interests.
Art. 26. A private person concerned in a case will be represented before the
Court by an allorney, who must be eilher an advocate qualified to plead before a
court of appeal or a high court of one of the contracting States, or a lawyer prac-
tising before a similar court, or lastly, a professor of law at one of the higher teach-
ing centers of those countries.
Art. 27. For all notices to be served, in particular on the parties, witnesses
or experts, the court may apply direct to the Government of the State on whose
territory the service is to be carried out. The same rule applies in the case of steps
being taken to procure evidence.
The requests for this purpose are to be executed so far as the means at the dis-
posal of the Power applied to under its municipal law allow. They cannot be
rejected unless the Power in question considers them calculated to impair its sov-
ereign rights or its safety. If the request is complied with, the fees charged must
only comprise the expenses actually incurred.
The Court is equally entitled to act through the Power on whose territory it sits.
Notices to be given to parties in the place where the Court sits may be served
through the International Bureau.
OF THE RIGHT OF CAPTURE IN NAVAL WAR
711
PART III
PROCEDURE IN THE INTERNATIONAL PRIZE COURT
Art. 28. An appeal to the International Prize Court is entered by means of
a written declaration made in the national court which has already dealt with the
case or addressed io the International Bureau; in the latter case the appeal can be
entered by telegram.
The period within which the appeal must be entered is fixed at 120 days, count-
ing from the day the decision is delivered or notified (article 2, paragraph 2).
Art. 29. If the notice of appeal is entered in the national court, this Court,
without considering the question whether the appeal was entered in due time, will
within seven days transmit the record of the case to the International Bureau.
If the notice of appeal is sent to the International Bureau, the Bureau will
immediately inform the national court, when possible by telegraph. The latter
will transmit the record as provided in the preceding paragraph.
When the appeal is brought by a neutral individual the International Bureau
at once informs by telegraph the individual's Government, in order to enable it to
enforce the rights it enjoys under Article 4, paragraph 2.
Art. 30. In the case provided for in Article 6, paragraph 2, the notice of ap-
peal can be addressed to the International Bureau only. It must be entered within
thirty days of the expiration of the period of two years.
Art. 31. If the appellant does not enter his appeal within the period laid
down in Articles 28 or 30, it shall be rejected without discussion.
Provided that he can show that he was prevented from so doing by force majeure,
and that the appeal was entered within sixty days after the circumstances which
prevented him entering it before had ceased to operate, the Court can, after hearing
'the respondent, grant relief from the effect of the above provision.
Art. 32. If the appeal is entered in time, a certified copy of the notice of ap-
peal is forthwith offically transmilted by the Court to the respondent.
Art. 33. If, in addition to the parties who are before the Court, there are other
parties concerned who are entitled to appeal, or if, in the case referred to in Article
29, paragraph 3, the Government which has received notice of an appeal has not
announced its decision, the Court will await before dealing with the case the ex-
piration of the period laid down in Articles 28 or 30.
Art. 34. The procedure before the International Court includes two distinct
parts: the written pleadings and oral discussions.
The written pleadings consist of the deposit and exchange of cases, counter-
cases, and, if necessary, of replies, of which the order is fixed by the Court, as
also the periods within which they must be delivered. The parties annex thereto
all papers and documents of which they intend to make use.
A certified copy of every document produced by one party must be communi-
cated to the other party through the medium of the court.
Art. 35. After the close of the pleadings, a public sitting is held on a day
fixed by the Court.
At this sitting the parties state their view of the case both as to the law and as
to the facts.
The Court may, at any stage of the proceedings, suspend speeches of counsel,
either at the request of one of the parties, or on their own initiative, in order that
supplementary evidence may be obtained.
Art. 36. The International Court may order the supplementary evidence to
be taken either in the manner provided by Article 27, or before itself, or one or
712
INTERNATIONAL LAW CODIFIED
more of the members of the Court, provided that this can be done without resort to
compulsion or the use of threats.
If steps are to be taken for the purpose of obtaining evidence by members of the
Court outside the territory where it is sitting, the consent of the foreign Govern-
ment must be obtained.
Art. 37. The parties are summoned to take part in all stages of the proceedings
and receive certified copies of the minutes.
Art. 38. The discussions are under the control of the president or vice-presi-
dent, or, in case they are absent or cannot act, of the senior judge present.
The judge appointed by a belligerent party cannot preside.
Art. 39. The discussions take place in public, subject to the right of a Govern-
ment which is a party to the case to demand that they be held in private.
Minutes are taken of these discussions and signed by the president and regis-
trar, and these minutes alone have an authentic character.
Art. 40. If a party does not appear, despite the fact that he has been duly
cited, or if a party fails to comply with some step within the period fixed by the
Court, the case proceeds without that parly, and the Court gives judgment in ac-
cordance with the material at its disposal.
Art. 41. The Court officially notifies to the parties decrees or decisions made.
in their absence.
Art. 42. The Court takes into consideration, in arriving at its decision all
the facts, evidence and oral statements.
Art. 43. The Court considers ils decision in private and the proceedings are
secret.
All questions are decided by a majority of the judges present. If the number
of judges is even and equally divided, the vole of the junior judge in the order of
precedence laid down in Article 12, paragraph 1, is not counted.
Art. 44. The judgment of the Court must give the reasons on which it is based.
It contains the names of the judges taking part in it, and also of the assessors, if
any; it is signed by the president and registrar.
Art. 45. The sentence is pronounced in public sitling, the parties concerned
being present or duly summoned to attend; the sentence is officially communicated
to the parties.
When this communication has been made, the Court transmits to the national
prize court the record of the case, together with copies of the various decisions ar-
rived at and of the minutes of the proceedings.
Art. 46. Each party pays its own costs. The party against whom the Court
decides bears, in addition, the costs of the trial, and also pays 1 per cent of the
value of the subject-matter of the case as a contribution to the general expenses of
the International Court. The amount of these payments is fixed in the judgment
of the Court.
If the appeal is brought by an individual, he will furnish the International
Bureau with security to an amount fixed by the Court, for the purpose of guaran-
teeing eventual fulfillment of the two obligations mentioned in the preceding para-
graph. The Court is entilled to postpone the opening of the proceedings until the
security has been furnished.
Art. 47. The general expenses of the International Prize Court are borne by
the contracting Powers in proportion to their share in the composition of the Court
as laid down in Article 15 and in the annexed table. The appointment of deputy
judges does not involve any contribution.
The Administrative Council applies to the Powers for the funds requisite for
the working of the Court.
OF THE RIGHT OF CAPTURE IN NAVAL WAR
713
Art. 48. When the Court is not sitting, the duties conferred upon it by Article
32, Article 34, paragraphs 2 and 3, Article 35, paragraph 1, and Article 46,
paragraph 3, are discharged by a delegation of three judges appointed by the Court.
This delegation decides by a majority of votes.
Art. 49. The Court itself draws up its own rules of procedure, which must
be communicated to the contracting Powers.
It will meet to elaborate these rules within a year of the ratification of the present
Convention.
Art. 50. The Court may propose modifications in the provisions of the present
Convention concerning procedure. These proposals are communicated, through
the medium of the Netherland Government, to the contracting Powers, which will
consider together as to the measures to be taken.
TITLE IV
FINAL PROVISIONS
Art. 51. The present Convention does not apply as of right except when the
belligerent Powers are all parties to the Convention.
It is further fully understood that an appeal to the International Prize Court
can only be brought by a contracting Power or the subject or citizen of a contract-
ing Power.
In the cases mentioned in Article 5, the appeal is only admitted when both the
owner and the person entitled to represent him are equally contracting Powers
or the subjects or citizens of contracting Powers.
N. B. We do not give the subsequent articles (52–57), which refer to the
ratification, adhesion and entrance into force of the Convention; its duration,
fixed at 12 years from the date of its coming into force, with tacit renewal
for periods of six years unless denounced; the method of amendment and
other minor provisions.
(An additional protocol was signed at The Hague, September 19, 1910, by
the representatives of the United States of America, the Argentine Republic,
Austria-Hungary, Chile, Denmark, Germany, Spain, France, Great Britain,
Japan, Norway, the Netherlands, and Sweden, among some of whom difficul-
ties of a constitutional nature prevented the acceptance of the Convention of
October 18, 1907. The protocol contains the following articles:
Art. 1. The Powers signatory or adhering to the Hague Convention of Oc-
tober 18, 1907, relative to the establishment of an International Court of Prize,
which are prevented by difficulties of a constitutional nature from accepting the
said Convention in its present form, have the right to declare in the instrument
of ratification or adherence that in prize cases, whereof their national courts have
jurisdiction, recourse to the International Court of Prize can only be exercised
against them in the form of an action in damages for the injury caused by the
capture.
Art. 2. In the case of recourse to the International Court of Prize, in the form
of an action for damages, Article 8 of the Convention is not applicable; it is not
for the Court to pass upon the validity or the nullity of the capture, nor to reserve
or affirm the decision of the national tribunals.
If the capture is considered illegal, the Court determines the amount of damages
to be allowed, if any, to the claimants.
Art. 3. The conditions to which recourse to the International Court of Prize
is subject by the Convention are applicable to the action in damages.
714
INTERNATIONAL LAW CODIFIED
Art
. 4. Under reserve of the provisions hereinafter stated the rules of procedure
established by the Convention for recourse to the International Court of Prize
shall be observed in the action in damages.
Art. 5. In derogation of Article 28, paragraph 1, of the Convention, the suit
for damages can only be brought before the International Court of Prize by means
of a written declaration addressed to the International Bureau of the Permanent
Court of Arbitration; the case may even be brought before the Bureau by telegram.
Art. 6. In derogation of Article 29 of the Convention the International Bureau
shall notify directly, and if possible, by telegram, the Government of the belligerent
captor of the declaration of action brought before it.
The Government of the belligerent captor, without considering whether the pre-
scribed periods of time have been observed, shall, within seven days of the receipt
of the notification, transmit to the International Bureau the case, appending
thereto a certified copy of the decision, if any, rendered by the national court.
Art. 7. In derogation of Article 45, paragraph 2, of the Convention the Court
rendering its decision and notifying it to the parties to the suit shall send directly
to the Government of the belligerent captor the record of the case submitted to it,
appending thereto a copy of the various intervening decisions as well as a copy
of the minutes of the preliminary proceedings.-Transl.]
.
TITLE XXIII
THE END OF WAR
WHEN IS WAR TO BE CONSIDERED AS ENDED?
1953. A war between two or more States can only be considered
as legally ended by the conclusion of peace, stipulated in a final
treaty of peace.
When the war is waged by a people against a State, or by a fac-
tion, under the conditions necessary for belligerency, against the
established government, it is ended by the complete submission
of the vanquished to the victor.
The last part of this rule finds its application when a people struggles against
the constituted power for the purpose of settling by force a question of public
internal law. This is what happens, for example, in the case of a war of seces-
sion, that is, when a portion of the population of the State undertakes, by
force of arms, to constitute a separate and independent State, or when the
purpose of the war is to modify the political constitution of the State. In
both of these cases, it must be considered as ended when the armed struggle
has realized the object contemplated, namely, that of modifying the organiza-
tion of the public powers or the relations, with the sovereign State, those, for
instance, of vassal or colony. In none of these contingencies will a treaty of
peace be necessary; the war will be considered as ended by the realization of
the accomplished and definitive fact. We say definitive, having in mind the
rules concerning civil war (rules 124 et seq.) and recognition (rules 167 et seq.).
PRELIMINARIES OF PEACE
1954. War may not be considered as ended by the mere cessa-
tion of hostilities; in such a case the rules governing suspension of
arms or armistice shall be applied.
1955. Military occupation, although extended over a consider-
able period of time and rendered stable by the constitution of a
government, cannot have the effect of causing the war to be con-
sidered as legally at an end, as a result of the tacit relinquishment
of the territory occupied; but a formal treaty shall always be re-
quired, which shall recognize the new state of affairs, and thus
war be declared at an end.
715
716
INTERNATIONAL LAW CODIFIED
1956. The preliminaries of peace duly concluded have not the
effect of legally putting an end to the war; they have merely the
legal value of a provisional treaty of peace stipulated by the bellig-
erent parties with the object of concluding peace forthwith upon
the bases agreed upon between them through the preliminaries of
peace, the details of which are to be stated with precision only in
the final treaty.
The preliminaries of peace ought not, therefore, to be regarded as mere
preparatory agreements, as compacts de contrahendo, but as acts acknowledging
a provisional international obligation of peace. We use the term provisional,
not in the sense that the agreement may be considered as a convention of
general armistice preparatory to negotiating peace, but in the sense that the
parties, who cannot immediately agree on the detailed terms of peace, fix
the essential conditions of such peace, and reserve their right to negotiate
forthwith and with reciprocal fairness the details relating to minor points,
in order to bring to realization the principal points already agreed upon in the
preliminary treaty.
THE TREATY OF PEACE
1957. Those deemed capable of stipulating the conditions of
peace shall be the persons who are actually in possession of the
sovereign authority and to whom the government of the State is
intrusted.
When the national party, which represents the majority of the citizens, has
established a provisional government in place of the legitimate sovereign who
is vanquished and a prisoner, or has abdicated, or is for any reason whatever
actually prevented from exercising his sovereign powers, the persons who fulfill
the functions of the sovereign and in fact constitute the government must be
deemed capable of consenting to the conditions of peace.
1958. The treaty of peace shall be deemed valid when it fulfills
the conditions required for the validity of any other treaty. (See
rules 747 et seg., 757-758.)
1959. It is the victor's privilege to condition the conclusion of
peace upon such terms as he deems most likely to satisfy his
legitimate rights.
When, however, the conditions forced by the victor upon the
vanquished, and which the latter cannot refuse to discuss, are so
severe as to entail the economic, political, or moral ruin of the
vanquished state, it may be a ground for convoking the Confer-
ence, to which the conditions of peace are submitted. The col-
lective intervention of the states must, indeed, in that case be
THE END OF WAR
717
admitted for the purpose of determining the conditions of peace
which are best adapted to the principles of international justice,-
principles that the victor cannot with impunity violate to the
detriment of the vanquished. (See rules 559, 788, 1212g, 1240g
and h.)
1960. The forced cession of a portion of the territory of the
vanquished state may be imposed as a condition of peace, but it
cannot be deemed valid unless stipulated in a treaty of peace
properly concluded in conformity with the rules which must
govern the cession of territory between states.
RATIFICATION OF THE TREATY OF PEACE
1961. When, under the provisions of constitutional law, peace
can only be concluded on condition that the treaty be ratified by the
legislative bodies, the war must be considered at an end by the
stipulation of the treaty of peace, but subject to the condition
subsequent of ratification. The agreement must, however, be
regarded as effective and cannot be considered as broken unless
the legislative assemblies have expressly refused to ratify the treaty.
1962. As soon as the decision not to ratify the treaty has been
finally reached, the law of war shall once more be in full force and
hostile acts may again be undertaken without reservation or con-
dition.
1963. In no case can there be any interference with the right of a
party concerned in the case to bring about the meeting of a Con-
ference and to submit the treaty of peace to that assembly in order
to have it revoked or modified, when the conditions imposed by the
victor may be considered as too detrimental to the legitimate rights
of the vanquished state or contrary to the general principles of
international law.
METHOD OF EXECUTING THE TREATY
1964. The provisions of the treaty of peace, until revoked, must
be executed with integrity and good faith and deemed binding
upon the state which has accepted them, even where they were
imposed by the victor through preponderance of his military force,
718
INTERNATIONAL LAW CODIFIED
their effect being to modify the respective historical conditions of
the two adversaries and the rights previously acquired by each
of them. (Compare rule 757.)
GENERAL EFFECTS OF THE TREATY OF PEACE
1965. The general effect of the conclusion of peace is a renuncia-
tion on the part of the two belligerent states of any action re-
lating to the facts which brought about the war and of all differ-
ences which gave rise thereto, it being admitted that everything is
finally settled by the treaty of peace.
1966. The treaty of peace, according to “common” law, pro-
duces certain general effects, which are:
(a) The absolute cessation of every act of hostility from the day
of its signature and ratification, and the nullity of any act of war-
fare accomplished in ignorance of the conclusion of peace;
(6) The release of prisoners of war;
(c) The re-establishment in force of the treaties previously con-
cluded between the two states and suspended on account of the
war;
(d) General amnesty;
(e) The restoration of the exercise of the rights of sovereignty
suspended during the war;
(f) The recognition of actual possessions at the time of the con-
clusion of peace, when not otherwise provided in the treaty itself.
1967. It is incumbent upon the parties to determine in the
treaty of peace with clearness and precision the effects of the ces-
sation of the war; carefully to avoid surprises; to eliminate am-
biguities with the greatest attention; not to leave unprovided any
matter likely to give rise to discussion; and to avoid subtleties
which may bring about misunderstandings and differences of
interpretation.
CESSATION OF HOSTILITIES
1968. The parties must state in the preliminaries of peace the
day on which hostilities must cease during the time necessary for
the ratification of the treaty as concluded and signed, or stipulate
a general armistice until the treaty is ratified.
THE END OF WAR
719
In the absence of all agreement in the matter, acts of hostility
can only be considered unlawful from the time peace must be
deemed to be finally concluded by the ratification of the treaty
of peace stipulated.
During the Russo-Japanese war, hostilities continued while the treaty of
peace signed on September 5, 1905, was being ratified; they stopped effectively
only on the 16th of the same month by virtue of the armistice convention
concluded September 14th.
PRISONERS OF WAR
1969. Prisoners of war are entitled to be set free on the conclu-
sion of peace, unless they have been found guilty of offenses com-
mitted during their captivity. They must not be detained to
answer for other previous offenses.
TREATIES SUSPENDED DURING WAR
1970. Once peace is concluded, all the treaties between the two
states which are compatible with the new state of affairs created
by the treaty of peace (unless, however, it provides otherwise),
re-enter into force. (Compare rules 845 and 859.)
AMNESTY
1971. When provided for in a general way in the treaty of peace,
amnesty must embrace in principle all offenses of a political char-
acter committed during the war by the belligerents themselves or
by persons belonging to the respective military forces.
Under this head must come all offenses committed in violation
of the laws and customs of war, which must be deemed blotted out
by amnesty, and persons convicted must be released on the con-
clusion of peace.
Amnesty cannot as a rule cover "common” law offenses com-
mitted during war by individuals, who are amenable to the ordin-
ary courts and punishable by “common" law.
720
INTERNATIONAL LAW CODIFIED
RE-ESTABLISHMENT OF THE EXERCISE OF THE RIGHTS OF SOVER-
EIGNTY
1972. Peace once concluded, the respective states must be
deemed ipso jure reinstated in the free exercise of all their rights
over all parts of the territory of their states recovered by them
under the treaty of peace, and over all persons under their juris-
diction, subject to the conditions named in the treaty.
1973. If the rule of the statu quo ante bellum has been stipulated
in the treaty of peace, it must be so construed and applied as not
to conflict with the rights acquired by individuals during the war,
and, saving an express declaration to the contrary, the following
rules must be observed.
1974. The sovereign reinstated in the possession of his territory
will have the right to restore everything to its previous condition
in so far as public administration is concerned; but he must take
into account the legal consequences arising from the military oc-
cupation of the territories restored to him.
He cannot exercise his sovereign rights retroactively, but will
have to respect all acts accomplished under the laws and customs
of war and all rights acquired by individuals during the occupa-
tion, whether derived from contracts legally concluded or from
judgments pronounced during the occupation and considered final.
(Compare rules 1542, 1561, 1567.)
1975. The said sovereign must take into account the laws and
regulations proclaimed by the enemy authorities and the legal con-
sequences arising therefrom during the interregnum.
He will have the right to subject to the authority of his own laws
and regulations (which re-enter into force ipso jure ipsoque facto)
any act, right, or expectation, from the time he has been reinstated;
- but he must respect already perfected rights acquired by individ-
uals during the hostile military occupation.
1976. The reinstated sovereign shall be considered as restored
at once to the possession of his rights of territorial sovereignty
even with respect to the enemy who has militarily occupied the
recovered territory.
Accordingly, the political laws and public law of the State shall
recover their full authority and the promulgation of the treaty
which restores the status quo ante bellum will authorize the sover-
THE END OF WAR
721
eign to repeal all modifications introduced into the said laws and
into public law during the military occupation, saving the respect
due to vested rights acquired by third parties.
1977. Property must be restored to the condition existing when
the enemy took possession of it, subject to the reservation of
changes and damage which have been the natural consequence
of the acts or operations of war.
It may be said, in application of this rule, that a stronghold, for instance,
must be restored to its condition before capture, provided that it was still in
the same condition at the time of the conclusion of peace. Supposing that it
had been disarmed and dismantled during the war, and that no provision
concerning it was contained in the treaty of peace, the party to whom the
fortress ought to be restored could not claim that the other party should be
bound to undertake the necessary work for replacing that fortress in the
statu quo ante bellum. That party could only be so bound if he had disarmed
and dismantled the fortress subsequently to the conclusion of peace.
RULES RESPECTING THE PRESENT STATE OF POSSESSION
1978. If, in the treaty of peace, the clause uti possidetis has been
incorporated, it would apply to the property belonging to the two
belligerent states, the possession of which they may have acquired
in consequence of the events of war. But, even in that case, the
rights of ownership of individuals, who, deprived of their property
during the war, might be entitled to indemnity, must be reserved.
The expression uti possidetis, accepted to indicate the confirmation of the
present state of possession, must be understood as signifying that, under that
clause, all the property which one or the other party has taken possession of
during the war must remain in its status of ownership as of the time of the con-
clusion of peace. Therefore, under the said clause, the personal property of the
enemy state (such as cannon, arms, ammunition, money, horses, means of
transport) taken by the adversary during the invasion of the enemy territory,
as also the proceeds of personal property collected by him, must remain in
the hands of the present possessor. It must also be admitted, under the same
clause, that when nothing to the contrary has been stipulated in the treaty of
peace, certain portions of the conquered territory must be considered as
transferred to the possessor, whose conquest must thus be regarded as legiti-
mated. (Compare Oppenheim, op. cit., v. 2, $ 273.)
1979. The parties who, by adopting the uti possidetis clause in
the treaty of peace, have thus intended to renounce the exercise
of all rights in consequence of the events and changes which oc-
curred during the war, will have to determine their respective
obligations as regards any rights of individuals to demand in-
722
INTERNATIONAL LAW CODIFIED
1
demnities for the damage they may have sustained in the course
of the hostilities. That the action may be instituted by individuals
under the law before the ordinary judicial courts, or may only be
brought before administrative bodies does not matter.
In the absence of an express provision on the subject, the prin-
ciples of the “common” law of nations concerning the respective
obligations of governments in case of succession between states
shall, by analogy, apply.
WAR DAMAGES
1980. The belligerents concluding a treaty of peace are bound
to determine without ambiguity who shall be responsible for the
indemnities due to individuals who have suffered damage during
the war. It is, indeed, equitable to indemnify these individuals as
far as possible, even when in strict law they have no legal remedy.
1981. Any property damage suffered by individuals during war,
when it is established that it is actually a result of military opera-
tions, gives rise to the right of obtaining compensation for the
injury sustained, either through judicial or administrative chan-
nels.
This rule is based on the principle that war is a relation between State and
State and that the ensemble of the acts accomplished in the course of hos-
tilities must be considered as having had the purpose of protecting the rights
and interests of the community. Therefore, citizens must be held responsible
for all the consequences of war uti universitas, and as such are bound to bear
all the consequences of it; but they cannot be considered as bound to such
obligation uti singuli. Consequently, those who have suffered a property
damage owing to acts of warfare should not be bound to bear it individually,
as if it were a damage arising from a case of force majeure or from an unex-
pected event. On the contrary, the damage must be charged to the com-
munity, because the object of war is always the respect of the rights of the
community which are defended by force of arms against a foreign state seek-
ing to violate them. It is, therefore, in accordance with natural principles of
justice and equity always to admit the right of action of an injured individual,
so that the damages individually suffered by him through acts of warfare may
be distributed equally among all the members of the community. Such dam-
ages must, indeed, be borne by the citizens uli universilas and not by the in-
dividuals who have sustained them uti singuli.
But, in order to obtain reparation for the damage will it always be possible
to appeal through judicial or administrative channels? This is, in our opinion,
the only really disputable question for the solution of which it will be neces-
sary to refer to the following rules.
1982. Individuals may resort to judicial remedies in order to
THE END OF WAR
723
obtain reparation for the damage caused during the war, when-
ever they have been deprived of their property under circumstances
not involving the immediate urgent necessities of war, although
motivated by the preventive measures and needs of defense of the
State.
The right and legal remedy of the injured party in such case
for the reparation of the injury sustained must be governed by the
principles applicable to damages suffered by individuals on the
ground of public utility (eminent domain) and must be exercised
in conformity with these principles.
This rule is applicable in any case of expropriation or damage suffered by
individuals during war or because of it, which is not the consequence of actual
belligerent operations; that is, of the struggle between adverse military forces
at the time hostile action is carried on through attack and defense, but which
is brought about by the exigencies of war and the preventive requirements of
defense. Such, for instance, would be the furnishing of foodstuffs and articles
required by the military commanders for the supply of the army and navy,
the expropriation of means of transportation or of ships for the needs of war,
or the deterioration or expropriation of property owing to the preventive re-
quirements of defense. There is no doubt, in our opinion, that the injured or
expropriated party who suffers damage for the advantage of the belligerents
must be compensated therefor. He must, therefore, be entitled to bring an
action against the State, which is bound to compensate him for the damage
under the terms of the treaty of peace or in conformity with the general prin-
ciples of law.
1983. The destruction or injury of the property of individuals
during war, in execution of a plan of attack or defense, when car-
ried out in a place where at the time no battle was in progress
(that is, at a time when no military action was taking place),
and undertaken as a preventive measure of defense, cannot be
considered as an act of war accomplished as an unavoidable neces-
sity or as force majeure. They must be regarded as events brought
about by the necessities of the defense and in the public interest
of the belligerent, and consequently the injured party cannot be
denied the right to be compensated for the damage suffered,
through recourse to a legal action against the State responsible
for the destruction or injury either under the general principles
of law, or under the provisions of the treaty of peace.
1984. Any damage suffered by individuals during battle and
arising from the actual military operations of attack and defense
cannot be considered as a war damage giving a right to reparation
or compensation.
724
INTERNATIONAL LAW CODIFIED
Anything that a belligerent deems it urgent to do or undertake
in the places where be meets the enemy, and where the struggle is
actually going on, must be considered as an "act of war” and the
damage arising therefrom to individuals must be deemed the result
of unavoidable necessity or force majeure.
The injured party may only be allowed, with a view to being
indemnified, an administrative action based on the principles of
equity.
The distinction made in the rules proposed may serve not only to deter-
mine the nature and character of the right acquired by individuals for obtain-
ing the reparation of their damage, but to establish which of the belligerents
is bound to make such reparation, when no special provisions on the subject
have been incorporated in the treaty of peace.
In our opinion, an act of war has the character of an act of necessity and
of force majeure. But not everything that may be brought about by the
necessities of war can have the character of an act of necessity and of force
majeure. When, in effect, the damage was inflicted, not in the course of battle
but at some other time for the purposes of military defense, it cannot be
deemed an unavoidable consequence of force majeure and of an act of war.
It is undeniable that in such case the injuries to property are the conse-
quence of public necessities, and that the right cannot be denied to the sov-
ereign, who must ensure the defense of the State, and to the belligerent, who
must see to the success of the war, of authorizing the said injuries with the
fullest authority. It must be borne in mind, however, that while that which
is done on account of public necessities and interest always bears the character
of a legitimate act and consequently must take precedence over private in-
terests, yet the sovereign who, in the interest of the nation, has ordered meas-
ures prejudicial to private property must indemnify the owners so injured.
Accordingly, the reparation of the damage must be governed by the rules ap-
plicable in case of expropriation on the ground of public utility rather than
by those applicable to damage caused by acts of war.
See the notes and references on this topic in the last chapter of our Trattato
di Diritto pubblico internazionale, v. 3, § 1842, and our note under the judg-
ment of the Court of Appeal of Lucca of March 8, 1880, in Journal du droit
international privé, 1883, p. 78.
(The rules above mentioned follow closely the principles laid down by the
French Conseil d'Etat. On the subject of war damages from the point of
view of municipal law and international law, see Borchard, The diplomatic
protection of citizens abroad, Pt. I, ch. VI, pp. 246–280.-Transl.)
IMMEDIATE EFFECT OF PEACE
1985. A treaty of peace duly concluded and legally ratified shall
have the general and immediate effect of ending ipso jure ipsoque
facto the application of the laws of war, with all the effects aris-
ing therefrom while it is in force, and to make the international
law of peace once more exclusively applicable.
CONCLUSION
OF THE SECOND AND THIRD ITALIAN EDITIONS
The rules that we have formulated as a code are not,
to be
sure,
those at present governing all the international relations of civil-
ized peoples; nor can it be foreseen when governments will be
able to agree upon proclaiming a body of rules constituting their
“common" law, and thus give a legal organization to the de facto
society existing among them. In proposing these rules, we have
not thought of claiming that international law may at once be
codified, and of solving by codification the very delicate problem
of endowing with a legal basis the society of states, and much less
have we entertained the foolhardy pretension of legislating. Our
sole purpose has been to demonstrate that the legal organization
of the society of states could be secured by establishing between
them a "common” law to govern all the relations arising out of
their association, and that it would be possible to find the means
of assuring respect for that law and to punish violations thereof.
We have endeavored to indicate a course to be followed, with
full confidence that others will be able to improve upon our work,
filling out the gaps, and laying down more satisfactory rules.
The codification of international law cannot be the work of one
person or of a small number of persons. It will be the final our-
come of the laborious efforts of a great many scientists and the
latest expression of the legal convictions which, with the progress
of civilization, will gradually be formed in the conscience of
civilized peoples and will undoubtedly modify the function of
diplomacy and of the most liberal governments.
The ultimate result will only be reached in a more or less remote
future. Difficulties will be the more easy to overcome as the
process will be gradual, beginning with the codification of those
parts of international law concerning which common legal con-
victions have already been formed and which refer to matters
respecting which the social conditions in the different countries are
725
726
INTERNATIONAL LAW CODIFIED
most uniform. In the meantime, every one should, according to
his own forces, by writing, teaching, discussion and any other
useful means, contribute to the progressive formation of uniform
legal convictions concerning the fundamental principles which
must prevail in the harmonious organization of the society of
civilized states, so as to evolve and elaborate little by little a
system corresponding to the actual present needs of the different
states.
We have endeavored, as a willing contributor, to bring our
grain of sand to the construction of this great edifice, and we have
deemed it expedient to set forth the result of our studies on the
different branches of international law by means of rules grouped
in the form of a code. Our sole aim, as we stated in our in-
troduction, has been to condense our scientific views, expressing
them as distinct propositions arranged in a systematic order, so as
to set them out, as far as possible, with the greatest clearness and
precision. If we have not succeeded in our task, we have at least
made all possible efforts in that direction.
In order to give the international society an organization con-
forming to the needs of modern times and to proclaim a body of
rules having the authority of law for all states, the initiative of the
most liberal governments will be necessary, and there is no doubt
in our mind that it will manifest itself.
THE PRIMITIVE LEGAL SOCIETY WAS THE FAMILY; THE LEGAL
CONFEDERATION OF CIVILIZED PEOPLES WILL BE THE LAST AND
HIGHEST MANIFESTATION OF LAW.
CONCLUSION OF THE FOURTH EDITION
It is some few years since we published in Italy the third edition
of the present work. It was printed in 1900 and, as stated in our
preface, was the exact reproduction of our second edition which was
issued in 1898, since the printing of the codified rules was made with
the plates of the second stereotyped edition. No one could foresee
that diplomacy would bring about a Conference for the purpose of
providing for the legal organization of the international society
through the codification of conventional rules intended to insure
peace. Yet this is what happened on the initiative of the Czar,
1 See our Introduction, $ 25.
CONCLUSION
727
who, in 1898, proposed the meeting of the First Peace Conference,
which began the work of codification by formulating the conven-
tional rules established in common agreement in the final Act of
The Hague of July 29, 1899.
This first Conference was the most important event of our time.
It established the important precedent of the meeting of states in a
Congress, without distinction as to greater and lesser Powers,
for the purpose of codifying rules with a view to the pacific settle-
ment of international disputes by arbitration; of introducing into
war on land and on sea somewhat greater moderation and human-
ity; of proclaiming the principles of right and justice in certain
matters of general interest; and of reducing as much as possible the
excessive expenditures for armaments.
The states there assembled, which were signatories of the Final
Act, were only 27 in number. It cannot be said, to be sure, that
the conventions they concluded fulfilled the great hopes to which
the convocation of the Conference had given rise. It even ap-
peared as if that attempt was somewhat derisive, since it was fol-
lowed within a short time by the Boer war (October 10, 1899) and
by the China war (1900).
The program, however, remained as it had been announced,
that of attempting to codify the rules designated to assure tbe
peace of mankind. This program was adopted by all the peace
societies, which deplored the pre-eminence of force in the inter-
national society, and especially by the Interparliamentary Union,
which has labored and will continue to labor for the cause of hu-
manity and civilization. Meeting at St. Louis on the occasion of
the Universal Exposition, that Union stimulated anew the move-
ment for the program which had brought about the First Hague
Conference and expressed to the President of the United States
the wish to bring about the meeting of a second Conference for
developing and completing the work of the first. This wish, com-
municated to President Roosevelt on September 24, 1904, resulted
in the circular of the Department of State of Washington of the
21st of October of that year for the meeting of a new Conference.
The proposal was accepted in principle as a consequence of ne-
gotiations between the states signatory of the general act of 1899,
and the Second Hague Conference assembled on June 15, 1907.
Public opinion, as a result of the disappointment of the first Con-
728
INTERNATIONAL LAW CODIFIED
ference, was very skeptical of the work of the second. This
conference, however, was convened and the number of states
which took part in it increased materially, reaching a total of 44.
Those who have a one-sided view of things insist in claiming
that the second Conference has likewise fallen short of its expecta-
tions; that the conventions concluded have merely resulted in
regulating war rather than in strengthening peace; that naval
and military expenditures, instead of decreasing, are everywhere
increasing; that the Russo-Japanese war and the danger of a war
more terrible, averted by the Algeciras Conference, constitute
the most convincing proof that the efforts of the Peace Conference
have been of no avail. As for us, leaving aside all subtle consider-
ation of the question, but viewing it on its merits, we find that the
result of the Conference corroborates the opinion we had expressed
in the month of October, 1898, on the occasion of the note of the
Czar of August 12/24 of that year, that the meeting of the Hague
Conference is the greatest event of our time and that the results
arrived at, while incomplete, cannot be considered as negligible
or as falling short of expectations, since the program, which re-
mains the same, has as its object the codification, by common
agreement, of conventional rules for assuring the legal organiza-
tion of international society.
Prior to these two Conferences, states had adopted universal
rules of conventional law for the organization of certain services
of an industrial or economic character, such as the postal, tele-
graph, and international railroad services. They had likewise
concluded certain treaties of a political character to regulate their
reciprocal interests, or to provide for a new order of things resulting
from war, or to settle certain differences of interests so as to pre-
vent hostilities. Nevertheless, these treaties are but empirical com-
pacts based upon reciprocal convenience, and have been concluded
only between states which desired to protect their present interests.
But the world has seen a congress of 44 states assembled to lay
down in common agreement universal rules of conventional law
of a political character governing their reciprocal obligations and
rights and to establish, in accord, judicial means designed to insure
respect for and compliance with the said rules.
1 See Opinion de M. Pasquale Fiore: La question de désarmement et la note
du Tsar Nicolas II, in Revue générale de droit international public, v. 5, 1898,-
P. 732.
CONCLUSION
729
Matters must not be viewed with distrust, nor must one con-
sider whether the results are entirely complete, or entirely satis-
factory. It is the constitution of the Hague assembly, its char-
acteristic aspect and its mission which, in our opinion, constitute
the most important, striking, and significant event. If its results
are at present incomplete, they will, nevertheless, by reason of the
progress of civilization and under the influence of public opinion,
which will always induce governments to modify the direction of
politics to conform with the joint interests of nations, become in a
more or less remote future complete and satisfactory. A fact which
cannot be denied is that the assembly of The Hague represents
the natural legal organ of the international society for proclaiming
the law of the Magna civitas as a binding legal force for all the states
represented therein, with the obvious character of equality and
mutuality, by placing the rules codified in common accord under
the collective legal protection of the states thus associated. It
follows therefore clearly, that, its mission being better determined,
that assembly will succeed in a more or less proximate future, in
solving the problem of the legal organization of the international
society through the gradual codification of the rules designed to
govern that society, and the organization of authorities most
likely to guarantee the respect of these rules.
Is not the periodicity of the Peace Conferences, voted unani-
mously by the 44 states, a fact of a capital importance?
For the Conference of 1907 voted the meeting of a Third Peace
Conference within a period of time similar to that which elapsed
between the first and the second, and in addition the creation of a
committee to prepare in advance a program and determine further
matters susceptible of international regulation.
If we have not as yet attained a satisfactory result, we are, never-
theless, on the high road to it.
As for us, we declare that we never lost our faith in the triumph
of ideas. Ideas, not. facts, dominate the world. At present our
faith is strengthened by the fact that the ideas which had inspired
our doctrine are gradually being realized.
We beg leave to reproduce what we wrote in 1879:
“If the condition of the working class is not to grow worse, it is
necessary to moderate the increasing preponderance of militarism.
"Now, it is apparent to our mind that this will be arrived at only
730
INTERNATIONAL LAW CODIFIED
when the industrial and manufacturing bourgeoisie and the other
classes, which need peace to prosper, shall acquire a greater power
and influence in the government of public affairs.
“We have seen in our time the most obstinate sovereigns, who
styled themselves kings by divine right, yielding before the ir-
resistible power of ideas and accepting the crown from the hands
of the people, and so will follow obstinate diplomacy." 1
In 1887, speaking of the difficulties of solving the problem of the
legal organization of the Magna civitas, we wrote:"As to the prac-
tical solution of the problem, our faith in the future increases all
the more as we see the excess of militarism growing and the social
question becoming more acute. Both that question and those
excesses, while having distinct objects, will bring about the same
result: that of hastening the solution of the international prob-
lem.” 2
To conclude, we witness the triumph of progressive codification.
Diplomacy has recognized the necessity of bringing the question
upon the tapis. One thing leads to another: we have made a good
beginning and we are fairly convinced that step by step the inter-
national society will be given its legal organization and a structure
adapted to the needs of civilization.
THE PRIMITIVE JURIDICAL SOCIETY WAS THE FAMILY; THE FINAL
SOCIETY WILL BE THE JURIDICAL UNION OF CIVILIZED PEOPLES.
1 Fiore, Trattato di diritto internazionale pubblico., 2d ed., 1879 (Turin,
Unione Tipografico-Editrice), § 133, p. 108.
Id., idem, 3d ed. (Turin, id., 1887), § 133, p. 93. See also: Fiore, Un appel
à la presse et à la diplomatie. L'empereur d'Allemagne. La question européenne.
Une solution. Paris, Chevalier-Maresca, 1890.
2
INDEX
(References are to pages}
A
427
429
18
1
0
0
Accession (as method of acquiring territory)..
Acquisitive prescription...
Alabama Claims Arbitration.
Aliens:
Admission...
Civil rights.
Freedom of expatriation.
Rights of property..
American Institute of International Law.
Purposes...
Opinions concerning.
Amnesty
Annexation..
Effects..
Arbitration.
Action in claim of annulment.
Administration of arbitral justice...
Awards, execution of .
Compulsory
“Compromis"
Constitution of tribunal.
Efficacy....
Grounds of nullity of award.
Obligatory character.
Permanent court.
Rules .
.
42
43
43
42
69
69
70
719
134, 422
139
18, 61
517
499
.63, 515
62
500
501
494
516
495
502
512
518
+
.
Suspension of execution of award.
Armaments, limitation of ...,
Armistice.
Asylum.
Autonomy.
Executive..
Judicial...
Legislative..
Limitations.
Relations with foreigners.
Rights as to...
20
639
213
.42, 152
164
157
153
166
155
42
2
731
732
INDEX
(References are to pages
B
34, 45
.
Barbarous tribes...
Belligerents:
Contributions of war..
Exercise of right of war.
Hospital ships according to Hague Convention of 1907.
In naval war..
Merchant ships converted into war vessels.
Passengers and crews of enemy merchant vessels..
Privateers..
Requisitions...
Rights over enemy property.
Rights over property of state and private persons.
Rights as against neutrals.
Rights with respect to enemy persons.
Those having no right to be called belligerents.
War booty..
Who is a belligerent in civil war.
Blockade:
Application of rules to enemy merchant vessels.
Capture of ships for violation of...
Commercial..
Diplomatic notification.
Duties and rights of neutrals. .
Penalties ..
Places subjected thereto.
Special notification..
Temporary suspension of the investment.
When legally established..
Bombardment:
In maritime war.
In war on land...
Boundary lines..
Brussels Convention of 1874.
592
548
615
594
595
613
597
591
590
590
643
613
552
593
550
0
672
701
526
669
671
672
667
670
669
668
4
604
566
418
82
с
401
.
Canals, Freedom of navigation.
Capitulations:
Belligerent.
With regard to exterritoriality.
Capture, in naval war:
Captured ship taken into port of belligerent captor...
Competence of international court......
Competent tribunal in case of capture and prize.
634
.209, 362
692
697
695
INDEX
733
1
.
.
1
.
0
1
.
References are to pages ]
Captured, in naval war-Continued.
Constitution of prize court.
695
For violation of blockade.
701
Formalities of capture.
690
Functions of the judicial authorities.
693
Judgment as to capture...
.701, 706
Judgment in case of destruction of captured ships.
703
National ships retaken..
705
Of ship and cargo.
689
On account of contraband.
700
Persons on board.
692
Preservation of things captured.
691
Prize taken to a neutral port...
694
Proceedings concerning rightfulness of prize..
703
Proceedings relative to lawfulness and regularity of capture.
698
Special prize court constituted by belligerent...
696
When and by whom made...
689
When can cargo be confiscated.
704
When can ship be confiscated..
704
When legitimate...
699
When may captured ship be destroyed
691
When must right of prize be denied.
705
When unlawful..
699
Catholic Church: See Church.
Cession of territory..
...137, 422
Administration of justice..
143
Effects..
139
Church...
33, 313
As a person of international law.
..36, 110
Diplomatic relations..
48, 316
International rights of .
* 46, 113, 312
Protection of rights..
320
Relations with state.
46, 319
Right of representation.
316
Church and state...
46, 319
Citizens:
Consular protection of.
253
Diplomatic protection abroad.
259
Citizenship:
Change of....
299
Duties of a citizen...
309
Necessity for "common” law.
301
Proof of ....
307
Protection of citizens abroad.
259
Rational rules on attributes of...
302
Relation to domicil.
306
.
.
.
.
0
.
0
.
1
734
INDEX
298
308
300
158
533
519
526
525
520
522
520
519
41, 44
| References are to pages )
Citizenship--Continued.
Right of...
Rights of a citizen.
Unlawful change of...
Civil judgment:
Extraterritorial effect..,
Civil war...
Coercive measures in time of peace.
Commercial blockade..
Intervention in case of legitimate interference.
Lawful coercive means.
Reprisals..
Retorsion.
When recourse to, is justifiable.
Collectivities, rights of .
Collisions:
Distribution of damages.
Responsibility for.
Rules concerning the competent court.
Colonies, status. .
Colonization...
“Comilas gentium"
Commercial blockade.
Commissions rogatory.
Execution.
“Compromis”
Concordat...
Conference, The:
Constitution...
Definition.
Duties.
Procedure.
Sanction of its decisions.
Conflict of laws.
Congress, The:
412
412
413
125, 417
46
93
526
277
278
500
52, 379
.
...60, 479
478
62, 480
481
483
43
...54, 467
55, 470
As principal organ of international society.
Constitution..
Convocation and duration..
Functions.
Procedure.
Sanction of its resolutions.
Conquest of territory..
Constitutional changes:
Recognition.
Consular agents..
Consular conventions.
473
58, 468
474
475
430
148
258
361
INDEX
735
References are to pages ]
250
217
258
249
205
251
256
253
0
0
252
.
Consulates:
Establishment of ......
Exterritoriality...
Consuls:
Consular agents. .
Duties in uncivilized countries.
Duties with regard to merchant marine.
Establishment of consulates.
General characteristics.
Jurisdiction...
Powers and duties.
Prerogatives under "common” law.
Protection of citizens..
When is character established.
Contraband of war:
Articles considered contraband..
Carriage of diplomatic agents..
Capture of ships on account of carriage of..
Conventional ..
Destination of goods and of ship.
Right of belligerent to prohibit commerce in certain objects.
Foreign trade assimilated to...
Penalties according to international law
Penalties applicable to transport. . .
Right of belligerent to extend conception.
Transport of coal...
Transport of dispatches.
Transport of soldiers and officers
Conventions: See Treaties.
Conventions governing war:
Armistice.
Capitulation..
Preliminaries of peace.
Safe-conduct licenses.
Safeguard...
Suspension of arms.
Truce.
Who may conclude.
Copyright...
Court of arbitration..
Organization.
Courts, Jurisdiction in criminal matters.
Criminal law:
Extraterritorial authority...
Criminal procedure and jurisdiction:
Exterritoriality
673
679
700
675
677
676
678
681
680
674
679
678
678
0
.
Į
639
634
642
637
638
633
642
632
454
60
61
188
0
0
189
214
.
736
INDEX
(References are to pages )
Custom...
Customs (revenue).
85
439
D
.
Diplomatic agents:
Acceptance of those appointed
As representatives of states...
Cessation of dpilomatic mission.
Duties..
Exterritoriality
Immunities. ..
Observance of ceremonial.
Persons attached to legation.
Powers..
Prerogatives.
Responsibility
Rights and privileges.
Rights with respect to third powers.
Suspension of powers. .
Usurpation of diplomatic functions.
Who possesses right to send...
Diplomatic measures to avoid hostilities.
Diplomatic relations in time of war..
Diplomatic usage:
Rules ...
Domicil...
Dominium:
Limitations ...
.. 235
233
247
244
209
240
246
242
236
239
237
237
243
247
248
234
64
537
225
306
183
E
.
Economists.....
European concert.
Exterritoriality.
Criminal procedure and jurisdiction.
How privilcge is lost...
Persons enjoying privilege of.
Diplomatic representatives.
Persons subject to system of capitulations
Pope...
Sovereigns.
Places enjoying privilege of...
Consulates..
Holy See..
11
44
208
214
216
208
209
209
209
209
211
217
218
.
1
INDEX
737
[ References are to pages ]
Exterritoriality-Continued.
Legations...
Quarters of foreign army.
Extradition (treaties).
212
220
375
F
vi
xi
/
.
78
81
404
Fiore, Biography.
Bibliography..
Fiore's International Law Codified:
Purposes..
Sources of legal rules.
Fishing on high seas and in non-territorial waters.
Foreign army:
Exterritoriality.
Foreign judgment...
Foreign penal judgment..
Foreign sovereigns, Jurisdiction over.
Foreign states, Jurisdiction over..
French Revolution..
220
160
163
G
Geneva Convention of 1864.
Geneva Tribunal of Arbitration.
Gentilis, Albericus.
Good offices as means of settling international disputes.
Grotius..
23
18
10
485
10
H
Hague Conference of 1899.
Hague Conference of 1907.
Hague Conventions..
Hague Convention V, 1907, war on land...
Convention XIII, naval warfare..
Hague Convention XII, 1907–International Prize Court.
Holy See, Exterritoriality.
See also Church.
Hospital ships and Hague Convention of 1907...
Humanity, duties of...
21
24
24
658
662
707
218
615
289
I
Imperium...
Limitation
174
176
738
INDEX
174
176
174
170
71
488
65
64
.
(References are to pages ]
Imperium-Continued.
Regarding citizens..
Regarding foreigners
Rules ..
Independence.
Institute of International Law...
International Commission of Inquiry.
International disputes:
Pacific settlement of.
Preventive measures.
International Law:
As codified by Fiore...
As distinguished from interstate law.
Codification.
Definition.
Enforcement.
Formulation.
Fundamental principles.
History
Object.
Sanction.
Science of..
Sources of Fiore's rules.
International organization of States:
History
Internoscia's Code of International Law.
Interpretation..
Interstate law..
Intervention:
In favor of Pope...
Not justified by treaty.
Unlawfulness..
Intervention, collective..
Between church and state.
General principle...
When justified..
When required.
When unjustifiable.
Islands:
Jurisdiction...
80
73
58
35
...60, 101, 463
.53, 463
90, 464
1
35
14
29, 90, 103
81
2
74
99
73
267
266
265
44, 66
272
272
270
268
271
196
J
Jurisdiction...
As right of sovereign.
188
188
.
INDEX
739
{References are to pages)
Jurisdiction-Continued.
Criminal:
Over merchant vessels.
Over territorial waters.
Over war vessels...
Relations to piracy.
Of courts...
Over foreign consuls.
Over foreign sovereigns..
Over foreign states..
Over islands.
Over mail steamers.
Over merchant vessels.
192
191
194
190
188
205
199
201
196
198
196
L
+
405
1
116
Lakes:
Freedom of navigation..
Law, community of, among nations.
Legal entities.
Legations:
Exterritoriality.
Performance of civil acts.
Persons attached to..
Liberty.
Locke..
212
215
242
152
11
M
10
198
Machiavelli...
Mail steamers:
Jurisdiction over.
Man:
0
As a person of international law..
Declaration of rights of..
International rights of..
Man: International rights and duties.
Citizenship...
Domicil in relation to citizenship.
Duties of man as a citizen......
Freedom of navigation and commerce.
International duties..
Inviolability of person..
Legal sanctions of international rights.
Naturalization.
Negroes.
Property
.
.36, 108
30
.32, 40
291
298–302, 306, 307
306
309
297
310
291
311
305
291
293
1
740
INDEX
(References are to pages)
600
Man-Continued.
Right of free migration...
295
Rights of man as a citizen...
308
Maritime ceremonial. .
226
Maritime war:
Care of shipwrecked and wounded.
615
Means of settling differences between states and of preventing litigation.. 484
Good offices ..
485
International commission of inquiry..
488
Mediation...
487
Mediation as means of settling differences between states...
487
Merchant marine:
Consular protection of.
254
Merchant ships:
As private property.
458
Converted into war vessels.
595
Criminal jurisdiction.
192
Engaged in warfare.
Mortgages and real rights.
460
Proof of nationality.
459
Rights....
460
Rights of belligerents over enemy merchant passengers and crews.. 613
Seizure in time of peace.
525
Merchant ships and cargo, Enemy.
621
Capture according to present customs.
622
Capture in relation to right of prize..
630
Characteristics of right of capture.
622
Inviolability of personal property.
621
Mail steamers and correspondence.
630
National ships captured by enemy and retaken..
625
Object of capture..
624
Occupation of maritime territory and its effects.
631
Restrictions upon right of capture..
628
Ships and property exempt from capture.
627
When a merchant vessel may be regarded as enemy.
624
Who may exercise right of capture and where.
623
Migration, free.
295
Military occupation in time of war.
569
Minister of foreign affairs:
As legal representative of state..
232
Montesquieu..
13
Moral precepts, rules based on.
94
Most favored nation clause.
359
Mutual assistance of states:
General principles.
273
In administration of criminal justice.
278
INDEX
741
+
.
(References are to pages)
Mutual assistance of states-Continued.
In case of maritime disaster or shipwreck.
Judicial assistance to individuals.
Rules relating to salvage....
To facilitate administration of justice.
To foreign ships..
To shipwrecked sailors.!
274
281
275
277
273
276
N
117
119
117
33, 41, 45
305
0
Nation, The:
Definition..
International rights.
International status.
Nationality.
Naturalization.
Naturalized persons:
Right of protection..
Naval war (Convention XIII) Hague Convention, 1907.
Navigable rivers..
Compulsory pilotage..
Legal enforcement of regulations.
Navigation taxes and dues...
Positive law relating to river navigation.
Principles concerning regulation of river navigation
Rivers flowing through territory of single state.
Rules for navigation of international rivers.
Navigation and commerce, freedom of...
Navigation:
Collisions...
International rules of ..
In territorial waters.
Revision of regulations..
Rules for direction and management of the ship..
Rules of maritime courses.
Negroes, personal rights..
Neutrality: rights and duties of..
Acts consistent with neutrality.
Acts of hostility..
Belligerents taking refuge in neutral ports or territory..
Concept and nature of.....
Duties of belligerents toward neutrals.
Duties of neutral states....
Freedom of peaceful commerce.
Independence in exercise of rights of sovereignty.
262
662
394
397
398
396
400
396
399
395
297
•
412
408
411
409
411
410
291
645
651
651
652
645
655
650
649
648
742
INDEX
(References are to pages)
Neutrality: rights and duties of Continued.
Inviolability of neutral territory.
Prisoners landed and prize abandoned in neutral ports..
Rights and duties according to Hague Convention of 1907...
Rights of neutral states. ...
States entitled to be considered neutral.
New states:
Relations with other states....
648
654
657
647
646
132
O
0
Obligations, international.
Different forms..
General and fundamental rules.
Occupation of territory..
Organization of society of states. .
Contribution of international law.
History of projects for.
Jurists, economists and philosophers.
Need of more rational form...
Present condition..
325
327
325
423
1
29
.2, 17
10, 11
14
9
P
39
49
457
715
.377, 716
•
Papacy: :
As an international person.
Rights of the..
Patents for inventions.
Peace:.
Treaty.
People:
Definition..
International rights.
International status.
Permanent court of arbitration.
Personal union.
Persons, juristic
Persons: international rights..
Rights under authority of international law.
Philosophers.
Piracy:
Powers of vessels with respect to pirate ships.
Relation to criminal jurisdiction.
Political equilibrium of states...
Pope, The:
Exterritoriality.
117
118
117
502
124
120
105
117
11
.
388
190
288
209
INDEX
743
.
313
316
314
313
.91
96
92
93
582
579
585
719
582
581
.587, 615
597
[References are to pages)
Pope, The Continued.
Freedom of government.
Inviolability..
Limitation of rights.
Right of autonomy and independence
Positive law.
Binding force of..
Common.
Particular.
Prisoners of war:
Conventions respecting their exchange and release.
Duties of belligerents toward. ...
Hostages..
On conclusion of peace.
Parole.
Rights respecting.
Wounded and sick.
Privateers.
Prize courts:
Competent tribunal.
Constitution of...
Decisions and executory force.
Hague Convention of 1907.
Procedure..
Special-constituted by belligerent.
Prizes:
Proceedings concerning rightfulness of
Taken to neutral port..
Property:
Inviolability
Property, private....
Commercial and trade names.
General principles.
Inviolability...
Literary, copyright.
Merchant ship.
Patents for inventions ...
Rules concerning legislative jurisdiction of states.
Trade-marks...
Property, public..
Boundary lines.
Colonial possessions.
Common property.
Canals...
Control on high seas during voyage.
Fishing on high seas and in non-territorial waters,
695
695
706
707
697
696
703
694
293
448
455
448
452
454
459
457
450
456
415
418
417
385
401
406
404
0
.
.
744
INDEX
1
405
405
385
407
394
407
402
385
384, 415
418
416
416
416
436
437
439
436
446
439
443
447
447
445
437
446
0
(References are to pages ]
Property, public-Continued.
Freedom of navigation.
Lakes...
Liberty of high seas.
Nationality of ships.
Navigable rivers.
Ship's papers.
Straits..
Things deemed common.
General principles
Islands ..
Legal possessions of every state..
Territorial waters.
Territory.
Property of State and taxation.
Customs system...
Imposed upon a state.
General principles.
International postal service..
International railroads.
International telegraph lines...
Peaceful use of isthmuses.
Roads and highways of communication.
Submarine cables.
Taxation.
Telephones
Protection of citizens abroad:
As right of citizen.
As right of sovereignty
Naturalized persons.
Rational limit.
When legitimate.
Protectorate.
Protectorate, Colonial.
Publir opinion..
0
0
.
259
259
262
261
260
127
431
.59, 65, 86
R
Ratification...
Rational law..
Binding force of...
Recognition of the state.
Exercise of rights by unrecognized state.
Form..
General rules.
Nature.
95
90
94
145, 150
149
149
145
146
1
INDEX
745
0
(References are to pagos )
Recognition of the state-Continued.
Value....
When necessary
Reprisals..
Requisitions.
Responsibility of state, international
Arising from acts of private persons.
Direct....
For acts of officers.
Fundamental principles.
Indirect...
Restoration.
Retorsion..
Revolution, right of..
Rivers, navigable:
See Navigable rivers:
Rousseau:
Project of perpetual peace.
147
145
522
591
282
287
283
285
282
284
133
520
45
0
.
56
S
275
132
131
434
276
Salvage..
Search: See visit and search.
Secession:
As effecting change in personality of state.
Seizure of ships: See Capture.
Separation (from constituted state)...
See also Secession:
Servitudes.
Ship, The:
See Merchant ships:
Shipwrecked sailors...
Sick and wounded: See prisoners of war.
Siege.
Signals:
Fog signals...
Of ships..
Signal lights.
Slave trade:
Principles for suppression.
Sovereign:
Exterritoriality..
564
410
409
410
0
389
Right of representation.
Sovereignty:
Over gulfs and lakes...
Over movables,
209
231
184
187
746
INDEX
0
.
.
.
(References are to pages ]
Sovereignty-Continued.
Over ports and roadsteads.
183
Over rivers..
186
Over straits.
185
Over territorial waters.
178
Re-establishment of rights at end of war.
720
Spheres of influence (hinterland).
432
Spies.
557
State, The:.
As a person of international law.
36
Autonomy.
42
Compound......
122
Identity.
151
In relation to church.
46
International rights.
.29, 40, 48
Loss of personality
151
Simple....
122
Transformations of personality
130
Treaty power.
51
Tributary.
126
Protectorate.
127
Vassal...
125
States, as persons.
106
International duties.
264
International rights.
106
Confederation of.
56
Legal equality. .
222
Maritime ceremony
226
Political equilibrium.
228
Precedence in rank.
225
Representation of
231
Diplomatic agents.
233, 248
How established.
234
Minister of foreign affairs..
232
Sovereign and family.
231
To whom assigned. .
Respect of moral personality and honor.
224
Rules of diplomatic usage..
225
Submarine cables:
In maritime war.
609
Taxation, of property of state: See property of state and taxation.
0
231
T
Territory:
As possession of state..
Methods of acquisition.
415
+422
INDEX
747
...
.
1
C
+
.
0
0
.
.
[References are to pages)
Territory-Continued.
Annexation..
By accession..
By acquisitive prescription.
By conquest..
By occupation.
By usucaption.
Cession.
Colonial protectorate.
Community of indivisible territory
International servitudes..
Spheres of influence (hinterland).
Territorial waters..
As possession of state.
Criminal jurisdiction.
Trade-marks.
Treaties...
In time of. war.
Suspended during war.
Treaties, abrogation and annulment.
Expiration..
General principles....
Judicial proceedings for abrogation..
Termination and renewal.
Treaties, conditions for validity.
Capacity to conclude a treaty.
Consent required for validity.
Extrinsic requirements including form.
Lawful subject-matter.
Notifications...
Persons competent to conclude
Requirements for validity.
Treaties in general...
Treaties, legal form and execution.
Broad or restrictive interpretation.
Disputes over execution of...
Effects....
Effects with regard to third parties.
Execution...
Guaranty of a third power.
Interpretation.
Inviolability
Lawful means of assuring execution.
Obligations arising from a guaranty.
Rules of grammatical interpretation.
Rules of logical interpretation..
422
427
428
430
423
428
422
431
434
434
432
181
416
191
456
51
538
719
348
353
348
349
352
328
329
332
335
333
331
330
329
328
336
345
346
336
338
339
340
341
336
340
341
342
343
0
.
.
.
.
0
.
+
.
748
INDEX
+
•
►
| References are to pages ]
Treaties, Special...
Capitulation.
Concerning spheres of influence.
Consular conventions.
Conventions between heads of church and state-concordats.
Conventions of war and treaties of peace.
Most favored nation clause...
Of cession.
Of commerce.
Interpretation
Of common interest.
Of confederation.
Of customs union.
Of extradition.
Of pacific alliance.
Of political alliance.
Of protectorate.
Of suzerainty and vassalage.
Tribes, independent.
International rights.
Tribes, uncivilized...
International rights..
International status.
355
362
366
361
379
377
359
355
356, 360
358
373
369
361
375
372
370
364
367
.34, 45
115
117
120
119
+
U
Union of several states.
Usucaption...
133
428
V
390, 686
387
392
Vessels:
See Merchant ships.
Visit and search:
Method of procedure.
On the high seas....
Within territorial waters.
Visit and search, right of:
Concept and nature..
Convoyed ships.
Search and examination.
Seizure of visited ship.
Ships exempt from...
When it may be exercised.
.. 684
685
687
687
685
684
.
INDEX
749
[ References are to pages ]
532
533
534
537
540
537
543
533
.
0
.
.
War, as last recourse for individual protection.
Civil...
Declaration of
Diplomatic relations.
Effects on persons and their property..
General effects....
General rules concerning exercise of rights of war.
International
Laws ofm-Sanction
Military powers--martial law.
Municipal legislation in war time.
Treaties..
When does it exist in fact
When justifiable.
War, civil..
War damages.
War, end of...
Amnesty
Cessation of hostilities. .
Peace preliminaries.
Prisoners of war.
Re-establishment of rights of sovereignty.
Rules respecting present state of possession.
Treaties suspended during war...
Treaty of peace.
War damages.
War, exercise of rights of:
Belligerents..
Persons attached to service of army.
Regular militia..
Volunteers.
War, on land:
Bombardment.
Deserters..
Flags of truce.
Guides.
Hague Convention of 1907..
Journalists and correspondents.
Lawful and unlawful means of attack and defense.
Military occupation..
Rights of belligerents against persons not of the army.
Rights of prisoners of war.
Sacking or pillage.
Siege..
539
540
538
536
532
130
722
715
719
718
715
719
720
721
719
716
724
.
548
553
549
551
.
+
566
563
559
559
658
561
554, 564
569
561
557
568
564
750
INDEX
557
568
602
1
604
[References are to pages ]
War, on land-Continued.
Spies..
Stratagems and tricks..
War, maritime-acts of hostility..
Bombardment...
Hague Convention of 1907.
Limitations upon right of attack.
Present lawful means of attack.
Submarine cables...
Unlawful means of attack.
Unlawful stratagems.
War of secession .
War vessels:
Criminal jurisdiction...
Wounded and sick: see Prisoners of War.
Writers, opinions of...
662
611
603
609
608
611
132
194
87
MAY 1 n 1918
UNIVERSITY OF MICHIGAN
animal saam in
I
3 9015 06861 4703
名
​