The International Law Standard in Treaties of the United States

The International Law Standard

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The International Law Standard in Treaties of the United States By Robert Renbert Wilson H A R V A R D U N I V E R S I T Y P R E S S Cambridge, Massachusetts 1 9 5 3

Copyright 1953

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Copyright 1953 By the President and Fellows of Harvard College Distributed in Great Britain by Geoffrey Cumberlege Oxford University Press London Library of Congress Catalog Card Number 53-5063 Printed in the United States of America

Begun as a very restricted inquiry into the use of the term

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PREFACE Begun as a very restricted inquiry into the use of the term "international law" or 'law of nations" in treaties of the United States, this study became somewhat broader as it developed. Con- siderations which figured in this broadening were especially (1) the realization that the standard might be implied in treaty provisions in which the term "international law" itself did not ap- pear, and (2) the realization that a state's position with respect to the standard might appear from what it advocated (perhaps as a statement of existing law, as well as law for the future), even if it were unsuccessful in such advocacy. As a matter of organiza- tion, however, it seemed useful to look primarily at provisions making specific mention of the standard, while not leaving out of account some developments (involving other perfected treaties) in which the standard was a significant factor in diplomacy or in judicial interpretation. This book does not purport to be in any sense a study of all the international law which treaties of the United States express. To try to summarize all of that law in a single volume would doubtless be impracticable. Nor does the plan include a detailed statement, in connection with every treaty in which the term "international law" appears, of what the substantive content of the law was on particular points at the time—the complete law, for example, on such a broad subject as neutral rights and duties.

viii PREFACE

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viii PREFACE opments relating to such recently or currently important topics as human rights or the international control of atomic energy. In the carrying out of the plan of the study, more than a textual commentary frequently became necessary, since even familiar 1 expressions in treaties are not self-defining. Determination of the significance of the use of even such a term as "the law of nations" may, in particular situations, necessitate consultation of the records of negotiations, hearings, legislative discussions, and often examination of tribunals' decisions. Most of the evidence consulted in the investigation was in printed form, although in some instances I have depended upon unpublished diplomatic correspondence and other manuscript records. For the period through 1863 the monumental volumes on United States treaties edited by David Hunter Miller have furnished much valuable information. With the idea of bringing the investigation as nearly up to date as was practicable, I have tried to deal with relevant treaty developments up to about the middle of 1951.

PREFACE ix

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PREFACE ix Chapter I presents a general statement and a classification. Chapters II through V deal principally with illustrative instances of effort for, and actual inclusion of, provisions concerning the standard as they came to appear in perfected international agree- ments, and also, in many cases, with the interpretation and ap- plication of the provisions. The history of the Kellogg-Briand Pact, in which a specific mention of the standard does not appear, but the bearing of which upon whatever is done about the stand- ard in the field of pacific settlement has, since the Nuremberg trials, become rather evident, illustrates that both diplomatic and judicial pronouncements may assume practical importance. The table of United States treaties in Appendix I does not in- clude all treaties that would fall within the classification of Chap- ter I, section 4, but only international agreements that are specifically referred to or cited in the present study. Where a provision concerning the law appears in each of a number of treaties in identical form (as, for example, in the bilateral arbitra- tion treaties of the pattern which the United States began to use in 1928 in its relations with European and Asiatic states), partic- ular treaties in the group are subjects of discussion only where the record of negotiation or application throws some light upon attitude, purpose, or legal effect. In Appendix II there is material drawn from the treaty practice of six states other than the United States.

χ PREFACE

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χ PREFACE work involving specialization on a particular type of treaty have impressed upon me the possible usefulness of an attempt to clarify the manner in which the standard has been used. In this connection I have had the privilege of discussion with many per- sons whose interest in treaties is more than a mere academic one. Opinions and conclusions which I have expressed are, how- ever, my own, and in no sense official. I am indebted to the Research Council of Duke University for funds used for research assistance and in the preparation and publication of the manuscript. Officers of the Duke University Library, of the Library of Congress, of the Division of Historical Policy Research of the Department of State, of the National Archives of the United States, and of the Pan American Union have through their courtesy facilitated the research. The editor- in-chief of the American Journal of International Law has kindly permitted the reproduction in this book of certain materials the substance of which originally appeared in articles in that journal.

CONTENTS

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Extralegal Factors Affecting Treaties 2. Nature and Form of References to the Law 4. Classification of Treaty References by Subject Matter 5. Special Aspects of United States Practice II. General Commitments to Use Legal Means 2. Criteria for Distinguishing Juridical Questions 3.

xii CONTENTS

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PRACTICE OF OTHER SELECTED STATES 263 1.

INTRODUCTION

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C h a p t e r I INTRODUCTION "International law is the standard of conduct of States in their reciprocal relations." Reaffirmed as a principle in the Bogota Charter of the Organization of American States, this proposition invites analysis from the point of view of the treaty relations, as well as other relations, of states. If they have any legal quality, treaties are not made in a vacuum. Viewed as a background against which all international agreements are made, international law becomes something more than a set of under- standings "to which all nations subscribe, but to which only a 1 few adhere." Seen from the point of view of preöxisting rules, treaties afford means of affirming these rules, or of adapting, varying, suspending, or supplementing them in the relations of the parties inter se. The manner in which they have done so will appear from the treaty practice of a particular state, such as the United States. There have been various attempts to discern "principles" of American diplomacy in terms of broad policies which the coun- try has followed and reflected in its treaties. Overstatement of the part which the United States has had in the development of an international legal system based on these principles is not, however, conducive to understanding.

2 THE INTERNATIONAL LAW STANDARD

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2 THE INTERNATIONAL LAW STANDARD 3 siderations," they have proved to have a high international value. Nonetheless, when the latter refer, explicitly or implicitly, to the body of legal rules comprising international law, the precise purpose and effect of such references becomes a proper subject of legal inquiry. It has often been pointed out that, in one sense, any binding agreement, even a bilateral one, "makes" law (the so-called "particular international law") for the subjects to it—in accord- ance with the theory of the autonomy of the subjects' will in rela- 4 tion to contracts —aside from the preöxisting law against the background of which the treaty is made. In general, the present inquiry will, however, be restricted to treaties which make reference to the law in more direct, specific terms. "International law" then becomes, itself, a term in treaties. Potter, Doctrines americaines de droit international (1937), p. On the view that it is now futile to try to construct international law on individual state interests, see Gerhart Niemeyer, Law without Force (1941), passim.

INTRODUCTION 3

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INTRODUCTION 3 not merely from jurists but from observers of social processes generally.5 Obviously, matters of great international importance are likely to present questions other than those of law. Particu- larly when there is a large measure of popular control over and influence upon foreign policy, decisions recorded in treaties may frequently be compromises, even on such a point as that of ad- herence to preöstablished rules of law. Changing power relation- ships, economic factors, and new conceptions of what the na- tional interest requires, naturally enter in.® Whether the occasion for treaties is to promote freedom of commercial intercourse, or to establish respect for individual human rights, or to secure a greater use of pacific methods of settling international disputes, or to develop in a particular hemisphere a system of neighborliness consistent with a universal legalism,7 much besides the legal considerations may demand 5 See, for example, P. Bridgman, The Intelligent Individual and Society (1938), p. John Donaldson, "Fundamentals of the Foreign Economic Processes and Policies of the United States," Weltwirtschaftliches Archiv, XXX (1929), 49-77; Jesse S. Reeves, "The Interrelation of the Domestic and Foreign Poli- cies of the Nation," Annals of the American Academy of Political and Social Science, vol.

4 THE INTERNATIONAL LAW STANDARD

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4 THE INTERNATIONAL LAW STANDARD primary attention. On the other hand, even such a policy as that expressed in the Monroe Doctrine is not unrelated to the law. For, while the Doctrine in its beginnings was more a matter of single state policy than international agreement, it rested, as Elihu Root once pointed out, upon the right of self-protection, 8 and that right is recognized by international law. The General Assembly of the United Nations in its ference, 1948; text in Report of the Delegation of the United States to the Ninth International Conference of American States (1948), Department of State publication 3263, p. 11 Percy Corbett, "Conflicting Theories of International Law," Proc. 13 Francis Wharton, A Digest of the International Law of the United States (1886), III, 288.

INTRODUCTION 5

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INTRODUCTION 5 actions looking to the progressive development as well as codifi- cation of international law, and the International Law Commis- sion itself, has proceeded upon the assumption that there can be improvement through conscious effort. Even aside from efforts for progressive development, however, there may be treaty uses of the general body of the law. The primary motivation for such uses may be political or economic considerations rather than any desire to extend the domain of law. CUSTOM AS AN ELEMENT The meaningfulness of treaty references to international law as a standard rests in large part upon the fact that customary 14 rules still comprise a very great part of the law. Among the chief questions that have been raised in this connection are those of how customary rules emerge, the method of their recognition, the advantages that have been claimed for them over written rules, and the way in which customary rules may be changed. It has been common to say that usage crystallizes into law through the conviction that conformity to the rule has become obligatory, the opinio juris sive necessitatis.

6 THE INTERNATIONAL LAW STANDARD

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6 THE INTERNATIONAL LAW STANDARD writer has put it, customs are manifestations of certain exigencies of communal life and from them have resulted the fundamental 15 principles of law. Without here attempting such a distinction as that between normative rules and constructive rules, or that be- tween norms for acting and norms of acting, it is possible to re- gard as binding those rules whose satisfactory and reasonable character has caused them to be regularly identified with inter- national duties, or to be "found" by tribunals. The function of the judge assumes great relative importance, and the weakness of a system of international law which has traditionally required no state to refer questions for interpretation to an out- side agency, without its consent in the particular case, becomes apparent. Distrust, and unwillingness to repose the necessary confidence in judges (who might seem to acquire the additional role of legislators), 1Б Dionisio Anzilotti, Cours de droit international (1929), I, 66 et seq. At the time of the United States Senate's action in 1946 on acceptance of the Optional Clause of the Statute of the International Court of Justice, the Senate rejected an amendment introduced by Senator E. Millikin which would have provided that adherence would "not apply to disputes where the law necessary for decision is not found in existing treaties and conven- tions to which the United States is a party and where there has not been prior agreement by the United States as to the applicable principles of international law."

INTRODUCTION 7

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INTRODUCTION 7 17 has impeded the movement. With recognition of the part which adjudication can play in the development, it has been said that so-called customary law is often not so much the product of state 18 practice as it is the product of tribunals. An advantage sometimes claimed for judge-declared law over written law is that of its greater malleability and adaptability to a changing milieu. A recent authoritative appraisal of the law in general has proceeded upon the assumption that while general principles are fairly well understood, the particular manner of 19 application is the subject of wide disagreement. This might be illustrated in the concept of denial of justice, questions relating 20 to which have arisen in widely differing forms. In the case of the laws of war, technological development may outdistance effort to provide law in conventional form, and if the latter is thought to be the only law that exists, much conduct may go unregulated.

8 THE INTERNATIONAL LAW STANDARD

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8 THE INTERNATIONAL LAW STANDARD 22 pean situations. Inter- national tribunals, as also national prize courts, have sometimes discovered international customary law from an examination of 23 the practice of substantially all the states. Regional arrange- 24 ments may develop that are consistent with international law, but the mere invocation of custom that is observed by only a few states, on a regional basis or otherwise, cannot supplant, except as between those states and perhaps within limitations, a rule recognized as binding by the greater part of the nations of the world. In the Lotus case, for example, the Permanent Court of International Justice found that no norm existed which could be successfully invoked by the complainant 25 state. Criticism of the decision has brought out that the Court inferred the existence of a rule of international law from the absence of protest against a general practice, and that it seemed to base an international custom upon the mere nonexistence of a 2 2 Through diplomatic effort, a practice long observed in a particular region may secure extraregional recognition, as was apparently the case with respect to the Latin American practice concerning asylum in embassies and legations, which was invoked as to persons in Spain during the civil strife in that country from 1936 to 1938 (N. Padelford, International Law and Diplomacy in the Spanish Civil Strife [1939], pp.

INTRODUCTION 9

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Neither analogies from private law nor broad authoriza- tions for courts to apply "general principles of law" have seemed to provide escape from a large measure of deference for a state which declines to be bound by a rule that cannot be shown to have been established by custom or convention. When law is so largely based in custom, the manner in which customary rules change becomes important. In theory, modifica- tion implies consent, or at least acquiescence, on the part of all parties to whom the law is applicable. In practice, tribunals ap- pear to employ common-sense methods of ascertaining whether there has been a variation in what custom has established. There is, naturally, room for jurists to disagree on the adequacy of evi- dence. The latter may show that a customary rule has been re- placed by a conventional one rather than by a new customary 27 rule.

10 THE INTERNATIONAL LAW STANDARD

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10 THE INTERNATIONAL LAW STANDARD 81 the navigation of the channel joining them ought also to be free. The United States submitted that what the Danes claimed by "immemorial prescription" and "immemorial usage" was inap- plicable to Americans, since the levies conflicted with "natural privileges and international law." Secretary William Learned Marcy declared, in an instruction of July 18, 1853, that "these ancient customs have in many instances been found to be in- consistent with rights now generally recognized in the more 32 liberal and reasonable practice of commercial nations." Presi- dent Pierce in his annual message of the following year ad- vanced the legal argument that Denmark's collection of the tolls was sanctioned, not by general principles of the law of nations, 33 but by special conventions. In the course of the negotiations Denmark sought to maintain its position by appeal to sovereignty, usage, prescription, the interest of other powers in preventing Denmark from assenting to the proposals of the United States, and "old" rights as against what was demanded on the basis of 34 new international law. NATURE AND FORM OF REFERENCES TO THE LAW From the foregoing section it will appear that the rules com- prehended in a treaty reference to "international law" or the "law of nations" may sometimes be difficult to discern. The United States officially expressed to the United Nations in 1946 its feel- ing that "international law is already sufficiently developed to 35 serve as a guide and basis in international relations." Agree- ments may specify the standard as that which is to be applied 3 1 D . Miller ( e d . ) , Treaties and Other International Acts of the United States of America, VII ( 1 9 4 2 ) , 530.

INTRODUCTION 1 1

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INTRODUCTION 1 1 in various situations. Alternatively, they may make mention of the standard in the course of registering assent to rules as parts of the law, or may implicitly subscribe to the standard when record- ing the assent of parties to a suspension of its operations in their relations inter se. Investigation reveals over two hundred references in terms to the "law of nations" or "international law" (or clear equiv- alents of these terms) in intergovernmental agreements to which 38 the United States has become a party. If to the number indi- cated there be added instruments in which there are indirect or implied references to the body of custom, usage, or precedent, the total would be even greater. Difficult to classify are some early treaty provisions which look to assurances of legal treat- ment of, for example, persons, goods, or vessels. When it is speci- fied that legal procedures shall be applied, the texts do not always indicate clearly whether the latter shall conform to na- tional law merely, or to international law, or to both.

12 THE INTERNATIONAL LAW STANDARD

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12 THE INTERNATIONAL LAW STANDARD strued to mean that law should be applied, in view of the fact that the functions of claims commissioners usually are essentially 40 judicial. Assurance that procedures should be essentially orderly rather than arbitrary was apparently the object of some early treaty clauses. Thus the earliest agreements with Prussia set forth that seizures, detentions, or arrests should be only by order or author- 41 ity of law. Undertakings with various American republics in the first half of the nineteenth century required that the trial 42 and judgment of vessels be according to law. Somewhat less clear is the reference, in the third of the separate articles sub- joined to the first treaty between the United States and Sweden, 43 to "illicit commerce contrary to the principles of neutrality," a wording which raises, among others, the much-discussed ques- tion of whether the carriage of contraband by neutral vessels has traditionally been forbidden by international law or simply made risky by that law. On the history of the convention, and especially the American attitude, see Keith Clark, International Communications (1931), ch.

INTRODUCTION 1 3

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INTRODUCTION 1 3 international law of the air."48 The "principles" of such agree- ments are commonly accompanied by, or by provisions for the making of, more detailed rules. Thus the multilateral agreement concerning safety of life at sea, signed May 31, 1929, referred in the preamble to" the establishment of uniform principles and rules, and there were specific provisions for the formulation, in concerted action, of regulations.47 An indirect reference to inter- national law is illustrated in the 1937 multilateral convention on Inter-American Radio Communication, which mentions the "sovereign right of all nations to the use of every radio broad- casting channel."48 National courts take cognizance of the evolu- tion of rules that may be applicable in litigation growing out of such incidents as collisions at sea,49 while pronouncements by international tribunals may, of course, furnish incentive and guidance for the projection of new international regulations.50 Finally, within the framework of the broad principles in a multi- lateral convention, there may be provisions looking to adapta- tions to the needs of particular regions or of particular groups.51 4 . CLASSIFICATION OF TREATY REFERENCES BY SUBJECT MATTER Grouped according to their substantive content, treaty provi- sions specifically mentioning the "law of nations" or "international law" (or seeming by clear implication to refer to this standard) 48 Proceedings of the International Civil Aviation Conference, Chicago, November 1—December 7, 1944, Department of State Publication 2820, I ( 1 9 4 8 ) , 3. 4 8 5 3 Stat. ( 3 ) 1593, 1596 (art. Reservation of rights under preexisting general law may, of course, be accomplished through reserva- tions. Cf. a provision in an agreement between the United States and Canada in 1939, whereby the "rights" enjoyed by the national defense services of either party state were not to be lessened ( 5 3 Stat. [3] 2 1 5 7 ) .

14 THE INTERNATIONAL LAW STANDARD

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14 THE INTERNATIONAL LAW STANDARD fall into eight categories. The first of these, which includes ap- proximately one third of the total, concerns the peaceful settle- ment of international disputes or the settlement of claims. The parties commonly make mention of the law as a standard for the guidance of tribunals, as the field of law in which arbitrators must be competent, or, more frequently, as that in accordance with which differences are to be settled. In some instances the law is not the only standard specified, and sometimes agreements record acceptance of a liability wider than that which interna- 62 tional law imposes. As is well known, the subject of piracy has received considerable atten- tion in the literature on public international law. Ziegler, The International Law of John Marshall (1939), ch.

INTRODUCTION 15

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INTRODUCTION 15 54 position in subsequent writing of jurists. However, differences of opinion about which law (national or international) makes piracy a crime has apparently not caused serious impediments to 65 the operation of extradition treaties. The United States has, on occasion, refused to accept a too-inclusive definition of the of- fense. It has, for example, withheld approval of the designation by other states of insurgent vessels as piratical, insisting, rather, that the character of the vessels and the actions of those operat- ing them should determine whether their character was piratical 56 under the law of nations. It would appear that the customary mention of piracy as defined either by municipal law or by the law of nations would be the most inclusive manner in which this 57 particular crime could be covered in an extradition treaty. In the treaty practice of the United States there have, however, been exceptions to the rule of mentioning the law of nations in connec- 58 tion with the definition of piracy, and the record of negotia- tions in such instances does not suggest that the parties con- sidered the omission as seriously limiting the coverage of the 59 treaties.

16 THE INTERNATIONAL LAW STANDARD

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16 THE INTERNATIONAL LAW STANDARD About one seventh of the specific mentions of the international law standard are in provisions relating to war and neutrality. They occur in connection with such different things as treat- ment of prisoners of war, reprisals, contraband, and prize law. With various Latin American states the United States contracted not to resort to war or to reprisals for treaty violations unless justice and satisfaction were denied "in viola- 62 tion of the laws and of national right." There are a number of mentions of international law in the Hague Conventions of 1899 and 1907, perhaps the most frequently referred to being that in was not in the draft treaty as proposed by Switzerland and seems not to have been suggested, at least in writing, by the United States (MS., U.S. Article II provides that com- batants falling into the hands of the enemy are prisoners of war and sub- ject to international law. Article XVII, paragraph 6, provides that the requisitioned means of transportation shall be subject to international law. The Spanish text (which is also authentic) reads, "con violaciön de las leyes у del derecho international." A similar provision is in an earlier treaty with the same state (10 Stat.

INTRODUCTION 17

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INTRODUCTION 17 83 the preamble of Hague Convention IV of 1907. Contraband of war was often listed in early treaties; without listing, the Havana Convention on Neutrality in Maritime War, 1928, referred to search of a ship for the purpose of ascertaining whether its cargo 84 might be "prohibited by international law." In peace treaties made with some of her former enemies in the Second World War, the United States secured the right to examine prize court decisions or orders of those states involving ownership rights of American nationals, and to recommend that revision be under- taken of such decisions or orders as might not be in conformity 65 with international law. A fourth category of provisions comprise those whereby the parties agree that international law shall be the standard of treatment to be accorded by each party, in its territory, to (1) the public agents or (2) the nationals, of the other party. As to the first, treaty practice has been marked by a rather careful dis- tinction between diplomatic agents and consular officers. On the treatment to be accorded to diplomatic agents, there is a body of law which is well known. When, nearly a century ago, an American negotiator was asked by Japanese officials the ques- tion, "What kind of thing is the law of nations?" his reply was 68 largely in terms of diplomatic privileges and immunities.

18 THE INTERNATIONAL LAW STANDARD

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18 THE INTERNATIONAL LAW STANDARD treaties the body of law applicable to diplomatic privileges and immunities has been used by the United States particularly in its relations with states in the Far East, the Middle East, and the 68 Near East. In the period when extraterritoriality existed in many countries, this may have been due in part to the desirability of including, as nearly as possible, all rules in effect between the parties in written undertakings, and in part to the idea that, international law having existed primarily between states of Christendom, it was sometimes needful to make clear that a 69 wider application was intended. With the passing of extraterri- toriality, or, in other instances, the recognition of new statehood, written agreements could emphasize the new, mutual rights and 70 duties under the law. That usage, rather than law, was some- 68 In 1854 a Chinese officer observed, in regard to certain negotiations with representatives of the Western state, that, "in the conduct of ques- tions arising out of intercourse with foreign nations, the authorities of China rested entirely on the treaty. They ac- knowledge the authority of certain maxims and usages, received among them by common consent, and called the law of nations; but which, not being fully acknowledged and observed by the Mohammedan or Pagan states . . . is, in fact, only the international law of Christendom" (7 Op. 88), the Agreement of Friendship and Com- merce with Yemen, 1946 (Treaties and Other International Acts Series

INTRODUCTION 19

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INTRODUCTION 19 times specified, even regarding diplomatic agents, is illustrated in the Sino-American commercial treaty of 1903.71 In the case of consular officers, while there are some excep- tional instances in which privileges and immunities under in- ternational law are referred to, it has been a more common practice to rely upon most-favored-nation clauses or provisions requiring conformity to established usage.72 That this would not rule out the law applicable is suggested by an opinion on the consular convention with France, signed February 23, 1853, by which consuls were to receive the privileges "usually accorded" to their offices.73 Of this, Attorney General Caleb Cushing wrote [hereafter T.I.A.S.], 1535), the Treaty of General Relations with The Philippines, 1946 {ibid., 1568), the Agreement of Friendship and Com- merce with Nepal, 1947 (ibid., 1585), and in the Treaty of Friendship, Commerce and Navigation with China, 1946 (ibid., 1871). It appears, from the record of negotiations, that neither international law nor international usage was referred to in the first article of the draft originally presented by the United States. The Chinese desired revision of this draft so as to make the right of diplomatic representation reciprocal, and, when the Americans agreed, this desire seems to have led to the insertion of "international custom" in the first sentence. The Chinese also wished to withhold the right, which the Americans had requested, for United States diplomatic agents to communicate with the governors-general and lieutenant-governors, provincial governors, imperial residents, and military governors of dependencies of the Chinese Empire. In that connec- tion it was proposed to make reference to "international law" in the second paragraph, and the treaty was initialed with this phrase included. As the treaty was finally signed, the wording was changed so that the reference in each of the two places, perhaps for the purpose of avoiding the use of two different standards, was made to read "international usage." Department of State files, Tfreaty] С Commissioners] no.

20 THE INTERNATIONAL LAW STANDARD

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20 THE INTERNATIONAL LAW STANDARD that "by the Consular Convention, and by the law of nations with- out it, the consul represented . . . his country," and "each na- tion does by the general rule of public law . . . concede to the consuls of the other a certain authority of discipline."74 As to ordinary nationals of one state in the territory of another, mentions of the international law standard have occurred espe- cially in establishment clauses, and particularly those relating to the protection of persons and property, in commercial treaties. Beginning with the treaty of friendship, commerce, and consular rights signed with Germany on December 8, 1923, and extend- ing through the treaty of friendship, commerce, and navigation signed with Ireland on January 21, 1950, sixteen out of the seventeen general commercial treaties which the United States signed (counting as a separate instrument from the Polish treaty the one concluded for Danzig) contained provisions whereby the nationals of each party were to enjoy, within the territory of the other, for their persons and property, the degree of protec- tion required by international law.75 There is some variation in the phraseology,78 which ordinarily is in a context relating to "the most constant protection and security" and to compensation 748 Op. 76 The treaties include those with the following states, the date shown in each case being that of signature: Germany, 1923 (44 Stat. [3] 2132); Hungary, 1925 ( 44 ibid. [3] 2441); Estonia, 1925 (44 ibid. [3] 2379); El Salvador, 1926 ( 46 ibid. [2] 2817); Honduras, 1927 (45 ibid. [2] 2618); Latvia, 1928 (45 ibid. [2] 2641); Norway, 1928 (47 ibid. [2] 2135); Aus- tria, 1928 (47 ibid. [2] 1876); Poland, 1931 (48 ibid. [2] 1507); Danzig, 1934 ( 48 ibid. [2] 1680); Finland, 1934 (49 ibid. [2] 2659); Siam, 1937 (53 ibid. [3] 1731); Liberia, 1938 ( 54 ibid. [2] 1739); China, 1946 (T.I.A.S. The commercial treaty which does not refer to international law is that with Uruguay, signed in 1949 (Sen. See Chapter III, section lb, infra. The preambular reference to international law in the treaty of establish- ment between the United States and Turkey, signed October 28, 1931, and references to "rights accruing by treaty or otherwise," as in the commercial treaty with Finland, cited above, may be noted. (On the former, see Chapter III, section la, infra).

INTRODUCTION 21

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INTRODUCTION 21 for property that is expropriated. The manner in which the inter- national law standard in such clauses is related to others, such 77 as that of national treatment, is to be discussed later. Recent treaties providing for the termination of extraterritorial privileges have contained, sometimes with specific reference to the treatment of foreigners, various provisions as to international law. Thus the Montreux Convention of May 8, 1937, states in the preamble the purpose of establishing, between Egypt and the other states concerned, relations which shall be based on "ordi- nary international law." By the second article, foreigners resident in Egypt are to come under Egyptian legislation, subject to inter- 78 national law. The treaty of January 11, 1943, in which the United States relinquished extraterritorial rights in China, pro- vides in the first article that American nationals in China are to be subject to Chinese jurisdiction "in accordance with the prin- ciples of international law and practice." The seventh article records the parties' agreement to negotiate a modern commercial treaty "based upon the principles of international law and prac- tice as reflected in modern international procedures." Pending the conclusion of such a treaty, questions coming up were (in accordance with this article and the notes exchanged) to be de- cided "in accordance with generally accepted principles of inter- 79 national law and with modern international practice." In a fifth category fall clauses making mention of the inter- national law standard in relation to maritime and fluvial frontiers, and navigation rights. In one instance the occasion is application of the law to a change of an international boundary, in another the application of the principle of free navigation of international waterways; in still others, the law is referred to in connection with the parties' agreement on the three-mile limit as marking 7 7 Chapter III, section 1, infra.

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22 THE INTERNATIONAL LAW STANDARD the proper (in the sense of legally established) extent of terri- 80 torial waters. More particularly, there have been some direct references to international law in such instruments as the Convention on Rights 82 and Duties of States, 1933, the declaration concerning interven- 83 tion in the Buenos Aires Convention of 1936, the General Treaty 84 of Inter-American Arbitration, 1929, the Anti-War Treaty of 85 October 10, 1933, and the Bogota Charter of the Organization 88 of American States, 1948. They have to do with the binding force of inter- national agreements under conditions of hostilities, and prescribe simply that, in time of war, the sanctity of designated treaty articles shall be measured by observance of international law. In a miscellaneous category may be placed various other references to the standard, such as one recognizing that inter- 80 See Chapter III, section 2, and Chapter IV, section 2, infra. In the Final Act of the Con- ference, the text of the Charter is referred to as containing "all the doc- trines, principles, purposes, practices and accomplishments that have gov- erned the peaceful relations of the peoples of America, and that constitute an advanced form of international law which the continent has contributed to the progress of the juridical and political culture of the world" (section I). Other references to international law are in sections XXXII and XXXV of the Final Act, and in article XXXI(b) of the Pact of Bogota (as also in reservations to the Pact by the United States and Nicaragua, respectively).

INTRODUCTION 23

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INTRODUCTION 23 88 national law fixes domestic jurisdiction, another in which the United States agreed to conform to international law in its action 89 with respect to Cuba, and a treaty assurance to the United States that Dominican courts would determine rights according 90 to international law. A provision which became the subject of a considerable discussion was that in the Gadsden Treaty whereby the United States sought the right to protect rights of certain of its nationals when it should feel "sanctioned and war- 91 ranted by the public or international law." There are, finally, the United Nations Charter, with its preambular reference to sources of international law, in addition to its mentions of the law in connection with peaceful means of settling or adjusting international disputes or situations which might lead to a breach of the peace, and the various references to the law in the Statute of the International Court of Justice. SPECIAL ASPECTS OF UNITED STATES PRACTICE In the foregoing sections sufficient examples have been noted to indicate that the international law standard has been specified in treaties which related to a wide variety of subjects. Of course, other states besides the United States have in their treaties re- 92 ferred to the international standard. Possible justification for singling out this country for special consideration lies in (1) the environmental and human factors in the country's development, (2) the relatively strong emphasis upon legality in its constitu- tional system, and (3) its steadily increasing material power and consequently increasing responsibility. If the distinctive qualities observable in the role of the United States with respect to inter- 8 8 Declaration accompanying the treaty relating to insular possessions in the Pacific, December 13, 1921 ( 4 3 Stat. [2] 1 6 4 6 ) , and reservation of the United States to the treaty.

national law can be ascribed at least in part to its geographic

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2 4 T H E I N T E R N A T I O N A L L A W S T A N D A R D national law can be ascribed at least in part to its geographic 93 situation and to the ethnic composition of its population, it may also be possible to show that, believing strongly in the rule of law in their domestic affairs, its policy makers have not un- naturally thought internationally in terms of legality and not merely of power. If, in the past, particularly by reason of its for- tunate situation, its advocacy of particular principles or rules has been in large measure a matter of conscious choice rather than compulsion, the positions which it has taken in regard to the standard which is international law would seem to merit some special attention. The significance of anything the United States may do by way of applying or emphasizing the law presumably increases with its growing responsibilities. A mere classification of treaty references to the law, without a more detailed examination of illustrative situations which pro- vided occasion for some of these references, would be of small value. The essential purposes and the legal effects of certain references will be the object of inquiry in following chapters. In some instances it will be desirable to consider how definite a body of law there was in existence at the given times, and in other instances to try to see what the substantive rules on partic- ular matters actually were.

PACIFIC SETTLEMENT

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C h a p t e r I I PACIFIC SETTLEMENT Mentions of international law are to be expected in un- dertakings for the keeping of the peace and for resort to peaceful processes for settling disputes. Such undertakings may record the duty of abstaining from the use of unlawful, or the permis- sibility or duty of using lawful, means. In the absence of an inter- national legislature, indications of what these means are must come from other sources. Mere treaty statement of them is not to be considered apart from other evidences (since tribunals, foreign offices, and international conferences have important roles), but such statement serves a useful purpose. Or, they may indicate what shall not be considered unfriendly acts—as in connection with the use of good offices under the Hague Convention for Pacific Settlement of International Disputes. Outside the scope of the present inquiry are treaty clauses which declare merely that there shall be peace between the par- ties, a form of statement which American treaty makers have fre- quently employed.1 General references to international law and to the peaceful processes which are consonant with it occur in bilateral and in multilateral agreements for the employment of specific procedures in the settlement of disputes.

26 THE INTERNATIONAL LAW STANDARD

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26 THE INTERNATIONAL LAW STANDARD the means which the law permits, (2) clauses indicating what questions are to be considered as proper for adjudication, (3) prescriptions of bases for awards, and (4) special provisions, in claims conventions, concerning the law as to exhaustion of local 2 remedies. GENERAL COMMITMENTS TO USE LEGAL MEANS Formal declarations that party states will abide peacefully by the rules of established law, as a matter of public policy and legal obligation, do not necessarily go very far. They may be in such vague and nebulous phrases that there is no very perceptible inroad upon the system which has traditionally permitted war as a "lawful" procedure. The preamble of Hague Convention I of 1907, for example, mentioned respect for the empire of law, 3 appreciation of international justice, and the principles of right, but from the same conference emanated conventions which recognized, at least by implication, that by declaring war states might acquire rights against other states (even rights against those states not participating in the war). See also the statement that some opinions of international tribunals reveal, in the author's opinion, a lack of comprehension of the nature of international law and of the method of ascertaining the existence of rules, in Fred K. Nielsen, International Law Applied to Reclamations (1933), p.

PACIFIC SETTLEMENT 27

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PACIFIC SETTLEMENT 27 With the initiation of the movement for the renunciation of war as an instrument of national policy, there began to be more committal pronouncements in treaties. The Pact of Paris (1928), by its second article committing the parties not to seek the settlement of disputes except by pacific means, perhaps marks the most spectacular and universal effort in this general direction.6 Although there is no specific reference in the Pact to inter- national law, its interpretation in relation to that standard was to have far-reaching importance. Kellogg thought that it was desirable to make the Pact brief and direct. To the French ambassador, on February 27, 1928, he wrote: "If . . . such a declaration were accompanied by defini- tions of the word 'aggressor' and by exceptions and qualifications stipulating when nations would be justified in going to war, its effect would be very greatly weakened and its positive value as a guaranty of peace virtually destroyed. The ideal which in- spires the effort . . . is arresting and appealing just because of its purity and simplicity."6 In the course of the conversations with the United States out of which the Pact finally came, the French government empha- sized that the treaty must not come into effect until accepted by all or substantially all of the powers of the world. On this point the American Secretary of State said, in a telegram to the American ambassador in Paris on April 23, 1928, that, while it had from the beginning been the hope of the United States that the instrument should be world-wide in its application, it was clearly preferable "not to postpone the coming into force . . . until all the nations of the world can agree upon the text of such a treaty and cause it to be ratified." The United States, he said, was "not willing to jeopardize the practical success of the proposal . . . by conditioning the coming into force of the treaty upon prior universal or almost universal acceptance."7 In 5 See, generally, David Hunter Miller, The Peace Pact of Paris (1928); James T.

28 THE INTERNATIONAL LAW STANDARD

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28 THE INTERNATIONAL LAW STANDARD a telegram to the American ambassador in London on May 9, Kellogg emphasized that, while each government was consulting its legal advisers, the main question was not "juridical" but 8 "political." He thought that a conference of jurists was unneces- sary and undesirable, and that, as he expressed it in a telegram to London three days later, a commission of jurists, "if they got together, would spend their time trying to find out some reason 9 why it could not be done." In a conversation with the Japanese charge on June 12, 1928, the American Under Secretary of State indicated that, in their consideration of the treaty, American representatives "would not be disposed to listen very much to 10 jurists. This was not that kind of treaty." Nearly a month later the Secretary of State expressed the hope that "legalistic efforts to justify in advance the violation of the proposed renunciation of war treaty" would not be permitted to "obscure the issue or 11 delay the conclusion" of this treaty. The selection of the original signatories caused some difficulty, but the chief advo- cate made it clear that the plan was to submit the Pact, after signature, to every country and extend an invitation to each 12 one to become a party. Thus the Secretary of State said, in a telegram to the American ambassador in Argentina, on Oc- tober 25, 1928: I believed that if a treaty could be entered into between the prin- cipal Powers of Europe which was simple and did not involve any complicated system of sanctions or agreement to punish violators, that it would be readily accepted as a principle of international law by all 13 the world. At the time of the visit of the British Prime Minister in the following year it was reported to have been officially agreed that the Pact marked a "new starting point for international 14 negotiations for the preservation of peace," and in 1930 the Acting Secretary of State referred to "our assumption" that the 15 Kellogg Pact "marked a new era in international relations." Two years later Secretary of State Henry L.

PACIFIC SETTLEMENT 29

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PACIFIC SETTLEMENT 29 his "efforts to make it a real and effective treaty instead of a mere concurrent expression of a pious intention."16 The effort had been to "transpose into international law" the proposition inherent in the Pact, which, it was suggested, would mean that no nation could continue to benefit from belligerent rights or those of neutrals, and that recognition would be denied to what had been obtained in violation of the Pact.17 Of the many interpretive statements which the treaty elicited, perhaps the most cynical was the suggestion that the whole undertaking had had the effect of "outlawing" only declared wars. There seems to have been a widely held opinion during the first decade after its signature that, while the treaty might have considerable moral force, its legal force was very limited because of the absence of any indication of what the parties to it were obliged to do by way of enforcement.18 As is well known, there were in this decade relatively frequent proposals of plans for "implementing" the Pact. Among the most widely publicized unofficial statements were the Budapest Articles of Interpretation (1934), approved by the International Law As- sociation.19 However, down to the beginning of the Second World War, there continued to be much skepticism about the legal value of the formal renunciation of war. In the later period of the gradual formation of a front against states which had flouted the principle of the treaty, this view appears to have yielded to the idea that there was an important legal quality in the instrument. Thus, long before the Nuremberg trials ap- plied the idea, and even before the United States became a belligerent in the war, Justice Robert H. Jackson of the United 16 Ibid., 1932, I, 250.

30 THE INTERNATIONAL LAW STANDARD

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30 THE INTERNATIONAL LAW STANDARD States Supreme Court, in an address before the American Bar Association, said, concerning the Pact: This treaty . . . was not wholly sterile despite the absence of an express legal duty of enforcement. It had legal consequences more sub- stantial than its political ones. It created substantive law of national conduct for its signatories and there resulted a right to enforce it by the 20 general sanctions of international law. It remained for the spokes- man for the United States at the International Conference on Military Trials, held in London in the summer of 1945, to take the position that unless the Pact had altered the status of wars of aggression it had no meaning at all and came close to being an act of deception. The agreement was regarded as "one in a series of acts which have reversed the viewpoint that all war is legal and have brought International Law into harmony with the common sense of mankind, that unjustifiable war is a crime." In the course of the conference sessions, Mr. Jackson observed: "If we go back to the pre-Briand-Kellogg pact days, there is no doubt that for a period of international law all war-making was legal . . . [The Kellogg-Briand] treaty and the acts which fol- lowed it did something to the law of war, and that change is 21 what we stand on." The American position thus came to be that of charging aggression, and of bringing the Nazi leaders to trial because of their illegal acts, while others, such as the 22 French, just wished "to show that the Nazis were bandits." "Crimes against peace" were distinguished in article 6(a) of the Nuremberg charter.

PACIFIC SETTLEMENT 3 1

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PACIFIC SETTLEMENT 3 1 of World War II the making of aggressive war was not an international crime, held that its charter was expressive of in- ternational law which existed at the time the charter was con- cluded, and went on to say of the principal instrument relied upon: The nations who signed the Pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the Pact, any nation resorting to war as an instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed 23 by the Pact. It has already been seen that there were other multilateral agreements which the United States signed and which did make reference in terms to what was established as "law" and as law- ful means. The Argen- tine Anti-War Treaty of October 10, 1933, commits the parties to the settlement of disputes by the pacific means having the sanction of international law, and refers separately to the politi- 25 cal, juridical, or economic means which that law authorizes.

32 THE INTERNATIONAL LAW STANDARD

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32 THE INTERNATIONAL LAW STANDARD on Rights and Duties of States will be the subject of later dis- cussion.26 Desire for clarification of legal obligations which the United States and other American republics had assumed under various treaties led to the making of the Buenos Aires Conven- tion to Coordinate, Extend, and Assure the Fulfillment of the Existing Treaties, signed December 23, 1936. The Anti-War Treaty of October 10, 1933, was integrated with the new instru- ment, and there was again formal reference to the means having the sanction of international law as those to be used exclusively by the contractants in relation with other parties to the treaty. There would not appear to have been a complete breaking away from traditional rules which might imply the legality of war and the duty of impartial treatment of belligerents by neutrals.27 Reservations did not clarify the situation. Even if they had done so, their force and effect, so far as the United States was con- cerned, would have to be considered in the light of the ac- companying declaration, which stated that reservations to the convention did not constitute amendments to the text, and that reservations, interpretations, and definitions by separate govern- ments were for the benefit of the latter and not intended to be controlling on the United States.28 From the records of the conferences of Washington (1929), Montevideo (1933), and Buenos Aires (1936), it appears that there was an intention on the part of the delegates to do more than pay mere lip service to the "principles of international law" and to go farther than a mere formal endorsement of the means which that law permits. In connection with his list of eight "vitally important principles and proposals for a comprehensive peace program and peace structure," Secretary Hull said at the Buenos Aires Conference that international law "should be re- 2 8 Chapter IV, section lb, infra. 27 The anticipation of neutrals' use of the sanctions of international law was not followed by any specification in the treaty of what those means were.

PACIFIC SETTLEMENT 33

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PACIFIC SETTLEMENT 33 29 established, revitalized and strengthened." The cautiously phrased provisions of some of the conventions, and particularly the form of reservations by the United States, seemed to reflect a desire to conserve as much as possible of the stabilizing in- fluence of traditional international law, while at the same time moving toward a system of greater security. A fundamental principle of that system would be the branding of aggressive war as illegal and the legalizing of at least permissive sanctions against it (on the part of states that were not the victims of aggression in the first instance). The transition was necessarily difficult and called forth some critical suggestion that the policy of the United States was essentially one of violating previously 30 established international law. That the newer type of multilateral treaties have not had the effect of freezing the rules of the law of nations (particularly those of adjective law) as they existed at any one time, may be safely assumed. They have sought, rather, to promote the funda- mental purposes of the law to which they made reference, and have identified those purposes with the ideal of peace. The experience of the Second World War was followed by further formal expressions of American solidarity.

in the principles of justice and international law" and referred

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3 4 T H E I N T E R N A T I O N A L L A W S T A N D A R D in the principles of justice and international law" and referred to peace as "the realization of justice . . . guaranteed by law"; and in the first article of the Inter-American Treaty of Recipro- cal Assistance, the parties condemned war and undertook in their international relations "not to resort to the threat or the use of force in any manner inconsistent with the provisions of 32 the Charter of the United Nations or of this Treaty." While the Pact of Bogota, signed in 1948 and designed to replace eight prior multilateral agreements on pacific settlement, refers directly to international law only with respect to questions arising under that law, it does (subject to an article concerning the right of individual or collective self-defense as provided for in the Charter of the United Nations) bind the parties "to refrain from the threat or the use of force, or from any other means of coercion for the settlement of their controversies, and 33 to have recourse at all times to pacific procedures." 2 . CRITERIA FOR DISTINGUISHING JURIDICAL QUESTIONS The idea that some questions over which states have disputes are justiciable, and that others are not, fits in conveniently with the consent theory of international law. It is consistent with the notion of a body of rules which is relatively narrow in its range and with the conclusion that there are many questions that arise for which international law affords no solution be- cause the states have never consented to extend the law to the subject matter involved. 33 Report of the Delegation of the United States to the Ninth International Conference of American States, Department of State Publication 3263 (1948), p. 3 4 See the statement by the Permanent Court of International Justice, P.C.I.J., ser. Borchard, "The Resurrection of International Law," Proc.

PACIFIC SETTLEMENT 35

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PACIFIC SETTLEMENT 35 provisions of typical arbitration treaties of the United States. The common formula of these instruments puts within the cate- gory of justiciable those questions which by their nature are susceptible of decision by an application of international law.35 The limiting effect of defining justiciable questions is further emphasized by the inclusion of a provision reserving from adjudication "domestic jurisdiction questions." Such a provision is an indirect reference to the general law. There has been some variation in the form of statement. When a bilateral arbitration treaty, such as those which the United States made with many non-American states in 1928, 1929, and 1930, specifies that its provisions "shall not be invoked in respect of any dispute the subject matter of which . . . is within the domestic jurisdiction of either of the High Contracting Parties," 38 the exception is a very wide one, since practically any question which might come up would be in some sense relatable to domestic jurisdiction. For example, it has been suggested that confiscation of alien- owned private property would not be technically justiciable if a domestic law of the state authorized it.37 If excepted ques- tions are those which are "solely," "essentially," or "exclusively" within the domestic jurisdiction, the reserve clause is far less limiting in its effect. When the United States was negotiating one of its arbitration treaties of the newer type with Turkey, the ambassador of that country presented a text referring to the term "domestic jurisdiction" as including "all matters pertaining to the right of sovereignty, to the principles of fundamental laws, to differences the settlement of which is left by international law to the exclusive competence 35 On the use of "equity" in such treaties, see section 3, infra.

of each state, particularly matters concerning emigration, nation-

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3 6 THE INTERNATIONAL LAW STANDARD of each state, particularly matters concerning emigration, nation- ality and the customs regime, as well as all questions predicated upon national jurisdiction." This was later changed so as to in- clude only "questions of sovereignty and all differences the settle- ment of which is left by international law to the exclusive com- petence of each state," but further negotiations did not result in 38 the signing of an arbitration treaty. Article 15 of the League of Nations Covenant distinguished matters which by international law were "solely within the do- 39 mestic jurisdiction." Somewhat more specific was the descrip- tion, in the General Treaty of Inter-American Arbitration, 1929, of controversies which are "within the domestic jurisdiction of any of the Parties to the dispute and are not controlled by in- 40 ternational law." A possible effect of this difference in wording (from that in bilateral arbitration treaties with European states) was to create a different jurisdictional base in relation to arbitration com- mitments with American republics and with states outside the 41 Western Hemisphere. Any reference in an arbitration treaty of the United States to international law for the purpose of designating justiciable dis- putes should be viewed in relation to the policy which the country has followed in regard to arbitration in general. It is с о т т о д knowledge that the United States, long an advocate of the arbitral method of settling disputes, has in the past advo- cated arbitration that is voluntary, not obligatory—the latter type being distinguished by the fact that commitments to arbi- 42 trate antedate the occurrence of the disputes. Outside of a few exceptional cases, such as the reference of the Pious Fund cases with Mexico and of the I'm Alone question with Canada, the 38 For. 39 In a statement that has been much quoted, the Permanent Court of International Justice said that the question of what is "solely a matter of domestic jurisdiction" is essentially a relative one, depending upon the development of international relations (P.C.I.J., ser.

PACIFIC SETTLEMENT 37

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PACIFIC SETTLEMENT 37 American government has instituted arbitral proceedings under the terms of specific reference agreements which postdate the occurrence of the dispute, and not merely under general arbitra- tion engagements. The United States Senate long asserted its function of passing upon each particular reference (to arbi- trators) of any question, as well as its function of approving the general arbitration treaty in the first instance.43 This was forcefully illustrated in the action by the Senate on the Treaty of Inter-American Arbitration, when it was made clear that the special agreement (of reference) was to be made in each case by the President, and then only with the advice and consent of the Senate.44 Under such a reservation, omission of such a word as "solely" from the descriptive clause concerning matters of domestic jurisdiction would not seem to make any great practical difference. Any tribunal would have been, as was emphasized with respect to the Permanent Court of International Justice during the Senate debates in 1935 concerning adherence by the United States, one to which this country could go, but not one to which it could ever be brought against its will. A practice of permitting reference of any dispute to arbitra- tion only through a special agreement which shall take the form of a treaty places emphasis upon the general principle of customary international law that no state is bound to arbitrate any matter against its will.45 Omission from the general arbitra- tion treaties of the clause requiring that every compromis must be a formal treaty would not necessarily assure arbitration, but the legal obligation to refer (at the request or application of either party) would rest more definitely upon each party. Whether the obligation would be discharged by action of the executive alone, or by the executive with advice of a legislative 4 3 Robert R. 2 7 ) . "It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement."

38 THE INTERNATIONAL LAW STANDARD

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38 THE INTERNATIONAL LAW STANDARD body, would be a matter of constitutional arrangement and not one governed by international law. Elimination of the require- ment of any agreement for the reference of any particular dis- pute (other than that in the general commitment, such as states commonly make when accepting the Optional Clause of the International Court of Justice), and the substitution therefor of the method of simple application by either party, means a far- reaching change. The old method, along with the plan of de- scribing excepted questions and not leaving to the arbitral agency the authority to decide whether a particular dispute came within the exceptions, made consent to the particular proceedings a condition precedent of any adjudication. The abandonment of that method represents an essential step in the 46 development of effective international organization. It is obvious that an applied standard will become more normal as individual states give up the right to be final authoritative interpreters of treaties for themselves, and the role of interpreter is transferred to inter- national agencies having behind them the combined will and collective authority of all or the greater part of the community of states. I have asked that it recede from the request 49 in the interest of uniformity." To the American ambassador in Turkey, he telegraphed, "Modification of, or addition to, the texts of the treaties . . . so as to meet the susceptibilities and 46 See, on the relative importance of this step in the development of an effective international system, Hans Kelsen, "Compulsory Adjudication of International Disputes," Amer.

PACIFIC SETTLEMENT 39

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PACIFIC SETTLEMENT 39 apprehensions that are peculiar to one or more countries would render impossible execution of this Government's program for negotiating treaties . . . which are substantially identical with all 50 other governments outside of Latin America." The American effort was not completely successful. Denmark, while accepting what the United States proposed, would have preferred a less limited treaty; the Spanish ambassador, under instructions, replied that his country, having "adopted . . . as a standard for a treaty of arbitration one that embraces all the disputes and conflicts, without any exception whatsoever," could not sign a treaty which, in the opinion of the Spanish government, did not "respond to the breadth of judgment that . . . inspired its in- ternational attitude"; Siam preferred a less limited treaty of 51 arbitration. The formula in what the United States proposed, describing 52 justiciable questions in terms of law, occasioned some dif- ficulties in the negotiations. For example, the Polish government proposed to substitute for the words 'law or equity" the words "international law and custom." Replying to this suggestion, the Secretary of State said: The term "international law" is less inclusive than the term "law," and I feel that it would be inadvisable to adopt language which would 60 Ibid., p. 52 The formula, as it appears in the treaty with France, is as follows: "All differences relating to international matters in which the High Con- tracting Parties are concerned by virtue of a claim of right made by one against the other under treaty or otherwise, which it has not been possible to adjust by diplomacy, which have not been adjusted as a result of refer- ence to the above-mentioned Permanent International Commission, and which are justiciable in their nature by reason of being susceptible of deci- sion by the application of the principles of law or equity, shall be sub- mitted. . . ." The General Treaty of Inter-American Arbitration (note 44, supra) does not contain the words "or equity" as they are used in the bilateral arbitra- tion treaties with European states. When in the course of the negotiation of some of the bilateral treaties, there was a reference to the Inter-Ameri- can Treaty as being, in some respects, preferable to what the United States proposed for inclusion in the bilateral ones, representatives of the United States pointed out that at that time the Inter-American Treaty had not yet been approved by the United States Senate. (It was approved on April 1, 1935.)

40 THE INTERNATIONAL LAW STANDARD

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40 THE INTERNATIONAL LAW STANDARD have the effect of restricting the criterion by which the parties to the proposed treaty must determine whether a particular dispute is or is 53 not justiciable. The Netherlands government desired a rewording which would leave out the word "equity," the latter being objection- able as "a juridical notion which does not seem well-defined to 54 non-Anglosaxon minds." The Czechoslovak foreign minister preferred to substitute for the word "equity" the words "inter- national law," since under Czechoslovak law "equity" conveyed a different connotation. To this the Secretary of State replied that he did not believe that differences in existing definitions of 65 equity were grounds for concern. In the course of the negotiations with Sweden, the minister of that country raised the question of whether the words, "and which are justiciable in their nature by reason of being sus- ceptible of decision by the application of the principles of law or equity," did not give to each party a "further opportunity" to declare any concrete dispute to be outside the scope of the treaty. The United States representatives failed to see how the words, if properly construed, would afford such an opportunity. The Swedes then suggested that the words quoted were superfluous, since differences of a legal nature were adequately compre- hended in the language concerning a claim of right made by one party against the other party.

PACIFIC SETTLEMENT 41

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PACIFIC SETTLEMENT 41 When, in the course of negotiations with his country, the Ger- man ambassador inquired whether the words quoted above re- garding justiciability were to be understood as an interpretation and not a modification of the term "claim of right" in the same article, the Department of State replied, in part, as follows: The definition of a justiciable question in Article I must be taken as a whole, that is to say, to come within the scope of the arbitration treaty a difference must at one and the same time relate to an inter- national matter, be based upon a claim of right and be justiciable in its nature by reason of being susceptible of decision by the application of the principles of law or equity. To illustrate: a question arising under a treaty or under well settled principles of international law. If the question comes within this definition, it could not be excluded from arbitration because one of the parties might claim that it involves national honor or vital interests.57 In a communication to the Japanese Embassy, the Department of State said, concerning the scope of differences which the parties would be committed to refer under the new form of agreement, that this would be substantially the same as under the 1908 (Root) treaty. It added, "In both cases only differences of a legal or justiciable nature are referable. However, the draft Treaty is broader in scope, because the reservations de- scribed in Article II are more definite and limited than the reservations set forth in Article I of the Convention of 1908." As to the force and effect (upon article I) of the reservations in article II, the communication said: The reservations enumerated in Article II of the draft Treaty operate in part to clarify and define the scope of the Treaty by excepting from arbitration non-justiciable questions. For example, Article II Clause (a) of the draft Treaty, exempting domestic questions, is implicit in Article I, which limits the scope of arbitration to international justi- ciable questions.

4 2 THE INTERNATIONAL LAW STANDARD

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4 2 THE INTERNATIONAL LAW STANDARD The Department expressed the opinion that the word "other- wise" in the first article of the standard treaty denoted "a claim which might arise under any established principle of inter- national law"—a point which was to come up two years later in connection with an attempt to codify a part of international law.59 In response to the Japanese inquiry whether the words "principles of law or equity" in the same article meant to include the general principles of justice as accepted both in international and domestic law, and whether "equity" was to be understood as synonymous with ex aequo et bono, the Department's memo- randum submitted the following: The word "equity" is used in Article I to describe one branch of jurisprudence recognized by civilized nations as part of the general principles of objective law. The draft Treaty contemplates that a ques- tion is justiciable when it is susceptible of solution by the application of objective principles of law or equity. Consequently, the term "equity" is not to be understood to be synonymous with the term "ex aequo et bono" (in justice and good dealing), a subjective and variable standard depending upon the individual conscience of the judge.60 59 The committee of the Hague Conference for the Codification of Inter- national Law, 1930, which considered the subject of responsibility, had as a basis for discussion a statement referring to responsibility resulting from treaties "or otherwise." There was extended discussion of the meaning of these words, in the course of which some delegates referred to article 38 of the Statute of the Permanent Court of International Justice (Minutes of the Third Committee, League of Nations document C.351(c).M.145(c). A subcommittee which studied the matter submitted this text: "The expression 'international obligations' in the present Convention means obligations resulting from treaty, custom or the general principles of law, which are designed to assure to foreigners in respect of their persons and property a treatment in conformity with the rules accepted by the com- munity of nations" (ibid., p. A Roumanian delegate's proposal to insert the word "indisputably" before the word "accepted" was rejected, as was a Latvian representative's amendment which proposed the substitu- tion of the words "in conformity with the rules of law" for the words "the rules accepted by the community of nations" (ibid., p. See note 51, supra, and discussion of equity, in connection with the bases for awards, found in section 3 of this chapter.

PACIFIC SETTLEMENT 43

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PACIFIC SETTLEMENT 43 The general position taken by the United States in these bilateral negotiations was that international law is limited in its scope and that it does not pervade all phases of public inter- national life—or, to put it another way, that regarding some subject matters the law merely prescribes that each state shall 61 decide for itself. This does not necessarily mean, of course, that the scope of the law is static. In the light of what the Permanent 62 Court of Justice said concerning domestic jurisdiction questions, the precise legal effect of a provision for applying the standard might not always be the same over the life of an arbitration treaty of long duration. A development of community rights may affect 63 application. To one of the parties with which it made a bilateral arbitration treaty in 1928, the United States through its Secretary of State observed that, "the present treaty, when effective, must, of course, be construed in accordance with international prac- 6 4 tice." In one sense, any question which treaty makers agree to have arbitrated thereby becomes "justiciable," and in such an under- taking as that in which it accepted membership in the Inter- 65 national Labor Organization, the American government as- sumed certain obligations regarding the obligatory jurisdiction of an international tribunal, without specific reserves as to the "justiciability" of matters referable or the requirement of another 66 formal treaty before the court could exercise its jurisdiction. nunciation of war. T h e American position was that there was no such con- nection between the two "operations" as to make one at all contingent upon the other (For.

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44 THE INTERNATIONAL LAW STANDARD In the light of these considerations, the role of the United States in the decision of the question of whether the International Court of Justice should have a general "compulsory" jurisdiction and the action thereafter taken toward accepting the jurisdiction become central elements in the policy following World War II with respect to the standard which is international law. Reservation by the United States of the right to withhold from reference to the Court "disputes with respect to matters which are essentially within the domestic jurisdiction of the United States . . . as de- 67 termined by the United States" would not seem to mark a departure from the assumption on which rested its arbitration treaties of the preceding two decades. Consistency of the reserva- tion which the United States has made—and which has subse- quently been followed in acceptances of the Optional Clause by certain other states—with the basic plan of the Court (specifically, with paragraph 6 of article 36 of its Statute) may conceivably become the subject of judicial decision. In accord with its "basic policy . . . designed to achieve general recognition of the rule of law in international rela- tions," it proposed that, "in all cases based upon claims of legal right," the American states agree in the Pact of Bogota to accept the jurisdiction of the International Court of Justice as obligatory 67 On the adoption of the reservation, and the probable legal force and effect of it, see Francis Wilcox, "The United States Accepts Compulsory Jurisdiction," Amer. Law, XL (1946), 699-719; Lawrence Preuss, "The International Court of Justice, the Senate, and Matters of Domestic Jurisdiction," ibid., pp. This statement drew attention to the fact that there was a precedent in articles 84 and 86 of the International Civil Aviation Convention (T.I.A.S.

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PACIFIC SETTLEMENT 45 without the necessity of special agreement between the parties in individual cases. The United States proposed to "draw a distinct line between controversies which depend for their solution upon the interpretation of existing rules of law and those which, in effect, seek changes in legal relationships." The Pact, as finally approved by the Conference, provided for reference to the Inter- national Court of Justice of a dispute not resolved through the process of conciliation. It further provided that the parties were obligated to submit to arbitration any controversy which the Court should declare itself to be without jurisdiction to hear and adjudge, but the United States in its reservation made clear that submission on its part to arbitration should be dependent upon the conclusion of a special agreement between the parties to the case. Article V of the Pact excluded from the procedures accepted in the treaty "matters which, by their nature, are within the domestic jurisdiction of the state," and provided for submission to the International Court of Justice (if the parties disagreed concerning the point) of the question of whether a controversy concerned such a matter. However, the United States reservation provided that acceptance by this country of the compulsory juris- diction of the Court should be "limited by any jurisdictional or other limitation contained in any Declaration deposited by the United States under Article 36, paragraph 4, of the Statute of the Court, and in force at the time of submission of any case."β9 From the foregoing it will appear that, so far as the United States is concerned, there have not yet been worked out criteria, aside from those to be applied by the country itself, for dis- tinguishing "legal" from "nonlegal" questions under all circum- stances. At Bogota the United States delegation was unwilling to undertake an "advance commitment" of "unlimited scope" which was deemed likely to "imperil existing legal relationships which constitute a stabilizing influence of major importance in international relations."70 The full force and effect of what is said in article II, paragraph 7, of the United Nations Charter con- 88 Report of the Delegation . . . to the Ninth International Conference of American States, pp.

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4 6 THE INTERNATIONAL LAW STANDARD cerning "matters which are essentially within the domestic juris- diction of any state" are yet to be determined.71 Recent study has shown that, in actual application, the paragraph has been con- strued in a realistic manner which may prevent it from working, in matters of really international concern, a paralysis of inter- national political bodies.72 3 . BASES FOR AWARDS It would appear from what has been said concerning the official position of the United States as to the nature of the arbitral process, that treaty makers might properly make clear that awards should be upon the basis of international law. Such references do in fact occur in numerous American treaties, the mention of the law being frequently in combination with such words as "justice" and "equity." Particularly in the early days of the republic it was sometimes difficult for American negotiators to get provisions into the treaties which would direct the settlement of claims in accordance with the law of nations. The diplomatic history of two early treaties with Spain, that of Friendship, Commerce and Navigation, 1795,73 and that of Indemnification, 1802,74 will illustrate. Before the 71 The mentioned paragraph of the Charter does not come within the type of treaty provisions with which this study is primarily concerned, since there is no specific reference in it to international law. At the San Francisco Conference, when an effort was made to include in article II, paragraph 7, wording which would have said, in effect, that the questions reserved were those which according to international law were within the domestic jurisdiction, the opposition relied in part upon the argument that omission of reference to international law would have no effect, since that law was the only criterion that could be applied, and in part upon the thought that international law was subject to constant change, as a result of which it escaped definition and should not, therefore, be listed as the criterion (UNCIO doc.

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PACIFIC SETTLEMENT 47 former treaty was signed, the Spaniards proposed to divide cases involving captures of American vessels into two groups corre- sponding to time "epochs." They wanted to have ships which had been taken during the first of these epochs judged according to the marine ordinances and the general orders communicated at the time (presumably communicated to the Spanish forces). Thomas Pinckney, American minister, sent to Manuel de Godoy, the Prince of the Peace, on October 20, 1795, the following ob- servations on the point: I am mortified . . . that your Excellency proposes to divide the war which has just been terminated into two epochs and that the American vessels which have been detained by those of Spain during that war should be differently treated according to the time at which they were taken, as it seems to me that Justice which should govern the conduct of nations toward neutral flags is always the same, and ought not to be liable to the variations of time or circumstances. It is very clear that the U.S. were as much neutral and as friendly to Spain at the beginning of the war as after the 1st of April last, and that consequently they should expect similar treatment at both epochs. That which is at least certain is that at all times they ought to be treated according to the law of nations, and I conceive I have proved very clearly what those laws are in this subject in my official letter of the 20 Sept. last and in order to avoid repetitions I take the liberty of requesting your Excellency to recur to that letter for the reasons 75 upon which our claims are based. 7 5 MS., Department of State, 6 Despatches, Spain (enclosure in Pinckney's despatch of October 28, 1795, to the Department of State). Pinckney subjoins some "specific propositions founded upon justice and the law of nations as now established by the consent of a great majority of the nations of Europe and adopted by Spain herself." The propositions as outlined allowed the condemnation of a vessel as prize only for contraband carriage or blockade running, stressed the effectiveness of a blockade as a condi- tion of its legality, and would have limited contraband to articles comprised under that description in article 24 of the Anglo-Spanfch Treaty of May 23, 1667, or article 24 of the Franco-American commercial treaty of 1778.

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4 8 THE INTERNATIONAL LAW STANDARD The Prince of the Peace touched but lightly on the dynamic qualities of the law of nations when, in his reply of two days later, he wrote to Pinckney in part as follows: You . . . conclude by repeating that all the detentions of the said vessels should be decided agreeably to the principles which you lay down as most consonant to the interests of the States and conformable to the laws of nations. Without waiting to prove to you the modifica- tions which according to the same law of nations those principles are susceptible of, I only inform you that the vessels detained before the 1st of April must be judged like all those of the other powers accord- ing to the maritime ordinance (ordinancä de corso) of the 1st of May 1794 a general law comprehending the U.S. as weil as all others until the special exception in their favor on the 6 April last by just considera- tions toward France.78 The American minister insisted, in turn, that the propositions that he had previously outlined were "founded upon principles already recognized" by Spain and the United States. He observed that, where there was a difference of opinion between two in- dependent powers, it was "a happy circumstance if they can have recourse to principles already admitted by both parties, without the one being obliged' to give up his opinion or to sacrifice his rights to the other."77 In the end the negotiators inserted in the treaty the now familiar formula which refers to "justice, equity and the law of nations." In the course of the negotiations in 1802, the question arose of Spam's responsibility for damage done to American vessels in Spanish waters by French privateers. Pedro Cevallos, the Spanish plenipotentiary, declared that such captures did not impose upon the Spanish government any further obligation than to de- clare them of no effect, whenever the circumstances which con- stituted the illegitimacy of the capture should be proved in a competent tribunal. He deduced this proposition from the prin- ciple that no sovereign was responsible for the wrongs done by the subjects or members of another. He told the American minis- ter, Charles Pinckney, that examples inconsistent with this prin- ciple owed their existence to temporary circumstances and "could 76 6 Despatches, Spain, English translation of communication of October 22, 1795 (italics inserted).

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PACIFIC SETTLEMENT 49 78 never destroy the rules of the law of nations." It was finally agreed that commissioners to be appointed under the treaty should decide, according to the law of nations and the existing treaty, whether there had been illegal acts committed by Spanish subjects against American citizens or by American citizens against Spanish subjects. After signing the treaty Pinckney sought to justify his acceptance of its terms even if they did not include the desired provision concerning Spanish liability for French spolia- 78 tions in Spanish jurisdiction. (As it was, differences between the two countries during the two decades following caused long delay in the Spanish government's ratification of the 1802 instrument, which finally took place on July 9,1818.) It may be questioned whether a treaty reference to the law of nations concerning neutral rights and duties, or concerning state responsibility for public acts of belligerents within its territory, in 1795 or 1802, could have been declaratory of a set of rules very clearly established. The position and influence of Great Britain had to be taken into account, for example, when there were claims that the rules of the Armed Neutrality of 1780 were already es- tablished rules of international law. The American plenipotentiary in the two instances mentioned sought official endorsement of rules which seemed to have received sufficiently wide, although not universal, acceptance. In these cases, as in many others, the treaty negotiators did not adopt any rules short of the law of nations (such as national marine ordinances), but subscribed to a vague general formula as the basis for future awards. That a formula which is not precise may occasion some dif- ficulty will appear from proceedings which followed the con- clusion of another treaty with Spain a few years later.

5 0 THE INTERNATIONAL LAW STANDARD

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5 0 THE INTERNATIONAL LAW STANDARD of claims grew out of acts of American forces in East and West Florida in 1812-13, 1814, and 1818. The second of these three "invasions," in particular, raised questions of customary inter- national law of war. The depredations alleged to have been carried out by General Jackson's troops occurred after the Spanish authorities in West Florida had proved unable to prevent violation of their territory by the British, who were at the time the enemies of the Americans. In the case of the Seminole war, Jackson took the position that the Spanish were bound by their treaty of 1795 with the United States to keep Indians within their territory at peace with the Americans, but that the Spanish had demonstrated their inability to do this, and therefore the United States forces could rightfully take measures that were necessary, even within Spanish territory. The claims which had developed became the subject of article IX of the 1819 treaty between the United States and Spain, which contained the following: The high contracting parties, respectively, renounce all claim to indemnities for any of the recent events or transactions of their respec- tive commanders and officers in the Floridas. The United States will cause satisfaction to be made for the injuries, if any, which, by process of law, shall be established to have been suf- fered by the Spanish officers, and individual Spanish inhabitants, by the late operations of the American army in Florida.80 In 1823 an act of Congress authorized and directed judges of superior courts at St.

PACIFIC SETTLEMENT 51

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PACIFIC SETTLEMENT 51 to Congress in the claimants' behalf. The meaning of the ninth article of the 1819 treaty became the subject of discussion. One point which came into question was the effect of the word "late" 82 as it occurred in the text. 8 3 After Congress passed the Act of June 26, 1834 (which au- thorized the Secretary of the Treasury to pay amounts that judges in Florida had awarded on the 1812-13 and 1818, but not the 1814, claims), there were some awards by judges in addition to those which had previously been made. On these awards also the Secretary of the Treasury exercised a revisory power; he laid down certain descriptions of claims which he thought the 1834 act did not authorize him to pay, and he excluded interest on the claims. This matter of interest furnished occasion for an appeal to internationally binding rules rather than to munici- pal ones.

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52 THE INTERNATIONAL LAW STANDARD signification which local laws or local usage may have given to its words or terms. . . . For it is a consequence most clear and palpable . . . that these words "by process of law," as terms used in the treaty, must be interpreted according to the laws of nations, and not accord- ing to our municipal code. . . . My opinion is, that they do imply and mean some legal proceeding—some mode of judicature in and by which the injuries, alluded to in the same clause of the treaty might be "established," and the damages resulting from them awarded or adjudged to the injured parties.86 The Attorney General did not find that the revisory function which the Secretary of Treasury had exercised was inconsistent with the treaty's requirement of "process of law."87 The United States Supreme Court had, in the meantime, held that it lacked jurisdiction to hear an appeal from a ruling which a federal court judge in Florida had made under the Act of 1834.88 Six years later the Court of Claims, by a divided vote, found that it could not give relief to the claimants.89 Execution of the ninth article of the 1819 treaty was a matter which hindered the realization of the most amicable relations between Spain and the United States during the greater part of the century. The meaning of a term such as "process of law" would have to depend upon the intention of the treaty makers. Where either international or municipal law may figure as substantive factors in the execution of provisions, it would perhaps be clearer to specify that there shall be decisions according to "applicable law"—as was done when the United States concluded a convention with the Nether- lands, March 18, 1938, concerning arbitration of a difference re- lating to payment for certain military supplies.90 86 5 Op. 45, 34th Cong., 3d Sess.; Moore, International Arbitrations, V, 4531.

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PACIFIC SETTLEMENT 53 In general, clauses relating to bases of arbitral settlement (whether of disputes that are essentially between states, or groups of claims brought in behalf of nationals, or of specific claims brought in behalf of nationals of one signatory against the gov- ernment of the other) fall into three categories: (1) those which specify only international law; ( 2 ) those which in terms specify something other than international law, for example, "justice," "equity," "public law," or the law of municipal courts; ( 3 ) those which specify international law and equity (and perhaps justice). An examination of illustrative provisions in each of these cate- gories can be usefully supplemented by reference, in some cases, to pronouncements of arbitrators who have given effect to the provisions. Perhaps the simplest method of directing application of existing rules of law is that which the United States and Great Britain used in the first two articles of their agreement of April 11, 1908, concerning the United States-Canadian boundary, when they directed that the arbitrator should determine rights arising under international law.91 The Geneva Tribunal which made the award in the Alabama claims had an authorization to apply stated rules (the parties having disagreed on whether these rules were declaratory of preäxisting law) and international law not in- consistent with these rules.82 A treaty such as that relating to Spitzbergen, signed February 9, 1920, may look to the establish- ment of a tribunal which shall take into consideration, inter alia, "any applicable rules of International Law."93 The Hague Con- ventions for the Pacific Settlement of International Disputes (1899 and 1907) both contain, in the section relating to arbitral pro- cedure, authorization for a tribunal which functions for the settle- ment of a dispute to declare its competence in applying the "prin- ciples of international law."94 Party states may simply express 91 35 Stat. The ques- tion of the allocation of certain islands was to be referred for decision under special rules provided and "under the recognized principles of international law not inconsistent therewith." 92 See Chapter V, section 2, infra. For example of an award based on a "literal and grammatical" interpretation of an article in the Treaty of Ghent, see Miller, Treaties, III, 106, 134. 94 Article 48 of the 1899 Convention, and article 73 of the 1907 one.

54 THE INTERNATIONAL LAW STANDARD

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54 THE INTERNATIONAL LAW STANDARD in the preamble of a bilateral treaty the desire to end their dif- 85 ferences in accordance with international law, a form of state- ment which may be considered in relation to the prevailing prin- ciple that no state may without its consent be obliged to submit 96 its disputes to adjudication. Where a treaty authorizes the application of international law as a basis for an award, this authorization would extend to pro- cedural as well as substantive rules. Recent research has shown that there has been developed what virtually amounts to cus- tomary law in the matter of evidence before international tri- bunals, and that, by analogy to a common rule of statutory construction, parties may be considered as having contracted in 87 contemplation of the existing practice. The second category of clauses comprises those which, in pro- viding for arbitral settlement, have not in terms mentioned the law of nations or international law as the basis for awards. Sandifer, Evidence before International Tribunals ( 1 9 3 9 ) , pp. See, in this general connection, the reference in 1928 to "well-established international practice in reference to claims," in connection with Sino- American claims adjudications (For.

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PACIFIC SETTLEMENT 55 vided that the arbitrators were to decide "to the best of their 101 judgment, and according to justice and equity." The fact that even under this formula the arbitrators made awards in accord- ance with what they found to be international law indicates that that law is not excluded as a basis because of the parties' failure to make specific reference to it. It is true that the use of terms logically distinguishable from international law has sometimes led to differences of opinion. For example, article IV of the French-American Treaty of January 15, 1880, set forth that "the Commissioners . . . shall . . . make and subscribe a solemn declaration that they will impartially and care- fully examine and decide, to the best of their judgment and ac- cording to public law, justice and equity, without fear, favor or affection, all claims within the description and true meaning of 102 Articles I and II." In the claim which France brought in be- half of Virginie Dutrieux, there was a question of war damage (by bombardment at Charleston, South Carolina) and an admission by the applicant state that there was no remedy at international law. Counsel for the memorialist argued, however, that the phrase "public law" was distinguishable from "international law" and that it was the intention of the contracting parties that the commission should recognize all equitable claims. The respondent government's agent submitted that the words "public law" were equivalent to "international law" and that the commission had an authorization to allow only such claims as would, under the law of nations and usage under it, be recognized as "just and equitable." In spite of the applicant state's submission that the "enlightened parties" to the treaty of January 15, 1880, had, in a broad and civilized spirit, agreed to forego the setting up of narrow, jealous objections which earlier and less advanced ages would have sanctioned as justifiable obstacles in the way of com- mon justice, the tribunal sustained the demurrer and did not 103 allow the claim. 101 The commissioners functioning under this formula had occasion, in the course of their work, to make certain rulings concerning exhaustion of local remedies, which are referred to in section 4, infra.

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56 THE INTERNATIONAL LAW STANDARD A question concerning the scope of "public law," as the term occurred in the treaty, was before the same commission in a somewhat different form when the French government claimed in behalf of Henri Dubos, a French newspaper writer whom General Benjamin F. Butler had arrested and imprisoned during the period of martial law at New Orleans in 1862. The applicant state submitted that the General's "pretended" martial law was illegal "bluster." The tribunal considered the right to establish martial law, the manner of its enforcement, and the right of a foreign government to claim damages in behalf of its nationals who had been punished for alleged offenses during the period of martial rule. Aldis) said, dis- senting, it was a right which the United States Supreme Court had upheld and which was therefore a part of the "law of the United States." The institution of such rule, during either civil or foreign war, was not in conflict with international law. The same commissioners considered, in the claim of Elise Lebret, the question of the nationality of a married woman according to "public law." The American commissioner, after reviewing the naturalization laws of Great Britain, Italy, Russia, Prussia, Spain, and the United States, and noting that these agreed substantially in having the nationality of the wife follow that of her husband (whether this be the nationality at the time of marriage or one subsequently acquired), and that this was true regardless of the wife's consent, said: The argument on behalf of the claimant, that the law of the United States must be held invalid by international law, because the wife's general status of alien-owned property in a theater of war, see Spanish Treaty Claims Commission, Documents and Opinions (1904—1910), II, 104. Wilson, "A Case of International Responsibility during Martial Rule," Amer.

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PACIFIC SETTLEMENT 57 consent is necessary to her change of citizenship after marriage, is fully answered by the practice and laws of the great powers. Indeed, this legislation of the great civilized states of the world establishes the doctrine that by public law the consent of the wife is not necessary, and that such laws of naturalization are valid, bind all subjects to their jurisdiction, and are to be respected by all other states. It may be added that no state in the world has ever declared by express legislation that the wife's consent is necessary. Even if one power, like France, were by express statute to declare that if the husband change his nationality after marriage it should not change or affect the nationality of the wife, that could not change the public law of the world or annul the laws of other states. . . . I cannot see that there is any equity or justice in calling her 10 French. ® In the protocols under which the Venezuelan claims commis- sions functioned early in the twentieth century, there was provi- sion for settlements "upon a basis of absolute equity, without regard to objections of a technical nature or of the provisions of local legislation." Of this, Umpire Frank Plumley of the British- Venezuelan Commission said, in the Aroa Mines case: International law is not in terms invoked in these protocols, neither is it renounced. But . . . since it is a part of the law of the land of both Governments, and since it is the only definitive rule between nations, it is the law of this tribunal interwoven in every line, word, and syllable of the protocols, defining their meaning and illuminating the text; restraining, impelling, and directing every act thereunder.

5 8 THE INTERNATIONAL LAW STANDARD

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5 8 THE INTERNATIONAL LAW STANDARD The guide, commonly safe and constant and usually to be followed, is international law. But if in the given case, not easily to be assumed, it should occur that its precepts are opposed to justice, or lead away from it, or are in disregard of it, or are inadequate or inapplicable, then the determination must be made by recourse to the underlying principles of justice and equity applied as best may be to the cause in hand. The umpire will apply the precepts of international law in all cases where such use will insure justice and equity for this reason, if for no other—that well-defined principles and precepts which have successfully endured the test of time and the crucible of experience and criticism are safe in use, and should never carelessly be departed from in order that one may step out into a way unknown to walk by a course unmarked. But these precepts are to be used as a means to the end, 106 which end is justice. The American-Venezuelan Commission also had occasion to assign meaning to the words "absolute equity" in the protocol. When, on the other hand, the umpire (Barge) in the Orinoco Steamship case seemed to take the position that the protocol of February 17, 1903, authorized his making an award without the restriction of fixed rules, the United States protested that there had been disregard of the terms of the proto- col and that the award contained essential errors of fact and law which would make it invalid under the principles of international law.

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PACIFIC SETTLEMENT 5 9 void "in view of all the circumstances and under the principles of international law." The tribunal of the Permanent Court of Arbitration did not sustain the Venezuelan argument that the um- pire could not have departed from any binding rules (on the sup- position that under the language of the 1903 protocol the 108 parties had given the commission unlimited discretion). The United States contended successfully that this country's prac- tice of inserting comparable wording in past arbitral agreements had not worked such a result as to give arbitrators complete dis- 109 cretion. If parties to a treaty do not necessarily exclude international law as a basis for arbitral awards merely by failure to refer to it in terms in the general agreement or in the instrument of sub- mission, they may do so by express treaty provision for the ap- plication of other rules. Perhaps the best example is the provision for bases of awards by the German-American Mixed Claims Commission after the First World War. Parker said in the Trudgett case, which had to do with liability for de- tention of civilians of enemy nationality: It will not be profitable here to consider the legality or illegality as tested by rules of international law of such capture, confinement and detention. As this Commission has . . . held, Germany's liability in cases presented here is determined not by rules of international law but by . . . the Treaty of Berlin irrespective of the legality or illegal- 1 1 0 ity of the act complained of.

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60 THE INTERNATIONAL LAW STANDARD Local law may become a factor of some importance, either by virtue of arbitrators' interpretation of their "charter" or by more specific authorization in an international agreement. The umpire of the Mexican-American commission under the treaty of 1839 felt that, in such a matter as the measurement of damages, prin- ciples of local law should serve as a guide, "in so far as they do not infringe the general principles recognized in the law of nations."111 A recent example of authorization by the parties is in the convention of April 15, 1935, in which the United States and Canada agreed that commissioners who were to arbitrate the questions concerning the smelter at Trail, British Columbia, should apply the law and practice followed in dealing with cog- nate questions in the United States.112 With the concurrence of the agents of both parties, the arbitrators adopted, as a rule for their guidance, the proposition that, "with regard to any matter as to which express provision is not made in these rules, the Tribunal shall proceed as international law, justice and equity may require." In the course of its decision the tribunal, after observing that the fourth article of the convention did not bind it to apply national law and practice to the exclusion of inter- national law and practice, said: It is further to be noted that the words "the law and practice fol- lowed in the United States" are qualified by "in dealing with cognate questions." Unless these latter words are disregarded, they mean a limitation of the reference to national law. The liability, which was broader than international law would have imposed, was to be computed in terms of money by ordinary legal methods. In determining the nationality of claimants, the commission had occasion to apply international law, although, in its Administrative Decision no. Whiteman, Damages in International Law ( 1 9 3 7 ) , II, 855. Moore, International Arbitrations, II, 1216.

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PACIFIC SETTLEMENT 6 1 becomes apparent when one refers to the questions set forth in the previous article. These questions are questions of damage caused by smelter fumes, of indemnity therefor, of measures or regime to be adopted or maintained by the Smelter with or without indemnity or compensation. They may be questions of law or questions of practice. The practice followed, for instance, in injunctions dealing with prob- lems of smelter fumes may be followed in so far as the nature of an arbitral tribunal permits. But the general questions of law and practice, such as the authority of the res judicata and exceptions thereto, are not 113 "cognate questions" to those of Article III. A treaty authorization in broad terms (concerning bases for awards) may furnish support for a ruling on a point for which there is no clear rule of international law, even without a direct application of municipal law.

differences of opinion, and arbitrators have sometimes thought

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6 2 THE INTERNATIONAL LAW STANDARD differences of opinion, and arbitrators have sometimes thought that their mandate was wide enough to enable them to make rulings which, if they were adhering to strictly legal rules rest- ing upon clear consent or treaties, they would not have been 117 able to make. Under the formula of the Jay Treaty prescribing "Justice 118 Equity and the Laws of Nations," arbitrators found that there were limits within which they must stay in measuring damages. For example, in the case of the Neptune, a vessel which had been seized and later restored but awarded only freight, demurrage, expenses, and the invoice price plus a mercantile profit of 10 per cent (which was less than the value of the cargo at London or Bordeaux), Commissioner Christopher Gore said: By comparing the rule adopted by the board with the doctrines of Grotius, Pufendorf and Vattel, we shall find that it is conformable to justice, equity, and the law of nations as understood by those celebrated writers; and it is presumed that this is the rule prescribed to belliger- ents, and with which alone neutrals are under any moral obligation to be content. If there is any principle that authorizes a belligerent to seize on the property of a neutral, on condition of paying him the original cost, and all expenses actually incurred, with interest, and which deems such to be a just and adequate compensation, it must arise from the voluntary or conventional law of nations. The law of nations, as derived from the general principles of justice and equity, 119 states a different doctrine. Under the 1868 claims convention with Mexico, arbitrators 120 were to decide "according to public law, justice and equity." An analysis of their work has revealed some lack of clarity about 121 their precise function.

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PACIFIC SETTLEMENT Θ3 according to law and equity, or whether it might be exercised in "conciliatory arbitraments"; he was willing to be governed in the 122 matter by the conclusion of the two commissioners. In a case involving seizure of American-owned tobacco in Mexico, Lieber ruled that, according to all the facts known to the arbitrators and according to "public justice," the claimants were entitled to an 123 award. In another case he said that the commission was "not a link in the common administration of justice, in the one or the other country, nor bound by anything but by the principles of justice and equity, progressively acknowledged by the jurispru- dence of our whole race, and the law of nations of that same 124 race." The British-American claims settlements under the special agreement signed at Washington on August 18, 1910, were to be made "in accordance with treaty rights and with the principles 125 of international law and of equity." In two of the cases before them which have been widely discussed, the commissioners had occasion to define the scope of their authority. In the claim of the Eastern Extension, Australasia and China Telegraph Com- pany, Ltd., the tribunal decided, in disposing of a British argu- ment that in the absence of any rule of law governing the matter of cable cutting the arbitrators had a duty to frame a new rule, that it had no such duty; it was of opinion that principles of international law existing in 1898 were sufficient for decision of 126 the case. In the Cayuga Indians case, commissioners felt justi- fied, on the basis of general principles of justice, in awarding 00,000, although the respondent state's defense seemed to be 127 adequate if tested by strict law. The commissioners referred to the provi- sions of numerous arbitration treaties which link "equity" with the law in specifying bases of settlement.

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64 THE INTERNATIONAL LAW STANDARD handsome relative terms as 'equity' and 'justice'" be eliminated 128 from arbitral agreements. The sequel to arbitral settlement of the Norwegian Ships case in 1922 also furnished occasion for discussion of the bases of an award. The majority of international lawyers seem to agree that these words are to be understood to mean general principles of justice as dis- tinguished from any particular system of jurisprudence or the municipal 129 law of any state. Dennis) reserved all rights of his state "arising out of the plain and manifest departure of the award from the terms of submission," and, while the United States subsequently paid the award, it informed Norway that it could not accept as proper or satisfactory in international arbitrations the mode by which the tribunal assessed damages or the absence of a reasoned statement indicative of the methods 130 of their computation. There will naturally be differences of opinion between individ- ual arbitrators in the matter of their attitude toward the applica- 131 tion of law, international and national. Neilsen, International Law Applied to Reclamations (1933), p.

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PACIFIC S E T T L E M E N T 6 5 take a too broad view of its jurisprudence, there are likely to be protests from the agent of the state against which an award is given. There is illustration of this in the history of the American- Panamanian Claims Commission under the conventions of July 28, 1926, and December 17, 1932. The parties, employing a familiar formula, authorized decisions "in accordance with the principles of international law, justice and equity." Of this authorization, the tribunal said that there was no reason to go into the question of whether these terms embodied an indivisible rule or meant that international law, justice, and equity had to be considered in the order in which they were mentioned, be- cause either of these constructions led to the conclusion that the commission should be guided by "broad conceptions" rather than "narrow interpretations."1 3 2 The comment which was made on convention, which article the tribunal said should "etre resolu en conformite a des principes admis par le droit international." On the matter of interest payments, President Verzijl concluded that there should be a different rule according to whether Mexico was or was not liable under international law. If Mexico was not so liable, there was to be no interest, unless payment of an award were unreasonably delayed past the date to be agreed upon. As to compensation for requisitioned property, Verzijl did not interpret Hague Convention IV of 1907, Annex 53, paragraph 3 (referring to the payment of the amount due) to imply interest. If this were not true in re- spect to international war, a fortiori it would not be true for civil war; there should not, therefore, be interest on this type of award except from the date of it.

66 THE INTERNATIONAL LAW STANDARD

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66 THE INTERNATIONAL LAW STANDARD this by Bert L. Hunt, agent for the United States, included the following: That provision of the arbitral convention which required that the awards be rendered "in accordance with the principle of international law, justice and equity," is not novel. International law, as an independent jurisprudence, is of course very immaturely developed. A large percentage of cases coming before international tribunals for solution involve questions which are impossible of adjudication in accordance with what can be said to be clearly defined and definitely recognized principles of international law, or even with a line of accepted adjudications in identical cases. In other words, international law, as generally accepted, is inadequate to all present requirements. When recognized principles of international law are found in- adequate to the decision of unprecedented cases, analogous principles are to be applied, such analogies to be formulated, however, with recognized "principles" of justice and of equity as the guides in this respect.

PACIFIC S E T T L E M E N T 6 7

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PACIFIC S E T T L E M E N T 6 7 The same tribunal's jurisprudence came into question in the Manzo claim,134 a case which involved principles of municipal law in relation to international liability, and in which the com- mission awarded $2,500 against the United States. Characterizing the basis of the award as somewhat obscure, the American agent said, on the point of whether the arbitrators had applied "inter- national law, justice and equity": The question involved . . . was . . . whether or not there was international responsibility on the part of the Government of the United States for the alleged negligence of a laborer foreman, which negligence the field of recognizable law, must be in strict accordance with the recog- nized "principles" of justice and equity. 134 Comision General de Reclamaciones (1936), Registro no. The injured Panamanian was a boy who was a water carrier for the Municipal Engineering Division of the Isthmian Canal Commission in 1905. The practice of allowing him to oil was equivalent to directing him to do so, and it was found to be negligence per se to employ so young a child (between ten and thirteen years of age) as an oiler of heavy machinery. In the course of its opinion the commission said (at p.

68 THE INTERNATIONAL LAW STANDARD

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68 THE INTERNATIONAL LAW STANDARD may or may not have been responsible for the injury to the claimant, another employee in the Canal Zone. Whether there was causative or contributory negligence on the part of the injured claimant did not appear from the evidence. The Commission, in searching for the proper law to apply in the caSe, dismissed at once the municipal law of both the United States and Panama. There would appear to be no well- defined principles of international law regulating the relations of "mas- ter and servant" as between governments and their employees, and the Commission appears to have so found. Had the Commission then stated that there was no controlling prin- ciple of international law or municipal law applicable to the case and that, under authorization of the convention, it intended to apply in lieu thereof some defined "principles" of "justice and equity," one might have understood the logic of the process, while perhaps disagreeing with the determination of legal liability in that manner in this class of 135 cases. The American agent's criticisms, in the paragraphs just quoted, are more pertinent by reason of the fact that, in other claims cases, the American-Panamanian Commission seemed to adhere rather strictly to rules of positive law, national or international.

applied only the letter of the local law, without apparent equi-

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PACIFIC S E T T L E M E N T 6 9 applied only the letter of the local law, without apparent equi- table considerations of the spirit thereof.137 The foregoing brief survey of the application which certain international commissions have made of treaty clauses in which there are mentions of the general law emphasizes that that law is the normal basis for arbitral awards. There have been other treaties of the United States in connection with which there have been references to international law as affording bases of awards of national (or "domestic") rather than international claims com- missions. When, in a treaty settlement, the United States has accepted a lump sum in satisfaction of claims of its nationals against a foreign government over a given period, there has some- times been express stipulation in the agreement that the UAited States will itself settle the claims involved.138 It remains, in such a case, for Congress to create the machinery and direct the bases of settlements to be made. Under these conditions, there is no strictly legal restriction upon Congress in the performance of its function, that is, nothing which requires that the legislative body instruct commissioners to apply international law. In actual prac- tice, a standard formula has come to direct settlements, that is, the disbursement of money received from the foreign state, ac- cording to justice, equity, the law of nations, and pertinent con- ventions. A study of the jurisprudence of fourteen "domestic" agencies of this kind which the United States used between 1803 and 1902 revealed evidence of the acceptance of funds as trusts, the understanding being that disbursement of them should be in accordance with principles.139 Since in the discharge of these trusts the government is essentialy compensating individuals for losses due to violation of international law, the ultimate effect of the treaties and of the adjudications pursuant to them is to afBrm 187 The tribunal said: "La Comisiön . . . es de ορίηίόη que el Agente de los Estados Unidos no hä demostrado que la ley panamefia no requeria en la ёроса de que se trata como condiciön para comenzar a contarse el periodo de posesiön para la prescripciön ordinaria, la transmitacion de la posesion por medio del registro de la escritura publica" (Comisiön General de Re- clamaciones [1936], Registro no.

70 THE INTERNATIONAL LAW STANDARD

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70 THE INTERNATIONAL LAW STANDARD the rules of that law existent at the time the respective causes of 140 action arose. Whether references to international law occur in general com- mitments to keep the peace, in treaties of arbitration or judicial settlement, in compromis for the submission of questions between governments, or in conventions for the settlement of claims of individuals against governments, three general observations seem to be pertinent, on the basis of American treaty practice. The first is that such provisions, however vague they may seem in some cases, signify at least nominal endorsement of the prin- ciple of legality, as distinct from purely arbitrary, capricious or 141 opportunistic procedures in international relations. The sec- ond'is that, since the law is not static, the precise legal effect of application of a formula such as that which has become common in general arbitration conventions would not necessarily be the same at different times over the life of an international agreement of long duration. It has been seen that, in many cases, the speci- fication of international law apparently had the effect of empha- sizing what would presumably have gone on even without this mention in the treaties. Where treaties of the United 140 See also Public Law 455, 81st Cong., 2d Sess., authorizing the Inter- national Claims Commission to apply, in the settlement of claims that were originally against Yugoslavia, provisions of the applicable claims agreement and "the applicable principles of international law, justice and equity." As suggested in the article referred to in the preceding note, such affirma- tion would be more true for substantive than for adjective law, since, in regard to the latter type of rules, there would be greater possibility of divergence between different national commissions.

PACIFIC SETTLEMENT 7 1

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PACIFIC SETTLEMENT 7 1 States have referred to equity in connection with international law, those applying the provisions have had to interpret the authorizations, and, in general, they have done so with caution. As between the use of equity in the sense of something that is independent and in the sense of something "dans les limites et l'atmosphere du droit,"143 the latter has received approval. If arbitrators have tended to identify equity with analogy,144 the formulas which have become familiar in American treaties do not clearly seem to have been intended, so far as the United States was concerned, to authorize something entirely separable from international law. Diplomatic exchanges in connection with the making of the standard arbitration treaties which the United States signed with non-American states, beginning in 1928, sup- port this view.145 4 . RECLAMATIONS: EXHAUSTION OF LOCAL REMEDIES The settlement of claims is normally in accordance with the standard which is international law. It is, of course, possible for states to waive their rights under that law, while not denying its 143 The expression was used by Eugene Borel in 1934 in a report to the Institute of International Law on the subject "La Competence du juge international en equite," Annuaire, XXXVIII (1934), 199.

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72 THE INTERNATIONAL LAW STANDARD applicability. Thus in their claims convention signed January 26, 1950, the United States and Panama, recording their recognition of the desirability of eliminating from their relations with each other any cause for difference, agreed to dispose of a group of claims which had been outstanding for a considerable time "on an equitable basis and without reference to the legal aspects/' One of these claims having been the subject of a prior decision by its Supreme Court, Panama made clear that it was not ignor- ing or disregarding this decision, which set forth "the legal aspects of the matter." Furthermore, the parties recorded that any other unsettled claims on behalf of nationals of either coun- try against the government of the other country, "whether arising under the provisions of agreements between the two countries or under general principles of international law, are not affected u e by the provisions of this Convention." Without shifting from the international law standard as a basis for settling a claim on its merits, parties may waive a particular defense under that law. In United States practice this has some- times been done with regard to the rule requiring the exhaustion of local remedies before the case may properly come before an international tribunal. One view is that it is a convenient device for foreign offices rather than an "imperative" rule controlling the jurisdiction of 147 international tribunals. The Permanent Court of International Justice applied the rule in its judgment of February 28, 1939, in the Panevezys-Saldutiskis Railway case 149 between Estonia and Lithuania. The four dissenting judges did not deny existence of the rule as an element of international law, although one of them (W.

PACIFIC SETTLEMENT 73

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PACIFIC SETTLEMENT 73 necessitate a specific reservation by parties if they wished to 160 maintain the rule of local remedies. Of the nature of the rule, Judge Manley O. Hudson, dissenting, said in part: It is a very important rule of international law that local remedies must have been exhausted without redress before a State may success- fully espouse a claim of its national against another state. It is not merely a matter of orderly conduct. It is a part of the substantive law as to international, i.e. If adequate redress for the injury is available to the per- son who suffered it, if such person has only to reach out to avail himself of such redress, there is no basis for a claim to be espoused by the State of which such person is a national.

74 THE INTERNATIONAL LAW STANDARD

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74 THE INTERNATIONAL LAW STANDARD One of the questions which has engaged the attention of com- missioners (for example, those who functioned under article XII of the Treaty of Washington, 1871) is that of whether a claimant must not only have gone to local courts, such as a prize court of first instance, but must actually have taken his case on appeal 154 as far as he could go in municipal courts. When respondent states have used the plea of nonexhaustion of local remedies, arbitrators have sometimes disposed of it by concluding that the very fact of submission has attested the will of the two govern- ments to arbitrate without having the process impeded by the 155 application of this jurisdiction-limiting rule. In the early case of The Sally (Hayes, Master) Commissioner William Pinkney argued vigorously that, while by the agreement the local judicial remedy was to be tried, there was no justification for holding the claimant to a long-delayed procedure of exhausting local reme- 156 dies, if he had not been guilty of laches. There is a question of whether exhaustion of local remedies by aliens, as provided by international law" (Report of the Delegation of the United States to the Ninth International Conference of American States, pp. 154 The tribunal referred to examined carefully each individual case in which appeal had not been taken and, while not dismissing them automati- cally, considered whether there were reasonable grounds for nonexhaustion of rights to appeal (Moore, International Arbitrations, III, 3152-3159). 156 Moore, International Arbitrations, III, 3108-3115; Henry Wheaton, Some Account of the Life, Writings and Speeches of William Pinkney (1826), pp.

PACIFIC SETTLEMENT 75

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PACIFIC SETTLEMENT 75 the standard of international responsibility for protection of for- eigners and their property is capable of application everywhere in exactly the same way. Arbitrators have frequently had to pass upon the adequacy of particular local remedies, but no clear-cut formulas seem to have evolved.158 As to the advisability or utility of relaxing the rule which re- quires exhaustion of local remedies, there has not been agree- ment. One view is that, since the rule is perhaps the best-estab- lished one applicable to the general subject of responsibility, and since it definitely serves to promote convenience through facil- itating the tasks of diplomats,159 no good purpose is served by a waiver of the right to use it as a defense. An opposing view is that it is desirable for states to make treaties in which they agree that no case shall be dismissed on the ground of the rule, since such provisions facilitate the redress of wrongs and are in har- mony with enlightened principles of comity in international relations.160 Although the former would seem to be the sounder view, it is not necessary to settle the question in examining some actual instances of treaty waivers. One of the occasions on which the United States agreed not to apply the rule of local remedies in the regular way had to do with the special agreement of August 18, 1910, for the arbitration of claims with Great Britain.161 In this instance, while the parties did not set aside the rule in express terms, they left it to the arbitrators to decide, as one of the equities of the case, the effect of any claimant's failure to seek redress through local courts. to claimants who had not exhausted their local remedies (Docket no. Briggs, "The Settlement of Mexican Claims Act of 1942," Amer.

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7 6 T H E INTERNATIONAL L A W STANDARD Following the agreement, the terms of submission, July 6, 1911, contained in their third article the following: The Arbitral Tribunal shall take into account as one of the equities of a claim to such extent as it shall consider just in allowing or dis- allowing a claim, in whole or in part, any failure on the part of the claimant to obtain satisfaction through legal remedies which are open to him or placed at his disposal, but no claim shall be disallowed or rejected by application of the general principle of international law that the legal remedies must be exhausted as a condition precedent to the validity of the claim.162 Arbitrators did not interpret and apply this authorization in such a w a y as to disregard completely the rules regarding ex- haustion of local remedies. In connection with Canadian claims for refunds of duties despite the statute of limitations applicable thereto, occasion arose for the arbitrators to consider the force 1 6 2 In a communication to the British ambassador dated March 4, 1911, the Department of State proposed, as one of the terms of submission, the rule that "the inclusion of a claim in any of the following Schedules shall operate as a bar to a plea in defense thereto that the legal remedies provided by municipal law have not been exhausted or that the claim is now pending before a municipal tribunal of competent jurisdiction." The British in tum suggested, as a substitute for this wording, the statement that "the Commis- sion shall take into account to such extent as they shall consider just any admission of liability by the Government against whom a claim is put forward or any failure on the part of claimant to obtain satisfaction through legal remedies which were open to him or which were placed at his disposal." The Department of State felt that this language would allow the commis- sion to disallow a claim by application of the general rule of international law, whereas the understanding had been that jurisdiction of the tribunal was not to be limited by application of the technical rules of international law except as such claims were barred by previous treaties. The desire was, "in order to expedite the settlement of a claim which might properly be prosecuted through the channels of national justice", to withdraw it from the jurisdiction of municipal courts and allow the international tribunal to decide it on its merits. Mere inclusion in the schedule, however, would not accom- plish this, as the commission "would be bound to apply the accepted rule." While insisting on the nonapplication of that general rule, the Department recognized that laches might become material in mitigation of an indemnity, and was willing to have the fact of failure to prosecute a claim in municipal courts presented to the tribunal as a matter of evidence, but requested provi- sion that no claim should be disallowed or rejected by application of the international law principle. Agreement was apparently reached through informal discussion. Department of State files 441.11A/86; 441.11A/92, nos.

PACIFIC SETTLEMENT 7 7

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PACIFIC SETTLEMENT 7 7 and effect of their instructions. British counsel in this case argued: In view of . . . paragraph 3 . . . of the terms of submission, we believe that this Tribunal must consider these claims in precisely the same manner as would a court of the United States have considered them had they been presented there within that time. In other words, we are not asking that these Canadian citizens be accorded any different rights from any one else except to this extent that when these claims were referred to this Tribunal the United States of America did waive one defense, and that was the defense of the statute of limitations.163 The agent for the United States replied to this, in part, as follows: The plea that legal remedies must be exhausted may, of course, be said to be a substantive- defense, because it is a well-known rule of international law that a claimant against a foreign country is not en- titled to the intervention of his own government unless he has ex- hausted his legal remedies in the country against which he makes claim. Nevertheless, I think the plea may also be spoken of as something of a technical plea. . . . The plea is not concerned with the broad, funda- mental question, with its various ramifications, whether a wrong was committed by the respondent government under international law. I will waive, for the time being, all contention that there is the strongest possible equity against these claimants, and I will proceed on the theory that the well-known rule with regard to the necessity for the exhaustion of legal remedies is completely wiped out by article 3 in terms of submission, which, according to the construction of both Governments, evidently is not entirely wiped out.164 In deciding this case the tribunal looked to the applicability of Section 2931 of the Revised Statutes, as interpreted by the United States Supreme Court in a decision some four decades before.165 It ruled that the plea of claimants' ignorance of United States law could not be sustained, and that the submission of the claims to the tribunal by the government of the United States constituted no implied waiver and did not operate to take them out from under the ordinary statutory provisions.16® 183 Nielsen's Report, p.

78 THE INTERNATIONAL LAW STANDARD

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78 THE INTERNATIONAL LAW STANDARD In the R. Roy case, adjudicated under the same agreement, the tribunal decided in a way to suggest that it did not attach great weight to the declaration, in the terms of submission, that "no claim shall be disallowed or rejected by application of the general principle . . . that the legal remedies must be exhausted as a condition precedent." The claim grew out of the seizure of a vessel of American registry which had been fishing in waters of Lake Huron allegedly within Canadian jurisdiction. If, on the question of fact, the place of arrest were not within the jurisdic- tion which the respondent state claimed, it would seem to be extraordinary to remit the claimants to the exhaustion of reme- dies within that jurisdiction. Even aside from this point, the criticism of the American agent, who considered that the com- mission had disposed of the case as if the general rule of inter- national law had not been eliminated by the arbitral agreement, 167 seems well founded. When setting up the General Claims Commission with Mexico under the convention of September 8, 1923, the United States again approved a plan of waiving rights under the rule concern- ing local remedies. Article V of the con- vention relating to general claims contained the following: The High Contracting Parties, being desirous of effecting an equi- table settlement of the claims of their respective citizens thereby afford- ing them just and adequate compensation for their losses or damages, agree that no claim shall be disallowed or rejected by the Commission by the application of the general principle of international law that the legal remedies must be exhausted as a condition precedent to 188 the validity or allowance of any claim.

PACIFIC SETTLEMENT 79

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PACIFIC SETTLEMENT 79 she intended to disavow her obligations. He made the point that President Adolfo de la Huerta, as well as President-elect Alvaro Obregon, had on repeated occasions declared publicly that Mexico would respect all rightful claims and would submit to the recognized principles of international law.169 It soon be- came apparent that resumption of diplomatic relations between the two countries was to be dependent upon some satisfactory arrangement concerning claims. Negotiations to this end went on in Mexico City between May 14 and August 15, 1923. In the course of these meetings Charles B. Warren, one of the Ameri- can negotiators, suggested that "when any loss or damage of any nature has been or may hereafter be suffered by any citizen of the United States, in whatever form his interest may be held, the General Claims Commission, to be created if this exchange of views and statements culminates in the resumption of diplo- matic relations between the two countries, should have jurisdic- tion, without limiting in any manner its general jurisdiction, to hear and determine all such claims and to fix the damages sus- tained and the compensation to be paid therefor."170 The con- versations brought out that approval by the United States of a recommendation of the commissioners would "depend upon the signing and ratification of a general claims convention creating a commission with the necessary jurisdiction."171 Negotiations look- ing to claims settlements were successful. In the general claims convention which the parties made, the waiver of the right to plead nonexhaustion of local remedies was on a reciprocal basis.

80 THE INTERNATIONAL LAW STANDARD

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80 THE INTERNATIONAL LAW STANDARD ber 20, 1910, and May 31, 1920) should "not be fixed according to the generally accepted rules and principles of international law," and that Mexico, "ex gratia," felt "morally bound to make 173 full indemnification." Similar provisions appeared in conventions concerning special claims (for damages growing out of revolutionary disturbances) 174 which Mexico made with major states in Europe. The cumu- lative effect has apparently accounted at least in part for some criticism which has been directed at the plan of assessing liability for damages on bases other than those of international 175 law. It is well known that the Special Claims Convention which Mexico made with the United States did not in its actual application lead to final settlement of all the claims, and that a 176 later arrangement superseded it. In the leading case before it which involved a Calvo clause (a device by which a government seeks to restrict foreigners contracting with it to local remedies), the Mexican-American General Claims Commission did not allow the waiver of the right to plead nonexhaustion of local remedies to become a matter of any great seriousness for the respondent state. A majority of the commissioners who considered the claim of the North American Dredging Company against Mexico concluded that they could give the benefits under the provision for waiver (in article V of the convention) only to those claims which the applicant state had properly presented and which would fall within the categories of claims (listed in article I of the con- 177 vention) for which the commission was competent. They found that the claim of the Dredging Company had not properly come to them under article I, the company not having done 173 On this plan of compensating ex gratia, see Antonio G6mez Robledo, The Bucareli Agreements and International Law (1940), p.

PACIFIC SETTLEMENT 81

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PACIFIC SETTLEMENT 81 178 anything in Mexico to secure satisfaction. Some two decades later, however, when the question was before a national claims commission (created to decide upon the validity of claims against money which Mexico has paid to the United States), the commission found that claims such as that of the Dredging 179 Company should not be barred. Three years after signing the General and Special Claims Conventions with Mexico, the United States signed the Re- 180 ciprocal Claims Convention of July 28, 1926, with Panama. It contained a provision concerning exhaustion of local remedies which was substantially the same as that of the General Claims Convention with Mexico. Two claims which were before the American-Panamanian commission reveal the use which arbitra- tors made of the parties' waiver of the right to plead non- exhaustion of local remedies. In the Perry claim, the commission said, of the provision in question, "This article is clear, it calls for no comment, but it may be noted that the High Contracting Parties express as the reason for this . . . their desire of effecting an equitable settlement of the claims of their respective citizens, a desire which may be considered significant as to the general trend of the intention of the Parties." The American agent thought this use of the article concerning the waiver, in relation to that concerning equity as a basis for awards, afforded a pos- sible explanation of the commission's advocacy of "broad con- 181 ceptions" rather than "narrow interpretations." A more direct application of the waiver clause was that in connection with the claim which the United States presented on 178 The opinion of Fred K.

82 THE INTERNATIONAL LAW STANDARD

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82 THE INTERNATIONAL LAW STANDARD behalf of Marguerite de Joly de Sabla. The cause of action grew out of a system for the disposal of real property in Panama. That state claimed that the system, as it had figured in this instance, was not "confiscatory by international standards," be- cause the claimant had an adequate remedy and losses were at- tributable to her not having availed herself of that remedy at the time the land was about to be sold or licensed. The contention of the United States was that the procedure to which Panama proposed to hold the claimant (in the matter of filing opposi- tion) was unnecessary, and that, if it were necessary, then "those laws as applied imposed so unreasonable a burden on private landowners as to fall below international standards." Although the claimant had sometimes successfully utilized the "opposi- tion procedure" which the laws of Panama permitted, the American agent argued that the remedy as provided by the law of Panama was not an adequate one. It has been seen that some judges in international adjudica- tions have taken the position that mere submission of a case to arbitration amounts to a waiver of the defense that local remedies 184 have not been exhausted. See also Whiteman, Damages in International Law, II, 1437.

PACIFIC SETTLEMENT 83

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PACIFIC SETTLEMENT 83 generally regarded as a valid position where states make an agree- ment to arbitrate a specific case, it would follow that where they contract for the arbitration of a great many claims falling within a designated period, there would be no implied waiver of the perfectly valid defense under international law. The motive for inserting a specific waiver, such as those in treaties noted above, may not always be the same. Political considerations may impel party states to assent to the relinquishment of the defense for a particular group of claims. There may be delicate issues which arise when an applicant state contends that a respondent state 186 has been guilty of denying justice to aliens, or perhaps essays 187 to show that there has in fact been no justice to exhaust. Whatever the occasion for the waiver, the rule of construing 188 stricto jure any waiver of rights and the usage which stresses 189 that express terms are required in order to alter the law sug- gest the need for definiteness where the parties wish to eliminate the common defense of nonexhaustion of local remedies. There have been but few treaty agreements in which the United States has assented to such a waiver.

84 THE INTERNATIONAL LAW STANDARD

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84 THE INTERNATIONAL LAW STANDARD 190 Certain Pecuniary Claims Arising Out of the Recent War. By this they reciprocally cancelled purely intergovernmental claims growing out of prosecution of the First World War, and, with specific exceptions made in the second article (relating especially to users of inventions, and salvage services), agreed that they would not present diplomatically or request international arbitra- tion in behalf of any national who had allegedly suffered loss or damage through the other government's war measures. Each of the contracting parties was to refer its nationals who claimed to have suffered such loss or damage to the appropriate judicial or administrative tribunal of the country against which the claim was alleged to lie, and the decision of such tribunal or of the appellate tribunal was to be regarded as the final settlement of the claims. By the final paragraph of the first article, the right of each Government to maintain in the future such position as it may deem appropriate with respect to the legality or illegality under international law of measures such as those giving rise to claims covered by the immediately preceding paragraph is fully reserved, it being specifically understood that the juridical position of neither Gov- ernment is prejudiced by the present agreement. The case for pressing the claims rested upon the fact that the United States had, while a neutral in the First World War, main- tained that some of the British acts affecting American nationals were contrary to international law, and that it should, in order to be consistent, either demand a diplomatic or arbitral settlement, 191 or itself assume liability to its nationals who held the claims. A suggestion of the tenuous nature of the international law in- volved appeared in a memorandum by the Assistant Secretary of State (Robert E.

PACIFIC SETTLEMENT 8 5

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PACIFIC SETTLEMENT 8 5 the 1927 agreement. After stating that the British would not con- cede the invalidity of their war measures or arbitrate the question, he added: It is extremely doubtful, even if an arbitration were feasible, whether any tribunal could settle the principles in the way in which we should like to have them determined. Most thoughtful students of international law are coming to feel that the rights or neutrals under these modern conditions must be defined, if at all, by some form of international legislation, rather than by tribunals bound by precedents laid down in circumstances which have little in common with those of the present day. It appears from a careful examination of the specific cases recorded in the Department's files that there are a few American claims (of which probably not more than eleven involve any substantial sums) which the Government of the United States on further examination might regard as meritorious, but which might not be adequately pro- vided for under the proposed agreement either because the claimants had already exhausted their legal remedies in the British courts, or be- cause no legal remedy was open to them. As to these cases the Govern- ment of the United States proposes to say to the British Government that it will regard the net amount saved to it, under the main provi- 192 sion of the agreement . . . as intended for their satisfaction. In the formal exchange which constituted the executive agree- ment, the government of the United States indicated that it re- garded the arrangement "not as a financial settlement but as the friendly composition of conflicting points of view which seemed to 193 lend themselves to no other form of adjustment." Subsequent to the agreement, the United States assumed liability for some of the claims which its nationals had submitted, and in which local 194 judicial recourse had been exhausted.

86 THE INTERNATIONAL LAW STANDARD

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86 THE INTERNATIONAL LAW STANDARD claimants are referred for remedies to national tribunals which have no option except to enforce the law which the legislature of their own country has passed (even if this be contrary to international law), the rule of resort to local remedies is carried 196 farther than it is in ordinary international jurisprudence. In this instance what the United States gave up was not an existing remedy (since there was under traditional international law no right to require another state to allow cases to go to arbitration, unless it had in a general or special agreement assented to this), but rather the right to seek a remedy through diplomatic or arbitral means. It is not unusual, under such conditions, for the state to assume liability to individuals for what it has asked them to give up in the national interest, as experience with many na- 189 tional or "domestic" claims commissions will illustrate. As to questions of international law which would have come up had the claims gone to arbitration, the handling of them in the executive agreement of 1927—so as not to prejudice the juridi- cal position of the American government—left the way open for the United States to pursue as a neutral in 1940 and 1941 a course notably different from that which it had followed from 197 1914 to 1917. After the Second World War, in their settlement of lend-lease, reciprocal aid, and intergovernmental claims, the United States and the United Kingdom included a waiver of all financial claims of one government against the other which "have arisen or may hereafter arise out of incidents or transactions oc- curring on or after September 3, 1939, and prior to September 2, 1945, connected with or incidental to the conduct of World 198 War II." 195 Borchard, "The Neutrality Claims against Great Britain," especially p. 196 See section 3, notes 139, 140, supra.

COMMERCE AND NAVIGATION

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C h a p t e r I I I COMMERCE AND NAVIGATION In view of the slow development of international law pertaining to the economic relations of states, it would be natural to expect that, in contrast to treaties concerning pacific settle- ment, those concerning commerce, navigation, and related mat- ters would make less use of the method of incorporating inter- national law by reference. Traditionally, while agreeing upon freedom of the seas to commerce carriers in time of peace, states have claimed the right, without infringing international law, to withhold commercial advantages to foreign nationals, vessels, and goods. The granting of trading privileges and advantages has, in 1 general, come through treaties, principally bilateral ones. Naviga- tion of "international" rivers, or even of important rivers that are not "international" in the sense in which that term has ordinarily been used, has also been the subject of treaty negotiations, in the course of which there has sometimes been invocation of already existing rights under customary law. At the outset it is apparent that, in the commercial field, standards other than that of international law—particularly most- favored-nation treatment and national treatment—have played more important parts, and that these standards have been applied to much more than exchange of goods. With the utilization of the "commercial" treaty for agreements on the entry of alien persons, protection of their personal and property rights, their engagement in various activities, assurances against their being discriminated against in such matters as internal taxation, and the securing of their exemption from military service, broader descriptive words 1 This does not overlook provisions in some multilateral treaties which relate to commercial rights, or commercial clauses in some other types of treaties such as peace treaties.

88 THE INTERNATIONAL LAW STANDARD

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88 THE INTERNATIONAL LAW STANDARD 2 came to be in order. Perhaps the term "general relations" would best convey the idea of the scope of subject matter to which modern commercial treaties relate. The frequent employment in treaties of this type, in the nineteenth century, of certain "stock" clauses has been regarded as making the latter, in a measure, "a substitute for norms of 3 universal international law." So far as the strictly commercial provisions are concerned, the coming into effect in 1948 of the General Agreement on Tariffs and Trade did not supersede the older type of bilateral instrument, although it has raised questions of harmonization of the two types of agreement in so far as they attempt to deal with the same kind of discriminatory practices. Parallel with the commercial treaty development referred to, there has been a development of international case law relating to the responsibility of any state for the protection of admitted aliens and their property in the admitting state's territory. Furthermore, it is apparent that in a new "era of multilateralism," with the establishment of rules in such instru- ments as the Articles of Agreement on the International Monetary Fund, the proposed Covenant on Human Rights, and possible agreements of the future on the subject of international freedom of information, the reach of such references may become sig- 4 nificantly greater. The present chapter will deal, first, with some "establishment" provisions in bilateral treaties in which the international law standard has been employed, then with references to international 2 B.

COMMERCE AND NAVIGATION 89

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COMMERCE AND NAVIGATION 89 law in certain agreements concerning river navigation, and, finally, with the part which international law played in opposition by the United States to the conclusion of certain treaties relating to the slave trade. Residence and Engagement in Activities It has been seen that rules of customary international law applicable to the treatment of ordinary nationals of foreign states have sometimes received treaty emphasis where there has been, in 5 one of the party states, an earlier system of extraterritoriality. Concern over the continuing legal effect of such an earlier system was a factor in the negotiation of the Treaty of Establishment and Sojourn which the United States signed with Turkey on October 28, 1931.® Both this and the manner in which the inter- national law standard was utilized in connection with another standard (that of most-favored-nation treatment) seem to justify selection of this agreement as illustrative of a method. The legal work pertaining to the treaty was complicated by reason of the Turkish Cabinet's desire to terminate all vestiges 7 of the Turkish-American Treaty of May 7, 1830, and the mutual desire of the parties to retain for Turkish merchants benefits under section 3 (6) of the United States Immigration Act of 1924, which permitted liberal rights of entry to and sojourn in the United States to be given to traders from countries which had 8 "existing" commercial treaties with this country. The first of these desires was reflected in the Turkish proposal to have in the preamble of the new treaty, concerning the conditions of establish- ment for nationals and companies of each party in the territory of the other, the words, "having in mind that there exist between 5 Chapter I, section 4, supra. 8 This part of the Immigration Statute was subsequently revised (8 U.S.C. [1948] 203).

90 THE INTERNATIONAL LAW STANDARD

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90 THE INTERNATIONAL LAW STANDARD 9 the two countries no provisions regulating the said conditions." This was unacceptable to the Department of State, since a modus vivendi of February 17, 1927, between Turkey and the United States, which was still in force, did in fact contain provisions of the kind referred to; aside from this, the Department was unwill- ing to accept wording which might imply that the Capitulations in Turkey had been abolished as of the date (October 1, 1914) on which they were declared by the Turks to have been 10 abolished. For the language which the Turkish negotiators had proposed, the American representatives received authorization to substitute the words, "being desirious of prescribing, in accordance with modern international law, the conditions under which the na- tionals and corporations of each of the High Contracting Parties may settle and carry on business in the territory of the other Party, and with a view to regulating accordingly questions relating to 11 jurisdiction and fiscal charges." Alternatively, the American am- bassador was authorized to accept wording to the effect that the new treaty would supersede, as between the parties (thus exclud- ing application to territories which had broken away from the Ottoman Empire), all treaties previously concluded between the United States and that Empire. On their part, the Turkish negoti- ators countered with a proposal for preambular language whereby the parties would set forth, "taking note of the fact (constatant que) that the conditions under which the nationals and corpora- tions of each of the high contracting parties may settle and carry on their activities in the territory of the other party should be pre- scribed in accordance with modern international law and that questions relating to judicial competence and fiscal charges should manifestly be regulated by this same principle," that they had "de- 12 cided to conclude a treaty to this effect and purpose." 9 For. It was felt that such an implication might affect claims of United States nationals which had arisen since 1914. The Department of State was willing to regard the phrase "in accordance with modern international law" as disposing of all Capitulatory provisions in the treaty of 1830 but as not disturbing the treaty-merchant privileges which Turkish merchants had in the United States by reason of article I of that treaty.

COMMERCE AND NAVIGATION 9 1

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COMMERCE AND NAVIGATION 9 1 In the subsequent negotiations there was a suggestion from the Turkish government that the American ambassador might, in a letter to the Turkish minister of foreign affairs, say that the gov- ernment of the United States was "fully alive to the changes that have taken place in Turkey," but without adding after these words the phrase, "since the establishment of the Turkish Republic." ( T h e United States representatives had previously suggested the inclusion of the latter phrase, having in mind that the "changes" mentioned might, without the limiting phrase, be understood to relate to changes that had occurred since 1 9 1 4 . ) 1 3 The Depart- ment of State agreed to the writing of such a letter, and to the inclusion therein of a statement that the treaty was negotiated on this basis. The preamble of the treaty, as actually signed, followed substantially the language that had been proposed concerning "modern international law,"1 4 but the standard of treatment specified in the body of the instrument was most-favored-nation treatment.15 13 Ibid., 1931, II, 1038, 1039. 14 The preamble referred to the parties as being "desirous of prescribing, in accordance with modern international law, the conditions under which the nationals and corporations of each of the High Contracting Parties may settle and carry on business in the territory of the other Party, and with a view to regulating accordingly questions relating to jurisdiction and fiscal charges." For statement as to the manner in which it had been proposed to refer to international law in a commercial treaty (between the United States and Turkey) which was under negotiation some years before this time (but not concluded), see infra, note 23. 15 Writers on international law, as well as on international economic rela- tions, have sometimes referred to most-favored-nation provision as parts of international law. Snyder, The Most-Favored- Nation Clause (1948), pp. The treaty was that of Amity, Commerce and Navigation with Tonga, signed October 2, 1886 (25 Stat.

92 THE INTERNATIONAL LAW STANDARD

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92 THE INTERNATIONAL LAW STANDARD Resourcefulness of the negotiators had surmounted a difficulty that was in part psychological as well as legal. The preambular reference to international law at least served the purpose of easing the parties over a drafting difficulty and, while avoiding sweeping provisions that might have undermined certain existing rights, of making clear that, as between the parties and for the purpose of their treaty relations, extraterritoriality was a thing of the past. b. Property-Protection Provisions When, shortly after the First World War, the United States began to negotiate a new series of commercial treaties (called treaties of friendship, commerce, and consular rights, since pro- visions concerning consular rights and functions were included until as late as 1938), there appeared in the standard draft a reference to international law in connection with protection of the persons and property of treaty aliens. In the treaty signed 16 with Germany on December 8, 1923, and in twelve other treaties signed between that date and 1938, the following para- graph appears: The nationals of each High Contracting Party shall receive within the territories of the other, upon submitting to conditions imposed upon its nationals, the most constant protection for their persons and prop- erty, and shall enjoy in this respect that degree of protection that is required by international law. Their property shall not be taken with- out due process of law and without payment of just compensation. A slight variance in the formula occurs in the treaty with Siam, signed November 13,1937, there being added to the first sentence, Special Agent to Tonga, under date of July 23, 1886 (Specials Missions, September 11, 1882-August 31, 1886).

COMMERCE AND NAVIGATION 93

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COMMERCE AND NAVIGATION 93 in a paragraph comparable to that quoted above, a statement that nationals of either party within the territory of the other "shall enjoy in this respect the same rights or privileges as are or may be granted to nationals of the State of residence"; this is followed by a phrase, similar to that in the other treaties, concerning sub- mission to the conditions imposed upon nationals. Paragraph 4 of the Final Protocol accompanying the treaty with Siam records the parties' understanding "that the payment of just compensa- tion provided for in Article I, paragraph 3, shall be determined by due process of law, without prejudice to redress, if any, ac- 17 cording to international law." Several new commercial treaties which the United States has negotiated since the cessation of hostilities in the Second World War have contained somewhat similar, but not identical, language. Article VI of the Treaty of Friendship, Commerce and 18 Navigation with China, signed November 4, 1946, referred, as had the treaties of the interwar period, to "the most constant pro- tection and security" to be accorded nationals of one party in the other party's territory; but for the words "that degree of protection that is required by international law" are substituted the words "the full protection and security required by inter- national law." A separate paragraph provides for "due process of law" and the "prompt payment of just and effective compensation" in the event of property expropriation. Other language applied specifically to property the language concerning property pro- tection and committed the parties to allow exchange withdrawal privileges to treaty aliens in the event of expropriation of the latters' property. The treaty of friendship, commerce, and navigation which the United States signed with Italy on February 2,1948, follows fairly closely the language used in the treaty with China concerning the 19 international law standard of protection. That with Ireland, signed January 21, 1950, provides that "property of nationals and companies of either Party shall receive the most constant pro- tection and security within the territories of the other Party, in no case less than that required by international law." In the same paragraph there is provision for prompt payment of just and 17 18 19 53 Stat.

94 THE INTERNATIONAL LAW STANDARD

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94 THE INTERNATIONAL LAW STANDARD effective compensation and for exchange withdrawal privileges for expropriated treaty aliens. There is also (in article V) a pro- vision for "equitable" treatment by each party of the capital of the 20 nationals and companies of the other party. The treaty of friendship, commerce, and economic development, signed with Uruguay on November 23, 1949, does not contain a specific reference to the international law standard in connection with protection, but does provide for "the most constant protection and security" and specifies that "the taking of property legally acquired by the nationals and companies of either Party shall be subject to procedures and conditions no less favorable than those legally applicable in the case of the taking of property of na- tionals of such other Party." Any appropriation is to be made "in accordance with the applicable laws, which shall at least assure the payment of just compensation in a prompt, adequate and effective manner." There is, as in the Irish treaty, a separate pro- 21 vision for "equitable" treatment. The record of negotiations of certain of the commercial treaties modeled upon that signed with Germany in 1923, including some negotiations that did not result in perfected agreements, throws some light upon the purpose and intended legal effect of the wording which provides for the international law standard. Furthermore, to attempt to determine the significance of the use of the standard as specifically provided for in this one part of the treaty plan is not to overlook that there may be, in other parts of that plan (as, possibly, in connection with pro- visions on access to courts), what would amount to prescriptions of international law, but without mentions of that law expressis verbis. As to the wording wherein there is a direct reference to this standard, questions arise with respect to (1) consistency with constitutional arrangements of prospective parties, (2) relation to other standards, particularly that of national treatment and 20 T.I.A.S.

local law, and (3) connection between the wording under con-

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C O M M E R C E A N D N A V I G A T I O N 9 5 local law, and (3) connection between the wording under con- sideration and that of the immediately following sentence, which has to do with "due process" and "just compensation" in the event of expropriation of property. Several of the countries with which the United States made commercial treaties in the third decade of the twentieth century, notably Germany, Austria, Estonia, and Latvia, had national con- stitutions providing that the generally recognized rules of inter- national law should be applied as parts of the respective national laws. The effect of such constitutional provisions has received at- 22 tention of able publicists and will not be the subject of extended discussion here. It will suffice to point out that the effect of an "incorporative" clause in a national constitution might be to pro- vide an instruction for municipal court judges or administrative officials, but it would not be to create a new international obliga- tion for a state vis-ä-vis other states. Constitutional provisions re- ferring to international law do not appear to have entered into the treaty discussions as much as have those which related specifically to expropriation of property. National treatment, or, as it was sometimes called, the prin- ciple of "parity," naturally came in for attention in various negotia- tions, in view of the mention, in the same sentence in which the international law standard is provided for, of submission by treaty aliens to conditions imposed upon nationals.

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96 THE INTERNATIONAL LAW STANDARD course of consideration of this proposed modification, it was pointed out, in a memorandum circulated in the State Depart- ment, that under Czechoslovak law nationals of that state were not entitled to compensation from their government for damages sustained to their property during the recent war, and that ac- ceptance by the United States of such a modification would tie the hands of this country with respect to similar claims of Ameri- 23 can citizens against Czechoslovakia. A draft treaty which Latvia had proposed to the United States in 1922 did not specify either national treatment or international law as a standard, but provided that "the citizens of each of the High Contracting Parties shall, upon compliance with the laws of the country, enjoy constant and complete protection and security 24 in regard both to themselves and their property." As finally con- cluded, however, the treaty contained provision for the inter- national law standard in the same words which had been used in the treaty with Germany. In the State Department's comment on this wording, as sent to chiefs of American missions in a number 23Department of State file 711.60f 2/26 (National Archives). National treatment along with international usages and practice had been prescribed in a proposed treaty with Turkey in 1923. By provisions of the second article, "The nationals of each of the high contracting parties in the territories of the other shall in regard to their persons and property be received and treated in accordance with the general usages and practices of modem civilized nations. They shall enjoy the most complete and constant protection for their persons, property rights and interests and upon sub- mitting themselves to the applicable laws and regulations of the country, they shall enjoy equality of treatment with the nationals thereof and with the nationals of the most favored nation in regard to freedom of access to the courts of justice and liberty of religious belief and worship; and the acquisi- tion, possession and disposition of movable property." A Turkish counterdraft proposed a rule to apply to nationals of one party in the territory of the other: "They shall, under the conditions imposed upon the nationals of the country, enjoy the most constant protection and security for their property and persons, in conformity with international common law." Earlier in the negotiations, the Secretary of State, in a telegram to the American mission, said that what the United States proposed in this part of the draft did not call for "any grant in favor of an alien resident which a modern state worthy of complete recognition as a member of the family of nations should with- hold" (Department of State files 711.672/70, 711.672/87, 711.672/92 [Na- tional Archives]).

COMMERCE AND NAVIGATION 97

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COMMERCE AND NAVIGATION 97 of countries, such as Norway, Honduras, El Salvador, Latvia, and Estonia, the following was included: It is believed that it may prove highly useful to acknowledge that the test of the propriety of the treatment due the resident alien is that accorded by international law, rather than by the standards fixed by the state of residence in dealing with its own nationals. The United States finds it constantly necessary to invoke the international law test in dealing with countries whose treatment of their own nationals is 25 arbitrary and unjust. While the treaty with Honduras was before the National Con- gress of that country for approval, it was reported that certain anti-administration newspapers in Honduras had expressed ob- jection through editorials to the idea of American citizens being guaranteed "a measure of safety and security not vouchsafed to 28 Honduran citizens." From the American comment on the wording of the draft treaties, it would appear that, by including in the same sentence which refers to the international law standard the words, "upon submitting to conditions imposed upon its nationals," the United States government had no thought of reducing the degree of protection sought to be assured in the reference to international law. The presumption would be that the conditions imposed upon nationals of the local state would not be inconsistent with that law. A different conclusion would mean that international law would apply unless the local law (nondiscriminatory as between nationals and aliens) directed otherwise. It remains to consider the separate sentence in the treaties which has to do with expropriation of property, particularly in relation to the provision for the international law standard, but also in relation to constitutions and statutes of the respective parties.

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98 THE INTERNATIONAL LAW STANDARD does not require a state which takes the property of resident aliens to comply with reasonable standards of procedure and to make adequate compensation. The commercial treaty negotiations of the interwar period do not seem to have gone into this point so much as into the consistency of a rule of due process and just compensation with existing national law. A letter from the solicitor of the Department of State concern- ing the negotiations with Germany noted as "what was perhaps the major German proposal" one that would have changed the part of the draft treaty having to do with due process and just compensation. The German ambassador had stated that his coun- try's constitution permitted the taking of property without the payment of just compensation, and that the treaty provision as proposed might be violative of the fundamental law. While in- timating that it was unlikely that the German legislature would avail itself of its constitutional right to take property of aliens without payment of just compensation, the ambassador drew at- tention to a strong feeling in his country against interference with the constitution. The Department of State, in reply, pointed out that the sentence in the text did not contemplate a yielding of anything which the German constitution forbade and that it was in no sense a violation of that document; what Germany would do, if she accepted the treaty rule, would be to agree not to exercise a constitutional right; if after acceptance of the treaty the constitutional right should be exercised in relation to Ameri- 27 can citizens, it would lead to a protest.

COMMERCE AND NAVIGATION 99

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COMMERCE AND NAVIGATION 99 owner and that the procedure defined in article 24 of the Estonian constitution seemed to relate to "due process of law" as understood in the United States.28 In the negotiations with Hungary and in those with Poland, the question was raised of the effect of the treaty language upon the claims that might be made by third states. The Hungarian minis- ter said: My Government feels confident that no controversy will ever arise as to the interpretation of the term "just compensation" . . . as far as the United States and Hungary are concerned. My Government is un- able, however, to view with the same assurance questions that might arise with respect to the property of nationals of other countries which might avail themselves, by virtue of the most favored nation . . . clause, of the provisions of the said paragraph. In order to forestall the possibility of this complication arising, it would be desirable to have the following interpretation embodied in the final protocol: "Whenever the property of nationals of one High Contracting Party within the terri- tories of the other shall be expropriated after due process of law, the just amount of compensation to be paid shall be determined in accord- ance with the principle of equal treatment with the nationals of the latter party."29 As finally concluded, the treaty with Hungary contained, on the point under discussion, the wording which the United States had proposed. More than two decades later, following the politi- cal changes which occurred in Hungary after the Second World War, the treaty language in question was to be the subject of a strong protest from the United States because of the application to American-owned property of Hungary's Nationalization Law of December 28, 1949. The diplomatic note asserted the responsi- bility of Hungary for the payment of adequate and effective compensation to American owners affected, and drew attention to the fact that interests of the Soviet Union had been exempted from nationalization, this being a discrimination on Hungary's part in clear violation of the treaty.30 In the case of the commercial treaty with Poland, signed in 28 Department of State file 711.6Ш 2 / 8 (National Archives).

1931, the negotiations extended over a long period of time. An

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1 0 0 THE INTERNATIONAL LAW STANDARD 1931, the negotiations extended over a long period of time. An early draft (1921) contained a sentence on due process and compensation which was said to have been an alteration and ex- tension of Article XXII of the then existing commercial treaty 31 with Italy. After the signing of the treaty with Germany and the evolving of the formula which came to be the standard in all of the full-length commercial treaties of the United States in the interwar period, the discussions with Poland were on the basis of this formula. In conversations of February 1927, a Polish spokesman suggested that the expression "just compensation" was vague, and that this be remedied by omitting "just" and adding at the end of the sentence the words, "with the payment of compensation on equal terms as that of nationals of the coun- 32 try." This emendation was found to be unacceptable to the United States. A memorandum of the solicitor of the Department of State, dated June 17, 1927, took the position that "just compensation" was no more indefinite than was "due process of law" in the same sentence or "that degree of protection that is required by international law" in the following sentence. In the very nature of the subject, the memorandum submitted, definite- ness could not be obtained and indefmiteness was no objection; the object of the paragraph in the draft treaty was to assure to nationals of either party in the other's territory protection in the degree defined by international law.

COMMERCE AND NAVIGATION 101

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COMMERCE AND NAVIGATION 101 the compensation awarded by the court or other agency having jurisdiction was not "just." They then offered the suggestion that if the word "due" were substituted for "just," it would be accept- able.33 As to the latter suggestion, the United States took the position that the word "due" would be less satisfactory than "just," since the latter expressed a little more definitely and pre- cisely the meaning which it was sought to convey.34 Eventually, Poland agreed to the language which had been proposed in the American draft. While the complete records of commercial treaty negotiations to which the United States was a party in the latter part of the interwar period and in the subsequent period are not yet ac- cessible, it is possible to conclude, on the basis of material already referred to, that there has been a close connection between the property-protection provisions which make direct reference to international law and the provision, in a separate sentence but in the same context, regarding "due process" and "just compensa- tion." In this connection it would also appear to be clear that the "due process" is not that which is due by the Constitution of the United States or by that of any other state party to such a treaty provision, but the "due process" which is required by international law, since a standard as set by the basic law of one party to a treaty would not be controlling upon the other party and would not necessarily reflect international law.35 Whereas treaties of the interwar period provided, as has been seen, for "just" compensa- tion in the event of expropriation, three of the commercial treaties which the United States has signed (with China, Italy, and Ireland, respectively) since the cessation of hostilities in the Second World War provide for "prompt" payment of "just and effective" compensation, while that with Uruguay refers to ap- 33Department of State file 711.60с2/37й (National Archives). ** Department of State file 711.60c2/41 (note from the Secretary of State to the Polish charge ad interim, dated April 3, 1929; National Archives). 85 Cf. a statement by a witness in Hearings before the Committee on Patents, House of Representatives, 71st Cong., 1st Sess., on H. The applicability of the property-protection provisions to companies as well as natural persons is outside the scope of the present discussion; it has been dealt with briefly in Robert R. Wilson, "Property-Protection Provisions in United States Commercial Treaties."

102 THE INTERNATIONAL LAW STANDARD

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102 THE INTERNATIONAL LAW STANDARD plicable laws "which shall at least assure the payment of just 36 compensation in a prompt, adequate and effective manner." The treaty with Uruguay refers, in a national-treatment context, to "procedures and conditions" in connection with the taking of property; that with Ireland makes no specific reference to "proc- ess" or "procedures," but makes clear that in no case shall less than national and most-favored-nation treatment be accorded. In general, the treaties since the close of hostilities in the Second World War have tended to contain provisions (for example, those concerning exchange withdrawal after expropriation, national treatment in matters relating to the taking of privately owned and controlled enterprises into public ownership and under pub- lic control) responsive to new conditions and new needs in con- nection with investment abroad. It remains to note the reality and the utility of the international law standard concerning compensation for expropriation of alien-owned property, as that standard is provided for in all but one of the treaties referred to in this subsection. Even without express reference to the law, it would still be true, as is in fact stated in the Irish-American commercial treaty, that "treaty commitments are to be construed in the light of international 37 law." A considerable body of opinion has developed in sup- port of the view that there is, apart from treaties, no right of private property (in the sense of ownership, free from uncom- pensated expropriation, of that which has been acquired by for- eigners, in accordance with existing municipal law) under in- 38 ternational law. Some publicists, in the face of the socialistic movements of recent decades, have sought to make a distinction between particular and general, or programmatic, expropria- 89 tions. Dunn, "International Law and Private Rights," Columbia Law Review, XXVIII (1928), 166, 180; Seymour J.

COMMERCE AND NAVIGATION 1 0 3

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COMMERCE AND NAVIGATION 1 0 3 national treatment is the maximum which foreigners can, as of right, demand.40 The weight of authority still seems to support the view, how- ever, that there is in time of peace an international legal obliga- tion, apart from treaties or other specific agreements, binding a state to respect the property rights that aliens have acquired within its territory in accordance with existing and applicable law.41 Nor has the view prevailed that no state can be legally held to accord to foreigners better treatment than that which its nationals receive. Instead, there has developed, particularly in recent decades, the concept of a "minimum standard of jus- tice" to afford a guide for the legally required treatment of aliens.42 As is well known, the United States in particular has held to ernment," World Politics, II (1950), 482, 509-510. See also Oppenheim, International Law, 7th ed., I (1948), 318, to the effect that, where funda- mental changes in the political system and economic structure of a state, or far-reaching social reforms, entail interference on a large scale with private property, neither the principle of absolute respect for alien private property nor rigid equality with dispossessed nationals offers a satisfactory solution, and that, in such cases, it is probable that partial compensation will offer a solution consistent with legal principle. 4 1 Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States (1945 ed.), I, 710-722; Oppenheim, Inter- national Law, 7th ed., I, 316, 627; Georges Kaeckenbeeck, "La Protection internationale des droits acquis," Recueil des cows, LIX (1937), 321—419; Alexander Fachiri, "Expropriation and International Law," Brit. Law, VI (1925), 159-171, and "International Law and the Property of Aliens," ibid., X (1929), 32-50; Freeman, International Responsibility, pp. Among the instances commonly cited in illustration of the rule are the settlements in the Sicilian Sulphur Monopoly case (28 Brit, and For.

1 0 4 THE INTERNATIONAL LAW STANDARD

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1 0 4 THE INTERNATIONAL LAW STANDARD the view that the international law standard may, in a given case, mean something better than national treatment.43 A somewhat different question is that of the utility of the in- ternational law standard as applied in property-protection clauses. Its reach extends to both adjective and substantive law. Parties agreeing in advance to what international law requires retain, of course, the rights which they have under the well-established rule with respect to exhaustion of local remedies.44 On the other hand, the concept of denial of justice does not seem to have be- come so limitative, and the idea that international remedies can be legally excluded through the conclusion of Calvo clauses does not seem to have become so widely accepted, that references to international law in this subject matter have become futile or ineffectual.45 Difficulties are to be expected in applying the gen- eral principle of law in particular situations, in determining what constitutes a "taking," in determining "just" valuations, and in passing upon procedural requirements under local law. Ninth International Conference of American States, Department of State Publication 3263, pp. 45 On limitations upon the capacity of private persons to contract away international legal remedies, see K. Lipstein, "The Place of the Calvo Clause in International Law," Brit.

C O M M E R C E AND NAVIGATION 105

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C O M M E R C E AND NAVIGATION 105 is presumably offset to some extent by the provision (to be found in each of the commercial treaties which the United States has signed in the period following World War II) whereby final, authoritative interpretations can be sought from the International Court of Justice. On the other hand, the prevailing lack of uni- versal agreement on what the international law standard has come to require may furnish, as it appears already to have fur- nished, occasion for inserting, in establishment provisions of trea- ties, more precise rules. NAVIGATION OF INTERNATIONAL RIVEBS The principle of free navigation of international waterways figured in early American diplomacy concerning navigation of the lower Mississippi River. In the course of the development, strongly sectional factors and pressing considerations of economic need, as well as questions of public law and treaties, came in for attention. There was, at one time, evidence of some willingness to make a concession on the principal legal point, but this was met by strong opposition from representatives of the region whose spe- cial interest lay in securing the navigation rights. By the peace treaty of 1763 Great Britain had obtained for her subjects the right of free navigation of the lower Mississippi River.4® After they ceased to be British subjects, some of the inhabitants of the new republic were especially concerned about the possession of such navigation rights.

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106 THE INTERNATIONAL LAW STANDARD with both France and Spain. After Floridablanca came to power in the latter country on February 15, 1777, the Mississippi navi- gation question was linked up with the possibility of securing po- litical recognition from the Spanish government and obtaining an alliance with that country as well as with France. It could be surmised that, with the movement of settlers toward the west, the United States would probably claim the east bank of the river, and that Americans would come into contact with and 47 jeopardize Spain's possessions west of the river. At the beginning of the Franco-American alliance, Charles Gravier, Comte de Vergennes apparently supported claims of the Americans to free navigation of the Mississippi to the sea, but he did not rigidly adhere to this position, his concern being to bring Spain into the war and keep the allies which France al- 48 ready had in the war against England. As for the Americans, their claims found expression in reports to Congress, in instruc- tions by Congress, and in the work of American negotiators, particularly John Jay and Thomas Pinckney. In the beginning it was not always made clear whether the claims were to naviga- tion of all of the lower river or navigation merely to the point on the river which marked the southern boundary of the United States.

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COMMERCE AND NAVIGATION 107 of Great Britain and the Citizens of the United States."49 There- after the Americans were able to add to their arguments from usage and from vital interest the contention that theirs were the rights of a successor state. The theory that the peace treaty was one of partition, which allowed American citizens and Brit- ish subjects to continue in the enjoyment of rights (such as those in the northern fisheries and that of navigating the lower Missis- sippi in accordance with the 1763 treaty), furnished additional ground for argument. According to this, the inhabitants of the western country, as citizens of the new republic, were entitled to rights no less than those which they had had while subjects of Great Britain.50 Long before 1783, however, the American claim had received official formulation. That the claim rested in part upon general principle, independently of any treaties, appears from the first comprehensive report on the subject to Congress. This report, prepared by a committee which included James Madison, re- ceived Congressional approval on October 17, 1780, as the in- struction to be sent to American representatives at Versailles and Madrid. After reciting that the United States had an indisputable right to the east bank of the Mississippi for a very great distance, the report continued: The usage of nations . . . seems in such cases to have given those holding the mouth or lower parts of ariverno right against those above them, except the right of imposing a moderate toll, and that on the equitable supposition, that such toll is due for the expense and trouble the former may have been put to. "An innocent passage (says Vattel) is due to all nations with whom a state is at peace; and this duty com- 4 9 Miller, Treaties, II, 155.

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108 THE INTERNATIONAL LAW STANDARD prehends troops equally with individuals." If a right to a passage by land through other countries may be claimed for troops, which are em- ployed in the destruction of mankind, how much more may a passage 51 by water be claimed for commerce, which is beneficial to all nations. The subsequent handling of the matter illustrated the tendency to mix appeals to principle with demands motivated by economic interests. On October 13, 1779, Congress had, by a divided vote, rejected a proposal that American representatives be privately instructed to recede from their claims to free navigation below the thirty-first degree of north latitude, on condition of the grant- ing of a free port, if the obtaining of full navigation rights should prove an insurmountable bar to the proposed treaties of amity 52 and commerce. In 1781 Congress did, by a majority vote, re- cede from the strong position that it had previously taken, but official notification of this action did not reach Jay in Madrid until five months later, and Spain did not accept the bases of a treaty which Jay suggested on condition of immediate acceptance of the treaty and of an alliance. On Franklin's advice, Jay left 53 Madrid in June 1782. The next crucial phase of the effort for a treaty arrangement with Spain came toward the end of the Confederation period, after the arrival in the United States of Diego de Gardoqui, the Spanish envoy, in May 1785, a week after Jay had been elected Secretary for Foreign Affairs.

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COMMERCE AND NAVIGATION 109 1786 on the progress of his conversations with Gardoqui, he said: "Courts never admit the force of any reasoning or argu- ments but such as apply in their favor . . . even if our right to that Navigation, or to anything else, was expressly declared in Holy Writ, we should be able to provide for the enjoyment of it no otherwise than by being in capacity to repel force by 54 force." In the same report he recommended that the United States agree to forbear, for a period of twenty-five or thirty years, to use the navigation of the Mississippi below American terri- tories to the ocean. Members of Congress disagreed on the wis- dom of such a policy. Charles Pinckney resolutely opposed 55 modifications of the Secretary's instructions. When at length delegates of a bare majority of the states favored an authoriza- tion to the negotiator to deviate from his original instructions, southerners challenged the validity of such an authorization unless it should have the support of at least nine states. A reiteration of basic principle to buttress American claims to navigation rights came in the form of a resolution which dele- gates of North Carolina presented to Congress in September 1788. This declared that the clear, unalienable claim of the United States to this navigation was not only supported by the "express stipulation of treaties" but by the "great law of na- 68 ture." In language somewhat less vague, Congress resolved M Journals of the Continental Congress, XXXI, 4ξ0.

that the free navigation demanded was "a clear and essential

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110 THE INTERNATIONAL L A W STANDARD that the free navigation demanded was "a clear and essential right of the United States" which should "be considered and supported as such."59 Reporting to the President on March 18, 1792, Secretary of State Jefferson rested the American claim not merely upon the treaty of 1763 and that with Great Britain of 1783, but upon the "law of nature and nations" which was "still broader and more unquestionable" than either of the other bases. Continuing, he said: The ocean is free to all men, and their rivers to all their inhabitants . . . Accordingly, in all tracts of country united under the same politi- cal society, we find this natural right universally acknowledged and protected by laying the navigable rivers open to all their inhabitants. When their rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the judgment of mankind. . . The Roman law, which, like other municipal laws, placed the navigation of their rivers on the footing of nature, as to their own citizens, by declaring them public . . . de- clared also that the right to the use of the shores was incident to that of the water.60 Final settlement of the question in the way the Americans desired became more probable with changed conditions in Eu- rope which caused the Spanish court to fear an Anglo-American combination that might constitute a serious threat to Spanish interests. When negotiations were resumed in Madrid, Thomas Pinckney, envoy extraordinary for these discussions, arrived in the Spanish capital on June 28, 1795, with instructions which cautioned him against assenting to the free navigation of the Mississippi as a grant, or privilege, rather than a right.61 His task was somewhat more delicate by reason of the fact that in the 1783 treaty with Great Britain the United States had already proceeded upon the assumption of the navigation rights, in speci- fying that they were to be free to citizens of the United States right to its navigation was deducible from the laws of nature" (H.

and subjects of Great Britain. The American minister stood out

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COMMERCE AND NAVIGATION 111 and subjects of Great Britain. The American minister stood out firmly for a right of deposit on the lower Mississippi, to the extent of asking for his passports when Godoy, the Spanish negotiator, was disinclined to yield.62 The treaty with Spain was signed October 27, 1795. By article XXII the Spanish king agreed to permit citizens of the United States for three years to deposit goods at New Orleans, with the proviso that permission would either be continued after the expiration of that time or another part of the banks of the river would be assigned for an equivalent establishment. The naviga- tion question, which for nearly twenty years had been a major controversial item between the two countries, was the subject of the fourth article, which contained the following: It is likewise agreed that the Western boundary of the United States which separates them from the Spanish Colony of Louisiana, is in the middle of the channel or bed of the River Mississippi from the North- ern boundary of the said States to the completion of the thirty-first de- gree of latitude North of the Equator; and his Catholic Majesty has likewise agreed that the navigation of the said River in its whole breadth from its source to the Ocean shall be free only to his Subjects, and the citizens of the United States, unless he should extend this privilege to the Subjects of other Powers by special convention.63 Criticism of the final settlement on this point has stressed that it actually gave up what had been claimed as a right and ac- cepted a grant, that it was in contravention of the 1783 treaty of peace with Great Britain, and that it was in effect a "stultifica- tion" of the argument on which the Americans had originally based their claim to navigation of the river.64 As to the second of these suggestions, it is clear that the United States and Spain could not legally reduce by treaty the preäxisting conventional rights of Great Britain, a third state.65 The form of statement of the fourth article, however, would seem to put upon Spain the burden of reconciling this 1795 treaty with Britisb treaty rights 82 Ibid., p. 65 See, on the general question of law, R. Roxburgh, International Con- ventions and Third States (1917), and Carl-Heinz Winkler, Verträge zu Gunsten und zu Lasten Dritter im Völkerrecht (1932).

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112 THE INTERNATIONAL LAW STANDARD acquired in 1763. One view has been that those rights constituted a servitude in favor of British subjects which was not disturbed by the 1783 peace treaty. This is hardly tenable, for, as the arbi- tral tribunal brought out in the North Atlantic Coast Fisheries case (1910), British statesmen were not familiar with the con- cept of international servitude even as late as 1818, and no 6 English publicist employed the term before that date." There is some doubt whether, even after the term became common, it could be properly applied to the navigation rights which the 67 British gained in 1763. The headwaters of the river not being within British jurisdiction, there was a question of whether the Mississippi would fall within the definition of an "international" river, so far as the British were concerned after 1783. Reid, International Servi- tudes in Law and Practice ( 1 9 3 2 ) , p. Reeves, "The Influence of the Law of Nature upon International Law in the United States," Atner.

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COMMERCE AND NAVIGATION 113 ground for its claim. An arbitral tribunal in 1903, after review- ing authorities on the question of an upper state's right to naviga- tion of a river where a lower state had jurisdiction over both banks of the stream, made the following statement: It seems difficult upon principle to support the right to the free use of rivers as a right stricti juris. While this is not expressly admitted, it is tacitly conceded by nearly all the advocates. They define this right of use as an "imperfect right." The term is an anomaly.70 The step taken at the Congress of Vienna (1815)—toward the internationalization of rivers as a principle to be a part of "Euro- pean Public Law"—fitted in naturally with a theory of natural right of merchant ships to navigate streams which flowed through the territory of more than one state. Speaking of this, in rela- tion to American claims to navigate the St. In an instruction of 1853 to the American minister in Brazil concerning rights of navigation on the Amazon, he wrote: W e claim for this continent the same privileges which nearly forty years ago were arranged by common consent and have been ever since applicable to the navigable waters of Europe.

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1 1 4 THE INTERNATIONAL LAW STANDARD The dissent of certain foreign offices from such ideas as that which Clay and Marcy had expressed did not cause the United States to cease from effort to secure additional river-navigation rights in the Western Hemisphere. Lawrence on a temporary basis in 1854 (in exchange for certain commercial advantages) and on a more permanent basis in 1871 (by the Treaty of Washington, in exchange for naviga- tion rights on the Yukon, Porcupine, and Stikine).73 Treaties with some of the South American states shortly after the middle of the century recorded further successful effort. Some of these agreements contained references to general principle. There was, on the other hand, occasional concession to the principle of sovereignty. For example, the treaty of July 10, 1853, with Argentina, contained in its first article the following statement: The Argentine Confederation, in the exercise of her sovereign rights, concedes the free navigation of the Rivers Parana and Uruguay, wherever they may belong to her, to the merchant vessels of all nations, subject only to the conditions which this treaty establishes, and to the regulations sanctioned, or which may hereafter be sanctioned, by the national authority of the Confederation.74 General Justo Jose Urquiza, Provisional Director of the Argen- tine Confederation, negotiated this treaty, and similar ones which he made with Great Britain and France, under conditions of civil war. The fifth article referred to the principle of free navigation of the mentioned rivers.

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COMMERCE AND NAVIGATION 115 year (1852), Secretary of State Daniel Webster had said, con- cerning General Urquiza and the matter of free access to and from Paraguay by the rivers that empty into La Plata: As his own territories occupy both banks of some of those rivers, he would have at least a show of right for . . . refusal, as much, in- deed, as Great Britain had for withholding from the United States the free navigation of the St. Lawrence.76 Conclusion of the 1853 treaty with the Argentine Confedera- tion had as a sequel some correspondence with Brazil. In a state- ment communicated through the minister at Washington, the Brazilian minister of foreign affairs observed that the fifth, sixth, and seventh articles of the treaties which General Urquiza had made with France, Great Britain, and the United States, respec- tively, if not understood in a reasonable manner according to the imprescriptible rules of justice and the principles of universal public law, "may prove detrimental to the rights which Brazil 77 possesses as a sovereign nation." As to the main principle in- volved, the minister observed: The states of the River Plata and its confluents have the power to grant or to refuse the navigation of their inland rivers to non-riparian nations. It is a right that belongs to them and which they can exercise, considering only their [own] interests and circumstances. To claim the preservation of a right under a forced and non-conventional obligation, in favor of other nations, and, moreover, to threaten with a loss of territory a state which does not wish to subject itself to such obligation, would be a most intolerable abuse of power, and the Government of His Imperial Majesty is convinced that this proceeding is repugnant to those principles of sound policy which govern the acts of the Gov- ernment of the United States. To this the Secretary of State (Marcy) replied, some nine months later, that the Brazilian government might "rest satisfied that should any difference arise as to the interpretation of the Treaty, the Government of the United States will be found 76 Ibid., p.

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116 THE INTERNATIONAL LAW STANDARD claiming such a construction only, as may comport with the prin- ciples of justice, with the rules of public law, and with those in- terests of Brazil which as a nation in amity with her she shall 78 feel bound to respect." This seems to have allayed the fears of the Brazilian foreign minister. Still another state, Bolivia, had an active interest in the ar- rangement. The Bolivian government took steps to adhere to the American-Argentine treaty, but there is some doubt whether 78 this adherence ever became legally effective. Before there could be much more official application of principles, legalists had need of factual information concerning the waterways. Exploratory activity over the next several years was to pave the way for further treaty arrangements concerning important rivers of South America. Lieutenant Matthew Fontaine Maury of the United States Navy set himself with great fervor to the task of impressing Americans and others with the importance of open- ing the Amazon to the world's commerce.

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COMMERCE AND NAVIGATION 117 enunciated at the Congress of Vienna to those rivers which flowed from the frontiers of Brazil and Paraguay into the Atlan- 82 tic. The exploration and survey of the river La Plata and its 83 tributaries, completed by Commander Thomas J. Page in 1856, prepared the way for further negotiations on use of the water- ways concerning which the Brazilian minister of foreign affairs had observed, in May 1853, that the right to their navigation 84 had "not been settled." Throughout the period of exploration, Secretary Marcy had largely rested his position, in asking for the opening of the waterways, upon international law as he claimed it had been declared by the Congress of Vienna. By 1858, therefore, there had been considerable emphasis upon the legal argument. The United States secured from Bolivia in that year a treaty declara- tion that the rivers Amazon and La Plata, with their tributaries, were regarded, "in accordance with fixed principles of interna- tional law," as "highways or channels opened by nature for the 85 commerce of all nations." Of this declaration Charles W. Dana, negotiator for the United States, wrote that it was "as full as could be desired." He thought it made possible a permanent commercial and political influence in the granting country and in countries which Americans would traverse in order to reach 8 the waters on which Bolivia had recognized the rights. ® With Paraguay, the United States had signed a treaty in 1852 which would have given rights of navigation on the Paraguay 87 and Parana Rivers, but it did not come into force.

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118 THE INTERNATIONAL LAW STANDARD tine Confederation. The second article of the treaty with Para- guay contained the following: The Republic of Paraguay in the exercise of the sovereign right which pertains to her, concedes to the merchant flag of the . . . United States of America the free navigation of the river Paraguay as far as the dominions of the Empire of Brazil, and of the right side of the Paran4 throughout all its course belonging to the Republic, subject to police and fiscal regulations of the Supreme Government of the Re- public, in conformity with its concessions to the commerce of friendly nations.88 It was nearly a decade later that the Amazon was entirely opened to the commerce of the world.89 In the achievement of the general results recorded in its treaties, the United States had made considerable use of the argument that it was entitled to what it sought as a matter of legal right, although, as has been seen, there were in the treaties as they were finally made some statements emphasizing the sovereign rights of riverain states to prohibit use of waterways to outsiders.90 There continue to be difficulties in the definition of "international rivers," as well as differences of opinion on existing rules of the droit fluvial coutumier generalement reconnu.91 As compared with those in Europe, the rivers of South America, which figured in treaties of the United States, were never so carefully classified into inter- national and national and were not so often the subject of multi- lateral treaties,92 although, as has been seen from quotations 88 12 Stat. For the unusual circumstances which attended the nego- tiations, see Miller, Treaties, VIII, 229, 237, and Richardson, Messages, VII, 3091. 9 1 This will appear from discussions of the Institute of International Law. 9 2 Carlos Sosa-Rodriguez, Le Droit fluvial international et les fleuves de l'Amdrique latine ( 1 9 3 5 ) , pp.

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COMMERCE AND NAVIGATION 119 above, there were sometimes references in the texts to legal principles applicable to the subject matter. In the course of its diplomatic history, the United States has had occasion to take a position on the use of the water of an international river (in the sense of a stream in which more than one state has a valid interest) for purposes other than naviga- tion. Its official position concerning the diversion of water by an upper state, in the case of a river which farther down its course becomes an international boundary, occasioned sharp 83 criticism, based at least in part on legal considerations. The course followed here does not necessarily detract from American advocacy of the free use, for purposes of navigation, of waterways which have constituted natural highways of com- 94 merce. The movement in each case was in line with the position which the United States, for the protection of its own interests, had taken in the first and second decades of its inde- Alvarez as quoted in Annuaire de l'lnstitut de Droit International, XXXVIII (1934), 178: "On n'y trouve pas reconnu, avec le caractere universel qu'il a en Europe, le principe de la libre navigation des fleuves internationaux, et quand il est admis en faveur d'autres Etats que les Etats riverains, il a plutot le caractere d'une concession gracieuse que d'un veritable droit." 93 See the opinion of Attorney General Judson Harmon in regard to cer- tain uses of the waters of the Rio Grande (21 Op. Ruth Bacon, "British and American Policy and the Right of Fluvial Navigation," Brit.

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120 THE INTERNATIONAL LAW STANDARD pendence.95 Even at the time of the Barcelona Convention (1921), the idea of free navigation by all states of international rivers was not so generally accepted that it could satisfactorily be left on the basis of a customary rule. For reasons of self-interest, the young American republic had in the matter of the Mississippi question sought, partly on the ground of an existing international right, a liberal rule which later came to be established in a measure, but through the force of specific-provisions treaties rather than through the mere affirmation of the international law standard. FREEDOM OF THE SEAS AND CONTROL OF THE SLAVE TRADE Somewhat in contrast to American official attitudes summarized in the preceding section of this chapter was the course which this country followed before 1862 in regard to search on the high seas of vessels that were suspected of slave trading. In this in- stance, humanitarianism was a factor, in addition to principles of public law, and there was a question of integrating municipal criminal law with proposed treaty rules. Although in the treaty which climaxed the development there is no specific refer- ence to the international law standard, there was effort to base the reform sought on law as well as morals. At the begin- ning of the second decade of the nineteenth century, when pass- 96 The general statement would apply particularly to the principles em- bodied in the Statute on the Regime of Navigable Waterways of International Concern, annexed to the 1921 Convention of Barcelona (7 L.N.T.S.

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COMMERCE AND NAVIGATION 121 ing upon captured American ships, British prize courts an- nounced a doctrine whereby the duty of restitution was affected by· a finding that vessels taken had been engaged in slave traffic 96 in violation of the laws of their own country. In the well-known case of Le Louis, however, Sir William Scott held that the "right of visitation" and seizure in time of peace could be exercised on the high seas against a vessel of a foreign state only if the ship were taken legally as a pirate or as a measure of self-defense in the course of repelling injury. The fact that laws of France as well as those of England proscribed the slave traffic gave to a British man-of-war, the court held, no right to visit and search 97 a French ship on the ocean. Eight years later, after a lower federal court had seemed to adopt the idea that slave trading was violative of international law, Chief Justice Marshall in the case of the Antelope denied that any nation could prescribe a rule for others. The slave trade not being piracy by the law of nations or contrary to that law, there was no right for an Ameri- can public vessel to bring in ships even of countries whose 98 statutes prohibited slave trading. There remained the possibility of handling the problem by means of conventional agreement.

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122 THE INTERNATIONAL LAW STANDARD states to determine for themselves, or to negotiate with others concerning, the time of actual abolition.101 The possibility of a multilateral treaty or a system of treaties authorizing specific procedures was affected by fear on the part of some governments that British public ships would use treaty- given powers arbitrarily. The British tried to allay such fears. At die Congress of Aix-la-Chapelle (1818), for example, they pointed out in memoranda to the French that none of the three conven- tions (with Spain, Portugal, and Holland, respectively) by which Great Britain had gained the reciprocal right of searching sus- pected vessels had given this right in such a form that it could be used indiscriminately. Rather, each had confined it to vessels having express instructions and authority specified in the treaties. The French plenipotentiary had conceded, the memoranda pointed out, that the measures proposed (reciprocal right of search, to be followed by seizure if the evidence seemed to justify) could not be considered as infractions of the law of nations, and that they rather confirmed that law, since they en- visaged a "new power as a Constitutional exception from the admitted principles of the general law."102 The Congress of Vienna having declared the trade in slaves an odious crime and a disgrace of civilized nations, the British were still left without international authorizations for the practical measures they wished to take. As set forth at the Congress of Verona (1822), the repressive measures contemplated were to be undergirded by a declaration of the assembled ministers which would renew the formal de- nunciation of 1815.

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COMMERCE AND NAVIGATION 1 2 3 time powers of Europe which had not entered into treaty agree- ment with the British to give certain ships of each contracting party a limited power of search and capture. The British felt that their government had been left to "stand alone" in Europe on the question, and that British importunities had been "erro- neously attributed to some selfish commercial interest."104 In spite of these arguments the French were unwilling to go as far as their powerful neighbor desired. They referred to France's rec- ognition of the freedom of the seas for all foreign flags, and the Congress made no declaration substantially in advance of what had previously been done about the slave trade. Later, the French attitude was to be related to American action. An act of May 15,1820, made slave trading piracy under United States law and punishable by death.105 There was no implica- tion, however, that any public vessels except American could proceed against American ships on the high seas. In its diplomatic relations the United States soon began to take a strong position regarding measures of enforcement against suspected traffickers in slaves if these measures might involve visit and search of Amer- ican vessels by armed ships of other nations.

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124 THE INTERNATIONAL LAW STANDARD though for different purposes, could not be acceded to by the Ameri- can Government consistently with their principles. . . . Of therightof mutual search it is clear that its efficiency depends altogether upon its universal adoption. So long as it shall be declined by any one maritime state, however inconsiderable, its adoption by all others would leave it altogether ineffectual . . . it is scarcely to be expected that any principle so liable to misapplication and abuse can obtain, as an innova- tion upon the law of nations, the universal concurrence of all maritime powers.108 The complete assimilation of slave trading to piracy under in- ternational law would have put visit and search of suspected slave ships on the basis of a legally justifiable procedure. After the House of Representatives in a resolution of February 28, 1823, had requested that the President open negotiations with maritime powers of Europe and America on the subject, American ministers at European and American capitals received instructions to propose that the African slave trade be proscribed by classing it as piracy and punishing as pirates those who engaged in it.107 It is difficult to determine what sentiment there was in the country in support of such a move. According to Henry Wheaton, the United States at this time was ready to have the slave trade declared piracy by the law of na- tions and the slave traders subject to seizure by the law of any nation, but with such persons subject to trial only by tribunals of the state of the captured vessel, the seizing officer to be respon- sible for the visitation and everything done in connection with it.108 There was an effort to conclude an Anglo-American treaty on the subject in 1824. An agreement signed in London on March 8 of that year provided for reciprocal right of search in certain areas, including waters off the coast of "America." The Senate amended the instrument so as to omit mention of American waters, and the 106 Moore, Digest, II, 919.

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COMMERCE AND NAVIGATION 125 British government declined to accept the treaty in this changed form.109 Sixteen years later, when there was still no treaty be- tween the parties authorizing specific procedures, a British and an American naval commander made an agreement for cooperation in action against slavers, but the Van Buren administration dis- avowed this arrangement.110 In contemplation of general international law, the traffic in slaves was still not illicit. Property in slaves was good property for the purpose of protection through international reclamations, notwithstanding the fact that some states of the world had abolished slavery. In the case of the Enterprize, which grew out of incidents occurring in 1835, that of the Hermosa, arising out of the freeing of American-owned slaves in British jurisdiction in 1840, and that of the Creole, which involved the bringing of an American vessel into the port of Nassau in 1841 after a mutiny of slaves on board, awards were made against Great Britain under the convention of February 8, 1853111 In the first men- tioned case the umpire said that while slavery was contrary to the principles of justice and humanity, it existed by law in several countries at the time the claim arose; it "could not then be contrary to the law of nations, and the Enterprize was as much entitled to protection as though her cargo consisted of any other description of property." In the Creole, the same arbiter felt that he "need not refer to authorities to show that slavery, however odious and contrary to the principles of justice and humanity, may be established by law in any country; and, having been so es- tablished by law in many countries, it can not be contrary to the law of nations." In 1841 there was renewed effort for a multilateral treaty. On April 16, Andrew Stevenson, American minister in London, had written to Palmerston that the United States government, which had made the slave trade piracy under municipal law, had not by this step made piracy an offense against the law of nations, since 109 Amer. Rel., V, 319-322, 361-362, 364-365. Soulsby, The Right of Search and the Slave Trade in Anglo- American Relations, 1814-1862 (1933), p.

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126 THE INTERNATIONAL LAW STANDARD one nation could not add to or limit offenses against the "public U 2 law." On September 10 the minister wrote that, since the slave trade had not been acknowledged as piracy in international law, there was no case whatever for the exercise of a right of visit and search against the traders, and the right must therefore stand on the grounds of expediency and necessity as the only 113 grounds of executing treaties for suppression of the trade. In his annual message, December 7, 1841, President Tyler declared that the proposed concessions could not be made. The United States, he added, had the will and the ability to protect its flag from being used for purposes forbidden by American laws and 114 obnoxious to the moral censure of the world. The attitude of the United States seems to have had some effect upon the policy of France. He pointed to dire results "when a few years more shall have consecrated the present doctrine, as 118 an acknowledged principle of international law." There has 1 1 2 Soulsby, The Right of Search, p. Hackworth, A Digest of International Law (1940-1944), II, 660.

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COMMERCE AND NAVIGATION 1 2 7 been disagreement concerning the influence which the pamphlet actually had upon the growth of sentiment in France against the Quintuple Treaty and upon France's failure to ratify.119 Short of a multilateral treaty arrangement, there was the pos- sibility of a considerable measure of cooperative action under bilateral agreement. The Webster-Ashburton Treaty, signed August 9, 1842, contained no declaration of newly established public law of general application, but, after repeating in the preamble the words of the tenth article of the Treaty of Ghent and expressing anew the determination that, in so far as it might be within the power of the signatory governments, the slave trade should be "effectually abolished," it provided in article VIII the following plan: The Parties mutually stipulate that each shall prepare, equip, and maintain in service, on the coast of Africa, a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descrip- tions, to carry in all not less than eighty guns, to enforce, separately and respectively, the law rights and obligations of each of the two countries, for the suppression of the Slave Trade, the said squadrons to be independent of each other, but the two Governments stipulating, nevertheless, to give such orders to the officers commanding their re- spective forces, as shall enable them most effectually to act in concert and cooperation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this article; copies of all such orders to be communicated by each Government to the other respectively.120 American (1842), p. As to the law which the treaty was designed to change, Cass made the following observations: "The law of nations is but general opinion, illustrated by able jurists, and sanctified by time, and by universal acquiescence. Touch it rudely, and the whole fabric will dis- appear, leaving the nations of the world, in their mutual relations, as they existed in the most barbarous ages." 119 As to the effect of the pamphlet, see Jesse S. Reeves, American Di- plomacy under Tyler and Polk (1907), p. 36; Beckles Willson, Americas Ambassadors to France, 1777-1927 (1928), pp.

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128 THE INTERNATIONAL LAW STANDARD A communication which the President sent to the Senate two days after the signing of the agreement explained that "the treaty . . . proposes no alteration, mitigation or modification of the rules of the law of nations." In his annual message on the follow- ing December 6, President Tyler said: "While . . . the United States have been standing up for the freedom of the seas, they have not thought proper to make that a pretext for avoiding a ful- fillment of their treaty stipulations or a ground for giving counte- nance to a trade reprobated by our laws." He added that a similar arrangement by the other great powers "could not fail to sweep from the ocean the slave trade without the interpolation of any 121 new principle into the maritime code." Of the pertinent parts of the Webster-Ashburton Treaty, Secre- tary of State Webster wrote to Edward Everett, minister to Eng- land, on March 28, 1843, that "Great Britain had claimed as a right that which this Government could not admit to be a right, and, in the exercise of a just and proper spirit of amity, a mode was resorted to which might render unnecessary both the asser- 122 tion and the denial of such claim." The American contention that, for the purpose under consideration, there was no valid distinction between visit and search, rested on essentially practical considerations. While admitting the right of approach to a vessel on the high seas, as it had been described in the case of the 123 Marianna Flora (1826), the United States continued to deny that there was a right, without specific assent of a state whose vessels might be visited and searched, to do what the Quintuple Treaty of 1841 had contemplated. Nor do the British appear to have denied this. A harmonizing of the views of the two governments came con- siderably later. Nearly sixteen years after the Webster-Ashburton 121 Ibid., pp. 397, 439; Richardson, Messages, IV, 194-209.

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COMMERCE AND NAVIGATION 129 Treaty came into force, Mr. Cass, then Secretary of State, in a note of April 10, 1858, denied "the right of the cruisers of any other power . . . for any purpose whatever" to enter the vessels of the United States by force in time of peace. "Search or visit," he said, "it is equally an assault upon the independence of na- tions." The British government, in a note of June 11 to the British minister at Washington, recognized as sound "those prin- ciples of international law which have been laid down by Gen- eral Cass in his note of the 10th of April," and recognized that "nothing in their treaty of 1842 with the United States supersedes 124 that law." President Buchanan was able to report to Congress in his message of the following December 6 that "the long-pend- ing controversy between the two Governments in relation to the 125 question of visitation and search has been amicably adjusted." Within four years after obtaining from the principal maritime state concerned an affirmation of the principle of law for which she had contended, the United States agreed with the same mari- time state to some deviation from the rule of freedom from visit and search on the high seas. The treaty of April 7, 1862, with Great Britain, permitted the reciprocal right of search and de- tention of suspected slave carriers within two hundred miles of the coast of Africa, and south of the thirty-second parallel of latitude, and within thirty leagues of the coast of Cuba. Punish- ment of those engaged in slave trading was to be according to laws of the country in which the vessel used was registered. A sys- tem of mixed courts was to function as part of the plan, the tribunals to be located at Sierra Leone, New York, and the Cape 12 of Good Hope. ® Some seven months prior to the signing of the treaty, the Secretary of State (William Henry Seward) had told Richard B. Lyons, the British minister, that he might inform his government "informally" that the "present Administration had none of the squeamishness about allowing the American vessels to be boarded and searched which had characterized their predeces- 124 Moore, Digest, II, 943.

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130 THE INTERNATIONAL LAW STANDARD sors."127 On November 2, 1861, Seward indicated that he would like to receive from Lyons, "for his own private use," a mem- orandum on the subject of an arrangement such as would be ac- ceptable to the British government.128 The sequel to this was the signing, by the Secretary of State and the minister, of an "informal memorandum," dated November 13.129 This, however, was not thought by the British government to afford ample basis for the issuance to commanders of British cruisers of instructions for searches and detentions.180 The British minister, for his part, was concerned not merely with the feelings of the American people in regard to the slave trade, but with the mood in which the Ameri- can people might happen to be with regard to England when an American slaver arrived in charge of a "British Prize Crew."131 In an instruction of February 28, 1862, Earl Russell observed that "a verbal Agreement . . . might be of little avail against a popu- lar cry, founded on the indisputable doctrine of International Law, that the Right of Search cannot be lawfully exercised in time of Peace." With this same instruction was forwarded a draft treaty,182 the text of which followed the model which Great Britain had signed with Spain in 1835. The outcome was the signing of the treaty on April 7, but this did not occur until Seward had made it clear, and the British had agreed, that the treaty must appear (when presented to the Senate for its approval) to have been a proposal originating with the United States.133 The Senate gave its approval by unanimity, and the mixed courts were established, but some difficulty in the carrying out of the treaty plan was encountered from Gideon 127 Miller, Treaties, VIII, 779. In the same conversation the Secretary referred to the great change which had occurred in public opinion in the United States on the subject. 129 Text in Miller, Treaties, VIII, 784. 130 Instructions to Lyons, December 7, 1861, and February 28, 1862, quoted in Miller, Treaties, VIII, 786, 791. 131 Despatch of February 11, 1862, quoted in Miller, Treaties, VIII, 789.

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COMMERCE AND NAVIGATION 1 3 1 Welles, American Secretary of the Navy. This officer, evincing lack of enthusiasm for the arrangement and for the part which 134 the Secretary of State had had in its making, at first declined to issue the necessary instructions to American naval commanders on the ground that the treaty bound the United States to give up, for the specific purpose set forth in the instrument, the general belligerent right of search in latitudes where the exercise of that 135 right was important. Correspondence on this point brought from the British government an indication that it did not "regard the Privileges granted by that Treaty as in any way derogatory from or conflicting with the Belligerents Rights of the United States Cruizers," powers conferred by the treaty being added to 138 such belligerent rights and not substituted for them. The point concerning the special rules under the treaty (in their relation to general international law on belligerent rights) having been set at rest, the necessary instructions to American naval commanders 137 were issued in the form of a "Special Warrant." There fol- lowed, however, no captures pursuant to the treaty terms, and as Welles later put it, the officers of the mixed courts "never had 138 anything to do but draw their salaries." The fact that no slaver was ever tried in these courts has been taken as evidence that the 139 Lyons-Seward treaty achieved its object. An additional article signed the following year added to the treaty zones (wherein reciprocal search and detention were permissible) water within thirty leagues of Madagascar, within 184 Gideon Welles, Diary (1911), I, 166-167. On the question of whether the treaty had been discussed with the President and the Cabinet (as Seward claimed it had been, and Welles said it had not been), see Miller, Treaties, VIII, 818.

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132 THE INTERNATIONAL LAW STANDARD thirty leagues of Puerto Rico, and within thirty leagues of San 140 Domingo. By the convention of June 3,1870, it was agreed that the mixed courts should be discontinued as "no longer necessary" and cases arising thereafter under the treaty were to go to 141 municipal courts. The treaty, the additional article, and the ad- ditional convention were terminated (after notification by Great 142 Britain) on April 29,1923. The treaty development which has been traced was followed by steps looking to a wider multilateral system for suppression of the slave trade. As a party to the General Act of Brussels, July 2, 1890, the United States accepted a plan of allowing the examina- tion of papers of suspected vessels of less than five hundred tons and in defined zones; the right of search became permissible with regard to vessels of those states which, in conventions on the subject, had given the right on a reciprocal basis. The articles of the General Act set forth the desire to ensure, by arrangements suitable to modern requirements, application of the general principles of civilization established by the Acts of Berlin and 143 Brussels.

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COMMERCE AND NAVIGATION 133 Geneva Convention seven years later (September 25, 1926) 145 contained provisions envisaging another general convention that would provide for the stopping and bringing in of suspected vessels, a plan similar to that in the convention on trade in arms, which had been signed at Geneva on June 17, 1925.14® What the British had sought in nearly a half century of diplo- macy in the matter of the slave trade was not the abandonment of the standard which was the freedom of the seas, but a lex specialis to permit procedures against vessels suspected of en- gaging in a special type of traffic. The method has subsequently been successfully employed with respect to certain other subject matters. Lacking a special arrangement which would have per- mitted, in one such subject matter, protective action without in- fringing the basic principle, the United States lost the Bering Sea Arbitration, but less than two decades later became a party with the other states principally concerned to a treaty that authorized procedure against individuals violating agreed rules.147 An earlier multilateral achievement had to do with protection of submarine cables, in connection with which the United States proposed a draft that would have made individuals' acts in certain circum- stances piratical acts.148 That some needed limitation on the im- munity of private vessels on the high seas may be accomplished by bilateral treaties is illustrated in certain agreements of the 145 46 Stat. 146 The latter convention did not immediately come into effect for the United States (Hackworth, Digest, II, 6 7 2 ) . A summary of provisions is in Hackworth, Digest, I, 795-797. 1 4 8 This draft was proposed in discussions of 1869, but was not adopted.

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134 THE INTERNATIONAL LAW STANDARD 149 prohibition era and in bilateral treaties with Canada concerning 150 halibut and sockeye salmon. It may be true that, in the formulation of foreign policy with respect to the slave trade in the first half of the nineteenth cen- 1 tury, the appeal to legal principle was a minor element," and that considerations of interest, quite apart from concern for the gen- 152 eral law of nations as such, were paramount. This would, of course, be possible in almost any international situation, since the law is a means and not an end. In any case, resistance to inter- national cooperative action persisted in this instance until there was in the United States a change with respect to the national problem which had affected the position taken on the international legal issue. 149 See Chapter IV, section 2, infra. The development treated in this section, in relation to the broad prin- ciple of the freedom of the seas, with particular attention to France's posi- tion, is treated in Gidel, Le droit international public de la тег, I, 389-410.

INDEPENDENCE AND

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C h a p t e r I V INDEPENDENCE AND JURISDICTION OF STATES It might be expected that treaty provisions touching upon such subjects as the existence and independence of states would furnish occasion for frequent reference to the international law standard. It is obvious that only in terms of that standard would a state's existence and the right to exercise its authority become, in the full legal sense, meaningful. However, except for multi- 1 lateral or "code" statements on rights and duties, there have been few treaties of the United States in which parties, when dealing with these broad subjects, have made specific mention of the standard. Some questions of state jurisdiction have already been con- 2 sidered. In the present chapter the concept of intervention, as it has presented questions of relation to the standard, will receive attention. Illustrations are from a bilateral treaty which is now of only historical interest, from official pronouncements of the Western Hemisphere republics, and from recent undertakings which have sought to reconcile the principle of nonintervention with that of collective action against aggression.

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136 THE INTERNATIONAL LAW STANDARD have asserted the duty of nonintervention. A reference in a treaty to intervention in relation to international law would presumably imply a rule of international law on the subject. In the treaty practice of the United States there has been at least one instance of advance authorization in terms of international law of protective action by one party in the territory of the other party state. Still more recently treaty makers have sought to reconcile the idea of a state to be free from intervention with the plan of collective action in the interest of international peace and security. a. Bilateral Authorization: The Gadsden Treaty Among the treaties which make direct reference to international law, that which the United States signed with Mexico on De- cember 30, 1853, seems to merit special attention because of the nature of the reference and the personal and political factors that figured in the development. A brief summary of the latter is es- sential to a consideration of the possible purpose and effect of the mention of the international law standard.

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INDEPENDENCE AND JURISDICTION OF STATES 137 4 each country respectively." Article VII reaffirmed the 22nd article of the Treaty of Guadalupe Hidalgo, with its provisions concerning nationals of one party in the territory of the other in the event of war, humane treatment of prisoners of war, and its pledge that rules of the article were to be "as sacredly observed as the most acknowledged obligations under the law of nature or nations." Article VIII of the Gadsden Treaty had to do with a concession that the Mexican government had granted to a con- cern (in which Americans had an interest) to construct a plank- and-rail road across the Isthmus of Tehuantepec. The United States was to have the right of transit over such road for troops, munitions, persons, and merchandise. Furthermore, the fifth para- graph of the article contained the following: The Mexican government having agreed to protect with its whole power the prosecution, preservation and security of the work, the United States may extend its protection as it shall judge wise to it when it may feel sanctioned and warranted by the public or inter- 5 national law. The events bearing particularly upon this part of the treaty began with the granting by General Antonio Lopez de Santa Anna, in 1842, of a concession to Don Jose Garay for the develop- ment of a communication route across the Isthmus of Tehuan- tepec.® Four years later (on November 5,1846) a Mexican decree (of the Salas government) gave Garay two years of additional time within which he might begin his operations. Rights under the concession had, in the meantime, come into the hands of British subjects by transfer. Six months prior to the signing of the treaty, Secre- tary of State Marcy had written Roscoe Conkling, minister to Mexico, that the United States had no intention of departing from international law in such agreements (J.

investors became parties in interest when, in 1849, Hargous

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138 THE INTERNATIONAL LAW STANDARD investors became parties in interest when, in 1849, Hargous Brothers of New York acquired the rights originally given to Garay. Protection of what these American citizens had acquired then became a matter of some concern to their government. To Nathan Clifford, American minister to Mexico, on July 11, 1849, the Mexican foreign minister (Lacunza), wrote that Mexico would not annul the privileges merely because the holders were Ameri- can citizens. At the same time he said, with respect to possible annulment for failure to fulfill conditions of the contract, that, "if the privilege should be annulled from motives of this kind, nothing could legalize the intervention of the government of the United States." Continuing, he observed that, however this "affair" be regarded, there cannot be the slightest doubt, according to the principles of the law of nations, that all questions concerning its validity, the compliance with its conditions, its forfeiture, etc., are to be discussed, decided and determined, according to the laws and by the constitutionally compe- tent authorities of Mexico, to the exclusion of those of any other 8 power. In September of the same year, Robert Perkins Letcher, the new minister to Mexico, received instructions to seek a conven- tion with Mexico providing for protection of the rights and 9 property of persons who desired to construct the communication. Hargous wrote to Daniel Webster, Secretary of State, that the parties interested in the privilege were aware that in ordinary cases it was not the practice of the United States government officially to interfere in behalf of 8 Sen.

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INDEPENDENCE AND JURISDICTION OF STATES 139 American citizens who might complain of the violation of a con- tract which they had made with a foreign government. He went on to say that all general rules have their exceptions and that the American government and public, especially people in the West and Southwest, were "largely involved in the success of the Tehuantepec enterprise."11 The Secretary of State assured Hargous that the citizens con- cerned might "rely upon all the protection which the executive government of the United States can constitutionally and lawfully extend to them." He added that, if remonstrances through diplo- matic channels should prove insufficient to secure the protection, "it cannot be doubted that in such a case, in which the interests of individuals would be obviously subordinate to those of the public, any other means which might be necessary for your protection would be authorized and employed." At the instance of the parties concerned, Webster sought, through the American minister at Mexico City, to secure more adequate provisions, pointing out that under provisions proposed Mexico would enjoy all the real benefits of sovereignty in the area and be relieved of some of the most onerous of its duties. A suggested convention left each party free to use its military or naval forces for the needed "protection." Webster stated that, "if Mexico should reject our overtures for this purpose, we will extend our protection to them alone, accord- ing to our own sense of right and duty, and as future events may require." Mexico refused assent, its government saying that such arrangements would infringe upon the national sovereignty, dig- nity, honor, and pride, and its foreign minister observing that en- try of foreign military forces had always been held as an attack upon the sovereignty of the state entered—or at least that such entry should only be at the express request of the nation.12 A new draft convention, dated January 25, 1851, was not very different from that of the preceding year, except that it contained a provision for arbitration of differences between the Mexican government and the concessionaire.13 Opposed by the clergy, the 11 Sen. 13 The text of the provision (article 5 ) was as follows: "In any differ- ence . . . between the government of Mexico and the undertakers, either

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1 4 0 THE INTERNATIONAL LAW STANDARD press, the houses of Congress, and all political factions in Mexico, the treaty was rejected in the Mexican Senate by a vote of 71 to 1, although it received the unanimous approval of the United States Senate.14 On May 22,1851, the Mexican Senate declared the 1846 (Salas) decree, on which the American company relied, to be null and void. This meant the termination of all privileges under the Garay grant. It drew from Secretary Webster the following statement, on August 2 5 , 1 8 5 1 : In all civilized countries instruments of this description are con- sidered as contracts . . . conferring privileges which are not to be revoked without reasonable cause . . . not liable to be annulled at the pleasure of the executive or legislative power.15 The threat of filibustering expeditions, over the period from 1848 to 1853, was a considerable factor in the diplomacy.16 On December 13,1851, the Mexican foreign minister, Jose F. Ramirez, wrote the American minister that if the New Orleans Company (Judah P. Benjamin and associates), which had now become a party in interest, should make forcible attempts, Mexico would be under the inevitable necessity of treating the company's agents "with all the severity which the laws of nations authorize."17 The the present or the future, of the work, which may involve the loss of the right to the privilege, the complaining party shall draw up a statement of its pretensions and motives, and a similar statement shall be drawn up by the other party; and both statements shall be submitted to the decision of two arbiters who hold no diplomatic appointment or commission, and who reside in the Mexican territory. One of these arbiters shall be appointed by the holders of the privilege, and the other by the government of Mexico; and these two, in case of disagreement shall appoint a third, with the quali- fications above required, who shall decide the controversy; and from the decision of these arbiters there shall be no appeal or recourse whatever.

INDEPENDENCE AND JURISDICTION OF STATES 1 4 1

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INDEPENDENCE AND JURISDICTION OF STATES 1 4 1 legal tone of some of the discussion is further illustrated by Secre- tary Webster's letter to the minister from Mexico dated June 30, 1852. After saying that the isthmus, while a possession of Mexico, was important to the United States and to the world, he added: Mr. Larrainzer of course well understands that, according to the acknowledged principles of public law and the usages of nations, an- cient and modern, the obligations of good neighborhood and national friendship, make it the duty of a state to allow reasonable transit over its own territories to the citizens and subjects of other friendly govern- ments for the purposes of commerce and other peaceable communica- tions.18 The strong tone which the State Department's pronouncements took at times seems to have been motivated by more than concern for the general principle that American concessionaires should be protected in the enjoyment of that which they had validly ac- quired from another government. That the alternative route across the Isthmus of Tehuantepec must be secured for the commerce of the United States was perhaps a natural conclusion of the expansionists. As late as February 2,1853, the United States minister to Mexico (Roscoe should be captured within the jurisdiction of the Mexican authorities they must expect to be tried and punished according to the laws of Mexico and will have no right to claim the interposition of this Government in their be- half" (Richardson, Messages, VI, 2 6 4 8 ) . A direct communica- tion from President Fillmore, of March 19, 1852, drew from President Mariano Arista of Mexico the statement, concerning the Garay grant and especially the attitude of the United States with respect to it, that, "the conclusion is irresistible that the object particularly aimed at was an occa- sion to bring the two countries into conflict, and that, with this intention, w - • 1 1 what it was known she could not and would

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1 4 2 THE INTERNATIONAL LAW STANDARD Conkling) wrote to Edward Everett, Secretary of State, in a tone that suggests a broad view of American and world interests which the writer sought to harmonize with international law. Concerning the holders of the Garay grant, Conkling observed that the United States, without violating any principle of international law, might, at their option, insist on the recognition by Mexico of the rights claimed by these assignees, and in doing so, might further insist on stipulations from the Mexican Government, deemed necessary to the accomplishment of the great enterprise in view, and to its practical utility when completed; and that considering the vast importance of the work to the whole American people, it was fit and proper for their government to avail itself of the opportunity thus presented, to inter- pose in the manner it did.19 Three days after this communication was written, the Mexican government signed a contract with another American company, headed by A. Sloo, who seems to have been in conversation with Mexican officials as early as 1851. By the new arrangement, the concessionaire was to construct a plank road across the Isthmus of Tehuantepec within three years, and a railroad within four years. All questions that might arise were to be decided by the competent Mexican courts and according to Mexican laws. The company was to pay to Mexico $600,000; the Mexican gov- ernment was to be a stockholder; one third of the company's stock was to be, for six months, at the disposal of Mexican purchasers.20 The Sloo interests, incorporated as the Louisiana Tehuantepec Company, gave a lien on their grant to F. de P.

INDEPENDENCE AND JURISDICTION OF STATES 143

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INDEPENDENCE AND JURISDICTION OF STATES 143 British subject, in order to secure money to make the payment to Mexico. (The lien was acquired by P. Hargous of New York in 1856.) On March 21,1853, Conkling transmitted to President Pierce a proposed convention concerning the Sloo grant, but the President apparently did not submit it to the Senate. When James Gadsden arrived in Mexico City in August 1853, questions of rights under the old Garay grant, and of what the Sloo interests had acquired, were still at issue. There were also boundary matters, the problem of protection against filibustering expeditions, and Mexican com- plaints that the United States had failed to fulfill its legal obliga- tions under article XI of the Treaty of Guadalupe Hidalgo (con- cerning Indian raids). The treaty draft, as signed at Mexico City, provided that the United States should assume claims of its citizens against Mexico, "including the claim of the so called concession of Garay." Article VIII would have com- mitted the United States to pursue with naval forces such fili- bustering expeditions as might elude civil and military forces and reach the high seas.22 These parts were not in the draft as finally approved by the United States.23 Gadsden, who had been wary of the instructions brought by Ward, seems to have been willing to include the provisions looking to assumption of the claim growing out of the Garay concession; but the concession furnishing oc- casion for special wording in the treaty, as it was "amended" by the United States Senate, was the Sloo concession.24 The so-called 2 1 J. 2 3 Rippy, "Diplomacy of the United States and Mexico . . ." p.

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144 THE INTERNATIONAL LAW STANDARD Sloo Amendment, which contains the clause regarding the right of the United States to "extend its protection as it shall judge wise" when it should feel "sanctioned and warranted by the public or international law," was apparently inserted when the treaty was 25 before the United States Senate. Inclusion of the provisions seems to have encountered considerable opposition but to have 28 been finally approved after some political pressure. The Gadsden Treaty was not popular in Mexico. Those who accepted it for that country were regarded as having done some- thing treasonable. Money received from the United States under the agreement went for current expenses of the government and 27 not for services of the funded debt. Article VIII seems to have shared the opprobrium attaching in Mexico to the treaty gen- erally.

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INDEPENDENCE AND JURISDICTION OF STATES 145 Judah P. Benjamin and Emile La Sere, president of the Louisiana Tehuantepec Company sought what official assistance was avail- able. They secured and carried to Forsyth in Mexico City in- structions looking to the making of a new treaty which would confirm, extend, and make more specific the protection to be had under the eighth article. On July 17, 1857, Cass wrote to Forsyth concerning the idea of treaty extension of the protection (provided for in article VIII of the Gadsden Treaty) to all routes of communication "which may now or hereafter exist across the Isthmus": If the jealousy of the Mexican Government . . . should interpose an insurmountable obstacle the concluding portion of the article might be made to read:—"but upon failure to do this for any cause whatever, the Government of the United States may" extend its protection to all or any such routes, according to the 8th article of the Treaty of the 30th December between the United States and Mexico.28 As to the already acquired rights, Cass observed: Under our treaty with the republic of Mexico, of December 30, 1853, the United States have acquired a right of transit across the Isthmus which they will never, under any circumstances, abandon.29 This clearly implied that the United States in its public capacity, and not merely as a protector of its nationals, had a treaty right in connection with traffic over the isthmus. Answer- ing Mexican objections to a proposal of a new arrangement, Forsyth told the Mexican foreign minister, on September 15,1857, that, "if the granting of a permission by Mexico to the United States for the transit of her troops and munitions across the Isthmus be equivalent to a depreciation of Mexican rights of sovereignty over the territory, then Mexico has already, quo ad hoc, parted with that sovereignty." 30 On September 3 of the same year a Mexican decree declared the Sloo privilege null and void, but four days later there was an announcement of a new grant to 2 8 MS., Department of State, 17 Instructions, Mexico, no. In the same communication the minister said that the United States would under no circumstances yield a jot of the rights which it had acquired under the Gadsden Treaty, a declaration which proved to be as poor a prophecy as that of Mr.

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146 THE INTERNATIONAL LAW STANDARD the Louisiana Tehuantepec Company. The last article of the con- tract provided: "In case there should be any doubt or difference in the execution or interpretation of this privilege, it shall be decided by arbitrators and amicable compounders, one named by the government and the other by the company, who, before be- ginning their examination, shall name a third in case of disagree- ment. Against the decrees of these arbitrators and the umpire 81 there shall be no appeal nor recourse whatever." Forsyth's mission in Mexico came to an end without his secur- ing from Mexico a treaty which would have broadened the plan of the Gadsden Treaty so as to permit American protection of all routes across the isthmus and for any American company building a road there. The American minister believed that, had the matter not been complicated by reason of efforts to get ter- ritory, he could have secured for the United States a virtual pro- tectorate with military occupation of the Tehuantepec route and 32 the cession of a right of way across the northern part of Mexico. Effort looking to a new treaty continued. Churchwell, special agent in Mexico, sent to Wash- ington a memorandum in which Juarez, the Mexican leader, in- dicated willingness to grant to the United States perpetual rights 33 of way across the Isthmus of Tehuantepec.

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INDEPENDENCE AND JURISDICTION OF STATES 1 4 7 United States should decline to accept responsibility for assuring public order in Mexico there would be intervention from some other quarter. He reported that the Mexican foreign minister (Ocampo) had urged upon him the subject of a treaty of alliance between the two countries "for the support of Republican institu- tions in America," but "always in a spirit that evinced so little appreciation of the relative condition and power of Mexico and the United States that I have not felt myself encouraged to expect any practical result." On the intervention matter, McLane wrote: I have fully explained the traditional policy of the United States, in relation to interference with the domestic administration of another state, developing fully the idea that in no event would my government interfere with the internal concerns of Mexico unless for its own security or to protect and defend what was due to itself in the abstract 35 or in virtue of treaty stipulations. Despite these assurances, Ocampo would not agree to permit American protection of transit across Tehuantepec as a normal procedure. He was willing to consider American employment of armed forces, with the previous consent of Mexico, if Mexico should fail to protect. He also said that forces sent in should submit to Mexican authorities in all matters not related to the internal government of the troops, and that they should exercise no jurisdiction over the inhabitants or passengers on Tehuantepec except in the suppression of crimes actually being committed. Secretary Cass thought the consent of Mexico should not be neces- 36 sary in "cases of sudden emergency." The American Senate 8 5 MS., Department of State, 2 3 Despatches, Mexico, despatch of June 25, 1859.

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148 THE INTERNATIONAL LAW STANDARD rejected the McLane-Ocampo treaty, which would have permitted intervention, and the Gadsden agreement remained the only one 37 in force on the subject between the two republics. After the Mexican decree of 1857 annulling the Sloo concession, the Louisiana Tehuantepec Company exercised some of the rights which it had obtained, and transported mail across the isthmus in 1858. The Mexican government formally nullified the grant as 38 of October 15,1866. With the completion of the transcontinental railroad in the United States three years later, the Tehuantepec route was no longer to occupy the place of great importance which it had previously had in the minds of the expansionists. Completion of the Panama Canal in the twentieth century and discussion of a Nicaraguan route caused the Tehuantepec matter to recede further into the background, so far as American public interest was concerned. The Gadsden Treaty article with its apparent authorization of intervention continued in force until 1937, when a formal agree- 39 ment of the two countries officially terminated it.

those concerning the boundary (which, as has been seen, made

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I N D E P E N D E N C E AND JURISDICTION O F STATES 1 4 9 those concerning the boundary (which, as has been seen, made reference to international law), were not affected. Thus ended the legal effectiveness of a clause which had con- tained some rather high-sounding words. It does not appear from the record that the purpose of its inclusion in the treaty was prin- cipally to emphasize any elements of customary law. Even if the article in question had ever become "operative" in the sense of being made the occasion for forceful action by American authorities in Mexican territory, it is doubtful whether a rule of international law prohibiting or limiting such intervention would have conditioned the operation of the treaty provision. Multilateral Proscription in the Western Hemisphere To trace the evolution of ideas concerning the international legality of intervention is beyond the scope of the present chapter, which is limited to treaties that refer, in connection with inter- vention, to the international law standard. The Inter- national Court of Justice, in the course of its opinion in the asylum case between Colombia and Peru (decided in November 1950), noted that nonintervention was "one of the most firmly es- tablished traditions of Latin America." One of the means relied of Mexico that it relinquish such unexercised rights as the Gadsden Treaty may have conferred upon it to send its troops and munitions across Mexi- can territory, and to extend its protection to a work which, although origi- nally expected to be built by United States citizens, was actually under- taken and completed by the Government of Mexico after the concession of these citizens . . . had lapsed" (Department of State Press Releases, XVI, 238-239 [April 17, 1937]).

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150 THE INTERNATIONAL LAW STANDARD upon to establish and perpetuate this tradition has been the multilateral treaty. Treaty language employed has included some direct reference to law. Gustavo Guerrero of El Salvador to in- troduce, in plenary session of the Sixth International Conference of American States, a resolution setting forth that "no state has 42 the right to intervene in the internal affairs of another." After impassioned speeches in favor of the proposed resolution, Charles Evans Hughes made a statement regarding consideration of the proposal in committee and subcommittee, and in regard to the position of the United States. I am speaking of the occasions where government itself is unable to function for a time because of difficulties which confront it and which it is impossible for it to surmount. . . . it is a principle of international law that in such a case a gov- ernment is fully justified in taking action—I would call it interposition of a temporary character—for the purpose of protecting the lives and property of its nationals. 42 Report of the Delegates of the United States to the Sixth International Conference of American States ( 1 9 2 8 ) , p. The Committee on Public International Law, feeling, as a subcommittee's report expressed it, that "the making of a declaration which is wanting in the accord which gives weight to international law would fail of its purpose," had recommended further study.

INDEPENDENCE AND JURISDICTION OF STATES 1 5 1

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INDEPENDENCE AND JURISDICTION OF STATES 1 5 1 can read in text books that that is not intervention. But if I should subscribe to a formula which others thought might prevent the action which a nation is entitled to take in these circumstances, there might come later the charge of bad faith because of acceptance of a formula with one interpretation in mind while another interpretation of it is in the mind of those proposing the formula. . . . Of course the United States cannot forego its right to protect its citizens. No country should forego its right to protect its citizens. . . . we cannot codify interna- tional law and ignore the duties of states, by setting up the impossible reign of self-will without any recognition upon the part of a state of its obligation to its neighbors. I cannot sacrifice the rights of my country but I will join with you in declaring the law. The Convention on Rights and Duties of States, signed at Montevideo on December 26, 1933, contained five specific references to international law.44 Two of them had to do with states as persons, one with rights of states according to the law, one with state existence as dependent on the law, and another with the effect of recognition as an admission by the recognizing state of the recognized entity's "rights and duties de- termined by international law." For the present purpose the es- sential parts of the convention are article VIII, which states that "no State has the right to intervene in the internal or external affairs of another," and article XI, which, while not specifically referring to "international law," contains the following: The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or 48 Report of the Delegates, pp.

1 5 2 THE INTERNATIONAL LAW STANDARD

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1 5 2 THE INTERNATIONAL LAW STANDARD in any other effective coercive measure. The territory of a state is in- violable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.45 The subcommittee of the conference which considered the sub- ject agreed unanimously that it was "indispensable and essential definitely to establish the principle that no State has a right to interfere in the domestic or foreign affairs of another State."46 The formula was substantially that which the Argentine delega- tion had presented to the American Committee of Jurists at Rio de Janeiro in 1927.47 The subcommittee at Montevideo thought it necessary to construct a definition, and reported the following: Any act of a State, through diplomatic representation, by armed force, or by any other means involving effective force, with a view to making the State's will dominate the will of another State, and, in general, any maneuver, interference or interposition of any sort, employing such means, either directly or indirectly in matter of the obligations of an- other State, whatever its motive, shall be considered as Intervention, and likewise a violation of International Law.48 The discussion in committee furnished occasion for broad ob- servations on the general subject, and for unfavorable comments on the disposition at the Havana Conference of the resolution on intervention. 46 Seventh International Conference of American States, Minutes and Antecedents ( 1 9 3 3 ) , minutes of the Second Committee, p. To the commissions of jurists which that convention envisaged, the Third International Conference of American States recommended for special atten- tion the subjects and principles which had been agreed upon in conven- tions then existing, those which were then incorporated in the national laws of the American states, projects of earlier American effort, and "all other questions which give promise of juridical progress, or which tend to eliminate the causes of misunderstanding or conflicts. . . 48 Seventh International Conference, p. Prior to this, David Castro of El Salvador had said, of what the Havana Conference had done concerning nonintervention, that the work of the International Committee of Jurisconsults had been thrown

INDEPENDENCE AND JURISDICTION OF STATES 153

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INDEPENDENCE AND JURISDICTION OF STATES 153 extension of the Monroe Doctrine and to its abusive interpreta- 50 tion. Cuadro Pasos of Nicaragua asked support for the "holy principle of nonintervention, to the end of averting the com- promises of the Havana Conference," while Puig Casauranc of Mexico expressed satisfaction that the discussion was "free from 51 the subterfuges and timidities of Havana." The president of the Mexican delegation felt that the conference should reject as "sophisticated and not convincing" Mr. Hughes's "intelligent manner of explaining and justifying intervention as 'temporary interposition'"; as long as there was no "result of an agreement or reciprocal obligation," he considered the Monroe Doctrine "an 62 annoyance and a humiliation." Mr. Parra, of Ecuador, character- izing intervention as "a kind of war, disguised and wary," said that the Spanish American people had for a long time "main- tained these principles agreeing with the postulates of inter- 53 national law." Francisco de Campos, of Brazil, said that the principle maintained in article XI seemed to be a precept pacifi- cally accepted by all the countries of the American Continent. He went on to observe that the label "Rights and Duties of States," as used in the proposed convention, was not designed to cover the whole of international law. Reiterating the view which his country's representative had previously had occasion to express in the subcommittee, he submitted that the rule concerning non- intervention might better be placed in the part of codified inter- 54 national law which would relate to the organization of peace.

154 THE INTERNATIONAL LAW STANDARD

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154 THE INTERNATIONAL LAW STANDARD to be the "concretion not only of the American principle but 55 of a universal principle as well." Secretary Cordell Hull, in a speech which was to comprise the reservation of the United States, pointed out that "under the Roosevelt Administration the United States Government is as much opposed as any other government to interference with the freedom, the sovereignty, or other internal affairs or processes of the government of other nations." He expressed the hope that interpretations and definitions of fundamental terms in the report might be prepared at the earliest possible date. He asserted that in all of its international associations and relationships and con- duct the United States would scrupulously follow the doctrines and policies it had pursued since the preceding March 4 (which he said were embodied in the different addresses of President Roosevelt since that time, in his own peace address before the Montevideo Conference on December 15, and "in the law of 56 nations as generally recognized and accepted"). Later in the course of the discussion, Cuadro Pasos of Nicaragua referred to the commitment of the United States as being possibly ephemeral, since it rested on the policy of a "great Party." He observed that the "trouble" might revive when these particular leaders should no 57 longer be in power in the United States. The Convention on Rights and Duties of States finally became effective for the United States subject to the condition which Secretary Hull had expressed and which the American govern- ment included in a formal reservation. There was also a reserva- tion (concerning article XI) by Brazil and Peru, which sets forth that these states "accept the doctrine in principle" but "do not consider it codifiable because there are some countries which have not yet signed the Anti-War Pact of Rio de Janeiro of which this doctrine is a part and therefore it does not yet constitute positive 55 Ibid., pp. 57 Seventh International Conference of American States, p.

INDEPENDENCE AND JURISDICTION OF STATES 155

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INDEPENDENCE AND JURISDICTION OF STATES 155 international law suitable for codification." The Anti-War Pact (of October 10, 1933) had provided for the settlement of disputes or controversies by pacific means having the sanction of inter- national law; it had specified that, in the case of noncompliance with obligations in the convention, parties other than the non- compliant ones should exercise the political, juridical, or eco- nomic means authorized by international law. When it became bound by this anti-war convention, the United States government stated by means of a reservation that, in adhering, it did not 58 waive any rights under international law. This would apparently cover the kind of situation which the Brazilians and Peruvians had in mind when they made their reservation to the Montevideo Convention on Rights and Duties of States. Hull's reference at the conference to the "law of nations as generally recognized 58 and accepted." The government of the United States soon gave evidence of the administration's sincerity concerning nonintervention. By the time of the Buenos Aires Conference of 1936, the Latin American neighbors of the United States had some reason to expect an unconditional commitment on nonintervention. 69 The reservation which the United States made with respect to article IX of the same convention presumably had the effect of reserving this coun- try's rights under international law.

156 THE INTERNATIONAL LAW STANDARD

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156 THE INTERNATIONAL LAW STANDARD other party is inadmissable, and that any violation of the proto- col is to give rise to consultation.62 Making clear that interven- tion may constitute a threat to the peace of the continent, and providing for an orderly method of handling difficulties which previously might have led to intervention, die protocol estab- lished a kind of collective responsibility for finding peaceful solutions.63 Furthermore, the conference included, in its Declara- tion of Principles of Inter-American Solidarity and Cooperation, the proposition: "Intervention by one State in the internal or external affairs of another State is condemned."64 In an address shortly after the conclusion of the Buenos Aires Conference, Secretary Hull, after reviewing briefly the past policy of the United States in the matter, declared that he knew of no act of intervention undertaken by the United States which had accrued to the benefit of the American people, and that he was unable to find that the people of the countries in which interven- tion took place gained any other benefit than the temporary advantage which the imposed road construction or sanitation brought them.65 To allay the suspicion of the Spanish American peoples in regard to intervention was to take a step which facilitated the transformation of the Monroe Doctrine into a multipartite in- strument for mutual protection.88 Additional steps came in 1938. The Declaration of Lima in that year carried a reference to the principle previously adopted concerning nonintervention, with which the new solidarity was to be considered in harmony.87 Neither intervention as a means of territorial expansion, nor intervention as a means of protecting commercial and financial interests, nor intervention as a sanction, was specifically excepted from the proscription which the treaty structure of the Western 82 51 Stat. 63 Report of the Delegation of the United States to the Inter-American Conference for the Maintenance of Peace (1937), pp. 65 Address before the Academy of Political Science, April 7, 1937 (Depart- ment of State Conference Series 29, p. Fenwick, "The Monroe Doctrine and the Declaration of Lima," Amer. 87 Octava conferencia internacional americana.

INDEPENDENCE AND JURISDICTION OF STATES 1 5 7

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INDEPENDENCE AND JURISDICTION OF STATES 1 5 7 Hemisphere now contained. On April 15, 1943, the Under Secre- tary of State said, "Today any United States administration that undertook to intervene in the internal affairs of other American countries would . . . be guilty of outright violation of . . . part of our public law."6 8 In at least some quarters it was believed, however, that the new treaty commitments would not make illegal diplomatic efforts to secure reparation for injuries done to nationals, or joint protective action after the use of consulta- tion.69 President Roosevelt indicated clearly in 1938 that the United States would not "stand idly by" and permit a European govern- ment to menace its safety by fomenting a revolution in Latin America.70 The new American solidarity, which the principle of nonintervention was designed to promote, was soon tested in the face of danger from outside the hemisphere.71 L a t e in the course of World W a r II, and in the early postwar period, legal proscription of intervention again had a central 68 Department of State Bulletin, April 17, 1943, p. Cowles, "Joint Action to Protect an American State from Axis Subversive Activity," Amer. See generally, on the matter of intervention as a sanction, Ellen D. Ellis, "Intervention as a Sanction of International Law," Proc. Do you think that the United States could stand idly by and have this European menace right on our own borders?

158 THE INTERNATIONAL LAW STANDARD

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158 THE INTERNATIONAL LAW STANDARD place in Western Hemisphere conference discussions. The Act of Chapultepec (1945), after recording that the peoples of the Americas remained "sincerely devoted to the principles of inter- national law," set forth as one of the principles which the Ameri- can states had beep "incorporating in their international law, since 1890, by means of conventions, resolutions and declara- tions," the "condemnation of intervention by one State in the internal or external affairs of another."72 Later, when proposals were being made for what came to be the Inter-American Treaty of Reciprocal Assistance (1947), various American republics availed themselves of the opportunity to suggest that the prin- ciple of nonintervention be mentioned in it.73 While this was not done in so many words, the Treaty of Reciprocal Assistance se- cured the effect by its preambular reaffirmation of the parties' "adherence to the principles of inter-American solidarity and cooperation, and especially to those set forth in the preamble and declarations of the Act of Chapultepec, all of which should be understood to be accepted as standards of their mutual rela- tions and as the juridical basis of the Inter-American System." At the Ninth International Conference of American States, in 1948, intervention again came under discussion. The essential problem was to reconcile the principle of nonintervention, as pre- viously declared, with the American community's techniques for the maintenance of peace. At the same time there was a desire to proscribe intervention on the part of more than one state and to broaden the concept apparently inspired by observation of the type of "indirect aggression" that had occurred in Eastern Eu- rope.74 Articles 15 through 19 of the Charter of the Organization of American States record the result. By article 15, No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs 72 60 Stat. 74 Report of the Delegation of the United States to the Ninth International Conference of American States, Department of State Publication 3263 ( 1 9 4 8 ) , p.

INDEPENDENCE AND JURISDICTION OF STATES 159

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INDEPENDENCE AND JURISDICTION OF STATES 159 of any other State. The foregoing principle prohibits not only armed force, but also any other form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements. While article 16 proscribes the use by any state of "coercive measures of an economic or political character" in order to force the sovereign will of another state and obtain from it advantages of any kind, article 17 relates to the inviolability of territory, and in article 18 the "American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof." Article 19 seeks to keep these commitments within the treaty framework of collective security. It states that "measures adopted for the maintenance of peace and security in accordance with existing treaties do not con- stitute a violation of the principle set forth in Articles 15 and y ] " 75 The coming into force of the Bogota Charter would not, there- fore, be a move in the direction of narrowing the concept, but would simply establish, for the parties, an exception for action taken under other multilateral treaties for the maintenance of peace and security. c. Collective Action against Aggression Even if viewed merely as an exception to the prevailing rule of nonintervention, treaty acceptance of the legality of collective action against aggression seems likely to affect profoundly the development of the interna onal law standard. For the present purpose (i.e., that of seeing how it has affected the independence of states and their freedom from intervention), consideration may be limited to the nature and scope of aggression, the manner of determining that it has occurred, and the effect of such deter- mination upon the legal situation of a particular state in relation to the aggressor.

160 THE INTERNATIONAL LAW STANDARD

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160 THE INTERNATIONAL LAW STANDARD of hostilities in World War II, there was private effort in the United States toward projecting rules applicable in the event of 76 aggression. Official action, in the form of intergovernmental instruments to which the United States was a party, was to fol- low. Declaration XV of the Second Meeting of the Ministers of Foreign Affairs, at Havana, in 1940, was to the effect that any attempt on the part of a non-American state against the integrity or inviolability of the territory, the sovereignty, or the political independence of an American republic would be considered an 77 act of aggression against all the American republics. The Act of Chapultepec contained a statement to the same general effect, and, anticipating the establishment of a more general interna- tional organization than that in the Western Hemisphere, sought to relate the principle stated to the purposes and principles of 78 the former. In the same year (1945), the San Francisco Con- ference provided occasion for fuller discussion of the concept of aggression. It was submitted that the League of Nations had been able to define it when it had occurred, and the term itself had been found acceptable for use in the Charter (United Nations Conference on International Or- ganization [hereafter cited as UNCIO], Documents, VI, 345).

INDEPENDENCE AND JURISDICTION OF STATES 161

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INDEPENDENCE AND JURISDICTION OF STATES 161 tain kinds of activity as "aggression," and they thought it feasible and desirable to have similar provisions in the Charter.81 Several delegations were in favor of inserting clauses concerning terri- torial integrity and independence, while others, particularly Latin American ones, proposed that the Charter should set forth actions from which states should refrain in their relations with other states, such as direct or indirect intervention.82 A majority of Commission III, however, felt that a preliminary definition of aggression went beyond the possibilities of the Conference and the purpose of the Charter, progress in the technique of modern warfare making it difficult to define so as to cover all cases that might arise.83 The United States delegation, opposing the idea of listing in the Charter acts that would constitute aggression, sub- mitted that to enumerate all such acts would be impossible; it was further suggested that refusal of a state to comply with a decision of an international court had been improperly included (in a proposal of Bolivia) as aggression. In the American dele- gation's view there was no one kind of act that had been sug- 81 See the statement concerning treaties to which Czechoslovakia was a party (UNCIO, Documents, III, 468-469). See also the Philippine pro- posal of a fourfold category of acts, the first state to engage in any of which would be considered as "threatening the peace" or as an aggressor (ibid., p. 82 UNCIO, Documents, VI, 304, 558-559, 562. The Brazilian proposal included a mention of "excessively foreign influence." Since the word "intervene" appears in article II, paragraph 7, of the Charter, it is pertinent to the present discussion to note, not only that there has been no complete agreement on its meaning in that context, but also that the United States and three other major states (rather than the small states) proposed that the paragraph, with somewhat changed wording, be placed not in the chapter on pacific settlement (as it had been placed in the Dumbarton Oaks proposals) but in the chapter on Principles of the United Nations. Thus placed, such restricting force as the paragraph has would reach to all parts of the Charter (UNCIO Doc.

gested for inclusion as aggression which, in conceivable circum-

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1 6 2 THE INTERNATIONAL LAW STANDARD gested for inclusion as aggression which, in conceivable circum- stances, might not be a legitimate act of self-defense; even in the event of invasion by armed force, it might be difficult to deter- mine the aggressor, if there had been provocation on one side 84 which forced action on the other. The Conference decision not to list acts that would be con- sidered as aggression left the manner of determining aggression to designated United Nations agencies, and did not follow the proposal that the doing of certain things by one or more states would automatically impose obligations upon other members. In the meantime, however, the proceed- ings in connection with the Nuremberg trials furnished further occasion to consider the possible definition of aggression. In the negotiations which produced the Agreement for the Prosecution and Punishment of the Major War Criminals, and the Charter of the International Military Tribunal, the question of defining aggression arose in somewhat different circumstances. The representative of the United States apparently did not at first think it necessary to define aggression, but eventually concluded that it would be necessary for the formulators of the agreement, or for the tribunal, to define the concept on which it was pro- posed to predicate a charge of crime. Vandenberg seemed to anticipate later events when, at another point in the Conference pro- ceedings, he said, "We here recognize the inherent right of self defense, whether individual or collective, which permits any sovereign state among us or any qualified regional group of states to ward off attack pending ade- quate action by the parent body (ibid., XI, 53).

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INDEPENDENCE AND JURISDICTION OF STATES 163 sirable to rely on definitions in previous documents or leave the defining to the United Nations. "Aggression," he said, had be- come a kind of formula in itself. The French negotiator thought that there were sufficient documents in international law defining aggression and that a definition in the Nuremberg Agreement and Charter might not agree with what might ultimately be 85 worked out by the United Nations. The result of the disagree- ment was the inclusion in article 6(a) of the Nuremberg Charter of a reference to "a war of aggression," but the omission from the instrument of a definition of the concept. A comprehensive definition was not supplied by the tribunal at Nuremberg. At the trial of the major war criminals, the chief prosecutor for the United States suggested that, while it was perhaps a weakness of the tribunal's charter that it failed to define a war of aggression, an aggressor was generally held to be that state which should be the first to commit any of four 86 listed actions. He submitted that by this test each of the series of wars begun by the Nazi leaders under indictment was "un- ambiguously aggressive." The chief prosecutor for the United Kingdom, in turn, after referring to some past moves toward defining the concept, said that there was "no definition of aggres- sion, general or particular, which does not cover and cover abundantly and irresistibly in every detail, the premeditated onslaught by Germany on the territorial integrity and political 87 independence of so many sovereign states." The tribunal itself, holding that its charter was "not an arbitrary exercise of power 85 Report of Robert H.

on the part of the victorious Nations, but . . . the expression of

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1 6 4 THE INTERNATIONAL LAW STANDARD on the part of the victorious Nations, but . . . the expression of international law existing at the time of its creation" and, "to that extent, a contribution to international law," declared that to initiate a war of aggression was not only an international crime but the supreme international crime. Of preventive action in foreign territory, such as the Germans claimed to have taken in Norway, it said that "whether action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced." War for the solution of international con- troversies undertaken as an instrument of national policy was 88 found to include a war of aggression. The failure to adopt any hard and fast definition of aggression did not detract from the far-reaching effect of the Nuremberg decisions. That the idea of legal action against aggression was to be a central element in the treaty law of the United States was demonstrated in the signing of the Inter-American Treaty of Re- ciprocal Assistance in 1947, which came into effect on December 3, 1948. Like the Act of Chapultepec, this treaty provides for meeting aggression from within or from without the Western Hemisphere, and declares the principle that an armed attack by any state against an American state shall be considered an attack against all the American states. It distinguishes between an ag- gression which is not an armed attack and other aggressions.

INDEPENDENCE AND JURISDICTION OF STATES 165

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INDEPENDENCE AND JURISDICTION OF STATES 165 provide for consultation in the event of a situation that threatens the security of the parties. The Rio Pact goes further, in that it has provisions concerning voting in the organ of consultation, specifies the measures which that organ may agree upon, and has some provisions on procedures to be followed in the event 90 of conflict between the parties themselves. Events beginning in Korea late in June 1950 were to afford convincing evidence that aggression is more than a mere concept. The United Nations Security Council's finding of aggression on the part of North Korea, and, after the adoption late in 1950 of the Uniting for Peace Resolution, the finding by the Assembly in 1951 of aggression on the part of Communist China, provided occasion for a Examination of the principle of nonintervention in relation to commitments for collective security. The problem of reconciling the two was before the ministers of foreign affairs of the American states at their meeting at Washington in March and April 1951. The preamble of the Declaration of Washington set forth that the conference had been called because of the need for prompt action "against the aggressive activities of inter- national communism," activities that were declared to be "in dis- regard of the principle of non-intervention, which is deeply rooted in the Americas." The foreign ministers declared, inter alia, that the world situation required positive support by the American republics for cooperation "to prevent and suppress ag- gression in other parts of the world." At the same time, they looked to collective defense within the hemisphere which would not involve a departure from the traditional attitude toward non- 81 intervention.

It would be highly unrealistic to consider today the standard

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1 6 6 THE INTERNATIONAL LAW STANDARD It would be highly unrealistic to consider today the standard which is international law without taking into account what the law has at length come to contain concerning aggression. After the United Nations General Assembly had directed the Inter- national Law Commission to formulate the "principles of inter- national law" recognized in the charter of the Nuremberg tribunal and in the judgment, the Commission proceeded upon its task of formulation after concluding that the Assembly had affirmed the Nuremberg principles and that the task entrusted to the Commission was that of formulating, not of expressing "any appreciation of these principles as principles of international 92 law." 2 . TERRITORIAL WATERS: THE THREE-MILE LIMIT When they occur in connection with the extension, beyond ordinary limits, of the right to use state control over foreign merchant ships, jurisdictional arrangements may require adapta- tion to the preöxisting law which sets the normal limits. In the third decade of the twentieth century the United States made a group of sixteen treaties in which it gave up the right to enforce to the limit, with respect to merchant vessels under flags of cer- tain other countries, a municipal statute. The statute in question was pursuant to an express constitutional provision. The United States Supreme Court had said that the legislation was applicable to foreign vessels coming into American waters.

INDEPENDENCE AND JURISDICTION OF STATES 167

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INDEPENDENCE AND JURISDICTION OF STATES 167 may exercise in the waters off its coasts. Within a few years after conclusion of the "liquor" treaties, similar questions were to be the subject of discussion at a conference of states seeking to codify international law relating to territorial waters. Still later, the international law standard was to figure in discussions regarding waters over the continental shelf. The rule concerning the three-mile limit antedates the estab- lishment of the United States as a nation.94 Acceptance of the general rule did not set at rest all the questions which were to arise, and there soon came to be assertions of rights in a wider area of coastal waters. Attorney General Edmund Jennings Ran- dolph in 1793 observed that "the necessary or natural law of nations . . . will, perhaps, when combined with the treaty of Paris of 1783, justify us in attaching to our coast an extent into the sea beyond the reach of cannon-shot."95 In 1804 Chief Justice John Marshall in the case of Church v. Hubbart offered a justifi- cation for a state's claiming a right to control to such distance from its shore as might be necessary for its protection, including the enforcement of such municipal laws as those against smug- 94 At the Hague Codification Conference in 1930, Sir Maurice Gwyer, British delegate, said: "I am not prepared to argue that the rule of three miles has existed from the beginning of all things, even though its existence was not revealed to the human race until a comparatively recent date . . .

gling. ® As one writer has put it, the rule of Church v. Hubbart

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1 6 8 T H E INTERNATIONAL L A W STANDARD 9 gling. ® As one writer has put it, the rule of Church v. Hubbart has been approved rather than applied, probably because there were more convenient bases or doctrines at hand which municipal courts might utilize when passing upon the legality of protective 97 activity beyond the three-mile limit. It has been seen that the United States emphasized the prin- ciple of freedom of the seas when its official view was that plans for reciprocal visit and search of vessels suspected of engaging 98 in the slave trade would jeopardize the principle. In the Bering Sea arbitration in the last decade of the nineteenth century, the tribunal held to a rigid rule, which it applied against the United States, asserting liability for forceful action against vessels of a 99 foreign state outside territorial waters. In 1923 the United States Supreme Court in the case of Cunard Steamship Company v. After receipt of one of these protests—that from Mexico—Secretary of State Hughes sent the following directive to the American diplomatic representative in Mexico City: You are instructed informally to state to the appropriate authorities of the administration now functioning in Mexico that this Government cannot undertake to discuss the legality, in an international sense, of the operation of an Act of Congress, the scope of which, within the territorial limits of the United States, has been authoritatively deter- mined by the Supreme Court of the United States."2 9 6 2 Cranch 187.

INDEPENDENCE AND JURISDICTION OF STATES 169

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INDEPENDENCE AND JURISDICTION OF STATES 169 The sixteen treaties which soon followed contained provisions looking to the arbitration of questions, if any of the states which had contracted with the United States should claim that this country's rights under the treaties had been overstepped. Each of them also contained the provision that, "in the event that either of the High Contracting Parties shall be prevented either by judicial decision or legislative action from giving full effect to the provisions of the present Treaty, the said Treaty shall auto- matically lapse, and . . . whenever this Treaty shall cease to be in force, each High Contracting Party shall enjoy all the rights which it would have possessed had this Treaty not been con- ω3 cluded." Six of the treaties in this group make use of the international law standard by committing the parties to a recognition of the 104 three-mile limit as the established one, while each of the others makes clear that the conclusion of the agreement does not com- mit the parties to this or any other precise limit. In view of the fact that universal agreement has so far been practically achieved only on the proposition that the three-mile limit marks the mini- mal extent of territorial waters, it cannot be said that the law on this subject is settled, especially when it has bearing upon im- 105 portant interests, such as fisheries. Even with a minimal width 106 of the coastal sea agreed upon, there are, admittedly, limits to 103 There was a further provision whereby either party might, three months before the expiration of any year of the duration of the treaty, give notice of a desire to propose modifications; if such modifications should not be agreed upon before the expiration of the year referred to, the treaty was to lapse. 104 These were, in addition to the British treaty already mentioned, those with Germany (43 Stat. On the significance of the treaty statements concerning the three-mile limit, see Gilbert Gidel, "La Mer territoriale et la zone con- tiguö," RecueU des cours, XLVIII (1934), 133-278, at 182.

what a state may lawfully do to merchant vessels under the flags

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1 7 0 THE INTERNATIONAL LAW STANDARD what a state may lawfully do to merchant vessels under the flags of other states passing through its jurisdictional waters.107 The authority which any coastal state has over such vessels is, how- ever, rather extensive. The relaxation of a particular part of it may represent a concession which is not required by international law. The delegate of the United States in the Second Committee of the Hague Codification Conference in 1930 expressed this idea when he said: I wish . . . to point out that the necessity for the enforcement of the law of the coastal State is obvious, and that the situation of various countries in this respect—the situation of the United States of America, in particular—has led us to conclude certain treaties which are well known to you all and which have given us some opportunity to sup- press, or at least to limit, the evil activities of would-be criminals whose position can have no merit in any sense or in any view. It is the opinion of the Government of the United States of America that this ancient and well-established policy might be recognized in a general rule. . . .108 It has been claimed for the so-called "liquor" treaties that they have the merit of recognizing the separability of full juris- diction (in the sense of complete control and responsibility to others for what happens) and protective control, which may be conceded with a particular object or with respect to a particular interest.109 Discussion at the Hague Codification Conference re- vealed a strong sentiment for a "contiguous" zone, beyond the legal limits of the territorial waters, in which there could right- fully be protective measures by the shore state in the sense sug- gested. It did not prove possible, however, to reach agreement upon the principle of such a zone. Some of the difficulties are set ment, or unanimoijs expression, as to its width, and the modem practices of states certainly rest upon this idea" (ibid., p.

INDEPENDENCE AND JURISDICTION OF STATES 1 7 1

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INDEPENDENCE AND JURISDICTION OF STATES 1 7 1 forth in the report that the Second Committee adopted on April 10, 1930, which is, in part as follows: The first question to be considered was the nature of the rights which would belong to the coastal States in such a zone. It need scarcely be said that States would still be free to make treaties with one another conferring special or general rights in a wider zone—for instance, to prevent pollution of the sea. Other States, however, were of opinion that, in Customs mat- ters, bilateral or regional agreements would be preferable to the making of collective Conventions, in view of the special circumstances which would apply in each case. These States were opposed to granting the coastal State any right of exercising Customs or other control on the high seas outside the territorial sea, unless the right in question arose under a special Convention concluded for the purpose. The opposition of these States to the establishment of such a zone was further strength- ened by the possibility that, if such rights were accorded, they would eventually lead to the creation of a belt of territorial sea which in- cluded the whole contiguous zone. Other States declared that they were ready to accept, if necessary, a contiguous zone for the exercise of Customs rights, but they refused to recognize the possession by the coastal State of any rights of control with a view to preventing interference with its security.

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172 THE INTERNATIONAL LAW STANDARD 111 than a full, general jurisdiction. By consenting to have the United States authorities visit and search suspected vessels under their respective flags out to a distance beyond the traditional limit of territorial waters, the other contracting parties at least waived the right to challenge such protective activity as illegal (provided it is done in the manner which the treaties contem- plated). The treaties as a whole represented a practical handling of a situation which was complicated by reason of the lack of com- plete agreement upon the points of law involved and which, at the same time, called for action that would protect the national 112 interests of each state concerned. That the instruments repre- sented no permanent or very serious relinquishment of rights under general international law is suggested by the provisions concerning termination. Limited as is the plan of the treaties to coastal waters and a relatively narrow extent of waters imme- diately contiguous thereto, the instruments do not record any more far-reaching departure from accepted rules of international 114 law than did the Convention of July 7,1911, on Pelagic Sealing or the more recent agreements with Canada concerning halibut 115 and sockeye-salmon fishing. The 111 Gidel, he Droit international public de la mer, III, 364.

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INDEPENDENCE AND JURISDICTION OF STATES 173 117 international arbitration of the I'm Alone case, which came up under the first of these treaties, provided no authoritative, clarify- ing pronouncement upon the subject of "hot pursuit" from terri- torial waters onto the high seas, and resulted in no contribution of substantial importance to the body of international law against the background of which the parties contracted in those treaties. Experience under the treaties affords little if any assistance toward an answer to the very fundamental question of how far states may go in waiving rights 119 under international law. Since the treaties were concluded there has been substantial progress toward an effective world organization which may, ultimately, itself determine the limits within which states may waive their normal rights. It could reasonably concern itself, for example, with whether mergers of states or transfers of territory are with the free consent of the peoples concerned, whatever appearance of consent through treaties there may be. That the international law standard still has an important place in the policy of the United States in the subject matter to which the 'liquor" treaties principally relate is indicated by its denial that conservatory measures with respect to the continental shelf can have the legal effect of extending the limits of territorial waters or bringing the air space over the open sea under the 117 Department of State Arbitration Series, no. 12, 63, to the effect that states are still free to replace, in their relations inter se, any rule of customary law by other rules, and that it would be premature to overemphasize the desirability of developing principles which might limit this process.

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174 THE INTERNATIONAL LAW STANDARD 120 exclusive control of any national state. That what the standard requires is still the subject of some disagreement would seem to be reflected in a provision of the Northwest Atlantic Fisheries Convention (effective July 3, 1950). This convention contains the provision that nothing in it "shall be deemed to affect ad- versely (prejudice) the claims of any Contracting Government in regard to the limits of territorial waters or to the jurisdiction 121 of a coastal state over fisheries." 1 2 0 See, for example, the note from the United States government to that of El Salvador concerning definition of territorial sovereignty, Department of State Bulletin, January 1, 1951, p. The note had reference to the appli- cation of certain provisions in the 1950 Constitution of El Salvador. There were ten signatories in addition to the United States.

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C h a p t e r V WAR AND NEUTRALITY M a n y provisions of United States treaties have related to war or neutrality, but not all of them have made express reference to the international law standard. Furthermore, where there has been a policy of seeking adoption of a specific rule by the na- tions generally, the treaty makers have not usually sought their objective by proceeding upon the assumption that the desired rule was already a part of established international law. Thus the rule of "free ships, free goods," incorporated in the first com- mercial treaty of the United States,1 and marking a departure from what had been laid down in the Consolato del Mare some three centuries earlier,2 was proposed and secured in relation to individual foreign countries long before it secured anything like universal acceptance.3 It has sometimes been stated officially, of certain treaties which 1 Miller, Treaties, II, 21, article 25 (23) of the commercial treaty with France. On the respective positions of the French and the Americans on what the treaty should contain, see Vemon G. Setser, The Commercial Reci- procity Policy of the United States, 1774-1829 (1937), pp. On the point that, prior to the Declaration of Paris, treaty clauses on the subject merely bound the parties thereto in relation to each other and did not change-the generally accepted law, see Carlton Savage, Policy of the United States toward Maritime Commerce in War (1934), I, 114-115.

1 7 6 THE INTERNATIONAL LAW STANDARD

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1 7 6 THE INTERNATIONAL LAW STANDARD do not in terms refer to customary international law, that they are "but declaratory of the law of nations."4 On the other hand, as has been seen, the treaties have often referred to the inter- national law standard without trying to set forth the law existing on the particular points.5 The present chapter will consider adaptations to the standard ( 1 ) in provisions concerning the conduct of hostilities, and par- ticularly in connection with the effort to regulate uses of sub- marines in war, ( 2 ) in provisions on neutral duties as they provided occasion for what is perhaps the most celebrated arbitra- tion in United States history, and ( 3 ) in certain statutory and treaty provisions that reflect a changing concept of neutrality. REGULATION OF CONDUCT OF HOSTILITIES a. Development in General The justification for effort to secure conventional agreement upon rules governing the conduct of hostilities has received much attention. According to one view, international jurists have in the past been too much concerned with such effort, and too little aware that as long as war was recognized as legal, it was futile to try to frame rules for its conduct.® An opposing view has urged that the law does not bring about human activities but merely recognizes and attempts to regulate them, and that it is humane and desirable to keep the operations within the bounds of some rules in order that war may not become indiscriminate ruthless- ness.7 In general, foreign offices seem to have proceeded upon 4 7 Op. The occasion was a discussion of foreign enlistments in the United States, with particular reference to a convention of 1815, as continued by conventions of 1818 and 1827. Prior to this, an Attorney General had "conceived to be declaratory of the usage of nations" the twenty-third article of the Jay Treaty concerning hospitality in ports for ships of war (1 ibid.

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WAR AND NEUTRALITY 1 7 7 the assumption that there could be useful and desirable regula- tion. Schemes for collective security would seem to imply ordered operations rather than unregulated procedures against peace- breakers or aggressors. At the same time, many of the technical rules which in the nineteenth and early twentieth centuries came to apply as between belligerents and neutrals would presumably need to be brought into conformity with the idea of differential treatment of belligerents. Principles of collective security have not meant the abolition of rules intended to secure humane treatment for combatants taken prisoners, of prohibitions upon the general confiscation of private property in occupied territory, or of restrictions upon the slaughter of persons who are not 8 combatants. If it is admitted that some rules are desirable, the form which they shall take becomes a practical question. Kunz, "The Chaotic Status of the Laws of War and the Urgent Necessity for Their Revision," Amer.

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1 7 8 THE INTERNATIONAL LAW STANDARD against unanticipated methods of an enemy.10 There is, in addi- tion, the inevitable strain upon all such rules which develops with the exigencies of the contending parties. Mentions of general interna- tional law in the Hague Conventions attest the background of custom against which the agreements were intended to be con- structed.11 The reference may be to "laws of war" rather than to international law generally, as in article VII of Hague Conven- tion X of 1907.12 On such subjects as contraband of war, it has- been difficult to assure that specific enumeration of articles would be limitative so as to restrict the parties more than would preexist- ing rules and usages.13 10 Cf. the reference by the Secretary of State (Stimson) on August 5, 1932, to "new agencies of destruction turned loose under the sanction of international law" (For. 2277, 2280), with its reference in the preamble to principles of the law of nations as they result from usages established among civilized nations, laws of humanity, and the exigencies of the public conscience, was thought sufficient to make illegal such acts during the First World War as German deportation of French and Belgians for forced labor (Jules Basdevant, Les Deportations du nord de la France et de la Belgique en vue de travail force et le droit international [1917]; J. Garner, International Law and the World War [1920], II, 184; see also Chapter I, note 61, supra, and note 23, infra). 13 Cf. the statement of Attorney General Philander Chase Knox in 1902: "Each new case that arises seems to present new difficulties, and because it is new the nation interested in carrying on the commerce argues from that part of international law which is based upon express treaties and distinct precedents, and affirms that it cannot be shown by the actual practice of nations and by treaties that all nations have recognized that such a transac- tion as is in question is prohibited by the common consent of nations" (24 Op. United States, which was brought under the Franco-American treaty of January 15, 1880: "The doctrine and policy of nations as to what is and what is not contraband advance and recede according to their necessities as belligerents or their interests; but the doctrines of international law must stand upon principle to command the assent and respect of mankind" (Moore, Inter- national Arbitrations, IV, 3313n.).

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WAR AND NEUTRALITY 179 14 There is much treaty material concerning contraband. The sum of the treaties concluded and of the precedents accumu- lated up to 1939, apparently did not seem to the American State Department such as would justify arbitrary extension of contra- 15 band lists by belligerents in World War II. In connection with regulation of the conduct of hostilities on land, the role of the United States in helping to establish upon a treaty basis the substance of Francis Lieber's Instructions, ap- proved by President Lincoln in 1863 as General Order No. 100, is too well known to require extended comment. This codifica- 16 tion "apparently excited efforts on a larger scale in Europe." The first of the significant efforts in Europe, in which twenty- three states had part through conferences at Geneva in 1864 and 1868, was directed toward humane treatment of the wounded and to rules concerning agencies of mercy. 1 7 An English translation of the draft declaration concerning the laws and customs of war, as adopted by the Conference of Brussels, August 27, 1874, is in A.

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180 THE INTERNATIONAL LAW STANDARD discussions which seemed to bear upon principles of international 18 law not already generally accepted. The Institute of Interna- tional Law, which soon after this gave detailed consideration to the rules and approved a revision of the declaration, expressed the opinion that, as compared with the code of Lieber, it con- tained new requirements at once practical, humane and pro- 19 gressive. Illustrative of the skepticism of the time, concerning the principles against the background of which this declaration stood, was a statement in a pamphlet published in the same year. The writer of this pamphlet seemed to think there was "no gen- erally recognized international law, in spite of the nonsense 20 talked . . . about the danger of altering what does not exist." Although the United States did not sign all of the Hague Con- ventions of 1907, this country had an important part in the gen- 21 eral effort. The rules of Hague Convention V received applica- 22 tion through municipal courts, although that convention, like others signed at The Hague, by its terms did not apply "except between contracting powers, and then only if all the belligerents are parties to the convention." Nearly four decades later the Nuremberg tribunal was to find, after it had noted that Hague Convention IV had expressly stated that it was an attempt "to revise the general laws and customs of war" which it recognized to be then existing, that "by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were re- garded as being declaratory of the laws and customs of war which 18 For. 938 [1913]), in which the court held that Hague Convention V was self-executing and should be applied by American courts; L'Affaire Krug (Journal du droit international [Clunet], 1919, p.

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WAR AND NEUTRALITY 181 23 are referred to in Article 6(b) of the [Nuremberg] Charter." As is well known, many questions were left unsettled by the Hague Convention rules, and, on some of these, precedent and usage afforded no very satisfactory guidance. Rules to regulate the conduct of maritime war, for example, remained sadly defi- cient. The Declaration of London (February 26,1909) was partly the work of American jurists, and in the First World War the United States sought assurances from the principal belligerents that the rules of that unratified instrument would be observed. In 1929 the United States participated in the drawing up of rules, some of which were apparently declaratory and others new, on the subject of prisoners of war. Parties to the Conven- tion of July 27,1929, on that subject were "desirous of developing the principles which inspired the international conventions of 25 The Hague." In prohibiting reprisals against prisoners, the treaty makers took a step in advance of what had previously been accomplished, and in avoiding the possibility of technical in- applicability because not all of the belligerents in a particular war were parties, the states participating closed a gap which had 26 existed under the plan of the Hague Conventions. Thus, more 23 Trial of the Major War Criminals, I (1947), 253-254.

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182 THE INTERNATIONAL LAW STANDARD than fifteen years before the Nuremberg trials, was laid a firmer legal basis for "war crimes" growing out of acts contrary to "legislative" conventions restricting methods of conducting hos- tilities. It has been seen that, in the revision of 1949, the rules regarding prisoners of war were related to preöxisting conven- 27 tional and customary law. Discussion of the 1925 Protocol on Poison Gas and Bacterio- logical Warfare evoked the opinion that while the undertaking in article I to abstain from the use of poison gases could normally be observed only subject to reciprocity, the undertaking to ab- stain from the use of bacteriological warfare should be absolute. "The use of such methods would, in any case, constitute a crime 28 against international law." One field of law on which practically no conventional rules had evolved prior to the beginning of the European war in 1939 was that relating to aircraft and their use in war. There was able American representation on the commission of jurists which, after the Washington Conference of 1921-22, examined this subject (and that of radio in war). The commission prepared draft rules 29 which did not find adoption, although the United States re- garded the jurists' report as "a satisfactory basis for elaboration" and by 1932 had made "several efforts to persuade other nations 30 to conclude a convention" which would put the rules into effect. Prisoners of War (1942), and by Auguste-Raynald Werner, La Croix-Rouge et les conventions de Geneve (1943), especially pp.

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Use of Submarines The foregoing brief statement concerning effort to make inter- national rules on the conduct of hostilities, and concerning par- ticipation by the United States in such effort, affords some back- ground for a more detailed consideration of attempts at law making on a particular subject, that is, the submarine and its use as a destroyer of commerce. In this connection the United States participated in an effort to project rules of law and to obtain for them universal acceptance. At the Washington Conference on the Limitation of Armament, 1921-22, the British, who had suffered grievously from the use of the submarine in the First World War, denounced the weapon as one "of murder and piracy, involving the drowning of non- combatants." The device was "certain to be abused" and not 31 32 "consistent with civilization." The so-called Root treaty, which was defective in its drafting, failed to obtain ratification, and the 33 matter was left for the London Naval Conference of 1930. In part IV of the three-power treaty of that year, the parties con- tracted that "in their action with regard to merchant ships, sub- marines must conform to the rules of International Law to which surface vessels are subject"; in a separate paragraph they pledged themselves to invite all other powers to express their assent to 34 the agreed rules. The question of the abolition of the sub- Georg Röhrig, Die Ziele selbständiger Luftangriffe (1938), pp. Jessup, "International Law and Totalitarian War," Amer.

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184 THE INTERNATIONAL LAW STANDARD marine had been before the conference at its fourth plenary ses- sion. Spokesmen for the British Commonwealth and the United States supported this drastic move, but France and Japan op- posed, on the ground that the submarine was a legitimate defen- sive weapon and especially valuable for states with small navies. Italy, not taking a strong stand for any particular disposition of the question, intimated that abolition would be much more favor- ably considered if the abolition of capital ships were also agreed upon. The effort to secure agreement on abolition having failed, the heads of delegations instructed the first commission of the conference to draw up rules intended to "humanize" the sub- marine. The resulting rules, which had the unanimous support of the experts, were accepted without dissent by the First Commit- 35 tee as established rules of international law. In their action with regard to merchant ships, submarines must con- form to the rules of international law to which surface vessels are subject.

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WAR AND NEUTRALITY 185 Hearings before the Senate Committee on Naval Affairs elic- ited various opinions from naval men concerning the treaty's part IV. Calling article 22 "the work of the legal men," Admiral Wil- liam V. Pratt said that it was "just trying to move along certain lines" by saving as much of the unratified Root treaty as the French would assent to; the admiral's opinion was that the nego- tiators would not have reached an agreement on anything if they had tried to go beyond the first two articles of the former instru- 37 ment. Another opinion was that the provisions concerning sub- marines were "hopelessly indefinite" and that the first paragraph of article XXII would have been complete in itself and would 38 have taken care of the situation as well as it could be done. The question of arming merchant ships naturally came in for atten- tion; Admiral Ridley McLean, who would have favored a "world abolition" of the submarine, although he said he realized that this would have been impracticable, thought the most effective step toward humanizing the use of submarines in war would have been a prohibition of the arming of merchant vessels on peaceful missions; he was afraid of the treaty because it did not go far 39 enough. It will be recalled that during the World War it was a violation of international law by submarines 87 Hearings on London Naval Treaty of 1930, Senate Committee on Naval Affairs, 71st Cong., 2d Sess., May 14, 15, 16, 19, 21, 22, 23, 26, 27, 28, 29, 1930 (1930), at pp.

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186 THE INTERNATIONAL LAW STANDARD operating against commerce which formed the basis of the repeated American protests. Such laws then existed, still exist, and the framers of the London treaty have done no more than rather ambiguously to state them, and the uncertain statement affords no special reason for 40 the ratification of the treaty. At the Naval Conference of 1935 in London, there was endorse- ment of the idea of "humanizing" submarine warfare in the manner followed in article IV of the 1930 treaty. However, the conclusion reached was that rules on this subject should not be 41 placed in the general treaty, as they had been in 1930. When the treaties for limitation of naval armament ceased to be in force (after denunciation by Japan in accordance with the treaty terms), the particular rules of article XXII survived this termi- nation and were incorporated in a separate protocol of 1936. The three signatories of the 1930 treaty became parties, as did also France, the British Dominions, and Italy, with the idea, as re- ported in the press at the time, "that the rules will eventually become embodied in international law as universally accepted 42 and binding in perpetuity." The protocol recites that, by the terms of the old article XXII, the contracting parties invited all other powers to express assent to the rules, and continues: Whereas all the signatories of the said Treaty desire that as great a number of Powers as possible should accept the rules contained in the said Part IV as established rules of international law; The Under- signed, representatives of their respective Governments, bearing in 40 Limitation and Reduction of Armament, Minority Views, Sen.

WAR AND NEUTRALITY 187

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WAR AND NEUTRALITY 187 mind the said Article 22 of the Treaty, hereby request the Govern- ment of the United Kingdom of Great Britain and Northern Ireland forthwith to communicate the said rules as annexed hereto, to the Governments of all the Powers which are not signatories of the said Treaty, with an invitation to accede thereto definitely and without 43 limit of time. The original treaty plan for securing general acceptance of the rules was carried out. At least thirty-five states besides the original signers, including all of the principal maritime powers, gave assent. There was no serious question of divergent interpreta- tion to delay the projection of the protocol provisions. There re- mained, however, the serious question of what utility the rules would have in the absence of agreement on the subject of armed merchant ships. The status of armed merchant ships remained in doubt during the First World War.

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188 THE INTERNATIONAL LAW STANDARD When becoming a party to the Havana Convention of 1928 on Maritime Neutrality, the United States did not accept that part of the convention which provided that armed merchantmen of belligerent countries which might come into neutral ports and ter- ritorial waters should be assimilated to warships and treated accordingly.48 As already seen, the subject did not come up for actual settlement at the conferences on.limitation of naval arma- ment in 1921-22, 1930, or 1935. The period of the civil strife in Spain (1936-1938) furnished occasion for pronouncements con- cerning submarines. In the Nyon Arrangement between nine states, adopted September 14, 1937, submarine attacks upon merchant vessels were branded as "acts contrary to the most ele- mentary dictates of humanity, which should be justly treated as acts of piracy."49 The old idea of a defensive armament's being permissible and making no difference in the status of a commercial vessel appears again in a clause of the Declaration of Panama, October 3, 1939, by which the parties agreed not to assimilate to warships belligerent armed merchant vessels if they do not carry more than four six-inch guns mounted on the stern, and their lateral decks are not reinforced, and if, in the judgment of the local authorities, there do not exist other circumstances which reveal that the merchant vessels can be used for offensive purposes.60 It was inevitable that, with the outbreak of the Second World War, employment of submarines should lead to differences re- garding its legality. In the opening months of the war the Ger- man government announced that it had the right to sink on sight all armed merchantmen of the enemy nationality,51-and early in 48 47 Stat. Law, XXXI, Supp. ( 1 9 3 7 ) , 179; G. Wilson, "The Submarine and Place of Safety," ibid., XXXV ( 1 9 4 1 ) , 496-497.

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WAR AND NEUTRALITY 189 1940 it began to establish "operation areas" in which neutral ships were to be sunk without warning. This did not deter the British from following their policy of arming merchantmen, in many cases convoying them, and giving them orders to send position reports upon sighting submarines. While American neutrality legislation sought to keep United States merchant ships out of danger zones in the early part of the Second World War, charges of illegal uses of the submarine were eventually forthcoming from the United States. In a message to the Congress of the United States, President Roosevelt charged that a German submarine on May 21, 1941, sank the Robin Moor without showing its flag or announcing its nationality, and with- out making provision for the safety of passengers and crew. "The total disregard shown for the most elementary principles of in- ternational law and of humanity," said the President, "brands the sinking of the Robin Moor as the act of an international outlaw." Viewed in the light of the circumstances, the sinking was con- 63 sidered a "disclosure of policy as well as an example of method." In the same message the President told Congress that the Amer- passenger steamers in the early part of the war, see Kurt Assman, "Why U-boat Warfare Failed," For. 52Borchard, "Armed Merchantmen." In its draft on Rights and Duties of Neutral States in Naval and Aerial War (Amer. Law, XXXIII, Supp. [1939], 169-817), formulated on the eve of the Second World War, the Harvard Research in International Law proposed (pp.

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1 9 0 THE INTERNATIONAL LAW STANDARD ican government believed that "freedom from cruelty and in- human treatment is a natural right."54 The rules that had been projected in 1930 and 1936 did not avert sinkings without warning. The legality, under international law, of acts of the German leaders who had directed their coun- try's submarines was before the Nuremberg tribunal in the case of Doenitz and in that of Raeder. The former testified that the German navy remained at all times within the confines of inter- national law and of the 1936 protocol, that the German Prize Ordinance of the beginning of the war was taken almost literally from the protocol, that he had ordered U-boats to attack all mer- chant ships in convoy and all that refused to stop or used their radios upon sighting a submarine, and that when his reports indi- cated that British merchant ships were being armed and were attacking submarines on sight, he ordered his submarines (on October 17, 1939) to attack all enemy merchant ships without warning, on the ground that resistance was to be expected.55 Evidence brought out that the British Admiralty armed its mer- chant ships, in many cases convoyed them, and gave orders to merchantmen to send position reports upon sighting submarines. As to the operational zones and the German sinking of merchant vessels therein, the tribunal found that, since the protocol of 1936 made no exception for such zones, Doenitz's orders con- stituted a violation of the protocol. It reached a similar conclusion regarding the admiral's orders that rescue provisions should not be carried out by submarines. It did not find the evidence to establish, with the certainty required, that Doenitz had delib- erately ordered the killing of shipwrecked survivors.

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WAR AND NEUTRALITY 1 9 1 interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that Nation entered the war, the sentence of Doenitz is not assessed on the ground of his breaches of the international law of sub- marine warfare.58 Thus the effort of 1930 and 1936 toward subjecting submarines to the "rules of international law to which surface vessels are sub- ject" fell far short of its objective. A simple explanation of why it did so would be that the specific rules that were stated as being included in the standard were incomplete. A more basic expla- nation would be that force overshadowed the law. THE "RULES" OF THE Alabama AWABD One of the most celebrated instances in which the United States participated in an effort to apply the international law standard and to project rules for general acceptance was that in connection with the Alabama claims settlement. In contrast to the development recounted in the previous subsection, there was in this case a successful application of the rules in the claims adjudication, but a failure to secure immediate adoption of them by other states. It has been the subject of so much discussion and critical analy- sis that it is not easy to focus attention upon but one aspect of the treaty, that is, the references therein to general interna- tional law in its relation to the "rules" of the treaty.

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192 THE INTERNATIONAL LAW STANDARD law as a whole and the effect, upon that law, of this treaty as 67 interpreted and applied. It will be convenient to consider sep- arately for this purpose the period from 1865 to the negotiation of the treaty, the actual negotiation and ratifications in 1871, the period of the arbitration itself, the sequel to the arbitration (in- cluding the conversations on wider projection of the rules), and action ultimately taken at the Second Hague Peace Conference. Of special importance, for the present purpose, are the distinctions between international law and municipal law (and the relation between the two in the jurisprudence of the respondent state), and between rules of international law admittedly preöxisting and some whose prior existence was in controversy. The whole question of British responsibility for allowing the ships later used by the Confederates to be built or supplied in British ports was tied in, through the discussions, with other legal questions, such as the alleged prematurity of British recognition of the belligerency of the Confederates, and the legality of nego- tiations conducted indirectly with the representatives of Jefferson Davis (looking to Confederate adherence to the Declaration of Paris). As to the question of fitting out ships, the representative of the Confederate government who concluded the contract for construction of the Alabama had previously procured legal counsel in England and advice that the transactions were legal 58 under British law. That Captain Bulloch had no exalted idea of international law is suggested by his statement that it "has never received the willing or unanimous consent of all nations, but bears upon its face the impress of having been forced by the stronger upon the weaker" (I, 74), and by his later reference to "the very complex and elastic code commonly called international law" (II, 409).

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WAR AND NEUTRALITY 193 same year (1863), Richard Cobden had lamented the failure of the American government to make a clear distinction between the selling of ordinary contraband and the equipping of "privateers"; he thought that if a "plain, simple, short and dignified reclama- tion" had been made at the first because of the fittings out, the British government could not have resisted it.60 Other Englishmen were of a different opinion concerning neutral duties under inter- national, as distinguished from municipal, law. Illustrative is Lord Robert Cecil's statement in Parliament on May 13, 1864, that "it is quite as much within the International Law to sell ships of war to another nation as it is to sell any munitions of war."61 In his notes to Charles Francis Adams, the American minister, Earl Russell sometimes referred to the law, "municipal and inter- national," sometimes merely to the law.62 If it be true that the period from May 1865 to May 1871 (the date of signing of the Treaty of Washington) comprised "years of rapid education toward a new code of international law,"83 the effects of such education were not to be immediately apparent. Lord Clarendon, who became Secretary for Foreign Affairs in 60 See Cobden, Speeches on Questions of Public Policy (1870), II, 84-85. See also letter of May 22, 1863, quoted in Amer. 61 Hansard, Parliamentary Debates, 3d ser., vol. Captain Bulloch, in his attempted justification, under international law, of the fur- nishing to Confederates, quoted Palmerston, Prime Minister, to the effect that there was no difference in principle between supplying a belligerent with rifles or with ships, and that on the mere ground of international law it was quite permissible to supply either of two belligerents not only with arms and cannon but with ships destined for warlike purposes (The Secret Service, I, 447).

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194 THE INTERNATIONAL LAW STANDARD the autumn of 1865, said in an interview with Adams that there were many things in what was called international law that were then in a vague and unsatisfactory condition and inquired if the American minister thought that British-American consultation might be favorably regarded by the United States.64 Shortly after- ward the British government was to pursue the subject further. "England and the United States," an official communication ob- served, . . had each become aware of the defects that existed in international law, and . . . it would greatly redound to the honor of the two principal maritime nations of the world to at- tempt the improvements in that code which had been proved to be necessary." Although war wounds were still too recent and ill will toward England still too rife to render such an under- taking practicable at that time, it was a thing to be kept in mind and earnestly desired by Her Majesty's Government, a work which would be "worthy of the civilization of our age, and which would entitle the governments which achieved it to the gratitude of mankind."65 To the Earl of Clarendon's suggestion of a concurrent revision of the statute law of the two countries on the subject of neu- trality, Adams replied on November 18, 1865, challenging the assumption that the legislation of the two states was equally efficacious. Seward (for President Johnson) approved the min- ister's views.68 After a Conservative government had replaced a Liberal one in England in 1866, Lord Stanley, as Secretary for Foreign Affairs, negotiated with Reverdy Johnson, Adams' suc- cessor, in regard to an Anglo-American treaty, but the draft in- strument was not referred to the American Senate. With the fall of the Conservative government, Johnson's negotiations with Lord Clarendon, foreign secretary in Gladstone's Cabinet, did produce a convention, which was disapproved by the Senate in 1869. In the meantime, the British had taken steps toward revising their Foreign Enlistment Act of 1819. The government appointed, on January 31, 1867, a commission "to inquire into and report 64 Ibid., p. 1 ( 1 8 6 6 ) , Correspondence respecting the "Shenandoah" [3581], p.

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WAR AND NEUTRALITY 1 9 5 whether any and what changes ought to be made in such laws for the purpose of giving to them increased efficiency, and bringing them into full conformity with our international obligations." In its report which led to the passage of the Act of August 9, 1870,67 the commission said: In making the foregoing recommendations we have not felt our- selves bound to consider whether we were exceeding what could be actually required by International Law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency and will, so far as we can see, have been brought into con- formity with your Majesty's international obligations.88 In the minds of Seward and Adams, the American complaint of premature British recognition of the Confederates' belligerency had been an important element of grievance. This complaint was to come up again with Senate action on the Johnson-Clarendon convention (signed January 14, 1869), and in connection with instructions to J. Lothrop Motley, the new American minister to England and close friend of Senator Charles Sumner, chairman 67 33 and 34 Vict., ch. The House of Repre- sentatives in 1866 had passed a bill which would have revised the neutrality act of 1818 and which contained the following section: "Be it further enacted, That nothing in this act shall be so construed as to prohibit citizens of the United States from selling vessels, ships, or steamers built within the limits thereof, or materials or munitions, the growth or product of the same, to inhabitants of other countries or Governments not at war with the United States: Provided, That the operation of this act shall be suspended whenever the United States shall be engaged in war." A spokesman for the minority of the Foreign Affairs Committee (Henry J. Raymond, of New York) said in part, in opposition to the bill: "It is pro- posed in this bill . . . to base our laws of neutrality, not upon the principles which we ourselves have always held on this subject, but upon the laws and practices of a foreign Power. I concur fully in the sentiment that members cherish here concerning the action of certain foreign Powers on the subject of neutrality during our recent civil war.

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196 THE INTERNATIONAL LAW STANDARD of the Senate Foreign Relations Committee. Apparently the Johnson-Clarendon instrument did not find favor with either the 69 President-elect (Grant) or with the leaders of the Senate. In his uncompromising speech in the Senate on April 13, 1869, Sumner scored the proposed treaty because of its following as a model the Anglo-American claims convention of 1853 (which had provided for settlement of claims of nationals, not of the governments themselves), because of its provision for choice of an arbitrator by lot, because of its ignoring the national public grievance as compared with individuals' claims, and because it recognized no rule of international duty applicable to such cases. Developing the case against Great Britain, the Senator proceeded, from the point concerning the unjustified recognition by Britain of belligerency of the Confederates, to a claim of British responsi- bility for "the additional expenditure to which our country was doomed" because of the prolongation of the war. On the question of damages, Sumner said that the rule of Roman law was the rule of international law and that it was broader than that of the common law (ibid., p. On June 15, Sumner wrote to Motley: "I do not despair seeing the debate end—(1) In the withdrawal of England from this hemisphere; ( 2 ) In remodelling mari- time international law" (ibid., p.

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WAR AND NEUTRALITY 197 At Sumner's suggestion and apparently with the assent of Secretary Fish, Motley was allowed to prepare a "memoir" on the instructions he was to receive. Sumner, who was consulted about the contents of the instructions, disapproved Fish's idea of abandoning the position which he (Sumner) had stressed in his Senate speech concerning recognition of belligerency. Caleb Cushing helped toward an adjustment. As finally formulated, the instructions conveyed to the American minister the President's desire to "simplify" the American case; the British declaration concerning the Confederates' belligerency was to be regarded "as a part of the case only so far as it shows the beginning and the animus of that course of conduct which resulted so disastrously to the United States." The American envoy was to place the cause of grievance not so much upon Great Britain's recognition of belligerency, "but upon her conduct under, and subsequent to, such recognition." Another part of Motley's instructions, relating to possible negotiations looking to agreement upon the respective rights and duties of either party when the other should be a belligerent, was as follows: The absence of some agreement or definition on this subject was among the causes leading to the rejection of the recent convention, under which, had it been adopted by the two countries, none of the grave questions which have arisen would have been passed upon by a tribunal whose decision either party (much less other nations) would regard as authority, so as to prevent repetition or retaliation. . . If . . . the two great leading maritime commercial nations of the world establish a rule to govern themselves, each with respect to the other, they may reasonably hope that their conclusion will be accepted by the other powers, and will become for the future recognized as a 72 part of the public law of the civilized world. In his conversation of June 10, 1869, with Lord Clarendon, Motley—as the Secretary of State later claimed—missed the in- tended emphasis regarding recognition of belligerency, and said what seemed to the President to reflect more the views of Senator Sumner than those of Grant and Fish.

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198 THE INTERNATIONAL LAW STANDARD scribed it as being "the fountain head of the disasters which had been caused to the American people, both individually and col- 73 lectively, by the hands of Englishmen." A year and a half later Fish wrote, after Motley's recall, that in this interview the minister had spoken in direct opposition to the "temper and spirit" of his instructions. Motley, in answer to Lord Clarendon's suggestion (concerning the choice of an arbiter by lot, as proposed in the Johnson-Clarendon convention) that the throwing of dice or the drawing of lots was "not a new invention" but a "not uncommon method in arbitrations," had observed that "such an aleatory process seemed an unworthy method for disposing of questions hinging on great principles of law and involving the welfare of nations and the contingencies of war and peace." Fish in his com- munication of December 30, 1870, to Benjamin Moran at the American Legation in London, pointed out that Motley's sugges- tive words, "aleatory process," had previously been used in a 74 speech made in the Senate on the ratification of the treaty. On the question of agreement upon some general principles of law pertinent to the matters involved in the Alabama claims, Motley reported, concerning his interview with Lord Clarendon: I observed further, that the President hoped, when negotiations on these grave matters should be renewed, for the establishment of general and fundamental principles, binding upon both nations, in full view of 73 Ibid., p. Apparently Grant was inclined to recall Motley soon after this, but he did not actually do so until more than a year later. Some his- torians have attributed Grant's displeasure over Motley's use of his in- structions to the fact that the President favored recognition of the Cuban insurgents in 1869 and did not like Motley's emphasis upon the illegality of the British proclamation of 1861 (Adams, Lee at Appomattox, p. On July 10, 1869, the Senator wrote to Caleb Cushing: " M y desire is to act so that our example may give new force to international law and help future peace . . .

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WAR AND NEUTRALITY 1 9 9 the fact that what should, after this long international debate, be adopted by the two leading naval and commercial powers of the world, as the amended public law for their own guidance, would probably be considered as the norma agendi for the civilized world. His lordship heartily concurred in this view of the case, saying that it was what he 75 had always earnestly desired. The possible projection of new rules on neutrality was again the subject of a reference in an instruction of September 25,1869, to the American minister in London. This note related mainly to the nature of the American grievances and said that it did not fall within the scope of the communication "to discuss the im- portant changes in the rules of public law, the desirableness of which has been demonstrated by . . . incidents of the last few years, now under consideration, and which, in view of the mari- time prominence of Great Britain and the United States, it would benefit them to mature and propose to the other states of 76 Christendom." The subsequent discussions of importance were to be con- ducted, not through Motley in London, but in Washington. The temporary interruption of conversations looking to a settlement seems to have caused some concern to the British government. In the latter part of 1869, Sir Edward Thornton several times referred to the matter in conversations with the Secretary of State, and desired to know what kind of settlement would be 77 acceptable to the United States.

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200 THE INTERNATIONAL LAW STANDARD ment which would be more than a mere disposal of particular claims was never lost sight of is also suggested by Secretary Fish's mention, in a letter to a correspondent in September 1869, of a possible definition of "what shall be Maritime International T9 Law in the future." Sir John Rose, member of the ministry in Canada and British commissioner to settle the claims of the Hudson's Bay Company and of the Puget Sound Company against the United States, had an important part in the conversations which soon followed. He was an unofficial envoy for the purpose. Not only the labor of this Anglo-American for a peaceful solution, but the seriousness (for Great Britain) of the current developments in Europe, and the firmness of the President on the subject of the claims against 80 Great Britain, seem to have figured in the outcome. The actual negotiation of the Treaty of Washington came about after an accord in four diplomatic notes, which the Secretary of State called "the official particulars of twenty months' secret 81 diplomacy." To a proposal by the British that a joint high com- mission of the two countries treat on outstanding questions of fisheries and other matters affecting the relation of the United States to the British possessions in North America, the United States assented, on condition that the Alabama claims should also 82 be referred to this commission. 81 The notes are quoted in Moore, International Arbitrations, I, 532-535. On January 17, 1871, Senator Stunner, while still chairman of the Foreign Relations Committee, had submitted to Fish the memorandum in which the Senator made his suggestion of a hemispheric flag-withdrawal by the British, which he said could not "be abandoned as a condition or preliminary of such a settlement as is now proposed." No proposition for a joint commission, he wrote, could be accepted unless the terms of submission were such as to leave no reasonable doubt of a favorable result (text in Moore, International Arbitrations, I, 525-526).

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WAR AND NEUTRALITY 2 0 1 standing that there should be, in the final treaty, an expression of regret, not inconsistent with the dignity of England, for the fact of escape of and depradations by the Alabama, but no advance admission of legal liability on these claims. The British foreign secretary was willing to negotiate with regard to the future rules of maritime neutrality.83 Coming together for organization on February 27, 1871, the commissioners subsequently had thirty-seven sittings. The British members, headed by the Earl de Grey and Ripon, had instructions which authorized their expressing regret for the escape of the Alabama and the consequent injury to the commerce of the United States, in terms agreeable to the United States and not inconsistent with the previously maintained position of the British government regarding the international obligations of neutral nations. The instructions also set forth that it would be desirable "to take this opportunity to consider whether it might not be the interest of Great Britain and the United States to lay down certain rules of international comity in regard to the obligations of maritime neutrality, not only to be acknowledged for observance in their future relations, but to be recommended for adoption to the other Maritime Powers."84 As to the Alabama claims, the British commissioners had instructions to propose un- restricted arbitration. In a statement read to the commission on March 8, Secretary Fish declared that Great Britain was liable for her failure to exercise neutral duties toward the United States upon "principles of International Law" which the Americans would submit. As presented, these principles were to govern consideration of the claims, whether this be by the commissioners or by a separate tribunal.

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202 THE INTERNATIONAL LAW STANDARD The American Secretary of State, having proposed the bases of negotiation or arbitration, discussed the nature and extent of claims for direct damages to property. As to indirect losses, the Secretary said that, in the hope of an amicable settlement, he presented no estimate, "but without prejudice to the right to in- 86 demnification on their account." The "three rules" of what came to be the Treaty of Washington had their origin in a proposal by the American commissioners, on March 14, 1871, of four rules, one of which (relating to treatment of vessels which had departed from the jurisdiction of a neutral government in violation of the neutrality of the latter and which were afterward found within the jurisdiction of the same neutral government) was later dropped. A cabled request for authoriza- tion brought to the British commissioners instructions to assent to the rules, not as a statement of principles of international law which were in force at the time the Alabama claims arose, but as applicable to these claims, and as rules to apply in the future. As that instrument recites, "Her Majesty's Government in order to evince its desire of strengthen- ing the friendly relations between the two countries and of making satisfactory provisions for the future, agrees that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in the rules." The arbitrators were to be governed by these rules, "and by such principles of international law not inconsistent there- 86 Allan Nevins, Hamilton Fish: The Inner History of the Grant Adminis- tration (1936), p. This writer says that Englishmen were still almost unanimous in holding that their country had not violated international law. 87 Texts of the four rules as proposed by American commissioners and of the three rules in the form accepted are in Moore, International Arbitrations, I, 542-544, and in the Protocols of Conference between Commissioners (Treaty of Washington Papers).

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WAR AND NEUTRALITY 2 0 3 with as the arbitrators shall determine to have been applicable to the case." For the present purpose, the most significant part of the treaty was the last paragraph of article VI, by which the parties agreed "to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime 88 powers, and to invite them to accede to them." The failure of the commissioners to reach any specific agree- ment upon the national, or, as they had begun to be called, the "indirect," claims of the United States was to cause much subse- quent discussion. However, this shortcoming was apparently not anticipated in 1871, and in its final form the treaty did not en- counter serious opposition. The Senate majority for approval in- cluded Senator Sumner. Although Earl Russell called the agree- ment a British yielding and offered a motion for refusal to ratify any convention for the settlement of the Alabama claims by anything except the rules of international law and of British 89 municipal law in force at the time the events occurred, the plan was approved in London. Earl Granville contended that the three rules were completely covered by the 1870 Act of Parliament, and Sir Roundel! Palmer argued that the "substance of the obliga- 8 8 17 Stat.

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204 THE INTERNATIONAL LAW STANDARD tion" which Great Britain was accepting in the three rules, as dis- tinct from its "foundation and origin," did not differ materially from that in the municipal law of England as interpreted and actually understood by the government and as the government 90 at the time undertook to execute it. In the House of Commons on August 4, 1871, Gladstone, defending the treaty, expressed the hope that the basis of understanding between the two countries would "harden and widen into an International Law for the 81 benefit of the world." With the appointment of arbitrators and their meeting for organization at Geneva, Switzerland, on the fol- lowing December 15, the way was prepared for attempted in- terpretations of the rules in relation to national statutes and to preäxisting international law. Described by one public man in England (who represented the 92 minority view) as "loaded dice," and by a leading periodical as "so hopelessly vague that they would cover almost any view 93 of international law ever propounded," the "rules" as stated did not preclude the possibility of American presentation of the 94 "indirect" claims at Geneva. Inclusion of these claims in the 90 Ibid., vol. In the course of the same speech, Gladstone took the position that "the principle embodied in the rules in the Treaty of Wash- ington are the very principles for which the Executive Government of this country contended in the Courts of this country, and which, therefore, it was not too much for the American Government to expect we should be prepared to act on in coming to an ultimate setdement." At another place he said that the "treaty has laid the foundation of future advantage in the administration and action of International Law" (ibid., pp. 92 Letter of August 7, 1871, as quoted by Sir Roundell Palmer, Memorials, Part II, I, 225.

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WAR AND NEUTRALITY 205 Case of the United States as prepared by Bancroft Davis and presented to the tribunal caused a storm which evoked further public statement as to the meaning of the agreement and led to negotiation looking to some arrangement of the issue. The official British view had been that through the work of the high com- missioners at Washington the matter had been set at rest, and in the House of Commons, on February 6, Gladstone said that the British construction of the treaty could be shown to be "the true and unambiguous meaning of the words" and therefore the "only meaning admissible, whether tried by grammar, by reason, 95 by policy, or by any other standard." Secretary of State Fish seems to have had the indirect claims included in the American Case not because he thought damages on them would or should be allowed by the arbitrators, but because he was concerned about 96 the attitude of the Senate; while unwilling to regard these claims as excluded because of the soundness of the British position on what had been done by the high commissioners at Washington, he was apparently not expecting a pecuniary award on these 87 bases. To Minister Robert Cumming Schenck in London he purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. "Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the fore- going obligations and duties." The sequel to the discussions of the high commissioners seems to show that the British members were honestly of the opinion that the indirect claims would not be brought under the treaty, and that the American members believed they had yielded nothing on this point. The Marquis of Ripon (Lord de Grey), head of the British commissioners who negotiated the treaty, admitted (according to Morley) his awareness of the possibility that the indirect claims might be brought on the basis of the treaty; he believed that if he had insisted that a formal repudiation be written in, it would not have been possible to get any treaty at all (John Morley, Life of William Gladstone [1903], II, 408; Robert B. Mowat, The Diplomatic Relations of Great Britain and the United States [1925], p. The Queen's speech contained the statement that "in the Case . . . submitted on behalf of the United States large claims have been included which are understood on my part not to be within the province of the Arbitrators." 98 Nevins, Hamilton Fish, pp.

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206 THE INTERNATIONAL LAW STANDARD wrote, on February 29, that "the meaning of the Treaty is within its four corners."98 The British government's position was that the indirect claims must be entirely excluded. The whole arbitration proceedings seemed likely to be discontinued. On March 20 Earl Granville wrote to Schenck, drawing attention to the fact that the parties to the Treaty of Washington have . . . bound themselves to bring these Rules to the knowledge of other maritime Powers, and to invite them to accede to them. Could it have been expected that those Powers would accept a proposal which might entail upon a neutral such an unlimited liability, and, in some instances, might involve the ruin of a whole country? Her Majesty's Government cannot for themselves accept such a liability, nor recommend the acceptance of it to other nations." The British government had now taken the position that the indirect claims were wholly beyond the reasonable scope of any treaty of arbitration, and that their submission would be damaging to the interests of all nations and to the future peace of the world.100 Sir Roundell Palmer, counsel for his country in the arbi- tration at Geneva, thought the submission would have made it possible for the arbitrators to "mulct this country in more than the whole expenses of the war" and that war would have been a preferable alternative; in a letter to the Lord Chancellor and to Gladstone he pictured the American Case as "an attempt to evade and enlarge the limits within which the subject-matter of the reference to the arbitrators was intended to be confined by the Treaty of Washington, and to found enormous and intolerable claims upon the enlargement of those limits."101 Friends of the treaty and advocates of the arbitral method of 98 Nevins, Hamilton Fish, p. Fish wrote to Schenck in June that the government of the United States hoped, as it had reason to believe, that the treaty would be "its own interpreter" (Treaty of Washington Papers, II, 5 4 8 ) .

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WAR AND NEUTRALITY 207 settling even serious disputes between nations used their efforts 102 to save the situation. After prolonged discussion, largely by telegraph, regarding the form in which the two governments might agree to withdrawal of the objectionable claims, the effort still seemed likely to fail. Grant's Cabinet appears to have agreed on April 19 that, while the indirect claims could not be with- drawn, it was to the interest of the United States that there be an arbitral pronouncement against a pecuniary award on the claims. Adams, the American arbitrator, who was about to leave for Europe, was told of the decision and was willing to communicate 103 the view to the British government. After abandonment of the idea of an exchange of notes, Granville handed to Schenck on May 10 a proposed supplemental article. By the latter, each nation would have bound itself not to prefer in future any claims against the other for consequential damages, and in consideration of this promise the United States would drop the "indirect" claims which had been presented at Geneva.

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208 THE INTERNATIONAL LAW STANDARD Schenck conveyed Grant's acceptance of the arbitrators' declara- tion upon the question of public law.10® The amount of attention which the arbitrators gave, in the actual arbitration, to relation of the "three rules" to general in- ternational law has been the subject of some disagreement. The secretary to Caleb Cushing, senior American counsel, had the im- pression that the arbitrators, with the exception of Sir Alexander Cockburn, the British member, paid no attention to whether the "rules" were new or merely stated principles of preäxisting inter- national law.107 Count Frederic Sclopis of Italy, the presiding arbitrator, did not entirely clarify his own position when, in the course of his individual opinion, he said: Even if precedents could be quoted contrary to the opinion I main- tain, I should reply that the letter and spirit of the three rules laid down in the sixth article of the treaty of Washington do not allow us to follow the old ruling. It must be steadily borne in mind that it is a new law, full of equity and foresight, which we are now to follow. . . . The powers which signed the treaty of Washington express . . . the desire and hope that the three rules which they have there laid down will be adopted by the other maritime powers. If, on the contrary, it is to be supposed that the intention of the contracting parties . . . was to admit explanations and reservations of these same rules in the sense "of not largely transcending the views of international maritime law and policy which would be likely to commend themselves to the general interests and intelligence of that portion of mankind," the advantage of the example given would be entirely lost. The uncer- tainty of its interpretation would always endanger the stability of the rule.108 Nor did the Italian member make it perfectly clear whether he was thinking primarily of international customary law or of treaty law when, in discussion of the effect as res judicata of the decision of the admiralty court of the Bahamas regarding 106 Ibid., pp.

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WAR AND NEUTRALITY 209 the Florida, he said that it was a case of "the responsibility which results from the principles of international law, and the moral conviction at which we have arrived in consequence of the acts imputed to the Florida." He thought it was for the arbitrators to "repair the effects" produced, "no longer taking as our point of departure the provisions of a municipal law, but the principles of international law, and the rules laid down in X09 Article VI of the treaty." Viscount d'ltajuba, Brazilian arbitrator, in his opinion, did not mention general international law in terms, but referred carefully to the three rules. Justice Jacques Staempfli, the Swiss member, alluded to the law behind the treaty and the arbitra- tion when he spoke, with respect to the Alabama, of what was allowable by "the first rule, and according to the natural inter- pretation of the obligations of the law of nations," and, regard- ing the Shenandoah, of what was correct "according to inter- national law." He elsewhere referred to the "maintenance of a real and effective neutrality." In a general description of the law of the tribunal, after observing that the rules took precedence "of the principles which might be drawn from historical inter- national law and from science," he said: Historical international law, or the practice of the law of nations, as well as science and scientific authorities, may be considered as sub- sidiary law, in so far as the principles to be applied are generally rec- ognized . . . nor at variance with the three rules. . . . If one or other of these conditions fail, it is for the tribunal to supply what is wanting by interpreting and applying the three rules to the best of its power 110 and in all conscientiousness. In his opinion, Adams referred to British denial that the measure of diligence due to the United States from Great Britain was as great under the law of nations as it had been made, with her consent, by the terms of the treaty. He further noted that, in either case, the British government claimed to be the exclusive judge of the fulfillment of the duty, and held that it was for the tribunal to determine the "debt" which might have been con- tracted by the use of the "terms" (rules). The earlier quotations from Staempfli's opinion are in the same volume at pp.

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210 THE INTERNATIONAL LAW STANDARD was careful to find liability or lack of it under "terms of the 111 Treaty of Washington." Sir Alexander Cockburn, who at one point in his separate opinion referred to himself as "in some sense the representative of Great Britain" on the tribunal, contended that the United States virtually admitted that the "rules" had not previously been international law, "for it 'agrees to observe the rules as be- tween itself and Great Britain in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them'—all of which would plainly be superfluous and vain if these rules already formed part of the existing law rec- ognized as obtaining among nations." He regretted that the whole subject matter was not left open to be decided by the arbi- trators according to the "true" principles of international law in force when the alleged causes of complaint were said to have arisen. He dealt with a point relating to the theory of incorporat- ing international into municipal law when, after attempting to refute the point that the commissioners who framed the Foreign Enlistment Act of 1870 meant the municipal law to come up to international obligations, he declared equally unfounded "the assertion that the provisions of the foreign enlistment act are only a statutory declaration of the common law of England," since the "enactment of that statute could only be declaratory of the common law, if co-extensive with the obligations of inter- 112 national law; whereas, in fact, it went far beyond them." He expressed doubt that the rules, interpreted (as they were by the majority) to place so extensive a liability upon a neutral, would find favor with other nations, and thought it strange "if regula- tions, more stringent than the rules of international law, framed by a neutral sovereign for the very purpose of insuring the observ- ance of neutrality, can be made to create an antecedent liability 113 which never would have existed without them." Cockburn was 111 Ibid., pp. Cockburn expressed his wish that if the "rules" had to be made, "due diligence" might have been more precisely defined, and that the "principles of international law not inconsistent with them" might have been set forth (ibid., p. Earlier in the course of his very lengthy opinion he had attempted to show, on a comparative view of the laws of leading maritime countries, that there was none in which the equipping or arming of vessels

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WAR AND NEUTRALITY 2 1 1 most vigorous in his reference to his colleague Staempfli, to whom he attributed the idea that there was no such thing as international 114 law and that the tribunal was creating it for the first time. At an earlier point in his opinion he had said: I cannot concur with Mr. Staempfli that, because the practice of na- tions has at times undergone great changes, and the views of jurists on points of international law have often been and still are conflicting, therefore there is no such thing as international law, and that, con- sequently, we are to proceed independently of any such law—for such is the effect of his reasoning, if I understand itrightly—accordingto some intuitive perception of right and wrong, or speculative notions of 115 what the rules as to the duties of neutrals ought to be. The sharpness of Cockburn's criticisms did not detract from the importance of a successful adjudication. The whole proceeding illustrated the manner in which, when the international law standard was to be applied, custom and precedent might be invoked, writings of publicists adapted, use made of such municipal court decisions as that 116 concerning the Santissima Trinidad and that concerning the 117 Gran Para, and attention drawn to official statements made was (prior to the outbreak of the American Civil War) prohibited except under circumstances which would make it a violation of neutrality according to international law (ibid., p. Some laws had been changed after the outbreak of the war to put them on the same basis as those of England and the United States.

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212 THE INTERNATIONAL LAW STANDARD previously from the complainant state (such as the ruling of a 118 United States Attorney General in 1841), in an effort to con- vince arbitrators of what had been existing international law and what would be a reasonable interpretation of the "rules" as affecting that law. As has been seen, much discussion related to "municipal laws in excess of antecedent international obliga- tion." Actual practice of states, as revealed in what the United States had done with regard to the revolting colonies of Spain, as well as what had been done in international wars, also re- ceived detailed attention. The tribunal found that the inter- national duties of a neutral are quite distinct from its own municipal laws on the subject, which may fall quite short of the obligatory international standard. The arbitrators further laid down that the meaning of an elastic phrase such as "due dili- gence" may be properly given in relation to the particular cir- cumstances, and that damages for failure to use such diligence may be proportioned to the loss thereby sustained by the offended 119 belligerent. The view seems tenable that at the time the Alabama claims arose, international customary law re- lating to neutral duty in the matter of ships fitting out in a state's ports for the use of belligerents was at least evolving toward a 1 1 8 3 Op. This was a ruling that the prohibition in United States law against the sale of completed warships was not required by international law.

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WAR AND NEUTRALITY 2 1 3 120 rule of prohibition. Whether the Americans were right that the "rules" of the treaty were expressive of what already existed, or whether the British view that new obligations were retroac- tively imposed by the treaty was sound, the treaty provisions and the effect given to them by the arbitrators were bound to have influence upon the development. In a letter of October 22, 1872, to J. Bancroft Davis, Secretary Fish observed: It needs but the most cursory glance at the mass of correspondence and of other documentary matter submitted to the tribunal of arbitra- tion to see how thoroughly the remonstrances and protestations of the Government of the United States against the conduct of Great Britain have quickened and stimulated the European, and above all the British, mind into more careful examination and more complete perception of the rights and obligations of neutral powers, for the question of rights 121 is inseparable from that of obligations. Egidio Reale, L'Arbitrage international: Le Reglement judiciaire du conftit de I'Alabama (1929), p. Lorimer had criticized the rules at the 1874 session, asserting that neutrality itself was by no means a constant duty, but rather circumstantial; he also opposed the idea of making the intention with reference to the use of a ship, rather than the actual char- acter of the latter, the criterion for determining the effect upon neutrality.

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Section 399 — 400; Revue de droit international et de legislation com- рагёе, VI, 59, 62

214 THE INTERNATIONAL LAW STANDARD There remained the matter of carrying out the agreement of the parties to communicate the "rules" to other maritime states and invite accession. The chief apparent difficulty grew out of the fact that the second rule had from the first been unclear and that, after the arbitration, the British government was not de- sirous of proposing the rules to other states with the interpreta- tion of them which the tribunal had given. Immediately after the treaty was made, there was concern in England lest the second rule prevent the sale of arms and other military supplies, by a neutral or in a neutral country, in the ordinary course of com- merce. Fish telegraphed to Schenck on June 10, 1871, that the President understood the rule did not prevent the open sale of arms or military supplies in the ordinary course of commerce; the Secretary of State added that the United States, in bringing the rules to the knowledge of other powers and asking their assent to them, as the contracting powers had agreed to do, would insist 122 that such was their proper meaning. De meme l'Etat neutre ne doit ni permettre ni souffrir que l'un des belligerants fasse de ses ports ou de ses eaux, la base d'operations navales contre l'autre, ou que les vaisseaux de transport militaire se servent de ses ports ou de ses eaux, pour renouveler ou augmenter leurs approvisionne- ments militaires ou leurs armes, ou pour recruter des hommes.' 122 Moore, International Arbitrations, I, 554. 399-400; Revue de droit international et de legislation com- рагёе, VI, 59, 62.

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WAR AND NEUTRALITY 215 After the actual arbitration the treaty apparently became more unpopular in England, and agreement upon a formulation for presentation to other powers became less likely. Already intima- tions of some unfavorable reactions to the projected "rules" of international law had come from outside states. Bismarck's re- ported position was one unfavorable to the rules because they did not go far enough, the intimation being that the supply of arms and other munitions of war from a neutral country should be forbidden. Schenck in a despatch of October 7, 1872, sent word of the statement by the German ambassador (Albrecht von Bernstorff) to Granville that the German government would probably oppose the rules when they were presented for accept- 135 ance. Count Friedrich F. von Beust, Austrian ambassador at London, had objected to the rules as narrowing the rights of neutrals unduly and giving undue advantage to belligerents; he was opposed to any modifications in the law of nations not 126 existent in the "natural development of international right." More specifically, he had expressed apprehension lest England, through her possession of naval stations in all parts of the world, secure great advantage over other states which did not have 127 comparable facilities at their command. Granville himself seems to have believed, or to have caused the Americans to think he believed, that the rules would be rejected by some other mari- 128 time states.

interpretation placed by the Tribunal of Geneva upon the three

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2 1 6 THE INTERNATIONAL LAW STANDARD interpretation placed by the Tribunal of Geneva upon the three Rules . . . and upon the principles of International Law," the government should transmit to other powers, with the rules, its 128 dissent from the interpretation of them by the arbitrators. Its maker pointed with alarm to certain dicta of the arbitrators. He urged that the rules were not self-interpreting, and that anyone reading them for himself "would put upon them an interpreta- 130 tion much more moderate than that of the Award." For the government, W. For the opposition, Vernon Harcourt supplied observations on international law, which he described as "constructed out of the precedents furnished by great transactions," and later defined as 132 a "law of public opinion of states." He suggested that the arbi- tration had shown the "imprudence of attempting to settle the 133 law of nations by the electric telegraph." The three rules he described as "leaky," as "not worth mending," as a "piece of care- 134 less juridical slipslop." He thought the "tendency of these 129 Hansard, Pari. Later in the course of the debate a member urged that it would be "madness to throw away an interpretation of international law which, though for the moment against us, seemed contrived for our spe- cial benefit in the long run" (ibid., p. Another observed that, 'in drawing up the Rules, which were to be at once the Rules for permanently settling the international law and the Rules to settle our temporary differ- ence with the United States, both sets of Commissioners were placed in a very difficult position, because they had in a manner to look both forwards and backwards at the same time" (ibid., p.

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WAR AND NEUTRALITY 2 1 7 Rules of the Treaty of Washington was to reverse the whole stream of civilization" by putting neutrals into a position where 135 the "conditions of neutrality" were intolerable. The Attorney General spoke of the arbitrators' interpretations as "glosses," and thought that the "Rules" themselves were only new to this extent, that, the character of wars and the relations between states having altered since the last great war, circumstances had neces- sitated "a new statement of principles which were as old as the 136 relations of civilized nations." Disraeli expressed the convic- tion that "unless we arrive at some precise meaning as to the engagements into which we have entered by the intended intro- duction of the Three New Rules into the international law of Eu- rope, we shall find ourselves involved in great difficulties." Observ- ing that "the greater portion of the law of nations does not depend upon Treaties," he pointed out that the treaty did not clearly 137 bind the parties to joint communication to the powers. Gladstone, who apologized for his earlier erroneous statement to the House that the government had already communicated the new rules to the powers of Europe, expressed the government's view that, whether the state was bound or not, he would antici- pate very little advantage from a separate communication; a joint communication was evidently contemplated by the treaty, and would alone afford reasonable promise of attaining the objects of the treaty. There would be little chance of getting others to accept the rules if the two powers originally accepting them were unable to agree in submitting them. For this reason the govern- ment did not contemplate immediate pressure upon the United States to resume the correspondence, in view of the disagreement on interpretation. The Prime Minister indicated that Britain's recommendation of the three rules would not carry with it the recitals of the arbitrators as being "of any authority in the mat- 188 ter." The motion was then withdrawn.

218 THE INTERNATIONAL LAW STANDARD

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218 THE INTERNATIONAL LAW STANDARD before "sale" in the proposed explanatory note making clear that the second rule did not contemplate any prohibition upon the sale of arms and other military supplies in the ordinary course of commerce. In a communication of December 22, 1871, Granville objected that this insertion would have the effect of leaving the two governments responsible to third powers for the clandestine 139 dealings of their citizens and subjects. In June 1873, Fish told the British minister (Thornton) that since the two governments had given it out to the world that they would invite the other maritime powers to accede to the rules, it appeared "undignified that they should abstain any longer from doing so." He observed that both Gladstone and Sir Stafford Northcote had in the recent debate on the Alabama indemnity declared that the three rules were not ex post facto but actually represented international law at the time of the origin of the claims. It therefore appeared to Fish that the two governments were now even more in accord concerning the rules than they had been when the treaty was signed; in any case, the American Secretary of State thought it "high time" Her Majesty's Government should either refuse or consent to join with the United States in addressing the invita- 140 tion to the maritime powers. In October of the same year Granville made known that "Her Majesty's Government would think it necessary to accompany such a submission with a comment, and they could not in such comment adopt all the principles laid down by the Tribunal of 1 Geneva."" In a memorandum to Schenck, dated November 1, Granville suggested that "consequences are involved in the rules 142 which they [the British government] have never intended." Furthermore, It also appeared desirable, with regard to the maritime Powers, to state, in submitting the three rules for their acceptance, that the Rules 139 Sen. 140 Correspondence with the Government of the United States respecting the communication to other Governments of the Rules of the Treaty of Washington, C.

WAR AND NEUTRALITY 2 1 9

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WAR AND NEUTRALITY 2 1 9 embody what, according to recent American statements of the view entertained in the United States, was international law before they were made, and that, although Great Britain did not accede to this proposition, yet we held them to express what we had thought fit to carry into effect through the action of that law, at a time when the Rules did not exist. It would remain for inference, that they do not constitute the innovation which some other Powers might think there was to be found in them.143 Mere verbalisms brought the foreign offices no closer to joint action. On May 9, 1874, Benjamin Moran reported a growing public opinion in England against bringing the three rules to the attention of the other maritime powers.141 To Secretary Fish's inquiry of June 24, 1875, Thornton replied that he thought it possible Her Majesty's Government was "unwilling to make an application to other Governments which might be refused."145 To an inquiry of October 28, 1875, Thornton replied that he hoped the United States would not press the question, and that no harm could come from postponement. Fish reminded him that they had consumed four years on the question.148 Replying to another inquiry, that of February 17, 1876, Thornton remarked the "disinclination" which Her Majesty's Government had to proceed in the matter and suggested delay until some occasion presented a necessity for doing something. The American Secre- tary of State pointed out that this would be just the moment when it might be impossible to proceed, and that the rules were intended to guard against that contingency.147 On the following would accept the three rules, that a refusal would lose much of its im- portance if the two governments could agree on the mode in which they could "with most dignity as regarded themselves, and with the greatest advantage for the future, make the submission" (ibid., p. 143 Correspondence . . . respecting the communication to other Govern- ments of the Rules of the Treaty of Washington, C.

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220 THE INTERNATIONAL LAW STANDARD March 9, Thornton intimated that if the rules were submitted, Great Britain might desire to make some disclaimers. Fish held to the position that the matter should be disposed of, and de- clared that the United States was willing to submit the rules as agreed, "or to do whatever could properly be done toward meeting any wishes which Her Majesty's Government may enter- tain, and to co-operate in guarding against any unpleasant or injurious consequence which might arise, or be apprehended from their submission." He expressed the opinion that injury was more likely to occur through delay until serious events should precipitate a discussion of a practical application of the rules and the two governments be called upon to consider the extent 148 of their obligation under this part of the treaty. Toward the end of the long-drawn-out conversations, Fish suggested that the same clause by which the contracting parties agreed to ob- serve the rules between themselves in the future required that they bring them to the knowledge of other maritime powers and invite accession; he said that the stipulation was regarded by the United States as indivisible, so that a failure to comply with one part might, and probably would, be held to carry with it the 149 "avoidance and nullity" of the other. But even this did not lead to an arrangement, and the last clause in the sixth article of 150 the treaty remained unfulfilled. 150 The method of prescribing, for an arbitral settlement, one or more specific rules and international law "not inconsistent therewith," for which the Treaty of Washington provisions concerning the Alabama claims fur- nished a precedent, found application two and a half decades later in the treaty of February 2, 1897, which the United States was able to arrange, after the Anglo-American crisis of 1895-96, between Great Britain and Venezuela in the boundary dispute between those two powers. The major rule to be applied by the arbitrators in the settlement of the boundary dispute was: "Adverse holding or prescription during a period of fifty years shall make good title." The arbitrators were also directed to apply "such principles of international law not inconsistent" with the stipulated rules as they might determine to be applicable; by the treaty terms, the arbitrators were permitted some latitude in determining the boundary line (article IV, a text of which is in Pari.

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WAR AND NEUTRALITY 2 2 1 As elements of law to be recognized in the future, the rules of the treaty thus had an inauspicious beginning. Before the end of the century some doubt arose of whether the rules continued to bind the two countries which originally contracted to observe them, and the opinion was expressed that instead of settling disputed points, the rules had raised new difficulties.1"1 At the Second Hague Conference in 1907, Louis Renault, in his report on a project of a convention concerning the rights and duties of states in maritime war, referred to the expression "due dili- gence" in the Treaty of Washington as having become cele- brated by its obscurity since it had been solemnly interpreted.152 A regulation on the general subject with which Great Britain and the United States had attempted to deal through the rules of 1871 was at length incorporated in Hague Convention XIII of 1907. The phrasing was changed, however, so as to omit a refer- ence to "due diligence" and to include references to the neutral's duty to use "the means at its disposal." Article 8 of the conven- tion provided: 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 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.153 Julian Pauncefote, seems to have contended that thirty years' settlement should be sufficient to secure title by prescription. The American govern- ment would not agree to less than fifty years (James Louis Garvin, The Life of Joseph Chamberlain [1932-1934], III, 164). For other criticisms of the principal rules of the Treaty of Washington at the same conference, see the remarks of Ruy Barbosa, who invoked the opinion of Hall, Lawrence, Wheaton, and others, and pointed to practice during the Russo-Japanese war, in the effort to show that the furnishing of warships from neutral countries was not contrary to established, customary international law (ibid., III, 468—474).

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222 THE INTERNATIONAL LAW STANDARD The preceding article stated specifically that a neutral power was not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunitions, or, in general, of any- thing which could be of use to an army or fleet. When, early in the period of the First World War, the question was raised of preventing American vessels from furnishing coal and supplies to belligerent warships at sea, the Attorney General of the United States suggested that "no neutral nation is called upon to interfere with the commercial activities of its citizens further than may be required by the doctrines and precedents of 154 international law." In the course of World War II, there was 155 some preventive action by neutrals. The applicability of Hague Convention XIII in 1940, when the United States supplied over- age destroyers to be used by the British in return for bases in the Western Hemisphere, and consistency (with the convention) of the policy which the United States followed from the passage of the Lend-Lease Act of 1941 to the date when the United States 156 became a belligerent, will receive separate attention. Acceptance of the substance of the three rules as customary or conventional international law did not set at rest all ques- tions concerning legal responsibility for raiding of commerce at sea. Charles Francis Adams thought it safe to predict that the Florida, the Alabama, and the Shenandoah would go down in his- tory, not as pirates, "but as the last lineal survivors of the black- 157 flagged banditti of the olden time." As Confederate leaders culties to which such divergence might give rise; in cases not covered by the convention, the parties agreed that it was "expedient to take into con- sideration the general principles of the law of nations." By article 18, bel- ligerent warships were forbidden to "make use of neutral ports, roadsteads, or territorial waters for replenishing or increasing their supplies of war material or their armament, or for completing their crews." By article 25, a neutral power was to be "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." 1 5 4 3 0 Op. 155 See, for example, the statement by Cemil Bilsel regarding justification of Turkey's action in preventing the departure of two Roumanian vessels from Istanbul harbor (Amer.

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WAR AND NEUTRALITY 2 2 3 pointed out, however, the named vessels were under responsible commanders operating for a government whose belligerency was recognized. Neutrality rules applicable not only under such cir- cumstances but under conditions of international war were to come in for critical reexamination, as the following section will endeavor to show. CHANGING CONCEPTS OF NEUTRAL DUTIES a. Developments Prior to the Second World War Provisions in treaties of the United States relating to neutrality go farther back than the date of formulation by President Wash- ington and his Cabinet of international law principles asserting neutral rights and obligations as "crystallized from . . . European treaties and practice."158 Many clauses in early treaties related to contraband of war. Those with France (1778), the Nether- lands (1782), Sweden (1783), Prussia (1785 and 1799), Great Britain (1794), and Spain (1795) contained contraband lists.

evitably arose of whether international customary law set limits

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2 2 4 THE INTERNATIONAL L A W S T A N D A R D evitably arose of whether international customary law set limits to what could be classified as contraband. In actual practice the claim that each state could define contraband for its own pur- pose, except in so far as it had limited itself by treaties (and then only in relation to the other signatories), seems not to have been effectively denied.161 When belligerents in the First World W a r greatly extended contraband lists, the Department of State in a circular of August 15, 1914, invoked "well-recognized prin- ciples of international law" in support of a neutral's right to trade with belligerents, but added, regarding contraband: W h a t is contraband of war is to be determined by international law and usage, influenced in some degree by the positions assumed by the belligerents. As there is no final tribunal for the definite determination of these international questions, they are not as determinable as ques- tions of domestic law. There are no general treaties amongst the nations of the world determinative of contraband of war.1®2 Such a "general treaty" was the objective in the framing of the Declaration of London, the signatories to which "agreed that the rules . . . correspond in substance with the generally rec- ognized principles of international law."163 The declaration was not ratified, and the problem of defining contraband remained without a multilateral settlement.184 Some of the bilateral treaties which had sought to meet the problem had also been designed to assure that judicial procedure in the captor state against alleged contraband carriers would be "according to law," a phrasing which would presumably be broad enough to include international law relating to prize.1"6 1 6 1 The statement to the contrary in the Prometheus case (2 Hong Kong Law Reports 207 (1906-07), does not seem to express what was the pre- vailing rule of law. See the statement of Attorney General Knox (section 1, note 13, supra). On the general development, see Geof- frey Butler and Simon Maccoby, The Development of International Law (1928), pp.

flack-listing device in the First World War, that it condemned "without

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WAR AND NEUTRALITY 2 2 5 Legal controversies about neutral duties under treaties have, of course, involved more than definition of contraband and pro- cedure in prize courts. At the time of the Crimean War, for example, there was a question of foreign enlistments in the United States, with particular reference to the Anglo-American Convention of July 3, 1815, as continued by conventions of 1818 and 1827. The Attorney General at the time found that some treaty provisions which did not refer to the general law at all were "but declaratory of the law of nations."1 8 8 At the beginning of the First World W a r there were serious questions that were not settled, although the "doctrine" and "precedents" of inter- national law might be acknowledged.167 It seems clear that not all of the Hague Conventions of 1907 were declaratory of existing international law, a good example being article 2 3 of Con- vention XIII.1 8 8 Stat. XVIII); El Salvador, 1850, 10 Stat. The treaties of amity, commerce, and navigation which the United States made with Latin American countries up to about the middle of the century fol- lowed, to a large extent, the same general form. Illustrative of the United States overnment's critical attitude is the statement made concerning the British flack-listing device in the First World War, that it condemned "without notice, without hearing, and in advance" (For.

226 THE INTERNATIONAL LAW STANDARD

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226 THE INTERNATIONAL LAW STANDARD In the period between the First and Second World Wars, multilateral treaty making in the Western Hemisphere sometimes involved references to international law relating to neutrality, but without complete clarification of substantive rules. In the same year that the Kellogg-Briand Pact became a part of the law of the United States, this country had a part in consolidat- ing through treaties some of the codification work of the Com- mission of Jurists which served the Conference of American States. The United States delegation to the Sixth Conference was instructed that, "in many cases the Commission . . . has set forth what it apparently has considered International Law should be." Of the projects submitted at this conference, the instruc- tions noted: "Most of them contain subjects which are either outside the realm of International Law or on which the practice of Nations has not been sufficiently uniform as to warrant the con- 169 clusion that it has crystallized into International Law." How- ever, the Convention regarding Maritime Neutrality, which was one of the. products of the conference, seems to have been con- sidered by the American government as in line with the basic assumptions underlying the Hague Conventions of 1907 con- cerning neutrality. In the preamble of the 1928 agreement, the parties acknowledged that neutrality "creates rights and imposes obligations of impartiality," and the first article referred to cargo 170 "prohibited" by international law. In regard to one article, he raised the question of whether it was in accordance with international law and, concerning another, the question of whether it was more specific than a corresponding article of Hague Convention XIII of 1907. A draft submitted by a subcom- mittee to the Committee on Public International Law on February 14 con- tained the expression "prohibited transport." On the same day, in a session of the committee, Dr.

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WAR AND NEUTRALITY 2 2 7 Five years later the Anti-War Treaty contemplated the adop- tion by the parties of a solidary attitude in the event of a con- flict and made mention of the means authorized by international law, but did not specify those means.171 The Buenos Aires Con- vention of December 23, 1936, for Coordination, Extension and Fulfillment of Existing Treaties, was signed without prejudice to the "universal principles of neutrality" in the event of war out- side the Western Hemisphere. Colombia's reservation expressed the view that the treaty words, "in their character as neutrals," implied "a new concept of international law which allows a dis- tinction to be drawn between the aggressor and the attacked, and to treat them differently," but the United States ratified the convention subject to the declaration that reservations were not amendments to the text and not intended to be controlling upon the United States.172 In certain bilateral commitments of the period, the United States included exceptions clauses referring more or less specifi- cally to neutrality,173 but in view of the Congressional joint The draft convention had originally contained provisions intended, in the interest of neutrals, to change existing practice, but there was objection to variations from general usage, and the subcommittee took account of desires that there should be general conformity to the practice of nations. The con- vention as finally approved followed largely Hague Convention XIII of 1907, with some changes to take into account measures that neutrals had taken to preserve their rights during the First World War. It was considered "indis- pensable that the practice of nations should be strictly observed, as it would be undesirable on the part of the American states to attempt to change the general rights of all neutrals by a special agreement of their own" (Report of the Delegates of the United. States of America to the Sixth International Conference of American States [1928], pp. Exceptions clauses commonly referred to obligations under treaties as well as to neutrality in more general terms.

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2 2 8 THE INTERNATIONAL LAW STANDARD resolution of August 31, 1935, as amended February 9, 1936, and the Neutrality Act of May 1, 1937, it would seem that some of these clauses contemplated measures that were parts of municipal law or authorized thereby, even if the latter went beyond what international law required.174 More significant than some of the technical provisions in bi- lateral treaties was the developing idea that states resorting to war should not thereby acquire rights. The use made in this connection of the Kellogg-Briand Pact, even before the Second World War, has already been noted.175 About the middle of the interwar period, a British government memorandum had de- clared that "as between Members of the League, there can be no neutral rights, because there can be no neutrals."176 While four South American states declared their neutrality in the Chaco W a r in 1933, the Commission of Neutrals in the Chaco by which the provisions were not to interfere with rights or obligations arising under the Covenant of the League of Nations. 174 As is well known, the United States neutrality legislation of 1935 and 1936, as applied to embargoes upon arms and munitions destined for Italy, was questioned by certain of its critics as possibly in violation of an existing commercial treaty with Italy. 14433): "I cannot . . . subscribe to the doctrine that we should in· advance by statute put ourselves in a plaster cast internationally, and give up whatever international influence America may possess toward peace and toward the pacification of disputes throughout all the world. Fenwick, International Law (3d ed., 1948), pp. Differences concerning interpretation or execution of the agreement were to be decided by the pacific means recognizd by international law "in conformity with treaties and conventions in force between the Parties." 175 See Chapter II, section 1, supra.

W A R AND N E U T R A L I T Y 229

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W A R AND N E U T R A L I T Y 229 Dispute seemed to emphasize the transitional state of funda- mental rules when it referred to a "re-examination of many formerly existing precepts of international law," and observed: "An effective rule of international procedure does not always come into being fully grown, but arrives at its greatest prestige through a period of growth starting often from the mere sowing of an idea which acquires force and vigor through its appeal to 177 the imagination of the peoples . . . of the world." In the early years of the nation's history the United States had sometimes derived commercial advantage from its neu- 178 trality, and in the First World War there was a near doubling of export trade from 1914 to 1916 and, in nearly three years of neutrality, an increase in the excess of exports over imports from approximately four hundred seventy millions to over two 179 billions of dollars. However, with the development of new devices for business controls in wartime, for commerce de- struction, and for the isolation of countries through new-style "blockades," there had come to be less opportunity for neutral traders to profit. The idea of neutrality as a hostilities-limiting device, which draws lines within which the battles may go on, in a sense treats war as a disease, and denies that any war is 180 a direct concern of every state, was offset by the growing feeling that an attitude of indifference to war-making was not a moral one. Five years before the outbreak of World War II, a group of private jurists concluded that if one party to the Kellogg-Briand 177 Translation in For. 1 7 8 On the importance of commercial interests in the neutrality of Wash- ington's administration, see C. Hyneman, The First American Neutrality (1934), and С.

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230 THE INTERNATIONAL LAW STANDARD Pact should resort to war in violation of it, other parties in their relations with the violator might rightfully decline to observe the duties prescribed by international law, apart from the Pact, for 181 a neutral in relation to a belligerent. On the eve of the Second World War, a group of American jurists set forth, in the final article of a draft convention on Rights and Duties of Neutral States in Naval and Aerial War, published for the Harvard Re- search in International Law, that "every neutral State has a direct interest in the observance by belligerents of the law de- fining neutral rights, and a violation . . . of a neutral right of one neutral State constitutes a violation of a neutral right of all 182 neutral States." At the same time certain of these jurists pro- duced a set of draft rules which seemed to reflect changing con- cepts of neutral duties, since their authors looked to new relation- ships between aggressors and outside states as well as between the victims of aggression and outside states. In the draft appeared such terms as "defending states," co-defending states" and "sup- 183 porting states," as well as the term "aggressor." In his speech of October 5, 1937, President Roosevelt vigor- ously proclaimed the intention to quarantine aggressors. Warn- ing that the "landmarks and traditions which have marked the progress of civilization toward a condition of law, order and justice" were "being wiped away," he declared that "the peace- loving nations must make a concerted effort in opposition to those violations of treaties and those ignorings of humane in- stincts which today are creating a state of international anarchy and instability from which there is no escape through mere isola- tion." On the unsoundness of a policy of indifference to foreign wars, he declared that "there is a solidarity and interdependence about the modern world, both technically and morally, which makes it impossible for any nation completely to isolate itself from 1 8 1 " 'Budapest' Articles of Interpretation of the Pact for the Renunciation of War," adopted at Budapest, International Law Association: Report of the 38th Conference (1934), p. On the general subject of a more adequate multilateral treaty base for neutrality and possible intemeutral cooperation for enforcing neutral rights, see Philip C. IV, Today and Tomorrow, published in 1936.

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WAR AND NEUTRALITY 231 economic and political upheavals in the rest of the world," and that "the 90 per cent who want to live in peace under the law and in accordance with moral standards that have received almost universal acceptance through the centuries, can and must find some way to make their will prevail." As to the nature of the standards which he had in mind, the President said, "The ques- tions involved relate not merely to violations of specific pro- visions of particular treaties; they are questions of war and of peace, of international law, and especially of principles of hu- manity. But they also involve problems of world economy, world security, and 184 world humanity." The emerging problem of reconciling traditional concepts of neutrality with the kind of quarantining of aggressors which the President advocated, or with some effective form of collective 185 security, inevitably involved a rethinking of the whole concept of war in relation to the law. Developments During and Subsequent to the Second World War As applied in the Second World War, neutrality practice was 188 in some instances affected by preöxisting treaties. 185 For the view that it is possible to reconcile a kind of neutrality, and the use of reprisals, with collective security, see H. Lauterpacht, "Neutrality and Collective Security," Politica, II (1936), 133-155. For an argument that there was, even under traditional neutrality, no neutral duty to act impar- tially, see Clyde Eagleton, "The Duty of Impartiality on the Part of a Neutral," Amer.

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232 THE INTERNATIONAL LAW STANDARD 187 the neutrals were, to England, only a means to an end. After the German invasion of Belgium, the Netherlands, Norway, and Denmark, a British editorial opinion viewed neutrality, in the situation which had developed, as an "anachronism," and re- garded the Nazi war on neutrals not as a mere incident dictated by military exigencies but as an essential part of the plans of the 188 German leaders. In the United States, public opinion moved but slowly toward the principles which President Roosevelt had enunciated in his speech of October 5, 1937. As late as September 21, 1939, the President, at the time of his asking Congress to repeal the em- bargo upon arms, spoke of putting the country "back on the 189 solid footing of real and traditional neutrality." The making of the Hull-Lothian agreement of September 2, 1940, marked a definite veering away, by the executive, from old-style neutrality. The Attorney General's opinion relating to the agreement was directed to a technical analysis of municipal 190 law provisions and did not touch upon the questions of in- ternational law involved. An authority on American constitu- tional law expressed the view that the executive had invaded the field of Congressional power to declare war (by departing from the country's duty as a neutral and thus drawing the nation 181 closer to war) .

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WAR AND N E U T R A L I T Y 233 192 ternational law. By the month following the Hull-Lothian agreement it was being concluded by some legalists that the United States was not a neutral in relation to the European hos- 193 tilities. That the Axis states were making propaganda uses of inter- national law was suggested by the Secretary of State in an address of October 26, 1940, to the Press Club of Washington. Cordell Hull said, of the nations "vaguely describing themselves as the 'have nots'": They cynically disregard every right of neutral nations, and, having occupied several such countries, they then proceed to warn all peaceful nations that they must remain strictly neutral until an invading force is actually crossing their borders.194 Even under the League of Nations plan for collective security, there was no clear acceptance by all member states of the notion that, if neutrality were no longer to mean the acceptance of duties in relation to an aggressor, each state must take sides, in a military way or otherwise. In the early part of World War II there evolved a new descriptive term, "nonbelligerency," whose connotation was difficult to determine, unless, indeed, by rea- 195 soning simply that neutral duties were being violated. See also Josef Kunz, "Neutrality and the European War, 1939- 1940," Mich.

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234 THE INTERNATIONAL LAW STANDARD 196 with some kind of peace. In the United States, in such a period as that from June 1940 to December 1941, advocacy of neutrality in the traditional sense tended to be widely branded as an isolationist, escapist device which might lull into unpreparedness and cover a retreat from a moral choice. The Secre- tary of State and administration leaders in Congress relied upon the principle of self-defense as a basic right of all nations and one which, it was urged, must take precedence over anything in 197 the Hague Conventions or in customary international law. The majority of the Senate Foreign Relations Committee appeared to endorse the Budapest (International Law Association) Articles of Interpretation of the Kellogg-Briand Pact when it said, in reporting the Lend- Lease bill: The Kellogg-Briand Pact is recognized by eminent scholars of inter- national law to give any signatory the power, where the pact's provi- 196 See Robert R. Code and the quoted provisions of the Hague Convention are de- claratory of international law on the subjects mentioned and that to do the things contemplated by the proposed act would render us unneutral. Ree. (10) A281, January 29, 1941; also the statement in the majority report of the Foreign Relations Committee (cited in note 199) that mutuality is a doctrine that prevails in international law, as in equity.

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WAR AND NEUTRALITY 235 sions are violated by another nation, to cease to abide by the neutrality laws which govern in normal times, and to "Supply the State attacked with financial or material assistance, including munitions of war."199 In the course of discussion on the bill, Secretary of War Stimson expressed the view that the nations accepting the Pact had "adopted really a new legal view of the word war' in the relations and the obligations and the duties that come under it as between each other." 200 In the Senate debate Senator Warren R. Austin endeavored to show that the "rules of the game" had been changed—that international law had been changed not only by treaty but by custom.201 Arguments which the opponents of the bill drew from the law of nations varied from simple statements that the measure violated "every principle of neutrality and international law"202 and would "violate American treaties, laws, traditions, and what remains of international law," 203 to the accusation that the bill would be a "legislative condonation of acts of war."204 The Buda- pest Articles of Interpretation, the opposition urged, would "violate everything the people of the United States ever stood for"; "under no circumstances whatever, under international law as commonly interpreted and enforced today," it was argued, could the United States "justify the particular course sought for under this bill." 205 On the general subject of continued ap- 199 To Promote the Defense of the United States (H.R. 2 0 0 Senate Committee on Foreign Relations, 77th Cong., 1st Sess., Hearings on S.27S (superseded by H.R. 1 (January 27-February 3, 1 9 4 1 ) , p. Ree. ( 1 ) 1050, Februaiy 17, 1941. Senator Austin applied this in an endeavor to show that the United States, in opening ports to the British navy, was acting realistically in its own defense.

2 3 6 THE INTERNATIONAL LAW STANDARD

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2 3 6 THE INTERNATIONAL LAW STANDARD plicability of rules fixing neutral rights and duties, Senator Guy M. Gillette secured Senate approval for printing in the Record a statement by Dr. Walsh, S.J., which con- tained the following: For every panel of distinguished authorities appearing in support of the contention that no international law is violated an equally imposing aggregation of experienced jurists is available ruling that it is flagrant violation of international law, at least of the law of nations, which the Government of the United States has so frequently invoked. The Kellogg Pact did not suspend these obligations, since several important reservations made by signatories respecting special circumstances and regional interests practically nullified the high purpose of that agree- ment and left each signatory free to act exactly as he deemed advisable 206 for his national defense. Opponents of Lend-Lease in the House of Representatives failed to get favorable action on the Dworshak amendment, which would have inserted in the bill the statement that "Noth- ing in this act shall be construed as authorizing or permitting 207 the authorization of any violation of international law." Some cynical suggestions concerning international law came in the course of the debate, such as the observation that the law was 208 "practically non-existent," that it had gone "by the board" so 209 far as Hitler and the Axis Powers were concerned, that the law is "what victorious nations say it is," and that it is "written by the sword . . . and interpreted solely by victorious con- 210 querors." One member of the House suggested that international law is only a set of rules by which nations can get to- gether after their troubles are over and see how much they owe each so convenient an interpretation of our rights and duties with respect to other nations, but I may be pardoned for hoping that the United States will not sink to their moral and ethical level. The same speaker expressed the view that "international law has not gone entirely by the board as far as Guatemala and other friendly nations are concerned." 2X0 Ibid. ( 2 ) 1256, February 21, 1941 (remarks of Senator William J.

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That is all its effect is, even though some say that interna- tional law may prevent our doing some things that are to our interest to do. In the present-day world Hitler, Mussolini, and every other ruler abroad ignores international law and the rules and regulations drawn up in accordance with those general basic principles . . . at any 211 time it pleases them so to do. Hearings on the proposed legislation elicited various opinions on the nature of treaties in general, particularly multilateral ones. One idea was that if Germany had breached the Kellogg-Briand Pact, she had not done so with regard to the United States, and therefore the United States could not depart from preöxisting rules of international law merely because of what Germany had done—a kind of segregated bilaterality within the multilateral 212 treaty structure being suggested. With the passage of the bill the United States became com- mitted to a positive program not consistent with notions of neutral obligations under traditional rules but ably and realisti- cally urged as thoroughly consistent with the new conception of aggressive war and its legal consequences for the aggressor. It was, of course, possible to make a case for United States policy by positing that the conventional rules regarding neutrality, specifically those in the Hague Conventions of 1907, were tech- 211 Ibid. ( 1 ) 576, February 5, 1941 (remarks of Representative Edouard V.

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238 THE INTERNATIONAL LAW STANDARD nically inapplicable or that, if they were applicable, the aggressor states had forfeited any right which might have existed under them to demand the traditional abstention and impartiality of states not engaged in hostilities. Such a position would not necessarily have implied the end of neutrality as a body of rules 214 of international law. Spokesman for the new point of view in American foreign policy seemed, however, to anticipate some- thing more than escape from traditional neutral duties through interpretation of particular treaties. In his Havana address of March 27, 1941, Attorney General Robert H. Jackson took the position that the League of Nations Covenant had begun the modification of the old concept that all wars were just and legal, and submitted that the Pact of Paris and the Argentine Anti- War Treaty had completed the outlawry of war. While claiming that the applicability of traditional neutrality rules had thus been superseded (although he thought some scholarship had "not caught up" with the century), and that as a result third parties had a right (although not a duty) of discriminating against an aggressor, he said that the new multilateral treaties which he mentioned, "by altering fundamentally the place of war in in- ternational law," had "effected a parallel change in the law and status of neutrality." The United States, he added, claimed "the 215 wider rights which that change imparts." As a separate ground to provide legal justification for the new American policy, the Attorney General invoked the funda- mental international law principle of self-defense.

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WAR AND NEUTRALITY 2 3 9 out to do, notwithstanding the fact that in certain quarters the government was charged with "ignoring or violating the less fundamental rules of neutrality" which, the Attorney General submitted, were "both in fact and in law, irrelevant to the 216 existing situations." The extent of departure, so far as the United States was con- cerned, from a "perfect" neutrality was apparent from the fact that some of the sinkings which it denounced in 1941 were of ships that were actually in belligerent-convoyed groups. The strong moral position of the United States and its military and industrial strength were such that they could be a major factor in effecting the transition from the traditional concept of neu- trality to a new one. The solution did not lie in the mere creation of a more adequate multilateral treaty base for neutrality, with 21T interneutral cooperation for enforcing action under it. Re- tention of the concept of neutrality through such an arrange- ment, even with recognition of the rule of some discrimination against law-breakers as a matter of legal right (and not simply a matter of practice), would have fallen short of what the archi- tects of the United Nations Charter eventually devised. The transition to a world-wide collective security system could not be suddenly accomplished. Welles testified, with respect to the meeting between Presi- dent Roosevelt and Prime Minister Churchill which resulted in the Atlantic Charter: "The President had during preceding weeks told me of his thought that in view of the increasingly serious world situation, in view of the spread of the war in Europe, that nothing would be more valuable from the stand- point of keeping alive in a . . . darkening world some principles of interna- tional law, some principles of moral and human decency, than for him to make some kind of a public statement of the objectives in international relations in which the Government of the United States believed" (Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack [1946], 79th Cong., 1st Sess., pt.

240 THE INTERNATIONAL LAW STANDARD

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240 THE INTERNATIONAL LAW STANDARD the early stages of the process the central importance of the principle of legality, as distinct from power, should not receive 218 primary emphasis. Because of the very unevenness in the in- ternational community, some states must naturally accept more responsibilities than others for the maintenance of international peace and security, and some of those not taking primary roles of enforcement in the suppression of aggression may be nomi- nally committed but relatively inactive. The coming into use, in journalistic discussions in 1951 of possible alignments in a large- scale controversy, of such an expression as "neutralism," indicates that, however far-reaching has been the change in the legal con- ception of neutrality, some of the practical problems remain. Among the legal questions which arise in connection with the application of the international law standard under conditions of the new collective security, two may be noted here because of their bearing upon treaty relationships. Thus it is somewhat striking to find, in the Geneva Conventions of August 12, 1949, for the protection of war victims, numerous references in such bodies of rules as those on the treatment of prisoners of war and on the protection of civilian persons in time of war, to "neutral state," "neutral 219 power," and "neutral country." The significance of these men- tions of neutral states, powers, or territories, in multilateral formulations which also contain rather frequent references to international law, can only be surmised. Clyde Eagleton, "International Law and the Charter of the United Nations," Amer.

WAR AND NEUTRALITY 241

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WAR AND NEUTRALITY 241 meaning would be found not inconsistent with the new collective security system. That system is not directly referred to in Resolution 10 of the Geneva Conference, according to which, "The Conference considers that the conditions under which a Party to a conflict can be recognized as a belligerent by Powers not taking part in this conflict, are governed by the general rules of international law on the subject and are in no way modified by the Geneva Conventions." The second question is the more fundamental one of whether the elements of law on aggression and the duty to maintain in- ternational peace and security have now come to be based not merely upon the Charter of the United Nations and such other multilateral instruments as those now in force in the Western Hemisphere, but have come to be parts of international common law. It is, of course, true that not all members of the community of nations are parties to the basic treaty arrange- 220 ments referred to. It would appear, however, that only the most ardent of positivists would contend that such a provision as article II, paragraph 6, of the United Nations Charter repre- sents nothing more than a device looking to the imposition, in violation of international law rights, of obligations upon non- member states. Constitutional development within the frame- work of the United Nations has been flexible enough to permit assumptions of power, by the General Assembly, such as that under the Uniting for Peace Resolution of 1950, where the purpose is the central one of preserving international peace and security. Article 99 of the Convention Relative to the Treatment of Prisoners of War contains a reference to "an act . . . forbidden . . . by international law, in force." Spain's signature of the convention was subject to the reservation that "under 'International Law in force' (article 99) Spain understands she only accepts that which arises from contractual sources or which has been previously elaborated by organizations in which she par- ticipates."

SUMMARY AND CONCLUSION

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C h a p t e r V I SUMMARY AND CONCLUSION States making treaties against a background of already existing law may by specific wording in their agreements take cognizance of that law as it is found in custom and prior treaties. They may reaffirm and reacknowledge in a very general way, or may indicate some special application to be made of, established 1 rules. They may, of course, project new rules designed for gen- eral or universal acceptance. Or they may contract that certain of the generally recognized rules shall not apply in the normal way in the relations of the signatories inter se. In any of these situations the effect of a treaty reference to international law may present a question of interpretation, and the latter may be complicated by reason of factors other than legal ones which have affected the 2 making of the agreement. The treaty practice of the United States reveals much integra- tion of conventional rules with customary ones.