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it may not always be possible to avert the dangers which may menace person and merchandise."
On May 1, 1915, the sailing date of the Lusitania, the following advertisement, dated April 22nd, appeared in the New York daily papers:
Travellers intending to embark on the Atlantic voyage are reminded that a state of war exists between Germany and her allies and Great Britain and her allies; that the zone of war includes the waters adjacent to the British Isles; that, in accordance with formal notice given by the Imperial German Government, vessels flying the flag of Great Britain or of any of her allies are liable to destruction in these waters, and that travellers sailing in the war zone on ships of Great Britain or her allies do so at their own risk.
IMPERIAL GERMAN EMBASSY, April 22, 1915.
Washington, D. C.
Further, Judge Mayer says:
No trans-Atlantic passenger liner, and certainly none carrying American citizens, had been torpedoed up to that time. The submarines, therefore, could lay their plans with facility to destroy the vessel somewhere on the way from Fastnet to Liverpool, knowing full well the easy prey which would be afforded by an unarmed, unconvoyed well-known merchantman, which from every standpoint of international law had the right to expect a warning before its peaceful passengers were sent to their death. That the attack was deliberate and long contemplated and intended ruthlessly to destroy human life, as well as property, can no longer be open to doubt. And when a foe employs such tactics it is idle and purely speculative to say that the Captain of a merchant ship in doing or not doing something, or in taking one course and not another, was a contributing cause of disaster, or had the Captain not done what he did or had he done something else, then that the ship and her passengers would have evaded their assassins.
I find, therefore, as a fact, that the Captain and hence the petitioner, were not negligent.
This case also recognizes, as in the case of the Paquete Habana, the binding force of international law in the courts of the United States.
Secretary Lansing had said in his note of June 9, 1915, speaking of the Lusitania: “Only her actual resistance to capture or refusal to stop when ordered to do so for the purpose of visit and search could have afforded the commander of the submarine any justification for so much as putting the lives of those on board the ship in jeopardy." This principle was admitted in the German note of May 4, 1916.
The decision of Judge Mayer, while acquitting the Cunard Company for liability for loss of life and property in consequence of the sinking of the Lusitania, also implies that reparation can and should later be demanded from the German Government.
G. G. W.
LEGAL STATUS OF THE BREST-LITOVSK AND BUCHAREST TREATIES IN THE
LIGHT OF RECENT DISCLOSURES AND OF INTERNATIONAL LAW.
Recent disclosures as to the manner in which the Brest-Litovsk and Bucharest Treaties were negotiated, the notorious character of some of the negotiators, and the corrupt nature of the means employed by the German Government in influencing the negotiations, have thrown a flood of light upon these transactions. They have suggested that an examination of the legal status of these treaties in the light of such disclosures and of international law would not be without interest at this time.
The authorities are, in general, agreed that in order that a treaty may be regarded as legally valid, the following conditions must be observed:
1. There must be capacity to contract. The "High Contracting Parties" must be capable of contracting, i.e., they must be in possession of the necessary rights and powers. Thus, a fully sovereign state has full capacity to enter into contracts with other fully sovereign states, and a part or semi-sovereign state has such measure of contracting power as has been retained by or conferred upon it.
2. The negotiators of the treaty must have full powers from their government. They must not act in excess of their powers, or their government is not bound.
3. The treaty must, in a general way, be in conformity with, or at least not in direct violation, of the rules, principles and customs of international law. Thus, a treaty would clearly not be binding which had as one of its objects the subjugation or partition of a country, asserted a proprietary right over a portion of the open sea, or stipulated for the establishment of piracy, privateering or the slave trade.
4. There must be freedom of consent on the part of the contract. ing states and of their agents or negotiators. But in our interpreta
tion of the phrase “freedom of consent, we should not forget that, as stated by one of our greatest authorities,
In international law force and intimidation are permitted means of obtaining redress for wrongs, and it is impossible to look upon permitted means as vitiating the agreement made in consequence of their use, by which redress is provided for. Consent, therefore, is conceived to be freely given in international contracts, notwithstanding that it may have been obtained by force, so long as nothing more is exacted than it may be supposed a state would consent to give, if it were willing to afford compensation for past wrongs and security against the commission of wrongful acts. And as international law cannot measure what is due in a given case, or what is necessary for the protection of a state which declares itself to be in danger, it regards all compacts as valid, notwithstanding the use of force or intimidation, which do not destroy the independence of the state which has been obliged to enter into them. When this point, however, is passed constraint vitiates the agreement, because it cannot be supposed that a state would voluntarily commit suicide by way of reparation or as a measure of protection to another.1
However, as stated by the same authority,
Violence or intimidation used against the person of a sovereign, of a commander, or of any negotiator invested with powers to bind his state, stands upon a different footing. There is no necessary correspondence between the amount of constraint put upon the individual, and the degree to which one state lies at the mercy of the other, and, as in the case of Ferdinand VII at Bayonne, concessions may be extorted which are wholly unjustified by the general relations between the countries. Accordingly all contracts are void which are made under the influence of personal fear.
Freedom of consent does not exist where the consent is determined by erroneous impressions produced through the fraud of the other party to the contract. When this occurs, therefore;—if, for example, in negotiations for a boundary treaty the consent of one of the parties to the adoption of a particular line is determined by the production of a forged map, the agreement is not obligatory upon the deceived party.2
Writing of the effect of duress on treaties, T. J. Lawrence observes :
The only kind of duress which justifies a breach of treaty is the coercion of a sovereign or plenipotentiary to such an extent as to induce him to enter into arrangements which he would never have made but for fear on account of his personal safety. Such was the renunciation of the Spanish crown extorted
1 Hall, A Treatise on Int. Law (7th ed., 1917), § 108, p. 336.
2 Ibid. In favor of this view Hall cites Heffter, § 85; Kluber, § 143, and Bluntschli, $$ 408-9.
by Napoleon at Bayonne in 1907 from Charles IV and his son Ferdinand. The people of Spain broke no faith when they refused to be bound by it and rose in insurrection against Joseph Bonaparte, who had been placed upon the throne.3
Oppenheim furnishes us with the following explanation of the meaning of the phrase "freedom of action” as applied to treaties :
The phrase "freedom of action” applies only to the representatives of the contracting states. It is their freedom of action in consenting to a treaty which must not have been interfered with and which must not have been excluded by other causes. A treaty concluded through intimidation exercised against the representatives of either party or concluded by intoxicated or insane representatives is not binding upon the party so represented. But a state which was forced by circumstances to conclude a treaty containing humiliating terms has no right afterwards to shake off the obligations of such a treaty on the ground that its freedom of action was interfered with at the time.4
Speaking of the effects of error and fraud, Oppenheim says:
Although a treaty was concluded with the real consent of the parties, it is nevertheless not binding if the consent was given in error, or under a delusion produced by a fraud of the other contracting party. If, for instance, a boundary treaty was based upon an incorrect map or a map fraudulently altered by one of the parties, such a treaty would by no means be binding. Although there is freedom of action in such cases, consent has been given under circumstances which prevent the treaty from being binding.5
In his discussion of this subject, Westlake remarks that the
rule that a contract is vitiated by fraud applies, subject to the observation that some latitude must be allowed in negotiating treaties of peace to the right of misleading an adversary which is incident to war. One who while the negotiation continues is still an enemy cannot be expected to abstain from mis-statements bearing on his probable means of victory, which he was entitled to employ yesterday, and which, if the negotiation fails, he may find it necessary to repeat tomorrow. But states at peace are subject as moral beings to the duty of truth, and there are frauds which could not be tolerated even between states at war, such as the production of forged maps on questions of boundary.6
Even a cursory examination of the texts of these treaties in the imperfect form in which they are accessible to students would prove
3 Lawrence, Principles of Int. Law (4th ed.), § 134, p. 327.
that several of the principles above stated have been grossly violated. A consideration of the circumstances under which they appear to have been made, and the methods apparently employed in their making, would show that they were tainted with fraud and illegality of all sorts. Without going into details, it appears that the leading Russian negotiators were in the pay of the German Government and acting, in part at least, as its agents.
While, as pointed out by Westlake in the passage cited above, a certain amount of misrepresentation in the negotiation of a treaty of peace might be expected in an adversary anxious to conceal the actual facts bearing upon his fighting strength, such toleration should certainly not extend to acts of bribery and treachery. May we not also say that treaties which in almost every article violate the fundamental principle upon which they were avowedly based—namely, that of self-determination without annexation or indemnities—are by that very fact alone rendered invalid?
These treaties might also be invalidated on the ground that they virtually destroy the political and economic independence of the States-Russia, Roumania and the Ukraine with which they were negotiated and which they pretend to recognize as equals. With one hand they take away what they profess to give with another, and leave nothing but the shadow or shell of political independence. Thus, by the Roumanian Peace or the Treaties of Bucharest, which may be regarded as “model” treaties of this kind, the Central Powers have attempted to establish a permanent control over the main industries of Roumania. This unfortunate country is forced to sell, at prices to be determined by a “mixed commission,” all its surplus of grain, poultry, cattle, wool, fruit, wine, etc., for a period of seven years after 1919 as well as during the years 1918 and 1919.
The Central Powers also attempted to establish and maintain a complete control over the production and exportation of petroleum. All foreign oil companies are to be expropriated and the Roumanian Government is forced to grant for a term of thirty years to a German-Austrian Company, known as the Oil-Lands Leasehold Company, Limited, the "exclusive right to exploit all the Roumanian Crownlands . . . for the prospecting, for the extraction and manufacture of mineral oils, natural gas, mineral wax, asphalt, and any other bituminous products." This company is granted all manner of rights and privileges, such as the use of public roads, waterways,