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CHAPTER VI.

TREATIES.-AMICABLE SETTLEMENT OF DISPUTES.-
MEASURES SHORT OF WAR.

Treaties. By the regulations of the Navy of the United States a senior naval officer when abroad is directed to guard against any actual or threatened violation of the principles of international law or treaty rights to the injury of the United States or its citizens on the part of foreign authorities. The responsibility for any action taken by a naval force rests solely upon the commanding officer thereof. It is hence desirable that when on a foreign station the commanding officers, and those likely to be in command, should make themselves familiar with the treaties with the countries within the limits of their station.

Treaties are not international law, but as contracts between nations, treaties are subject to a certain extent to the rules of international law. A treaty which is in any of its parts a direct violation of a well-known fundamental rule of international law is not binding upon the parties concerned or third parties. A treaty, for example, which establishes jurisdiction over the high seas, or militates against the equality of sovereign states, would be void and of no effect. Treaties 'do not make international law, but they do show tendencies which may eventually become accepted rules. When changes become well established it is not necessary to have treaty conditions upon the point.

Treaties, as distinguished from conventions, protocols and declarations, are of primary importance, stipulating, as they generally do concerning political or large commercial sub

jects. Conventions generally concern specific matters of minor importance. Protocol, a word generally used to describe the daily minutes of a conference, is sometimes used as the name of a brief agreement or convention of binding force. Declaration is used often as an enunciation of a general doctrine or principles which shall be binding upon the assenting parties, like the Declaration of Paris, and of London.

The right to make treaties is included in the fundamental rights of a sovereign state. It can be exercised also in a partsovereign state, like Egypt, to the extent permitted by the suzerain power.

The treaty-making power of a state is in the hands of its ruler, subject to more or less restriction, as the constitution of the state provides. With us, for example, the President can only conclude treaties with the advice and consent of the Senate. To make a treaty financially effective the House of Representatives is also called upon to act.

As commander-in-chief the President can, acting alone, in the exercise of his military powers, conclude armistices and arrange conventions with an enemy. So also can the commander-in-chief of an army or of a naval force. These latter are, however, subject to review by the President, and, as in the case of General Sherman in North Carolina during the Civil War, subject to disapproval and disavowal.

The Constitution of the United States provides that all treaties made under the authority of the United States shall be the supreme law of the land, and that the judges in every state shall be bound thereby, anything in the constitution and laws of any state of the Union to the contrary notwithstanding.

A treaty is not binding, of course, until it is duly ratified by the proper authorities of each state. Unless otherwise provided the treaty, however, goes into effect from the date of its signature.

The question of the interpretation of treaties is one that has given rise to many disputes in our country, as well as in others of greater age. Sentences, phrases and words have become the object of much wrangling. T. J. Lawrence says upon this subject that "we can hardly venture to go beyond the statements that ordinary words must be taken in an ordinary sense, and technical words in a technical sense, and that doubtful sentences and expressions should be interpreted by the context so as to make the treaty homogeneous and not self-contradictory. But when states get into controversy about the interpretation of a treaty they often make a new agreement, clearing up the disputed points in the way that seems most convenient at the time, which is not always the way pointed out by the strict rules of interpretation."1

In regard to the order of the execution of a treaty, it is generally considered that the special provisions take precedence over the general provisions, and other things being equal, that the more important matters take precedence over the less important.

When two treaties made between the same states at different times conflict, the later treaty governs, it being made or is supposed to be made in substitution for the former treaty.

When two treaties conflict which have been made with different states at different dates, the earlier treaty governs, it being unfair to violate an engagement made with one party by a later agreement made with another party without the consent of the first. (Russia and Treaty of San Stefano,

1878, vs. Treaty of Paris, 1856.)

Perpetual treaties.-The question of continuous obligations of treaties, especially of treaties of long or perpetual duration, has been one extensively discussed by publicists and statesmen. The Clayton-Bulwer treaty made between the

1Lawrence's Principles of Int. Law, p. 287, 3d edn.

United States and Great Britain, which was a perpetual one, causing long and acrimonious discussion, is an example of the bad nature of perpetual treaties. Two schools of publicists have gradually formed as to the binding force of perpetual treaties. One school would have the obligations of treaties enforced as strictly as the letter of municipal law, and urges that no treaty should be abrogated without the consent of all the parties concerned; the other school, which may be termed the continental school, urges that there may arrive a time in a nation's history when, by the nature of a treaty or the changed condition of affairs, a state is justified in refusing to be longer held by a treaty. The dispute has been termed as Law vs. Progress. Sir Henry Maine says: "In the case of progressive societies it may be laid down that social necessities and social opinion are always more or less in advance of law. Law is stable, society is progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed." To my mind, a conservative modification of perpetual treaties when outgrown should be made. If an iron-bound refusal is met with then the abrogation of the treaty should follow.

The Treaty of Vienna made in 1815 was violated when in 1860 Italy was unified. In the same way the consolidation of Germany in 1866 would have been stopped on account of the opposition of some of the minor German states. As to the setting aside of the Treaty of Berlin by Austria, with respect to Bosnia and Herzegovina in 1909, this is a matter of too recent knowledge to require more than a reference.

A recent writer well says, in closing a discussion upon this subject, that "each case has circumstances that are peculiar to it, and we must judge it on its own merits, bearing in mind on the one hand that good faith is a duty incumbent on states as well as individuals, and on the other that no age can be so

wise and good as to make its treaties the rule for all succeeding time." 2

Measures short of war.-The modes of putting stress upon an offending state which are of a forcible nature, though short of actual war, can be classified under two general heads of retorsions and reprisals.

Retorsions. Retorsions are retaliations in kind. They are always unfriendly, though they may not always be forcible or warlike. If a state is wanting in courtesy or friendship, if it has placed discriminating duties or restrictions upon intercourse, or if it has given any specific cause for offense by certain conduct, then the injured state can adopt a similar line of conduct in order to bring both the offending state to a sense of propriety and justice or to prevent a repetition of the offense.

Reprisals. Reprisals are sometimes known as general reprisals to distinguish them from specials acts done in the course of regular warfare and in accordance with the laws of war.

The following acts of general reprisal done without the existence of intention of war may be considered as having the sanction of usage and of sufficient authority:

1. The sequestration or seizure of the property of the of fending state.

2. The sequestration or seizure of the property of citizens of the offending state.

3. Suspension, partial or complete, of commercial or other intercourse between the two nations.

4. Suspension or annulment of treaties in part or in whole. 5. Withdrawal of all privileges and rights to domiciled citizens of the offending state.

6. A pacific blockade.

2 T. J. Lawrence Principles of Int. Law, 3d edn., p. 289.

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