Opinion of Mr. Hall. 139 . XIX or under mortgage, should be restored in the same condition in which they were received, so far as depends upon the holder." * With regard to the effect of a collective guarantee, Mr. Hall gives the following opinion." "When a guarantee is given collectively by several Powers, the extent of their obligation is not quite so certain. M. Bluntschli lays down, that they are bound, upon being called upon to act in the manner contemplated by the guarantee, to examine the affair in common for the purpose of seeing whether a case for intervention has arisen, and to agree, if possible, upon a common conclusion and a common action; but that, if no agreement can be arrived at, each guarantor is not only authorized but bound to act separately according to his view of the requirements of the case. A very different doctrine was put forward by Lord Derby in 1867, when explaining in the House of Commons the opinion held by the English Government as to the nature of the obligations undertaken by it in signing the Luxemburg convention of that year. According to him, a collective guarantee means, that, in the event of a violation of neutrality, all the Powers who have signed the treaty may be called upon for their collective action. No one of those Powers is liable to be called upon to act singly or separately. It is a case so to speak of limited liability. We are bound in honour-you cannot place a legal construction upon it-to see, in concert with others, that these arrangements are maintained. But if the other Powers join with us, it is certain that there will be no violation of neutrality. If they, situated exactly as we are, decline to join, we are not bound single-handed to make up the deficiency. Such a guarantee has obviously rather * HALLECK. Edit. Sir Sherston Baker. Vol. I. pp. 235 & 240. the character of a moral sanction to the arrangements which it defends than that of a contingent liability to make war. It would no doubt give a right to make war, but would not necessarily impose the obligation. * It is in favour of the latter construction that a collective guarantee must be supposed to be something different from a several, or a joint and several guarantee, and that if it imposes a duty of separate intervention in the last resort it is not very evident what distinction can be drawn between them." "On the other hand, a guarantee is meaningless if it does no more than provide for common action under circumstances in which the guaranteeing Powers would act together apart from treaty, or for a right of single action under circumstances which would provoke such action as a matter of policy. The only objects of a guarantee are to secure that action shall be taken under circumstances in which a State might not move for its own sake, and to prevent other States from disregarding the arrangement, or attacking the territory, guaranteed by holding up to them the certainty that the force of the guaranteeing Powers will be employed to check them. On the construction given to a collective guarantee by Lord Derby, neither end would be attained. Whichever view be adopted, the word collective is inconvenient. If it imposes a duty, but the extent of the duty is not at least clearly defined. If it can be held to prevent a duty from being imposed, it would be well to abstain from couching agreements in terms which may seriously mislead some of the parties to them, or to avoid making agreements at all which some of the contracting parties may intend from the beginning to be illusory." † * BLUNTSCHLI. § 440. HANSARD. 3rd Ser. 187, 1922. W. E. HALL, Intern, Law, Edit, 1880, p. 289, History of CHAPTER XX. TREATIES AFFECTING INTERNATIONAL LAW. § 140. With regard to the history of International Treaties, Sir Robert Phillimore makes the following observations. "History is a record of the injustice, evil passions, and folly, as well as of the justice, virtues, and wisdom of Nations. The necessities of the epoch in which Grotius wrote left him little or no choice in selecting his examples and precedents chiefly from the antiquity of Greece and Rome. This is not the case with his successors; they have far ampler and far apter materials. But the edifice is not the weaker for the breadth and depth of the classical foundations laid by the first architect; and the principle which guided him is in this, as in most other instances, most valuable to the later and, in spite of their advantages, inferior builders. Secondly, the consent of Nations is evidenced by the contents of treaties, which for this, as well as for other reasons, constitute, a most important part of International Law." 66 Upon this point there is one observation which merits, from its importance, precedence over all others. It is this: No treaty between two or more Nations can affect the general principles of International Law prejudicially to the interest of other Nations not parties to such covenant; at the same time, the contracting parties may introduce into a treaty expressions so generally worded as to be either explanatory $140. of a previously contested point of law, or declaratory of the future interpretation of it, or in other ways frame the covenants of the treaty between themselves so as to lay down an universal principle binding on them, at least, in their intercourse with the rest of the world. Nowhere will this important doctrine be found laid down with greater precision or more irresistible argument, than in Lord Granville's speech delivered in the House of Peers, upon the motion for an address to the Throne approving of the convention with Russia in 1801. Among the many attributes of a statesman possessed in rare excellence by that minister, was his intimate acquaintance with International Jurisprudence in all its branches. His opinion is, therefore, of very great authority. He argued that, by the language of that convention, a new sense, and one hitherto repudiated by Great Britain, with respect to contraband of war, would be introduced, so far at least as Great Britain was concerned, into general International Law; that, inasmuch as some provisions of the treaty with respect to what should be considered contraband of war were merely prospective, and confined to the contracting parties, England and Russia, while other provisions of the same treaty were so couched in the preamble, the body, and certain sections which contained them, as to set forth, not the concession of a special privilege to be enjoyed by contracting parties only, but a recognition of one universal pre-existing right, they must be taken as laying down a general rule for all future discussion with any Power whatever, and as establishing a principle of law which was to decide universally on the just interpretation of the technical term contraband of war.' "The constant consent of various Nations to adopt a particular interpretation of a particular . term is, generally speaking, strong evidence that such is the true international meaning belonging to it. Bynkershoek was in the habit of placing great stress upon the language of treaties, as evidence of the universal consent of Nations and especially on this point. Nor, in this respect, is he at variance with other jurists; it is their universal opinion that not only the particular provisions, but the general spirit of treaties to which at different periods many Nations have been parties, is of great moment and account as the evidence of their consent to the doctrine contained in them. So Lord Stowell, in his judgment in The Maria, arguing for the universal right of the belligerent to visit neutral merchant ships, says: The right is equally clear in practice, for practice is uniform and universal upon the subject; the many European treaties which refer to this right refer to it as pre-existing, and merely regulate the exercise of it.'"* When, however, it is said that the consent of Nations may be gathered in some degree from the conventions of treaties, it is not meant that every kind of treaty can furnish even this degree of evidence. Many, says Sir Robert Phillimore further, are concerned with matters of no general interest to other than the contracting parties; many contain stipulations wrong from the necessities of one party, compelled to admit claims to which by the general law its adversary was not entitled. From treaties of this description no argument of the consent of Nations can be fairly deduced. But there are certain great and cardinal treaties in which, after long and bloody wars, a re-adjustment of international relations *The Maria. Rob. Adm. Rep. Chapt. I. p. 360. Sir ROBERT PHILLIMORE. Comm. on Int. Law. Vol. I. p. 46, et seq. BYNKERSQuest, Juris Publ. Liv. I. Chapt. X. p. 113. HOEK. |