« PreviousContinue »
receive on the ground that the interest which Russia claimed for the delayed payments had not been made. To recover this interest claimed by Russia and denied by Turkey a compromis was signed at Constantinople July 22/August 4, 1910, the third article of which stated the question to be arbitrated: 2
I. Whether or not the Imperial Ottoman Government is obliged to pay interestdamages to the Russian claimants by reason of the dates on which the said government made payment of the indemnities fixed, in execution of Article 5 of the treaty of January 27/February 8, 1879, as well as of the protocol of the same date?
II. In case the first question is decided in the affirmative, what would be the amount of these interest-damages?
The Turkish Government presented a preliminary question, upon which it asked the judgment of the court which, if decided in its favor, would have been a bar to the action; namely, that the claims were due to certain specified subjects of Russia, not to the Russian Government, and that therefore Russia as such had no standing in the court. The tribunal properly found against Turkey, as the treaty was made with Russia for the benefit of its subjects. The court next took up the question as to whether Turkey was responsible for interest upon delay in the payment of the sums due, and, after careful argument by counsel and an examination of the principles of law by the court, it was held that Turkey was responsible, as a private debtor, for the payment of interest, but that it was only responsible after a demand for the payment of the principal and interest upon such principal. The court found that Russia had made the demand in proper form on December 31, 1890/January 12, 1891, and that therefore Turkey was responsible to Russia for interest upon the sums overdue from that date. In reaching this conclusion the court examined not merely principles of law, statements of accredited publicists, but the decisions of arbitral courts which were in point and were properly regarded as precedents. The judgment, therefore, would have been in favor of Russia, had it not been for the fact that subsequent to this date, the Russian Government, through its Embassy at Constantinople, repeatedly agreed to accept the balance as stated by Turkey, in which no interest was included. The court considered this to be a renunciation of the claim for interest put forward on December 31, 1890/January 12, 1891, and therefore rejected the claim for interest. On this point the court said:
2 Compromis printed in SUPPLEMENT, p. 62.
When the Tribunal recognized that, according to the general principles and custom of public international law, there was a similarity of conditions between a state and an individual that are debtors for a clear and exigible conventional sum, it is equitable and juridical to apply also by analogy the principles of private law common to cases where the demand for payment is to be considered as eliminated and its benefits removed. In private law the effects of the demand for payment are removed when the creditor, after having made due demand for payment upon the debtor, grants one or several extensions for the fulfilment of the principal obligation, without reserving the rights acquired by the legal demand (Touiller-Duvergier, Droit français, vol. III, p. 159, No. 256), or again when "the creditor does not carry out the summons upon the debtor to pay," and "these principles apply to interest damages as well as to interest due because of the non-fulfilment of the obligation
or because of delay in its fulfilment." (Duranton, Droit français, X, p. 470; Aubry et Rau, Droit Civil, 1871, IV, p. 99; Berney, De la demeure, etc., Lausanne, 1886, p. 62; Windscheid, Lehrbuch des Pandektenrechts, 1879, p. 99; Demolombe X, p. 49; Larombière I, art. 1139, No. 22, etc.).
Between the Imperial Russian Government and the Sublime Porte, there was therefore a relinquishment of the interest on the part of Russia, since its embassy repeatedly accepted without discussion or reservation and mentioned again and again in its own diplomatic correspondence the amount of the balance of the indemnity as identical with the amount of the balance of the principal. In other words, the correspondence of the last few years establishes the fact that the two parties interpreted the acts of 1879 as implying that the payment of the balance of the principal was identical with the payment of the balance to which the claimants had a right, which implied the relinquishment of interest or moratory interest-damages.
The Imperial Russian Government cannot, after the principal has been paid in its entirety or placed at its disposal, validly bring up again in a one-sided manner an interpretation which has been accepted and practised in its name by its embassy.
The court therefore held that "a negative reply is made to Question No. 1 in Article 3 of the compromis," before quoted.
EFFECTS OF WAR UPON TREATIES AND INTERNATIONAL CONVENTIONS. A PROJECT ADOPTED BY THE INSTITUTE OF INTERNATIONAL LAW AT
ITS SESSION IN CHRISTIANIA, IN AUGUST, 1912
The rule of international law which determines the treaty obligations of belligerents at the outbreak of war if such a rule can be said to exist is by no means easy to formulate; indeed, the practice of most states in that regard has been so uncertain and wanting in uniformity as to leave no course open to the conscientious text writer save to attempt a grouping of the treaties themselves; the arrangement of those which stand or fall depending, to some extent, upon the instruments in force at the date of belligerency and, to some extent, also, upon the attitude of
the belligerent himself toward treaty stipulations in general. While it is impossible, at the present time, to state a rule of general international obligation in that regard, it is safe to say that the beginnings of such a rule can be gleaned from the practice of belligerents, not only before the outbreak of hostilities but during their continuance.
Of the undertakings which are conceded to survive the outbreak of war we may mention those entered into in contemplation of war and intended, to a greater or less extent, to regulate its operations. In this class belong the Declaration of Paris of 1856, the Saint Petersburg Declaration of 1868, the Geneva Conventions of 1864, 1868 and 1906 and the Hague Conventions of 1899 and 1907: in this category, also, falls the Declaration of London of 1907. It is only when the entire body of treaty relations between the belligerents is considered that doubt arises as to the particular undertakings which are, and those which are not, affected by the outbreak of hostilities.
But even here the beginnings of a rule are apparent. Agreements that contemplate the continued existence of normal peaceful relations between the parties, such as those, for example, which regulate commercial intercourse, tariff concessions, immigration and naturalization treaties, postal conventions, extradition agreements and the like, are obviously deprived of their obligatory force by the outbreak of war this because they contemplate acts of uninterrupted international intercourse which are absolutely terminated in the operation of the ancient rule that puts an end to all peaceful intercourse between belligerents in time of war.
But there are other classes of treaties which are not affected by the changed relations of the belligerent states. Such are boundary treaties, treaties of cession and the like, which represent completed acts, and are embodied in instruments which have some points in common with executed contracts. These are generally conceded to be unaffected by the fact of war. It is true that the boundaries of the hostile states may be changed as a result of the military operations, and that territory, including that formerly ceded, may be acquired by the successful belligerent, but such changes result from the fortune of war and are not due to the old boundary treaties, or acts of cession; the incidents of the transfer being embodied in the treaty of peace which terminates the operations of war and places the belligerent upon a new footing of peace and amity.
In the draft project which was adopted by the Institute of Interna
tional Law at its session in Christiania in August last we have a definite and comprehensive scheme, prepared by the highest technical authority, and now submitted to the Powers for adoption. It will be conceded, I am sure, that the subject-matter of the project is of the very first importance, well worthy of the expert consideration of the Institute of International Law. The inherent difficulties which stood in the way of such an undertaking were fully understood and appreciated by the membership of that body, and no efforts were spared in the preparation of a scheme that should commend itself to the states of the civilized world, and be regarded by them as worthy of consideration with a view to its adoption in conventional form.
The project of the Institute is embodied in eleven articles, which are grouped in two chapters. In Article I the general proposition is advanced that the existence of war does not impair the binding force of treaties previously concluded between the belligerents. In other words, all treaties continue to have obligatory force in time of war save those mentioned in subsequent clauses of the project. When the field of application of the project is considered, there would seem to be some ground for the belief that a rule stated in an opposite sense and declaring that all treaties are abrogated by war would be quite as true and, possibly, of easier and more general application. The Institute has chosen otherwise, however, and the examination of the excepting clauses will now be proceeded with.
In the remaining articles of the chapter an enumeration is attempted of the treaties which are terminated by the belligerency of the parties. Among those which are held to be so terminated are those creating "international associations," protectorates, including agreements in respect to the supervision of external or internal administration, treaties of alliance, guaranty and subsidy, to which are added treaties establishing "spheres of influence" and, finally, treaties of a "public nature generally," a term of very general application and calculated to include most international undertakings within its scope. It will also be noted that the project is silent as to the nature and character of the "associations" which are terminated by the outbreak of war between the signatory parties. In paragraph two of Article II abrogation takes place in respect to any treaty the operation of which has been the direct cause of the war, as evidence by an official act of either belligerent prior to the outbreak of the war.
1 Printed at the end of this comment.
Article III follows as a necessary consequence upon the adoption of the preceding article and contains the requirement that, in determining the question of belligerency, the entire body of the treaty shall be considered. If a particular instrument contains clauses capable of being arranged under any of the heads mentioned in Article II, abrogation will result. If the treaty contains such stipulations, and constitutes an indivisible whole, the entire instrument loses its obligatory force at the outbreak of hostilities. Article IV, which contains provisions governing the treaty relations of the belligerents during the continuance of the war, has an important requirement in respect to such observance and provides, as to the surviving clauses, that, in spite of the hostilities, their execution must "be observed as in the past." It will be observed that the execution of the surviving agreements seems to differ, in some respects, from those like the several Hague Conventions for example, which only come into operation at the beginning of hostilities, in that the former are to receive execution at the hands of the belligerents unless such execution is prevented by military necessity. The execution of treaties which come into operation in time of war is specially provided for in a clause which is embodied in Article V.
In Article IV the attempt is made to give effect to the articles which precede it as rules of interpretation in treaties of peace, where they may be resorted to with a view to supply omissions. A more important clause, however, is that in which the effort is made to dispose of treaty obligations which are outstanding at the outbreak of war. In the operation of this clause certain prior treaties are annulled and certain others are abrogated; it is provided, however, that this requirement has no retrospective operation as to "effects produced in the past."
In Chapter 2 some consideration is given to treaties between the belligerents and third parties, by the insertion of a general provision in Article VII that the requirements of the first six articles shall apply to treaty relations between the belligerents and third states, with certain reservations which constitute the subject-matter of Articles VIII to XI. The first of these reservations applies to a class of undertakings to which belligerents are parties and which have the same object as their obligations to third states: these are required to be executed in the interest of third parties: the illustration given is that of a collateral treaty of guarantee, which remains in force in spite of the fact that war has broken out between two of the guarantors. This would seem to be the case of Belgium and Switzerland.