§ 288a. The Treaty of $ 288b. Arbitration Treatics. but has no authority to constrain either party to adopt its opinion. Nor is it obliged to guarantee the performance of the treaty concluded under its mediation, though, in point of fact, it frequently does so (2). It was stipulated at the Treaty of Paris (1856), that "If there should arise between the Sublime Porte and one or more of the other signing Powers, any misunderstanding which might endanger the maintenance of their relations, the Sublime Porte and each of such Powers, before having recourse to the use of force, shall afford the other contracting parties the opportunity of preventing such an extremity by means of their mediation" (a). At a Conference of the Powers who signed the Treaty of Paris, their Plenipotentiaries, in a protocol dated 14th April, 1856, expressed "in the name of their Governments, the wish that States between which any serious misunderstanding may arise, should, before appealing to arms, have recourse, as far as circumstances might allow, to the good offices of a friendly Power. The Plenipotentiaries hope that the Governments not represented at the Congress will unite in the sentiment which has inspired the wish recorded in the present protocol" (b). Nevertheless, it can hardly be said that wars have been less frequent since these declarations, even among the Powers actually making them. The protocol was invoked to prevent the Dano-German war of 1864, and the Austro-Prussian war of 1866, but without effect. The Conference which met at Constantinople in 1876 attempted to settle the dispute between Russia and Turkey in a peaceable manner, but it failed to bring about such a result. Lord Granville, in 1870, appealed to France and Prussia to have recourse to mediation, but in vain (c). Even after hostilities had commenced, Her Majesty's Government assured France that "if at any time recourse should be had to their good offices, they would be freely given and zealously exerted" (d). Yet though wars have been unfortunately frequent of late years several serious disputes have also been settled by the peaceful method of an appeal to arbitration (e). The most notable instance of this in recent times is the Treaty of Washington, 1871. By that convention, five different causes of disagreement between England and the United States, some of them of very long standing, were referred to different tribunals of arbitration, and a peaceful solution obtained. It is sincerely to be hoped that such an example may be followed in the future by other States. A treaty of arbitration, by which the contracting parties bind them (z) Klüber, Droit des Gens Moderne de l'Europe, pt. ii. tit. 2, § 1; ch. 2, § 160. (a) [Art. viii. See Hertslet, Map of Europe, vol. ii. p. 1255.] (b) [Ibid. p. 1279.] (c) [Annual Register, 1870. Pub. Docs. p. 204.] (d) [Annual Register, 1871. Pub. Docs. p. 248.] (e) [Calvo, Droit Int. vol. ii. p. 549. Several instances are there collected. See, also, Revue de Droit Int. 1874, p. 117, and 1875, p. 57.] selves to submit to arbitration all differences and disputes between them which they cannot settle by negotiation, has been concluded between the United States of Colombia and the Republic of Honduras; and a treaty of a like nature has recently been entered into between Switzerland, the United States, and other American Powers (f). By the 12th Article of the General Act of the Berlin Conference, 1885, the Signatory Powers declare that in case a serious disagreement originating on the subject of, or in the limits of the territories mentioned in Article 1 (the Congo Basin and circumjacent regions), and placed under the free trade system, shall arise between any of them, or the powers which may become parties to the Act, these Powers bind themselves, before appealing to arms, to have recourse to the mediation of one or more of the friendly Powers, and in a similar case reserve to themselves the option of having recourse to arbitration (g). A question was recently raised between England and the United Decision of States as to the effect to be given to an award in which only a majority majority. of the arbitrators concurred, when no provision had been made for this in the agreement of reference. The Treaty of Washington constituted four boards of arbitrators. As regards three of these boards, it was provided that the votes of a majority should be conclusive; but as regards the fourth, viz., the one to meet at Halifax and decide the fishery question, no such provision was made. When the award was made, Mr. Evarts, the American Foreign Secretary, raised an objection to its validity on the ground (among others) that only two out of the three arbitrators had concurred in it. Lord Salisbury declined to give any weight to this objection, and asserted it to be a principle of international law that, in arbitrations of a public nature, the majority of the arbitrators binds the minority, unless the contrary be expressed (h). § 288c. Another method of peaceably settling international disputes is by Conferences. summoning a conference or congress of various States, and discussing the claims of each party. This has frequently been done in Europe, the last instance being the celebrated Congress of Berlin (i). $289. history. The art of negotiation seems, from its very nature, Diplomatic hardly capable of being reduced to a systematic science. It depends essentially on personal character and qualities, united with a knowledge of the world and experience in business. These talents may be strengthened by the study of history, and especially the history of diplomatic negotiations; but the want of them can hardly be (f) [Lawrence, Modern I. L. p. 269.] (9) [Appendix J., cf. art. viii. of the Treaty of Paris, supra.] (h) [Lord Salisbury to Mr. Welsh, 7th Nov. 1878. See Supplement to London Gazette, 16th Nov. 1878. Hal- supplied by any knowledge derived merely from books. One of the earliest works of this kind is that commonly called Le Parfait Ambassadeur, originally published in Spanish by Don Antonio de Vera, long time ambassador of Spain at Venice, who died in 1658. It was subsequently published by the author in Latin, and different translations appeared in Italian and French. Wicquefort's book, published in 1679, under the title of L'Ambassadeur et ses Fonctions, although its principal object is to treat of the rights of legation, contains much valuable information upon the art of negotiation. Callières, one of the French plenipotentiaries at the Treaty of Ryswick, published, in 1716, a work entitled De La Manière de Négocier avec les Souverains, which obtained considerable reputation. The Abbé Mably also attempted to treat this subject systematically, in an essay entitled Principes des Négotiations, which is commonly prefixed as an introduction to his Droit Publique de l'Europe in the various editions of the works of that author. A catalogue of the different histories which have appeared of particular negotiations would be almost interminable, but nearly all that is valuable in them will be found collected in the excellent work of M. Flassan, entitled L'Histoire de la Diplomatie Française. The late Count de Ségur's compilation from the papers of Favier, one of the principal secret agents employed in the double diplomacy of Louis XV., entitled Politique de tous les Cabinets de l'Europe pendant les Règnes de Louis XV. et de Louis XVI., with the notes of the able and experienced editor, is a work which also throws great light upon the history of French diplomacy. A history of treaties from the earliest times to the Emperor Charlemagne, collected from the ancient Latin and Greek authors, and from other monuments of antiquity, was published by Barbeyrac in 1739 (k). It had been preceded by the immense collection of Dumont, embracing all the public treaties of Europe from the age of Charlemagne to the (k) Histoire des Anciens Traités, par Barbeyrac, forming the first volume of Dumont's Supplément au Corps Diplomatique. commencement of the eighteenth century (?). The best collection of the more modern European treaties are those published at different periods by Professor Martens, of Göttingen, including the most important public acts upon which the present conventional law of Europe is founded. To these may be added Koch's Histoire abrégée des Traités de Paix depuis la Paix de Westphalie, continued by Schöll. A complete collection of the proceedings of the Congress of Vienna has also been published in German by Klüber (m). $289a. works. The most complete collection of the treaties by which Great Britain Hertslet's is bound is published under the name of Hertslet's Commercial treaties. One of the most useful works to all students of international law and modern European history has recently been published by Mr. Hertslet, entitled "The Map of Europe by Treaty." All treaties and other important documents relating to the international affairs of Europe, from 1815 to 1875, are there collected and arranged in chronological order. The index to this work is one of the most remarkable and lucid ever compiled, and a reference to it will enable the student to trace the history of any international transaction, within the specified period, with the greatest ease. The collection of treaties and other public acts by Professor Holland, Holland's European entitled "The European Concert in the Eastern Question," forms, Concert. with the introductions and notes, an indispensable companion for any one desirous of arriving at an intelligent understanding of that difficult subject. The second volume of Dr. Wharton's Digest contains a valuable Wharton's index and comment to the treaties concluded at various times between Digest. the United States and other powers (n). (1) Corps Universel Diplomatique du Droit des Gens, &c., 8 tomes, fol. Amsterd. 1726-1731. Supplément au Corps Universel Diplomatique, 5 tomes, fol. 1739. (m) Acten des Wiener Congresses in den Jahren, 1814 und 1815; von J. L. Klüber, Erlangen, 1815 und 1816; 6 Bde. 8vo. (n) [Treaties relating to private rights, as The International Copyright Convention, and The International Convention for the Protection of Industrial Property, will be found printed at large, or referred to, in Nelson's Private International Law.] PART FOURTH. INTERNATIONAL RIGHTS OF STATES IN THEIR HOSTILE $290. Redress by forcible means between nations. CHAPTER I. COMMENCEMENT OF WAR, AND ITS IMMEDIATE EFFECTS. THE independent societies of men, called States, acknowledge no common arbiter or judge, except such as are constituted by special compact. The law by which they are governed, or profess to be governed, is deficient in those positive sanctions which are annexed to the municipal code of each distinct society. Every State has therefore a right to resort to force, as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each State is also entitled to judge for itself what are the nature and extent of the injuries which will justify such a means of redress. Among the various modes of terminating the differences between nations, by forcible means short of actual war, are the following 1. By laying an embargo or sequestration on the ships. and goods, or other property of the offending nation, found within the territory of the injured State. 2. By taking forcible possession of the thing in controversy, by securing to yourself by force, and refusing to the other nation, the enjoyment of the right drawn in question. |