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13. A complementary treaty signed at Madrid, October 30, 1861, between Spain and Morocco for the regulation of difficulties arising from the convention of August 24, 1859, and the treaty of peace of April 26, 1860, provided for fixing the boundaries of Melilla, and an act for the limitation of its territory was signed at Tangier, June 26, 1862. The provisions relative to this delimitation were executed in a very imperfect and incomplete manner. One feature of the delimitation was a sort of neutral zone, in which the marabout and cemetery of Sidi Uriak were allowed to remain. Toward the close of 1893 the Spanish authorities, supposedly under Article VII of the treaty of April 26, 1860, which provides that Spain may adopt “all the measures that it shall consider opportune for the safety of these territories, and cause the erection of all fortifications and defenses that it shall believe convenient without the Moroccan authorities ever being able to put obstacles in the way,” undertook to construct a fort on the territory belonging to Spain in the vicinity of the marabout of Sidi Uriak. The tribesmen alleged that the works profaned the cemetery. They addressed a claim to the governor of Melilla presidio and, not receiving prompt satisfaction, gathered the other tribes and furiously attacked the Spanish garrison, which was rather thoroughly wiped out. By the convention of March 5, 1894, signed at Marrakesh, the incident was ended by the closing of the cemetery and some exchange of money. An additional convention of February 24, 1895, signed at Madrid put the Sultan under engagements to carry out the preceding agreement.31
14. A case of violation in a dynastic sense is to be found in the convention between Great Britain and Portugal by which the crown of the latter is guaranteed to the lawful heir of the House of Braganza, the British Government promising never to recognize any other ruler. This treaty was signed at London, October 22, 1807, and was part of the Anglo-Portuguese alliance series, of which the others are: London, June 16, 1373; Windsor, May 9, 1386; London, January 29, 1642; Westminster, July 10, 1654; Whitehall, April 28, 1660, and June 23, 1661, and Lisbon, May 16, 1703.82 The provision in question was
31 Rouard de Card, Les Relations de l'Espagne et du Maroc, 155-165, 192–194, 201, 223, 226.
32 It is often asserted that the treaties of the Anglo-Portuguese alliance are
confirmed by the Treaty of Rio de Janeiro in 1810, after the Braganzas had become settled in Brazil, and by the Treaty of Vienna of January 22, 1815, between the two states which provides:
The treaty of alliance at Rio de Janeiro of the 10th February, 1810, being founded on temporary circumstances, which have happily ceased to exist, the said treaty is hereby declared to be of no effect; without prejudice, however, to the ancient treaties of alliance, friendship and guaranty which have so long and so happily subsisted between the two crowns, and which are hereby renewed by the high contracting parties, and acknowledged to be of full force and effect.
Thus the treaty provision of 1807 was revised, and when Manuel of the Braganzas was succeeded by the republic, which Great Britain recognized, the London Government found itself violating the treaty, but with the full sanction of the other sovereign, the rulers of republican Portugal. This instance of faulty wording is, of course, only an anachronism. The careful methods of modern diplomacy would instinctively dictate referring not to "the two crowns” but to the "two high contracting parties."
DENYS P. MYERS.
secret. Wheaton knew them and anybody may find them in British and Foreign State Papers, I, 412 ff.
CONFLICTS BETWEEN INTERNATIONAL LAW AND
In protesting against the decision of the Central American Court of Justice in the recent case of Costa Rica v. Nicaragua, the latter government says:
It does not, and cannot, admit the unrestricted power that the court arrogates to itself to take cognizance of all the differences that may arise between the Central American States, . . . because no nation on earth would submit to the arbitrament of strangers its security and preservation. ...1
In reply the court supported its decision, which had denied the capacity of Nicaragua to conclude the Bryan-Chamorro Treaty with the United States, and said:
It must be evident, then, that if this strange reasoning were to find support among the other governments signatory to the Treaties of Washington, then at once, and perhaps forever, would be effaced an institution that now stands as the worthiest conquest of civilization, one of which the Central American States have been justly boastful and for which they have well merited the applause and admiration of the whole world.
In his editorial comment on this case in the January number of this JOURNAL, Professor Brown remarked: “The most significant point of international law raised by this whole controversy is the right of a state in its sovereign capacity to negotiate as a free agent with another sovereign state concerning matters of vital interest to other neighboring states." He concludes: “We need to recognize, in place of the archaic theory of sovereignty, the great principle, the fundamental reality of the mutual dependence, the common interests of the world.”
It was this need which the Central American Court recognized in upholding its jurisdiction, and which it regarded as its very raison d'être.
1 This JOURNAL, Supplement, 11: 5.
· This JOURNAL, 11: 158, 159.
In a previous article in this JOURNAL* the conclusion was reached, that when the state expresses its will definitely, as through a statute, courts will recognize such a source of law as superior to international law and apply the statute in case of a conflict. Statutes, however, ordinarily apply only within the territory of the state. They are pronouncements of the internal sovereignty of the state. Thus, within its boundaries, judicial practice recognizes that the state enjoys l'autonomie de la volonté. Is there a similar judicial recognition of the external sovereignty of the state? The very idea of international law seems to imply that the external activity of the state is limited by law," but ordinary courts of justice, because of their limited jurisdiction, cannot often consider cases involving such activity. There is, however, one type of case in which they may do so, that in which a conflict arises between the immediate will of the state as expressed in a treaty and international law.
How far has general practice recognized that the capacity of a state
* Conflicts of International Law with National Laws and Ordinances, this JOURNAL, 11:1.
5 “All legislation is prima facie territorial.' Words having universal scope such as 'every contract in restraint of trade'. . . will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator may subsequently be able to catch.” Justice Holmes, in American Banana Co. o. United Fruit Co., 213 U. S. 347 (1909).
6 Even here the expression of the state's will must be unequivocal. Thus less definite sources of municipal law, such as executive orders, judicial precedents, etc., will not always stand in the way of the application of international law, even in case of a clear conflict, and municipal law will always be interpreted in harmony with international law if possible. See this JOURNAL, 11: 1.
? The theory of sovereignty can be saved even here by assuming that the law is formed by agreement, in which case the will of each is not limited because it forms a voluntary component of the volonté générale. We speak, however, of sovereignty in the legal sense which gives meaning to the phrase, “The king can do no wrong." It is very clear that the will of the “sovereign” as expressed today by king, or president, or legislature, may not be in accord with the volonté générale embodied in international law, even though the “sovereign" may have "agreed” to that law in the past.
8 Judicial recourse to the doctrine of “political questions," "acts of state," and “actes du gouvernment,” usually means that on matters relating to external sovereignty the courts have no jurisdiction and so will regard the acts of political agencies of the government as facts to be accepted, not as legal questions to be judged.
to conclude treaties is limited by customary international law and treaties which it has previously concluded with third states? The question can be answered by considering the relative legal weight given to treaties and international law. If a treaty provision in conflict with a rule of international law or an earlier treaty is held to be inoperative by a national or international court, an actual limitation has been imposed upon the power of the state to contract. Sovereignty has been compelled to bow before the law.
Conflicts of international law (1) with treaties affecting nonsignatories, (2) with treaties affecting only signatories 9 and (3) conflicts between two treaties, will be considered successively.
CONFLICTS OF INTERNATIONAL LAW WITH TREATIES AFFECTING
Some writers have maintained that treaties in certain cases, as, for instance, when meliorating the harshness of earlier practice, 10 form a true source of international law and are obligatory even toward nonsignatories. Wheaton said in his first edition:
The effect of treaties and conventions between nations is not necessarily restricted, as Rutherforth has supposed, to those states who are direct parties to these compacts. They can not indeed modify the original and pre-existing international law to the disadvantage of those states who are not direct parties to the particular treaty in question. But if such a treaty relaxes the rigor of the primitive law of nations in their favor, or is merely declaratory of the pre-existing law, or furnishes a more definite rule in cases where the practice of different states has given rise to conflicting pretensions, the conventional law thus introduced is not only obligatory as between the contracting parties, but constitutes a rule, to be observed by them towards all the rest of the world."
" By signatories is meant states which have signed and ratified the treaty and exchanged ratifications. A state which has signed but not ratified a treaty is legally in the same situation as a state which has had nothing to do with the instrument.
10 Examples are furnished by Article 12 of the treaty between the United States and Italy of 1871 abolishing the right of capturing enemy property at sea, and prior to 1856 by the numerous treaties providing for free ships, free goods. Many provisions of the Hague Conventions, as, for instance, No. XI, 1907, Article 5, exempting the crew of captured enemy merchant ships from detention as prisoners of war, are also meliorations of customary international law.
11 Henry Wheaton, The Elements of International Law, 1st ed., Philadelphia, 1836, p. 50. As authority, Lord Grenville's speech in the House of Lords, Nov. 13,