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Wheaton omitted this paragraph from the last edition revised by himself (1848), and the statement, except in reference to treaties declaratory of international law, now receives no support. The proper rule seems to be that treaties need be observed only to the advantage of signatories, a condition expressly recognized in the Hague Conventions; 12 in a number of arbitration treaties concluded by the United States, which specifically exclude matters affecting third states from the scope of the arbitral agreement; 13 and in numerous other treaties, in terms requiring observance toward signatories alone.14 A state by signing a treaty does not obligate itself to observe its provisions toward third states, 15 although a treaty worded in universal terms, relaxing the severity of customary international law, is apt to furnish a strong diplomatic argument against a signatory state by a nonsignatory claimant.16 1801 (Hansard, 36: 232, abstracted in Wheaton, History of the Law of Nations, N. Y., 1845, p. 408 et seq.), is cited, in which Lord Grenville opposed ratification of the treaty of June 17, 1801 with Russia on the ground, among others, that the meliorations of international law therein provided would be required of Great Britain by nonsignatory states. Marten's Précis du droit des Gens, Paris, 1831, 1: 45, sec. 7, and Klüber, Droit des Gens, Paris, 1831, 1: 5, sec. 3 have been cited as of this opinion (Reddie, Inquiries in International Law, London, 1842, 157), but they appear to have been misunderstood (Ortolan, Diplomatie de la mer, Paris, 1856, 2: 442; Twiss, Law of Nations, Oxford, 1861, 1: 132), their actual view going little farther than that of Bynkershoek, that numerous treaties with a similar content furnish evidence of accepted international law. Twiss discusses the question at length, with the conclusion that a treaty relaxing a rule of international law may extend to other nations, “but this indirect result will depend not upon the force of the convention as a contract, for that only binds the parties to it, but on certain considerations of right (jus) dehors the treaty.”
12 Most law-making conventions have in terms limited their operation to signatories. The Declaration of Paris, for instance, says “The present declaration is and shall be obligatory only among the Powers who have or who shall have acceded to it."
13 As an example see treaty with Great Britain, 1908, Article 1, Malloy, Treaties,
14 In the treaty between the United States and Russia of 1854 the contracting parties recognized the principles of free ships, free goods, and the freedom of neutral goods in enemy ships as “permanent and immutable,” but only engaged “to apply these principles to the commerce and navigation of such Powers and states as shall consent to adopt them on their part as permanent and immutable.” Malloy,
15 Dana, note to Wheaton, p. 610; Twiss, op. cit., 1: 134 et seq. 16 This point was discussed by Lord Grenville in the debate in the House of
It is all the more true that third states cannot be expected to observe or to acquiesce in rules acting to their disadvantage, because of treaties to which they are not signatory."7 England was certainly under no legal obligation to observe the Armed Neutralities of 1780 and 1800, or the United States to observe the Declaration of Paris during her Civil War,18 except in so far as these treaties were merely declaratory of customary international law.
The courts have held that the principle of enemy ships enemy goods, which was contained in a large number of treaties of the eighteenth and early nineteenth centuries, could not be applied as to property of a nonsignatory neutral in an enemy vessel.19 By Article 19 of the treaty between Portugal and England of 1654 it was agreed that either state should restore the prizes of the other brought to its ports. Soon after the conclusion of this treaty, England being neutral, Sir Leoline Jenkins advised against the application of this provision with reference to a Portuguese vessel brought into an English port by a French privateer, on the ground that it deprived the belligerent captor, a nonsignatory, of a just right under customary international law. He said:
The law of nations as it is at this day observed, seems not to pass any obligation on your Majesty to impart your royal protection unto Lords on the treaty with Russia of June 17, 1801, which embodied some of the principles of the second Armed Neutrality, Hansard, 36:18, 200, 232; Sir R. Phillimore, Commentaries upon International Law, 3d ed., London, 1879–1889, 1:46.
17 Phillimore, op. cit., 1: 46; Twiss, op. cit., 1: 136 et seq. 18 Dana's Wheaton, pp. 456, 586, 608.
19 The Nereide, 9 Cranch 388. This rule was not followed in Bolcher o. Darrell, Fed. Cas. 1607 (1795), the facts of which were as follows: France, being at war with Spain, a French privateer brought a Spanish prize laden with slaves to an American port. Darrell, acting as the agent of an Englishman, Savage, who held a mortgage against the Spanish slave-trader, seized and sold the slaves, contending that the mortgagee being neutral, the slaves were neutral property and hence were exempt from capture by the French privateer, although in an enemy bottom. The court, however, held that the provision of the French treaty declaring for “enemy ships enemy goods” rendered the slaves enemy and ordered their return to Bolcher, the French privateer, saying, “It is certain that the law of nations would adjudge neutral property so circumstanced to be restored to its neutral owner, but the fourteenth article of the treaty with France alters that law by stipulating that the property of friends found on board the vessels of an enemy shall be forfeited." Here the sufferer was a neutral Englishman not party to the treaty.
one friend to the prejudice of another; this captor being jure belli, which is a very good title, in full and quiet possession of his prize will take it for an act of partiality to have it now wrested out of his hands and given to his enemies; whereas no man's condition is to be made worse than another's in a place that is reputed of a common security upon the public faith.20
The advice to apply international law rather than the treaty is delivered with caution, and concludes with the remark:
But I am taught that your Majesty's treaties with foreign nations are not to be any part of our speculations or debate in the court of admiralty, but to be interpreted by your Majesty's own judgment with the advice of your most honorable Privy Council.
It is interesting to compare this case with that of the Appam,21 two and a half centuries later. The facts were similar, but international law had changed. In the latter case, the United States as a neutral restored a British vessel brought in as a prize by a German crew. The court said:
The principles of international law recognized by this government, leaving the treaty aside, would not permit the ports of the United States to be thus used by belligerents. If such were permitted, it would constitute of the ports of a neutral country harbors of safety into which prizes captured by one of the belligerents might be safely brought and indefinitely kept. ... The violation of American neutrality is the basis of jurisdiction and the admiralty courts may order restitution for a violation of such neutrality.
Germany claimed the right to sequestrate her prize in the American port under Article 19 of the treaty between the United States and Prussia of 1799.22 This was held inapplicable, as it referred to prizes conducted by war vessels, not to unaccompanied prizes. It is questionable, however, whether if the treaty had been in point it would have been proper for the United States to apply it, for to do so would
20 William Wynne, The Life of Sir Leoline Jenkins, London, 1724, 2: 732. Lord Stowell supported this opinion in 1798. “Now I have no scruple in saying, this is an article incapable of being carried into literal execution, according to the modern understanding of the law of nations; for no neutral country can interfere to wrest from a belligerent prizes lawfully taken.” The Santa Cruz, 1 C. Rob. 49 (1798). See also, Phillimore, op. cit., 2: 143.
2 The Appam, March 17, 1916, this JOURNAL, 11: 448, 453.
have been to act in derogation of the international obligations of neutrals to the disadvantage of Germany's enemies not parties to the treaty of 1799.
Another example of the application of customary international law when conflicting with treaties affecting third parties is found in the American neutrality policy after 1793. France claimed privileges of outfitting privateers and disposing of prizes in American ports under the treaty of 1778. While the American courts at first allowed a restricted application of the treaty,23 later a strict policy of neutrality was maintained, and upon French retaliation for alleged nonfulfilment of the treaty by the United States, it was abrogated by an act of Congress.24
As a final illustration of this principle may be cited the recent decision of the Central American Court of Justice in the case of Salvador v. Nicaragua, holding that Article 2 of the Bryan-Chamorro Treaty of 1914 between Nicaragua and the United States, granting the United States a ninety-nine year lease of a naval station on Nicaraguan territory on the Gulf of Fonseca, could not be applied as in derogation of the international rights of Salvador and Honduras to "condominium" in the gulf.25
The theory of a general obligation flowing from treaties appears more reasonable in reference to great "law-making” 26 conventions of which large numbers of states are signatory, but it is believed that even here it cannot be applied as a legal principle. Such conventions may be divided into three classes: 27 (1) international settlements, (2) international law-making, and (3) international coöperation.
The first class consists of the great treaties of peace, such as those of Westphalia (1648), Utrecht (1713), Vienna (1815), Paris (1856), Berlin (1878), and treaties establishing boundaries, or status, such as the various neutralization treaties. Such treaties establish and define the entities which are to be subjects of international law for an indefi
23 The Amity, Fed. Cas. 9741.
24 Act of July 7, 1798, 1 Stat. 578. On the controversy between France and the United States, see Moore's Digest, 5: 591, et
seq. 25 Decision rendered March, 1917; printed in this JOURNAL, infra, p. 674. 26 This term is suggested by Oppenheim, International Law, 1:23, 518.
27 This classification and terminology are used by Pitt Cobbett, Cases and Opinions on International Law, London, 1909, 1: 10.
nite future period and might be spoken of collectively as the constitution of the family of nations. Are such treaties of general obligation? Could a nonsignatory state reopen a boundary dispute settled by such a treaty? Could a state other than Great Britain protest to the United States against tolls discriminations in the use of the Panama Canal on the basis of the Hay-Pauncefote Treaty of 1901? Could a neutralized state invoke the neutralization treaty as against aggression by a state not a party to that treaty, or would a third state have a legal ground of protest against a declaration of war upon a neutralized state? Visscher, in speaking of the Belgian neutralization treaty, says: 28 “In the case in point the violation of these treaties implies more than the rupture of a contract: it constitutes a disregard of an objective rule of international law."
There appear to be no formal decisions on such a question as this, but it is believed that while the provisions of treaties establishing a permanent condition of things may be of universal obligation, this results from the general acceptance and acquiescence in their terms by all states, not from the treaty itself. Thus, to invoke such a treaty against or in behalf of a nonsignatory state, a tacit acceptance of the conditions in question would have to be shown.
The second class of “law-making treaties” consists of such conventions as the Declaration of Paris, the Geneva and Hague Conventions, and the Declaration of London. They establish rules and principles of international law and are by analogy sometimes spoken of as codes and statutes of the world society. However, it is clear that the analogy cannot serve to attribute to such conventions a general obligation. They are usually limited in terms to the signatories, and although frequently cited in diplomatic correspondence where one or both parties are not signatories, this is done on the assumption that the article cited is merely declaratory of customary international law.29
28 C. Visscher, Belgium's Case, London, 1916, p. 17.
29 As an instance, see the correspondence between Germany and the United States in the case of the William P. Frye. (This JOURNAL, Special Supplements, 9: 180, 10: 345.) Both the Declaration of London and the Prussian-American Treaty of 1799 were frequently cited, but in a very different manner. The former, which was not ratified at all, merely as evidence of international law, and the latter as a binding obligation.