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As conventional obligations they are only binding upon signatories, though by their general acceptance they are of high value in determining what the rule of customary international law is.30

The third class of general international conventions comprise such documents as the General Act for the Repression of the African Slave Trade, the Universal Postal Convention, the International Sanitary Convention, etc. They establish international administrative bureaus and regulations for their operation. They are in terms and by their nature effective only as between signatories.

Treaties may, as Bynkershoek insists, furnish evidence of customary international law by which nonsignatory states are bound, but the obligation flows from the customary law, not the treaty.31 Treaties as such are of effect only within the legal order composed of the signatories, and there would certainly be grounds of protest if a state attempted to apply a treaty to the disadvantage of a party whose state was not signatory. Customary international law supersedes treaty provisions where rights of nonsignatories are involved.32

30 The preamble to the Declaration of London states the purpose of the conference to have been "to determine together as to what are the generally recognized rules of international law within the meaning of Article 7 of the Convention of the 18th October, 1907, relative to the establishment of an International Prize Court."

31 Bynkershoek, Ques. Jur. Pub., lib. 1, c. 10, ed. 1752, 1: 77, cited Dana's Wheaton, sec. 15, p. 24; Phillimore, op. cit., 1: 48; Twiss, op. cit., 1: 135. See also the Maria, 1 C. Rob. 360; Martens, op. cit., 1: 45, sec. 7; Klüber, op. cit., 1: 5, sec. 3.

32 The most noteworthy failures to apply this rule have been in the case of treaties giving special privileges in time of war. The operation of such a treaty by a neutral is necessarily an infraction of the rights of third parties under customary international law, for it involves a violation of the neutral's duty of impartiality. Treaties of the seventeenth and eighteenth centuries frequently permitted the levy of troops in the territory of one of the signatories when neutral. These are now all obsolete as clearly in derogation of customary international law, but levies were permitted under them in the latter part of the eighteenth century, notably by neutral German states to Great Britain in the American Revolution. (See Hall, International Law, 4th ed., pp. 601 et seq.) The special privileges of bringing in prizes and repairing privateers in American ports granted to France by the treaty of 1778 have already been mentioned. In a few cases the United States courts held that the prizes taken by French vessels brought into American ports could not be restored on account of contraventions of customary international law if the acts were within the treaty privileges. See the Phoebe Ann, 3 Dall. 319, the Friendship, Fed. Cas. 3291, the Amity, Fed. Cas. 9741. See also Moore, 5: 591–598. These

CONFLICTS OF INTERNATIONAL LAW WITH TREATIES AFFECTING ONLY SIGNATORIES

Where only signatories are concerned, as a general principle the reverse will be true, and treaties will take precedence of customary international law. Courts have, however, sometimes applied customary international law in the case of such a conflict, on the ground that the treaty was intended to be declaratory of international law which had subsequently changed. Thus, although a number of its early treaties required the carriage of sea letters or passports by merchantmen of the signatories when neutral, on penalty of forfeiture as probable enemy vessels, the United States prize courts have not condemned such vessels if other evidence showed a genuine neutral character.33 The advantages of customary international law have been thus applied in spite of the treaty.

Treaties have generally been interpreted so as not to conflict with customary international law. Thus a British treaty with Sweden of 1666 forbade either signatory to "lend" ships to an enemy of the other. The British captors of a Swedish vessel, The Ringende Jacob, sought its condemnation, on the ground that by carrying on contraband trade it had been "lent" to the enemy and hence was confiscable under the treaty. Lord Stowell interpreted the provision as meaning a putting in entire control of the enemy and hence reconciled the treaty to the then existing rule of international law which released neutral vessels carrying a small amount of contraband. The court admitted that customary international law of the time when the treaty was made had required the condemnation of vessels engaged in contraband trade, but the owners were entitled to the benefit of the relaxed pracprivileges not only conflicted with customary international law, but with the Jay Treaty with Great Britain of 1794. A recent example of similar character is furnished by the permission of Portugal to let British troops pass across its territory in South Africa during the Boer War, in accord with Art. 11 of the treaty of June 11, 1891. (Martens, N. R. G. ii, 18: 185.) This was of obvious disadvantage to the enemy of Great Britain, a nonsignatory of the treaty. For this and other examples see L. Oppenheim, International Law, 2d ed., New York, 1912, 2: 371–372. 33 The Amiable Isabella, 6 Wheat. 1, in reference to Art. 17, of the treaty with Spain, 1795, Malloy, p. 1647. The Pizarro, 2 Wheat. 227; the Venus, 27 Ct. Cl. 116 (1892).

tice of modern international law.34 This decision is particularly strong because to the disadvantage of the government whose court rendered it, and indicates that treaties will generally be interpreted so as not to derogate from rights recognized under customary international law.

The Alaskan boundary arbitration of 1903 was a notable instance of the interpretation of a treaty in harmony with international law, especially with the principle of prescription. In fact, the Canadian Commissioners dissented from the opinion of the tribunal on the ground that international law and public policy rather than the treaties had guided the majority.

CONFLICTS BETWEEN TWO TREATIES

Where the provisions of two treaties are in conflict, the proper rule would seem to require that where the signatories are the same, the later rules,36 but where the signatories are different the earlier rules, for in that case one of the signatories of the first treaty, not having assented to its abrogation, the other signatory was not competent to abrogate it alone, by the conclusion of a conflicting treaty with a third state.37 Such a conflict arose between Article 17 of the treaty of the

4 The Ringende Jacob, 1 C. Rob. 89 (1798); Phillimore, op. cit., 1: 42.
35 British and Foreign State Papers, vol. 96; Pitt Cobbett, op. cit., 1: 96.

36 Cushing, Att. Gen., 6 Op. 291. There are numerous cases of treaties made specifically to supersede earlier treaties with the same party, as for example the Hay-Pauncefote Treaty concluded by the United States with Great Britain in 1901 to supersede the Clayton-Bulwer Treaty of 1850, in reference to the Panama Canal. The Hague Conventions undoubtedly have superseded numerous bilateral treaties, thus treaties requiring one signatory when neutral to furnish a limited aid to the other when belligerent by contingents of troops, passage of troops across territory, embargo of arms, or use of ports for replenishing cruisers (see Oppenheim, op. cit., 2: 372), undoubtedly conflict with the fifth and thirteenth Hague Conventions of 1907 which require neutrals to observe impartiality and to prevent the unneutral use of their territory by belligerents. Such a treaty as this, which is largely declaratory of customary international law, would undoubtedly take precedence of the earlier treaty, even though both parties of the latter were not signatories of the former. In so far, however, as the Hague Conventions are not merely declaratory of preexisting law, the rule that a special treaty supersedes a general one would apply.

37 Phillimore, op. cit., 1: 44; Vattel, Bk. 2, c. 12, sec. 165; c. 2, sec. 27; Dalloz, Rept. t. 42, 1st part (1861), s. v. Traité international, No. 152; Pradier-Fodèré,

United States with France of 1778 and Article 24 of the treaty with England of 1794. The former required the United States to admit French privateers and their prizes to American ports for purposes of repair and supplies, whereas the latter required her to forbid all belligerent privateers these privileges.38 In the case of the Amity, 39 a British vessel taken prize by the French and sold in the United States, the United States court admitted the validity of the earlier French treaty, and refused jurisdiction, but it later became evident that these privileges were incompatible with the obligations of neutrality imposed by customary international law, and the French treaty was abrogated by legislative act in 1798.40

A conflict appears to exist between the Hay-Varilla Treaty, concluded by the United States with Panama in 1903, and the Hay-Pauncefote Treaty previously concluded with Great Britain in 1901. Article 19 of the former exempts vessels of Panama from all tolls in using the Panama Canal, while Article 3 of the latter requires equality of tolls to the vessels of all nations using the canal. Section 5 of the Panama Canal Act of August 24, 1912, recognizes the exemption of Panama vessels. Great Britain protested against the exemption given to American vessels, also contained in this section, and in the same note made mention of the Panama exemption as being also contrary to the HayPauncefote Treaty, but did not insist upon it. This treaty conflict

Traité de droit international public, Paris, 1885-1906, Vol. 2, sec. 1013; W. Kaufmann, Die Rechtskraft des Internationalen Rechtes, Stuttgart, 1899, pp. 38, 85.

38 See treaty United States-France, 1778, Arts. 17, 19, 22; treaty United StatesGreat Britain, 1794 (Jay Treaty), Arts. 24, 25. It is not clear that the French treaty actually gave the wide privileges claimed for it by the French (see Moore, 5: 591– 598), nor that the British treaty was in conflict with it, if correctly interpreted. While the 24th Article of the latter categorically forbids the arming of privateers, their provisioning more than sufficient to reach the nearest home port, and the sale of prizes in neutral ports, the 25th Article, which prohibits the giving of “shelter and refuge" to privateers with prizes, makes express exception in case of obligations of prior treaties.

39 The Amity, Fed. Cas. 9741 (1796). See also the Phoebe Ann. 3 Dall. 319; the Friendship, Fed. Cas. 3291.

40 Act of July 7, 1798, 1 Stat. 578, Moore, 5: 356.

41 See note of Sir E. Grey, Nov. 14, 1912; reply of Mr. Knox, Secretary of State, Jan. 17, 1913 (Diplomatic History of the Panama Canal, pp. 91, 95). The whole question is discussed in L. Oppenheim, The Panama Canal Conflict, Cambridge, 1913,

does not seem to have come before the courts, and it is highly probable that, in view of the peculiar position of Panama in reference to the canal, the exemption of her vessels from tolls being one of the conditions upon which she permitted the canal to be constructed, this exemption will not be seriously questioned. The Act of June 15, 1914, repealing the exemption of American vessels from tolls, continues the Panama exemption.

The recent decision of the Central American Court of Justice in the case of Costa Rica v. Nicaragua 42 involves a conflict between two treaties. Costa Rica alleged that article 1 of the Bryan-Chamorro Treaty of 1914 between Nicaragua and the United States, whereby the United States obtained the exclusive right of constructing a canal across Nicaraguan territory, was in conflict with the Canas-Jerez Treaty of 1858 between Costa Rica and Nicaragua as interpreted in an arbitral award given by President Cleveland in 1888. Under this treaty, in view of the fact that the only practicable canal route in this region. would include the San Juan River, which formed part of the boundary between Costa Rica and Nicaragua, Costa Rica claimed the right to be consulted on any canal project affecting her interests and to give an opinion more than "advisory" in case her "natural rights" were affected. The decision in favor of Costa Rica upheld the earlier as against the later treaty.

The principles applicable to conflicts between international law and treaties may be summarized as follows:

(1) Treaties are of legal validity only as between signatories and are superseded by customary international law in determining the rights of nonsignatories, when no statutory rule exists.

p. 48. The exemption of Colombian vessels from tolls was provided by Article 17 of the unratified treaty of 1903, by Article 1 of the unratified tripartite treaties of 1909 between Colombia, Panama, and the United States, and by Article 2 of the proposed treaty of 1914. (Charles, Treaties, pp. 223, 234.) Great Britain ultimately consented to this exemption, in view of the "entirely special and exceptional position of Colombia toward the Canal." (Mr. Bryce to Mr. Bacon, Feb. 24, 1909, Diplomatic History of the Panama Canal, Senate Doc. No. 474, 63d Cong., 2d. sess., p. 81.)

42 Costa Rica v. Nicaragua, Sept. 30, 1916, this JOURNAL, 11: 181; answer of court to protest of Nicaragua, ibid., Supplement, 11: 3; editorial comment, ibid.,

11: 156.

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