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So far as a treaty affects individual rights, it takes effect when no contrary stipulation is made, upon the exchange of ratifications. A subsequent act on the part of the contracting parties may nevertheless be necessary to make it effective with respect to such rights.
As a compact between nations, a treaty dates, unless otherwise provided, from its signing, the exchange of ratifications having in this regard a retroactive effect.' Thus in the case of the cession of territory, the exercise of sovereignty by a ceding state ceases, except for strictly municipal purposes, with the signing. The national character of the acquiring state is not, however, imposed for commercial purposes until the exchange of ratifications. The union of possession and the right to the territory must concur “to give plenum dominium et utile.". Although Porto Rico was ceded to the United States by a treaty signed December 10, 1898, and the authority of Spain was “superseded
superseded” by the previous military occupation of the United States, Porto Rico and the United States were, as to commercial matters, foreign countries until the exchange of ratifications. As a fugitive has no vested right of asylum, the “principle that a treaty is not to be held to operate retroactively in respect to vested rights does not apply to conventions of extradition."
'Heffter, sec. 87; Bluntschli, sec. 421; Davis vs. The Police Jury of Concordia, 9 How., 289; Haver vs. Yaker, 9 Wall., 32; Treaties and Correntions, p. 1228.
* Davis r's. The Police Jury of Concordia, 9 How., 289. United States e's. Arredondo, 6 Pet., 749.
Twiss, Law of Nations (Rights and Duties in Time of Peace, and ed.), p. 430. * Mr. Justice Wayne, 9 How., 289. Mr. Justice Brown, Dooley rs. United States, 1&2 U. S., 223. • Moore, Ertradition, vol. I, p. 29.
As the legality of acts of hostility depends upon the belligerent right of the state, rather than of the individual, a treaty of peace, unless it otherwise provides, suspends hostilities from the date of its signature. Captures, as also recaptures, made thereafter even in ignorance of the signing of the peace, are accordingly to be restored, and damages committed are to be compensated as far as possible. It is, however, the practice to precede the treaty of peace by an armistice, or by preliminary articles, which serve as the basis for the definitive treaty. Thus the treaty of Zurich was preceded by the preliminaries signed at Villafranca July 11, 1859; of Prague, by articles signed July 26, 1866; of Frankfort, by articles signed at Versailles February 26, 1871; of San Stefano, by articles signed at Adrianople January 31, 1878; of Paris, (1898), by the protocol signed at Washington August 12, 1898.
In England the courts have held that the officer through whose order an act of hostility is committed after the conclusion of peace, but in ignorance of it, is civilly liable, although if he acts in good faith the government must save him harmless. Such acts do not, however, entail criminal liability. To forestall the inconveniences resulting from acts done in ignorance of the suspension of hostilities, a provision is usually inserted in the armistice or treaty postponing till a future day the operation of the peace in remote places. A capture made after the signing but in ignorance of it, and within the time thus specified, is good, unless provision is made for its restitution. In the treaty between Spain and the Low Countries signed at Münster, January 30, 1648, a period of a year
'Calvo, sec. 3155; Wheaton, sec. 547; Hall (4th ed.), pp. 581, 585. See, however, Halleck, vol. i, p. 317.
'Hall (4th ed.), p. 586; Wheaton, sec. 547.
was allowed for the receipt of the news of peace in the possessions of the East India Co., and a period of six months in those of the West India Co. Hostilities were, however, to cease in these places if advice of peace was received earlier.' With the modern facilities of communication, a much shorter period is required. In the armistice signed January 28, 1871, between France and Germany, provision was made for the cessation of military operations on the day of signing in Paris, and within three days in the departments. Provision was also inserted for the restitution of captures. In the treaty of peace between China and Japan, signed April 17, 1895, it was agreed that offensive military operations should cease upon the exchange of ratifications, which did not take place till May 8.3 The protocol between the United States and Spain of August 12, 1898, provided that hostilities should cease upon the signing of the protocol; and that notice to that effect should be given as soon as possible by each government to the commanders of its forces. Between the signing of the protocol and the receipt of the notice, occurred the capitulation, on August 14, of Manila to the American forces. Article III of the protocol provided that, pending the conclusion of a treaty of peace, the United States should occupy and hold Manila together with the bay and harbor. The Spanish government sought to maintain that the United States continued the occupation solely by virtue of this article, and that the capitulation of August 14 was “absolutely null by reason of its having been concluded after the belligerents had signed an agreement declaring the hos
"Art. VII. Collection of Treatys, vol. ii, p. 340.
Art. I. Brit. and For. State Papers, vol. lxii, p. 49. ; Art. X. Ibid., vol. Ixxxvii, p. 803.
tilities to be suspended.” The government of the United States was unable to concur in this view, and took the ground that, as it had been expressly provided in the protocol that notice should be given of the suspension of hostilities, the suspension was to be considered as having taken effect “at the date of the receipt of the notice," which had been immediately given." While this seems to be a natural construction of the article-otherwise the clause providing for the immediate notification is redundant—the Spanish government was not inclined to accept it; and in the first conference of the Peace Commission at Paris requested the immediate restoration of the status quo at the time of the signing of the protocol. To this request the American commissioners, who had been specifically instructed that the city and suburbs of Manila were held "by conquest as well as by virtue of the protocol,” refused to yield.”
Where the treaty fixes a future date for the cessation of hostilities in remote places, it is generally agreed that hostilities must cease upon the receipt of official notice, although the time allowed has not expired.3 Obviously the notification in order to be binding on the officer must be duly authenticated and attested to by his own government.
(a) International Tribunals Article XVI of the convention for the pacific settlement of international disputes, signed at The Hague,
* For, Rel. 1898, pp. 813, 814, 830.
*Sca. Dọc. 148, p. 6, S6th Cong. 2nd sess; Sen. Doc, 62, pp. I3, I5, 21, 55th Cong. 3rd sess.
•Wheaton, sec. 548; Halleck, vol. I, p. 319. • See Case of the Swineherd. Hall, p. 582.
July 29, 1899, and to which the principal powers of the world, with the exception of the Central and South American states, are signatory parties, reads: "In questions of a legal nature, and especially in the interpretation or application of international conventions, arbitration is recognized by the signatory powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle." In Article X of the original Russian project, arbitration was to be made obligatory in cases of disagreement in the interpretation or application of treaties and conventions concerning postal and telegraphic service, international railways, protection of submarine telegraphic cables, rules for preventing collisions on the high seas, protection of literary, artistic and industrial property, monetary affairs, weights and measures, sanitary affairs, veterinary precautions, measures against the phylloxera, inheritances, extradition, mutual judicial assistance, navigation of international rivers and interoceanic canals, and boundary conventions so far as they concerned purely technical and not political questions. Obligatory arbitration in any dispute that might arise out of treaties relative to monetary affairs and the navigation of international rivers and interoceanic canals, was, not without reason, objected to in the Comité d'Examen, by the American member (Mr. Holls), and on the motion of the German member (Dr. Zorn), who opposed the general principle of obligatory arbitration, the article was stricken out in the committee. In the plan of a tribunal of arbitration adopted in April, 1890, by the First International Conference of American States, but which
i Conférence internationale de la Paix, pt. 4, p. 202. ? Holls, Peace Conference at The Hague, p. 227.