CHAPTER IV MISCELLANEOUS AGENCIES
I ARMED FORCES ON FOREIGN TERRITORY
Hall, §§ 54, 56, 102—Lawrence, § 107—Halleck, I. pp. 477-479—Phillimore, I. § 341—Taylor, § 131—Twiss, I. § 165—Wheaton, § 99—Moore, II. § 251—Westlake, I. p. 255—Stoerk in Holtzendorff, II. pp. 664-666—Rivier, I. pp. 333-335—Calvo, III. § 1560—Fiore, I. Nos. 528-529.
Armed Forces State Organs.
§ 443. Armed forces are organs of the State which maintains them, because such forces are created for the purpose of maintaining the independence, authority, and safety of the State. And in this respect it matters not whether armed forces are at home or abroad, for they are organs of their home State even when on foreign territory, provided only they are there in the service of their State and not for their own purposes. For if a body of armed soldiers enters foreign territory without orders from, or without being otherwise in the service of, its State, but on its own account, be it for pleasure or for the purpose of committing acts of violence, it is no longer an organ of its State.
Occasions for Armed Forces abroad.
§ 444. Besides war, there are several occasions for armed forces to be on foreign territory in the service of their home State. Thus, a State may have a right to keep troops in a foreign fortress or to send troops through foreign territory. Thus, further, a State which has been victorious in war with another may, after the conclusion of peace, occupy a part of the territory of its former opponent as a guarantee for the execution of the Treaty of Peace. After the Franco-German war, for example, the Germans in 1871 occupied a part of the territory of France until the final instalments of the indemnity for the war costs of five milliards of francs were paid. It may also be a case of necessity for the armed forces of a State to enter foreign territory and commit acts of violence there, such as the British did in the case of the Caroline.[785]
[785] See above, § [133], and below, § [446].
Position of Armed Forces abroad.
§ 445. Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial and remain, therefore, under the jurisdiction of the latter. A crime committed on foreign territory by a member of the force cannot be punished by the local civil or military authorities, but only by the commanding officer of the forces or by other authorities of its home State.[786] This is, however, valid only in case the crime is committed either within the place where the force is stationed, or anywhere else where the criminal was on duty. If, for example, soldiers belonging to a foreign garrison of a fortress leave the rayon of the latter, not on duty but for recreation and pleasure, and then and there commit a crime, the local authorities are competent to punish them.
[786] This is nowadays the opinion of the vast majority of writers on International Law. There are, however, still a few dissenting authorities, such as Bar ("Lehrbuch des internationalen Privat- und Strafrecht" (1892), p. 351), and Rivier (I. p. 333).
Case of McLeod.
§ 446. An excellent example of the position of armed forces abroad is furnished by the case of McLeod,[787] which occurred in 1841. Alexander McLeod, who was a member of the British force sent by the Canadian Government in 1837 into the territory of the United States for the purpose of capturing the Caroline, a boat equipped for crossing into Canadian territory and taking help to the Canadian insurgents, came in 1841 on business to the State of New York, and was arrested and indicted for the killing of one Amos Durfee, a citizen of the United States, on the occasion of the capture of the Caroline. The English Ambassador at Washington demanded the release of McLeod, on the ground that he was at the time of the alleged crime a member of a British armed force sent into the territory of the United States by the Canadian Government acting in a case of necessity. McLeod was not released, but had to take his trial; he was, however, acquitted on proof of an alibi. It is of importance to quote a passage in the reply of Mr. Webster, the Secretary of Foreign Affairs of the United States, to a note of the British Ambassador concerning this affair. The passage runs thus:—"The Government of the United States entertains no doubt that, after the avowal of the transaction as a public transaction, authorised and undertaken by the British authorities, individuals concerned in it ought not ... to be holden personally responsible in the ordinary tribunals for their participation in it."
[787] See Wharton, I. § 21, and Moore, II. § 179.
The Casa Blanca Incident.
§ 446a. Another interesting example is the Casa Blanca incident. On September 25, 1908, six soldiers—three of them Germans—belonging to the French Foreign Legion which formed part of the French troops at Morocco, deserted at Casa Blanca and asked for and obtained the protection of the local German consul, who intended to take them on board a German vessel lying in the harbour of Casa Blanca. On their way to the ship, however, they were forcibly taken by the French out of the custody of the secretary of the German Consulate and a native soldier in the service of the consulate who were conducting them. Considering all Germans in Morocco without exception exterritorial and under the exclusive jurisdiction of her consul, Germany complained of this act of force and demanded that those of the deserters concerned who were German subjects should be given up to her by France, acknowledging the fact that the consul had no right to extend his protection to other than German subjects. France refused to concede this demand, maintaining that the individuals concerned had even after their desertion remained under the exclusive jurisdiction of their corps, which formed part of a French force occupying foreign territory. As the parties could not settle the conflict diplomatically, they agreed, on November 24, 1908, to bring it before the Hague Court of Arbitration, which gave its award[788] on May 22, 1909, on the whole in favour of France. The Court considered: that there was a conflict of jurisdiction with regard to the German deserters because they were as German subjects under the exclusive jurisdiction of the German Consulate, but as deserters from the French Foreign Legion under the exclusive jurisdiction of the French Army of Occupation; that under the circumstances of the case the jurisdiction of the Army of Occupation should have the preference; that nevertheless the German consul was not to be blamed for his action on account of the fact that in a country granting exterritorial jurisdiction to foreigners the question of the respective competency of the consular jurisdiction and of the jurisdiction of an Army of Occupation was very complicated and had never been settled in an express, distinct, and universally recognised manner; that, since the German deserters were found at the port under the actual protection of the German Consulate and this protection was not manifestly illegal, the actual situation should, as far as possible, have been respected by the French military authority; that therefore the French military authorities ought to have confined themselves to preventing the embarkation and escape of the deserters, and, before proceeding to their arrest and imprisonment, to have offered to leave them in sequestration of the German Consulate until the question of the competent jurisdiction had been decided. The Court did not, however, decree the restitution on the part of France of the three German deserters to Germany.[789]
[788] See Martens, N.R.G. 3rd Ser. II. (1910), p. 19. An English translation of the Award is printed in A.J. III. (1909), p. 755.
[789] The ambiguity of the award has justly been severely criticised. If, as the Court correctly asserts, the jurisdiction of an Army of Occupation must prevail over the jurisdiction of a consul over his nationals in a country granting exterritorial jurisdiction, a decision of the conflict on mere legal grounds would have to be entirely in favour of France, for it is difficult to see how a wrongfully acquired and illegally asserted protection can create any obligation on the part of those who are exclusively competent to exercise jurisdiction. But it is a well-known fact that Courts of Arbitration frequently endeavour to give an award which satisfies both parties and the ambiguity of the award in the Casa Blanca incident is manifestly due to this fact. The award is not of such a kind as one would expect from a Court of Justice, although it may be an excellent specimen of an arbitral decision. See A.J. III. (1909), pp. 698-701.
II MEN-OF-WAR IN FOREIGN WATERS
Hall, §§ 54-55—Halleck, I. pp. 215-230—Lawrence, §§ 107-109—Phillimore, II. §§ 344-350—Westlake, pp. 256-259—Taylor, § 261—Moore, II. §§ 252-256—Twiss, I. § 165—Wheaton, § 100—Bluntschli, § 321—Stoerk in Holtzendorff, II. pp. 434 and 446—Perels, §§ 11, 14, 15—Heilborn, "System," pp. 248-279—Rivier, I. pp. 333-335—Bonfils, Nos. 614-623—Mérignhac, II. pp. 554-564—Calvo, III. §§ 1550-1559—Fiore, I. Nos. 547-550—Testa, p. 86—Jordan, R.I. 2nd Ser. X. (1908), p. 343.
Men-of-war State Organs.
§ 447. Men-of-war are State organs just as armed forces are, a man-of-war being in fact a part of the armed forces of a State. And respecting their character as State organs, it matters nought whether men-of-war are at home or in foreign territorial waters or on the High Seas. But it must be emphasised that men-of-war are State organs only as long as they are manned and under the command of a responsible officer, and, further, as long as they are in the service of a State. A shipwrecked man-of-war abandoned by her crew is no longer a State organ, nor does a man-of-war in revolt against her State and sailing for her own purposes retain her character as an organ of a State. On the other hand, public vessels in the service of the police and the Custom House of a State; further, private vessels chartered by a State for the transport of troops and war materials; and, lastly, vessels carrying a head of a State and his suite exclusively, are also considered State organs, and are, consequently, in every point treated as though they were men-of-war.
Proof of Character as Men-of-war.
§ 448. The character of a man-of-war or of any other vessel treated as a man-of-war is, in the first instance, proved by their outward appearance, such vessels flying the war flag and the pennant of their State.[790] If, nevertheless, the character of the vessel seems doubtful, her commission, duly signed by the authorities of the State which she appears to represent, supplies a complete proof of her character as a man-of-war. And it is by no means necessary to prove that the vessel is really the property of the State, the commission being sufficient evidence of her character. Vessels chartered by a State for the transport of troops or for the purpose of carrying its head are indeed not the property of such State, although they bear, by virtue of their commission, the same character as men-of-war.[791]
[790] Attention ought to be drawn here to Convention VII. (concerning the conversion of merchant-ships into war-ships) of the second Hague Peace Conference of 1907. Although this convention concerns the time of war only, it is indirectly of importance for the time of peace. Its stipulations are the following:—No merchant-ship converted into a war-ship can have the rights and duties appertaining to that status unless it is placed under the direct authority, immediate control, and responsibility of the Power whose flag it flies (art. 1). Merchant-ships converted into war-ships must bear the external marks which distinguish the war-ships of their nationality (art. 2). The commander must be in the service of the State and duly commissioned by the proper authorities. His name must figure on the list of the officers of the military fleet (art. 3). The crew must be subject to the rules of military discipline (art. 4). Every merchant-ship converted into a war-ship is bound to observe, in its operations, the laws and customs of war (art. 5). A belligerent who converts a merchant-ship into a war-ship must, as soon as possible, announce such conversion in the list of the ships of its military fleet (art. 6).
[791] Privateers used to enjoy the same character and exemptions as men-of-war.
Occasions for Men-of-war abroad.
§ 449. Whereas armed forces in time of peace have no occasion to be abroad, cases of a special right from a convention and cases of necessity excepted, men-of-war of all maritime States possessing a navy are constantly crossing the High Seas in all parts of the world for all kinds of purposes. Occasions for men-of-war to sail through foreign territorial waters and to enter foreign ports necessarily arise therefrom. And a special convention between the flag-State and the littoral State is not necessary to enable a man-of-war to enter and sail through foreign territorial waters and to enter a foreign port. All territorial waters and ports of the civilised States are, as a rule, quite as much open to men-of-war as to merchantmen of all nations, provided they are not excluded by special international stipulations or special Municipal Laws of the littoral States. On the other hand, it must be emphasised that, provided special international stipulations or special treaties between the flag-State and the littoral State do not prescribe the contrary in regard to one port or another and in regard to certain territorial waters, a State is in strict law always competent to exclude men-of-war from all or certain of its ports, and from those territorial waters which do not serve as highways for international traffic.[792] And a State is, further, always competent to impose what conditions it thinks necessary upon men-of-war which it allows to enter its ports, provided these conditions do not deny to men-of-war their universally recognised privileges.
[792] The matter is controversial. See above, § [188], and Westlake, I. p. 192, in contradistinction to Hall, § 42.
Position of Men-of-war in foreign waters.
§ 450. The position of men-of-war in foreign waters is characterised by the fact that they are called "floating" portions of the flag-State. For at the present time a customary rule of International Law is universally recognised that the owner State of the waters into which foreign men-of-war enter must treat them in every point as though they were floating portions of their flag-State.[793] Consequently, a man-of-war, with all persons and goods on board, remains under the jurisdiction of her flag-State even during her stay in foreign waters. No official of the littoral State is allowed to board the vessel without special permission of the commander. Crimes committed on board by persons in the service of the vessel are under the exclusive jurisdiction of the commander and the other home authorities. Individuals who are subjects of the littoral State and are only temporarily on board may, although they need not, be taken to the home country of the vessel, to be there punished if they commit a crime on board. Even individuals who do not belong to the crew, and who after having committed a crime on the territory of the littoral State have taken refuge on board, cannot be forcibly taken off the vessel; if the commander refuses their surrender, it can be obtained only by means of diplomacy from the home State.
[793] This rule became universally recognised during the nineteenth century only. On the change of doctrines formerly held in this country and the United States of America, see Hall, § 54, and Lawrence, § 107. English and American Courts now recognise the exterritoriality of foreign public vessels. Thus, in the case of the Exchange (7 Cranch, 116), the Supreme Court of the United States recognised the fact that the latter had no jurisdiction over this French man-of-war. In the case of the Constitution, an American man-of-war, the High Court of Admiralty in 1879 held that foreign public ships cannot be sued in English Courts for salvage (L.R. 4 P.D. 39). And in the case of the Parlement Belge (L.R. 5 P.D. 197) the Court of Appeal, affirmed by the House of Lords in 1878, held that foreign public vessels cannot be sued in English Courts for damages for collision. Again the same was held in 1906 in the case of the Jassy, a Roumanian ship, 10 Aspinall, Mar. Cas. p. 278. See also the Charkieh (1873), L.R. 4 Adm. and Eccl. 59.
On the other hand, men-of-war cannot do what they like in foreign waters. They are expected voluntarily to comply with the laws of the littoral States with regard to order in the ports, the places for casting anchor, sanitation and quarantine, customs, and the like. A man-of-war which refuses to do so can be expelled, and, if on such or other occasions she commits acts of violence against the officials of the littoral State or against other vessels, steps may be taken against her to prevent further acts of violence. But it must be emphasised that even by committing acts of violence a man-of-war does not fall under the jurisdiction of the littoral State. Only such measures are allowed against her as are necessary to prevent her from further acts of violence.[794]
[794] Attention ought to be drawn to the "Règlement sur le régime légal des navires et de leurs équipages dans les ports étrangers," adopted by the Institute of International Law, in 1898, at its meeting at the Hague of which articles 8-24 deal with men-of-war in foreign waters; see Annuaire, XVII. (1898), pp. 275-280.
Position of Crew when on Land abroad.
§ 451. Of some importance is the unsettled question respecting the position of the commander and the crew of a man-of-war in foreign ports when they are on land.
The majority of publicists distinguish between a stay on land in the service of the man-of-war and a stay for other purposes.[795] The commander and members of the crew on land officially in the service of their vessel, to buy provisions or to make other arrangements respecting the vessel, remain under the exclusive jurisdiction of their home State, even for crimes they commit on the spot. Although they may, if the case makes it necessary, be arrested to prevent further violence, they must at once be surrendered to the vessel. On the other hand, if they are on land not officially, but for purposes of pleasure and recreation, they are under the territorial supremacy of the littoral State like any other foreigners, and they may be punished for crimes committed ashore.
[795] So also Moore, II. § 256.
There are, however, a number of publicists[796] who do not make this distinction, and who maintain that commanders or members of the crew whilst ashore are in every case under the local jurisdiction.
[796] See, for instance, Hall, § 55; Phillimore, I. § 346; Testa, p. 109. See also art. 18 of the "Règlement sur les régime légal des navires et de leurs équipages dans les ports étrangers," adopted by the Institute of International Law, in 1898, at its meeting at the Hague (Annuaire, XVII. (1898), p. 278).
III AGENTS WITHOUT DIPLOMATIC OR CONSULAR CHARACTER
Hall, §§ 103-104*—Moore, IV. § 623—Bluntschli, §§ 241-243—Ullmann, §§ 66-67—Heffter, § 222—Rivier, I. § 44—Calvo, III. §§ 1337-1339—Fiore, II. Nos. 1188-1191—Martens, II. § 5—Adler, "Die Spionage" (1906), pp. 63-92.
Agents lacking diplomatic or consular character.
§ 452. Besides diplomatic envoys and consuls, States may and do send various kinds of agents abroad—namely, public political agents, secret political agents, spies, commissaries, bearers of despatches. Their position is not the same, but varies according to the class they belong to, and they must therefore be severally treated.
Public Political Agents.
§ 453. Public political agents are agents sent by one Power to another for political negotiations of different kinds. They may be sent for a permanency or for a limited time only. As they are not invested with diplomatic character, they do not receive a Letter of Credence, but a letter of recommendation or commission only. They may be sent by one full-Sovereign State to another, but also by and to insurgents recognised as a belligerent Power, and by and to States under suzerainty. Public (or secret) political agents without diplomatic character are, in fact, the only means for personal political negotiations with such insurgents and States under suzerainty.
As regards the position and privileges of such agents, it is obvious that they enjoy neither the position nor the privileges of diplomatic envoys.[797] But, on the other hand, they have a public character, being admitted as public political agents of a foreign State. They must, therefore, certainly be granted a special protection, but no distinct rules concerning special privileges to be granted to such agents seem to have grown up in practice. Inviolability of their persons and official papers ought to be granted to them.[798]
[797] Heffter, § 222, is, as far as I know, the only publicist who maintains that agents not invested with diplomatic character must nevertheless be granted the privileges of diplomatic envoys.
[798] Ullmann, § 66, and Rivier, I. § 40, maintain that they must be granted the privilege of inviolability to the same extent as diplomatic envoys.
Secret Political Agents.
§ 454. Secret political agents may be sent for the same purposes as public political agents. But two kinds of secret political agents must be distinguished. An agent may be secretly sent to another Power with a letter of recommendation and admitted by that Power. Such agent is a secret one in so far as third Powers do not know, or are not supposed to know, of his existence. As he is, although secretly, admitted by the receiving State, his position is essentially the same as that of a public political agent. On the other hand, an agent may be secretly sent abroad for political purposes without a letter of recommendation, and therefore without being formally admitted by the Government of the State in which he is fulfilling his task. Such agent has no recognised position whatever according to International Law. He is not an agent of a State for its relations with other States, and he is therefore in the same position as any other foreign individual living within the boundaries of a State. He may be expelled at any moment if he becomes troublesome, and he may be criminally punished if he commits a political or ordinary crime. Such secret agents are often abroad for the purpose of watching the movements of political refugees or partisans, or of Socialists, Anarchists, Nihilists, and the like. As long as such agents do not turn into so-called agents provocateurs, the local authorities will not interfere.
Spies.
§ 455. Spies are secret agents of a State sent abroad[799] for the purpose of obtaining clandestinely information in regard to military or political secrets. Although all States constantly or occasionally send spies abroad, and although it is neither morally nor politically and legally considered wrong to send spies, such agents have, of course, no recognised position whatever according to International Law, since they are not agents of States for their international relations. Every State punishes them severely when they are caught committing an act which is a crime by the law of the land, or expels them if they cannot be punished. And a spy cannot legally excuse himself by pleading that he only executed the orders of his Government. The latter, on the other hand, will never interfere, since it cannot officially confess to having commissioned a spy.
[799] Concerning spies in time of war, see below, [vol. II. §§ 159] and [210], and Adler, "Die Spionage" (1906), pp. 7-62.
Commissaries.
§ 456. Commissaries are agents sent with a letter of recommendation or commission by one State to another for negotiations, not of a political but of a technical or administrative character only. Such commissaries are, for instance, sent and received for the purpose of arrangements between the two States as regards railways, post, telegraphs, navigation, delineation of boundary lines, and so on. A distinct practice of guaranteeing certain privileges to such commissaries has not grown up, but inviolability of their persons and official papers ought to be granted to them, as they are officially sent and received for official purposes. Thus Germany, in 1887, in the case of the French officer of police Schnaebélé, who was invited by local German functionaries to cross the German frontier for official purposes and then arrested, recognised the rule that a safe-conduct is tacitly granted to foreign officials when they enter officially the territory of a State with the consent of the local authorities, although Schnaebélé was not a commissary sent by his Government to the German Government.
Bearers of Despatches.
§ 457. Individuals commissioned to carry official despatches from a State to its head or to diplomatic envoys abroad are agents of such State. Despatch-bearers who belong to the retinue of diplomatic envoys as their couriers must enjoy, as stated above (§ 405), exemption from civil and criminal jurisdiction and a special protection in the State to which the envoy is accredited, and a right of innocent passage through third States. But bearers of official despatches who are not in the retinue of the diplomatic envoys employing them must nevertheless be granted inviolability for their person and official papers, provided they possess special passports stating their official character as despatch-bearers. And the same is valid respecting bearers of despatches between the head of a State who is temporarily abroad and his Government at home.
IV INTERNATIONAL COMMISSIONS
Rivier, I. pp. 564-566—Ullmann, § 68—Gareis, §§ 51-52—Liszt, § 16—Moore, IV. § 623.
Permanent in Contradistinction to Temporary Commissions.
§ 458. A distinction must be made between temporary and permanent international commissions. The former consist of commissaries delegated by two or more States to arrange all kinds of non-political matters, such as railways, post, telegraphs, navigation, boundary lines, and the like. Such temporary commissions dissolve as soon as their purpose is realised.[800] Besides temporary commissions, there are, however, permanent commissions in existence. They have been instituted by the Powers[801] in the interest of free navigation on two international rivers and the Suez Canal; further, in the interest of international sanitation; thirdly, in the interest of the foreign creditors of several States unable to pay the interest on their stocks; and, lastly, concerning bounties on sugar.
[800] The position of their members has been discussed above, § 456. Quite novel institutions are the International Commissions of Inquiry recommended by the Hague Peace Conferences of 1890 and 1907. Articles 9 to 36 of the Hague Convention for the peaceful adjustment of international differences provide that, in international differences involving neither honour nor vital interests, and arising from a difference of opinion on matters of fact, the parties should institute an International Commission of Inquiry; this commission to present a report to the parties, which shall be limited to a statement of the facts. See below, [vol. II. § 5].
[801] Only such permanent commissions are mentioned in the text as have been instituted by the Powers in conference. There are, however, many permanent commissions in existence which have been instituted by neighbouring Powers for local purposes, as for example:—(1) The American-Canadian International Fisheries Commission, instituted according to article 1 of the Treaty of Washington of April 11, 1908; see Treaty Series, 1908, No. 17. (2) The American-Canadian International Joint Commission concerning boundary waters, instituted by articles 7-12 of the Treaty of Washington of January 11, 1909; see Treaty Series, 1910, No. 23. (3) The permanent Mixed Fisheries Commission between the United States, Canada, and Newfoundland, instituted in consequence of the award of the Hague Court of Arbitration in the North Atlantic Fisheries Case.
As regards the privileges to be granted to the members of either temporary or permanent international commissions, no distinct practice has grown up. If the treaty according to which a commission concerned does not stipulate anything as regards such privileges, none need be granted, but the persons of the commissioners must be specially protected. However that may be, there is no doubt that members of international commissions cannot, unless this be specially stipulated, claim the privileges of diplomatic envoys. Thus, when in 1796 Messrs. Gore and Pinkney,[802] the American Commissioners in London under article 7 of the Jay Treaty, claimed these privileges, Great Britain refused to concede them.
[802] See Moore, IV. § 623, p. 428.
Commissions in the interest of Navigation.
§ 459. Four international commissions have been instituted in the interest of navigation—namely, two for the river Danube, one for the Congo river, and one for the Suez Canal.
1. With regard to navigation on the Danube, the European Danube Commission was instituted by article 16 of the Peace Treaty of Paris in 1856. This commission, whose members are appointed by the signatory Powers of the Treaty of Paris, was reconstituted by the Berlin Conference in 1878 and again by the Conference of London in 1883. The commission is totally independent of the territorial Governments, its rights are clearly defined, and its members, offices, and archives enjoy the privilege of inviolability. The competence of the European Danube Commission comprehends the Danube from Ibraila downwards to its mouth.[803]
[803] Details in Twiss, I. §§ 150-152.
2. The above-mentioned London Conference of 1883 has sanctioned regulations[804] in regard to the navigation and river-police of the Danube from the Iron Gates down to Ibraila, and has, by article 96 of these regulations, instituted the Mixed Commission of the Danube to enforce the observance of the regulations. The members of this Commission are delegates from Austria-Hungary, Bulgaria, Roumania, Servia, and the European Danube Commission—one member from each.[805]
[804] Martens, N.R.G. 2nd Ser. IX. p. 394.
[805] Details in Twiss, § 152.
3. The Powers represented at the Berlin Congo Conference of 1884 have sanctioned certain regulations in regard to navigation on the Congo river, and have, by articles 17-21 of the General Act of the Conference, instituted an International Commission of the Congo to enforce the observance of these regulations. This Commission, in which every signatory Power may be represented by one member, is totally independent of the territorial Governments, and its members, offices, and archives enjoy the privilege of inviolability.[806]
[806] Details in Calvo, I. § 334. According to Liszt, § 16, II. 3, this Commission has never been appointed.
4. By article 8 of the Treaty of Constantinople of 1888 in regard to the neutralisation of the Suez Canal, a Commission was instituted for the supervision of the execution of that treaty. The Commission consists of all the consuls of the signatory Powers in Egypt.[807]
Commissions in the interest of Sanitation.
§ 460. Three international commissions in the interest of sanitation are in existence. For the purpose of supervising the sanitary arrangements in connection with the navigation on the lower part of the Danube, the International Council of Sanitation was instituted at Bucharest in 1881.[808] The Conseil supérieur de santé at Constantinople has the task of supervising the arrangements concerning cholera and plague. The Conseil sanitaire maritime et quarantenaire at Alexandria has similar tasks and is subject to the control of the Conseil supérieur de santé at Constantinople.[809] As regards the International Health Office at Paris, see below, § [590, No. 6].
[808] See article 6 of the Acte additionnel à l'Acte public du 2 novembre 1865 pour la navigation des embouchures du Danube, signed on May 28, 1881; Martens, N.R.G. 2nd Ser. VIII. p. 207.
[809] Details in Liszt, § 16, III., where likewise information is to be found as regards the Conseil sanitaire at Tangiers, which consists of all the foreign envoys in Morocco.
Commissions in the Interest of Foreign Creditors.
§ 461. Three international commissions in the interest of foreign creditors are in existence—namely, in Turkey since 1878, in Egypt since 1880, and in Greece since 1897.[810]
[810] See Kaufmann, "Das internationale Recht der aegyptischen Staatsschuld" (1891), and Murat, "Le contrôle international sur les finances de l'Egypte, de la Grèce et de la Turquie" (1899).
Permanent Commission concerning Sugar.
§ 462. According to article 7 of the Brussels Convention concerning bounties on sugar, a permanent commission was instituted in 1902 at Brussels.[811]
[811] See below, § [585, No. 3].
V INTERNATIONAL OFFICES
Rivier, I. pp. 564-566—Nys, II. pp. 264-270—Ullmann, § 58—Liszt, § 17—Gareis, § 52—Descamps, "Les offices internationaux et leur avenir" (1894).
Character of International Offices.
§ 463. During the second half of the nineteenth century a great number of general treaties were entered into by a greater or lesser number of States for the purpose of settling in common certain non-political matters. These general treaties create so-called unions among the parties, and the business of these unions is in most cases transacted by international offices created specially for that purpose. The functionaries of these offices, however, ordinarily enjoy no privilege whatever. The number of these offices is constantly increasing. Only the more important ones are here enumerated, with the exclusion of the International Bureau of Arbitration,[812] which, although an international office, has no relation to those here discussed.
International Telegraph Offices.
§ 464. In 1868 the international telegraph office of the International Telegraph Union was created at Berne. It is administered by four functionaries under the supervision of the Swiss Bundesrath. It edits the Journal Télégraphique in French.[813] Connected with this office is, since 1906, the International Office for Radiotelegraphy.[814]
[813] See below, § [582, No. 2].
[814] See below, § [582, No. 4].
International Post Office.
§ 465. The pendant of the international telegraph office is the international post office of the Universal Postal Union created at Berne in 1874. It is administered by seven functionaries under the supervision of the Swiss Bundesrath, and edits a monthly, L'Union Postale, in French, German, and English.[815]
[815] See below, § [582], No. 1.
International Office of Weights and Measures.
§ 466. The States which have introduced the metric system of weights and measures created in 1875 the international office of weights and measures in Paris. Of functionaries there are a director and several assistants. Their task is the custody of the international prototypes of the metre and kilogramme and the comparison of the national prototypes with the international.[816]
[816] See below, § [588, No. 1].
International Office for the Protection of Works of Literature and Art and of Industrial Property.
§ 467. In 1883 an International Union for the Protection of Industrial Property, and in 1886 an International Union for the Protection of Works of Literature and Art, were created, with an international office in Berne. There are a secretary-general and three assistants, who edit a monthly, Le Droit d'Auteur, in French.[817]
[817] See below, §§ [584] and [585, No. 2].
The Pan-American Union.
§ 467a. The first Pan-American Conference of 1889 created "The American International Bureau," which, since the fourth Conference of 1910, bears the name "The Pan-American Union." There are a director, an assistant director, and several secretaries. This office[818] publishes a "Monthly Bulletin."
Maritime Office at Zanzibar, and Bureau Spécial at Brussels.
§ 468. In accordance with the General Act of the Anti-Slavery Conference of Brussels, 1890, the International Maritime Office at Zanzibar and the "Bureau Spécial" at Brussels were established; the latter is attached to the Belgian Foreign Office at Brussels.[819]
[819] See below, § [592, No. 1].
International Office of Customs Tariffs.
§ 469. The International Union for the Publication of Customs Tariffs, concluded in 1890, has created an international office[820] at Brussels. There are a director, a secretary, and ten translators. The office edits the Bulletin des Douanes in French, German, English, Italian, and Spanish.
[820] See below, § [585, No. 1].
Central Office of International Transports.
§ 470. Nine States—namely, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Luxemburg, Russia, Switzerland—entered in 1890 into an international convention in regard to transports and freights on railways and have created the "Office Central des Transports[821] Internationaux" at Berne.
[821] See below, § [583, No. 1].
Permanent Office of the Sugar Convention.
§ 471. The States which concluded on March 5, 1902, at Brussels the Convention concerning bounties on sugar[822] have, in compliance with article 7 of this Convention, instituted a permanent office at Brussels. The task of this office, which is attached to the permanent commission,[823] also instituted by article 7, is to collect, translate, and publish information of all kinds respecting legislation on and statistics of sugar.
[822] See below, § [585, No. 3.]
Agricultural Institute.
§ 471a. In 1905 the Agricultural Institute[824] was established at Rome. It consists of a General Assembly and a Permanent Committee with a general secretary.
[824] See below, § [586, No. 1].
International Health Office.
§ 471b. In 1907 the International Health Office[825] was established at Paris. It consists of a director, a general secretary, and a number of clerks. It publishes at least once a month a bulletin in French.
[825] See below, § [590], No. 6.
VI THE INTERNATIONAL COURT OF ARBITRATION
Lawrence, § 221—Bonfils, No. 9708—Despagnet, Nos. 736-740.
Organisation of Court in general.
§ 472. In compliance with articles 20 to 29 of the Hague Convention for the peaceful adjustment of international differences, the signatory Powers in 1900 organised the International Court of Arbitration at the Hague. This organisation comprises three distinct bodies—namely, the Permanent Administrative Council of the Court, the International Bureau of the Court, and the Court of Arbitration itself. But a fourth body must also be distinguished—namely, the tribunal to be constituted for the decision of every case. Articles 20 to 29 are now replaced by articles 41 to 50 of the Convention for the peaceful adjustment of international differences produced by the second Hague Peace Conference of 1907.
The Permanent Council.
§ 473. The Permanent Council (article 49) consists of the diplomatic envoys of the contracting Powers accredited to Holland and the Dutch Secretary for Foreign Affairs, who acts as president of the Council. The task of the Council is the control of the International Bureau of the Court, the appointment, suspension, and dismissal of the employés of the bureau, the fixing of the payments and salaries, the control of the general expenditure, and the decision of all questions of administration with regard to the business of the Court. The Council has, further, the task of furnishing the signatory Powers with a report of the proceedings of the Court, the working of the administration, and the expenses. At meetings duly summoned, the presence of nine members is sufficient to give the Council power to deliberate, and its decisions are taken by a majority of votes.
The International Bureau.
§ 474. The International Bureau (article 43) serves as the Registry for the Court. It is the intermediary for communications relating to the meetings of the Court. It has the custody of the archives and the conduct of all the administrative business of the Court. The contracting Powers have to furnish the Bureau with a certified copy of every stipulation concerning arbitration arrived at between them, and of any award concerning them rendered by a special tribunal. They likewise have to communicate to the Bureau the laws, regulations, and documents, if any, showing the execution of the awards given by the Court. The Bureau is (article 47) authorised to place its premises and its staff at the disposal of the contracting Powers for the work of any special[826] tribunal of arbitration not constituted within the International Court of Arbitration. The expense (article 50) of the Bureau is borne by the signatory Powers in the proportion established for the International Office of the International Postal Union.
[826] See below, [vol. II. § 20].
The Court of Arbitration.
§ 475. The Court of Arbitration (article 44) consists of a large number of individuals "of recognised competence in questions of International Law, enjoying the highest moral reputation," selected and appointed by the contracting Powers. No more than four members may be appointed by one Power, but two or more Powers may unite in the appointment of one or more members, and the same individual may be appointed by different Powers. Every member is appointed for a term of six years, but his appointment may be renewed. The place of a resigned or deceased member is to be refilled by the respective Powers, and in this case the appointment is made for a fresh period of six years. The names of the members of the Court thus appointed are enrolled upon a general list, which is to be kept up to date and communicated to all the contracting Powers. The Court thus constituted has jurisdiction over all cases of arbitration, unless there shall be an agreement between the parties for a special tribunal of arbitrators not selected from the list of the members of the Court (article 42).
The Deciding Tribunal.
§ 476. The Court of Arbitration does not as a body decide the cases brought before it, but a tribunal is created for every special case by selection of a number of arbitrators from the list of the members of the Court. This tribunal (article 45) may be created directly by agreement of the parties. If this is not done, the tribunal is formed in the following manner:—Each party selects two arbitrators from the list, of whom one only can be its national or chosen from the persons appointed by it as members of the Permanent Court, and the four arbitrators so appointed choose a fifth as umpire and president. If the votes of the four are equal, the parties entrust to a third Power the choice of the umpire. If the parties cannot agree in their choice of such third Power, each party nominates a different Power, and the umpire is chosen by the united action of the Powers thus nominated. If within two months' time these two Powers cannot come to an agreement, each of them presents two candidates from the list of members of the Permanent Court, exclusive of the members selected by the parties and not being nationals of either of them. Which of the candidates thus selected shall be the umpire is determined by lot.
After this is done, the tribunal is constituted, and the parties communicate to the International Bureau of the Court the names of the members of the tribunal, which meets at the time fixed by the parties; the members of the tribunal must be granted the privileges of diplomatic envoys when discharging their duties outside their own country (article 46). The tribunal sits at the Hague (article 43), and, except in case of force majeure, the place of session can only be altered by the tribunal with the assent of the parties, but the parties can from the beginning designate another place than the Hague as the venue of the tribunal (article 60). The expenses of the tribunal are paid by the parties in equal shares, and each party pays its own expenses (article 85).[827]
[827] The procedure to be followed by and before the Tribunal is described below, [vol. II. § 27].
The following nine awards have hitherto been given by the Permanent Court of Arbitration:—
(1) On October 14, 1902, in the case of the United States of America v. Mexico concerning the Fonds pieux des Californias; see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 193.
(2) On February 22, 1904, in the case of Germany, Great Britain, and Italy v. Venezuela concerning certain claims of their subjects; see Martens, N.R.G. 3rd Ser. I. (1909), p. 57.
(3) On May 22, 1905, in the case of Germany, France, and Great Britain v. Japan concerning the interpretation of article 18 of the treaty of April 4, 1896, and of other treaties; see Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 376.
(4) On August 8, 1905, in the case of France v. Great Britain concerning the Muscat Dhows; see Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 356.
(5) On May 22, 1909, in the case of France v. Germany concerning the Casa Banca incident; see Martens, N.R.G. 3rd Ser. II. (1910), p. 19.
(6) On October 23, 1909, in the case of Norway v. Sweden concerning the question of their maritime frontier; see Martens, N.R.G. 3rd Ser. III. (1910), p. 85.
(7) On September 7, 1910, in the case of the United States of America v. Great Britain concerning the North Atlantic Fisheries; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 89.
(8) On October 25, 1910, in the case of the United States of America v. Venezuela concerning the claims of the Orinoco Steamship Co.; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 79.
(9) On February 24, 1911, in the case of France v. Great Britain concerning the British-Indian Savarkar; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 744.
VII THE INTERNATIONAL PRIZE COURT AND THE PROPOSED INTERNATIONAL COURT OF JUSTICE
Lawrence, § 192—Despagnet, No. 683^{bis}—Scott, "The Hague Peace Conferences" (1909), pp. 465-511 and 423-464, and in A.J. V. (1911), pp. 302-324—Gregory in A.J. II. (1908), pp. 458-475.
The International Prize Court.
§ 476a. The International Prize Court will be established at the Hague according to Convention XII. of the second Hague Peace Conference of 1907. The following are the more important stipulations of this Convention concerning the constitution[828] of the Court:—The Court consists of fifteen judges and fifteen deputy-judges, who are appointed for a period of six years and who rank equally and have precedence according to the date of the notification of their appointment, but the deputy judges rank after the judges (articles 10 to 12). Of the fifteen judges of which the Court is composed, nine constitute a quorum; a judge who is absent or prevented from sitting is replaced by his deputy judge (article 14). The judges enjoy diplomatic privileges and immunities in the performance of their duties when outside their own country (article 13). Each contracting Power appoints one judge and one deputy judge, and the judges appointed by Great Britain, Germany, the United States of America, Austria-Hungary, France, Italy, Japan, and Russia are always summoned to sit, whereas the judges appointed by the other contracting Powers sit by rota, as shown in the table annexed to the Convention (article 15). If a belligerent Power has, according to the rota, no judge sitting in the Court, it may ask that the judge appointed by it shall take part in the settlement of all cases arising from the war; lots shall then be drawn as to which of the judges entitled to sit according to the rota shall withdraw, and this arrangement does not affect the judge appointed by the other belligerent (article 16). No judge can sit who has been a party, in any way whatever, to the sentence pronounced by the National Courts, or has taken part in the case as counsel or advocate for one of the parties; no judge or deputy judge can, during his tenure of office, appear as agent or advocate before the International Prize Court, nor act for one of the parties in any capacity whatever (article 17). The belligerent captor is entitled to appoint a naval officer of high rank to sit as assessor, but with no voice in the decision; a neutral Power, which is a party to the proceedings or whose national is a party, has the same right of appointment; if in applying this last provision more than one Power is concerned, they must agree among themselves, if necessary by lot, on the officer to be appointed (article 18). The Court elects its President and Vice-President by an absolute majority of the votes cast; after two ballots, the election is made by a bare majority, and, in case the votes are equal, by lot (article 19). The judges of the International Prize Court are entitled to travelling allowances in accordance with the regulations in force in their own country, and in addition thereto receive, while the Court is sitting or while they are carrying out duties conferred upon them by the Court, a sum of 100 Netherland florins per diem; the judges may not receive from their own Governments or from that of any other Power any remuneration in their capacity of members of the Court (article 20). The seat of the International Prize Court is at the Hague, and it cannot, except in the case of force majeure, be transferred elsewhere without the consent of the belligerents (article 21).
[828] Details concerning the constitution of the International Prize Court and the mode of procedure to be followed by and before it, will be given below, [vol. II. part III. chapter VI].
The proposed International Court of Justice.
§ 476b. Valuable as is the Permanent Court of Arbitration at the Hague, it must be pointed out that it is not a real Court of Justice. For, firstly, it is not itself a deciding tribunal, but only a list of names out of which the parties in each case elect some members and thereby constitute the Court. Secondly, experience teaches that a Court of Arbitration endeavours more to give an award ex aequo et bono which more or less pleases both parties than to decide the conflict in a judicial manner by simply applying strict legal rules without any consideration as to whether or no the decision will please either party. Thirdly, since in conflicts to be decided by arbitration the arbitrators each time are selected by the parties, there are in most cases different individuals acting as arbitrators, so that there is no continuity in the administration of justice.
For these reasons it would be of the greatest value to institute side by side with the Permanent Court of Arbitration a real International Court of Justice consisting of a number of judges in the technical sense of the term, who are once for all appointed and will have to act in each case that the parties choose to bring before the Court. Such a Court would only take the legal aspects of the case into consideration and would base its decision on mere legal deliberations. It would secure continuity in the administration of international justice, because it would in each case consider itself bound by its former decisions. It would in time build up a valuable practice by deciding innumerable controversies which as yet haunt the theory of International Law. The second Hague Peace Conference of 1907 therefore discussed the question of creating such a Court, but only produced the draft of a Convention concerning the subject. It is, however, to be regretted that this draft Convention speaks of the creation of a judicial "Arbitration" Court, and thereby obliterates the boundary line between the arbitral and the strictly judicial decision of international disputes; it would have been better to speak simply of an International Court of Justice. However that may be, there is no doubt that the near future will bring the establishment of such a Court of Justice in contradistinction to the Permanent Court of Arbitration, for the parties to a conflict frequently hesitate to have it settled by arbitration, whereas they would be glad to have it settled by a strictly judicial decision of the legal questions involved. The same motives which urged the Powers to leave aside the Permanent Court of Arbitration in Prize Cases and to enter into a Convention for the establishment of a real International Prize Court, will in time compel the Powers to establish a real International Court of Justice.[829]
[829] It should be mentioned that Costa Rica, Guatemala, Honduras, Nicaragua, and San Salvador in 1907—see Supplement to the American Journal of International Law, II. (1908), p. 231—established the "Central American Court of Justice" at Cartago, consisting of five judges, to which they have bound themselves to submit all controversies arising amongst them, of whatsoever nature, no matter what the origin may be, in case they cannot be settled by diplomatic negotiation. This Court is, however, only of local importance, although it is of great value, being the first Court of its kind.