"Un commentaire précis, dégagé de tout controverse, qui, devenu commentaire officiel par l'approbation de la Conférence, soit de nature à guider les autorités diverses, administratives, militaires, judiciaires, qui pourront avoir à l'appliquer." (Miscell. 1909, No. 5, p. 344.)
It would seem that in each of these cases the adoption of the Report, and even a suggestion or two for a change [201]in its phraseology, amounted to nothing more than an expression of opinion on the part of the Delegates to the Conference that the Report contained explanations which had satisfied themselves, and might satisfy their Governments, that the Convention which they were about to forward to those Governments might safely be accepted.
So far as Governments are concerned, the adoption of a Report by their Delegates is res inter alios acta. An "authentic interpretation" of a contract can be given only by the parties to it, who, in the case of a treaty, are the States concerned. If these States desire to give to the report of a drafting committee the force of an authentic interpretation of their contract, they can surely do so only by something amounting to a supplementary convention. Writers upon international law naturally throw but little light upon questions to which the somewhat novel practice of argumentative drafting Reports has given rise; but I may cite Professor Ullmann, of Vienna, as saying:—
"Eine authentische Interpretation kann nur die durch Kontrahenten selbst, in einem gemeinschaftlichen, ihren Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder Erlauterungsvertrage), erfolgen" (Volkerrecht, p. 282);
and Professor Fiore, of Naples, to the effect that what is called "authentic interpretation" is not
"interpretazione propriamente detta, ma una dichiarazione di quello che fu gia concordato, o un nuovo trattato" (Diritto Internazionale, ss. 1, 118);
and that
"il trattato non può essere interpretato che dalle stesse Parti (i.e. Stati) contrahenti; e per la validità dell' atto è indispensabile che la relativa convenzione di interpretazione abbia gli stessi requisiti ... di ogni altra convenzione tra Stato e Stato" (Il Dir. Int. Codif., § 816).
I would submit that such a Report as that which accompanies the Declaration of London has no claim to the sort of interpretative authority which has been attributed to it; nor is it desirable that the requisite steps should be taken [202]for giving it that authority. It would be calamitous should a practice be introduced of attempting to cure the imperfect expression of a treaty by tacking on to it an equally authoritative reasoned commentary, likely, as in the present case, to be enormously longer than the test to which it relates.
It is a wholly different question whether Governments or Courts would be inclined to take notice of such a Report, among other facts antecedent to a Convention, or Declaration, which they might be called upon to construe. A British Court would not, I conceive, be so inclined. On the probable inclinations of Continental Courts, and of an International Prize Court, should one be instituted, further expert information would seem to be called for.