1 This JOURNAL, Supplement, 11: 5.

2 Ibid.

3 This JOURNAL, 11:158, 159.

4 Conflicts of International Law with National Laws and Ordinances, this JOURNAL, 11:1.

5 “‘All legislation is prima facie territorial.’ Words having universal scope such as ‘every contract in restraint of trade’… will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator may subsequently be able to catch.” Justice Holmes, in American Banana Co. v. United Fruit Co., 213 U. S. 347 (1909).

6 Even here the expression of the state’s will must be unequivocal. Thus less definite sources of municipal law, such as executive orders, judicial precedents, etc., will not always stand in the way of the application of international law, even in case of a clear conflict, and municipal law will always be interpreted in harmony with international law if possible. See this JOURNAL, 11:1.

7 The theory of sovereignty can be saved even here by assuming that the law is formed by agreement, in which case the will of each is not limited because it forms a voluntary component of the volonté générale. We speak, however, of sovereignty in the legal sense which gives meaning to the phrase, “The king can do no wrong.” It is very clear that the will of the “sovereign” as expressed today by king, or president, or legislature may not be in accord with the volonté générate embodied in international law, even though the “sovereign” may have “agreed” to that law in the past.

8 Judicial recourse to the doctrine of “political questions,” “acts of state,” and “actes du gouvemment,” usually means that on matters relating to external sovereignty the courts have no jurisdiction and so will regard the acts of political agencies of the government as facts to be accepted, not as legal questions to be judged.

9 By signatories is meant states which have signed and ratified the treaty and exchanged ratifications. A state which has signed but not ratified a treaty is legally in the same situation as a state which has had nothing to do with the instrument.

10 Examples are furnished by Article 12 of the treaty between the United States and Italy of 1871 abolishing the right of capturing enemy property at sea, and prior to 1856 by the numerous treaties providing for free ships, free goods. Many provisions of the Hague Conventions, as, for instance, No. XI, 1907, Article 5, exempting the crew of captured enemy merchant ships from detention as prisoners of war, are also meliorations of customary international law.

11 Henry Wheaton, The Elements of International Law, 1st ed., Philadelphia, 1836, p. 50. As authority, Lord Grenville’s speech in the House of Lords, Nov. 13, 1801 (Hansard, 86: 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 lamer, 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, p. 814.

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, p. 1520.

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 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 v. 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.

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.

21 The Appam, March 17, 1916, this JOURNAL, 11: 448, 453.

22 Malloy, p. 1492, revived by treaty of 1828, Art. 12, ibid., p. 1499.

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.

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.

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. JUT. 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 Prance 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 privileges 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. B. 0. 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. CI. 116 (1892).

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

38 See treaty United States-France, 1778, Arts. 17,19, 22; treaty United States-Great 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 privates 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, 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.