§ 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]

§ 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]

§ 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]

§ 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]

§ 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."

§ 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]

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

VI THE INTERNATIONAL COURT OF ARBITRATION

Lawrence, § 221—Bonfils, No. 9708—Despagnet, Nos. 736-740.

§ 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.

§ 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.

§ 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.

§ 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).

§ 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]

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.

§ 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).

§ 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]

PART IV INTERNATIONAL TRANSACTIONS

CHAPTER I ON INTERNATIONAL TRANSACTIONS IN GENERAL

I NEGOTIATION

Heffter, §§ 234-239—Geffcken in Holtzendorff, III. pp. 668-676—Liszt, § 20—Ullmann, § 71—Bonfils, Nos. 792-795—Pradier-Fodéré, III. Nos. 1354-1362—Rivier, II. § 45—Calvo, III. §§ 1316-1320, 1670-1673.

§ 477. International negotiation is the term for such intercourse between two or more States as is initiated and directed for the purpose of effecting an understanding between them on matters of interest. Since civilised States form a body interknitted through their interests, such negotiation is in some shape or other constantly going on. No State of any importance can abstain from it in practice. There are many other international transactions,[830] but negotiation is by far the most important of them. And it must be emphasised that negotiation as a means of amicably settling conflicts between two or more States is only a particular kind of negotiation, although it will be specially discussed in another part of this work.[831]

§ 478. International negotiations can be conducted by all such States as have a standing within the Family of Nations. Full-Sovereign States are, therefore, the regular subjects of international negotiation. But it would be wrong to maintain that half- and part-Sovereign States can never be parties to international negotiations. For they can indeed conduct negotiations on those points concerning which they have a standing within the Family of Nations. Thus, for instance, while Bulgaria was a half-Sovereign State, she was nevertheless able to negotiate on several matters with foreign States independently of Turkey.[832] But so-called colonial States, as the Dominion of Canada, can never be parties to international negotiations; any necessary negotiation for a colonial State must be conducted by the mother-State to which it internationally belongs.[833]

It must be specially mentioned that such negotiation as is conducted between a State, on the one hand, and, on the other, a party which is not a State, is not international negotiation, although such party may reside abroad. Thus, negotiations of a State with the Pope and the Holy See are not international negotiations, although all the formalities connected with international negotiations are usually observed in this case. Thus, too, negotiations on the part of States with a body of foreign bankers and contractors concerning a loan, the building of a railway, the working of a mine, and the like, are not international negotiations.

§ 479. Negotiations between States may have various purposes. The purpose may be an exchange of views only on some political question; but it may also be an arrangement as to the line of action to be taken in future with regard to a certain point, or a settlement of differences, or the creation of international institutions, such as the Universal Postal Union for example, and so on. Of the greatest importance are those negotiations which aim at an understanding between members of the Family of Nations respecting the very creation of rules of International Law by international conventions. Since the Vienna Congress at the beginning of the nineteenth century negotiations between the Powers for the purpose of defining, creating, or abolishing rules of International Law have been frequently and very successfully conducted.[834]

§ 480. International negotiations are conducted by the agents which represent the negotiating States. The heads of these States may conduct the negotiations in person, either by letters or by a personal interview. Serious negotiations have in the past been conducted by heads of States, and, although this is comparatively seldom done, there is no reason to believe that personal negotiations between heads of States will not occur in future.[835] Heads of States may also personally negotiate with diplomatic or other agents commissioned for that purpose by other States. Ambassadors, as diplomatic agents of the first class, must, according to International Law, have even the right to approach in person the head of the State to which they are accredited for the purpose of negotiation.[836] The rule is, however, that negotiation between States concerning more important matters is conducted by their Secretaries for Foreign Affairs, with the help either of their diplomatic envoys or of agents without diplomatic character and so-called commissaries.[837]

§ 481. The Law of Nations does not prescribe any particular form in which international negotiations must be conducted. Such negotiations may, therefore, take place viva voce or through the exchange of written representations and arguments, or both. The more important negotiations are regularly conducted through the diplomatic exchange of written communications, as only in this way can misunderstandings be avoided, which easily arise during viva voce negotiations. Of the greatest importance are the negotiations which take place through congresses and conferences.[838]

During viva voce negotiations it happens sometimes that a diplomatic envoy negotiating with the Secretary for Foreign Affairs reads out a letter received from his home State. In such case it is usual to leave a copy of the letter at the Foreign Office. If a copy is refused, the Secretary for Foreign Affairs can on his part refuse to hear the letter read. Thus in 1825 Canning refused to allow a Russian communication to be read to him by the Russian Ambassador in London with regard to the independence of the former Spanish colonies in South America, because this Ambassador was not authorised to leave a copy of the communication at the British Foreign Office.[839]

§ 482. Negotiations may and often do come to an end without any effect whatever on account of the parties failing to agree. On the other hand, if negotiations lead to an understanding, the effect may be twofold. It may consist either in a satisfactory exchange of views and intentions, and the parties are then in no way, at any rate not legally, bound to abide by such views and intentions, or to act on them in the future; or in an agreement on a treaty, and then the parties are legally bound by the stipulations of such treaty. Treaties are of such importance that it is necessary to discuss them in a special chapter.[840]

II CONGRESSES AND CONFERENCES

Phillimore, II. §§ 39-40—Twiss, II. § 8—Taylor, §§ 34-36—Bluntschli, § 12—Heffter, § 242—Geffcken in Holtzendorff, III. pp. 679-684—Ullmann, §§ 71-72—Bonfils, Nos. 796-814—Despagnet, Nos. 478-482—Pradier-Fodéré, VI. Nos. 2593-2599—Rivier, II. § 46—Nys, III. pp. 7-17—Calvo, III. §§ 1674-1681—Fiore, II. Nos. 1216-1224, and Code, Nos. 1206-1245—Martens, I. § 52—Charles de Martens, "Guide diplomatique," vol. I. § 58—Pradier-Fodéré, "Cours de droit diplomatique" (1881), vol. II. pp. 372-424—Zaleski, "Die völkerrechtliche Bedeutung der Congresse" (1874)—Nippold, "Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten" (1907), pp. 480-526.

§ 483. International congresses and conferences are formal meetings of the representatives of several States for the purpose of discussing matters of international interest and coming to an agreement concerning these matters. As far as language is concerned, the term "congress" as well as "conference" may be used for the meetings of the representatives of only two States, but as a rule congresses or conferences denote such bodies only as are composed of the representatives of a greater number of States. Several writers[841] allege that there are characteristic differences between a congress and a conference. But all such alleged differences vanish in face of the fact that the Powers, when summoning a meeting of representatives, name such body either congress or conference indiscriminately. It is not even correct to say that the more important meetings are named congresses, in contradistinction to conferences, for the Hague Peace Conferences of 1899 and 1907 were, in spite of their grand importance, denominated conferences.

Much more important than the mere terminological difference between congress and conference is the difference of the representatives who attend the meeting.

For it may be that the heads of the States meet at a congress or conference, or that the representatives consist of diplomatic envoys and Secretaries for Foreign Affairs of the Powers. But, although congresses and conferences of heads of States have been held in the past and might at any moment be held again in the future, there can be no doubt that the most important matters are treated by congresses and conferences consisting of diplomatic representatives of the Powers.