§ 575. The effect of guarantee treaties is the creation of the duty of the guarantors to do what is in their power in order to secure the guaranteed objects. The compulsion to be applied by a guarantor for that purpose depends upon the circumstances; it may eventually be war. But the duty of the guarantor to render, even by compulsion, the promised assistance to the guaranteed depends upon many conditions and circumstances. Thus, first, the guaranteed must request the guarantor to render assistance. When, for instance, the possession of a certain part of its territory is guaranteed to a State which after its defeat in a war with a third State agrees as a condition of peace to cede such piece of territory to the victor without having requested the intervention of the guarantor, the latter has neither a right nor a duty to interfere. Thus, secondly, the guarantor must at the critical time be able to render the required assistance. When, for instance, its hands are tied through waging war against a third State, or when it is so weak through internal troubles or other factors that its interference would expose it to a serious danger, it is not bound to fulfil the request for assistance. So too, when the guaranteed has not complied with previous advice given by the guarantor as to the line of its behaviour, it is not the guarantor's duty to render assistance afterwards.

It is impossible to state all the circumstances and conditions upon which the fulfilment of the duty of the guarantor depends, as every case must be judged upon its own merits. And it is certain that, more frequently than in other cases, changes in political constellations and the general developments of events may involve such vital change of circumstances as to justify[944] a State in refusing to interfere in spite of a treaty of guarantee. It is for this reason that treaties of guarantee to secure permanently a certain object to a State are naturally of a more or less precarious value to the latter. The practical value, therefore, of a guarantee treaty, whatever may be its formal character, would as a rule seem to extend to the early years only of its existence while the original conditions still obtain.

§ 576. In contradistinction to treaties constituting a guarantee on the part of one or more States severally, the effect of treaties constituting a collective guarantee on the part of several States requires special consideration. On June 20, 1867, Lord Derby maintained[945] in the House of Lords concerning the collective guarantee by the Powers of the neutralisation of Luxemburg that in case of a collective guarantee each guarantor had only the duty to act according to the treaty when all the other guarantors were ready to act likewise; that, consequently, if one of the guarantors themselves should violate the neutrality of Luxemburg, the duty to act according to the treaty of collective guarantee would not accrue to the other guarantors. This opinion is certainly not correct,[946] and I do not know of any publicist who would or could approve of it. There ought to be no doubt that in a case of collective guarantee one of the guarantors alone cannot be considered bound to act according to the treaty of guarantee. For a collective guarantee can have the meaning only that the guarantors should act in a body. But if one of the guarantors themselves violates the object of his own guarantee, the body of the guarantors remains, and it is certainly their duty to act against such faithless co-guarantor. If, however, the majority,[947] and therefore the body of the guarantors, were to violate the very object of their guarantee, the duty to act against them would not accrue to the minority.

Different, however, is the case in which a number of Powers have collectively and severally guaranteed a certain object. Then, not only as a body but also individually, it is their duty to interfere in any case of violation of the object of guarantee.

§ 576a. Different from real Guarantee Treaties are such treaties as declare the policy of the parties with regard to the maintenance of their territorial status quo. Whereas treaties guaranteeing the maintenance of the territorial status quo engage the guarantors to do what they can to maintain such status quo, treaties declaring the policy of the parties with regard to the maintenance of their territorial status quo do not contain any legal engagements, but simply state the firm resolution of the parties to uphold the status quo. In contradistinction to real guarantee treaties, such treaties declaring the policy of the parties may fitly be called Pseudo-Guarantee Treaties, and although their political value is very great, they have scarcely any legal importance. For the parties do not bind themselves to pursue a policy for maintaining the status quo, they only declare their firm resolution to that end. Further, the parties do not engage themselves to uphold the status quo, but only to communicate with one another, in case the status quo is threatened, with a view to agreeing upon such measures as they may consider advisable for the maintenance of the status quo. To this class of pseudo-guarantee treaties belong:—

(1) The Declarations[948] exchanged on May 16, 1907, between France and Spain on the one hand, and, on the other hand, between Great Britain and Spain, concerning the territorial status quo in the Mediterranean. Each party declares that its general policy with regard to the Mediterranean is directed to the maintenance of the territorial status quo, and that it is therefore resolved to preserve intact its rights over its insular and maritime possessions within the Mediterranean. Each party declares, further, that, should circumstances arise which would tend to alter the existing territorial status quo, it will communicate with the other party in order to afford it the opportunity to concert, if desired, by mutual agreement the course of action which the two parties shall adopt in common.

(2) The Declarations[949] concerning the maintenance of the territorial status quo in the North Sea, signed at Berlin on April 23, 1908, by Great Britain, Germany, Denmark, France, Holland, and Sweden, and concerning the maintenance of the territorial status quo in the Baltic, signed at St. Petersburg, likewise on April 23, 1908, by Germany, Denmark, Russia, and Sweden. The parties declare their firm resolution to preserve intact the rights of all the parties over their continental and insular possessions within the region of the North Sea, and of the Baltic respectively. And the parties concerned further declare that, should the present territorial status quo be threatened by any events whatever, they will enter into communication with one another with a view to agreeing upon such measures as they may consider advisable in the interest of the maintenance of the status quo.

There is no doubt that the texts of the Declarations concerning the status quo in the North Sea and the Baltic stipulate a stricter engagement of the respective parties than the texts of the Declarations concerning the status quo in the Mediterranean, but neither[950] of them comprises a real legal guarantee.

§ 577. Different from guarantee treaties are treaties of protection. Whereas the former constitute the guarantee of a certain object to the guaranteed, treaties of protection are treaties by which strong States simply engage to protect weaker States without any guarantee whatever. A treaty of protection must, however, not be confounded with a treaty of protectorate.[951]

IV COMMERCIAL TREATIES

Taylor, 354—Moore, V. §§ 765-769—Melle in Holtzendorff, III. pp. 143-256—Liszt, § 28—Ullmann, § 145—Bonfils, No. 918—Despagnet, No. 462—Pradier-Fodéré, IV. Nos. 2005-2033—Mérignhac, II. pp. 688-693—Rivier, I. pp. 370-374—Fiore, II. Nos. 1065-1077, and Code, Nos. 848-854—Martens, II. §§ 52-55—Steck, "Versuch über Handels- und Schiffahrtsverträge" (1782)—Schraut, "System der Handelsverträge und der Meistbegünstigung" (1884)—Veillcovitch, "Les traités de commerce" (1892)—Nys, "Les origines du droit international" (1894), pp. 278-294—Herod, "Favoured Nation Treatment" (1901)—Calwer, "Die Meistbegünstigung in den Vereinigten Staaten von Nord-America" (1902)—Glier, "Die Meistbegünstigungs-Klausel" (1906)—Cavaretta, "La clausola della natiozione più favorita" (1906)—Barclay, "Problems of International Law and Diplomacy" (1907), pp. 137-142—Hornbeck, "The Most-Favoured Nation Clause" (1910), and in A.J. III. (1909), pp. 394-422, 619-647, and 798-827—Lehr in R.I. XXV. (1893), pp. 313-316—Visser in R.I. 2nd Ser. IV. (1902), pp. 66-87, 159-177, and 270-280—Lehr in R.I. 2nd Ser. XII. (1910), pp. 657-668—Shepheard in The Journal of the Society of Comparative Legislation, New Series, III. (1901), pp. 231-237, and V. (1903), pp. 132-136—Oppenheim in The Law Quarterly Review, XXIV. (1908), pp. 328-334.

§ 578. Commercial treaties are treaties concerning the commerce and navigation of the contracting States and concerning the subjects of these States who are engaged in commerce and navigation. Incidentally, however, they also contain clauses concerning consuls and various other matters. They are concluded either for a limited or an unlimited number of years, and either for the whole territory of one or either party or only for a part of such territory—e.g., by Great Britain for the United Kingdom alone, or for Canada alone, and the like. All full-Sovereign States are competent to enter into commercial treaties, but it depends upon the special case whether half- and part-Sovereign States are likewise competent. Although competent to enter upon commercial treaties, a State may, by an international compact, be restricted in its freedom with regard to its commercial policy. Thus, according to articles 1 to 5 of the General Act of the Berlin Congo Conference of February 26, 1885, all the Powers which have possessions in the Congo district must grant complete freedom of commerce to all nations. Again, to give another example, France and Germany are by article 11 of the Peace of Frankfort of May 10, 1871, compelled to grant one another most-favoured-nation treatment in their commercial relations, in so far as favours which they grant to Great Britain, Belgium, Holland, Switzerland, Austria, and Russia are concerned.

The details of commercial treaties are for the most part purely technical and are, therefore, outside the scope of a general treatise on International Law. There are, however, two points of great importance which require discussion—namely, the meaning of coasting trade and of the most-favoured-nation clause.

§ 579. The meaning of the term coasting-trade[952] in commercial treaties must not be confounded with its meaning in International Law generally. The meaning of the term in International Law becomes apparent through its synonym cabotage—that is, navigation from cape to cape along the coast combined with trading between the ports of the coast concerned without going out into the Open Sea. Therefore, trade between Marseilles and Nice, between Calais and Havre, between London and Liverpool, and between Dublin and Belfast is coasting-trade, but trade between Marseilles and Havre, and between London and Dublin is not. It is a universally recognised rule[953] of International Law that every littoral State can exclude foreign merchantmen from the cabotage within its maritime belt. Cabotage is the contrast to the over-sea[954] carrying trade, and has nothing to do with the question of free trade from or to a port on the coast to or from a port abroad. This question is one of commercial policy, and International Law does not prevent a State from restricting to vessels of its subjects the export from or the import to its ports, or from allowing such export or import under certain conditions only.

There is no doubt that originally the meaning of coasting-trade in commercial treaties was identical with its meaning in International Law generally, but there is likewise no doubt that the practice of the States gives now a much more extended meaning to the term coasting-trade as used in commercial treaties. Thus France distinguishes between cabotage petit and grand; whereas petit cabotage is coasting-trade between ports in the same sea, grand cabotage is coasting-trade between a French port situated in the Atlantic Ocean and a French port situated in the Mediterranean, and—according to a statute of September 21, 1793—both grand and petit cabotage are exclusively reserved for French vessels. Thus, further, the United States of America has always considered trade between one of her ports in the Atlantic Ocean and one in the Pacific to be coasting-trade, and has exclusively reserved it for vessels of her own subjects; she considers such trade coasting-trade even when the carriage takes place not exclusively by sea around Cape Horn, but partly by sea and partly by land through the Isthmus of Panama. Great Britain has taken up a similar attitude. Section 2 of the Navigation Act of 1849 (12 & 13 Vict. c. 29) enacted "that no goods or passengers shall be carried coastwise from one part of the United Kingdom to another, or from the Isle of Man to the United Kingdom, except in British ships," and thereby declared trade between a port of England or Scotland to a port of Ireland or the Isle of Man to be coasting-trade exclusively reserved for British ships in spite of the fact that the Open Sea flows between these ports. And although the Navigation Act of 1849 is no longer in force, and this country now does admit foreign ships to its coasting-trade, it nevertheless still considers all trade between one port of the United Kingdom and another to be coasting-trade, as becomes apparent from Section 140 of the Customs Laws Consolidation Act of July 24, 1876 (39 & 40 Vict. c. 36). Again, Germany declared by a statute of May 22, 1881, coasting-trade to be trade between any two German ports, and reserved it for German vessels, although vessels of such States can be admitted as on their part admit German vessels to their own coasting-trade. Thus trade between Koenigsberg in the Baltic and Hamburg in the North Sea is coasting-trade.

These instances are sufficient to demonstrate that an extension of the original meaning of coasting-trade has really taken place and has found general recognition. A great many commercial treaties have been concluded between such countries as established that extension of meaning and others, and these commercial treaties no doubt make use of the term coasting-trade in this its extended meaning. It must, therefore, be maintained that the term coasting-trade or cabotage as used in commercial treaties has acquired the following meaning: Sea-trade between any two ports of the same country whether on the same coast or different coasts, provided always that the different coasts are all of them the coasts of one and the same country as a political and geographical unit in contradistinction to the coasts of Colonial dependencies of such country.

In spite of this established extension of the term coasting-trade, it did not include colonial trade until nearly the end of the nineteenth century.[955] Indeed, when Russia, by ukase of 1897, enacted that trade between any of her ports should be considered coasting trade and be reserved for Russian vessels, this did not comprise a further extension of the conception of coasting-trade. The reason is that Russia, although her territory extends over different parts of the globe, is a political and geographical unit, and there is one stretch of territory only between St. Petersburg and Vladivostock. But when, in 1898 and 1899, the United States of America declared trade between any of her ports and those of Porto Rico, the Philippines, and the Hawaiian Islands to be coasting-trade, and consequently reserved it exclusively for American vessels, the distinction between coasting-trade and over-sea or colonial trade fell to the ground. It is submitted that this American extension of the conception of coasting-trade as used in her commercial treaties before 1898 is inadmissible[956] and contains a violation of the treaty rights of the other contracting parties. Should these parties consent to the American extension of the meaning of coasting-trade, and should other countries follow the American lead and apply the term coasting-trade indiscriminately to trade along their coasts and to their colonial trade, the meaning of the term would then become trade between any two ports which are under the sovereignty of the same State. The distinction between coasting-trade and colonial trade would then become void, and the last trace of the synonymity between coasting-trade and cabotage would have disappeared.

§ 580. Most of the commercial treaties of the nineteenth century contain a stipulation which is characterised as the most-favoured-nation clause. The wording of this clause is by no means the same in all treaties, and its general form has therefore to be distinguished from several others which are more specialised in their wording. According to the most-favoured-nation clause in its general form, all favours which either contracting party has granted in the past or will grant in the future to any third State must be granted to the other party. But the real meaning of this clause in its general form has ever been controverted since the United States of America entered into the Family of Nations and began to conclude commercial treaties embodying the clause. Whereas in former times the clause was considered obviously to have the effect of causing all favours granted to any one State at once and unconditionally to accrue to all other States having most-favoured-nation treaties with the grantor, the United States contended that these favours could accrue to such of the other States only as fulfilled the same conditions under which these favours had been allowed to the grantee. The majority of the commercial treaties of the United States, therefore, do not contain the most-favoured-nation clause in its general form, but in what is called its conditional, qualified, or reciprocal, form. In this form it stipulates that all favours granted to third States shall accrue to the other party unconditionally, in case the favours have been allowed unconditionally to the grantee, but only under the same compensation, in case they have been granted conditionally. The United States, however, has always upheld the opinion, and the supreme Court of the United States has confirmed[957] this interpretation, that, even if a commercial treaty contains the clause in its general, and not in its qualified, form, it must always be interpreted as though it were worded in its qualified form.

Now nobody doubts that according to the qualified form of the clause a favour granted to any State can only accrue to other States having most-favoured-nation treaties with the grantor, provided they fulfil the same conditions and offer the same compensations as the grantee. Again, nobody doubts that, if the clause is worded in its so-called unconditional form stipulating the accrument of a favour to other States whether it was allowed to the grantee gratuitously or conditionally against compensation, all favours granted to any State accrue immediately and without condition to all the other States. However, as regards the clause in its general form, what might, broadly speaking, be called the European is confronted by the American interpretation. This American interpretation is, I believe, unjustifiable, although it is of importance to mention that two European writers of such authority as Martens (II. p. 225) and Westlake (I. p. 283) approve of it.

It has been suggested[958] that the controversy should be brought before the Hague Court of Arbitration, yet the United States will never consent to this. Those States which complain of the American interpretation had therefore better notify their commercial treaties with the United States and insert in new treaties the most-favoured-nation clause in such a form as puts matters beyond all doubt. So much is certain, a State that at present enters upon a commercial treaty with the United States comprising the clause in its general form cannot complain[959] of the American interpretation, which, whatever may be its merits, is now a matter of common knowledge.[960]

V

UNIONS CONCERNING COMMON NON-POLITICAL INTERESTS

Nys, II. pp. 264-270—Mérignhac, II. pp. 694-731—Descamps, "Les offices internationaux et leur avenir" (1894)—Moynier, "Les Bureaux internationaux des unions universelles" (1892)—Poinsard, "Les Unions et ententes internationales" (2nd ed. 1901)—Renault in R.G. III. (1896), pp. 14-26—Reinsch, "Public International Unions" (1911), and in A.J. I. pp. 579-623, and III. pp. 1-45.

§ 581. The development of international intercourse has called into existence innumerable treaties for the purpose of satisfying economic and other non-political interests of the several States. Each nation concludes treaties of commerce, of navigation, of extradition, and of many other kinds with most of the other nations, and tries in this way, more or less successfully, to foster its own interests. Many of these interests are of such a particular character and depend upon such individual circumstances and conditions that they can only be satisfied and fostered by special treaties from time to time concluded by each State with other States. Yet experience has shown that the several States have also many non-political interests in common which can better be satisfied and fostered by a general treaty between a great number of States than by special treaties singly concluded between the several parties. Therefore, since the second half of the nineteenth century, such general treaties have more and more come into being, and it is certain that their number will in time increase. Each of these treaties creates what is called a Union among the contracting parties, since these parties have united for the purpose of settling certain subjects in common. The number of States which are members of these Unions varies, of course, and whereas some of them will certainly become in time universal in the same way as the Universal Postal Union, others will never reach that stage. But all the treaties which have created these Unions are general treaties because a lesser or greater number of States are parties, and these treaties have created so-called Unions, although the term "Union" is not always made use of.[961]

§ 582. Whereas previously the States severally concluded treaties concerning postal and telegraphic arrangements, they entered into Unions for this purpose during the second part of the nineteenth century:—

(1) Twenty-one States entered on October 9, 1874, at Berne, into a general postal convention[962] for the purpose of creating a General Postal Union. This General turned into the Universal Postal Union through the Convention of Paris[963] of June 1, 1878, to which thirty States were parties. This convention has several times been revised by the congresses of the Union, which have to meet every five years. The last revision took place at the Congress of Rome, 1906, where, on May 26, a new Universal Postal Convention[964] was signed by all the members of the Family of Nations for themselves and their colonies and dependencies. This Union possesses an International Office seated at Berne.[965]

(2) A general telegraphic convention was concluded at Paris already on May 17, 1865, and in 1868 an International Telegraph Office[966] was instituted at Berne. In time more and more States joined, and the basis of the Union is now the Convention of St. Petersburg[967] of July 22, 1875, which has been amended several times, the last time at Lisbon on June 11, 1908. That the Union will one day become universal there is no doubt, but as yet, although called "Universal" Telegraphic Union, only about thirty States are members.

(3) Concerning the general treaty of March 14, 1884, for the protection of submarine telegraph cables,[968] see above, § 287.

(4) A general radio-telegraphic convention[969] was signed by twenty-seven States on November 3, 1906, at Berlin. This Union has an International Office at Berne which is combined with that of the Universal Telegraph Union.

§ 583. Two general conventions are in existence in the interest of transport and communication:—

(1) A general convention[970] was concluded on October 14, 1890, at Berne concerning railway transports and freights. The parties—namely, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Luxemburg, Russia, and Switzerland—form a Union for this purpose, although the term "Union" is not made use of. The Union possesses an International Office[971] at Berne, which issues the Zeitschrift für den internationalen Eisenbahn transport and the Bulletin des transports internationaux par chemins de fer. Denmark, Roumania, and Sweden acceded to this Union some time after its conclusion.

(2) A general convention concerning the International Circulation of Motor Vehicles[972] was concluded on October 11, 1909, at Paris. The original signatory Powers were:—Great Britain, Germany, Austria-Hungary, Belgium, Bulgaria, Spain, France, Greece, Italy, Monaco, Montenegro, Holland, Portugal, Roumania, Russia, Servia; but Greece, Montenegro, Portugal, and Servia have not yet ratified. Luxemburg, Sweden, and Switzerland acceded later on. To give effect to this convention in Great Britain, Parliament passed in 1909 the Motor Car (International Circulation) Act,[973] 9 Edw. VII. c. 37.

§ 584. On September 9, 1886, the Convention of Berne was signed for the purpose of creating an international Union for the Protection of Works of Art and Literature. The Union has an International Office[974] at Berne. An additional Act to the convention was signed at Paris on May 4, 1906. Since, however, the stipulations of these conventions did not prove quite adequate, the "Revised[975] Berne Convention" was signed at Berlin on November 13, 1908. The parties are Great Britain, Germany, Belgium, Denmark, Spain, France, Haiti, Italy, Japan, Liberia, Luxemburg, Monaco, Norway, Sweden, Switzerland, Tunis; but Denmark, France, Italy, Sweden, and Tunis have not yet ratified. Portugal acceded later. To give effect to the Convention of Berne of 1886, Parliament passed in 1886 the "Act to amend the Law respecting International and Colonial Copyright" (49 & 50 Vict. c. 33). This Act, however, was, in consequence of the "Revised Berne Convention" of Berlin of 1908, repealed by section 37 of the Copyright Act, 1911 (1 Geo. V. c. 00), and sections 30 and 31 of the latter Act now deal with International Copyright.