§ 568b. The Declaration of London[933] of February 26, 1909, concerning the Laws of Naval War, is a pure law-making treaty of the greatest importance. All the ten Powers represented at the Conference of London which produced this Declaration signed[934] it—namely, Great Britain, Germany, the United States of America, Austria-Hungary, Spain, France, Italy, Japan, Holland, and Russia, but it is not yet ratified.

II ALLIANCES

Grotius, II. c. 15—Vattel, III. §§ 78-102—Twiss, I. § 246—Taylor, §§ 347-349—Wheaton, §§ 278-285—Bluntschli, §§ 446-449—Heffter, § 92—Geffcken in Holtzendorff, III. pp. 115-139—Ullmann, § 82—Bonfils, Nos. 871-881—Despagnet, No. 459—Mérignhac, II. p. 683—Nys, III. pp. 554-557—Pradier-Fodéré, II. Nos. 934-967—Rivier, II. pp. 111-116—Calvo, III. §§ 1587-1588—Fiore, II. No. 1094, and Code, Nos. 893-899—Martens, I. § 113—Rolin-Jaequemyns in R.I. XX. (1888), pp. 5-35—Erich, "Ueber Allianzen und Allianzverhältnisse nach heutigem Völkerrecht" (1907).

§ 569. Alliances in the strict sense of the term are treaties of union between two or more States for the purpose of defending each other against an attack in war, or of jointly attacking third States, or for both purposes. The term "alliance" is, however, often made use of in a wider sense, and it comprises in such cases treaties of union for various purposes. Thus, the so-called "Holy Alliance," concluded in 1815 between the Emperors of Austria and Russia and the King of Prussia, and afterwards joined by almost all of the Sovereigns of Europe, was a union for such vague purposes that it cannot be called an alliance in the strict sense of the term.

History relates innumerable alliances between the several States. They have always played, and still play, an important part in politics. At the present time the triple alliance between Germany, Austria, and Italy since 1879 and 1882, the alliance between Russia and France since 1899, and that between Great Britain and Japan since 1902, renewed in 1905 and 1911, are illustrative examples.[935]

§ 570. Subjects of alliances are said to be full-Sovereign States only. But the fact cannot be denied that alliances have been concluded by States under suzerainty. Thus, the convention of April 16, 1877, between Roumania, which was then under Turkish suzerainty, and Russia, concerning the passage of Russian troops through Roumanian territory in case of war with Turkey, was practically a treaty of alliance.[936] Thus, further, the former South African Republic, although, at any rate according to the views of the British Government, a half-Sovereign State under British suzerainty, concluded an alliance with the former Orange Free State by treaty of March 17, 1897.[937]

A neutralised State can be the subject of an alliance for the purpose of defence, whereas the entrance into an offensive alliance on the part of such State would involve a breach of its neutrality.

§ 571. As already mentioned, an alliance may be offensive or defensive, or both. All three kinds may be either general alliances, in which case the allies are united against any possible enemy whatever, or particular alliances against one or more individual enemies. Alliances, further, may be either permanent or temporary, and in the latter case they expire with the period of time for which they were concluded. As regards offensive alliances, it must be emphasised that they are valid only when their object is not immoral.[938]

§ 572. Alliances may contain all sorts of conditions. The most important are the conditions regarding the assistance to be rendered. It may be that assistance is to be rendered with the whole or a limited part of the military and naval forces of the allies, or with the whole or a limited part of their military or with the whole or a limited part of their naval forces only. Assistance may, further, be rendered in money only, so that one of the allies is fighting with his forces while the other supplies a certain sum of money for their maintenance. A treaty of alliance of such a kind must not be confounded with a simple treaty of subsidy. If two States enter into a convention that one of the parties shall furnish the other permanently in time of peace and war with a limited number of troops in return for a certain annual payment, such convention is not an alliance, but a treaty of subsidy only. But if two States enter into a convention that in case of war one of the parties shall furnish the other with a limited number of troops, be it in return for payment or not, such convention really constitutes an alliance. For every convention concluded for the purpose of lending succour in time of war implies an alliance. It is for this reason that the above-mentioned[939] treaty of 1877 between Russia and Roumania concerning the passage of Russian troops through Roumanian territory in case of war against Turkey was really a treaty of alliance.

§ 573. Casus fœderis is the event upon the occurrence of which it becomes the duty of one of the allies to render the promised assistance to the other. Thus in case of a defensive alliance the casus fœderis occurs when war is declared or commenced against one of the allies. Treaties of alliance very often define precisely the event which shall be the casus fœderis, and then the latter is less exposed to controversy. But, on the other hand, there have been many alliances concluded without such specialisation, and, consequently, disputes have arisen later between the parties as to the casus fœderis.

That the casus fœderis is not influenced by the fact that a State, subsequent to entering into an alliance, concludes a treaty of general arbitration with a third State, has been pointed out above, § 522.

III TREATIES OF GUARANTEE AND OF PROTECTION

Vattel, II. §§ 235-239—Hall, § 113—Phillimore, II. §§ 56-63—Twiss, I. § 249—Halleck, I. p. 285—Taylor, §§ 350-353—Wheaton, § 278—Bluntschli, §§ 430-439—Heffter, § 97—Geffcken in Holtzendorff, III. pp. 85-112—Liszt, § 22—Ullmann, § 83—Fiore, Code, Nos. 787-791—Bonfils, Nos. 882-893—Despagnet, No. 461—Mérignhac, II. p. 681—Nys, III. pp. 36-41—Pradier-Fodéré, II. Nos. 969-1020—Rivier, II. pp. 97-105—Calvo, III. §§ 1584-1585—Martens, I. § 115—Neyron, "Essai historique et politique sur les garanties" (1779)—Milovanovitch, "Des traités de garantie en droit international" (1888)—Erich, "Ueber Allianzen und Allianzverhältnisse nach heutigem Völkerrecht" (1907)—Quabbe, "Die völkerrechtliche Garantie" (1911).

§ 574. Treaties of guarantee are conventions by which one of the parties engages to do what is in its power to secure a certain object to the other party. Guarantee treaties may be mutual or unilateral. They may be concluded by two States only, or by a number of States jointly, and in the latter case the single guarantors may give their guarantee severally or collectively or both. And the guarantee may be for a certain period of time only or permanent.

The possible objects of guarantee treaties are numerous.[940] It suffices to give the following chief examples: the performance of a particular act on the part of a certain State, as the discharge of a debt or the cession of a territory; certain rights of a State; the undisturbed possession of the whole or a particular part of the territory; a particular form of Constitution; a certain status, as permanent neutrality[941] or independence[942] or integrity[943]; a particular dynastic succession; the fulfilment of a treaty concluded by a third State.

§ 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.