Volume I Part 67 (1/2)

[Footnote 846: Thus by section 2 of the Declaration concerning Siam, Madagascar, and the New Hebrides, which is embodied in the Anglo-French Agreement of April 8, 1904, Great Britain withdrew the protest which she had raised against the introduction of the Customs tariff established at Madagascar after the annexation to France.]

[Footnote 847: See below, -- 539, concerning the withdrawal of Russia from article 59 of the Treaty of Berlin, 1878, stipulating the freedom of the port of Batoum.]

[Sidenote: Renunciation.]

-- 490. Renunciation is the deliberate abandonment of rights. It can be given _expressis verbis_ or tacitly. If, for instance, a State by occupation takes possession of an island which has previously been occupied by another State,[848] the latter tacitly renounces its rights by not protesting as soon as it receives knowledge of the fact.

Renunciation plays a prominent part in the amicable settlement of differences between States, either one or both parties frequently renouncing their claims for the purpose of coming to an agreement. But it must be specially observed that mere silence on the part of a State does not imply renunciation; this occurs only when a State remains silent, although a protest is necessary to preserve a claim.

[Footnote 848: See above, -- 247.]

CHAPTER II

TREATIES

I

CHARACTER AND FUNCTION OF TREATIES

Vattel, II. ---- 152, 153, 157, 163--Hall, -- 107--Phillimore, II. -- 44--Twiss, I. ---- 224-233--Taylor, ---- 341-342--Bluntschli, -- 402--Heffter, -- 81--Despagnet, Nos. 435-436--Pradier-Fodere, II.

Nos. 888-919--Rivier, II. pp. 33-40--Nys, III. pp. 18-20 and 43-48--Calvo, III. ---- 1567-1584--Fiore, II. Nos. 976-982--Martens, I. -- 103--Bergbohm, ”Staatsvertrage und Gesetze als Quellen des Volkerrechts” (1877)--Jellinek, ”Die rechtliche Natur der Staatenvertrage” (1880)--Laghi, ”Teoria dei trattati intern.a.z.ionali” (1882)--Buonamici, ”Dei trattati intern.a.z.ionali”

(1888)--Nippold, ”Der volkerrechtliche Vertrag” (1894)--Triepel, ”Volkerrecht und Landesrecht” (1899), pp. 27-90.

[Sidenote: Conception of Treaties.]

-- 491. International treaties are conventions or contracts between two or more States concerning various matters of interest. Even before a Law of Nations in the modern sense of the term was in existence, treaties used to be concluded between States. And although in those times treaties were neither based on nor were themselves a cause of an International Law, they were nevertheless considered sacred and binding on account of religious and moral sentiment. However, since the manifold intercourse of modern times did not then exist between the different States, treaties did not discharge such all-important functions in the life of humanity as they do now.

[Sidenote: Different kinds of Treaties.]

-- 492. These important functions are manifest if attention is given to the variety of international treaties which exist nowadays and are day by day concluded for innumerable purposes. In regard to State property, treaties are concluded of cession, of boundary, and many others.

Alliances, treaties of protection, of guarantee, of neutrality, and of peace are concluded for political purposes. Various purposes are served by consular treaties, commercial[849] treaties, treaties in regard to the post, telegraphs, and railways, treaties of copyright and the like, of jurisdiction, of extradition, monetary treaties, treaties in regard to measures and weights, to rates, taxes, and custom-house duties, treaties on the matter of sanitation with respect to epidemics, treaties in the interest of industrial labourers, and treaties with regard to agriculture and industry. Again, various purposes are served by treaties concerning warfare, mediation, arbitration, and so on.

[Footnote 849: See below, ---- 578-580.]

I do not intend to discuss the question of cla.s.sification of the different kinds of treaties, for hitherto all attempts[850] at such cla.s.sification have failed. But there is one distinction to be made which is of the greatest importance and according to which the whole body of treaties is to be divided into two cla.s.ses. For treaties may, on the one hand, be concluded for the purpose of confirming, defining, or abolis.h.i.+ng existing customary rules, and of establis.h.i.+ng new rules for the Law of Nations. Treaties of this kind ought to be termed _law-making_ treaties. On the other hand, treaties may be concluded for all kinds of other purposes. Law-making treaties as a source of rules of International Law have been discussed above (-- 18); the most important of these treaties will be considered below (---- 556-568_b_).

[Footnote 850: Since the time of Grotius the science of the Law of Nations has not ceased attempting a satisfactory cla.s.sification of the different kinds of treaties. See Heffter, ---- 88-91; Bluntschli, ---- 442-445; Martens, I. -- 113; Ullmann, -- 82; Wheaton, -- 268 (following Vattel, II. -- 169); Rivier, II. pp. 106-118; Westlake, I. p. 283, and many others.]

[Sidenote: Binding Force of Treaties.]

-- 493. The question as to the reason of the binding force of international treaties always was, and still is, very much disputed.

That all those publicists who deny the legal character of the Law of Nations deny likewise a legally binding force in international treaties is obvious. But even among those who acknowledge the legal character of International Law, unanimity by no means exists concerning this binding force of treaties. The question is all the more important as everybody knows that treaties are sometimes broken, rightly according to the opinion of the one party, and wrongly according to the opinion of the other. Many publicists find the binding force of treaties in the Law of Nature, others in religious and moral principles, others[851] again in the self-restraint exercised by States in becoming a party to a treaty.

Some writers[852] a.s.sert that it is the contracting parties' own will which gives binding force to their treaties, and others[853] teach that such binding force is to be found _im Rechtsbewusstsein der Menschheit_--that is, in the idea of right innate in man. I believe that the question can satisfactorily be dealt with only by dividing it into several different questions and by answering those questions _seriatim_.

[Footnote 851: So Hall, -- 107; Jellinek, ”Staatenvertrage,” p. 31; Nippold, -- 11.]

[Footnote 852: So Triepel, ”Volkerrecht und Landesrecht” (1899), p. 82.]

[Footnote 853: So Bluntschli, -- 410.]