Volume Ii Part 1 (1/2)

International Law. A Treatise.

Volume II.

by La.s.sa Francis Oppenheim.

PREFACE

TO THE SECOND EDITION

The course of events since 1906, when the second volume of this work first made its appearance, and the results of further research have necessitated, as in the case of the first volume, the thorough revision of the text, the rewriting of many portions, and the discussion of a number of new topics. The additions to this volume are even more numerous than those to the first, with the consequence that, in spite of the typographical devices explained in the preface to the second edition of the first volume, the text of this volume has been increased by one hundred pages. The increase is, in some measure, due to the fact that the thirteen Conventions of the Second Hague Peace Conference, and, further, the Declaration of London, are fully discussed and expounded.

But the increase is also due to the fact that a number of other new topics have been discussed; I will only mention the questions whether enemy subjects have _persona standi in judicio_ (-- 100_a_), and whether trading with enemy subjects is permitted (-- 101).

The system of the work, with but occasional slight alterations in arrangement and the headings of the sections, remains the same. In those cases, however, in which a portion had to be entirely rewritten--as, for instance, that on Enemy Character, that on Commencement of War, and that on Unneutral Service--the arrangement of the topics differs from that in the first edition, and the headings of the sections also differ. Apart from many new sections, a whole chapter treating of the proposed International Prize Court has been added at the end of the volume.

Since some of the Conventions produced by the Second Peace Conference, and, further, the Declaration of London, have not yet been ratified, the task of the writer of a comprehensive treatise on International Law is very difficult: he must certainly not treat the rules in these unratified doc.u.ments as law, but, on the other hand, he must not ignore them. For this reason the right method seemed to be to give everywhere the law hitherto prevailing, and to give also the changes in the law which are proposed by these unratified doc.u.ments. I venture to hope that this method will enable the reader to form a judgment of his own with regard to the merits of the Declaration of London. I have not concealed my conviction that the ratification of this Declaration would mark great progress in the development of International Law, since it offers a common agreement upon a number of subjects concerning which there has been hitherto much discord both in theory and practice. But I have endeavoured to put the matter impartially before the reader, and I have taken special care to draw attention to very numerous points which have not been settled by the Declaration of London.

In revising and rewriting this volume I have remained true to the principle of impartiality, neither taking the part of any one nation, nor denouncing any other. The discredit which International Law concerning War and Neutrality suffers in the minds of certain sections of the public is largely due to the fact that many writers have not in the past approached the subject with that impartial and truly international spirit which is indispensable for its proper treatment.

Many friends of the book have asked that the second edition might, in the Appendix, offer an English translation of the French texts concerned. I was prepared to accede to their request, but had to abstain from doing so on account of the fact that the addition of a translation would have made the volume too bulky for convenience; the new Conventions of the Second Hague Peace Conference, the Declaration of London together with the Report of the Drafting Committee of the Naval Conference of London, the Naval Prize Bill of 1911, and the Geneva Convention Act of 1911, all of which necessarily had to be added, having increased the Appendix very considerably.

It has been the aim of my a.s.sistants and myself to make the quotations in this and the preceding volume as correct as possible. However, considering that there are many thousands of citations, it would be a miracle if there were not numerous mistakes and misprints in them, in spite of the great care which has been bestowed upon the matter. I shall be most grateful, therefore, if readers will kindly draw my attention to any inaccuracy they may notice.

My thanks are once more due to reviewers and readers who have drawn my attention to mistakes and misprints in the first edition; and I am again indebted to Miss B. M. Rutter and Mr. C. F. Pond for their valuable a.s.sistance in reading the proofs and in drawing up the Table of Cases and the alphabetical Index.

L. OPPENHEIM.

PART I

SETTLEMENT OF STATE DIFFERENCES

CHAPTER I

AMICABLE SETTLEMENT OF STATE DIFFERENCES

I

STATE DIFFERENCES AND THEIR AMICABLE SETTLEMENT IN GENERAL

Twiss, II. ---- 1-3--Ullmann, ---- 148-150--Bulmerincq in Holtzendorff, IV. pp. 5-12--Heffter, ---- 105-107--Rivier, II. -- 57--Bonfils, No. 930--Despagnet, No. 469--Pradier-Fodere, IV. Nos.

2580-2583--Calvo, III. ---- 1670-1671--Martens, II. ---- 101-102--Fiore, II. Nos. 1192-1198, and Code, No. 1246--Wagner, _Zur Lehre von den Streiterledigungsmitteln des Volkerrechts_ (1900.)

[Sidenote: Legal and political International Differences.]

-- 1. International differences can arise from a variety of grounds.

Between the extremes of a simple and comparatively unimportant act of discourtesy committed by one State against another, on the one hand, and, on the other, so gross an insult as must necessarily lead to war, there are many other grounds varying in nature and importance. State differences are correctly divided into legal and political. Legal differences arise from acts for which States have to bear responsibility, be it acts of their own or of their Parliaments, judicial and administrative officials, armed forces, or individuals living on their territory.[1] Political differences are the result of a conflict of political interests. But although this distinction is certainly theoretically correct and of practical importance, frequently in practice a sharp line cannot be drawn. For in many cases States either hide their political interests behind a claim for an alleged injury, or make a positive, but comparatively insignificant, injury a pretext for the carrying out of political ends. Nations which have been for years facing each other armed to the teeth, waiting for a convenient moment to engage in hostilities, are only too ready to obliterate the boundary line between legal and political differences. Between such nations a condition of continuous friction prevails which makes it difficult, if not impossible, in every case which arises to distinguish the legal from the political character of the difference.