International Law. A Treatise Volume I Part 66

[Sidenote: Negotiations by whom conducted.]

-- 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. Amba.s.sadors, as diplomatic agents of the first cla.s.s, 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]

[Footnote 835: See below, -- 495.]

[Footnote 836: See above, -- 365.]

[Footnote 837: Negotiations between armed forces of belligerents are regularly conducted by soldiers. See below, vol. II. ---- 220-240.]

[Sidenote: Form of Negotiation.]

-- 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]

[Footnote 838: See below, -- 483.]

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 Amba.s.sador in London with regard to the independence of the former Spanish colonies in South America, because this Amba.s.sador was not authorised to leave a copy of the communication at the British Foreign Office.[839]

[Footnote 839: As regards the language used during negotiation, see above, -- 359.]

[Sidenote: End and Effect of Negotiation.]

-- 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]

[Footnote 840: See below, ---- 491-554.]

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-Fodere, 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-Fodere, "Cours de droit diplomatique" (1881), vol. II. pp. 372-424--Zaleski, "Die volkerrechtliche Bedeutung der Congresse" (1874)--Nippold, "Die Fortbildung des Verfahrens in volkerrechtlichen Streitigkeiten"

(1907), pp. 480-526.

[Sidenote: Conception of Congresses and Conferences.]

-- 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.

[Footnote 841: See, for instance, Martens, I. -- 52; Fiore, II. ---- 1216-1224, and Code, No. 1231.]

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.

[Sidenote: Parties to Congresses and Conferences.]

-- 484. Congresses and conferences not being organised by customary or conventional International Law, no rules exist with regard to the parties of a congress or conference. Everything depends upon the purpose for which a congress or a conference meets, and upon the Power which invites other Powers to the meeting. If it is intended to settle certain differences, it is reasonable that all the States concerned should be represented, for a Power which is not represented need not consent to the resolutions of the congress. If the creation of new rules of International Law is intended, at least all full-Sovereign members of the Family of Nations ought to be represented. To the First Peace Conference at the Hague, nevertheless, only the majority of States were invited to send representatives, the South American Republics not being invited at all. But to the Second Peace Conference of 1907 forty-seven States were invited, although only forty-four sent representatives.

Costa Rica, Honduras, and Abyssinia were invited, but did not send any delegates.

It is frequently maintained that only full-Sovereign States can be parties to congresses and conferences. This is certainly not correct, as here, too, everything depends upon the merits of the special case. As a rule, full-Sovereign States only are parties, but there are exceptions.

Thus, Bulgaria, at the time a va.s.sal under Turkish suzerainty, was a party to the First as well as to the Second Hague Peace Conference, although without a vote. There is no reason to deny the rule that half- and part-Sovereign States can be parties to congresses and conferences in so far as they are able to negotiate internationally.[842] Such States are, in fact, frequently asked to send representatives to such congresses and conferences as meet for non-political matters.

[Footnote 842: See above, -- 478.]

But no State can be a party which has not been invited, or admitted at its own request. If a Power thinks it fitting that a congress or conference should meet, it invites such other Powers as it pleases. The invited Powers may accept under the condition that certain other Powers should or should not be invited or admitted. Those Powers which have accepted the invitation become parties if they send representatives.

Each party may send several representatives, but they have only one vote, given by the senior representative for himself and his subordinates.

[Sidenote: Procedure at Congresses and Conferences.]

-- 485. After the place and time of meeting have been arranged--such place may be neutralised for the purpose of securing the independence of the deliberations and discussions--the representatives meet and const.i.tute themselves by exchanging their commissions and electing a president and other officers. It is usual, but not obligatory,[843] for the Secretary for Foreign Affairs of the State within which the congress meets to be elected president. If the difficulty of the questions on the programme makes it advisable, special committees are appointed for the purpose of preparing the matter for discussion by the body of the congress. In such discussion all representatives can take part. After the discussion follows the voting. The motion must be carried unanimously to consummate the task of the congress, for the vote of the majority has no power whatever in regard to the dissenting parties. But it is possible that the majority considers the motion binding for its members. A protocol is to be kept of all the discussions and the voting.

If the discussions and votings lead to a final result upon which the parties agree, all the points agreed upon are drawn up in an Act, which is signed by the representatives and which is called the Final Act or the General Act of the congress or conference. A party can make a declaration or a reservation in signing the Act for the purpose of excluding a certain interpretation of the Act in the future. And the Act may expressly stipulate freedom for States which were not parties to accede to it in future.

[Footnote 843: Thus at both Hague Peace Conferences the first Russian delegate was elected president.]

III

TRANSACTIONS BESIDES NEGOTIATION

Bluntschli, -- 84--Hartmann, -- 91; Gareis, -- 77--Liszt, -- 20.

[Sidenote: Different kinds of Transaction.]

-- 486. International transaction is the term for every act on the part of a State in its intercourse with other States. Besides negotiation, which has been discussed above in ---- 477-482, there are eleven other kinds of international transactions which are of legal importance--namely, declaration, notification, protest, renunciation, recognition, intervention, retorsion, reprisals, pacific blockade, war, and subjugation. Recognition has already been discussed above in ---- 71-75, as has also intervention in ---- 134-138, and, further, subjugation in ---- 236-241. Retorsion, reprisals, pacific blockade, and war will be treated in the second volume of this work. There are, therefore, here to be discussed only the remaining four transactions--namely, declaration, notification, protest, and renunciation.

[Sidenote: Declaration.]

-- 487. The term "declaration" is used in three different meanings. It is, first, sometimes used as the t.i.tle of a body of stipulations of a treaty according to which the parties engage themselves to pursue in future a certain line of conduct. The Declaration of Paris, 1856, the Declaration of St. Petersburg, 1868, and the Declaration of London, 1909, are instances of this. Declarations of this kind differ in no respect from treaties.[844] One speaks, secondly, of declarations when States communicate to other States or _urbi et orbi_ an explanation and justification of a line of conduct pursued by them in the past, or an explanation of views and intentions concerning certain matters.

Declarations of this kind may be very important, but they hardly comprise transactions out of which rights and duties of other States follow. But there is a third kind of declarations out of which rights and duties do follow for other States, and it is this kind which comprises a specific international transaction, although the different declarations belonging to this group are by no means of a uniform character. Declarations of this kind are declarations of war, declarations on the part of belligerents concerning the goods they will condemn as contraband, declarations at the outbreak of war on the part of third States that they will remain neutral, and others.

[Footnote 844: See below, -- 508, where is mentioned the attempt of the British Foreign Office to give to the term "declaration" a specific meaning.]

[Sidenote: Notification.]

-- 488. Notification is the technical term for the communication to other States of the knowledge of certain facts and events of legal importance.

But a distinction must be drawn between obligatory and merely usual notification.

Notification has of late been stipulated in several cases to be obligatory. Thus, according to article 34 of the General Act of the Berlin Congo Conference of 1885, notification of new occupations and the like on the African coast is obligatory. Thus, further, according to article 84 of the Hague Convention for the peaceful adjustment of international differences, in case a number of States are parties to a treaty and two of the parties are at variance concerning the interpretation of such treaty and agree to have the difference settled by arbitration, they have to notify this agreement to all other parties to the treaty. Again, according to article 2 of the Hague Convention concerning the Commencement of Hostilities, 1907, the outbreak of war must be notified to the neutral Powers, and so must the declaration of a blockade,[845] according to article 11 of the Declaration of London, 1909.

[Footnote 845: See also Declaration of London, articles 11 (2), 16, 23, 25, and 26.]

Apart from such cases in which notification is stipulated as obligatory, it is in principle not obligatory, although in fact it frequently takes place because States cannot be considered subject to certain duties without the knowledge of the facts and events which give rise to these duties. Thus it is usual to notify to other States changes in the headship and in the form of government of a State, the establishment of a Federal State, an annexation after conquest, the appointment of a new Secretary for Foreign Affairs, and the like.

[Sidenote: Protest.]

-- 489. Protest is a formal communication on the part of a State to another that it objects to an act performed or contemplated by the latter. A protest serves the purpose of preservation of rights, or of making it known that the protesting State does not acquiesce in and does not recognise certain acts. A protest can be lodged with another State concerning acts of the latter which have been notified to the former or which have otherwise become known. On the other hand, if a State acquires knowledge of an act which it considers internationally illegal and against its rights, and nevertheless does not protest, such att.i.tude implies renunciation of such rights, provided a protest would have been necessary to preserve a claim. It may further happen that a State at first protests, but afterwards either expressly[846] or tacitly acquiesces in the act. And it must be emphasised that under certain circ.u.mstances and conditions a simple protest on the part of a State without further action is not in itself sufficient to preserve the rights in behalf of which the protest was made.[847]