International Law. A Treatise Volume I Part 73

[Sidenote: Rules of Interpretation which recommend themselves.]

-- 554. It is of importance to enumerate some rules of interpretation[911] which recommend themselves on account of their suitability.

[Footnote 911: The whole matter of interpretation of treaties is dealt with in an admirable way by Phillimore, II. ---- 64-95; see also Moore, V.

-- 763, and Wharton, II. -- 133.]

(1) All treaties must be interpreted according to their reasonable in contradistinction to their literal sense. An excellent example ill.u.s.trating this rule is the following, which is quoted by several writers:--In the interest of Great Britain the Treaty of Peace of Utrecht of 1713 stipulated in its article 9 that the port and the fortifications of Dunkirk should be destroyed and never be rebuilt.

France complied with this stipulation, but at the same time began building an even larger port at Mardyck, a league off Dunkirk. Great Britain protested on the ground that France in so acting was violating the reasonable, although not the literal, sense of the Peace of Utrecht, and France in the end recognised this interpretation and discontinued the building of the new port.

(2) The terms used in a treaty must be interpreted according to their usual meaning in the language of every-day life, provided they are not expressly used in a certain technical meaning or another meaning is not apparent from the context.

(3) It is taken for granted that the contracting parties intend something reasonable, something adequate to the purpose of the treaty, and something not inconsistent with generally recognised principles of International Law nor with previous treaty obligations towards third States. If, therefore, the meaning of a stipulation is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable, the adequate meaning to the meaning not adequate for the purpose of the treaty, the consistent meaning to the meaning inconsistent with generally recognised principles of International Law and with previous treaty obligations towards third States.

(4) The principle _in dubio mitius_ must be applied in interpreting treaties. If, therefore, the meaning of a stipulation is ambiguous, such meaning is to be preferred as is less onerous for the obliged party, or as interferes less with the parties' territorial and personal supremacy, or as contains less general restrictions upon the parties.

(5) Previous treaties between the same parties, and treaties between one of the parties and third parties, may be alluded to for the purpose of clearing up the meaning of a stipulation.

(6) If there is a discrepancy between the clear meaning of a stipulation, on the one hand, and, on the other, the intentions of one of the parties declared during the negotiations preceding the signing of a treaty, the decision must depend on the merits of the special case.

If, for instance, the discrepancy was produced through a mere clerical error or by some other kind of mistake, it is obvious that an interpretation is necessary in accordance with the real intentions of the contracting parties.

(7) In case of a discrepancy between the clear meaning of a stipulation, on the one hand, and, on the other, the intentions of all the parties unanimously declared during the negotiations preceding the signing of the treaty, the meaning which corresponds to the real intentions of the parties must prevail over the meaning of the text. If, therefore--as in the case of the Declaration of London of 1909--the Report of the Drafting Committee contains certain interpretations and is unanimously accepted as authoritative by all the negotiators previous to the signing of the treaty, their interpretations must prevail.

(8) If two meanings of a stipulation are admissible according to the text of a treaty, such meaning is to prevail as the party proposing the stipulation knew at the time to be the meaning preferred by the party accepting it.

(9) If it is a matter of common knowledge that a State upholds a meaning which is different from the generally prevailing meaning of a term, and if nevertheless another State enters into a treaty with the former in which such term is made use of, such meaning must prevail as is upheld by the former. If, for instance, States conclude commercial treaties with the United States of America in which the most-favoured-nation clause[912] occurs, the particular meaning which the United States attribute to this clause must prevail.

[Footnote 912: See below, -- 580.]

(10) If the meaning of a stipulation is ambiguous and one of the contracting parties, at a time before a case arises for the application of the stipulation, makes known what meaning it attributes to the stipulation, the other party or parties cannot, when a case for the application of the stipulation occurs, insist upon a different meaning.

They ought to have previously protested and taken the necessary steps to secure an authentic interpretation of the ambiguous stipulation. Thus, when in 1911 it became obvious that Germany and other continental States attributed to article 23(_h_) of the Hague Regulations respecting the Laws and Usages of War on Land a meaning different from the one preferred by Great Britain, the British Foreign Office made the British interpretation of this article known.

(11) It is to be taken for granted that the parties intend the stipulations of a treaty to have a certain effect and not to be meaningless. Therefore, such interpretation is not admissible as would make a stipulation meaningless or inefficient.

(12) All treaties must be interpreted so as to exclude fraud and so as to make their operation consistent with good faith.

(13) The rules commonly applied by the Courts as regards the interpretation and construction of Munic.i.p.al Laws are in so far only applicable to the interpretation and construction of treaties, and in especial of law-making treaties, as they are general rules of jurisprudence. If, however, they are particular rules, sanctioned only by the Munic.i.p.al Law or by the practice of the Courts of a particular country, they may not be applied.

(14) If a treaty is concluded in two languages, for instance, a treaty between Great Britain and France in English and French, and if there is a discrepancy between the meaning of the two different texts, each party is only bound by the text of its own language. But a party cannot claim any advantage from the text of the language of the other party.

CHAPTER III

IMPORTANT GROUPS OF TREATIES

I

IMPORTANT LAW-MAKING TREATIES

[Sidenote: Important Law-making Treaties a product of the Nineteenth Century.]

-- 555. Law-making treaties[913] have been concluded ever since International Law came into existence. It was not until the nineteenth century, however, that such law-making treaties existed as are of world-wide importance. Although at the Congress at Munster and Osnabruck all the then existing European Powers, with the exception of Great Britain, Russia, and Poland, were represented, the Westphalian Peace of 1648, to which France, Sweden, and the States of the German Empire were parties, and which recognised the independence of Switzerland and the Netherlands, on the one hand, and, on the other, the practical sovereignty of the then existing 355 States of the German Empire, was not of world-wide importance, in spite of the fact that it contains various law-making stipulations. And the same may be said with regard to all other treaties of peace between 1648 and 1815. The first law-making treaty of world-wide importance was the Final Act of the Vienna Congress, 1815, and the last, as yet, is the Declaration of London of 1909. But it must be particularly noted that not all of these are _pure_ law-making treaties, since many contain other stipulations besides those which are law-making.

[Footnote 913: Concerning the conception of law-making treaties, see above, ---- 18 and 492.]

[Sidenote: Final Act of the Vienna Congress.]

-- 556. The Final Act of the Vienna Congress,[914] signed on June 9, 1815, by Great Britain, Austria, France, Portugal, Prussia, Russia, Spain, and Sweden-Norway, comprises law-making stipulations of world-wide importance concerning four points--namely, first, the perpetual neutralisation of Switzerland (article 118, No. 11); secondly, free navigation on so-called international rivers (articles 108-117); thirdly, the abolition of the negro slave trade (article 118, No. 15); fourthly, the different cla.s.ses of diplomatic envoys (article 118, No.

16).

[Footnote 914: Martens, N.R. II. p. 379. See Angeberg, "Le congres de Vienne et les traites de 1815" (4 vols., 1863).]

[Sidenote: Protocol of the Congress of Aix-la-Chapelle.]

-- 557. The Protocol of November 21 of the Congress of Aix-la-Chapelle,[915] 1818, signed by Great Britain, Austria, France, Prussia, and Russia, contains the important law-making stipulation concerning the establishment of a fourth cla.s.s of diplomatic envoys, the so-called "Ministers Resident," to rank before the Charges d'Affaires.

[Footnote 915: Martens, N.R. IV. p. 648. See Angeberg, op. cit.]

[Sidenote: Treaty of London of 1831.]

-- 558. The Treaty of London[916] of November 15, 1831, signed by Great Britain, Austria, France, Prussia, and Russia, comprises in its article 7 the important law-making stipulation concerning the perpetual neutralisation of Belgium.

[Footnote 916: Martens, N.R. XI. p. 390. See Descamps, "La neutralite de la Belgique" (1902).]

[Sidenote: Declaration of Paris.]

-- 559. The Declaration of Paris[917] of April 13, 1856, signed by Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, is a pure law-making treaty of the greatest importance, stipulating four rules with regard to sea warfare--namely, that privateering is abolished; that the neutral flag covers enemy goods with the exception of contraband of war; that neutral goods, contraband excepted, cannot be confiscated even when sailing under the enemy flag; that a blockade must be effective to be binding.

[Footnote 917: Martens, N.R.G. XV. p. 767.]

Through accession during 1856, the following other States have become parties to this treaty: Argentina, Belgium, Brazil, Chili, Denmark, Ecuador, Greece, Guatemala, Hayti, Holland, Peru, Portugal, Sweden-Norway, and Switzerland. j.a.pan acceded in 1886, Spain and Mexico in 1907.

[Sidenote: Geneva Convention.]

-- 560. The Geneva Convention[918] of August 22, 1864, and that of July 6, 1906, are pure law-making treaties for the amelioration of the conditions of the wounded of armies in the field. The Geneva Convention of 1864 was originally signed only by Switzerland, Baden, Belgium, Denmark, France, Holland, Italy, Prussia, and Spain, but in time all other civilised States have acceded except Costa Rica, Lichtenstein, and Monaco. A treaty[919] containing articles additional to the Geneva Convention of 1864 was signed at Geneva on October 20, 1868, but was not ratified. A better fate was in store for the Geneva Convention[920] of 1906, which was signed by the delegates of thirty-five States, many of which have already granted ratification. Colombia, Costa Rica, Cuba, Nicaragua, Turkey, and Venezuela have already acceded. It is of importance to emphasise that the Convention of 1864 is not entirely replaced by the Convention of 1906, in so far as the former remains in force between those Powers which are parties to it without being parties to the latter. And it must be remembered that the Final Act of the First as well as of the Second Peace Conference contains a convention for the adaptation to sea warfare of the principles of the Geneva Convention.

[Footnote 918: Martens, N.R.G. XVIII. p. 607. See Lueder, "Die Genfer Convention" (1876), and Munzel, "Untersuchungen uber die Genfer Convention" (1901).]

[Footnote 919: Martens, N.R.G. XVIII. p. 612.]

[Footnote 920: Martens, N.R.G. 3rd Ser. II. p. 323.]

[Sidenote: Treaty of London of 1867.]

-- 561. The Treaty of London[921] of May 11, 1867, signed by Great Britain, Austria, Belgium, France, Holland, Italy, Prussia, and Russia, comprises in its article 2 the important law-making stipulation concerning the perpetual neutralisation of Luxemburg.

[Footnote 921: Martens, N.R.G. XVIII. p. 445. See Wampach, "Le Luxembourg Neutre" (1900).]