International Law. A Treatise Volume I Part 77

[Sidenote: Meaning of most-favoured-nation Clause.]

-- 580. Most of the commercial treaties of the nineteenth century contain a stipulation which is characterised as the most-favoured-nation clause.

The wording of this clause is by no means the same in all treaties, and its general form has therefore to be distinguished from several others which are more specialised in their wording. According to the most-favoured-nation clause in its general form, all favours which either contracting party has granted in the past or will grant in the future to any third State must be granted to the other party. But the real meaning of this clause in its general form has ever been controverted since the United States of America entered into the Family of Nations and began to conclude commercial treaties embodying the clause. Whereas in former times the clause was considered obviously to have the effect of causing all favours granted to any one State _at once and unconditionally_ to accrue to all other States having most-favoured-nation treaties with the grantor, the United States contended that these favours could accrue to such of the other States only as _fulfilled the same conditions under which these favours had been allowed to the grantee_. The majority of the commercial treaties of the United States, therefore, do not contain the most-favoured-nation clause in its general form, but in what is called its conditional, qualified, or reciprocal, form. In this form it stipulates that all favours granted to third States shall accrue to the other party unconditionally, in case the favours have been allowed unconditionally to the grantee, but only under the same compensation, in case they have been granted conditionally. The United States, however, has always upheld the opinion, and the supreme Court of the United States has confirmed[957] this interpretation, that, even if a commercial treaty contains the clause in its general, and not in its qualified, form, it must always be interpreted as though it were worded in its qualified form.

[Footnote 957: See Bartram _v._ Robertson, 122 United States 116, and Whitney _v._ Robertson, 124 United States 190.]

Now n.o.body doubts that according to the qualified form of the clause a favour granted to any State can only accrue to other States having most-favoured-nation treaties with the grantor, provided they fulfil the same conditions and offer the same compensations as the grantee. Again, n.o.body doubts that, if the clause is worded in its so-called unconditional form stipulating the accrument of a favour to other States whether it was allowed to the grantee gratuitously or conditionally against compensation, all favours granted to any State accrue immediately and without condition to all the other States. However, as regards the clause in its general form, what might, broadly speaking, be called the European is confronted by the American interpretation. This American interpretation is, I believe, unjustifiable, although it is of importance to mention that two European writers of such authority as Martens (II. p. 225) and Westlake (I. p. 283) approve of it.

It has been suggested[958] that the controversy should be brought before the Hague Court of Arbitration, yet the United States will never consent to this. Those States which complain of the American interpretation had therefore better notify their commercial treaties with the United States and insert in new treaties the most-favoured-nation clause in such a form as puts matters beyond all doubt. So much is certain, a State that at present enters upon a commercial treaty with the United States comprising the clause in its general form cannot complain[959] of the American interpretation, which, whatever may be its merits, is now a matter of common knowledge.[960]

[Footnote 958: See Barclay, op. cit. pp. 142 and 159.]

[Footnote 959: See above, -- 554, No. 9.]

[Footnote 960: It is not possible in a general treatise on International Law to enter into the details of the history, the different forms, the application, and the interpretation of the most-favoured-nation clause.

Readers must be referred for further information to the works and articles of Calwer, Herod, Glier, Cavaretta, Visser, Melle, and others quoted above before -- 578. See also Moore, V. ---- 765-769.]

V

UNIONS CONCERNING COMMON NON-POLITICAL INTERESTS

Nys, II. pp. 264-270--Merignhac, II. pp. 694-731--Descamps, "Les offices internationaux et leur avenir" (1894)--Moynier, "Les Bureaux internationaux des unions universelles" (1892)--Poinsard, "Les Unions et ententes internationales" (2nd ed. 1901)--Renault in R.G. III. (1896), pp. 14-26--Reinsch, "Public International Unions" (1911), and in A.J. I. pp. 579-623, and III. pp. 1-45.

[Sidenote: Object of the Unions.]

-- 581. The development of international intercourse has called into existence innumerable treaties for the purpose of satisfying economic and other non-political interests of the several States. Each nation concludes treaties of commerce, of navigation, of extradition, and of many other kinds with most of the other nations, and tries in this way, more or less successfully, to foster its own interests. Many of these interests are of such a particular character and depend upon such individual circ.u.mstances and conditions that they can only be satisfied and fostered by special treaties from time to time concluded by each State with other States. Yet experience has shown that the several States have also many non-political interests in common which can better be satisfied and fostered by a general treaty between a great number of States than by special treaties singly concluded between the several parties. Therefore, since the second half of the nineteenth century, such general treaties have more and more come into being, and it is certain that their number will in time increase. Each of these treaties creates what is called a Union among the contracting parties, since these parties have united for the purpose of settling certain subjects in common. The number of States which are members of these Unions varies, of course, and whereas some of them will certainly become in time universal in the same way as the Universal Postal Union, others will never reach that stage. But all the treaties which have created these Unions are general treaties because a lesser or greater number of States are parties, and these treaties have created so-called Unions, although the term "Union" is not always made use of.[961]

[Footnote 961: A general treatise on Public International Law cannot attempt to go into the details of these Unions; it is really a matter for monographs or for a treatise on International Administrative Law, such as Neumayer's "Internationales Verwaltungsrecht," which is to comprise three volumes, and of which the first volume appeared in 1910.

See also Reinsch, "Public International Unions" (1911).]

[Sidenote: Post and Telegraphs.]

-- 582. Whereas previously the States severally concluded treaties concerning postal and telegraphic arrangements, they entered into Unions for this purpose during the second part of the nineteenth century:--

(1) Twenty-one States entered on October 9, 1874, at Berne, into a general postal convention[962] for the purpose of creating a General Postal Union. This General turned into the Universal Postal Union through the Convention of Paris[963] of June 1, 1878, to which thirty States were parties. This convention has several times been revised by the congresses of the Union, which have to meet every five years. The last revision took place at the Congress of Rome, 1906, where, on May 26, a new Universal Postal Convention[964] was signed by all the members of the Family of Nations for themselves and their colonies and dependencies. This Union possesses an International Office seated at Berne.[965]

[Footnote 962: See Martens, N.R.G. 2nd Ser. I. p. 651.]

[Footnote 963: See Martens, N.R.G. 2nd Ser. III. p. 699.]

[Footnote 964: See Martens, N.R.G. 3rd Ser. I. p. 355.]

[Footnote 965: See Fischer, "Post und Telegraphie im Weltverkehr"

(1879); Schroter, "Der Weltpostverein" (1900); Rolland, "De la correspondance postale et telegraphique dans les relations internationales" (1901).]

(2) A general telegraphic convention was concluded at Paris already on May 17, 1865, and in 1868 an International Telegraph Office[966] was inst.i.tuted at Berne. In time more and more States joined, and the basis of the Union is now the Convention of St. Petersburg[967] of July 22, 1875, which has been amended several times, the last time at Lisbon on June 11, 1908. That the Union will one day become universal there is no doubt, but as yet, although called "Universal" Telegraphic Union, only about thirty States are members.

[Footnote 966: See above, -- 464, and Fischer "Die Telegraphie und das Volkerrecht" (1876).]

[Footnote 967: See Martens, N.R.G. 2nd Ser. III. p. 614.]

(3) Concerning the general treaty of March 14, 1884, for the protection of submarine telegraph cables,[968] see above, -- 287.

[Footnote 968: See Martens, N.R.G. 2nd Ser. XI. p. 281.]

(4) A general radio-telegraphic convention[969] was signed by twenty-seven States on November 3, 1906, at Berlin. This Union has an International Office at Berne which is combined with that of the Universal Telegraph Union.

[Footnote 969: See Martens, N.R.G. 3rd Ser. III. p. 147, and above, -- 174, No. 2, and ---- 287_a_ and 287_b_, where the literature concerned is also to be found.]

[Sidenote: Transport and Communication.]

-- 583. Two general conventions are in existence in the interest of transport and communication:--

(1) A general convention[970] was concluded on October 14, 1890, at Berne concerning railway transports and freights. The parties--namely, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Luxemburg, Russia, and Switzerland--form a Union for this purpose, although the term "Union" is not made use of. The Union possesses an International Office[971] at Berne, which issues the _Zeitschrift fur den internationalen Eisenbahn transport_ and the _Bulletin des transports internationaux par chemins de fer_. Denmark, Roumania, and Sweden acceded to this Union some time after its conclusion.

[Footnote 970: See Martens, N.R.G. 2nd Ser. XIX. p. 289.]

[Footnote 971: See above, -- 470, and Kaufmann, "Die mitteleuropaischen Eisenbahnen und das internationale offentliche Recht" (1893); Rosenthal, "Internationales Eisenbahnfrachtrecht" (1894); Magne, "Des raccordements internationaux de chemins de fer, &c." (1901); Eger, "Das internationale Uebereinkommen uber den Eisenbahnfrachtverkehr" (2nd ed. 1903).]

(2) A general convention concerning the International Circulation of Motor Vehicles[972] was concluded on October 11, 1909, at Paris. The original signatory Powers were:--Great Britain, Germany, Austria-Hungary, Belgium, Bulgaria, Spain, France, Greece, Italy, Monaco, Montenegro, Holland, Portugal, Roumania, Russia, Servia; but Greece, Montenegro, Portugal, and Servia have not yet ratified.

Luxemburg, Sweden, and Switzerland acceded later on. To give effect to this convention in Great Britain, Parliament pa.s.sed in 1909 the Motor Car (International Circulation) Act,[973] 9 Edw. VII. c. 37.

[Footnote 972: See Martens, N.R.G. 3rd Ser. III. p. 834, and Treaty Series, 1910, No. 19.]

[Footnote 973: See also the Motor Car (International Circulation) Order in Council, 1910.]

[Sidenote: Copyright.]

-- 584. On September 9, 1886, the Convention of Berne was signed for the purpose of creating an international Union for the Protection of Works of Art and Literature. The Union has an International Office[974] at Berne. An additional Act to the convention was signed at Paris on May 4, 1906. Since, however, the stipulations of these conventions did not prove quite adequate, the "Revised[975] Berne Convention" was signed at Berlin on November 13, 1908. The parties are Great Britain, Germany, Belgium, Denmark, Spain, France, Haiti, Italy, j.a.pan, Liberia, Luxemburg, Monaco, Norway, Sweden, Switzerland, Tunis; but Denmark, France, Italy, Sweden, and Tunis have not yet ratified. Portugal acceded later. To give effect to the Convention of Berne of 1886, Parliament pa.s.sed in 1886 the "Act to amend the Law respecting International and Colonial Copyright" (49 & 50 Vict. c. 33). This Act, however, was, in consequence of the "Revised Berne Convention" of Berlin of 1908, repealed by section 37 of the Copyright Act, 1911 (1 Geo. V. c. 00), and sections 30 and 31 of the latter Act now deal with International Copyright.

[Footnote 974: See above, -- 467, and Orelli, "Der internationale Schutz des Urheberrechts" (1887); Thomas, "La convention litteraire et artistique internationale, &c." (1894); Briggs, "The Law of International Copyright" (1906); Rothlisberger, "Die Berner ubereinkunft zum Schutze von Werken der Literatur und Kunst" (1906).]

[Footnote 975: See Martens, N.R.G. 3rd Ser. IV. p. 590; Wauwermans, "La convention de Berne (revisee a Berlin) pour la protection des oeuvres litteraires et artistiques" (1910).]

[Sidenote: Commerce and Industry.]

-- 585. In the interests of commerce and industry three Unions are in existence:--

(1) On July 5, 1890, the Convention of Brussels was signed for the purpose of creating an international Union for the Publication of Customs Tariffs.[976] The Union has an International Office[977] at Brussels, which publishes the customs tariffs of the various States of the globe. The members of the Union are at present the following States:--Great Britain, Germany, Argentina, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chili, China, Colombia, Costa Rica, Cuba, Denmark, San Domingo, Ecuador, Egypt, France, Greece, Guatemala, Haiti, Holland, Honduras, Italy, j.a.pan, Mexico, Nicaragua, Norway, Panama, Paraguay, Persia, Peru, Portugal, Roumania, Russia, Salvador, Servia, Siam, Spain, Sweden, Switzerland, Turkey, the United States of America, Uruguay, and Venezuela.

[Footnote 976: See Martens, N.R.G. 2nd Ser. XVIII. p. 558.]

[Footnote 977: See above, -- 469.]

(2) On March 20, 1883, the Convention of Paris[978] was signed for the purpose of creating an international Union for the Protection of Industrial Property. The original members were:--Belgium, Brazil, San Domingo, France, Holland, Guatemala, Italy, Portugal, Salvador, Servia, Spain, and Switzerland. Great Britain, j.a.pan, Denmark, Mexico, the United States of America, Sweden-Norway, Germany, Cuba, and Austria-Hungary acceded later. This Union has an International Office[979] at Berne. The object of the Union is the protection of patents, trade-marks, and the like. On April 14, 1891, at Madrid, this Union agreed to arrangements concerning false indications of origin and the registration of trade-marks[980]; and an additional Act[981] was signed at Brussels on December 14, 1900. These later arrangements, however, are accepted only by certain States of the Union; Great Britain, for instance, is a party to the former but not to the latter.

[Footnote 978: See Martens, N.R.G. 2nd Ser. X. p. 133.]