CHAP. 1. The system of mandates g. Difficulties attending the adjustment of national commercial policies merchant marine has demanded of states the creation of a navy adequate to protect the ships from capture in time of war and able to keep open the trade routes which are the highways of traffic. This argument was frequently stressed in justification of the development of the German navy in the opening decade of the twentieth century, and it is, as has been seen, the political obstacle to the establishment of an actual freedom of the seas.1 The tentative steps toward an international statute law 2 regulating the commercial relations of the great industrial states toward undeveloped territories, such as were taken by the Congo Convention of 1885, the Algeciras Convention of 1906, and the recent Washington Treaty of 1922 relating to China, dealt only with the specific cases in hand and did not lay down any general principles of law. The only suggestion of the recognition by states of such a general principle is to be seen in the provisions of the Covenant of the League of Nations with respect to the administration of territories placed under mandate. The lowest group of these territories, known as Class C, are to be administered as integral portions of the territory of the mandatory, so that it would appear that they are to be governed by the commercial laws of the mandatory. In the case of the group of mandates known as Class B, and including the territories of central Africa, the rules provide not merely that the administration shall be in the interest of the native population, but that it shall also "secure equal opportunities for the trade and commerce of other members of the League." It is an open question how far this principle of the "open door" applies to the important mandates, including mandates over Palestine, Syria and Mesopotamia (Iraq), known as Class A mandates,* to which a provisional degree of self-government is to be granted by the mandatory state. The problem of framing a constructive rule of law regulating the commercial relations of states has become an immediate and pressing one, now that it has come to be generally recognized how far the rivalry between the leading industrial powers for the con two existing commercial treaties led the President to refuse to enforce the specific provisions. See J. S. Reeves, "The Jones Act and the Denunciation of Treaties, "Am. Journal, XV (1921), 33. 2 See above, p. 299. Using the term in the restrictive sense applied to it above, p. 39. 3 Art. 22. 4 Compare the correspondence between Secretary Hughes and the British Foreign Office concerning the control of the oil resources of Mesopotamia, November, 1921. XIX trol of the world's markets was instrumental in determining the CHAP. foreign policies that led directly or indirectly to the World War. Yet the difficulties that are met with at the very outset of the attempt to formulate such a rule make it doubtful whether it will be possible to secure any collective agreement of all, or of the leading, industrial states upon that subject in the near future. First, there is the fact that the welfare and prosperity of modern industrial states is believed to be so intimately tied up with economic expansion abroad that it will be difficult to convince any single nation, especially the larger and stronger nations, that its domestic welfare will be advanced more through a wise regulation of competition, under which the balance between production and distribution might be made more stable, than by the present condition of laissez faire. In the second place, there is the serious technical difficulty of adjusting so complex and delicate a matter as the commercial intercourse of states by any fixed rules of law. Assuming every reasonable readiness on their part to do justice to their mutual claims, the nations would still be confronted in drawing up any general agreement with the elusive human factors governing business relations, to which only the most general rules could be applied.1 Tentative regulation, prohibiting certain unfair practices and maintaining the policy of the "open door" in disputed areas, would appear to be the first practicable objective.2 The experience of the United States in attempting to frame an adequate anti-trust act will suggest the difficulty confronting a regulation of international competition. Compare the provisions of the treaty “relating to the principles and policies to be followed in matters concerning China," entered into at the close of the Washington Conference on the Limitation of Armaments, February 6, 1922. Am. Journal, XVI (1922), Supp. 64. a. Treaties analogous to contracts under municipal law Treaties in lieu of legislation CHAPTER XX INTERNATIONAL TREATIES In international law, treaties bear in many respects a close analogy to the contracts of municipal law. The function which they perform is, however, a much wider one. On the one hand, there are the compacts or agreements between two or more states by which the parties seek to promote interests peculiar to themselves which it would be impossible or inexpedient to regulate by a common rule of law. These treaties are almost identical with the contracts of municipal law. Thus a treaty providing for the cession of territory, such as the treaty between the United States and Russia in 1867, differs in no appreciable way from a deed of sale executed between two individual citizens of the same state. Again, the treaty of 1818, by which Great Britain granted to the United States special fishing rights on the banks of Newfoundland, was closely analogous to the creation of a similar servitude-for example, profits à prendre-under the rules of the common law. The same is true of treaties dealing with other special commercial interests, with the adjustment of boundary lines, or with the promotion of joint enterprises, such as the proposed deep-water canal connecting the Great Lakes with the sea. It will be observed, however, that within this field treaties play a much smaller part than the widely diversified contracts of municipal law. On the other hand, treaties have been resorted to by the nations for the protection or promotion of many interests which in the case of individual citizens are regulated, not by private contracts, but by common rules of law. This is explained by the limited scope of the rules of customary law, and by the absence of an international legislature competent to meet new issues by the enactment of statutory legislation. In consequence, states have been obliged to do for themselves, two by two or in small groups, what the community of nations as a whole has been unable to do. Since the defense of national existence is the primary interest of every state, the most important treaties are those of alliance, guarantee, or neutralization, by which the parties have attempted to secure a XX measure of protection for themselves which the community of CHAP. nations, in its existing state of organization, was unable to furnish. Should the League of Nations, acting in pursuance of Article 10 of the Covenant, succeed in securing for its members the protection of their national existence and other lesser rights, the reason for treaties of alliance would gradually disappear. Apart from these treaties having a defensive object in view are others looking to the promotion of interests which in their general aspect are common to the great body of states, but which by reason of divergencies of local law it has been found more convenient to regulate by bilateral agreements. Such, for example, are treaties of extradition providing for the surrender of fugitive criminals. Because of differences in the criminal law of separate states, and particularly differences in the conception of political as distinct from strictly criminal offenses,1 states have thus far been unwilling, or at least have neglected, to conclude a general international convention covering the subject of extradition. The failure to conclude such a general convention has made it necessary for the nations, two by two, to conclude separate treaties which, if actually concluded by each nation with every other, would amount in number to some thirteen hundred. The growing similarity of modern treaties of extradition would suggest that in due time the separate treaties may be replaced by a single rule of law. In like manner the numerous treaties of amity, commerce, and navigation represent an attempt on the part of each state to establish relations with every other in matters where the conditions have varied sufficiently to prevent the adoption of a single common rule. making By contrast with these bilateral treaties, there are two groups Law of general treaties, or conventions, which have been called "law- treaties making treaties," and which, although differing in other respects from the statutes of municipal law, do in fact express the common will of the parties upon the subject of the treaty. Certain of these treaties have dealt with the political interests of the nations, and have attempted to regulate and stabilize the relations of states one to another as separate political entities. Those concluded between a small group of states, such as the Declaration of Paris in 1856, have frequently been adhered to by other states and thus become See above, p. 214. The student may make comparison with Article IV, Section 2, of the Constitution of the United States which imposes upon the governments of the several States a common duty to extradite fugitives from justice. See above, p. 217. CHAP. Treaties creating international unions b. Legal nature of treaties general law-making treaties. Others, such as the Hague conventions of 1907, became general treaties when ratified by a large majority of the parties to them.1 A far larger group of such general treaties deal with social and economic interests regarding which there has been little or no room for divergent policies, so that a common agreement could be reached and a statutory law adopted. These treaties or conventions have created such distinct corporate bodies as the Universal Postal Union, founded in 1874, the Union for the Protection of Industrial Property, founded in 1883, and numerous others, each as a rule having its central office in some one city and possessing a permanent organ or agency endowed with administrative powers.2 Until 1919 these unions, with their annual or occasional conferences or congresses, operated for the most part as distinct and separate units, each independent of the other both in respect to the convention by which it was created and in respect to the administrative agency through which it exercised its functions. Upon the adoption of the Covenant of the League of Nations, provision was made for their centralization. Should they ultimately come to be placed under the direction of the League, they would apparently thenceforth be regulated by resolutions of the Assembly and Council acting as legislative bodies, rather than by amendments to their separate conventions. Treaties may be defined as compacts entered into between sovereign states for the purpose of creating new rights and duties or defining existing ones. Publicists have disputed as to the extent to which the rights and duties thus created have legal validity. It would seem that a definite answer may be given in the case of the general law-making treaties, entered into by a large group or by the entire body of states. Such treaties represent, for the time of their duration, the direct common interest of the parties upon the particular subject of the treaty, and they have legal validity as expressing the collective will of these states. The term "law-making" regularly applied to these conventions must, however, be understood in a descriptive and analogical rather than in a strictly legal sense. They approximate to statutory legislation, but they differ from it in several important respects. In the first place, there is no element of authoritative command in them, since they become binding only between the powers which |