Слике страница

For this reason for the time being the authorities concerned pay attention only to the prevention of evil that may occur on account of the presence of these schools, intending later to enforce the principle of education standing aloof from religion.

He refers to the disabilities under which the Buddhists were placed during the late regime. Annexation improved their condition and an ordinance was adopted in 1911 for reviving Buddhism and its propagation.

Thanks to this, more than 20,000 monks and nuns living in 1400 monasteries and convents were enabled to engage in their work, being given due protection and raised to the same position as other religious workers.

A great deal has been done by the Government General for the improvement of agriculture and other industries. Agricultural stations and schools were established where improved methods of rice-culture, sericulture and cotton growing were taught and stock-breeding was encouraged. Export duties on agricultural products were removed. The production of rice and other cereals as well as of other agricultural products has been considerably increased since annexation. The acreage devoted to cotton has been increased more than six times and the output of silk has been multiplied threefold. Equal attention has been given to fisheries. The value of the annual catch has been doubled. Korea is rich in minerals and encouragement is being given to this industry also. A technical training institute established by the Japanese at Seoul has led to improvement in textile and other ancient industries of Korea.

Korea is too well settled to invite the immigration of large numbers of Japanese, yet the influx of Japanese farmers and artisans has been considerable. In 1910 the total Japanese population was estimated at 146,000. In 1913 there were more than 264,000 Japanese resident there, of whom about one-fifth were farmers.

The report makes a favorable showing for the Government and will undoubtedly create a good impression abroad.


Théorie Général de la Clause de la Nation la plus Favorisée en Droit

International Privé. By François Hepp. pp. 142. Paris: Juris

Classeurs. 1914. (5 francs). This monograph may be resolved into two parts: first, an introduction dealing with the forms, the history, the legal character, and the general application of the most-favored-nation clause; second, a discus

sion of the “Effets de la clause en matière privée.” In the latter we find a substantial contribution.

M. Hepp has rightly conceived it necessary first to deal with the nature of the clause and its particular applications in public international law. Thus, after a useful classification and the exposition of a convenient terminology, he proceeds to deal with the history of the clause. Unfortunately, he has seen fit to reproach those who have made special study of the clause in advance of him for having been, as he conceives, satisfied with mere chronological cataloguing and indifferent to critical methods and logic. “* * * ils se sont obstenus de porter un jugment sur le lien logique qui unit les unes aux autres, à travers l'histoire, * * * et, c'est la chronologie qui tient, dans leur raisonement et leurs hypothèses historiques, la place de la logique.” This generalization suggests too little consideration of the exhaustive work of Dr. Glier 1 which is cited in the bibliography, and unfamiliarity with the writer's The Most-favored-nation Clause in Commercial Treaties. It is true that no writer previous to M. Hepp has devoted special attention to the clause in relation to private international law.

Many readers will differ with M. Hepp in some details as to the character and intent of the clause. All will agree with him, however, that

* * * c'est en principe un traitment d'ordre économique qu'elle a pour but d'établir. Cependant, * * * elle peut fort bien avoir pour objet l'établissement et le maintien d'une autre égalité que l'égalité commerciale et la garantie contre d'autres risques que les risques commerciaux. He is right in pointing out that the clause must be studied in each instance in relation to the treaty in which it appears and that the intention of the parties at the time of making each treaty must be given ful! consideration. He dismisses rather abruptly the American theory of the clause. He considers that American diplomats have developed “des conclusions théoriques, erronées à notre sens, et qui nous semblent de tous points contraires aux conséquences logiques de l'engagement des parties contractantes.” This is somewhat summary, to say the least, and when we find a gross error in the first quotation which is made from an American treaty,' we are constrained to wonder whether M. Hepp has given the American theory and practice really close attention.

1 Die Meistbegünstigungsklausel. 2 Published in 1910. 3 In quoting Article 14 of the United States-Japan treaty of 1894,-at p. 25M. Hepp has it that the favors specified "sera immediatement et sans condition



As for theory and logic, whatever these may or may not have to say, the most-favored-nation clause is a practical instrument, and the forms and the interpretation which this and that nation give it in practice are determined by practical considerations. Different premises lead to different conclusions. The “American form” of the clause and the American interpretation have been developed to fit American commercial policy; both are well known to all countries with which the United States makes commercial treaties, and the difference between the American and the European practices is well established and understood.

M. Hepp's discussion is throughout affected by the theory of strict reciprocity which underlies Article 11 of the French Code Civil. M. Hepp overemphasizes the speculative character of the clause. “Au moment de la conclusion du traité qui contient la clause l'objet de l'engagement subscrit par les parties est absolument insaissible et de tous points aléatoire ” (p. 60). "Sans doute les parties courent l'une et l'autre le risque de donner respectivement beaucoup en échange de peu de chose, mais elles ont des chances aussi de beneficier d'une situation contraire, et cet aléa est évidement de l'essence même d'un contrat aléatoire" (p. 75). The statesmanship of commerce is continually seeking positive assurances—especially against inequality of opportunity, and it is these which, in our opinion, the most-favored-nation clause is intended and should be conceived to give.

M. Hepp's real contribution lies in his exposition of decisions of the French courts as to their jurisdiction over cases brought, and of the judgments which the courts have rendered with regard to rights claimed under provisions of the clause. Here we find especial attention given to the provisions of Article 11 of the Code Civil in connection with those of Article 11 of the Franco-German Treaty of Frankfort of May, 1871. Dismissing with a few words the question of the application of the "general ” form of the clause, and passing to the "specialized," or specialized reciprocal form, M. Hepp tells us that: Specifications with regard to matters of private rights are rare. The Court of Cassation has decided that there must be extended to subjects of an assured country all the private rights which the subjects of the most-favored-nation enjoy.

étendu," whereas, as a matter of fact, the real reading is that the favors will be extended "gratuitously, if the concession

shall have been gratuitous, and on the same or equivalent conditions if the concession shall have been conditional,”as is usual in treaties of the United States.


Specifications with regard to economic and commercial matters must be interpreted according to the general character of the treaty,-but the applicant for rights under such provisions must make a showing, first, as to his personal status as one engaged in such commerce as the treaty provisions contemplate, and, second, as to the general rights extended to the variety of commercial enterprise in which he has engaged. The Court of Cassation has decided that in France the courts may undertake the interpretation of French treaties when the question involved is one concerning private rights claimed thereunder, but that, as for determining the original meaning of the treaty, this concerns the contracting parties and is the business of the executive department. The letter of a treaty indicates but very imperfectly the real intention of the contracting parties. In most cases the courts will have to call on the administrative departments for the exact intent of the stipulations.

M. Hepp next takes up various cases which the courts have handled. "In the matter of enjoyment of rights in a strict sense, the normal effects of our clause appear to conflict with the general principles enunciated in Article 11 of the Civil Code

(p. 103). This article has as its basis the principle of diplomatic reciprocity, by which a foreigner enjoys in France the rights which Frenchmen enjoy by virtue of treaty provisions in the country from which that foreigner hails. "Is it then necessary to admit exceptions to this principle because of the clause, and to extend privileges which are not in the country of the foreigner's origin extended to Frenchmen?” M. Hepp believes that it is not.

Selon nous, la regle de l'article 11 ne supprime nullement le droit du pays favorisée, mais elle combine avec lui pour se limiter, dans la mesure exacte ou il se trouverait limité si le traitement favorisé avait été stipulé sous la forme "américaine,” ou mieux

sous la forme qu'il affecte dans un traite recent: la convention franco-russe du 14 avril 1912

pp. 106-107. The question is often raised whether foreign companies should enjoy the rights guaranteed to foreign subjects. Upon this point several cases are cited where the courts have decided in the affirmative, together with one where the decision was in the negative. As to the right of hypothèque légale of a married woman over the real property of her husband situated in France, several cases where such rights were claimed were decided adversely. The claim of the right of freedom of access to the courts has been sustained. Under Conflits des Lois, three cases are cited in which the question of the validity of a will made by an Englishman in France in English form, the question of whether the inheritance of a




Russian in France should escape the right of prelèvement and the question of the right of consular jurisdiction over the inheritance of a Turk in France were decided adversely. As to the competence of courts, some applications have been decided unfavorably on the ground that the clause applied to matters of commerce only and not to matters of competence and procedure. Some applications, however, have been accepted. M. Hepp concludes that no general rule can be laid down. On the question of consular competence, the Court of Cassation decided in a case against the Bank of Tunis that the competence accorded to an English consul by the Anglo-Tunisian treaty of 1863 must be accorded to a French consul (p. 129). Protection of rights in literary and artistic property can not be sought unless especially stipulated for, in which case the French courts have uniformly recognized the rights of the petitioners.

M. Hepp cites also a decision of the Supreme Court of Madrid to the effect that to extend certain privileges relative to communications between judicial authorities to a country which is not signatory to a special convention "serait étendre à un tiers un traitement exceptionel en vertu de la clause, ce qui est inadmissible.” To this M. Hepp objects, but without informing us as to the general practice or the commercial policy of the Spanish Government.

In the absence of adjudication on the question of extradition, M. Hepp holds the opinion that, save in case of special specification, the clause will not apply to extradition.

The latter and main portion of M. Hepp's study presents much material that is at once enlightening, interesting and instructive.


La Guerre Italo-Turque et le droit des Gens. By M. Andréa Rapisardi

Mirabelli. (Reprint from Revue de droit international et de Législation comparée.) Brussels: Bureau de la Revue. 1913. 206 pp.

It may admit of doubt whether this interesting history of the appropriation of Turkish Tripoli by Italy is properly a subject of review in a journal of international law, for the writer tells us at the outset of his volume of two hundred pages that “the study of the causes of a particular war is not a subject strictly within the purview of international law,” and that although “there are writers who deem such a study as necessary to the juridical determination of the question as to which of

« ПретходнаНастави »