« ПретходнаНастави »
Justice Story), against him, and the majority was obtained by the course of Mr. Justice Johnson, who decided for the neutral on special grounds, though in the Atalanta he gave his adherence to the general principle laid down by Marshall, C. J. The dissenting opinion of Story emphasized a fact on which the majority laid no stress, viz., that the vessel was sailing under enemy convoy, and that the claimant, being the charterer of the whole vessel, had bound her to sail under this convoy; that the vessel was captured with the claimant on board, while accidentally separated from the convoy and endeavoring to rejoin it. The case of the Nereide differs in an important point from the Fanny, in that it appears to have been an uncommissioned armed merchant vessel belonging to a belligerent which resisted capture; whereas the Fanny was a commissioned ship of war. The Nereide, however, was under enemy convoy, and it is submitted that the dissenting judgment of Story is on the facts of the case more in accord with the principle of unneutral conduct.
Since these cases were decided, the parties to the Declaration of Paris have agreed that neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag (Article 3) and that privateering is and remains abolished (Article 1).
It does not appear that there is a definite decision on the question as to the fate of neutral goods laden on a defensively armed and uncommissioned enemy merchant ship either in Great Britain or the United States. Sir W. Scott in the Catherina Elizabeth stated that in case of rescue by the capturing ship, neutral goods would be free. Between such an attempt made after capture, and a resistance to capture involving an attempt to take the assailing vessel previous to capture “there does not seem to be a total dissimilitude." 35 It is submitted that in such a case the opinion of the American court in the Nereide will probably be that which will be adopted, namely, that neutral goods placed on an uncommissioned armed merchant vessel belonging to a belligerent, and resisting capture, are not subject to condemnation, if the armament be entirely and exclusively the act of the belligerent owner, and the resistance in no degree imputable to the neutral. The Declaration of Paris by abolishing privateering left the status of the merchant ship untouched. The right of an enemy merchant ship to defend herself was unquestioned, as was
36 The Nereide, 9 Cr. 388.
also her liability to capture. The granting of the right to neutrals to send their goods on belligerent vessels does not deprive the belligerent of his right to resist visit and capture, so long as his ship remains an uncommissioned ship of war, “a ship of force" to use Lord Stowell's expression; but belligerents, by according neutrals the right, have at the same time deprived themselves of the advantage they might once have had of saying that the neutral is in fault and his goods are liable to condemnation, because the cruiser being armed can the better effectuate his right to defeat search or capture. The enemy ship and cargo may still be captured as an act of war, but if the neutral shipper has done no more than send his goods in an enemy vessel, his cargo or its value should be restored. 36
The majority of the court in the Nereide appears to have gone too far in asserting that as all merchant vessels during war are generally more or less armed, it is impossible for a prize court to distinguish between different degrees of armament. There is a great distinction between commissioned and uncommissioned armed merchant vessels; the former may, the latter may not, act on the offensive, and the arguments of Sir W. Scott and Mr. Justice Story in regard to the treatment of goods placed on board vessels of the former class may well be accepted, but rejected in the case of the latter, which were not in question. It is submitted therefore that neutral cargoes placed on board merchant vessels converted into war ships under the terms of the Hague Convention of 1907 should be liable to be condemned on the principle laid down by these two distinguished judges, while those placed on armed but uncommissioned merchant ships should, under the Declaration of Paris, be released.
A. PEARCE HIGGINS.
30 See Dana's note in Wheaton's Elements, $ 529.
RESTRICTIVE CLAUSES IN INTERNATIONAL ARBITRATION
The above is the title of a very instructive article in this Journal for April, 1913, by Dr. Hans Wehberg, who points out and analyzes the special grounds for the different reservations contained in several arbitration treaties concluded up to the present time, with the suggestion that such reservations might henceforth be restricted merely to two, that is to say, the exceptions of “vital interests” and “national honor."
The more widespread the notice of treaties of this kind, the easier it will be to form a definite opinion as to their practical value considering the restrictive stipulations contained in them. It is this thought which leads me to write this article, the main object of which is to make known the nature and extent of the arbitration treaties existing between Brazil and other states, European and American.
Up to the present time Brazil has entered into arbitration treaties with thirty-one states, nearly all of which have been ratified by the respective governments. Twelve of these treaties were made for a period of ten years, and nineteen for a period of five years. The first arbitration treaty was signed with Chile in 1899; the second with Argentina in 1905; and the remaining twenty-nine with different nations from 1909 to 1911.
Glancing at their stipulations containing reservations or exceptions, we find that such stipulations deal with the legal nature of controversies, constitutional precepts, vital interests, independence or sovereignty, national honor, territorial integrity, of the contracting parties, and, finally, the rights of third parties. To these I do not add the restriction excluding “controversies which may not have been settled by diplomacy, direct negotiations or any other conciliatory agencies,” because such a stipulation must be considered superfluous, it being presumed that such questions as might have been settled through other friendly ways would lack any ground to be referred to arbitral decision.
1 Vol. 7, page 301.
With a view of presenting an adequate illustration of the subject, I quote the first article of the different arbitration treaties containing the aforesaid reservations:
BRAZIL—CHILE The high contracting parties pledge themselves to submit to arbitration the controversies which may arise between them, during the period of the existence of the present treaty, concerning claims of a legal nature and which it has not been possible to settle by direct negotiations.
BRAZIL-ARGENTINA The high contracting parties pledge themselves to submit to arbitration the controversies which may arise between them and which it may not have been possible to settle by direct negotiations or any other conciliatory agencies; provided, that such controversies do not affect the constitutional precepts of either of the two countries.
BRAZIL—BOLIVIA The high contracting parties pledge themselves to submit to arbitration the controversies which may arise between them and which it may not have been possible to settle by direct negotiations or any other conciliatory agencies; provided, that such controversies do not affect the vital interests, territorial integrity, independence or sovereignty, or the honor of either of the two states.
BRAZIL—ITALY Controversies of whatever nature which may arise between the high contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to a friendly government or to the Permanent Court of Arbitration established at The Hague, or to one or more arbitrators selected by common agreement by the high contracting parties without limitation to the list of the members of the aforesaid court; provided, that such questions do not affect the independence or the constitutional precepts of either the one or the other state, and do not concern the interests of a third Power.
BRAZIL-UNITED STATES OF AMERICA Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two high contracting parties, and which it might not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague; provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two countries, and do not concern the interests of third parties, and it being further understood that in case either of the two high contracting parties shall so elect, any arbitration pursuant hereto shall be had before the chief of a friendly state or arbitrators selected without limitation to the lists of the aforesaid Hague Tribunal.
BRAZIL—Norway, and BRAZIL-SWEDEN Whatever controversies; provided, that they do not affect the vital interests, the independence or the honor of the two contracting parties.
BRAZIL-RUSSIA Controversies which do not affect the independence or the sovereignty of the contracting parties, and only relating to:
(a) matters of international private law;
(b) the regimen of commercial and industrial corporations, when organized according to the law of either country;
(c) matters of civil and criminal procedure, and to extradition.
BRAZIL-GREECE Controversies which do not affect the independence or sovereignty of the contracting parties and relating to:
(a) the interpretation or application of treaties; (b) pecuniary claims.
BRAZIL—GREAT BRITAIN Differences of whatever nature which may arise between the high contracting parties and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration at The Hague, to the chief of a friendly government or to such other arbitrators or tribunal as the parties jointly select; provided, nevertheless, that they do not affect the vital interests, the independence or the honor of the two contracting states and do not concern the interests of third parties.
From what has just been quoted, it results that the arbitration treaties to which Brazil is a party may be classified, as to their reservations, in the following groups: 2
I. Treaties containing one exception or reservation:
(b) Controversies not affecting constitutional precepts: Treaties with Argentina, Uruguay, and Denmark.
II. Treaties containing two reservations:
The same classification as adopted by Dr. H. Wehberg.