Com mercial Treaties in general. V COMMERCIAL TREATIES Taylor, § 354-Moore, v. §§ 765-769-Melle in Holtzendorff, iii. pp. 143-256 § 578. Commercial treaties are treaties concerning the commerce and navigation of the contracting States, and concerning the subjects of these States who are engaged in commerce and navigation. Incidentally, however, they also contain clauses concerning consuls and various other matters. They are concluded, either for a limited or an unlimited number of years, and either for the whole territory of one or either party, or only for a part of such territory. All full sovereign States are competent to enter into commercial treaties, but it depends upon the special case whether half and part sovereign States are likewise competent. Although competent to enter upon commercial treaties, a State may, by an international compact, be restricted in its freedom with regard to its commercial policy. Thus, according to the Convention of September 10, 1919, revising the General Act of the Berlin Congo Conference of February 26, 1885, all the Powers which have possessions in the Congo district must grant complete freedom of commerce to all the parties to the convention. Again, to give another example, Austria, Germany, and Bulgaria are bound, while certain clauses of the Treaties of Peace are in force, to extend to all the Allied and Associated States every privilege in regard to the importation, exportation, or transit of goods granted by them to any foreign country whatever. And doubtless a similar obligation will be imposed on Hungary and Turkey. The details of commercial treaties are, for the most part, purely technical, and are, therefore, outside the scope of a general treatise on International Law. There are, however, two points of great importance which require discussion-namely, the meaning of coasting-trade, and of the most-favoured-nation clause. of Coast mercial § 579. The meaning of the term coasting-trade 2 in Meaning commercial treaties must not be confounded with its ing-trade meaning in International Law generally. The meaning in Comof the term in International Law becomes apparent Treaties. through its synonym cabotage-that is, navigation from cape to cape along the coast, combined with trading between the ports of the coast concerned, without going out into the open sea. Therefore, trade between Marseilles and Nice, between Calais and Havre, between London and Liverpool, and between Dublin and Belfast is coasting-trade, but trade between Marseilles and Havre, and between London and Dublin is not. It is a universally recognised rule 3 of International Law that every littoral State can exclude foreign merchantmen 1 See Treaty of Peace with Germany, Article 267; with Austria, Article 220; with Bulgaria, Article 150. 2 See Oppenheim in the Law Quarterly Review, xxiv. (1908), pp. 328-334. 3 See above, § 187. from the cabotage within its maritime belt. Cabotage is the contrast to the oversea1 carrying-trade, and has nothing to do with the question of free trade from or to a port on the coast to or from a port abroad. This question is one of commercial policy, and International Law does not prevent a State from restricting to vessels of its subjects the export or the import to its ports, or from allowing such export or import under certain conditions only. There is no doubt that originally the meaning of coasting-trade in commercial treaties was identical with its meaning in International Law generally, but there is likewise no doubt that the practice of the States gives now a much more extended meaning to the term coasting-trade, as used in commercial treaties. Thus France distinguishes between cabotage petit and grand; whereas petit cabotage is coasting-trade between ports in the same sea, grand cabotage is coasting-trade between a French port situated in the Atlantic Ocean and a French port situated in the Mediterranean, and— according to a statute of September 21, 1793-both grand and petit cabotage are exclusively reserved for French vessels. Thus, further, the United States of America has always considered trade between one of her ports in the Atlantic Ocean and one in the Pacific to be coasting-trade, and has exclusively reserved it for vessels of her own subjects; she considered such trade to be coasting-trade even when, before the Panama Canal was built, the carriage took place, not exclusively by sea around Cape Horn, but partly by sea and partly by land across the Isthmus of Panama. Great Britain has taken up a similar attitude. Section 2 1 It must be emphasised that navigation and trade from abroad to several ports of the same coast successively for instance, from Dover to Calais and then to Havre -is not coasting-trade but overses trade, provided that all the pas sengers and cargo are shipped from abroad. of the Navigation Act of 1849 (12 & 13 Vict. c. 29) enacted that no goods or passengers shall be carried coastwise from one part of the United Kingdom to another, or from the Isle of Man to the United Kingdom, except in British ships,' and thereby declared trade between a port of England or Scotland to a port of Ireland or the Isle of Man to be coasting-trade exclusively reserved for British ships, in spite of the fact that the open sea flows between these ports. And although the Navigation Act of 1849 is no longer in force, and this country now does admit foreign ships to its coastingtrade, it nevertheless still considers all trade between one port of the United Kingdom and another to be coasting-trade, as becomes apparent from § 140 of the Customs Consolidation Act of July 24, 1876 (39 & 40 Vict. c. 36). Again, Germany declared by a statute of May 22, 1881, coasting-trade to be trade between any two German ports, and reserved it for German vessels, although vessels of such States could be admitted as on their part admitted German vessels to their own coasting-trade. Thus trade between Koenigsberg in the Baltic and Hamburg in the North Sea is coasting-trade. These instances are sufficient to demonstrate that an extension of the original meaning of coasting-trade has really taken place, and has found general recognition. A great many commercial treaties have been concluded between such countries as established that extension of meaning and others, and these commercial treaties no doubt make use of the term coasting-trade in this its extended meaning. It must, therefore, be maintained that the term coasting-trade or cabotage as used in commercial treaties has acquired the following meaning: Sea-trade between any two ports of the same country whether on the same coast or different coasts, provided always that the different coasts are all of them the coasts of one and the same country as a political and geographical unit, in contradistinction to the coasts of colonies or dominions of such country. In spite of this established extension of the term coasting-trade, it did not include colonial trade until nearly the end of the nineteenth century. Indeed, when Russia, by ukase of 1897, enacted that trade between any of her ports should be considered coasting-trade, and be reserved for Russian vessels, this did not comprise a further extension of the conception of coasting-trade. The reason was that Russia, although her territory extended over different parts of the globe, was a political and geographical unit, and there was one stretch of territory only between St. Petersburg and Vladivostock. But when, in 1898 and 1899, the United States of America declared trade between any of her ports and those of Porto Rico, the Philippines, and the Hawaiian Islands to be coasting-trade, and consequently reserved it exclusively for American vessels, the distinction between coasting-trade and oversea or colonial trade fell to the ground. It is submitted that this American extension of the conception of coastingtrade, as used in her commercial treaties before 1898, is inadmissible, and contains a violation of the treaty 1 See details in Oppenheim, loc cit., pp. 331-332, but it is of value to draw attention here to a French statute of April 2, 1889. Whereas a statute of April 9, 1866, had thrown open the trade between France and Algeria to vessels of all nations, Article 1 of the statute of April 2, 1889, enacts: 'La navigation entre la France et l'Algérie ne pourra s'effectuer que sous pavillon français.' This French statute does not, as is frequently maintained, declare the trade between France and Algeria to be coasting-trade, but it nevertheless reserves such trade exclusively for French vessels. The French Government, in bringing the bill before the French Parliament, explained that the statute could not come into force before February 1, 1892, because Article 2 of the treaty with Belgium of October 31, 1881, and Article 21 of the treaty with Spain of February 6, 1882-both treaties to expire on February 1, 1892stipulated the same treatment for Belgian and Spanish as for French vessels, cabotage excepted. It is quite apparent that, if France had declared trade between French and Algerian ports to be coasting-trade in the meaning of her commercial treaties, the expiration of the treaties with Belgium and Spain need not have been awaited for putting the law of April 2, 1889, into force. * In the case of Huus v. New York |