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Claims said: “Were this action brought against a private citizen, against a body corporate, against a foreign government, it could not possibly be sustained. In this court the United States can be held to no greater liability than other contractors in other courts.”'
The principle has also been repeatedly applied in the Court of Claims where the act of state was that of an executive officer. The claimants in Jones's Case contracted with the United States, through the Commissioner of Indian Affairs, to survey certain public lands which at the time were protected from Indian attack by United States troops.
After the claimants had begun work on the contract it became necessary to withdraw the troops. When this was done by the United States War Department, the Indians swooped down upon the surveyors and caused them much delay and increased expense in the execution of their contract. The claimants sued to recover on the ground that the United States could not change its attitude or its policy in a material degree, without incurring the responsibility of making the claimants just compensation for all additional expenses thereby occasioned. The Court of Claims held: “ This position can not be sustained. The two characters which the Government possesses as a contractor and as a sovereign can not be thus fused; nor can the United States while sued in the one character be made liable in damages for its acts done in the other. Whatever acts the Government may do, be they legislative or executive, so long as they be public and general, can not be deemed specially to alter, modify, obstruct, or violate the particular contracts into which it enters with private persons.
Every state in the administration of its national law distinguishes those governmental acts which give rise to breaches of contract (to which it is party) from those which, however much they may annul or modify such contracts, give rise to no legal damage, i. e., are damnum absque injuria. Every state denies that its public governmental acts can give rise to “ dettes contractuelles.”
Under the present convention are these distinctions of the national law to be ignored? Is the position to be taken that all acts of a state, which annul or otherwise interfere with the contracts between it and the subjects of a foreign state, may give rise to “dettes contrac
tuelles ?” This is undoubtedly the true construction.
The term "dettes contractuelles" as used in the national law of states denotes government liability in matters of contract; as used in the present convention it connotes arbitral jurisdiction in international disputes, or at least the absence of force under certain circumstances. The intent of the convention is to refer to international tribunals the very delicate and difficult task of determining the liability of one state to another where the public governmental acts of the one have annulled or modified the contracts which it had with the subjects of the other. But the present convention does not give a jurisdiction to arbitration in the sense that one state may summon another state before an international tribunal to have any controversy between them respecting contract claims determined. No tribunal exists with authority to entertain such controversies. The powers in dispute must establish by convention, or other agreement, their forum, and they may stipulate expressly the law which the arbitrators shall apply. However, if the arbitrators are untrammelled by such stipulations, they are free to fix, according to their own views, the international standard of state liability for damages suffered by foreigners in respect to their contracts with a state.
In recommending the present convention to the states of the world for ratification the Second Hague Conference has taken a wellmeasured step toward the giving of a definite and unconditional jurisdiction to arbitration. Its ratification and faithful observance should act as an entering wedge to the development of an arbitral jurisdiction. Gradually the present rough arrangement may be improved and its incomplete jurisdiction extended, as the early writs in England extended the jurisdiction of the courts. Gradually the state may be expected to discover that their “national honor" and * vital interests ” are not jeopardized by referring their differences to the arbitrament of law. Gradually states, and the society of which they are composed, may be expected to acquire the habit of submitting international disputes to the decision of international tribunals in which they have confidence. Gradually the crude arbi
arrangements of the present may be perfected, and that confidence in the fairness and judicial attitude of the arbitrators which
is fundamental to the reign of law may come to exist. Gradually the attachment of the property of an alleged debtor, in advance of a judicial investigation into the merits of the debt - a procedure unknown to the English common law — may cease as between the states. Gradually states may consider that it is unbecoming the high dignity and standards of justice which they should maintain to lend their great powers to the collection of the often falsely exaggerated claims of unprincipled speculators, supported by merely ex parte evidence.
GEORGE WINFIELD Scott.
THE HAGUE CONVENTION CONCERNING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND
PERSONS IN LAND WARFARE.1
1. Hugo Grotius says, at the close of Chapter XVII, Book III, of his work De jure belli ac pacis, that it may be advantageous (for a neutral) to make a convention with each of the belligerents so that it may be allowed to abstain from the war with the consent of both sides. This opinion of the father of the law of nations might be deemed to be well reasoned in 1625, but it reads very strangely in 1908.
To be neutral is to-day the right of all nations, not derived from the consent of the belligerents but rather imposed upon them absolutely. War is an abnormal condition, occurs at increasingly greater intervals, and is becoming of shorter and shorter duration. To make the briefest passing review of the history of the eighteenth century one would have to summarize the years of peace; but for the last half century one would gain time by summarizing the years of war. Since 1815 the territorial expansion of the civilized world and the great variety of political and economical interests on the Continent have done away with the spectacle of world wars. In the present time not only would an armed conflict of one hundred years be impossible, but even one of thirty, or ten or seven years' duration.
This tendency toward the limitation of warfare goes beyond juridical doctrines and has a direct and positive influence upon the progressive tendency and continuous development of the law of neutrality. Although the word “neutrality,” which was unknown to Grotius, was used five years before the publication of his immortal work by the obscure author Neumayr de Ramsla, nevertheless the idea which it represents at the present day is the result of the pacific sentiment of our times.
1 Translated by Miss Margaret M. Hanna, Department of State.
It is necessary to limit, so far as possible, the effects of war, in order not to disturb in international society those who wish to continue to enjoy the benefits of peace, and it is necessary that the latter shall be able to declare, in the name of the law, that the peace continues for them unaltered, and that in their dominions and sphere of action they will proceed irrespective of the war and unmoved by the war.
When neutrality began to develop into theory and practice in the eighteenth century it was supported by the desire of each belligerent to prevent the enemy from gathering forces with the assistance of noncombatant states. By a reaction, due partly to jealousy and partly to resentment, the belligerent states consented to the inevitable necessity that there be neutral states, on the condition of imposing upon them strict duties, so that the enemy country of either could not be benefited by that situation. And, in fact, theory and practice set forth and demanded a series of duties for neutral states, as though such condition were a grave wrong or menace to international society.
At the same time, the comparative difficulty of land communication and the isolation of states caused the principal interest in these questions to be turned upon the sea and maritime enterprises. The two great armed neutralities were in the interest of commerce at sea, and the decisions of the Congress of Paris of 1856 dealt with the maritime practice of neutrals.
2. By the time of the meeting of the conference at The Hague there had taken place a new and important evolution in the theory and practice in regard to these questions. In brief, neutrality to-day does not depend upon the interest of the belligerents, nor upon their military exigencies, but upon the pacific interests of the universal community, constantly becoming more exacting, and upon the right of the noncombatant states to maintain their natural prerogatives in spite of the conflict.
A series of acts and abstentions, which were formerly called duties of neutral powers, are still called duties, but of the bellig