confirmed by the Treaty of Rio de Janeiro in 1810, after the Braganzas had become settled in Brazil, and by the Treaty of Vienna of January 22, 1815, between the two states which provides:

The treaty of alliance at Rio de Janeiro of the 10th February, 1810, being founded on temporary circumstances, which have happily ceased to exist, the said treaty is hereby declared to be of no effect; without prejudice, however, to the ancient treaties of alliance, friendship and guaranty which have so long and so happily subsisted between the two crowns, and which are hereby renewed by the high contracting parties, and acknowledged to be of full force and effect.

Thus the treaty provision of 1807 was revised, and when Manuel of the Braganzas was succeeded by the republic, which Great Britain recognized, the London Government found itself violating the treaty, but with the full sanction of the other sovereign, the rulers of republican Portugal. This instance of faulty wording is, of course, only an anachronism. The careful methods of modern diplomacy would instinctively dictate referring not to "the two crowns" but to the "two high contracting parties."

DENYS P. MYERS.

secret. Wheaton knew them and anybody may find them in British and Foreign State Papers, I, 412 ff.

CONFLICTS BETWEEN INTERNATIONAL LAW AND

TREATIES

IN protesting against the decision of the Central American Court of Justice in the recent case of Costa Rica v. Nicaragua, the latter government says:

It does not, and cannot, admit the unrestricted power that the court arrogates to itself to take cognizance of all the differences that may arise between the Central American States, . . . because no nation on earth would submit to the arbitrament of strangers its security and preservation. . . .1

In reply the court supported its decision, which had denied the capacity of Nicaragua to conclude the Bryan-Chamorro Treaty with the United States, and said:

It must be evident, then, that if this strange reasoning were to find support among the other governments signatory to the Treaties of Washington, then at once, and perhaps forever, would be effaced an institution that now stands as the worthiest conquest of civilization, one of which the Central American States have been justly boastful and for which they have well merited the applause and admiration of the whole world.2

In his editorial comment on this case in the January number of this JOURNAL, Professor Brown remarked: "The most significant point of international law raised by this whole controversy is the right of a state in its sovereign capacity to negotiate as a free agent with another sovereign state concerning matters of vital interest to other neighboring states." He concludes: "We need to recognize, in place of the archaic theory of sovereignty, the great principle, the fundamental reality of the mutual dependence, the common interests of the world." 3 It was this need which the Central American Court recognized in upholding its jurisdiction, and which it regarded as its very raison d'être.

1 This JOURNAL, Supplement, 11: 5.

2 Ibid. * This JOURNAL, 11: 158, 159.

In a previous article in this JOURNAL the conclusion was reached, that when the state expresses its will definitely, as through a statute, courts will recognize such a source of law as superior to international law and apply the statute in case of a conflict. Statutes, however, ordinarily apply only within the territory of the state. They are pronouncements of the internal sovereignty of the state. Thus, within its boundaries, judicial practice recognizes that the state enjoys l'autonomie de la volonté. Is there a similar judicial recognition of the external sovereignty of the state? The very idea of international law seems to imply that the external activity of the state is limited by law," but ordinary courts of justice, because of their limited jurisdiction, cannot often consider cases involving such activity. There is, however, one type of case in which they may do so, that in which a conflict arises between the immediate will of the state as expressed in a treaty and international law.

8

How far has general practice recognized that the capacity of a state

• Conflicts of International Law with National Laws and Ordinances, this JOURNAL, 11:1.

5 666

"All legislation is prima facie territorial.' Words having universal scope such as 'every contract in restraint of trade'. . . will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator may subsequently be able to catch." Justice Holmes, in American Banana Co. v. United Fruit Co., 213 U. S. 347 (1909).

• Even here the expression of the state's will must be unequivocal. Thus less definite sources of municipal law, such as executive orders, judicial precedents, etc., will not always stand in the way of the application of international law, even in case of a clear conflict, and municipal law will always be interpreted in harmony with international law if possible. See this JOURNAL, 11: 1.

The theory of sovereignty can be saved even here by assuming that the law is formed by agreement, in which case the will of each is not limited because it forms a voluntary component of the volonté générale. We speak, however, of sovereignty in the legal sense which gives meaning to the phrase, "The king can do no wrong." It is very clear that the will of the "sovereign" as expressed today by king, or president, or legislature, may not be in accord with the volonté générale embodied in international law, even though the "sovereign" may have "agreed" to that law in the past.

Judicial recourse to the doctrine of "political questions," "acts of state," and "actes du gouvernment," usually means that on matters relating to external sovereignty the courts have no jurisdiction and so will regard the acts of political agencies of the government as facts to be accepted, not as legal questions to be judged.

to conclude treaties is limited by customary international law and treaties which it has previously concluded with third states? The question can be answered by considering the relative legal weight given to treaties and international law. If a treaty provision in conflict with a rule of international law or an earlier treaty is held to be inoperative by a national or international court, an actual limitation has been imposed upon the power of the state to contract. Sovereignty has been compelled to bow before the law.

Conflicts of international law (1) with treaties affecting nonsignatories, (2) with treaties affecting only signatories and (3) conflicts between two treaties, will be considered successively.

CONFLICTS OF INTERNATIONAL LAW WITH TREATIES AFFECTING

NONSIGNATORIES

Some writers have maintained that treaties in certain cases, as, for instance, when meliorating the harshness of earlier practice,10 form a true source of international law and are obligatory even toward nonsignatories. Wheaton said in his first edition:

The effect of treaties and conventions between nations is not necessarily restricted, as Rutherforth has supposed, to those states who are direct parties to these compacts. They can not indeed modify the original and pre-existing international law to the disadvantage of those states who are not direct parties to the particular treaty in question. But if such a treaty relaxes the rigor of the primitive law of nations in their favor, or is merely declaratory of the pre-existing law, or furnishes a more definite rule in cases where the practice of different states has given rise to conflicting pretensions, the conventional law thus introduced is not only obligatory as between the contracting parties, but constitutes a rule, to be observed by them towards all the rest of the world."

9 By signatories is meant states which have signed and ratified the treaty and exchanged ratifications. A state which has signed but not ratified a treaty is legally in the same situation as a state which has had nothing to do with the instrument. 10 Examples are furnished by Article 12 of the treaty between the United States and Italy of 1871 abolishing the right of capturing enemy property at sea, and prior to 1856 by the numerous treaties providing for free ships, free goods. Many provisions of the Hague Conventions, as, for instance, No. XI, 1907, Article 5, exempting the crew of captured enemy merchant ships from detention as prisoners of war, are also meliorations of customary international law.

11 Henry Wheaton, The Elements of International Law, 1st ed., Philadelphia, 1836, p. 50. As authority, Lord Grenville's speech in the House of Lords, Nov. 13,

Wheaton omitted this paragraph from the last edition revised by himself (1848), and the statement, except in reference to treaties declaratory of international law, now receives no support. The proper rule seems to be that treaties need be observed only to the advantage of signatories, a condition expressly recognized in the Hague Conventions; 12 in a number of arbitration treaties concluded by the United States, which specifically exclude matters affecting third states from the scope of the arbitral agreement; 13 and in numerous other treaties, in terms requiring observance toward signatories alone.14 A state by signing a treaty does not obligate itself to observe its provisions toward third states, although a treaty worded in universal terms, relaxing the severity of customary international law, is apt to furnish a strong diplomatic argument against a signatory state by a nonsignatory claimant.16

15

1801 (Hansard, 36: 232, abstracted in Wheaton, History of the Law of Nations, N. Y., 1845, p. 408 et seq.), is cited, in which Lord Grenville opposed ratification of the treaty of June 17, 1801 with Russia on the ground, among others, that the meliorations of international law therein provided would be required of Great Britain by nonsignatory states. Marten's Précis du droit des Gens, Paris, 1831, 1: 45, sec. 7, and Klüber, Droit des Gens, Paris, 1831, 1: 5, sec. 3 have been cited as of this opinion (Reddie, Inquiries in International Law, London, 1842, 157), but they appear to have been misunderstood (Ortolan, Diplomatie de la mer, Paris, 1856, 2: 442; Twiss, Law of Nations, Oxford, 1861, 1: 132), their actual view going little farther than that of Bynkershoek, that numerous treaties with a similar content furnish evidence of accepted international law. Twiss discusses the question at length, with the conclusion that a treaty relaxing a rule of international law may extend to other nations, "but this indirect result will depend not upon the force of the convention as a contract, for that only binds the parties to it, but on certain considerations of right (jus) dehors the treaty."

12 Most law-making conventions have in terms limited their operation to signatories. The Declaration of Paris, for instance, says "The present declaration is and shall be obligatory only among the Powers who have or who shall have acceded to it."

13 As an example see treaty with Great Britain, 1908, Article 1, Malloy, Treaties,

p. 814.

14 In the treaty between the United States and Russia of 1854 the contracting parties recognized the principles of free ships, free goods, and the freedom of neutral goods in enemy ships as "permanent and immutable," but only engaged "to apply these principles to the commerce and navigation of such Powers and states as shall consent to adopt them on their part as permanent and immutable." Malloy, p. 1520. 15 Dana, note to Wheaton, p. 610; Twiss, op. cit., 1: 134 et seq.

16 This point was discussed by Lord Grenville in the debate in the House of