International Law: Chiefly as Interpreted and Applied in Canada 9781442652613

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International Law: Chiefly as Interpreted and Applied in Canada

Table of contents :
Principal Abbreviations Found in This Book
Part I. General
I. Definitions, Nature, and Sources of International Law
II. Authority and Application of International Law in Canadian Courts
III. The Domain of International Law
Part II. International Personality
IV. The Subjects or Persons of International Law
Part III. State Jurisdiction
V. Forms of State Jurisdiction: Territorial and Personal
VI. The Territory of States
VII. Nationality and Individuals in International Law
VIII. Extent of State Jurisdiction
Part IV. International Agreements
IX. The Law of Treaties
Part V. The International Responsibility of States
X. State Responsibility and International Claims
Part VI. Disputes and Hostile Relations Between States
XI. Pacific Settlement of International Disputes
XII. Forcible or Coercive Means of Settlement
XIII. Neutrality
Selected Bibliography
Index of Cases
Subject Index

Citation preview

INTERNATIONAL LAW chiefly as interpreted and applied in Canada




Professor of Law Osgoode Hall Law School


©University of Toronto Press 1965 Printed in Canada

Acknowledgments The author wishes to express his sincere appreciation and gratitude to Dean H. Allan Leal of the Osgoode Hall Law School; Mr. George A. Johnston, Chief Librarian of the?' -Law Society of Upper Canada; and Mr. K. Howard Drake, Secretary and Librarian of the Institute of Advanced Legal Studies of the University of London and the Department of External Affairs, Ottawa, for their assistance in making possible the preparation of this book; to his former teachers Professors Charles Rousseau of the Faculty of Law of the University of Paris, Louis B. Sohn of the Harvard Law School, and W. W. Bishop, Jr., of the University of Michigan, from whose many ideas there have been numerous borrowings; to Miss Francess Halpenny and her staff at the University of Toronto Press for assistance in the production of this book; to his friends and colleagues teaching in the various Canadian law schools who have given so freely of their opinions and assistance, particularly Dr. Norman MacKenzie, Mr. John Holmes, Dean W. A. MacKay and Professor W. H. R. Charles of Dalhousie University, Professors I. L. Head of the University of Alberta, C. B. Bourne of the University of British Columbia, A. Patry of Laval University, Dean Maxwell Cohen and Professor I. Vlasic of McGill University, Professors J.-Y. Morin of the University of Montreal, J. V. La Forest of the University of New Brunswick, D. Pharand of the University of Ottawa, H. J. Lawford of Queen's University, D. C. Williams of the University of Saskatchewan, R. St. J. Macdonald of the University of Toronto, D. M. Johnston of the University of Western Ontario, and Mr. Gerald F. Fitzgerald of I.C.A.O., Montreal. The author also desires to thank all of those who have been most generous in giving permission for the reproduction in this book of materials on which there are copyrights, especially Butterworth & Co. (Publishers) Ltd.; The Canada Law Book Co., Ltd.; The Clarendon Press, Oxford; Oxford University Press; Stevens & Sons Limited, Publishers; the Department of External Affairs, Ottawa; the British Institute of International and Comparative Law; The Carswell Company Limited; Harvard University Press; Little, Brown and Company, Publishers; McGill Law Journal; Canadian Bar Review; the Canadian Tax Foundation; University of Toronto Law Journal; the Legal Division of the United Nations; the Secretariat of the International Court of Justice; the American Society of International Law; and the Financial Post. Finally the author wishes to acknowledge with warm appreciation the contributions of the Social Science Research Council of Canada using funds provided by the Canada Council, the Canadian Institute of International Affairs, the Law Society of Upper Canada, and the Reading Law dub, without whose generous financial support the publication of this book could not have taken place.

Preface In present-day law schools the study of international law is coming into its own. Because it deals with world affairs, albeit their legal side, one occasionally hears that international law properly belongs in the undergraduate university curriculum; however, it is now offered by thirteen of our fifteen law schools on an optional or compulsory basis, and the longprevailing emphasis on local law is on the wane. So is the tendency of some Canadian lawyers to regard international law as fanciful or unreal. True, it is not a "bread-and-butter" subject, for it is unlikely that the majority of law students will come in direct contact with its rules, although the practising attorney in centres of international business such as Toronto, Montreal, or Vancouver will now and then be consulted by Canadian corporations operating abroad, or be called upon to deal with such matters as immigration and extradition. But for anyone planning a career in the public service of Canada, particularly in the Department of External Affairs, and indeed for all educated citizens and civic leaders, a grasp of international law is of increasingly great importance. With Canada's growing involvement in foreign affairs, the lawyer has encountered the professional responsibility, whether or not he is in public office, of understanding the legal aspects of international problems in order to serve as an educated guide for public opinion. Because of his training, he is at once expected and qualified to be familiar with the body of international law that now dramatically affects everyone's daily life. But familiarity with the subject is not easy to acquire. Owing to the diversity of disciplines involved, the subject of international law is difficult both to learn and to teach, and the difficulty is enhanced in Canada by the unavailability of a suitable textbook on the graduate or undergraduate level. Although in 1938 Professors N. MacKenzie and L. H. Laing prepared a casebook entitled Canada and the Law of Nations, it has been out of print for more than a decade, and as the authors themselves observed in the preface, it was not intended "to take the place of standard collections at present in use." Today it is no longer true, as the same authors once maintained, that "the problems of Canada in international law are largely the problems of Canada in her relations with the United States." In fact, as Professor M. O. Hudson remarked in reviewing the book, "The numerous volumes of the Canada Treaty Series suggest a doubt as to whether this statement ought to be made today. Canada's 'true nationhood, not nominal, but spiritual' and actual, has placed the Dominion in a zodiac which has more than a southern exposure, and a broader conception of the law of nations, not limited to the output of courts, might have led this welcome volume to give an ampler picture of Canada and the Law of Nations." ((1938), 32 Am. J. Int. L. 447.) The purpose of the present book is to give such an "ampler picture." Since the end of World War II, Canada's international preoccupations have become world-wide, and succeeding Canadian governments have declined to follow slavishly the policies made in Washington or London. This book is designed for use by Canadian law students in an introductory course on international law. The variety of materials presented, together with editorial notes, should also prove helpful to students of political science and to diplomatic officials who represent or deal with the Canadian Government. Cases form an important part of the material quoted. They have been selected to facilitate discussion of the problems which most



frequently arise in the Canadian practice of international law and conduct of international relations. The urgent need to keep down the size of the book has prevented the use of much material in toto, and has also necessitated the omission of some cases that illustrate the judicial technique in the application and historical development of international law. However, the student will find extracts from all the important Canadian cases reported as of May 1, 1965. Although the emphasis is on Canadian material, important decisions of foreign courts and international tribunals have been included, either because they constitute in themselves small treatises on the subjects with which they deal or because they raise or settle controversial questions. As far as possible, use has been made of the judgments or opinions of the Permanent Court of International Justice and the International Court of Justice, the awards of the Permanent Court of Arbitration, and the decisions of various international claims commissions. Besides cases, the book contains numerous national and international legislative documents dealing with international law. Acts of Parliament, international treaties, acts of international congresses, reports of international commissions, diplomatic correspondence, and other diverse material must find a place in any scheme of study of international law. As Professor Hudson has pointed out, "Valuable as the case system may be, an editor is bound to recognize the limitations on its use in international law, a field in which some of the most interesting problems never come before the courts national or international." (Ibid.) Thus, a really comprehensive study of international law would require analysis of a great volume of documents. In this book an attempt has been made to include only those of primary interest. These documents, as well as selected essays, are used when they are necessary for the understanding of a rule or when there is a shortage of relevant cases. Notes are included to supplement and explain the cases and materials. They fill in gaps and provide a transition. Secondary sources have been cited mostly on the basis of availability to the average reader. Emphasis is placed upon material appearing in periodicals which are generally available in all Canadian law schools: Canadian Bar Review, the McGill Law Journal, External Affairs, the University of Toronto Law Journal, the American Journal of International Law, the British Yearbook of International Law, and the Canadian Yearbook of International Law. A selected bibliography is also included for further study by those interesied in deepening their knowledge of international law. At the outset of the book a survey of the general nature and sources of international law is presented. There follows an analysis of basic principles and their application in Canadian courts. Specific topics of direct interest to Canadians, such as boundary waters, coastal fisheries, and the status of foreign visiting forces, are examined in detail. The subjects of immigration, the status of aliens in Canada, citizenship, and the law of treaties also occupy prominent places. Special attention is given to the charters of the United Nations and the Organization of American States, particularly to their provisions for the pacific settlement of legal and political disputes. Also considered at length are selected problems of the law of war and neutrality that might be faced by a government expert or a lawyer in practice. The reader will see from the outline just given that the author has intended no substantial departure from the time-honoured method of studying international law; rather he has simply attempted to provide a comprehensive survey of the subject from a Canadian point of view. J.-G. CASTEL Toronto, May 1, 1965

Contents PREFACE






I. Definitions, Nature, and Sources of International Law A) Définitions B) Légal Nature, Function, and Basis of Obligations in International Law (1) Legal Nature, 5; (2) Function, 8; (3) The Basis of Obligations, 9 C) The Determination of the Rules of International Law (1) Treaties and International Conventions, 15; (2) Custom, 16; (3) General Principles of Law Recognized by Civilized Nations, 29; (4) Judicial Decisions and Teachings, 30, (i) Judicial decisions, 30, (ii) The teachings of publicists, 30 D) History of International Law: Selected Bibliography E) Theory: The Leading Writers on International Law: Selected Bibliography (1) Precursors, 39, (i) The birth of international law, 39, (ii) The legal conception of international law, 39, (iii) The philosophers, 39; (2) Modern Authors, 39; (3) Contemporary Authors, 40 F) The Codification of International Law II. Authority and Application of International Law in Canadian Courts A) Common Law Doctrine of Adoption or Incorporation B) Canada C) The Relation of International Law to Municipal (Canadian) Law D) Selected Reading III. The Domain of International Law PART II. INTERNATIONAL PERSONALITY IV. The Subjects or Persons of International Law A) General Notion of Sovereign States in International Law B) Sovereignty—Independence—State Equality—Friendly Relations and International Co-operation (1) Sovereignty, 78; (2) Independence, 79, (i) General, 79, (ii) Intervention, 82; (3) Equality, 88; (4) Friendly relations and International Co-operation, 89, (i) Friendly relations and co-operation among States, 89, (ii) Economic co-operation, 98 C) The "Dominion" of Canada as an International Entity (1) Documents and other Statutory Material, 100, (i) The British Commonwealth and Imperial Conference of 1926, 100,

1 3 3 5 15

38 38

40 43 43 45

48 55 66 73 75 75 78





(ii) The Statute of Westminster, 106; (2) Evolution of Canada's Status as an International Person, 111; (3) Judicial Acknowledgment, 117 D) Dependent States, Mandates, Trust Territories, etc. E) International Persons Other than States (1) The United Nations, 118; (2) The Organization of American States, 127; (3) Custom and Economic Unions, 130, (i) Treaty establishing the European Economic Community (1958), 130, (ii) Treaty establishing the European Coal and Steel Community (1951), 131, (iii) The European Atomic Energy Community (Euratom), 133, (iv) General Agreement on Tariffs and Trade (GAIT), 133, (v) Commonwealth Reference, 135, i(vi)The European Free Trade Association, 135, (vii) Latin America, 136; (4) Special Situation: The Holy See, 136; (5) Individuals as Subjects of International Law, 137 F) Recognition of States and Governments (1) General, 139, (i) By whom, 141, (ii) Method, 141, (a) States, 141, (b) Governments, 143; (2) Distinction Between de Jure and de Facto Government and Recognition, 154; (3) Legal Effects of Recognition, 156; (4) Retroactivity of Recognition, 168; (5) Recognition of Belligerency: Insurgency, 176 G) Continuity of States—Extinction of States and State Succession (1) Continuity of States, 180; (2) Extinction of States and State Succession, 188, (i) General, 188, (ii) Canada, 194, (a) Effect of conquest by Great Britain and subsequent cession by France in 1763, 194, (b) Newfoundland, 197 PART III. STATE JURISDICTION

V. Forms of State Jurisdiction: Territorial and Personal VI. The Territory of States A) Acquisition of Territory B) Polar Regions (1) Arctic, 236; (2) Antarctic; 257 C) Air Space and Outer Space (1) Air Law, 259, (i) Historical Background, 259, (ii) International Civil Aviation Organization, 261, (a) General, 261, (b) Work, 263; (2) Outer Space, 267, (i) General, 267, (ii) The international nature of space activities, 268, (iii) List of the major legal problems to be solved by the nations of the world in space activities, 269, (iv) The solutions, 272, (v) Basic documents, 274 D) Land Frontiers of Canada E) Maritime Frontiers (1) General, 294, (i) Bays and Gulfs, 317, (ii) Straits, 348, (iii) Islands, 349, (iv) 1958 Geneva Convention on Territorial Sea and Contiguous Zone, 351; (2) Continental Shelf, 359 F) The Great Lakes—The Chicago Diversion—Boundary Waters (1) The Boundary Waters Treaty of 1909 and the International Joint Commission, 379; (2) Survey of Boundary Waters: Principal Rivers and Lakes, 388, (i) Lake Michigan and the Chicago Diversion, 388, (ii) Some major Canadian and American rivers, 414, (a) The Pigeon River, 414, (b) The Rainy River, 414, (c) St. Mary and Milk Rivers, 414, (d) The Niagara River and Falls, 414, (e) The St. Lawrence River, St. Lawrence Seaway, Richelieu Waterway, 415, (f) The Columbia River, 426, (g) The St. John River, 433

117 118



203 205 214 214 236 258

279 294




G) International Artificial Waterways


H) Servitudes


(1) The Suez Canal, 433; (2) The Panama Canal, 436; (3) The Kiel Canal, 440

VII. Nationality and Individuals in International Law A) Nationality (1) General Observations, 450; (2) Canadian Practice, 452, (i) Jurisdiction over "naturalization and aliens," in constitutional problems, 452, (ii) The Canadian Citizenship Act, 454, (a) Historical background, 454, (b) Acquisition of nationality, 456, (c) Naturalization, 457, (iii) Recognition of. changes of nationality by third States, 459, (iv) Effect of marriage on nationality, 460, (v) British subjects, 461, (vi) Double nationality, 461, (vii) Loss of citizenship, 462, (viii) Statelessness, 463, (ix) Proof of nationality, 468 B) Aliens (1) Admission of Aliens—Immigration, 469; (2) Deportation of Aliens, 473; (3) Status of Aliens in Canada in Time of Peace: Rights and Duties, 491; (4) Protection due to Aliens at International Law, 494 C) Nationality of Corporations D) Nationality of Ships and Aircraft (1) Ships, 499; (2) Aircraft, 501 E) Status of Indians and Eskimos in Canada (1) Indians, 502; (2) Eskimos, 519 F) Extradition—Rendition G) International Civil Procedure H) Asylum I) Human Rights and Fundamental Freedoms J) The Protection of Minorities VIII. Extent of State Jurisdiction A)


Territorially and Extraterritoriality of Laws (1) Territorial Jurisdiction, 554; (2) Extraterritorial Jurisdiction, 557; (3) Case Law, 558; (4) Protective Jurisdiction: The Contiguous Zone, 560 Jurisdiction over Vessels in Territorial Waters and the Contiguous Zone (1) Innocent Passage, 561; (2) Right of Distress, 576; (3) Hovering, 588; (4) Hot Pursuit, 600; (5) Foreign Vessels in Canadian Ports: Labour Unions, 611; (6) ADIZ-CADIZ, 618; (7) Violation of Foreign Territorial Waters, 623

C) Jurisdiction over Vessels on the High Seas (1) Freedom of the Seas, 625; (2) Illicit Trade—Arrest or Seizure on the High Seas, 630; (3) Collision on the High Seas, 632; (4) United Nations—1958 Convention on the High Seas, 634 D) Personal Jurisdiction and Criminal Law (1) Jurisdiction over Aliens with Respect to Crimes Committed Abroad, 644; (2) The Protective Principle, 644 E) Jurisdiction According to the Universal Principle: Piracy Jure Gentium F) Customary and Conventional Limitations Upon the Jurisdiction of States

450 450


494 499 501 519 524 535 541 553 554 554




652 658



(1) Rights and Privileges of Foreign States and Sovereigns, 658; (2) Immunities of Foreign States and Sovereigns or Heads of States, 661, (i) General, 661, (ii) Public ships, 662, (iii) Immunity from taxation, 681; (3) Rights, Duties, Privileges, and Immunities of Foreign Diplomats and Consuls, 708, (i) Diplomats, 708, (a) Vienna Convention 1961, 714, (b) Canada, 726, (i) Statutory material, 726, (ii) Exemption from income tax, 728, (iii) Remission of custom duties and excise taxes on imported articles, 730, (iv) Remission of excise duty, 732, (v) Remission of sales and excise taxes on certain goods purchased in Canada, 733, (vi) Diplomatic correspondence, 733, (vii) Province of Ontario, 735, (ii) Consuls, 746, (a) Vienna Convention 1963, 753, (b) Caselaw, 764; (4) Rights, Privileges, and Immunities of International Organizations, 768; (5) Visiting Forces, 777, (i) In the absence of Canadian legislation, 777, (ii) Special legislation, 788

G) The Conservation of the Living Resources of the Sea and Air

(1) Living Resources of the Sea, 789, (i) Canadian law, 789, (ii) Canadian international treaty legislation, 803; (2) Living Resources of the Air, 810 PART IV. INTERNATIONAL AGREEMENTS

IX. The Law of Treaties A) Introduction (1) Statutory material, 814; (2) Definition, 814 B) General (1) Nature, Form, Kinds, Contents, and Functions of Treaties, 814; (2) Power to Make Agreements—Constitutional Problems —Parties, 821; (3) Process of Treaty Making, 825, (i) Full powers, 825, (ii) Ratification, 827, (iii) Canada's treaty records, 831, (iv) Proof of treaties in Canadian courts, 833, (v) The British Commonwealth, 834; (4) When Does a Treaty Come into Force?, 835, (i) Ratification, 835, (ii) Retroactive effect, 836; (5) Reservations, 838; (6) Effect of Treaties, 847, (i) Inter partes,847, (ii) Third parties, 847; (7) Most-FavouredNation Clauses, 849; (8) Rights of Individuals under a Treaty, 851 C) Treaties and Municipal Law (1) Implementation of Treaties in Canada, 851, (i) Necessity of implementation by parliamentary action, 851, (ii) Methods of implementation: federal or provincial legislation, 860, (a) Empire treaties, 860, (b) Treaties not coming within the scope of section 132, 861, (c) Caselaw, 867; (2) Conflict between Statute and Treaty, 894


811 813 813 814


D) Interpretation of Treaties



Duration of Treaties (1) Termination by Operation of Law, 920, (i) War, 921, (ii) Change of circumstances, 926, (iii) Extinction of parties or change of parties, 931; (2) Termination by Act of the Parties, 932, (i) By mutual consent, 932, (ii) By denunciation, 934



The Work of the International Law Commission


PART V. THE INTERNATIONAL RESPONSIBILITY OF STATES X. State Responsibility and International Claims A) General Principles of International Responsibility B) Active Subjects of International Law

937 939 940 945



(1) Acts or Omissions for which a State is Internationally Responsible, 945, (i) Tortious conduct, 945, (ii) Breach of treaty, contract, or concession, 982, (iii) Confiscation, expropriation, nationalization, 985; (2) The Problem of Imputability, 1018 C) The Passive Subjects of International Law (1) Who May Bring a Claim, 1022; (2) Nationality of Claimant, 1024 D) Miscellaneous Substantive and Procedural Matters (1) Exhaustion of Local Remedies, 1027; (2) Waiver of Diplomatic Protection: The Calvo Clause, 1031; (3) Defences: Waiver and Compromise of Claims, 1035 E) The Duty to Make Reparation: Nature and Measure of Damages PART VI. DISPUTES AND HOSTILE RELATIONS BETWEEN STATES XL Pacific Settlement of International Disputes A) Settlement through the United Nations (1) The Structure of the United Nations, 1047; (2) The Settlement of Disputes under the United Nations Charter. 1049, (i) Pacific settlement, 1050, (ii) Forcible settlement, 1052 B) Pacific Settlement under the Charter of the Organization of American States C) Bilateral Settlement D) Good Offices—Mediation E) Negotiation F) Commissions of Inquiry G) Conciliation H) Arbitration (1) General, 1068; (2) Permanent Court of Arbitration, 1072; (3) Illustrations, 1075; (4) Res judicata and Revision of Awards, 1079 I) Judicial Settlement. The International Court of Justice (1) Statute, 1089; (2) Rules of Court, 1090; (3) Members of the Court, 1090; (4) Sessions, 1090; (5) Organization, 1090; (6) Application of International Law, 1091; (7) Decisions and Voting Procedure, 1091; (8) The Court's Jurisdiction, 1091, (i) Competence, 1091, (ii) Jurisdiction as an advisory body, 1099, (iii) Other activities, 1101 XII. Forcible or Coercive Means of Settlement A) Hostile Measures Short of War (1) Severance of Diplomatic Relations, 1107; (2) Retortion, Retaliation, Reprisals, 1107; (3) Pacific Blockade—Quarantine, 1109; (4) Boycott, 1112; (5) Sanctions under the United Nations Charter, 1112 B) State and Effects of War (1) Legal Nature of War: Lawfulness, Self-Defence, 1112, (i) General, 1112, (ii) Canadian legislation, 1116, (iii) International legislation, 1118; (2) Declaration of War, 1119; (3) Land, Maritime and Air Warfare, 1122; (4) Belligerent Occupation, 1127; (5) The Treatment of the Wounded and the Sick, 1129; (6) Espionage, 1129; (7) The Regime of Prisoners of War, 1130; (8) Sanction of Laws of War: War Crimes, 1139, (i) Germany, 1139, (ii) Japan, 1149; (9) Civil War, 1152; (10) Termination of War as Distinguished from Termination

1022 1027

1038 1045 1047 1047

1060 1060 1061 1062 1064 1068 1068


1107 1107




of Hostilities, 1153; (11) Legal Effects of War (as between Enemies) on Public or Private Rights, 1155, (i) Sedition and treason, 1155, (ii) Enemy aliens: personal rights and liabilities, 1158, (iii) Property rights and liabilities, 1178, (a) Persons: enemy character, 1180, (b) Corporations, 1186, (c) Enemy property, 1192, (iv) War Claims, 1196 XIII. Neutrality A) General: Rights and Duties of Neutral States B) Neutral Nationals and Property in War, on Land, in the Air, and at Sea (1) Unneutral Service, .1223; (2) Contraband and Continuous Voyage, 1228; (3) Blockade, 1243; (4) Visit and Search, 1256; (5) Prize Courts—Law and Procedure, 1260; (6) Angary— Requisition of Neutral Vessel, 1275 C) Present Status of Neutrality—Neutrality in Time of Peace— Neutralism APPENDICES I. Canadian Citizenship Act II. Canadian Citizenship Regulations III. Immigration Act IV. Immigration Regulations V. Canada's International Representation VI. Canada Statutes VII Federal Statutory Orders and Regulations VIII. Multilateral Treaties to which Canada is a Party SELECTED BIBLIOGRAPHY INDEX OF CASES SUBJECT INDEX

1207 1207


1280 1285 1298 1306 1326 1340 1349 1354 1359 1376 1385

Principal Abbreviations Found in This Book A., Atlantic Reporter (US.) A. (2d), Atlantic Reporter, Second Series (U.S.) A.C., Law Reports, Appeal Cases, House of Lords and Privy Council (U.K.) A.-G., Attorney-General A.L.R., American Law Reports Annotated (U.S.) A.L.R. (2d), American Law Reports Annotated, Second Series (U.S.) Acton, Acton's Privy Council Reports (U.K.) Air L. Rev., Air Law Review (US.) A11E.R., All England Law Reports (U.K.) Alta., Alberta Alta. L.R., Alberta Law Reports (Can.) Am. Dec., American Decisions (U.S.) Am. J. Comp. L., American Journal of Comparative Law (U.S.) Am. J. Int. L., American Journal of International Law (U.S.) Am. Rep., American Reports (US.) Am. St. Rep., American State Reports (U.S.) Ann. Dig., See Annual Digest Annual Digest, Annual Digest of Public International Law Cases (U.K.) App. Cas., Law Reports, Appeal Cases, House of Lords and Privy Council (U.K.) App. Div., Appellate Division Reports (New York Supreme Court) (US.) App. Div. (2d), Appellate Division Reports, Second Series (New York Supreme Court) (US.) Arch. Cr. PL Ev. & Pr., Archbold's Criminal Pleading, Evidence and Practice (U.K.) B. & C., Barnewall & Cresswell King's Bench Reports (U.K.) B.C., British Columbia B.C.C.A., British Columbia, Court of Appeal B.C.R., British Columbia Reports (Can.) B.C.S.C., British Columbia, Supreme Court B.F.S.P., British and Foreign State Papers (U.K.) B.N.A., British North America B.T.S., British Treaties Series (U.K.) B.Y.B.I.L., British Year Book of International Law (U.K.) Barr., The Barrister (Can.) Bell's C.C., Bell's Crown Cases (U.K.) Beav., Beavan English Rolls Court Reports (U.K.) Bing., N.C., Bingham, New Cases (U.K.) Black, United States Supreme Court Reports (U.S.) Br. & For. St. Paps., British and Foreign State Papers (U.K.) Burr, Burrow, English King's Bench Reports (U.K.) C., Command Papers (U.K.) C.A., Court of Appeal C.A.N.W.T., Court of Appeal, Northwest Territories C.B. (N.S.), Common Bench Reports, New Series (U.K.) C.B.R., Canadian Bankruptcy Reports, annotated C.C., Quebec Civil Code C.C.A., United States Circuit Court of Appeals C.C.C., See Can. C.C. C.C.H., Commerce Clearing House C.C.P., Quebec Code of Civil Procedure C.E.D. Ontario or Western, Canadian Encyclopedic Digest, Ontario or Western



C. & K., Carrington ) Before negotiations are opened with the intention of concluding a treaty, steps should be taken to ensure that any of the other governments of the Empire likely to be interested are informed, so that, if any such government considers that its interests would be affected, it may have an opportunity of expressing its views, or, when its interests are intimately involved, of participating in the negotiations. "(c) In all cases where more than one of the governments of the Empire participates in the negotiations, there should be the fullest possible exchange of/views between those governments before and during the negotiations. In the case of treaties negotiated at International Conferences, where there is a British Empire Delegation, on which, in accordance with the now established practice, the Dominions and India are separately represented, such representation should also be utilised to attain this object. "(d) Steps should be taken to ensure that those governments of the Empire whose representatives are not participating in the negotiations should, during their progress, be kept informed in regard to any points arising in which they may be interested."] Form of Treaty Some treaties begin with a list of the contracting countries and not with a list of Heads of States. In the case of treaties negotiated under the auspices of the League of Nations, adherence to the wording of the Annex to the Covenant for the purpose of describing the contracting party has led to the use in the preamble of the term "British Empire" with an enumeration of the Dominions and India if parties to the Convention but without any mention pf Great Britain and Northern Ireland and the Colonies and Protectorates. These are only included by virtue of their being covered by the term "British Empire." This practice, while suggesting that the Dominions and India are not on a footing of equality with Great Britain as participants in the treaties in question, tends to obscurity and misunderstanding and is generally unsatisfactory. As a means of overcoming this difficulty it is recommended that all treaties (other than agreements between Governments) whether negotiated under the auspices of the League or not should be made in the name of Heads of States, and, if the treaty is signed on behalf of any or all of the Governments of the Empire, the treaty should be made in the name of the King as the symbol of the special relationship between the different parts of the Empire. The British units on behalf of which the treaty is signed should be grouped together in the following order: Great Britain and Northern Ireland and all parts of the British Empire which are not separate members of the League, Canada, Australia, New Zealand, South Africa, Irish Free State, India. A specimen form of treaty as recommended is attached as an appendix to,the Committee's Report. In the case of a treaty applying to only one part of the Empire, it should be stated to be made by the King on behalf of that part. The making of the treaty in the name of the King as the symbol of the special relationship between the different parts of the Empire will render superfluous the inclusion of any provision that its terms must not be regarded as regulating inter se the rights and obligations of the various territories on behalf of which it has been signed in the name of the King. In this connection it must be borne in mind that the question was discussed at the Arms Traffic Conference in 1925, and that the Legal Committee of that Conference laid it



down that the principle to which the foregoing sentence gives expression underlies all international conventions. In the case of some international agreements the Governments of different parts of the Empire may be willing to apply between themselves some of the provisions as an administrative measure. In this case they should state the extent to which and the terms on which such provisions are to apply. Where international agreements are to be applied between different parts of the Empire, the form of a treaty between Heads of States should be avoided. Full Powers The plenipotentiaries for the various British units should have Full Powers, issued in each case by the King on the advice of the Government concerned, indicating and corresponding to the part of the Empire for which they are to sign. It will frequently be found convenient, particularly where there are some parts of the Empire on which it is not contemplated that active obligations will be imposed, but where the position of the British subjects belonging to these parts will be affected, for such Government to advise the issue of Full Powers on their behalf to the plenipotentiary appointed to act on behalf of the Government or Governments mainly concerned. In other cases provision might be made for accession by other parts of the Empire at a later date. Signature In the cases where the names of countries are appended to the signatures in a treaty, the different parts of the Empire should be designated in the same manner as is proposed in regard to the list of plenipotentiaries in the preamble to the treaty. The signatures of the plenipotentiaries of the various parts of the Empire should be grouped together in the same order as is proposed above. The signature of a treaty on behalf of a part of the Empire should cover territories for which a mandate has been given to that part of the Empire, unless the contrary is stated at the time of the signature. [On this point the Resolution of the Imperial Conference of 1923 read as follows: "2. Signature. "(a) Bilateral treaties imposing obligations on one part of the Empire only should be signed by a representative of the government of that part. The Full Power issued to such representative should indicate the part of the Empire in respect of which the obligations are to be undertaken, and the preamble and text of the treaty should be so worded as to make its scope clear. "(Z?) Where a bilateral treaty imposes obligations on more than one part of the Empire, the treaty should be signed by one or more plenipotentiaries on behalf of all the governments concerned."] Coming into Force of Multilateral Treaties In general, treaties contain a ratification clause and a provision that the treaty will come into force on the deposit of a certain number of ratifications. The question has sometimes arisen in connection with treaties negotiated under the auspices of the League whether, for the purpose of making up the number of ratifications necessary to bring the treaty into force, ratifications on behalf of different parts of the Empire which are separate Members of the League should be counted as separate ratifications. In order to avoid any difficulty in future, it is recommended that, when it is thought necessary that a treaty should contain a clause of this character, it should take the form of a provision that the treaty should come into force when it has been ratified on behalf of so many separate Members of the League. We think that some convenient opportunity should be taken of explaining to the other Members of the League the changes which it is desired to make in the form of treaties and the reasons for which they are desired. We would also recommend that the various Governments of the Empire should make it



an instruction to their representatives at International Conferences to be held in future that they should use their best endeavours to secure that effect is given to the recommendations contained in the foregoing paragraphs. [On this point the Resolution of the Imperial Conference of 1923 read as follows: "(c) As regards treaties negotiated at International Conferences, the existing practice of signature by plenipotentiaries on behalf of all the governments of the Empire represented at the Conference should be continued, and the Full Powers should be in the form employed at Paris and Washington. "3. Ratification. "The existing practice in connection with the ratification of treaties should be maintained. II "Apart from treaties made between Heads of States, it is not unusual for agreements to be made between governments. Such agreements, which are usually of a technical or administrative character, are made in the names of the signatory governments, and signed by representatives of those governments, who do not act under Full Powers issued by the Heads of the States: they are not ratified by the Heads of the States, though in some cases some form of acceptance or confirmation by the governments concerned is employed. As regards agreements of this nature the existing practice should be continued, but before entering on negotiations the governments of the Empire should consider whether the interests of any other part of the Empire may be affected, and, if so, steps should be taken to ensure that the government of such part is informed of the proposed negotiations, in order that it may have an opportunity of expressing its views." The Resolution was submitted to the full Conference and unanimously approved. It was thought, however, that it would be of assistance to add a short explanatory statement in connection with part I (3), setting out the existing procedure in relation to the ratification of treaties. This procedure is as follows: (a) The ratification of treaties imposing obligations on one part of the Empire is effected at the instance of the government of that part: (b) The ratification of treaties imposing obligations on more than one part of the Empire is effected after consultation between the governments of those parts of the Empire concerned. It is for each government to decide whether Parliamentary approval or legislation is required before desire for, or concurrence in, ratification is intimated by that government. For the Canadian practice see infra, chapter ix on Treaties.] (b) Representation at International Conferences We also studied, in the light of the Resolution of the Imperial Conference of 1923 to which reference has already been made, the question of the representation of the different parts of the Empire at International Conferences. The conclusions which we reached may be summarized as follows: 1. No difficulty arises as regards representation at conferences convened by, or under the auspices of, the League of Nations. In the case of such conferences all members of the League are invited, and if they attend are represented separately by separate delegations. Co-operation is ensured by the application of paragraph I. 1. (c) of the Treaty Resolution of 1923. 2. As regards international conferences summoned by foreign Governments, no rule of universal application can be laid down, since the nature of the representation must, in part, depend on the form of invitation issued by the convening Government. (a) In conferences of a technical character, it is usual and always desirable that the different parts of the Empire should (if they wish to participate) be represented separately by separate delegations, and where necessary efforts should be made to secure invitations which will render such representation possible.



(b) Conferences of a political character called by a foreign Government must be considered on the special circumstances of each individual case. It is for each part of the Empire to decide whether its particular interests are so involved, especially having regard to the active obligations likely to be imposed by any resulting treaty, that it desires to be represented at the conference, or whether it is content to leave the negotiation in the hands of the part or parts of the Empire more directly concerned and to accept the result. If a Government desires to participate in the conclusion of a treaty, the method by which representation will be secured is a matter to be arranged with the other Governments of the Empire in the light of the invitation which has been received. Where more than one part of the Empire desires to be represented, three methods of representation are possible: (i) By means of a common plenipotentiary or plenipotentiaries, the issue of Full Powers to whom should be on the advice of all parts of the Empire participating. (ii) By a single British Empire delegation composed of separate representatives of such parts of the Empire as are participating in the conference. This was the form of representation employed at the Washington Disarmament Conference of 1921. (iii) By separate delegations representing each part of the Empire participating in the conference. If, as a result of consultation, this third method is desired, an effort must be made to ensure that the form of invitation from the convening Government will make this method of representation possible. Certain non-technical treaties should, from their nature, be concluded in a form which will render them binding upon all parts of the Empire, and for this purpose should be ratified with the concurrence of all the Governments. It is for each Government to decide to what extent its concurrence in the ratification will be facilitated by its participation in the conclusion of the treaty, as, for instance, by the appointment of a common plenipotentiary. Any question as to whether the nature of the treaty is such that its ratification should be concurred in by all parts of the Empire is a matter for discussion and agreement between the Governments. (c) General Conduct of Foreign Policy We went on to examine the possibility of applying the principles underlying the Treaty Resolution of the 1923 Conference to matters arising in the conduct of foreign affairs generally. It was frankly recognised that in this sphere, as in the sphere of defence, the major share of responsibility rests now, and must for some time continue to rest, with His Majesty's Government in Great Britain. Nevertheless, practically all the Dominions are engaged to some extent, and some to a considerable extent, in the conduct of foreign relations, particularly those with foreign countries on their borders. A particular instance of this is the growing work in connection with the relations between Canada and the United States of America which has led to the necessity for the appointment of a Minister Plenipotentiary to represent the Canadian Government in Washington. We felt that the governing consideration underlying all discussions of this problem must be that neither Great Britain nor the Dominions could be committed to the acceptance of active obligations except with the definite assent of their own Governments. In the light of this governing consideration, the Committee agreed that the general principle expressed in relation to Treaty negotiations in Section V (a) of this Report, which is indeed already to a large extent in force, might usefully be adopted as a guide by the Governments concerned in future in all negotiations affecting foreign relations falling within their respective spheres. [In this connection see The Resolution of the Imperial Conference of 1930 concerning the system of communication and consultation in relation to foreign affairs (Imperial Conference 1930, Summary of Proceedings, Cmd. 3717 pp. 27-29).]



(e) Channel of Communication between Dominion Governments and Foreign Governments We took note of a development of special interest which had occurred since the Imperial Conference last met, v/z., the appointment of a Minister Plenipotentiary to represent the interests of the Irish Free State in Washington, which was now about to be followed by the appointment of a diplomatic representative of Canada. We felt that most fruitful results could be anticipated from the co-operation of His Majesty's representatives in the United States of America, already initiated, and now further to be developed. In cases other than those where Dominion Ministers were accredited to the Heads of Foreign States, it was agreed to be very desirable that the existing diplomatic channels should continue to be used, as between the Dominion Governments and foreign Governments, in matters of general and political concern. [See also the Resolution of the Imperial Conference of 1930 concerning the channel of communication between Dominion governments and foreign governments, ibid., pp. 29-30.] ...

ii) Statute of Westminster AN ACT TO GIVE EFFECT TO CERTAIN RESOLUTIONS PASSED BY IMPERIAL CONFERENCES HELD IN THE YEARS 1926 AND 1930. 1931, 22 Geo. 5, c. 4, R.S.C., 1952, vol. vi, p. 265 [11 December, 1931.] Whereas the delegates of His Majesty's Governments in the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, at Imperial Conferences holden at Westminster in the years of our Lord nineteen hundred and twenty-six and nineteen hundred and thirty did concur in making the declarations and resolutions set forth in the Reports of the said Conferences: And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom: And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion: And whereas it is necessary for the ratifying, confirming and establishing of certain of the said declarations and resolutions of the said Conferences that a law be made and enacted in due form by authority of the Parliament of the United Kingdom: And whereas the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland have severally requested and consented to the submission of a measure to the Parliament of the United Kingdom for making such provision with regard to the matters aforesaid as is hereafter in this Act contained: Now, therefore, be it enacted by the King's most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— 1. In this Act the expression "Dominion" means any of the following Dominions, that is to say, the Dominion of Canada, the Commonwealth of



Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland. 2.—(1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion. (2) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion. 3. It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation. 4. No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. 5. Without prejudice to the generality of the foregoing provisions of this Act, sections seven hundred and thirty-five and seven hundred and thirty-six of the Merchant Shipping Act, 1894, shall be construed as though reference therein to the Legislature of a British possession did not include reference to the Parliament of a Dominion. 6. Without prejudice to the generality of the foregoing provisions of this Act, section four of the Colonial Courts of Admiralty Act, 1890 (which requires certain laws to be reserved for the signification of His Majesty's pleasure or to contain a suspending clause); and so much of section seven of that Act as requires the approval of His Majesty in Council to any rules of Court for regulating the practice and procedure of a Colonial Court of Admiralty, shall cease to have effect in any Dominion as from the commencement of this Act. 7.—(1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder. (2) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces. (3) The powers conferred by this Act upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively. 8. Nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia or the Constitution Act of the Dominion of New Zealand otherwise than in accordance with the law existing before the commencement of this Act. 9.—(1) Nothing in this Act shall be deemed to authorise the Parliament of the Commonwealth of Australia to make laws on any matter within the authority-of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia. (2) Nothing in this Act shall be deemed to require the concurrence of the Parliament or Government of the Commonwealth of Australia in any law made by the Parliament of the United Kingdom with respect to any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, in any case where it would have been in accordance with the constitutional practice existing before the commencement of this Act that the Parliament of the United Kingdom should make that law without such concurrence. (3) In the application of this Act to the Commonwealth of Australia the request and consent referred to in section four shall mean the request and consent of the Parliament and Government of the Commonwealth.



10.—(1) None of the following sections of this Act, that is to say, sections two, three, four, five and six, shall extend to a Dominion to which this section applies as part of the law of that Dominion unless that section is adopted by the Parliament of the Dominion and any Act of that Parliament adopting any section of this Act may provide that the adoption shall have effect either from the commencement of this Act or from such later date as is specified in the adopting Act. (2) The Parliament of any such Dominion as aforesaid may at any time revoke the adoption of any section referred to in subsection (1) of this section. (3) The Dominions to which this section applies are the Commonwealth of Australia, the Dominion of New Zealand and Newfoundland. 11. Notwithstanding anything in the Interpretation Act, 1889, the expression "Colony" shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of this Act, include a Dominion or any Province or State forming part of a Dominion. 12. This Act may be cited as the Statute of Westminster, 1931. NOTES Oppenheim, in International Law (by Lauterpacht, 7th ed., 1948, vol. I), says at p. 185: "The Statute of Westminster, 1931, gave expression to the principle of equality of status and the fully autonomous statehood of the Dominions by removing any lingering remnants of their formal dependence upon the Imperial Parliament. . . ." Note however that the new international status of the old dominions depended much less on the Statute of Westminster than upon the complete divisibility of the Royal Prerogative. The Statute of Westminster did not deal directly with the prerogative; it affected the capacity of parliaments to legislate.

The British Commonwealth of Nations, as a political organization, completely defies classification. In its structure it is unique in all history. As the Imperial Conference of 1926 declared, it bears no real resemblance to any other political organization which now exists or has ever yet been tried. To define the British Commonwealth is practically impossible. To describe it is scarcely less difficult. It is a "hybrid State" of a nature "eminently calculated to shock the susceptibilities of international jurists." Or, perhaps, it is not a single State but a system of States. Its own leaders proclaim: "We are a whole world by ourselves." See Stewart, Treaty Relations of the British Commonwealth (1939), p. 3. Sovereign independence for each member of the Commonwealth and equality among all members, combined with free and voluntary association for purposes of consultation and co-operation are the basic principles underlying the British Commonwealth. Scott, the End of Dominion Status (1945), 23 Can. Bar Rev. 725, says at p. 741: ". . . 2. The 'British Commonwealth of Nations' is not a state. It has no single personality either in international or municipal law and no single government capable of acting for the whole. The name is merely a convenient way of referring to a particular association of nations—Great Britain, Canada, Ireland, South Africa, Australia, and New Zealand, and their respective dependencies. It belongs rather to the category of collective names as 'the Pan-American Union' or the The United Nations.' The term 'British Empire' should be restricted to Great Britain and her empire (India, the Colonies and Protectorates) in which case it refers to a specific entity in international law.



"3. The independent nations in the Commonwealth are still 'freely associated' together by reason of their desire so to remain, and this association finds symbolic expression in their use of the common Crown for certain purposes, in their retention of an underlying common nationality, and in a number of generally accepted modes of behaviour vis-a-vis one another. A nation outside the Commonwealth is no more independent than one inside, though it is free from the results of this association. "4. Since Dominion status has been transformed into national status any offer of 'Dominion status' to a non-self-governing part of the Commonwealth is impliedly an offer of complete independence of action. There is nothing now withheld in such a grant. The acceptance of the status would, however, imply a continued association with the other members of the Commonwealth, but only on terms defined by the member itself and terminable at its sole discretion. "5. The use of the common Crown is not an essential condition of membership in the Commonwealth. Ireland has abolished it as a part of her internal constitution. A republic could be associated with other monarchies if such were the agreement. The use of the Crown as a symbol of association does not restrict the freedom of action of the nation states within the Commonwealth, though it does sometimes confuse the citizens with regard to the entity to which they owe allegiance. "6. The oath of allegiance of public officers in each of the member nations is an oath to the Crown in relation to and as part of the constitution of that nation. It is not an oath to the Crown generally and in every aspect. Hence it is not a violation of the oath of allegiance to urge the Crown to adopt any particular policy (e.g. belligerency or neutrality) vis-a-vis the nation of which the proponent is a citizen, even if the Crown adopts the opposite policy elsewhere. Treason can only be committed against the national crown. "7. The practice of excluding members of the Commonwealth from the application of the most-favoured-nation clause in commercial treaties, originally justified on the ground that the members were not separate states, can no longer be so justified. "8. Any member of the Commonwealth may make whatever treaties, alliances, or unions it desires with any other non-British state. The offer by Great Britain of complete union with France in 1940 is an example of the freedom possessed by the individual members. There was no previous Commonwealth agreement on this action, no assent from the other members of the group. The union would not on this account have been illegal in any respect. Similarly, Canada's Joint Defence agreement with the United States of August, 1940, required no Commonwealth approval. Members of the Commonwealth, however, are by agreements of Imperial Conferences expected to inform one another of negotiations likely to be of mutual interest. . . . "10. Full independence of action, in war as in peace, is possessed by all members of the Commonwealth. The common underlying citizenship is no legal obstacle to partial belligerency in the Commonwealth group. "11. When the nations of the Commonwealth ratify the charter of the United Nations it would be improper for them to refuse to apply the rules of that association to themselves in their relations with one another. The inter se doctrine, by which the relations of members of the Commonwealth are^ supposed to be exempt from the principles and procedures of International Law, is now so out of line with the facts and so out of harmony



with the spirit of mutual trust and dependence among peoples that it should be totally abandoned. In the past its principal consequences have been: (a) refusal to register inter se treaties with the World organization, (b) refusal to allow a treaty made by two or more members with a foreign power to apply between themselves, (c) refusal to submit inter se disputes to the World Court, (d) refusal to contemplate enforcement of sanctions against a fellow member violating the covenant. All these practices lessen the authority of the World organization. "12. The British Commonwealth, being an association of states sui generis, offers to the world no model of international organization. It is not a type on which a new world order can be built. . . . Its surviving institutions are a remnant of a much greater unity and not the result of an effort toward a new and closer association. It has none of the common organs of government which a world society would need. Its strength lies in its many examples of purely voluntary cooperation based on sympathy, tradition, and consent. It also provides useful examples of techniques by which dependent peoples may reach national status." NOTES As to the inter se doctrine, see Oppenheim, International Law (by Lauterpacht, 7th ed., 1948) vol. 1, p. 89 et seq. Stewart, in Treaty Relations of the British Commonwealth of Nations (1939), states at pp. 328-329: "The inter se doctrine of the British Commonwealth maintains, in its essence, that the relations between the members of the Commonwealth are sui generis and are more intimate than the relations obtaining between members of the international community generally. According to one view the relations of the members of the British Commonwealth inter se are, as a result of the common allegiance to the Crown, incapable of the character of international relations. Others hold that while the common Crown does not prevent these relations from being international in character, it is nevertheless undesirable that they should be so regarded. Although their relations, according to this view, are not incapable of being international, the members of the Commonwealth by common agreement and with the acquiescence of foreign states apply the inter se doctrine to that effect. From whatever aspect the doctrine may be considered, its essence is that the relations between members of the British Commonwealth are of a different character from the relations between states or even from the relations between a foreign state and the members of the Commonwealth. "From this doctrine flow certain important corollaries respecting the relations of the members of the Commonwealth with one another and with foreign countries. Since their relations inter se are not international, the members of the Commonwealth cannot exchange ambassadors or ministers with each other. Instead they may exchange only High Commissioners. Nor are inter-Commonwealth disputes, however violent, international. These disputes must, therefore, be settled without the participation of foreigners. In the sphere of treaty making the doctrine implies, first, that engagements concluded between different members of the Commonwealth are not treaties; secondly, that the provisions of treaties concluded between the members of the Commonwealth and foreign countries do not regulate the rights and obligations of the members of the Commonwealth inter se."

In December, 1952, the prime ministers and other representatives of Commonwealth countries assembled in London considered the form of the Royal Style and Titles and recognizing that it was not in accordance with present constitutional relations within the Commonwealth, concluded that it would be in accord with the established constitutional position for each member country to use for its own purposes a form suitable to its particular circumstances, while retaining a substantial element common



to all. As a result of this meeting the Parliament of Canada passed an Act Respecting the Royal Style and Titles, S.C., 1952-53, c. 9. Section 1 of the Act establishes for Canada the following Royal Style and Titles: "Elizabeth the Second by the Grace of God of the United Kingdom, Canada and Her Other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith." In England, see The Royal Titles Act, 1953, 1 & 2 Eliz 2, c. 9. As of December 1964, the members of the British Commonwealth are: The United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, India, Pakistan, Ceylon, Ghana, Cyprus, Nigeria, Sierra Leone, Tanzania (formerly Tanganyika and Zanzibar), Jamaica, Trinidad and Tobago, Uganda, Federation of Malaysia, State of Malta, Kenya, Malawi (formerly Nyasaland), and Zambia (formerly Northern Rhodesia). 2. Evolution of Canada's Status as an International Person Excerpt from Cohen, Some International Law Problems of Interest to Canadian Lawyers (1955), 33 Can. Bar Rev. 389, at pp. 392-397 (footnotes omitted): The question of Canada's status as an international person—her "sovereignty" and independence—raises significant and related issues of international law and Commonwealth and Canadian constitutional law. There is a "mystique" attaching to "sovereignty" that renders it an increasing liability in any political or legal discourse struggling for clarity. What really is intended to be expressed internationally by this "fighting word" is the relatively simple notion of independence. And since states are the principal subjects, or "persons", of the international legal order, and since one element of such personality is independence and the correlative capacity for undertaking international obligations, Canada's status as such a person remains a proper question to explore—particularly because of her imperial origins, Commonwealth connections and, finally, her special constitutional structure as a federal state. While Canadian sovereignty or independence has been an effective political fact for over a generation—dramatized by Sir Robert Borden's independent role at Versailles in 1919 and the signing of the treaty on behalf of Canada itself—a number of legal issues have complicated the situation as it might be viewed by third states unfamiliar with the malleability of the Commonwealth tie and the forms of its imperial procedures. Until the end of World War I, and well into the nineteen-twenties, the cumulative effect of the Colonial Laws Validity Act (1865), 28 & 29 Viet. c. 63; the continuing legislative supremacy of the Imperial Parliament in fact as well as in theory; the limitations on the Parliament of Canada to enact legislation having extraterritorial legal effects; the supreme role of the Privy Council as the court of final appeal in all Canadian matters; the consequences of the inter se doctrine that excluded from intra Commonwealth effect multi-lateral treaties to which the Dominions were party; the ambiguities in the status and rights of the Governor General of Canada, with particular reference to his reserve powers and his "instructions"; the application to Canada of treaties executed by the United Kingdom, albeit now largely at Canada's request; the negligible role of Canada in international affairs and the absence of many missions overseas—all these may have combined to raise doubts among some states as to the true technical measure of Canadian sovereignty abroad or independence at home.



Even so, the flexible range of meanings attaching to the concept of international personality was leaving only a few reservations as to the juridical status of Canada in the family of nations. These doubts have been almost wholly dissipated by the fundamental constitutional changes of the past thirty-five years in the Commonwealth, as well as by the changes in the facts of Canada's international activity. The Statute of Westminster repealed die Colonial Laws Validity Act and thus erased the limiting effect on Canadian legislation of the doctrine of repugnancy (supra). The power to legislate with extraterritorial effects was now clearly within the competence of Canada. Criminal and civil appeals to the Privy Council were abolished in two stages, in 1933 (S.C., 1933, c. 53, s. 17) and 1949 (S.C., 1949 (2nd sess.), c. 37). Legislative supremacy has been vested in the Parliament of Canada, since 1949, for all purposes of amending the British North America Act in areas of existing federal jurisdiction; and the Imperial Parliament presumably has divested itself of future authority, albeit under a theoretically repealable statute. Treaties are no longer made for Canada by the United Kingdom government and cessation of requests for them has converted this former power into a presently languishing right, disappearing by desuetude. The inter se doctrine no more meets the practical need of inter-Commonwealth relations and it is doubtful whether this rule now should be considered as in force—although Canada took no chances with the question in the case of the Warsaw Convention limiting the liability of aircraft to passengers on international flights. Here, by a series of orders in council, the convention clearly was made applicable to flights between Canada and the United Kingdom. The Seals Act of 1939 (S.C., 1939, c. 22) and the changes in the office of the Governor General, in 1947 (R.S.C., 1952, vol. vi, p. 305, Appendix No. 35), together with evolving constitutional conventions generally, have eliminated whatever narrow legal doubts may have persisted over the position of the Governor General or his subjection to "instructions" from the Queen or any agency of the Imperial government. And while in strict theory the right to disallow Canadian legislation may yet vest in the Queen and Council, and a power to reserve bills for the signification of the Queen's pleasure legally—but not conventionally—may remain with the Governor General, these have long lost their de facto meaning and effectiveness. Only two matters remain to qualify the technical, juridical position of Canadian sovereignty and both of these are more relevant to the Canadian constitutional position, municipally, than to Canada's legal status internationally. The first is the continuing "legal" power of the Imperial Parliament to enact laws on any subject that would have to be applied by a Canadian court if the statutes made clear their applicability to Canada. To this technical, if unlikely position should be added the narrower, more difficult constitutional dilemma arising from the fact that the Imperial Parliament alone continues to have authority to amend those sections of the British North America Act relating to matters assigned to the provinces. This condition remains because of the failure of the 1950 constitutional conference to agree on an acceptable formula for a wholly Canadian amending procedure. The second major difficulty, from the international-law view, is more serious, namely, the inability of Canada as an international person to execute conventional—treaty—obligations when the subject matter of the agreement falls outside the existing and probable jurisdiction of the Parliament of Canada, as declared in the British North America Act and



interpreted by the courts. The combined effect of the Radio ([1932] A.C. 304) and Labour Convention ([1937] A.C. 326) cases has been to make it doubtful if there is any authority in Parliament to implement international conventional obligations unless the subject matter already comes within the constitutional competence of Parliament—save, perhaps, for treaties imperially executed by the United Kingdom Government on behalf of Canada, and these no longer are requested for any of the purposes of Canada's international legal relations. Now, while the persisting legislative supremacy of the United Kingdom Parliament—de jure for all purposes but in fact used today only for nonfederal matters in the British North America Act—may affect the sense of Canada's full juridical independence, it really has no international significance. On the other hand, the inability of the Parliament of Canada to implement international agreements except where the subject matters of the obligations already are within its constitutional jurisdiction has a limiting effect on the international position of Canada in fact if not in external legal posture. Today in many matters of economic and social policy—prices, production, industrial standards, civil liberties, for example —parallel provincial legislation may be necessary to enable Canada to enforce municipally any international undertakings in these fields. The administrative and political cumbersomeness as well as the negotiating inconvenience of this position at once will be evident. Canada has already its "Bricker Amendment" and it may require a major constitutional reappraisal to resolve this difficulty, a difficulty second in gravity only to the deeper general question of the amending power in non-federal matters. Finally, it may be said that the more persuasive tests of Canada's international status are the facts of her political behaviour today among the nations. Here the multiplication of missions, the burgeoning of her external-affairs working force and the undertaking of serious international security, political and welfare obligations all combine to suggest a degree of participation and acceptance in the affairs of the nations consistent only with the fullest independence and sovereign authority. And these obligations have been assumed with a mounting sense of confidence on the part of a rising new world power sheltered, but not shadowed, by its great neighbour. Scott, The End of Dominion Status (1945), 23 Can. Bar Rev. 725, (1944), 38 Am. J. Int. L. 34: A crucial test of the theory of equality of status in the British Commonwealth was bound to turn on the right of the Dominions to separate action in time of war. Only if they had the same power as Great Britain to decide whether or not they would enter a war could it be said they were in any real sense her equals in international status. Ever since their territories had become part of the British Empire they had followed the parent state automatically in and out of wars. While the right of colonies to decide the extent of contribution in men and materials was well accepted before 1931, there was no colonial control whatever over (1) Imperial policy which led to war or (2) the declaration of war which resulted in the legal commitment to the status of belligerent. The obligations and the law of Empire included unity in the face of Britain's enemies, and the colonies did not select the enemies. The question was academically debated in the 1930's whether "Dominion status" in this regard was changed by the Statute of Westminster. Responsible leaders in Ireland and South Africa could produce good reasons for



saying that their countries possessed the sovereign power of neutrality. The Irish constitution, like that of the United States, requires the consent of the legislature to a declaration of war, and the South African legislation of 1934 stood as proof of nationhood, though the issue was complicated by the agreement to allow the British fleet the use of Simonstown. Hence when Ireland decided to remain neutral in September 1939 the position— though not the policy—was accepted on all sides, and no one felt that secession from the Commonwealth had occurred. So, too, it is probable that South Africa's neutrality would have been equally respected if Premier Hertzog's policy to that effect had not been defeated in the Union Parliament. South Africa issued her own separate declaration of war on September 6, and thus became the first British Dominion to exercise this new right. Equally strong reasons pointed to the absence of the right to neutrality in Australia and New Zealand. They had not adopted the Statute of Westminster, and had never made an attempt either by domestic or international action to assert the right. They had adopted no legislation affecting the distribution of the royal prerogative over foreign affairs. Both these Dominions were so sure of their determination to stand beside Britain under any circumstances that they were indifferent to the element of legal subordination implicit in their position. Hence it is not surprising that on September 3, 1939, when Britain declared war on Germany, Mr. Menzies said to the people of Australia "it is my melancholy duty to announce officially that in consequence of Germany's persistence in her invasion of Poland, Britain has declared war and as a result Australia is at war also." ("Constitutional authorities in Australia have on the whole considered that when the King is at war all his dominions are at war. There was, therefore, no declaration of war by Australia on Germany." Round Table, December 1939, p. 191.) Australia was at war "as a result" of Britain's and not her own declaration. The same was true of New Zealand. (See Robert B. Stewart, "The British Commonwealth Goes to War," in The American Foreign Service Journal, Vol. 16, No. 12, December 1939, p. 645 ff. A New Zealand writer has however taken the view that his country declared war herself (F. L. W. Wood, New Zealand in Crisis, 1939, p. 30) but this seems untenable.) Neither country had a representative in Berlin. Unable to notify her enemy directly of the fact that she intended to make war, New Zealand requested the British Government to "take any steps that may be necessary to indicate to the German Government that His Majesty's Government in New Zealand associate themselves in this matter with the action taken by His Majesty's Government in the United Kingdom." South Africa and Ireland were the only Dominions which had direct representation in Berlin in 1939. In Canada, too, the prevailing opinion at the outbreak of the war was that no neutrality was possible. This was the expressed opinion of Mr. Ernest Lapointe, then Minister of Justice, and a number of steps taken by the Canadian Cabinet between September 3 and September 10 (the respective dates of Great Britain's and Canada's declarations of war), such as the arrest of German nationals and the prohibition of trade with the "enemy," clearly implied in automatic belligerency. Indeed the decision to issue a separate declaration of war was an afterthought in Canada; it was reached by Mr. King and his Cabinet some time after Parliament met on September 7, which was a week after the government had begun to take steps to put Canada on an active war footing. Pressure outside the



Cabinet (particularly from the Imperialist group), President Roosevelt's exception of Canada from the application of the Neutrality Act and the element of confusion regarding the exact legal position of Canada made it necessary to take seriously the constitutional issue which for so long had been treated by certain Canadians as "academic." A formal declaration of war alone could clarify the situation. This was issued separately for Canada by the Governor-General, after telegraphic approval had been given by the King in London, and a state of war with Germany was proclaimed as from 10 September,-—not as from 3 September, the date of Britain's declaration. By this time Sir Neville Henderson, the British Ambassador to Germany, had of course left Berlin, so that Canada's decision was not formally transmitted to the German government. Thus September, 1939, revealed two things about the constitution of the Commonwealth. It showed that Dominion status was a term still applied to some Dominions which could be made belligerents by the mere action of the British government, in which they had no representation. This was the surviving colonialism. But it showed also that Dominion action could end and in some cases had ended, that situation. Ireland emerged with full recognition as an independent state. An Irish charge d'affaires, with credentials standing in the name of George VI, continued in Berlin, and the German and other Axis ministers to Ireland remained at their posts throughout the war. South Africa also, it can scarcely be doubted, was making her own decision when she chose to declare belligerency on September 6, and was not merely deciding the degree of her participation. In Canada, belligerency of September 3 was automatically accepted by most people, and apparently at first by the government (notwithstanding Mr. King's later speeches to the effect that Canada entered the war without prior commitment); but the separate declaration of war one week later was a new constitutional claim which announced to the world that the right of sovereign choice on this point was henceforth being assumed by the Canadian Government. In Australia and New Zealand there was obviously an acceptance of the fact of automatic belligerent status resulting from the British declaration. India clearly had no independent choice in the matter. After September 1939 the practice of separate Dominion declarations of war became more general. In most cases these were timed to coincide very closely if not exactly with a British declaration of war, but this would be expected as part of a joint war strategy. Canada's declaration of war with Japan, however, dates from December 7, 1941, one day before either Britain or the United States declared war. Australia declared war on Japan on December 9, the declaration being made retroactive to 5 p.m. on December 8. In this instance she made the "striking constitutional innovation" of declaring war herself after specific authorization from His Majesty, thus bringing herself into line with Canadian and South African practice for the first time. In declaring war on Finland, since there was no legation in Helsinki, the Australian government asked the American Embassy to forward the declaration to the Finnish foreign minister— which necessarily involves United States recognition of the Commonwealth's capacity to declare war. Ireland persevered in her neutrality throughout the new conflicts. These and other instances would seem clearly to establish that the power to make war and peace is now vested in the Dominions as fully as in any independent nations. For Canada the original purpose of the Thorson Bill, which Mr. King would not accept



when introduced into the Canadian Parliament in 1939, appears to have been achieved. Since Canada, South Africa, Australia, and Ireland have all exercised the right of defining their enemies, and since other nations have taken cognizance of the practice, the legal power can no longer be denied to any Dominion—not even to New Zealand, though she has not yet used it. The common citizenship has not interfered with this freedom of choice. It is noteworthy, also, that Australia, New Zealand, and Canada have steadily increased their diplomatic services since the war began. Canada has not only sent five new High Commissioners and twelve new Ministers abroad but has begun the establishment of Consulates, as in Greenland, St. Pierre-Miquelon, and New York; beginning in 1943 she also raised her Legations in Washington and elsewhere to the status of Embassies. NOTES "In the years prior to the World War [I] the Dominions had attained practically unrestricted freedom in the realm of commercial and technical treaties. Yet no comparable freedom existed with respect to political treaties. From 1880 the Dominions were no longer automatically bound by British commercial treaties, but were given the right of contracting in where they so desired. Similarly, after 1900 they were given the right of withdrawing from, or contracting out of, British commercial treaties at their own option. In essentially political relations—matters of high policy—however, the Dominions were still in the same position as they were prior to 1880 with regard to commercial relations. British treaties were automatically applicable to the Dominions, which were not even consulted concerning the terms of such treaties. No opportunity existed for Dominion adherence to British treaties according to their own choice. Nor was there any thought of permitting them to withdraw from or contract put of the obligations of such treaties. In political relations with foreign states—if one may draw an arbitrary distinction between commercial and political matters, a distinction which in modern times has become increasingly obscure—the Empire was still a single unit. The conduct of high policy was considered to be the function of the Imperial Government alone. This fact was inevitably reflected in the treaty practice of the times. ". . . The Anglo-Japanese Alliance, the Anglo-French Entente, and the numerous conventions resulting from the First and Second Hague Conferences in 1899 and 1907 respectively were all concluded by the Imperial Government without consultation with the Dominions in any way. There were, of course, certain instances of political treaties prior to the War in respect of which the Dominions were given an opportunity to tender their advice, or from the application of which they were exempted—as was the case with certain commercial treaties prior to 1880. The more general political obligations, however, particularly in matters of war and peace, the Dominions shared completely and inseparably with the Imperial Government." (Stewart, Treaty Relations of the British Commonwealth (1939), pp. 133, 135.) The Halibut Convention of March 2, 1923, between Canada and the United States (43 U.S. Stat. 1841) was the first treaty negotiated and signed by Canadian representatives without British participation. "The procedure followed in the conclusion of the Halibut Fisheries Treaty of [1923] between Canada and the United States marks a change of policy and a new departure from the normal procedure. In late 1922 the treaty was drafted by the State Department at Washington and forwarded to Ottawa through the British Ambassador at Washington. With the negotiations completed and the treaty ready for signature, the Canadian Government, by a telegram of January 16, 1923, from the Governor-General to the Colonial Secretary, requested that the Secretary of State for Foreign Affairs be informed of their desire to have the necessary full powers issued to Mr. Ernest Lapointe to enable him to sign the treaty on behalf of the Dominion. (Correspondence



Halibut Fisheries Treaty, Canada, Sessional Papers, No. Ilia, A. 1923. This paper contains all correspondence, communications and documents, etc., and also the full powers issued, in connection with the treaty.) Such full powers were issued, and—following the traditional procedure—the British Ambassador was instructed to sign the treaty in association with Mr. Lapointe. The latter move brought an urgent reply from Ottawa. In asking that full powers be issued to Mr. Lapointe, the Dominion Ministers had proceeded on the assumption that he would sign the treaty alone and not in association with the British Ambassador, and they expressed considerable surprise that a different procedure was now contemplated by the British Government. They took the view that 'the Treaty being one of concern solely to Canada and the United States, and not affecting in any particular any imperial interest, the signature of the Canadian Minister should be sufficient, and they would respectfully request that His Majesty's Ambassador at Washington be instructed accordingly.' As a result of this protest a change of instructions was telegraphed to the Ambassador at Washington. The treaty, therefore, bears only the signatures of Charles Evans Hughes and of Ernest Lapointe, the latter signing the treaty by virtue of full powers issued to him by His Majesty on advice coming ultimately from the Canadian Government but directly through United Kingdom Ministers." (Ibid.)

3) Judicial Acknowledgment See In the Matter of Legislative Jurisdiction over Hours of Labor, [1925] S.C.R. 505; Re the Regulation and Control of Aeronautics in Canada, [1932] A.C. 54; Re Regulation and Control of Radio Communications in Canada, [1932] A.C. 304; A.G. Canada v. A.G. Ontario (Reference Re Weekly Rest), [1936] S.C.R. 461, [1936] 3 D.L.R. 673; P.C.: [1937] 1 D.L.R. 673, [1937] A.C. 326, all reported infra pp. 867-894. Conclusion Today, as Professor Scott (op. cit.) points out: "Dominion status has evolved into complete national independence. As a term descriptive of the states members of the Commonwealth, the word 'Dominion' is therefore obsolete and confusing. It has never been applicable to Great Britain. It should be abandoned and section 1 of the Statute of Westminster ought to be amended accordingly." That the Canadian constitution cannot presently be amended or repealed otherwise than by a statute of the Parliament of the United Kingdom, except as has been provided by the 1949 amendment of the British North America Act, is not inconsistent with the sovereignty of Canada. Canadian authorities possess the ultimate control in fact, and this is the reason that despite the limitations just mentioned, foreign States have accorded recognition to Canada since the first World War by accepting her as a member of international organizations, by entering into treaties with her, and by exchanging diplomatic representatives. For an amendment to the formula that will "repatriate" the Canadian constitution, see the Favreau bill, Oct. 1964, and (1965), 43 Can. Bar Rev. 262. D) DEPENDENT STATES, MANDATES, TRUST TERRITORIES, ETC. Selected Bibliography. Hackworth, Digest of International Law (1940), vol. 1, pp. 74, 77, 79, 102-105; Whiteman, Digest of International Law (1963), vol. 1, pp. 430, 598, 731; Wright, Mandates under the League of Nations (1930); Hall, Mandates, Dependencies, and Trusteeship (1948); Leeper, Trusteeship Compared with Mandate (1951), 49 Mich. L. Rev. 1199; Hudson, The Common Interpretation of the Mandates of International Law (1951), Proc. Am. Soc. Int. L. 44; International Status of South-West Africa, Advisory Opinion, I.C.J. Reports 1950, 128; Voting Procedure on Questions Relating to



Reports and Petitions Concerning the Territory of South-West Africa, Advisory opinion, I.C.J. Reports 1955, 67; Admissibility of Hearings of Petitioners by the Committee on South-West Africa, Advisory opinion, I.C.J. Reports 1956, 23; South-West Africa cases (Ethiopia v. South Africa, Liberia v. South Africa), preliminary objections I.C.J. Reports 1962, 319; Kahn, The International Court's Advisory Opinion on the International Status of South-West Africa (1951), 4 Int. L.Q. 78; Charter of the United Nations chap. XII, articles 75-91. United Nations General Assembly Resolutions on the Question of South-West Africa; No. 1702 (XVI) December 19, 1961; 1805 (XVII) December 14, 1962; 1899 and 1900 (XVIII) November 13, 1963.

E) INTERNATIONAL PERSONS OTHER THAN STATES 1) The United Nations The United Nations represents the second attempt on the part of the States of the world to organize themselves into a true community of states, wherein the security of each member would be safeguarded not by itself alone but by the whole community. The first such attempt was the League of Nations. With the start of World War II there was general agreement that the League experiment was a failure. However, such a realization did not result in the abandonment of the idea of an international organization to ensure world security. The reverse was true. On June 12, 1941, Great Britain, Canada, Australia, New Zealand, the Union of South Africa, and a number of European governments-in-exile issued the London Declaration, which stated that: "The only true basis of enduring peace is the willing cooperation of free peoples in a world in which, relieved of the menace of aggression, all may enjoy economic and social security." The theme was repeated a few months later in the Atlantic Charter of August 14, 1941. In it the United States and the United Kingdom stated: "Clause C. After the final destruction of Nazi tyranny, we hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want." There was nothing specific in either the London Declaration or the Atlantic Charter about the mechanics of preserving peace among the States following the end of the war. Specification of means was left to the Moscow Declaration of December 1943. In it China, the United States, the United Kingdom and the U.S.S.R. stated: "We recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security." This was the first positive announcement of the intention to establish a new collective security organization after the war. It amounted to an abandonment of the League. At the time of the Moscow Declaration in 1943 the League was still in existence, though not functioning. After the Moscow Declaration, the League had no part to play in the postwar world. At Dumbarton Oaks, Washington D.C., the four signers of the Moscow Declaration met in 1944 to draw up a detailed plan for the new organization. The first phase of the conference was between the representatives of the U.S.S.R., the United Kingdom and the United States from August 21 to September 28, 1944. The second phase was between the representatives of China, the United Kmgdom and the United States from September 29 to October 7. This splitting of the conference served to respect Russian neutrality in the war against Japan. On February 11, 1945, the conference made the following announcement:



"We have agreed that a conference of United Nations should be called to meet at San Francisco in the United States on the twenty-fifth April 1945, to prepare the charter of such an organization, along the lines proposed in the informal conversations of Dumbarton Oaks." Fifty nations answered the invitation of the Big Four to meet at San Francisco. These nations worked on the Dumbarton Oaks proposals from April 25 to June 26, 1945. From this conference came the Charter of the United Nations and the statute of the new International Court of Justice. The United Nations Charter is a multilateral treaty. The United Nations organization created by the treaty is an international person, independent of its members, possessing sufficient international personality to enable it to fulfill its purposes. CHARTER OF THE UNITED NATIONS (Can. T.S., 1945, No. 7) We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, And for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, Have resolved to combine our efforts to accomplish these aims. Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations. Chapter I Purposes and Principles Article 1. The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;



2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedom for all without distinction as to race, sex, language, or religion; and 4. To be a center for harmonizing the actions of nations in the attainment of these common ends. Article 2. The Organization and its Members, in pursuit of the Purposes stated in Article 1 shall act in accordance with the following Principles. 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VH. Chapter XVI Miscellaneous Provisions Article 104. The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. Article 105. 1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. . . . REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS International Court of Justice I.CJ. Reports 1949, p. 174. Following the assassination of Count Folke Bernadotte and of others serving the United Nations in Palestine, the Assembly on December 3, 1948, requested an advisory opinion of the International Court of Justice



on the question of reparation for injury suffered in the service of the United Nations. The request put the question as follows: "I. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him?" Written statements were submitted to the Court by China, France, India, the United Kingdom, and the United States. During public sittings held in March 1949, the Court heard oral statements on behalf of the Secretary-General and of Belgium, France, and the United Kingdom. On April 11, 1949, the Court rendered the unanimous opinion that the United Nations is an international person—though not a state or a "super-state"— and has the capacity to maintain its rights by bringing international claims against member as well as non-member states to obtain reparation for damages caused to itself or to any of its agents. When the United Nations was bringing such a claim, it could do so only by basing it upon a breach of obligation due to itself. The Court declared that respect for this rule would usually prevent a conflict between the action of the United Nations and such rights as the agent's national state might possess. It further held that to ensure the efficient and independent performance of its missions and to afford effective support to its agents, the Organization itself must be able to provide them with adequate protection. In April 1950, the Secretary-General made a claim against the Israeli Government for the sum of $54,628 as reparation for the monetary damage borne by the United Nations. The claim by the United Nations was based upon three elements of responsibility: failure to exercise due diligence and to take all reasonable measures for the prevention of the murder; liability of the government for actions committed by irregular forces in territory under the control of the Israeli authorities; and failure to take all the measures required by international law, and by the resolutions of the Security Council to bring the culprits to justice. In the same year the Israeli Government paid the full amount of the claim presented by the United Nations without admitting the validity of all the legal contentions referred to above. THE COURT: .. . The questions asked of the Court relate to the "capacity to bring an international claim," accordingly, we must begin by defining what is meant by that capacity, and consider the characteristics of the Organization, so as to determine whether, in general, these characteristics do, or do not, include for the Organization a right to present an international claim. Competence to bring an international claim is, for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims. Among these methods may be mentioned protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute. This capacity certainly belongs to the State: a State can bring an international claim against another State. Such a claim takes the form of a claim between two political entities, equal in law, similar in form, and both the direct subjects of international law. It is dealt with by means of negotiation, and cannot, in the present state of the law as to international



jurisdiction, be submitted to a tribunal, except with the consent of the States concerned. When the Organization brings a claim against one of its Members, this claim will be presented in the same manner, and regulated by the same procedure. . . . But, in the international sphere, has the Organization such a nature as involves the capacity to bring an international claim? In order to answer this question, the Court must first enquire whether the Charter has given the Organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the Organization possess international personality? This is no doubt a doctrinal expression, which has sometimes given rise to controversy. But it will be used here to mean that if the Organization is recognized as having that personality, it is an entity capable of availing itself of obligations incumbent upon its Members. To answer this question, which is not settled by the actual terms of the Charter, we must consider what characteristics it was intended thereby to give to the Organization. The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organization whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable. The Charter has not been content to make the Organization created by it merely a centre "for harmonizing the actions of nations in the attainment of these common ends" (Article 1, para. 4). It has equipped that centre with organs, and has given it special tasks. It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it (Article 2, para. 5), and to accept and carry out the decisions of the Security Council; by authorizing the General Assembly to make recommendations to the Members; by giving the Organization legal capacity and privileges and immunities in the territory of each of its Members; and by providing for the conclusion of agreements between the Organization and its Members. Practice—in particular the conclusion of conventions to which the Organization is a party—has confirmed this character of the Organization, which occupies a position in certain respects in detachment from its Members, and which is under a duty to remind them, if need be, of certain obligations. It must be added that the Organization is a political body, charged with political tasks of an important character, and covering a wide field, namely, the maintenance of international peace and security, the development of friendly relations among nations, and the achievement of international co-operation in the solution of problems of an economic, social, cultural or humanitarian character (Article 1); and in dealing with its Members it employs political means. The "Convention on the Privileges and Immunities of the United Nations" of 1946 creates rights and duties between each of the signatories and the Organization (see, in particular, Section 35). It is difficult to see how such a convention could operate except



upon the international plane and as between parties possessing international personality. In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is "a super-State," whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. The next question is whether the sum of the international rights of the Organization comprises the right to bring the kind of international claim described in the Request for this Opinion. That is a claim against a State to obtain reparation in respect of the damage caused by the injury of an agent of the Organization in the course of the performance of his duties. Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. The functions of the Organization are of such a character that they could not be effectively discharged if they involved the concurrent action, on the international plane, of fifty-eight or more Foreign Offices, and the Court concludes that the Members have endowed the Organization with capacity to bring international claims when necessitated by the discharge of its functions. . . . The question [I(a)] is concerned solely with the reparation of damage caused to the Organization when one of its agents suffers injury at the same time. It cannot be doubted that the Organization has the capacity to bring an international claim against one of its Members which has caused injury to it by a breach of its international obligations towards it. The damage specified in Question I (a) means exclusively damage caused to the interests of the Organization itself, to its administrative machine, to its property and assets, and to the interests of which it is the guardian. It is clear that the Organization has the capacity to bring a claim for this damage. As the claim is based on the breach of an international obligation on the part of the Member held responsible by the Organization, the Member cannot contend that this obligation is governed by municipal law, and the Organization is justified in giving its claim the character of an international claim. When the Organization has sustained damage resulting from a breach by a Member of its international obligations, it is impossible to see how it can obtain reparation unless it possesses capacity to bring an interna-



tional claim. It cannot be supposed that in such an event all the Members of the Organization, save the defendant State, must combine to bring a claim against the defendant for the damage suffered by the Organization. . . . The traditional rule that diplomatic protection is exercised by the national State does not involve the giving of a negative answer to Question I (b). ... . . In the first place, this rule applies to claims brought by a State. But here we have the different and new ease of a claim that would be brought by the Organization. In the second place, even in inter-State relations, there are important exceptions to the rule, for there are cases in which protection may be exercised by a State on behalf of persons not having its nationality. In the third place, the rule rests on two bases. The first is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach. This is precisely what happens when the Organization, in bringing a claim for damage suffered by its agent, does so by invoking the breach of an obligation towards itself. Thus, the rule of the nationality of claims affords no reason against recognizing that the Organization has the right to bring a claim for the damage referred to in Question I (b). On the contrary, the principle underlying this rule leads to the recognition of this capacity as belonging to the Organization, when the Organization invokes, as the ground of its claim; a breach of an obligation towards itself. . . . Nor does the analogy of the traditional rule of diplomatic protection of nationals abroad justify in itself an affirmative reply. It is not possible, by a strained use of the concept of allegiance, to. assimilate the legal bond which exists, under Article 100 of the Charter, between the Organization on the one hand, and the Secretary-General and the staff on the other, to the bond of nationality existing between a State and its nationals. . . . The Court is here faced with a new situation. The questions to which it gives rise can only be solved by realizing that the situation is dominated by the provisions of the Charter considered in the light of the principles of international law. The question lies within the limits already established; that is to say it presupposes that the injury for which the reparation is demanded arises from a breach of an obligation designed to help an agent of the Organization in the performance of his duties. It is not a case in which the wrongful act or omission would merely constitute a breach of the general obligations of a State concerning the position of aliens; claims made under this head would be within the competence of the national State and not, as a general rule, within that of the Organization. The Charter does not expressly confer upon the Organization the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. The Court must therefore begin by enquiring whether the provisions of the Charter concerning the functions of the Organization, and the part played by its agents in the performance of those functions, imply for the Organization power to afford its agents the limited protection that would consist in the bringing of a claim on their behalf for reparation for damage suffered in such circumstances. Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its



duties/This principle of law was applied by the Permanent Court of International Justice to the International Labour Organization in its Advisory Opinion No. 13 of July 23rd, 1926 (Series B., No. 13, p. 18), and must be applied to the United Nations. Having regard to its purposes and functions already referred to, the Organization may find it necessary, and has in fact found it necessary, to entrust its agents with important missions to be performed in disturbed parts of the world. Many missions, from their very nature, involve the agents in unusual dangers to which ordinary persons are not exposed. For the same reason, the injuries suffered by its agents in these circumstances will sometimes have occurred in such a manner that their national State would not be justified in bringing a claim for reparation on the ground of diplomatic protection, or, at any rate, would not feel disposed to do so. Both to ensure the efficient and independent performance of these missions and to afford effective support to its agents, the Organization must provide them with adequate protection. . .. For this purpose, the Members of the Organization have entered into certain undertakings, some of which are in the Charter and others in complementary agreements. The content of these undertakings need not be described here; but the Court must stress the importance of the duty to render to the Organization "every assistance" which is accepted by the Members in Article 2, paragraph 5, of the Charter. It must be noted that the effective working of the Organization—the accomplishment of its task, and the independence and effectiveness of the work of its agents—require that these undertakings should be strictly observed. For that purpose, it is necessary that, when an infringement occurs, the Organization should be able to call upon the responsible State to remedy its default, and, in particular, to obtain from the State reparation for the damage that the default may have caused to its agent. In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the Organization, and that he may count on it. To ensure the independence of the agent, and, consequently, the independent action of the Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organization (save of course for the more direct and immediate protection due from the State in whose territory he may be). In particular, he should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that—whether the agent belongs to a powerful or to a weak State; to one more affected or less affected by the complications of international life; to one in sympathy or not in sympathy with the mission of the agent—he should know that in the performance of his duties he is under the protection of the Organization. This assurance is even more necessary when the agent is stateless. Upon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. . . . The obligations entered into by States to enable the agents of the Organization to perform their duties are undertaken not in the interest of the agents, but in that of the Organization. When it claims redress for a breach



of these obligations, the Organization is invoking its own right, the right that the obligations due to it should be respected. On this ground, it asks for reparation of the injury suffered, for "it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form"; as was stated by the Permanent Court in its Judgment No. 8 of July 26th, 1927 (Series A, No. 9, p. 21). In claiming reparation based on the injury suffered by its agent, the Organization does not represent the agent, but is asserting its own right, the right to secure respect for undertakings entered into towards the Organization. Having regard to the foregoing considerations, and to the undeniable right of the Organization to demand that its Members shall fulfil the obligations entered into by them in the interest of the good working of the Organization, the Court is of the opinion that, in the case of a breach of these obligations, the Organization has the capacity to claim adequate reparation, and that in assessing this reparation it is authorized to include the damage suffered by the victim or by persons entitled through him. The question remains whether the Organization has "the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him" when the defendant State is not a member of the Organization. . . . On this point, the Court's opinion is that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims. Accordingly, the Court arrives at the conclusion that an affirmative answer should be given to Question I (a) and (b) whether or not the defendant State is a Member of the United Nations. NOTES Question II was put as follows: "In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?" In reply, the Court said at pp. 185-186: When the victim has a nationality, cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the Organization. In such an event, competition between the State's right of diplomatic protection and the Organization's right of functional protection might arise, and this is the only case with which the Court is invited to deal. In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim. . . . The question of reconciling action by the Organization with the rights of a national State may arise in another way; that is to say, when the agent bears the nationality of the defendant State. The ordinary practice whereby a State does not exercise protection on behalf of one of its nationals against a State which regards him as its own national, does not constitute a precedent which is relevant here. The action of the Organization is in fact based not upon the nationality of the victim, but upon his status as agent of the Organization. Therefore it does not matter whether or not the State to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim.



In law, therefore, it does not seem that the fact of the possession of the nationality of the defendant State by the agent constitutes any obstacle to a claim brought by the Organization for a breach of obligations towards it occurring in relation to the performance of his mission by that agent. Agent was defined as follows at p. 177: "The Court understands the word 'agent' in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts." In the European Commission of the Danube case 1927 P.C.I.J., Series B, No. 14, the Permanent Court of International Justice said at p. 64: "As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it."

2) THE ORGANIZATION OF AMERICAN STATES Selected Bibliography. R. St. J. Macdonald, The Organization of American States in Action (1964), 17 U. of T.L.J. 359; The Developing Relationship between Superior and Subordinate Political Bodies at the International Level (1964), 2 Can. Y.B. Int. L. 21; The Organization of American States (1960), 13 External Affairs 878; Van Wynen Thomas & A. J. Thomas Jr., The Organization of American States (1963); C. G. Fenwick, The Organization of American States (1963).

The charter of the Organization of American States was signed on April 30, 1948, by representatives of the 21 republics of the Americas meeting in Bogota at the Ninth International Conference of American States and entered into force on December 13, 1951, when the fourteenth ratification was deposited by Colombia. The charter provided a new legal framework for the system of inter-American co-operation that had evolved during the nineteenth and the first half of the twentieth centuries. The idea of co-operation between American states found its first expression in 1826, when several representatives of newly-created American republics met in Panama in response to a call by Simon Bolivar to organize a league of states. The 130th anniversary of this first call for unity was celebrated in 1956 by a gathering of the presidents or presidents-elect of 19 of the 21 members of the Organization of American States. Bolivar's hope for unity ran counter to the strong pride of independence of the new republics, and it was not possible to organize a league of American states in his lifetime. Nonetheless, there was a recognition of common ties and interests, and during the nineteenth century further meetings took place between representatives of certain of the Latin American republics. Early History. What is considered as the first International Conference of American States was held in 1889, and led to the establishment of the International Union of the American Republics. This association had no written constitution or charter, and its chief purpose was to promote cordial relations among the American republics through trade relations and the collection and publication of information concerning commerce and industry. The Union acted through a bureau called the Commercial Bureau of the American Republics, which was renamed, in 1902, the International Bureau of American Republics. In 1910, at the Fourth International Conference of American States, the official title of the association was changed to Union of American Republics, and that of the Bureau to Pan-American Union.



The Monroe Doctrine is evidence of the early interest of the United States in hemisphere affairs. It was enunciated by President Monroe to Congress in 1823, when he stated that any interposition for the purpose of oppressing independent American governments or controlling in any other manner their destiny by any European power would be viewed as a manifestation of an unfriendly disposition towards the United States. While it is only in recent times that the United States has assumed a commanding position in world diplomacy, it has long played a prominent role within the hemisphere. The inauguration of the "good neighbour" policy by President Franklin D. Roosevelt in 1933 gave a new impetus to inter-American co-operation. The United States made clear its intention to work with the republics of Latin America in a spirit of friendship and equality. This made possible close co-operation in the face of the threat presented by the "Axis" powers. After Second World War. The victory of the allied powers and the formation of the United Nations raised the problem of the proper role and the most suitable institutional framework for inter-American co-operation in the postwar period. Latin American statesmen were convinced of the value of regional arrangements, and it was on their insistence that Articles 52, 53, and 54 were included in the Charter of the United Nations, to provide, inter alia, that members of regional agencies "shall make every effort to achieve a specific settlement of local disputes through . . . such regional agencies before referring them to the Security Council." The charter of the Organization of American States, for its part, specifically states that the Organization is a regional agency within the United Nations (Article I). Precedents have been established on the relation between the two organizations. The Security Council, for example, on July 19, 1960, adjourned consideration of a Cuban complaint that was already under consideration by the Organization of American States Council. In September, the Soviet Union proposed that the Security Council approve a resolution of the Organization of American States regarding sanctions against the Dominican Republic, but the Security Council adopted a resolution that simply took note of the report of the secretary-general of the Organization of American States on this matter. The structural framework of the Organization of American States is outlined in the Charter. The supreme organ of the Organization of American States is the Inter-American Conference, which is held at five-year intervals. The executive body of the Organization is the Council of the Organization of American States, in which each member state has one representative with the rank of ambassador. The Council meets in Washington. "Pan-American Union" has been retained as the designation for the secretariat of the Organization. The secretary-general is appointed by the Council for a non-renewable term of ten years, and is an ex-officio member of the Council, although he does not vote. Provisions of Charter. The Charter provides for meetings of consultation of ministers of foreign affairs to consider problems of an urgent nature and of common interest to the American states. The Inter-American Treaty of Reciprocal Assistance (the Rio Pact), which was signed in 1947, pledges its signatories to submit disputes between them to methods of peaceful settlement, and to undertake joint action in the case of an attack against any American state. The principles of the Rio Pact are reaffirmed in the Organization of American States Charter.



Inter-governmental Bodies. Inter-American co-operation has extended to many technical fields, and a number of specialized inter-governmental organizations have grown up in the course of time. The creation of the Organization of American States made it possible to consolidate intergovernmental organizations, and include them within the framework of the Organization of American States as specialized organizations. The Organization of American States also arranges for specialized conferences to deal with various technical matters. The charter of the Organization of American States provides for three technical organs, which operate under the Council: (a) the Inter-American Economic and Social Council, (b) the Inter-American Council of Jurists; (c) the Inter-American Cultural Council. There are, in addition, a large number of non-governmental inter-American bodies in such fields as architecture* medicine, law, and sports, with which the Pan-American Union (the secretariat) maintains informal liaison. In some cases, the specialized organizations of the Organization of American States have worked in close co-operation with the corresponding Specialized Agencies of the United Nations. The PanAmerican Health Organization, for example, also functions as a regional office for the World Health Organization in the Americas. In other fields, there has been an effort to avoid unnecessary duplication of work, as in the case of the Inter-American Economic and Social Council and the Economic Commission for Latin America, Which come under the Economic and Social Council of the United Nations. Inter-American co-operation has expanded greatly since 1889, when the principal emphasis was given to commercial matters. While economic co-operation is becoming increasingly important, the Organization of American States has also established itself as an appropriate institution for the discussion of political differences amongst its members. The secretary-general of the organization has explained that "the devices used, friendly persuasion, good offices, conciliation, objective investigation of facts—are essentially designed to help the interested parties find themselves the most appropriate means to solve problems or differences." Canada and the O.A.S. Canada is not a member of the Organization of American States. The question of Canadian participation in the InterAmerican System has been the subject of periodic consideration and discussion for many years. Owing principally to a lack of any general knowledge in Canada of the aims and functions of the Organization, Canadian membership has never been a major political issue. Speaking on this subject in the House of Commons on August 4, 1944, the Prime Minister, Mr. W. L. Mackenzie King, said that "Canadian participation in such an organization could be based only upon a wide general appreciation in this country of the purposes and responsibilities of the Pan American Union." More recently, on March 8, 1947, Mr. L. B. Pearson, at that time Under Secretary of State for External Affairs, speaking before the New York Herald-Tribune Forum pointed out that since Canada was already a member "of two Clubs, the 'Commonwealth' and the 'United Nations,' we are satisfied that our relationships of friendship and mutual interest with the other American countries will continue to grow, irrespective of membership or non-membership in any formal organization." During the course of a press conference when in Washington on February 12, 1949, Mr. St. Laurent, the Prime Minister, said: "Our Government has been giving thought to the Pan American Union over a great many years and our relations with the members of the Pan American Union . . . have always been most satisfactory. The angle from



which this has been examined is as to whether our actual participation in the Pan American Union would be productive of any real advantage for any of its members. Our cultural, our trade relations, with the member states of the Pan American Union have always been very good and they will improve constantly. So far it has not appeared to us that there would be any decided advantage in a formal membership in the Pan American Union. . . . At the present time we consider it much more urgent to bring about this North Atlantic Union than to extend one that might be regarded as exclusive for the Western Hemisphere." For more recent pronouncements see (1964), 2 Can. Y.B. Int. L. 302-303. Canada, however, participates in certain specialized agencies and technical organizations of the O.A.S. It belongs to the Inter-American Statistical Institute, the Inter-American Radio Office, and the Pan-American Institute of Geography and History. Canada is also a member of the Postal Union of the Americas and Spain, which does not come under the Organization of American States since it is open to states not members of the Organization. Canadian observers have been present at meetings of a number of specialized organizations, including the Pan-American Health Organization, the Inter-American Nuclear Energy Commission, and the Inter-American Conference on Agriculture. Canadian observers also attended the Extraordinary Meeting of the Inter-American Economic and Social Council in Rio de Janeiro in 1954, and the Economic Meeting of the Organization of American States in Buenos Aires in 1957. NOTES Note that the Council of the Organization of American States may conclude agreements with the Inter-American specialized agencies to determine the relations that shall exist between the respective agency and the O.A.S. (article 53 (c). The Council may also conclude agreements or special arrangements for co-operation with other American organizations of recognized international standing (article 53 (d)). None of the provisions of the Charter of the O.A.S. is to be construed as impairing the rights and obligations of the member States under the Charter of the United Nations (article 102). The O.A.S. enjoys in the territory of each member such legal capacity, privileges, and immunities as are necessary for the exercise of its functions and the accomplishment of its purposes (article 104). On the other hand, article 52 (1) of the Charter of the United Nations recognizes that: "1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations." In this connexion see R. St. J. Macdonald, op. cit.

3) Custom and Economic Unions i) Treaty establishing the European Economic Community (1958) The Treaty of Rome establishing the European Economic Community (EEC), or Common Market, made up of Belgium, Luxemburg, the Netherlands, the Federal Republic of Germany, France, and Italy, was signed in March 1957. Article 2. It shall be the aim of the Community, by establishing a Common Market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious



development of economic activities, a continuous and balanced expansion, an increased stability, an accelerated raising of the standard of living and closer relations between its Member States. Article 3. For the purposes set out in the preceding Article, the activities of the Community shall include, under the conditions and with the timing provided for in this Treaty: (a) the elimination, as between Member States, of customs duties and of quantitative restrictions in regard to the importation and exportation of goods, as well as of all other measures with equivalent effect; (b) the establishment of a common customs tariff and a common commercial policy towards third countries; (c) the abolition, as between Member States, of the obstacles to the free movement of persons, services and capital; (d) the inauguration of a common agricultural policy; (e) the inauguration of a common transport policy; (f) the establishment of a system ensuring that competition shall not be distorted in the Common Market; (g) the application of procedures which shall make it possible to co-ordinate the economic policies of Member States and to remedy disequilibria in their balances of payment; (h) the approximation of their respective municipal law to the extent necessary for the functioning of the Common Market; (i) the creation of a European Social Fund in order to improve the possibilities of employment for workers and to contribute to the raising of their standard of living; (j) the establishment of a European Investment Bank intended to facilitate the economic expansion of the community through the creation of new resources; and (k) the association of overseas countries and territories with the Community with a view to increasing trade and to pursuing jointly their effort towards economic and social development. Article 210. The Community shall have legal personality. Article 211. The Community shall in each of the Member States possess the most extensive legal capacity accorded to legal persons under their respective municipal law; it may, in particular, acquire or transfer movable and immovable property and may sue and be sued in its own name. For this purpose, the Community shall be represented by the Commission. Article 218. The Community shall, under conditions defined in a separate Protocol, enjoy in the territories of the Member States the privileges and immunities necessary for the achievement of its aims. [As to the conclusion of agreements between the Community and one or more States or an international organization, see articles 228 and 229.] Article 238. The Community may conclude with a third country, a union of States or an international organisation agreements creating an association embodying reciprocal rights and obligations, joint actions and special procedures. . .. ii) Treaty establishing the European Coal and Steel Community (1951) The Treaty was signed in Paris in April 1951 by the Federal Republic of Germany, Belgium, France, Italy, Luxembourg, and the Netherlands. Article 2. The mission of the European Coal and Steel Community is to contribute to the expansion of the economy, the development of employ-



ment and the improvement of the standard of living in the participating countries through the creation, in harmony with the general economy of the member States, of a common market.... The Community must progressively establish •conditions which will in themselves assure the most rational distribution of production at the highest possible level of productivity, while safeguarding the continuity of employment and avoiding the creation of fundamental and persistent disturbances in the economies of the inember States. Article 3. Within the framework of their respective powers and responsibilities and in the common interest, the institutions of the Community shall: (a) ensure that the common market is regularly supplied, while taking into account the needs of third countries; (b) assure to all consumers in comparable positions within the common market equal access to the sources of production; (c) seek the establishment of the lowest possible prices without involving any corresponding rise either in the prices charged by the same enterprises in other transactions or in the price-level as a whole in another period, white at the same time pennitting necessary amortization and providing the possibility of normal returns on invested capital; (d) ensure that conditions are maintained which will encourage enterprises to expand and improve their ability to produce and to promote a policy of rational development of natural resources, while avoiding undue exhaustion of such resources; (e) promote the improvement of the living and working conditions of the labour force in, each of the industries under its jurisdiction so as to harmonize those conditions in an upward direction; (f) foster the development of international trade and ensure that equitable limits are observed in prices charged in foreign markets; (g) promote the regular expansion and the modernization of production as well as the improvement of quality, under conditions which preclude any protection against competing industries except where justified by illegitimate action on the part of. such industries or in their favour. A rticle 6. The Community shall be a legal person. In its international relationships, the Community shall enjoy the legal capacity necessary to exercise its functions and to achieve its purposes. In each of the member States, the Community shall enjoy the most extensive legal capacity pertaining to legal persons in that country. Specifically, it may acquire and transfer red and personal property, and may sue and be sued in its 6wn name. The Community shall be represented by its institutions, each one of them acting within the framework of its own powers and responsibilities. Article 76. Under the conditions set forth in an annexed Protocol, the Community shall enjoy on the territory of the member States the privileges and immunities necessary to the achievement of its objectives. See Pescatore, Les relations exterieures des communautes Europeennes (1961), 103 Recueil des Cours 1, and Treaty Establishing the European Atomic Energy Community: articles 2, 101-106, 184, 185; Von Geusau, European Organizations and Foreign Relations of States (1962); Kohnstamin, The European Coal and Steel Community (1956), 90 Recueil cles Cours 1; Soto, The International Relations of the European Coal and Steel Community (1956), 90 Recueil des Cours 117.



Hi) The European Atomic Energy Community (Euratom) Euratom was created by a treaty similar to the one setting up the European Economic Community. It was likewise signed in Rome on March 25, 1957, and is augmented by a statute on the Court of Justice and by a protocol on privileges and immunities. Here again is the notion of a common market, this time applied to nuclear goods and products. However, these provisions are secondary to the essential purpose of this treaty, which is to encourage the creation and growth of nuclear industries in western Europe. Portions of the treaty are devoted to scientific and technological research, investments, the supply of nuclear fuels, health precautions, the dissemination of information, and the acquisition of patent rights. NOTES The purposes of the European Communities are essentially economic and technical in nature. However, the Communities differ from other enterprises of international economic cooperation by their political nature, which results in the first place from the scope of the purposes set forth—purposes that affect the economic, financial, foreign commercial, and social policies of each country. In the second place, the political nature results from the methods by which the purposes are achieved. They include institutions having a relatively large measure of discretionary power, the exercise of which may imply political motivations. The Communities are another step toward a greater political cohesion of western Europe. iv) General Agreement on Tariffs and Trade (GATT) Since the Second World War, for the first time in history, countries have accepted a code of practical rules for fair trading in international commerce and have co-operated in lowering trade barriers. This cooperation has been on a global, not a regional basis. GATT is an international multilateral contract whose stated objectives are: (a) to help raise standards of living; (b) to achieve full employment; (c) to develop the world's resources; (d) to expand production and exchange of goods; (e) to promote economic development. These objectives were formulated when the agreement was drafted in 1947. In recent years the emphasis has been more especially upon the expansion of trade, the removal of barriers to trade, and the trade problems of less-developed countries. Through belonging to GATT, member countries are pledged to work towards the above common objectives. In order to achieve them, the member countries have bent their efforts towards reducing existing barriers to trade. In particular they have attacked tariff barriers. As a result of six tariff-bargaining conferences which have been held between 1947 and 1964, customs duties on tens of thousands of products traded across the frontiers have been reduced. It is estimated that, under GATT, tariffs have been reduced on products accounting for approximately half of world trade. When customs duties are reduced, more goods can be exchanged, prices can be lowered, and there may be more choice of goods for the buyer. GATT member countries have also "frozen" customs duties over a wide area of trade so as to prevent them from being increased suddenly; this has given the business world encouragement for expanding trade and developing markets.



GATT has helped to break down the network of governmental restrictions and prohibitions which impede the natural flow of imports and exports. Under GATT rules, countries that have no foreign exchange shortages or other legitimate justifications must get rid of their quantitative restrictions on imports. In particular, GATT has helped to break down restrictions on trade that discriminate against a particular country or group of countries or against a currency area. GATT provides that each Member country should give the other Members fair and equal treatment in trade and not discriminate against any of them. This provision removes one of the major sources of discord among nations. Furthermore, on February 8, 1965, a new Part IV on Trade and Development was added to GATT to take account of the special needs and trade problems of the less-developed countries. Twenty-eight governments including Canada signed the protocol that will give legal status to these new provisions. The new Part IV will enter into force de jure when it has been accepted by two-thirds of the contracting parties. It is expected that other governments will accept the protocol in the near future. Meanwhile, the contracting parties adopted a declaration on February 8, 1965, providing for the de facto implementation of the new provisions until they enter into force de jure. The contracting parties also established a Committee on Trade and Development, of which Canada is a member, to keep under review the implementation of the new provisions. (See (1965), 17 External Affairs 141.) The GATT countries, when they meet, provide a forum where governments can discuss their trade problems and submit complaints arising from alleged breaches of the GATT rules. If a Member country infringes the code, the party claiming injury can ask for a hearing and the other GATT countries will examine the complaint hi a round-table forum and recommend a solution. This is a new development in international trade relations, and in the thirteen years of GATT's experience many complaints have been settled in this way which in earlier days would have ended in more restrictions on trade or other forms of economic warfare. GATT is a logical development of post-war planning in the economic sphere through the United Nations and the Specialized Agencies. Today GATT is the only instrument which provides a set of rules for international trade, applicable on a global basis, together with the machinery required for ensuring that these rules are not frustrated. Regional Arrangements. The marked tendency in recent years for groups of countries to join together to form customs unions and free trade areas is of special significance to GATT. Article XXIV of the agreement lays down the conditions under which these can be accepted as a basis for an exception to the most-favoured-nation clause and a series of rules designed to ensure that such regional arrangements shall in effect lead to the reduction and elimination of barriers within the area without raising new barriers to trade with the outside world. Note that article 234 of the Rome Treaty (EEC) specifically provides that nothing in that treaty affects the previously accepted international commitments of member countries. Items for which no tariff concessions have been negotiated under GATT are known as "unbound," and member countries are free to raise the tariffs on such goods provided no new or increased preference is created. This is generally referred to as the no-new-preference rule. The United Kingdom is in a special position because, under Commonwealth Preference (see infra), many Commonwealth goods are admitted free of duty. There-



fore, if an unbound import duty is raised, a duty corresponding to the increase would have to be placed on Commonwealth goods in order to comply with the GATT rule. This would break the free-entry principle which governs Commonwealth trade. At the eighth session of GATT in October 1953, the United Kingdom was granted a waiver (slightly amended in March 1955) which enables it to raise duties on certain products not normally imported from Commonwealth countries without imposing a duty on the same products from the Commonwealth. This decision applies only in respect to goods which have been admitted from the Commonwealth duty free since January 1, 1939, and only on condition that it does not cause a substantial diversion of trade to Commonwealth suppliers. Procedures have been approved for consultation and, where necessary, arbitration before changes under the waiver come into force. v) Commonwealth Preference Commonwealth Preference is the name given to the system whereby the countries of the Commonwealth grant to each other various concessions in their custom duties, on a contractual or non-contractual basis, with the object of increasing the flow of intra-Commonwealth trade. This system was formally recognized by the Imperial Economic Conference held at Ottawa in 1932. Some of the preferences already existed, others were created by the levying of additional duties on foreign goods, or by the reduction of duties for Commonwealth goods, or by a combination of the two. The system of preferences established at Ottawa continued with little change in the 1930's, although new preferential agreements were concluded between the United Kingdom and some of the other Commonwealth countries after 1932. Trade agreements were also concluded with countries outside the Commonwealth. Since the Second World War the general level of Commonwealth Preference has been reduced as a result of bilateral agreements with other countries, and more particularly as a result of multilateral tariff negotiations carried out under the provisions of the General Agreement on Tariffs and Trade (supra). In addition, the effect of Commonwealth Preference has been reduced by using world prices which have lessened the ad valorem incidence of duties levied on a "specific" basis (i.e., according to the quantity of the goods imported). The average incidence of Commonwealth Preference has also been affected by changes in both the direction and commodity pattern of trade. vi) The European Free Trade Association During 1959, seven members of the Organization for European Economic Co-operation—Austria, Denmark, Norway, Portugal, Sweden, Switzerland, and the United Kingdom—agreed to establish among themselves a European Free Trade Association (EFTA), whose objectives were: to promote economic expansion, full employment, higher productivity, the rational use of resources, financial stability, and a higher standard of living; to ensure that trade within the association takes place in conditions of fair competition; to avoid a significant disparity in the supply of basic materials; and to contribute to the harmonious development of world trade. A convention was signed in Stockholm in November 1959 and ratified by member countries in the early months of 1960. Under it, customs tariffs on trade in industrial products among members of EFTA are being reduced by stages over a ten-year period.



EFTA tariff reductions are confined to industrial products, and since each country is free to conduct its own trade arrangements and maintain its own external tariffs in respect of countries outside EFTA, Britain's trade with the Commonwealth has not been affected, and her duty-free arrangements for Commonwealth products have been maintained. vii) Latin America Another trade group was established by the treaty of Montevideo, which provides for a Latin America Free Trade Association. This treaty was signed in February 1960 and came into force on June 1, 1961. The seven signatory countries are Argentina, Brazil, Chile, Mexico, Paraguay, Peru, and Uruguay. The treaty specifies that the bulk of trade between member countries is to be liberalized over a twelve-year period. The treaty does not provide for a common external tariff to apply to imports from countries outside the Association. A group consisting of Guatemala, El Salvador, Nicaragua, and Honduras is now seeking to develop a Central American Customs Union. NOTES For economic aspects of international law in general, see Starke, op. cit. (5th ed.), chap. 12, p. 306 et seq.

4) Special Situation: The Holy See See the Lateran Treaties between the Holy See and Italy, February 11, 1929 (1929), 23 Am. J. Ink L. Supp. p. 187, and Kuntz, The Status of the Holy See in International Law (1952), 46 Am. J. of Int. L. 308; Wright, The Status of the Vatican City (1944), 38 Am. J. of Int. L. 452; Briere, La condition juridique de la Cite du Vatican (1930), 33 Recueil des Cours 117; Ireland, The State of the City of the Vatican (1933), 27 Am. J. Int. L. 271; Le Fur, Le Saint Siege et le droit des gens (1930). The treaty signed by the Holy See and Italy on February 11, 1929, containing the provision that the Vatican City shall be regarded as "neutral and inviolable territory," reads in part as follows: 2. Italy recognises the sovereignty of the Holy See in the international domain as an attribute inherent in its nature and in conformity with its traditions and the requirements of its mission in the world. 3. Italy recognizes the full ownership and the exclusive and absolute dominion and sovereign jurisdiction of the Holy See over the Vatican, as at present constituted, together with all its appurtenances and endowments; by this means is created the Vatican City for the special purposes and under the conditions prescribed by the present treaty. The boundaries of the said City are indicated in the plan forming annex I to the present treaty, of which it forms an integral part. 4. The sovereignty and exclusive jurisdiction over the Vatican City, Which Italy recognises as appertaining to the Holy See, precludes any intervention therein on the part of the Italian Government and any authority other than that of the Holy See. 9, In accordance with the rules of international law all persons having permanent residence within the Vatican City shall be subject to the sovereignty of the Holy See. 12. Italy recognises the right of the Holy See to active and passive



legation in accordance with the general rules of international law. 24. As regards the sovereignty appertaining to it in the international sphere, the Holy See declares that it desires to remain and will remain aloof from rivalries of a temporal nature between other States and from international congresses convened to deal with them, unless the contending parties make a joint appeal to its mission of peace. In any event the Holy See reserves the right to exercise its moral spiritual influence. Consequently, the Vatican City shall always and in all circumstances be regarded as neutral and inviolable territory. (130 Br. & For. St. Paps. (1929), pt. I, pp. 791-795, 799.) On May 23, 1963, the Prime Minister of Canada was asked whether he intended "to appoint soon a Canadian representative to the Vatican, as have done almost all nations of the World, including England?" He replied, "this is, of course, a matter of government policy. It is being considered, as no doubt it was being considered during the last six years by the previous government." (H.C. Deb. (Can.) 1963, vol. I, at p. 171.) 5) Individuals as subjects of International Law Selected Bibliography. C. Aage Norgaart, The Position of the Individual in International Law (1962); P. P. Remec, The Position of the Individual in International Law according to Grotius and Vattel (1960). In re Flick and Others Nuremberg: United States Military Tribunal (1947) Annual Digest of Public International Law Cases 1947, Case No. 122, p. 266. Flick, the principal proprietor of a large group of industrial enterprises, was charged with participating in the enslavement and deportation to slave labour of large numbers of civilian inhabitants of countries under the belligerent occupation of Germany, in the course of which the latter were ill-treated, tortured and killed. The defence submitted, inter alia, that Flick was a private individual holding no official position within the state, and that as he did not represent the state in any capacity, he could not be criminally liable for violations of international law. THE TRIBUNAL: . . . The question of the responsibility of individuals for such breaches of international law as constitute crimes, has been widely discussed and is settled in part by the judgment of the International Military Tribunal. It cannot longer, be successfully maintained that international law is concerned only with the actions of sovereign States and provides no punishment for individuals. ... But the International Military Tribunal was [previously] dealing with officials and agencies of the State, and it is argued that individuals holding no public offices and not representing the State, do not, and should not, come within the class of persons criminally responsible for a breach of international law. It is asserted that international law is a matter wholly outside the work, interest and knowledge of private individuals. The distinction is unsound. International law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the Government are criminal also when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong, and punishment falls on the offender in propria persona. The application of international law to



individuals is no novelty. There is no justification for a limitation of responsibility to public officials. . . . NOTES Starke, An Introduction to International Law (5th ed. 1963), p. 64. "To sum up, it may be said: (a) That under modern practice, the number of exceptional instances of individuals or non-state entities enjoying rights or becoming subject to duties directly under international law, has grown, (b) That the rigidity of the procedural convention precluding an individual from prosecuting a claim under international law except through the State of which he is a national has been to some extent tempered, (c) That the interests of individuals, their fundamental rights and freedoms, etc., have become a primary concern of international law. These and other developments of recent years appear to show that the theory that States are the exclusive subjects of international law cannot be accepted today as accurate in all respects, although it may be a good working generalisation for the practical international lawyer." Jessup, in A Modern Law of Nations (1949), pp. 15-17, 18, says: ". . . States are said to be the subjects of international law and individuals only its 'objects.' Treatises on international law accordingly usually proceed at the very outset to examine the nature and essential characteristics of the fictitious jural person known as the state. "But there has welled up through the years a growing opposition to this traditional concept. Numerous writers have attacked the dogma from a variety of approaches. Duguit, Krabbe, Kelsen, and others have impugned the philosophical and juridical basis of the concept. Georges Scelle has called the traditional view 'une vue fausse, une abstraction anthropomorphique, historiquement responsable du caractere fictif et de la paralysie de la science traditionelle du droit des gens.' The record of progress toward the goal of acknowledging the international legal position of the individual has been traced by many jurists. Politis has graphically said: 'Formerly the sovereign State was an iron cage for its citizens from which they were obliged to communicate with the outside world, in a legal sense, through very close-set bars. Yielding to the logic of events, the bars are beginning to open. The cage is becoming shaky and will finally collapse. Men will then be able to hold free and untrammelled communication with each other across their respective frontiers.' "Since this discussion starts with the hypothesis that a change in the old fundamental doctrine has been accepted and proceeds from that point to consider certain modifications in the traditional body of international law which would be desirable or necessary if individuals as well as states were considered subjects of the law of nations, there is no occasion here to continue the debate as to whether under existing international law individuals are subjects of the law or only its 'destinataires.' Those who will may consider some of the observations here as lex lata, while others will deal with them as made de lege ferenda. It remains true, as Sir John Fischer Williams has said, that it 'is obvious that international relations are not limited to relations between states.' The function of international law is to provide a legal basis for the orderly management of international relations. The traditional nature of that law was keyed to the actualities of past centuries in which international relations were interstate relations. The actualities have changed; the law is changing. The conclusion may be that states remain the organs for conducting even those international relations which involve individuals, and it may also be true, as the same able writer has said, that when 'the world is more fully organized politically . . . the disappearance of the State as we know it will mean that international law will either be wholly absorbed into a general body of law or will preserve a separate existence only as a branch of a general system.' . . . "There is no novelty in the suggestion that states may delegate the exercise of some of their customary attributes. The classic case is that of the European



Commission of the Danube established under the Treaty of Paris of March 30, 1856. The Commission was given legislative, administrative, and judicial powers. The Central Commission for the Navigation of the Rhine established under Article 109 of the Final Act of Vienna of 1815 had comparable powers. The regulations of these commissions were directly applicable to individuals, and individual infractions of the rules were directly cognizable by the Commissions. Thus the international bodies dealt directly with individuals in the same manner in which national bodies customarily deal with them. The same remark may be made in regard to those exceptional cases in which individuals have been given by treaty the right to appear before international tribunals. The notable cases are those of the Central American Court of Justice established in 1907, the Mixed Arbitral Tribunals established by the peace treaties at the end of World War I, and the Arbitral Tribunal for dealing with the rights of minorities in Upper Silesia under the Geneva Convention of 1922 between Poland and Germany. In such cases the international tribunal acted directly upon the claim of an individual and the judgment ran in favor of the individual. . . ." In The Subjects of the Law of Nations (1948), 64 L.Q.R. 97, Lauterpacht writes at pp. 112-113: "The Charter of the United Nations, in recognizing the fundamental human rights and freedoms, has to that extent constituted individuals subjects of the law of nations. The question whether that innovation is constitutive or merely declaratory of a pre-existing higher law is of interest, but not of decisive importance. The significance of that change is not impaired by the fact that it is not accompanied by the concession of independent procedural capacity. Finally, the express enactment of crimes against humanity must be regarded as an indirect recognition of fundamental rights of human personality independent of the law of the State and enforceable by international law. The absence of such capacity reduces the status of the individual as a subject of international law; it does not negative it. International law as a whole provides a persuasive illustration of the fact that the conception of law is not a rigid notion admitting of no graduation. The same applies to the conception of subjects of international law." In his International Law (2nd ed., 1949), Dr. Schwarzenberger, however, writes at pp. 71, 75, and 79: "The attempts which have been made to decide in the abstract whether entities which are not States are subjects or objects of international law do not lead beyond mutually contradictory assertions. The only premise which it is safe to state is that the existing subjects of international law are free to extend the application of international law to any entity whom they see fit to admit to the realm of the international legal system. Thus, while nothing excludes ex hypothesi the admission of the individual or any other entity as subjects of international law, such recognition has in each case to be clearly proved in order to be believed. . . . "States can, if they wish, make their subjects directly bearers of rights and duties in international law, and thus, to that extent, invest them with international personality. Yet it cannot be presumed that States intend to treat what normally are mere objects of international law as subjects within the realm of the law of nations. . . . Until the position of the individual as bearer of rights and duties under international law is very much more firmly established than it is at present . . . war crimes and similar cases are only as an exceptional extension of State jurisdiction. . . ." See also the Danzig Railways Officials case (1928), P.C.IJ. Series B, No. 15; The Declaration of Human Rights (1948), infra p. 543; the Genocide Convention of 1948 (1951); and the European Convention for the Protection of Human Rights and Freedoms of 1950.

F) RECOGNITION OF STATES AND GOVERNMENTS 1) General Starke, op. cit. (5th ed. 1963), says at p. 120: There is a deceptive simplicity about this matter of recognition. Actually the subject of recognition is one of the most difficult branches of international law,



not merely from the point of view of exposition of principles but also intrinsically by reason of the many difficult questions which continually arise in practice. Moreover, at this stage of the development of international law, the subject can be presented less as a collection of clearly defined rules or principles than as a body of fluid, inconsistent, and unsystematic State practice. . . . Hackworth, in Digest of International Law (1940), vol. 1, p. 161, s. 30, says: Recognition may be of new states, of new governments, or of belligerency. It is evidenced, in the case of a new state or government, by an act officially acknowledging the existence of such state or government and indicating a readiness on the part of the recognizing state to enter into formal relations with it. The existence in fact of a new state or a new government is not dependent upon its recognition by other states. By recognition of belligerency . . . is meant the recognition by a state that a revolt within another state has attained such a magnitude as to constitute in fact a state of war, entitling the revolutionists or insurgents to the benefits, and imposing upon them the obligations, of the rules of war. Starke, op. cit.,p. 121: Recognition is, as the practice of most States show, much more a question of policy than law. The policy of the recognizing State is conditioned principally by the necessity of protecting its own interests which lie in maintaining proper relations with any new State or new Government that is likely to be stable and permanent. Besides this, other political considerations, for example, trade, strategy, etc. may influence a State in giving recognition. Consequently there is an irresistible tendency of recognising States to use legal principles as a convenient camouflage for political decisions. . . . It is important that in considering the international law and practice as to recognition, due allowance should be made for the exigencies of diplomacy. States have frequently delayed, refused, or eventually accorded recognition to newly formed States or Governments for reasons that lacked strict legal justification. In form and in substance recognition has continued to remain primarily a unilateral diplomatic act on the part of one or more States. (P. 122.) . . . recognition is treated, for the most part, as a matter of vital policy that each State is entitled to decide for itself. (P. 111.) Recognition of a new State has been defined by the Institute of International Law in 1936 ((1936), 30 Am. J. Int. L. Supp. 185) as: "The free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community." "Recognition of a Government . . . implies that the recognized Government is, in the opinion of the recognizing State, qualified to represent an existing State. This Act of recognition in both cases may be express, that is by formal declaration (which may be by diplomatic Note, note verbale, parliamentary declaration, or treaty) or implied when it is a matter of inference from certain relations between the recognizing State and the new State or new Government. The manner of recognition is not material, provided that it unequivocally indicates the intention of the recognizing State." (Starke, op. cit., p. 123.) Article 10 of the Charter of the Organization of American States declares that: "Recognition implies that the State granting it accepts the personality of the new State, with all the rights and duties that international law prescribes for the two States."



Cohen, in Some International Law Problems of Interest to Canada and to Canadian Lawyers (1955), 33 Can. Bar Rev. 389, says at p. 397: "Does a state have a legal duty to recognize other states when certain conditions are present, particularly the independence of the unrecognized state and the apparent effectiveness of its government? In the absence of an international authority to which has been delegated the power to grant recognition to states and governments on behalf of the entire international community, the matter is left by law and practical necessity to the judgment of the recognizing states. But that judgment must be exercised within a legal framework and, therefore, must be exercised according to the law of nations. Yet so intermixed are law and political expediency in this field of recognition that no logical system of principles alone can answer for many states the problems of policy raised by 'recognition.' " i) By whom Hackworth, Digest of international law (1940), vol. 1, p. 161, s. 31: "Whether and when recognition will be accorded is a matter within the discretion of the recognizing state. It is extended by the authority in whom appropriate power is vested by the law of the recognizing state," ii) Method Hackworth, ibid, p. 161: "Recognition is essentially a matter of intention. It may be express or implied. The mode by which it is accomplished is of no special significance. It is essential, however, that the act constituting recognition shall give a clear indication of an intention (1) to treat with the new state as such, or (2) to accept the new government as having authority to represent the state it purports to govern and to maintain diplomatic relations with it, or (3) to recognize in the case of insurgents that they are entitled to exercise belligerent rights. "An act which would normally have the effect of recognition-—short of one involving formal diplomatic relations with a foreign state or government—may be deprived of that quality by an express declaration of the government performing it that it is not intended to constitute recognition. "Recognition of new states usually carries with it recognition of the government of the state so recognized, since states can speak and act only through their governments." In Banco National de Cuba v. Sabbatino, the United States Supreme Court said ((1964), 84 S. Ct. 923): "It is perhaps true that nonrecognition of a government in certain circumstances may reflect no greater unfriendliness than the severance of diplomatic relations with a recognized government, but the refusal to recognize has a unique legal aspect. It signifies this country's unwillingness to acknowledge that the government in question speaks as the sovereign authority for the territory it purports to control, see Russian Republic v. Cibrario [235 N.Y. 255, 139 N.E. 259], at 261-^ 263. Political recognition is exclusively a function of the Executive. The possible incongruity of judicial 'recognition,' by permitting suit, of a government not recognized by the Executive is completely absent when merely diplomatic relations are broken." It is well established in Canada that the recognition of a new State or government is a political act and hence reserved to that branch of the government that is charged with the conduct of foreign affairs. The method of recognition varies. a) States Israel (1949), 1 External Affairs 30:



The Secretary of State for External Affairs made the following announcement on December 24, 1948: "The Canadian Government has today informed the provisional government of Israel that the Canadian Government recognizes de facto the State of Israel in Palestine and that it also recognizes de facto the authority of the provisional government of Israel. "The State of Israel was proclaimed on May 15, 1948. During the seven months that have elapsed, the State of Israel has, in the opinion of the Canadian Government, given satisfactory proof that it complies with the essential conditions of statehood. These essential conditions are generally recognized to be external independence and effective internal government within a reasonably well-defined territory. "The provisional government of Israel has been informed that the recognition given by Canada is accorded in the knowledge that the boundaries of the new State have not as yet been precisely defined, and in the hope that it may be possible to settle these and all other outstanding questions in the spirit of the resolution adopted by the General Assembly of the United Nations on December 11, 1948." The following is the text of the message of December 24, 1948, from the Secretary of State for External Affairs to Mr. Moshe Shertok, Foreign Secretary of the Provisional Government of Israel: "I have the honour to inform you, on behalf of the Government of Canada, that Canada recognizes de facto the State of Israel in Palestine, and that it also recognizes de facto the authority of the Provisional Government of Israel, of which you are a member. This recognition is accorded in the knowledge that the boundaries of the new State have not as yet been precisely defined, and in the hope that it may be possible to settle these and all other outstanding questions in the spirit of the Resolution adopted by the General Assembly of the United Nations on December 11, 1948." Mr. Pearson, in making the announcement on December 24, explained that the question of the recognition of the State of Israel was separate from that of Israel's admission to the United Nations. The Secretary of State for External Affairs further announced on December 27 that the following reply had been received from Mr. Shertok: "I have the honour to acknowledge receipt of your cable of 24th December and to convey to Your Excellency on behalf of the Provisional Government of Israel an expression of deep appreciation of the de facto recognition by the Canadian Government and the hope of the early establishment of formal relations between Canada and Israel. The Provisional Government of Israel is anxious for the rapid restoration of peace and the settlement of all outstanding questions either directly or through the good offices of the Conciliation Commission appointed under the General Assembly resolution of December llth, 1948, and regards this act of recognition by Canada as an important contribution towards this end." Republic of Korea (1949), 1 External Affairs 19: The Secretary of State for External Affairs, in a letter dated July 14, 1949, to the Foreign Minister of the Republic of Korea, informed the latter that: "The Canadian Government has given consideration to the question of recognition of your Government. I am happy to inform you that my Government considers that the vote cast by the Canadian Delegate in the Security Council on April 8, 1949, in support of a resolution favouring



the admission of the Republic of Korea to membership in the United Nations is to be regarded as full recognition by the Government of Canada of the Republic of Korea as an independent sovereign State with jurisdiction over that part of the Korean Peninsula in which free elections were held on May 10, 1948, under the observation of the United Nations Temporary Commission." Sudan (1956), 8 External Affairs 7: Following a decision for sovereign status taken by the Sudanese House of Representatives on December 19, 1955, the independence of the Sudan was formally recognized on January 1, 1956, by the governments of the United Kingdom and Egypt. These two countries had exercised a condominium over the Sudan since 1899. Canadian recognition of the new state of the Sudan was extended on January 6 in a telegram of congratulations from the Prime Minister, Mr. St. Laurent, to the Prime Minister of the Sudan, Mr. Ismail el Azhari, as follows: "On behalf of the Government and people of Canada I extend my warmest felicitations on the achievement of independence by the Sudan. The progress of the people of the Sudan towards full government has been followed with sympathetic interest in Canada. It is a source of much satisfaction to me to be able to join in welcoming the Sudan into the comity of sovereign nations and to offer sincere best wishes for the happy and prosperous future of your country." Others'. In 1960, on the occasion of the declaration of their independence, Prime Minister John G. Diefenbaker sent congratulatory messages, constituting official recognition, to the following new sovereign states in Africa: Cameroun, January 1; Togo, April 27; Congo (ex-Belgian), June 30; Somalia, July 1; Mali, June 20; Malagasy (formerly Madagascar), June 25; Dahomey, August 1; Niger, August 3; Upper Volta, August 5; Ivory Coast, August 7; Chad, August 11; Central African Republic, August 13; Congo (ex-French), August 15; Gabon, August 17. b) Governments South Vietnam: Recently the following exchange took place in Parliament with respect to the recognition of a new government of South Vietnam: Right Hon. J. G. Diefenbaker (Leader of the Opposition): Mr. Speaker, would the Secretary of State for External Affairs say what the decision has been regarding recognition of the provisional revolutionary government of South Viet Nam. What are the considerations that impelled the government to its decision, and would the minister deal in general with the ominous situation in that country consequent upon the change of administration? Hon. Paul Martin (Secretary of State for External Affairs): Mr. Speaker, the hon. gentleman was kind enough to give me notice of his intention to ask this question. When he asked me the other day about this matter I was not in a position to deal with it, for a number of reasons. One was that there had been no request for recognition from the provisional government of the republic of Viet Nam. Since then such a request has been received and this question has been examined. The Government has decided to accord recognition to the government of the republic of Viet Nam. The considerations which the Canadian government examined were: The fact that the government is in actual control of the major part of the territory of the state; it has undertaken to observe international obligations entered into by its predecessors,



and it has secured the acquiescence of the population. It also has promised to protect foreign lives and property and to guarantee fundamental freedoms "within the framework of the anti-communist struggle and the security of the state." Moreover, the Vietnamese government has undertaken to maintain co-operation with the international supervisory commission on which Canada serves. ((1963), 108 House of Commons Debates 4721.) China: As of May 1965 the Communist Chinese government continues to be unrecognized by Canada in spite of the conclusion of a very significant agreement for the sale of wheat by Canada to that government and in spite of continuing commercial negotiations between the two governments. On several occasions the Canadian government has indicated that the question of recognition of the Communist Chinese government is reviewed regularly (H.C. Deb. (Can.) 1963, vol. i, at p. 35). While in Paris in January 1964 Prime Minister Lester Pearson indicated that if China no longer insists on recognition of its sovereignty over Formosa as a condition of diplomatic recognition, then Canada would have to take another look at her policy of non-recognition. He said that the Canadian Government recognized China in the sense that it did a great deal of business with the Peking Government—"that is a form of recognition. "Regarding official diplomatic recognition of China, we do not believe we should take any step that would require any recognition of the rule of Peking over the people of Formosa," Mr. Pearson stated. NOTES See also statement made by the Hon. Paul Martin, Secretary of State for External Affairs on October 22, 1963, H.C. Deb. (Can.), 1963, vol. iv, at p. 3849. For a Soviet view see Fel'dman, D. I., Priznanie Pravitel'stov v Mezhdunarodnom Prave (Recognition of Governments in International Law) (1961); Beaute, La Republique populaire de Chine et le droit international (1964), 68 Rev. gen. de droit int. pub. 350. Schwarzenberger, in The Misery and Grandeur of International Law (1963), says at pp. 14-15: "The transformation of unorganised international society into an organised world society has shifted the emphasis from recognition of new States and governments by individual States*to recognition by organised world society. On this level it takes the form of admission of States to the United Nations and its Specialized Agencies and acceptance of the credentials of delegates by the organs of these institutions. "While in these ways, recognition tends to become generalised, its grant and refusal remain discretionary. From the point of view of political common sense, the Peking Government might be considered entitled to represent China in the United Nations and its Specialised Agencies. So long, however, as the requisite majorities of the organs of any of these global institutions refuse to accept the credentials of representatives of the Peking Government, for all practical purposes China is deprived of her membership. "While, in some cases, such collective recognition is declaratory, in others it is essentially constitutive. It required the package deals between the world camps to transform applicants such as Outer Mongolia and Mauritania, treated before as dependent States by one bloc or the other, into sovereign and equal members of the United Nations." (Quoted with permission of Stevens & Sons, Limited, publishers.) Discussing the Moscow Nuclear Test Ban Treaty, the Secretary of State for External Affairs stated: "On the western side, it was accomplished without any sacrifice of principle or of security, and involved no political concessions. For



example, adherence to the Moscow Treaty, by regimes which are not already recognized by Canada, in no way constituted extension of Canadian recognition to them." (H.C. Deb. (Can.) 1963, vol. v, at p. 5195.) The courts will not examine for themselves whether a State possesses the attributes of an independent sovereign State, but will apply to the appropriate executive department, usually the Department of External Affairs, for information. The decision of the executive does not necessarily depend on purely legal grounds. In Estonian States Cargo and Passenger Line v. s.s. Elise and Messrs. Laane and Baltster, [1948] 4 D.L.R. 247, rev. [1949] S.C.R. 530, 2 D.L.R. 641 (S.C.C.) reported infra p. 1008, the following letter was received by the solicitor for the appellants from the Secretary of State for External Affairs of Canada and introduced as evidence: Re: Estonian State Cargo and Passenger Steamship Line v. Proceeds of the Steamship Elise. Your letter of December 23 encloses four questions put jointly by you and Mr. C. F. Inches, representing all the parties in this action. You desire my answers to these questions for production to the court in this case. Question 1. Does the Government of Canada recognize the right of the Council of Peoples' Commissars of U.S.S.R. or any other authority of the U.S.S.R., to make decrees purporting to be effectual in Estonia? Answer: The Government of Canada recognizes that Estonia has de facto entered the Union of Soviet Socialist Republics, but does not recognize this de jure. The question of the effect of a Soviet decree is for the Court to decide. Question 2. Does the Government of Canada recognize the existence of the Republic of Estonia as constituted prior to June 1940, and if not when did such recognition cease? Answer: The Government of Canada does not recognize de facto the Republic of Estonia as constituted prior to June 1940. The Republic of Estonia as constituted prior to June 1940, has ceased de facto to have any effective existence. Question 3. Does the Government of Canada recognize that the Republic of Estonia has entered the Union of Soviet Socialist Republics, and if so, as from what date, and is such entry recognized as being de facto or de jure? Answer: The Government of Canada recognizes that Estonia has de facto entered the Union of Soviet Socialist Republics but has not recognized this de jure. It is not possible for the Government of Canada to attach a date to this recognition. Question 4. Does the Government of Canada recognize the Government of the Estonian Soviet Socialist Republic, and if so, from what date? Answer: The Government of Canada recognizes the Government of the Estonian Soviet Socialist Republic to be the de facto government of Estonia but does not recognize it as the de jure government of Estonia. It is not possible for the Government of Canada to attach a date to this recognition. Sincerely yours, Louis S. St. Laurent Secretary of State for External Affairs. Duff Development Co. v. Kelantan Government Great Britain : House of Lords [1924] A.C. 797 By a deed dated in July, 1912, the Government of Kelantan granted to the appellant company certain mining and other rights to be exercised in that State, and the deed contained an arbitration clause, which incorporated the Arbitration Act, 1889, so far as applicable. Disputes having arisen as to the effect of this deed, they were referred to an arbitrator, who made an award in favour of the company and directed the Government to pay the costs of the arbitration. In December, 1921, the Government applied to the Chancery Division, under s. 11 of the Arbitration Act, to



set aside the award, but the application was refused. In June, 1922, the company obtained from the King's Bench Division, under s. 12 of the Act, an order giving leave to enforce the award, but this order was set aside, on the application of the Government, on the ground that Kelantan was a sovereign independent State. VISCOUNT CAVE: My Lords, on the hearing of the appeal before your Lordships two points were argued on behalf of the appellant company. First, it was argued that the Government of Kelantan was not an independent sovereign State, so as to be entitled by international law to the immunity against legal process which was defined in The Parlement Beige (5 P.D. 197). It has for some time been the practice of our Courts, when such a question is raised, to take judicial notice of the sovereignty of a State, and for that purpose (in any case of uncertainty) to seek information from a Secretary of State; and when information is so obtained the Court does not permit it to be questioned by the parties. Information of this character was obtained from a Secretary of State and accepted without question in Taylor v. Barclay (2 Sim. 213) and Mighell v. Sultan of Johore ([1894] 1 Q. B. 149) and those cases were followed in Foster v. Globe Venture Syndicate ([1900] 1 Ch. 811) and in The Gagara ([1919] P. 95). In the present case the requisite inquiry was addressed by Master Jelf (while the summons to enforce the award was pending before him) to the Secretary of State for the Colonies, and in answer to this inquiry the Under Secretary replied as follows: "Downing Street, "9th October, 1922. "Sm, "With reference to your letter of the 31st July, I am directed by Mr. Secretary Churchill to inform you, in reply to your letter of the 18th July, that Kelantan is an independent State in the Malay Peninsula and that His Highness the Sultan Ismail bin Almerhum Sultan Mohammed IV. is the present Sovereign Ruler thereof. "2. Prior to the year 1909 the relations between Siam and Kelantan were regulated by an agreement signed in 1902 a copy of the English text of which is enclosed. Such rights as the King of Siam possessed over Kelantan were transferred to His Majesty the King by a treaty signed at Bangkok on the 10th of March 1909. A copy of this treaty is enclosed. "3. Not all the rights possessed by the King of Siam were ever exercised by His Britannic Majesty and the present relations between His Majesty the King and the Sultan of Kelantan which are those of friendship and protection are regulated by an agreement signed on the 22nd of October 1910. A copy of this agreement is enclosed. His Majesty the King does not exercise or claim any rights of sovereignty or jurisdiction over Kelantan. "4. I am to explain that in 1910 the Rajah of Kelantan with His Majesty's approval assumed the title of Sultan and is now Sultan and Sovereign of the State of Kelantan. "5. The Sultan in Council makes laws for the Government of the State, and His Highness dispenses justice through regularly instituted Courts of Justice, confers titles of honour and generally speaking exercises without question the usual attributes of Sovereignty. "I am, "Sir, "Your most obedient servant, "(Signed) J. Masterton Smith."



The documents enclosed in this reply show that Kelantan had formerly been recognized as a dependency of Siam; that the Siamese Government had by the Treaty of Bangkok transferred to the British Government all its rights over Kelantan; and that by the agreement dated October 22, 1910, referred to in the letter from the Secretary of State, the Rajah (afterwards styled the Sultan) of Kelantan had engaged to have no political relations with any foreign power except through the medium of His Majesty the King of England and to follow in all matters of administration (save those touching the Mohammedan religion and Malay custom) the advice of an adviser appointed by His Majesty. Upon these documents it was argued on behalf of the appellants that, although the Secretary of State had stated in the letter of October 9, 1922, that Kelantan was an independent State and its Sultan a sovereign ruler, this statement must be held to be qualified by the terms of the documents enclosed with the letter; that, taking the information as a whole, the true result was that Kelantan was not an independent but a dependent State; and accordingly that the Sultan was not immune from process in the English Courts. My Lords, in my opinion this argument cannot prevail. Vattel (Droit des Gens, ed. Pradier-Fodere (1863), vol. i., ch. 1) defines a sovereign State as a nation which governs itself by its own authority and laws without dependence on any foreign power (s. 4); but he also lays it down (s. 5) that a State may without ceasing to be a sovereign State be bound to another more powerful state by an unequal alliance, and he adds: "Les conditions de ces alliances inegales peuvent varier a 1'infini. Mais quelles qu'elles soient, pourvu que 1'allie inferieur se reserve la souverainete ou le droit de se gouverner par lui-meme, il doit etre regarde comme un fitat independant, qui commerce avec les autres sous 1'autorite du droit des gens. "Par consequent un fitat faible qui, pour sa surete, se met sous la protection d'un plus puissant et s'engage, en reconnaissance, a plusieurs devoirs equivalents a cette protection, sans toutefois se depouiller de son gouvernment et de sa souverainete, cet fitat, dis-je, ne cesse point pour cela de figurer parmi les souverains qui ne reconnaissent d'autre loi que le droit des gens." No doubt the engagements entered into by a State may be of such a character as to limit and qualify, or even to destroy, the attributes of sovereignty and independence: Wheaton, 5th ed., p. 50; Halleck, 4th ed., p. 73; and the precise point at which sovereignty disappears and dependence begins may sometimes be difficult to determine. But where such a question arises it is desirable that it should be determined, not by the Courts, which must decide on legal principles only, but by the Government of the country, which is entitled to have regard to all the circumstances of the case. Indeed, the recognition or non-recognition by the British Government of a State as a sovereign State has itself a close bearing on the question whether it is to be regarded as sovereign in our Courts. In the present case the reply of the Secretary of State shows clearly that notwithstanding the engagements entered into by the Sultan of Kelantan with the British Government that Government continues to recognize the Sultan as a sovereign and independent ruler, and that His Majesty does not exercise or claim any rights of sovereignty or jurisdiction over that country. If after this definite statement a different view were taken by a British Court, an undesirable conflict might arise; and, in my opinion, it is the



duty of the Court to accept the statement of the Secretary of State thus clearly and positively made as conclusive upon the point. . . . VISCOUNT FINLAY (at p. 813 et seq.): The first question to be determined is as to the status of Kelantan—is the Sultan a sovereign prince? It is settled law that it is for the Court to take judicial cognizance of the status of any foreign Government. If there can be any doubt on the matter the practice is for the Court to receive information from the appropriate department of His Majesty's Government, and the information so received is conclusive. The judgment of Farwell J. in Foster v. Globe Venture Syndicate ([1900] 1 Ch. 811) seems to me to be a perfectly accurate statement of the law and practice on this point. There are a great many matters of which the Court is bound to take judicial cognizance, and among them are all questions as to the status and boundaries of foreign powers. In all matters of which the Court takes judicial cognizance the Court may have recourse to any proper source of information. It has long been settled that on any question of the status of any foreign power the proper course is that the Court should apply to His Majesty's Government, and that in any such matter it is bound to act on the information given to them through the proper department. Such information is not in the nature of evidence; it is a statement by the Sovereign of this country through one of his Ministers upon a matter which is peculiarly within his cognizance. The letter of the Colonial Office is not an expression of the opinion of the official who wrote it. The first sentence is: "I am directed by Mr. Secretary Churchill to inform you in reply to your letter of 18th July that Kelantan is an independent State in the Malay Peninsula and that His Highness Ismail" (etc.) "is the present sovereign ruler thereof." This is an official answer by the Secretary of State on behalf of the Government. The question put was as to the status of the ruler of Kelantan. It is obvious that for sovereignty there must be a certain amount of independence, but it is not in the least necessary that for sovereignty there should be complete independence. It is quite consistent with sovereignty that the sovereign may in certain respects be dependent upon another Power; the control, for instance, of foreign affairs may be completely in the hands of a protecting Power, and there may be agreements or treaties which limit the powers or the sovereign even in internal affairs without entailing a loss of the position of a sovereign Power. In the present case it is obvious that the Sultan of Kelantan is to a great extent in the hands of His Majesty's Government. We were asked to say that it is for the Court and for this House in its judicial capacity to decide whether these restrictions were such that the Sultan had ceased to be a sovereign. We have no power to enter into any such inquiry. The reply of the Colonial Office to Master Jelf on October 9, 1922, states that Kelantan is an independent State m the Malay Peninsula and that the Sultan is the sovereign ruler, that His Majesty's Government does not exercise or claim any rights of sovereignty or jurisdiction over Kelantan, and that the Sultan makes laws, dispenses justice through Courts, and, generally speaking, exercises without question the usual attributes of sovereignty. In the face of this statement it is hopeless to contend that the Colonial Office, by appending to its letter the agreements with Siam and with Great Britain, referred it to the Courts to decide upon these documents whether the Sultan was sovereign or not. Such an interpretation is contrary to the plain terms of the letter. Of course, the Colonial Office might have given



a bald answer that the Sultan is a sovereign, but it has been the practice when there are agreements or treaties dealing with the powers of the alleged sovereign to append to the reply on the question of sovereignty copies of any documents. There are very good reasons for this practice. The department might lay itself open to serious misunderstanding if it took any other course. It might be said that there was a want of candour in merely stating the conclusion that the Power is a sovereign Power without disclosing any such limitations on the sovereignty as exist here. The contention that by appending these documents the Colonial Office remits the question to the Court to form its own opinion upon it is based on a misconception. When the letter and the documents are read together, it is clear that the Secretary of State says explicitly that the Sultan is.a sovereign ruler, and the documents are appended by way of making it clear that their effect has been considered and that the Colonial Office has given all due weight to them in arriving at the conclusion that the Sultan is a sovereign prince. There is no ground for saying that because the question involves considerations of law these must be determined by the Courts. The answer of the King, through the appropriate department, settles the matter whether it depends on fact or on law. It is true that by the agreement of October 22, 1910, the Sultan is bound not to have relations with any foreign Power except through His Majesty the King, and to follow the advice given him by the advisers appointed by His Majesty "in all matters of administration, other than those touching the Mohammedan religion and Malay custom." But it would be idle to contend that sovereignty is destroyed by the fact that a protecting Power has charge of foreign relations, and as regards the internal affairs the exception from the obligation to be guided by the advisers appointed by His Majesty is a very large one, as it comprises all matters touching the religion and the customary law of the country. The restrictions on the grant of concessions and the employment of officials in art. 3, and the provisions as to posts, telegraphs and railways in arts. 6 and 7 are quite consistent with the sovereignty of the Sultan, and so are the restrictions on the grant of concessions for the construction of railways within, the State (art. 7). Art. 5 is as follows: "His Majesty's Government undertake not to intefere with the internal administration of the State of Kelantan otherwise than as provided for in this agreement, so long as nothing is done in that State contrary to the treaty rights and obligations that His Majesty's Government have with foreign Governments, and so long as peace and order are maintained in the State of Kelantan, and it is governed for the benefit of its inhabitants with moderation, justice and humanity." And art. 8 provides that "nothing in this agreement shall affect the administrative authority now held by the Rajah of Kelantan," and that except as provided in the agreement the relations between the Rajah and His Majesty's Government shall be the same as those which previously existed between him and the Siamese Government. While there are extensive limitations upon its independence, the enclosed documents do not negative the view that there is quite enough independence left to support the claim to sovereignty. But, as I have said, the question is not for us at all; it has been determined for us by His Majesty's Government, which in such matters is the appropriate authority by whose opinion the Courts of His Majesty are bound to abide. LORD SUMNER (at p. 822): My Lords, I should not trouble your



Lordships at any length with my reasons for thinking that this appeal fails, if it were not for the novelty of this important subject in your Lordship's House. The principle is well settled, that a foreign sovereign is not liable to be impleaded in the municipal Courts of this country, but is subject to their jurisdiction only when he submits to it, whether by invoking it as a plaintiff or by appearing as a defendant without objection. For present purposes it is not necessary to examine the particular theory of law on which this principle is rested. The practice is also well settled that the Court may and generally should make its own inquiry of the competent Secretary of State in order to ascertain, in case of need, whether a particular State is a sovereign State, or a particular person is the head, hereditary or elected, of such a State. Your Lordships were frankly told at the Bar that this case is virtually an appeal against Mighell v. Sultan of Johore ([1894] 1 Q. B. 149), in which that practice was approved. The questions there put to the Colonial Office by direction of the Court were not simply answered Aye or No, but were answered affirmatively with the addition of details explaining the Treaty relations of Johore with Her Majesty Queen Victoria. In The Charkieh (L. R. 4 A. & E. 59, 86) a similar question was put to the Foreign Office with regard to the Khediviate of Egypt and was answered in the negative in the terms "the Khedive has not been and is not now recognized by Her Majesty as reigning sovereign of the State of Egypt." In The Annette ([1919] P. 105) the reply was that His Majesty was provisionally co-operating with the new Government, in opposition to the Soviet Government, but had not yet formally recognized it as the Government of a sovereign independent State. In The Gagara ([1919] P. 95) the statement by the Foreign Office was that Esthonia was recognized as a sovereign State, but provisionally. Thus in one case a clear answer was given that there had been no recognition; in another that the State was sovereign and was so recognized, but with further information as to the Crown's Treaty relations with it; in the third that common action had taken place but without recognition of sovereignty; in the fourth that there was only provisional recognition, but still the State had been recognized as sovereign. Two are cases of States of some antiquity; two are cases of Governments of recent and troublous origin. The same procedure was, however, followed in them all. Certain expressions used by Brett M.R. and Kay L.J. in giving judgment in the Sultan of Johore3's Case ([1894] 1 Q. B. 149) appear to suggest that the reason why the answer of the Colonial Office ought to be accepted without further discussion, is, that in is something which the Crown deigns to declare to its Courts of law, and therefore it cannot be criticized or supplemented, since that would be disrespectful to the Crown itself. That this view of the meaning of the Court of Appeal has had its effect is shown by the language used by Farwell J. in Foster v. Globe Venture Syndicate ([1900] 1 Ch. 811). The appellants, however, desire to go a little behind the form observed. They not unreasonably say: "An official of the Colonial Office advises the Sultan to go to arbitration, and the same official of the Colonial Office, or some other, advises him to dispute the award, and then the Colonial Office, in the name of the Crown, says that the Sultan is a sovereign and so is bound to nothing, not even to pay for what the Colonial Office has advised him to do. What then is the statement that the Sultan is a sovereign? Is it the voice of the sovereign of this



country or is it in reality nothing but the contention of some one in the Colonial Office?" Without contesting in the least either the inconvenience or the impropriety of any conflict between the High Court and the Secretary of State upon the grave question of the sovereignty of the Sultan of Kelantan, I venture to think that the mere obligation of deference to any statement made in His Majesty's name hardly constitutes the whole legal basis for the rule laid down in the Johore Case ([1894] 1 Q. B. 149). The status of foreign communities and the identity of the high personages who are the chiefs of foreign states, are matters of which the Courts of this country take judicial notice. Instead of requiring proof to be furnished on these subjects by the litigants, they act on their own knowledge or, if necessary, obtain the requisite information for themselves. I take it that in so doing the Courts are bound, as they would be on any other issue of fact raised before them, to act on the best evidence and, if the question is whether some new State or some older State, whose sovereignty is not notorious, is a sovereign State or not, the best evidence is a statement, which the Crown condescends to permit the appropriate Secretary of State to give on its behalf. It is the prerogative of the Crown to recognize or to withhold recognition from States or chiefs of States, and to determine from time to time the status with which foreign powers are to be deemed to be invested. This being so, a foreign ruler, whom the Crown recognizes as a sovereign, is such a sovereign for the purposes of an English Court of law, and the best evidence of such recognition is the statement duly made with regard to it in His Majesty's name. Accordingly where such a statement is forthcoming no other evidence is admissible or needed. I think this is the real judicial explanation why it was held that the Sultan of Johore was a foreign sovereign. In considering the answer given by the Secretary of State, it was not the business of the Court to inquire whether the Colonial Office rightly concluded that the Sultan was entitled to be recognized as a sovereign by international law. All it had to do was to examine the communication in order to see if the meaning of it really was that the Sultan had been and was recognized as a sovereign. There may be occasions, when for reasons of State full, unconditional or permanent recognition has not been accorded by the Crown, and the answer to the question put has to be temporary if not temporising, or even where some vaguer expression has to be used ([1919] P. 105). In such cases not only has the Court to collect the true meaning of the communication for itself, but also to consider whether the statements as to sovereignty made in the communication and the expressions "sovereign" or "independent" sovereign used in the legal rule mean the same thing. Best C.J. says in Yrisarri v. Clement (2 C. & P. 223, 225) that recognition is conclusive, but, if there is no recognition yet given, the independence becomes matter of proof. I conceive that, if the Crown declined to answer the inquiry, as in changing and difficult times policy might require it to do, the Court might be entitled to accept secondary evidence in default of the best, subject, of course, to the presumption that, in the case of a new organization, which has de facto broken away from an old State, still existing and still recognized by His Majesty, the dominion of the old State remains unimpaired until His Majesty is pleased to recognize the change. In The Charkieh (L. R. 4 A. & E. 59) the Foreign Office returned a definite and unambiguous answer that the Crown had never recognized the Khedive Ismail or his predecessors as sovereigns, but only as provincial



authorities, albeit hereditary ones, who derived their authority and status from the Sultan of Turkey. This was conclusive, and hence it is that Brett M.R. indicated his opinion, that the further inquiries made by Sir R. Phillimore were unnecessary. In the present case there is a precise and sufficient statement as to the status of the Sultan of Kelantan, as recognized by His Majesty, with nothing ambiguous about it. The questions, what are the boundaries of a foreign State? and also what communities or tribes are under its authority? apart from any recognition of their sovereignty or refusal to recognize it, are questions, which seem to me to stand on a different footing. I express no concluded opinion, but, for the purpose of making clearer the reasons above given by considering the converse case, I venture to suggest my present view. In this connection two cases may be usefully compared: Foster v. Globe Venture Syndicate ([1900] 1 Ch. 811) and Luther v. Sagor ([1921] 1 K. B. 456 (on appeal [1921] 3 K. B. 532).) In the former Farwell J. treated the question whether the Suss district was within the territories of Morocco as equivalent in character to the question whether the Suss tribes had or had not been recognized as independent. He appears to have thought that one matter for judicial notice was the geographical extent of the jurisdiction of the Suss tribes, if they were recognized as independent. I confess, though with the diffidence that I always feel in criticising so great a judge, that the two questions seem to me to be quite different. To ask if the Crown has recognized a State as a sovereign State is one thing; to ask exactly what the boundaries of that State are at any time and whether certain persons live within or without them is quite another. The reason acted on by Farwell J. was the expression quoted from Thompson v. Barclay (2 Sun. 213, 221): "The Courts of the King should act in unison with the Government of the King." This seems to be rather a maxim of policy than a rule of law. If, as Farwell J. supposed, cases had occurred in which the Crown had applied for redress of wrongs, suffered locally by British subjects, either to the Sultan of Morocco or to the head of the independent Suss tribes, such an act would have been in the former case a recognition of the Sultan as sovereign of the district in question, and in the latter a recognition of the Suss tribes both as a sovereign State and as exercising that sovereignty in that district. No doubt the statement of the Foreign Office that this was so would be conclusive. Either it would state the recognition of the Suss tribes or it would state the recognition of the extent of the Sultan's local sovereignty, much as if application had been made by the Sultan for an exequatur for a British Consul to be stationed in the district. Probably Farwell J. meant no more than this. The frontiers of foreign countries are matters of geography, not always involved with matters of State. Certainly it is not always safe for Courts to form their own impression on such subjects. Hong Kong, for example, has been spoken of judicially as if it were a Chinese port: Nobel's Explosives Co. v. Jenkins & Co.'.'((1896) 1 Com. Cas. 436, 439). It does not, however, follow that, on mere questions of this kind, resort ought to be had to the Foreign Office, or that its answer, if given, must necessarily be taken to be correct in fact. I do not think it has yet been held or ought to be held that the Crown must be deemed to know all the geographical boundaries of all foreign States at all times, and this so that its statement on the subject would be conclusive. Contiguous States have often disputed their common boundary, and no other State has had occasion to know where it runs any better than they have done themselves. This was so in the last



century with regard to the northern boundary of the State of Maine and Canada, and of the common frontier in the Oregon Territory. More recently there have been cases of this kind between the various Republics of South America. How can a judge of the High Court take judicial notice of untraced lines, and how can His Majesty's Government tell him with authority exactly where they are? I doubt very much if the boundaries of the dominions of the Emir of Riad in Central Arabia were exactly known to any European Government ten years ago, or if those of the Borku and Wadai tribes in the Southern Libyan Desert are definitely known to-day. I think such boundaries, where no acts of the Crown with regard to them have been involved, must depend on evidence given in the ordinary way. Again, it is not indispensable that the information should have been solicited from the competent Government department by the Court itself. In Luther v. Sagor ([1921] 1 K. B. 456, 477) the evidence put in by the parties included several letters from the Foreign Office relating to the recognition (if it amounted to recognition), which His Majesty had been advised to extend to the Soviet Government, though subsequently the Court made further inquiries of its own. The letters put in before Roche J. stated that the Soviet Government had not been recognized in any way, but that M. Krassin personally was regarded by the Foreign Office as a foreign representative, who should be exempt from legal process, though this point was left to the better judgment of the Courts, and on this evidence he held that the Soviet Government was not a sovereign State. Before the Court of Appeal a further letter from the Foreign Office was admitted, which stated at a later date that His Majesty's Government did recognize the Soviet Government de facto, and on this further evidence alone the decision below was reversed. In both Courts information communicated by the Foreign Office was received as being the proper material on the question of the status of the Soviet Government of Russia, and neither Court refused nor thought itself bound to refuse to consider such information merely because it had been obtained by the parties and by them submitted to the Court. Both Courts proceeded to consider the meaning and effect of the various communications and, in view of the fact that, as Roche J. puts it, they were "as clear as the indeterminate position of affairs in connection with the subject matter of the communications enabled them to be" (which to be sure was not luce clarius), I have no doubt that the construction was a matter for argument before and for decision by the Courts. As it seems to me, no such question arises in the present case. Here there is an explicit statement that the Sultan of Kelantan is an independent sovereign, and about this there is no possible ambiguity. To inquire what constitutes independence and whether the Treaty cited in the letter does or does not impair his independence seems to me to be irrelevant. We should really question the correctness of the course taken by His Majesty in regarding this potentate as a sovereign, if we were to discuss the question, how far the Sultan's sovereignty is reconcilable with the terms of the Treaty. NOTES Cf. Lord Atkin in the Arantzazu Mendi, infra p. 157, where he said, "With great respect I do not accept the opinion implied in the speech of Lord Sumner . . . that recourse to His Majesty's Government is only one way in which the judge can ascertain the relevant fact [of recognition]." In the Gagara, [1919] P. 95, on a motion to set aside a writ in rem claiming possession of a vessel held by the Esthonian Government, the Court invited



the assistance of the Foreign Office as to the status of the Esthonian National Council. The Attorney-General on behalf of the Foreign Office stated that His Majesty's Government had, for the time being, and with all necessary reservations as to the future, recognized the Esthonian National Council as a de facto independent body and had received an informal diplomatic representative of the Provisional Government. See also the Annette and the Dora, [1919] P. 105.

Several theories have been offered to resolve the difficulties involved in recognition: (1) There should be two types of recognition, one political and the other legal. The latter should be mandatory on all governments, the former discretionary. (2) Where revolutionary governments have assumed control a duty of continuing diplomatic relations so far as possible without regard to revolutionary changes in governments should exist, thus eliminating altogether the need for recognition. Each government would merely deal with the group in power. (3) Another solution would eliminate individual recognition and substitute for it collective recognition, primarily by means of the United Nations. (See International Law I (1964), 27-161-1, U.S. Army, p. 25.) 2) Distinction between de Jure and de Facto Governments and de Facto and de Jure Recognition The terms de facto and de jure often appear in cases involving recognition. The context in which these terms are used must be noted carefully in order to determine precisely what is meant. They are used principally in the following three meanings: 1. The prospects for permanency of the State or government recognized. "De facto" recognition is sometimes extended to a government whose control is still tenuous, or to a state whose independence is not yet entirely secure. "De jure" recognition would follow this type of "de facto" recognition in time once the precariousness of the situation implied in the "de facto" recognition had passed. 2. The legitimacy of the State or government. "De facto" recognition is sometimes extended to states or governments where a question of legitimacy exists under either international or municipal law. "De jure" recognition is withheld from the usurper until he has legally validated his position, usually by conducting free elections. An example of such use of recognition occurred in the Italian-Ethiopian War when the United Kingdom recognized the King of Italy as the "de facto" sovereign of Ethiopia but still extended "de jure" recognition to the Government of Haile Selassie. (See Haile Selassie v. Cable and Wireless, Ltd. (No. 2) [1939] 1 Ch. 182.) The United States practice has been to avoid such questions of legitimacy at the time of recognition by considering the government "de facto" to be the government "de jure" Therefore, except on one occasion (de facto recognition was extended to the Carranza Government of Mexico in 1915, while de jure recognition did not follow until 1917), the United States has not distinguished between the kinds of recognition it extends. 3. As a substitute for formal recognition. The "de facto" recognitions described above are intentional recognitions by one government of another. (Briefly, op. cit. at p. 139, correctly points out that de facto and de jure describe the thing recognized, and not the act of recognition.) However, governments in practice do not stumble into recognition. It is to them a



deliberate political act. Therefore, they see nothing inconsistent in withholding recognition because of the failure of the other government to meet some subjective criterion, and at the same time conducting a minimum of transactions with that government. (See International Law I (1964), 27-161-1, U.S. Army, p. 24.) Wheaton, in Elements of International Law (6th Eng. ed. by Keith 1929) I, 43, says: "A de jure government is one which, in the opinion of the person using the phrase, ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto government is one which is really in possession of them, although the possession may be wrongful or precarious." Von Schuschnigg, in International Law: An Introduction to the Law of Peace (1959), says at p. 160: "A de jure government means a government with uncontested legality, fully and permanently accepted as a partner in international relations." With reference to discussions concerning the proposed recognition by Great Britain of the Soviet Union, Sir Frederick Pollock, in a letter of February 4, 1924 to the London Times, made the following statements: "The de facto Government of a given territory is that which controls the public services and performs the usual functions of political authority. This is present matter of fact. But recognition of a Government as de facto by a foreign Power implies the further judgment that the Government so recognised is apparently capable of maintaining itself against any adverse claims, whatever their merits may be. "A de facto Government is also de jure, or in English lawful, when (1) it derives its power by regular succession under the Constitution or custom of the land, which is the most normal case; or (2) it had not a legal origin, but has acquired the consent of the governed by express ratification, such as, in our time, a popular vote, or by general acquiescence coupled with the absence of any effective adverse claim. These are often not plain matters of fact, but the subject of conflicting opinions. There may be a considerable unsettled interval, as in France between the Ancien Regime and the Consulate. Modern history is full of dispossessed princes and rulers claiming to be still de jure the heads of their States, and recognised by some foreign States and not by others. Such were the Stuarts in the 18th century, who failed after seeming to be on the point of success, and the Bourbon dynasty in France, who, two generations later, succeeded for a time after a seemingly hopeless exile." Chen, in The International Law of Recognition (1951), says at pp. 290-291 (footnotes omitted): Unlike the distinction between de jure and de facto recognition, which is mainly political, the distinction between de jure and de facto governments is essentially legal. By 'de jure government* we mean a government de jure in the international law sense, that is, a government exercising unrivalled control over the whole of the territory of a State, though, subsequent to the establishment of such control, its authority may at times have been challenged. Such a challenge may come either from a belligerent community in a civil war or a foreign military occupant in an international war. As long as the war lasts the government which has hitherto been governing continues to be regarded internationally as the de jure government of the State, to whatever extent it may have lost actual control. The de facto government, although wielding actual power in the territory under its control, may not, according to the traditional view, be regarded as the sovereign of the territory. This is true even



if the de jure government has been completely ousted, or, indeed, has disappeared. [Quoted with permission of Stevens & Sons, Limited, publishers.] Compare the language of Starke, op. cit., p. 134 et seq. The practice of States draws a distinction between recognition de jure and de facto. Recognition de jure means that according to the recognising State, the State or Government recognised formally fulfils the requirements laid down by international law for effective participation in the international community. Recognition de facto means that in the opinion of the recognising State, provisionally and temporarily and with all due reservations for the future, the State or Government recognized fulfils the above requirements in fact (de facto). In modern times the practice has generally been to preface the stage of de jure recognition by a period of de facto recognition, particularly in the case of a legally constituted government giving way to a revolutionary regime. In such a case, de facto recognition is purely a non-committal formula whereby the recognising State acknowledges that there is a legal de jure government which "ought to possess the powers of sovereignty, though at the time it may be deprived of them" but that there is a de facto government "which is really in possession of them although the possession may be wrongful or precarious." Meanwhile de facto recognition secures considerable economic advantages to the recognizing State, enabling it to protect the interests of its citizens in the territory of that State or Government. At a later stage, when the need for reservations no longer exists because the future of the new State or new regime is completely assured, de jure recognition is formally given. . . . There are important differences between de facto and de jure recognition which render the distinction one of substance: (a) only de jure recognized State or Government can claim to receive property locally situated in the territory of the recognising State; (b) only the de jure recognised State can represent the old State for purposes of State succession; (c) the representatives entities recognised only de facto are not entitled to full diplomatic immunities and privileges [this point, however, is doubtful]; and (d) de facto recognition can, owing to its provisional character, be withdrawn on several grounds other than those normally justifying a withdrawal of de jure recognition. (Ibid, pp. 138-139.) See the Arantzazu Mendi and Bank of Ethiopia v. National Bank of Egypt and Liguori cases, reported infra p. 157. 3) Legal Effects of Recognition Starke, op. cit., says at p. 139 et seq.: "The principal legal disabilities of an unrecognised State or government may be enumerated as follows: "(a) It cannot sue in the Courts of a State which has not recognised

it. ...

"(b) . . . The acts of an unrecognised State or government will not generally be given in the courts of a non-recognising State the effect customary according to the rules of 'comity.' "(c) Its representatives cannot claim immunity from legal process. "(d) Property due to a State whose Government is unrecognised may actually be recovered by the representatives of the regime which has been overthrown. "Recognition transmutes these disabilities into the full status of a sovereign State or Government."



The Arantzazu Mendi Great Britain: House of Lords [1939] A.C. 256 LORD ATKIN: My Lords, this was an appeal from an order of the Court of Appeal dismissing an appeal from an order of Bucknill J. in the Admiralty Division by which he ordered that the writ and all further proceedings in this action and the arrest of the steamship Arantzazu Mendi be set aside. The writ, issued on April 13, 1938, was expressed to be between the Government of the Republic of Spain, plaintiff, and the steamship or vessel Arantzazu Mendi and Eugenio Renteria, the late master of the said steamship, defendants, and commanded the defendants to cause an appearance to be entered for them in the Admiralty Division. The plaintiffs' claim was to have possession of the said steamship adjudged to them. (The writ appears to me to have been wholly irregular. It purported to "inake a chattel (the ship) a defendant and to order the chattel to enter an appearance. I think that it might have been set aside, unless amended, on that ground alone, and that no warrant of arrest should have been issued on it. It makes it no better that the form was obviously adopted to seek to evade the difficulty that might have been caused if the plaintiffs had described the proposed defendants in terms that would have included the Nationalist Government of Spain, subject to whose directions the master and crew were holding the vessel. However, this point does not arise. The Nationalist Government of Spain entered a conditional appearance and then moved to set aside the writ and the arrest on the ground that the action impleaded a foreign sovereign State and that the ship was in their possession. Bucknill J. made the order applied for; he was affirmed by the Court of Appeal, and on February 2 this House dismissed the appeal from this order. We then stated that we would give our reasons for the decision at a later date, and this I proceed to do. My Lords, in the events that have happened it does not seem necessary to discuss this case at much length. The question is whether the Nationalist Government of Spain represent a foreign State in the sense that entitles them to immunity from being impleaded in these Courts, and, if so, whether they are impleaded in the action by reason of being in possession of the ship in question. I state the question in that form as being sufficient to dispose of the present case. As, in my opinion, there is no doubt that the Nationalist Government was in fact in possession of the ship, the question does not arise that was discussed in The Cristina, [1938] A.C. 485, whether on a writ framed in the ordinary form of a writ in rem and not having specified defendants the mere fact that a foreign sovereign State was claiming to be in possession or to be entitled to possession was sufficient to show that the State was impleaded without proof that the claim was rightly or reasonably made. On the question whether the Nationalist Government of Spain was a foreign sovereign State, Bucknill J. took the correct course of directing a letter, dated May 25, 1938, to be written by the Admiralty Registrar to the Secretary of State for Foreign Affairs, asking whether the Nationalist Government of Spain is recognized by His Majesty's Government as a foreign sovereign State. I pause here to say that not only is this the correct procedure, but that it is the only procedure by which the Court can inform itself of the material fact whether the party sought to be impleaded, or whose property is sought to be affected, is a foreign sovereign State. This, I think, is made clear by the



judgments in this House in the Kelantan case, [1924] A.C. 797. With great respect I do not accept the opinion implied in the speech of Lord Sumner in that case that recourse to His Majesty's Government is only one way in which the judge can ascertain the relevant fact. The reason is, I think, obvious. Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone. The answer of the Foreign Secretary was given in a letter dated May 28, 1938. After stating that His Majesty's Government recognize Spain as a foreign sovereign State, and recognizes the Government of the Spanish Republic as the only de jure Government of Spain or any part of it, the letter proceeds: "5. His Majesty's Government recognizes the Nationalist Government as a Government which at present exercises de facto administrative control over the larger portion of Spain. "6. His Majesty's Government recognizes that the Nationalist Government now exercises effective administrative control over all the Basque Provinces of Spain. "8. The Nationalist Government is not a Government subordinate to any other Government in Spain." My Lords, this letter appears to me to dispose of the controversy. By "exercising de facto administrative control" or "exercising effective administrative control," I understand exercising all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the Government. It necessarily implies the ownership and control of property whether for military or civil purposes, including vessels whether warships or merchant ships. In those circumstances it seems to me that the recognition of a Government as possessing all those attributes in a territory while not subordinate to any other Government in that territory is to recognize it as sovereign, and for the purposes of international law as a foreign sovereign State. It does not appear to be material whether the territory over which it exercises sovereign powers is from time to time increased or diminished. In the present case we appear to be dealing with a claim based upon a legislative decree affecting merchant shipping registered at Bilbao in the Basque Provinces, the territory specially designated in the sixth paragraph of the Foreign Office letter. That the decree therefore emanated from the sovereign in that territory there can be no doubt. There is ample authority for the proposition that there is no difference for the present purposes between a recognition of a State de facto as opposed to de jure. All the reasons for immunity which are the basis of the doctrine in international law as incorporated into pur law exist. There is the same necessity for reciprocal rights of immunity, the same feeling of injured pride if jurisdiction is sought to be exercised, the same risk of belligerent action if Government property is seized or injured. The non-belligerent State which recognizes two Governments, one de jure and one de facto, will not allow them to transfer their quarrels to the area of the jurisdiction of its municipal Courts. For these reasons I think that it was established by the Foreign Office letter that the Nationalist Government of Spain at the date of the writ was a foreign sovereign State and could not be impleaded. . . .



Bank of Ethiopia v. National Bank of Egypt and Liguori Great Britain: Chancery Division [1937] 1 Ch. 513 This issue was directed to be tried in an action by the Bank of Ethiopia against the National Bank of Egypt. The issue was whether the Bank of Ethiopia had been dissolved or had otherwise ceased to exist under or by virtue of the laws of the country under which it was incorporated or, if it had not ceased to exist, whether it had authorized the action to be brought. In April, 1935, the governor of the Bank of Ethiopia (which had been formed in 1931 as a company under Ethiopian law) went on leave from Abyssinia to Europe, acting there for the bank and for the Ethiopian government with regard to providing personnel and stores in case of war with Italy. The bank's fortunes in Abyssinia were left to the care of Mr. Ernest Wright, subject to the governor's instructions. War with Italy came late in 1935. The Emperor Haile Selassie left Abyssinia on May 1 or 2, 1936, and from May 6, the activities of Mr. Wright and his staff came under Italian control. Three days later annexation of Abyssinia was proclaimed by the Italian government, and Marshal Badoglio was appointed Governor-General and Viceroy; and on June 20 the decree was made purporting to dissolve the Bank of Ethiopia. On September 29, 1936, this action was started in the name of the Bank of Ethiopia under the authority of persons who had been directors before June 20, and who were not, at the date of the action, acting either under the direction or with the approval of the liquidator. The action claimed, substantially, a settlement of outstanding accounts between the Bank of Ethiopia and the National Bank of Egypt. It was not disputed that the accounts would have to be adjusted between the proper parties, and the question arose whether the liquidator appointed pursuant to the Italian decree was the proper person to adjust them with the National Bank of Egypt. The issue was therefore settled and on April 29, 1937, came before the Court for trial. On April 28, 1937, the Emperor Haile Selassie, in England, signed a decree by which he purported to empower all companies incorporated under Ethiopian law to hold valid meetings and to carry on business outside Abyssinia. A certificate from the Foreign Office put before the Court during the hearing, stated that in December, 1936, the British government recognized the Italian government as being in fact (de facto) the government of the area of Abyssinia then under Italian control. . . . CLAUSON J.: The effect of that communication is that I am bound to treat the acts of the government which was so recognized as acts which cannot be impugned on the ground that it was not the rightful but a usurping government. That follows from the decision of the Court of Appeal in the case of Aksionairnoye Obschestvo A. M. Luther v. James Sagor & Co., [1921] 3 K.B. 532, and my last observation applies not only to acts done after the date when His Majesty's government recognized the Italian government as the de facto government, but also to any acts of that government done at any time at which, on the facts proved before me, they were in fact the government, though not yet recognized as such by His Majesty. For this proposition it is sufficient for me to refer to the decision of the Court of Appeal in White, Child & Beney, Ld. v. Eagle, Star, & British Dominions Insurance Co. Ld. 127 L.T. 571. ... I must, however, deal with the grounds upon which it was suggested by



counsel for the Bank of Ethiopia that the liquidation decree was ineffective. The argument, as I understood it, was as follows. It was said that the present was an entirely novel case, a case in which there was a de facto government recognized as such by His Majesty's government, and at the same time a Sovereign—namely, the fugitive Emperor—recognized as a de jure monarch on the other. It was suggested that under those circumstances it was open to this Court to depart from the duty carefully indicated by Bankes L. J. in Aksionairnoye Obschestvo A. M. Luthery v. James Sagor & Co.—namely, the duty of treating the acts of the de facto government with all the respect due to the acts of a duly recognized foreign Sovereign State—and that it was open to this Court and, indeed, its duty, to test the validity of those acts by some special test: and the first such test suggested was whether the acts in question were necessary to secure the safety of the occupying army, whose presence secured the government in its position of de facto control. It may be (it is of course not necessary for me to express or even to form an opinion on the topic) that such a test may be applicable to measures adopted by the authorities of an army occupying part of the territory of an organized state: but the test seems to me to have no relevance in principle to the case of a de facto government set up in an area from which the former government has departed, and in which there is no governmental authority except that of the de facto government. The de facto government must necessarily make such provision as may be proper for regulating the concerns of the inhabitants, and cannot confine itself to the protection of its military forces. It must necessarily, in such circumstances, assume the full responsibility of government, and its acts must, I should have thought, necessarily have the status of acts of a fully responsible government. It was then sought, as I understood, to argue that the recognition of some measure of sovereignty de jure in the fugitive Emperor logically led to the denial of full sovereignty to the de facto government: and it was, as I understood, suggested that there existed this limitation on the acts of the de facto government which are to be recognized as internationally valid, that they must be acts which are strictly necessary for preserving peace, order and good government within the area controlled by the de facto government. This seems to me to be entirely inconsistent with the authorities to which I have already referred, and in principle to be fallacious. The recognition of the fugitive Emperor as a de jure monarch, appears to me to mean nothing but this, that while the recognized de facto government must for all purposes, while continuing to occupy its de facto position, be treated as a duly recognized foreign sovereign state, His Majesty's government recognizes that the de jure monarch has some right (not in fact at the moment enforceable) to reclaim the governmental control of which he has in fact been deprived. Where, however, His Majesty's government has recognized a de facto government, there is, as it appears to me, no ground for suggesting that the de jure monarch's theoretical rights (for ex hypothesi he has no practical power of enforcing them) can be taken into account in any way in any of His Majesty's Courts. This being my view it is perhaps superfluous to point out that even if I could accede to the last mentioned argument, and if I were free to test the acts of the de facto government by the test of such acts being necessary for preserving peace, order and good government, the test could hardly fail to lead to my accepting as valid the acts questioned in the present case. It is difficult to see how confusion could fail to ensue if the only bank of



issue in the country were allowed to continue its business under the control of persons who, until the last moment, seem to have been engaged in strenuous attempts to assist the displaced government to resist the attacks of those who have become the de facto government. But I need not pursue this topic since I am in my view not free to apply any such test. . . . In my view, as already stated, of the facts and the law I must on these issues make declarations to the following effect: (1) That the Bank of Ethiopia has, by virtue of the laws of the country under the laws whereof it was incorporated, been dissolved, and has accordingly ceased to exist except in so far as may be necessary for the liquidation of its affairs. (2) That this action, having been brought otherwise than by or under the authority of the defendant Liguori, the duly constituted liquidator of the Bank of Ethiopia, has not been authorized by that bank. Haile Selassie v. Cable and Wireless Limited (No. 2) Great Britain: Court of Appeal [1939] 1 Ch. 182 The Director-General of Posts, Telegraphs, and Telephones of Ethiopia, a sovereign power, entered into a contract, as agent for the sovereign, with a radio telegraphic company, as a result of which a sum of money became due as part of the public revenues of that power. The country was subsequently conquered and governed by a foreign power, Italy. The original sovereign was still recognized by the Government of this country as de jure sovereign and the conquering power was recognized as being in control de facto: BENNETT J.: [After referring to United States of America v. McRae, L.R. 8 Eq. 69 and Luther v. James Sagor & Co. [1921] 3 K.B. 532, his Lordship cited the judgment of Clauson J., in Bank of Ethiopia v. National Bank of Egypt and Liguori, [1937] 1 Ch. 513, and continued as follows:] The learned judge was concerned to demonstrate that the plaintiff had no governmental control of any kind in Ethiopia, and gives as his reason that he had no means of enforcing control there. He was not considering or deciding questions of title to property in this country, where, if the plaintiff has a title, that title can be enforced. Both Luther v. James Sagor & Co. and the Bank of Ethiopia v. National Bank of Egypt and Liguori were considered by the Court of Appeal in the recent case of Banco de Bilbao v. Sancha. [1938] 2 K.B. 176, 195. The judgment of the Court was delivered by Clauson L. J., and he summarizes the principles laid down in them in the following terms: "This Court is bound to treat the acts of the government which His Majesty's Government recognize as the de facto government of the area in question as acts which cannot be impugned as the acts of an usurping government, and conversely the Court must be bound to treat the acts of a rival government claiming jurisdiction over the same area, even if the latter government be recognized by His Majesty's Government as the de jure government of the area, as a mere nullity, and as matters which cannot be taken into account in any way in any of His Majesty's Courts." This passage seems to me to make it plain that what has been decided in Luther v. James Sagor & Co. and the Bank of Ethiopia v. National Bank of Egypt and Liguori has reference exclusively to the acts of a de facto government and a de jure government, both recognized as such by



His Majesty's Government and both claiming to have jurisdiction in the same area with reference to persons and property in that area. The principle is that the Courts of this country will recognize and give effect to the acts of the former in relation to persons and property in the governed territory and will disregard and treat as a nullity the acts of the latter. The present case is not concerned with the validity of acts in relation to persons or property in Ethiopia. It is concerned with the title to a chose in action—a debt, recoverable in England. Having considered all the cases cited to me in argument, I have come to the conclusion that the point is not covered by English judicial authority. I have to decide whether it is the law of England that the plaintiff, recognized by His Majesty's Government as the Emperor de jure of Ethiopia, has lost the right to recover the debt in a suit in this country, because the country in which he once ruled has been conquered by Italian arms and because His Majesty's Government recognizes that that country or the greater part of it is now ruled by the Italian Government. It is unfortunate, I think, that the question has to be decided by a judge, for, in deciding it, it is impossible to avoid deciding on a claim made by a foreign sovereign state not a party to the proceedings. For this reason I shall say as little as possible. My judgment is in favour of the plaintiff. I will read first a passage from the judgment of Lord Cairns in United States of America v. Wagner. L.R. 2 Ch. 582, 593. The passage is as follows: "It was contended then, that when a monarch sues in our Courts, he sues as the representative of the state of which he is the sovereign; that the property claimed is looked upon as the property of the people or state; and that he is permitted to sue, not as for his own property, but as the head of the executive government of the state to which the property belongs; and it was contended, in like manner, that when the property belongs to a republic, the head of the executive, or in other words the President, ought to sue for it. "This argument, in my opinion, is founded on a fallacy. The sovereign, in a monarchical form of government, may, as between himself and his subjects, be a trustee for the latter, more or less limited in his powers over the property which he seeks to recover. But in the Courts of Her Majesty, as in diplomatic intercourse with the government of Her Majesty, it is the sovereign, and not the state, or the subjects of the sovereign, that is recognized. From him, and as representing him individually, and not his state or kingdom, is an ambassador received. In him individually, and not in a representative capacity, is the public property assumed by all other states, and by the Courts of other states, to be vested. In a republic, on the other hand, the sovereign power, and with it the public property, is held to remain and to reside in the state itself, and not in any officer of the state. It is from the state that an ambassador is accredited, and it is with the state that the diplomatic intercourse is conducted." I regard this statement as authority for the proposition that when the liability to pay the debt in the suit arose, the right to sue for it and to recover it was vested in the plaintiff. I ask myself why should the fact that the Italian army has conquered Ethiopia and that the Italian Government now rules Ethiopia divest the plaintiff of his right to sue. The only reason can be, I suppose, that the money is not the plaintiff's



own money, and that it is a sum which he is under some obligation to spend for the benefit of the people of Ethiopia—an obligation which he cannot now fulfil. There is a clear answer to this suggestion. I think it undesirable that I should state it. I hold that nothing has happened to divest the title formerly vested in him and that he is entitled to judgment for the sum agreed between the parties as the sum due from the defendants on January 1, 1936. [The defendants appealed.] SIR WILFRED GREENE M.R.: This is an appeal from a judgment of Bennett J. . . .Bennett J., decided in favour of the plaintiff. At the date of the trial the evidence available which was before the learned Judge, so far as it relates to the essential question raised in this appeal, showed that the annexation of Ethiopia by His Majesty the King of Italy had not yet been recognized by His Majesty's Government, but that His Majesty's Government recognized the plaintiff as the de jure Emperor of Ethiopia, and that His Majesty's Government recognized the Italian Government as the Government de facto of virtually the whole of Ethiopia, and such recognition had existed since the second half of December, 1936, that is to say, since a date earlier than the date of the issue of the writ, which was issued on January 4, 1937. Bennett J. held that the events which had taken place in Ethiopia and the other matters which were established before him were not sufficient to divest the plaintiff as still de jure Emperor of Ethiopia, of the right to recover the debt in suit in this country. From that judgment this appeal is brought. The appeal stood in the list for hearing on November 3 last, and it was called to our attention by Mr. Wynn Parry that, on the day before, an announcement had been made by the Prime Minister in the House of Commons from which it appeared that in the course of a few days, or at any rate a very short time, it was the intention of His Majesty's Government to recognize His Majesty the King of Italy as Emperor of Abyssinia, that is to say, that his position would be recognized de jure and no longer merely de facto. It was obvious from that announcement that, if it were carried into effect, the situation of this action would be profoundly affected, because circumstances would then be brought to the knowledge of the Court which would have a very important bearing upon the position of the plaintiff and his rights in respect of the debt in question in the action. Accordingly we thought right to adjourn the hearing of the appeal until a date after the probable date of recognition. We did so for this reason. If we had heard the appeal then, and if we had decided in favour of the respondent, it was clearly a matter which would have been proper for consideration by the House of Lords, and therefore one in which, if we had been asked, we should have granted leave to appeal to that House.... What has happened is this. As appears from a certificate signed by the direction of His Majesty's Principal Secretary of State for Foreign Affairs, dated November 30, 1938, His Majesty's Government no longer recognizes His Majesty Haile Selassie as de jure Emperor of Ethiopia; His Majesty's Government now recognizes His Majesty the King of Italy as de jure Emperor of Ethiopia. From that certificate two things emerge as the result of the recognition thereby evidenced. It is not disputed that in the Courts of this country His Majesty the King of Italy as Emperor of Abyssinia is entitled by succession to the public property of the State of Abyssinia, and the late Emperor of Abyssinia's title thereto is no longer recognized as



existent. Further, it is not disputed that that right of succession is to be dated back at any rate to the date when the de facto recognition, recognition of the King of Italy as the de facto Sovereign of Abyssinia, took place. That was in December, 1936. Accordingly the appeal comes before us upon a footing quite different to that upon which the action stood when it was before Bennett J. We now have the position that in the eye of the law of this country the right to sue in respect of what was held by Bennett J. to be (and no dispute is raised with regard to it) part of the public State property, must be treated hi the Courts of this country as having become vested in His Majesty the King of Italy as from a date, at the latest, in December, 1936, that is to say, before the date of the issue of the writ in this action. Now that being so, the title of the plaintiff to sue is necessarily displaced. When the matter was before Bennett J., the de jure recognition not having taken place, the question that he had to deal with was whether the effect of the de facto conquest of Abyssinia and the recognition de facto of the Italian Government's position in Abyssinia, operated to divest the plaintiff of his title to sue. Whether that decision was right or whether it was wrong is a question we are not called upon to answer, but what is admittedly the case is that if Bennett J. had had before him the state of affairs which we have before us, his decision would have been the other way.... Appeal allowed. Wulfsohn v. Russian Federated Soviet Republic United States: New York Court of Appeals (1923), 138 N.E. 24 The plaintiffs owned a quantity of furs which were stored in Russia. These furs were confiscated by the Russian Government, and the plaintiffs brought an action for conversion. At the time of the action, the Russian Government was unrecognized by the United States, although the plaintiffs admitted that the Russian Federated Soviet Republic was the existing de facto government of Russia. The action failed. THE COURT: . . . The litigation is not in regard to title to property situated within the jurisdiction of our courts, where the result depends upon the effect to be given to the action of some foreign government. Under such circumstances it might be that the theory of the comity of nations would have a place. . . . A different case is presented to us. The government itself is sued for an exercise of sovereignty within its own territories on the theory that such an act, if committed by an individual here, would be a tort under our system of municipal law. It is said that, because of non-recognition by the United States, such an action may be maintained. There is no relation between the premise and the conclusion. The result we reach is based upon more basic considerations than recognition or non-recognition by the United States. Whether or not a government exists, clothed with the power to enforce its authority within its own territory, obeyed by the people over whom it rules, capable of performing the duties and fulfilling the obligation of an independent Power, able to enforce its claims by military force, is a fact, not a theory. For its recognition does not create the State, although it may be desirable. So only are diplomatic relations permitted. Treaties made by the government which it succeeds may again come into effect. It is a testimony of



friendly intentions. Also in the country granting the recognition that act is conclusive as to the government recognised. . . . Again, recognition may become important where the actual existence of a government created by rebellion or otherwise becomes a political question aifecting our neutrality laws, the recognition of the decrees of prize courts, and similar questions. But, except in such circumstances, the fact of the existence of such a government whenever it becomes material may be proved in other ways. Here, however, we need no proof. The fact is conceded. We have an existing government, sovereign within its own territories. There necessarily its jurisdiction is exclusive and absolute. It is susceptible of no limitation not imposed by itself. This is the result of its independence. It may be conceded that its actions should accord with natural justice and equity. If they do not, however, our courts are not competent to review them. They may not bring a foreign sovereign before our bar, not because of comity, but because he has not submitted himself to our laws. Without his consent he is not subject to them. Concededly that is as to a foreign government that has received recognition. .. . But, whether recognised or not, the evil of such an attempt would be the same. "To cite a foreign potentate into a municipal court for any complaint against him in his public capacity is contrary to the law of nations, and an insult which he is entitled to resent," De Haber v. Queen of Portgual (1851), 17 Q.B. 171. In either case, to do so would "vex the peace of nations." In either case the hands of the State Department would be tied. Unwillingly it would find itself involved in disputes it might think unwise. Such is not the proper method of redress, if a citizen of the United States is wronged. The question is a political one, not competent to the courts, but to another department of government. Whenever an act done by a sovereign in his sovereign character is questioned, it becomes a matter of negotiation, or of reprisals or of war. . . . NOTES In Banco Nacional de Cuba v. Sabbatino (1964), 376 U.S. 398, it was held that the severance of diplomatic relations does not affect the access of a foreign sovereign to a domestic court in the role of a plaintiff (pp. 408-412, 437-438); cf. Russian Socialist Federated Soviet Republic v. Cibrario (1923), 235 N.Y. 255.

Salimoff & Co. v. Standard Oil Co. of New York United States: Court of Appeals of New York (1933), 262 N.Y. 220. POUND J.: The Soviet government, by a nationalization decree, confiscated all oil lands in Russia and sold oil extracted therefrom to defendants. The former owners of the property, Russian nationals, join in an equitable action for an accounting on the ground that the confiscatory decrees of the unrecognized Soviet government and the seizure of oil lands thereunder have no other effect in law on the rights of the parties than seizure by bandits. . . . The complaints have been dismissed. [On appeal:] The question is as to the effect on the title of a purchaser from the unrecognized confiscating Soviet Russian government. Does title pass or is the Soviet government no better than a thief, stealing the property of its nationals and giving only a robber's title to stolen property? Plaintiffs contend that the Soviet decrees of confiscation did not divest them of title. When a government which originates in revolution is recognized by the



political department of our government as the de jure government of the country in which it is established, such recognition is retroactive in effect and validates all the actions of the government so recognized from the commencement of its existence. Oetjen v. Central Leather Co., 246 U.S. 297. . . . The courts of one independent government will not sit in judgment upon the validity of the acts of another done within its own territory, even when such government seizes and sells the property of an American citizen within its boundaries. If the Soviet government were a de jure government, it would follow that title to the property in this case must be determined by the result of the confiscatory Soviet decrees. The status of the Soviet government is defined by the Secretary of State's office as follows: 1. The Government of the United States accorded recognition to the Provisional Government of Russia as the successor of the Russian Imperial Government, arid has not accorded recognition to any government in Russia since the overthrow of the Provisional Government of Russia. 2. The Department pf State is cognizant of the fact that the Soviet regime is exercising control and power in territory of the former Russian Empire and the Department of State has no disposition to ignore that fact. 3. The refusal of the Government of the United States to accord recognition to the Soviet regime is not based on the ground that that regime does not exercise control and authority in territory of the former Russian Empire, but on other facts. It follows that the question as to the validity of acts and decrees of a regime, not the subject of diplomatic recognition, becomes a matter to be decided by the courts in an appropriate case. . . . It has been held by the Appellate Division: "Whatever may be said of the property or justice of the nationalizing decrees promulgated by the Soviet government of Russia, those decrees were made by the de facto government of that country, and are there in full force and effect and binding upon all Russian nationals. . . .Under well-established principles of International law and in accordance with the decisions of our courts, the Soviet law and decrees must be given internal effect in that country." Writers have been inclined to the view that where a de facto government reigns supreme within its own territory, the courts should give full effect to its decrees in so far as they affect private rights. Borchard, "The Unrecognized Government in American Courts," (1932), 26 AJ.I.L. 261; Fraenkel, "Juristic Status of Foreign States," (1925), 25 Columbia L.R. 544; Connick, "Effect of Soviet Decrees in American Courts," (1924), 34 Yale L.J. 499; Dickinson, "The Unrecognized Government or State in English and American Law," (1923) 22 Michigan L.R. 29, 118. The courts of this state have not gone so far. The question with us is whether, within Russia, the Soviet decrees have actually attained such effect as to alter the rights and obligations of parties in a manner we may not in justice disregard, even though they do not emanate from a lawfully established authority, recognized politically by the government of the United States. Russian Reinsurance Co. v. Stoddard, 240 N.Y. 149, 157. We have considered the extraterritorial effect of Soviet decrees which liquidated Russian banks (Petrogradsky M.K. Bank v. National City Bank, 253 N.Y. 23) and insurance companies (First Russian Insurance Co. v. Beha9 240 N.Y. 601). We have reached the conclusion in those and similar cases that such decrees had no extraterritorial effect and that the continued existence of such companies, wherever they were found to function outside



of Russia, would be recognized. The consequence has been that corporations non-existent in Soviet Russia have been, like fugitive ghosts endowed with extraterritorial immortality, recognized as existing outside its boundaries. The juristic person, the Russian corporation, dead in the country which created it, has received juridical vivification elsewhere. In this case another situation is presented. The oil property confiscated was taken in Russia from Russian nationals. A recovery in conversion is dependent upon the laws of Russia. . . . When no right of action is created at the place of wrong, no recovery in tort can be had in any other State on account of the wrong. The United States government recognizes that the Soviet government has functioned as a de facto or quasi government since 1917, ruling within its borders. It has recognized its existence as a fact although it has refused diplomatic recognition as one might refuse to recognize an objectionable relative although his actual existence could not be denied. It tells us that it has no disposition to ignore the fact that such government is exercising control and power in territory of the former Russian empire. . . . As a juristic conception what is Soviet Russia? A band of robbers or a overnment? We all know that it is a government. The State Department nows it, the courts, the nations and the man on the street. If it is a government in fact, its decrees have force within its borders and over its nationals. "Recognition does not create the state." . . . It simply gives to a de facto state international status. . . . To refuse to recognize that Soviet Russia is a government regulating the internal affairs of the country, is to give to fictions an air of reality which they do not deserve. The courts cannot create a foreign wrong contrary to the law of the place of the act. Slater v. Mexican National R.R. Company, 194 U.S. 120; American Banana Company v. United Fruit Company, 213 U.S. 347. The cause of action herein arose where the act of confiscation occurred and it must be governed by the law of Soviet Russia. According to the law of nations it did no legal wrong when it confiscated the oil of its own nationals and sold it in Russia to the defendants. Such conduct may lead to governmental refusal to recognize Russia as a country with which the United States may have diplomatic dealings. The confiscation is none the less effective. The government may be objectionable in a political sense. It is not unrecognizable as a real governmental power which can give title to property within its limits. A careful examination of the New York cases reveals some expressions from which it might be inferred that the Soviet government is still to be regarded as a band of thieves, exercising power without authority, but the basic fact of all the cases is stated as follows: "The State of Russia is now governed by the Russian Socialist Federated Soviet Republic. Such government there exists, clothed with power to enforce its authority within its own territory, obeyed by the people over whom it rules, capable of performing the duties and fulfilling the obligations of an independent power and able to enforce its claims by military force." Russian Reinsurance Co. v.Stoddard, 240 N.Y. (1925) 149, 157. The legitimate conclusion is that the existing government cannot be ignored by the courts of this state, so far as the validity of its acts in Russia is concerned, although the attempt is here made to nullify such acts and create a cause of action in tort in favor of Russian nationals against American corporations, purchasers for value from the Soviet government of property in Russia in accordance with Soviet law. . . .




Non-recognition is no answer to defendant's contention, no reason for regarding as of no legal effect the laws of an unrecognized government ruling by force, as the Soviet government in Russia concededly was. "Within its own territory the Soviet was a sovereign power." . . . Orders affirmed. 4) Retroactivity of Recognition Luther v. Sagor Great Britain: Court of Appeal [1921] 3K.B. 532 BANKES L. J.: The action was brought to establish the plaintiff company's right to a quantity of veneer or plywood which had been imported by the defendants from Russia. The plaintiffs' case was that they are a Russian company having a factory or mill at Staraja Russia in Russia for the manufacture of veneer or plywood, and that in the year 1919 the so-called Republican Government of Russia without any right or tide to do so seized all the stock at their mill and subsequently purported to sell the quantity in dispute in this action to the defendants. The plaintiffs contended that the so-called Republican Government had no existence as a government, that it had never been recognized by His Majesty's Government, and that the seizure of their goods was pure robbery. As an alternative they contended that the decree of the so-called government nationalizing all factories, as a result of which their goods were seized, is not a decree which the Courts of this country would recognize. The answer of the defendants was two-fold. In the first place they contended that the Republican Government which had passed the decree nationalizing all factories was the de facto Government of Russia at the time, and had been recognized by His Majesty's Government as such, and that the decree was one to which the Courts of this country could not refuse recognition. Secondly they contended that the plaintiff company was an Esthonian and not a Russian company, and that as a result of the provisions of the treaty of peace between Russia and Esthonia the plaintiffs' complaint must be dealt with by a commission set up in pursuance of art. xiv. of that treaty. Roche, J. decided the two main points in the plaintiffs' favour. Upon the evidence which was before the learned judge I think that his decision was quite right. [1921] 1 K.B. 456. As the case was presented in the Court below the appellants relied on certain letters from the Foreign Office as establishing that His Majesty's Government had recognized the Soviet Government as the de facto Government of Russia. The principal letters are referred to by the learned judge in his judgment. He took the view that the letters relied on did not establish the appellants' contention. In this view I entirely agree. In this Court the appellants asked leave to adduce further evidence, and as the respondents raised no objection, the evidence was given. It consisted of two letters from the Foreign Office dated respectively April 20. and 22, 1921. The first is in reply to a letter dated April 12, which the appellants' solicitors wrote to the Under Secretary of State for Foreign Affairs, asking for a "Certificate for production to the Court of Appeal that the Government of the Russian Socialist Federal Soviet Republic is recognized by His Majesty's Government as the de facto Government of Russia." To this request a reply was received dated April 20, 1921, in these terms: "I am directed by Earl Curzon of Kedleston to refer to your letter of April 12, asking for information as to the relations between His Majesty's Government and the Soviet Government of Russia. I am to inform you that His



Majesty's Government recognize the Soviet Government as the de facto Government of Russia." The letter of April 22 is in reply to a request for information whether His Majesty's Government recognized the Provisional Government of Russia, and as to the period of its duration, and the extent of its jurisdiction. The answer contains (inter alia) the statement that the Provisional Government came into power on March 14, 1917, that it was recognized by His Majesty's Government as the then existing Government of Russia, and that the Constituent Assembly remained hi session until December 13, 1917, when it was dispersed by the Soviet authorities. The statement contained in the letter of April 20 is accepted by the respondents' counsel as the proper and sufficient proof of the recognition of the Soviet Government as the de facto Government of Russia. Under these circumstances the whole aspect of the case is changed, and it becomes necessary to consider matters which were not material in the Court below. The first is a question of law of very considerable importance —namely, what is the effect of the recognition by His Majesty's Government in April, 1921, of the Soviet Government as the de facto Government of Russia upon the past acts of that Government, and how far back, if at all, does that recognition extend. The second is a question of fact, whether sufficient evidence was given to establish the identity of the Soviet Government now recognized by His Majesty's Government with the Government which seized and confiscated and sold the appellants' goods. On the first point counsel have been unable to refer the Court to any English authority. Attention has been called to three cases decided in the Supreme Court of the United States: Williams v. Bruffy, 96 U.S. 176: Underbill v. Hernandez, 168 U.S. 250: and Oetjen v. Central Leather Co., 246 U.S. 297. In none of these cases is any distinction attempted to be drawn in argument between the effect of a recognition of a Government as a de facto government and a recognition of a government as a government de jure, nor is any decision given upon that point; nor, except incidentally, is any mention made as to the effect of the recognition of a government upon its past acts. The mention occurs in two passages, one in the judgment of Field, J. in Williams v. Bruffy, 96 U.S., at 186, where, after discussing the essential differences between the Government of the Confederate States and the two kinds of de facto governments which he says may exist, he explains that the second of the two kinds exists where a portion of the inhabitants of a country have separated themselves from the parent state and established an independent government. "The validity of its acts," he says, "both against the parent state and its citizens or subjects, depends entirely upon its ultimate success. If it fails to establish itself permanently, all such acts perish with it. If it succeed, and become recognized, its acts from the commencement of its existence are upheld as those of an independent nation." The second mention of the point occurs in the judgment of Fuller C. J. in Underhill v. Hernandez, 168 U.S. at 253. He says, in speaking of civil wars: "If the party seeking to dislodge the existing government succeeds, and the independence of the government it has set up is recognized, then the acts of such government from the commencement of its existence are regarded as those of an independent nation." These are weighty expressions of opinion on a question of international law. Neither learned judge cites any authority for his proposition. Each appears to treat the matter as one resting on principle. On principle the views put forward by these learned judges appear to me to be sound, though there may be cases in which the Courts of a country whose government has recognized the government of some other country as the de facto govern-



ment of that country may have to consider at what stage in its development the government so recognized can, to use the language to which I have already to referred of those learned judges, be said to have "commenced its existence." No difficulty of that kind arises in the present case, because, upon the construction which I place upon the communication of the Foreign Office to which I have referred, this Court must treat the Soviet Government, which the Government of this country has now recognized as the de facto Government of Russia, as having commenced its existence at a date anterior to any date material to the dispute between the parties to this appeal. An attempt was made by the respondents' counsel to draw a distinction between the effect of a recognition of a government as a de facto Government and the effect of a recognition of a government as a government de jure, and to say that the latter form of recognition might relate back to acts of state of a date earlier than the date of recognition, whereas the former could not. Wheaton (5th ed. at p. 36) quoting from Mountague Bernard states the distinction between a de jure and a de facto government thus: "A de jure government is one which, in the opinion of the person using the phrase, ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto government is one which is really in possession of them although the possession may be wrongful or precarious." For some purposes no doubt a distinction can be drawn between the effect of the recognition by a sovereign state of the one form of government or of the other, but for the present purpose in my opinion no distinction can be drawn. The Government of this country having, to use the language just quoted, recognized the Soviet Government as the Government really in possession of the powers of sovereignty in Russia, the acts of that Government must be treated by the Courts of this country with all the respect due to the acts of a duly recognized foreign sovereign state. It becomes material now to consider whether the appellants have given sufficient evidence to establish that the confiscation and subsequent sale of the respondents' property were the acts of the Government which His Majesty's Government have now recognized as the de facto Government of Russia. In my opinion they have. The decree of confiscation as set out in the judgment of Roche, J. as reported in [1921] 1 K.B. 470 purports to be "A decree of Council of Commissars for the People." The contract of sale of the goods to the appellants dated August 14, 1920, purports to be made by L. B. Krassin on behalf of the Russian Commercial Delegation. The trade agreement between this country and Russia of March 16, 1921, is made between His Majesty's Government and the Government of the Russian Socialist Federal Soviet Republic, thereinafter referred to as the Russian Soviet Government, and is signed by M. Krassin as the representative of that Government. From the letter from the Foreign Office addressed to Messrs. Linklater of April 22, 1921, it appears that the Soviet authorities dispersed the then Constituent Assembly on December 13, 1917, from which date I think it must be accepted that the Soviet Government assumed the position of the sovereign Government and purported to act as such.. Upon these materials I consider that it is established that the decree of confiscation of June, 1918, the seizure of the plaintiffs' goods in January, 1920, were all acts of the Soviet Government which has now been recognized by His Majesty's Government as the de facto Government of Russia, and must be accepted by the Courts of this country as such.



It is necessary now to deal with the point made by the respondents, that the decree of confiscation of June, 1918, even-if made by the Government which is now recognized by His Majesty's Government as the de facto Government of Russia, is in its nature so immoral, and so contrary to the principles of justice as recognized by this country, that the Courts of this country ought not to pay any attention to it. This is a bold proposition. The question before the Court is not one in which the assistance of the Court is asked to enforce the law of some foreign country to which legitimate objection might be taken, as in Hope v. Hope, 8 De Gex, Mac. & G. 731, and Kaufman v. Gerson [1904] 1 K.B. 591. The question before the Court is as to the title to goods lying in a foreign country which a subject of that country, being the owner of them by the law of that country, has sold under an f.o.b. contract for export to this country. The Court is asked to ignore the law of the foreign country under which the vendor acquired his title, and to lend its assistance to prevent the purchaser dealing with the goods. I do not think that any authority can be produced to support the contention. . . . The respondents' position is rendered all the more difficult from the fact that the vendor in the present case is a duly recognized sovereign state whose law conferred the title which is challenged. Even if it was open to the Courts of this country to consider the morality or justice of the decree of June, 1918, I do not see how the Courts could treat this particular decree otherwise than as the expression by the de facto government of a civilized country of a policy which it considered to be in the best interest of that country. It must be quite immaterial for present purposes that the same views are not entertained by the Government of this country, are repudiated by the vast majority of its citizens, and are not recognized by our laws. Taking the view I do of the point I do not consider it necessary to discuss the authorities to which our attention has been called. Appeal allowed. NOTES Gdynia Ameryka Linie Zeylugowe Spolka Akcyzna v. Boguslawski, [1953] A.C.ll (H.L.) involved the construction of the terms of the certificate of recognition of the Polish Provisional Government of National Unity signed by the British Foreign Secretary. Lord Reid said in part: My Lords, the case for the respondents depends in the first place on the courts of this country being still entitled to recognize as valid acts done in London on July 3, 1945, by Mr. Kwapinski as Minister of Industry, Commerce and Shipping in the Polish Government. The essential facts which give rise to this question can be shortly stated. Early in the war the Polish Government had to leave Poland. After a time it came to London, where it remained until the summer of 1945. Throughout this period it was recognized by the British Government as the government of Poland and it exercised sovereign powers over Polish subjects who were outside enemy-occupied territory. By virtue of pre-war Polish legislation and decrees made by it during the war it had certain powers with regard to the Polish merchant navy, and this case is concerned with the exercise of those powers by Mr. Kwapinski as a minister of that government over the appellant company, which is a Polish shipping company. There is no doubt that the Polish Government in London in fact continued to exercise its powers until midnight of July 5-6, and that thereafter it ceased to be recognized by the British Government as the government of Poland and ceased to act as a government. From that time onwards the British Government recognized as the government of Poland a new Polish Government which had been set up in Poland.



It is said that this new government was established in Poland on June 28 and that thereafter it exercised sovereign powers in Poland: but it did not and could not exercise any powers in Britain before it was recognized by the British Government. The argument for the appellants is that it is a general principle of our law that the recognition of a new government of a foreign country is retrospective and dates back to the time when that new government was first established even though at that time the new government was not in fact in a position to exercise sovereign powers over all the subjects of that country. It is said that the British Government could not simultaneously recognize two different governments as the government of Poland and, therefore, if the recognition of the new government has to be dated back so also must the derecognition (if I may use the word) of the old government be dated back to the same time. The period between the establishment of the new government in Poland and its recognition by the British Government has been conveniently called the twilight period, and the appellants' argument is that, because our recognition of the new government must be dated back to the beginning of the twilight period, therefore our recognition of the old government must now be held by our courts to have been withdrawn from the beginning of that period, with the result that acts of ministers of the old Polish Government in this country during the twilight period must now be held to have been invalid and incapable of creating rights which the courts of this country can enforce. This appears to me to be a startling proposition, and, indeed, the appellants dp not seek to carry it to its logical conclusion. They say that an exception has been recognized in the United States of America (Guaranty Trust Co. v. United States 304 U.S. 126): that this exception, though far reaching, is based not on principle but on convenience; that this exception might well be recognized in this country also; but that if it were it would not avail the respondents in this case. I shall have to return to this matter, and I shall only say at this stage that, if it is found that a principle cannot be applied without the introduction of an anomalous and far-reaching exception, one^may be inclined to doubt the soundness of the principle. The respondents' answer is twofold. They admit that there is a general principle that recognition of a new foreign government is in certain respects retrospective; but they say, in the first place, that the form of the British Government's recognition of the new Polish Government in this case was such as to exclude that principle and, secondly, they say that the principle is much narrower than that put forward by the appellants and that Guaranty Trust Co. v. United States (304 U.S. 126) is not an exception to the principle but an example of its application. They say that the principle does not involve any antedating of the withdrawal of the recognition of the old government. The first argument for the respondents depends on the true meaning and effect of the certificate given by the Secretary of State for Foreign Affairs in connexion with this case. Such a certificate is conclusive at least to this extent. The courts of this country are bound to recognize as the government of a foreign country a government which has been recognized by the British Government and cannot recognize any government which has not been so recognized, and, where recognition has been withdrawn by the British Government from one government and accorded to another, our courts are bound to accept as facts statements of the British Government with regard to that change. I need not consider whether our courts are always bound to accept every statement in a Foreign Office certificate no matter what it may be because there is no suggestion that there is anything in this certificate which should not be accepted. But a certificate, like any other document, must be interpreted by the court in order to find out what it means. This certificate contains three paragraphs. The first is: "1. Up to and including midnight of July 5-6, 1945, His Majesty's Government in the United Kingdom recognized the Polish Government having its headquarters in London as being the Government of Poland, and as from midnight of July 5-6, 1945,



His Majesty's Government in the United Kingdom recognized the Polish Provisional Government of National Unity as the Government of Poland, and as from that date ceased to recognize the former Polish Government having its headquarters in London as being the Government of Poland." If this paragraph stood by itself I should be inclined to think that it was intended to exclude any retrospective effect of the change of recognition. The certificate does not state that the new government was recognized at midnight of July 5-6. It states that it was recognized "as from midnight," and the certificate does not merely state as a historical fact that the old government was recognized up to that time: it goes on to state that "as from that date" the British Government ceased to recognize the old government. This appears to me to imply that the British Government still recognizes that the old government was the government of Poland up to that date and to be inconsistent with any intention that the withdrawal of recognition should be in any way retrospective. But paragraph 1 does not stand alone. In paragraph 2 a message from the new Polish Government is quoted in which the head of that government states that it was formed on June 28. I cannot see what the purpose of the Secretary of State could be in quoting this message if he thought that the recognition of the new government had no retrospective effect. And paragraph 3 seems to make it impossible to suppose that the Secretary of State intended to prevent any retrospective effect, because he said that he was advised "that the question of retroactive effect of recognition of a government is a question of law for decision by the courts." I find the interpretation of the certificate taken as a whole to be a matter of considerable difficulty, but one thing I think is clear. Whether or not it puts the respondents in a better position than they would be in if the certificate were in more general terms, it certainly does not put them in a worse position. So I shall assume that the certificate was not intended to modify, and does not modify, the general principle of the retroactivity of recognition, and I shall proceed to consider what this is. If the respondents can succeed on this issue then it will be unnecessary to determine the precise meaning of the certificate or what effect it would have if it were intended to modify the general principle. There is ample authority for the proposition that the recognition by the British Government of a new government of a foreign country has at least this effect. It enables and requires the courts of this country to regard as valid not only acts done by the new government after its recognition but also acts done by it before its recognition in so far as those acts related to matters under its control at the time when the acts were done. But there appears to be no English authority which goes beyond that. I do not accept the argument for the appellants that this necessarily or logically involves antedating for all purposes the withdrawal of the recognition of the old government. I do not see anything strange or even difficult in our saying that we still recognize that the old government was the Government of Poland up to midnight of July 5-6 but that we also now accept the validity of certain acts done by the new government before that time and while it was still unrecognized by us. Apart from the distinction between recognition de jure and recognition de facto which does not affect this case, we cannot recognize two different governments of the same country at the same time, and the British Government did not in fact recognize both the old and the new government at the same time. But I do not think that it is inconsistent with this principle to say that the recognition of the new government has certain retroactive effects, but that the recognition of the old government remains effective down to the date when it was in fact withdrawn. I can see that there might be difficulties if the old government had purported before withdrawal of recognition to take some action with regard to matters already under the control of the new government, but that does not arise in this case. Counsel for the appellants criticized views expressed in the Court of Appeal that the acts of the old government are valid at any rate unless and until the new government rescinds or repudiates them, and argued that this was a novel



and unsound doctrine. There are, however, many legislative or administrative acts of a government which its successor can undo or nullify in one way or another. I doubt whether more was intended than that there might be cases in which the new government could do this. If it was intended to suggest that acts of the old government which could not have been repudiated or rescinded if they had been done before the twilight period can be repudiated or rescinded simply because they were done during the twilight period although relating to matters still under the control of the old government, then I see no reason why that should be so. But it is unnecessary to decide that because there is no evidence that the new government made any attempt to nullify the acts of the old government on which the respondents rely. I ought also to notice another argument for the appellants. The domicile of the appellant company is in Gdynia, and it is said that the affairs of the company must be regulated by the law for the time being in force there: on July 3, 1945, Gdynia was under the control of the new government and the old government had no authority there. The short answer to that argument is that there is no evidence that the new government was in control of Gdynia on July 3, but, apart from that, I think that the argument is unsound. The respondents do not rely on any articles of association or statutes of the appellant company as conferring powers on the Minister; they rely on powers conferred on the Polish Government by Polish legislation, and the government entitled to operate such powers in London on July 3 was the government which was then recognized as the Government of Poland by the British Government. I have derived much assistance from the judgment of the Supreme Court of the United States in Guaranty Trust Co. v. United States (304 U.S. 126), and I do not think that anything that I have said is in conflict with any part of it. The appellants found upon this sentence in that judgment: "The argument thus ignores the distinction between the effect of our recognition of a foreign government with respect to its acts within its own territory prior to recognition, and the effect upon previous transactions consummated here between its predecessor and our own nationals." They fasten upon the words "transactions consummated" and "our own nationals," and argue that if the transaction with the old government liad not reached the stage at which it could be said to have been consummated, or if the transaction was not between the old government and a British subject, but was between the old government and a Polish subject then it was not within the ratio decidendi of the Guaranty Trust case. I do not so read that judgment; it appears to me that those words were used because they fitted the facts of that case and the real distinction stated in the sentence which I have quoted seems to me to be between acts of the new government "within its own territory prior to recognition" and transactions by the old government "here" while it was still recognized. So reading the judgment I am in complete agreement with it. It follows that Mr. Kwapinski's acts on July 3, 1945, are no less valid than they would have been if done before the beginning of the twilight period. In Estonian State Cargo and Passenger Line v. S.S. Elise and Messrs. Laare and Baltster, [1948] 4 D.L.R. 247, rev. on other grounds [1949] 2 D.L.R. 641 (infra on the question of the immorality of decrees of confiscation), the Court considered a letter from the Department of External Affairs which stated that Canada "does not recognise de facto the Republic of Estonia as constituted prior to June 1940 . . . [and which] has ceased de facto to have any effective existence. Instead the Government of the Estonian Soviet Socialist Republic was recognised "to be the de facto Government of Estonia, [which] has de facto entered" the Soviet Union. The letter was dated January 1947, but the court held that it was retroactively effective to the time of the establishment of the Government in June 1940. For the text see supra, p. 145. Also Nisot, Is Recognition of a Government Retroactive? (1943), 21 Can. Bar Rev. 627. See also Haile Selassie v. Cable and Wireless Ltd. (No.2), [1939] 1 Ch. 182, at p. 197, supra p. 161.



In Civil Air Transport Incorporated y. Central Air Transport Corporation, [1953] A.C. 70, the Privy Council considered a case in which the Nationalist Government of China, at a time when it had been recognized by His Majesty's Government as the de jure government of China, had entered into a contract with an American partnership for the sale of certain civil aircraft belonging to the Chinese Government. By the date of the contract, the aircraft had been flown by employees of the Nationalist Government to Hong Kong, where they were grounded. There, the appellant corporation bought them from the partnership. Suit was brought by the respondent corporation (an organ of the succeeding Communist Government of China) claiming the contract between the Nationalist Government and the partnership to be invalid, since subsequent to the date of the contract the Communist Government had been recognized by His Majesty's Government as the de jure government of China. The Privy Council held, however, that the contract as made was effective to pass the property in, and title to, the aircraft to the purchasers. A government's policy in selling chattels which it owned was not held subject to the review of foreign tribunals, and whether its action in that regard was against the interests of its people was a political question on which British Courts could not pronounce. The subsequent recognition de jure of the Communist Government did not operate retroactively to annul the passing of the property in the aircraft and extinguish the title of the purchasers. Primarily, retroactivity of recognition operates to validate acts of a de facto government which has subsequently become the new de jure government, and not to invalidate acts of the previous de jure government. Whatever degree of physical control over the aircraft in Hong Kong was maintained by ex-employees of the Nationalist Government (who had defected from that government, though they remained in Hong Kong), that control was in defiance of an injunction granted by the Supreme Court of Hong Kong, and moreover, if those persons could be regarded as acting on behalf of the then de facto Communist Government, their action was an infringement of the Representation of Foreign Powers (Control) Ordinance, 1949, and a criminal offence in Hong Kong, and in those circumstances their action in illegally taking control of the aircraft could not give ground for the principle of retroactivity. Conclusion. The following rules of general applicability can be drawn from the cases on recognition discussed above (International Law I (1964), 27-161-1, U.S. Army, p. 43). 1. The acts of an unrecognized government done within its own territory are not examined by foreign courts, either on the theory of the act of State doctrine (see infra, p. 1016) or under the fiction of the retroactivity of recognition. (Luther v. Sagor, [1921] 3 K.B. 532 (C.A.); Wulfsohn v. Russian Socialist Fed. Sov. Rep. (1923), 234 N.Y. 372; Salimoff v. Standard Oil Co. (1933), 262 N.Y. 220.) 2. The acts of an unrecognized government done outside its own territory are given little or no weight (Civil Air Transport v. Central Air Transport Corp. [1952] 2 All E.R. 733; Russian Socialist Fed. Sov. Rep. v. Cibrario (1923), 235 N.Y. 255.) 3. The acts of a recognized but deposed government done outside its territory retain their validity. (Lehigh Valley R. Co. v. State of Russia (1927), 21 F 2d 396; Haile Selassie v. Cable and Wireless Ltd. (193840), Annual Digest 94; Civil Air Transport v. Central Air Transport Corp., [1952], 2 All E.R. 733.) 4. The retroactivity of recognition is a doctrine of limited applicability, confined primarily to the acts of revolutionary governments before they have established themselves in power, and to the external acts of a government before recognition which were not in conflict with acts of the deposed but then still recognized government. (United States v. Pink (1942), 315



U.S. 203; Civil Air Transport, Inc. v. Central Air Transport Corporation, [1952J2AUE.R. 733.) 5) Recognition of Belligerency: Insurgency Hackworth in his Digest of International Law (1940), vol. 1, discusses belligerency at pp. 318-319-320, s. 53: "The term belligerency presupposes the existence of a state of war between two or more states, or actual hostilities amounting to civil war within a single state. It is in the latter sense that the term belligerency is here used. The existence of war between two states does not require recognition on the part of neutral states in order to entitle the contending parties to the rights and to subject them to the obligations of belligerents. "The question whether recognition of belligerency shall be extended to an insurgent force is a matter for determination by the recognizing state. There is no obligation to recognize that such a status exists; in fact there may be strong reasons why recognition should not be extended. Recognition of a state of belligerency before the conflict has assumed the proportions of civil war, as distinguished from an uprising which the recognized government may be able readily to suppress, may be regarded by the established government as premature and as a gratuitous interference by the foreign state in a matter entirely domestic in character. On the other hand situations may develop during the course of a civil conflict wherein the interests of the foreign state on land or sea are so affected as to make it imperative, as a matter of policy, to recognize the existence of a state of belligerency. "Recognition of belligerency by a state not a party to the contest is frequently announced in a formal proclamation of neutrality between the contending parties, but, as in the case of new states and new governments, such recognition is not necessarily expressed. It may be implied from any act indicating a clear intention to accord regular belligerent rights to the insurgents. Accordingly, in dealing with insurgent groups or entities whom it is not desired to recognize as having a belligerent status, care is usually exercised to make it clear that it is not thereby intended to extend recognition. Recognition by the parent state may likewise be either explicit or implicit, as, for example, through the proclamation of a blockade of ports held by insurgent forces. Questions have occasionally arisen whether formal acquiescence by a foreign state in such a blockade might not constitute a recognition by it of a status of belligerency between the contending forces." United States v. Three Friends United States: United States Supreme Court, 1897. 166 U.S. 1, 41 L. ed. 897, 17 Sup. Ct. 495. The steamer Three Friends was seized November 7, 1896, by the collector of customs for the district of St. Johns, Florida, as forfeited to the United States under U.S. Rev. Stat. § 5283 which stated: "Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming, of any vessel with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, or who issues or delivers a commission within



the territory or jurisdiction of the United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than $10,000, and imprisoned not more than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited; one half to the use of the informer, and the other half to the use of the United States." On November 12, she was libeled on behalf of the United States in the district court for the southern district of Florida. MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the Court: The libel alleged that the vessel was "furnished, fitted out and armed, with intent that she should be employed in the service of a certain people, to wit, certain people then engaged in armed resistance to the government of the King of Spain, in the island of Cuba, to cruise and commit hostilities against the subjects, citizens, and property of the King of Spain, in the island of Cuba, with whom the United States are and were at the date at peace." The learned district judge held that this was insufficient under U.S. Rev. Stat. § 5283, because it was not alleged "that said vessel had been fitted out with intent that she be employed in the service of a foreign prince or state, or of any colony, district, or people recognized as such by the political power of the United States." Of course a political community whose independence has been recognized is a "state" under the act; and, if a body embarked in a revolutionary political movement, whose independence has not been, but whose belligerency has been, recognized, is also embraced by that term, then the words, "colony, district, or people," instead of being limited to a political community which has been recognized as a belligerent, must necessarily be held applicable to a body of insurgents associated together in a common political enterprise and carrying on hostilities against the parent country, in the effort to achieve independence, although recognition of belligerency has not be accorded. And as, agreeably to the principles of international law and the reason of the thing, the recognition of belligerency, while not conferring all the rights of an independent state, concedes to the government recognized the rights, and imposes upon it the obligations, of an independent state in matters relating to the war being waged, no adequate ground is perceived for holding that acts in aid of such a Government are not in aid of a state in the sense of the statute. . . . Even if the word "state" as previously employed admitted of a less liberal signification, why should the meaning of the words "colony, district, or people" be confined only to parties recognized as belligerent? Neither of these words is used as equivalent to the word "state," for they were added to enlarge the scope of a statute which already contained that word. The statute does not say foreign colony, district, or people, nor was it necessary, for the reference is to that which is part of the dominion of a foreign prince or state, though acting in hostility to such prince or state. Nor are the words apt if confined to a belligerent. As argued by counsel for the government, an insurgent colony under the act is the same before as after the recognition of belligerency, as shown by the instance of the colonies of Buenos Aires and Paraguay, the belligerency of one having been recognized



but not of the other, while the statute was plainly applicable to both. Nor is district an appropriate designation of a recognized power de facto, since such a power would represent, not the territory actually held, but the territory covered by the claim of sovereignty. And the word "people," when not used as the equivalent of state or nation, must apply to a body of persons less than a state or nation, and this meaning would be satisfied by considering it as applicable to any consolidated political body. . . . . . . While the word "people" may mean the entire body of the inhabitants of a state, or the state or nation collectively in its political capacity, or the ruling power of the country, its meaning in this branch of the section, taken in connection with the words "colony" and "district," covers in our judgment any insurgent or insurrectionary "body of people acting together, undertaking and conducting hostilities," although its belligerency has not been recognized. Nor is this view otherwise than confirmed by the use made of the same words in the succeeding part of the sentence, for they are there employed in another connection, that is, in relation to the cruising, or the commission of hostilities, "against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace"; and, as thus used, are affected by obviously different considerations. If the necessity of recognition in respect of the objects of hostilities, by sea or land, were conceded, that would not involve the concession of such necessity in respect of those for whose service the vessel is fitted out. Any other conclusion rests on the unreasonable assumption that the Act is to remain ineffectual unless the government incurs the restraints and liabilities incident to an acknowledgement of belligerency. On the one hand, pecuniary demands, reprisals, or even war, may be the consequence of failure in the performance of obligations towards a friendly power, while, on the other, the recognition of belligerency involves the rights of blockade, visitation, search and seizure of contraband articles on the high seas and abandonment of claims for reparation on account of damages suffered by our citizens from the prevalence of warfare. No intention to circumscribe the means of avoiding the one by imposing as a condition the acceptance of the contingencies of the other can be imputed. Belligerency is recognized when a political struggle has attained a certain magnitude and affects the interests of the recognizing power; and in the instance of maritime operations, recognition may be compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates. The Ambrose Light, 25 Fed. Rep. 408; 3 Wharton International Law Dig. § 381, and authorities cited. But it belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and intention expressed. The distinction between recognition of belligerency and recognition of a condition of political revolt, between recognition of the existence of war in a material sense and of war in a legal sense, is sharply illustrated by the case before us. For here the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing before, at the time, and since this forfeiture is alleged to have been incurred.



On June 12, 1895, a formal proclamation was issued by the President and countersigned by the Secretary of State, informing the people of the United States that the island of Cuba was "the seat of serious civil disturbances, accompanied by armed resistance to the authority of the established government of Spain, a power with which the United States are and desire to remain on terms of peace and amity"; declaring that "the laws of the United States prohibit their citizens, as well as all others being within and subject to their jurisdiction, from taking part in such disturbances adversely to such established government, by accepting or exercising commissions for warlike service against it, by enlistment or procuring others to enlist for such service, by fitting out or arming or procuring to be fitted out and armed ships of war for such service, by augmenting the force of any ship of war engaged in such service and arriving in a port of the United States, and by setting on foot or providing or preparing the means for military enterprises to be carried on from the United States against the territory of such government"; and admonishing all such citizens and other persons to abstain from any violation of these laws. In his annual message of December 2, 1895, the President said: "Cuba is again gravely disturbed. An insurrection, in some respects more active than the last preceding revolt, which continued from 1868 to 1878, now exists in a large part of the eastern interior of the island, menacing even some populations on the coast. Besides deranging the commercial exchanges of the island, of which our country takes the predominant share, this flagrant condition of hostilities, by arousing sentimental sympathy and inciting adventurous support among our people, has entailed earnest effort on the part of this government to enforce obedience to our neutrality laws and to prevent the territory of the United States from being abused as a vantage ground from which to aid those in arms against Spanish sovereignty. "Whatever may be the traditional sympathy of our countrymen as individuals with a people who seem to be struggling for larger autonomy and greater freedom, deepened as such sympathy naturally must be in behalf of our neighbors, yet the plain duty of their government is to observe in good faith the recognized obligations of international relationship. The performance of this duty should not be made more difficult by a disregard on the part of our citizens of the obligations growing out of their allegiance to their country, which should restrain them from violating as individuals the neutrality which the nation of which they are members is bound to observe in its relations to friendly sovereign states. .. . July 27, 1896, a further proclamation was promulgated, and in the annual message of December 7, 1896, the President called attention to the fact that "the insurrection in Cuba still continues with all its perplexities," and gave an extended review of the situation. We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowledgment of the insurgents as belligerents by the political department has not taken place; and it cannot be doubted that, this being so, the act in question is applicable. We see no justification for importing into U. S. Rev. Stat. § 5283, words which it does not contain and which would make its operation depend upon the recognition of belligerency; and while the libel might have been



drawn with somewhat greater precision, we are of opinion that it should not have been dismissed. . . . The decree must be reversed, and the cause remanded to the district court with directions to resume custody of the vessel and proceed with the case in conformity with this opinion. Ordered accordingly. G) CONTINUITY OF STATES— EXTINCTION OF STATES AND STATE SUCCESSION IN INTERNATIONAL LAW 1) Continuity of States Hackworth, Digest of International Law (1940), vol. 1, pp. 127, 387: "Once a state has come into existence it continues until it is extinguished by absorption or dissolution. A government, the instrumentality through which a state functions, may change from time to time both as to form— as from a monarchy to a republic—and as to the head of the government without affecting the continuity or identity of the state as an international person. . . . "It follows from the fact of continuity of state life that all rights and title to property belonging to a state continue to vest in it regardless of changes in its government. The extension or failure to extend recognition to the government does not affect such continuity. This is the view taken by the courts. The courts do, however, consider themselves bound by the decision of the executive as to the government authorized to represent the foreign state." The Sapphire United States: United States Supreme Court (1871), 11 Wallace 164 This was an appeal from the Circuit Court of the United States for the District of California. The case concerned a collision between the American ship Sapphire and the French transport Euryale which took place in the harbor of San Francisco on the morning of December 22, 1867, and by which the Euryale was considerably damaged. A libel was filed in the District Court two days afterwards, in the name of the Emperor Napoleon III, then Emperor of the French, as owner of the Euryale, against the Sapphire. The claimants filed an answer, alleging, among other things, that the damage was occasioned by the fault of the Euryale. Depositions were taken, and the court decreed in favor of the libellant, awarding him $15,000, the total amount claimed. The claimants appealed to the Circuit Court, which affirmed the decree. They then, in July, 1869, appealed to this court. In the summer of 1870, Napoleon III was deposed. The case came to be argued here February 16, 1871. Three questions were raised: 1. The right of the Emperor of France to have brought suit in our courts. 2. Whether, if rightly brought, the suit had not become abated by the deposition of the Emperor Napoleon III. 3. The question of merits; one involving fact, and depending upon evidence stated towards the conclusion of the opinion, where the point is considered. MR. JUSTICE BRADLEY delivered the opinion of the court. The first question raised is as to the right of the French Emperor to sue in our courts. On this point not the slightest difficulty exists. A foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here, may prosecute it in our courts. To



deny him this privilege would manifest a want of comity and friendly feeling. The Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens or or subjects, without reference to the subject-matter of the controversy. Our own government has largely availed itself of the like privilege to bring suits in the English courts in cases growing out of our late civil war. There are numerous cases in the English reports in which suits of foreign sovereigns have been sustained, though it is held that a sovereign cannot be forced into court by suit. The next question is, whether the suit has become abated by the recent deposition of the Emperor Napoleon. We think it has not. The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and perpetual, residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euryale, not as an individual, but as sovereign of France. This is substantially averred in the libel. On his deposition the sovereignty does not change, but merely the person or persons in whom it resides. The foreign state is the true and real owner of its public vessels of war. The reigning Emperor, or National Assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty. A change in such representative works no change in the national sovereignty or its rights. The next successor recognized by our government is competent to carry on a suit already commenced and receive the fruits of it. A deed to or treaty with a sovereign as such enures to his successors in the government of the country. If a substitution of names is necessary or proper it is a formal matter, and can be made by the court under its general power to preserve due symmetry in its forms of proceeding. No allegation has been made that any change in the real and substantial ownership of the Euryale has occurred by the recent devolution of the sovereign power. The vessel has always belonged and still belongs to the French nation. If a special case should arise in which it could be shown that injustice to the other party would ensue from a continuance of the proceedings after the death or deposition of a sovereign, the court, in the exercise of its discretionary power, would take such order as the exigency might require to prevent such a result. The remaining question relates to the merits of the case. And on the merits of the case, as presented by the record, we think that the court below erred in imposing the whole damage upon the Sapphire. We think that the Euryale was equally in fault, and that the damage ought to be divided between them. . . . NOTES Cf. Haile Selassi v. Cable and Wireless Ltd. (No.2), [1939] 1 Ch.182, supra, p. 161. Pitt Cobbett, in Cases on International Law, vol. I (6th ed. by Walker, 1947), says at p. 33: "Once established or recognized as an international person, a State will retain its personality notwithstanding any subsequent changes of government, however considerable, for these are at bottom only changes in the agency by which it is internationally represented. It will also continue notwithstanding any subsequent changes of territory, so long as what remains can be considered as perpetuating the national being. But it will cease to exist if it becomes absorbed into another State, whether as the result of conquest or agreement; or if it is split up into new States, in such a way that its original identity is lost." (Quoted with permission of Stevens & Sons, Limited, publishers.)



Lehigh Valley Railroad Co. v. The State of Russia United States: Circuit Court of Appeals, Second Circuit (1927), 21 F (2d) 396 In an action for damages resulting from the destruction of certain property belonging to the Imperial Russian Government while in the custody of the defendant (brought by the attorneys for the Russian Government upon the authority of Boris Bakhmetieff, who had been accredited to the United States as Ambassador by the Provisional Government, successor to the Imperial Russian Government, on July 5, 1917), the District Court of the United States for the Southern District of New York denied a motion to dismiss the action on the ground that there was in existence no "Russian government" and therefore no plaintiff. The court, declaring itself to be bound by the action of the political department of the Government in continuing to recognize Bakhmetieff as the Ambassador of the Russian Government in the United States, said: "It may, however, be observed that the importance of recognizing governmental continuity, quite irrespective of considerations as to the existing form of a foreign government, or as to the human beings in control at any particular time, is well illustrated in this case, where it is sought to deprive a foreign state forever of the opportunity to be heard in an effort to recover for the loss of property which belonged to the foreign state; i.e., the 'Russian government,' by whatever name called. It may also be noted, in passing, that the executive and judicial branches of the government have recognized 'the present government of Russia' in proceedings to naturalize Russian subjects. Since the fall of the Imperial Russian government, such applicants for citizenship forswear allegiance to 'the present government of Russia.' " In further proceedings in the same case, the district court (in its opinion of October 2, 1923 ) said with reference to this point: "Does the fact that the government to [by] which Mr. Bakhmetieff was accredited has fallen, and that no other government in Russia has been recognized by the United States, cause these actions to be abated? Or does the fact that the custody of the property for which Mr. Bakhmetieff has been responsible was considered by our government to vest in Mr. Ughet, whose diplomatic status was not considered to be altered save them? That the real party in interest is the state of Russia, and that Russia, the state, still lives and is a continuing entity in the contemplation of the law, is true." The view taken by the district court in these two decisions was sustained on appeal by the Circuit Court of Appeals for the Second Circuit, which declared in its decision of August 8, 1927: Abatement of the action or a dismissal could only be sustained by reason of the non-existence of the state, or the action of our government to no longer recognize the agency once accredited and never revoked. The action was properly started by an unquestioned agency. The attorneys and the agency thus employed were obliged to continue until some other government was recognized. It has been recognized that diplomatic agents of one state, while in another, may commence and maintain actions on behalf of their state while they are recognized as such. Republic of Mexico v. De Arangoiz, 12 N.Y. Super Ct. 643. Proof of the agency or of the diplomat is dependent entirely upon the political fact of the recognition by the political department of the government. The courts may not independently make inquiry as to who should or should not be recognized. The argument of the plaintiff in error is directed entirely toward the court making



its own investigation, in expectation that there would be some other government found, either de facto or de jure. This we may not do. If it be a fact that there is a Russian Social Federated Republic now in charge of the government of Russia, it would bring no different result here. Where there is a change of government, foreign states must of necessity judge for themselves whether they will continue their accustomed diplomatic relations with the prince whom they choose to regard as the legitimate sovereign. Wheaton on International Law, p. 332. It matters little whether the recognized state co-operates in it or not. Moore's Digest of International Law, vol. 1, p. 73. It is for the executive and legislative departments to say in what relations any other country stands toward it. Courts of justice cannot make the decision. Nor does the personal withdrawal of an ambassador affect the relations with the government. And, unless the political department of our government has decided otherwise, the judiciary recognizes the condition of things with respect to another country which once existed, and is still subsisting because of no other recognition. "Changes in the government or die internal polity of a state do not as a rule affect its position in international law. A monarchy may be transformed into a republic, or a republic into a monarchy; absolute principles may be substituted for constitutional, or the reverse; but, though the government changes, the nation remains, with rights and obligations unimpaired." Moore, Digest of International Law, vol. 1, p. 249. The granting or refusal of recognition has nothing to do with the recognition of the state itself. If a foreign state refuses the recognition of a change in the form of government of an old state, this latter does not thereby lose its recognition as an international person. The suit did not abate by the change in the form of government in Russia; the state is perpetual, and survives the form of its government. The recognized government may carry on the suit, at least until the new government becomes accredited here by recognition. The argument that the plaintiff in error may at some future time, if the Soviet regime is recognized by our government, be compelled to pay again what it is obliged to pay now, is fallacious. It is only the acts performed in its own territory that can be validated by the retroactive effect of recognition. Acts theretofore performed outside its own territory cannot be validated by recognition. Following these principles, we agree with the contention of the defendant in error that the state of Russia, as a plaintiff, may continue the prosecution through the agency vested in Mr. Ughet, and the plaintiff in error will be protected as against any possible future claims of a subsequent recognized government of Russia, if payment be made as directed in this judgment. . .. NOTES An application to the Supreme Court, subsequent to the second decision, for a writ of prohibition was denied. Ex parte: In the matter of the Lehigh Valley Railway Company (1924), 265 U.S. 573.

The Tinoco Concessions Great Britain—Costa Rica: Arbitration (1923) 1 U.N. Reports of International Arbitral Awards 369 TAFT, ARBITRATOR: . . . Great Britain contends, first, that the Tinoco government was the only government of Costa Rica de facto and de jure for two years and nine months; that during that time there is no other



government disputing its sovereignty, that it was in peaceful administration of the whole country, with the acquiescence of its people. Second, that the succeeding government could not by legislative decree avoid responsibility for acts of that government affecting British subjects, or appropriate or confiscate rights and property by that government except ia violation of international law; that the act of Nullities is as to British interests, therefore itself a nullity, and is to be disregarded, with the consequence that the contracts validly made with the Tinoco government must be performed by the present Costa Rican Government, and that the property which has been invaded or the rights nullified must be restored. To these contentions the Costa Rican Government answers: First, that the Tinoco government was not a de facto or de jure government according to the rules of international law. This raises an issue of fact. Second, that the contracts and obligations of the Tinoco government, set up by Great Britain on behalf of its subjects, are void, and do not create a legal obligation, because the government of Tinoco and its acts were in violation of the constitution of Costa Rica of 1871. Third, that Great Britain is stopped by the fact that it did not recognize the Tinoco government during its incumbency, to claim on behalf of its subjects that Tinoco's was a government which could confer rights binding on its successor. Fourth, that the subjects of Great Britain, whose claims are here in controversy, were either by contract or the law of Costa Rica bound to pursue their remedies before the courts of Costa Rica and not to seek diplomatic interference on the part of their home government. Dr. John Bassett Moore . . . in his Digest of International Law announces the general principle which has had such universal acquiescence as to become well settled international law: "Changes in the government or in the internal policy of a State do not as a rule affect its position in international law. A monarchy may be transformed into a republic or a republic into a monarchy; absolute principles may be substituted for constitutional, or the reverse; but, though the government changes, the nation remains, with rights and obligations unimpaired . .. "The principle of the continuity of States has important results. The State is bound by engagements entered into by governments that have ceased to exist; the restored government is generally liable for the acts of the usurper." ... Again Dr. Moore says: "The origin and organization of government are questions generally of internal discussion and decision. Foreign Powers deal with the existing de facto government, when sufficiently established to give reasonable assurance of its permanence, and of the acquiescence of those who constitute the State in its ability to maintain itself, and discharge its internal duties and its external obligations." The same principle is announced in Professor Borchard's new work on The Diplomatic Protection of Citizens Abroad: ".. . . A general government de facto having completely taken the place of the regularly constituted authorities in the State binds the nation. So far as its international obligations are concerned, it represents the State. It succeeds to the debts of the regular government it has displaced and transmits its own obligations to succeeding titular governments. Its loans and contracts bind the State and the State is responsible for the governmental acts of the de facto authorities. In general, its treaties are valid obligations of the State. It may alienate the national territory and the judgments of its courts are admitted



to be effective after its authority has ceased. An exception to these rules has occasionally been noted in the practice of some of the States of Latin America, which declare null and void the acts of a usurping de facto intermediary government, when the regular government it has displaced succeeds in restoring its control. Nevertheless, acts validly undertaken in the name of the State and having an international character cannot lightly be repudiated and foreign governments generally insist on their binding force. The legality or constitutional legitimacy of a de facto government is without importance internationally so far as the matter of representing the State is concerned." . . . . . . Throughout the record as made by the case and the counter-case, there is no substantial evidence that Tinoco was not in actual and peaceable administration without resistance or conflict or contest by anyone until a few months before the time when he retired and resigned. . . . The question is, [first] must his government be considered a link in the continuity of the Government of Costa Rica? I must hold that from the evidence the Tinoco government was an actual sovereign government. But it is urged that many leading Powers refused to recognize the Tinoco government, and that recognition by other nations is the chief test and best evidence of the birth, existence and continuity of succession of a government. Undoubtedly recognition by other Powers is an important evidential factor in establishing proof of the existence of a government in the society of nations. . . . Possibly because of the leadership of the United States . . ., her then Allies in the war, Great Britain, France and Italy, declined to recognize the Tinoco government. Costa Rica was, therefore, not permitted to sign the Treaty of Peace at Versailles, although the Tinoco government had declared war against Germany. The merits of the policy of the United States in this non-recognition is not for the arbitrator to discuss, for the reason that in his consideration of this case, he is necessarily controlled by principles of international law, and however justified as a national policy non-recognition on such a ground may be, it certainly has not been acquiesced in by all the nations of the world, which is a condition precedent to considering it as a postulate of international law. The non-recognition by other nations of a government claiming to be a national personality, is usually appropriate evidence that it has not attained the independence and control entitling it by international law to be classed as such. But when recognition vel non of a government is by such nations determined by inquiry, not into its de facto sovereignty and complete governmental control, but into its illegitimacy or irregularity of origin, their non-recognition loses something of evidential weight on the issue with which those applying the rules of international law are alone concerned. What is true of the non-recognition of the United States in its bearing upon the existence of a de facto government under Tinoco for thirty months is probably in a measure true of the non-recognition by her Allies in the European War. Such recognition for any reason, however, cannot outweigh the evidence disclosed by this record before me as to the de facto character of Tinoco's government, according to the standard set by international law. Second. It is ably and earnestly argued on behalf of Costa Rica that the Tinoco government cannot be considered a de facto government, because it was not established and maintained in accord with the constitution of



Costa Rica of 1871. To hold that a government which establishes itself and maintains a peaceful administration, with the acquiescence of the people for a substantial period of tune, does not become a de facto government unless it conforms to a previous constitution would be to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new government. This cannot be, and is not, true. The change by revolution upsets the rule of the authorities in power under the then existing fundamental law, and sets aside the fundamental law in so far as the change of rule makes it necessary. To speak of a revolution creating a de facto government, which conforms to the limitations of the old constitution, is to use a contradiction in terms. The same government continues internationally, but not the internal law of its being. The issue is not whether the new government assumes power or conducts its administration under constitutional limitations established by the people during the incumbency of the government it has overthrown. The question is, has it really established itself in such a way that all within its influence recognize its control, and that there is no opposing force assuming to be a government in its place? Is it discharging its functions as a government usually does, respected within its own jurisdiction? Reference is further made, on behalf of Costa Rica, to the Treaty of Washington, December 20, 1907, entered into by the Republics of Central America, in which it was agreed that—"The governments of the contracting parties will not recognize anyone who rises to power in any of the five republics in consequence of acoup d'etat or by a revolution against a recognized government until the representatives of the people by free elections have reorganized the country in constitutional form." Such a treaty could not affect the rights of subjects of a government not a signatory thereto, or amend or change the rules of international law in the matter of de facto governments. Their action under the treaty could not be of more weight in determining the existence of a de facto government under Tinoco than the policy of the United States, already considered. . . . Third. It is further objected by Costa Rica that Great Britain by her failure to recognize the Tinoco government is estopped now to urge claims of her subjects dependent upon the acts and contracts of the Tinoco government. The evidential weight of such non-recognition against the claim of its de facto character I have already considered and admitted. The contention here goes further and precludes a government from appearing hi an international tribunal in behalf of its nationals to claim any rights based on the acts of such government. To sustain this view a great number of decisions in English and American courts are cited to the point that a municipal court cannot, in litigation before it, recognize or assume the de facto character of a foreign government which the executive department of foreign affairs of the government of which the court is a branch has not recognized. That is clearly true. It is for the executive to decide questions of foreign policy and not courts. It would be most unseemly to have a conflict of opinion in respect to foreign relations of a nation between its department charged with the conduct of its foreign affairs and its judicial branch. But such cases have no bearing on the point before us. Here the executive of Great Britain takes the position that the Tinoco government which it did not recognize, was nevertheless a de facto government that could create rights in British



subjects which it now seeks to protect. Of course, as already emphasized, its failure to recognize the de facto government can be used against it as evidence to disprove the character it now attributes to that government, but this does not bar it from changing its position. Should a case arise in one of its own courts after it has changed its position, doubtless that court would feel it incumbent upon it to note the change in its further rulings. .. . I do not understand the arguments on which an equitable estoppel in such case can rest. The failure to recognize the de facto government did not lead the succeeding government to change its position in any way upon the faith of it. Non-recognition may have aided the succeeding government to come into power; but subsequent presentation of claims based on the de facto existence of the previous government and its dealings does not work an injury to the succeeding government in the nature of a fraud or breach of faith. An equitable estoppel to prove the truth must rest on previous conduct of the person to be estopped, which has led the person claiming the estoppel into a position in which the truth will injure him. There is no such case here. There are other estoppels in municipal law than those which rest on equitable considerations. They are based on public policy. It may be urged that it would be in the interest of the stability of governments and the orderly adjustment of international relations, and so a proper rule of international law, that a government in recognizing or refusing to recognize a government claiming admission to the society of nations should thereafter be held to an attitude consistent with its deliberate conclusion on this issue. Arguments for and against such a rule occur to me; but it suffices to say that I have not been cited to text writers of authority or to decisions of significance indicating a general acquiescence of nations in such a rule. Without this, it cannot be applied here as a principle of international law. . . . The fourth point made on behalf of Costa Rica against the claims here pressed is that both claimants are bound either by their own contractual obligation entered into with the Government of Costa Rica, to which they subscribed, not to present their claims by way of diplomatic intervention of their home government, but to submit their claims to the Courts of Costa Rica. This is in effect a plea in abatement to the jurisdiction of the arbitrator, which under the terms of the arbitration, Costa Rica has the right to advance. . . . [The] limitations [in the concession] do not seem to include within their scope such a question as the power of the Tinoco government to grant the concession, or the obligation of the present government of Costa Rica to recognize it. They cover the interpretation and construction of the contract rather than the fundamental question of its existence. With respect to the Royal Bank, the facts are somewhat different. . . . [But] it is doubtful whether [the] restrictions upon the Bank by their terms go so far as to forbid its appeal for diplomatic intervention in protection of its rights. They show clearly that the powers conferred by the government of its origin cannot enlarge its banking powers in Costa Rica and that its rights are to be decided by Costa Rican Courts and according to Costa Rica law. But to carry this to a denial of a right to diplomatic intervention by its own government to avoid legislative nullification of its rights without a hearing would be going far. It has been held in a number of important arbitrations, and by several foreign secretaries, that such restrictions are not binding upon a home



government and will not prevent it from exercising its diplomatic functions to protect its nationals against the annulment of the rights secured to them by the laws of the country in force when the obligations arose. . . . However this may be, these restrictions upon each claimant would seem to be inapplicable to a case like the present where is involved the obligation of a restored government for the acts or contracts of a usurping government. The courts of the restored government are bound to administer the law of the restored government under its constitution and their decisions are necessarily affected by the limitations of that instrument. This may prevent the courts from giving full effect to international law that may be at variance with the municipal law which under the restored constitution the national courts have to administer. It is obvious that the obligations of a restored government for the acts of the usurping de facto government it succeeds cannot, from the international standpoint, be prejudiced by a constitution which, though restored to life, is for purposes of this discussion, exactly as if it were new legislation which was not in force when the obligations arose. . . . This is not an exceptional instance of an essential difference between the scope and effect of a decision by the highest tribunal of a country and of an international tribunal. The Constitution of the United States makes the Constitution, laws passed in pursuance thereof, and treaties of the United States the supreme law of the land. Under that provision, a treaty may repeal a statute, and a statute may repeal a treaty. The Supreme Court cannot under the Constitution recognize and enforce rights accruing to aliens under a treaty which Congress has repealed by statute. In an international tribunal, however, the unilateral repeal of a treaty by a statute would not affect the rights arising under it and its judgment would necessarily give the effect to the treaty and hold the statute repealing it of no effect. . . . A consideration of the issues before us recurs to the merits of the two claims. The decision of them must be governed by the answer to the question whether the claims would have been good against the Tinoco government as a government, unaffected by the Law of Nullities, and unaffected by the Costa Rican Constitution of 1871.... The most serious objection to the concession is that it was granted by a body without power to grant it. Its validity is . . . to be determined by the law in existence at the time of its granting; and that means the law of the Government of Costa Rica under Tinoco. . . . The government of Tinoco itself could have defeated this concession on the ground of a lack of power in the Chamber of Deputies to approve it. . . . My award is that the Law of Nullities in its operation upon . . . the claim in behalf of the Royal Bank will work no injury of which Great Britain can complain (if Costa Rica assigned to the Bank certain interests in the estate of Tinoco's deceased brother).... My award further is that the Law of Nullities in decreeing the invalidity of the concession worked no injury to the [British company] of which Great Britain can complain, because the concession was in fact invalid under the Constitution of 1917. ... 2) Extinction of States and State Succession i) General Starke, op. cit., says at p. 267: "[In the case of State succession] we are primarily concerned with the transmission of rights or obligations from States which have altered or



lost their identity to other States or entities, such alteration or loss of identity occurring primarily when complete or partial changes of sovereignty take place over portions of territory. The question of international law involved may be summarized as: "(1) To what extent are the existing rights and obligations of the predecessor State extinguished, or where there is a change of sovereignty over portion only of the territory of that State—to what extent do they remain vested in that State? "(2) To what extent does the successor State, i.e., the State to which sovereignty has passed wholly or partially, become entitled to such rights or subject to such obligations?" Ratione materiae succession usually involves treaty rights and obligations, territorial rights, membership of international organizations, and contractual rights and obligations including concessionary contracts, public debts, claims in tort, public funds and public property, nationality, private and municipal law rights etc. Ratione personae succession includes rights and obligations (i) between the new State and the predecessor State; (ii) between the new State and third States; (iii) of the new State with respect to individuals (including legal persons). It is a subject not governed by settled rules. Succession may involve the disappearance of a State, the birth of a new State, a territorial change of States. Succession is said to be "partial" when it occurs as a result of secession, or upon the cession by one State of part of its territory to another State, or upon the dismemberment of an existing State in such a way that its previous identity is lost. Succession is "universal" when one State merges in its entirety in another State. Such a merger may arise out of the union of two or more States formerly independent, so as to form an entirely new State, or out of the peaceful absorption of ofte State by another State or by a union of States. It may also arise out of the annexation of one State by another as the result of conquest. In all these cases, the rights and obligations of the successor are'usually governed by the pact of Union, or by the terms of the treaty of cession or of peace, as the case may be. West Rand Central Gold Mining Co. Ltd. v. The King [1905] 2 K. B. 391, supra, p. 30

See also United States v. Prioleau (1865), 71 Eng. Rep. 580.

Claim of Robert E. Brown United States Great Britain Claims Arbitration Tribunal (1923) , 6 U.N. Reports of International Arbitral Awards 120, (1923), 19 Am. J. Int. L. 193 THE TRIBUNAL: NERINCX, FITZPATRICK, POUND: The United States claims $330,000, with interest, from Great Britain on account of the alleged denial of certain real property rights contended to have been acquired in 1895, by one Robert E. Brown in the territory of the South African Republic which was conquered and annexed by Great Britain on September 1, 1900. The material facts are as follows: Brown, an American citizen, and a mining engineer by profession, went to South Africa in the year 1894. He became interested in gold mining prospects, and in 1895 devoted particular Attention to a piece of property known as the Witfontein farm through which, in his judgment as well as in that of many others, the principal gold-bearing reef of that region was supposed to run. Under the prevailing system governing the disposal and



acquisition of mining rights, the State, being the owner of all minerals, subject to certain preferential rights of the land proprietors, was accustomed from time to time by proclamation to throw open for the prospecting and location of mining claims specified tracts of land. On June 18, 1895, a proclamation was duly issued by the State President declaring the eastern portion of the Witfontein farm a public digging under the administration of the Responsible Clerk at Doornkop, such proclamation to take effect on July 19, 1895. Brown made elaborate preparations for the opening by placing on the land a large number of agents, and among other things, arranged to transmit by heliograph to Witfontein from Doornkop, about 20 miles away, the news of the actual granting of licences so that his agents might act without delay and stake out claims in advance of all competitors. These arrangements being perfected, Brown himself appeared at the office of the Responsible Clerk at Doornkop at 8.30 o'clock on the morning of July 19, 1895, and made a formal application for 1,200 prospecting licences. The Clerk declined to issue the licences, and postponed further action until 10 o'clock of the same morning, stating that he was awaiting definite advices from the seat of government. Brown thereupon handed to the Clerk a written demand for 1,200 licences. Shortly thereafter, and before 10 o'clock, the Clerk received a telegram from the seat of government announcing the withdrawal of the proclamation under which Witfontein had been thrown open as a public digging. Brown again protested and made a tender of the money for the licences, which was refused. He then heliographed his agents at Witfontein to go ahead and peg out the claims himself proceeding to the scene where he arrived about noon. Pursuant to his instructions, 1,200 mining claims were in fact pegged, and Brown subsequently asserted title to them on the ground that the withdrawal of the original proclamation was invalid and that the Clerk had no right to refuse issuance of the licences. Other parties acted in the same manner. It appears that on the day preceding the opening of Witfontein under the proclamation, to wit: on July 18, 1895, the Executive Council at Pretoria, by resolution, provided for the suspension of the proclamation and on July 20, 1895, the State President, on the advice of the same Council caused a second proclamation to be published in the Official Gazette, adjourning the opening of Witfontein for the period of fourteen days, to wit: until August 2, 1895. On July 22, 1895, Brown began a suit in the High Court of the South African Republic demanding the licences to cover the 1,200 claims which he had in fact already pegged off. The case came on for trial November 15, 1895, and on January 22, 1897, judgment was given in Brown's favour. Briefly, the Court held, that the original proclamation was valid and duly published according to law; that it could not be withdrawn or set aside save by a new proclamation duly published in the same manner; that the order suspending the operation of the proclamation not being published in the Official Gazette until the day after the date fixed for the opening, was ineffectual; and that there was consequently no legal warrant for refusing the licenses on July 19, 1895. The licenses for 1,200 prospecting claims good for one month were issued. The customary privilege of renewal being denied, Brown's representative found the licence of no practical value, and was obliged to fall back upon the alternative claim for damages. The case did not come on to be heard until March 2, 1898, after the dis-



missal of the Chief Justice and the reorganization of the Court with Justices sworn to abandon all right to test laws and resolutions by reference to the Constitution. The disposition to defeat Brown's claim at any cost was at once disclosed by the Government's attitude upon this hearing. Although Brown had been invited specifically by the High Court, in the event of his being unable to secure the claims, to proceed upon notice for the purpose of bringing forward his alternative claim for damages, the Government now contended and the Court decided that such procedure was improper and that the only way in which he could proceed was by the institution of a new suit for damages. It will be remembered that the alternative claim for damages had been made in the action and issue joined upon it. Furthermore, the Court had permitted the same procedure by notice and motion in another suit brought by the Elias Syndicate on almost identical facts. This precedent was waived aside. . . . The significance of this disposition of the motion by the reconstituted High Court has been the subject of much argument. Brown's attorneys at the time took the position that the effect of this second order of judgment was to throw him out of court and deprive him of the benefit of his previous judgment. Two main questions arise on these facts: First, whether there was a denial of justice in any event; and second, whether in case a denial of justice is found, any claim for damages based upon it can be made to lie against the British Government. On the first point we are of opinion that Brown had substantial rights of a character entitling him to an interest in real property or to damages for the deprivation thereof, and that he was deprived of these rights by the Government of the South African Republic in such manner and under such circumstances as to amount to a denial of justice within the settled principles of international law.... On this branch of the case we are satisfied, therefore, that there was a real denial of justice, and that if there had never been any war, or annexation by Great Britain, and if this proceeding were directed against the South African Republic, we should have no difficulty in rewarding damages on behalf of the claimant. Passing to the second main question involved, we are equally clear that this liability never passed to or was assumed by the British Government. Neither in the terms of peace granted at the time of the surrender of the Boer forces, nor in the Proclamation of Annexation, can there be found any provision referring to the assumption of liabilities of this nature. It should be borne in mind that this was simply a pending claim for damages against certain officials and had never become a liquidated debt of the former State. Nor is there, properly speaking, any question of State succession here involved. The United States plants itself squarely on two propositions: first, that the British Government, by the acts of its own officials with respect to Brown's case, has become liable to him; and, second, that in some way a liability was imposed upon the British Government by reason of the peculiar relation of suzerainty which is maintained with respect to the South African Republic. The first of these contentions is set forth in the Reply as follows: "The United States reaffirms that Brown suffered a denial of justice at the hands of authorities of the South African Republic. Had it not been for this denial of justice, it may be assumed that a diplomatic claim would not have arisen. But it does not follow that, as is contended in His Majesty's



Government's Answer, it is incumbent on the United States to show that there is a rule of international law imposing liability on His Majesty's Government for the tortious acts of the South African Republic. Occurrences which took place during the existence of the South African Republic are obviously relevant and important in connection with the case before the Tribunal, but the United States contends that acts of the British Government and of British officials and the general position taken by them with respect to Brown's case have fixed liability on His Majesty's Government." Again on page 8 of the Reply it is said: "The succeeding British authorities to whom Brown applied for the licenses to which he had been declared entitled by the Court also refused to grant the licenses, and therefore refused to carry out the decree of the Court which the United States contends was binding on them. And they have steadfastly refused to make compensation to Brown in lieu of the licenses to which the Court declared Brown to be entitled, failing the granting of the licenses." The American Agent quoted these passages in his oral argument, and disclaimed any intention of maintaining "that there is any general liability for torts of a defunct State." We have searched the record for any indication that the British authorities did more than leave this matter exactly where it stood when annexation took place. They did not redress the wrong which had been committed, nor did they place any obstacles in Brown's path; they took no action one way or the other. No British official nor any British court undertook to deny Brown justice or to perpetuate the wrong. The Attorney General of the Colony, in his opinion, declared that the courts were still open to the claimant. The contention of the American Agent amounts to an assertion that a succeeding State acquiring a territory by conquest without any undertaking to assume such liabilities is bound to take affirmative steps to right the wrongs done by the former State. We cannot indorse this doctrine. The point as to suzerainty is likewise not well taken. It is not necessary to trace the vicissitudes of the South African State in its relation to the British Crown, from the Sand River Convention of 1852, through the annexation of 1877, the Pretoria Convention of 1881, and the London Convention of 1884, to the definitive annexation in 1900. We may grant that a special relation between Great Britain and the South African State, varying considerably in its scope and significance from time to time, existed from the beginning. No doubt Great Britain's position in South Africa imposed upon her a peculiar status and responsibility. She repeatedly declared and asserted her authority as the so-called paramount power in the region; but the authority which she exerted over the South African Republic certainly at the time of the occurrences here under consideration, in our judgment fell far short of what would be required to make her responsible for the wrong inflicted upon Brown. Concededly, the general relation of suzerainty created by the Pretoria Convention of 1881, survived after the concluding of the London Convention of 1884. Nevertheless the specific authority of the suzerain power was materially changed, and under the 1884 Convention it is plain that Great Britain as suzerain, reserved only a qualified control over the relations of the South African Republic with foreign Powers. . . . Nowhere is there any clause indicating that Great Britain had any right to interest herself in the internal administration of the country, legislative, executive or judicial; nor is there any evidence that Great Britain ever did undertake to interfere in this way. Indeed the



only remedy which Great Britain ever had for maladministration affecting British subjects and those of other Powers, residing in the South African Republic was, as the event proved, the resort to war. If there had been no South African war, we hold that the United States Government would have been obliged to take up Brown's claim with the Government of the Republic and that there would have been no ground for bringing it to the attention of Great Britain. The relation of suzerain did not operate to render Great Britain liable for the acts complained of. Now therefore: The decision of the Tribunal is that the claim of the United States Government be disallowed. The Hawaiian Claims United States-Great Britain United States Great Britain Claims Arbitration Tribunal (1925) (1926), 20 Am. J. Int. L. 381, Nielsen's Report, p. 160. THE TRIBUNAL: NERINCX, FITZPATRICK, POUND: These are claims for wrongful imprisonment, detention in prison, enforced leaving of the country, and other indignities, claimed to have been inflicted upon British subjects by the authorities of the Hawaiian Republic prior to annexation by the United States. We think the cases are governed by the decision of this tribunal in the Case of Robert E. Brown, American and British Claims Arbitration, Claim No. 30. It is contended on behalf of Great Britain that the Brown case is to be distinguished because in that case the South African Republic had come to an end through conquest, while in these cases there was a voluntary cession by the Hawaiian Republic as shown (so it is said) by the recitals of the joint resolution of annexation. We are unable to accept the distinction contended for. In the first place, it assumes a general principle of succession to liability for delict, to which the case of succession of one state to another through conquest would be an exception. We think there is no such principle. It was denied in the Brown Case and has never been contended for to any such extent. The general statements of writers, with respect to succession to obligations, have reference to chances of form of government, where the identity of the legal unit remains, to liability to observe treaties of the extinct state, to contractual liabilities, or at most to quasi contractual liabilities. Even here, there is much controversy. The analogy of universal succession in private law, which is much relied on by those who argue for a large measure of succession to liability for obligations of the extinct state, even if admitted (and the aptness of the analogy is disputed), would make against succession to liability for delicts. Nor do we see any valid reason for distinguishing termination of a legal unit of international law through conquest from termination by any other mode of merging in, or swallowing up by, some other legal unit. In either case the legal unit which did the wrong no longer exists, and legal liability for the wrong has been extinguished with it. We decide that these claims must be rejected. NOTES As to the effect of a change of sovereignty upon private right, see German Settlers in Poland (1923), P.C.I.J. Series B, No. 6, 1 Hudson, W.C.R. 208. The Permanent Court of International Justice said:



"Private rights acquired under existing law do not cease on a change of sovereignty. . . . It can hardly be maintained that, although the law survives, private rights acquired under it have perished. Such a contention is based on no principle and would be contrary to an almost universal opinion and practice. ... The Court is here dealing with private rights under specific provisions of law and of treaty, and it suffices for the purposes of the present opinion to say that even those who contest the existence in international law of a general principle of State succession do not go so far as to maintain that private rights including those acquired from the State as the owner of the property are invalid as against a successor in sovereignty.

ii) Canada a) Effect of conquest by Great Britain and subsequent cession by France in 1763. In St. Catharines Milling and Lumber Co. v. The Queen (1887), 13 S.C.R. 577, Taschereau J. stated at p. 643 et seq.: "There is no doubt of the correctness of the proposition laid down by the Supreme Court of Louisiana, in Breaux v. Johns, 'that on the discovery of the American continent the principle was asserted or acknowledged by all European nations, that discovery followed by actual possession gave title to the soil to the Government by whose subjects, or by whose authority, it was made, not only against other European Governments but against the natives themselves. While the different nations of Europe respected the rights (I would say the claims) of the natives as occupants, they all asserted the ultimate dominion and title to the soil to be in the Sovereign.' 4 La. An. 141. "That such was the case with the French Government in Canada, during its occupancy thereof, is an incontrovertible fact. The King was vested with the ownership of all the ungranted lands in the colony as part of the crown domain, and a royal grant conveyed the full estate and entitled the grantee to possession. The contention, that the royal grants and charters merely asserted a title in the grantees against Europeans or white men, but that they were nothing but blank papers so far as the rights of the natives were concerned, was certainly not then thought of, either in France or in Canada. Neither in the commission or letters patent to the Marquis de la Roche in 1578 and 1598, nor in the charter to the Cent Associes in 1627, nor in the retrocession of the same in 1663, nor in the charter to the West Indies Company in 1664 nor in the retrocession of the same in 1674, by which proprietary Government in Canada came to an end, nor in the six hundred concessions of seigniories extending from the Atlantic to Lake Superior, made by these companies, or by the Kings themselves, nor in any grant of land whatever during the 225 years of the French domination, can be found even an allusion to, or a mention of, the Indian title. "On the contrary, in express terms, de la Roche was authorized to take possession of, and hold as his own property, all lands whatsoever that he might conquer from any one but the allies and confederates of the crown, and, likewise, the charter of the West Indies Company granted them the full ownership of all lands whatsoever, in Canada, which they would conquer, or from which they would drive away the Indians by force of arms. Such was the spirit of all the royal grants of the period. The King granted lands, seigniories, territories, with the understanding that if any of these lands, seigniories, or territories proved to be occupied by aborigines, on the grantees rested the onus to get rid of them, either by chasing them away by force, or by a more conciliatory policy, as they would think



proper. In many instances, no doubt, the grantees, or the King himself, deemed it cheaper or wiser to buy them than to fight them, but that was never construed as a recognition of their right to any legal title whatsoever. The fee and the legal possession were in the King or his grantees. Now when by the treaty of 1763, France ceded to Great Britain all her rights of sovereignty, property and possession over Canada, and its islands, lands, places and coasts, including, as admitted at the argument, the lands now in controversy, it is unquestionable that the full title to the territory ceded became vested in the new sovereign, and that he thereafter owned it in allodium as part of the crown domain, in as full and ample a manner as the King of France had previously owned it. That it should be otherwise for the lands now in dispute, I cannot see on what principle. To exclude from the full operation of the cession by France all the lands then occupied by the Indians, would be to declare that not an inch of land thereby passed to the King of England, as, at that time, the whole of the unpatented lands of Canada were in their possession in as full and ample a manner as the 57,000 square miles of the territory in dispute can be said to be in possession of the 26,000 Indians who roam over it." NOTES The Treaty of Paris, Feb. 10, 1763 (Sess. Paper No. 18, 6-7 Edw. VII, A, 1907), provided in article IV as follows: "IV. His Most Christian Majesty renounces all pretensions which he has heretofore formed or might have formed to Nova Scotia or Acadia in all its parts, and guaranties the whole of it, and with all its dependencies, to the King of Great Britain: Moreover, his Most Christian Majesty cedes and guaranties to his said Britannick Majesty, in full right, Canada, with all its dependencies, as well as the island of Cape Breton, and all the other islands and coasts in the gulph and river of St. Lawrence, and in general, every thing that depends on the said countries, lands, islands, and coasts, with the sovereignty, property, possession, and all rights acquired by treaty, or otherwise, which the Most Christian King and the Crown of France have had till now over the said countries, lands, islands, places, coasts, and their inhabitants, so that the Most Christian King cedes and makes over the whole to the said King, and to the Crown of Great Britain, and that in the most ample manner and form, without restriction, and without any liberty to depart from the said cession and guaranty under any pretence, or to disturb Great Britain in the possessions above mentioned. His Britanmck Majesty, on his side, agrees to grant the liberty of the Catholick religion to the inhabitants of Canada: he will, in consequence, give the most precise and most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the French inhabitants, or others who had been subjects of the Most Christian King in Canada, may retire with all safety and freedom wherever they shall think proper, and may sell their estates, provided it be to the subjects of his Britannick Majesty, and bring away their effects as well as their persons, without being restrained in their emigration, under any pretence whatsoever, except that of debts or of criminal prosecutions: The term limited for this emigration shall be fixed to the space of eighteen months, to be computed from the day of the exchange of the ratification of the present treaty." See also The United States v. Repentigny (1866), 5 Wall 211 (U.S.S.C.) which recognized that the United States succeeded to all the rights to some territory (now in Michigan) that existed in the King of France, under the Treaty of 1783 with Great Britain, at the close of the Revolution. The doctrine of State succession carries a right on the part of the new State to the allegiance of those who were formerly subjects of the displaced power,



unless they elect to leave the country immediately in order to avoid the consequences of such new allegiance. Mere military conquest has no effect on nationality. The Treaty of Utrecht, 1713, provided that upon the cession of Nova Scotia and Newfoundland by France (articles 12 and 13), French subjects should be free to withdraw themselves and their movable property within a year. (Article 14, Kennedy, Statutes, Treaties and Documents of the Canadian Constitution (2nd ed. 1930, p. 6).) It was not yet established that upon the acquisition of new territory by the Crown the inhabitants of that territory automatically acquired British nationality unless it was specifically withheld from them. The Treaty of Paris of 1763 confirmed the Treaty of Utrecht and provided both for the cession to Great Britain of Canada together with all rights over the inhabitants thereof, and for the liberty of the inhabitants to withdraw within eighteen months. (Article 4, Kennedy, op.cit., p. 31.) As to the effect of the independence of the United States of America upon the allegiance of natural-born subjects to the British Crown, Dr. Croke says in The Providence (1810), Stewart 186 (N.S.): ". . . Generally speaking, it is an indisputable maxim of law, that natural allegiance unalienable, and indefeasible. But Sir Michael Foster, one of the first authorities in the British law, justly observes, 'that though this doctrine of allegiance, founded in birth, may be considered as a good general rule, yet it is not universally true. Cases may be put which will be considered as exceptions to it.5 It must be admitted to be one of those exceptions, where the tie between the sovereign and the subject is broken; and the connection dissolved by the concurrent acts of the sovereign, to whom it is due, and of the party himself. For all compacts, and the duties and obligations of allegiance are in the nature of a compact which may be dissolved by the mutual consent of all parties interested. A dissolution of this nature took place between the king of Great Britain, and his subjects in the United States, when their independence was acknowledged by the treaty of peace, in the years 1782 and 1783. By the first article of that treaty, His Majesty acknowledged the thirteen States to be free, sovereign, and independent States, and for himself, his heirs, and successors, relinquished all claims to the government, propriety, and territorial rights of the same. This is a complete renunciation of the rights of allegiance, on the part of His Majesty, and a perfect discharge of the inhabitants of that country, from all their obligations as subjects. This treaty was directly authorized by a preceding act of Parliament, 22 Geo. Ill, c. 46, by which it was enacted, that it should be lawful for His Majesty to conclude a peace with the colonies, any law to the contrary notwithstanding, and was subsequently, though indirectly, confirmed by other acts. There was the sanction therefore of the legislature as well as of the sovereign. On the other hand there was the assent of all the inhabitants of the thirteen colonies, represented and expressed by the ratification of their government, which had been established by their own free choice. From this concurrence of all parties concerned, no act could be more valid, or unexceptionable. The inhabitants of that country, from that time, became aliens to every purpose, and liable to all the disabilities of aliens. As they were no longer bound to any allegiance, so neither were they entitled to any of the privileges of British born subjects. "If any part of the character of a natural born subject is not to be shaken off, it is his allegiance. No private subject can divest himself of it; no foreign prince can discharge him from it. If the act of independence has dissolved this first and most important bond of union, how can it be maintained that other subordinate, and less important connexions should still subsist? "If they are not considered as bound by the tie of allegiance, if Great Britain has no title to their services, it would be absurd to suppose they still retained the privileges of British subjects. If that principle were once admitted, where could it stop? If they might trade, they might own and navigate British vessels, and enjoy the full privileges of other subjects.



" . . . There is, however, an author of very considerable weight, who has given his private opinion upon this subject, conformable to the principles which I have laid down,—Dr. Wooddeson, the late Vinerian professor (Lectures, Vol. 1, p. 382). He says, 'when by treaty, especially if ratified by act of parliament, our sovereign cedes any island or region to another state, the inhabitants of such ceded territory, though born under the allegiance of our King, or being under his protection whilst it appertained to his crown and authority, become effectually aliens, or liable to the disabilities of alienage, in respect to their future concerns with this country. And similar to this seems the condition of the revolted Americans, since the recognition of their independent commonwealth.' I quote this passage, not as affording any express authority to this Court, but in a dearth of judicial decisions, as tending to confirm by the concurring judgment of a man of sense of learning, the opinion which my weaker judgment has enabled me to form upon the subject." In Donegani v. Donegani (1834), 3 Knapp 63, it was held that "the cession [of Canada] to Britain involved a change of sovereignty as a result of which the law of England, and not the law of France, would determine the question who were aliens; . . . " For the nationality of persons born in the United States prior to the Revolution or at the time of the Treaty of Peace in 1783, see Salter v. Hughes (1864), 5 N.S.R. 409 (C.A.) and Montgomery v. Graham (1871), 31 U.C.Q.B. 75 (C.A.). See also I. L. Head, The Stranger in Our Midst: A Sketch of the Legal Status of the Alien in Canada (1964), 2 Can. Y.B. Int. L. 106, at pp. 112, 114. Note that there was a distinction in English public law between a settled colony and one conquered or ceded. The common law did not automatically apply to the latter. The private law of the former sovereign continued in force until the Crown ordered otherwise (Campbell v. Hall (1774), 1 Cowp. 204, 98 E.R. 1045). The question as to the extent to which the law of England applied in Canada arose many times until it was settled by the Quebec Act of 1774 (14 Geo. Ill, c. 82, s. 8. R.S.C. 1952, vol. VI, p. 6133). In general see Castel, The Civil Law System of the Province of Quebec (1962), pp. 5-35, especially at p. 22; also Hodgins (1881), 1 Can. L.T. 1, and Perlman v. Lieut. Col Piche (1918),54S.C. 170 (Que.). As to whether Canada is still bound by treaties entered into by Great Britain see Ex pane O'Dell and Griff en, [1953] O.R. 190 infra p. 931, and O'Connell, State Succession and Problems of Treaty Interpretation (1964), 58 Am. J. Int. L. 41. For cases arising out of the independence of former British or French colonies see, for instance, Re Westerling, [1951] Malayan L.R. 288; Dabrai v. Air India Ltd., [1954] Bombay L.R. 944; Yangtse (London) Ltd. v. Barlas Bros., [1961] Pakistani L. Dec. 573; Tresor Public v. Air Laos et C.A.M.A.T. (1961) Rev. Fr. droit Aerien 276; also Lister, State Succession to Treaties in the Commonwealth (1963), 12 Int. & Comp. L.Q. 475. b) Newfoundland The problems involved in the union of Newfoundland to Canada have had a long history. Delegates from Newfoundland participated in the conference at Quebec in 1864 when the broad outlines of Confederation were laid, but Newfoundland declined to enter union some five years later when the Confederation Party was defeated at the polls. The door, however, always remained open, section 146 of the British North America Act of 1867 providing for the entry at any time of Newfoundland, as well as of Prince Edward Island and British Columbia, on such terms and conditions as might mutually be agreed. Canadian policy throughout the years always was that the first move must come from Newfoundland. Following a financial collapse in 1894, overtures for union were made by Newfoundland, but negotiations broke down over financial terms, and no further formal moves towards union were made till 1947.



In 1934, following another financial collapse, Newfoundland had given up responsible government in return for government by an appointed commission and a financial guarantee by the United Kingdom Government, until such time as the island again became self-supporting, and restoration of responsible government was requested by the people. Although financial recovery set in strongly in the early years of the recent war, consideration of constitutional changes was postponed until the close of hostilities. In 1946, a National Convention was elected to examine the economic and financial position of the island and to make recommendations for submission by referendum to the people regarding possible forms of future government. On March 20, 1947, the Governor of Newfoundland, on behalf of the Newfoundland National Convention, asked the Government of Canada whether it would receive a delegation to ascertain what fair and equitable basis might exist for the federal union of Newfoundland with Canada. The Canadian Government agreed and in June 1947 a delegation from the Convention came to Ottawa. Meetings with a Committee of the Cabinet continued till September. On October 29, 1947, the Prime Minister of Canada sent to the Governor of Newfoundland, for transmission to the National Convention, a statement of terms believed to constitute a fair and equitable basis of union, should the people of Newfoundland desire to enter into Confederation. The statement of terms submitted by the Canadian Government was debated at length in the Newfoundland National Convention and during the campaigns for the two referenda which followed. In the first referendum, held on June 3, 1948, three questions were before the people: continuation of commission of government, confederation, restoration of responsible government. In round numbers, the vote was abount 22,000 for commission of government, about 64,000 for Confederation and about 69,400 for responsible government. In accordance with the conditions announced in advance, no proposed form of government having received a majority, a second referendum was required on the two leading forms. In the second referendum, held on July 22, 1948, Confederation received a majority of about 7,000 votes and a majority of eighteen of the twenty-five electoral districts. In a statement issued on July 30, the Prime Minister of Canada said the result was "clear beyond all possibility of misunderstanding" and that the Government would be glad to receive with the least possible delay authorized representatives of Newfoundland "to negotiate the terms of union" on the basis of his letter of October 29, 1947 to the Governor of Newfoundland, and the document transmitted with it. A delegation was shortly thereafter appointed by the Governor of Newfoundland, and arrived in Ottawa on October 6, 1948, where negotiations were begun with a committee of the Cabinet. On December 11, 1948, A Memorandum of Agreement was entered into between Canada and Newfoundland. The signature took place in the Senate Chamber in Ottawa. The terms of union were approved by the Canadian Parliament and the Newfoundland Commission of Government, and confirmed by the United Kingdom Parliament. Formal Union took place on March 31, 1949. NOTES See (1949), 1 External Affairs, pp. 3-8, and Terms of Union of Newfoundland with Canada, B.N.A. Act 1949, 12-13 Geo. VI, c. 22, Schedule R.S.C., 1952, vol. VI, p. 6399 et seq. Also Report and Documents Relating to the



Negotiations for the Union of Newfoundland with Canada (1949), Conference Series 1948, No. 2, Dept. of External Affairs, Ottawa. Memorandum of Agreement entered into on the Eleventh Day of December, 1948, between Canada and Newfoundland TERMS OF UNION UNION 1. On, from, and after the coming into force of these Terms (hereinafter referred to as the date of Union), Newfoundland shall form part of Canada and shall be a province thereof to be called and known as the Province of Newfoundland. 2. The Province of Newfoundland shall comprise the same territory as at the date of Union, that is to say, the island of Newfoundland and the islands adjacent thereto, the Coast of Labrador as delimited in the report delivered by the Judicial Committee of His Majesty's Privy Council on the first day of March, 1927, and approved by His Majesty in His Privy Council on the twenty-second day of March, 1927, and the islands adjacent to the said Coast of Labrador. [See infra p. 290.] CONTINUATION OF LAWS General 18. (1) Subject to these Terms, all laws in force in Newfoundland at or immediately prior to the date of Union shall continue therein as if the Union had not been made, subject nevertheless to be repealed, abolished, or altered by the Parliament of Canada or by the Legislature of the Province of Newfoundland according to the authority of the Parliament or of the Legislature under the British North America Acts, 1867 to 1946, and all orders, rules, and regulations made under any such laws shall likewise continue, subject to be revoked or amended by the body or person that made such orders, rules, or regulations or the body or person that has power to make such orders, rules, or regulations after the date of Union, according to their respective authority under the British North America Acts, 1867 to 1946. (2) Statutes of the Parliament of Canada in force at the date of Union, or any part thereof, shall come into force in the Province of Newfoundland on a day or days to be fixed by Act of the Parliament of Canada or by proclamation of the Governor-General in Council issued from time to time, and any such proclamation may provide for the repeal of any of the laws of Newfoundland that (a) are of general application; (b) relate to the same subject-matter as the statute or part thereof so proclaimed; and (c) could be repealed by the Parliament of Canada under paragraph one of this Term. (3) Notwithstanding anything in these Terms, the Parliament of Canada may with the consent of the Legislature of the Province of Newfoundland repeal any law in force in Newfoundland at the date of Union. (4) Except as otherwise provided by these Terms, all courts of civil and criminal jurisdiction and all legal commissions, powers, authorities, and functions, and all officers and functionaries, judicial, administrative, and ministerial, existing in Newfoundland at or immediately prior to the date of Union, shall continue in the Province of Newfoundland as if the Union had not been made, until altered, abolished, revoked, terminated, or dismissed by the appropriate authority under the British North America Acts, 1867 to 1946. FINANCIAL TERMS Debt 23. Canada will assume and provide for the servicing and retirement of the stock issued or to be issued on the security of Newfoundland pursuant to The



Loan Act, 1933, of Newfoundland and will take over the Sinking Fund established under that Act. Financial Surplus 24. (2) Newfoundland will retain its financial surplus subject to [certain enumerated conditions]. . . . Loans 25. (1) The Province of Newfoundland will retain its interest in, and any securities arising from or attaching to, any loans or advances of public funds made by the Government of Newfoundland prior to the date of iJnion. The Terms of Union extended the application of the British North America Acts, 1867 to 1946, to the Province of Newfoundland with certain qualifications "in the same way and to the like extent as they apply to the provinces heretofore comprised in Canada, as if the Province of Newfoundland had been one of the provinces originally united . . ." (section 3). It was also provided that at the date of Union, Canada should take over certain public services therein enumerated, maintain a freight and passenger steamship service therein described, and acquire certain public works and property therein listed when the service concerned was taken over. Such public works and property of Newfoundland not transferred to Canada were to remain the property of the Province of Newfoundland (sections 31, 32, 33, 35). It was further stipulated in section 37 of this agreement that "All lands, mines, minerals, and royalties belonging to Newfoundland at the date of Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the Province of Newfoundland. ..." Section 39 provided that employees of the Government of Newfoundland in the services taken over by Canada (as provided for in section 31) would be "offered employment in these services or in similar Canadian services under the terms and conditions from time to time governing employment in those services, but without reduction in salary or loss of pension rights acquired by reason of service in Newfoundland." While it was further provided that Canada should pay the pensions for such employees so that the employees would not be prejudiced, it was arranged that Newfoundland would reimburse or contribute to Canada for pensions for the service of those employees with the Government of Newfoundland prior to the date of Union, provided that the burden of such payments or contributions in respect of the service in Newfoundland would not be increased by reason of the transfer. Further, by the terms of the agreement, pensions of employees of the Government of Newfoundland who were retired on pension before the service concerned was taken over by Canada were to remain the responsibility of the Province of Newfoundland. Section 43 of the Terms of Union stated that "suitable provision will be made for the extension of Canadian citizenship laws to the Province of Newfoundland." Such provision was made by the Statute Law (Newfoundland) Act 1949 (S.C. 1949, c. 6) which added s. 39 to the Canadian Citizenship Act, R.S.C., 1952, c. 33, as amended. Neither in The British North America Act of 1949, 12 & 13 Geo. VI, chap. 22, nor in the agreement is any mention made of the continuation of treaties binding on Newfoundland before its unification with Canada. "Extensive research was undertaken in the field of treaty law in order to determine Canada's position, after union, in relation to international agreements which were binding upon Newfoundland before April 1, 1949. A survey was made of some two hundred international agreements which were binding upon Newfoundland prior to Union, in order to determine which ones would apply to Canada and which ones would terminate at the time of Union. "This question was considered in consultation with the United Kingdom authorities and a procedure was agreed upon for advising the foreign govern-



ments concerned of the changed status of some of those agreements after Union. "Special consideration was given to the 1941 Agreement between the United Kingdom and the United States of America relating to the military bases leased to the United States of America, from the standpoint of its application to Newfoundland." (1949 Report of the Department of External Affairs, pp. 57-58.) Actually, in treaty matters the Canadian Government has acted in a manner similar to that of most annexing States: it has applied the principle of adjusting the scope of pre-existing treaties to accord with new conditions.

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PART III: State Jurisdiction

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V. Forms of State Jurisdiction: Territorial and Personal It is usually stated that territorial jurisdiction is unlimited within the boundaries of a sovereign State, unless a i^le of international law to the contrary can be established in any particular case. Conversely, outside its territory a State has no right to exercise jurisdiction in the absence of permissive rules of international custom or treaty law. This does not prevent States from extending the application of their laws and the jurisdiction of their courts to persons, property, and acts outside their territory. It merely means that a State cannot exercise actual jurisdiction in such cases until and unless persons or things affected by such legislation become amenable to its territorial jurisdiction. Territorial and personal State jurisdiction may be exclusive, concurrent, or limited. Thus, a State claims exclusive jurisdiction within its own territory, and concurrent jurisdiction with other States over pirates on the high seas or over its ships in foreign ports. Exclusive jurisdiction may also be restricted by international treaties. The exclusive personal jurisdiction of a State is exercised over its nationals within its own territory. When such nationals are abroad and within the territory of another State, the jurisdiction of the home State is concurrent with the jurisdiction of the territorial State. Lord MacMillan in Compania Naviera Vascongado v. 55 Cristina, [1938] A.C. 485, stated at pp. 496-497: It is an essential attribute of the sovereignty of this realm, as of all sovereign independent States, that it should possess jurisdiction over all persons and things within its territorial limits and in all causes civil and criminal arising within these limits.

In The Dunbar Dredging Co. v. The Ship Milwaukee (1907), 11 Ex. C.R. 179, at p. 189, the Court said: It has long been a doctrine of International law that the territory and jurisdiction of an independent sovereignty are co-extensive. And it is a constitutional rule that to its courts and judges certain of the juridicial powers of the sovereignty are delegated, to be exercised within the territorial boundaries of such sovereignty. And it has long been a doctrine of British law that when the jurisdiction of its courts of justice, and of their juridicial authority have been once established by Legislative Acts within such territorial boundaries, or within certain described portions of them, such jurisdiction and authority cannot be suspended, or lessened, or abrogated by the Crown, (unless so authorised by Statute) but only by similar legislative acts of the Parliament, or other legislative authority, by which such jurisdiction and authority had been established.

The Steamship Lotus Permanent Court of International Justice, 1927 Series A, No. 10; 2 Hudson, W.C.R., p. 23 By a special agreement of October 12, 1926, the governments of France and Turkey submitted to the Permanent Court of International Justice the following questions: (1) Has Turkey, contrary to Article 15 of the Convention of Lausanne of July 24th, 1923, respecting conditions of residence and business and



jurisdiction, acted in conflict with the principles of international law—and if so, what principles—by instituting following the collision which occurred on August 2nd, 1926, on the high seas between the French steamer Lotus and the Turkish steamer Boz-Kourt and upon the arrival of the French steamer at Constantinople—as well as against the captain of the Turkish steamship—joint criminal proceedings in pursuance of Turkish law against M. Demons, officer of the watch on board the Lotus at the time of the collision, in consequence of the loss of the Boz-Kourt having involved the death of eight Turkish sailors and passengers? (2) Should the reply be in the affirmative, what pecuniary reparation is due to M. Demons, provided, according to the principles of international law, reparation should be made in similar cases? THE COURT: . . . On August 2, 1926, just before midnight, a collision occurred between the French mail steamer Lotus, proceeding to Constantinople, and the Turkish collier Boz-Kourt, between five and six nautical miles to the north of Cape Sign (Mitylene). The Boz-Kourt, which was cut in two, sank, and eight Turkish nationals who were on board perished. After having done everything possible to succour the shipwrecked persons, of whom ten were able to be saved, the Lotus continued on its course to Constantinople, where it arrived on August 3rd. At the time of the collision, the officer of the watch on board the Lotus was Monsieur Demons, a French citizen, lieutenant in the merchant service and first officer of the ship, whilst the movements of the Boz-Kourt were directed by its captain, Hassan Bey, who was one of those saved from the wreck. As early as August 3rd the Turkish police proceeded to hold an enquiry into the collision on board the Lotus; and on the following day, August 4th, the captain of the Lotus handed in his master's report at the French Consulate-General, transmitting a copy to the harbour master. On August 5th, Lieutenant Demons was requested by the Turkish authorities to go ashore to give evidence. The examination, the length of which incidentally resulted in delaying the departure of the Lotus, led to the placing under arrest of Lieutenant Demons—without previous notice being given to the French Consul General—and Hassan Bey, amongst others. This arrest, which has been characterized by the Turkish agent as arrest pending trial (arrestation preventive), was effected in order to ensure that the criminal prosecution instituted against the two officers, on a charge of manslaughter, by the Public Prosecutor of Stamboul, on the complaint of the families of the victims of the collision, should follow its normal course. The case was first heard by the Criminal Court of Stamboul on August 28th. On that occasion. Lieutenant Demons submitted that the Turkish Courts had no jurisdiction; the Court, however, overruled his objection. When the proceedings were resumed on September llth, Lieutenant Demons demanded his release on bail: this request was complied with on September 13th, the bail being fixed at 6,000 Turkish pounds. On September 15th, the Criminal Court delivered its judgment, the terms of which have not been communicated to the Court by the Parties. It is, however, common ground, that it sentenced Lieutenant Demons to eighty days' imprisonment and a fine of twenty-two pounds, Hassan Bey being sentenced to a slightly more severe penalty.... 5. The prosecution was instituted in pursuance of Turkish legislation. The special agreement does not indicate what clause or clauses of that



legislation apply. No document has been submitted to the Court indicating on what article of the Turkish Penal Code the prosecution was based; the French Government however declares that the Criminal Court claimed jurisdiction under Article 6 of the Turkish Penal Code, and far from denying this statement, Turkey, in the submissions of her countercase, contends that that article is in conformity with the principles of international law. It does not appear from the proceedings whether the prosecution was instituted solely on the basis of that article. Article 6 of the Turkish Penal Code, Law No. 765 of March 1st, 1926 (Official Gazette No. 320 of March 13th, 1926), runs as follows: [Translation:] Any foreigner who, apart from the cases contemplated by Article 4, commits an offence abroad to the prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty involving loss of freedom for a minimum period of not less than one year, shall be punished in accordance with the Turkish Penal Code provided that he is arrested in Turkey. The penalty shall however be reduced by one third and instead of the death penalty, twenty years of penal servitude shall be awarded. Nevertheless, in such cases, the prosecution will only be instituted at the request of the Minister of Justice or on the complaint of the injured Party. If the offence committed injures another foreigner, the guilty person shall be punished at the request of the Minister of Justice, in accordance with the provisions set out in the first paragraph of this article, provided however that: (1) the article in question is one for which Turkish law prescribes a penalty involving loss of freedom for a minimum period of three years; (2) there is no extradition treaty or that extradition has not been accepted either by the government of the locality where the guilty person has committed the offence or by the government of his own country.

Even if the Court must hold that the Turkish authorities had seen fit to base the prosecution of Lieutenant Demons upon the above-mentioned Article 6, the question submitted to the Court is not whether that article is compatible with the principles of international law; it is more general. The Court is asked to state whether or not the principles of international law prevent Turkey from instituting criminal proceedings against Lieutenant Demons under Turkish law. ... It is Article 15 of the Convention of Lausanne of July 24th, 1923, respecting conditions of residence and business and jurisdiction, which refers the contracting Parties to the principles of international law as regards the delimitation of their respective jurisdiction. This clause is as follows: Subject to the provisions of Article 16, all questions of jurisdiction shall, as between Turkey and the other contracting Powers, be decided in accordance with the principles of international law.

III. The Court, having to consider whether there are any rules of international law which may have been violated by the prosecution in pursuance of Turkish law of Lieutenant Demons, is confronted in the first place by a question of principle which, in the written and oral arguments of the two Parties, has proved to be a fundamental one. The French Government contends that the Turkish Courts, in order to have jurisdiction, should be able to point to some title to jurisdiction recognized by international law in favour of Turkey. On the other hand, the Turkish Government takes the view that Article 15 allows Turkey jurisdiction whenever such jurisdiction



does not come into conflict with a principle of international law. . . . International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or? by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. Now the first and foremost restriction imposed by international law upon a Sta£e is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their coiirts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion whiclx is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.... This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States; it is in order to remedy the difficulties resulting from such variety that efforts have been made for many years past, both in Europe and America, to prepare conventions the effect of which would be precisely to limit the discretion at present left to States in this respect by international law, thus making good the existing lacunae in respect of jurisdiction or removing the conflicting jurisdictions arising from the diversity of the principles adopted by the various States. In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty. It follows from the foregoing that the contention of the French Government to the effect that Turkey must in each case be able to cite a rule of international law authorizing her to exercise jurisdiction, is opposed to the generally accepted international law to which Article 15 of the Convention of Lausanne refers. Having regard to the terms of Article 15 and to the construction which the Court has just placed upon it, this contention would apply in regard to civil as well as to criminal cases, and would be applicable on conditions of absolute reciprocity as between Turkey and the other contracting Parties; in practice, it would therefore in many cases result in paralyzing the action of the courts, owing to the impossibility of citing a universally accepted rule on which to support the exercise of their jurisdiction. Nevertheless, it has to be seen whether the foregoing considerations really apply as regards criminal jurisdiction, or whether this jurisdiction is governed by a different principle: this might be the outcome of the close



connection which for a long time existed between the. conception of supreme criminal jurisdiction and that of a State, and also by-the especial importance of criminal jurisdiction from the point of view of the individual. Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them^ afld they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty. This situation may be considered from two different standpoints corresponding to the points of view respectively taken up by the Parties. According to one of these standpoints, the principle of freedom, hi virtue of which each State may regulate its legislation at its discretion, provided that in so doing it does not come in conflict with a restriction imposed by international law, would also apply as regarding law governing the scope of jurisdiction in criminal cases. According to the other standpoint, the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise expressly provided, would, ipso facto, prevent States from extending the criminal jurisdiction of their courts beyond their frontiers; the exceptions in question, which include for instance extraterritorial jurisdiction over nationals and over crimes directed against public safety, would therefore rest on special permissive rules forming part of international law. Adopting, for the purposes of the argument, the standpoint of the latter of these two systems, it must be recognized that, in the absence of a treaty provision, its correctness depends upon whether there is a custom having the force of law establishing it. The same is true as regards the applicability of this system—assuming it to have been recognized as sound —4n the particular case. It follows that, even from this point of view, before ascertaining whether there may be a rule of international law expressly allowing Turkey to prosecute a foreigner for an offence committed by him outside Turkey, it is necessary to begin by establishing both that the system is well-founded and that it is applicable in the particular case. Now, in order to establish the first of these points, one must, as has just been seen, prove the existence of a principle of mternational law restricting the discretion of States as regards criminal legislation. Consequently, whichever of the two systems described above be adopted, the same result will be arrived at in this particular case: the necessity of ascertaining whether or not under international law there is a principle which would have prohibited Turkey, in the circumstances of the case before the Court, from prosecuting Lieutenant Demons. And moreover, on either hypothesis, this must be ascertained by examining precedents offering a close analogy to the case under consideration; for it is only from precedents of this nature that the existence of a general principle applicable to the particular case may appear. For if it were found, for example, that, according to the practice of States, the jurisdiction of the State whose flag was flown was not established by international law as exclusive with regard to collision cases on the high seas, it would not be necessary to ascertain whether there were a more'general restriction; since, as regards that restriction—supposing that it existed—the fact that it had been established that there was no prohibition in respect of collision on the high seas would be tantamount to a special permissive rule.



The Court therefore must, in any event, ascertain whether or not there exists a rule of international law limiting the freedom of States to extend the criminal jurisdiction of their courts to a situation uniting the circumstances of the present case. IV. The Court will now proceed to ascertain whether general international law, to which Article 15 of the Convention of Lausanne refers, contains a rule prohibiting Turkey from prosecuting Lieutenant Demons. For this purpose, it will in the first place examine the value of the arguments advanced by the French Government, without however omitting to take into account other possible aspects of the problem, which might show the existence of a restrictive rule applicable in this case. The arguments advanced by the French Government, other than those considered above, are, in substance, the three following: (1) International law does not allow a State to take proceedings with regard to offences committed by foreigners abroad, simply by reason of the nationality of the victim; and such is the situation in the present ease because the offence must be regarded as having been committed on board the French vessel. (2) International law recognizes the exclusive jurisdiction of the State whose flag is flown as regards everything which occurs on board a ship on the high seas. (3) Lastly, this principle is especially applicable in a collision case. As regards the first argument, the Court feels obliged in the first place to recall that its examination is strictly confined to the specific situation in the present case, for it is only in regard to this situation that its decision is asked for. As has already been observed, the characteristic features of the situation of fact are as follows: there has been a collision on the high seas between two vessels flying different flags, on one of which was one of the persons alleged to be guilty of the offence, whilst the victims were on board the other. This being so, the Court does not think it necessary to consider the contention that a State cannot punish offences committed abroad by a foreigner simply by reason of the nationality of the victim. For this contention only relates to the case where the nationality of the victim is the only criterion on which the criminal jurisdiction of the State is based. Even if that argument were correct generally speaking—and in regard to this the Court reserves its opinion—it could only be used in the present case if international law forbade Turkey to take into consideration the fact that the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners. But no such rule of international law exists. No argument has come to the knowledge of the Court from which it could be deduced that States recognize themselves to be under an obligation towards each other only to have regard to the place where the author of the offence happens to be at the time of the offence. On the contrary, it is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place



there. French courts have, in regard to a variety of situations, given decisions sanctioning this way of interpreting the territorial principle. Again, the Court does not know of any cases in which governments have protested against the fact that the criminal law of some country contained a rule to this effect or that the courts of a country construed their criminal law in this sense. Consequently, once it is admitted that the effects of the offence were produced on the Turkish vessel, it becomes impossible to hold that there is a rule of international law which prohibits Turkey from prosecuting Lieutenant Demons because of the fact that the author of the offence was on board the French ship. . . . Nevertheless, even if the Court had to consider whether Article 6 of the Turkish Penal Code was compatible with international law, and if it held that the nationality of the victim did not in all circumstances constitute a sufficient basis for the exercise of criminal jurisdiction by the State of which the victim was a national, the Court would arrive at the same conclusion for the reasons just set out. For even were Article 6 to be held incompatible with the principles of international law, since the prosecution might have been based on another provision of Turkish law which would not have been contrary to any principle of international law, it follows that it would be impossible to deduce from the mere fact that Article 6 was not in conformity with those principles, that the prosecution itself was contrary to them.... The second argument put forward by the French Government is the principle that the State whose flag is flown has exclusive jurisdiction over everything which occurs on board a merchant ship on the high seas. It is certainly true that—apart from certain special cases which are defined by international law—vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them. Thus, if a war vessel, happening to be at the spot where a collision occurs between a vessel flying its flag and a foreign vessel, were to send on board the latter an officer to make investigations or to take evidence such an act would undoubtedly be contrary to international law. But it by no means follows that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas. A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it, and no other State may do so. All that can be said is that by virtue of the principle of the freedom of the seas, a ship is placed in the same position as national territory; but there is nothing to support the claim according to which the rights of the State under whose flag the vessel sails may go farther than the rights which it exercises within its territory properly so called. It follows that what occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no riile of international law prohibiting the State to which the ship on which the effects of the offence have taken place




belongs, from -regarding ethe offence as having been committed in its territory and prosecuting, accordingly, the delinquent. This conclusion could o#ly be overcome if it were shown that there was a rule of customary international law which, going further than the principle stated above, established the exclusive jurisdiction of the State whose flag was flown.... • , In the Court's-opinion, the existence of such a rule has not been conclusively proved. . . . The Court therefore has arrived at the conclusion that the second argument put forward by the French Government does not, any more than the first, establish the existence of a rule of international law prohibiting Turkey from prosecuting Lieutenant Demons. It only remains to examine the third argument advanced by the French Government and to ascertain whether a rule specially applying to collision cases has grown up, according to which criminal proceedings regarding such cases come exclusively within the jurisdiction of the State whose flag is flown.... So far as the Court is aware there are no decisions of international tribunals in this matter; but some decisions of municipal courts have been cited. Without pausing to consider the value to be attributed to the judgments of municipal courts in connection with the establishment of the existence of a rule of international law, it will suffice to observe that the decisions quoted sometimes support one view and sometimes the other. . . . . . . It will suffice to observe that, as municipal jurisprudence is thus divided, it is hardly possible to see in it an indication of the existence of the restrictive rule of international law which alone could serve as a basis for the contention of the French Government. . . . The conclusion at which the Court has therefore arrived is that there is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown. This conclusion moreover is easily explained if the manner in which the collision brings the jurisdiction of two different countries into play be considered. The offence for which .Lieutenant Demons appears to have been prosecuted was an act—of negligence or imprudence—-having its origin on board the Lotus, whilst its effects made themselves felt on board the BozKourt. These two elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent. Neither the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two States. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction. . ,. For these reasons, the Court, having heard both Parties, gives, by the President's casting vote^-the votes being equally divided—judgment to the effect: ,(1) That, following the collision which occurred on August 2nd, 1926, on the high seas between the French steamship Lotus and the Turkish steamship Boz-Kourt, and upon the arrival of the French ship at Stamboul, and in consequence of the loss of the Boz-Kourthaving involved the death of dght Turkish ^nationals, Turkey, by instituting'criminal proceedings in



pursuance of Turkish law against Lieutenant Demons, officer of the watch on board the Lotus at the time of the collision, has not acted in conflict with the principles of international law, contrary to Article 15 of the Convention of Lausanne of July 24th, 1923, respecting conditions of residence and business and jurisdiction;... (2) That, consequently, there is no occasion to give judgment on the question of the pecuniary reparation which might have been due to Lieutenant Demons if Turkey, by prosecuting him as above stated, had acted in a manner contrary to the principles of international law. . . . NOTES In general, see Jessup (1935), 29 Am. J. Int. L. 495. For a bibliography of this case see 2 Hudson, W.C.R., p. 20. See also The Scotia (1871), 14 Wall 170 (U.S.) per Strong J.; Mortensenv. Peters (1906), 14 Scot L.T. 227; and Chung Chi Cheung v. The King, [1939] A.C. 160 per Lord Atkin;

VI. The Territory of States A) ACQUISITION OF TERRITORY There are five generally recognized modes of acquiring territorial sovereignty: occupation, accretion, prescription, annexation, and cession. The Island of Palmas Permanent Court of Arbitration (1928) 2 U.N.R.I.A.A. 831 HUBER, ARBITRATOR: The subject of the dispute is the sovereignty over the Island of Palmas (or Miangas). The Island in question is indicated with precision in the preamble to the Special Agreement, its latitude and longitude being specified. . . . It results from the evidence produced by either side that Palmas (or Miangas) is a single, isolated island, not one of several islands clustered together. It lies about half way between Cape San Augustin (Mindanao, Philippine Islands) and the most northerly island of the Nanusa (Nanoesa) group (Netherlands East Indies). The origin of the dispute is to be found in the visit paid to the Island of Palmas (or Miangas) on January 21st, 1906, by General Leonard Wood, who was then Governor of the Province of Moro. This visit led to the statement that the Island of Palmas (or Miangas), undoubtedly included in the "archipelago known as the Philippine Islands," as delimited by Article III of the Treaty of Peace between the United States and Spain, dated December 10th, 1898 (hereinafter also called "Treaty of Paris"), and ceded in virtue of the said article to the United States, was considered by the Netherlands as forming part of the territory of their possessions in the East Indies. There followed a diplomatic correspondence, beginning on March 31st, 1906, and leading up to the conclusion of the Special Agreement of January 23rd, 1925 In the first place the Arbitrator deems it necessary to make some general remarks on sovereignty in its relation to territory. . . . The preamble refers to "sovereignty over the Island of Palmas (or Miangas)," and under Article I, paragraph 2, the Arbitrator's task is to "determine whether the Island of Palmas (or Miangas) in its entirety forms a part of Netherlands territory or of territory belonging to the United States of America." It appears to follow that sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular State. Sovereignty in relation to territory is in the present award called "territorial sovereignty." Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. The special cases of the composite State, of collective sovereignty, etc., do not fall to be considered here and do not, for that matter, throw any doubt



upon the principle which has just been enunciated. Under this reservation it may be stated that territorial sovereignty belongs always to one, or in exceptional circumstances to several States, to the exclusion of all others. The fact that the functions of a State can be performed by any State within a given zone is, on the other hand, precisely the characteristic feature of the legal situation pertaining in those parts of the globe which, like the high seas or lands without a master, cannot or do not yet form the territory of a State. Territorial sovereignty is, in general, a situation recognized and delimited in space, either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbours, such as frontier conventions, or by acts of recognition of States within fixed boundaries. If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the States claiming a sovereignty possesses a title—cession, conquest, occupation, etc.—superior to that which the other State might possibly bring forward against it. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment; it must also be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical. This demonstration consists in the actual display of State activities, such as belongs only to the territorial sovereign. Titles of acquisition of territorial sovereignty in present-day international law are either based on an act of effective apprehension, such as occupation or conquest, or, like cession, presuppose that the ceding and the cessionary Powers or at least one of them, have the faculty of effectively disposing of the ceded territory. In the same way natural accretion can only be conceived of as an accretion to a portion of territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity. It seems therefore natural that an element which is essential for the constitution of sovereignty should not be lacking in its continuation. So true is this, that practice, as well as doctrine, recognizes— though under different legal formulae and with certain differences as to the conditions required—that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as a title. The growing insistence with which international law, ever since the middle of the 18th century, has demanded that the occupation shall be effective would be inconceivable, if effectiveness were required only for the act of acquisition and not equally for the maintenance of the right. If the effectiveness has above all been insisted on in regard to occupation, this is because the question rarely arises in connection with territories in which there is already an established order of things. Just as before the rise of international law, boundaries of lands were necessarily determined by the fact that the power of a State was exercised within them, so too, under the reign of international law, the fact of peaceful and continuous display is still one of the most important considerations in establishing boundaries between States. Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in warf



together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for its serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian. Although municipal law, thanks to its complete judicial system, is able to recognize abstract rights of property as existing apart from any material display of them, it has none the less limited their effect by the principles of prescription and the protection of possession. International law, the structure of which is not based on any super-State organization, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations. The principle that continuous and peaceful display of the functions of State within a given region is a constituent element of territorial sovereignty is not only based on the conditions of the formation of independent States and their boundaries (as shown by the experience of political history) as well as on an international jurisprudence and doctrine widely accepted; this principle has further been recognized in more than one federal State, where a jurisdiction is established in order to apply, as need arises, rules of international law to the interstate relations of the States members. . . . Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas. It is true that neighbouring States may by convention fix limits to their own sovereignty, even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested, and in this way each may prevent the other from any penetration of its territory. The delimitation of Hinterland may also be mentioned in this connection. If, however, no conventional line of sufficient topographical precision exists or if there are gaps in the frontiers otherwise established, or if a conventional line leaves room for doubt, or if, as e.g. in the case of an island situated in the high seas, the question arises whether a title is valid erga omnes, the actual continuous and peaceful display of State functions is in case of dispute the sound and natural criterion of territorial sovereignty. . . . The title alleged by the United States of America as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region indicated in Article III of the said Treaty and therefore also those concerning the Island of Palmas (or Miangas). It is evident that Spain could not transfer more rights than she herself possessed. ... Whilst there existed a divergence of views as to the extension of the cession to certain Spanish islands outside the treaty limits, it would seem that the cessionary Power never envisaged that the cession, in spite of the



sweeping terms of Article III, should comprise territories on which Spain had not a valid title, though falling within the limits traced by the Treaty. It is evident that whatever may be the right construction of a treaty, it cannot be interpreted as disposing of the rights of independent third Powers. One observation, however, is to be made. Article III of the Treaty of Paris, which is drafted differently from the preceding Article concerning Porto Rico, is so worded that it seems as though the Philippine Archipelago, within the limits fixed by that Article, was at the moment of cession under Spanish sovereignty. As already stated the Island of Palmas lies within the lines traced by the Treaty. Article III may therefore be considered as an affirmation of sovereignty on the part of Spain as regards the Island of Palmas (or Miangas), and this right or claim of right would have been ceded to the United States.... It is recognized that the United States communicated, on February 3rd, 1899, the Treaty of Paris to the Netherlands, and that no reservations were made by the latter in respect to the delimitation of the Philippines in Article III. The question whether the silence of a third Power, in regard to a treaty notified to it, can exercise any influence on the rights of this Power, or on those of the Powers signatories of the treaty, is a question the answer to which may depend on the nature of such rights. Whilst it is conceivable that a conventional delimitation duly notified to third Powers and left without contestation on their part may have some bearing on an inchoate title not supported by any actual display of sovereignty, it would be entirely contrary to the principles laid down above as to territorial sovereignty to suppose that such sovereignty could be affected by the mere silence of the territorial sovereign as regards a treaty which has been notified to him and which seems to dispose of a part of his territory. The essential point is therefore whether the Island of Palmas (or Miangas) at the moment of the conclusion and coming into force of the Treaty of Paris formed a part of the Spanish or Netherlands territory. The United States declares that Palmas (or Miangas) was Spanish territory and denies the existence of Dutch sovereignty; the Netherlands maintain the existence of their sovereignty and deny that of Spain. Only if the examination of the arguments of both Parties should lead to the conclusion that the Island of Palmas (or Miangas) was at the critical moment neither Spanish nor Netherlands territory, would the question arise whether—and, if so, how—the conclusion of the Treaty of Paris and its notification to the Netherlands might have interfered with the rights which the Netherlands or the United States of America may claim over the island in dispute. As pointed out above, the United States bases its claim, as successor of Spain, in the first place on discovery. In this connection a distinction must be made between the discovery of the Island of Palmas (or Miangas) as such, or as a part of the Philippines, which, beyond doubt, were discovered and even occupied and colonized by the Spaniards. This latter point, however, will be considered with the argument relating to contiguity; the problem of discovery is considered only in relation to the island itself which forms the subject of the dispute. . . . For the purpose of the present affair it may be admitted that the original title derived from discovery belonged to Spain; for the relations between Spain and Portugal in the Celebes Sea during the first three quarters of the 16th century may be disregarded. . . . The fact that the island was originally called, not, as customarily, by a native name, but by a name borrowed from a European language, and



referring to the vegetation, serves perhaps to show that no landing was made or that the island was uninhabited at the time of discovery. Indeed, the reports on record which concern the discovery of the Island of Palmas state only that an island was "seen," which island, according to the geographical data, is probably identical with that in dispute. No mention is made of landing or contact with the natives. And in any case no signs of taking possession or of administration by Spain have been shown or even alleged to exist until the very recent date to which the reports of Captain Malone and M. Alvarez, of 1919, contained in the United States Memorandum, relate. It is admitted by both sides that international law underwent profound modifications between the end of the Middle-Ages and the end of the 19th century, as regards the rights of discovery and acquisition of uninhabited regions or regions inhabited by savages or semi-civilized peoples. Both Parties are also agreed that a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled. The effect of discovery by Spain is therefore to be determined by the rules of international law in force in the first half of the 16th century—or (to take the earliest date) in the first quarter of it, i.e. at the time when the Portuguese or Spaniards made their appearance in the Sea of Celebes. If the view most favourable to the American arguments is adopted— with every reservation as to the soundness of such view—that is to say, if we consider as positive law at the period in question the rule that discovery as such, i.e. the mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an "inchoate title," a jus ad rem, to be completed eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at the critical date, i.e. the moment of conclusion and coming into force of the Treaty of Paris. As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law. International law in the 19th century, having regard to the fact that most parts of the globe were under the sovereignty of States members of the community of nations, and that territories without a master had become relatively few, took account of a tendency already existing and especially developed since the middle of the 18th century, and laid down the principle that occupation, to constitute a claim to territorial sovereignty, must be effective, that is, offer certain guarantees to other States and their nationals. It seems therefore incompatible with this rule of positive law that there should be regions which are neither under the effective sovereignty of a State, nor without a master, but which are reserved for the exclusive influence of one State, in virtue solely of a title of acquisition which is no longer recognized by existing law, even if such a title ever conferred territorial sovereignty. For these reasons, discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of Palmas (or Miangas); and in so far as there is no sovereignty, the question of an abandonment properly speaking of sover-



eignty by one State in order that the sovereignty of another may take its place did not arrive. If on the other hand the view is adopted that discovery does not create a definitive title of sovereignty, but only an "inchoate" title, such a title exists, it is true, without external manifestation. However, according to the view that has prevailed at any rate since the 19th century, an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered. This principle must be applied in the present case, for the reasons given above in regard to the rules determining which of successive legal systems is to be applied (the so-called intertemporal law). Now, no act of occupation nor, except as to a recent period, any exercise of sovereignty at Palmas by Spain has been alleged. But even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as included in the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of authority by another State; for such display may prevail even over a prior, definitive title put forward by another State. This point will be considered, when the Netherlands argument has been examined and the allegations of either Party as to the display of their authority can be compared. In the second place the United States claim sovereignty over the Island of Palmas on the ground of recognition by Treaty. The Treaty of Peace of January 30th, 1648, called hereafter the "Treaty of Munster," which established a state of peace between Spain and the States General of the United Provinces of the Netherlands, in Article V, deals with territorial relations between the two Powers as regards the East and West Indies (Article VI concerns solely the latter). . . . This Article, Article V, prescribes no frontiers and appoints no definite regions as belonging to one Power or the other. On the other hand, it establishes as a criterion the principle of possession. However liberal be the interpretation given, for the period in question, to the notions of "tenir" (hold) and "posseder" (possess), it is hardly possible to comprise within these terms the right arising out of mere discovery; i.e. out of the fact that the island had been sighted. If title arising from discovery, well-known and already a matter of controversy at the period in question, were meant to be recognized by the treaty, it would probably have been mentioned in express terms. . . . A title based on mere discovery cannot apply to the situation considered in Article V as already established. Since the Treaty of Munster does not divide up the territories by means of a geographical distribution, and since it indirectly refuses to recognize title based on discovery as such, the bearing of the treaty on the present case is to be determined by the proof of possession at the critical epoch. In connection herewith no precise elements of proof based on historical facts as to the display or even the mere affirmation of sovereignty by Spain over the Island of Palmas have been put forward by the United States. . . . As it is not proved that Spain, at the beginning of 1648 or in June 1714, was in possession of the Island of Palmas (or Miangas), there is no proof that Spain acquired by the Treaty of Munster or the Treaty of Utrecht a title to sovereignty over the island which, in accordance with the said Treaties, and as long as they hold good, could have been modified by the Netherlands only in agreement with Spain.



It is, therefore, unnecessary to consider whether subsequently Spain by any express or conclusive action, abandoned the right, which the said Treaties may have conferred upon her in regard to Palmas (or Miangas). Moreover even if she had acquired a title she never intended to abandon, it would remain to be seen whether continuous and peaceful display of sovereignty by any other Power at a later period might not have superseded even conventional rights. It appears further to be evident that Treaties concluded by Spain with third Powers recognizing her sovereignty over the "Philippines" could not be binding upon the Netherlands and, as such Treaties do not mention the island in dispute, they are not available even as indirect evidence. We thus come back to the question whether, failing any Treaty which, as between the States concerned, decides unequivocally what is the situation as regards the island, the existence of territorial sovereignty is established with sufficient soundness by other facts. . . . The American Counter-Case . . . states that "there is at least some evidence of Spanish activities in the island." In these circumstances it is necessary to consider whether and to what extent the territorial sovereignty of Spain was manifested in or in regard to the Island of Palmas (or Miangas). . . . Apart from certain allegations as to commercial relations between Palmas and Mindanao, the documents laid before the Arbitrator contain no trace of Spanish activities of any kind specifically on the Island of Palmas. Neither is there any official document mentioning the Island of Palmas as belonging to an administrative or judicial district of the former Spanish Government in the Philippines. . . . Among the methods of indirect proof, not of the exercise of sovereignty, but of its existence in law, submitted by the United States, there is the evidence from maps. This subject has been very completely developed in the Memorandum of the United States and has also been fully dealt with in the Netherlands Counter-Memorandum, as well as in the United States Rejoinder. A comparison of the information supplied by the two Parties shows that only with the greatest caution can account be taken of maps in deciding a question of sovereignty, at any rate in the case of an island such as Palmas (or Miangas). Any maps which do not precisely indicate the political distribution of territories, and in particular the Island of Palmas (or Miangas) clearly marked as such, must be rejected forthwith, unless they contribute—supposing that they are accurate—to the location of geographical names. Moreover, indications of such a nature are only of value when there is reason to think that the cartographer has not merely referred to already existing maps—as seems very often to be the case— but that he has based his decision on information carefully collected for the purpose. Above all, then, official or semi-official maps seem capable of fulfilling these conditions, and they would be of special interest in cases where they do not assert the sovereignty of the country of which the Government has caused them to be issued. If the Arbitrator is satisfied as to the existence of legally relevant facts which contradict the statements of cartographers whose sources of information are not known, he can attach no weight to the maps, however numerous and generally appreciated they may be. The first condition required of maps that are to serve on points of law is their geographical accuracy. . . . A map affords only an indication—and that a very indirect one—and, except when annexed to a legal instrument, has not the value of such an instrument, involving recognition or abandonment of rights. . . .



In the last place there remains to be considered title arising out of contiguity. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule of international law, but the alleged principle itself is by its very nature so uncertain and contested that even Governments of the same State have on different occasions maintained contradictory opinions as to its soundness. The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one State rather than another, either by agreement between the Parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the presumption of sovereignty in favour of a particular State, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other States from a region and the duty to display therein the activities of a State. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results. This would be especially true in a case such as that of the island in question, which is not relatively close to one single continent, but forms part of a large archipelago in which strict delimitations between the different parts are not naturally obvious. There lies, however, at the root of the idea of contiguity one point which must be considered also in regard to the Island of Palmas (or Miangas). It has been explained above that in the exercise of territorial sovereignty there are necessarily gaps, intermittence in time and discontinuity in space. This phenomenon will be particularly noticeable in the case of colonial territories, partly uninhabited or as yet partly unsubdued. The fact that a State cannot prove display of sovereignty as regards such a portion of territory cannot forthwith be interpreted as showing that sovereignty is non-existent. Each case must be appreciated in accordance with the particular circumstances. It is, however, to be observed that international arbitral jurisprudence in disputes on territorial sovereignty . . . would seem to attribute greater weight to—even isolated—acts of display of sovereignty than to continuity of territory, even if such continuity is combined with the existence of natural boundaries. As regards groups of islands, it is possible that a group may under certain circumstances be regarded as in law a unit, and that the fate of the principal part may involve the rest. Here, however, we must distinguish between, on the one hand, the act of first taking possession, which can hardly extend to every portion of territory, and, on the other hand, the display of sovereignty as a continuous and prolonged manifestation which must make itself felt through the whole territory. As regards the territory forming the subject of the present dispute, it must be remembered that it is a somewhat isolated island, and therefore a territory clearly delimited and individualised. It is moreover an island permanently inhabited, occupied by a population sufficiently numerous for it to be impossible that acts of administration could be lacking for very



long periods. The memoranda of both Parties assert that there is communication by boat and even with native craft between the Island of Palmas (or Miangas) and neighbouring regions. The inability in such a case to indicate any acts of public administration makes it difficult to imagine the actual display of sovereignty, even if the sovereignty be regarded as confined within such narrow limits as would be supposed for a small island inhabited exclusively by natives. The Netherlands' arguments contend that the East India Company established Dutch sovereignty over the Island of Palmas (or Miangas) as early as the 17th century, by means of conventions with the princes of Tabukan (Taboekan) and Taruna (Taroena), two native chieftains of the Island of Sangi (Groot Sangihe), the principal island of the Talautse Isles (Sangi Islands), and that sovereignty has been displayed during the past two centuries. . . . These successive contracts are one much like another; the more recent are more developed and better suited to modern ideas in economic, religious and other matters, but they are all based on the conception that the prince receives his principality as a fief of the Company or the Dutch State, which is suzerain. Their eminently political nature is confirmed by the supplementary agreements of 1771, 1779, and 1782, concerning the obligations of vassals in the event of war. The dependence of the vassal State is ensured by the important powers given to the nearest representative of the colonial Government and, in the last resort, to that Government itself The fact that these contracts were renewed from time to time and appear to indicate an extension of the influence of the suzerain, seems to show that the regime of suzerainty has been effective. The sovereignty of the Netherlands over the Sangi and Talauer Islands is moreover not disputed. There is here a manifestation of territorial sovereignty normal for such a region. The questions to be solved in the present case are the following: Was the Island of Palmas (or Miangas) in 1898 a part of territory under Netherlands' sovereignty? Did this sovereignty actually exist in 1898 in regard to Palmas (or Miangas) and are the facts proved which were alleged on this subject? If the claim to sovereignty is based on the continuous and peaceful display of State authority, the fact of such display must be shown precisely in relation to the disputed territory. It is not necessary that there should be a special administration established in this territory; but it cannot suffice for the territory to be attached to another by a legal relation which is not recognized in international law as valid against a State contesting this claim to sovereignty; what is essential in such a case is the continuous and peaceful display of actual power in the contested region. . . . It is now necessary to examine what is the nature of the facts invoked as proving such sovereignty, and to what periods such facts relate. This examination will show whether or not the Netherlands have displayed sovereignty over the Island of Palmas (or Miangas) in an effective continuous and peaceful manner at a period at which such exercise may have excluded the acquisition of sovereignty, or a title to such acquisition, by the United States of America. . . . The acts of the East India Company . . . in view of occupying or colonizing the regions at issue in the present affair must, in international law, be entirely assimilated to acts of the Netherlands State itself. From the end of the 16th till the 19th century, companies formed by individuals and



engaged in economic pursuits (Chartered Companies), were invested by the State to whom they were subject with public powers for the acquisition and administration of colonies. The Dutch East India Company is one of the best known. . . . It is a question for decision in each individual case whether a contract concluded by the Company falls within the range of simple economic transactions or is of a political and public administrative nature. As regards contracts between a State or a Company such as the Dutch East India Company and native princes or chiefs of peoples not recognized as members of the community of nations, they are not, in the international law sense, treaties or conventions capable of creating rights and obligations such as may, in internatitinallaw, arise out of treaties. But, on the other hand, contracts of this nature are not wholly void of indirect effects on situations governed by international law; if they do not constitute titles in international law, they are none the less facts of which that law must in certain circumstances take account. From the time of the discoveries until recent times, colonial territory has very often been acquired, especially in the East Indies, by means of contracts with the native authorities, which contracts leave the existing organization more or less intact as regards the native population, whilst granting to the colonizing Power, besides economic advantages such as monopolies or navigation and commercial privileges, also the exclusive direction of relations with other Powers, and the right to exercise public authority in regard to their own nationals and to foreigners. The form of the legal relations created by such contracts is most generally that of suzerain and vassal, or of the so-called colonial protectorate. In substance, it is not an agreement between equals; it is rather a form of internal organization of a colonial territory, on the basis of autonomy for the natives. In order to regularise the situation as regards other States, this organization requires to be completed by the establishment of powers to ensure the fulfilment of the obligations imposed by international law on every State in regard to its own territory. And thus suzerainty over the native State becomes the basis of territorial sovereignty as towards other members of the community of nations. It is the sum-total of functions thus allotted either to the native authorities or to those of the colonial Power which decides the question whether at any certain period the conditions required for the existence of sovereignty are fulfilled. It is a question to be decided in each case whether such a regime is to be considered as effective or whether it is essentially fictitious, either for the whole or a part of the territory. There always remains reserved the question whether the establishment of such a system is not forbidden by the pre-existing rights of other States. . The Arbitrator can therefore not exclude the contracts invoked by the Netherlands from being taken into consideration in the present case. . . . Considering that the contracts of 1676 and 1697 with Tabukan established in favour of the Dutch East India Company extensive rights of suzerainty over Tabukan and an exclusive right of intercourse with that State, and considering further that at least two characteristic acts of jurisdiction expressly relating to Miangas, in 1701 and 1726, are reported, whilst no display of sovereignty by any other Power during the same period is known, it may be admitted that at least in the first quarter of the 18th century, and probably also before that time, the Dutch East India Company exercised rights of suzerainty over Palmas (or Miangas) and that therefore



the island was at that time, in conformity with the international law of the period, under Netherlands sovereignty. . . . The admission of the existence of territorial sovereignty early in the 18th century and the display of such sovereignty, in the 19th century and particularly in 1906, would not lead, as the Netherlands Government appears to suppose, by analogy with French, Dutch and German civil law, to the conclusion that, unless the contrary is proved, there is a presumption for the existence of sovereignty in the meantime. For the reasons given above, no presumptions of this kind are to be applied in international arbitrations, except under express stipulation. It remains for the Tribunal to decide whether or not it is satisfied of the continuous existence of sovereignty, on the ground of evidence as to its display at more or less long intervals.... The conclusions to be derived from the above examination of the arguments of the Parties are the following: The claim of the United States to sovereignty over the Island of Palmas (or Miangas) is derived from Spain by way of cession under the Treaty of Paris. The latter Treaty, though it comprises the island in dispute within the limits of cession, and in spite of the absence of any reserves or protest by the Netherlands as to these limits, has not created in favour of the United States any title of sovereignty such as was not already vested in Spain. The essential point is therefore to decide whether Spain had sovereignty over Palmas (or Miangas) at the time of the coming into force of the Treaty of Paris. The United States base their claim on the titles of discovery, of recognition by treaty and of contiguity, i.e. titles relating to acts or circumstances leading to the acquisition of sovereignty; they have not however established the fact that sovereignty so acquired was effectively displayed at any time. The Netherlands on the contrary found their claim to sovereignty essentially on the title of peaceful and continuous display of State authority over the island. Since this title would in international law prevail over a title of acquisition of sovereignty not followed by actual display of State authority, it is necessary to ascertain in the first place, whether the contention of the Netherlands is sufficiently established by evidence, and, if so, for what period of time. In the opinion of the Arbitrator the Netherlands have succeeded in establishing the following facts: a. The island of Palmas (or Miangas) is identical with an island designated by this or a similar name, which has formed, at least since 1700, successively a part of two . . . native States. . . . b. These native States were from 1677 onwards connected with the East India Company, and thereby with the Netherlands, by contracts of suzerainty, which conferred upon the suzerain such powers as would justify his considering the vassal State as a part of his territory. c. Acts characteristic of State authority exercised either by the vassal State or by the suzerain Power in regard precisely to the Island of Palmas (or Miangas) have been established as occurring . . . between 1700 and 1898, as well as in the period between 1898 and 1906. The acts of indirect or direct display of Netherlands sovereignty at Palmas (or Miangas), especially in the 18th and early 19th centuries are not numerous, and there are considerable gaps in the evidence of continuous display. But apart from the consideration that the manifestations of sovereignty over a small and distant island, inhabited only by natives,



cannot be expected to be frequent, it is not necessary that the display of sovereignty should go back to a very far distant period. It may suffice that such display existed in 1898, and had already existed as continuous and peaceful before that date long enough to enable any Power who might have considered herself as possessing sovereignty over the island, or having a claim to sovereignty, to have, according to local conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights. It is not necessary that the display of sovereignty should be established as having begun at a precise epoch; it suffices that it had existed at the critical period preceding the year 1898. It is quite natural that the establishment of sovereignty may be the outcome of a slow evolution, of a progressive intensification of State control. This is particularly the case, if sovereignty is acquired by the establishment of the suzerainty of a colonial Power over a native State, and in regard to outlying possessions of such a vassal State. . . . After the middle of the 19th century . . . the Netherlands Indian Government considered the island distinctly as a part of its possessions and . . . in the years immediately preceding 1898, an intensification of display of sovereignty took place. . . . The peaceful character of the display of Netherlands sovereignty for the entire period to which the evidence concerning acts of display relates (1700-1906) must be admitted. There is moreover no evidence which would establish any act of display of sovereignty over the island by Spain or another Power, such as might counterbalance or annihilate the manifestations of Netherlands sovereignty. As to third Powers, the evidence submitted to the Tribunal does not disclose any trace of such action. . . . These circumstances . . . are an indirect proof of the exclusive display of Netherlands sovereignty. This being so, it remains to be considered first whether the display of State authority might not be legally defective and therefore unable to create a valid title of sovereignty, and secondly whether the United States may not put forward a better title to that of the Netherlands. As to the conditions of acquisition of sovereignty by way of continuous and peaceful display of State authority (so-called prescription) . . . the following must be said: The display has been open and public, that is to say that it was in conformity with usages as to exercise of sovereignty over colonial States. A clandestine exercise of State authority over an inhabited territory during a considerable length of time would seem to be impossible. An obligation for the Netherlands to notify to other Powers the establishment of suzerainty over the Sangi States or of the display of sovereignty in these territories did not exist. Such notification, like any other formal act, can only be the condition of legality as a consequence of an explicit rule of law. . . . There can further be no doubt that the Netherlands exercised the State authority over the Sangi States as sovereign in their own right, not under a derived or precarious title. . . . It remains now to be seen whether the United States as successors of Spain are in a position to bring forward an equivalent or stronger title. This is to be answered in the negative. The title of discovery, if it had not been already disposed of by the Treaties of Munster and Utrecht would, under the most favourable and most extensive interpretation, exist only as in inchoate title, as a claim to



establish sovereignty by effective occupation. An inchoate title however cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law The same conclusion would be reached, if, for argument's sake, it were admitted that the evidence laid before the Tribunal in conformity with the rules governing the present procedure did not—as it is submitted by the United States—suffice to establish continuous and peaceful display of sovereignty over the Island of Palmas (or Miangas). In this case no Party would have established its claims to sovereignty over the Island and the decision of the Arbitrator would have to be founded on the relative strength of the titles invoked by each Party. A solution on this ground would be necessary under the Special Agreement. . . . The possibility for the Arbitrator to found his decision on the relative strength of the titles invoked on either side must have been envisaged by the Parties to the Special Agreement, because it was to be foreseen that the evidence produced as regards sovereignty over a territory in the circumstances of the island in dispute might prove not to be sufficient to lead to a clear conclusion as to the existence of sovereignty. For the reasons given above, no presumption in favour of Spanish sovereignty can be based in international law on the titles invoked by the United States as successors of Spain. Therefore, there would not be sufficient grounds for deciding the case in favour of the United States, even if it were admitted, in accordance with their submission, that the evidence produced by the Netherlands in support of their claim either does not relate to the Island in dispute or does not suffice to establish a continuous display of State authority over the island These facts at least constitute a beginning of establishment of sovereignty by continuous and peaceful display of State authority, or a commencement of occupation of an island not yet forming a part of the territory of a State; and such a state of things would create in favour of the Netherlands an inchoate title for completing the conditions of sovereignty. Such inchoate title, based on display of State authority, would, in the opinion of the Arbitrator, prevail over an inchoate title derived from discovery, especially if this latter title has been left for a very long time without completion by occupation; and it would equally prevail over any claim which, in equity, might be deduced from the notion of contiguity. International law, like law in general, has the object of assuring the coexistence of different interests which are worthy of legal protection. If, as in the present instance, only one of two conflicting interests is to prevail, because sovereignty can be attributed to but one of the Parties, the interest which involves the maintenance of a state of things having offered at the critical time to the inhabitants of the disputed territory and to other States a certain guarantee for the respect of their rights ought, hi doubt, to prevail over an interest which—supposing it to be recognized in international law—has not yet received any concrete form of development. Supposing that, at the time of the coming into force of the Treaty of Paris, the Island of Palmas (or Miangas) did not form part of the territory of any State, Spain would have been able to cede only the rights which she might possibly derive from discovery or contiguity. On the other hand, the inchoate title of the Netherlands could not have been modified by a treaty concluded between third Powers; and such a treaty could not have



impressed the character of illegality on any act undertaken by the Netherlands with a view to completing their inchoate title—at least as long as no dispute on the matter had arisen, i.e. until 1906. Now it appears from the report on the visit of General Wood to Palmas (or Miangas), on January 21st, 1906, that the establishment of Netherlands authority, attested also by external signs of sovereignty, had already reached such a degree of development, that the importance of maintaining this state of things ought to be considered as prevailing over a claim possibly based either on discovery in very distant times and unsupported by occupation, or on mere geographical position. This is the conclusion reached on the ground of the relative strength of the titles invoked by each Party, and founded exclusively on a limited part of the evidence concerning the epoch immediately preceding the rise of the dispute. This same conclusion must impose itself with still greater force if there be taken into consideration—as the Arbitrator considers should be done— all the evidence which tends to show that there were unchallenged acts of peaceful display of Netherlands sovereignty in the period from 1700 to 1906, and which—as has been stated above—may be regarded as sufficiently proving the existence of Netherlands sovereignty. For these reasons the Arbitrator, in conformity with Article I of the Special Agreement of January 23rd, 1925, decides that: The Island of Palmas (or Miangas) forms in its entirety a part of Netherlands territory. NOTES In the Clipperton Island case, Mexico-France: Arbitration (1931), 2 U.N.R.I.A.A. 1105, the arbitrator stated: "It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists of the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organization capable of making its laws respected. But this step is, properly speaking, but a means of procedure to the taking of possession, and, therefore, is not identical with the latter. There may also be cases where it is unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed." As to acquisition of territory by cession see Regina v. The St. Catherines Milling & Lumber Co. (1887), 13 S.C.R. 577, per Taschereau J. Also protocol of the cession of Horseshoe Reef, signed at London December 9, 1850, I Malloy 663.

Legal Status of Eastern Greenland Permanent Court of International Justice (1933) Series A/B, No. 53.

THE COURT: . . . The Danish submission . . . that the Norwegian occupation of July 10, 1931, is invalid, is founded upon the contention that the area occupied was at the time of the occupation subject to Danish sovereignty; that the area is part of Greenland, and at the time of the



occupation Danish sovereignty existed over all Greenland; consequently it could not be occupied by another Power. In support of this contention, the Danish Government advances two propositions. The first is that the sovereignty which Denmark now enjoys over Greenland has existed for a long time, has been continuously and peacefully exercised, and, until the present dispute, has not been contested by any Power. This proposition Denmark sets out to establish as a fact. The second proposition is that Norway has by treaty or otherwise herself recognized Danish sovereignty over Greenland as a whole and therefore cannot now dispute it. The Norwegian submissions are that Denmark possessed no sovereignty over the area which Norway occupied on July 10, 1931, and that at the time of the occupation the area was terra nullius. Her contention is that the area lay outside the limits of the Danish colonies in Greenland and that Danish sovereignty extended no further than the limits of these colonies. . . . On the Danish side it was maintained that the promise which in 1919 the Norwegian Minister for Foreign Affairs, speaking on behalf of his Government, gave to the diplomatic representative of the Danish Government . . . debarred Norway from proceeding to any occupation of territory in Greenland, even if she had not by other acts recognized an existing Danish sovereignty there. In this connection Denmark has adduced certain other undertakings by Norway, e.g., the international undertakings entered into by that country for the pacific settlement of her disputes with other countries in general, and with Denmark in particular. On the Norwegian side it was maintained that the attitude which Denmark adopted between 1915 and 1921, when she addressed herself to various Powers in order to obtain a recognition of her position in Greenland, was inconsistent with a claim to be already in possession of the sovereignty over all Greenland, and that in the circumstances she is now estopped from alleging a long-established sovereignty over the whole country. The two principal propositions advanced by the Danish Government will each be considered in turn. The first Danish argument is that the Norwegian occupation of part of the east coast of Greenland is invalid because Denmark has claimed and exercised sovereign rights over Greenland as a whole for a long time and has obtained thereby a valid title to sovereignty. The date at which such Danish sovereignty must have existed in order to render the Norwegian occupation invalid is the date at which the occupation took place, viz., July 10, 1931. The Danish claim is not founded upon any particular act of occupation, but alleges—to use the phrase employed in the Palmas Island decision of the Permanent Court of Arbitration, April 4, 1928—a title "founded on the peaceful and continuous display of State authority over the island." It is based upon the view that Denmark now enjoys all the rights which the King of Denmark and Norway enjoyed up till 1814. Both the existence and the extent of these rights must therefore be considered, as well as the Danish claim to sovereignty since that date. It must be borne in mind, however, that as the critical date is July 10, 1931, it is not necessary that sovereignty over Greenland should have existed throughout the period during which the Danish Government



maintains that it was in being. Even if the material submitted to the Court might be thought insufficient to establish the existence of that sovereignty during the earlier periods, this would not exclude a finding that it is sufficient to establish a valid title in the period immediately preceding the occupation. Before proceeding to consider in detail the evidence submitted to the Court, it may be well to state that a claim to sovereignty based not upon some particular act or title such as a treaty of cession, but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power. In most of the cases involving claims to territorial sovereignty which have come before an international tribunal, there have been two competing claims to the sovereignty, and the tribunal has had to decide which of the two is the stronger. One of the peculiar features of the present case is that up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. Indeed, up till 1921, no Power disputed the Danish claim to sovereignty. It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries. In the period when the early Nordic colonies founded by Eric the Red in the tenth century in Greenland were in existence, the modern notions as to territorial sovereignty had not come into being. It is unlikely that either the chiefs or the settlers in these colonies drew any sharp distinction between territory which was and territory which was not subject to them. On the other hand, the undertaking (1261) recorded by Sturla Thordason that fines should be paid to the King of Norway by the men of Greenland in respect of murders whether the dead man was a Norwegian or a Greenlander and whether killed in the settlement or even as far to the North as under the Pole Star, shows that the King of Norway's jurisdiction was not restricted to the confines of the two settlements of Eystribygd and Vestribgyd. So far as it is possible to apply modern terminology to the rights and pretensions of the kings of Norway in Greenland in the thirteenth and fourteenth centuries, the Court holds that at that date these rights amounted to sovereignty and that they were not limited to the two settlements. It has been argued on behalf of Norway that after the disappearance of the two Nordic settlements, Norwegian sovereignty was lost and Greenland became a terra nullius. Conquest and voluntary abandonment are the grounds on which this view is put forward. The word "conquest" is not an appropriate phrase, even if it was assumed that it was fighting with the Eskimos which led to the downfall of the settlements. Conquest only operates as a cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State. The principle does not apply in a case where a settlement has been



established in a distant country and its inhabitants are massacred by the aboriginal population. Nor is the fact of "conquest" established. It is known now that the settlements must have disappeared at an early date, but at the time there seems to have been a belief that despite the loss of contact and the loss of knowledge of the whereabouts of the settlements one or both of them would again be discovered and found to contain the descendants of the early settlers. As regards voluntary abandonment, there is nothing to show any definite renunciation on the part of the kings of Norway or Denmark. . ., The expeditions sent out in 1605 and 1606 . . . to "Our Country of Greenland," the efforts to assure respect on the part of foreign Powers for the King's rights there and the claim to exclude foreigners from the Greenland trade all show that the King Considered that in his dealings with Greenland he was dealing with a country with respect to which he had a special position superior to that of any other Power. This special position can only have been derived from the sovereign rights which accrued to the King of Norway from the submission made to him by the early Nordic settlers and which descended to the Danish-Norwegian kings. It must have covered the territory which is known as Greenland today, because the country was inhabited, . . . Lastly, as there were at this date no colonies or settlements in Greenland, the King's claims cannot have been limited to any particular places in the country. That the King's claims amounted merely to pretensions is clear} for he had no permanent contact with the country, he was exercising no authority there. The claims^ however, were not disputed, No other Power was putting forward any claim to territorial sovereignty in Greenland, and in the absence of any competing claim the King's pretensions to the sovereignty of Greenland subsisted. After the founding of Hans Egede's colonies in 1721, there is in part at least of Greenland a manifestation and exercise of sovereign rights. Consequently, both the elements necessary to establish a valid title to sovereignty—the intention and the exercise—-were present, but the question arises as to how far the operation of these elements extended. The King's pretensions to sovereignty which existed at the time of the foundation of the colonies are sufficient to demonstrate the intention, and, as said above, these were not limited to any particular part of the country. Was the exercise of sovereign rights such as to confer a valid title to sovereignty over the whole country? The founding of the colonies was accompanied by the grant of a monopoly of the trade, and before long legislation was found to be necessary to protect and enforce the monopoly. In the earlier Ordinances of 1740-1751, . . . the prohibition of trading was restricted to the colonies, but those Ordinances also contained a prohibition of injurious treatment of the Greenlanders, and this was not limited to the colonies, but operated in Greenland as a whole. Furthermore, the prohibition of trading was to apply not only to the existing colonies but in any future colonies which might be established. Legislation is < one of the most obvious forms of the exercise of sovereign power, and it is clear that the operation of these enactments was not restricted > to the limits of the colonies. It therefore follows that the sovereign right in virtue of which the enactments were issued cannot have been restricted to the limits of the colonies.... Norway has argued that in the legislative and administrative acts of the eighteenth century on which Denmark relies as proof of the exercise pf her sovereignty, the word "Greenland" is not used in the geographical



sense, but means only the colonies or the colonized area on the west coast. This is a point as to which the burden of proof lies on Norway. The geographical meaning of the word "Greenland," i.e., the name which is -habitually used in the maps to denominate the whole island, must be regarded as the ordinary meaning of the word. If it is alleged by one of the parties that some unusual or exceptional meaning is to be attributed to it, it lies on that party to establish its contention. In the opinion of the Court, Norway has not succeeded in establishing her contention.. .. The fact that most of these acts were concerned with what happened in the colonies and that the colonies were all situated on the west coast is not by itself sufficient ground for holding that the authority in virtue of which the act was taken— whether legislative or administrative—was also restricted to the colonized area. Unless it was so restricted, it affords no ground for interpreting the word "Greenland" in this restricted sense. . . . It has also been argued on behalf of Norway that "Greenland" as used in documents of this period cannot have been intended to include the east coast because at that time the east coast was unknown. An examination, however, of the maps of the seventeenth and eighteenth centuries shows that the general features and configuration of the east coast of Greenland were known to the cartographers. . . . The conclusion to which the Court is led is that, bearing in mind the absence of any claim to sovereignty by another Power, and the Arctic and inaccessible character of the uncolonized parts of the country, the King of Denmark and Norway displayed during the period from the founding of the colonies . . .in 1721 up to 1814 his authority to an extent sufficient to give his country a valid claim to sovereignty, and that his rights'over Greenland were not limited to the colonized area. Up to the date of the Treaty of Kiel of 1814, the rights which the King possessed over Greenland were enjoyed by him as King of Norway. It was as a Norwegian possession that Greenland was dealt with in Article 4 of that Treaty, whereby the King ceded to the King of Sweden the Kingdom of Norway, "la Groenlande . . . non comprise. . . ." The result of the Treaty was that what had been a Norwegian possession remained with the King of Denmark and became for the future a Danish possession. Except in this respect, the Treaty of Kiel did not affect or extend the King's rights over Greenland. In order to establish the contention that Denmark has exercised in fact sovereignty over all Greenland for a long time, Counsel for Denmark have laid stress on the long series of conventions—mostly commercial in character—which have been concluded by Denmark and in which, with the concurrence of the other contracting Party, a stipulation has been inserted to the effect that the convention shall not apply to Greenland. . . . The importance of these treaties is that they show a willingness on the part of the States with which Denmark has contracted to admit her right to exclude Greenland. To some of these treaties, Norway has herself been a party.... . . . These treaties may also be regarded as demonstrating sufficiently Denmark's will and intention to exercise sovereignty over Greenland. There remains the question whether during this period . . . she exercised authority in the uncolonized area sufficiently to give her a valid claim to sovereignty therein. In their arguments, Counsel for Denmark have relied chiefly on the concession granted in 1863 to Taylor of exclusive rights on the east coast for trading, mining, hunting, etc. The result of all the documents connected with the grant of the concession is to show that, on



the one side, it was granted upon the footing that the King of Denmark Was in a position to grant a valid monopoly on the east coast and that his sovereign rights entitled him to do so, and, on the other, that the concessionaires in England regarded the grant of a monopoly as essential to the success of their projects and had no doubts as to the validity of the rights conferred. . . . The concessions granted for the erection of telegraph lines and the legislation fixing the limits of territorial waters in 1905 are also manifestations of the exercise of sovereign authority. In view of the above facts, when taken in conjunction with the legislation she had enacted applicable to Greenland generally, the numerous treaties in which Denmark, with the concurrence of the other contracting party, provided for the non-application of the treaty to Greenland in general, and the absence of all claim to sovereignty over Greenland by any other Power, Denmark must be regarded as having displayed during this period of 1814 to 1915 her authority over the uncolonized part of the country to a degree sufficient to confer valid title to the sovereignty. The applications which the Danish Government addressed to foreign governments between 1915 and 1921, seeking the recognition of Denmark's position in Greenland . . . (must be dealt with) in some detail. The point at issue between the parties is whether Denmark was seeking a recognition of an existing title over all Greenland, as has been urged by her Counsel, or, as maintained by Counsel on behalf of Norway, whether she was trying to persuade the Powers to agree to an extension of her sovereignty to territory which did not as yet belong to her. . . . The Court has come to the conclusion that in judging the effect of these notes too much importance must not be attached to particular expressions here and there. The correspondence must be judged as a whole. One reason for this is that in some cases the notes were written by individual Danish diplomatic representatives, and, though no doubt they were based on the instructions these Ministers received, some variation must be expected and allowed for in the terms they used. . . . . . . Nevertheless, the conclusion which the Court has reached is that the view upheld by the Danish Government in the present case is right, and that the object which that Government was endeavouring to secure was an assurance from each of the foreign governments concerned that it accepted the Danish point of view that all Greenland was akeady subject to Danish sovereignty and was therefore content to see an extension of Denmark's activities to the uncolonized parts of Greenland. . . . The next government to be approached was the Norwegian. That Government had already manifested a desire to acquire Spitzbergen, and in April, 1919, the Danish Government had given the Norwegian Government to understand that, as there were no Danish interests in Spitzbergen which ran counter to those of Norway, Denmark would not oppose the Norwegian aspirations. Early in July, 1919, the Danish Minister for Foreign Affairs learned . . . that the Spitzbergen question was to come before a Committee of the Peace Conference. Instructions were thereupon issued, on July 12, 1919, to the Danish Minister at Christiania to make to the Norwegian Minister for Foreign Affairs a communication to the effect that a Committee had just been constituted at the Peace Conference "for the purpose of considering the claims that may be put forward by different countries to Spitzbergen," and



that the Danish Government would be prepared to renew before this Committee, the unofficial assurance already given to the Norwegian Government, according to which Denmark . . . would raise no objection to Norway's claim. . . . In making this statement to the Norwegian Minister for Foreign Affairs, the Danish Minister was to point out "that the Danish Government had been anxious for some years past to obtain the recognition by all the interested Powers of Denmark's sovereignty over the whole of Greenland and that it intended to place that question before the abovementioned Committee"; that the Government of the United States of America had made a declaration that that Government would not oppose the extension of Danish political and economic interests over all Greenland; and further that the Danish Government counted on the Norwegian Government not making any difficulties with regard to such an extension. When, on July 14, 1919, the Danish Minister saw the Norwegian Minister of Foreign Aifairs, M. Ihlen, the latter merely replied "that the question would be considered." . . . On July 22 following, the Minister for Foreign Affairs, after informing his colleagues of the Norwegian Cabinet, made a statement to the Danish Minister to the effect "that the Norwegian Government would not make any difficulties in the settlement of this question" (i.e., the question raised on July 14 by the Danish Government). These are the words recorded in the minute by M. Ihlen himself. According to the report made by the Danish Minister to his own Government, M. Ihlen's words were that "the plans of the Royal (Danish) Government respecting Danish sovereignty over the whole of Greenland . . . would meet with no difficulty on the part of Norway." The Danish Government were not able to bring the question before the Peace Conference in 1919. The matter was therefore taken up with the governments individually, instructions being sent to the Danish Ministers in London, Paris, Rome and Tokyo . . . to address communications to the Governments to which they were accredited. These instructions . . . (admitted) that no formal "prise de possession" had been taken of all Greenland, and a statement is made that it is desirable that Denmark should extend its "sollicitude par sa souverainete sur le Greenland tout entier." The text of the American declaration is set out and the instructions go on to say that, having got the American declaration, Denmark proposes also to obtain recognition by other Powers of Danish sovereignty over all Greenland, and the Minister concerned is therefore to ask for official recognition of Danish sovereignty over all Greenland. . . . It will be seen that, in these instructions, the Danish Minister for Foreign Affairs treats recognition of Danish sovereignty over all Greenland and a statement that there is no objection to the Danish Government extending its political and economic interests to the whole of Greenland as meaning the same thing. . . . . . . The memorandum addressed to the Norwegian Government . . . repeats the Danish desire to obtain recognition by the Powers concerned of Danish sovereignty over the whole of that country. . . . Mention is made of Spitzbergen and of how Denmark had said, in 1919, that she would not oppose the Norwegian claims there and that she reckoned on an extension of Danish sovereignty in Greenland not meeting with difficulties on the part of Norway. Reference is then made to the Ihlen declaration, and it is said that as this had only been verbal Denmark would now like to have a written confirmation of it. This memorandum . . . is the document chiefly relied on by the



Norwegian Counsel in maintaining that what Denmark sought to obtain was an extension of her sovereignty to the non-colonized part of Greenland in the sense that it implied that no such sovereignty existed at the moment. It is true that, as stated in the memorandum itself, the word "extension" is used, but it is used in connection with the attitude which Denmark had adopted in 1919. . . . As said above, too much importance must not be attached to some of these individual phrases and expressions when taken apart from their context.... The Danish Government thus enunciates once more the view . . . that it already possessed sovereignty over all Greenland. If that was the view which the Danish Government held before, during and at the close of these applications to the Powers, its action in approaching them in the way it did must certainly have been intended to ensure that those Powers should accept the point of view maintained by the Danish Government, namely, that sovereignty already existed over all Greenland, and not to persuade them to agree that a part of Greenland not formerly under Danish sovereignty should now be brought thereunder. Their object was to ensure that those Powers would not attempt themselves to take possession of any non-colonized part of Greenland. The method of achieving this object was to get the Powers to recognize an existing state of fact. In these circumstances, there can be no ground for holding that, by the attitude which the Danish Government adopted, it admitted that it possessed no sovereignty over the uncolonized parts of Greenland, nor for holding that it is estopped from claiming, as it claims in the present case, that Denmark possesses an old-established sovereignty over all Greenland. The period subsequent to . . . 1921 witnessed a considerable increase in the activity of the Danish Government on the eastern coast of Greenland. . . . These were all cases in which the Danish Government was exercising governmental functions in connection with the territory now under dispute. The character of these Danish acts is not altered by the protests or reserves which, from time to time, were made by the Norwegian Government. ... These acts, coupled with the activities of the Danish hunting expeditions which were supported by the Danish Government, the increase in the number erf scientific expeditions engaged in mapping and exploring the country with the authorization and encouragement of the Government, even though the expeditions may have been organized by non-official institutions, the occasions on which the Godthaab, a vessel belonging to the State and placed at one time under the command of a naval officer, was sent to the East coast on inspection duty, the issue of permits by the Danish authorities, under regulations issued in 1930, to persons visiting the eastern coast of Greenland, show to a sufficient extent—even when separated from the history of the preceding periods—the two elements necessary to establish a valid title to sovereignty, namely; the intention and will to exercise such sovereignty and the manifestation of State activity. It follows from the above that the Court is satisfied that Denmark has succeeded in establishing her contention that at the critical date, namely, July 10, 1931, she possessed a valid title to the sovereignty over all Greenland. This finding constitutes by itself sufficient reason for holding that the occupation of July 10, 1931, and any steps taken in this connection by the Norwegian Government, were illegal and invalid.



The Court will now consider the second Danish proposition that Norway had given certain undertakings which recognized Danish sovereignty over all Greenland. ... . . . When the King of Denmark was obliged to renounce, in favour of the King of Sweden, his kingdom of Norway, Article 4 of the Treaty of Kiel of January 14, 1814, excepted from that renunciation Greenland, the Faroes and Iceland.... The Court holds that, in consequence of the various undertakings resulting from the separation of Norway and Denmark, . . . Norway has recognized Danish sovereignty over the whole of Greenland and consequently cannot proceed to the occupation of any part thereof. A second series of undertakings by Norway, recognizing Danish sovereignty over Greenland, is afforded by various bilateral agreements concluded by Norway and Denmark, and by various multilateral agreements to which both Denmark and Norway were contracting parties, in which Greenland has been described as a Danish colony or as forming part of Denmark or in which Denmark has been allowed to exclude Greenland from the operation of the agreement. . . . In accepting these bilateral and multilateral agreements as binding upon herself, Norway reaffirmed that she recognized the whole of Greenland as Danish; and thereby she has debarred herself from contesting Danish sovereignty over the whole of Greenland, and, in consequence, from proceeding to occupy any part of it. . . . The Ihlen declaration . . . must also be considered. This declaration by M. Ihlen has been relied on by Counsel for Denmark as a recognition of an existing Danish sovereignty in Greenland. The Court is unable to accept this point of view. A careful examination of the words used and of the circumstances in which they were used, as well as of the subsequent developments, shows that M. Ihlen cannot have meant to be giving then and there a definitive recognition of Danish sovereignty over Greenland, and shows also that he cannot have been understood by the Danish Government at the time as having done so. ... Nevertheless, the point which must now be considered is whether the Ihlen declaration—even if not constituting a definitive recognition of Danish sovereignty—did not constitute an engagement obliging Norway to refrain from occupying any part of Greenland. . . . . . . It is clear from the relevant Danish documents . . . that the Danish attitude in the Spitzbergen question and the Norwegian attitude in the Greenland question were regarded in Denmark as interdependent, and this interdependence appears to be reflected also in M. Ihlen's minute of the interview. Even if this interdependence—which, in view of the affirmative, reply of the Norwegian Government, in whose name the Minister for Foreign Affairs was speaking, would have created a bilateral engagement— is not held to have been established, it can hardly be denied that what Denmark was asking of Norway—"not to make any difficulties in the settlement of the (Greenland) question"—was equivalent to what she was indicating her readiness to concede in the Spitzbergen question—to refrain from opposing "the wishes of Norway in regard to the settlement of this question." What Denmark desired to obtain from Norway was that the latter should do nothing to obstruct the Danish plans in regard to Greenland. The declaration which the Minister for Foreign Affairs gave on July 22, 1919, on behalf of the Norwegian Government, was definitely affirmative: "I told the Danish Minister today that the Norwegian Govern-



ment would not make any difficulty in the settlement of this question." The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs. . . . The Court is unable to regard the Ihlen declaration of July 22, 1919, otherwise than as unconditional and definitive. . . . The Court is unable to read into the words of the Ihlen declaration "in the settlement of this question"—i.e., the Greenland question—a condition which would render the promise to refrain from making any difficulties inoperative should a settlement not be reached. The promise was unconditional and definitive. . . . It follows that, as a result of the undertaking involved in the Ihlen declaration of July 22, 1919, Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland. . . ... NOTES Dissenting judgments were delivered by judge Anzilotti and by ad hoc Norwegian judge Vogt. For a case that did not present the characteristics of a dispute concerning the acquisition of sovereignty over terra nullius, see The Minquiers and Ecrehos (France-United Kingdom), I.C.J. Reports 1953, 47. There, one party claimed an ancient or original title to the islands involved in the dispute, while the other party held that its title had always been maintained and was never lost. See R. St. J. Macdonald (1953), 1 McGill LJ. 277. As to accretion and prescription, see the Chamizal Tract Arbitration (Mexico-United States) (1910), 5 Am. J. Int. L. 782, finally settled in 1963 (1964), 58 Am. J. Int. L. 336.

B) POLAR REGIONS 1) Arctic Excerpts from L. Head, Canadian Claims to Territorial Sovereignty in the Arctic Regions (1963), 9 McGill LJ. 200: II The practice of claiming sovereignty over a sector of the earth's surface, as measured by meridians of longitude, is not new. The first example is found in the Papal Bull Inter Caetera of Alexander VI, dated 4 May 1493, later replaced by the Treaty of Tordesillas concluded 7 June 1494 between Spain and Portugal. More recently, various States have circumscribed their claims to portions of Antarctica by meridians of longitude. And several states have subscribed at one time or another to the "sector theory." The Arctic "sector theory" is rightly associated with Canada for it was first offered by a Canadian, and first debated in the Canadian Parliament. In the half century since the first appearance of the theory, many Canadian statesmen have taken great pains either to criticize it or praise it. Some have offered a disarming display of their open-minded attitude and have spoken on various occasions on both sides of the issue. An Arctic sector is deceptively simple, and is compounded of only two ingredients: a base line or arc described along the Arctic Circle through



territory unquestionably within the jurisdiction of a temperate zone state, and sides defined by meridians of longitude extending from the North Pole south to the most easterly and westerly points on the Arctic Circle pierced by the state. Under the theory, nations possessing territory extending into the Arctic regions have a rightful claim to all territory—be it land, water or ice—lying to their north. This claim springs from the geographical relationship of the claimant state to the claimed territory; the two areas must be contiguous along the Arctic Circle. The Arctic sector theory was first publicly propounded by Pascal Poirier, a Canadian Senator, in 1907. Senator Poirier was at that time delivering a speech in the Senate, the upper house of Canada's bi-cameral Parliament, in support of his own motion: I J J That it be resolved that the Senate is of the opinion that the time has come for Canada to make a formal declaration of possession of the lands and islands situated in the north of the Dominion, and extending to the north pole.

Poirier's resolution was abortive. His motion was neither seconded nor put to a vote. The draft resolution embodied in the motion was not accepted by the Senate, and never reached the floor of the House of Commons. Officially, Senator Poirier's Arctic sector theory was a one-man idea, but it rapidly attracted attention disproportionate to the importance attached to it by Poirier himself.20 Poirier said that Canada had four claims to sovereignty in the Arctic regions. The first claim was through the Arctic discoveries of such English explorers as Cabot, Frobisher, Davis, Perry, Baffin, and Fox. The second claim arose out of the cession to the English Crown of21all French claims in what is now Canada by the Treaty of Paris in 1763. The third claim was based on the occupying exploits of the Hudson's23 Bay Company.22 Only as a fourth ground did Poirier mention sectors: We have a fourth claim, we can establish a fourth ground for ownership of all the lands and islands that extend from the arctic circle up to the north pole. Last year, I think it was, when our Captain Bernier [a noted Arctic explorer of that day] was in New York, a guest of the Arctic Club, the question being mooted as to the ownership of Arctic lands, it was proposed and agreed—and this is not a novel affair—that in future partition, of northern lands, a country whose possession today goes up to the Arctic regions, will have a right, or should have a right, or has a right to all the lands that are to be found in the waters between a line extending from its eastern extremity north, and another line extending from the western extremity north. All the lands between the two lines up to the north pole should belong and do belong to the country whose territory abuts up there, Now if we take our geography, it is a simple matter. !»1906-07 Debates, Senate, Canada, 266, °Poirier addressed the Senate on the same subject a few years later, but made no mention of the sector theory. Instead, he emphasized the importance of occupation and the exercise of jurisdiction as evidence of sovereignty. Sec. 1909-10 Debates, Senate, Canada, 179-184. 21 The Definitive Treaty of Peace and Friendship between His most Brittanick Majesty, the Most Christian King, and the King of Spain, A Collection of All the Treaties of Peace, Alliance, and Commerce between Great Britain and other powers from the Revolution in 1688 to the Present Time (London, 1772), v. II, p. 272. 22 These exploits, sweeping though they were, did not match the claims of the Company, however. Poirier quoted a Company claim to all lands lying from the north of Hudson Bay to the North Pole. Supra, note 19, at 271. a, note 19, at 271. T23Supra 2



The Senator then marked off the globe into five sectors, each commencing in the territory of a nation lying immediately below the Arctic Circle: Norway and Sweden, Russia, the United States (Alaska), Canada, and Denmark (Greenland). In doing so he stated:24 From 141 to 60 degrees west we are on Canadian territory. That is the territory that has been discovered by the seamen of England, that has been traversed by MacClure and by Franklin. It is the territory that has been taken possession of by the Hudson Bay Company, and it is the territory that we claim, and I hold that no foreigner has a right to go and hoist a flag on it up to the north pole, because it is not only within the sphere of possession of England, but it is in the actual possession of England. This partition o£ the polar regions seems to me to be the most natural, because it is simply a geographical one. By that means difficulties would be avoided, and there would be no cause for trouble between interested countries. Every country bordering on the Arctic regions would simply extend its possessions up to the north pole. This passage leaves the impression that Poirier felt that Canada was rightly entitled to the Arctic areas to the north by virtue of discovery and actual possession; that the sector theory was more of a policy of containment to be employed by all Arctic nations, but one on which Canada need not rely in the first instance. Senator Poirier was not unfamiliar with the more conventional theories of title to terra nullius. Indeed he forecast the later findings of the arbiter in the Isle of Palmas case by his statement on effective occupation:25 . . .in the case of the Arctic wastes and recesses, what is deemed, in my view of it, sufficient to establish possessions and give a good title, is occupancy as much as occupancy can take place. No more would be demanded to make a perfect title for England in those regions than is requisite in the case of France in the Sahara Desert. No one expects France to till the Sahara Desert in order to come within the definition of what is needed to perfect occupancy. The fact is, England did what could be done in the way of occupancy. . . . The sector theory gained little immediate sympathy from the Canadian Government. The Right Honourable Sir Richard J. Cartwright, Minister, of Trade and Commerce and the Government leader in the Senate, closed the debate by speaking immediately following Poirier. He said, in part:26 . . . I may state to my hon. friend that the importance of having the boundary of Canada defined to the northward has not at all escaped the attention of the government. They have, as the hon. gentleman knows, sent out an expedition very recently to that region, and have established certain posts, and they have likewise exercised various acts of dominion. They have, besides establishing the posts I have referred to, levied customs duties and have exercised our authority over the various whaling vessels they have come across, which, I think, will be found sufficient to maintain our just rights in that quarter. . . . Pascal Poirier and his "sector theory" have gained a permanent position in the history of the Arctic. In the period between the wars, considerable attention was focused on the far north, and much learned comment about the theory appeared in print. Opponents of the theory argued powerfully that national claims under the theory were in exact reverse order to the 224Ibid The German writer Breitfuss in "Territorial Division of the Arctic" (1928-9) 8 Dalhousie Review 456, at 467-8, also suggests 5 sectors: NorwegianFinnish, Soviet, Alaskan, Canadian, and Greenland. The Soviet writer Lakhtine, on the other hand, in "Rights Over the Arctic" (1930) 24 Am. J. Int'l. L. 703 at 715-6, suggests 6 sectors: Norwegian, Finnish, Soviet, Alaskan, Canadian, and Greenland. 25 Supra, note 19, at 273. 226Ibidat 274.



normal process of acquisition. The sector theory places territory in the legal possession of a state even before it is discovered. How, it was argued, can a state claim sovereignty over areas about which it knows absolutely nothing? As late as 1930, when some speculation still remained about the existence of an Arctic land mass similar to the sub-continent of Antarctica, the sector principle appeared to differ little from the Spanish and Portuguese claims of the early 16th century. Proponents of the theory, on the other hand, often rested their cases on fragile supports. Poirier had said, for example—but almost parenthetically—that a geographical division of the Arctic would avoid "difficulties" between interested nations.27 The Soviet writer Lakhtine argued that sectors offered the only "practical" solution to the problem.28 Theorists, however, often thought otherwise. Smedal, a prominent Norwegian publicist of the period, was very outspoken:29 The parties on whom the greatest wrong would be inflicted by the sector principle are the States that are not bounded by the Arctic Sea. Any State whatsoever may, from scientific or economic reasons, be interested in having the sovereignty over an Arctic land, and it is quite illegitimate to exclude such a State from obtaining this on the pretence that its territory is not lying sufficiently far to the north. Lakhtine objects to this view on the ground that the interests of these States in the Arctic can only be of an "imperialist character," and that the interests for this reason "cannot be recognized as being reasonable." However, it cannot in any way be admitted that a sector State, in looking after its economic and political interests in the Arctic, is performing an act of a more elevated or ideal character than any other State does in looking after its interests.

Contiguity is the basic ingredient of a sector claim. The reasons advanced in favour of sectors—practicality, simplicity, even inevitability30—flow from the propinquity of the claimant state to the territories being claimed. The bare principle of contiguity, however, no longer forms—if indeed it ever did—any part of international law with respect to territory. In this sense, the sector theory is related to the now discredited "hinterland" theory. Smedal regarded the sector theory as a perversion of the hinterland doctrine because under it claims to territory proceed from the centre of a continent out towards the sea rather than from the coast inward. McKitterick, however, found the two theories to be part of the same whole:31 The sector theory is the last survivor of the old "hinterland" principle as applied to continents, and it appears to have no stronger basis in international law than that now discarded theory. Under the present system, the occupation by one state of land falling within the sector of another can at the most be regarded as unfriendly, but there seems to be no reason for assuming that it would amount to a breach of the law. 27 Taracouzio, in Soviets in the Arctic (1938), 323, says this argument stems from the "pragmatic school." 28Lakhtine, "Rights Over the Arctic" (1930) 24 Am. J. Int'l. L. 703, at 711. 29 Smedal, Acquisition of Sovereignty Over Polar Areas (Oslo, 1931, translation by 30Meyer), p. 62. ". . . if these . . . Powers are satisfied with such a partition, the rest of the world will have to be."—Hunter Miller, "Political Rights in the Arctic" (1925-26) 4 Foreign Affairs 47, at 60. "The sector principle of territorial claims in the Arctic, if confined to lands and waters within the respective sectors, is sufficiently in accord with the inevitable to make its tacit adoption highly probable."—Svarlein, "The Legal Status of the Arctic" (1958) 52 Proceedings of the Am. Soc'y. of Int'l. L. 136. 31 McKitterick, "The Validity of Territorial and Other Claims in Polar Regions" (1939) 21 J. of Comparative Legislation and Int'l. L. (3rd Series) 89, at 95.



IV Canada has often been referred to as the haven of the sector theory. There is much evidence that this is not so. Canadian Government reception to Senator Poirier's original sector proposition, as stated above, was less than enthusiastic. Nor did it soon change. Poirier had credited Captain Bernier, a sea-faring explorer who had been commissioned by the Canadian Government to lead several geographical missions into the Arctic, as a proponent of the sector theory.37 Two years later, Captain Bernier was reported by a New York newspaper as proposing that the several nations adjacent to the Arctic Circle should meet for the purpose of dividing up the polar sea. Such a meeting would be, in effect, an implementation of the sector theory. The then Prime Minister of Canada, Sir Wilfred Laurier, was asked to comment on this report in the House of Commons. He replied: ". . . if Captain Bernier spoke as he is reported to have38spoken, all I can say is that I think he had better keep to his own deck." On 10 June 1925, the Minister of the Interior, the Honourable Charles Stewart, told the House of Commons that Canada claimed the territory to the pole40". . . outlined between the degrees of longitude 6042 and 141 .. ,"39 41 Smedal, David Hunter Miller, and Professor Svarlein all regard this as evidence of Canadian support of the sector theory. Miller wrote that the Canadian claims were ". . . definitely and officially stated by Mr. Stewart, and are43 outlined on a map laid on the table of the Canadian House of Commons." With respect, the Honourable Minister was less definite than Miller contends. The map was not laid on the table of the House (a procedure of some legislative significance) but was instead made available after the conclusion of the day's sitting for examination by Members.44 45The sector "claim" was made in the following, less than precise, manner: . . . international law, in a vague sort of way, creates ownership of unclaimed lands within one hundred miles of any coast, even if possession has not been taken. At least there is a sort of unwritten law in that respect. Of course possession is a very large part of international law as well as any other law.

Mr. Stewart had spoken in much the same terms earlier in the same session. 37 Poirier had stated that Bernier's sector proposal to the Arctic Club was "not a novel affair," but did not enlarge on the statement. (See p. 203 above.) He may have considered the Papal Bulls as precedents. The Canadian Government had itself employed sector overtones when in 1878 it sought sovereignty over the Arctic islands by urging the definition of the Canadian boundaries as: "On the East by the Atlantic Ocean, which boundary shall extend towards the North by Davis Straits, Baffin's Bay, Smith's Straits and Kennedy Channel, including all the islands in and adjacent thereto . . . on the North the Boundary shall be so extended as to include the entire continent to the Arctic Ocean, and all the islands in the same westward to the one hundred and forty-first meridian west of Greenwich; and on the North West by the United States Territory of Alaska."—1878 Debates, Senate, Canada, vol. 1, p. 903. The occasion was a joint address to Her Majesty the Queen from the Senate and the House of Commons of Canada. (See pp. 211-212 below.) 38 1909-10 Debates, House of Commons, Canada, vol. 2, p. 2711-2. 89 1925 Debates, House of Commons, Canada, vol. 4, p. 4084. *°Op. cit., supra, note 29, at 65. 41 Hunter Miller, "Political Rights in the Arctic (1925-26) 4 Foreign Affairs 47, at 4260. Svarlein, "The Legal Status of the Arctic" (1958) 52 Proceedings of the Am. Soc'y. of Int'l. L. 139. ^Supra, note 41, at 50. 44 1925 Debates, House of Commons, Canada, vol. 4, p. 4083. id.t vol. 1, p. 1111.



This vague outline of Canadian policy was a continuation of some hazy Government statements in the period 1922 to 1924. In 1922, during a debate in Committee of Supply, the Leader of the Opposition and the Minister of Finance (second only in rank at that time to the Prime Minister) contributed to the following exchange after the Minister had been asked what the Government's policy was with respect to the northern islands:46 Minister of Finance—It is a delicate matter to state the policy of the Government on that question. Leader of Opposition—Has the Government any policy? Minister of Finance—What we have we hold.

That question to the Minister appears to have been justified by later events. If, at this time, Canada was adhering to the sector principle, it might be expected that Canada would not lay claim to islands lying within the sector of another country. Yet Canada did claim Wrangel Island, which is within the Soviet sector. Prime Minister Mackenzie King told the House of Commons in 1922 that the "Government certainly maintains the position that Wrangel Island is part of the property of this country."47 This certainly was short lived. In 1923, the Honourable Ernest Lapointe, Minister of Fisheries in the King government, when asked who owned Wrangel Island, replied: "I should like to know myself."48 And the following year, the Honourable Charles Stewart, Minister of the Interior in the same government, said ". . . as far as Canada is concerned, we do not intend to set up any claim to the island."49 The Soviet authorities disposed of the problem by moving in and forceably evicting the residents of the island. By that time the original Canadian occupants had sold their interests to United States citizens, however, and it became unnecessary for Canada to take any official stand. These Government statements do not appear to endorse the sector theory which, as enunciated by Senator Poirier, was designed to avoid territorial disputes by dividing up the polar areas. The theory did not contemplate unilateral claims in a foreign sector. In 1938, Canada was evidently endorsing the sector theory. The Minister of Mines and Resources of the Liberal Government told the House of Commons that no foreign challenge to Canada's sovereignty in the Arctic could be successful. He referred to his understanding that international usage had established clearly certain principles upon which sovereignty could be claimed in remote areas of the Arctic which have never 50been visited by man, and that these principles were favourable to Canada. He did not enunciate the principles, but they were other than the sector theory because:51 What is known as the sector principle, in the determination of these areas is now very generally recognized, and on the basis of that principle as -well our sovereignty extends right to the pole within the limits of the sector. The Honourable Minister did not explicitly state that Canada claimed sovereignty to ice and water, but this may be inferred inasmuch as no land exists within 450 miles of the pole. 46 1922 Debates, House of Commons, Canada, vol. 2, p. 1750. ^Ibid., at 1751. 48 1923 Debates, House of Commons, Canada, vol. 4, p. 3360. 4 »1924 Debates, House of Commons, Canada, vol. 2, p. 1110. 50 193 8 Debates, House of Commons, Canada, vol. 3, p. 3080. 551Ibid at 3081. Italics added.



Prime Minister St. Laurent repeated in 1953 the Government's view that the Canadian boundary terminated at the pole. He told the House of Commons:*52 We must leave no doubt about our active occupation and exercise of our sovereignty in these lands right up to the pole. The meaning of his words is not clear. Occupation precludes a claim under the sector theory, but how does a nation occupy the ice and water lying between the Arctic archipelago and the pole? Once again, the observer is invited to assume that Canada lays claim to ice and water as well as to land. That, at any rate, is what Lester B. Pearson wrote in 1946 when he was Canadian Ambassador to the United States. His words were unequivocal:53 A large part of the world's total Arctic area is Canadian. One should know exactly what this part comprises. It includes not only Canada's northern mainland, but the islands and the frozen sea north of the mainland between the meridians of its east and west boundaries, extended to the North Pole. The Minister of Northern Affairs and National Resources of the St. Laurent Government expressed contradictory views to the House of Commons in 1956:54 We have never subscribed to the sector theory in application to the ice. We are content that our sovereignty exists over all the Arctic Islands. There is no doubt about it and there are no difficulties concerning it ... We have never upheld a general sector theory. To our mind the sea, be it frozen or in its natural liquid state, is the sea; and our sovereignty exists over the lands and over our territorial waters. The most recent ministerial pronouncement, of special significance because it was voiced by a member of the Conservative Government and was the first policy statement on this subject made by an administration out of office from 1935 until 1957, was read to the House of Commons in 1958 by the Honourable Alvin Hamilton, Minister of Northern Affairs and National Resources. Mr. Hamilton was answering a question asked by Mr. Lesage, his Liberal predecessor in the portfolio.55 Mr. Lesage—Are the waters of the Arctic ocean north of the Arctic archipelago up to the north pole, in the so-called Canadian sector, Canadian waters? Hon. Alyin Hamilton—Mr. Speaker, the answer is that all the islands north of the mainland of Canada which comprise the Canadian Arctic archipelago are of course part of Canada. North of the limits of the archipelago, however, the position is complicated by unusual physical features. The Arctic ocean is covered for the most part of the year with polar pack ice having an average thickness of about eight feet. Leads of water do open up as a result of the pack ice being in continuous motion, but for practical purposes it might be said for the most part to be a permanently frozen sea. It will be seen, then, that the Arctic ocean north of the archipelago is not open water nor has it the stable qualities of land. Consequently the ordinary rules of international law may or may not have application. 52 1953-54 Debates, House of Commons, Canada, vol. 1, p. 700; reprinted in (1954) 6 External Affairs 16 (Ottawa). ^Pearson, "Canada Looks Down North" (1945-46) 24 Foreign Affairs 638. Mr. Pearson later served as Secretary of State for External Affairs in the St. Laurent Government. 54 1956 Debates, House of Commons, Canada, vol. 7, p. 6955. 55 1957-58 Debates, House of Commons, Canada, vol. 2, p. 1559.



Before making any decision regarding the status which Canada might wish to contend for this area, the government will consider every aspect of the question with due regard to the best interests of Canada and to international law.

Mr. Hamilton's subsequent statements appear to be consistent with established principles of international law. He has said in the House of Commons: "Sovereignty is the effective occupation of an area by a country which has command or control over it."56 On another occasion: "This great northland of ours is not ours because57it is coloured red on a map. It will only be ours by effective occupation." Few Canadian policies have been so inconsistently or unhappily interpreted over the years as that pertaining to the Arctic frontiers. The most recent statements indicate that Canada now relies in the last instance upon effective occupation. What then of the sector theory? Is it, as regards Canada, only a myth? Or was it once a part of Canadian policy which has now fulfilled its purpose and has disappeared in the wake of increased civilization in the Arctic? Whatever its role, the sector principle must be viewed in the perspective of the total Canadian claim—a claim with broad foundations, a claim, according to the Canadian Government, which is consistent with the principles of international law. VV

Canada's claim to territorial sovereignty in the Arctic has many roots. Discovery, exploration, acquisition by treaty, effective occupation—all ingredients are present. Discovery and Acquisition A Canadian historian has written: "A careful examination of histories of exploring expeditions to and amongst the Arctic islands will clearly show that all except Axel Heiberg Island and the Ringnes Islands . . . were discovered and named by British explorers."58 Commencing with the voyage in 1497 of John Cabot's son Sebastian to the northern coast of Labrador under commission of King Henry VII, any historical account of Arctic North America contains little else but English names: Frobisher in 1576, Davis in 1585-7, Hudson in 1610, Baffin in 1615 and 1616. After a pause of almost two centuries, the assault on the North-west passage was renewed. In 1819-20 Perry reached Melville Island; in 1831 Ross discovered the north magnetic pole; in 1845 Franklin navigated Lancaster Sound before perishing in Franklin Straits in 1846. M'Clintock sledged 1,408 miles overland in 105 days. Finally, in 1858, McLure, by land and water, made the North-west passage. Following Confederation in 1867, the Canadian Government itself commissioned several Arctic explorations. By 1910 there had been eight such missions, the first three in 1884, 1885 and 1886. In 1909 Captain Bernier mounted a tablet on Melville Island inscribed:59 56 1958 57

Debates, House of Commons, Canada, vol. 2, p. 1979. Ibid., at 1989. Prime Minister Diefenbaker has since said, in a peripheral fashion, that: ". . . everything that could possibly be done should be done to assure that our sovereignty to the North Pole be asserted, and continually asserted, by Canada."—1958 Debates, House of Commons, Canada, vol. 4, p. 3652. 58 Johnston, "Canada's Title to the Arctic Islands" (1933) 14 Canadian Historical Rev. 24, at 25. 59 See 1909-10 Debates, House of Commons, Canada, vol. 1, p. 1730.



Winter Harbour, Melville Island C.G.S. 'Arctic', July 1, 1909. This memorial is erected today to commemorate the taking possession for the Dominion of Canada of the whole Arctic archipelago lying to the north of America from longitude 60° W. to 141° W. up to the latitude of 90° N. J. E. Bernier, Commander.

Steffanson was in the north from 1913 to 1918. In 1944, the Royal Canadian Mounted Police schooner 'St. Roch' navigated the North-west passage ill a single season for the first time.60 What it did not discover, the Canadian nation acquired by purchase and treaty. The Treaty of Paris, 1763,61 ceded to Great Britain all of France's possessions in North America except the islands of St. Pierre and Miquelon. The boundary between British North America and Russian Alaska was fixed by treaty in 1825.62 The northern boundary remained undeclared, however, even following Confederation. The Government of the new Dominion of Canada passed an Order-in-Council dated 30 April 1875 requesting the transfer from the United Kingdom of all the lands to the north of the Dominion. This was followed by a joint address to Her Majesty the Queen from the Senate and House of Commons of Canada on 3 May 1878. After expressing the doubtful status of the northern boundary, the address continued:63 That, to avoid all doubt in the matter, it is desirable that an Act of the Parliament of the United Kingdom of Great Britain and Ireland should be passed defining the North-Easterly, Northerly, and North-Westerly Boundaries of Canada, as follows, that is to say: On the East by the Atlantic Ocean, which boundary shall extend towards the North by Davis Strait, Baffin's Bay, Smith's Straits and Kennedy Channel, including all the islands in and adjacent thereto, which belong to Great Britain by right of discovery or otherwise; on the North the Boundary shall be so extended as to include the entire continent to the Arctic Ocean, and all the islands in the same westward to the one hundred and forty-first meridian west of Greenwich; and on the North West by the United States Territory of Alaska. "The Voyage of the St. Roch through the Northwest Passage— 1941-42," at (1944) 4 The Polar Record 115 (The Scott Polar Research Institute, Cambridge University); Wordie, "The Voyage of the St. Roch through the Northwest Passage— 1944," at (1945) 4 The Polar Record 259.

"Under international customary law and the Charter of the United Nations, sovereign States are free to manufacture and possess any type of weapon. This applies even to arms the use of which—as with the BCR (biological, chemical and radiological) weapons—is, in principle, prohibited by the laws and customs of war; for, by way of reprisal, the use of even illegal weapons may be lawful. Similarly, sovereign States are free to test such weapons in their own territories, on the high seas, in the atmosphere above their own territories and the high seas, and in outer space. Any harm inflicted by such tests on persons or property of foreign nationals is, however, an international tort and involves the duty to make reparation. "As an illustration of current international law-making, the Test-Ban Treaty of 1963 deserves attention on three grounds: "First, it provides striking evidence of the extreme hesitation of the Parties to limit irrevocably the unfettered exercise of their sovereignty in politically sensitive matters. Thus, each of the Parties reserves to itself the right to withdraw from the Treaty 'if it decides that extraordinary events, related to the subject-matter of this Treaty, have jeopardised the supreme interests of its country.' "Secondly, the Treaty stops short of prohibiting nuclear tests underground. One of the reasons is probably that both the United States and the Soviet Union still desire to improve their "smaller" nuclear weapons. Moreover, at this point, breaches of the Treaty would cease to be self-revealing, and the Parties would have had to agree on the minimum of verification required to distinguish between seismological disturbances and illegal nuclear explosions.



"Thirdly, the solution adopted regarding other eligible parties to a treaty which is to have universal scope elegantly shelves a fundamental problem. The Treaty is open to signature and accession by 'any State,' with each of the three original Parties acting as a depositary government. "The only question left open—as in Article 35(2) of the Charter of the United Nations—is what is a State in the meaning of the Treaty. The common intention of the Contracting Parties was to skirt the issue of the eligibility of States which some of them refuse to recognise. They, therefore, resigned themselves to leaving it with each depositary government, for purposes of Article 3 of the Treaty, to regard as a State any entity it considers to be a State. "While no unilateral qualification by one depositary government can commit either of the other two, they cannot have it both ways. Each depositary government may decide for itself whether it is prepared to regard an entity as a State. Yet, if a depositary government refuses to treat any particular entity as a State for purposes of the Treaty, it must accept the implication of its own decision and cannot claim that the Treaty imposes any obligations on such a 'non-State.' It is entitled to take this line, but it does so at the risk of jeopardising the objects of the Treaty. If however, it intends such an entity to be bound by the Treaty, it treats the 'non-State'—at least for purposes of the Treaty—as a direct addressee of rights and duties under international law, that is to say, as a subject of international law. This applies as much to the attitude taken over this Treaty by the two Western depositary Governments towards the so-called German Democratic Republic (East Germany) as to that of the Soviet Union towards the so-called National Republic of China (Formosa)." Note that in the last twenty years armed conflicts have often arisen without any declared status of war being involved (e.g., the conflicts in Korea (China v. United States of America and United Nations), in Egypt (Egypt v. France, Israel, United Kingdom), in New Guinea (Holland v. Indonesia), in India (Portugal v. India, India v. China), and in North Africa (Morocco v. Algeria). In these instances there was no state of war but a state of conflict. Actually the United Nations Charter does not speak of war but of threat to the peace, breach of the peace, or act of aggression (article 39). As Mr. Starke, op. cit., p. 395, points out, there must now be distinguished "(1) a war proper between States, (2) armed conflicts or breaches of the peace, which are not of the character of war, and which are not necessarily confined to hostilities involving States only." Note also that a state of war may be established between two or more States by a formal declaration of war, although active hostilities may never take place between them. Mr. Starke comes to the conclusion that "the question whether there is a status of war or only a condition of 'non-war' hostilities depends on: (a) the dimensions of the conflict; (b) the intentions of the contestants; and (c) the attitudes and reactions of the non-contestants" (at p. 397). It would seem that, in general, the laws of war apply equally to war proper and to non-war hostilities. Note however, that "war" is a technical and legal concept and that one State may still be at war with another although the latter is no longer able to continue hostilities. ii) Canadian legislation

THE WAR MEASURES ACT R.S.C., 1952, c. 288 EVIDENCE OF WAR 2. The issue of a proclamation by Her Majesty, or under the authority of the Governor in Council shall be conclusive evidence that war, invasion, or insurrection, real be apprehended, exists and has existed for any period of time therein stated, and of its continuance, until by the issue of a further proclamation it is declared that the war, invasion or insurrection no longer exists.



POWERS OF THE GOVERNOR IN COUNCIL 3. (1) The Governor in Council may do and authorize such acts and things, and make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say: (a) censorship and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication; (b) arrest, detention, exclusion and deportation; (c) control of the harbours, ports and territorial waters of Canada and the movements of vessels; (d) transportation by land, air, or water and the control of the transport of persons and things; (e) trading, exportation, importation, production and manufacture; (f) appropriation, control, forfeiture and disposition of property and of the use thereof. (2) All orders and regulations made under this section shall have the force of law, and shall be enforced in such manner and by such courts, officers and authorities as the Governor in Council may prescribe, and may be varied, extended or revoked by any subsequent order or regulation; but if any order or regulation is varied, extended or revoked, neither the previous operation thereof nor anything duly done thereunder, shall be affected thereby, nor shall any right, privilege, obligation or liability acquired, accrued, accruing or incurred thereunder be affected by such variation, extension or revocation. 4. The Governor in Council may prescribe the penalties that may be imposed for violations of orders and regulations made under this Act, and may also prescribe whether such penalties shall be imposed upon summary conviction or upon indictment, but no such penalty shall exceed a fine of five thousand dollars or imprisonment for any term not exceeding five years, or both fine and imprisonment. 5. No person who is held for deportation under this Act or under any regulation made thereunder, or is under arrest or detention as an alien enemy, or upon suspicion that he is an alien enemy, or to prevent his departure from Canada, shall be released upon bail or otherwise discharged or tried, without the consent of the Minister of Justice. 6. (1) Sections 3, 4 and 5 shall come into force only upon the issue of a proclamation of the Governor in Council declaring that war, invasion or insurrection, real or apprehended, exists.... PROCEDURE 7. Whenever any property or the use thereof has been appropriated by Her Majesty under the provisions of this Act, or any order in council, order or regulation made thereunder, and compensation is to be made therefor and has not be agreed upon, the claim shall be referred by the Minister of Justice to the Exchequer Court, or to a superior or county court of the province within which the claim arises, or to a judge of any such court. 8. Any ship or vessel used or moved, or any goods, wares or merchandise dealt with, contrary to any order or regulation made under this Act, may be seized and detained and shall be liable to forfeiture, at the instance



of the Minister of Justice, upon proceedings in the Exchequer Court of Canada or in any superior court. 9. Every court mentioned in the two sections last preceding may make rules governing the procedure upon any reference made to, or proceedings taken before, such court or a judge thereof under the said sections. See also the United Nations Act R.S.C., 1952, c. 275, supra, p. 1054; and the National Defence Act, R.S.C., 1952, c. 184 as am. and the Canadian Bill of Rights, S.C., 1960, c. 44, s. 6. iii) International legislation The most important developments of the laws of war took place through the following general treaties (see II Malloy 2035 et seq.): The Declaration of Paris of April 16, 1856, respecting warfare on sea. The Geneva Convention of August 22, 1864, for the amelioration of the condition of wounded soldiers in armies in the field. A new Geneva Convention was signed on July 6, 1906. Its principles were adapted to maritime warfare by conventions of the First and Second Hague Peace Conferences. The Declaration of St. Petersburg of December 11, 1868, respecting the prohibition of the use in war of projectiles under 400 grammes which are either explosive or charged with inflammable substances. The Convention Enacting Regulations Respecting the Laws and Custom of War on Land, agreed upon at the First Peace Conference of 1899. (The Second Peace Conference of 1907 revised this Convention.) The Hague Declaration of July 29, 1899, concerning expanding bullets. The Hague Declaration of July 29, 1899, and October 18, 1907 concerning projectiles and explosives launched from balloons. The Hague Declaration of July 29, 1899 concerning projectiles diffusing asphyxiating or deleterious gases. The Hague Convention of 1907 for the adaptation to maritime warfare of the principles of the 1864 Geneva Convention, produced by the First and revised by the Second Peace Conference. The Hague Convention of 1907 concerning the opening of hostilities. The Hague Convention of 1907 concerning the status of enemy merchantmen at the outbreak of hostilities. The Hague Convention of 1907 concerning the conversion of merchantmen into men-of-war. The Hague Convention of 1907 concerning the laying of automatic submarine contact mines. The Hague Convention of 1907 concerning bombardment by naval forces in time of war. The Hague Convention of 1907 concerning certain restrictions on the exercise of the right of capture in naval war. The Two Hague Conventions of 1907 concerning the rights and duties of neutral powers and persons in land warfare and in sea warfare. The Protocol of 1925 concerning the use in war of asphyxiating, poisonous, and other gases. The Geneva Conventions of 1929 concerning the treatment of sick and wounded and of prisoners of war. The London Protocol of 1936 relating to the use of submarines against merchant vessels. The Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 U.N.T.S. 31. The Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85. The Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135. The Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287. See The Geneva Conventions Act, Bill s. 25, as passed by the Senate on June 3, 1964, now S.C., 1964, c. 44. Canada is bound by some of these conventions.



2) Declaration of War Formal declarations of war are no longer used today, although the Hague Convention III of 1907 Relative to the Opening of Hostilities requires an explicit notice before commencing hostilities. In Canada, see J. S. Ewart, Canada and War (1932), 10 Can. Bar Rev. 495. The Brig Dart Canada: Court of Vice-Admiralty, Halifax, N.S. (1812) Stewart p. 301 DR. CROKE: This American vessel was seized by the collector of the customs in the port of Halifax, on June 7, for an importation into Nova Scotia, contrary to law. Since that period, namely on June 20, the government of the United States, by a public instrument, has declared war against Great Britain. In consequence of this event, before the Court can consider the question of importation, there are two more material points to determine. By the declaration of war, it is said, that the claimants are become enemies, and the ship and cargo enemy's property/That not only the parties therefore are disqualified from appearing in British court of justice, but that the seizor is entitled to retain the ship and cargo, of which he has the bona fide possession, by the title of occupancy, as belonging to an alien enemy. Here are therefore three questions to consider, first, whether by the declaration of war on the part of the United States, without any declaration made by Great Britain, American subjects are become enemies, and, secondly and thirdly, supposing them to be enemies, whether nevertheless such consequences as are alleged by the captors would attach upon their property and persons in the present case. What shall constitute a state of war between two countries has been often debated, and the doctrines which have been laid down in our English law books may seem at first sight to be at variance with each other. If we look at the older authorities, we find it to be an established maxim, that no war can subsist without the concurrence of the king, that if all the subjects of England should make war with a king in league with the King of England, without the royal assent, such war is no breach of the league (4 Inst. 152). "That is a time of hostility," said Lord Chief Justice Hale (Hargrave's Tracts, vol. i., p. 245), "when war is proclaimed by the king against a foreign prince or state. This and this only renders them enemies" It is not however to be understood to be necessary that war should be solemnly declared by the King of England. If a war de facto subsists between Great Britain and any other country, without a regular declaration, the subjects of that country would be alien enemies. But I apprehend that where there is no express declaration of war, the hostilities exercised on the part of Great Britain must be sanctioned by the sovereign, or there must be some acts, or other proceedings, which show his intention of placing the country in a state of hostility in respect to any given Country. If not an express declaration, there must be something equivalent to it. Whatever declarations of war therefore may be made by foreign powers, whatever hostile acts may be committed by them, or whatever means may be adopted to repel them by the sole authority of the subjects in virtue of the right of self-defense, the state of mutual and reciprocal hostilities between any country and the British dominions cannot legally commence till the king, in whom solely the power of peace and war is vested, either by express declaration, or by some other manifestation of his hostile intentions, such as having recourse



to arms, has placed his dominions in a state of warfare. When such manifestation is made, and not before, the complete legal state of hostilities exists, with all its consequences, and since, the moment a man becomes an enemy, all his antecedent rights are annihilated, it must of course operate upon all preceding transactions. None of the cases which have been cited are inconsistent with this doctrine. In the case of the Noyade (Rob. iv. 253), in the High Court of Admiralty, where it was said that it was not necessary that both countries should declare war, there was proof that though Portugal had not declared war in form, yet war actually subsisted on both sides, and a French agent of prisoners was resident in Portugal. In the Benighted (Rob. i. 210), the Fortune (ibid.), and other cases in the courts of prize, and in the case of Oom v. Bruce in the king's bench, reported in East, vol. xii. p. 225, in all those cases actual war on the part of Great Britain had followed the declaration, and the acts of the enemy, and the intermediate time had retrospectively acquired an hostile character. The old doctrine of the English lawyers has never yet that I know of been considered as superseded by any more modern decisions. What measures will be taken by the British government in consequence of the declaration of war by the United States, and whether any corresponding declaration may be made, or hostilities commenced, has not been ascertained. But most certainly no authority to detain, or condemn, American property has been transmitted to this Court. Till some signification of his Majesty's intention has been made, I cannot consider the subjects of America as alien enemies, to every purpose of law; I cannot absolutely say that there are disqualified from appearing in a British court of justice, or that their property is liable to be treated as enemy's property, without a sanction from the British government. They may possibly be declared to be enemies in future, but their present situation is ambiguous. Whilst this uncertainty continues, the Court cannot reject the claim of the parties, or condemn their property. Neither in this state of semi-hostilities with the United States, would it think itself justified in restoring goods, which may have been already declared to be the property of an enemy. If the whole of this case turned therefore upon this point, I should direct it to stand over till His Majesty's instructions have been received from England. But it may not be necessary either to decide this point, or to wait for instructions. Even taking it for granted that the subjects of the United States have now fully acquired an hostile character, it may still be questioned whether this ship was seized under such circumstances as would render it liable to confiscation, on account of hostilities, or whether the claimants would be disqualified from appearing here. The ship entered this port and was seized before the declaration of war by the United States. They have ever since been in the custody of the officers of this Court, under a detention which on the part of the owners was involuntary. It was found in the country therefore in time of peace, and at the commencement of the war. Whether we consult the writers upon the law of nations, or the municipal laws of this country, the person and effects of an enemy so situated cannot be detained. Proceedings of this nature, which arise out of a state of hostility, are to be governed by the law of nations. That law, in cases to which it applies, is part of the law of England. Whatever might formerly have been the case, it is now settled as an established principle of public law, as it is stated by Vattel (Jenk, 201, pi. 22). "That a sovereign cannot retain the subjects, or the effects of the enemy which are found within his dominions at the commencement of a war, that they come upon the public



faith, and the sovereign by permitting them to enter has tacitly promised the liberty of returning in safety." In the British law, it was provided as early as Magna Charta, that "if merchants are of a land making war against us, and such be found in our realm at the beginning of the wars, they shall be attached without harm of body or goods until it be known, how our merchants be intreated there, in the land making war against us, and if our merchants be well intreated there, theirs shall be likewise with us." In the statute of the Staple, 27th Edward III, c. 17. "In case of war, merchant strangers shall have free liberty to depart the realm with their goods freely." It was more recently resolved by all the judges "that if a Frenchman brings goods into England before war proclaimed, neither his person or his goods can be seized." (Law of Nations, B. iii., ch. iv., § 36.) The same doctrine may be traced through the whole current of legal authorities to the present time. It being clear then that this ship was not liable to be seized on account of the commencement of hostilities if it had been lying in the port in the usual course of commerce, the situation cannot be made worse by the seizure of the collector. If indeed the seizure should prove upon the trial to have been made upon good grounds, the vessel would have been liable to forfeiture, for a breach of the law, even if peace had continued; but if the seizure should prove to have been made without reason, the parties would be entitled to have their property restored in the same state in which it was at the time of seizure. If the seizure was improperly made, the owners by such tortious possession cannot be injured in their rights. The seizor can gain no additional advantages from such a possession. If the parties were not guilty of a breach of the laws, they were innocent, and their coming into this port was a lawful entry. The seizure cannot make it otherwise. No advantage can be taken of the delay, because it was not the act of the owners but compulsory. The question of the breach of the revenue laws, and the right of seizing the property of an enemy are perfectly distinct. The collector cannot say, "It is true I seized this vessel for controverting the British laws, but I will now retain it as enemy's property," because he had no original right whatever to seize it as enemy's property. If not to seize neither can he have any right to retain. It is however said, that if the owner is become an alien enemy he cannot appear as a party in this Court to claim his property. I know that there is no doctrine more certain than that an alien enemy cannot appear as a party in a British court of justice. Whatever doubts might have before prevailed from the cases of Ricord and Betenham (Burrow, 3), of Cornu and Blackburne (Doug., 619), and other cases, it seems now indisputably settled by the case of Brandon v. Nesbit (6 T.R., 23), that no action for, or in favor of, an enemy can be maintained. But to this rule there are many exceptions. Whenever an alien enemy is under the king's protection the disability is removed. If he comes under a safe conduct, if he is a captive or a prisoner of war, if he comes before a war, and continues by the king's leave, either express or tacitly, he may sue his bond or contract (Wells v. Williams, Lord Raymond, 1, 282). It is true that all these cases suppose the alien to be commorant here, and not abiding in his own country, and that those privileges are allowed him in consequence of the protection afforded to his person; but the same principles will apply with equal force to every case where his property is protected. If property belonging to an alien enemy, which is found here at the commencement of a war, cannot be seized, it is under the protection of the law. With respect to such property the owner is in league and amity, and



in the king's peace; as far as that property is concerned he is not an enemy. But if his property is thus under the protection of the law, how is that protection to be extended to it but by the intervention of courts of justice? If the owners cannot apply there for redress, whenever their rights in such property are infringed, the protection is a mere name. To tell foreign merchants, "your ships and goods it is true cannot be seized, but if they are seized you cannot institute a suit in law to recover them, if they are prosecuted criminally you cannot appear to defend them," would be a mockery upon justice itself. It would be a palpable violation of the law of nations, .and of the public faith. Accordingly we find, that, in the High Court of Admiralty, alien enemies, though resident in the enemy's country, are allowed to claim vessels and cargoes which are protected by license, which are employed as cartels, or which come under flags of truce, or safe conducts. Licenses indeed are an express authority from His Majesty, but the other cases depend upon the general law, and upon common usage, they therefore prove fully, that where the property of an enemy is protected, his residence in an hostile country does not disqualify him from becoming a party in a British court of justice, and that the protection granted to his property gives him quoad Hoc a persona standi in judicio. The decision of the courts of common law, where it was held that foreigners so resident could not appear, related to contracts which were merely of a peaceable nature, and had no reference to the state of war, such as insurances. But the protection claimed by alien enemies for property found at the commencement of a war, is a right founded in the laws of war itself, a right given them by the universal practice of all nations, and of the British law; in consequence of, and with relation to war itself, such rights are not affected by the existence of a state of war. I conceive that this claim may be supported upon these broad and liberal grounds, but if mere matter of form were still required to give a color to it, it might be observed, that the claim is in reality given, not by the alien enemy himself, though ultimately for his benefit, but by the master of the vessel, who, as being actually in the country, and bound to a local allegiance, is entitled to all the privileges of suing in the king's courts. Whether this might be sufficient to satisfy the strict rules of law, I scarcely think it necessary to inquire. I am of opinion therefore that whether the subjects of the United States are: to be considered as enemies, or otherwise, this property is not liable to seizure on account of the intervention of hostilities, and that the claimants are not disqualified from appearing as parties in this Court. I admit the claim therefore, and direct this case to be proceeded in upon the principal questions. 3) Land, Maritime, and Air Warfare Great Britain (Eastern Extension, Australasia & China Telegraph Co. Claim) v. United States United States Great Britain Claims Arbitration, 1923 Nielsen's Report, p. 73 THE TRIBUNAL (FROMAGEOT, INNES, OLDS) : This is a claim presented by His Britannic Majesty's Government on behalf of the Eastern Extension, Australasia and China Telegraph Company, Limited, a British corporation, for a sum of £912 5s. 6d., being the amount which this company had to



expend upon the repair of the Manila-Hong Kong and the Manila-Gapiz submarine telegraph cables which had been cut by the United States naval authorities during the Spanish-American war in 1898. . . . Under concessions granted by the Spanish Government and dated, respectively, December 14, 1878, and April 14, 1897, the Eastern Extension Company had laid down certain submarine telegraph cables connecting Manila and Hong Kong and Manila and Capiz,, which the Company was operating in 1898. In April, 1898, war broke out between the United States and Spain, and on May 1, 1898, the United States naval forces, under the command of Commodore, afterwards Admiral, Dewey, entered Manila Bay and destroyed or captured the Spanish warships lying in that harbour. On the same day (United States Answer, p. 14, Exhibit 5) Commodore Dewey, through the British consul at Manila, proposed to the Spanish Captain General that both the United States and the Spanish authorities should be allowed to transmit messages by cable to Hong KongI That proposition having been refused, on the morning of the following day, viz., on May 2, 1898, the Manila-Hong Kong cable was cut by order of the American Commodore, this cutting being effected within Manila Bay and consequently within the territorial waters of the enemy. On May 10 the Company, acting on a formal order of the Spanish Government under the provisions of the concession above referred to, sealed the end of the cable at Hong Kong, thereby preventing any use of the cable by the United States forces. Subsequently, the United States Navy Department proposed to the Company to re-establish cable communication between Manila and Hong Kong, and the Company refused, informing the American Navy Department that the Company was under the order of the Spanish Government and that the transmission of messages from the Philippine Islands to Hong Kong had been prohibited by that Government (United States Answer, p. 12, Exhibit 2). Furthermore, as appears from the oral argument on behalf of His Britannic Majesty's Government (Notes of the llth Sitting, p. 251), the British Government themselves, acting in the interest of shipping, subsequently asked the Madrid Government if they would consent to the reopening of the cables; but the Spanish Government refused to accede to this request, except on terms which the United States could not accept. On May 23 the Manila-Capiz cable was cut, also inside Manila Bay. These facts are not contested; and further it is admitted on behalf of Great Britain that the severance of the cable between Manila and Hong Kong, as well as between Manila and Capiz, was a proper military measure on the part of the United States, taken with the important object of interrupting communication whether with other parts of the Spanish possessions in the Philippine Islands or with the Spanish Government and the outside world. The question is whether or not the United States Government is bound to pay to the Company, as damages, the cost incurred by the Company in repairing the cables. The British Government admits that there was not in existence in 1898 any treaty or any rule of international law imposing on the United States the legal obligation to pay compensation for the cutting of these cables; but they contend that, under article 7 of the Special Agreement establishing this Tribunal, such compensation may be awarded on the ground of equity, and that the United States Government, having paid compensation to some other foreign cable company for similar cuttings during the same war, is,



therefore, legally bound to compensate the British Company, and, finally, that in the absence of any rule of international law on the point, it is within the powers, if it be not the duty, of this Tribunal to lay down such a rule. The United States Government contends that the cutting of the cables by its naval authorities was a necessity of war giving rise to no obligation to make compensation therefor; that the United States were entitled to treat the said cables as having the character of enemy property, on the ground that their terminals were within enemy territory and under the control of the enemy's military authorities, and that the sealing of the terminal at Hong Kong, on neutral territory, was a hostile act of itself impressing this cable with enemy character. Further, the United States Government contends that there is no rule of international law imposing any legal liability on the United States, but that, on the contrary, the action of the United States naval authorities and the refusal to pay compensation are justified by international law and that the United States Government is not bound to pay compensation to the British Company merely because more favourable treatment was meted out to another foreign company, the facts underlying whose claim were, in any case, different. Further, the United States Government say that it is not the duty, nor within the power, of this Tribunal to lay down any new rule of international law, but only to construe and apply such rules or principles as existed at the time of the cutting of these cables. It may be said that article 15 of the International Convention for the Protection of Submarine Cables of 1884, enunciating the principle of the freedom of Governments in time of war, had thereby recognised that there was no special limitation, by way of obligatory compensation or otherwise, to their right of dealing with submarine cables in time of war. In our opinion, however, even assuming that there was in 1898 no treaty and no specific rule of international law formulated as the expression of a universally recognised rule governing the case of the cutting of cables by belligerents, it can not be said that there is no principle of international law applicable. International law, as well as domestic law, may not contain, and generally does not contain, express rules decisive of particular cases; but the function of jurisprudence is to resolve the conflict of opposing rights and interests by applying, in default of any specific provision of law, the corollaries of general principles, and so to find—exactly as in the mathematical sciences—the solution of the problem. This is the method of jurisprudence; it is the method by which the law has been gradually evolved in every country resulting in the definition and settlement of legal relations as well between States as between private individuals. Now, it is almost unnecessary to recall that principle of international law which recognises that the legitimate object of sea warfare is to deprive the enemy of those means of communication, which the high seas, in their character as res nullius or res communis afford to every nation. The user by the enemy of that communication by sea, every belligerent, if he can, is entitled to prevent, subject to a due respect for innocent neutral trade; he is even entitled to prevent its user by neutrals, who use it to afford assistance to the enemy either by carrying contraband, by communicating with blockaded coasts, or by transporting hostile despatches, troops, enemy agents, and so on. In such cases the neutrals do not, properly speaking, lose their neutral character; but their action itself loses that character, such action being, as it is said, impressed with a hostile character. Thus it may be said that a belligerent's principal object in maritime warfare is to deprive



the enemy of communication over the high seas while preserving it unimpeded for himself. It is difficult to contend in the same breath that a belligerent is justified by international law in depriving the enemy of the benefit of the freedom of the high seas, but is not justified in depriving him of the use of the seas by means of telegraphic cables. . . . As to the contention that, having regard to the terms of article 7 of the Special Agreement providing for the settlement of these claims, this Tribunal is to decide "in accordance with treaty rights and with the principles of international law and of equity," compensation in this case should be paid on the ground of equity, the following observations may be made: If the strict application of a treaty or of a specific rule of international law conduct to a decision which, however, justified from a strictly legal point of view, will result in hardship, unjustified having regard to the special circumstances of the case, then it is the duty of this Tribunal to do their best to avoid such a result, so far as it may be possible, by recommending for instance some course of action by way of grace on the part of the respondent Government. In this case it is to be observed that the Eastern Extension Company was well aware of its own risk in Spanish territory. As has been shown, their concessions expressly provided for it. The various advantages, privileges, exemptions, and subsidies accorded them by the Spanish Government, form the consideration in exchange for which the Company assumed the risk of being treated in time of war as a Spanish public service with all the consequences which that position implied. In the opinion of this Tribunal, there is no ground of equity, upon which the United States should be adjudged to pay compensation for the materialization of this risk in the form of an act of war the legitimacy of which is admitted. The British Government contend that, as a matter of right, the Eastern Extension Company is entitled to receive compensation because some other foreign cable company, viz., La Compagnie Franchise des Cables Telegraphiques, working cables between the United States of America, Haiti, and Cuba, received from the United States Government compensation for the cutting of its cables. It is urged that, when acts of war by a belligerent have resulted in personal injury to individuals in certain territory or in damage to their property in that territory, if the Government of that territory pays the claims of the nationals of one country, it must also pay the claims of the nationals of other countries without discrimination (Oral Argument, pp. 261 and 262); and further, as the argument would seem to imply (Oral Argument, p. 264), that, if it be established that a Government has paid compensation to its own citizens, then it is bound to pay compensation to foreigners whose person or property was damaged; and authority is said to be found for the last proposition in cases arising out of the Mexican insurrection. Whether viewed as a general principle, or in its particular application to the facts of this claim, such a proposition appears to us to be impossible of acceptance. It is perfectly legitimate for a Government, in the absence of any special agreement to the contrary, to afford to subjects of any particular Government treatment which is refused to the subjects of other Governments, or to reserve to its own subjects treatment which is not afforded to foreigners. Some political motive, some service rendered, some



traditional bond of friendship, some reciprocal treatment in the past or in the present, may furnish the ground for discrimination. . . . As to the contention of the British Government that, in the absence of any rule governing the matter of cable cutting, it is the duty of this Tribunal to frame a new rule, we desire to say: First, the duty of this Tribunal, in our opinion, under article 7 of the Special Agreement, is not to lay down new rules. Such rules could not have retroactive effect, nor could they be considered as being anything more than a personal expression of opinion by members of a particular tribunal deriving its authority from only two Governments; Secondly, in any case this Tribunal, as has been already stated, is of opinion that the principles of international law, applicable to maritime warfare, existing in 1898, are sufficient to enable us to decide this case. Now therefore: The Tribunal decides that the claim of His Britannic Majesty's Government be disallowed. The Pellworm Great Britain: Privy Council [1922] 1 A.C. 292 (Reported infra p. 1215.) NOTES As to requisition, see Cantieri Riunti Dell'Adriatico Di Monfalcone v. Gdynia Ameryka Linje Zeglugowe Spolka Akcyjna, [1940] 1 D.L.R. 102, 15 M.P.R. 213 (N.S.). In general see the Hague Convention IV of 1907 and Regulations. See also the Foreign Enlistment Act, R.S.C., 1952, c. 124, infra p. 1225.

The Zodiak Canada: Court of Vice-Admiralty at Halifax, Nova Scotia (1812) Stewart, p. 333 Summary. The facts of the case were that His Majesty's schooner, the Alphea, while travelling under a flag of truce, seized an American vessel, the Zodiak, and brought it in for condemnation. DR. CROKE: . . . Under facts so clearly proved, this case becomes subject to the application of those principles of public law which relate to captures made by vessels having a passport, or safe conduct. What these are in general, is so well, and so commonly understood, that it is scarcely necessary to enter into any long discussion concerning them. No officer in his Majesty's service can be ignorant of them. It is universally known that, by passports, privileges are granted by nations at war to particular ships, for their mutual convenience. They are highly useful, since they contribute to soften the severities of war, and to promote the restoration of peace. They are therefore observed by all civilized nations with scrupulous delicacy and correctness. They are certainly in the nature of compacts, because there is something to be done, or submitted to on both sides, and one nation cannot, by any acts, bind another, without its own consent. They may be therefore, and frequently are, the subject of treaties, which must then be punctually observed. But it is not necessary that there should be any express agreement between the two nations in question, much less any particular contract entered into with the persons immediately concerned. They are founded upon a compact of which the terms are partly



expressed, and partly understood from general usage, and they depend upon the established conventional law of nations. To a vessel thus employed, in a communication between the two countries, with a passport, protection from capture is granted by the one nation, and the other engages that the vessel employed shall abstain from all acts of hostility. These must be the conditions necessarily understood, for otherwise such vessels would thereby be only enabled, under the protection, to annoy more effectually the protecting country, and without those conditions, understood or expressed, no passports would ever be granted, and nations at war would lose the benefit derived from them. Since then to effect the intended object the privileges must be mutual, as far as the vessel bearing a passport, and all vessels which she may encounter, are concerned, all rights of war must be suspended, and a partial state of peace must reciprocally exist. In case of a violation of these privileges there must be the same mode of redress on one side, as on the other. If a cartel, or a flag of truce is taken, it is admitted that they may be restored by a Court of Admiralty, to an enemy claimant. If a vessel of that description should make a capture, the owners of the captured property would be entitled to the same remedy. A Court of Admiralty must be the proper tribunal in both cases, and the capacity of the claimant to obtain restitution is founded in each of them upon the same principles—a partial cessation of hostilities, and his being, quo ad hoc, in the King's peace. A capture then, made in breach of these conditions, is a wrong done to the party, and to his nation, and is a departure from the public faith. The laws of war are as sacred as those of peace, and in the execution of the delicate trust committed to this Court, of sitting in judgment between its own country, and every other nation in the world, it is its duty, with the most unbiased impartiality, to administer the same rule of justice to the enemy, as to the most friendly or allied nation. 4) Belligerent Occupation HAGUE CONVENTION IV, 1907 ANNEXED REGULATIONS Article 42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. Article 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Article 44. A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defence. Article 45. It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power. Article 46. Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated. Article 47. Pillage is formally forbidden. Article 48. If, in the territory occupied, the occupant collects the taxes,



dues and tolls imposed for the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound. Article 49. If, in addition to the taxes mentioned in the above Article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question. Article 50. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible. Article 51. No contribution shall be collected except under a written order, and on the responsibility of a Commander-in-Chief. The collection of the said contribution shall only be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force. For every contribution a receipt shall be given to the contributors. Article 52. Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country. Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied. Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible. Article 53. An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations. All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made. Article 54. Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made. Article 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct. Article 56. The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.



NOTES In N.V. De Bataafsche Petroleum Maatschappij v. The War Damage Commission (Singapore Oil Stocks) (Court of Appeal of Singapore) (1956), 22 Malayan L. J. 155, the court said in part: "I now proceed to consider whether the Japanese belligerent occupant had a right, under international law, to seize the crude oil in the ground and so deprive the appellants of their title to it. ... If such a right did exist . . . it was derived from Article 53 of the Hague Regulations. [Convention IV, 1907.] "[The] evidence establishes that the seizure of the appellants' oil installations in Sumatra by the invading army was carried out as part of a larger plan prepared by the Japanese State to secure the oil resurces of the Netherlands Indies, not merely for the purpose of meeting the requirements of an army of occupation but for the purpose of supplying the naval, military and civilian needs of Japan, both at home and abroad, during the course of the war against the Allied Powers. ". . . The next question . . . is whether seizure of private property on such a scale and for such purposes was contrary to the laws and customs of war. On this point there is, fortunately, considerable authority available from decisions arising out of the war in Europe. First, there is the decision of the Nuremberg Tribunal . . . in which the principle is laid down that to exploit the resources of occupied territories in pursuance of a deliberate design to further the general war of the belligerent without consideration of the local economy, is plunder and therefore a violation of the laws and customs of war.. .. "The present case is much stronger as the plunder of the appellants' property was committed not by Japanese industrialists but by the Japanese armed forces themselves, systematically and ruthlessly, throughout the whole period of the occupation. . . . The seizure and subsequent exploitation by the Japanese armed forces of the oil resources of the appellants in Sumatra was in violation of the laws and customs of war and consequently did not operate to transfer the appellants' title to the belligerent occupant. "The respondents are compelled to argue that crude oil in the ground, although a raw material, is susceptible of direct military use or at least has a sufficiently close connection with direct military use to bring it within Article 53. ... Elaborate installations and civilian technicians were needed by the army to enable them to appropriate this oil and prepare for use in their war machines. . . . In these circumstances, it cannot be said . . . that at the moment of its seizure in the ground, the oil had a sufficiently close connection with direct military use to bring it within the meaning of munitions-de-guerre in Article 53." With respect to the occupation of Germany by allied powers see: The Occupation of Germany (1945-1951) (1951), 3 External Affairs 333. 5) The Treatment of the Wounded and the Sick See The Geneva Convention of August 12, 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31; and for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, approved by the Geneva Conventions Act, Bill s. 25, as passed by the Senate, on June 3, 1964. For a commentary see J. S. Pictet (1952, 3 vols.). Until 1965 Canada adhered to the July 27, 1929 Geneva Convention (revised) for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 1933 Can. T.S. No. 6, 118 L.N.T.S. 303; 1942 Can. T.S. No. 6. Now see S.C. 1964-65, c. 44, based on Bill S-25. 6) Espionage See Fyfe, Some Legal Aspects of the Report of the Royal Commission on Espionage (1946), 24 Can. Bar Rev. 777; the Official Secrets Act,



R.S.C., 1952, c. 198, supra p. 644; and section 46 of the Criminal Code. For a case dealing with espionage in peace time, see Rose v. The King (1947), 88 Can. C. C. 114, supra', Cohen, Espionage and Immunity— Some Recent Problems and Developments (1948), 25 B.Y.B.I.L. 404. 7) The Regime of Prisoners of War Rex v. Brosig Canada: Ontario Court of Appeal [1945] 2D.L.R. 233 GILLANDERS J.A.: The respondent is a German prisoner of war, a paratrooper of the German Air Force, taken prisoner in Holland in 1942, transported first to England and later moved to Canada, where he has since been kept. On December 21, 1943, he secreted himself in a prisoner of war mail bag at the prisoner of war camp where he was detained. The mail bag was in due course placed with others in the mail car on a Canadian National train, its weight exciting comment but apparently not the suspicion of the railway mail clerks who moved it from place to place. The mail bag was finally placed close to a radiator in the mail car. Finally the accused, oppressed by heat and lack of fresh air, released himself from the bag by cutting it open with a knife which he had in his possession. After getting out of the bag in which he had concealed himself, he cut open another maU bag in the car and removed some parcels from it. He broke these parcels open and discovered a quantity of cigarettes, some gum, and a bottle of perfume. He smoked some of the cigarettes and used some of the gum and perfume. He was later apprehended and subsequently charged with theft from the mails. The charge was dismissed by the Magistrate before whom he came, and the Crown now appeals to this Court. Counsel for the Crown necessarily accepts and relies upon the facts found, but submits that the accused as a prisoner of war was, under the circumstances, subject to the complete restraint of the criminal law and that he should have been convicted of the offence charged. Counsel for the respondent submits that what the accused did were in fact acts which were part of or incidental to his escape and that such acts by a prisoner of war, that is those forming part of or incidental to his escape from the detaining Power, should be deemed to be acts of war rather than criminal offences. There is little definite authority in the decided cases. Counsel for the respondent draws attention to a question put by Lord Campbell, Chief Justice, in Reg. v. Saltier, Dears. & Bell 525 at p. 543: "A prisoner of war committing murder would be triable; but the question is, what constitutes murder? If a prisoner of war who had not given his parole killed a sentinel in endeavouring to effect his escape, would that be murder?" In discussing exceptions to the general rule that the criminal law applies to all persons who are within certain local limits, Mr. Justice Stephen in his work "The History of the Criminal Law of England", vol. 2, p. 8, after examining the few authorities then existing which referred to alien enemies and prisoners of war, expresses the view: "It is difficult to extract any definite proposition from these authorities as to the cases in which foreigners are liable to English criminal law, when they are brought, against their will, into places where that law is, as a general rule, administered. None of them, however, is inconsistent with, and



each of them more or less distinctly illustrates, the proposition that protection and allegiance are co-extensive, and that obedience to the law is not exacted in cases in which it is avowedly administered, not for the common benefit of the members of a community of which the alleged offender is for the time being a member, but for the benefit of a community of which he is an avowed and open enemy." It is material to consider the provisions of the convention relative to the treatment of prisoners of war concluded at Geneva on July 27, 1929. His Majesty the King and the President of the German Reich were parties to this convention and it was signed by plenipotentiaries for Canada. Section 5, c. 3, deals with penal sanctions with regard to prisoners of war. Without attempting to set out at length all the provisions of this chapter, the following may be observed: Article 45 provides: "Prisoners of war shall be subject to the laws, regulations, and orders in force in the armed forces of the detaining Power. "Any act of insubordination shall render them liable to the measures prescribed by such laws, regulations, and orders, except as otherwise provided in this Chapter." Article 46 provides: "Prisoners of war shall not be subjected by the military authorities or the tribunals of the detaining Power to penalties other than those which are prescribed for similar acts by members of the national forces." And further: "prisoners of war, undergoing disciplinary punishment shall not be subjected to treatment less favourable than that prescribed as regards the same punishment, for similar ranks in the armed forces of the detaining Power." "Article 47 provides, inter alia: "The judicial proceedings against a prisoner of war shall be conducted as quickly as circumstances will allow." This article later refers to the sentence "whether disciplinary or judicial, provided such deduction is permitted in case of members of the national forces." Article 48 provides in part: "After undergoing the judicial or disciplinary punishment which has been inflicted on them, prisoners of war shall not be treated differently from other prisoners." Article 50 provides in part: "Escaped prisoners of war who are re-captured before they have been able to rejoin their own armed forces or to leave the territory occupied by the armed forces which captured them shall be liable only to disciplinary punishment." Article 51 provides in part: "Attempted escape, even if it is not a first offence, shall not be considered as an aggravation of the offence in the event of the prisoner of war being brought before the courts for crimes or offences against persons or property committed in the course of such attempt." Article 52 provides: "Belligerents shall ensure that the competent authorities exercise the greatest leniency in considering the question whether an offence committed by a prisoner of war should be punished by disciplinary or by judicial measures. "This provision shall be observed in particular in appraising facts in connexion with escape or attempted escape.



"A prisoner shall not be punished more than once for the same act or on the same charge." Part 2 makes provisions respecting disciplinary punishments, and Part 3 is headed "Judicial Proceedings." This provides rules and requirements relating to judicial hearings of charges against prisoners of war, for notice being given of the name and rank of the prisoner; the place of detention, and statement of the charges to the protecting power; that no prisoner should be sentenced without an opportunity to defend himself; that no prisoner should be compelled to admit his guilt, and he has a right to a qualified advocate of his own choice, and if necessary, to a competent interpreter, and various other provisions aimed at safeguarding the rights of a prisoner of war in judicial proceedings. It is quite apparent that the convention anticipates judicial proceedings against prisoners of war, as well as disciplinary proceedings by military authorities. In view of the provisions of Article 45, it is of interest to keep in mind to what extent our own armed forces which in this case are those of the detaining Power, are subject to proceedings in the Courts. The question may be answered in the words of Sir Lyman P. Duff, Chief Justice of Canada, in Reference re Exemption of U.S. Forces from Canadian Criminal Law, [1943], 4 D.L.R. 11 at p. 14, S.C.R. 483 at p. 490, 80 Can. C.C 161 at p. 165: "My view can be stated very briefly. It is, I have no doubt, a fundamental constitutional principle, which is the law in all the Provinces of Canada, that the soldiers of the army of all ranks are not, by reason of their military character, exempt from the criminal jurisdiction of the civil (that is to say, non-military) courts of this country." In amplification of this view, the Chief Justice continues, later (pp. 15-6 D.L.R., pp. 490-1 S.C.R., pp. 165-7 Can. C.C.): "That is a well settled principle which has always been jealously guarded and maintained by the British people as one of the essential foundations of their constitutional liberties. I quote two passages on the subject—the first is from Dicey's 'Law of the Constitution', and the second is from Dr. Goodhart, the distinguished lawyer who is the successor of Maine and Pollock in the chair of jurisprudence at Oxford University and is the editor of the Law Quarterly Review; this passage is taken from an article written by Dr. Goodhart for the American Bar Association Journal for the information of American lawyers. At pp. 300-1 of Dicey it is stated: " 'A soldier's position as a citizen.—The fixed doctrine of English law is that a soldier, though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen. "Nothing in this Act contained" (so runs the first Mutiny Act) "shall extend or be construed to exempt any officer or soldier whatsoever from the ordinary process of law." These words contain the clue to all our legislation with regard to the standing army whilst employed in the United Kingdom. A soldier by his contract of enlistment undertakes many obligations in addition to the duties incumbent upon a civilian. But he does not escape from any of the duties of an ordinary British subject. " The results of this principle are traceable throughout the Mutiny Acts. " 'A soldier is subject to the same criminal liability as a civilian. He may when in the British dominions be put on trial before any competent "civil" (i.e. non-military) court for any offence for which he would be triable if he were not subject to military law, and there are certain offences, such as murder, for which he must in general be tried by a civil tribunal. Thus, if



a soldier murders a companion or robs a traveller whilst quartered in England or in Van Dieman's Land, his military character will not save him from standing in the dock on the charge of murder or theft.' "Referring to the legislation introduced in 1942 and passed by the Parliament of the United Kingdom, Dr. Goodhart says (American Bar Association Journal, vol. 28, p. 763): " 'The important constitutional principle which was involved is one of the essential ones on which the English constitution is based. It is described by Dicey as "the fixed doctrine of English law that a soldier, though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen." It is part—and perhaps the most important part—of the "rule of law" which is the distinctive feature of the British system. "It becomes, too, more and more apparent that the means by which the courts have maintained the law of the constitution have been the strict insistence upon the two principles, first of 'equality before the law,' which negatives exemption from the liabilities of ordinary citizens or from the jurisdiction of the ordinary courts, and, secondly, of 'personal responsibility of wrongdoers,' which excludes the notion that any breach of law on the part of a subordinate can be justified by the orders of his superiors." This means that the British soldier is subject to the jurisdiction of the ordinary courts, and is responsible to them for any breaches of the law which he may commit. So long as this principle is maintained, it will be impossible for anyone to establish a military dictatorship in Great Britain.' " There is nothing in the provisions of the Convention to exclude the application of the Criminal Code here. Counsel for the appellant urges that prisoners of war are subject to the complete restraint of the criminal law whether or not the acts in question are a part of or incidental to escape from the detaining Power. It is unnecessary and undesirable to express here an opinion as to what view should be taken under other circumstances, for instance, if a prisoner of war were accused of assaulting a military guard who endeavoured to prevent his escape. In this case the Magistrate has found as a fact: "With regard to the perfume, I have given him the benefit of the doubt and say that he used it in order to assist his escape by concealing the extreme odour of perspiration. With regard to the cigarettes and gum I am unable to see that they would assist his escape materially and I feel that he took them for his own comfort." I see no reason to disagree with the finding of fact that the taking of the cigarettes and gum from the mail bags was for personal comfort of the accused and not a part of or incidental to his escape. Under the circumstances he is liable to the restraint of the criminal law and to proceedings in the Court in the same way as a member of the armed forces of this country. The appeal must be allowed and a conviction recorded. As to sentence—the provisions of the Code with respect to such a charge have been recently amended so that now the minimum sentence is in the discretion of the Court. Counsel for the Crown suggests only a moderate sentence. Under the circumstances a sentence of two months should be imposed. Appeal allowed; accused convicted. ROBERTSON C.J.O.: While, no doubt a body of international law that has made great changes in the position of a prisoner of war, has developed



since the time when prisoners of war were put to death, and, as more humane notions prevailed, that practice gave way to that of making slaves of them, and, still later, of putting them to ransom, it is in comparatively recent times that arrangements came to be made between warring nations, for the exchange of prisoners between the States themselves. There does not, however, appear to be any rule of international law, apart from whatever the Conventions between States may provide, whereby prisoners of war are entitled to exemption from the municipal laws of the country where they are held prisoner. No doubt, cases will arise where it becomes a question whether the conduct of a prisoner of war is more properly to be regarded as a matter for military discipline, rather than for judicial proceedings as a breach of the criminal law. The question put by Lord Campbell in Reg. v. Saltier (1858), Dears. & Bell 525 at p. 543, 169 E.R. 1105, quoted by my brother Gillanders in his judgment in this case, may serve as an illustration. No such question arises in this case. The "looting" of the mail bag was not an act necessary for the escape of the prisoner of war. In my opinion it stands upon no different or higher footing that a similar act committed by a member of the armed forces of Canada. The act served no military purpose. It was an offence against the civil power for the personal advantage of the respondent. In view of the considerations that I have stated, it is, in my opinion, the duty of the Court to deal with the charge against the respondent in the same way as we would deal with a similar charge against a member of the armed forces of Canada. NOTES For a comment on this case see (1945), 23 Can. Bar Rev. 451. In Rex v. Krebs, [1943] 4 D.L.R. 553, 80 Can. C.C. 279 (Ont. Mag. Ct.) it was held that a prisoner of war who breaks and enters a dwelling house and steals a number of articles for the purpose of facilitating his escape from a military camp where he is interned or for the purpose of assisting him to preserve his liberty is not criminally responsible therefor. He is not punishable for anything he may reasonably do to escape or having escaped to preserve his liberty; on the other hand in Rex v. Shindler, [1944] 3 W.W.R. 125, 82 Can. C.C. 206 (Alta. Mag. Ct.) the opposite conclusion was reached although in this case the magistrate seemed to have treated the matter as one of jurisdiction of Canadian courts. He took the view that whatever may have been the position before the Geneva Convention of 1929 concerning the treatment of prisoners of war, the terms of the convention provided a sufficient basis of jurisdiction and that although after his escape the accused had stolen an automobile by means of which he sought to make good his escape, he was nevertheless guilty of theft and punishable. In Rex v. Kaehler the court approved the conviction of two prisoners of war on a charge of theft, taking also the position that acts done to facilitate escape are nevertheless punishable if they are criminal offences under Canadian law. Harvey J.A., speaking for the court, declared that the Geneva Convention of 1949 was a part of Canadian law and he concluded as follows: [1945] 3 D.L.R. 272, [1945] 1 W.W.R. 566, 82 Can. C.C. 353: "There is no justification for the view that at common law before the (Geneva) Convention relating to prisoners of war, there was any less criminal responsibility for the commission of an offence by a prisoner of war in attempting to escape because it was done to assist him in escaping, than for any offence unconnected with an attempt to escape and that there is therefore no justification for making any qualification of the general terms importing criminal liability in the Geneva Convention. Moreover as already stated, the liability to



punishment for such offences is clearly recognized by article 51." See (1945), 23 Can. Bar Rev. 524. In Rex v. Perzenowski, Rex v. Wolf, Rex v. Busch and Rex v. Mueller, 87 Can. C.C. 71, [1946] 3 W.W.R. 678, 3 Can. C.R. 254, [1947] 1 D.L.R. 705 (Alta. C.A.) the court held that Canadian civil courts have jurisdiction to try prisoners of war on a charge of murdering a fellow prisoner in a prisoner-ofwar camp in Canada. Note that section 128 of the Criminal Code provides that "Every one who knowingly and wilfully "(a) assists a prisoner of war in Canada to escape from a place where he is detained, or "(b) assists a prisoner of war, who is permitted to be at large on parole in Canada, to escape from the place where he is at large on parole, "is guilty of an indictable offence and is liable to imprisonment for five years." As to internment of enemy aliens see In re Gusetu (1915), 24 Can. C.C. 427 (Que. S.C.), where McLennan J., said in part: ". . . During the existence of the war the Courts should not be called upon to do anything which might in any way interfere with the actions of those specially charged with the safety of the country. Considerations of public welfare must override everything else. The registrar had jurisdiction to intern the petitioner and his judgment as to the necessity of the internment is not subject to review by the Courts without the consent of the Minister of Justice. It was so held by Meredith, C.J.C.P., in Re Beranek, 24 Can. Cr. Case. 252, 33 O.L.R. 139, and I concur in his interpretation of the law governing this matter. "Another fatal objection to the application is that no habeas corpus lies for an alien enemy who is a prisoner of war. On his own showing the petitioner is an alien enemy interned as a prisoner of war, because in the judgment of the authorities charged with the preservation of the security, defense, peace, order and welfare of Canada, it is not consistent with the public safety that he should be allowed at large. An alien enemy has no rights under the Common Law of England and the writ of habeas corpus is a prerogative writ by which the King has a right to inquire into the causes for which any of his subjects are deprived of their liberty: Halsbury's Law of England, vol. 1, par. 682; vol. 10, par. 90." GENEVA CONVENTION OF AUGUST 12, 1949, RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 75 U.N.T.S. 135 The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Convention concluded at Geneva on July 27, 1929, relative to the Treatment of Prisoners of War, have agreed as follows: Article 1. The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. Article 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said power, if the latter accepts and applies the provisions thereof. Article 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:



(1) Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the parties to the conflict. Article 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. B. The following shall likewise be treated as prisoners of war under the present Convention: (1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has origanially liberated them while



hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view of internment. (2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraphs, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which the Parties normally exercise in conformity with diplomatic and consular usage and treaties. C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention. Article 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. Article 7. Prisoners of war may in no circumstances renounce in part or in entirety the right secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be. Article 12. Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them. Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with. Article 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited. Article 14. Prisoners of war are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men.



Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires. Article 15. The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health. Article 16. Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria. Article 17. Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status. . . . No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be theatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. . . . Article 18. All effects and articles of personal use, except arms, horses, military equipment and military documents, shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like articles issued for personal protection. Effects and articles used for their clothing or feeding shall likewise remain in their possession, even if such effects and articles belong to their regulation military equipment. At no time should prisoners of war be without identity documents. The Detaining Power shall supply such documents to prisoners of war who possess none. Badges of rank and nationality, decorations and articles having above all a personal or sentimental value may not be taken from prisoners of war. Sums of money carried by prisoners of war may not be taken away from them except by order of an officer, and after the amount and particulars of the owner have been recorded in a special register and an itemized receipt has been given, legibly inscribed with the name, rank and unit of the person issuing the said receipt. Sums in the currency of the Detaining Power, or which are changed into such currency at the prisoners request, shall be placed to the credit of the prisoner's account as provided in Article 64. The Detaining Power may withdraw articles of value from prisoners of war only for reasons of security; when such articles are withdrawn, the procedure laid down for sums of money impounded shall apply. Such objects, likewise sums taken away in any currency other than that of the Detaining Power and the conversion of which has not been asked for by the owners, shall be kept in the custody of the Detaining Power and shall be returned in their initial shape to prisoners of war at the end of their captivity. Article 19. Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger. . . . For a commentary see J. S. Picket, editor, op. cit., vol. 3. Until 1965 Canada has adhered to the July 27, 1929 Geneva Convention Relative to the Treatment of Prisoners of War, 1933 Can. T.S. No. 5, 118 L.N.T.S. 343 and 1942 Can. T.S. No. 6. However, see 1949 Geneva Conventions Act, Bill s. 25, as passed by the Senate on June 3, 1964 approving the Geneva Conventions for the Protection of War Victims, including the Convention relative to the Treatment of Prisoners of War, now enacted as S.C. 1964-65, c. 44.



8) Sanction of Laws of War: War Crimes i) Germany See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 U.N.T.S. 277 and War Crimes Act, S.C., 1946, c. 72; The Nuremberg Judgment (1946), Cmd. 6964; Jackson, Niirnberg in Retrospect (1949), 27 Can. Bar Rev. 761; Forbes, Some Legal Aspects of the Nuremberg Trial (1946), 24 Can. Bar Rev. 584; Finch, The Nuremberg Trial and International Law (1947), 41 Am. J. Int. L. 20; Wright, The Law of the Nuremberg Trial (1947), 41 Am. J. Int. L. 38; Schick, The Nuremberg Trial and the International Law of the Future (1947), 41 Am. J. Int. L. 770; War Criminals and the Law of the United Nations (1947), 7 U. of T.LJ. 27. The Moscow Declaration of 1943 provided for the punishment by the Allies of Germans who might be found guilty of having committed war crimes. On August 8, 1945, an agreement was concluded in London between the Governments of the United Kingdom, the United States, the U.S.S.R. and France, acting in the interests of all the United Nations, which provided for the establishment of an International Military Tribunal for the trial of war criminals whose offences had no particular geographical location. Later, nineteen governments of the United Nations adhered to the agreement. The constitution, jurisdiction and function of the tribunal were defined in the charter annexed to the agreement. AGREEMENT FOR THE ESTABLISHMENT OF AN INTERNATIONAL MILITARY TRIBUNAL Concluded at London, on August 8, 1945 (1945) 39 Am. J. Int. L. Supp. 257 . . . The Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics (hereinafter called "the signatories") acting in the interests of all the United Nations and by their representatives duly authorized thereto have concluded this agreement. Article L There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities. Article 2. The constitution, jurisdiction and functions of the International Military Tribunal shall be those set out in the charter annexed to this agreement, which Charter shall form an integral part of this agreement. . . . CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL (Selected Articles) 1945, Trial of the Major War Criminals, I, p. 10 Article L In pursuance of the Agreement signed on the 8th day of August, 1945, by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, there shall be established.



an International Military Tribunal (hereinafter called "The Tribunal") for the just and prompt triad and punishment of the major war criminals of the European Axis. . . . Article 2. The Tribunal shall consist of four members, each with an alternate. One member and one alternate shall be appointed by each of the signatories. The alternates shall, so far as they are able, be present at all sessions of the Tribunal. In cases of illness of any member of the Tribunal or his incapacity for some other reason to fulfil his functions, his alternate shall take his place. Article 3. Neither the Tribunal, its members nor their alternates can be challenged by the prosecution, or by the defendants or their counsel. Each signatory may replace its member of the Tribunal or his alternate for reasons of health or for other good reasons, except that no replacement may take place during a trial, other than by an alternate. Article 4. (a) The presence of all four members of the Tribunal or the alternate for any absent member shall be necessary to constitute the quorum. (b) The members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a President, and the President shall hold office during that trial, or as may otherwise be agreed by a vote of not less than three members. The principle of rotation of presidency for successive trials is agreed. If, however, a session of the Tribunal takes place on the territory of one of the four signatories, the representatives of that signatory on the Tribunal shall preside. (c) Save as aforesaid the Tribunal shall take decisions by a majority vote and in case the votes are evenly divided, the vote of the President shall be decisive: provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal. . . . Article 6. The Tribunal established by the agreement referred to in article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interest of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against peace: Namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) War Crimes: Namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) Crimes against humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.



Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment. Article 8. The fact that the defendant acted pursuant to order of the Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determine that justice so requires. . . . Article 9. At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization. After receipt of the indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard. Article 10. In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned. . . . Article 12. The Tribunal shall have the right to take proceedings against a person charged with crimes set out in article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence. Article 13. The Tribunal shall draw up rules for its procedure. These rules shall not be inconsistent with the provisions of this Charter. . . . Article 16. In order to ensure fair trial for the defendants, the following procedure shall be followed: (a) The indictment shall include full particulars specifying in detail the charges against the defendants. A copy of the indictment and of all the documents lodged with the indictment, translated into a language which he understands, shall be furnished to the defendant at a reasonable time before the trial. (b) During any preliminary examination or trial of a defendant he shall have the right to give any explanation relevant to the charges made against him. (c) A preliminary examination of a defendant and his trial shall be conducted in, or translated into, a language which the defendant understands. (d) A defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of counsel. (e) A defendant shall have the right through himself or through his counsel to present evidence at the trial in support of his defense, and to cross-examine any witness called by the prosecution. . . . Article 18. The Tribunal shall



(a) Confine the trial strictly to an expeditious hearing of the issues raised by the charges, (b) Take strict measures to prevent any action which will cause unreasonable delay, and rule out irrelevant issues and statements of any kind whatsoever. (d) Deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any defendant or his counsel from some or all further proceedings, but without prejudice to the determination of the charges. Article 19. The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value.... Article 25. All official documents shall be produced, and all count proceedings conducted, in English, French and Russian, and in the language of the defendant. So much of the record and of the proceedings may also be translated into the language of any country in which the Tribunal is sitting, as the Tribunal considers desirable in the interests of justice and public opinion. Article 26. The judgment of the Tribunal as to the guilt or the innocence of any defendant shall give the reasons on which it is based, and shall be final and not subject to review. Article 27. The Tribunal shall have the right to impose upon a defendant, on conviction, death or such other punishment as shall be determined by it to be just. Article 28. In addition to any punishment imposed by it, the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany. Article 29. In case of guilt, sentences shall be carried out in accordance with the orders of the Control Council for Germany, which may at any time reduce or otherwise alter the sentences, but may not increase the severity thereof. If the Control Council for Germany, after any defendant has been convicted and sentenced, discovers fresh evidence which, in its opinion, would found a fresh charge against him, the Council shall report accordingly to the Committee established under article 14 hereof, for such action as they may consider proper, having regard to the interests of justice. Article 30. The expenses of the Tribunal and of the trials, shall be charged by the signatories against the funds allotted for maintenance of the Control Council for Germany. In re Goering and Others Nuremberg: International Military Tribunal (1946) 41 American Journal of International Law 172 (1947) Indictment The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics by the undersigned, Robert H. Jackson, Frangois de Menthon, Hartley Shawcross and R. A. Rudenko, duly appointed to represent their respective Governments in the investigation of the charges against and the prosecution of the major war criminals, pursuant to the Agreement of London dated 8th August, 1945, and the Charter of this Tribunal annexed thereto, hereby accuse as guilty, in the respects hereinafter set forth, of Crimes against Peace, War Crimes, and Crimes against Humanity,



and of a Common Plan or Conspiracy to commit those Crimes, all as defined in the Charter of the Tribunal, and accordingly name as defendants in this cause and as indicated on the counts hereinafter set out: Hermann Wilhelm Goering, Rudolf Hess, Joachim von Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenb runner, Alfred Rosenberg, Hans Frank, Wilhelm Prick, Julius Stretcher, Walter Funk, Hjalmar Schacht, Gustav Krupp von Bohlen und Halbach, Karl Donitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Martin Bormann, Franz von Papen, Artur Seyss-Inquart, Albert Speer, Constantin von Neurath and Hans Fritzsche, individually and as members of any of the Groups or Organizations next hereinafter named.... The chief prosecutors commenced their opening speeches on 20 November, 1945. Mr. Justice Robert H. Jackson, chief prosecutor for the United States, remarked that the tribunal "while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. . . . When I say that we do not ask for convictions unless we prove crime, I do not mean mere technical or incidental transgression of international conventions. We charge guilt or planned and intended conduct that involves moral as well as legal wrong. And we do not mean conduct that is natural and human, even if illegal, cutting of corners, such as many of us might well have committed had we been in the defendants' positions. It is not because they yielded to the normal frailties of human beings that we accuse them. It is their abnormal and inhuman conduct which brings them to this bar." [1 Trials of the Major War Criminals, London, 1946, pp. 3, 5, 6.] Sir Hartley Shawcross, chief prosecutor for the United Kingdom, stated that "individual war crimes have long been recognized by International Law as triable by the courts of those states whose nationals have been outraged at least so long as a state of war persists . . . the Charter merely develops a pre-existing principle . . . the view of the British Government [is] that. . . this Tribunal will apply to individuals not the law of the victor, but the accepted principles of international usage, in a way which will . . . promote and justify the rule of International Law . . . " [Ibid., p. 48.] The tribunal reviewed some of the events that followed the First World War and, in particular, traced the growth of the Nazi Party to a position of supreme power in Germany. Germany's seizure of Austria, Czechoslovakia, Poland, Denmark, Norway, Belgium, the Netherlands and Luxembourg, and her attacks on Greece and the Soviet Union, were considered in the light of the Treaty of Versailles, the Kellogg-Briand Pact, the Munich Agreement, and the Russo-German Non-Aggression Pact of 1939. The alleged Commission of war crimes and crimes against humanity, e.g., the murder and ill-treatment of the civilian population, the persecution of the Jews, the slave labour policy, the pillage of public and private property, were considered in relation to The Hague Convention of 1907, the Geneva Convention of 1929, and the Charter of the Tribunal. The Tribunal held that Goering and eighteen other accused were guilty of various charges. Twelve of the accused, including Goering, von Ribbentrop, Keitel and Bormann, were sentenced to death, three, including Hess, were sentenced to life-imprisonment, and the remaining four were committed to prison for long terms of years. The reasons for judgment, delivered on 1 October, 1946, are reproduced on two points only. THE TRIBUNAL: . . . The jurisdiction of the Tribunal is defined in the Agreement and Charter and the crimes coming within the jurisdiction of



the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the Tribunal. The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law. The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right to set up special courts to administer law. With regard to the constitution of the Court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.... It was urged on behalf of the defendants that a fundamental principle of all law—international and domestic—is that there can be no punishment of crime without a pre-existing law. "Nullum crimen sine lege, nulla poena sine lege." It was submitted that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders. In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they did in the Government of Germany, the defendants or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes, they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts. This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of 27 August 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on 63 nations, including Germany, Italy and Japan at the outbreak of war in 1939.... The question is, what was the legal effect of this Pact? The nations who signed the Pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the Pact, any nation resorting to war as an instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. . . .



But it is argued that the Pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions' had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offenses against the law of war; yet the Hague Convention nowhere designates such practices as criminal, not is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have; tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal^ and of much greater moment than a breach of one of the rules of the Hague Convention. In interpreting the words of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing. The view which the Tribunal takes of the true interpretation of the Pact is supported by the international history which preceded it. ... All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world, finds its expression in the series of pacts and treaties to which the Tribunal has just referred. . . . r It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. In the recent case of Ex Parte Quirin (1942 317 U.S. 1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said: "From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct 6f war, the status, rights, and duties of enemy nations as well ar enemy individuals." He went on to give a list of cases tried by the Courts, where individual offenders were charged with offenses against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men,



not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. The provisions of Article 228 of the Treaty of Versailles already referred to illustrate and enforce this view of individual responsibility. The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. [The Tribunal referred to Article 7 of the Charter.] ... On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law. It was also submitted on behalf of most of these defendants that in doing what they did they were acting under the orders of Hitler, and therefore cannot be held responsible for the acts committed by them in carrying out these orders. [The Tribunal referred to Article 8.] The provisions of this article are in conformity with the laws of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible. The evidence relating to war crimes has been overwhelming, in its volume and its detail. It is impossible for this judgment adequately to review it, or to record the mass of documentary and oral evidence that has been presented. The truth remains that war crimes were committeed on a vast scale, never before seen in the history of war. They are perpetrated in all the countries occupied by Germany, and on the high seas, and were attended by every conceivable circumstance of cruelty and horror. There can be no doubt that the majority of them arose from the Nazi conception of "total war," with which the aggressive wars were waged. For in this conception of "total war" the moral ideas underlying the conventions which seek to make war more humane are no longer regarded as having force or validity. Everything is made subordinate to the overmastering dictates of war. Rules, regulations, assurances, and treaties, all alike, are of no moment; and so, freed from the restraining influence of international law, the aggressive war is conducted by the Nazi leaders in the most barbaric way. Accordingly, war crimes were committed when and wherever the Fuehrer and his close associates thought them to be advantageous. They were for the most part the result of cold and criminal calculation. . . . The Tribunal proposes, therefore, to deal quite generally with the question of war crimes, and to refer to them later when examining the responsibility of the individual defendants in relation to them. Prisoners of war were ill-treated and tortured and murdered, not only in defiance of the well-established rules of international law, but in complete disregard of the elementary dictates of humanity. Civilian populations in occupied territories suffered the same fate. Whole populations were deported to Germany for the purposes of slave labor upon defense works, armament production and similar tasks connected with the war effort. Hostages were taken in



very large numbers from the civilian populations in all the occupied countries, and were shot as suited the German purposes. Public and private property was systematically plundered and pillaged in order to enlarge the resources of Germany at the expense of the rest of Europe. Cities and towns and villages were wantonly destroyed without military justification or necessity.... With regard to qrimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression, and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity. NOTES Goering, Von Ribbentrop, Gen. Keitel, and Rosenberg were found guilty on all counts and sentenced to death.

[With respect to Donitz and Raeder the Tribunal said:] Donitz is indicted on Counts One, Two, and Three. In 1935 he took command of the first U-boat flotilla commissioned since 1918, became in 1936 commander of the submarine arm, was made Vice-Admiral in 1940, Admiral in 1942, and on 30 January 1943 Commander-in-Chief of the German Navy. . . . Donitz is charged with waging unrestricted submarine warfare contrary to the Naval Protocol [Proces-Verbal] of 1936, to which Germany acceded, and which reaffirmed the rules of submarine warfare laid down in the London Naval Agreement of 1930. . . . In the actual circumstances of this case, the Tribunal is not prepared to hold Donitz guilty for his conduct of submarine warfare against British armed merchant ships. However, the proclamation of operational zones and the sinking of neutral merchant vessels which enter those zones presents a different question. This practice was employed in the war of 1914-18 by Germany and adopted in retaliation by Great Britain. The Washington Conference of 1922, the London Naval Agreement of 1930, and the Protocol of 1936 were entered into with full knowledge that such zones had been employed in the first World War. Yet the Protocol made no exception for operational zones. The order of Donitz to sink neutral ships without warning when found within these zones was therefore, in the opinion of the Tribunal, a violation of the Protocol. . . .



In view of all of the facts proved and in particular of an order of the British Admiralty announced on 8 May, 1940, according to which all vessels should be sunk at night in the Skagerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that Nation entered the war, the sentence of Donitz is not assessed on the ground of his breaches of the international law of submarine warfare. . . . Raeder is indicted on Counts One,1 Two,* and fhree.3 In 1928 he became Chief of Naval Command and in 1935 Oberbef ehlshaber der Kriegsmarine (OKM); in 1939 Hitler made him Gross-Admiral.... Raeder is charged with War Crimes on the High Seas. The Athenia, an unarmed British passenger liner, was sunk on 3 September 1939, while outward bound to America. The Germans 2 months later charged that Mr. Churchill deliberately sank the Athenia to encourage American hostility to Germany, In fact, it was sunk by the German U-boat 30. Raeder claims that an inexperienced U-boat commander sank it in mistake for an armed merchant cruiser, that this was not known until the U-30 returned several weeks after the German denial and that Hitler then directed the Navy and Foreign Office to continue denying it. Raeder denied knowledge of the propaganda campaign attacking Mr. Churchill. The most serious charge against Raeder is that he carried out unrestricted submarine warfare, including the sinking of unarmed merchant ships, of neutrals, non-rescue and machine-gunning of survivors, contrary to the London Protocol of 1936. The Tribunal makes the same finding on Raeder on this charge as it did as to Donitz, which has already been announced, up until 30 January 1943 when Raeder retired. NOTES Doenitz was found guilty on counts 2 and 3 and received a ten year sentence. , Raeder was found guilty on the three counts and sentenced to life imprisonment. PRINCIPLES OF THE NUREMBERG CHARTER AND JUDGMENT

Formulated by the International Law Commission, 1950 U.N. General Assembly Records, 5th Session, Supp. 12 (a/1315) I. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. II. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. III. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. V. Any person charged with a crime under international law has the right to a fair trial on the facts and law. VI. The crimes hereinafter set out are punishable as crimes under international law: a. Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; 1

Gommon plan.


Crimes against peace.


War Crimes.



(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). b. War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war [or] of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. c. Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. VII. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.... See the Draft Code of Offences against the Peace and Security of Mankind, Report of International Law Commission, sixth session (1954) pp. 9-12. The recent changes in the British Manual of Military Law make specific references to commands that violate the "unchallengable rules of warfare and outrage the general sentiment of humanity," indicating that a refusal to execute such a command would not amount to unlawful disobedience. (Manual of Military Law (U.K.) 1951, part I, p. 207, para. 3c. See also Draft of M.M.L. (U.K.) 1951, part II, Draft section XIV, para. 443/1, and notes at pp. 341(a)-342(c).)

ii) Japan Observations on the Trial of War Criminals in Japan (1949), 1 External Affairs 12: "The International Military Tribunal for the Far East, (I.M.T.F.E.) which was the Japanese counterpart of the Nuremberg Court, was established in virtue of four documents: the Cairo Declaration, the Potsdam Declaration, the Instrument of Surrender, and the Agreement of the Moscow Conference of December 26, 1945. "At Cairo [on December 1, 1943] it was agreed 'to restrain and punish the aggression of Japan'; at Potsdam it was further determined that 'there must be eliminated for all time the authority and influence of those who have deceived and misled the people of Japan into embarking on world conquest . . . We do not intend that the Japanese people shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners.' The Instrument of Surrender subjects the Emperor and the Japanese Government to the authority of the Supreme Commander for the Allied Powers, (SCAP). At the Moscow Conference it was agreed that, The Supreme Commander shall issue all orders for the implementation of theu terms of surrender, the occupation and control of Japan.' Special Proclamation. On January 19, 1946, a special proclamation of SCAP citing the authority of the above mentioned international agreements, established the I.M.T.F.E. On the same day the charter of the Tribunal was approved by SCAP, setting forth the constitution, jurisdiction and functions of the tribunal. On February 15, 1946 the Supreme Commander issued an order appointing nine members of the Tribunal to be nominated, one by each of the Allied Powers. (This number was increased by an amendment of the charter to eleven, that is to say, all the powers represented on the Far Eastern Commission). SCAP appointed from among



these eleven the President of the Tribunal, Sir William Webb, Prepresentative of Australia, Canada was represented by Mr. Justice E. S. McDougall. The other members of the Tribunal were: China—Mr. Justice Ju-Ao-Mei; France—Mr. Justice H. Bernard; India—Mr. Justice R. B. Pal; United Kingdom—Lord Patrick; Netherlands—Mr. Justice B. V. A. Roling; New Zealand—Mr. Justice E. H. Northcroft; The Philippines—Mr. Justice D. Jaranilla; U.S.S.R.—Maj. Gen. of Justice I. M. Zaryanov; United States— Mr. Justice Higgins, subsequently replaced by Maj. Gen. Myron C. Cramer. "Policy Decision. The Far Eastern Commission passed a policy decision on April 3, 1946 on the subject, 'Apprehension, Trial and Punishment of War Criminals in the Far East,' which set forth the principles by which the Supreme Commander for the Allied Powers should be guided in apprehending and trying not only the so-called major war criminals, viz. those charged with 'planning, preparing or waging a war of aggression . . . in violation of international treaties,' but those commonly referred to as minor war criminals, those charged with violation of the laws and customs of war. The Charter of the I.M.T.F.E. was amended on April 26, 1946, to conform with this policy decision. "The eleven nations were requested to name associated prosecutors to assist the Chief of Counsel, Mr. Joseph B. Keenan of the United States. The Canadian prosecutor was Brigadier H. G. Nolan, K.C. "Unlike the rules followed at Nuremberg, the I.M.T.F.E. allowed the Japanese accused to be represented by U.S. attorneys as well as their own counsel. All the accused took advantage of this ruling. "On April 29, 1946, twenty-eight Japanese leaders were indicted on fifty-five counts. The original indictment charged the accused with conspiring to have Japan wage aggressive war, and with the responsibility for wholesale atrocities against prisoners-of-war and civilians. After deliberation, the Tribunal eventually reduced to ten the number of counts on which a verdict could be given. The accused were arraigned on May 3, 1946, when all entered a plea of not guilty. The prosecution opened its case on June 4, 1946, and hearings of the case continued, with sundry recesses, until April 16, 1948, when the court adjourned for the Tribunal to prepare its judgment. "Court's Judgment. The court was reconvened on November 4, 1948, to hear the verdict and judgment. Individual verdicts and sentences were read on the closing day, November 12. All defendants were found guilty either in part or in whole as charged under various counts and the following were the sentences: sentenced to death by hanging: Doihara, Itagaki, Muto, Kimura, Matsui, Hirota, and Tojo. (Hirota was the only civilian in this group). Sentenced to life imprisonment: Araki, Hashimoto, Hata, Hoshino, Hiranuma, Kaya, Kido, Koiso, Minami, Oka, Oshima, Sato, Shimada, Shiratori, Suzuki, and Umezu. Togo was sentenced to 20 years imprisonment from the date of arraignment and Shigemitsu to 7 years from the same date. ''Majority Decision. Judgment and sentences were determined by majority decision of the eleven judges. The judges from the Netherlands and France entered partially dissenting opinion, while the Indian judge entered a completely dissenting opinion, in which he gave it as his view that none of the defendants should have been found guilty and that the Tribunal itself was not properly constituted to try the accused. The Australian judge, Sir William Webb, while not dissenting from the majority judgment, entered a brief personal opinion in which he stated that he was not in favour of the



capital sentence, partly because of the advanced age of some of the defendants. As an additional reason he stated that he regarded the Emperor as the ringleader in the conspiracy, but he had not been placed in the dock since he was granted immunity by the Allied powers for political reasons. The French and Chinese judges made statements expressing the view that the Emperor should have been indicted. Dissenting and concurring opinions of individual judges were not read in open court, as were the judgment and sentences. "Execution of Sentences. On November 22, General MacArthur, in accordance with the directive from the Far Eastern Commission, summoned the representatives of the eleven powers in Tokyo to consult and advise with him on the sentences. He was empowered to reduce any sentences as he saw fit but not to increase their severity. On November 24 he announced that he was satisfied that the verdicts were fair and that he 'could conceive of no judicial process where greater safeguard was made to evolve justice.' Accordingly, he made no changes in the sentences. Counsel for two who were sentenced to death, Doihara and Hirota, sent appeals to the Supreme Court of the United States, which agreed to entertain the appeals on December 16. The Supreme Court, voting 6 to 1 on December 20, decided it had no jurisdiction over the International Military Tribunal for the Far East. Execution of sentence was carried out upon the seven condemned to death on the morning of December 23, 1948. (Hirota v. MacArthur (1948), 338 U.S. 197.) "Atrocities against Prisoners of War. Concurrently with the trial of essentially political prisoners by the I.M.T.F.E. in Tokyo, military commissions in Yokohama dealt with the large number of individuals charged with atrocities against prisoners of war and civilian populations. On October 2, 1945, Legal Section was established by SCAP as a Special Staff Section of General Headquarters to advise him on legal matters of a general nature, on general policies and procedures in respect of war criminals, and to assist in the prosecution of war criminals. It was to be responsible for the prosecution in U.S. Eighth Army military commissions of 'B' and 'C war criminals, i.e. those individuals who violated the laws and customs of war and those persons guilty of crimes against humanity such as murder, group extermination, enslavement of populations etc. These 'minor' war crimes trials continue at this writing [1949], but as of December 9, 1948 there had been 303 trials committed, involving 844 persons. Of this group 114 were sentenced to death, 52 were given life sentences, 80 were acquitted and the remainder were given sentences varying from a few months to 50 years. "Although these commissions were set up as U.S. military courts, various governments were asked to have representation on the bench and in the prosecution staff where their nationals had been victims. The Canadian Division of Legal Section, GHQ, began its work on April 16, 1946, and continued until May 23, 1947. In that period 12 cases were completed, involving 23 defendants. The Division did general duty on the commissions in addition to those cases involving Canadian victims." NOTES CONVENTION ON GENOCIDE Opened for Signature, December 9, 1948 Can. T.S. 1949, No. 27, 78 U.N.T.S. 277 Article 1. The Contracting Parties confirm that genocide, whether committed



in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. ; Article 2. In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to niembers of the group; ; ' (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Article 3. The following actsshall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide. Article 4. Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Article 5. The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III. Article 6. Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. Article 7. Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force, Article 8. Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. Article 9. Disputes between the Contracting Parties relating to the interpre* tation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. See (1951), 29 Can. Bar Rev. 428.

9) Civil War NOTES The George Pinson Claim (1928), 5 U.N.R.I.A.A. 327, was a claim before the French-Mexican Claims Commission by a French national for damages for injuries suffered during the revolutionary activities in Mexico from 1910 to 1920. In reviewing the claim, the Commission said in part: "The term 'revolution' has no precise meaning in international law. In the Franco-Mexican Convention it is not to be contrasted with the term 'insurrection' which indicates a more general idea, of which the 'revolution' is only a species. The question whether, within the terms of the Convention, an insurrectionary movement or a civil war is or it not a 'revolution' or a 'revolutionary movement' does not depend on its final seizure of power, nor on the more or less moral integrity of its originators or the lofty political and social ideals



which inspired them, nor on the general or local character of the movement, nor on the recognition of the insurgents as belligerents by either the home; government or third States. "In my opinion, all the forces who have participated in a revolutionary movement should be considered as 'revolutionary forces', that is to say, an armed movement, more or less organised, which, inspired by a political or social pro-; gramme, or influenced by one or more determined personalities, or springing solely from general discontent with the dominant political regime in the country, has for its object the overthrow of a particular government or changes in the system of government. ..." The Commission held that Pinson was entitled to recover damages for injuries resulting from the acts of both loyal and rebel forces.

10) Termination of War as Distinguished from Termination of Hostilities The status of war may be terminated by (a) simple cessation of hostilities, (b) conquest followed by annexation, (c) a peace treaty, (d) an armistice agreement, (e) unilateral declaration of the victorious State terminating the status of war. Hostilities may be terminated by (a) armistice agreement, (b) unconditional surrender, (c) truce, (d) cease-fire, (e) agreement to cessation of hostilities. In re Walpole Canada: Ontario High Court [1947] OR 549, [1947] 4 D.L.R. 138 This case deals with the construction of a will, wherein the question arises: What is meant by "termination of hostilities"? GALE J: The Acting Under-Secretary of State for External Affairs took the position that: The state of war between Canada and the enemy powers exists today de facto and de jure. Actual hostilities between Canada and the last of the belligerents ceased on the 14th August when Japan surrendered unconditionally. However, there has been no official declaration concerning the actual cessation of hostilities. I conceive it to be my duty to attempt to determine what was meant by the testatrix when she signed the will in question, and to do so I should apply the general rule that the words are to be first read as ordinary words in their grammatical and ordinary sense. Adopting that principle, I have no hesitation in holding that the testatrix intended that her son Frederick Kenneth Walpole should be entitled to the residue of her estate upon the unconditional surrender of Germany or Japan, whichever should be last. At that moment actual fighting, to all intents and purposes, was stopped. I cannot bring myself to believe that she was using the words in question in an international sense or in tlie manner of diplomats, but rather in the sense which prompted the peoples of the allied nations to celebrate the end of fighting on May 8, 1945, and August 14, 1945, respectively. It was conceded that a formal state of war still exists and that, as the Department of External Affairs puts it, "a state of war has continued in law up to the present time." Accordingly, Mr. Shortt contends that since the will in question was drawn by a solicitor, he and the testatrix, in using the term "termination of hostilities" must have had in mind only a condition of affairs which is recognized by the law. However, I am convinced that the deceased was looking at the end of actual fighting between the warring nations—the substantial cessation of active hostilities. It would be



extremely difficult to think that it was her intention that the phrase should be taken to mean the formal and official end of the war by the signing and ratification of peace treaties. It was also argued by counsel on behalf of Mr. Bauer that, as a matter of fact, hostilities are still raging in many parts of the world, but it must be remembered that such activities are of a sporadic nature and are not the official efforts of nations as such. Referring only to the will then, I am firmly of the opinion that the deceased's son became entitled to the residue of the estate on August 14, 1945, the date of unconditional surrender by the Japanese. NOTES In Spitz v. Secretary of State of Canada, [1939] Ex. C.R. 162, [1939] 2 D.L.R. 546, MacLean J. said: 'Treaties only become definitely binding on being ratified. A suspension of hostilities does not bring about a termination of a state of war. That, I think, is hardly open to debate." A state of war with Germany was still in existence in February, 1919, and for some time thereafter, since the Treaty of Peace, which provided that the state of war should terminate upon its coming into force, was not signed until June 28, 1919, and not ratified until January 10, 1920. In (1951), 3 External Affairs 292, it is stated: "The Department of External Affairs announced on July 10 that the state of war with Germany had been terminated by Royal Proclamation published in the Canada Gazette on July 10, 1951. "Although active hostilities were ended by the declaration of June 5, 1945, regarding the unconditional surrender of the German Reich, it has proved impossible since then to conclude a Treaty of Peace which would dispose of questions relating to Germany and arising out of the state of war. With this in mind the Government of Canada announced last October its intention of taking action to terminate the state of war with Germany as soon as it was in a position to do so. "The action by Canada terminating the state of war with Germany does not prejudice decisions on questions arising out of the war with Germany which remain to be determined by a future Treaty of Peace or by other agreements with Germany, nor does it affect in any way the Allied agreements and declarations regarding control machinery for Germany which have been made since the surrender of that country. The satisfaction of Canadian claims against Germany arising out of the war is not affected. "This action by Canada simply means that insofar as Canadian domestic law, both public and private, is concerned, a state of war no longer exists between Canada and Germany and German nationals are no longer considered to be enemy aliens. The Government of Canada still reserves the right to retain any money or property which is vested in the Custodian by virtue of the Canadian Trading with the Enemy Regulations, but it will be recalled that no obstacle has been placed since December 29, 1949, in the way of the resumption of all commercial and financial dealings between persons in Canada and persons in Germany or of the acquisition of property which was not subjected to control up to that date. This position remains unchanged." Note that the date of termination of war, according to Canadian law, is not necessarily the same as the date of the peace treaty or the date of cessation of hostilities. See the Treaty of Versailles, 1919: Treaties of Peace Act (1919), S.C. 1919, 2nd sess. c. 30, Bulgaria Peace Treaty, S.C., 1920, c. 4; Hungary Peace Treaty Act, S.C., 1922, c. 49; Turkey, Peace Treaty Act, S.C., 1922, c. 49; Treaties of Peace with Italy, 49-50 U.N.T.S.; Rumania, 42 U.N.T.S. 3; Hungary, 41 U.N.T.S. 135, S.C., 1947-48, c. 71; Japan, 136 U.N.T.S. 45 and 138 U.N.T.S. 183, S.C., 1952, c. 50.



11) Legal Effect of War (as between Enemies) on Public or Private Rights i) Sedition and treason Rex v. Felton Canada: Supreme Court of Alberta (1915) 25 Can. C.C. 207, 33 W.L.R. 157 HARVEY C.J.: The accused was convicted before my brother Walsh without a jury for "that he, the said Oscar Felton, at Okotoks, in said Judicial District, on or about the 27th day of August, A.D. 1915, did speak seditious words with intent to raise disaffection and discontent among His Majesty's subjects," and "that he, the said Oscar Felton, at the same time and place did speak seditious words with intent to promote public disorder." . . . Stephen in his History of Criminal Law, Vol. 2, p. 298, classifies seditious offences as "offenses against internal public tranquillity not accompanied by or leading to open violence," and defines seditious intention as follows: A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of Her Majesty, her heirs and successors, or the Government and Constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty's subjects to attempt otherwise than by lawful means the alteration of any matter in Church or State by law established, or to raise discontent or disaffection among Her Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of Her Majesty's subjects. . . . The words used in the present case were uttered in a hotel bar-room. The evidence about them is given by the bartender and another person who was present. Whether there were others present, and if so, how many, does not appear. One witness says, "the conversation started off against the British." The accused, who stated to the magistrate that he was a naturalized British subject, having been born in the United States, made some very insulting references to Englishmen in language some of which is quite unfit for repetition. He said, amongst other things, "I would like to see the Germans come across the Channel and wipe England off the map. England put Russia into the war and is letting them get licked." . . . The words used were undoubtedly a slander on Englishmen, and a slander on the British Government, and the natural inference is that they were uttered with the intent that the hearers would accept the speaker's view, or for the purpose of insulting and annoying them. In the one case, there would be the intent to bring into hatred and contempt the Government, or in the other case, to promote ill-will with the probable consequence of a breach of the peace, either of which, according to the definitions, would be a seditious intention. It is argued by counsel for the accused that the discontent or ill-will must be that of British subjects, according to the definition, and that there is no evidence that the hearers in this case were British subjects. I can find no reason for concluding that the word "Subject" is used by Stephen or the other text writers in the sense of a natural bora or naturalized British subject, and I can see no reason why the seditious words would have any different or more serious effect if the hearers belonged to that limited class. The Standard Dictionary defines "Subject," as:—One who is under the governing power of another; a person owing allegiance to a monarch.



Blackstone points out that all residents owe allegiance, that of the natural born subject being perpetual (as it was when he wrote), while that of the alien resident is only temporary while he resides under the protection of the Sovereign. In this connection he says (Vol. 1, p. 371, of edition by Lewis): This allegiance theft, both express and implied, is the duty of all the King's subjects, under the distinctions here laid down of local and temporary, or, universal and perpetual* ' I n Stephen's Commentaries on the Laws of England, a much more modem--work treating of the same subject of the two classes of allegiance '(7th ed., VoL II, p. 405), it is said "that allegiance is a debt due from the subject upon an implied contract with the prince, that so long as the one affords protection, so long will the other demean himself faithfully." It would appear, therefore, that the expression "His Majesty's subjects," as "used by the text writers under consideration, includes all the persons subject to the laws whether included in the term British subject in its narrower acceptation or not. ,r. There is no doubt that the chief field of sedition in the past has been ja attacks upon the State and its form and methods of government, but it ist also clear that the offense is by no means limited to that sphere, but covers a very wide field, inasmuch as anything affecting public order affects the tranquillity of the State, and in this present day of the great war, When all our people are in, a state of nervous tension and excitement, and ifrterise feeling against the enemy due to the struggle in which we are engaged, words which, in ordinary times, would have no outward effect in creating disorder, cannot be used now without much greater danger, and such words as those in question would likewise not be likely to be used now unless with some intent to stir up trouble. I am of opiriion, therefore, that there was evidence from which tlie learned trial Judge could legally convict the accused of the offense of speaking seditious wbrds, and I would answer the questions reserved accordingly. RE Schaefer Canada: Quebec, Court of King's Bench (1918) 31Can.C.C.22

CARROLL J.: . . . The point, therefore, is to ascertain if the indictment, as drawn, includes the crime of treason. S. 74 of the Criminal C6de defines what is understood by treason, and it is para, (i) of this section which applies to the present case, and reads as follows: "Assisting any public enemy at war with His Majesty in such war by any means whatsoever." This definition is, as one can see, very general. • : . - . , - v i The indictment reads as follows in the essential and pertinent parts cm the point which we have to decide: Israel Schaefer, ait the City of Montreal, . . . on October 11, 12, 13 and 14, 1914, . . . being at all such times a subject of our Lord the King, not regarding the duty of his allegiance, as a false traitor against our said Lord the King, unlawfully and maliciously did commit treason, to wit: by assisting . . . subjects of ;the Austeia^Hungarian Monarchy . . . to leave . . . the Dominion of Canada and proceed to Austria-Hungary, between which Monarchy and the Sovereign thereof and our said Lord the King war was then and is yet prosecuted and carried on, as he, the said Israel Sehaefer, then and there well knew, for the



purpose in such way of aiding, comforting and assisting the said public enemy so at war with His Majesty.

And the indictment continues, alleging that Schaefer sold transportation tickets to these Austrians for one of the ports of Bulgaria, and gave them documents which permitted them to reach the frontier between Roumania and Austro-Hungary; that he advised them to speak the Roumanian language, and favored an accomplishment of their purpose uby maliciously, unlawfully and traitorously providing and assiting . . . each and all of them with moneys of the said Austro-Hungarian Monarchy, to be used in furtherance of their said purpose." As I have said, the question is, whether this indictment contains the elements of treason. In short, the indictment says that Schaefer took means to send Austrian subjects into Austro-Hungary, in order to aid the enemy; that he sold them transportation tickets and procured money for them in order to obtain their transportation. It seems to me that the charge is sufficiently well-worded.

NOTES Pertinent sections of the Canadian Criminal Code read as follows: Treason Section 46. (1) Every one commits treason who, in Canada: (a) Kills or attempts to kill Her Majesty, or does her any bodily harm tending to death or destruction, maims or wounds her, or imprisons or restrains her; (b) Levies war against Canada or does any act preparatory thereto [see R. v. Slavin (1866), 17 U.C.C.P. 205]; (c) Assists an enemy at war with Canada, or any armed forces against whom Canadian forces are engaged in hostilities whether or not a state of war exists between Canada and the country whose forces they are; (d) Uses force or violence for the purpose of overthrowing the government of Canada, or a province; (e) Without lawful authority, communicates or makes available to an agent of a State other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that State for a purpose prejudicial to the safety of defence of Canada [see supra, Official Secrets Act, R.S.C., 1952, c. 198]; (f) Conspires with any person to dp anything mentioned in paragraphs (a) to (d); (g) Forms an intention to do anything mentioned in paragraphs (a) to (d); and manifests that intention by an overt act; or v (h) Conspires with any person to do anything mentioned in paragraph (e) or forms an intention to do anything mentioned in paragraph (e) and manifests that intention by an overt act. (2) Notwithstanding subsection (1), a Canadian citizen or a person who owes allegiance to Her Majesty in right of Canada commits treason if, while in or out of Canada, he does anything mentioned in subsection (1). (3) Where it is treason to conspire with any person, the act of conspiring is an overt act of treason. [For punishment see sections 47-48.] Sabotage Section 52. (1) Every one who does a prohibited act for a purpose prejudicial to (a) the safety, security or defence of Canada, or v (b) the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada, is guilty of an indictable offence and is liable to imprisonment for ten years.



Inciting to Mutiny Section 53. Every one who (a) attempts, for a traitorous or mutinous purpose, to seduce a member of the Canadian Forces from his duty and allegiance to Her Majesty, or (b) attempts to incite or to induce a member of the Canadian Forces to commit a traitorous or mutinous act, is guilty of an indictable offence and is liable to imprisonment for fourteen years. "Seditious Words"—"Seditious Intention" Section 60. (1) Seditious words are words that express a seditious intention. (2) A seditious libel is a libel that expresses a seditious intention. (3) A seditious conspiracy is an agreement between two or more persons to carry out a seditious intention. (4) Without limiting the generality of the meaning of the expression "seditious intention," every one shall be presumed to have a seditious intention who (a) teaches or advocates, or (b) publishes or circulates any writing that advocates the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada. Section 63. (1) Offences in relation to military forces. Every one who wilfully (a) interferes with, impairs or influences the loyalty or discipline of a member of a force, (b) publishes, edits, issues, circulates or distributes a writing that advises, counsels or urges insubordination, disloyalty, mutiny or refusal of duty by a member of a force, or (c) advises, counsels, urges or in any manner causes insubordination, disloyalty, mutiny or refusal of duty by member of a force, is guilty of an indictable offence and is liable to imprisonment for five years. (2) "Member of a force." In this section, "member of a force" means a member of (a) the Canadian Forces, or (b) the naval, army or air forces of a state other than Canada that are lawfully present in Canada. it) Enemy aliens: personal rights and liabilities An enemy alien, unless he is in Canada by special licence of the sovereign or authorization, or unless under a proclamation, cannot sue in Canadian courts directly or indirectly. His right is suspended until peace is restored. Defining the status of an enemy alien, on August 15, 1914, the following Royal Proclamation was published in Ottawa. It ordered that "all persons in Canada of German or Austro-Hungarian nationality, so long as they quietly pursue their ordinary avocations, be allowed to continue to enjoy the protection of the law and be accorded the respect and consideration due to peaceful and law-abiding citizens; and that they be not arrested, detained or interfered with unless there is reasonable ground to believe that they are engaged in espionage, or engaging or attempting to engage in acts of a hostile nature, or are giving or attempting to give information to the enemy, or unless they otherwise contravene any law, order-in-council or proclamation." Thus an enemy alien in Canada, who peacefully pursued his ordinary avocation under this Proclamation or the Defence of Canada Regulations of 1939 could bring an action in the courts. See for instance Trefnicek v. Martin, [1939] O.W.N. 587, [1939] 4 D.L.R. 737; Kusto v. Hollinger



Consolidated Gold Mines Ltd. (1917), 41 O.L.R. 51; Topay v. Crow's Nest Pass Coal Co. (1914), 7 W.W.R 223, 29 W.L.R. 555, 20 B.C.R. 235, 18 D.L.R. 784; Sap v. Picard (1918), 20 Que. P.R. 178. The rule that an enemy alien residing outside Canada cannot sue in Canadian courts is based on the presumption that if the debt were paid to him, the money would aid the enemy: Porter v. Freudeberg [1915] 1 K.B. 857 (U.K.); De Kozarijouk v. B & A Asbestos Co. (1914), 16 Que. P.R. 214; cf. White Ltd. v. T. Eaton Co. (1916), 30 D.L.R. 459 (Ont. S.C.) and Radley v. Garber (1916), 50 S.C. 264. This presumption does not apply where the claimant resides in Canada under licence. An enemy alien wherever residing may be sued in Canadian courts and has a right to enter an appearance and to defend the action; he has also the right to appeal against any decision, final or interlocutory, that may be given against him. See for instance Rydstrom v. Krom (1915), 7 W.W.R. 1290, 31 W.L.R. 7, 21 B.C.R. 254, 21 D.L.R. 118. In general see annotations (1915), 23 D.L.R. 375, [1943] 4 D.L.R. 610; Johnson, The Conflict of Laws (2nd ed., 1962), p. 132 et seq.\ Canadian Encyclopedic Digest (Ontario) 2nd ed., 1949, vol. 1: Aliens; (Western), 2nd ed., 1956, vol. 1: Aliens; and Myers v. Teller (1915), 7 O.W.N. 834, 8 O.W.N. 414; Latta v. Halycznk (1918), 14 O.W.N. 219; Pescovitch v. Western Can. Flour Mills Co. (1914), 18 D.L.R. 786. The test of whether a person is an enemy alien is not his nationality but the place in which he resides or carries on business. A Canadian citizen voluntarily resident in, or carrying on business in, an enemy's country is an enemy alien. See also infra, Special Wartime Regulations and Reventlow-Criminil v. Streamstown, [1917] 3 W.W.R. 546, 37 D.L.R. 394 (Alta.); Lampel v. Berger (1917), 40 O.L.R. 165, 38 D.L.R. 47. In Bassi v. Sullivan (1914), 32 O.L.R. 14, 50 C.L.J. 539, 18 D.L.R. 452, the court said that "an alien enemy is one whose sovereign is at enmity with the Crown of England." And in Viola v. MacKenzie Mann & Co. (1915), 24 Que. K.B. 31, 24 D.L.R. 208 (C.A.) Lavergne J. said: "An alien should be considered a foreign or alien friend, unless other reasons are given for the contrary than the place of birth." See also Raguez v. Harbour Commissioners of Montreal (1916), 18 Que. P.R. 98, 30 D.L.R. 662 (C.A.), where Archambeault J. pointed out that the subjects of an enemy nation residing in Canada are not necessarily "alien enemies." Residence in the enemy country is the deciding factor. Aliens cannot be deprived of civil rights and privileges until some definite act of hostility by them is proven. See Canadian Stewart Co. v. Perth (1916), 25 Que. K.B. 158. In R. v. McMahon (1866), 26 U.C.Q.B. 195 (C.A.) Draper C.J. said: "A natural-born subject may, by his own voluntary acts, deprive himself of the exercise of rights which in that capacity he might otherwise claim. Thus, if he voluntarily resides and carries on business in an enemy's country, he is disqualified as an alien enemy to sue in our Courts. If therefore a subject can by his own act deprive himself of a privilege inherent as his birthright, we do not see how the fact of his being a natural born subject can be set up so as to prevent his being treated as a naturalized citizen of a foreign state, if as a fact he has become so naturalized." For an interesting case dealing with the question whether a person comes within the class of "alien enemy" see Gage v. Reid (1917), 38 O.L.R. 514, 34 D.L.R. 46 (C.C.A.). See also Myers v. Teller (1915), 7 O.W.N. 834, 8 O.W.N. 414; cf. Fabry v. Finlay (1916), 50 Que. S.C. 14, 32 D.L.R. 673.



Porter v. Freudeberg Great Britain: Court of Appeal [1915] 1 K.B. 857 LORD READING C.J.: The main questions to be considered are, first, the capacity of alien enemies to sue in the King's Courts; secondly, their liability to be sued; thirdly, their capacity to appeal to the Appellate Courts, and, generally, their right to appear and be heard in the King's Courts. There is much learning to be found in the books in reference to the enforcement of civil rights of alien enemies. Pronouncements on the subject were delivered by great judicial authorities during the Napoleonic Wars and again during the Crimean War, and in reference to incidents arising out of those wars. Happily, with the exception of the South African War, there has been hitherto no occasion in recent times for the Courts to examine this branch of legal knowledge. It may therefore be useful to refer to some of the early authorities, although the main propositions of law have long been well settled. It is necessary at the outset to keep clearly in mind the meaning of the term "alien enemy5' when used in reference to civil rights and liabilities. Its natural meaning indicates a subject of enemy nationality, that is, of a State at war with the King, and would not in any circumstances include a subject of a neutral State or of the British Crown, but that is not the sense in which the term is used in reference to civil rights. Ever since the great case of The Hoop (1C. Rob. 196) the law has been firmly established as pronounced in the judgment of Lord Stowell (then Sir William Scott) that one of the consequences of war was the absolute interdiction of all commercial intercourse or correspondence by a British subject with the inhabitants of the hostile country except by permission of the Sovereign. (See also Potts v.Bell, per Lord Kenyon CJ. ((1800) 8 T.R. at p. 561).) This branch of law was again considered as a result of the Crimean War, and Willes J., in delivering the judgment of the Court of Queen's Bench in Esposito v. Bowden ((1857) 7 E. & B. at p. 779), said: "It is now fully established that the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country and that such intercourse, except with the licence of the Crown, is illegal." This law was founded in earlier days upon the conception that all subjects owing allegiance to the Crown were at war with subjects of the State at war with the Crown, and later it was grounded upon public policy, which forbids the doing of acts that will be or may be to the advantage of the enemy State by increasing its capacity for prolonging hostilities in adding to the credit, money or goods, or other resources available to individuals in the enemy State. Trading with a British subject or the subject of a neutral State carrying on business in the hostile territory is as much assistance to the alien enemy as if it were with a subject of enemy nationality carrying on business in the enemy State, and, therefore, for the purpose of the enforcement of civil rights, they are equally treated as alien enemies. It is clear law that the test for this purpose is not nationality but the place of carrying on the business: Wells v. Williams (1 Ld. Raym. 282); McConnell v. Hector, per Lord Alvanley CJ; (3 Bos. & P. 113) \Janson v. Driefontein Consolidated Mines ([1902] A. C. at p. 505), per Lord Lindley. When considering the enforcement of civil rights a person may be treated as the subject of an enemy State,



notwithstanding that he is in fact a subject of the British Crown or of a neutral State. Conversely a person may be treated as a subject of the Crown notwithstanding that he is in fact the subject of an enemy State. As Lord Lindley said in Janson v. Driefontein Consolidated Mines ([1902] A.C. at p. 505): "When considering questions arising with an alien enemy it is not the nationality of a person but his place of business during war that is important. An Englishman carrying on business in an enemy's country is treated as an alien enemy in considering the validity or invalidity of his commercial contracts. Again the subject of a State at war with this country but who is carrying on business here or in a foreign neutral country is not treated as an alien enemy; the validity of his contracts does not depend on his nationality nor even on what is his real domicile but on the place or places in which he carries on his business or businesses." Lord Lindley's statement was not intended to be, and is not, exhaustive. His Lordship, for the purposes of the appeal then before the House of Lords, was considering the character of a trading corporation, and did not purport to deal with persons residing but not carrying on business in the enemy territory. Such a person is equally treated as an alien enemy provided he is voluntarily resident there, having elected to live under the protection of the enemy State. For the purpose of determining civil rights a British subject or the subject of a neutral State, who is voluntarily resident or who is carrying on business in hostile territory, is to be regarded and treated as an alien enemy and is in the same position as a subject of hostile nationality resident in hostile territory. Professor Dicey, in his treatise on Parties to an Action, at p. 3, states the law accurately in the following proposition: "Under the term 'alien enemy' are included not only the subjects of any State at war with us, but also any British subjects or the subjects of any neutral State voluntarily residing in a hostile country." In ascertaining the rights of aliens the first point for consideration is whether they are alien friends or alien enemies. Alien friends have long since been, and are at the present day, treated in reference to civil rights as if they were British subjects, and are entitled to the enjoyment of all personal rights of a citizen, including the right to sue in the King's Courts. Alien enemies have no civil rights or privileges unless they are here under the protection and by permission of the Crown: Blackstone, 21st ed., voL 1, c. 10, p. 372. Indeed, under the ancient common law, "debts and goods found in this realm belonging to alien enemies belong to the King and may be seized by him": see Hale's Pleas of the Crown, vol. 1, p. 95. That the enemy's property was liable to confiscation is also shown by the privilege granted under c. 30 of Magna Charta to merchant strangers coming into this realm, whereby the privilege was conceded to merchants of a land making war against the Sovereign and found in this realm that they should be attached without harm of body or goods until it became known how English merchants were treated in the hostile State. If well treated, the enemy merchants were to be well treated here, so that confiscation of the enemy merchants' property would only occur by way of reprisal or retaliation. Whether the right of the Sovereign to confiscate any of the alien enemies' goods or debts in this realm was ever exercised or not (see Wolff v. Oxholm ((1817) 6 M. & S. 92, at p. 102), per Lord Ellenborough), there can be no doubt about the existence of the right: see Attorney-General v. Weeden ((1699) Parker, 267). Gibbs C.J. in Antoine v. Morshead ((1815) 6 Taunt. 237) affirmed the principle that the Crown during the war may lay hands on debts due to the alien enemy, but if it



do not, then on the return of peace the rights of the contracting alien are restored and he may himself sue to recover the debts: see also Walford's Parties to Action (mentioned later herein), at p. 653, and the authorities there cited from 19 Edw. 4 to Antoine v. Morshead ((1815) 6 Taunt 237). The right of confiscation is only of importance to trace the history and foundation of our common law, since there is manifestly no question of exercising this right. The severity of the common law rule was, however, in early days relaxed in favour of those who had the King's permission to come here. So long ago as the year 1454 it would follow from the reported observations of Ashton J. (Year Book, 32 Hen. 6, 23 (b) 5) that if an alien enemy came here under the King's licence or a safe conduct he could maintain an action for trespass if any person took his goods from his house. Later, in 1697, in the case of Wells v. Williams (1 Ld. Raym. 282 (also reported in 1 Lutw. 34, and 1 Salk. 46) ) it was held that although an alien enemy came here in time of war and without a safe conduct yet, if he has continued to reside here by the King's leave and protection, he may be allowed to sue in the King's Court, for such a right is consequent to the protection offered him. In Coke upon Littleton (19th ed. vol. 1, p. 129 (a)) it is stated that an alien enemy cannot maintain a real or personal action until both nations are at peace. An editorial note (A.D. 1832) adds that "On declaring war the King usually in the proclamation of war qualifies it by permitting the subjects of the enemy resident here to continue so long as they peaceably demean themselves; and without doubt such persons are to be deemed alien friends in effect." The passage in Bacon's Abridgement (7th ed. vol. 1, p. 183) dealing with aliens is of similar effect: "If an alien enemy comes here sub salvo conductu he may maintain an action; so if an alien army comes here in time of peace per licentiam domini regis as the French protestants did and lives here sub protectione and a war afterwards happens between the two nations he may maintain an action, for suing is but a consequential right of protection; and therefore an alien enemy who is here in peace under protection may sue a bond; aliter of one commorant in his own country." This passage is mainly based upon Wells v. Williams (1 Ld. Raym. 282 (also reported in 1 Lutw. 34, and 1 Salk. 46)) and Sylvester's Case (7 Mod. 150). The decision in this lastmentioned case threw no doubt upon the principle of law, but held that in an action by an alien enemy, and when there was a plea in abatement of "alien enemy," it was incumbent on him to plead a replication that he was here under the protection of the Crown. Towards the end of the eighteenth century Lord Kenyon C.J., in delivering the judgment of the Court of King's Bench in Brandon v. Nesbitt ((1794) 6 T. R. 23), said that "An action will not lie either by or in favour of an alien enemy . . ." and that the Court "had not found a single case in which the action had been supported in favour of an alien enemy. For though it was held in Ricord v. Bettingham ((1765) 3 Burr. 1734) that the action by an enemy on a ransom bill might be maintained, the action was not brought until peace was restored, which gets rid of the objection." So clear a statement of the law was made by Lord Alvanley C.J. in McConnell v. Hector (3 Bos. & P. 113) that we quote it in extenso: "Most certainly every natural-born subject of England has a right to the King's protection so long as he entitles himself to it by his conduct, but if he live in an enemy's country he forfeits that right. Though these persons may not have done that which would amount to treason, yet there is an hostile adherence and a commercial adherence; and I do not wish to hear it argued that a person who lives and carries on trade under the protection and for the benefit of a



hostile State, and who is so far a merchant settled in that State that his goods would be liable to confiscation in a Court of prize, is yet to be considered as entitled to sue as an English subject in an English Court of justice. The question is whether a man who resides under the allegiance and protection of an hostile State for all commercial purposes is not to be considered to all civil purposes as much an alien enemy as if he were born there? If we were to hold that he was not, we must contradict all the modern authorities upon this subject. That an Englishman from whom France derives all the benefit which can be derived from a natural-born subject of France should be entitled to more right than a native Frenchman would be a monstrous proposition. While the Englishman resides in the hostile country he is a subject of that country, and it has been held that he is entitled to all the privileges of a neutral country while resident in a neutral country." The later cases of Boulton v. Dobree (2 Camp. 163) and Aldator v. Smith (3 Camp. 245), whilst affirming the principle already stated, decided that the burden was upon the alien enemy to establish that he was within this realm by the licence of the King, and, as the evidence was not sufficient in either case to discharge this burden, there was a nonsuit in both cases. During the Napoleonic wars it was thus firmly established that an alien enemy, unless here by permission of the King, could not sue in the King's Court. In a case arising out of the Crimean war, Alcinous v. Nigreu (4 E. & B. 217), the principle was again affirmed. The point arose on demurrer to the plea that the plaintiff was residing in this kingdom without the licence, safe conduct, or permission of the Sovereign. Lord Campbell C.J. held that the Court must take judicial notice that our Sovereign was at war with the empire of Russia and was of opinion that, as the contract was entered into before the war, the plaintiff could enforce it when peace was restored, but that by the law of England, so long as hostilities prevailed, a Russian subject who was here without the permission, express or implied, of the Sovereign could not sue here. In Walford's treatise on the Law respecting Parties to Actions, published 1842, there is a chapter in vol. 1, p. 647, dealing with disabilities of civil origin which well repays close and diligent study. When treating of alien enemies the learned author at p. 650 thus states the law: "Alien enemies are distinguishable according as they are under the King's special protection or not. If an alien enemy came here under a safe conduct or is commorant here by the King's licence and under his protection he seems to stand in the same position as to the right of maintaining actions in our Courts as an alien friend, a right of suing being an incidental right to protection"—that is, he is no longer under the disability attaching to an alien enemy. Whenever the capacity of an alien enemy to sue or proceed in our Courts has come up for consideration, the authorities agree that he cannot enforce his civil rights and cannot sue or proceed in the civil Courts of the realm. The case of Ex pane Boussmaker (13 Ves. 71), however, requires examination. In that case Lord Erskine, then Lord Chancellor, allowed alien enemies to enter a claim as creditors in a petition under a commission for bankruptcy on the ground that upon a return to peace the right to prove would survive, inasmuch as the debt arose from a contract made when the two nations were at peace. He came to the conclusion that it would be contrary to justice to confiscate the dividend, and as the right to recover was only suspended, that was not a reason why the fund available for the creditors should be divided among the other creditors without regard to the alien enemies' suspended rights. He therefore ordered that a claim be entered and the dividend of the alien enemy be reserved. The contention



to which the Lord Chancellor there gave effect was that, in the administration of the fund in bankruptcy, the other creditors should not be permitted to take a larger dividend by the exclusion of the alien enemy. If the alien enemy could not take the dividend the Crown would be entitled to it. Under these circumstances the Lord Chancellor admitted, not a proof, but a claim. The result would be that there would be divided amongst the other creditors the differential sum remaining after reserving the dividend on the claim; and that, as his Lordship said, "upon the return of peace the right would survive and it would be contrary to justice to confiscate the dividend." This differs from a case in which the alien enemy conies into Court to prove the existence of the debt and claim judgment for the amount. It must not, however, be regarded as an authority for the proposition that an alien enemy can present a petition to the Court and be heard upon it. There was no argument before the Lord Chancellor as to whether such a petition could be presented by an alien enemy, and the point does not appear to have been considered. According to the report of the case, no interest was represented before his Lordship except that of the petitioner, but from the record, which we have had the opportunity of examining, it appears that the assignees in bankruptcy were also represented. The petitioners' argument was that there was a valid debt, and that therefore a sufficient amount should be reserved from the fund to be distributed. The Lord Chancellor, having expressed the opinion that the contract was valid and the debt due, had nevertheless become aware that the alien enemy would be entitled on restoration of peace to payment of a dividend upon his debt, and his Lordship thought the right and convenient course was to enter the claim and reserve the amount until after the war. It is as if a trustee in bankruptcy, about to distribute funds arising from the debtor's estate to the creditors, received notice of a claim by an alien enemy and, having satisfied himself as to its validity, kept in his hands sufficient to pay a dividend on the debt after the conclusion of the war. The latest adjudication upon the alien enemy's right to sue is Princess Thurn and Taxis v. Moffitt ((1914) 31 Times L. 24), where Sargant J. held that the subject of an enemy State who was registered under the Aliens Restriction Act, 1914, as an alien and the subject of an enemy State is entitled to sue in the King's Courts. This decision is in our opinion clearly right. Such an alien is resident here by tacit permission of the Crown. He has by registration informed the Executive of his presence in this country, and has been allowed thereafter to remain here. He is "sub protectione domini regis." Having stated the common law of England in regard to the question of the alien enemy's right to sue in our Courts of law, we have now to consider whether the Hague Convention of 1907 upon the Laws and Customs of War on Land, article 23 (h) of chapter 1 of section 2 of the Annex entitled "Regulations respecting the Laws and Customs of War on Land," has any bearing upon the questions we have to determine. The heading of that section is "Of Hostilities." Section 3 is headed "Military Authority over the Territory of a Hostile State." Chapter 1 of section 2 is entitled "The Means of injuring the Enemy; Sieges and Bombardments." The articles in it are numbered from 22 to 28. Articles 22 and 23 are as follows: "Article 22. "Belligerents have not an unlimited right as to the choice of means of injuring the enemy.



"Article 23. "In addition to the prohibitions provided by special Conventions it is particularly forbidden "(a) To employ poison or poisoned weapons; "(6) To kill or wound by treachery individuals belonging to the hostile nation or army; "(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion; "(d) To declare that no quarter will be given; .-"(.£) To employ arms, projectiles or material calculated to cause unnecessary suffering; "(/) To make improper use of a flag of truce of the national flag or of the military insignia and uniform of the enemy as well as of the distinctive signs of the Geneva Convention; "(#) To destroy or seize enemy property unless such destruction or seizure be imperatively demanded by the necessities of war; "(/O To declare abolished, suspended or inadmissible the right of the subjects of the hostile party to institute legal proceedings. "A belligerent is likewise forbidden to compel the subjects of the hostile party to take part in the operations of war directed against their own country even if they were in the service of the belligerent before the commencement of the war." The remaining articles refer to ruses of war, bombardments, sieges, and assaults. The important paragraph is 23 (h): "To declare abolished, suspended or inadmissible the right of subjects of the hostile party to institute legal proceedings." It is desirable to give it also in French: "De declarer eteints, & suspenduS, ou non recevables en justice les droits et actions des nationaux de la partie adverse."... The meaning and force of the paragraph have been subjected to a considerable discussion by learned writers upon international law in this country, in America, and on the Continent, and the Attorney-General in the course of his argument in this case both by reference and by citation placed us in possession of the most valuable of the opinions of those writers. It would in our view serve no useful purpose to attempt here any elaborate examination of these opinions. Suffice it to say that the substantial question being whether the operation of this paragraph is or is not to abrogate the old rule (not peculiar to English law, though it has been more prominent in England than elsewhere) that an alien enemy's rights of action are suspended during the war, jurists of eminence have expressed widely divergent views upon the point, and this Court has given to those views its very careful consideration, We are all clearly of the opinion that the paragraph in question cannot be treated as effecting any such abrogation. ... It is to be regretted that the paragraph should be so drawn as to give rise to controversy as to its proper interpretation, but, for the reasons given, we think the paragraph has not the extended meaning claimed for it and does not affect the ancient rule of the English common law that an alien enemy, unless with special licence or authorization of the Crown, has no right to sue in our Courts during the war. Having now ^explained the meaning of "alien enemy" for civil purposes, and having decided that such alien enemy's right to sue or proceed either



by himself or by any person on his behalf in the King's Courts is suspended during the progress of hostilities and until after peace is restored (see also Flindt v. Waters ((1812) 15 East, 260), the next point to consider is whether he is liable to be sued in the King's Courts during the war. To allow an alien enemy to sue or proceed during war in the civil Courts of the King would be, as we have seen, to give to the enemy the advantage of enforcing his rights by the assistance of the King with whom he is at war. But to allow the alien enemy to be sued or proceeded against during war is to permit subjects of the King or alien friends to enforce their rights with the assistance of the King against the enemy. Prima facie there seems no possible reason why our law should decree an immunity during hostilities to the alien enemy against the payment of just debts or demands due to British or neutral subjects. The rule of law suspending the alien enemy's right of action is based upon public policy, but no considerations of public policy are apparent which would justify preventing the enforcement by a British or neutral subject of a right against the enemy. As was said by Bailhache J. in Robinson & Co. v. Continental Insurance Co. of Mannheim (Ante, p. 155, at p. 159), "To hold that a subject's right of suit is suspended against an alien enemy is to injure a British subject and to favour an alien enemy and to defeat the object and reason of the suspensory rule." In our judgment the effect would be to convert that which during war is a disability, imposed upon the alien enemy because of his hostile character, into a relief to him during war from the discharge of his liabilities to British subjects. It is very noteworthy that when dealing with the rights of alien enemies there is no shadow of doubt suggested in the books as to the right to sue alien enemies. More often there is no mention of it, but sometimes it is the subject of express reference and then always to the same effect, that the alien enemy can be sued during the progress of hostilities. Bacon's Abridgement, 7th ed., vol. 1, p. 183, asserts this liability of the alien enemy without doubt or hesitation. "The plea of 'alien enemy' is a bar to a bill for relief in equity as well as to an action at law, but it would seem not sustainable to a mere bill for discovery for as an alien enemy may be sued at law and may have process to compel the appearance of his witnesses so he may have the benefit of a discovery." This is an important passage in other respects also, and in our judgment it is a correct statement of the law. Waiford, in his valuable work above mentioned on Parties to Actions, at p. 656 says: "With respect to the liabilities of aliens, whatever be their description, whether friends or enemies, whether with or without protection, they seem to be open to be sued just the same as native subjects, there being nothing in their character either originally to incapacitate them from contracting an obligation, or committing a civil injury, or to shelter them in any action brought against them in consequence." Sect. 53 of Story's Commentaries on Equity Pleading is of similar effect: "An exception might perhaps be allowed where the alien enemy is the defendant in a suit at law in the country where he brings the bill for discovery; since it may be the only effectual means on his part to establish a perfect defence to the suit at law." This passage shows that in the opinion of the learned author an alien enemy might be defendant in a suit. In Lush's Practice (1865, 3rd ed.), vol. 1, p. 6, it is stated that outlaws, aliens, enemies, felons, &c., are all liable to be sued. Professor Dicey in his work on Parties to Actions has a passage to the same effect. Walford, at p. 666 of the treatise already mentioned, also expresses the opinion that a person attainted, outlawed, or excommunicated is open to be sued like an ordinary person, as he has already observed, like an alien friend or enemy. . . .The real difficulty that arises in seeking



to enforce a right against an alien enemy is that of fixing him with proper notice of the suit and the proceedings in the action, with which we will deal later. Once the conclusion is reached that the alien enemy can be sued, it follows that he can appear and be heard in his defence and may take all such steps as may be deemed necessary for the proper presentment of his defence. If he is brought at the suit of a party before a Court of justice he must have the right of submitting his answer to the Court. To deny him that right would be to deny him justice and would be quite contrary to the basic principles guiding the King's Courts in the administration of justice. Equally it seems to result that, when sued, if judgment proceed against him, the appellate Courts are as much open to him as to any other defendant. It is true that he is the person who may be said in one sense to initiate the proceedings in the appellate Court by giving the notice of appeal, which is the first necessary step to bring the case before that Court; but he is entitled to have his case decided according to law, and if the judge in one of the King's Courts has erroneously adjudicated upon it he is entitled to have recourse to another and an appellate Court to have the error rectified. Once he is cited to appear he is entitled to the same opportunities of challenging the correctness of the decision of the judge of first instance or other tribunal as any other defendant. The decision in McVeigh v. United States (11 Wallace, 259) in the Supreme Court of the United States is to the same effect. In that case the defendant, who was appellant in the circumstances already stated, brought writ of error in respect of the judgment of the District and Circuit Courts and succeeded in reversing the judgments of those Courts. We must now consider whether the same conclusion is reached in reference to appeals by an alien enemy plaintiff, that is, a person who before the outbreak of war was a plaintiff in a suit and then by virtue of his residence or place of business became an alien enemy. As we have seen, he could not proceed with his action during the war. If judgment had been pronounced against him before the war in an action in which he was plaintiff, can he present an appeal to the appellate Courts of the King? We cannot see any distinction in principle between the case of an alien enemy seeking the assistance of the King to enforce a civil right in a Court of first instance and an alien enemy seeking to enforce such right by recourse to the appellate Courts. He is in either case seeking to enforce his right by invoking the assistance of the King in his Courts. He is the "actor" throughout. He is not brought to the Courts at the suit of another, it is he who invokes their assistance; and it matters not for this purpose that a judgment has been pronounced against him before the war. When once hostilities have commenced he cannot, so long as they continue, be heard in any suit or proceeding in which he is the person first setting the Courts in motion. If he had given notice of appeal before the war, the hearing of his appeal must be suspended until after the restoration of peace. Dumenko v. Swift Canadian Company Limited Canada: Supreme Court of Ontario (1914), 32 O.L.R. 87 FALCONBRIDGE, C.J.K.B.: The plaintiffs are inhabiting and commorant (per Lord Ellenborough CJ. in Le Bret v. Papillon (1804), 4 East 502, at p. 506) in Austria under the allegiance of the Emperor of Austria, between whom and our King a war has been commenced and is now being carried on. The plaintiffs are, therefore, enemies of the King. At the time



when they brought this action, they, as well as the Emperor, were at peace and in amity with our King and his subjects. On July 31, the defendants obtained the usual praecipe order for security of costs. On September 21, the Master in Chambers made an order extending the time for the giving of security by the plaintiffs until Monday, October 19, and further ordering that, in default of such security being given, this action should stand dismissed. The plaintiffs now move in Chambers for an order staying all proceedings so long as it may be ordered or for such further or other order as may seem meet or just. The defendants gave notice that on the return of the plaintiffs' motive they would move that the action be dismissed on the ground that the plaintiffs are alien enemies. As to the plaintiffs' notice of motion, I cannot see why the plaintiffs ought to be in any better position by reason of their having become alien enemies than they would be under ordinary circumstances; and their motion is, therefore, dismissed, and the dismissal of the action follows in pursuance of the Master's order. As to the defendants' motion, it is quite clear upon the authorities that the plantiffs, having become alien enemies, ought to be barred from further having and maintaining this action. See Le Bret v. Papillon, 4 East 502; Brandon v. Nesbitt (1794), 6 T.R. 23; Mews' Digest, vol. 8, pp. 210, 211. The plaintiffs' action is, therefore, on this ground also, dismissed with costs. This dismissal is not necessarily—and I do not mean it to be—a bar to a subsequent action in respect of the same matter after peace shall have been declared: Holmstead & Langton's Judicature Act, 3rd ed., p. 636. NOTES See also Dangler v. Hollinger Gold Mines (1915), 23 D.L.R. 384 (Ont. S.C.) (an action under the Ontario Fatal Accidents Act cannot be brought by the administrator of the estate of a deceased person for the benefit of enemy aliens); Cremidas v. B.C. Electric Railway Co. Ltd., [1919] 2 W.W.R. 549, 27 B.C.R. 232 (no action under the British Columbia Families Compensation Act for the benefit of the deceased's mother, an alien enemy, residing out of Canada); cf. Oskey v. City of Kingston (1914), 20 D.L.R. 959, 32 O.L.R. 190 wh&re it was held that a workman's widow and children, although of an enemy nation, so long as they reside in Ontario and do not contravene the provisions of the Proclamation of August 13, 1914, may proceed with an action of damages instituted before the war; Harasymczuk v. Montreal H. & P. Co. (1916), 25 Que. K.B. 252; and see Canadian Stewart Co. v. Perth (1916), 25 Que. K.B. 158 (action by widow refused); Gusetu v. Laing (1915), 48 Que. S.C. 427 (no right of action); Korziwiski v. Harris Construction Co. (1916), 18 Que. P.R.97.

Luczycki v. Spanish River Pulp and Paper Mills Co. Canada: Ontario Supreme Court (1915), 34 O.L.R. 549 25 D.L.R. 198, reversing 8 O.W.N. 616 BOYD C.: On motion made to dismiss this action, on the ground that the plaintiff is an alien enemy, and therefore not competent to maintain this action, or in the alternative for failure to prosecute the action, an order was made by the Senior Registrar of the High Court Division, dismissing the action with costs, without prejudice to bringing another action after peace had been declared between Austria and the United Kingdom. From this the present appeal has been taken. The action is in tort, under Lord Campbell's Act, by the plaintiff, who resides in Galicia, and it was begun in June, 1913. On June 27, an order



for security for costs was obtained, and on September 3, 1913, the sum of $200 was paid into Court in response thereto. On September 13, issue was joined; and in December, 1913, an application was made by the plaintiff for a commission to issue to take evidence in Austria. In February, 1914, such commission was issued, and sent through the Austrian Consul to the local Court in Galicia, but, it is said, owing to the outbreak of hostilities in August, 1914, no return thereto has as yet been made. The learned Registrar held that Le Bret v. Papillon, 4 East 502, was directly in point; and, as that case had been followed in Dumenko v. Swift Canadian Co. Limited, 32 O.L.R. 87, he, acting in conformity with that decision, dismissed the action with costs. Having regard to many conflicting earlier English decisions, and the rather uncertain state of the practice, and the distinction which obtains in this case, I do not think I am bound to follow or to extend the Dumenko case. A very clear line of division is to be marked as to cases where the alien plaintiff is rightly in Court and has a vested right of action as an alien friend before that character has been transformed by war to that of an alien enemy. Sufficient allowance has not been made for that in the case followed by the Registrar. The Dumenko case, as stated in the judgment, is founded on Le Bret v. Papillon and Brandon v. Nesbitt (1794), 6 T.R. 23. Now in Brandon v. Nesbitt the plaintiff was an alien enemy at the outset, and so was never rightly in Court. Le Bret v. Papillon is in point, for there the action was rightly brought, but its course was intercepted by declaration of war. The defendant's contention was made by way of dilatory plea, and the judgment was that the plaintiff should be barred from further having and maintaining the action. Nothing is said as to costs, and in form the action was not dismissed. In the Dumenko case, the judgment may well be rested on the fact that the plaintiff was in default in giving security for costs. By the order, if security was not given the action was to be dismissed. The plaintiff, the alien enemy, moved to obtain an extension of time, which favor will not be granted to an alien enemy, and the action was well dismissed with costs. There was a concurrent motion to dismiss the action because of the plaintiff being an alien enemy, and the learned Chief Justice also dismissed with costs the action on this ground—therein exceeding the relief granted in Le Bret v. Papillon. A distinctive point in the case in hand is that security for costs had been paid into Court. It is said that this money was derived from the Austrian Consul: that does not seem material; the money was paid into Court on behalf of the plaintiff and as by her agent, and it was paid in with the intent that the action should be duly prosecuted to an issue on the merits. To dismiss the action with costs would enable the defendants to lay hands on this money in Court, and so to penalize the plaintiff for no fault of her own, and giving an advantage to the defendants not earned by them. I would adopt an observation of Williams, J., in an alien case, Shepeler v. Durant (1854), 14 C.B. 582, 583, and say that so to deal with this fund in Court would be "manifestly contrary to justice and good faith." The plaintiff in this case was a resident of Galicia, in Austria, before the war broke out, and sued as well she might, as an alien friend, but after the cause was at issue, and pending the execution of a foreign commission, the situation was changed by declaration of war with Austria, and the plaintiff thereupon, as an alien enemy, became personally incapacitated to pro^ ceed further in the action. But this was only a temporary incapacity, which would end with the close of the war.



A new starting-point in regard to procedure and proceedings in the Courts in actions by or against alien enemies during a state of war is to be found in the decision of a very strong Court of eight Judges (the attorneyGeneral also acting as amicus curiae), which was delivered by Lord Reading, L.C.J., in Porter v. Freudenberg, [1915] 1 K.B. 857. The enunciation of the law in this case was expressly declared to be undertaken in order to serve as a guide to the solution of the present day problems (p. 866). This leading case establishes these propositions, among many others: that an alien enemy cannot enforce his civil rights and cannot sue or proceed in the civil Courts of the realm (p. 873); the mere fact of war operates ipso facto to suspend any rights of action which at the time of outbreak of war any alien enemy may possess (p. 877); the rule of law suspending the alien enemy's right of action is based upon public policy, to wit, that the alien enemy is not to have the advantage of enforcing his rights by the assistance of the King with whom he is at war (p. 880); the disability is impressed upon the alien enemy because of his hostile character (p. 880). In the case of a person, plaintiff before the outbreak of war, who thereby became an alien enemy, he cannot proceed with his action during the war. When once hostilities have commenced, he cannot, so long as they continue, be heard in any suit or proceeding in which he is the person first setting the Court in motion. If he had given notice of appeal before the war, the hearing of his appeal must be suspended until after the restoration of peace (p. 884). The earlier cases show that the fact of the plaintiff becoming during action an alien enemy merely operated in suspension of the litigation, and the question was usually raised by plea in abatement or by way of puis darrein continuance. There was merely temporary incapacity to go on with the action, and further proceedings remained in abeyance till the impediment was removed by the closing of the war: Harman v. Kingston (1811), 3 Camp. 150; Flindt v. Waters (1812), 15 East 260. All these dilatory pleas have become obsolete, and are in fact abolished in this country. The convenient remedy now applicable is a stay of proceedings under the Judicature Act, R.S.O. 1914, ch. 56, sec. 16 (f), "either generally, or so far as may be necessary for the purposes of justice." In the last edition of Bullen & Leake, 1915, 7th ed., p. 496, the author says: "If the plaintiff was an enemy when the contract was made, this is a defense to an action on the contract, as the contract was illegal. If he becomes an alien enemy after the making of the contract, the defendant should, it seems, apply for a stay of proceedings." In the last edition of DanielPs Chancery Practice, 8th ed. (1914), vol. 1, p. 83, it is said: "It does not appear what would be the effect of a war breaking out between the country of the plaintiff and this country after the commencement of the action: but from analogy to what was formerly the practise with regard to outlawry it is probable that under such circumstances the proceedings would be stayed." In Trotter's Law of Contract during War, 1914, his opinion is that "if the plaintiff becomes an alien enemy subsequently to the commencement of the action it would seem that the case can either be dismissed (Alcinous v. Nigreu (1854), 4 E. and B. 217), or proceedings stayed till the restoration of peace (see Shepeler v. Durant, 14 C.B. 582)" (p. 54). This same text appears in the supplement to that volume in 1915, at p. 66, and this further is added: "In Craig Line Steamship Co. Limited v. North British Storage Co., (1914) 2 Scots, L.T. 326, the action was sisted on the prisoner



becoming an enemy during its dependence." "But this alternative" (he goes on) "only exists when the contract is otherwise valid, and the sole question is its enforceability during war." Here, I would note, there is no matter of contract involved; the action is in tort, under Lord Campbell's Act, and the plaintiff had a vested right of action and had commenced her action before the war. In Quebec it has been held that when the action by an alien friend has been begun before the war the Court will not dismiss the case by reason of the war disenabling further progress by the alien enemy, but will order the proceedings to be suspended "par force majeure" till the close of the war: De Kozarijouk v. B. & A. Asbestos Company (1914), 16 Q.P.R. 213, 218. The matter of procedure has been fully considered in Scotch cases, and the uniform ruling is that an action brought by an alien friend cannot be further pressed when by declaration of war the plaintiff has become an alien enemy, and the proper course is to "sist" the action, i.e., to stay its further prosecution, pending the war, and this is stated to be "in conformity with the presumed wishes of the King"; the Court "does not allow an enemy to be treated in a manner contrary to natural justice": Orenstein & Koppel v. Egyptian Phosphate Co. Limited, (1914) 2 Scots L.T. 293, 297. And in the later case cited by Trotter, the judicial decree was to "sist process in hoc statu, reserving ail questions of expenses": November, 1914, 2 Scots L.T. 326. Such also has long been settled in the American Courts. The analogy between cases of outlawry and cases of disability from the operation of war is recognized, and in Levine v. Taylor (1815), 12 Mass. 7, 9, 10, it is said: "If the disability occurs, after the commencement of the action, it only suspends the proceedings quousque, etc.; and, after the disability is removed, the plaintiff may recontinue the suit. . . . Accordingly, in several cases, where the action was commenced before the declaration of war, this Court has expressed an opinion that it produced only a temporary disability; and, at their recommendation, the parties have agreed to continuances without costs on either side; in order to avoid the trouble and expense of new process at the termination of the war." See also Hutchinson v. Brock (1814), 11 Mass. 119. I think that these are well-considered words, and to this issue the procedure under English law has been steadily tending, as appears from the citations already given from legal authors. The latest deliverance is to be found in the Law Quarterly Review for April, 1915, which was suggested by the leading case I have so largely quoted from in 1915. It is said in the Law Quarterly Review for April, 1915, vol. 31, p. 167: "It would seem that in the case of an alien plaintiff who has become an enemy since the writ was issued, one of two things may happen: (1) the proceedings may be stayed on the defendant's application, and the plaintiff can move to have the stay removed when peace is concluded; or (2) if the action comes on for trial it may be dismissed, reserving to the plaintiff the right to bring a fresh action after the termination of the war." So long as the plaintiff remained quiescent during the war, no order to stay proceedings till the close of the war was really needed. If the plaintiff ventured to make any move in the case, it was at her own risk. Should any intervention of the Court be asked, it is not to be by way of dismissal (when everything is tied up by the war) but at most by way of staying the proceedings till the termination of the war, and this without costs, or, as in the Scottish case, with costs reserved.



The present appeal should succeed, and owing to the state of the authorities, with costs to the plaintiff in any event, and it does not appear fitting that any other order should be made. The case, so far as it has developed, will remain in statu quo, to be taken up and continued after the war is over. It either party chooses to take out an order to stay proceedings till the war ends, it may be issued—but it is only expressing what the law declares. Topay v. Crow's Nest Pass Coal Company Canada: British Columbia Supreme Court (1914), 18 D.L.R. 784, 7 W.W.R. 223, 29 W.L.R. 555, 20 B.C.R. 235 GREGORY J.: Although there is no doubt that at common law an alien enemy was denied the right of appealing to our Courts for the enforcement of his contractual rights, etc., this rule has long been modified when he is resident in this country by licence or under the protection of the Crown: see 1 Hals. pp. 20 and 310; and I do not think that the expression of Lord Lindley in Jansonv. Driefontein Consolidated Mines Limited, [1902] A.C. 484, is, when examined, at all inconsistent with this. He was then dealing with the circumstances of the case before him, and he cited Le Bret v. Papillon ^(1804), 4 East 502, as the case which established the rule, but an examination of that case shows that the plaintiff there was resident in the foreign country at the date of his action, and he was suing on a judgment obtained in the Courts of his own country. In the present case the plaintiff has been resident in Canada for a long time and peaceably pursuing his usual occupation. In Aldnous v. Nygreu (1854), 4. E. & B. 217, the judgment of Lord Campbell, C.J., in giving judgment against the alien enemy shows clearly that he relied on the fact that the plaintiff though then in England was not there with the permission of any one entitled to act for the sovereign. In the present case I am unable to read the Order-in-Council of August 15, 1914 (appearing in the Gazette of August 22, 1914, p. 617) together with that of August 7, 1914 (appearing in the Gazette of August 15, 1914, p. 531) as anything but an express permission to Germans and Austrians to reside in Canada so long as they pursue their ordinary avocations in a peaceful and quiet manner, etc. The Order of August 15 recites that there are many such persons quietly pursuing their various avocations in various parts of Canada, and it is desirable that such persons should be allowed to continue in such avocations without interruption. It then goes on to proclaim that all such persons, "so long as they quietly pursue their ordinary avocations be allowed to continue to enjoy the protection of the law and be accorded the respect and consideration due to peaceful and law-abiding citizens; and that they be not arrested," etc. In view of the foregoing it appears to me that it would be a denial of such protection to permit a coal miner, for example, to work at his usual occupation of coal mining and deny him the right to sue for his wages if they are not paid, or, as in the present case, to deny him the right to maintain an action for personal injuries sustained in his work as a miner, and caused, as he alleges, by the negligence of the defendant, as during times of peace he has enjoyed this privilege, and the order proclaims that he shall be allowed to continue, etc. The application will, therefore, be dismissed. Cost to the plaintiff in any event of the cause.



NOTES See also Jarosz v. G.T.P. (1914), 7 W.W.R. 816 (Alta.); Pescovitch v. Western Canada Flour Mills (1914), 7 W.W.R. 454, 18 D.L.R. 786, new trial ordered 8 W.W.R. 1146, 31 W.L.R. 921, 25 Man. R. 575, 23 D.L.R. 310. In Viola v. Mackenzie, Mann & Co. (1915), 24 D.L.R. 208, 24 Que. K.B. 31, a similar case arising ex contractu, Carrol J. said: "The restriction of the right to sue according to the majority of writers who have dealt with the matter does not result from the capacity of the foreigner, but from the fact that the enemy country will profit by executing a judgment in his favor. There exists, on the contrary, a presumption, as I have said, that the execution of contracts between an alien residing here and a British subject will be to the advantage of our country, . . . "... It would be an improper state of affairs if peaceable foreigners, enjoying the protection of our laws and contributing on their part to the progress of our country, would not have the right to recover what was due to them, pending a period, let us say, of two years, for the reason merely that they were subjects of a state at war with us. If they injure us, if they wish to aid the enemy state, financially or otherwise, our laws offer all needed protection against them. If they do not injure us, they should have the benefit of our law, the same as others. . . ." This case was approved in Raguez v. Harbour Commissioners of Montreal (1916), 30 D.L.R. 662, 18 Que. P.R. 98. See also /. G. White Engineering Corpn. v. Can. Car & Foundry Co. (1940), 43 Que. P.R. 419 and Newman v. Bradshaw (1916), 28 D.L.R. 769 where the plaintiff, a person of German birth, resident in the United States, issued a writ of summons against defendant who moved to set aside the writ on the ground that the plaintiff was an alien enemy. Clement J. said: "In the case of an alien resident here, subject by birth of the enemy State, prima facie, he cannot sue. . . . If in such case, where this country has control of the person of the would-be plaintiff, a special license is necessary, a fortiori in a case such as this the presumption of desire to act upon his allegiance on the part of the alien enemy resident in.a neutral country where this country has absolutely no control over his action should preclude the King's Court from affording such an alien any assistance, ftagranto hello" In Harasymczuk v. Montreal L.H. & P. Co. (1916), 25 Que. K.B. 252, the plaintiff, an alien interned during the war because he was unemployed and a burden upon the community, was allowed to sue the defendant for loss caused to him by the death of his son through the fault of the defendant. See also Swail v. Trieber (1916), 17 Que. P.R. 428. On the other hand in Canadian Stewart Co. v. Penh (1916), 25 Que. K.B. 158, Perih, an Austrian residing in Galicia, in the Austrian Empire, was unable to proceed in justice in Canada during hostilities on the ground of her residence in enemy territory. The court was of the opinion that it was not the fact that the plaintiff was an Austrian which prevented her from prosecuting, but the fact that she was residing in Austria. Per Sir Horace Archambeault, C.J.: "An enemy cannot claim the assistance of the courts of a State with which he is at war to establish his right and to ensure its execution, but there is no consideration which prevents a British subject exercising his right against an enemy, who must then of necessity be granted the right to defend himself in order to prevent a denial of justice and an enemy may even appeal a judgment given against him. In this case there is no enemy seeking to correct a judgment given against him, but there is an enemy who has put the court in motion and is now seeking to maintain his rights against a British subject. Plaintiff may have become the respondent on appeal but she still remains the claimant." Note that enemy aliens who are successful defendants should not be deprived of their costs on account of their nationality: Rydstrom v. Krom (1915), 7 W.W.R. 1290, 31 WX,R. 7, 21 B.C.R. 254, 21 D.L.R. 118.



Re Cimonian Canada: Ontario Supreme Court, 1915 23 D.L.R. 363 Twelve Armenians and one Macedonian, presumably Turkish subjects, made application for naturalization during the First World War, at which time they might have been regarded as alien enemies. MEREDITH, C.J.C.P.: . . . In dealing with naturalization matters, an alien enemy is the subject of a nation which is at war with the nation in which naturalization is sought; and that too is the general meaning of the words; and an alien friend in any part of the British Empire is a subject of a nation in amity with that empire. It is true that sometimes, for some purposes, an alien enemy is treated as if, and called, an alien friend, and even a British subject is treated as and sometimes called an alien enemy: see Porter v. Freudenberg, [1915] 1 K.B. 857; but that is really not correct, though quite convenient in the cases in which it occurs, actions to recover money or property, in which the test is not whether the plaintiff is an enemy or friend or alien subject, but is, to what use the money or property may be put if the Court should aid in its recovery; to a British subject living in the country which is at war with the British Empire, no aid will be given, the enemy might be benefited; to an alien enemy living in the Empire with the license of the King to trade there, or with any proclamation or other authorization tantamount to it, aid will be given, because the money or property recovered cannot be available to the enemy, but may be to the Empire. It is obvious that a British subject by merely living in an enemy country—sometimes he cannot get out—does not become an alien enemy; if he should, he would be a traitor and liable to be hanged. If a Turkish subject, each of these applicants is, and must be treated as, an alien enemy, in the consideration of his case. Then is the earlier enactment applicable to an alien enemy? Before considering the provisions of the enactment alone, with a view to answering that question, it is important to have in mind some indisputable facts bearing upon the subject: first, the fact that the concurrence of the "three Estates of the Realm" is necessary for the lawful admission of an alien into British allegiance; that nothing short of an Act of Parliament can authorize the naturalization in Great Britain, or in Canada, of any person. The power of the King to grant letters of denizenship, or liberty to trade, is, it need hardly be said, a thing of a character quite different from and one which falls far short of power to grant naturalization: second, that war revolutionizes the relationship existing between nations in peace, as well as the rights and privileges of an alien turned by war from an alien friend into an alien enemy. It has been said, by an eminent Judge, that an alien enemy is not civiliter mortuus, that he is under disabilities, and disabilities which may be largely removed by the King's license; and that is so, but still he remains an alien enemy: and third, that naturalization is a thing which no nation, in its own interests, should confer upon an alien enemy except with the utmost circumspection and caution, whilst very different considerations might apply to the case of an alien friend. . . . Naturalization in Canada has been, during the more than half a century under which it has been under my observation, really little, if anything, more than a matter of form. It could hardly be more than that having regard to the easy method by which it was attainable under the



Act [The Naturalization Act, R.S.C. 1906, c.^ 77] in question: affidavits of the applicant's residence and allegiance; a certificate,of a Commissioner for taking affidavits, a Justice of the Peace or Notary, or any other of the numerous persons authorized by the Act to give it, without any power in the Court to interfere unless some one opposed or objected in the manner before mentioned—a thing which in all my experience never happened. So that, if the Act be applicable to an alien enemy, it is something like an invitation to spies to provide themselves with the cloak of concealment which its provisions supply, giving to them aid in Canada, and, that which is worse, credentials which, in other parts of the Empire, are likely to be accepted, and relied upon with confidence. . . . And in the case of Ex. p. Little (1812), 2 Bro. (Perm.) 218, the whole subject was fully and well dealt with. The application in that case was under a provision of the naturalization laws to which the expressed provision against naturalization of an alien enemy was not applicable, yet a majority of the Court found no difficulty in applying such a rule to that case as a fundamental principle of the law respecting expatriation and naturalization. The learned Chief Judge stating in clear and forceful language the main reasons for that paramount underlying principle, namely, the impropriety of conferring citizenship, of the status of a subject, upon one who could not be claimed as a citizen or subject if he fell into the enemy's hands; the impropriety of any nation being a party to an act which might be treated as treason in the other party to that act, and which, if done by a subject of such nation, would be treason according to the laws of that nation; and the danger of admitting to the bosom of the nation an alien enemy in the stress arid emfoitterment of actual warfare; the danger of the nation taking a viper to its breast. Opposed to these direct rulings, and weighty indirect considerations, I am aware of one judicial opinion only, a ruling upon the very point, by Archambault, J., in a Circuit Court of the Province of Quebec: In re Herzfeld (1914), Q.R. 46 S.C 281. In the month of October last, that learned Judge considered, to use his own language, that "the quality of German or Austrian aliens, in the present state of affairs, is not an obstacle to their naturalization in Canada," under the enactment now in question. And his conclusions were based upon these three grounds, namely: (1) article 23 (b) of the Hague Convention of 1907; (2) that his functions, acting under sec. 19 of the Act in question, were merely "administrative," and so incapacity of an alien enemy to take suit did not apply; and (3) that, when commissioners or other duly authorized persons have administered the oaths of residence and allegiance and given their certificates, a Judge, acting as before mentioned, had no power to refuse to do his part in the naturalization proceedings. So that it is quite plain that the learned Judge did not consider in any manner the first and paramount question, whether the Act in question is at all applicable to an alien enemy; that he assumed that it was applicable to friend and foe alike, ,and acted in the cases before him accordingly; therefore, if his judgment stood alone, notwithstanding the great importance of uniformity of decision throughout Canada upon the subject, indeed the great importance of uniformity of laws and practise throughout the Empire upon the subject, I would not be justified in merely following his ruling. And, apart from that question, I am bound to disregard it, even if I agreed with him in the result, because the other authorities to which I have referred, one of them the Court of Criminal Appeals in England, require



that my conclusion should be the opposite of that reached by him. So, too, as I have shown, my conclusion, quite apart from the authorities, on the question whether the Act is applicable to an alien enemy or not, must have been the opposite of his; must have been that no alien enemy can be naturalized in Canada under the provisions of the Act in question; and I feel bound to add that I am also unable to agree with him on any of the three grounds upon which his judgment is based. As to the first of them, an unusually full Court of Appeal in England has held that the clause of the Hague Convention relied upon by the learned Judge is inapplicable to England; and, if so, must be inapplicable to Canada; and so the learned Judge's view of it is directly overruled: see Porter v. Freudenberg, [1915] 1 K.B. 857; and, if it were not so, I would find it difficult to understand how the clause could be applicable to a question of naturalization. In regard to the second, what difference can the character of the naturalization proceedings make? If the law disable an alien enemy from becoming naturalized, can it be that any Judge is bound, in the face of that disability, to enable him to become naturalized? It is not the Judge who is under disability, it is the alien enemy. The disabilities of aliens are not confined to those imposed in proceedings in the Courts; there is, for instance, the disability, even in an alien friend, to hold public office; and in whatsoever they may occur they must be given effect. And as to the last point, can there be any doubt that the Judge's duties are judicial, not merely ministerial? If any proof of their judicial character were needed, the learned and comprehensive judicial opinion expressed by the learned Judge would afford it; he has not acted as if his duties were purely ministerial. The fact that the Judge cannot ex mero motu enter into the merits of an application, that there must be "opposition" and "objection," something in the nature of an appeal against the certificate of the magistrate, notary or other officer, who deals with the case in the first instance, does not make the duties which the Judge has to perform any the less judicial; that is indeed generally so in regard to all appellate tribunals —there can be no judicial inquiry into any matters which have not been duly appealed against. The subject must not be treated as if it were, and were merely, the question whether an alien enemy would be disabled from seeking redress in the civil courts, redress of the character there commonly awarded. The question is a very different one. It is whether the Act in question enables an alien enemy to become naturalized in Canada: the onus of showing that it does rests upon him; and, if he satisfy that onus, common law disabilities cannot stand in his way: but, if he do not, nothing else can help him; and I may add, parenthetically, that if a convention, between nations, for mutual naturalization, were confirmed by Act of Parliament, it could hardly be construed as applicable in time of war between the contracting nations. The King's license, or a proclamation tantamount to it, may relieve from the disability to sue; but, as I have said, nothing short of an Act of Parliament can confer any right to naturalization. Therefore, I am, with much respect, bound to differ entirely from Archambault, J., in the opinion expressed by him; and, agreeing with the contrary opinions I have mentioned, to consider that the Act in question is not applicable to an alien enemy. If the Act could be said to be only ambiguous in that respect, driving one to a consideration of the purposes for which, and the circumstances under which, it was passed, the conclusion would be the same.



Grave reasons at once suggest themselves to the mind why such an enactment should not be applicable to an alien enemy, especially in these days when the power of some great armies is so mightily increased by the ramifications of vast numbers of spies throughout the length and breadth, and in all the corners, of the enemy country; an army of spies constituting largely the eyes, ears, and intelligence of the fighting army. With present battlefields so far away from Canada, the vital importance of every kind of protection against such a system of spying may not be fully appreciated by all of us as it should be; but, if we remember that some day the battlefields may be at or within our gates, that importance cannot but be more apparent. So, too, as I have already intimated, fairness in one part of the Empire to all other parts, demands, at least, great care in admitting any alien enemy to the status of a British subject. If the methods provided in the Act in question be applicable to such an alien, then, indeed, the least, if any, care has been taken. On the contrary, nothing of a grave character has been, or can be, suggested. If the application for naturalization be made in good faith, what harm can come in letting it remain in abeyance during the war? It is said that under the Dominion Lands Act no alien can obtain title to land acquired under its provisions. But assuredly, if that be a matter of consequence, the proper remedy lies in providing for discriminate grants to aliens, rather than in the indiscriminate naturalization of alien enemies in order that a few persons may be able to complete their titles to lands to be granted by the Crown to them. So that, whatever road may be taken, at the journey's end is a door closed against alien enemies; a closed door with the words "enemies excluded" written plainly above it. NOTES Cf. in re Herzfeld (1914), 46 Que. S.C. 281. The Criminal Code makes it an offence to assist an alien enemy to leave Canada: "50. (1) Every one commits an offence who "(a) incites or wilfully assists a subject of "(i) a state that is at war with Canada, or "(ii) a state against whose forces Canadian forces are engaged in hostilities, whether or not a state of war exists between Canada and the state whose forces they are, to leave Canada without the consent of the Crown, unless the accused establishes that assistance to the state referred to in subparagraph (i) or the forces of the state referred to in subparagraph (ii), as the case may be, was not intended thereby, or "(•b) knowing that a person is about to commit treason does not, with all reasonable dispatch, inform a justice of the peace or other peace officer thereof or make other reasonable efforts to prevent that person from committing treason. "(2) Every one who commits an offence under subsection (1) is guilty.of an indictable offence and is liable to imprisonment for fourteen years." See R. v. Oma (1915), 9 W.W.R. 584, 32 W.L.R. 958, 8 Sask. L.R. 395, 25 C.C.C. 73, 25 D.L.R. 670; Fabry v. Finlay (1916), 50 Que. S.C. 14, 32 D.L.R. 673; R. v. Rowens, [1914] 7 O.W.N. 467, 23 C.C.C. 340 (enemy alien refused bail). For a case involving exemption from military obligations to Canada of a "stateless" person openly favouring the cause of the enemy, see R v. Giesbrecht, [1944] 1 W.W.R. 42, 51 Man. R. 294, 81 C.C.C. 207, [1944], 2 D.L.R. 522. As to arrest, detention, and habeas corpus under the War Measures Act 1914 see in re Beranek (1915), 33 O.L.R. 139; in re Chamryk (1914), 7 W.W.R.



548, 29 W.L.R. 956, 25 Man. R. 50, 23 C.C.C. 275, 19 D.L.R. 236; Perlman v. Piche (1918), 54 Que. S.C. 170, 41 D.L.R. 147, 24 Rev de Jur. 438. As to whether a petition of right lies for illegal internment, see Magda v. R, [1953] Ex C.R. 22, [1953] 2 D.L.R. 49. See also in Re Gottesman (1918), 41 O.L.R. 547, 29 C.C.C. 439 (breach of war time regulations) and R v. Hackam (1918), 44 O.L.R. 224 (failure to register). Hi) Property rights and liabilities

In Canada during the last two world wars, matters pertaining to the transfer and disposal of enemy property were dealt with in Consolidated Orders respecting trading with the enemy, made under the authority of the War Measures Act, now R.S.C., 1952, c. 288 (see supra). The purpose of this legislation was to supplement, strengthen, and regulate the commonlaw restraint on commercial dealings with alien enemies and the inhabitants of the enemy countries as well as to secure and control property in Canada belonging to enemies. The orders prohibited the transfer of securities or otl^er property by or on behalf of an alien enemy, and consequently the money pr the proceeds of the property received by the custodian did not become part of the consolidated revenue fund of Canada. These orders, however, superseded the Crown's common-law right to compel payment to it of all debts due to an enemy, though they did not automatically operate as a forfeiture or vesting of enemy property in the Custodian. The custodian of enemy property derived his authority from the War Measures Act and regulations made thereunder. He was not a trustee of property for enemy aliens. The enemy was merely removed from control and beneficial ownership during the war. As the Exchequer Court of Canada pointed out in Synthetic Drug Co. v. the Custodian under the Treaty of Peace (Germany) Order 1920, [1925] Ex C.R. 196: . . . "Subject to any legislation to the contrary, and subject to any of the provisions of the Treaty of Peace, and the Treaty of Peace (Germany), Order 1920 (Canada), it may be said that the law of this country does not confiscate the property of an enemy. He cannot claim to receive it during the war, his right to the property is not extinguished but is merely suspended. That is the general principle." Enemy property passed to the custodian only when vested in or paid to him in accordance with the Consolidated Orders. Normally when peace returns, an alien is entitled to his property, or if it has been liquidated, to its proceeds with any fruits it may have borne in the meantime. At the end of both world wars final disposition of enemy property was dealt with in the peace treaties. NOTES See for instance the Treaty of Peace between the Allied and Associated Powers and Germany, signed at Versailles in 1919; and the Treaties of Peace Act (1919), S.C. 1919, 2nd sess., c. 30, together with the Treaty of Peace (Germany) Order 1920—especially articles 290, 296, 297, and 306 of the Treaty of Versailles; see also Schuster, The Peace Treaty and its Effects on Private Property (1920-21), 1 B.Y.B.I.L. 167. As was pointed out by the Supreme Court in Secretary of State of Canada v. Alien Property Custodian for the United States [1931] S.C.R. 169, [1931] 1 D.L.R. £90: "By the Treaty of Peace (Versailles) Arts. 290 and 297, German owners lost all their interests in property in Canada since Germany authorized the Allied and Associated Powers to retain and liquidate according to their laws, all property, rights and interests controlled by them or belonging to enemy



Germans at the date when the Treaty came into force arid at that time within allied territory. The Treaty of Peace (Germany) Order 1920, enacted under the authority of The Treaties of Peace Act, 1919 (Dom.), c. 30, contemplated the vesting in the Canadian Custodian of two classes of enemy property; first, property in Canada belonging to an enemy on January 10, 1920, and not in the possession or control of the Custodian, and next, enemy property in the possession and control of the Custodian on that date. It did not contemplate, especially in view of s. 34 of the Peace Order, that the Canadian Custodian would acquire the interests which a national of any of the Powers allied or associated with His Majesty during the war had already acquired in good faith, and for value, and in accordance with Canadian laws. "By Article 296 of the Treaty of Peace (Versailles), arrangement was made for the settlement through the intervention of clearing houses to be established by each of the high contracting parties of certain classes of pecuniary obligations, including (i) debts payable before the war and due by a national of one of the contracting powers, residing within its territory to a national of an opposing power residing within its territory and (ii) debts which become payable during the war to nationals of one contracting power residing within its territory and which arose out of transactions or contracts with the nationals of an opposing power, resident within its territory, of which the total or partial execution was suspended on account of the declaration of war. By Art. 297, the allied and associated powers reserved the right to retain and liquidate property, rights and interests of German nationals at the date when the Treaty came into force. Under the Treaties of Peace Act, 1919, (Dom.), c. 30, the Treaty of Peace (Germany) Order, 1920, was passed whereby 'enemy debt' was interpreted as follows: (a) a debt payable before the war and due to or by a British subject residing in Canada by or to a German national residing in Germany; (b) a debt which became payable during the war (i) to a British subject residing in Canada which arose out of a transaction or contract with a German national residing in Germany, or (ii) to a German national residing in Germany, which arose out of a transaction or contract with a British subject residing in Canada, of which transaction or contract the total or partial execution was suspended on account of the declaration of war. The order provided further that no person should pay or have communication with any German national with respect to any enemy debt, otherwise than through the clearing office, and no person should bring any action or proceeding relating to the payment of any enemy debt, subject to certain exceptions not applicable here. In addition, the order provided that all admitted debts should be paid to the Custodian. 'Enemy' was defined to include a German national who, during the war, resided or carried on business within the territory of a power at war with His Majesty; and a German national who during the War resided or carried on business within the territory of a power allied or associated with His Majesty whose property within such territory has been treated by that power as enemy property, 'property' being defined so as to include debts. "By Article 306, beneficial ownership in patents belonging to enemy subjects before the war is restored to the patentees subject to any acts done or rights acquired by virtue of the special measures taken during the war under proper authority of any allied or associated power. "Paragraph 3 of this Article provided that unless the legislation of one of the allied or associated powers in force at the time of the signature of the Treaty had otherwise directed, the sums due or paid in virtue of any act or operation resulting from the execution of special war measures should be dealt with in the same manner as other sums due to German nationals were directed to be dealt with under the Treaty." With respect to the Second World War, see the Treaties of Peace signed by Canada with Italy, 1947, 49-50 U.N.T.S., 1947 Can. T.S. No. 4, (part VII, articles 78-81); Roumania, 1947, 42 U.N.T.S. 3, 1947 Can. T. S. No. 6 (part V, articles 22, 23); Hungary, 1947, 41 U.N.T.S. 135, 1947 Can. T. S. No. 5 (part V, articles 23-25); Finland, 1947 Can. T. S. No. 7 (part IV, articles



23-24); all covered by S.C., 1948, c. 71 and regulations, S.O.R., 1955, vol. 3, p. 2855; and Treaty with Japan, 1951, 136 U.N.T.S. 45 and 138 U.N.T.S. 183; and the agreement relating to the resolution of conflicting claims to German enemy assets, December 5, 1947, T.I.A.S. 2230, and extensions. See especially chap. V, articles 14 to 21 of the Treaty with Japan, 1952 Can. T. S., No. 4, and Agreement for the Settlement of Disputes Arising under Article 15 (a) of the Treaty of Peace with Japan, June 12, 1952, 138 U.N.T.S. 183, 1952 Can. T. S. No. 16, S.C., 1952, c. 50. Also Peace Treaty Claims (Japan), Settlement Regulations, S.O.R. 62/9, January 10, 1962. Cases dealing with property rights and liabilities of aliens that arose during the last two world wars are numerous. These are listed below. Excerpts from some of the leading cases will be given as illustrations of the problems that confronted Canadian courts: The Dart (1812) Stewart 301 (N.S.) supra p. 1119; Wallace v. Adamson (1861), 10 U.C.C.P. 338 (C.A.); Radley v. Garber (1915), 30 D.L.R. 528, 50 Que. S.C. 264; in re Consolidated Orders Respecting Trading with the Enemy 1916 (1920), 19 Ex. C.R. 382; Bauer Chemical Co. v. Santogen Co. (1920), 20 Ex. C.R. 123, 55 D.L.R. 80; Re Walker (1919), 46 D.L.R. 86, 49 D.L.R. 415; Lehn & Fink Inc. v. Beiersdarf & Co. (1922), 21 Ex. C.R. 383, 67 D.L.R. 352; Secretary of State of Canada v. Alien Property Custodian for the United States, [1931] S.C.R. 169, [1931] 1 D.L.R. 890, affirming [1930] Ex. C.R. 75, [1930] 3 D.L.R. 81; Secretary of State of Canada v. Greenshields Ltd. [1925] Ex. C.R. 29; in re the War Measures Act 1914 Synthetic Drug Co. and Custodian under the Treaty of Peace (German) Order 1920, [1925] Ex. C.R. 196; in re the Conveyancing Act', Custodian of Alien Enemy Property v. Pasavant [1928] S.C.R. 242; [1928] 3 D.L.R. 5; The Custodian v. Blutcher, [1927] S.C.R. 420, [1927] 3 D.L.R. 40; Secretary of State v. Neitzke; Secretary of State v. Wiehmayer (1921), 62 S.C.R. 262, 68 D.L.R. 443; In re Consolidated Orders (1916) Respecting Trading with the Enemy (1919), 16 O.W.N. 251; Baumfelder v. Secretary of State of Canada, [1927] Ex. C.R. 86; Ritcher v. R., [1943] Ex. C.R. 64, [1943] 3 D.L.R. 540; Trasciati v. Roncarelli, [1946] Que. S.C. 443, appeal dismissed, [1946] Que. S.C. 443n; Keller v. Secretary of State of Canada, [1939] Ex. C.R. 221, [1939] 4 D.L.R. 145; Secretary of State for Canada v. Rothschild, [1946] S.C.R. 403, [1946] 3 D.L.R. 81; Kieffer v. Secretary of State, [1953] 4 D.L.R. 11; Bitter v. Secretary of State of Canada, [1944] Ex. C.R. 61, [1944] 3 D.L.R. 482; Braun v. Custodian, [1944] Ex. C.R. 30, [1944] 3 D.L.R. 412 affd. [1944] S.C.R. 339, [1944] 4 D.L.R. 209; Bayer Co. v. Farbenfabriken, [1944] O.R. 305, [1944] 2 D.L.R. 616, affd. [1944] O.R. 488, [1944] 3 D.L.R. 602 (C.A.), noted, Laskin, (1944), 22 Can. Bar Rev. 722; Lampel v. Berger (1917), 40 O.L.R. 165; Louvigny de Montigny v. Cousineau, [1948] Ex. C.R. 330, 7 Fox P.C. 217 revised [1950] S.C.R. 297, 10 Fox P.C. 161 (copyright); Saskatoon Mtge. & Loan Co. v. Roton, [1942] 2 W.W.R. 219, [1942] 3 D.L.R. 54, affirming [1942] 2 W.W.R. 89 (Sask. C.A.); re Shawaga Estate', Bogucki v. Custodian of Enemy Property and Western Trust Co., [1943] 2 W.W.R. 188, [1943] 4 D.L.R. 610 (Sask. C.A.); Brown, Gow, Wilson et al. v. Beleggings Societeit N.V. (1961), 29 D.L.R. (2d) 673 (Ont. H. Ct), noted Ziegel, Dunlop (1962), 40 Can. Bar Rev. 490. a) Persons: enemy character Baumf elder v. Secretary of State of Canada Canada: Exchequer Court of Canada

[1927] Ex. CR. 86 Petition by Baumfelder under the Treaty of Peace (Germany) Order, 1920, for a declaration that he was not at any time an "enemy" under the terms of the Order and that certain property vested in the custodian

belonged to the petitioner. THE PRESIDENT: . . . The question therefore is whether the interest of



Leo Baumfelder in the trust estate, he being a German national, now belongs to the Custodian. The petitioner was born in Dresden, Germany, in February, 1897. At the age of thirteen he came to England with his father and mother, and with them he took up residence in London. He was sent to school in 1910, and it was intended that he should go to Oxford University, having passed the entrance examination thereto. On reaching the age of eighteen years, he was interned as an alien enemy in England until July, 1919, when he was deported by the British authorities to Germany, where he remained until shortly after his mother's death in 1922, when he came to America and has resided there ever since. The father was also interned in England, and in 1919 was deported to Germany. The petitioner made efforts to be allowed to remain in England but his efforts were unsuccessful. His mother and sister Marion Cust Macdonald meanwhile remained in England. He found employment of various kinds in Germany until he left for America. In June, 1920, his mother and sister came to Germany to visit the petitioner, and they returned in the autumn or fall of the same year to London, but they later returned to Germany in the spring of 1921. The mother died the following year in Germany. Section 33 of the Order is to the effect that all property, rights and interest in Canada belonging on the tenth day of January, 1920, to enemies, and in the possession or control of the Custodian at the date of the Order shall belong to Canada and be vested in the Custodian. Sec. 32 defines what is an "enemy" in so far as this particular matter is concerned, and is as follows: "Enemy" means (a) A German national who during the war resided or carried on business within the territory of a Power at war with His Majesty;

The construction of sec. 32, Part II, of the Order is therefore to be considered. I think it is quite clear, in fact it was conceded on the hearing, that unless the petitioner Baumfelder falls within the definition of "enemy" under subsec. 1 (a) of sec. 32, he does not fall within any other of the provisions of that section. The question therefore for determination is, whether Baumfelder, during the war, "resided or carried on business within the territory of a Power at war with His Majesty." Subject to any legislation to the contrary, or anything to the contrary contained in the treaty of peace when peace came, enemy property in this country would be restored to its owners after the war. (Parker L.J. in Daimler Company v. Continental Tyre and Rubber Company [1916] 2 A.C. 307, at p. 347.) Was this common law principle modified by legislation? Article 297 (b) of the Treaty of Peace provided that the Allied or Associated Powers reserved the right to retain and liquidate all property, rights and interest belonging to German nationals at the date of the coming into force of the Treaty. It was not therefore the property, rights and interests of all German nationals that might be retained and liquidated, but only such of the same as the Allied and Associated Powers should decide to retain under the treaty reservation. Apparently, under the Order it was here decided to retain only the property of such German nationals as fell within the classes of enemy nationals described in sec. 32. That section clearly places a limitation upon the expression "enemy"; otherwise I think "enemy" would have been defined as "a German National" without further limiting or descriptive words. The common law principle being therefore



departed from, and the Custodian proceeding under legislation of a penal or confiscatory nature, the same must be strictly construed. I do not think that Baumfelder can be said to have been a resident of Germany in the sense intended by sec. 32, ss. 1 (a) of the Order. His residence was in England before and at the outbreak of the war. It came out in the evidence that his father was unable to return to Germany, without being there subject to arrest, in consequence of some financial misfortune which overtook him while living in that country. I have no doubt the petitioner's parents had adopted England as their domicile, and the son was being educated with a view to an extended residence there. His mother resided in England "during the war," which means from August 4, 1914, up until January 10, 1920. The petitioner Baumfelder it is true was deported to Germany, in fact he was conducted and placed under British military escort on German soil just over the boundary fine between Holland and Germany. His residence in Germany was therefore an enforced and involuntary one of six or seven months prior to January 10, 1920. Owing to the difficulties in the way of German nationals obtaining passports to go to countries allied or associated with His Majesty, and owing also to his indigent circumstances, Baumfelder was unable to get out of Germany for quite a time, but I am quite sure it never was his intention to resume permanently his domicile of origin. Up to the time of the armistice at least, no one would think of saying that either the petitioner or his parents were residents of Germany, while of course they were German nationals. England was the place of their permanent home, and that was their domicile. An excellent definition of an acquired domicile is given by Kindersley V.C. in Lord v. Colvin. ([1859] 4 Drew, 366, at p. 376.) That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected, or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.

The tests of an acquired personal domicile are, (1) the voluntariness of the residence; (2) the fact of residence; and (3) the intention to reside there either permanently or for an indefinite time. An involuntary residence in another country cannot create a domicile therein, Bromley v. Hesseltine ([1807] 1 Camp. 75, at p. 77); and therefore I think an involuntary residence of a national in his domicile of origin, does not mean an abandonement of his domicile or residence of choice, unless that as a fact is established. A man's residence is the place or country where he in fact is habitually present. Where it is that a man is ordinarily present is a matter which is determined not by legal rules, but is ascertained in the same way as any other physical fact. A man may be domiciled in one country and may be ordinarily resident in another. Dicey's Conflict of Laws, 4th ed., p. 258. Whatever distinction there is here between domicile and residence does not operate to the disadvantage of the petitioner Baumfelder. It does not appear to me that sec. 32 (b) contemplated the broad inclusion of a German national who did not during the period of actual war reside or do business in Germany, unless at least subsequent to the armistice and prior to January 10, 1920, he returned to Germany with the intention of resuming his domicile or residence there. That view would not be in harmony with the other provisions of that section. If the Order was intended to apply to the facts of this case, then it is an instance of casus omissus. There is a



limitation to the expression "enemy" as defined by sec. 32, ss. 1, of the Order, and there is not to be found any provision covering the case of a German national resident in Great Britain, or any Dominion other than Canada, and holding "property, rights and interests" in Canada. A German national residing in Canada during the war and not deported, or declared by the Governor in Council to be an "enemy" is clearly not an enemy within the terms of Part II of the Order, and I think as a matter of public policy such was not intended. Possibly it was intended also that a German national, resident in Great Britain, or any other Dominion other than Canada, should be accorded the same treatment in respect of property in Canada. I am of the opinion therefore, that on construction and in fact, Baumfelder was not an "enemy" at the times material here, under the provisions of the Order, and that the property, rights and interest in question is owned by the petitioner Baumfelder, and I so declare the same to be owned by him. This petitioner will also have his costs of this proceeding.

NOTES In J. G. White Engineering Corpn. v. Can. Car Foundry Co. (1940), 43 Que. P.R. 419, it was held that the status of an individual as an "enemy alien" should be determined according to the Regulations Respecting Trading with the Enemy, rather than under the Defence of Canada Regulations, which were intended to deal with non-financial matters. See also Newman v. Bradshaw (B.C.) (1916), 28 D.L.R. 769; Lampelv. Berger (1918), 38 D.L.R. 47 (Ont); and Porter v. Freudenberg, [1915] 1 K.B. 857 (U.K.) supra, p. 1160.

The Schooner Nancy Canada: Court of Vice-Admiralty at Halifax, Nova Scotia (1805) Stewart, p. 49 DR. CROKE: . . . In prize, a British subject forfeits every right, which he would be entitled to in that capacity by residence in a foreign country. If Great Britain was in a state of peace, during a war between France and Spain, an Englishman who inhabited either of those countries, would be liable to have his property seized by the respective enemies as much as the natural-born subjects of the country. His British allegiance would afford him no protection. This principle does not rest only upon the Prize Courts, and the law of nations, but it is recognized by the common law. In the case of Tables v. Bendelack (Bos. and Pul. Vol. Ill, 207.n. Espinasse, Vol. IV, 108), an American born, married, and occupying a house at Liverpool, purchased an American vessel, documented as such, he insured and warranted the ship American property. But Lord Kenyon held, that the warranty was not complied with, and said that "whether the ship be entitled to American privileges does not depend merely upon the owner being an American born. Persons residing in this country, reaping the advantages of the trade of this country, and contributing to the well being of this country, must for the purpose of trade be considered as belonging to this country." This indeed was a case, as between neutral countries, and the powers at war, and depended chiefly upon the law of nations, but there is another case, in which the same principle was applied between Great Britain and her own subjects, and with reference to British laws only. I mean that of MacConnel against Hector (in Bosanquet and Puller's Reports, Vol. Ill,



113). The question related to the validity of a commission of bankruptcy, and this depended upon the point, whether the debt upon which the petition issued, was such as could be sued for at law, the petitioning creditors being three partners, of whom one was resident in England, and the other two being subjects of Great Britain, were resident and concerned in trade, at Flushing, a port belonging to the enemy. It was held that they were not entitled to sue as English subjects in an English Court of Justice, and Lord Alvanly, said, "every natural-born subject has a right to the King's protection so long as he entitles himself to it by his conduct; but if he lives in an enemy's country, he forfeits that right. The question is whether a man who resides under the allegiance, and protection of an hostile state, for all commercial purposes, is not to be considered to all civil purposes, as much an alien enemy as if he were born there? That an Englishman, from whom France derives all the benefits which can be derived from a natural born subject of France, should be entitled to more right than a native Frenchman would be a monstrous proposition. While the Englishman resides in the hostile country, he is a subject of that country, and it has been held that he is entitled to all the privileges of a neutral country, while resident in a neutral country." The residence in the enemies' country was in no respect a criminal act. For Sir Matthew Hale says expressly, P.C. Vol. 1, 165: "If there be war between the King of England and the King of France, those Englishmen that live in France before the war, and continue there after, are not simply, upon that account, adherents to the King's enemies." He says likewise that they might be called upon to return upon privy seal, or proclamation. It was therefore merely a disqualification on account of residence; by residence alone, a British-born subject acquired the disabilities of an alien enemy, and though his allegiance still subsisted, and the rights which corresponded to it, though he was liable to be called home by the King's authority, yet a British-born subject in virtue of his residence alone, without being guilty of any crime, became deprived of one of the most valuable rights of a subject, that of suing in the King's Courts. Such is the effect of residence in an enemy's country, and it should seem, upon the same principles, that, by residence in a foreign country, in amity with us, a British subject must acquire the same disabilities of other inhabitants of that country, especially as by such residence he acquires all the privileges of the foreign country. Antecedent to the cases already quoted, was the case of Wilson v. Marryatt (8 T.R. 45; and Bos. and Pull. Vol. 1, 430) determined. It was there settled that a British-born subject, residing in America, might trade to the East Indies, notwithstanding the East India Company's charter, and the various acts made in support of it, by which British subjects are totally prohibited from that commerce. In the two cases first quoted, the eminent judges who presided, both assigned the case of Wilson v. Marryatt, as one ground of their decision. Now if the circumstance of a British subject's enjoying the privileges of a foreign country, by residence in a friendly country, was held to be a reason why a British subject, resident in an enemy's country, should participate in the disqualifications of that country, a fortiori is it a reason why he should share in the disqualifications of the friendly country. For in that case it applies only in the way of analogy, in this it is a direct application. In those cases the situation is only something similar, in this they are identically the same. But the case of Wilson v. Marryatt goes still further. It determines not only that a British subject may acquire foreign privileges, but that by mere



residence abroad, he may become divested of British disqualifications. The words of the East India acts are strong, "that no subjects of His Majesty, of what degree or quality soever they be, shall trade to those parts." Yet it was held, that a British subject, naturalized in America, might legally trade thither. If British subjects acquire all the privileges of American citizens, they must acquire likewise all the disadvantages of that character. It would be strange indeed, if British subjects settled in America, should obtain all the privileges of American subjects, should shake off the disqualifications of a British character, and yet retain all its privileges. Such an incomprehensible accumulation of rights, would place non-resident subjects in an infinitely better situation than those who continued within the king's dominions. It must act as a bounty upon emigration; and as a reward to those who withdraw themselves from the defence and support of their country. It is but just, that they who quit their country, and fix their habitation elsewhere, should partake of the inconveniences, as well as the benefit of their new station. . . . It can never have been the intention of the legislature, to relax principles so beneficial, more than absolute necessity in certain cases required. When the statute says, "provided such articles shall not be imported, except by British subjects;" it gives no right to British-born subjects, who may be disqualified upon other grounds. With respect to such, there must necessarily be a tacit exception. Would it give such privilege to a British subject resident in the enemy's country? Why then does the act restrain the importation to British subjects at all? It evidently keeps in view the general system of confining all the benefits of colonial trade, within the British empire, it is the object of the restricting clause that the profits and advantages of the colonial trade may centre in the British dominions. But if a British-born subject resides and carries on his traffic in a foreign country, the British empire derives no advantage from his trade with the colony. The profits all flow to the country of his domicile. The British empire receives no benefit whatever from his capital, his labour, and his industry. His person neither increases the strength of the country, nor can any part of his property be compelled to contribute to its defence. The mere place of birth is perfectly immaterial; every benefit, which a country can derive from a man as a subject, depends upon the place of his residence. What difference in reason is there, in all commercial points of view, between a natural-born Englishman, and a natural-born subject of the States, both resident in that country? NOTES In the Anglo Mexican case (H.L.) [1918] A.C. 422, the House of Lords held that the commercial domicile of a neutral in an enemy country imposes enemy character upon his property or interest in the business which he there carries on. If upon the outbreak of war he wishes to avoid the consequences of that domicile, he must within a reasonable interval discontinue the business or dissociate himself from it. A shipment of goods after the outbreak of war amounts to an election to continue unless it is made without the privity of the claimant or as a step in discontinuing the business or dissociating the claimant from it. The Bellas Canada: Exchequer Court (in Prize), (1914), 20 D.L.R. 989 On August 5 1914, the barque Bellas belonging to the Port of Hamburg in the German Empire after the outbreak of war between Germany and Canada, was seized in the port of Quebec. A writ was issued on September 16, 1914, against The Bellas and her cargo "for condemnation thereof as good and lawful



prize, and droits and perquisites of us in our office of Admiralty," directed to "the owners and parties interested in the ship Bellas of the Port of Hamburg, in the German Empire and the goods laden therein, seized and taken of prize by our officers of customs at the port of Quebec." Notice of appearance was entered on September 28, for Orlando DoMello De Rego of the City of Lisbon ih the Kingdom of Portugal, claiming to be the owner of the ship. An affidavit was filed sworn by the ship's Master deposing that Dr. Orlando Do Mello De Rego was the sole owner of The Bellas, having purchased her at Lisbon on July 3, 1914, that The Bellas reached Rimouski on July 29, 1914, five days before the declaration of war, was seized on August 3 by the Canadian authorities in Quebec. Counsel for the claimant admitted that the ship was seized on August 5. There was also an affidavit of discovery made by the ship's Master. On November 21 the Judge of the Exchequer Court made an order for pleadings ordering the Crown to file a petition and Orlando Do Mello De Rego who claimed to be the owner of the ship to file his answer to the petition. The Petition of the Crown was duly filed and the claimant filed what his attorney called a statement of defence. The defence denied that The Bellas was German. The seizure since the declaration of war was admitted, but it was alleged that The Bellas was not a German vessel when seized. It was denied that the ship—a merchant ship—was a good and lawful prize as droits and perquisites of Admiralty. The defence further stated that the German owners sold and transferred The Bellas on July 3, 1914, to the claimant, that she was on the Atlantic ocean at the time of the sale, having sailed from Oporto on June 24, 1914, on her usual voyage to Rimouski which port she reached only on July 29 and that the sale to the claimant who was a Portuguese subject was a bone fide sale. At the trial, the Crown asked that the ship and cargo be detained by the Marshal until a further order was issued by the Court, and that the claim of the alleged Portuguese owner be dismissed. The defence failed to prove that The Bellas was not still a German ship at the date of her seizure, there was no completed sale proved on or before that date. The Court accordingly following the decision of Sir Samuel Evans, P., in The Chile, [1914] P. 212, 84 LJ.(P.) 1, 16 Mews 643, 657, pronounced The Bellas to have belonged at the time of seizure thereof to enemies of the Crown, and as such to have been lawfully seized, and ordered her detention by the Marshal until further order should be issued by the Court. CASSELS J.: . . . Both under the old authorities and under the decision of our own courts, the transfer must be perfected before the declaration of war by a proper bill of sale. Here there is no claim put forward that would entitle this defendant (the claimant), a Portuguese subject, to have this ship handed over. His claim would be dismissed with costs, and the order for detention of the ship and cargo until further order would go against the German owners, as in the Chile case. b) Corporations Continental Tyre and Rubber Company (Great Britain) Limited v. Daimler Company Limited Great Britain: Court of Appeal [1915] 1 K.B. 893 The plaintiff company was incorporated in England and carried on business at their registered offices in London. The company were suing on bills accepted by the defendants for goods supplied before the declaration of war. It was contended on behalf of the defendants that the company "must be regarded as an alien enemy . . . and that as commercial intercourse between persons under the protection of the Crown and persons who are alien enemies is illegal, payment to the plaintiff company must be illegal." It was held "that the company did not change its character of an English company because on the outbreak of war all the shareholders and directors resided in an alien enemy country and became alien enemies; that



once a corporation has been created in accordance with the requirements of the law it is an English company notwithstanding that all its shareholders may be aliens; that payment of a debt to the plaintiff company was not a payment to the alien enemy shareholders or for their benefit, and that the right of the plaintiff company to recover in an action brought to recover a debt due to them was therefore not affected by the fact that practically the whole of the shares were held by alien enemies." LORD READING C.J. (at p. 903): It cannot be disputed that the plaintiff company is an entity created by statute. It is a company incorporated under the Companies Acts and therefore is a thing brought into existence by virtue of statutory enactment. At the outbreak of war it was carrying on business in the United Kingdom; it had contracted to supply goods, it delivered them, and until the outbreak of the war it was admittedly entitled to receive payment at the due dates. Has the character of the company changed because on the outbreak of war all the shareholders and directors resided in an enemy country and therefore became alien enemies? Admittedly it was an English company before the war. An English company cannot by reason of these facts cease to be an English company. It remains an English company regardless of the residence of its shareholders or directors either before or after the declaration of war. Indeed it was not argued by Mr. Gore-Browne that the company ceased to be an entity created under English law, but it was argued that the law in time of war and in reference to trading with the enemy should sweep aside this technicality, as the entity was described, and should treat the company not as an English company but as a German company and therefore as an alien enemy. If the creation and existence of the company could be treated as a mere technicality, there would be considerable force in this argument. It is undoubtedly the policy of the law as administered in our Courts of Justice to regard substance and to disregard form. Justice should not be hindered by mere technicality, but substance must not be treated as form or swept aside as technicality because that course might appear convenient in a particular case. The fallacy of the appellants' contention lies in the suggestion that the entity created by statute is or can be treated during the war as a mere form or technicality by reason of the enemy character of its shareholders and directors. A company formed and registered under the Companies Act has a real existence with rights and liabilities as a separate legal entity. It is a different person altogether from the subscribers to the memorandum of the shareholders on the register (per Lord Macnaghten in Salomon v. Salomon & Company, [1897] A.C. 22, at p. 51). It cannot be technically an English company and substantially a German company except by the use of inaccurate and misleading language. Once it is validly constituted as an English company it is an artificial creation of the Legislature and it retains its existence for all intents and purposes. It is a living thing with a separate existence which cannot be swept aside as a technicality. It is not a mere name or mask or cloak or device to conceal the identity of persons and it is not suggested that the company was formed for any dishonest or fradulent purpose. It is a legal body clothed with the form prescribed by the Legislature. In determining whether a company is an English or foreign corporation no inquiry is made into the share register for the purpose of ascertaining whether the members of the company are English or foreign. Once a corporation has been created in accordance with the requirements of the law it is an English company notwithstanding that all its shareholders may be foreign. Just as a foreign corporation does



not become British and cease to be foreign if all its members are subjects of the British Crown (per Lord Macnaghten, Lord Brampton, and Lord Lindley in Janson v. Driefontein Consolidated Mines, [1902] A.C. 484, at p. 497). For the appellants' contention to succeed, payment to the company must be treated as payment to the shareholders of the company, but a debt due to a company is not a debt due to all or any of its shareholders: Salomon v. Salomon & Company, [1897] A.C. 22. The company and the company alone is the creditor entitled to enforce payment of the debt and empowered to give to the debtor a good and valid discharge. Once this conclusion is reached it follows that payment to the plaintiff company is not payment to the alien enemy shareholders or for their benefit. On Appeal, House of Lords, [1916] 2 A.C. 307 LORD PARKER OF WADDINGTON: My Lords, in my opinion this appeal ought to be allowed. When the action was instituted all the directors of the plaintiff company were Germans resident in Germany. In other words, they were the King's enemies, and as such incapable of exercising any of the powers vested in them as directors of a company incorporated in the United Kingdom. They were incapable, therefore, of authorizing the institution of this action. The contention that the secretary of the company could authorize such institution is untenable. The resolution by which he was appointed secretary would confer on him such powers only as were incident to the performance of his secretarial duties. It is true that the directors of the company might by a proper resolution in that behalf have conferred on him a power to authorize the institution of proceedings in the company's name, but they did not do so. Their conduct in holding him out as a person having this power, if they in fact so hold him out, may in particular cases have operated to stop the company from denying the authority of a solicitor whom he retained, but it could not confer the power in question. It follows that this action was instituted without authority from the company, and in my opinion the Court having notice of the fact should have refused relief. . . . My Lords, under these circumstances, it is, strictly speaking, unnecessary to consider whether a company incorporated in the United Kingdom can under any and what circumstances be an enemy or assume an enemy character. The question has, however, been so elaborately argued both here and in the Court of Appeal, and is of such general importance, that it would not be right to ignore it. The principle upon which the judgment under appeal proceeds is that trading with an incorporated company cannot be trading with an enemy where the company is registered in England under the Companies Acts and carries on its business here. Such a company it calls an "English company," and obviously likens to a natural-born Englishman, and accordingly holds that payment to it of a debt which is due to it, and of money which is its own, cannot be trading with the enemy, be its corporators who they may. The view is that an English company's enemy officers vacate their office on becoming enemies and so affect it no longer, and that its enemy shareholders, being neither its agents nor its principals, never in law affect it at all. My Lords, much of the reasoning by which this principle is supported is quite indisputable. No one can question that a corporation is a legal person distinct from its corporators; that the relation of a shareholder to a company, which is limited by shares, is not hi itself the relation of principal and



agent or the reverse; that the assets of the company belong to it and the acts of its servants and agents are its acts, while its shareholders, as such have no property in the assets and no personal responsibility for those acts. The law on the subject is clearly laid down in a passage in Lord Halsbury's judgment in Salomon v. Salomon & Co., [1897] A.C. 22, 30: "I am simply here," he says, "dealing with the provisions of the statute, and it seems to me to be essential to the artificial creation that the law should recognise only that artificial existence—quite apart from the motives or conduct of individual corporators. . . . Short of such proof"—i.e., proof in appropriate proceedings that the company had no real legal existence—"it seems to me impossible to dispute that once the company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the formation of the company are absolutely irrelevant in discussing what those rights and liabilities are." I do not think, however, that it is a necessary corollary of this reasoning to say that the character of its corporators must be irrelevant to the character of the company; and this is crucial, for the rule against trading with the enemy depends upon enemy character. A natural person, though an English-born subject of His Majesty, may bear an enemy character and be under liability and disability as such by adhering to His Majesty's enemies. If he gives them active aid, he is a traitor; but he may fall far short of that and still be invested with enemy character. If he has what is known in prize law as a commercial domicil among the King's enemies, his merchandise is good prize at sea, just as if it belonged to a subject of the enemy Power. Not only actively, but passively, he may bring himself under the same disability. Voluntary residence among the enemy, however passive or pacific he may be, identifies an English subject with His Majesty's foes. I do not think it necessary to cite authority for these well-known propositions, nor do I doubt that, if they had seemed material to the Court of Appeal, they would have been accepted. How are such rules to be applied to an artificial person, incorporated by forms of law? As far as active adherence to the enemy goes, there can be no difference, except such as arises from the fact that a company's acts are those of its servants and agents acting within the scope of their authority. An illustration of the application of such rules to a company (as it happens a company of neutral incorporation, which is an a fortiori case) is to be found in Netherland South African Ry. Co. v. Fisher, 18 Times L.R. 116. In the case of an artificial person what is the analogue to voluntary residence among the King's enemies? Its impersonality can hardly put it in a better position than a natural person and lead to its being unaffected by anything equivalent to residence. It is only by a figure of speech that a company can be said to have a nationality or residence at all. If the place of its incorporation under municipal law fixes its residence, then its residence cannot be changed, which is almost a contradiction in terms, and in the case of a company residence must correspond to the birthplace and country of natural allegiance in the case of a living person, and not to residence or commercial domicil. Nevertheless, enemy character depends on these last. It would seem, therefore, logically to follow that, in transferring the application of the rule against trading with the enemy from natural to artificial persons, something more than the mere place or country of registration or incorporation must be looked at. ... My Lords, having regard to the foregoing considerations, I think the law on the subject may be summarized in the following propositions:



(1) A company incorporated in the United Kingdom is a legal entity, a creation of law with the status and capacity which the law confers. It is not a natural person with mind or conscience. To use the language of Buckley, L.J., "it can be neither loyal nor disloyal. It can be neither friend nor enemy." (2) Such a company can only act through agents properly authorized, and so long as it is carrying on business in this country through agents so authorized and residing in this or a friendly country it is prima facie to be regarded as a friend, and all His Majesty's lieges may deal with it as such. (3) Such a company may, however, assume an enemy character. This will be the case if its agents or the persons in de facto control of its affairs, whether authorized or not, are resident in an enemy country, or wherever resident, are adhering to the enemy or taking instructions from or acting under the control of enemies. A person knowingly dealing with the company in such a case is trading with the enemy. (4) The character of individual shareholders cannot of itself affect the character of the company. This is admittedly so in times of peace, during which every shareholder is at liberty to exercise and enjoy such rights as are by law incident to his status as shareholder. It would be anomalous if it were not so also in a time of war, during which all such rights and privileges are in abeyance. The enemy character of individual shareholders and their conduct may, however, be very material on the question whether the company's agents, or the persons in de facto control of its affairs, are in fact adhering to, taking instructions from, or acting under the control of enemies. This materiality will vary with the number of shareholders who are enemies and the value of their holdings. The fact, if it be the fact, that after eliminating the enemy shareholders the number of shareholders remaining is insufficient for the purpose of holding meetings of the company or appointing directors or other officers may well raise a presumption in this respect. For example, in the present case, even if the secretary had been fully authorized to manage the affairs of the company and to institute legal proceedings on its behalf, the fact that he held one share only out of 25,000 shares, and was the only shareholder who was not an enemy, might well throw on the company the onus of proving that he was not acting under the control of, taking his instruction from, or adhering to the King's enemies in such manner as to impose an enemy character on the company itself. It is an a fortiori case when the secretary is without authority and necessarily depends for the validity of all he does on the subsequent ratification of enemy shareholders. The circumstances of the present case were, therefore, such as to require close investigation and preclude the propriety of giving leave to sign judgment under Order XIV, r. 1. (5) In a similar way a company registered in the United Kingdom, but carrying on business in a neutral country through agents properly authorized and resident here or in the neutral country, is prima facie to be regarded as a friend, but may, through its agents or persons in de facto control of its affairs, assume an enemy character. (6) A company registered in the United Kingdom but carrying on business in an enemy country is to be regarded as an enemy. My Lords, the foregoing propositions are not only consistent with the authorities cited in argument, and in particular with what was said in this House in Janson v. Driefontein Consolidated Mines, [1902] A.C. 484, but they have, I think, the advantage of affording convenient and intelligible guidance to the public on questions of trading with the enemy. It would be



a misfortune if the law were such that during war every one proposing to deal with a British company had to examine the character of its shareholders and decide whether the number of the enemy shareholders coupled with the value of their holdings were such as to impose an enemy character on the company itself. It would be still more unfortunate if this question were a question for the jury in each particular case. No one could maintain that a company had assumed an enemy character merely because it had a few enemy shareholders. It might possibly be contended that it assumed an enemy character when its enemy shareholders amounted to (say) one-half, three-fifths, or five-eighths of the whole, but how if the one-half, three-fifths, or five-eighths held only one-sixth, one-fifth, or one-fourth of the shares? The Legislature might, but no Court could possibly, lay down a hard and fast rule, and, if no such rule were laid down, how could any one proposing to deal with the company ascertain whether he was or was not proposing to deal with the enemy? ... My Lords, I desire to add to this. It was suggested in argument that acts otherwise lawful might be rendered unlawful by the fact that they might tend to the enrichment of the enemy when the war was over. I entirely dissent from this view. . . . The contention appears to me to extend the principle on which trading with the enemy is forbidden far beyond what reason can approve or the law can warrant. In the early days the King's prerogative probably extended to seizing enemy property on land as well as on sea. As to property on land, this prerogative has long fallen into disuse. Subject to any legislation to the contrary or anything to the contrary contained in the treaty of peace when peace comes, enemy property in this country will be restored to its owners after the war just as property in enemy countries belonging to His Majesty's subjects will or ought to be restored to them after the war. In the meantime it would be lamentable if the trade of this country were fettered, business shut down, or merely allowed to remain idle in order to prevent any possible benefit accruing thereby to enemies after peace. .. . Order of the Court of Appeal reversed and action dismissed, and all orders made therein discharged. NOTES In Dangler v. Hollinger Gold Mines (1915), 34 O.L.R. 78, 23 D.L.R. 384, Sutherland J. said: "Alien enemies have no civil rights or privileges, unless they are here under the protection and by permission of the Crown . . •« Whenever the capacity of an alien enemy to sue or proceed in our Courts has come for consideration, the authorities agree that he cannot enforce his civil rights and cannot sue or proceed in the civil Courts of the realm." A company does not change "its character of an English company, because on the outbreak of war all the shareholders and directors resided in an alien country and became alien enemies: . . . once a corporation has been created in accordance with . . . [English law] it is an English company notwithstanding that all its shareholders may be aliens..." See also Bauer Chemical Co. v. Sanatoyen Co. (1920), 20 Ex C.R. 123, 55 D.L.R. 80; as to whether an enemy alien may vote in person or as proxy at a shareholders' meeting, see Bluechel and Smith v. Prefabricated Buildings Ltd. and Thomas, [1945] 2 W.W.R. 309, 61 B.C.R. 325, [1945] 2 D.L.R. 725. In Secretary of State for Canada v. Rothschild et al, [1946] 3 D.L.R. 81 (Can. S. C. C.) Rand J. said: "So long as a corporation continue with assets and organization, residence must be attributed to it; and in the absence of proof that on May 10th the central management and control and the seat of the company's business had



been transferred to a place outside of Holland, the residence of the bank on the llth must, I think, be deemed still to be in Amsterdam. Such a transfer was, in fact, never intended; the cessation of business and the scattering of corporate authority were the objects of the steps taken. The preservation of records and property must continue, but there was property in Amsterdam, including the premises occupied by the bank and some amount of cash. To attribute sole residence to a corporation elsewhere than at the place of incorporation requires, in my opinion, a more complete and collective migration of its faculties and activities than that; and I cannot agree that a residence did not continue in Holland. "The bank was, therefore, an enemy within the meaning of the Regulations, and the property held by the Royal Bank was reportable to the Custodian under s. 28."

c) Enemy property The Sally United States: Supreme Court of the United States 1814 (1814), 8 Cranch (U.S.), 382, 3 L. Ed. 597 STORY J.: This case cannot be distinguished from that of the Rapid. It was there decided that property engaged in an illicit intercourse with the enemy is liable to confiscation as prize of war, and the only remaining question now before us is, to whom it shall be condemned—to the captors, or to the United States. By the general law of prize, property engaged in an illegal intercourse with the enemy, is deemed enemy property. It is of no consequence whether it belongs to an ally or to a citizen; the illegal traffic stamps it with the hostile character, and attaches to it all the penal consequences of enemy ownership. In conformity with this rule, it has been solemnly adjudged, by the same course of decisions which has established the illegality of the intercourse, that the property engaged therein must be condemned as prize to the captors, and not to the crown. This principle has been fully recognized by Sir William Scott, in the Nelly, 1 Rob. 219; and, indeed, seems never to have admitted a serious doubt. But a claim is interposed by the United States, claiming a priority of right to the property in question, upon the ground of an antecedent forfeiture to the United States, by a violation of the Non-Intercourse Act of March 1, 1809, vol. 9, p. 246, § 5, the goods having been put on board at a British port, with an intent to import the same into the United States. We are all of opinion that this claim ought not to prevail. The municipal forfeiture under the Non-Intercourse Act (2 Stats, at Large, 528), was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations, but is confiscable under the jus gentium. But even if the doctrine were otherwise, which we do. not admit, we are all satisfied that the Prize Act of June 26, 1812, ch. 107, operates as a grant from the United States of all property rightfully captured by commissioned privateers, as prize of war. The language of the 4th, 6th, and 14th sections is decisive. The decree of the circuit court, condemning the vessel and cargo to the captors, is affirmed. NOTES See also the Rapid (1814), 8 Cranch 155. In Arpad Spitz v. Secretary of State for Canada, 1939 Ex. C.R. 162, certain shares of common stock of the Canadian Pacific Railway Company and the



certificates representing such shares had been acquired by the claimant, for a consideration, from a German national before the termination of the First World War. The issue involved was whether the claimant could claim ownership of such shares after the war, and could require registration of the certificates of such shares in his own name, in the share register of the Canadian Pacific Railway Company. Several questions were set down for hearing that involved the interpretation of the Treaty of Peace between the Allied Powers and Germany, the Treaty of Peace (Germany) Order, 1920, and the Consolidated Orders Respecting Trading with the Enemy (P.C. 1023, dated May 2, 1916) which provided, inter alia: "6. (1) No transfer made after the publication of these orders and regulations in the Canada Gazette (unless upon licence duly granted exempting the particular transaction from the provisions of this subsection) by or on behalf of an enemy of any securities shall confer on the transferred any rights or remedies in respect thereof and no company or municipal authority or other body by whom the securities were issued or are managed shall, except as hereinafter appears, take any cognizance of or otherwise act upon any notice of such transfer. "(2) No entry shall hereafter, during the continuance of the present war, be made in any register or branch register or other book kept within Canada of any transfer or any securities therein registered, inscribed or standing in the name of an enemy, except by leave of a court of competent jurisdiction or of the Secretary of State." The court held: "1. That Order 6 (1) effectively prevented the claimant from acquiring a legal or equitable title, or any rights or remedies, to or in the shares under the transfer to him by the German national. "2. That Order 6 (1) does not require that the transferee must be a Canadian, or that the transfer must be made in Canada, or that the registration of the securities must be in Canada, or that the locus of the certificates must be in Canada. "3. That the registered enemy owner of the shares in question was not entitled to notice of the Custodian's application for an order vesting ownership of the shares in the Custodian. "4. That the sole right or claim of an enemy national, whose property has been retained and liquidated by Canada, is one for compensation against his own State. "5. That the Treaty of Peace and The Treaty of Peace (Germany) Order, 1920, effectually validated and confirmed the vesting order, and also operated as a vesting order to vest in the Custodian the legal and equitable title to the shares in question. "6. That the nationality of the transferee, under any Treaty, is immaterial. . . ." Per Maclean J., p. 174, "In a general way . . . the Treaty of Peace [see section 3, article 296, which was adopted by Canada] provided for the readjustment of rights of private property on land. The general principles underlying its complicated arrangements were that the validity of all completed war measures were reciprocally confirmed; the property of subjects of the victorious Powers on the territories of the Allied Powers might be retained and liquidated, and the owner was to look for compensation to his own State. The proceeds of the realization of such property were not to be handed over to him, or to his State, but were to be credited to his State as a payment on account of the sums payable by it under the Treaty. Between some States, Great Britain and Germany for example, and which example Canada followed, Clearing Offices were established for the collection and payment of pre-war debts, and mixed Arbitral Tribunals were constituted for the purpose of deciding questions relating to debts, contracts, property, rights and interests, and certain other matters arising under the Treaty of Peace. ... "Now what are the consequences flowing from the provisions of the Treaty



of Peace, and the Treaty of Peace Order, 1920. Hostilities had ceased, and, barring untoward events, the war would terminate upon the signing of the Treaty and its Proclamation. The Treaty when proclaimed, would bring all war measures, including Consolidated Orders, to an end. The Treaty confirmed all exceptional war measures and all acts done under them by the Allied Powers. This confirmed Consolidated Orders and all acts done under them, which would include Order 6, and the vesting order. Any taint of invalidity in any step taken or act done under the terms of Consolidated Orders was removed, and any excess of authority exercised was validated. The Treaty gave the Allied Powers the right to retain and liquidate all property, rights and interests belonging to German nationals, at the date of the coming into force of the Treaty, in any territory of the Allied Powers, and the German national was to be indemnified by his own State for any of his property so retained under the Treaty and the Treaty of Peace Order. In pursuance of this right under the Treaty, the Treaty of Peace Order, 1920, vested all German property in Canada in the Custodian, and it ratified all things that had been done under Consolidated Orders, including the vesting order. At that time the shares in question had been vested in the Custodian. Altogether, it would not seem to permit of any possible doubt but that the securities in question came into the possession and control of the Custodian and no enemy national has any right or claim thereto, or in their proceeds, now or hereafter. "My answer to questions three and four is that the Treaty of Peace and the Treaty of Peace Order effectively validated and confirmed the Vesting Order, and also operated as a Vesting Order to vest in the Custodian the legal and equitable title to the shares in question." See also Erich Ritcher v. The King [1943] Ex. C.R. 64. As to conflicting claims to jurisdiction between the Canadian Custodian and the United States Alien Property Custodian, see Lehn and Fink v. P. Beiersdorf & Co. (1922), 21 Ex. C.R. 383, where the court was of the opinion that ". . . The Alien Property Custodian in the United States could not sell rights existing between German and Canadian citizens. . . . Trade-marks in Canada belonging to alien enemies during the war remained in statu quo and no law was enacted depriving them of such property." On the other hand, in Secretary of State of Canada v. Alien Property Custodian for United States, [1931] S.C.R. 169, [1931] 1 D.L.R. 890, The Supreme Court of Canada held that the Canadian Custodian of Enemy Property was not entitled to Canadian securities endorsed in blank and held in the United States on behalf of alien enemies, although certificates had been signed by the American Alien Property Custodian acting under the authority vested in him by U.S. Trading with the Enemy Act. The court said in part: "The Canadian Consolidated Orders, 1916, did not intend or effect prevention of an allied Power from validly seizing shares of Canadian companies the certificates for which were physically situate in the allied country. The seizures by the United States Custodian (having regard to the terms of the authorizing U.S. law) vested in him, as against the enemy national, not only the possession of the paper certificates, but every property right and interest to which the beneficial owners thereof would have been entitled had a state of war not existed. Both by Canadian and by United States law, share certificates endorsed in blank by the registered owners give the right to the lawful holder thereof to be registered as owner, . . . and this right existed in the United States Custodian and was, prior to and at the time of the Canadian court's vesting orders, a 'property, right or interest' in him, to the exclusion of any such in an enemy, in respect of the securities in question. . . . His right to have himself or his nominee registered as the owner of the securities was subject to any assertion by Canada of her paramount legislative power over the companies which had issued the certificates. Canada did assert this power when the shares were vested in the Canadian Custodian by the courts under the Consolidated Orders, but she relinquishes her claim to all vested property which was not enemy property at the time of the vesting. . . . The proceedings taken by the American Custodian



had the effect of investing him with the rights of a transferee of the securities, including the right to demand registration. Therefore Order 28, which authorized only the vesting of property 'belonging to or held or managed for or on behalf of an enemy,' had no application to any of the properties in question." Per Maclean J. ([1930] Ex. C.R. 75): "For all practical purposes paper certificates are treated by the world today as property . . . the beneficial ownership in or title to the security is In him who holds the paper, and it is the law of the place where the paper is that determines who is the holder . . . Canadian Consolidated Orders was then primarily designed to prevent the use of, or control by, enemy nationals, of their property within Canada, and thus to weaken the financial resources of the enemy." Per Lament J. ([1931] S.C.R. at p. 178): "The shares might be standing in the books of the companies issuing them in the names of persons who were not, or were not known to be, enemies. In such cases the only mode of ascertaining what shares were enemy held, was for the Government of the country, in which the share certificates were physically situate, to require all persons holding any such certificates to furnish a list thereof." , The Consolidated Orders, which were directed solely against the enemy, were not "intended to prevent the only allied country which could discover what shares were in reality enemy owned, from taking the steps necessary to effectively deprive the enemy of the power to dispose of them." Per Duff, J.: "Scrip and certificates, which, in the degree manifested by the practice described, stand for the securities which they evidence, may be subject, not only as pieces of paper, but as representing those securities, to appropriation in time of war by a sovereign power exercising its right to appropriate enemy property, and . . . such appropriation will invest such sovereign power with the title legal and equitable against the corporation, which has issued the security, which in ordinary times would have passed to a transferee by delivery . . . it was, no doubt, within the power of Canada . . . to nullify transfers so effected of the securities of Canadian companies at whatever undeserved injury to innocent and friendly persons, by prohibiting the recognition by Canadian companies of any claim originating or depending upon a transfer by or on behalf of an alien enemy to a transferee however innocent, after the publication of the Consolidated Orders. But this would offer no sure guarantee against the alien enemy, whose interest was concealed under the name of an agent or trustee, realizing upon his security to the disadvantage of the subjects of the British Empire or of friendly powers, and the more direct procedure was plainly the preferable one. The Consolidated Orders themselves recognize it." The Governor-in-Council under The Treaties of Peace Act, 1919, had no authority to go beyond the Treaty. "The Treaty, while ratifying the administrative orders of Canada acting within her proper sphere, also contemplated ratification of the administrative orders of the United States acting within her proper sphere." The Marquis de Somerueles Canada: Court of Vice-Admiralty at Halifax, Nova Scotia (1813) Stewart, p. 482 DR. CROKE: This petition is of a different kind from what usually engages the attention of the court. It prays, that certain painting and prints, which were captured on board the American vessel called the Marquis de Somerueles, may be restored to the petitioner on behalf of a scientific establishment at Philadelphia. The ground of the petition is contained in a letter annexed to it, which states: "That in the Somerueles, from Italy, was taken a case belonging to the Academy of Arts in that city, containing twenty-one paintings and fifty-two prints; that they were presented to the academy by Mr. Joseph Allen Smith, who has already given most objects of the statuary, paintings, and prints which they possess; indeed this is the



remnant of what he collected for the purpose of assisting in its formation. The value we know not, but in this country, and in an infant establishment, every accession is important. The Academy is now preparing an application for them, which will be handed with an accompanying letter from Anthony St. John Baker, late Secretary of Mr. Foster, who has examined into the circumstances—knowing that even war does not leave science and art unprotected, and that Britons have often considered themselves at peace with these, we are not without hopes of seeing them." Heaven forbid, that such an application to the generosity of Great Britain should ever be ineffectual. The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favor and protection. They are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species. . . . We are at war in the just defense of our national rights, not to violate the charities of human nature. iv) War claims First World War Claims "The First World War saw a loss of life and destruction of property on a scale hitherto unknown, not only among the armed combatants but also among civilians. In addition, the complicated structure of international trade was seriously dislocated and many well-known currencies, such as the German mark and the Austrian crown, ceased to have any value for all practical purposes/The problem of reparation bulked large in the minds of the framers of the Treaty of Versailles. As funds were received from Germany, recipient countries established tribunals to distribute them. Thus, in Canada, there were four successive Reparations Commissions, the last one making its final report in March 1933. Among other things, these Commissions had to hear and adjudicate upon claims arising out of the sinking of the 'Lusitania' in 1915." ((1957), 9 External Affairs 326.) NOTES The Royal Commission on Reparations, which was set up in Canada to report on Canadian war claims arising out of World War I, ruled that all claimants of British nationality who were resident in Canada on or before January 10, 1920, the date of ratification of the Treaty of Versailles, were eligible for compensation. (See Interim Report on Reparation, 1930-31, by Errol M. McDougall, Commissioner, Kings Printer, Ottawa, 1931, page 13.)

Second World War Claims See Treaties of Peace (Italy, Roumania, Hungary, and Finland) Act, 1948, S.C., 1948, c. p. 71 (1947, Can. T.S., No. 4, 6, 5, 7) and Regulations, S.O.R., 1955, vol. 3, p. 2855; War Claims (Italy) Settlement Regulations S.O.R., 1955, vol. 3, p. 2956, S.O.R. 55/249, July 13, 1955; 60/338, August 10, 1960; Treaty of Peace (Japan) Act, 1952, S.C. 1952, c. 50 (1952, Can. T.S., No. 4, 16); Peace Treaty Claims (Japan) Settlement Regulations, S.O.R. 62/9, January 10, 1962; Prisoner of War of the Japanese (Special Compensation) Regulations, S.O.R. 60/13, January 13, 1960; 63/384, October 23, 1963. "The settlement of claims arising out of the Second World War presented



problems even more intractable than those that followed the First World War. An effort was made to deal with this question on a territorial basis, i.e. with each country accepting responsibility for the settlement of claims arising out of incidents occurring on its own territory (this is the basis recognized in the various peace treaties). Although in theory this approach appeared practicable, in practice it left much to be desired: for example, some countries provided little or no compensation for their own nationals, let alone for foreigners; some solution had to be found for meritorious claims for losses on the high seas, of which the sinking of the S.S. 'Athenia' was an outstanding example, especially for Canada; and several countries, while providing compensation for damage to tangible property, provided no compensation for damage to intangible property. "A source of funds is obviously a condition precedent to the settlement of any type of claim. For Canadian war claims arising out of the Second World War, the principal source arose out of the Final Act of the Paris Conference on Reparation from Germany. This Act, which is often referred to as the Paris Agreement on German Reparation or, simply, the Paris Agreement, was signed in Paris in December 1945 by the governments of certain countries, including Canada, which had participated in the war against Germany. It provided for the establishment in Brussels of the InterAllied Reparation Agency (IARA) which has an Assembly and an international Secretariat. Nineteen governments are members of the IARA, whose function is to allocate German reparations among the member governments in accordance with the provisions of the Paris Agreement. The chief forms of reparation made available are industrial capital equipment, German external assets, merchant shipping, captured enemy supplies and Russian reciprocal deliveries which consisted of foodstuffs and raw materials which the U.S.S.R. had undertaken to deliver in return for industrial equipment and other materials received from the Western Zones of Germany. "Under the Paris Agreement German reparation was divided into A and B Categories. German external assets within the jurisdiction of the members of the Agency, as well as those of certain neutral and ex-enemy countries, comprised the major portion of Category A, which also included all other forms of German reparation except those included in Category B. Category B included the industrial and other capital equipment removed from Germany, merchant ships, and inland water transport. Each member government was given a percentage entitlement, this being determined on the basis of the material damage its economy had suffered, loss of human life, and contribution to the general war effort. In allocating current reparation, efforts have been made to allow for partial renunciations and to correct, so far as possible, imbalances caused by overdrafts or underdrafts, Canada's chief course of German reparation is, and always has been, German external assets. "Ultimately, in Canada, the whole question of war claims was reviewed by the Advisory Commission on War Claims (War Claims, Report of the Advisory Commission, February 25, 1952) the majority of its recommendations being accepted by the Canadian Government. A War Claims Fund was established into which funds received under the Paris Agreement and the Treaty of Peace with Japan have been, and are being, paid. As it was impossible to foretell how much would eventually find its way into this Fund, let alone the total of the claims which would eventually be found to be valid, a strict system of priorities was established, in particular with



regard to property claims/In practice, this system has worked well: under it, all death, personal injury and maltreatment claims have been paid in full, while all valid property claims up to an amount of $30,000 have been paid. In considering claims the Commission followed, where applicable, the accepted principles of international law, due attention being paid to the decisions of the tribunals which dealt with such claims after the First World War. Thus, a claimant, in order to be eligible, had to be a Canadian, as defined, at the time of the act complained of, as well as at the time of presentation of the claim. This stipulation eliminated the property claims of many persons who emigrated to Canada immediately before and after the war. "Corporation presented a special problem owing to the size of their claims and the fact that so many were resident or non-resident-owned investment or foreign business corporations. The solution was to stipulate that, in order to be eligible, the corporation had to have had a Canadian charter and to have been carrying on active trading operations in Canada either itself or through one or more subsidiaries at the time of the loss or damage as well as at the time of presentation of the claim. However, where the corporation itself was not eligible, shareholder claims were admissible on the same basis as individual claims. "Death and personal injury claims followed the principles in use in Canadian courts, except that in cases involving injuries awards were restricted to items of pecuniary loss, actual or estimated. Awards have also been made to members of the Armed Forces of Canada and civilians who suffered exceptional hardship in enemy concentration, prisoner-of-war or internment camps. The classes of property claims were varied, but here again the decisions of former tribunals were of the greatest value. Exchange rates presented peculiar difficulties. As regards valuations, except for money claims, pre-war valuations were used, the basis being market, and not replacement, value. It was also necessary to take into consideration payments made, or likely to be made, from other sources, e.g. payments received from foreign governments under peace treaties or under equal treatment agreements on war damage compensation. "In the case of war claims against Italy, the stipulated treaty procedure of submission of individual claims by the Canadian Government to the Italian Government, and the reference of disputes to a conciliation commission, was not followed; instead, a lump-sum payment of 290 million lire from the Italian Government was negotiated, the distribution of this sum amongst interested claimants being left to the Canadian War Claims Commission and the Minister of Finance. As regards Japan, the stipulated treaty procedure has been followed, the claims having been submitted by the Canadian Government to the Japanese Government. Such Japanese claims are of two classes, firstly, claims in respect of property losses in Japan arising out of the war and, secondly, claims arising out of the Sino-Japanese Incident' of 1937-1941. In the former class of claim the treaty provides for the submission of any dispute to a Property Commission in Tokyo, which has a neutral chairman." ((1957), 9 External Affairs 326.) On November 19, 1963, the Prime Minister of Canada gave the followr ing summary of action respecting war claims against West Germany (H.C. Deb. (Can.) 1963, vol. V, at p. 4902): "Since 1952, Mr. Speaker, some 7,000 Canadians have received from the German war claims fund compensation for war losses under the Nazi regime, including maltreatment, amounting to almost $9 million. In conformity with the usual international



practice in such matters, only persons who were Canadian citizens at the time of loss were eligible under the war claims fund, which derived from liquidated German assets." APPROPRIATION ACT NO. 4 S.C., 1952, c. 55, votes 696 and 697 Contingencies and Miscellaneous ". . . 696. To authorize "(a) the Custodian of Enemy Property to transfer to the Minister of Finance such property, including the proceeds and earnings of property, that is vested in the Custodian in respect of World War II as the Governor in Council prescribes, "(b) the Minister of Finance to hold, sell or otherwise administer property received by him from the Custodian under paragraph (a) or from other sources by way of reparations by former enemies (except Italy) in respect of World War II, and "(c) the Minister of Finance to establish a special account in the Consolidated Revenue Fund to be known as the War Claims Fund, to which shall be credited all money received by him from the Custodian under paragraph (a) or from other sources by way of reparations by former enemies (except Italy) in respect of World War II, the proceeds of sale of property under paragraph (b), the earnings of property specified in paragraph (b) and amounts recovered from persons who have received overpayments in respect of claims arising out of World War II; "and, notwithstanding section 35 of the Financial Administration Act, to provide for payments out of the War claims Fund in the current and subsequent fiscal years, in accordance with regulations of the Governor in Council, to persons who claim compensation in respect of World War II, for the payment out of the War Claims Fund in the current and subsequent fiscal years of expenses incurred in investigating and reporting on claims of those persons and for the repayment out of the War Claims Fund to Vote 128 (miscellaneous minor and unforeseen expenses) of all amounts that have been paid out of that Vote pursuant to The War Claims Interim Compensation Rules established by Order in Council, P.C. 667 of February 4, 1952.... "607. To authorize the Minister of Finance to establish a Special Account in the Consolidated Revenue Fund to be called The War Claims (Italy) Account, to which shall be credited all amounts received from Italy by way of settlement of its obligations under the Treaty of Peace between Canada and Italy that was signed at Paris on February 10, 1947, and, not withstanding section 35 of the Financial Administration Act, to provide for payment out of the said Account in the current and subsequent fiscal years, in accordance with the War Claims (Italy) Settlement Regulations established by .Order in Council P.C. 5818 of November 6, 1951, and any amendments that may be made thereto by the Governor in Council." Pursuant to Order in Council, P.C. 3951, of July 31, 1951, the Right Honourable James Lorimer Ilsley, Chief Justice of Nova Scotia, was appointed a Commissioner under part I of the Inquiries Act, R.S.C. 1952, c. 154, to inquire into and report upon war claims arising out of World War II made by Canadians in respect of death, personal injury, maltreatment, and loss of or damage to property. His report, dated February 25, 1952, and entitled "Report of the Advisory Commission on War Claims" contained certain recommendations pertaining to the classification of War Claims,



the priorities to be established for the payment of claims, the maximum compensation to be prescribed in relation to any class of claims or claimants, the method to be adopted for determining losses and for the payment of compensation, and other related matters. His Excellency the GovernorGeneral in Council, on the recommendation of the Right Honourable Louis S. St. Laurent, the then Prime Minister, and pursuant to Vote 696 of the Appropriation Act, No. 4, 1952 [supra] implemented the report by establishing the War Claims Regulations to govern the payment of compensation from the War Claims Fund to such claimants as may be found to have valid claims. See P.C. 4267 S.O.R. 52/453. These regulations were subsequently replaced by P.C. 1954, 1809, dated November 23, 1954. WAR CLAIMS REGULATIONS 1. These regulations may be cited as the War Claims Regulations. 2. In these regulations, (a) "war claims" means a claim for compensation arising out of World War II; (b) "War Claims Commissioner" means the Chief War Claims Commissioner appointed for the purpose of inquiring into, reporting upon and making recommendations with respect to the payment of war claims in particular cases; (c) "War Claims Fund" means the War Claims Fund established by Vote 696 of The Appropriation Act, No. 4, 1952; and (d) "war claims rules" and "rules" means the rules established by section 3. 3. The recommendations contained in the Report of the Advisory Commission on War Claims dated February 25, 1952, modified to the extent specified in the Schedule hereto, shall constitute the rules governing payment out of the War Claims Fund of compensation in respect of war claims. 4. (1) Payment may be made out of the War Claims Fund, with the approval of the Treasury Board, to a person, or to another on his behalf, in respect of a war claim, of an amount that, in the opinion of the War Claims Commissioner, that person is eligible to receive under the war claims rules. (2) Notwithstanding subsection (1), payment may be made out of the War Claims Fund of compensation for maltreatment at the per diem rates specified in the rules to a person, or to another on his behalf, where, in the opinion of the Treasury Board, that person is eligible to receive such compensation under the rules. (3) In approving payments under this section, the Treasury Board shall determine the times at which such payments shall be made to give effect to the order of priorities established by the war claims rules. 5. No right to payment is conferred by these regulations. 6. These regulations shall be administered by the Secretary of State. Schedule 1. Claims by Canadians (a) Where a claim is made for maltreatment and the person who suffered the maltreatment was at the time when the maltreatment occurred a member of the armed forces of Canada, the claimant shall be deemed to have been a Canadian both at the time of the maltreatment and at the time of presentation of the claim. (6) For the purpose of determining whether a corporation is a Canadian at any relevant time, of the three tests recommended by the Advisory



Commission on War Claims, those as to residence and trading only are retained and the test relating to ownership of outstanding securities is deleted. (c) A corporation regarded as having had residence both in Canada and outside of Canada at any relevant time may be treated as at that time having had Canadian residence only if it then was incorporated in Canada. 2. Maltreatment (a) In respect of the European Theatre: Where a person has been in the direct custody of members of an organization declared a criminal organization by the International Military Tribunal, Nuremberg, (such organization being the SS, SD, Gestapo and Leadership Corps), and is ineligible for an award under the Sumner Commission test, he may, if held in such custody for a period of fourteen days or more, be awarded one dollar per diem for each day of such custody, but should such custody have been for less than fourteen days any award on a per diem basis shall be within the discretion of the War Claims Commission. The receipt of or the eligibility for a pension under the Pension Act for disability consequent upon maltreatment shall not be taken into account in determining eligibility for or the amount of a per diem award or a lump sum award for maltreatment. (fc) In respect of the Far Eastern Theatre: Maltreatment awards at the rate of one dollar per diem to or in respect of former prisoners of war of the Japanese eligible therefor under the Report of the Advisory Commission on War Claims may be paid in a lump sum as in the case of such awards to or in respect of civilians, and such payments shall include any benefit for which the recipients may be eligible pursuant to Article 16 of the Treaty of Peace with Japan. (c) Surviving awards—civilian claims: Where there is a valid death claim in addition to a claim for maltreatment the accrual of the benefits of the maltreatment award to the widow, dependent husband, child, children, dependent parent or parents of the deceased as the case may be, shall not be taken into account in determining the pecuniary loss which he, she or they, have suffered from the death. (d) Surviving awards—dependents of service personnel: Where maltreatment caused death but there is no valid death claim because the deceased was a prisoner of war and pension is payable on account of his death, the maltreatment award payable to the widow, dependent husband, child, children or other dependent shall be paid to such dependent notwithstanding the fact that such dependent is in receipt of a pension in respect of the death, and without any deduction on account of such pension. 3. Claims for Property Losses (a) In any case in which final compensation for such loss has been provided for by or under an Act of the Parliament of Canada or by the Governor in Council, no claim on the War Claims Fund in respect of such loss shall be admitted. (b) In the recommendation relating to the payment of certain expenses of claimants, the words "in former enemy or enemy-occupied territory" are substituted for the word "abroad". 4. Priorities The following shall be the effective orders of priority: 1.-2. Claims for compensation for death, personal injury and maltreatment, in full, or if the Fund is not sufficient to pay them in full, the pro rata.



3. (a) Claims for compensation for property losses up to $2,500 in full, or if the balance in the Fund is not sufficient to pay them in full, then pro rota. (b) All remaining claims for compensation for property losses up to an additional $2,500 in full, or if the balance in the Fund is not sufficient to pay them in full, then pro rata. 4. All remaining claims for compensation for property losses up to an additional $10,000 in full, or if the balance in the Fund is not sufficient to pay them in full, then pro rata. 5. All remaining claims for compensation for property losses up to an additional $15,000 in full, or if the balance in the Fund is not sufficient to pay them in full, then pro rata. 6. (0) All remaining claims for compensation for property losses up to an additional $20,000 in full, or if the balance in the Fund is not sufficient to pay them in full, then pro rata. (b) All remaining claims for compensation for property losses up to an additional $50,000 in full, or if the balance in the Fund is not sufficient to pay them in full, then pro rata. 7. All remaining claims for compensation for property losses in full, or if the balance in the Fund is not sufficient to pay them in full, then pro rata. 5. Interest Simple interest at three per centum per annum may be paid on the following classes of awards: (a) For property losses on the high seas from the date of the loss; (b) For personal injury or death on the high seas from the date of the loss; (c) For disbursements for medical and similar expenses from the date of the disbursement; and (d) For all other claims, excluding awards for maltreatment, from January 1, 1946. 6. Limitation of Time for Filing Claims (a) Notice of a claim must be received by the War Claims Commission not later than November 30, 1954. (£) A claim for maltreatment shall be deemed to be presented at the time when it is first made or on the date of coming into force of the War Claims Regulations, whichever is the later. 7. Where the War Claims Commissioner is satisfied that a claimant is entitled to receive a payment of compensation from the Governments of Hungary or Roumania pursuant to the Treaties of Peace with Hungary and with Roumania, and that the amount thereof has not been paid to the claimant, he shall not in applying the rules regard such entitlement as satisfaction otherwise provided for; provided that the claimant has assigned his rights to such entitlement to the Crown in right of Canada. TREATIES OF PEACE (ITALY, ROUMANIA, HUNGARY, AND FINLAND) ACT, 1948 (1948, c. 71) I. Treaties of Peace (Italy, Roumania, Hungary and Finland) Regulations (P.C. 2995, June 16, 1949, S.O.R. 1955, vol. 3, p. 2855) 1. These Regulations may be cited as the Treaties of Peace (Italy, Roumania, Hungary and Finland) Regulations.



2. In these regulations "treaty" means a treaty of peace signed at Paris on the tenth day of February, 1947. 3. Insofar as they are by their nature capable of having effect as law in Canada, (a) Articles 76, 80 and Parts A, C and D of Annex XVI of the treaty between Canada and Italy; (b) Article 30 and Parts A, C and D of Annex V of the treaty between Canada and Roumania; (c) Article 32 and Parts A, C and D of Annex V of the treaty between Canada and Hungary; and (d) Article 29 and Parts A, C and D of Annex V of the treaty between Canada and Finland, have the force of law in Canada. II. War Claims (Italy) Settlement Regulations (P.C. 1954-1723, November 18, 1954, S.O.R. 1955, vol. 3, p. 2856, as am. by P.C. 1955-977, June 30, 1955, S.O.R. 55/249, July 13, 1955; P.C. 1960-1019, S.O.R. 60/338, August 10, 1960) 1. These regulations may be cited as the War Claims (Italy) Settlement Regulations. 2. (1) In these regulations, (a) "Canadian citizen" means a person who, on the 15th day of September, 1947 (the date of coming into force of the Peace Treaty) was a Canadian citizen; and (b) "Peace Treaty" means the Treaty of Peace between Canada Italy signed at Paris on the 10th day of February, 1947, and approved by The Treaties of Peace (Italy, Roumania, Hungary and Finland) Act 1948. (2) Payment to Canada by Italy of the sum of 290 million lire in accordance with Article 1 of the note of the Secretary of State for External Affairs dated the 20th day of September, 1951, addressed to the Minister of Foreign Affairs of Italy and approved by Order in Council P.C. 5649 of 22nd October, 1951, constitutes satisfaction by Italy of its obligations to Canada and Canadian nationals under the Peace Treaty with the exception of: (a) debts and bonds referred to in Article 2 of the said note; (b) the claims of Aluminium Limited or its Italian subsidiaries and of the Sir Alexander Mackenzie estate which will be dealt with separately in accordance with the relevant provisions of the Peace Treaty; and (c) claims under paragraph 6 of Article 78 of the said Peace Treaty. 3. (1) The Minister of Finance may pay any part of the said sum of 290 million lire to a Canadian citizen who establishes to the satisfaction of the Minister of Finance that he is entitled to receive compensation under the Peace Treaty with Italy in respect of any claim not coming within the exceptions specified in subsection (2) of section 2, but the payment shall not exceed the amount that is payable to that person in accordance with the Peace Treaty. (2) For the purpose of subsection (1), the amount of compensation to which a person is entitled under the Peace Treaty shall be determined on the basis of values existing on the day on which final payment was made to Canada by Italy of the sum of 290 million lire specified in section 2. (3) Where a Canadian citizen has died on or after the 15th day of September, 1947, but before the day on which final payment was made to



Canada by Italy Italy of the sum in section section 2, 2, the the sum of of 290 290 million million lire lire specified specified in Minister of Finance may pay to the personal representative of the deceased person or such other person as appeared to the Minister of Finance to be entitled to the assets of the deceased person, any amount that he would have paid under subsection (1) to the deceased person if he had survived, but no payment shall be made under this subsection to a person who is not a United Nations national within the meaning of the Peace Treaty. (4) Where a Canadian citizen has died on or after the day on which final payment was made to Canada by Italy of the sum of 290 million lire specified in Section 2, the Minister of Finance may pay to the personal representative of the deceased person or such other person as appears to the Minister of Finance to be entitled to the assets of the deceased person, any amount that he would have paid under subsection (1) to the deceased person if he had survived. 4. The payment to any person of an amount that the Minister of Finance designates as a final payment in respect of the claims of that person under the Peace Treaty constitutes full satisfaction of all claims of that person under the Peace Treaty. 5. No person shall receive a payment under this Order unless he has applied in writing to the Government of Canada on or before the 30th day of November, 1954. 6. (1) In administering these regulations the Minister of Finance may refer any matter to an advisory commissioner to be appointed by the Governor in Council, called the "Advisory Commissioner on Claims under the Treaty of Peace with Italy" hereinafter referred to as the "Commissioner" but the Minister of Finance is not bound by the findings and recommendations of the Commissioner. (2) The Commissioner shall, if so requested by the Minister of Finance, inquire into and make reports and recommendations to the Minister of Finance concerning (a) the validity of claims by Canadian citizens under the Peace Treaty that do not fall within the exceptions specified in subsection (2) of section 2, (b) the amount to which a Canadian citizen is entitled under the Peace Treaty in respect of a claim that does not fall within the exceptions specified in subsection (2) of section 2, and (c) any other matter arising out of the administration of these regulations. (3) The Commissioner shall have the powers of a commissioner appointed under Part I of the Inquiries Act. (4) The Commissioner shall receive such remuneration as the Governor in Council determines and his remuneration and the expenses of the commission shall be paid out of moneys provided by Parliament. NOTES In an exchange of notes dated April 29 and May 5, 1947, between Canada and France, constituting an agreement on war damage compensation (Can. T. S 1947, No. 20), the Ministry of Foreign Affairs of France confirmed to the Canadian Government that the French Government would grant to Canadian nationals, whose property in France was damaged as a result of the war, a compensation equal to that granted to French nationals for losses of the same nature and extent. The Canadian Secretary for External Affairs in turn confirmed that, for the purposes of the entry into force of this measure, equal treatment would be granted by the Canadian Government to French and Cana-



dian nationals with respect to compensation for war damage to property in Canada.

TREATY OF PEACE (JAPAN) ACT, 1952 Peace Treaty Claims (Japan) Settlement Regulations P.C. 1961-1850, S.O.R. 62/9, January 10, 1962 1. These Regulations may be cited as the Peace Treaty Claims (Japan) Settlement Regulations. 2. In these Regulations, (a) "Canadian claimant" means any Canadian corporation, association or individual (i) who had Canadian status at the time of the act complained of, or (ii) who had Canadian status on the 9th day of January, 1960 and had the status of a national of an Allied Power, as defined in Article 25 of the Peace Treaty, at the time of the act complained of, who gave notice of claim under Article 18(a) of the Peace Treaty to the Government of Canada not later than the 29th day of February, 1960; (b) "claim" means any claim under Article 18 (a) of the Peace Treaty in respect of (i) loss or damage to property, or (ii) personal injury or death that has been presented or re-presented by the Government of Canada to the Government of Japan since the coming into force of the Peace Treaty; (c) "Minister" means the Minister of Finance, and (d) "Peace Treaty" means the Treaty of Peace between Canada and Japan signed at San Francisco on the 8th day of September, 1951 and approved by The Treaty of Peace (Japan) Act, 1952. 3. Payment to Canada by Japan of the sum of $17,500 (U.S.) in accordance with Article 3 of the "Arrangement between the Government of Canada and the Government of Japan Regarding the Settlement of Certain Canadian Claims" signed in Tokyo on the 5th day of September 1961, as authorized by Order in Council P.C. 1961-1083 of the 24th day of July, 1961, constitutes satisfaction by Japan of its obligations to Canada and Canadian claimants in respect of any claim. 4. (1) The Minister may pay any part of the said sum of $17,500 (U.S.) to any Canadian claimant who establishes to the satisfaction of the Minister that he is entitled to receive compensation under Article 18(a) of the Peace Treaty in respect of a claim. (2) Where a Canadian claimant has died on or after the 5th day of September, 1961, the Minister may pay to the personal representative of the Canadian claimant or to such other person as appears to the Minister to be entitled to the assets of the Canadian claimant, any amount that he would have paid under subsection (1) to the Canadian claimant if he had survived. 5. (1) The payment to any person of an amount that the Minister designates as a final payment in respect of the claim of a Canadian claimant under Article 18 (a) of the Peace Treaty constitutes full satisfaction of all claims in respect of the Canadian claimant under that Article. (2) Before the Minister makes a final payment, he shall secure from the person to whom he makes the payment, in consideration of the payment, a release in a form that he considers satisfactory in respect of the claim for which payment is to be made.



6. (1) In administering these Regulations, the Minister may refer any matter to an adviser to be appointed with the approval of the Treasury Board, called the "Adviser on Claims under the Treaty of Peace with Japan" but the Minister is not bound by the findings and recommendations of the Adviser. (2) The Adviser shall, if so requested by the Minister, inquire into and make reports and recommendations to the Minister concerning, (a) the validity of claims by Canadian claimants under the Peace Treaty, r(b) the amount to which a Canadian claimant is entitled under Article 18 (a) of the Peace Treaty in respect of a claim, (c) the division as between the Canadian claimants of the moneys to be paid out by the Minister, and (d) any other matter arising out of the administration of these Regulations. (3) The Adviser shall receive such remuneration as the Treasury Board determined and his remuneration and his expenses shall be paid out of moneys provided by Parliament.

XIII. Neutrality A) GENERAL: RIGHTS AND DUTIES OF NEUTRAL STATES Starke, op. cit., says at pp. 440-441: "Neutrality is a legal status of a special nature involving a complex of rights and duties and privileges at international law which must be respected by belligerent and neutrals alike. "(a) Rights and Duties in General of Neutral States "The status of neutrality involves rights and duties inter se of neutral States on the one hand, and of belligerent States on the other. Rights and duties here are correlative, that is to say, a right of a neutral State corresponds to a duty of a belligerent, and a right of a belligerent State to a duty of a neutral. From the standpoint of either the neutral or the belligerent State, also, the duties of these States may be classified as: "(i) duties of abstention; "(ii) duties of prevention; "(iii) duties of acquiescence. "Applying this classification, the general duties of a neutral State may be described as follows: "(i) Abstention. The neutral State must give no assistance—direct or indirect—to either belligerent side; for example, it must not supply troops, or furnish or guarantee loans, or provide shelter for a belligerent's armed forces. "(ii) Prevention. The neutral State is under a duty to prevent within its territory or jurisdiction such activities as the enlistment of troops for belligerent armies, preparations for hostilities by any belligerent, or warlike measures in its territory or territorial waters. "(iii) Acquiescence. The neutral State must acquiesce in the acts of belligerent States with respect to the commerce of its nationals if they are duly warranted by the laws of war, for example, the seizure of vessels under its flag for the carriage of contraband, adjudications by Prize Courts, and so on. "Similarly, the duties of belligerent States may be summarised as: "(i) Abstention. A belligerent State must not commit warlike acts on neutral territory or enter into hostilities in neutral waters or in the airspace above neutral territory, nor may it interfere with the legitimate intercourse of neutrals with the enemy, nor may it use neutral territory or waters as a base for belligerent operations, or as a starting point for an expedition. "(ii) Prevention. A belligerent State is duty bound to prevent the illtreatment of neutral envoys or neutral subjects or injury to neutral property on enemy territory occupied by it "(iii) Acquiescence. A belligerent State must, for instance, acquiesce in internment by a neutral State of such members of its armed forces as take refuge in neutral territory, or in the granting of asylum by neutral ports to hostile warships so that necessary repairs may be effected. "If a belligerent or a neutral State violates any one of such duties and the breach results in damage to the other, it is in general liable for the damage caused and must furnish pecuniary satisfaction to that State."



CONVENTION (V) RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND PERSONS IN CASE OF WAR ON LAND, Signed at the Hague, October 18, 1907 II Malloy 2290 Chapter 1. The Rights and Duties of Neutral Powers Article 1. The territory of neutral Powers is inviolable. Article 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power. Article 3. Belligerents are likewise forbidden to— (a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea; (b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages. Article 4. Corps of combatants can not be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents. Article 5. A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory. Article 6. The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents. Article 7. A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, or arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet. Article 8. A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals. Article 9. Every measure of restriction or prohibition taken by a neutral Power in regard to the matters referred to in articles 7 and 8 must be impartially applied by it to both belligerents. A neutral Power must see to the same obligation being observed by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus. Article 10. The fact of a neutral Power resisting, even by force, attempts to violate its neutrality can not be regarded as a hostile act. Chapter II. Belligerents Interned and Wounded Tended in Neutral Territory Article 11. A neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war. It may keep them in camps and even confine them in fortresses or in places set apart for this purpose. It shall decide whether, officers can be left at liberty on giving their parole not to leave the neutral territory without permission. Article 12. In the absence of a special convention to the contrary, the neutral Power shall supply the interned with the food, clothing, and relief required by humanity. At the conclusion of peace the expenses caused by the internment shall be made good. Article 13. A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it allows them to remain in its territory it may assign them a place of residence. The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral Power. Article 14. A neutral Power may authorize the passage over its territory of the sick and wounded belonging to the belligerent armies, on condition that the



trains bringing them shall carry neither personnel nor war material. In such a case, the neutral Power is bound to take whatever measures of safety and control are necessary for the purpose. The sick or wounded brought under these conditions into neutral territory by one of the belligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to ensure their not taking part again in the military operations. The same duty shall devolve on the neutral State with regard to wounded or sick of the other army who may be committed to its care. Article 15. The Geneva Convention applies to sick and wounded interned in neutral territory. Chapter 111. Neutral Persons Article 16. The nationals of a State which is not taking part in the war are considered as neutrals. Article 77. A neutral can not avail himself of his neutrality— (a) If he commits hostile acts against a belligerent. (b) If he commits acts in favor of a belligerent, particularly if he voluntarily enlists in the ranks of the armed force of one of the parties. In such a case, the neutral shall not be more severely treated by the belligerent as against whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act. Article 18. The following acts shall not be considered as committed in favor of one belligerent in the sense of article 17, letter (b): (a) Supplies furnished or loans made to one of the belligerents, provided that the person who furnishes the supplies or who makes the loans lives neither in the territory of the other party nor in the territory occupied by him, and that the supplies do not come from these territories; (b) Services rendered in matters of police or civil administration. . . . CONVENTION (XIII) CONCERNING THE RIGHTS AND DUTIES OF NEUTRAL POWERS IN NAVAL WAR Signed at The Hague, October 18, 1907 II Malloy 2352 Article 1. Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality. Article 2. Any act of hostility, including capture and the exercise of the right of search, committed by belligerent warships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden. Article 3. When a ship has been captured in the territorial waters of a neutral Power, this Power must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and crew, and to intern the prize crew. If the prize is not in the jurisdiction of the neutral Power, the captor Government, on the demand of that Power, must liberate the prize with its officers and crew. Article 4. A prize court can not be set up by a belligerent on neutral territory or on a vessel in neutral waters. Article 5. Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea. Article 6. The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war ships, ammunition, or war material of any kind whatever, is forbidden. Article 7. A neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet.



Article 8. A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war. Article 9. A neutral Power must apply impartially to the two belligerents the conditions, restrictions, or prohibitions made by it in regard to the admission into its ports, roadsteads, or territorial waters, of belligerent warships or of their prizes. Nevertheless, a neutral Power may forbid a belligerent vessel which has failed to conform to the orders and regulations made by it, or which has violated neutrality, to enter its ports or roadsteads. Article 10. The neutrality of a Power is not affected by the mere passage through its territorial waters of war ships or prizes belonging to belligerents. Article 11. A neutral Power may allow belligerent war ships to employ its licensed pilots. Article 12. In the absence of special provisions to the contrary in the legislation of a neutral Power, belligerent war ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases covered by the present Convention. Article 13. If a Power which has been informed of the outbreak of hostilities learns that a belligerent war ship is in one of its ports or roadsteads, or in its territorial waters, it must notify the said ship to depart within twenty-four hours or within the time prescribed by local regulations. Article 14. A belligerent war ship may not prolong its stay in a neutral port beyond the permissible time except on account of damage or stress of weather. It must depart as soon as the cause of the delay is at an end. The regulations as to the question of the length of time which these vessels may remain in neutral ports, roadsteads, or waters, do not apply to war ships, devoted exclusively to religious, scientific, or philanthropic purposes. Article 15. In the absence of special provisions to the contrary in the legislation of a neutral Power, the maximum number of war ships belonging to a belligerent which may be in one of the ports or roadsteads of that Power simultaneously shall be three. Article 16. When war ships belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than twentyfour hours must elapse between the departure of the ship belonging to one belligerent and the departure of the ship belonging to the other. The order of departure is determined by the order of arrival, unless the ship which arrived first is so circumstanced that an extension of its stay is permissible. A belligerent war ship may not leave a neutral port or roadstead until twenty-four hours after the departure of a merchant ship flying the flag of its adversary. Article 17. In neutral ports and roadsteads belligerent war ships may only carry out such repairs as are absolutely necessary to render them seaworthy, and may not add in any manner whatsoever to their fighting force. The local authorities of the neutral Power shall decide what repairs are necessary, and these must be carried out with the least possible delay. Article 18. Belligerent war ships may not make use of neutral ports, roadsteads, or territorial waters for replenishing or increasing their supplies of war material or their armament, or for completing their crews. Article 19. Belligerent war ships may only re victual in neutral ports or roadsteads to bring up their supplies to the peace standard. Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port in their own country. They may, on the other hand, fill up their bunkers built to carry fuel, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied.



If, in accordance with the law of the neutral Power, the ships are not supplied with coal within twenty-four hours of their arrival, the permissible duration of their stay is extended by twenty-four hours. Article 20. Belligerent war ships which have shipped fuel in a port belonging to a neutral Power may not within the succeeding three months replenish their supply in a port of the same Power. Article 21. A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions. It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral Power must order it to leave at once; should it fail to obey, the neutral Power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew. Article 22. A neutral Power, must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in article 21. Article 23. A neutral Power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a Prize Court. It may have the prize taken to another of its ports. If the prize is convoyed by a war ship, the prize crew may go on board the convoying ship. If the prize is not under convoy, the prize crew are left at liberty. Article 24. If, notwithstanding the notification of the neutral Power, a belligerent ship of war does not leave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers necessary to render the ship incapable of taking the sea during the war, and the commanding officer of the ship must facilitate the execution of such measures. When a belligerent ship is detained by a neutral Power, the officers and crew are likewise detained. The officers and crew thus detained may be left in the ship or kept either on another vessel or on land, and may be subjected to the measures of restriction which it may appear necessary to impose upon them. A sufficient number of men for looking after the vessel must, however, be always left on board. The officers may be left at liberty on giving their word not to quit the neutral territory without permission. Article 25. A neutral Power is bound to exercise such surveillance as the means at its disposal allow to prevent any violation of the provisions of the above articles occurring in its ports or roadsteads or in its waters. Article 26. The exercise by a neutral Power of the rights laid down in the present Convention can under no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the articles relating thereto. Article 27. The contracting Powers shall communicate to each other in due course all laws, proclamations, and other enactments regulating in their respective countries the status of belligerent war ships in their ports and waters, by means of a communication addressed to the Government of the Netherlands, and forwarded immediately by that Government to the other contracting Powers. Article 28. The provisions of the present Convention do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention. . . . NOTES Canada is not a party to these two conventions. Potter, in Editorial Comment (1956), 50 Am. J. of Int. L. 100 says: ". . . The status of neutrality, together with rules concerning obligations and rights pertaining thereto, emerged and developed during the latter part of the seventeenth and the eighteenth centuries. The United States played a prominent part in this process, particularly at the end of the Revolutionary era. Within a few years rather elaborate regulations had been adopted governing the whole matter. "This pattern remained intact, and even grew in richness and solidity, for



over a century. As late as 1914 there had arisen little disposition to challenge the right of a state to remain neutral in face of the outbreak of war between two or more other states, or to question its rights—and obligations—in this context. There had even been worked out fragmentary and to some extent tentative codes of behaviour governing all of the parties concerned in what had become a more or less stereotyped situation. "There had, of course, been devised and established in a few cases something called permanent neutrality or neutralization—Belgium, Switzerland, and so on. This institution, whatever its practical values and appropriateness in certain situations, actually threw little light on or derived much character from the general principles of neutrality. In spite of some hopes in certain quarters, the institution did not spread very widely, although it has not disappeared and, indeed, just recently has been proposed for another small state surrounded by dangers. "It is neither unimportant nor too difficult to analyze the motivations behind this evolution. On their part the would-be neutral states felt little interest in the continuing colonial rivalries of the European Powers, were fearful for their own safety in the circumstances, or, if they allowed themselves to become involved, felt, or pretended to feel, a certain moral superiority to or over the imperialistic Powers from some of whom, indeed, they had but recently wrested their own independence. Moral conviction re-enforced practical interest in this situation—as it sometimes does. "At the turn of the present century doubts began to be raised concerning the justifiability of a completely neutral position in face of outbreak of war. Already in the Hague Conventions it had been implied—along with the codifications of neutrality already mentioned—that there was something wrong (if not positively illegal) about the outbreak of war, and doubts had been cast upon the nobility and the utility of the neutral position. This reorientation did not receive explicit or universal adherence by potentially neutral states, but there was obviously a definite trend in this direction. "With the drafting and signing of the League of Nations Covenant this trend became more marked, if not definitive. It could not be said that neutrality had been abolished or outlawed but it had, certainly, been discredited to an increased degree. The only feature of the situation which seriously militated against this development was the absence from the League system of the United States, chief champion of the philosophy, if not the practice, of neutrality since Napoleonic times. "So matters remained for a quarter of a century. During the life of the League neutrality was discredited but not outlawed. The law and rules of neutrality remained in existence, if not in force, and no action was taken to review or revise the situation formally or practically. "With the conclusion of the United Nations Charter the evolution just reviewed was given something like formal status, especially in view of the adherence of the United States. It is hardly too much to assert that neutrality, in the formal juridical sense of that concept and that term, as known prior to 1945, was abolished for all signatory states within the limits of the Charter. For issues and conflicts not covered by that instrument neutrality could still exist or be maintained and practiced." For a recent document on neutrality, see Declaration and Protocol on the Neutrality of Laos, done at Geneva July 23, 1962, 1962 Can. T.S. No. 20.

The Alabama Claims United States Great Britain Claims Arbitration (1872), 4 Papers Relating to the Treaty of Washington p. 49 By the Treaty of Washington of May 8, 1871 (17 U.S. Stat 865), the United States and Great Britain referred to a tribunal of five arbitrators the claims growing out of acts committed by several vessels. Article I. Whereas differences have arisen between the Government of



the United States and the Government of her Britannic Majesty, and still exist, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the "Alabama claims": And whereas her Britannic Majesty has authorized her High Commissioners and Plenipotentiaries to express, in a friendly spirit, the regret felt by her Majesty's Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels: Now, in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims which are not admitted by her Britannic Majesty's Government, the high contracting parties agree that all the said claims growing out of acts committed by the aforesaid vessels and generically known as the "Alabama claims," shall be referred to a tribunal of arbitration composed of five arbitrators, to be appointed in the following manner, that is to say: One shall be named by the President of the United States; one shall be named by her Britannic Majesty; his Majesty the King of Italy shall be requested to name one; the President of the Swiss Confederation shall be requested to name one; and his Majesty the Emperor of Brazil shall be requested to name one. . . . Article II. The arbitrators shall meet at Geneva, in Switzerland, at the earliest convenient day after they shall have been named, and shall proceed impartially and carefully to examine and decide all questions that shall be laid before them on the part of the Governments of the United States and her Britannic Majesty respectively. All questions considered by the tribunal, including the final award, shall be decided by a majority of all the arbitrators. . . . Article VI. In deciding the matters submitted to the arbitrators they shall be governed by the following three rules, which are agreed upon by the high contracting parties, as rules to be taken as applicable to the case, and by such principles of international law, not inconsistent therewith, as the arbitrators shall determine to have been applicable to the case. "Rules. "A neutral government is bound— "First. To use diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. "Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. "Thirdly. To exercise due diligence in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligation and duties. "Her Britannic Majesty has commanded her high commissioners and plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing rules as a statement of the principles of international law which were in force at the time when the claims mentioned in Article I. arose, but that Her Majesty's Government, in order to evince its desire of



strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries, arising out of those claims, the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules. "And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them." THE TRIBUNAL (ADAMS, SCLOPIS, STAMPFLI, DTTAJUBA): Whereas the "due diligence," referred to in the first and third of the said rules, ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed, from a failure to fulfill the obligations of neutrality on their part; And whereas the circumstances out of which the facts constituting the subject-matter of the present controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's Government of all possible solicitude for the observance of the rights and the duties involved in the proclamation of neutrality issued by Her Majesty on the 13th day of May, 1861; And whereas the effects of a violation of neutrality, committed by means of the construction, equipment, and armament of a vessel are not done away with by any commission which the government of the belligerent Power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step, by which the offense is completed, cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence. .. . And whereas, with respect to the vessel called the Alabama, it clearly results from all the facts relative to the construction of the ship, at first designated by the number "290," in the port of Liverpool, and its equipment and armament in the vicinity of Terceira, through the agency of the vessels called the Agrippina and the Bahama, dispatched from Great Britain to that end, that the British government failed to use due diligence in the performance of its neutral obligations, and especially that it omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the said number "290," to take in due time any effective measures of prevention, and that those orders which it did give at last, for the detention of the vessel, were issued so late that their execution was not practicable; And whereas, after the escape of that vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no result, and therefore cannot be considered sufficient to release Great Britain from the responsibility already incurred; And whereas, in despite of the violations of the neutrality of Great Britain, committed by the "290", this same vessel, later known as the Confederate cruiser Alabama, was on several occasions freely admitted into the ports of colonies of Great Britain, instead of being proceeded against as it ought to have been in any and every port within British jurisdiction in which it might have been found; And whereas the government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which it possessed: Four of the arbitrators for the reasons above assigned, and the fifth, for



reasons separately assigned by him, are of opinion that Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the third of the rules, established by the sixth article of the treaty of Washington. . . . And whereas, with respect to the vessel, called the Shenandoah, it results from all the facts relative to the departure from London of the merchant vessel, the Sea King, and to the transformation of that ship into a Confederate cruiser under the name of the Shenandoah, near the island of Madeira, that the Government of Her Britannic Majesty is not chargeable with any failure, down to that date, in the use of due diligence to fulfill the duties of neutrality; But whereas it results from all the facts connected with the stay of the Shenandoah at Melbourne, and especially with the augmentation which the British government itself admits to have been clandestinely effected of her force, by the enlistment of men within that port, that there was negligence on the part of the authorities at that place; For these reasons the tribunal is unanimously of opinion, that Great Britain has not failed, by any act or omission, "to fulfill any of the duties prescribed by the three rules of Article 6 in the Treaty of Washington, or by the principles of international law not inconsistent therewith," in respect to the vessel called the Shenandoah, during the period of time anterior to her entry into the port of Melbourne And whereas, so far as relates to the particulars of the indemnity claimed by the United States, the costs of pursuit of the Confederate cruisers are not, in the judgment of the tribunal, properly distinguishable from the general expenses of the war carried on by the United States: The tribunal is, therefore, of opinion, by a majority of three to two voices, that there is no ground for awarding to the United States any sum by way of indemnity under this head. . . . The tribunal, making use of the authority conferred upon it by Article 7 of the said treaty, by a majority of four voices to one, awards to the United States a sum of $15,500,000 in gold, as the indemnity to be paid by Great Britain to the United States, for the satisfaction of all the claims referred to the consideration of the tribunal, conformably to the provisions contained in Article 7 of the aforesaid treaty. . .. NOTES Sir Alexander Cockburn's separate opinion is to be found at p. 230 of 4 papers Relating to the Treaty of Washington.

The Pellworm Great Britain: Judicical Committee of the Privy Council [1922] 1 A.C. 292 In 1917 the Pellworm and three other German merchant ships were captured by British destroyers off the coast of Holland. While requisitioned, two of them were subsequently sunk by German submarines. In 1918, the Dutch government filed claims alleging that the vessels had been captured in Dutch territorial waters and should be restored or, if destroyed, paid for. LORD SUMNER: . . . Boarding the prizes within Dutch waters was a belligerent act in any view, and thereafter and in consequence of the boarding the German ships were taken as captured prizes out of those waters to British ports. It was not contended that this action could be justified, if what had already been done on the high seas did not amount to capture;



but the case for the Crown was that a complete deditio had taken place outside the territorial limit. When completed captures are made on the high seas, it can rarely matter by what steps they become complete or in what the conclusive indicia of capture consist. The question, however, becomes material when, a series of naval movements take place in such a position that the invisible limit of territorial waters intersects them, for this at once creates the necessity for a logical analysis of them, in order to determine whether or not territorial rights have been violated. Singularly enough, the reported cases on claims of territory throw little or no light on this question. The Scottish prize cases, some of very early date, which are reported in Morison's Dictionary of Decisions, generally turn on circumstances so special as to be of little assistance in solving modern problems. There is one case of a claim of territory by the King of Denmark— namely, Hunter v. De Bothmer (1764) Mor. Diet. 11957—but there the whole capture was deliberately made within the waters of Norway. The cases before Sir William Scott are of limited application in any case, and do not touch this particular point, nor is it determined by any of the decisions of their Lordships' Board in the recent war. In the unreported case of The Loekken (July 26, 1918), which alone approximates to the present case, it was shown upon the facts that, when in response to a signal to stop and another threatening to fire if she did not stop, the Loekken stopped and reversed, both she and the captor were outside territorial waters, and she was thus captured on the high seas. It was further shown that, when the captors commenced to head her off from escaping into territorial waters, as she tried to do, they were themselves on the high seas, and if the two vessels afterwards drifted accidentally over the line, which was at best doubtful on the facts, this happened at a considerable interval after the completion of the capture. In principle it would seem that capture consists in compelling the vessel captured to conform to the captor's will. When that is done deditio is complete, even though there may be on the part of the prize an intention to seize an opportunity of escape, should it present itself. Submission must be judged by action or by abstention from action; it cannot depend on mere intention, though proof of actual intention to evade capture may be evidence that acts in themselves presenting an appearance of submission were ambiguous and did not result in a completed capture. The conduct necessary to establish the fact of capture may take many forms. No particular formality is necessary: The Esperanza. 1 Hag. Adm. 85, 91. A ship may be truly captured, though she is neither fired on nor boarded, if, for example, she is constrained to lead the way for the capturing vessel under orders, or to follow her lead, or directs her course to a port or other destination, as commanded. If she has to be boarded, she is at any rate taken as prize when resistance has completely ceased. It was contended before their Lordship by counsel for the Crown that hauling down the flag was conclusive in the present case, or at least was conclusive when taken in conjunction with stopping the engines as ordered. It was said to be an unequivocal act of submission, as eloquent as the words "I surrender" could have been, an act which could not be qualified by any intention that did not find expression in action. This is to press The Rebeckah, 1 C. Rob. 227, beyond what it will bear, for there the facts showed that, after the act of formal submission by striking colours, there was no discontinuance of that submission either effectively or at all, whereas Sir William Scott intimates that, if any attempts had been made to defeat the surrender, he would not have treated the deditio as complete till possession was actually



taken. It is true that by tradition, when ships are engaged in combat, striking the colours is an accepted sign of surrender, but to do so without also ceasing resistance is to invite and to justify further severe measures by the victorious combatants. In the case of a merchantman, where the traditions of commissioned men-of-war are not of equal application, the hauling down of the flag, like any other sign or act of submission, is to be tested by inquiring whether the prize has submitted to the captor's will. What a combatant seeks to intimate by acts signifying surrender is first and foremost that he ceases to fight and submits to be taken prisoner what a merchantman intimates is that she means to do as she is told, and that the chattel property may be captured in prize though the seamen in charge of it are not made prisoners or placed under personal restraint. In the present case, according to evidence given for the Crown, the hauling down of their flags by the German steamers was accompanied by a change of course towards the land, and, as it preceded any British signal by flag or cannon shot, it was in the circumstances anything but a clear intimation of submission. On the contrary, it is obvious that the German ships continued to move towards and shortly crossed the three-mile limit, and that this was neither inadvertent nor was incapable of being prevented. They had not abandoned the intention to escape, nor had they arrested their movement towards the region of safety. They submitted just so far as to minimise the risk of being fired on; they disobeyed orders just so far as to ensure that the ships would of themselves glide or be carried over the line. They were already heading towards the territorial waters, and desired to obtain whatever advantage might be derivable from getting within them. This was why they did not obey the order to alter course to the westward. It is not shown that they could not have done so. Under these circumstances their Lordships see no reason to differ from Lord Sterndale's conclusion, that the vessels were not captured till they had entered Dutch waters, for up to that time they were endeavouring to escape and were resisting or evading submission to the captors' will. Nor can they differ from his conclusion that the conduct of His Majesty's officers was neither reckless nor careless, and that their violation of Dutch neutrality was inadvertent, since they believed in all good faith that both captors and prizes, throughout and until capture was complete, remained outside the three-mile limit. He saw these officers and judged of their demeanour, and their evidence is quite consistent with his conclusion. It may well be that they were keen in pursuit and determined to make a capture, if it could legitimately be made, but their minds were alive to the question of the rights of Holland, and they are not shown to have allowed meritorious zeal to degenerate into determination to snatch success at all costs. Even if it be taken, that when the German vessels were actually boarded they, or some of them, were obviously within Dutch waters and should have been known to be so by the captors, their Lordships do not think that this alone is a ground for reversing Lord Sterndale's decision apart from the other features of the case, nor indeed were they really pressed by counsel to do so. They are not to be taken to mean that ignorance of the law would excuse improper action, where the facts were or ought to have been known; but it is one thing to say that capture, effected within Dutch waters by boarding or otherwise, involves the restoration of the prize, and quite another to say that to board within the territorial limits a prize honestly believed to have been captured outside them must necessarily justify a claim for damages by the neutral sovereign concerned. It is not shown that the act of shelling other ships, which went ashore in



another part of the area of operations, was connected with the capture of the vessels in question, in any way that ought reasonably to affect the matter. The further contention that a promise to pay costs and expenses can be inferred from a suggestion made in the course of diplomatic correspondence, that the whole matter was one for the Prize Court, is really not worth examination. When, therefore, the case again came up to be dealt with by Sir Henry Duke on Lord Sterndale's findings, it followed that there could be no award of damages in favour of the Dutch Government, but prima facie they were entitled to restoration of the ships, which had been wrongly captured within their territorial waters. . . . Their Lordships have already stated in The Dusseldorf [1920] A.C. 1034, and The Valeria [1921] 1 A.C. 477, and need not now repeat, what is the general position of a sovereign claimant, whose territorial waters have been violated by a belligerent force. In their opinion it follows from that position that changes in the ownership of the vessel, which is the subject of the proceedings in prize, cannot defeat the claim of territory, which is independent of ownership, but that on the other hand, where there has been no intentional misconduct or affront on the part of the captors, and the loss of the vessel in question, without default on the part of those in control of her, has made her return in specie impossible, the payment of damages to the claimant is a wholly inappropriate remedy. A separate and much more difficult question, however, arises where prizes have been requisitioned on the terms of bringing, or of undertaking to bring, the appraised values into Court. It is this: Ought a claim to those appraised values, advanced on behalf of the neutral sovereign, to be treated as a claim for a solatium in money or as a claim for the res itself, in the only form in which it can now be returned? In the first aspect the following arguments arise. Where, under orders regularly and lawfully made, money has been substituted for the res, which has been brought into prize, the substitution is ordered not only to secure the captors, but also for the benefit of such claimants as have a right of property in the res, and whose interest in it is therefore an interest in its value. A claim to the appraised value is a proprietary claim; a claim by a sovereign in virtue of his violated rights is the antithesis of a proprietary claim, and finds its sole satisfaction in the return of the res to enable him to assert his rights as a sovereign and to discharge his duties as a neutral. The affronted Power had no property in or possession of the ship seized, and cannot assert a claim merely on behalf of or for the benefit of those who have the ownership or are entitled to the possession. The remedy for taking away the prize from neutral waters, without justification or permission, is the restoration of that which was seized to the waters, whence it was taken, as honourable amends for a belligerent act, which, when once it has been established, a friendly Power cannot seek to profit by or to defend. An offer of money, so far from constituting amends, would rather aggravate the affront; a claim of money, in the absence of misconduct on the part of the captors, could only be a claim in the interest of private owners, which the aggrieved sovereign is not entitled to make. Money was not taken, therefore money has not to be returned. The State, whose officers have captured the prize in neutral waters, cannot retain it consistently with the satisfaction of its obligation to make amends; but the State whose waters have been invaded cannot ask, nor can a Court of Prize grant, the imposition of a money penalty, where no intentional wrong was done, or decree the payment of money as the price of an invasion of sovereignty. In their Lordships' opinion these considerations, which are generally valid,



fail to apply in the present case for the following reason. The ships were requisitioned by the admiralty for the use of His Majesty, but ex hypothesis the requisition operated on something which never should have been brought into the custody of the Prize Court at all. Had it not been for the requisitioning, they would have been restored by decree of the Court. It is true that there is no claim for compensation in respect of the loss, as such, but the requisitioning was ordered at the instance of the Crown and the Court parted with the custody of them in accordance with the regular practice. Thereafter the ships were represented for all ordinary purposes by their appraised values. If a requisitioned ship is condemned, the undertaking to bring her appraised value into Court fails, since the Crown is not bound to pay for her; if she is not condemned, the money is brought into Court and paid to the party entitled to a release of the ship. If the Court were to refuse to release the appraised values in this case when it would have released the ships, if they had remained in the Marshal's custody, the result would be that the Dutch Government's right to restoration would be defeated merely as a consequence of the British Government's exercise of the right to requisition, and the British Government's obligation to bring the appraised values into Court would cease to be performable. As it is, though the ships are lost there is something to restore—namely, the money which represents them. In their Lordships' opinion this consideration must prevail. It is not a sufficient objection to say that the Dutch Government have no proprietary interest in money, or that they would recover money only as trustees for or for the benefit of ex-enemy owners. Trustees in strictness they are not, but, even if they were, this would in their Lordships' opinion be less incongruous with principle and more consistent with international amity than that the same law which requires the return of a prize wrongly captured should justify the retention of the sum which is to be deemed to be in Court as representing it. If the prospect of the return of the restored ships to their ex-enemy owners does not prevent their restoration to the neutral Government, no different result should follow from the prospect that the money, when restored, will be handed over likewise. It follows that His Majesty's Government ought to return to the waters of Holland the vessels which survive, let the present rights of property or possession be what they may; and ought to do so free of expense to the Government of the Queen of the Netherlands, and that the like obligation to return applies to the appraised values, which otherwise would be a profit growing out of their own wrong. NOTES The court held that the Dutch Government was entitled to have the two ships which remained afloat returned to Dutch waters, free of expense, and to receive the appraised values of the two sunken ships, but not compensation for use of the ships; and that these rights were not affected by the Treaty of Versailles to which Holland was not a party.

The Stigstad Great Britain: Judicial Committee of the Privy Council, 1918 [1919] A.C. 279 The Stigstad, a Norwegian vessel, was seized on the North Sea under sec. 3 of an Order in Council of March 11, 1915 providing that "3. Every merchant vessel which sailed from her port of departure after the 1st March 1915 on her way to a port other than a German port, carrying goods with an enemy destination, or which are enemy property, may be



required to discharge such goods in a British or allied port. Any goods so discharged in a British port shall be placed in the custody of the marshal of the Prize Court, and, unless they are contraband of war, shall, if not requisitioned for the use of His Majesty, be restored by order of the Court, tipon such terms as the Court may in the circumstances deem just to the person entitled thereto. . . ." She was seized for carrying to Rotterdam a cargo of iron-ore briquettes, the property of neutrals but destined for Germany. The cargo was sold by consent of its owners. They then sued for freight, and for other damages consequent upon the seizure of the ship. The Board held that the neutral shipowner was not entitled to damages for the detention of the ship or to expenses. LORD SUMNER: . . . Again with the fullest recognition of the rights of neutral ships, it is impossible to say that owners of such ships can claim damages from a belligerent for putting into force such an Order in Council tis that of March 11, 1915, if the Order be valid. The neutral exercising his trading rights on the high seas and the belligerent exercising on the high seas rights given him by Order in Council or equivalent procedure, are each in the enjoyment and exercise of equal rights; and, without an express provision in the Order to that effect, the belligerent does not exercise his rights subject to any over-riding rights in the neutral. The claimants' real contention is, and is only, that the Order in Council is contrary to international law, and is invalid. Upon this subject two passages in The Zamora, [1916] 2 A.C. 77, 95, 98, are in point. The first is at p. 95, and relates to Sir William Scott's decision in The Fox, Edw. 311. "The decision proceeded upon the principle that, where there is just cause for retaliation, neutrals may by the law of nations be required to submit to inconvenience from the act of a belligerent power greater in degree than would be justified had no just cause for retaliation arisen, a principle which had been already laid down in The Lucy, (1809) Edw. 122." Further, at p. 98, are the words "An order authorising reprisals will be conclusive as to the facts which are recited as showing that a case for reprisals exists, and will have due weight as showing what, in the opinion of His Majesty's advisers, are the best or only means of meeting the emergency; but this will not preclude the right of any party aggrieved to contend, or the right of the Court to hold, that these means are unlawful, as entailing on neutrals a degree of inconvenience unreasonable, considering all the circumstances of the case," It is true that in The Zamora the validity of a retaliatory Order in Council was not directly in question, but these passages were carefully considered.. What is here in question is not the right of the belligerent to retaliate upon his enemy the same measure as has been meted out to him, or the propriety of justifying in one belligerent some departure from the regular rules of war on the ground of necessity arising from prior departures on the part of the other, but it is the claim of neutrals to be saved harmless under such circumstances from inconvenience or damage thereout arising. If the statement above quoted from The Zamora be correct, the recitals in the Order in Council sufficiently establish the existence of such breaches of law on the part of the German Government as justify retaliatory measures on the part of His Majesty, and, if so, the only question open to the neutral claimant for the purpose of invalidating the Order is whether or not its



subjects neutrals to more inconvenience or prejudice than is reasonably necessary under the circumstances. Their Lordships think that such a rule is sound, and indeed inevitable. From the nature of the case the party who knows best whether or not there has been misconduct calling such a principle into operation, is a party who is hot before the Court, namely, the enemy himself. The neutral claimant can hardly have much information about it, and certainly cannot be expected to prove or disprove it. His Majesty's Government, also well aware of the facts, has already, by the fact as well as by the recitals of the Order in Council, solemnly declared the substance and effect of that knowledge, and an independent inquiry into the course of contemporary events, both naval and military, is one which a Court of Prize is but ill-qualified to undertake for itself/Still less would it be proper for such a Court to inquire into the reasons of policy, military or other, which have been the cause and are to be the justification for resorting to retaliation for that misconduct. Its function is, in protection of the rights of neutrals, to weigh on a proper occasion the measures of retaliation which have been adopted in fact, and to inquire whether they are in their nature or extent other than commensurate with the prior wrong done, and whether they inflict on neutrals, when they are looked at as a whole, inconvenience greater than is reasonable under all the circumstances. It follows that a Court of Prize, while bound to ascertain, from the terms of the Order itself, the origin and the occasion of the retaliatory measures for the purpose of weighing those measures with justice as they affect neutrals, nevertheless ought not to question, still less to dispute, that the warrant for passing the Order, which is set out in its recitals, has in truth arisen in the manner therein stated. Although the scope of this inquiry is thus limited in law, in fact their Lordships cannot be blind to what is notorious to all the world and is in the recollection of all men, the outrage namely committed by the enemy, upon law, humanity, and the rights, alike of belfigerents and neutrals, which led to, and indeed compelled, the adoption of some such policy as is embodied in this Order in Council. In considering whether more inconvenience is inflicted upon neutrals than the circumstances iiivolve, the frequency and the enormity of the original wrongs are alike material, for the more gross and universal those wrongs are, the more are all nations concerned in their repression, and bound for their part to submit to such sacrifices as that repression involves. It is right to recall that, as neutral commerce suffered and was doomed to suffer gross prejudice from the illegal policy proclaimed and acted on by the German Government, so it profited by, and obtained relief from, retaliatory measures, if effective to restrain, to punish and to bring to an end such injurious conduct. Neutrals, whose principles or policy lead them to refrain from punitory or repressive action of their own, may well be called on to bear a passive part in the necessary suppression of courses which are fatal to the freedom of all who use the seas. The argument principally urged at the bar ignored these considerations, and assumed an absolute right in neutral trade to proceed without interference or restriction, unless by the application of the rules heretofore established as to contraband traffic, unneutral service and blockade. The assumption was that a neutral, too pacific or too impotent to resent the aggressions and lawlessness of one belligerent, can require the other to refrain from his most effective, or his only, defence against it, by the assertion of an absolute inviolability for his own neutral trade, which would



thereby become engaged in a passive complicity with the original offender. For this contention no authority at all was forthcoming. Reference was made to the Orders in Council of 1806 to 1812, which were framed by way of retaliation for the Berlin and Milan decrees. There has been much discussion of these celebrated instruments on one side or the other, though singularly little in decided cases or in treatises of repute; and, according to their nationality or their partisanship, writers have denounced the one policy or the other, or have asserted their own superiority by an impartial censure of both. The present Order, however, does not involve for its justification a defence of the very terms of those Orders in Council. It must be judged on its merits and, if the principle is advanced against it that such retaliation is wrong in kind, no foundation in authority has been found on which to rest it. Nor is the principle itself sound. The seas are the highway of all, and it is incidental to the very nature of maritime war that neutrals, in using that highway, may suffer inconvenience from the exercise of their concurrent rights by those who have to wage war upon it. Of this fundamental fact the right of blockade is only an example. It is true that contraband, blockade, and unneutral service are branches of international law which have their own history, their own illustrations, and their own development. Their growth has been unsystematic, and the assertion of right under these different heads has not been closely connected or simultaneous. Nevertheless, it would be illogical to regard them as being in themselves disconnected topics or as being the subject of rights and liabilities which have no common connexion. They may also be treated, as in fact they are, as illustrations of the broad rule that belligerency and neutrality are states so related to one another that the latter must accept some abatement of the full benefits of peace in order that the former may not be thwarted in war in the assertion and defence of what is the most precious of all the rights of nations, the right to security and independence. The categories of such cases are not closed. To deny to the belligerent under the head of retaliation any right to interfere with the trade of neutrals beyond that which, quite apart from circumstances which warrant retaliation, he enjoys already under the heads of contraband, blockade, and unneutral service, would be to take away with one hand what has formally been conceded with the other. As between belligerents acts of retaliation are either the return of blow for blow in the course of combat, or are questions of the laws of war not immediately falling under the cognizance of a Court of Prize. Little of this subject is left to Prize Law beyond its effect on neutrals and on the rights of belligerents against neutrals, and to say that retaliation is invalid as against neutrals, except within the old limits of blockade, contraband, and unneutral service, is to reduce retaliation to a mere simulacrum, the title of an admitted right without practical application or effect.... Sir William Scott's decisions on the retaliatory Orders in Council were many, and many of them were affirmed on appeal. He repeatedly, and in reasoned terms, declared the nature of the right of retaliation and its entire consistency with the principles of international law. Since then discussion has turned on the measures by which effect was then given to that right, not on the foundation of the principle itself, and their Lordships regard it as being now too firmly established to be open to doubt. Turning to the question which was little argued, if at all, though it is the real question in the case, whether the Order in Council of March 11, 1915, inflicts hardship excessive either in kind or in degree upon neutral commerce, their Lordships think that no such hardship was shown. It might



well be said that neutral commerce under this Order is treated with all practicable tenderness, but it is enough to negative the contention that there is avoidable hardship. Of the later Order in Council they say nothing now. If the neutral shipowner is paid a proper price for the service rendered by his ship, and the neutral cargo-owner a proper price according to the value of his goods, substantial cause of complaint can only arise if considerations are put forward which go beyond the ordinary motives of commerce and partake of a political character, from a desire either to embarrass the one belligerent or to support the other. In the present case the agreement of the parties as to the amount to be allowed for freight disposes of all question as to the claimants' rights to compensation for mere inconvenience caused by enforcing the Order in Council. Presumably that sum took into account the actual course and duration of the voyage and constituted a proper recompense alike for carrying and for discharging the cargo under the actual circumstances of that service. The further claims are in the nature of claims for damages for unlawful interference with the performance of the Rotterdam charterparty. They can be maintained only by supposing that a wrong was done to the claimants, because they were prevented from performing it, for in their nature these claims assume that the shipowners are to be put in the same position as if they had completed the voyage under that contract, and are not merely to be remunerated on proper terms for the performance of the voyage, which was in fact accomplished. In other words, they are a claim for damages, as for wrong done by the mere fact of putting in force the Order in Council. Such a claim cannot be sustained. Their Lordships will humbly advise His Majesty that the appeal should be dismissed with costs. B) NEUTRAL NATIONALS AND PROPERTY IN WAR ON LAND, IN THE AIR, AND AT SEA 1) Unneutral Service Starke, op. cit., p. 444: ". . . It is the duty of the owners or persons in charge of a neutral vessel or aircraft not by any acts or conduct on their part to employ the vessel or aircraft for objects or purposes (other than carriage of contraband or breach of blockade) which may advance the belligerent interests of one State and injure the same interest of the opponent. For such acts or conduct, a belligerent who is or may be injuriously affected thereby, may stop the vessel or aircraft, and remove therefrom the persons improperly carried—and in more serious cases— capture the vessel and condemn it or certain portions of its cargo by proceeding before a Prize Court." The Svithiod Great Britain: Judicial Committee of the Privy Council [1920] A.C. 718 LORD SUMNER: Their Lordships are much indebted to counsel on both sides for the unusually complete and exhaustive survey of all possible authorities bearing on a most important question, but, for reasons which their Lordships will briefly state, they do not think it necessary to deal with this case in such a manner as would require that time should be taken for its further consideration. The case is one in which there is no appeal by the captain against the confiscation of the rubber which was his property. The learned local Judge



in Admiralty, Drysdale, J., has expressly said that for carrying the contraband rubber alone he would not have confiscated the ship, and that, although the captain of the Svithiod lied in certain particulars, that alone would not cost his owners their ship; and accordingly the case, although it has involved some discussion as to both the prevarication and falsehood of the captain, and his conduct in having on board some contraband, really resolves itself, and always has resolved itself, into the question whether the captors made out, or laid the foundation for making out, a case of unneutral service. Upon that the evidence briefly stands as follows: There was a German stowaway, named Hellman, on board the vessel found at Halifax. Their Lordships will assume that, as the learned trial judge found, this 'stowaway was taken on board in collusion with the captain of the vessel, although it may be pointed out that this is rather a matter of indirect inference from the probabilities of the case than dependent upon any fact positively deposed to. This person was the third mate of the Blucher, which had taken refuge in Pernambuco at the beginning of the war to avoid the risks of capture at sea, and had remained there for the best part of three years. Hellman came on board and purported to be a stowaway, and purported to discover himself when the ship was a sufficient length of time out of Pernambuco, and was then treated by the captain of the Svithiod with some consideration, and so the vessel reached Halifax. The vessel was a Swedish vessel, bound with a full cargo of maize from Buenos Aires to a port of discharge in Denmark. The learned trial judge found that he was satisfied that the captain took the third officer intending to smuggle him to Germany. In their Lordships' opinion, that, however plausible as a matter of speculation, on this evidence is a matter of speculation only; because all that can be said is, on the one hand, that he was a German, and apparently that his relations were still alive in Germany, while, on the other hand, there is no evidence of any express intention on his part, or of anything done by him to throw any light on his further proceedings after arriving in Denmark; and for what it may be worth there is the fact that he had left Pernambuco under such circumstances of dispute with the other officers on board his ship, the Blucher, that the immediate cause of his discovery was in fact the sending of a letter by the first mate, which he must have known would fall into the hands of the British officials, betraying Hellman's presence on board, because he had gone away in debt to him and others. Therefore, it would be quite impossible, in their Lordships' opinion, to say that it has been proved that he was even going to Germany. What this man was, except that he was a mariner and a qualified third officer, the evidence does not show; and even assuming, as probably one may assume, because our eyes cannot be closed to circumstances of public notoriety connected with the war, that, if he reached Germany, some service in connection with the war would promptly have been found for him, the fact remains that he was at the time a seaman in an entirely private capacity seeking the opportunity of a voyage, by which he would at least escape from a further stay at Pernambuco, and proceeding at his own expense, or at the expense of 'the owners of this Swedish barque, it does not appear which, but without their cognizance at any rate. His case, therefore, cannot be placed in the same category at all as the cases where the officers of a belligerent State have engaged a vessel to perform a particular service, or have paid for the carriage of particular passengers, or where persons, already embodied in the sevice of the belligerent country, are being transported upon some purpose of State.



Their Lordships are impressed with the fact^that the circumstances of this case appear to lie outside the scope of any authority to which their attention has been drawn. It is true that when he reached Halifax the captain of the Svithiod endeavored to conceal the presence of the man on board by means of very transparent devices, because, as he knew almost as soon as he was interrogated, the officials were already aware of the man's presence, and anything he might say or do could hardly do more than save appearances for himself, and enable him to say that he had not given the man up. The conduct of the captain of the Svithiod does not appear to their Lordships particularly aggravated. At any rate, if there is no sufficient evidence of an act which would constitute an unneutral service or a cause of condemnation under that or any analogous title, the mere deceptions of the captain of the Svithiod in themselves would not, either in justice or according to authority, be a ground for confiscating the vessel. Their Lordships are, of course, very fully impressed with the great importance of the whole topic of unneutral service, particularly in view of the fact that the change in the circumstances under which maritime warfare is now carried on is so great since most of the cases relied upon were decided. On some proper occasion it might be necessary to define with very great accuracy the way in which well-known principle should be applied under modern conditions; but it is precisely because their Lordships are so impressed with the importance of the subject, with the high obligations which rest upon neutrals to refrain from all unneutral service, and with the gravity of that breach of duty, if it should occur, that they think it unnecessary, and therefore inexpedient and undesirable, to endeavor to decide any question of law in a case where, in their view, the captors have failed to lay any foundation in fact which would justify the investigation of so important a subject. Their Lordships will, therefore, humbly advise His Majesty that the appeal succeeds; that the decree of confiscation ought to be set aside, and that the confiscated vessel ought to be restored to her owners. The respondent will pay the costs of the appeal. NOTES See also The Atalaya, in the Court of Vice-Adniirality at Quebec, 1880, Cook's Lower Canada Admiralty Court Cases, 1873-84, p. 215, which dealt with an alleged infraction of the Foreign Enlistment Act by an attempt to help Cuban insurgents; now see the Foreign Enlistment Act, R.S.C., 1952, c. 124, an excerpt of which follows. Interpretation 2. In this Act, (a) "armed forces" includes army, naval and air forces or services, combatant or non-combatant, but does not include surgical, medical, nursing and other services engaged solely in humanitarian work and which are under the control or supervision of the Canadian Red Cross.or other recognized Canadian humanitarian society; (b) "conveyance" includes ships, vessels, aircraft,'trains, and motor and other vehicles; (c) "equips' in relation to a ship, includes the furnishing of anything that is used for the purpose of fitting or adapting the ship for the sea, or for naval service, and all words relating to equipment shall be construed accordingly; , (d) "foreign state" includes any foreign prince, colony, province or part of any province or people, or any person or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province or people;



(e) "illegally enlisted person" means a person who has accepted or agreed to accept any commission or engagement, or who is about to quit Canada with intent to accept any commission or engagement, or who has been induced to go on board a conveyance under a misapprehension or false representation of the service in which such person is to be engaged with the intention or in order that such person may accept or agree to accept any commission or engagement contrary to the provisions of this Act; (/) "within Canada" includes Canadian waters as defined for the purposes of the Customs Act. 3. Any person who, being a Canadian national, within or without Canada, voluntarily accepts or agrees to accept any commission or engagement in the armed forces of any foreign state at war with any friendly foreign state, or, whether a Canadian national or not, within Canada, induces any other person to accept or agree to accept any commission or engagement in any such armed forces, is guilty of an offence under this Act. 4. Any person who, being a Canadian national, quits or goes on board any conveyance with a view of quitting Canada with intent to accept any commission or engagement in the armed forces of any foreign state at war with any friendly foreign state, or, whether a Canadian national or not, within Canada, induces any other person to quit or go on board any conveyance with a view of quitting Canada, with a like intent, is guilty of an offence under this Act. 5. Any person who induces any other person to quit Canada, or to go on board any conveyance within Canada under a misrepresentation or false representation of the service in which such person is to be engaged, with the intent or in order that such person may accept or agree to accept any commission or engagement in the armed forces of any foreign state at war with a friendly state, is guilty of an offence under this Act. 6. (1) A person who, having the control or direction of, or being the owner of any conveyance, knowingly either takes on board or engages to take on board or has on board such conveyance, within Canada, any illegally enlisted person, is guilty of an offence under this Act. (2) Such conveyance shall be detained until the trial or conviction of such person or owner and until all fines or penalties imposed on such person or owner have been paid or security approved by the Court having jurisdiction in the matter has been given for the payment thereof. 7. (1) Subject to subsection (2) any person who, within Canada, does any of the following acts, that is to say, (a) builds or agrees to build or causes to be built, any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in or by the armed forces of any foreign state at war with any friendly state; (b) issues or delivers any commission for any ship with intent or knowledge or having reasonable cause to believe that the same shall or will be employed in or by the armed forces of any foreign state at war with any friendly state; (c) equips any ship with intent or knowledge or having reasonable cause to believe that the same shall or will be employed in or by the armed forces of any foreign state at war with any friendly state; or (d) despatches or causes or allows to be despatched, any ship, with intent or knowledge or having reasonable cause to believe that the same shall or will be employed in or by the armed forces of any foreign state at war with any friendly state; is guilty of an offence under this Act. (2) A person building, causing to be built, or equipping a ship in any of the cases mentioned in subsection (1), in pursuance of a contract made before the commencement of such war as aforesaid, shall not be deemed to have committed an offence under this Act, if, forthwith, upon a proclamation of neutrality or any other proclamation notifying or bringing into operation the provisions of this Act, he gives notice to the Secretary of State for External Affairs that he is so building, causing to be built, or equipping, such ship, and



furnishes such particulars of the contract and of any matters relating to or done, or to be done under the contract, as may be required by the Secretary of State for External Affairs, and, if he gives such security and takes and permits to be taken such other measures, if any, as the Secretary of State for External Affairs may prescribe for insuring that such ship shall not be despatched, delivered or removed, or otherwise dealt with, without the permission in writing of the Secretary of State for External Affairs, until the termination of such war as aforesaid. 8. When any ship is built by order of or on behalf of any foreign state, when at war with a friendly state, or is delivered to or to the order of such foreign state, or to any person who to the knowledge of the person building is an agent of such foreign state, or is paid for by such foreign state or such agent, and is employed in or by the armed forces of such foreign state, such ship shall, until the contrary is proved, be deemed to have been built with a view to being so employed, and the burden lies on the builder of such ship of proving that he did not know that the ship was intended to be so employed in or by the armed forces of such foreign state. 9. Any person who, within Canada, by any addition to or substitution in the armament or equipment, increases or augments, or procures to be increased or augmented, or is knowingly concerned in increasing or augmenting the war-like force of any ship, which at the time of its being within Canada was a ship in or of the armed forces of any foreign state at war with any friendly state, is guilty of an offence under this Act. 10. Any person who, within Canada, prepares or fits out any army, naval or air expedition, to proceed against the dominions of any friendly state, is guilty of an offence against this Act. 11. Any person who, within Canada, recruits or otherwise induces any person or body of persons to enlist or to accept any commission or engagement in the armed forces of any foreign state or other armed forces operating in such state, is guilty of an offence under this Act, except that this section does not apply to the action of foreign consular or diplomatic officers or agents in enlisting persons who are nationals of the countries which they represent, and who are not Canadian nationals, in conformity with the regulations of the Governor in Council. 12. Where any ship, goods, or merchandise, captured as prize of war within Canada in violation of Canadian neutrality, or captured by any ship that may have been built, equipped, commissioned or despatched, or the force of which may have been augmented, contrary to the provisions of this Act, are brought within Canada by the captor, or by any agent of the captor, or by any person having come into possession thereof with a knowledge that the same was prize of war so captured as aforesaid, it shall be lawful for the original owner of such prize or his agent, or for any person authorized in that behalf by the government of the foreign state to which such owner belongs, or in which the ship captured as aforesaid may have been duly registered, to make application to the Exchequer Court of Canada for seizure and detention of such prize, and the Court shall, on due proof of the facts, order such prize to be restored. 13. Every order referred to in section 12 shall be executed and carried into effect in the same manner, and subject to the same right of appeal, as in case of any order made in the exercise of the ordinary jurisdiction of such Court; and in the meantime, and until a final order has been made, on such application the Court has power to make all such provisional and other orders as to the care or custody of such captured ship, goods, or merchandise, and (if the same be of perishable nature, or incurring risk of deterioration) for the sale thereof, and with respect to the deposit or investment of the proceeds of any such sale, as may be made by such Court in the exercise of its ordinary jurisdiction. 14. Any person who is guilty of an offence against this Act shall be deemed to be guilty of an indictable offence, and shall be punishable by fine not exceeding two thousand dollars, or by imprisonment for a term not exceeding two years, with or without hard labour, or by both fine and imprisonment; but



such offence may, instead of being prosecuted as an indictable offence, be prosecuted summarily under the provisions of the Criminal Code relating to summary convictions, and if so prosecuted, such offence shall be punishable by fine not exceeding five hundred dollars, or by imprisonment not exceeding twelve months, with or without hard labour, or by both fine and imprisonment. 15. (1) Any ship in respect of which an offence under section 7 has been committed and the equipment thereof, shall be forfeited to Her Majesty. (2) Any conveyance and the equipment thereof and all arms, ammunition and implements of war used in or forming part of an expedition in respect of which an offence has been committed under the provisions of section 10, shall be forfeited to Her Majesty. 1937, c. 32, s. 15. 16. For the purpose of giving jurisdiction in criminal proceedings under this Act, every offence, shall be deemed to have been committed, every cause or complaint to have arisen either in the place in which the same was committed or arose, or in any place in which the offender or person complained against may be. 17. Subject to the provisions of this Act, criminal proceedings arising hereunder shall be subject to and governed by the Criminal Code. 18. All proceedings for forfeiture of conveyances, goods or merchandise, under the provisions of this Act, may be taken in the Exchequer Court of Canada, or in any court of competent jurisdiction. 19. The Governor in Council may, from time to time, by order or regulation, provide for any or all of the following matters: (a) the application of the provisions of this Act, with necessary modifications, to any case in which there is a state of armed conflict, civil or otherwise, either within a foreign country or between foreign countries; (b) the seizure^ detention and disposition of conveyances, goods and merchandise; (c) the requirement of the consent of aii authority or authorities to prosecutions, seizures, detentions and forfeiture proceedings; (d) the designation of officers or authorities who may execute any of the provisions of this Act; and (e) the issue, restriction, cancellation and impounding of passports, whether within Canada or elsewhere, to the extent to which such action is deemed by him to be necessary or expedient for carrying out the general purposes of this Act. Hackworth, Digest, vol. 7, says, "unneutral service is service rendered by a neutral to a belligerent contrary to international law, whether direct or indirect." See Hill, The Origin of the Law of Unneutral Service (1929),

23 Am. J. Int. L. 56.

2) Contraband and Continuous Voyage The neutral flag covers enemy goods with the exception of contraband of war. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag. (Declaration of Paris 1856, articles 2 and 3.) Starke, op. tit., says at p. 448, "Contraband is the designation for such goods as the belligerents consider objectionable because they may assist the enemy in the conduct of war. . . .Belligerents may seize enemy contraband goods which are being carried to an enemy destination on neutral ships or neutral contraband goods which are being carried to an enemy destination on enemy ships" Articles clearly of a warlike or military character are considered to be absolute contraband; articles useful for purposes of peace as well as of war are considered to be relative contraband. The latter, if seized on their way to the enemy, are treated as absolute contraband and liable to seizure by a hostile belligerent. Goods not susceptible of use in war are known as free articles.



The Happy Couple Canada: Court of Vice-Admiralty at Halifax, Nova Scotia (1805) Stewart 65 DR. CROKE: . . . In this history of the transaction two circumstances appear, which must properly have engaged the attention of His Majesty's cruisers, and are now the subject for the consideration of this court, the armament, and the nature of the outward cargo. A vessel is found upon the high seas, belonging to a nation professing itself to be at peace with all the world, and in amity with Great Britain, armed and completely equipped for war, the captain assuming the character, and performing the duties of a commodore, having other armed vessels under his convoy, with a regular system of signals and martial discipline. To carry arms for self-defense, and the protection of person and property, under certain restrictions and limitations, is undoubtedly, one of the most sacred and imprescriptible rights of mankind; whether considered as individuals under the law of nature, or in their collective capacities, as members of established governments, under the law of nations. That such armaments in themselves, and without reference to the particular purpose for which they may be intended, are not unlawful, is a principle which is implied and recognized in the cases of the Maria, Paulsen, and the Elsabe, by their being sent for further proof; as has been properly observed by the counsel for the claimants. Nor do I think it of much consequence whether these vessels were armed by public, or only private, authority. That is rather a question between the American Government and its own members; as far as foreign nations are concerned, without a disavowal on the part of the government of the United States, a permission either express or tacit, must be presumed; because no subject can be supposed to act so openly in violation of the laws of his own country. The only question then is, the purport and object of such arming, and, whether it be such as is consistent with the duties of neutrality; which must be ascertained from the evidence in the case. The first document to which one would naturally have recourse upon this head, is the master's instructions (No. 2). They are general, "if you should meet with any armed vessel." They allow search according to the most usual mode of exercising that right, by receiving an officer on board; but they order resistance in case the cruiser insists upon their hoisting out their own boat. In these instructions the owners are setting up a new law of nations, and prescribing to cruisers a restriction in their mode of search, which they have no right to do. Cruisers, no doubt, may examine vessels as well by ordering persons to come on board their own ship, as by sending their own officers; or, in any other reasonable manner, under the responsibility of costs and damages, if they abuse their right. I have no scruple in saying that, if these instructions had been acted upon, or if it had appeared that they were designed against British cruisers, that I should have held them ground for confiscation. I agree with the doctrine laid down by Sir William Scott, in the Maria, Paulsen, that the delivery and acceptance of such instructions, and the sailing under them, are sufficient to complete the act of hostility, unless there is some abandonment of them. But the question is, against whom these instructions were directed. If, as the master alleges, they were intended to be applied only against French cruisers, and not against British vessels, I cannot hold them to be ground of confiscation in this Court. We have nothing to do with the abstract or



general duties of neutral nations; we are not sitting here in the spirit of pure Quixotism, to redress the wrongs of all the world; we have to decide only whether the subjects of any country have been guilty of a breach of their neutrality to Great Britain. There is much to support the master's explanation of these instructions. The depredations committed by the French upon American commerce are notorious. In the last war, when American vessels were captured by the French, the same salvage was allowed upon re-capture, as in the case of recovery from an enemy. The general apprehension of French cruisers was greatly increased in the present case, from the object of the voyage, which was to supply the enemies of France with ammunition, and the seas round St. Domingo swarmed with cruisers belonging to the Republic. The master swears they were armed expressly for their protection against these French cruisers, and for no other purpose whatever. Mackay, the mate, confirms this account, and adds, that he knew they would have allowed any British vessel of inferior force to board them, as they considered them as friends. The other witness tells the same story. Amongst the letters on board, the danger and number of French privateers is a prominent feature in the greater part of the different correspondence. In No. 9 is an account that the West Indian had been taken and ransomed by a French privateer, and it is accompanied with the proces verbal, and ransom-bill. The conduct of the master, as it appears in the log-book, was conformable to his declarations. Turk's Island, a British colony, was appointed as the general rendezvous, and they actually touched there in their outward voyage. All the evidence then, pointing one way, and there not being a single circumstance on the other side to excite even suspicion that this armament was directed against British cruisers, bound, as I am to decide according to the evidence before me, I cannot hold the arming of these vessels, in itself, to afford cause for condemnation. I say in itself; for after all, its legality must depend upon another question, in which it is completely involved; I mean the nature of the outward voyage. This was no ordinary transaction in the usual course of mercantile affairs. It was a contract to supply the new government erected in St. Domingo with gunpowder in very large quantities. In the account of sales it appears that 4,101 quarter-casks were delivered, equal to 92,016 pounds; for which, at the rate of a dollar and a quarter a pound, no less than 115,020 dollars were to be paid. Gunpowder being a contraband article, of all the most noxious, the question of the legality of this supply must depend upon the national character of St. Domingo, under the present government. For if it is to be considered as a colony of France, this Court has a safe rule for its decision in his majesty's instructions of June 24, 1803, which allows of a trade between neutral countries, and the enemy's colonies, with the express exception of such vessels as shall be supplying, or shall on the outward voyage have supplied them with articles contraband of war. That St. Domingo was a colony of France there can be no doubt. . . . Without entering into the question between the mother country and her colony, with which we have nothing to do, as far as third nations are concerned, the claim of France to this Island as her colony, must be allowed sufficient to impress that character upon it. . . . Taking then, as a basis or datum, that St. Domingo was a French



colony, and there being no proof, either public or private, that it has acquired another character, or is in alliance with Great Britain, to the extent this case requires; and it being proved that this vessel carried out gunpowder to a large amount, of which the present cargo is in part the return, I feel myself bound to decide, that it is a case which comes under the exception in His Majesty's proclamation, and consequently is liable to confiscation. The Kim, et al. Great Britain: Probate Division, 1915 [1915] Probate 215 Four neutral ships started in 1914 on voyages from New York to Copenhagen with very large cargoes of lard, hay, and meat products, as well as other foodstuffs. Two of them had cargoes of rubber, and one had a cargo of hides. They were captured on the high seas and their cargoes were seized on the ground that they were conditional contraband, alleged to be confiscable in the circumstances, with the exception of one cargo of rubber which was seized on the Kim as absolute contraband. The court was asked to deal only with the cargoes. THE PRESIDENT (SiR SAMUEL EVANS) : . . . Notwithstanding the state of war, there was no difficulty in the way of neutral ships trading to German ports in the North Sea, other than the perils which Germany herself had created by the indiscriminate laying and scattering of mines of all description, unanchored and floating outside territorial waters in the open sea in the way of the routes of maritime trade, in defiance of international law and the rules of conduct of naval warfare, and in flagrant violation of the Hague Convention to which Germany was a party. Apart from these dangers, neutral vessels could have, in exercise of their international right, voyaged with their goods to and from Hamburg, Bremen, Emden, and any other ports of the German Empire. There was no blockade involving risk of confiscation of vessels running or attempting to run it. Neutral vessels might have carried conditional and absolute contraband into these ports, acting again within their rights under international law, subject, only to the risk of capture by vigilant warships of this country and its Allies. But the trade of neutrals—other than the Scandinavian countries and Holland—with German ports in the North Sea having been rendered so difficult as to become to all intents impossible, it is not surprising that a great part of it should be deflected to Scandinavian ports from which access to the German ports in the Baltic and to inland Germany by overland routes was available, and that this deflection resulted, the facts universally known strongly testify. The neutral trade concerned in the present cases in that of the United States of America; and the transactions which have to be scrutinized arose from a trading, either real and bona fide, or pretended and ostensible only, with Denmark, in the course of which these vessels' sea voyages were made between New York and Copenhagen. Denmark is a country with a small population of less than three millions; and is, of course, as regards foodstuffs, an exporting, and not an importing country. Its situation, however, renders it convenient to transport goods from its territory to German ports and places like Hamburg, Altona, Liibeck, Stettin, and Berlin. .., The claimants did not supply any information as to the quantities of similar products which they had supplied or consigned to Denmark previous to the war. Some illustrative statistics were given by the Crown, with



regard to lard of various qualities, which are not without significance, and which form a fair criterion of the imports of these and like substances into Denmark before the war; and they give a measure for comparison with the imports of lard consigned to Copenhagen after the outbreak of war upon the four vessels now before the court. The average annual quantity of lard imported into Denmark during the three years 1911 to 1913 from all sources was 1,459,000 Ibs. The quantity of lard consigned to Copenhagen on these four ships alone was 19,252,000 Ibs. Comparing these quantities, the result is that these vessels were carrying towards Copenhagen within less than a month, more than thirteen times the quantity of lard which had been imported annually to Denmark for each of the three years before the war. . . . These facts give practical certainty to the inference that an overwhelming proportion (so overwhelming as to amount to almost the whole) of the consignments of lard in the four vessels we are dealing with, was intended for, or would find its way into Germany. These, however, are general considerations, important to bear in mind in their appropriate place; but not in any sense conclusive upon the serious questions of consecutive voyages, of hostile quality, and of hostile destination, which are involved before it can be determined whether the goods seized are confiscable as prize. . . . With regard to the general character of the cargoes, evidence was given by persons of experience that all the foodstuffs were suitable for the use of troops in the field; that some—e.g., the smoked meat or smoked bacon were similar in kind, wrapping and packing to what was supplied in large quantities to the British troops, and were not ordinarily supplied for civilian use; that others, e.g., canned or boiled beef in tins, were of the same brand and class as had been offered by Armour & Co. for the use of the British forces in the field; and that the packages sent by these ships could have only been made up for the use of troops in the field. As against this, there was evidence that goods of the same class had been ordinarily supplied to and for civilians. As to the lard, proof was given that glycerin (which is in great demand for the manufacture of nitro-glycerin for high explosives) is readily obtainable from lard. Although this use is possible, there was no evidence before me that any lard had been so used in Germany; and I am of opinion that the lard comprised ought to be treated upon the footing of foodstuffs only. It is largely used in German army rations. As to the fat-backs (of which large quantities were shipped) there was also proof that they could be used for the production of glycerin. . . . There was no market for these fat-backs in Denmark. The ProcuratorGeneral deposed as a result of inquiries that the Germans were very anxious to obtain fat-backs merely for the glycerin they contain. In these circumstances it is not by any means clear that fat-backs should be regarded merely as foodstuffs in these cases, and in the absence of evidence to the contrary, it is fair to treat them as materials which might either be required as food, or for the production of glycerin. The convenience of Copenhagen for transporting goods to Germany need hardly be mentioned. It is in evidence that the chief trade between Copenhagen and Germany since the war was through Liibeck, Stettin and Hamburg. The sea-borne trade of Liibeck has increased very largely since the war. It was also sworn in evidence that Liibeck was a German naval base. Stettin is a garrison town, and is the headquarters of army corps. It



has also shipbuilding yards where warships are constructed and repaired. It is Berlin's nearest seaport. It will be remembered that one of the big shipping companies asked a Danish firm to become nominal consignees for goods destined for Stettin. Hamburg and Altona had ceased to be the commercial ports dealing with commerce coming through the North Sea. They were headquarters of various regiments. Copenhagen is also a convenient port for communication with the German naval arsenal and fortress of Kiel and its canal, and for all places reached through the canal. These ports may properly be regarded, in my opinion, as bases of supply for the enemy, and the cargoes destined for these might on that short ground be condemned as prize. But I prefer, especially as no particular cargo can definitely be said to be going to a particular port, to deal with the cases upon broader grounds. Before stating the inferences and conclusions of fact, it will be convenient to investigate and ascertain the legal principles which are to be applied according to international law, in view of the state of things as they were in the year 1914. While the guiding principles of the law must be followed, it is a truism to say that international law, in order to be adequate, as well as just, must have regard to the circumstances of the times, including, "the circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it": vide The Jonge Margaretha (1799) 1 C Rob. 189. Two important doctrines familiar to international law come prominently forward for consideration: the one is embodied in the rule as to "continuous voyage," or continuous "transportation"; the other relates to the ultimate hostile destination of conditional and absolute contraband respectively. The doctrine of "continuous voyage" was first applied by the English Prize Courts to unlawful trading. There is no reported case in our Courts where the doctrine is applied in terms to the carriage of contraband; but it was so applied and extended by the United States Courts against this country in the time of the American Civil War; and its application was acceded to by the British Government of the day; and was, moreover, acted upon by the International Commission which sat under the Treaty between this country and America, made at Washington on May 8, 1871, when the commission, composed of an Italian, an American, and a British delegate, unanimously disallowed the claims in The Peterho ff (1866) 5 Wallace, 28, which was the leading case upon the subject of continuous transportation in relation to contraband goods. (The other well known American cases—e.g., The Stephen Hart, Blatchford Prize Cases, 387, The Bermuda (1866) 3 Wallace, 514, and The Springbok (1866) 5 Wallace, 1,—considered and applied the doctrine in relation to attempted breaches of the blockade.) I am not going through the history of it, but the doctrine was asserted by Lord Salisbury at the time of the South African war with reference to German vessels carrying goods to Delagoa Bay, and as he was dealing with Germany, he fortified himself by referring to the view of Bluntschli as the true view as follows: "If the ships or goods are sent to the destination of a neutral port only the better to come to the aid of the enemy, there will be contraband of war, and confiscation will be justified." It is essential to appreciate that the foundation of the law of contraband, and the reason for the doctrine of continuous voyage which has been



grafted into it, is the right of a belligerent to prevent certain goods from reaching the country of the enemy for his military use. Neutral traders, in their own interest, set limits to the exercise of this right as far as they can. These conflicting interests of neutrals and belligerents are the causes of the contest which have taken place upon the subject of contraband and continuous voyages. A compromise was attempted by the London Conference in the unratified Declaration of London. The doctrine of continuous voyage or continuous transportation was conceded to the full by the conference in the case of absolute contraband, and it was expressly declared that "it is immaterial whether the carriage of the goods is direct, or entails transhipment, or a subsequent transport by land." As to conditional contraband, the attempted compromise was that the doctrine was excluded in the case of conditional contraband, except where the enemy country had no seaboard. As is usual in compromises, there seems to be an absence of logical reason for the exclusion. If it is right that a belligerent should be permitted to capture absolute contraband proceding by various voyages or transport with an ultimate destination for the enemy territory, why should he not be allowed to capture goods which, though not absolutely contraband, become contraband by reason of a further destination to the enemy Government or its armed forces? And with the facilities of transportation by sea and by land which now exist the right of a belligerent to capture conditional contraband would be of a very shadowy value if a mere consignment to a neutral port were sufficient to protect the goods. It appears also to be obvious that in these days of easy transit, if the doctrine of continuous voyage or continuous transportation is to hold at all, it must cover not only voyages from port to port at sea, but also transport by land until the real, as distinguished from the merely ostensible, destination of the goods is reached. In connection with this subject, note may be taken of the communication of January 20, 1915, from Mr. Bryan, as Secretary of State for the United States Government, to Mr. Stone, of the Foreign Relations Committee of the Senate. It is, indeed, a State Document. In it the Secretary of State, dealing with absolute and conditional contraband, puts on record the following as the views of the United States Government: The rights and interests of belligerent and neutrals are opposed in respect to contraband articles and trade. . . . The record of the United States in the past is not free from criticism. When neutral, this Government has stood for a restricted list of absolute and conditional contraband. As a belligerent, we have contended for a liberal list, according to our conception of the necessities of the case. The United States has made earnest representations to Great Britain in regard to the seizure and detention of all American ships or cargoes bona fide destined to neutral ports. . . . It will be recalled, however, that American Courts have established various rules bearing on these matters. The rule of "continuous voyage" has been not only asserted by American tribunals, but extended by them. They have exercised the right to determine from the circumstances whether the ostensible was the real destination. They have held that the shipment of articles of contraband to a neutral port "to order" (this was of course before the Order in Council of October 29), from which, as a matter of fact, cargoes had been transhipped to the enemy, is corroborative evidence that the cargo is really destined to the enemy instead of to the neutral port of delivery. It is thus seen that some of the doctrines which appear to bear harshly upon neutrals at the present time are analogous to or outgrowths from policies adopted by the United States when it was a belligerent. The Government, therefore, cannot consistently protest against the application of rules which



it has followed in the past, unless they have not been practised as heretofore. . . . The fact that the commerce of the United States is interrupted by Great Britain is consequent upon the superiority of her navy on the high seas. History shows that whenever a country has possessed the superiority our trade has been interrupted, and that few articles essential to the prosecution of the war have been allowed to reach its enemy from this country. [U.S. Foreign Relations, 1914 Supplement, p. vi.]

It is not necessary to dilate further upon the history of the doctrine in question. I have no hesitation in pronouncing that, in my view, the doctrine of continuous voyage, or transportation, both in relation to carriage by sea and to carriage over land, had become part of the law of nations at the commencement of the present war, in accordance with the principles of recognized legal decisions, and with the view of the great body of modern jurists, and also with the practice of nations in recent maritime warfare. The result is that the Court is not restricted in its vision to the primary consignments of the goods in these cases to the neutral port of Copenhagen; but is entitled, and bound, to take a more extended outlook in order to ascertain whether this neutral destination was merely ostensible and, if so, what the real ultimate destination was. As to the real destination of a cargo, one of the chief tests is whether it was consigned to the neutral port to be there delivered for the purpose of being imported into the common stock of the country. This test was applied over a century ago by Sir William Grant in the Court of Appeal in prize cases in the case of The William (1806) 5 C. Rob. 385. It was adopted by the United States Supreme Court in their unanimous judgment in The Bermuda, 3 Wallace, 514, where Chase C.J., in delivering the judgment, said: "Neutrals may convey in neutral ships, from one neutral port to another, any goods, whether contraband of war or not, if intended for actual delivery at the port of destination, and to become part of the common stock of the country or of the port." Another circumstance which has been regarded as important in determining the question of real or ostensible destination at the neutral port was the consignment "to order or assigns" without naming any consignee. . . . The argument still remains good, that if shippers, after the outbreak of war, consign goods of the nature of contraband to their own order without naming a consignee, it may be a circumstance of suspicion in considering the question whether the goods were really intended for the neutral destination, and to become part of the common stock of the neutral country, or whether they had another ultimate destination. Of course, it is not conclusive. The suspicion arising from this form of consignment during war might be dispelled by evidence produced by the shippers. It may be here observed that some point was made that in many of the consignments the bills of lading were not made out "to order" simpliciter, but to branches or agents of the shippers. That circumstance does not, in my opinion, make any material difference. ... Upon this branch of the case—for reasons which have been given when dealing with the consignments generally, and when stating the circumstances with respect to each claim—I have no hesitation in stating my conclusion that the cargoes (other than the small portions acquired by persons in Scandinavia whose claims are allowed) were not destined for consumption or use in Denmark or intended to be incorporated into the general stock of that country by sale or otherwise; that Copenhagen was



not the real bona fide place of delivery; but that the cargoes were on their way at the time of capture to German territory as their actual and real destination. The second branch of the case raises the question whether the goods, which I have decided were on their way to German territory, were destined further for the use of the German Government or departments or for military use by the troops, or other persons actually engaged in warlike operations, or should be presumed to be so destined in the circumstances; . . . It may be well to note, and to record, that at the London Conference which produced the Declaration all the Allied Powers engaged in this war, and also the United States, had been in favour of continuing to apply the doctrine of continuous voyage or continuous transportation to conditional as well as to absolute contraband, a doctrine which, as we have seen, was nurtured and specially favoured by the Courts of the United States. As to the modifications regarding presumptions and onus of proof, as, for instance, where goods are consigned "to order" without naming a consignee, these are matters really affecting rules of evidence and methods of proof in this Court, and I fail to see how it is possible to contend that they are violations of any rule of international law. . . . The effect of the Order in Council is that, in addition to the presumptions laid down in art. 34 of the "Declaration of London," a presumption of enemy destination as defined by art. 33 shall be presumed to exist if the goods are consigned to or for an agent of the enemy States, or to a person in the enemy territory, or if they are consigned "to order," or if the ship's papers do not show who the consignee is; but in the latter cases the owners may, if they are able, prove that the destination is innocent. All the goods claimed by the shippers on the Kim were consigned to their own order, or to the order of their agents (which is the same thing), and not to any independent consignee; and they have all entirely failed to discharge the onus which lies upon them to prove that their destination was innocent. . . . I am of opinion that under the Order in Council the goods claimed by all the shippers on the Kim were confiscable as lawful prize. I now proceed to consider the confiscability of the cargoes on all the four vessels, apart entirely from the operation of the Order in Council upon the Kim cargoes. Having decided that the cargoes, though ostensibly destined for Copenhagen, were in reality destined for Germany, the question remains whether their real ultimate destination was for the use of the German Government or its naval or military forces. If the goods were destined for Germany, what are the facts and the law bearing upon the question whether they had the further hostile destination for the German Government for military use? In the first place, as has already been pointed out, they were goods adapted for such use; and further, in part, adapted for immediate warlike purposes in the sense that some of them could be employed for the production of explosives. They were destined, too, for some of the nearest German ports like Hamburg, Liibeck, and Stettin, where some of the forces were quartered, and whose connection with the operations of war has been stated. It is by no means necessary that the Court should be able to fix the exact port. . . . Regard must also be had to the state of things in Germany during this war in relation to the military forces, and to the civil population, and to



the method described in evidence which was adopted by the Government in order to procure supplies for the forces. The general situation was described by the British Foreign Secretary in his Note to the American Government on February 10, 1915, as follows: "The reason for drawing a distinction between foodstuffs intended for the civil population and those for the armed forces or enemy Government disappears when the distinction between the civil population and the armed forces itself disappears. In any country in which there exists such a tremendous organisation for war as now obtains in Germany, there is no clear division between those whom the Government is responsible for feeding and those whom it is not. Experience shows that the power to requisition will be used to the fullest extent in order to make sure that the wants of the military are supplied, and however much goods mays be imported for civil use it is by the military that they will be consumed if military exigencies require it, especially now that the German Government have taken control of all the foodstuffs in the country." I am not saying that the last sentence is applicable to the circumstances of this case. . . . "In the peculiar circumstances of the present struggle where the forces of the enemy comprise so large a proportion of the population, and where there is so little evidence of shipments on private as distinguished from Government account, it is most reasonable that the burden of proof should rest upon claimants." It was given in evidence that about 10 millions of men were either serving in the Germany army, or dependent upon or under the control of the military authorities of the German Government, out of a population of between 65 and 70 millions of men, women, and children. Of the food required for the population, it would not be extravagant to estimate that at least one-fourth would be consumed by these 10 million adults. Apart altogether from the special adaptability of these cargoes for the armed forces, and the highly probable inference that they were destined for the forces, even assuming that they were indiscriminately distributed between the military and civilian population, a very large proportion would necessarily be used by the military forces. So much as to the probable ultimate destination in fact of the cargoes. Now as to the question of the proof of intention on the part of the shippers of the cargoes. It was argued that the Crown as captors ought to show that there was an original intention by the shippers to supply the goods to the enemy Government or the armed forces at the inception of the voyage as one complete commercial transaction, evidenced by a contract of sale or something equivalent to it. It is obvious from a consideration of the whole scheme of conduct of the shippers that if they had expressly arranged to consign the cargoes to the German Government for the armed forces, this would have been done in such a way as to make it as difficult as possible for belligerents to detect it. If the captors had to prove such an arrangement affirmatively and absolutely, in order to justify capture and condemnation, the rights of belligerents to stop articles of conditional contraband from reaching the hostile destination would become nugatory. It is not a crime to dispatch contraband to belligerents. It can be quite legitimately sent subject to the risk of capture; but the argument proceeded as if it were essential for the captors to prove the intention as strictly as

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would be necessary in a criminal trial; and as if all the shippers need to do was to be silent, to offer no explanation, and to adopt the attitude towards the Crown, "Prove our hostile intention if you can." In the first place, it may be observed that it is not necessary that an intention at the commencement of the voyage should be established by the captors either absolutely or by inference It is, no doubt, incumbent upon the captors in the first instance to prove facts from which a reasonable inference of hostile destination can be drawn, subject to rebuttal by the claimants. . . . So far as it is necessary to establish intention on the part of the shippers, it appears to me to be beyond question that it can be shown by inferences from surrounding circumstances relating to the shipment of and dealings with the goods. Cargoes are inanimate things, and they must be sent on their way by persons. If that is all that was meant by counsel for the claimants, when they argued that "intention" must be proved, their contention may be conceded. But it need not be an "intention" proved strictly to have existed at the beginning of the voyage, or as an obligation under a definite commercial bargain. If at the time of the seizure the goods were in fact on their way to the enemy Government or its forces as their real ultimate destination, by the action of the shippers, whenever the project was conceived, or however it was to be carried out; if, in truth, it is reasonably certain that the shippers must have known that that was the real ultimate destination of the goods (apart of course from any genuine sale to be made at some intermediate place), the belligerent had a right to stop the goods on their way, and to seize them as confiscable goods. In the circumstances of these cases, especially in view of the opportunity given to the claimants, who possess the best and fullest knowledge of the facts, to answer the cases made against them, any fair tribunal, like a jury, or an arbitrator, whose duty it was to judge facts, not only might but almost certainly would come to the conclusion that at the time of the seizure the goods which remained the property of the shippers were, if not as to the whole, at any rate as to a substantial proportion of them at the time of seizure on their way to the enemy for its hostile uses. The facts in these cases, in my opinion, more than amply satisfy the "highly probable destination" spoken of by Lord Stowell. . . . I have come to the clear conclusion from the facts proved, and the reasonable and, indeed, irresistible inferences from them, that the cargoes claimed by the shippers as belonging to them at the time of seizure were not on their way to Denmark to be incorporated into the common stock of that country by consumption, or bona fide sale, or otherwise; but, on the contrary, that they were on their way not only to German territory, but also to the German Government and their forces for naval and military use as their real ultimate destination.... Even if this conclusion were only accurate as to a substantial proportion of the goods, the whole would be affected; because "contraband articles are said to be of an infectious nature, and they contaminate the whole cargo belonging to the same owners. The innocence of any particular article is not usually admitted to exempt it from the general confiscation." Kent's Commentaries (12th Ed. by Holmes, J.) p. 142. The Declaration of London (art. 42) is to the same effect; and M. Renault's report on it is: "The owner of the contraband is punished in the first place by the condemnation



of his contraband property, and in the second by that of the goods, even if innocent, which he may possess on board the same vessel." The Hakan Great Britain: Judicial Committee of the Privy Council, 1917 [1918] A.C. 148 LORD PARKER OF WADDINGTON: The Swedish steamship Hakan, the subject of this appeal, was captured at sea by H.M.S. Nonsuch on April 4, 1916, having sailed the same day from Haugesund in Norway on a voyage to Llibeck in Germany with a cargo of salted herrings. Foodstuffs had as early as August 4, 1914, been declared to be conditional contraband. The writ in the present proceedings claimed condemnation of both ship and cargo, the former on the ground that it was carrying contraband goods and the latter on the ground that it consisted of contraband goods. It should be observed that the cargo, being on a neutral ship, was, even if it belonged to enemies, exempt from capture unless it consisted of contraband goods.... ; , • The cargo owners did not appear or make any claim in the action, although according to the usual practice of the Prize Court, evenr enemies may appear and be heard in defence of their rights under an international agreement. The question whether the goods were contraband was, however, fully argued by counsel for the owners of the ship, a Swedish firm carrying on business at Gothenburg. The President condemned the cargo as contraband. He also condemned the ship for carrying contraband. The owners of the ship have now appealed to His Majesty in Council. Under these circumstances the first question to be decided is whether the cargo was rightly condemned as contraband, for if it was not there could be no case against the ship. In their Lordships' opinion, goods which are conditional contraband can be properly condemned whenever the Court is of opinion, under all the circumstances brought to its knowledge, that they were probably intended to be applied for warlike purposes: The Jonge Margaretha, 1 C. Rob. 189. The fact alone that the goods in question are on the way to an enemy base of naval or military equipment or supply would justify an inference as to their probably application for warlike purposes. But the character of the place of destination is not the only circumstance from which this inference can be drawn. All the known facts have to be taken into account. The fact that the goods are consigned to the enemy Government, and not to a private individual, would be material. The same would be the case if, though the goods are consigned to a private individual, such individual is in substance or in fact the agent or representative of the enemy Government. In the present case Liibeck, the port of destination of the goods, is undoubtedly a port used largely for the importation into Germany of goods from Norway and Sweden; but it does not appear whether it is used exclusively or at all as a base of naval or military equipment. On the other hand, it is quite certain that the persons to whom the goods were consigned at Liibeck were bound forthwith to hand them over to the Central Purchasing Company, of Berlin, a company appointed by the German Government to act under the direction of the Imperial Chancellor for purposes connected with the control of the food supplies rendered necessary by the war. The proper inference seems to be that the goods in question are iii effect goods requisitioned by the Government for the purposes of the war,



It may be quite true that their ultimate application, had they escaped capture, would have been to feed civilians, and not the naval or military forces of Germany; but the general scarcity of food in Germany had made the victualling of the civil population a war problem. Even if the military or naval forces of Germany are never supplied with salted herrings, their rations of bread or meat may well be increased by reason of the possibility of supplying salted herrings to the civil population. Under these circumstances, the inference is almost irresistible that the goods were intended to be applied for warlike purposes, and, this being so their Lordships are of opinion that the goods were rightly condemned. The second question their Lordships have to determine relates to the condemnation of the ship for carrying the goods in question. It is of course quite clear that if art. 40 ["A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo."] of the Declaration of London be applicable, the ship was rightly condemned, inasmuch as the whole cargo was contraband. The Declaration of London has, however, no validity as an international agreement. It was, it is true, provided by the Order in Council of October 29, 1914, that during the present hostilities its provisions should, with certain very material modifications, be adopted and put in force. But the Prize Court cannot, in deciding questions between His Majesty's Government and neutrals, act upon this Order except is so far as the Declaration of London, as modified by the Order, either embodies the international law or contains a waiver in favour of neutrals of the strict rights of the Crown. It is necessary, therefore, to consider the international law with regard to the condemnation of a ship for carrying contraband apart from the Declaration of London. It seems quite clear that at one time in our history the mere fact that a neutral ship was carrying contraband was considered to justify its condemnation, but this rule was subsequently modified. Lord Stowell deals with the matter in The Neutrality [1801] 3 C. Rob. 295. "The modern rule of the law of nations is, certainly," he says, "that the ship shall not be subject to condemnation for carrying contraband articles. The ancient practice was otherwise; and it cannot be denied, that it was perfectly defensible on every principle of justice. If to supply the enemy with such articles is a noxious act with respect to the owner of the cargo, the vehicle which is instrumental in effecting that illegal purpose cannot be innocent. The policy of modern times has, however, introduced a relaxation on this point; and the general rule now is, that the vessel does not become confiscable for that act. But this rule is liable to exceptions: where a ship belongs to the owner of the cargo, or where the ship is going on such service, under a false destination or false papers; these circumstances of aggravation have been held to constitute excepted cases out of the modern rule, and to continue them under the ancient one." It is to be observed that Lord Stowell does not say that the particular cases he refers to are the only exceptions to the modem rule. On the contrary, his actual decision in The Neutralitet creates a third exception. It should be observed, too, that in a later part of his judgment he states the reason for the modification of the ancient rule to be the supposition that noxious or doubtful articles might be carried without the personal knowledge of the owner of the ship. He held in the case before him that this ground for the modification of the rule entirely failed, so that the ancient rule applied. The reasoning is sound. For if the ancient rule was modified



because of the possible want of knowledge on the part of the shipowner, it is perfectly logical to treat actual knowledge on the part of the shipowner as a good ground for excepting any particular case from the modern rule. Knowledge will also explain the two main exceptions to which Lord Stowell refers: If the shipowner also owns the contraband cargo, he must have this knowledge; and if he sails under a false destination or with false papers, it is quite legitimate to infer this knowledge from his conduct. In his earlier decision in The Ringende Jacob, [1798] 1 C. Rob. 89, Lord Stowell had stated the modern rule to be that the carrying of contraband is attended only with loss of freight and expenses, except where the ship belongs to the owner of the contraband cargo or where the simple misconduct of carrying a contraband cargo has been connected with other malignant and aggravating circumstances. If by malignant and aggravating circumstances Lord Stowell meant only circumstances from which knowledge of the character of the cargo might properly inferred, the rule thus stated does not differ from that laid down in the subsequent case of The Neutralitet. But the words used have by some writers been taken as indicating that, in Lord Stowell's opinion, besides knowledge of the character of the cargo, there must be on the part of the shipowner some intention or conduct to which the epithets "malignant or aggravating" can be applied in a real as opposed to a rhetorical sense. Any such hypothesis seems, however, to vitiate the reasoning of Lord Stowell in The Neutralitet. Sailing under a false destination or false papers may possibly be called malignant or aggravating. There is not only the knowledge of guilt, but an attempt to evade its consequences. But in the case of the shipowner who also owns the contraband on board his ship it is difficult to see where the malignancy or aggravation lies, if it be not in the knowledge of the character of the goods on board. If it be malignant or aggravating on the part of the owner of the goods to consign them to the enemy, it must be equally malignant and aggravating on the part of the shipowner knowingly to aid in the transaction. Nevertheless, it was this construction of Lord Stowell's words in The Ringende Jacob rather than the reasoning on which his decision in The Neutralitet case was based that was adopted by the Supreme Court of the United States in the case of The Bermuda (1865), 3 Wall. 514, 555. In that case Chase C.J., in delivering the opinion of the Court say as to the relaxation of the ancient rule: "It is founded on the presumption that the contraband shipment was made without the consent of the owner given in fraud of belligerent rights, or, at least, without intent on his part to take hostile part against the country of the captors; and it must be recognized and enforced in all cases where that presumption is not repelled by proof. The rule, however, requires good faith on the part of the neutral, and does not protect the ship where good faith is wanting. . . .Mere consent to transportation of contraband will not always or usually be taken to be a violation of good faith. There must be circumstances of aggravation. The nature of the contraband articles and their importance to the belligerent, and the general features of the transaction, must be taken into consideration in determining whether the neutral owner intended or did not intend, by consenting to the transportation, to mix in the war." Passing from the English and American decisions to the views which were at the commencement of the present hostilities entertained by the Prize Courts or jurists of other nations, we find what at first sight appears to be considerable divergence of opinion. If, however, the true principle be that knowledge of the character of the cargo is a sufficient ground for



depriving a shipowner of the benefit of the modern rule, this divergence is more apparent than real. It reduces itself to a difference of opinion as to the circumstances under which the knowledge may be inferred, and if it be remembered that knowledge on the part of the shipowner of the character of the cargo must be largely a matter of inference from a great variety of circumstances, such difference of opinion is readily intelligible. Referring, for example, to the view entertained in Holland, their Lordships find that, although the ship is prima facie confiscable if an important part of the cargo be contraband, proof that the master or the charterers could not have known the real nature of the cargo will secure the ship's release. In other words, the proportion of the contraband to the whole cargo raises a presumption of knowledge which may be rebutted. Again, according to the views held in Italy, the ship carrying contraband is liable to confiscation only where the owner was aware that his vessel was intended to be used for the carrying of contraband. Here knowledge is made the determining factor, the manner in which knowledge is to be proved or inferred being left to the general law. Again, according to the views entertained in Germany, a ship carrying contraband can only be confiscated if the owner or the charterer of the whole ship or the master knew or ought to have known that there was contraband on board, and if that contraband formed more than a quarter of the cargo. Here also knowledge is made the determining factor, though there is a concession to the neutral if the proportion of the contraband to the whole cargo be sufficiently small. Once more, in France the test of the right to confiscate is whether or not the contraband is threefourths in value of the whole cargo. This view may be looked on as defining the circumstances in which an irrebuttable inference of knowledge arises. The views entertained in Russia and Japan are similarly explicable. In their Lordships' opinion the principle underlying all these views is the same. There can be no confiscation of the ship without knowledge on the part of the owner, or possibly of the charterer or master, of the nature of the cargo, but in some cases the inference as to knowledge arising from the extent to which: the cargo is contraband cannot be rebutted, while in others it can, arid; in some cases, even where there is the requisite knowledge, the contraband must bear a minimum proportion to the whole cargo. It follows that the views entertained by foreign nations point to knowledge of the character of the goods being alone sufficient for condemnation of a vessel for carrying contraband; in other words, they support the principle to be derived from the reasoning in The Neutralitet rather than the principle which has been deduced from the dictum in The Ringende Jacob and developed in The Bermuda. It should be observed that both Westlake and Hall agree that knowledge is alone sufficient to justify confiscation: see Westlake, International Law (War), 2nd ed. p. 291; Hall, International Law, 6th ed.< p. 666. Their Lordships consider that in this state of the authorities they ought to hold that knowledge of the character of the goods on the part of the owner of the ship is sufficient to justify the condemnation of the ship—at any rate, where the goods in question constitute a substantial part of the whole cargo. In the fight of what has been said as to the rule of international law their Lordships will now proceed to consider the special facts of this case. The owners of the ship are a Swedish firm carrying on business at Gothenburg. On January 8, 1916, they chartered the ship to a German firm of fish dealers for a period of six weeks from the time when the vessel was placed



at charterer's disposal, with power for the charterers to prolong this period up to May 16, 1916. The voyages undertaken by the charterers were to be from Scandinavian to German Baltic ports. It must have been quite evident to the owners that the ship would be used for the importation of fish into Germany. They must also have known that foodstuffs were conditional contraband. It is almost inconceivable that they did not also know of the food difficulties in Germany and of the manner in which the German Government had in effect requisitioned salted herrings to meet the exigen^ cies of the war. They had an opportunity in the Court below of establishing their want of knowledge if it existed, but they did not attempt to do so. The inference that they did in fact know that the vessel would be used for the purpose for which is was used is irresistible. If knowledge of the character of the goods be the true criterion as to confiscability, the vessel was rightly condemned. . . . A shipowner who lets his ship on time charter to an enemy dealer in conditional contraband for the purposes of this trade at a time When the conditional contraband is vitally necessary to and has been requisitioned by the enemy Government for the purpose of the war is, in their Lordships' opinion, deliberately "taking hostile part against the country of the captors" and "mixing in the war" within the meaning of those expressions as used by Chase CJ. in The Bermuda. 3) Blockade The Thomas Wilson Canada: Court of Vice-Admiralty at Halifax, Nova Scotia (1811), Stewart, p. 269 The Wilson sailed from Philadelphia to Tonningen with a cargo of colonial goods. In Tonningen she received goods brought from Hamburgh by land as this city was blockaded by the British fleet. The whole of the cargo was American. DR. CROKE: . . . The question then is, whether by such landing and payment of duties, the continuity of the passage of these goods was brokeii, and the voyage from Tonningen became a new voyage, and a new transaction. This must depend upon the object intended to be answered by it, or the purpose of the parties. If it was there landed for sale, for the benefit of merchants, there resident, or with any other view connected with the commerce of Tonningen, the two voyages from Hamburgh to Tonningen, and from thence to America, might properly have been considered as two distinct transactions; and an offense committed upon the first passage, might not have been subject to visitation, upon a capture upon a second voyage. But if these goods stopped at Tonningen, only for the purpose of a farther conveyance, on their way to America, without any sort of connection with Tonningen, it must be considered as one unbroken transaction. By the original orders from the consignors, they were to be sent from Hamburgh to the United States. Thither they were at first consigned. Whether direct or circuitous, that was the sole and real voyage. They were never intended to stop at Tonningen, for any mercantile purpose whatever. They were sent there merely to be shipped in a vessel which could not approach Hamburgh, on account of the blockade. It was one designated voyage from Hamburgh to the United States, and the goods were landed, warehoused, and paid duties only in furtherance of that voyage. If it was necessary to do so, the parties could not accomplish



their original object without it, and that original object was never deviated from. If it was not unavoidable, it must have been done fraudulently, for the sake of coloring the real nature of the business. If these goods were brought through the mouth of the blockaded port, no matter whether in great, or in small vessels; they then broke the blockade, and where liable to pie consequences till they arrived at their final destination, nothwithstanding they may have touched, or even have been landed at fifty places. This final destination was the United States, the port of consignment. During the whole intermediate period from their quitting Hamburgh, to their reaching Philadelphia, they were liable to seizure and confiscation. It has however been argued, on behalf of the claimant, that whatever may be the case with such parts of this cargo, as belonged to merchants of Hamburgh, there were others which were brought from Basle, and other neutral places, and which were brought down to Hamburgh, merely for the purpose of shipment: these, it is said, cannot be considered as having broken the blockade of Hamburgh, which was intended to operate only upon the commerce of that place, and not of remote and inland places. It may be observed, in answer to those arguments, that the trade of any place is not confined to the produce and manufactures of the town itself, or of the country where it is situated. Hamburgh, in particular, is the centre of commerce, for a large portion of the continent. Great part of the business, and of the profits of the merchants there, arise from this trade, of consignments from a great number of other places. But the blockade is not limited to any one particular species of commodities, or mode of trade. It is a prohibition of all intercourse whatever, and the commission trade is as much its object as where the merchants are the proprietors of the goods. There are other goods which have been brought from inland places within the dominions of the enemy to Tonningen, not through Hamburgh, or any other blockaded port, but either by land, or through open neutral ports, and belonging to neutrals. . . . The general principles which I have discussed, considered in their application to the cargo of this vessel, may be thus shortly recapitulated. That all such goods as may have been brought from Hamburgh, or any other blockaded port, to Tonningen by sea, are liable to condemnation. That all such goods as have been brought from Hamburgh, or any other blockaded port, by land, or inland navigation, and such as have been brought from ports not blockaded, or from the interior of the continent, whether hostile or neutral, provided they belong to neutral proprietors, are entitled to restitution. . . . Having thus far disposed of this cargo, I proceed to the vessel. The voyage in which this vessel was taken was prima facie lawful; Tonningen was an open port. Can then a vessel be guilty of the breach of a blockade, without entering the blockaded port? Most certainly it may. Suppose a vessel lay just off the mouth of a harbor, and received a cargo from boats or lighters, if this is admitted to be a violation of a blockade, the mere circumstance of distance is perfectly immaterial, whether the vessel was stationed at one, two, ten, or twenty leagues; for, in truth, it is not the entrance, or the departure of the vessel, which it is the object of a blockade to prevent, but it is the trade, the exports, and the imports; if the distance is nothing, it cannot signify whether a vessel is lying in a neighboring port or out at sea. This point has been already determined by the cases before cited, in which ships lying in open ports, for taking on board cargoes from blockaded ports, were held liable to condemnation. Those cases are decisive as to the present case, if the fact is proved, unless there are any general favorable circumstances to distinguish it. Whether the cargo has actually



broken the blockade, is not yet ascertained, but it depends upon the farther proof to be brought in. The only question now to be considered is, whether supposing that fact to be proved, the ship would be subject to condemnation. Because, if it would be so liable, the ship must wait till the further proof arrives, before it can be decided upon; but if the vessel would not be subject to condemnation, notwithstanding the facts should turn out unfavorably for the cargo, it would be unnecessary to wait for the further proof, which could not then affect the ship, and the owners would be entitled to immediate restitution. .. . NOTE See also the Maria (1805), 5 Ch. Rob. 364.

The Orion Canada: Court of Vice-Admiralty, Nova Scotia, 1813 Stewart, p. 497 The Orion sailed from New York on May 15, 1813, bound to Lisbon under a licence from the British Secretary of State, having on board a cargo of flour. It was later captured and brought before a British Court of Prize. The issue before the court was whether the vessel and cargo are liable to condemnation, notwithstanding the licence, for having broken the blockade of New York. DR. CROKE: . . . There are two points therefore for consideration. The first is a question of fact, whether New York was blockaded at the time she sailed from thence. The second is a question of law, whether, supposing the blockade to be established, the license can protect the consequences of coming out of that port during its continuance. The master has sworn roundly "that he had no knowledge of the blockade." But there is full proof that the notification of it, which was made by Lord Castlereagh, by the authority of the Prince Regent on March 20, was at that time known at New York. It is contained at full length in the Evening Post, a newspaper published in that city, of May 6, and consequently nine days before the vessel sailed; and it is morally impossible that information, of so important a nature to the mercantile inhabitants should not have been universally intercommunicated amongst them. It has been argued by the captors that this notification alone establishes a blockade. That being a public act, and proceeding from so high an authority, nothing more is required, and that it would constitute to all intents and purposes a blockade even if there were not a single vessel off the port; that the cases from which the contrary might be inferred were cases of notification from commanders in chief, and not by the public authority of the sovereign, and that in the blockade of the French coast it was never required that there should be any vessels stationed off the ports; that even if it were necessary to prove the fact of the ports being actually blocked by ships of war, the capture of this and many other vessels are sufficient evidence of it. It has always been held by the British Courts of Prize, that to constitute a blockade, two things were required—that the ports in question should be invested by a force adequate to the purpose of preventing egress and ingress without imminent danger of capture, and that notice should be given of it to all the parties who were to be legally affected by it. The actual investment is absolutely essential to constitute this state, and as early as the West India cases it was decided by the Court of Appeals, "that a declaration unsupported by the fact will not be sufficient to establish a blockade." In this respect there is no difference whatever between a public, and the most



private notification. The object of both is the same, merely, to inform the party who is to be charged with the breach of the blockade, that a blockade exists. A notification given by a commander is as much under the authority of the sovereign, as if it were an act immediately proceeding from him, because commanders derive from him the power of blockading such ports as they may judge proper. The most formal and diplomatic notification between governments is only meant for the information of individuals. Public notifications, made to the government of a country, will affect the inhabitants of that country with the knowledge of it after a certain time, as a presumption juris et de jure, because it is the duty of governments to communicate to all their subjects: but whenever it can be proved that any individuals are acquainted with the existence of the blockade by any other means, the consequences will be to them the same. But under all modes of notification it is absolutely necessary that there should be the fact of an actual investment, without which no notification is effectual. What has been called the blockade of the French coasts by the wellknown order of April 26, forms no exception to the principles maintained upon this subject by the British nation. That was a measure perfectly different from a blockade. It did not profess to be a blockade, but on the other hand the words of the order were, "that those ports should be subject to the same restrictions as if the same were actually blockaded by His Majesty's naval forces in the most strict and rigorous manner." The word blockade was introduced not as a definition of the measure itself but by way of explanation of the mode in which it was to be executed; in the manner of an actual blockade. No investment was even supposed to take place, because it was impossible that there could be an investment to the whole extent of the coast affected by the order. It was not therefore a blockade, but it was a retaliatory measure to counteract the effects of an unjust and unlawful attempt to ruin this country by cutting off its resources. It was not directed against particular ports, but against the enemy's trade universally. It was a total prohibition of all commerce with the enemy, as he had prohibited all commerce with Great Britain, and it would have been ineffectual and futile, if it had not comprehended all the dominions of France, and if it had been limited within the legal boundaries of a blockade. As none of the rules of law relating to blockades, were therefore applicable to those orders which militated against their design, so no inference whatever can be drawn from thence, that the laws of blockade, before admitted in the British courts, have been in any manner altered or deviated from. . . . There is no evidence that the port of New York has ever yet been