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Parlement Belge,84 a Belgian public vessel, used however for mail and passenger service, and libelled for damages on account of a collision in the Thames, the counsel for the libellee in the Admiralty Division of the High Court attempted to prove the immunity of the vessel on account of a convention between Great Britain and Belgium conferring a public character on the vessel. Sir Robert Phillimore for the court ruled against this contention and declared the vessel liable, saying that conventions affecting private rights are not subject to the cognizance of the court until Parliament has sanctioned them. On appeal 85 the decision was reversed, but on the ground that as property of the King of Belgium the vessel was immune by customary international law. No decision was given on the application of the convention and apparently the view of the court below was sustained on this point. This interesting decision, therefore, seems to show that customary international law enjoys a greater legal validity in England than conventional international law.

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4. APPLICATION OF TREATY PROVISIONS AS A RULE OF DECISION As a rule of decision, conventional international law may frequently be applied by courts, either while exercising an administrative jurisdiction to determine the competence of public officers, or while exercising a civil or criminal jurisdiction to determine the rights of private persons. Treaties have given public officers competence to perform such functions as interning belligerent troops and war ships violating neutrality, enforcing customs and navigation rules,87 assisting in various branches of international administration, such as the international postal, telegraphic, radio-telegraphic, and quarantine services,88 and assisting foreign governments by extraditing criminals and returning deserting seamen.89 Courts of the United States, Switzerland, Germany, and to a 84 The Parlement Belge, L. R. (1879), 4 P. D. 129; Baldwin, op. cit., Am. Law Rev., 35:224; Picciotto, op. cit., p. 67.

85 The Parlement Belge, L. R. (1880), 5 P. D. 197.

86 Hague Conventions, 1907, V, xiii.

87 For Rhine and Danube Conventions, see Kaufmann, op. cit., pp. 17, 117-119; supra, note 62.

88 On these and similar conventions, see P. S. Reinsch, Public International Unions, Boston, 1911.

89 Practically all countries have concluded bi-lateral extradition treaties with other

less extent France, with an acknowledged competence in the case, have applied treaties as a rule of decision in exercising an administrative jurisdiction over such officers. Thus in the United States the competence of officers, acting under direction of the President, to arrest and intern Mexican soldiers violating American neturality, was upheld on habeas corpus, on the ground that one of the Hague Conventions furnished such competence; 90 and in a number of cases involving customs administration treaties have furnished the rule of decision.91 Some early cases supported the right of police officers to make arrests for extradition or return of deserting seamen on application of the foreign consul, supported by treaty alone,92 but such competence is now conferred by statute.93 In continental Europe the competence of courts to assume administrative jurisdiction on the basis of an alleged violation of treaty rights has not been uniformly supported, but where such jurisdiction has been exercised, the treaty provision has furnished the rule of decision.94 In England it is clear that treaties cannot furnish the rule of decision in determining the competence of officers. Thus in Walker v. Baird 95 the authority of a naval officer to restrain the operation of a lobster factory in Newfoundland was denied and Walker, the officer, was found liable for trespass, even though his act was performed in pursuance of a convention between Great Britain and France, with the execution of which Walker had been entrusted by the Admiralty.

The private rights regulated by treaty cover a wide field, including such matters as the right of aliens to own, transmit, and inherit property, to engage in commerce and business, and to enjoy the civil rights.

states. Commercial and consular treaties generally provide for the return of deserting seamen on application of the consul.

90 Ex parte Toscano, 208 Fed. Rep. 938.

91 Nichols v. U. S., 7 Wall. 122; Schillinger v. U. S., 155 U. S. 163; Campbell v. U. S., 88 U. S. 407.

92 U. S. v. Robbins, Bee, Adm. 266; Case of the British Prisoners, 1 Wood & Min. 66. For recent cases supporting the authority of executive officers to make arrests in pursuance of treaty, see, for extradition, Terlinden v. Ames, 184 U. S. 270 (1901), Scott, 436, and for return of deserting seamen, Tucker v. Alexandroff, 183 U. S. 424, 437.

93 Supra, note 68.

94 Kaufmann, op. cit., p. 86, et seq.

95 Walker v. Baird, L. R. (1892), A. C. 491.

of nationals. General international agreements have given such rights as those of copyright, trade mark, and patent protection in foreign countries, while international law-making conventions have defined many of the rights and duties of the subjects of neutral and belligerent states in time of war. Such rights as these are appropriate for judicial application and have been applied by courts as a rule of decision in countries where treaties form an immediate source of law.

In the United States the application of treaties to protect the rights of aliens to own real estate,96 to inherit property,97 to be free from confiscation of property,98 and to engage in labor,99 have been upheld even when in conflict with state statutes. United States courts have also applied the provisions of treaties in trying persons received by extradition, 100 and in administering customs claims, 101 claims based on treaties ceding territory to the United States, 102 and in prize cases.

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In Switzerland, the Bundesgericht held that a treaty with France, providing that the minor children of French parents naturalized in Switzerland, should be permitted to retain French citizenship, superseded an earlier Swiss statute by its own effect, 104 and the same court has applied the rule of a number of extradition treaties even when in opposition to a statute passed subsequently to the ratification of the treaty, 105

The German Reichsgericht held in 1891 106 that the copyright treaty 96 Hauenstein v. Lynham, 100 U. S. 483.

97 Chirac v. Chirac, 2 Wheat. 259.

98 Ware v. Hylton, 3 Dall. 199.

99 This right of resident aliens has been upheld under the constitutional guarantee of "equal protection of the laws," Yick Wo v. Hopkins, 118 U. S. 356, 369, though treaty guarantees have sometimes been mentioned incidentally, Truax v. Raich, U. S. Sup. Ct. (1915), A. J. I. L., 10:158.

100 U. S. v. Rauscher, 119 U. S. 407 (1886), Scott, 274.

101 Whitney v. Robertson, 21 Fed. Rep. 566.

102 U. S. v. Moreno, 1 Wall. 400, Scott, 666; Strother v. Lucas, 12 Pet. 436; U. S. v. Arredondo, 6 Pet. 691.

103 The Nereide, 9 Cranch, 388; Moodie v. The Phoebe Anne, 3 Dall. 319. 104 Urtheil des Schweiz Bundesgerichts, April 21, 1882, Ent., 8:275.

105 Ibid., June 17, 1892, Ent., 18:193; March 17, 1893, 19:129, 136; Oct. 21, 1896, 22:450; Dec. 15, 1896, 22:1030; Feb. 15, 1894, 20:57; March 15, 1894, 20:61; July 17, 1894, 20:343; Sept. 18, 1895, 21:739; March 2, 1895, 21:79. For discussion of these cases see Kaufmann, op. cit., p. 83.

106 Urtheil des Deutsches Reichsgerichts, Nov. 23, 1891, Ent. Str., 22:261.

with France of 1883 superseded a German statute of 1870, and of its own force deprived a German subject of his right, valid under the German law, to publish a French musical work.

As has been stated, in France, both the Cour de Cassation and the Conseil d'Etat have in a number of cases involving private rights applied treaties as a rule of decision, the former asserting that 107 "The courts have the right of interpreting treaties, whenever controversies which require such interpretation have for their object interests within their (the courts') jurisdiction." But this view has been by no means uniform, and it seems that the Cour de Cassation has been more willing to admit the applicability of treaties than the Conseil d'Etat. Thus the latter has held in a number of opinions that a person cannot demand the interpretation or application of treaties in that court.108

In England the usual rule has been to deny the applicability of treaty provisions as a rule of decision except in prize courts,109 although a recent decision of the Court of Appeal 110 in reference to the right of an alien enemy to sue on the strength of the Hague Convention relating to land warfare 111 seems to throw some doubt on this contention. The court did not apply the provision in question, but refused to do so,

107 Cour de Cassation, June 24, 1839, Dalloz, Juris. Gen., Rept., t. 42, s. v. Traité Int. No. 154. See also supra, note 29 et seq. In trying persons extradited from abroad, the Cour de Cassation has applied treaty provisions in upholding the view of the United States Supreme Court in United States v. Rauscher, 119 U. S. 407, Scott, 274 (1886), that punishment can only be for the offense for which extradition has been given. Dalloz, 1874, 1:502. For cases in which the Cour de Cassation has refused to apply treaties see decision July 4, 1867, Dalloz, 1867, 1:281, in which it was held that extradition treaties were acts of government which were not within the competence of courts to explain and interpret. In a much criticized decision of Dec. 22, 1896 (La Construction, Ltd.) the Cour de Cassation virtually ignored a provision in the treaty with England of Apr. 30, 1862, requiring that "all companies * * stituted and authorized in conformity with the laws in force in either of the two countries" should exercise all legal rights in the other. The court held that the nationality of a company was to be determined by the place of its principal establishment, and hence the company in question, with its principal office in Paris, although established by English law, was not entitled to the treaty privilege. Barclay, Companies in France, pp. 20, 95.

108 Arrêt du Conseil d'Etat, 3:310, 389, 403, 457, 579; 4:122, 653.

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110 In re Merten's Patents, 112 L. T. 313 (1915); Picciotto, op. cit., p. 72.

111 Hague Conventions, 1907, IV, Annex, Art. 23 (h).

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not because the treaty was inapplicable, but because it interpreted the provision as applying only to actions brought in territory under military occupation.

Analogous to the application of treaties as a rule of decision, is the application of the regulations and decisions of arbitral courts and other international bodies. In the United States it has been held that such decisions furnish an immediate foundation for private rights,112 although, as in the case of treaties, such rights may be destroyed by act of Congress.113 A number of treaties relating to international arbitration have specifically provided that rights founded on such arbitral decisions shall be given the same facilities of execution within the state as would be given to the decision of a local court.114 The decisions of the mixed international court in Egypt,115 and the central commission of the Rhine 116 must also according to treaties, be applied by local courts, whenever necessary. Treaties have sometimes even demanded the application and execution of foreign judgments in local courts. Thus the Rhine navigation act 117 provides for the execution of the judgments of courts of the riparian states in other such states, and the Montevideo convention of 1889 118 guarantees the signatories a right of appealing to the judicial authorities of any other signatory to aid in the application of a judgment. So also the Berne Railroad Freight Con

112 La Ninfa, 75 Fed. Rep. 513. The claim of one Gibbs against New Granada was arbitrated under a treaty of Nov. 10, 1857, and recognized as good. The United States before paying brought it under the new treaty with Colombia of Nov. 10, 1864, whereupon Gibbs protested, asserting that his claim was res adjudicata and must be paid by the United States Government. This assertion was upheld by Attorney General Harmon, 13 Op. 19. In the L'Abra claims where Congress had authorized a resubmission of the claims, the claimants' right was held debarred. See infra, note 113.

113 Frelinghuysen v. Key, 110 U. S. 363; L'Abra Silver Mining Co. v. U. S., 175 U. S. 423; J. W. Foster, The Practice of Diplomacy, New York, 1906, p. 370.

114 Article 7 of treaties of Chile with France, Nov. 2, 1882, with Italy, Dec. 7, 1882, with Great Britain, Jan. 4, 1883, with the United States, Aug. 7, 1892, Martens, N. R. G. ii, 9:704, 10:638, 9:445, 22:339.

115 Mixed Court of Egypt, Reglement d'Org. Jud., tit. 1, Art. 18, Kaufmann, op. cit., p. 123.

116 Kaufmann, op. cit., p. 123.

117 Rhine Navigation Act. Oct. 17, 1868, Art. 40, Martens, N. R. G. ii, 4:599. 118 Montevideo Convention Over International Right of Recourse, June 11, 1889, tit. 3, Art. 5, Martens, N. R. G. ii, 18:415.

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