Letters to "The Times" upon War and Neutrality (1881-1920)Holland, Thomas Erskine
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Letters to "The Times" upon War and Neutrality (1881-1920)
Holland, Thomas Erskine
Neutrality; War (International law)
It would seem that in each of these cases the adoption of the Report,
and even a suggestion or two for a change in its phraseology, amounted
to nothing more than an expression of opinion on the part of the
Delegates to the Conference that the Report contained explanations which
had satisfied themselves, and might satisfy their Governments, that the
Convention which they were about to forward to those Governments might
safely be accepted.
So far as Governments are concerned, the adoption of a Report by their
Delegates is _res inter alios acta_. An "authentic interpretation" of a
contract can be given only by the parties to it, who, in the case of a
treaty, are the States concerned. If these States desire to give to the
report of a drafting committee the force of an authentic interpretation
of their contract, they can surely do so only by something amounting to
a supplementary convention. Writers upon international law naturally
throw but little light upon questions to which the somewhat novel
practice of argumentative drafting Reports has given rise; but I may
cite Professor Ullmann, of Vienna, as saying:--
"Eine authentische Interpretation kann nur die durch
Kontrahenten selbst, in einem gemeinschaftlichen, ihren
Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder
Erlauterungsvertrage), erfolgen" (Volkerrecht, p. 282);
and Professor Fiore, of Naples, to the effect that what is called
"authentic interpretation" is not
"interpretazione propriamente detta, ma una dichiarazione di
quello che fu gia concordato, o un nuovo trattato" (Diritto
Internazionale, ss. 1, 118);
and that
"il trattato non può essere interpretato che dalle stesse
Parti (_i.e._ Stati) contrahenti; e per la validità dell'
atto è indispensabile che la relativa convenzione di
interpretazione abbia gli stessi requisiti ... di ogni altra
convenzione tra Stato e Stato" (Il Dir. Int. Codif., § 816).
I would submit that such a Report as that which accompanies the
Declaration of London has no claim to the sort of interpretative
authority which has been attributed to it; nor is it desirable that the
requisite steps should be taken for giving it that authority. It would
be calamitous should a practice be introduced of attempting to cure the
imperfect expression of a treaty by tacking on to it an equally
authoritative reasoned commentary, likely, as in the present case, to be
enormously longer than the test to which it relates.
It is a wholly different question whether Governments or Courts would be
inclined to take notice of such a Report, among other facts antecedent
to a Convention, or Declaration, which they might be called upon to
construe. A British Court would not, I conceive, be so inclined. On the
probable inclinations of Continental Courts, and of an International
Prize Court, should one be instituted, further expert information would
seem to be called for.
Public-domain text, read in full here on John Shaqi.
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