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By the treaty of Bardo, May 2, 1881, France assumed a protectorate over Tunis. It is evident that the assumption of this protectorate did not without further act terminate the treaty relations between the United States and Tunis. In order to provide for these relations certain articles were agreed upon by the United States and France on March 15, 1904:
The President of the United States of America and the Presi. dent of the French Republic, acting in his own name as well as in that of His Highness the Bey of Tunis, desiring to determine the relations between the United States and France in Tunis and desiring to define the treaty situation of the United States in the Regency
The Government of the United States declares that it renounces the right of invoking in Tunis the stipulations of the treaties made between the United States and the Bey of Tunis in August, 1797, and in February, 1824, and that it will refrain from claiming for its consuls and citizens in Tunis other rights and privileges than those which belong to them in virtue of international law or which belong to them in France by reason of treaties in existence between the United States and France. (Ibid., vol. 1, p. 544.)
Decisions in regard to treaties.-In 1874, In re Hermann Thomas (12 Blatchford, Circuit Court Reports, p. 370), it was claimed that the extradition convention between the United States and Bavaria “ was abrogated by the absorption of Bavaria into the German Empire.” The decision of the court states that
An examination of the provisions of the constitution of the German Empire does not disclose anything which indicates that then existing treaties between the several States composing the confederation called the German Empire and foreign countries were annulled or to be considered as abrogated. Indeed, it is difficult to see how such a treaty as that between Bavaria and the United States can be abrogated by the action of Bavaria alone, without the consent of the United States. Where a treaty is violated by one of the contracting parties, it rests alone with the injured party to pronounce it broken, the treaty being, in such case, not absolutely void, but voidable at the election of the injured party, who may waive or remit the infraction committed, or may demand a just satisfaction, the treaty remaining obligatory if he chooses not to come to rupture. (Federal Cases, No. 13887.)
Supreme Court on Treaties.
45 In the case of Terlinden v. Ames, decided in February, 1902, Mr. Chief Justice Fuller said:
Treaties are of different kinds and terminable in different ways. The fifth article of this treaty provided in substance that it should continue in force until 1858 and thereafter until the end of a 12 months' notice by one of the parties of the intention to terminate it. No such notice has ever been given, and extradition has been frequently awarded under it during the entire intervening time.
Undoubtedly other treaties may be terminated by the absorption of powers into other nationalities and the loss of separate existence, as in the case of Hanover and Nassau, which became by conquest incorporated into the Kingdom of Prussia in 1866. Cessation of independent existence rendered the execution of treaties impossible. But where sovereignty in that respect is not extinguished, and the power to execute remains unimpaired, outstanding treaties can not be regarded as avoided because of impossibility of performance. (184 U. S. Supreme Court Reports, p. 270.)
This decision further says of the constitution of the German Empire:
Article 11 read : “ The King of Prussia shall be the president of the confederation and shall have the title of German Emperor. The Emperor shall represent the Empire among nations, declare war, and conclude peace in the name of the same; enter into alliances and other conventions with foreign countries; accredit ambassadors, and receive them.
So far as treaties with foreign countries refer to matters which, according to Article IV, are to be regulated by the legislature of the Empire, the consent of the Federal Councii shall be required for their ratification, and the approval of the Diet shall be necessary to render them valid.”
It is contended that the words in the preamble translated eternal alliance” should read “an eternal union.” but this is not material, for, admitting that the constitution created a composite State instead of a system of confederated States, and even that it was called a confederated Empire rather to save the amour propre of some of its component parts than otherwise, it does not necessarily follow that the Kingdom of Prussia lost its identity as such, or that treaties theretofore entered into by it could not be performed either in the name of its King or that of the Emperor. We do not find in this constitution any provision which in itself operated to abrogate existing treaties or to affect the status of the Kingdom of Prussia in that regard. Nor is there anything in the record to indicate that outstanding treaty obliga
tions have been disregarded since its adoption. So far from that being so, those obligations have been faithfully observed. (Ibid.)
Opinion of Attorney General.-In case of deserters from a public vessel of the North German Confederation in 1868, the Attorney General of the United States gave an opinion that the provisions of the treaty with Prussia of May 1, 1828, relating to such matters would be operative. Mr. Evarts, the Attorney General, said:
In regard to naval vessels of the North German Union, I am clearly of opinion that they are ships of war of Prussia within the meaning of the treaty of 1828.
He further says: The relations of the States of North Germany to one another and to the United States have been so considerably modified by the confederation of 1867 that many perplexing questions of reciprocal rights and obligations are likely to arise under those various treaties, and those questions it may be deemed the part of good statesmanship to avoid by new treaties adapted to the present condition of the North German States. (12 Opinions Attorneys General, p. 463.)
Opinion of J. C. B. Davis.—Mr. Davis in his notes on United States treaties says:
The establishment of the German Empire in 1871, and the complex relations of its component parts to each other and to the Empire, necessarily give rise to questions as to the treaties entered into with the North German Confederation and with many of the States composing the Empire. It can not be said that any fixed rules have been established.
Where a State has lost its separate existence, as in the case of Hanover and Nassau, no question can arise.
Where no new treaty has been negotiated with the Empire, the treaties with various States which have preserved a separate existence have been resorted to. (Treaties and Conventions between the United States and Other Powers, 1776-1887, p. 1234.)
Rule of the Declaration of London, 1909.-As a result of the deliberations of the International Naval Conference at London in 1908 and with the approval of Great Britain, hitherto unfavorable to the doctrine of convoy, the following rule was adopted :
Art. 61. Neutral vessels under the national convoy are exempt from search. The commander of a convoy gives, in writing, at the request of the commander of a belligerent shíp of war, all the Relation of Treaty to Naval Officer.
information as to the character of the vessels and their cargoes which could be obtained by visit and search. (Naval War College, International Law Topics, 1909, p. 139.)
This article, like most treaty stipulations, applies to convoy of neutral ships by a war vessel of their own nationality. It might be very difficult for a commander of a ship of war to furnish the required information in regard to neutral vessels of another nationality, vessels over which he would have no authority.
Relation of treaty provisions to naval officer.--As the naval officer is frequently brought into contact with the persons, property, authorities, and laws of foreign States, it is necessary that, so far as possible, his duties be plain. His conduct, if he is not to involve his State in difficulties with foreign States, must have respect to the treaty obligations between the States. This is evident in the " Instructions to blockading vessels and cruisers," General Order No. 92, issued by the United States on June 20, 1898:
Vessels of the United States, while engaged in blockading and cruising service, will be governed by the rules of international law as laid down in the decisions of the courts and in the treaties and manuals furnished by the Navy Department to ships' libraries and by the provisions of the treaties between the United States and other powers.
Since the naval officer is bound by the treaties in force between the United States and other States, it is essential that where these treaties are doubtful, or where they are inconsistent with the understood policy of the United States, every effort should be made to inform the naval officer of such special provisions of treaties.
Of the treaties of the United States those with about 20 powers contained provisions in regard to convoy and others contained provisions in regard to protection. Some of these treaties have been terminated, but many remain in force, as Bolivia, 1858, article 23; Brazil, 1828, article 22; Colombia, 1846, article 23; Italy, 1871, article 19.
Discussion of treaty provision with Prussia.-Article XXII of the treaty between the United States and Prussia of July 11, 1799, as stated, binds the two States when they “shall have a common enemy or shall both be neutral.”
In either case vessels of war of each shall upon all occasions take under their protection the vessels of the other going the same course, and shall defend such vessels as long as they hold the same course against all force and violence in the same manner as they ought to protect and defend vessels belonging to the party of which they are.
While it may not be necessary for a ship of war engaged in convoying certain merchant vessels of her own nationality to receive on the high sea other vessels of her own nationality to the convoy if they request such protection, yet there would seem to be a strong obligation to do this if the vessels offered the same evidence of neutral character as afforded by those, already under convoy. The article of the treaty with Prussia is, however, of such form as to leave to the naval officer little discretion, as it does not specify convoy, but provides for protection of vessels going on the same course, apparently providing for falling in with such vessels at sea. The provision is also made very comprehensive by the insertion of the words “ upon all occasions.” The only limitations upon the agreement to grant this protection are that the parties “ shall have a common enemy or shall both be neutral,” the vessels shall be “ going the same general course," so long as the vessels "hold the same course," and be extended “in the same manner to the party's own vessels. In other words, this agreement binds each party to give to the vessels of the other when they have a common enemy or are both neutral the same degree of protection.
United States Navy Regulations.—The degree of this protection is indicated in the United States Navy Regulations for 1909, which provide as to the commander in chief:
ART. 333. He shall afford protection and convoy, so far as it is within his power, to merchant vessels of the United States and to those of allies.
ART. 334. During a war between civilized nations with which the United States is at peace he and all his command shall