53 encyclopedia of public international law 7 history of international law foundations and principles of international law sources of international l

ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 7 HISTORY OF INTERNATIONAL LAW' FOUNDATIONS AND PRINCIPLES OF INTERNATIONAL LAW· SOURCES OF INTERNATIONAL LAW· LAW OF TREATIES... SCHERMERS HELMU

ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW

7 HISTORY OF INTERNATIONAL LAW' FOUNDATIONS AND PRINCIPLES OF INTERNATIONAL LAW· SOURCES OF INTERNATIONAL LAW· LAW OF TREATIES

EDITORIAL COMMITTEE Rudolf Dolzer, Dr iur., S.J.D (Harvard) Robert E Hollweg, J.D (Univ of Michigan) Jonathan S Ignarski, M.A (Cantab.), Barrister Peter Macalister-Smith, B.A (Kent), Ph.D (Birmingham) Ann Rustemeyer, M.A (Oxon.), Dip.Lib (Univ of N.S.W.)

Anne M Trebilcock, J.D (Berkeley) Alfred-Maurice de Zayas, J.D (Harvard), Dr phil (Univ of Gottingen)

EDITORIAL ASSISTANCE Robert C Lane, B.A., M.A (Carleton) Charles J Turpin, M.A (Cantab.), Solicitor

The articles in this Encyclopedia should be cited (until publication of the final edition) according

to the following example:

H.-J Schlochauer, Arbitration, in: R Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 1 (1981), p 13

ENCYCLOPEDIA

OF PUBLIC INTERNATIONAL LAW

PUBLISHED UNDER THE AUSPICES OF THE MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW

UNDER THE DIRECTION OF RUDOLF BERNHARDT

ADVISORY BOARD RUDOLF L BINDSCHEDLER THOMAS BUERGENTHAL KARL DOEHRING JOCHEN ABR FROWEIN GUNTHER JAENICKE· HERBERT MIEHSLER

KARL JOSEF PARTSCH PIERRE PESCATORE· HENRY G SCHERMERS

HELMUT STREBEL

7 HISTORY OF INTERNATIONAL LAW· FOUNDATIONS AND PRINCIPLES OF INTERNATIONAL LAW· SOURCES OF

INTERNATIONAL LAW· LAW OF TREATIES

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1984 NORTH-HOLLAND AMSTERDAM· NEW YORK· OXFORD

© ELSEVIER SCIENCE PUBLISHERS B.V -1984

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INTRODUCTORY NOTE

The seventh instalment of the Encyclopedia of Public International Law contains 102 articles devoted to the history of international law, and to the foundations, principles and sources of international law As in previous instalments, articles which relate to more than one subject area are included in the most appropriate volume Thus, the entry entitled War, Laws of, History can

be found in Instalment 4 which deals with the use of force, and the history of the law of the sea will be treated in Instalment 11 Similarly, the entry on the League of Nations is found in Instalment 5, where it belongs with the other articles on international organizations in general and universal international organizations

The division of the articles included here under the title History of the Law of Nations presented various and unique problems, to which the solution adopted is apparent from the list

of entries on p ix, the table of contents appearing on p 126 and the subdivisions printed at the head of each article Several specialized historical subjects have their own separate entries in this instalment, for example Aix-Ia-Chapelle, Congress of (1818) and Westphalia, Peace of (1648) In addition, of course, many articles throughout the Encyclopedia have a section dealing with historical developments in the particular area concerned

To facilitate the use of the Encyclopedia, two kinds of cross-references are used marked cross-references in the articles themselves refer to other entries, and are generally inserted at the first relevant point in an article (e.g The case was submitted to the

Arrow International Court of Justice) For other topics for which a separate entry might be expected but which are discussed elsewhere or under a heading which does not immediately suggest itself, the title of the topic appears in the alphabetical sequence of articles with a cross-reference to the

article where it is discussed (e.g INQUIRY see Fact-Finding and Inquiry)

At the end of each instalment there is an updated list of articles for the entire Encyclopedia Articles which have already appeared have a number in brackets identifying the instalment in which they may be found

The manuscripts for this instalment were finalized in early 1984

CONTENTS

Articles in Alphabetical Order

LIST OF ENTRIES

Abuse of Rights (Alexandre C Kiss)

Acquiescence (Jorg Paul Muller and Thomas Cottier)

Aix-Ia-Chapelle, Congress of (1818) (Stephan Verosta)

Algeciras Conference (1906) (Horst Blomeyer-Bartenstein)

American Civil War (Peter Malanczuk)

Balance of Power (Alfred Vagts and Detlev Vagts)

Balkan Wars (1912/1913) (Fritz Munch)

Berlin Congress (1878) (Fritz Munch)

Berlin West Africa Conference (1884/1885) (Fritz Munch)

Clausula rebus sic stantibus (Georg Schwarzenberger)

Codes of Conduct (Ernst-Ulrich Petersmann)

Codification of International Law (Shabtai Rosenne)

Comity (Peter Macalister-Smith)

Concordats (Heribert Franz Kock)

Conferences of Ambassadors (Horst Blomeyer- Bartenstein)

Consensus (Erik Suy)

Contracts between International Organizations and Private Law Persons (Georges

Customary International Law (Rudolf Bernhardt)

Declaration (Carl-August Fleischhauer)

Depositary (Jutta Stoll)

Effectiveness (Karl Doehring)

Equity in International Law (M.V Janis)

Estoppel (Jorg Paul Muller and Thomas Cottier)

Executive Agreements (Luzius Wildhaber)

Fashoda Incident (Karl Josef Partsch)

Frankfurt Peace Treaty (1871) (Theodor Schieder)

General Principles of Law (Hermann Mosler)

Gentlemen's Agreement (Wilfried Fiedler)

Good Faith (Anthony D' Amato)

x LIST OF ENTRIES

Guarantee (George Ress)

Guarantee Treaties (Georg Ress)

Historic Rights (Yehuda Z Blum)

History of the Law of Nations

109

117

120

Basic Questions and Principles (Wolfgang Preiser)

Ancient Times to World War I

International Law, Doctrine and Schools of Thought in the Twentieth Century

(Henry J Steiner) 297 International Legal Community (Hermann Mosler) 309

LIST OF ENTRIES

Non-Intervention, Principle of (Meinhard Schroder)

Nullity in International Law (lochen Abr Frowein)

Pacta sunt servanda (Manfred Lachs)

Pactum de contrahendo, pactum de negotiando (Ulrich Beyerlin)

Paris Peace Treaty (1856) (Theodor Schieder)

Peaceful Change (Wilhelm G Grewe)

Positivism (Roberto Ago)

Preamble (Hans-Dietrich Treviranus)

Proces-verbal (Hans-Dietrich Treviranus)

Proportionality (lost Delbriick)

Reciprocity (Bruno Simma)

Regional International Law (Dietrich Schindler)

Reinsurance Treaty between Germany and Russia (1887) (Hans-liirgen Schlochaller)

Sei Fujii v California (Anne M Trebilcock)

Self-Executing Treaty Provisions (Albert Bleckmann)

Socialist Conceptions of International Law (Theodor Schweisfurth)

Sources of International Law (Riccardo Monaco)

Spanish Civil War (Alfred-Maurice de Zayas)

Status quo (Wilhelm G Grewe)

Subjects of International Law (Hermann Mosler)

Treaties (Rudolf Bernhardt)

Treaties, Conclusion and Entry into Force (Shabtai Rosenne)

Treaties, Conflicts between (Wolfram Karl)

Treaties, Effect of Territorial Changes (Eckart Klein)

Treaties, Effect on Third States (Hans Ballreich)

Treaties, Multilateral (Luzius Wildhaber)

Treaties of Friendship, Commerce and Navigation (Dieter Blumenwitz)

Treaties, Registration and Publication (Wilhelm Karl Geck)

Treaties, Reservations (Rudolf L Bindschedler)

Treaties, Revision (Wilhelm G Grewe)

Treaties, Secret (Karl Zemanek)

Treaties, Termination (Michael Akehurst)

Treaties, Territorial Application (Michael Akehurst)

xii LIST OF ENTRIES

Unilateral Acts in International Law (Wilfried Fiedler)

Vienna Congress (1815) (Fritz Munch)

Vienna Convention on the Law of Treaties (Shabtai Rosenne)

Waiver (Anne M Trebilcock)

Westphalia, Peace of (1648) (Alfred-Maurice de Zayas)

Wilson's Fourteen Points (Ann Rustemeyer)

Zollverein (German Customs Union) (Werner Meng)

Archiv des Volkerrechts British International Law Cases (c Parry, ed.) British Year Book of International Law

Cahiers de Droit Europeen Canadian Yearbook of International Law Court of Justice of the European Communities Journal du Droit International

Common Market Law Reports Common Market Law Review Columbia Journal of Transnational Law Council for Mutual Economic Aid Consolidated Treaty Series (c Parry, ed.) Department of State Bulletin

Diritto Internazionale European Community or European Communities European Convention on Human Rights

Economic and Social Council of the United Nations Reports of the Court of Justice of the European Communities (Euro- pean Court Reports)

European Coal and Steel Community European Economic Community European Free Trade Association European Space Agency

European Treaty Series Europa-Recht

European Atomic Energy Community European Organization for the Safety of Air Navigation Food and Agriculture Organization of the United Nations Fontes luris Gentium

General Assembly Official Records General Agreement on Tariffs and Trade German Yearbook of International Law Harvard International Law Journal International Atomic Energy Agency International Air Transport Association Intemational Bank for Reconstruction and Development International Civil Aviation Organization

International Court of Justice International and Comparative Law Quarterly International Committee of the Red Cross

LIST OF ABBREVIA nONS

International Centre for Settlement of Investment Disputes International Development Association

Institut de Droit International International Finance Corporation International Law Association International Law Commission International Legal Materials International Labour Organisation International Law Reports

Inter-Governmental Maritime Consultative Organization International Monetary Fund

International Maritime Organization Indian Journal of International Law International Lawyer

International Relations Italian Yearbook of International Law Jahrbuch flir Internationales Recht League of Nations Treaty Series League of Nations

Martens Recueil de Traites Martens Recueil de Traites, 2me ed

Martens Nouveau Recueil de Traites Martens Nouveau Supplement au Recueil de Traites Martens Nouveau Recueil General de Traites

Martens Nouveau Recueil General de Traites, 2me Serie Martens Nouveau Recueil General de Traites, 3me Serie North Atlantic Treaty Organization

Nederlands Tijdschrift voor Internationaal Recht Netherlands International Law Review

Nordisk Tidsskrift for International Ret Organization of American States

Organization of African Unity Organisation for Economic Co-operation and Development Permanent Court of International Justice

Polish Yearbook of International Law Proceedings of the American Society of International Law Academie de Droit International, Recueil des Cours Resolution

Revue BeIge de Droit International Revue Egyptienne de Droit International Revue Hellenique de Droit International Revue Generale de Droit International Public Reports of International Arbitral Awards Rivista di Diritto Internazionale

South African Yearbook of International Law Schweizerisches Jahrbuch filr internationales Recht Security Council Official Records

South-East Asia Treaty Organization Strupp-Schlochauer, Worterbuch des Volkerrechts (2nd ed., 1960/62)

United Nations Document

United Nations General Assembly

United Nations Conference on Trade and Development United Nations Environment Programme

United Nations Educational, Scientific and Cultural Organization United Nations Industrial Development Organization

United Nations Institute for Training and Research United Nations Treaty Series

Universal Postal Union United States Treaties and Other International Agreements Western European Union

World Health Organization World Meteorological Organization Yearbook of the International Law Commission Zeitschrift fur ausHindisches offentliches Recht und Volkerrecht

xv

ABUSE OF RIGHTS

1 Notion (a) General concept

In international law, abuse of rights refers to a

_ State exercising a right either in a way which

impedes the enjoyment by other States of their

own rights or for an end different from that for

which the right was created, to the injury of

another State (see also - Internationally

Wrong-ful Acts)

The concept of abuse of rights implies the

negation of a rigid conception of international

law, and of law in general, summarized by the

maxim neminem laedit qui suo jure utitur, meaning

that nobody harms another when he exercises his

own rights Summum jura, the maximum of law,

may thus become summa injuria, a maximum of

injustice The principle of Roman law, sic utere

jure tuo ut alienum non laedas, prescribing the

exercise of individual rights in such a way that

others would suffer no injury, is therefore the

very fundament of the concept of abuse of rights

A clear violation of an existing specific obligation

cannot constitute an abuse of right, since in such a

case the State which acted had no right at all

There should thus be no confusion between abuse

of rights and situations where a State acts ultra

vires, since in the latter case it has exceeded the

limits of its rights, i.e it has no right at all

The concept also implies a distinction between

the existence of an individual right and the

exer-cise of such a right Some authors consider such a

distinction artificial In reality, the distinction

seems to be generally adopted in practice not only

in international law, but also in municipal law

systems, and in civil as well as in administrative

law The distinction is illustrated by control

exer-cised on the way individuals or authorities make

use of their rights or competences, such as

prop-erty rights or decisions of administrative organs

(b) Specific situations

A closer inquiry shows that the concept of

abuse of rights may arise in three distinct legal

situations In the first case, a State exercises its

rights in such a way that ano~her State is hindered

in the enjoyment of its own rights and, as a

consequence, suffers injury Such a situation can

1

result, for example, from the inconsiderate use of

a shared natural resource, such as an international watercourse or a migratory species or the radio-electronic spectrum Here, the States sharing the same resource suffer a reduction in their enjoy-ment of the resource to which they are entitled In reality, however, the existing rights and the legi-timate interests of the States concerned have to

be balanced in such cases It can be considered that an abuse of rights exists only when the injury suffered by the aggrieved States exceeds the benefit resulting for another State from the enjoyment of its own right

In the second case, a right is exercised tentionally for an end which is different from that for which the right has been created, with the result that injury is caused This is the concept of

in-detournement de pouvoir, well known in

ad-ministrative practice within States It has been identified in general inter-State practice, and it plays a growing role inside international organizations, since the competences conferred upon member States or the organs of the in-stitutions themselves may be exercised in a way very different from that originally intended

In the third case, the arbitrary exercise of its rights by a State, causing injury to other States but without clearly violating their rights, can also amount to an abuse of rights In contrast to the preceding situation, bad faith or an intention to cause harm are not necessary to constitute this form Broader objectives concerning the social function of the right which has been exercised are

at stake here, for example in the case of justified if not illegal measures imposed upon

un aliens, including arbitrary expulsion ( - Aliens, Expulsion and Deportation) or

- expropriation

2 Prohibition of Abuse of Rights

On the whole, it may be considered that national law prohibits the abuse of rights However, such prohibition does not seem to be unanimously accepted in general international law, while it is not contested in the law of inter-national institutions Hence the two aspects have

inter-to be examined separately

(a) General international law

As far as international law doctrine is

concer-2 ABUSE OF RIGIITS

ned, many publicists, including practically all the

earlier ones, do not even mention prohibition of

the abuse of rights The principle prohibiting

abuse of rights seems to have been formulated for

the first time at an inter-State level by the

Com-mittee of Jurists preparing the Draft Statute of

the -+ Permanent Court of International Justice

(PCIJ) in 1920 In their attempt to define the

-+ general principles of law which would form the

legal basis for the Court's decisions, that

Com-mittee referred to the prohibition of abuse of

rights as an example, together with the principle

Following this reasoning, several writers have

reviewed different municipal law systems in order

to find out whether such a prohibition could be

considered as general, i.e whether it was to be

considered as relevant to Art 38(1) of the Statute

of the PCIJ This wording (which is the same as

that of Art 38(1) (c) of the Statute of the -+

In-ternational Court of Justice) lists among the

sources of international law the "general

prin-ciples of law recognized by civilized nations"

Most of these authors came to the conclusion that

in civil law countries, whether European or not,

as well as in socialist countries, the abuse of rights

was, along with detournement de pouvoir,

pro-hibited As far as common law countries are

concerned it was submitted that, although a

decision in a given case may be based upon

principles of the law of torts, when a court looks

into the motives of an actor the legal theory

applicable is indistinguishable from that of abuse

of rights This, it was held, supports the

conten-tion that the theory is accepted in the private law

of common law countries In addition, the

exis-tence of controls over the discretionary powers of

public authorities should be taken into account,

though there are many variants on the means or

methods of such controls Some have concluded,

therefore, that since the concept of abuse of rights

is known in many countries it may be said to be a

general principle of law

However, even among writers who accept the

principle of the prohibition of the abuse of rights,

there is no agreement on the analysis of its

significance and theoretical basis This divergence

of opinion results at h~ast partly from the different

forms in which the exercise of an existing right

can cause injury to another Stal !, amounting to a

summa injuria Some distinguished authors

ques-tion the importance of the principle in national relations, or object to its lack of precision for practical use Others consider it to be lacking

inter-in value as an inter-independent rule, assertinter-ing that it consists essentially of an application of other un-contested concepts such as -+ good faith, reason-ableness, good neighbourliness or even equity

(-+ Equity in International Law)

In inter-State practice, abuse of rights has often been alleged by governments Diplomatic dis-cussions and opinions of legal advisors in various ministries of foreign affairs show that the pro-hibition of the abuse of rights has been used not only as an argument against other States, but also

to impose upon the State concerned the duty to avoid acts which would amount to a violation of this principle The most complete collection of arguments based on this principle can be found in memorials submitted to international tribunals as well as in oral statements made before such tri-bunals Abuse of rights was expressly made the basis of a claim before the ICJ in the -+ Bar-celona Traction Case (ICJ Reports (1970) p 3, at

p 17) It has also been submitted that the British claim against Belgium in the -+ Chinn Case was essentially an allegation of abuse of right (PCIJ, Series AlB, No 63, at p 70)

However, no international judicial decision or arbitral award has so far been explicitly founded

on the prohibition of abuse of rights The ciple has been mentioned in several cases as a possible basis for a condemnation for violation of international law, but without having been actu-ally used for that purpose In one of ~he -+ Ger-man Interests in Polish Upper Silesia cases, the PCIJ concluded that a misuse had not taken place (PCIJ, Series A, No.7, at pp 30 and 37 to 38) In the -+ Free Zones of Upper Savoy and Gex Case the Court stressed that a reservation had to be made regarding the case of abuses of rights, but it added that an abuse could not be presumed by the Court (PCIJ, Series AlB, No 46, at p 167)

prin-On the other hand, a series of decisions and awards can be mentioned where the court or arbitral tribunal examined the way in which a State exercised a right, the existence of which was not contested Authors refer in this regard in particular to the -+ United States Nationals in Morocco Case (ICJ Reports (1952) p 176, at p

ABUSE OF RIGHTS 3

212) in the practice of the IC] as well as to

arbitral awards in the ~ Trail Smelter

Arbitra-tion, the ~ Delagoa Bay Railway Arbitration,

the ~ El Triunfo Case and to some of the

Venezuelan arbitrations (reported in RIAA,

Vols 9 and 10; ~ Preferential Claims against

Venezuela Arbitration) Dissenting opinions of

judges at the PCIJ and at the IC] have also

frequently adverted to the principle, but some of

them expressed hesitation before applying it,

without ever rejecting outright its place in

inter-national law

The provisions of certain ~ treaties enunciate

the principle prohibiting the abuse of rights in

inter-State relations, even outside the area of

international institutions States sharing a river or

a lake have often entered into bilateral and

multilateral conventions for the purpose of

utiliz-ing to mutual advantage the natural resource

represented by such surface waters In a sense,

treaty clauses providing for the application and

implementation of the measures agreed in good

faith may be considered as involving the

pro-hibition of any abuse of the rights which those

treaties confer upon the contracting parties In

this connection, it should be noted that Art 26 of

the ~ Vienna Convention on the Law of Treaties

declares that every treaty in force must be

per-formed in good faith by the parties

However, more specific prohibitions have also

been provided for One may consider as such the

obligation not to defeat the object and purpose of

a treaty prior to its entry into force, set out in Art

18 of the Vienna Convention on the Law of

Treaties It may also be recalled that Art 2 of the

1958 Convention on the High Seas adds to the

definition of the various aspects of freedom of the

~ high seas that these freedoms, and others

which are recognized by the general principles of

international law, are to be exercised by all States

with reasonable regard to the interests of other

States The most explicit recognition of the

pro-hibition of any abuse of rights is to be found in

the Convention adopted in 1982 by the Third

United Nations Conference on the Law of the Sea

(~ Conferences on the Law of the Sea) in Art

300:

"States Parties shall fulfil in good faith the

obligations assumed under this Convention and

shall exercise the rights, jurisdictions and

•

freedoms recognized in this Convention in a manner which would not constitute an abuse of

right" (UN Doc A!CONF 62/122)

Inter-State practice and international judicial proceedings show that the main fields where abuse of rights have been alleged are the law of the sea, ~ international rivers and lakes,

~ transfrontier pollution, international trade,

~ nationality, the non-application of certain foreign legislative provisions and the treatment of aliens in general, but in particular alien property rights and expulsion

(b) International institutions

Within international institutions, competences and discretions are granted to the member States and to specified organs The abuse of rights is a danger to be avoided A general tendency is therefore found to prohibit such abuse in two of its principal forms: arbitrary use of rights and

detournement de pouvoir Here again, it may be

recalled that the general obligation to fulfil in good faith the rights and obligations resulting from membership or from institutional com-petences is the overall basis for the prohibition of the abuse of rights (see ~ United Nations Char-ter, Art 2(2))

The prohibition of abuse of rights was emphasized, as far as the rights of member States

of the ~ United Nations are concerned, in senting opinions by five judges in the Advisory Opinion on the ~ Admission of a State to Membership (IC] Reports (1947-1948) p 57, at

dis-pp 91-92 and (1950) p 1, at dis-pp 15 and 20) and in the ~ South West Africa Cases (Second Phase)

by Judge Forster (IC] Reports (1966) p 6, at pp 480-481) The 1951 Treaty instituting the

~ European Coal and Steel Community (ECSC) (Art 10) explicitly authorized the ~ Court of Justice of the European Communities (CJEC) to declare null and void abusive ~ vetos by member States in the designation of the members of the High Authority

In other institutional frameworks, prohibitions are found of certain abuses of rights which can be enjoyed by other than member States Art 86 of the Treaty instituting the ~ European Economic Community (EEC) prohibits any States' abuse of dominant position within the Common Market Art 27 of the ~ European Convention on

4 ABUSE OF RIGHTS

Human Rights states that the ~ European

Commission of Human Rights must consider

in-admissible any petition submitted by individuals

or groups of individuals which it considers an

abuse of the right of petition

The principle prohibiting the abuse of rights

within international organizations is quite

frequently applied in order to control the exercise

of powers by international organs Art 33 of the

Treaty instituting the ECSC provides for

juris-diction of the CJEC over appeals by a member

State or by the Council for the annulment of

decisions and recommendations of the High

Authority, on the grounds of abuse of power The

same principle appears in Art 173 of the EEC

Treaty and in Art 146 of the Treaty establishing

the ~ European Atomic Energy Community

In reality, most cases where international

organs are found to have abused their rights

concern the exercise of their competences and

discretions in relation to members of their staff In

a number of decisions of the ~ United Nations

Administrative Tribunal, of the ~ International

Labour Organisation Administrative Tribunal and

of the CJEC, it has been held that the prejudice

suffered by the plaintiffs resulted from a

detour-nement de pouvoir

3 Implementation of the Prohibition

It seems that the fact of injury resulting from an

abuse of rights is a fundamental element in the

implementation of that principle The arbitrators

in the Trail Smelter arbitration stressed that the

abuse should be "of serious consequence" and the

injury "established by clear and convincing

evi-dence" (RIAA, Vol 3, p 1907, at p 1965) When

an injury is alleged, an ~nternational body or

States, through diplomatic inquiry, may examine

the circumstances in which the relevant rights

have been exercised Such a procedure of

verification appears in several cases submitted to

the ICJ, including the ~ Nottebohm Case (ICJ

Reports (1955) p 4, at pp 21-24) and the United

States Nationals in Morocco Case (ICJ Reports

(1952) p 176, at p 212)

Abuse of rights provides a ground for

inter-national responsibility (~Responsibility of

States: General Principles; ~ International

Organizations, Responsibility) There can be no

defence that a State or an international

organiza-tion which has exceeded its powers could not have committed an illegal act, having simply exercised its proper rights, once it is admitted that a general principle exists in international law prohibiting abuse of rights, a principle which is thus superior

to specific rules recognizing individual rights Of course, the second condition of international res-ponsibility, namely, conduct attributable to the State concerned, has also to be fulfilled It does not seem, however, that intention to harm other States is required: an injurious or arbitrary use of rights, competences or discretions can be con-sidered sufficient in this regard

The problem of the proof of the existence of an abuse of rights is a fundamental one In both cases where the PCB referred to the possibility of

an abuse of rights, it was stressed that such an abuse cannot be presumed by the Court (German Inter-ests Case, PCB, Series A, No.7, at p 30 and Free Zones Case, PCB, Series A/B, No 46, at p 167) In the German Interests Case, the Court added that the burden of proof rested with the party alleging an abuse of rights When arbitrary use of powers or a detournement de pouvoir is alleged, proof should also be brought that the right has been used in disregard of the purpose for which it was originally intended

4 Conclusion

The idea that a subject of rights and petences (~ Subjects of International Law) can misuse them seems to be inherent to legal think-ing and to have roots in all legal systems The idea leads to the establishment of controls on the use

com-of recognized rights However, the prohibition com-of abuse of rights in international law is problematic because of differences in the content of the concept itself: it may include, indeed, a conflict of sovereign rights, an arbitrary exercise of com-petences or discretions or a detournement de pou- voir Nevertheless these last two forms seem to play a growing role within the framework of the law of international institutions

The evolutive role of the concept of prohibition

of abuse of rights has been stressed by several authors Conflicts where an abuse of rights is alleged or is likely to exist can lead the States involved to adopt specific rules which are de-signed to solve the problem for the future At a general level, the concern to avoid such conflicts

ACQUIESCENCE 5

can result in the long term in the emergence of

new customary rules, for example, in the case of

the development of international law concerning

transfrontier pollution (see also ~ Customary

International Law)

N POLITIS, Le probleme des limitations de la

sou-verainete et la theorie de l'abus des droits dans les

rapports internationaux, RdC, Vol 6 (1925 I) 1-121

A.c KISS L'abus de droit en droit international (1953)

F MONCONDUIT, L'abus du droit de recours individuel

devant la Commission europeenne des droits de

l'homme, AFDI, Vol 17 (1971) 347-365

B.O ILUYOMADE, The Scope and Content of a Complaint

of Abuse of Right in International Law, Harvard IU,

Vol 16 (1975) 47-92

V PAUL, The Abuse of Rights and Bona Fides in

Inter-national Law, Osterreichische Zeitschrift fUr

offent-liches Recht und Volkerrecht, Vol 28 (1977)

107-130

ALEXANDRE C KISS

ACQUIESCENCE

1 Notion

The international legal system, lacking

cen-tralized law-making institutions, permanently

develops, confirms and modifies general rules and

legal relations among its suhjects in a process of

continuous interaction of demand and response

(McDougal) Such interaction takes place in the

process of treaty-making But it also occurs in a

great variety of unilateral or quasi-contractual

courses of conduct which are either formal, such

as ~ recognition and ~ protest, or informal, such

as acquiescence (see also ~ Unilateral Acts in

International Law) The doctrine of acquiescence

represents the proposition of binding effect

resul-ting from passivity and inaction with respect to

foreign claims which, according to the general

practice of States (see ~ Customary International

Law), usually call for protest in order to assert,

preserve or safeguard rights (see the separate

opinion of Judge Alfaro in the ~ Temple of

Preah Vihear Case) The doctrine finds expression

in the adage Qui tacet consentire videtur si loqui

Case) The far-reaching effect of creating legal

obligation by silence and inaction is an essential

element in the promotion of stability in

inter-national relations, and is intended to prevent

States from playing "fast and loose" with tions affecting other States (Lauterpacht)

situa-The doctrine of acquiescence, eo nomine, is a concept well known in Anglo-American law

mean-ing, although limited in scope to procedural law

In contemporary international law, acquiescence has consistently been applied, either expressly or impliedly, as a principle of substantive law (see

~ Rann of Kutch Arbitration (Indo-Pakistan Western Boundary) and grounded in the general concepts or - good faith and ~ equity It has played an important role in the process of shaping customary international law (see ~ Lotus The:

~ Tinoco Concessions Arbitration; ~ Haya de

la Torre Cases)

2 Case Law

Silence and toleration in face of foreign claims

or expectations do not always produce legally binding effects Acquiescence is a type of qualified inaction (qualifiziertes Stillsch weigen) The main problem in the day-to-day operation of the doc-trine is to find appropriate and reasonably defined prerequisites which are necessary to establish a binding effect of silence Although not relying expressly upon the doctrine the ~ Fisheries Case (U.K v Norway) provides some guidance as to the point at which silence and toleration become

"law-making" acquiescence - or in other words the point at which international law requires protest or some other form of action in order to preserve legal positions The Court in essence stressed the following prerequisites: notoriety of claims challenging a legal situation or asserting alleged rights, or a State must at least be expected

in good faith to have had knowledge of such claims; a general toleration of the claims by the international community and prolonged absten-tion from reaction, especially by States partic-ularly interested, concerned and affected These elements were central to the issue of whether the Norwegian base-line was consistent with inter-national law due to acquiescence

Although acquiescence applies to all kinds of claims and toleration (see e.g ~ Arbitral Award

of 1906 Case (Honduras v Nicaragua), concerning the legality of the award) the law of acquiescence has arisen mainly in the context of territorial disputes concerning bilateral relations or local

6 ACQUIESCENCE

custom (see -+ Right of Passage over Indian

Ter-ritory Case) In the -+ Grisbadarna Case, special

weight was given to the fact that recent Swedish

installations for the security of navigation in the

disputed area had given rise to no protests from

Norway This case reveals that a short lapse of

time may be compensated by the intensity of the

claims and assertions on the one side and by

obvious toleration on the other ("instant

acquies-cence") In the Temple of Preah Vihear Case,

acquiescence was established and binding effect

was ascribed to active conduct, namely by

accept-ing and usaccept-ing -+ maps defining the boundary

without submitting any reservation The case also

raises the issue of the extent to which

acquies-cence may even modify relations settled by

agreement if subsequent deviating conduct and

claims remain unchallenged by the other party

(see -+ France-United States Air Transport

Arbitration (1963» Interesting contributions to

the case law of acquiescence can also be found in

interstate disputes of -+ federal States (see e.g

California v Nevada, 447 U.S 125, 131 (1980),

Ohio v Kentucky, 410 U.S 641 (1973), and in

Swiss Law, Wallis c Ticino, Arrets du Tribunal

federal suisse, 106 1b, 154, 166 (1980»

3 Acquiescence, Estoppel and Prescription

An unsettled problem of acquiescence is its

relation to the doctrines of -+ estoppel and

-+ prescription (see also -+ Waiver)

Some authors consider the concepts of

acquiescence and estoppel to have identical

requirements and identical legal effects Their

similarity is supported by terms such as estoppel

by silence and estoppel by inaction, as used in

Anglo-American law It is due primarily to their

immediate foundation in the common

denomina-tors of good faith and equity Silence and

tolera-tion, if clear and unambiguous, may well be

con-strued as representation within the meaning of

estoppel In good faith such conduct may induce

reliance and expectations which deserve

protec-tion of the law The problem, however, is that

prevailing restrictive concepts of estoppel- in

contrast to any doctrine of acquiescence - require

a showing of prejudice or detriment to the party

invoking the doctrine The unclear relationship of

estoppel and acquiescence became obvious in the

Arbitral Award of 1906 Case Referring to broad

concepts of estoppel, Honduras attempted to preclude Nicaragua's challenge to the legality of the arbitral award There was no evidence of specific detriment to Honduras in the event of nullification of the award The -+ International Court of Justice, without discussing estoppel in its opinion (but see separate opinion of Judge Spen-der), relied upon acquiescence to bar the Nicaraguan claim The decision supports the view that estoppel can only be applied if its rather strict requirements are met In other cases, a party may still be foreclosed for reasons of acquiescence, provided that its prerequisites, still in the process

of being evolved, are fulfilled For acquiescence, the time factor and the gradual accumulation of indications symbolizing the seriousness of the claim may be the very justification for the legal protection of reliance and confidence, and may replace the requirements of detriment and of clear and unequivocal representation, which are typical for estoppel Unlike the law of estoppel, binding effects of silence and toleration may be considered to be founded in quasi-contractual links gradually and informally developing between interacting States

With regard to the relationship of acquiescence

to prescription, traditional concepts of acquisitive prescription generally require a "continuous and peaceful display of state authority" (-+ Palmas Island Arbitration) Modern doctrines primarily emphasize the historical consolidation of rights and titles in the continuous process of assertion, recognition and acquiescence in such claims Acquiescence, as suggested by several authors (e.g Johnson), is the essential and typical feature

of informal acquisition of territory and renders specific notions of prescription, as drawn from domestic law, dispensable (-+ Territory, Acquisi-tion)

D.H.N JOHNSON, Acquisitive Prescription in International Law, BYIL, Vol 27 (1950) 332-354

H LAlITERPACHT, Sovereignty over Submarine Areas, BYIL, Vol 27 (1950) 39~398

D.W BOWETI, Estoppel before International Law and its Relations to Acquiescence, BYIL, Vol 33 (1957) 197-

AIX-LA-CHAPPELLE CONGRESS OF (1818) 7

M WAELBROECK L'acquiescement en droit des gens,

RivDirInt, Yol 44 (1961) 38-:53

J BENTZ Le silence comme manifestation de volonte en

droit international public, RGDIP, Vol 67 (1963)

44-91

RY JENNINGS The Acquisition of Territory in

Inter-national Law (1%3) 36-51

G VENTURINI, La portee et les elfets juridiques des

attitudes et des actes unilateraux des Etats, RdC, Vol

112 (1964 II) 367-394

lP MULLER Vertrauensschutz im Volkerrecht (1971)

35~7, 171-190

c VALLEE, Quelques observations sur l'estoppel en droit

des gens, RODIP, Vol 77 (1973) 983-989

R BERNHARDT Ungeschriebenes Volkerrecht, ZaoRV

In the Paris Treaty of Alliance and Friendship

of November 20 1815 which supplemented the

~ alliance treaties of Chaumont (March 1, 1814)

and Vienna (March 25, 1815), Great Britain,

Austria, Prussia and Russia had agreed "to renew

their Meetings at fixed periods for the purpose

of consulting upon their common interests and

for the consideration of the measures which at

each of those periods shall be considered the most

salutary for the repose and prosperity of Nations

and for the maintenance of the Peace of Europe"

(Art VI) On the basis of this provision the

Concert of Europe convened their first meeting in

Aix-Ia-Chapelle from September 27 to November

21, 1818 At the "Congress of Aix-Ia-Chapelle",

as it came to be caIled, the Concert of Europe

reached decisions on a wide range 'If subjects;

other topics were merely discussed

Changes of title made by a State or a ruler on

behalf of himself and his line would only be

recognized after common agreement of the

~ great powers The request of the Elector of

Hesse to be granted the title of king was refused

The title of "Royal Highness" was granted to the

heads of Grand-ducal houses, including the

Elec-tor of Hesse, and to their heirs

Supplementing the rules on the rank of

diplomatic representatives of March 3, 1~15

(Annex XVII to the Final Act of the ~ Vienna Congress), ministers resident were recognized as a separate category and given the rank between envoys and charges d'affaires This category of ministers resident has long fallen into disuse and does not appear in the ~ Vienna Convention on Diplomatic Relations of April 18, 1961

The powers agreed on the evacuation of troops from French territory and on a reduction of France's ~ reparations payments (Convention of

October Y iSI8 CTS Vol 69, p 283) Napoleon

was to be regarded as the prisoner of all the allies and Great Britain as the sovereign ruler of St Helena was to respect the wishes of the other powers regarding his treatment

France was to be accorded the "place that she merits in the system of Europe"; the Conference Protocol of November 15, 1818 (CTS, Vol 69 p

3n.'i), signed also hy France, used wording reminiscent of the text of the ~ Holy Alliance The Union of the four powers, "rendered m(\re strong and indissoluhle by the bonds of Christian fraternity" was to have as its object "the main-tenance of general peace, founded on a religious respect for the engagements contained in the Treaties and for the whole of the rights resulting therefrom" (~ Treaties) Further "France, asso-ciated with the other powers by the restoration of the legitimate monarchical and constitutional power, engages henceforth to concur in the main-tenance and consolidation of a system which has given peace to Europe and which can alone ensure its duration"

If the meetings provided for anew in point 4 of the Protocol should have as their object "affairs specially connected with the interests of other

State~ of Europe", they could only take place pursuant to a formal invitation to the States con-cerned and under the express reservation of their right of direct participation therein

The contents of this Protocol were municated to all the other European States in a declaration signed on the same day, although with somewhat different wording (CTS, Vol 69, p 377) It is stated, for example, that the union of the sovereigns had as its basis the resolution

com-"never to depart from the strictest observation

of the principles of the law of nations; principles which can alone effectively guarantee the in-

8 AIX-LA-CHAPELLE, CONGRESS OF (1818)

dependence of each government, and the stability

of the general association"

In a secret protocol of November 15, 1818

(CfS, Vol 69, p 369; - Treaties, Secret) Great

Britain, Austria, Prussia and Russia renewed their

alliance in case of future French - aggression; it

was agreed where the troops were to be mustered

should the - casus foederis be established; with

the consent of the King of the Netherlands, to

whose territory Belgium at that time belonged,

Belgian fortifications were to be occupied by

Bri-tish and Prussian troops, Brussds by BriBri-tish

troops

Concerning the pacification of the rebellious

Spanish colonies it was only possible to agree to

offer collective mediation (- Conciliation and

Mediation) between them and Spain; Spain

rejected the offer The - piracy of the North

African (Barbary) States was to be countered by a

plan adopted on November 7, 1818

Negotiations on measures to combat slave

trading (- Slavery) led to no positive result The

decisive right of search (- Ships, Visit and

Search) in prescribed "suspicious zones" in the

Atlantic and Indian Oceans was not accepted

until the signing in London of the

British-pro-posed Quintuple Agreement of December 20,

1841

The Congress of Aix-la-Chapelle initiated a

long series of European conferences of

States-meeting as the organ of the Concert of

Europe-which attempted consistently to maintain the

- balance of power in Europe These

con-ferences admittedly failed to prevent wars, but

they did lead to the conclusion of international

agreements on a large number of subjects and

thus contributed to the development of

The Western Powers had laid the basis for their trade relations with the Sherifian Empire in a series of bilateral treaties, France having con-cluded one as early as 1682 Various agreements were concluded during the 19th century, for example, by the United States on September 16 1836; by Great Britain on December 9, 1856; by the Netherlands in 1858; by Spain on November

20, 1861; by Belgium on January 4, 1862; and by France on August 19, 1863 These agreements granted to the Western signatories safety of commerce, freedom of religious practice for non-Muslims, the prerogatives of - consuls including their immunity, jurisdiction and the right to protect certain Moorish nationals against their own government (- Diplomatic Protection of Foreign Nationals; - Consular Jurisdiction) These treaties often contained a - most-favoured-nation clause, and their provisions exemplify the extent of the - concessions wrought from the Sultans over the course of time by the Western Powers

The Madrid Convention of July 3, 1880 (CTS, Vol 156, p 487) consolidated the rights of the Western Powers in a single instrument, the sig-natories of which were Austria-Hungary, Bel-gium, Denmark, France, Germany, Great Britain, Italy, Morocco, the Netherlands, Portugal, Spain, Sweden-Norway and the United States Among the matters settled in this Convention were the right of protection and the right of foreigners to acquire property (- Aliens, Property) An im-portant development was the collective recog-nition of the most-favoured-nation clause and of the common interests of the Western Powers in

ALGECIRAS CONFERENCE (1906) 9

Morocco, which acquired a droit de regard over

certain aspects of Moroccan internal policy The

Sherifian Empire thus accepted a sort of

inter-national tutelage (- Protectorates) The

im-plementation of the Madrid Convention was

supervised by the diplomatic representatives of

the signatory States in Tangier

Germany had expected that the open door

pol-icy established at Madrid would safeguard her

position in Morocco which was next in importance

to that of France and Spain and equal to that of

Britain However, French influence was growing

steadily under a policy of penetration pacifique,

and it soon became evident that France aimed at

the establishment of a protectorate similar to that

of 1881 over Tunisia After concluding an

arrangement with Italy concerning reciprocal

dis-interestedness over Tripoli and Morocco (1900),

France gained the support of Great Britain in a

declaration signed on April 8, 1904 (with a secret

annex); in exchange for this support the British

were granted a free hand in Egypt On October 3,

1904 an agreement with Spain was also concluded

concerning spheres of interest m Morocco

(- Spheres of Influence)

Not having been consulted or even properly

in-formed on the British-French agreement,

Ger-many feared for her position in Morocco During

a surprise visit to Tangier on March 31, 1905

Emperor William II declared that he regarded the

Sultan as an independent sovereign (-

Sovereign-ty) and that he hoped that under his rule a free

Morocco would be open to peaceful competition

by all nations, without monopolies or exclusions

On April 12, 1905 Chancellor von Bulow called

for an international conference on Morocco The

Sultan was willing, but France and Great Britain

initially refused At the end of the ensuing crisis,

Germany recognized in an exchange of - notes

dated July 8, 1905 that France enjoyed a special

position because of her long common frontier

with Morocco

The detailed programme for the international

conference was fixed on September 28, 1905

Thus, even before the conference opened, a

compromise was reached between the principle of

equal free access for the Western Powers and the

primacy of French interests This compromise was

to be reflected in the General Act of Algeciras

2 The Algeciras Conference

The representatives of the 13 participant States

of the Madrid Conference, with the omission of Denmark and the addition of Russia, convened in Algeciras on January 16, 1906 After 18 plenary meetings the Conference ended on April 7, 1906 with the signature of the General Act (CTS, Vol

201, p 39) The Act contained six main chapters:

- a declaration on the organization of the police force, which was to be trained by French and Spanish officers and non-commissioned officers and controlled by a senior Swiss officer;

- regulations on the surveillance and suppression of illicit weapons imports;

- a concession by the Sultan for a State Bank of Morocco under which each signatory State except the United States was entitled to one share of the capital, three shares, however, being in French hands;

- a declaration on the improvement of tax tion and on the creation of new revenue;

collec regulations on customs administration and on the suppression of fraud and smuggling;

- a declaration concerning impartial adjudication

of public services and public works contracts without reference to the nationality of the bidder

A number of articles of the General Act dealt with existing capitulatory rights As a whole, the Act reaffirmed the economic equality of all sig-natory States and underlined the independence of the Sultan, while maintaining the capitulatory system

The Algeciras Conference was a success for France and the 1906 agreement recognized her pre-eminence in the political field as well as in regard to the State Bahk The German Reich, together with Austria-Hungary, found itself isolated and confronted by the positions of France, Great Britain, Italy and Spain, who had reached a state of equilibrium in the pursuit of their respective North African interests The desire for equal rights (- States, Equal Treat-ment) on the part of an economically powerful newcomer was interpreted as expansionist inter-ference in areas already demarcated and as such was met by a common front of opposition

3 Subsequent Developments

The further consolidation of the French

POSI-10 ALGECIRAS CONFERENCE (1906)

tion in Morocco led to renewed tensions (e.g the

case of the Casablanca deserters in 1908; -

Ca-sablanca Arbitration (1909» However, on

Febru-ary 9, 1909 the German Reich reaffirmed in a

joint declaration with France that it was pursuing

economic interests only Germany recognized the

special political claims of France The French

Government reaffirmed its will to maintain

economic equality and not to impede the present

or future development of Germany's economic

and industrial interests However, the conciliatory

mood withered when, in March 1911, French

troops occupied Fez, which was besieged by

neighbouring tribes The German gunboat

crisis ended when the German Reich yielded and

on November 4, 1911 concluded a twofold

agreement by which it conceded to France the

rights of a protecting State in exchange for the

settlement of territorial claims in the French

Congo

In the 1911 agreement concerning Morocco,

Germany undertook not to impede French action

to introduce, in agreement with the Sherifian

Government, all necessary administrative,

judi-cial, economic, financial and military reforms and

she recognized the French right to occupy

Moroccan territory and to take measures for the

maintenance of public safety and order She also

accepted that the Sherifian Government should

entrust France with the representation and

pro-tection of Moorish nationals and their interests in

foreign countries Germany further agreed to

abolish her consular jurisdiction as soon as

France, in agreement with the signatory States of

the Act of Algeciras, had organized a judicial

system in accordance with the general principles

of law recognized in the signatory States, with the

condition that German nationals would receive

the same treatment as French citizens A future

revision of the lists of - protected persons and a

reform of the right of protection were also

ac-cepted In a special letter, Germany affirmed that

she would not oppose French intentions should

France deem it necessary to establish a

protec-torate over Morocco Thus, the way was opened

to full French domination over Morocco and to

the abolition of the capitulatory system

In return, France agreed to - guarantee the

principles of economic liberty and equal ment with regard to customs duties, taxation and transport tariffs as well as the terms of the Act of Algeciras concerning the State Bank, the award-ing of public contracts and the international bodies instituted in 1906

treat-Germany and France undertook to bring about the consent of the other signatory States of the Act of Algeciras to the provisions of the 1911 agreement The consent of these Powers, with the exception of the United States, enabled France to conclude the Treaty of Fez on March 30, 1912 (CTS, Vol 216, p 20) and to establish a protec-torate over Morocco

In the following years, most of the signatories renounced their capitulatory rights Great Britain followed only in 1937, and the United States as late as 1956 The rights of economic equality deriving from the Madrid Convention and the Act

of Algeciras were not invalidated by the ending of the capitulations (- United States Nationals in Morocco Case) In accordance with Art 141 of the - Versailles Peace Treaty (1919), Germany had to relinquish all her rights under the General Act of Algeciras and under the German-French Agreements of 1909 and 1911 Austria did the same under Art 97 of the - Saint-Germain Peace Treaty (see also - Phosphates in Morocco Case)

Maroc, Ministere des affaires etrangeres, Livres jaunes (1901-1912)

Documents diplomatiques fran~ais (1871-1914), 2e Sirie (1901-1911), 14 vols (1930-1955)

G DIERCKS, Die Marokko-Frage und die Konferenz von Algeciras (1906)

A TARDIEU, La conference d' Algesiras, Histoire diplomatique de la crise marocaine 15 janvier-7 avril

Algeciras-Kon-E SATOW, A Guide to Diplomatic Practice, Vol 2 (1922) 165-171

M OMAR EL-HAJOVI, Histoire diplomatique du Maroc (1900-1912) (1937)

AMERICAN CIVIL WAR 11

P BUTfIN, Le Drame du Maroc (1955)

R LANDAU, The Moroccan Drama 1900-1955 (\956)

Y FAMCHON, Le Maroc, d' Aigesiras a la souverainete

economique (1957) 18-29

HORST BLOMEYER-BARTENSTEIN

were joined by five further states - Arkansas, North Carolina, Tennessee, Texas and Virginia-and the Confederacy's capital was moved to Richmond, Virginia Eighteen states north of the Mason and Dixon line and the Ohio River, and later some western territories, actively supported the Federal Government During the war West

AMBASSADORIAL CONFERENCES see Virginia, seceding from Virginia, took the side of Conferences of Ambassadors the North, while three border slave states (Ken-

tucky, Maryland, and Missouri) remained

un-AMERICAN CIVIL WAR

The American Civil War from 1861 to 1865,

between eleven Southern secessionist states and

the Federal Government supported by the

Northern states, was the most important war in

the Western world during the 19th century

fol-lowing the battle of Waterloo in 1815, an

im-portance which is reflected in its influence on the

development of the international law relating to

- war, the status of rebels (- Recognition of

Insurgency) and neutrals (- Neutrality, Concept

and General Rules)

Following independence from Great Britain,

the political and geographical balance in the

United States, between the industrializing,

pro-tectionist, slave-free states in the North and the

states in the South whose plantation economies

were buttressed by slavery and the policy of free

trade, became increasingly unstable North-South

tensions were exacerbated in particular by the

issue of negro slavery, the "peculiar institution"

of the South, when an 1854 Act of Congress

allowed slavery in territories which had been

reserved for the westward expansion of the free

states in the North

In November 1860 the election to the

Presi-dency of Abraham Lincoln, a man who in his 1858

campaign for the Senate had declared himself

against slavery in principle, served to increase

fears in the South On December 20, 1860, before

Lincoln's inauguration, South Carolina, saon

fol-lowed by Alabama, Florida, Georgia, Louisiana

and Mississippi, withdrew from the Union,

claim-ing the right to - secession These six states

formed the Confederate States of America and

adopted a constitution which, apart from

expressly guaranteeing the institution of slavery,

was very similar to the Union Constitution They

committed

Hostilities commenced on April 12, 1861 with the surrender of Fort Sumter, South Carolina-then one of the few military installations in the South still in Federal hands - after a bombard-ment by Confederate troops While the Con-federacy took the view that the war was inter-national, the Union Government treated the conflict as a - civil war within the domestic jurisdiction of the United States and the rebels as traitors Even before the attack on Fort Sumter, the Union Government made it clear that it would consider recognition of the independence

of the Confederacy by a foreign power as an illegal act of - intervention to which the United States would respond accordingly In the end the United States succeeded in preventing European powers from recognizing the independence of the Confederacy and from intervening on its side ( - Recognition), but could not stop Great Bri-tain and most other commercial nations from recognizing the situation as one of belligerency ( - Recognition of Belligerency) and adopting the status of neutrality Initially, the Union Govern-ment protested against this recognition of the belligerency of the South with the argument that

war did not exist de facto, and that recognition

encouraged the rebellion, but in December 1862 the Supreme Court itself decided for the purposes

of - prize law, that war in the material and legal sense had begun with the attack on Fort Sumter, thus making it difficult for the United States to deny that war existed or to assert that other States did not have the right to proclaim their neutrality, which constituted a recognition of belligerency Lincoln's Blockade Proclamation of April 19,

1861 had claimed belligerent rights against foreign ships on the - high seas

The Confederacy, for its part, sought to gain

12 AMERICAN CIVIL WAR

recognition not only of belligerency but also of

independence and to persuade Great Britain and

possibly France to intervene directly on its behalf

Accordingly, the Confederacy sent missions early

in the war to Britain seeking to establish

diplomatic relations Later, two of its envoys to

Europe who had embarked as passengers on the

British steamer Trent in Havana, were arrested

and taken to Boston after a Union - warship had

stopped the Trent on the high seas Britain

reac-ted by declaring the seizure a gross violation of

international law and demanded the release of the

emissaries and an apology within seven days

After British troop movements to Canada and the

West Indies and representations by other

Euro-pean States, the Government of the Union

relen-ted and returned the emissaries, who went on to

Britain and France where informal discussions

were held with them

The question of recognizing the independence

of the Confederacy was discussed in both the

British and French cabinets, especially in the

spring of 1861 and the summer and autumn of

1862, but the Union's victory at Antietam in

September 1862 made this option less attractive

Russia, Austria and Prussia had made it clear

early in the war that they were not disposed to

recognize revolutionary governments

Immediately following Antietam, Lincoln

issued his preliminary proclamation of

emancipa-tion, promising to free all slaves in rebel territory

by January 1, 1863 unless those states returned to

the Union The formal constitutional amendment

abolishing slavery was moved on January 31,

1865, the actual ratification taking place after the

war The emancipation of the slaves not only

added recruits to the Federal armies where the

number of black troops at the end of the war

totalled 178895, but, more significantly,

preven-ted Great Britain from recognizing and

support-ing the Confederacy because British sentiment

would not permit the support of slavery

While the Confederate defeats at Gettysburg

and Vicksburg in the summer of 1863 ensured the

continuing neutrality of Britain and France,

French mediation proposals were rejected by the

United States, who declared them legally

per-missible but unacceptable, adding that they would

of the Union victory over the South, which, in the absence of foreign intervention and aid could not sustain its initial military advances The Civil War came to an end with General Lee's surrender at Appomatox, Virginia on April 4, 1865 and General Johnston's surrender on April 26

The American Civil War had a profound pact on the development of modern weaponry and techniques and was a 'modern war' insofar as casualties on both sides were enormous (the federal armies suffered 359528 dead and 275 175 wounded; the Confederate forces: about 258000 dead and probably 225000 wounded) By preserving the Union and eliminating slavery from the continent, the American Civil War laid the basis for a centralization of federal authority and a diminution of states' rights and also pro-vided impetus for the rise of the United States as

im-a mim-ajor world power

In terms of international law, the American Civil War proved important for the position of

priva-teers (- Privateering) under the Declaration of Paris of 1856, to which the United States was not

a party, but to which the Confederacy acceded on August 8, 1861 in response to a British request, the relationship between "belligerency" and "in-surgency", and the practice of - arbitration as a means of settling disputes as, for example, in the

- Alabama Case It also prompted the tion of a code of - land warfare, prepared by Francis Lieber and adopted by the United States War Department on April 24, 1863 as General Orders No 100, "Instructions for the Govern-ment of Armies of the United States in the Field" The latter was utilized not only by sub-sequent American governments but also by European nations in drafting instructions for their armies The Lieber Code influenced the declara-tion of the international conference at Brussels in

produc-1874, the Oxford Manual of the - Institut de Droit International (1880), and the Hague Regulations of 1899 (revised in 1907) on the Rules

of Land Warfare (- Hague Peace Conferences of

1899 and 1907; - War, Laws of, History) Finally, the American Civil War generated widespread interest in the study of international law Soon after the war, the Institut de Droit

be considered as - unfriendly acts if pressed International and the - International Law Superior Northern resources provided the basis Association were both founded

BALANCE OF POWER 13

1.M CALLAHAN, Diplomatic History of the Southern

Confederacy (1901, Repr 1964)

1.1 ROBERTSON, Der amerikanische Sezessionskrieg

1861-1865, Wehrwissenschaftliche Rundschau, Vol 11

(1961) 208-218

E.C SURRENCY, The Legal Effects of the Civil War,

American Journal of Legal History, Vol 5 (1961)

Q WRIGHT, The American Civil War, 1861~5, in: R.A

Falk (ed.), The International Law of Civil War (1971)

30 110

H.M HYMAN, A More Perfect Union, The Impact of the

Civil War and Reconstruction on the Constitution

(1973)

A BESTOR, The American Civil War as a Constitutional

Crisis, in: L.M Friedman and H.N Scheiber (eds.),

American Law and the Constitutional Order (1978)

219-234

PETER MALANCZUK

BALANCE OF POWER

1 Notion

The concept of a balance of power implies an

equality of force as between the States, or groups

of States, within the system in question Such a

balance, it is asserted, works for peace since no

- State is in a position to seek - hegemony

The balance may be conceived of as a status

maintained by self-correcting natural forces or as

the product of deliberate human intervention

Balances within regions may overlap a world-wide

equilibrium Writers sometimes refer to a

favourable balance of power, as they might

speak of a favourable balance of payments While

equilibrium analysis belongs primarily to the

realm of international political science, it has also

played a role in international legal theory

2 Historical Evolution of Concept

(a) Early period to 1648

A developed balance of p ,wer theory requires

acceptance of the propositinn that there are

in-dependent sovereigns whose actions towards each

other are not dictated either by a superior

authority or by clearly ascertainable rules of law

(- Sovereignty) Such States are free to form and re-form - alliances and, under some circum-stances at least, to make - war Those pre-conditions do not exist when there is thought to

be a single earthly sovereign (the Holy Roman Emperor) or spiritual leader (the Pope) The sys-tem can include States regarded as outlaws or heretics which are, therefore, ineligible as allies and are even legitimate targets of just wars by believers As early as the 15th century such con-ditions prevailed in Italy, and writers such as Guicciardini saw maintaining the balance of power as a major function of the Medici and other rulers of city-States The concept of balanc-ing also had special appeal for an age in which symmetry was discovered in architecture, physics and accounting

However, the Italian balance was overwhelmed

by external forces, and the Europe that was torn

by the wars of religion was not fertile ground for equilibrium analysis Here and there independent thinkers such as Francis Bacon and nationalistic statesmen such as Cardinal Richelieu expressed or practiced the concept True development of the equilibrium, however, required that religious animosities and drives for hegemony be burned out by the ordeal of the Thirty Years War

14 BALANCE OF POWER

among other things, for "the preservation of the

Balance of Power in Europe"

On the Continent, the idea of balance also

exerted a strong influence on the rhetoric and

motivations of statesmen Perhaps the most

dramatic legal expression of that consensus is to

be found in the Treaty of Utrecht (1713) which

ended the War of Spanish Succession The

Treaty's stated purpose was to establish "a just

equilibrium of power (which is the best and most

solid basis of mutual friendship and of

perfor-mance and concord)" The general aspiration was

made concrete in provisions barring the

con-solidation of power of the French and Spanish

Bourbon branches

Reviewing this period, one might credit the

balance of power with having made a major

con-tribution towards preventing the wars that

punc-tuated this period from attaining the intensity of

those in the preceding and following centuries

That achievement was bought for a price which

included, for example, the partition of Poland by

powerful neighbours, including the new European

power Russia

Throughout this period, propagandists, moralists

and lawyers referred to the equilibrium idea

In-deed, it is difficult to disentangle the exhortations

addressed to the conscience or judgment of the

prince from assertions of the existence of a true

set of rules of international law (- History of the

Law of Nations) It was easy to condemn a State

seeking to acquire hegemony through aggressive

tactics that threatened harm to its neighbours

What posed difficulties was the possibility of a

State accumulating so much power through its

own internal growth of wealth and resources,

assisted perhaps by dynastic fortunes, so as to

upset the existing balance

In the first case, it was thus easy to justify - and

sometimes to regard as a duty - the creation of

alliances to keep the aggressor in its place Even

military action could be justified, extending

per-haps to war that was not, strictly speaking, an act

of - self-defence but a preventive assault As to

the second case, writers divided as to the

lawful-ness of actions taken to redress a balance upset by

legitimate forces In any event, most orthodox

writers saw in the balance an organizing principle

amid anarchy and urged princes to heed its

prin-ciples in the name ()f self-interest or of - natura!

law Still, rulers who sought power could find support in the writings of such as Johann Justi who, in the first major book dedicated to the balance, saw in it only a chimera

Towards the end of the period one finds writers who reject the concept as being part of a State system they consider immoral and dangerous Returning to attitudes that saw Europe as a single interconnected system, they imagined institutions

to substitute for the empire and the papacy in bringing the rule of law and reason to the con-tinent The Abbe de Saint-Pierre's vision of Europe rested upon a league of States rather than upon balance The philosopher Immanuel Kant considered that "universal peace on the basis of the so-called balance of power is a mere chimera" (- Peace, Historical Movements towards) He, too, sought a political structure that could make decisions that the balance system left to the self-interested judgment of princes

(c) From 1789 to 1914

The French Revolution posed threats to the balance system in both power and intellectual terms The dynamic force of the revolutionary people in arms, later magnified by the ambitions

of Napoleon, not only overturned the old balance but at times substituted for it a continental French hegemony amid vassal States Hindered by sloth and jealousies the monarchies sought to combine

to restore the - status quo Their treaties of alliance, chiefly those of Chaumont, Reichenbach and Teplitz, invoked the balance of power, even

as their own peoples were increasingly motivated

by national feelings that mirrored the French example

When the allies prevailed at Leipzig and Waterloo, they met at the - Vienna Congress (1815) to reconstruct the old order, on the pillars

of legitimacy and balance While anxious to ensure that France was rendered harmless by the restoration of the Bourbons and the diminution of its territories, they included her within the new system The map of Europe was redrawn, various small States being wiped out in the process, to satisfy the - great powers' felt need for security

In order to maintain this equilibrium, a primitive international organization, the Concert of Europe, was temporarily established This system proved unable to withstand the tide of national-

BALKAN WARS (1912/1913) 15

ism and the emergence of unified German and

Italian States Although later practitioners of

state-craft such as Bismarck and Disraeli sought to

create a new structure of balancing alliances, the

underlying dynamics of national ambition and

fear proved too strong and the outbreak of World

War I discredited the whole concept

In the 19th century, publicists' opinions of the

balance polarized Nationalists and populists

ten-ded to see it as a tool of monarchical-aristocratic

manipulation Aristocrats such as Friedrich

Gentz, secretary to Metternich the great

prac-titioner, leaned heavily upon it National

per-spectives differed strikingly Although Britain

boasted of having called the New World into

being to redress the balance of the Old, neither

United States nor Latin American authors

thought well of the balance Italians saw it as a

useful protection, but Germans rather as an

ob-stacle to power The French wavered as conditions

changed, while British loyalty to the balance

remained steady Meanwhile as legal analysis

sharpened the distinction between morality and

policy and law, few writers saw a meaningful

obligation to preserve the balance or a legal

reason to take violent steps to protect it Indeed,

they tended increasingly to deny it any status as a

legal rule even when they acknowledged it to be

the necessary precondition of all international

law

3 Current Status of the Concept

Since 1914 the balance of power has led a

rather shadowy existence It was denounced by

President Wilson and only half-heartedly

sup-ported by its traditional European friends From a

legal perspective it was displaced by the creation

of first the ~ League of Nations and then the

~ United Nations as well as by the outlawing of

war It could no longer be invoked to justify

violent preventive action outside the scope of

individual or ~ collective self-defence Thus, the

balance is seldom referred to as such in modern

international law literature

However traces of equilibrium thinking

per-sisted in the minds of lawyers involved in drafting

treaties on ~ disarmament or legislation for

national security, even if the talk was now rather

of the balance of terror or mutually assured

des-truction The concept was also preserved to some

extent by those who created the new international organizations with ~ weighted voting rights and

~ veto powers to preserve the relative positions

of the great powers

Political scientists have also tended to shun the term They observe that in the 1980's the pre-conditions of a classical balance system, including

a relatively small number of States sharing a common political code and having a capacity to group around leaders in shifting coalitions, are no longer present At the most one might see in the new styles of analysis of multipolar international systems a descendant of the classical balance concept

A STIEGLITZ, De I'equilibre politique, de legitimisme et

du principe des nationalites (1893)

E KAEBER, Die Idee des europiiischen Gleichgewichts in der publizistischen Literatur yom 16 bis zur Mitte des

18 J ah rh underts (1907)

E GULICK, Europe's Classical Balance of Power (1955)

S HOFFMAN, Primacy of World Order? (1978)

A VAGTS and D VAGTS, The Balance of Power in national Law: A History of an Idea, AJIL, Vol 73 (1979) 555-580

Inter-ALFRED V AGTS DETLEV V AGTS

BALKAN WARS (1912/1913)

1 Balkan Alliance

The ~ Berlin Congress of 1878 had not brought a stable order to the Balkans The Chris-tian populations were still unsatisfied, and the Young Turk Revolution of 1908 had not created better prospects for the Balkans The Balkan States had become aware that they might best attain their goals on their own; but their aims were contradictory regarding Macedonia, where various armed bands fought amongst themselves and oppressed the inhabitants

During the Turco-Italian war in the spring of

1912, Bulgaria, Serbia, Greece and Montenegro succeeded by secret treaties (~ Treaties, Secret)

in forming an ~ alliance known as the Balkan League (For the treaties between Bulgaria on the one side and Serbia and Greece on the other, see CTS, Vol 215, p 390 and Vol 216, p 197.) The conquered territories of Turkey were to become

~ condominiums and subsequently to be divide,!:

16 BALKAN WARS (1912/1913)

Serbia renounced the greater part of Macedonia;

and the Tsar was to arbitrate if necessary

2 First Balkan War

In September 1912 the European Concert

(Austria-Hungary, France, Germany, Great

Bri-tain, Italy, Russia) became alarmed and warned

the Balkan League that it would not permit

ter-ritorial changes But Montenegro declared - war

against Turkey on October 8, and on October 17

and 18 Montenegro's allies were drawn into it

The campaign was successful beyond expectation

The Turks were soon reduced to the stronghold

around Constantinople and to the fortresses of

Adrianople, Janina and Scutari A partial

- armistice from December 3, 1912 to February

3, 1913 failed to bring peace The Turks lost their

outlying fortresses, but held firm at

Constan-tinople

3 Peace Treaty of London

As in 1878, the Powers of the Concert acted on

the - guarantee for Turkey or, as events turned

out, on their asserted right to dispose of her

territories Parallel to the belligerents'

negotia-tions, which began on December 16, 1912, the

Powers met in a - conference of ambassadors in

London under the chairmanship of British

Foreign Secretary Sir Edward Grey A - peace

treaty, the Treaty of London, was eventually

sig-ned on May 30, 1913 (CTS, Vol 218, p 159) In

formulating the treaty, the Powers had not been

able to ignore the outcome of the campaign

Thus, Turkey was reduced in Europe to the

Enos-Midia Line: Macedonia, Thrace and Crete were

ceded to the Balkan League; and the Powers were

given the mandate of disposing of Athos, Albania,

and the islands in the northern and eastern

Aegean This treaty was not formally ratified, and

some authors regard it as a preliminary step

towards a later treaty (- Treaties, Conclusion

and Entry into Force) But the Powers acted upon

it, and many parts of it were confirmed by later

treaties and decisions

4 Second Balkan War

During the First Balkan War the League had

not only occupied the territories allotted to them

in the alliance Bulgaria, whose forces were

heavily engaged outside Constantinople, saw the

greater part of Macedonia conquered by the Serbs and the Greeks (- Conquest) These wanted to retain the conquered territories, and Serbia requested a modification of the treaty of alliance Moreover, Romania, having remained neutral (- Neutrality, Concept and General Rules), now pressed an old claim to Southern Dobruja against Bulgaria Russia sought in vain to mediate in all these disputes After some minor incidents, Bul-garia tried to oust her allies from Macedonia by force on June 30, 1913 But when Romania mar-ched against her and Turkey seized the oppor-tunity to re-enter the war, Bulgaria abandoned her efforts

5 Treaty of Bucharest

The former Balkan allies and Romania tiated at Bucharest without the participation of the Powers of the Concert By a treaty of August

nego-to, 1913 (CTS, Vol 218, p 322), Bulgaria ceded Southern Dobruja to Romania and obtained only Western Thrace, with an outlet to the Aegean Northern and Western Macedonia went to Serbia, and Southern Macedonia and Crete went to Greece

This treaty was supplemented by many others Bulgaria made peace with Turkey on September

29, 1913 (and returned Adrianople on that date), with Greece on November 14, 1913, and with Serbia on March 14, 1914 The frontiers between Greece and Serbia had been fixed on June 1,

1913, and between Serbia and Montenegro on November 7, 1913

Apart from the new frontiers, two matters arose from those texts The United States had suggested to the delegates the securing of reli-gious freedom in the entire Balkan region The Treaty of Bucharest does not mention it, but the three separate treaties with Turkey protected the Muslim - minorities in the ceded territories and the Bulgarian minority in Turkey In an exchange

of - notes in July/August 1913, Romania obtained protection of the schools and churches

of the Kutzo-Vlachs in the other Balkan States The same three treaties also state expressly that the inhabitants were to acquire the - nationality

of the new sovereign (until then this had been self-evident) and that they could opt for Turkish nationality (- Option of Nationality) if leaving the Balkans

BALKAN WARS (1912/1913) 17

6 Further Developments

The six Powers of the European Concert had

proved rather helpless in these crises They had

been unable to prevent the wars and then could

not ignore their results The idea of revising the

Treaty of Bucharest had to be abandoned, and

the other treaties were concluded without their

intervention They were reduced to the

com-petences expressly accorded to them in the Treaty

of London

Albania had been destined to become a

separate political unity as far back as 1900/1901

by an understanding between Austria and Italy

The Tsar consented to this plan on a visit to the

King of Italy in October 1909 But in 1913 their

interests diverged and Montenegro, Serbia and

Greece laid claims to parts of Albania Serbia,

now protected by Russia, wanted an outlet to the

Adriatic, or at least a ~ free port with a secure

railway connection; Austria and Italy were strictly

opposed to such a development

The ambassadorial conference at London

pro-claimed a statute for Albania as an independent,

neutralized principality which was to remain

un-der the control, for some time, of an international

commission (July 29, 1913, CTS, Vol 218, p 280;

~ Neutralization) After some delay, the throne

was given to a German prince, William of Wied,

nephew of the Queen of Romania; he arrived in

the country in March 1914, when it was in a state

of anarchy and ~ civil war The frontiers of

Albania had been fixed by two commissions of the

Powers, on March 20, 1913 for the northern part,

and on December 17, 1913 at Florence for the

south·ern part

Heavy pressure had to be applied on Albania's

neighbours in order to impose these decisions

Montenegro saw a ~ naval demonstration and a

pacific blockade (~Blockade, Pacific) of her

coast in April 1913; Serbia retreated from

Al-banian soil only unwillingly and had to be bought

off by stretches of land; Greece obtained the

Aegean Islands only upon condition that she

recognize Albania's southern frontier

The decision on the Aegean Islands was

announced to Greece and Turkey on February 13

and 14, 1914 Greece obtained the islands except

Tenedos, Imbros and the Rabbit Island The

Dodecanese was occupied at that time by Italy,

who obtained its cession from Turkey by Art 15

of the ~ Lausanne Peace Treaty (1923) Art 12

of the same Treaty confirmed the decision of 1914 concerning the other Aegean Islands Mount Athos was subsequently to be included in this decision; the idea of placing it under a common regime by the orthodox States had been aban-doned upon protests by 17 Greek monasteries

As in 1878, public opinion was roused by reports of barbaric warfare (~War, Laws of History) The ~ Carnegie Endowment for Inter-national Peace dispatched a commission to the theatre of war (~ War, Theatre of) which arrived

after the end of the hostilities and despite many difficulties 5,ucceeded in collecting evidence Its report shows that all belligerents had violated the Hague Rules on ~ Land Warfare (~Hague

Peace Conferences of 1899 and 1907); most of them had not even communicated the Rules to their troops The worst excesses, however, had been perpetrated by mobs in ethnically mixed regions

8 Subsequent Events

All the Balkan States became involved in World War I, but the frontiers drawn earlier in the peninsula proved relatively stable The only major change was the cession of Western Thrace

by Bulgaria to Greece by the ~ Neuilly Peace Treaty (1919) Serbia and Romania expanded at the expense of Austria and Hungary, and Mon-tenegro was absorbed in the Yugoslav State The map, save for the Dodecanese, remained unmodified even by World War II

Some of the dubious points in the imbroglio of related texts and decisions are treated in the

~ Lighthouses Cases, the ~ Ottoman Debt Arbitration and the ~ Monastery of S~·inL

Naoum (Advisory Opinion) On the whole, title

to former Turkish territory was seen to have beel} transmitted by the sweeping clause in Art 16 of the Lausanne Peace Treaty

Although in 1913 there was some tendency to consider the nationality of the inhabitants in boundary-making, many minorities existed without adequate protection The treaties after World War I extended systematic minority pro-tection to the whole region Albania signed a

18 BALKAN WARS (1912/1913)

- declaration on October 2, 1921; this led in

1935 to an advisory opinion of the - Permanent

Court of International Justice on the - Minority

Schools in Albania Following World War II,

Yugoslavia tried to solve her ethnic problems by the

structuring of a - federal State and by the granting

of local autonomies, but unrest has cropped up from

time to time

9 End of the European Concert

The termination of the Balkan Wars was the

last task of the European Concert Its role was

not a fortunate one, as the Balkan States had

grown recalcitrant to the influence of the Powers

The latter had, moreover, split up into the Triple

Alliance and the Triple Entente, and interests

diverged even within these groups Therefore the

instrument of collective mediation (-

Concilia-tion and MediaConcilia-tion) was no longer adequate; the

Powers had neither common interests nor a

common doctrine The formal tool for

inter-vention in the Balkans had been the common

guarantee for the integrity of Turkey, but it had

too often been misused towards her

disin-tegration Thus there was no longer any faith in

this system

If in general the boundaries drawn or approved

by the Concert have proved stable and if Albania,

its creation, has survived, it is not because of the

intrinsic merit of the Concert's work, but rather is

owing to the effect of various supervening factors

The Balkan Wars of 1912/1913 are properly

judged as final act in the decline of the European

Concert

Diplomatische Aktenstiicke betreflend die Ereignisse

am Balkan, 13 August 1912 bis 6 November 1913

(1914)

Carnegie Endowment for International Peace, Report

of the International Commission to Inquire into the

Causes and Conduct of the Balkan Wars (1914)

Die GroBe Politik der Europaischen Kabinette

1871-1914, Vols 3>-36 (1926)

Documents diplomatiques fran~ais 1871-1914, Series 3,

Vols 1-10 (1929-1936)

K STRUPP Documents pour servir a l'histoire du droit

des gens, Vol 2 (2nd ed 1923) 49-113

J SWIRE Albania, The Rise of a Kingdom (1929)

w MILLER The Ott~man Empire and its Successors

1 The Balkans before 1878

After the - Crimean War the European Concert signed the Treaty of Paris (March 30, 1856), which gave a - guarantee for the in-dependence and integrity of Turkey and provided for mediation (- Conciliation and Mediation) Austria, France and Great Britain subsequently reaffirmed the guarantee (April 15, 1856) Thus, the Concert became involved in further oriental troubles

The Paris Treaty system did not hold long As early as 1861 the - Great Powers intervened in Syria Their ambassadors in Constantinople, meeting frequently in conference (- Conferences

of Ambassadors), exerted a real tutelage over Turkey, but did not obtain sufficient reforms to stop the unrest Russia recovered from her Cri-mean defeat and took advantage of France's weakness after the Franco-Prussian war of 1870,

to abrogate the - neutralization of the - Black Sea (Treaty of London, March 13, 1971) Gradu-ally the Powers became convinced that Turkey could not hold her European territory, and some

of them negotiated secretly about her - memberment

dis-The final crisis began in 1875 with the Bosnian uprising, Montenegro and Serbia taking sides with the insurgents In 1876 Bulgaria rose to arms, and the cruelties perpetrated on both sides shocked world opinion The three northern Powers asked for action by the Concert, which proceeded to formulate proposals to end the rebellions and to improve the situation of the Christians

BERLIN CONGRESS (1878) 19 troops reached the gates of Constantinople To

prevent them occupying the city, Great Britain

sent a fleet into the Straits ( -+ Dardanelles, Sea of

Marmara, Bosphorus) and seemed to be on the

verge of war with Russia ( -+ Naval

Demon-stration)

On March 3, 1878, Russia and Turkey signed a

preliminary peace treaty at San Stefano (CTS,

Vol 152, p 395) A new autonomous principality

of Bulgaria under the suzerainty of the Sultan was

to extend from Varna to Ochrid with an outlet to

the Aegean Sea Serbia and Romania were to

become independent, Serbia and Montenegro to

obtain additional territory ( -+ Territory,

Acquisi-tion)

Austria and Great Britain remonstrated against

this treaty, and a congress of the signatories of the

Paris Treaty was suggested With some hesitation,

Berlin was chosen as its seat, and after dramatic

-+ negotiations and delays it met on June 13, 1878

( -+ Congresses and Conferences, International)

3 Congress Negotiations

Originally, the Congress was meant to adapt

the Treaties of 1856 and 1871 to the new

situa-tion, but the invitation to the participants called

only for a discussion of the treaty of San Stefano

The problem was not whether two parties to

the Paris Treaty might modify it between

them-selves ( -+ Treaties, Revision), but rather that the

consent of the Concert to territorial changes was

required because it had given guarantees in 1856

The status and the -+ boundaries of the existing

and new Balkan States were determined without

their participation Only once were the delegates

of Greece and Romania heard

Deliberations were facilitated by former secret

bilateral dealings ( -+ Diplomacy, Secret) Austria

and Russia had fixed their Balkan aspirations at

Reichstadt on July 8, 1876, with addenda of

January 15 and March 18, 1877 Great Britain had

a partial understanding with Russia and obtained

outside the Congress the administrative cession of

Cyprus (June 4, 1878)

The Congress ended on July 13, 1878 with the

signature of the Treaty of Berlin (CTS, Vol 153,

p 171), which superseded most parts of the

Treaty of San Stefano while borrowing many clauses from it

Various alterations in favour of the Christian populations were imposed on the Ottoman Empire The vassal States Serbia and Romania were made independent, and the dubious in-dependence of Montenegro was recognized (Arts

26, 34 and 43; -+ Recognition) These three States obtained additional territory (Arts 28, 29, 36 and 46) For Greece, a -+ pactum de contrahendo

concerning parts of Thessaly and Epirus was agreed upon (Art 24)

Bulgaria became a new vassal State but was much reduced (Art 2) Eastern Rumelia obtained provincial autonomy under a Christian governor, subject to some supervision by the Great Powers (Arts 13 to 19)

Bosnia and Herzegovina came under Austrian administration, and the sanjak of Novi Pazar un-der military occupation (Art 25)

The provincial organization was to be reformed with the participation of the local element (Art

23, para 2) Non-discrimination and pratection of all creeds was proclaimed and also imposed on the new and aggrandized States (Arts 5, 27, 35 and 44; -+ Racial and Religious Discrimination;

-+ Human Rights) Some authors consider these dispositions as an early form of international protection of -+ minorities

Behind these settlements stood interests of the Powers, emerging openly in the cession of South-ern Bessarabia (to the detriment of Romania) and parts of Armenia to Russia (Arts 45 and 58) Batum, on account of its importance for trade to Persia, was to be a -+ free port (Art 59) The status of the Straits was not modified The

-+ Danube regime was confirmed (Arts 52 to 57) Some clauses of the Treaty of Berlin derive from contemporary general international law Succession to treaties signed by Turkey was im-posed on the new and aggrandized States (Arts 8, 10,37,38 and 51; -+ Treaties, Effect of Territoria: Changes) Transit was secured (Arts 8, para 2,

37, para 2 and 48; -+ Transit over Foreign ritory) Emigrants from ceded territories were protected (Arts 12, 30 and 39; -+ Protected Per-sons; -+ Emigration)

Ter-The -+ Institut de Droit International had recalled to the belligerents the jus in bello

( -+ War, Laws of) constantly violated by the

20 BERLIN CONGRESS (1878)

irregulars (- Combatants) The Treaty banned

bashi-bazouks from the Eastern Rumelia

gar-risons (Art 15, para 4)

5 Implementation of the Berlin Treaty

Since the Berlin Treaty was not a peace treaty,

Russia and Turkey concluded a treaty of peace on

February 8, 1879 (CTS, Vol 154, p 477)

modify-ing the rest of the San Stefano Treaty European

Commissions fixed the new frontiers and

elaborated the lengthy Statute of Eastern

Rumelia An Austrian-Turkish Treaty of April 21,

1879 (CTS, Vol 155, p 59) regulated the

occupa-tion of Bosnia, Herzegovina and Novi Pazar

Greece and Turkey fixed their new frontiers with

the help of the Concert

6 Subsequent Developments; Evaluation

The Congress failed to solve the Balkan

prob-lems Macedonia, detached from Turkey at San

Stefano but returned at Berlin, continued to be

unrUly After a major rebellion in 1903, Austria

and Russia took an initiative in the name of the

Concert (Miirzsteg programme), dividing

Mace-donia between the Powers, except Germany: The

gendarmerie and finances were reorganized under

nominal direction of the Turks

The Balkan States started to engage actively in

politics of their own, exploiting the jealousies

between the Powers The interests of the Powers

themselves widened and collided A typical case is

the separate treaty between Austria and Italy

accompanying the Second Triple Alliance of

February 20, 1887, whose provision for possible

action in the Balkans was to recur in all the

further texts of the - Alliance In practice, Great

Britain secured Egypt, France secured Tunisia,

and Italy - much later - Libya

The Powers, grouping themselves after some

hesitation in the Triple Alliance and Entente,

reached understandings about the further fate of

the Balkans in the Three Emperors' Alliance of

June 18, 1881 and the Austrian-Russian

cor-respondence of May 8 and 17, 1897

Thus the political map outlined at Berlin soon

began to change Eastern Rumelia united with

Bulgaria in 1885 The Principalities promoted

themselves to Kingdoms: Romania in 1881, Serbia

in 1882, Bulgaria in 1908, Mplltenegro in 1910

Crete was granted autonomy in 1898, but Greece,

taking sides, lost her war with Turkey and had to

retrocede part of her gains of 188l In 1908, Austria annexed Bosnia and Herzegovina (- Annexation) Some Powers wished to call a conference of the Concert but, after Turkey and Serbia consented, the derogations to the Berlin Treaty were agreed to by - notes and Mon-tenegro obtained full - sovereignty on her coast Bulgaria declared herself independent

Other clauses of the Berlin treaty were similarly disregarded Russia repudiated on June

23, 1886 her promise to make Batum a free port, claiming that it was only a unilateral - declara-tion of intent (- Unilateral Acts in International Law) In 1896, the Powers intervened in favour of the Armenians who had been assured special protection by Art 61 of the Berlin Treaty In

1902, the United States initiated a - demarche in

favour of the Romanian Jews, but neither Romania nor the Powers reacted

The Berlin Congress, seemingly successful in preserving peace, marks the beginning of the dis-integration of Turkey The European Concert proved to be lacking a common policy; European interest in the Orient degenerated into the dis-tribution of spoils This development culminated

in the - Balkan Wars (1912/1913)

Protocoles du Congres reuni Ii Berlin du 13 juin au 13 juillet 1878, Martens NRG2, Vol 3 (1878)

Documents diplomatiques fran~ais, Series 1, Vol 2 (1930)

Die GroBe Politik der Europaischen Kabinette

1871-1914, Vol 2, Der Berliner KongreB und seine geschichte (1922)

Vor-Diplomatische Aktenstiicke iiber die Reformaktion in Mazedonien 1902-1906 (1906)

D HARRIS, A Diplomatic History of the Balkan Crisis of 1875-1878 (1936)

B.H SUMNER, Russia and the Balkans 1870-1880 (1937)

W.N MEDLlCOTI, The Congress of Berlin and After (1938)

W.N MEDLlCOTI, Bismarck, Gladstone and the Concert

c and' B JELAVICH, The Establishment of the Balkan National States 1804-1920 (1977) 138-169

R MELVILLE and H.-J SCHRODER (eds.), Der Berliner Kongress von 1878 (1982)

FRITZ MUNCH

BERLIN WEST AFRICA CONFERENCE (1884/1885) 21

BERLIN WEST AFRICA

CONFERENCE (1884/1885)

By 1870 European expeditions had begun to

return with information on the interior of the

African continent Leopold II, King of the

Bel-gians, promoted interest in the region and in 1876

founded the International Congo Association All

this activity provoked the so-called scramble for

Africa and the danger of clashes between rival

European powers (- History of the Law of

Nations: Africa)

In 1878 the - lnstitut de droit international

addressed the problem and in 1883 proposed the

- neutralization of the Congo Basin and the

establishment of free commerce and navigation

In November 1884, a conference met in Berlin to

consider a regime for the newly accessible regions

of Africa (- Colonies and Colonial Regime)

Present at the Conference were

Austria-Hun-gary, Belgium, Denmark, France, Germany,

Great Britain, Italy, the Netherlands, Portugal,

Russia, Spain, Sweden-Norway, Turkey and the

United States The International Congo

Asso-ciation, which had in the meantime obtained

sovereign rights by treaty from numerous African

chiefs, was present behind the scenes; Henry

Stanley, the explorer, was in its service and came

to Berlin as a consulting member of the American

delegation

The United States had recognized the

Asso-ciation as a friendly - government on April 22,

1884 ( - Recognition); during the Conference,

the other powers, with the exception of Turkey,

followed suit by - declarations or conventions

with the Association; the texts are annexed to the

protocol of the 9th meeting

The General Act of the Conference of

Febru-ary 26, 1885 (CTS, Vol 165, p 483) delimited a

zone of free trade for all nations; it comprised the

hydrographic Congo Basin, a stretch of the

Atlantic Coast, on both sides of the mouth of the

Congo, and East Africa between 5°N and the

mouth of the Zambezi (Art 1) The regime was

described in Arts 2 to 5; Art 6 imposed upon

those powers exercising - sovereignty in the

zone the duty to further the development of the

local inhabitants and to suppress - slavery and

the slave trade A subsequent, separate

declara-tion (Art 9) emphasized the prohibideclara-tion of

slavery The zone was placed under a neutrality

system (Arts 10 to 12) The Navigation Acts for the Congo (Arts 13 to 25) and the Niger (see

- Niger River Regime) (Arts 26 to 33) were inspired by the Vienna provisions on - inter-national rivers (- Vienna Congress (1815» and the - Danube regime, but the Niger (which is outside the Congo zone) was not to have a river commission and a Congo River commission never came into existence

The General Act stipulated that any power acquiring coastal territory anywhere on the Afri-can contin~.;.t (- Territory, Acquisition) must in-form all other parties and implement sufficient authority to maintain vested rights and free trade where introduced (Arts 34 and 35)

The Act was not ratified by the United States, but the International Congo Association was permitted to accede; its recognition was thus a by-product of the Conference Shortly thereafter

it changed its name to the Congo Free State, with Leopold II as its head in personal union with Belgium, and participated in subsequent treaty-making activity with respect to Africa, in parti-cular the conclusion of boundary treaties, until it became a Belgian colony in 1908 (Archives diplomatiques Vol 107 pp 291-418; Vol 108, pp.5-244)

The Berlin Act of 1885 was supplemented by the Brussels General Act of July 2, 1890 (CTS, Vol 173, p 293) which suppressed the slave trade

in the whole of Africa and placed restrictions on trade in firearms (- Arms, Traffic in) and liquor between 200N and 22°S The liquor regime waS again modified on June 8, 1899 (CTS, Vol 187, p

346) France and Germany extended inter se the

Niger regime to the Chari and the Lagone by delimiting the - boundaries of Cameroon in 1894 and 1908 (CTS, Vol 180, p 75; Vol 206, p 403) Following World War I the defeated powers were forced to abandon their rights in the Congo Basin, and a restricted group of the parties to the

1885 Act concluded a new set of conventions at

St Germain on September 10, 1919 (CTS, Vol

225, pp 482, 500; Vol 226, p 1) (- Treaties, Revision) The new Congo regime was upheld by the - Permanent Court of International Justice

in the - Chinn Case (1934) when asked to determine whether the river transport regulations enacted by Belgium were compatible with free trade and navigation; Judges van Eysinga and Schiicking, however, were of the view that merely

22 BERLIN WEST AFRICA CONFERENCE (1884/1885)

a group of parties could not modify the Berlin Act

of 1885

The Act had been intended to be general

in-ternational law and to bind successors to

ter-ritories situated in the areas ruled by it (Arts 13,

26, and the Declaration of the

Inter-national Congo Association) But in 1964 the

States of the Niger Basin abolished the

Naviga-tion Act, and it is doubtful how far the

eman-cipated States of the Congo Basin intend to

maintain the regime of 1885-1919 (see - State

Succession; - Treaties, Effect of Territorial

Changes; - Treaties, Termination; -

Decoloni-zation)

Arts 34 and 35 on the modalities of acquiring

African coastal territories were soon generalized

by part of the doctrine, and the principle of

effective occupation (- Effectiveness) became

adopted in practice

As a political event, the Berlin Conference of

1884-1885 certainly initiated and facilitated the

numerous - negotiations and compromises

be-tween the colonial powers which led to the

dis-tribution of a great part of the world among them

without provoking a European - war

Protocoles let Acte general] de la Conference de

I' Afrique orientale reunie Ii Berlin, du 15 novembre

1884 au 26 fevrier, 1885, Martens NRG2, Vol 10,

M.F LINDLEY, The Acquisition and Government of

Backward Territory in International Law (1926, Repr

A ROEYKENS, La periode initiale de I'oeuvre africaine de

Uopold II, Nouvelles recherches et documents inedits

1875-1883 (1957)

J.-C ANDRE, L'evolution du statut des fleuves

inter-nationaux d' Afrique noire, Revue juridique et

poli-tique, Vol 19 (1965) 285-310

F BONTINCK, Aux origines de I'Etat independant du

Congo (1966) 215-297

M CAETANO, Portugal e a internacionaliza~ao dos

prob-lem~s africanos (4th ed 1971)

FRITZ MUNCH

BONA FIDES see Good Faith CIVIL WAR, AMERICAN see American Civil War

CIVIL WAR, SPANISH see Spanish Civil War

CLAUSULA REBUS SIC STANTIBUS

1 A Working Hypothesis - 2 The clausula and tomary International Law: (a) Pre-1914 State practice: (i) State practice (ii) Evaluation (b) State practice: 1919

Cus-to 1945 (c) Post-I945 State practice - 3 The clausula and the General Principles of Law - 4 The clausula and Treaty Law - 5 The clausula and the Subsidiary Sources

of Law: (a) Courts (b) International law doctrine 6 The

clausula in Perspective

The clausula originated in a Civilist maxim:

Conventio omnis intellegitur clausula rebus sic stantibus (every contract is to be understood as being based on the assumption of things remain-ing as they were, that is, at the time of its con-clusion)

1 A Working Hypothesis

In the - Vienna Convention on the Law of Treaties, the clausula has been incorporated in the section on termination and suspension of the operation of - treaties, under the heading of

"Fundamental changes of circumstances" (Art 62) Such a fundamental change must relate to circumstances existing at the time of the con-clusion of a treaty, which change was not then foreseen by the parties It may be invoked as a ground for terminating or withdrawing from the treaty or suspending its operation only if the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty, and if the effect of the change

is to transform radically the extent of obligations still to be performed under the treaty (- Trea-ties, Termination; - Treaties, Validity) Excluded are treaties regulating - boundaries and any fundamental change which is the result of

a breach by the party invoking it of an national obligation owed to any other party to the treaty

inter-A party invoking inter-Art 62 must do so by written

- notification of the other parties to the treaty and, in the absence of any objections from the other parties within, as a rule, three months, it

CLAUSULA REBUS SIC STANTIBUS 23

may carry out its contemplated measure of

sus-pension, termination or withdrawal

If another party raises objections, the parties

are bound to seek a solution by one of the eight

peaceful means provided in Art 33 of the

- United Nations Charter (- Peaceful

Settle-ment of Disputes) If no solution has been

reached within 12 months of the objection being

raised, any of the parties to a dispute on the

application or interpretation of Art 62 may set in

motion an obligatory procedure of conciliation

under the Vienna Convention (- Conciliation

and Mediation) Reports of the conciliation

commissions are not binding on the parties Thus,

unless consensus is reached, the legal position of

an unresolved disagreement remains in the end

where it stood in unorganized and partly

organized international society before World War

I

In assessing the declaratory or constitutive

character of this attempt at the codification or

development of the clausula (- Codification of

International Law), it is advisable to bear in mind

its compromise character, the modest number of

parties bound by the Convention, relevant

reser-vations (- Treaties, Reserreser-vations) and the calibre

and high legal reputation of some of the

non-parties Thus, it would be unsafe at this point to

treat Art 62 and its complementary provisions

as more than a heuristic description of the

prob-lem to be explored: the place, if any, of the

asserted rule behind the clausula maxim in

in-ternational law

In accordance with Art 38 of the Statutes of

the - Permanent Court of International Justice

and the - International Court of Justice, three

primary - sources of international law call for

attention: - customary international law, the

- general principles of law recognized by

civil-ized nations and treaties In so far as the requisite

evidence is concerned, Art 38 again shows the

way: in addition to State practice, judicial

decisions and international law doctrine provide

subsidiary means for determining the issues to be

examined

2 The clausula and Customary

International Law

In considering claims made for the clausula to

reception in international customary law, it is

advisable to bear in mind from the outset that

customary international law requires more than a

"general practice" The practice must be cepted as law" (PCIJ and IC] Statutes, Art 38)

"ac-(a) Pre-1914 State practice

Diplomatic practice at the level of unorganized and partly organized international society offers three reasonably well-documented and articulate instances of argumentation with the clausula The

first examp!(' concerns the 1585 Anglo-Dutch Convention Based on Camden's Annals (1585,

1595 and 1598), Richard Zouche inquired in his luris Indieii Feciales (1650) "whether a prince who has promised help is bound to supply it when

he cannot do so conveniently" Under the 1585 Convention of Military Assistance and Subsidy between Elizabeth I of England and the United States of the Netherlands, the Queen's obligations were incurred for the duration of the Dutch-Spanish War and, as security, the Queen received territorial pledges from the Netherlands In 1595, Queen Elizabeth pointed out that England was drained of men and resources by the long war and demanded to be relieved of the expenses for the troops, and to be repaid part of her subsidies While the Netherlands were prepared to make some repayments they emphasized that no refund was due until the end of the war In the Queen's view, fortified by "the opinions of jurists and statesmen", conventions "must be understood to hold only while things remain in the same state; that a man is more strongly bound to his country than to a private promise, and that princes are not bound by their contract when the contract results

in public injury" As the Estates-General were

"afraid to anger so mighty a princess", they agreed to relieve her as soon as possible from all the expense which she was incurring on the English auxiliaries and repay for some years substantial amounts of their debt

The second example concerns the Russian denunciation, in 1870, of the so-called "Black Sea Clauses" contained in Arts 11, 13 and 14 of the

1856 Paris Peace Treaty (-+ Crimean War and Paris Peace Treaty) These articles provided for the -+ neutralization of the -+ Black Sea and the non-maintenance by Russia and the Ottoman Empire of military-naval arsenals, and they defined the maximal strength of Russian and

24 CLAUSULA REBUS SIC STANTIBUS

Ottoman naval forces in the Black Sea Russia

denounced these provisions on the grounds of

alleged breaches of the Treaty by some of the

other parties, changes since 1856 in the European

equilibrium ( -+ Balance of Power), and the

requirement of Russian security and dignity

In the subsequent diplomatic correspondence,

Austria and Italy did not challenge Russia's

reli-ance on the clausula They merely questioned its

relevance in the particular case In contrast, the

British Government based its negative view on

the sanctity of treaties and the consequent need

for concurrence in any change by all the

contract-ing parties

At the first meeting of the 1871 London

Con-ference (January 17, 1871), all the participants,

including Russia, signed a Protocol embodying

the British thesis as an essential principle of

in-ternational law Yet, on the understanding that in

future the revision or abrogation of multilateral

treaties was to depend on the consent of all

contracting parties, the other Powers represented

at the London Conference agreed to a revision of

the three articles of the 1856 Peace Treaty

( -+ Treaties, Multilateral) The changes were

in-corporated in the Treaty of March 13, 1871,

entit-led Treaty for the Revision of Certain Stipulations

of the Treaties of March 30, 1856, the three

disputed articles being replaced by Art II of the

1871 Treaty

The third example concerns the -+ annexation

of Bosnia-Herzegovina in 1907 Under Art 25 of

the 1878 Treaty of Berlin ( -+ Berlin Congress

(1878», the European Powers, including Turkey,

had agreed to the occupation and administration

by Austria-Hungary of the Turkish Provinces of

Bosnia and Herzegovina In 1907,

Austria-Hun-gary extended her sovereignty by unilateral action

to the two Provinces In subsequent diplomatic

negotiations, she relied as justification on radical

changes in circumstances in both Turkey and the

two Provinces

The need for upholding the binding force of

treaties, and for consultation with all other parties

to the 1878 Treaty, was maintained with varying

degrees of emphasis by Great Britain, France and

Russia Yet, in view of French and Russian

reluc-tance to make an issue of the Austrian action, the

idea of a conference was abandoned In a bilateral

agreement with Austria, Turkey consented to the

nullification of Art 25 of the 1878 Treaty and, by exchanges of diplomatic -+ notes, the other powers also assented to this arrangement

(ii) Evaluation

The Anglo-Dutch Convention of 1585 was a bilateral treaty of limited yet indefinite duration The only change in circumstances that had occur-red by 1595 was that the need for military assis-tance and subsidy, to which, under the Con-vention, the Estates-General were entitled, had lasted longer and become more onerous than had been contemplated at the time of the conclusion

of the Convention In short, one or both sides had been unduly optimistic regarding the chances of their common enterprise

Two features of the English argument are noteworthy: the matter-of-course reliance of lawyers in Doctors' Commons on the civil law tradition, and their acceptance of -+ self-preser-vation as a good reason for premature ter-mination of the Convention This English alter-native argument and the purely pragmatic reason given by the Estates-General to agree to the modification of the Convention reduce the significance of the illustration to that of a case of consensual treaty revision

In the context of Russia's denunciation of the

1856 Peace Treaty in 1870, four points deserve emphasis Firstly, the Treaty was intended to be disadvantageous to Russia as the defeated bel-ligerent Secondly, the common intention of the parties had been that the Treaty should be valid

"in perpetuity" (Art 11) and -like the vention between Russia and Turkey referred to in Art 14 - it should not be "annulled or modified without the assent of the Parties" (Art 14) Thirdly, the Articles denounced formed an in-tegral part of the "Public Law and System (Concert) of Europe" (Art 7) Finally, as in the negotiations on the revision of the 1585 Con-vention, the party requesting revision or ter-mination of the treaty linked the clausula

Con-argument to reasons of a, more openly political character and, in this case, also to assertions of minor breaches of the Treaty by some of the other parties, entitling Russia to its termination

In the end, the principle of the sanctity of treaties

on which the 1856 international quasi-order rested was reaffirmed with Russian concurrence, and the