| |
|
 |
|
 |
|
 |
|
 |
|
  |
|
 |
|
  |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
The Opinions of Judge Dionisio Anzilotti at the Permanent Court of International Justice
II. General Rules of Law
A. International Law and Municipal Law
In 1905, Anzilotti published his famous work Il diritto internazionale nei giudizi interni, wherein he developed his dualistic conception of the relationship between international law and municipal law, a conception to which he remained faithful throughout his life.3
In 1935, in the Advisory Opinion on the Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Anzilotti began by mentioning the position of municipal law in relation to the sources of law to be applied by the Court, in accordance with its famous Article 38. There, he stated that
The question submitted to the Court is one purely of Danzig constitutional law; international law does not come into it at all. It neither is nor can be disputed, however, that the Court has been created to administer international law. Article 38 of the Statute, which states the sources of law to be applied by the Court, only mentions international treaties or custom and the elements subsidiary to these two sources, to be applied if both of them are lacking. It follows that the Court is reputed to know international law; but it is not reputed to know the domestic law of the different countries.
Of course the Court may have - and has often had - to decide as to the meaning and scope of a municipal law; it has even laid down in this connection some very important principles to which I will revert later. It has however done so only if and in so far as this is necessary for the settlement of international disputes, or in order to answer questions of international law. The interpretation of a municipal law as such and apart from any question or dispute of an international character is no part of the Court's functions: it is fitted neither by its organization nor by its composition to undertake this; its authority and prestige have nothing to gain therefrom.4
Then, in a subsequent paragraph, he refers to a much-quoted decision by the Court which has been interpreted by several writers as constituting the core of the dualistic doctrine, a position which they also believe was endorsed by the Court as a whole from 1926 onwards, under Anzilotti's influence. In that paragraph he held that
It should be observed, in regard to this matter, that the Court, in performing its function as an organ of international law, may have to consider municipal laws from two entirely distinct stand-points.
In the first place, it may have to examine municipal laws from the stand-point of their consistency with international law. The Court has sovereign power of adjudication on this point: `from the stand-point of international law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures'.5
Secondly, the Court may find it necessary to interpret a municipal law, quite apart from any question of its consistency or inconsistency with international law, simply as a law which governs certain facts, the legal import of which the Court is called upon to appraise.6
Related to this issue is a portion of Anzilotti's 1939 opinion in The Electricity Company of Sofia and Bulgaria. There, he dealt with the problem faced by the Court when there are two sources of jurisdiction. The manner in which Anzilotti presents the question reflects his dualist approach, for by referring to `the same legal system', he presupposes that there might possibly exist several different legal systems, contrary to the monist position. According to Anzilotti,
It follows that there are or may be cases where recourse to the Court is permitted by the Treaty but not by the Declarations, and cases where recourse to the Court is possible under the Declarations, but not under the Treaty.
It is clear that, in the same legal system, there cannot at the same time exist two rules relating to the same facts and attaching to these facts contradictory consequences. It is for instance impossible that the relations between two States should be governed at one and the same time by a rule to the effect that, if certain conditions are fulfilled, the Court has jurisdiction and by another rule laying down that, if the same conditions are fulfilled, the Court has no jurisdiction - by a rule to the effect that in certain circumstances the State concerned may have recourse to the Court and by another to the effect that in the same circumstances the State has no right to do so, etc., etc. In cases of this kind, either the contradiction is only apparent and the two rules are really coordinated so that each has its own sphere of application and does not encroach on the sphere of application of the other, or else one prevails over the other, i.e., is applicable to the exclusion of the other. I know of no clearer, more certain, or more universally accepted principle than this.
To decide whether a contradiction between two rules is only apparent and how they should be co-related to one another, or to determine which of two contradictory rules applies to the exclusion of the other, is among the most important and most difficult tasks in the interpretation of legal texts. It is precisely this task which confronts the Court in the present case.7
B. General Principles of Law
General principles of law were mentioned in Article 38 of the Statute of the Court, in order to avoid a situation where the Court could declare a non liquet. Anzilotti invoked some of those general principles in several opinions.
In the judgment on the Legal Status of Eastern Greenland, rendered in 1933, whereby the Court rejected a Norwegian claim, Anzilotti stated his position in succinct language which serves as a typical example of his style. There, in two lines, he set forth a general principle deriving from pure logic, saying that `This claim should in my view, be rejected, for an unlawful act cannot serve as a basis for an action in law'.8 In that same case, Anzilotti also very briefly stated the principle of the precedence of special law over general law:
8. It is consequently on the basis of that agreement which, as between the Parties, has precedence over general law, that the dispute ought to have been decided.9
As for principles of civil procedure as general principles of law, Anzilotti applied them in relation to res judicata. In the 1927 judgment, Interpretation of Judgments No. 7 and 8 concerning the case of the Factory of Chorzow, he made clear reference to the invocation of these principles, as follows:
7. In coming to this conclusion I have relied upon principles obtaining in civil procedure; this I feel justified in doing for the following reasons:
As I have already observed, the Court's Statute, in Article 59, clearly refers to a traditional and generally accepted theory in regard to the material limits of res judicata; it was only natural therefore to keep to the essential factors and fundamental data of that theory, failing any indication to the contrary, which I find nowhere, either in the Statute itself or in international law.
In the second place, it appears to me that if there be a case in which it is legitimate to have recourse, in the absence of conventions and custom, to `the general principles of law recognized by civilized nations', mentioned in No. 3 of Article 38 of the Statute, that case is assuredly the present one. Not without reason was the binding effect of res judicata expressly mentioned by the Committee of Jurists entrusted with the preparation of a plan for the establishment of a Permanent Court of International Justice, amongst the principles included in the above-mentioned article (Minutes, p. 335).10
In that same judgment, Anzilotti clarified in one sentence the objective limits of res judicata. There he declared:
4. It is a well-known principle that the objective limits of res judicata are determined by the claim.11
Then, in that same case, he circumscribed the effect of the principle of res judicata on decisions on incidental or preliminary questions, adding that:
It is, moreover, clear that, under a generally accepted rule which is derived from the very conception of res judicata, decisions on incidental or preliminary questions which have been rendered with the sole object of adjudicating upon the Parties' claims (incidenter tantum) are not binding in another case.12
Another example of Anzilotti's invocation of general principles of law is his reference to the expression inadimplenti non est adimplendum, in his dissenting opinion to the 1932 judgment in the Case concerning diversion of water from the Meuse. There, he expresses the view that
As regards the first point, I am convinced that the principle underlying this submission (inadimplenti non est adimplendum) is so just, so equitable, so universally recognized, that it must be applied in international relations also. In any case, it is one of these `general principles of law recognized by civilized nations' which the Court applies in virtue of Article 38 of its Statute.13
C. Equity and Law
These two concepts, equity and law, have always been among the most fundamental subjects of reflection by lawyers and philosophers. It is well-known that Anzilotti belonged to the positivist school of juridical thought. However, in his 1937 opinion in the case of the Lighthouses in Crete and Samos, he made certain interesting observations, whereby he endeavoured to reconcile equity and law without departing from his positivist approach. In that case, he stated that:
9. The conclusion to which I have been led may appear to be very rigorous, since it makes the obligation of Greece to respect the lighthouse concession dependent upon the approval of the Turkish Parliament, an approval which that body - so the Court was informed - was never known to refuse. I do not deny that it is so, but I desire to add the following remarks.
This is manifestly a consideration founded rather upon equity than upon law; for it is certain that, in law, the Turkish Parliament was perfectly free to give, or to withhold, its approval. But, in the sphere of equity, there are other considerations that come into play, and restrain the effect of that which has been set forth above.
The whole of Protocol XII is of an exceptional character; but nowhere is that character so clearly revealed as in Article 9, which accords separate treatment to the Powers - whom it only obliges to respect concessions granted by Turkey before the War - and to the Balkan States - whom it obliges to respect even concessions granted during the War and until the coming into force of the Treaty of Peace. That being so, a strict application of the conditions governing the subrogation referred to in Article 9 is not only in harmony with the rules for the interpretation of texts, but also in conformity with the requirements of equity.14
D. Interpretation of Treaties
Anzilotti expressed his views on this subject on several occasions, which was natural due to the fact that the interpretation of agreements constitutes an everyday part of life for an international jurist. With his usual power of synthesis, he set forth his opinions in very simple and straight-forward language. It is worthwhile to give here some examples of the degree to which his terminology influenced the rules of interpretation later enshrined in Article 31 of the Vienna Convention on the Law of Treaties.
In the 1931 Advisory Opinion on the Customs Union between Germany and Austria, Anzilotti summarized in two short paragraphs certain basic rules for the interpretation of treaties:
(b) It is a fundamental rule of interpretation that words must be given the ordinary meaning which they bear in their context unless such an interpretation leads to unreasonable or absurd results.15
The Austro-German argument really deprives the second sentence of all importance, and thus it runs counter to a fundamental rule in the interpretation of legal texts according to which, when there are two interpretations, one of them attributing a reasonable meaning to each part of the text and the other not fulfilling these conditions, the first must be preferred.16
Anzilotti employed the same language in The Legal Status of Eastern Greenland, where he remarked in 1933:
I am therefore of the opinion that, if one reads the documents as they stand, giving the words the sense which they naturally bear in the context, one is inevitably led to the conclusion that the Danish Government was making a distinction between the colonized districts of Greenland and the other parts of the country, and that what it was requesting from the States whom it approached was, not the recognition of an already existing sovereignty, but the recognition of the right to extend its sovereignty to the whole of Greenland.17
In that same judgment, he added the following comment in relation to literal interpretation:
It remains to be seen whether this conclusion is inexplicable or inconsistent, having regard to the position of Denmark in Greenland at the moment when the overtures were made. It is in this connection that the historical question of Danish sovereignty in Greenland arises in the present suit: a literal interpretation fails where it would lead to absurd or inconsistent results.18
In 1937, Anzilotti expanded upon his idea as expressed in the final part of the preceding quotation, when he affirmed as follows, in his opinion in the Case concerning diversion of water from the Meuse:
But it is always dangerous to be guided by the literal sense of the words before one is clear as to the object and intent of the Treaty; for it is only in this Treaty, and with reference to this Treaty, that these words - which have no value except in so far as they express the intention of the Parties - assume their true significance.19
Although not in such precise language, the same ideas had already been stated by Anzilotti in 1923, in the case S.S. Wimbledon, when he said:
3. It must in the first place be observed that, for the purposes of the interpretation of contracts which take the form of international conventions, account must be taken of the complexity of interstate relations and of the fact that the contracting parties are independent political entities. Though it is true that when the wording of a treaty is clear its literal meaning must be accepted as it stands, without limitation or extension, it is equally true that the words have no value except in so far as they express an idea; but it must not be presumed that the intention was to express an idea which leads to contradictory or impossible consequences or which, in the circumstances, must be regarded as going beyond the intention of the parties. The purely grammatical interpretation of every contract, and more especially of international treaties, must stop at this point.20
Similar statements may be found in Anzilotti's opinions in the Advisory Opinion of 1932 on the Interpretation of the Convention of 1919 concerning the employment of women during the Night21 and in the judgment of 1934 in the Lighthouses case.22
Anzilotti also referred in several instances to the function of travaux préparatoires in the interpretation of treaties. In the Advisory Opinion on the Interpretation of the Convention of 1919 concerning employment of women during the Night, he said:
If however any doubt were possible, it would be necessary to refer to the preparatory work, which, in such case, would be adduced not to extend or limit the scope of a text clear in itself, but to verify the existence of an intention not necessarily emerging from the text but likewise not necessarily excluded by that text.23
Also in relation to the interpretation of treaties, in 1939 in the case The Electricity Company of Sofia and Bulgaria, Anzilotti stated in the following terms the rule that the treaty which is later in time should prevail :
4. The Treaty being of later date than the Declarations, it is in the text of the former that we must seek the intention of the Parties in regard to rules previously in force.24
E. Oral Agreements and the Power of Foreign Ministers to Engage the State
Article 38 of the Statute of the Permanent Court, as well as of the International Court of Justice, established international conventions as the first source of international law to be applied by the Court. Normally, of course, international conventions are written agreements, but on some important occasions agreements have been concluded orally. Anzilotti referred to this situation in the case of the Legal Status of Eastern Greenland, in 1933. He said:
7. The outcome of all this is therefore an agreement, concluded between the Danish Minister at Christiania, on behalf of the Danish Government, and the Norwegian Minister for Foreign Affairs, on behalf of the Norwegian Government, by means of purely verbal declarations.
Moreover, there does not seem to be any rule of international law requiring that agreements of this kind must necessarily be in writing, in order to be valid.25
In the same case and in relation to the famous Ihlen Declaration, Anzilotti presented his point of view on a very practical subject, the power of a foreign minister to engage the responsibility of his state. The first paragraph of the quotation below is a clear and succinct statement of the law on the subject; the second paragraph refers to the rule that prohibits a state from invoking its internal laws to avoid the fulfillment of its international obligations. Anzilotti stated:
No arbitral or judicial decision relating to the international competence of a Minister for Foreign Affairs has been brought to the knowledge of the Court; nor has this question been exhaustively treated by legal authorities. In my opinion, it must be recognized that the constant and general practice of States has been to invest the Minister for Foreign Affairs - the direct agent of the chief of the State - with authority to make statements on current affairs to foreign diplomatic representatives, and in particular to inform them as to the attitude which the government, in whose name he speaks, will adopt in a given question. Declarations of this kind are binding upon the State.
As regards the question whether Norwegian constitutional law authorized the Minister for Foreign Affairs to make the declaration, that is a point which, in my opinion, does not concern the Danish Government: it was M. Ihlen's duty to refrain from giving his reply until he had obtained any assent that might be requisite under the Norwegian laws.26
F. Circumstances Excusing a State from the Fulfillment of International Obligations
Anzilotti referred on several occasions to some of the causes that could excuse a state from the fulfillment of its international obligations.
In the Oscar Chinn case, in 1934, between the United Kingdom and Belgium, Anzilotti dealt with the invocation of public interests and public necessity, which are two germane, but different concepts. As to the first, he said:
6. If, assuming the facts alleged by the Government of the United Kingdom to have been duly established, the measures adopted by the Belgian Government were contrary to the Convention of Saint-Germain, the circumstance that these measures were taken to meet the dangers of the economic depression cannot be admitted to consideration. It is clear that international law would be merely an empty phrase if it sufficed for a State to invoke the public interest in order to evade the fulfilment of its engagements.27
Regarding the recourse to public necessity, he added:
7. The situation would have been entirely different if the Belgian Government had been acting under the law of necessity, since necessity may excuse the non-observation of international obligations.
The question whether the Belgian Government was acting, as the saying is, under the law of necessity is an issue of fact which would have had to be raised, if need be, and proved by the Belgian Government. I do not believe that that Government meant to raise the plea of necessity, if the Court had found that the measures were unlawful; it merely represented that the measures were taken for grave reasons of public interest in order to save the colony from the disastrous consequences of the collapse in prices.28
No one can, or does, dispute that it rested with the Belgian Government to say what were the measures best adapted to overcome the crisis: provided always that the measures selected were not inconsistent with its international obligations, for the Government's freedom of choice was indisputably limited by the duty of observing those obligations. On the other hand, the existence of that freedom is incompatible with the plea of necessity which, by definition, implies the impossibility of proceeding by any other method than the one contrary to law.29
In the case The Electricity Company of Sofia and Bulgaria, Anzilotti made some observations on the concept of force majeure and the theory of abuse of rights. On the first he said:
(b) The second argument, namely, that the denunciation of the Treaty by the Bulgarian Government released the Belgian Government from the duty of awaiting the result of the recourse to cassation, is based mainly upon the consideration that, since the Treaty was about to expire, it became impossible to submit the Application.
This argument seems to me no better founded than the first argument. If the Bulgarian Government had the right to denounce the Treaty, it was perfectly natural that the Belgian Government should be rendered incapable of benefiting by it. It is impossible to describe as force majeure what was really only a consequence of the exercise by the Bulgarian Government of its right of denunciation.30
On the abuse of rights he understandably took a very cautious position, as follows:
True, the representatives of the Belgian Government alluded cautiously to an abuse of right said to have been committed by the Bulgarian Government when it denounced the Treaty in order to remove from the jurisdiction of this Court the case which the Belgian Government was proposing to submit.
The theory of abuse of right is an extremely delicate one, and I should hesitate long before applying it to such a question as the compulsory jurisdiction of the Court. The old rule, a rule in such complete harmony with the spirit of international law, Qui iure suo utitur neminem laedit, would seem peculiarly applicable. The Bulgarian Government was entitled to denounce the Treaty and was sole judge of the expediency or necessity of doing so.31
Another issue that Anzilotti analyzed was that of excusable error in the performance of international obligations. In the case Legal Status of Eastern Greenland, he made the following comments on this important point:
If a mistake is pleaded it must be of an excusable character; and one can scarcely believe that a government could be ignorant of the legitimate consequences following upon an extension of sovereignty; I would add that, of all the governments in the world, that of Norway was the least likely to be ignorant of the Danish methods of administration in Greenland, or of the part played therein by the monopoly system and the regime of exclusion.32
G. Sovereignty and Right of Self-Government
In 1931, the Council of the League of Nations requested an Advisory Opinion from the Permanent Court on whether a customs union established between Germany and Austria in the Protocol of Vienna of 1931 would be compatible with Article 88 of the Treaty of Saint-Germain and with Protocol I of Geneva, signed in 1922, in which Austria undertook not to alienate its independence. In a separate opinion Anzilotti made some interesting comments about the concepts of independence and sovereignty, which he rightly considered to be synonyms. He said in the Advisory Opinion on the Customs Union between Germany and Austria:
Independence as thus understood is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law.
The conception of independence, regarded as the normal characteristic of States as subjects of international law, cannot be better defined than by comparing it with the exceptional and, to some extent, abnormal class of States known as `dependent States'. These are States subject to the authority of one or more other States. The idea of dependence therefore necessarily implies a relation between a superior State (suzerain, protector, etc.) and an inferior or subject State (vassal, protege, etc.); the relation between the State which can legally impose its will and the State which is legally compelled to submit to that will. Where there is no such relation of superiority and subordination, it is impossible to speak of dependence within the meaning of international law.
It follows that the legal conception of independence has nothing to do with a State's subordination to international law or with the numerous and constantly increasing states of de facto dependence which characterize the relation of one country to other countries.
It also follows that the restrictions upon a State's liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these restrictions do not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be.33
According to ordinary international law, every country is free to renounce its independence and even its existence; this rule does not apply to Austria who, under Article 88, cannot voluntarily lose her independence, still less therefore her existence, except with the consent of the Council of the League of Nations.
Similarly, according to ordinary international law, each country must respect the independence of other countries, but it is not forbidden to agree to another State's voluntarily renouncing its independence in its favour. This is not allowed in the case of Austria, as regards the signatory States to the Treaty of Saint-Germain, except of course with the consent of the Council of the League of Nations.34
The right of self-government was very much in the minds of the drafters of the Treaty of Versailles and the Covenant of the League of Nations, which was a part of the Treaty. In the Advisory Opinion on the Free City of Danzig and the ILO Anzilotti described this right:
Now what distinguishes Dominions and Colonies which are fully self-governing from states is, above all, the fact that such Dominions and Colonies, though enjoying a very wide measure of self-government, do not or do not necessarily possess the right themselves to conduct their foreign relations. The right of self-government which Article I of the Covenant considers as a condition necessary for admission to the League of Nations and on which Article 421, paragraph 1, of the Treaty of Versailles is based, can therefore only be a right relating to internal affairs, for otherwise the interpretation of this article would lead to absurd or contradictory results.35
H. Occupation
Occupation as a means of acquiring territory was the main problem discussed in the case of the Legal Status of Eastern Greenland, in 1933. Denmark brought an action against Norway, relating to a Resolution of 1931 by which Norway announced her occupation of certain territories in Eastern Greenland, over which Denmark claimed to have sovereignty.
Anzilotti's opinion dealt with this subject in a rather detailed fashion. He considered, first, the animus possidendi as follows:
Again, this historic claim manifests itself in legislation or in treaties relating to Greenland as a whole. The animus possidendi, of which so much has been said in these proceedings, is, at bottom, nothing else than the old claim on the basis of which, first the kings of Denmark and Norway and later the kings of Denmark, did not hesitate to act as sovereigns of Greenland when opportunity offered itself.36
He then analyzed the requirement, according to contemporary international law, of effective exercise of sovereignty over a territory as the basis of title. He said:
Historic claims to dominion over whole regions - claims which had, formerly, played an important part in the allocation of territorial sovereignty - lost weight and were gradually abandoned even by the States which had relied upon them. International law established an ever closer connection between the existence of sovereignty and the effective exercise thereof, and States successfully disputed any claim not accompanied by such exercise.37
Then he clarified, in my opinion correctly, the relationship between the concepts of possession and occupation. He explained:
But in that case it is a question of the occupation of a terra nullius. To say that the title resides in possession and not in occupation is a verbal quibble, for possession of a territory which formerly belonged neither to the State possessing it nor to any other State is nothing else than occupation considered at a moment subsequent to the original act of occupying.
In short, either the so-called second colonization is the manifestation of a pre-existing sovereignty and the title to this sovereignty must be established and shown to be valid; or else Greenland, in 1721, was a terra nullius and we have before us an occupation which must be appraised in accordance with the rules governing occupation.38
I. The Laws of Neutrality and War
In its 1923 judgment in S.S. Wimbledon, a case brought by the United Kingdom, France, Italy, Japan, and Poland against Germany, the Permanent Court had to decide several issues concerning the laws of war and neutrality. This was the first inter-state dispute submitted to the Court, as well as the first judgment delivered by it.
The British S.S. Wimbledon, chartered by a French company and carrying a cargo of munitions to Danzig consigned to Poland, was refused access to the Kiel Canal by the German authorities acting under German neutrality regulations. At that time, Poland was at war with the Soviet Union. According to Article 380 of the Treaty of Versailles, the Kiel Canal was to be maintained free and open to vessels of commerce and war of all nations at peace with Germany on terms of complete equality.
The Court decided that Germany was wrong in refusing passage to the S.S. Wimbledon and was therefore liable for the prejudice sustained, which was evaluated at 140,000 francs.
Judge Anzilotti, together with Judge Max Huber, submitted a joint dissenting opinion. They stated:
In this respect, it must be remembered that international conventions and more particularly those relating to commerce and communications are generally concluded having regard to normal peace conditions. If, as a result of a war, a neutral or belligerent State is faced with the necessity of taking extraordinary measures temporarily affecting the application of such conventions in order to protect its neutrality or for the purposes of national defence, it is entitled to do so even if no express reservations are made in the convention.
At this point, it must be stated that a State may enter into engagements affecting its freedom of action as regards wars between third States. But engagements of this kind, having regard to the gravity of the consequences which may ensue, can never be assumed; they must always result from provisions expressly contemplating the situations arising out of a war. The right of a State to adopt the course which it considers best suited to the exigencies of its security and to the maintenance of its integrity, is so essential a right that, in case of doubt, treaty stipulations cannot be interpreted as limiting it, even though these stipulations do not conflict with such an interpretation.
This consideration applies with particular force in the case of perpetual provisions without reciprocity which affect the interests of third States.39
Later on, they added on the same question:
7. The conclusion, therefore, which appears to follow from the foregoing considerations is that the obligations undertaken by Germany to maintain the Kiel Canal free and open to vessels of nations at peace with her does not exclude her right to take the measures necessary to protect her interests as a belligerent or neutral power. This does not mean that the Canal is not also free in time of war, but this freedom will then necessarily be limited either by the exigencies of national defence, if Germany is a belligerent, or, if she is neutral, by the measures - differing according to circumstances - which she may take. This principle corresponds exactly to the rule already mentioned which was adopted in the Barcelona Conventions. The legal status of the Kiel Canal, therefore, resembles that of the internal navigable waterways of international concern.40
The judges referred also in this dissenting opinion to contraband of war. They commented:
It is not disputed that present international law allows neutrals the option of suppressing or tolerating in their territory commerce in and transport of contraband, and more especially of arms and munitions. Again the transport of such commodities, even under a neutral flag, is not protected against a belligerent, and the latter is entitled, in certain conditions, to confiscate as a penalty even the neutral vessel and that part of its cargo which is not contraband. This is explained by the fact that commerce in and transport of contraband, although not necessarily affecting the neutrality of States, is regarded under the law of nations as unlawful because it assumes the guise of peaceful commerce for warlike purposes. This idea seems to acquire still greater force when considered in the light of the Covenant of the League of Nations, and more especially of its Articles 8 and 23 paragraph (d).41
3 See the contribution by Gaja in this issue, p. 123.
5 Judgment No. 7 - Case concerning certain German interests in Polish Upper Silesia, 19.
© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part
of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European
Law at the European University
Institute.
This file was last modified:
Monday, August 02, 1999 02:30PM