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The decision of Judge Mayer, while acquitting the Cunard Company for liability for loss of life and property in consequence of the sinking of the Lusitania, also implies that reparation can and should later be demanded from the German Government.
G. G. W.
LEGAL STATUS OF THE BREST-LITOVSK AND BUCHAREST TREATIES IN THE
LIGHT OF RECENT DISCLOSURES AND OF INTERNATIONAL LAW.
Recent disclosures as to the manner in which the Brest-Litovsk and Bucharest Treaties were negotiated, the notorious character of some of the negotiators, and the corrupt nature of the means employed by the German Government in influencing the negotiations, have thrown a flood of light upon these transactions. They have suggested that an examination of the legal status of these treaties in the light of such disclosures and of international law would not be without interest at this time.
The authorities are, in general, agreed that in order that a treaty may be regarded as legally valid, the following conditions must be observed :
1. There must be capacity to contract. The "High Contracting Parties" must be capable of contracting, i.e., they must be in possession of the necessary rights and powers. Thus, a fully sovereign state has full capacity to enter into contracts with other fully sovereign states, and a part or semi-sovereign state has such measure of contracting power as has been retained by or conferred upon it.
2. The negotiators of the treaty must have full powers from their government. They must not act in excess of their powers, or their government is not bound.
3. The treaty must, in a general way, be in conformity with, or at least not in direct violation, of the rules, principles and customs of international law. Thus, a treaty would clearly not be binding which had as one of its objects the subjugation or partition of a country, asserted a proprietary right over a portion of the open sea, or stipulated for the establishment of piracy, privateering or the slave trade.
4. There must be freedom of consent on the part of the contracting states and of their agents or negotiators. But in our interpretation of the phrase "freedom of consent,” we should not forget that, as stated by one of our greatest authorities,
In international law force and intimidation are permitted means of obtaining redress for wrongs, and it is impossible to look upon permitted means as vitiating the agreement made in consequence of their use, by which redress is provided for. Consent, therefore, is conceived to be freely given in international contracts, notwithstanding that it may have been obtained by force, so long as nothing more is exacted than it may be supposed a state would consent to give, if it were willing to afford compensation for past wrongs and security against the commission of wrongful acts. And as international law cannot measure what is due in a given case, or what is necessary for the protection of a state which declares itself to be in danger, it regards all compacts as valid, notwithstanding the use of force or intimidation, which do not destroy the independence of the state which has been obliged to enter into them. When this point, however, is passed constraint vitiates the agreement, because it cannot be supposed that a state would voluntarily commit suicide by way of reparation or as a measure of protection to another.1
However, as stated by the same authority,
Violence or intimidation used against the person of a sovereign, of a commander, or of any negotiator invested with powers to bind his state, stands upon a different footing. There is no necessary correspondence between the amount of constraint put upon the individual, and the degree to which one state lies at the mercy of the other, and, as in the case of Ferdinand VII at Bayonne, concessions may be extorted which are wholly unjustified by the general relations between the countries. Accordingly all contracts are void which are made under the influence of personal fear.
Freedom of consent does not exist where the consent is determined by erroneous impressions produced through the fraud of the other party to the contract. When this occurs, therefore;—if, for example, in negotiations for a boundary treaty the consent of one of the parties to the adoption of a particular line is determined by the production of a forged map, the agreement is not obligatory upon the deceived party.2
Writing of the effect of duress on treaties, T. J. Lawrence observes :
The only kind of duress which justifies a breach of treaty is the coercion of a sovereign or plenipotentiary to such an extent as to induce him to enter into arrangements which he would never have made but for fear on account of his personal safety. Such was the renunciation of the Spanish crown extorted by Napoleon at Bayonne in 1907 from Charles IV and his son Ferdinand. The people of Spain broke no faith when they refused to be bound by it and rose in insurrection against Joseph Bonaparte, who had been placed upon the throne.3
1 Hall, A Treatise on Int. Law (7th ed., 1917), § 108, p. 336.
2 Ibid. In favor of this view Hall cites Heffter, § 85; Kluber, § 143, and Bluntschli, $$ 408-9.
Oppenheim furnishes us with the following explanation of the meaning of the phrase "freedom of action” as applied to treaties :
The phrase "freedom of action” applies only to the representatives of the contracting states. It is their freedom of action in consenting to a treaty which must not have been interfered with and which must not have been excluded by other causes. A treaty concluded through intimidation exercised against the representatives of either party or concluded by intoxicated or insane representatives is not binding upon the party so represented. But a state which was forced by circumstances to conclude a treaty containing humiliating terms has no right afterwards to shake off the obligations of such a treaty on the ground that its freedom of action was interfered with at the time.4
Speaking of the effects of error and fraud, Oppenheim says:
Although a treaty was concluded with the real consent of the parties, it is nevertheless not binding if the consent was given in error, or under a delusion produced by a fraud of the other contracting party. If, for instance, a boundary treaty was based upon an incorrect map or a map fraudulently altered by one of the parties, such a treaty would by no means be binding. Although there is freedom of action in such cases, consent has been given under circumstances which prevent the treaty from being binding.5
In his discussion of this subject, Westlake remarks that the rule that a contract is vitiated by fraud applies, subject to the observation that some latitude must be allowed in negotiating treaties of peace to the right of misleading an adversary which is incident to war. One who while the negotiation continues is still an enemy cannot be expected to abstain from mis-statements bearing on his probable means of victory, which he was entitled to employ yesterday, and which, if the negotiation fails, he may find it necessary to repeat tomorrow. But states at peacc are subject as moral beings to the duty of truth, and there are frauds which could not be tolerated even between states at war, such as the production of forged maps on questions of boundary.
Even a cursory examination of the texts of these treaties in the imperfect form in which they are accessible to students would prove that several of the principles above stated have been grossly violated. A consideration of the circumstances under which they appear to have been made, and the methods apparently employed in their making, would show that they were tainted with fraud and illegality of all sorts. Without going into details, it appears that the leading Russian negotiators were in the pay of the German Government and acting, in part at least, as its agents.
3 Lawrence, Principles of Int. Law (4th ed.), § 134, p. 327. 4 Oppenheim, Int. Law, I, Peace, § 499. 5 Ibid., § 500. 6 Westlake, I, Peace (2d ed.), p. 290. The italics are ours.
While, as pointed out by Westlake in the passage cited above, a certain amount of misrepresentation in the negotiation of a treaty of peace might be expected in an adversary anxious to conceal the actual facts bearing upon his fighting strength, such toleration should certainly not extend to acts of bribery and treachery. May we not also say that treaties which in almost every article violate the fundamental principle upon which they were avowedly based—namely, that of self-determination without annexation or indemnities—are by that very fact alone rendered invalid?
These treaties might also be invalidated on the ground that they virtually destroy the political and economic independence of the States—Russia, Roumania and the Ukraine—with which they were negotiated and which they pretend to recognize as equals. With one hand they take away what they profess to give with another, and leave nothing but the shadow or shell of political independence. Thus, by the Roumanian Peace or the Treaties of Bucharest, which may be regarded as “model” treaties of this kind, the Central Powers have attempted to establish a permanent control over the main industries of Roumania. This unfortunate country is forced to sell, at prices to be determined by a “mixed commission,” all its surplus of grain, poultry, cattle, wool, fruit, wine, etc., for a period of seven years after 1919 as well as during the years 1918 and 1919.
The Central Powers also attempted to establish and maintain a complete control over the production and exportation of petroleum. All foreign oil companies are to be expropriated and the Roumanian Government is forced to grant for a term of thirty years to a German-Austrian Company, known as the Oil-Lands Leasehold Company, Limited, the "exclusive right to exploit all the Roumanian Crownlands . . . for the prospecting, for the extraction and manufacture of mineral oils, natural gas, mineral wax, asphalt, and any other bituminous products.” This company is granted all manner of rights and privileges, such as the use of public roads, waterways, etc., exemptions from taxation, and the use of the state forests for lumber.
The same or similar rights and privileges in respect to crude oil and natural gas generally are granted to an Austro-German corporation known as the Commercial Monopoly Company.
In passing, we may simply note that the “Navigation Agreement" is in evident violation of the rights and privileges of the other European Powers on the Danube River.
The same or similar control as that exercised over oils, minerals and natural gas is asserted over and applied to all important industries, ways of communication, etc. In brief, by these treaties it was obviously intended to give Germany a complete strangle-hold on Roumania and reduce her to a complete state of political as well as economic dependence. Roumania was to be bound hand and foot to Austria-Germany.
The Brest-Litovsk and supplementary treaties with Russia may be pronounced invalid on similar grounds. They were signed under military or official pressure and reduced the Bolshevik Government to a state of economic and political impotence. Besides, they were negotiated with men who, whatever their intentions or motives may have been, were not free to act as representatives of the state they professed to represent. Like Mirabeau when he accepted the King's money, they may have imagined that they had not sold their principles and had not really entered the King's service; but even if they did not wear the German livery, Trotzky and his associates soon found themselves chained to the chariot wheels of their Austro-German masters and forced to do their bidding.
The Brest-Litovsk Treaties concluded between the Central Powers and the representatives of the Central Rada of the Ukraine Republic may be held to be invalid on the same or similar grounds as in the case of Russia and Roumania. In addition, it might be urged that according to alleged secret clauses of the treaty of February 9, 1918, the Polish territories of Cholm and Podalia, containing a population of nearly a million inhabitants (mainly Polish) were ceded to the Ukraine, without the consent of their inhabitants or even of the new Polish state so ostentatiously proclaimed by Germany and Austria in November, 1916. In fact, this treaty appears to create and sanction a sort of new partition of Poland.
To be sure, it cannot be maintained that such a disposition of