Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-02T23:44:34.618Z Has data issue: false hasContentIssue false
  • English
  • Français

Agency in International Law

Published online by Cambridge University Press:  12 April 2017

Angelo Piero Sereni
Angelo Piero Sereni*
Affiliation:
University of Ferrara, Italy
Get access Rights & Permissions [Opens in a new window]

Extract

I. In the field of international law every subject generally acts in person, through its own organs, without resorting to cooperation with other subjects. However, international practice shows that members of the community of nations sometimes act on behalf of other members, with the legal effect that the transactions performed by the acting subject in the name and for the account of the other have for the latter the same legal consequences as if it had acted in person. This happens, for example, when a state, duly authorized, concludes through its own organs a treaty for another state: the latter is thus bound by the treaty exactly in the same way as if it had concluded the treaty itself, through its own organs. This legal phenomenon implies a split between the immediately acting international person and the person to whom the legal effects of these acts are imputed.

Type
Research Article
Information
American Journal of International Law , Volume 34 , Issue 4 , October 1940 , pp. 638 - 660
Copyright
Copyright © by the American Society of International Law 1940

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The terms “international person” or “subject of international law” have been frequently used in this article instead of the term “state” in order to designate the parties to an agency relationship; for the status of principal and agent in international relations is not confined to states in the technical sense, but is also accorded to subjects of international law other than states, such as the League of Nations and the communities under Mandate A of the League of Nations.

2 The study of international agency has until now attracted few writers. For a complete survey of this subject, see Sereni, A. P., La Rappresentanza nel Diritlo Intemazionale (1936)Google Scholar. The only earlier works on international agency are: Marinoni, M., La Rappresentanza di uno Stato da parte di un altro e le Relazioni a cui dà origine (1910)Google Scholar, and Cavarretta, G., La Rappresentanza Convenzionale nel Diritto Intemazionale Contemporaneo (1928)Google Scholar. A brief reference to international agency in general may be found in the following works: Heilborn, P., Völkerrecht (1914), in Höltzendorff’s Enzyklopädie des Rechtswissenchaft, Vol. 5, p. 514 Google Scholar ff.; Anzilotti, D., Corso di Diritto Intemazionale (1912), I, p. 271 Google Scholar ff.; Perassi, T., Lezioni di Diritto Intemazionale (1937), p. 147 Google Scholar ff.; Pallieri, G. Balladore, Diritto Intemazionale Pubblico (1938), p. 221 Google Scholar ff.

3 Treaty of London between France, Russia, Great Britain and Italy, of April 26, 1915, Art. 7: “Italy will be charged with the representation of the state of Albania in its relations with foreign Powers.”

Treaty of Hué of June 6, 1884, establishing the French Protectorate over Annam, Art. 1: “L’Annam reconnaît et accepte le protectorat français. La France représentera l’Annam dans toutes ses relations extérieures.”

Treaty between Switzerland and the Principality of Liechtenstein concerning the union of the latter with the Swiss customs territory, March 29, 1923, Art. 8: “Das Fürstentum Liechtenstein ermächtigt die Schweizerische Eidgenossenschaft, es bei Unterhandlungen mit dritten Staaten ... zw vertreten und diese Verträge mit Wirksamkeit für das Fürstentum abzuschliessen.”

4 Publications of the Permanent Court of International Justice, Series A/B, No. 76, p. 16.

5 Corso di Diritto Intemazionale (1912), I, p. 126.

6 Cf. Pallieri, G. Balladore, La Guerra (1935), p. 330 Google Scholar ff. The opposite view, sustained by Marinoni, M., op. cit., p. 230 Google Scholar ff., and by Lapradelle, and Politis, , Recueil des arbitrages internationaux, I, pp. 339–340 Google Scholar, was accepted by the Franco-German, M.A.T. in Compagnie des Chemins de Fer du Nord v. État Allemand, April 8, 1929, Recueil des Décisions des Tribunaux Arbitraux Mixtes, IX, p. 67 Google Scholar ff. For an exact criticism of the latter doctrine, see Rousseau, Ch., in Revue Générale de Droit International Public, 1936, p. 509, n. 1 Google Scholar.

7 Treaty of Aug. 11, 1863, Art. 4.

8 Treaty of Hué of June 6, 1884, Art. 1.

9 Treaty of Bardo, May 12, 1881, Arts. 5 and 6, and Treaty of La Marsa, June 8, 1883, Art. 2.

10 Treaty of Fez, March 30, 1912, Art. 6.

11 Act of Union, Nov. 30, 1918, Art. 7.

12 Mandate for Syria and Lebanon, Arts. 3 and 12; Mandate for Palestine, Arts. 12 and 15. The Mandatory Power does not represent the territory under Mandates B and C of the League of Nations, according to the more precise view, which denies such territories international status.

13 Great Britain’s agency for the Ionian Islands was recognized by France in 1816 and by Turkey in 1849, and terminated in 1864 with the union of the Ionian Islands with Greece.

14 The representation of Cracow ended on Nov. 6, 1846, when the city was annexed by Austria.

15 The Treaty of Uccialli was abrogated after the Italian-Ethiopian hostilities by the Treaty of Peace of Addis Ababa of Oct. 26, 1896.

16 Art. 104.

17 Arts. 2, 4, 5, and 6.

18 Similarly, the Customs Union established between Italy and Albania by the Convention of April 20, 1939, has no international personality, so that Italy, when making the treaties for the Union (Art. 7 of the Convention), is deemed to act for herself and as an agent for Albania.

19 Treaties of Feb. 2, 1865, and of July 13, 1918.

20 Convention between Switzerland and the Principality of Liechtenstein of March 23, 1923, Art. 7.

21 Treaty of Fez, March 30, 1912, Art. 6.

22 As to the delegated protection of citizens abroad, see: Moore, Digest, IV, pp. 653-655; Borchard, E. M., The Diplomatic Protection of Citizens Abroad (1916), p. 471 Google Scholar ff.; Hyde, C. C., International Law (1922), I, p. 767 Google Scholar ff.; Bouffanais, P., Les consuls en temps de guerre et de troubles (1933)Google Scholar; Escher, A., Der Schutz der Staatsangehörigen im Aussland durch fremde Gesandtschaftén und Konsulate (1929)Google Scholar, and the authorities therein cited.

23 Ample information on this point can be found in Gamer, International Law and the World War (1920), Vol. I, p. 22; in 22 Revue Gin. Droit Int. Pub., p. 222 ff. See also Stuart, G. H., American Diplomatic and Consular Practice (1936)Google Scholar.

24 See Instructions to Diplomatic Officers of the U. S. (1897), p. 172; Consular Regulations, 1896, p. 174. The rule is well expressed by Acting Secretary Bacon, in For. Rel., 1907, pp. 583-584, and For. Rel., 1908, pp. 210-211. See especially, the State Department’s Circular Instruction of Aug. 17, 1914, in this Journal, Supp., Vol. 9 (1915), pp. 118–120.

25 Treaty between Italy and San Marino, of March 31, 1939, Art. 3.

26 Arts. 32, 36 and 38. See also the Geneva Convention of the same date for the Treatment of Prisoners of War, Arts. 91, 94 and 96.

27 Arts. 34, 35 and 38.

28 Arts. 10, 11 and 12.

29 One source of international law different from the customary law and from the general principles of law recognized by civilized nations is to be found in some fundamental principles which are inherent in the structure of the international community. One of these principles, for example, is that every state, unless special obligations prohibit it, may resort to war for the protection of its own interests.

30 The point of view accepted in the text is based upon the theory that the normal liberty of action, which international law grants to every member of the international community, can be restricted only with the consent of the member upon which the restriction is imposed.

Qualified legal status, such as the protectorate and neutralization, involving restrictions of the international activity of the protected or neutralized state, can only exist in compliance with the express or implied consent of such states. It may happen that the state which agreed to these restrictions was not in a position to reject them: e.g., Danzig, at the end of the World War, could certainly not have refused the Polish Protectorate. But this statement is a strictly political one, and does not refute the principle that, from a legal point of view, these restrictions are established with the consent of the state upon which they are imposed. The same applies to a defeated state that concludes an unfavorable peace treaty because it is no longer in the position to carry on the fight. This peace treaty, although imposed, is concluded with the consent of the defeated state according to the maxim “Coactus voluit sed tamen voluit.” The conclusion is that a protected or a neutralized state is not a state incapable of displaying a full international activity; for legal incapacity of a subject means lack of ability to perform certain activities, while a protected or neutralized state is in a condition to perform these activities, but, having internationally bound itself, must refrain from so doing.

31 Since there exists a similarity of approach to the present problem, resort is made here to the terminology used by Fenwick, C. G., Wardship in International Law (1919), p. 5 Google Scholar ff. See also Anzilotti, D., Corso di Diritto Internazionale (1928), pp. 83–84 Google Scholar.

32 In theory an international agency could be established also by usage, but the writer was unable to find any example of that kind.

33 After the Italian intervention of April, 1939, and the ensuing arrangements between the two states, Albania has certainly maintained her international personality, which was manifested by such international acts as withdrawal from the League of Nations and the conclusion of several treaties with Italy. The latter have given rise to an international union between Albania and Italy which has no international personality and may be likened to some relationships of real union which existed in the past. In fact, the union, dominated by Italy, is based on the preëstablished common monarch and on the strong connection of the organizations of the two states. In some aspects, as the incorporation of the Albanian into the Italian Army, it is similar to the vassal relationship existing in the Ottoman Empire until the last century. For further details concerning the present international status of Albania, see Rizzo, G. B., La Unione dell’Albania con Vltalia e lo Statuto del Regno di Albania (1939)Google Scholar.

34 See Wright, Q., Mandates and the League of Nations, p. 375 Google Scholar ff.

35 See supra, at § II.

36 Agency has been suggested as a device to secure permanent inequality between states. Within the Commission for the Revision of the Covenant of the League of Nations the proposal was made to admit as members of the League some small states, as San Marino and Liechtenstein, providing that they were represented at the Assembly by other states. Cf. Schücking, Le Développement du Pacte de la Société des Nations, in Recueil des Cours de la Haye (1927), Vol. 20, p. 376.

37 Transvaal agreed to conclude no treaty or engagement with any state or nation other than the Orange Free State without the approval of Great Britain. Such approval was to be taken for granted if the latter did not notify within six months after it was brought to the attention of His Majesty’s Government that the treaty was in conflict with British interests.

38 The Treaty of Mecca of Oct. 21, 1926, provides that the Imam of Azir cannot enter any political negotiation with any other state or grant economic concessions (Art. 2), or declare war or make peace (Art. 3) without the approval of the King of Hedjaz.

39 The Treaty of Protectorate of March 23, 1939, only reads (Art. 4) that “the Slovak Government will always conduct its policy in close cooperation with the German Government.”

40 The terms of the Mandates for Syria and Lebanon and for Palestine were defined by the Council of the League of Nations on July 24, 1922.

41 For a typical example of this procedure, see the exchange of notes between Switzerland and Sweden, Oct. 31, 1919, whereby Switzerland notified that she had agreed to represent Liechtenstein with regard to Sweden, and the latter consented to this agency. Attached to the Swiss note was a copy of the note of the Government of Liechtenstein, dated Oct. 21, 1919, asking the Swiss Government to assume the representation of the interests of Liechtenstein in Sweden (Martens, Nouveau Recueil Général, 3rd Series, Vol. XXIII, p. 543).

42 Borchard, E. M., The Diplomatic Protection of Citizens Abroad (1915), p. 471 Google Scholar ff. and cases therein quoted: “The question has been raised whether the local government must consent to the exercise of such delegated or substituted authority. In the absence of abnormal conditions when necessity or humanity requires prompt action and warrants a departure from strict rules, it is believed that the assent of the local government,—which as a rule is formally given upon request—is an essential condition.” See also U. S. State Department Circular Instructions of Aug. 17, 1914, to Diplomatic and Consular Agents Entrusted with the Interests of Foreign Governments at War with the Governments to Which Such Officers Are Accredited, in this Journal, Supp., Vol. 9 (1915), pp. 118-119: “…the care and protection of foreign interests in both peace and war is based upon the consent of both foreign governments concerned. The consent, having been freely given, may as freely be withdrawn by either. …”

43 Instances of general international agency are those mentioned supra at § II: of France for Madagascar, under the Treaty of 1885, of Italy for Ethiopia, under the Treaty of Uccialli, of Japan for Korea under the Agreement of 1905, and of Poland for Danzig. Albania’s representation by Italy provided for in the Treaty of London of April 26, 1915, would have been of this class.

44 The only international activity left to the Ionian Islands was the granting of exequatursto foreign consuls after consent of Great Britain. It was disputed whether the Republic of Cracow was left the right of active and passive legation with other states than the Protecting Powers. For questions raised on this point during the existence of the Republic, see Engelhard, E., Les Protectorats Anciens et Modernes (1896), p. 178 Google Scholar.

45 See the Circular Instruction of the U. S. State Department, cited in note 24.

46 For ample information on the dispute, see Stern, W. B., “The Treaty Background of the Italo-Ethiopian Dispute,” in this Journal, Vol. 30 (1936), pp. 191–192 Google Scholar.

47 Permanent Court of International Justice, The Lotus Case, Publications of the Court, Series A, No. 10, p. 18.

48 See the correspondence in this Journal, Supp., Vol. 13 (1919), p. 73 ff.

49 Stuart, G. H., American Diplomatic and Consular Practice (1936), p. 269 Google Scholar.

50 Commission Franco-Méxicaine des Réparations, La réparation des dommages causés aux étrangers par des mouvements révolutionnaires (1933); and Lauterpacht, H., Annual Digest, 1927–1928, p. 52 Google Scholar.

51 2 Spinks, 212; 164 E. R. 394. For differing interpretations of the condition of the Ionian Islands during the Crimean War, see Smith, H. A., England and the Law of Nations (1932), I, pp. 67–76 Google Scholar. See also on this case Wheaton, International Law (1929), I, p. 87, and Heilborn, P., “Jonishes Schiffsfall,” in Wörterbuch des Völkerrechts (1924), I, p. 593 Google Scholar.

52 Convention between Poland and Danzig, Nov. 9, 1920, Arts. 3 and 6. As to the rules to be followed by Poland in the agency for Danzig in order to balance the interests of both parties, see the decision of Dec. 17,1921, by the High Commissioner of the League of Nations (League of Nations Doc. C. 116. M. 69.1922), and the advisory opinion of the Permanent Court of International Justice of Aug. 26, 1930, in the case of The Free City of Danzig and the International Labor Organization (Publ. of the P.C.I.J., Series B, No. 18, p. 13).

53 Treaty of June 28, 1923, Art. 7. Liechtenstein had to be consulted in the conclusion of commercial treaties and customs agreements with Austria.

54 Treaty of July 21,1921, Art. 5. No treaty of commerce could be concluded or modified without the advice of the Government of Luxembourg.

55 For Albania’s control of Italy’s activities on her behalf, see Art. 2 of the Convention of June 3, 1939, for the Unification of the Diplomatic and Consular Services, and Art. 7, par. 2, of the Economic Convention of April 20, 1939.

56 Arts. 3 and 6 of the Convention of Nov. 9,1920. See also the resolution of the Council of the League of Nations of Sept. 6, 1929, concerning the “Procedure to be followed with regard to the second paragraph of Art. 6 of the Danzig-Polish Treaty of November 20,1920” (League of Nations Official Journal, 1929, p. 1462).

57 E. M. Borchard, op. cit., p. 473.

58 The Draft Convention on Responsibility of States for Injuries to Aliens, prepared by the Research in International Law of the Harvard Law School, this Journal, Spl. Supp., Vol. 23 (1929), p. 145, reads as follows (Art. 3): “A state is not relieved of responsibility because an injury to an alien is attributable to one of its political subdivisions regardless of the extent to which the national government, according to its constitution, has control of the subdivision. For the purposes of this article, a dominion, a colony, a dependency, a protectorate or a community under mandate, which does not independently conduct its foreign relations, is to be assimilated to a political subdivision.” The comment to this section reads: “This would seem an established rule of international law.” Even assuming this statement to be correct, it cannot be denied that the responsibility of the protecting state or of the Mandatory Power for wrongs committed by the protected state or by the community under Mandate A, would differ from the liability of a state for wrongs committed by one of its political subdivisions or of its colonies. In the latter case, the basis of the state’s responsibility rests on the ground that the political subdivisions or the colonies do not enjoy an international personality independent from the state to which they belong, and therefore that the wrongs they commit are international wrongs of the state of which they are a part; on the other hand, the protected states and the communities under Mandate A are subjects of international law respectively distinct from the protecting state and from the Mandatory Power.

59 Publications of the Permanent Court of International Justice, Series A, No. 2, p. 23.

60 Réclamations Britanniques dans la Zone Espagnole du Maroc (1925), pp. 176–181.

61 See Ago, R., “La Responsabilità indiretta nel Diritto Internazionale,” in Archivio di Diritto pubblico, 1936, p. 11 Google Scholar ff., and the references cited there.

62 Reported in Nielsen, F. K., American and British Claims Arbitration, under the Special Agreement concluded between the United States and Great Britain, August 18, 1910 (1926), pp. 459–471 Google Scholar.

63 Eagleton, C., Responsibility of States in International Law (1928)Google Scholar, after remarking that “responsibility is measured by freedom from external control,” writes (p. 25): “The degree of subordination in which one state is held by another may be such as to relieve the former of a certain portion of its responsibility towards other states.” Compare Ago, La Responsabilità, op. cit., p. 37. That the responsibility of the protecting state for the wrongs committed by the protected state exists only in so far as the wrongful act was one that the protecting state could have prevented, was clearly recognized in the Robert Brown case, decided on Nov. 23, 1923, by the British-American Claims Tribunal, reported in Nielsen, F. K., American and British Claims Arbitration, pp. 162–202 Google Scholar.