of legislation. Moreover, acts were passed thereunder in 1888 and 1889 regulating pearl fisheries beyond the three-mile limit.11 These fisheries are pursued on the banks far out from the mainland and are similar to the pearl fisheries off the coast of Ceylon, which have been, on the ground of prescription, recognized by writers on international law as an exception to the three-mile limit of jurisdiction over territorial waters. The Australia Act also stands alone in stipulating that the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth (Aust. Preamble 5). Obviously this includes ships engaged in coastwise trade, but query whether the wording does not include vessels on more extended voyages, for example, from Australia to some Pacific Islands and return. The subject of aliens has received some attention in all of the constitutions. Thus, the South Africa Act declares that all persons naturalized in the colonies shall be deemed naturalized throughout the Union (S. A. 139). From this clause the words "of European descent" were stricken out in the Bloemfontein convention, and thus the status of African and Oriental naturalized persons appears to have been preserved. In Canada and Australia no such requirement exists, but Munro points out that aliens naturalized before union in the Canadian provinces are recognized and may sit in parliament as senators.115 In these countries power to legislate on the subject of naturalization and aliens, and also, in Australia, on immigration, is given to parliament (Can. 91 (25), Aust. 51, xix). There is, however, the Naturalization Act of 1870 (33 and 34 Vict. c. 14) which in some respects is controlling in the colonies, and the colonial legislatures have adopted the main provisions of the act in accordance with authority given therein.116 The act enlarged the right of aliens to hold and alienate property, which previously was limited to personal property, so as to include real property. But it conferred no right to 114 Quick and Garran, Const. of Aust. Com., pp. 570, 571. 115 Munro, Const. of Can., p. 144. 116 Quick and Garran, Const. of Aust. Com., p. 600. hold property located outside the United Kingdom, while it further provided that local legislation conferring the privileges of naturalization shall have authority only within the limits of the colony. It would seem, therefore, that a person naturalized in Canada is not thereby a naturalized subject of the British Empire, and that his national status must be decided by Imperial law, while the rights and liabilities incident thereto must be, while he is in Canada, determined according to Canadian law.117 It appears, however, though the right to naturalize is given to the Dominion parliament, that it is still a question whether parliament or the provinces may legislate as to the incidents flowing from naturalization.118 In Australia the power to naturalize is not exclusively granted to parliament and it is there considered that naturalization under the State laws is good federal naturalization until parliament takes control of the matter.119 In case of war between England and another country, all of the colonies would legally become belligerent territory. Canada and Australia, however, claim that they should be left to decide when they should aid Great Britain in a foreign war. In the matter of Imperial defense, on which a conference of the Empire was held at London during the past summer, it is reported that England was in sympathy with the colonial feeling against a military Empire and for autonomy in military as in civil matters. All of the colonies represented, however, desired to take a fair share of the cost of naval defense. South Africa not being at that time a self-governing colony, was not officially represented at the conference, though some members of the Union delegation attended the meetings. But the Union, in assuming the liabilities of the South African colonies, becomes responsible for the naval contributions of Cape Colony and Natal, amounting to £85,000 per annum. The conference evolved a scheme for establishing an Imperial general staff with an interchange of officers trained in the Dominions, for making the training 117 Donegani v. Donegani, 3 Knapp, P. C. 63; Re Adam, 1 Moo. P. C. 460; Clements, Can. Constitution 230. 118 Bryden's Case, 68 L. J. P. C. 118; Re Tomey Homma, 72 L. J. P. C. 23; Clements, Can. Constitution 231 et seq. and organization of over-sea troops uniform with those of the Imperial troops, and for establishing military training colleges in the Dominions. Moreover, during the summer the Colonial Defense Act of 1865, under which colonies could offer and England accept ships of war for the Imperial navy, was amended to allow also the offer and acceptance of seamen voluntarily raised by the colonies.120 LESTER H. WOOLSEY. 120" South Africa," Aug. 14, 1909, p. 379; Aug. 28, 1909, p. 503; Aug. 21, 1909, p. 426; Sept. 4, 1909, p. 538. COMPULSORY ARBITRATION AT THE SECOND HAGUE CONFERENCE.1 It was in the natural course of things that the Second Conference of 1907, called to elaborate the work of 1899, should deal with the problem of extending arbitration along the lines indicated in the Russian proposal of 1899, and that the question should be reconsidered as to whether the nations could not and should not obligate themselves to refer disputes to arbitration. In this connection it was possible to point to the fact that a large number of the most powerful and important signatory nations of 1899, as well as other nations not in the same class, had already taken steps in this direction in treaties concluded with various individual powers. The question was therefore asked whether it might not be possible to substitute a universal arbitration treaty instead of such a set of individual treaties, which must consist of 46 x 45= 2070 conventions if it were to be complete, such universal treaty to embody a general obligation to submit to arbitration in a limited number of cases, but at the same time to form a nucleus for more comprehensive treaties to be concluded by the various individual nations. This question was propounded on all sides. The United States of America made a proposition at the very beginning of the Conference, according to which the nations were to pledge themselves to refer to the Permanent Court of Arbitration of The Hague all differences of a legal nature or such as related to 1 The above is a translation of an extract from an article on International arbitration, contributed to Herder's Staatslexikon, 3d edition, second volume, by Dr. Heinrich Lammasch, Professor of International Law in the University of Vienna. It is not the custom of the JOURNAL to publish material which has appeared elsewhere, but as Dr. Lammasch is Umpire in the North Atlantic Coast Fisheries Arbitration between Great Britain and the United States, his views on arbitration are of peculiar interest. The JOURNAL therefore translates and publishes the article, which is as valuable as it is interesting. — J. B. S. he interpretation of international treaties, provided they could not be settled by diplomacy and did not affect the vital interests, the independence, or the honor of either of the parties or the interests of third nations; however, the right was to be reserved by each party to decide itself whether its vital interests, independence, or honor were affected by the dispute. The propositions of Portugal and Sweden went further, for they added to this general but conditional obligation a limited but unconditional obligation to arbitrate certain disputes, while a proposition made by Servia contained only such a list of cases to be settled unconditionally by arbitration. A proposition made by Brazil constituted a variation of the American proposition, going further in some directions and being more restricted in others. The German Empire opposed all these propositions from the start. Although its first delegate, Baron von Marschall, could not express himself strongly enough to show the recognition of the principle of arbitration by Germany, both he and the second delegate, Privy Councillor Dr. Kriege, boldly and energetically opposed every definite proposition made in this direction. The general American proposition was objected to by Germany on the ground that it was useless and only a sham owing to the broad exceptions. To this it may be answered that the laying down of the principle in this form is not only of moral significance, as pointed out by the Austro-Hungarian delegate, von Merey, but has an extensive legal bearing. For even a qualified and conditional recognition of the obligation to submit to, arbitration is a recognition of the fact that the arbitration of such disputes, after an unsuccess ful attempt to settle them by diplomacy, is the normal method of settling them. If a nation does not wish to consent to arbitrate a question as proposed by the adversary in a given case, it must justify its refusal by invoking the vital interests or national honor clause. To be sure, this excuse does not need to be explained in detail, it being sufficient simply to advance it, but nevertheless the nations will generally hesitate to avail themselves of this pretext unless it is really warranted. Self-respect alone will restrain them from representing their honor as being too vulnerable or their vital interests as being too easily jeopardized. |