ing to strict theory, each sovereign state is entirely at liberty to do anything it pleases, but, as in the case of the individual, the history of civilization is the history of states exercising their sovereignty to derogate therefrom so that mutual relations may be rendered more satisfactory. A treaty is, of course, valid only if contracted voluntarily; but though in the past duress has been exerted to force signing a treaty, in modern practice, ratification, an executive function, is a condition precedent to binding force, and, as a consequence, any ratified treaty may be considered as valid.

In view of the volition exercised in negotiation and the second thought provided by ratification, what is the status of the violation of a treaty? It can be defined only as an illegal phenomenon. And this is the more true because the inherent sanctity of treaties is even greater than that of the municipal law, which in many cases is repugnant to the interests of the individual citizen who is bound by it, while a treaty is always the consensus of the negotiating states. Consequently, international law has developed many tests for determining the legality of treaties. Rules of mere interpretation are not much different from those of municipal law; but we are concerned here rather with means of determining when a treaty ceases to exist. The very best method of determining this is by inserting a periodic clause in the treaty itself,

exerted by the sentiment of moral disapproval, and thus by any rule of conduct to the infraction of which it is attached, is the thing answering to the phrase moral obligation. But this is not precisely what we mean when we use these phrases. We do not mean the force actually exerted in either case a force which varies infinitely.. . . . We mean rather the force which the law is calculated to exert without any conscious analysis of the notion expressed by "ought," which indeed seems to elude analysis. The obligation of a law thus denotes to us, not the actual force of the law, but a force which our minds ascribe to it; and the obligation of a moral rule denotes a force which our minds ascribe to the moral rule. The moral obligation of a contract is the duty of not disappointing the expectation which the promise is calculated to create; and the strength of the duty depends on the strength and the reasonableness of that expectation. The rules of conduct which use and opinion are sure to beget by degrees among civilized communities in constant and various association with each other have acquired not only the name but somewhat of the strength of laws; they perform for nations, though imperfectly, the precious service which laws perform for private men, that of furnishing fixed positive standards for conduct and for the adjustment of disputes. Mountague Bernard, Four Lectures on Subjects connected with Diplomacy, 164-169.

stating that the document shall remain in force for a stipulated period from the date of exchange of ratifications. Such a clause is found in nine-tenths of the treaties practically all nonpolitical treaties — negotiated in recent years and operates automatically to bring the documents up for review. Earlier treaties, however, did not contain this provision, and it is not considered desirable in treaties of neutralization; or necessary in other acts where execution of the contract is accomplished once for all, such as a cession of territory, or in conventions that are declarative of accepted law, such as the Hague engagements.

This study is to be mainly historical as to the violation of treaties in the strict sense, and it is, therefore, important to get bearings at the outset. A treaty is not violated by a difference of agreement as to its meaning; it can only be violated when the parties accept the same meaning and the sense thereof is contravened. A treaty can be violated by extinguishing it without proper reason, and this is the most customary method that history divulges. State A delcares that for it a treaty does not exist or bind, and the failure on the part of B to accept this point of view will constitute violation by A. But, as extinction of treaties is a normal phenomenon, it is necessary to show the methods by which this can be accomplished. For the purpose of making the requisite distinctions, I have taken four lists, compiled respectively by Wharton, Bluntschli, Laghi, and Bonfils-Fauchille,2 of

2 Wharton, International Law Digest, 2, 58, cited Moore, Digest of International Law, 5, 319; Bluntschli, Das moderne Völkerrecht, secs. 411, 412, 414, 450 ff.; Laghi Theoria dei trattati internazionali, 198 ff.; Henry Bonfils (mise au courant par Paul Fauchille), Manuel de Droit international public, 855-860.

It should be stated that nothing new has been added to the framework of law relative to the extinction of treaties since Samuel Puffendorf wrote Book III of Juris naturae et gentium libri VIII in 1672, and he was much indebted to Grotius. Almost all authors of treatises refer to the subject, many as fully as those here cited.

For a study of extinction see Olivi, Luigi, Sull' Estinzione dei Trattati internazionali, in Annuario delle Scienze giuridiche, sociali e politiche, diretto da Carlo F. Ferraris. Anno 4, 1883, 1-67. Olivi reviews the opinions of publicists very thoroughly and concludes inter alia:

"Therefore, with few exceptions, we can say that our science was and is unanimous in protesting against the violation of international pacts, and that just as it has recognized the freedom of states to bind themselves by valid agreements, so it has denied to them an unlimited freedom of choice in considering them extinct at their pleasure, taking merely material interests as the only rule for such behavior" (p. 11).

the methods by which treaties attain the end of their life. Each is written from a somewhat different point of view, and they repeat each other to a very small extent, even when discussing the same general cause of the extinction of a treaty.

Wharton considers the circumstances under which treaties may be modified or abrogated, and his attitude evidently is that, with these circumstances present, the document is practically automatically altered or extinguished. Bluntschli considered both voidability and extinction. Laghi takes up primarily the treaty which in its nature is impossible. Bonfils-Fauchille lists "the causes which bring about the extinction of conventional obligations." If we were confined to a single plan, the last one would be chosen for this study, but all the lists have been combined and supplemented. The methods, then, by which a treaty comes to an end are as follows:

1. The full and complete execution of the treaty (Bonfils-Fauchille [A]) which occurs (a) when all material stipulations have been performed, or (b) when the acts accomplished are done once for all (Wharton, 4), and do not set up permanent conditions (Dalloz, Répertoire, 42, Part I, 561, sec. 167; Puffendorf, I, XVI, 1).

2. The expiration of the conventional term (Bonfils-Fauchille [B]; Dalloz, sec. 167, 2; Bluntschli, 450, c; Puffendorf, 'I, XVI, 7).

3. The attainment of a cancellative condition expressly provided for (Bonfils-Fauchille [C]; Dalloz, sec. 167, 2), which from another point of view may be stated as the ceasing to exist of a state of things which was the basis of the treaty and one of its tacit conditions (Wharton, 7; Hall, 293, 5; Bluntschli, 450, b).

4. Impossibility of execution. Wharton considers abrogation proper in the case of moral or physical impossibility; Bonfils-Fauchille definitely excludes physical impossibility from consideration (cf. Hall, 293, 4). The following theoretical cases of impossible treaties, chiefly from Laghi's list, may be instanced:

"In harmony with the argument previously maintained, we dub as unacceptable the theory of Del Bon, which makes the subsistence or extinction of a treaty of commerce depend on the mere utility of a contracting state" (p. 30).

"Different criteria according to the various kinds of treaties cannot be adduced, but it is necessary to fix in some way a single criterion for all cases" (p. 31).

(a) Those which are juridically impossible; where execution in regard to one contractant would specifically violate the document in respect to another contracting State. Such a situation might now arise if two Powers were given conflicting rights in the same territory, particularly if the subject of the treaty were ordered therein to take action to satisfy both.

(b) Those which fail to recognize or offend the principle of nationality (Hall, 293, 6).

(c) Those which establish cessions, donations, changes, separations, unions, or federations of people without the consent of those interested.

(d) Those which contract for the assistance of foreign troops against their own subjects, or for intervention or protection when the people protected are deprived of their inherent liberties. (e) Those which sanction conquest, the abdication of sovereignty, the subjection of one people to another; phrased by Bluntschli as those which "aim at the forcible suppression of a peaceful and virile state" (sec. 412, b).

(Those which impose on a state a given form of government, a dynasty, a limit to its free political, economic, or intellectual development.

(g) Those which deal with affairs of states not parties to the treaty,

or contradict valid and nonextinct treaties with other parties of earlier date (in so far as they contravene the other treaties) (Hall, 275).

(h) Those which deal with things common to all, as seas, or deny any right to foreigners, or prescribe religious persecution. (i) Those which contract dishonest loans or offend the general laws of humanity and the necessary principles of the law of nations. (j) Those which recognize slavery, piracy, brigandage, etc. (k) Those which prevent a state from excluding foreigners from its territory in the public interest.1

* Vattel (III, VI, 93) poses the proposition in considering three allied states, of which two are at war against each other and are calling on the third for assistance. 4 An arbitrary expulsion may nevertheless give rise to a diplomatic claim. Moore,

5. The renunciation by a state of the rights which a treaty confers upon it (Bonfils-Fauchille [E]); otherwise stated as the election to withdraw of a party having the option (Wharton, 5; Hall, 293, 2; Dalloz, sec. 167, 3; Puffendorf, I, XVI, 3).

6. Mutual consent to bring the agreement to an end (Wharton, 1; Hall, 293, 1). This seems a better phrasing of the idea than the "mutual dissent" of Bonfils-Fauchille [F], which is explained as the "concurrence of the wills which sufficed to create rights and obligations between states." (Puffendorf, I, XVI, 4.) Bluntschli defines it as extinction "through a free agreement" (sec. 452).

7. Denunciation under conditions provided in the treaty itself (Bonfils-Fauchille [G]; Hall, 293, 3).

8. When continuance is conditioned upon terms which no longer exist (Wharton, 2; Dalloz, sec. 167, 5), provided annihilation has not been occasioned by the fault of the parties, by the decease of the person interested or obliged, if no one else legally succeeds (Heffter sec. 99; Puffendorf, I, XVI, 6).

9. Unilateral denunciation (Bonfils-Fauchille [H]) in accordance with the maxim conventio omnis intelligitur rebus sic stantibus (Wharton). 10. The refusal by either party to perform a material stipulation (Wharton, 3; Bonfils-Fauchille [I]).

11. Extinction, temporary at least, by war of treaties, incapable of execution during hostilities (Bonfils-Fauchille [J]). In case of war only those treaties necessarily affected by the conditions are suspended

Digest of International Law, IV, 67-96. Allegations of treaty violation as a result of expulsion have been nulled by the United States in connection with incidents based on Art. 1 of the treaty of December 18, 1832, with Russia (ibid., pp. 70-80, 111-129); Art. XIII of the treaty of June 13, 1839, with Ecuador (ibid., p. 74); Art. 14 of the treaty of April 5, 1831, with Mexico (ibid. pp. 75-76); Art. 6 of the treaty of November 3, 1864, with Haiti (ibid., pp. 89-92), though in this case (Loewi's) arbitrary circumstances complicated the question; Art. XII of the treaty of March 3, 1849, with Guatemala (ibid., pp. 102-108).

Despagnet amplifies this and considers it legitimate (a) when observation of the treaty has become compromising for the political or economic existence of a country; (b) when the circumstances which were the motive for the treaty have changed and divest the clear purpose of the agreement of its reason for being. "But the condition of maintenance of treaties rebus sic stantibus must be in good faith and must not be extended to accidental modifications."