That in our opinion Her Majesty's Government may properly inform the Honduras Government that they consider the withdrawal of the privileges hitherto accorded by the Government of Honduras to Ampala to be a breach of the additional Article of the Treaty of 1856 and that unless those privileges are restored and maintained Her Majesty's Government will hold themselves at liberty to withhold the guarantee of neutrality of the Honduras Interoceanic Railway Company.1

It is clear that in the opinion of the Law Officers of the British Crown the United Kingdom would be justified in denouncing the Agreement on the ground of prior breaches of obligations on the part of Honduras.

The Proposed Anglo-American Treaty of Extradition 1876

On 27 May 1876 Mr. Hamilton Fish, the United States Secretary of State, conversed with Sir Edward Thorton, the British Ambassador in Washington, relative to certain provisions of the proposed AngloAmerican Treaty of Extradition. În course of the conversation, Mr. Fish observed:

that with such a provision in a treaty, and with the similarity
of the two governments and of their people on the question of
political asylum, a full protection would be secured against
the trial of a surrendered fugitive for any political offence;
and that the violation of such provision by either of these two
governments was not within the reach of contemplation, but,
should it occur, it would lead to the denunciation of the treaty
by the surrendering state, which would also be liberty to hold
the offending state to its responsibility for violating a treaty
engagement.1

15

The Angelo-American Treaty of Extradition, 9 August 1842 1

16

On 20 June 1876 Mr. Grant, the President of the United States, in a message to the Congress referred to the dispute between the United States and the United Kingdom resulting from divergences of opinions relative to the interpretation of Article X of the Anglo-American Treaty of Extradition of 1842, and he stated his view that the United States would be justified in denouncing its obligations under the Article in question on the ground that the United Kingdom had violated her obligations under the Article. He said:

It is for the wisdom of the Congress to determine whether the article of the treaty relating to extradition is to be any longer regarded as obligatory on the Government of the United States or as forming part of the supreme law of the land. Should the attitude of the British Government remain unchanged, I shall not, without an expression of the wish of Congress that I should do so, take any action either in making

14 McNair, The Law of Treaties, op. cit., p. 556.

15 See Memorandum of a convention between Sir Edward Thorton and Mr. Fish at the United States Department of State, 27 May 1876. U.S., House of Representatives, Executive Document No. 173, 44th Congress, 1875-77, pp. 45-46.

16 Malloy, op. cit., Vol. I, p. 65.

or granting requisitions for the surrender of fugitive crim-
inals under the treaty of 1842."7

The Clayton-Bulwer Treaty, 19 April 1850 18

On 19 April 1850 the United States and the United Kingdom signed a treaty, commonly known as the Clayton-Bulwer Treaty, Article I of which stipulated:

The Governments of the United States and Great Britain hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, or occupy, or fortify, or colonise, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America; nor will either make use of any protection which either affords or may afford, or any alliance which either has or may have to or with any State or people for the purpose of erecting or maintaining any such fortifications, or of occupying, fortifying, or colonising Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America, or of assuming or exercising dominion over the same; nor will the United States or Great Britain take advantage of any intimacy, or use any alliance, connection, or influence that either may possess, with any State or Government through whose territory the said canal may pass, for the purpose of acquiring or holding directly or indirectly, for the citizens or subjects of the one any rights or advantages in regard to commerce or navigation through the said canal which shall not be offered on the same terms to the citizens or subjects of the other.19

On 17 July 1852 the United Kingdom proclaimed the Belize Area a British colony,20 and apart from this she continued to exercise protectorship over the Mosquito Territory. The United States maintained that the United Kingdom, by converting the Belize Area from a settlement into an outright possession or colony and by continued protectorship over the Mosquito Territory, contravened the provisions of Article I which expressly forbade both parties to colonise, fortify or to exercise dominionship in Central America.21

The United Kingdom maintained the British protectorship over the Mosquito Territory could not be likened to either dominionship or colonisation. She declared that the Belize Area had been a British possession prior to and since the conclusion of the Treaty and since Article I was to be applicable prospectively it could not therefore legitimately be invoked against continued British control or dominionship over the Belize Area.22

20 The U.S. Department of State. The Clanton-Bulwer Treaty and the Monroe Doctrine (Washington Government Printing Office. 1882), p. 97.

21 See the United States Secretary of State Mr. Frelinghuysen's letter of 8 May 1882 to Mr. Lowell, the United States Minister in London. U.S. Foreign Relations, 1882. n. 276. 22 See the British Foreign Minister Lord Granville's letter of 7 January 1882 to Mr. West. the British envoy in Washington. Moore, op. cit., Vol. 111, p. 195; ibid., p. 161, see Lord Clarendon's statement of 2 May 1884.

The dispute over the interpretation and application of the Treaty lasted on and off for more than four decades. On several occasions the United States expressed her conviction that she had the right unilaterally to terminate the entire Treaty on the ground that the United Kingdom had violated it. On 8 May 1882 Mr. Frelinghuysen, the United States Secretary of State, in an instruction to Mr. Lowell, the American Minister in London, stated that the British conversion of the Belize settlement into a Crown Colony infringed Article I of the Treaty which in effect rendered it voidable at the instance of the United States.

The United States have never given their assent to this conversion of the British "settlement" in Central America under Spanish-American sovereignty into a British "possession" with British sovereignty. There is a vast difference between a settlement subject to the sovereignty of the Central American republic and a colony controlled by Great Britain.

Under the treaty of 1850, while it is binding, the United States have not the right to exercise dominion over or to colonise one foot of territory in Central America. Great Britain is under the same rigid restriction. And if Great Britain has violated and continues to violate that provision, the treaty is, of course, voidable at the pleasure of the United States.23

On 30 August 1882 the Law Officers of the British Crown submitted a report to Lord Granville, the British Foreign Minister, relative to the Clayton-Bulwer Treaty. The report rejected Mr. Frelinghuysen's contention that the Treaty was voidable at the pleasure of the United States. It did not deny the existence of the rule of unilateral denunciation. What it maintained was that since Great Britain had not violated the Treaty the United States had not the right to resort to unilateral denunciation. Thus, it appeared to confirm the existence of this rule, although indirectly. Further, it asserted that the norm of extinctive prescription disallowed the United States to invoke this rule. The report stated

The ground upon which it is alleged that the Treaty is void-
able at the pleasure of the United States is that Great Brit-
ain has violated, and continues to violate, its provisions by
exercising sovereignty over British Honduras, and treating
that territory as a British Colony. This contention appears to
us wholly untenable.

It is clear that neither of the negotiators of the Treaty in-
tended, nor did the Government of this country, that the lan-
guage of Article I describing the Country not to be occupied
should include British Honduras. This was put upon record
at the time by Mr. Clayton, coupled with the statement that
the Senate of the United States "perfectly understood that
the Treaty did not include British Honduras."
And after this and what took place in 1853
it seems
opposed to all sound principle that the United States should

23 U.S. Foreign Relations, 1882, p. 271.

now claim to abrogate the Treaty of 1850 by reason of the
existence of a state of things which has prevailed to their
knowledge, ever since its ratification, to which the Treaty was
never intended to apply, and notwithstanding the known
existence of which they have more than once recognised the
Treaty as subsisting.24

On 30 December 1882 Lord Granville, in an instruction to Mr. West. the British Minister in Washington, maintained that "the British Government have committed no act in relation to British Honduras or otherwise which can invalidate that treaty and justify the Government of the United States in denouncing it." 25 Further, he observed in the words of his law officers, noted above, that the norm of extinctive prescription estopped the United States from exercising the rule of unilateral denunciation.26

On 19 July 1884 Mr. Frelinghuysen in a communication to Mr. Hall, the American Minister to Central America, again noted his belief that the Treaty was rendered voidable at the option of the United States because of violations on the part of the United Kingdom. He said:

The treaty was voidable at the option of the United States. This, I think, has been demonstrated fully on two grounds. First, that the consideration of the treaty having failed, its object never having been accomplished, the United States did not receive that for which they covenanted; and, second, that Great Britain has persistently violated the agreement not to colonise the Central American coast.27

In 1896 Mr. Olney, the United States Secretary of State, issued a memorandum discussing the status of the Treaty. He noted that the United States on a number of occasions had declared that the Treaty was voidable because of violations by the United Kingdom. He, while confirming the doctrine of unilateral denunciation, noted that the rule of extinctive prescription estopped the United States from denouncing the Treaty. He said:

Mr. Frelinghuysen's second proposition is that the treaty is "voidable" because the Belize district (so-called) has been transformed by Great Britain into an organised colony. But, in the first place the transformation has taken place pursuant to the treaty with Honduras. which was accepted by the United States in 1860 as a satisfactory compliance with the provisions of the Clayton-Bulwer Treaty. In the next place, the Belize colony was organized in 1862 and, until the time of Mr. Frelinghuvsen, its organization was never made a cause of complaint by the United States. In the third place. if the organisation of the Belize colony is to be deemed an infraction of the Clayton-Bulwer Treaty, the United States has acquiesced therein too long to claim that the treaty has thereby become null and void. If not altogether estopped to treat the colony as a grievance, its only remedy is to give no

tice that it will regard the future maintenance of the colony
as a violation of the treaty and, if its remonstrance is not
heeded, to then take such further steps in the matter for the
abrogation of the treaty, or otherwise, as it may deem expe-
dient. But, that the existence of the Belize colony gives any
present right to deal with the treaty as a nullity can not be
maintained for a moment.28

The Treaty was not unilaterally put to an end by the United States, although she repeatedly asserted her right to do so on the ground of prior breaches of obligations on the part of the United Kingdom. It was superseded by the Hay Pouncefote Treaty of 18 November 1901.29 The Sino-American Treaties, 1844-1880 30

Between 1844 and 1880 the United States and China contracted four treaties all of which were juridically bound together, although signed and ratified at different times.31 The last of the four treaties, among other things, contained provisions regarding the entry and residence of Chinese nationals in the United States.

32

On 1 October 1888 the United States Congress passed an act, known as the Chinese Exclusion Act, despite warnings from the State Department and the Chinese Government that the proposed act in effect would infringe the Treaties. The Chinese Government complained that the act was contrary to express stipulations of the Treaties,33 and the United States Government concurred with this view.34 China contended that the Treaties were rendered voidable at her pleasure because of violations of obligations on the part of the United States. On 8 July 1889 Mr. Chang Yen Hoon, the Chinese Ambassador in Washington, in a letter addressed to Mr. Blaine, the United States Secretary of State pointed out:

The action of Congress in violating treaty stipulations is not justified by its conduct towards other nations, nor by any action of the Chinese Government.

The action of Congress is virtually a denunciation of all existing treaties, and an invitation to China to terminate all diplomatic and commercial relations.

With a statesman so well versed in the principles of international law as you, Mr. Secretary, I do not think it necessary to argue that the abrogation by Congress under the circumstances, of an important treaty stipulation, releases China from the observance of all its treaties with the United States. 35

On 26 March 1890 Mr. Tsui, the Chinese Ambassador in Washington, in a note to Mr. Blaine, stated:

The public law of all nations recognises the right of China

to resort to retaliation for these violated treaty guarantees,

28 Moore, op. cit., Vol. III, p. 207-208.

Malloy, op. cit., Vol. I. p. 782.

20 Ibid., pp. 196, 211, 222, 232, 234, 237, 239.

21 U.S. Foreign Relations, 1889, p. 136.

22 Ibid., 1890, p. 214.

33 Ibid., 1889, pp. 134-135.

24 Ibid., 1889, p. 134.

5 Ibid., pp. 134-135.