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itary measures against Serbia." She further charged that Austria defaulted in her obligations under Article I of the Treaty by failing to communicate her ideas or plans relative to the Balkans prior to initiating military actions against Serbia. Apart from these, she contended that Austria infringed the provisions of Article VII by failing to reach and execute an agreement on compensations before embarking upon the military campaign in the Balkan region.65

66

On the other hand, Austria was emphatic in her assertion that her military measures against Serbia were defensive and that they were aimed at maintaining the status quo in the Balkans. She rejected the Italian contentions that she had defaulted in her obligations 67 under Article I and VII; for she maintained that she had informed Italy about her plans relative to Serbia, as required under Article I, and that she was not obliged under Article VII to conclude an agreement on compensations definitively and execute it prior to the conclusion of the peace, but merely to initiate discussions on the question of compensation. She contended that "the realisation of compensation on the part of one of the contracting parties must be simultaneous to the advantages which the other party should have assured itself." She argued that there could not be compensation without occupation," that is, until the nature and extent of her occupation of territories was definitive there could not be territorial compensations for Italy. Count Brecht, Austrian Foreign Minister, stated that he could not understand "how Article VII could be cited in connection with temporary occupation, the result of occupation of war, which might be abandoned from one day to the other according to the fortunes of war." "71

70

Both sides remained adamant in respect of their divergent interpretations of Article VII. Italy clung to her interpretation of this Article that Austria was obliged to conclude and execute an agreement on compensations before taking military action against Serbia, and Austria insisted that she was not obliged, under the provisions of this Article, to reach and execute an agreement on compensation prior to the conclusion of the peace. At one point of a long diplomatic dialogue between them, the Italian Ambassador in Vienna remarked to the Austrian Foreign Minister that unless the latter agreed to the interpretation of Article VII given by Italy's Foreign Minister Italy might consider liberating herself from the entire treaty. To this remark, the Austrian Foreign Minister replied that if the Foreign Minister of Italy had "the right to interpret the Treaty, he also had similar right; and that a transient difference of opinion or of interpretation could not be considered as a violation of the Treaty itself." 72

Italy finally broke off all negotiations with Austria, and on 3 May 1915 she, in a note to Austria, announced her decision unilaterally to terminate all her obligations under the Treaty on the sole ground of prior violations of obligations on the part of Austria.73 The note said:

63 James Brown Scott (ed.). Diplomatic Documents Relating to the Outbreak of the European War (New York: Oxford University Press, 1916), Part II, pp. 1912, 1215-1216. 64 Ibid., pp. 1323-1324.

65 Ibid., pp. 1324, 1212, 1215.

es Ibid., pp. 1212, 1227.

67 Ibid., pp. 1250, 1320.

68 Ibid., p. 1223.

Ibid., p. 1277.

70 Ibid., pp. 1223, 1254, 1213, 1233-1234.

71 Ibid., p. 1213.

72 Ibid., p. 1256.

73 Ibid., pp. 1317-1318.

The Alliance between Italy and Austria-Hungary proclaimed itself, from the first, to be an element and a guarantee of peace, aiming first of all as the principal object at common defence. In view of subsequent events and of the new situation arising out of them the two countries found it necessary to propose a new object no less essential, and in the course of the successive renewals of the Treaty, they devoted themselves to safeguarding the continuity of their alliance, stipulating the principle of preliminary agreements regarding the Balkans, with a view to reconciling the divergent interests and propensities of the two Powers.

It is very evident that these stipulations, loyally observed would have sufficed as a solid basis for a common and fruitful action. But Austria-Hungary, in the summer of 1914, without coming to any agreement with Italy, without even giving her the least intimation, and without taking any notice of the counsels of moderation addressed to her by the Royal Italian Government, notified to Serbia the ultimatum of the 23rd July, which was the cause and the point of departure of the present European conflagration.

Austria-Hungary by disregarding the obligations imposed by the Treaty profoundly disturbed the Balkan status quo, created a situation from which she alone should profit to the detriment of interests of the greatest importance which her ally had so often affirmed and proclaimed.

So flagrant a violation of the letter and the spirit of the Treaty not only justified Italy's refusal to place herself on the side of her allies in a war provoked without previous notice to her, but at the same time deprived the alliance of its essential character and of its raison d'etre.

Even the compact of friendly neutrality for which the Treaty provides was compromised by this violation. Reason and sentiment alike agree in preventing friendly neutraility from being maintained when one of the allies has recourse to arms for the purpose of realising a programme diametrically opposed to the vital interests of the other ally, interests the safeguarding of which constituted the principal reason of the alliance itself.

Notwithstanding this, Italy exerted herself for several months to the reestablishment between the two States of these friendly relations which constitute the essential foundation of all cooperation in the domain of general policy.

With this aim and in this hope the Royal Government announced its willingness to come to an arrangement having for its basis the satisfaction in an equitable degree of the legitimate national aspirations of Italy and serving at the same time to reduce the disparity existing in the reciprocal position of the two States in the Adriatic.

These negotiations did not lead, however, to any appreciable result.

All the efforts of the Royal Italian Government met with resistance of the Imperial and Royal Government, which even

now, after several months, has consented only to admit the
special interests of Italy in Valona, and to promise an insuffi-
cient concession of territory in the Trentino, a concession
which in no way admits of the normal settlement of the situa-
tion, whether from the ethnological, the political or the mili-
tary point of view.

This concession, moreover, was to be carried into effect only
in an indeterminate epoch, namely not until the end of the war.
In this state of things the Italian Government must re-
nounce the hope of coming to an agreement, and sees itself
compelled to withdraw all its proposals for a settlement.

It is equally useless to maintain for the alliance a formal appearance which could only serve to dissemble the reality of continual mistrust and daily opposition.

For these reasons Italy, confident of her just rights, affirms and proclaims that she resumes from this moment her complete liberty of action, and declares as cancelled and as henceforth without effect her treaty of alliance with Austria-Hungary.74 On 21 April 1915 Austria, in reply to the above-mentioned Italian note, addressed a note 75 to the Italian Government which denied all the Italian charges, referred to above, and asserted that Italy's act of unilateral denunciation was invalid.

An analysis of the Austrian note of 21 April 1915 reveals that Austria did not consider the doctrine of unilateral denunciation of a violated treaty by an innocent party, which was invoked by Italy in her note of 3 May 1915 as contrary to international law. She questioned the right of Italy to invoke the doctrine only on the ground that violations of the Treaty as alleged by Italy in her note in fact had not occurred, and therefore she contended that Italy had not the right to apply this doctrine in releasing herself from the Treaty. Thus, Austria claimed that the Treaty was still subsisting despite Italy's unilateral act.

Italy rejected the Austrian note of 21 April 1915 and again declared in a communication of 23 May 1915 addressed to her representatives abroad that she was justified in unilaterally repudiating her obligations under the Treaty on the ground that Austria had violated it." On 24 May 1915 Italy, having denounced the Treaty, declared war against Austria and her allies.

The Prusso-American Treaty of Commerce and Navigation, 1 May 18287 77

On 1 May 1828 Prussia and the United States signed a treaty of commerce and navigation which came into effect on 14 March 1829. During the First World War the United States charged that Germany had violated the Treaty and Germany denied it. On 20 March 1917 Mr. Lansing, the United States Secretary of State, addressed a note to the Swiss Minister representing the German Government in Washington in which he stated:

74 Ibid., pp. 1317-1318. 75 Ibid., pp. 1319-1322. 76 Ibid., pp. 1322-1328.

"Mallory, op. cit., Vol. II, p. 1496.

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this Government is seriously considering whether or not the treaty of 1828 and the revised articles of the treaties of 1785 and 1799 have not been in effect abrogated by the German Government's flagrant violations of their provisions, for it would be manifestly unjust and unequitable to require one party to an agreement to observe its stipulations and to permit the other party to disregard them. It would appear that the mutuality of the undertaking has been destroyed by the conduct of the German authorities.78

It appears that President Wilson, although he in principle agreed with Mr. Lansing's opinion, did not deem it necessary or advisable for the United States to terminate the Treaty. He observed that "Germany's playing fast and loose with the obligations of this treaty, as of all others, affords, for us who are proud to observe obligations and would like to set an example, a sufficient ground for repudiating our own promises under it." 79 Consequently, no action was taken with respect to this Treaty.

The Japanese-American Agreement of 1907-08 80

In 1907-08 the United States and Japan exchanged a series of notes which resulted in the so-called "Gentlemen's Agreement," the main object of which was the regulation of Japanese immigration into the United States.

The United States Congress, on 26 May 1924, passed an immigration act 81 which in effect contravened certain main provisions of the Agreement.82 Prior to the passage of the act the Government of Japan and the Executive Branch of the United States Government had warned Congress that certain provisions of the proposed act would contravene the essentials of the Agreement. However, these warnings were of no avail.

On 13 May 1924 the Japanese Ambassador in Washington wrote to Mr. Hughes, the United States Secretary of State:

Unfortunately, however, the sweeping provisions of the new act, clearly indicative of discrimination against Japanese, have made it impossible for Japan to continue the undertakings assumed under the Gentlemen's Agreement. An understanding of friendly cooperation reached after long and comprehensive discussion between the Japanese and American Governments, has thus been abruptly overthrown by legislative action on the part of the United States.83

Having recognised the fact that Japan had faithfully observed her obligations under the Agreement 84 and that the Congressional act constituted a violation of the Agreement, Mr. Hughes, on 16 June 1924, wrote to the Japanese Ambassador, stating that as a consequence of

78 U.S. Foreign Relations, 1918, Supplement 2, p. 162.

70 See President Wilson to the Secretary of State Lansing, 8 May 1917. U.S. Foreign Relations, 1918, Supplement 2, pp. 1701.

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80 U.S. Foreign Relations, 1924, Vol. II, p. 374.

81 Ibid., p. 391.

82 Ibid., pp. 392, 396.

Ibid., p. 408.

88Ibid., p. 408.

the Congressional act Japan had the right to denounce the Agreement. He said:

It is provided in the Immigration Act that the provisions of Section 13 (c), to which you have referred, shall take effect on July 1, 1924. Inasmuch as the abstention on the part of the United States from such an exercise of its right of statutory control over immigration was the condition upon which was predicated the understanding of the Japanese Government contained in the Gentlemen's Agreement of 1907-08 with respect to the regulation of the emigration of laborers to the United States, I feel constrained to advise that this Government cannot but acquiesce in the view that the Government of Japan is to be considered released, as from the date upon which Section 13 (C) of the Immigration Act comes into force, from further obligation by virtue of that understanding.85

Statute of the Permanent Court of International Justice 86

In 1925 when the United States' adherence to the Permanent Court was discussed the question of whether a party to the Statute had the right, in the absence of a specific provision, unilaterally to terminate its obligations was raised in the United States. Mr. Olds, the United States Assistant Secretary of State, in a memorandum addressed to Senator Lenroot, stated:

There is no implied right in any one party to withdraw there-
from at will in the absence of specific provision for such with-
drawal by denunciation or otherwise or unless another party
to the treaty has violated it so substantially as to justify its
termination. While there can be no question that the United
States would have the power to withdraw from the Perma-
nent Court at any time, still distinction between the power to
take such action and the propriety thereof can be clearly
drawn. I feel therefore that to avoid the possibility of further
misunderstanding, and particularly to strengthen the regard
which should be had for international agreements, an appro-
priate reservation should be incorporated in the resolution by
which the United States adheres to the Statute of the Perma-
nent Court recognising and reserving the right of the United
States to withdraw from the Court.87

Although the memorandum appeared to be uncertain in regard to the implied right of withdrawal from the Permanent Court, it asserted the existence of the right of an innocent party unilaterally to denounce or withdraw from the Permanent Court on the ground of prior serious breaches of obligations on the part of another party.

Ibid.

So Malloy, op. cit., Vol. IV. p. 5646 ff.

Green Haywood Hackworth, Digest of International Law (Washington: Government Printing Office, 1943), Vol V, pp. 345–346.

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