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tile relations, Vattel says, in connection with the general proposition that war annuls treaties, “Yet here we must except those treaties by which certain things are stipulated in case of a rupture-as, for instance, the length of time to be allowed on each side for the subjects of the other nation to quit the country—the neutrality of a town or province insured by mutual consent, etc. Since, by treaties of this nature, we mean to provide for what shall be observed in case of a rupture, we renounce the right of cancelling them by a declaration of war.": Nations from an early day have entered into such treaty stipulations; and it may well be asked what is their value, unless they are binding on the happening of the contingency for which they were designed. In a decree of the Spanish government of April 23, 1898, on the outbreak of hostilities with the United States, it was declared that the state of war terminated all agreements, compacts and conventions that had been in force up to that time between the two countries. In Article XIII of the treaty of 1795, which treaty was specifically mentioned in the decree, it was stipulated that in case of war one year after its proclamation should be allowed to the merchants in the cities and towns where they resided for collecting and transporting their goods and merchandise. Although the attention of the Spanish government was called to this article, it expressed an unwillingness to make any exception to the decree already issued, but offered to enter into a special agreement for the provisional application of the stipulation in question. The United States declined the proposal on the ground that the provision being expressly applicable to war between the contracting parties was not abrogated by it. It is difficult to
Bk. jii, ch. x, sec. 175.
•For. Rel., 1898, p. 774.
s Toid., p. 972.
perceive any greater obligation on the part of belligerents to observe a special stipulation, entered into after the outbreak of hostilities, than that which results from engagements entered into previously, solely with a view to such an outbreak.
Treaties of alliance are necessarily dissolved by the outbreak of
of war between the contracting parties. Agreements regulating the commercial and social intercourse between them are suspended during hostilities, if for no other reason, because the hostile relations render the parties incapable of executing them. also on the ground that a belligerent has a right to deprive his enemy of property during war, he may withhold privileges conferred by the treaty.' On the question whether treaties of this character are merely suspended during the war and revive on return of peace, or are definitively terminated, writers on international law are not agreed. The practice of nations tends rather to negative than to support the doctrine of their ipso facto revival. The treaty of peace signed February 2, 1848, at the close of the Mexican war, expressly “revived "the treaty of commerce and navigation concluded April 5, 1831, with the exception of the additional article thereto. In the treaty of Paris of March 30, 1856, following the Crimean war, it was expressly stipulated that until the treaties or conventions existing before the war between the belligerent powers had been renewed or replaced by
"Vattel, bk. iii, ch. x, sec. 175.
'Calvo, vol. iv, scc. 1931; vol. v, sec. 3152. T. A. Walker, Science of International Law, p. 327. Lawrence (T. J.), pp. 311, 313. Heffter, secs. 181, 182. Bonfils, sec. 860. Hall, p. 404. Halleck, vol. i, p. 323.
Article XVII. See in this connection Richardson's Messages, vol. iv, p. 537
fresh agreements, trade should be carried on in accordance with the regulations in force before the war; and the subjects of the respective parties should in other matters receive most-favored-nation treatment." The treaty of Zurich signed November 10, 1859, between Austria, France and Sardinia confirmed as between Austria and Sardinia all treaties in force at the outbreak of the war not incompatible with the new treaty. As between Austria and France no such confirmation was stipulated for. In the treaty of peace between Austria, Prussia and Denmark signed at Vienna October 30, 1864, all treaties concluded before the war not abrogated or modified by the treaty were “re-established in their vigour."3 The treaty of peace between Austria and Prussia signed at Prague August 23, 1866, provided that all the conventions concluded between the contracting parties before the war were thereby again brought into force, so far as by their nature they had not lost their effect by the dissolution of the relations of the Germanic Confederation. In the treaty of Frankfort of May 10, 1871, at the close of the Franco-Prussian war, it was agreed that, the treaties of commerce with the different States of Germany “having been annulled by the war," the governments of the two countries would base their
1 Art. XXXII. In the conference on March 25, 1856, Count Walewski had observed that the state of war having invalidated the treaties which had existed between Russia and the belligerents, it was proper to insert a provisional stipulation as to the commercial relations of the parties. Brit. and For. State Papers, vol. xlvi, pp. 17, 99.
* Art. XVII.
* Hertslet's Map of Europe by Treaty, vol. iii, p. 1631. See for renewal of treaties between Prussia and various German states by special stipulations in treaties of peace, ibid., pp. 1703, 1708, 1713, 1725, 1731,
commercial relations on reciprocal treatment of the mostfavored-nation. The article provided further that the conventions of navigation, and those relative to service of international railroads, and for the reciprocal protection of works of art, should be revived." An additional convention signed December 11, 1871, revived, with reservations, treaties existing before the war. In the treaty of San Stefano between Russia and Turkey, signed March 3, 1878, it was provided that all treaties of commerce and navigation, and those relative to the jurisdiction and position of Russian subjects within Turkish dominions, and which had been abrogated by the state of war, should be renewed so far as compatible with the treaty. The treaty of peace between China and Japan signed April 17, 1895, recognized that all treaties between the two had, “in consequence of the war,” come to an end. The contracting parties engaged to appoint immediately upon the exchange of ratifications plenipotentiaries to conclude new treaties of commerce and navigation. During the peace negotiations between the United States and Spain at Paris, the American commissioners, acting under their instructions, proposed that all previous treaty stipulations between the two countries that were not already executed or obsolete should "be held to continue in force."'s The Spanish commissioners rejected the proposal on the ground that the determination of the question what treaties were obsolete would involve a more extended examination than the commission was in a position to give, adding, however, that this did not imply that the two govern
"Art. XI. * Art. XVIII. * Art. XXIII. . Art. VI.
.Sen. Doc., 148, p. 7, 56th Cong., and sess. Sen. Doc., 62, pp. 249, 254, 55th Cong., 3rd sess.
ments might not take up the subject themselves. The American commissioners further urged the renewal of the articles on extradition, trade-marks and copyright, and proposed to revive them temporarily by a modus vivendi, but this proposition was also rejected. Accordingly no provision was inserted in the peace for the renewal of treaties. A new general treaty of amity and commerce has been concluded, Article XXIX of which declares that all treaties and agreements between the United States and Spain “prior to the treaty of Paris shall be expressly abrogated and annulled” with the exception of the claims convention of February 17, 1834, “which is continued in force by the present convention." On the part of the United States the privilege of the protection of copyright extended to Spanish subjects by the proclamation of July 10, 1895, although suspended during the war, was continued upon the proclamation of the treaty of peace. This fact having been brought to its attention, the Spanish government in a note under date of November 18, 1902, declared that the agreement was on its part re-established and put into renewed operation.
(d) Infractions The difficulty of compelling specific performance, or perhaps of obtaining pecuniary compensation in mitigation of damages, by means other than those which, while they tend to produce hostile relations, do not assure reparation to the innocent party, renders it even more necessary and equitable, than in the case of private contracts, that upon a breach of a treaty the continuance of the obligation should be made dependent upon the will of the party faithfully performing. But what constitutes a breach of this character? In defense of the denuncia