« SebelumnyaLanjutkan »
tion in 1870 of the provisions of the treaty of Paris for the neutralization of the Black Sea, it was contended among other things by the Russian government that the treaty with respect to these provisions had been violated by the repeated entrance of men-of-war into the Straits. An investigation showed that in the course of the fifteen years since its conclusion, men-of-war had been allowed to pass through the Straits not in strict conformity to the treaty as follows: in 1862, one British; in 1866, one American; in 1868, two American, two Austrian, one French and one Russian; and in 1869, one Prussian.' It may be doubted that the Russian government would have asserted a right of denunciation on this ground alone.' "The admission of a few isolated ships at different times was not an act in itself calculated,” says Hall, “to endanger the objects of the treaty, viz., the settlement of Eastern affairs and the rendering of security to Turkey, or to impair the efficacy of the safe-guards given to Russia by way of compensation for the loss of naval power."; Prior to the signing of the treaty of London, by which the onerous obligations were for equitable reasons, independently of the questions raised as to the right of denunciation, modified, the plenipotentiaries of Austria-Hungary, Germany, Great Britain, Italy, Russia and Turkey in conference, January 17, 1871, entered into a protocol which declared “that it is an essential principle of the law of nations that no power can free itself from the engagements of a treaty, nor modify the stipulations thereof, except with the assent of the contracting parties by means of an amicable arrangement.". The
*Hertslet's, Map of Europe by Treaty, vol. iii, p. 1895 note. See ibid., p. 1892 et seq.
* International Law (4th ed.), p. 371. • Brit. and For. State Papers, vol. lxi, p. 1198.
principle was laid down by Grotius that “every article of the agreement has the force of a consideration,”: and by Vattel that the several articles of the same treaty cannot be considered “as so many distinct and independent treaties."': Without doubt, every promise made by one party “may go to make up the consideration in return for which essential parts of the agreement are conceded or undertaken,"; and it is not for the party committing the infraction to determine what is, or is not, essential in the eyes of the others; yet it is conceivable that the several articles might be so separated and mutually reciprocal that even the aggrieved party could show no relation between the article violated and others embodied in the same general treaty. A standard is to be sought which, in compelling strict observance, will not at the same time encourage the seeking of pretexts for release from onerous treaty obligations. “There can be no question,” to quote again from Hall, whose succinct expressions can seldom be improved by recasting, “that the breach of a stipulation which is material to the main object, or if there are several, to one of the main objects, liberates the party other than that committing the breach from the obligations of the contract; but it would be seldom that the infraction of an article which is either disconnected from the main object, or is unimportant, whether originally or by change of circumstances, with respect to it, could in fairness absolve the other party from performance of his share of the rest of the agreement, though if he had suffered any appreciable harm through the breach he would have a right to exact reparation and
an end might be put to the treaty as respects the subjectmatter of the broken stipulation."!
(e) By Agreement A treaty repeals all pre-existing treaties between the same parties inconsistent with it. As nations may by mutual agreement annul treaties binding on them, so a provision may be, and often is, inserted in the treaty itself, by which the contracting parties agree that it may be terminated by a notice given by the one to the other.
In the United States some doubt has existed as to what body is authorized to give such notice. On the recommendation of President Polk, Congress passed a joint resolution, approved April 27, 1846, authorizing the President, at his discretion, to give notice to the British government of an intention to terminate the treaty of August 6, 1827, relative to the joint occupation of Oregon. Although notice was duly given, the treaty was as a matter of fact superseded, before the expiration of the time required by the treaty as sufficient notice, by a new treaty signed June 15, 1846. Ten years later the question was discussed at some length in the Senate in connection with the proposed termination of the treaty of commerce and navigation of April 26, 1826, with Denmark. President Pierce had, in his annual message to Congress, December 4, 1854, indicated his wish for authority to give the required notice for its termination.3 The Senate in executive session, March 3, 1855, unanimously passed such a resolution. Acting under its authority, the Executive caused the notice to be given,
'Hall, p. 369.
9 Stat. at L., 109. •Richardson's Messages, vol. v, p. 279. • Ex. Journal, vol. ix, p. 430.
April 14, 1855, to the government of Denmark. Subsequently the authority of the resolution was questioned by Mr. Sumner in the Senate, avowedly on the ground that it would be equivalent to a repeal of the “supreme laws of the land” by the action of the Senate alone.' The Senate Committee on Foreign Relations, to which the matter was referred, made a full report, April 7, 1856, supporting the authority of the resolution.3 The convention was considered by the Executive as terminated on April 15, 1856, pursuant to the notice, but by Article V of the treaty of April 11, 1857, it was, with the exception of the fifth article, renewed. The following treaties have subsequently been terminated pursuant to notice given by the government of the United States, in each case on the authority of a joint resolution: June 5, 1854, with Great Britain; July 17, 1858, with Belgium; and Articles XVIII-XXV inclusive, and Article XXX of the treaty of May 8, 1871, with Great Britain. It should, however, be noted that in the case of the treaty of 1854 and the articles of the treaty of 1871, treaty provisions were terminated which had been carried into effect by Congressional legislation. So far as the treaty is a mere compact between nations, or so far as it operates ipso facto as a law of the land, it would seem that the President should have the power, with the concurrence of two-thirds of the Senate, to give notice of its termination. There is no doubt that he may in the same way replace it with a new treaty.
Richardson's Messages, vol. v, p. 334.
* The committee observed, however, that no legislation had been necessary to carry the treaty under consideration into effect. Compilation of Reports of Sen. Com. on For. Rel., vol. viii, p. 108.
•13 Stat. at L., 566; 18 Stat, at L., 287; 22 Stat. at L., 641.
A notice for the termination of the agreement with Great Britain of 1817 relative to vessels of war on the Great Lakes was given, pursuant to the reservation of that right, on November 23, 1864, by the Executive. A resolution with a view to such termination had during the preceding session of Congress passed the House, but had failed of consideration in the Senate. Subsequently to the giving of the notice, a joint resolution was passed by Congress, and approved February 9, 1865, which "adopted and ratified” the notice “as if the same had been authorized by Congress.” Notwithstanding this legislative sanction the notice was before the expiration of the required six months withdrawn by the Executive; and the arrangement has subsequently been recognized by both governments as subsisting.' The notice given March 23, 1899, to the Swiss government by the Department of State of the intention of this government to terminate Articles VIII-XII of the treaty of November 25, 1850, in accordance with the provisions of the treaty, does not appear to have had any other than Executive authority.”
The time specified in the treaty that must elapse between the giving of the notice and the final termination of the treaty, has in the various notices given by the United States been reckoned from the date on which the notice was presented at the foreign office of the other contracting party.)
(f) The Function of Congress Madison in a letter to Pendleton, January 2, 1791,
' House Doc., 471, pp. 28–34, 56th Cong., ist sess. : For. Rel., 1899, pp. 754-7.
*See also For. Rel., 1865, pt. i, p. 359; 1874, p. 65; 1899, p. 757; 1883, p. 435.