lves by belligerent States. The same is true of the special obligaons arising from the said treaties, conventions and agreements. ARTICLE 2. War, however, automatically terminates:

1. Agreements of international associations, treaties of protection, ntrol, alliance, guaranty; treaties concerning subsidies, treaties tablishing a right of security or a sphere of influence, and, genally, treaties of a political nature;

2. All treaties, the application or the interpretation of which all have been the direct cause of the war, in consequence of the ficial acts of either of the governments before the opening of >stilities.

ARTICLE 3. In applying the rule set forth in Article 2, account ust be taken of the contents of the treaty. If, in the same act, cur clauses of different kinds, only those shall be considered anilled which come under the categories enumerated in Article 2. Then, however, the treaty is of the character of an indivisible act, terminates as a whole.

ARTICLE 4. The treaties which remain in force and the carrying it of which is still, in spite of hostilities, practically possible, shall observed as in the past. Belligerent States may not disregard em except to the degree and for the time required by the necessities f war.

ARTICLE 5. Treaties which have been concluded for the contingency f war are not covered by Articles 2, 3 and 4.

ARTICLE 6. Aside from the responsibility that would be incurred. the violation of these rules, they should serve to interpret the lence of and to supply the omissions in a treaty of peace. In default f a formal clause to the contrary in a peace treaty, it shall be ecided:

1. That treaties affected by the war are definitely annulled;

2. That treaties not affected by the war, whether suspended or not uring the progress of hostilities, are tacitly confirmed;

3. That treaties the clauses of which conflict with the contents of le peace treaty are nevertheless implicitly abrogated;

4. That the abrogation of a treaty, express or tacit, has no retrotive effect.

ARTICLE 7. The provisions of Articles 1 to 6 shall apply, in the elations between belligerent States, to treaties concluded between hem and a third State, with the following reservations.

ARTICLE 8. When the obligations which bind belligerent States in heir relations with each other have the same object as their conacts with a third state, they shall be carried out in the interest of he latter. Thus collective treaties of guaranty shall remain in force 1 spite of war between two of the contracting States.

ARTICLE 9. Collective agreements shall remain in force in th relations of each of the belligerent States with the third contracting State.

They may not be altered by a treaty of peace to the detriment of the third contracting State, without the participation or the consent of the latter.

ARTICLE 10. Treaties concluded between a belligerent State and a third State are not affected by the war.

ARTICLE 11. In default of a formal clause to the contrary or of a provision leaving no doubt as to the intention of the parties, collective treaties relating to the law of war apply only if the belligerents are all contracting parties.

Institute (1912), pp. 172-174.

Abrogation of treaties by war.

It was at one time an international custom that the Belligerents should, at the breaking of War, make a public and solemn proclamation that the obligations of Treaties between them had ceased. That custom has become obsolete. In the place of it has arisen the general maxim, that War, ipso facto (von selbst), abrogates Treaties between the Belligerents. The questions which present themselves for our consideration are, first, whether this proposition be true in all its latitude, or whether it requires any-and if any, what-limitations, before it can be enunciated as one of the admitted and incontrovertible principles of International Jurisprudence?

Secondly, if it be universally, or with certain limitations, true, that Treaties annulled by War are revived by the return of Peace without express stipulations to that effect?

The general maxim must manifestly be subject to limitation in one case, namely, in the case of Treaties which expressly provide for the contingency of the breaking out of War between the contracting parties and the Judges of the North American United States were well warranted in saying, "We are not inclined to admit the doctrine urged at the bar, that Treaties become extinguished, ipso facto, by War between the two governments, unless they should be revived by an express or implied renewal on the return of Peace. Whatever may be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms in relation to this subject, we are satisfied that the doctrine contended for is not universally true. There may be Treaties of such a nature, as to their object and import, as that War will put an end to them; but where Treaties contemplate a permanent arrangement of territorial and other national rights, or which in their terms are meant to provide for the event of an intervening War, it would be against every principle of just interpretation to hold them extinguished by the event of War.

If such were the law, even the Treaty of 1783, so far as it fixed our imits and acknowledged our independence, would be gone, and we hould have had again to struggle for both upon original revolutionry principles. Such a construction was never asserted, and would be so monstrous as to supersede all reasoning."

Some writers on Public and International Law go further, and say that War abrogates only those Treaties the existence of which is incompatible with Belligerent relations.

Phillimore, vol. 3, pp. 793-795; The Society, &c., v. New Haven, 5
Curtis, 493.

Effect of peace as to revival of treaties.

Mr. Wildman has expressed an opinion that "all engagements subsisting between Belligerents at the commencement of hostilities are revived by a Treaty of Peace, so far as they are consistent with its provisions."

This opinion appears to the writer of these pages to be at variance with the true doctrines of International Law, and especially with those derived from two of the sources of this jurisprudence, viz., the conclusions of accredited writers and the practice of States.

The opinion has arisen partly (1) from a misapprehension of the meaning of a passage in Vattel, partly (2) from misapplying judicial dieta, uttered with respect to Private Contracts, to Public Treaties; partly (3), and perhaps chiefly, from not discriminating between those parts of a Treaty which contained a final adjustment of a particular question, such as the fixing a disputed boundary or ascertaining any contested right or property; or which incorporated by the common consent, express or tacit, of all States concerned in its assertion and maintenance, a great public principle into the International Code. That principle once so incorporated, does not require reiteration in subsequent Treaties, and, unless expressly repudiated, revives with Peace, or rather remains unaffected by War waged upon grounds unconnected with it.

(1) The passage in Vattel is taken from the 42nd Section of his Fourth Book. "It is" (he says) "of great importance to draw a proper distinction between a new War and the breach of an existing Treaty of Peace; because the rights acquired by such a Treaty still subsist notwithstanding the new war: whereas they are annulled by the rupture of the Treaty on which they are founded. It is true, indeed, that the party who had granted those rights does not fail to obstruct the exercise of them during the course of the War as far as lies in his power; and he even may, by the right of arms, wholly deprive his enemy of them, as well as he may wrest from him his other possessions. But in that case he withholds those rights as things taken from the enemy, who, on a new Treaty of Peace, may urge the

restitution of them. It often happens, when nearly equal success has attended the arms of both parties, that the Belligerents agree mutually to restore their conquests and to replace everything in its former state. When this is the case, if the War in which they were engaged was a new one, the former Treaties still subsist."

But of what is the writer speaking? Not of the effect of War generally upon Treaties-not whether existing public covenants are dissolved by hostilities-but whether the dispute between the Belligerents arises out of an alleged breach of an existing public covenant, or whether it arises out of a new cause of offence, e. g., a violation of general International Rights, irrespective of any positive convention subsisting between the Belligerents.

In the passage under discussion Vattel is not considering Treaties, in which it is agreed that there shall be either an express renewal, or a tacit revival, of former Treaties, irrespective of the new convention between the parties. He is supposing that the Belligerents have agreed to adopt the status quo ante bellum as the adjustment of their quarrel. In order to ascertain what that status was, the relations of the parties before the War broke out must be considered, and whether, therefore, independently of this War, the former Treaties between the parties were in existence. Now, if the War was a neir War, that is, a War on account of the violation of some general right and not of a positive convention, then, previously to the War, the former Treaties were unbroken, and then, by the engagement of both parties to observe the status quo ante bellum, these Treaties are considered as still existing. If, on the other hand, former Treaties have been broken, and the War has been waged upon this account, then a specific renewal of the covenants of these former Treaties would be necessary. In this latter, however, as in the former case, the belligerents would have agreed to adopt the status quo ante bellum.

This explanation renders Vattel consistent with himself, and reconciles the passage which has been commented upon with that contained in the 175th Section of his Third Book, in which he says that "the conventions made with a nation are broken or annulled by a War arising between the two contracting parties, either because their compacts are grounded on a tacit supposition of the continuance of Peace, or because each of the parties being authorized to deprive the enemy of what belongs to him, takes from him those rights which he had conferred on him by Treaty." Vattel, it will be seen, does not speak of Treaties being suspended, but of their being broken and annulled by War. To give a new occasion for War and to break the Peace are, as Grotius observes, different things. The difference between the two is important, and has a double bearing; first, as to the penalty incurred by the breaker of the Peace; and, secondly, as to how far his

act relieves the other party from his engagement. "Peace," he says, "may be broken in three ways: first, by doing what is at variance with the intrinsic character of every Peace (faciendo contra id quod omni paci inest); secondly, by violating the express conditions of the Peace; thirdly, by acting contrary to that which ought to be understood from the particular nature of each Peace (contra id quod ex pacis cujusque naturâ intelligi debet).

(2) The misapplication of the doctrine of International Law respecting the revival after Peace of private contracts, the operation of which is suspended during War, to the case of public Treaties, has occasionally led persons into an error on this point.

The supposed analogy between the public and the private contract is unsound. It is the State and not the individual who wages War. The contracts between the individuals of Belligerent States are necessarily suspended during the War of these States, but are not annulled: no precedent can therefore be drawn from the tacit renewal of these private relations on the return of Peace, to found the argument for the tacit renewal of public relations. Judicial decisions of Municipal Courts of Law upon the former are without bearing upon the latter question.

Phillimore, vol. 3, pp. 795–799; Wildman, vol. 1, p. 176; Grotius, liv. iii, c. xx. s. 27.

The language of Lord Stowell is strong upon this point, though his opinion is incidentally or parenthetically expressed. He speaks of Treaties being extinguished by War.

Phillimore, vol. 3, p. 799; The Frau Ilsabe, 4 C. Rob. 64.

Discussion between United States and Great Britain.

This question was much discussed between England and the United States of North America during the negotiation at Ghent in 1814, England considering that certain Rights of Fishery accorded by her to the United States by the Treaty of 1783 had been abrogated by subsequent War, and giving notice that she did not intend to renew them.

The United States contended, on the other hand, that the Treaty of 1783 was not one of those which by the common consent and understanding of civilized nations are considered as annulled by a subsequent War between the parties.

It is to be observed that England did not wholly traverse this allegation, but denied the application of the principle to the provision relating to Fisheries: the treaty of 1783, like many others, she said, contained provisions of different character, some in their own nature irrevocable, and others merely temporary; the provision in question was among the latter.