cause or occasion of the war. The terms may be just; more often the consciousness of their injustice is obscured in the victor's mind by his excited feelings; but in any case the genius of law does not inhabit a temple shared by the god of battles and only returns when he has withdrawn from it."1 124. Abrogation or Modification of Treaties.-Treaties are abrogated or materially modified by the withdrawal by notice of one party from conditions or stipulations of a treaty. Something can be said as to such action on both sides, more especially when circumstances have in the course of time materially changed the conditions. Although the obligations of a treaty may be perpetual as to time limitation, it may be easily recognized that changes of attendant circumstances may make a change or relaxation almost imperative. T. J. Lawrence sagely remarks upon this subject that it is clear that perpetual treaties cannot remain unchanged forever. He goes on to say that "no one now proposes to go back to the treaties of Münster or of Utrecht, and few would consider it desirable to return to the stipulations enacted at Vienna after the downfall of the last Napoleon. As circumstances alter, the engagements made to suit them go out of date. When and under what conditions it is justifiable to disregard a treaty is a question of morality rather than law. Each case must be judged on its own merits. It is impossible to lay down a hard and fast rule, such as was embodied at the conference held at London in 1871 to settle the Black Sea question, in the words: 'It is an essential principle of the law of nations that no power can liberate itself from the engagements of a treaty or modify the stipulations thereof unless with the consent of the contracting powers by means of an amicable arrangement.' This doctrine sounds well, but a little consideration will show that it is as untenable as the lax view that would allow any party to a treaty to violate it on the slightest pretext. If it were invariably followed, a single obstructive power would have the 1 Westlake, "Int. Law," vol. II, pp. 32–35. right to prevent beneficial changes that all the other states concerned were willing to adopt. It would have stopped the unification of Italy in 1860 on account of the protest of Austria, the consolidation of Germany in 1866 and 1871 because of the opposition of some of the minor states."1 A recent case of the violation of the obligations of a treaty occurred when Austria-Hungary notified the European powers of the annexation to her domain of the provinces of Bosnia and Herzegovina, which had been governed by her, according to the terms of the treaty of Berlin, for thirty years. Various provisions of this treaty had been violated, and by means of a sudden revolution Turkey had become, in name at least, a constitutional state. It was evident from these changes that the order of things at the time of the making of the treaty of Berlin no longer existed. The action was not so blameworthy as the methods. The state of the affairs at the time of the signing of the Clayton-Bulwer treaty had also materially changed, but the Hay-Pauncefote treaty, by its negotiation and supersession, met this fact properly and honorably. Austria-Hungary, however, ignored the Berlin treaty altogether in enlarging her position with respect to these provinces by the change from administrative to sovereign rights, and thus, in a way, the peace of Europe was threatened. Finally, she was obliged to ask for and obtain the consent of the European powers separately and not by the proper means of a conference or a new treaty. TOPICS AND REFERENCES 1. Interpretation of Treaties Phillimore, 3d ed., vol. II, chap. VIII, 94-126. Crandall's "Treaties," etc., 217-230. Oppenheim, 2d ed., vol. I, 582–7. 2. Most-Favored-Nation Clause Moore's "Digest," vol. V, 257-285. Whitney v. Robertson, 1887, 124 U. S. Reports, 190. Hornbeck, "The Most Favored Nation Clause," in 3 A. J. I. L., 1910, 395, etc. 1 Lawrence's "Principles," 4th ed., pp. 327-8. 3. Termination of Treaties Butler, "Treaty Making Power of the United States." Crandall, "Treaties," etc., 231-253. Moore's "Digest," vol. V, 319-371. 4. Effect of War upon Treaties Moore's "Digest," vol. V, 372-386. Westlake, "International 5. Abrogation or Modification Without Mutual Consent Moore's "Digest," vol. V, 356-363. Oppenheim, 2d ed., vol. I. 570-580. Lawrence's "Principles," 4th ed., 326-331. CHAPTER XV MEDIATION. ARBITRATION. ARBITRAL TRIBUNALS AND CONFERENCES 125. Mediation.-Higgins in his valuable work on The Hague conferences says that "there is, according to many writers on international law, a theoretical difference between mediation and good offices. . . ." It is, however, conceded that both consist in a friendly interposition of a third power to reconcile differences either in a controversy that threatens to lead to war or in case of actual hostilities. In Convention No. I of the two Hague conferences for the pacific settlement of international disputes, the articles contained therein numbered from No. 2 to No. 8, inclusive, cover the ground of mediation under the head of good offices and mediation.1 This entire convention was ratified by the Senate of the United States on April 2, 1908, with the reserve and declaration which reads as follows: "Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign state, nor shall anything contained in the said convention be construed to imply a relinquishment by the United States of its traditional attitude toward purely American questions. "Resolved further, as a part of this act of ratification, that the United States approves this convention with the understanding that recourse to the permanent court for the settlement of differences can be had only by agreement thereto 1See Appendix II. through general or special treaties of arbitration heretofore or hereafter concluded between the parties in dispute, and the United States now exercises the option contained in Article 53 of said convention to exclude formulation of the 'compromis' by the permanent court and hereby excludes from the competence of the permanent court the power to frame the 'compromis' required by general or special treaties of arbitration concluded or hereafter to be concluded by the United States, and further expressly declares that the 'compromis' required by any treaty of arbitration to which the United States may be a party shall be settled only by agreement between the contracting parties, unless such treaty shall expressly provide otherwise." This convention covers the ground of both mediation and arbitration and gives the full definition of a compromis, which is the preliminary agreement covering the nature and limits of the controversy and indicating the procedure and general rules of the proceedings of the negotiators or arbitral body. The articles of the convention as to mediation are as follows: "Article 2. In case of serious disagreement or dispute, before an appeal to arms, the contracting powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers. "Article 3. Independently of this recourse, the contracting powers deem it expedient and desirable that one or more powers, strangers to the dispute, should, on their own initiative and as far as circumstances may allow, offer their good offices or mediation to the states at variance. "Powers strangers to the dispute have the right to offer good offices or mediation even during the course of hostilities. "The exercise of this right can never be regarded by either of the parties in dispute as an unfriendly act. "Article 4. The part of the mediator consists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the states at variance. |