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to permanent conditions, as treaties of cession, boundaries, etc. The treaty of peace between China and Japan, May 8, 1895, Article 6, asserts that, “ All treaties between Japan and China having come to an end in consequence of the war, China engages, immediately upon the exchange of ratifications of this act, to appoint plenipotentiaries to conclude, with the Japanese plenipotentiaries, a treaty of commerce and navigation, and a convention to regulate frontier intercourse and trade.” In the war between the United States and Spain the royal decree issued by Spain, April 23, 1898, Article I., asserts that “ The state of war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October, 1795, the protocol of the 12th January, 1877, and all other agreements, compacts, and conventions that have been in force up to the present between the two countries.” The declaration of war also gives special effect to certain treaties and conventions, as to those in regard to care of wounded, neutral commerce, etc.
(g) A treaty is voidable when, (1) it is concluded in excess of powers of contracting parties, (2) when it is concluded because of stress of force upon negotiators or because of fraud, (3) when the conditions threaten the self-preservation of the state or its necessary attributes. Hall gives as the test of voidability the following : “ Neither party to a contract can make its binding effect dependent at his will upon conditions other than those contemplated at the moment when the contract was entered into, and on the other hand a contract ceases to be binding so soon as anything which formed an implied condition of its obligatory force at the time of its conclusion is essentially altered.”1 The condition rebus sic stantibus is always implied.
(h) A treaty may be terminated by the simple act of denunciation when this right of denunciation is specified in the treaty itself, or when the treaty is of such a nature as to be voidable by an act of one of the parties. “ There can be no question 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 end might be put to the treaty as respects the subject-matter of the broken stipulation.”2
1 Hall, $ 116, p. 367.
2 Ibid., p. 369.
AMICABLE SETTLEMENT OF DISPUTES AND NON
88. THE AMICABLE SETTLEMENT OF DISPUTES.
(a) Diplomatic negotiation.
§ 88. The Amicable Settlement of Disputes It is now generally admitted that in the settlement of international disputes war should be regarded as a last resort. Other means of amicable settlement should be exhausted before any measures of force are tried. Among these amicable means the most common are diplomatic negotiations, the good offices or friendly mediation of a third state, conferences and congresses, and arbitration. 1
1 See Holls's “ Hague Peace Conference," 176 et seq.
(a) The settlement of disputes by diplomatic negotiation follows the ordinary course of diplomatic business, whether committed to regular or spocial agents. The larger number of disputed questions are settled by diplomatic negotiation.
(6) In the case of disputes not easily settled by diplomatic negotiations, a third state sometimes offers its good offices as mediator. Its part is not to pass on a disputed question, but to devise a means of settlement. The tender involves the least possible interference in the dispute, and is regarded as a friendly act. Either disputant may decline the tender without offense. One of the disputants may request the tender of good offices or of mediation. The distinction between these is not always made in practice. Ordinarily good offices extend only to the establishing of bases of, and the commencement of, the negotiations. The more direct work of carrying on the negotiations is of the nature of mediation. Either party may at any time refuse the mediator's offices.
(c) The Hague Convention provides for an International Commission of Inquiry to facilitate the solution of differences which diplomacy has not settled by elucidating the facts by means of an impartial and conscientious investigation.” “It leaves the conflicting Powers entire freedom as to the effect to be given to its statement.”i
(d) The settlement of questions liable to give rise to disputes by conferences and congresses is common, and implies a meeting of representatives of the interested parties for consideration of the terms of agreement upon which a question may be adjudicated. In
* Appendix, p. 448.
general, the conclusions of a congress are more formal and are regarded as having more binding force than those of a conference, though this distinction is not always made. States not directly interested may participate in conferences or congresses, and sometimes as mediators play a leading part.
(e) Arbitration involves an agreement between the disputants to submit their differences to some person or persons by whose decision they will abide. Arbitration has been common from early times. The Hague Convention for the Pacific Settlement of International Disputes 1 proclaimed for the United States, November 1, 1901, provides that “ The Signatory Powers undertake to organize a permanent Court of Arbitration, accessible at all times . . . competent for all arbitration cases, unless the parties agree to institute a special Tribunal,” for the general organization of the Court at the Hague, for the procedure, and for an award without appeal, unless the right to revision be reserved in the “ Compromis.” Other powers may adhere, and any contracting power may withdraw its adherence one year after notification. The United States gave its adherence under reservation in regard to the Monroe Doctrine.
Of about thirty cases of arbitration during the nineteenth century, the decision in one case was rejected by both parties to the dispute, and in one case rejected by one of the parties. In several other instances one party has refused to submit to arbitration questions readily lending themselves to such settlement, even though requested by the other party.2
1 Appendix X., pp. 445 et seq.
2 See, on this entire subject, Moore's “International Arbitration”; Holls's “ Hague Peace Conference," 176–305.