of treaties oaths, hostages, pledges, occupation of territory,29 and treaties of guarantee the latter is the only one still generally in use.

303. Termination of Treaties. — Treaties may become extinct through the expiration of their time limit, or by the performance of the specific object of the contract. They may be dissolved by mutual consent, an express renunciation of advantages, a voluntary release by one of the contracting parties, or by denunciation or withdrawal by notice in accordance with the terms of the agreement. They may become void upon the cessation of conditions essential to the continuance of the treaty or upon the extinction of the subject 30 or object of the treaty, if found legally, physically, or morally impossible of execution; or, in certain cases, upon the outbreak of war. They may become voidable, i.e. subject to annulment or cancellation, through war, a subsequent change of status of international personality on the part of one of the contracting parties, if their terms are inconsistent with subsequent International Law (as, e.g. in the case of the abolition of privateering), or if any of the implied conditions 31 under which the treaty has been made are violated. Such implied conditions are that the treaty shall be observed in its essentials 32 by both parties, that it shall remain consistent with the fundamental rights of independence and self-preservation, and that there shall be no vital change in the circumstances or conditions under which the treaty was made. The clause rebus sic stantibus is an implied condition in all treaties.33

29 Temporary occupation of territory is still occasionally employed to secure the payment of a debt or the exaction of a war indemnity. The last case of a treaty secured through hostages was that of Aix-la-Chapelle in 1748.

30 For the effect upon treaties of the "Succession of States," see supra, §§ 129– 130, pp.; for the effects of war, see infra, § 344.

This rule is thus stated by Hall (p. 342 of 6th ed.): "Neither party to a contract can make its binding effect dependent at 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." *This is the view of Hall (543 ff.) and a minority of the publicists. For the opinion of the majority that there is no distinction in this respect between the essential and non-essential parts of a treaty, and that the breach of any portion of the agreement renders the whole compact voidable, see 1 Oppenheim, § 549.

This is the view of the great majority of publicists, and it is in accord with international practice. For examples drawn from the practice of the United States, see Foster, Practice of Diplomacy, ch. 15; and 5 Moore, Digest, § 772.

BIBLIOGRAPHY

Treaties. Amos, Remedies for War, 173-188; 12 Annuaire (1892), 226-257; Appert, in 26 J. I. P. (1899), 433 ff.; * Bernard, "Obligation of Treaties," in Lectures on Diplomacy (1868), Lect. IV; Bluntschli, Arts. 402-461; *Bonfils (Fauchille), Nos. 816-929; Bulmerincq, in 1 Marquardsen, 88 53-64; *Butler, Treaty-making Power in the United States (2 vols., 1902); Bry, Nos. 283-340; 3 Calvo, §§ 1567-1669; 1 Cobbett, Cases, 314-333; Crandall, "Treaties," etc., in 21 Columbia University Studies in History, etc. (1904), No. 1; Davis (3d ed.), ch. 8; Despagnet, Nos. 435463; 2 Fiore, Nos. 976-1095; Foster, Practice of Diplomacy, chs. 12-16; Funck-Brentano et Sorel, Précis, chs. 7-9; Geffcken and Gessner, in 3 Holtzendorff, 5-137; Grotius, lib. II, cc. 15-16; *Hall, Pt. II, ch. 10; I Halleck (Baker's 3d ed.), 275-324; Heffter (Geffcken's ed.), §§ 81-99; Jellinek, Die rechtliche Natur der Staanverträge (1880); Ibid., Die Lehre von den Staatenverbindungen (1882), 100-113; Ibid., 1 Das Recht des modernen Staats (1905, 2d ed.), see index; Klüber (Ott's 2nd ed., 1874), §§ 141-165; Lawrence (3d ed.), §§ 152-154; Ibid. (4th ed.), §§ 132-134;* Ibid., Essays, 89-162; Liszt (3d. ed.), § 21; 1 F. de Martens, §§ 102-116; 2 Mérignhac, 633-790; 5 Moore, Digest, ch. 17; Nippold, Der völkerrechtliche Vertrag (1894); 1 Oppenheim, §§ 491-554; 2 Phillimore, Pt. V, chs. 6-9; Pic, in 17 R. D. I. P. (1910), 535 ff.; 1 Piédelièvre; 2 P.-Fodéré, Cours, 461– 498; 2 Ibid., Traité, ch. 6, Nos. 886-1224; * 2 Rivier, 33-146; Schuyler, "Commercial Treaties," and "Fisheries" in Am. Diplom., 404-457; *Scott, Cases, 412-449; Snow, Int. Law, §§ 33, 54; Taylor, §§ 334-400; Triepel, Völkerrecht und Landesrecht (1889), 27-90; I Twiss, ch. 13; Ullmann (2nd ed.), §§ 74-85; *Vattel, liv. II, chs. 12-17, §§ 152-322; Walker, Manual, $$ 30-31; *1 Westlake, 279-286; Wegeman, Die Ratification von Staatsverträge (1892); 2 Wharton, Digest, ch. 6; *Wheaton (Atlay or Dana), Pt. III, ch. 2, and Dana's notes, 139, 142, etc.; *1 Willoughby, The Const. Law of the U. S. (1910), chs. 32-33; *Wilson, ch. 7; Woolsey, ch. 5, §§ 101-113 and Appendix II, 423 ff. (for list of the most important treaties since the Reformation, with a brief statement of their provisions).

*

*

On the clause rebus sic stantibus, see especially Schmidt, Über die völkerrechtliche clausula rebus sic stantibus (1907).

The Conference held in London in 1871 to settle the Black Sea Question declared, "It is an essential principle of the Law of Nations that no power can liberate itseli from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement."

As Lawrence (4th ed., p. 328), observes: "This doctrine sounds well; but a little consideration will show that it is as untenable as the lax view which would allow any party to a treaty to violate it on the slightest pretext ..."

For the violation of the Treaty of Paris (1856) by Russia in 1870, and the Treaty of Berlin (1878) by Austria in 1908, see Hall (Atlay's 6th ed.), 344-350.

PART IV

SETTLEMENT OF INTERNATIONAL DIFFERENCES

304. Introductory. - International differences may arise on various grounds which have been broadly distinguished as legal or political in their nature.1 Legal differences are those arising from disputes or controversies to which a recognized legal principle or more or less clearly established rule of International Law may be applied. Political differences are those which result from a conflict of political, social, or economic interests and to which it is difficult or impossible to apply such rules or principles. Modes of settling international differences may be broadly classified as peaceful or amicable, and forcible or non-amicable. It is manifestly easier to apply amicable modes of settlement to legal than to political differences. States are morally bound to exhaust all peaceful or amicable modes of settling their differences before resorting to forcible or non-amicable means.

1It is not always possible to separate legal and political differences in practice, for they are usually of a mixed character, and legal claims have often been made a pretext for disguised political aggression.

On this distinction between legal and political differences, see especially: Bulmerincq, in 4 Holtzendorff, 5 ff.; Nippold, Die Fortbildung des völkerrechtlichen Verfahrens (1907), 127 ff.; 2 Oppenheim, §§ 1-6; 2 Rivier, 149 f.; Ullmann (2nd ed.), § 148; 1 Westlake, 339 ff.; Wilson, § 81.

*

CHAPTER XXI

AMICABLE MEANS OF SETTLEMENT OF INTERNATIONAL DIFFERENCES

THERE are at least five recognized amicable modes of settling international differences.

305. (I) Negotiation. The more usual or customary mode is by means of negotiation.1 Diplomacy is constantly at work avoiding friction, smoothing over difficulties, effecting compromises, and settling claims.2 In case of a serious difference, States are bound to try this mode of settlement before resorting to forcible means of coercion or redress a rule which appears to have been recently violated by Italy in sending an ultimatum to Turkey without suitable prior negotiations. Negotiations may be carried on orally, by an exchange of notes or written communications, or at a Congress or Conference.3

306. (II) Good Offices.4 -Good offices consist in suggestions or advice on the part of third Powers, offered for the purpose of inducing States at variance with each other to attempt by negotiation, or otherwise, an amicable settlement of their differences.

307. (III) Mediation. - Mediation partakes more of the character of an actual diplomatic intervention on the part of third

1 On Negotiation, see especially: Bonfils, Nos. 931-932; Bulmerincq, in 4 Holtzendorff, 13-17; 3 Calvo, §§ 1670 ff.; Despagnet, No. 470; Foster, Practice of Diplomacy; Kamarowsky, Le tribunal int. (1887), 73-79; 2 Oppenheim, § 4; * 1 and 2 P.-Fodéré, Cours, etc., 514 ff. and 298 ff.; 6 Ibid., Traité, Nos. 2585-2586. See also the references on the nature of diplomacy, in Bibliography at the close of Ch. I, supra, p. 13.

2 On Claims, see especially: Brewer and Butler, in Article on "International Law," in Cyclopedia of Law and Procedure, IX (1906); 6 Moore, Digest, ch. 21; Moore, Int. Arbitrations, passim (see index); and Wharton, Digest, ch. 9.

3 See supra,

ch. 19.

4 The terms "good offices" and "meditation" are often confused, especially in diplomatic documents. This is very natural, as the former may lead to the latter, of which it is frequently the first step. There is no warrant for the use of the phrase armed mediation, which would amount to a forcible intervention.

Powers. The mediator assumes the role of a middleman and plays a leading and regular part in the conduct of negotiations; but he acts as a conciliator or mutual friend rather than as a judge, and he is usually more anxious to effect a compromise than to secure a settlement of the dispute on a judicial basis. This mode of procedure is especially adapted to the settlement of political differences. Mediation may be single or collective in character, and it may be designed to terminate as well as to prevent a war or other serious international conflict.1

The Hague Peace Conferences of 1899 and 1907 laid down the following rules in respect to the use of Good Offices and Mediation: 5

"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 (Art. 2).

"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.

'Through treaties, States occasionally agree to submit to a sort of obligatory mediation in advance. For examples, see Bonfils (Fauchille), Nos. 934, 936, 941; 2 Piédeliévre, Nos. 670-678; and 2 Rivier, 164.

For historical examples of mediation (which are very numerous) see: Bonfils, Nos. 937-942; 3 Calvo, §§ 1684-1704; 6 Ibid., §§ 349-351; and 6 Moore, Digest, $1065-1067 (for instances of the tender of good offices and mediation on the part of the United States).

An interesting example of the use of good offices or mediation by the United States is that by ex-President Roosevelt during the Russo-Japanese War, which resulted in the Treaty of Portsmouth in 1905. Mr. Roosevelt's activity during the negotiations would seem to show that it was more than a tender of good offices. Yet it hardly amounted to a formal mediation. See Hershey, Int. Law and Diplomacy of the Russo-Japanese War, 347 ff., and 353 ff. (including notes).

6

1 H. C. (1899 and 1907), Arts. 2 to 7 (inclusive). It should be noted that the tender of good offices or mediation on the part of third Powers prior to or during hostilities is a legal right, but not an obligation. However, the Powers at variance are bound to have recourse to this mode of settling disputes, so far as circumstances allow. But this qualification renders the obligation largely illusory.

The conventions of the two Hague Conferences may be most conveniently consulted in Higgins, The Two Hague Conferences (1910), where they are printed on parallel pages. See also 2 Scott, The Hague Peace Conferences; Ibid., Texts of the Hague Conferences; and Whittuck, Int. Documents.

'The phrase in italics is the sole contribution to this subject by the Conference

of 1907.