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donment, duly declared by the party who alone is entitled to insist for performance. Fifthly, through the reciprocal revocation or abrogation of a bi-lateral treaty, which itself no third party can prevent. Sixthly, through the total destruction of the object, upon which the contract proceeds, so far as therein no fault or blame is imputable or attaches to any party. Seventhly, through the extinction or annihilation of the subject or party entitled or bound by the contract, without another legally, or according to the analogy of the treaty, coming in his place. Finally, there arises or takes place, if not always a complete extinction or annihilation, yet a suspension of the obligations of treaties, through the occurrence or intervention between the contracting parties of a general or complete, not merely a partial state of war ; unless the treaty be expressly concluded with a view to the duration or period of war-a consequence which will be justified in the sequel, by a nearer examination of the right import or meaning of war. At the same time every treaty, in itself extinguished, may be again revived by an express or tacit renewal, only the renewal is liere itself the rule for the future, and is, therefore, in all respects a valid treaty, binding in its provisions and stipulations. A tacit renewal must accordingly also have for itself a completely discernible and unequivocal mark or criterion, by which to judge and ascertain that it is the view of the parties to allow the earlier treaty to continue in force generally, and in all its arrangements; otherwise a continued performance and acceptance of what might have been demanded or required, from the earlier treaty, is only to be considered as a single factum existing for itself.”
In illustration of the last-mentioned mode in which
treaties are terminated, viz., by general and complete hostilities, Professor Heffter proceeds as follows :-*
“ The next effect of the breaking out of a war is the actual suspension of every juridical relation during peace, and of all intercourse and commerce between the belligerent powers; for the judicial administration and enforcement of justice is now no longer possible; the war claims for itself all the means, faculties, and energy of the nation.
“On the other hand, it cannot be maintained, at least not according to the principles of the more recent law of war, that the war juridically, or legally, dissolves or extinguishes every legal bond or tie between the contending parties, and leaves such legal bonds or ties to arise of new, as if for the first time, through the succeeding peace; for, although every war puts at stake or in hazard or danger the existence of a state, the mere possibility of ruin or destruction is still not equivalent to actual destruction itself. Farther, those obligations from treaties, too, which are expressly undertaken with a view, or extended, to the case of a war, have an enduring validity so long as no party is guilty of any injurious act, and thereby entitles the other to abrogate absolutely the obligation, or at least to suspend the same by way of reprisal; for, till this takes place, there exists presumptively a unity of wills, the foundation of the obligations of treaties."
Further, in section 181, p. 304, Professor Heffter thus lays down the law :-“All obligations from treaties, of which the fulfilment was at first only to take place in future, in which also a change of will was still possible, in
* “Das Europäische Völkerrecht,” Ş 122, p. 206.
reference to the obligation undertaken, become doubtful and insecure through the breaking out of a war; so that they require for their farther validity a confirmation and ratification, by a new, plain, and clear declaration of will."
Pinheiro Ferreira. Further, in his Précis du Droit des Gens Moderne de l'Europe, section 58, Martens had thus stated the law :—“ In all cases of a war breaking out between the contracting parties, treaties, although made for ever, fall of themselves, with the exception of the articles contemplating the case of the rupture." And in his notes on the work of Martens, vol. i. p. 390, M. Pinheiro Ferreira, late Minister for Foreign Affairs in Portugal, agreeing with Professor Heffter, confirms this doctrine, limiting the necessity for a clear, express, and special renewal to the obligations of which the performance at the time of the rupture were only to take place in future ; and referring for the reasons of this to his own Cours de Droit Public, section 45, which reasons, he observes, M. Martens has not given.
We have thus noticed a number of the difficulties and uncertainties to which the conventional law of nations, as composed of public treaties, is liable, in addition to what are found to exist in private contracts between individuals, in the internal jurisprudence of states. We have also endeavoured to ascertain how these questions are to be decided according to the most recent authorities. But until most of these questions can be answered satisfactorily, to the conviction of the educated or intelligent portion of mankind generally, and until it be ascertained, by rigid and impartial investigation, which of the treaties concluded among the different European independent states, in the course of the present and two preceding
centuries, are now in force and obligatory on independent states—not mere matters of history—the conventional law of nations, although highly useful in various departments, as supplementary, will, if adopted as now proposed, be found but a lame substitute, as a whole, for the common consuetudinary law of nations.
Errors in over-estimating the legal Effects of public
In the preceding observations we have seen that the particular conventional law of nations, composed of treaties, is, as a whole, defective as a legislative code, and very insufficient and uncertain in extent and duration ; and that, although useful as a supplement in various cases, it affords but an unstable foundation, if substituted as a basis, for general or common consuetudinary international law, which rests on the juridical or legal relations established by the omnipotent and all-wise Creator in the physical, corporeal, and mental constitution of mankind in the physical material situation and circumstances in which He has placed the human race on the surface of this earth, in the course of the physical material and physical mental —excluding moral events, to which he has subjected them in this world—and in the consequences of the delegated powers of action, which he has bestowed upon societies of men, or communities, or states, as well as upon individuals. But farther, the operation and effects of the conventional law of nations have been greatly
LEGAL EFFECTS OF TREATIES.
over-estimated and exaggerated by various jurists, and many very learned and able writers have fallen into what appear, upon more thorough investigation, to be errors, in the effects they ascribe to public treaties. One description of errors consists in holding particular conventions or treaties to be almost the sole evidence of, and to form almost exclusively the whole of, international law; and, if not to constitute it originally, at least to alter and modify and recast it from time to time. Another description of error consists in holding a series or succession of treaties among two or more nations, containing certain stipulations, as recognising certain principles or rules, and establishing them in future, to the effect of being legally obligatory on nations who have never made or agreed to such stipulations, or who have done so only for a time, or with regard to particular nations, from particular considerations.
The first of these errors consists not merely in holding treaties to afford evidence of the actual performance of obligations, whereas they merely afford evidence of engagements to perform obligations, which occasionally have not been fulfilled, but also and chiefly in holding treaties to afford almost the only and sole evidence of international law, to the exclusion and neglect of almost all other historical records ; whereas the true and real evidence of general international law, usage, and practice, is to be found in the records of the national institutions, government, administration, and practice of each independent state ; while treaties, though sometimes confirmatory of preexisting rules of the common law, are usually merely exceptions from the previous general rule. We formerly pointed out in detail the records and evidence of the