XXVI

tion of the rights and duties of neutral states have grown closer CHAP. bonds of commercial relationships which have made neutrals more jealous of the traditional restraints upon their intercourse with the respective belligerents. New facilities of transportation have rendered the existing rules of contraband and blockade inadequate. In these and other ways the efforts to codify the laws of war made at the two Hague conferences have been offset by a change of the facts upon which the rule was originally established, and it is open to question whether the principle of rebus non sic stantibus has not partially invalidated a number of the most generally accepted rules.1

in the factory or field, or families in the home, were believed to be essential contributors to the success of the soldier at the front.

1

The specific cases in which this issue was raised during the World War will be pointed out below. See pp. 512, 541 ff.

During the war Great Britain and her allies took the position that the existing laws of war applied until changed by general consent. Germany, on the other hand, held that new conditions permitted resort to instruments and methods not contemplated by the existing rules, but consistent with the general principles upon which the specific rule had been based. At the Washington Conference of 1921-22 the contracting parties reaffirmed the validity of the existing law (as of 1914) with respect to the use of submarines and noxious gases, and restricted their use for the future. At the same time they recognized that the "existing rules" might not adequately cover new methods of attack and defense resulting from the introduction or development, since the Hague Conference of 1907, of new agencies of warfare, and appointed a committee to consider what changes ought to be adopted, except in respect to submarines and noxious gases, already provided for. See Am. Journal, XVI (1922), 189; XVII, 629.

a. Rupture

of diplomatic

relations

b. Effect of war upon treaties

CHAPTER XXVII

EFFECT OF WAR UPON THE NORMAL RELATIONS OF THE

BELLIGERENT STATES

The outbreak of war between two states is regularly attended, if not already preceded, by a rupture of diplomatic relations. International law prescribes that diplomatic agents of the belligerents be given passports to leave the country and be protected in their personal inviolability until they have crossed the frontier. With few exceptions, governments have been scrupulously careful to observe this rule, in spite of the difficulty presented by the hostility of the population.1 The archives of the embassy or legation are usually turned over to the diplomatic agent of a friendly neutral state, and the functions thus transferred may be assumed by the neutral without offense to the territorial sovereign. It is also customary for a state to withdraw the exequaturs of consuis of the enemy state, after which the consular archives may either be left in the care of a non-official employee of the consulate or be turned over to the consul of a friendly state. As a general rule, enemy consuls have been permitted to return freely to their own state; so that the detention by Great Britain and Germany of each other's consuls in 1914 was exceptional.2

While there is no clear rule of international law with respect to the effect of war upon treaties between the belligerent states, the practice of recent times indicates a tendency to divide treaties into two classes according to their subject-matter, and to hold the one class unaffected and the other class abrogated by the war. Treaties of the class unaffected by war appear to be correctly described by the United States Supreme Court in the case of Society for the Propagation of the Gospel v. New Haven, which arose out of an action of ejectment brought by the society, a foreign corporation, to recover lands held by them under the treaty of 1783 between the United States and Great Britain. While recognizing

1

3

For instances of alleged mistreatment of diplomatic agents at the begin. ning of the World War, see Garner, International Law and the World War, I, 39-47.

XXVII

the title of the society as a vested right under the treaty, irrespec- CHAP. tive of the effect of the subsequent war, the court announced as an obiter dictum the doctrine that "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." The same doctrine was laid down by the British court of chancery in 1830 in the case of Sutton v. Sutton,1 which involved the right of an American alien to hold and convey real estate under the treaty of 1794, notwithstanding the intervening war of 1812-14. The court held that it was "a reasonable construction that it was the intention of the treaty that the operation of the treaty should be permanent, and not depend upon the continuance of a state of peace." In 1854 the British Parliament showed its acceptance of the customary rule by refusing to regard a treaty of 1831, by which certain debts of Russia to Holland were to be paid by Great Britain, as abrogated by the outbreak of war in the Crimea, although in this case a special provision of the treaty contemplated its continuance notwithstanding the outbreak of war.2

treaties

Treaties of this final and dispositive character are said by most Executed writers to be suspended while the war lasts, but upon the return of peace to revive in their operation without any express or implied renewal. A better view is, perhaps, that the treaty has ceased to be in force from the time of its execution, so that there is no existing contractual obligation to be affected by the war. These treaties have been designated by certain writers as "transitory conventions" (pacta transitoria), and while the term is open to objection, it may be interpreted as indicating the fact that such treaties accomplish their object by a single act and thereupon cease to have any further contractual force. A better term might per

1 R. & M., 663 (Court of Chancery, 1830); Scott, Cases, 468.

Case of the Russo-Dutch Loan, 1854. Cobbett, Leading Cases on International Law, II, 38.

'See Sir Cecil J. B. Hurst, "The Effect of War on Treaties," in British Year Book of International Law, 1921-22, pp. 37, 46. Sir Cecil questions "whether it is the character and nature of the treaty stipulation which is really the decisive element," and submits "that the true test as to whether or not a treaty survives an outbreak of war between the parties is to be found in the intention of the parties at the time when the treaty was concluded.' (Pp. 39-40.) Query, whether the character and nature of a treaty are not evidence of intention when not otherwise manifested.

See Moore, Digest, V, 383, where it is pointed out that the failure to consider such agreements as treaties in the technical sense resulted in incorrect generalizations with respect to the latter.

CHAP.
XXVII

Political

treaties:

conventions

haps be "executed treaties," following the terminology of the "executed contracts" of municipal law.

To the above group must be added certain political treaties, international such as the treaty of 1907 by which the independence and integrity of Norway were recognized,1 or the treaty of 1906 fixing the international status of Morocco. Such treaties, having reference primarily to the rights of third states, would appear from their subject-matter to be intended to survive the outbreak of war between any two or all of the contracting parties. Again, it may obviously be inferred from their subject-matter that certain bilateral treaties, such as the treaty of 1795 between the United States and Spain,3 containing provisions entered into directly in view of war, are not only not abrogated, but in respect to the particular clauses are actually brought into effect by the outbreak of war. The same rule holds, with even greater force, with respect to the general international conventions to which the nations as a body have been parties, including neutral states as well as belligerents, such as the conventions of the Hague conferences relating to the conduct of hostilities and other rights and duties in time of war. Further, there are the general international conventions, such as the International Sanitary Convention of 1903, relating to matters of common convenience to the international community. These treaties continue in force with respect to relations between belligerents and neutrals; and it would appear that in respect to the belligerents themselves they are merely suspended in so far as their operation is inconsistent with belligerent operations and the cessation of friendly intercourse.

Treaties contemplating

temporary arrangements

On the other hand the subject-matter of other treaties clearly indicates that they are not intended by the parties to set up final and definitive arrangements, but merely to provide a temporary basis for the adjustment of conflicting interests or for the promotion of common interests. The absence of a time-limit attached to these treaties does not confer upon them any permanent character. International practice has, on the whole, regarded them as abrogated by war between the contending parties. Political treaties, such as treaties of alliance or of arbitration, are necessarily abrogated, as being incompatible with the existence of hostile relations. Treaties of commerce and navigation have almost uniformly been

XXVII

regarded by states as abrogated by hostilities, although the fact CHAP. that in the treaties of peace at the conclusion of wars such treaties have occasionally been "confirmed" or "reëstablished" has led 2 writers to assert that they were merely suspended during the war." At the close of the Crimean War of 1854-56, the Franco-Prussian War of 1870-71, and the Russo-Japanese War of 1904-05 the commercial relations of the two belligerents were temporarily adjusted on the basis of "most-favored-nation" treatment until new treaties should be negotiated. At the close of the Spanish-American War in 1898, Spain refused to consider any of the treaties between the two countries as continuing in force; and they were "expressly abrogated and annulled" by the treaty of 1902 with the exception of the treaty of 1834 relating to the settlement of claims.5

Where a treaty contains both provisions intended by the contracting parties to be permanent and provisions intended to be temporary, international practice indicates that the former, being "executed" provisions, remain unaffected by war, whereas the latter are abrogated. Of such character was the treaty of 1783 between the United States and Great Britain, which on the one hand recognized the independence of the former colonies and defined their boundaries, and on the other hand granted certain fishing "liberties" to the United States in the waters of Newfoundland. These latter were claimed by the United States in 1815 as surviving the war of 1812-14; but in the face of the categorical assertion by the British Government that it knew of "no exception to the rule that all treaties are put an end to by a subsequent war between the same parties" the United States was obliged to yield the point.R

The provisions of the Treaty of Versailles upon this subject are of an exceptional character and represent rather the imposi

1

1 Art. XVII, treaty of 1859 between Austria, France, and Sardinia. Nouveau Recueil Général, XVI, P. 2, p. 537. 'Art. II, treaty of 1864 between Austria, Prussia, and Denmark. Ibid., P. 475.

For a discussion of opposing points of view, see Hall, International Law, 125; Moore, Digest, V, § 779. See also documents on "Effect of War on Treaties," in Selected Topics Connected with the Laws of Warfare, by J. R. Baker and L. W. McKernan.

*See Crandall, Treaties: Their Making and Enforcement, § 181, where a survey of the leading peace treaties is given.

Malloy, Treaties, II, 1701, 1710. At the very beginning of the war Spain had announced that the war then existing had terminated all agreements, compacts, and conventions between the two countries. See Moore, Digest, V, § 779.

"For details of the controversy see Moore, Digest, I, § 163. See also above,

p. 280.

Treaties both per

containing

manent and

temporary

provisions