EFFECT OF WAR ON TREATIES 361 was caused by German affairs which were entirely unconnected with the Turkish Empire and with its dependencies. The effect of the war of 1866 upon the Treaty of Paris of 1856 was to leave it entirely unaffected. The rights and obligations of Prussia and Austria under the Treaty of Paris remained exactly what they were before the outbreak of the war of 1866. (b) The second situation arises when, although the cause of the war is entirely unconnected with the treaty in question, the war operates nevertheless to prevent the performance of certain of its obligations by the belligerent States. Such obligations are suspended for the time being; but they revive again as soon as the belligerent State is able to perform them. Thus, during the Franco-Prussian War of 1870 it was impossible for France, hard hit by the war, to fulfil its guarantee of the independence and integrity of the Ottoman Empire under the treaty of 1856 with England and Austria. On the other hand, obligations of the treaty which it is possible for the belligerent State to fulfil at all times during the war, especially obligations which exact merely passive acquiescence and no active support, are unaffected by the war and are not suspended. The entire treaty is unaffected so far as neutral signatory Powers are concerned; it remains fully binding on them throughout the war. (c) The third situation is where the war arises out of the treaty itself. Thus, in 1877 Russia and Turkey, two of the several parties to the Treaty of Paris of 1856, engaged in a war over the Eastern question. The effect of war upon such a treaty is doubtful; it depends chiefly on the will of the neutral signatory Powers. But, in the instance just given, the Treaty of Berlin (1878) shows the views held by the several signatory Powers as to the effect of the war of 1877 upon the earlier Treaty. (d) The fourth situation is created where two or more States are at war and where the question is as to the effect of the war upon great law-making treaties of which the regulations contemplate international society as a whole. The general principle here is that such a treaty is unaffected by the war. When, however, such a treaty deals with the laws of war, the war itself brings the treaty into operation. (2) The second kind of treaties to which one or more States besides the belligerent Powers are parties are the so-called 'ordinary treaties'. The effect of the war upon such treaties depends upon their subject-matter. As a general principle it may be said that they are either obligatory, or suspended, or abrogated, so far as the belligerent States are concerned, but that they are unaffected with regard to third parties. Thus, a convention in regard to maritime capture would be brought into operation by the war; it would be binding as between the belligerent States and as between each of them and neutral signatory Powers. A treaty of commerce, on the other hand, would cease to be binding on the belligerents, but would seem to be obligatory as between each of the belligerents and the neutral States who were parties to it. A treaty of alliance between three States would be completely abrogated, however, by the outbreak of war between two of the signatory Powers. B. There are, in the second place, treaties to which the belligerent States only are parties. Such treaties are of four kinds. (1) So-called pacta transitoria are treaties which even though they may be performed by one single act or by a series of acts-establish a permanent state of things. Such treaties are unaffected by war; as, for example, treaties of cession or recognition, or boundary conventions. Thus, the boundaries between belligerent States established by convention prior to the war remain as they are, until they are readjusted by the treaty of peace or completed conquest. (2) Treaties of alliance and conventions, which bind the parties to friendship and amity, are abrogated by war. (3) Treaties which regulate ordinary social, political, and commercial intercourse, such as postal and commercial treaties, extradition treaties, conventions in regard to property, and the like, form a third group. The effect of war upon them is doubtful under existing law and practice. They are indeed at least suspended during the war; but it is uncertain whether they are revived by the fact of the re-establishment of peace, or whether they are abrogated by the war and must be entered into afresh on the conclusion of hostilities. The practice of States gives no certain answer to these questions. Generally the treaty of peace deals with such treaties; the parties expressly annul them, continue them, or replace them by new arrangements. In the absence of such express stipulations no rule can be laid down as clear law; but it may be held on EFFECT OF WAR ON TREATIES 363 general principles that treaties of the kind now under consideration are merely suspended by war and that they revive at the conclusion of peace, unless the treaty of peace provides otherwise. (4) Treaties which regulate the conduct of signatory States towards each other as belligerents, or as belligerent and neutral, are brought into operation by war. II: Second Method of Classification According to Westlake1 it is the 'general rule that war abrogates the treaties existing between the belligerents, and that their revival, if desired, must be expressly provided for in the treaty of peace'. 6 To this rule, however,' continues Westlake, there are certain exceptions. 'First, all conventional obligations as to what is to be done in a state of war must continue in force, or they would have no position at all. . . . 'Secondly, transitory or dispositive treaties, including all those which are intended to establish a permanent condition of things, form another exception.. 'A third exception is that of treaties establishing arrangements to which third powers are parties, such as guarantees and postal and other unions. . . . Outside the exceptions which have been discussed, treaties between belligerents do not survive the outbreak of war. III: Third Method of Classification There is still another method of dealing with the problem of classifying treaties from the point of view of the effect upon them of the outbreak of war. Classifying them in reference to parties, it may be said that treaties fall into three main groups. A. Bilateral treaties between two States which become opposing belligerents. In accordance with the general practice of States and the view held by most jurists, the effect of war is to terminate all such treaties.2 B. Multilateral treaties where all the parties are belligerents. This case seems to be covered neither by the precedents of 1 International Law, Part II: War, 1907, pp. 29–32. the past nor by the writings of international jurists. On principle it would seem possible to treat these treaties in the same way as bilateral treaties between two opposing belligerents, and thus to regard them as terminated as between all parties, unless they are specifically revived at the termination of hostilities in the treaty of peace. C. Multilateral treaties where one or more of the parties are neutral. The general view of the jurists is that such treaties are not terminated by the outbreak of war; as between the belligerents they are merely suspended during war, and as between each belligerent and each neutral party they are not even suspended but retain their full force and effect during hostilities; while at the conclusion of peace they revive automatically and become operative upon all parties. In order to prevent the automatic revival of such treaties it is necessary to insert in the treaty of peace an express stipulation to this effect. § III. THE EFFECT OF THE WAR OF 1914-18 ON TREATIES A careful and detailed application of the fundamental legal principles governing the effect of war on treaties to the treaty-system in force in 1914 is one of the most important of all the many branches of present-day juridical study. It is manifestly impossible, however, within the limits of this chapter, to deal adequately with the many and complex problems connected with the effect of the World War upon the hundreds of treaties and conventions which bound the States one to another in 1914. Such an inquiry would involve a consideration of the great law-making treaties no less than of the almost innumerable treaties concluded for all kinds of other purposes. It would involve the examination of many groups of treaties and conventions, such, for example, as those which relate to the conduct of hostilities, arbitration, extradition, the slave trade, post, telegraphy and radiotelegraphy, fisheries, patents and trade marks, copyright, commerce and navigation, joint-stock companies, sanitation, agriculture and labour, and all the far-reaching subjects of territorial and political authority in all parts of the world. The outbreak of the war and the practices of the belligerent and neutral States during the war have affected this whole EFFECT OF WAR OF 1914-18 365 treaty-system in countless directions.1 There has been indeed a partial, but nevertheless a far-reaching, break-up of the treaty relations which existed in 1914. The effects of this break-up are seen most clearly in the treaty relations between the two opposing groups of belligerent States; but they are also observable in respect to treaties which involve neutral States as parties. Indeed, it is hardly possible to contend that the treaty relations of any one of the world's States have been unaffected by the great struggle which has swept over all the continents and all the seas. The necessity of dealing with this vast problem on general principles of international law is partly obviated by reason of the fact that the Treaties of Peace contain certain provisions in regard to the effect of the war upon treaties. With these provisions we shall deal briefly in a later portion of the present chapter; but we shall see that, even after we have studied the stipulations of the treaties, we shall still remain in doubt as to the after-war status of many of the most important treaties and conventions which possessed binding force in July 1914. PART II THE STAGES IN THE HISTORY OF PEACE NEGOTIATIONS Throughout the whole period of the war there was much public discussion of the possibility of ending the conflict by means of negotiation; but in the present chapter only the later stages of this discussion will be brought under review. These stages begin with the German peace note of the 12th December 1916, and end with the conclusion of treaties of peace at Paris. These later stages constitute the history of diplomatic and authoritative public discussion of the possibility of re-establishing the world's peace and of the terms to be embodied in the treaty or treaties of peace. It is not one of the purposes of the present chapter to trace, even in outline, the evolution of thought which led ultimately to 1 On the effect of the war on the treaty guaranteeing Belgium's and Luxemburg's neutrality, see Baty and Morgan, War: Its Conduct and Legal Results, 1915, pp. 229-43; Phillipson, International Law and the Great War, 1915, pp. 1-26. On the effect of the war upon certain Hague Conventions, see Hall, op. cit., 1917, pp. xxxviii, xxxix, 478 seq. Consult also the Index, s.v. Hague Conventions. |