and Russia allowed English or French goods, the property of English or French citizens, to be imported into her dominions in neutral vessels. It is by no means impossible that commercial interests will secure similar relaxations of the strict rules of warfare in future struggles between great trading nations.

upon treaties to

which the belliger

ents and powers

other than the bel

ligerents are parties.

§ 166.

We are faced by a number of difficult and complicated questions when we come to consider the effect of war upon The effect of war treaties to which the belligerents are parties. The only way in which it is possible to deal with them satisfactorily is to adopt the method of analysis. We will begin by separating treaties to which other powers beside the belligerents are parties from treaties to which the belligerents only are parties. The former class will at once divide into Great International Treaties and Ordinary Treaties. The former either make epochs in the development of the state system and territorial distribution of Europe, or take a wider range and deal with questions which affect the condition of a large part of the human race, while the latter deal with such matters as commercial and postal intercourse and the every-day business of the society of nations.

In estimating the effect of war upon Great International Treaties we must distinguish three cases. The first arises when the cause of the war is quite unconnected with the treaty. Thus in 1866 Prussia and Austria, two signatory powers of the great Treaty of Paris of 1856 which for a time. settled the Eastern Question, were the chief belligerents in a conflict which arose out of German affairs and had no connection with the Turkish Empire and its dependencies. The Treaty of Paris was entirely untouched by that war, and the rights and obligations of Austria and Prussia under it remained what they were before. Under such circumstances

1 Halleck, International Law (Baker's ed.), II., 156, note.

The

a Great International Treaty is unaffected by the war. next case occurs when the war does not arise out of the treaty, but operates to hinder the performance of some of its stipulations by the belligerents. France, for instance, . when in 1870 she was reeling under the blows of Germany, would not have been able to make good the guarantee of the independence and integrity of the Ottoman Empire into which she had entered with England and Austria in 1856. In such a condition of affairs the obligations it is impossible to fulfil must be held to be suspended for a time and to revive again when the power in question is able to undertake them. The remaining provisions of the treaty, which require merely passive acquiescence and not active support, continue to bind the crippled state, and the whole treaty remains binding on the other signatory powers. The third case occurs when the war arises out of the treaty. This happened in 1877, when Russia and Turkey, two of the parties to the Treaty of Paris of 1856, went to war upon the Eastern Question. It is very difficult to say what are the legal effects of such action. The chief factor in determining them must be the will of the other signatory powers. In 1877-1878 they remained neutral during the war, but at its close put in a successful claim to be consulted in drawing up the conditions of peace, on the ground that, having allowed the state of affairs established in 1856 to be upset by the war, they were entitled to a voice in shaping the new arrangements which were to take its place. If they had chosen instead to adopt the course of insisting upon the Treaty of Paris and making war against any power that infringed it, they would no doubt have been within their technical right. Or, if the disagreement between the belligerents had related to a small and unimportant point in the treaty, they might have been allowed to settle their quarrel without interference, on the understanding that the other stipulations remained in force unaffected by the war.

Ordinary Treaties to which one or more powers besides the

belligerents are parties, are affected by the war according to their subject-matter. Thus an alliance between three states would be destroyed altogether if war broke out between two of them; a Treaty of Commerce would cease to operate between the belligerents, but would remain in force between each of them and the other states who were parties to it; and a Convention with regard to maritime capture would come into operation between the belligerents, and between each of them and the neutral signatory powers.

The effect of war upon treaties to

which the belligerents only are

parties.

§ 167.

We have now to deal with treaties to which the belligerents only are parties. Considered with reference to the effect of war upon them, they fall into four classes. In the first we may put those to which the name Pacta Transitoria has been given. They are agreements fulfilled by one act or series of acts, which produce by being once performed a permanent effect. Boundary Conventions and Treaties of Cession or Recognition are examples. War has no effect upon them. They remain unchanged in spite of it. For example, the boundaries between belligerent states may be readjusted in consequence of the war; but till the readjustment is effected by the treaty of peace or by completed conquest, the old territorial distribution remains legally in force. The next class is made up of Treaties of Alliance and conventions binding generally to frendship and amity. It is clear that they are entirely destroyed by the war. In the third class we may place conventions for regulating ordinary social, political, and commercial intercourse, such as Treaties of Commerce and Extradition Treaties. The effect of war upon instruments of this kind is very doubtful. They are, of course, suspended while the war lasts; but it is a muchdisputed question whether they revive again at the conclusion of peace, or are destroyed by the war and require to be

re-enacted if they are to come into force again when it is over. The practice of states exhibits a lamentable absence of uniformity. Some treaties of peace expressly stipulate for the revival of postal and commercial agreements subsisting before the war, the inference being that the stipulation was necessary to give force to the revived arrangements. Other treaties contain no covenant for revival, and yet under such circumstances agreements of the kind we are considering have been acted upon after the peace on the understanding that they were restored to efficiency by it. In judicial decisions we find a nearer approach to a fixed rule. The Supreme Court of the United States laid down in the case of the Society for the Propagation of the Gospel v. the Town of New Haven1 that the stipulations regarding confiscations and alienage in the Treaties of 1783 and 1794 between the United States and Great Britain were of a permanent character, and were not, therefore, abrogated by the War of 1812, though their enforcement was suspended while it lasted. And in England in 1830 the Master of the Rolls decided in the case of Sutton v. Sutton 2 in favor of the permanency of the Treaty of 1794 which gave to citizens of each country and their heirs and assigns the right to hold land in the other. With these facts before us we may venture to say that, though no rule can be laid down as undoubted law, it is best to hold on general principles that treaties of the kind we are now considering are merely suspended by war and revive at the conclusion of peace. The fourth and last class contains treaties which regulate the conduct of the contracting parties towards each other when they are belligerents, or when one is a belligerent and the other is neutral. Cases in point are afforded by the numerous agreements giving to the subjects of each of the contracting powers the right to remain in the territory of the other should the two countries be at war, and by stipulations for the regulation of 1 Wheaton, Reports of U. S. Supreme Court, VIIL, 494. 2 Russell and Mylne, Chancery Reports, I., 663.

maritime capture. The effect of war upe all treaties of this class is to bring them into active operation.

What we have said above applies not only to whole treaties, but also to separate stipulations in treaties dealing with several subjects. With the aid of the table printed on the next page it is hoped that the careful reader will be able to see his way through this intricate subject. The sweeping statements to be found in diplomatic correspondence concerning the effect of war on treaties may be passed over with little respect. They are invariably made in support of a foregone conclusion. The method of observation, analysis and classification is the only one capable of yielding fruitful results.

1 Wharton, International Law of the United States, § 135.