7 Durability of the which no time of expiration has been stipulated. 5. When two treaties made between the same States at different dates conflict, the later governs, it being supposed to be in substitution for the earlier contract. It is hardly an exception from this rule that, when of two conflicting treaties the later is made by an inferior though competent authority, the earlier is preferred. 6. When two treaties conflict which are made with different States at different times, the earlier governs, it being of course impossible to derogate from an engagement made with a particular person by a subsequent agreement with another person entered into without his consent. Hence, until all the parties to a treaty have consented to forego their rights under it, no subsequent treaty incompatible with it can be valid; any such treaty is null at least to the extent of its direct incompatibility; an if the incompatible portions are not separable from the remainder, it is null in its entirety. § 134. The validity of a treaty depends essenof treaties for tially on the free will and mutual consent of the contracting parties, so that, as a general rule, mutual consent is likewise required for the dissolution of the contract. However there are circumstances which may afford sufficient grounds upon which a treaty may be repudiated by one of the parties. Woolsey maintains that a treaty in which the treaty-making Power flagitiously sacrifices the interests of the Nation which it represents, has no binding force. In this case the treacherous act of the Government cannot be justly regarded as the act of the Nation and the forms ought to give way to the realities of things. *GROTIUS. Lib. II. Chapt. XVI. § 29. VATTEL. Liv. II. Chapt. XVII. §§ 321-22. PHILLIMORE. II. Chapt. IX. CALVO. §§ 604–7. W. E. HALL. Intern. Law. p. 285. $134. Lésion, which is inequality of advantages derived from the contract, does not invalidate a treaty when one of the parties was under a wrong impression, not necessarily through false representations of the other party, but through that party's own want of judgment. When one of the parties acts under a wrong impression or formed a false judgment of the other's power, this other is not responsible, for the consideration is not a real objective good, but the expectation of good which may not be realized. Thus if a garrison capitulates under a mistaken calculation as to the force of the besieging army or the probability of relief, and discovers the mistake before the capitulation takes effect, the capitulation is still binding. Relief through invalidity of a treaty on account of fear, fraud or incompetency of the contracting agent, places the relieved party altogether in the same situation in which that party was before the contracting of the obligation, provided that the other party be also replaced exactly into the position in which it previously was. This imposes on the other side the obligation to effect a restitution of all fruits and profits received, as also compensation for all losses. The relief is also of effect against third parties which are benefitted by the contract or obligation. By fear is meant serious personal apprehensions, as of death, dishonour, great sufferings, imprisonment or ill-treatment of the contracting agent or his family, and in general all individual compulsion which has a definite personal feature. Fraud is an act or instrumentality by which an unfair or unlawful advantage, injuring the interests of another party, is sought to be gained deceitfully. *WOOLSEY. p. 168. Opinion of The Trea'y of . When any obligation is contracted through fraud perpetrated on both sides, the transaction is void from the beginning. * Two conspicuous historical incidents with regard to the durability of international treaties, in our time, ought to be mentioned here. We mean the Treaty of Paris of 1856 and the Clayton Bulwer Treaty of 1850. With regard to the Treaty of Paris of 1856, Sir Robert Phillimore makes the following statements. "Private contracts may be set aside on the ground of the inferences of fraud and unfair dealing arising from their manifest injustice and want of mutual advantage. But no inequality of advantage, no lésion, can invalidate a treaty. It is truly said by Vattel, 'si l'on pouvait revenir d'un traité, parce qu'on s'y trouverait lésé, il n'y aurait rien de stable dans les contrats des nations." No more dangerous attempt has ever been made than that of Russia in 1870, to escape from the obligations of the Treaty of 1856 on this pretext.' "The International writer may point, with at least some satisfaction, to the refusal of all the other Powers to admit the plea of Russia, and to the Protocol which prefaced the new Treaty of 1871. A Conference was held in London in the early parts of that year, to consider the Treaty of 1856. Earl Granville, President of the Conference, said: "The Conference has been accepted by all the "co-signatory Powers of the Treaty of 1856, for "the purpose of examining without any foregone "conclusion, and of discussing with perfect free"dom, the proposals which Russia desires to make "to us with regard to the revision which she asks "of the stipulations of the said Treaty relative to "the neutralisation of the Black Sea." * GROTIUS. Introduction to Dutch Jurisprudence. Chapt. XLVIII, "This unanimity furnishes a striking proof that "the Powers recognize that it is an essential prin"ciple of the Law of Nations, that none of them "can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless "with the consent of the contracting parties, by "means of an amicable understanding." "This important principle appears to me to "meet with general acceptance, and I have the "honour to propose to you, gentlemen, to sign a "protocol ad hoc. The protocol in question was then submitted to the Conference and signed by all the Plenipotentiaries, that is to say, Prussia or North Germany, Austria, Great Britain, Italy, Russia, Turkey, and, by subsequent adoption, France. All subscribed to the maintenance of this primary and elementary principle of Internationol Law; and under the circumstances such subscription was most valuable to the welfare of States. * With regard to this treaty, Mr. Hall makes the following statements. In 1856 the Crimean war ended by the Treaty of Paris. The object of the treaty was to settle the affairs of the East, so far as possible, in a permanent manner; and in order that this should be done, it was considered necessary to secure Turkey against being attacked by Russia under conditions decidedly advantageous to the latter Power. To this end the prevention of the naval preponderance of Russia in the Black Sea was essential, and the simplest mode of prevention was to forbid. the maintenance of a fleet. This course was accordingly fixed upon.. But as, without a fleet, Russia would be exposed to * Sir ROBERT PHILLIMORE. Vol. II. p. 76. VATTEL. Liv. II. Chapt, XII. § 158. danger in the event of war with a third Power, unless access to the Black Sea were denied to its enemy, and as at the same time, in the absence of a Russian navy, the presence of foreign fleets was unnecessary to Turkey, the Treaty of Paris, while limiting the number of vessels to be kept within the Black Sea by the two Powers respectively, contained also a promise on the part of Turkey to close the Bosphorus to foreign vessels of war except in case of hostilities in which she was herself engaged; and the Black Sea was declared to be neutral. In 1870 the Russian Government seized the occasion presented by the FrancoGerman war, to escape from the obligations under which it lay, and issued a circular declaring itself to be no longer bound by that part of the Treaty of Paris which had reference to the Black Sea. Lord Granville, in answering the Russian circular, took it for granted that no breach of the treaty, by the other contracting parties, had taken place which could free Russia from her obligations, and confined himself to the question in whose hand lay the power of releasing one or more of the parties to the treaty from all or any of its stipulations. It has always been held, he says, that the right of releasing a party to a treaty belongs only to the Governments who have been parties to the original instrument. The despatches of the Russian Government appear to assume that any one of the Powers who have signed the engagement may allege that occurrences have taken place which, in its opinion, are at variance with the provisions of the treaty, and though their view is not shared nor admitted by the co-signatary Powers, may found upon that allegation, not a request to those Governments for a consideration of the case, but an announcement to them that it has emancipated itself, or holds itself |