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them, compliance may readily be inconsistent with the state of war or with the incidents of the particular war. Treaties of this kind therefore must be viewed according to circumstances, as continuing or as being suspended. Compacts of the third kind, on the other hand, must in all cases be regarded as continuing to impose obligations until they are either supplanted by a fresh agreement or are invalidated by a sufficiently long adverse prescription. Suppose, for example, that a province belonging to one of two States is held under a treaty of cession from the other. On the outbreak of war between them, if the treaty were annulled by the occurrence of hostilities, the former owner would re-enter the province as his own, or if it were suspended he would be able to exercise the rights of a sovereign there as against those of an occupant in the remainder of his enemy's territory. Neither of these things however takes place. The rights of a belligerent in territory which he has formerly ceded are identical with those which he has in territory which has never belonged to him. In both he has merely the rights of a military occupant; he may appropriate both; but neither become definitively his until the conclusion of a peace assigning the territory to him, or if his enemy refuses to treat until a due term of prescription has elapsed."

"As regards treaties of the fourth class, it would seem reasonable that they should continue or be suspended at the will of either of the belligerents. They are intended to be permanent arrangements so long as peace shall exist, and there is nothing in the fact of war to prevent them from recommencing their operation automatically with the conclusion of peace; there is therefore no reason for supposing them to be annulled. But as all social relations are suspended for the time of war, except by express or tacit permission of the sovereign, it is impossible to look upon treaty modifications of the normal social relations which are thus interrupted as being compulsorily operative during the progress of hostilities."

"Treaties of the fifth class are necessarily at least suspended by war, many of them are necessarily annulled, and there is nothing in any of them to make them revive as a matter of course on the advent of peace, -frequently in fact a change in the relations of the parties to them, effected by the treaty of peace, is inconsistent with a renewal of the identical stipulations. It would appear therefore to be simplest to take them to be all annulled, and to adopt the easy course, when it is wished to put them in force again without alteration, of expressly stipulating for their renewal by an article in the treaty of peace. In all cases in which war is caused by differences as to the meaning of a treaty, the treaty must be taken to be annulled. During hostilities the right interpretation is at issue; and it would be pedantry to press the analogy between war and legal process so far as to regard the meaning ultimately sanctioned by victory as representing the continuing obligation of the original compact. Whether the point in dispute be settled at the peace by express stipulations, or whether the events of the war have been such as to render express stipulations unnecessary, a fresh starting point is taken; a peace which, whether tacitly or in terms, gives effect to either of two interpretations, has substituted certainty for doubt, and thus has brought a new state of things into existence." *

* W. E. HALL. Intern, Law. Edit. 1880. p. 322, et seq.

§ 139. Contracts of guarantee are applicable Treaties of to all conditions that may arise in the inter-guarantee.

course of Nations.

"Unhappy experience," says Vattel, "having shown that the faith of treaties, sacred and inviolable as it ought to be, does not always afford a sufficient assurance that they shall be punctually observed, mankind have sought for securities against perfidy, for methods, whose efficacy should not depend on the good faith of the contracting parties. A guarantee is one of those means. When those who make a treaty of peace, or any other treaty, are not perfectly easy with respect to its observance, they require the guarantee of some powerful sovereign. The party who guarantees promises to maintain the conditions of the treaty and to cause it to be observed." *

The ancient custom of taking hostages (otages) as guarantees for the due observance of treaty obligations, has been done away with in modern time with regard to ordinary treaties concluded in time of peace, but is sometimes resorted to in time of war to secure the accomplishment of capitulations and other military arrangements. † The security for the fulfilment of international agreements, in time of peace, are conventions of guarantee. These consist of engagements by which a State promises to give material help to another if this other is threatened in its existence or in the peaceable enjoyment of its rights by a third Power. The convention of guarantee is also often supplementary to a treaty of peace, in which case third Powers, who have not been parties to the treaty to be guaranteed, undertake to secure its proper accomplishment. Material guarantee or surety for the fulfilment of tran

* VATTEL. Droit des Gens. Liv. II. Chapt. XVI. §§ 235, 241-244. † WENCK. Codex juris gentium. Vol. II. p. 352.

sitory engagement is the temporary occupation of territories, which of course ought to be restored as soon as the debt is paid or the contract is accomplished. *

"Treaties of guarantee and of surety," says Halleck, "are engagements by which a State promises to aid another against any interruption of certain specified rights, such as boundaries, territory, constitution or form of government, etc. A distinction is made between guarantee and surety; where the matter relates to things to be done by the party for whom the obligation is contracted, the surety is bound to make good the promise in default of the principal, while the guarantee is only obliged to use his best endeavours to obtain its performance from the principal himself. How far a State may legally contract this class of obligations, must depend first upon its own constitution, and, second, upon the nature of the stipulations with respect to any interference with or infringement of the sovereign rights of other independent States. † The guarantee may be to all the contracting parties equally, or only to one of them. It is an agreement to cause the fulfilment of the conditions of the treaty, but it in no way affects the conditions themselves; the party guaranteeing, therefore, has no right to interfere between the contracting parties, and decide upon the interpretation which should be given to its stipulations. But, if called upon by one of these parties, for assistance to enforce the treaty against the other, he must judge for himself whether such assistance is justly due as against the party complained of. We have pointed out, in this chapter, the distinction between guarantee and surety, where the engagements relate to things to be done by the party for whom the obligation is contracted. Sometimes one of the contracting parties puts some of its property or possessions into the hands of another, for the security of its promises, debts, or engagements. Movable things thus remitted are called pledges, towns and provinces are given in pawn or mortgaged, and if the revenues are ceded as an equivalent for the interest of the debt, it is the fact called antichresis. But these securities have no effect upon the obligations of the treaty. The party giving the security is no more excusable for refusing or neglecting to perform his engagements than if no securities whatever had been given." *

Halleck's opinion.

* VATTEL. Droit des Gens. Liv. II. Chapt. XVI. § 235-244. KLUBER. Droit des Gens. Mod. §§ 155-158. DE MARTENS. Précis, etc., § 63. WHEATON. Elem. Intern. Law. Part. III. Chapt. II.

† FLASSAN. Hist. de la Dip. Tome VIII. p. 195. PHILLIMORE. Comm. Intern. Law. Vol. II. §§ 56, et seq. The Protestant succession to the throne of England is guaranteed by Austria, France, Holland, and Spain. In the treaty of 1713, entitled: "The treaty of guarantee of the Protestant succession and of the Dutch Barrier," the British Statute 12 and 13, Will. III. Chapt. II. is recited. Examples of modern guarantees are supplied by the treaty of 1832, concluded between Bavaria, France, Great Britain, and Russia, when the monarchy and independence of Greece was guaranteed, also by the treaty of 1839 concluded between Austria, Belgium, France, Great Britain, Holland, Prussia, and Russia, when the independence and perpetual neutrality of Belgium was guaranteed,

"Questions have sometimes arisen with respect to the duration of the guarantee, and the withdrawal or release of the security. The guarantee naturally subsists until the stipulations guaranteed are performed, unless a certain time has been agreed upon for its termination. A general and indefinite treaty of guarantee may be changed or modified, the same as any other treaty. As soon as the debt is paid, or the particular engagement is accomplished for which the security was given, the security ends, and the pledge should be returned, or the towns or provinces, held in pawn

* VATTEL. Droit des Gens. Liv. II. Ch. XVI. §§ 235, 241, GUNTHER. Europ. Völkerrecht. B. II. p. 154.

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