Page images

Article IX provides that collective agreements continue in force in the relations of the belligerents with other Powers, and cannot be altered in the treaty of peace to the disadvantage of such third Power, without its participation or consent. Indeed Articles X and XI are, in substance, restatements of existing law. The former provides that treaties between belligerents and third states are not affected by war; the latter contains the requirement that treaties governing the operations of war apply only in the case in which both of the belligerents are signatory parties, unless a contrary stipulation or other provision exists which leaves no doubt as to the intention of the parties.

It has been seen that the field covered by the project is one that, under the existing rules of international law, is to an unusual degree uncertain and, for that reason, unsatisfactory. The project submitted by the Institute of International Law does something to remedy this state of affairs, and is to that extent deserving of praise. But the project itself is to some extent wanting in that clearness and precision which an instrument should possess which is offered to the world with a view to remedy defects which are admitted to exist in an important branch of the law of nations.

Project of the Institute of International Law, Adopted at its Session in Christiania, August, 1912.



Treaties between Belligerent States


The outbreak and continuance of hostilities do not impair the force of treaties, conventions and agreements concluded by belligerents with each other, whatever may be their wording and object.


Nevertheless war rightfully puts an end to:

1. Agreements of international associations; treaties establishing a protectorate and supervision; treaties of alliance, of guarantee, of subsidy; treaties providing a right of security or a sphere of influence; and treaties of a public nature generally.

2. Every treaty, the application or interpretation of which may have been the direct cause of the war, according to the official acts of one of the governments before the outbreak of hostilities.


In the application of the rule established in Article II, the content of the treaty must be taken into account. If there are clauses of differing purport in the same instrument, only those will be considered annulled which come under the categories enumerated in Article II. Nevertheless, the entire treaty will become void, when it possesses the character of an indivisible document.


Treaties remaining in force, the execution of which persists in spite of the hostilities, must be observed as in the past. Belligerent states can disregard them only in so far and as long as the necessities of war require such a course.


Articles II, III and IV do not refer to treaties concluded in consideration of the



Aside from the responsibility which the violation of these rules would entail, the rules mentioned in the preceding articles shall serve to interpret and to supply any omissions in a treaty of peace.

Hence, if there is no formal clause in the treaty of peace, it shall be considered that:

1. Treaties affected by war are definitively annulled;

2. Treaties not affected by war, whether they have been suspended or not during the course of hostilities, are tacitly confirmed;

3. Treaties, however, whose clauses conflict with the provisions of the treaty of peace, are implicitly abrogated.

4. The abrogation of a treaty, formal or tacit, does not affect retroactively the effects produced in the past by the abrogated text.


Treaties between Belligerent States and Third States


The provisions of Articles I to VI apply, in the relations of belligerent states, to the treaties concluded between them and third states, with the following reservations:


When the obligations which bind belligerent states have the same object as their obligations to third states, they must be executed in the interest of the latter. Thus, collective treaties of guarantee remain in force, in spite of the war which has broken out between two of the contracting states.


Collective agreements remain in force in the relations of each of the belligerent states with third contracting states. They cannot be altered by the treaty of peace to the prejudice of third contracting states without the participation or the consent of the latter.


Treaties concluded between a belligerent state and third states are not affected by war.


If there is no formal clause to the contrary or a provision which leaves no doubt as to the intention of the parties, collective treaties concerning the law of war apply only if all the belligerents are parties to the convention.


On October 18, 1912, the war between Italy and Turkey was ended by the conclusion of the treaty of peace signed at Lausanne, Switzerland, and, so far as Turkey is concerned, the two countries are at peace, although, as the January number of the JOURNAL goes to press, Turkey is unfortunately still at war with the Balkan States. It was a foregone conclusion that Tripoli and Cyrenaica would remain in the possession of Italy, but the formal treaty of peace neither cedes the provinces to Italy nor recognizes in express terms the transfer of sovereignty which, in so far as Italy was concerned, had already taken place. Shortly after the outbreak of war on September 29, 1911, the Italian Government, by formal decree of November 5, 1911, and by act of parliament of February 25, 1912, declared Tripolitana and Cyrenaica under the full and complete sovereignty of the Kingdom of Italy.

Article 1 provides for an immediate and simultaneous cessation of hostilities upon the signing of the treaty, and Article 3 that the prisoners of war and hostages shall be exchanged in the shortest possible time. Tripoli and Cyrenaica are dealt with in Articles 2 and 4. Thus, Article 2 stipulates:

After the signing of the present treaty, the two governments pledge themselves to issue orders immediately for the recall of their officers and troops, and their civilian employees, that is to say, the Ottoman Government will recall these officers, troops and civilian employees from Tripoli and Cyrenaica, and the Italian Government from the islands occupied by Italy in the Ægean Sea, respectively.

That is to say, Turkish officials of all kinds are to leave Tripoli and Cyrenaica, and the Italian Government is to evacuate the islands in the Ægean which it has occupied. But a second and concluding paragraph of Article 2 makes the evacuation of the islands contingent upon the previous evacuation by Turkey of Tripoli and Cyrenaica.

In the absence of official documents, it is impossible to say whether Italy was unwilling to have its decree of annexation questioned or formally recognized by an express stipulation of the treaty, or that Turkey was unwilling, as conjectured by the London Times, to violate "the letter of the Coran law, which forbids the cession of lands of the Cailiff to the Infidel." The meaning of the article, however, is perfectly clear. The Italian decree of annexation stands unquestioned, and the evacuation of Tripoli and Cyrenaica is due to the fact that by such decree the provinces in question have been "placed under the full and complete sovereignty of the Kingdom of Italy."

Article 4 endeavors to place those who took part or were concerned in the war in the position in which they would have been, had it not broken out. Thus,

The two governments pledge themselves to grant full and absolute amnesty, the Royal Government to the inhabitants of Tripoli and Cyrenaica, and the Imperial Government to the inhabitants of the islands in the Ægean Sea subject to Ottoman sovereignty, who took part in the hostilities and those who may have compromised themselves as a result thereof, excepting offenses against the common law. In consequence, no person, to whatever class or condition he may belong, shall be prosecuted or molested in his person or property, or in the exercise of his rights by reason of his political or military acts, or for opinions expressed during the hostilities. All persons detained and deported on such grounds shall be released immediately.

Article 9 of the treaty may be regarded as a continuation of Article 4. Thus,

The Ottoman Government, wishing to show its satisfaction for the good and loyal service which it received from the Italian subjects employed in the administrations and whom it found itself compelled to dismiss at the time of the hostilities, declares itself ready to reinstate them in the positions which they had left.

An allowance shall be paid to them for the months during which they were not employed, and this interruption of service shall cause no prejudice to those of the said employes who would be entitled to a pension on account of length of service.

In addition, the Ottoman Government pledges itself to use its good offices with the institutions with which it is connected (public debt, railroad companies, banks, etc.) to the end that they may act in the same manner toward the Italian subjects who were in their service and are in a similar situation.

Article 10 deals directly with the liabilities which Italy assumes by virtue of the annexation of the two provinces, and should be read in connection with Article 2 dealing with their evacuation, as this act on the part of Turkey is tantamount to a recognition of Italian sovereignty over them. Thus,

The Italian Government pledges itself to pay annually to the treasury of the public debt, for the Imperial Government, a sum corresponding to the average of the sums which in each of the three years preceding that of the declaration of war have been assigned to the service of the public debt under the revenues of the two provinces. The amount of the said annuity shall be determined by mutual accord of two commissioners, one of whom is to be designated by the Royal Government, the other by the Imperial Government. In case of disagreement, the decision shall be submitted to an arbitral commission composed of the said commissioners and an umpire designated by mutual agreement of the two parties. If the agreement cannot be reached, each of the parties shall designate a different Power and the selection of the umpire shall be made jointly by the Powers thus designated.

The Royal Government, as well as the administration of the Ottoman public debt through the medium of the Imperial Government, shall have the right to request, in place of the aforementioned annuity, a single payment of a corresponding sum, capitalized at 4%.

In reference to the preceding paragraph, the Royal Government now acknowledges that the annuity cannot be less than two million Italian lire, and that it is ready to pay to the administration of the public debt the corresponding capitalized sum as soon as the demand for it is presented.

It is a moot question in international law whether war merely suspends or abrogates treaties existing at its outbreak. The contracting parties wisely determined that no doubt or ambiguity should exist upon this subject by providing in Article 5 that:

All the treaties, conventions and engagements of any kind, sort and nature, concluded or in force between the two high contracting parties before the declaration of war shall again enter into immediate effect, and the two governments, as also their respective subjects shall be placed toward one another in the identical situation in which they were before the outbreak of hostilities.

Such are the main provisions of the treaty of Lausanne of October 18, 1912. The remaining articles are of very considerable importance to both of the countries, but, as they are not directly connected with the war, although they are the result of it, the reader is referred to the full text, which appears in the SUPPLEMENT accompanying the present number of the JOURNAL. It should be said, however, that Italy consents to certain

[merged small][ocr errors]
« PreviousContinue »