mission under the convention of November 25, 1862. Mr. Hassaurek, the American commissioner, in the opinion for the commission, said: "That a state never loses any of its rights, nor is discharged from any of its obligations, by a change in the form of its civil government, is one of the fundamental principles of international law. It applies, by analogy, to cases such as the one before us, where one part of a nation separates itself from the other. It is evident that on the creation of a new state, by a division of territory, that new state has a sovereign right to enter into new treaties and engagements with other nations; but until it actually does, the treaties by which it was bound as a part of the whole state will remain binding on the new state and its subjects."44 The government of the United States, upon recognizing Texas as an independent state, gave notice that it considered the treaty of amity, commerce and navigation concluded between the United States and Mexico, April 5, 1831, as mutually binding upon the United States and Texas. The treaty was subsequently recognized by Texas. In the Berlin Congress of 1878, when 44 Moore, Int. Arb., III, 3221, 3223. 45 H. Doc. No. 12, 27th Cong., 2d Sess. Mr. Forsyth, Secretary of State, in a communication to Messrs. Wharton and Hunt, Texan commissioners, March 13, 1837, said: "The President considers the Texan flag as entitled to all the privileges stipulated for the Mexican flag in the treaty between the United States and Mexico, and the United States will claim for their flag all the benefits of that treaty in the Texan ports until some other arrangement shall be made between the two governments." Notes to Texan Legation, VI, 1. In a note dated June 23, 1838, Mr. Irion, Secretary of State of Texas, advised Mr. La Branche, Am. chargé d'affaires in Texas: "With regard to your note of the 23 of March transmitting a copy of the Treasury circular of the United States, dated 2d February, by which the fifth and sixth articles of the treaty of amity, navigation and commerce existing between the United States and Mexico are declared to be binding on Texas, I have the honor to state that the President having considered the subject directs me to inform you that the stipulations indicated by the circular will be observed by this government. The application on the part of the United States relative to the treaty aforesaid, calling on this government for a declaration whether or not it considers the whole treaty obligatory, has also been submitted to his Excellency for consideration, respecting which I am likewise directed to state that it will be observed by this government till a new treaty shall be formed." Enclosure in despatch No. 11 of June 24, 1838. See also note from Mr. Irion, December 8, 1838, enclosed in despatch No. 14, of December 12, 1838. “The treaty between the United States and Mexico of the 5th of April, 1831, being considered and acknowledged as mutually binding upon the United 46 the subject of the future status of Servia and Bulgaria was under consideration, Bismarck declared that he regarded it as a principle of the law of nations, which could only be confirmed by a declaration of the congress, that a province might not by separation from a state enfranchise itself from the treaties to which it had up to that time been subjected. It was expressly stipulated in the general treaty, signed at the close of the congress, with respect to Servia,-which was constituted an independent statethat the conditions of commercial intercourse with foreign countries, the immunities and privileges of foreign subjects, as well as the rights of consular jurisdiction and protection, should remain in full force until replaced by new arrangements." With respect to Bulgaria, which was constituted an autonomous principality, nominally under the suzerainty of the Sultan, it was provided that all treaties existing between the Porte and foreign powers should be maintained.48 Upon the dissolution of the union between Norway and Sweden in 1905, each of these states gave notice that it considered the treaties theretofore concluded in common and applicable to both kingdoms, as continuing in force and binding on each of them separately. Many treaties had been concluded separately for the two kingdoms, and no question could arise as to the survival of such treaties." It was the expressed view of the government of the United States that the treaties then existing between the United States and Sweden and Norway were severally binding on each of the two kingdoms and unaffected by the separation.50 The British government in acknowledging the receipt of the notices observed that the dissolution of the union undoubtedly afforded Great Britain the right to examine de States and the republic of Texas, you will make yourself familiar with its provisions." Mr. Forsyth, Secretary of State, to Mr. Flood, chargé d'affaires in Texas, April 25, 1840. MSS. Inst. I, 22. See, for termination of the commercial articles of the treaty pursuant to notive given by the Texan government, May 19, 1841, Id., 32. 46 69 Brit. and For. State Papers 934, 961. 47 Art. XXXVII. Hertslet's Map of Europe by Treaty, IV, 2787. 48 Art. VIII. See also Arts. X and XXXVIII. 49 Mr. Grip, Swedish minister, to Mr. Root, Secretary of State, November 20, 1905. For. Rel., 1905, p. 872. Mr. Hauge, Norwegian chargé d'affaires, to Mr. Root, Secretary of State, December 7, 1905, Id., p. 873. 50 Mr. Root, Secretary of State, to the Japanese minister, November 10, 1905. Id., pp. 867, 868. novo the treaty engagements by which it was bound to the "dual monarchy." If the union, which had existed since 1815, be considered merely personal, in which both states had a common head or representative, a common agent, in the conduct of foreign relations, no doubt could exist as to the continuing force of the treaties, since a mere dissolution of the union would effect no change in the identity of the two states, the real parties to the treaties. Upon the division in 1831 of the republic of Colombia into the three republics of Ecuador, New Granada and Venezuela, each of the republics so formed assumed a pro rata share of the existing financial obligations, and asserted the right to the benefits of the treaties previously concluded by Colombia.52 A general treaty of commerce and navigation concluded with the United States, November 30, 1836, by Santa Cruz as "Protector of the North and South Peruvian States, President of the Republic of Bolivia, charged with the direction of the foreign relations of the Peru-Bolivia Confederation," was repudiated by Peru after the dissolution of the Confederation on the ground that it had been concluded by an invader and not in accordance with the constitutional requirements. Mr. Buchanan, Secretary of State, maintained that Peru was not released from the treaty by the mere fact of dissolution. The question was disposed of by the conclusion of a new treaty.58 51 Marquess of Lansdowne to Baron de Bildt, Swedish minister, November 16, 1905; and Marquess of Lansdowne to M. Irgens, November 23, 1905. 98 Brit. and For. State Papers 833-837. 52 Moore, Int. Arb., III, 3225. Mr. Forsyth, Secretary of State, to Mr. Semple, chargé d'affaires at Bogata, February 12, 1839. MSS. Inst. to Colombia, XV, 67; same to same, October 20, 1839, Id., 69; Mr. Forsyth to Mr. McAfee, July 18, 1836, Id., 30. A convention of commerce and navigation concluded April 18, 1829, between Great Britain and Colombia, was expressly adopted and confirmed as to Venezuela by a convention concluded October 29, 1834. Handbook of Commercial Treaties between Great Britain and Foreign Powers (1912), 1037. 53 In 1835, Santa Cruz, the President of Bolivia, invaded Peru, assumed control of the government, and in 1836 issued a proclamation dividing Peru into two States-North Peru and South Peru, which together with Bolivia he designated the Peru-Bolivia Confederation. In this capacity he concluded treaties with the United States and Great Britain. In 1839, he was driven from Peru. See Señor Osma, Peruvian minister, to Mr. Buchanan, Secretary of State, April 22, 1847. MSS. Notes from Peruvian Legation; Mr. Buchanan to Sr. Osma, June 9, 1847. MSS. Notes to Peruvian Legation, I, 2. See also declaration signed February 9, 1848, by Mr. Buchanan and Sr. Osma. §180. Rebus Sic Stantibus.-It appears to have been a maxim of the early writers on the civil law that conventio omnis intelligitur rebus sic stantibus.54 Grotius limits the application of the maxim, as a condition to the continuing validity of treaties, to cases in which it is clear that the existing state of things was the sole cause of the agreement.55 And Vattel says: "But we ought to be very cautious and moderate in the application of the present rule: it would be a shameful perversion of it, to take advantage of every change that happens in the state of affairs, in order to disengage ourselves from our promises: were such conduct adopted, there could be no dependence placed on any promise whatever. That state of things alone, in consideration of which the promise was made, is essential to the promise: and it is only by a change in that state, that the effect of the promise can be lawfully prevented or suspended."56 G. F. von Martens also says that a "total change of circumstances which, at the time of making the treaty, had the force of conditions, renders the contract no longer obligatory, and when the object of the treaty ceases to exist, the treaty ceases also."57 Phillimore states the rule as follows: "When that state of things which was essential to, and the moving cause of, the promise or engagement, has undergone a material change, or has ceased, the foundation of the promise or engagement is gone, and their obligation has ceased. This proposition rests upon the principle that the condition of rebus sic stantibus is tacitly annexed to every covenant."58 The rule has been adopted by most modern writers. Oppenheim says: "The vast majority of publicists, as well as the governments of the members of the family of nations, defend the principle conventio omnis intelligitur rebus sic stantibus, and they agree, therefore, that all treaties are concluded under the tacit condition rebus sic 54 An early invocation of the principle is found in the argument of Lyciscus, the Acarnarian envoy at Sparta, recorded at Polybius as follows: "If the circumstances are the same now as at the time when you made alliance with the Aetolians then your policy ought to remain on the same lines. * But if they have been entirely changed, then it is fair that you should now deliberate on the demands made to you as on a matter entirely new and unprejudiced." Bk. IX, 37. Cited in Phillipson, Int. Law and Custom in Ancient Greece and Rome, I, 409. * * 55 Bk. II, c. XVI, §25. 56 Bk. II, c. XVII, §296. 57 Law of Nations (Cobbett's translation, 4 ed.), 352. 58 Int. Law (2 ed.), II, 109. stantibus." It has been held by the Court of Claims of the United States, in applying the principles of international law governing the relations between the United States and France during the period which gave rise to the so-called French spoliation claims, that the United States was justified in annulling in 1798 the treaties concluded with France in 1778, because of the infractions on the part of France and of the change in essential conditions; and that the treaties thereupon ceased to operate as international compacts.60 The court, by Davis, J., said: "A treaty which on its face is of indefinite duration and which contains no clause providing for its termination may be annulled by one of the parties under certain circumstances. As between the nations it is in its nature a contract, and if the consideration fail, for example, or if its important provisions be broken by one party, the other may, at its option, declare it terminated. * * We are of opinion that the circumstances justified the United States in annulling the treaties of 1778; that the act was a valid one, not only as a municipal statute but as between the nations; and that thereafter the compacts were ended."61 The danger in the application of a rule of such uncertain standard is pointed out by Vattel. It may easily serve as a pretext for release from onerous treaty obligations. Such a change as would justify the invocation of the rule would seldom not be recognized by the other party as ground for new negotiations in respect of the subject matter based upon other considerations. Such was the case when Russia sought in 1870 release from the obligation imposed by the treaty of Paris of 1856 with respect to the neutralization of the Black Sea.62 Likewise, the abrogation of the treaty of 1850 between the United States and Great Britain, concerning an interoceanic canal, was accomplished by the substitution of a new convention in 1901, wherein the change of conditions was 59 Int. Law (2 ed.), I, 572. See Hall (6 ed.), 342; F. de Martens (translation by Léo, 1883), 510-515; Klüber (2 ed.), §165; Bluntschli (translation by Lardy), Afts. 415, 460; Heffter (translation by Bergson, 1883), §81; Bonfils (7 ed.), §857; Taylor, §394; S. Doc. No. 31, 63d Cong., 1st Sess.; and Nys (1912 ed.), II, 532. 60 Hooper v. United States (1887), 22 C. Cls. 408; The Brig William (1888), 23 C. Cls. 201. 61 22 C. Cls. 408, 416, 425. 62 See Earl Granville's reply to the Russian note of denunciation, Hertslet's Map of Europe by Treaty, III, 1898, 1900. |