February 2, 1848 expressly provided that the treaty of commerce and navigation between the two countries of April 5, 1831, with the exception of the additional article thereto, was thereby "revived." By the treaty of peace between Austria and Sardinia signed at Milan, August 6, 1849, all treaties between the parties in force at the outbreak of the war were fully renewed and confirmed so far as not altered by that treaty.88 By the treaty of peace between Prussia and Denmark, signed at Berlin, July 2, 1850, all treaties were "re-established." In the treaty of Paris of March 30, 1856, at the close of the Crimean war, it was expressly stipulated that, until the treaties or conventions which existed before the war between the belligerent powers had been either renewed or replaced by new agreements, trade should be carried on in accordance with the regulations in force before the war; and that the subjects of the respective parties should in all other matters be treated upon the footing of the most-favorednation. The treaty of Zurich of November 10, 1859, between Austria, France and Sardinia, confirmed as between Austria and Sardinia the treaties in force at the outbreak of the war so far as compatible with the new treaty. No such renewal was provided for as between Austria and France. In the treaty of peace between Austria, Prussia and Denmark signed at Vienna, October 30, 1864, all treaties concluded before the war not abrogated or modified by the treaty were "re-established in their vigor."92 The treaty of peace between Austria and Prussia, signed at Prague, August 23, 1866, provided that all the conventions concluded between the contracting parties before the war were thereby again brought into force so far as by their nature they had not lost their effect by the dissolution of the relations of the Germanic Confedera

90

91

87 Article XVII. See Richardson, Messages and Papers of the Presidents, IV, 537.

88 Art. II.

89 Art. II.

90 Art. XXXII. In the conference on March 25, 1856, Count Walewski had observed that, the state of war having invalidated the treaties which had existed between Russia and the belligerents, it was proper to insert a provisional stipulation as to the commercial relations of the parties. 46 Brit. and For. State Papers 17, 99.

91 Art. XVII.

92 Art. II.

tion.93 The treaty of peace between Austria and Italy signed at Vienna, October 3, 1866, likewise made provision for the temporary renewal of treaties. In the treaty of Frankfort of May 10, 1871, at the close of the Franco-Prussian war, it was agreed that, the treaties of commerce with the different Germanic States having been annulled by the war, the governments of the two countries would adopt as the basis of their commercial relations reciprocal most-favored-nation treatment. The article provided further that the conventions of navigation, and those relative to service of international railroads, and for the reciprocal protection of works of art should be renewed.95 An additional convention signed December 11, 1871, revived, with reservations, treaties existing before the war. In the preliminary treaty of peace of San Stefano between Russia and Turkey, signed March 3, 1878, it was provided that all treaties of commerce and navigation, and those relative to the status of Russian subjects within Turkish dominions, and which had been abrogated by the state of war, should come into force again so far as compatible with the new treaty." By the treaty of peace between Chile and Peru signed at Lima, October 20, 1883, it was agreed that, until a special treaty should be concluded, the mercantile relations between the two countries should be the same as had existed before the war.98 The agreement of truce between Chile and Bolivia signed April 4, 1884, which served as a treaty of peace, provided for mostfavored-nation treatment in commercial privileges.99 In the

96

93 Art. XIII. In the treaties of peace concluded by Prussia with the other German States-with Württemburg, August 13, 1866 (Art. VII), with Baden, August 17, 1866, (Art. VII), with Bavaria, August 22, 1866 (Arts. VII and VIII), with Hesse-Darmstadt, September 3, 1866 (Arts. VII and VIII), with Saxe-Meiningen, October 8, 1866 (Art. II), and with Saxony, October 21, 1866 (Arts. XI and XII),-provisions were inserted for the renewal of treaties. Hertslet's Map of Europe by Treaty, III, 1703, 1708, 1713, 1731, 1769, 1774.

94 Arts. XX and XXI.

95 Art. XI.

96 Art. XVIII.

97 Art. XXIII.

98 Art. XI. The treaty of peace between Chile and Spain of June 12, 1883 provided that, until new treaties should be concluded, the state of affairs which preceded the interruption of their relations was revived. Art. III.

99 Art. V.

treaty of peace between China and Japan signed April 17, 1895, it was recognized that all treaties between the two countries had, "in consequence of the war," come to an end. The contracting parties engaged to appoint immediately upon the exchange of ratifications plenipotentiaries to conclude new treaties of commerce and navigation.100 During the peace negotiations between the United States and Spain at Paris, the American commissioners, under instructions, proposed to insert in the treaty a clause expressly to provide that certain named treaties (comprising those which had not already been executed or become obsolete) should "be held to continue in force."101 The Spanish commissioners rejected the proposal on the ground that the determination of what treaties were obsolete would involve a more extended examination than the commission was in a position to give; but they added that this did not imply that the two governments might not later take up the subject. The American commissioners further urged the express renewal of the articles on extradition, trade-marks and copyrights, and proposed to revive them temporarily by a modus vivendi, but this proposition was also rejected. Accordingly, no provision was inserted in the treaty of peace for the renewal of treaties. A new general treaty of amity and commerce was concluded, July 3, 1902. In Article XXIX of this treaty it is declared that all treaties and agreements between the United States and Spain "prior to the treaty of Paris shall be expressly abrogated and annulled" with the exception of the claims convention of February 17, 1834, "which is continued in force by the present convention." A new extradition convention was concluded, June 15, 1904.102 In the treaty of peace between Japan and Russia concluded at Portsmouth, September 5, 1905, it was expressly provided that, the treaty of commerce and navigation between the two countries having been annulled by the war, the two governments engaged to adopt as the basis of their commercial relations, pending the conclusion of a new treaty for that purpose, the system of reciprocal most-favored-nation treat

100 Art. VI.

101 S. Doc. No. 148, 56th Cong., 2d Sess., 7; S. Doc. No. 62, 55th Cong., 3d Sess., 249, 254.

102 The extradition conventions of 1877 and 1882 had been considered as at an end. See Mr. Hay, Secretary of State, to the governor of Porto Rico, June 19, 1900. Moore, Int. Law Digest, IV, 257. For the restoration of privileges of copyright registration, see supra, 451.

ment in respect of import and export duties, transit and tonnage dues, and the admission and treatment of agents, subjects, and vessels of the one in the territory of the other.103 The treaty of peace between Italy and Turkey signed at Lausanne, October 18, 1912, provided that all the treaties, conventions and engagements of any kind and nature, in force between the parties before the declaration of war, should again enter into immediate effect, and that the two governments, as also their respective subjects, should be placed toward one another in the identical situation in which they were before the outbreak of hostilities.104 No provision for the renewal of treaties appears to have been made in the treaty of peace between Turkey and the Balkan Allies signed at London, May (17) 30, 1913,105 or in the treaty of peace between Bulgaria and Roumania, Greece, Montenegro and Servia signed at Bucharest, (July 28) August 10, 1913.106 The treaty of peace between Bulgaria and Turkey signed at Constantinople, September (16) 29, 1913, contained a provision that the two contracting parties bound themselves to "put back into force," immediately after the signing of the treaty, for a period of one year, the convention of commerce and navigation of February (6) 19, 1911, and the consular declaration of (November 18) December 2, 1909. It was further agreed that a mixed commission should be appointed to negotiate new treaties in reference to these subjects.107 The treaty of peace between Greece and Turkey signed at Athens, November (1) 14, 1913, provided that all treaties, conventions and acts, concluded or in force at the time diplomatic relations between the parties were broken off, should be "restored in full force" upon the signature of the treaty.108 Similar provision was made in the treaty of peace between Servia and Turkey signed at Constantinople, March (1) 14, 1914.108

In the British-Venezuelan protocol signed February 13, 1903, for the adjudication of claims of British subjects against Venezuela, it was expressly agreed that inasmuch as it might be con

103 Art. XII.

104 Art. V. Am. Journal of Int. Law, Sup., VII, 59; Martens, Recueil de Traités (3 series), VII, 8.

105 Am. Journal of Int. Law, Sup., VIII, 12.

106 Id., 13.

107 Art. IV. Id., 31.

108 Art. II. Id., 46.

108a Art. I. Martens (3 series), VIII, 643.

tended that the establishment of a blockade of Venezuelan ports by the British naval forces had ipso facto created a state of war between Great Britain and Venezuela, and that any treaty between the two countries had thereby been abrogated, it should be recorded in an exchange of notes that the convention between the two countries of October 29, 1834 should be deemed to be renewed and confirmed pending the conclusion of a new treaty of amity and commerce.109 By exchange of notes on even date the treaty of 1834 was expressly renewed and confirmed." The protocol between Venezuela and Italy signed on the same date, February 13, 1903, likewise contained a provision in which it was expressly declared that the treaty of amity, commerce and navigation between the two countries of June 19, 1861 was renewed and confirmed.111 In the protocol concluded between Venezuela and Germany, no such provision is found.112

112

110

§182. Effect of Infractions.-The difficulty of compelling specific performance, or of obtaining compensation in mitigation of damages, by means other than those which do not assure full reparation to the innocent party, renders it even more necessary and equitable, than in the case of private contracts, that upon a breach of a treaty the continuance of the obligation should be made dependent upon the will of the party faithfully performing. But what constitutes a breach of this character? In defense of the denunciation in 1870 of the provisions of the treaty of Paris of 1856 for the neutralization of the Black Sea, it was urged on the part of the Russian government that the treaty with

109 Art. VII.

110 Handbook of Commercial Treaties, &c., between Great Britain and Foreign Powers (1912), 1039.

III Art. VIII.

112 The tribunal of arbitration constituted under the protocols of May 7, 1903, to determine the question of preferential treatment, in its decision rendered, February 22, 1904, declared that a state of war between Germany, Great Britain and Italy, on the one hand, and Venezuela, on the other, had existed as the result of the blockade of the Venezuelan ports instituted by these three powers. It may also be noted that in the treaty of commerce concluded between the United States and China, October 8, 1903, after the Boxer uprising of 1900, it was expressly agreed that all of the provisions of the several treaties between the two countries which were in force on January 1, 1900 were continued in force and effect, except so far as modified by the new treaty or other treaties to which the United States was a party. Art. XVII.