belligerent States prevented enemy consuls from departing,1 and accused one another of allowing them to suffer great indignities.2 Treaties. § 99. The doctrine was formerly held, and is even Cancellanowadays held by a few writers,3 that the outbreak of tion of war ipso facto cancels all treaties previously concluded between the belligerents, excepting only those concluded especially for war. But the vast majority of modern writers on International Law have abandoned this standpoint, and the opinion is pretty general that war by no means annuls every treaty. But unanimity as to what treaties are or are not cancelled by war does not exist. Neither does a uniform practice of the States exist, cases having occurred in which States have expressly declared 5 that they considered all treaties annulled through war. Thus the whole question remains as yet unsettled. Nevertheless a majority of writers agree on the following propositions, and the attitude of the belligerents during the World War seems to confirm their accuracy, at any rate on many points. (a) Treaties to which belligerents alone are parties:(1) The outbreak of war cancels all political treaties between the belligerents (as, for instance, treaties of alliance) which have not been concluded for the purpose of setting up a permanent condition of things. (2) On the other hand, it is obvious that treaties specially concluded for war are not annulled (such as treaties in regard to the neutralisation of certain parts of the territories of the belligerents). (3) Political and other treaties concluded for the 1 purpose of setting up a permanent 1 condition of things are not ipso facto annulled by the outbreak of war; but nothing prevents the victorious party from imposing by the treaty of peace alterations in, or even the dissolution of, such treaties. (4) Non-political treaties not intended to set up a permanent condition of things (such as treaties of commerce, for example) are not ipso facto annulled; but the parties may annul them or suspend them according to discretion. The plan adopted in the Treaties of Peace was to regard all treaties to which two belligerents were the only parties as having been annulled by the war, but to give to the victorious Power an option to revive them upon certain conditions.2 (b) Treaties to which many States are parties : (5) So-called law-making 3 treaties (such as the Declaration of Paris, for example) are not cancelled by the outbreak of war. The same is valid in regard to all treaties to which a multitude of States are parties (such as the International Postal Union, for example); but the belligerents may suspend them, as far as they themselves are concerned, in case the necessities of war compel them to do so, and they in fact did so during the World War. The Treaties of Peace provide that only the treaties 1 Thus American and English courts-see The Society for the Propagation of the Gospel v. Town of Newhaven, (1823) 8 Wheaton 464, and Sutton v. Sutton, (1830) 1 Russ. and M. 663-have declared that Article 9 of the treaty of November 19, 1794, between Great Britain and the United States was not annulled by the outbreak of war in 1812. See Moore, v. § 779, and Westlake, ii. p. 33; see also the foreign cases discussed by Jacomet, op. cit., pp. 168-179. 2 See the Treaty of Peace with Germany, Article 289. Great Britain has accordingly revived certain pre-war treaties with Germany. See London Gazette, July 23, 1920. As to Austria, see London Gazette, November 2, 1920. 3 See above, vol. i. §§ 18, 492, 555568c. 4 The Institute of International Law, at its meeting at Christiania in 1912, adopted some rules with regard to the effect of war on treaties. See Annuaire, xxv. (1912), p. 648; A.J., vii. (1913), p. 153 (where the rules are translated); and Davis in the Proceedings of the American Society of International Law, vi. (1912), pp. 124-132. of an economic or technical character' therein mentioned are to be again applied between the Central Power concerned and those of the Allied and Associated Powers party thereto,1 and some of them only with modification. Treaties neither economic nor technical, but to which many States are parties, are not referred to in the Peace Treaties, but the Powers correctly treat them as being again in force. Position gerents' on Enemy § 100. The outbreak of war affects likewise such Presubjects of the belligerents as are at the time within carious the enemy's territory. In former times they could all of Belliat once be detained as prisoners of war, and many Subjects States, therefore, concluded in time of peace special Territory. treaties for the time of war expressly stipulating for a period during which their subjects should be allowed to leave each other's territory unmolested.2 Through the influence of such treaties, which became pretty general during the eighteenth century, it became an international practice that, as a rule, enemy subjects must be allowed to withdraw within a reasonable period, and no instance of the former rule occurred during the nineteenth century. Although some 5 writers even nowadays maintain that, according to strict law, the old rule is still in force, it may safely be said that there 1 See above, vol. i. § 581b, where this proceeding is discussed. 2 See a list of such treaties in Hall, 4th ed., § 126, p. 407, n. 1. * See Garner, i. § 40. 4 With regard to the 10,000 Englishmen who were arrested in France by Napoleon at the outbreak of war with England in 1803, and kept as prisoners of war for many years, it must be borne in mind that Napoleon did not claim a right to make such civilians prisoners of war as were at the outbreak of war on French soil. He justified his act as one of reprisals, considering that England had violated the Law of Nations by beginning hostilities with the capture of two French merchant- 5 See Twiss, ii. § 50; Rivier, ii. See Land Warfare, § 12. The author had, however, intended to consider whether this rule could still be maintained, having regard to the practical difficulty caused by the interruption of communications and the importance attaching nowadays to man-power and espionage. is now a customary rule of International Law, according to which all such subjects of the enemy as are not real or potential members of his armed forces must be allowed a reasonable period for withdrawal. On the other hand, such enemy subjects as are active or reserve officers, or reservists, and the like, may be prevented from leaving, and be detained as prisoners of war; for the principle of self-preservation must justify belligerents in refusing to furnish each other with resources which increase their means of offence and defence.1 Several States, on entering the World War, allowed enemy subjects on their territory to depart within a certain time. For example, Great Britain permitted Germans to leave up to August 10, 1914.3 On the other hand, Germany and Austria-Hungary prevented all enemy subjects from departing at the outbreak of the war.4 However that may be, a belligerent need not allow 5 enemy subjects to remain on his territory, although this is frequently done. Thus, during the Crimean War, Russian subjects in Great Britain and France were allowed to remain there, as were likewise Russians in Japan and Japanese in most parts of Russia during the Russo-Japanese War, and Turks in Italy during the Turco-Italian War. Moreover, during the World War, almost all the belligerents allowed enemy subjects resident within their territory to remain. On the other hand, France expelled all Germans during the Franco-German War in 1870; the former South African Republics expelled most British subjects when war broke out in 1899; Russia, during the Russo-Japanese War, expelled Japanese from her provinces in the Far East; 1 See Land Warfare, § 13, and the author's Introduction to Roxburgh, The Prisoners of War Information Bureau (1915). But a number of publicists-see, for instance, Spaight, p. 88-put forward a rule that even reservists must be allowed to leave. 2 See Garner, i. §§ 44-61. 3 Statement issued by the Home Office on August 5, 1914. 4 Garner, i. § 45; Satow in the Grotius Society, ii. p. 8. 5 See above, vol. i. § 324. 6 See details in Garner, i. §§ 46-61. in May 1912, during the Turco-Italian War, Turkey decreed the expulsion of all Italians, certain classes excepted; and, during the World War, German subjects not of military age were expelled from Portugal and certain British colonies. In case a belligerent allows the residence of enemy subjects on his territory, he can, of course, impose conditions, such as an oath to abstain from all hostile acts, or a promise not to leave a certain region, and the like. Restrictions were imposed upon resident enemy aliens in almost all belligerent States during the World War.1 Moreover, an enemy subject who is allowed to stay must not join the forces of his home State, or assist them in any way, if they occupy a part of the country in which he resides. If he does so, he is liable to be punished for treason2 after their withdrawal. During the World War, many belligerents not only placed all enemy aliens under strict supervision, but adopted a policy of general internment. Such aliens were looked upon as a peril to the State, and were themselves in danger from mob violence when national passions waxed hot. Thus Great Britain had in the early months of the war interned only about a third of the Germans and Austrians in the United Kingdom. But when the torpedoing of the Lusitania, and the drowning of more than 1100 innocent men, women, and children, so incensed public opinion that riots broke out all over the British Empire, and the life of enemy subjects was in danger, most of them were either interned or repatriated.3 France and Germany 5 also resorted to general internment, but the United States did not. Garner, ibid. 2 See above, vol. i. § 317, where the case of De Jager v. AttorneyGeneral for Natal, [1907] A.C. 326, is discussed. 3 As to the various agreements for the exchange and repatriation of enemy subjects unfitted for military service by age or sex or infirmity, see Garner, i. §§ 45, 53. 4 Garner, i. § 52. Garner, i. § 61. |