over German property in British territory under the Treaty of Versailles.

Finally, treaties may be terminated by a process of denunciation.1 One of the parties may denounce a treaty according to provisions made in the text of the instrument itself. Or one of the parties may denounce the treaty according to the rules of common international law. This may take place when it is discovered that there are defects in its original validity due to action by the negotiators in excess of their powers or due to duress applied to the negotiators. The proper stage at which to act upon such facts is that of ratification, and ratification may be taken to cover any such facts as these which are known at the time. But newly discovered facts of this nature will probably justify and-what is more important for our purposes

-probably lead to denunciation later. Beyond this, denunciation will be likely to follow upon the failure of one party to perform its obligations under the treaty, and also such a change in circumstances in either of the states parties to the agreement or in general international relations as to make the treaty dangerous to the existence of one of the parties or to invalidate the exchange of benefits upon which it is based. The denunciation in such a case will give a right to compensation to the other party for benefits actually conferred and for loss of compensating benefits, but no state can hope to hold another to treaty obligations apart from some substantial degree of mutual benefit or in circumstances endangering the safety of the state. Indeed, it is this very reason, turned in the other direction, that entitles the second party to compensation upon denunciation by the first.

By these processes treaties are made, revised, abandoned, replaced, and extended, and the web of international treaty obligations is kept in constant repair and effective

+

THE

CHAPTER XI

THE MODERN TREATY SYSTEM

HE negotiation of treaties according to the processes just described has gone on steadily and with an ever accelerating frequency during the past four or five centuries. The results appear in the enormous mass of treaties and treaty obligations existing at any one time, a body of material which is constantly renewed, constantly revised, and which is constantly increasing in extent and in its internal complexity. Each decade sees an increase in the number of treaties concluded, the number of subjects taken up for settlement by the process of treaty negotiation, and the degree to which the states are involved in this system of relations.

The treaty nexus may be studied as it stands at any given point in time; and an analysis of existing treaty rights at any given point in the past gives a fairly adequate understanding of the existing state system and the existing system of international practice at that time. Moreover, despite the fact that, with each advancing decade, and almost with each new treaty made, some old treaty passes out of effective existence as a statute of binding obligation,so that the vast majority of all the treaties on record are now obsolete, and only the more recent ones, such as have not expired and have not been superseded or abrogated by succeeding compacts, are directly effective, these older treaties are not of merely historical interest. For the provisions which they contain furnish evidence regarding the principles upon which the nations may be presumed to desire to regulate their relations, in the absence of any conventional agreements in effect to the contrary. In other

words, they provide the materials from which the rules of the historic common international law may be inferred by a process of induction. Finally, it is with the external aspects of this net-work of treaties in which the modern states of the world are and have been constantly enlaced that we are chiefly concerned, and not with the contents of those treaties; for this purpose the treaty system of a decade ago is as useful for study as that of today.

Probably the best way to realize the nature and extent of the treaty system is to examine some of the greater treaty collections which have been made in the past, and some of which are maintained continuously at the present time. These collections are either official or unofficial; they are made, that is, either by the states themselves or by private scholars. Each state, of course, keeps a record of the treaties to which it is a party and which are still in effect.1 Very few states, if any, however, maintain systematic collections of old treaties. When a treaty becomes obsolete it is relegated to "the archives," and in many cases to oblivion. It remains for private scholars, assisted, at times, by public aid, to collect and edit and publish complete collections of international treaties. And the relative rapidity with which treaties accumulate, are rendered obsolete, or are revised or amended makes the task a gigantic one. All sorts of physical, legal, and personal difficulties are involved. Nevertheless, such collections are made, and they provide the best exhibits of the treaty system that are available.3

In a collection of treaties published at Amsterdam in the years 1726-39 Jean Du Mont assembled several hundreds of international agreements contracted by European states between 800 A.D. and the eighteenth century. The collection fills thirteen huge volumes, in one or two parts 1 Outline, 77.

2

Am. Hist. Rev., V, 436 (April, 1900); VI, 395 (January, 1901); IX, 452 (April, 1904).

Klüber, Supplément, §§ 6-23; Tentative List, 7-12.

Klüber, as cited, § 6; List, 8; full title: Corps Universal Diplomatique du Droit des Gens, 8 vols. 1726-1731, 5 vols. 1739.

each, and bears testimony to the manner in which the practice of treaty negotiation grew with the appearance and early development of the modern state-system.

The collection of Du Mont was later supplemented by a collection of the European treaties concluded in the eighteenth century prior to 1772, which was published at Leipsic in the years 1781-95 by Friedrich A. W. Wenck. The number of treaties for these three quarters of a century is greater than that of the treaties in Du Mont for any preceding century, just as, in Du Mont, the earlier centuries are surpassed by the later ones. These two great collections provide a very satisfactory introduction to the modern treaty system.

The true measure of the body of treaties concluded among modern states is to be found, however, in the monumental collection begun by G. F. de Martens and bearing his name in its entirety. This series has been continued to date since 1791 and in 1920 numbered just over one hundred volumes. The series has been published in Göttingen and Leipsic in French, and is divided into the Receuil, Supplément, Nouveau Receuil, Nouveaux Supplémens, and other parts. It is, for this reason, and for other mechanical reasons, somewhat difficult to use; but there is no difficulty in realizing the significance of its contents, even from an inspection of the Tables Générales published from time to time. The treaties included date mainly from 1761, although one group of volumes in the series includes

1 Klüber, as cited; List, 12; full title: Frid. Aug. Guil. Wenckii ... Codex juris gentium recentissimi.

2Klüber, as cited; List, 10-11; full title of first group: Receuil des principaux traités d'alliance, de paix, de trève . . . conclus par les puissances de l'Europe.

3

Receuil, 7 vols., 1791-1801; Supplément, 10 vols., 1802-1828; Receuil, 2. ed., rev. et aug., 8 vols., 1817-1835; Nouveau Receuil, 16 vols., 1817-1841; Nouveaux Suppleméns, 3 vols., 1839-1842; Nouveau Receuil Général, 20 vols., 1843-1875; Nouveau Receuil Général, 2o sér., 35 vols., 1876-1908; Nouveau Receuil Général, 3o sér., vols. 1-8, etc., 1909-1915, etc.

In 1837-1843, 2 vols., covering the materials published prior to 1843; in 1875, 2 vols., covering all materials published prior to 1875; in 1900 and 1910, 2 vols., covering the 2° série."

treaties dating between 1494 and 1760 which do not appear in Du Mont or Wenck.1

The treaties in Martens prior to 1920 number over five thousand. These treaties involve over one hundred independent states, some of which, like most of the treaties recorded in these volumes, have passed into history. They deal with all possible subjects of international negotiation.

Finally, the treaties of American states are to be included in this review. The treaties concluded up to 1913 by the United States with other states have been collected and edited by W. M. Malloy and Garfield Charles, and were published in three volumes in 1910 and 1913.2 There are on record about six hundred treaties and other international agreements between the United States and other Powers prior to 1920. Carlos Calvo has performed the same service, in part, for Latin America, by publishing a collection of all treaties concluded by Latin American states from 1493 to 1822.3 This collection runs to sixteen volumes and must be supplemented by collections of treaties concluded by Latin American states in the past century.1

5

In addition to these five great collections, which are duplicated in part by collections of other scholars, such as Garden, Koch, Lamberty, and others, there are many collections for individual nations and for individual conferences where treaties have been produced. Such are the collections of De Clercq for France, of Rymer and of Hertslet and others for Great Britain, of Lagemans for the Netherlands, on one hand, and the many collections of the conventions signed at the Peace Conference at the Hague in 1899 and 1907.7

1 The first volumes of the Supplément.

2 Sen. Doc. 357, 61 Cong., 2 Sess., and Sen. Doc. 106, 62 Cong., 3 Sess. 'List, 7.

"Colección de tratados celebrados por la República Argentina, Publicación oficial, 1863, List, 22; Colección de tratados celebrados por la República de Chile, 1853-1875; List, 26, et cetera.

List, 8, 9.

Same, 34, 44, 45, 66.

'Same, 13-19.