The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Of the Dissolution and Renewal of Treaties
§ 198. Expiration of alliances made for a limited time.
An alliance is dissolved at the expiration of the term for which it had been concluded. This term is sometimes fixed, as, when an alliance is made for a certain number of years; sometimes it is uncertain, as in personal alliances, whose duration depends on the lives of the contracting powers. The term is likewise uncertain, when two or more sovereigns form an alliance with a view to some particular object; as, for instance, that of expelling a horde of barbarous invaders from a neighboring country, — of reinstating a sovereign on his throne, etc. The duration of such an alliance depends on the completion of the enterprise for which it was formed. Thus, in the last-mentioned instance, when the sovereign is restored, and so firmly seated on his throne as to be able to retain the undisturbed possession of it, the alliance, which was formed with a sole view to his restoration, is now at an end. But, on the other hand, if the enterprise prove unsuccessful, — the moment his allies are convinced of the impossibility of carrying it into effect, the alliance is likewise at an end; for it is time to renounce an undertaking when it is acknowledged to be impracticable.
§ 199. Renewal of treaties.
A treaty entered into for a limited time may be renewed by the common consent of the allies, — which consent may be either expressly or tacitly made known. When the treaty is expressly renewed, it is the same as if a new one were concluded, in all respects similar to the former.
The tacit renewal of a treaty is not to be presumed upon slight grounds; for, engagements of so high importance are well entitled to the formality of an express consent. The presumption, therefore, of a tacit renewal must be founded on acts of such a nature as not to admit a doubt of their having been performed in pursuance of the treaty. But, even in this case, still another difficulty arises: for, according to the circumstances and nature of the acts in question, they may prove nothing more than a simple continuation or extension of the treaty, — which is very different from a renewal, especially as to the term of duration. For instance, England has entered into a subsidiary treaty with a German prince, who is to keep on foot, during ten years, a stated number of troops at the disposal of that country, on condition of receiving from her a certain yearly sum. The ten years being expired, the king of England causes the sum stipulated for one year to be paid: the ally receives it: thus the treaty is indeed tacitly continued for one year; but it cannot be said to be renewed; for the transaction of that year does not impose an obligation of doing the same thing for ten years successively. But, supposing a sovereign has, in consequence of an agreement with a neighboring state, paid her a million of money for permission to keep a garrison in one of her strongholds during ten years, — if, at the expiration of that term, the sovereign, instead of withdrawing his garrison, makes his ally a tender of another million, and the latter accepts it, the treaty is, in this case, tacitly renewed.
When the term for which the treaty was made is expired, each of the allies is perfectly free, and may consent or refuse to renew it, as he thinks proper. It must, however, be confessed, that if one of the parties, who has almost singly reaped all the advantages of the treaty, should, without just and substantial reasons, refuse to renew it now that he thinks he will no longer stand in need of it, and foresees the time approaching when his ally may derive advantage from it in turn, — such conduct would be dishonorable, inconsistent with that generosity which should characterize sovereigns, and widely distant from those sentiments of gratitude and friendship that are due to an old and faithful ally. It is but too common to see great potentates, when arrived at the summit of power, neglect those who have assisted them in attaining it.
§ 200. How a treaty is dissolved, when violated by one of the contracting parties.
Treaties contain promises that are perfect and reciprocal. If one of the allies fails in his engagements, the other may compel him to fulfill them: — a perfect promise confers a right to do so. But, if the latter has no other expedient than that of arms to force his ally to the performance of his promises, he will sometimes find it more eligible to cancel the promises on his own side also, and to dissolve the treaty. He has undoubtedly a right to do this, since his promises were made only on condition that the ally should, on his part, execute every thing which he had engaged to perform. The party, therefore, who is offended or injured in those particulars which constitute the basis of the treaty, is at liberty to choose the alternative of either compelling a faithless ally to fulfill his engagements, or of declaring the treaty dissolved by his violation of it. On such an occasion, prudence and wise policy will point out the line of conduct to be pursued.
§ 201. The violation of the treaty does not cancel another.
But when there exist between allies two or more treaties, different from and independent of each other, the violation of one of those treaties does not directly disengage the injured party from the obligation he has contracted in the others: for, the promises contained in these do not depend on those included in the violated treaty. But the offended ally may, on the breach of one treaty by the other party, threaten him with a renunciation, on his own part, of all the other treaties by which they are united, — and may put his threats in execution if the other disregards them. For, if any one wrests or withholds from me my right, I may, in the state of nature, in order to oblige him to do me justice, to punish him, or to indemnify myself, deprive him also of some of his rights, or seize and detain them till I have obtained complete satisfaction. And, if recourse is had to arms, in order to obtain satisfaction for the infringement of that treaty, the offended party begins by stripping his enemy of all the rights which had accrued to him from the different treaties subsisting between them: and we shall see, in treating of war, that he may do this with justice.
§ 202. The violation of one article in a treaty may cancel the whole.2
Some writers3 would extend what we have just said to the different articles of a treaty which have no connection with the article that has been violated, — saying we ought to consider those several articles as so many distinct treaties concluded at the same time. They maintain, therefore, that, if either of the allies violates one article of the treaty, the other has not immediately a right to cancel the entire treaty, but that he may either refuse, in his turn, what he had promised with a view to the violated article, or compel his ally to fulfill his promises if there still remains a possibility of fulfilling them, — if not, to repair the damage; and that for this purpose he may threaten to renounce the entire treaty, — a menace which he may lawfully put in execution, if it be disregarded by the other. Such undoubtedly is the conduct which prudence, moderation, the love of peace, and charity would commonly prescribe to nations. Who will deny this, and madly assert that sovereigns are allowed to have immediate recourse to arms, or even to break every treaty of alliance and friendship, for the least subject of complaint? But the question here turns on the simple right, and not on the measures which are to be pursued in order to obtain justice; and the principle upon which those writers ground their decision, appears to me utterly indefensible. We cannot consider the several articles of the same treaty as so many distinct and independent treaties: for, though we do not see any immediate connection between some of those articles, they are all connected by this common relation, viz. that the contracting powers have agreed to some of them in consideration of the others, and by way of compensation. I would perhaps never have consented to this article, if my ally had not granted me another, which in its own nature has no relation to it. Every thing, therefore, which is comprehended in the same treaty, is of the same force and nature as a reciprocal promise unless where a formal exception is made to the contrary. Grotius very properly observes that “every article of a treaty carries with it a condition, by the non-performance of which the treaty is wholly canceled.”4 He adds, that a clause is sometimes inserted to the following effect, viz. “that the violation of any one of the articles shall not cancel the whole treaty,” in order that one of the parties may not have, in every slight offence, a pretext for receding from his engagements. This precaution is extremely prudent, and very conformable to the care which nations ought to take of preserving peace, and rendering their alliances durable.5
§ 203. The treaty is void by the destruction of one of the contracting powers.
In the same manner as a personal treaty expires at the death of the king who has contracted it, a real treaty is dissolved, if one of the allied nations is destroyed, — that is to say, not only if the men who compose it happen all to perish, but also if, from any cause whatsoever, it loses its national quality or that of a political and independent society. Thus, when a state is destroyed and the people are dispersed, or when they are subdued by a conqueror, all their alliances and treaties fall to the ground with the public power that had contracted them. But it is here to be observed, that treaties or alliances which impose a mutual obligation to perform certain acts, and whose existence consequently depends on that of the contracting powers, are not to be confounded with those contracts by which a perfect right is once for all acquired, independent of any mutual performance of subsequent acts. If, for instance, a nation has for ever ceded to a neighboring prince the right of fishing in a certain river, or that of keeping a garrison in a particular fortress, that prince does not lose his rights, even though the nation from whom he has received them happens to be subdued, or in any other manner subjected to a foreign dominion. His rights do not depend on the preservation of that nation: she had alienated them; and the conqueror by whom she has been subjugated can only take what belonged to her. In the same manner, the debts of a nation, or those for which the sovereign has mortgaged any of his towns or provinces, are not canceled by conquest. The king of Prussia, on acquiring Silesia by conquest and by the treaty of Breslau, took upon himself the debts for which that province stood mortgaged to some English merchants. In fact, his conquest extended no further than the acquisition of those rights which the house of Austria had possessed over the country; and he could only take possession of Silesia, such as he found it at the time of the conquest, with all its rights and all its burdens. For a conqueror to refuse to pay the debts of a country he has subdued, would be robbing the creditors, with whom he is not at war.
§ 204. Alliances of a state that has afterwards put herself under the protection of another.
Since a nation or a state, of whatever kind, cannot make any treaty contrary to those by which she is actually bound (§ 165), she cannot put herself under the protection of another state, without reserving all her alliances and all her existing treaties. For, the convention by which a state places herself under the protection of another sovereign, is a treaty (§ 175): if she does it of her own accord, she ought to do it in such a manner, that the new treaty may involve no infringement of her pre-existing ones. We have seen (§ 176) what rights a nation derives, in a case of necessity, from the duty of self-preservation.
The alliances of a nation are therefore not dissolved when she puts herself under the protection of another state, unless they be incompatible with the conditions of that protection. The ties by which she was bound to her former allies still subsist, and those allies still remain bound by their engagements to her, as long as she has not put it out of her power to fulfill their engagements to them.
When necessity obliges a people to put themselves under the protection of a foreign power, and to promise him the assistance of their whole force against all opponents whatsoever, without excepting their allies, — their former alliances do indeed subsist, so far as they are not incompatible with the new treaty of protection. But, if the case should happen, that a former ally enters into a war with the protector, the protected state will be obliged to declare for the latter, to whom she is bound by closer ties, and by a treaty which, in case of collision, is paramount to all the others. Thus the Nepesinians, having been obliged to submit to the Etrurians, though themselves afterwards bound to adhere to their treaty of submission or capitulation, preferably to the alliance which had subsisted between them and the Romans: postquam deditionis, quam societatis, fides sanctior erat, says Livy.6
§ 205. Treaties dissolved by mutual consent.
Finally, as treaties are made by the mutual agreement of the parties, they may also be dissolved by mutual consent, at the free will of the contracting powers. And, even though a third party should find himself interested in the preservation of the treaty, and should suffer by its dissolution, — yet, if he had no share in making such treaty, and no direct promise had been made to him, those who have reciprocally made promises to each other, which eventually prove advantageous to that third party, may also reciprocally release each other from them, without consulting him, or without his having a right to oppose them. Two monarchs have bound themselves by a mutual promise to unite their forces for the defense of a neighboring city; that city derives advantage from their assistance; but she has no right to it; and, as soon as the two monarchs think proper mutually to dispense with their engagements, she will be deprived of their aid, but can have no reason to complain on the occasion, since no promise had been made to her.
1. See in general, Grotius, b. 3, c. 2; and 1 Chitty’s Com. Law. 38 to 47, 615 to 630, and ii. Index, tit. Treaties.
2. In Sutton v. Sutton, 1 Russ. & Mylne Rep. 663, A.D. 1830, it was held in the Court of Chancery, that, under the treaty of peace, 19 Nov. 1794, between Great Britain and [the United States of] America, the act of 37 Geo. 3, c. 97, passed for the purpose of carrying such treaty into execution, American citizens, who held lands in Great Britain on the 28th Oct. 1795, and their heirs and assigns, are at all times to be considered, so far as regards these lands, not as aliens but as native subjects of Great Britain, and capable of inheriting and holding such lands, notwithstanding a subsequent war between the two countries, and this in respect of the express provision which prevents a subsequent war from wholly determining that part of the treaty. The Master of the Rolls there said, “It is a reasonable construction, that it was the intention of the treaty that the operation of the treaty should be permanent, and not depend upon the continuance of a state of peace.”
3. See Wolfius, Jus Gent. § 432.
4. Grotius, de Jure Belli et Pacis, lib. ii. cap. xv. § 15.
5. The case of Sutton v. Sutton, 1 Russ. &; Mylne, 663, is an express decision upon such a provision even by implication.
6. Lib. vi. cap. x.