able to appreciate more clearly than otherwise in what the validity of Treaties consists by the help of the conception of such a community of States as is postulated by the man who acknowledges International Law as the criterion of national conduct. Such a man conceives of States, as having certain rights, and owing certain duties towards one another according to the law of the community; and of war as the appropriate procedure for enforcing those rights when all other means fail. If entered upon for any cause but to enforce such a right, war is an outrage against the whole community.

Thus, there are certain recognised and valid casus belli, that is to say, circumstances which, according to the conventional code of International Law, entitle a State to proceed to the extremity of war to enforce her pretensions, without thereby offending against all the other States and entitling them to treat her as an outlaw.

In this view, the validity of a Treaty consists in this, that an act which but for the Treaty would give no other Power any right to complain, will if done in breach of a Treaty afford aggrieved Powers a casus belli. Thus the practical value of a Treaty as a restraining force may be measured by the distinction which International Public Opinion draws between a wanton disturbance of the public peace, and a declaration of war upon a legitimate casus belli; and the greater likelihood that the former course will draw down general reprobation, and possible retribution, upon the offender.

Thus, for instance, prior to 1856 it would have been a disturbance of the public peace, calculated to incur the reprobation of the Great Powers, for any State to object to Russia's building warships, and fortifying arsenals on the Black Sea.1

But by the Treaty of Paris (Art. XI.) the position was reversed.

The Black Sea is neutralised; its waters and its ports thrown open to the Mercantile Marine of every Nation are formally and in perpetuity interdicted to the Flag of War, either of the Powers possessing its coasts, or of any other Power, with the exceptions 2 mentioned in Articles 14 and 19 of the present treaty.

The Treaty of Paris was valid to neutralise the Black Sea in the sense that between 1856 and the Treaty of London in 1871, the parties to it would have been within their right according to

1 That is to say short of the point where the right of self-defence against a manifest danger would come in.

2 The exceptions refer to light vessels for coast service, and to be stationed at the mouths of the Danube.

International Law in proceeding to the extremity of war to restrain Russia from having ships of war upon those waters. Nor is this validity reduced to nothing by the events of 1870 and 1871.

It will be remembered that in 1870 Russia suddenly announced that she would no longer be bound by the 11th Article of the Treaty of Paris, and that in January, 1871, a Conference assembled in London by which the neutralisation of the Black Sea was given up, and Russia and Turkey were restored to their natural liberty to display their war flags upon those waters. The English Government, however, had refused to entertain the question, except on the basis which Lord Granville expressed at the first sitting of the Conference-the understanding, namely, that the Conference was accepted for the purpose of examining without any foregone conclusion, and of discussing with perfect freedom the proposal which Russia desired to make. Accordingly, a Protocol headed Inviolability of Treaties" was signed by the Plenipotentiaries assembled in Conference which ran as follows:

[The Plenipotentiaries] recognise it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a treaty nor modify the stipulations thereof unless with the consent of the Contracting Powers by means of an amicable arrangement.1

The various Foreign Offices may have been able to make a shrewd guess at the result in that particular case, but the abrogation of the 11th Article did not follow as a thing of course upon its denunciation by Russia. The English diplomatists were careful to maintain the right of any Power whose interests might demand it, to treat it as a casus belli should Russia persist in her declared intention to disregard the Treaty without the consent of the other signatories.

While the International Jurist would regard the wanton offering of a casus belli to other Powers as an offence against the public peace comparable to a wanton declaration of war,2 he would probably admit that just as a casus belli may arise without any Treaty having been violated, so the existence of a state of things set up by Treaty may in changed circumstances become so intolerable that

1 Dated, London, the 27th, January, 1871.

2 "Wanton" in either case signifying the absence of circumstances sufficient to justify war in the last resort. It seems there may be occasions in the complexity of human affairs, and the absence of an International Tribunal, in which both parties must be regarded as having a legitimate casus belli.

the Power on which it presses may have a legitimate casus belli if other Powers insist on maintaining the Treaty by arms.

In the House of Commons (March 29th, 1878) Mr. Courtney called attention to the Treaty of Paris, and the Protocol of the Treaty of London, and moved :

"That while, according to the Law of Nations, and the right interpretation of the said Protocol, no Power can arbitrarily renounce obligations once accepted by Treaty, it is equally true, according to the Law of Nations and the said Protocol, that no Power can arbitrarily insist upon maintaining obligations once created by Treaty."

He said

His contention was that while no Power could arbitrarily renounce obligations contracted under Treaty, it was equally true that no Power could arbitrarily insist upon keeping up obligations once made. The word "arbitrarily" was the keyword of his proposition. If half a dozen Powers assent together to a Treaty, that Treaty was liable to be affected by circumstances which might exist from time to time. If no change whatever had happened in the circumstances in reference to which the Treaty was contracted, it would be a purely arbitrary act on the part of any Power to declare that its obligations should cease because it wished its position under the Treaty to be altered. Again, circumstances might have altogether changed so that the Treaty would be dissolved as a matter of fact, and five out of the six Powers might agree that the circumstances had changed so that their obligations were dissolved. It then would not be proper for the sixth Power to say, "Your obligations are not dissolved because I refused my assent to a declaration that they are dissolved." That would be as arbitrary as the conduct of the former Power in declaring its obligations had ceased though the circumstances had not altered.

In reference to this speech, the Pall Mall Gazette (April 1, 1878) published an article entitled "Mr. Courtney's Conundrum," and he rejoins,

My position is shortly this:-1. A Treaty is liable to be affected by circumstances, so that through a change of circumstances its obligations are as a matter of fact dissolved. 2. In the absence of such a change, it is arbitrary and indefensible for any Power to renounce the obligations of a Treaty. 3. Such a change having happened, it is arbitrary and indefensible for any Power to insist on the maintenance of obligations. It follows from these premises that whether a Treaty can be maintained as of binding power or must be laid aside as obsolete depends upon the circumstances with which it is or may be related. There is no international tribunal empowered to decide that the necessary

E

change has or has not happened; though, when we look back upon past events, as, for example, the establishment of the Kingdom of Belgium, we may be entitled to say from the concurrence of all men that it had happened in a particular case. It is obvious that I do not rely upon any decision of five to one of signatory Powers; indeed, my object is to reject the notion that these questions can be decided by divisions at a Conference.—P. M. G., April 2, 1878.

He returns to the subject in a letter headed "Why shall we fight?"

Briefly stated the principle for which I am contending is that the obligations of a Treaty may cease to be binding by force of facts that have happened, and this is independent of the circumstance whether all the parties to a Treaty have agreed in recognising the effects of these facts . . . . I know the Protocol of 1871 may be cited against me, but the history of that Protocol shows that it was directed to a condemnation of the doctrine that a Power could arbitrarily repudiate obligations it had once contracted, and if the Protocol were to be otherwise construed, it would be in contradiction to the history and principles of International Law, and a most dangerous snare for our own discomfiture hereafter. -T. May 6, 1878.

Russia in 1876 contended that the position of the inhabitants of the Christian provinces of Turkey was so intolerable as to entitle her to insist on an alteration, even to the extremity of war. When Russia actually made war in the spring of 1877, if the interpretation of those be right who held that the status quo and nonintervention was what the Treaty of Paris contemplated, then that Treaty was valid to entitle the other Powers to treat the action of Russia as a technical casus belli, entitling them to interpose, if their interests required it. Or rather it might have been so, if by the course they took in the Conference at Constantinople the Powers had not already precluded themselves from contending that the status quo could any longer be maintained.

In point of fact no Power chose to interfere for the protection. of Turkey. But though this was the case, a great deal was heard about the validity of the Treaty of Paris, and the invalidity of the Treaty of San Stefano when the latter Treaty was concluded between the belligerents.

It can hardly have been meant that the consent of the other Powers was necessary to restore a state of peace between Russia and Turkey,1 although the language used appeared sometimes to go

1 If the treaty of San Stefano was null and void, Russia and Turkey were still entitled to exercise against neutrals the belligerent rights of blockade and of search.

to that length. But a notion seems to have prevailed that any new arrangements, though to be sure they might exist as a matter of fact, somehow or other could have no proper or legitimate existence until they should have been formally assented to by the other Powers in a particular manner, on the ground that the Treaty of Paris was "valid " to prevent their legally taking effect.

But if the view of the validity of Treaties which has been suggested is the true one, it would seem that the Treaty of Paris could have no such metaphysical action. It might be doubted, indeed, if its validity was not exhausted (so far, of course, as the declared objects of the war were concerned) when the Powers determined to leave Turkey to her fate, or at all events when they received without objection the Russian communication as to the changes Russia would insist on at the close of a successful war. When any new arrangement in contravention of existing Treaty stipulations is in question, the Treaty may entitle those who wish to interfere in order to uphold the old arrangement to do so if they choose; but if they neglect their opportunity the validity of the Treaty is exhausted. To assert the contrary is to set up the distinction between what exists de facto and de jure in international matters, a region where the law, divorced from the fact, becomes shadowy and eludes our grasp. It is an abuse of language to say that a promise which has in fact been disregarded, which there is no means of enforcing, and which no one thinks of trying to enforce, is valid.

The absurdity is even greater if executed territorial arrangements, which are de facto acquiesced in, are stigmatised as "invalid" de jure. They may it is true be invalid in the moment of their inception-but acquiescence cures the defect, and the acquiescence be implied as well as expressed. There is no one form prescribed by International Law as the only one by which the abrogation or modification of existing Treaties may be assented to.1

may

1 The annexation of Savoy to France affords a case in point. By the act of the Congress of Vienna, a part of Savoy, comprising Chablais and other districts, was neutralised, and its neutrality guaranteed. It was recited in the Treaty of Turin (March 24th, 1860), by which Savoy, including the territory so neutralised, was ceded by Sardinia to France, that it appertained to the Emperor of the French to "come to an understanding" with the guaranteeing Powers. Thus it was assumed that their consent must somehow be obtained. Accordingly France proposed that negotiations should take place, either by way of a conference, or by an exchange of notes, or by a direct negotiation between France and Switzerland, the country most directly affected. The English reply [June 25th, 1860, see "Hertslet's Map of Europe by Treaty"] expressed a preference for a conference; but no hint appears that it was only by means of a conference that the necessary consent could be manifested and the guaranteeing Powers absolved from their engagement. In point of fact no conference was held.