CHAPTER VII

EFFECT OF "CHANGED CONDITIONS" ON
THE QUINTUPLE GUARANTEE

The foregoing chapter having discussed the nature of the Quintuple guarantee, the next step will be to examine the question of the duration of its validity.

In due consideration of the fluctuating character of international relations, state treaties which not merely sanction an existing state of affairs but look into the future are in modern times as a rule concluded for specified periods, at the expiration of which they cease to be binding automatically. In earlier days, however, treaties between two or more states were frequently concluded without the stipulation of any time limit, concerning their validity; and an example of this category of international contracts presents itself in the Quintuple Treaty.

The question is: does international law consider such treaties as eternally binding the contractants?—or do the established rules permit the contracting

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parties to expressly or tacitly abrogate those treaties, in the course of time?

The general doctrine, concerning this question, is appropriately expressed in the following words of Wharton, a high American authority on international law:

"In most of the old treaties were inserted the 'clausula rebus sic stantibus,' by which the treaty might be construed as abrogated when material circumstances on which it rested changed. To work this effect it is not necessary that the facts alleged to have changed should be material conditions. It is enough if they were strong inducements to the party asking abrogation.

"The maxim Conventio omnis intellegitur rebus sic stantibus is held to apply to all cases in which the reason for a treaty has failed, or there has been such a change of circumstances as to make its performance impracticable except at an unreasonable sacrifice."¹

The foregoing principle is, evidently, in perfect accord with the views on this subject of Sir Edward Grey who, on August 3, 1914, in the House of Commons, expressed his opinion on the binding force of international guarantees, by quoting the following words of Gladstone:

"I am not able to subscribe to the doctrine of those who have held in this House what plainly amounts to an assertion that the simple fact of the existence of a guarantee is binding on every party to it, irrespective altogether

¹ Quoted in J. B. Moore's Digest of International Law, Vol. V, page 319.

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of the particular position in which it may find itself when the occasion for acting under the guarantee arises. The great authorities upon foreign policy to whom I have been accustomed to listen, such as Lord Aberdeen and Lord Palmerston, never to my knowledge took that rigid and, if I may venture to say so, that impracticable view of the guarantee."¹

Mr. Gladstone's view, with which the present British Foreign Secretary has identified himself, is upheld by a number of the highest authorities on international law, as the following quotations may prove.

Hannis Taylor, a prominent American exponent of international law, says that the conditions of international existence are so unstable, and to enforce a contract between states, after the state of facts upon which it was founded has substantially changed, is so difficult, that all such agreements are necessarily made subject to the general understanding that they shall cease to be obligatory as soon as the conditions under which they were contracted are essentially altered. He cites the case of Russia which, in 1870, determined to repudiate some of the vital provisions of the Treaty of Paris by which she had been fettered at the close of the Crimean War and which her subsequent development had rendered unbearable. Russia, then, rested her case

¹ M. P. Price, Diplomatic History of the War, Appendix, page 93.

EFFECT OF "CHANGED CONDITIONS" 135

upon the ground of "altered conditions," asserting that

"The treaty of 1856 had not escaped the modifications to which most European transactions had been exposed and in the face of which it would be difficult to maintain that the written law . . . retains the moral validity which it may have possessed at other times."¹

J. N. Pomeroy, another high American authority on international law, points out that, since nothing is perpetual in mundane affairs except change, such a thing as a perpetual treaty does not really exist. The dead cannot be allowed indefinitely to control the destinies of the living, nor to fetter the wings of progress or development. He says:

"It should be remembered that the nature of treaties between nations discloses to us features which ought to distinguish these treaties from compacts between individuals. In fact, nations have an indefinite existence. All the generations to come, without having consented in person, find themselves bound by the act of a generation which concluded the convention; the stipulations of the treaty, by the lapse of years or by subsequent changes, may become so opposed to the manners, to the situation of the respective Powers, to the state of their industry, of their commerce, of their forces of every kind, that, justly, these stipulations should not longer be maintained."²

The above quotation from Pomeroy is almost identical with the opinion of the great French law-

¹ A Treatise on International Public Law, Sects. 394 and 395.

² Lectures on International Law, page 352.

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yer Theodore Ortolan on the same subject, expressed in the famous work Regles Internationales et Diplomatie de la Mer.

The same opinion with regard to the influence of "altered conditions" on international treaties is expressed by the great Russian authority on inter-national law, G. F. de Martens, in his "Precis du Droit des Gens Moderne de l'Europe." He quotes the following sentence from the French publicist Sylvestre Pinheiro-Ferreira:

"I speak of those treaties which Governments sometimes make with a clause that they shall remain binding forever, or, at least, until both the contracting parties agree to rescind or to modify them. Such conventions never have been, nor should they be, taken literally, for it would be absurd to suppose that the present generation could have the right to bind future generations by conventions good or bad at the time of their inception, that the posterity of one contracting party ought to be sacrificed to the posterity of the other. Treaties bind nations only so long as the principle upon which their validity rests continues to exist."

The doctrine that, owing to essential changes of the circumstances under which they were concluded, international treaties sink into oblivion, and are no longer binding, not only is a part of international law, but also the most prominent philosophers and statesmen fully recognize and defend this principle as a matter of absolute ethical justice.

There is no authority more respected than John

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Stuart Mill, who expresses his opinion on this subject in an essay on "Treaty Obligations,"¹ in the following manner:

"In 1814 and 1815, a set of treaties were made by a general congress of the states of Europe, which affected to regulate the external, and some of the internal, concerns of the European nations, for a time altogether unlimited. These treaties, having been concluded at the termination of a long war, which had ended in the signal discomfiture of one side, were imposed by some of the contracting parties, and reluctantly submitted to by others. Their terms were regulated by the interests and relative strength at the time of the victors and vanquished, and were observed as long as those interests and that relative strength remained the same. But as fast as any alteration took place in these elements, the powers, one after another, without asking leave, threw off, and were allowed with impunity to throw off, such of the obligations of the treaties as were distasteful to them, and not sufficiently important to the others to be worth a fight. The general opinion sustained some of those violations as being perfectly right; and even those which were disapproved were not regarded as justifying a resort to war. Europe did not interpose when Russia annihilated Poland; when Prussia, Austria and Russia extinguished the Republic of Cracow; or when a second Bonaparte mounted the throne of France. . . .

"Did any impartial person blame Prussia or Austria because, in 1813, they violated the treaties which bound them to the first Napoleon, and not only did not fight in his ranks, as their engagements required, but brought their whole military force into the field against him, and pursued him to his destruction? Ought they, instead of cancelling

¹ In Fortnightly Review, N. S. (1870), page 715.

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the treaties, to have opened a negotiation with Napoleon, and entreated him to grant them a voluntary release from their obligations, and if he did not comply with their request to be allowed to desert him, ought they to have faith-fully fought in his defense? Yet it was as true of those treaties as it is of the treaty of 1856, that, disadvantageous and dishonorable as they might be, they had been submitted to as the purchase-money of peace, when the prolongation of war would have been most disastrous; for, had the terms been refused, Napoleon could with ease have conquered the whole of Prussia, and, at least, the German dominions of Austria, which is considerably more, I presume, than England and France could have done to Russia, after the fall of Sebastopol. . . .

"What means, then, are there of reconciling, in the greatest practicable degree, the inviolability of treaties and the sanctity of national faith, with the undoubted fact that treaties are not always fit to be kept, while yet those who have imposed them upon others weaker than themselves are not likely, if they retain confidence in their own strength, to grant a release from them? To effect this reconcilement, so far as is capable of being effected, nations should be willing to abide by two rules. They should abstain from imposing conditions which, on any just and reasonable view of human affairs, can not be expected to be kept. And they should conclude their treaties as commercial treaties are usually concluded, only for a term of years.

"If these principles are sound it remains to be considered how they are to be applied to past treaties, which, though containing stipulations which, to be legitimate, must be temporary, have been concluded without such limitation, and are afterwards violated, or as by Russia at present, repudiated, on the assumption of a right superior to the faith of engagements.

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"It is the misfortune of such stipulations, even if as temporary arrangements they might have been justifiable, that if concluded for permanency they are seldom to be got rid of without some lawless act on the part of the nation bound by them. If a lawless act, then, has been committed in the present instance, it does not entitle those who imposed the conditions to consider the lawlessness only, and to dismiss the more important consideration whether, even if it was wrong to throw off the obligation, it would not be still more wrong to persist in enforcing it. If, though not fit to be perpetual, it has never been imposed in perpetuity, the question when it becomes right to throw it off is but a question of time. No time having been fixed, Russia fixed her own time, and naturally chose the most convenient. She had no reason to believe that the release she sought would be voluntarily granted on any conditions which she would accept; and she chose an opportunity which, if not seized, might have been long before it occurred again, when the other contracting parties were in a more than usually advantageous position for going to war."

Prince Bismarck, one of the greatest statesmen of all times, expresses his views on the influence of "changed conditions" on existing treaties in the following words:¹

"Such a guarantee [as an organic connection between the German Empire and Austria-Hungary, which should not be published like ordinary treaties, but should be incorporated in the legislation of both empires and require

¹ Bismarck, His Reflections and Reminiscences, London (1898), Vol. II, page 270.

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for its dissolution a new legislative act on the part of one of them] has a tranquilizing effect on the mind; but whether it would stand the actual strain of events may reasonably be doubted when it is remembered that the Constitution of the Holy Roman Empire, which in theory had much more effective sanctions, yet failed to assure the cohesion of the German nation, and that we should never be able to embody our relation with Austria in any more binding treaty-form than the earlier confederation treaties, which in theory excluded the possibility of the battle of Koniggratz. All contracts between great states cease to be unconditionally binding as soon as they are tested by 'the struggle for existence.' No great nation will ever be induced to sacrifice its existence on the altar of fidelity to contract when it is compelled to choose between the two. The maxim 'ultra posse nemo obligator' holds good in spite of all treaty formulas whatsoever, nor can any treaty guarantee the degree of zeal and the amount of force that will be devoted to the discharge of obligations when the private interest of those who lie under them no longer reinforces the text and its earliest interpretation. If, then, changes were to occur in the political situation of Europe of such a kind as to make an anti-German policy appear salus publica for Austria-Hungary, public faith could no more be expected to induce her to make an act of self-sacrifice than we saw gratitude do during the Crimean war, though the obligation was perhaps stronger than any (that) can be established by the wax and parchment of a treaty."

The foregoing passages from Mill and Bismarck are cited in full in J. B. Moore's Digest of International Law (vol. V, page 338 and f.) as authorities governing the case. Another passage in Bis-

EFFECT OF "CHANGED CONDITIONS"   141

marck's "Reflections and Reminiscences" on the same subject puts the matter into a nutshell:

"International policy is a fluid element which under certain conditions will solidify, but, on a change of atmosphere, reverts to its original diffuse conditions. The clause 'rebus sic stantibus' is tacitly understood in all treaties that involve performance."¹

So far the opinions of lawyers and statesmen regarding the influence of "changed conditions" on the validity of existing treaties—opinions which, often enough, have found concrete expression in practical politics, especially in England, the British Government having repeatedly declared that it considered old treaties "dead letters."²

To what extent, in the case of Belgium, conditions have actually changed, since the days of the London Conference and the conclusion of the treaties of 1839, needs hardly any detailed exposition.

^l Edition Tauchnitz, Vol. III, page 203.

² To cite here only one example: When, in 1870, there was raised in the House of Commons the question concerning the validity of the Treaty of Paris of 1814, by which the House of Bonaparte had been perpetually excluded from the French throne, the British Under-Secretary for Foreign Affairs replied that that treaty had to be considered "a dead letter" (see Hansard, 3d ser., 203, p. 152). Though that treaty had not been formally abrogated, neither England nor any other signatory Power considered it binding and enforceable when Napoleon III made himself Emperor of the French, because those conditions which prevailed when the Treaty of Paris was concluded had changed.

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At the London Conference, the neutralization of Belgium was decided upon as a political measure, principally British, to safeguard the newly created, weak little kingdom against the danger of French encroachments.¹ Ernest Nys, one of Belgium's authorities on International Law, says in this respect: "The idea which inspired the declaration of the permanent neutrality of Belgium was an idea of hostility against France";² and the Belgian historian F. de Lannoy says, even more explicitly: "The neutrality of Belgium was, thus, a measure of guarantee against France, and had no other significance."³

However, on the one hand, the days of danger of French encroachments against Belgium have long since gone by. On the other hand, the rebellious Belgian Provinces of 1830 and the insignificant kingdom of 1839 have grown, in the course of seventy-five years, into a most prominent State, which, after the Great Powers, holds the first place in Europe!

With a population of close to eight millions, Belgium surpassed in 1914 not only her neighbor Holland by at least one million and a half, but also every

¹ See page 39.

² Etudes de droit international et de droit politique, 2e serie, page 133.

³ F. de Lannoy, Les origines diplomatiques de l'Independance belge.—Louvain, 1903.

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one of the Scandinavian and the Balkan States. With an estimated wealth of nine thousand millions of dollars, she holds the eighth place among the nations of the world.¹ In 1913, her state revenue amounted to 146 million dollars, against the 84 millions of Holland's. Belgium's total foreign trade (imports, exports and transits taken together) showed, in 1912, a value of 11,346 million francs (2,155 million dollars) and compared favorably with that of the greatest commercial nation (according to value of commerce per capita of population), i.e., Holland, whose foreign trade amounted to 6,662 florins (2,665 million dollars). The foreign trade of Antwerp alone was, in 1911, worth 1,120 million dollars, this city thus holding the fifth place among the ports of the world.

But, above all, Belgium has, in the meantime, by the annexation of the Congo Free State, become one of the foremost colonial empires. To the "Belgium within the limits specified in Articles I, II and IV^" of the treaties of 1831 and 1839—measuring 11,373 square miles—an enormous area of 802,000 square miles has been added, with a population of nearly fifteen millions.

It is plainly evident that this Belgium, with such vast resources, which, since her recent military re-

¹ Statistics are taken from the World Almanac for 1914, and Whitacker's Almanack for 1915.

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organization, can put an army of about half a million soldiers into the field, is an absolutely different country from that the affairs of which were under consideration at the London Conference.

As for the conditions in the political aspect of Europe space fails me to give even a brief outline of the changes which have come over them.

In 1831, Europe was dominated by the five Great Powers, Austria, France, Great Britain, Prussia and Russia, among whom England and France were very pronounced rivals. Austria and Prussia belonged to a union of altogether thirty-nine German sovereigns and Free Cities, the Germanic Confederation, of which also the King of England in his capacity as King of Hanover, the King of the Netherlands as Grand-Duke of Luxembourg, and the King of Denmark as Duke of Holstein and Lauenburg, were participants. Even the most primitive abstract of history will show what fundamental changes have been wrought in those conditions, during the last eighty years! France has changed into a republic, then into an empire, and, subsequently, into a republic again. Hanover has become part of Prussia. The Germanic Confederation went to pieces. An entirely new union of exclusively North German States came into existence in 1867, which, subsequently, by a close alliance with the South-German States, was enlarged and con-

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solidated into the German Empire. Italy and Spain were received as Great Powers into the European Concert.

But, above all, the relations between the Powers whose representatives deliberated over the affairs of Belgium at the London Conference have undergone the most drastic changes. In the Crimean War, France and England fought Russia. In 1859, France and Savoy made war against Austria. In 1866, Prussia fought against Austria and the Germanic Confederation. In 1870, the North German Confederation went to war with France.

All those events, however, had so thoroughly changed the conditions under which the Quintuple Treaty was concluded that, notwithstanding its continuing effect as the basic statute for the separation of Belgium from Holland, the guarantee assumed under it by the then Great Powers could not possibly be considered, in 1870, as binding any of the original guarantors, and was, obviously, not considered so by Mr. Gladstone's Government.

In an infinitely lesser degree, taking into consideration the fundamental political changes wrought by the events since 1870, could it be held to be valid at the outbreak of the present war.

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