CHAPTER XV.

THE DECLARATION OF PARIS NOT IRREVOCABLE.

It is held by some that, whatever may be the vices of the Declaration of Paris, it is immutable and irrevocable under any circumstances; and by others, that it is not revocable unless with the consent of all the signatory Powers.

This is to make a claim for a Declaration having none of the solemn marks of authority that distinguish treaties, wider than is made even for Treaties. themselves. There is not an important Treaty of modern Europe, from that of Utrecht of 1713 downward, but has been partially denounced, revoked and altered. The Treaties of Vienna of 1814, the Treaties of Paris of 1856, the Treaty of Prague of 1866, the Treaty of Berlin of 1878, have all been in part or in whole denounced; and acts have been done or forborne by parties to them-even though such acts were at first denounced and opposed by other parties to them-in flagrant derogation of their provisions. It is only necessary to instance in illustration the Black Sea Clauses of the Treaty of Paris and the Batoum Clause of the Treaty of Berlin, both which were openly and frankly denounced and repudiated by Russia, in her own sole interest, with the result that the denunciation and repudiation were accepted by all Europe. That so much less solemn a document as the Declaration might be, with due

warning and in time of peace, repudiated, seems to admit of no question. It has never been, and is not now a uniform doctrine, it has never been universally accepted, and it is therefore to this day no part of the Law of Nations, but only a new and exclusively conventional view of a portion of that law as "declared " by certain States. Thus Hall says, "the provisions of "the Declaration of Paris cannot in strictness be said "to be at present part of international law, because "they have not received the adherence of the United "States." And again he says, "the terms of the

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Declaration are not authoritative law," and yet again: "the freedom of enemy's goods in neutral vessels is "not yet secured by an unanimous act, or by a usage "which is in strictness binding on all nations."

We have seen Russia tear up, in 1870, the Black Sea clause of that very Treaty of Paris, the Conference on which led to this very Declaration; and had the Declaration formed part of the Treaty it must have disappeared with the infraction of that part of it. For assuredly if the principal clause of a solemn Treaty, made with full powers and duly ratified, may be repudiated, much more may a Declaration thereto appended, made without powers and never ratified. We have seen that same Russia, which was a party to the Treaty of Berlin in 1878, repudiate in 1886 Article LIX. of that Treaty, which stipulated that Batoum should be a "free port essentially com"mercial," and repudiate it with a cynicism and under circumstances which caused Lord Rosebery to stigmatize the repudiation as "an infraction of the Treaty of Berlin of which indeed it obliterates a "distinct stipulation," and to protest against it in Rights and Duties of Neutrals, by W. E. Hall, M.A. London, 1874, pp. 13, 135, 143.

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these words: "H.M. Government cannot consent to recognize or associate themselves in any shape or "form with this proceeding of the Russian Govern"ment. They are compelled to place on record their "view that it constitutes a violation of the Treaty of "Berlin unsanctioned by the Signatory Powers, that "it tends to make future conventions of the kind "difficult, if not impossible, and to cast doubt at "least on those already concluded."1

There is indeed not one of the great modern treaties of Europe but has been openly repudiated in some essential parts by some interested Power. They have all suffered violation in some of their essential features. And if treaties may be and have been thus repudiated, much more may a Declaration be repudiated which is no Treaty at all, nor part of a treaty, which is self-contradictory on the face of it, and of which the proposed partial repudiation has already been repeatedly announced by other Powers than Great Britain who were parties to it.

Moreover this was not the only Declaration made at Paris in 1856. There was another, to the full as important and to the full as binding, which has been persistently despised and violated ever since it was made. At the sitting of the Conference of 14th April, 1856, the Plenipotentiaries "do not hesitate "to express in the name of their Governments, the "desire that States between which serious discus"sions may have arisen, shall, before appealing to arms, have recourse, so far as the circumstances "admit, to the good offices of a friendly Power." This declaration, which was adopted immediately before the Declaration of Paris usually so called, has

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1 Parliamentary Papers. Russia I., 1886.

never since had the least attention paid to it, or ever been of the slightest effect, although invoked and appealed to by England on the outbreak of each of the great wars of 1859 and 1870 that broke out after it was promulgated.

The moralists and the publicists, who disagree on many things, are agreed at least as to this; that even solemn treaties made with full powers and bearing all the marks of authority, may under certain circumstances be set aside. "When adherence to a "Public Treaty" (says Paley in his Moral Philosophy) "would enslave a people, or deprive it of those com"mercial advantages to which its situation and other "circumstances entitle it, the magnitude of the par"ticular evil induces us to call in question the obliga"tion of the general rule." So, too, says Hume, and so also, but more strongly, De Martens, Mommsen, Ferreirà, and Spinoza. So also Vattel (Book II. cap. 12), "Since, in the formation of every treaty, the "contracting parties must be vested with sufficient

powers for the purpose, a treaty pernicious to the "State is null, and not at all obligatory, as no con"ductor of a nation has the power to enter into engagements to do such things as are capable of "destroying the State, for whose safety the govern"ment is intrusted to him."

Since then no treaties are absolutely irrevocable, and since every modern Treaty has been treated as revocable on due occasion, and has actually in part or in whole been repudiated or revoked, there can be no character of absolute irrevocability attaching to a document so much inferior to a Treaty as the Declaration of Paris.

Nevertheless, though revocable, the Declaration of Paris should not be held to be more lightly revocable

or upon less grave grounds, than a convention of a more formal and complete character. For if, on the one hand, it lacks the sanction and solemnity of a formal treaty; if there was admittedly no adequate authority on the part of the British Plenipotentiaries to sign it; if, in addition it has never been, nor after four and forty years is any nearer to becoming a uniform doctrine; and if it has never been ratified by the sovereign-yet there is the fact that it has been tacitly accepted by Great Britain ever since 1856, that Parliament, though it has never expressly approved it, has more than once refused to condemn it, and that in the eyes of all nations it is of lasting obligation on Great Britain, whatever it may be as regards themselves. In these circumstances it would ill become Great Britain to repudiate the obligation on the ground alone of its lack of authority or formality. Upon other grounds than these must the repudiation be made if at all. But if it be that the effect of the declaration is such as, in time of war, practically to deprive Great Britain of her power of offence at sea, seriously to impair her power of defence, and to inflict a disastrous injury upon her carrying trade, then the ground exists. It would be on the ground of the necessity for using her power of self-protection, for resisting her own destruction, for guarding her own very existence that the repudiation would be made-a ground which, if it be established, would suffice for the repudiation of the most sacred and solemn of all treaties, and much more for the repudiation of this casual unauthorized self-contradictory Declaration.