International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 98. The outbreak of war causes at once the rupture of diplomatic
intercourse between the belligerents, if such rupture has not already
taken place. The respective diplomatic envoys are recalled and ask for
their passports, or receive them without any previous request, but they
enjoy their privileges of inviolability and exterritoriality for the
period of time requisite for leaving the country. Consular activity
likewise comes to an end through the outbreak of war.[180]
[Footnote 180: See above, vol. I. §§ 413 and 436.]
[Sidenote: Cancellation of Treaties.]
§ 99. The doctrine was formerly held, and a few writers[181] maintain it
even now, that the outbreak of war _ipso facto_ cancels all treaties
previously concluded between the belligerents, such treaties only
excepted as have been concluded especially for the case of war. The vast
majority of modern writers on International Law have abandoned this
standpoint,[182] and the opinion is pretty general that war by no means
annuls every treaty. But unanimity as to what treaties are or are not
cancelled by war does not exist. Neither does a uniform practice of the
States exist, cases having occurred in which States have expressly
declared[183] that they considered all treaties annulled through war.
Thus the whole question remains as yet unsettled. Nevertheless a
majority of writers agree on the following points:--
(1) The outbreak of war cancels all political treaties between the
belligerents which have not been concluded for the purpose of setting up
a permanent condition of things, for instance, treaties of alliance.
(2) On the other hand, it is obvious that such treaties as have been
especially concluded for the case of war are not annulled, such as
treaties in regard to the neutralisation of certain parts of the
territories of the belligerents.
(3) Such political and other treaties as have been concluded for the
purpose of setting up a permanent[184] condition of things are not _ipso
facto_ annulled by the outbreak of war, but nothing prevents the
victorious party from imposing upon the other party in the treaty of
peace any alterations in, or even the dissolution of, such treaties.
(4) Such non-political treaties as do not intend to set up a permanent
condition of things, as treaties of commerce for example, are not _ipso
facto_ annulled, but the parties may annul them or suspend them
according to discretion.
(5) So-called law-making[185] treaties, as the Declaration of Paris for
example, are not cancelled by the outbreak of war. The same is valid in
regard to all treaties to which a multitude of States are parties, as
the International Postal Union for example, but the belligerents may
suspend them, as far as they themselves are concerned, in case the
necessities of war compel them to do so.[186]
[Footnote 181: See, for instance, Phillimore, III. § 530, and Twiss, I.
§ 252, in contradistinction to Hall, § 125.]
[Footnote 182: See Jaconnet, _op. cit._ pp. 113-128.]
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