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The Termination of the Treaties of a State in Consequence of its Absorption by another—the position of The United States

Published online by Cambridge University Press:  12 April 2017

Charles Cheney Hyde
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Type
Editorial Comment
Information
American Journal of International Law , Volume 26 , Issue 1 , January 1932 , pp. 133 - 136
Copyright
Copyright © American Society of International Law 1932

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References

1 Mr. Fish, Secy, of State, to Aristarchi Bey, Turkish Minister, Sept. 18, 1876, MS. Notes to Turkey, I, 170, Moore, Dig., V., 345.

2 Treaty Vol. (1776-1887), Davis’ Notes, 1236–1337.

3 Declared Mr. Fish, Secy, of State, to Aristarchi Bey, Turkish Minister, Sept. 18, 1876: “While it may be true that, as a general rule, when one country is absorbed by another the treaties of perhaps the more inconsiderable of the two are often regarded as annulled, it is believed that the absorption of a State is not always attended by an admitted annulment of its treaties. The union between the United States and Texas was effected by the legislation of the parties. It necessarily canceled the treaties between Texas and foreign powers, so far at least as those treaties were inconsistent with the Constitution of the United States, which requires customs duties to be uniform throughout the Union. The treaties of Algiers with other governments were also annulled by the conquest of that country by France. This conquest was made pursuant to a regular war of such notoriety that its origin, progress, and result could not fail to come to the knowledge of all the parties having treaties with Algiers and to be regularly recorded as an historical fact. Such was not the character of the contest by which the Porte acquired the ascendancy which it afterwards claimed in Tripoli. That contest was of a comparatively obscure character, and, as was believed, had been but faintly and imperfectly recorded in the published annals of the time. The Two Sicilies and certain of the States of the Church were conquered by the arms of Sardinia. The United States at the time of that conquest had a treaty of commerce with the Two Sicilies, which it did not regard as canceled, thereby; nor did it regard the treaty of commerce which it had with Sardinia itself as applicable either to the Two Sicilies or to the States of the Church.” (MS. Notes to Turkey, I, 170, Moore, Dig., V, 345.)

4 In an instruction to the American Minister at Constantinople, of Sept. 3, 1908, it was declared:

“1 . That the treaty of 1805 was made with all necessary formalities.

“2. That prior to 1835, as well as after that date, the real sovereignty over Tripoli rested in the Ottoman Porte.

“3. That inasmuch as prior to 1835 the Ottoman Porte permitted Tripoli to make war and peace and negotiate treaties, the treaties so negotiated must be considered as binding upon Turkey as well as upon Tripoli.

“4. That the affair of 1835 was not in any proper sense a conquest by Turkey of Tripoli, but was merely the assumption by Turkey of a more complete governmental control over Tripoli.

“5. That this being the true nature of the affair of 1835, Turkey cannot treat the earlier Tripolitan treaties as abrogated by conquest.

“6. That Turkey herself, from 1835 until 1873, appears to have considered all treaties made with Tripoli prior to 1835 as binding upon her, Turkey.

“7. That by making with Great Britain, France and Italy, treaties in effect abrogating the earlier Tripolitan treaties with these governments and extending over Tripoli the general treaties of the Ottoman Empire, Turkey recognized that until Tripolitan treaties were so terminated or abrogated, they were of full force and vigor.

“8. As a resultant of the foregoing, it follows that the American treaty of 1805 must be considered as of full force and vigor until it shall be abrogated by a new treaty with the Ottoman Porte.

“In view of these findings, you are now instructed to present Mr. Coffin’s commission to the Ottoman Government to whom it is addressed, with a request that that Government be pleased to issue to Mr. Coffin an exequatur.” (State Department, Numerical File No. 901.)

5 MS. Notes to Jap. Leg. I, 521, citing Halleck’s Int. L., Ch. 18, sec. 35, and Dana’s Wheaton, sec. 275, Moore, Dig., V, 349.

It may be observed that in the Joint Resolution of July 7,1898, providing for the annexation of Hawaii, the Congress provided that the existing treaties of Hawaii with foreign states should be replaced by the treaties between the United States and such foreign states.

Concerning the treaty between the United States and the Netherlands of Oct. 8, 1782, see Davis’ Notes, U. S. Treaty Vol. (1776–1887), 1235, Moore, Dig., V, 344; concerning the treaty between the United States and Hanover and Nassau, see Davis’ Notes, 1234.

Concerning the effect of the cession by Spain to the United States of the Zulu Archipelago on certain protocols of Spain with Germany and Great Britain, conceding exceptional trade privileges to vessels of those states, see Magoon, Law Officer, Division of Insular Affairs, War Department, Oct. 8, 1900, Magoon’s Eeports, 316, Moore, Dig., V, 351, 352.

See case of absorption of Loochoo by Japan and its effect on the treaties between the United States and Loochoo of July 11, 1854, Moore, Dig., V, 346.

6 Malloy’s Treaties, II, 1788.

7 See For. Bel. 1912, 632–633. According to the Italian note of October 30, 1912, it was “in consequence of the recognition by the foreign powers” of Italian sovereignty over the regions mentioned that the special regime referred to had ended, “in conformity with universally accepted principles of international law.”

8 For. Bel. 1913, 608-611; U. S. Treaty Vol. III, 2698–2699; also Mr. Knox, Secy, of State, to the American Ambassador at Borne, Dec. 5, 1912, For. Bel. 1912, 633.

9 See Articles XVIII and XIX, Malloy’s Treaties, II, 1792.

10 See Mr. Fish, Secy, of State, to Mr. Maynard, Nov. 9, 1875, For. Bel. 1875, 1316, Moore, Dig. V, 345–346.

11 This conclusion is believed to be justified despite the fact that Secretary Knox in his note of February 28,1913, to the Italian Chargi d’ Affaires, hereinafter referred to, failed to advert to the inadvertent error of the latter which attributed to the Capitulations of the Ottoman Empire rather than to the treaty between the United States and Tripoli of June 4, 1805, the basis of the special régime enjoyed by American citizens in the territories over which Italy had acquired the sovereignty, and of which the cessation was announced.

12 The memorandum under date of April 7, 1925, was delivered by the Italian Chargé d’Affaires to an officer of the Department of State on April 8, 1925.