7. In case of a doubt as to the general or special meaning of a stipulation and a different reading shown from the intentions of all the parties unanimously declared during the negotiations preceding the signing of the treaty, the meaning corresponding to the real and declared intentions of the signatory parties must prevail over the other meaning given to the text.

If, therefore as in the case of the London naval conference of 1908-9-the letter of the draughting committee contains certain commentaries and interpretations which were unanimously agreed to by all of the negotiators previous to the signing of the declaration, these interpretations should prevail.

8. If two meanings of a stipulation are possible according to the text of a treaty, the meaning to prevail is the one which the party proposing the stipulation knew at the time was the meaning desired by the party accepting it.

9. If it should be a matter of common knowledge that a state insists upon a meaning of a phrase which is different from the usually accepted meaning of the term and a second state enters into a treaty where such phrase or term is used, the meaning upheld by the first state prevails.

10. If a meaning of a stipulation to a treaty is ambiguous and one of the parties to the treaty makes known its interpretation before confirmation, or as a reservation or condition to confirmation, or before a case under this stipulation occurs, then the other parties cannot insist upon a different meaning. This was the case with Article 23 of the first Hague convention in regard to the laws and usages of war on land, and also as to the expression ennemi and commerçant in the declaration of London understood by England and others and made known by Italy in the Italo-Turkish War.

11. An interpretation that would make a stipulation of a treaty meaningless is not admissible.

12. All treaties should be interpreted so as to exclude fraud and to make their rules consistent with good faith.

13. The rules commonly applied by national courts are in

so far only applicable to the interpretation and construction of treaties and especially law making treaties as they agree with general rules of jurisprudence.

14. A prohibition which is more or less specific takes precedence and modifies a general permission.

15. If a penalty for non-observance is attached to one or two prohibitory stipulations, preference is given to that which is better guarded.

16. The later date of two or more conflicting treaties governs, even if made by different parties.

Article 38 of The Hague convention of 1907 for the pacific settlement of international disputes, of which the United States is a party, says: "In questions of a legal nature, and especially in the interpretation or application of international conventions, arbitration is recognized by the contracting powers as the most effective and, at the same time, the most equitable means of settling disputes which diplomacy has failed to settle. Consequently, it would be desirable that, in disputes regarding the above-mentioned questions, the contracting powers should, if the case arise, have recourse to arbitration, in so far as circumstances permit." 1

121. The Most-Favored-Nation Clause.-Westlake in discussing the question of the interpretation of treaties brings in the question of what is known as the most-favored-nation clause, one in which the United States has taken a stand different from many other countries. "It seems best in the interest of peace that when an agreement," he says, "on broad lines has been reached, that it should be expressed in language not striving to hide a felt doubt but, on the other hand, not maliciously seeking occasions for doubt; and to such a style of draughting, which we believe to be most common in treaties, a large and liberal spirit of interpretation will reasonably correspond. Perhaps no better instance can be given of the difference between the two modes of interpretation which we

'Higgins, "The Hague Peace Conferences," p. 123.

have in mind than this. State A has concluded with State B a treaty on tariffs containing what is known as the mostfavored-nation clause promising to B the benefit of lower duties than conceded to any other state. A then concludes with State C a treaty which, for some valuable consideration, concedes to it lower duties on certain articles than are provided in the treaty with B. Can B demand the admission of its goods at the same rates of duty as those of C? On a literal system of interpretation it can, but on a broader system it cannot, unless the case admits of its giving to A the same consideration that is given by C and it is willing to do so. The latter answer has been made by the Supreme Court of the United States and in our opinion justly." The case referred to is that of Whitney v. Robertson. This was a suit to allow San Domingo sugar to come in under the same conditions as Hawaiian sugar, which was then admitted free of duty in accordance with a reciprocity treaty drawn up between the United States and the Kingdom of Hawaii, the treaty being made effective by congressional act.

The 9th Article of the treaty between the Dominican Republic and the United States reads that "no higher or other duty shall be imposed on an importation into the United States of any article the growth, produce, or manufacture of the Dominican Republic or of her fisheries; and no higher or other duty shall be imposed on the importation into the Dominican Republic of any article of growth, produce or manufacture of the United States or its fisheries than are or shall be payable on the like articles the growth, produce, or manufacture of any other foreign country or its fisheries."

Justice Field, who delivered the opinion, said, with respect to this clause, "that it is a pledge of the contracting parties that there shall be no discriminating legislation against the importation of articles that are the growth, product, or manufacture of their respective countries in favor of articles of like character

1 Westlake, "Int. Law," 2d ed., vol. I, pp. 293-4.

imported from any other country. It has no great extent. It was never designed to prevent special concessions, upon sufficient consideration, touching the importations of certain articles into the country of the other. It would require the clearest language to justify a conclusion that our government intended to preclude itself from such engagements with other countries which might in the future be of the highest importance to its interests."1 Our interpretation of the most-favored-nation clause, especially as it is applied to Canadian reciprocity, Hawaiian reciprocity, and the sugar-bounty-paying countries of Europe, has led to much discussion especially with Germany, Great Britain, and Russia.

With Germany the question arose also as to salt, which was admitted free to nations who admitted our salt free-Germany placed a duty on our salt but claimed under the favored-nation clause that her salt should be admitted free to our country. Attorney-General Olney said of this that, "the form which the provisions of our recent tariff act relating to salt may have assumed is quite immaterial. It enacts, in substance and effect, that any country admitting American salt free shall have its own salt admitted here free, while any country putting a duty upon American salt shall have its salt dutiable here under the pre-existing statute. In other words, the United States concedes 'free salt' to any nation that concedes 'free salt' to the United States. Germany, of course, is entitled to that concession upon returning the same equivalent. But otherwise she is not so entitled, and there is nothing in the most-favored-nation clause which compels the United States to discriminate against other nations and in favor of Germany by granting gratuitously to the latter privileges which it grants to the former only upon the payment of a stipulated price."2

Of course, in tariff matters this bears against governments which have light tariffs or free trade, but the principle with us extends to other concessions besides those of tariffs and duties 1 Scott's "Cases," p. 42. 2 Wharton's "Int. Law," vol. II, p. 58.

and dates back to the early days of the republic with respect to tonnage and harbor duties.

122.

Termination of Treaties.-A treaty may be modified

or terminated by the following conditions:

1. When the parties mutually consent.

2. When continuance is conditioned upon terms which no longer exist.

3. When either party refuses to perform a material stipulation.

4. When all the material stipulations have been performed. 5. When a party having the option elects to withdraw. 6. When performance becomes physically or morally impossible.

7. When a state of things which was the basis of the treaty and one of its vital conditions no longer exists.

In addition there are other causes for the abrogation or termination of a treaty which will be given specifically. "When, for instance, a state loses entirely its identity by incorporation into another its obligation to execute pre-existing treaties ceases. This results from the impossibility of performance. The annexation of the Hawaiian Islands by the United States is a case in point. . . .1 When one state unites or confederates with another but still retains to a limited degree its separate character, the continued validity of treaties is less easily determined. If the confederated state retains liberty of action with respect to the matter touched upon by the treaty its obligation will still exist." The treaties made with Prussia, before the formation of the German Empire, by the United States are held to be still effective, as the King of Prussia is considered to still retain as Emperor the power to carry into effect international obligations in this respect.

"A state formed by separation from another, whether the identity of the original state still exists or is completely lost by

1 Crandall, "Treaties," etc., pp. 233-4.

2 Crandall, “Treaties," etc., p. 236.