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8-34. War Between Contracting Parties. a. No interna- approaching generality, courts must proceed with a good deal of caution.
tional tribunal has had occasion to decide a case involving But there seems to be fairly common agreement that, at least, the
the question of the effect of war upon treaties, and na- following treaty obligations remain in force; stipulations in respect of
what shall be done in a state of war; treaties of cession, boundary, and
tional court decisions relating to the problem are con-
the like; provisions giving the right to citizens or subjects of one of the
cerned only with the effect of treaties as domestic law. It is high contracting powers to continue to hold and transmit land in the ter-
thus dficult to draw any conclusions as to the present ritory of the other; and, generally, provisions which represent com-
state of customary international law with respect to the pleted acts. On the other hand, treaties of amity, of alliance, and the
problem under consideration. 139 An excerpt from Kar- like, having a politic. character, the object of which "is to promote rela-
tions of harmony between nation and nation," are generally regarded as
nuth v. United States, 140 a leading case dealing with this
belonging to the class of treaty stipulations that are absolutely annulled
subject, follows. by war. Id., p. 383, quoting Calvo, Droit Int. (4th Ed.), IV.65 5 1931.
The effect of war upon treaties is a subject in respect of which there 6. Some multilateral conventions provide for their
are widely divergent opinions. The doctrine sometimes asserted,
especially by the older writers, that war ips0 facto annuls treaties of ev- effect in time of war. For example, Article 89 of the Con-
ery kind between the warring nations, is repudiated by the great weight vention on International Civil Aviation 141 specifies that:
of modem authority; and the view now commonly accepted is that "In case of war, the provisions of this Convention shall
"whether the stipulations of a treaty are annulled by war depends upon not affect the freedom of action of any of the contracting
their intrinsic character." 5 Moore's Digest of International Law, 5 779, States affected, whether as belligerents or neutrals. .. ."
p. 383. But as to precisely what treaties fall and what survive, under this
designation, there is lack of accord. The authorities, as well as the prac- Moreover, it is important to note that treaties which regu-
tice of nations, present a great contrariety of views. The law of the sub- late the conduct of hostilities are not affected by the out-
ject is still in the making, and, in attempting to formulate principles at all break of war.
Section VI. STAl'ESUCCESSION

8-35. General Principles. a. The transfer of territory of annexation by another state.
from one state to another creates numerous legal prob- b. Whatever form the change of sovereignty or legal
lems. These transfers, which may be thought of as a control takes, it represents a disruption of continuity, and
change in sovereignty or in international status, have oc- a body of law, known as the "law of state succession," has
curred frequently in history, and their extent and conse- developed to determine the extent and consequences of
quences have often been drastic. Transfers of territory or this discontinuity. The use of the imprecise term "state
change of sovereignty over territory, or change in interna- succession" may appear to beg the question, that is, to
tional status, may come about in several ways, which fall what extent the state which acquires sovereignty or con-
into three main categories: (1) the attainment of independ- trol over a smc territory becomes "heir':ito the juridi-
ence by a territory or entity which was previously under cal consequences of the acts of its predecessor. The terms
the sovereignty, suzerainty, protectorate, mandate, "successor" and "succession" designate the new-
trusteeship, or other form of legal control exercised by sovereign and the process of acquiring sovereignty or legal
another state or states, or which was in a federal or other control, and do not necessarily imply a juridical substitu- '
"real" union with other international entities; (2) the loss tion of the "successor" state in all the rights and duties
of statehood or independence through annexation by possessed by its predecessor. 142
another entity, merger with another entity or entities, or c. One dimension of the consequences of change of'
coming under the protectorate of, or some other legal sovereignty is the extent to which sovereignty over ter-
control by, one or more other states; and (3) the transfer ritory is affected. If the legal identity of the territory is
of sovereignty or other form of legal control over an area completely changed, as in the independence of a new
from one state to another existmg state through cession or state, the change is denominated "total" succession. If
unilateral annexation. Whatever the formal differences some aspects of legal control change hands, but interna-
between these modes, the changes have one feature in tional legal personality remains relatively unimpaired, as
common: one state ceases to rule in, or have legal control in the establishment of a protectorate, the process is called
over, a territory, and another state assumes legal control. "partial" succession, because the degree to which the
The essential issue in the "law of state succession" is to "protected" state surrenders legal control over its internal ,
what extent the state replacing the former sovereign affairs, and its international relations, may vary, and as a
assumes the rights and duties of the former sovereign. consequence the extent to which the protecting state
Within each of the three main categories of change, the assumes legal responsibility for the consequences of acts
legal consequences of different types of change are not prior to the establishment of the protectorate may vary.
necessarily similar; for example, the establishment of a Similarly, when the protected state resumes full control
protectorate may have consequences different from those over its internal and external affairs, the extent to which it

139. For a comparative study, see Rank, Modern War and the 141. 15 U.N.T.S.295, 356.
Validity of Treaties, 38 Cornell L. Q. 321, 51 1 (1953). 142. See Jones, State Succession in the Matter of Treaties, 119471
140. 279 U.S.231 at 236 (1929). Brit. Y.B. I.L. 360.