Treaties

Treaties. A treaty is a contract between two or more states. The Latin term " tractatus," and its derivatives, though of occasional occurrence in this sense from the 13th century onwards, only began to be commonly so employed, in lieu of the older technical terms " conventio publica," or " foedus," from the end of the r7th century. In the language of modern diplomacy the term " treaty " is restricted to the more important international agreements, especially to those which are the work of a congress; while agreements dealing with subordinate questions are described by the more general term " convention." The present article will disregard this distinction.

The making and the observance of treaties is necessarily a very early phenomenon in the history of civilization, and the theory of treaties was one of the first departments of international law to attract attention. Treaties are recorded on the monuments of Egypt and Assyria; they occur in the Old Testament Scriptures; and questions arising under vvvBijrcar, and foedera occupy much space in the Greek and Roman historians.' Treaties have been classified on many principles, of which it will suffice to mention the more important. A " personal treaty," having reference to dynastic interests, is contrasted with a " real treaty," which binds the nation irrespectively 1 For the celebrated treaty of 509 B.C. between Rome and Carthage, see Polybius iii. 22; and, on the subject generally, Barbeyrac's full but very uncritical Histoire des anciens traitez, (1739); Muller-Jochmus, Geschichte des Volkerrechts im Alterthum (1848); E. Egger, Etudes historiques sur les traites publics chez les grecs et chez les romains (new ed., 1866).

of constitutional changes; treaties creating outstanding obligations are opposed to " transitory conventions," e.g. for cession of territory, recognition of independence, C/assificat i and the like, which operate irrevocably once for 1".

all, leaving nothing more to be done by the contracting parties; and treaties in the nature of a definite transaction (Rechtsgeschaift) are opposed to those which aim at establishing a general rule of conduct (Rechtssatz). With reference to their objects, treaties may perhaps be conveniently classified as (r) political, including treaties of peace, of alliance, of cession, of boundary, for creation of international servitudes, of neutralization, of guarantee, for the submission of a controversy to arbitration; (2) commercial, including consular and fishery conventions, and slave trade and navigation treaties; (3) confederations for special social objects, such as the Zollverein, the Latin monetary union, and the still wider unions with reference to posts, telegraphs, submarine cables and weights and measures; (4) relating to criminal justice, e.g. to extradition and arrest of fugitive seamen; (5) relating to civil justice, e.g. to the protection of trade-mark and copyright, to the execution of foreign judgments, to the reception of evidence, and to actions by and against foreigners; (6) promulgating written rules of international law, upon topics previously governed, if at all, only by unwritten custom, with reference e.g. to the peaceful settlement of international disputes, or to the conduct of warfare.

It must be remarked that it is not always possible to assign a treaty wholly to one or other of the above classes, since many treaties contain in combination clauses referable to several of them.

The analogy between treaty-making and legislation is striking when a congress agrees upon general principles which are afterwards accepted by a large number of states, as, for instance, in the case of the Geneva conventions for improving the treatment of the wounded. Many political treaties containing " transitory conventions," with reference to recognition, boundary or cession, become, as it were, the title-deeds of the nations to which they relate.' But the closest analogy of a treaty is to a contract in private law.

The making of a valid treaty implies several requisites. (r) It must be made between competent parties, i.e. sovereign states. A " concordat," to which the pope, as a spiritual authority, is one of the parties, is therefore not a treaty, nor is a convention between a state and an individual, nor a convention between the rulers of two states with reference to their private affairs. Semi-sovereign states, such as San Marino or Egypt, may make conventions upon topics within their limited competence. It was formally alleged that an infidel state could not be a party to a treaty. The question where the treaty-making power resides in a given state is answered by the municipal law of that state. In Great Britain it resides in the executive (see the parliamentary debates upon the cession of Heligoland in 1890); sometimes, however, it is shared for all purposes, as in the United States, or for certain purposes only, as in many countries of the European continent, by the legislature, or by a branch of it. (2)There must be an expression of agreement. This is not (as in private law) rendered voidable by duress; e.g. the cession of a province, though extorted by overwhelming force, is nevertheless unimpeachable. Duress to the individual negotiator would, however, vitiate the effect of his signature. (3) From the nature of the case, the agreement of states, other than those the government of which is autocratic, must be signified by means of agents, whose authority is either express, as in the case of plenipotentiaries, or implied, as in the case of e.g. military and naval commanders, for matters, such as truces, capitulations and cartels, which are necessarily confided to their discretion. When an agent acts in excess of his implied authority, he is said to make no treaty, but a mere " sponsion," which, unless adopted by his government, does not bind it, e.g. the affair of the Caudine Forks ' Cf. Sir Edward Hertslet's very useful collections entitled: The Map of Europe by Treaty (4 vols., 1875-1891), and The Map of Africa by Treaty (2 vols., 1894).

(Livy ix. 5) and the convention of Closter Seven in 1 757. (4) Unlike a contract in private law, a treaty, even though made in pursuance of a full power, is, according to modern views, of no effect till it is ratified. It may be remarked that ratification, though hitherto not thought to be required for " declarations," such as the Declaration of Paris of 1856, was expressly stipulated for in the case of those signed at the peace conferences of 1899 and 1907. (5) No special form is necessary for a treaty, which in theory may be made without writing. It need not even appear on the face of it to be a contract between the parties, but may take the form of a joint declaration, or of an exchange of notes. Latin was at one time the language usually employed in treaties, and it continued to be so employed to a late date by the emperor and the pope. Treaties to which several European powers of different nationalities are parties are now usually drawn up in French (the use of which became general in the time of Louis XIV.), but the treaties of Aix-la-Chapelle of 1748 and 1784 contain, as does the final act of the congress of Vienna, a protest against the use of this language being considered obligatory. French is, however, exclusively used in the treaties constituting the great " international unions "; and bilingual treaties are sometimes accompanied by a third version in French, to be decisive in case of alleged variances between the other two. A great European treaty has usually commenced " In the name of the Most Holy and Indivisible Trinity," or, when the Porte is a party, " In the name of Almighty God." (6) It is sometimes said that a treaty must have a lawful object, but the danger of accepting such a statement is apparent from the use which has been made of it by writers who deny the validity of any cession of national territory, or even go so far as to lay down, with Fiore, that " all should be regarded as void which are in any way opposed to the development of the free activity of a nation, or which hinder the exercise of its natural rights." (7) The making of a treaty is sometimes accompanied by acts intended to secure its better performance. The taking of oaths, the assigning of " conservatores pacis " and the giving of hostages are now obsolete, but revenue is mortgaged, territory is pledged, and treaties of guarantee are entered into for this purpose.

A " transitory convention " operates at once, leaving no duties to be subsequently performed, but with reference to conventions. of other kinds questions arise as to the duration of the obligation created by them; in other words, as to the moment at which those obligations come to an end. This may occur by the dissolution of one of the contracting states, by the object-matter of the agreement ceasing to exist, by full performance, by performance becoming impossible, by lapse of the time for which the agreement was made, by contrarius consensus or mutual release, by " denunciation " by one party under a power reserved in the treaty. By a breach on either side the treaty usually becomes, not void, but voidable. A further cause of the termination of treaty obligations is a total change of circumstances, since a clause " rebus sic stantibus " is said to be a tacit condition in every treaty.' Such a contention can only be very cautiously admitted. It has been put forward by Russia in justification of her repudiation of the clauses of the Treaty of Paris neutralizing the Black Sea, and of her engagements as to Batoum contained in the Treaty of Berlin. The London protocol of 1871, with a view to prevent such abuses, lays down, perhaps a little too broadly, " that it is an essential principle of the law of nations that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers, by means of an amicable arrangement." Treaties are in most cases suspended, if not terminated, by the outbreak of a war between the contracting parties (though the Spanish decree of the 23rd of April 1898 went too far when it asserted that the war with the United States had terminated " all conventions that have been in force up to the present between the two countries "), and are therefore usually revived in express terms in the treaty of peace.

' Cf. Bynkershoek, Quest. sur pub. vol. ii. ch. 10. The rules for the interpretation of treaties are not so different from those applicable to contracts in private law as to need here a separate discussion.

Collections of treaties are either (i.) general or (ii.) national.

i. The first to publish a general collection of treaties was Leibnitz, whose Codex juris gentium, containing documents from 1097 to 5497, " ea quae sola inter liberos populos legum sunt loco " appeared in 1693, and was followed in 1700 by the Mantissa. The Corps universel diplomatique du droit des gens of J. Dumont, continued by J. Barbeyrac and Rousset in thirteen folio volumes, containing treaties from A.D. 315 to 1730, was published in 17261 739. Wenck's Corpus juris gentium recentissimi (3 vols. 8vo, 1781-1795) contains treaties from 1735 to 1772. The 8vo Recueil of G. F. de Martens, continued by C. de Martens, Saalfeld, Murhard, K. F. Samwer, K. Hopf, F. Stoerk and H. Triepel, commenced in 1791 with treaties of 1761, and is still in progress. The series in 19to extended to eighty-eight volumes; that for 1910 being the third of the Nouveau recueil general (23 me serie). See also the Recueil international des traites de siecle (1904, sqq.), by Descamps en Renault, and the following periodical publications: Das Staatsarchiv, Sammlung der officiellen Actenstiicke zur Geschichte der Gegenwart (Leipzig, commencing in 1861); Archives diplomatiques (Stuttgart, since 1821); Archives diplomatiques, recueil mensuel de diplomatie et d'histoire (Paris, since 1861); and Hertslet's British and Foreign State Papers, from the Termination of the War of 1814 to the Latest Period, compiled at the Foreign Office by the Librarian and Keeper of the Papers (London, since 1819, and still in progress).

ii. The more important collections of national treaties are those of MM. Neumann and de Plasson from 1855, and of the commission for modern history from 1903, for Austria; Beutner for the German Empire, 1883; C. Calvo for " l'Amerique latine, " 1862-1869; de Clercq for France, 1864-1908; De Garcia de la Vega for Belgium, 1850, &c., Lagemans and Breukelman for the Netherlands, 1858, &c.; Soutzo for Greece, 1858; Count Solar de la Marguerite for Sardinia, 1836-1861; Olivart for Spain, 1890, &c.; Da Castro for Portugal, 1856-1879; Rydberg for Sweden, 1877; Kaiser, 1861, and Eichmann, 1885, for Switzerland; Baron de Testa, 1864, &c., Aristarchi Bey 1873-1874, and Effendi Noradounghian, 1897-1903, for Turkey; F. de Martens for Russia (the 9 vols. published1874-1907contain the treaties made by Russia with Austria, Germany, Great Britain and France respectively); W. F. Mayers for China, 1877.1877. The official publication for Italy begins in 1864 (see also the collection by Luigi Palma, 1879, &c.), for Spain in 1843, for Denmark in 1874. The treaties of Japan were published by authority in 1899. Those of the United States are contained in the Statutes at Large of the United States, and in the Treaties, Conventions, etc., between the United States of America and Other Powers, 1776-1909 (Washington, 1910); also in the collections of J. Elliott (1834) and H. Minot (1844-1850); see also Mr Bancroft Davis's Notes upon the Treaties of the United States with other Powers, preceded by a list of the Treaties and Conventions with Foreign Powers, chronologically arranged and followed by an Analytical Index and a Synoptical Index of the Treaties (1873). In England no treaties were published before the 17th century, such matters being thought " not fit to be made vulgar. " The treaty of 1604 with Spain was, however, published by authority, as were many of the treaties of the Stuart kings. Rymer's Foedera was published, under the orders of the government, in twenty volumes, from 1704 to 1732; but for methodical collections of the earlier British treaties we are indebted to private enterprise, which produced three volumes in 1710-1713, republished with a fourth volume in 1732. Other three volumes appeared in 1772-1781, the collection commonly known as that of C. Jenkinson (3 vols.) in 1785 and that of G. Chalmers (2 vols.) in 1795. The recent treaties made by Great Britain, previously dispersed through the numbers of the London Gazette or embedded in masses of diplomatic correspondence presented to parliament at irregular intervals, are now officially published as soon as ratified in a special 8vo. " Treaty Series " of parliamentary papers commenced in 5902. J. Macgregor published (1841-1844) eight volumes of commercial treaties, but the great collection of the commercial treaties of Great Britain is that of L. Hertslet, librarian of the foreign office, continued by his son, Sir Edward Hertslet, and later holders of the same office, entitled A Complete Collection of the Treaties and Conventions and Reciprocal Regulations at present subsisting between Great Britain and Foreign Powers, and of the Laws and Orders in Council concerning the same, so far as they relate to Commerce and Navigation, the Slave Trade, Post Office, &c., and to the Privileges and Interests of the Subjects of the Contracting Parties (24 vols., 1820-1907). Sir Edward Hertslet also commenced in 1875 a series of volumes containing Treaties and Tariffs regulating the Trade between Britain and Foreign Nations, and Extracts of Treaties between Foreign Powers, containing the Most Favoured Nation Clauses applicable to Great Britain. Both of these publications are still continued. He also published, in 1891, Treaties, &c., concluded between Great Britain and Persia, and between Persia and Foreign Powers; and, in 1896, a similar work on treaties with China The treaties affecting British India are officially set out, with historical notes, in A Collection of Treaties, Engagements and Sannuds relating to India and Neighbouring Countries, by C. V. Aitchison. This work, with the index, extends to eight volumes, which appeared at Calcutta in 1862-1866. A continuation by A. C. Talbot was published in 1876, and it was brought up to date by the government of India in 1909. Useful lists of national collections of treaties will be found in the Revue de droit international for 1886, pp. 169-187, and in the Marquis Olivart's Catalogue de ma bibliotheque (1899-1910).

It maybe worth while to add a list of some of the more important treaties, now wholly or partially in force, some of which are List of discussed under separate headings, especially those important to which Great Britain is a party, classified accord- Treaties. ing to their objects, in the order suggested above.

i. The principal treaties affecting the distribution of territory between the various states of Central Europe are those of Westphalia (Osnabruck and Miinster), 1648; Utrecht, 1713;1713; Paris and Hubertusburg, 1763; for the partition of Poland, 1772, 1793; Vienna, 1815; London, for the separation of Belgium from the Netherlands, 1831, 1839; Zurich, for the cession of a portion of Lombardy to Sardinia, 1859; Vienna, as to SchleswigHolstein, 1864; Prague, whereby the German Confederation was dissolved, Austria recognizing the new North German Confederation, transferring to Prussia her rights over SchleswigHolstein, and ceding the remainder of Lombardy to Italy, 1866; Frankfort, between France and the new German Empire, 1871. The disintegration of the Ottoman Empire has been regulated by the Great Powers, or some of them, in the treaties of London, 1832, 1863, 1864, and of Constantinople, 1881, with reference to Greece; and by the treaties of Paris, 1856; London, 1871; Berlin, 1878;1878; London, 1883, with reference to Montenegro, Rumania, Servia, Bulgaria and the navigation of the Danube. The encroachments of Russia upon Turkey, previous to the Crimean War, are registered in a series of treaties beginning with that of Kuchuk-Kainarji, 1774, and ending with that of Adrianople in. 1829. The independence of the United States of America was acknowledged by Great Britain in the treaty of peace signed at Paris in 1783. The boundary between the United States and the British possessions is regulated in detail by the treaties of Washington of 1842, 1846, 1871, 1903 and 1908. The territorial results of the war of 1898 between the United States and Spain are registered in the treaty of 1899, and those of the Russo-Japanese War in the treaty of Portsmouth of 1905. Various causes of possible misunderstanding between Great Britain and France were removed by the convention of 1904; and a similar treaty was concluded with Russia in 1908. The navigation of the Suez Canal is regulated by a treaty of 1888, and that of the future Panama Canal by one of 1901. The boundaries of the territories, protectorates and spheres of influence in Africa of Great Britain, Germany, France, Italy, Belgium and Portugal have been readjusted by a series of treaties, especially between the years 1885 and 1894. Switzerland, Belgium, Corfu and Paxo and Luxemburg are respectively neutralized by the treaties of Vienna, 1815, and of London, 1839, 1864, 1867. A list of treaties of guarantee supposed to be then in force, to which Great Britain is a party, beginning with a treaty made with Portugal in 1373, was presented to parliament in 1859. Treaties of alliance were made between Great Britain and Japan in 1902 and 1905.

ii. For the innumerable conventions, to which Great Britain is a party, as to commerce, consular jurisdiction, fisheries and the slave trade, it must suffice to refer to the exhaustive and skilfully devised index to vols. 1-21 of Hertslet's Commercial Treaties, published in 1905 as vol. 22 of the series.

iii. The social intercourse of the world is facilitated by conventions, such as those establishing the Latin monetary union, 1865; the international telegraphic union, 1865; the universal postal union, 1874; the international bureau of weights and measures, 1875; providing for the protection of submarine cables in time of peace, 1884; the railway traffic union, 1890. Such treaties, now very numerous, are somewhat misleadingly spoken of by recent writers (L. von Stein and F. de Martens) as constituting a " droit administratif international." iv. For the now operative treaties of extradition to which Great Britain is a party, it will be sufficient to refer to the article Extradition. It may be observed that all of them, except the treaty of 1842, now, however, varied by one of 1889, with the United States, are subsequent to, and governed by, the provisions of 33 & 34 Vict. C. 52, The Extradition Act 1870. Before the passing of this general act it had been necessary to pass a special act for giving effect to each treaty of extradition. The most complete collection of treaties of extradition is that of F. J. Kirchner, L'Extradition, Recueil, &c. (London, 1883).

v. General conventions, to which most of the European states are parties, were signed in 1883 at Paris for the protection of industrial, and in 1886 at Bern for the protection of literary and artistic, property, and, from 1899 onwards, a series of general treaties, to none of which is Great Britain a party, have been signed at the Hague, as the result of conferences, invited by the government of the Netherlands, for solving some of the more pressing questions arising out of " the conflict of laws." vi. Quasi-legislation by treaty has been directed mainly to encouraging the settlement of international disputes by peaceful methods, and to regulating the conduct of warfare. The first peace conference, held at the Hague in 1899, devoted much time to producing the generally accepted " Convention for the Pacific Settlement of International Disputes." An important achievement of this convention was the establishment at the Hague of an international tribunal, always ready to arbitrate upon cases submitted to it; and the convention recommended recourse not only to arbitration, but also to good offices and mediation, and to international commissions of inquiry. This convention has now been superseded by the revised and amplified edition of it adopted by the second peace conference in 1907. The provisions of neither convention are obligatory, but merely " facultative," amounting only to recommendations. Great efforts were made, especially in 1907, but without success, to drafc a generally acceptable convention, making resort to arbitration compulsory, at any rate with reference to certain classes of questions. In the meantime, however, agreements of this nature between one power and another have multiplied rapidly within the last few years (see Arbitration).

Certain bodies of rules intended to mitigate the horrors of war have received the adhesion of most civilized states. Thus the declaration of Paris, 1856 (to which, however, the United States, Venezuela and Bolivia have not yet formally acceded), prohibits the use of privateers and protects the commerce of neutrals; the Geneva conventions, 1864 and 1906, give protection to the wounded and to those in attendance upon them; the St Petersburg declaration, 1868, prohibits the employment of explosive bullets weighing less than 400 grammes; and the three Hague declarations of 1899 prohibit respectively (I) the launching of projectiles from balloons, (2) the use of projectiles for spreading harmful gases, and (3) the use of expanding bullets. The second Hague conference, of 1907, besides revising the convention made by the first conference, of 18 99, as to the laws of war on land, produced new conventions, dealing respectively with the opening of hostilities; neutral rights and duties in land warfare; the status of enemy merchant ships at the outbreak of war; the conversion of merchant ships into ships of war; submarine mines; bombardment by naval forces; the application of the Geneva principles to naval warfare; the rights of maritime capture; the establishment of an international prize court; and neutral rights and duties in maritime warfare. These conventions, as well as a republication of the first Hague declaration, which had in 1907 expired by efflux of time, have been already largely ratified.

It were greatly to be wished that the official publication of treaties could be rendered more speedy and more methodical than it now is. The labours of the publicist would also be much lightened were it possible to consolidate the various general collections of diplomatic acts into a new Corps diplomatique universel, well furnished with cross references, and with brief annotations showing how far each treaty is supposed to be still in force.

Literature

In addition to the works already cited in the course of this article the following are for various reasons important: Joh. Lupus, De confederatione principum (Strassburg, 1511, the first published monograph upon the subject); Bodinus, Dissertatio de contractibus summarum potestatum (Halle, 1696); Neyron, De vi foederum inter gentes (Göttingen, 1778); Neyron, Essai historique et politique sur les garanties, &c. (Göttingen, 1797); Wachter, De modis tollendi pacta inter gentes (Stuttgart, 1780); Dresch, Ueber die Dauer der VOlkervertrcige (Landshut, 1808); C. Bergbohm, Staatsvertreige and Gesetze als Quellen des Volkerrechts (Dorpat, 1877); Jellinek, Die rechtliche Natur der Statenvertrcige (Vienna, 1880); D. Donati, Trattati internazionali nel diritto costituzionale (1907); Holzendorff, Handbuch des Volkerrechts (1887) vol. iii.; Fleischmann, Volkerrechtsquellen in Auswahl herausgegeben (1905); de Lapradelle, Recueil des arbitrages internationaux (1905); J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party (1898) 6 vols. For a list of the principal " concordats," see Calvo, Droit international theorique et pratique t. On the history of the great European treaties generally, see the Histoire abregee des traites de paix entre les puissances de l'Europe, by Koch, as recast and continued by Scholl (1817 and 1818), and again by Count de Garden in 1848-1859, as also the Recueil manuel of De Martens and Cussy, continued by Geffcken. For the peace of Westphalia, Patter's Geist des westphalischen Friedens (1795) is useful; for the congress of Vienna Klaber's Acten des Wiener Congresses (1815-1819) and Le Congres de Vienne et les traites de 1815 precede des conferences de Dresde, de Prague et de Chatillon, suivi des Congres d'Aix-la-Chapelle, Troppau, Laybach et Verone, by Count Angeberg. The last-mentioned writer has also published collections of treaties relating to Poland, 1762-1862; to the Italian question, 1859; to the Congress of Paris, 1856 and the revision of its work by the Conference of London, 1871; and to the Franco-German War of 1870-71. For the treaties regulating the Eastern question see The European Concert in the Eastern Question, by T. E. Holland (1885)(1885) and La Turquie et le Tanzimat, by E. Engelhardt (1882-1884). (T. E. H.)