Chapter II: Treaties (1)

I

CHARACTER AND FUNCTION OF TREATIES

Vattel, II. §§ 152, 153, 157, 163--Hall, § 107--Phillimore, II. §
44--Twiss, I. §§ 224-233--Taylor, §§ 341-342--Bluntschli, §
402--Heffter, § 81--Despagnet, Nos. 435-436--Pradier-Fodéré, II.
Nos. 888-919--Rivier, II. pp. 33-40--Nys, III. pp. 18-20 and
43-48--Calvo, III. §§ 1567-1584--Fiore, II. Nos. 976-982--Martens,
I. § 103--Bergbohm, "Staatsverträge und Gesetze als Quellen des
Völkerrechts" (1877)--Jellinek, "Die rechtliche Natur der
Staatenverträge" (1880)--Laghi, "Teoria dei trattati
internazionali" (1882)--Buonamici, "Dei trattati internazionali"
(1888)--Nippold, "Der völkerrechtliche Vertrag" (1894)--Triepel,
"Völkerrecht und Landesrecht" (1899), pp. 27-90.

[Sidenote: Conception of Treaties.]

§ 491. International treaties are conventions or contracts between two or more States concerning various matters of interest. Even before a Law of Nations in the modern sense of the term was in existence, treaties used to be concluded between States. And although in those times treaties were neither based on nor were themselves a cause of an International Law, they were nevertheless considered sacred and binding on account of religious and moral sentiment. However, since the manifold intercourse of modern times did not then exist between the different States, treaties did not discharge such all-important functions in the life of humanity as they do now.

[Sidenote: Different kinds of Treaties.]

§ 492. These important functions are manifest if attention is given to the variety of international treaties which exist nowadays and are day by day concluded for innumerable purposes. In regard to State property, treaties are concluded of cession, of boundary, and many others. Alliances, treaties of protection, of guarantee, of neutrality, and of peace are concluded for political purposes. Various purposes are served by consular treaties, commercial[849] treaties, treaties in regard to the post, telegraphs, and railways, treaties of copyright and the like, of jurisdiction, of extradition, monetary treaties, treaties in regard to measures and weights, to rates, taxes, and custom-house duties, treaties on the matter of sanitation with respect to epidemics, treaties in the interest of industrial labourers, and treaties with regard to agriculture and industry. Again, various purposes are served by treaties concerning warfare, mediation, arbitration, and so on.

[Footnote 849: See below, §§ 578-580.]

I do not intend to discuss the question of classification of the different kinds of treaties, for hitherto all attempts[850] at such classification have failed. But there is one distinction to be made which is of the greatest importance and according to which the whole body of treaties is to be divided into two classes. For treaties may, on the one hand, be concluded for the purpose of confirming, defining, or abolishing existing customary rules, and of establishing new rules for the Law of Nations. Treaties of this kind ought to be termed _law-making_ treaties. On the other hand, treaties may be concluded for all kinds of other purposes. Law-making treaties as a source of rules of International Law have been discussed above (§ 18); the most important of these treaties will be considered below (§§ 556-568_b_).

[Footnote 850: Since the time of Grotius the science of the Law of Nations has not ceased attempting a satisfactory classification of the different kinds of treaties. See Heffter, §§ 88-91; Bluntschli, §§ 442-445; Martens, I. § 113; Ullmann, § 82; Wheaton, § 268 (following Vattel, II. § 169); Rivier, II. pp. 106-118; Westlake, I. p. 283, and many others.]

[Sidenote: Binding Force of Treaties.]

§ 493. The question as to the reason of the binding force of international treaties always was, and still is, very much disputed. That all those publicists who deny the legal character of the Law of Nations deny likewise a legally binding force in international treaties is obvious. But even among those who acknowledge the legal character of International Law, unanimity by no means exists concerning this binding force of treaties. The question is all the more important as everybody knows that treaties are sometimes broken, rightly according to the opinion of the one party, and wrongly according to the opinion of the other. Many publicists find the binding force of treaties in the Law of Nature, others in religious and moral principles, others[851] again in the self-restraint exercised by States in becoming a party to a treaty. Some writers[852] assert that it is the contracting parties' own will which gives binding force to their treaties, and others[853] teach that such binding force is to be found _im Rechtsbewusstsein der Menschheit_--that is, in the idea of right innate in man. I believe that the question can satisfactorily be dealt with only by dividing it into several different questions and by answering those questions _seriatim_.

[Footnote 851: So Hall, § 107; Jellinek, "Staatenverträge," p. 31; Nippold, § 11.]

[Footnote 852: So Triepel, "Völkerrecht und Landesrecht" (1899), p. 82.]

[Footnote 853: So Bluntschli, § 410.]

First, the question is to be answered why treaties are legally binding. The answer must categorically be that this is so because there exists a customary rule of International Law that treaties are binding.

Then the question might be put as to the cause of the existence of such customary rule. The answer must be that such rule is the product of several joint causes. Religious and moral reasons require such a rule quite as much as the interest of the States, for no law could exist between nations if such rule did not exist. All causes which have been and are still working to create and maintain an International Law are at the background of this question.

And, thirdly, the question might be put how it is possible to speak of a legally binding force in treaties without a judicial authority to enforce their stipulations. The answer must be that the binding force of treaties, although it is a legal force, is not the same as the binding force of contracts according to Municipal Law, since International Law is a weaker law, and for this reason less enforceable, than Municipal Law. But just as International Law does not lack legal character in consequence of the fact that there is no central authority[854] above the States which could enforce it, so international treaties are not deficient of a legally binding force because there is no judicial authority for the enforcement of their stipulations.

[Footnote 854: See above, § 5.]

II

PARTIES TO TREATIES

Vattel, II. §§ 154-156, 206-212--Hall, § 108--Westlake, I. p.
279--Phillimore, II. §§ 48-49--Halleck, I. pp. 275-278--Taylor, §§
361-365--Wheaton, §§ 265-267--Moore, V. §§ 734-737--Bluntschli, §§
403-409--Heffter, §§ 84-85--Ullmann, § 75--Bonfils, No.
818--Despagnet, No. 446--Pradier-Fodéré, II. Nos.
1058-1068--Rivier, II. pp. 45-48--Nys, III. pp. 20-24--Calvo, III.
§§ 1616-1618--Fiore, II. Nos. 984-1000, and Code, Nos.
743-749--Martens, I. § 104--Nippold, op. cit. pp. 104-112--Schoen
in Z.V. V. (1911), pp. 400-431.

[Sidenote: The Treaty-making Power.]

§ 494. The so-called right of making treaties is not a right of a State in the technical meaning of the term, but a mere competence attaching to sovereignty. A State possesses, therefore, treating-making power only so far as it is sovereign. Full-Sovereign States may become parties to treaties of all kinds, being regularly competent to make treaties on whatever matters they please. Not-full Sovereign States, however, can become parties to such treaties only according to their competence to conclude. It is impossible to lay down a hard-and-fast rule concerning such competence of all not-full Sovereign States. Everything depends upon the special case. Thus, the constitutions of Federal States comprise provisions with regard to the competence, if any, of the member-States to conclude international treaties among themselves as well as with foreign States.[855] Thus, again, it depends upon the special relation between the suzerain and the vassal how far the latter possesses the competence to enter into treaties with foreign States; ordinarily a vassal can conclude treaties concerning such matters as railways, extradition, commerce, and the like.

[Footnote 855: According to articles 7 and 9 of the Constitution of Switzerland the Swiss member-States are competent to conclude non-political treaties among themselves, and, further, such treaties with foreign States as concern matters of police, of local traffic, and of State economics. According to article 11 of the Constitution of the German Empire, the German member-States are competent to conclude treaties concerning all such matters as do not, in conformity with article 4 of the Constitution, belong to the competence of the Empire. On the other hand, according to article 1, section 10, of the Constitution of the United States of America, the member-States are incompetent either to conclude treaties among themselves or with foreign States.]

[Sidenote: Treaty-making Power exercised by Heads of States.]

§ 495. The treaty-making power of all States is exercised by their heads, either personally or through representatives appointed by these heads. The Holy Alliance of Paris, 1815, was personally concluded by the Emperors of Austria and Russia and the King of Prussia. And when, on June 24, 1859, the Austrian army was defeated at Solferino, the Emperors of Austria and France met on July 11, 1859, at Villafranca and agreed in person on preliminaries of peace. Yet, as a rule, heads of States do not act in person, but authorise representatives to act for them. Such representatives receive a written commission, known as powers or full powers, which authorises them to negotiate in the name of the respective heads of States. They also receive oral or written, open or secret instructions. But, as a rule, they do not conclude a treaty finally, for all treaties concluded by such representatives are in principle not valid before ratification.[856] If they conclude a treaty by exceeding their powers or acting contrary to their instructions, the treaty is not a real treaty and not binding upon the State they represent. A treaty of such a kind is called a _sponsio_ or _sponsiones_. _Sponsiones_ may become a real treaty and binding upon the State through the latter's approval. Nowadays, however, the difference between real treaties and _sponsiones_ is less important than in former times, when the custom in favour of the necessity of ratification for the validity of treaties was not yet general. If nowadays representatives exceed their powers, their States can simply refuse ratification of the _sponsio_.

[Footnote 856: See below, § 510.]

[Sidenote: Minor Functionaries exercising Treaty-making Power.]

§ 496. For some non-political purposes of minor importance, certain minor functionaries are recognised as competent to exercise the treaty-making power of their States. Such functionaries are _ipso facto_ by their offices and duties competent to enter into certain agreements without the requirement of ratification. Thus, for instance, in time of war, military and naval officers in command[857] can enter into agreements concerning a suspension of arms, the surrender of a fortress, the exchange of prisoners, and the like. But it must be emphasised that treaties of this kind are valid only when these functionaries have not exceeded their powers.

[Footnote 857: See Grotius, III. c. 22.]

[Sidenote: Constitutional Restrictions.]

§ 497. Although the heads of States are regularly, according to the Law of Nations, the organs that exercise the treaty-making power of the States, constitutional restrictions imposed upon the heads concerning the exercise of this power are nevertheless of importance for the Law of Nations. Such treaties concluded by heads of States or representatives authorised by these heads as violate constitutional restrictions are not real treaties and do not bind the State concerned, because the representatives have exceeded their powers in concluding the treaties.[858] Such constitutional restrictions, although they are not of great importance in Great Britain,[859] play a prominent part in the Constitutions of most countries. Thus, according to article 8 of the French Constitution, the President exercises the treaty-making power; but peace treaties and such other treaties as concern commerce, finance, and some other matters, are not valid without the co-operation of the French Parliament. Thus, further, according to articles 1, 4, and 11 of the Constitution of the German Empire, the Emperor exercises the treaty-making power; but such treaties as concern the frontier, commerce, and several other matters, are not valid without the co-operation of the Bundesrath and the Reichstag. Again, according to article 2, section 2, of the Constitution of the United States, the President can only ratify treaties with the consent of the Senate.

[Footnote 858: The whole matter is discussed with great lucidity by Nippold, op. cit. pp. 127-164; see also Schoen, loc. cit.]

[Footnote 859: See Anson, "The Law and Custom of the Constitution," II. (2nd ed.), pp. 297-300.]

[Sidenote: Mutual Consent of the Contracting Parties.]

§ 498. A treaty being a convention, mutual consent of the parties is necessary. Mere proposals made by one party and not accepted by the other are, therefore, not binding upon the proposer. Without force are also pollicitations which contain mere promises without acceptance by the party to whom they were made. Not binding are, lastly, so-called _punctationes_, mere negotiations on the items of a future treaty, without the parties entering into an obligation to conclude that treaty. But such _punctationes_ must not be confounded either with a preliminary treaty or with a so-called _pactum de contrahendo_. A preliminary treaty requires the mutual consent of the parties with regard to certain important points, whereas other points have to be settled by the definitive treaty to be concluded later. Such preliminary treaty is a real treaty and therefore binding upon the parties. A _pactum de contrahendo_ requires likewise the mutual consent of the parties. It is an agreement upon certain points to be incorporated in a future treaty, and is binding upon the parties. The difference between _punctationes_ and a _pactum de contrahendo_ is, that the latter stipulates an obligation of the parties to settle the respective points by a treaty, whereas the former does not.

[Sidenote: Freedom of Action of consenting Representatives.]

§ 499. As a treaty will lack binding force without real consent, absolute freedom of action on the part of the contracting parties is required. It must, however, be understood that circumstances of urgent distress, such as either defeat in war or the menace of a strong State to a weak State, are, according to the rules of International Law, not regarded as excluding the freedom of action of a party consenting to the terms of a treaty. The phrase "freedom of action" applies only to the _representatives_ of the contracting States. It is _their_ freedom of action in consenting to a treaty which must not have been interfered with and which must not have been excluded by other causes. A treaty concluded through intimidation exercised against the representatives of either party or concluded by intoxicated or insane representatives is not binding upon the party so represented. But a State which was forced by circumstances to conclude a treaty containing humiliating terms has no right afterwards to shake off the obligations of such treaty on the ground that its freedom of action was interfered with at the time.[860] This must be emphasised, because in practice such cases of repudiation have frequently occurred. A State may, of course, hold itself justified by political necessity in shaking off such obligations, but this does not alter the fact that such action is a breach of law.

[Footnote 860: See examples in Moore, V. § 742.]

[Sidenote: Delusion and Error in Contracting Parties.]

§ 500. Although a treaty was concluded with the real consent of the parties, it is nevertheless not binding if the consent was given in error, or under a delusion produced by a fraud of the other contracting party. If, for instance, a boundary treaty were based upon an incorrect map or a map fraudulently altered by one of the parties, such treaty would by no means be binding. Although there is freedom of action in such cases, consent has been given under circumstances which prevent the treaty from being binding.

III

OBJECTS OF TREATIES

Vattel, II. §§ 160-162, 166--Hall, § 108--Phillimore, II. §
51--Walker, § 30--Bluntschli, §§ 410-416--Heffter, § 83--Ullmann,
§ 97--Bonfils, No. 819--Despagnet, No. 445--Pradier-Fodéré, II.
Nos. 1080-1083--Mérignhac, II. p. 640--Rivier, II. pp. 57-63--Nys,
III. p. 24--Fiore, II. Nos. 1001-1004, and Code, Nos.
755-758--Martens, I. § 110--Jellinek, "Die rechtliche Natur der
Staatenverträge" (1880), pp. 59-60--Nippold, op. cit. pp. 181-190.

[Sidenote: Objects in general of Treaties.]

§ 501. The object of treaties is always an obligation, whether mutual between all the parties or unilateral on the part of one only. Speaking generally, the object of treaties can be an obligation concerning any matter of interest for States. Since there exists no other law than International Law for the intercourse of States with each other, every agreement between them regarding any obligation whatever is a treaty. However, the Law of Nations prohibits some obligations from becoming objects of treaties, so that such treaties as comprise obligations of this kind are from the very beginning null and void.[861]

[Footnote 861: The voidance _ab origine_ of these treaties must not be confounded with voidance of such treaties as are valid in their inception, but become afterwards void on some ground or other; see below, §§ 541-544.]

[Sidenote: Obligations of Contracting Parties only can be Object.]

§ 502. Obligations to be performed by a State other than a contracting party cannot be the object of a treaty. A treaty stipulating such an obligation would be null and void. But this must not be confounded with the obligation undertaken by one of the contracting States to exercise an influence upon another State to perform certain acts. The object of a treaty with such a stipulation is an obligation of one of the contracting States, and the treaty is therefore valid and binding.

[Sidenote: An Obligation inconsistent with other Obligations cannot be an Object.]

§ 503. Such obligation as is inconsistent with obligations under treaties previously concluded by one State with another cannot be the object of a treaty with a third State. Thus, in 1878, when after the war Russia and Turkey concluded the preliminary Treaty of Peace of San Stefano, which was inconsistent with the Treaty of Paris of 1856 and the Convention of London of 1871, England protested,[862] and the Powers met at the Congress of Berlin to arrange matters by mutual consent.

[Footnote 862: See Martens, N.R.G. 2nd Ser. III. p. 257.]

[Sidenote: Object must be physically possible.]

§ 504. An obligation to perform a physical impossibility[863] cannot be the object of a treaty. If perchance a State entered into a convention stipulating an obligation of that kind, no right to claim damages for non-fulfilment of the obligation would arise for the other party, such treaty being legally null and void.

[Footnote 863: See below, § 542.]

[Sidenote: Immoral Obligations.]

§ 505. It is a customarily recognised rule of the Law of Nations that immoral obligations cannot be the object of an international treaty. Thus, an alliance for the purpose of attacking a third State without provocation is from the beginning not binding. It cannot be denied that in the past many treaties stipulating immoral obligations have been concluded and executed, but this does not alter the fact that such treaties were legally not binding upon the contracting parties. It must, however, be taken into consideration that the question as to what is immoral is often controversial. An obligation which is considered immoral by other States may not necessarily appear immoral to the contracting parties, and there is no Court that can decide the controversy.

[Sidenote: Illegal Obligations.]

§ 506. It is a unanimously recognised customary rule of International Law that obligations which are at variance with universally recognised principles of International Law cannot be the object of a treaty. If, for instance, a State entered into a convention with another State not to interfere in case the latter should appropriate a certain part of the Open Sea, or should command its vessels to commit piratical acts on the Open Sea, such treaty would be null and void, because it is a principle of International Law that no part of the Open Sea can be appropriated, and that it is the duty of every State to interdict to its vessels the commission of piracy on the High Seas.

IV

FORM AND PARTS OF TREATIES

Grotius, II. c. 15, § 5--Vattel, II. § 153--Hall, § 109--Westlake,
I. pp. 279-281--Wheaton, § 253--Moore, V. § 740--Bluntschli, §§
417-427--Hartmann, §§ 46-47--Heffter, §§ 87-91--Ullmann, §
80--Bonfils, Nos. 821-823--Pradier-Fodéré, II. Nos.
1084-1099--Mérignhac, II. p. 645--Rivier, II. pp. 64-68--Nys, III.
pp. 25-28--Fiore, II. Nos. 1004-1006, and Code, Nos.
759-763--Martens, I. § 112--Jellinek, "Die rechtliche Natur der
Staatenverträge" (1880), p. 56--Nippold, op. cit. pp. 178-181.

[Sidenote: No necessary Form of Treaties.]

§ 507. The Law of Nations includes no rule which prescribes a necessary form of treaties. A treaty is, therefore, concluded as soon as the mutual consent of the parties becomes clearly apparent. Such consent must always be given expressly, for a treaty cannot be concluded by tacit consent. But it matters not whether an agreement is made in writing, orally, or by symbols. Thus, in time of war, the exhibition of a white flag symbolises the proposal of an agreement as to a brief truce for the purpose of certain negotiations, and the acceptance of the proposal on the part of the other side by the exhibition of a similar symbol establishes a convention as binding as any written treaty. Thus, too, history tells of an oral treaty of alliance, secured by an oath, concluded in 1697 at Pillau between Peter the Great of Russia and Frederick III., Elector of Brandenburg.[864] Again, treaties are sometimes concluded through an exchange of diplomatic notes between the Secretaries for Foreign Affairs of two States or through the exchange of personal letters between the heads of two States. However, as a matter of reason, treaties usually take the form of a written[865] document signed by duly authorised representatives of the contracting parties.

[Footnote 864: See Martens, I. § 112.]

[Footnote 865: The only writer who nowadays insists upon a _written_ agreement for a treaty to be valid is, as far as I know, Bulmerincq (§ 56). But although all important treaties are naturally concluded in writing, the example of the agreements concluded between armed forces in time of war either orally or through symbols proves that the written form is not absolutely necessary.]

[Sidenote: Acts, Conventions, Declarations.]

§ 508. International compacts which take the form of written contracts, are, besides _Agreements_ or _Treaties_, sometimes termed _Acts_, sometimes _Conventions_, sometimes _Declarations_. But there is no essential difference between them, and their binding force upon the contracting parties is the same whatever be their name. The Geneva Convention, the Declarations of Paris and of London, and the Final Act of the Vienna Congress are as binding as any agreement which goes under the name of "Treaty" or "Convention." The attempt[866] to distinguish fundamentally between a "Declaration" and a "Convention" by maintaining that whereas a "Convention" creates rules of particular International Law between the contracting States only, a "Declaration" contains the recognition, on the part of the best qualified and most interested Powers, of rules of universal International Law, does not stand the test of scientific criticism. A "Declaration" is nothing else but the title of a law-making treaty according to which the parties engage themselves to pursue in future a certain line of conduct.[867] But such law-making treaties are quite as frequently styled "Conventions" as "Declarations." The best example is the Hague "Convention" concerning the laws and usages of war, which is based upon the unratified "Declaration" concerning the laws and customs of war produced by the Brussels Conference of 1874.

[Footnote 866: On the part of the British Foreign Office, see Parliamentary Papers, Miscellaneous, No. 5 (1909), Cd. 4555, Proceedings of the International Naval Conference held in London, December 1908-1909, p. 57.]

[Footnote 867: See above, § 487.]

[Sidenote: Parts of Treaties]

§ 509. Since International Law lays down no rules concerning the form of treaties, there exist no rules concerning the arrangement of the parts of written treaties. But the following order is usually observed. A first part, the so-called _preamble_, comprises the names of the heads of the contracting States, of their duly authorised representatives, and the motives for the conclusion of the treaty. A second part consists of the primary stipulations in numbered articles. A third part consists of miscellaneous stipulations concerning the duration of the treaty, its ratification, the accession of third Powers, and the like. The last part comprises the signatures of the representatives. But this order is by no means necessary. Sometimes, for instance, the treaty itself does not contain the very stipulations upon which the contracting parties have agreed, such stipulations being placed in an annex to the treaty. It may also happen that a treaty contains secret stipulations in an additional part, which are not made public with the bulk of the stipulations.[868]

[Footnote 868: The matter is treated with all details by Pradier-Fodéré, II. §§ 1086-1096.]

V

RATIFICATION OF TREATIES

Grotius, II. c. 11, § 12--Pufendorf, III. c. 9, § 2--Vattel, II. §
156--Hall, § 110--Westlake, I. pp. 279-280--Lawrence, §
132--Phillimore, II. § 52--Twiss, I. § 214--Halleck, I. pp.
276-277--Taylor, §§ 364-367--Moore, V. §§ 743-756--Walker, §
30--Wharton, II. §§ 131-131A--Wheaton, §§ 256-263--Bluntschli, §§
420-421--Heffter, § 87--Gessner in Holtzendorff, III. pp.
15-18--Ullmann, § 78--Bonfils, Nos. 824-831--Pradier-Fodéré, II.
Nos. 1100-1119--Mérignhac, II. pp. 652-666--Nys, III. pp.
28-36--Rivier, II. § 50--Calvo, III. §§ 1627-1636--Fiore, II. No.
994, and Code, No. 750--Martens, I. §§ 105-108--Wicquefort,
"L'Ambassadeur et ses fonctions" (1680), II. Section
XV.--Jellinek, "Die rechtliche Natur der Staatenverträge" (1880),
pp. 53-56--Nippold, op. cit. pp. 123-125--Wegmann, "Die
Ratifikation von Staatsverträgen" (1892).

[Sidenote: Conception and Function of Ratification.]

§ 510. Ratification is the term for the final confirmation given by the parties to an international treaty concluded by their representatives. Although a treaty is concluded as soon as the mutual consent is manifest from acts of the duly authorised representatives, its binding force is as a rule suspended till ratification is given. The function of ratification is, therefore, to make the treaty binding, and, if it is refused, the treaty falls to the ground in consequence. As long as ratification is not given, the treaty is, although concluded, not perfect. Many writers[869] maintain that, as a treaty is not binding without ratification, it is the latter which really contains the mutual consent and really concludes the treaty. Before ratification, they maintain, there is no treaty concluded, but a mere mutual proposal agreed to to conclude a treaty. But this opinion does not accord with the real facts.[870] For the representatives are authorised and intend to conclude a treaty by their signatures. The contracting States have always taken the standpoint that a treaty is concluded as soon as their mutual consent is clearly apparent. They have always made a distinction between their consent given by representatives and their ratification to be given afterwards, they have never dreamt of confounding the two and considering their ratification their consent. It is for that reason that a treaty cannot be ratified in part, that no alterations of the treaty are possible through the act of ratification, that a treaty may be tacitly ratified by its execution, that a treaty always is dated from the day when it was duly signed by the representatives and not from the day of its ratification, that there is no essential difference between such treaties as want and such as do not want ratification.

[Footnote 869: See, for instance, Ullmann, § 78; Jellinek, p. 55; Nippold, p. 123; Wegmann, p. 11.]

[Footnote 870: The matter is very ably discussed by Rivier, II. pp 74-76.]

[Sidenote: Rationale for the Institution of Ratification.]

§ 511. The rationale for the institution of ratification is another argument for the contention that the conclusion of the treaty by the representatives is to be distinguished from the confirmation given by the respective States through ratification. The reason is that States want to have an opportunity of re-examining not the single stipulations, but the whole effect of the treaty upon their interests. These interests may be of various kinds. They may undergo a change immediately after the signing of the treaty by the representatives. They may appear to public opinion in a different light from that in which they appear to the Governments, so that the latter want to reconsider the matter. Another reason is that treaties on many important matters are, according to the Constitutional Law of most States, not valid without some kind of consent of Parliaments. Governments must therefore have an opportunity of withdrawing from a treaty in case Parliaments refuse their recognition. These two reasons have made, and still make, the institution of ratification a necessity for International Law.

[Sidenote: Ratification regularly, but not absolutely, necessary.]

§ 512. But ratification, although necessary in principle, is not always essential. Although it is now a universally recognised customary rule of International Law that treaties are regularly in need of ratification, even if the latter was not expressly stipulated, there are exceptions to the rule. For treaties concluded by such State functionaries[871] as have within certain narrow limits, _ipso facto_ by their office, the power to exercise the treaty-making competence of their State do not want ratification, but are binding at once when they are concluded, provided the respective functionaries have not exceeded their powers. Further, treaties concluded by heads of States in person do not want ratification provided that they do not concern matters in regard to which constitutional restrictions[872] are imposed upon heads of States. And, lastly, it may happen that the contracting parties stipulate expressly, for the sake of a speedy execution of a treaty, that it shall be binding at once without ratifications being necessary. Thus, the Treaty of London of July 15, 1840, between Great Britain, Austria, Russia, Prussia, and Turkey concerning the pacification of the Turko-Egyptian conflict was accompanied by a secret protocol,[873] signed by the representatives of the parties, according to which the treaty was at once, without being ratified, to be executed. For the Powers were, on account of the victories of Mehemet Ali, very anxious to settle the conflict as quickly as possible. But it must be emphasised that renunciation of ratification is valid only if given by representatives duly authorised to make such renunciation. If the representatives have not received a special authorisation to dispense with ratification, then renunciation is not binding upon the States which they represent.

[Footnote 871: See above, § 496.]

[Footnote 872: See above, § 497.]

[Footnote 873: See Martens, N.R.G. I. p. 163.]

[Sidenote: Length of Time for Ratification.]

§ 513. No rule of International Law prescribes the length of time within which ratification must be given or refused. If such length of time is not specially stipulated by the contracting parties in the very treaty, a reasonable length of time must be presumed as mutually granted. Without doubt, a refusal to ratify must be presumed from the lapse of an unreasonable time without ratification having been made. In most cases, however, treaties which are in need of ratification contain nowadays a clause stipulating the reservation of ratification, and at the same time a length of time within which ratification should take place.

[Sidenote: Refusal of Ratification.]

§ 514. The question now requires attention whether ratification can be refused on just grounds only or according to discretion. Formerly[874] it was maintained that ratification could not be refused in case the representatives had not exceeded their powers or violated their secret instructions. But nowadays there is probably no publicist who maintains that a State is in any case _legally_[875] bound not to refuse ratification. Yet many insist that a State is, except for just reasons, in principle _morally_ bound not to refuse ratification. I cannot see, however, the value of such a moral in contradistinction to a legal duty. The fact upon which everybody agrees is that International Law does in no case impose a duty of ratification upon a contracting party. A State refusing ratification will always have reasons for such line of action which appear just to itself, although they may be unjust in the eyes of others. In practice, ratification is given or withheld at discretion. But in the majority of cases, of course, ratification is not refused. A State which often and apparently wantonly refused ratification of treaties would lose all credit in international negotiations and would soon feel the consequences. On the other hand, it is impossible to lay down hard-and-fast rules respecting just and unjust causes of refusal of ratification. The interests at stake are so various, and the circumstances which must influence a State are so imponderable, that it must be left to the discretion of every State to decide the question for itself. Numerous examples of important treaties which have not found ratification can be given. It suffices to mention the Hay-Pauncefote Treaty between the United States and Great Britain regarding the proposed Nicaragua Canal, signed on February 5, 1900, which was ratified with modifications by the Senate of the United States, this being equivalent to refusal of ratification. (See below, § 517.)

[Footnote 874: See Grotius, II. c. 11, § 12; Bynkershoek, "Quaestiones juris publici," II. 7; Wicquefort, "L'Ambassadeur," II. 15; Vattel, II. § 156; G. F. von Martens, § 48.]

[Footnote 875: This must be maintained in spite of Wegmann's (p. 32) assertion that a customary rule of the Law of Nations has to be recognised that ratification can not regularly be refused. The hair-splitting scholasticism of this writer is illustrated by a comparison between his customary rule for the non-refusal of ratification as arbitrarily constructed by himself, and the opinion which he (p. 11) emphatically defends that a treaty is concluded only by ratification.]

[Sidenote: Form of Ratification.]

§ 515. No rule of International Law exists which prescribes a necessary form of ratification. Ratification can therefore be given as well tacitly as expressly. Tacit ratification takes place when a State begins the execution of a treaty without expressly ratifying it. Further, ratification may be given orally or in writing, although I am not aware of any case in which ratification was given orally. For it is usual for ratification to take the form of a document duly signed by the heads of the States concerned and their Secretaries for Foreign Affairs. It is usual to draft as many documents as there are parties to the convention, and to exchange these documents between the parties. Sometimes the whole of the treaty is recited _verbatim_ in the ratifying documents, but sometimes only the title, preamble, and date of the treaty, and the names of the signatory representatives are cited. As ratification is the necessary confirmation only of an already existing treaty, the essential requirement in a ratifying document is merely that it refer clearly and unmistakably to the treaty to be ratified. The citation of title, preamble, date, and names of the representatives is, therefore, quite sufficient to satisfy that requirement, and I cannot agree with those writers who maintain that the whole of the treaty ought to be recited _verbatim_.

[Sidenote: Ratification by whom effected.]

§ 516. Ratification is effected by those organs which exercise the treaty-making power of the States. These organs are regularly the heads of the States, but they can, according to the Municipal Law of some States, delegate the power of ratification for some parts of the globe to other representatives. Thus, the Viceroy of India is empowered to ratify treaties with certain Asiatic monarchs in the name of the King of Great Britain and Emperor of India, and the Governor-General of Turkestan has a similar power for the Emperor of Russia.

In case the head of a State ratifies a treaty, although the necessary constitutional requirements have not been previously fulfilled, as, for instance, in the case in which a treaty has not received the necessary approval from the Parliament of the said State, the question arises whether such ratification is valid or null and void. Many writers[876] maintain that such ratification is nevertheless valid. But this opinion is not correct, because it is clearly evident that in such a case the head of the State has exceeded his powers, and that, therefore, the State concerned cannot be held to be bound by the treaty.[877] The conflict between the United States and France in 1831, frequently quoted in support of the opinion that such ratification is valid, is not in point. It is true that the United States insisted on payment of the indemnity stipulated by a treaty which had been ratified by the King of France without having received the necessary approval of the French Parliament, but the United States did not maintain that the ratification was valid; she insisted upon payment because the French Government had admitted that such indemnity was due to her.[878]

[Footnote 876: See, for instance, Martens, § 107, and Rivier, II. p. 85.]

[Footnote 877: See above, § 497, and Nippold, p. 147.]

[Footnote 878: See Wharton, II. § 131A, p. 20.]

[Sidenote: Ratification can not be partial and conditional.]

§ 517. It follows from the nature of ratification as a necessary confirmation of a treaty already concluded that ratification must be either given or refused, no conditional or partial ratification being possible. That occasionally a State tries to modify a treaty in ratifying it cannot be denied, yet conditional ratification is no ratification at all, but equivalent to refusal of ratification. Nothing, of course, prevents the other contracting party from entering into fresh negotiations in regard to such modifications; but it must be emphasised that such negotiations are negotiations for a new treaty,[879] the old treaty having become null and void through its conditional ratification. On the other hand, no obligation exists for such party to enter into fresh negotiations, it being a fact that conditional ratification is identical with refusal of ratification, whereby the treaty falls to the ground. Thus, for instance, when the United States Senate on December 20, 1900, in consenting[880] to the ratification of the Hay-Pauncefote Treaty as regards the Nicaragua Canal, added modifying amendments, Great Britain did not accept the amendments and considered the treaty fallen to the ground.

[Footnote 879: This is the correct explanation of the practice on the part of States, which sometimes prevails, of acquiescing, after some hesitation, in alterations proposed by a party to a treaty in ratifying it; see examples in Pradier-Fodéré, II. No. 1104, and Calvo, III. § 1630.]

[Footnote 880: It is of importance to emphasise that the United States' Senate, in proposing an amendment to a treaty before its ratification, does not, strictly speaking, ratify such treaty conditionally, since it is the President, and not the Senate, who possesses the power of granting or refusing ratification; see Willoughby, "The Constitutional Law of the United States" (1910), I. p. 462, note 14. The President, however, according to article 2 of the Constitution, cannot grant ratification without the consent of the Senate, and the proposal of an amendment to a treaty on the part of the Senate, therefore, comprises, indirectly, the proposal of a new treaty.]

Quite particular is the case of a treaty to which a greater number of States are parties and which is only partially ratified by one of the contracting parties. Thus France, in ratifying the General Act of the Brussels Anti-Slavery Conference of July 2, 1890, excepted from ratification articles 21 to 23 and 42 to 61, and the Powers have acquiesced in this partial ratification, so that France is not bound by these twenty-three articles.[881]

[Footnote 881: See Martens, N.R.G. 2nd Ser. XXII. (1897), p. 260.]

But it must be emphasised that ratification is only then partial and conditional if one or more stipulations of the treaty which has been signed without reservation are exempted from ratification, or if an amending clause is added to the treaty during the process of ratification. It is therefore quite legitimate for a party who has signed a treaty with certain reservations as regards certain articles[882] to ratify the approved articles only, and it would be incorrect to speak in this case of a partial ratification.

[Footnote 882: See below, § 519.]

Again, it is quite legitimate--and one ought not in that case to speak of conditional ratification--for a contracting party who wants to secure the interpretation of certain terms and clauses of a treaty to grant ratification with the understanding only that such terms and clauses should be interpreted in such and such a way. Thus when, in 1911, opposition arose in Great Britain to the ratification of the Declaration of London on account of the fact that the meaning of certain terms was ambiguous and that the wording of certain clauses did not agree with the interpretation given to them by the Report of the Drafting Committee, the British Government declared that they would only ratify with the understanding that the interpretation contained in the Report should be considered as binding and that the ambiguous terms concerned should have a determinate meaning. In such cases ratification does not introduce an amendment or an alteration, but only fixes the meaning of otherwise doubtful terms and clauses of the treaty.

[Sidenote: Effect of Ratification.]

§ 518. The effect of ratification is the binding force of the treaty. But the question arises whether the effect of ratification is retroactive, so that a treaty appears to be binding from the date when it is duly signed by the representatives. No unanimity exists among publicists as regards this question. As in all important cases treaties themselves stipulate the date from which they are to take effect, the question is chiefly of theoretical interest. The fact that ratification imparts the binding force to a treaty seems to indicate that ratification has regularly no retroactive effect. Different, however, is of course the case in which the contrary is expressly stipulated in the very treaty, and, again, the case when a treaty contains such stipulations as shall at once be executed, without waiting for the necessary ratification. Be this as it may, ratification makes a treaty binding only if the original consent was not given in error or under a delusion.[883] If, however, the ratifying State discovers such error or delusion and ratifies the treaty nevertheless, such ratification makes the treaty binding. And the same is valid as regards a ratification given to a treaty although the ratifying State knows that its representatives have exceeded their powers by concluding the treaty.

[Footnote 883: See above, § 500.]

VI

EFFECT OF TREATIES

Hall, § 114--Lawrence, § 134--Halleck, I. pp. 279-281--Taylor, §§
370-373--Wharton, II. § 137--Wheaton, § 266--Bluntschli, §§
415-416--Hartmann, § 49--Heffter, § 94--Bonfils, Nos.
845-848--Despagnet, Nos. 447-448--Pradier-Fodéré, II. Nos.
1151-1155--Mérignhac, II. pp. 667-672--Rivier, II. pp.
119-122--Calvo, III. §§ 1643-1648--Fiore, II. Nos. 1008-1009, and
Code, Nos. 768-778--Martens, I. §§ 65 and 114--Nippold, op. cit.
pp. 151-160.

[Sidenote: Effect of Treaties upon Contracting Parties.]

§ 519. By a treaty the contracting parties in the first place are concerned. The effect of the treaty upon them is that they are bound by its stipulations, and that they must execute it in all its parts. No distinction should be made between more and less important parts of a treaty as regards its execution. Whatever may be the importance or the insignificance of a part of a treaty, it must be executed with good faith, for the binding force of a treaty covers equally all its parts and stipulations. If, however, a party to a treaty concluded between more than two parties signs it with a reservation as regards certain articles, such party is not bound by these articles, although it ratifies[884] the treaty.

[Footnote 884: See above, § 518.]

[Sidenote: Effect of Treaties upon the Subjects of the Parties.]

§ 520. It must be specially observed that the binding force of a treaty concerns the contracting States only, and not their subjects. As International Law is a law between States only and exclusively, treaties can have effect upon States and can bind States only and exclusively. If treaties contain stipulations with regard to rights and duties of the contracting States' subjects,[885] courts, officials, and the like, these States have to take such steps as are necessary, according to their Municipal Law, to make these stipulations binding upon their subjects, courts, officials, and the like. It may be that according to the Municipal Laws of some countries the official publication of a treaty concluded by the Government is sufficient for this purpose, but in other countries other steps are necessary, such as, for example, special statutes to be passed by the respective Parliaments.[886]

[Footnote 885: See above, § 289.]

[Footnote 886: The distinction between International and Municipal Law as discussed above, §§ 20-25, is the basis from which the question must be decided whether international treaties have a direct effect upon the officials and subjects of the contracting parties.]

[Sidenote: Effect of Changes in Government upon Treaties.]

§ 521. As treaties are binding upon the contracting States, changes in the government or even in the form of government of one of the parties can as a rule have no influence whatever upon the binding force of treaties. Thus, for instance, a treaty of alliance concluded by a State with constitutional government remains valid, although the Ministry may change. And no head of a State can shirk the obligations of a treaty concluded by his State under the government of his predecessor. Even when a monarchy turns into a republic, or _vice versa_, treaty obligations regularly remain the same. For all such changes and alterations, important as they may be, do not alter the person of the State which concluded the treaty. If, however, a treaty stipulation essentially presupposes a certain form of government, then a change from such form makes such stipulation void, because its execution has become impossible.[887]

[Footnote 887: See below, § 542. Not to be confounded with the effect of changes in government is the effect of a change in international status upon treaties, as, for instance, if a hitherto full-sovereign State becomes half- or part-Sovereign, or _vice versa_, or if a State merges entirely into another, and the like. This is a case of succession of States which has been discussed above, §§ 82-84; see also below, § 548.]

[Sidenote: Effect of Treaties upon third States.]

§ 522. According to the principle _pacta tertiis nec nocent nec prosunt_, a treaty concerns the contracting States only; neither rights nor duties, as a rule, arise under a treaty for third States which are not parties to the treaty. But sometimes treaties have indeed an effect upon third States. Such an effect is always produced when a treaty touches previous treaty rights of third States. Thus, for instance, a commercial treaty conceding more favourable conditions than hitherto have been conceded by the parties thereto has an effect upon all such third States as have previously concluded commercial treaties containing the so-called _most-favoured-nation clause_[888] with one of the contracting parties.

[Footnote 888: See below, § 580, but note the American interpretation of this clause.]

The question arises whether in exceptional cases third States can acquire rights under such treaties as were specially concluded for the purpose of creating such rights not only for the contracting parties but also for third States. Thus, the Hay-Pauncefote Treaty between Great Britain and the United States of 1901, and the Hay-Varilla Treaty between the United States and Panama of 1903, stipulate that the Panama Canal to be built shall be open to vessels of commerce and of war of all nations, although Great Britain, the United States, and Panama only are parties.[889] Thus, further, article 5 of the Boundary Treaty of Buenos Ayres of September 15, 1881, stipulates that the Straits of Magellan shall be open to vessels of all nations, although Argentina and Chili only are parties. Again, the Treaty of Paris, signed on March 30, 1856, and annexed to the Peace Treaty of Paris of 1856, stipulates that Russia shall not fortify the Aland[890] Islands; although this stipulation was made in the interest of Sweden, only Great Britain, France, and Russia are parties. I believe that the question must be answered in the negative, and nothing prevents the contracting parties from altering such a treaty without the consent of third States, provided the latter have not in the meantime acquired such rights through the unanimous tacit consent of all concerned.

[Footnote 889: See above, § 184.]

[Footnote 890: See above, § 205, p. 277, note 2.]

It must be emphasised that a treaty between two States can never invalidate a stipulation previously created by a treaty between one of the contracting parties and a third State, unless the latter expressly consents. If, for instance, two States have entered into an alliance and one of them afterwards concludes a treaty with a third State, according to which all conflicts without exception shall be settled by arbitration, the previous treaty of alliance remains valid even in the case of war breaking out between the third State and the other party to the alliance.[891] Therefore, when in 1911 Great Britain contemplated entering, with the United States of America, into a treaty of general arbitration according to which all differences should be decided by arbitration, she notified Japan of her intention, on account of the existing treaty of alliance, and Japan consented to substitute for the old treaty a new treaty of alliance,[892] article 4 of which stipulates that the alliance shall never concern a war with a third Power with whom one of the allies may have concluded a treaty of general arbitration.

[Footnote 891: See below, § 573.]

[Footnote 892: See below, § 569.]

VII

MEANS OF SECURING PERFORMANCE OF TREATIES

Vattel, II. §§ 235-261--Hall, § 115--Lawrence, § 134--Phillimore,
II. §§ 54-63A--Bluntschli, §§ 425-441--Heffter, §§ 96-99--Geffcken
in Holtzendorff, III. pp. 85-90--Ullmann, § 83--Bonfils, Nos.
838-844--Despagnet, Nos. 451-452--Pradier-Fodéré, II. Nos.
1156-1169--Rivier, II. pp. 94-97--Nys, III. pp. 36-41--Calvo, III.
§§ 1638-1642--Fiore, II. Nos. 1018-1019, and Code, Nos.
784-791--Martens, I. § 115--Nippold, op. cit. pp. 212-227.

[Sidenote: What means have been in use.]

§ 523. As there is no international institution which could enforce the performance of treaties, and as history teaches that treaties have frequently been broken, various means of securing performance of treaties have been made use of. The more important of these means are oaths, hostages, pledges, occupation of territory, guarantee. Nowadays these means, which are for the most part obsolete, have no longer great importance on account of the gratifying fact that all States are now much more conscientious and faithful as regards their treaty obligations than in former times.

[Sidenote: Oaths.]

§ 524. Oaths are a very old means of securing the performance of treaties, which was constantly made use of not only in antiquity and the Middle Ages, but also in modern times. For in the sixteenth and seventeenth centuries all important treaties were still secured by oaths. During the eighteenth century, however, the custom of securing treaties by oaths gradually died out, the last example being the treaty of alliance between France and Switzerland in 1777, which was solemnly confirmed by the oaths of both parties in the Cathedral at Solothurn. The employment of oaths for securing treaties was of great value in the times of absolutism, when little difference used to be made between the State and its monarch. The more the distinction grew into existence between the State as the subject of International Law on the one hand, and the monarch as the temporary chief organ of the State on the other hand, the more such oaths fell into disuse. For an oath can exercise its force on the individual only who takes it, and not on the State for which it is taken.

[Sidenote: Hostages.]

§ 525. Hostages are as old a means of securing treaties as oaths, but they have likewise, for ordinary purposes[893] at least, become obsolete, because they have practically no value at all. The last case of a treaty secured by hostages is the Peace of Aix-la-Chapelle in 1748, in which hostages were stipulated to be sent by England to France for the purpose of securing the restitution of Cape Breton Island to the latter. The hostages sent were Lords Sussex and Cathcart, who remained in France till July 1749.

[Footnote 893: Concerning hostages nowadays taken in time of war, see below, vol. II. §§ 258-259.]

[Sidenote: Pledge.]

§ 526. The pledging of movable property by one of the contracting parties to the other for the purpose of securing the performance of a treaty is possible, but has not frequently occurred. Thus, Poland is said to have pledged her crown jewels once to Prussia.[894] The pledging of movables is nowadays quite obsolete, although it might on occasion be revived.

[Footnote 894: See Phillimore, II. § 55.]

[Sidenote: Occupation of Territory.]

§ 527. Occupation of territory, such as a fort or even a whole province, as a means of securing the performance of a treaty, has frequently been made use of with regard to the payment of large sums of money due to a State under a treaty. Nowadays such occupation is only resorted to in connection with treaties of peace stipulating the payment of a war indemnity. Thus, the preliminary peace treaty of Versailles in 1871 stipulated that Germany should have the right to keep certain parts of France under military occupation until the final payment of the war indemnity of five milliards of francs.

[Sidenote: Guarantee.]

§ 528. The best means of securing treaties, and one which is still in use generally, is the guarantee of such other States as are not directly affected by the treaty. Such guarantee is a kind of accession[895] to the guaranteed treaty, and a treaty in itself--namely, the promise of the guarantor eventually to do what is in his power to compel the contracting party or parties to execute the treaty.[896] Guarantee of a treaty is a species only of guarantee in general, which will be discussed below, §§ 574-576_a_.

[Footnote 895: See below, § 532.]