TREATIES
81. +Definition.+
82. +Other Forms of International Agreements.+
(_a_) Protocol.
(_b_) Declarations.
(_c_) Memoranda.
(_d_) Letters, notes.
(_e_) Sponsions.
(_f_) Cartels.
83. +The Negotiation of Treaties.+
(_a_) The agreement.
(_b_) The draft.
(_c_) Signs and seals.
(_d_) Ratification.
84. +The Validity of Treaties.+
(_a_) International capacity.
(_b_) Due authorization.
(_c_) Freedom of consent.
(_d_) Conformity to law.
85. +The Classification of Treaties.+
86. +The Interpretation of Treaties.+
87. +The Termination of Treaties.+
§ 81. Definition
A treaty is an agreement, generally in writing, and always in conformity
with law, between two or more states. A treaty may establish, modify, or
terminate obligations. These obligations must be such as are legally
within the capacity of the states concerned to negotiate. A treaty runs
between states only. As distinguished from other forms of international
agreement, a treaty is usually concerned with matters of high state
importance, with a considerable number of questions, or with matters
involving several states.
Separate articles are clauses attached to a treaty after ratification,
and to be interpreted with reference to the whole.
§ 82. Other Forms of International Agreements
Besides the treaty, which is the most formal international agreement,
there may be various other methods of expressing the terms of
international agreements. The importance of the matter contained in the
various documents is not necessarily in proportion to their formality.
The terms "convention" and "treaty" are very generally used
interchangeably, though strictly the scope of a convention is less
broad, and usually applies to some specific subject, as to the
regulation of commerce, navigation, consular service, postal service,
naturalization, extradition, boundaries, etc. The terms below are often
used loosely in practice.
(_a_) =A protocol=, or _procès verbal_, is usually in the form of
official minutes, giving the conclusions of an international conference
and signed at the end of each session by the negotiators. This does not
require ratification by the sovereign as in the case of treaties and
conventions, though it is equally binding upon the good faith of the
states concerned. Ordinarily the persons signing the protocol have been
duly authorized by their respective states in advance. The term
"protocol" is sometimes applied to the preliminary draft of an agreement
between two or more states as to the agreements entered into by
negotiators in preparation of a more formal document, such as a treaty
or convention.[270]
(_b_) =Declarations= are usually documents containing reciprocal
agreements of states, as in granting equal privileges in matters of
trade-marks, copyrights, etc., to the citizens of each state. The term
is used for the documents, (1) which outline the policy or course of
conduct which one or more states propose to pursue under certain
circumstances, (2) which enunciate the principles adopted, or (3) which
set forth the reasons justifying a given act.
(_c_) The terms "=memoranda=" and "=memoires=" are used to indicate the
documents in which the principles entering an international discussion
are set forth, together with the probable conclusions. These documents
may be considered by the proper authorities, _e.g._ may be sent to the
foreign secretaries of the states concerned, and _contre-memoires_ may
be submitted. These documents are generally unsigned.
(_d_) Besides the above, there may be in diplomatic negotiations
=letters= between the agents, in which the use of the first or second
person is common, and =notes=, which are more formal and usually in the
third person. These letters, if made public, may have much force, as in
the case of the collective note of the powers commonly called the
"Andrassy note," by which the Powers of Europe in 1875 held that in
Turkey "reform must be adopted to put a stop to a disastrous and bloody
contest."
(_e_) When representatives of states not properly commissioned for the
purpose, or exceeding the limits of their authority, enter into
agreements, their acts are called treaties =sub spe rati= or
=sponsions=. Such agreements require ratification by the state. This
ratification may be explicit in the usual form, or tacit, when the state
governs its action by the agreements.
(_f_) Of the nature of treaties are =cartels=, which are agreements made
between belligerents, usually mutual, regulating intercourse during war.
These may apply to exchange of prisoners, postal and telegraphic
communications, customs, and similar subjects. These documents are less
formal than conventions, usually negotiated by agents specially
authorized, and do not require ratification, though fully obligatory
upon the states parties to the agreement.[271] Here also may be named
the suspension of arms, which the chief of an army or navy may enter
into as an agreement for the regulation or cessation of hostilities
within a limited area for a short time and for military ends. When such
agreements are for the cessation of hostilities in general, or for a
considerable time, they receive the name of armistices or truces. These
are sometimes called conventions with the enemy. These last do not imply
international negotiation.
+Note.+ Agreements concluded between states and private individuals or
corporations have not an international character, and do not come
within the domain of international law. Such agreements may include:--
1. Contracts with individuals or corporations for a loan,
colonization, developing a country, etc.
2. Agreements between princes in regard to succession, etc.
3. Concordats signed by the Pope as such and not as a secular prince.
§ 83. The Negotiation of Treaties
The negotiation of treaties includes, (_a_) the international agreement
upon the terms, (_b_) the drafting of the terms, (_c_) the signing, and
(_d_) the ratification.
(_a_) The first step preparatory to =the agreement= is the submission of
proof that the parties entering into the negotiations are duly qualified
and authorized. As the sovereigns themselves do not now in person
negotiate treaties,[272] it is customary for those who are to conduct
such negotiations to be authorized by a commission generally known as
_full power_. The negotiators first present and exchange their _full
powers_. They may be somewhat limited in their action by
instructions.[273] Often it is the diplomatic representatives who
negotiate with the proper authorities of the state to which they are
accredited. The negotiations are sometimes written, sometimes verbal,
and are preserved in the _procès verbaux_. In case the negotiations are
for any reason discontinued before the drafting of the terms of the
agreement, it is customary to state the circumstances leading to this
act in a protocol signed by all the negotiators. Sometimes this takes
the name of a manifest or of a declaration.
(_b_) The =draft= of the treaty is usually, though not necessarily, of a
uniform style. Many early treaties opened with an invocation to Deity.
This is not the custom followed by the United States, however. The
general form is to specify the sovereigns of the contracting states, the
purpose of the agreement, and the names of the negotiators, with their
powers. This constitutes the preamble. Then follow in separate articles
the agreements entered into forming the body of the treaty, the
conditions of ratification, the number of copies, the place of the
negotiation, the signatures and seals of the negotiators. Sometimes
other articles or declarations[274] are annexed or added, with a view to
defining, explaining, or limiting words or clauses used in the body of
the treaty. Ordinarily the same formula is followed as in the portion of
the main treaty subsequent to the body in setting forth conditions of
ratification, etc.
The order of the states parties to the treaty, and of the agents
negotiating it, varies in the different copies. The copy transmitted to
a given state party to the treaty contains the name of that state and of
its agents in the first place, so far as possible. Each negotiator signs
in the first place the copy of the treaty to be transmitted to his own
state, and if the agents of more than one other state sign the treaty,
they sign in alphabetical order of their states, in the original
language of the convention. This is known as the principle of the
alternat.
The following is the beginning and end of the Treaty of Washington
relative to the Alabama Claims, etc., including the President's
proclamation thereof:[275]--
"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
"+A Proclamation+
"Whereas a treaty, between the United States of America and her
Majesty the Queen of the United Kingdom of Great Britain and Ireland,
concerning the settlement of all causes of difference between the two
countries, was concluded and signed at Washington by the high
commissioners and plenipotentiaries of the respective governments on
the eighth day of May last; which treaty is word for word, as
follows:--
"'The United States of America and her Britannic Majesty, being
desirous to provide for an amicable settlement of all causes of
difference between the two countries, have for that purpose appointed
their respective plenipotentiaries, that is to say: The President of
the United States has appointed, on the part of the United States, as
Commissioners in a Joint High Commission and Plenipotentiaries [here
follow the names]; and her Britannic Majesty, on her part, has
appointed as her High Commissioners and Plenipotentiaries [here follow
the names].
"'And the said plenipotentiaries, after having exchanged their full
powers, which were found to be in due and proper form, have agreed to
and concluded the following articles:--
[Here follow 42 articles.]
"'+Article+ XLIII
"'The present treaty shall be duly ratified by the President of the
United States of America, by and with the advice and consent of the
Senate thereof, and by her Britannic Majesty; and the ratifications
shall be exchanged either at Washington or at London within six months
from the date hereof, or earlier if possible.
"'In faith whereof, we, the respective plenipotentiaries, have signed
this treaty and have hereunto affixed our seals.
"'Done in duplicate at Washington the eighth day of May, in the year
of our Lord one thousand eight hundred and seventy-one.'
[Here follow the seals and signatures.]
"And whereas the said treaty has been duly ratified on both parts, and
the respective ratifications of the same were exchanged in the city of
London, on the seventeenth day of June, 1871, by Robert C. Schenck,
Envoy Extraordinary and Minister Plenipotentiary of the United States,
and Earl Granville, her Majesty's Principal Secretary of State for
Foreign Affairs, on the part of their respective governments:
"Now, therefore, be it known that I, Ulysses S. Grant, President of
the United States of America, have caused the said treaty to be made
public, to the end that the same, and every clause and article
thereof, may be observed and fulfilled with good faith by the United
States and the citizens thereof.
"In witness whereof, I have hereunto set my hand and caused the seal
of the United States to be affixed.
"Done at the City of Washington this fourth day of July, in the year
of our Lord one thousand eight hundred and seventy-one, and of the
Independence of the United States the ninety-sixth.
"+U. S. Grant.+
"By the President:
"+Hamilton Fish+, _Secretary of State_."
There is no diplomatic language, though various languages have from time
to time been more commonly used. In early treaties and diplomatic works
Latin was very common, and it was used so late as the Treaty of Utrecht
in 1713. Spanish prevailed for some years toward the end of the
fifteenth century. From the days of Louis XIV., when the French
particularly became the court language, it has been widely used in
congresses and treaties. Frequently, when used, there have been inserted
in the treaties provisions that the use of French should not be taken as
a precedent. The French language is, however, commonly employed in
congresses in which a considerable number of different languages are
represented, and the original forms of the treaties are drawn in French.
During the nineteenth century this has been very common, as in the acts
of the Congress of Vienna, 1815; Aix-la-Chapelle, 1818; Paris, 1856;
Berlin, 1878 and 1885; Brussels, 1890. Even other states of Europe, in
making treaties with Asiatic and African states, have agreed upon French
as the authoritative text for both states. In some of the treaties of
the United States and the Ottoman Porte, the French language is used.
It is customary, when the treaty is between states having different
official languages, to arrange for versions in both languages in
parallel columns, placing at the left the version in the language of the
state to which the treaty is to be transmitted.
(_c_) In signing the treaty each representative =signs and seals= in the
first place the copy to be sent to his own state. The order of the other
signatures may be by lot or in the alphabetical order of the states
represented. The signing of the treaty indicates the completion of the
agreement between those commissioned in behalf of the states concerned.
This does not irrevocably bind the states which the signers represent,
though the fact that its representative has signed a treaty is a reason
for ratification which cannot be set aside except for most weighty
cause.
(_d_) =Ratification= is the acceptance by the state of the terms of the
treaty which has been agreed upon by its legally qualified agent. The
exchange of ratifications is usually provided for in a special clause,
_e.g._ "The present treaty shall be ratified, and the ratifications
exchanged at ... as speedily as possible." By this clause the state
reserves to itself the right to examine the conditions before entering
into the agreement. At the present time it is held that even when not
expressed, the "reserve clause" is understood.
The ratification conforms to the domestic laws of each state. Ordinarily
it is in the form of an act duly signed and sealed by the head of the
state. In the act of ratification the text of the treaty may be
reproduced entire, or merely the title, preamble, the first and last
articles of the body of the treaty, the concluding clauses following the
last article, the date, and the names of the plenipotentiaries.
In many states prior approval of the treaty by some legislative body is
necessary. In the United States the Constitution provides that the
President "shall have power by and with the advice and consent of the
Senate, to make treaties, provided two-thirds of the Senators present
concur."[276] In the United States it has frequently happened that the
Senate has not approved of treaties, and they have therefore failed of
ratification. This was the fate of the Fishery Treaty with Great Britain
in 1888.
The ratification may be refused for sufficient reason. Each state must
decide for itself what is sufficient reason. The following have been
offered at various times as valid reasons for refusal of ratification:
(1) error in points essential to the agreement, (2) the introduction of
matters of which the instructions of the plenipotentiaries do not give
them power to treat, (3) clauses contrary to the public law of either of
the states, (4) a change in the circumstances making the fulfillment of
the stipulations unreasonable, (5) the introduction of conditions
impossible of fulfillment, (6) the failure to meet the approval of the
political authority whose approval is necessary to give the treaty
effect, (7) the lack of proper credentials on the part of the
negotiators or the lack of freedom in negotiating.
The exchange of ratifications is usually a solemn, _i.e._ highly formal,
ceremony by which parties to the treaty or convention guarantee to each
other the execution of its terms. As many copies of the act of
ratification are prepared by each state as there are state parties to
the treaty. When the representatives of the states assemble for the
exchange of ratifications, they submit them to each other. These are
carefully compared, and if found in correct form, they make the exchange
and draw up a _procès verbal_ of the fact, making as many copies of the
_procès verbal_ as there are parties to the treaty. At this time also a
date for putting into operation the provisions of the treaty may be
fixed. Sometimes clauses explanatory of words, phrases, etc., in the
body of the treaty are agreed upon. Such action usually takes the form
of a special _procès verbal_ or protocol.
Unless there is a stipulation as to the time when a treaty becomes
effective, it is binding upon the signatory states from the date of
signing, provided it is subsequently ratified.
A state may assume a more or less close relation to the agreements
contained in treaties made by other states, by measures less formal than
ratification. These measures are commonly classed as acts of, (1)
_approbation_, by which a state without becoming in any way a party to
the treaty assumes a favorable attitude toward its provisions, (2)
_adhesion_, by which a state announces its intention to abide by the
principles of a given treaty without becoming party to it, and (3)
_accession_, by which a state becomes a party to a treaty which has
already been agreed upon by other states.
+Note.+ After the completion of the negotiation it is customary to
promulgate and publish the treaty or convention. Both these acts are
matters of local rather than international law. The _promulgation_ is
the announcement by the chief of the state that the treaty or
convention has been made, and the _publication_ is the official
announcement of the contents of the treaty or convention. See p. 204.
§ 84. Validity of Treaties
Four conditions are very generally recognized as essential to the
validity of a treaty.
(_a_) The parties to the treaty must have the =international capacity=
to contract, _i.e._ ordinarily they must be independent states.
(_b_) The agents acting for the state must be =duly authorized=, _i.e._
the plenipotentiaries must act within their powers.
(_c_) There must be =freedom of consent= in the agreements between the
states. This does not imply that force, as by war, reprisals, or
otherwise, may not be used in bringing about a condition of affairs
which may lead a state, without parting with its independence, to make
such sacrifices as may be necessary to put an end thereto. No constraint
can be put upon the negotiators of the treaty by threats of personal
violence, or in any way to prohibit their free action, without
invalidating their acts. There is no freedom of consent when the
agreement is reached through fraud of either party, and treaties so
obtained are not valid.
(_d_) The treaties must be in =conformity to law=, as embodied in the
generally recognized principles of international law and the established
usage of states. States could not by treaty appropriate the open sea,
protect the slave trade, partition other states unless as a measure of
self-protection, deprive subjects of essential rights of humanity, or
enter into other agreements that could not be internationally
obligatory.
§ 85. Classification of Treaties
Treaties have been variously classified, but the classifications serve
no great purpose. The most common classification is clearly set forth by
Calvo. As regards form, treaties may be, (1) transitory, or (2)
permanent or perpetual; as regards nature, (1) personal, relating to the
sovereign, or (2) real, relating to things and not dependent on the
sovereign person; as regards effects, (1) equal or (2) unequal, or
according to other effects, simple or conditional, definitive or
preliminary, principal or accessory, etc.; as regards objects, (1)
general or (2) special.[277] In a narrower sense treaties may be divided
into many classes, as political, economic, guarantee, surety,
neutrality, alliance, friendship, boundary, cession, exchange,
jurisdiction, extradition, commerce, navigation, peace, etc., and
conventions relating to property of various kinds, including literary
and artistic, to post and telegraph, etc. Most of these classes are
sufficiently described by their titles. The nature of some of the
classes is not fully indicated in the title.
A treaty of guarantee is an engagement by which a state agrees to secure
another in the possession of certain specified rights, as in the
exercise of a certain form of government, in the free exercise of
authority within its dominions, in freedom from attack, in the free
navigation of specified rivers, in the exercise of neutrality, etc. In
1831 and 1839, by the Treaties of London, the independence and
neutrality of Belgium were guaranteed, and in the Treaty of 1832 the
affairs in Greece were adjusted under guarantee. The Treaty of Paris,
1856, guarantees "the independence and the integrity of the Ottoman
Empire." When the guaranteeing state is not only bound to use its best
efforts to secure the fulfillment of the treaty stipulations, but to
make good the conditions agreed upon in the treaty provided one of the
principals fails to meet its obligations, the treaty is not merely one
of guarantee, but also a treaty of surety. This happens in case of
loans more particularly.
Agreements of states to act together for specific or general objects
constitute treaties of alliance. The nature of these treaties of
alliance varies with the terms. They may be defensive, offensive, equal,
unequal, general, special, permanent, temporary, etc., or may combine
several of these characteristics.
§ 86. Interpretation of Treaties
Sometimes clauses interpreting treaties are discussed and adopted by the
states signing a treaty. These acts may take the form of notes,
protocols, declarations, etc. The dispatch of the French ambassador at
London, Aug. 9, 1870, to the foreign secretary interprets certain
clauses of the treaty guaranteeing the neutrality of Belgium. In cases
where no preliminary agreement in regard to interpretation is made,
there are certain general principles of interpretation which are
ordinarily accepted. Many treatises follow closely the chapters of
Grotius and Vattel upon this subject.[278]
The _rules usually accepted_ are: (1) Words of the treaty are to be
taken in the ordinary and reasonable sense as when elsewhere used under
similar conditions. (2) If the words have different meanings in the
different states, the treaty should so far as possible be construed so
as to accord with the meaning of the words in the states which accepted
the conditions. (3) In default of a plain meaning, the spirit of the
treaty or a reasonable meaning should prevail. (4) Unless the
fundamental rights of states are expressly the subject of the agreement,
these rights are not involved. (5) That which is clearly granted by the
treaty carries with it what is necessary for its realization.
In the _cases of conflicting clauses_ in a single treaty or conflicting
treaties, the general rules are: (1) Special clauses prevail against
general clauses; prohibitory against permissive, unless the prohibitory
is general and the permissive special; of two prohibitory clauses, the
one more distinctly mandatory prevails; of two similar obligatory
clauses the state in whose favor the obligation runs may choose which
shall be observed. (2) In case of conflict in treaties between the same
states the later prevails; in case a later treaty with a third state
conflicts with an earlier treaty with other states, the earlier treaty
prevails.[279]
"The most favored nation" clause is now common in treaties of commercial
nature. This clause ordinarily binds the state to grant to its co-signer
all the privileges similarly granted to all other states, and such as
shall be granted under subsequent treaties. When privileges are granted
by one state in exchange for privileges granted by another, as in a
reciprocal reduction in tariff duties, a third state can lay claim to
like reduction only upon fulfillment of like conditions. Under "the most
favored nation" clause, Art. VIII., of the Treaty of 1803, between
France and the United States, France claimed that its ships were
entitled to all the privileges granted to any other nation whether so
granted in return for special concessions or not. This position the
United States refused to accept, and by Article VII. of the Treaty of
1831 France renounced the claims.[280]
§ 87. Termination of Treaties
Treaties in general come to an end under the following conditions:--
(_a_) The complete fulfillment of all the treaty stipulations terminates
a treaty.
(_b_) The expiration of the limit of time for which the treaty agreement
was made puts an end to the treaty.
(_c_) A treaty may be terminated by express agreement of the parties to
it.
(_d_) When a treaty depends upon the execution of conditions contrary to
the principles of international law or morality or impossible of
performance, it is not effective.
(_e_) A state may renounce the advantages and rights secured under a
treaty, _e.g._ England renounced the protectorate of the Ionian Islands
in 1864, which she had held since 1815.
(_f_) A declaration of war may put an end to those treaties which have
regard only to conditions of peaceful relations, as treaties of
alliance, commerce, navigation, etc., and may suspend treaties which
have regard to permanent conditions, as treaties of cession,
boundaries, etc. The treaty of peace between China and Japan, May 8,
1895, Article 6, asserts that, "All treaties between Japan and China
having come to an end in consequence of the war, China engages,
immediately upon the exchange of ratifications of this act, to appoint
plenipotentiaries to conclude, with the Japanese plenipotentiaries, a
treaty of commerce and navigation, and a convention to regulate frontier
intercourse and trade." In the war between the United States and Spain
the royal decree issued by Spain, April 23, 1898, Article I., asserts
that "The state of war existing between Spain and the United States
terminates the treaty of peace and friendship of the 27th October, 1795,
the protocol of the 12th January, 1877, and all other agreements,
compacts, and conventions that have been in force up to the present
between the two countries." The declaration of war also gives special
effect to certain treaties and conventions, as to those in regard to
care of wounded, neutral commerce, etc.
(_g_) A treaty is voidable when, (1) it is concluded in excess of powers
of contracting parties, (2) when it is concluded because of stress of
force upon negotiators or because of fraud, (3) when the conditions
threaten the self-preservation of the state or its necessary attributes.
Hall gives as the test of voidability the following: "Neither party to a
contract can make its binding effect dependent at his will upon
conditions other than those contemplated at the moment when the contract
was entered into, and on the other hand a contract ceases to be binding
so soon as anything which formed an implied condition of its obligatory
force at the time of its conclusion is essentially altered."[281] The
condition _rebus sic stantibus_ is always implied.
(_h_) A treaty may be terminated by the simple act of denunciation when
this right of denunciation is specified in the treaty itself, or when
the treaty is of such a nature as to be voidable by an act of one of the
parties.