International Law. A Treatise Volume I Part 67

[Footnote 846: Thus by section 2 of the Declaration concerning Siam, Madagascar, and the New Hebrides, which is embodied in the Anglo-French Agreement of April 8, 1904, Great Britain withdrew the protest which she had raised against the introduction of the Customs tariff established at Madagascar after the annexation to France.]

[Footnote 847: See below, -- 539, concerning the withdrawal of Russia from article 59 of the Treaty of Berlin, 1878, stipulating the freedom of the port of Batoum.]

[Sidenote: Renunciation.]

-- 490. Renunciation is the deliberate abandonment of rights. It can be given _expressis verbis_ or tacitly. If, for instance, a State by occupation takes possession of an island which has previously been occupied by another State,[848] the latter tacitly renounces its rights by not protesting as soon as it receives knowledge of the fact.

Renunciation plays a prominent part in the amicable settlement of differences between States, either one or both parties frequently renouncing their claims for the purpose of coming to an agreement. But it must be specially observed that mere silence on the part of a State does not imply renunciation; this occurs only when a State remains silent, although a protest is necessary to preserve a claim.

[Footnote 848: See above, -- 247.]

CHAPTER II

TREATIES

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-Fodere, 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, "Staatsvertrage und Gesetze als Quellen des Volkerrechts" (1877)--Jellinek, "Die rechtliche Natur der Staatenvertrage" (1880)--Laghi, "Teoria dei trattati intern.a.z.ionali" (1882)--Buonamici, "Dei trattati intern.a.z.ionali"

(1888)--Nippold, "Der volkerrechtliche Vertrag" (1894)--Triepel, "Volkerrecht 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 cla.s.sification of the different kinds of treaties, for hitherto all attempts[850] at such cla.s.sification 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 cla.s.ses. For treaties may, on the one hand, be concluded for the purpose of confirming, defining, or abolis.h.i.+ng existing customary rules, and of establis.h.i.+ng 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 cla.s.sification 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] a.s.sert 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, "Staatenvertrage," p. 31; Nippold, -- 11.]

[Footnote 852: So Triepel, "Volkerrecht 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 Munic.i.p.al Law, since International Law is a weaker law, and for this reason less enforceable, than Munic.i.p.al 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-Fodere, 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 const.i.tutions 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 va.s.sal how far the latter possesses the competence to enter into treaties with foreign States; ordinarily a va.s.sal can conclude treaties concerning such matters as railways, extradition, commerce, and the like.

[Footnote 855: According to articles 7 and 9 of the Const.i.tution 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 Const.i.tution 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 Const.i.tution, belong to the competence of the Empire.

On the other hand, according to article 1, section 10, of the Const.i.tution 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: Const.i.tutional 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, const.i.tutional 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 const.i.tutional 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 const.i.tutional restrictions, although they are not of great importance in Great Britain,[859] play a prominent part in the Const.i.tutions of most countries. Thus, according to article 8 of the French Const.i.tution, 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 Const.i.tution 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 Const.i.tution 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.]