Encyclopædia Britannica, Ninth Edition/Treaties
TREATIES.1. A treaty is a contract between two or more states. The term "tractatus," and its derivatives, though of occasional occurrence in this sense from the 13th century onwards, only began to be commonly so employed, in lieu of the older technical terms "conventio publica," or "fœdus," from the end of the 17th century. In the language of modern diplomacy the term "treaty" is restricted to the more important international agreements, especially to those which are the work of a congress, while agreements dealing with subordinate questions are described by the more general term "convention." The present article will disregard this distinction.
συνθῆκαι and " fœdera " occupy much space in the Greek and Roman historians.2. The making and the observance of treaties is necessarily a very early phenomenon in the history of civilization, and the theory of treaties was one of the first departments of international law to attract attention. Treaties are recorded on the monuments of Egypt and Assyria; they occur in the Old Testament Scriptures; and questions arising under a-
3. Treaties have been classified on many principles, of which it will suffice to mention the more important. A "personal treaty," having reference to dynastic interests, is contrasted with a "real treaty," which binds the nation irrespectively of constitutional changes; treaties creating outstanding obligations are opposed to "transitory conventions," e.g., for cession of territory, recognition of independence, and the like, which operate irrevocably once for all, leaving nothing more to be done by the contracting parties; and treaties in the nature of a definite transaction (Rechtsgeschäft) are opposed to those which aim at establishing a general rule of conduct (Rechtssatz). With reference to their objects, treaties may perhaps be conveniently classified as (1) political, including treaties of peace, of alliance, of cession, of boundary, for creation of international servitudes, of neutralization, of guarantee, of submission to arbitration; (2) commercial, including consular and fishery conventions, and slave trade and navigation treaties; (3) confederations for special social objects, such as the Zollverein, the Latin monetary union, and the still wider unions with reference to posts, telegraphs, submarine cables, and weights and measures; (4) relating to criminal justice, e.g., to extradition and arrest of fugitive seamen; (5) relating to civil justice, e.g., to the protection of trade-mark and copyright, to the execution of foreign judgments, to the reception of evidence, and to actions by and against foreigners; (6) providing general rules for the conduct of warfare, e.g., the declaration of Paris and the convention of Geneva. It must be remarked that it is not always possible to assign a treaty wholly to one or other of the above classes, since many treaties contain in com bination clauses referable to several of them.
TREATIES 531 Ana- 4. The analogy between treaty-making and legislation logics, is striking when a congress agrees upon general principles which are afterwards accepted by a large number of states, as, for instance, in the case of the Geneva convention for improving the treatment of the wounded. Many political treaties containing "transitory" conventions, with reference to recognition, boundary, or cession, become, as it were, the title-deeds of the nations to which they relate. 1 But the closest analogy of a treaty is to. a contract in private law, as will appear from the immediately following paragraphs. Requi- 5. The making of a valid treaty implies several re- sites, quisites. (1) It must be made between competent parties, i.e., sovereign states. A "concordat," to which the pope, as a spiritual authority, is one of the parties, is therefore not a treaty, nor is a convention between a state and an individual, nor a convention between the rulers of two states with reference to their private affairs. Semi- sovereign states, such as San Marino or Egypt, may make conventions upon topics within their limited competence. It was formerly alleged that an infidel state could not be a party to a treaty. The question vhere the treaty- making power resides in a given state is answered by the municipal law of that state. It usually resides in the executive, though sometimes, as in the United States, it is shared by the legislature, or by a branch of it. (2) There must be an expression of agreement. This is not (as in private law) rendered voidable by duress ; e.g., the cession of a province, though extorted by overwhelming force, is nevertheless unimpeachable. Duress to the individual negotiator would, however, vitiate the effect of his signa ture. (3) From the nature of the case, the agreement of states, other than those the government of which is auto cratic, must be signified by means of agents, whose authority is either express, as in the case of plenipoten tiaries, or implied, as in the case of, e.g., military and naval commanders for matters, such as truces, capitulations, and cartels, which are necessarily confided to their discretion. When an agent acts in excess of his implied authority he is said to make no treaty, but a mere " sponsion," which, unless adopted by his Government, does not bind it, e.g., the affair of the Caudine Forks (Livy, ix. 5) and the con vention of Closter Seven in 1757. (4) Unlike a contract in private law, a treaty, even though made in pursuance of a full power, is, according to modern views, of no effect till it is ratified. (5) No special form is necessary for a treaty, which in theory may be made without writing. It need not even appear on the face of it to be a contract between the parties, but may take the form of a joint declaration, or of an exchange of notes. Latin was at one time the language usually employed in treaties, and con tinued to be so employed to a late date by the emperor and tl;3 pope. Treaties to which several European powers of different nationalities are parties are now usually drawn up in French (the use of which became general in the time of Louis XIV.), but the final act of the congress of Vienna contains a protest against the use of this language being considered obligatory. A great European treaty usually commences " In the name of the Most Holy and Indivisible Trinity," or, if the Porte is a party, "In the name of Almighty God." (6) It is sometimes said that a treaty must have a lawful object, but the danger of accepting such a statement is apparent from the use which has been made of it by writers who deny the validity of any cession of national territory, or even go so far as to lay down, with Fiore, that " all should be regarded as void which are in any way opposed to the development of the free activity cf a nation, or which hinder the exercise of its natural rights." (7) The making of a treaty is some- 1 Cf. Sir Edward Hertslet s very useful collection entitled The Map of Europe by Treaty, 1875. times accompanied by acts intended to secure its better performance. The taking of oaths, the assigning of "con- servatores pacis," and the giving of hostages are now obsolete, but revenue is mortgaged, territory is pledged, and treaties of guarantee are entered into for this purpose. 6. A " transitory convention " operates at once, leaving Duration, no duties to be subsequently performed, but with reference to conventions of other kinds questions arise as to the duration of the obligation created by them, in other words, as to the moment at which those obligations come to an end. This may occur by the dissolution of one of the contracting states, by the object-matter of the agreement ceasing to exist, by full performance, by performance be coming impossible, by lapse of the time for which the agree ment was made, by contrarius consensus or mutual release, by " denunciation " by one party under a power reserved in the treaty. By a breach on either side the treaty usually becomes, not void, but voidable. A further cause of the termination of treaty obligations is a total change of circumstances, since a clause "rebus sic stantibus" is said to be a tacit condition in every treaty. 2 Such a conten tion can only be very cautiously admitted. It has been put forward by Russia in justification of her repudiation of the clauses of the treaty of Paris neutralizing the Black Sea, and of her engagements as to Batoum contained in the treaty of Berlin. The London protocol of 1871, with a view to prevent such abuses, lays down, perhaps a little too broadly, " that it is an essential principle of the law of nations that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers, by means of an amicable arrangement." Treaties are in most cases suspended, if not terminated, by the outbreak of a war between the contracting parties, and are therefore usually revived in express terms in the treaty of peace. 7. The rules for the interpretation of treaties are not so Interpre- different from those applicable to contracts in private law tation. as to need here a separate discussion. 8. Collections of treaties are either (i.) general or (ii.) Collec- national. tions : (i. ) The first to publish a general collection of treaties was general ; Leibnitz, whose Codex Juris Gentium, containing documents from 1097 to 1497, " ea quae sola inter liberos populos legum sunt loco," appeared in 1693, and was followed in 1700 by the Mantissa. The Corps Universel Diplomatique du Droit des Gens of Dumont, con tinued by Barbeyrac and Rousset in thirteen folio volumes, con taining treaties from 315 A.D. to 1730, was published in 1726-39. Wenck s Corpus Juris Gentium Recentissimi, 3 vols. 8vo, 1781-95, contains treaties from 1735 to 1772. The 8vo Kecueil of G. F. de Martens, continued by C. de Martens, Saalfeld, Murhard, Samwer, Hopf, and Stoerk, commenced in 1791 with treaties of 1761, and is still in progress. The series in 1887 extended to sixty-four volumes. See also the following periodical publications: Das Staatsarchiv, Sammlung dcr officiellcn Actenstucke zur Geschichte der Gegenwart, Leipsic, commencing in 1861 ; Archives Diplo- matiques, Stuttgart, since 1821 ; Archives Diplomatiqucs, Eecueil Mensuel de Diplomatic et d Histoire, Paris, since 1861; and Herts- let s British and Foreign State Papers, from the termination of the War of 1814 to the latest period, compiled at the Foreign Office by the Librarian and Keeper of the Papers, London, since 1819, and still in progress. (ii.) The more important collections of national treaties are national, those of M. Neumann and M. de Plassan for Austria, 1855-84 ; Beutner for the German empire, 1883; Calvo for "1 Amerique Latine," 1862-69 ; De Clercq for France, 1864-86 ; De Garcia de la Vega for Belgium, 1850-83 ; Lagemans for the Netherlands, 1858-82 ; Soutzo for Greece, 1858 ; Count Solar de la Marguerite for Sardinia, 1836-61 ; De Castro for Portugal, 1856-79 ; Rydberg for Sweden, 1877 ; Kaiser (1861) and Eichmann (1885) for Switzer land ; Baron de Testa (1864-82) and Aristarchi Bey (1873-74) for Turkey ; F. de Martens for Russia, 1874-85 ; Mayers for China, 1877. The official publication for Italy begins in 1864, for Spain in 1843, for Denmark in 1874. The treaties of Japan were pub lished by authority in 1884. Those of the United States are con tained in the Statutes at Large of the United States, and in the 2 Cf. Bynkershoek, Quasst. JUT. Pub., ii. c. 10. 532 TREATIES collections of J. Elliott (1834) and II. Minot (1844-50) ; see also Mr Bancroft Davis s Notes upon the Treaties of the United States vrith other Powers, preceded by a List of the Treaties and Conventions with Foreign Poioers, chronologically arranged, and followed by an Analytical Index and a Synoptical Index of th>; Treaties, 1873. In England no treaties were published before the 17th century, such matters being thought "not fit to be made vulgar." The treaty of 1604 with Spain was, however, published by authority, as were many of the treaties of the Stuart kings. Rymer s Fcedcra was published, under the orders of the Government, in twenty volumes, from 1704 to 1732. Treaties are officially published at the present day in the London Gazette, and are also presented to parliament, but for methodical collections of treaties made by Great Britain we are indebted to private enterprise, which pro duced three volumes in 1710-13, republished with a fourth vol ume in 1732. Other three volumes appeared in 1772-81, the collection commonly known as that of C. Jeukinson (3 vols. ) in 1785, and that of Chalmers (2 vols.) in 1795. J. Macgregor pub lished (1841-44) eight volumes of commercial treaties, but the great collection of the commercial treaties of Great Britain is that of L. Hertslet, librarian of the Foreign Office, continued by his son and successor in office, Sir Edward Hertslet, entitled A Complete Collec tion of the Treaties and Conventions and Reciprocal Regulations at present subsisting between Great Britain and Foreign Powers, and of the Laws and Orders in Council concerning the same, so far as they relate to Commerce and Navigation, the Slave Trade, Post Office, <L-c. , and to the Privileges and Interests of the Subjects of the Contracting Parties, 1820-86, 16 vols. Sir Edward Hertslet also com menced in 1875 a series of volumes containing Treaties and Tariff s regulating the Trade between Britain and Foreign Nations, and Extracts of Treaties between Foreign Powers, containing the Most Favoured Nation Clauses applicable to Great Britain. The treaties affecting British India are officially set out, with historical notes, in A Collection of Treaties, Engagements, and Sannuds relating to India and Neighbouring Countries, by C. W. Aicheson. This work, with the index, extends to eight volumes, which appeared at Calcutta in 1862-66. List of 9. It may be worth while to add a list of some of the import- more important treaties, now wholly or partially in force, f"*.. especially those to which Great Britain is a party, classified according to their objects, in the order suggested in para graph 3. political; (i.) The principal treaties affecting the distribution of territory between the various states of Central Europe are those of Westphalia (Osnabriick and Miinster), 1648; Utrecht, 1713; Paris and Hubertsburg, 1763; for the parti tion of Poland, 1772, 1793; Vienna, 1815; London, for the separation of Belgium from the Netherlands, 1831, 1839 ; Zurich, for the cession of a portion of Lombardy to Sardinia, 1859; Vienna, as to Schleswig-Holstein, 1864; Prague, whereby the German Confederation was dissolved, Austria recognizing the new North German Confederation, trans ferring to Prussia her rights over Schleswig-Holstein, and ceding the remainder of Lombardy to Italy, 1866 ; Frank fort, between France and the new German empire, 1871. The disintegration of the Ottoman empire has been regu lated by the great powers, or some of them, in the treaties of London, 1832, 1863, 1864, and of Constantinople, 1881, with reference to Greece; and by the treaties of Paris, 1856 ; London, 1871 ; Berlin, 1878 ; London, 1883, with reference to Montenegro, Roumania, Servia, Bulgaria, and the navigation of the Danube. The encroachments of Russia upon Turkey, previous to the Crimean War, are registered in a series of treaties beginning with that of Kutchuk-Kainardji, 1774, and ending with that of Adrian- ople in 1829. The independence of the United States of America was acknowledged by Great Britain in the treaty of peace signed at Paris in 1783. The boundary between the United States and the British possessions is regulated in details by the treaties of Washington of 1842, 1846, 1871. Switzerland, Belgium, Corfu and Paxo, and Lux emburg are respectively neutralized by the treaties of Vienna, 1815, and of London, 1839, 1864, 1867. A list of treaties of guarantee to which Great Britain is a party, and which are supposed to be still in force, beginning with a treaty made with Portugal in 1373, was presented to parliament in 1859. (ii.) For the innumerable conventions to which Great commer- Britain is a party as to commerce, consular jurisdiction, cial > fisheries, and the slave trade, it must suffice to refer to the exhaustive and skilfully devised index to Hertslet s Commercial Treaties, forming volume xvi., 1885. (iii.) The social intercourse of the world is facilitated by social ; conventions, such as those establishing the Latin monetary union, 1865; the international telegraphic union, 1865; the universal postal union, 1874; the international bureau of weights and measures, 1875; and providing for the protection of submarine cables in time of peace, 1884. Such treaties are somewhat misleadingly spoken of by recent writers (L. von Stein and F. de Martens) as con stituting a " droit administratif international." (iv.) The following are the now operative treaties of as to ex- extradition to which Great Britain is a party: V vith tratiition the United States, 1842 ; Brazil and Germany, 1872 ; Austria, Denmark, Italy, Norway and Sweden, 1873 ; Hayti and Netherlands, 1874; Belgium and France, 1876 ; Spain, Portugal (as to India only), 1878; Tonga, 1879; Luxemburg, Equador, and Switzerland, 1880 ; Salvador, 1881; Uruguay, 1884; Guatemala, 1885; Russia, 1886. It will be observed that all these, except the treaty with the United States, are subsequent to and governed by the provisions of 33 and 34 Viet. c. 52, "The Extradition Act, 1870." Before the passing of this general Act, it had been necessary to pass a special Act for giving effect to each treaty of extradition. The most complete collec tion of treaties of extradition is that of- F. J. Kirchner, L Extradition, Recueil, &c., London, 1883. (v.) General conventions, to which most of the Euro- as to pean states are parties, were signed in 1883 at Paris for Copyright, the protection of industrial, and in 1886 at Bern for the protection of literary and artistic, property. (vi.) Certain bodies of rules intended to mitigate the as to the horrors of war have received the adhesion of most civilized c mluct states. Thus the declaration of Paris, 1856 (to which, fare however, the United States, Spain, Mexico, Venezuela, Columbia, Bolivia, and Uruguay have declined to accede), prohibits the use of privateers and protects the commerce of neutrals; the Geneva convention, 1864, gives a neutral character to surgeons and hospitals ; and the St Peters burg declaration, 1868, prohibits the employment of ex plosive bullets weighing less than 400 grammes. It were greatly to be wished that the official publication of treaties could be rendered more speedy and more methodical than it now is. The labours of the publicist would also be much lightened were it possible to con solidate the various general collections of diplomatic acts into a new Corps Diplomatique Universel, well furnished with cross references, and with brief annotations showing how far each treaty is supposed to be still in force. 10. In addition to the works already cited in the course of this Litera- article the following are for various reasons important: Joh. Lupus, tore. De Confederations Principum, Strasburg, 1511 (the first published monograph upon the subject); Bodinus, Dissertatio de Contractibus Summarum Potestatum, Halle, 1696 ; Neyron, De Vi Fcedcrum inter Gentes, Gott., 1778; Neyron, Essai Historique ct Politique sur les Garanties, &c., Gott, 1797; Wiichter, De Modis Tollcndi Pacta inter Gentes, Stuttg., 1780; Dresch, Ueber die Dauer dcr Volkervcrtrage, Landshut, 1808 ; C. Bergbohm, Staatsvertrdge und Gesetze als Quellen des Volkerrechts, Dorpat, 1877 ; Jellinek, Die rechtlichc Natur der Statenvcrtrdgcn, Vienna, 1880; Holzen- dorff, Handbuch des Volkerrechts, vol. iii., 1887. On the history of the great European treaties generally, see the Histoire Abregee des Traites de Paix entrc les Puissances de V Europe, by Koch, as recast and continued by Schbll, in 1817 and 1818, and again by Count de Garden in 1848-59 ; as also the Rccueil Manuel of De Martens and Cussy, now continued by Geffcken. For the peace of West phalia Piitter s Geist des westphalischcn Fricdens, 1795, is useful; for the congress of Vienna, Kliiber s Actcn des Wiener Congresses, 1815-19, and Le Congres de Vicnne et les Traites de IS 15, precedi des Conferences de Dresde, de Prague, ct de Chatillon, suim des Congres d Aix-la-Chapelle, Troppau, Laybach, et Verone, by Count Angeberg. The last-mentioned writer has also published collections of treaties relating to Poland, 1762-1862; to the Italian question, 1859; to the congress of Paris, 1856, and the revision of its work by the conference of London, 1871; and to the Franco-German War of 1870-71. For the treaties regulating the Eastern question, see The European Concert in the Eastern Question, by T. E. Holland, 1885, and La Turquie et le Tanzimat, by E. Engelhardt, 1882-84. (t. e. h.)
- For the celebrated treaty of 509 B.C. between Rome and Carthage, see Polybius iii. 22; and, on the subject generally, Barbeyrac's full but very uncritical Histoire des Antiens Traitéz, 1739; Müller-Jochmus, Geschichte des Volkerrechts im Alterthum, 1848; E. Egger, Études Historiques sur les Traités Publics chez les Grecs et chez les Romains, new ed., 1866.