XX

decide to sign them, leaving others free to remain outside the agree- CHAP. ment and be governed by the former law, if any. In the second place, their force is qualified by the fact that, as generally provided, an individual signatory power may, upon giving due notice, denounce the convention and thereby release itself from the obligations it has assumed. In a few instances, such as the Declaration of Paris of 1856, and the second of the Washington treaties of 1922 relating to the use of submarines and noxious gases in warfare, in which no provision is made for denunciation and separate withdrawal, the binding force of the treaty would seem to be equivalent to that of a strict international contract.

and limited

treaties

On the other hand, bilateral treaties, or multilateral treaties Bilateral dealing with objects primarily of interest to the small group of multilateral signatory powers, depend for their binding force upon a different principle. Here the international community is indifferent to the subject-matter of the treaty and is concerned solely with seeing that the parties live up to the bargain into which they have entered. One of the oldest rules of international law is that of the sanctity of treaty obligations. That good faith should be kept between states in respect to their contractual agreements has long been regarded as not merely a matter of moral duty as between the particular parties to the treaty, but as a matter of common concern to the whole body of states. Unless the pledged word of a state could be relied upon, it has been clear from the time when the conception of international law first took definite shape that the relations of the entire international community would be imperiled and law itself disappear. Hence international law has at all times put forth whatever sanctions were at its disposal, whether the public opinion of the nations at large or, on occasion, the collective intervention of the states more directly concerned, to enforce re

1 For the effect of such denunciation, see below, p. 340.

Compare the impressive appeal made by Grotius, Book III, Chap. XXV: "For not only is each commonwealth kept together by good faith, as Cicero says, but that greater society of which nations are the members." (Whewell's trans.)

Respect for the faith of treaty obligations was the principal argument in the appeal of President Wilson to the United States Congress on March 5, 1914, for the repeal of the law exempting American coastwise vessels from payment of tolls in passing through the Panama Canal. The President waived the existence of differences of opinion in the United States as to American rights under the treaty, asserting that the meaning of the treaty was not debated outside the United States, and that everywhere else the law was interpreted as constituting a discrimination, and should be repealed on that basis if on no other. Am. Journal, VIII (1914), 593. See also, addresses of Senator Root, January 21, 1913, May 21, 1914, Addresses on International Subjects, 207, 241.

CHAP.

XX

Sanctions

for the observance of treaties

し

c. Classifi cation of treaties

spect for the obligations of a treaty. While, therefore, international law exercises no control over the terms of a particular treaty, or over the consideration given for the contract, it does impose upon the parties individually the legal duty of abiding by the agreement in good faith."

As in the case of other rules of international law, the sanction for the observance of treaty obligations has been frequently ineffective to secure its object. Public opinion of the nations at large has not always been adequate to prevent breach of contract when one of the parties has believed that its vital interests were at stake. The attitude of the German chancellor in 1914 toward the treaty providing for the neutralization of Belgium does not stand alone in indicating that circumstances may arise in which a state may believe itself to be released from the obligations of a treaty.1 Collective intervention has been a more effective sanction, as shown, for example, in the results of the World War; but its action has always been uncertain, and its punitive effect has frequently been unable to make good the harm done. From time to time cases of alleged breach of contract have been arbitrated voluntarily by the parties to the dispute, as in the instance of the Japanese House Tax case; and it is noteworthy that disputes relating to the interpretation of treaties have been considered as particularly suited to arbitration. But even where provision has been made for the arbitration of treaty disputes, as in the Root treaties of 1908, an exception has been entered in favor of the exclusion of questions affecting the honor and vital interests of the contending parties. Thus the United States was able, subsequent to the conclusion of the treaty of 1908, to refuse to arbitrate its dispute with Great Britain over the interpretation of the Hay-Pauncefote Treaty of 1901. Downto the present day suits for breach of contract have obtained only a qualified legal standing in international law.5

2

International law knows no formal classification of treaties. Like the contracts of municipal law, treaties are of the widest variety, dealing with the whole range of interests of international

'Doubtless the characterization of the treaty of 1839 by the chancellor as a "scrap of paper" (British Blue Book) was more frank than has been usual in such situations, but the facts of the case may be matched in other international incidents, e.g., in the annexation of Bosnia and Herzegovina by Austria-Hungary in 1908.

See below, p. 407. 'See above, p. 276.

See, however, the provisions of the optional clause' attached to the protocol of signature for acceptance of the Statute of the Permanent Court of International Justice. Below, p. 414.

XX

life. Methods of classification have at times been suggested by CHAP. publicists in the interest of scientific precision and clearness, and several of them are helpful as throwing light upon the legal character of the engagement entered into. Thus the distinction between unilateral and bilateral treaties indicates whether the obligation is binding upon one party only or upon both parties. Unilateral in substance, if not in form, was the treaty between the United States and Cuba in 1903.1 The distinction between simple and conditional treaties bears upon the absolute or qualified character of the obligation assumed, as in the case of a treaty of guarantee. More important is the distinction between executed and executory treaties. Executed treaties, also known as transitory or dispositive treaties, deal with single acts, which are to be performed forthwith, and which, when performed, dispose of the matter once and for all. Of such character are boundary conventions and treaties of cession, which closely approximate to deeds of transfer and other executed contracts of municipal law. On the other hand, executory treaties are continuous, dealing with acts which are to be performed regularly whenever the occasion for them is present, or with exceptional acts which must be performed when the particular conditions specified in the treaty come about. Such are treaties of commerce and of extradition, and the numerous treaties establishing administrative agencies, which set up continuous relations between the parties for the life of the treaty. Such also are treaties of alliance, guarantee, and neutralization, which may operate over a long period of years without once calling for performance. The classification of treaties according to their object, distinguishing between general and special objects, or between political, social, and economic objects, has little or no bearing upon the legal nature of the obligations assumed, although it is a convenient method for a descriptive treatment of the substance of the treaty.

International law has long recognized as one of the distinguishing tests of a fully sovereign state that it should be able to contract freely with other states. But, as has been pointed out, the division of states into sovereign and semi-sovereign, while still an accepted part of international law, is neither logical nor strictly applicable to the facts of international life. Accepting the alternative standard of membership in the family of nations as the test of international personality, it will be seen that a number of states See above, p. 92. See above, p. 88.

1

d. Forma

tion of

treaties:

capacity of

the parties

CHAP.
XX

have full international personality and yet have given up some measure of their treaty-making power. Treaties of neutralization, such as the Belgian treaty of 1839, limit the power of the state to enter into treaties of alliance with other states, but are not regarded as encroaching upon the formal independence of the state.1 In the treaty of 1903 with the United States by which Cuba formally acquired independence, the new republic agreed not to enter into any treaty with a foreign state which would have the effect of impairing its independence or of authorizing any foreign power to obtain a lodgment in or control over the island. The restriction, as will be, noted, is of little practical consequence to Cuba.

On the other hand it is possible for states enjoying only a limited or qualified membership in the family of nations to enter into contractual engagements with states possessing full membership. It would seem, however, that international law has regarded these treaties, especially when made with the native tribes of Africa, as having considerably less legal validity than treaties between other states. At all events, violations of such treaties have taken place without giving rise to any apparent concern on the part of the community of nations as a whole. The treaty-making powers of the British self-governing dominions are exceptional. Canada, for example, has enjoyed since 1884 the right to negotiate commercial treaties with foreign countries, her agent acting for this purpose through the channels of the British Foreign Office. Later, her representative negotiated alone, but signed in conjunction with the British ambassador. More recently, the Halibut Fisheries Treaty was signed by the Canadian minister alone, he acting on that occasion as the representative of the British Crown and holding full powers from it.*

In certain instances, such as that of the Germanic Confederation of 1815-66, the members of a confederation retain the right to enter into treaties with foreign nations, their capacity to contract being in such cases determined by the constitution of the confederation. Occasionally, as in the case of Bavaria under the German See above, p. 87. See above, p. 92.

The question of Canada's right of separate and independent ratification of British treaties affecting Canada is referred to above, p. 99.

The treaty was signed March 2, 1923. It should be observed that the United States, whether of intention or inadvertently, overlooked the official character of Mr. Lapointe as a Canadian minister and referred to the treaty as having been entered into with "Great Britain."' See A. L. Lowell, The Treaty-Making Power of Canada," in Foreign Affairs, September 15, 1923, pp. 12-22.

Empire, a member of a close federation retains the right to enter CHAP. into treaties of a particular class.1

XX

state

Prior to the development of modern constitutional governments, Powers of there was a clear rule of international law that the agents dele- agents gated by their governments to negotiate a treaty must have "full powers" to conclude a binding agreement. Since the decision of the monarch was final in point of domestic law, it was only necessary for him to authorize his agent to act in his name, and upon the signature of the latter the agreement become binding forthwith. Moreover, communication being slow, it was impossible for the agent to be in close touch with his government; so that it became necessary to confide in his skill as a negotiator and to accept as final the best bargain he could succeed in making. The works of the writers of the eighteenth century are consequently preoccupied with questions of the due authorization of diplomatic agents, and of the results which should follow in case an agent had exceeded his powers.2 Cases might arise where an agent pledged his government to acts so clearly detrimental to the state that good faith did not require the acceptance of the terms. Or again, an agreement might be concluded by an agent in excess of the powers intrusted to him, and on the strength of it acts might be performed by the other party to the advantage of the state before it could repudiate the acts of its agent. What were the obligations of the state benefiting by such an agreement? It was clear that restitution must be made, and as far as possible conditions must be put back where they were before.3 In many instances this presented serious practical difficulties, especially in the case where the agreement was made between military commanders in the field. These and other

It is a question of constitutional rather than of international law whether a state, such as the United States, has the power under its constitution to enter into treaties of a certain character, which, for example, might change its form of government. While foreign governments may reasonably be expected to take into account the constitutional capacity of the government with which they are contracting, it is clear that, in so far as international law is concerned, the United States as an international person has full capacity to contract whatever impediments its domestic constitution may offer to the execu tion of the agreement. See Moore, Digest, V, §§ 735-736, where instances of conflicts between the treaty-making power and the Constitution are given. See also Wright, Control of Am. Foreign Relations, No. 31.

See, for example, Vattel, Droit des Gens (Eng. trans.), Bk. II, §§ 207, 212, where numerous phases of the law of his time are discussed.

Compare the rules laid down by Grotius, Bk. II, Chap. XV, § XVI, and Vattel, Bk. II, § 209, for the agreement known as sponsio made by a public official in excess of authority conferred or upon his own personal responsibility.

The classic case is that of the agreement between the Roman consuls and

the Samnites at the Caudine Forks, 321 B.C. See Vattel, loc. cit.