CHAPTER X

TREATY NEGOTIATION

HE ordinary work of the diplomatic representative

TH consists in the conduct of negotiations relating to

current questions at issue between his own state and the state to which he is accredited. These negotiations may be conducted orally, in conversations with the Foreign Secretary of the state to which the representative is sent, or in writing, by exchanges of diplomatic notes. In the former case the element of personal intercourse is predominant, and the action is transitory and leaves little trace of itself behind, unless a memorandum of the agreement reached in the negotiations is drawn up and signed by the participants. In the latter case the correspondence remains to serve as a record of the transaction; though here also, in the absence of a signed statement summarizing the exchange of views, the chance for disagreement as to the real results of the negotiation is great, and the degree of incon-\ clusiveness and impermanence in this form of action is therefore also considerable. This is all the more inconvenient when the negotiations have concerned, not some special case, as, for example, the citizenship of a certain individual, but a general question, such as the principles which the two states agree to follow in the future in settling disputed cases of citizenship.

For these reasons—namely, the unstable and impermanent character of purely personal diplomatic negotiations -this primitive form of international government was supplemented at a very early stage of international development with the device of the formal written agreement.

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INTERNATIONAL ORGANIZATION

Anlaborate practice of treaty-negotiation sprang up among the Greek and Roman states of Antiquity.1 Such . a result followed naturally from the desire and effort to leave a permanent record of diplomatic agreements behind, and, in its simplest form, constituted merely a final stage of personal diplomacy. Indeed, the noun "treaty" seems to have been formed on the basis of the verb "to treat,'' used to describe diplomatic negotiations; when diplomats treat with one another for peace a treaty of peace is the result. The treaty is of such a distinctive character, however, and has developed to such an extent on its own account, apart from its parent practice, that it deserves study by itself. The negotiation of treaties and their analysis and generalization among the states is a distinct branch of modern international government.2

It is to be noted, first, that the usual object of the formal treaty today is to provide for certain and definite action in the future whenever a given type of question shall arise a question of citizenship, of commercial privileges, of extradition-without the necessity for special diplomatic agreement every time upon the merits of the case. So far as the process of treaty negotiation is successfully extended, therefore, the practice of personal diplomacy is rendered superfluous. The greater the num✓ ber of questions which are settled in advance by treaties, the fewer will be left for settlement by diplomacy as they arise, assuming, of course, that the treaty is faithfully executed on both sides.

This elaborate extension of treaty negotiation is preceded by a much simpler stage where the treaty itself has for its object merely the settlement of a concrete case. Such, for example, is the treaty providing for the ale of a given piece of territory. This simplest type of treaty is hardly more than a compact ad hoc, or a contrat promis

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1On treaties in Antiquity, see, beside Phillipson, Egger, atire.

For literature on treaty negotiation see, below, Appends B, § 10.

ing a specific performance, in contrast to the treaty negotiated upon a general subject to operate continuously into the future. The latter treaty approaches legislation in its nature, especially when it is concluded among several states and deals with subjects in a general and comprehensive way. Thus the treaty, which begins within the range of simple personal diplomacy, ends in the most advanced and/ final stage of international government.

Under ordinary circumstances treaties are negotiated by the regular diplomatic representatives permanently accredited between or among the states concerned.1 For such a purpose the standing powers and instructions of the diplomatic representatives are often adequate; a regular diplomatic representative would not hesitate, if a sufficient occasion demanded, to enter into treaty negotiations with the Foreign Secretary even if his standing instructions said nothing upon the matter. In most cases, however, special authorization and instructions are needed by the 7 representative abroad; and, even if he enters into negotiations for a treaty with the state to which he is accredited, he will communicate with his home government for authority and instructions to continue the discussion, and he will be able to sign an agreement, in the absence of such special authority, only ad referendum, that is, upon the understanding that the agreement is to be referred to the home government for approval.2 In these days of swift communication and when treaties must commonly be submitted for approval to representative bodies before being effective, the diplomat finds few occasions for such unauthorized action, while, on the other hand, all treaties are, in actual fact, signed ad referendum.

When special "powers" are issued to diplomats for the, negotiation of treaties, these documents perform the function performed by the credentials of the diplomatic repreU. S. Diplomatic Instructions, §§ 242, 243. 'Satow, § 189.

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sentative in ordinary cases. The "full-power" serves to identify the diplomat personally, and to describe the scope of his authority for the current negotiation.1 It ordinarily authorizes him to sign on behalf of his state. Indeed, it is of little value if it does not do so, as was evidenced at one time in 1920 when Russian representatives refused to enter into peace discussions with the Poles so long as the latter had no powers to sign a treaty of peace. The fullpower pledges ratification by the state, provided the agreement made does not exceed the limits of discretion entrusted to the agent. But there would be no obligation resting upon a state which had given authority to its agent merely to arrange for an exchange of prisoners, to ratify an agreement for, let us say, the exchange of territory.

While the negotiation of ordinary treaties may be left to members of the regular diplomatic service, special treaties of great importance, such as treaties of peace and general international conventions among more than two powers, are ordinarily concluded by delegates or commissioners specially chosen for the negotiations in hand or for representation at the conference where the convention is to be drawn up. The press of business upon the regular diplomatic service and the fact that specially qualified agents are, or are not, available, are considerations which determine whether or not special agents shall be utilized for the purpose. Thus, on one hand, the American Ambassador in Paris was left entirely aside in 1918-19 when it came to the negotiation of a treaty of peace at the close of the World War, while several smaller powers made use of their representatives in Paris rather than send special agents from Asia or South America. Where special agents are used they are given diplomatic rank for the time being to facilitate their work, and are provided with 'Examples in Crandall, 635, and Satow, §§ 126-138; see also Moore, Digest, § 739.