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Published online by Cambridge University Press: 12 April 2017
It is impossible to deny that the early rule of international law was that the head of state, either directly or through his agents, was alone competent to make treaties, which were binding upon his successors. This was natural at a time when no type of international agreement was known other than the treaty in solemn form to which monarchs were parties. Today, new types of agreement have come into being, to which the parties are not heads of states but either the state itself (as in the Treaty of Versailles, 1919) or governments or departments of state. In all these cases, and even in cases where the parties are formally the heads of states, the unit now considered to be bound is the state, through its organs. This substitution of states for monarchs as the subjects of the law of nations, at any rate in the matter of treaties, has been brought about very largely by the French and American Revolutions of the eighteenth century, and by the development of the notion of the state as an international person. The question of the competence to make treaties binding on states, who may by their laws have limited that competence, has therefore become one of great interest in modern theory.
This article is part of a chapter in a book, to be published as soon as circumstances permit, on the development of treaty-making procedure.
2 The expression “treaty” is therefore used, for the purposes of this article, in the sense of any written instrument by which two or more states establish or declare rules of international law. The question of oral agreements or statements is excluded from the scope of this article; modern diplomatic practice does not justify the appellation “treaties” with regard to them. See Harvard Research Draft on Treaties, this Journal, Vol. 29 (1935), Supp., pp. 728-731, Anzilotti, Cours de droit International (Gidel trans., 1929), p. 354; Chailley, La Nature Juridique des Traites Internationaux (1932), p. 6; Scelle, Précis de droit des gens (1934), II, p. 331.
3 Satow, A Guide to Diplomatic Practice (3d ed., 1932), pp. 85-86; Kraus and Rödiger, Urkunden zum Friedensverträge (1920), I, p. 171 (Brazil), p. 197 (Czechoslovakia), p. 199 (Poland).
4 A large number of instruments of ratification and accession are collected in United States Department of State, Treaty for the Renunciation of War (U. S. Govt. Printing Office, Washington, 1933). Thirty of these instruments specifically mention either that constitutional requirements have been fulfilled or, in the case of an accession, that such fulfilment is a condition of the instrument becoming operative. See also Genêt, Traité de Diplomatic et de Droit Diplomatique (1932), III, p. 438; Satow, op. cit., p. 410; U. S. Foreign Relations, 1907, Pt. I, p. 316; Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1934), IV, pp. 339–340. Such evidence standing alone would not be impressive, but taken with other evidence of state practice it is very persuasive.
5 Over thirty treaties made by South American States between 1860 and 1913 contained a clause prescribing ratification in accordance with the constitutional requirements of the parties. The modern practice of the American States is consistently the same in the matter of inserting such clauses. See Chailley, op. cit., pp. 199–203; and many examples might be added to those cited by this learned writer. In Europe such clauses are unusual but not unknown. See, for example, treaties between Great Britain and Sweden, and between Italy and the Soviet Union, both made in 1933. British and Foreign State Papers, CXXXVI, pp. 441, 772. Another example of such a clause in a treaty to which European States were parties is the famous Pact of Paris of 1928.
6 Manning, Diplomatic Correspondence of the United States, Inter-American Affairs, 1831–1860, VIII (1937), p. 22 Google Scholar.
7 Manning, op. cit., V (1935), pp. 80–81.
8 Manning, op. cit., V, p. 85.
9 Ibid., p. 97.
10 Miller, Treaties and other International Acts of the United States of America (1931), IV, pp. 102-105.
11 See the declaration drawn up by the two governments on Feb. 9, 1848, Miller, op. cit, IV, p. 106.
12 Ibid., p. 338.
13 Ibid., p. 340.
14 Ibid., p. 345. See, generally, pp. 328–348.
15 Manning, Diplomatic Correspondence of the United States, Inter-American Affairs, IX (1937), pp. 11–41, 309–332Google Scholar.
16 Fontes Juris Gentium, Series B, Sectio 1, Tomus 1, Part 1, p. 726.
17 Basdevant, Académie de droit international, Recueil des Cours (1926), XV, p. 582, n. 1. He suggests that “denunciation” was an acknowledgment that the constitutional flaw did not affect the validity of the adhesion; but see comment on this suggestion by Chailley, op. cit., p. 222, who suggests that the motive in employing this “regular” procedure was political.
18 Martens, Nouveau Recueil Général (2d ser.), X, p. 133.
19 Moore, Digest of International Arbitrations, II, p. 1946.
20 League of Nations Official Journal, Spl. Supp. No. 133, pp. 18 and 43. See Proceedings of the Commission of Inquiry into the dispute between Bolivia and Paraguay (1929), pp. 1151–1152.
21 Hudson, , “Argentine Republic and the League of Nations,” This Journal, Vol. 28 (1934), p. 125 Google Scholar.
22 Accioly, Tratado de Direito International Publico (1933–1935), II, p. 413.
23 Hyde, International Law (1922), II, p. 9.
24 Mirkine-Guetzévitch, Droit Constitutionnel International (1933), p. 165.
25 Basdevant, loc. cit., p. 582. Chailley, op. cit., pp. 222–223.
26 See Young, International Legal Status of the Kwantung Leased Territory (1931), p. 169; U. S. Foreign Relations (1919), Vol. I, p. 347, but see ibid., p. 384.
27 The case of Rumania in 1921 is discussed by McNair in his introduction to Arnold, Treaty-Making Procedure (1933), p. 12.
28 League of Nations Official Journal, 1924, pp. 1351, 1599.
29 Ibid., 1925, p. 577, Annex 755.
30 Ibid., 1925, p. 479.
31 The incident is discussed by Chailley, op. cit., pp. 232–233. He draws a stronger inference from the report than is implied by the view stated in the text.
32 League of Nations Official Journal (February, 1935), p. 116.
33 League of Nations Official Journal (February, 1935), p. 121. See ibid., p. 118.
34 Ibid., pp. 190–192.
35 Ibid. (November, 1935), p. 1204.
36 Moore, Digest of International Arbitrations, V, pp. 4463–4464.
37 But, even so, Chailley contrives to extract from it some small support for his view. Op. cit., pp. 224–225. It will be noticed that a very similar problem arose in the case of the Attorney-General for Canada v. Attorney-General for Ontario, [1937] A. C. 326. It was argued that the International Labor Convention in this case had not been validly ratified; but the Judicial Committee did not sanction this view, and clearly drew a distinction between municipal requirements in the formation of treaty obligations and the validity of legislation to implement or perform these obligations. It seems to result from this decision that there are two ways of making international agreements binding on Canada: (1) as part of the British Empire, (2) as an independent state or, to use the language of the Judicial Committee, “as an international juristic person.” [1937] A. C, p. 349.) If an agreement is made in the first way in the name of His Britannic Majesty, and ratified under the Royal Great Seal, S. 132 of the British North America Act, 1867, gives power to the Dominion Parliament to pass legislation in order to “implement” it. In Re Regulation and Control of Aeronautics in Canada, [1932] A. C. 54. If the agreement is made in the second way, the Dominion Parliament has no general overriding powers under S. 132, but only such powers of legislation to give effect to it as are expressly granted by the British North America Act, 1867, in respect of the subject-matter of the agreement in question. In Re Regulation and Control of Radio Communication in Canada, [1932] A. C. 304. See Jenks, Canadian Bar Review, XV (1937), No. 6, p. 464; Daggett, ibid., XVI (1938), No. 3, p. 159; Elkin, Rev. Gén. Droit Int. Pub. (1938), XLV, p. 658; R. B. Stewart, Treaty Relations of the British Commonwealth of Nations (1939), Ch. X, especially p. 299 et seq. The 1937 judgment is discussed from several angles in a special number of the Canadian Bar Review, XV (1937), No. 6.
38 Lapradelle–Politis, Recueil des Arbitrages, II, pp. 676–705.
39 Lapradelle–Politis, Recueil des Arbitrages, II, p. 703.
40 Rivista di Diritto Internationale, 1913, p. 518. An English text is given in this Joubnal, Vol. 6 (1912), p. 995.
41 See Chailley, op. cit., pp. 230–232; McNair’s Introduction to Arnold, Treaty-Making Procedure (1933), p. 8.
42 Annual Digest of Public International Law Cases (1923–1924), Case No. 8.
43 Publications of the Permanent Court of International Justice, Series C, No. 62, p. 563.
44 Loc. cit., Series C, No. 63, p. 880. See also ibid., pp. 881–883, 1411–1413.
45 Loc. cit, Series A/B, No. 53, p. 71.
46 The following incidents are also discussed by McNair: The Tinoco Arbitration (1923), this Journal, Vol. 18 (1924), pp. 147–174; The Irish Free State annuities dispute, Cmd. (1932) 4056; Anglo–Persian Oil Dispute (1932), Toynbee, Survey (1934), pp. 224–247. I have omitted discussion of these cases. Two of them involve concessions, not treaties. Few, I suppose, would doubt that a concession must be valid by the local law, but it does not follow that a treaty must be constitutionally valid. With regard to the Irish Free State annuities case, it does not appear that both parties to the dispute regarded the principles of international law as being applicable even by way of analogy. It does not seem possible, therefore, to draw any clear inference from this case. See, with regard to agreements made by states falling under the domain of private law, Harvard Research draft on Treaties, this Journal, loc. cit., pp. 693–696; and see also Publications for the Permanent Court of International Justice, Series A/B, No. 62.
47 Hudson, International Legislation (1931), IV, p. 2378.
48 Information supplied by the Pan American Union (Aug. 1, 1939). These states are Brazil, Ecuador, Haiti, Nicaragua, Panama, Dominican Republic.
49 See Arnold, Treaty-Making Procedure (1933), and Delpech and Laferrifère, Les Constitutions Modernes (1928–1932). The texts are also discussed by Wilcox, The Ratification of International Conventions (1935), pp. 74–100, and (very briefly) by Basdevant and Mirkine-Guétzevitch in a report prepared for the Congress of Comparative Law: Actorum Academiae Universalis Jurisprudentiae Comparativae (1935), Vol. II, Pars. I l l , p. 667.
50 This law abolishes the necessity of obtaining the consent of the Reichstag to treaties, and restores the right of the President to make treaties subject to the counter-signature of the Foreign Secretary: Meissner, Vollmacht und Ratifikation (1934), pp. 96–97. See, for an historical account of the provisions of the Weimar Constitution and its modification under the National Socialist régime, Schiffer and Wilcox, this Journal, Vol. 30 (1936), p. 216.
51 Hall, International Law (8th ed., 1924), pp. 351, 380; Oppenheim, International Law (5th ed., 1937), I, p. 700.
52 Wright, Control of American Foreign Relations (1922), pp. 41, 53; Strupp, Eléments du Droit International Public (1927), p. 192; Schücking, Annuaire de l’Institut International de Droit Public (1930), p. 225; Charles De Visscher, Bibliotheca Visseriana, II, p. 98; Clunet, VII, p. 5; Hyde, International Law (1922), II, p. 9; Chailley, op. at., pp. 167–236; Dehousse, La Ratification des Traités (1935), pp. 124–150; Art. 21 of the Harvard Research draft on Treaties, this Journal, ibid. But the latter lays down a rule establishing a claim in damages by a state which “justifiably” relies upon the representations made by another state as to its internal law. See the remarks of Fitzmaurice, British Year Book Int. Law (1934), XV, p. 136. See also, for British doctrine, McNair, The Law of Treaties (1938), Chs. II and III.
53 Scelle, Droit des gens (1934), II, p. 440; Dehousse, op. cit., pp. 149, 150; P. B. Potter, this Journal, Vol. 28 (1934), p. 456. Chailley distinguishes between “constitutionnalité extrinsèque” and “constitutionnalité intrinsèque”, but argues that both are internationally the basis of the validity of treaties, op. cit, p. 240. He criticizes the view stated in the text, op. cit. pp. 286–288. Chailley argues that even before the constitutional era there existed certain limitations on the treaty-making power. He supports this contention by referring to the “fundamental laws” of the ancien régime in France. These prohibited, for instance, the alienation of French territory without the consent of the States-General, the renunciation of the Crown by the heir presumptive, or the conclusion of a treaty by a monarch who was a minor. Chailley, op. cit., pp. 180–185; Declareuil, Histoire Générale du droit frangais dhs origines d 1789 (1925), pp. 418–421. The first two examples concern the material validity of treaties. The last-mentioned rule (as to the minority of monarchs) was doubtless recognized, and is clearly a rule relating to formal validity of treaties. It was an international application of the private law rules as to capacity to contract. The Venetian Ambassador, writing to his superiors on March 30, 1510, with regard to a recent treaty between France and England, said: “Report that the treaty is invalid as English Kings should be above 21 years old when they make any treaty and his present Majesty is under that age.” Calendar of State Papers (Venetian), edited by Rawdon Brown, Vol. II (1867), No. 67. See also ibid., No. 66 and No. 74. Chailley cites the Treaty of Madrid, 1535, as evidence of the controlling force of fundamental laws. By this treaty the King of France agreed to cede to Emperor Charles V of Spain, the province of Burgundy, which was inalienable by the Salic Law. Hauser, Le Traite de Madrid et la cession de la Bourgogne à Charles-Quint (1912), p. 93, n. 4. The treaty was signed under duress, for the French King was kept in captivity until it was signed, and hostages were to be kept until it was ratified (Arts. 4 and 5). Since the feudal law forbade the dissolution of the bond between suzerain and vassal save by consent, by Art. 4 the French King agreed to issue a proclamation releasing his vassals in Burgundy from their allegiance. For the text of the treaty see Dumont, Corps Universel du droit des gens, IV, Pt. I, p. 399. There are cases on record where vassals protested against treaties ceding territory which violated this rule of feudal law. See Declareuil, cited above. Chailley seeks to draw, from the existence of the clauses mentioned in the Treaty of Madrid, the inference that fundamental laws were fully operative internationally even on such questions of material validity. This is not a novel type of argument; but such clauses are generally taken as evidence that, in their absence, the conditions laid down (assent of Estates-General, etc.) would not be required, and that a ratification without such assent would be binding on the French King. Nor is there the slightest trace of the objections to the treaty by France being based on a violation of fundamental laws. All the evidence shows that the real basis of the French refusal to ratify was that both signature and ratification were being sought by the use of duress on the part of Spain—physical duress against the person of the King, his wife, and his son. See Hauser, op. cit., pp. 152, 156, 160–163. An Assembly of Notables in a lit de justice declared the treaty null and void. Declareuil, op. cit., p. 420. The British Government tried in vain to procure the summoning of the Estates-General to approve the Treaty of Utrecht. But it has never been argued that the treaty was void for this reason. Dehousse observes that, on this point, Chailley’s argument is weak, because it is based “sur une pratique trop exclusivement franchise,” op. cit., p. 140, n. 4. For other examples of the rule that no valid treaty can be made by a minor see Calendar of State Papers (Spanish), Vol. II, p. 442, Vol. IV, Pt. I, p. 426, cases in which it was invoked with regard to the infant Prince of Spain and the French Dauphin and other infant children of the French King, respectively. For three cases where the substantive rules or content of a treaty might have conflicted with constitutional limitations see the discussions relating to the Webster-Ashburton Treaty, and the Dillon case, cited by Wright, op. cit, pp. 55–57, 80–82. It is submitted that, in case of actual conflict arising in such cases, the treaty is not “itself void as beyond the competence of the treaty-making power” (ibid., p. 81), but only pro tanto void, municipally, and to the extent of the inconsistency.
54 Ibid. The question of the material validity of treaties is a difficult one. Certain treaties are perhaps forbidden altogether, on the ground that they conflict with fundamental principles of law or morality. It may be that the power of a state to make treaties is limited to certain topics, or it may be vested in another state by a treaty of protectorate or by some other means. Such questions are discussed by the following (among other) writers: Oppenheim, International Law (5th ed., 1937), I, p. 706; Lauterpacht, British Year Book of International Law (1936), XVII, p. 54; Verdross, this Journal, Vol. 31 (1937), p. 574, and see the writers cited in the preceding note, especially P. B. Potter. See also Harvard Research draft on Treaties, cited above, Art. 22(b) and (c) with comment; Scelle, op. cit., II, p. 457, McNair, The Law of Treaties (1938), pp. 112–118. Some literature on the question is cited by Vitta, La Validité des Traités Internationaux, Bibliotheca Visseriana, XIV (1940), Chap. III. However this question may be solved, it is clear that the principles which govern the material validity of treaties are laid down by international law, and that municipal law cannot modify or abrogate these principles. But see the argument of Chailley, who contends that the material as well as the formal validity of treaties is governed by internal law, op. cit., pp. 243–328. It follows from this view that international law is merely the “public external law” of states and may be changed by their unilateral acts. It is unacceptable.
55 Anzilotti, Cours de droit International (Gidel trans. 1929), pp. 359–367; Bittner, Die Lehre von den völkerrechtliehen Vertragsurkunden (1922), pp. 81–86; Cavaglieri, Acadimie de droit international, Recueil des Cours (1929), XXVI, pp. 500–501; Basdevant, ibid. (1926), XV, p. 581; Verdross, ibid. (1929), XXX, p. 300; Fauchille, Rev. Gén. Dr. Int. Pub. (1907), XIV, p. 665; Despagnet, ibid. (1895), II, p. 184; Siotto-Pintor, ibid. (1935), XLII, p. 521.
It seems that, in spite of the detailed provisions of the Swedish Constitution, most Swedish writers reject the view that constitutional requirements are internationally binding. See Bloch in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1934), IV, pp. 39–41. See also Fitzmaurice who, in his article, “Do Treaties need Ratification”, rejects the same view, British Year Book of International Law (1934), XV, pp. 113–137.
56 Anzilotti, op. cit., p. 361.
57 Above, p. 463. See also the statements frequently made by the United States to foreign governments in the early days of the Republic. Moore’s Digest, V, pp. 198, 199, 206.
58 Anzilotti, op. cit, pp. 361–362.
59 Qui cum alio contrahit vel est vel debet esse non ignarus conditionis ejus. See Anzilotti, op. cit., p. 364, and also the brief but pungent remarks of Fairman, this Journal, Vol. 30 (1936), p. 460.
60 McNair in his introduction to Arnold, Treaty-Making Procedure (1933), p. 6; Wright, Control of American Foreign Relations (1922), pp. 54–55.
61 Basdevant, loc. cit., p. 581.
62 Fitzmaurice, although a supporter of the traditional rule, is particularly clear on this question. He points out that no theoretical distinction can be properly drawn between states “whose constitutions are obscure” and “those whose constitutions are well known.” Ibid., p. 131.
63 Above, p. 467.
64 See Fairman, loc. cit., p. 457, and Chailley, op. cit., pp. 216–220.
65 Fairman, loc. cit., p. 459; Chailley, op. tit, pp. 210-215; Scelle, Précis de droit des gens (1934), II, pp. 460–461. By “inter-governmental” agreements is meant international agreements which take the form of agreements between governments and not states or heads of states; by “inter-departmental” agreements is meant agreements between government departments, such as Air Ministries, Post Offices, etc., of which there is a fair number —usually, but not always, authorized by a treaty in solemn form. Executive agreements made by the President of the United States sometimes include agreements of the latter type. German law and practice, the former Austrian Constitution of 1920, Art. 66 (2), and the Constitutions of Denmark, Iraq, and Salvador recognize expressly this type of agreement. See Arnold, Treaty-Making Procedure (1933). See also Meissner, Vollmacht und Ratifikation (1934), pp. 16–20, 26, 29, 85, 95; Bittner, Die Lehre von den völkerrechtlichen Verträgsurkunden (1924), pp. 56, 58–61, 76, 189; Satow, A Guide to Diplomatic Practice (3d ed., 1932), pp. 363–368; Genêt, Traité de Diplomatié et de Droit Diplomatique (1931), III, pp. 485–492; Basdevant, Académie de droit International, Recueil des Cours, XV (1926), pp. 618, 623–624; Schmitz, Zeitschrift für Aualändisches öffentliches Recht und Völkerrecht (1933), I, p. 322; Harvard Research draft on Treaties, this Journal, Supplement, Vol. 29 (1935), p. 694.
66 The writer regards this principle (which space does not permit him to develop here) as an entirely adequate answer to the suggestion that damages should be awarded against a state whose agents have misled the other party as to its constitutional laws; for, if the treaty is not repudiated as unconstitutional within a reasonable time, or is partly executed, it is, in the first case, binding and, in the second case, pro tanto binding. If, on the other hand, it is repudiated within a reasonable time, and there has been no part performance, it falls to the ground and there is no substantial cause for complaint in law, though there may of course, be bad feeling.
67 See above, p. 479, n. 65.
68 Fitzmaurice, loc. cit., p. 137, n. 1.
