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Violation of Treaties: Bad Faith, Nonexecution and Disregard

Published online by Cambridge University Press:  04 May 2017

Denys P. Myers
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Extract

Gradually there has developed a system of treaty negotiation which eliminates all possibility of bad faith in contracting, unless the mala fides is both deliberate and long-lived. Modern treaty technique accounts for this, the stages of a treaty from negotiation to entry into force having been developed to serve th|s very end. When kings alone ruled in the brave days of old, only signatures, bolstered up on occasion by oaths, giving of hostages, etc., were employed to give faith to such documents.

Type
Research Article
Information
American Journal of International Law , Volume 11 , Issue 4 , October 1917 , pp. 794 - 819
Copyright
Copyright © American Society of International Law 1917

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References

1 “When prudent princes rode to an interview surrounded by armed men, met on a bridge, and conversed through a grating, it was no strange thing that treaties should be broken as fast as they were made. To us, however, it may well seem strange that acute and sagacious men should not have discerned both that these varied and redoubled promises rested on nothing at all but the good faith they were meant to fortify, and that a penalty which is nugatory, or a pledge which can be circumvented, is not only ineffective but worse, because it lends a treacherous satisfaction to the conscience, suggests the very subtleties that elude it, and assists the easy work of self-deception.” — Mountague Bernard, Four Lectures on Subjects connected with Diplomacy, 192.

1 Exchange of ratifications is now customarily noted in texts published in the two great and continuous collections, British and Foreign State Papers, and Martens’ Recueil général de traités. The British Treaty Series notes only the exchange of ratifications, but an annual number of the series lists accessions, withdrawals, etc., which in the case of multipartite conventions indicates deposits of ratifications, reserves, etc. The good practice of the United States Treaty Series of recording every essential action toward rendering a bipartite treaty effective by both contractants seems not to be followed elsewhere, as it deserves to be.

3 De Koch, Histoire abrégé, I, 40-44; Garden, op. cit., 1,10; Léonard, Traités de paix, II, 484.

4 Latin text, Du Mont, Corps universel diplomatique, IV, Part III, 42.

5 Schoell, op. cit., II, 307. Frederick’s career contains other instances of treatybreach ascribable to bad faith.

6 Garden, Traité complet de diplomatic, I, 418.

7 Op. cit., III, 124.

8 “The city and territory of Geneva shall still be considered neuter, every time that, being calm and tranquil, two or three guaranteeing powers may be at war among themselves, and may maintain troops in their vicinity.”

9 Martens, Recueil, V, 95.

10 The international status of Switzerland was eventually settled by the Treaty of Vienna of June 9, 1815.

11 Pradier-Fodéré, Traité de droit international, II, 753.

12 Schoell, op. cit., V, 316. Ratification was not then considered as the binding’ stage of a treaty, which was obligatory when signed.

13 Garden, Histoire générale des Traités de paix, VI, 214.

14 Schoell, ibid., V, 399, 400.

15 About the only difference between violation by disregard and by deliberation, which is considered later in this study, lies in the admitted knowledge of the effect of the violating act either by a lapse into honesty on the part of the government itself or from outside representation.

The situation indicated in the text was very aptly illustrated by the Treaty of Vienna of June 8, 1815, consisting of stipulations repeated from seventeen separately concluded treaties declared to be integral parts of the main treaty. As a matter of fact, the contractants of the separate treaties found it possible and technically correct to abrogate, annul, or alter the separate engagements among themselves, and thus to nullify the same provisions in the principal treaty, whose signatories were helpless to hinder this war of attrition, which from 180 pages of text in 1815, has left only 30 in force and vigorous to this day.

16 Schoell, op. cit., VI, 215-216. For another account of the circumstances, see David Jayne Hill, History of European Diplomacy, II, 476-477. Charles V at this time evidently introduced the maxim that “necessity knows no law” into European politics.

17 Schoell, op. cit., I, 50-58; Du Mont, Corps universel diplomatique, V, Part 2, 43-47, 135, 147.

18 Schoell, op. cit., II, 194 ff.; Garden, op. cit., III, 130-153.

19 Schoell, op. cit., IV, 367; Garden, op. cit., V, 343.

20 Schoell, op. cit., V, 102 ff.; Garden, op. cit., VI, 18-25.

21 William Hardman, A History of Malta, 61, 77, 100; Jonquière L’Expedition d’Egypte, I, 640; Garden, op. cit., VI, 46.

22 Hardman, A History of Malta, 404, 433, 444, 447-448, 449, 453, 463, 466, 469, 472, 481.

23 Text in Wenck, Codex, I, 591.

24 Schoell, op. cit., VI, 45; Garden, ibid., VI, 307, 335-336.

25 Schoell, op. cit., V. 33; Garden, op. cit., V, 403.

26 Schoell, op. cit., V, 318; Garden, op. cit., VI, 220.

27 The territories affected were: former Belgian provinces, the county of Falkenstein, Frickthal, Austrian possessions on the left bank of the Rhine, Verona, Brisgau, Modena, and Elba.

28 Schoell, op. cit., V, 364; Garden, op. cit., VI, 256-257.

29 Schoell, op. cit., VI, 146; Garden, op. cit., VII, 37.

30 Garden, op. cit., VII, 144.

31 Le Congrès de Vienne , 148 ff.

32 Correspondence of Prince Talleyrand and Louis XVIII, 340.

33 Ibid., 391.

34 For. Rel., 1894, App. I, 329-352; Moore, Digest of International Law, IV. 100.

35 Moore, Digest of International Law, V, 414.

36 Moore, Digest, V, 459; For. Rel., 1897, 83-84.

37 Sir Thomas Barclay, The Turoo-ltalian War and Its Problems, 130.

38 The United States and Latin America are here considered of the European order.