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Treaty Violation and Defective Drafting

Published online by Cambridge University Press:  04 May 2017

Denys P. Myers
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American Journal of International Law , Volume 11 , Issue 3 , July 1917 , pp. 538 - 565
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Copyright © American Society of International Law 1917

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References

1 A treaty is primarily a compact between independent nations, and has been briefly described as a contract between nations. 38 Cyc, 961.

A compact between states or organized communities or their representatives. United States v. Hunter, 21 Fed. 615, 616.

Treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization. Mr. Justice Brown in Tucker v. Alexandroff, 1901, 183 U. S., 424, 427, cited in Scott's Cases on International Law, 426.

As between nations it [a treaty]] is in its nature a contract, and if the consideration fail, for example, or if its important provisions be broken by one party the other may, at its option, declare it terminated. Davis, J., in Hooper, Admr. v. United States and other cases, 1887, 22 Court of Claims, 408, 416.

Treaties are not purely voluntary compromises; they are acknowledgments of material conditions engendered by the state of society. Those which have anticipated most have been doomed to the most humiliating failures. David Jayne Hill, History of European Diplomacy, II, 605.

Their general character must assimilate them to a real contract. They may be defined as the expressly declared agreement by two or more states to establish, modify or extend between them an obligatory relation. Despagnet, Cours de Droit international, sec. 444.

Hautefeuille (Des droits et des devoirs de nations neutres, I, 10) observes that treaties which limit themselves to appealing to the provisions of primitive laws and to determining and regulating the method of their exercise between the contracting parties are always obligatory, not only for the whole time stipulated by the parties, but for the whole period of existence of the contracting states, because they cannot modify the rules relative to the execution of the primitive laws.

A treaty is a contract between independent political societies…. A contract is an accepted promise…. An obligation is a force determining human conduct. The force exerted by the penalty attached to the breach of law, and thus by the law itself, is the thing corresponding to the phrase legal obligation. The force exerted by the sentiment of moral disapproval, and thus by any rule of conduct to the infraction of which it is attached, is the thing answering to the phrase moral obligation. But this is not precisely what we mean when we use these phrases. We do not mean the force actually exerted in either case — a force which varies infinitely…. We mean rather the force which the law is calculated to exert — without any conscious analysis of the notion expressed by “ought,” which indeed seems to elude analysis. The obligation of a law thus denotes to us, not the actual force of the law, but a force which our minds ascribe to it; and the obligation of a moral rule denotes a force which our minds ascribe to the moral rule. The moral obligation of a contract is the duty of not disappointing the expectation which the promise is calculated tgpcreate; and the strength of the duty depends on the strength and the reasonableness' of that expectation. The rules of conduct which use and opinion are sure to beget by degrees among civilized communities in constant and various association with each other have acquired not only the name but somewhat of the strength of laws; they perform for nations, though imperfectly, the precious service which laws perform for private men, that of furnishing fixed positive standards for conduct and for the adjustment of disputes. Mountague Bernard, Four Lectures on Subjects connected with Diplomacy, 164–169

2 Wharton, International Law Digest, 2, 58, cited Moore, Digest of International Law, 5, 319; Bluntschli, Das moderne Volkerrecht, sees. 411, 412, 414, 450 ff.; Laghi Theoria dei trattati internazionali, 198 ff.; Henry Bonfils (mise au courant par Paul Fauchille), Manuel de Droit international public, 855–860.

It should be stated that nothing new has been added to the framework of law relative to the extinction of treaties since Samuel Puffendorf wrote Book III of Juris naturae et gentium libri VIII in 1672, and he was much indebted to Grotius. Almost all authors of treatises refer to the subject, many as fully as those here cited.

For a study of extinction see Olivi, Luigi, Sull’ Estinzione dei Trattati internazionali, in Annuario delle Scienze giuridiche, sociali e politiche, diretto da Carlo F. Ferraris. Anno 4, 1883, 1-67. Olivi reviews the opinions of publicists very thoroughly and concludes inter alia:

“Therefore, with few exceptions, we can say that our science was and is unanimous in protesting against the violation of international pacts, and that just as it has recognized the freedom of states to bind themselves by valid agreements, so it has denied to them an unlimited freedom of choice in considering them extinct at their pleasure, taking merely material interests as the only rule for such behavior” (p. 11).

“In harmony with the argument previously maintained, we dub as unacceptable the theory of Del Bon, which makes the subsistence or extinction of a treaty of commerce depend on the mere utility of a contracting state” (p. 30).

“Different criteria according to the various kinds of treaties cannot be adduced, but it is necessary to fix in some way a single criterion for all cases” (p. 31).

3 Vattel (III, VI, 93) poses the proposition in considering three allied states, of which two are at war against each other and are calling on the third for assistance.

4 An arbitrary expulsion may nevertheless give rise to a diplomatic claim. Moore, Digest of International Law, IV, 67–96. Allegations of treaty violation as a result of expulsion have been nulled by the United States in connection with incidents based on Art. 1 of the treaty of December 18, 1832, with Russia (ibid., pp. 70–80, 111–129); Art. XIII of the treaty of June 13, 1839, with Ecuador (ibid., p. 74); Art. 14 of the treaty of April 5, 1831, with Mexico (ibid. pp. 75–76); Art. 6 of the treaty of November 3, 1864, with Haiti (ibid., pp. 89–92), though in this case (Loewi’s) arbitrary circumstancesjgcomplicated the question; Art. XII of the treaty of March 3, 1849, with Guatemala (ibid., pp. 102–108).

5 Despagnet amplifies this and considers it legitimate (a) when observation of the treaty has become compromising for the political or economic existence of a country; (b) when the circumstances which were the motive for the treaty have changed and divest the clear purpose of the agreement of its reason for being. “But the condition of maintenance of treaties rebus sic stantibus must be in good faith and must not be extended to accidental modifications.”

6 De Jure belli ac pacis, II, XV, 16

7 Juris naturae el gentium, VIII, IX, 12.

8 The last personal treaty that has come to the writer’s attention is one between Queen Victoria and the King of Prussia for the marriage of the Princess Royal with Prince Frederick William Nicholas Charles of Prussia, signed at London, Dec. 18, 1857 (Pari. Papers, 1857–58, LX, 1).

9 Charles Calvo, Le Droit international, ed. of 1870, I, 719–720

10 Père Bougeant, Histoire du traié de Westphalie, VI, 413, 414. The oath is to be found in most old treaties. Compare those of Cambrai (1529), Art. 46; of Cateau Cambrésis (1559), Art. 124; of the Peace of the Pyrenees (1659), Art. 124; the Treaty of Ryswick (1697), Art. 38. The most modern example is in the alliance of 1777 between France and Switzerland, the oath being confirmed in the Cathedral of Soleure.

The oath was, of course, dependent for its efficacy upon the predominance of the Roman Church. So long as the Holy See was able to maintain a position for itself above all sovereigns, its influence was extensive in foreign relations between them. Pope Boniface “excommunicated Philip of France; absolved all his subjects from their allegiance to him; threatened them with curses if they obeyed him; declared him incapable of command; annulled all treaties which he might have made with princes.” Robert Ward, Enquiry into the Foundation and History of the Law of Nations in Europe, II, 62.

“Another considerable advantage derived to sovereigns from the Pope’s power appears in the manner in which the observation of treaties during these times was enforced. As the obedience of men gave the most effectual support to the decrees of the pontiff, it became common with them, when they entered into engagements, to subject themselves to the penalties of an interdict in case of failure, by which the power of the prince was blasted in its vigor; and could the frailty of mankind have insured a proper use of this prerogative, it would have continued one of the most powerful guaranties for the preservation of good faith that has ever been devised.” Ward, ibid., II, 32.

11 An instance is the Treaty of Vincennes of 1371 between Charles V of France and Robert Stuart, King of Scotland, in which it was agreed that “the pope would discharge the Scots from all oaths they had taken in swearing the truce with the English, and that he would promise never to discharge the French and the Scotch from the oaths they had made in swearing the new treaty.”

12 Phillimore, Commentaries upon International Law, II, 81, lists the methods as oaths, hostages, pledges, guaranties, offering persons as sureties, and choosing third parties as guardians.

13 Wheaton, Elements of International Law, Part III, cap. II, 11. The confirmations were due to an attempt to live up to the joint guaranty included in the treaty.

14 Cited in Vattel, Le Droit des gens, II, XV, 221.

15 The figures are taken from Lange, l’Arbitrage obligatoire entre nations en 1913. It is interesting to note that this provision is of long standing, fitfully employed until within recent years. The Treaty of Westphalia of 1648 provides for it in Art. 17, sec. 5; the Treaty of Oliva of May 3, 1660, in Art. 35, sec. 2; the treaty of 1756 between Denmark and Genoa; the treaty of 1843 between France and Ecuador; and the Treaty of Paristf 1856 in Art. 8.

16 Capitulatory provisions are (or were) in force with the Ottoman Empire as follows: France, 1604; England (Great Britain), 1675; Russia, 1783; Austria (Hungary), 1784; Two Sicilies (Italy), 1740; Spain, 1732; the Netherlands, 1680; Prussia (Germany), 1790; United States, 1830. Parenthesized names indicate territorial changes. Austria-Hungary and Italy are under contract with the Sublime Porte to support any attempt to abolish capitulations by negotiation.

17 Répertoire, 42, part 1, 561, sec. 169. In the same general connection see also Rudolph von Jhering, Der Zweck im Recht, I, 474–500.

18 In re Thomas, 12 Blatch, 370, cited in Scott’s Cases on International Law, 441; Terlinden v. Ames, 184 U. S. 270.

19 Instances of vigorous treaties only have been examined. It may be useful to submit tests to determine them. F. de Martens, in his Traité de Droit international (I, 515) lays down certain fundamental conditions which must underlie a treaty. He divides these into: (1) subjective conditions, as to the persons who conclude the acts; and (2) objective conditions, as to the objects of the treaties. The subjective conditions are: (1) The concluding states must be fully independent, semisovereign states not having the legal capacity to sign treaties (Staatsarchiv, XXIX, No. 5482); (2) negotiators must have full powers to engage a state and observe the customary forms of this state; (3) the necessity of sanctioning or ratifying, ratifications indicating the formal acceptance by the sovereign authority of a treaty concluded by duly authorized plenipotentiaries; (4) free will of the contracting parties, error, fraud and constraint rendering an international agreement without effect; (5) reciprocity of declarations, it being necessary that every proposition made by one of the parties be accepted by the other. (In this connection the learned Russian cites an instance in which Sweden's declaration of peace of Nov. 7, 1772, supposed the existence of the corresponding declaration of Denmark, which in reality did not occur until two days later, Nov. 9, 1772.) His objective conditions are: (1) [p. 531]] material and moral possibility to execute; (2) obligation only upon the contracting parties; (3) the right recognized by a treaty to a certain state may not, therefore, be conceded to another state.

Pradier-Fodéré, Traité, 2, 716, sec. 1057, says that the four conditions of the validity of treaties, indispensable to their existence, are: capacity of the contractants; their consensus; a certain purpose forming the matter of the engagement; and a licit cause.

20 Schoell, Histoire Générale des Traités de Paix, II, 106; Hall, op. cit., 1st ed., 284; Phillimore, op. cit., 2, sec. LXXIII. The treaty of Utrecht as to Dunkirk stipulates “nec dicta munimenta, portus, moles, aut aggeres, denuo unquam reficiantur”.

21 Schoell, Histoire Générale des Traités de Paix, II, 320–322; Garden, ibid., III, 260.

22 F. A. Wenck, Codex juris gentium recentissimi, 2, 471; Schoell, op. cit., II, 361; Garden, op. cit., III, 321–322.

23 Schoell, III, 89, 90, 107, 123.

24 Schoell, V, 46, 48, 52, 123.

25 Rouard de Card, Les Relations de I’Espagne et du Maroc, 68–89.

26 Schoell, V, 354.

27 Appended to the treaty also is the full text of the Treaty of San Ildefonso. See Malloy, Treaties, Conventions, etc., 506–511; Compilation of Treaties in Force, 257–262.

28 Garden, op. cit., VIII, 75.

29 Schoell, IX, 68–71.

30 Budgett Meakin, The Moorish Empire, 228 note; Treaties, Conventions, etc., 1776–1909, 1223; Treaties in Force, 563.

31 Rouard de Card, Les Relations de VEspagne et du Maroc, 155–165,192–194, 201, 223, 226.

32 It is often asserted that the treaties of the Anglo-Portuguese alliance are secret. Wheaton knew them and anybody may find them in British and Foreign State Papers, I, 412 ff.