International Law. A Treatise Volume I Part 68

[Footnote 859: See Anson, "The Law and Custom of the Const.i.tution," II.

(2nd ed.), pp. 297-300.]

[Sidenote: Mutual Consent of the Contracting Parties.]

-- 498. A treaty being a convention, mutual consent of the parties is necessary. Mere proposals made by one party and not accepted by the other are, therefore, not binding upon the proposer. Without force are also pollicitations which contain mere promises without acceptance by the party to whom they were made. Not binding are, lastly, so-called _punctationes_, mere negotiations on the items of a future treaty, without the parties entering into an obligation to conclude that treaty.

But such _punctationes_ must not be confounded either with a preliminary treaty or with a so-called _pactum de contrahendo_. A preliminary treaty requires the mutual consent of the parties with regard to certain important points, whereas other points have to be settled by the definitive treaty to be concluded later. Such preliminary treaty is a real treaty and therefore binding upon the parties. A _pactum de contrahendo_ requires likewise the mutual consent of the parties. It is an agreement upon certain points to be incorporated in a future treaty, and is binding upon the parties. The difference between _punctationes_ and a _pactum de contrahendo_ is, that the latter stipulates an obligation of the parties to settle the respective points by a treaty, whereas the former does not.

[Sidenote: Freedom of Action of consenting Representatives.]

-- 499. As a treaty will lack binding force without real consent, absolute freedom of action on the part of the contracting parties is required. It must, however, be understood that circ.u.mstances of urgent distress, such as either defeat in war or the menace of a strong State to a weak State, are, according to the rules of International Law, not regarded as excluding the freedom of action of a party consenting to the terms of a treaty. The phrase "freedom of action" applies only to the _representatives_ of the contracting States. It is _their_ freedom of action in consenting to a treaty which must not have been interfered with and which must not have been excluded by other causes. A treaty concluded through intimidation exercised against the representatives of either party or concluded by intoxicated or insane representatives is not binding upon the party so represented. But a State which was forced by circ.u.mstances to conclude a treaty containing humiliating terms has no right afterwards to shake off the obligations of such treaty on the ground that its freedom of action was interfered with at the time.[860]

This must be emphasised, because in practice such cases of repudiation have frequently occurred. A State may, of course, hold itself justified by political necessity in shaking off such obligations, but this does not alter the fact that such action is a breach of law.

[Footnote 860: See examples in Moore, V. -- 742.]

[Sidenote: Delusion and Error in Contracting Parties.]

-- 500. Although a treaty was concluded with the real consent of the parties, it is nevertheless not binding if the consent was given in error, or under a delusion produced by a fraud of the other contracting party. If, for instance, a boundary treaty were based upon an incorrect map or a map fraudulently altered by one of the parties, such treaty would by no means be binding. Although there is freedom of action in such cases, consent has been given under circ.u.mstances which prevent the treaty from being binding.

III

OBJECTS OF TREATIES

Vattel, II. ---- 160-162, 166--Hall, -- 108--Phillimore, II. -- 51--Walker, -- 30--Bluntschli, ---- 410-416--Heffter, -- 83--Ullmann, -- 97--Bonfils, No. 819--Despagnet, No. 445--Pradier-Fodere, II.

Nos. 1080-1083--Merignhac, II. p. 640--Rivier, II. pp. 57-63--Nys, III. p. 24--Fiore, II. Nos. 1001-1004, and Code, Nos.

755-758--Martens, I. -- 110--Jellinek, "Die rechtliche Natur der Staatenvertrage" (1880), pp. 59-60--Nippold, op. cit. pp. 181-190.

[Sidenote: Objects in general of Treaties.]

-- 501. The object of treaties is always an obligation, whether mutual between all the parties or unilateral on the part of one only. Speaking generally, the object of treaties can be an obligation concerning any matter of interest for States. Since there exists no other law than International Law for the intercourse of States with each other, every agreement between them regarding any obligation whatever is a treaty.

However, the Law of Nations prohibits some obligations from becoming objects of treaties, so that such treaties as comprise obligations of this kind are from the very beginning null and void.[861]

[Footnote 861: The voidance _ab origine_ of these treaties must not be confounded with voidance of such treaties as are valid in their inception, but become afterwards void on some ground or other; see below, ---- 541-544.]

[Sidenote: Obligations of Contracting Parties only can be Object.]

-- 502. Obligations to be performed by a State other than a contracting party cannot be the object of a treaty. A treaty stipulating such an obligation would be null and void. But this must not be confounded with the obligation undertaken by one of the contracting States to exercise an influence upon another State to perform certain acts. The object of a treaty with such a stipulation is an obligation of one of the contracting States, and the treaty is therefore valid and binding.

[Sidenote: An Obligation inconsistent with other Obligations cannot be an Object.]

-- 503. Such obligation as is inconsistent with obligations under treaties previously concluded by one State with another cannot be the object of a treaty with a third State. Thus, in 1878, when after the war Russia and Turkey concluded the preliminary Treaty of Peace of San Stefano, which was inconsistent with the Treaty of Paris of 1856 and the Convention of London of 1871, England protested,[862] and the Powers met at the Congress of Berlin to arrange matters by mutual consent.

[Footnote 862: See Martens, N.R.G. 2nd Ser. III. p. 257.]

[Sidenote: Object must be physically possible.]

-- 504. An obligation to perform a physical impossibility[863] cannot be the object of a treaty. If perchance a State entered into a convention stipulating an obligation of that kind, no right to claim damages for non-fulfilment of the obligation would arise for the other party, such treaty being legally null and void.

[Footnote 863: See below, -- 542.]

[Sidenote: Immoral Obligations.]

-- 505. It is a customarily recognised rule of the Law of Nations that immoral obligations cannot be the object of an international treaty.

Thus, an alliance for the purpose of attacking a third State without provocation is from the beginning not binding. It cannot be denied that in the past many treaties stipulating immoral obligations have been concluded and executed, but this does not alter the fact that such treaties were legally not binding upon the contracting parties. It must, however, be taken into consideration that the question as to what is immoral is often controversial. An obligation which is considered immoral by other States may not necessarily appear immoral to the contracting parties, and there is no Court that can decide the controversy.

[Sidenote: Illegal Obligations.]

-- 506. It is a unanimously recognised customary rule of International Law that obligations which are at variance with universally recognised principles of International Law cannot be the object of a treaty. If, for instance, a State entered into a convention with another State not to interfere in case the latter should appropriate a certain part of the Open Sea, or should command its vessels to commit piratical acts on the Open Sea, such treaty would be null and void, because it is a principle of International Law that no part of the Open Sea can be appropriated, and that it is the duty of every State to interdict to its vessels the commission of piracy on the High Seas.

IV

FORM AND PARTS OF TREATIES

Grotius, II. c. 15, -- 5--Vattel, II. -- 153--Hall, -- 109--Westlake, I. pp. 279-281--Wheaton, -- 253--Moore, V. -- 740--Bluntschli, ---- 417-427--Hartmann, ---- 46-47--Heffter, ---- 87-91--Ullmann, -- 80--Bonfils, Nos. 821-823--Pradier-Fodere, II. Nos.

1084-1099--Merignhac, II. p. 645--Rivier, II. pp. 64-68--Nys, III.

pp. 25-28--Fiore, II. Nos. 1004-1006, and Code, Nos.

759-763--Martens, I. -- 112--Jellinek, "Die rechtliche Natur der Staatenvertrage" (1880), p. 56--Nippold, op. cit. pp. 178-181.

[Sidenote: No necessary Form of Treaties.]

-- 507. The Law of Nations includes no rule which prescribes a necessary form of treaties. A treaty is, therefore, concluded as soon as the mutual consent of the parties becomes clearly apparent. Such consent must always be given expressly, for a treaty cannot be concluded by tacit consent. But it matters not whether an agreement is made in writing, orally, or by symbols. Thus, in time of war, the exhibition of a white flag symbolises the proposal of an agreement as to a brief truce for the purpose of certain negotiations, and the acceptance of the proposal on the part of the other side by the exhibition of a similar symbol establishes a convention as binding as any written treaty. Thus, too, history tells of an oral treaty of alliance, secured by an oath, concluded in 1697 at Pillau between Peter the Great of Russia and Frederick III., Elector of Brandenburg.[864] Again, treaties are sometimes concluded through an exchange of diplomatic notes between the Secretaries for Foreign Affairs of two States or through the exchange of personal letters between the heads of two States. However, as a matter of reason, treaties usually take the form of a written[865] doc.u.ment signed by duly authorised representatives of the contracting parties.

[Footnote 864: See Martens, I. -- 112.]

[Footnote 865: The only writer who nowadays insists upon a _written_ agreement for a treaty to be valid is, as far as I know, Bulmerincq (-- 56). But although all important treaties are naturally concluded in writing, the example of the agreements concluded between armed forces in time of war either orally or through symbols proves that the written form is not absolutely necessary.]

[Sidenote: Acts, Conventions, Declarations.]

-- 508. International compacts which take the form of written contracts, are, besides _Agreements_ or _Treaties_, sometimes termed _Acts_, sometimes _Conventions_, sometimes _Declarations_. But there is no essential difference between them, and their binding force upon the contracting parties is the same whatever be their name. The Geneva Convention, the Declarations of Paris and of London, and the Final Act of the Vienna Congress are as binding as any agreement which goes under the name of "Treaty" or "Convention." The attempt[866] to distinguish fundamentally between a "Declaration" and a "Convention" by maintaining that whereas a "Convention" creates rules of particular International Law between the contracting States only, a "Declaration" contains the recognition, on the part of the best qualified and most interested Powers, of rules of universal International Law, does not stand the test of scientific criticism. A "Declaration" is nothing else but the t.i.tle of a law-making treaty according to which the parties engage themselves to pursue in future a certain line of conduct.[867] But such law-making treaties are quite as frequently styled "Conventions" as "Declarations." The best example is the Hague "Convention" concerning the laws and usages of war, which is based upon the unratified "Declaration" concerning the laws and customs of war produced by the Brussels Conference of 1874.

[Footnote 866: On the part of the British Foreign Office, see Parliamentary Papers, Miscellaneous, No. 5 (1909), Cd. 4555, Proceedings of the International Naval Conference held in London, December 1908-1909, p. 57.]

[Footnote 867: See above, -- 487.]

[Sidenote: Parts of Treaties]

-- 509. Since International Law lays down no rules concerning the form of treaties, there exist no rules concerning the arrangement of the parts of written treaties. But the following order is usually observed. A first part, the so-called _preamble_, comprises the names of the heads of the contracting States, of their duly authorised representatives, and the motives for the conclusion of the treaty. A second part consists of the primary stipulations in numbered articles. A third part consists of miscellaneous stipulations concerning the duration of the treaty, its ratification, the accession of third Powers, and the like. The last part comprises the signatures of the representatives. But this order is by no means necessary. Sometimes, for instance, the treaty itself does not contain the very stipulations upon which the contracting parties have agreed, such stipulations being placed in an annex to the treaty. It may also happen that a treaty contains secret stipulations in an additional part, which are not made public with the bulk of the stipulations.[868]

[Footnote 868: The matter is treated with all details by Pradier-Fodere, II. ---- 1086-1096.]

V

RATIFICATION OF TREATIES

Grotius, II. c. 11, -- 12--Pufendorf, III. c. 9, -- 2--Vattel, II. -- 156--Hall, -- 110--Westlake, I. pp. 279-280--Lawrence, -- 132--Phillimore, II. -- 52--Twiss, I. -- 214--Halleck, I. pp.

276-277--Taylor, ---- 364-367--Moore, V. ---- 743-756--Walker, -- 30--Wharton, II. ---- 131-131A--Wheaton, ---- 256-263--Bluntschli, ---- 420-421--Heffter, -- 87--Gessner in Holtzendorff, III. pp.

15-18--Ullmann, -- 78--Bonfils, Nos. 824-831--Pradier-Fodere, II.