Wednesday, March 7, 2012

13. Treaty Obligation from the Protestant Reformation to 1919: Part 13 Law Revolution at the Paris Peace Conference

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B.A.) and then East European and Ottoman history at Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).

Foreword

This is first publication of the integral text of "Treaty Obligation from the Protestant Reformation to 1919." However, portions dealing with "Honour's Role in the International States' System" were published in Denver Journal of International Law and Policy, Vol. 31 (2002), pp. 113-155, and also appear as a separate posting on this website. Research for this present essay took place in Ottawa during service with the Privy Council Office which greatly assisted by regularly making conveniently available a variety of materials, including some rare books, from the Supreme Court of Canada Library, the National Library of Canada and the Library of Parliament. "Treaty Obligation from the Protestant Reformation to 1919" is current to the end of 2002.

The Part 1: Introduction discusses the thesis that before the First World War the moral and "natural law" principle that "agreements are to be kept" (pacta sunt servanda) was binding in honour alone. Part 2 reviews classical international law’s assessment of the treaty as a legal source.  Part 3 shows that, before the First World War, treaties were not always accepted as an integral part of international law.  Part 4 explains why treaties were then not seen as legally binding, and describes how international law governed treaties via pacta sunt servanda as a moral and "natural law" requirement.  Part 5 illuminates the State’s moral personality with reference to both personification and treaties as “contracts of kings.” Honour is identified as one of the principal features of pre-1914 European civilization and international relations in Part 6.  Part 7 portrays the “old diplomacy” as a milieu focusing on honour.  Part 8 shows what kings, prime ministers, philosophers and lawyers had to say about treaties binding in honour. The honour of treaties as seen in Britain and the USA is the subject of Parts 9 and 10 respectively.  Part 11 recalls that, before 1914, all treaties were a “gentlemen’s agreement” -- an expression which only made sense in public international law after 1919, i.e. as a specific exception to the new rule that treaties are normally binding in law. Part 12 treats the “new diplomacy” that arose during the First World War and discusses the rise of the legal paradigm.  Finally, in this posting, Part 13 highlights the law-centered order inaugurated by the 1919 Paris Peace Settlement which created conditions supporting 20th-century discourse about treaties as legally binding.  


Honour replaced by law in 1919

As a fading theme, discourse about “honour” survived the Paris Peace Conference.  For example, France’s honour was said to have been at stake in the June 1940 discussion about whether to abandon Great Britain and make a separate peace with Germany.[1]  But, after 1919-20 “honour” was largely vestigial, because — as told to the German delegation at the Paris Peace Conference — “the old era is to be left behind and nations as well as individuals are to be brought beneath the reign of law.”[2]  The Covenant of the League of Nations became part of each one of the 1919-20 peace treaties, which as a body established a new international order abandoning the old chivalric archetype for the paradigm of domestic law.  Domestic legal systems were the model for the Covenant’s four interrelated innovations — “international peace and security”; a duty to seek peaceful settlement of international disputes; efforts to make treaties legally binding; and restraints on recourse to war.

First, Covenant provisions went a long way toward abrogating what I choose to call “privity of conflict” — i.e. the customary rule that a non-belligerent third party had no right to interfere (locus standi) in a bilateral international dispute.[3]  This was replaced by an entirely new juridical concept called “international peace and security”— a communitarian idea which insisted that “any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League.”[4]  The “peace of Europe” and the “general peace” had featured in earlier treaties.[5]  However, past references to “peace” pointed principally to the literal absence of war, mostly in connection with the bilateral states of war and peace, then recognized by both international and domestic law.[6]  By contrast, the Covenant envisaged “international peace” both literally as the absence of violence and figuratively as the name for the League of Nations’ new global jurisdiction, consciously modelled on the “King’s peace” of the early English Common Law.[7]



Second, the Covenant placed strong emphasis on seeking peaceful settlement of international disputes.  There was to be the possibility of political settlement by the League Council and Assembly, and of resolution of justiciable disputes by binding third-party arbitration, including determinations by a new Permanent Court of International Justice, which began operating in 1922.[8]  During the first decade of its existence, this Court did important work which sustained an “element of idealism about the role of third party dispute settlement processes.”[9]

Third, efforts to make treaties legally binding were encouraged by the memory that Germany’s 1914 invasion of Belgium had been a treaty violation — for Great Britain the casus belli.  Although former German Emperor William II ultimately succeeded in staying in exile in Holland, the Versailles Treaty created an important precedent by demanding that he personally stand trial “for a supreme offence against the sanctity of treaties.”[10]  Moreover, the Covenant called for “scrupulous respect for all treaty obligations.”  Because President Wilson wanted foreign relations democratized and subject to popular control, his Fourteen Points decreed that diplomacy “must proceed always frankly and in the public view.”  The treaties ending the war were to be “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.”[11]  Implementation was via the Covenant stipulation that no treaty was to be “binding” unless registered with the Secretariat which had to publish a comprehensive League of Nations Treaty Series.[12]  Wilson argued that this “open diplomacy” would enable citizens to follow foreign affairs and monitor State compliance with international law.[13]  Moreover, the 1920 Statute of the Permanent Court of International Justice broke new ground by giving the treaty primacy among the sources of international law — before custom, general principles of law, judicial decisions, and the teachings of publicists.[14]  As an international legal device, the treaty had clearly risen since 1914, when Bethmann Hollweg had made his disparaging remark about a “scrap of paper.”



Fourth, the League sought to place some international disciplines on a State’s right to wage war, recourse to which had been largely unregulated by the international law of 1914.[15]  The strong condemnation of Germany’s “criminal” behaviour was largely ex post facto — more the cause of international law than its result.[16]  Launching the First World War was by 1919 retroactively judged to have been a criminal act because of a visceral conviction rooted in the superadded horrors of 20th-century war:
In the view of the Allied and Associated Powers, the war which began on August 1, 1914, was the greatest crime against humanity and the freedom of peoples that any nation, calling itself civilised, has ever consciously committed.[17]  [The Allies] regard this war as a crime deliberately plotted against the life and liberties of the peoples of Europe.[18]  
King George V wrote about his cousin William II: “I look upon him as the greatest criminal known for having plunged the world into this ghastly war” and, in conversation with President Wilson, the King referred to “that unspeakable Kaiser whose crimes have scandalized the entire world.”[19]  Elihu Root said the Habsburg and Hohenzollern rulers were “unrepentant professional criminals”; Supreme Allied Commander Ferdinand Foch looked on the German military as “an army of scientific and convinced hooligans”; and Wilson thought Germany an “outlaw nation.”[20]

In a letter underlined by Wilson, Root specifically pointed to domestic criminal law as the source for the new international order:
If I make a contract with you and you break it, it is no business of our neighbour. You can sue me or submit, and he has nothing to say about it.  On the other hand, if I assault and batter you, every neighbour has an interest in having me arrested and punished, because his own safety requires that violence shall be restrained. At the basis of every community, lies the idea of organization to preserve the peace.  Without that idea really active and controlling there can be no community of individuals or of nations.[21]
In this vein, the Covenant established machinery to help League Members deal with wars of aggression.  Moreover, State responsibility for the commission of an offence was written into the leading article on “reparation” in the treaty with each one of the defeated Central Powers.  Germany, Austria, and Hungary were compelled to “accept” that their “aggression” had “imposed” the war on the Allies.[22]  Bulgaria and Turkey were made to recognize that they had joined a “war of aggression which Germany and Austria-Hungary waged against the Allied and Associated Powers.”[23]  The 1919-20 peace treaties thus began modern international law’s progressive stigmatization of the “war of aggression” which was ultimately criminalized by the 1945 Charter of the Nuremberg International Military Tribunal, which instituted individual responsibility for “crimes against peace.”[24]

League of Nations’ discourse on Hitler’s “sports palace” diplomacy

The United Nations International Law Commission in the 1960s used Sportpalast Diplomatie for German Chancellor Adolf Hitler’s “repeated, flagrant, and at times violent instances of deliberate breaches of treaty, not as a matter of minor administrative failing or of unanticipated judicial pronouncement, but as a matter of major politics conducted at the highest level and publicized through the mass media.”[25]  As foreshadowed in his 1925 book Mein Kampf, Hitler sought to break free of “the chains of the Versailles Treaty” and destroy the European order erected at the Paris Peace Conference.[26]  Calculated acts toward this end were his March 16, 1935 decree establishing universal military service to create a 550,000 man German army, and the March 7, 1936 German military occupation of the Rhineland — both measures violating the Versailles Treaty; the latter also contrary to the 1925 Locarno Pact.[27]


“Restoring the German people’s honour” was Hitler’s oft-repeated theme for domestic consumption.[28]  However, there was no honour-based argument in the very extensive League discussions about Germany’s treaty violations.  In this League context, there were two tangential references to “honour,” both referring to the Rhineland.  First, Hitler’s favourite foreign policy expert, Joachim von Ribbentrop justified the occupation before the Council with long “legal and practical political” arguments.  However, he celebrated the “restoration of the sovereignty of the Reich over its whole territory,” saying, “a heavy moral and political burden has been removed from the German people, which now at last... sees itself re-established in honour and freedom.”[29]  A sour note on honour, by contrast, sounded from France’s Prime Minister Léon Blum who assured the Assembly: “We have attacked the spirit of war, by which I mean those age-old conceptions of policy, morality and collective honour which were the justification of war.”[30]

Reacting to Germany’s unilateral denunciation of the arms limitation provisions of the Versailles Treaty, diplomats said nothing to the Council about “honour” or “dishonour.”  Instead, they portrayed Germany’s glaring treaty breach as a legal violation within the context of the League system.  For example, France’s Foreign Minister Pierre Laval said: “The peoples of the world know that respect for plighted faith... is not only a moral principle but is the living law of the League of Nations.”[31]  He affirmed France’s devotion to the League which he recognized as “the highest international authority” which has “declared that no country can repudiate its international undertakings... and has envisaged a more effective repression of such infractions of international law in the future.”[32]

Czechoslovakia’s Foreign Minister Edvard Beneš said:
All organised and civilised human society must be based on that most fundamental principle of international law: pacta sunt servanda.  Without this principle, the League of Nations would cease to have any meaning, any foundations, or any possibility of working normally.[33]  
After echoing these sentiments, Soviet Foreign Minister Maxim Litvinov compared the international community to a town, and countries to individual townsmen:
Let us suppose that in a certain town private citizens are allowed to carry arms.  Theoretically this right should be extended to all the inhabitants of such a town. Should, however, any citizen publicly threaten his fellow-townsmen... the municipality is scarcely likely to hasten to issue to such a citizen a licence to carry firearms, or quietly to tolerate his furnishing himself with such arms by illegal means.[34]  
Using the same metaphor, Spain’s Ambassador Salvador de Madariaga added:
The important thing when a man in the street carries a revolver is not to know what is its caliber or even if he has other weapons in his pocket, but to know whether he is a policeman or a criminal.
He believed that each country should have “equality in the right to possess armaments” but also “in the duty of utilising them in a legal, a juridical manner within the framework of a civilised society.”[35]

Reacting to Germany’s unilateral remilitarization of the Rhineland, French Foreign Minister Pierre-Étienne Flandin pleaded violations of the Versailles and Locarno treaties and told the Council that “the law should be applied.”[36]  He argued that “under international law, no one has the right to take the law into his own hands” and offered to have the dispute “settled by the highest international court — namely, the Permanent Court of International Justice, which is placed under the highest authority of the League of Nations.”[37]  In the same vein, Prime Minister Blum told the Assembly: “Two breaches of international law have been committed — the breach of the Covenant and the breach of a solemn Treaty.  Both have resulted in a de facto situation that is contrary to law.”[38]  


A similar juridical vein marked British Foreign Secretary Anthony Eden’s address to the Council:
A patent and incontestable breach of the provisions of the Treaty of Versailles relating to the demilitarised zone has been committed. [...] The question before us does not concern a few Powers only.  It is of concern to all who value the sanctity of treaty undertakings and the reign of law in international affairs.[39]

Conclusion

The 1935-36 League of Nations’ response to Hitler’s unilateral denunciation of key treaty provisions reminds us that, from 1919, discourse in the international States’ system occurred principally inside, a largely new, law-based matrix which was consciously antithetic to aristocratic honour.  With regard to treaty obligation specifically and to law and diplomacy generally, the preceding centuries had imagined the State as a gentleman with a highly developed sense of honour, readily vindicated on the battlefield. By contrast, the new League of Nations diplomacy tended to view the State as a middle-class citizen in a world community, governed by law and committed to the peaceful settlement of international disputes.

This Wilsonian Weltanschauung may have appeared somewhat naive from the standpoint of 1939, when there had to be amazement at the prescient realism of Marshall Foch, who in 1919 had known that the Versailles Treaty was just a twenty years’ truce.[40]  Today, however, Woodrow Wilson seems perhaps the greater prophet, because his compelling vision is consistent with long-term historical trends showing victories for liberal democratic States which, by their nature, do not wage war against each other.[41]  In this light, the abandonment of the rhetoric of honour can be seen as a healthy step away from the warlike ethos of aristocratic societies which, at very great cost, inordinately emphasized ideas of greatness and glory.

Notes to Part 13

[1].  William L. Shirer, The Collapse of the Third Republic: An Inquiry into the Fall of France in 1940 (New York, 1969), 829, 831.

[2].  “Letter to the President of the German Delegation covering the Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace,” Jun.16, 1919, British Foreign and State Papers, vol. 112:248.
[3].  Elihu Root to Edward Mandell House, Clinton, New York, Aug.16, 1918, PWW, vol. 49:269, read by President Wilson on Aug.18, 1918; further to my use of the term "privity of conflict," see at www.allenzhertz.com the February 2012 posting entitled "Peace Bilateral and International: Birth of 'International Peace and Security' as Legal Order and Term of Art."
[4].  Article 11, Covenant of the League of Nations.
[5].  For “the general Peace of Europe,” see Preamble, Treaty between Great Britain and Prussia, signed at Westminster, Jan.16, 1756, in CTS, vol. 40:293, and Preamble, Treaty between Great Britain and Prussia, signed at London, Apr. 11, 1758, in CTS, vol. 41:18; “the General peace,” Article 1, Treaty of Alliance between Austria, Great Britain, Prussia and Russia, signed at Vienna, Mar. 25, 1815, in CTS, vol 64:32; “the maintenance of the general peace,” Preamble and Title I, Convention for the Pacific Settlement of International Disputes, Jul. 29, 1899, signed at the Hague, in CTS, vol. 187:410-411.
[6].  Relevant analyses of "peace" were earlier offered in my 1980 Cambridge University thesis entitled "Peace Bilateral and International: 'International Peace and Security' as Legal Order and Term of Art," now posted (under February 2012) on this www.allenzhertz.com website; see also Helmut Rumpf, “The Concepts of Peace and War in International Law,” German Yearbook of International Law, vol. 27 (1984), 429-443.
[7]Parliamentary Papers, 1919, Cmd. 151, 12-19; Frederick Pollock and Frederic Maitland, The History of English Law Before the Time of Edward I (Cambridge, 1952), vol. 1:44-45; vol. 2:462-464; Frederick Pollock, “The King’s Peace,” in Oxford Lectures and Other Discourses (London, 1890), 88-89.
[8].  Shabtai Rosenne, The World Court: What It is and How It Works (Leiden, 1973), 21-26.
[9].  Shabtai Rosenne, Breach of Treaty (Cambridge, 1985), 9.
[10].  Versailles Treaty, Article 227; see James Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (London, 1982).
[11].  The first of Wilson’s “Fourteen Points,” see An Address to a Joint Session of Congress, Jan. 8, 1918, in PWW, Vol. 45:536.
[12].  “The Registration and Publication of Treaties as Prescribed under Article 18 of the Covenant of the League of Nations: Memorandum Approved by the Council, Meeting in Rome, May 19, 1920,” League of Nations Treaty Series , vol. 1 (1920), 7-13.
[13].  “One of the things that the League of Nations is intended to watch is the course of intrigue. Intrigue cannot stand publicity, and if the League of Nations were nothing but a great debating society, it would kill intrigue.” Address at the Metropolitan Opera, Mar. 4, 1919, PWW, Vol. 55:414.
[14].  On the Article 38 hierarchy, see Clive Parry, The Sources and Evidences of International Law (Manchester, 1965), 28; Sir Ian M. Sinclair, The Vienna Convention on the Law of Treaties (Manchester, 1973), 2.
[15].  Parry, “Foreign Policy and International Law,” 92-3.
[16].  Fritz Dickmann, “Die Kriegsschuldfrage auf der Friedenskonferenz von Paris 1919,” Historische Zeitschrift, vol. 197 (1963), 1-101; Herman Kantorowicz, Gutachten zur Kriegsschuldfrage 1914, ed. Imanuel Geiss (Frankfurt, 1967), 99-100.
[17].  “Letter to the President of the German Delegation covering the Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace,” Jun.16, 1919, British Foreign and State Papers, vol. 112:245.
[18].  “Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace,” Jun.16, 1919, British Foreign and State Papers, vol. 112:281-82.
[19].  Diary entry of Nov. 9, 1918, quoted by Kenneth Rose, King George V (London, 1983), 229; Diary of Wilson’s personal physician, Rear Admiral Cary T. Grayson, Feb. 23, 1919, PWW, vol. 55:228.
[20].    Elihu Root to Edward Mandell House, Clinton, New York,  Aug.16, 1918, PWW, vol. 49:272, read by President Wilson on Aug.18, 1918; Foch’s note on the military frontier with Germany, Jan. 10, 1919, PWW, vol. 55:504; Wilson’s address at the Metropolitan Opera, Mar. 4, 1919, PWW, vol. 55:414 and 417.
[21].    Elihu Root to Edward Mandell House, Clinton, New York, Aug.16, 1918, PWW, vol. 49:270, underlined by President Wilson on Aug.18, 1918.
[22].  Article 231, Versailles Treaty; Article 177, Treaty of Peace between Austria and the Allied and Associated Powers, signed at Saint-Germain-en-Laye, Sep.10, 1919, in CTS, vol. 226: 8-169; Article 161, Treaty of Peace between Hungary and the Allied and Associated Powers, signed at Trianon, Jun. 4, 1920, see http://www.lib.byu.edu/~rdh/wwi/versa/tri1.htm; former Foreign Secretary Lord Grey in a February 14, 1929 interview opined: “It was a very bad mistake to attribute the whole responsibility for the war to the Central Powers in the Treaty of Versailles,” see G. P. Gooch, Studies in Diplomacy and Statecraft (London, 1942), 107.
[23].  Article 121, Treaty of Peace between Bulgaria and the Allied and Associated Powers, signed at Neuilly-sur-Seine, Nov. 27, 1919, in CTS, vol. 226:332-434; Article 231, Treaty of Peace between Turkey and the Allied and Associated Powers, signed at Sèvres, Aug. 10, 1920, see http://www.lib.byu.edu/~rdh/wwi/versa/sevres1.html
[24].  Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (New York, 1992), 37-38, 41, 50-51, 57-77, 648.
[25].  Rosenne, Breach of Treaty, 11.
[26].  Mann, Deutsche Geschichte, 843-862; Ian Kershaw, Hitler 1889-1936: Hubris (London, 1998), 150, 316, 424, 443; Klaus Hildebrand, “War in Peace and Peace in War: On the Problem of Legitimacy in the History of the International Order, 1931-1941,” in his German Foreign Policy from Bismarck to Adenauer, 150-169.
[27]Germany’s military forces were limited to l00,000 men by Versailles Treaty, Article 163.  The Rhineland could be neither fortified nor occupied by German military forces by virtue of Versailles Treaty, Articles 42-43, “collectively and severally” guaranteed by the Treaty of Mutual Guarantee Between Germany, Belgium, France, Great Britain and Italy, done at Locarno, Oct.16, 1925, in League of Nations Treaty Series, vol. 54 (1926-27), 289-301; Kershaw, Hitler, 549-552, 582-589.
[28].  William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany, (New York, 1960), 284, 292.
[29]St. James Palace, London, Mar. 19, 1936, 5th Meeting, 91st Extraordinary Session of the Council, part 1, League of Nations Official Journal (April 1936), 337.
[30].  Jul.1, 1936, 19th Plenary Meeting, Records of the 16th Ordinary Session of the Assembly, part 2, League of Nations Official Journal, Special Supplement No.151 (1936), 28.
[31].  Apr. 16, 1935, 2nd Meeting, 85th Extraordinary Session of the Council, League of Nations Official Journal (May 1935), 550.
[32].  Apr. 17, 1935, 3rd Meeting, 85th Extraordinary Session of the Council, League of Nations Official Journal (May 1935), 564.
[33].  Apr. 16, 1935, 2nd Meeting, 85th Extraordinary Session of the Council, League of Nations Official Journal (May 1935), 554.
[34].  Apr. 17, 1935, 3rd Meeting, 85th Extraordinary Session of the Council, League of Nations Official Journal (May 1935), 557.
[35]Ibid., 559.
[36]St. James Palace, London, Mar.14, 1936, 1st Meeting, 91st Extraordinary Session of the Council, part 1, League of Nations Official Journal (April 1936), 313.
[37]St. James Palace, London, Mar. 20, 1936, 6th Meeting, 91st Extraordinary Session of the Council, part 1, League of Nations Official Journal (April 1936), 341.
[38].  Jul.1, 1936, 19th Plenary Meeting, Records of the 16th Ordinary Session of the Assembly, part 2, League of Nations Official Journal, Special Supplement No.151 (1936), 29.
[39]St. James Palace, London, Mar.18, 1936, 4th Meeting, 91st Extraordinary Session of the Council, part 1, League of Nations Official Journal (April 1936), 326-27.
[40].  Mann, Deutsche Geschichte, 903.
[41]Fukuyama, End of History, 262-265.

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