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. In this present posting, 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, 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.
The treaty not part of international law
French prelate and writer François Fénelon (1651-1715) spoke about international law and “the inviolable faith of peace treaties” as if they were two categories, separate in some unspecified way.
barrister Robert Plumer Ward (1765-1846) was aware of this characteristic distinction. He questioned “how far the particular rights conferred or taken away by Treaty, are the result of the Law of Nations” and concluded: Inner Temple
1920 World Court Statute, all of which reflect something of the historic dichotomy between “treaties” and “international law.”
That law permits us to agree upon certain points by Treaty, which points, when agreed upon, become legal by that Treaty, and not by a general Law of Nations; so that accurately speaking, all that the latter amounts to... is the one general proposition, that we may determine upon certain things by agreement.More to the point, Lorimer asked whether treaties are properly speaking part of international law. This is a significant question because a large body of evidence suggests that into the 20th century, the treaty per se tended to be excluded from the ambit of international law, then more commonly identified with customary law. This fine point can be appreciated by looking at some 19th-century references to contraventions of customary law, where the issue is one of “legality” or “illegality,” as opposed to examples of breach of treaty, where violation of international law is significantly not alleged. Relevant too are many of the pre-1914 arbitration treaties, the 1919 League of Nations Covenant and the
Custom: Lawler’s case
In 1860, the British law officers gave Foreign Secretary Lord John Russell a legal opinion on the conduct of Nicholls, a British warder from Gibraltar, who had crossed over into
to apprehend Patrick Lawler, an escaped British convict. Spain Spain’s Minister protested to Russell that, without Spanish consent, Nicholls had first stupefied Lawler with drugs or alcohol and then put him aboard the ferry to Gibraltar. Customary international law was then the source of the rule that a foreign State may not exercise criminal jurisdiction on another State’s territory. Because the law officers judged Nicholls’ behaviour to be “a plain breach of international law,” they advised that Lawler be returned to for release. Spain
blockade of the Confederacy USA
During the American Civil War (1861-1865), French and British textile workers were idle because Confederate cotton could not pierce a
naval blockade proclaimed by President Lincoln in April 1861. Between the USA USA and , the law of blockade was then almost entirely customary. British Prime Minister Lord Palmerston described for Queen Britain Victoria a House of Commons debate as to whether the blockade was “consistent with the law of nations” or “illegal” as a “violation of principles of international law.” Discussing this “question of international law,” Foreign Secretary Russell assured Parliament that the USA blockade was “such as the law of nations recognizes.” The British government was pleased with a law officers’ assessment that the USA USA blockade was legal because otherwise there would have been added public pressure for to intervene on the Confederacy’s side. Britain
During the American Civil War,
Custom: Russian soldiers in Ottoman
The Panslavonian feeling in Russia... may make it impossible, or at least very difficult, for the [Russian] Emperor to prevent the influx of Russian officers and soldiers into Serbia, what we and Turkey have denounced as contrary to international law.
Treaty: end of the
A February 1846 Polish insurrection led
Austria, Prussia and Russia to extinguish the — a “free city” under the 1815 Vienna Treaty. Not having consented to this change, Cracow Republic Britain and France denounced Cracow’s annexation to as the first direct and open violation of the 1815 treaty. However, the abundant diplomatic papers about the unilateral alteration of Austria ’s status are significantly without any allegation of breach of international law. Rather, British Foreign Secretary Lord Palmerston took the Northern Powers to task for “a violation of positive stipulations contained in the General Treaty of Vienna” and stressed that “Her Majesty’s Government [is] deeply impressed with the conviction that it is above all things important that the engagements of Treaties should at all times be faithfully observed.” Cracow
With French public opinion favouring the Poles, Foreign Minister François Guizot “solemnly protested against the suppression of the
as an act positively contrary to the letter and spirit of the June 9, 1815 Vienna Treaty.” Guizot instructed Cracow Republic France’s Ambassador in Vienna to tell Austria’s Chancellor Prince Metternich:
After the long and redoubtable agitations which have so profoundly shaken
Europe, it is upon respect for treaties and the rights which they consecrate that the European order is founded and maintained. No power can free itself from them, without at the same time freeing the others. has never given an example of a similar injury to the policy of maintaining peace. France has not forgotten the sad sacrifices imposed upon her by the 1815 treaties. She could therefore rejoice in an act which would authorize her — by just reciprocity — henceforth to consult only the calculation of her future interests. However, now it is France who recalls to the faithful observation of these treaties the powers which have derived the greatest advantages from them. Now, it is France that is preoccupied above all with maintaining acquired rights and respecting the independence of States. France
Treaty: denunciation of the
Black Sea clauses
Black Sea was neutralized by the 1856 Paris Treaty ending the Crimean War. The Russians felt humiliated that they lacked the right to maintain a Black Sea fleet or fortify their seacoast there. Quickly reacting to the new political reality created by France’s stunning defeat in the Franco-Prussian War, Russian Foreign Minister Prince Alexander Gorchakov in October 1870 tried to repudiate unilaterally the Paris Treaty’s Black Sea clauses. Referring to “the successive changes to which, during these last years, the transactions considered to be the foundation of Europe’s equilibrium have been subjected,” he sought to justify Russia’s denunciation:
The Treaty of 18/30 March 1856, moreover, has not escaped the derogations which have hit most of the European transactions, and in the presence of which, it would be difficult to affirm that the written law — founded on respect for Treaties as the basis of public law and the rule for relations between States — has maintained the same moral sanction which it was able to have in other times.
Rejecting Gorchakov’s reasoning, British Prime Minister William Gladstone sent Foreign Secretary Lord Granville a memorandum which, significantly, did not refer to a Russian violation of international law:
We have here an allegation that certain facts have occurred which in the judgment of Russia are at variance with certain stipulations of the Treaty: and, the assumption is made that Russia, upon the strength of her own judgment as to the character of the facts, is entitled to release herself from certain other stipulations of that instrument. The assumption is limited in its practical application to some of the provisions of the Treaty: but as every Treaty in point of obligation is one and indivisible, the assumption of a title to renounce any one of its terms is ipso facto an assumption of a title to renounce the whole.
The shell which Lord Granville has been led to expect, has burst, but in the most violent and illegitimate manner. Perhaps if the thing was to be done, it is as well that the Russians have put themselves flagrantly in the wrong. If they wish to succeed by negotiation, it obliges them to go back. If they mean to make the attempt by the threat of brute force, they put against them whatever may remain of public opinion. But if they succeed, it puts an end at once to the value of any treaty.... If they had come to
Europeto ask for a revision, it would have been difficult to refuse to consider the merits of the question. ’s present mode of proceeding is perfectly inadmissible. Russia
Treaty: tripartite guarantee of
The 1856 Triple Treaty provides another example showing that failure to live up to treaty terms was understood as a “breach of faith” but not as a violation of international law.
Britain, France and Austria had promised to protect the “independence and integrity of the Ottoman Empire, sanctified by the Treaty of Paris.” The Triple Treaty stipulated that any violation of the 1856 Paris Treaty would be a casus belli obliging the three powers to agree necessary measures with the Ottoman government and determine “among themselves without delay the use of their military and naval forces.” The Triple Treaty was tested in April 1877, when Russia was about to attack the Ottoman Empire. By then, the massacre of twelve thousand Christians in Ottoman Bulgaria had so stirred British public opinion that fighting for the Turks was politically impossible. Among other excuses, Foreign Secretary Lord Derby pleaded the doctrine of changed circumstances, rebus sic stantibus: Russia
No Treaties can be or are intended to be eternal. They are framed with reference to existing circumstances, and though I do not say whether that is so or is not the case with regard to the Treaty of 1856, yet nothing has been more common in European diplomacy than the recognition of the fact that Treaties do by the lapse of time and the force of events become obsolete. I do not think that it would be a fair or satisfactory conclusion to come to either that you must be eternally bound by a Treaty, made long ago under conditions wholly different from those now existing, or that you are to be held guilty of a breach of faith because you consider it to be no longer binding.
Treaty: Batum as free port
A fourth example of failure to allege breach of international law is provided by British reaction to Russia’s 1886 declaration that the Black Sea harbour of Batum would no longer be a free port as stipulated in the 1878 Berlin Treaty. In
Britain, anti-Russian feeling had already been running high because of strong differences over . Commenting on this “violation of the Treaty of Berlin,” British Foreign Secretary Lord Rosebery wrote to Queen Bulgaria that: Victoria
Victoria asked her Foreign Secretary what he intended to do about “the astounding news of the insolent and dishonest conduct of in declaring that Batoum is no longer a free port.” Lord Rosebery had the British Ambassador in Russia St. Petersburg read the Russian Foreign Minister a dispatch charging with “an infraction of the Treaty of Berlin” casting doubt on “the binding force and sanctity of international engagements.” But, as in the 1846, 1870 and 1877 examples, significantly omitted was any charge that international law had been violated by the alleged breach of treaty. Russia
he cannot disguise from himself the certainty that this is meant as a slap in the face of this country. Materially, the question has no importance, as Batum as a free port has no value. But as an act of insolent perfidy it stands almost alone.... [This unilateral measure] could not be foreseen, even by those who thought they had plumbed the lowest depths of Russian dishonesty.Sharing indignation,
Arbitration treaties, Covenant &
World Court Statute
Referring to the Permanent Court of Arbitration established by the 1899 Hague Convention for the Pacific Settlement of International Disputes, France and Britain in 1903 made a general arbitration agreement soon copied in more than a score of similar treaties by the same and other countries, including the USA. Identifying disputes amenable to arbitration, the agreement disjunctively pointed to “differences which may arise of a legal nature, or relating to the interpretation of Treaties existing between the two Contracting Parties.” This separation of legal and treaty disputes was replicated — for example — in a 1903 Franco-Italian convention and in 1908 USA treaties with Mexico, Italy, Britain, Norway, Portugal, and Spain. Other uses of the identical disjunctive text appear in the 1912 general arbitration agreement between Panama and Spain, the 1913 treaties between Austria-Hungary and Switzerland and between Portugal and Sweden and in 1914 British conventions with both Switzerland and Portugal. Although applying to “all disputes,” 1911 treaties between
Observing that “the term international law has very often been used as not to include treaties,” Clive Parry pointed to “the strikingly late examples of this usage in the text of the Covenant of the
League of Nations and even in that of the Statute of the World Court.” In the Covenant, the preamble’s aims of co-operation and peace are to be reached “by the firm establishment of the understandings of international law as the actual rule of conduct among Governments.” There then follows a separate call for “the maintenance of a scrupulous respect for treaty obligations in the dealings of organized peoples with one another.” Covenant, Article 13, similarly contrasts “disputes as to the interpretation of a treaty” with differences “as to any question of international law.” As for the World Court Statute, Article 36(2) “while conferring quasi-compulsory jurisdiction in ‘any question of international law’, provides also for a similar jurisdiction with respect to ‘the interpretation of a treaty’.”
Notes to Part 3
. François Fénelon, Examen de conscience sur les devoirs de la royauté composé pour l’instruction de Louis de France, Duc de Bourgogne, in Oeuvres complètes de Fénelon, Archevèque de Cambrai (Paris, 1850), vol. 7:85-102, at § 32:94; his distinction between la foi inviolable des traités on the one hand and droit des gens or droits des nations on the other hand dovetails with the two elements of his pacifist prescription implicitly critical of Louis XIV, see ibid., 95: “To give the world some consistency, and nations some security, above all else preference must be given to two points which are like the earth’s two poles: first, a peace treaty sworn between two princes is for them inviolable and must always be taken in its most natural sense and interpreted according to immediate performance [i.e. early State practice under the treaty]; second, peaceable and uninterrupted possession, from the time that jurisprudence allows for the least favourable prescriptions, must give the one in possession a certain and legitimate property right, whatever his possession’s original defect. Without these two fundamental rules, there is neither rest nor security for mankind.”
. Robert Plumer Ward, An Enquiry into the Foundation and History of the Law of Nations from the Time of the Greeks and Romans to the Age of Grotius (
, 1795), vol. 2:236-240. London
. Lorimer, Institutes, vol. 1:37.
. Parry, “Foreign Policy and International Law,” 91.
. Clive Parry, The Sources and Evidences of International Law (
, 1965), 37. Manchester
. See “Law Officers’ Opinions,” in Encyclopedic Dictionary of International Law, ed. John Grant, Anthony Parry, Clive Parry and Arthur Watts (New York, 1986), 211; re legal advice, see Ray Jones, The 19th Century Foreign Office: An Administrative History (London, 1971), 69-73.
. Martens, Bk. III, Ch. 3, § 24:111; Alphonse Rivier, Principes du droit des gens, vol. 1 (
Paris, 1896), 288-289; Federico Diez de Medina, Nociones de derecho internacional moderno, 5th ed. ( , 1905), Part 1, Ch. 1, § 19:140-143. Paris
. Clive Parry, ed. Law Officers’ Opinions to the Foreign Office 1793-1860 (Westmead, 1970), vol. 84:422-426; vol. 85:50-56.
. Brian Jenkins,
Britain and the War for the Union, vol. 1 (Montreal-London), 229-232, 244-248, 254-257, 263-265.
. Lawrence’s Wheaton, 819-845; Henry Sumner Maine, International Law: A Series of Lectures Delivered Before the University of Cambridge, 1887 (New York, 1888), 107-122; William Edward Hall, A Treatise on International Law, 8th ed., ed. Alexander Pearce Higgins (Oxford, 1924), 845-871.
. Viscount Palmerston to Queen Victoria, Mar. 7, 1862, The Letters of Queen Victoria, [hereinafter LQV] 2nd ser., ed. George Earle Buckle, vol. 1 (
, 1926), 22-23. London
. Mar. 10, 1862, Lords, Parl. Deb., 3rd ser., vol. 165:1237-1243.
Jenkins, Britain and the War for the Union, vol. 1:255-256.
. William Beach Lawrence, “The Case of the
Trent,” in Lawrence’s Wheaton, Appendix No. 3:939-960, at 950: “So far as the United States and are concerned, there is no subsisting treaty relating to this subject, and the only one which ever existed between them, at all bearing on it, was that of 1794. It contained no article as to persons, nor could it well have done so, without encountering the inadmissible British municipal pretension of the impressment of seamen from neutral merchantmen....” Also England Jenkins, Britain and the War for the Union, vol. 1:181-202.
. Viscount Palmerston to Queen
Victoria, Nov. 29, 1861, in LQV, 1st ser., ed. Arthur Christopher Benson and Viscount Esher, vol. 3 ( , 1907), 595-596. London
. To Foreign Secretary Lord John Russell, Dec. 1, 1861, ibid., 597-598; a right of humanitarian intervention to aid a “suffering people against tyranny” was debated in Apr. 1860 correspondence between Russell and the Queen, see ibid., 505-506.
Jenkins, Britain and the War for the Union, vol. 1:211-228.
. Diez de Medina, Nociones de derecho internacional moderno, § 19:140-143.
. Memorandum by Queen
, Oct. 17, 1876, LQV, 2nd ser., vol. 2:487-488. Victoria
. Article 1, Additional Treaty between Austria, Prussia and Russia respecting Cracow, signed at Vienna, 21 Apr. (3 May) 1815, in CTS, vol. 64:159-169; Article 6, Act of the Congress of Vienna, signed between Austria, France, Great Britain, Portugal, Prussia, Russia and Sweden, 9 June 1815, ibid., 453-493, at 458; Article 1, Convention between Austria, Prussia and Russia for the Definitive Incorporation of Cracow in Austria, signed at Berlin, 3 (15) Apr. 1846, in CTS, vol. 99:411-415; Wheaton, History of the Law of Nations, 441-445; Lawrence’s Wheaton, 59, 708.
. British and Foreign State Papers: 1846-1847, vol. 35 (
, 1860), 1042-1107. London
. Viscount Palmerston to Viscount Ponsonby, Nov. 23, 1846, ibid., 1082-1085.
. Guizot to Count Flahaut,
, Dec. 3, 1846, ibid., 1092-1095. Paris
. Articles 11, 13, General Treaty for the Re-establishment of Peace between Austria, France, Great Britain, Prussia, Sardinia and Turkey, and Russia, signed at Paris, 30 Mar. 1856, in CTS, vol. 114:409-420, at 414-415.
. “The denunciation was a symbolic gesture” because Russia then had no interest in a Black Sea fleet, see A.J.P. Taylor, The Struggle for Mastery in Europe: 1848-1918 (Oxford, 1954), 215-216; for the Black Sea question, see David J. Bederman, “The 1871 London Declaration, Rebus Sic Stantibus and a Primitivist View of the Law of Nations,” American Journal of International Law, vol. 82 (1988), 1-40; W.E. Mosse, The Rise and Fall of the Crimean System 1855-1871: The Story of a Peace Settlement (London, 1963), 158-207; Coleman Phillipson, The Question of the Bosphorus and the Dardanelles (London, 1917), 105-109; Serge Goriainow, Le Bosphore et les Dardanelles (Paris, 1910), 222-238; McNair, Law of Treaties, 494-497.
. Circulaire aux Représentants de Sa Majesté L’Empereur près les Cours signataires du Traité du 18/30 Mars 1856, Zarskoé-Sélo, le 19/31 Octobre 1870, Document Nr. 217, Die Große Politik der Europäischen Kabinette 1871-1914: Sammlung der Diplomatischen Akten des Auswärtigen Amtes, ed. Johannes Lepsius, Albrecht Mendelssohn Bartholdy, Friedrich Thimme, vol. 2 (Berlin, 1922), 5-9.
. Circa Nov. 10, 1870, Doc. Nr. 356, The Political Correspondence of Mr. Gladstone and Lord Granville 1868-1876, ed. Agatha Ramm, Royal Historical Society Publications, Camden 3rd ser., vol. 81 (London, 1952), Part 1: 1868-1871:154-156.
. Cf. Gladstone’s memorandum with Granville’s dispatch, ibid., 154-155, n. 4; for the Nov. 10, 1870 dispatch to St. Petersburg, see McNair, Law of Treaties, 495-497.
. To Queen Victoria, Nov. 12, 1870, LQV, 2nd ser., vol. 2:82-83; ibid., 87-88, Nov. 26, 1870, Prussia’s Queen Augusta wrote not about violation of international law but rather about “Russia’s violation of the  Treaty,” “arbitrary violation of guaranteed contracts” and “breach of faith and violation of European law.”
. General Treaty for the Re-establishment of Peace between
Austria, France, Great Britain, Prussia, Sardinia and Turkey, and Russia, signed at , 30 Mar. 1856, in CTS, vol. 114:409-420. Paris
. Treaty between Austria, France and Great Britain Guaranteeing the Independence and Integrity of the Ottoman Empire, signed at Paris, 15 Apr. 1856, in CTS, vol. 114:497-499; re this treaty, see Lillian M. Penson, “Obligations by Treaty: Their Place in British Foreign Policy, 1898-1914,” in Studies in Diplomatic History and Historiography in Honour of G.P. Gooch, ed. Arshag Ohan Sarkissian (London, 1961), 85-86; Mosse, Rise and Fall of the Crimean System, 185-201.
. A.J.P. Taylor, The Trouble Makers: Dissent over Foreign Policy 1792-1939 (
, 1957), 74-86. London
. Apr. 19, 1877, Lords, Parl. Deb., 3rd ser., vol. 233:1436-1437.
. Article 59, Treaty between Austria-Hungary, France, Germany, Great Britain, Italy, Russia and Turkey for the Settlement of Affairs in the East, signed at Berlin, 13 July 1878, in CTS, vol. 153:171-191, at 189; pop.
8,671 in 1882, Batum was later Russia’s main Black Sea oil port, see Ch. Quelquejay, “Batumi,” in Encyclopaedia of Islam, 2nd ed., vol. 1 (Leiden, 1979), 1108-1109; Akdes Nimet Kurat, Türkiye ve Rusya (Ankara, 1970), 600-604; for the free port’s closure, see Athanassios Vamvoukos, Termination of Treaties in International Law: The Doctrines of Rebus Sic Stantibus and Desuetude (Oxford, 1985), 72-74; A. L. Kennedy, Old Diplomacy and New 1876-1922: From Salisbury to Lloyd-George (London, 1922), 60-62.
. A.J.P. Taylor, “International Relations,” in The New
Cambridge Modern History, vol. 11: Material Progress and World-Wide Problems 1870-1898, ed. Sir F.H. Hinsley ( , 1967), 556-557. Cambridge
. Foreign Secretary Lord Rosebery to British Ambassador,
, July 13, 1886, in McNair, Law of Treaties, 498-499. St. Petersburg
. Lord Rosebery to Queen
Victoria, July 3, 1886, LQV, 3rd ser., ed. George Earle Buckle, vol. 1 ( , 1930), 152-153. London
Victoria to Lord Rosebery, , July 4, 1886, ibid., 153-154. Windsor Castle
. Foreign Secretary Lord Rosebery to British Ambassador, St. Petersburg, July 13, 1886, in McNair, Law of Treaties, 498-499; also Doc. 173, in Foundations of British Foreign Policy from Pitt (1792) to Salisbury (1902), ed. Harold Temperley and Lillian M. Penson, new impres. (New York, 1966), 436-441.
. CTS, vol. 187:410-428.
. Agreement between France and Great Britain for the Settlement by Arbitration of Certain Classes of Questions which may arise between the two Governments, 14 Oct. 1903, signed at London, in CTS, vol. 194:194-195; Hudson, International Tribunals, 7; James Brown Scott, The Hague Peace Conferences of 1899 and 1907: A Series of Lectures Delivered Before the Johns Hopkins University in the Year 1908 (Baltimore, 1909), vol. 1:329.
. Arbitration Convention between
France and Italy, 25 Dec. 1903, signed at , in CTS, vol. 194:365. Paris
. CTS, vol. 206,
USA arbitration treaties with Mexico (288-289), Italy (354), Britain (360), Norway (363-364), Portugal (368-369), and (418-419). Spain
. CTS, vol. 216:351-352.
. CTS, vol. 218:354-356.
. CTS, vol. 219:30-31.
. CTS, vol. 220:85-86, 357-358.
. CTS, vol. 214:153-156, 276-279.
. CTS, vol. 215:317-319.
. CTS, vol. 220:141-143.
. Parry, Sources and Evidences, 36.
. Part 1, Preamble, Covenant of the League of Nations, 28 June 1919, signed at
, in CTS, vol. 225:396-406. Versailles
. Not in the Feb. 14, 1919 draft, the Article 13 distinction between disputes as to “the interpretation of a treaty” and “any question of international law” was added on advice from former USA Secretary of State Elihu Root, see Michael Dunne, The United States and the World Court, 1920-1935 (New York, 1988), 22-26; Arthur Walworth, Wilson and His Peacemakers: American Diplomacy at the Paris Peace Conference, 1919 (New York, 1986), 306.
. Parry, Sources and Evidences, 37.