Wednesday, March 7, 2012

11. Treaty Obligation from the Protestant Reformation to 1919: Part 11 Gentlemen's Agreements

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.  Here in this posting, 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 twentieth-century discourse about treaties as legally binding.


All treaties 'gentlemen’s agreements' before 1919?

The distinction between an obligation enforceable in court and an obligation binding in honour alone is known to English common law.  Under appropriate circumstances, a private contract can be drafted so as specifically to negate the intention to be legally bound.1  For example, in 1923 Lord Atkin found “nothing necessarily absurd in businessmen seeking to regulate their business relations by mutual promises which fall short of legal obligations, and rest on obligations of honour or self-interest or both.”2  English law calls such a transaction a “gentlemen’s agreement”3— a term which twentieth-century public international law has borrowed for an international understanding, in which the parties have specifically indicated their intention not to create legal obligations.4

The relationship between the nineteenth-century treaty and classical international law was very much like the one which now prevails between the “gentlemen’s agreement” and today’s international law.  For example, the 1975 Helsinki Final Act is “not eligible for registration under Article 102 of the Charter of the United Nations.”5  This means that the Helsinki Final Act may not be invoked before any United Nations organ including the ICJ.6  Thus, legal remedies for breach are explicitly excluded. However, Title 10 specifies that the Helsinki Final Act is nonetheless governed by the doctrine which demands “fulfillment in good faith of obligations under international law.”

The distinction between “good faith” agreements and legally binding treaties was necessarily absent from international law before 1919, when all treaties were “gentlemen’s agreements.”7  An arguable exception were treaties with effective compromissory clauses providing for binding third-party arbitration.  However — as noted above — even the obligation to execute arbitral awards was binding, not in law, but in “good faith.”8  For example, compliance with awards was explicitly “confided to the honour of the States signatory to the present Treaty” in general arbitration agreements between Argentina and Italy (1898)9 and Bolivia and Peru (1901).10

A clear juridical understanding of the modern concept of the gentlemen’s agreement is complicated by some confusion between treaties with stipulations carefully drafted to create clear obligations — whether binding in honour or law — and treaties with clauses cleverly written to avoid creating obligation of any kind.  According to Bernard:
A nation is bound to do that which it has agreed to do, neither less nor more; and the notion that the absence of a clear engagement can be supplemented by the sentiment of honour — that is, by the strength of a motive which has nothing to operate upon — is a chimera....  Honour affords no key to the meaning of an agreement; honour will not create an agreement where there is none.11


Any 'gentlemen’s agreements' before 1919?

A 1912 exchange of letters between Sir Edward Grey and France’s Ambassador Paul Cambon has been adduced as an “undisputed example of the traditional type of gentlemen’s agreement.”12  This assessment is correct to the extent that all pre-1919 treaties were binding in honour alone. However, it is misleading to say this Anglo-French exchange “constituted the written basis for the Entente Cordiale.”  The text itself lacks language capable of creating a Franco-British alliance, binding in honour or otherwise. To the contrary, the letters and travaux pr√©paratoires explicitly reject any obligation “to co-operate in war.”  However, the correspondence did create a definite obligation (binding in honour) to consult in the event of a reasonable expectation of “an unprovoked attack by a third power.”13

In 1923, Washington and Tokyo arguably offended the intertemporal rule by using the phrase “gentlemen’s agreement” or “so-called gentlemen’s agreement” for an explicitly voluntary and non-conventional arrangement arising from several notes exchanged from 1907 to 1911.14  In those years, Japan had made declarations about readiness to adopt and maintain certain domestic measures to limit labourers’ emigration to the USA which, in turn, refrained from enacting immigration laws discriminating against Japanese nationals.  This “frank and cordial cooperation” was arguably terminable at will inter alia because made “without prejudice to the inherent sovereign right of either country to limit or control immigration to its own domains or possessions.”15  After Congress initiated (1923) discriminatory legislation, Japan protested (1924) that ending the “gentlemen’s agreement” would conflict with the “high principles of justice and fair-play” of the American people and raise “the question of the good faith and therefore of the honour of their Government, or at least of its executive branch.”16  

What flows from this 1924 contention that the explicitly non-conventional understanding had, in 1911, been intended to be binding in honour?  Only the possibility that, in 1911, some non-treaty, international agreements could, like treaties, be binding in honour; but not the anachronism of carrying back to 1911, the post-1919 view of treaties binding in law and gentlemen’s agreements in honour.

Notes to Part 11


[1].  Patrick S. Atiyah, An Introduction to the Law of Contract, 2nd ed. (Oxford, 1971), 92-93; G.H. Treitel, The Law of Contract, 4th ed. (London, 1975), 98.
[2]Rose and Frank Company v. J.R. Crompton and Brothers Limited, and Others [1923] 2. K.B. 261, at 293; affirmed [1925] A.C. 445.
[3]Jones v. Vernon’s Pools Limited [1938] 2 All ER 626, KBD, per Atkinson, J.
[4].  Oscar Schachter, “The Twilight Existence of Nonbinding International Agreements,” American Journal of International Law, vol. 71 (1977), 296-304; Pierre Michel Eisemann, “Le gentlemen’s agreement comme source du droit international,” Journal du droit international, vol. 106 (1979), 326-348, at 347-348.

[5].  Conference on Security and Cooperation in Europe: Final Act, Aug. 1, 1975, International Legal Materials, vol. 14 (1975), 1292, at 1325.
[6].  Charter of the United Nations, Article 102(2).
[7].  Grotius, Bk. II, Ch. 16, § 11:414.
[8].  Oppenheim, International Law, vol. 2, §§ 13, 19:16, 24-25.
[9].  “Le jugement n’est pas susceptible d’appel et il est confi√© √† l’honneur des nations signataires du pacte,” Article 13, Arbitration Treaty between the Argentine Republic and Italy, 23 July 1898, signed at Rome, in CTS, vol. 186: 378-379; also in Documents Relating to the Program of the First Hague Peace Conference, Doc. No. 14:103-105.
[10].  Article 12, General Treaty of Arbitration between Bolivia and Peru, 21 Nov. 1901, signed at La Paz, in CTS, vol. 190:217-220, at 219.
[11].  Bernard, “The Obligation of Treaties,” 200.
[12].  Wilfried Fiedler, “Gentlemen’s Agreement,” in Encyclopedia of Public International Law, dir. Rudolf Bernhardt, vol. 2  (Amsterdam, 1995), 546-547; British Documents on the Origins of the War 1898-1914, vol. 10, part 2 (London, 1938), Nov. 22-23, 1912, Nos. 416-417: 614-615.
[13]Ibid., 600-615; K.A. Hamilton, “Great Britain and France, 1911-1914,” in British Foreign Policy under Sir Edward Grey, 324-341, at 335-336; a treaty obligation to aid France would have split the Liberal Party, see Wilson, Policy of the Entente, 32-33, 56, 86, 90, 96, 122, 134.
[14]Papers Relating to the Foreign Relations of the United States 1924, vol. 2:334-411.
[15].   USA Memorandum (Jan. 23, 1911) to Japanese Ambassador, cited by USA Secretary of State Charles Evans Hughes to Japanese Ambassador Hanihara, June 16, 1924, ibid., 407.
[16].  Japanese Ambassador Hanihara to USA Secretary of State Charles Evans Hughes, Apr. 10, 1924, ibid., 373.

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