Wednesday, March 7, 2012

10. Treaty Obligation from the Protestant Reformation to 1919: Part 10 USA and the Honour of Treaties

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.).


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 is the subject of Part 9. This present posting, Part 10 shows that "honour" was also an integral part of 18th-  and 19th-century USA thought about treaty obligation.  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.

Concept of honour relevant to USA?

Harvard University sociology professor Daniel Bell (1919–2011) doubted whether the concept of honour applies in the USA or is limited “primarily to the European scene.”1  However, honour was more than an ancien rĂ©gime peculiarity, as demonstrated by the 1776 Declaration of Independence, where John Hancock and other signatories pledged “our Lives, our Fortunes and our sacred Honor.”  As early as the 1830’s, De Tocqueville described how honour was understood differently in the domestic societies of democratic USA and aristocratic Europe.2  Yet USA rhetoric about international law and foreign affairs continued to employ “honour” in a way generally consistent with European discourse about relations between States.  For example, Henry Wheaton (1842) refers to the “independence and honour of the national flag” and hopes that “matters in dispute between the British and American Governments may admit of a pacific and satisfactory adjustment, consistently with the honour and essential interests of both nations.”3  Very much in the same vein are earlier quotations from Woolsey, Root and Roosevelt.

Did U.S. Supreme Court focus on honour?

The Cunard Steamship Company challenged the validity of a head tax on immigrants introduced by Congressional legislation said to violate prior USA treaties with a number of friendly countries.  In 1884, the Supreme Court upheld Congress’ right to pass laws inconsistent with prior USA treaties.  Justice Samuel F. Miller explained:
A treaty is primarily a compact between independent nations, and depends for the enforcement of its provisions on the honour and interests of the governments which are parties to it.  If these fail, its infraction becomes the subject of international reclamation and negotiation, which may lead to war to enforce them.  With this judicial courts have nothing to do and can give no redress.4 
Similarly, in another 1884 Supreme Court case on alien labourers’ right of entry under USA treaties with China, Justice John M. Harlan said:
Aside from the duty imposed by the constitution to respect treaty stipulations when they become the subject of judicial proceedings, the court cannot be unmindful of the fact that the honor of the government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and protected.5

Did Woodrow Wilson see treaties binding in honour?

As an academic, Woodrow Wilson (1885) suggested that shared concern for the USA’s honour was a factor mitigating the Senate’s exercise of its broad constitutional authority with respect to treaty making:
His [i.e. the President’s] only power of compelling compliance on the part of the Senate lies in his initiative in negotiation, which affords him a chance to get the country into such scrapes, so pledged in the view of the world to certain courses of action, that the Senate hesitates to bring about the appearance of dishonor which would follow its refusal to ratify the rash promises or to support the indiscreet threats of the Department of State.6
Calling for ratification of several arbitration treaties and welcoming news that thirty-one countries had agreed to negotiate for bilateral permanent commissions of inquiry, President Wilson linked treaties to honour in the 1913 State of the Union Address:
There is only one possible standard by which to determine controversies between the United States and other nations, and that is compounded of these two elements: Our own honour and our obligations to the peace of the world. A test so compounded ought easily to be made to govern both the establishment of new treaty obligations and the interpretation of those already assumed.7
In a wide-ranging 1919 discussion of treaty obligation in the Senate Foreign Relations Committee, Wilson heard Senator John Sharp Williams pronounce: “Bound in honor is the only way a nation is bound in international affairs.”8

Was U.S. honour tested by 1912 Panama tolls exemption?

In 1901, the USA and Britain signed the Hay-Pauncefote Treaty stipulating that the future Panama Canal would be open to ships of all nations “on terms of entire equality,” without discrimination as to “charges of traffic”—an obligation insulated from any “change of territorial sovereignty or of international relations of the country or countries traversed.”9  Under President Taft, Congress passed the 1912 Panama Canal Act which excused from tolls domestic “vessels engaged in the coastwise trade of the United States.”  Taft’s successor, Woodrow Wilson told his countrymen that foreign States universally regarded the exemption as a treaty violation calling into question the USA’s willingness to live up to “the principle of carrying out an honest bargain.”10  From London, USA Ambassador Walter Hines Page reported:
The English Government and people without regard to party... are of one mind about this: they think we have acted dishonourably.  They really think so — it isn’t any mere political or diplomatic pretense.  We made a bargain they say, and we have repudiated it.  If it were a mere game or bluff or party contention — that would be one thing.  We could ‘bull’ it through or live it down.  But they look upon it as we look upon the repudiation of a debt by a state.  Whatever the arguments by which the state may excuse itself, we never feel the same toward it — never quite so safe about it.  They say, ‘You are a wonderful nation and a wonderful people.  We like you. But your Government is not a Government of honour.  Your honourable men do not seem to get control.’ You can’t measure the damage that this does us.  Whatever the United States may propose till this is fixed and forgotten will be regarded with a certain hesitancy.  They will not fully trust the honour of our Government.11  
In a  letter to Wilson, Page wrote that he had been told by “as friendly a man” as Rudyard Kipling: “You know your great Government, which does many great things greatly, does not lie awake of nights to keep its promises.”12

“A clear violation of the terms of the Hay-Pauncefote Treaty”13 was the assessment of President Wilson, who had taught international law at Princeton University.  “Tolls — Honour of the country — peace of the world” figured in his autograph draft outline for the December 2, 1913 Annual Message to Congress.14  Referring to the tolls exemption, he told newsmen: “It is very awkward to deal with foreign nations no one of which believes that you will keep your promises and thinks that it has proof that you will not.”15  Displaying his skills as party leader, Wilson lobbied strenuously until June 1914 when most of his fellow Democrats joined prominent Republicans in repealing the discriminatory tolls exemption provision16

Notes to Part 10

1.  Daniel Bell, The End of Ideology, rev. ed. (Cambridge, Mass., 1965), 58.
2.  De Tocqueville, Democracy in America, vol. 2, Ch. 18: Of Honor in the United States and in Democratic Communities, 242-255.
3Wheaton, Enquiry into the Validity of the British Claim to a Right of Visitation, 3-5.
4Cunard Steamship Co. v. Robertson; Edye v. Robertson (Head Money Cases) 112 US 580 S Ct 247, at 254.
5Chew Heong v. United States 112 US 536 S Ct 255, at 256.
6Congressional Government (1885), reprinted in PWW, vol. 4:13-179, at 130.
7.  State of the Union Message to Congress, Dec. 2, 1913, PWW, vol. 29:3-4.
8.  President Wilson’s Conversation with the Senate Foreign Relations Committee, Conference at the White House, Aug. 19, 1919, PWW, vol. 62:339-411, at 368.
9.  Articles 3(1) and 4, Treaty between Great Britain and the United States relative to the Establishment of a Communication by Ship Canal between the Atlantic and Pacific Oceans, Washington, 18 Nov., 1901, in CTS, vol. 190:215-217; see Sir Hersch Lauterpacht and Sir R.Y. Jennings, “International Law and Colonial Questions, 1870-1914,” in The Cambridge History of the British Empire, ed. E.A. Benians, Sir James Butler and C.E. Carrington, vol. 3 (Cambridge, 1959), 686-687.
10.  President Wilson’s Address to Congress on Panama Canal Tolls, Mar. 5, 1914, PWW, vol. 29:312-313; Wilson’s Remarks at a Press Conference, Washington, Mar. 30, 1914, ibid., 384-385.
11.  Page to Edward M. House, Aug. 25, 1913, Letters of Walter H. Page, vol. 1:247-248.
12.  Page to President Wilson, Jan. 6, 1914, ibid., vol. 1:251-252.
13.  British Ambassador Sir Cecil Arthur Spring Rice to Foreign Secretary Sir Edward Grey, Washington, Feb. 7, 1914, PWW, vol. 29:231-233.
14Ibid., 1, n. 1.
15.  Remarks at a Press Conference, Mar. 5, 1914, ibid., 313.
16.  Arthur Walworth, Woodrow Wilson, 3rd ed. (New York, 1978), Bk. I, 388-391; John Milton Cooper, The Warrior and the Priest: Woodrow and Theodore Roosevelt (Cambridge, Massachusetts, 1983), 235; Aug. Heckscher, Woodrow Wilson (New York, 1991), 325-326.

No comments:

Post a Comment