Wednesday, March 7, 2012

7. Treaty Obligation from the Protestant Reformation to 1919: Part 7 The Old Diplomacy

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.  Here in this present posting, 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 old diplomacy
The ancien régime’s domination of pre-war foreign relations was, during the First World War, dubbed the “Old Diplomacy” as opposed to the “New Diplomacy” now principally identified with the memory of Woodrow Wilson.[1]  For USA historian Barbara Tuchman (1912-1989):
The Great War... lies like a band of scorched earth dividing that time from ours.  In wiping out so many lives which would have been operative on the years that followed, in destroying beliefs, changing ideas, and leaving incurable wounds of disillusion, it created a physical as well as a psychological gulf between two epochs.[2]  
Easy to recover, yet hard to credit is the pre-1914 ambiance of international law and relations — Europe before the Bolshevik Revolution, the fall of the dynasties, Wilsonism and the Versailles Treaty.[3]

Was diplomacy a class specialty?
Nineteenth-century English radicals believed “foreign policy was unnecessary and wars caused by the wickedness of the governing class.”[4]  In 1914, socialists complained about class diplomacy:
From Downing Street to Pekin, the diplomatic service is based on the assumption that the relations of States mean in practice the relations of their upper classes.  Commerce and finance enter into its calculations as they rarely did in earlier centuries, yet diplomacy continues to be the game of courts.[5]  
Debating Britain’s entry into the 1914 war, Liberal MP Edmund Harvey told Parliament:
I am convinced that this war, for the great masses of the countries of Europe, and not for our own country alone, is no people’s war.  It is a war that has been made... by men in high places, by diplomatists working in secret, by bureaucrats who are out of touch with the peoples of the world, who are the remnants of an older evil civilisation which is disappearing by gradual and peaceful methods.[6]  
Similarly, Liberal MP Percy Alport Molteno protested: "This is a continuation of that old and disastrous system, where a few men in charge of the State... make secret engagements, carefully veiled from the knowledge of the people, who are as dumb driven cattle without a voice on the question."[7]  Almost four years later, Liberal MP Charles Trevelyan said: "The old ambassadorial system has failed, and is discredited....  After the War, the old diplomacy of Court and upper classes will be, in the eyes of most people, obsolete and inadequate."[8]

Some of this critique has been validated by historians like Sir Lewis Namier (1888-1960), who believed that until the catastrophe of the First World War, the “diplomatic community had for its background the great French-speaking ‘international’ of the European aristocracy.”[9]  Similarly, Nicolson explained that before 1914 foreign affairs had been a class specialty: "In the old days the conduct of foreign policy was entrusted to a small international élite who shared the same sort of background and who desired to preserve the same sort of world."[10]  Consistent is the account by Cambridge University historian Dr. Zara Steiner:
The diplomats of their period were best at interpreting the world into which they had been born.  With a few notable exceptions, they spoke to each other or to those similarly placed ‘in society’. They operated in a closed circuit and tended to hear each other’s voices.[11]  
She said Europe’s foreign ministers were almost invariably grands seigneurs (magnates) heading institutions displaying marked aristocratic bias:
The foreign ministries remained the strongholds of the aristocracy.  Diplomatic life abroad was socially exclusive and expensive.  Diplomatists shared certain common traditions and assumptions which were only partially obscured by national differences.[12]  
This portrayal is shared by British historian John C.G. Röhl:
In the great embassies of Europe... only an aristocrat of one of the highest-born families could play the role in court society which his position as ambassador demanded.  He had to invite the right people and be invited by them in return in order to represent the interests of his country with dignity — and also in order to collect the secret information which he required for his reports. His wife too had to be acceptable at court and preferably possess money, charm and intelligence.[13]

Great Britain
Social and political change accelerated after the 1906 Liberal election victory, but pre-1914 Britain continued to have a “governing class,” an oligarchy tied to the nobility.  This generalization is particularly apt for British foreign policy.[14]  The seventeen Foreign Secretaries from 1815 to 1914 generally sat in the House of Lords and were, with just one exception, drawn from England’s great families.[15]  “A small self-contained establishment, its tone and ethos... created by the caste from which it recruited its staff.”  This was the Foreign Office as seen by Steiner who added that: “It was indeed the stronghold of the aristocracy and everything was done to preserve its class character and clannish structure.”[16]  However, the Foreign Office was less aristocratic than the Diplomatic Service where recruits were unsalaried, because expected to have some family wealth.[17]  According to British historian Sir David Cannadine:
Before the First World War diplomacy was still preponderantly a small, close-knit, aristocratic and hereditary profession, much favoured by patricians of limited means but good connections.  It was impossible to take the entrance examination without a nomination from a senior figure in the Foreign Office.[18]  
The pre-war Liberal administrations of Henry Campbell-Bannerman and Herbert Henry Asquith did not do much to challenge the old élite’s virtual monopoly of the Foreign Office and the Diplomatic Service.[19]

In the two decades before 1914, the House of Commons tended to concern itself very little with foreign policy, which seldom required legislation and generally was of bipartisan character.  Except for the prime minister and the foreign secretary, the cabinet regularly received less foreign affairs information than the king.[20]  “Actual foreign policy” was thus kept “secret not only from Parliament but from part of the Liberal cabinet.”[21]  By 1912 democratic control of foreign policy became the focus for MPs Arthur Ponsonby and Noel Buxton who, inside the Liberal Party, established an unofficial Foreign Affairs Committee trying to make the Foreign Secretary more responsible to Parliament.[22]  In early 1914, Independent Labourite writer Henry Brailsford said the House of Commons was unable to control the Empire’s foreign policy:
It is preoccupied with domestic questions.  It lacks both the time and the knowledge to check our diplomacy.  It has fewer constitutional rights in this field than any Parliament of Europe.[23]

Imperial Germany
In the Second Reich (1871-1918), “nobles, old and new, retained enormous wealth as well as social and cultural sway with which to bolster their primacy in political society.”[24]  The emperor and his court apparatus directly controlled senior diplomatic appointments and the fundamentals of foreign and armaments policy.[25]   For example, William II was the crucial factor in the fateful decision to build a powerful high seas fleet that sparked the pre-war arms race with Britain.[26] “Noble, wealthy, and Lutheran” were the right adjectives for ambassadors, ministers and members of the Foreign Office’s powerful Political Department IA.  Although the entirely separate consular service was almost wholly middle class, nobility was required for diplomatic postings, except for far-flung capitals like Lima, Caracas, Bogotà and Bangkok.  Foreign Office personnel from 1871 to 1914 were 69% noble. The leading group was the diplomatic service where noble status and private income were generally practical requirements for entry.  In 1914, the diplomatic service had 8 princes, 29 counts, 20 barons, 54 untitled nobles and only 11 commoners.  High birth itself was of primary importance; between 1871 and 1918, thirty-seven German ambassadors were mediatised princes or sons of morganatic royal marriages.[27]

The Habsburg Monarchy
Of Austria-Hungary’s approximately fifty-three million people, fewer than four hundred families were Hofadel — the high aristocracy of the imperial court.  The several Habsburg lands also had their lesser nobilities, supplemented by ennobled officials, soldiers and businessmen.
The feudal element remained sufficiently strong to continue harnessing the economic and financial energy of entrepreneurial capitalists and the expertise of technical and intellectual cadres without granting them access to political society.[28]  
On the eve of the First World War, Austria-Hungary had posted seventy-two senior diplomats, of whom only three were commoners.[29]  Aristocrats and “more or less newly-baked nobles of office” held most senior posts in the foreign ministry; in 1917, commoners were less than 20% of the higher foreign-ministry officials.[30]

The emperor guided foreign policy and chose the foreign minister who sat in neither the Hungarian nor Austrian parliament.[31]  Responsibility for reviewing foreign policy belonged to an annual meeting of delegations drawn from both houses of the two parliaments.[32]  However, the delegates from the upper houses were almost invariably government supporters who joined with the like-minded from the lower houses to forestall real examination.[33]  Domestic politics preoccupied the populace which believed foreign affairs to be the monarch’s prerogative.[34]  
Francis Joseph himself always put [foreign affairs] first, and let no domestic considerations override what he held to be his realm’s foreign political interests. And it was Francis Joseph’s views that mattered, both in respect of priorities and of the general line of foreign policy itself.[35]  
Rebuking his warlike general staff chief, Francis Joseph said: “I’m the one who makes foreign policy; it’s my policy.”[36]  Foreign relations were sometimes influenced by Hungary’s prime minister, but less so by Austria’s.[37]  Although Vienna and Budapest newspapers generated war fever after the Sarajevo assassination, press opinion generally had little influence on Habsburg foreign policy.[38]

Imperial Russia
“The highest-ranking military officers and civil servants continued to be of noble origin and to rise within the service castes that, in spite of being heavily diluted by commoners, nevertheless maintained and reproduced their lordly mentality, bearing, and web of connections.”[39]  A fairly narrow social circle gave Russia its diplomats, of whom those posted to Central and Western Europe were especially well-connected.[40]  The old, landed nobility played a very significant political and social role until the November 1917 Bolshevik revolution.[41] 

The Russian nobility’s position had always been limited because the tsar — explicitly in the 1906 constitution — was the “supreme autocratic power” with real executive authority.[42]  He read diplomatic dispatches daily and determined Russia’s foreign policy.[43]  Foreign Minister in the First Provisional Government, Paul Miliukov blamed the 1904-1905 Russo-Japanese War on “the shady dealers at the Tsar’s court,” pointed to the 1905 Björkö Treaty which Nicholas II signed “without the knowledge of the Russian foreign minister,” and alleged that the tsar himself had directed policy in the 1908-1909 Bosnian annexation crisis.[44]  

The late 19th century saw some influence exercised by a relatively small foreign-policy community, including the imperial family, exalted courtiers, high government officials, senior churchmen, prominent businessmen, generals, admirals, and leading publishers and writers.[45]  Public opinion began to play an increasingly important role after the 1905 revolution. In particular, there was from 1907 the chauvinism of the partly-elected Duma representing the landowning nobility, big business, prosperous peasants, and a section of the professional class — groups fatefully reinforcing the growing nationalism of the traditional élite.[46]

The French Republic
Under the Third Republic, aristocrats remained pre-eminent in high society and some even attained important diplomatic and military posts.  However, France was the exception that proves the rule, because the aristocracy was generally “relegated to the margin of the republican polity.”[47]  The diplomatic corps had been 89% noble before the failed coup d’état (1877) of Marshall Patrice de MacMahon.  Thereafter, republicans poured into the civil service to replace “the nobles and wealthy bourgeois who had governed France by family right.”[48]  The proportion of nobles in the diplomatic service was about 7% in the decade before 1914.[49]  This caused Nicolson to remark that France’s pre-war diplomacy suffered because of middle-class practitioners:
The French Embassy... some of whose members were deficient in social polish, found itself at a disadvantage in snobbish posts such as St. Petersburg or Vienna when in contact with the local society.  The leaders of these societies regarded themselves as the cream of European aristocracy and did not enjoy mingling with people whom they regarded as bourgeois in their origins and manners.[50]

Royal disdain for republican States
Rejecting republican France as a full partner in international relations was a consistent theme for Germany’s William II who in 1904 wrote:
[France’s President Émile] Loubet and [Foreign Minister] Delcassé are no doubt experienced statesmen.  But, they not being Princes or Emperors, I am unable to place them — in a question of confidence like this one — on the same footing as you [Tsar Nicholas II] my equal, my cousin and my friend.[51]  
In 1916, William II was equally supercilious in conversation with the USA Ambassador:
The Kaiser talked of peace and how it should be made and by whom, declaring that ‘I and my cousins, [King] George [V] and [Tsar] Nicholas [II], will make peace when the time comes.’ ... He made it clear that mere democracies like France and the United States could never take part in such a conference.  His whole attitude was that war was a royal sport, to be indulged in by hereditary monarchs and concluded at their will.[52]

Notes to Part 7

[1].  For “old diplomacy,” see Joll, Origins of the First World War, 42-68.
[2].  Barbara W. Tuchman, The Proud Tower: A Portrait of the World Before the War, 1890-1914 (New York, 1966), xv.
[3].  F.S. Northedge, The League of Nations: Its Life and Times 1920-1946 (Leicester, 1986), 4-24.
[4]Taylor, “International Relations,” 562, and Trouble Makers, 97.
[5].  Henry Noel Brailsford, The War of Steel and Gold, 3rd ed. (London, 1915), 152.
[6].  Aug. 3, 1914, Parl. Deb. (Commons), 5th ser., vol. 65:1839.
[7]Ibid., 1851-1852.
[8].  Mar. 19, 1918, Parl. Deb. (Commons), 5th ser., vol. 104:846.
[9].  Sir Lewis Namier, Personalities and Powers: Selected Essays (New York, 1965), 113.
[10].  Nicolson, Diplomacy, 245.
[11].  Zara S. Steiner, The Foreign Office and Foreign Policy 1898-1914 (Cambridge, 1969), 210.
[12]Ibid., 22.
[13].  Röhl, Kaiser and His Court, 156; cf. Cecil, “The Foreign Office,” 586-587.
[14].  Gosses, Management of British Foreign Policy, 19-39; Mayer, Persistence of Old Regime, 88-95.
[15]. Gosses, Management of British Foreign Policy, 19-39, 140-142, 147; Steiner, Foreign Office and Foreign Policy, 2.
[16].  Steiner, Foreign Office and Foreign Policy, 16.
[17].  Steiner, Foreign Office and Foreign Policy, 17, 20.
[18].  Cannadine, Aspects of Aristorcracy, 218.
[19].  Mayer, Persistence of Old Regime, 95.
[20].  Gosses, Management of British Foreign Policy, 164-167.
[21].  Hobsbawm, Age of Empire, 322; Fry, Lloyd George and Foreign Policy, vol. 1:66; for foreign-policy split in Liberal Party, see Keith M. Wilson, The Policy of the Entente: Essays on the Determinants of British Foreign Policy 1904-1914 (Cambridge, 1985).
[22]Ibid., 149; Steiner, Foreign Office and Foreign Policy, 167; Peter G. Richards, Parliament and Foreign Affairs (Toronto, 1967), 22-23.
[23].  Brailsford, War of Steel and Gold, 202.
[24].  Mayer, Persistence of Old Regime, 95-102, at 101.
[25].  Röhl, Kaiser and His Court, 3-4; Cecil, German Diplomatic Service, 191; Mann, Deutsche Geschichte, 540; Fritz Fischer, Germany’s Aims in the First World War (New York, 1967), 5, 8.
[26].  Röhl, Kaiser and His Court, 119-120; Michael Howard, “The Edwardian Arms Race,” in The Lessons of History (New Haven and London, 1991), 81-96.
[27].  Röhl, Kaiser and His Court, 136, 152, 155-156; Kurt Doß, “The History of the German Foreign Office,” in Times Survey of Foreign Ministries, 225-233.
[28].  Mayer, Persistence of Old Regime, 109-119, at 115-116.
[29].  Samuel R. Williamson, Austria-Hungary and the Origins of the First World War (London, 1991), 39.
[30].  Bittner, “Das österreichisch-ungarische Ministerium des Äußern,” 838-839; Friedrich Engel-Janosi, Geschichte auf dem Ballhausplatz: Essays zur österreichischen Außenpolitik 1830-1945 (Graz, 1963), 16-17; by 1918, commoners made up 44% of diplomats and 66% of Vienna-based personnel, see Helmut Rumpler, “The Foreign Ministry of Austria-Hungary 1848-1918,” in Times Survey of Foreign Ministries, 54.
[31].  Bridge, From Sadowa to Sarajewo, 10-11, 15-16, 19; Hantsch, “Kaiser Franz Joseph und die Außenpolitik,” 25-39.
[32].  Ernst C. Hellbling, “Das österreichische Gesetz vom Jahre 1867 über die gemeinsamen Angelegenheiten der Monarchie,” in Der österreichisch-ungarische Ausgleich von 1867: Vorgeschichte und Wirkungen, ed. Peter Berger (Vienna, 1967), 64-89, at  69-70, 74-76.
[33].  Bittner, “Das österreichisch-ungarische Ministerium des Äußern,” 827-828; Bridge, From Sadowa to Sarajewo, 17-18.
[34].  Alexander von Musulin, Das Haus am Ballplatz: Erinnerungen eines österreichisch-ungarischen Diplomaten (Munich, 1924), 233; Engel-Janosi, Ballhausplatz, 10.
[35]C.A. Macartney, The Habsburg Empire 1790-1918 (New York, 1969), 586, 749, 779.
[36].  Nov. 15, 1911, quoted by Engel-Janosi, Ballhausplatz, 9; by Bridge, From Sadowa to Sarajewo, 10; for Francis Joseph’s role in foreign policy, see Rumpler, “The Foreign Ministry of Austria-Hungary,”53-54, 56-57; he was central to decision-making until his Nov. 1916 death, see Steiner, Times Survey of Foreign Ministries, 11.
[37].  A. P_ibram, Austrian Foreign Policy 1908-1918 (London, 1923), 12; Bittner, “Das österreichisch-ungarische Ministerium des Äußern,” 829, 831; Solomon Wank, “Foreign Policy and the Nationality Problem in Austria-Hungary, 1867-1914,” Austrian History Yearbook, vol. 3, Part 3 (1967), 37-56, at 41; Anton Radvánszky, “Das ungarische Ausgleichsgesetz vom Jahre 1867,” in Der österreichisch-ungarische Ausgleich von 1867, 90-112, at 102-103, and 112, n. 36.
[38]Ibid., 26-28; Williamson, Austria-Hungary and Origins of the First World War, 30-32.
[39].  Mayer, Persistence of Old Regime, 119-123, at 122.
[40]Lieven, Russia and the Origins of the First World War, 61.
[41].  Dominic Lieven, Russia’s Rulers under the Old Regime (New Haven, 1989), 27-29, 31.
[42].  Sergei V. Utechin, Russian Political Thought: A Concise History (New York, 1964), 73-74; Ger F. Van Der Tang, “The Russian Constitution of 1906,” in Constitutions That Made History, ed. Albert Blaustein and Jay Sigler (New York, 1988), 256-258; see also 259, Code of Fundamental State Laws (Apr. 23, 1906), Ch. 1: “On the Supreme Autocratic Power,” Article 4: “To the All-Russian Emperor belongs the Supreme Autocratic Power. To obey his power, not only through fear, but also for the sake of conscience, is commanded by God Himself.”
[43].  Blaustein and Sigler, ed., Constitutions, 259: Article 12: “Our Sovereign the Emperor shall be the supreme leader of all external relations of the Russian State with foreign powers.  He shall likewise determine the course of the international policy of the Russian State.”  Article 13: “Our Sovereign the Emperor shall declare war and conclude peace as well as treaties with foreign states.”  Sir Bernard Pares, The Fall of the Russian Monarchy: A Study of the Evidence (New York, 1939), 69, 67-68, 71-72, 168-169, 174, 183-184; Lieven, Nicholas II, 92, 110, 117, 121-122, 146, and Russia and the Origins of the First World War, 54, 57-58; Teddy J. Ulricks, “The Tarist and Soviet Ministry of Foreign Affairs, in Times Survey of Foreign Ministries, 517, 519-520.
[44].  Secret Treaty between Germany and Russia, 24 Aug. 1905, signed at Björkö, in CTS, vol. 199:123; Paul Miliukov, Political Memoirs 1905-1917, trans. Carl Goldberg (Ann Arbor, 1967), 176-177, 184; confirmed by Lieven, Nicholas II, 98-101, 156-157, 175, 192-193.
[45].  George F. Kennan, Decline of Bismarck’s European Order, 27, and The Fateful Alliance: France, Russia, and the Coming of the First World War (New York, 1984), 4-5.
[46].  Hugh Seton-Watson, The Decline of Imperial Russia 1855-1914 (New York, 1952), 317-318; George F. Kennan, “The Breakdown of the Tsarist Autocracy,” in Revolutionary Russia, ed. Richard Pipes (Cambridge, Massachusetts, 1968), 1-15, at 11; Lieven, Russia and the Origins of the First World War, 64, 118-138; Figes, A People’s Tragedy, 247-251.
[47].  Mayer, Persistence of Old Regime, 102-109, at 102, 105.
[48].  François Furet, Revolutionary France 1770-1880, trans. Antonia Nevill (Oxford, 1992), 534-535.
[49].  Cecil, German Diplomatic Service, 67.
[50].  Nicolson, Diplomacy, 251-252.
[51].  Neues Palais, Dec. 21, 1904, in The Kaiser’s Letters to the Tsar, transcrib. Isaac Don Levine and ed. N.F. Grant (London, 1920), 152; for William II’s Jan. 29, 1906 letter mocking newly-elected French President Clément Fallières, see ibid., 223-224.
[52].  As told (Jan. 26, 1916) to Edward Mandell House, who asked Ambassador James W. Gerard if William II was “crazy or whether he was merely posing,” see The Intimate Papers of Colonel House, ed. Charles Seymour (Boston and New York, 1926), vol. 2: 138-139; William II wanted (Jan. 29, 1917) any peace conference to exclude the USA whose military potential was undervalued, see Fischer, Germany’s Aims, 305-309.

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