3. Treaty Obligation from the Protestant Reformation to 1919: Part 3 The Treaty Not Part of International Law

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. 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.^[1]  Inner Temple 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:

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.^[2]  

More to the point, Lorimer asked whether treaties are properly speaking part of international law.^[3]  This is a significant question because a large body of evidence suggests that into the 20^th century, the treaty per se tended to be excluded from the ambit of international law, then more commonly identified with customary law.^[4]  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 1920 World Court Statute, all of which reflect something of the historic dichotomy between “treaties” and “international law.”^[5]

Custom: Lawler’s case

In 1860, the British law officers gave Foreign Secretary Lord John Russell a legal opinion^[6] on the conduct of Nicholls, a British warder from Gibraltar, who had crossed over into Spain to apprehend Patrick Lawler, an escaped British convict.  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.^[7]  Because the law officers judged Nicholls’ behaviour to be “a plain breach of international law,” they advised that Lawler be returned to Spain for release.^[8]

    

Custom: USA blockade of the Confederacy

During the American Civil War (1861-1865), French and British textile workers were idle because Confederate cotton could not pierce a USA naval blockade proclaimed by President Lincoln in April 1861.^[9]   Between the USA and Britain, the law of blockade was then almost entirely customary.^[10]  British Prime Minister Lord Palmerston described for Queen Victoria a House of Commons debate as to whether the USA blockade was “consistent with the law of nations” or “illegal” as a “violation of principles of international law.”^[11]  Discussing this “question of international law,” Foreign Secretary Russell assured Parliament that the USA blockade was “such as the law of nations recognizes.”^[12]  The British government was pleased with a law officers’ assessment that the USA blockade was legal because otherwise there would have been added public pressure for Britain to intervene on the Confederacy’s side.^[13]

Custom: 'The Trent'

During the American Civil War, Britain and the USA came perilously close to conflict due to a high seas incident perceived to be governed by customary international law.^[14]  On November 8, 1861, a USA warship stopped and boarded the British mail steamer Trent travelling from Cuba to England.  The Trent was carrying Confederate representatives who were seized and carried off to prison in the USA.  Admiralty counsel and the law officers gave Prime Minister Palmerston legal opinions which caused him to tell the Queen that the arrest was a “gross outrage and violation of international law.”^[15]  “An undoubted breach of international law” was the concurring view of Victoria who knew enough about the discipline to debate legal points with her ministers.^[16]  The Royal Navy off the USA coast, reinforcements for Canada, and France’s diplomatic support for Britain persuaded President Lincoln to free the Confederate captives who boarded a British warship near Cape Cod.^[17]

Custom: Russian soldiers in Ottoman Serbia

Queen Victoria prepared a memorandum about the Eastern question in 1876, when the Ottoman sultan was still de jure sovereign of Serbia.  Customary international law was then the source of the rule that, during peacetime, a foreign State and its officials may not interfere in the internal affairs of another country.^[18]  Accordingly, Victoria wrote:

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.^[19]

Treaty: end of the Cracow Republic

A February 1846 Polish insurrection led Austria, Prussia and Russia to extinguish the Cracow Republic — a “free city” under the 1815 Vienna Treaty.^[20]  Not having consented to this change, Britain and France denounced Cracow’s annexation to Austria as the first direct and open violation of the 1815 treaty.  However, the abundant diplomatic papers about the unilateral alteration of Cracow’s status are significantly without any allegation of breach of international law.^[21]  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.”^[22]

With French public opinion favouring the Poles, Foreign Minister François Guizot “solemnly protested against the suppression of the Cracow Republic as an act positively contrary to the letter and spirit of the June 9, 1815 Vienna Treaty.”  Guizot instructed 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.  France 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.^[23] 

 

Treaty: denunciation of the Black Sea clauses

The Black Sea was neutralized by the 1856 Paris Treaty ending the Crimean War.^[24]  The Russians felt humiliated that they lacked the right to maintain a Black Sea fleet or fortify their seacoast there.^[25]   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.^[26]

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.^[27]

Gladstone’s memorandum was the basis for the reply which Gorchakov received from Granville, who also failed to allege a violation of international law.^[28]   Such a charge was similarly absent from the Foreign Secretary’s otherwise strong comments to Queen Victoria:

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 Europe to ask for a revision, it would have been difficult to refuse to consider the merits of the question.  Russia’s present mode of proceeding is perfectly inadmissible.^[29]

Treaty: tripartite guarantee of Ottoman Empire

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.”^[30]  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.”^[31]  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 Russia for the Turks was politically impossible.^[32]  Among other excuses, Foreign Secretary Lord Derby pleaded the doctrine of changed circumstances, rebus sic stantibus:

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.^[33]

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.^[34]  In Britain, anti-Russian feeling had already been running high because of strong differences over Bulgaria.^[35]  Commenting on this “violation of the Treaty of Berlin,”^[36] British Foreign Secretary Lord Rosebery wrote to Queen Victoria that:

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.^[37]   

Sharing indignation, Victoria asked her Foreign Secretary what he intended to do about “the astounding news of the insolent and dishonest conduct of Russia in declaring that Batoum is no longer a free port.”^[38]   Lord Rosebery had the British Ambassador in St. Petersburg read the Russian Foreign Minister a dispatch charging Russia with “an infraction of the Treaty of Berlin” casting doubt on “the binding force and sanctity of international engagements.”^[39]   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.

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,^[40] 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.^[41]  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^[42] and in 1908 USA treaties with Mexico, Italy, Britain, Norway, Portugal, and Spain.^[43]  Other uses of the identical disjunctive text appear in the 1912 general arbitration agreement between Panama and Spain,^[44] the 1913 treaties between Austria-Hungary and Switzerland^[45] and between Portugal and Sweden^[46] and in 1914 British conventions with both Switzerland and Portugal.^[47]  Although applying to “all disputes,” 1911 treaties between Argentina and Venezuela and between Brazil and Italy also distinguished “controversies relating to the interpretation and application of treaties” from those “relating to the interpretation and application of a principle of international law.”^[48]  The same distinction can be found in general arbitration agreements between Peru and Venezuela (1912)^[49] and between Argentina and France (1914).^[50]

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.”^[51]  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.”^[52]  Covenant, Article 13, similarly contrasts “disputes as to the interpretation of a treaty” with differences “as to any question of international law.”^[53]  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’.”^[54]

Notes to Part 3

---

[1].  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.”

[2].  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 (London, 1795), vol. 2:236-240.

[3].  Lorimer, Institutes, vol. 1:37.

[4].  Parry, “Foreign Policy and International Law,” 91.

[5].  Clive Parry, The Sources and Evidences of International Law (Manchester, 1965), 37.

[6].  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 19^th Century Foreign Office: An Administrative History (London, 1971), 69-73.

[7].  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, 5^th ed. (Paris, 1905), Part 1, Ch. 1, § 19:140-143.

[8].  Clive Parry, ed. Law Officers’ Opinions to the Foreign Office 1793-1860 (Westmead, 1970), vol. 84:422-426; vol. 85:50-56.

[9].  Brian Jenkins, Britain and the War for the Union, vol. 1 (Montreal-London), 229-232, 244-248, 254-257, 263-265.

[10].  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, 8^th ed., ed. Alexander Pearce Higgins (Oxford, 1924), 845-871.

[11].  Viscount Palmerston to Queen Victoria, Mar. 7, 1862, The Letters of Queen Victoria, [hereinafter LQV] 2^nd ser., ed. George Earle Buckle, vol. 1 (London, 1926), 22-23.

[12].  Mar. 10, 1862, Lords, Parl. Deb., 3^rd ser., vol. 165:1237-1243.

[13].  Jenkins, Britain and the War for the Union, vol. 1:255-256.

[14].   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 England 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 Jenkins, Britain and the War for the Union, vol. 1:181-202.

[15].  Viscount Palmerston to Queen Victoria, Nov. 29, 1861, in LQV, 1^st ser., ed. Arthur Christopher Benson and Viscount Esher, vol. 3 (London, 1907), 595-596.

[16].  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.

[17].  Jenkins, Britain and the War for the Union, vol. 1:211-228.

[18].  Diez de Medina, Nociones de derecho internacional moderno, § 19:140-143.

[19].  Memorandum by Queen Victoria, Oct. 17, 1876, LQV, 2^nd ser., vol. 2:487-488.

[20].  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.

[21].  British and Foreign State Papers: 1846-1847, vol. 35 (London, 1860), 1042-1107.

[22].  Viscount Palmerston to Viscount Ponsonby, Nov. 23, 1846, ibid., 1082-1085.

[23].  Guizot to Count Flahaut, Paris, Dec. 3, 1846, ibid., 1092-1095.

[24].  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.

[25].  “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.

[26].  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.

[27].  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 3^rd ser., vol. 81 (London, 1952), Part 1: 1868-1871:154-156.

[28].  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.

[29].  To Queen Victoria, Nov. 12, 1870, LQV, 2^nd 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 [1856] Treaty,” “arbitrary violation of guaranteed contracts” and “breach of faith and violation of European law.”

[30].  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.

[31].  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.

[32].  A.J.P. Taylor, The Trouble Makers: Dissent over Foreign Policy 1792-1939 (London, 1957), 74-86.

[33].  Apr. 19, 1877, Lords, Parl. Deb., 3^rd ser., vol. 233:1436-1437.

[34].  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, 2^nd 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.

[35].  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 (Cambridge, 1967), 556-557.

[36].  Foreign Secretary Lord Rosebery to British Ambassador, St. Petersburg, July 13, 1886, in McNair, Law of Treaties, 498-499.

[37].  Lord Rosebery to Queen Victoria, July 3, 1886, LQV, 3^rd ser., ed. George Earle Buckle, vol. 1 (London, 1930), 152-153.

[38].  Queen Victoria to Lord Rosebery, Windsor Castle, July 4, 1886, ibid., 153-154.

[39].  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.

[40].  CTS, vol. 187:410-428.

[41].  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.

[42].  Arbitration Convention between France and Italy, 25 Dec. 1903, signed at Paris, in CTS, vol. 194:365.

[43].  CTS, vol. 206, USA arbitration treaties with Mexico (288-289), Italy (354), Britain (360), Norway (363-364), Portugal (368-369), and Spain (418-419).

[44].  CTS, vol. 216:351-352.

[45].  CTS, vol. 218:354-356.

[46].  CTS, vol. 219:30-31.

[47].  CTS, vol. 220:85-86, 357-358.

[48].  CTS, vol. 214:153-156, 276-279.

[49].  CTS, vol. 215:317-319.

[50].  CTS, vol. 220:141-143.

[51].  Parry, Sources and Evidences, 36.

[52].  Part 1, Preamble, Covenant of the League of Nations, 28 June 1919, signed at Versailles, in CTS, vol. 225:396-406.

[53].  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.

[54].  Parry, Sources and Evidences, 37.

4. Treaty Obligation from the Protestant Reformation to 1919: Part 4 The Treaty Governed by the Doctrine of Good Faith

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 or "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.  Here in this posting, 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 or "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 doctrine of "good faith"

Natural law can be understood as "a set of reasons for action that can be and often are sound as reasons and therefore normative for reasonable people addressed by them."^[1]  For centuries natural law has in this sense been perceived as including a doctrine of good faith, i.e. the moral requirement pacta sunt servanda, agreements are to be kept. This key principle has long been recognized by the world’s main legal systems, including the classical law of nations and modern public international law.^[2]  Thus, Cornelius van Bynkershoek (1673-1743) taught:

The dictates of good faith and expediency require that international agreements should be observed, and to these must be attributed as much force as to the strongest pledge. In fact no pledge has more force than one that rests wholly upon greatness of soul.^[3]  [...]  If you destroy good faith, you destroy all intercourse between princes, for intercourse depends expressly upon treaties.^[4]  

Similarly, Emmerich de Vattel (1714-1767) said:

He who violates his treaties violates at the same time the Law of Nations, for he shows contempt for that fidelity to treaties which the Law of Nations declares sacred, and — as far as is in his power — he renders it of no effect.  He is doubly guilty, in that he does an injury both to his ally and to all Nations and the human race as well.^[5]  

USA "Founding Father" John Jay (1745-1829) was a successful lawyer and diplomat before becoming the first Chief Justice of the United States in 1789. A year earlier, Jay had expounded the nature of treaty obligation while urging ratification of the USA Constitution, including Article 6(2) that stipulates, inter alia, that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." Consistent with Jay's command of international law and relations, his plea was in layman's language the familiar "natural law" basis for pacta sunt servanda. Namely, Jay rested his case entirely on reciprocity and practicality:

Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.^[6]

Throughout the 19^th century, good faith in performing treaties was regarded as a self-evident moral or "natural law" requirement, logically necessary for the existence of international agreements.^[7]  Representative was Middle Temple barrister and Admiralty Court Judge Sir Robert Phillimore (1810-1885) who argued:

This reciprocal observance of good faith, whether it be plighted to the payment of debts or to the fulfillment of stipulations of treaties, is binding upon all nations.  This good faith is the great moral ligament which binds together the different nations of the globe.^[8]

If treaty terms not fulfilled?

The relationship of the doctrine of good faith to the 19th-century treaty can be illuminated by returning to Gorchakov’s 1870 attempt to repudiate unilaterally the Black Sea clauses of the 1856 Paris Treaty.  To avoid conflict between Britain and Russia, German Chancellor Otto von Bismarck suggested an international conference, which met in London.^[9]  In January 1871, Russia and other States signed a separate protocol declaring:

that it is an essential principle of the law of nations that a power can neither free itself from treaty obligations nor modify treaty terms except through the contracting parties’ consent in an amicable accord.^[10]  

This means a conventional obligation would remain binding despite a unilateral plea of invalidity by reason of greatly changed circumstances, i.e. the doctrine of rebus sic stantibus.^[11]  However, the London Protocol is silent about the precise sense in which the moral or natural-law requirement to keep treaty promises is supposed to be binding.  What is to happen if a party fails to fulfill treaty terms?  Is the sanction “legal” or of a different order?

Were treaties "legally" binding?

“Treaties are like roses and pretty young women — they last while they last,” said French President Charles de Gaulle.^[12]  Similarly,  John R. Bolton, formerly USA Assistant Secretary of State, in 1997 wrote: "Treaties are ‘law’ only for U.S. domestic purposes.  In their international operations treaties are simply ‘political’ obligations."^[13]


Although arguably misrepresenting today’s international law, these two extremely interesting assertions are perhaps still useful as a doorway to understanding the positive law of nations, as it was before 1919. Then, any suggestion that the moral or natural-law requirement to keep treaty promises could be legally binding would have sounded odd, principally due to the availability of war as a lawful international institution, with legal effects including suspension or cancellation of most treaties between the belligerents.^[14]  As long as the State was fully entitled to wage war in defiance of treaty, how was it possible to view treaty obligation as a matter of law?^[15]  Recognizing that classical international law did not see treaties as stricto sensu legally binding also clarifies modern treaty law’s doctrine of good faith, the essentially vestigial character of which is otherwise missed.^[16]

Thomas More (1478-1535) was a Lincoln’s Inn barrister, diplomat, and ultimately Lord Chancellor. While a London municipal court judge, he wrote Utopia where treaty obligation is discussed notably without reference to law and lawyers, who otherwise figure prominently in the text.  Aware of the “royal practice of keeping treaties badly,” More is tongue in cheek about how scrupulously kings fulfill their promises:

In Europe, of course, and especially in these regions where the Christian faith and religion prevail, the dignity of treaties is everywhere kept sacred and inviolable. This is partly because the princes are all so just and virtuous, partly also from the awe and reverence that everyone feels for the Popes.  Just as the Popes themselves never promise anything that they do not scrupulously perform, so they command all other princes to abide by their promises in every way.  If someone quibbles over it, by pastoral censure and sharp reproof they compel him to obey.  They think, and rightly, that it would be shameful if people who are specifically called ‘the faithful’ would act in bad faith.^[17]  

This is still the medieval context, also presented by More’s friend, famed humanist Desiderius Erasmus (1466-1536).  In a work dedicated to the future Habsburg Emperor Charles V, Erasmus, without once mentioning law, sees the “good faith of princes in fulfilling their agreements” as a Christian duty.^[18]

Oxford University Regius Professor of Civil Law, Alberico Gentili (1552-1608) dissented from predecessors who had taught that treaties are to be expounded as far as possible “by law and civil reason (à lege, & ratione civili)” including the principle of restitution for spoliation:

For it is not the case in warlike contests because it is true in the controversies of the courts.  In the latter, of course, restitution is always made to the one who is thus despoiled, since the spoliation is always unjust when the dispute is settled at law.  But in our case [i.e. treaty disputes between princes] we have the action of force and the sword.^[19]

Sir Francis Bacon (1561-1626) was a scientist, philosopher, Gray’s Inn barrister, and ultimately Lord Chancellor.  While Solicitor General, he portrayed treaty obligation not as a matter of law, but as an amalgam of good faith and celestial oaths.^[20]  Championing the inductive method, he was understandably "much beholden to Machiavelli and other writers of that class, who openly and unfeignedly declare or describe what men do, and not what they ought to do."^[21]  In this empirical vein, Bacon focused on the absence of judges to decide cases between princes, who inter se were said to be free from “the rules of civil laws,” but subject to “the law of nations or the law of honour.”  Bacon believed that:

wars are no massacres and confusions [but rather] the highest trials of right; when princes and states... put themselves upon the justice of God, for the deciding of their controversies by such success as it shall please Him to give on either side.^[22]  

He matched this metaphor with a simile — “foreign war is like the heat of exercise, and serveth to keep the body [politic] in health.”^[23]  In this light, Bacon saw kings driven by “necessity, great god to the powerful.”  Sophisticated was his view that treaties are kept, not because of oaths and good faith, but because of “danger to the State and commonality of interest.”^[24]

Also at the dawn of the classical system, Grotius explained: “The distinction between acts of good faith and those granting a strict legal right, in so far as it is drawn from Roman Law, does not belong to the law of Nations.”^[25]  German jurisconsult, diplomat and professor Samuel Rachel (1628-1691) was more explicit in admitting that the sanction for breach of treaty was extra-legal: “The whole State exposes itself to Divine and human vengeance.”^[26]  This was a line of reasoning followed by Bynkershoek:

Between the several independent nations there is no legal compulsion since the laws do not apply to international affairs, and the sole source of compulsion lies in the law.^[27]  [...] Civil law guards the contracts of individuals, considerations of honour (bona fides), those of princes.^[28]  

Similarly, Vattel said “sovereigns cannot be constrained, otherwise than by force of arms, to fulfil their engagements.”^[29]  Distinguishing between the natural and positive law of nations, rationalist philosopher of the German Enlightenment Christian Wolff (1679-1754) affirmed that natural law commands that agreements be kept, but recognized that “there may be a violation of natural law without a penalty and that is to be endured.”^[30]

Prussia’s King Frederick the Great (1712-1786) was familiar with international law as described by Grotius and Pufendorf.^[31]  Pointing to the interplay between good faith and compelling State interest (intérêt d’État), Frederick distinguished treaties from legally enforceable contracts under municipal law:

To me it appears clear and evident that a private person ought to be scrupulously attached to his word, even though given inconsiderately.  If failed by another, he can always have recourse to the protection of the laws, and whatever results therefrom, it is but one individual who suffers; but to which courts shall a sovereign have recourse if another prince violates his engagements towards him?^[32]  

This was a rhetorical question, because Frederick knew well that sovereigns were entitled to settle disputes with the sword.^[33]

The role of force in the law of nations was also evident to polymath and Chief of the Great German General Staff, Count Helmuth von Moltke (1800-1891). He reminded Professor Bluntschli that the problem with treaty performance is that here on earth there is no judge to enforce international agreements.^[34]  Moltke the Elder knew that his was an age in which a broken treaty entitled the disappointed party to request reparation, failing which, there was still an unrestricted right to take counter measures, including the right to wage war (jus ad bellum). At the end of the day, war was the final court of kings.^[35]  Some saw this self-help as a grave defect, while others dignified war as an international institution.  For example, Yale University President Theodore Dwight Woolsey (1801-1889) declaimed:

Nations are reformed by the sobering influences of war.  Nations are exalted by contending in war for something which is good.  Let not this dread sanction, then, be thought to be of no use. War often cures the internal maladies which peace has fostered.^[36]

Having studied law at Göttingen and Berlin Universities,^[37] Bismarck too appreciated the absence of legal remedies for breach of treaty. Thus, his thoughtful reaction to Gorchakov’s 1870 Black Sea démarche:

The principle of civil law that the one party’s failure to perform gives the other party not a right to withdraw from the contract but rather the right to begin a court action, certainly does not apply to treaties, in relation to which there is no established judicial capacity.  It cannot be assumed with any certainty either that a claim that a treaty has been violated justifies withdrawing from the treaty or that, in the event of the one party’s breach, the other party remains obliged to continue to respect the treaty.  Such theoretical statements are inadmissible in international relations.  Rather, international law relies on the good faith of governments to distinguish between justified and unjustified withdrawal from treaty obligations.^[38]  

In retirement, Bismarck continued to see treaty performance as a matter of good faith, albeit with a generous allowance for pleading rebus sic stantibus due to changing “political, material and moral conditions.”^[39]

Bismarck’s emphasis on “good faith” was echoed in the treatment of the “obsolescence of treaties” by Thomas Lawrence who admitted that treaties cannot remain unchanged forever:

As circumstances alter the engagements made to suit them go out of date.  When, and under what conditions, it is justifiable to disregard a treaty, is a question of morality and not of law.  Each case much be judged on its own merits.^[40]  

Lawrence thought the principle of the 1871 London Protocol untenable:

A single obstructive power would have the right to prevent beneficial changes which all the other States concerned were willing to adopt.  It would have stopped the unification of Italy in 1860 on account of the protests of Austria, and the consolidation of Germany in 1866 and 1871 because of the opposition of some of her minor States.  International Law certainly does not give a right of veto on political progress to any reactionary member of the family of nations who can discover in its archives some obsolete treaty, on the fulfillment of whose stipulations it insists against the wishes of all the other signatory powers. In truth these questions transcend law.  They are outside its sphere; and its rules do not apply to them.^[41]  

Similarly trying to explain rebus sic stantibus, Westlake said:

Evidently the right of denouncing a treaty is an imperfect one, demanding for its perfection in any case better definition than in the present state of international law is attainable, but not therefore to be condemned in toto, only to be exercised with a grave sense of moral responsibility.^[42]

Clearly, classical international law offered no legal remedy for breach of treaty, i.e. absent a compromissory clause, a disappointed party lacked a right of recourse to any form of compulsory settlement, whether third-party or international.^[43]  Moreover, even where such arbitration operated, the obligation to comply with the arbitral award was itself binding, not in law, but in “good faith” (de bonne foi).^[44]  USA lawyer and diplomat, Joseph Hodges Choate (1832-1917) explained to the 1907 Hague Peace Conference:

The whole matter is one of mutual confidence and good faith.  There is no other sanction for the execution of treaties.  If  we have not confidence one with another, why are we here?  There is no other rule among us than that of mutual good faith.  That is the only compelling power which can restrain or enforce our conduct as nations.^[45]  

USA international lawyer, public servant and law teacher James Brown Scott (1866-1943) agreed:

In a certain sense all international contracts rest upon good faith, because an international executive with power to enforce obedience is unknown to international law.^[46]

This understanding of treaty obligation’s nature is reflected in a 1919 meeting between the Senate Foreign Relations Committee and President Wilson.  Obviously drawing on the jurisprudence of British legal philosopher John Austin (1790-1859), Wilson argued: “In international law the word ‘legal’ does not mean the same as in national law, and the word hardly applies.”^[47]  In the same academic vein, he told the Senators:

When I speak of a legal obligation, I mean one that specifically binds you to do a particular thing under certain sanctions.  That is a legal obligation.  Now a moral obligation is of course superior to a legal obligation, and, if I may say so, has a greater binding force; only there always remains in the moral obligation the right to exercise one’s judgment as to whether it is indeed incumbent upon one in those circumstances to do that thing.  In every moral obligation there is an element of judgment.  In a legal obligation there is no element of judgment.^[48]

"Moral" requirement to keep treaty promises?


Bismarck’s 1870 reference to the “good faith of governments” is directly to the point — Gladstone had not criticized Gorchakov for denying that treaties are legally binding.  Rather, the Russian Foreign Minister was faulted for his claim that treaties had lost a measure of their “moral sanction.”^[49]  Neither fortuitous nor exceptional, Gorchakov’s reliance on morality reflected a widespread understanding of treaty obligation.

Pufendorf was no innovator in arguing that the requirement to keep promises is part of the natural law established by God:

The efficacy and virtue of natural obligation chiefly consists in this, that it binds a man’s conscience; or that every person at the same time when he fails of performing it, is sensible that he has displeased Almighty God; to whose mercy as he owes his being, so he knows he ought to pay all possible obedience to His laws.  And although we cannot indeed, in the law of nature, discover any precise and determinate penal sanctions, yet we ought on all accounts to acknowledge, that it is enforced by some such due fruits and consequences; and that the Author of nature will infallibly inflict great evil on those who violate this obligation, which the just performers of it shall as infallibly escape.  For the truth of which belief, amongst many arguments, one very considerable presumption is that remorse of conscience, which attends the actors of wickedness, even whilst they are in the fair hopes of escaping human discovery, and human punishment.^[50]

British philosopher, historian, and economist David Hume (1711-1776) also saw treaty obligation within the context of morality.  His Treatise of Human Nature argued that “authorized by the practice of all ages... there is a system of morals calculated for princes.” Allowing for the exigencies of international relations, Hume said:

Though the morality of princes has the same extent, yet it has not the same force as that of private persons, and may lawfully be transgressed from a more trivial motive....  We must necessarily give a greater indulgence to a prince or minister, who deceives another; than to a private gentleman, who breaks his word of honour.^[51]

This emphasis on treaty obligation’s moral nature was later shared by British Foreign Secretary Viscount Castlereagh.  Pointing to the treaties ending the Napoleonic Wars, he said:

The Consent of all the European States, France included, has not only been given to this settlement, but their Faith has been solemnly pledged to the strict observance of its arrangements...  So solemn a Pact, on the faithful execution and observance of which all Nations should feel the strongest Interest, may be considered, as under the Protection of a moral guarantee, of the highest Nature...^[52]

Albert Venn Dicey (1835-1922) was Vinerian Professor of English Law at Oxford University.  He pointed to his colleague, the Chichele Professor of International Law as teaching “law which is not law” and expounding “those rules of public ethics which are miscalled international law.”^[53]  This shows how impressed Victorians were by Austin’s view that international law is not positive law, but merely:

opinions generally current among nations. [International duties are] enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally received and respected.^[54]

An earlier Austinian was USA jurist and diplomat Henry Wheaton (1785-1848) who saw a moral rationale for principles like pacta sunt servanda:

The rules of international morality recognized by these writers [i.e. “public jurists”] are founded on the supposition, that the conduct which is observed by one nation towards another, in conformity with these rules, will be reciprocally observed by other nations towards it.  The duties which are imposed by these rules are enforced by moral sanctions, by apprehension on the part of sovereigns and nations of incurring the hostility of other States, in case they should violate maxims generally received and respected by the civilized world.  These maxims may, indeed, be violated by those who choose to suffer the consequences of that hostility; but they cannot be violated with impunity, nor without incurring general obloquy.  The science which teaches the reciprocal duties of sovereign States is not, therefore a vain and useless study, as some have pretended.  If it were so, the same thing might be affirmed of the science of private morality, the duties inculcated by which are frequently destitute of the sanctions of positive law, and are enforced merely by conscience and social opinion.^[55]

Lincoln’s Inn barrister Mountague Bernard (1820-1882) was Professor of International Law and Diplomacy at Oxford University.  He stressed moral obligation because he knew independent societies to be free from enforceable legal obligation:

A Treaty is an international contract. A contract is an accepted promise.  The moral obligation of a contract is the duty of not disappointing the expectation which the promise is calculated to create; and the strength of the duty depends on the strength and the reasonableness of that expectation.  Why it is a duty — or, in other words, why it is and ought to be a general rule that men should keep their promises — no one will need to be told who considers how great and useful a part such expectations play in human affairs.  The reason of the rule, and therefore the rule itself, apply to all nations as they apply to private men.  It is not then incorrect to say that the performance of Treaties is a matter of moral obligation.^[56]  

Bluntschli too saw respecting treaties as a necessary condition for the world’s political organization.  Pointing to morality, he said: “The obligation to respect treaties is based in conscience and the sentiment of justice.”^[57] 

Reacting to Gorchakov’s 1870 Black Sea démarche, British philosopher and economist John Stuart Mill (1806-1873) explained the requirement to keep treaty promises entirely within the framework of “moral obligation” and “national faith.”  Mill suggested that Russia’s plea of rebus sic stantibus was perhaps analogous to the predicament of an honest man facing difficult circumstances in which “different moral obligations conflict.”^[58]  


Morality was also the focus for former Solicitor-General Sir William Harcourt (1827-1904).  While Whewell Professor of International Law at Cambridge University, he quoted 1867 statements by Foreign Secretary Lord Stanley to portray the 1856 Paris Declaration on Maritime Law as a “moral contract” which the British government was “morally bound to fulfill.”^[59]

Writing about “the extent to which treaties are binding,” Thomas Lawrence was specific about morality’s role: 

The ancient and mediaeval fashion of giving pledges and hostages for the fulfilment of treaties has passed away, and states now rely upon their own power, and upon considerations of self-interest and feelings of duty, to secure the observance of engagements entered into with them.^[60]  

Lawrence’s “feelings of duty” were moral rather than legal as evidenced by his discussion of the failure to implement Article 15 of the 1878 Berlin Treaty.^[61]  He said that Turkey’s right to deploy regular troops to defend Eastern Rumelia had been known to be a dead letter when the treaty was signed:

A stipulation of the great International Treaty of Berlin was thus ignored from the beginning, and the consent of the contracting parties was never even asked; yet no accusations of bad faith have been bandied about, and the strictest moralists would hardly venture to say that the provision should have been acted upon at the risk of kindling another war.^[62]

Notes to Part 4

---

[1].  John Finnis,"Natural Law Theories," Stanford Encyclopedia of Philosophy, at  http://plato.stanford.edu/entries/natural-law-theories/   last accessed, May 27, 2012.

[2].   McNair, Law of Treaties, 493-494; for medieval doctrine, see Harold J. Berman, Law and Revolution (Cambridge, Mass., 1983), 246; "Muslims must abide by their stipulations," see Joseph Schacht, The Origins of Muhammadan Jurisprudence, 5^th impres. (Oxford, 1975), 174, 181.

[3].  Bynkershoek, Bk. II, Ch. 10:191.

[4].  Bynkershoek, Bk. II, Ch. 10:190.

[5].  Vattel, Bk. II, Ch. 25, § 221:188.


[6].  John Jay, "The Powers of the Senate, From the New York Packet," Friday, March 7, 1788, Federalist Papers, No. 64, at http://avalon.law.yale.edu/18th_century/fed64.asp  last accessed on May 26, 2012.

[7].  Mountague Bernard, Four Lectures on Subjects Connected with Diplomacy (London, 1868), Lecture IV: The Obligation of Treaties, 163-205, at 168.

[8].  Sir Robert Phillimore, Commentaries on International Law (Philadelphia, 1854-55), vol. 1, Part 2, Ch. 7, § 136:145; vol. 2, Part 5, Ch. 6, § 45:56.


[9].  J.A.R. Marriott, The Eastern Question: An Historical Study in European Diplomacy, 2^nd ed. (Oxford, 1918), 282; Taylor, Struggle for Mastery, 215-216.

[10].  British Foreign and State Papers 1870-1871, vol. 61 (London, 1877), 1198-1199.

[11]. The 1871 London Protocol’s “procedural” rule is reconciled with the “substantive” rebus sic stantibus plea by Vamvoukos, Termination of Treaties, 207-209.

[12].  Letter of Sreedhan Roy in the Economist (London), 18 Mar. 1972 at 6, cited by Shabtai Rosenne, Developments in the Law of Treaties 1945-1986 (Cambridge, 1989), 116.

[13].  John R. Bolton, “Rule of Law: U.S. Isn’t Legally Obligated to Pay the U.N.,” Wall Street Journal, Nov. 17, 1997, A27; a full critique of Bolton's position was provided in 1997 by Professor Frederic L. Kirgis, "Treaties as Binding International Obligation," which appears in ASIL Insights, on the website of the American Society of Interational Law (ASIL), http://www.asil.org/insight9.cfm, last accessed on May 10, 2012, at 7:09 am.

[14].  Ex-Lord Chancellor Thurlow said: “All subsisting treaties were at an end as soon as a war was commenced with those who were parties to them.  It behooved those, therefore, who plunged the country into the war, not to have set the treaties loose by commencing hostilities; but it by no means followed as a matter of course, that ancient treaties were necessarily to be revived and renewed in every treaty of peace; that must depend on the will of the contracting parties.”  Lord Chancellor Eldon replied that not all former treaties were abrogated by failure to affirm them in the peace treaty, see May 4, 1802, Lords, The Parliamentary History of England From the Earliest Period to the Year 1803 (London, 1820), vol. 36:596-597; Lassa Francis Lawrence Oppenheim, International Law, 2^nd ed. (London, 1912), vol. 2, § 99:129-131; McNair, Law of Treaties, 695-728.

[15].  Posed by Parry, “Foreign Policy and International Law,” 95.

[16].  For “good faith” today, see Rosenne, Developments in the Law of Treaties, 135-179.

[17].  Sir Thomas More, Utopia, ed. George M. Logan and Robert M. Adams (Cambridge, 1989), Bk. II, 86-87.

[18].  Desiderius Erasmus, The Education of a Christian Prince, trans. Neil M. Chesire and Michael J. Heath (Cambridge, 1997), § 8: Treaties, 93-95.

[19].  Alberico Gentili, De iure belli libri tres, in Classics of International Law, ed. James Brown Scott (Oxford, 1933), Bk. III, Ch. 15—vol. 1: Facsimile of 1612 Latin ed., 600; vol. 2: Trans. John C. Rolfe, 365-366.

[20].  “Styx, sive foedera (Styx, or Treaties),” in De sapientia veterum (Of the Wisdom of the Ancients), in The Works of Francis Bacon, Baron of Verulam, Viscount St. Alban and Lord High Chancellor of England, ed. James Spedding, Robert Leslie Ellis and Douglas Dennon Heath (London, 1858-1874), vol. 6:633-664, 706-707.


[21].  De dignitate et augmentis scientiarum libri ix, in Works of Francis Bacon, Bk. VII, Ch. 2— English, vol. 5:17; Latin, vol. 1:729.

[22].  Certain Observations Made Upon a Libel Published This Present Year, 1592, in Works of Francis Bacon, vol. 8:146; for a late reference to wars as “suits of appeal to the tribunal of God’s justice,” see Considerations Touching a War with Spain, 1624, in Works of Francis Bacon, vol. 14: 470; Bacon’s contemporary Shakespeare features trial by combat twice in Richard II, see Act I, Scene 3, and Act IV, Scene 1.

[23].  “Of the Greatness of Kingdoms and Estates,” in Essays or Counsels, Civil and Moral in Works of Francis Bacon, vol. 6:450.

[24].  “Styx, or Treaties,” in Works of Francis Bacon, vol. 6:634, 706-707.

[25].  Grotius, Bk. II, Ch. 16, § 11:414 (English); 278 (Latin): “Discrimen actuum bonae fidei & stricti juris quatenus ex jure est Romanus, ad jus gentium non pertinet.”  For “natural” and “legal” obligation, see Bk. II, Ch. 14, § 6:383; treaty obligation in law (de jure) and in honour (ex honestate) were distinguished by Richard Zouche who—contrary to Bacon, Gentili and Grotius—thought public treaties to be governed by civil law, see Iuris et iudicii fecialis, sive, iuris inter gentes, et quaestionum de eodem explicatio, in Classics of International Law, ed. Thomas Erskine Holland (Washington, 1911), Part 1, Section IV, § 3, vol. 1: Facsimile of 1650 Latin ed., 22-23; vol. 2: Trans. J.L. Brierly, 23-24.

[26].  Samuel Rachel, De jure naturae et gentium, in Classics of International Law (Washington, 1916), ed. Ludwig von Bar, vol. 1: Facsimile of 1676 Latin ed.; vol. 2: Trans. John Pawley Bate, Dissertation II, § 78:201.

[27].  Bynkershoek, Bk. II, Ch. 10:191.

[28].  Bynkershoek, Bk. II, Ch. 10—190 (English); 251 (Latin): “Pacta privatorum tuetur Jus Civile, pacta Principum bona fides.”

[29].  Vattel, Bk. II, Ch. 12, § 156:161.

[30].  Wolff, vol. 2, preface, 7.

[31].  “Read Pufendorf and Grotius, there you will make some fine discoveries,” Frederick to Voltaire, Oct. 9, 1773, in Oeuvres posthumes de Frédéric II, Roi de Prusse (Berlin, 1788), vol. 9: 199; Frederick believed unprovoked aggressive war to violate international law, see Considérations sur l’état présent du corps politique de l’Europe (1736), in Oeuvres posthumes, vol. 6:52, and Histoire de la guerre de sept ans, in Mémoires de Frédéric II, Roi de Prusse: écrits en français par lui-même, ed. E. Boutaric and E. Campardon (Paris, 1866), vol. 2:220.

[32].  Histoire de mon temps, avant-propos de 1775, in Mémoires de Frédéric II, vol. 1:5-6; for the “good faith of treaties,” see Histoire de mon temps, in vol. 1:115-116; Histoire de la guerre de sept ans, in vol. 2:226-227, 295; Mémoires depuis la paix de Hubertsbourg 1763 jusqu’à la fin du partage de la Pologne 1775, in vol. 2:335, 350-351, 362.

[33].  Histoire de la guerre de sept ans, in Mémoires de Frédéric II, vol. 1:450.

[34].  “Les lois de la guerre sur terre—Lettres de M. le comte de Moltke et de M. Bluntschli,” Revue de droit international et de législation comparée, vol. 13 (1881), 79-84, at 80.

[35].  Andres Bello, Principios de derecho internacional, 4^th ed. (Paris, 1882), 127; Mably, Droit public de L’Europe, in Oeuvres de Mably, vol. 8:118; as we have already seen in the works of Sir Francis Bacon, war as “law suit” was a common metaphor, probably originating in medieval trial by combat, e.g., see Charles Jenkinson, A Discourse on the Conduct of the Government of Great Britain, in Respect to Neutral Nations, During the Present War, 2^nd ed. (London, 1759), 3, 10.

[36].  Theodore Dwight Woolsey, Introduction to the Study of International Law, 6^th ed. (London, 1888), § 228:407-408.

[37].  A.J.P. Taylor, Bismarck: The Man and the Statesman (New York, 1955), 14-15.

[38].  Aufzeichnung des Bundeskanzlers Grafen von Bismarck, 21 Nov. 1870, Document Nr. 222, Die Große Politik der Europäischen Kabinette 1871-1914, vol. 2:13-16, at 15; A.J.P.Taylor, “Bismarck’s Morality,” in From Napoleon to Lenin: Historical Essays (New York, 1966), 82-86; Gordon A. Craig and Alexander L. George, “The Christian Statesman: Bismarck and Gladstone,” in Force and Statecraft: Diplomatic Problems of Our Times, 255-268.

[39].  Bismarck: The Memoirs, Being the Reflections and Reminiscences of Otto, Prince von Bismarck, Written and Dictated by Himself after His Retirement From Office, trans. A.J. Butler, facsimile of 1899 ed. (New York, 1966), vol. 2:270, 273-274, 283-284.

[40].  Lawrence, Principles of International Law, Part 2: Law of Peace, Ch. V, § 154:288.

[41].  Ibid., 288-289.

[42].  Westlake, International Law, Part 1: Peace, 296.

[43].  Lawrence’s Wheaton, 505: “The independent societies of men, called States, acknowledge no common arbiter or judge, except such as are constituted by special compact. The law by which they are governed, or profess to be governed, is deficient in those positive sanctions which are annexed to the municipal code of each distinct society.  Every State has therefore a right to resort to force, as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society.  Each State is also entitled to judge for itself, what are the nature and the extent of the injuries which will justify such a means of redress.”

[44].  Convention for the Pacific Settlement of International Disputes, 29 July 1899, signed at the Hague, in CTS, vol. 187:410-428, Article 18: “La Convention d’Arbitrage implique l’engagement de se soumettre de bonne foi à la sentence arbitrale”; Article 31: “Les Puissances qui recourent à l’arbitrage signent un Acte spécial (compromis) dans lequel sont nettement déterminés l’object de litige, ainsi que l’étendue des pouvoirs des Arbitres. Cet Acte implique l’engagement des Parties de se soumettre de bonne foi à la sentence arbitrale”; cf. Convention for the Pacific Settlement of International Disputes, 18 Oct. 1907, signed at the Hague, in CTS, vol. 205:233-250, Article 37: “L’arbitrage international a pour objet le règlement de litiges entre les États par les Juges de leur choix et sur la base du respect du droit.  Le recours à l’arbitrage impliquent l’engagement de se soumettre de bonne foi à la sentence.”

[45].  Quoted by Scott, Hague Peace Conferences, vol. 1:365.

[46].  Ibid., vol. 1:304.

[47].  Conversation with the Senate Foreign Relations Committee, White House, Aug. 19, 1919, PWW, vol. 62:339-411, at 364; Wilson was consistent with John Austin, see The Province of Jurisprudence Determined, 2^nd ed. (London, 1861), 177, and Lectures on the Philosophy of Positive Law, ed. Robert Campbell (London, 1904), Part 1, § 3:160.

[48].  Conversation with the Senate Foreign Relations Committee, White House, Aug. 19, 1919, PWW, vol. 62:339-411, at 361.

[49].  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, vol. 2:5-9.

[50].  Pufendorf, Bk. III, Ch. 4, §§ 2, 6:205, 207-208.

[51].  David Hume, A Treatise of Human Nature, ed. Sir Lewis Amherst Selby-Bigge, 2^nd ed., rev. Peter Harold Nidditch (Oxford, 1978), Bk. III, Part 2, Sec.11: “Of  the Laws of Nations,” 567-569; for a prince’s greater justification in breaking faith for public versus private advantage, see Of the Useful and the Honourable in The Essays of Michel de Montaigne, trans. George Ives (New York, 1946), vol. 2, Bk. III, Ch. 1:1081-1083.

[52].  Memorandum on the Treaties of 1814 and 1815, Aix-la-Chapelle, Oct. 1818, Doc. 5, in Temperley, Foundations of British Foreign Policy, 39-46, at 40, where Castlereagh describes the link with State responsibility: “A breach of the Covenant by any one State is an Injury, which all the other States may, if they think fit, either separately or collectively resent, but the Treaties do not impose by express stipulation, the doing so, as matter of positive obligation. ...the offending State [is] to be brought to reason by such of the injured States, as might at the moment think fit to charge themselves with the Task of defending their own rights, thus invaded.”

[53].  Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 10^th ed., intro.  & ed. E.C.S. Wade (London, 1962), 22.

[54].  Austin, Province of Jurisprudence Determined, 177.

[55].  Wheaton’s “Preface to 3^rd ed., Berlin, 1845," in Lawrence’s Wheaton, xiv.

[56].  Bernard, “The Obligation of Treaties,” 168-169.

[57].  Bluntschli, Bk. VI, Ch. 1, § 421:214-215.

[58].  John Stuart Mill, “Treaty Obligations,” The Fortnightly Review, new ser., vol. 8 (1870), 715-720.

[59].  Mar. 2, 1877, Commons, Parl. Deb., 3^rd ser., vol. 232:1339-1340; reference is to Edward Henry, Lord Stanley (later 15^th Earl of Derby).

[60].  Lawrence, Principles of International Law, Ch. 5, § 154:287.

[61].  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 179.

[62].  Lawrence, Principles of International Law, Ch. 5, § 154:289.